AGENCY:

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

ACTION:

Request for information.

SUMMARY:

The U.S. Department of Energy (DOE) is initiating a data collection process, through this request for information (RFI), to consider whether to amend DOE's test procedures for water closets and urinals. To inform interested parties and to facilitate this process, DOE has gathered data, identifying several issues associated with the currently applicable test procedures on which DOE is interested in receiving comment. The issues outlined in this document concern water closets and urinals, specifically whether to conform the test procedures to American Society of Mechanical Engineers/American National Standards Institute (“ASME/ANSI”) Standard A112.19.2-2018, “Ceramic plumbing fixtures,” including updates to terms and definitions, figures, and tables. DOE welcomes written comments from the public on any subject within the scope of this document (including topics not raised in this RFI) and any additional topics that may inform DOE's decisions in a future test procedure rulemaking, including methods to reduce regulatory burden while ensuring the procedure is reasonably designed to produce results that measure water use or efficiency during a representative average use cycle or period of use.

DATES:

Written comments, data, and information are requested and will be accepted on or before September 4, 2019.

ADDRESSES:

Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at https://www.regulations.gov. Follow the instructions for submitting comments. Alternatively, interested persons may submit comments, identified by docket number EERE-2017-BT-TP-0028, by any of the following methods:

1. Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.

2. Email: PlumbingProducts2017TP0028@ee.doe.gov. Include the docket number EERE-2017-BT-TP-0028 in the subject line of the message.

3. Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-1445. If possible, please submit all items on a compact disc (“CD”), in which case it is not necessary to include printed copies.

4. Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW, Suite 600, Washington, DC 20024. Telephone: (202) 287-1445. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document.

Docket: The docket for this activity, which includes Federal Register notices, comments, and other supporting documents/materials, is available for review at https://www.regulations.gov. All documents in the docket are listed in the https://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.

The docket web page can be found at https://energy.gov/​eere/​buildings/​standards-and-test-procedures. The docket web page will contain simple instructions on how to access all documents, including public comments, in the docket. See section III for information on how to submit comments through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-1604. Email: ApplianceStandardsQuestions@ee.doe.gov.

Ms. Jennifer Tiedeman, U.S. Department of Energy, Office of the General Counsel, GC- 33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-6111. Email: Jennifer.Tiedeman@hq.doe.gov.

For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email: ApplianceStandardsQuestions@ee.doe.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

A. Authority and Background

B. Rulemaking History

II. Request for Information

A. Scope and Definitions

B. Test Procedure

C. Other Test Procedure Topics

III. Submission of Comments

I. Introduction

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. 6292(a)(17) and (18)) DOE's test procedures for water closets and urinals are prescribed at 10 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 and amend test procedures for water closets and urinals, as well as relevant background information regarding DOE's consideration of test procedures for these products.

A. Authority and Background

The Energy Policy and Conservation Act of 1975, as amended (“EPCA”),^[1] among other things, authorizes DOE to regulate the energy efficiency or water use, of a number of consumer products and industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B ^[2] of EPCA establishes the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency or water use. These products include water closets and urinals, the subject of this RFI. (42 U.S.C. 6292(a)(17) and (18))

The energy conservation program under EPCA, which includes water use requirements, consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards,^[3] and (4) certification and enforcement procedures. Relevant provisions of the Act specifically include definitions (42 U.S.C. 6291), energy conservation standards (42 U.S.C. 6295), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency and water use requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (See 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))

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. 6295(s)), and (2) making certain other representations about the water use of those products. (42 U.S.C. 6293(c)) Similarly, DOE must use these test procedures to determine whether the products comply with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

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 reasonably designed to produce test results which measure energy efficiency, energy use, water use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In addition, 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))

EPCA directs that the test procedures for water closets and urinals are to be the test procedures specified in ASME/ANSI 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 ANSI, DOE must amend the Federal test procedures to conform to the revised ASME 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))

EPCA also requires that, at least once every 7 years, DOE evaluate the 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 to be unduly burdensome to conduct. (42 U.S.C. 6293(b)(1)(A)) 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. 6293(b)(2)) The comment period on a proposed rule to amend a test procedure shall be at least 60 days and may not exceed 270 days. Id. 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. Id. If DOE determines that test procedure revisions are not appropriate, DOE must publish its determination not to amend the test procedures. DOE is publishing this RFI to collect data and information to inform a potential test procedure rulemaking in response to revisions to the ASME standard and pursuant to the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(8)(B); 42 U.S.C. 6293(b)(1)(A))

B. Rulemaking History

DOE's current test procedures for water closets and urinals are found in 10 CFR 430.23(u) and (v), respectively, and Appendix T. DOE initially established test procedures for water closets and urinals in a final rule published March 8, 1998, which incorporated by reference ASME A112.19.6-1995, then the most recent revision of those requirements. 63 FR 13308.

DOE last amended the test procedures for water closets and urinals on October 23, 2013, (“October 2013 TP final rule”). 78 FR 62970. In that final rule, DOE incorporated by reference ASME A112.19.2-2008, “Ceramic Plumbing Fixtures,” including Update No. 1, dated August 2009, and Update No. 2, dated March 2011 (ASME A112.19.2-2008). ASME A112.19.2-2008 is a consolidation and revision of several documents, including a revised version of the document previously incorporated by reference, ASME A112, 19.6-1995.

In 2013, ASME revised ASME A112.19.2-2008 by issuing ASME A112.19.2-2013, “Ceramic Plumbing Fixtures.” In October 2013 ASME published Update 1 for ASME A112.19.2-2013 (“ASME A112.19.2-2013” refers to both the initial document and Update 1). Because of the timing of the issuance of ASME 112.19.2-2013, DOE did not consider it in the October 2013 TP final rule. In 2018, ASME revised ASME A112.19.2-2013 by publishing ASME A112.19.2-2018 (“ASME A112.19.2-2018” refers to the initial document and the October 2018 errata). ASME A112.19.2-2018 does not contain any substantive differences compared to ASME A112.19.2-2013 with regards to the test method for water consumption.

II. Request for Information

In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether amended test procedures for water closets and urinals may be warranted. DOE requests comment on any opportunities to streamline and simplify testing requirements for these products.

Additionally, DOE welcomes comments on other issues relevant to the conduct of this process. In particular, DOE notes that under Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” Executive Branch agencies such as DOE are directed to manage the costs associated with the imposition of expenditures required to comply with Federal regulations. See 82 FR 9339 (Feb. 3, 2017). Accordingly, DOE encourages the public to provide input on measures DOE could take to lower the cost of its regulations applicable to water closets and urinals consistent with the requirements of EPCA.

A. Scope and Definitions

DOE regulations both define and set standards for water closets and urinals. DOE regulations define “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. In addition, DOE regulations specify standards for gravity tank-type toilets, flushometer tank toilets, electromechanical hydraulic toilets, and blowout toilets. 10 CFR 430.32(q). DOE regulations define “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. 10 CFR 430.2. In addition, DOE's regulations specify standards for urinals, including trough-type urinals. 10 CFR 430.32(r).

Several terms and definitions in ASME A112.19.2-2018 related to water closets and urinals vary from those in DOE regulations, including terms not defined in 10 CFR 430.2. Two such terms relate to products that use electricity to remove waste. First, EPCA and DOE regulations use the term “electromechanical hydraulic toilets” as the name of a product class subject to standards at 42 U.S.C. 6295(k) and 10 CFR 430.32(q), respectively, and DOE defines the term in 10 CFR 430.2. ASME Standard A112.19.2-2018, on the other hand, uses the term “electro-hydraulic water closet,” with a different definition. DOE defines “electromechanical hydraulic toilet” as a 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. 10 CFR 430.2. ASME defines “electro-hydraulic water closet” as a water closet with a non-mechanical trap seal incorporating an electric motor and controller to facilitate flushing. ASME A112.19.2-2018. Both definitions include an electric motor as a mechanism to remove waste; however, DOE views the scope of the term “electromechanical hydraulic toilet” as broader because it also includes other electrically operated devices.

Similarly, two varying terms relate to blowout products.^[4] As with the term “electromechanical hydraulic toilets,” EPCA and DOE regulations use the term “blowout toilet” as the name of a product class subject to its conservation standards, while ASME A112.19.2-2018 uses the term “blowout bowl.” Although the terms are not identical, their definitions are similar. DOE defines “blowout toilet” as a water closet that uses a non-siphonic 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. 10 CFR 430.2. ASME defines “blowout bowl” as a non-siphonic water closet 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. ASME A112.19.2-2018. The only difference between these two definitions is that DOE's definition uses the phrase “water closet that uses a non-siphonic bowl,” while ASME's definition uses the phrase “non-siphonic water closet.” DOE understands these two terms to be synonymous.

In addition, Appendix T uses the terms “gravity flush tank water closet” and “siphonic bowl,” which are defined in ASME A112.19.2-2018 but not defined in DOE regulations.

Aside from the definitional issues arising from revisions to the ASME standard, DOE notes that DOE energy conservation standards for urinals, codified at 10 CFR 430.32(r), use the term “trough-type.” However, neither DOE regulations nor ASME A112.19.2-2018 define this term.

DOE requests information and comment on the following terms and definitions.

1. Whether the term “electro-hydraulic water closet” as defined in ASME A112.19.2-2018 is understood to include the same products as the term “electromechanical hydraulic toilet,” i.e., whether any products meet one definition but not the other. DOE requests comment on the potential impact, including to testing burden, of adopting the term “electro-hydraulic water closet” and the corresponding definition in ASME A112.19.2-2018, as compared to maintaining the current DOE term “electromechanical water closet” and its definition in 10 CFR 430.2.

2. Whether the term “blowout bowl” in ASME A112.19.2-2018 is understood to include the same products as the term “blowout toilet” in DOE regulations, i.e., whether any products meet one definition but not the other. DOE requests comment on the potential impact to the testing burden of adopting the term “blowout bowl” and the corresponding definition in ASME A112.19.2-2018 as compared to maintaining the current DOE term “blowout toilet” and the definition in 10 CFR 430.2.

3. Whether the definitions of the terms “gravity flush tank water closet” and “siphonic bowl” in ASME A112.19.2-2018 are consistent with how industry has understood and applied those terms under DOE regulations. DOE requests comment on the potential impact to the testing burden of adopting the ASME A112.19.2-2018 definitions of “gravity flush tank water closet” and “siphonic bowl.”

4. How to define the term “trough-type” urinal and whether there is an industry definition for this term.

5. How any definitional changes to conform the terms in DOE test procedures with those in ASME A112.19.2-2018 could change the scope of the products subject to the test procedure or standards, or impact the repeatability and reproducibility of the test procedure and its ability to reflect a representative average use cycle or period of use.

B. Test Procedures

Currently, DOE's test procedures for water closets and urinals in Appendix T incorporate by reference ASME A112.19.2-2008,^[5] 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, 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 water closets and urinals.

ASME A112.19.2-2018 included the following amendments to pertinent sections of the 2008 version currently incorporated into 10 CFR part 430: (1) Editorial changes and/or clarification in sections 7.1.2, 7.3.2,^[6] 8.6.4, and Figure 12; (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 do not appear to be relevant to the water consumption test for water closets.

Because DOE views these amendments as clarifications and minor technical corrections, DOE has tentatively determined that the amendments would not impact (1) the measured values of water use for water closets and urinals under Appendix T, (2) the representativeness of the results, or (3) the test burden. DOE requests comment on the validity of these tentative conclusions. If commenters believe that the amendments, if adopted, would impact measured values of water use under the test procedure, DOE is interested in data and information on the nature and extent of any such impact.

C. Other Test Procedure Topics

In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of the existing test procedures for water closets and urinals. DOE recently issued an RFI to seek more information on whether its test procedures are reasonably designed, as required by EPCA, to produce results that measure the energy use or efficiency of a product during a representative average use cycle or period of use. 84 FR 9721 (Mar. 18, 2019). DOE seeks comment on this issue as it pertains to the test procedure for water closets and urinals. DOE also seeks any information that would improve the repeatability and reproducibility of its test procedures.

As noted above, DOE also requests comments on its tentative conclusion that the adoption of the amendments discussed would not result in a test procedure that is unduly burdensome to conduct, particularly in light of any new products on the market since the last test procedure update. If commenters believe that the adoption of the amendments would result in a procedure that is, in fact, unduly burdensome to conduct, DOE seeks information on whether an existing private sector-developed test procedure would be more appropriate.

DOE also requests comment on the benefits and burdens of adopting any industry/voluntary consensus-based or other appropriate test procedure, without modification. As discussed, the current test procedures for water closets and urinals in Appendix T incorporate by reference ASME A112.19.2-2008, 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, Table 5, and Table 6. Other portions of the standard contain general requirements for plumbing fixtures and their components, and test methods for characteristics other than water consumption, such as material, finishes, structural integrity, and specific component functionalities. In order to improve repeatability of the test procedures and the accuracy of reported values, Appendix T also 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. DOE seeks comment on whether these additional directions are necessary to ensure that the test procedure is reasonably designed to measure the water use of water closets and urinals during a representative average use cycle or period of use.

Additionally, DOE requests comment on whether the existing test procedures limit a manufacturer's ability to provide additional features to consumers on water closets and urinals. DOE particularly seeks information on how the test procedures could be amended to reduce the cost of new or additional features and make it more likely that such features are included on water closets and urinals while still meeting the requirements of EPCA. DOE also requests comments on any potential amendments to the existing test procedures that would address impacts on manufacturers, including small businesses.

Finally, DOE recently published an RFI on the emerging smart technology appliance and equipment market. 83 FR 46886 (Sept. 17, 2018). In that RFI, DOE sought information to better understand market trends and issues in the emerging market for appliances and commercial equipment that incorporate smart technology. DOE's intent in issuing the RFI was to ensure that DOE did not inadvertently impede such innovation in fulfilling its statutory obligations in setting efficiency standards for covered products and equipment. DOE seeks comments, data and information on the issues presented in the RFI as they may be applicable to water closets and urinals.

III. Submission of Comments

DOE invites all interested parties to submit in writing by September 4, 2019, comments and information on matters addressed in this notice and on other matters relevant to DOE's consideration of amended test procedures for water closets and urinals. These comments and information will aid in the development of a test procedure notice of proposed rulemaking for water closets and urinals if DOE determines that amended test procedures may be appropriate for these products.

Submitting comments via https://regulations.gov. The https://www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to https://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through https://www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through https://www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to https://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in portable document format (“PDF”) (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: one copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

DOE considers public participation to be a very important part of the process for developing test procedures and energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of the process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this rulemaking should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

Footnotes