10 cfr 434-435 waisgate federal register

7/31/2019 10 CFR 434-435 Waisgate Federal Register

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Friday,

October 6, 2000

Part IV

Department ofEnergyOffice of Energy Efficiency andRenewable Energy

10 CFR Parts 434 and 435

Energy Code for New Federal Commercialand Multi-Family High Rise ResidentialBuildings; Final Rule

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60000 Federal Register / Vol. 65, No. 195/ Friday, October 6, 2000 / Rules and Regulations

DEPARTMENT OF ENERGY

Office of Energy Efficiency andRenewable Energy

10 CFR Parts 434 and 435

[Docket No. EERM79112C]

RIN 1904AA69

Energy Code for New FederalCommercial and Multi-Family HighRise Residential Buildings

AGENCY: Office of Energy Efficiency andRenewable Energy, DOE.

ACTION: Final rule.

SUMMARY: The Department of Energytoday issues a rule that establishes

building energy efficiency standards fornew Federal commercial and multi-family high rise residential buildings

pursuant to the requirements of theEnergy Conservation and ProductionAct (ECPA). The final rule revises thecurrent interim Federal standards toconform generally with the format of thecurrent voluntary building energycodes. The final rule containssubstantive changes from the interimrule in the areas of lighting, mechanicalventilation, motors, building envelopes,fenestration rating test procedures, andtest procedures for heating and coolingequipment.

DATES: Effective Date:This regulation iseffective October 8, 2001. Theincorporation by reference of certainpublications listed in this rule isapproved by the Director of the FederalRegister as of October 8, 2001.

FOR FURTHER INFORMATION CONTACT:

Ronald B. Majette, Office of Codes andStandards, EE43, U.S. Department ofEnergy, Room 1J018, 1000Independence Avenue, SW.,Washington, DC 205850121, Tel:2025860517

Francine B. Pinto, Office of GeneralCounsel, GC72, U.S. Department ofEnergy, Room 6E042, 1000Independence Avenue, SW.,

Washington, DC 205850103, Tel:2025867432

SUPPLEMENTARY INFORMATION:

I. IntroductionA. AuthorityB. BackgroundC. Description of the Final Rule

II. Discussion of Comments and Changes tothe Proposed Rule

A. General Comments1. Incorporation by reference2. Metric Units of MeasurementB. Section-by-Section Comments1. Compliance, Subpart A, Section 102

2. Default Values for UnlabeledFenestration Products, Subpart D,Section 402

3. Solar Heat Gain and ShadingCoefficients, Subpart D, Section 201 and402

4. Interior Lighting Power Allowances,Subpart D, Section 401

5. Task Lighting Footnote, Subpart D,Section 401

6. Ventilation Requirements for EnclosedParking Garages, Subpart D, Section 4037. Thermal Efficiency Requirements for

Furnaces and Boilers, Subpart D, Section403

8. Integrated Part Load Values for CoolingEquipment Efficiency, Subpart D,Section 403

9. Two-Tiered Code, Subpart D, Section403

10. Equipment Absorption CoolingRequirements, Subpart D, Section 403

11. Heat Pump Supplementary HeatOperation, Subpart D, Section 403

12. Combined Water and Space Heating,Subpart D, Section 404

13. Lavatory Water Temperature, Subpart

D, Section 40414. Shower Heads and Lavatory Faucets,Subpart D, Section 404

15. Equipment for Prototype or ReferenceBuildings, Subpart E, Section 518

16. Determination of Energy CostBudget(ECB), Subpart E, Section 501

17. Conversion Factors for Electricity,Subpart F, Section 601, 602

C. Other ChangesIII. ConsultationIV. Energy ImpactsV. Technological Feasibility and Economic

JustificationVI. Measures Concerning Radon and Other

Indoor Air PollutantsVII. Procedural Determinations

A. Review Under Executive Order 13132,Federalism

B. Review Under Executive Order 12988,Civil Justice Reform

C. Review Under Executive Order 12866,Regulatory Planning and Review

D. Review Under the Regulatory FlexibilityAct of 1980

E. Review Under the NationalEnvironmental Policy Act

F. Paperwork Reduction Act ReviewG. Review Under the Unfunded Mandates

Reform Act of 1995H. Review Under Section 32 of the Federal

Energy Administration Act of 1974I. Takings Assessment Review

J. Congressional NotificationK. National Technology Transfer and

Advancement Act

I. Introduction

A. Authority

Section 305(a)(1) of the EnergyConservation and Production Act, asamended (ECPA), 42 U.S.C. 6834(a)(1),requires the Department of Energy(Department or DOE) to establish byrule energy standards for new Federal

buildings. In developing this final rule,the Department is directed to consultwith other Federal agencies as well as

private and State associations and otherappropriate persons.

Section 305(a)(1) requires that the rulecontain energy efficiency measures thatare technologically feasible andeconomically justified. Since ECPAestablishes that the new standards meet,at a minimum, the requirements of theAmerican Society of Heating,

Refrigerating and Air-ConditioningEngineers, Inc. (ASHRAE)/IlluminatingEngineering Society of North America(IESNA) Standard 90.11989(hereinafter Standard 90.11989)(Section 305(a)(2)(A), the Department isnot required to establish thetechnological feasibility and economicjustification for these minimumstatutorily prescribed requirements(otherwise referred to as the statutory

baseline). The Department isinterpreting this minimum requirementto include those addenda to Standard90.11989 which were in effect at the

time the Energy Policy Act of 1992(EPACT), which amended ECPA, wasenacted. Since these addenda were partof Standard 90.11989 at the timeEPACT was enacted, they are part of the

baseline against which the final rule iscompared for the purposes of assessingits energy and economic impacts.

Section 305(a)(2)(A) requires that therule contain energy saving andrenewable energy specifications thatmeet or exceed the energy saving andrenewable energy specifications ofStandard 90.11989 for commercial

buildings and of the Model Energy Code(MEC), 1992, for residential buildings.

MEC 1992 exempts multi-family high-rise residential buildings (over threestories in height above ground) whichcomply with Standard 90.11989. As aresult, Standard 90.11989 is theapplicable standard under section 305of ECPA for high-rise residential

buildings. The final rule complies withsection 305(a)(2)(A).

The rule issued today is required tobecome effective no later than one yearafter it is issued. (Section 305(a)(1)). Theeffective date is October 8, 2001.

Section 305(a)(2)(B) requires that tothe extent practicable, the new Federal

building energy standards use the sameformat as the appropriate voluntarybuilding energy code. The final rulerevises the current interim Federalstandards to conform generally with theformat and language of the codifiedversion of Standard 90.11989. Theaddenda to Standard 90.11989included in the final rule are alsogenerally incorporated in their codifiedform.

Section 305(a)(2)(C) further requiresthat the final rule be established inconsultation with the Environmental



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60001Federal Register / Vol. 65, No. 195/ Friday, October 6, 2000 / Rules and Regulations

Protection Agency (EPA) and otherFederal agencies and, whereappropriate, contain measures withregard to radon and other indoor airpollutants.

Section 305(c) states that thestandards issued in the final rule bereviewed and, if appropriate, updated atnot less than five year intervals.

Section 306 addresses Federalcompliance. Section 306(a) providesthat each Federal agency must adoptprocedures to assure that new Federal

buildings will meet or exceed theFederal building energy standardsestablished by this rule. Section 306(b)

bars the head of a Federal agency fromexpending Federal funds for theconstruction of a new Federal Buildingunless the building meets or exceeds theappropriate Federal building energystandards established under section 305.Under section 306, Federal agenciesshall adopt procedures necessary toassure that new Federal buildings meetor exceed the Federal standard. Forinstance, a Federal agency might adopta procedure allowing the use of local

building codes that meet or exceed theFederal building standard in lieu of theFederal code. Or, if desired, the agencymight adopt code inspection proceduresto assure compliance with the Federalstandard.

B. Background

On January 30, 1989, the Departmentissued an interim standard (10 CFR part435, subpart A) establishing energyconservation voluntary performance

standards for the design of newcommercial and multi-family high riseresidential buildings; these standardsare mandatory for Federal buildings.The Departments interim standards andStandard 90.11989 were developed inconjunction with one another andcontain similar energy efficiencyprovisions. ASHRAE and IESNA areprofessional engineering societies whichhave undertaken the responsibility ofsponsoring a voluntary industryconsensus standard for the design ofenergy efficient commercial and multi-family high rise residential buildings.

The Departments interim standardand Standard 90.11989 followed aparallel development track. ASHRAE/IESNA provided technical expertise thatensured the practicality of the interimstandards and Standard 90.11989. TheDepartment contributed technicalexpertise and research results in thedevelopment of these two standards.

The Department, in 1993 requestedASHRAE to assist the Department inproducing a version of Standard 90.11989 and its addenda in code format.This joint effort was undertaken to assist

States in responding to section 304(b) ofECPA and to assist the Department inestablishing Federal building energyefficiency standards. The resulting code,published by ASHRAE/IESNA inNovember 1993 is entitled EnergyCode for Commercial and High-RiseResidential Buildings (hereinafter, thecodified version). This code has been

approved by the Council of AmericanBuilding Officials (CABO) as the basisfor its requirements for non-residential

buildings in the MEC and some of theregional model codes.

ASHRAE/IESNA periodicallymodifies the current edition of theirstandard through an addenda process.ASHRAE/IESNA has approved severaladdenda to Standard 90.11989 since itwas published in 1989. The addendaapplicable to this rule are: Addenda b,c, d, e, f, g, and i.

ASHRAE/IESNA is currently workingto produce a new standard that willreplace ASHRAE/IESNA Standard 90.1.The Department is also working toproduce a new standard that is morestringent than the parameters of todaysfinal rule. It is targeted to be 30 percentmore energy efficient overall than theresults of the 1985 EconomicAssessment for the current interimstandard, published in 10 CFR part 435,or 2030 percent more efficient thantodays final rule. The Departmentsdecision to promulgate todays final ruleis based on a need for Federal buildingsto be in full compliance with EPACTrequirements and to adopt all applicableaddenda from Standard 90.11989 that

improve energy efficiency. Federalconstruction will benefit in energysavings from the updated standardswhile the Department continues itswork on a new standard that is morestringent than todays final rule. Indeveloping a new standard, theDepartment will consider the updatedASHRAE/IESNA Standard 90.1 as wellas other improvements that may beeconomically justified andtechnologically feasible.

On August 6, 1996, the Departmentpublished a notice of proposedrulemaking in the Federal Register,

Energy Code for New FederalCommercial and Multi-Family High RiseResidential Buildings, 61 FR 40882, toestablish building energy efficiencystandards for new Federal commercialand multi-family high rise residential

buildings pursuant to the requirementsof ECPA, as amended. On September 4,1996, a public hearing was held inWashington, DC, at which time twocommenters made oral presentations.The comment period closed November4, 1996. Fourteen commenterssubmitted a total of 50 written

comments during the public commentperiod.

C. Description of the Final Rule

The standards issued today specify aminimum level of energy efficiency fornew Federal commercial and high-riseresidential buildings based on Standard90.11989. The final rule contains

substantive changes from the interimstandard in the areas of lighting,mechanical ventilation, motors,

building envelopes, fenestration ratingprocedures, and heating and coolingequipment test procedures. It includesthose addenda which were in effect atthe time EPACT was enacted(Addendum 90.1b revising service waterheating criteria and updatingmiscellaneous references to otherstandards, Addendum 90.1d addressinglighting controls, and Addendum 90.1eupdating ventilation requirements).

The final rule also adopts a formatthat generally conforms to the format ofthe codified version of Standard 90.11989, providing provisions to the finalrule that are similar to those beingadopted by State and local jurisdictions.It does not address the design ofresidential single family or multi-familylow rise buildings, currently addressed

by subpart C of 10 CFR part 435. Suchbuildings will be addressed in aseparate rulemaking.

The current interim standards forFederal commercial and multi-familyhigh-rise residential buildings are foundin subpart A of 10 CFR part 435. Forclarity and ease of use, the Department

is replacing subparts A and B of part435 with the new 10 CFR part 434,containing the building energyefficiency requirements for new Federalcommercial and multi-family high-riseresidential buildings.

The final rule also includes severalother addenda adopted by ASHRAE andIESNA after EPACT was enacted. Theseinclude Addenda g, i, and c, addressing

building envelopes, heating and coolingequipment test procedures, motorefficiency, and procedures forcalculating fenestration ratings,respectively.

The lighting standards in the finalrule differ from both the interimstandards and Standard 90.11989.Overall, the updated lighting provisionsare more stringent than Standard 90.11989 and reflect new informationconcerning energy requirements neededto achieve adequate lighting levels.

The final rule provides minimumenergy efficiency levels to be required ineach new Federal commercial and high-rise residential building. The individualspecifications for lighting, heating,ventilating and air-conditioning (HVAC)



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equipment, envelope, and other aspectsof buildings found in subpart D of thefinal rule determine the minimum levelof energy efficiency required for aparticular building. This prescriptivepath provides a simple means ofensuring that design specifications meetthe compliance requirements of the finalrule.

Flexibility is also a key feature of thefinal rule. While some of the specificdesign requirements of subpart D applyin all cases, this final rule provides forflexibility in many other areas if

building designers can show that theoverall building energy use or energycost compares favorably to the baselineenergy use or energy cost based onSubparts E or F of the final rule.Tradeoffs among lighting systems andamong building shell components can

be made using the Departments versionof the Envelope Standard (ENVSTD)

software. Building-wide trade-offsamong energy efficient features,including features not explicitlyaddressed in Subpart D, such as passiveand active renewable energy sourcefeatures, can be made as well. SubpartE allows building-wide flexibility aslong as the net result equals or is belowan energy cost budget based on theprescriptive path. Subpart F allowsthese trade-offs to be made if predictedtotal building energy use is at or belowthe level expected using theprescriptive path for a reference

building. These alternative paths areespecially valuable as a means for

building designers to take advantage ofthe energy savings potential of newtechnologies.

ASHRAE and IESNA have publishedStandard 90.11989 in a code formatthat is generally consistent with thestandard itself. The Department has

based its rule on the format of thecodified version of Standard 90.11989,published by ASHRAE and IESNA in1993, and has adopted verbatimsignificant portions of it.

The codified version is widely used

by State and local code making bodiesas they update their codes. Thedesigners and builders of Federal

buildings, who also design andconstruct State and private sector

buildings, will be familiar with theprovisions of the codified version, theirimportance, and how to meet them.Therefore, the consistency of the formatof the final rule with industry-widepractices facilitates implementation byFederal agencies of the final rule.

II. Discussion of Comments andChanges to the Proposed Rule

This section responds to significantcomments and explains other changes tothe proposed rule.

A. General Comments

(1) Incorporation By Reference

The Department proposed to includethe entire Federal code in a new 10 CFRpart 434, instead of incorporatingprovisions of Standard 90.11989 byreference. DOE invited comments as towhether Standard 90.11989, includingappropriate addenda, should beincorporated by reference instead ofpublishing the rule in its entirety. Onecommenter (Society of Plastics Industry,Inc. (SPI), No. 6; 1) stated that itsupported publishing the rule in itsentirety so that all relevantrequirements, including addenda, aretogether in one document. It stated thatthis would make the final rule moreuser-friendly. One commenter suggestedthat the Standard 90.11989 beincorporated by reference withappropriate addenda, and that theDepartment publish only the differences

between the Standard 90.11989 andthe final rule. Federal InteragencyEnergy Management Task Force(hereinafter New Space WorkingGroup), (New Space Working Group,No. 14; 1).

The Department has concluded thatthere are a number of importantsubstantive technical and administrativedifferences between Standard 90.11989

and the final rule which need to beincluded in one document forsimplicity, ease, and availability.Administratively, these range from thescope of buildings and spaces covered (anumber of Federal building types andspace categories would not be coveredif Standard 90.11989 were adopted byreference), to the terminology used indefining the relationship betweenowners, designers and code officials, asopposed to agencies and their designcontractors. The differences range fromsignificantly more stringent lightingcriteria to the incorporation of metric

units. It would be cumbersome andinefficient to require agencies to pulldisparate elements from several sourcesand integrate them for use.

The Department believes that since 10CFR part 434 is a code strictly forFederal commercial and high riseresidential buildings, the entire codemust be readily available to Federalmanagers who must comply with thiscode while designing and constructingnew Federal facilities.

Publishing the document in itsentirety will allow the complete code to

be found in one location, in a unifiedform for easy access.

(2) Metric Units of Measurement

The proposed rule is stated only inEnglish units of measurement. Onecommenter stated that the rule shouldreference metric as well as Englishunits. (New Space Working Group, No.

14; 3)The Department agrees with this

comment. Executive Order 12770,Metric Usage in Federal GovernmentPrograms, 56 FR 35801 (July 25, 1991),directs executive branch departmentsand agencies of the United StatesGovernment to take all appropriatemeasures to implement the metricsystem of measurement as the preferredsystem of weights and measures forUnited States trade and commerce.Therefore, in order to take a first steptowards implementing this ExecutiveOrder, DOE has provided a soft metric

conversion for the applicable tablesthroughout the final rule in order toincrease understanding of the metricsystem and to support and encourage itsuse. The Department is alsoparticipating in the metric conversion ofcalculations, algorithms, formulas, andtables for the proposed revisions to theupdated Standard 90.11989. All tableshave not yet been converted, but the90.1 Committee is working to reachconsensus on a hard metric conversionfor the entire updated Standard 90.11989. When this is complete, theDepartment will consider proposinginclusion in the Federal Code.

B. Section-by-Section Comments

(1) Compliance, Subpart A, Section 102

The Department received publiccomment on the application of Section434.102 , Compliance, to certainsubparts within the rule. Section434.102, requires that when thealternative requirements of subparts Eand F are used to design and construct

buildings, such designs shall becertified by a registered architect orengineer. This requirement does notapply to subpart D. One commenter

stated that there should be a provisionrequiring certification by a registeredarchitect or engineer for buildings thatare designed and constructed to meetthe prescriptive specifications ofsubpart D (New Space Working Group,No. 14; 3). This certificationrequirement is included in subparts Eand F, and in equivalent parts ofStandard 90.11989, and the subsequentcodified version of the standard,

because these latter subparts require acomparative energy analysis of theproposed design to a prototype or



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reference building. DOE believes thatsuch an analysis requires the services ofa registered architect or engineer. To thecontrary, subpart D requires no suchanalysis. Subpart D is composed of a setof prescriptive and componentperformance requirements, most ofwhich are straight forward. Suchdesigns can be readily checked by a

code inspector or, by the responsiblefacility manager.

The Department continues to believethat it is inappropriate to establish a

blanket requirement for certification byan architect or engineer for all buildingsutilizing the prescriptive requirementsof subpart D. In most cases, compliancecan be readily determined without thiscertification. ECPA Section 306(a)explicitly directs the head of eachFederal agency to adopt proceduresnecessary to assure that their buildingsmeet or exceed the rule adopted today.The Department recommends that

agencies consider establishing aprocedure for certification by aregistered architect or engineer in thosecases where compliance with subpart Dcannot be readily established.

(2) Default Values for UnlabeledFenestration Products, Subpart D,Section 402

One commenter requested that thisrule follow the lead of the MEC andfully and explicitly incorporate all ofthe standard National FenestrationRating Council (NFRC) procedures. Thecommenter provided suggested text thatwould replace sections 402.1.1.1 and

402.1.2.4, requiring that U-values, SolarHeat Gain Coefficients (SHGC) andVisible Light Transmittance (VLT)would be determined in accordancewith the applicable NFRC procedures byindependent labs, and be certified andlabeled by manufacturers. (AndersonWindows, No. 5; 12) This suggestedchange would include eliminating theuse of shading coefficients, as well asadding to the testing and certificationprocedures required by the proposedrule.

At present, the explicit use of NFRCprocedures is permissible only for those

fenestration products that are designed,constructed, and tested in a qualitycontrolled environment such as amanufacturing plant and/or warehouse.In commercial construction, fenestrationunits and skylights that are site-built

because of size, weight, and transportingdifficulties (i.e. mall atriums), are notcovered by NFRC procedures andcannot be certified or properly labeledunder these guidelines. The NFRC testprocedures are specifically for off-the-shelf fenestration products, and do notappropriately cover site-built products.

Because site-built fenestration unitscan represent a significant portion of thewindow and skylight requirements fornew Federal commercial buildings, theDepartment has retained the language ofsections 402.1.1.1 and 402.1.2.4 in thefinal rule. The Department is workingwith the NFRC to develop guidelinesthat will adequately cover all

fenestration products that are site-builtas well as pre-manufactured.

(3) Solar Heat Gain and ShadingCoefficients, Subpart D, Section 201 and402

In the proposed rule, the Departmentuses Shading Coefficient (SC) in theAlternate Component Package Tables(ACP). Two commenters suggested thatthe Department adopt the alternativeSolar Heat Gain Coefficient in place ofthe SC because it provides a moreaccurate representation of the passivesolar heat gain properties of fenestrationproducts, than do SC values. (AndersonWindows, No. 5; 1; Pella Corporation,No. 3; 1).

The Department agrees that the SHGCis a more accurate measure of solar heatgain and, therefore, encourages its use.The SHGC is the proportion of solarradiation striking a unit of glazing orfenestration (such as a window) thatenters the space through the unit. Thisheat gain represents both the heat gaintransmitted directly into the space andthat absorbed by the unit and re-emitted, reradiated, conducted, orconvected into the space. The solar heatgain coefficient may be measured with

the radiation striking the unit normal(perpendicular) to it or striking it at anangle (general at 40, 50, 60 or 70degrees).

In contrast, the SC is a calculated (nottested) multiplier that was created toadjust the solar heat gain values forclear glass (which has wellcharacterized properties) to a value fortinted glass. It works well for singlepane and tinted glass with heat andlight transmittance paths the same asthose of single pane clear glass.However, it has been found to giveincorrect results in two significant

cases: (1) when the path along whichheat and light are transmitted throughthe actual glazing differs substantiallyfrom that of the referenced glazing (asfor multi-pane glazing when solarradiance strikes it at above 60 degrees);and (2) when the solar gain is primarily(more than 60 percent) due toabsorption and the wind speed is notclose to the speed at which the SC wasdetermined (7.5 mph). These limitationscan seriously affect the accuracy ofcalculated building peak heat loads. TheSC can overpredict the solar heat gain

through a window at a given hour by asmuch as 35 percent.

The Department will continue toallow the use of SC values because theyare still being used in simplified energyanalysis programs and by some windowand glazing manufacturers as thefenestration industry converts to SHGCvalues. However, SHGC values have

been added to all applicable tables inthis final rule. Furthermore, thedefinition of SC has been modified foraccuracy and a definition of SHGC has

been added to section 201,Definitions of the final rule. Thereferences to NFRC10091, whichcontains manufacturer spectral data,and NFRC200, which establishes theequations and procedures for using thisdata to calculate SHGCs, have beenadded to the reference standard sectionof this final rule.

(4) Interior Lighting Power AllowancesSubpart D, Section 401

One commenter took the position thatthe particular values in the proposedrule for the interior lighting powerallowances for whole-buildingcategories are not stringent enough andthat all of the lighting values should bereconsidered or reassessed. No specificrecommended lighting values wereprovided. (New Space Working Group,No. 14; 2).

As noted in the preamble to theproposed rule, the Unit Power Density(UPD) values (W per ft 2) included in therule are based on a detailed analysis ofthe technical and economic

performance of the 1993 UPD valuesfound in the interim rule. These 1993values are substantively more efficientthan the values in Standard 90.11989.The Department found that in 25 spacetypes, the Standard 90.11989 UPDvalue is the most appropriate one forthis rule. For 40 space types, a value ator below the 1993 interim UPD valuewas found to be economically justifiedand technologically feasible, and thesemore energy efficient values areincluded in todays final rule. In theremaining space types, the UPD valueincorporated in todays rule falls

between the 1989 and 1993 values, orthere was no difference in the twovalues.

Therefore, in every case the lightingprovisions in this rule meets or exceedsthe energy efficiency of the provisionscontained in Standard 90.11989. Theseprovisions reflect the results of thedemonstration phase of the 1993 interimlighting numbers. These values reflect agoal of progressive energy-conservingpractice without prohibiting the designof quality lighting in interiorenvironments. Details of this analysis



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are found in the Technical SupportDocument (TSD).

The Department is aware that lightingtechnologies and design strategies areevolving rapidly. As the technical andeconomic justification for new UPDvalues are established, the Departmentwill further update the code provisionsfor Federal buildings concerning

lighting requirements. In addition, theDepartment through its Federal EnergyManagement Program is promotinghighly efficient lighting design strategiesfor Federal buildings.

(5) Task Lighting Footnote, Subpart D,Section 401

One commenter recommended addinga footnote to one of the Building SpaceActivities entitled Offices, in Table401.3.2a. It was suggested that thisfootnote state include task lighting.(New Space Working Group, No 14; 2).No further elabortation was offered by

this commenter.Task lighting is not included in the

calculation of interior lighting powerallowances for office space. Tasklighting is generally brought to the

building after construction iscompleted. It is plugged into wall andfloor outlets and is usually not hardwired into the buildings electricalsystem. It is regularly changed withoutcode approval or the assistance of anelectrician. It is, therefore, almostimpossible to regulate through buildingscodes. The Department, therefore, willnot add a footnote concerning task

lighting to the final rule.(6) Ventilation Requirements forEnclosed Parking Garages, Subpart D,Section 403

Section 403.2.4.2 entitledVentilation Controls for EnclosedParking Garages, requires automaticcontrol of fans that stage or modulate airvolume as required to maintain carbonmonoxide at or below the levelssuggested in ASHRAE 621989. Onecommenter suggests that in addition tocarbon monoxide control requirements,there should also be a requirement for

automatic ventilation controls fornitrogen dioxide levels that exceed 5parts per million where diesel-poweredvehicles will be operated, parked and/or serviced in a building. (VirginiaElectric and Power Co. (Vepco), No. 10;12, 4). The commenters proposedthreshold exposure level is the same asthe Occupational Safety and HealthAdministrations (OSHAs) regulatorystandard codified at 29 CFR 1910.1000,subpart Z. Subpart Z sets forth theOSHA Permissible Exposure Levels(PELs). Table Z1 contains limits for air

contaminants, including nitrogendioxide.

The OSHA Standard (29 CFR1910.1000, subpart Z) is the applicableregulation for nitrogen dioxide exposurelimits, and implicitly ventilation must

be designed so that the exposure ofnitrogen dioxide is no greater than 5parts per million. If exposure levels of

nitrogen dioxide exceed this permissibleexposure limit, the OSHA standard, 29CFR 1910.1000 (e) requires theemployer to reduce exposurespreferably using engineering controls(ventilation measures).

The commenter did not recommendparticular ventilation controls orprovide a basis for DOE prescribingsuch controls. Moreover, this subjectwas not discussed in DOEs Notice ofProposed Rulemaking. At this time, theDepartment has no basis to establish arequirement for nitrogen dioxideventilation controls.

(7) Thermal Efficiency Requirements forFurnaces and Boilers, Subpart D,Section 403

Three commenters submitted remarkspertaining to the inclusion in Tables403.1e, 403.1f and 404.1 of minimumefficiency requirements for furnaces and

boilers operating at minimum capacity(Gas Appliance ManufacturersAssociation (GAMA), No. 8; 12;American Gas Association (AGA), No. 4;45; Columbia Gas, No. 9; 3). Onecommenter objects to DOEs inclusionin this rule of minimum efficiency

requirements for furnaces and boilersoperating at minimum capacity andbelieves that the requirements in thisrule should be identical to the standardsfor these products contained in theEnergy Policy and Conservation Act(EPCA), as amended by EPACT. Thecommenter takes this position based ongeneral language in the Preamble to theproposed rule that the provisions oftodays proposed rule (based on thecodified version of Standard 90.1)would be similar to those being adopted

by State and local jurisdictions andwidely used in the private sector. (61

FR 40883, August 6, 1996) Thecommenter argues that if DOE wantsthe Proposed Rule to be consistent with,or serve as a model for, updated State

building codes, DOE should rememberthat State and local building codes mustabide by the Federal preemptionprovisions of NAECA and EPACT.(GAMA, No. 8; 12) It argues that Statescannot adopt requirements for theoperation of furnaces and boilers atminimum capacity and, therefore, ifconsistency is a goal, the FederalGovernment should delete these

minimum capacity requirements fromits rule.

In addition, two other commenterstook the position that DOE must reviewthe minimum efficiency requirements inTables 403.1e, 403.1f and 404 to assesswhether or not they are cost effective,rather than rely upon their inclusion inASHRAE 90.11989 as the basis for

incorporation in the present rule. (AGA,No. 4; 45; Columbia Gas, No. 9; 3)

Concerning another subject, unitheaters and duct furnaces, both non-EPACT covered products, onecommenter stated that the Departmentshould delete the minimum capacityefficiency requirements from theproposed rule for this equipment

because the requirements maydiscourage manufacturers from offeringproducts that have more potentialenergy savings, such as products withmodulating controls or two-stageoperation. (GAMA, No. 8; 2)

The legislative requirements for thisrule are contained in section 305 ofECPA, as amended, which clearly statesthat the rule for energy efficiencystandards for new Federal buildingsmust meet or exceed ASHRAE Standard90.11989. Section 305 of ECPA doesnot state that Federal building standardscan be no more energy efficient than theprovisions of section 342 of EPCA, orany other Federal minimum energyrequirement. Nor does section 305mention that the Federal requirementsshould be similar or identical to Stateand local building codes. Section 305simply establishes that the new

standards meet, at a minimum, therequirements of Standard 90.11989,thus establishing ASHRAE 90.11989 asthe statutory baseline or minimumstandard level. ASHRAE 90.11989contains both minimum and maximumoperating capacity efficiencies forfurnaces and boilers. The minimum andmaximum operating capacityefficiencies in this rule are identical tothose found in Standard 90.11989.Accordingly, this rule meets thelegislative requirements.

The Departments discussion in thePreamble concerning consistency

between the proposed rule andindustry-wide practices addressedgenerally the format and provisions ofthe proposed rule. It acknowledges that,in general, consistency with industry-wide practices would facilitateimplementation by Federal agencies ofthe final rule. Consequently, theDepartment is adopting verbatimsignificant portions of the codifiedversion of ASHRAE Standard 90.11989and the format of the codified version.(61 FR 40884, August 6, 1996) TheDepartments statements, however, do



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not lead to the conclusion that theDepartment intends that Federalstandards be identical in every respectto requirements adopted by the States orthose used in the private sector.

As previously noted, this commentersuggests that the Department shouldadopt the same minimum efficiencystandards for specified categories of

furnaces and boilers with respect totheir energy use at maximum ratedcapacity as provided for in section 342of EPCA, as amended by section 122 ofEPACT, Energy ConservationRequirements for Certain Commercialand Industrial Equipment. These latterrequirements specifically apply tomanufacturers of such equipment.While the minimum efficiencyrequirements in section 342 restrict thetypes of equipment available in themarket place, they do not purport tolimit the ability of the FederalGovernment to establish additional

requirements for equipment purchasedfor new Federal buildings. Furthermore,because the requirements of this finalrule are for newly constructed Federalcommercial and high-rise residential

buildings only, they do not affect oralter the requirements of section 342 ofEPCA pertaining to the manufacture ofcertain furnaces and boilers.

The Department also believes that theadoption of efficiency requirements forminimum operating capacities intodays rule represents sound policy.This rule addresses the purchase ofequipment by Federal agencies, andtakes into account the expected

applications of this equipment inFederal facilities. Due to variations inweather, occupancy, and comfortrequirements, these types of equipmentare not generally operated at maximumcapacity in Federal facilities. Byestablishing minimum performancerequirements at both minimum andmaximum operating capacity, this ruletakes into account the full range ofoperating conditions expected inFederal facilities. These minimumefficiency levels at minimum capacitypromote energy savings and cutoperating costs for Federal agencies. The

Federal Government has theresponsibility to procure equipment thatbest serves its requirements, whileminimizing the cost to taxpayers. Theinclusion of minimum efficiencyrequirements for furnaces and boilersoperating at minimum capacity in thisrule serves that purpose.

Moreover, the Department hasconsidered and rejected the two above-referenced comments that request DOEto establish the cost-effectiveness of theminimum efficiency requirements inTables 403.1e, 403.1f, and 404, instead

of relying on their inclusion in Standard90.11989 as the basis for incorporationin the final rule. The Department hasdetermined that a cost analysis isunnecessary in light of the fact that theabove-referenced requirements includedin this rule are identical to the statutory

baseline, ASHRAE 90.11989, thusmeeting the minimum required by

statute.Therefore, the Department will retain

the minimum efficiency requirements ofsections 403 and 404 in their entirety inthe final rule. The requirements insections 403 and 404 meet thelegislative requirements of section 305of ECPA, as amended. Moreover, section342 of EPCA, as amended, does notcurtail the legislative mandate of section305.

Lastly, the Department has consideredand rejected the request that it deletethe minimum capacity efficiencyrequirements for unit heaters and ductfurnaces, as suggested by onecommenter. The requirements theDepartment has adopted for thisequipment are identical to those inASHRAE Standard 90.11989. Asdiscussed previously, section 305 ofECPA, as amended, establishesASHRAE Standard 90.11989 as thestatutory baseline or minimum standardlevel. Therefore, by adopting theserequirements, the rule meets thelegislative requirements. Moreover, thecommenter did not provide anyexplanation or information that wouldcause the Department to be concernedthat adopting these requirements would

impact the availability of more efficientequipment, such as products withmodulating controls and two-stageoperation mentioned by the commenter.As a matter of fact, this type ofequipment is already generallyavailable. Accordingly, the Departmentwill retain the minimum capacityefficiency requirements for unit heatersand duct furnaces.

(8) Integrated Part-Load Values forCooling Equipment Efficiency, SubpartD, Section 403

One commenter argues that the

Department cannot use Integrated Part-Load Values (IPLV) ratings for unitaryair conditioners, condensing units,applied heat pumps, and water chillingpackages in its Federal building energycode, arguing that the energy descriptorsfor products cannot be expanded toinclude various other rating conditionsor energy descriptors, i.e. IPLV ratings,due to Federal preemption of Stateregulations. It also argued that Congressspecifically excluded multiple ratingpoints on standards for the manufactureof these products at the request of the

manufacturers. (American RefrigerationInstitute (AGA), No. 15; 12)

Section 342 of EPCA, as amended bysection 122 of EPACT, sets minimumstandards for the manufacture of certainequipment, thereby prohibiting theproduction or import of equipment thatdoes not meet the standards.

Todays final rule governs the design

and construction of new Federalbuildings, not the manufacture ofequipment. This rule implementssection 305 of ECPA as amended, whichrequires the establishment of Federalenergy efficiency standards for thedesign and construction of new Federal

buildings. Section 305 directs Federalagencies to meet or exceed ASHRAEStandard 90.11989 in developing itsstandards. This rule includes the samepart-load values found in ASHRAEStandard 90.11989, thereby meetingthe legislative requirements of Section305 of ECPA, as amended.

DOE rejects the argument that theFederal rule cannot contain part-loadcriteria due to Federal preemption. Thepreemption provision in section 345 ofEPCA, as amended, does not apply tothe procurement of equipment used innew Federal buildings. The FederalGovernment is, therefore, not mandatedto delete the part-load minimumrequirements from its standard by virtueof the preemption provision.

Finally, Federal agencies fund boththe building and operation of theirfacilities. As such, they have asignificant interest in both the first costand operating costs of building

equipment. Motorized equipment inbuildings run at part-load for themajority of their use and operation. Forexample, cooling equipment is rarelyoperated at a maximum load value inthe spring, winter, and fall, or at night.Integrated part-load value criteria in

building energy codes limits theinefficiency of equipment at part-loadconditions. These criteria have been aformal part of this requirement forFederal buildings since January 1989(10 CFR part 435) and have helpedFederal agencies operate their buildingsmore efficiently and at less cost. These

requirements improve the energyefficiency of Federal buildings.Accordingly, the Department will

retain integrated part-load value criteriaas part of its final rule.

(9) Two-Tiered Code, Subpart D, Section403

One commenter suggested that a two-tier approach to selecting energyefficient HVAC equipment, similar tothat originally proposed for the updatedversion of ASHRAE 90.11989, beadded to the final rule (New Space



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Working Group, No.14; 2). TheDepartment recognizes that there areproducts on the market that have moreefficient ratings than will be required bythis final rule. This rule establishesminimum efficiency levels for HVACequipment included in new Federal

buildings.Executive Order 12902, Energy

Efficiency and Water Conservation atFederal Facilities, further directsagencies to purchase equipment that isin the upper 25 percent of energyefficiency for all similar products or atleast 10 percent more efficient than theminimum level that meets Federalstandards, if they are cost-effective andto the extent practicable (Section507(a)(2)). In practice, Executive Order12902 creates a second tier of efficiencylevels for equipment purchased byFederal agencies. Therefore, theDepartment will not add a second tierof requirements to this rule.

(10) Equipment Absorption CoolingRequirements, Subpart D, Section 403

In the proposed rule, Table 403.1ccontains absorption cooling minimumefficiency requirements. Onecommenter agrees that these efficiencyrequirements should be included in therule, but argues they should beincreased to reflect average fleetefficiencies. (Vepco, No. 10; 2,4).

An increase in the required minimumefficiency of these products wouldrequire an economic analysis indicatingthe cost-effectiveness of the higher

standard to the Federal Government.While increased efficiencies might wellbe cost-effective, a reliable testing andrating procedure is required. Thecurrent rating method, RS30, has beencontroversial and can lead to inaccurateresults. The Department is working withindustry to develop a rating method thatwould provide a reliable and verifiablemeasure of the energy performance ofthis equipment. The development ofthis method would allow theDepartment to determine the most cost-effective level of efficiency for thisequipment.

The Department will retain therequirements in Table 403.1c for theabsorption cooling minimum efficiencyrequirements.

(11) Heat Pump Supplementary HeatOperation, Subpart D, Section 403

Two commenters proposed deletingthe Section 403.2.6.4 requirement thatwould prevent supplementary heatoperation, when the heat pump alone iscapable of handling the heating load(Edison Electric Institute (EEI), No. 11;34, Vepco, No. 10; 3). The

supplementary heat is usually electricresistance heat.

This requirement is included inStandard 90.11989 and has been ineffect in 10 CFR part 435 since 1989.Under this provision, the supplementalheater operation is allowed duringoutdoor coil defrost cycles that do notexceed a running interval of fifteen

minutes. Therefore, heat pumps withsupplementary resistance heaters musthave controls that prevent auxiliaryheater operation when the heating loadcan be met by the heat pump alone.Contrary to the contention that thisprovision bans a class of products fromthe marketplace, the rule specifiesperformance requirements for thesesystems when purchased for use in newFederal buildings. If Section 403.2.6.4were removed it would prevent the finalrule from meeting the minimumrequirements of Standard 90.11989, asrequired by EPACT. The Department

will keep this provision in the final rule.(12) Combined Water and SpaceHeating, Subpart D, Section 404

The proposed rule would allow use ofa combination water and space heatingunit when the energy input and thestorage volume of the combination unitis less than twice the energy input orstorage volumes of the smaller of theseparate boilers or water heaters, or theinput to the combined boiler is less than150,000 Btu/h. Three commentersproposed that the limitation oncombined water and space heatingequipment, section 404.6, be deleted

(Viessmann, No. 1; 12; AGA, No. 4; 4;Columbia Gas, No.9; 3). One of thesecommenters argued that this provisionis not necessary and should be deletedto avoid confusion (Columbia Gas, No.9; 3). Another believes that section404.1 and section 404.6 appear to beworking at cross purposes, the firstsetting requirements for combined waterand space heating systems, while thelatter restricts their use with exceptions(AGA, No. 4; 4). The third believes thatthe dual requirements opens a loopholeleading to a reduction in fuel efficiency

because boilers and water heaters are

tested under quite different conditions.A water heaters thermal efficiencystarting with cold water is far easier toattain than is a boilers steady statecombustion efficiency which raiseswater temperature over a limited, higherrange.(Viessmann, No. 1; 12). Finally,it was argued that, due to the lowerprice of water heaters relative to boilers,economic pressures will favor the lessefficient equipment. It was stated that ifa water heater that meets the minimumrequirements of section 404.1 is used tosupplant a boiler meeting the

requirements of Table 403.1(f), thenenergy consumption will rise(78%Et


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3). The same commenter also arguedthat the Legionella Pneumophilaorganism was capable of colonizing inhot water systems at 115 degrees F, andcould even reproduce at 110 degrees F.(PMI, No. 12; 3)

The Department does not accept thesuggestion to revise the outlettemperature to 120 degrees F. As stated

in the 1995 ASHRAE ApplicationsHandbook (RS47, pp. 4412), theLegionella bacteria are killed attemperatures above 140 degrees F.Therefore, the commenters suggestionwould not improve water conditions asthey recommend.

But more importantly, the maximumoutlet temperature for lavatories isspecified at 110 degrees F in Standard90.11989. Section 305 of ECPArequires the Department to meet orexceed the energy savings of thatstandard. Therefore, the Departmentwill not raise the lavatory outlettemperature from 110 to 120 degrees F

because that would result in greaterenergy use than Standard 90.11989.

With regard to the health and safetyaspects of lavatory outlet temperatures,the 1995 ASHRAE ApplicationsHandbook (RS47, pp. 4413) indicatesthat revising the temperatures to 120degrees F would not kill Legionella

bacteria. The Department is concernedhowever, that a temperature of 120degrees F could scald users.

(14) Shower Heads and LavatoryFaucets, Subpart D, Section 404

Section 404.4, Water Conservation,

provides that shower heads and lavatoryfaucets meet the requirements of 10 CFR430.32. One commenter suggestedaligning the water conservation section(Standard 404.4) with establishedconsensus standards flow raterequirements already established by theAmerican Society of MechanicalEngineers/American National StandardsInstitute (ASME/ANSI). It also suggestedthat rather than basing the criteria onwhether the water system wascirculating or noncirculating, it be basedon whether a metering valve is used.Finally it was suggested that the criteria

not restrict the use of hot water only.(PMI, No. 12; 3).The Department published a final rule

entitled Energy Conservation Programfor Consumer Products: Test Proceduresand Certification and EnforcementRequirements for Plumbing Products;and Certification and EnforcementRequirements for ResidentialAppliances, 63 FR 13308 (March 18,1998) (codified at 10 CFR Part 430). Thisrule codified the water conservationstandards established in EPCA forshowerheads, water closets and urinals.

It also incorporated by reference theASME/ANSI standards for theseproducts which are identical to thestatutory standards. For lavatory faucets,the Department incorporated byreference the revised ASME/ASNIfaucet standard A112.181M1996 whichestablished a maximum flow rate of 2.2gpm. For metering faucets, the rule also

established a maximum flow rate of 0.25gallons per cycle regardless of whetherthey are used in circulating ornoncirculating systems and with hot orcold water.

The Department has changed thelanguage of todays rule to clarify theappropriate water conservation standardthat applies to showerheads andlavatory faucets, namely, 10 CFR 430.32.Moreover, since 10 CFR part 430incorporates by reference theappropriate ASME/ANSI standards,DOE has aligned its rule with consensusstandards flow rate/metering

requirements as requested by thecommenter. This language change intodays final rule conforms this rule toexisting Federal requirements. Sincethis change addresses flow raterequirements for both hot and coldwater, it effectively incorporates thecommenters suggestion to address bothhot and cold water usage.

(15) Equipment for Prototype orReference Buildings, Subpart E, Section518

In the proposed rule, subpart Econtains a building energy costcompliance alternative wherein the

proposed design is compared to either aprototype building if the design is oneof nine recognized building types, or areference building if the building designis particularly unique. Subpart E, 518.2, requires that a prototype orreference building use either an electricheat pump or natural gas for servicewater heating, unless electric resistanceis preferable to the heat pump waterheater (HPWH), pursuant to the criteriaof section 404. One commenter pointedout that section 404 contained no suchcriteria and suggested that the final ruleshould include criteria for determining

when electric resistance service waterheating is preferable to an HPWH.(Vepco, No. 10; 3)

The Department agrees with thecommenter that section 404 does not listthe criteria that would allow thedesigner to determine if it is preferableto use electric resistance over theHPWH.

Standard 90.11989, Section 11.5.5,Additional Equipment EfficiencyMeasures, requires the designer toperform an economic analysis thatcompares the potential benefits of using

one system type over the other. Theresults of the comparison allow for thedetermination of the more cost-effectivesystem. This latter provision wasomitted from the codified version ofStandard 90.11989 (Section 404).Since, by statute, this rule uses Standard90.11989 as the minimum baseline, theDepartment has added the language

from Section 11.5.5 of Standard 90.11989 into the final rule so that usershave the method to determine if it ispreferable to use electric resistance overthe HPWH.

(16) Determination of Energy CostBudget (ECB), Subpart E, Section 501

Under subpart E, a building is incompliance with the rule if its annualenergy costs or Energy Cost Budget(ECB) is equal to or less than what itwould have been if built under subpartD. Subpart E compliance has two steps.Step one determines the ECB, assumingthe equipment and energy types thatwould produce either (a) the lowestannual energy costs or (b) the lowestlifecycle costs if the building were builtunder subpart D. Fuel types are notactually chosen in this step. In step two,any desired building and equipmenttrade-offs are made, so long as theoverall ECB does not exceed the levelset in step one. These trade-offs caninclude changes in equipment and fueltype.

Subpart E is designed to ensure thatbuildings built under this subpart donot use more energy than would have

been allowed under subpart D. Because

different energy types are measured indifferent units, a common unit ofmeasure is needed for ensuring thattrade-offs do not result in increasedenergy usage. Subpart E uses energycosts as its common measure of energyusage.

Two commenters suggest that subpartE be revised to reflect greater reliance on

building life cycle costs. (Vepco, No. 10;1; EEI, No. 11; 23). One commenter(Vepco) proposes allowing only the useof life cycle costs, and not also annualenergy costs, in the step onedetermination of the ECB. The other

commenter (EEI) proposes using lifecycle costs, rather than the ECB, as thebasis for determining compliance withsubpart E overall.

The Department agrees that life cyclecost is an essential component in thedevelopment and implementation of

building codes. Life cycle cost analysiswas used in the development of thisrule. Moreover, Executive Order 12902requires the use of life cycle costanalysis in making federal buildingenergy choices. Subpart E, drawn fromStandard 90.11989, explicitly provides



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for life cycle cost analysis in step one.Life cycle cost analysis can and should

be used in making tradeoffs under steptwo. Indeed, the primary purpose ofallowing trade-offs is to provideopportunities to utilize more cost-effective means of improving energyefficiency.

Although life cycle cost analysis

could be the basis for determining theECB in step one, removal of the energycost approach would remove the moststringent option found in subpart E ofStandard 90.11989. Therefore, lifecycle cost analysis cannot be the basisfor determining subpart E compliancewith the energy requirements of the rulesince this method does not ensure thatenergy usage under this subpart wouldnot exceed that allowed in subpart D.Based on these considerations, theDepartment is retaining the energy cost

budget (ECB) components of thissubpart.

(17) Conversion Factors for Electricity,Subpart F, Section 601, 602

As is the case with subpart E,compliance with subpart F, the BuildingEnergy Compliance Alternative, is atwo-step process, although thecomponents of each step are somewhatdifferent. In step one of subpart F, lifecycle cost analysis is used to select theenergy sources and equipment types to

be used in the building. The Energy UseBudget (EUB) is developed based on theamount of energy these energy sourcesand equipment types would require ifthe building were built according to

subpart D requirements. In step two, anydesired trade-offs are made so long as (a)the EUB is not exceeded and (b) theenergy types utilized are not changed.The common unit of measure in makingEUB trade-offs is the British thermalunit (Btu) content at the building site.

Two commenters suggested that theconversion factors used in this subparttake off-site energy losses into accountand recommended a factor of 11,600Btus per kWh for electricity, rather thanthe 3,412 Btu/kWh provided for inTable 602.2. These commenters supportthe source-based method as indicating

the total amount of energy consumed inorder to provide for the buildingsenergy needs and to encourageenvironmentally preferable buildingchoices. (AGA, No. 4; 1, 5; ColumbiaGas, No. 9; 2). One commenterrequested a study to determine theenvironmental impacts of the section602 conversion factors (AGA, No. 4; 13).

The Department agrees that source-based conversion factors are generallymore accurate in reflecting energyconservation potential. However, the

limited provision in step two utilizingsite-based conversion factors can havelittle or no discernable impact on thetypes of energy used since that choiceis already made in step one. Theconversion factor chosen can only havea limited impact on trade-offs involvinginteractions among subsystemsemploying different energy sources. The

Subpart D equipment efficiency levelsare already set at federal minimumstandards. As a result, tradeoffsgenerally cannot be made amongdifferent types of equipment.

The Department recognizes that sitefuel conversion factors are widely used

by architects, engineers, and builders inheat flow and other calculations. Giventhis standard approach, and the limitedpotential impact of selecting site ratherthan source energy as the basis forconversion, the Department has retainedthe conversion factors set forth in Table602.2.

C. Other Changes

DOE has made other changes to theproposed rule. It has added to 434.201the definition of building set forth in 42U.S.C. 6832. This definition wasinadvertently omitted in the proposedrule.

In addition, DOE has deleted section101.2 and reworded section 101 toclarify the extent to which additionsand renovations are covered by this ruleconsistent with the statutory provisionsof section 305 of ECPA, as amended.Non-substantive changes, such as therenumbering of paragraphs,

typographical errors, and minorlanguage changes are not discussed.

III. Consultation

In developing todays rule, theDepartment consulted with outsideparties, including State and local codeofficials, private sector representatives,and other Federal agencies, as required

by section 305(a)(1) of ECPA.

IV. Energy Impacts

This rule applies only to the energyefficiency of new construction forFederal buildings, representing about 2

percent of all new commercial buildingconstruction. New Federal constructionwill constitute less than 1/2 of onepercent of the total commercial buildingstock in 2010. Furthermore, this ruleapplies only to that portion of buildingenergy use related to heating, cooling,ventilation, water heating, and lighting,or about 60% of the energy used incommercial buildings, or roughly 0.3%of expected commercial buildingsenergy use in 2010.

This rule saves about 5% of energyusage compared to Standard 90.11989

at the time EPACT was adopted. Thisadditional energy savings is consistentwith the legislative requirement thatenergy savings in the rule betechnologically feasible andeconomically justified. In addition, itreflects the requirement that DOEconsider, in consultation with theEnvironmental Protection Agency and

other Federal agencies, measuresconcerning indoor air pollutants and,where appropriate, adopt suchmeasures. (Section 305(a)(2)(C).)

The additional 5% energy savingsderives from the inclusion of addenda c,regarding motors, and the inclusion oflighting specifications that are notincluded in either Standard 90.11989or any of its addenda. The Departmentestimates that Addendum c, addressingmotor efficiency, provides 0.24 percentreduction in building energy use. Thissame reduction will be realizednationwide as the electric motor

standards of section 342(b) of the EPCA,as amended, take effect. Also, theDepartment has determined that thelighting standards contained in the finalrule will reduce total building energyuse by about 4.7 percent compared tothe statutory baseline. Finally, theDepartment has determined that otherchanges from the statutory baseline haveno discernible impact on energy use.These other changes include ASHRAEaddenda g, i, and f, previouslydiscussed.

This rule retains the ventilationrequirements of Standard 90.11989intended to ensure adequate indoor air

quality. The ventilation requirementsfound in Standard 90.11989 are thesame as those found in ASHRAEStandard 621989 and reflect currentindustry practice. Ventilationrequirements increase building energyuse, both because energy is needed tooperate the ventilation fans and otherequipment, and because someadditional heating and air conditioningis required for replacement air.Although removing these requirementscould save energy in Federal buildings,it would not be consistent with currentpractices regarding protection of indoor

air quality, nor would it be consistentwith the legislative requirements insection 305 of ECPA.

Even though the final rule is morestringent that the statutory baseline, twocomponents of the final rule technicallyincrease allowed energy usagecompared to the interim rule.

First, several lighting provisionsfound in the interim rule proved not to

be technologically feasible. Second, theinterim rule was never updated toinclude the indoor air qualityventilation requirements of ASHRAE



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Standard 621989. As a result, theseaspects of the interim rule would nothave met the legislative requirementsfor this final rule. Technically, thesetwo changes from the interim rule allowabout 10 to 15 percent more buildingenergy use, largely due to the change inventilation requirements. In practice,however, these changes from the interim

rule are not likely to have a significanteffect on Federal building energy use.The non-technologically feasiblelighting specifications found in theinterim rule have proven difficult orimpossible to implement. In addition,most Federal buildings are already being

built to meet ASHRAE Standard 621989 ventilation requirements .

The energy estimates reported hereare based on the minimumspecifications found in subpart D of thefinal rule. Additional cost-effectiveenergy efficiency improvements in newFederal commercial buildings are

facilitated by this rule through use ofSubparts E and F, the alternative pathswhich provide a means of documentingthe energy savings and cost-effectiveness of more energy efficient

building designs. Federal agencies maychoose to adopt building energyrequirements that exceed thosecontained in this rule. The final rule isspecifically designed to operate inconjunction with several existingprograms and policies which facilitateadditional energy savings in Federal

buildings. In essence, this rule providesa floor or a minimum level of energy

savings for new Federal buildings.Section 306(a) of Executive Order 12902(59 FR 11463, March 8, 1994),Executive Order on Energy Efficiencyand Water Conservation at FederalFacilities, specifically requires that,Each agency involved in theconstruction of a new facility * * *shall: (1) Design and construct suchfacility to minimize the life cycle cost ofthe facility by utilizing energyefficiency, water conservation, or solaror other renewable energytechnologies. It also requires agenciesto ensure that the design and

construction of facilities meet or exceedthe energy performance standardsapplicable to Federal residential orcommercial buildings as set forth in 10CFR part 435, local building standards,or a Btu-per-gross square-foot ceiling* * * whichever will result in a lowerlife cycle cost over the life of thefacilities. Section 306(a)(2). Finally,this Executive Order directs agencies topurchase equipment for buildings thatare in the upper 25 percent of energyefficiency for all similar products or atleast 10 percent more efficient than the

minimum level that meets Federalstandards if they are cost-effective andto the extent practicable. Section507(a)(2). Furthermore, 10 CFR part 436allows agencies to determine when evengreater energy savings would be costeffective. Programs within theDepartments Office of Codes andStandards (OCS) and the Federal Energy

Management Program (FEMP) provideagencies with assistance in utilizing life-cycle cost analysis and in identifyingand procuring energy efficient shell andequipment options for Federal

buildings.

V. Technological Feasibility andEconomic Justification

The standards issued today aretechnologically feasible and costeffective to the Federal Government asrequired by section 305(a)(1) of ECPA.Those provisions included in thestatutory baseline have been part of

recommended professional practicesince at least October 1992. Addendaapproved or issued by ASHRAE andIESNA since EPACT was enacted(Addenda 90.1c, f, g, and i addressingmotors, fenestration, metal framing inthe building envelope, and heating andcooling equipment test procedures,respectively) are addressed specificallyto explain their technological feasibilityand cost effectiveness.

Addendum 90.1c, regarding motors,was developed in cooperation with theNational Electrical ManufacturersAssociation (NEMA) and is based on its

standards. Motors covered by thiscriteria are currently being activelymarketed by manufacturers andregularly incorporated as cost effectiveretrofit measures in utility demand sidemanagement programs. See theTechnical Support Document, page 3.Section 342(b) of EPCA, 42 U.S.C.6313(b), specifies motor efficiencyrequirements that are equivalent tothose in Addendum 90.1c. Theserequirements became mandatory forequipment manufactured after October1997. Discussions with manufacturersled the Department to believe that theseproducts will be cost effective for allnew Federal buildings at the time thisrule becomes effective.

Addendum 90.1f modifies the methodof calculating the thermal transmittanceof fenestration assemblies based on theupdated procedures given in the 1989ASHRAE Fundamentals Handbook fordetermining fenestration thermalperformance. The Department believesthat use of the U-values specified in thefinal rule based on Addendum 90.1fwould not change the types of windowsfrom those required to meet Standard

90.11989. See the Technical SupportDocument, pages 1011.

Addendum 90.1g expands Table402.1.2.1b, Parallel Path CorrectionFactors, Metal Framed Walls with Studs16 Gauge or Lighter, to include a largervariety of available types of metal studs,spacing of framing members and cavityinsulation values which are being used

for exterior walls. This was done in lightof recent increased interest in metalstud construction. The final rule onlypermits the use of metal studs if theexterior wall is properly insulated; itdoes not require the use of thistechnology. The Department believesthis technology will be used only incases where the builder finds it is costeffective to do so. See, TechnicalSupport Document, pages 89.

Addendum 90.1i updates the testprocedures for heating and coolingequipment. Their adoption byequipment manufacturers demonstratestheir technological feasibility.Furthermore, since these are establishedtest procedures used by industry, theDepartment believes their inclusion inthe final rule will have no impact oncost. In addition, there is an exceptionprovided for zone control of variable airvolume (VAV) systems. The Department

believes this will not increase energyuse beyond the statutory baseline sinceaddendum e, already allowed thispractice and was adopted prior toOctober 24, 1992. See the TechnicalSupport Document, pages 1214.

This rule adopts 32 lightingspecifications from the 1993 values in

the interim rule that proved to be bothtechnologically feasible andeconomically justified. (See TSD). Foran additional 8 space types, the TSDanalysis indicated that UPD valueslower than the 1993 values would betechnologically feasible andeconomically justified, and these have

been adopted as well. In 14 cases, theTSD analysis justified values betweenthe 1989 and 1993 levels. Finally, in 25of 79 space types for which there wasa difference between 1989 and 1993values, the TSD analysis resulted in the1989 UPD value being identified as the

most appropriate. In determining thecost-effectiveness of the lightingprovisions, the TSD analysis reflects theestimated cost of electricity to theFederal Government.

VI. Measures Concerning Radon andOther Indoor Air Pollutants

Section 305(a)(2)(C) of ECPA, requiresthe Department to consider, whereappropriate, measures with regard toradon and other indoor air pollutants.The Department has consulted with theEnvironmental Protection Agency and



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determined that there are no radonstandards applicable to the types of

buildings covered by this final rule.Ventilation is the only change from

the interim rule that has an effect onindoor air quality and thus, onhabitability. The final rule, through itsinclusion of Addendum 90.1e, adoptsthe minimum ventilation rates specified

by ASHRAE Standard 621989, entitledVentilation for Acceptable Indoor AirQuality, effectively increasingventilation in new Federal buildings.Improving building ventilationconditions by adjustments tomechanical systems is widely used as ageneric mitigation practice for indoor airquality problems. It is widely assumedthat such adjustments increaseventilation rates and as a consequencedecrease contaminant concentrations,reduce dissatisfaction with air qualityand reduce symptom prevalence. Arange of experimental and

epidemiological studies have beencarried out to evaluate theserelationships. However, these studyresults are in dispute. The Departmentwill continue to monitor this issue andupdate the rule if there is sufficientjustification for a change.

VII. Procedural Determinations

A. Review Under Executive Order13132, Federalism

Executive Order 13132 (64 FR 43255,August 10, 1999) requires agencies todevelop an accountable process toensure meaningful and timely input by

State and local officials in thedevelopment of regulatory policies thathave federalism implications. Policiesthat have federalism implications aredefined in the Executive Order toinclude regulations that havesubstantial direct effects on the States,on the relationship between the nationalgovernment and the States, or on thedistribution of power andresponsibilities among the variouslevels of government. Under ExecutiveOrder 13132, DOE may not issue aregulation that has federalismimplications, that imposes substantial

direct costs, and that is not required bystatute, unless the Federal governmentprovides the funds necessary to pay thedirect compliance costs incurred byState and local governments, or DOEconsults with State and local officialsearly in the process of the developingthe proposed regulation. DOE also maynot issue a regulation that hasfederalism implications and thatpreempts State law unless it consultswith State and local officials early in theprocess of developing the proposedregulation.

DOE has examined todays rule andhas determined that it does not have asubstantial direct effect on the States, onthe relationship between the nationalgovernment and the States, or on thedistribution of power andresponsibilities among the variouslevels of government. No further actionis required by Executive Order 13132.

B. Review Under Executive Order 12988,Civil Justice Reform

With respect to the review of existingregulations and the promulgation ofnew regulations, section 3(a) ofExecutive Order 12988, Civil JusticeReform, 61 FR 4729 (February 7, 1996),imposes on executive agencies thefollowing requirements: (1) Eliminatedrafting errors and ambiguity; (2) writeregulations to minimize litigation; and(3) provide a clear legal standard foraffected conduct rather than a general

standard and promote simplificationand burden reduction. With regard tothe review required by section 3(a),section 3(b) of the Executive Orderspecifically requires that Executiveagencies make every reasonable effort toensure that the regulation: (1) Clearlyspecifies the preemptive effect, if any;(2) clearly specifies any effect onexisting Federal law or regulation; (3)provides a clear legal standard foraffected conduct while promotingsimplification and reducing burdens; (4)specifies the retroactive effect, if any; (5)adequately defines key terms; and (6)

addresses other important issuesaffecting clarity and generaldraftsmanship under any guidelinesissued by the Attorney General. Section3(c) of the Executive Order requiresExecutive agencies to review regulationsin light of applicable standards insection 3(a) and section 3(b) todetermine whether they are met or it isunreasonable to meet one or more ofthem. DOE reviewed todays rule underthe standards of section 3 of theExecutive Order and determined that, tothe extent permitted by law, it meets therequirements of those standards.

C. Review Under Executive Order 12866,Regulatory Planning and Review

This regulatory action has beendetermined to be a significant regulatoryaction under Executive Order 12866,Regulatory Planning and Review, 58FR 51735 (October 4, 1993).Accordingly, the final rule was subjectto review under the Executive Order bythe Office of Information and RegulatoryAffairs (OIRA) and OIRA has completedits review.

D. Review Under the RegulatoryFlexibility Act of 1980

The Regulatory Flexibility Act, 5U.S.C. 601612, requires that an agencyprepare an initial regulatory flexibilityanalysis for any rule, for which ageneral notice of proposed rulemakingis required, that would have a

significant economic effect on smallentities. A final regulatory flexibilityanalysis must be prepared and madeavailable when a final rule is published.These requirements do not apply if theagency certifies that the rule will not,if promulgated, have a significanteconomic impact on a substantialnumber of small entities. (5 U.S.C.605).

In the notice of proposed rulemaking,DOE determined that this rule onlywould impose requirements on theFederal Government for theconstruction of new Federal commercialand multi-family high rise residential

buildings. The rule imposes norequirements on the private sector.Therefore, the Department certified thatthe proposed rule would not, ifpromulgated, have a significanteconomic impact on a substantialnumber of small entities. TheDepartment did not receive anycomments on the certification.

E. Review Under the NationalEnvironmental Policy Act

The Department prepared anEnvironmental Assessment (EA) of the1989 interim standards for Federal

commercial and multi-family high riseresidential buildings. (EnvironmentalAssessment In Support of ProposedInterim Energy Conservation Standardsfor New Commercial and Multi-FamilyHigh Rise Residential Buildings,November 1986, DOE/CE0166). The EAconcluded that the effect of the finalstandards on a buildings habitability aswell as on the outdoor environment, theeconomy and Federal institutions,would be very small. Thus, theenvironmental effects from thestandards for a minimum level of energyefficiency for new Federal commercial

and multi-family high rise residentialbuildings were determined not to be amajor Federal action significantlyaffecting the quality of the humanenvironment, under the meaning of theNational Environmental Policy Act. AFinding of No Significant Impact(FONSI) was published with theproposed rule in 52 FR 17052, 17064(May 6, 1987) and referenced in theinterim rule in 54 FR 4551 (January 30,1989).

The 1989 interim rule that establishedbuilding energy efficiency standards



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was mandatory for Federal buildingsand voluntary for all others. Todaysfinal rule addresses solely Federalcommercial construction, whichrepresents only 2 percent of total newconstruction nationwide, and does notinclude voluntary standards for non-Federal construction.

The final rule will change energy

consumption as compared to the interimrule in the areas of lighting, motors, andHVAC equipment. In conducting theanalysis that supports this final rule, theDepartment found that final changes tothe lighting level requirements wouldproduce a 4.7 percent reduction in

building energy consumption comparedto the 1989 lighting criteria in theinterim rule. The final rule also isexpected to produce a 0.24 percentreduction in building energyconsumption due to the increasedefficiency requirements of motors ascompared to the interim rule. The final

rule, however, could increase energyuse by 1015 percent, because of theadditional ventilation requirements ofAddendum 90.1e, as compared to theinterim rule. The net result is anapproximate 510 percent increase intotal building energy use as compared tothe interim rule with the 1989 lightinglevels. Since Federal constructionrepresents only 2 percent of the totalnew commercial and multi-family high-rise residential construction nationally,the increase in energy consumption (0.1to 0.2 percent) nationally will benegligible.

The Department believes that minimal

environmental impacts will result fromthis final rule. Further, such effects fallwithin the range of impacts that areanalyzed in the interim rules EA. Theseeffects are determined not to besignificant in the FONSI published in1987. Accordingly, the Departmentdetermines that after all theenvironmental effects of the final ruleare considered, this final rule is

bounded by the analysis in the EA.Therefore, the preparation of a new EAor an environmental impact statement isnot required.

F. Paperwork Reduction Act Review

No new information or record keepingrequirements are imposed by thisrulemaking. Accordingly, no Office ofManagement and Budget clearance isrequired under the PaperworkReduction Act. 44 U.S.C. 3501 et seq.

G. Review Under the UnfundedMandates Reform Act of 1995

Title II of the Unfunded MandatesReform Act of 1995 (the Act), 2 U.S.C.1531 et seq., requires each Federalagency, to the extent permitted by law,

to prepare a written assessment of theeffects of any Federal mandate in a finalagency rule that may result in theexpenditure by State, local, and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or more(adjusted annually for inflation) in anyone year.

The final rule establishes building

energy efficiency standards for newFederal commercial and multi-familyhigh rise residential buildings pursuantto section 305 of the ECPA, as amended.42 U.S.C. 6834. It does not include anyFederal requirements that would resultin the expenditure of money by State,local, and tribal governments. Therefore,the requirements of the Act do not applyto this rulemaking.

H. Review Under Section 32 of theFederal Energy Administration Act of1974

Pursuant to section 301 of theDepartment of Energy Organization Act(Pub. L. 9591), the Department ofEnergy is required to comply withsection 32 of the Federal EnergyAdministration Act of 1974, 15 U.S.C.788. The Department of Energy isrequired by section 32 to notify thepublic regarding the proposed use ofcommercial standards in a rulemakingand allow interested persons to makeknown their views regarding theappropriateness of the use of anyparticular commercial standard in anotice of proposed rulemaking.

The Department included aninvitation for public comment in the

notice of proposed rulemaking. Severalcommenters, covering professionalorganizations, manufacturers,Government agencies, and utilities,endorsed the appropriateness of the useof the codified version of Standard90.11989. No adverse comments werereceived.

In addition, section 32(c) precludesthe Department from incorporating anycommercial standard into a rule unlessit has consulted with the AttorneyGeneral and the Chairman of the FederalTrade Commission (FTC) as to theimpact of such standard on competition.

Pursuant to section 32(c), theDepartment advised these individuals ofits intention to incorporate portions ofthe above-referenced standards into thisfinal rule. Neither recommended againstsuch incorporation.

I. Takings Assessment Review

The Department has determinedpursuant to Executive Order 12630,Governmental Actions and Interferencewith Constitutionally Protected PropertyRights, 53 FR 8859 (March 18, 1988),that this regulation would not result in

any takings which might requirecompensation under the FifthAmendment to the U.S. Constitution.

J. Congressional Notification

Consistent with Subtitle E of theSmall Business Regulatory EnforcementFairness Act of 1996, 5 U.S.C. 801808,the Department will submit to Congress

a report regarding the issuance oftodays final rule prior to the effectivedate set forth at the outset of this notice.The report will note the Office ofManagement and Budgetsdetermination that this rule does notconstitute a major rule under that Act.5 U.S.C. 801, 804.

K. National Technology Transfer andAdvancement Act

The National Technology Transferand Advancement Act of 1995, section12(d), Pub. L. 104113, requires Federalagencies to use technical standards that

are developed or adopted by voluntaryconsensus standards bodies to carry outtheir policy objectives or activities. Ifuse of such technical standards isinconsistent with applicable law orotherwise impractical, a Federal agencymay elect to use technical standards thatare not developed or adopted byvoluntary consensus standards if thehead of the agency transmits to theOffice of Management and Budget(OMB) an explanation of the reasons forusing such standards. If an agencyissues or revises a regulation thatcontains a technical standard, the

agency is required by OMB Circular A119 to provide certain information aboutits choice of standard in the notices ofproposed and final rulemaking. 63 FR8546, 8557 (February 19, 1998). In anotice of final rulemaking, the agencymust state if it is using a voluntaryconsensus standard and, if so, identifythe standard and any alternativevoluntary consensus standards thatwere identified. If a Government-uniquestandard is being used, the agency mustexplain why using a voluntaryconsensus standard would beinconsistent with applicable law orotherwise impractical.

This final rule closely parallelsStandard 90.11989 and subsequentaddenda to that voluntary consensusstandard. Section 305(a)(2)(A) of ECPA,42 U.S.C. 6834(a)(2)(A), requires DOE toestablish commercial building standardsfor new Federal buildings that containenergy saving and renewable energyspecifications that meet or exceed thosein ASHRAE Standard 90.11989.Consistent with the statute, DOE did notconsider alternative voluntarystandards.



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List of Subjects in 10 CFR Parts 434 and435

Buildings, Energy conservation,Engineers, Federal buildings andfacilities, Incorporation by reference.

Issued in Washington, D.C., on June 30,2000.

Dan W. Reicher,

Assistant Secretary, Energy Efficiency andRenewable Energy.

For the reasons set forth in thepreamble, chapter II of title 10 of theCode of Federal Regulations is amendedas set forth below:

PART 435ENERGY CONSERVATIONVOLUNTARY PERFORMANCESTANDARDS FOR NEW BUILDINGS;MANDATORY FOR FEDERALBUILDINGS

1. The authority citation for Part 435is revised to read as follows:

Authority: 42 U.S.C. 68316832; 6834

6836; 42 U.S.C. 825354; 42 U.S.C. 7101 etseq.

Subpart A [Removed and reserved]

2. Subpart A (435.97 through435.112) of part 435 is removed andreserved.

3. A new part 434 is added to chapterII of title 10 to read as follows:

PART 434ENERGY CODE FOR NEWFEDERAL COMMERCIAL AND MULTI-FAMILY HIGH RISE RESIDENTIALBUILDINGS

Sec.434.99 Explanation of numbering systemfor codes.

Subpart AAdministration andEnforcementGeneral

434.100 Purpose.434.101 Scope.434.102 Compliance.434.103 Referenced standards (RS).434.105 Materials and equipment.

Subpart BDefinitions

434.201 Definitions.

Subpart CDesign Conditions

434.301 Design criteria.

Subpart DBuilding DesignRequirementsElectric Systems andEquipment

434.401 Electrical power and lightingsystems.

434.402 Building envelope assemblies andmaterials.

434.403 Building mechanical systems andequipment.

434.404 Building service systems andequipment.

Subpart EBuilding Energy CostCompliance Alternative

434.501 General.

434.502 Determination of the annual energycost budget.

434.503 Prototype building procedure.434.504 Use of the prototype building to

determine the energy cost budget.434.5

10 cfr 434-435 waisgate federal register

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