DOS-47-15-00016-AA State Energy Conservation Construction Code (the Energy Code)  

  • 9/21/16 N.Y. St. Reg. DOS-47-15-00016-AA
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 38
    September 21, 2016
    RULE MAKING ACTIVITIES
    DEPARTMENT OF STATE
    AMENDED NOTICE OF ADOPTION
     
    I.D No. DOS-47-15-00016-AA
    Filing No. 829
    Filing Date. Sept. 01, 2016
    Effective Date. Oct. 03, 2016
    State Energy Conservation Construction Code (the Energy Code)
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Action taken:
    Repeal of Part 1240; and addition of new Part 1240 to Title 19 NYCRR.
    Amended action:
    This action amends the rule that was filed with the Secretary of State on March 22, 2016, to be effective October 3, 2016, File No. 00345. The notice of adoption, I.D. No. DOS-47-15-00016-A, was published in the April 6, 2016 issue of the State Register.
    Statutory authority:
    Energy Law, section 11-103(2)
    Subject:
    State Energy Conservation Construction Code (the Energy Code).
    Purpose:
    To repeal the existing Energy Code and to adopt a new, updated Energy Code.
    Substance of amended rule:
    This rule repeals the current version of Part 1240 of Title 19 of the NYCRR and adds a new version of Part 1240 (entitled “State Energy Conservation Construction Code”) in its place. The new version of Part 1240 is summarized below.
    Section 1240.1 (“State Energy Conservation Construction Code”) provides that Part 1240 and the publications incorporated by reference in Part 1240 constitute the State Energy Conservation Construction Code (the “Energy Code”) promulgated pursuant to Article 11 of the Energy Law.
    Section 1240.2 (“Definitions”) defines certain terms used in Part 1240, including:
    “2016 Energy Code Supplement” (the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code,” published by the New York State Department of State, publication date August, 2016);
    “2015 IECC” (the publication entitled “2015 International Energy Conservation Code,” published by the International Code Council, Inc. [Second Printing: May, 2015]);
    “2015 IECC Commercial Provisions” (that part of the 2015 IECC that is designated as the “IECC - Commercial Provisions”);
    “2015 IECC Commercial Provisions (as amended)” (the 2015 IECC Commercial Provisions, as said provisions are deemed to be amended by Part 1 of the 2016 Energy Code Supplement);
    “2015 IECC Residential Provisions” (that part of the 2015 IECC that is designated as the “IECC - Residential Provisions”);
    “2015 IECC Residential Provisions (as amended)” (the 2015 IECC Residential Provisions, as said provisions are deemed to be amended by Part 3 of the 2016 Energy Code Supplement);
    “ASHRAE 90.1-2013” (the publication entitled “Energy Standard for Buildings Except Low-Rise Residential Buildings,” standard reference number 90.1-2013, published by American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc., publication date July 2014);
    “ASHRAE Appendix G Excerpt” (the publication entitled “Standard 90.1 Appendix G 2013 Performance Rating Method, Excerpt from ANSI/ASHRAE/IES Standard 90.1-2013 (I-P),” published by ASHRAE, publication date 2015);
    “ASHRAE 90.1-2013 (as amended)” (ASHRAE 90.1-2013, as said publication is deemed to be amended by Part 2 of the 2016 Energy Code Supplement);
    “commercial building” (any building that is not a residential building, as defined in subdivision (p) of section 1240.2); and
    “residential building” (includes: (1) detached one-family dwellings having not more than three stories above grade plane; (2) detached two-family dwellings having not more than three stories above grade plane; (3) buildings that (i) consist of three or more attached townhouse units and (ii) have not more than three stories above grade plane; (4) buildings that (i) are classified in accordance with Chapter 3 of the publication entitled “2015 International Building Code,” published by the International Code Council, Inc. (Third Printing: October 2015), in Group R-2, R-3 or R-4 and (ii) have not more than three stories above grade plane; (5) factory manufactured homes (as defined in section 372(8) of the Executive Law); and (6) mobile homes (as defined in section 372(13) of the Executive Law).
    Other terms defined in section 1240.2 are “building,” “building system,” “dwelling unit,” “Energy Code,” “grade plane,” “historic building,” and “townhouse unit.”
    Section 1240.3 (“Amendments made by the 2016 Energy Code Supplement”) provides that for the purposes of applying the 2015 IECC Commercial Provisions, the 2015 IECC Residential Provisions, and ASHRAE 90.1-2013 in this State:
    (a) the 2015 IECC Commercial Provisions shall be deemed to be amended in the manner provided in Part 1 of the 2016 Energy Code Supplement;
    (b) ASHRAE 90.1-2013 shall be deemed to be amended in the manner provided in Part 2 of the 2016 Energy Code Supplement; and
    (c) the 2015 IECC Residential Provisions shall be deemed to be amended in the manner provided in Part 3 of the 2016 Energy Code Supplement.
    Section 1240.4 is entitled “Energy Code provisions applicable to Commercial Buildings.”
    Subdivision (a) of section 1240.4 (“2015 IECC Commercial Provisions (as amended)”) provides that except as otherwise provided in section 1240.6 (“Exceptions”) of Part 1240, the construction of all new commercial buildings; all additions to, alterations of, and/or renovations of existing commercial buildings; and all additions to, alterations of, and/or renovations of building systems in existing commercial buildings shall comply with the requirements of the 2015 IECC Commercial Provisions (as amended). Section 1240.4(a) also incorporates the 2015 IECC Commercial Provisions and the 2016 Energy Code Supplement by reference; specifies the name and addresses of the publishers where the 2015 IECC (which contains the 2015 IECC Commercial Provisions) and the 2016 Energy Code Supplement may be obtained; and specifies that those publications are available for public inspection and copying at the office of the New York State Department of State located at One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.
    Subdivision (b) of section 1240.4 (“ASHRAE 90.1-2013 (as amended)”) provides that to the extent provided in the 2015 IECC Commercial Provisions (as amended), compliance with the requirements of ASHRAE 90.1-2013 (as amended) shall be permitted in lieu of compliance with specified sections of the 2015 IECC Commercial Provisions (as amended). Subdivision (b) of section 1240.4 also incorporates ASHRAE 90.1-2013, the 2016 Energy Code Supplement, and the ASHRAE Appendix G Excerpt by reference; specifies the name and addresses of the publishers where ASHRAE 90.1-2013, the ASHRAE Appendix G Excerpt, and the 2016 Energy Code Supplement may be obtained; and specifies that those publications are available for public inspection and copying at the office of the New York State Department of State located at One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.
    Subdivision (c) of section 1240.4 (“Referenced standards”) provides that the referenced standards listed in Chapter 6 of the 2015 IECC Commercial Provisions (as amended) are considered to be part of the 2015 IECC Commercial Provisions (as amended), subject to the provisions and limitations set forth in Sections C106.1, C106.1.1, and C106.1.2 of the 2015 IECC Commercial Provisions (as amended).
    Subdivision (c) of section 1240.4 also incorporates the following referenced standards by reference, and provides that the following referenced standards shall be considered to be part of the 2015 IECC Commercial Provisions (as amended), subject to the provisions and limitations set forth in Sections C106.1, C106.1.1, and C106.1.2 of the 2015 IECC Commercial Provisions (as amended):
    (1) Room Fan Coil, publication date 2008 (“AHRI 440-08”), and Unit Ventilators, publication date 1998 (“AHRI 840-98”), published by the Air Conditioning, Heating, and Refrigeration Institute;
    (2) ASHRAE HVAC Systems and Equipment Handbook - 2012, publication date 2012 (“ASHRAE-2012”); Energy Standard for Buildings Except Low-Rise Residential Buildings, July 2014 printing (“ASHRAE 90.1-2013”); Peak Cooling and Heating Load Calculations in Buildings, Except Low-rise Residential Buildings, publication date 2014 (ANSI/ASHRAE/ACCA Standard 183-2007 [RA2014]); and the ASHRAE Appendix G Excerpt, published by American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc.;
    (3) Standard Test Method for Determining Air Leakage Rate by Fan Pressurization, publication date 2010 (“ASTM E 779-10”), and Standard Specification for Air Barrier (AB) Material or System for Low-Rise Framed Building Walls, publication date 2011 (“ATSM E 1677-11”), published by ASTM International;
    (4) North American Fenestration Standard / Specification for Windows, Doors and Unit Skylights, publication date 2011 (“AAMA / WDMA / CSA 101 / I.S.2 / A440-11”), published by Canadian Standards Association;
    (5) 2015 International Building Code (Third Printing: October 2015), 2015 International Fire Code (Third Printing: June 2015), 2015 International Fuel Gas Code (Third Printing: June 2015), 2015 International Mechanical Code (Third Printing: November 2015), 2015 International Plumbing Code (Third Printing: August 2015), 2015 International Property Maintenance Code (Fourth Printing: December 2015), and 2015 International Residential Code (Second Printing: January 2016), published by International Code Council, Inc.;
    (6) National Electrical Code, publication date 2014 (NFPA 70-14), published by National Fire Protection Association;
    (7) HVAC Air Duct Leakage Test Manual, publication date 1985 (“SMACNA-85”), published by Sheet Metal and Air Conditioning Contractors National Association, Inc.; and
    (8) Standard for Oil-Fired Central Furnaces, Ninth Edition, including revisions through April 22, 2010, publication date 2010 (“UL 727-06”) (Note: The Ninth Edition of this standard was originally published on April 7, 2006. The version of this standard incorporated herein by reference includes revisions through April 22, 2010, and was published in 2010); Oil-fired Unit Heaters—with Revisions through April 2010, original publication date 1995, with revisions published through 2010 (“UL 731-95), published by Underwriters Laboratory.
    Subdivision (c) of section 1240.4 also specifies the name and addresses of the publishers where the foregoing referenced standards may be obtained, and specifies that those publications are available for public inspection and copying at the office of the New York State Department of State located at One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.
    Section 1240.5 is entitled “Energy Code provisions applicable to Residential Buildings.”
    Subdivision (a) of section 1240.5 (“2015 IECC Residential Provisions (as amended)”) provides that except as otherwise provided in section 1240.6 (“Exceptions”) of Part 1240, the construction of all new residential buildings; all additions to, alterations of, and/or renovations of existing residential buildings; and all additions to, alterations of, and/or renovations of building systems in existing residential buildings shall comply with the requirements of the 2015 IECC Residential Provisions (as amended). Subdivision (a) of section 1240.5 also incorporates the 2015 IECC Residential Provisions and the 2016 Energy Code Supplement by reference; specifies that names and addresses of the publishers from which copies of the 2015 IECC (which includes the 2015 IECC Residential Provisions) and the 2016 Energy Code Supplement may be obtained, and specifies that the 2015 IECC and the 2016 Energy Code Supplement are available for public inspection and copying at the office of the New York State Department of State located at One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001.
    Subdivision (b) of section 1240.5 (“Referenced standards”) provides that the referenced standards listed in Chapter 6 of the 2015 IECC Residential Provisions (as amended) are considered to be part of the 2015 IECC Residential Provisions (as amended), subject to the provisions and limitations set forth in Sections R106.1, R106.1.1, and R106.1.2 of the 2015 IECC Residential Provisions (as amended). Subdivision (b) of section 1240.5 also provides that the following referenced standards are incorporated herein by reference and shall be considered to be part of the 2015 IECC Residential Provisions (as amended), subject to the provisions and limitations set forth in Sections R106.1, R106.1.1, and R106.1.2 of the 2015 IECC Residential Provisions (as amended):
    (1) Residential Load Calculation, Eighth Edition, publication date 2011 (“Manual J – 2011”), and Residential Equipment Selection, publication date 2013 (“Manual S—13”), published by Air Conditioning Contractors of America;
    (2) Method for Measuring Floor Area in Office Buildings, publication date 1996 (Z-65-96), published by American National Standards Institute;
    (3) ASHRAE Handbook of Fundamentals - 2013, publication date 2013 (“ASHRAE - 2013”), published by American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc.;
    (4) Standard Test Method for Determining Air Leakage Rate by Fan Pressurization, publication date 2010 (“ASTM E 779-10”), and Standard Test Method for Determining Air Tightness of Building Using an Orifice Blower, publication date 2011 (“ASTM E 1827-11”), published by ASTM International;
    (5) 2015 International Building Code (Third Printing: October 2015); 2015 International Fire Code (Third Printing: June 2015); 2015 International Fuel Gas Code (Third Printing: June 2015); 2015 International Mechanical Code (Third Printing: November 2015); 2015 International Plumbing Code (Third Printing: August 2015); 2015 International Property Maintenance Code (Fourth Printing: December 2015); 2015 International Residential Code (Second Printing: January 2016); Standard on the Design and Construction of Log Structures, publication date 2012 (“ICC 400–12”); 2006 International Energy Conservation Code, publication date 2006 (“IECC-2006”); and Energy Conservation Construction Code of New York State, publication date 2010, published by International Code Council, Inc.; and
    (6) National Electric Code, publication date 2014 (“NFPA 70-14”), published by National Fire Protection Association.
    Section 1240.6 (“Exceptions”) provides that the Energy Code shall not apply to the alteration or renovation of an historic building or to certain alterations of existing buildings, provided that the alteration will not increase the energy usage of the building. These exceptions mirror the provisions of Energy Law § 11-104(5) and Energy Law § 11-103(1)(b).
    Amended rule as compared with adopted rule:
    Nonsubstantive changes were made in section 1240.2(a).
    Text of amended rule and any required statements and analyses may be obtained from:
    Gerard Hathaway, Department of State, 99 Washington Avenue, Suite 1160, Albany, NY 12231, (518) 474-4073, email: gerard.hathaway@dos.ny.gov
    Summary of Revised Regulatory Impact Statement
    1. STATUTORY AUTHORITY.
    This Amended Rule amends the State Energy Conservation Construction Code (“Energy Code”). This Amended Rule is authorized by Energy Law § 11-103(2).
    2. LEGISLATIVE OBJECTIVES.
    The energy policy of the State is “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 § 3-101(2)). In furtherance of that policy, the Energy Code is intended “to protect the health, safety and security of the people of the State and to assure a continuing supply of energy for future generations [by mandating] 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 § 11-101).
    Energy Law § 11-103(2) provides that the Energy Code, as amended from time to time, should remain “cost effective” with respect to building construction and that in determining whether the Energy Code remains cost effective, the State Fire Prevention and Building Code Council (the Code Council1) “shall consider whether 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.”
    Energy Law § 11-103(2) provides that the Energy Code for commercial buildings must meet or exceed the 2007 edition of the “Energy Standard for Buildings Except Low-Rise Residential Buildings” (ASHRAE 90.1), or achieve equivalent or greater energy savings; and that the Energy Code for residential buildings must meet or exceed the then most recently published edition of the “International Energy Conservation Code” (the IECC), or achieve equivalent or greater energy savings.
    Title III of the Energy Conservation and Production Act (ECPA) provides that when the U.S. Department of Energy (DOE) determines that commercial buildings constructed to a revised edition of ASHRAE 90.1 would achieve greater energy efficiency than buildings constructed to the prior edition of ASHRAE 90.1, states are required to update their energy codes for commercial buildings to codes that meet or exceed the revised ASHRAE 90.1. DOE has determined that the most recent edition of ASGRAE 90.1 (ASHRAE 90.1-2013) would achieve greater energy efficiency than the prior edition (ASHRAE 90.1-2010).
    Based on the studies more fully described in Part 3 (Needs and Benefits) below, the Department of State (DOS) and the Code Council have determined that this Amended Rule will (1) make the Energy Code for residential buildings equal to or exceed the most recent (2015) edition of the IECC; (2) make the Energy Code for commercial buildings equal to ASHRAE 90.1-2013; (3) result in significant savings in energy usage; (4) be cost effective; and (5) on average, will pay back increased construction costs through savings in energy costs in less than 10 years.
    3. NEEDS AND BENEFITS.
    Purpose. The purpose of this Amended Rule is to amend and update the Energy Code to a code that equals or exceeds ASHRAE 90.1-2013 (for commercial buildings) and a code that equals or exceeds the 2015 IECC (for residential buildings).
    Necessity. This Amended Rule is necessary to encourage conservation of energy in the construction and operation of new commercial and industrial buildings; and otherwise to help achieve the legislative objectives summarized in Part 2 (Legislative Objectives) above.
    Benefits. The principal benefits to be derived from this Amended Rule will be (1) the reduction in the energy used by buildings that comply with the Energy Code as amended by this Amended Rule (the “Amended Energy Code”), and (2) the savings in energy costs to be realized by owners of buildings that comply with the Amended Energy Code. Other benefits to be derived from this Amended Rule include the following:
    DOS anticipates that the Amended Energy Code, will be cost effective, and that on average, building owners will receive a net economic benefit from the adoption of this Amended Rule. More specifically, DOS anticipates that, on average, when comparing a building constructed to the requirements of the Amended Energy Code to a similar building constructed to the requirements of the current version of the Energy Code (the Current Energy Code), the present value of the annual savings in energy costs over a 30-year period will exceed the sum of (1) the increase in initial construction costs, plus (2) the present value of the increase in maintenance costs over that 30-year period, plus (3) the present value of the increase in replacement costs over that 30-year period.
    DOS anticipates that, on average, the increase in initial construction costs resulting from constructing a building to the requirements of the Amended Energy Code rather than the requirements of the Current Energy Code will be less than the present value of the savings in energy costs over 10 years.
    DOS anticipates that many other states will update their building energy codes for commercial buildings to codes that meet or exceed ASHRAE 90.1-2013 and update their building energy codes for residential buildings to codes that meet or exceed the 2015 IECC. This Amended Rule will assure that energy conservation construction practices in the State remain consistent with national practices, which should make it easier and less expensive for regulated parties to comply with the Energy Code.
    By reducing energy demands in a cost effective manner, this Amended Rule should reduce the growth in the use of energy produced from nonrenewable sources, reduce dependence on imported fossil fuels, and reduce emissions produced by use of fossil fuels.
    Studies used. The studies, reports, and analyses which served as the basis for this Amended Rule include:
    Commercial Buildings.
    (1) Notice of Determination issued by the U.S. Department of Energy (“DOE”) and published in the Federal Register on September 26, 2014 in 79 Federal Register at 57900.2 This Notice (hereafter referred to as the “DOE Commercial Notice of Determination”) indicates that (1) DOE has determined that buildings constructed to the requirements of ASHRAE 90.1-2013 would achieve greater energy efficiency than buildings constructed to the requirements of ASHRAE 90.1-2010 and (2) based on its quantitative analysis, DOE anticipates national source energy savings of approximately 8.5 percent of commercial building energy consumption and site energy savings of approximately 7.6 percent. See 79 Federal Register 57900 (September 26, 2014) at 57912.
    (2) National Cost-effectiveness of ANSI/ASHRAE/IES Standard 90.1-2013 published by Pacific Northwest National Laboratory (“PNNL”), Richland, WA (publication date January 2015).3 This study (hereinafter referred to as the “PNNL National Cost-Effectiveness Study” or “PNNL-23824”) builds on an earlier technical report issued by PNNL, entitled ANSI/ASHRAE/IES Standard 90.1-2013 Determination of Energy Savings: Quantitative Analysis (Halverson et al. 2014),4 which analyzed sixteen building prototype EnergyPlus building models in 15 climate locations representing all eight U.S. climate zones. The PNNL National Cost-Effectiveness Study “used a subset of prototypes and climate locations, providing coverage of nearly all of the changes in Standard 90.1 from the 2010 to 2013 edition that affect energy savings, equipment and construction costs, and maintenance, including conventional HVAC systems used in commercial buildings” (PNNL National Cost-Effectiveness Study, at page iv). Specifically, the PNNL National Cost-Effectiveness Study considered six commercial building prototypes (small office, large office, standalone retail, primary school, small hotel, and mid-rise apartment) in five climate zones, including two (4A and 5A) of the three climate zones found in New York State. The principal characteristics of the six building prototypes studied in the PNNL National Cost-Effectiveness Study are as set forth in Table 2.4 of the PNNL National Cost-Effectiveness Study.
    The PNNL National Cost-Effectiveness Study analyzed the differences in energy usage in the six building prototypes constructed to the requirements of ASHRAE 90.1-2013 compared to similar buildings constructed to the requirements of ASHRAE 90.1-2010; the annual energy cost savings that will result from the reduction in energy usage; the “first costs” (i.e., the increase [or decrease] in the cost of constructing a building that complies with ASHRAE 90.1-2013 compared to the cost of constructing a building that complies with ASHRAE 90.1-2010); and the changes in the costs of maintaining and replacing equipment in a building that complies with ASHRAE 90.1-2013 compared to the costs of maintaining and replacing equipment in a building that complies with ASHRAE 90.1-2010.
    (3) Cost Estimate Spreadsheet Workbook, as revised, prepared by PNNL to accompany the PNNL National Cost-Effectiveness Study.5 This Workbook (hereinafter referred to as the “PNNL Cost Estimate Spreadsheet Workbook”) includes a spreadsheet showing electrical energy cost savings and natural gas cost savings of buildings constructed to ASHRAE 90.1-2013, as compared with buildings constructed to ASHRAE 90.1-2010. That spreadsheet also shows the energy costs of buildings constructed to ASHRAE 90.1-2010 and buildings constructed to ASHRAE 90.1-2013 and the energy cost savings that will result from constructing a building to ASHRAE 90.1-2013 rather than ASHRAE 90.1-2010.
    (4) Cost-Effectiveness of ASHRAE Standard 90.1-2013 for the State of New York, prepared by PNNL (publication date April 2015). This study (hereinafter referred to as the “PNNL New York Cost-Effectiveness Study” or “PNNL-24223”) considers the six commercial building prototypes examined in the PNNL National Cost-Effectiveness Study mentioned above in the three climate zones in New York State, and applies weighting factors to take into account the relative number of each such building prototype constructed in each such climate zone. The PNNL New York Cost-Effectiveness Study indicates that the “simple payback period” (i.e., the time required for the savings in energy costs to equal the “incremental first costs”) will range from a low of “immediate” (in cases where the “incremental first costs” are negative, i.e., where initial construction costs are decreased) to a high of 27.1 years. However, when considering the weighted averages of those six commercial building prototypes:
    (a) the weighted average annual energy cost savings as a result of construction complying with ASHRAE 90.1-2013 rather than ASHRAE 90.1-2010 would be $0.154 per square foot;
    (b) the weighted average increase in construction costs as a result of construction complying with ASHRAE 90.1-2013 rather than ASHRAE 90.1-2010 would be $0.595 per square foot; and
    (c) the weighted average “simple payback period” would be approximately 3.9 years.
    The PNNL New York Cost-Effectiveness Study also includes an analysis of two “Life Cycle Cost” (or “LCC”) scenarios. Both scenarios consider increases (or decreases) in initial construction costs, the present value (over 30 years) of savings in energy costs, the present value (over 30 years) of increases (or decreases) maintenance costs, and the present value (over 30 years) of increases (or decreases) in replacements costs. Scenario 1, which represents publicly owned buildings, does not reflect borrowing costs or taxes. Scenario 2, which represents privately owned buildings, does reflect borrowing costs and tax impacts. The PNNL New York Cost-Effectiveness Study indicates that the weighted average LCC savings will be $2.11 per square foot for Scenario 1 (publically owned buildings) and $1.92 per square foot for Scenario 2 (privately owned buildings). See Tables 2, 3, and 4 in the PNNL New York Cost-Effectiveness Study.
    (5) Rulemaking Support to the NYS Department of State for the NYS Energy Conservation Construction Code and 2015 International Energy Conservation Code prepared by Vidaris, Inc., dated June 16, 2015. This report (hereinafter referred to as the “Vidaris Report”) refines the information in the PNNL National Cost-Effectiveness Study and the PNNL Cost Estimate Spreadsheet Workbook to better reflect the impact this Amended Rule will have in this State:
    First, the Vidaris Report re-computes the energy cost savings using the average energy costs to New York State commercial customers, as reported by the U.S. Energy Information Administration. The costs used for this re-computation of energy cost savings were $0.1535 per kWh for electricity6 and $7.98 per 1,000 cubic feet (or $0.7763 per therm) for natural gas.7
    Second, for the purposes of computing the present value of the expected energy savings, the Vidaris Report uses the “Uniform Present Value” factors for Census Region 1 (which includes New York State) as shown in the publication entitled Energy Price Indices and Discount Factors for Life-Cycle Cost Analysis – 2013 Annual Supplement to NIST Handbook 135 and NBS Special Publication 709, published by National Institute of Standards and Technology.8 The factors used to compute the present value of electrical energy cost savings are 8.32 (for 10 years) and 19.50 (for 30 years), and the factors to be used to compute the present value of natural gas energy cost savings are 8.93 (for 10 years) and 22.92 (for 30 years).
    Third, the Vidaris Report shows: (1) for each of the six commercial building prototypes in Climate Zones 4A and 5A, the “net savings” over ten years; and (2) for Climate Zones 4A and 5A, the aggregate “net savings” based on the weighting factors developed by PNNL based on construction volume by building type and climate zone.
    Finally, the Vidaris Report shows, for each of the six commercial building prototypes in Climate Zones 4A and 5A: (1) the increase (or decrease) in initial construction costs (the “first costs”); (2) the present value (over 30 years) of the expected increase (or decrease) in replacement costs; (3) the present value (over 30 years) of the expected increase (or decrease) in maintenance costs; (4) the present value (over 30 years) of the expected savings in energy costs; and (5) the present value (over 30 years) of the net benefit of a building constructed to the requirements of ASHRAE 90.1-2013 compared to a building constructed to the requirements of ASHRAE 90.1-2010.
    Residential Buildings.
    (1) Notice of Determination issued by DOE and published in the Federal Register on June 11, 2015 in 80 Federal Register at 33250.9 This Notice of Determination (hereinafter referred to as the “DOE Residential Notice of Determination”) indicates that (1) DOE has determined that buildings constructed to the requirements of the 2015 IECC would achieve greater energy efficiency than buildings constructed to the requirements of the 2012 IECC and, based on its quantitative analysis, DOE anticipates national source energy savings of approximately 0.87 percent of residential building energy consumption and site energy savings of approximately 0.98 percent of residential building energy consumption. See 80 Federal Register 33250 (June 11, 2015) at 33261.
    (2) Energy Use Savings for a Typical New Residential Dwelling Unit Based on the 2009 and 2012 IECC as Compared to the 2006 IECC, published by PNNL (publication date April 2013).10 This report (hereinafter referred to as the “PNNL Energy Savings Report” or “PNNL-88603”) averages the energy use savings for a typical new residential dwelling unit based on the 2009 and 2012 IECC compared to the 2006 IECC. Since the provisions of the Energy Code currently applicable to residential buildings are based on the 2009 IECC, energy savings in the 2012 IECC compared to the 2009 IECC are part of the basis for examining energy savings that would result from adopting the proposed rule. Information extracted from Table 1 of the PNNL Energy Savings Report demonstrates that annual source energy use (in million Btu) would decline from 139 to 103 in Zone 4, from 154 to 114 in Zone 5 and from 179 to 126 in Zone 6. This indicates source energy savings of approximately 25.9 percent in Zones 4 and 5, and 29.6 percent in Zone 6. This is consistent with national average energy savings of approximately 24.1 percent between 2009 IECC and 2012 IECC.
    (3) Cost-Effectiveness Analysis of the Residential Provisions of the 2015 IECC for the State of New York, published by PNNL (publication date December 2014).11 This analysis (hereinafter referred to as the “PNNL Residential Cost-Effectiveness Analysis” or “PNNL-23940”) follows the DOE methodology for determining energy savings and cost-effectiveness of various residential building energy codes.12 It compares the prescriptive and mandatory provisions of the 2015 IECC to those in the 2009 IECC; as such, it does not include the new Energy Rating Index compliance alternative within the scope of its review. The PNNL Residential Cost-Effectiveness Analysis contains three main parts:
    Section 2 in the PNNL Residential Cost-Effectiveness Analysis identifies the code changes between 2009 IECC and 2015 IECC applicable to residential single-family and low-rise multifamily buildings. The PNNL residential prototype building models are customized to reflect the requirements of the 2009 and 2015 editions of the IECC applicable to the State of New York. Representative locations for each IECC climate-zone occurring in the State of New York are identified to represent the variability in construction and energy code requirements throughout the state. Energy savings of the 2015 IECC over the baseline 2009 IECC are calculated and converted to energy costs using latest fuel prices specific to the State of New York.
    Section 3 of the PNNL Residential Cost-Effectiveness Analysis documents the estimated incremental costs associated with the code changes identified in Section 2 (Energy Analysis) of the PNNL Residential Cost-Effectiveness Analysis. Section 3 then calculates the Life Cycle Cost (LCC), simple payback period, and annual consumer cash flow for the requirements set by the 2015 IECC over the 2009 IECC.
    Section 4 of the PNNL Residential Cost-Effectiveness Analysis summarizes the energy and consumer benefits of the 2015 IECC compared to the 2009 IECC for each climate-zone within the State of New York as well as the average results for the whole State of New York.
    (4) State Code Status: Vermont, prepared by the Building Codes Assistance Project, posted on-line at http://bcap-ocean.org/code-status/state/vermont/ (accessed August 2016). This site describes the code adoption and change process in Vermont, the history of Vermont’s residential building energy standards (RBES), the Vermont comprehensive energy plan, and alternative prescriptive packages developed by the Vermont Public Service Department and deemed by Vermont to be equivalent, including one with insulation with R25 in the cavity wall only for climate zone 6.
    (5) Vermont Residential Building Energy Standards (RBES) Update, prepared by the Vermont Department of Public Service.
    (6) Proposal RE28-16 to amend the 2015 International Energy Code (Residential Provisions), prepared by Tom Kositzky and Greg Johnson, representing the Coalition for Fair Energy Codes, Mark Halverson, Representing APA, and Loren Ross, representing the American Wood Council. Proposal RE28-16 includes calculations and software outputs that demonstrate that the new prescriptive insulation option for residential buildings in Climate Zone 6 to be added by the Amended Rule provides energy performance that essentially meets (within 0.4%) the energy performance of the other prescriptive options provided in Section R402.1.2 and Table R402.1.2 of the 2015 IECC Residential Provisions.
    Explanation of how studies were used. DOS used the studies, reports, and analyses described above to determine the initial costs of compliance with this Amended Rule and the ongoing costs of continuing to comply with this Amended Rule, and to determine that:
    (1) this Amended Rule would reduce energy use by commercial buildings and residential buildings;
    (2) the Amended Energy Code will meet or exceed ASHRAE 90.1-2007 (for commercial buildings) and meet or exceed the 2015 IECC (for residential buildings);
    (3) adoption of this Amended Rule is necessary to assure that the Energy Code will comply with Title III of the ECPA;
    (4) the Amended Energy Code, will be cost effective;
    (5) the weighted average of the “first costs” associated with compliance with the Amended Energy Code will be less than the weighted average of the present value of the energy cost savings that can be expected in a ten year period, and
    (6) the new prescriptive insulation option for residential buildings in Climate Zone 6 to be added to by this Amended Rule to Section R402.1.2 and Table R402.1.2 of the 2015 IECC Residential Provisions will provide will provide energy performance that essentially meets (within 0.4%) the energy performance of the other prescriptive options provided in Section R402.1.2 and Table R402.1.2.
    4. COSTS
    a. Costs to Regulated Parties.
    Implementation Costs – “First Costs”. In general, the costs to regulated parties for implementing this Amended Rule will include the “first costs,” i.e., the increase (or decrease) in the costs of constructing a building to the requirements of Amended Energy Code rather than the requirements of the Current Energy Code.
    For the six commercial building prototypes studied in the PNNL National Cost-Effectiveness Study in Climate Zones 4A and 5A, the “first costs” range from an increase of $221,481 (for a primary school in Zone 4A) to a decrease of $996,504 (for a large office building in Zone 5A).
    For the four residential building prototypes studied in the PNNL Cost-Effectiveness Analysis, the “first costs” range from an increase of $3,592 (for a multifamily prototype with either a slab, unheated basement or crawlspace or a heated basement in Zone 6A) to an increase of $1,004 (for a multifamily prototype with either a slab, unheated basement or crawlspace or a heated basement in Zone 5A).
    Other Implementation Costs. A copy of the 2015 IECC costs approximately $44. A copy of ASHRAE 90.1-2013 costs approximately $135. Both publications can also be purchased as a package from ICC at a cost of approximately $149. DOS will make the 2016 Energy Code Supplement available by download from the Department’s website, free of charge.
    Continuing Compliance Costs. In general, the ongoing costs of continuing to comply with this Amended Rule will consist of the change (increase or decrease) in (1) the cost of maintaining energy-related systems and equipment and (2) the cost of periodic replacement of energy-related systems and equipment.
    For commercial buildings, DOS anticipates that the present value (over 30 years) of the change in replacement costs range from an increase of $992 (for a primary school in Zone 5A) to a decrease of $138,295 (for a large office building in Zone 4A), and the present value (over 30 years) of the change in maintenance costs range from an increase of $46,163 (for a large office building in Zone 4A) to a decrease of $2,371 (for a small hotel in Zone 4A).
    For residential buildings, DOS anticipates that there will be no significant differences between ongoing maintenance and replacement costs and, accordingly, DOS anticipates that in the case of a residential building, there will be no significant continuing compliance costs associated with this Amended Rule.
    b. Costs to DOS, the State, and Local Governments.
    DOS’s Division of Building Standards and Codes (“DBSC”) will offer training on the Amended Energy Code to code enforcement personnel, registered design professionals, and other interested parties. However, offering such training is part of the DBSC’s core mission, and DOS anticipates that DBSC will be able to offer such training using its existing staff and facilities, at no significant additional cost to the agency.
    Local governments (cities, towns, and villages), counties and State agencies that are currently required by other existing law to administer and enforce the Energy Code will continue to be required by other existing law to administer and enforce the Amended Energy Code. DOS does not anticipate that this Amended Rule will have any significant impact on the existing code administration and enforcement obligations.
    Local governments, counties, and State agencies that currently administer and enforce the Energy Code will be required to ensure that their code enforcement personnel receive training on the Amended Energy Code. However, DOS anticipates that code enforcement personnel will be able to receive such training as part of the annual “in-service” code training they are already required to receive by other existing law.
    Local governments, counties, and State agencies that currently administer and enforce the Energy Code will be required to purchase one or more copies of the 2015 IECC (about $44) and one or more copies of ASHRAE 90.1-2013 (about $135). Both publications can also be purchased as a package from ICC at a cost of approximately $149. The 2016 Energy Code Supplement will be made available by download from the Department’s website, free of charge.
    Local governments, counties, and State agencies that construct buildings for their own use will be required to comply with the Amended Energy Code. The costs and benefits for a local government, county or State agency constructs a building for its own use should be substantially similar to the costs and benefits realized by any other regulated party.
    5. LOCAL GOVERNMENT MANDATES.
    Existing law makes most local governments (cities, towns, and villages) and certain counties responsible for enforcing the Energy Code. This Amended Rule will not change the existing code enforcement responsibilities of any local government or county.
    Local governments and counties that currently administer and enforce the Energy Code will be required to ensure that their code enforcement personnel receive training on the Amended Energy Code. However, code enforcement personnel are already required by regulation to receive annual “in-service” code training. DOS anticipates that code enforcement personnel will be able to receive training on the Amended Energy Code as part of the already required in-service training.
    Local governments and counties that construct buildings for their own use are required to comply with the Current Energy Code, and will be required to comply with the Amended Energy Code.
    6. PAPERWORK.
    This Amended Rule will not add any new or additional reporting or paperwork requirements, except as follows:
    (1) This Amended Rule will require that reports verifying compliance with air leakage testing provisions of section R402.4.1.2 of the 2015 IECC Residential Provisions (as amended) be submitted to and retained by the code enforcement official.
    (2) This Amended Rule will clarify that certain drawings, manuals, and other data relating to lighting systems and equipment must be provided to the owner of a commercial building.
    7. DUPLICATION.
    DOS believes that this Amended Rule does not duplicate or conflict with any rule or other legal requirement of the State or the Federal government.
    8. ALTERNATIVES.
    Adopting ASHRAE 90.1-2013 as the new Energy Code for commercial buildings was considered. This alternative was not selected because adopting the “commercial provisions” of the 2015 IECC (as amended by the 2016 Energy Code Supplement) provides flexibility to building owners and design professionals, while still assuring that the Energy Code for commercial buildings meets or exceeds ASHRAE 90.1-2013.
    Adopting the 2015 IECC Commercial Provisions and ASHRAE 90.1-2013, without change, as the new Energy Code for commercial buildings, and adopting the 2015 IECC Residential Provisions, without change, as the new Energy Code for residential buildings were considered. However, these alternatives were not selected because it was determined that the 2015 IECC and ASHRAE 90.1-2013 must be amended to comply with Title III of the EPCA and with Article 11 of the Energy Law.
    9. FEDERAL STANDARDS.
    This Amended Rule will not cause the Energy Code to violate or exceed any applicable Federal standard.
    10. COMPLIANCE SCHEDULE.
    This Amended Rule will be effective on the date on which the Original Rule would have become effective, i.e. on October 3, 2016. DOS anticipates that regulated parties will be able to comply with the amended the Energy Code immediately upon the Amended Rule becoming effective.
    _______________
    1 The Code Council is a council established within the Department of State. See Executive Law § 374(1).
    2 http://www.gpo.gov/fdsys/pkg/FR-2014-09-26/pdf/2014-22882.pdf
    3 http://www.energycodes.gov/sites/default/files/documents/Cost-effectiveness_of_ASHRAE_Standard_90-1-2013-Report.pdf (accessed February, 2015)
    4 http://www.pnnl.gov/main/publications/external/technical_reports/PNNL-23479.pdf
    5 http://www.energycodes.gov/sites/default/files/documents/Cost-effectiveness_of_ASHRAE_Standard_90-1-2013-Cost_Estimate.zip (accessed March 2, 2015)
    6 http://www.eia.gov/electricity/sales_revenue_price/pdf/table4.pdf (accessed April 23, 2015)
    7 http://eia.gov/tools/faqs/faq.cfm?id=45&t=8 and http://eia.gov/forecasts/aeo/pdf/appg.pdf (accessed April 23, 2015). In 2013, the approximate heat content of natural gas consumed by end-use sectors was 1,028 Btu / cubic foot. One therm equals 100,000 Btu. Using these factors, dividing the natural gas price per 1,000 cubic feet by 10.28 give the natural gas price per therm: $7.98 per 1,000 cubic feet divided by 10.28 equals $0.7763 per therm.
    8 http://dx.doi.org/10.6028/NIST.IR.85-3273-28
    9 http://www.gpo.gov/fdsys/pkg/FR-2015-06-11/pdf/2015-14297.pdf
    10 http://www.energycodes.gov/sites/default/files/documents/NationalResidentialEnergyAnalysis.pdf (accessed March 9, 2015)
    11 http://www.pnnl.gov/main/publications/external/technical_reports/PNNL-23940.pdf (accessed March 9, 2015)
    12 Methodology for Evaluating Cost-Effectiveness of Residential Energy Code Changes (Taylor et al. 2012), https://www.energycodes.gov/sites/default/files/documents/residential_methodology.pdf
    Revised Regulatory Flexibility Analysis
    On March 9, 2016, the State Fire Prevention and Building Code Council (the “Code Council”) adopted a rule (the “Original Rule”) that amends and updates the State Energy Conservation Construction Code (the “Energy Code”). The Notice of Adoption of the Original Rule was published in the State Register on April 6, 2016. The effective date of the Original Rule is October 3, 2016.
    The Original Rule made non-substantive changes to the rule text as originally proposed. The non-substantive changes made to the rule text between the publication of the original Notice of Proposed Rule Making and the filing of the Notice of Adoption of the Original Rule are described in the “Statement Explaining Why Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not Required” attached to and published with that Notice of Adoption.
    On August 25, 2016, the Code Council adopted this rule (the “Amended Rule”), which amends the Original Rule. The Amended Rule makes the non-substantive changes to the Original Rule described below.
    The Department of State (DOS) believes that the changes made to Original Rule by this Amended Rule are non-substantive, do not affect the issues addressed in the original Regulatory Flexibility Analysis for Small Businesses and Local Governments (the “RFASBLG”), and do not necessitate any changes to the original RFASBLG or to the Summary of the RFASBLG as published in the original Notice of Proposed Rule Making.
    The changes made to the Original Rule by this Amended Rule are described as follows:
    The Original Rule incorporated the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code” (Publication date: March 2016) (hereinafter referred to as the “Original 2016 Energy Code Supplement”) by reference into 19 NYCRR Part 1240. The Amended Rule incorporates the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code (Revised August 2016)” (Publication date: August 2016) (hereinafter referred to as the “Revised 2016 Energy Code Supplement”) by reference into 19 NYCRR Part 1240. In this Amended Rule, subdivision (a) of 19 NYCRR Section 1240.2, which defines the term “2016 Energy Code Supplement,” is amended to read as follows:
    “(a) 2016 Energy Code Supplement. The term “2016 Energy Code Supplement” means the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code (Revised August 2016)” (Publication Date: August, 2016) published by the New York State Department of State.”
    The following changes result from incorporating the Revised 2016 Energy Code Supplement, rather than the Original 2016 Energy Code Supplement, into 19 NYCRR Part 1240:
    Item numbers in the Revised 2016 Energy Code Supplement include a prefix to indicate “Part” of the 2016 Energy Code Supplement in which the section appears. For example, Items in Part 1, which amends the Commercial Provisions of the 2015 IECC, are numbered “1.1,” “1.2,” etc.
    A number of misspellings in the Original 2016 Energy Code Supplement have been corrected in the Revised 2016 Energy Code Supplement.
    References in the Original 2016 Energy Code Supplement to the “2016 Supplement to the New York State Uniform Fire Prevention and Building Code” have been corrected in the Revised 2016 Energy Code Supplement to reflect the correct name of that publication (the “2016 Uniform Code Supplement”).
    The following changes were made to sections in the Revised 2016 Energy Code Supplement:
    Changes in Part 1
    In Item 1.7, the terms “commercial building,” “historic building,” and “2015 International Property Maintenance Code (as amended)” were added to the list of definitions added or amended by section 1.7.
    In Item 1.8, which amends section C302.2 of the 2015 IECC Commercial Provisions, a note was added to clarify that Item 1.8 does not delete or amend section C303.2.1 of the 2015 IECC Commercial Provisions.
    In Item 1.9, which amends section C401.2 of the 2015 IECC Commercial Provisions, a note was added to clarify that Item 1.9 does not delete or amend section C401.2.1 of the 2015 IECC Commercial Provisions.
    Item 1.10 was revised to correct the numbering of the new section added by section 1.10 (“C402.2.6” was changed to “C402.6.7”). In addition, a note was added to clarify that Item 1.10 does not delete or amend sections C402.2.1, C402.2.3, C402.2.4, C402.2.5 or C402.2.6 of the 2015 IECC Commercial Provisions.
    In Item 1.12, the caption was revised to correct the reference to the section in the 2015 IECC Commercial Provisions amended by section 1.13 (“C402.4.1” was changed to “C402.4.2”).
    In Item 1.13, the caption was revised and word “stove” was changed to “stoves.”
    In Item 1.18, the description of the publication known as “ASHRAE Appendix G Excerpt – 2015” was changed to reflect more accurately the manner in which that publication is referenced in the 2015 IECC Commercial Provisions (as amended).
    In Item 1.19, the word “paragraphs” was changed to “Items.”
    Changes in Part 2
    Item 2.2, which amends section 4.2.1.1 of ASHRAE 90.1-2013, was revised to clarify that the new item “c” added by Item 2.2 is one of three paths permitted by section 4.2.1.1 of ASHRAE 90.1-2013; to correct the formula for “PCIt” (the second equal sign was changed to a plus sign); and to add a new description of how “regulated energy cost” and “unregulated energy cost” are to be calculated.
    Item 2.3 was revised to correct the reference to the section in ASHRAE 90.1-2013 that is amended by section 2.3 (“4.1.2.3” was changed to “4.2.1.3” in two places).
    Item 2.5 was revised to correct the reference to the section in ASHRAE 90.1-2013 that is amended by Item 2.5 (“8.41” was changed to “8.4.1” in two places), to add the exception for circuits used for emergency services (the exception was inadvertently omitted from the Original 2016 Energy Code Supplement), and to clarify the fact that sections 8.4.1.1 and 8.4.1.2 of ASHRAE 90.1-2013 are not included in section 8.4.1 of ASHRAE 90.1-203 as amended by Item 2.5 of the Revised 2016 Energy Code Supplement.
    In Item 2.7, the word “paragraphs” was changed to “Items.”
    Changes in Part 3
    Item 3.3 amends and restates Chapter 1 of the 2015 IECC Residential Provisions. In the portion of Item 3.3 that amends and restates section R101.1 of the 2015 IECC Residential Provisions, a reference in the final line to the “2015 IECC” was corrected to be a reference to the “2016 Energy Code Supplement.”
    In Item 3.5, the terms “historic building” and “2015 International Property Maintenance Code (as amended)” were added to the list of definitions added or amended by Item 3.5, and the definition of “residential building” was corrected by changing the reference to the “2010 Building Code of New York State” to a reference to the “2015 International Building Code (as amended).
    In Item 3.6, which amends section R303.2 of the 2015 IECC Residential Provisions, a note was added to clarify that Item 3.6 does not delete or amend section R303.2.1 of the 2015 IECC Residential Provisions.
    Item 3.7 of the Revised 2016 Energy Code Supplement amends sections R402.1, R402.1.1, and R402.1.2 of the 2015 IECC Residential Provisions. The amendments of sections R402.1 and R402.1.1 are the same as the amendments made in items 7 and 8 of Part 3 of the Original 2016 Energy Code Supplement. The amendment of section R402.1.2 is new. Amended section R402.1.2 provides that buildings in climate zone 6 may comply with either of the two rows for climate zone 6 in Table R402.1.2. In addition, a note was added to Item 3.7 to clarify that Item 3.7 does not delete or amend sections R402.1.3, R402.1.4 or R402.1.5 of the 2015 IECC Residential Provisions.
    Item 3.8 adds a new row for Climate Zone 6 to Table R402.1.2 of the 2016 IECC Residential Provisions. The new row provides a new option for Climate Zone 6, which allows the use of R-25 cavity-only insulation in wood frame walls, provided that (1) the fenestration U-factor is reduced to 0.28 and (2) the R-value of the insulation in the basement wall and in the crawl space wall is increased from 15/19 to 15/20. Based on recently developed studies and information relating to the Vermont Residential Building Energy Standards (RBES), the Department of State now believes that this additional option for buildings in climate zone 6 meets the REScheck compliance path and does not constitute a substantial change to the Original Rule.
    In Item 3.10, a note was added to refer to Item 3.14 for a more complete description of the effect of Items 3.10 through 3.14 on Section R402.4 (including sections R402.4.1, R402.4.1.1, R402.4.1.2, R402.4.1.3, R402.4.2, R402.4.3, R402.4.4, R402.4.5, and R402.4.6) of the 2015 IECC Residential Provisions.
    In Item 3.14, references to section numbers were corrected (“C402.4” was changed to “R402.4” and “C402.4.6” was changed to “R402.4.6”). In addition, a note was added to clarify that sections R402.4.1, R402.4.1.1, R402.4.3, R402.4.4, and R402.4.5 of the 2015 IECC Residential Provisions were not deleted or amended by Items 3.10 through 3.14 of the Revised 2016 Energy Code Supplement, and to summarize the effect of Items 3.10 through 3.14 on Section R402.4 (including sections R402.4.1, R402.4.1.1, R402.4.1.2, R402.4.1.3, R402.4.2, R402.4.3, R402.4.4, R402.4.5, and R402.4.6) of the 2015 IECC Residential Provisions.
    In Item 3.15, which amends section R403.3.2 of the 2015 IECC Residential Provisions, a note was added to clarify that Item 3.15 does not delete or amend section R403.3.2.1 of the 2015 IECC Residential Provisions.
    In Item 3.16, which amends section R403.6 of the 2015 IECC Residential Provisions, a note was added to clarify that section 3.16 does not delete or amend Item R403.6.1 of the 2015 IECC Residential Provisions.
    Item 3.20 was revised to clarify its meaning (“Compliance with this section requires that the mandatory provisions identified in Sections R401.2 and R403.5.3 be met” was changed to “Compliance with this section requires that (1) the provisions in Sections R401 through R404 labeled as ‘mandatory’ and (2) the provisions of Section R403.5.3 be met”).
    Revised Rural Area Flexibility Analysis
    On March 9, 2016, the State Fire Prevention and Building Code Council (the “Code Council”) adopted a rule (the “Original Rule”) that amends and updates the State Energy Conservation Construction Code (the “Energy Code”). The Notice of Adoption of the Original Rule was published in the State Register on April 6, 2016. The effective date of the Original Rule is October 3, 2016.
    The Original Rule made non-substantive changes to the rule text as originally proposed. The non-substantive changes made to the rule text between the publication of the original Notice of Proposed Rule Making and the filing of the Notice of Adoption of the Original Rule are described in the “Statement Explaining Why Revised Rural Area Flexibility Analysis is not Required” attached to and published with that Notice of Adoption.
    On August 25, 2016, the Code Council adopted this rule (the “Amended Rule”), which amends the Original Rule. The Amended Rule makes the non-substantive changes to the Original Rule described below.
    The Department of State (DOS) believes that the changes made to Original Rule by this Amended Rule are non-substantive, do not affect the issues addressed in the original Rural Area Flexibility Analysis (the “RAFA”), and do not necessitate any changes to the original RAFA or to the Summary of the RAFA as published in the original Notice of Proposed Rule Making.
    The changes made to the Original Rule by this Amended Rule are described as follows:
    The Original Rule incorporated the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code” (Publication date: March 2016) (hereinafter referred to as the “Original 2016 Energy Code Supplement”) by reference into 19 NYCRR Part 1240. The Amended Rule incorporates the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code (Revised August 2016)” (Publication date: August 2016) (hereinafter referred to as the “Revised 2016 Energy Code Supplement”) by reference into 19 NYCRR Part 1240. In this Amended Rule, subdivision (a) of 19 NYCRR Section 1240.2, which defines the term “2016 Energy Code Supplement,” is amended to read as follows:
    “(a) 2016 Energy Code Supplement. The term “2016 Energy Code Supplement” means the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code (Revised August 2016)” (Publication Date: August, 2016) published by the New York State Department of State.”
    The following changes result from incorporating the Revised 2016 Energy Code Supplement, rather than the Original 2016 Energy Code Supplement, into 19 NYCRR Part 1240:
    Item numbers in the Revised 2016 Energy Code Supplement include a prefix to indicate “Part” of the 2016 Energy Code Supplement in which the section appears. For example, Items in Part 1, which amends the Commercial Provisions of the 2015 IECC, are numbered “1.1,” “1.2,” etc.
    A number of misspellings in the Original 2016 Energy Code Supplement have been corrected in the Revised 2016 Energy Code Supplement.
    References in the Original 2016 Energy Code Supplement to the “2016 Supplement to the New York State Uniform Fire Prevention and Building Code” have been corrected in the Revised 2016 Energy Code Supplement to reflect the correct name of that publication (the “2016 Uniform Code Supplement”).
    The following changes were made to sections in the Revised 2016 Energy Code Supplement:
    Changes in Part 1
    In Item 1.7, the terms “commercial building,” “historic building,” and “2015 International Property Maintenance Code (as amended)” were added to the list of definitions added or amended by section 1.7.
    In Item 1.8, which amends section C302.2 of the 2015 IECC Commercial Provisions, a note was added to clarify that Item 1.8 does not delete or amend section C303.2.1 of the 2015 IECC Commercial Provisions.
    In Item 1.9, which amends section C401.2 of the 2015 IECC Commercial Provisions, a note was added to clarify that Item 1.9 does not delete or amend section C401.2.1 of the 2015 IECC Commercial Provisions.
    Item 1.10 was revised to correct the numbering of the new section added by section 1.10 (“C402.2.6” was changed to “C402.6.7”). In addition, a note was added to clarify that Item 1.10 does not delete or amend sections C402.2.1, C402.2.3, C402.2.4, C402.2.5 or C402.2.6 of the 2015 IECC Commercial Provisions.
    In Item 1.12, the caption was revised to correct the reference to the section in the 2015 IECC Commercial Provisions amended by section 1.13 (“C402.4.1” was changed to “C402.4.2”).
    In Item 1.13, the caption was revised and word “stove” was changed to “stoves.”
    In Item 1.18, the description of the publication known as “ASHRAE Appendix G Excerpt – 2015” was changed to reflect more accurately the manner in which that publication is referenced in the 2015 IECC Commercial Provisions (as amended).
    In Item 1.19, the word “paragraphs” was changed to “Items.”
    Changes in Part 2
    Item 2.2, which amends section 4.2.1.1 of ASHRAE 90.1-2013, was revised to clarify that the new item “c” added by Item 2.2 is one of three paths permitted by section 4.2.1.1 of ASHRAE 90.1-2013; to correct the formula for “PCIt” (the second equal sign was changed to a plus sign); and to add a new description of how “regulated energy cost” and “unregulated energy cost” are to be calculated.
    Item 2.3 was revised to correct the reference to the section in ASHRAE 90.1-2013 that is amended by section 2.3 (“4.1.2.3” was changed to “4.2.1.3” in two places).
    Item 2.5 was revised to correct the reference to the section in ASHRAE 90.1-2013 that is amended by Item 2.5 (“8.41” was changed to “8.4.1” in two places), to add the exception for circuits used for emergency services (the exception was inadvertently omitted from the Original 2016 Energy Code Supplement), and to clarify the fact that sections 8.4.1.1 and 8.4.1.2 of ASHRAE 90.1-2013 are not included in section 8.4.1 of ASHRAE 90.1-203 as amended by Item 2.5 of the Revised 2016 Energy Code Supplement.
    In Item 2.7, the word “paragraphs” was changed to “Items.”
    Changes in Part 3
    Item 3.3 amends and restates Chapter 1 of the 2015 IECC Residential Provisions. In the portion of Item 3.3 that amends and restates section R101.1 of the 2015 IECC Residential Provisions, a reference in the final line to the “2015 IECC” was corrected to be a reference to the “2016 Energy Code Supplement.”
    In Item 3.5, the terms “historic building” and “2015 International Property Maintenance Code (as amended)” were added to the list of definitions added or amended by Item 3.5, and the definition of “residential building” was corrected by changing the reference to the “2010 Building Code of New York State” to a reference to the “2015 International Building Code (as amended).”
    In Item 3.6, which amends section R303.2 of the 2015 IECC Residential Provisions, a note was added to clarify that Item 3.6 does not delete or amend section R303.2.1 of the 2015 IECC Residential Provisions.
    Item 3.7 of the Revised 2016 Energy Code Supplement amends sections R402.1, R402.1.1, and R402.1.2 of the 2015 IECC Residential Provisions. The amendments of sections R402.1 and R402.1.1 are the same as the amendments made in items 7 and 8 of Part 3 of the Original 2016 Energy Code Supplement. The amendment of section R402.1.2 is new. Amended section R402.1.2 provides that buildings in climate zone 6 may comply with either of the two rows for climate zone 6 in Table R402.1.2. In addition, a note was added to Item 3.7 to clarify that Item 3.7 does not delete or amend sections R402.1.3, R402.1.4 or R402.1.5 of the 2015 IECC Residential Provisions.
    Item 3.8 adds a new row for Climate Zone 6 to Table R402.1.2 of the 2016 IECC Residential Provisions. The new row provides a new option for Climate Zone 6, which allows the use of R-25 cavity-only insulation in wood frame walls, provided that (1) the fenestration U-factor is reduced to 0.28 and (2) the R-value of the insulation in the basement wall and in the crawl space wall is increased from 15/19 to 15/20. Based on recently developed studies and information relating to the Vermont Residential Building Energy Standards (RBES), the Department of State now believes that this additional option for buildings in climate zone 6 meets the REScheck compliance path and does not constitute a substantial change to the Original Rule.
    In Item 3.10, a note was added to refer to Item 3.14 for a more complete description of the effect of Items 3.10 through 3.14 on Section R402.4 (including sections R402.4.1, R402.4.1.1, R402.4.1.2, R402.4.1.3, R402.4.2, R402.4.3, R402.4.4, R402.4.5, and R402.4.6) of the 2015 IECC Residential Provisions.
    In Item 3.14, references to section numbers were corrected (“C402.4” was changed to “R402.4” and “C402.4.6” was changed to “R402.4.6”). In addition, a note was added to clarify that sections R402.4.1, R402.4.1.1, R402.4.3, R402.4.4, and R402.4.5 of the 2015 IECC Residential Provisions were not deleted or amended by Items 3.10 through 3.14 of the Revised 2016 Energy Code Supplement, and to summarize the effect of Items 3.10 through 3.14 on Section R402.4 (including sections R402.4.1, R402.4.1.1, R402.4.1.2, R402.4.1.3, R402.4.2, R402.4.3, R402.4.4, R402.4.5, and R402.4.6) of the 2015 IECC Residential Provisions.
    In Item 3.15, which amends section R403.3.2 of the 2015 IECC Residential Provisions, a note was added to clarify that Item 3.15 does not delete or amend section R403.3.2.1 of the 2015 IECC Residential Provisions.
    In Item 3.16, which amends section R403.6 of the 2015 IECC Residential Provisions, a note was added to clarify that section 3.16 does not delete or amend Item R403.6.1 of the 2015 IECC Residential Provisions.
    Item 3.20 was revised to clarify its meaning (“Compliance with this section requires that the mandatory provisions identified in Sections R401.2 and R403.5.3 be met” was changed to “Compliance with this section requires that (1) the provisions in Sections R401 through R404 labeled as ‘mandatory’ and (2) the provisions of Section R403.5.3 be met”).
    Revised Job Impact Statement
    On March 9, 2016, the State Fire Prevention and Building Code Council (the “Code Council”) adopted a rule (the “Original Rule”) that amends and updates the State Energy Conservation Construction Code (the “Energy Code”). The Notice of Adoption of the Original Rule was published in the State Register on April 6, 2016. The effective date of the Original Rule is October 3, 2016.
    On August 25, 2016, the Code Council adopted a rule (the “Amended Rule”) that amends the Original Rule. The Amended Rule makes non-substantive changes to the Original Rule.
    The Department of State has determined that it is apparent from the nature and purpose of the Amended Rule will not have a substantial adverse impact on jobs and employment opportunities.
    The Amended Rule amends and updates the Energy Code to make the Energy Code (1) a building energy code that is based on the 2015 edition of the International Energy Conservation Code (the “2015 IECC”), a model code developed and published by the International Code Council, Inc. (“ICC”), and the 2013 edition of standard ASHRAE 90.1 (“ASHRAE 90.1-2013”), published by the American Society of Heating, Refrigeration and Air-Conditioning Engineers, Inc., and (2) a building energy code that equals or exceeds the 2015 IECC for residential buildings and a building energy code that equals or exceeds ASHRAE-90.1-2013 for commercial buildings. The 2015 IECC and ASHRAE 90.1-2013 both incorporate more current technology in the area of energy conservation. In addition, as a performance-based, rather than a prescriptive, code, the 2015 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 Code Council conclude that regulations based upon the 2015 IECC and ASHRAE 90.1-2013 will provide a greater incentive for the construction of new buildings and the rehabilitation of existing buildings than exists with the current version of the 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 and updated Energy Code.

Document Information

Effective Date:
10/3/2016