(a) 2007 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: [May 2002] August 2007, published by the [International Conference of Building Officials (ICBO)] International Code Council, Inc. Copies of said publication (hereinafter referred to as the 2007 ECCCNYS) may be obtained from the publisher at the following address:

[International Conference of Building Officials] International Code Council, Inc.

[5360 Workman Mill Road] 500 New Jersey Avenue, NW, 6th Floor

[Whittier, CA 90601-2298] Washington, D.C. 20001.

Said publication is available for public inspection and copying at:

New York State, Department of State

Codes Division

41 State Street

Albany, NY 12231-0001

(1) Certain published standards are denoted in the 2007 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 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 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.

(2) For the purposes of applying the 2007 ECCCNYS in this State, and for the purposes of paragraph (1) of this subdivision, the 2002 edition of standard AAMA 101/I.S.2/NAFS, entitled Voluntary Performance Specifications for Windows, Skylights and Glass Doors, published by American Architectural Manufacturers Association (said standard being hereinafter referred to as AAMA 101/I.S.2/NAFS-02) shall be deemed to be one of the standards denoted as incorporated by reference into 19 NYCRR Part 1240. Said standard AAMA 101/I.S.2/NAFS-02 is incorporated by reference in this Part 1240. The name and address of the publisher of AAMA 101/I.S.2/NAFS-02 from which copies of said standard may be obtained are:

A Revised Regulatory Impact was previously prepared, and a Summary of the Revised Regulatory Impact Statement was published in the State Register on February 28, 2007.

Although nonsubstantive changes were made to the proposed rule prior to its adoption, these changes do not necessitate further revision of the Regulatory Impact Statement, and these changes do not necessitate revision of the Regulatory Flexibility Analysis for Small Businesses and Local Governments, Rural Area Flexibility Analysis or Job Impact Statement.

The nonsubstantive changes made to the rule text since publication of the Notice of Proposed Rule Making include the following:

(1) Minor corrections were made in the text of the publication entitled Energy Conservation Construction Code of New York State (the 2007 ECCCNYS).

(2) A revised version of the 2007 ECCCNYS, reflecting the changes described in (1) above, was prepared, and the text of 19 NYCRR section 1240.1 was changed to reflect the incorporation by reference in that section of the revised version of the 2007 ECCCNYS.

(3) The address of the publisher of the 2007 ECCCNYS as specified in 19 NYCRR section 1240.1 was corrected.

(4) Statements were added to 19 NYCRR section 1240.1 to indicate that certain published standards which are denoted in the 2007 ECCCNYS as being incorporated by reference into the NYCRR are so incorporated; to indicate that copies of such standards are available for inspection and copying at the office of the Department of State; and to indicate that one standard which is not denoted in the 2007 ECCCNYS as being incorporated by reference into the NYCRR is so incorporated, and to provide the name and address of the publisher of such standard.

None of these nonsubstantive changes affects the issues addressed in the Regulatory Impact Statement, the Revised Regulatory Impact Statement, the Regulatory Flexibility Analysis for Small Businesses and Local Governments, the Rural Area Flexibility Analysis, or the Job Impact Statement and, therefore, no further revision of the Regulatory Impact Statement is necessary and no revision of the Regulatory Flexibility Analysis for Small Businesses and Local Governments, Rural Area Flexibility Analysis, or Job Impact Statement is necessary.

Comment 1: Adopt the 2003 model International Energy Conservation Code (IECC), with the residential provisions of the 2004 Supplement, without modifications.

Response: No changes were made to address this comment. The amended version of the State Energy Conservation Construction Code (Energy Code) implemented by this rule making will be included in a publication entitled Energy Conservation Construction Code of New York State (the 2007 ECCCNYS). For the most part, the 2007 ECCCNYS follows the 2003 IECC, with certain provisions from the 2004 Supplement in the residential section. However, the 2007 ECCCNYS also incorporates certain provisions which are specific to New York State, all of which were determined by the Code Council to be appropriate.

Comment 2: The notice published in the State Register regarding this rule making is incorrect, because it indicates that the amended Energy Code will based on the 2003 ICC, while the amended Energy Code is primarily based on the 2004 Supplement.

Response: No changes were made to address this comment. The notice in the State Register is correct. Although certain provisions in the 2004 Supplement are in the residential section, the 2007 ECCCNYS is based primarily on the 2003 IECC. As indicated in the Summary of the Regulatory Impact Statement published in the State Register, certain modifications have been made to the text of the IECC to address specific New York needs.

Comment 3: The notice published in the State Register did not mention the proposed changes to the energy chapter in the proposed new Residential Code of New York State (RCNYS), and the notice published in the State Register regarding the rule making for the proposed amendment of the RCNYS did not contain a single reference to energy.

Response: No changes were made to address this comment. The RCNYS is designed to be a single publication that includes all provisions relating to the construction of one and two-family dwellings. In furtherance of that intent, Chapter 11 of the RCNYS includes energy-related provisions. However, all of the provisions included in Chapter 11 of the RCNYS are contained in the 2007 ECCCNYS. Therefore, the provisions contained in Chapter 11 of the RCNYS are part of the Energy Code, as amended by this rule making.

Comment 4: Section 402.5.1 of the 2007 ECCCNYS unnecessarily limits flexibility by mandating area weighted average maximum fenestration U-factor of 0.40.

Response: No changes were made to address this comment. Section 402.3.3 exempts up to 15 square feet of glazed fenestration from the requirements of table 402.1, thus allowing some decorative glazing without regard to its energy efficiency. In addition, RES-check is a permitted compliance path that does not incorporate the limit on area weighted average U-factor.

Comment 5: Requiring R-8 insulation for ducts outside of the thermal envelope is not cost effective, as required by Energy Law section 11-103.2.

Response: No changes were made to address this comment. First, no documentation was submitted to support the comment. Second, taken as a whole, the Energy Code, as amended by this rule, is cost effective as required by the Energy Law.

Comment 6: New York should accept compliance documentation based on current software developed by the U.S. Department of Energy, rather than older versions, or New York should designate the version of RES-check based on the 2006 IECC as acceptable compliance software, in that it more closely related to the 2004 Supplement than the current version of RES-check.

Response: Calculations made using the Res-Check Software based on 2006 IECC will not properly reflect the 2007 ECCCNYS. However, New York Version 4.0.1 of RES-check is available and appropriate for use in this State. To clarify this, 2007 ECCCNYS section 101.5.1 was changed to specify that the New York Version 4.0.1 of RES-check can be used.

Comment 7: The 2007 ECCCNYS will increase R values, and will disadvantage certain insulation manufacturers. The wall insulation values in Table 402.1 should be changed to R-19 in climate zones 5 and 6, and to R-13 in climate zone 4, as in the 2006 IECC.

Response: No changes were made to address this comment. The 2007 ECCCNYS will include amended climate zone designations, reducing the number of zones in New York State from seven to three. The net effect will be to increase minimum wall insulation values increase in four counties and decrease values in eight counties. In addition, use of the software compliance path in RES-check would eliminate even that minor change. As there is no substantive change in wall insulation requirements, no manufacturer is expected to be affected.

Comment 8: Comments regarding the 2007 ECCCNYS and the wall bracing requirements in the RCNYS raised the following related issues:

Issue 1: R-15 and R-21 wall cavity insulation cost is disproportionately high (approximately 30 percent over the cost of R-13 and R-19), and the additional cost in wall cavity insulation will influence builders to substitute structural wall sheathing with foam wall sheathing.

Issue 2: The use of non-structural wall sheathing, even used between bracing panels, may significantly limit the ability of builders to meet the most basic code requirements for wall bracing set forth in RCNYS section 602.10.

Issue 3: The limited energy savings that would result from increased R values does not warrant the additional costs that the builders will be subjected to in meeting the wall bracing requirements.

Response: No changes were made to address these comments. First, the assertion of a 30 percent increase in cost is unsupported by cost data. Second, Table 402.1(1) in the 2007 ECCCNYS provides that in Climate Zones 5 and 6, if cavity insulation is R-15, R-5 insulated wall sheathing must be used; however, there will be no conflict with the wall bracing requirements of the RCNYS because: (i) footnote “f” in Table 402.1(1) provides that if structural sheathing covers 25 percent of less of the exterior, the R-5 sheathing is not required where structural sheathing is used; (ii) footnote “f” provides that if structural sheathing covers more than 25 percent of the exterior, it shall be supplemented with R-2 insulated sheathing, and R-2 can be achieved using siding backer board, which typically ranges from R-1.5.to R3; (iii) insulated sheathing is not required in Climate Zone 4; (iv) the RES-Check software method of compliance does not require the addition of insulated sheathing to exterior walls; and (v) the RCNYS provides a number of options to meet wall bracing requirements, in addition to the basic prescriptive wall bracing methods. Third, persons raising Issue 2 appear to assume that the Energy Code requires insulation in unheated vehicular storage; the Energy Code has no such requirement. Further, the RCNYS provides a number of options relating to wall bracing, and in the event such options are exhausted, the RCNYS permits use of the engineered design method, which allows the use of pre-engineered methods, such as APA narrow wall, or actual engineering practice methods.

Comment 9: Duct leakage testing should be required in one and two-family dwellings.

Response: No changes were made to address this comment. Where tested leakage meets a specified standard, the amendment proposed by this comment would permit a reduced thermal envelope. The comment does not provide any data indicating that mandating a tested duct leakage rate would be cost effective, as required by the Energy Law.

Comment 10: In the trade-off exception to Section 402.1, the efficiency of oil-fired boiler and furnaces and natural gas-fired boilers should be increased to 90 percent AFUE.

Response: No changes were made to address this comment. In selecting appliance efficiency ratings for the Section 402.1 trade-off exception, the incremental costs for 90 percent AFUE appliances would result in a payback period exceeding 10 years. This would violate Energy Law Section 11-103.2.

Comment 11: Exception 3 in Section 402.1 should not be adopted, because thermal envelope efficiency should not be traded off for mechanical equipment efficiency.

Response: No changes were made to address this comment. The trade-offs would result in additional energy savings, relative to the base code.

Comment 12: 2007 ECCCNYS section 402.5.1 unnecessarily limits flexibility and prohibits the use of glass block.

Response: No changes were made to address this comment. Section 402.3.3 exempts up to 15 square feet of glazed fenestration from the requirements of table 402.1, thus allowing some glazing without regard to its energy efficiency.

Comment 13: 2007 ECCCNYS section 402.5.1 restricts the use of skylights, which fall within the definition of fenestration.

Response: No changes were made to address this comment. Table 402.1(1) requires fenestration to have U-factors of 0.40 or 0.35, and requires skylights to have a U-factor of 0.60. Since the Table is more specific in its requirements than the definition, section 402.5.1 is not considered to be applicable to skylights.

Comment 14: The 2007 ECCCNYS does not account for the improved air-sealing performance of wet spray applied insulation systems.

Response: No changes were made to address this comment. The proposed amendments include a trade-off methodology that permits reduced R-values in walls and roofs where infiltration is demonstrated to meet a specified standard.

Comment 15: Errors exist in the on-line publication of the proposed texts of the new ECCCNYS and Chapter 11 of the new Residential Code of New York State (RCNYS).

Response: These typographical errors have been corrected.

Comment 16: The Energy Code should be based on the 2006 IECC and that the commercial provisions of the Energy Code should be based on the 2004 Supplement or the 2006 IECC.

Response: No changes were made to address this comment. It has been the policy of the Code Council to use the published versions of the ICC model codes as the basis for the Uniform Code and the Energy Code. The Department of State intends to start its review of the 2006 ICC codes in the near future, and to make recommendations to the Code Council on an expedited basis.

Comment 17: Basement walls should be insulated to ten feet below grade or the basement floor, whichever is less.

Response: No changes were made to address this comment. The provision relating to insulation of basement walls was modified from the 2000 IECC because an analysis found that the additional insulation depth would not be cost effective as defined in Article 11 of the Energy Law.

Comment 18: Simulated performance alternative provisions should be modified with regard to the reference design glazing area, so that it is consistent with the 2006 IECC provisions.

Response: No changes were made to address this comment. The Department of State intends to start its review of the 2006 ICC codes in the near future, and to make recommendations to the Code Council on an expedited basis.

Comment 19: Wall insulation R values should not be changed from R-13 to R-15, due to the inherent inability of cellulose to meet R-values beyond R-13 in a 2×4 construction. Cellulose insulation performs better than traditional insulation materials.

Response: No changes were made to address these comments. Although Table 402.1(1) requires R-15 cavity wall insulation and R-5 insulating wall sheathing in Zones 5 and 6, Exception 1 allows the use of RES-Check software to demonstrate compliance, and Exception 3 allows compliance with Table 402.1(2) (which allows R-13 in Climates Zones 4, 5 and 6) if certain criteria are satisfied. Further, as discussed in the Response to Comment 8, there is no conflict between the 2007 ECCCNYS and the wall bracing requirements of the RCNYS, and a building may be continuously sheathed while still meeting the Energy Code requirements. Further, all of New York's wind zones of 110–120 mph wind design are located within Climate Zone 4. Finally, the parties making these comments provided no documentation to support their opinion that some insulation products perform better than others.