[Federal Register Volume 78, Number 205 (Wednesday, October 23, 2013)]
[Rules and Regulations]
[Pages 62970-62988]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24347]


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DEPARTMENT OF ENERGY

10 CFR Parts 429, 430, and 431

[Docket No. EERE-2011-BT-TP-0061]
RIN 1904-AC65


Energy Conservation Program for Consumer Products and Certain 
Commercial and Industrial Equipment: Test Procedures for Showerheads, 
Faucets, Water Closets, Urinals, and Commercial Prerinse Spray Valves

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

ACTION: Final rule.

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SUMMARY: On May 30, 2012, the U.S. Department of Energy (DOE) issued a 
notice of proposed rulemaking (NOPR) to amend the test procedures for 
showerheads, faucets, water closets, urinals, and prerinse spray 
valves. Following consideration of comments received in response to the 
NOPR, DOE issued a supplemental notice of proposed rulemaking (SNOPR) 
on April 8, 2013. The SNOPR included revisions to the definitions of 
showerhead and hand-held showerhead; removal of body sprays from the 
proposed showerhead definition; requirements pertaining to testing of 
showerheads that are components of shower towers; a standardized test 
method to be used when verifying the mechanical retention of a 
showerhead flow control insert when subject to 8 pounds force (lbf); 
clarification of permissible trim adjustments for tank-type water 
closets; amendments to the required static test pressures to be used 
when testing flushometer valve siphonic and blowout water closets; and 
clarifications of the definition of basic model with respect to 
flushometer valve water closets and urinals, as well as associated 
changes to certification reporting requirements for both of these 
products. These proposed rulemakings serve as the basis for this 
action.

DATES: The effective date of this rule is November 22, 2013.
    The incorporation of reference of certain publications listed in 
this rule was approved by the Director of the Federal Register on 
November 22, 2013.

ADDRESSES: The docket, which includes Federal Register notices, public 
meeting attendee lists and transcripts, comments, and other supporting 
documents/materials, is available for review at regulations.gov. All 
documents in the docket are listed in the 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: 
www1.eere.energy.gov/buildings/appliance_standards/residential/plumbing_products.html. This Web page will contain a link to the 
docket for this notice on the regulations.gov site. The regulations.gov 
Web page will contain simple instructions on how to access all 
documents, including public comments, in the docket.
    For further information on how to review the docket, contact Ms. 
Brenda Edwards at (202) 586-2945 or by email: 
Brenda.Edwards@ee.doe.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Lucas Adin, U.S. Department of Energy, Office of Energy Efficiency 
and Renewable Energy, Building Technologies Program, EE-2J, 1000 
Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 
287-1317. Email: Lucas.Adin@ee.doe.gov.
Ms. Jennifer Tiedeman, U.S. Department of Energy, Office of the General 
Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC, 20585-
0121. Telephone: (202) 287-6111. Email: Jennifer.Tiedeman@hq.doe.gov.

SUPPLEMENTARY INFORMATION: This final rule incorporates by reference 
the American Society of Mechanical Engineers (ASME) standard A112.18.1-
2012 \1\ test procedure for faucets and showerheads, ASME A112.19.2-
2008 test procedure for water closets and urinals,\2\ and American 
Society for Testing and Materials (ASTM) F2324-09 test procedure for 
prerinse spray valves. In addition, the final rule adds rounding 
instructions for certification reporting requirements for measures of 
water use for these products.
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    \1\ During the course of this rulemaking, ASME updated standard 
A112.18.1 from the 2011 version to the 2012 version. DOE has 
reviewed the sections incorporated by reference here and has 
determined that there are no changes that have an impact on this 
rulemaking, meaning that for DOE's purposes the 2011 and 2012 
versions of the standard are effectively identical. Unless otherwise 
noted, references to ASME A112.18.1 are to the 2012 version.
    \2\ Unless otherwise noted, references to ASME A112.19.2 are to 
the 2008 version.
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    This final rule incorporates by reference into part 430 the 
following industry standards:
    1. ASME A112.18.1-2012, (``ASME A112.18.1-2012''), Plumbing supply 
fittings,'' section 5.4, approved December 2012.
    2. ASME A112.19.2-2008, (``ASME A112.19.2-2008''), ``Ceramic 
plumbing fixtures,'' 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, approved 
August 2008, including Update No. 1, dated August 2009, and Update No. 
2, dated March 2011.
    Copies of ASME standards are available from the American Society of 
Mechanical Engineers, Two Park Avenue, New York, NY 10016-5990, 800-
843-2763 (U.S./Canada), 001-800-843-2763 (Mexico), 973-882-1170 
(outside North America), or www.asme.org.
    This final rule also incorporates by reference into part 431 the 
following industry standard:
    ASTM Standard F2324-03 (Reapproved 2009), (``ASTM F2324-03 
(2009)''), ``Standard Test Method for Prerinse Spray Valves,'' approved 
May 1, 2009.
    Copies of ASTM standards are available from the American Society of 
Testing and Materials International, 100 Barr Harbor Drive, P.O. Box 
C700, West Conshohoken, PA 19428-2959, 1-877-909-2786 (U.S. & Canada) 
and (610) 832-9585 (International), or www.astm.org.

Table of Contents

I. Authority and Background
II. Summary of the Final Rule
III. Discussion
    A. Showerheads and Faucets
    1. Definitions
    2. Test Procedure for Showerhead Flow Control Insert

[[Page 62971]]

    3. Showerhead Leakage
    4. Showerhead Test Pressure
    5. Use of Time-Volume Test Method
    6. Testing of Shower Tower Assemblies
    B. Water Closets and Urinals
    1. Dual-Flush Water Closets
    2. Static Test Pressure for Flushometer Valve Siphonic and 
Blowout Water Closets
    3. Water Closet and Urinal Sensor-Activated Flush Testing
    4. Test Procedure Amendments for Gravity Flush Tank Water Closet 
Trim Adjustments
    5. Annual Water Consumption Metric
    6. Trough Urinal Reporting Requirements
    C. Commercial Prerinse Spray Valves
    D. Incorporation by Reference of Standards
    1. ASME Standards
    2. Automatic Incorporation of Standards
    3. ASTM Standard
    E. Definition of Basic Model
    F. Statistical Sampling Plans
    G. Information To Be Provided in Certification Reports
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
V. Approval of the Office of the Secretary

I. Authority and Background

    Title III of the Energy Policy and Conservation Act of 1975 (42 
U.S.C. 6291, et seq.; ``EPCA'' or ``the Act'') sets forth a variety of 
provisions designed to improve energy efficiency. (All references to 
EPCA refer to the statute as amended through the American Energy 
Manufacturing Technical Corrections Act (AEMTCA), Public Law 112-210 
(Dec. 18, 2012).) Part B of Title III, which for editorial reasons was 
redesignated as Part A upon incorporation into the U.S. Code (42 U.S.C. 
6291-6309, as codified), establishes the ``Energy Conservation Program 
for Consumer Products Other Than Automobiles,'' which includes 
showerheads, faucets, water closets, urinals and prerinse spray valves, 
the subjects of this notice. (42 U.S.C. 6292(a)(15)-(18) and 42 U.S.C. 
6295(dd)) Because prerinse spray valves are generally viewed as 
commercial equipment, in a final rule published October 18, 2005, DOE 
placed the regulatory provisions for prerinse spray valves in Title 10 
of the Code of Federal Regulations (CFR), part 431, ``Energy Efficiency 
Program for Certain Commercial and Industrial Equipment.'' \1\ 70 FR 
60407, 60409.
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    \1\ Because of the placement of prerinse spray valves in Part B 
of Title III of EPCA, the provisions of Part B apply to the 
rulemaking for commercial prerinse spray valves. The location of the 
provisions within the CFR does not affect either their substance or 
applicable procedure; DOE is placing them in the commercial portion 
of the CFR part as a matter of administrative convenience based on 
their nature or type.
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    Under EPCA, the energy conservation program consists essentially of 
four parts: (1) Testing, (2) labeling, (3) Federal energy conservation 
standards, and (4) certification and enforcement procedures. 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 and water conservation 
standards adopted under EPCA, and (2) making representations about the 
efficiency of those products. Similarly, DOE must use these test 
procedures to determine whether the products comply with any relevant 
standards promulgated under EPCA.
    EPCA states that the procedures for testing and measuring the water 
use of faucets and showerheads shall be ASME/ANSI standard A112.18.1M-
1989, ``Plumbing Fixture Fittings,'' for faucets and showerheads, and 
ASME/ANSI standard A112.19.6-1990, ``Hydraulic Requirements for Water 
Closets and Urinals,'' for water closets and urinals; EPCA further 
specifies that if ASME/ANSI revises these requirements, the Secretary 
shall adopt such revisions if they conform to the basic statutory 
requirements for test procedures. (42 U.S.C. 6293(b)(7)-(8))
    EPCA states that the test procedure for measuring the flow rate for 
commercial prerinse spray valves ``shall be based on [the] American 
Society for Testing and Materials (ASTM) standard F2324, entitled 
`Standard Test Method for Pre-Rinse Spray Valves.' '' (U.S.C. 
6293(b)(14)) In a final rule published on December 8, 2006, DOE 
incorporated by reference the 2003 version of ASTM standard F2324 at 10 
CFR 431.263, and established it as the uniform test method for the 
measurement of flow rate of commercial prerinse spray valves at 10 CFR 
431.264. 71 FR 71340.
    DOE last amended test procedures for showerheads, faucets, water 
closets, and urinals in a final rule published in March 1998 (Mar. 1998 
final rule), which incorporated by reference ASME/ANSI standard 
A112.18.1M-1996, ``Plumbing Fixture Fittings,'' for showerheads and 
faucets, and ASME/ANSI standard A112.19.6-1995, ``Hydraulic Performance 
Requirements for Water Closets and Urinals,'' for water closets and 
urinals. 63 FR 13308 (March 18, 1998). Since publication of the March 
1998 final rule, ASME has revised both procedures and issued the most 
recent versions as A112.18.1-2012, ``Plumbing Supply Fittings,'' for 
showerheads and faucets in December 2012, and A112.19.2-2008, ``Ceramic 
Plumbing Fixtures,'' for water closets and urinals in August 2008.\2\
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    \2\ The term ``ANSI'' is no longer included in the title of the 
current versions of either standard. However, ASME, the organization 
that publishes these standards, is accredited by ANSI as a Standards 
Development Organization and the standards were approved by ANSI 
prior to publication.
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    DOE published the proposed amendments to the test procedures for 
showerheads, faucets, water closets, urinals, and prerinse spray valves 
in a test procedure NOPR in the Federal Register on May 30, 2012 (May 
2012 NOPR). The NOPR proposed generally to incorporate the revised 
versions of the ASME standards discussed in the previous paragraph, as 
well as an updated version of the test standard for commercial prerinse 
spray valves and certain revisions and additions to the definitions of 
covered plumbing products in 10 CFR 430.2. On July 24, 2012, DOE held a 
public meeting to discuss amendments proposed in the May 2012 NOPR and 
provided an opportunity for interested parties to comment. DOE also 
received written comments from interested parties regarding the 
proposed amendments to the test procedures.
    Upon review of the comments received in response to the May 2012 
NOPR, several issues emerged that required additional clarification or 
information before publishing a final rule. In response to those 
comments, a supplemental notice of proposed rulemaking (SNOPR) was 
published in the Federal Register on April 8, 2013 (April 2013 SNOPR). 
The issues addressed in the April 2013 SNOPR included revisions to the 
definitions of showerhead and hand-held showerhead; clarification of 
the requirements pertaining to testing of shower towers; a standardized 
test method to be used when verifying the mechanical retention of a 
showerhead flow control insert when subjected to 8 pounds force (lbf); 
clarification of permissible trim adjustments for tank-type water 
closets; and amendments to the required static test pressures to be 
used when testing

[[Page 62972]]

flushometer valve siphonic and blowout water closets. DOE also proposed 
further clarification of the definition of basic model with respect to 
flushometer valve water closets and urinals, as well as associated 
changes to certification reporting requirements for these products. DOE 
received written comments from interested parties regarding the amended 
proposals.
    On July 30, 2013, DOE held an additional public meeting to receive 
additional comments on DOE's proposed test to verify mechanical 
retention of a showerhead flow control insert when subjected to 8 lbf. 
DOE also accepted written comments for 10 days following the public 
meeting, with the comment period closing on August 9, 2013. 78 FR 42719 
(July 17, 2013). Because DOE has not yet been able to consider all 
comments raised at this meeting and during the additional comment 
period, DOE has not finalized this proposal and will address this issue 
in a separate notice.

General Test Procedure Rulemaking Process

    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 provides 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 (in the 
case of showerheads, faucets, water closets and urinals), or estimated 
annual operating cost of a covered product during a representative 
average use cycle or period of use and shall 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)) Finally, in any rulemaking to amend a test 
procedure, DOE must determine to what extent, if any, the proposed test 
procedure would alter the measured energy efficiency or energy use, or, 
in this case, water use, of any covered product as determined under the 
existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that 
the amended test procedure would alter the measured water use of a 
covered product, DOE must amend the applicable water conservation 
standard accordingly. (42 U.S.C. 6293(e)(2))
    Effective 180 days after an amended test procedure applicable to a 
covered product is prescribed, no manufacturer may make any 
representation with respect to water usage of such product unless such 
product has been tested in accordance with such amended test procedure 
and such representation fairly discloses the results of such testing. 
(42 U.S.C. 6293(c)(2)) However, the 180-day period may be extended for 
an additional 180 days if the Secretary determines that this 
requirement would impose an undue burden. (42 U.S.C. 6293(c)(3))

II. Summary of the Final Rule

    The final rule amends the current DOE test procedures for 
showerheads, faucets, water closets, urinals, and prerinse spray 
valves. DOE has concluded that these changes will not affect measured 
water use of these products. Instead, they will primarily clarify the 
manner in which to test for compliance with the current water 
conservation standards. As indicated in greater detail in the 
``Discussion'' section of this notice, these amendments apply to the 
current test procedures in 10 CFR part 430, appendices S and T to 
subpart B; to the definitions set forth in 10 CFR 430.2; and to 10 CFR 
part 431, subpart O. DOE is making these amendments to eliminate any 
potential ambiguity contained in these test procedures and clarify the 
regulatory text so that regulated entities fully understand the 
intended application and implementation of the test procedures. DOE 
also notes that this rule also fulfills its obligation to periodically 
review its test procedures under 42 U.S.C. 6293(b)(1)(A).

III. Discussion

    This section discusses the test procedures incorporated into this 
final rule. This section also presents the written and oral comments 
received in response to the May 2012 NOPR, the written and oral 
comments received in response to the April 2013 SNOPR, and DOE's 
responses to these comments. Responses to the comments address the 
following subject areas:

1. Showerheads and Faucets
2. Water Closets and Urinals
3. Commercial Prerinse Spray Valves
4. Incorporation by Reference of Standards
5. Basic Models
6. Statistical Sampling Plans
7. Information To Be Provided in Certification Reports

A. Showerheads and Faucets

1. Definitions
    To address certain provisions of the revised ASME A112.18.1 that 
were not contemplated in the versions referenced by the existing DOE 
test procedures, and to establish greater clarity with respect to 
product coverage, DOE proposed in the May 2012 NOPR to adopt new 
definitions for the terms ``accessory,'' ``body spray,'' ``hand-held 
shower,'' and ``fitting'' based on the definitions for these components 
in the most recent ASME standard. 77 FR 31747-48 (May 30, 2012)
    In the May 2012 NOPR, DOE proposed to define a showerhead as ``an 
accessory, or set of accessories, to a supply fitting distributed in 
commerce for attachment to a single supply fitting, for spraying water 
onto a bather, typically from the overhead position, including body 
sprays and hand-held showerheads, but excluding safety shower 
showerheads.'' 77 FR at 31755 (May 30, 2013). DOE proposed a 
modification to the definition of the term ``showerhead'' based on a 
definition included in ASME A112.18.1.\3\ With the proposed 
modification, DOE intended to reflect that safety shower showerheads 
are not covered products, while hand-held showerheads are covered. The 
proposed definition also clarified that DOE would consider a body spray 
to be a showerhead for the purposes of regulatory coverage.
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    \3\ 10 CFR 430.2 previously defined as showerhead as ``any 
showerhead (including a hand-held showerhead), except a safety 
shower showerhead.''
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    Kohler and Sloan Valve Company (Sloan Valve) recommended that, for 
consistency, DOE should use the showerhead definition found in ASME 
A112.18.1: ``An accessory to a supply fitting for spraying water onto a 
bather, typically from the overhead position.'' (Kohler, No. 9 at p. 4; 
Sloan Valve, No. 12 at p. 3) \4\
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    \4\ A notation in the form ``Kohler, No. 9 at p. 4'' identifies 
a written comment that DOE has received and included in the docket 
of this rulemaking. This particular notation refers to a comment: 
(1) Submitted by Kohler; (2) in document number 9 of the docket; and 
(3) on page 4 of that document.
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    The National Resources Defense Council (NRDC) commented that a 
showerhead should not be defined as an accessory. (NRDC, Public Meeting 
Transcript, No. 11 at pp. 54-55) \5\ Plumbing Manufacturers 
International (PMI), Moen Incorporated (Moen), and Kohler commented 
that body sprays are not considered accessories since they cannot be 
readily added or removed by the user, and thus should not be included 
in the showerhead definition.

[[Page 62973]]

(PMI, No. 8 at p. 4; Moen, No. 4 at p. 3; Kohler, No. 9 at p. 4) NRDC 
supported the incorporation of body sprays in the showerhead 
definition. (NRDC, Public Meeting Transcript, No. 11 at pp. 57-58) The 
International Code Council (ICC) recommended that the term 
``showerhead'' be incorporated into the definition of body spray to 
clearly indicate that a body spray is considered a form of showerhead. 
(ICC, Public Meeting Transcript, No. 11 at pp. 55-56)
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    \5\ A notation in the form ``NRDC, Public Meeting Transcript, 
No. 11 at pp. 54-55'' identifies a comment that DOE has received and 
included in the docket of this rulemaking. This particular notation 
refers to a comment: (1) Submitted by NRDC during the public 
meeting; (2) in the transcript of that public meeting, document 
number 11 in the docket of this rulemaking; and (3) appearing on 
pages 54 and 55 of the transcript.
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    Based on these comments, DOE withdrew the proposal to include body 
sprays in the April 2013 SNOPR, citing a need to further study the 
issue. 78 FR at 20834 (Apr. 8, 2013). DOE also stated in the April 2013 
SNOPR that the current ASME showerhead definition was not specific 
enough to address DOE's regulatory coverage of showerheads by not 
specifically including hand-held showerheads or excluding safety shower 
showerheads. 78 FR at 20834 (Apr. 8, 2013). DOE also proposed in the 
April 2013 SNOPR to remove the term ``accessory'' from the definition 
of showerhead in light of comments received. 78 FR at 20834 (Apr. 8, 
2013). The April 2013 SNOPR proposed the following definition for the 
term ``showerhead'': ``A component of a supply fitting, or set of 
components distributed in commerce for attachment to a single supply 
fitting, for spraying water onto a bather, typically from an overhead 
position, including hand-held showerheads, but excluding safety 
showerheads.'' 78 FR at 20841 (Apr. 8, 2013). DOE notes that the term 
used in EPCA is ``safety shower showerhead,'' and DOE intended for the 
term in the proposed definition to refer to the same type of product. 
Accordingly, the finalized definition of ``showerhead'' in this rule 
uses the term ``safety shower showerhead.''
    DOE received additional comments in response to the revised 
definition of showerhead proposed in the April 2013 SNOPR. Kohler 
reiterated its previous comment in support of adopting the definition 
of showerhead contained in ASME A112.18.1. (Kohler, No. 27 at p. 1) 
Comments were also received from PMI, NSF International (NSF), and the 
International Association of Plumbing and Mechanical Officials (IAPMO), 
Chicago Faucets, and Moen that supported use of the definition in ASME 
A112.18.1. (NSF, No. 22 at pp. 1-2; PMI, No. 23 at pp. 2-3; IAPMO, No. 
25 at p. 2; Chicago Faucets, No. 27 at p. 1; Moen, No. 30 at p. 1)
    Additionally, a number of comments were received regarding DOE's 
proposal to adopt a definition of ``showerhead'' that would not include 
the term ``body spray'' and, therefore, exclude body sprays from the 
current standard. NSF, PMI, IAPMO, Chicago Faucet, and Moen made 
comments in support of the adoption of the definition of showerhead 
currently contained in ASME A112.18.1 without edits, with all 
commenters, except Chicago Faucets, explicitly supporting the decision 
to exclude body sprays from the definition. (NSF, No. 22 at p. 2; PMI, 
No. 23 at pp. 2-3; IAPMO, No. 25 at p. 2; Chicago Faucets, No. 28 at p. 
1; Moen, No. 30 at p. 1) On the other hand, a joint written comment 
submitted by NRDC and the Appliance Standards Awareness Project (ASAP) 
expressed regret regarding the Department's proposal to remove body 
sprays from the definition of showerhead, and from regulatory coverage, 
and further stated that the proposal presented in the SNOPR was 
``muddled by the inconsistent and ambiguous use of the term `fitting.' 
'' (NRDC/ASAP, No. 26 at p. 1) Maximum Performance Testing (MaP) noted 
that removing the term ``body spray'' from the definition of showerhead 
is inconsistent with the general concept of a showerhead since both 
products serve the same basic purpose, and specifically supported 
coverage of body sprays as showerheads. (MaP, No. 29 at p. 1) Finally, 
the California Energy Commission (CEC) stated that DOE's exclusion of 
the term ``body spray'' from the showerhead definition ``created an 
exemption from the test procedure so broad that it encompasses 
showerheads as well.'' CEC went on to clarify that use of the term 
``typically'' (in the part of the proposed definition that provides 
that a showerhead sprays water ``typically from an overhead position'') 
is ambiguous and ``could lead to a discretionary judgment on what 
products can be considered not a showerhead'' because any showerhead 
that could be placed other than overhead or positioned at lower than 
usual height could be called a body spray. (CEC, No. 31 at pp. 3-4)
    Based on careful consideration of these comments, DOE is excluding 
the term ``accessory'' from the showerhead definition and revising the 
definition to accurately use the term ``supply fitting'' as it is 
defined in ASME A112.18.1. The following definition is being adopted in 
this final rule: ``A component or set of components distributed in 
commerce for attachment to a single supply fitting, for spraying water 
onto a bather, typically from an overhead position, including hand-held 
showerheads, but excluding safety shower showerheads.'' This final rule 
is not adopting a definition of body spray. Because the term 
``accessory'' is not used in the definition of showerhead, DOE is not 
adopting a definition for accessory.
    During the July 24, 2012 public meeting, PMI commented that it 
supported incorporating the definition of hand-held showerhead being 
developed by ASME: ``An accessory to a supply fitting, that can be 
hand-held or fixed in place for the purpose of spraying water onto a 
bather, and which is connected to a flexible hose.'' (PMI, Public 
Meeting Transcript, No. 11 at p. 54) Written comments from Moen, PMI, 
Kohler, and Sloan Valve also supported adoption of ASME's draft 
definition of hand-held showerhead. (Moen, No. 4 at p. 3; PMI, No. 8 at 
p. 4; Kohler, No. 9 at pp. 3-4; Sloan Valve, No. 12 at p. 3) In the 
April 2013 SNOPR, DOE proposed the following definition for ``hand-held 
showerhead'': ``A showerhead that can be hand-held or fixed in place 
for the purpose of spraying water onto a bather.'' 78 FR at 20841. This 
definition removed the phrase ``and which is connected to a flexible 
hose'' from the ASME hand-held showerhead definition because DOE 
believed the ASME definition might not encompass all hand-held 
showerhead configurations in the marketplace.
    Following publication of the SNOPR, DOE again received comments 
that expressed support for the adoption of the ASME draft definition of 
hand-held showerhead from NSF, PMI, IAPMO, Kohler and Moen. (NSF, No. 
22 at pp. 1-2; PMI, No. 23 at pp. 2-3; IAPMO, No. 25 at p. 2; Kohler, 
No. 27 at p. 1; Moen, No. 30 at pp. 1-2) In response to DOE's assertion 
that the ASME phrase ``and which is connected to a flexible hose'' is 
restrictive and may not cover all configurations, Moen commented that 
the ASME definition was developed by the ANSI consensus process and 
that Moen was ``unaware of any hand-held shower that is connected via 
some means other than a hose.'' (Moen, No. 30 at p. 1) No other 
comments were received in response to the proposed definition of hand-
held showerhead.
    DOE also has not identified any products that appear to be intended 
for use as a handheld showerhead that do not have a flexible hose, and 
notes that any product that otherwise meets the definition of a 
showerhead would be subject to the 2.5 gpm water consumption standard 
regardless of whether it has a flexible hose. Therefore, the definition 
for hand-held showerhead adopted in this final rule is: ``A showerhead 
that can be hand-held or fixed in place for the purpose of spraying 
water onto a bather and that is connected to a flexible hose.''

[[Page 62974]]

    Finally, in the April 2013 SNOPR, DOE noted that neither EPCA nor 
10 CFR 430.2 defines the term ``safety shower showerhead,'' which is a 
type of showerhead specifically excluded from coverage by EPCA. 42 
U.S.C. 6291(31)(D). DOE noted that lack of a definition could cause 
confusion as to which products qualify for exclusion from coverage. 78 
FR at 20835. DOE notes that the current Occupational Safety and Health 
Administration (OSHA) regulation addressing safety showers, which is 
located at 29 CFR 1910.151(c), does not define the term or specify 
required characteristics of a safety shower showerhead. However, 
certain State regulatory requirements that address safety showers use 
ANSI standard Z358.1, ``Emergency Eyewash and Shower Equipment,'' as a 
reference.\6\ This standard contains specific design and performance 
criteria that safety showers must meet, such as flow rate and 
accessibility. The ANSI standard defines an emergency shower as ``a 
device specifically designed and intended to deliver a flushing fluid 
in sufficient volume to cause that fluid to cascade over the entire 
body.'' DOE requested comments on whether a definition of safety shower 
showerhead is needed and, if so, whether it is appropriate to define a 
safety shower showerhead as ``a showerhead that is designed to meet the 
requirements of ANSI standard Z358.1.'' DOE received comments on the 
incorporation of a definition of safety shower showerhead consistent 
with the requirements of ANSI standard Z358.1 from NSF and PMI, which 
expressed support for inclusion of a definition of safety shower 
showerhead. (NSF, No. 22 at p. 2; PMI, No. 23 at p. 3) Kohler indicated 
it had no comments on adding a definition for safety shower showerhead. 
(Kohler, No. 27 at p. 1)
---------------------------------------------------------------------------

    \6\ For example, see Title 8 of the California Code of 
Regulations, Section 5162, ``Emergency Eyewash and Shower 
Equipment.''
---------------------------------------------------------------------------

    After considering the comments received on the NOPR in regard to 
this proposal, and reviewing potential definitions for ``safety shower 
showerhead,'' DOE was unable to identify a definition that would 
clearly distinguish these products from the showerheads covered under 
EPCA. Because of the additional confusion that may be caused by 
adoption of an unclear definition, DOE is declining to adopt a 
definition for the term ``safety shower showerhead'' in this final 
rule. DOE may consider adopting a definition for this term in a future 
rulemaking.
2. Test Procedure for Showerhead Flow Control Insert
    In addition to setting forth water conservation standards for 
showerheads, EPCA also provides that showerheads must comply with the 
design requirement of section 7.4.3(a) of ASME/ANSI standard 
A112.18.1M-1989 (42 U.S.C. 6295(j)(1)), which requires that if a flow 
control insert is used as a component of a showerhead, the showerhead 
must be manufactured such that a pushing or pulling force of 8 lbf or 
more is required to remove the insert.
    The current text of 10 CFR 430.32(p) requires that all showerheads 
manufactured after January 1, 1994, meet the requirements of ASME/ANSI 
Standard A112.18.1M-1996, 7.4.4(a) (the updated version of the ASME/
ANSI provision referenced by EPCA, section 7.4.3(a) of ASME/ANSI 
A112.18.1M-1989). As part of this final rule, DOE is incorporating this 
requirement directly into the text of 10 CFR 430.32(p) in place of a 
reference to the section 4.11.1 of ASME A112.18.1-2012, which is the 
updated version of the same provision in section 7.4.4(a) of ASME/ANSI 
A112.18.1M-1996. However, DOE has not established a test method to 
determine whether showerheads meet the flow control insert retention 
design requirement. In the May 2012 NOPR, DOE did not propose changes 
to the showerhead design requirement but noted that no version of ASME 
A112.18.1 provides a specific test procedure for verifying that a flow 
control insert remains mechanically retained when subjected to 8 lbf. 
DOE requested comments and information on prospective methods of 
verifying that the design requirement applicable to the flow restrictor 
has been met, as well as comments and information on showerhead designs 
that may complicate verification of the 8 lbf requirement or make 
verification of the design requirement unnecessary. 77 FR at 31747 (May 
30, 2012).
    Based on the comments received in response to the May 2012 NOPR and 
subsequent research, DOE proposed in the April 2013 SNOPR a test method 
for validating that a given showerhead meets the flow control insert 
design requirement. DOE received a number of comments in response to 
the SNOPR expressing concerns about DOE's proposed test method. (NSF, 
No. 22 at p. 2, PMI, No. 23 at p. 3, Kohler, No. 27 at p. 2, Chicago 
Faucet, No. 28 at p. 2, and Moen, No. 30 at p. 2) On July 30, 2013, DOE 
held a public meeting to explain the proposal in greater detail and to 
gather additional comments and information about the concerns of 
stakeholders and the practices currently used by manufacturers to 
verify compliance with the retention requirement. Because of the 
comments received during the NOPR and SNOPR comment periods and at the 
subsequent public meeting, DOE believes further investigation of this 
issue is necessary to understand clearly any prospective impacts of the 
proposed test procedure prior to finalizing a test method. Therefore, 
DOE has decided to address this proposal as part of a subsequent 
notice.
3. Showerhead Leakage
    During the July 2012 public meeting, NRDC commented that the 
showerhead test procedure should clearly state that ball joint leakage 
from showerheads should be accounted for either by separately measuring 
and adding leakage to the flow rate determined per section 5.4 of ASME 
A112.18.1-2011 (since incorporated into the same section of ASME 
A112.18.1-2012), or by capturing leakage during the flow rate test 
itself. (NRDC, Public Meeting Transcript, No. 11 at p. 23) Joint 
written comments submitted by NRDC and ASAP echoed this comment. (NRDC/
ASAP, No. 14 at pp. 1-2) DOE recognizes that there can be leakage in 
plumbing systems and agrees that leakage from a ball joint integral to 
a showerhead should be captured in the overall; flow rate
    In addition, DOE believes that proposed amendments to the DOE test 
procedure, which reference ASME A112.18.1, adequately capture ball 
joint leakage. ASME A112.18.1 has two optional discharge capacity test 
schematics allowed for testing flow rate: (1) A metered test set up 
that measures the flow rate through the specimen, as provided in 
section 5.4.2.2(c) or; (2) a time-volume test set up, which collects 
showerhead flow in a receiving container over a given period of time to 
calculate flow rate, as provided in section 5.4.2.2(d). The metered 
test set up measures all of the flow through the specimen and therefore 
will capture ball joint leakage. The time-volume test set up will 
account for ball joint leakage as long as the container is placed in 
such a way as to capture all of the flow from the showerhead. Also, DOE 
notes that ASME A112.18.1, section 5.3.5, sets a maximum leakage rate 
of 0.01 gallons per minute (gpm) from showerhead ball joints. While DOE 
does not require compliance with this provision, it serves as an 
indication that the amount of leakage expected for products that comply 
with current industry standards is relatively small. Based on this

[[Page 62975]]

information, DOE will not require a separate test procedure to measure 
ball joint leakage, but considers ball joint leakage a part of the 
total flow rate of a showerhead and has included an instruction in the 
showerhead test procedure in Appendix S that if the time/volume method 
is used, the container must be positioned as to collect all water 
flowing from the showerhead, including any leakage from the ball joint.
4. Showerhead Test Pressure
    At the July 24, 2012 public meeting, NRDC stated that the 
requirement in ASME A112.18.1-2011 that showerheads be tested at 80 
pounds per square inch (psi) is not representative of pressures 
experienced in an installation and, in fact, is excessive. (NRDC, 
Public Meeting Transcript, No. 11 at pp. 22-23) ICC agreed with NRDC 
that the 80 psi test pressure is excessive and urged DOE to ``correct 
this obviously excessive number.'' (ICC, Public Meeting Transcript, No. 
11 at pp. 24-25) Although ICC presented anecdotal data at the public 
meeting, no one provided technical information to DOE as part of the 
written comments regarding pressures experienced in actual showerhead 
installations. Additionally, in the public meeting ICC stated that the 
pressure experienced by a showerhead ``depends on the supply pressure 
and that varies significantly as you move across the country, and 
depends significantly on the shower valve and the plumbing system.'' 
(ICC, Public Meeting Transcript, No. 11 at p. 26)
    Currently DOE does not have sufficient data to provide a basis for 
revising the showerhead test pressure specified in ASME A112.18.1. 
Therefore, this final rule does not amend the test pressure for 
showerheads, but retains the 80 psi requirement present in ASME 
A112.18.1.
5. Use of Time-Volume Test Method
    During the public meeting, NRDC questioned the efficacy of the 
time-volume test method for showerheads in ASME A112.18.1 and indicated 
that this test method may increase the amount of error in measured flow 
rates compared with tests using a flow meter, particularly due to 
leakage in the fixture and water splashing out of the receiving vessel 
during testing. (NRDC, Public Meeting Transcript, No. 11 at pp. 22-24) 
In their joint written comments, NRDC and ASAP stated that Figure 3 in 
the ASME A112-18.1 test procedure has shortcomings, including the 
following: (1) It cannot ensure that water will not splatter out of the 
container during the test; (2) it lacks instructions for measuring the 
volume of water collected; (3) it does not specify the incremental 
resolution of the receiving vessel; (4) it does not provide specifics 
for timing the test; (5) it does not state how many times the test must 
be repeated; and (6) it does not provide a method for weighting or 
averaging the results of multiple tests. NRDC and ASAP concluded that 
the time-volume test method set forth in ASME A112.18.1 ``is not 
specified in sufficient detail to ensure accurate and repeatable 
results, and should not be part of the federal test method.'' (NRDC/
ASAP, No. 14 at p. 2) DOE understands the concerns of NRDC and ASAP 
regarding these issues. However, DOE's review of the updated test 
procedure for showerheads provided no evidence that the time-volume 
test method in ASME A112.18.1 does not meet the statutory requirement 
for DOE to prescribe test procedures that are reasonably designed to 
produce test results that measure water use during a representative 
average use cycle or period of use. (42 U.S.C. 6293(b)(3)) Thus, this 
final rule retains the option to use the time-volume test method as 
specified in ASME A112.18.1.
6. Testing of Shower Tower Assemblies
    In the April 2013 SNOPR, DOE sought to clarify how the requirements 
of the DOE test procedure apply to shower tower (also known as ``shower 
panel'') assemblies. DOE provided context by explaining that ``the term 
shower tower is typically used in reference to single supply fittings 
that are designed for attachment to one or more hot and cold water 
connections in a shower or bath and that are composed of at least one 
showerhead and one or more body sprays, but that may also include a 
hand-held showerhead and either a valve for selecting spraying 
components, a thermostatic mixing valve, or both.'' 78 FR at 20835 
(Apr. 8, 2013). Because DOE had proposed in the SNOPR a definition of 
the term ``showerhead'' that did not include body sprays, DOE also 
proposed in the SNOPR requiring parties to turn off the body spray 
component(s) of shower towers during testing of the integral 
showerhead. 78 FR 20835 (Apr. 8, 2013).
    NRDC and ASAP and MaP submitted comments disagreeing with DOE's 
proposal to require that body sprays be turned off when testing a 
shower tower. NRDC and ASAP stated that the ``approach will yield test 
results that are not indicative of the water consumption in actual 
practice . . .'' (NRDC/ASAP, No. 26 at p. 2) MaP stated that ``there is 
no reason to `turn off' a portion of a water using system simply 
because it is not considered to be included within the strict 
definition of a showerhead.'' (MaP, No. 29 at p. 2) Conversely, Kohler 
and Moen agreed with DOE's proposal to turn off body spray components 
of shower towers for testing. (Kohler, No. 27 at p. 1; Moen, No. 30 at 
p. 2)
    Based on the comments received and further research into shower 
towers/shower panels, DOE concluded that these products contain 
components that are currently subject to water conservation standards, 
namely showerheads and hand-held showerheads. Therefore, in the final 
rule DOE requires that when testing shower towers/shower panels, the 
showerhead portion that is subject to standards must be tested in 
accordance with the DOE test procedure. When testing a covered product 
for maximum flow in accordance with Appendix S, which incorporates by 
reference ASME A112.18.1 section 5.4, the full flow shall be diverted 
to the covered component being tested. Where it is not possible to 
isolate the portion of the shower tower subject to the water 
consumption standard, all components shall be flowing at the maximum 
rate and the showerhead measured separately.

B. Water Closets and Urinals

1. Dual-Flush Water Closets
    In the May 2012 NOPR, DOE proposed a test method to account for the 
reduced average water use of dual-flush water closets, which are 
capable of being flushed in either a full-volume flush mode (full 
flush) or in a reduced-volume mode (reduced flush). Under the proposed 
test procedure, the flush volume of the reduced flush would be measured 
using section 7.4 of ASME A112.19.2 in the same manner as the full 
flush, and the average representative water use would be calculated 
using the composite average of two reduced flushes and one full flush. 
77 FR at 31746 (May 30, 2012). This proposed method was based upon the 
test method used by the Environmental Protection Agency (EPA) 
WaterSense program \7\ for measuring the flush volume of dual-flush 
water closets and used a weighted average of the full and reduced flush 
volumes.
    However, since the Federal water consumption standard is based upon 
the

[[Page 62976]]

maximum water use, DOE did not propose to make this test method the 
required means for testing dual-flush water closets for the purposes of 
certification in accordance with 10 CFR part 429. Rather, the intent in 
including this test method was to provide manufacturers with a 
potential means to evaluate the representative water use of these 
products under conditions of expected consumer use for the purposes of 
labeling and other representations. For products that do not have dual-
flush capability, the method required for certification would remain 
the standard full-flush volume test procedure.
---------------------------------------------------------------------------

    \7\ WaterSense is a voluntary partnership program administered 
by the EPA that, among other activities, promotes water conservation 
by providing certification and labeling for water consuming 
products, including water closets, that meet certain water 
conservation standards. Further information is available at 
www.epa.gov/WaterSense/index.html.
---------------------------------------------------------------------------

    In response to the NOPR, DOE received several comments that opposed 
incorporation of the proposed test method for dual-flush products. The 
Alliance for Water Efficiency (AWE), Kohler, Moen, and Sloan Valve 
commented that because of DOE's statutory authority, which addresses 
only the maximum water use of water closets, dual-flush water closets 
should only be tested in full-flush mode in accordance with ASME 
A112.19.2. (AWE, No. 13 at p. 2; Kohler, No. 9 at pp. 2-3; Moen, No. 4, 
p. 2; Sloan Valve, No. 12, p. 2). Also, AWE, ICC, Kohler, MaP, Moen, 
NRDC and ASAP, and Sloan Valve stated that the weighted-average 
approach was unproven and that the particular ratio required further 
evaluation to confirm its representativeness. (AWE, No. 13 at p. 2; 
ICC, Public Meeting Transcript No. 11 at pp. 36-37; Kohler, No. 9 at 
pp. 2- 3; MaP, No. 10 at pp. 3-4; Moen, No. 4 p. 2; NRDC/ASAP, No. 14 
at pp. 3-4; Sloan Valve, Public Meeting Transcript, No. 11 at pp. 38-
39) In addition, Kohler, Moen, and Sloan Valve stated that confusion in 
the marketplace might result if DOE were to issue a method different 
from the WaterSense method to determine the representative average 
flush volume for dual-flush water closets. (Kohler, No. 9 at pp. 2-3; 
Moen, No. 4 at p. 2; Sloan Valve, No. 12 at p. 2)
    As a result of these comments, DOE proposed in the April 2013 SNOPR 
to not include a dual-flush test method in appendix T to subpart B of 
10 CFR part 430, and instead to indicate specifically in Sec.  429.30 
of 10 CFR part 429 that the flush volume to be reported to DOE in 
certifications of compliance for water closets is the full-flush 
volume. The California Investor Owned Utilities (CA IOUs) subsequently 
submitted multiple comments that revolved around the issue of adopting 
test procedures to accurately estimate flush volume of dual-flush water 
closets. Specifically, the CA IOUs commented that: (1) DOE should 
establish an appropriate ratio of full-volume to reduced-volume flushes 
that is to be used in determining a representative flush volume for 
dual-flush water closets; (2) there is evidence that a 2:1 ratio is too 
high and is variable, depending on the application; (3) DOE should 
conduct research to determine the appropriate ratio; (4) a nationally 
established representative flush volume would resolve conflicts between 
different test procedures adopted by states and lessen the burden on 
manufacturers; (5) the definition of a water closet needs to be 
modified to incorporate the ratio of reduced- to full-volume flushes; 
(6) if DOE intends to establish a standard based on effective flush 
volume, DOE should use this rulemaking to develop a test procedure; and 
(7) manufacturers should be required to certify dual-flush water 
closets for both flush rates. (CA IOUs, No. 24 at pp. 2-3) NRDC and 
ASAP stated that they believe DOE should establish a procedure for 
representative average flush rate for dual-flush water closets, but 
recommended that this be done in another rulemaking. (NRDC/ASAP, No. 26 
at p. 3)
    In contrast with these comments, Chicago Faucets submitted a 
comment that stated, ``We believe that the DOE mandate is to enforce 
the maximum flush volume of 1.6 gallons per flush (gpf).
    The best method to achieve this is to maintain the references to 
the test protocols of the ANSI accredited standard ASME A112.19.2/CSA 
B45.1. There is no justification for DOE to create a new standard.'' 
Chicago Faucets added that it believes a 2:1 ratio of reduced- to full-
volume flush is conservative, and that 3:1 or 4:1 is likely more 
representative of actual water use in dual-flush water closets. 
(Chicago Faucets, No. 28 at p. 2)
    For clarification, DOE did not intend to establish through its 
proposal a separate standard for dual-flush products or to require 
separate certification requirements for these products, and emphasizes 
that manufacturers of any type of covered water closet are only 
required to certify maximum water use (see 10 CFR 429.30(b)(2)). DOE 
also notes that the manufacturer would not have been required under the 
NOPR proposal to test dual-flush toilets in both the full-flush modes 
and the reduced-flush modes if the manufacturer did not intend to make 
representations regarding average water use of dual-flush water 
closets.
    However, based on the comments submitted, DOE has determined that 
it does not have sufficient evidence on which to base a test procedure 
for average representative water use for dual-flush water closets. 
Therefore, DOE is not adopting a test procedure to calculate average 
representative water use for dual-flush water closets.
    Regardless, DOE emphasizes that because DOE is not adopting a test 
procedure to calculate average representative water use for dual-flush 
water closets, manufacturers, distributors, retailers, and private 
labelers are not permitted to make any representations of water use 
(e.g., average representative water use reflecting an average of the 
full and reduced flush modes) for dual-flush water closets other than 
the maximum flush volume. Under 42 U.S.C. 6293(c)(1) and (2), none of 
these regulated parties may make any representation with respect to the 
water use of a water closet unless that representation is based on 
testing conducted in accordance with the relevant DOE test procedure. 
In this case, because DOE is not adopting a test procedure to calculate 
average representative water use, parties may not state, in writing or 
in any broadcast advertisement, a specific value for the average 
representative water use of a dual-flush water closet. Reported flush 
volumes may only represent the flush volume of the full-flush mode in 
accordance with the DOE test procedure. Parties may state that a dual-
flush water closet complies with the requirements of EPA's WaterSense 
program, either in writing or through use of the appropriate WaterSense 
label, as long as such representations are made in accordance with EPA 
specifications and such representations do not include a specific value 
of average representative water use.
    During the July 24, 2012 NOPR public meeting, ASAP inquired whether 
WaterSense would be required to use the same test procedure proposed by 
DOE in the NOPR for representative average water use for dual-flush 
water closets. (ASAP, Public Meeting Transcript, No. 11 at p. 33) This 
rule is not adding a test procedure for representative average water 
use of dual flush water closets and therefore will have no effect on 
the WaterSense specification. In addition, since WaterSense is a 
voluntary program, the specifications for labeling WaterSense products 
may include additional requirements that are beyond the requirements of 
the DOE test procedure as long as the DOE test procedure is the basis 
for measuring water consumption.
    At the July 24, 2012 NOPR public meeting, ICC inquired whether 
dual-flush devices intended to retrofit single flush flushometer-style 
water closets are

[[Page 62977]]

required to meet the appropriate flush volume standards. (ICC, Public 
Meeting Transcript, No. 11 at p. 38) (See 10 CFR 430.32(q).) Retrofit 
devices are not covered products because they do not meet the 
definition of a water closet in 10 CFR 430.2 and therefore are not 
required to be tested under the DOE test procedures for maximum flush 
volume.
2. Static Test Pressure for Flushometer Valve Siphonic and Blowout 
Water Closets
    In written comments submitted to DOE following publication of the 
May 2012 NOPR, NRDC and ASAP recommended that DOE evaluate the effect 
of averaging test results that have been obtained at different test 
pressures of siphonic flushometer style water closets, which is the 
general method used in both ASME/ANSI A112.19.6-1995 referenced in the 
DOE test procedure for water closets and in the newer ASME A112.19.2-
2008. (NRDC/ASAP, No. 14 at p. 2) NRDC and ASAP further suggested that 
DOE should require reporting of the higher water consumption value 
obtained by (1) averaging three tests at 80 psi and (2) averaging three 
tests at 35 psi for siphonic flushometer water closets and, at a 
minimum, should discard the 2:1 ratio of test results at the lower 
pressure. (NRDC/ASAP, No. 14 at p. 2) Although not specifically 
mentioned by NRDC and ASAP in their comments, DOE also proposed in the 
May 2012 NOPR to require an additional low pressure test at 45 psi for 
blowout flushometer water closets that would result in a 2:1 ratio of 
results. 77 FR at 31745.
    In the April 2013 SNOPR, DOE agreed that the use of a 2:1 ratio for 
averaging water consumption of flushometer siphonic and blowout water 
closets at the pressures currently indicated in Table 5 of ASME 
A112.19.2-2008 could lead to results that are not representative across 
a range of pressures. For this reason, DOE proposed that the test 
pressures for flushometer valve water closets with a siphonic bowl be 
80 psi and 35 psi. For flushometer valve water closets with a blowout 
bowl, DOE proposed that the test pressures be 80 psi and 45 psi. 
According to this proposal, the test shall be run three times at each 
pressure as specified in section 7.4.3, ``Procedure,'' of ASME 
A112.19.2-2008. 78 FR at 20842.
    In comments on the April 2013 SNOPR, NSF, PMI, IAPMO, Kohler, and 
Chicago Faucet stated that the requirements in Table 5 of ASME 
A112.19.2-2008 were published incorrectly. (NSF, No. 22 at p. 3; PMI, 
No. 23 at pp. 5-6; IAPMO, No. 25 at p. 2; Kohler, No. 27 at pp. 2-3; 
Chicago Faucet, No. 28 at p. 2) The commenters stated that the ASME 
A112 committee has addressed the error and in 2013 will publish a 
revision to the standard mirroring DOE's April 2013 SNOPR proposal.\8\
---------------------------------------------------------------------------

    \8\ At the time of this final rule, ASME A112.19.2-2013 had just 
been published. Because DOE did not have sufficient time in which to 
review the revised version, DOE was unable to incorporate the 
revised version by reference in this rule. DOE will consider 
adoption of the 2013 version of A112.19.2 in a future rulemaking.
---------------------------------------------------------------------------

    NRDC and ASAP re-stated their recommendation that, in order to 
ensure that test reporting does not obscure efficiency actually 
experienced by building owners, DOE ``should require reporting of the 
higher water consumption value obtained by the average of three tests 
at 80 psi and the average of three tests at 35 psi. At a minimum, these 
values should be reported separately even if averaging is permitted to 
demonstrate compliance.'' (NRDC/ASAP, No. 26 at p. 3)
    Based on the comments received in response to the SNOPR, DOE, in 
this final rule, adopts the requirement that water consumption tests be 
conducted at two static pressures, with three tests at each pressure 
(i.e., six total tests, rather than nine). For flushometer valve water 
closets with a siphonic bowl, DOE requires that the test pressures be 
80 psi and 35 psi. For flushometer valve water closets with a blowout 
bowl, DOE requires that the test pressures be 80 psi and 45 psi. 
According to this amendment, the water consumption test shall be run 
three times at each pressure as specified in section 7.4.3, 
``Procedure,'' of ASME A112.19.2-2008. The recorded flush volume for 
each tested unit shall be the average of the total flush volumes 
obtained over the range of pressures specified above.
3. Water Closet and Urinal Sensor-Activated Flush Testing
    NRDC and ASAP commented that water closet and urinal flush valves 
that are activated automatically by a sensor are not adequately tested 
under the ASME test procedures. NRDC and ASAP claimed that these types 
of sensor-activated flush valves can cause ``phantom flushing'' (i.e., 
unintended flushing by the sensored-valve) and lead to excessive water 
use. NRDC and ASAP requested that DOE develop test procedures to 
address this issue. (NRDC/ASAP, No. 14 at p. 3) While DOE understands 
that such phantom flushing may be a concern, the DOE water consumption 
standards for water closets and urinals, found at 10 CFR sections 
430.32(q) and 430.32(r), respectively, are measured in gallons per 
flush and do not include annual water consumption. While phantom 
flushes affect the annual water consumption of these products, they do 
not affect the water use of a single flush. The test procedures for 
flush valves for water closets and urinals are only intended to measure 
the flush volume of a single flush. The purpose of this rulemaking is 
to update the DOE test procedures. Introduction of a new test procedure 
for sensor-activated flush valves is outside of the scope of this 
rulemaking.
4. Test Procedure Amendments for Gravity Flush Tank Water Closet Trim 
Adjustments
    In written comments submitted to DOE and in oral comments made 
during the July 24, 2012 NOPR public meeting, NRDC and ASAP urged DOE 
to consider requiring manufacturers to adjust the tank trim components 
to the maximum flush volume setting during testing. (NRDC, Public 
Meeting Transcript, No. 11 at pp. 70-71; NRDC/ASAP, No. 14 at p. 3) The 
term ``tank trim'' refers to the components in the tank that can be 
adjusted by the consumer such as the water level, fill valve timing, 
and related components. While DOE's current test procedure does not 
address this issue, ASME A112.19.2-2008, section 7.1.2, specifies that 
for gravity flush tank water closets, the water level in the tank and 
fill time shall be adjusted in accordance with the manufacturer's 
instructions and specifications at each test pressure. Table 5 in ASME 
A112.19.2-2008 specifies that ``[a]djustments to tank trim components 
shall be permitted only when changes to test pressures are indicated'' 
and that ``[n]o adjustments shall be allowed between tests employing 
like pressures.'' These provisions ensure that once the trim is set to 
the manufacturer's specifications, the water level and fill time 
adjustments remain the same for tests that use like pressures, which 
simulates how water closets are used in real-world application.
    After receiving comments from NRDC and ASAP, DOE investigated water 
closet manufacturers' instructions on gravity flush tank trim 
adjustments. Based upon a review of installation instructions for 
representative models from eight separate manufacturers, which 
represent a significant sampling of major manufacturers of tank-type 
water closets currently on the market, DOE believes it to be likely 
that the majority of manufacturers' installation instruction manuals 
for gravity flush tank water closets specify the tank water

[[Page 62978]]

level and also provide directions on adjusting the tank's water level. 
However, DOE found that few manufacturers provide information on the 
recommended adjustment of other trim components, such as the flapper 
valve or fill valve. Section 7.1.2 of ASME A112.19.2-2008 only 
specifies adjustments made to the tank water level and fill time and 
does not specify adjustments made to other trim components such as the 
flapper valve. Taking into account the variety of water closet designs 
on the market, it is unclear whether the impact on flush volume of trim 
adjustments that are not specified in manufacturer's instructions or in 
ASME A112.19.2-2008 is significant.
    Based on these findings, in the April 2013 SNOPR, DOE proposed to 
amend the test procedures for gravity flush tank toilets to require 
that, at each test pressure specified in Table 5 of ASME A112.19.2-
2008, trim components of gravity flush tank water closets 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, be set 
in accordance with the printed installation instructions supplied by 
the manufacturer. For products with instructions that do not specify 
trim setting adjustments, DOE proposed to require that these trim 
components be adjusted to the maximum water use setting so that the 
maximum flush volume is produced without causing the water closet to 
malfunction or leak. In this context, DOE interprets ``malfunction or 
leak'' to mean that the product is otherwise unable to meet the 
requirements of the ASME A112.19.2 standard for basic functionality. In 
addition, the water level in the tank would be set to the maximum level 
indicated in the printed installation instructions supplied by the 
manufacturer or the water line indicated on the tank itself, whichever 
is higher. DOE also proposed to require that if the product's 
installation instructions or the water closet tank do not indicate a 
water level, the water level must be adjusted to 1  0.1 
inches below the top of the overflow tube or 1  0.1 inches 
below the top rim of the water-containing vessel (for gravity flush 
tank water closets that do not contain an overflow tube) for each 
designated pressure specified in Table 5 of ASME A112.19.2-2008.
    In response to this proposal in the SNOPR, American Standard, NSF, 
PMI, and Chicago Faucets submitted comments stating that trim 
adjustments to gravity tank water closets are already covered in ASME 
A112.19.2-2008, and that there is no need to deviate from this national 
standard. These comments also stated that any adoption of changes to 
trim adjustments should be managed by ASME through a consensus process. 
(American Standard, No. 21 at p. 1; NSF, No. 22 at p. 3; PMI, No. 23 at 
p. 5; Chicago Faucets, No. 28 at p. 2) American Standard argued that 
consumers would be less satisfied with the proposed adjustments because 
of the reduced water pressure brought about by a lower water level. 
(American Standard, No. 21 at p. 1)
    Chicago Faucets specifically commented that proposed trim 
adjustments will not reduce water consumption in water closets and 
``adjusting the time of the fill valve in a wash down gravity flush 
water closet does not affect the flush volume . . . . If the valves are 
not adjustable then the instructions are not relevant.'' (Chicago 
Faucets, No. 28 at p. 2)
    Comments received from Kohler and IAPMO agreed with DOE's proposed 
gravity tank water closet trim adjustments and states that a majority 
of manufacturers provide adequate instructions pertaining to proper 
tank component settings at the intended flush volumes. (Kohler, No. 27 
at pp. 2-3; IAPMO, No. 25 at p. 2)
    Based on comments received and research conducted, DOE has 
concluded the specifications in ASME A112.19.2-2008 may not be adequate 
to ensure that manufacturers test gravity tank water closets at the 
maximum flush volume. DOE does not believe that trim adjustments will 
cause consumers to be less satisfied with the water closet performance. 
The water closet design should provide a proper flush performance that 
does not exceed the maximum flush volume, and the tank water level and 
other component settings (such as the flapper valve) should be adequate 
in meeting this requirement. Therefore, in this final rule, DOE is 
establishing a requirement that at each test pressure specified in 
Table 5 of ASME A112.19.2-2008, trim components of gravity flush tank 
water closets that can be adjusted to cause an increase in flush 
volume, including (but not limited to) the flapper valve, fill valve, 
and water tank level, shall be set in accordance with the printed 
installation instructions supplied by the manufacturer. For products 
with instructions that do not specify trim setting adjustments, trim 
components shall be adjusted to the maximum water use setting so that 
the maximum flush volume is produced without causing the water closet 
to malfunction or leak. In this context, DOE interprets ``malfunction 
or leak'' to mean that the product is otherwise unable to meet the 
requirements of the ASME A112.19.2-2008 standard for basic 
functionality. In addition, the water level in the tank shall be set to 
the maximum level indicated in the printed installation instructions 
supplied by the manufacturer or the water line indicated on the tank 
itself, whichever is higher. If the product's installation instructions 
or the water closet tank do not indicate a water level, the water level 
shall be adjusted to 1  0.1 inches below the top of the 
overflow tube or 1  0.1 inches below the top rim of the 
water-containing vessel (for gravity flush tank water closets that do 
not contain an overflow tube) for each designated pressure specified in 
Table 5 of ASME A112.19.2-2008.
    MaP, NRDC and ASAP, and PMI recommended that DOE follow the 
WaterSense specification for gravity tank water closet trim adjustments 
and stated that the WaterSense specification is a validated procedure 
that has been used on thousands of products. (MaP, No. 29 at p. 2; 
NRDC/ASAP, No. 26 at pp. 2-3; PMI, No. 23 at p. 5) Specifically, NRDC 
and ASAP stated, ``field adjustability is a significant cause of 
excessive water consumption by nominally compliant tank-type water 
closets at the point of use and the US EPA WaterSense specification for 
tank-type toilets incorporates specific language on field 
adjustability, and limits the effects of adjustability to 0.4 gallons 
per flush in additional consumption.'' NRDC and ASAP went on to state, 
``Although the specific allowance of 0.4 gpf used by WaterSense should 
be examined further by DOE before incorporation into the federal test 
procedure, the frame developed by WaterSense is one that the Department 
should consider in this rule-making.'' (NRDC/ASAP, No. 26 at pp. 2-3)
    After consideration of these comments, DOE will not adopt the 
WaterSense specifications for gravity tank water closet trim 
adjustments. The WaterSense specification provides a special allowance 
to address field adjustments to trim settings, which are outside the 
scope of the water consumption test required by DOE and which may add 
confusion to compliance with Federal requirements if added to the 
regulations. Specifically, the WaterSense specification permits the 
maximum volume of water that can be discharged by the water closet when 
field adjustment of the tank trim is set at the maximum use setting to 
be as high as the following values: 1.68 gpf for single-flush water 
closets and 2.00 gpf for dual-flush water closets in the full-flush 
mode. (See EPA WaterSense

[[Page 62979]]

Specification for Tank-Type Toilets version 1.1, section 5.2, available 
at http://www.epa.gov/WaterSense/docs/revised_het_specification_v1.1_050611_final508.pdf, or DOE Docket Number EERE-2011-BT-TP-0061, 
No. 1, p. 3) DOE views the water level and trim settings identified by 
the manufacturer through the printed instructions supplied with the 
water closet and marked on the tank as the settings for expected 
consumer use, and would require use of the maximum settings only in 
cases where the manufacturer has provided no instructions or markings 
regarding these settings. Because the allowances in the WaterSense 
specification address water consumption under conditions outside of 
those which DOE has previously determined to be representative of 
expected consumer use, DOE declines to adopt these specifications. DOE 
notes that any basic model that, under the DOE test procedure, must be 
tested using the maximum trim setting must meet the applicable Federal 
standard when tested using that maximum trim setting.
5. Annual Water Consumption Metric
    During the July 24, 2012 NOPR public meeting and in written 
comments, NRDC and ASAP proposed that DOE consider the use of an annual 
water consumption metric and associated test procedure for water 
closets, reasoning that ``if all new water closets were required to 
certify an annual consumption rate that incorporated a reasonable 
limitation on losses due to leakage, the federal efficiency standard 
would more effectively encourage the use of designs and materials that 
eliminate leakage altogether.'' (NRDC, Public Meeting Transcript, No. 
11 at pp. 72-73; NRDC/ASAP, No. 14 at p. 4) More specifically, NRDC and 
ASAP recommended the incorporation by reference of ASME A112.19.5-2011, 
``Flush valves and spuds for water closets, urinals, and tanks,'' which 
addresses leakage for those products. (NRDC/ASAP, No. 14 at p. 4)
    DOE notes that the purpose of the current rulemaking is to update 
the existing DOE test procedures, which are prescribed primarily for 
measuring the maximum flush volume of water closets and for verifying 
compliance with the applicable Federal water consumption standards. The 
Federal standard does not include a limit on annual water use, nor do 
DOE's test procedures include a measurement of annual water use. 
Further, in accordance with EPCA, DOE is required to consider the most 
current version of industry standards, which do not address annual 
water use of these products. 42 U.S.C. 6293(b)(8) Finally, DOE does not 
currently have enough data to develop a test procedure for quantifying 
annual water use of water closets. Development of such a metric would 
likely require consideration of issues such as usage patterns for the 
products, flushing patterns of sensor-operated valves, and leakage. 
Thus, introduction of an annual water use metric is outside of the 
scope of the current rulemaking.
6. Trough Urinal Reporting Requirements
    In the April 2013 SNOPR, DOE noted that the reporting requirement 
for trough urinals in Sec.  429.31(b)(2) requires reporting of water 
consumption for these products in gallons per minute (gpm). DOE stated 
that the appropriate unit of measurement for reporting water 
consumption of trough-type urinals should be gpf in accordance with the 
Federal standard contained in 10 CFR 430.32(r) and proposed to update 
the requirement in Sec.  429.31(b)(2) to reflect that the water 
consumption of urinals be reported in gpf. 78 FR at 20841.
    In response, three interested parties provided feedback on the 
proposal. PMI, IAPMO, and Kohler all commented that trough-type urinals 
are not equipped with a flushing mechanism and therefore water 
consumption cannot be measured using gpf. (PMI, No. 23 at p. 6; IAPMO, 
No. 25 at p. 2; Kohler, No. 27 at p. 3)
    Based on these comments, DOE reviewed the requirements of 10 CFR 
sections 429.31(b)(2) and 430.32(r) and found that it was in error in 
the April 2013 SNOPR. DOE water conservation standards for trough 
urinals are based on maximum flow rate (i.e., gallons per minute, not 
gallons per flush). Therefore, DOE withdraws the proposal set forth in 
the April 2013 SNOPR to require water consumption for trough-type 
urinals to be reported in gallons per flush. The language currently 
contained in 10 CFR 429.31(b)(2) regarding the reporting of water 
consumption of trough-type urinals will remain unchanged.

C. Commercial Prerinse Spray Valves

    In the May 2012 NOPR, DOE proposed to update its test procedures to 
adopt the industry standard for prerinse spray valve testing to ASTM 
standard F2324-2009. DOE noted in the NOPR that no changes had been 
made to the standard, and that only the date had been updated from 2003 
to 2009. 77 FR 31746 (May 30, 2012). MaP, NRDC, and Chicago Faucets 
commented that test procedures for prerinse spray valves in ASTM 
standard F2324-09 were being updated to reflect new performance tests 
that correlate with user satisfaction. (MaP, No. 10 at p. 5; NRDC, 
Public Meeting Transcript, No. 11 at pp. 43-44; Chicago Faucets, Public 
Meeting Transcript, No. 11 at pp. 44-45) DOE notes that it has 
statutory authority only as it relates to maximum flow rate of prerinse 
spray valves and does not have statutory authority over product 
performance as it relates to user satisfaction. DOE also notes that the 
revised test procedure does not change the maximum flow rate for 
prerinse spray valves. The new version of ASTM standard F2324 has not 
been finalized at the time of this final rule, and DOE cannot 
incorporate by reference a draft test procedure. Thus, this final rule 
incorporates by reference ASTM standard F2324-09 for testing of 
commercial prerinse spray valves.

D. Incorporation by Reference of Standards

1. ASME Standards
    In the May 2012 NOPR, DOE proposed to adopt the updated ASME 
standard (ASME A112.18.1M-2011) to align the DOE test procedures for 
faucets and showerheads with industry practice. 77 FR 31746 (May 30, 
2012). DOE received comments from Moen and Kohler supporting the 
incorporation of the updated ASME standard (Moen, No. 4 at p. 1; 
Kohler, No. 9 at p. 1). PMI, Sloan Valve, and AWE also commented in 
favor of DOE adopting the updated reference to ASME A112.18.1, but 
included a statement that the standard should be incorporated in its 
entirety without edits, modifications, or exceptions. (PMI, No. 8 at p. 
2; Sloan Valve, No. 12 at p. 1; AWE, No. 13 at p. 1) NSF and PMI 
submitted similar comments following publication of the April 2013 
SNOPR. (NSF, No. 22 at pp. 2-3; PMI, No. 23 at pp. 2-3) DOE did not 
receive any comments objecting to the proposal.
    Subsequently, ASME A112.18.1-2012, which is identical to ASME 
A112.18.1-2011 in the sections referenced by DOE, has been reviewed by 
the American National Standards Institute (ANSI) and was approved in 
December 2012. Furthermore, ASME A112.18.1-2012 has been adopted by the 
Canadian Standards Association (CSA) as CSA B125.1. DOE has reviewed 
ASME A112.18.1-2012 and finds that it meets the requirements of 42 
U.S.C. 6293(b)(7)(B). In response to the comment that the entire 
standard should be incorporated, DOE is only incorporating those 
sections relevant to measurement of the flow rate of these covered 
products. Therefore, this final

[[Page 62980]]

rule incorporates by reference section 5.4, Flow Rate, of ASME 
A112.18.1-2012, ``Plumbing Supply Fittings,'' for faucets and 
showerheads.
    In the May 2012 NOPR, DOE also proposed to adopt the updated ASME 
standard (ASME A112.19.2-2008) to align the DOE test procedures for 
water closets and urinals with industry practice. 77 FR 31746 (May 30, 
2012). ASME A112.19.2-2008 has been reviewed by ANSI and was approved 
on August 1, 2008. Furthermore, ASME A112.19.2-2008 has been adopted by 
CSA as CSA B45.1-08. Moen and Kohler submitted comments supporting the 
incorporation of the updated standard (Moen, No. 4 at p. 2; Kohler, No. 
9 at p. 2). PMI, Sloan Valve, and AWE also commented in favor of DOE 
adopting the updated reference to ASME A112.19.2-2008, but included a 
statement that the standard should be incorporated in its entirety 
without edits, modifications, or exceptions. (PMI, No. 8 at p. 3; Sloan 
Valve, No. 12 at p. 2; AWE, No. 13 at p. 2) NSF and PMI submitted 
similar comments following publication of the April 2013 SNOPR (NSF, 
No. 22 at p. 3; PMI, No. 23 at p. 5). In response to the comment that 
the entire standard should be incorporated, DOE is only incorporating 
those sections relevant to measurement of the water consumption of 
these covered products. DOE has reviewed ASME A112.19.2-2008 and finds 
it meets the requirements of 42 U.S.C. 6293(b)(7)(B).
    Therefore, this final rule incorporates by reference section 7.1, 
``General,'' and subsections 7.1.1, 7.1.2, 7.1.3, 7.1.4, and 7.1.5 as 
well as section 7.4, ``Water Consumption Test,'' of ASME A112.119.2-
2008, ``Ceramic Plumbing Fixtures,'' for water closets. For the testing 
of urinals, this final rule incorporates by reference section 8.2, 
``Test Apparatus and General Instructions,'' subsections 8.2.1, 8.2.2, 
and 8.2.3 as well as section 8.6, ``Water Consumption Test,'' of ASME 
A112.19.2-2008, ``Ceramic Plumbing Fixtures.''
2. Automatic Incorporation of Standards
    Moen and Kohler recommended that DOE eliminate a reference to a 
specific version of the ASME standards and instead incorporate language 
in the CFR that requires compliance with the latest revision of the 
applicable ASME standard within two years after its publication by 
ASME. (Moen, No. 4 at pp. 1-2; Kohler, No. 9 at pp. 1-2) EPCA specifies 
that if the test procedure requirements of ASME/ANSI standard 
A112.18.1M-1989 and ASME/ANSI standard A112.19.6-1995 are revised at 
any time and approved by ANSI, the Secretary shall amend the test 
procedures to conform to such revised ASME/ANSI requirements unless the 
Secretary determines by rule that to do so would not meet the 
requirements of paragraph 42 U.S.C. 6293(b)(3). 42 U.S.C. 
6293(b)(7)(B)-(8)(B) EPCA directs that any test procedure prescribed or 
amended by DOE shall be reasonably designed to produce test results 
that measure water use or estimated annual operating cost of a covered 
product during a representative average use cycle or period of use, as 
determined by the Secretary, and shall not be unduly burdensome to 
conduct. 42 U.S.C. 6293(b)(3)(B) Automatically updating the Code of 
Federal Regulations (CFR) to the latest published version of the ASME 
standard does not allow DOE to review the changes made to ensure that 
the revisions meet the requirements in 42 U.S.C. 6293(b)(3) regarding 
representativeness of measurements and the associated test burden of 
the procedure. It also would not address the requirement in EPCA for 
DOE to review test procedures for all covered products every 7 years. 
42 U.S.C. 6293(b)(1)(A). Further, the Administrative Procedure Act 
requires that any substantive amendment to an existing rule be subject 
to prior notice and an opportunity for public comment. Therefore, DOE 
is not adopting the recommendation from Moen and Kohler.
3. ASTM Standard
    In the May 2012 NOPR, DOE proposed to adopt the updated ASTM 
standard F2324-09 to align the DOE test procedures for prerinse spray 
valve maximum flow rate measurement with industry practice. 77 FR 31746 
(May 30, 2012). Moen, PMI, MaP, and AWE all commented in favor of DOE 
adopting the updated reference to ASTM standard F2324-09. (Moen, No. 4 
at p. 2; PMI, No. 8 at p. 3; PMI, Public Meeting Transcript, No. 11 at 
pp. 42-43; MaP, No. 10 at p. 5; AWE, No. 13 at p. 2) DOE has reviewed 
ASTM standard F2324-09 and finds that it meets the requirements of 42 
U.S.C. 6293(b)(7)(B). Therefore, this final rule incorporates by 
reference ASTM standard F2324-09, ``Standard Test Method for Prerinse 
Spray Valves.''

E. Definition of Basic Model

    In the May 2012 NOPR, DOE provided information on the water closet 
and urinal basic model definition and requested comments on the 
interpretation of the current definition of a basic model and factors 
that DOE should consider in clarifying the definition of basic model. 
DOE considered evaluation of this issue to be of importance since the 
water consumption of some types of water closets and urinals, 
particularly those that use a flushometer valve, must be measured by 
combining a flushing mechanism and bowl that are distributed in 
commerce separately, which could complicate the identification of basic 
models for the purposes of testing and certification. During the July 
24, 2012 public meeting, NRDC commented that it is unclear how DOE 
expects the valve/bowl pairing combination to work in practice with 
respect to the basic model definition. To illustrate the lack of 
clarity, NRDC pointed to DOE's own language indicating that different 
valve and bowl combinations could result in different flush volumes. 
(NRDC, Public Meeting Transcript, No. 11 at pp. 60-61) In follow-up 
written comments submitted jointly, NRDC and ASAP stated that DOE's 
explanation in the NOPR of how the compliance certification accounts 
for all possible combinations of a valve and bowl failed to ``clarify 
how a fixture manufacturer can establish that its bowl cannot be paired 
with a flushing device that would provide a higher flush volume and 
still function properly.'' (NRDC/ASAP, No. 14 at p. 6) NRDC stated that 
because DOE is aware of the variability of flush volume based on the 
valve/bowl combination, it must find a way to verify that products 
shipped to commerce can reliably meet the standard. Finally, NRDC and 
ASAP suggested that DOE consider expanding the definition of ``tested 
combination'' in 10 CFR 430.2 to include information specific to water 
closets and urinals along with their associated flushing devices. 
(NRDC/ASAP, No. 14 at p. 6) NRDC and ASAP also inquired as to whether 
new valves shipped into commerce that are not paired with a bowl are 
covered products and require certification. (NRDC, Public Meeting 
Transcript, No. 11 at p. 62; ASAP, Public Meeting Transcript, No. 11 at 
p. 64)
    Based on the comments received, DOE further investigated the issues 
revolving around the basic model definition and certification of water 
closets and urinals. In the April 2013 SNOPR, DOE provided information 
on the definitions of water closet and urinal contained in ASME 
A112.19.2 and 10 CFR 430.2, which both state that these products are 
receiving vessels that, upon actuation, convey waste through a trap to 
a drainage system. The flushing device, such as a flushometer valve, 
does not meet the definition of a

[[Page 62981]]

water closet or urinal, and therefore is not itself a covered produce 
under DOE's regulations. 78 FR at 20838 (Apr. 8, 2013). DOE noted that 
manufacturers are only required to certify the water closet bowl or 
urinal body, but for proper operation, the receiving vessel must be 
paired with a valve during testing and operation. 78 FR at 20839 (Apr. 
8, 2013). Additionally, water closet bowls and urinal bodies are 
designed for specified flush volumes and must be paired with a valve 
designed to deliver that volume to ensure proper operation.
    In order to clarify the requirement for pairing a valve and bowl 
together for testing, DOE proposed to incorporate by reference section 
7.1.5.2 of ASME A112.19.2-2008, which clearly states that a flushometer 
valve must be connected to the test bowl, and specifies that while 
conducting the water consumption test the valve is required to maintain 
a peak flow rate. 78 FR at 20839 (Apr. 8, 2013). A similar provision 
for flushometer urinals was proposed to be incorporated in the May 2012 
NOPR. 77 FR at 31745 (May 30, 2012). DOE further proposed to modify the 
certification requirements in 10 CFR 429.30(b)(2) for water closets and 
429.31(b)(2) for urinals to require manufacturers to identify the 
flushometer valve that was used during the water consumption test.
    Following the April 2013 SNOPR, NRDC and ASAP again commented on 
the definition of basic model and certification requirements. NRDC and 
ASAP stated that the proposal fails to require the valve that is 
actually shipped to be tested and certified and also points out that 
there is no way to establish that the flush volume rating of the valve 
used in the test represents the valve flush volume that will be paired 
with the covered product because other valves are not subject to 
federally recognized testing and certification. The comment lists other 
key attributes that NRDC and ASAP believe DOE's proposal fails to 
account for, which include the following: (1) The product category for 
flushometer water closets and urinals should encompass the valve and 
the china because neither alone would meet the product definition; (2) 
flushometer valves are commonly shipped separately from the china; (3) 
water closet bowls and urinal bodies are often shipped without a valve; 
and (4) ASME A112.19.2-2008 is essentially a test of the valve. (NRDC/
ASAP, No. 26 at pp. 3-4). NRDC and ASAP restated their previous 
proposal that DOE include language in 10 CFR 430.2, ``Tested 
Combination'' to include language and procedures specific to water 
closets and urinals and their associated flushing devices.
    DOE also received comments from NSF, PMI and IAPMO that supported 
the definition of basic model proposed by DOE in the April 2013 SNOPR 
as well as the incorporation of ASME A112.19.2-2008, Section 7.1.5.2. 
(NSF, No. 22 at p. 4; PMI, No. 23 at p. 6; IAPMO, No. 25 at p. 2) 
Kohler requested clarification that the ``valve'' is meant to refer to 
a flushometer valve and not a flush valve housed in a toilet tank. 
Kohler further stated that standard industry practice ``is such that if 
a specific flushing device is required to be used with a fixture, this 
requirement is indicated on the fixture specification sheet. In the 
event the fixture specification sheet does not indicate a specific 
flushing device, any flushing device that operates at the rated marking 
on the fixture can be used.'' (Kohler, No. 27 at p. 3)
    In response to these comments, DOE notes that the purpose of the 
information presented in both the May 30, 2012 NOPR and April 8, 2013 
SNOPR was not to change the existing definition of a basic model of a 
water closet or urinal, but to clarify for manufacturers how individual 
models could be grouped together as a single basic model for the 
purposes of testing and reporting water consumption in accordance with 
10 CFR 429.12. Reported consumption must be based on the maximum flow 
for a given valve/china combination. When a manufacturer certifies a 
given pairing as a basic model, an assurance is provided to DOE that 
the rating, based on the basic model pair, represents the maximum flush 
volume that the basic model pair is designed to provide.
    Therefore, in this final rule, DOE retains the existing definition 
of basic model for water closets and urinals, and incorporates by 
reference section 7.1.5.2 of ASME A112.19.2-2008, which clearly states 
that a flushometer valve must be connected to the test bowl and 
specifies that while conducting the water consumption test for water 
closets, the valve is required to maintain a peak flow rate. However, 
because the addition of new items to the existing reporting 
requirements requires separate review that is not being conducted as 
part of this rulemaking, DOE declines to adopt the requirement that the 
flushometer valve used during the water consumption testing of water 
closets and urinals be included on the certification report, and will 
address that proposal as part of a separate rulemaking.

F. Statistical Sampling Plans

    In the May 2012 NOPR, DOE requested comment on the provisions of 
the statistical sampling plans for faucets, showerheads, water closets, 
urinals, and commercial prerinse spray valves specified in 10 CFR 
sections 429.28, 429.29, 429.30, 429.31, and 429.51, including the 
confidence limits and potential revisions to the respective sampling 
plans that might better reflect the level of repeatability that is 
achievable for each test. 77 FR 31746 (May 30, 2012). Moen, PMI, 
Kohler, Sloan Valve, and AWE all supported retaining the existing 
statistical sampling plans and no dissenting comments were received. 
(Moen, No. 4 at p. 4; PMI, No. 8 at pp. 4-5; Kohler, No. 9 at p. 4; 
Sloan Valve, No. 12 at p. 3; AWE, No. 13 at p. 3) Therefore, in this 
final rule DOE retains the existing statistical sampling plans without 
change.

G. Information To Be Provided in Certification Reports

    In the May 2012 NOPR, DOE proposed to retain the existing general 
reporting requirements as they are listed in 10 CFR 429.12, as well as 
product-specific requirements in 10 CFR 429.28 (for faucets), 429.29 
(for showerheads), 429.30 (for water closets), 429.31 (for urinals), 
and 429.51 (for commercial prerinse spray valves). DOE also proposed to 
move the rounding provisions for all five products to 10 CFR part 429 
to clarify that rounding of the final rated value of water consumption 
for a basic model should occur after application of the sampling 
statistics. 77 FR 31749. No comments were received in response to this 
proposal.
    In the April 2013 SNOPR, DOE proposed to change the certification 
requirements in 10 CFR 429.30(b)(2) for water closets and 429.31(b)(2) 
for urinals to require manufacturers to identify in their certification 
reports the flushometer valve used during the water consumption test. 
78 FR 20839. Under this proposal, the flushometer valve listed on the 
certification report must represent the flush volume of the water 
closet and urinal if used with any other valve with the same flush 
volume rating or less, and must represent the maximum design flush 
volume of the water closet or urinal.
    PMI and IAPMO commented that there was no objection to the 
reporting of the flushometer valve used during testing provided there 
was no implication that only the test valve listed could be used with 
each tested water closet bowl or urinal body. (PMI,

[[Page 62982]]

No. 23 at p. 6; IAPMO, No. 25 at p. 2) No comments were received 
opposing the proposal to require reporting of the flushometer valve 
used during testing in certification reports.
    Based on the comments received, DOE intends to adopt a requirement 
for the flushometer valve used during the water consumption testing of 
water closets and urinals to be included on the certification report. 
However, because the addition of new items to the existing reporting 
requirements requires separate review that is not being conducted as 
part of this rulemaking, DOE is not adopting this requirement in this 
final rule and will revisit this proposal as part of a future 
rulemaking.

H. Changes in Measured Water Use

    In any rulemaking to amend a test procedure, DOE must determine to 
what extent, if any, the proposed test procedure would alter the 
measured energy efficiency or energy use, or, in the case of this 
rulemaking, water use, of any covered product as determined under the 
existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that 
the amended test procedure would alter the measured water use of a 
covered product, DOE must amend the applicable water conservation 
standard accordingly. (42 U.S.C. 6293(e)(2))
    In this final rule, DOE incorporates by reference updated versions 
of ASME A112.18.1-2012, test procedure for faucets and showerheads; 
ASME A112.19.2-2008, test procedure for water closets and urinals; and 
ASTM F2324-09, test procedure for prerinse spray valves. The updated 
industry standards incorporate minor adjustments in test methodology, 
such as changes in temperatures and inclusion of instrument tolerances 
that were not previously specified and, DOE has determined, do not 
alter the measured water consumption.
    In addition, the final rule adds rounding instructions for 
certification reporting requirements for measures of water use for 
these products. Similarly, the addition of the rounding instructions 
for certification reporting does not affect the measured water 
consumption.
    Therefore, based on a consideration of the above, DOE determines 
that the amended test procedure would not alter the measured water use 
of a covered product and that revisions to the water conservation 
standards due to the amended test procedure are not warranted under 42 
U.S.C. 6293(e)(2).

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget has determined that test 
procedure rulemakings do not constitute ``significant regulatory 
actions'' under section 3(f) 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 the Office of 
Management and Budget (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 (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 at 7990. DOE has 
made its procedures and policies available on the Office of the General 
Counsel's Web site: http://www.gc.doe.gov/gc/office-general-counsel.
    DOE reviewed the amendments to the test procedures for plumbing 
equipment including showerheads, faucets, water closets, urinals and 
commercial prerinse spray valves under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. DOE certifies that the amendments would not result in 
significant economic impacts on small entities. The factual basis for 
this certification is set forth in this rulemaking.
    For the plumbing equipment manufacturing industry, the Small 
Business Administration (SBA) has set a size threshold, which defines 
those entities classified as ``small businesses'' for the purpose of 
the statute. DOE used the SBA's size standards to determine whether any 
small entities would be required to comply with the rule. The size 
standards are codified at 13 CFR part 121. The standards are listed by 
North American Industry Classification System (NAICS) code and industry 
description and are available at www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf. Plumbing equipment 
manufacturers are classified under NAICS 332913, ``Plumbing Fixture 
Fitting and Trim Manufacturing,'' and NAICS 327111, ``Vitreous China 
Plumbing Fixture and China and Earthenware Bathroom Accessories 
Manufacturing.'' The SBA sets a threshold of 500 employees or less for 
NAICS 332913, and 750 employees or less for NAICS 327111, for an entity 
to be considered a small business within these categories.
    DOE conducted a focused inquiry into small business manufacturers 
of products covered by this rulemaking. During its market survey, DOE 
used all available public information to identify potential small 
manufacturers. DOE's research involved the review of industry trade 
association membership directories (including the American Society of 
Plumbing Engineers), product databases (e.g., Federal Trade Commission 
(FTC), the Thomas Register[supreg], California Energy Commission (CEC), 
and ENERGY STAR databases), individual company Web sites, and marketing 
research tools (e.g., Dun and Bradstreet reports, and Manta) to create 
a list of companies that manufacture or sell plumbing products covered 
by this rulemaking. Using these sources, DOE identified 83 
manufacturers of showerheads, faucets, water closets, urinals, and 
commercial prerinse spray valves.
    DOE then reviewed this data to determine whether the entities met 
the SBA's definition of a small business manufacturer of covered 
plumbing products and screened out companies that do not offer products 
covered by this rulemaking, do not meet the definition of a ``small 
business,'' or are foreign owned and operated. Based on this review, 
DOE has identified 48 manufacturers that would be considered small 
businesses that would be affected by this rulemaking. Through this 
analysis, DOE determined the expected impacts of the rule on affected 
small businesses and whether an IRFA was needed (i.e., whether DOE 
could certify that this rulemaking would not have a significant 
economic impact on a substantial number of small entities).
    Table IV.1 stratifies the small businesses according to their 
number of employees. The smallest company has 4 employees and the 
largest company 375 employees. The majority of the small businesses 
affected by this rulemaking (88 percent) have fewer than 100 employees. 
Annual revenues associated with these small manufacturers were 
estimated at $492.5 million ($10.3

[[Page 62983]]

million average annual sales per small manufacturer). According to 
DOE's analysis, small entities constitute 58 percent of the entire 
plumbing equipment manufacturing industry covered by the rule.

                             Table IV.1--Small Business Size by Number of Employees
----------------------------------------------------------------------------------------------------------------
                                           Number of small        Percentage of small
         Number of employees                  businesses               businesses         Cumulative percentage
----------------------------------------------------------------------------------------------------------------
1-10.................................                        8                     16.7                     16.7
11-20................................                       10                     20.8                     37.5
21-30................................                        3                      6.3                     43.8
31-40................................                       11                     22.9                     66.7
41-50................................                        3                      6.3                     72.9
51-60................................                        1                      2.1                     75.0
61-70................................                        0                      0.0                     75.0
71-80................................                        5                     10.4                     85.4
81-90................................                        0                      0.0                     85.4
91-100...............................                        1                      2.1                     87.5
101-110..............................                        0                      0.0                     87.5
111-120..............................                        0                      0.0                     87.5
121-130..............................                        0                      0.0                     87.5
131-140..............................                        0                      0.0                     87.5
141-150..............................                        0                      0.0                     87.5
151-200..............................                        2                      4.2                     91.7
201-300..............................                        2                      4.2                     95.8
301-400..............................                        2                      4.2                    100.0
401-500..............................                        0                      0.0                    100.0
                                      --------------------------------------------------------------------------
    Total............................                       48  .......................  .......................
----------------------------------------------------------------------------------------------------------------

    As noted in the Background and Summary sections (I and II) of this 
rule, EPCA requires that DOE review its test procedures for covered 
products at least once every 7 years and to amend them if the Secretary 
determines that to do so would provide test procedures that would more 
accurately or completely measure water use and that are not unduly 
burdensome to conduct. (42 U.S.C. 6293(b)(1)) To comply with EPCA, this 
rule incorporates amendments to ASME test procedures, which have been 
updated for faucets, showerheads, water closets and urinals. 
Additionally, EPCA prescribes use of the ASTM standard F2324 for 
commercial prerinse spray valves, which is a product that is also 
covered in this rulemaking.
Showerheads and Faucets
    DOE is updating its test procedures for showerheads and faucets by 
incorporating by reference AMSE standard A112.18.1-2012. These 
incorporated changes involve minor adjustments in test methodology, 
such as changes in temperatures and inclusion of instrument tolerances 
that were not previously specified, none of which would require any 
additional equipment and are not expected to lengthen the time required 
to complete the test. Because there are no major changes in testing the 
test procedures, calculation methodology or certification requirements 
associated with these amendments, DOE has determined there is no 
incremental cost burden to small entities associated with this change.
Water Closets and Urinals
    DOE is updating its water closet and urinal test procedures from 
those set forth in ASME/ANSI standard A112.19.6-1995 to ASME standard 
A112.19.6-2008. The changes involve minor adjustments in test setup, 
the specification of certain instrumentation tolerances, and minor 
adjustment to test pressures, none of which would require additional 
equipment or lengthen the time required to complete the test. Because 
there are no major changes in the test procedures or requirements for 
these products, DOE incorporates this change by reference. The changes 
adopted in this rule will not alter current testing procedures, 
calculation methodologies, or enforcement. Therefore, DOE has concluded 
there is no incremental cost burden to small manufacturers associated 
with the non-substantive changes in this rule.
Commercial Prerinse Spray Valves
    DOE currently requires that commercial prerinse spray valves be 
tested according to the ASTM ``Standard Test Method for Prerinse Spray 
Valves'' (ASTM F2324-03). This rule does not make any alterations to 
this test, as it has not been updated since the 2003 version that DOE 
incorporated in the CFR. 70 FR 60407 (Oct. 18, 2005). Thus, DOE 
determines there is no incremental cost burden to manufacturers of 
commercial prerinse spray valves associated with this rule.
    As indicated in the discussion associated with small business 
listed in Table IV.1, DOE has analyzed the manufacturing industry for 
showerheads, faucets, water closets, urinals, and commercial prerinse 
spray valves and has determined that 58 percent of all plumbing 
equipment manufacturers could be classified as small entities according 
to the SBA classification. Although 58 percent of the market is a 
significant portion of the overall industry, these manufacturers would 
not be significantly affected by this rule because there are no 
incremental costs to any entity due to its implementation. In the 
absence of potential cost impacts, the rule by definition would not 
have disproportionate effects on small businesses.
    Based on the criteria outlined above, DOE has determined that the 
proposed testing procedure amendments would not have a ``significant 
economic impact on a substantial number of small entities,'' and 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. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of showerheads, faucets, water closets, urinals, and

[[Page 62984]]

commercial prerinse spray valves must certify to DOE that their 
products comply with any applicable water conservation standards. In 
certifying compliance, products must be tested according to the DOE 
test procedures for showerheads, faucets, water closets, urinals, and 
commercial prerinse spray valves, 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 showerheads, faucets, 
water closets, urinals, and commercial prerinse spray valves. 76 FR 
12422 (March 7, 2011). The collection-of-information requirement for 
the certification and recordkeeping is subject to review and approval 
by OMB under the Paperwork Reduction Act (PRA). Public reporting burden 
for the certification is estimated to average 20 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. This requirement has been 
approved by OMB under OMB control number 1910-1400.

D. Review Under the National Environmental Policy Act of 1969

    In this final rule, DOE amends its test procedure for showerheads, 
faucets, water closets and urinals to improve the ability of DOE's 
procedures to more accurately account for the water consumption of 
these products. 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, this rule 
amends an existing rule without affecting the amount, quality, or 
distribution of water usage, and, therefore, will not result in any 
environmental impacts. Thus, this rulemaking is covered by Categorical 
Exclusion A5 under 10 CFR part 1021, subpart D, which applies to any 
rulemaking that interprets or amends an existing rule without changing 
the environmental effect of that rule. 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 at 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 according to 
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 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. Pub. L. 104-4, 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://www.gc.doe.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

[[Page 62985]]

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). 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 (FEAA), 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 procedures addressed by this action 
incorporate testing methods contained in section 5.4 of commercial 
standard ASME A112.18.1-2012 and sections 7.1, 7.1.1, 7.1.2, 7.1.3, 
7.1.4, 7.4, 8.2, 8.2.1, 8.2.2, 8.2.3, 8.6, Table 5, and Table 6 of 
commercial standard ASME A112.19.2-2008. DOE has evaluated these two 
versions of these standards and is unable to conclude whether they 
fully comply with the requirements of section 32(b) of the FEAA (i.e., 
whether they were 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).

V. Approval of the Office of the Secretary

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

List of Subjects

10 CFR Part 429

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Imports, Intergovernmental relations, 
Small businesses.

10 CFR Part 430

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

10 CFR Part 431

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

    Issued in Washington, DC, on September 30, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    For the reasons stated in the preamble, DOE amends parts 429, 430, 
and 431 of chapter II of title 10, Code of Federal Regulations as set 
forth below:

PART 429--CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER 
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT

0
1. The authority citation for part 429 continues to read as follows:

    Authority:  42 U.S.C. 6291-6317.


0
2. Section 429.28 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  429.28  Faucets.

* * * * *
    (b) * * *
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: For non-
metering faucets, the maximum water use in gallons per minute (gpm) 
rounded to the nearest 0.1 gallon; for metering faucets, the maximum 
water use in gallons per cycle (gal/cycle) rounded to the nearest 0.01 
gallon; and for all faucet types, the flow water pressure in pounds per 
square inch (psi).

0
3. Section 429.29 is amended by revising paragraph (b)(2) and removing 
paragraph (b)(3).
    The revision reads as follows:

[[Page 62986]]

Sec.  429.29  Showerheads.

* * * * *
    (b) * * *
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: The maximum 
water use in gallons per minute (gpm) rounded to the nearest 0.1 
gallon, the maximum flow water pressure in pounds per square inch 
(psi), and a declaration that the showerhead meets the requirements of 
Sec.  430.32(p) pertaining to mechanical retention of the flow-
restricting insert, if applicable.

0
4. Section 429.30 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  429.30  Water closets.

* * * * *
    (b) * * *
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: The maximum 
water use in gallons per flush (gpf), rounded to the nearest 0.01 
gallon. For dual-flush water closets, the maximum water use to be 
reported is the flush volume observed when tested in the full-flush 
mode.

0
5. Section 429.31 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  429.31  Urinals.

* * * * *
    (b) * * *
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: The maximum 
water use in gallons per flush (gpf), rounded to the nearest 0.01 
gallon, and for trough-type urinals, the maximum flow rate in gallons 
per minute (gpm), rounded to the nearest 0.01 gallon, and the length of 
the trough in inches (in).

0
6. Section 429.51 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  429.51  Commercial prerinse spray valves.

* * * * *
    (b) * * *
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: The maximum 
flow rate in gallons per minute (gpm), rounded to the nearest 0.1 
gallon.

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
7. 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
8. Section 430.2 is amended by removing the definition for ``Blowout''; 
adding, in alphabetical order, definitions for ``Blowout toilet,'' 
``Dual-flush water closet,'' ``Fitting,'' and ``Hand-held showerhead;'' 
and by revising the definitions of ``Low consumption'' and 
``Showerhead'' to read as follows:


Sec.  430.2  Definitions.

* * * * *
    Blowout toilet means 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.
* * * * *
    Dual-flush water closet means a water closet incorporating a 
feature that allows the user to flush the water closet with either a 
reduced or a full volume of water.
* * * * *
    Fitting means a device that controls and guides the flow of water.
* * * * *
    Hand-held showerhead means a showerhead that can be held or fixed 
in place for the purpose of spraying water onto a bather and that is 
connected to a flexible hose.
* * * * *
    Low consumption has the meaning given such a term in ASME 
A112.19.2-2008. (see Sec.  430.3)
* * * * *
    Showerhead means a component or set of components distributed in 
commerce for attachment to a single supply fitting, for spraying water 
onto a bather, typically from an overhead position, excluding safety 
shower showerheads.
* * * * *

0
9. Section 430.3 is amended by revising paragraphs (g)(1) and (2) to 
read as follows:


Sec.  430.3  Materials incorporated by reference.

* * * * *
    (g) * * *
    (1) ASME A112.18.1-2012, (``ASME A112.18.1-2012''), ``Plumbing 
supply fittings,'' section 5.4, approved December, 2012, IBR approved 
for appendix S to subpart B.
    (2) ASME A112.19.2-2008, (``ASME A112.19.2-2008''), ``Ceramic 
plumbing fixtures,'' 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 approved 
August 2008, including Update No. 1, dated August 2009, and Update No. 
2, dated March 2011, IBR approved for Sec.  430.2 and appendix T to 
subpart B.
* * * * *

0
10. Appendix S to subpart B of part 430 is amended by adding a note 
after the appendix heading and revising section 2, ``Flow Capacity 
Requirements,'' to read as follows:

Appendix S to Subpart B of Part 430--Uniform Test Method for Measuring 
the Water Consumption of Faucets and Showerheads

    Note: After April 21, 2014, any representations made with 
respect to the water consumption of showerheads or faucets must be 
made in accordance with the results of testing pursuant to this 
appendix.

    Manufacturers conducting tests of showerheads or faucets 
November 22, 2013 and prior to April 21, 2014, must conduct such 
test in accordance with either this appendix or appendix S as it 
appeared at 10 CFR part 430, subpart B, appendix S, in the 10 CFR 
parts 200 to 499 edition revised as of January 1, 2013. Any 
representations made with respect to the water consumption of such 
showerheads or faucets must be in accordance with whichever version 
is selected. Given that after April 21, 2014 representations with 
respect to the water consumption of showerheads and faucets 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.
* * * * *

2. Flow Capacity Requirements

    a. Faucets--The test procedures to measure the water flow rate 
for faucets, expressed in gallons per minute (gpm) and liters per 
minute (L/min), or gallons per cycle (gal/cycle) and liters per 
cycle (L/cycle), shall be conducted in accordance with the test 
requirements specified in section 5.4, Flow Rate, of ASME A112.18.1-
2012 (incorporated by reference, see Sec.  430.3). Measurements 
shall be recorded at the resolution of the test instrumentation. 
Calculations shall be rounded off to the same number of significant 
digits as the previous step. The final water consumption value shall 
be rounded to one decimal place for non-metered faucets, or two 
decimal places for metered faucets.
    b. Showerheads--The test procedures to measure the water flow 
rate for showerheads, expressed in gallons per minute (gpm) and 
liters per minute (L/min), shall be conducted in accordance with the 
test requirements specified in section 5.4, Flow Rate, of the ASME 
A112.18.1-2012 (incorporated by reference, see Sec.  430.3). 
Measurements shall be recorded at the resolution of the test 
instrumentation. Calculations shall be rounded off to the same 
number of significant digits as the previous step. The final water 
consumption value shall be rounded to one decimal place. If the 
time/volume method of section 5.4.2.2(d) is used, the container must 
be positioned as to collect all water flowing from the showerhead, 
including any leakage from the ball joint.

[[Page 62987]]


0
11. Appendix T to subpart B of part 430 is amended by adding a note 
after the appendix heading; and revising section 2, ``Test Apparatus 
and General Instructions,'' and section 3, ``Test Measurement,'' 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 April 21, 2014, any representations made with 
respect to the water consumption of water closets or urinals must be 
made in accordance with the results of testing pursuant to this 
appendix.
    Manufacturers conducting tests of water closets or urinals after 
November 22, 2013 and prior to April 21, 2014, must conduct such 
test in accordance with either this appendix or appendix T as it 
appeared at 10 CFR part 430, subpart B, appendix S, in the 10 CFR 
parts 200 to 499 edition revised as of January 1, 2013. Any 
representations made with respect to the water consumption of such 
water closets or urinals must be in accordance with whichever 
version is selected. Given that after April 21, 2014 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.

* * * * *

2. Test Apparatus and General Instructions

    a. The test apparatus and instructions for testing water closets 
shall conform to the requirements specified in section 7.1, General, 
subsections 7.1.1, 7.1.2, 7.1.3, 7.1.4, and 7.1.5 of ASME A112.19.2-
2008 (incorporated by reference, see Sec.  430.3). The flushometer 
valve used in the water consumption test shall represent the maximum 
design flush volume of the water closet. Measurements shall be 
recorded at the resolution of the test instrumentation. Calculations 
of water consumption for each tested unit shall be rounded off to 
the same number of significant digits as the previous step.
    b. The test apparatus and instructions for testing urinals shall 
conform to the requirements specified in section 8.2, Test Apparatus 
and General Instructions, subsections 8.2.1, 8.2.2, and 8.2.3 of 
ASME A112.19.2-2008 (incorporated by reference, see Sec.  430.3). 
The flushometer valve used in the water consumption test shall 
represent the maximum design flush volume of the urinal. 
Measurements shall be recorded at the resolution of the test 
instrumentation. Calculations of water consumption for each tested 
unit shall be rounded off to the same number of significant digits 
as the previous step.

3. Test Measurement

    a. Water closets:
    (i) The measurement of the water flush volume for water closets, 
expressed in gallons per flush (gpf) and liters per flush (Lpf), 
shall be conducted in accordance with the test requirements 
specified in section 7.4, Water Consumption Test, of ASME A112.19.2-
2008 (incorporated by reference, see Sec.  430.3). 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 7.4, 
Water Consumption Test, of ASME A112.19.2-2008.
    (ii) Static pressure requirements: The water consumption tests 
of siphonic and blowout water closets shall be conducted at two 
static pressures. For flushometer valve water closets with a 
siphonic bowl, the test pressures shall be 80 psi and 35 psi. For 
flushometer valve water closets with a blowout bowl, the test 
pressures shall be 80 psi and 45 psi. The test shall be run three 
times at each pressure as specified in section 7.4.3 ``Procedure,'' 
of ASME A112.19.2-2008 (incorporated by reference, see Sec.  430.3). 
The final measured flush volume for each tested unit shall be the 
average of the total flush volumes recorded at each test pressure as 
specified in section 7.4.5 ``Performance,'' of ASME A112.19.2-2008.
    (iii) Flush volume and tank trim component adjustments: For 
gravity flush tank water closets, 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, 
shall be set in accordance with the printed installation 
instructions supplied by the manufacturer. If the installation 
instructions for the model to be tested do not specify trim setting 
adjustments, these trim components shall be adjusted to the maximum 
water use setting so that the maximum flush volume is produced 
without causing the water closet to malfunction or leak. The water 
level in the tank shall be set 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, the water level 
shall be adjusted to 10.1 inches below the top of the 
overflow tube or 1 0.1 inches below the top rim of the 
water-containing vessel (for gravity flush tank water closets that 
do not contain an overflow tube) for each designated pressure 
specified in Table 5 of ASME A112.19.2-2008 (incorporated by 
reference, see Sec.  430.3).
    b. Urinals--The measurement of water flush volume for urinals, 
expressed in gallons per flush (gpf) and liters per flush (Lpf), 
shall be conducted in accordance with the test requirements 
specified in section 8.6, Water Consumption Test, of ASME A112.19.2-
2008 (incorporated by reference, see Sec.  430.3). The final 
measured flush volume for each tested unit shall be the average of 
the total flush volumes recorded at each test pressure as specified 
in section 8.6.4 ``Performance,'' of ASME A112.19.2-2008.

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


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

* * * * *
    (p) Showerheads. The maximum water use allowed for any showerheads 
manufactured after January 1, 1994, shall be 2.5 gallons per minute 
(9.5 liters per minute) when measured at a flowing pressure of 80 
pounds per square inch gage (552 kilopascals). When used as a component 
of any such showerhead, the flow-restricting insert shall be 
mechanically retained at the point of manufacture such that a force of 
8.0 pounds force (36 Newtons) or more is required to remove the flow-
restricting insert, except that this requirement shall not apply to 
showerheads for which removal of the flow-restricting insert would 
cause water to leak significantly from areas other than the spray face.
* * * * *

PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND 
INDUSTRIAL EQUIPMENT

0
13. The authority citation for part 431 continues to read as follows:

    Authority: 42 U.S.C. 6311-6317.


0
14. Section 431.263 is revised to read as follows:


Sec.  431.263  Materials incorporated by reference.

    (a) DOE incorporates by reference the following standard into part 
431. The material listed has been approved for incorporation by 
reference by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. Any subsequent amendment to a standard 
by the standard-setting organization will not affect the DOE 
regulations unless and until amended by DOE. Material is incorporated 
as it exists on the date of the approval and a notice of any change in 
the material will be published in the Federal Register. All approved 
material is available for inspection at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Also, this material is available for inspection at U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Building Technologies Program, 6th Floor, 950 L'Enfant Plaza SW., 
Washington, DC 20024, (202) 586-2945, or go to: http://www1.eere.energy.gov/buildings/appliance_standards. This standard can 
be obtained from the source below.

[[Page 62988]]

    (b) ASTM. American Society for Testing and Materials International, 
100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959, 
(610) 832-9585, or got to http://www.astm.org.
    (1) ASTM Standard F2324-03 (Reapproved 2009), (``ASTM F2324-03 
(2009)''), Standard Test Method for Prerinse Spray Valves, approved May 
1, 2009; IBR approved for Sec.  431.264.
    (2) [Reserved].

0
15. Section 431.264(b) is revised to read as follows:


Sec.  431.264  Uniform test method for the measurement of flow rate for 
commercial prerinse spray valves.

* * * * *
    (b) Testing and Calculations. The test procedure to determine the 
water consumption flow rate for prerinse spray valves, expressed in 
gallons per minute (gpm) or liters per minute (L/min), shall be 
conducted in accordance with the test requirements specified in 
sections 4.1 and 4.2 (Summary of Test Method), 5.1 (Significance and 
Use), 6.1 through 6.9 (Apparatus) except 6.5, 9.1 through 9.5 
(Preparation of Apparatus), and 10.1 through 10.2.5. (Procedure), and 
calculations in accordance with sections 11.1 through 11.3.2 
(Calculation and Report) of ASTM F2324-03 (2009), (incorporated by 
reference, see Sec.  431.263). Perform only the procedures pertinent to 
the measurement of flow rate. Record measurements at the resolution of 
the test instrumentation. Round off calculations to the same number of 
significant digits as the previous step. Round the final water 
consumption value to one decimal place as follows:
    (1) A fractional number at or above the midpoint between two 
consecutive decimal places shall be rounded up to the higher of the two 
decimal places; or
    (2) A fractional number below the midpoint between two consecutive 
decimal places shall be rounded down to the lower of the two decimal 
places.

[FR Doc. 2013-24347 Filed 10-22-13; 8:45 am]
BILLING CODE 6450-01-P