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Federal Register / Vol. 86, No. 96 / Thursday, May 20, 2021 / Proposed Rules
N. Compliance Date 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. Description of Materials Incorporated by Reference V. Public Participation A. Participation in the Webinar B. Submission of Comments C. Issues on Which DOE Seeks Comment VI. 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 DOE is authorized to establish and amend water use standards and test procedures. 42 U.S.C. 6292a17 and 18 DOEs test procedures for water closets and urinals are prescribed in the CFR at 10 CFR 430.23u and v, respectively, and 10 CFR part 430
subpart B appendix T Appendix T.
The following sections discuss DOEs authority to establish test procedures for water closets and urinals, as well as relevant background information regarding DOEs consideration of test procedures for this product.
A. Authority The Energy Policy and Conservation Act, as amended EPCA,1 authorizes DOE to regulate the energy efficiency or water use of a number of consumer products and certain industrial equipment. 42 U.S.C. 62916317 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. 6292a17 and 18
The energy conservation program under EPCA, which includes water use requirements, consists essentially of 1 All references to EPCA in this document refer to the statute as amended through Americas Water Infrastructure Act of 2018, Public Law 115270
Oct. 23, 2018.
2 For editorial reasons, upon codification in the U.S. Code, Part B was re-designated Part A.

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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
The Federal 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 pursuant to EPCA 42
U.S.C. 6295s, and 2 making representations about the energy and water use, as applicable, of those consumer products. 42 U.S.C. 6293c Similarly, DOE must use these test procedures to determine whether the products comply with relevant standards promulgated under EPCA. 42
U.S.C. 6295s Federal energy efficiency and water use 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. 6297d Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products.
EPCA requires that any test procedures prescribed or amended under this section be 1 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 or period of use and 2 not be unduly burdensome to conduct. 42
U.S.C. 6293b3
EPCA directs that the test procedures for water closets and urinals are to be the test procedures specified in American Society of Mechanical Engineers A112.19.61990, Hydraulic Requirements for Water Closets and Urinals ASME A112.19.61990. 42
U.S.C. 6293b8A EPCA further 3 The term energy conservation standard includes water use standards for showerheads, faucets, water closets and urinals. 42 U.S.C.
62916A

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directs that, if the requirements of ASME A112.19.61990 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.
6293b8B 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.
6293b2
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 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, and not be unduly burdensome to conduct.
42 U.S.C. 6293b1A. If the Secretary determines, on his 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. 42
U.S.C. 6293b2 The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days.4 Id. In 4 DOE has historically provided a 75-day comment period for test procedure NOPRs, consistent with the comment period requirement for technical regulations in the North American Free Trade Agreement, U.S.-Canada-Mexico NAFTA, Dec. 17, 1992, 32 I.L.M. 289 1993; the North American Free Trade Agreement Implementation Act, Public Law 103182, 107 Stat.
2057 1993 codified as amended at 10 U.S.C.A.
2576 1993 NAFTA Implementation Act; and Executive Order 12889, Implementation of the North American Free Trade Agreement, 58 FR
69681 Dec. 30, 1993. However, Congress repealed the NAFTA Implementation Act and has replaced NAFTA with the Agreement between the United States of America, the United Mexican States, and the United Canadian States USMCA, Nov. 30, 2018, 134 Stat. 11, thereby rendering E.O. 12889
inoperable. Consequently, since the USMCA is consistent with EPCAs public comment period requirements and normally requires only a minimum comment period of 60 days for technical
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