TITLE 34. PUBLIC FINANCE

PART 1. COMPTROLLER OF PUBLIC ACCOUNTS

CHAPTER 19. STATE ENERGY CONSERVATION OFFICE

SUBCHAPTER E. TEXAS BUILDING ENERGY PERFORMANCE STANDARDS

34 TAC §19.53

The Comptroller of Public Accounts adopts new §19.53, concerning building energy efficiency performance standards, with changes to the proposed text as published in the March 26, 2010, issue of the Texas Register (35 TexReg 2514). The new section is created in compliance with Health and Safety Code, §388.003(b-1), which authorizes the State Energy Conservation Office (SECO) to adopt equivalent or more stringent energy codes than those adopted in Health and Safety Code, §388.003(a) and (b).

New §19.53(a) adopts the energy efficiency provisions of the International Residential Code as they existed on May 1, 2009, as the energy code for single family residential dwellings, as that term is defined in Health and Safety Code, §388.002(12). The agency has concluded that the energy efficiency provisions of the 2009 edition of the International Residential Code (2009 IRC) are more stringent than the same provisions for the 2001 of the International Residential Code. Under the provisions of the American Recovery and Reinvestment Act, Texas has agreed to implement building code standards that are equal to or more stringent than the 2009 edition of the International Energy Conservation Code (IECC), with 90% compliance by 2017. The agency is only authorized by Texas statute to adopt the 2009 edition of the International Residential Code (IRC) for single-family homes, but in some climate zones of Texas, the 2009 IRC is not equivalent to the 2009 edition of the IECC. As part of this adoption, the agency encourages local jurisdictions to evaluate each standard for their particular climate zone and if appropriate adopt the standard, and/or and strengthening amendments that result in the greatest energy savings, in order to assist Texas in making progress towards the goal of 90% compliance with the 2009 edition of the IECC by 2017. The Energy Systems Laboratory at Texas A&M and the U.S. Department of Energy can assist municipalities in evaluating the IRC for local conditions. New §19.53(b) adopts the International Energy Conservation Code as it existed on May 1, 2009, for all other residential, commercial, and industrial construction in this state. The agency adopts an effective date of April 1, 2011 for this subsection because Health and Safety Code, §388.003(b-1) provides that the amendments made under this statute may be effective no later than nine months from the time the adoption is filed with the Texas Register.

The agency received 1,057 comments from interested individuals and groups. Comments that supported adoption of the rule as proposed were submitted by Texas Senator Rodney Ellis, Mr. Carl Mullen, Mr. Ed McGowen with Bryan ISD, Mr. Claude Whitaker Jr., Ms. Sharon Reuler, P.C., 63 State and local associations of homebuilders and individual home builders, 77 individuals identifying themselves as members of the residential construction industry, and the NAACP-Austin.

Sierra Club members submitted 874 substantially similar comments that recommended that the agency amend subsection (a) to adopt the 2009 edition of the International Energy Conservation Code (2009 IECC) for all buildings or adopt amendments to the 2009 edition of the International Residential Code (2009 IRC) for residential buildings to make them as stringent as the 2009 IECC. These comments also recommended amending the implementation date to January 1, 2011 for "affected counties" where air pollution is a concern.

The agency responds that the agency is only authorized to adopt newer editions of the IRC for single-family residential construction and is not authorized to adopt amended versions of the IRC. The effective date as proposed is warranted because a reasonable amount of time to develop local enforcement capability is deemed necessary.

The Responsible Energy Codes Alliance (RECA), on behalf of its 18 members, submitted comments that recommended that the agency amend subsection (a) to adopt the 2009 IECC for all new construction, including residential single-family, and to change the implementation date to January 1, 2011. These comments stated that if the agency determines that it is constrained by statute to adopt the 2009 IRC, the agency should adopt amendments to it to make it consistent with 2009 IECC.

The agency responds that the agency is only authorized to adopt newer editions of the IRC for single-family residential construction and is not authorized to adopt amendments to the IRC. The effective date as proposed is warranted because a reasonable amount of time to develop local enforcement capability is deemed necessary.

Seven members of the US Green Building Council - Texas Gulf Coast Chapter and Armor Glass International, Inc. submitted substantially similar comments that the agency should adopt the 2009 IECC for both residential and commercial buildings as quickly as possible.

The agency responds that the agency is only authorized to adopt newer editions of the IRC for single-family residential construction. The effective date as proposed is warranted because a reasonable amount of time to develop local enforcement capability is deemed necessary. Additionally, the agency plans extensive training on the 2009 IRC for local building officials and builders during State fiscal year 2011 to facilitate development of that local code enforcement capacity.

Brickfield, Burchette, Ritts & Stone, PC on behalf of Cardinal Glass Industries, submitted a comment that the agency should amend subsection (a) to adopt the 2009 IECC only or adopt the 2009 IRC with amendments.

The agency responds that the agency is only authorized to adopt newer editions of the IRC for single-family residential construction and is not authorized to adopt amendments to the IRC.

The Building Codes Assistance Project submitted a comment that the agency should amend subsection (a) to adopt the 2009 IRC with amendments to make it equivalent to 2009 IECC and that the new energy codes should take effect no later than January 1, 2011.

The agency responds that the agency is not authorized to adopt amendments to the IRC. The effective date as proposed is warranted because a reasonable amount of time to develop local enforcement capability is deemed necessary.

The Environmental Defense Fund (EDF) submitted a comment that the agency should amend subsection (a) to adopt the 2009 IECC for all new construction, including single-family homes. EDF commented that if the agency believes it is unable to adopt the proposed changes, EDF recommends amending the 2009 IRC to make it as stringent as 2009 IECC and that the implementation date should be January 1, 2011.

The agency responds that the agency is only authorized to adopt newer editions of the IRC for single-family residential construction and is not authorized to adopt amendments to the IRC. The effective date as proposed is warranted because a reasonable amount of time to develop local enforcement capability is deemed necessary.

The Public Citizen-Texas Office submitted a comment recommending that the agency send a letter to local government units requesting that when the local governmental entity adopts the 2009 edition of the IRC the entity also adopt appropriate amendments to achieve greater energy savings and improved air quality.

The agency responds that the agency will send a letter to all local governmental entities making them aware of the building energy code update. The letter will include the following: the agency will acknowledge that the adopted building energy codes set a minimum standard statewide; that state law allows cities to evaluate and adopt modified codes and strengthening amendments; that Texas has three climate zones, each with different characteristics that affect the energy consumption for single-family residences; that these characteristics, according to analysis by the US Department of Energy and by Texas A&M's Energy Systems Laboratory, make the 2009 IRC more stringent in some areas, and the 2009 IECC more stringent in other areas of the state; and that the agency encourages local jurisdictions to evaluate the energy saving impact of each standard for their particular climate zone and consider adoption of the standard, and any strengthening amendments, that result in the greatest energy savings. The agency also responds that as part of code training the agency will conduct for local governments, a segment will focus on assessing code modification impact as it relates to improving energy efficiency or to achieve other locally identified co-benefits.

The Lone Star Chapter of the Sierra Club submitted a comment that the agency amend subsection (a) to adopt the 2009 IECC for all new residential and commercial buildings, including single-family and duplex homes but that if this is not acceptable that the agency consider the following: 1) adopt the 2009 IECC for multi-family, commercial and industrial to be effective on January 1, 2011; 2) adopt 2009 IRC with amendments for all "affected counties" to be effective on January 1, 2011 but allow an exception for one year, allowing builders to use 2009 IRC for single-family construction in non-affected counties; and 3) require compliance with 2009 IECC when any performance option is available, including use of compliance software.

The agency responds that the agency is only authorized to adopt newer editions of the IRC for single-family residential construction and is not authorized to adopt amendments to the IRC. The effective date as proposed is warranted because a reasonable amount of time to develop local enforcement capability is deemed necessary.

Mr. Tom Lammers submitted comments opposing the adoption of any new building efficiency standards. Mr. Lammers expressed concern with the current energy code and with testing and compliance associated with the 2009 editions of the IRC and IECC.

The agency responds that the scope of the proposed rules, as authorized by statute, is confined to adopting more recent versions of model building energy codes. Addressing the current energy code is beyond this scope. The agency plans extensive training on the 2009 IRC for local building officials and builders during State fiscal year 2011 to facilitate development of local code enforcement capacity, including compliance testing.

This rule is adopted pursuant to Health and Safety Code, §388.003.

The new section implements Health and Safety Code, §388.003.

§19.53.Building Energy Efficiency Performance Standards.

(a) Single-family residential construction. Effective January 1, 2012, the energy efficiency provisions of the International Residential Code as they existed on May 1, 2009, are adopted as the energy code in this state for single-family residential construction as it is defined in Health and Safety Code, §388.002(12).

(b) All other residential, commercial, and industrial construction. Effective April 1, 2011, the International Energy Conservation Code as it existed on May 1, 2009, is adopted as the energy code for use in this state for all residential, commercial, and industrial construction that is not single-family residential construction under subsection (a) of this section.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 24, 2010.

TRD-201002819

Ashley Harden

General Counsel

Comptroller of Public Accounts

Effective date: April 1, 2011

Proposal publication date: March 26, 2010

For further information, please call: (512) 475-0387