```

[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Notices]
[Pages 43287-43298]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18251]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

 [Docket No. EERE-2006-BC-0132]
RIN 1904-AC18

Building Energy Standards Program: Determination Regarding Energy 
Efficiency Improvements in the Energy Standard for Buildings, Except 
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 final determination.

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

SUMMARY: The Department of Energy (DOE) has determined that the 2007 
edition of the Energy Standard for Buildings, Except Low-Rise 
Residential Buildings, American National Standards Institute (ANSI)/
American Society of Heating, Refrigerating and 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 
determined that the quantitative analysis of the energy consumption of 
buildings built to Standard 90.1-2007, as compared with buildings built 
to Standard 90.1-2004, indicates national source energy savings of 
approximately 3.9 percent of commercial building energy consumption. 
Additionally, DOE has determined site energy savings are estimated to 
be approximately 4.6 percent. Upon publication of this affirmative 
final determination, States are required to certify that they have 
reviewed the provisions of their commercial building code regarding 
energy efficiency, and as necessary, updated their code to meet or 
exceed Standard 90.1-2007. Additionally, this notice provides guidance 
to States on Certifications, and Requests for Extensions of Deadlines 
for Certification Statements.

DATES: Certification statements by the States must be provided by July 
20, 2013

ADDRESSES: Certification Statements must be addressed to the Buildings 
Technologies Program-Building Energy Codes Program Manager, U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Forrestal Building, Mail Station EE-2J, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121.

FOR FURTHER INFORMATION CONTACT: Michael Erbesfeld, U.S. Department of

[[Page 43288]]

Energy, Office of Energy Efficiency and Renewable Energy, Forrestal 
Building, Mail Station EE-2J, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121, (202) 287-1874, e-mail: 
michael.erbesfeld@ee.doe.gov. For legal issues contact Mrs. Kavita 
Vaidyanathan, U.S. Department of Energy, Office of the General Counsel, 
Forrestal Building, Mail Station GC-71, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121, (202) 586-0669, e-mail: 
Kavita.Vaidyanathan@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction
    A. Statutory Requirements
    B. Background
    1. Publication of Standard 90.1-2007
    2. Preliminary Determination
    3. Public Comments Regarding the Preliminary Determination
II. Summary of the Comparative Analysis
    A. Qualitative Analysis
    1. Discussion of Detailed Textual Analysis
    2. Results of Detailed Textual Analysis
    B. Quantitative Analysis
    1. Discussion of Whole Building Energy Analysis
    2. Results of Whole Building Energy Analysis
    C. Final Determination Statement
III. Filing Certification Statements With DOE
    A. Review and Update
    B. Certification
    C. Requests for Extensions to Certify
IV. Regulatory Analysis
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the National Environmental Policy Act of 1969
    D. Review Under Executive Order 13132, ``Federalism''
    E. Review Under the Unfunded Mandates Reform Act of 1995
    F. Review Under the Treasury and General Government 
Appropriations Act of 1999
    G. Review Under the Treasury and General Government 
Appropriations Act of 2001
    H. Review Under Executive Order 13211
    I. Review Under Executive Order 13175

I. Introduction

A. Statutory Requirements

    Title III of the Energy Conservation and Production Act, as amended 
(ECPA), establishes requirements for the Building Energy Efficiency 
Standards Program. (42 U.S.C. 6831 et seq.) Section 304(b) of ECPA 
provides that whenever the ANSI/ASHRAE/IESNA Standard 90.1-1989 
(Standard 90.1-1989 or 1989 edition), or any successor to that code, is 
revised, the Secretary must make a determination, not later than 12 
months after such revision, whether the revised code would improve 
energy efficiency in commercial buildings and must publish notice of 
such determination in the Federal Register. (42 U.S.C. 6833 (b)(2)(A)) 
The Secretary may determine that the revision of Standard 90.1-1989 or 
any successor thereof, improves the level of energy efficiency in 
commercial buildings. If so, then not later than two years after the 
date of the publication of such affirmative determination, each State 
\1\ is required to certify that it has reviewed and updated the 
provisions of its commercial building code regarding energy efficiency 
with respect to the revised or successor code. (42 U.S.C. 
6833(b)(2)(B)(i)) The State must include in its certification a 
demonstration that the provisions of its commercial building code, 
regarding energy efficiency, meet or exceed the revised standard. (42 
U.S.C. 6833(b)(2)(B)(i))
---------------------------------------------------------------------------

    \1\ The term ``State'' is defined to include each of the several 
States, the District of Columbia, the Commonwealth of Puerto Rico, 
and any territory and possession of the United States. (42 U.S.C. 
6832(11))
---------------------------------------------------------------------------

    If the Secretary makes a determination that the revised standard 
will not improve energy efficiency in commercial buildings, State 
commercial codes shall meet or exceed the last revised standard for 
which the Secretary has made a positive determination. (42 U.S.C. 
6833(b)(2)(B)(ii)). On December 30, 2008, the Secretary published a 
determination in the Federal Register updating the reference code to 
Standard 90.1-2004. 73 FR 79868.
    ECPA also requires the Secretary to permit extensions of the 
deadlines for the State certification if a State can demonstrate that 
it has made a good faith effort to comply with the requirements of 
Section 304 of ECPA and that it has made significant progress in doing 
so. (42 U.S.C. 6833(c))

B. Background

1. Publication of Standard 90.1-2007
    ASHRAE and the Illuminating Engineering Society of North America 
(IESNA) approved the publication of the 2007 edition of Energy Standard 
for Buildings Except Low-rise Residential Buildings, in December 2007.
    The Standard was developed under ANSI-approved consensus standard 
procedures. Standard 90.1 is under continuous maintenance by a Standing 
Standard Project Committee (SSPC) for which the ASHRAE Standard 
Committee has established a documented program for regular publication 
of addenda or revisions, including procedures for timely, documented, 
consensus action on requests for change to any part of the standard. 
The ANSI approves addenda prior to their publication by ASHRAE and 
IESNA and therefore prior to their inclusion in a new version of 
Standard 90.1. ANSI approved the final addendum for inclusion in 
Standard 90.1-2007 on December 18, 2007. The 2007 edition was published 
in December 2007.
2. Preliminary Determination
    DOE published in the Federal Register a Notice of Preliminary 
Determination for Standard 90.1-2007 that the 2007 edition would 
achieve greater energy efficiency in buildings subject to the code, 
than the 2004 edition. 75 FR 54117, September 30, 2010. In arriving at 
a final determination, the DOE first reviewed all significant changes 
between the 2004 edition and the 2007 edition of Standard 90.1. 
Standard 90.1 is complex and covers a broad spectrum of the energy 
related components and systems in buildings ranging from simple storage 
buildings to complex hospitals and laboratories.
    The size of buildings addressed range from those smaller than 
single family homes to the largest buildings in the world. The approach 
to development of the standard used in the 2007 edition was not changed 
from that used for the 2004 edition, with no changes to the scope or 
the way components are defined. DOE determined that because no 
significant changes were made to the structure, scope, or component 
definitions of Standard 90.1-2004, a similar methodology used for the 
analysis of Standard 90.1-2004 could be utilized for the analysis of 
Standard 90.1-2007, consisting of a qualitative comparison of the 
textual changes to requirements in Standard 90.1-2007 from Standard 
90.1-2004, and a quantitative estimate of the energy savings developed 
from whole building simulations of a standard set of buildings 
constructed to both Standards over a range of U.S. climates. DOE chose 
to modify several details of how the quantitative analysis would be 
done, including changes in the simulation tool used, the building 
models, and the procedure and data for weighting of results by building 
type and climate. A detailed discussion of the analysis methodology, 
which was subject to public comment in 2009, can be found in the Notice 
of Preliminary Determination for Standard 90.1-2007. 75 FR 54117 (Sept. 
30, 2010)
3. Public Comments Regarding the Preliminary Determination
    DOE accepted public comments on the preliminary determination for 
Standard 90.1-2007 until October 4, 2010. DOE received submissions from 
a total of five different entities.

[[Page 43289]]

    The Responsible Energy Codes Alliance (RECA) submitted a written 
comment (Docket No. EERE-2006-BC-0132-0004.1, pgs. 2-4) stating that it 
strongly supports the Department's determination that the 2007 edition 
of ASHRAE Standard 90.1 would achieve greater energy efficiency in 
buildings than the 2004 edition. RECA also commented that the 
Department should follow up individually with each State to ensure that 
States are complying with their obligations under federal law and that 
the Department should make the certification letters that States submit 
available on the Department's Web site, along with any additional 
materials provided by the Department to support state compliance. RECA 
went on to comment that the Department's decision to publish a Notice 
of Preliminary Determination rather than a Notice of Determination is 
unnecessary to comply with the Energy Policy Act and that adding an 
extra level of administrative procedure is likely to further delay 
determinations on future editions of the model energy codes. Lastly, 
RECA commented that the Secretary of Energy should carefully consider 
the magnitude of each addendum approved for ASHRAE 90.1 in between 
publications and exercise statutory discretion to issue determinations 
any time the code would be significantly improved.
    In response to RECA's comment concerning following up with the 
States in their certification efforts, DOE notes that under section 
304(d) and (e) of ECPA DOE provides technical assistance and funding to 
States to implement the requirements of Section 304, and to improve and 
implement State commercial building energy efficiency codes, including 
increasing and verifying compliance with such codes. As certification 
letters are received from the States, they will be made public on the 
Department's Web site at http://www.energycodes.gov/states/. The 
certification letters will also be forwarded to the State Energy 
Program for their consideration. DOE further notes that a listing of 
those States that have submitted certification letters from their 
respective governors under the requirements of the American Recovery 
and Reinvestment Act is available at http://www.energy.gov/InYourState.htm. The letters can be found on each State's Web site 
under Recovery Act activity.
    With regard to issuing a preliminary determination, the Department 
believes that there is value in providing an opportunity for public 
comment on its analysis, particularly given that a positive 
determination could potentially impact States. Lastly, DOE interprets 
the language in Section 304(b)(2) of ECPA to mean that when a 
comprehensive revision of the ASHRAE Standard is published (which in 
this case is ASHRAE Standard 90.1-2007), then that revised or successor 
standard triggers the Secretary's obligation to issue a determination 
as to whether the revised standard improves energy efficiency. While 
the addenda process is part of the ongoing maintenance of the standard 
and thus continually modifies or revises existing standard over time, 
it would be an unreasonable reading of the statute to categorize each 
addenda in this maintenance process as a ``revised or successor 
standard'' within the meaning of Section 304(b)(2) of ECPA, so as to 
require a determination by the Secretary. Such an interpretation of the 
statute would put an unreasonable burden both on the States and DOE. 
For the States, a determination by the Secretary requires some State 
action, and what is required depends upon whether the Secretary issues 
an affirmative or a negative determination. If the Secretary were to 
issue a determination after each addenda was published, the States 
would be constantly required to change their codes. This would affect 
the stability and certainty of State commercial building codes.
    The American Chemistry Council (ACC) submitted a written comment 
(Docket No. EERE-2006-BC-0132-0005.1, pg. 1) stating that it strongly 
supports the Department's determination that the 2007 edition of ASHRAE 
Standard 90.1 would achieve greater energy efficiency in buildings than 
the 2004 edition.
    The Edison Electric Institute (EEI) submitted a written comment 
(Docket No. EERE-2006-BC-0132-0002.1, pgs. 2-3) supporting the 
preliminary determination with a suggested modification to the 
estimated source energy savings. EEI has one concern about the analysis 
from the Federal Register notice, and that is the statement: ``To 
estimate primary energy, all electrical energy use intensities were 
first converted to primary energy using a factor of 10,800 Btus primary 
energy per kWh'' and ``Natural Gas EUI's in the prototypes were 
converted to primary energy using a factor of 1.089 Btus primary energy 
per Btu of site natural gas energy use''. EEI stated that the 
electricity estimate value of 10,800 is overstated as EIA ``assigns'' a 
heat rate to all renewable electricity generation, which accounted for 
over 10.4% of U.S. generation in 2009. This type of ``accounting'' 
overstates the primary energy usage from electricity by a significant 
amount (over 10.4%). EEI also stated concerns over the natural gas 
estimate value appearing to only estimate upstream energy losses for 
domestic land-based gas drilling activities, while ignoring the losses 
associated with the importation of liquefied natural gas (LNG), 
increased energy associated with deepwater offshore drilling, increased 
energy and other energy losses associated with the hydraulic fracturing 
process (energy used to move and heat water, energy used to move and 
pump sand, and the energy used to produce and mix all of the chemicals 
used in the process), and energy losses from the flaring of natural gas 
due to imports of imported petroleum products.
    EEI further stated that there is no agreement among entities that 
have performed recent analyses as to what the correct upstream 
multipliers should be and that a review of these documents shows 
significant differences in the estimates. EEI stated that since there 
is no agreement among different parties as to what the appropriate 
multipliers are, with all of the variability in assumptions, that DOE 
publish its determination on the basis of site energy analytics, which 
can be measured and verified with real world data that has much lower 
uncertainty and error ranges.
    The Department has chosen to be consistent within their energy 
analyses by using Energy Information Administration's (EIA) conversion 
factors solely and by choosing not to mix and match conversion factors. 
DOE recognizes that these conversion factors are estimates and not true 
conversion factors due to some types of utility energy inputs not 
having known conversion factors and other inputs having multiple 
generally accepted conversion factors. See a more detailed discussion 
at http://www.eia.doe.gov/emeu/mecs/mecs94/ei/elec.html. That said, DOE 
still believes that despite the fact that these are estimates, the 
source energy analysis is important to the discussion of global 
resources and environmental issues. It should also be noted that the 
site energy savings are provided in the determination. Ultimately the 
focus of this determination is on estimating whether the adoption of 
the revised standard as the basis of State building codes would result 
in energy savings as compared to the previous version.
    The Building Codes Assistance Project (BCAP) submitted a written 
comment (Docket No. EERE-2006-BC-0132-0003.1, pgs. 1-2) supporting the 
DOE's determination and suggests that DOE follow up with the States 
after publication of the Final Determination

[[Page 43290]]

as well as making public which States comply with the statutory 
requirements to submit certification letters within two years of 
publication. As stated above in response to RECA's comments, DOE 
intends to make public the certification letters received from States, 
and under section 304(e) of ECPA DOE provides funding and technical 
assistance to States to implement the requirements of Section 304, and 
to improve and implement State residential and commercial building 
energy efficiency codes, including increasing and verifying compliance 
with such codes.
    The Natural Resources Defense Council (NRDC) submitted a written 
comment (Docket No. EERE-2006-BC-0132-0006.1, pgs. 2-4) stating the 
following three issues: (1) They urge DOE to use this opportunity to 
clarify States' commitments with regards to updating and implementing 
their building energy codes; (2) clarify the limits of preemption under 
section 327 of the Energy Policy and Conservation Act (EPCA) (42 U.S.C. 
6297); and (3) revise the energy efficiency standards for Federal 
buildings to reflect the most recent model energy codes. In regards to 
NRDC's first comment see response to RECA's comments above. In 
addition, Section III below describes the process for States to file 
certification statements with DOE.
    NRDC's second comment is in reference to the preemption 
requirements applicable to the Federal energy efficiency standards for 
appliances. Essentially, section 307(f) of ECPA limits the ability of 
State and local building codes to require minimum energy efficiency 
levels of covered appliances. (See, 42 U.S.C. 6297(e)) It is important 
to note that today's final determination does not require States to 
adopt a specific building code. Today's final determination requires a 
State to review and update as necessary the provisions of its 
commercial building code regarding energy efficiency to ensure that the 
State's code provisions meet or exceed the energy efficiency 
requirements of Standard 90.1-2007. (42 U.S.C. 6833(b)(2)(B)(i)) 
Section 304 of ECPA does not prescribe how State code provisions must 
achieve the required energy efficiencies. Given that this final 
determination does not require States to adopt a specific method for 
achieving energy efficiency levels of covered appliances but rather it 
allows for States to adopt building codes that meet or exceed the 
energy efficiency requirements of Standard 90.1-2007. As such, there is 
no potential conflict between the State code provisions of ECPA and the 
preemption language in EPCA.
    In response to NRDC's final comment, DOE intends to update the 
baseline standards for Federal buildings that reference Standard 90.1 
following the issuance of this final determination for Standard 90.1-
2007.

II. Summary of the Comparative Analysis

    DOE's preliminary qualitative analysis was not revised from the 
preliminary determination for Standard 90.1-2007. DOE considers the 
preliminary qualitative analysis to be final and in support of this 
final determination for Standard 90.1-2007. The preliminary 
quantitative analysis was revised to reflect updated energy cost values 
based on EIA statistics for 2010. Both analyses can be found at http://www.energycodes.gov/status/determinations_com.stm, [Docket No. EERE-
2006-BC-0132].

A. Qualitative Analysis

1. Discussion of Detailed Textual Analysis
    DOE performed a detailed analysis of the differences between the 
textual requirements and stringencies of the two editions of Standard 
90.1 in the scope of the standard, the building envelope requirements, 
the building lighting and power requirements, and the building 
mechanical equipment requirements.
    The emphasis of the detailed requirement and stringency analysis 
was on looking at the specific changes that ASHRAE made in going from 
Standard 90.1-2004 to Standard 90.1-2007. ASHRAE publishes changes to 
their standards as addenda to the preceding standard and then bundles 
all the addenda together to form the next edition. ASHRAE processed 44 
addenda to Standard 90.1-2004 to create Standard 90.1-2007. Each of 
these addenda was evaluated by DOE in preparing this determination.
    In addition, each standard has multiple ways to demonstrate 
compliance, including a prescriptive set of requirements by section of 
the standard, various tradeoff approaches within those same sections, 
and a whole building performance method (Energy Cost Budget; ``ECB''). 
For each addendum we identified whether it applies to the prescriptive 
requirements, or one of the tradeoff paths provided for in the 
envelope, lighting, or mechanical sections, or the ECB whole building 
performance path. For each addendum DOE identified the impact on the 
stringency for that path to compliance.
    DOE's review and evaluation indicates that there are significant 
differences between the 2004 edition and the 2007 edition. DOE's 
overall conclusion is that the 2007 edition will improve the energy 
efficiency of commercial buildings.
    However, DOE identified two changes in textual requirements that 
taken alone appear to represent a reduction in stringencies and could 
decrease energy efficiency. The two changes are:
     Addendum p, which broadens the implicit definition of 
``visually impaired'' as used in exceptions provided in the standard, 
which allow for lighting power to not be included in the calculated 
lighting power densities subject to maximum limits, and
     Addendum av, which provides for an explicit shading credit 
allowed for louvered projections, where such a credit was not 
explicitly provided for in 90.1-2004.

DOE believes that in these cases, the reduction in stringency was not 
considered a major impact. For the other addenda, DOE determined that 
the remaining addenda either represented no change in stringency, or 
indicated a positive change in stringency corresponding to improved 
efficiency. Overall, DOE concluded the changes in textual requirements 
and stringencies are ``positive,'' in the sense that they would improve 
energy efficiency in commercial construction.
2. Results of Detailed Textual Analysis
    A qualitative analysis of all addenda to Standard 90.1-2004 that 
were included in Standard 90.1-2004 was conducted. All 44 addenda 
processed by ASHRAE in the creation of Standard 90.1-2007 from Standard 
90.1-2004 were evaluated by DOE for their impact on energy efficiency. 
DOE determined whether that addenda would have a positive, neutral, or 
negative impact on overall building efficiency. Table-1 shows the 
potential number of positive and negative changes for each section of 
Standard 90.1.
    The results of the textual analysis indicate that the majority of 
changes (30 of the total of 44 listed) were neutral. These include 
editorial changes, changes to reference standards, changes to 
alternative compliance paths, and other changes to the text of the 
standard that may improve the usability of the standard, but do not 
generally improve or degrade the energy efficiency of building. There 
were 11 changes that were evaluated as having a positive impact on 
energy efficiency and 2 changes that were evaluated as having a 
negative impact on energy efficiency.

[[Page 43291]]

    The 2 negative impacts on energy efficiency include:
    1. Addendum p--Expanded lighting power exceptions allowed for use 
with the visually impaired; and
    2. Addendum av--Allowance for louvered overhangs.
    The 11 positive impacts on energy efficiency include:
    1. Addendum c--Increased requirement for building vestibules;
    2. Addendum h--Removal of data processing centers from exceptions 
to HVAC requirements;
    3. Addendum q--Removal of hotel room exceptions to HVAC 
requirements;
    4. Addendum v--Modification of demand controlled ventilation 
requirements;
    5. Addendum ac--Modification of fan power limitations;
    6. Addendum ai--Modification of retail display lighting 
requirements;
    7. Addendum ak--Modification of cooling tower testing requirements;
    8. Addendum an--Modification of commercial boiler requirements;
    9. Addendum ar--Modification of part load fan requirements;
    10. Addendum as--Modification of opaque envelope requirements; and
    11. Addendum at--Modification of fenestration envelope 
requirements.
    The results of the textual analysis are shown in Table 1. Overall, 
the potential positive impacts outweigh the potential negative impacts 
in a simple numerical comparison.

                        Table 1--Results of Textual Analysis by Section of Standard 90.1
----------------------------------------------------------------------------------------------------------------
                                                     Number of                                       Number of
                                     Number of       positive        Number of       Number of       negative
       Section of standard         changes made       (energy     unquantifiable    neutral (no       (energy
                                    to section        saving)         changes     energy saving)    increasing)
                                                      changes                         changes         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                        11               3               0               7               1
 Appendices.....................
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                7               0               0               7               0
 G Performance Rating Method....
Normative and Informative                      4               0               0               4               0
 References.....................
                                 -------------------------------------------------------------------------------
    Overall.....................              44              11               1              30               2
----------------------------------------------------------------------------------------------------------------

B. Quantitative Analysis

1. Discussion of Whole Building Energy Analysis
    The quantitative comparison of ASHRAE Standard 90.1-2007 was 
carried out using whole-building energy simulations of buildings built 
to both ASHRAE Standard 90.1-2004 and ASHRAE Standard 90.1-2007. DOE 
used the EnergyPlus whole building simulation tool to simulate 15 
representative building types in 15 U.S. climate locations, each 
climate location selected to be representative of one of the 15 U.S 
climate zones used in the definition of building energy code criteria 
in ASHRAE Standard 90.1-2004 and Standard 90.1-2007. The simulations 
were developed using specific building prototypes based on the DOE 
commercial reference building models developed for DOE's Net-Zero 
Energy Commercial Building Initiative.
    For each building prototype simulated in each climate the energy 
use intensities (EUI) by fuel type and by end-use were extracted. These 
EUIs by fuel type for each building were then weighted to national 
average EUI figures using weighting factors based on the relative 
square footage of construction represented by that prototype in each of 
the 15 climate regions. These weighting factors were based on 
commercial building construction starts data for a five-year period 
from 2003 to 2007. The source of data was the McGraw-Hill Construction 
Projects Starts Database (MHC). The MHC database captures over 90% of 
new commercial construction in any given year and the collection 
process is independently monitored to ensure the coverage of most of 
the commercial construction in the U.S. The data is used by other 
federal agencies such as the U.S. Census Bureau, the Federal Reserve 
and the U.S. Department of Health and Human Services (HHS) for 
characterizing building construction in the U.S. For the purpose of 
developing construction weighting factors, the strength of this data 
lies in the number of samples, the characterization of each sample in 
terms of building end-use and size and number of stories, the frequency 
of data collection, and the detailed location data. In addition, the 
MHC database can be used to identify multifamily residential buildings 
that would be covered under ASHRAE Standard 90.1.
    DOE's prototypes reflect the use of two fuel types, electricity and 
natural gas. Using the weighting factors, DOE was able to establish an 
estimate of the relative reduction in building energy use, as 
determined by a calculated reduction in weighted average site EUI for 
each building prototype. Site energy refers to the energy consumed at 
the building site. In a corresponding fashion, DOE was also able to 
calculate a reduction in terms of weighted average primary EUI and in 
terms of weighted average energy cost intensity (ECI) in $/sq. ft. of 
building floorspace. Primary energy as used here refers to the energy 
required to generate and deliver energy to the site. To estimate 
primary energy, all electrical energy use intensities were first 
converted to primary energy using a factor of 10,918 Btus primary 
energy per kWh (based on the 2010 estimated values reported in Table 2 
of the EIA Annual Energy Outlook, release date December 2009, available 
at http://www.eia.doe.gov/oiaf/archive/aeo10/aeoref_tab.html). The 
conversion factor of 10,918 was calculated from Table 2 by summing the 
commercial electricity value of 4.62 quads with the electricity losses 
value of 10.17 quads and then dividing that sum by the commercial 
value. ((4.62 + 10.17)/4.62 = 3.2) This yields an electricity ratio of 
3.2 for converting how much primary (source) electricity is required 
per unit of site required electricity. This ratio of 3.2 is then 
multiplied by 3,412 Btu per kWh, producing a value of 10,918 Btus 
primary energy per kWh of site energy.

[[Page 43292]]

Natural Gas EUIs in the prototypes were converted to primary energy 
using a factor of 1.090 Btus primary energy per Btu of site natural gas 
use (based on the 2010 national energy use estimated shown in Table 2 
of the AEO 2010). This natural gas source energy conversion factor was 
calculated by dividing the natural gas subtotal of 23.15 quads (sum of 
all natural gas usage, including usage for natural gas field 
production, leases, plant fuel, and pipeline (compression) supply) by 
the delivered natural gas total of 21.23 quads (sum of four primary 
energy sectors (residential, commercial, industrial, and 
transportation).
a. Calculation of Energy Cost Index
    To estimate the reduction in energy cost index, DOE relied on 
national average commercial building energy prices of $0.1027/kWh of 
electricity and $10.06 per 1000 cubic feet ($0.9796/therm) of natural 
gas, based on EIA statistics for 2010 (the last complete year of data 
available in Table 5.3 Average Retail Price of Electricity to Ultimate 
Consumers: Total by End-Use Sector for the commercial sector--available 
from EIA at http://www.eia.doe.gov/cneaf/electricity/epm/table5_3.html 
and for 2009 (the last complete year of data available from the EIA 
Natural Gas Annual Summary for the commercial sector available at 
http://tonto.eia.doe.gov/dnav/ng/ng_pri_sum_dcu_nus_a.htm.) DOE 
recognizes that actual fuel costs will vary somewhat by building type 
within a region, and will in fact vary more across regions. 
Nevertheless, DOE believes that the use of simple national average 
figures illustrates whether there will be energy cost savings 
sufficient for the purposes of the DOE determination.
b. Calculation of Energy Use Intensities
    Energy use intensities developed for each representative building 
type were weighted by total national square footage of each 
representative building type to provide an estimate of the difference 
between the national energy use in buildings constructed to both 
editions of the Standard 90.1. Note that the 15 buildings types used in 
the determination reflect approximately 80% of the total square footage 
of commercial construction including multi-family buildings greater 
than three stories covered under ASHRAE Standard 90.1.
    Note that only differences between new building requirements were 
considered in this quantitative analysis. Changes to requirements in 
the 2007 edition that pertain to existing buildings only are addressed 
in the detailed textual analysis only.
c. Application to Additions and Renovations
    Both the 2007 and 2004 editions address additions and renovations 
to existing buildings. Since DOE has found insufficient data to 
characterize renovations in terms of what energy using features are 
utilized, DOE has not determined that the results obtained from the 
whole building prototypes used would reasonably reflect the EUI 
benefits that would accrue to renovated floor space. For this reason, 
renovated floor space is not included in the DOE weighting factors. 
Building additions on the other hand are believed to be substantially 
equivalent to new construction. For this reason, FW Dodge construction 
data on additions has been incorporated into the overall weighting 
factors. Floor space additions reflect approximately 13 percent of new 
construction floor space based on data captured in the FW Dodge 
dataset.
d. Ventilation Rate Assumptions
    The quantitative analysis assumed the same base ventilation level 
for buildings constructed to Standard 90.1-2004 and Standard 90.1-2007. 
Neither edition of Standard 90.1 specifies ventilation rates for 
commercial building construction. ASHRAE has a separate ventilation 
standard for commercial construction, ASHRAE Standard 62.1 Ventilation 
for Acceptable Indoor Air Quality. This standard is cited only in a few 
exceptions within the mechanical sections of either ASHRAE 90.1-2004 or 
ASHRAE 90.1-2007, with each edition referencing a different version of 
standard 62.1. ASHRAE 90.1-2004 lists ASHRAE 62.1-1999 in its table of 
references. ASHRAE 90.1-2007 lists ASHRAE 62.1-2004 in its table of 
references. The latest version of ASHRAE Standard 62 is Standard 62.1-
2007.
    Ventilation rates can have significant impact on the energy use of 
commercial buildings. States and local jurisdictions typically specify 
the ventilation requirements for buildings within their respective 
building codes and can set these requirements independent of the energy 
code requirements. Because of the limited reference to ventilation 
within either the 2004 or the 2007 edition of ASHRAE 90.1, the 
requirements that States certify that their energy codes meet or exceed 
the 2007 edition of ASHRAE 90.1 would in general not require 
modification of State ventilation code requirements. However, in many 
cases, ventilation requirements can be traced back to requirements 
found in one or another version of ASHRAE Standard 62.1. For the 
purpose of the quantitative analysis, DOE assumed ventilation rate for 
the simulation prototypes based on the requirements ASHRAE 62.1-2004. 
DOE also performed a sensitivity analysis which calculated the 
quantitative impacts assuming a ventilation rate based on ASHRAE 
Standard 62.1-1999.
2. Results of Whole Building Energy Analysis
    The quantitative analysis of the energy consumption of buildings 
built to Standard 90.1-2007, as compared with buildings built to 
Standard 90.1-2004, indicates national primary energy savings of 
approximately 3.9 percent of commercial building energy consumption 
based on the weighting factors for the 15 buildings simulated. Site 
energy savings are estimated to be approximately 4.6 percent. Using 
national average fuel prices for electricity and natural gas DOE 
estimated a reduction in energy expenditures of 3.9 percent would 
result from the use of ASHRAE Standard 90.1-2007 as compared to ASHRAE 
Standard 90.1-2004. As identified previously, these estimated savings 
figures do not include energy savings from equipment or appliance 
standards that would be in place due to Federal requirements regardless 
of their presence in the ASHRAE Standard 90.1-2007.
    Tables 2 and 3 show the aggregated energy use and associated energy 
savings by building type for the 15 building prototypes analyzed and on 
an aggregated national basis for the 2004 and 2007 editions, 
respectively. For each edition of Standard 90.1, the national building 
floor area weight used to calculate the national impact on building EUI 
or building ECI, is presented. The national average electricity and gas 
building energy use intensity is presented separately for each building 
prototype analyzed, electricity being the predominant energy usage in 
all prototypes. National-average site energy use intensities range from 
over five hundred Btu per square foot annually for the Fast Food 
prototype to approximately 28 Btu per square foot annually for the Non-
refrigerated Warehouse type. Source energy use intensities and building 
energy cost intensities ($/sf-yr) are also presented. Further details 
on the quantitative analysis can be found in the full quantitative 
analysis report available at http://www.energycodes.gov/implement/determinations_90.1-2007.stm.

[[Page 43293]]

                                         Table 2--Estimated Energy Use Intensity by Building Type--2004 Edition
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Whole building EUI data for building population kBtu/ft2-yr
                                                                     Building type ---------------------------------------------------------------------
             Building type                   Building prototype        floor area                                                           ECI  $/ft\2\-
                                                                        weight %    Electric EUI     Gas EUI      Site EUI     Source EUI        yr
--------------------------------------------------------------------------------------------------------------------------------------------------------
Office.................................  Small Office..............           6.16          35.6           3.6          39.2         117.8         $1.11
                                         Medium Office.............           6.64          42.1           4.2          46.3         139.2          1.31
                                         Large Office..............           3.65          34.4           5.7          40.1         116.2          1.09
Retail.................................  Stand-Alone Retail........          16.76          56.1          15.0          71.1         195.7          1.84
                                         Strip Mall................           6.23          55.2          20.1          75.2         198.3          1.86
Education..............................  Primary School............           5.49          47.9          23.5          71.4         178.9          1.68
                                         Secondary School..........          11.38          43.7          19.5          63.1         160.9          1.51
Healthcare.............................  Outpatient Health Care....           4.80         106.7          54.7         161.4         400.8          3.76
                                         Hospital..................           3.79          96.3          57.6         153.9         370.9          3.48
Lodging................................  Small Hotel...............           1.89          48.3          26.1          74.3         182.8          1.71
                                         Large Hotel...............           5.44          68.5          84.4         152.9         311.0          2.91
Warehouse..............................  Non-Refrigerated Warehouse          18.36          14.5          10.7          25.2          58.1          0.54
Food Service...........................  Fast-Food Restaurant......           0.64         226.5         326.1         552.6        1080.0         10.10
                                         Sit-Down Restaurant.......           0.72         179.3         202.1         381.4         794.0          7.43
Apartment..............................  Mid-Rise Apartment........           8.04          32.5          10.1          42.7         115.1          1.08
National...............................  ..........................         100             48.1          24.2          72.3         180.3          1.69
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                         Table 3--Estimated Energy Use Intensity by Building Type--2007 Edition
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Whole building EUI data for building population kBtu/ft2-yr
                                                                     Building type ---------------------------------------------------------------------
             Building type                   Building prototype        floor area                                                           ECI  $/ft\2\-
                                                                        weight %    Electric EUI     Gas EUI      Site EUI     Source EUI        yr
--------------------------------------------------------------------------------------------------------------------------------------------------------
Office.................................  Small Office..............           6.16          35.3           3.3          38.6         116.6         $1.10
                                         Medium Office.............           6.64          40.2           4.3          44.5         133.2          1.25
                                         Large Office..............           3.65          34.3           4.6          38.9         114.7          1.08
Retail.................................  Stand-Alone Retail........          16.76          51.4          13.3          64.7         178.9          1.68
                                         Strip Mall................           6.23          52.3          16.9          69.2         185.8          1.74
Education..............................  Primary School............           5.49          46.7          19.9          66.6         171.1          1.61
                                         Secondary School..........          11.38          42.5          16.6          59.1         154.2          1.45
Healthcare.............................  Outpatient Health Care....           4.80         102.1          52.8         154.9         384.3          3.60
                                         Hospital..................           3.79          95.8          56.2         152.0         367.7          3.45
Lodging................................  Small Hotel...............           1.89          46.5          24.7          71.2         175.7          1.65
                                         Large Hotel...............           5.44          69.1          79.1         148.2         307.3          2.88
Warehouse..............................  Non-Refrigerated Warehouse          18.36          14.5          10.6          25.2          58.0          0.54
Food Service...........................  Fast-Food Restaurant......           0.64         222.1         319.5         541.6        1058.7          9.90
                                         Sit-Down Restaurant.......           0.72         177.5         200.0         377.6         785.9          7.35
Apartment..............................  Mid-Rise Apartment........           8.04          31.8           9.0          40.8         111.7          1.05
National...............................  ..........................         100             46.5          22.5          69.0         173.3          1.63
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 4 presents the estimated percent energy savings (based on 
change in EUI) between the 2004 and 2007 editions. Overall, considering 
those differences that can be reasonably quantified, the 2007 edition 
is expected to increase the energy efficiency of commercial buildings. 
Numbers in Table 5 represent percent energy savings; thus, negative 
numbers represent increased energy use. There is a decrease in gas EUI 
for all building types except medium office. This decrease in gas EUI 
represents the majority of the national site energy savings from the 
2007 edition. There is a decrease in electrical EUI for all building 
prototypes except for large hotel.

                                      Table 4--Estimated Percent Energy Savings With 2007 Edition--by Building Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Building type       Percent savings in whole building energy use intensity (%)
             Building type                   Building prototype        floor area  ---------------------------------------------------------------------
                                                                       weight  %    Electric EUI     Gas EUI      Site EUI     Source EUI        ECI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Office.................................  Small Office..............           6.16           0.8           9.0           1.5           1.0           1.0
                                         Medium Office.............           6.64           4.6          -2.3           3.9           4.3           4.4
                                         Large Office..............           3.65           0.3          18.0           2.8           1.3           1.3
Retail.................................  Stand-Alone Retail........          16.76           8.3          11.2           9.0           8.6           8.6
                                         Strip Mall................           6.23           5.2          15.6           8.0           6.3           6.3
Education..............................  Primary School............           5.49           2.5          15.4           6.8           4.4           4.3
                                         Secondary School..........          11.38           2.6          14.8           6.3           4.2           4.2
Healthcare.............................  Outpatient Health Care....           4.80           4.2           3.4           4.0           4.1           4.1
                                         Hospital..................           3.79           0.6           2.3           1.2           0.9           0.9

[[Page 43294]]

 
Lodging................................  Small Hotel...............           1.89           3.6           5.2           4.2           3.9           3.9
                                         Large Hotel...............           5.44          -1.0           6.3           3.0           1.2           1.2
Warehouse..............................  Non-Refrigerated Warehouse          18.36           0.0           0.7           0.3           0.2           0.2
Food Service...........................  Fast Food Restaurant......           0.64           1.9           2.0           2.0           2.0           2.0
                                         Sit-Down Restaurant.......           0.72           1.0           1.0           1.0           1.0           1.0
Apartment..............................  Mid-Rise Apartment........           8.04           2.1          11.5           4.3           3.0           3.0
National...............................  ..........................         100              3.4           6.9           4.6           3.9           3.9
--------------------------------------------------------------------------------------------------------------------------------------------------------

C. Final Determination Statement

    DOE qualitative analysis shows that the changes in textual 
requirements and stringencies are ``positive,'' in the sense that they 
would improve energy efficiency in commercial construction.
    DOE's quantitative analysis shows that for the 15 prototype 
buildings, a weighted average national improvement in new building 
efficiency of 3.7 percent, when considering source energy, and by 4.4 
percent, when considering site energy.
    As both the 2004 and 2007 editions cover existing buildings, to the 
extent that these standards are applied to existing buildings in 
retrofits or in new construction addition, the 2007 edition should also 
improve the efficiency of the existing building stock.
    DOE has, therefore, concluded that Standard 90.1-2007 receive an 
affirmative determination under Section 304(b) of the ECPA.

III. Filing Certification Statements With DOE

A. Review and Update

    Upon publication of this affirmative final determination, each 
State is required to review and update, as necessary, the provisions of 
its commercial building energy code to meet or exceed the provisions of 
the 2007 edition of Standard 90.1. (42 U.S.C. 6833(b)(2)(B)(i)) This 
action is required to be taken not later than two years from the date 
of publication of this notice of final determination, unless an 
extension is provided.
    The DOE recognizes that some States do not have a State commercial 
building energy code or have a State code that does not apply to all 
commercial buildings. If local building energy codes regulate 
commercial building design and construction rather than a State code, 
the State must review and make all reasonable efforts to update as 
authorized those local codes to determine whether they meet or exceed 
the 2007 edition of Standard 90.1. States may base their certifications 
on reasonable actions by units of general purpose local government. 
Each such State must still review the information obtained from the 
local governments and gather any additional data and testimony for its 
own certification.
    Note that the applicability of any State revisions to new or 
existing buildings would be governed by the State building codes. 
However, it is our understanding that generally, the revisions would 
not apply to existing buildings unless they are undergoing a change 
that requires a building permit.
    States should be aware that the DOE considers high-rise (greater 
than three stories) multi-family residential buildings, hotel, motel, 
and other transient residential building types of any height as 
commercial buildings for energy code purposes. Consequently, commercial 
buildings, for the purposes of certification, would include high-rise 
(greater than three stories) multi-family residential buildings, hotel, 
motel, and other transient residential building types of any height.

B. Certification

    Section 304(b) of ECPA, as amended, requires each State to certify 
to the Secretary of Energy that it has reviewed and updated the 
provisions of its commercial building energy code regarding energy 
efficiency to meet or exceed the Standard 90.1-2007 edition. (42 U.S.C. 
6833 (b)) The certification must include a demonstration that the 
provisions of the State's commercial building energy code regarding 
energy efficiency meet or exceed Standard 90.1-2007. If a State intends 
to certify that its commercial building energy code already meets or 
exceeds the requirements of Standard 90.1-2007, the State should 
provide an explanation of the basis for this certification, e.g., 
Standard 90.1-2007 is incorporated by reference in the State's building 
code regulations. The chief executive of the State (e.g., the Governor) 
or a designated State official, such as the Director of the State 
energy office, State code commission, utility commission, or equivalent 
State agency having primary responsibility for commercial building 
energy codes, would provide the certification to the Secretary. Such a 
designated State official would also provide the certifications 
regarding the codes of units of general purpose local government based 
on information provided by responsible local officials.
    ECPA also requires the Secretary to permit extensions of the 
deadlines for the State certification if a State can demonstrate that 
it has made a good faith effort to comply with the requirements of 
Section 304 of ECPA and that it has made significant progress in doing 
so. (42 U.S.C. 6833(c))
    DOE does list the States that have filed certifications and those 
that have or have not adopted new codes on the DOE Energy Efficiency 
and Renewable Energy Web site at http://www.energycodes.gov/states/. 
The letters can also be found on each State's Web site under Recovery 
Act activity. Under Section 304(d) and (3) of ECPA, once a State has 
adopted a new commercial code, DOE typically provides software, 
training, and support for the new code as long as the new code is based 
on the national model codes (in this case, ASHRAE Standard 90.1).
    Some States develop their own codes that are only loosely related 
to the national model codes and DOE does not typically provide 
technical support for those codes. However, DOE does provide grants to 
these States through grant programs administered by the National Energy 
Technology Laboratory (NETL). DOE does not prescribe how each State 
adopts and enforces its energy codes.
    It should be noted that the 2010 edition of Standard 90.1 has been 
published by ASHRAE, and DOE has prepared a preliminary determination 
on which comments will be taken. Were DOE to make a positive 
determination on the 2010 edition, the 2010 edition would supersede the 
2007 edition. If the 2010 edition of the Standard 90.1 is finalized 
before the 2 year deadline to

[[Page 43295]]

file a certification for the 2007 positive determination then a state 
may file just one certification to address both determinations.

C. Request for Extensions To Certify

    Section 304(c) of ECPA requires that the Secretary permit an 
extension of the deadline for complying with the certification 
requirements described above, if a State can demonstrate that it has 
made a good faith effort to comply with such requirements and that it 
has made significant progress toward meeting its certification 
obligations. (42 U.S.C. 6833(c)) Such demonstrations could include one 
or both of the following: (1) A plan for response to the requirements 
stated in section 304; and/or (2) a statement that the State has 
appropriated or requested funds (within State funding procedures) to 
implement a plan that would respond to the requirements of Section 304 
of ECPA. This list is not exhaustive.

IV. Regulatory Analysis

A. Review Under Executive Order 12866

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

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' (67 FR 53461 (Aug. 16, 2002)), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site: http://www.gc.doe.gov.
    DOE has reviewed today's final determination under the provisions 
of the Regulatory Flexibility Act and the procedures and policies 
published on February 19, 2003. Today's final determination of improved 
energy efficiency between the ASHRAE 2004 and 2007 of Standard 90.1 
requires States to undertake an analysis of their respective building 
codes and to update codes, if necessary. As such, the only entities 
directly regulated by this final determination would be States. DOE 
does not believe that there will be any direct impacts on small 
entities such as small businesses, small organizations, or small 
governmental jurisdictions.
    On the basis of the foregoing, DOE certifies that this final 
determination would not have a significant economic impact on a 
substantial number of small entities. Accordingly, DOE has not prepared 
a regulatory flexibility analysis for this final determination. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

C. Review Under the National Environmental Policy Act of 1969

    DOE has determined that today's action is covered under the 
Categorical Exclusion found in DOE's National Environmental Policy Act 
regulations at paragraph A.6. of Appendix A to subpart D, 10 CFR Part 
1021. That Categorical Exclusion applies to actions that are strictly 
procedural, such as rulemaking establishing the administration of 
grants. Today's action is required by Title III of ECPA, as amended, 
which provides that whenever the Standard 90.1-1989, or any successor 
to that code, is revised, the Secretary must make a determination, not 
later than 12 months after such revision, whether the revised code 
would improve energy efficiency in commercial buildings and must 
publish notice of such determination in the Federal Register. (42 
U.S.C. 6833(b)(2)(A)) If the Secretary determines that the revision of 
Standard 90.1-1989 or any successor thereof, improves the level of 
energy efficiency in commercial buildings then no later than two years 
after the date of the publication of such affirmative determination, 
ECPA requires each State to certify that it has reviewed and updated 
the provisions of its commercial building code regarding energy 
efficiency with respect to the revised or successor code. (42 U.S.C. 
6833(b)(2)(B)(i)) If the Secretary makes a determination that the 
revised standard will not improve energy efficiency in commercial 
buildings then State commercial codes shall meet or exceed the last 
revised standard for which the Secretary has made a positive 
determination. (42 U.S.C. 6833(b)(2)(B)(ii)) Therefore, DOE has 
determined that the Secretary's determination is not a major federal 
action that would have direct environmental impacts. Accordingly, DOE 
has not prepared an environmental assessment or an environmental impact 
statement.

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

    Executive Order 13132, 64 FR 43255 (Aug. 4, 1999), imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that pre-empt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions.
    DOE has reviewed the statutory authority. Congress found that:
    (1) Large amounts of fuel and energy are consumed unnecessarily 
each year in heating, cooling, ventilating, and providing domestic hot 
water for newly constructed residential and commercial buildings 
because such buildings lack adequate energy conservation features;
    (2) Federal voluntary performance standards for newly constructed 
buildings can prevent such waste of energy, which the Nation can no 
longer afford in view of its current and anticipated energy shortage;
    (3) The failure to provide adequate energy conservation measures in 
newly constructed buildings increases long-term 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))

[[Page 43296]]

    Executive Order 13132, 64 FR 43255 (Aug. 4, 1999) requires 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications 
unless ``funds necessary to pay the direct costs incurred by the State 
and local governments in complying with the regulation are provided by 
the Federal Government.'' (62 FR 43257) Pursuant to Section 304(e) of 
ECPA, the Secretary is required to ``provide incentive funding to 
States to implement the requirements of [Section 304], and to improve 
and implement State residential and commercial building energy 
efficiency codes, including increasing and verifying compliance with 
such codes. In determining whether, and in what amount, to provide 
incentive funding under this subsection, the Secretary shall consider 
the actions proposed by the State to implement the requirements of this 
section, to improve and implement residential and commercial building 
energy efficiency codes, and to promote building energy efficiency 
through the use of such codes.'' (42 U.S.C. 6833(e)) Therefore, 
consultation with States and local officials regarding this 
determination was not required.
    However, DOE notes that State and local governments were invited to 
participate in the development Standard 90.1-2007. Standard 90.1-2007, 
was developed in a national American National Standards Institute 
consensus process open to the public and in which State and local 
governments participate along with DOE and other interested parties. It 
is the product of a series of amendments to the prior addition of the 
standard. Each addendum is put out for national public review. Anyone 
may submit comments, and in the process comments were received from 
State and local governments. Comments on the addendum are received, 
reviewed and resolved through a consensus process. Members of the 
standards project committee have included representatives of State and 
local governments.
    DOE annually holds a national building energy codes workshop at 
which the progress on development of the model energy codes are 
presented, along with discussion and sharing of problems and successes 
in adoption, implementation, and enforcement of building energy codes. 
The predominate attendance of these workshops are State and local 
officials responsible for building energy codes. They are consistently 
encouraged and urged to participate in the model building energy code 
processes, which will be the subject of DOE's next determinations under 
section 304 of ECPA. Thus, State and local officials have had the 
opportunity to participate in the development of the standard through 
the ASHRAE process. Some have done so.
    Similarly, the comments of States and local governments about 
provisions of the developing Standard 90.1-2007 were received in formal 
comment periods and heard and addressed in ASHRAE committee 
deliberations open to the public. In addition, concerns and issues 
about adoption, implementation and enforcement issues were presented 
and discussed at informal sessions at the Department's annual national 
workshops on building energy codes. DOE believes that the above process 
has given State and local jurisdictions extensive opportunity to 
comment on and express their concerns on Standard 90.1-2007, the 
subject of this determination.
    On issuance of this determination that Standard 90.1-2007 would 
improve the energy efficiency of commercial buildings, ECPA requires 
the States to certify to the Secretary that it has reviewed and updated 
the provisions of its commercial building code regarding energy 
efficiency to meet or exceed the requirements of Standard 90.1-2007. 
DOE notes that ECPA sets forth this requirement for States. (42 U.S.C. 
6833(b)(2)(B)(i)) States are given broad freedom to either adopt 
Standard 90.1-2007 or develop their own code that meets equivalent 
energy efficiency.

E. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Subsection 101(5) of 
Title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more. Section 204 of that title requires 
each agency that proposes a rule containing a significant Federal 
intergovernmental mandate to develop an effective process for obtaining 
meaningful and timely input from elected officers of State, local, and 
tribal governments.
    Today's action requires each State under Section 304 of ECPA to 
review and update, as necessary, the provisions of its commercial 
building energy code to meet or exceed the provisions of the 2007 
edition of Standard 90.1. (42 U.S.C. 6833(b)(2)(B)(i)) The statutory 
requirements of ECPA require DOE to provide a determination 
irrespective of costs. While the processes that States may undertake to 
update their codes vary widely, as a general rule a State at a minimum 
would need to:
     Evaluate Standard 90.1-2007 using the background material 
provided by DOE.
     Compare the existing State commercial building energy code 
to Standard 90.1-2007 to see if an update is needed.
     Update the State commercial building energy code to meet 
or exceed Standard 90.1-2007.
    DOE evaluated the potential for State activity to exceed $100 
million in any one year. The approach looked at the three steps for 
minimum activity listed in the previous paragraph--evaluate, compare 
and update. A fourth potential step of providing training on the new 
code was also considered as some States may consider training on the 
new code to be an integral part of adopting the new code. For the three 
steps of minimum activity, DOE estimated the following:
    Evaluate Standard 90.1-2007--DOE estimated a minimum of 8 hours of 
review per State and a maximum review time of 500 hours of review per 
State (12.5 work weeks). The minimum review time of 8 hours (one day) 
is the estimated minimum amount of time can see States taking to review 
Standard 90.1-2007. Simply reading and reviewing the Federal Register 
notice, the qualitative analysis document and the quantitative analysis 
document will take the average person several hours. Deciding on 
whether or not to upgrade to Standard 90.1-2007 may take another couple 
of hours. The maximum review time of 500 hours (62.5 day, 3 working 
months) upper limit was estimated as the amount of time that a state 
that was not familiar with energy codes at all or which has a 
particularly arduous review process within the state would take to 
review these documents.
    (1) A cost per hour of $100 per hour was assumed based on actual 
rates

[[Page 43297]]

proposed in subcontracts associated with compliance studies funded by 
DOE. The average rate calculated from these subcontracts for 10 types 
of building officials from 6 States was $93.41, so DOE chose to round 
this up to $100 per hour.
    a. Low estimate--8 hours * 50 States * $100 per hour = $40,000.
    b. High estimate--500 hours * 50 States * $100 per hour = 
$2,500,000.
    (2) Compare Standard 90.1-2007 to existing state code--Assuming the 
State is familiar with its code and has performed an effective 
evaluation of Standard 90.1 in the first step, the range of potential 
costs should be similar to Step 1. (See Step 1 for discussion of 8 hour 
and 500 hour times and $100 per hour cost estimate).
    a. Low estimate--8 hours * 50 States * $100 per hour = $40,000.
    b. High estimate--500 hours * 50 States * $100 per hour = 
$2,500,000.
    (3) Update the State Codes to meet or exceed Standard 90.1-2007--
Adopting a new energy code could be as simple as updating an order 
within the State, or it could be very complex involving hearings, 
testimony, etc. Again, the range of potential costs should be similar 
to Step 1. (See Step 1 for discussion of origin of 8 hour and 500 hour 
times and $100 per hour cost estimate).
    a. Low estimate--8 hours * 50 States * $100 per hour = $40,000.
    b. High estimate--500 hours * 50 States * $100 per hour = 
$2,500,000.
    The potential range of total costs to States to under these 
assumptions would be $120,000 to $7.5 million. This range is well below 
the $100 million threshold in the Unfunded Mandates Act. DOE has also 
considered potential costs were States to include providing training on 
the new code.
    (4) Train Code officials on New Code--Assuming every jurisdiction 
has at least one person that needs to be trained on energy code. There 
are roughly 40,000 general purpose local governments, or jurisdictions, 
in the U.S. The total number of jurisdictions in the U.S. that enforce 
energy codes is not known with any degree of certainty. The National 
League of Cities publishes an estimate of the number of local 
governments in the U.S. at http://www.nlc.org/about_cities/cities_101/142.aspx. Their summary indicates the following:
     19,429 Municipal governments;
     16,504 Town or Township governments;
     3,034 County governments;
     13,506 School districts; and
     35,052 Special district governments.
    DOE believes it is reasonable to assume that all of the municipal 
governments, town or township governments, and county governments could 
be required to acquire training on Standard 90.1-2007 in order to 
enforce this standard as an adopted energy code. In addition, the 50 
state governments would be required to acquire training. This number 
adds up to 19,429+16,504+3,034+50 = 38,667. Another widely mentioned 
estimate of the total number of code adopting jurisdictions in the U.S. 
is 44,000. This number is based on the National Conference of States on 
Building Codes and Standards (NCBCS). See, for example, http://www.ncsbcs.org/newsite/New%20Releases/RW_Presentation_060602.htm. 
Both these estimates are in reasonable agreement and so DOE assumed 
that there are 40,000 potential jurisdictions that potentially would 
need training on a new energy code. This number is likely to be on the 
extreme high end of possible values. DOE believes there are 
approximately 38,000 to 44,000 jurisdictions that could adopt energy 
codes. Many of those jurisdictions do not adopt energy codes and many 
of those jurisdictions have already adopted Standard 90.1-2007 or the 
2009 IECC as evidenced by the BECP maps that show 14 States have 
already adopted 90.1-2007 or the equivalent. DOE believes that 40,000 
is very much on the high side of the estimate for jurisdictions that 
may need training on Standard 90.1-2007, but in the absence of a lower 
defensible value, DOE has chosen to use this higher conservative 
number.
    Based on training experiences of the Building Energy Codes Program 
staff, with conducting training sessions for jurisdictional staff 
regarding Standard 90.1, one full-day (8 hours) of training is normally 
sufficient. Therefore we have used 8 hours as a low estimate and 16 
hours as a high estimate for training hours required if a jurisdiction 
were to adopt Standard 90.1-2007.
    a. Low estimate--8 hours * 40,000 jurisdictions * $100 per hour = 
$32,000,000.
    b. High Estimate--16 hours * 40,000 jurisdictions * $100 per hour = 
$64,000,000.
    Adding the potential training costs of $32 million to $64 million 
to the costs for the 3 steps indicates a potential total costs ranging 
from $32.12 million to $71.5 million. The high end of this estimate is 
less than the $100 million threshold in the Unfunded Mandates Act. 
Accordingly, no further action is required under the Unfunded Mandates 
Reform Act of 1995.

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

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

G. Review Under the Treasury and General Government Appropriations Act 
of 2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed today's action under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

H. Review Under Executive Order 13211

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

[[Page 43298]]

therefore not a significant energy action. Accordingly, DOE has not 
prepared a Statement of Energy Effects.

I. Review Under Executive Order 13175

    Executive Order 13175. ``Consultation and Coordination with Indian 
tribal Governments'' (65 FR 67249 (Nov. 9, 2000)), requires DOE to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' 
refers to regulations that have ``substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.'' Today's regulatory 
action is not a policy that has ``tribal implications'' under Executive 
Order 13175. DOE has reviewed today's action under Executive Order 
13175 and has determined that it is consistent with applicable policies 
of that Executive Order.

    Issued in Washington, DC, on July 13, 2011.
 Kathleen Hogan,
Deputy Assistant Secretary for Energy Efficiency, Office of Technology 
Development, Energy Efficiency and Renewable Energy.
[FR Doc. 2011-18251 Filed 7-19-11; 8:45 am]
BILLING CODE 6450-01-P
```