Determination Regarding Energy Efficiency Improvements in ANSI/ASHRAE/IES Standard 90.1-2013: Energy Standard for Buildings, Except Low-Rise Residential Buildings

AGENCY:

Energy Efficiency and Renewable Energy, Department of Energy.

ACTION:

Notice of determination.

SUMMARY:

The U.S. Department of Energy (DOE) has determined that the 2013 edition of the ANSI/ASHRAE/IES Standard 90.1: Energy Standard for Buildings, Except Low-Rise Residential Buildings would improve energy efficiency in buildings subject to the code compared to the 2010 edition of Standard 90.1. DOE has determined that buildings built to Standard 90.1-2013, as compared with buildings built to Standard 90.1-2010, would result in national source energy savings of approximately 8.5 percent and site energy savings of approximately 7.6 percent of commercial building energy consumption. Upon publication of this affirmative 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 codes to meet or exceed Standard 90.1-2013. Additionally, this notice provides guidance to States on certifications and requests for extensions of deadlines for certification statements.

DATES:

Certification statements provided by States must be submitted by September 28, 2015.

ADDRESSES:

Certification Statements must be addressed to the Building Technologies Office—Building Energy Codes Program Manager, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Avenue SW., EE-5B, Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT:

Jeremiah Williams; U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Avenue SW., EE-5B, Washington, DC 20585; (202) 287-1941; Jeremiah.Williams@ee.doe.gov.

For legal issues, please contact Kavita Vaidyanathan; U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW., GC-71, Washington, DC 20585; (202) 586-0669; Kavita.Vaidyanathan@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

II. Introduction

III. Methodology

IV. Summary of Findings

V. Determination Statement

VI. State Certification

VII. Regulatory Review & Analysis

I. Statutory Authority

Title III of the Energy Conservation and Production Act, as amended (ECPA), establishes requirements for building energy conservation standards, administered by the DOE Building Energy Codes Program. (42 U.S.C. 6831 et seq.) Section 304(b), as amended, of ECPA provides that whenever the ANSI/ASHRAE/IESNA Standard 90.1-1989 (Standard 90.1-1989 or 1989 edition), or any successor to that code, is revised, the Secretary of Energy (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 2 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)) Each State must include in its certification a demonstration that the provisions of its commercial building code, regarding energy efficiency, meet or exceed the revised Standard. (42 U.S.C. 6833(b)(2)(B)(i))

If the Secretary makes a determination that the revised Standard will not improve energy efficiency in commercial buildings, State commercial codes shall meet or exceed the last revised Standard for which the Secretary has made an affirmative determination. (42 U.S.C. 6833(b)(2)(B)(ii)) On October 19, 2011, DOE published its determination in the Federal Register updating the reference code to Standard 90.1-2010. (76 FR 64904)

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(b) of ECPA and that it has made significant progress in doing so. (42 U.S.C. 6833(c)) DOE is also directed to provide technical assistance to States to support implementation of State residential and commercial building energy efficiency codes. (42 U.S.C. 6833(d))

II. Introduction

Publication of Standard 90.1-2013

The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and Illuminating Engineering Society (IES) approved the publication of the 2013 edition of Energy Standard for Buildings Except Low-Rise Residential Buildings in October 2013. The Standard is developed under ANSI-approved consensus procedures, and is under continuous maintenance by a Standing Standard Project Committee. ASHRAE has established a program for regular publication of addenda, or revisions, including procedures for timely, documented, consensus action on requested changes to the Standard. The American National Standards Institute (ANSI) approved the final addendum for inclusion in the 2013 edition in September 2013. Standard 90.1-2013 was published in October 2013. More information on ANSI/ASHRAE/IES Standard 90.1-2013 is available at: https://www.ashrae.org/resources-publications/bookstore/standard-90-1 .

DOE Determination

In arriving at its determination, DOE reviewed all changes between the 2013 and 2010 editions 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 simpler commercial buildings to more complex hospitals and laboratory facilities. Standard 90.1-2013 was developed through the same approach as the previous 2010 edition, which involves committee approval through a consensus process consistent with ANSI procedures for developing industry standards. The 2013 edition contains no significant changes to the overall scope or the structure of the Standard. As a result, DOE preliminarily determined that the methodology used for the analysis of Standard 90.1-2010 should again be utilized for the analysis of Standard 90.1-2013. DOE published a Notice of Preliminary Determination regarding Standard 90.1-2013 in the Federal Register on May 15, 2014. (79 FR 27778)

Public Comments Regarding the Determination

DOE accepted public comments on the Notice of Preliminary Determination for Standard 90.1-2013 until June 16, 2014. DOE received timely submissions from a total of three commenters. These comments are discussed below.

Jim Ranfone submitted a written document (Docket No. EERE-2014-BT-DET-0009-0002) containing three comments. In his first comment, Mr. Ranfone questions the economic basis of Standard 90.1, in particular the fact that ASHRAE does not use marginal costs for natural gas. Mr. Ranfone indicates that this will overstate the cost savings from the energy upgrades in the Standard. In response, DOE notes that it is directed by statute to evaluate published editions of Standard 90.1 and issue a determination as to whether the updated edition will result in energy savings in commercial buildings. DOE is not given the authority to dictate specific economic criteria informing the decisions of the ASHRAE Standard 90.1 Committee. DOE notes that the membership of the ASHRAE Standard 90.1 Committee, itself, develops economic criteria to inform its decisions surrounding the cost-effectiveness of proposed code changes. As a national model, the Standard 90.1 Committee chose to reference national average values in the development of the Standard. In his second comment, Mr. Ranfone questioned the use of a blended rate for heating costs. He contends that the blended rate skews the basic energy cost assumptions by overstating efficiency improvements that affect natural gas, and understating electric savings for improvements affecting electricity savings. In response, DOE notes that it is directed by statute to evaluate published editions of Standard 90.1, and issue a determination as to whether the updated edition will result in energy savings in commercial buildings. DOE is not given the authority to dictate specific cost parameters and other economic criteria informing the decisions of the ASHRAE Standard 90.1 Committee. Specific to the topic of “blended” utility costs, DOE has reviewed the economic criteria established by the ASHRAE Standard 90.1 Committee, and notes criteria employed in Standard 90.1-2013 as consistent with past criteria used in the development of the Standard—an approach that appears unchanged since the development of Standard 90.1-1999. In his third comment, Mr. Ranfone also questioned the inclusion of requirements in Standard 90.1-2013 that are neutral in terms of energy efficiency, but which would add costs for compliance, specifically citing requirements for electric and fuel meters. In response, DOE again notes its statutory role in assessing energy savings associated with Standard 90.1, and in issuing a determination of energy savings for commercial buildings. DOE is not given the authority to reconcile costs of specific code provisions, or overall economics surrounding updated codes, as part of its energy savings determination. Rather, such consideration is provided directly as part of the code development and consensus process. In general, DOE acknowledges that code changes which do not have a direct impact on energy efficiency are common, including a number of changes in Standard 90.1-2013. Such changes often target an alternative objective, such as improved code usability or enforceability, but which otherwise seek to improve the design and construction of energy efficient buildings. Within the context of the DOE determination, individual addenda included in Standard 90.1-2013 are identified and further evaluated in the supplementary technical support documents.

The Responsible Energy Codes Alliance (RECA) submitted a written document (Docket No. EERE-2014-BT-DET-0009-0003) containing five comments. In its first comment, RECA encourages the Department to provide an itemized comparison between Standard 90.1 and the IECC. DOE has previously conducted this type of additional analysis as technical assistance for States and adopting localities in understanding the provisions of the respective editions of Standard 90.1 and the IECC. DOE acknowledges the comparison between Standard 90.1 and the IECC as an important resource for States. In line with historical practice, and as budgets allow, DOE may prepare such a comparison for Standard 90.1-2013 and the 2015 IECC commercial provisions. RECA encourages the Department to quickly finalize this Determination. DOE understands the importance of fulfilling its directives in a timely manner, and intends to complete its determination within the statutory timeline set forth in 42 U.S.C. 6833(b)(2)(A). In its third comment, RECA strongly encourages the Department to provide resources to improve the overall compliance rates with commercial energy codes, as well as compliance with specific sections. DOE recognizes the significant energy savings potential associated with ensuring code-intended energy savings, and acknowledges the importance of resources to improve compliance rates. In a continuing effort, DOE intends to provide technical assistance in the form of training materials and support for commercial codes in order to improve compliance rates. DOE also recently issued a Funding Opportunity Announcement (FOA) for improving residential energy code compliance, and, in the future, will investigate means of providing additional support pertaining to commercial energy codes. In its fourth comment, RECA does not believe that DOE may consider cost-effectiveness as part of its determination process, but does believe that DOE should provide cost-effectiveness analyses to States. As DOE has stated in its Notice of Preliminary Determination, it did not evaluate cost-effectiveness as part of its energy savings determination. However, DOE intends to continue providing national and state-level cost-effectiveness analyses as technical assistance to States, as has been completed in the past for Standard 90.1-2010 at http://www.energycodes.gov/development/commercial/cost_effectiveness . In its fifth comment, RECA believes the DOE cost-effectiveness methodology is a reasonable compromise representing diverse stakeholder interests, and that the Department should maintain the same methodology for Standard 90.1-2013 and the 2015 IECC. DOE also acknowledges RECA's previous comments on the cost-effectiveness methodology in Docket No. EERE-2011-BT-BC-0046. In response, DOE intends to continue to use its current cost-effectiveness methodology for analysis of Standard 90.1-2013. In addition, DOE is looking into the possibility of updating its methodology for evaluating the cost-effectiveness of building energy codes through a public request for information in the coming months, and to be used in analyzing future building energy codes and standards. DOE may issue a request for information prior to finalizing the new methodology.

The Edison Electric Institute (EEI) submitted a written document (Docket No. EERE-2014-BT-DET-0009-0004) containing three comments. In its first comment, EEI suggests DOE should only use site energy and energy cost results in its determination on Standard 90.1-2013, and that source energy results should not be used. DOE notes that EEI submitted a similar comment on the Notice of Preliminary Determination for Standard 90.1-2010. DOE considered the comment again and is again rejecting the comment. DOE continues to believe that, in addition to the site metric, source energy estimates are important to the discussion of global resources and environmental issues. In its second comment, EEI suggests energy savings from new or updated Federal appliance and equipment standards should be incorporated into the determination on Standard 90.1-2013. DOE notes that EEI submitted a similar comment on the Notice of Preliminary Determination for Standard 90.1-2010. DOE considered the comment again and is again rejecting the comment. Many appliance and equipment standards are not established directly within Standard 90.1, but rather are established by the Federal government. For this reason, DOE continues to believe that energy savings resulting from new or updated Federal standards should not be incorporated into its determinations. In its third comment, EEI suggests that value associated with primary energy for electricity is overstated based on four specific reasons: (1) DOE considered only commercial customers, not residential and industrial customers; (2) the EIA fossil fuel heat rate is too high; (3) on-site renewable energy is included in EIA's data and that inflates the primary energy data; and (4) estimates of primary energy values should look forward not backward. DOE notes that EEI submitted a similar comment on the Notice of Preliminary Determination for Standard 90.1-2010. DOE considered the comment again and is again rejecting the comment because DOE continues to believe that its use of EIA data, conversion factors, and treatment of renewable energy is appropriate.

In its Notice of Preliminary Determination, DOE expressed interest in receiving stakeholder feedback on the Department's practice of providing cost-effectiveness analysis to support State energy code adoption. DOE has issued past requests to guide the Department in establishing an appropriate methodology for evaluating the cost effectiveness of building energy codes (78 FR 47677), and expects to update this method to ensure its assumptions and economic criteria remain valid and adequate for States considering adoption of model building energy codes. During the public comment period, DOE did not receive any comments (i.e., outside of factors acknowledged above) on the overall costs and benefits associated with building energy codes. In the coming months, DOE intends to issue a public request for information to update its cost-effectiveness analysis methodology, and in preparation to continue providing such technical analysis and assistance to States implementing building energy codes.

III. Methodology

Overview of Methodology

The analysis methodology used by DOE contains both qualitative and quantitative components. A qualitative comparison is undertaken to identify textual changes between requirements in Standard 90.1-2013 and Standard 90.1-2010, followed by a quantitative assessment of energy savings conducted through whole-building simulations of buildings constructed to meet the minimum requirements of each Standard over the range of U.S. climates. A discussion of the analysis methodology, which was developed through public comment in past DOE determinations, can be found in the Notice of Preliminary Determination for Standard 90.1-2007 (75 FR 54117) and Notice of Preliminary Determination for Standard 90.1-2010 (76 FR 43298).

Consistent with its previous determinations, DOE compared overall editions of Standard 90.1. 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 90.1-2013), then that revised or successor Standard triggers the Secretary's obligation to issue a determination as to whether the revised Standard improves energy efficiency in commercial buildings. (See 42 U.S.C. 6833(b)(2)(A)) This determination is made by comparing the revised or successor Standard to the last predecessor Standard. While the continuous addenda review and update process is part of the ongoing maintenance of the Standard, DOE does not interpret each addendum update after the release of the full standard as an additional “revised or successor standard” requiring a determination by the Secretary.

IV. Summary of Findings

In performing its determination, DOE performed both a qualitative and quantitative analysis of the requirements contained in Standard 90.1-2013. The chosen methodology for these analyses is consistent with recent determinations actions, and provides a reasonable assessment of how the Standard will impact energy savings in commercial buildings. A summary of the analyses supporting DOE's determination is outlined in the following sections.

Qualitative Analysis

DOE performed a comparative analysis of the textual requirements of Standard 90.1-2013, examining the specific changes (addenda) made between Standard 90.1-2010 and Standard 90.1-2013. ASHRAE publishes changes to its standards as individual addenda to the preceding Standard, and then bundles all addenda together to form the next published edition. In creating the 2013 edition, ASHRAE processed 110 total addenda. DOE evaluated each of these addenda in preparing its determination of energy savings.

Overall, DOE found that the vast majority of changes in creating Standard 90.1-2013 were positive (i.e., increased energy savings) or neutral (i.e., no direct impact on energy savings). Positive changes significantly outweigh any changes with a negative effect on energy efficiency in commercial buildings. Of the 110 total changes:

• 52 were considered positive;
• 53 were considered neutral; and
• 5 were considered negative.

Table IV.1 presents the findings resulting from the qualitative analysis, along with a description of the change, as well as an assessment of the anticipated impact on energy savings in commercial buildings. The full qualitative analysis is presented in a separate technical support document (TSD), available at http://www.energycodes.gov/regulations/determinations .

KEY: The following terms are used to characterize the effect of individual addenda on energy efficiency (as contained in the above table): Major + indicates that an addendum is anticipated to significantly improve energy efficiency; Minor + indicates that an addendum may improve energy efficiency in specific applications, Neutral indicates that an addenda is not anticipated to impact energy efficiency; and Minor - indicates that an addendum may increase energy use in certain applications.

Table IV.2 summarizes the overall impact of the addenda in the qualitative analysis. Overall, the sum of the major positive and minor positive addenda (i.e., 52 addenda) greatly overwhelms the number of minor negative addenda (i.e., five addenda), leading to the qualitative conclusion that the overall impact of the addenda on the Standard is positive.

Quantitative Analysis

The quantitative analysis of Standard 90.1-2013 was carried out using whole-building energy simulations of buildings designed to meet the requirements of Standard 90.1-2010 and Standard 90.1-2013. DOE simulated 16 representative building types across 15 U.S. climate locations, with locations selected to be representative of all U.S. climate zones, as defined by Standard 90.1-2010 and Standard 90.1-2013 (climate zone criteria unchanged between the 2010 and 2013 editions). In addition, energy use intensities (EUIs) by fuel type and by end-use were extracted for each building type, and weighted by the relative square footage of construction (represented by that building type in each of the 15 climate regions) based on the McGraw Hill Construction (MHC) Projects Starts Database. The data is commonly 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), to characterize U.S. building construction. In addition, the MHC database identifies multi-family residential buildings that would be covered under the scope of Standard 90.1.

EUIs developed for each representative building type are weighted by total national square footage of each representative building type to estimate the difference between the national energy use in buildings constructed to the 2010 and 2013 editions of Standard 90.1. Note that the buildings types used in the quantitative analysis reflect approximately 80% of the total square footage of commercial construction, including multi-family buildings greater than three stories that are covered within the scope of ASHRAE Standard 90.1.

The quantitative analysis of buildings designed to meet the requirements of Standard 90.1-2013 indicates national primary energy savings of approximately 8.5 percent of commercial building energy consumption (in comparison to Standard 90.1-2010). Site energy savings over Standard 90.1-2010 are estimated to be approximately 7.6 percent. Using national average fuel prices for electricity and natural gas, DOE also estimates a reduction in energy expenditures of 8.7 percent compared to Standard 90.1-2010.

Table IV.3 and Table IV.4 show the energy use and associated savings resulting from Standard 90.1-2013 by building type and on an aggregated national basis. Further details on the quantitative analysis can be found in the full technical support document (TSD) available at http://www.energycodes.gov/regulations/determinations.

Table IV.5 presents the estimated energy savings (based on percent change in EUI) associated with Standard 90.1-2013. Overall, the updated Standard is expected to increase the energy efficiency of commercial buildings, as represented in Table IV.5.

V. Determination Statement

Review and evaluation of the 2010 and 2013 editions of Standard 90.1 indicate that there are significant differences between the two editions. Qualitative analysis of the updated Standard reveals that a majority of the addenda are anticipated to result in significant energy savings. In addition, quantitative analysis of the Standard indicates source and site energy savings of 8.5 percent and 7.6 percent, respectively. DOE has rendered the conclusion that Standard 90.1-2013 will improve energy efficiency in commercial buildings, and, therefore, receives an affirmative determination under Section 304(b) of ECPA.

VI. State Certification

Upon publication of this affirmative 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 2013 edition of Standard 90.1. (42 U.S.C. 6833(b)(2)(B)(i)) This action is required not later than 2 years from the date the final Notice of Determination is published in the Federal Register, unless an extension is provided.

State Review & Update

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 2013 edition of Standard 90.1. States may base their certifications on reasonable actions by units of general-purpose local government. Each such State must review the information obtained from the local governments, and gather any additional data and testimony in preparing its own certification.

The applicability of any State revisions to new or existing buildings would be governed by the State building codes. States should be aware that the DOE considers high-rise (greater than three stories) multi-family residential buildings as commercial buildings for energy code purposes, as is consistent with the scope of Standard 90.1. Consequently, commercial buildings, for the purposes of certification, would include high-rise multi-family residential buildings, hotels, motels, and other transient residential building types of any height.

State Certification Statements

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 90.1-2013. (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 meets or exceeds Standard 90.1-2013. If a State intends to certify that its commercial building energy code already meets or exceeds the requirements of Standard 90.1-2013, the State should provide an explanation of the basis for this certification (e.g., Standard 90.1-2013 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 (e.g., 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.

The DOE Building Energy Codes Program tracks and reports State code adoption and certifications. 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 code (i.e., ASHRAE Standard 90.1-2013). DOE has issued previous guidance on how it intends to respond to technical assistance requests related to implementation resources, such as building energy code compliance software. (79 FR 15112) DOE also recognizes that 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 incentive funding (e.g., grants) to these States through various means, such as the State Energy Program. DOE does not prescribe how each State adopts and enforces its energy codes.

Requests 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 both of the following: (1) a plan for response to the requirements stated in Section 304; or (2) a statement that the State has appropriated or requested funds (within State funding procedures) to implement a plan that would respond to the requirements of Section 304 of ECPA. This list is not exhaustive. Requests are to be sent to the address provided in the ADDRESSES section above, or may be submitted to BuildingEnergyCodes@ee.doe.gov.

VII. Regulatory Review & Analysis

Review Under Executive Orders 12866 and 13563

Today's action is not a significant regulatory action under Section 3(f) of Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735). Accordingly, today's action was not reviewed by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB). DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. (76 FR 3281). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866.

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), 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 also made its procedures and policies available on the Office of General Counsel Web site.

DOE has reviewed today's determination under the provisions of the Regulatory Flexibility Act and the procedures and policies published in February 2003. As part of this determination of improved energy efficiency, section 304 of ECPA requires States to undertake an assessment of their respective building codes. As such, the only entities directly regulated by this 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.

Based on the foregoing, DOE certifies that this 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 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).

Review Under the National Environmental Policy Act of 1969

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 2 years after the date of the publication of such affirmative determination, each State is required to certify that it has reviewed and updated the provisions of its commercial building code regarding energy efficiency with respect to the revised or successor code. (42 U.S.C. 6833(b)(2)(B)(i)) If the Secretary makes a determination that the revised Standard will not improve energy efficiency in commercial buildings, then State commercial codes shall meet or exceed the last revised Standard for which the Secretary has made a positive determination. (42 U.S.C. 6833(b)(2)(B)(ii)) Therefore, DOE has preliminarily determined that the Secretary's determination is not a major Federal action that would have direct environmental impacts. Accordingly, DOE has not prepared an environmental assessment or an environmental impact statement.

Review Under Executive Order 13132, “Federalism”

Executive Order 13132 (64 FR 43255) 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, and 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 ensure, 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 edition of Standard 90.1 would improve the level of energy efficiency in commercial buildings as compared to the previous edition. If DOE makes a positive determination, the statute requires each State to certify that it has reviewed and updated the provisions of its commercial building code regarding energy efficiency with respect to the revised or successor codes. (42 U.S.C. 6833(b)(2)(B)(i))

Executive Order 13132 requires meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications unless funds necessary to pay the direct costs incurred by the State and local governments in complying with the regulation are provided by the Federal Government. (62 FR 43257) Pursuant to Section 304(e) of ECPA, the DOE Secretary is required to provide incentive funding to States to implement the requirements of section 304, and to improve and implement State residential and commercial building energy efficiency codes, including increasing and verifying compliance with such codes. In determining whether, and in what amount, to provide incentive funding, the Secretary must 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. (See 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 90.1-2013. The ASHRAE Standard is developed in a national, ANSI-approved consensus process open to the public, and in which State and local governments may participate, along with the general public. The updated Standard is the product of a series of amendments to the prior edition of the Standard, with each addendum made available for public review with any interested party having the ability to submit comments. Comments on the addendum are received, reviewed, and resolved through an established process commonly utilized in generating industry consensus standards. Members of the Standard 90.1 project committee have included representatives of State and local governments. DOE believes that this process has given State and local jurisdictions extensive opportunity to comment and express any concerns on Standard 90.1-2013, the subject of this determination.

On issuance of a determination that Standard 90.1-2013 would improve the energy efficiency of commercial buildings, ECPA requires each State 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 90.1-2013. 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 90.1-2013 or develop their own code that meets or exceeds Standard 90.1-2013.

Review Under 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 an assessment of the anticipated costs and benefits of any rule that includes a Federal mandate that 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.

Consistent with previous determinations, DOE has completed its review, and concluded that impacts on state, local and tribal governments are less than the $100 million threshold specified in the Unfunded Mandates Act. Accordingly, no further action is required under the Unfunded Mandates Reform Act of 1995. Documentation supporting this review is contained in Appendix D of the Quantitative Analysis technical support document (TSD) available at http://www.energycodes.gov/regulations/determinations .

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.

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) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by the Office of Management and Budget (OMB). Both OMB and DOE have published established relevant guidelines (67 FR 8452 and 67 FR 62446, respectively). 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.

Review Under Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355), 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 OMB Office of Information and Regulatory Affairs (OIRA) as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use, should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

Review Under Executive Order 13175

Executive Order 13175, “Consultation and Coordination with Indian tribal Governments” (65 FR 67249), 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 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.