[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Notices]
[Pages 79868-79874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30975]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Docket No. EERE-2006-BC-0132]


Building Energy Standards Program: Determination Regarding Energy 
Efficiency Improvements in the Energy Standard for Buildings, Except 
Low-Rise Residential Buildings, ANSI/ASHRAE/IESNA Standard 90.1-2004

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

ACTION: Notice of determination.

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SUMMARY: The Department of Energy (DOE) today determines that the 2004 
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 90.1-2004, (Standard 90.1-2004) would achieve greater 
energy efficiency in buildings subject to the code, than the 1999 
edition (Standard 90.1-1999 or the 1999 edition). The quantitative 
analysis of the energy consumption of buildings built to Standard 90.1-
2004, as compared with buildings built to Standard 90.1-1999, indicates 
national source energy savings of approximately 13.9 percent of 
commercial building energy consumption. Site energy savings are 
estimated to be approximately 11.9 percent. As a result of this 
positive determination regarding Standard 90.1-2004, each State is 
required to certify that it has reviewed the provisions of its 
commercial building code regarding energy efficiency, and updated, as 
necessary, its code to meet or exceed Standard 90.1-2004. This Notice 
provides guidance to States on Certifications, and Requests for 
Extensions of Deadlines for Certification Statements.

DATES: Certifications and Requests for Extensions of Deadlines, with 
regard to Standard 90.1-2004, are due at DOE on or before December 30, 
2010.

ADDRESSES: Certifications or Requests for Extensions of Deadlines 
should be directed to the Assistant Secretary for Energy Efficiency and 
Renewable Energy, Office of Building Technology Assistance, EE-42, 1000 
Independence Avenue, SW., Washington, DC 20585-0121. Envelopes or 
packages should be labeled, ``State Certification of Commercial 
Building Codes Regarding Energy Efficiency''. The Technical

[[Page 79869]]

Support Document for this determination can be accessed at http://www.energycodes.gov/implement/determinations_com.stm.

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.

SUPPLEMENTARY INFORMATION:

I. Introduction
    A. Statutory Requirements
    B. Background
    1. Publication of Standard 90.1-2004
    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. 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. Request for Extensions
    D. Submittals
V. 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.) 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 (in this case, Standard 90.1-2004). (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 July 15, 2002, the Secretary published a 
determination updating the reference code to Standard 90.1-1999. 67 FR 
46464. DOE held a workshop and accepted comments on the methodology for 
making a determination and in the final determination, DOE addressed 
concerns raised as to the methodology relied upon in the determination.
    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))

B. Background

1. Publication of Standard 90.1-2004
    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 2004 edition of Energy 
Standard for Buildings Except Low-rise Residential Buildings, in June 
2004 and July 2004, respectively.
    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 90.1-2004 on August 5, 2004. The 2004 edition was 
published in December 2004.
2. Analysis Methodology
    In arriving at a determination, the Department first reviewed all 
significant changes between the 1999 edition and the 2004 edition of 
Standard 90.1, including those changes made between the 1999 edition 
and the 2001 edition (ANSI/ASHRAE/IESNA Standard 90.1-2001). 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 was not changed from that used for the 1999 edition, with no 
changes to the scope or the way components are defined. The 2004 
edition was reorganized to improve usability and new climate zones were 
utilized in place of the climate bins used in Standard 90.1-1999. We 
concluded that because no significant changes were made to the 
structure, scope, or component definitions of Standard 90.1, the same 
methodology used for the analysis of Standard 90.1-1999 could be 
utilized for the analysis of Standard 90.1-2004. Based on this, DOE 
determined it was unnecessary to hold a public workshop and seek 
comment on the analysis methodology, as was done on for the analysis of 
Standard 90.1-1999.
    DOE did not conduct a formal determination of energy savings on the 
2001 edition. Initial review of the changes made in the 2001 edition 
indicated that while the changes typically improved the usability and 
understandability of the text, the only changes that could 
quantitatively be compared were estimated to result in negative energy 
savings. These changes, primarily to slab edge insulation requirements 
in cool and cold climates, were estimated to have a minor impact in 
terms of energy efficiency in buildings at the national level, but no 
simulation was made to quantify the impact. All changes made between 
the 1999 and 2001 editions are included in this determination for the 
2004 edition.
3. DOE Response to Comments on Previous Analysis
    DOE did not conduct a workshop on the analysis relied upon in this 
determination because DOE relied on the same methodology as in the 
Standard 90.1-1999 determination. DOE previously sought comment on this 
analysis and responded to comments received in the Standard 90.1-1999 
determination. 67 FR 46464. DOE re-reviewed the comments and data 
submitted regarding issues raised in the comparative analysis of 
Standard 90.1-1989 and Standard 90.1-1999. The more significant 
comments are discussed below.

[[Page 79870]]

    We have attempted to keep the comparative analysis of Standard 
90.1-1999 and Standard 90.1-2004 as close as possible to the previous 
analysis comparing Standard 90.1-1989 and Standard 90.1-1999. As 
acknowledged in the previous analysis, we recognize that, given the 
numerous assumptions required to simulate the potential impact of the 
new standard, reasonable minds could differ over both the specific 
model employed and over the assumptions used in those models. We 
recognized previous cautions about the complexity of the problem and 
magnitude of alternative compliance approaches in the standard.
    We recognize that our methodology for the purpose of a simple yes/
no determination is inadequate for determining an absolute 
quantification of energy savings estimates associated with using 
Standard 90.1-2004 and make no such claim for the analysis on which 
this determination relies. DOE did perform a quantitative analysis that 
included many of the changes in Standard 90.1-2004 that can be modeled, 
but this quantitative analysis is not able to accurately quantify all 
the likely effects of the new standard.
    We continue to believe that our comparison 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 and therefore we 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.
    We continue to believe that the analysis of whether the standard 
will improve energy efficiency in commercial buildings should, to the 
extent possible, reflect the changes in the minimum requirements of 
each standard. However, in assessing the impact of those requirements, 
we believe that the fundamental buildings designs considered, including 
construction types, lighting designs, operation, and equipment design 
and usage characteristics should be based on a realistic estimate of 
current construction. We believe that we have done this in our 
analysis.
    As in the previous determination for Standard 90.1-1999, DOE did 
not include analysis of potential changes in equipment market share in 
its analysis. Potentially, different levels of cost increases between 
specific component types serving the same base need within the 
construction market (e.g. masonry wall construction versus frame wall 
construction or space heating boilers versus furnaces) could result in 
market shifts which could impact, in some cases negatively, overall 
energy consumption within commercial buildings. In general, the 
Department does not have the data or the tools to examine the potential 
elasticity between markets and does not believe it is required to do so 
to assess whether a revision to the standard will improve energy 
efficiency in commercial buildings. The Department will consider 
quantitative data regarding the impact of market switching on its 
Determination only if there is sufficient evidence to believe that the 
likely impact of market switches would be a reduction in energy 
efficiency due to the revised standard taken as a whole.
    We have continued to use new construction square footage data 
extracted from the Energy Information Administration's National Energy 
Modeling System, as the basis for our analysis. For this analysis, we 
used data from the years 2006 to 2015.
    Consistent with the previous determination 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 
90.1-2004, 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 it is true that 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. DOE believes that 
Congress could not have intended this result.
    We continue to believe that DOE's responsibility is to determine 
whether or not the new version of Standard 90.1 will improve energy 
efficiency, and not whether the measures are technologically feasible 
and economically justified. 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 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 be considered. 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 which specifically includes language 
concerning economic justification, Section 304 of ECPA omits 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). 
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, it appears that Congress 
assumed that

[[Page 79871]]

these issues would be addressed by stakeholders in the development of 
the standard and through DOE's active participation in the ASHRAE 
process itself. The language of Section 307 of ECPA delineates DOE as 
one participant in the process, however DOE is not the ultimate 
decision maker regarding provisions of revisions to the ASHRAE 
standard.
    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.
    We continue to use a scaling approach to building modeling, as 
opposed to the use of specific buildings. We believe that by using a 
scaling approach, we can assess the impact of building envelope changes 
over a broad range of building sizes. The size selection of the 
prototype used for scaling is near the median square footage for most 
building categories.
    As in the Standards 90.1-1999 determination, the quantitative 
comparison of whole-building lighting requirements is the methodology 
used and we addressed space-by-space requirements and supplemental or 
additional lighting power allowances in our detailed textual analysis. 
This was an issue in the previous comparison of Standard 90.1-1989 and 
Standard 90.1-1999. 64 FR 46473. Standard 90.1-1999 and Standard 90.1-
2004 have virtually identical additional lighting power allowance 
requirements, with the exception that the text of Standard 90.1-2004 
includes clarification that the additional lighting power allowance for 
retail displays is based on the area of the specific display and not on 
the floor area surrounding the display. The difficulty in incorporating 
this into a quantitative analysis is obtaining data on the size of 
display areas. DOE has collected information on display areas with 
dedicated lighting systems from a sample of retail buildings in 
Richland, Kennewick, and Pasco, Washington. The results of this survey 
indicate that there is a wide range of additional lighting power 
allowance that would be considered appropriate under either the 1999 or 
2004 editions, depending on the amount of display area. However, the 
results from this admittedly small survey indicate that the variation 
is correlated highly with the type of retail establishment (convenience 
store, department store, specialty store, etc). DOE does not know of 
any source of data that could be used to provide an overall weighting 
of the retail sector by these specific types and therefore has chosen 
not to include this information in the quantitative analysis.
    We again considered comments to the analysis of the Standard 90.1-
1999 determination that we should use DOE 2.1 as the basis of the 
energy simulations, and we also considered whether or not we should use 
the new EnergyPlus simulation software for this determination. In the 
interests of comparing this analysis with the analysis done previously 
for Standard 90.1-1999, we choose to continue to use the existing BLAST 
software tool. The use of EnergyPlus in this determination was rejected 
for three reasons. First, the previous analysis of Standard 90.1-1999 
had been conducted in BLAST and DOE wished to use as similar a process 
as possible for this analysis. Second, DOE did not have a set of 
building prototypes in EnergyPlus that could have been used for this 
analysis. DOE did develop a set of prototypes, but these were not 
available until November 2008. Third, DOE believes that the use of 
BLAST (and the existing methodology) may facilitate public review of 
this analysis by interested stakeholders.

C. Summary of the Comparative Analysis

    We carried out both a broad quantitative analysis and a detailed 
textual analysis of the differences between the requirements and the 
stringencies in the 1999 and the 2004 editions.
1. Quantitative Analysis
    The quantitative comparison of energy codes was done using whole-
building energy simulations of buildings built to each standard. We 
simulated seven representative building types in 11 representative U.S. 
climates. Note that only differences between requirements applied to 
new buildings were considered in this quantitative analysis. Changes in 
requirements in the 2004 edition that pertain to existing buildings are 
addressed in the detailed textual analysis. The simulations were based 
on a 15 zone building prototype used in previous DOE building research. 
Simulated Energy Use Intensities (EUI) for each zone were scaled to 
reflect variations in building size and shapes for each representative 
building type. 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.\1\
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    \1\ A more detailed explanation is located in the Standard 90.1-
2004 Technical Support Document available at http://www.energycodes.gov/implement/determinations_com.stm.
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    Both the 2004 and 1999 editions address additions and renovations 
to existing buildings. Since DOE found insufficient data to permit us 
to accurately quantify the effects of these aspects of the standards, 
we chose not to address the impacts on existing buildings in this 
analysis.
    The quantitative analysis of the energy consumption of buildings 
built to Standard 90.1-2004, as compared with buildings built to 
Standard 90.1-1999, indicates national source energy savings of 
approximately 13.9 percent of commercial building energy consumption. 
Site energy savings are estimated to be approximately 11.9 percent. 
These figures represent a conservative estimate of energy savings.
    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.
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 90.1-1999 to Standard 90.1-2004. 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 34 
addenda to Standard 90.1-1999 to create Standard 90.1-2001. ASHRAE also 
processed 31 addenda to Standard 90.1-2001 to create Standard 90.1-
2004. All told, 65 addenda were evaluated by DOE in preparing this 
Determination.
    Each standard has multiple ways to demonstrate compliance. We 
compared the prescriptive requirements for each standard as we believe 
that this approach represents the most common approach to using the 
standard in question for most buildings.\2\
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    \2\ A more detailed explanation is located in the Standard 90.1-
2004 Technical Support Document available at http://www.energycodes.gov/implement/determinations_com.stm.
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D. Determination Statement

    The Department's review and evaluation found that there are 
significant differences between the 1999 edition and the 2004 edition. 
Our overall conclusion is that the 2004 edition will improve the energy 
efficiency of commercial buildings. However, we found a number of

[[Page 79872]]

changes in textual requirements and stringencies that will decrease 
energy efficiency. Overall, we concluded the changes in textual 
requirements and stringencies are ``positive,'' in the sense that they 
will improve energy efficiency in commercial construction. Our 
quantitative analysis shows, nationally, new building efficiency should 
improve by almost 13.4 percent, looking at source energy, and by almost 
11.1 percent, when considering site energy. While both the 1999 and 
2004 edition cover existing buildings, the reduction in lighting power 
allowance and the relatively high frequency of lighting retrofits in 
commercial buildings should improve the efficiency of existing building 
stock. DOE has therefore concluded that Standard 90.1-2004 receive an 
affirmative determination under Section 304(b) of the Energy 
Conservation and Production Act.

II. Results of Quantitative Analysis

    Tables 1 and 2 show the aggregated energy use and associated energy 
savings by building type for the seven categories analyzed and on an 
aggregated national basis for the 1999 and 2004 editions, respectively. 
For each edition the building floor area weight, used to calculate the 
building energy or cost use intensity, is presented. The electric and 
gas building energy use intensity is presented for each type analyzed, 
electric being predominate in all types. Site energy use intensities 
ranged from over 125 thousand Btu per square foot annually for the Food 
Service type to approximately 27 thousand Btu per square foot annually 
for the Warehouse type. Source energy use intensities have similar 
ranges but vary in quantitative order from site energy intensities. 
Building energy cost intensities are also presented.

                                          Table 1--Modeled Energy Use Intensity by Building Type--1999 Edition
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                                                           Building type     Whole building EUI data for building population  (kBtu/sf-yr or $/sf-yr)
                      Building type                         floor area   -------------------------------------------------------------------------------
                                                              weight       Electric EUI       Gas EUI        Site EUI       Source EUI          $UI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Assembly................................................           0.061           54.68           27.39           82.08          203.23            1.62
Education...............................................           0.155           31.33           16.85           48.18          117.72            0.96
Food Service............................................           0.035           97.40           28.32          125.72          339.25            2.68
Lodging.................................................           0.091           40.93           11.53           52.46          142.16            1.14
Office..................................................           0.189           42.66            4.89           47.55          140.25            1.11
Retail..................................................           0.277           46.07            3.56           49.63          149.54            1.18
Warehouse...............................................           0.191           18.63            8.65           27.29           68.49            0.56
National................................................  ..............           39.75            9.89           49.64          136.59            1.09
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                                          Table 2--Modeled Energy Use Intensity by Building Type--2004 Edition
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                                                           Building type     Whole building EUI data for building population  (kBtu/sf-yr or $/sf-yr)
                      Building type                         floor area   -------------------------------------------------------------------------------
                                                              weight       Electric EUI       Gas EUI        Site EUI       Source EUI          $UI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Assembly................................................           0.061           47.13           28.18           75.32          180.24            1.45
Education...............................................           0.155           27.12           16.94           44.06          104.52            0.86
Food Service............................................           0.035           89.33           28.99          118.32          314.51            2.49
Lodging.................................................           0.091           31.82           13.33           45.15          115.37            0.93
Office..................................................           0.189           37.49            4.88           42.37          123.90            0.98
Retail..................................................           0.277           38.71            3.57           42.28          126.30            1.00
Warehouse...............................................           0.191           14.30            8.29           22.59           54.40            0.45
National................................................  ..............           33.67           10.07           43.75          117.60            0.94
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 3 presents the estimated percent energy savings between the 
1999 and 2004 editions. Overall, considering those differences that can 
be reasonably quantified, the 2004 edition will increase the energy 
efficiency of commercial buildings. Numbers in Table 3 represent 
percent energy savings, thus negative numbers represent increased 
energy use. There is an increase in gas EUI for all building types 
except warehouse. This is attributable to the decrease in lighting 
power density in all building types, which leads to both an increase in 
cooling energy and an increase in heating energy.

                                      Table 3--Estimated Percent Energy Savings With 1999 Edition--By Building Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Percent savings in whole building energy use intensity
                      Building type                        Building type -------------------------------------------------------------------------------
                                                           national wt.    Electric EUI       Gas EUI        Site EUI       Source EUI          $UI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Assembly................................................           0.061            13.8            -2.9             8.2            11.3            11.0
Education...............................................           0.155            13.4            -0.5             8.5            11.2            10.9
Food Service............................................           0.035             8.3            -2.4             5.9             7.3             7.1
Lodging.................................................           0.091            22.3           -15.6            13.9            18.8            18.4
Office..................................................           0.189            12.1             0.1            10.9            11.7            11.6
Retail..................................................           0.277            16.0            -0.3            14.8            15.5            15.4
Warehouse...............................................           0.191            23.2             4.2            17.2            20.6            20.2
National................................................  ..............            15.3            -1.8            11.9            13.9            13.7
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 79873]]

III. Discussion of Detailed Textual Analysis

    All 65 addenda processed by ASHRAE in the creation of Standard 
90.1-2004 from Standard 90.1-1999 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 4 shows the number of positive and negative changes 
for each section of Standard 90.1. Note that number of changes listed 
adds up to 73, indicating that some addenda covered more than one 
section.

                        Table 4--Results of Textual Analysis by Section of Standard 90.1
----------------------------------------------------------------------------------------------------------------
                                                                     Number of                       Number of
                                                     Number of       positive        Number of       negative
               Section of standard                 changes made       (energy       neutral (no       (energy
                                                    to section        saving)     energy saving)    increasing)
                                                                      changes         changes         changes
----------------------------------------------------------------------------------------------------------------
Title, Purpose, and Scope.......................               0               0               0               0
Definitions.....................................               2               0               2               0
Administration and Enforcement..................               3               0               3               0
Envelope........................................              11              11               8               2
HVAC Equipment and Systems......................              27               7              16               5
Service Water Heating...........................               3               0               3               0
Power...........................................               1               0               1               0
Lighting........................................              14               5               9               0
Energy Cost Budget..............................               5               0               5               0
Normative and Informative References............               7               0               7               0
                                                 ---------------------------------------------------------------
Overall.........................................          \2\ 73              13              54               7
----------------------------------------------------------------------------------------------------------------
\1\ The impact of the single positive envelope change greatly outweighs the impact of the two negative envelope
  changes.
\2\ The overall number of changes is more than the total number of addenda due to the fact that some addenda
  covered more than one section of the standard.

    The results of the textual analysis indicate that the majority of 
changes (54 of the total of 73 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 buildings. There 
were 13 changes that were evaluated as having a positive impact on 
energy efficiency and 7 changes that were evaluated as having a 
negative impact on energy efficiency.
    The 7 negative impacts on energy efficiency are:
    1. Reduction of slab on grade insulation requirements for northern 
U.S. and Alaska. (1999 to 2001 edition)
    2. Relaxation of heated slab on grade insulation requirement in 
northern U.S. and Alaska. (1999 to 2001 edition)
    3. Reduction of motorized damper leakage requirements for most of 
the continental U.S. (1999 to 2001 edition)
    4. Removal of requirements for motorized dampers on small-medium 
system HVAC systems. (1999 to 2001 edition)
    5. Removal of performance requirements for balancing to 10% of 
design flow rates. (1999 to 2001 edition)
    6. Relaxed requirements limiting volume of air reheated or re-
cooled in supply air systems. (1999 to 2001 edition)
    7. Expansion of Exhaust Air Energy Recovery exceptions to 
additional commercial kitchen hoods. (2001 to 2004 edition)
    Note that the majority of negative impacts are associated with 
addenda processed in the creation of the 2001 edition. These addenda 
were the main reason that a formal determination was not done on 
Standard 90.1-2001.
    The 13 positive impacts on energy efficiency include:
    1. Removed explicit allowance for supply air into non-occupied 
isolation areas. (1999 to 2001 edition)
    2. Limitations of the use of dampers in closed circuit cooling 
towers in place of water bypass valves and piping. (1999 to 2001 
edition)
    3. Additions of insulation requirements for buried ductwork. (1999 
to 2001 edition)
    4. Mapping of envelope requirements to new climate zones (2001 to 
2004 edition), which led to increased stringency of envelope 
requirements.
    5. Mapping of economizer requirements to new climate zones (2001 to 
2004 edition), which led to greater geographic expansion of economizer 
requirements.
    6. Addition of requirements for ventilation fan controls. (2001 to 
2004 edition)
    7. Lowered size range for part-load fan power limitation. (2001 to 
2004 edition)
    8. Addition of requirements for heat pump pool heaters. (2001 to 
2004 edition)
    9. Complete replacement of interior lighting power density 
allowances. (2001 to 2004 edition)
    10. Revised exterior lighting power density allowances. (2001 to 
2004 edition)
    11. Addition of occupancy sensor requirements for classrooms, 
meeting, and lunch rooms. (2001 to 2004 edition)
    12. Lower retail sales lighting power allowance. (2001 to 2004 
edition)
    13. New exit sign wattage requirement. (2001 to 2004 edition)
    Note that the majority of positive impacts are associated with 
addenda processed to create the 2004 edition. Overall, the positive 
impacts outweigh the negative impacts in a simple numerical comparison.

IV. Filing Certification Statements With DOE

A. Review and Update

    On the basis of today's DOE determination, each State is required 
to certify to DOE that it reviewed and updated, as necessary, the 
provisions of its commercial building code to meet or exceed the 
provisions of the 2004 edition. (42 U.S.C. 6833(b)(2)(B)(i)) This 
action must be taken not later than two years from the date of today's 
notice, unless an extension is provided.
    The Department recognizes that some States do not have a State 
commercial building code or have a code that does not apply to all 
commercial buildings. If local building codes regulate commercial 
building design and construction rather than a State code, the State 
must provide for review and update of those local codes to meet or

[[Page 79874]]

exceed the 2004 edition. 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 Department considers high-rise 
(greater than three stories) multi-family residential buildings and 
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 and 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 code regarding energy efficiency to meet or 
exceed the 2004 edition. The certification must include a demonstration 
that the provisions of its commercial building energy code regarding 
energy efficiency meet or exceed Standard 90.1-2004. If a State intends 
to certify that its commercial building code already meets or exceeds 
the requirements of Standard 90.1-2004, the State should provide an 
explanation of the basis for this certification, e.g., Standard 90.1-
2004 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 codes, 
should provide the certification to the Secretary. Such a designated 
State official could also provide the certifications regarding the 
codes of units of general purpose local government based on information 
provided by responsible local officials.

C. Request for Extensions

    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 more 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 requirements of Section 304 
of ECPA.

D. Submittals

    When submitting any certification documents in response to this 
notice, the Department requests that the original documents be 
accompanied by one copy of the same.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's 
determination.

    Issued in Washington, DC, on December 12, 2008.
Steven G. Chalk,
Deputy Assistant Secretary for Renewable Energy, Office of Technology 
Development, Energy Efficiency and Renewable Energy.
[FR Doc. E8-30975 Filed 12-29-08; 8:45 am]
BILLING CODE 6450-01-P