Building Energy Standards Program: Updating State Building Codes Regarding Energy Efficiency

DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Docket No. EE-RM-94-210]

Building Energy Standards Program: Updating State Building Codes

Regarding Energy Efficiency

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

Energy (DOE).

ACTION: Notice.

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SUMMARY: Pursuant to section 304 of the Energy Conservation and

Production Act, the Department of Energy (DOE or Department) is

announcing guidance and procedures for the use of States concerning

their review of the energy-related provisions of their residential

building codes in light of the relevant version of the Council of

American Building Officials' Model Energy Code (Model Energy Code), and

of their commercial building codes in light of the American Society of

Heating, Refrigerating and Air Conditioning Engineers/Illuminating

Engineering Society of North America Standard 90.1-1989 (Standard 90.1-

1989). The guidance and procedures cover Certifications, Statements of

Reasons and Requests for Extensions of Deadlines from States pursuant

to section 304.

In addition, the Department today determines that the Model Energy

Code, 1993 compared to the Model Energy Code, 1992 would achieve

greater energy efficiency in residential buildings. Consequently,

States should review their residential building codes during the next

two years using the Model Energy Code, 1993 as the standard.

DATES: Certifications or Statements of Reasons with regard to Model

Energy Code, 1992 are due October 24, 1994. Certifications or

Statements of Reasons with regard to Model Energy Code, 1993 are due

two years from the publication of this notice. Certifications with

regard to Standard 90.1-1989 are due October 24, 1994.

ADDRESSES: Certifications, Statements of Reasons, and Requests for

Extensions of Deadlines for Certification Statements by States should

be directed to the Assistant Secretary for Energy Efficiency and

Renewable Energy, Office of Codes and Standards, Mail Station EE-43,

1000 Independence Avenue, Washington, DC 20585. Envelopes or packages

should be labeled, ``State Certification of Building Codes Regarding

Energy Efficiency.''

FOR FURTHER INFORMATION CONTACT: Stephen P. Walder, U.S. Department of

Energy, Office of Energy Efficiency and Renewable Energy, Forrestal

Building, Mail Station EE-432, 1000 Independence Avenue, SW.,

Washington, DC 20585, Phone: 202-586-9209, FAX: 202-586-4617.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Statutory Requirements

Title III of the Energy Conservation and Production Act of 1976, as

amended (Act) establishes mandated requirements for the Building Energy

Standards Program. 42 U.S.C. 6831-6837. The Act applies to all State

building codes which by definition includes the codes of units of

general purpose local government. 42 U.S.C. 6832. As stated in the Act,

the term ``State'' is defined to include the District of Columbia, the

Commonwealth of Puerto Rico, any territory and possession of the United

States, as well as the 50 States.

1. Residential Building Codes. Under the Act, each State, not later

than two years after the enactment of the Energy Policy Act of 1992

(October 24, 1992), is required to certify to the Secretary of Energy

(Secretary) that it has reviewed the provisions of its residential

building code regarding energy efficiency and made a determination as

to whether it is appropriate for such State to revise its residential

building code provisions to meet or exceed the Model Energy Code, 1992

or any successor of such code that improves energy efficiency. The

determination is to be: (1) made after public notice and hearing; (2)

made in writing; (3) based on findings included in such determination

and evidence presented at the hearing; and (4) available to the public.

42 U.S.C. 6833(a)(1), (a)(2). In addition, if a State makes a

determination that it is not appropriate to revise its residential

building code, the State is required to submit to the Secretary, in

writing, the reasons for the determination which is to be made

available to the public. 42 U.S.C. 6833(a)(4).

Furthermore, whenever the Model Energy Code, 1992, or any successor

to such code is revised, the Secretary is required to make a

determination, not later than 12 months after such revision, whether

such amendment would improve the energy efficiency of residential

buildings and to publish notice of such determination in the Federal

Register. If the Secretary determines that the revision of Model Energy

Code, 1992, or any successor thereof, improves the energy efficiency in

residential buildings, then not later than two years after the date of

the publication of such determination, each State is required to

certify that it has reviewed the provisions of its residential building

code regarding energy efficiency and made a determination as to whether

it is appropriate for the State to revise its residential building

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

As of the date that this notice was issued, only one State had

submitted a certification with regard to the Model Energy Code, 1992.

2. Commercial Building Codes. Under the Act, each State, not later

than two years after enactment of the Energy Policy Act of 1992, is

required to certify to the Secretary that it has reviewed and updated

the provisions of its commercial building code regarding energy

efficiency. The certification must include a demonstration that the

State's code provisions meet or exceed the requirements of Standard

90.1-1989. Whenever the provisions of Standard 90.1-1989, or any

successor standard, are revised, the Secretary is required to make a

determination, not later than 12 months after the date of such

revision, whether such amendment would improve energy efficiency in

commercial buildings and to publish notice of such determination in the

Federal Register. 42 U.S.C. 6833(b)(1) and (b)(2). If the Secretary

publishes an affirmative determination, then the States have up to 2

years to review and update their commercial building codes accordingly.

Id.

3. Requests for Extension of Deadlines. The Act authorizes the

Secretary to permit extensions of the deadlines for the certification

requirements relative to both residential and commercial building

codes, if the State can demonstrate that it has made a good faith

effort to comply with the requirements and that it has made significant

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

II. Discussion

A. Updating Residential Building Codes Regarding Energy Efficiency

1. Determination. As stated above, section 304(a)(2) requires each

State to make a determination as to whether it is appropriate for such

State to revise its residential building code regarding energy

efficiency. The determination shall be: (1) made after public notice

and hearing; (2) in writing; (3) based upon findings and upon the

evidence presented at the hearing; and (4) made available to the

public. The States have considerable discretion with regard to the

hearing procedures they use, subject to providing an adequate

opportunity for members of the public to be heard and to present

relevant information. The Department recommends publication of any

notice of public hearing in newspapers of general circulation.

The Department realizes that some States do not have a State

residential code or have a code that does not apply to all newly

constructed residential buildings. If local building codes regulate

residential building design and construction rather than a State code,

the State must provide for review of those local codes and determine

whether it is appropriate for each of its units of general purpose

local government to revise the provisions of its residential building

code regarding energy efficiency to meet or exceed the Model Energy

Code. States may base their determinations and certifications on

reasonable preliminary determinations by units of general purpose local

government after they have held an adequate public hearing.

States should be aware that high-rise multi-family residential

buildings (greater than three stories) and hotel, motel, and other

transient residential building types of any height have historically

been treated for energy code purposes as commercial buildings.

Consistent with the treatment of high-rise multi-family residential

buildings and hotels, motels, and other transient residential building

types in Standard 90.1-1989 as if they were commercial buildings, the

Department is of the view that the energy efficiency requirements of

building codes applicable to such buildings should be reviewed and

updated by the States and units of general purpose local government

pursuant to the Act as if they were commercial building code

requirements. Consequently, residential buildings, for the purposes of

certification, would include one- and two-family detached and attached

buildings, townhouses, row houses, and low-rise multi-family buildings

(not greater than three stories) such as condominiums and garden

apartments.

2. Certification. As stated above, section 304(a) requires each

State to certify to the Secretary that it has reviewed the provisions

of its residential building code regarding energy efficiency and made a

determination as to whether it is appropriate for such State to revise

the provisions of such residential building code to meet or exceed the

Model Energy Code, 1992. The certification must be in writing. If a

State intends to certify that its residential building code(s) already

meet or exceed the requirements of the Model Energy code, 1992, it

would be appropriate for the State to provide an explanation of the

basis for this certification, e.g. the Model Energy Code, 1993, is

incorporated by reference, the results of the Departments' comparative

analysis or the results of an independent analysis. The Department

believes that it would be appropriate for the chief executive of the

State (e.g., the Governor) to designate a State official such as the

Director of the State energy office, State code commission, utility

commission, or equivalent having primary responsibility for residential

building code promulgation and adoption to provide the certification to

the Secretary, including certifications regarding the codes of units of

general purpose local government based on information provided by

responsible local officials.

3. Statement of reasons. Section 304(a)(4) requires that if a State

makes a determination that it is not appropriate to revise the energy

efficiency provisions of its residential building code, the State is to

submit to the Secretary, in writing, the reasons for this

determination. The statement of reasons should define and summarize the

pertinent issues and problems regarding its determination; and provide

an explanation as to why the State came to its conclusion. If local

building codes are applicable in the absence of a State code, the State

may rely on reasons provided by the units of general purpose local

government. Upon receipt, the Department will publish in the Federal

Register a notice of availability, stating that a copy has been placed

in its Freedom of Information Reading Room in the Forrestal Building in

Washington, D.C., so that members of the public may inspect it.

4. DOE Determination of Improved Energy Efficiency from a Revised

Model Energy Code. At the beginning of 1993, the Council of American

Building Officials published a new edition of the Model Energy Code.

Differences between the two versions include: (1) the 1993 Edition

incorporates the heating, ventilation, and air conditioning minimum

energy efficiency standards requirements from Standard 90.1-1989 which

includes the Department's appliance energy conservation regulations. 10

CFR Part 430. (2) the 1993 Edition incorporates revised Uo\1\

values for walls; (3) the 1993 Edition includes revised air

infiltration values for windows and doors; and (4) the 1993 Edition

incorporated the air leakage requirements of Standard 90.1-1989.

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\1\Uo = the area-weighted average thermal transmittance of

the gross area of the building envelope; i.e., the exterior wall

assembly including fenestration and doors, the roof and ceiling

assembly, and the floor assembly, British thermal unit/(hour x

square feet x degrees Fahrenheit).

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Based on the above, the Department has determined that the 1993

update would improve the energy efficiency of residential building

codes. Section 304(a)(5) of the Act provides for States to certify

their codes [using the procedures in section 304(a)(2)] after reviewing

them in light of a revised version of the Model Energy Code, such as

the 1993 update, not later than two years from the Department's

determination that the revised version would improve energy efficiency.

With regard to the Model Energy Code, 1993, that period for revision

begins today.

As noted above, only one State has submitted a certification with

regard to its residential building code as of the date that this notice

was issued. States that have not yet made substantial progress in

reviewing the energy efficiency provisions of their residential

building codes may wish to review and certify their codes in light of

the Model Energy Code, 1993. If a State is able to complete its review

and certification with regard to the Model Energy Code, 1993 on or

before October 24, 1994, there is no need to separately review and

certify with respect to the Model Energy Code, 1992. States that have

made substantial progress in reviewing the energy efficiency provisions

of their residential building codes in light of the Model Energy Code,

1992 may wish to complete their review and submit an appropriate

certification by the October 24, 1994 statutory deadline before

considering the Model Energy Code, 1993.

B. State Certification and Demonstration Regarding Updating of

Commercial Building Codes

1. Certification. Section 304(b) requires that not later than

October 24, 1994 each State shall certify in writing to the Secretary

that it has reviewed and updated the provisions of its commercial

building code regarding energy efficiency. The certification is

required to include a demonstration that the commercial building code

provisions regarding energy efficiency meet or exceed the requirements

of Standard 90.1-1989. As discussed in section A herein, commercial

buildings include hotels, motels and other transient buildings of any

height as well as high-rise (greater than three stories) multi-family

residential buildings (such as apartments and condominiums).

The Department believes that it would be appropriate for the chief

executive of the State (e.g., the Governor) to designate a State

official such as the Director of the State energy office, State code

commission, utility commission or equivalent having primary

responsibility for commercial building code promulgation and adoption

to provide the certification to the Secretary. The Department realizes

that some States do not have a State commercial code or have a code

that does not apply to all newly constructed commercial buildings.

Where local building codes regulate commercial building design and

construction rather than a State code, the State must provide for the

review and updating of those codes regarding energy efficiency to meet

or exceed Standard 90.1-1989. With respect to local building codes,

States may base their review and update on reasonable preliminary

review and certifications presented to the State by its units of

general purpose local government.

2. Demonstration. It would be appropriate for the demonstration to

include a copy of the State and local government (if applicable)

commercial building codes regarding energy efficiency or copies of

legislation or regulations adopting either Standard 90.1-1989, or the

codified version of Standard 90.1-1989, by reference or incorporation

into its State or local building codes. If a State has not adopted

Standard 90.1-1989 by reference or incorporation, it would be

appropriate to include an analysis showing that its code meets or

exceeds Standard 90.1-1989, or the State could accept the conclusions

provided the State by the Department in its comparative analysis of the

State code relative to Standard 90.1-1989 as a part of the technical

assistance provided under section 304(d). In conjunction with the

effort to update its residential building code, States should be aware

that the Model Energy Code, 1993 adopts Standard 90.1-1989 by reference

for commercial and high-rise residential buildings. As such, State

adoption of the Model Energy Code, 1993 would automatically satisfy the

Act as it relates to commercial buildings.

Demonstrations for local government building codes may be based on

reasonable preliminary review and analyses presented to the State by

its units of general purpose local government.

C. Request for Extensions

Section 304(c) of the Act requires that the Secretary permit

extensions of the deadlines for the certification requirements under

sections 304(a) and (b) 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 the provisions of section 304. Such

demonstrations could include one or more of the following: (1) a plan

for response to the requirements stated in section 304; (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; or (3) a notice of public hearing.

States should submit separate requests for extension of deadlines

for their residential and the commercial building code certifications.

D. Submittals

When submitting any of the above-described documents in this

notice, the Department requests that the original documents be

accompanied by one copy of the same.

Issued in Washington, DC, on June 7, 1994.

Christine A. Ervin,

Assistant Secretary, Energy Efficiency and Renewable Energy.

[FR Doc. 94-17259 Filed 7-14-94; 8:45 am]

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