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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules comment on this issue as it pertains to the test procedures for water closets and urinals, as well as information that would help DOE create procedures that are not unduly burdensome to conduct.
Comments regarding repeatability and reproducibility are also welcome.
N. Compliance Date EPCA prescribes that, if DOE amends a test procedure, all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with that amended test procedure, beginning 180 days after publication of such a test procedure final rule in the Federal Register. 42
U.S.C. 6293c2 If DOE were to publish an amended test procedure, 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. 6293c3 To receive such an extension, petitions must be filed with DOE no later than 60
days before the end of the 180-day period following publication 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 that this proposed rule is not a significant regulatory action under section 3f of Executive Order 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 an initial regulatory flexibility analysis IRFA for any rule that by law must be proposed 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
Aug. 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

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has made its procedures and policies available on the Office of the General Counsels website: https energy.gov/
gc/office-general-counsel.
DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE has tentatively concluded that this proposed rule will not have a significant impact on a substantial number of small entities. The factual basis for this determination is as follows:
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 that are available at: https
www.sba.gov/document/support--tablesize-standards. DOE used three NAICS
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.
DOE collected data from DOEs compliance certification database 17 to identify manufacturers of water closets and urinals. DOE then consulted publicly-available data and contacted manufacturers, where needed, to determine if they meet the SBAs definition of a small business and have their manufacturing facilities 17 www.regulations.doe.gov/certification-data Last accessed December 12, 2019.

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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 procedure.
As described in section III.L.1 of this document, the amendments proposed in this test procedure would not increase costs to water closet or urinal manufacturers, including small businesses. Therefore, DOE tentatively concludes that the impacts of the test procedure amendments proposed in this NOPR would not have a significant economic impact on a substantial number of small entities, and that the preparation of an IRFA is not warranted.
DOE will transmit the 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. 605b.
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. 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.
The collection-of-information requirement for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including water closets and urinals has been approved by OMB under OMB control number 19101400. 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. This proposed testing procedures impose no
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