H.R. 843 — National Plumbing Products Efficiency Act of 1991

 
HR 843 IH
102d CONGRESS
1st Session
 H. R. 843
To establish national standards for the manufacture and labeling of certain
plumbing products in order to conserve and protect water resources, and for
other purposes.
IN THE HOUSE OF REPRESENTATIVES
February 6, 1991
Mr. ATKINS (for himself, Mr. MINETA, Mr. MACHTLEY, Mr. WOLPE, Mr. GEJDENSON,
Mr. LEWIS of California, Mr. GILMAN, Mr. DELLUMS, Mrs. BOXER, Mr. BARNARD,
Mr. HOCHBRUECKNER, Mr. PEASE, Mr. JONTZ, Mr. MILLER of California, Ms. KAPTUR,
Mr. NEAL of Massachusetts, Mr. MATSUI, Mr. TORRES, Mr. DEFAZIO, Mr. ROE,
Mr. MCDERMOTT, Mr. BEILENSON, Mr. UDALL, Mr. BUSTAMANTE, Mr. LEWIS of Georgia,
Mr. PANETTA, Mr. CARPER, and Mr. RAVENEL) introduced the following bill;
which was referred to the Committee on Energy and Commerce
A BILL
To establish national standards for the manufacture and labeling of certain
plumbing products in order to conserve and protect water resources, and for
other purposes.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SECTION 1. SHORT TITLE.
  This Act may be cited as the `National Plumbing Products Efficiency Act
  of 1991'.
SEC. 2. FINDINGS.
  The Congress finds that--
  (1) an adequate supply of clean drinking water is a precious and essential
  resource upon which all life and human affairs depend,
  (2) the average annual per capita consumption of potable water due to
  indoor, water-using activities in the United States exceeds 18,000 gallons,
  (3) the demand for clean water supplies continues to increase despite the
  limitations of availability and affordability of such supplies,
  (4) substantial Federal financial investment has been made in water supply
  and wastewater treatment,
  (5) the development of new water supplies may carry substantial economic
  and environmental costs,
  (6) technology is commercially available to improve the water efficiency
  of plumbing products,
  (7) technology is commercially available to improve both the water efficiency
  and energy efficiency of clothes washers and dishwashers,
  (8) the consensus standards developed voluntarily by United States
  manufacturers of plumbing products, including standards for water use,
  reflect the practicality of setting standards for such products and the
  need to save water, but such consensus standards have not kept pace with
  technological change or national water needs and are not uniformly enforced,
  (9) some local jurisdictions have exercised regulatory authority to improve
  water use efficiency standards for some plumbing fixtures, but there are no
  uniform national standards to ensure that plumbing products are efficient
  and reliable so as to facilitate predictable and permanent improvements
  in the efficiency of water use in all jurisdictions, and
  (10) there exists a need for improved data on water use in the residential,
  commercial, industrial, and recreational sectors.
SEC. 3. PURPOSES.
  The purposes of this Act are as follows:
  (1) To promote greater efficiency in residential and commercial water use
  and preserve the natural resources of the United States.
  (2) To reduce consumer water and energy costs by reducing indoor water
  use, reducing the need for new water supplies and treatment facilities,
  lowering operation and maintenance costs for water and sewer utilities,
  and reducing the amount of energy used to heat, treat, and transport water.
  (3) To facilitate interstate commerce and maintain an orderly market for
  certain plumbing products.
  (4) To generate consumer awareness of the need to save water and of the
  water and money that can be saved by purchasing efficient plumbing products.
  (5) To increase the competitiveness in foreign markets of plumbing products
  manufactured in the United States.
  (6) To develop a national data base on residential, commercial, industrial,
  and recreational water use.
TITLE I--WATER USE STANDARDS FOR PLUMBING PRODUCTS
SEC. 101. COVERAGE.
  (a) IN GENERAL- The following plumbing products are subject to this title:
  (1) Water closets, including gravity tank-type toilets, flushometer-tank
  toilets, flushometer-valve toilets, electromechanical hydraulic toilets,
  and all other types of toilets that use water.
  (2) Urinals.
  (3) Showerheads.
  (4) Faucets (lavatory, kitchen, and metering).
  (5) Any other type of plumbing product which the Secretary classifies as a
  covered product under subsection (b). Such products may include drinking
  fountains, water cooled air conditioning systems (and associated cooling
  equipment), tub spout diverters, pressure reducing valves, ballcocks and
  flapper valves packaged and shipped as replacement parts, toilet dams,
  lawn sprinklers, sprinkler heads, and decorative fountains.
  (b) ADDITIONAL CLASSIFICATION OF COVERED PRODUCTS- The Secretary may
  classify other plumbing products as covered products if the Secretary
  determines such classification is necessary or appropriate.
SEC. 102. TEST PROCEDURES.
  (a) IN GENERAL-
  (1) The Secretary shall prescribe a test procedure for a product classified
  as a covered product, at least 180 days before the effective date of the
  water use standard prescribed for such covered product under section 103(a).
  (2) A test procedure prescribed under paragraph (1) shall be designed
  to produce test results which measure the water use and estimated annual
  operating cost of a covered product during a representative average use
  cycle or period of use.
  (3) A test procedure for determining the estimated annual operating cost
  of a covered product shall provide that such costs shall be calculated from
  measurements of the water use of such product on an average per cycle basis
  or on an average annual use basis (as determined by the Secretary) and from
  representative average unit costs of water supply and wastewater treatment
  services incurred in the operation of such product during such cycle or
  annual use. The Secretary shall provide information to manufacturers with
  respect to representative average unit costs of water supply and wastewater
  treatment services.
  (4) Before prescribing any final test procedure under paragraph (1),
  the Secretary shall--
  (A) publish a proposed test procedure in the Federal Register, and
  (B) afford interested persons an opportunity (of not less than 45 days
  or more than 90 days duration) to present oral and written data, views,
  and arguments on the proposed test procedure.
  (b) REEVALUATION OF TEST PROCEDURES-
  (1) The Secretary shall, not later than 3 years after the date of
  prescribing a test procedure under subsection (a) (and from time to time
  thereafter), conduct a reevaluation of such procedure and, on the basis of
  such reevaluation, determine if such test procedure should be amended. In
  conducting such reevaluation, the Secretary shall take into account such
  information as the Secretary considers relevant, including technological
  developments relating to the water use or water efficiency of the covered
  products involved.
  (2) If the Secretary determines under paragraph (1) that a test procedure
  should be amended, the Secretary shall promptly publish in the Federal
  Register a proposed test procedure incorporating such amendments and afford
  interested persons an opportunity to present oral and written data, views,
  and arguments. Such comment period shall not be less than 45 days or more
  than 90 days.
  (c) CASE IN WHICH TEST PROCEDURE NOT REQUIRED- The Secretary is not
  required to publish or prescribe a test procedure for a covered product,
  if the Secretary determines, by rule, that a test procedure cannot be
  developed which produces results of the type described in subsection (a)(2)
  and publishes such determination in the Federal Register, together with
  the reasons therefor.
  (d) RESTRICTION ON CERTAIN REPRESENTATIONS-
  (1) Effective 180 days after a test procedure applicable to a covered
  product is prescribed under subsection (a), no manufacturer, distributor,
  retailer, or private labeler may make any representation--
  (A) in writing (including a representation on a label), or
  (B) in any broadcast advertisement,
with respect to the water use of a covered product to which a test procedure
is applicable under subsection (a) or the cost of water consumed by such
product, unless such product has been tested in accordance with such test
procedure and such representation fairly discloses the result of such testing.
  (2) On the petition of any manufacturer, distributor, retailer, or private
  labeler, filed not later than 60 days before the expiration of the period
  involved, the 180-day period referred to in paragraph (1) may be extended
  by the Secretary with respect to the petitioner (but in no event for more
  than an additional 180 days) if the Secretary finds that the requirements of
  paragraph (1) would impose on such petitioner undue hardship (as determined
  by the Secretary).
SEC. 103. WATER USE STANDARDS FOR COVERED PRODUCTS.
  (a) IN GENERAL- The Secretary shall, subject to the maximum rates of
  water use established for certain plumbing products under subsection
  (b) and in accordance with subsection (c), prescribe water use standards
  for each product classified as a covered product. Such standards shall
  be designed to achieve, in a manner consistent with the maintenance of
  public health and safety, the maximum efficiency of water use which the
  Secretary determines is technologically feasible and economically justified.
  (b) MAXIMUM WATER USE OF CERTAIN PLUMBING PRODUCTS-
  (1) STANDARDS FOR WATER CLOSETS- The maximum water use allowed in gallons
  per flush (gpf) for any of the following water closets, manufactured or
  distributed in commerce on or after July 1, 1992, is the following:
 Gravity tank-type toilets
--1.6 gpf.
 Flushometer-valve toilets
--1.6 gpf.
 Flushometer-tank toilets
--1.6 gpf.
 Electromechanical hydraulic toilets
--1.6 gpf.
  (2) STANDARD FOR URINALS- The maximum water use allowed for any urinal,
  manufactured or distributed in commerce on or after July 1, 1992, is 1.0
  gallons per flush.
  (3) STANDARD FOR SHOWERHEADS- The maximum water use allowed for any
  showerhead, manufactured or distributed in commerce on or after July 1,
  1992, is 2.5 gallons per minute.
  (4) STANDARD FOR FAUCETS- The maximum water use allowed in gallons per
  minute (gpm) or gallons per cycle (gpc) for any of the following faucets
  and replacement aerators, manufactured or distributed in commerce on or
  after July 1, 1992, is the following:
 Lavatory faucets
--2.0 gpm.
 Lavatory replacement aerators
--2.0 gpm.
 Kitchen faucets
--2.5 gpm.
 Kitchen replacement aerators
--2.5 gpm.
 Metering faucets
--0.25 gpc.
  (c) WATER USE STANDARDS FOR OTHER COVERED PRODUCTS- The Secretary shall
  prescribe water use standards for any product that is classified as a
  covered product under section 101(b) and is manufactured or distributed in
  commerce on or after the date that is 3 years after such product receives
  such classification.
  (d) PROCEDURE FOR PRESCRIBING WATER USE STANDARDS- Before prescribing any
  final water use standard, the Secretary shall--
  (1) publish a proposed water use standard in the Federal Register, and
  (2) afford interested persons an opportunity (of not less than 45 days
  duration) to present oral and written data, views, and arguments on the
  proposed water use standard.
  (e) REEVALUATION OF WATER USE STANDARDS-
  (1) The Secretary shall, not later than 30 days after the expiration of
  each 5-year period after the date of the enactment of this title, conduct a
  reevaluation of the water use standards prescribed under subsection (a) and,
  on the basis of such reevaluation and subject to paragraph (2), determine
  if any such standard should be amended. In conducting such reevaluation,
  the Secretary shall--
  (A) determine whether on the date of such reevaluation each water use
  standard continues to meet the requirements contained in subsection (a),
  taking into account such information as the Secretary considers relevant,
  including technological developments relating to the water use or water
  efficiency of the covered products involved, and
  (B)(i) publish existing water use standards in the Federal Register, and
  (ii) afford interested persons an opportunity (of not less than 60 days
  or more than 120 days duration) to present oral and written data, views,
  and arguments.
  (2) The Secretary may not prescribe any amended standard which increases
  the maximum allowable water use of a covered product.
  (3) If the Secretary determines under paragraph (1) that a water use
  standard should be amended, the Secretary shall promptly publish in the
  Federal Register a proposed water use standard incorporating such amendment
  and afford interested persons an opportunity to present oral and written
  data, views, and arguments. Such comment period shall not be less than 45
  days or more than 90 days duration.
  (f) EXEMPTIONS-
  (1) Safety shower showerheads and aspirator facets shall be exempt from
  the standards prescribed under subsection (a).
  (2) In addition to exemptions provided under paragraph (1), the Secretary
  may exempt a class (or a type) of a covered product from the standards
  prescribed under subsection (a) when the Secretary determines that standards
  for a class (or a type) of a covered product are inappropriate or cannot be
  accommodated by existing technology. Such classes (or types) may include
  products used in public buildings, schools, hospitals, or correctional
  facilities. In such cases, the Secretary shall establish a review date
  for such an exemption in order to determine the necessity for a continued
  exemption based on existing technology.
SEC. 104. LABELING AND MARKING REQUIREMENTS.
  (a) IN GENERAL- The Commission shall prescribe labeling and marking rules for
  each product classified as a covered product, except to the extent that, with
  respect to such product, the Commission determines under subsection (b)(4)
  that labeling and marking is not technologically or economically feasible.
  (b) PROCEDURE FOR PRESCRIBING RULES-
  (1) Except as provided in paragraph (4), not later than 30 days after the
  date on which a proposed test procedure applicable to a covered product
  is published under section 102(a) the Commission shall publish a proposed
  labeling and marking rule applicable to such product.
  (2) The Commission shall afford interested persons an opportunity to
  present oral and written data, views, and arguments with respect to proposed
  labeling and marking rules. Such comment period shall not be less than 45
  days or more than 90 days.
  (3) A labeling and marking rule published in accordance with paragraph (1)
  shall take effect not later than 90 days after the date of the prescription
  of such rule, except that such rules may take effect not later than 180
  days after the date of prescription if the Commission determines that such
  extension is necessary to allow persons subject to such rules adequate
  time to come into compliance with such rules.
  (4) The Commission may delay the publication of a proposed labeling and
  marking rule, or the prescription of a labeling and marking rule, if it
  determines that it cannot publish proposed labeling and marking rules
  or prescribe labeling and marking rules which meet the requirements of
  subsections (c) and (d) on or before the dates specified in paragraphs (1)
  and (3) and publishes such determination in the Federal Register, together
  with the reasons therefor. In any such case, the Commission shall publish
  proposed labeling and marking rules or prescribe labeling and marking
  rules for covered products as soon as practicable unless it determines--
  (A) that labeling and marking in accordance with subsections (c) and (d)
  is not economically or technically feasible, or
  (B) that labeling and marking in accordance with subsections (c) and (d)
  is not likely to assist consumers in purchasing decisions.
Any such determination shall be published in the Federal Register, together
with the reasons therefor.
  (c) CONTENT OF LABEL-
  (1) A rule prescribed under subsection (a) shall require that a covered
  product bear a label which discloses the following:
  (A) The estimated annual operating cost of such product (determined in
  accordance with test procedures prescribed under section 102) and the year
  that such cost estimate was made, except that if--
  (i) the Secretary determines that disclosure is not technologically
  feasible, or
  (ii) the Commission determines that such disclosure is not likely to assist
  consumers in making purchasing decisions or is not economically feasible,
the Commission shall require disclosure of a different useful measure of
water use (determined in accordance with test procedures prescribed under
section 102).
  (B) Information respecting the range of estimated annual operating costs
  for a covered product, except that if the Commission requires disclosure
  under subparagraph (A) of a measure of water use different from estimated
  annual operating cost, then the label shall disclose the range of such
  measure of water use of such covered product to which such rule applies.
  (2) A rule under subsection (a) shall include the following:
  (A) A description of the covered product to which the rule applies.
  (B) Subject to paragraph (6), information respecting the range of estimated
  annual operating costs or other useful measure of water use (determined
  in such manner as the rule may prescribe) for such covered product.
  (C) A description of the test procedures under section 102 used in
  determining the estimated annual operating costs or other measure of water
  use of such covered product.
  (D) A prototype label and directions for displaying such label.
  (3) A rule under subsection (a) shall require that the label be displayed
  in a manner that the Commission determines is likely to assist consumers
  in making purchasing decisions. The Commission may permit a tag to be used
  in lieu of a label in any case in which the Commission finds that a tag
  will carry out the purposes for which the label was intended.
  (4) A rule under subsection (a) applicable to a covered product may require
  disclosure, in any printed matter displayed or distributed at the point
  of sale of such product, of any information which may be required under
  this subsection to be disclosed on the label of such product. Requirements
  under this paragraph shall not apply to any broadcast advertisement or
  any advertisement in any newspaper, magazine, or other periodical.
  (5) The Commission may require that the manufacturers of a covered product
  to which a rule subsection (a) applies (A) include on the label, (B)
  separately attach to the product, or (C) ship with the product additional
  information relating to water use, including instruction for the maintenance,
  use, or repair of the covered product, if the Commission determines that
  such additional information would assist consumers in making purchasing
  decisions or in using such product, and that such requirement would not
  be unduly burdensome to manufacturers.
  (6) The Commission may delay the effective date of the requirement
  specified in paragraph (1)(B) applicable to a covered product, insofar
  as it requires the disclosure on the label of information respecting the
  range of a measure of water use, for not more than 12 months after the
  date on which the rule under subsection (a) is first applicable to such
  type or class, if the Commission determines that such information will
  not be available within an adequate period of time before such date.
  (7) A rule prescribed under subsection (a) shall exempt faucets and
  replacement aerators from the requirements of subsection (c)(1).
  (d) MARKING- A rule prescribed under subsection (a) shall further require
  that a covered product, and in the case of water closets and urinals,
  each major component of a covered product, bear a permanent marking which--
  (1) can be easily located and read by consumers, and
  (2) provides consumers with the following information:
  (A) The manufacturer's name or registered trademark.
  (B) The water use of the product as determined under section 102(a)(2).
  (e) PRODUCTS COMPLETED BEFORE EFFECTIVE DATE OF RULES- A rule under
  subsection (a) shall not apply to any covered product the manufacture of
  which was completed before the effective date of such rule.
  (f) STUDY TO DETERMINE COVERAGE FOR ADDITIONAL PRODUCTS- The Secretary, in
  consultation with the Commission, shall study plumbing products for which
  labeling and marking rules under subsection (a) have not been proposed in
  order to determine--
  (1) the aggregate water use of such products, and
  (2) whether the imposition of labeling and marking requirements would
  be feasible and useful to consumers in making purchasing decisions. The
  Secretary shall include the results of such study in the annual report
  under section 113.
SEC. 105. REQUIRED TESTING AND TEST DATA.
  (a) TEST DATA RECORDS-
  (1) Test data shall be kept on file by the manufacturer for each model of
  a covered product for a period beginning 15 days after the prescription
  of a test procedure for such product under section 102 and ending 2 years
  after the production of that model has been terminated.
  (2) Upon notification by the Secretary, a manufacturer or a private labeler
  shall provide, not later than 30 days after the date of such request,
  a report on the underlying test data from which the labeling and marking
  content as required by subsections (b) and (c) of section 104 for each
  basic model was derived.
  (b) REQUIRED TESTING BY DESIGNATED LABORATORY- Upon notification by
  the Secretary, a manufacturer of a covered product shall supply at the
  manufacturer's expense, no more than 2 of each model of each product to the
  Secretary for the purpose of verifying the labeling and marking content
  as required by subsections (b) and (c) of section 104. Such a procedure
  may be required after the Secretary has examined the underlying test data
  provided by the manufacturer and after the manufacturer has been afforded
  the opportunity to reverify test results from which the estimated annual
  water cost or water use for each basic model was derived. A representative
  designated by the Secretary shall be permitted to observe any reverification
  procedures required by this subsection, and to inspect the results of
  such reverification. Charges for testing by designated laboratories will
  be paid by the manufacturer.
SEC. 106. ASSISTANCE FROM NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.
  The Secretary shall direct the National Institute of Standards and
  Technology--
  (1) to provide such assistance as the Secretary considers necessary to
  carry out the Secretary's responsibilities under this title, including the
  development of water use standards under section 103 and test procedures
  under section 102, and
  (2) in coordination with the United States Geological Survey, to establish
  and maintain a water use database for the collection and dissemination
  of data and information relating to water use of plumbing products in the
  United States.
SEC. 107. IMPORTS.
  Any covered product offered for importation in violation of section 108 shall
  be refused admission into the customs territory of the United States under
  rules issued by the Secretary of the Treasury, except that the Secretary
  of the Treasury may, by such rules, authorize the importation of such
  covered product upon such terms and conditions (including the furnishing
  of a bond) as may appear to him appropriate to ensure that such covered
  product will not violate section 108 or will be exported or abandoned to
  the United States. The Secretary of the Treasury shall prescribe rules
  under this section not later than 180 days after the date of the enactment
  of this title.
SEC. 108. PROHIBITED ACTS.
  (a) IN GENERAL- It shall be unlawful--
  (1) for any manufacturer or private labeler to distribute in commerce any
  new covered product which is not in conformity with an applicable water
  use standard prescribed under section 103,
  (2) for any person to fail to comply with an applicable requirement of
  section 102,
  (3) for any manufacturer or private labeler to distribute in commerce any
  new covered product to which a rule under section 104 applies, unless such
  covered product is labeled and marked in accordance with such rule,
  (4) for any manufacturer, distributor, retailer, or private labeler to
  remove from any new covered product or render illegible any label or marking
  required to be provided with such product under a rule under section 104, or
  (5) for any manufacturer to fail to permit access to, or the copying of,
  records required to be supplied under section 105, or fail to make reports
  or provide other information required to be supplied under such section.
  (b) DEFINITION- For the purposes of subsection (a), the term `new covered
  product' means a covered product the title of which has not passed to a
  purchaser who buys such product for purposes other than (1) reselling such
  product, or (2) leasing such product for a period in excess of one year.
SEC. 109. ENFORCEMENT.
  (a) IN GENERAL- Except as provided in subsection (c), any person who
  knowingly violates any provision of section 108(a) shall be subject
  to a civil penalty of not more than $100 for each violation. Such
  penalties shall be assessed by the Commission, except that penalties for
  violations of paragraphs (1) and (2) of section 108(a) shall be assessed
  by the Secretary. Civil penalties assessed under this subsection may be
  compromised by the agency or officer authorized to assess the penalty,
  taking into account the nature and degree of the violation and the impact
  of the penalty upon a particular respondent. Each violation of section
  108(a) shall constitute a separate violation with respect to each covered
  product, and each day of violation of paragraph (5) of section 108(a)
  shall constitute a separate violation.
  (b) DEFINITION- As used in subsection (a), the term `knowingly' means--
  (1) the having of actual knowledge, or
  (2) the presumed having of knowledge deemed to be possessed by a reasonable
  man who acts in the circumstances, including knowledge obtainable upon
  the exercise of due care.
  (c) SPECIAL RULE- It shall be an unfair or deceptive act or practice in or
  affecting commerce (within the meaning of section 5(a)(1) of the Federal
  Trade Commission Act) for any person to violate section 102(d), except
  to the extent that such violation is prohibited under section 108(a)(3),
  in which case such provisions shall apply.
  (d) PROCEDURE FOR ASSESSING PENALTY-
  (1) Before issuing an order assessing a civil penalty against any person
  under subsection (a), the Secretary shall provide to such person notice of
  the proposed penalty. Such notice shall inform such person of his or her
  opportunity to elect in writing within 30 days after the date of receipt
  of such notice to have the procedures of paragraph (3) (in lieu of those
  of paragraph (2)) apply with respect to such assessment.
  (2)(A) Unless an election is made within 30 calendar days after receipt
  of notice under paragraph (1) to have paragraph (3) apply with respect to
  such penalty, the Secretary shall assess the penalty, by order, after a
  determination of violation has been made on the record after an opportunity
  for an agency hearing pursuant to section 554 of title 5, United States
  Code, before an administrative law judge appointed under section 3105 of
  such title. Such assessment order shall include the administrative law
  judge's findings and the basis for such assessment.
  (B) Any person against whom a penalty is assessed under this paragraph
  may, within 60 calendar days after the date of the order of the Secretary
  assessing such penalty, institute an action in the United States court of
  appeals for the appropriate judicial circuit for judicial review of such
  order in accordance with chapter 7 of title 5, United States Code. The
  court shall have jurisdiction to enter a judgment affirming, modifying,
  or setting aside in whole or in part, the order of the Secretary, or the
  court may remand the proceeding to the Secretary for such further action
  as the court may direct.
  (3)(A) In the case of any civil penalty with respect to which the procedures
  of this paragraph have been elected, the Secretary shall promptly assess
  such penalty, by order, after the date of the receipt of the notice under
  paragraph (1) of the proposed penalty.
  (B) If the civil penalty has not been paid within 60 calendar days after the
  assessment order has been made under subparagraph (A), the Secretary shall
  institute an action in the appropriate district court of the United States
  for an order affirming the assessment of the civil penalty. The court shall
  have authority to review de novo the law and the facts involved, and shall
  have jurisdiction to enter a judgment enforcing, modifying, and enforcing
  as so modified, or setting aside in whole or in part, such assessment.
  (C) Any election to have this paragraph apply may not be revoked except
  with the consent of the Secretary.
  (4) If any person fails to pay an assessment of a civil penalty after it
  has become a final and unappealable order under paragraph (2), or after
  the appropriate district court has entered final judgment in favor of the
  Secretary under paragraph (3), the Secretary shall institute an action
  to recover the amount of such penalty in any appropriate district court
  of the United States. In such action, the validity and appropriateness of
  such final assessment order or judgment shall not be subject to review.
  (5)(A) Notwithstanding the provisions of title 28, United States Code, the
  Secretary shall be represented by the general counsel of the Department
  of Commerce (or any attorney or attorneys within the Department of
  Commerce designated by the Secretary) who shall supervise, conduct, and
  argue any civil litigation to which paragraph (3) of this subsection
  applies (including any related collection action under paragraph (4))
  in a court of the United States or in any other court, except the Supreme
  Court. However, the Secretary or the general counsel shall consult with the
  Attorney General concerning such litigation, and the Attorney General shall
  provide, on request, such assistance in the conduct of such litigation as
  may be appropriate.
  (B) The Secretary shall be represented by the Attorney General, or the
  Solicitor General, as appropriate, in actions under this subsection,
  except to the extent provided in subparagraph (A) of this paragraph.
  (6) For the purposes of applying paragraphs (1) through (5) of this
  subsection in the case of the assessment of a penalty by the Commission
  under subsection (a), references to `Secretary' and `Department of Commerce'
  shall be considered references to the `Commission'.
SEC. 110. CITIZEN SUITS.
  (a) IN GENERAL- Except as otherwise provided in subsection (b), any person
  may commence a civil action against--
  (1) any manufacturer or private labeler who is alleged to be in violation
  of any provision of this title or any rule under this title,
  (2) any Federal agency which has a responsibility under this title where
  there is an alleged failure of such agency to perform any act or duty
  under this title which is not discretionary, or
  (3) the Secretary in any case in which there is an alleged failure of the
  Secretary to comply with any nondiscretionary duty to issue a proposed or
  final rule.
The United States district courts shall have jurisdiction, without regard
to the amount in controversy or the citizenship of the parties, to enforce
such provision or rule, or order such Federal agency to perform such act
or duty, as the case may be. The courts shall advance on the docket, and
expedite the disposition of, all cases filed therein pursuant to paragraph
(3). If the court finds that the Secretary has failed to comply with a
deadline established in section 103, the court shall have jurisdiction to
order appropriate relief, including relief that will ensure the Secretary's
compliance with future deadlines for the same covered product.
  (b) LIMITATION- No action may be commenced--
  (1) under subsection (a)(1)--
  (A) prior to 60 days after the date on which the plaintiff has given notice
  of the violation (i) to the Secretary, (ii) to the Commission, and (iii)
  to any alleged violator of such provision or rule, or
  (B) if the Commission has commenced and is diligently prosecuting a civil
  action to require compliance with such provision or rule, but, in any such
  action, any person may intervene as a matter of right,
  (2) under subsection (a)(2) prior to 60 days after the date on which the
  plaintiff has given notice of such action to the Secretary.
  (c) RIGHT TO INTERVENE- In such action under subsection (a), the Secretary or
  the Commission (or both), if not a party, may intervene as a matter of right.
  (d) AWARD OF COSTS OF LITIGATION- The court, in issuing any final order in
  any action brought pursuant to subsection (a), may award costs of litigation
  (including reasonable attorney and expert witness fees and expenses)
  to any party, whenever the court determines such award is appropriate.
  (e) PRESERVATION OF OTHER RELIEF- Nothing in this section shall restrict
  any right which any person (or class of persons) may have under any statute
  or common law to seek enforcement of this title or any rule thereunder,
  or to seek any other relief (including relief against the Secretary or
  the Commission).
  (f) COMPLIANCE IN GOOD FAITH- For the purposes of this section, if a
  manufacturer or private labeler complied in good faith with a rule under
  this title, then he shall not be deemed to have violated any provision of
  this title by reason of the alleged invalidity of such rule.
SEC. 111. EFFECT ON STATE LAW.
  (a) PREEMPTION- Except as provided in subsection (b), a standard, procedure,
  or rule under this title shall supersede any State regulation or river
  basin commission regulation insofar as such regulation provides for--
  (1) any water use standard or other requirement with respect to the water
  use of a covered product if--
  (A) there is a standard in effect under section 103 applicable to such
  product and such regulation is not identical to such standard, or
  (B) there is a rule in effect under section 102 applicable to such product
  and such regulation requires testing in accordance with test procedures
  which are not identical to the test procedures specified in such rule, or
  (2) the disclosure of information with respect to any measure of water
  use of any covered product if--
  (A) there is a rule in effect under section 102 applicable to such product,
  and such regulation requires testing in any manner other than that prescribed
  in such rule under section 102, or
  (B) there is a rule in effect under section 104 applicable to such product,
  and such regulation requires disclosure of information other than information
  disclosed in accordance with such rule under section 104.
  (b) WAIVER OF FEDERAL PREEMPTION-
  (1)(A) Any State or river basin commission with a regulation which provides
  for any water use standard or other requirement with respect to water use
  or water efficiency for any covered product for which there is a Federal
  water use standard under section 103 may file a petition with the Secretary
  requesting a rule that such regulation become effective with respect to
  such covered product.
  (B) Subject to paragraphs (2) through (5), the Secretary shall, within
  the period described in paragraph (2) and after consideration of the
  petition and the comments of interested persons, prescribe such rule if
  the Secretary finds (and publishes such finding) that the State or river
  basin commission has established by a preponderance of the evidence that
  such regulation is needed to meet unusual and compelling State, regional,
  or local water interests.
  (C) For purposes of this subsection, the term `unusual and compelling State,
  regional, or local water interests' means interests which--
  (i) are substantially different in nature or magnitude than those prevailing
  in the United States generally, and
  (ii) are such that the costs, benefits, burdens, and reliability of water
  savings resulting from the State regulation or river basin commission
  regulation make such regulation preferable or necessary when measured against
  the costs, benefits, burdens, and reliability of alternative approaches to
  water savings, including reliance on reasonably predictable market-induced
  improvements in efficiency of all products subject to such regulation.
The factors described in clause (ii) shall be evaluated within the context of
the water supply and groundwater management plan, water quality program, and
comprehensive plan (where one exists) of the State or river basin commission
for improving, developing, or conserving a waterway affected by water supply
development.
  (2) The Secretary shall give notice of any petition filed under paragraph
  (1)(A) and afford interested persons a reasonable opportunity to make
  written comments, including rebuttal comments, thereon. The Secretary
  shall, within the 6-month period beginning on the date on which any such
  petition is filed, deny such petition or prescribe the requested rule,
  except that the Secretary may publish a notice in the Federal Register
  extending such period to a date certain but no longer than 1 year after
  the date on which the petition was filed. Such notice shall include the
  reasons for delay. In the case of any denial of a petition under this
  subsection, the Secretary shall publish in the Federal Register notice of,
  and the reasons for such denial.
  (3) The Secretary may not prescribe a rule under this subsection if the
  Secretary finds (and publishes such finding) that interested persons
  have established, by a preponderance of the evidence, that such State
  regulation or river basin commission regulation will significantly burden
  manufacturing, marketing, distribution, sale, or servicing of the covered
  product on a national basis. In determining whether to make such finding,
  the Secretary shall evaluate all relevant factors, including--
  (A) the extent to which the State regulation or river basin commission
  regulation will increase manufacturing or distribution costs of
  manufacturers, distributors, and others,
  (B) the extent to which the State regulation or river basin commission
  regulation will disadvantage smaller manufacturers, distributors, or
  dealers or lessen competition in the sale of the covered product in the
  State or region subject to the regulation, and
  (C) the extent to which the State regulation or river basin commission
  regulation would cause a burden to manufacturers to redesign and produce
  the covered product, taking into consideration the extent to which the
  regulation would result in a reduction--
  (i) in the current models, or in the projected availability of models,
  that could be shipped on the effective date of the regulation to the State
  or region subject to the regulation and within the United States, or
  (ii) in the current or projected sales volume of the covered product in
  the State or region subject to the regulation and the United States.
  (4) The Secretary may not prescribe a rule under this subsection if the
  Secretary finds (and publishes such finding) that interested persons have
  established, by a preponderance of the evidence, that the State regulation or
  river basin commission regulation is likely to result in the unavailability
  in the State or region subject to the regulation and the United States
  of any covered product type (or class) of performance characteristics
  (including reliability), features, sizes, capacities, and volumes that
  are substantially the same as those generally available in the State or
  region subject to the regulation at the time of the Secretary's finding,
  except that the failure of some classes (or types) to meet this criterion
  shall not affect the Secretary's determination of whether to prescribe a
  rule for other classes (or types).
  (5) No final rule prescribed by the Secretary under this subsection may--
  (A) permit any State regulation or river basin commission regulation to
  become effective with respect to any covered product manufactured within
  3 years after such rule is published in the Federal Register or within 5
  years if the Secretary finds that such additional time is necessary due
  to the substantial burdens of retooling, redesign, or distribution needed
  to comply with the State regulation or river basin commission regulation, or
  (B) become effective with respect to a covered product manufactured before
  the earliest possible effective date specified in section 103 for the
  initial amendment of the water use standard established in such section
  for the covered product, except that such rule may become effective before
  such date if the Secretary finds (and publishes such finding) that, in
  addition to the other requirements of this subsection the State or river
  basin commission has established, by a preponderance of the evidence, that--
  (i) a water emergency condition exists within the State or region subject
  to the regulation which--
  (I) imperils the health, safety, and welfare of its residents because of
  the inability of such State or region to provide adequate quantities of
  water to its residents at less than prohibitive costs, and
  (II) cannot be substantially alleviated by the importation of water or
  the use of interconnection agreements, and
  (ii) the State regulation or river basin commission regulation is necessary
  to alleviate substantially such condition.
  (6) In any case in which a State or river basin commission is issued a rule
  under paragraph (1) with respect to a covered product and subsequently a
  Federal water use standard concerning such product is amended pursuant to
  section 103(e), any person subject to such State regulation or water basin
  commission regulation may file a petition with the Secretary requesting
  the Secretary to withdraw the rule issued under paragraph (1) with respect
  to such product in such State or region. The Secretary shall consider
  such petition in accordance with the requirements of paragraphs (1),
  (3), and (4), except that the burden shall be on the petitioner to show
  by a preponderance of the evidence that the rule received by the State or
  river basin commission under paragraph (1) should be withdrawn as a result
  of the amendment to the Federal standard. If the Secretary determines that
  the petitioner has shown that the rule issued by the State or river basin
  commission should be so withdrawn, the Secretary shall withdraw it.
  (c) EXCEPTION FOR CERTAIN STATE PROCUREMENT STANDARDS- Any State regulation
  which sets forth procurement standards for a State (or political subdivision
  thereof) shall not be superseded by the provisions of this part if such
  standards are more stringent than the corresponding Federal water use
  standards.
SEC. 112. ADVISORY COMMITTEE.
  The Secretary shall establish an advisory committee which shall report
  annually to Congress on the implementation of this title by the Secretary
  and the Commission. The members of such advisory committee shall include
  representatives of the manufacturers, distributors, and installers of
  plumbing products, representatives of water supply and wastewater treatment
  agencies, and representatives of environmental, consumer protection,
  and engineering organizations and professional societies and shall be
  appointed to such terms as the Secretary considers appropriate. Such
  advisory committee shall be subject to the requirements of the Federal
  Advisory Committee Act (5 U.S.C. App.).
SEC. 113. ANNUAL REPORT.
  The Secretary shall report to Congress and the President either (1) as
  part of his annual report, or (2) in a separate report submitted annually,
  on the progress of the program undertaken pursuant to this title and on
  the water use impact of this title. Each such report shall specify the
  actions undertaken by the Secretary in carrying out this title during
  the period covered by such report, and those actions, if any, which the
  Secretary was required to take under this title during such period but
  which were not taken, together with the reasons thereof.
SEC. 114. DEFINITIONS.
  For the purposes of this title, the following definitions apply:
  (1) The term `commerce' means trade, traffic, commerce, or transportation--
  (A) between a place in a State and any place outside thereof, or
  (B) which affects trade, traffic, commerce, or transportation between a
  place in a State and any place outside thereof.
  (2) The term `Commission' means the Federal Trade Commission.
  (3) The term `covered product' means a product which under section 101(a)
  is subject to this title.
  (4) The term `Department' means the Department of Commerce.
  (5) The term `distributor' means a person (other than a manufacturer or
  retailer) to whom a covered product is delivered or sold for purposes of
  distribution in commerce.
  (6) The terms `to distribute in commerce' and `distribution in commerce' mean
  to sell in commerce, to import, to introduce or deliver for introduction
  into commerce, or to hold for sale or distribution after introduction
  into commerce.
  (7) The term `estimated annual operating cost' means the national average
  aggregate retail cost of the water which is likely to be consumed annually
  in the representative use of a plumbing product, determined in accordance
  with section 102.
  (8) The terms `import' and `importation' means to import into the customs
  territory of the United States.
  (9) The term `manufacture' means to manufacture, produce, assemble,
  or import.
  (10) The term `person' includes (A) any individual, (B) any corporation,
  company, association, firm, partnership, society, trust, joint venture,
  or joint stock company, and (C) the government and any agency of the United
  States or any State or political subdivision thereof.
  (11)(A) The term `private labeler' means an owner of a brand or trademark
  on the label of a plumbing product which bears a private label, and
  (B) A plumbing product bears a private label if--
  (i) such product (or its container) is labeled with the brand or trademark
  of a person other than a manufacturer of such product.
  (ii) the person with whose brand or trademark or a manufacturer of such
  product does not appear on such label.
  (12) The term `plumbing product' means any product of a type which in
  operation consumes, transports, or uses water.
  (13) The term `retailer' means a person to whom a plumbing product is
  delivered or sold, if such delivery or sale is for purposes of sale or
  distribution in commerce to purchasers who buy such product for purposes
  other than resale.
  (14) The term `Secretary' means the Secretary of the Department of Commerce.
  (15) The term `State' means a State, the District of Columbia, Puerto Rico,
  or any territory or possession of the United States.
  (16) The term `State regulation' means a law or regulation of a State or
  political subdivision thereof.
  (17) The term `river basin commission' means a commission established by
  interstate compact to apportion, store, regulate, or otherwise manage or
  coordinate the management of the waters of a river basin and a commission
  established under section 201(a) of the Water Resources Planning Act
  (42 U.S.C. 1962b(a)).
  (18) The term `water use standard' means a performance standard which
  prescribes a maximum quantity of water use for a covered product, determined
  in accordance with test procedures prescribed under section 102.
  (19) The term `water use' means the quantity of water used or consumed
  by a plumbing product at point of use, determined in accordance with test
  procedures under section 102.
SEC. 115. AUTHORIZATION FOR APPROPRIATIONS.
  There are authorized to be appropriated to carry out this title:
  (1) $1,000,000 for fiscal year 1992.
  (2) $2,000,000 for fiscal year 1993.
  (3) $2,000,000 for fiscal year 1994.
  (4) $1,500,000 for fiscal year 1995.
  (5) $1,500,000 for fiscal year 1996.
TITLE II--WATER USE STANDARDS FOR DISHWASHERS AND CLOTHES WASHERS
SEC. 201. AMENDMENTS TO ENERGY POLICY AND CONSERVATION ACT.
  (a) STATEMENT OF PURPOSE- Section 2 of the Energy Policy and Conservation
  Act (42 U.S.C. 6201) is amended--
  (1) by striking out `and' at the end of paragraph (6),
  (2) by striking out the period at the end of paragraph (7) and inserting
  in lieu thereof `; and', and
  (3) by adding at the end the following new paragraph:
  `(8) to conserve water supplies by improving the water efficiency of
  dishwashers and clothes washers.'.
  (b) DEFINITIONS- Section 321(a) of such Act (42 U.S.C. 6291(a)) is amended--
  (1) in paragraph (7), by inserting `, and in the case of dishwashers and
  clothes washers, the aggregate retail cost of water supply and wastewater
  treatment services likely to be incurred annually,' after `to be consumed
  annually', and
  (2) by adding at the end the following new paragraph:
  `(30) The term `total water use' means the quantity of water directly used
  by a dishwasher or clothes washer at point of use, determined in accordance
  with test procedures under section 323.'.
  (c) TEST PROCEDURES- Section 323(b)(3) of such Act (42 U.S.C. 6293(b)(3))
  is amended by striking out `or estimated annual operating cost' and inserting
  in lieu thereof `estimated annual operating cost, or total water use,'.
  (d) STANDARDS- Section 325(g)(4) of such Act (42 U.S.C. 6295(g)(4))
  is amended--
  (1) in subparagraph (B)--
  (A) by striking out `five years' and inserting in lieu thereof `three
  years', and
  (B) by striking out the period at the end of the second sentence and
  inserting in lieu thereof the following: `and shall establish in such rule
  standards for total water use by dishwashers and clothes washers.', and
  (2) in subparagraph (C), by striking out `five years' and inserting in
  lieu thereof `three years'.
National Plumbing Products Efficiency Act of 1991

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