DOS-02-10-00011-P Efficient Utilization of Energy Expended in the Construction, Use and Occupancy of Buildings

1/13/10 N.Y. St. Reg. DOS-02-10-00011-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 2

January 13, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. DOS-02-10-00011-P

Efficient Utilization of Energy Expended in the Construction, Use and Occupancy of Buildings

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 1240.1 of Title 19 NYCRR.

Statutory authority:

Energy Law, section 11-103(2)

Subject:

Efficient utilization of energy expended in the construction, use and occupancy of buildings.

Purpose:

To amend the State Energy Conservation Construction Code to assure that it effectuates the purposes of Energy Law Art 11.

Public hearing(s) will be held at:

10:00 a.m., March 1, 2010 at Department of State, 99 Washington Ave., Conference Rm. 505, Albany, NY; 10:00 a.m., March 2, 2010 at Perry B. Duryea Jr. State Office Building, 250 Veterans Memorial Hwy., Classrooms 2 and 3, Hauppauge, NY; 1:00 p.m., March 3, 2010 at Hughes State Office Building, 333 E. Washington St., Main Hearing Rm. - 1st Fl., Syracuse, NY; 10:00 a.m., March 4, 2010 at Amherst Town Hall, 5583 Main St., Council Chambers-Upper Level, Williamsville, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Text of proposed rule:

Subdivision (a) of section 1240.1 of Title 19 NYCRR is amended to read as follows:

(a) [2007] 2010 ECCCNYS. Requirements for the design of building envelopes for adequate thermal resistance and low air leakage and for the design and selection of mechanical, electrical, service water heating and illumination systems and equipment which enables effective use of energy in new building construction are set forth in a publication entitled Energy Conservation Construction Code of New York State, publication date: [August 2007] January 2010, published by the International Code Council, Inc. Copies of said publication (hereinafter referred to as the [2007] 2010 ECCCNYS) may be obtained from the publisher at the following address:

International Code Council, Inc. 500 New Jersey Avenue, NW, 6th Floor Washington, D.C. 20001

Said publication is available for public inspection and copying at:

New York State, Department of State Codes Division 99 Washington Avenue Albany, NY 12231-0001

Paragraph (1) of subdivision (b) of section 1240.1 of Title 19 NYCRR is amended to read as follows:

(1) Certain published standards are denoted in the [2007] 2010 ECCCNYS as incorporated by reference into 19 NYCRR Part 1240. Such standards are incorporated by reference into this Part 1240. Such standards are identified in the [2007] 2010 ECCCNYS, and the names and addresses of the publishers of such standards from which copies of such standards may be obtained are specified in the [2007] 2010 ECCCNYS. Such standards are available for public inspection and copying at the office of the New York State Department of State specified in subdivision (a) of this section.

Paragraph (2) of subdivision (b) of section 1240.1 of Title 19 NYCRR is repealed.

(The following is not part of the Text of the proposed rule and is included herein for information only: The Department of State intends to make a copy of the 2010 edition of the Energy Conservation Construction Code of New York State available for viewing on-line. For further information, please see the website of the Department of State’s Division of Code Enforcement and Administration at: http://www.dos.state.ny.us/code/ls-codes.html.)

Text of proposed rule and any required statements and analyses may be obtained from:

Raymond Andrews, Department of State, 99 Washington Ave., Albany, NY 12231-0001, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

March 15, 2010

Summary of Regulatory Impact Statement

1. STATUTORY AUTHORITY.

Energy Law section 11-103(2) authorizes the State Fire Prevention and Building Code Council (the "Code Council") to promulgate rules and review and amend the State Energy Conservation Construction Code (the "State Energy Code"), provided that the State Energy Code remains cost effective with respect to building construction. The Energy Law provides that the State Energy Code shall be deemed cost effective if the cost of materials and their installation to meet its standards would be equal to or less than the present value of energy savings that could be expected over a ten year period in a building where such materials are required to be installed.

2. LEGISLATIVE OBJECTIVES.

Article 11 of the Energy Law, entitled State Energy Conservation Construction Code Act, was first adopted by the State Legislature in 1978. The Act was subsequently amended by Chapter 516 of the Laws of 1984 and Chapter 292 of the Laws of 1998. Energy Law section 11-101 directs the adoption of a State Energy Code to protect the health, safety and security of the people of the State and to assure a continuing supply of energy for future generations. It provides that the State Energy Code shall mandate that economically reasonable energy conservation techniques be used in the design and construction of all new public and private buildings in New York. Energy Law section 11-101 further states that adoption of the State Energy Code is in furtherance of the policy set forth in subdivision 2 of Energy Law section 3-101. Subdivision 2 states that it shall be the energy policy of New York to encourage conservation of energy in the construction and operation of new commercial, industrial, and residential buildings, and in the rehabilitation of existing structures, through heating, cooling, ventilation, lighting, insulation and design techniques and the use of energy audits and life-cycle costing analyses.

Energy Law section 11-103(a) requires the State Energy Code to be at least equal to the standards specified in Standard 90.1 of the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE), entitled Energy Conservation in New Building Design (ASHRAE 90-75, now referred to as Standard 90.1), and to the referenced standards upon which the ASHRAE 90.1 is based. In addition, any portion of the State Energy Code which applies to residential construction is required to be at least equivalent to the requirements set forth in the Public Service Commission opinion PSC 76-16 (C), dated May 15th and 16th, 1977, and appendices thereto. Subdivision 1(b) of Energy Law section 11-103, which was added by Chapter 516, L.1984, provides for limitations on the State Energy Code's application to alterations in existing buildings.

Article 11 of the Energy Law also provides the statutory authority for Chapter 11 of the Residential Code of New York State (Residential Code), which regulates the construction and alteration of detached one- and two-family dwellings and multiple single-family dwellings (townhouses), not more than three stories in height with separate means of egress.

In addition, the American Recovery and Reinvestment Act (ARRA) of 2009 requires: "investment in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits" and "to stabilize State and local government budgets, in order to minimize and avoid reductions in essential services and counterproductive state and local tax increases." Under ARRA, significant additional Federal energy grants are available to States that undertake certain energy-related initiatives, including the adoption of a building energy code for residential buildings that meets or exceeds IECC-2009, or achieves equivalent or greater energy savings, and a building energy code for commercial buildings that meets or exceeds ASHRAE 90.1-2007, or achieves equivalent or greater energy savings.

DOS and the Code Council have now determined that it would further the purposes, objectives and standards of Article 11 of the Energy Law to maintain consistency between the State Energy Code and the two codes identified in ARRA (viz., IECC-2009 and ASHRAE 90.1-2007).

The proposed State Energy Code to be adopted by this rule is based on IECC-2009, with certain New York modifications. DOS has determined (1) that the New York modifications made to IECC-2009 are as restrictive as, or more restrictive than, IECC-2009, (2) that the proposed State Energy Code to be adopted by this rule meets or exceeds IECC-2009, or achieves equivalent or greater energy savings, and (3) accordingly, that the proposed State Energy Code to be adopted by this rule satisfies the requirements of ARRA.

ARRA also provides that States receiving the federal energy grants must implement a plan for achieving compliance with the target energy codes in at least 90 percent of new and renovated residential and commercial building space. In furtherance of the objective of implementing such a plan, the State Energy Code, as amended by this rule, will include the following provision: "It is intended that this code shall apply additions, alterations, renovations and repairs to existing residential building in all cases where the 2009 IECC would apply, and that this code shall apply to additions, alterations, renovations and repairs to existing commercial buildings in all cases where ASHRAE 90.1-2007 would apply." However, it should be noted that section 11-103(1)(b) of the Energy Law currently provides that in the case of a renovation of an existing building, the State Energy Code shall apply "only to that portion of a building subsystem or subsystems which is replaced; provided that fifty percent or more of such building subsystem or subsystems is replaced" and that section 11-104(4) of the Energy Law currently provides that the State Energy Code "shall exempt from such uniform standards and requirements property that is listed on the national register of historic places, property that is listed on the state register of historic places or property that is determined to be eligible for listing on the state register by the commissioner of parks, recreation and historic preservation." To accommodate these existing statutory limitations on applicability of the State Energy Code, and the possibility that these existing statutory limitations on applicability may be amended by legislation adopted after this rule is adopted, the applicability provisions of the State Energy Code, as amended by this rule, will be made subject to statutory limitations on applicability, as in effect at the time of adoption of this rule and as thereafter amended from time to time.

3. NEEDS AND BENEFITS.

By reducing energy demands in a cost effective manner, as required by Energy Law section 11-103, the proposed amendment will restrain the growth in the use of energy New York State will benefit from the consequent reductions of dependence on imported fossil fuels and the reduction in associated emissions produced by their use.

4. COSTS.

a. Costs to Regulated Parties for Implementation of and Compliance with the Rule:

The proposed amendments to the Energy Code are expected to provide overall savings far in excess of first costs via fuel savings.

Further information concerning the costs and savings from significant provisions of the amendments to the State Energy Code are discussed in the Regulatory Impact Statement.

Regulated parties will incur costs if they wish to obtain copies of the State Energy Code, as amended by this rule making. It is expected that the cost of the amended State Energy Code will be approximately $34.00 for a soft cover copy.

b. Costs to the Agency, the State and Local Governments for the Implementation and Continuation of the Rule:

It is not anticipated that this rule will place any greater burden on local governments with respect to code enforcement and administration than that which currently exists. It is anticipated that Energy Code books will be purchased for municipalities. Furthermore, the Department of State, Division of Code Enforcement and Administration has a program in place for training local government code enforcement officials. The staff of the Division of Code Enforcement and Administration will undergo training to assist local governments. Plans for widespread training and assistance to Municipalities are in formulation by DOS and NYSERDA.

Further information concerning the costs and savings from significant provisions of the amendments to the State Energy Code are discussed in the full Regulatory Impact Statement.

5. LOCAL GOVERNMENT MANDATES.

Adoption of the proposed rule would not change the basic enforcement and administrative structure of the State Energy Code. Energy Law section 11-107 provides that the Energy Code will be principally administered and enforced by the cities, towns and villages of New York.

Local government will require training in the details of this rule. The DOS Code Division has a program in place for training local government code enforcement officials. Plans for widespread training to Municipalities are in formulation by DOS and NYSERDA.

6. PAPERWORK.

This rule will not impose any additional reporting or recordkeeping requirements. No additional paperwork is anticipated.

7. DUPLICATION.

The proposal does not duplicate, nor is it inconsistent with any existing Federal or State Law.

Pursuant to the U.S. Energy Conservation and Production Act, as amended, the DOE has determined that the 2009 edition of the International Energy Conservation Code and ASHRAE/IESNA 90.1-2007 will improve energy efficiency in residential and commercial building construction, respectively. Each state is required to certify to DOE that its energy code mandates that commercial buildings meet the requirements of ASHRAE/IESNA 90.1.

Energy Law section 11-103(3) provides as follows: "Notwithstanding any other provision of law, the New York State Fire Prevention and Building Code Council in accordance with the mandate under this article (Energy Law Article 11) shall have exclusive authority among state agencies to promulgate a construction code incorporating energy conservation features. Any other code, rule or regulation promulgated or enacted by any other state agency, incorporating specific energy conservation requirements for construction of any building, shall be superseded by the code promulgated pursuant to this section." Consequently, any regulations of other State agencies pertaining to energy conservation have been superseded by the adoption of the State Energy Code.

8. ALTERNATIVES.

It is the policy of DOS to modernize and amend the State Energy Code and Chapter 11 of the Residential Code regularly, so as to maintain consistency with national model codes, to keep energy conservation construction practices in New York State consistent with practice nationally, and to incorporate new technical developments in a timely manner. Consequently, the alternative of maintaining existing provisions of the State Energy Code was rejected.

Further information concerning alternatives considered with regard to significant provisions of the new State Energy Code are discussed following Item 9 of the full Regulatory Impact Statement.

9. FEDERAL STANDARDS.

Title III of the Energy Conservation and Production Act (ECPA), establishes a Building Energy Standards Program [42 U.S.C. 6831-6837]. ECPA provides that when the 1992 Model Energy Code, or any successor to that code, is, the Secretary of the DOE must determine, not later than 12 months after the revision, whether the code would improve energy efficiency in residential buildings and must publish notice of the determination in the Federal Register [42 U.S.C. 6833 (a) (5) (A)]. If the Secretary determines that the revision would improve energy efficiency, each state, not later than two years after the date of the publication of the affirmative determination, is required to certify that it has compared its residential building code regarding energy efficiency to the code and made a determination whether it is appropriate to revise its code to meet or exceed the provisions of the successor code [42 U.S.C. 6833(a) (5) (B)].

DOE has issued a determination that the 2009 edition of the International Energy Conservation Code (IECC) and ASHRAE Standard 90.1- 2007 will improve energy efficiency in residential and commercial buildings. Each state is required to certify to DOE that it has reviewed the provisions of its residential building code regarding energy efficiency and make a determination as to whether it is appropriate for the State to revise its building code to meet or exceed the 2009 IECC. States should then inform the DOE about their decision on updating to the 2009 IECC.

Regulatory Flexibility Analysis

1. EFFECT OF RULE:

This rule making will amend the State Energy Conservation Construction Code (the "State Energy Code") to make the State Energy Code (1) a building energy code for residential buildings which is based on the 2009 edition of the International Energy Conservation Code (the "2009 IECC"), a model code developed and published by the International Code Council ("ICC"), and (2) a building energy code for commercial buildings which is based on the 2007 edition of ASHRAE-90.1 (the "2007 ASHRAE 90.1"), a standard published by the American Society Of Heating and Refrigeration and Air Conditioning Engineers. The State Energy Code, which is adopted pursuant to Article 11 of the Energy Law, is applicable in all areas of the State. Therefore, all areas of the State will be affected by this amendment.

Small businesses that construct, own, or operate buildings or structures will be required to comply with the State Energy Code, as amended by this rule making. Businesses that provide services to building owners, such as facility managers, design professionals (e.g., architects and engineers), general and specialty contractors (including home builders), and product suppliers, though not directly regulated by this rule, will be impacted by this rule. It is not possible to calculate the exact number of businesses that will be affected by this rule, but the number is likely to be large. For example, as of January 7, 2008, there were 14,517 active registered architects and as of July 2, 2007, there were 24,760 active registered engineers in New York State.

Similarly, all local governments that construct, own, or operate buildings or structures will be required to comply with the State Energy Code, as amended by this rule making. In that respect, all or most of the local governments in this State will be affected by this rule making. However, the impact of this rule making on local governments, in their capacity as building owners and operators, will be essentially identical to the impact of this rule making on all other parties, public or private, that own or operate buildings.

This rule making will have an additional impact on most cities, towns and villages in this State: Energy Law section 11-107 provides that the administration and enforcement of the State Energy Code within any municipality shall be the responsibility of the governmental entity responsible for administration and enforcement of the building construction code or the fire prevention and building construction code applicable within the municipality. Executive Law section 381 provides that every city, town, and village of the State shall administer and enforce the Uniform Fire Prevention and Building Code within their boundaries except in limited specified circumstances. Consequently, most cities, towns and villages in the State are currently responsible for the administration and enforcement of the current State Energy Code within their boundaries, and will remain responsible for administering and enforcing the State Energy Code as amended by this rule making.

2. COMPLIANCE REQUIREMENTS:

Construction documents are currently submitted when a building permit is requested. The energy compliance aspect is part of the construction documents. The State Energy Code, as amended by this rule making, will not change this procedure.

Energy calculations may also currently be requested by code enforcement officers. This will remain under the State Energy Code, as amended by this rule making.

This rule will not change local government's responsibility for administering and enforcing the State Energy Code. These requirements are referenced in Section 11-107 of the Energy Law. The administration and enforcement of the provisions of the State Energy Code within any municipality shall be the responsibility of that governmental entity which is responsible for the administration and enforcement of the provisions of the building code. The code shall be administered and enforced in the manner prescribed by applicable local law or ordinance or the procedures adopted pursuant to section three hundred eighty-one of the executive law for the administration and enforcement of the state uniform fire prevention and building code.

Local governments currently maintain inspection records. This will continue under the State Energy Code, as amended by this rule making.

3. PROFESSIONAL SERVICES:

Regulated parties will continue to rely upon design, construction and energy conservation professionals to properly advise them of the requirements of the State Energy Code as amended by this rule making. Building owners typically rely on professionals for their expertise in building and energy conservation regulations.

4. COMPLIANCE COSTS:

It is anticipated that regulated parties will recognize energy conservation savings as a result of this rule making.

Section 11-103 of the Energy Law authorizes the State Fire Prevention and Building Code Council to review and amend the State Energy Code through rules and regulations, provided that the code remains cost effective with respect to building construction in the State. Energy Law section 11-102(2) provides that "the (State Energy Code) shall be deemed cost effective if the cost of materials and their installation to meet its standards would be equal to or less than the present value of energy savings that could be expected over a ten year period in the building in which such materials are installed."

There will be no initial costs incurred by local government for implementation of rule.

Indirectly impacted parties, such as architects, engineers, designers, contractors, and builders, will need to receive training. Initial training costs in the range of $150 to $200 per person, based upon a class size of 20 to 25 persons, is anticipated. It is customary for registered design professionals and construction personnel to receive continuing education throughout their careers. Thus, this rule will not place an additional burden on indirectly impacted parties in any greater proportion than which is already incurred by the existing rule. Furthermore, in New York State, architects are required by the Education Law to receive continuing education in order to maintain an active registration to practice.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

This rule will offer regulated parties a broad range of compliance options. The Code provisions are performance based, and thus, will allow regulated parties the opportunity to select the most cost-effective alternative for compliance.

Regulatory change, like technological innovation, is constant in the construction industry. Regulated parties as well as those who provide services to them (i.e. architects, engineers, designers, contractors, and builders) are accustomed to such change. This rule making is expected to encourage innovation in the construction industry, and provide small businesses more opportunity to grow.

Several training resources are available both within and outside the state to assist impacted parties master the proposed new provisions of the State Energy Conservation Construction Code. These include trainers affiliated with the ICC and other specialized training professionals. Other competent entrepreneurs will undoubtedly be encouraged to join the market to meet the demand for this specialized training. The staff of the Division of Code Enforcement and Administration will provide training for local officials to administer and enforce the code.

6. MINIMIZING ADVERSE EFFECTS:

This rule change will impact all types of small businesses.

The Department of State - Division of Code Enforcement and Administration will provide training for the new Energy Code for local government enforcement personnel in the state.

Some training and education to architects and engineers will be provided by the Department of State and NYSERDA. Computer software will continue to be available to assist regulated parties.

In order to assure a continuing supply of energy for future generations and since the health, safety and security of the people of the state are clearly at issue, exemption from coverage by the rule was not considered an option for minimizing the impact on local government and/or small business.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

To assist the State Fire Prevention and Building Code Council in the development of this proposed rule making, a technical subcommittee was established to review the 2006/2007 edition of the International Energy Conservation Construction Code, and to make recommendations for modifications. (The 2006/2007 edition of the International Energy Conservation Construction Code contains many provisions which are identical or substantially similar to those found in the 2009 IECC.) The International Energy Conservation Code technical subcommittee had participants from rural areas. Meetings of the subcommittee were open to the public and public participation was encouraged.

Meetings throughout the rule making process have included regulated parties and code enforcement personnel of local governments throughout New York State. Technical subcommittee meetings were open to the public and agendas and meeting minutes posted on the Department of State website. Proposed New York modifications made by the various Technical Subcommittees were posted on the Department of State website for public inspection. Public hearings will be held after a notice of proposed rulemaking has been published in the State Register in accordance with the provisions of the State Administrative Procedure Act.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS.

This rule making will amend the State Energy Conservation Construction Code (the "State Energy Code") to make the State Energy Code (1) a building energy code for residential buildings which is based on the 2009 edition of the International Energy Conservation Code (the "2009 IECC"), a model code developed and published by the International Code Council ("ICC"), and (2) a building energy code for commercial buildings which is based on the 2007 edition of ASHRAE-90.1 (the "2007 ASHRAE 90.1"), a standard published by the American Society Of Heating and Refrigeration and Air Conditioning Engineers. The State Energy Code, which is adopted pursuant to Article 11 of the Energy Law, is applicable in all areas of the State. Therefore, all areas of the State, including all rural areas, will be affected by this rule making.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES.

Construction documents are currently submitted when a building permit is requested. The energy compliance aspect is part of the construction documents. The State Energy Code, as amended by this rule making, will not change this procedure. Energy calculations may also currently be requested by code enforcement officers. This will remain under the amended State Energy Code.

Energy Law section 11-107 provides that the administration and enforcement of the provisions of the State Energy Code within any municipality shall be the responsibility of that governmental entity which is responsible for the administration and enforcement of the provisions of the building construction code or the fire prevention and building construction code applicable within such municipality. Executive Law section 381 provides that every city, town, and village of the State shall administer and enforce the State Uniform Fire Prevention and Building Code (the Uniform Code) within their boundaries except in limited specified circumstances. Consequently, most cities, towns and villages in the State are currently responsible for the administration and enforcement of the current State Energy Code within their boundaries, and will remain responsible for administering and enforcing the State Energy Code as amended by this rule making.

Local governments currently maintain inspection records. This will continue under the State Energy Code as amended by this rule making.

Regulated parties will continue to rely upon design, construction and energy conservation professionals to properly advise them of the requirements of the State Energy Code. Building owners typically rely on professionals for their expertise in building and energy conservation regulations.

3. COSTS.

The proposed rule making is intended to decrease energy use within New York State and increase energy savings to the consumer. The economic impact of the State Energy Code, as amended by this rule making, is expected to be beneficial rather than adverse. In any event, any economic impact associated with this rule making will not affect rural areas in a manner different from the rule's effect upon urban and suburban areas of the state.

4. MINIMIZING ADVERSE IMPACT.

This rule is performance based and requires that uniform standards be met for all areas of the state. It is anticipated that the impact on rural areas will be minimal.

This rule will require compliance and reporting requirements similar to those currently in place.

In order to assure a continuing supply of energy for future generations, and since the health, safety and security of the people of the state are clearly at issue, exemption from coverage by the rule was not considered an option for minimizing the impact on rural areas.

5. RURAL AREA PARTICIPATION.

To assist the State Fire Prevention and Building Code Council in the development of this proposed rule making, a technical subcommittee was established to review the 2006/2007 edition of the International Energy Conservation Construction Code, and to make recommendations for modifications. (The 2006/2007 edition of the International Energy Conservation Construction Code contains many provisions which are identical or substantially similar to those found in the 2009 IECC.) The International Energy Conservation Code technical subcommittee had participants from rural areas. Meetings of the subcommittee were open to the public and public participation was encouraged.

Meetings throughout the rule making process have included regulated parties and code enforcement personnel of local governments throughout New York State. Technical subcommittee meetings were open to the public and agendas and meeting minutes posted on the Department of State website. Proposed New York modifications made by the various Technical Subcommittees were posted on the Department of State website for public inspection. Public hearings will be held after a notice of proposed rulemaking has been published in the State Register in accordance with the provisions of the State Administrative Procedure Act.

Job Impact Statement

The Department of State has determined that it is apparent from the nature and purpose of the proposed rule making that it will not have a substantial adverse impact on jobs and employment opportunities. The rule making will amend the State Energy Conservation Construction Code (the “State Energy Code”) to make the State Energy Code (1) a building energy code for residential buildings which is based on the 2009 edition of the International Energy Conservation Code (the “2009 IECC”), a model code developed and published by the International Code Council (“ICC”), and (2) a building energy code for commercial buildings which is based on the 2007 edition of ASHRAE-90.1 (the “2007 ASHRAE 90.1”), a standard published by the American Society Of Heating and Refrigeration and Air Conditioning Engineers. Both the 2009 IECC and the 2007 ASHRAE 90.1 incorporate more current technology in the area of energy conservation. In addition, as a performance-based, rather than a prescriptive, code, the 2009 IECC provides for alternative methods of achieving code compliance, thereby allowing regulated parties to choose the most cost effective method. As a consequence, the Department of State and the State Fire Prevention and Building Code Council conclude that regulations based upon the 2009 IECC and the 2007 ASHRAE 90.1 will provide a greater incentive for the construction of new buildings and the rehabilitation of existing buildings than exists with the current State Energy Code. Therefore, this amendment will not have a substantial adverse impact on jobs and employment opportunities within New York. In fact, the proposed amendment may result in an increase in employment opportunities for those involved in testing and inspecting buildings for compliance with the building air sealing requirements of the amended State Energy Code.