[Federal Register Volume 87, Number 56 (Wednesday, March 23, 2022)]
[Rules and Regulations]
[Pages 16375-16387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06138]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2017-BT-TP-0028]
RIN 1904-AE03


Energy Conservation Program: Test Procedures for Water Closets 
and Urinals

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

ACTION: Final rule.

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SUMMARY: This final rule amends the test procedures for water closets 
and

[[Page 16376]]

urinals to reference the most recent update to the relevant industry 
standard, American Society of Mechanical Engineers (``ASME'') Standard 
A112.19.2-2018. In this final rule, the Department of Energy (``DOE'') 
is also amending certain definitions and adding definitions for certain 
terms that are currently used in the Federal test procedures but are 
not defined.

DATES: The effective date of this rule is April 22, 2022. The final 
rule changes will be mandatory for product testing starting September 
19, 2022. The incorporation by reference of certain material listed in 
this rule is approved by the Director of the Federal Register as of 
April 22, 2022.

ADDRESSES: The docket, which includes Federal Register documents, 
public meeting attendee lists and transcripts, comments, and other 
supporting documents/materials, is available for review 
www.regulations.gov. All documents in the docket are listed in the 
www.regulations.gov index. However, some documents listed in the index, 
such as those containing information that is exempt from public 
disclosure, may not be publicly available.
    A link to the docket web page can be found at www.regulations.gov/docket/EERE-2017-BT-TP-0028. The docket web page contains instructions 
on how to access all documents, including public comments, in the 
docket.
    For further information on how to review the docket contact the 
Appliance and Equipment Standards Program staff at (202) 287-1445 or by 
email: <a href="/cdn-cgi/l/email-protection#511021213d38303f32340225303f35302335220024342225383e3f221134347f353e347f363e27"><span class="__cf_email__" data-cfemail="d495a4a4b8bdb5bab7b187a0b5bab0b5a6b0a785a1b1a7a0bdbbbaa794b1b1fab0bbb1fab3bba2">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: 
    Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: 
(202) 586-0371. Email <a href="/cdn-cgi/l/email-protection#6d2c1d1d01040c030e083e190c03090c1f091e3c18081e190402031e2d080843090208430a021b"><span class="__cf_email__" data-cfemail="afeedfdfc3c6cec1cccafcdbcec1cbceddcbdcfedacadcdbc6c0c1dcefcaca81cbc0ca81c8c0d9">[email protected]</span></a>.
    Mr. Matthew Ring, U.S. Department of Energy, Office of the General 
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. 
Telephone: (202) 586-2555. Email: <a href="/cdn-cgi/l/email-protection#c984a8bdbda1acbee79ba0a7ae89a1b8e7ada6ace7aea6bf"><span class="__cf_email__" data-cfemail="034e6277776b66742d516a6d64436b722d676c662d646c75">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: DOE incorporates by reference the following 
industry standard into part 430:
    ASME A112.19.2-2018/CSA B45.1-18, ``Ceramic plumbing fixtures,'' 
July 2018 (including Errata--October 2018) (``ASME A112.19.2-2018'').
    Copies of ASME A112.19.2-2018 can be obtained from American Society 
of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990, 
1-800 843-2763, or by going to www.asme.org.
    For a further discussion of this standard, see section IV.N of this 
document.

Table of Contents

I. Authority and Background
    A. Authority
    B. Background
II. Synopsis of the Final Rule
III. Discussion
    A. Scope of Applicability
    B. Updates to Industry Test Standards
    C. Definitions
    D. Test Pressure
    E. Additional Directions Regarding Recorded & Calculated Values
    F. Connected and Electronic Products
    G. Clarifications to 10 CFR 430.23 and Appendix T
    H. Test Procedure Costs
    I. Effective and Compliance Dates
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under Treasury and General Government Appropriations 
Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under Section 32 of the Federal Energy Administration 
Act of 1974
    M. Congressional Notification
    N. Description of Materials Incorporated by Reference
V. Approval of the Office of the Secretary

I. Authority and Background

    Water closets and urinals are included in the list of ``covered 
products'' for which the U.S. Department of Energy (``DOE'') is 
authorized to establish and amend energy conservation standards and 
test procedures. (42 U.S.C. 6292(a)(17) and (18)) DOE's energy 
conservation standards and test procedures for water closets and 
urinals are currently prescribed at title 10 Code of Federal 
Regulations (``CFR'') 430.23(u) and (v), respectively, and 10 CFR part 
430, subpart B, appendix T (``appendix T''). The following sections 
discuss DOE's authority to establish test procedures for water closets 
and urinals and relevant background information regarding DOE's 
consideration of test procedures for this equipment.

A. Authority

    The Energy Policy and Conservation Act, as amended (``EPCA''),\1\ 
authorizes DOE to regulate the energy efficiency of a number of 
consumer products and certain industrial equipment. (42 U.S.C. 6291-
6317) Title III, Part B \2\ of EPCA established the Energy Conservation 
Program for Consumer Products Other Than Automobiles, which sets forth 
a variety of provisions designed to improve energy efficiency and water 
use. These products include water closets and urinals, the subject of 
this document. (42 U.S.C. 6292(a)(17) and (18))
---------------------------------------------------------------------------

    \1\ All references to EPCA in this document refer to the statute 
as amended through the Infrastructure Investment and Jobs Act, 
Public Law 117-58 (Nov. 15, 2021).
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
---------------------------------------------------------------------------

    The energy conservation program under EPCA consists essentially of 
four parts: (1) Testing, (2) labeling, (3) Federal energy conservation 
standards, and (4) certification and enforcement procedures. Relevant 
provisions of EPCA specifically include definitions (42 U.S.C. 6291), 
test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), 
energy conservation standards \3\ (42 U.S.C. 6295), and the authority 
to require information and reports from manufacturers (42 U.S.C. 6296).
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    \3\ The term ``energy conservation standard'' includes water use 
standards for showerheads, faucets, water closets and urinals. (42 
U.S.C. 6291(6)(A))
---------------------------------------------------------------------------

    The testing requirements consist of test procedures that 
manufacturers of covered products must use as the basis for (1) 
certifying to DOE that their products comply with the applicable energy 
conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) 
making representations about the efficiency of those products (42 
U.S.C. 6293(c)). Similarly, DOE must use these test procedures to 
determine whether the products comply with any relevant standards 
promulgated under EPCA. (42 U.S.C. 6295(s))
    Federal energy efficiency requirements for covered products 
established under EPCA generally supersede State laws and regulations 
concerning energy and water conservation testing, labeling, and 
standards. (42 U.S.C. 6297) DOE may, however, grant waivers of Federal 
preemption for particular State laws or regulations, in accordance with 
the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))
    Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures 
DOE must follow when prescribing or amending

[[Page 16377]]

test procedures for covered products. First, EPCA requires that any 
test procedures prescribed or amended under this section shall be 
reasonably designed to produce test results which measure energy 
efficiency, energy use water use (for plumbing products such as water 
closets and urinals), or estimated annual operating cost of a covered 
product during a representative average use cycle (as determined by the 
Secretary) or period of use. (42 U.S.C. 6293(b)(3)) Second, any test 
procedure shall not be unduly burdensome to conduct.
    EPCA also requires that, at least once every 7 years, DOE evaluate 
test procedures for each type of covered product, including water 
closets and urinals, to determine whether amended test procedures would 
more accurately or fully comply with the requirements for the test 
procedures to not be unduly burdensome to conduct and be reasonably 
designed to produce test results that reflect water use, and estimated 
operating costs during a representative average use cycle or period of 
use. (42 U.S.C. 6293(b)(1)(A))
    If the Secretary determines, on her own behalf or in response to a 
petition by any interested person, that a test procedure should be 
prescribed or amended, the Secretary shall promptly publish in the 
Federal Register proposed test procedures and afford interested persons 
an opportunity to present oral and written data, views, and arguments 
with respect to such procedures. The comment period on a proposed rule 
to amend a test procedure shall be at least 60 days and may not exceed 
270 days. In prescribing or amending a test procedure, the Secretary 
shall take into account such information as the Secretary determines 
relevant to such procedure, including technological developments 
relating to energy or water use or energy efficiency of the type (or 
class) of covered products involved. (42 U.S.C. 6293(b)(2)). If DOE 
determines that test procedure revisions are not appropriate, DOE must 
publish its determination not to amend the test procedures.
    EPCA also directs that the test procedures for water closets and 
urinals are to be the test procedures specified in American Society of 
Mechanical Engineers (``ASME'') A112.19.6--1990, ``Hydraulic 
Requirements for Water Closets and Urinals'' (``ASME A112.19.6-1990''). 
(42 U.S.C. 6293(b)(8)(A)) EPCA further directs that, if the 
requirements of ASME A112.19.6-1990 are revised at any time and 
approved by the American National Standards Institute (``ANSI''), DOE 
must amend the Federal test procedures to conform to the revised ASME/
ANSI standard, unless DOE determines by rule that to do so would not 
meet the requirements of EPCA that the test procedures be reasonably 
designed to produce test results which measure water use during a 
representative average use cycle as determined by DOE, and not be 
unduly burdensome to conduct. (42 U.S.C. 6293(b)(8)(B)) If DOE 
determines that a test procedure amendment is warranted, it must 
publish proposed test procedures and offer the public an opportunity to 
present oral and written comments on them. (42 U.S.C. 6293(b)(2))
    DOE is publishing this final rule in satisfaction of these 
requirements under EPCA. (42 U.S.C. 6293(b)(1)(A) and (b)(8)(B))

B. Background

    DOE's test procedures for water closets and urinals are found in 10 
CFR 430.23(u) and (v), respectively, and appendix T.
    On May 20, 2021, DOE published a notice of proposed rulemaking 
(``NOPR'') presenting DOE's proposals to amend the water closets and 
urinals test procedures (``May 2021 NOPR''). 86 FR 27281. DOE held a 
public meeting related to this NOPR on June 16, 2021.
    DOE received comments in response to the May 2021 NOPR from the 
interested parties listed in Table I.1.\4\
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    \4\ DOE also received one anonymous comment that stated the 
following: ``I think it's a good idea,'' which is not presented in 
the Table I.1.

    Table I.1--Written Comments Received in Response to May 2021 NOPR
------------------------------------------------------------------------
                                  Referenced in this
            Commenter                    NOPR           Categorization
------------------------------------------------------------------------
Pacific Gas and Electric          CA IOUs...........  Utility Companies.
 Company, San Diego Gas and
 Electric, and Southern
 California Edison
 (collectively, the California
 Investor-Owned Utilities).
Natural Resources Defense         NRDC and ASAP.....  Efficiency
 Council, Appliance Standards                          Advocacy
 Awareness Project.                                    Organizations.
Plumbing Manufacturers            PMI...............  Trade Association.
 International.
------------------------------------------------------------------------

    A parenthetical reference at the end of a comment quotation or 
paraphrase provides the location of the item in the public record.\5\
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    \5\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking to develop 
test procedures for water closets and urinals. (Docket No. EERE-
2017-BT-TP-0028, which is maintained at www.regulations.gov). The 
references are arranged as follows: (commenter name, comment docket 
ID number, page of that document).
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II. Synopsis of the Final Rule

    In this final rule, DOE amends 10 CFR 430.2 (Definitions), 10 CFR 
430.3 (Materials Incorporated by Reference), and appendix T as follows:
    (1) Incorporate by reference ASME A112.19.2-2018, ``Ceramic 
plumbing fixtures,'' with additional clarifying edits in appendix T;
    (2) Replace the current term ``toilet'' with ``water closet;'' 
``blowout toilet'' and ``blowout water closet'' with ``blowout bowl 
water closet;'' ``gravity tank-type toilet'' with ``gravity flush tank 
water closet;'' and ``siphonic water closet'' with ``siphonic bowl 
water closet;'' and
    (3) Add terms and corresponding definitions for ``blowout bowl,'' 
``blowout action,'' ``gravity flush tank water closet,'' ``siphonic 
action,'' ``siphonic bowl,'' and ``trough-type urinal.''
    The adopted amendments are summarized in Table II.1 compared to the 
test procedure provision prior to the amendment, as well as the reason 
for the adopted change.

      Table II.1--Summary of Changes in the Amended Test Procedures
------------------------------------------------------------------------
                                     Amended test       Reason for the
       DOE test procedures            procedures            change
------------------------------------------------------------------------
Incorporates the 2008 version of  Incorporates the    Industry TP update
 ASME A112.19.2 for measurement    2018 version of     to ASME A112.19.2-
 of water consumption.             ASME A112.19.2,     2018.
                                   with additional
                                   clarifying edits
                                   to appendix T.

[[Page 16378]]

 
Refers to both ``toilet'' and     Replaces            Harmonizes terms
 ``water closet'' but only         ``toilet'' with     and definitions
 defines ``water closet''.         ``water closet''.   with ASME
                                                       A112.19.2-2018.
Defines and refers to and the     Defines the term    Harmonizes terms
 term ``blowout toilet''.          ``blowout bowl,''   and definitions
                                   and refers to the   with ASME
                                   term ``blowout      A112.19.2-2018.
                                   bowl water
                                   closet'' in lieu
                                   of ``blowout
                                   toilet'' and
                                   ``blowout water
                                   closet.''
                                   Additionally,
                                   defines the term
                                   ``blowout
                                   action,'' which
                                   is included
                                   within the
                                   definition of
                                   ``blowout bowl''.
Refers to the terms ``gravity     Defines the terms   Harmonizes
 flush tank water closet'' and     ``gravity flush     definitions with
 ``siphonic bowl,'' but does not   tank water          ASME A112.19.2-
 define either term.               closet'' and        2018.
                                   ``siphonic
                                   bowl.'' Refers to
                                   the term
                                   ``gravity flush
                                   tank water
                                   closet'' in lieu
                                   of ``gravity
                                   flush tank-type
                                   toilet.'' Refers
                                   to the term
                                   ``siphonic bowl
                                   water closet'' in
                                   lieu of
                                   ``siphonic water
                                   closet.''
                                   Additionally,
                                   defines the term
                                   ``siphonic
                                   action,'' which
                                   is included
                                   within the
                                   definition of
                                   ``siphonic bowl''.
Refers to the term ``trough-type  Defines the term    Harmonizes the
 urinal,'' but does not define     ``trough-type       definition of the
 it.                               urinal''.           term with
                                                       stakeholder
                                                       recognized
                                                       definition.
------------------------------------------------------------------------

    DOE has determined that the amendments described in section III and 
adopted in this document will not alter the measured water use of water 
closets and urinals, or require retesting or recertification solely as 
a result of DOE's adoption of the amendments to the test procedures. 
Additionally, DOE has determined that the amendments will not increase 
the cost of testing. Discussion of DOE's actions are addressed in 
detail in section III of this document.
    The effective date for the amended test procedures adopted in this 
final rule is 30 days after publication of this document in the Federal 
Register. Representations of water use or efficiency must be based on 
testing in accordance with the amended test procedures beginning 180 
days after the publication of this final rule.

III. Discussion

A. Scope of Applicability

    This final rule applies to both water closets and urinals, as 
defined in 10 CFR 430.2. DOE defines a ``water closet'' as a plumbing 
fixture that has a water-containing receptor that receives liquid and 
solid body waste, and upon actuation, conveys the waste through an 
exposed integral trap seal into a gravity drainage system, except such 
term does not include fixtures designed for installation in prisons. 10 
CFR 430.2. DOE defines a ``urinal'' as a plumbing fixture that receives 
only liquid body waste and, on demand, conveys the waste through a trap 
seal into a gravity drainage system, except such term does not include 
fixtures designed for installations in prisons. Id.

B. Updates to Industry Test Standards

    DOE's test procedures for water closets and urinals in appendix T 
incorporate by reference ASME A112.19.2-2008,\6\ sections 7.1, 7.1.1, 
7.1.2, 7.1.3, 7.1.4, 7.1.5, 7.4, 8.2, 8.2.1, 8.2.2, 8.2.3, 8.6, 8.6.4, 
Table 5 and Table 6. These sections and tables provide procedures for 
testing and measuring water consumption, specifications for test 
apparatus, and other general requirements for the testing of water 
closets and urinals.
---------------------------------------------------------------------------

    \6\ This reference includes Update No. 1, dated August 2009, and 
Update No. 2, dated March 2011.
---------------------------------------------------------------------------

    ASME A112.19.2-2018, the current version of the industry test 
standard, amends pertinent sections of the 2008 version incorporated 
into 10 CFR part 430. These amendments include (1) editorial changes 
and clarification in sections 7.1.2, 7.3.2,\7\ 8.6.4, and Figure 12; 
\8\ (2) a correction in section 8.2.1 to the water consumption static 
test pressure value for urinals to reflect the corresponding value in 
Table 6; and (3) additions to Table 5 that are not relevant to the 
water consumption test for water closets. In the May 2021 NOPR, DOE had 
tentatively determined that the amendments would not impact the 
measured values of water use for water closets and urinals under 
appendix T, the representativeness of the results, or the test burden. 
Accordingly, DOE proposed to incorporate by reference ASME A112.19.2-
2018 and requested comment. 86 FR 27281, 27284.
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    \7\ The water consumption test is in Section 7.4 in ASME 
A112.19.2-2008, but Section 7.3 in ASME A112.19.2-2018.
    \8\ While Figure 12 is not incorporated by reference in 10 CFR 
430.3(h)(2), Figure 12 is referenced within section 7.1.1, which is 
incorporated by reference.
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    The CA IOUs and PMI recommended that DOE incorporate the latest 
version of the industry test standard, ASME A112.19.2-2018. (CA IOUs, 
No. 11 at p. 2; PMI, No. 13 at p. 1) DOE did not receive any other 
comments regarding the industry standard update. For the reasons 
discussed in the May 2021 NOPR and presented in the preceding 
paragraphs, in this final rule DOE incorporates by reference the latest 
industry test standard, ASME A112.19.2-2018.
    DOE also proposed in the May 2021 NOPR to remove references to 
Sections 7.1 and 8.2 of ASME A112.19.2-2018 in appendix T because those 
sections were superfluous and did not provide specifications needed for 
performing the DOE test procedures. DOE requested comments on the 
proposal. 86 FR 27281, 27284-27285. DOE did not receive any comments on 
this proposal. DOE removes these superfluous references in this final 
rule as proposed in the May 2021 NOPR.

C. Definitions

    Several terms and definitions in ASME A112.19.2-2018 relevant to 
water closets and urinals vary from those in DOE regulations, including 
terms not defined in 10 CFR 430.2. In the May 2021 NOPR, DOE proposed 
amendments to a number of definitions, which are presented in Table 
III.1, and requested comment on the proposed definitions. 86 FR 27281, 
27285-27287.

[[Page 16379]]



                                              Table III.1--Water Closets and Urinals: Terms and Definitions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Usage in appendix T, 10 CFR        DOE definition (10 CFR    ASME definition (A112.19.2-
                Term                     430.32(q) or 10 CFR 430.32(r)               430.2)                       2018)                DOE's proposal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Toilet.............................  10 CFR 430.32(q)....................  None......................  None......................  Replace term with
                                                                                                                                    ``water closet.''
Electromechanical hydraulic toilet.  10 CFR 430.32(q)....................  A water closet that         None......................  Replace term with
                                                                            utilizes electrically                                   ``electromechanical
                                                                            operated devices such as,                               hydraulic water
                                                                            but not limited to, air                                 closet'' while
                                                                            compressors, pumps,                                     maintaining existing
                                                                            solenoids, motors, or                                   definition.
                                                                            macerators in place of or
                                                                            to aid gravity in
                                                                            evacuating waste from the
                                                                            toilet.
Electro-hydraulic water closet.....  Not used............................  None......................  A water closet with a       No update.
                                                                                                        nonmechanical trap seal
                                                                                                        incorporating an electric
                                                                                                        motor and controller to
                                                                                                        facilitate flushing.
Blowout bowl.......................  appendix T..........................  None......................  A non-siphonic water        Adopt ASME A112.19.2-
                                                                                                        closet bowl with an         2018 definition.
                                                                                                        integral flushing rim, a
                                                                                                        trap at the rear of the
                                                                                                        bowl, and a visible or
                                                                                                        concealed jet that
                                                                                                        operates with a blowout
                                                                                                        action.
Blowout action.....................  Not used............................  None......................  A means of flushing a       Adopt ASME A112.19.2-
                                                                                                        water closet whereby a      2018 definition.
                                                                                                        jet of water directed at
                                                                                                        the bowl outlet opening
                                                                                                        pushes the bowl contents
                                                                                                        into the upleg, over the
                                                                                                        weir, and into the
                                                                                                        gravity drainage system.
Blowout toilet.....................  10 CFR 430.32(q)....................  A water closet that uses a  None......................  Replace term with
                                                                            non-siphonic bowl with an                               ``blowout bowl water
                                                                            integral flushing rim, a                                closet.''
                                                                            trap at the rear of the
                                                                            bowl, and a visible or
                                                                            concealed jet that
                                                                            operates with a blowout
                                                                            action.
Blowout water closet...............  appendix T..........................  None......................  None......................  Replace term with
                                                                                                                                    ``blowout bowl water
                                                                                                                                    closet.''
Gravity flush tank water closet....  appendix T..........................  None......................  A water closet designed to  Adopt ASME A112.19.2-
                                                                                                        flush the bowl with water   2018 definition.
                                                                                                        supplied by gravity only.
Gravity tank-type toilet...........  10 CFR 430.32(q)....................  None......................  None......................  Replace term with
                                                                                                                                    ``gravity flush tank
                                                                                                                                    water closet.''
Siphonic bowl......................  appendix T..........................  None......................  A water closet bowl that    Adopt ASME A112.19.2-
                                                                                                        has an integral flushing    2018 definition.
                                                                                                        rim, a trap at the front
                                                                                                        or rear, and a floor or
                                                                                                        wall outlet, and operated
                                                                                                        with a siphonic action
                                                                                                        (with or without a jet).
Siphonic action....................  Not used............................  None......................  The movement of water       Adopt ASME A112.19.2-
                                                                                                        through a flushing          2018 definition.
                                                                                                        fixture by creating a
                                                                                                        siphon to remove waste
                                                                                                        material.
Siphonic water closet..............  appendix T..........................  None......................  None......................  Replace term with
                                                                                                                                    ``siphonic bowl
                                                                                                                                    water closet.''
Trough-type urinal.................  10 CFR 430.32(r)....................  None......................  None......................  Adopt California's
                                                                                                                                    regulatory
                                                                                                                                    definition (``a
                                                                                                                                    urinal designed for
                                                                                                                                    simultaneous use by
                                                                                                                                    two or more
                                                                                                                                    persons.'')
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In response to the May 2021 NOPR, the CA IOUs expressed support for 
the proposed definitions. (CA IOUs, No. 11 at p. 1) DOE did not receive 
any other comments on the proposed terms and definitions. In this final 
rule, DOE incorporates the terms and definitions as proposed in the May 
2021 NOPR. DOE has determined that the amendments to the terms and 
definitions adopted in this final rule provide greater consistency with 
the referenced industry standard and avoid potential confusion in the 
use of the terms.

D. Test Pressure

    Sections 3.a.(ii) and 3.b of appendix T require water closets and 
urinals to be tested at various test pressures, as

[[Page 16380]]

specified in Table III.2. Sections 3.a.(ii) and 3.b of appendix T also 
requires that a test be performed three times at each required 
pressure. The final measured flush volume for each tested unit is the 
average of the total flush volumes recorded at all test pressures.

           Table III.2--Required Test Pressures in Appendix T
------------------------------------------------------------------------
                                                                 Test
                                                              pressures
                   Product configuration                     (pounds per
                                                             square inch
                                                              (``psi''))
------------------------------------------------------------------------
Flushometer valve water closets with siphonic bowl.........       35, 80
Flushometer valve water closets with a blowout bowl........       45, 80
Tank-type water closets....................................   20, 50, 80
Urinals....................................................       25, 80
------------------------------------------------------------------------

    In the May 2021 NOPR, DOE proposed to maintain the water pressure 
and averaging requirements in appendix T, consistent with the industry 
test standard requirements. 86 FR 27281, 27285, 27288.
    NRDC and ASAP commented that averaging the high and low water 
pressure may not make the test procedure representative of 
installations in higher pressure locations. They cited water loss audit 
reports in Pennsylvania \9\ and New Jersey \10\ showing that both 
states reported a minimum system pressure of 40 psi; a median system 
pressure of 75 and 58 psi, respectively; a 90th percentile system 
pressure of 100 and 82 psi, respectively; and a maximum system pressure 
of 150 and 140 psi, respectively. NRDC and ASAP asserted that since no 
system in either state reported an average system pressure of less than 
40 psi, giving equal weight to results of the tests conducted at 20, 
25, or 35 psi with test results conducted at 80 psi could not possibly 
provide a representation of most real-world conditions. NRDC and ASAP 
further cited data compiled by the American Water Works Association, 
showing data from California, Georgia, and Quebec, which reported 
higher system water pressures than the DOE test procedures.\11\ They 
argued that to the extent that the operation of some flushometer valves 
is significantly impacted by water line pressure at the point of 
installation, a higher pressure contributes to higher water 
consumption, and asserted that the averaging of high and low test 
pressure results may mask non-compliance by water closets and urinals 
when installed at higher pressure locations. NRDC and ASAP recommended 
that DOE require that the test results at each test pressure be subject 
to the maximum flush volume of the standard, rather than averaging 
water consumption across all test pressures to determine compliance 
with the standard. NRDC and ASAP asserted that since such a change 
would be a revision in the calculation of test data, it would therefore 
not impose any additional testing burden on manufacturers. (NRDC and 
ASAP, No. 12 at pp. 3-5)
---------------------------------------------------------------------------

    \9\ Kunkel Water Efficiency Consulting. 2017. Report on the 
Evaluation of Water Audit Data for Pennsylvania Water Utilities. 
www.nrdc.org/resources/report-evaluation-water-audit-data-pennsylvania-water-utilities.
    \10\ Kunkel Water Efficiency Consulting. 2017. Report on the 
Evaluation of Water Audit Data for New Jersey Water Utilities. 
www.nrdc.org/sites/default/files/nj-utilities-water-audit-data-evaluation-20170110.pdf.
    \11\ Water Audit Reference dataset (``WARD'') summary data is 
accessible at www.awwa.org/Resources-Tools/Resource-Topics/Water-Loss-Control/Free-Water-Audit-Software.
---------------------------------------------------------------------------

    PMI commented that DOE's current test method of averaging results 
at different test pressure should remain unchanged. PMI stated that the 
requirements are consistent with the industry standards, and that any 
deviations from these requirements could result in an unnecessary cost 
burden to manufacturers. (PMI, No. 12 at p. 1)
    DOE carefully reviewed the data provided by NRDC and ASAP. DOE 
notes that the water pressures identified in the datasets provided are 
system pressures (i.e., pressure at the utility), and not the pressures 
at the point of installation, where water closets and urinals are 
connected. The water pressure within the system lines may not 
correspond to the water pressure at the point of installation of 
products within a building, as explained in the following paragraphs. 
As such, the range of system pressures presented is not directly 
relevant to appropriate test pressure for water closets and urinals.
    DOE does not have data and is not aware of national level data 
regarding the range of water pressures at point of product 
installation. However, the range of pressures specified in the DOE test 
procedures (i.e., 20 psi minimum to 80 psi maximum) represent the range 
of pressures expected to be experienced at the point of product 
installation, for the reasons that follow. In locations at which the 
system pressure is greater than 80 psi, pressure reducing valves would 
likely be used to prevent damage to customer plumbing, hot water 
heaters, and other customer devices.\12\ This supports using 80 psi as 
the maximum test pressure required for appendix T, absent point-of-
installation data. Relevant to the defining minimum test pressures, DOE 
notes that water pressure within a building may vary based on location 
of installation (i.e., water pressure typically decreases at upper 
building levels). Additionally, water pressure may fluctuate based on 
water demand within a building at the time of use (e.g., multiple water 
consuming appliances being operated at the same time).
---------------------------------------------------------------------------

    \12\ Per the 2021 Uniform Plumbing Code (``UPC'')--which 
represents the most current approaches in the plumbing field, is 
developed under the American National Standards Institute (``ANSI'') 
Consensus process, and is designated as an American National 
Standard by ANSI--for water supply piping exceeding 80 psi, an 
``approved-type pressure regulator preceded by an adequate strainer 
shall be installed and the static pressure reduced to 80 psi or 
less.''
---------------------------------------------------------------------------

    Both the Pennsylvania and New Jersey reports discuss that the ``Ten 
State Standards'' \13\ stipulate that water systems ``shall be designed 
to maintain a minimum pressure of 20 psi at ground level at all points 
in the distribution system under all conditions of flow.'' This 
supports using 20 psi as the minimum test pressure required for 
appendix T (for tank-type water closets), absent point-of-installation 
data.
---------------------------------------------------------------------------

    \13\ ``Water Supply Committee of the Great Lakes-Upper 
Mississippi River Board of State and Provincial Public Health and 
Environmental Managers Recommended Standards for Water Works''.
---------------------------------------------------------------------------

    EPCA requires that the test procedures for water closets and 
urinals be reasonably designed to produce test results which reflect 
water use during a representative average use cycle. (42 U.S.C. 
6293(b)(3)) As discussed, the water pressure at point of installation 
of water closet or urinal may vary from location to location and may 
also vary at a given location depending on competing water demands at 
the time of operation. Commenters' suggestion to require compliance at 
each test pressure would effectively result in test measurements 
representative of operation at the upper and lower ends of the range of 
pressures expected in the field, rather than reflecting representative 
average performance across the range of varying water pressures. 
Moreover, commenters' suggestion would effectively result in a water 
closet or urinal basic model being subject to more than one standard, 
without clear statutory authorization for more than one standard for 
this product. (See 42 U.S.C. 6292(6)(a)). Therefore, in this final 
rule, DOE is maintaining the current test pressures and the requirement 
to average flush volume across test pressures.
    In the May 2021 NOPR, DOE also proposed to remove the static 
pressure requirements for flushometer valve

[[Page 16381]]

water closets (with a siphonic bowl and blowout bowl) in section 
3.a.(ii) of appendix T, and instead reference the static pressure 
requirement provided in Table 5 of ASME A112.19.2-2018. DOE noted that 
the static pressure was specified in appendix T only because ASME 
A112.19.2-2008 (the version of the standard incorporated by reference 
in appendix T) published incorrect static pressure requirements for 
flushometer valve water closets; however, this is now corrected in ASME 
A112.19.2-2018. Finally, in Section 3.b of appendix T, DOE proposed to 
replace the reference to Section 8.6.4 of ASME A112.19.2-2008 with 
Table 6 of ASME A112.19.2-2018 to directly reference the test 
pressures. DOE noted that while Section 8.6.4 references Table 6 for 
the required test pressures, Section 8.6.4 also provides performance 
specifications that are not relevant for the purpose of meeting DOE 
water use standards in 10 CFR 430.32(r). DOE requested comment on all 
the proposals. 86 FR 27281, 27285, 27288-27289. DOE did not receive any 
specific comments on these proposals. For the reasons discussed in this 
paragraph and in the May 2021 NOPR, DOE incorporates these edits in 
this final rule.

E. Additional Directions Regarding Recorded & Calculated Values

    Appendix T provides additional direction regarding the resolution 
of the recorded values; rounding of recorded and calculated values; and 
test set-up as it relates to manufacturer installation instructions, 
which are not specified in the industry test standard, but needed for 
compliance purposes. In the May 2021 NOPR, DOE proposed to maintain the 
additional direction in appendix T. 86 FR 27281, 27289. In response, 
NRDC and ASAP agreed that the additional directions to the industry 
standard in appendix T need to be maintained. (NRDC and ASAP, No. 12 at 
p. 1) DOE continues to maintain the additional directions in this final 
rule.
    DOE also received several comments in response to the May 2021 NOPR 
regarding the instrument resolution required by the ASME and DOE test 
procedures. NRDC and ASAP commented that the ASME standard requires an 
apparatus capable of reading increments not exceeding 0.07 gallons and 
this lets the results of each test run be rounded down to the nearest 
0.07 gallons. NRDC and ASAP asserted that this allows results that may 
not be representative, or results that may mask differences in 
performance between models, and allows products to exceed the standard 
by 0.07 gallons per flush. They noted that the DOE certification 
reports require rounding to the nearest 0.01 gallons. Accordingly, NRDC 
and ASAP recommended that DOE increase the required resolution of the 
test procedure water use measurement to 0.01 gallons and require 
rounding the test results to the nearest 0.01 gallons. Alternatively, 
they commented that absent more precise measurement increments, DOE 
should consider increasing the number of repetitions at each pressure 
to five tests and require five models to be tested for each basic 
model. (Efficiency Advocates, No. 12 at pp. 1-3)
    PMI opposed DOE implementing an instrument resolution of 0.01 
gallons and urged DOE to maintain the current resolution 
specifications. PMI stated that changing the industry standard 
specification of rounding down to the nearest 0.07 gallon would cause 
some water closets that are currently compliant with standards to no 
longer be compliant. PMI stated that although the instruments and 
equipment have a resolution of 0.01 gallons and fall within the 
tolerances of calibration, fill valves on plumbing products are inexact 
and often have variations between flushes that are greater than 0.01 
gallons. PMI stated that this is impacted by the water line and by 
manufacturing tolerances. PMI asserted that manufacturers need to be 
able to round down the total flush volume to the nearest 0.07 gallons 
to account for such factors. PMI stated that changing the current 
instrument resolution of 0.07 to a value of 0.01 to match the DOE 
reporting requirements would require manufacturers and test labs to 
provide additional investments in equipment and training, as well as 
the necessary re-testing and re-certification. PMI stated that it is 
unaware of any effort to subvert the water saving goals provided by the 
current test procedures, and that third party testing and certification 
requirements in Section 7.3 of ASME A112.19.2/CSA B45.1 adds additional 
layers of safeguards against such manipulation. (PMI, No. 13 at p. 2)
    The rounding resolution in Sections 7.3.2 and 8.6.1 of ASME 
A112.19.2-2018 reflects the resolution specifications of the equipment 
required for use in the test procedures, including the receiving 
vessel, the load cell and other apparatus capable of measuring volumes 
(at 0.07 gallons, or 0.25 liters). As noted by PMI, although the 
instruments and equipment used in testing often have a resolution of 
0.01 gallons, the larger tolerance at 0.07 gallons is to allow 
variations with inexact fill valves and manufacturing tolerances. 
Further, Section 7.3.3 and 8.6.2 of ASME A112.19.2-2018 requires that 
the tests be repeated three times at each of the test pressures. In 
addition, DOE sampling requirements for represented values of water 
consumption require that the minimum number of units tested shall be no 
fewer than two. See 10 CFR 429.30 and 10 CFR 429.31. As discussed in 
the May 2021 NOPR, a basic model must comply with the applicable energy 
conservation standard to be distributed in commerce. Individual test 
measurements may vary within the sample for a given basic model, but 
all of the measurement cannot systemically test more consumptive than 
the standard when certification testing is being conducted in order to 
obtain a valid representation. With no fewer than two sample units per 
basic model and three runs per unit, DOE believes the variation in the 
final represented value will be minimal.
    Consistent with comments from PMI, DOE has no evidence to suggest 
that manufacturers are using rounding requirements as a means to 
exploit compliance with water conservation standards for these 
products. DOE expects that changes in equipment resolution and rounding 
requirements or any considerations to increase repetitions at each 
pressure would require currently certified water closets and urinals to 
be retested and recertified. Requiring improved resolution or more 
tests would create additional manufacturer burden without clear 
benefits, given the testing and sampling requirements discussed. For 
all the reasons presented, DOE is maintaining the current 
specifications in appendix T regarding measurement and rounding 
specifications.

F. Connected and Electronic Products

    In response to the May 2021 NOPR, CA IOUs commented that they 
support DOE continuing to evaluate integrating connected (i.e., Smart 
Technology) products. They also stated that in part due to the COVID-19 
Pandemic, they expect more widespread adoption of electronic, hand-free 
flushing operations for water closets and urinals. As such, they are 
concerned that future demand may increase standby energy consumption in 
the future. They encouraged DOE to further evaluate touchless 
technology and sensors including ultrasonic, mechanical vibration-based 
approaches, and radio-frequency identification readers. However, CA 
IOUs commented that they do not believe the current test procedures 
impedes any advances in ``smart'' functionalities. (CA IOUs, No. 11 at 
p. 3) At this time, DOE is not making any changes to the test 
procedures to incorporate ``smart''

[[Page 16382]]

functionalities or electronic operation but will continue to evaluate 
any new technologies in future rulemakings.

G. Clarifications to 10 CFR 430.23 and Appendix T

    In the May 2021 NOPR, DOE proposed to replace the language ``the 
maximum permissible water use allowed'' in 10 CFR 430.23(u) and 10 CFR 
430.23(v) with ``the water use''. DOE noted that this amendment would 
clarify that the DOE test procedures measure water use, whereas the 
standards in 10 CFR 430.32(q) and (r) establish the maximum allowable 
water use for water closets and urinals, respectively. DOE requested 
comment on this proposal. 86 FR 27281, 27290. DOE did not receive any 
comments on this proposal. For the reasons discussed in the May 2021 
NOPR, DOE incorporates these edits in this final rule.
    In this final rule, DOE has also modified 10 CFR 430.23(q) to 
incorporate all water closet types and their maximum flush rates into 
one centralized table. The dates when each energy conservation 
standards are applicable are shown in the table. This section was 
updated for ease of reading and added clarity only. DOE notes that the 
energy conservation standards based on each water closet type remains 
unchanged with this update.
    In this final rule, DOE has also added additional clarification in 
appendix T to describe that when measuring the flush volume at a given 
pressure, manufacturers are to average the individual flush volumes at 
a given pressure from the three tests. The final measured flush volume 
for each unit, is the average of the total flush volumes recorded at 
each test pressure. This update aligns with the industry standard and 
does not change current practices. The additions only provide clarity 
to the order of averaging tests when conducting the flush volume test 
for water closets and urinals. As such, DOE has adopted these 
clarifications in this final rule.
    Lastly, in this final rule, DOE has made minor editorial changes to 
some of the language in appendix T to improve readability. This 
includes text consistent with ASME A112.19.2-2018 clarifying the 
sequence of averaging and converting the water closet standards from 
text into a chart substantively the same as the proposed regulatory 
text. These edits do not impact the results of the test procedure and 
as such, are adopted in this final rule.

H. Test Procedure Costs

    In this final rule, DOE amends the test procedures for water 
closets and urinals to reference the most recent update to the relevant 
industry standard, ASME 112.19.2-2018. In addition, DOE is also 
amending certain definitions, and adding definitions for a number of 
terms which are currently used in the Federal test procedures but not 
defined. The adopted amendments are consistent with current industry 
standards, and therefore would not impact the measured values of water 
use for water closets and urinals under appendix T, assuming current 
industry practice is to follow those standards. In accordance with 
EPCA, DOE has determined that these adopted amendments will not be 
unduly burdensome for manufacturers to conduct. Further, DOE has 
determined that the adopted test procedure amendments will not impact 
testing costs already experienced by manufacturers.

I. Effective and Compliance Dates

    The effective date for the adopted test procedure amendment will be 
30 days after publication of this final rule in the Federal Register. 
EPCA prescribes that all representations of energy efficiency and 
energy use, including those made on marketing materials and product 
labels, must be made in accordance with an amended test procedure, 
beginning 180 days after publication of the final rule in the Federal 
Register. (42 U.S.C. 6293(c)(2)) EPCA provides an allowance for 
individual manufacturers to petition DOE for an extension of the 180-
day period if the manufacturer may experience undue hardship in meeting 
the deadline. (42 U.S.C. 6293(c)(3)) To receive such an extension, 
petitions must be filed with DOE no later than 60 days before the end 
of the 180-day period and must detail how the manufacturer will 
experience undue hardship. (Id.)

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget (``OMB'') has determined this 
test procedure rulemaking does not constitute a ``significant 
regulatory action'' under section 3(f) of Executive Order (``E.O.'') 
12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). 
Accordingly, this action was not subject to review under the Executive 
Order by the Office of Information and Regulatory Affairs (``OIRA'') in 
OMB.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a final regulatory flexibility analysis (FRFA) for any 
final rule where the agency was first required by law to publish a 
proposed rule for public comment, unless the agency certifies that the 
rule, if promulgated, will not have a significant economic impact on a 
substantial number of small entities. As required by Executive Order 
13272, ``Proper Consideration of Small Entities in Agency Rulemaking,'' 
67 FR 53461 (August 16, 2002), DOE published procedures and policies on 
February 19, 2003 to ensure that the potential impacts of its rules on 
small entities are properly considered during the DOE rulemaking 
process. 68 FR 7990. DOE has made its procedures and policies available 
on the Office of the General Counsel's website: <a href="http://energy.gov/gc/office-general-counsel">energy.gov/gc/office-general-counsel</a>.
    In the May 2021 NOPR, DOE tentatively concluded that the impacts of 
the test procedure amendments proposed in the NOPR would not have a 
``significant economic impact on a substantial number of small 
entities,'' and that the preparation of an initial regulatory 
flexibility analysis (IRFA) was not warranted, and that DOE would 
transmit the certification and supporting statement of factual basis to 
the Chief Counsel for Advocacy of the Small Business Administration for 
review.
    As stated, the amendments adopted in this final rule amend the test 
procedures for water closets and urinals, consistent with the most 
recent version of the referenced industry standard. In addition, DOE 
amends certain definitions, and adds definitions for the terms 
currently used in the Federal test procedures, but not currently 
defined. DOE has determined that the adopted test procedure amendments 
would not impact testing costs already experience by manufacturers.
    The amendments adopted in this final rule would not have 
significant economic impact on small businesses. The Small Business 
Administration (``SBA'') considers a business entity to be a small 
business, if, together with its affiliates, it employs less than a 
threshold number of workers or earns less than the average annual 
receipts specified in 13 CFR part 121. The threshold values set forth 
in these regulations use size standards and codes established by the 
North American Industry Classification System (``NAICS'').\14\ DOE used 
three NAICS

[[Page 16383]]

codes to cover all potential products for this rulemaking: 327110 
(pottery, ceramics, and plumbing fixture manufacturing); 326191 
(plastics plumbing fixture manufacturing); 332999 (all other 
miscellaneous fabricated metal product manufacturing). The threshold 
for NAICS classification code 327110 (pottery, ceramics, and plumbing 
fixture manufacturing), which includes most urinals and water closets 
covered by this rulemaking, is 1,000 employees or fewer. The threshold 
for NAICS classification codes 326191 (plastics plumbing fixture 
manufacturing) and 332999 (all other miscellaneous fabricated metal 
product manufacturing) is 750 employees or fewer. Since NAICS 
classification code 327110 includes the majority of water closet and 
urinal manufacturing and DOE assumes that most, if not all, water 
closet and urinal manufacturers make at least some products covered by 
that NAICS classification code, DOE used the more conservative 1,000 
employee threshold value for this regulatory flexibility analysis.
---------------------------------------------------------------------------

    \14\ The size standards are listed by NAICS code and industry 
description and are available at: www.sba.gov/document/support--table-size-standards (Last accessed on December 1, 2021).
---------------------------------------------------------------------------

    DOE collected data from DOE's compliance certification database to 
identify manufacturers of water closets and urinals.\15\ DOE then 
consulted publicly-available data and contacted manufacturers, where 
needed, to determine if they meet the SBA's definition of a ``small 
business'' and have their manufacturing facilities located within the 
United States. Based on this analysis, DOE identified 19 small 
businesses that manufacture either water closets or urinals covered by 
the proposed test procedures. As noted previously, DOE concluded in the 
May 2021 NOPR that the proposed amendments to the test procedure would 
not have a ``significant economic impact on a substantial number of 
small entities'' because the amendments to the test procedure are 
largely updates to harmonize the DOE test procedure with the industry 
test procedure currently in use, and these updates will not increase 
the cost of testing nor require retesting and recertification of basic 
models.
---------------------------------------------------------------------------

    \15\ Certified equipment in the CCD are listed by product class 
and can be accessed at www.regulations.doe.gov/certification-data/#q=Product_Group_s%3A* (Last accessed December 1, 2021).
---------------------------------------------------------------------------

    For the same reasons discussed in the May 2021 NOPR, DOE concludes 
that the cost effects accruing from the final rule would not have a 
``significant economic impact on a substantial number of small 
entities,'' and that the preparation of a FRFA is not warranted. DOE 
has submitted a certification and supporting statement of factual basis 
to the Chief Counsel for Advocacy of the Small Business Administration 
for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of water closets and urinals must certify to DOE that 
their products comply with any applicable energy conservation 
standards. To certify compliance, manufacturers must first obtain test 
data for their products according to the DOE test procedures, including 
any amendments adopted for those test procedures. DOE has established 
regulations for the certification and recordkeeping requirements for 
all covered consumer products and commercial equipment, including water 
closets and urinals. (See generally 10 CFR part 429.) The collection-
of-information requirement for the certification and recordkeeping is 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement has been approved by OMB under OMB control 
number 1910-1400. Public reporting burden for the certification is 
estimated to average 35 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act of 1969

    In this final rule, DOE establishes test procedure amendments that 
it expects will be used to develop and implement future energy 
conservation standards for water closets and urinals. DOE has 
determined that this rule falls into a class of actions that are 
categorically excluded from review under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing 
regulations at 10 CFR part 1021. Specifically, DOE has determined that 
adopting test procedures for measuring energy efficiency of consumer 
products and industrial equipment is consistent with activities 
identified in 10 CFR part 1021, appendix A to subpart D, A5 and A6. 
Accordingly, neither an environmental assessment nor an environmental 
impact statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. 65 FR 13735. DOE examined this final 
rule and determined that it will not have a substantial direct effect 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. EPCA governs and prescribes Federal 
preemption of State regulations as to energy conservation for the 
products that are the subject of this final rule. States can petition 
DOE for exemption from such preemption to the extent, and based on 
criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is 
required by Executive Order 13132.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal 
agencies the general duty to adhere to the following requirements: (1) 
Eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigation; (3) provide a clear legal standard for affected 
conduct rather than a general standard; and (4) promote simplification 
and burden reduction. Section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation (1) clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses

[[Page 16384]]

other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires executive agencies to review regulations 
in light of applicable standards in sections 3(a) and 3(b) to determine 
whether they are met, or it is unreasonable to meet one or more of 
them. DOE has completed the required review and determined that, to the 
extent permitted by law, this final rule meets the relevant standards 
of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'') 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a regulatory action resulting in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820; also available 
at http://energy.gov/gc/office-general-counsel. DOE examined this final 
rule according to UMRA and its statement of policy and determined that 
the rule contains neither an intergovernmental mandate, nor a mandate 
that may result in the expenditure of $100 million or more in any year, 
so these requirements do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This final rule will not have any impact on the autonomy or integrity 
of the family as an institution. Accordingly, DOE has concluded that it 
is not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this regulation will not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant 
to OMB Memorandum M-19-15, Improving Implementation of the Information 
Quality Act (April 24, 2019), DOE published updated guidelines which 
are available at https://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has 
reviewed this final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB, 
a Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgated or is expected to lead to promulgation of a final 
rule, and that (1) is a significant regulatory action under Executive 
Order 12866, or any successor order; and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use if the regulation is implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    This regulatory action is not a significant regulatory action under 
Executive Order 12866. Moreover, it would not have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as a significant energy action by the Administrator 
of OIRA. Therefore, it is not a significant energy action, and, 
accordingly, DOE has not prepared a Statement of Energy Effects.

L. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the 
Federal Energy Administration Act of 1974, as amended by the Federal 
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; 
``FEAA'') Section 32 essentially provides in relevant part that, where 
a proposed rule authorizes or requires use of commercial standards, the 
notice of proposed rulemaking must inform the public of the use and 
background of such standards. In addition, section 32(c) requires DOE 
to consult with the Attorney General and the Chairman of the Federal 
Trade Commission (``FTC'') concerning the impact of the commercial or 
industry standards on competition.
    The modifications to the test procedure for water closets and 
urinals adopted in this final rule incorporates testing methods 
contained in certain sections of the following commercial standards: 
ASME A112.19.2-2018. DOE has evaluated these standards and is unable to 
conclude whether it fully complies with the requirements of section 
32(b) of the FEAA (i.e., whether it was developed in a manner that 
fully provides for public participation, comment, and review.) DOE has 
consulted with both the Attorney General and the Chairman of the FTC 
about the impact on competition of using the methods contained in these 
standards and has received no comments objecting to their use.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

[[Page 16385]]

N. Description of Materials Incorporated by Reference

    In this final rule, DOE incorporates by reference the test jointly 
published by the American Society of Mechanical Engineers (``ASME'') 
and the Canadian Standards Association (``CSA Group'') designated ASME 
A112.19.2-2018. ASME A112.19.2-2018 is an industry-accepted test 
procedure that measures water consumption for water closets and 
urinals, and is applicable to products sold in North America. 
Specifically, the test procedure codified by this final rule references 
various sections of ASME A112.19.2-2018 that address test setup, 
apparatus, test conduct, and calculations. These sections of ASME 
A112.19.2-2018 are Section 7.1.1 ``All tests,'' Section 7.1.2 ``Gravity 
flush tank water closets,'' Section 7.1.3 ``Flushometer tank, electro-
hydraulic, or other pressurized flushing device water closets,'' 
Section 7.1.4 ``Flushometer valve water closets,'' Section 7.1.5 
``Procedures for standardizing the water supply system,'' Section 7.3 
``Water consumption test,'' Section 8.2.1, Section 8.2.2, and Section 
8.2.3, Section 8.6 ``Water Consumption Test,'' Table 5 ``Static test 
pressures for water closets, kPa (psi),'' and Table 6 ``Static test 
pressures for urinals, kPa (psi).''
    Copies of ASME A112.19.2-2018 may be purchased from the ASME at 
Three Park Avenue, New York, NY 10016, 1-800 843-2763, or by going to 
https://www.asme.org/codes-standards/find-codes-standards/a112-19-2-csa-b45-1-ceramic-plumbing-fixtures?productKey=J0121TM1:J0121TM1.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Incorporation by reference, Intergovernmental relations, Small 
businesses.

Signing Authority

    This document of the Department of Energy was signed on March 17, 
2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary 
for Energy Efficiency and Renewable Energy, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on March 18, 2022.
Treena V. Garrett
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends 10 CFR part 430 
as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.


0
2. Section 430.2 is amended by:
0
a. Adding in alphabetical order definitions for ``Blowout action'' and 
``Blowout bowl'';
0
b. Removing the definition for ``Blowout toilet'';
0
c. Removing the definition of ``Electromechanical hydraulic toilet'' 
and adding in its place a definition for ``Electromechanical hydraulic 
water closet''; and
0
d. Adding in alphabetical order definitions for ``Gravity flush tank 
water closet'', ``Siphonic action'', ``Siphonic bowl'', and ``Trough-
type urinal''.
    The additions read as follows:


Sec.  430.2  Definitions.

* * * * *
    Blowout action means a means of flushing a water closet whereby a 
jet of water directed at the bowl outlet opening pushes the bowl 
contents into the upleg, over the weir, and into the gravity drainage 
system.
    Blowout bowl means a non-siphonic water closet bowl with an 
integral flushing rim, a trap at the rear of the bowl, and a visible or 
concealed jet that operates with a blowout action.
* * * * *
    Electromechanical hydraulic water closet means any water closet 
that utilizes electrically operated devices, such as, but not limited 
to, air compressors, pumps, solenoids, motors, or macerators in place 
of or to aid gravity in evacuating waste from the toilet bowl.
* * * * *
    Gravity flush tank water closet means a water closet designed to 
flush the bowl with water supplied by gravity only.
* * * * *
    Siphonic action means the movement of water through a flushing 
fixture by creating a siphon to remove waste material.
    Siphonic bowl means a water closet bowl that has an integral 
flushing rim, a trap at the front or rear, and a floor or wall outlet, 
and operates with a siphonic action (with or without a jet).
* * * * *
    Trough-type urinal means a urinal designed for simultaneous use by 
two or more people.
* * * * *

0
3. Section 430.3 is amended by revising paragraph (a) and the 
introductory text to paragraph (h) and adding paragraph (h)(3) to read 
as follows:


Sec.  430.3  Materials incorporated by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other 
than that specified in this section, the U.S. Department of Energy 
(DOE) must publish a document in the Federal Register and the material 
must be available to the public. All approved material is available for 
inspection at the DOE and at the National Archives and Records 
Administration (NARA). Contact DOE at: The U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Building Technologies 
Program, Sixth Floor, 950 L'Enfant Plaza SW, Washington, DC 20024, 
(202) 586-9127, <a href="/cdn-cgi/l/email-protection#84c6f1ede8e0edeae3f7c4e1e1aae0ebe1aae3ebf2"><span class="__cf_email__" data-cfemail="91d3e4f8fdf5f8fff6e2d1f4f4bff5fef4bff6fee7">[email protected]</span></a>, https://www.energy.gov/eere/buildings/appliance-and-equipment-standards-program. For information on 
the availability of this material at NARA, email: 
<a href="/cdn-cgi/l/email-protection#761004581f1805061315021f1918361817041758111900"><span class="__cf_email__" data-cfemail="abcdd985c2c5d8dbcec8dfc2c4c5ebc5cad9ca85ccc4dd">[email protected]</span></a>, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html. The material may be obtained from the sources 
in the following paragraphs of this section.
* * * * *
    (h) ASME. American Society of Mechanical Engineers, Three Park 
Avenue, New York, NY 10016-5990, 1-800 843-2763, or go to www.asme.org.
* * * * *
    (3) ASME A112.19.2-2018/CSA B45.1-18 (``ASME A112.19.2-2018''), 
``Ceramic plumbing fixtures'', July 2018 (including Errata--October 
2018); IBR approved for appendix T to subpart B.
* * * * *

[[Page 16386]]


0
4. Section 430.23 is amended by revising paragraphs (u) and (v) to read 
as follows:


Sec.  430.23   Test procedures for the measurement of energy and water 
consumption.

* * * * *
    (u) Water closets. Measure the water use for water closets, 
expressed in gallons or liters per flush (gpf or Lpf), in accordance 
with section 3(a) of appendix T to this subpart.
    (v) Urinals. Measure the water use for urinals, expressed in 
gallons or liters per flush (gpf or Lpf), in accordance with section 
3(b) of appendix T to this subpart.
* * * * *

0
5. Appendix T to subpart B of part 430 is revised to read as follows:

Appendix T to Subpart B of Part 430--Uniform Test Method for Measuring 
the Water Consumption of Water Closets and Urinals

    Note:  After September 19, 2022, representations made with 
respect to the water consumption of water closets or urinals must 
fairly disclose the results of testing pursuant to this appendix.

    On or after April 22, 2022 and prior to September 19, 2022 
representations, including compliance certifications, made with 
respect to the water consumption of water closets or urinals must 
fairly disclose the results of testing pursuant to either this 
appendix or the appendix as it appeared at 10 CFR part 430, subpart 
B, in the 10 CFR parts 200 to 499 edition revised as of January 1, 
2014. Representations made with respect to the water consumption of 
water closets or urinals tested within that range of time must 
fairly disclose the results of testing under the selected version. 
Given that after September 19, 2022 representations with respect to 
the water consumption of water closets and urinals must be made in 
accordance with tests conducted pursuant to this appendix, 
manufacturers may wish to begin using this test procedure as soon as 
possible.

0. Incorporation by Reference

    DOE incorporated by reference in Sec.  430.3, the entire 
standard for ASME A112.19.2-2018; however, only enumerated 
provisions of that document apply to this appendix, as follows. 
Treat precatory language in ASME A112.19.2-2018 as mandatory for the 
purpose of testing.
    a. Section 7.1.1 ``All tests,'' including Figures 11 and 12, as 
specified in section 2.a of this appendix;
    b. Section 7.1.2 ``Gravity flush tank water closets,'' as 
specified in section 2.a of this appendix;
    c. Section 7.1.3 ``Flushometer tank, electro-hydraulic, or other 
pressurized flushing device water closets,'' as specified in section 
2.a of this appendix;
    d. Section 7.1.4 ``Flushometer valve water closets,'' as 
specified in section 2.a of this appendix;
    e. Section 7.1.5 ``Procedures for standardizing the water supply 
system,'' including Figures 11 and 12, as specified in section 2.a 
of this appendix;
    f. Section 7.3 ``Water consumption test,'' as specified in 
section 3.a of this appendix, except sections 7.3.4 and 7.3.5;
    f. Section 8.2.1, including Figure 12, as specified in section 
2.b of this appendix;
    g. Section 8.2.2, as specified in section 2.b of this appendix;
    h. Section 8.2.3, as specified in section 2.b of this appendix;
    i. Section 8.6 ``Water Consumption Test,'' as specified in 
section 3.b of this appendix, except sections 8.6.3 and 8.6.4;
    j. Table 5 ``Static test pressures for water closets, kPa 
(psi),'' as specified in sections 2.a and 3.a of this appendix; and
    k. Table 6 ``Static test pressures for urinals, kPa (psi)'' as 
specified in sections 2.a and 3.a of this appendix.
    In cases where there is a conflict, the language of the test 
procedure in this appendix takes precedence over ASME A112.19.2-
2018.

1. Scope

    This appendix sets forth the test requirements used to measure 
the hydraulic performances of water closets and urinals.

2. Test Apparatus and General Instructions

    a. When testing a water closet, use the test apparatus and 
follow the instructions specified in Sections 7.1.1 (including Table 
5), 7.1.2, 7.1.3, 7.1.4, and 7.1.5 of ASME A112.19.2-2018). The 
flushometer valve used in the water consumption test must represent 
the maximum design flush volume of the water closet. Record each 
measurement at the resolution of the test apparatus. Round each 
calculation of water consumption for each tested unit to the same 
number of significant digits as the previous step.
    b. When testing a urinal, use the test apparatus and follow the 
instructions specified in Sections 8.2.1, 8.2.2, and 8.2.3 
(including Table 6) of ASME A112.19.2-2018. The flushometer valve 
used in the water consumption test must represent the maximum design 
flush volume of the urinal. Record each measurement at the 
resolution of the test apparatus. Round each calculation of water 
consumption for each tested unit to the same number of significant 
digits as the previous step.

3. Test Measurement

    a. Water closets:
    (i) Measure the water flush volume for water closets, expressed 
in gallons per flush (gpf) or liters per flush (Lpf), in accordance 
with Section 7.3, Water Consumption Test, of ASME A112.19.2-2018. 
For dual-flush water closets, the measurement of the water flush 
volume shall be conducted separately for the full-flush and reduced-
flush modes and in accordance with the test requirements specified 
Section 7.3, Water Consumption Test, of ASME A112.19.2-2018. The 
final measured flush volume for each tested unit is the average of 
the total flush volumes recorded at each test pressure as specified 
in Table 5 ``Static test pressures for water closets, kPa (psi),'' 
of ASME A112.19.2-2018, based on the average of the individual flush 
volumes at a given pressure from the three tests.
    (ii) Flush volume and tank trim component adjustments: For 
gravity flush tank water closets, set trim components that can be 
adjusted to cause an increase in flush volume, including (but not 
limited to) the flapper valve, fill valve, and tank water level, in 
accordance with the printed installation instructions supplied by 
the manufacturer with the unit. If the printed installation 
instructions for the model to be tested do not specify trim setting 
adjustments, adjust these trim components to the maximum water use 
setting so that the maximum flush volume is produced without causing 
the water closet to malfunction or leak. Set the water level in the 
tank to the maximum water line designated in the printed 
installation instructions supplied by the manufacturer or the 
designated water line on the tank itself, whichever is higher. If 
the printed installation instructions or the water closet tank do 
not indicate a water level, adjust the water level to 1<plus-
minus>0.1 inches below the top of the overflow tube or, for gravity 
flush tank water closets that do not contain an overflow tube, 
1<plus-minus>0.1 inches below the top rim of the water-containing 
vessel for each designated pressure specified in Table 5 of ASME 
A112.19.2-2018.
    b. Urinals--Measure water flush volume for urinals, expressed in 
gallons per flush (gpf) or liters per flush (Lpf), in accordance 
with Section 8.6, Water Consumption Test, of ASME A112.19.2-2018. 
The final measured flush volume for each tested unit is the average 
of the total flush volumes recorded at each test pressure as 
specified in Table 6 ``Static test pressures for urinals, kPa 
(psi),'' of ASME A112.19.2-2018, based on the average of the 
individual flush volumes at a given pressure from the three tests.


0
6. Section 430.32 is amended by revising paragraph (q) to read as 
follows:


Sec.  430.32   Energy and water conservation standards and their 
compliance dates.

* * * * *
    (q) Water closets. The maximum water use allowed in gallons per 
flush for any of the following water closets is as follows:

[[Page 16387]]



------------------------------------------------------------------------
                                        Maximum flush rate (gpf (Lpf))
                                     -----------------------------------
          Water closet type             Manufactured      Manufactured
                                      after January 1,  after January 1,
                                            1994              1997
------------------------------------------------------------------------
(1) Gravity flush tank water closet.         1.6 (6.0)         1.6 (6.0)
(2) Flushometer tank water closet...         1.6 (6.0)         1.6 (6.0)
(3) Electromechanical hydraulic              1.6 (6.0)         1.6 (6.0)
 water closet.......................
(4) Blowout bowl water closet.......        3.5 (13.2)        3.5 (13.2)
(5) Flushometer valve water closets,  ................         1.6 (6.0)
 other than those with blowout bowls
------------------------------------------------------------------------

* * * * *
[FR Doc. 2022-06138 Filed 3-22-22; 8:45 am]
BILLING CODE 6450-01-P


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