Energy Conservation Program: Definition of Showerhead, 81341-81359 [2020-27280]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 85, Number 242 (Wednesday, December 16, 2020)]
[Rules and Regulations]
[Pages 81341-81359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27280]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2020-BT-TP-0002]
RIN 1904-AE85


Energy Conservation Program: Definition of Showerhead

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

ACTION: Final rule.

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SUMMARY: In this final rule, the U.S. Department of Energy (``DOE'') 
adopts a revised definition for ``showerhead'' and definitions for 
``body spray'' and ``safety shower showerhead''. The revised regulatory 
definition for ``showerhead'' is consistent with the most recent 
standard developed by the American Society of Mechanical Engineers 
(``ASME'') in 2018, such that each showerhead in a product containing 
multiple showerheads would be considered separately for purposes of 
determining standards compliance. DOE has determined that the 
definition is consistent with EPCA and, unlike the current definition, 
compliant with the National Technology Transfer and Advancement Act and 
Office of Management and Budget (``OMB'') Circular A-119. In addition, 
the definition is consistent with DOE's treatment of other products, 
such as body sprays. DOE is also defining the terms ``body spray'' and 
``safety shower showerhead'' to clarify which products are not subject 
to the current energy conservation standard. With regard to the 
showerhead test procedure, DOE emphasizes in this final rule that the 
existing test procedure remains applicable for purposes of measuring 
the water use of a showerhead as defined in this final rule. DOE is not 
finalizing any test procedure amendments in this final rule.

DATES: The effective date of this rule is January 15, 2021. The 
incorporation by reference of certain publications listed in this rule 
is approved by the Director of the Federal Register on January 15, 
2021.

ADDRESSES: The docket for this rulemaking, which includes Federal 
Register notices, comments, and other supporting documents/materials, 
is available for review at https://www.regulations.gov. All documents 
in the docket are listed in the https://www.regulations.gov index. 
However, not all documents listed in the index may be publicly 
available, such as information that is exempt from public disclosure. 
The docket web page can be

[[Page 81342]]

found at: https://www.regulations.gov/docket?D=EERE-2020-BT-TP-0002. The 
docket web page contains instructions on how to access all documents, 
including public comments, in the docket.

FOR FURTHER INFORMATION CONTACT: Ms. Amelia Whiting, U.S. Department of 
Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue 
SW, Washington, DC 20585. Telephone: (202) 586-2588. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: DOE incorporates by reference the following 
industry standard into 10 CFR part 430:
    ANSI/ISEA Standard Z358.1-2014, ``American National Standard for 
Emergency Eyewash and Shower Equipment'', approved January 8, 2015.
    Copies of ANSI/ISEA Z358.1-2014, can be obtained from International 
Safety Equipment Association, 1901 North Moore Street, Suite 808, 
Arlington, Virginia 22209 or American National Standards Institute, 25 
West 43 St., 4th Floor, New York, NY 10036, https://ansi.org.
    For a further discussion of this standard, see section IV.M.

Table of Contents

I. Summary of Final Rule
II. Authority and Background
    A. Authority
    B. Background
III. Discussion
    A. Justification for Showerhead Definition Revision
    1. Ambiguity in Showerhead Definition
    2. Reasoning for Showerhead Definition Revision
    3. NTTAA and OMB Circular A-119
    B. Anti-Backsliding Consideration
    C. Definition of Body Spray and Safety Shower Showerhead
    1. Body Spray
    2. Safety Shower Showerhead
    D. Testing Requirements
    E. Water Conservation
    F. Additional Issues
    1. State Regulation of Showerhead
    2. Procedural Comments
    3. Consumer Choice
    4. Cost Impact and Technical Analysis
    5. Adoption of Consensus Standards
    6. Other Comments
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 13771 and 13777
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act of 1995
    E. Review Under the National Environmental Policy Act of 1969
    F. Review Under Executive Order 13132
    G. Review Under Executive Order 12988
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under the Treasury and General Government 
Appropriations Act, 1999
    J. Review Under Executive Order 12630
    K. Review Under Treasury and General Government Appropriations 
Act, 2001
    L. Review Under Executive Order 13211
    M. Description of Materials Incorporated by Reference
    N. Congressional Notification
V. Approval of the Office of the Secretary

I. Summary of Final Rule

    In this final rule, DOE is revising its prior interpretation of the 
EPCA definition of ``showerhead'' to interpret the term as defined in 
ASME A112.18.1-2018. DOE defines ``showerhead'' as ``any showerhead 
including a handheld showerhead other than a safety shower 
showerhead.'' This definition restates the statutory definition of 
``showerhead,'' at 42 U.S.C. 6291(31)(D). Through this final rule, DOE 
also includes in its regulatory definition of ``showerhead'', its 
interpretation of the term ``showerhead'' to mean ``an accessory to a 
supply fitting for spraying water onto a bather, typically from an 
overhead position.'' This interpretation incorporates the ASME 
definition.
    DOE believes that interpreting the term ``showerhead'' consistent 
with the ASME definition is more appropriate than DOE's previous 
interpretation of ``showerhead.'' As described in section II.A of this 
document, DOE recognizes that the statutory definition of the term 
``showerhead'' is ambiguous in key respects. Accordingly, to provide 
clarity to regulated entities and the public concerning what is meant 
by the term, DOE is revising its regulatory definition of showerhead 
using the definition of ``showerhead'' in ASME A112.18.1-2018. The most 
current ASME standard continues to define a showerhead as it did in 
2011 when DOE first issued interpretive guidance for showerheads that 
defined the term to include all showerheads in a multi-head product --
``an accessory to a supply fitting for spraying water onto a bather, 
typically from the overhead position.''
    Under DOE's definition, each showerhead included in a product with 
multiple showerheads would separately be required to meet the 2.5 
gallons per minute (``gpm'') standard established in EPCA. As explained 
in the discussion that follows, DOE concludes that its interpretation 
of the term ``showerhead'' is consistent with Congressional intent in 
establishing the EPCA definition of ``showerhead'' and the associated 
energy conservation standard. DOE's final rule is also consistent with 
the requirements of the National Technology Transfer and Advancement 
Act of 1995, Public Law 104-113, section 12(d), Mar. 7, 1996, 110 Stat. 
783, as amended by Public Law 107-107, Div. A, Title XI, section 1115, 
Dec. 28, 2001, 115 Stat. 1241 (``NTTAA''), 15 U.S.C. 272 note, and the 
associated OMB Circular A-119, which directs Federal agencies to use 
voluntary consensus standards unless inconsistent with applicable law 
or otherwise impracticable.\1\ In addition, DOE's rule treats products 
with multiple showerheads in a manner consistent with DOE's treatment 
of similar products, such as body sprays. Body sprays are not included 
in the current definition of showerhead. A regulatory definition of 
showerhead that allows each showerhead in a multiheaded product to be 
tested for purposes of compliance with the 2.5 gpm standard provides 
more consistent regulatory treatment for these products than a 
definition that considers all of the showerheads together, essentially 
prohibiting products with multiple showerheads that are no different 
from body sprays in their water use.
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    \1\ Section 12(d) of the NTTAA provides that with one exception, 
all Federal agencies and departments shall use technical standards 
developed or adopted by voluntary consensus standards bodies 
(``voluntary consensus standards''), using such standards as a means 
to carry out policy objectives or activities determined by the 
agencies and departments. The statutory exception is that a Federal 
agency or department may elect to use other technical standards if 
using voluntary consensus standards is inconsistent with applicable 
law or otherwise impractical, and if the agency head submits to OMB 
an explanation of the reasons for using the alternative standards. 
See 15 U.S.C. 272 note. Section 6 of OMB Circular A-119, available 
at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A119/revised_circular_a-119_as_of_1_22.pdf, reiterates the 
requirement for Federal agencies to use voluntary consensus 
standards unless inconsistent with applicable law or otherwise 
impracticable, and to issue guidance for agency reporting to OMB 
when standards other than voluntary consensus standards are used.
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    DOE also is defining the terms ``body spray'' and ``safety shower 
showerhead'' so that it is clear that these products are not considered 
showerheads subject to DOE's test procedures and energy conservation 
standards.

II. Authority and Background

A. Authority

    Title III of EPCA (42 U.S.C. 6291, et seq.) sets forth a variety of 
provisions designed to improve energy efficiency and, for certain 
products, water efficiency.\2\ 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

[[Page 81343]]

showerheads, the subject of this rulemaking. (42 U.S.C. 6292(a)(15)) 
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.
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    \2\ All references to EPCA refer to the statute as amended 
through America's Water Infrastructure Act of 2018, Public Law 115-
270 (Oct. 23, 2018).
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B. Background

    EPCA defines a showerhead simply as ``any showerhead (including a 
handheld showerhead), except a safety shower showerhead.'' In addition 
to defining ``showerhead,'' EPCA established a maximum water use 
threshold of 2.5 gallons per minute (``gpm'') applicable to ``any 
showerhead.'' Both the definition of showerhead and the 2.5 gpm 
standard were added to EPCA by the Energy Policy Act of 1992 (Pub. L. 
102-486; Oct. 24, 2991, ``EPAct 1992''). From 1992 to 2013, DOE 
regulations did not contain a separate definition of ``showerhead.''
    DOE issued a notice of availability of a proposed interpretive rule 
relating to the definition of showerhead in May 2010. 75 FR 27926 (May 
19, 2010). In the proposed interpretive rule, available at https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002, DOE noted 
that there were a myriad of showerhead designs marketed under names 
such as waterfalls, shower towers, rainheads and shower systems. DOE 
intended the proposed interpretive rule to address ``uncertainty'' in 
how the EPCA definition of showerhead and the 2.5 gpm water 
conservation standard apply to such products, which have multiple 
nozzles. The proposed interpretive rule sought comment on DOE's 
proposed interpretation of the term ``showerhead'' to mean ``any 
plumbing fitting designed to direct water onto a bather,'' including a 
fitting that comprises a set of showerheads, as conventionally 
understood (i.e., a set of accessories that each spray water onto a 
bather). Under this interpretation, the Department would find a 
``showerhead'' (i.e., a fitting comprising multiple showerheads) to be 
noncompliant with EPCA's maximum water use standard if the showerhead's 
standard spraying ``components,'' operating in their maximum design 
flow configuration and when taken together, use a total in excess of 
2.5 gpm, even if each spraying component individually does not use an 
amount that exceeds 2.5 gpm. Id.
    DOE did not finalize the proposed interpretive rule. Instead, DOE 
withdrew the draft interpretive rule from review by OMB and in 2011 
issued enforcement guidance that achieved essentially the same result. 
(See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf).\3\ The Department stated in the enforcement 
guidance that multiple spraying components, when sold together as a 
single unit designed to spray water onto a single bather, constitute a 
single showerhead for purposes of compliance with the 2.5 gpm standard. 
The guidance did not apply to tub spouts, locker room showers, or 
emergency showers, or to handheld showers where the sprayer cannot run 
at the same time as the main nozzle. To determine whether a showerhead 
complied with the standard, DOE would measure a showerhead's water use 
by turning on all of the unit's sprays and nozzles to their maximum 
flow settings. Id. In issuing the guidance, DOE stated its view that 
the term ``any showerhead'' was sufficiently clear that no interpretive 
rule was needed. The Department also stated its view that this 
interpretation was consistent with both the industry standard 
incorporated into EPCA and the plain language and intent of Congress in 
establishing a maximum water use requirement for showerheads. Because 
manufacturers had developed the ``myriad of products'' referenced in 
the draft interpretive rule based on their ``apparent 
misunderstanding'' of how to measure compliance with the 2.5 gpm 
standard, however, DOE provided an enforcement grace period of 2 years 
from issuance of the guidance for manufacturers to sell any remaining 
non-compliant multi-nozzle products and adjust product designs to 
ensure compliance with the standard. Id.
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    \3\ The 2011 guidance was superseded by the October 2013 final 
rule described. This final rule would supersede the 2013 final rule 
by providing for a different interpretation of the term 
``showerhead'' as defined in EPCA.
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    DOE subsequently proposed to change its regulatory definition of 
showerhead as part of a proposed rule to revise the test procedures for 
showerheads and other products. 77 FR 31742, 31747-31748, 31755 (May 
30, 2012). In that proposed rule, DOE proposed to adopt definitions for 
the terms ``fitting'' and ``accessory'', as well as a definition of 
``showerhead'' that used those terms. Under DOE's proposed definition, 
all components defined as an ``accessory,'' or a combined set of 
accessories, to a supply fitting represented a single covered product 
that would be required to meet the 2.5 gpm standard established in 
EPCA.
    Specifically, DOE proposed to define an ``accessory'', with respect 
to plumbing fittings, as a component that can, at the discretion of the 
user, be readily added, removed or replaced. Removal of the accessory 
will not prevent the fitting from fulfilling its primary function. 77 
FR 31742, 31755. DOE proposed to define a ``fitting'' as a device that 
controls and guides the flow of water. Id. These definitions were 
consistent with the ASME definition current at that time, ASME A112-
18.1-2011. DOE also proposed to define a ``showerhead''; however, it 
defined that term in a manner different from the ASME definition. 
Specifically, the ASME standard defined ``showerhead'' as ``an 
accessory to a supply fitting for spraying water onto a bather, 
typically from an overhead position.'' 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 an overhead 
position.'' Id. DOE stated that the definition included body sprays and 
hand-held showerheads but did not include safety showerheads.\4\
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    \4\ DOE proposed to define ``body spray'' as a shower device for 
spraying water onto a bather from other than the overhead position. 
DOE proposed to define a ``hand-held showerhead'' as a showerhead 
that can be fixed in place or used as a movable accessory for 
directing water onto a bather.
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    In response to comments on the proposed rule, DOE issued a 
supplemental notice of proposed rulemaking (``SNOPR'') to revise the 
definitions of showerhead and hand-held showerhead and to remove body 
sprays from the definition of showerhead. 78 FR 20832, 20834-28835, 
20841 (Apr. 8, 2013) (``April 2013 SNOPR''). Specifically, Kohler 
Company (``Kohler'') and Sloan Valve Company (``Sloan Valve'') 
responded to the proposal by recommending that DOE use the definition 
of showerhead in ASME A112.18.1-2011. The Natural Resources Defense 
Council (``NRDC'') commented that a showerhead should not be defined as 
an accessory, and both NRDC and the International Code Council 
supported including body sprays in the DOE definition. These comments 
were contrary to comments from the Plumbing Manufacturers International 
(``PMI''), Moen Incorporated (``Moen'') and Kohler, who stated that 
body sprays should not be included or considered an accessory because 
they cannot be readily added or removed by the user. Id. at 78 FR 
20834-28835.
    In the April 2013 SNOPR, DOE again declined to propose the ASME 
definition of showerhead. DOE reasoned that the ASME definition did not 
sufficiently address DOE's regulatory coverage, because it did not 
specifically include hand-held showerheads or exclude safety 
showerheads. DOE also

[[Page 81344]]

revised its proposed definition of showerhead (and hand-held 
showerhead) so that the term ``accessory'' would not be included in the 
proposed definition. DOE instead proposed to use the undefined term 
``component''. Specifically, DOE proposed to define showerhead as ``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 shower showerheads.'' 78 FR 20832, 
20841. DOE proposed that body sprays not be covered by the DOE 
definition of showerhead, stating that further study of the issue was 
needed before it could determine whether to include body sprays in the 
definition. 78 FR 20832, 20834-20835. DOE also considered defining the 
term ``safety shower showerhead'' to address the question of which 
products qualify for exclusion from coverage under EPCA and DOE 
regulations. DOE noted that the Occupational Safety and Health 
Administration (``OSHA'') did not define the term, but that certain 
state regulatory requirements referenced ANSI standard Z358.1, 
Emergency Eyewash and Shower Equipment, which contains specific design 
and performance criteria that must be met, such as flow rate and 
accessibility. DOE stated that these criteria could help develop a 
definition of safety shower showerhead. Id.
    Industry commenters on the April 2013 SNOPR, including Kohler, PMI, 
NSF International (``NSF''), the International Association of Plumbing 
and Mechanical Officials, Chicago Faucets, and Moen, stated that DOE 
should adopt the definition of showerhead in ASME A112.18.1. The 
majority of these commenters also supported DOE's proposal not to 
include body sprays within the definition of showerhead. NRDC, the 
Appliance Standards Awareness Project, and the California Energy 
Commission did not support removal of body sprays from the definition. 
These comments are described in DOE's final rule, published in October 
2013. 78 FR 62970, 62973 (Oct. 23, 2013) (``October 2013 final rule'').
    After considering these comments, DOE issued a final rule in 
October 2013 adopting a slightly modified version of the definition set 
forth in the April 2013 SNOPR. Specifically, DOE defined showerhead in 
the October 2013 final rule as ``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.'' 78 FR 62970, 62973, 62986. DOE 
continued to include hand-held showerheads within the definition of 
showerhead. DOE excluded body sprays from the definition but did not 
finalize the definition of ``body spray'' set forth in the NOPR. DOE 
also declined to adopt a definition of ``safety shower showerhead'' to 
clarify those showerheads that EPCA had exempted from coverage.
    DOE issued a NOPR on August 13, 2020 proposing to revise the 
current definition of ``showerhead'', to adopt definitions for ``body 
spray'' and ``safety shower showerhead'', and to clarify application of 
the current test procedure consistent with the proposed definitional 
changes. 85 FR 49284 (``August 2020 NOPR''). DOE held a public webinar 
on September 3, 2020 to hear oral comments and solicit information 
relevant to the August 2020 NOPR.

III. Discussion

    Based on careful consideration of comments submitted during the 
comment period provided for this rulemaking, the Department is revising 
its prior interpretation of the EPCA definition of ``showerhead'' to 
interpret the term showerhead using the definition of the term in ASME 
A112.18.1-2018. DOE is also adopting definitions for the terms ``body 
spray'' and ``safety shower showerhead.'' DOE is not finalizing the 
proposal to clarify application of the test procedure discussed in the 
NOPR.
    DOE received comments including from the International Association 
of Plumbing and Mechanical Officials (``IAPMO''); Sierra Club and 
Earthjustice (the Joint Commenters); Alliance for Water Efficiency, et 
al. (``AWE, et al.''); Appliance Standards Awareness Project 
(``ASAP''), along with Alliance for Water Efficiency (``AWE''), 
Consumer Federation of America (``CFA''), the National Consumer Law 
Center, NRDC, the Northwest Energy Efficiency Alliance, and the 
American Council for an Energy-Efficiency Economy (``ACEEE'') 
(collective referred to as ASAP); the Competitive Enterprise Institute 
(CEI); interested consumers; and others.

A. Justification for Showerhead Definition Revision

1. Ambiguity in Showerhead Definition
    EPCA defines the term ``showerhead'' generically to ``mean[] any 
showerhead (including a handheld showerhead), except a safety shower 
showerhead.'' (42 U.S.C. 6291(31)(D)) In a May 2010 draft interpretive 
rule, DOE stated that uncertainty existed in application of the EPCA 
definition of showerhead and the 2.5 gpm standard to the ``myriad of 
products'' marketed under names such as waterfalls, shower towers, 
rainheads and shower systems. These products had been designed, 
manufactured, and marketed with knowledge of, and in the 19 years 
since, the 1992 law that established a definition of showerhead and the 
applicable 2.5 gpm standard. Less than a year later, in March 2011, DOE 
published enforcement guidance defining the term showerhead in a manner 
that deviated significantly from the ASME definition by determining 
that products with multiple showerheads constitute only one showerhead 
for purposes of EPCA. In the enforcement guidance, DOE further stated 
that the term ``any showerhead'' in EPCA was ``sufficiently clear such 
that no interpretive rule was needed''. DOE reached this conclusion 
despite DOE's statements in its 2010 draft interpretive rule about a 
lack of clarity and the development of the market since enactment of 
the 1992 definition of showerhead. Also despite the supposed clarity in 
the definition, DOE provided a two year grace period for manufacturers 
to sell products that the enforcement guidance in effect rendered 
noncompliant with the standard. DOE's October 2013 final rule then 
codified in its regulations the showerhead definition set forth in the 
2011 enforcement guidance, rendering the guidance unnecessary. 
Following these developments, the number of multi-headed showerheads in 
the market decreased significantly from the ``myriad of products'' 
cited by DOE in 2010.
    DOE received comments in support of addressing ambiguity regarding 
the definition of a ``showerhead.'' (Grimm, No. 0065; CEI, No. 0058 at 
p. 2) Grimm supported the proposal that clarifies regulatory intent on 
the definition of showerhead and coincides with the current edition of 
the ASME voluntary standards. (Grimm, No. 0065) The Competitive 
Enterprise Institute (``CEI'') explained that historically there was 
some ambiguity regarding models with multiple showerheads and whether 
the 2.5 gpm standard applied to each showerhead or the entire unit. 
(CEI, No. 0058 at p. 2)
    DOE reiterates its view that ambiguity exists regarding what is 
considered a ``showerhead'' under EPCA. To address this confusion noted 
by Grimm and the CEI, DOE is finalizing this rule to clarify what 
constitutes a showerhead, consistent with statutory direction that

[[Page 81345]]

DOE's regulations for plumbing products, including showerheads, be 
based on the voluntary consensus definition in ASME A112.18.1-2018.
    Other commenters stated that there does not seem to be any 
ambiguity perceived by the industry or stakeholders. (Bay Area Water 
Supply & Conservation Agency (``BAWSCA''), No. 0050 at p. 2; Walnut 
Valley Water District (``WVWD''), No. 0051 at p. 1) Miulli argued that 
DOE has admitted that the term ``showerhead'' is not ambiguous and that 
the 2-year grace period was not due to ambiguity, but rather to allow 
industry to adapt to new rules. (Miulli, No. 0052 at p. 2) Further, 
Miulli stated that manufacturers of showerheads have been complying 
with the testing requirements since 2016 without evidence of ambiguity. 
To the extent that the DOE is basing this rulemaking on confusion 
within the industry, the DOE should disclose such evidence to the 
public. (Miulli, No. 0052 at p. 2)
    In response, DOE notes that a number of considerations support the 
conclusion that the term ``showerhead'' in EPCA is ambiguous: (1) DOE's 
own statements in the May 2010 draft interpretive rule; (2) the long-
standing existence of waterfalls, shower towers and similar products on 
the market prior to DOE's 2011 enforcement guidance that effectively 
eliminated these products; and (3) the two-year grace period DOE 
provided in the enforcement guidance in recognition of these products. 
Specifically, in relation to the two-year grace period, DOE stated that 
manufacturers had developed a myriad of products based on a 
``misunderstanding'' of how to measure compliance with the 2.5 gpm 
standard, and that the two year grace period provided manufacturers the 
time to adjust product designs to comply with the standard. (See 
https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf.) DOE has historically noted that the term 
``showerhead'' is ambiguous, as evidenced by the May 2010 draft 
interpretative rule. If there was no ambiguity in what was meant by the 
definition of ``showerhead'', it is unclear why manufacturers would 
have developed so many noncompliant products during the time period 
from adoption of the definition in 1992 to the issuance of DOE's 
enforcement guidance in 2011, and why a 2-year grace period was 
provided to allow for the sale of such product. Further, this final 
rule does not amend current test procedure for showerheads. Instead, 
this rulemaking aligns the definition of showerhead with that of the 
industry standard, ASME A112.18.1-2018.
2. Reasoning for ``Showerhead'' Definition Revision
    DOE received comments questioning DOE's reasoning for this 
rulemaking. (Shojinaga, No. 0015; Shepard, No. 0020; Sheegog, No. 0014 
at p. 1; White, No. 0013; ASAP, No. 0086 at p. 3-4; ASAP, Public 
Meeting Transcript at p. 9) ASAP also stated that the information on 
the record and in the public domain demonstrates that the complaints 
are unfounded. In response, DOE reiterates that it is finalizing this 
rulemaking to address ambiguity regarding what constitutes a 
showerhead.
    CEC asserted that DOE's proposed interpretation effectively creates 
regulatory loopholes that would exempt certain showerheads, 
specifically multi-headed showerheads and body sprays, from the maximum 
water flow standard set by Congress and as such, is not a ``permissible 
construction of the statute'' nor is it ``sufficiently reasonable'' to 
effectuate the statutory language. If Congress had intended to exclude 
more showerheads than safety showerheads, it would have done so 
explicitly. (CEC, No. 0083 at p. 3) PIRG also claimed that Congress did 
not intend the ``showerhead'' definition to be based on ASME because 
other definitions in the same paragraph include the phrase ``the 
meaning given such term in ASME A112.19.2M-1990.'' (PIRG, No. 0082 at 
p. 6 citing 42 U.S.C. 6291 (31)(F-H))
    As DOE discussed in the August 2020 NOPR, EPCA relies on ASME 
standard for the test method, the standards, and the marking and 
labeling requirements. In the definition section, immediately preceding 
the definition of showerhead, Congress also included definitions of 
ASME and ANSI. (42 U.S.C. 6291(31)(B)-(C)) Because the other provisions 
in EPCA regarding showerheads relate to the ASME standard, Congress 
clearly intended that the definition would also align with the ASME 
standard. It would be inconsistent if the definition developed by DOE 
deviated significantly from the ASME definition such that it creates 
confusion in how to apply the standards and test methods. This final 
rule ensures that there is no confusion between the definition of 
showerhead and the testing and standard requirements for showerheads. 
In addition, DOE is not creating ``loopholes'' in revising the 
regulatory definition; each showerhead in a multi-headed product would 
be required to comply with the standard. DOE further emphasizes that 
body sprays are not currently within the definition of showerhead under 
the 2013 final test procedure rule, so they are not currently subject 
to DOE's testing requirements and the existing energy conservation 
standard.
    PIRG also argued DOE says EPAct 1992 ``relied on the ASME standard 
for measuring the water use of showerheads.'' 85 FR 29290 (citing 42 
U.S.C. 6293(b)(7)). But the cited section states only that ``[t]est 
procedures for showerheads . . . shall be the test procedures specified 
in ASME A112.18.1M-1989.'' (42 U.S.C. 6293(b)(7)) PIRG stated that test 
procedures simply measure water use--the rate of water flow through a 
fitting and through a nozzle (or multiple nozzles). (42 U.S.C. 
6293(b)(3)) PIRG argued further that the cited statutory section says 
nothing about what constitutes a showerhead in the first place, or how 
much water should be allowed to flow through a nozzle. Making the test 
procedures depend on ASME's methods certainly does not suggest that 
ASME documents should determine those broader questions of showerhead 
definition and cumulative flow. (PIRG, No. 0082 at pp. 6-7) CEC further 
claimed that because DOE is bound by EPCA, and ASME/ANSI is not so 
bound, Congress explicitly instructed DOE to adopt the ASME/ANSI test 
procedure unless the Secretary determines that the test procedure, 
including the instructions and relevant definitions, conflicts with 
EPCA. (CEC, No. 0083 at p. 4)
    As explained in the NOPR, the Energy Policy Act of 1992 illustrated 
Congress' intent that DOE adhere to ASME standards. When EPCA was 
amended in 1992 to define showerhead and to establish a test method and 
water conservation standard for showerheads, Congress specified that 
the test method applicable to showerheads is the procedure specified in 
ASME A112.18.1M-1989. (42 U.S.C. 6293(b)(7)(A)) If that ASME standard 
is revised and approved by ANSI, DOE is required to amend its test 
procedures to conform to those revisions unless doing so would be 
inconsistent with other provisions of EPCA. (42 U.S.C. 6293(b)(7)(B)) 
In the definition section, immediately preceding the definition of 
showerhead, Congress also included definitions of ASME and ANSI. 42 
U.S.C. 6291(31)(B)-(C). The 2.5 gpm standard required compliance with 
ASME/ANSI A112.18.1M-1989 with regard to the amount of force needed to 
remove the flow restrictor from the showerhead. (42 U.S.C. 6295(j)(1)) 
Even the marking and labeling requirements are required to be 
consistent with those

[[Page 81346]]

of ASME A112.18.1M-1989, or a subsequently revised version as 
appropriate. 42 U.S.C. 6294(a)(2)(E). While commenters are correct that 
EPCA does not include an explicit direction regarding the definition of 
showerhead, as discussed previously, DOE has found that reliance on the 
ASME standard for this final rule is consistent with Congress's 
reliance on ASME. In particular, if the definition developed by DOE 
deviated significantly from the ASME definition, it would create 
confusion in how to apply the standards and test methods that Congress 
directed be consistent with ASME.
    The CA Investor-Owned Utilities (IOUs) argued that this proposal 
will introduce confusion into an established market. (CA IOUs, Public 
Meeting Transcript at p. 13) Commenters also claimed that the proposal 
is inconsistent with previous DOE statements regarding the ASME 
definition. (CA IOUs, Public Meeting Transcript at p. 13; Miulli, No. 
0052, pg. 3) PIRG also argued that none of DOE's justifications provide 
any reasonable basis for changing the definition of showerhead so as to 
allow more than 2.5 gpm cumulatively from a single fitting. (PIRG, No. 
0082 at p. 6)
    DOE disagrees that this final rule would introduce confusion into 
the market by aligning DOE's definition of ``showerhead'' with the ASME 
definition. DOE's 2011 enforcement guidance introduced confusion such 
that the Department felt it necessary to provide a 2-year grace period 
for manufacturers to sell product that the guidance effectively 
rendered noncompliant. In contrast, this rulemaking ensures that the 
definition in DOE's regulations aligns with that used in the ASME 
standard for showerheads, which is well known by manufacturers in the 
industry. As discussed throughout this document, DOE is only revising 
the definition of showerhead and has not amended the current energy 
conservation standard nor is it finalizing the test procedure 
clarifications.
    PIRG asserted that DOE's supposed justification is that Congress 
preferred DOE to align with voluntary industry standards. 85 FR 49287 & 
n.5. Therefore, DOE says, it must adopt a definition of ``showerhead'' 
consistent with the one in ASME's current standard. PIRG notes that an 
``accessory,'' under the ASME standards, can be ``readily added, 
removed, or replaced.'' As a result, PIRG asserts that DOE's 
interpretation of the ASME definition of ``showerhead'' in the NOPR 
cannot be correct because ASME defines an accessory as ``a component 
that can, at the discretion of the user, be readily added, removed, or 
replaced and that, when removed, will not prevent the fitting from 
fulfilling its primary function.'' PIRG stated that removal of one 
showerhead from a multi-headed product would result in an uncontrolled 
jet of water from the empty port. As a result, because removal prevents 
the fitting from fulfilling its primary function, a single showerhead 
in a multi-headed product cannot, on its own, be considered a 
showerhead. PIRG further asserts that DOE used the word ``component'' 
in the 2013 final rule because it wanted to be able to cover sprayers 
that cannot so easily be removed--namely, body sprays. DOE's original 
proposed definition used the word ``accessory,'' but then explicitly 
included body sprays. As a result of commenters' statements that body 
sprays are not accessories because they are not removable, PIRG states 
that DOE issued a supplemental proposal to switch from ``accessory'' to 
the word ``component'' to eliminate removability as a criterion. (PIRG, 
No. 0082 at pp. 4-5)
    Commenters also noted that to fulfill the intent of greater 
alignment noted in the NOPR, DOE should also incorporate the 
definitions of accessory, body spray, showerhead, and safety showerhead 
in the current ASME standard. (AWE, et al., No. 0079 at p. 2) \5\ Other 
commenters stated that DOE has ignored defining key provisions 
including ``accessory'' and ``supply fitting.'' (Joint Commenters, No. 
0085 at p. 3; ASAP, No. 0086 at pp. 3-4)
---------------------------------------------------------------------------

    \5\ The AWE stakeholders submitted two versions of their 
stakeholder letter. The first version is comment No. 0072; the 
second letter, which includes additional signatures, is the version 
referenced throughout this document.
---------------------------------------------------------------------------

    DOE has adopted the ASME definitions for showerhead and body spray 
in this final rule. The term ``supply fitting'' is not defined in the 
ASME standard. The term ``safety shower showerhead'' is also not 
defined in the ASME standard, but DOE has adopted as the definition of 
``safety shower showerhead'' a showerhead that is consistent with the 
requirements of another voluntary consensus standard, ANSI Z358.1-2014, 
American National Standard for Emergency Eyewash and Shower Equipment. 
With regard to adoption of the term ``accessory'' in the ASME standard, 
DOE acknowledges commenters' concerns regarding application of the ASME 
definition of ``accessory'' (which includes showerheads) to a single 
showerhead in a multi-headed product, and the attendant result of 
removal of that showerhead. DOE notes, however, that removal of a 
showerhead with a single nozzle (as opposed to one showerhead from a 
multi-headed product) would also result in an ``uncontrolled jet of 
water from the empty port''. Because removal of that single showerhead 
would therefore also prevent the fitting from fulfilling its primary 
function, under the commenters' approach, even a showerhead with a 
single nozzle would not be considered an accessory pursuant to the ASME 
definition. Therefore, the issue raised by commenters existed under 
DOE's 2013 regulatory definition of ``showerhead,'' though no concern 
had previously been expressed.
    DOE continues to believe it is not necessary to include the 
definition of ``accessory'' in its regulations. ASME defines the term 
``accessory'' to include a showerhead. DOE reads that definition of 
accessory in concert with the definition of showerhead to mean that a 
showerhead is a type of accessory and ASME makes clear that an 
accessory includes, as an example, showerheads. Accordingly, adding a 
definition of accessory (a commonly understood term) in DOE's 
regulations would add nothing that is essential to an understanding of 
what constitutes a showerhead.
    In addition, and as stated previously, adoption of ASME's 
definition of showerhead conforms to Congressional intent, and is also 
consistent with comments received by DOE in the 2013 rulemaking that 
urged DOE to adopt the definition in the ASME standard. 78 FR 20832, 
20834. During this proceeding, questions arose related to the use of 
the word ``accessory'' and its impact on body sprays. DOE chose to use 
the phrase ``component'' rather than ``accessory'' (which commenters 
indicated would not include body sprays), but did not address whether 
body sprays are included in showerheads. 78 FR 62970, 62972-62973 (Oct. 
23, 2013). But as stated in the NOPR, an interest in retaining the 
ability to include body sprays within the regulatory definition of 
showerhead at some future time should not lead DOE to depart from the 
term ``accessory'' that had been, and continues to be, used 
consistently in the ASME definition. Similarly, DOE now recognizes that 
defining products with multiple showerheads to constitute a single 
``showerhead'' inappropriately expands the definition of ``showerhead'' 
beyond the ASME definition.
    With regard to whether 42 U.S.C. 6295(o)(4) precluded DOE from 
effectively banning multi-nozzle showerheads, the Joint Commenters 
claimed that DOE has not shown any consumer utility in allowing higher

[[Page 81347]]

water use levels for multi-nozzle showerheads, much less the degree of 
utility that must be present to support invoking 42 U.S.C. 6295(o)(4). 
The Joint Commenters stated that DOE's claim that 42 U.S.C. 6295(o)(4) 
somehow raises the bar for Congress to legislate a product out of 
existence by codifying an energy conservation standard is incorrect. 
That Congress chose to restrict DOE's ability to adopt standards that 
would eliminate certain product features from the market says nothing 
about what a subsequent Congress intended when it enacted legislation 
that can reasonably be read to restrict the availability of certain 
products. (Joint Commenters, No. 0085 at p. 4) CEC argued that based on 
the plain language of the statute, section 6295(o)(4) applies only to 
standards. However, CEC stated that DOE's 2013 final rule did not 
directly or effectively amend any standards; instead, it clarified 
existing authority and had no regulatory effect. CEC commented that DOE 
seems to reference 42 U.S.C. 6295(o)(4) as evidence that DOE's previous 
rulemaking was unlawful because it impermissibly resulted in the 
unavailability of a certain performance characteristic. (CEC, No. 0083 
at p. 6) Commenters argued that DOE's own analysis shows that the 
existing market includes multi-headed showerheads that meet the current 
standard. Therefore, no performance characteristic was eliminated from 
the market and DOE has not provided any evidence that consumers are not 
happy with the existing multi-headed showerheads. (CEC, No. 0083 at p. 
6; PIRG, No. 0082 at pp. 3-4)
    PIRG argued that DOE's new interpretation is contrary to those 
standards and goals of EPAct 1992, as it will permit higher water 
usage. DOE has said plainly that the new interpretation will mean a 
three-nozzle showerhead counts, for purposes of the water conservation 
standard, as three showerheads, each permitted to emit 2.5 gpm of water 
flow. Single-nozzle heads have been commonplace for decades, and single 
nozzles with 2.5 gpm flow have been the norm since DOE announced its 
current interpretation in 2011. PIRG also asserted that DOE does not 
suggest the three-nozzle showerhead has a distinctive functionality, or 
a value as a product category that DOE's 2011 interpretation would have 
eliminated. If the standard is interpreted to apply only at the level 
of nozzles, then the sole functional difference is that the three-
nozzle head would allow for exceeding the statutory maximum of 2.5 gpm. 
Presumably, PIRG argues, DOE believes that consumers will value being 
able to get additional water flow from multiple nozzles. But that 
functionality--enabling increased water use beyond the maximum standard 
set by Congress--is not one that can justify a regulatory decision 
under EPCA. (PIRG, No. 0082 at p. 3)
    Section 6295(o)(4) of EPCA states that DOE may not prescribe a new 
or amended standard if the Secretary finds that the standard ``is 
likely to result in the unavailability of performance characteristics 
and features that are substantially the same as those generally 
available in the United States at the time of the Secretary's 
finding''. DOE is uncertain as to the commenters' reference to ``value 
as a product category'', as that term does not appear in 42 U.S.C. 
6295(o)(4). With regard to the ``distinct functionality'', or whether 
being multi-headed as opposed to single headed is a ``feature'', DOE 
has previously determined that refrigerator-freezer configurations, 
oven door windows, and top loading clothes washer configurations are 
all features. 84 FR 33869, 33872 (July 16, 2019). DOE's consideration 
of a two, three or eight showerheads (as opposed to one) in a given 
product as a ``feature'' is consistent with DOE's previous rulemakings 
and determinations of what constitutes a feature. DOE also 
acknowledges, as is the case with this definitional rule, that the 2013 
rule was not a standards rulemaking and did not comply with the 
statutory requirements of a standards rulemaking. The effect, however, 
was the same in that multi-headed showerhead products, while not 
entirely eliminated from the market, were significantly reduced in 
availability as a result of the 2011 enforcement guidance. In addition, 
DOE acknowledges that Congress may pass legislation to eliminate a 
performance characteristic or feature from the market. The Joint 
Commenters imply that in establishing the 2.5 gpm standard, Congress 
intended to restrict the availability of certain showerheads in the 
market. (See Joint Commenter, No. 0085 at p. 4) In 42 U.S.C. 
6295(j)(1), EPCA sets a maximum water use standard for showerheads, but 
it does not provide any other restrictions about how the showerhead is 
designed beyond that it must meet the requirements of ASME/ANSI 
A112.18.1M-1989, 7.4.3(a). Contrary to commenters' assertions, Congress 
did not act to remove products from the market.
    Commenters stated that DOE violated the Administrative Procedure 
Act (APA) in proposing to revise the regulatory definition of 
showerhead. (PIRG, No. 0082 at p. 14; Center for Biological Diversity, 
No. 0071 at pp. 1-2; AWE, No. 0080 at p. 3) PIRG stated that the 
proposal falls far short of what the APA requires for such a 
substantial change. PIRG also asked DOE to provide information on: What 
products exist currently with multiple nozzles? How popular will high-
flow showerheads be? How much additional water will showers consume? 
How much energy will that cost? How long will it take manufacturers to 
design, and retool to make these products and what is the cost? (PIRG, 
No. 0082 at p. 14) The Center for Biological Diversity also argues that 
DOE violated the APA by failing to provide analysis of its impact on 
the environment or threatened or endangered species. The commenter 
cites the Supreme Court decision in (Burlington Truck Lines, Inc. v. 
United States, 371 U.S. 156, 371 (1962) to assert that for DOE's 
showerhead NOPR, as with the rule at issue in that case, there are no 
findings and no analysis to justify the choice made, and no indication 
of the basis on which the agency exercised its expert discretion. The 
Court stated that the Court was not prepared to, nor would the APA 
permit the Court to, accept agency promulgation of a rule under such 
circumstances.
    AWE cited to Encino Motorcars v. Navarro (2016), stating that the 
U.S. Supreme Court has required agencies attempting to change 
definitional standards that have actual legal effects to explain the 
change in greater detail than if they were rulemaking for the first 
time. Changes in agency interpretations may be arbitrary and capricious 
under the APA unless fully explained and the implication of the change 
fully set forth. (AWE, No. 0080 at p. 3) The Joint Commenters argued 
that were DOE to follow its own professed rationale and align its 
regulations with ASME, each nozzle in a multi-nozzle showerhead would 
not meet the Department's proposed ``showerhead'' definition. DOE's 
refusal to act in accord with its own reasoning renders the proposal 
arbitrary and capricious. (Joint Commenter, No. 0085 at p. 3 (citing 
Air Transport Ass'n v. DOT, 119 F.3d 38, 43 (D.C. Cir. 1997) (``the 
most serious logical problem'' with the agency's regulation--which the 
Court ``simply cannot accept''--is that agency's explanation ``is 
internally inconsistent'').)
    DOE has met the APA's requirements for issuing a final rule and has 
explained its reasoning for revising the definition of showerhead and 
defining body spray and safety shower showerhead. As discussed in 
Section II of the NOPR and section III of this final rule, DOE has 
explained in detail the

[[Page 81348]]

reasons for the definitional change. With respect to the information 
requested by PIRG, DOE provided information in the NOPR with regard to 
the very small percentage of multi-headed showerheads available on the 
market today. Other information requested by PIRG is speculative (e.g., 
How popular will high-flow showerheads be? How much additional water 
will showers consume? How much energy will that cost? How long will it 
take manufacturers to design, and retool to make these products and 
what is the cost?) DOE emphasizes that the rule does not impose costs 
on manufacturers or consumers. The rule instead revises the regulatory 
definition of showerhead consistent with congressional intent. DOE does 
not dictate manufacturing or consumer purchasing choices as a result of 
this rule, and manufacturers can choose whether to produce multi-headed 
showerhead products depending on their particular circumstances.
3. NTTAA and OMB Circular A-119
    In accordance with the NTTAA, OMB Circular A-119, and EPCA, DOE 
proposed to adopt definitions from voluntary consensus standards. 85 FR 
49284, 49289-49291. DOE received comments regarding the appropriateness 
of relying on the consensus industry standards as it relates to 
showerhead. PIRG claimed that DOE cannot rely on the NTTAA to justify 
its matching of the definition of showerhead to the ASME standard. The 
2.5 gpm showerhead maximum flow rate was not a policy objective 
determined by DOE; it was a water conservation standard determined by 
Congress. NTTAA does not instruct DOE to base its interpretation of 
Congress's policy by referring to industry standards. NTTAA itself 
states that an agency should not follow an industry standard where that 
is ``inconsistent with applicable law.'' Public Law 104-113, 12(d), 110 
Stat. 775, 783. And as discussed, EPAct 1992 described in detail how 
the showerheads program should interact with ASME standards--NTTAA does 
not repeal or amend those directives. (PIRG, No. 0082 at p. 8)
    PIRG argued that DOE's reliance on OMB Circular A-119 is misplaced 
for the same reasons. To state the obvious, Circular A-119 cannot trump 
the statute. Like the NTTAA, Circular A-119 does not instruct an agency 
to follow industry standards where doing so would be ``inconsistent 
with applicable law.'' 85 FR 49287 n.5. In particular, Congress 
specified the policy goals that DOE must consider when it makes rules 
under EPCA. Circular A-119 cannot supplant those policy goals with an 
extra-statutory mandate. (PIRG, No. 0082 at p. 8) Commenters also 
argued that the reference to OMB Circular A-119 and DOE's explanation 
clearly points out the inappropriateness of this proposed changed in 
the definition, because the ASME definition frustrates and is 
inconsistent with the statutory requirement to establish and maintain 
an upper bound no the flowrate of showerhead. (NRDC, No. 0033 at pp. 
21-22; Joint Commenters, No. 0085 at pp. 3-4) Earthjustice questioned 
whether the proposed testing requirements that you only test the nozzle 
with the highest flow is consistent with the ASME standard; if not, 
this would seem inconsistent with DOE's rationale for this rulemaking. 
(Earthjustice, Public Meeting Transcript at pp. 18-19)
    DOE considered the requirements of the NTTAA when developing its 
definitions. The NTTAA requires DOE to use voluntary consensus 
standards in lieu of government-unique standards in their regulatory 
activities, except where inconsistent with law or otherwise 
impractical. (See Pub. L. 104-113, section 12(d), Mar. 7, 1996, 110 
Stat. 783, as amended by Pub. L. 107-107, Div. A, Title XI, section 
1115, Dec. 28, 2001, 115 Stat. 1241 (``NTTAA''), 15 U.S.C. 272 note 
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A119/revised_circular_a-119_as_of_1_22.pdf.) As the commenters note, 
OMB Circular A-119 directs Federal agencies to use voluntary consensus 
standards unless inconsistent with applicable law or otherwise 
impracticable. EPCA certainly does not preclude DOE from using such 
industry standards. The statutory text of EPCA does not make compliance 
with OMB Circular A-119 inconsistent with applicable law or otherwise 
impracticable. DOE disagrees that the ASME definition frustrates and is 
inconsistent with the requirements of EPCA. Similar to the discussion 
above in regards to NTTAA, DOE has concluded that its definition, which 
is the same as the ASME definition, is compliant with EPCA. DOE has 
also determined that it is practicable to adopt the ASME definition. 
The ASME definition is well understood by showerhead manufacturers. In 
addition, contrary to DOE's reasoning in the 2013 rulemaking, it is not 
necessary that the ASME definition specifically exclude safety 
showerheads, because EPCA already does so.

B. Anti-Backsliding Consideration

    When establishing a new product class, DOE must consider EPCA's 
general prohibition against prescribing ``any amended standard which 
increases the maximum allowable energy use, or, in the case of 
showerheads, faucets, water closets, or urinals, water use, or 
decreases the minimum required energy efficiency, of a covered 
product'' in any rulemaking to establish standards for a separate 
product class. (42 U.S.C. 6295(o)(1))
    Commenters argued that the rule is an attempt to circumvent the 
federal standards in EPCA. (Save Water, No. 0031; Fisseler, No. 0032; 
Northwest Power and Conservation Council (``NPCC''), No. 0060 at p. 2) 
Further, commenters stated that the proposal is a violation of the 
anti-backsliding provision. (ASAP, No. 0086 at p. 5: PIRG, No. 0082 at 
p. 9; Davis, No. 0064 at p. 1) Los Angeles Department of Water and 
Power (``LADWP'') claimed that the proposed definitions violate the 
anti-backsliding provision because they will allow for both increased 
water and energy usage due to the augmented water consumption, higher 
operational energy demands, and diminished water conservation. (LADWP, 
No. 0066 at p. 3)
    Commenters stated that EPCA's anti-backsliding provision prohibits 
DOE from prescribing any amended standard which increases the maximum 
allowable . . . water use. (CEC, No. 0083 at p. 6; the Joint 
Commenters, No. 0085 at p. 1; PIRG, No. 0082 at p. 9) CEC argued that 
the anti-backsliding clause must be read to restrict DOE's subsequent 
discretionary ability to weaken that standard at any point thereafter. 
(CEC, No. 0083 at p. 6) The Joint Commenters noted that as the Congress 
that enacted the provision explained, this rigidity serves an important 
purpose: ``to maintain a climate of relative stability with respect to 
future planning by all interested parties.'' (Joint Commenters, No. 
0085 at p. 1 (citing H.R. Rep. No. 100-11 (Mar. 3, 1987) at 22))
    Commenters argued that it is not plausible that Congress prohibited 
DOE from prescribing increases in the maximum allowable water use of a 
showerhead, while also permitting DOE to increase water use by 
redefining a term, citing NRDC v.Abraham, 355 F.3d 179, 197 (2d Cir. 
2004). (Joint Commenters, No. 0085 at p. 2, PIRG, No. 0082 at p. 9) The 
commenters argued that EPCA's anti-backsliding provision must be 
interpreted in light of ``the appliance program's goal of steadily 
increasing the energy efficiency of covered products'' and Congress' 
intent to provide a ``sense of certainty on the part of manufacturers 
as to the required energy efficiency standards.'' Abraham, 355 F.3d at 
197. In addition, reading

[[Page 81349]]

EPCA this way would ``effectively render'' the anti-backsliding 
provision ``inoperative'' or a ``nullity.'' (PIRG, No. 0082 at p. 9 
citing Abraham, 355 F.3d at 197; Joint Commenters, No. 0085 at pp. 1-3 
citing Abraham, 355 F.3d at 197 and referencing Hearth, Patio & 
Barbecue Association v. DOE, 706 F.3d 499, 508 (D.C. Cir. 2013) 
(observing that changes to covered product definitions can 
``effectuate[ ] [a] workaround of statutory limits'' applicable to 
energy conservation standards under EPCA'').
    EPCA's anti-backsliding provision prohibits DOE from prescribing 
``any amended standard which increases the maximum allowable energy 
use, or, in the case of showerheads, faucets, water closets, or 
urinals, water use, or decreases the minimum required energy 
efficiency, of a covered product.'' (42 U.S.C. 6295(o)(1)) In this 
rulemaking, DOE is not amending the current energy conservation 
standard. If DOE were to do so, those standards would be established 
through DOE's standards-setting rulemaking process, which is governed 
by the Department's Process Rule and includes multiple distinct steps 
and includes opportunities for public comment. In the absence of such a 
rulemaking, neither DOE nor commenters can conclude that the revised 
definitions amend the standards currently applicable to showerheads. To 
argue otherwise, as commenters do, would mean that DOE undertook an 
unauthorized standards rulemaking in 2013.
    DOE disagrees with commenters' reliance on NRDC v. Abraham to 
support their anti-backsliding argument. In that case, the Second 
Circuit held that the publication date in the Federal Register of a 
final rule establishing an energy conservation standard operates as the 
point at which EPCA's anti-backsliding provision applies to a new or 
amended standard. 355 F.3d at 196. This case is inapplicable to the 
present rulemaking because DOE has not yet published a final rule 
amending standards for showerheads. In this rulemaking, DOE is only 
finalizing definitions for showerheads.\6\
---------------------------------------------------------------------------

    \6\ DOE finds the Hearth, Patio & Barbecue Association decision 
inapplicable to this rulemaking. In that case, the court determined 
that DOE could not simply define direct heating equipment to include 
decorative fireplaces, because Congress did not intend for 
decorative fireplaces to be considered direct heating equipment. The 
court instead determined that DOE should have issued a coverage 
determination, with the attendant required findings, prior to 
establishing standards for decorative fireplaces. In this rule, 
there is no suggestion that a coverage determination is necessary or 
appropriate. That is, the statute clearly applies to showerheads. 
Instead, DOE is revising its regulatory definition consistent with 
statutory intent such that each showerhead in a multi-headed product 
must comply with the 2.5 gpm standard established in EPCA.
---------------------------------------------------------------------------

    The Joint Commenters also claimed that other provisions of EPCA 
confirm the applicability of the statute's anti-backsliding provision 
to actions that alter regulatory definitions in ways that weaken the 
standards applicable to a covered product. EPCA broadly authorizes DOE 
to classify additional consumer products and commercial equipment as 
covered products and equipment subject to energy conservation 
standards. (42 U.S.C. 6292(a)(20), (b), 42 U.S.C. 6311(1)(L), 42 U.S.C. 
6312(b)) In contrast, the statute confers no similarly broad authority 
to terminate the coverage of a product and allows products to be 
exempted from standards only under specified circumstances. The handful 
of EPCA provisions explicitly authorizing DOE actions that weaken 
energy conservation standards are the exceptions that prove the rule: 
the anti-backsliding provision blocks those changes to product 
definitions that would result in weaker standards. (Joint Commenters, 
No. 0085 at pp. 2-3)
    DOE disagrees with the Joint Commenters' assertion that EPCA's 
anti-backsliding provision applies to changes to a definition. As 
discussed above, the language in 42 U.S.C. 6295(o)(1) prohibits DOE 
from prescribing an amended standard that results in a reduction in 
energy efficiency or increase in energy use. That provision does not 
limit DOE's discretion to amend definitions for covered products.
    PIRG contended that in recent briefing on the standards for general 
service lamps, DOE asserted that it could undo or revise a prior 
standard, despite the anti-backsliding rule, if the previous standard 
was incorrect. The Second Circuit has already rejected that proposition 
with respect to EPCA itself, NRDC v. Abraham, 355 F.3d 179 (2d Cir. 
2004). Besides, DOE has not even suggested that its existing 
interpretation of ``showerhead'' is incorrect. A shift in policy 
preference like that is certainly not an exception to the anti-
backsliding rule. Nor can an error in the reasoning for a prior 
regulation, if there was one, exempt it from the anti-backsliding 
provision. According to the commenter, DOE purports to frame its 
revision as part of a test procedure rather than a standard. In fact, 
the regulatory definition at issue applies across the showerhead 
regulations--to the standard as well as to the test procedures. 10 CFR 
430.2. Moreover, even if DOE were only amending a test procedure, it 
would still be engaged in impermissible backsliding. (PIRG, No. 0082 at 
pp. 9-10 (citing 42 U.S.C. 6293(e))
    DOE is not amending the current energy conservation standards in 
this rulemaking, nor has DOE asserted that the current standard is 
incorrect. The adoption of new or revised definitions for a product, 
including showerheads, does not implicate the anti-backsliding 
provision because it is not a standard nor does it alter the current 
standards. Further as discussed previously, DOE developed this 
rulemaking as a result of ambiguity regarding what products fall under 
the definition of ``showerhead.'' Accordingly, the revised definition 
will provide clarity regarding what products qualify as a showerhead. 
DOE agrees that the definition of ``showerhead'' applies to test 
procedures, standards, and labeling.
    The August 2020 NOPR included references to the test procedure for 
showerheads because DOE had proposed clarifications to the test 
procedure. DOE has decided not to finalize its test procedure 
clarification proposal.

C. Definition of Body Spray and Safety Shower Showerhead

    In the proposed rule, DOE proposed to define the term ``body 
spray'' separately from the definition of showerhead, defining ``body 
spray'' as a ``shower device for spraying onto a bather other than from 
the overhead position.'' 85 FR 42984, 49291. DOE also proposed to adopt 
the ANSI standard as the definition of ``safety shower showerhead'': 
``a device specifically designed and intended to deliver a flushing 
fluid in sufficient volume to cause that fluid to cascade over the 
entire body.'' 85 FR 49284, 49292. DOE received general comments 
opposing the proposed definitions that would remove ``body spray'' and 
``safety shower showerhead'' from the definition of showerhead, such 
that energy conservation standards do not apply to body sprays and 
safety shower showerheads. (Hare, No. 0012; Cohen, No. 0036; City of 
Santa Rosa Water Department (``Santa Rosa Water''), No. 0037 at p. 2; 
BAWSCA, No. 0050 at p. 2; WVWD, No. 0051 at p. 1; City of Tucson, No. 
0052 at p. 1; Western Municipal Water District, No. 0054; City of 
Sacramento Department of Utilities, No. 0055 at p. 2)
    DOE notes that the current definition of ``showerhead'' in 42 
U.S.C. 6291(31)(D) and 10 CFR 430.2 both exempt ``safety shower 
showerheads'' from the definition of showerheads. This rulemaking does 
not alter the current exception of ``safety shower showerheads'' from 
the definition of a

[[Page 81350]]

``showerhead''. Instead, DOE defines what products are considered 
safety shower showerheads. In regards to ``body sprays'', as discussed 
below, this rulemaking clarifies ambiguity resulting about whether 
``body sprays'' fall under the definition of showerhead. It is 
important to note that DOE has not changed the current water 
conservation standard in this rulemaking.
1. Body Spray
    In the proposed rule, DOE proposed to define the term ``body 
spray'' separately from the definition of showerhead, defining ``body 
spray'' as a ``shower device for spraying onto a bather other than from 
the overhead position.'' 85 FR 42984, 49291. Thus, DOE's regulations 
would make clear that body sprays are not covered by DOE's test 
procedure or the energy conservation standard applicable to 
showerheads, consistent with DOE's proposed interpretation of the term 
``showerhead.'' Id.
    Consumer Research supported the proposal, stating that the term 
``body spray'' is left undefined in the current rule, leaving it 
unclear whether body sprays are subject to the 2.5 gpm limit. The rule 
remedies this situation, again adopting language consistent with the 
current ASME standard, ASME A112.18.1-2018, and makes it clear that 
body sprays are not showerheads. (Consumer Research, No. 0039 at pp. 3-
4)
    DOE has concluded that the definition of showerhead in the October 
2013 Final Rule did not specifically include or exclude body sprays. 
DOE agrees that this omission may have introduced uncertainty for 
regulated parties and that it is appropriate to clarify that body 
sprays are not showerheads.
    Commenters also raised concerns that the proposed rulemaking will 
result in wasteful and unnecessary ``deluge'' showers, which will also 
consume much more hot water increasing energy consumption. (BAWSCA, No. 
0050 at p. 3; WVWD, No. 0051 at p. 2; AWE, et. al, No. 0079 at p. 2) 
AWE argued that U.S. plumbing codes require body sprays to comply with 
the current ASME A112.18.1/CSA B125.1 standard, which requires body 
sprays to flow no more than 2.5 gpm. If DOE exempts body sprays instead 
of aligning the definition with that in the industry standard, 
consumers will be able to purchase higher flow body sprays, but they 
will not be able to legally install them. (AWE, et al., No. 0079 at pp. 
2-3) Commenters stated that under the proposal, body sprays would not 
be covered under DOE's test procedure or the energy conservation 
standard applicable to showerheads, which would allow body sprays to be 
developed with no limits on flow rate. (NPCC, No. 0060 at p. 2; Santa 
Clara Valley Water District (``Valley Water''), No. 0076 at p. 1)
    CEC also raised concerns that DOE's proposed definition for body 
sprays relies solely on manufacturer intent and consumer installation 
decision, rather than discernable technical differences between the 
products. CEC argued that the proposed definition is overly broad and 
this ambiguity is compounded by the phrase defining showerhead as being 
``typically from an overhead position.'' The word ``typically'' is not 
specific and inserts ambiguity and discretion into DOE's regulation. 
Because the definitions together are fundamentally subjective, 
excluding body sprays and adopting the ASME definition for them creates 
a loophole that could be used to circumvent Congress's maximum water 
flow of 2.5 gpm for any showerhead. (CEC, No. 0083 at p. 3)
    The CA IOUs argued that in their analysis the marketplace does not 
clearly distinguish stand-alone body sprays from conventional 
showerheads. (CA IOUs, No. 0084 at p. 3) The CA IOUs also conducted a 
review of retailer websites that indicated that shower units with body 
spray capability are generally marketed or sold as combination shower 
systems or shower panels with an overhead showerhead component. Without 
a reliable way to distinguish stand-alone body sprays from other 
showerheads, retailers, consumers, and test labs will have no way to 
determine if a product is a body spray and exempt from current water 
conservation standards. The CA IOUs argue that industry considers body 
sprays a form of showerhead, and thus that action that exempts body 
sprays will result in backsliding. (CA IOUS, No. 0084 at pp. 4-5) The 
CA IOUs also highlight the WELS, WaterSense, EPA-2018, NCC, and EU 
standards to discuss how 3 of the 5 standards do not have an 
orientation requirement for showerheads and that 4 of the 5 standards 
treat multi-spray products and body spray components similarly. (CA 
IOUs, No. 0084 at p. 12)
    DOE has determined that leaving the scope of products not subject 
to EPCA's energy conservation standard undefined, and potentially 
subjecting manufacturers of body sprays to DOE standards, causes more 
confusion than establishing a regulatory definition. In this 
rulemaking, DOE determined it was appropriate to clarify the existing 
ambiguity following the October 2013 Final Rule that did not include 
body sprays within the definition of ``showerhead,'' and also did not 
define what constituted a ``body spray''. This rulemaking clarifies the 
definitions of showerhead and body spray. DOE believes that defining 
what constitutes a ``body spray'' will help to distinguish ``body 
sprays'' from showerheads. Further, CEC and the CA IOUs raised concern 
about how consumers may install body sprays. (CEC, No. 0083 at p.3; CA 
IOUs, No. 0084 at p.12) Under EPCA, DOE does not have the authority to 
regulate where a consumer locates a showerhead after purchase. DOE 
notes its final rule does not affect any existing building code 
requirements, but emphasizes that neither its current regulation nor 
this final rule include body sprays as showerheads, and DOE recognizes 
the importance of clarity with regard to what products manufacturers 
must certify to DOE to demonstrate standards compliance.
2. Safety Shower Showerhead
    DOE also proposed to adopt the ANSI standard as the definition of 
``safety shower showerhead'': ``a device specifically designed and 
intended to deliver a flushing fluid in sufficient volume to cause that 
fluid to cascade over the entire body.'' 85 FR 49284, 49292. In DOE's 
October 2013 final rule establishing the current definition of 
``showerhead'', DOE declined to define the term ``safety shower 
showerhead,'' which meant that the class of showerheads that EPCA 
excluded from standards was undefined and subject to DOE's discretion 
as to what was considered a safety shower showerhead. DOE noted in the 
October 2013 final rule that ANSI standard Z358.1, ``Emergency Eyewash 
and Shower Equipment'', 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.'' 78 FR 62970, 62974; Oct. 23, 2013. Commenters, including NSF 
and PMI, supported inclusion of the definition of safety shower 
showerhead consistent with the requirements of ANSI standard Z358.1. At 
the time, DOE declined to adopt this definition, stating that DOE could 
not identify a definition that would clearly distinguish these products 
from showerheads covered under EPCA and that adopting an unclear 
definition would cause additional confusion. Id. Upon further 
reflection, DOE is of the view that leaving the scope of products not 
subject to EPCA's energy conservation standards undefined, and 
potentially subjecting manufacturers of safety shower showerheads to 
DOE standards

[[Page 81351]]

when EPCA specifically excluded them from coverage, causes confusion 
and is inappropriate. What is meant by a ``safety shower showerhead'' 
or emergency shower is understood in the regulated industry, and DOE 
believes that it is unlikely that manufacturers of showerheads intended 
for use by residential consumers would design a showerhead to meet the 
specifications of the ANSI standard to avoid compliance with DOE 
standards. In this final rule, DOE is incorporating by reference the 
definition of safety shower showerhead from American National Standards 
Institute/International Safety Equipment Association (``ANSI/ISEA'') 
Z358.1-2014: ``a showerhead that is designed to meet the requirements 
of ANSI Standard Z358.1.''
    Commenters proposed that DOE define safety shower showerheads 
according to ANSI Z358.1. (CA IOUs, Public Meeting Transcript at pp. 
33-34; ASAP, No. 0086 at p.6; ASAP, Public Meeting Transcript at p. 24; 
CA IOUs, No. 0084 at pp. 12-13) ASAP asserted that the proposed 
definition of ``safety shower showerhead'' is too broad and that many 
showerheads sold for bathing could be viewed as meeting this 
definition. (ASAP, No. 0086 at p. 6) Specifically, the commenters 
proposed that DOE adopt the full definition of safety shower 
showerheads from ANSI Z-358.1-2014 including definitions for terms used 
in the emergency shower definition and criteria related to flow rate, 
pattern, fluid temperature, and installation. (CA IOUs, Public Meeting 
Transcript at pp. 33-34; CA IOUs, No. 0084 at pp. 12-13; ASAP, No. 0086 
at p. 6)
    DOE agrees with the commenters that the proposed definition is 
overly broad and does not provide clarity as to what the specific terms 
in the ``safety shower showerhead'' definition mean. In the October 
2013 Final Rule, DOE declined to adopt ANSI definition of ``emergency 
shower'' as the definition for ``safety shower showerhead'' because DOE 
could not identify a definition that would clearly distinguish these 
products from showerheads covered under EPCA and that adopting an 
unclear definition would cause additional confusion. 78 FR 62970, 
62974. The adoption of the ANSI definition of ``emergency shower'' by 
itself, as proposed in August 2020 NOPR, does not clearly explain what 
differentiates a ``safety shower showerhead'' from a ``showerhead.'' 
Accordingly, DOE is defining ``safety shower showerhead'' to mean a 
showerhead designed to meet the requirements of ANSI/ISEA Z358.1 
(incorporated by reference, see Sec.  430.3). This standard sets forth 
specific performance criteria for emergency shower and would require 
that ``safety shower showerheads'': (1) Be capable of delivering 
flushing fluid at a minimum of 75.7 liters per minute (or 20 gpm) for a 
minimum of 15 minutes; (2) have a spray pattern with a minimum diameter 
of 50.8 centimeters (cm) (or 20 in.) at a height of 153.4 cm (or 60 
in.) above the surface on which the user standards, and the center of 
the spray pattern shall be located at least 40.6 cm (or 16 in.) from 
any obstruction and that the flushing fluid shall be substantially 
dispersed throughout the pattern; (3) deliver tepid flushing fluid, 
where ``tepid'' is defined as a ``flushing fluid temperature conducive 
to promoting a minimum 15-minute irrigation period.'' (a suitable range 
is 16 [deg]C to 38 [deg]C (60 [deg]F to 100 [deg]F)); (4) be located in 
an area identified with a highly visible sign positioned so the sign 
shall be visible within the area served by the emergency shower; and 
(5) be operable with a valve that can be opened in under one second and 
remained open without user intervention for the duration of a flush.\7\ 
The inclusion of the related definitions and performance criteria in 
the definition of ``safety shower showerhead'' addresses the concerns 
noted by commenters and clearly distinguishes a ``showerhead'' from a 
``safety shower showerhead.''
---------------------------------------------------------------------------

    \7\ ANSI/ISEA Standard Z358.1-2014, American National Standard 
for Emergency Eyewash and Shower Equipment.
---------------------------------------------------------------------------

D. Testing Requirements

    In the August 2020 NOPR, DOE proposed to amend the testing 
provision in appendix S to subpart B of 10 CFR part 430 to address the 
testing of a single showerhead in a product with multiple showerheads. 
DOE proposed that a measurement would be required for only one 
showerhead when all showerheads in the product are identical. If the 
showerheads in such a product are not identical, only the showerhead 
with the maximum water flow would need to be tested to determine 
compliance with the 2.5 gpm standard. Additionally, DOE proposed to 
specify that where it is not possible to turn on only the showerhead 
being testing, testing would be performed with all showerheads flowing 
at the maximum rate. Measurement would be taken of only the showerhead 
under test. 85 FR 49284, 49292. In this final rule, DOE is not 
finalizing the proposed testing clarifications. Instead, as noted 
previously, DOE emphasizes in this final rule that the existing test 
procedure remains applicable for purposes of measuring the water use of 
a showerhead as defined in this final rule. It would be speculative for 
DOE to determine what products manufacturers may choose to produce 
subsequent to DOE's revision of its regulatory definition of 
showerhead. If issues arise where the existing test procedure does not 
produce a representative measurement of the water use of a particular 
showerhead product, the manufacturer can seek a waiver from DOE 
pursuant to DOE regulations at 10 CFR 430.27. DOE also notes the 
general requirement in EPCA for DOE to consider on a periodic basis 
whether test procedures for a covered product should be amended. See 42 
U.S.C. 6293. As always, DOE welcomes input from interested parties 
regarding testing methodology during this required review.
    DOE also received comments arguing that the proposal failed to 
define what constitutes a representative average use cycle for 
showerheads. (CEC, No. 0083 at pp. 4-5; CA IOUs, No. 0084 at p. 8, 
ASAP, No. 0086 at p. 5) CEC argued that without determining the 
representative average use cycle, the average use cycle or period of 
use of a multi-nozzle showerhead would reasonably include use of all 
the available nozzles. (CEC, No. 0083 at p. 5) The CA IOUs asserted 
that the proposed approach would on have one spray component turned on 
for testing, but that the expected average use of multi-spray component 
showerhead accessories is to maximize the number of spray components 
operating. (CA IOUs, No. 0084 at p. 8) Commenters also requested DOE 
provide data to demonstrate the representative average use of the 
multi-spray showerhead accessories. (CA IOUs, No. 0084 at p. 8; CEC, 
No. 0083 at p. 5) Serratos stated that multiple showerheads or body 
shower heads should not be exempt from the existing testing 
requirements. A test that would only test one of the showerheads in a 
multiple head shower would not be an accurate representation of total 
water use. (Serratos, No. 0041) Klein stated that the understanding of 
testing organizations is that you test everything that comes out of a 
showerhead at one time, regardless of the number of heads. (Klein, 
Public Meeting Transcript at p. 39) DOE is not finalizing the proposed 
clarifications to the test procedure. Instead, DOE clarifies in this 
final rule that the existing test procedure remains applicable for 
measuring the water use of a showerhead as defined in this final rule.
    Commenters noted the impact of water pressure on the performance of 
showerheads. (Gassaway, No. 0009;

[[Page 81352]]

Klein, No. 0063 at p. 5; Consumer Research, No. 0039 at p. 3; Klein, 
Public Meeting Transcript at p. 26) Commenters suggested that the 
testing conditions clarify the water pressure used for testing as water 
pressure, which can fluctuate daily as is impacted by factors including 
the proximity to the water supply and the water quality, and impacts 
the flow rate from the showerhead. (Gassaway, No. 0009; Consumer 
Research, No. 0039 at p. 3) A commenter also highlighted that the use 
of a pressure compensating flow regulator in a majority of showerhead 
products sold in the United States such that the flow rate remains 
almost the same over a wide range of operating pressures. (Klein, No. 
0063 at p. 5; Klein, Public Meeting Transcript at p. 27)
    Commenters noted that test labs interpret the ASME 2018 standard to 
require that a showering product, regardless of the number of spray 
heads, be tested for performance in each mode of operation. (ASAP, No. 
0086 at p. 4; Joint Commenters, No. 0085 at p. 3; CA IOUs, No. 0084 at 
pp. 2-3) Commenters also highlighted that stakeholders appeared to 
agree in comments made at the public webinar hearing. (ASAP, No. 0086 
at p. 4; Joint Commenters, No. 0085 at p. 3) DOE is not finalizing the 
proposed test procedure clarification. Instead, as noted previously, 
DOE clarifies in this final rule that the existing test procedure 
remains applicable for measuring the water use of a showerhead as 
defined in this final rule. If issues arise where the existing test 
procedure does not produce a representative measurement of the water 
use of a particular showerhead product, the manufacturer can seek a 
waiver from DOE pursuant to DOE regulations at 10 CFR 430.27.

E. Water Conservation

    Numerous commenters, including a comment with 10,184 signatures, 
raised the importance of water conservation and protecting the 
environment. (Environment America, No. 0069 at p.1; Peltzman, No. 0006; 
White, No. 0013; Manduca, No. 0019; Kelley, No. 0023; Huggins, No. 
0077; Baker, No. 0078; Rivet, No. 0003; Save Water, No. 0031; 
Shojinaga, No. 0015) Some commenters specifically highlighted the 
impact the water efficiency requirements in EPAct 1992 have had in 
reducing household water use. (Ruff, No. 0010; Sheegog, No. 0014 at p. 
1; Hamilton, No. 0028; Cohen, No. 0036; BAWSCA, No. 0050 at p. 2; City 
of Sacramento Department of Utilities, No. 0055 at p. 3)
    DOE also received numerous comments discussing how the proposal 
will waste water and energy and raise greenhouse gases. (Woodroffe, No. 
0025; Anonymous, No. 0026; Cyra-Korsgaard, No. 0046; Goodwin, No. 0042; 
Gooch, No. 0043) One commenters stated that the proposal harms human 
health by wasting our most precious natural resource. (Anonymous, No. 
0022) Commenters also focused on how conservation of treated drinking 
water and reducing the amount of domestic wastewater routed to sewage 
treatment plants is important. (Fisseler, No. 0032; Anonymous, No. 
0049) Klein stated that assuming 200 million people shower daily, there 
is approximately 160 million kilowatt hours per year of water and 
wastewater treatment, which could increase if homes are using 
showerheads with more than one showerhead. (Klein, Public Meeting 
Transcript at p. 40) LADWP stated that to go backward on water 
conservation efforts would compromise the achievements that have been 
attained thus far and negatively affect economic growth and quality of 
life. (LADWP, No. 0066 at p. 2)
    Commenters also provided estimates of water and energy savings. 
(AWE, et al., No. 0079 at p. 4; BAWSCA, No. 0050 at p. 4; WVWD, No. 
0051 at p. 3) Commenters estimated that in 10 years, the savings for 
2.5 gpm showerheads at the federal standard alone accumulate to the 
equivalent of supplying 1 million homes with water and 670,000 homes 
with energy. (AWE, et al., No. 0079 at p. 4; BAWSCA, No. 0050 at p. 4; 
WVWD, No. 0051 at p. 3; Davis, No. 0064) The Texas Water Development 
Board and the City of Sacramento also outlined the impact that water 
conservation standards, including those for showerheads, have had on 
reducing municipal water demands and treatment chemical usage. (Texas 
Water Development Board, No. 0074 at p. 1; City of Sacramento 
Department of Utilities, No. 0055 at pp.2-3) Commenters noted that 
federal water efficiency standards assist states and counties in 
implementing their water conservation programs and meeting water use 
efficiency and water conservation goals. The proposed changes threaten 
to undo local and state investments in these programs, which has 
ensured the efficient use of water and potentially forcing water 
utilities to meet future water demands through alternative water supply 
projects. (Wisconsin Department of Natural Resources, No. 0038; Broward 
County, No. 0081)
    Numerous commenters also highlighted the ongoing water crises and 
droughts faced by states around the country and the resulting need for 
water conservation. (Anonymous, No. 0070; eb1mom, No. 0002; Fetting, 
No. 0004; Anonymous, No. 0022; Interested Citizen, No. 0005; Shepard, 
No. 0020; Shaw, No. 0059; Wargo, No. 0007; Hall, No. 0048; Moir, No. 
0021; Lish, No. 0057; Santa Rosa Water, No. 0037 at p. 1, California 
State Water Resources Control Board (``State Water Board''), No. 0045 
at p. 2; Ruff, No. 0010; Cohen, No. 0036; Godwin, No. 0042; Gooch, No. 
0043; CA IOUs, Public Meeting Transcript at p. 12) Commenters noted 
that 40 to 50 states are confronting water shortages, according to a 
United States Government Accountability Office Report. (BAWSCA, No. 
0050 at p. 3; WVWD, No. 0051 at p. 2; AWE, et al., No. 0079 at p. 3; 
Valley Water, No. 0076 at p. 1)
    Numerous commenters also stated that the proposal will increase 
water and energy consumption and lead to higher utility bills for 
consumers. (CFA, No. 0029; CFA, Public Meeting Transcript at p. 14; 
Hall, No. 0048; Green Builder Coalition, Public Meeting Transcript at 
p. 35; Public Service Commission of Wisconsin (``PSC of Wisconsin''), 
No. 0061 at p. 2; Santa Rosa Water, No. 0037 at p. 2; LADWP, No. 0066 
at 3) The NPCC stated that the impacts of this proposal could include 
increased energy consumption and water use by the consumer, decreased 
utility by the consumer, increased burden and cost on the water 
utility, increased burden and cost on water treatment facilities, and 
possible changes to plumbing, and needs for larger water heater storage 
tanks. (NPCC, No. 0060 at p. 2) The IAPMO noted that high flow 
showerhead devices can also deplete hot water from tank type water 
heaters in a very short period of time, potentially causing accidents 
when hot water runs out. (IAPMO, No. 0087 at p. 3) Klein stated that 
residential water heaters typically hold 40-50 gallons and that 
approximately 70% of the volume can be used during a long event or a 
series of events before the shower becomes cold. (Klein, No. 0063 at p. 
6)
    Commenters stated that the proposal will lead to increased water 
use. (Fisseler, No. 0032) Klein estimated that allowing the output of 
two headed showerheads to be 5.0 gpm would increase hot water use per 
shower by 5-20%, depending on the rate of adoption. For 3-headed 
showers, the increase would be 10-40% per shower depending on the rate 
of adoption. (Klein, No. 0063 at p. 13) CA IOUs relied on the analysis 
by Gary Klein and Associates, Inc. suggesting that even limited 
adoption of multi-spray component products will significantly increase 
national water use and hot

[[Page 81353]]

water use. For example, installing a three-spray component product 
increases total hot water use, normalized per shower, from 34 gallons 
(gal) to 61.2 gal, an increase of 80%. If 10% of showerheads were 
converted to three-spray component products, national residential hot 
water use could increase by as much as 8%. (CA IOUs, No. 0084 at pp. 5-
6) ASAP, relying on Klein's analysis, stated that assuming a 5% 
adoption rate for showers using 7.5 gpm, the increase in hot water 
nationally would be 120 billion gallons per year with cold water usage 
increasing as well. (ASAP, No. 0086 at pp. 4-5; Klein, No. 0063 at p. 
13) Other commenters suggest that the national water increase could be 
as high as 161 billion gallons in a single year. (Valley Water, No. 
0076; AWE, et al., No. 0079 at p. 2; BAWSCA, No. 0050 at p. 3, WVWD, 
No. 0051 at p. 2)
    The PSC of Wisconsin stated that showers account for 20% of indoor 
water use in the average American home, and homes with showerheads 
meeting the current standard use about 20.7 gallons per day (gpd), 
whereas homes using showerheads not meeting the current standard use 
approximately 34.8 gpd, a nearly 70% increase. A residential customer 
with average water use that installs a showerhead meeting the revised 
definition could potentially experience a water bill increase of $36 
per year, which does not include any additional utility capital and 
operating costs that may result from increased demand on the water 
system if a significant portion of the customer base installs new 
showerheads with the higher flow rate. (PSC of Wisconsin, No. 0061 at 
p. 1)
    Commenters also stated that the efficient plumbing standards and 
conservation programs lower costs for customers, allowing communities 
to delay or avoid developing new supplies and treatment capacity. 
(State Water Board, No. 0045 at p. 2; Anonymous, No. 0049; AWE, et al., 
No. 0079 at p. 3; PSC of Wisconsin, No. 0061 at p. 2; ASAP, No. 0086 at 
pp. 4-5; Green Builder Coalition, Public Meeting Transcript at p. 35; 
City of Tucson, No. 0053 at p. 2; Texas Water Development Board, No. 
0074 at p. 2) Commenters noted that increasing the consumption of 
treated drinking water through this proposal will increase water 
utility costs for providing new supplies--and therefore increase 
customer bills, as those costs for procuring needed new supplies are 
then passed on to the customers. (BAWSCA, No. 0050 at pp. 3-4, WVWD, 
No. 0051 at p. 2) Commenters suggested that each additional 1 gpm of 
shower flow on a national basis could cost $1.14 billion. (Davis, No. 
0064; Valley Water, No. 0076 at p. 1; BAWSCA, No. 0050 at p. 4; WVWD, 
No. 0051 at p. 3; AWE, et al., No. 0079 at p. 3)
    One commenter stated that the inability of updated showerheads to 
allow more water during use is frustrating. (Goehring, No. 0062) A 
commenter sated that the free market has improved the water use/waste 
issue to the point where efficiency has succeeded. (Chick, No. 0047) 
DOE also received a comment suggesting that there is no need for water 
restrictions for homes on well water and septic systems as all water 
used returns to the grounds. (Bandy, No. 0030) Gurley claimed that 
DOE's determination that this proposal is not a significant energy 
action is incorrect as it ignores the fuels required to condition the 
additional gallons of water. (Gurley, No. 0035)
    DOE recognizes the importance of water conservation and water 
savings around the country, especially in those communities facing 
droughts and water scarcity. As evidenced by the water conservation 
information provided by commenters, consumers have chosen to install 
efficient showerheads in their residences, resulting in significant 
reduction in water and energy consumption. As DOE has consistently 
stated in this rulemaking, this rulemaking does nothing to alter the 
current energy conservation standard for showerheads and is therefore 
not a significant energy action (see also Section IV.L). Instead, it 
revises and add definitions related to showerheads to provide clarity 
in the marketplace and preserve consumer utility. Further, while water 
conservation is obviously a purpose of EPCA, the definitional changes 
follow congressional reliance on the ASME standard.

F. Additional Issues

1. State Regulation of Showerheads
    Commenters also discussed the regulation of showerheads by states. 
Some commenters argued that the redefinition would create confusion and 
uncertainty because some states already have more restrictive standards 
than the federal standard of 2.5 gpm for showerhead, and that the 
intention of EPAct 1992 was to establish a uniform regulation for all 
states. (BAWSCA, No. 0050 at p. 3; Valley Water, No. 0076 at p.1: WVWD, 
No. 0051 at p.2; AWE, et al. No. 0079 at p.3) ASAP argued that it is 
likely that state regulation of showerheads and body sprays will 
proliferate in response to this proposal. (ASAP, Public Meeting 
Transcript at p. 11)
    LADWP noted concern that DOE's proposal would supersede measures 
adopted by the State of California, to regulate showerheads at a 
maximum flow rate of 1.8 gpm and that the proposal would allow high-
flow showerheads on online marketplaces. (LADWP, No. 0066 at p. 2) The 
State Water Board noted that some states already regulate showerheads 
and that California would not be affected because of existing CEC 
regulations on showerheads. (State Water Board, No. 0045 at pp. 1-2) 
Commenters noted that DOE waived preemption in 2010 and that the 
proposal would have no preemptive effect on states. (CEC, No. 0083 at 
p. 8; ASAP, Public Meeting Transcript at p. 11)
    As noted in the proposed rule, this rulemaking would not have 
substantial direct effect on the States. 85 FR 49284, 49295. On 
December 22, 2010, DOE issued a final rule waiving Federal preemption 
for energy conservation standards under 42 U.S.C. 6297(c) with respect 
to any State regulation concerning the water use or water efficiency of 
showerheads if such State regulation is: more stringent than Federal 
regulation concerning the water use or water efficiency for the same 
type or class of product; and applicable to any sale or installation of 
all products in that particular type or class. 75 FR 80289, 80289. 
Accordingly, states may currently develop more stringent regulations 
that the federal standard and this proposal does not change that 
ability. As noted by some commenters, this rulemaking would not 
supersede state regulation of water use or water efficiency of 
showerheads that are more stringent than the Federal standard.
2. Procedural Comments
    Following publication of the NOPR, DOE received a request from PMI 
to extend the comment period by 30 days. (PMI, No. 0011) On August 31, 
2020, DOE announced the extension of the comment period by 30 days. 85 
FR 53707, 53707. On September 15, 2020, DOE received another request to 
extend the comment period to 90 to 120 days. (ASAP, AWE, ACEEE, CFA, 
NRDC, NEEA, No. 0040) DOE further extended the comment period by an 
additional 14 days for a total of 62 days. 85 FR 61653, 61653 (Sept. 
30, 2020).
    DOE received comments stating that this proposal violated DOE's 
Procedures for Use in New or Revised Energy Conservation Standards and 
Test Procedures for Consumer Products and Commercial/Industrial 
Equipment \8\

[[Page 81354]]

(``the Process Rule''). (ASAP, No. 0086 at p. 5; CA IOUS, No. 0084 at 
pp. 9-10; PIRG, No. 0082 at p. 14; CEC, No. 0083 at p. 2) The CA IOUs 
argued that DOE must follow the Process Rule guidelines for changing 
scope of coverage of water conservation standards. These commenters 
further stated that the Process Rule includes specific guidance 
regarding changing scope of coverage of existing standards including 
describing the maximum improvement in energy efficiency or maximum 
reduction in energy use that is technologically feasible and, if the 
proposed standards would not achieve these levels, the reasons for 
proposing different standards. Furthermore, these commenters assert 
that the Process Rule requires a public comment period for a change in 
scope of coverage of not less than 75 days. (CA IOUs, No. 0084 at p. 9)
---------------------------------------------------------------------------

    \8\ 85 FR 8626.
---------------------------------------------------------------------------

    In this rulemaking, DOE proposed to revise its definition of 
``showerhead'' and define the terms ``body spray'' and ``safety shower 
showerhead.'' EPCA provides DOE with the discretionary authority to 
classify additional types of consumer products as ``covered'' within 
the meaning of EPCA. (See 42 U.S.C. 6296(b) and 42 U.S.C. 6295(l)) This 
authority allows DOE to consider regulating additional products/
equipment that would further the goals of EPCA. Under the Process Rule, 
DOE is required to provide a minimum of a 60-day comment period 
following publication of a notice of proposed determination. To conduct 
a coverage determination, DOE must determine that the classifying the 
product as a covered product is necessary or appropriate to carry out 
the purpose of this chapter and the average annual per-household energy 
use of products of such type is likely to exceed 100 kilowatt-hours per 
year. (42 U.S.C. 6292(b)(1)) This rulemaking does not attempt to make 
either of these determinations; rather it defines showerhead and 
related terms to avoid confusion in the market. Accordingly, this 
proposal is not a coverage determination. 10 CFR part 430, subpart C, 
appendix A.
    Commenters also argued that DOE did not follow the Process Rule as 
it relates to requirements for amending a test procedure. (CA IOUs, No. 
0084 at p. 10; ASAP, Public Meeting Transcript at p. 38; PIRG, No. 0082 
at p. 14; CEC, No. 0083 at p. 2) Commenters stated that Process Rule 
requires an early assessment process, and DOE has not provided it in 
this rulemaking. (ASAP, Public Meeting Transcript at p. 38; CA IOUs, 
No. 0084 at p. 10; CEC, No. 0083 at p. 2) PIRG argued that DOE promised 
that the comment period on a proposed rule would be at least 75 days. 
(PIRG, No. 0082 at p. 14)
    DOE has committed to following the Process Rule when amending a 
test procedure. DOE's proposal did not propose to amend the current 
test procedure for showerheads in any substantive fashion. Rather, the 
proposed rule was an attempt to provide clarification that DOE expected 
would be sought by regulated entities as to how the existing test 
procedure would apply to showerheads with multiple outlets. While DOE 
appreciates commenters' support for the recently revised Process Rule 
and seeking DOE's strict adherence thereto, to avoid any ambiguity 
regarding application of the Process Rule DOE is not finalizing the 
proposed test procedure clarifications, including the provisions 
specifying how to apply the test procedure if the showerheads in a 
multi-headed showerhead use different amounts of water. Instead, in 
this final rule, DOE emphasizes that the existing test procedure 
remains applicable for purposes of measuring the water use of a 
showerhead as defined in this final rule. It would be speculative for 
DOE to determine what products manufacturers may choose to produce 
subsequent to DOE's revision of its regulatory definition of 
showerhead. If, in the future, a manufacturer believes that the 
existing test procedure does not produce a representative measurement 
of the water use of a particular showerhead product, the manufacturer 
can consider seeking a waiver from DOE pursuant to DOE regulations at 
10 CFR 430.27.
    DOE also received also comments arguing that the public comment 
period should have been longer. AWE argued that despite separate 
extensions requested by stakeholders, the end result was still only a 
62-day public comment period. (AWE, No. 0080 at p. 1) Commenters stated 
that DOE published a NOPR without immediately announcing a required 
public hearing, and initially only provided 32 days for public comment, 
even though EPCA requires a comment period of ``not less than 60 
days.'' (CEC, No. 0083 at p. 2; CA IOUs, No. 0084 at p. 10) Valley 
Water stated that the proposed definition did not follow past DOE 
practices of allowing at least 60 days for public review. (Valley 
Water, No. 0076 at p. 1) ASAP further argued that DOE is statutorily 
required to provide a 60 day comment period and, under the Process 
Rule, DOE is required to provide 75 days. (ASAP, Public Meeting 
Transcript at p. 7)
    Further, at the webinar, CFA requested an extension of 90 days to 
allow DOE to provide a cost impact analysis and allow the public the 
opportunity to review this data. (CFA, Public Meeting Transcript at 
p.15) Commenters argued that given the magnitude of the potential 
impact, the proposed rulemaking should allow at least 90 days or more 
for public comment and review. (BAWSCA, No. 0050 at p. 3; WVWD, No. 
0051 at p. 2; AWE et. al, No. 0079 at p. 3) Commenters argued that DOE 
is not following its normal rulemaking process noting that DOE provided 
little notice for the public meeting. (ASAP, Public Meeting Transcript 
at p. 7; CA IOUs, No. 0084 at p. 10) Commenters stated the DOE did not 
follow typical procedure for pre-releasing rules. (ASAP, Public Meeting 
Transcript at p. 7; CA IOUS, No. 0084 at p.10)
    Similar to previous discussion, this proposal was not an amendment 
to the current showerhead test procedure; instead, it was a 
clarification. Even if this proposal were considered to be an amendment 
of the test procedure, under EPCA, DOE is required to provide a comment 
period of not less than 60 days for a new or amended test procedure. 
(42 U.S.C. 6293(a)(2)) Commenters had a total of 62 days to comment on 
the proposal exceeding the 60 minimum provided by EPCA. Finally, as 
mentioned before, DOE is not finalizing the proposed clarification to 
the showerhead test procedure. As stated previously, in this final 
rule, DOE emphasizes that the existing test procedure remains 
applicable for purposes of measuring the water use of a showerhead as 
defined in this final rule. If issues arise where the existing test 
procedure does not produce a representative measurement of the water 
use of a particular showerhead product, the manufacturer can seek a 
waiver from DOE pursuant to DOE regulations at 10 CFR 430.27.
3. Consumer Choice
    A commenter urged DOE to use latitude available under EPCA to 
minimize impacts on consumers and maximize choice as the energy posture 
of the country has changed since the enactment of EPCA. (Strauch, No. 
0067) Consumer Research stated that the current rule artificially 
limits both the number and types of available multiple showerhead 
products. This restriction on consumer choice is undesirable and 
contrary to Congressional intent. (Consumer Research, No. 0039 at p. 2) 
Commenters noted that EPCA prohibits DOE from establishing a new or 
amended standard under the authority of 42 U.S.C. 6295 if DOE finds 
that such a standard is likely to result in the

[[Page 81355]]

unavailability of performance characteristics, features, sizes, 
capacities, and volumes substantially similar to those available in the 
U.S. at the time of the finding. (Consumer Research, No. 0039 at p. 3; 
CEI, No. 0058 at p. 3-4) CEI also described another provision of EPCA 
outlining the process for setting a separate standard for a product 
subgroup, which instructs the Secretary that in making a determination 
under this paragraph concerning whether a performance-related feature 
justifies the establishment of a higher or lower standard, the 
Secretary shall consider such factors as the utility to the consumer of 
such a feature, and such other factors as the Secretary deems 
appropriate. (CEI, No. 0058 at p. 4) While multiple showerheads were 
not prohibited, the effects of the 2013 regulatory interpretation of 
the term ``showerhead'' was to substantially reduce the availability of 
such products on the market, contrary to the provisions of EPCA or the 
intent of EPCA, which was to protect the consumer from losing such 
choices. (Consumer Research, No. 0039 at pp. 2-3; CEI, No. 0058 at p. 
4) Commenters also argued that people should be free to use the 
showerhead and amount of water of their choosing. (Bell, No. 0016; 
Caspar, No. 0024)
    In response, DOE emphasizes that this rule complies with the 
congressional directive to preserve performance characteristics and 
features that were available on the market at the time DOE originally 
acted to essentially eliminate them. Further, this rulemaking allows 
manufacturers to continue innovating and provide consumers choice in 
the marketplace.
4. Cost Impact and Technical Analysis
    DOE received comments requesting that DOE complete a cost impact 
analysis of the proposal. (CFA, No. 0029; CFA, Public Meeting 
Transcript at pp. 14-15; BAWSCA, No. 0050 at p. 1; WVWD, No. 0051 at 
p.1; AWE, et al. No. 0079 at p. 2; Davis, No. 0064; Valley Water, No. 
0076 at p.2; Miulli, No. 0052 at p. 3; Shojinaga, No. 0015; NPCC, No. 
0060 at p. 2;) Cyra-Korsgaard argued that this rulemaking is not 
supported by facts. (Cyra-Korsgaard, No. 0046) A commenter asked if 
there should be a discussion of the amount of water used by these 
devices. (Wargo, No. 0007) CEC argues that DOE has not provided any 
data or analysis to show that the proposed amendments would be less 
burdensome for manufacturers and that the additional instructions in 
this proposal will be more burdensome than the existing test. (CEC, No. 
0083 at p. 5) Further, commenters stated that DOE has failed to provide 
any analysis of the impact of the proposed rule including the impacts 
on consumers, on water and wastewater utilities, on water supplies, on 
energy use, on the environment, on manufacturers of showerheads, and on 
the market. (ASAP, Public Meeting Transcript at pp. 9-10 ; ASAP, No. 
0086 at p. 4; NRDC, Public Meeting Transcript at p. 21; CA IOUs, No. 
0084 at p. 7; CA IOUs, Public Meeting Transcript at pp. 24- 25; PIRG, 
No. 0082 at p. 10-12)
    Commenters argued that in order to meet the requirements of 42 
U.S.C. 6295(o)(1) that the Secretary may not prescribe any amended 
standard which increases the maximum allowable energy use, or, in the 
case of showerheads . . . , water use, or decreases the minimum 
required energy efficiency, of a covered product rulemakings that amend 
a test procedure typically include analysis of the impacts of the 
changes to the test procedure on the conservation standard, a process 
commonly referred to as a ``crosswalk.'' (CA IOUs, No. 0084 at p. 9; 
PIRG, No. 0082 at p. 13) However, the CA IOUs argue that the proposed 
rule contains no assessment of the impact of the proposed test 
procedure amendment on standards for either body sprays or multi-spray 
component products. (CA IOUs, No. 0084 at p. 9) PIRG also argues that 
DOE's Process Rule \9\ also requires DOE to assess whether a proposed 
standard will result in ``significant savings'' of energy of water. 
More specifically, PIRG stated that even if the proposal were solely a 
revision to test procedures, DOE has not undertaken key assessments. It 
is required to evaluate whether the change in test procedures will 
change the measured water usage of products.\10\ (PIRG, No. 0082 at p. 
13)
---------------------------------------------------------------------------

    \9\ 10 CFR part 430, subpart C, appendix A.
    \10\ 42 U.S.C. 6293(3), (7)(B); 10 CFR part 430, subpart C, app. 
A.
---------------------------------------------------------------------------

    This rule does not amend the current energy conservation standards 
or test procedures for showerheads; rather, it defines terms related to 
showerheads to address existing ambiguity. Accordingly, the requirement 
of completing analyses for energy conservation standards under 42 
U.S.C. 6295(o)(1) are not required. Similarly, DOE is not required to 
conduct analyses regarding whether a test procedure is reasonably 
designed to produce results measuring water use or estimated annual 
operating costs during a representative average use cycle because DOE 
is not amending the current test procedure for showerheads. (See 42 
U.S.C. 6293 (a)(3), (a)(7)(B))
5. Adoption of Consensus Standards
    Consumer Research stated that the proposed rule returns the 
definition of showerhead to the intended definition in EPCA, which 
states that the test procedures for testing and measuring the water use 
of showerheads shall be ASME/ANSI standard A112.18.1M -1989. (Consumer 
Research, No. 0039 at p. 1) Other commenters supported aligning the 
definitions with the ASME A112.18.1-2018 standard. (IAMPO, No. 0087 at 
pp. 1-2; Kohler, No. 0075) IAPMO stated that all definitions pertaining 
to products regulated by Title III of EPCA should align with the 
definitions contained in products standards that are designated as 
American National Standards. (IAMPO, No. 0087 at pp. 1-2) DOE agrees 
that this rulemaking aligns the definition of showerhead with the 
definition in ASME as intended by Congress in EPCA.
    Commenters also recommends that DOE incorporate the definitions for 
``accessory'', ``body spray'', and ``safety shower showerhead'', 
contained in the current ASME A112.188.1. (IAPMO, No. 0087 at pp. 1-2; 
PMI, No. 0073 at pp. 2-4) CA IOUs stated that while they are supportive 
of reducing burdens on industry and confusion for consumers, they are 
concerned that the proposal misinterprets the 2018 ASME standard 
definition of ``showerhead'' by failing to consider the definition of 
the term ``accessory'' in the showerhead definition. (CA IOUs, No. 0084 
at p. 2; CA IOUs, Public Meeting Transcript at p. 34) Kohler noted that 
consistency between the industry and DOE reduces burden and increases 
efficiency in bringing products to market. Kohler expressed opposition 
to amending the test procedure for measuring the energy efficiency of 
shower heads, but supported test methods aligning with the most recent 
industry consensus standard for showerheads, ASME A112.18.1/CSA Bl 
25.1--2018. Deviating from the current requirements, industry standards 
as well as consumer trends, can create disruption not only in design 
and manufacturing, but also with supply chain and the end user. 
Additionally, prior to increasing or decreasing plumbing product now 
rates, research should be conducted to understand the impact of new 
capacity on our infrastructure, including wastewater systems. (Kohler, 
No. 0075).
    The American Supply Association (``ASA'') stated that the current 
test procedure is correct and consistent with

[[Page 81356]]

the ASME standard. Adopting the proposed rulemaking would create 
inconsistencies regarding testing of multi-head showerheads and body 
sprays and cause confusion in the market place. ASA recommended that 
DOE codify the 2011 Enforcement Guidance such that body sprays fall 
under the 2.5 gpm flow rate and ASME references should refer to the 
current edition of the ASME standard. ASA stated that there is no 
ambiguity in industry when following the consensus-based industry 
standards including definitions and test procedures. The plumbing 
industry has spent a significant amount of time and investment to 
develop products to comply with the ASME standard test procedure and 
the DOE's 2011 Enforcement Guidance and to change the test procedure 
now will lead to confusion and a competitive disadvantage for US 
manufacturers who comply with the current requirements. (ASA, No. 0068 
at pp. 1-2) PMI supports the current test procedure except that the 
reference should be updated to the latest edition. (PMI, No. 0073 at p. 
4) As discussed previously, DOE is not finalizing a proposed test 
procedure clarification at this time.
6. Other Comments
    Commenters argued that the proposal does not qualify for a 
categorical exclusion under the National Environmental Policy Act 
(NEPA), 42 U.S.C. 4321, et seq., as DOE failed to provide analysis of 
the environmental impacts. (BAWSCA, No. 0050 at p. 3; WVWD, No. 0051 at 
p. 2; AWE, et al., No. 0079 at p. 3; Davis, No. 0064; the Joint 
Commenters, No. 0085 at p. 4; AWE, No. 0080 at p. 2; ASAP, No. 0086 at 
p. 5; CEC, No. 0083 at p. 7) CEC also argued that the rule changes how 
DOE tests products currently subject to the standard and lead to 
increases in water and energy use. As such, categorical exclusion A5 is 
not applicable for this rulemaking. (CEC, No. 0083 at p. 7).
    DOE maintains that this rulemaking, once finalized, will only 
revise the definition of ``showerhead'' and define the terms ``body 
spray'' and ``safety shower showerhead.'' Further, DOE is not 
finalizing the proposed changes to the test procedure. Finalization of 
the rule will not result in adverse environmental impacts and is 
covered by Categorical Exclusion A5 under 10 CFR part 1021, subpart D. 
This categorical exclusion applies to rulemakings that interpret or 
amend an existing rule without changing the environmental effect of 
that rule. This rulemaking will not result in a change to the 
environmental effect of the existing showerhead standards.
    The Center for Biological Diversity argues that the proposed rule 
violates the Endangered Species Act. (Center for Biological Diversity, 
No. 0071 at pp. 2-4). This rulemaking only revises the definition of 
showerhead and defines ``body spray'' and ``safety shower showerhead''. 
It does not set a standard that has impacts on endangered or threatened 
species.
    Some commenters argued that the proposal will impact plumbing 
codes. (Gassaway, No. 0009; Malatesta, Public Meeting Transcript at p. 
27; Klein, Public Meeting Transcript at p. 30; IAMPO, No. 0087 at p. 2) 
Specifically, Klein stated that piping will need to get bigger as 
plumbing codes have limitations on the maximum velocity that's allowed 
in a certain sized pipe. (Klein, Public Meeting Transcript at pg. 30) 
The CA IOUs noted that new construction is built to meet minimum code 
requirements and these higher flow rate showerhead accessories come 
with a myriad of additional requirements. (CA IOUs, No. 0084 at p. 7) 
The IAPMO states that the plumbing codes assume a maximum flow rate of 
2.5 gpm for showerheads to determine the right size for water piping. 
The installation of showerhead devices that flow far in excess of those 
values will cause problems in right sized plumbing systems resulting 
from excessive flow velocities. (IAPMO, No. 0087 at p. 2) Gassaway 
further stated that the regulation and proper labeling of the products 
is necessary because the purchaser or warranty holder may not be 
interested or invested in ensuring the showerhead meets engineering 
standards and the local plumbing code at the time of installation. 
(Gassaway, No. 0009) DOE notes that this rulemaking is solely a 
definitional change and does not alter the current standards or any 
applicable labeling requirements for showerheads.
    Commenters also discussed innovation regarding showerheads. A 
commenter stated that the higher standards promote innovation. (Rivet, 
No. 0003) Another commenter stated that showerhead engineering has 
developed to a point that 2.5 gpm gives a very good shower stream and 
that many showerheads use less than 2.5 gpm. (Fetting, No. 0004) PMI 
stated that, since the issuance of the 2011 Guidance Document, 
manufacturers have spent millions of dollars to meet current DOE 
Guidelines and regulations. PMI also noted a shift in the showerhead 
marketplace where consumers have embraced water efficiency highlighting 
the 9,000 WaterSense showerhead models compared to 3,500 models in 2015 
and a PMI commissioned study finding that 45.4% of installed 
residential showerheads have a flow rate of 2.0 gpm or less. (PMI, No. 
0073 at pp. 4-5) Another commenter stated that limiting the flow of 
water to 2.5 gpm total, restricted innovation in the showerhead 
industry. (Bell, No. 0016). DOE encourages innovation in showerhead 
engineering.
    Commenters also discussed their perspective on the current 
standard. Some commenters stated that there is no problem with the 
current standard, which has worked for decades. (Moir, No. 0021; Rivet, 
No. 0003; Fisseler, No. 0032; Fetting, No. 0004; Gooch, No. 0043) 
Another commenter stated that the current home appliance regulations 
prioritize efficiency and time consuming designs. (Battig, No. 0044) 
DOE notes that this rulemaking does not alter the current showerhead 
energy conservation standards, rather it revises the definition for 
``showerhead'' and defines the terms ``body spray'' and ``safety shower 
showerhead.''
    Commenters question why DOE was pursuing this proposal, suggesting 
it was a waste of time and resources. (Anonymous, No. 0008; Interested 
Citizen, No. 0005; Center for Biological Diversity, No. 0071 at p. 1) 
This rulemaking will provide clarity to regulated entities and the 
public concerning terms such as ``showerhead'', ``body spray'', and 
``safety shower showerhead.''
    DOE also received a comment related to other current rulemakings. 
(Hare, No. 0012) DOE also received a comment suggesting that DOE's 
Office of Congressional and Intergovernmental Affairs urge Congress to 
revisit EPCA. (Strauch, No. 0067) DOE appreciates all comments on its 
rulemakings, but these comments are outside of the scope of this 
rulemaking.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    This regulatory action is a ``significant regulatory action'' under 
the criteria set out in section 3(f) of Executive Order 12866, 
``Regulatory Planning and Review.'' 58 FR 51735 (Oct. 4, 1993). 
Accordingly, this regulatory action was subject to review under the 
Executive order by the Office of Information and Regulatory Affairs 
(OIRA) in the Office of Management and Budget (OMB). The definitional 
change in this rule is not expected to have a material impact on costs. 
Similarly, the final rule is expected to result in minimal increase

[[Page 81357]]

in benefits, primarily through clarifying the showerhead definition.

B. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued Executive Order (E.O.) 
13771, ``Reducing Regulation and Controlling Regulatory Costs.'' 82 FR 
9339 (Jan. 30, 2017). More specifically, the order provides that it is 
essential to manage the costs associated with the governmental 
imposition of requirements necessitating private expenditures of funds 
required to comply with Federal regulations. In addition, on February 
24, 2017, the President issued Executive Order 13777, ``Enforcing the 
Regulatory Reform Agenda.'' 82 FR 12285 (March 1, 2017). The order 
requires the head of each agency to designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO is tasked with overseeing the 
implementation of regulatory reform initiatives and policies to ensure 
that individual agencies effectively carry out regulatory reforms, 
consistent with applicable law. Further, E.O. 13777 requires the 
establishment of a regulatory task force at each agency. The regulatory 
task force is required to make recommendations to the agency head 
regarding the repeal, replacement, or modification of existing 
regulations, consistent with applicable law.
    DOE has determined that this final rule is consistent with these 
Executive orders. The final rule amends the definition of showerhead 
such that each showerhead in a product with multiple showerheads would 
constitute a single showerhead for purpose of compliance with the 2.5 
gpm standard and define and exclude body sprays and safety shower 
showerheads from the regulatory definition of showerhead. In this final 
rule, DOE is reinterpreting the definition of ``showerhead'' and 
adopting definitions for ``body spray'' and ``safety shower 
showerhead.'' DOE has designated this rulemaking as ``deregulatory'' 
under E.O. 13771 because it is an enabling regulation pursuant to OMB 
memo M-17-21.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996) 
requires preparation of an initial regulatory flexibility analysis 
(IRFA) for any rule that by law must be proposed for public comment and 
a final regulatory flexibility analysis (FRFA) for any such rule that 
an agency adopts as a final rule, unless the agency certifies that the 
rule, if promulgated, will not have a significant economic impact on a 
substantial number of small entities. A regulatory flexibility analysis 
examines the impact of the rule on small entities and considers 
alternative ways of reducing negative effects. Also, 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 7990. DOE has made 
its procedures and policies available on the Office of the General 
Counsel's website at: https://energy.gov/GC/office-general-counsel.
    DOE reviewed this rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. The head of this agency certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this determination is as follows:
    The Small Business Administration (SBA) considers a business entity 
to be a small business, if, together with its affiliates, it employs 
less than a threshold number of workers or earns less than the average 
annual receipts specified in 13 CFR part 121. The threshold values set 
forth in these regulation us size standards codes established by the 
North American Industry Classification System (NAICS) that are 
available at: https://www.sba.gov/document/support-table-size-standards. Plumbing equipment manufacturers are classified under NAICS 
332913 ``Plumbing Fixture Fitting and Trim Manufacturing,'' and NAICS 
327111 ``Pottery, Ceramics, and Plumbing Fixture Manufacturing.'' The 
SBA sets a threshold of 1,000 employees or less for an entity to be 
considered a small business within these categories.
    DOE notes that this final rule would amend the definition of 
showerhead such that each showerhead in a product with multiple 
showerheads would constitute a single showerhead for purposes of 
compliance with the 2.5 gpm standard. The final rule would also 
specifically define and exclude body sprays and safety shower 
showerheads from the regulatory definition of showerhead. This rule 
does not require or prohibit any specific action. Rather, manufacturers 
may choose to develop products as a result of this definitional change 
that comply with the EPCA 2.5 gpm standard, but no manufacturer would 
incur compliance costs as a result of this rule. Accordingly, this rule 
would not have a significant economic impact on any businesses that met 
the SBA definition of a small business. For these reasons, DOE 
certifies that this final rule would not have a significant economic 
impact on a substantial number of small entities, and the preparation 
of a FRFA is not warranted.

D. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of showerheads must certify to DOE that their 
products comply with any applicable energy conservation standards. To 
certify compliance, manufacturers must first obtain test data for their 
products according to the DOE test procedures, including any amendments 
adopted for those test procedures. DOE has established regulations for 
the certification and recordkeeping requirements for all covered 
consumer products and commercial equipment, including showerheads. (See 
generally 10 CFR part 429.) The collection-of-information requirement 
for the certification and recordkeeping is subject to review and 
approval by OMB under the Paperwork Reduction Act (``PRA''). This 
requirement has been approved by OMB under OMB control number 1910-
1400. Public reporting burden for the certification is estimated to 
average 30 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    This rule reinterprets the definition of ``showerhead'' but does 
not set energy conservation standards or establish testing requirements 
for showerheads, and thereby imposes no new information or record 
keeping requirements. Accordingly, Office of Management and Budget 
clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 
3501 et seq.)
    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.

E. Review Under the National Environmental Policy Act of 1969

    Pursuant to the National Environmental Policy Act (NEPA) of 1996, 
DOE has analyzed this action in accordance with NEPA and DOE's NEPA 
implementing regulations (10 CFR part 1021). DOE has determined that 
this rule qualifies for categorical

[[Page 81358]]

exclusion under 10 CFR part 1021, subpart D, appendix A5 because it is 
an interpretive rulemaking that does not change the environmental 
effect of the rule and meets the requirements for application of a 
categorical exclusion. See 10 CFR 1021.410. Therefore, DOE has 
determined that promulgation of this rule is not a major Federal action 
significantly affecting the quality of the human environment within the 
meaning of NEPA, and does not require an environmental assessment or 
environmental impact statement.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), 
imposes certain requirements on Federal 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 13735. EPCA governs and 
prescribes Federal preemption of State regulations that are the subject 
of DOE's regulations adopted pursuant to the statute. In such cases, 
States can petition DOE for exemption from such preemption to the 
extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) 
Therefore, Executive Order 13132 requires no further action.

G. 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. Regarding the review required by section 3(a), 
section 3(b) of Executive Order 12988 specifically requires that each 
Executive agency make every reasonable effort to ensure that when it 
issues a regulation, 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 has determined that, to the extent permitted by 
law, the rule meets the relevant standards of Executive Order 12988.

H. 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, sec. 201 (codified at 2 U.S.C. 1531)) 
For a proposed regulatory action likely to result 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 them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. 62 FR 12820. (This policy is also available at https://www.energy.gov/GC/office-general-counsel under ``Guidance & Opinions'' 
(Rulemaking)) DOE examined the rule according to UMRA and its statement 
of policy and has determined that the rule contains neither an 
intergovernmental mandate, nor a mandate that may result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any year. 
Accordingly, no further assessment or analysis is required under UMRA.

I. 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 Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This 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.

J. Review Under Executive Order 12630

    Pursuant to Executive Order 12630, ``Governmental Actions and 
Interference with Constitutionally Protected Property Rights,'' 53 FR 
8859 (March 18, 1988), DOE has determined that this rule will not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

K. Review Under the Treasury and General Appropriations Act, 2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review 
most disseminations of information to the public under information 
quality 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 rule under the OMB and DOE 
guidelines and has concluded that it is consistent with the applicable 
policies in those guidelines.

L. 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 OIRA 
at OMB, a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgates 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 is likely to have a 
significant adverse effect on the supply,

[[Page 81359]]

distribution, or use of energy; or (2) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected effects on energy supply, distribution, and use.
    DOE has concluded that the regulatory action in this document, 
reinterpreting the definition of ``showerhead'', is not a significant 
energy action because 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 for this rule.

M. Description of Materials Incorporated by Reference

    In this final rule, DOE incorporates by reference the industry 
standard published by ISEA, titled ``American National Standard for 
Emergency Eyewash and Shower Equipment,'' ANSI/ISEA Z358.1-2014. ANSI/
ISEA Z358.1 is an industry-accepted standard that established use and 
performance requirements for eyewash and emergency shower equipment. 
DOE incorporates by reference this industry consensus standard at 10 
CFR 430.2, which defines term associated with energy conservation 
standards and test procedures for consumer products.
    Copies of ANSI/ISEA Z358.1-2014, can be obtained from the 
International Safety Equipment Association, 1901 North Moore Street, 
Suite 808, Arlington, Virginia 22209, www.safetyequipment.org or 
American National Standards Institute, 25 West 43 St., 4th Floor, New 
York, NY 10036. https://ansi.org.

N. 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 in 10 CFR Part 430

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

Signing Authority

    This document of the Department of Energy was signed on December 8, 
2020, by Daniel R Simmons, Assistant Secretary for Energy Efficiency 
and Renewable Energy, pursuant to delegated authority from the 
Secretary of Energy. That document with the original signature and date 
is maintained by DOE. For administrative purposes only, and in 
compliance with requirements of the Office of the Federal Register, the 
undersigned DOE Federal Register Liaison Officer has been authorized to 
sign and submit the document in electronic format for publication, as 
an official document of the Department of Energy. This administrative 
process in no way alters the legal effect of this document upon 
publication in the Federal Register.

    Signed in Washington, DC, on December 8, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends part 430 of 
title 10 of the Code of Federal Regulations as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. 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
2. Section 430.2 is amended by:
0
a. Adding, in alphabetical order, definitions for ``Body spray'' and 
``Safety shower showerhead''; and
0
b. Revising the definition of ``Showerhead''.
    The addition and revision read as follows:


Sec.  430.2  Definitions.

* * * * *
    Body spray means a shower device for spraying water onto a bather 
from other than the overhead position. A body spray is not a 
showerhead.
* * * * *
    Safety shower showerhead means a showerhead designed to meet the 
requirements of ISEA Z358.1 (incorporated by reference, see Sec.  
430.3).
* * * * *
    Showerhead means any showerhead (including a handheld showerhead) 
other than a safety showerhead. DOE interprets the term ``showerhead'' 
to mean an accessory to a supply fitting for spraying water onto a 
bather, typically from an overhead position.
* * * * *

0
3. Section 430.3 is amended by:
0
a. Redesignating paragraphs (c)(3)(iii) through (v) as paragraphs 
(c)(3)(iv) through (vi);
0
b. Redesignating the second paragraph (c)(3)(ii) as new paragraph 
(c)(3)(iii);
0
c. Redesignating paragraphs (q) through (u) and paragraphs (r) through 
(v); and
0
d. Adding new paragraph (q).
    The addition reads as follows:


Sec.  430.3   Materials incorporated by reference.

* * * * *
    (q) International Safety Equipment Association, 1901 North Moore 
Street, Suite 808, Arlington, Virginia 22209, (703) 525-1695, 
www.safetyequipment.org.
    (1) ANSI/ISEA Z358.1-2014 (``ISEA Z358.1''), American National 
Standard for Emergency Eyewash and Shower Equipment, ANSI-approved 
January 8, 2015, IBR approved for Sec.  430.2.
    (2) [Reserved]
* * * * *
[FR Doc. 2020-27280 Filed 12-15-20; 8:45 am]
BILLING CODE 6450-01-P