Energy Conservation Program: Definition of Showerhead, 71797-71810 [2021-27462]
Download as PDF
<![CDATA[
71797
Rules and Regulations
Federal Register
Vol. 86, No. 241
Monday, December 20, 2021
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE–2021–BT–STD–0016]
RIN 1904–AE85
Energy Conservation Program:
Definition of Showerhead
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Final rule.
AGENCY:
On July 22, 2021, the U.S.
Department of Energy (‘‘DOE’’)
published a notice of proposed
rulemaking (‘‘NOPR’’) to revise the
current definition of ‘‘showerhead’’
adopted in the December 16, 2020, final
rule (‘‘December 2020 Final Rule’’) by
reinstating the October 2013 definition
of ‘‘showerhead,’’ withdraw the
December 2020 final rule’s
interpretation of the term
‘‘showerhead,’’ and withdraw the
associated definition for ‘‘body spray.’’
DOE did not propose any changes to the
definition of ‘‘safety shower
showerhead.’’ In this final rule, DOE
revises the current definition of
‘‘showerhead’’ adopted in the December
2020 final rule by reinstating the
October 2013 definition of
‘‘showerhead’’ as the Department finds
that it is more consistent with the
purposes of the Energy Policy and
Conservation Act, as amended
(‘‘EPCA’’). In addition, DOE removes the
current definition of ‘‘body spray’’
adopted in the December 16, 2020 final
rule. Finally, DOE maintains the
definition of ‘‘safety shower
showerhead’’ adopted in the December
2020 final rule.
DATES: The effective date of this rule is
January 19, 2022.
ADDRESSES: The docket for this activity,
which includes Federal Register
notices, comments, and other
supporting documents/materials, is
available for review at
khammond on DSKJM1Z7X2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
www.regulations.gov. All documents in
the docket are listed in the
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 found at
www.regulations.gov/docket/EERE2021-BT-STD-0016. The docket web
page contains instructions on how to
access all documents, including public
comments, in the docket.
For further information on how to
review the docket, contact the
Appliance and Equipment Standards
Program staff at (202) 287–1445 or by
email: ApplianceStandardsQuestions@
ee.doe.gov.
FOR FURTHER INFORMATION CONTACT:
Mr. John Cymbalsky, U.S. Department
of Energy, Office of Energy Efficiency
and Renewable Energy, Building
Technologies Office, EE–5B, 1000
Independence Avenue SW, Washington,
DC 20585–0121. Email:
ApplianceStandardsQuestions@
ee.doe.gov.
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:
Amelia.Whiting@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Authority
B. Background
II. Synopsis of the Final Rule
III. Discussion
A. Reinstatement of the October 2013 Final
Rule’s Definition of ‘‘Showerhead’’
1. EPCA’s Definition of ‘‘Showerhead’’ Is
Ambiguous
2. The December 2020 Final Rule’s
Definition of ‘‘Showerhead’’ Is
Inconsistent With EPCA’s Purposes
3. Reliance on ASME for the Definition of
‘‘Showerhead’’ Is Not Required
4. The Reinstated Definition of
‘‘Showerhead’’ Does Not Effectively Ban
Multi-Headed Showerheads
5. The Definition of ‘‘Showerhead’’ Falls
Within the NTTAA and OMB Circular
A–119 Exception
6. Additional Comments/Issues
B. Withdrawal of DOE’s Current Definition
of ‘‘Body Spray’’
C. Safety Shower Showerhead
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility
Act
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
C. Review Under the Paperwork Reduction
Act of 1995
D. Review Under the National
Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates
Reform Act of 1995
H. Review Under the Treasury and General
Government Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under Treasury and General
Government Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Congressional Notification
V. Approval of the Office of the Secretary
I. Introduction
The following section briefly
discusses the statutory authority
underlying this final rule, as well as the
relevant historical background related to
showerheads, the subject of this final
rule.
A. Authority
Title III of Energy Policy and
Conservation Act, as amended
(‘‘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.1 Part
B of Title III 2 establishes the ‘‘Energy
Conservation Program for Consumer
Products Other Than Automobiles,’’
which includes showerheads (with the
exception of safety shower
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.
B. Background
EPCA defines a showerhead as ‘‘any
showerhead (including a handheld
showerhead), except a safety shower
showerhead.’’ (42 U.S.C. 6291(31)(D)) In
addition to defining ‘‘showerhead,’’
Congress established a maximum water
use threshold of 2.5 gpm applicable to
‘‘any showerhead.’’ (42 U.S.C.
6295(j)(1)). The definition of
‘‘showerhead’’ and the water
conservation standard for showerheads
were added to EPCA by the Energy
1 All references to EPCA in this final rule refer to
the statute as amended through the Energy Act of
2020, Public Law 116–260 (Dec. 27, 2020).
2 For editorial reasons, upon codification in the
U.S. Code, Part B was redesignated as Part A.
E:\FR\FM\20DER1.SGM
20DER1
khammond on DSKJM1Z7X2PROD with RULES
71798
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
Policy Act of 1992 (Pub. L. 102–486
(Oct. 24, 1992)) (‘‘EPAct 1992’’).
Until 2013, DOE regulations did not
contain a separate definition for
‘‘showerhead.’’ (See 78 FR 62970) (Oct.
23, 2013) On May 19, 2010, DOE
published in the Federal Register a
Notice of Availability of a proposed
interpretive rule regarding the definition
of ‘‘showerhead.’’ 75 FR 27926 (‘‘2010
Draft Interpretive Rule’’) In the 2010
Draft Interpretive Rule,3 DOE discussed
how there was uncertainty about how
the EPCA definition of ‘‘showerhead’’
applies to the diversified showerhead
product offerings. Id. at 1. To address
this uncertainty, DOE proposed to
define a ‘‘showerhead’’ as ‘‘any
plumbing fitting that is designed to
direct water onto a bather.’’ Id. at 2
(footnote omitted). As such, DOE stated
it would ‘‘find a showerhead to be
noncompliant with EPCA’s maximum
water use standard if the showerhead’s
standard components, operating in their
maximum design flow configuration,
taken together use in excess of 2.5
gpm.’’ Id. at 3.
On March 4, 2011, DOE formally
withdrew the draft interpretive rule and
issued showerhead enforcement
guidance.4 (‘‘2011 Enforcement
Guidance’’) In the 2011 Enforcement
Guidance, DOE explained that it had
received several complaints alleging
that certain showerhead products
exceeded EPCA’s 2.5 gpm standard.
DOE stated that it had learned that some
had come to believe that a showerhead
that expels water from multiple nozzles
constituted not a single showerhead, but
rather multiple showerheads and thus
could exceed the maximum permitted
water use by a multiple equal to the
number of nozzles on the showerhead.
Id. at 1. Following a review of the record
from the 2010 Draft Interpretive Rule,
DOE concluded that the term ‘‘any
showerhead’’ has been and continues to
be sufficiently clear such that no
interpretive rule was needed. Id. at 2.
Specifically, DOE stated that ‘‘multiple
spraying components sold together as a
single unit designed to spray water onto
a single bather constitutes a single
showerhead for the purpose of the
maximum water use standard.’’ Id. DOE
used its discretion and addressed the
misunderstanding of how to measure
compliance with the standard by
providing a two-year enforcement grace
period to allow manufacturers to sell
3 Available at www.regulations.gov/
document?D=EERE-2010-BT-NOA-0016-0002.
4 Available at www.energy.gov/sites/prod/files/
gcprod/documents/Showerhead_Guidancel.pdf.
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
any remaining noncompliant products.
Id. at 2–3.
On May 30, 2012, DOE proposed to
revise the test procedure for
showerheads and other products and to
change the regulatory definition of
showerheads. 77 FR 31742 (‘‘May 2012
NOPR’’). DOE proposed to adopt
definitions for four terms related to
showerheads—‘‘fitting’’, ‘‘accessory’’,
‘‘body spray’’, and ‘‘showerhead’’—in
order to address certain provisions of
the revised American Society of
Mechanical Engineers/American
National Standards Institute (‘‘ASME/
ANSI’’) test procedures that were not
contemplated in the versions referenced
by the existing DOE test procedure, and
to establish greater clarity with respect
to product coverage. 77 FR 31742,
31747.5 Specifically, DOE proposed to
define ‘‘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, including body
sprays and hand-held showerheads, but
excluding safety shower showerheads.’’
77 FR 31742. 31755. The proposed
definition clarified that DOE considered
a ‘‘body spray’’ to be a showerhead for
the purposes of regulatory coverage. 77
FR 31742, 31747.
Responding to comments on the May
2012 NOPR, DOE issued on April 8,
2013 a supplemental notice of proposed
rulemaking (‘‘SNOPR’’) in which DOE
proposed a revised definition of
‘‘showerhead’’ and withdrew its
proposal to include ‘‘body sprays’’ in
the definition of ‘‘showerhead’’ in light
of concerns raised by commenters and
DOE’s need to further study the issue.
78 FR 20832, 20834–20835, 20841
(‘‘April 2013 SNOPR’’). The SNOPR’s
modified definition of ‘‘showerhead’’
removed the term ‘‘accessory’’ from the
definition based on comments about the
use of the term. 78 FR 20832, 20834.
Under the proposed modified
definition, a ‘‘showerhead’’ is ‘‘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, 20834. DOE also requested
comment on whether to define the term
‘‘safety shower showerhead’’ to address
which products qualify for exclusion
5 DOE also proposed to adopt a definition for
‘‘hand-held showerhead’’ in the May 2012 NOPR.
77 FR 31742, 31747. This final rule does not
reference that discussion, as DOE is not proposing
any edits to the existing definition of ‘‘hand-held
showerhead.’’
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
from coverage under EPCA and DOE
regulations. 78 FR 20832, 20835, 20840.
On October 23, 2013, DOE issued a
final rule amending test procedures for
showerheads and other products and
adopting definitions for products,
including showerheads. 78 FR 62970
(‘‘October 2013 Final Rule’’). In this
final rule, DOE adopted in substance the
modified definition of ‘‘showerhead’’
proposed in the April 2013 SNOPR. 78
FR 62970, 62986. The October 2013
Final Rule defined ‘‘showerhead’’ 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.’’ Id. at 78 FR
62986. DOE did not finalize the
definition of ‘‘body spray’’ proposed in
the May 2012 NOPR. Id. at 78 FR 62973.
DOE also declined to adopt a definition
of ‘‘safety shower showerhead’’, and
explained that it was unable to identify
a definition that would clearly
distinguish these products from the
showerheads covered under EPCA. Id.
at 78 FR 62974.
On August 13, 2020, DOE proposed
revising the definition of a
‘‘showerhead’’ to be consistent with the
most recent ASME standard. 85 FR
49284 (‘‘August 2020 NOPR’’). DOE also
proposed to adopt definitions of ‘‘body
spray’’ and ‘‘safety shower showerhead’’
and to clarify whether the current test
procedure would apply to the proposed
definitional changes. Id. at 85 FR 49285.
In addition, DOE proposed to amend the
test procedure for showerheads to
address the testing of a single
showerhead within a multiheaded
showerhead. Id. at 85 FR 49292.
On December 16, 2020, DOE
published a final rule amending the
definition of ‘‘showerhead’’ and
adopting definitions for ‘‘body spray’’
and ‘‘safety shower showerhead.’’ 85 FR
81341. Specifically, the December 2020
Final Rule amended the meaning of
‘‘showerhead’’ to restate the statutory
definition and explicitly define the term
through incorporation of the ASME
definition to mean ‘‘an accessory to a
supply fitting for spraying onto a bather,
typically from an overhead position.’’
Id. at 85 FR 81342, 81359. In the
December 2020 Final Rule’s definition,
DOE interpreted the new definition to
mean that each ‘‘showerhead’’ included
in a product with multiple showerheads
would be considered separately for
purposes of determining standards
compliance. Id. at 85 FR 81342. In
addition, DOE established a definition
for ‘‘body spray’’, citing the need to
address ambiguity about whether body
sprays were considered showerheads
E:\FR\FM\20DER1.SGM
20DER1
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
under the October 2013 Final Rule. Id.
at 85 FR 81342, 81350. DOE defined the
term ‘‘body spray’’ as ‘‘a shower device
for spraying water onto a bather from
other than the overhead position. A
body spray is not a showerhead.’’ Id. at
85 FR 81359. Lastly, DOE defined the
term ‘‘safety shower showerhead’’ by
incorporating by reference the definition
of ‘‘safety shower showerhead’’ from the
ANSI/International Safety Equipment
Association (‘‘ISEA’’) Z358.1–2014,6
such that a ‘‘safety shower showerhead’’
is ‘‘a showerhead designed to meet the
requirements of ISEA Z358.1.’’ Id. at 85
FR 81359. The December 2020 Final
Rule determined that leaving the term
‘‘safety shower showerhead’’ undefined
would cause confusion as to which
products are excluded from the
definition of ‘‘showerhead.’’ Id. at 85 FR
81351. DOE did not finalize the test
procedure amendments that had been
proposed in the August 2020 NOPR. Id.
at 85 FR 81351.
On January 20, 2021, the President
issued Executive Order 13990,
‘‘Protecting Public Health and the
Environment and Restoring Science to
Tackle the Climate Crisis.’’ 86 FR 7037
(Jan. 25, 2021) (‘‘E.O. 13990’’). Section
1 of that Order lists a number of policies
related to the protection of public health
and the environment, including
reducing greenhouse gas (‘‘GHG’’)
emissions and bolstering the Nation’s
resilience to the impacts of climate
change. Id. at 86 FR 7041. Section 2 of
the Order instructs all agencies to
review ‘‘existing regulations, orders,
guidance documents, policies, and any
other similar agency actions
promulgated, issued, or adopted
between January 20, 2017, and January
20, 2021, that are or may be inconsistent
with, or present obstacles to, [these
policies].’’ Id. Agencies are directed, as
appropriate and consistent with
applicable law, to consider suspending,
revising, or rescinding these agency
actions. Id.
While E.O. 13990 triggered the
Department’s re-evaluation of the
December 2020 Final Rule, DOE relies
upon the analysis presented below,
based upon EPCA, to revise the
definition ‘‘showerhead’’ and to
withdraw the definition of ‘‘body spray’’
in the July 2021 NOPR and in this final
rule. On July 22, 2021, DOE issued a
NOPR (‘‘July 2021 NOPR’’) in which it
proposed to revise the definition of
‘‘showerhead’’ adopted in the December
2020 Final Rule by reinstating the prior
definition of ‘‘showerhead.’’ 86 FR
38594. Further, DOE tentatively
71799
determined that, in reinstating the prior
definition of ‘‘showerhead,’’ all
components attached to a single supply
fitting (i.e., all nozzles or spraying
components within a product
containing multiple nozzles or spraying
components) would be considered part
of a single showerhead for determining
compliance with the 2.5 gpm standard.
Id. In addition, DOE proposed to
withdraw the current definition of
‘‘body spray’’ adopted in the December
2020 Final Rule. Id. Finally, DOE did
not propose any changes to the
definition of ‘‘safety shower
showerhead’’ adopted in the December
2020 Final Rule. Id.
DOE invited comment on all aspects
of July 2021 NOPR, including data and
information to assist in evaluating
whether the definition of ‘‘showerhead’’
from the October 2013 Final Rule
should be reinstated. Id. at 86 FR 38594.
On August 31, 2021, DOE held a
webinar to present the substance of the
July 2021 NOPR and afford interested
parties an opportunity to present
comments.7
DOE received comments in response
to the July 2021 NOPR from the
interested parties listed in Table I.1.DOE
received two comments that were not
within the scope of the rulemaking.8
khammond on DSKJM1Z7X2PROD with RULES
TABLE I.1—WRITTEN COMMENTS RECEIVED IN RESPONSE TO JULY 2021 NOPR
Commenter(s)
Reference in this Final Rule
Commenter type
Alliance for Water Efficiency (‘‘AWE’’); Amy Vickers and Associates, Inc.; Arizona
Municipal Water Users Association; Athens-Clarke County Public Utilities Dept.
(GA); Best Management Partners; Center for Water-Efficient Landscaping; Citizens Water Advocacy Group; City of Bend, OR; City of Durham, NC; City of
Flagstaff, AZ; City of Hays, KS; City of Mesa, AZ; City of Round Rock, TX; City
of Santa Rosa, CA; City of Westminster, CO; Connecticut Water Company;
Dickinson Associates; Foothill Municipal Water District (CA); Houston Public
Works (TX); Maine Water Company; Metropolitan North Georgia Water Planning District; Monterey Peninsula Water Management District (CA); Municipal
Water District of Orange County (CA); National Wildlife Federation; PHCC–National Association; Regional Water Authority (CA); Rancho California Water District; San Antonio Water System (TX); San Jose Water (CA); Seattle Public Utilities (WA); SJWTX (TX); Southern Nevada Water Authority; Tucson Water (AZ);
Walnut Valley Water District (CA); Water Demand Management, LLC.
Anonymous Anonymous ............................................................................................
Appliance Standards Awareness Project (‘‘ASAP’’), Alliance for Water Efficiency,
American Council for an Energy-Efficient Economy, Consumer Federation of
America, and Natural Resources Defense Council.
California Energy Commission ...................................................................................
California Investor-Owned Utilities (Pacific Gas and Electric Company, San Diego
Gas and Electric, Southern California Edison).
Competitive Enterprise Institute, FreedomWorks Foundation, Consumers’ Research, Citizens Against Government Waste, Caesar Rodney Institute, Project
21, Texas Public Policy Foundation, The Cornwall Alliance for the Stewardship
of Creation, 60 Plus Association, Roughrider Policy Center, Americans for Prosperity, Committee for a Constructive Tomorrow.
Andrew Doty ...............................................................................................................
Dan Glucksman ..........................................................................................................
Kevin Halligan ............................................................................................................
Katherine Hekstra ......................................................................................................
AWE et al ................................
Efficiency Organizations,
Municipal Utilities and
Governments, Trade Associations.
Anonymous .............................
Joint Advocates ......................
Individual.
Efficiency Organizations.
CEC ........................................
CA IOUs ..................................
State.
Utilities.
CEI et al ..................................
Policy Organizations.
Doty .........................................
Glucksman ..............................
Halligan ...................................
Hekstra ....................................
Individual.
Individual.
Individual.
Individual.
6 ANSI/ISEA Z358.1–2014, ‘‘American National
Standard for Emergency Eyewash and Shower
Equipment.’’
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
7 The webinar presentation and transcript are
available in the docket at www.regulations.gov/
docket/EERE-2021-BT-STD-0016/document.
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
8 See
E:\FR\FM\20DER1.SGM
Comment Nos. 9, and 24).
20DER1
71800
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
TABLE I.1—WRITTEN COMMENTS RECEIVED IN RESPONSE TO JULY 2021 NOPR—Continued
Commenter(s)
Reference in this Final Rule
Alicia Johnston ...........................................................................................................
Shane Kelley ..............................................................................................................
Metropolitan North Georgia Water Planning District .................................................
Northwest Power and Conservation Council .............................................................
Plumbing Manufacturers International .......................................................................
James Ramer .............................................................................................................
James Southerland ....................................................................................................
Marl Walters ...............................................................................................................
Johnston .................................
Kelley ......................................
the District ...............................
NPCC ......................................
PMI ..........................................
Ramer .....................................
Southerland .............................
Walters ....................................
A parenthetical reference at the end of
a comment quotation or paraphrase
provides the location of the item in the
public record.9
khammond on DSKJM1Z7X2PROD with RULES
II. Synopsis of the Final Rule
Following a review of the December
2020 Final Rule and the comments
received in response to the August 2020
NOPR, relevant authorities, and
comments received in response to the
July 2021 NOPR, DOE is withdrawing
the December 2020 Final Rule’s
definition of ‘‘showerhead,’’ and is
reinstating the October 2013 Final
Rule’s definition of ‘‘showerhead.’’ See
78 FR 62970, 62986. As such, DOE
defines the term ‘‘showerhead’’ 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.’’ DOE is also
withdrawing the December 2020 Final
Rule’s interpretation that each
‘‘showerhead’’ included in a product
with multiple showerheads would be
considered separately for purposes of
determining standards compliance.
Whereas in the December 2020 Final
Rule DOE stated that while water
conservation is obviously a purpose of
EPCA, the definitional changes follow
congressional reliance on the ASME
standard. DOE has reconsidered this
balance and has come to a different
policy conclusion that water
conservation is a more important EPCA
purpose and should be weighed more
heavily when amending the definition
of a covered product than consistency
with ASME (with which DOE has no
statutory obligation to align its
definition). The Department finds that
the definition of ‘‘showerhead’’ as
presented in this final rule better
effectuates EPCA’s water conservation
9 The parenthetical reference provides a reference
for information located in the docket of DOE’s
rulemaking to amend the definition of showerhead.
(Docket No. EERE–2021–BT–STD–0016, which is
maintained at www.regulations.gov). The references
are arranged as follows: (Commenter name,
comment docket ID number, page of that
document).
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
purposes. This final action will also
provide consumers the benefits derived
from water savings that will accrue over
time with this return to the definition of
‘‘showerhead’’ that existed prior to the
December 2020 Final Rule.
DOE is also withdrawing the
definition of ‘‘body spray’’ adopted in
the December 2020 Final Rule. DOE
finds that the current definition of
‘‘body spray’’ is inconsistent with the
express purpose of EPCA to conserve
water by improving the water efficiency
of certain plumbing products and
appliances as the current definition may
lead to increased water use. Further, the
definition of ‘‘body spray’’ does not best
address the relationship between body
sprays and showerheads. This is
because the only difference between the
definitions of ‘‘body spray’’ and
‘‘showerhead’’ is the installation
location, as shown by the similar
treatment of the two products in the
marketplace. Finally, DOE is
maintaining the definition of ‘‘safety
shower showerhead,’’ as leaving the
term undefined may cause confusion
about what products are subject to the
energy conservation standards.
III. Discussion
A. Reinstatement of the October 2013
Final Rule’s Definition of ‘‘Showerhead’’
In the July 2021 NOPR, DOE
tentatively determined that EPCA’s
definition of showerhead is ambiguous
and that the December 2020 Final Rule’s
definition of ‘‘showerhead’’ is not
consistent with EPCA’s purposes to
conserve water by improving water
efficiency of certain plumbing products
and appliances and to improve energy
efficiency of major appliances and
consumer products. 86 FR 38594,
38597; (See also 42 U.S.C. 6201) DOE
also tentatively determined that:
Congressional intent does not require
DOE to adopt the ASME definition for
‘‘showerheads;’’ that the October 2013
Final Rule did not effectively ban multiheaded showerheads from the market;
and that the December 2020 Final Rule’s
definition of ‘‘showerhead’’ is
inconsistent with EPCA’s purposes, and
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
Commenter type
Individual.
Individual.
Municipal Government.
Efficiency Organization.
Trade Association.
Individual.
Individual.
Individual.
falls within the National Technology
Transfer and Advancement Act of 1995
(‘‘NTTAA’’) and OMB Circular A–119
exception to the use of voluntary
consensus standards. Id. As such, DOE
proposed to withdraw the December
2020 Final Rule’s definition of
‘‘showerhead’’ and to reinstate the
definition of ‘‘showerhead’’ from the
October 2013 Final Rule. Id.
Based on the discussion in the
following sections and the analysis
presented in the July 2021 NOPR, DOE
is reinstating the pre-December 2020
Final Rule definition of ‘‘showerhead’’
as proposed in the July 2021 NOPR. In
response to the July 2021 NOPR, PMI,
the CA IOUs, the Joint Advocates, and
CEC supported DOE’s reevaluation of
the December 2020 Final Rule and
urged the finalization of the proposed
rule. (PMI, No. 22 at pp.1–2; CA IOUs,
No. 20 at p. 1; Joint Advocates, No. 23
at pp.1, 3; CEC, No. 19 at pp. 1–2; PMI,
Public Meeting Transcript at p.6; CA
IOUs, Public Meeting Transcript at p.4)
AWE, et al., the District, and NPCC also
supported DOE’s proposal to reinstate
the prior definition of ‘‘showerhead.’’
(AWE, et al., No. 21 at p. 1; the District,
No. 16 at pp.1–2; NPCC, No. 12 at p. 1;
AWE, Public Meeting Transcript at p.7)
Additionally, Hekstra and ASAP
commented in support of this
rulemaking. (Hekstra, No. 17; ASAP,
Public Meeting Transcript at p. 4)
However, CEI et al. opposed reinstatement of the definition of
showerhead as established in the
October 2013 Final Rule on the grounds
that it is incompatible with the law and
detrimental to consumers. (CEI et al.,
No. 18 at p. 2)
1. EPCA’s Definition of ‘‘Showerhead’’
Is Ambiguous
In the July 2021 NOPR, DOE
tentatively determined that the term
‘‘showerhead’’ is ambiguous. 86 FR
38594, 38597–38598. EPCA defines the
term ‘‘showerhead’’ as ‘‘any showerhead
(including a handheld showerhead),
except a safety shower showerhead.’’
(42 U.S.C. 6291(31)(D)) Congress
adopted this definition of showerhead
E:\FR\FM\20DER1.SGM
20DER1
khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
in 1992 as part of the Energy Policy Act.
Thereafter, however, between 1992 and
2010, the designs of showerhead
diversified into a myriad of products
including waterfalls, shower towers,
rainheads, and shower systems.10 In the
2010 Draft Interpretive Rule, DOE noted
that it had become aware of uncertainty
in how the EPCA definition and
standard applies to such products. Id.
As such, DOE issued the draft
interpretive rule to ‘‘make clear to all
stakeholders’’ DOE’s interpretation of
the definition of ‘‘showerhead’’ with
respect to the 2.5 gpm maximum water
use requirement. Id. at 1–2.
Similarly, in the 2011 Enforcement
Guidance, DOE explained that it had
learned that some had come to believe
that a showerhead that expels water
from multiple nozzles constituted not a
single showerhead, but rather multiple
showerheads and thus could exceed the
maximum permitted water use.11 DOE
further acknowledged that absence of
enforcement could have contributed to
that misunderstanding. Id. at 2. While
DOE acknowledged such confusion,
DOE withdrew the 2010 Draft
Interpretive Rule in the 2011
Enforcement Guidance document based
on its conclusion that the term ‘‘any
showerhead’’ has been, and continues to
be, sufficiently clear such that no
interpretive rule is needed. Id. In the
2011 Enforcement Guidance, DOE stated
that multiple spraying components sold
together as a single unit designed to
spray water onto a single bather
constitute a single showerhead for
purpose of the maximum water use
standard. Id. DOE provided
manufacturers a two-year grace period
to sell any remaining noncompliant
products and to adjust product designs
for compliance with EPCA and DOE
regulations. Id. at 3.
Consequently, the ambiguity of the
word ‘‘showerhead’’ in EPCA is
underscored by its history. DOE’s
statements in both the 2010 Draft
Interpretive Rule and the 2011
Enforcement Guidance illustrate that
confusion existed among manufacturers
about what constituted a showerhead
under the statutory definition. The
diversification of the marketplace as it
pertains to ‘‘showerheads’’ and the
confusion about what products were
considered a showerhead by
manufacturers following inclusion of
the term in EPCA, as amended by EPAct
1992, further illustrate that the statutory
definition of ‘‘showerhead’’ is
10 See https://www.regulations.gov/
document?D=EERE-2010-BT-NOA-0016-0002.
11 See https://www.energy.gov/sites/prod/files/
gcprod/documents/Showerhead_Guidancel.pdf.
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
ambiguous. In the July 2021 NOPR, DOE
stated that it believes that any ambiguity
in the statutory meaning should be
explicated by a regulatory definition
that is consistent with EPCA’s purposes.
86 FR 38594, 38598.
In response to the July 2021 NOPR,
commenters highlighted the circular
nature of the statutory definition of
‘‘showerhead.’’ CEI et al. commented
that the statutory definition of
showerhead is circular—the definition
of the term includes the term being
defined (i.e., showerhead is a
showerhead). Further, CEI et al. argued
that the December 2020 Final Rule
concluded that the statutory uncertainty
was largely resolved when the pershowerhead approach was adopted by
ASME, even though the July 2021 NOPR
asserted ongoing doubt. (CEI et al., No.
18 at p. 2) And Hekstra agreed that
consumers and manufacturers
appreciate clarity and a circular
definition is not clear. (Hekstra, No. 17
at p. 1).
DOE agrees that the statutory
definition of ‘‘showerhead’’ is a circular
definition, which further illustrates the
ambiguity of a term that is defined by
itself. Further, contrary to CEI et al.’s
assertion that the statutory uncertainty
was resolved in the December 2020
Final Rule, the December 2020 Final
Rule stated that ambiguity exists
regarding what is considered a
‘‘showerhead’’ under EPCA and, in that
rule, DOE said it was clarifying what
constitutes a ‘‘showerhead.’’ 85 FR
81341, 81344. As outlined in the
previous discussion, DOE continues to
find that the statutory definition of
‘‘showerhead’’ is ambiguous for the
reasons presented in the July 2021
NOPR and in this final rule. Ambiguity
in the statutory meaning is
appropriately resolved by a regulatory
definition that furthers EPCA’s purposes
consistent with that statute.
2. The December 2020 Final Rule’s
Definition of Showerhead Is
Inconsistent With EPCA’s Purposes
As outlined in the July 2021 NOPR,
Congress included a statement of
purpose in EPCA that sets forth seven
purposes related to energy. Most
relevant to the Energy Conservation
Program, one of the primary purposes of
EPCA is ‘‘to conserve energy supplies
through energy conservation programs,
and, where necessary, the regulation of
certain energy uses.’’ (42 U.S.C. 6201(4);
Pub. L. 94–163 (Dec. 22, 1975)); see 86
FR 38594, 38598. The EPAct 1992
amended EPCA by adding plumbing
products, including showerheads, to the
products covered by the Energy
Conservation Program. (Pub. L. 102–486
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
71801
(Oct. 24, 1992)) In doing so, EPAct 1992
also added to EPCA the purpose of
conservation of water ‘‘by improving the
water efficiency of certain plumbing
products and appliances,’’ in addition to
the purpose of energy savings. (42
U.S.C. 6201(8))
In the 2010 Draft Interpretive Rule,
DOE explained that all components that
are supplied together and function from
one inlet form a single showerhead for
purposes of the maximum water use
standards under EPCA.12 DOE stated
that neither the statutory definition nor
the test procedures for showerheads
treat a showerhead differently based
upon the shape, size, placement, or
number of sprays or openings it may
have. Id. at 2. Further, DOE highlighted
that the test procedure contemplates
that the regulated showerhead fitting
may have additional ‘‘accessory’’ water
outlets and specifies that all standard
accessories must be attached and set at
maximum flow during testing. Id. DOE
clarified that a showerhead is
determined to be noncompliant if the
standard components, operating in their
maximum design flow configuration
taken together use in excess of 2.5 gpm.
Id. at 3. (emphasis omitted) DOE stated
that this approach furthers the goal of
EPCA to ‘‘conserve water by improving
the water efficiency’’ of showerheads.
Id. In DOE’s 2011 Enforcement
Guidance, DOE articulated a modified
interpretation of the statutory definition
of ‘‘showerhead’’ from the definition
proposed in the 2010 Draft Interpretive
Rule. DOE stated that multi spraying
units sold together as a single unit
designed to spray water onto one bather
are considered a single showerhead.13
DOE explained that all sprays and
nozzles should be turned onto the
maximum flow setting to determine
water use. Id. DOE found this approach
is consistent with the industry standard,
the statutory language, and
Congressional intent to establish a
maximum water use requirement. Id.
These previous statements by DOE
illustrate that a definition of
‘‘showerhead’’ that includes a multiheaded showerhead is consistent with
EPCA’s purpose of water conservation.
While the 2020 rulemaking
acknowledged that water conservation
is among EPCA’s purposes, it did not
fully account for how its definition of
‘‘showerhead’’ would comport with this
purpose of EPCA. 85 FR 81341, 81353.
In the July 2021 NOPR, DOE stated that
the definition of ‘‘showerhead’’
12 See https://www.regulations.gov/
document?D=EERE-2010-BT-NOA-0016-0002.
13 See https://www.energy.gov/sites/prod/files/
gcprod/documents/Showerhead_Guidancel.pdf.
E:\FR\FM\20DER1.SGM
20DER1
khammond on DSKJM1Z7X2PROD with RULES
71802
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
established in the December 2020 Final
Rule allows each nozzle within a
showerhead with multiple nozzles to be
separately subject to the standard, and
thereby allows water flow at a multiple
of that standard and the related increase
of energy for water heating. 86 FR
38594, 38598.
As discussed in the July 2021 NOPR,
the contemplated treatment of
showerheads in the 2010 Draft
Interpretive Rule, the articulated
interpretation in the 2011 Enforcement
Guidance, and the regulatory definition
established in the October 2013 Final
Rule (i.e., all components attached to a
single supply fitting/inlet are a single
showerhead) further the goal of EPCA to
‘‘conserve water by improving the water
efficiency’’ of showerheads. 86 FR
38594, 38598. In treating all
components attached to a single supply
fitting/inlet as a shower head, the 2.5
gpm standard applies to the combined
water flow of all such attached
components.
In response to the July 2021 NOPR,
commenters discussed the statutory
interpretation of the term
‘‘showerhead.’’ AWE et al. quoted the
definition of the term ‘‘showerhead’’
from Merriam-Websters.com, which
defines the term as ‘‘a fixture for
directing the spray of water in a
bathroom shower.’’ AWE et al. stated
that the definition of showerhead in the
2013 Rule appropriately aligns with this
understanding. AWE et al. further stated
that the December 2020 Final Rule
meant that a person taking a shower
from a multi-nozzle product would be
using multiple showerheads at once—a
concept that is awkward under the
common, ordinary usage of the word
showerhead. (AWE et al., No. 21 at p.
2) AWE et al. explained that objects that
are sold as a set together, installed
together, and used together constitute a
single product from the consumer’s
point of view and the usage of these
objects simultaneously for the function
of showering demonstrates the
collection of them—the nozzles all
together—is the single product known
as a showerhead. (AWE et al., No. 21 at
p. 3) CEC stated that the October 2013
definition more clearly defines the term
showerhead to mean any showerhead,
other than a safety showerhead, must
meet the maximum flow rate of 2.5 gpm.
Specifically, CEC explained that DOE’s
interpretation of the term in the
December 2020 final rule is not justified
or a permissible construction of the
statute and measuring the water flow of
all sprayers on a multi-nozzle device at
the same time is the only meaningful
interpretation of the statutory and
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
regulatory structure of showerhead.
(CEC, No. 19 at p. 3)
Conversely, CEI et al. argued that the
most likely intent of the statutory
definition is that the 2.5 gpm restriction
is applicable to each individual
showerhead, otherwise the statute
would have used the term shower
instead. (CEI et al., No. 18 at p. 2)
AWE et al. and CEC’s comments
discussing the general understanding of
the term ‘‘showerhead’’ further confirm
DOE’s positions outlined in the 2010
Draft Interpretive Rule and the 2011
Enforcement Guidance that all
components/units sold together as a
single unit are considered a single
showerhead. CEI et al. suggests that the
term ‘‘showerhead’’ applies to each
individual showerhead, while the term
‘‘shower’’ applies to a collection of
showerheads. The term ‘‘shower’’ is
generally understood to mean the
location in which plumbing fixtures
(e.g., showerhead, tub faucet, body
spray) are installed to allow for the act
of showering. These comments further
illustrate that the term ‘‘showerhead’’ is
ambiguous, as discussed in section
III.A.1. As these comments and
statements illustrate that the term
‘‘showerhead’’ can comprise a multiheaded showerhead and is consistent
with EPCA’s purpose of water
conservation.
In response to the July 2021 NOPR,
commenters discussed the impacts of
the current definition of ‘‘showerhead.’’
NPCC stated that the definitions of
‘‘showerhead’’ adopted in the December
2020 Final Rule provide two significant
loopholes to compliance with the
standard inconsistent with the purposes
of EPCA, with real significant
consequences for energy and water
conservation. (NPCC, No. 12 at pp.1–2)
NPCC estimated that the December 2020
Final Rule definition of ‘‘showerhead’’
could significantly increase water use
per shower and significantly impact
consumption of electricity as well as
natural gas. (NPCC, No. 12 at p. 2) The
Joint Advocates stated that the
definition of ‘‘showerhead’’ that was
finalized in the December 2020 Final
Rule goes against the purposes of EPCA
and allows for showerheads to use an
unlimited amount of water.
Additionally, the Joint Advocates stated
that the current definition of
‘‘showerhead’’ would allow for
excessive water use and result in
increased costs for consumers. (Joint
Advocates, No. 23 at p.1) The CA IOUs
stated that the December 2020 Final
Rule introduced the prospect of
limitless water usage in many
showerhead products. (CA IOUs, No. 20
at p.1) Hekstra commented that the 2020
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
definition created a loophole that needs
to be closed to meet the goal of creating
a system that reduces the amount of
water used per minute by the average
shower user. (Hekstra, No. 17)
CEC stated that the climate and
environmental damages, such as harm
from increased emissions, worse air
quality, unnecessary energy demand,
and water availability, resulting from
the December 2020 Final Rule are felt
across state lines. (CEC, No. 19 at p.2)
CEC stated that the definition included
in the December 2020 Final Rule results
in an increase in water and energy use
nationwide by allowing multi-sprayer
devices to use more than the maximum
flow rate, and is not a permissible
construction of the statute. (CEC, No. 19
at p.3)
AWE et al. referenced its prior
comments in which it estimated that the
current definition could increase annual
energy consumption by 25 trillion
British thermal units for each gpm
increase in shower flow rate, and
together with the increased annual
domestic water use, could increase
annual water and energy bills for
American consumers by an estimated
$1.14 billion. (AWE et al., No. 21 at p.
4) AWE et al. explained that the U.S. is
experiencing serious water shortages
and the December 2020 Final Rule only
serves to increase the consumption of
drinking water that will have severe
impacts on water supplies across the
country. Further, AWE et al. stated that
the December 2020 Final Rule could
increase residential water consumption
upwards of 160 gallons annually by
allowing multiple showerhead systems
to increase flows from the previous 2.5
gpm. AWE et al. also noted the pressure
on water utilities will continue to grow,
due to population increases in areas like
the West, where water is scare, and
climate change, which is causing longterm declines in rainfall in many
regions. The increased water
consumption under the December 2020
Final Rule will increase water utility
costs as it becomes necessary to provide
new water supplies, and therefore may
increase customer bills, as the costs for
procuring needed new water supplies is
passed onto consumers. (AWE et al., No.
21 at pp.2–3) AWE stated that the
December 2020 Final Rule would
potentially waste billions of gallons of
water, increase energy use and power
plant emissions, and raise consumer
water bills. Further, with much of the
country struggling with drought, these
2020 changes could further compromise
water supply availability. (AWE, Public
Meeting Transcript at p. 7)
CEI et al. asserted that EPCA requires
DOE to balance energy and/or water
E:\FR\FM\20DER1.SGM
20DER1
khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
conservation against other factors
important to consumers, including costs
and other consumer protections. (CEI et
al., No. 18 at p. 3) CEI et al. argued that
the proposed rule did not provide
evidence that it would result in
significant water savings as required by
statute. CEI et al. further stated that
without evidence of widespread
adoption of multi-head showers with a
maximum flow rate above 2.5 gpm, the
agency has not shown that reimposing
the restrictions on them would result in
significant water savings. CEI et al. also
argued that showers are adjustable and
even with models that have maximum
flow rate above 2.5 gpm, users will not
necessarily use that level of water flow
for every shower—the highest settings
in such showerhead would only be used
occasionally and such use would likely
be shorter in duration. CEI et al.
continued that the insignificance of the
water savings undercuts the climate
change rationale for the Proposed Rule.
(CEI et al., No. 18 at p. 5) Finally, CEI
et al. stated that the July 2021 NOPR’s
critique of the December 2020 Final
Rule is based on the misleading belief
that the statutory provisions prioritize
efficiency above everything else. (CEI et
al., No. 18 at p.6)
Anonymous suggested that if less
water is coming out of their shower per
minute, a consumer may take longer
showers. (Anonymous, No. 5 at p. 1)
Similarly, Southerland argued that
restricting the water flow from a
showerhead will not ‘‘save’’ water
because if water flow is restricted, a
person will take a longer shower
defeating the purpose of the limited
water flow. (Southerland, No. 2)
DOE has considered these comments
in this rulemaking as they relate to the
December 2020 Final Rule’s definition
of ‘‘showerhead.’’ DOE continues to
believe that EPCA’s purpose should be
considered when amending the
definition of a covered product. As this
rulemaking does not amend the water
conservation standards for
showerheads, DOE is not required to
conduct the analysis required by 42
U.S.C. 6295(o) suggested by CEI et al.
Further, DOE continues to consider all
relevant statutory provisions, including
those related to consumer protection,
which are discussed in section IV.4.
DOE agrees with commenters that if
maintained, the December 2020 Final
Rule ‘‘showerhead’’ definition will
likely increase water usage and increase
associated energy use. These increases
would be contrary to EPCA’s purposes
of reducing water and energy
consumption. As such, DOE has
determined that the December 2020
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
Final Rule’s definition of ‘‘showerhead’’
should be withdrawn.
Also, in response to the July 2021
NOPR, DOE received comments about
the prior 2013 definition of
‘‘showerhead.’’ The NPCC stated that
the reinstated definition of
‘‘showerhead’’ would return stability to
the consumption and efficiency aspects
of the showerhead standard. Further,
NPCC explained that the Northwest has
about 10 million showerheads, and
reinstating this definition will ensure
significant electricity, natural gas, and
water savings are not lost. (NPCC, No.
12 at p. 2) The District stated that the
proposed withdrawal better fits with the
purpose of the EPCA by improving the
energy efficiency and water efficiency of
consumer products. Further, the District
commented that efficient shower
fixtures reduce water usage not only per
household, but also on a regional scale.
This reduction in demand helps
conservation efforts especially in
regions experiencing frequent droughts
and other water-conscious communities
that would be detrimentally impacted
by unnecessary additional use of water.
(The District, No. 16 at pp.1–2) The
Joint Advocates stated that the October
2013 definition will not result in
excessive water use and with several
regions across the country facing
droughts and water shortages, it is
important now more than ever to reduce
water demand and conserve energy.
(Joint Advocates, No. 23 at p. 1) Hekstra
stated that the 2013 definition will
reduce the amount of water used by
those that wish to have multiple
showerheads in one shower. (Hekstra,
No. 17)
AWE et al. commented that DOE’s
proposal to reinstate the definition from
the 2013 Rule will better effectuate
EPCA’s water conservation purposes.
(AWE et al., No. 21 at p.2) AWE et al.
reiterated the significant water and
energy savings from the existing
definition of ‘‘showerhead’’ and that the
cumulative savings over 10 years from
2.5 gpm showerheads could supply up
to 1 million homes with water and
670,000 homes with energy for a year.
AWE et al. also stated that the
replacement of older, high-flow
showerheads provides 11 billion gallons
per year in water savings and 5 trillion
Btu per year in energy savings in the
United States. (AWE et al., No. 21 at p.
4)
CEC explained that conserving water
is especially important because 90
percent of the Western United States is
experiencing drought conditions and 54
percent is in ‘‘extreme drought.’’ CEC
also noted that California has seen more
than 7,200 fire incidents and more than
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
71803
2 million acres burned, including
devastating fires such and that it is
imperative to use every available tool to
address the unnecessary and inefficient
use of energy and water, including and
especially improving energy and water
conservation standards. (CEC, No. 19 at
pp.1–2) The CA IOUs stated that over 95
percent of California’s landmass is
currently impacted by severe drought,
so it is critical for its state that DOE
ensure showerhead water efficiency is
protected and strengthened. (CA IOUs,
Public Meeting Transcript at p.3) And
Kelley noted the importance of
conserving valuable resources. (Kelley,
No. 11)
DOE has considered the comments
received in response to the July 2021
NOPR and agrees with the commenters
that the definition of ‘‘showerhead’’
from the October 2013 Final Rule and
the associated interpretation provided
water and energy savings and protected
the environment. As discussed above in
this section, DOE continues to find that
the history of the definition of
‘‘showerhead’’ and the comments in
response to July 2021 NOPR illustrate
that the term ‘‘showerhead’’ can
comprise a multi-headed showerhead
and is consistent with EPCA’s purpose
of water conservation. Further, DOE has
determined that if maintained, the
December 2020 Final Rule
‘‘showerhead’’ definition will likely
increase water usage and increase
associated energy use and as such the
current definition of ‘‘showerhead’’
should be withdrawn.
As such, DOE is withdrawing the
definition of showerhead finalized in
the December 2020 Final Rule and reinstating the definition established in
the October 2013 Final Rule, which as
discussed, appropriately addresses the
water conservation purpose of EPCA.
3. Reliance on ASME for the Definition
of ‘‘Showerhead’’ Is Not Required
In the July 2021 NOPR, DOE
explained that it tentatively departed
from the view expressed in the
December 2020 Final Rule that it would
be more consistent with Congressional
intent to rely on ASME for the
definition of ‘‘showerhead.’’ 86 FR
38594, 38600. DOE stated that DOE does
not believe Congress required reliance
on the ASME definition. Id.
As discussed previously in this
document, Congress established the
definition of ‘‘showerhead’’ in EPAct
1992, along with the provisions related
to definitions, standards, test
procedures, and labeling requirements
for plumbing products. (Pub. L. 102–
486; Oct. 24, 1992 Sec. 123) EPAct 1992
and EPCA define the term
E:\FR\FM\20DER1.SGM
20DER1
khammond on DSKJM1Z7X2PROD with RULES
71804
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
‘‘showerhead’’ as ‘‘any showerhead
(including a handheld showerhead),
except a safety shower showerhead.’’
(42 U.S.C. 6291(31)(D)) In the same
paragraph, Congress provided explicit
direction to define the terms ‘‘water
closet’’ and ‘‘urinal’’ in accordance with
ASME A112.19.2M, but did not provide
such instructions with respect to
‘‘showerhead.’’ (Cf. Sec. 123(b)(5) of
Pub. L. 102–486) DOE has learned since
the July 2021 NOPR that ASME
A112.18.1M–1989 did not contain a
definition for showerheads, but it did
contain requirements for showerheads.
Congress adopted the ASME standards
only for the water conservation
standards, test procedures, and labeling
requirements, specified ASME
A112.18.1M–1989 as the applicable
standard, and required DOE to adopt the
revised version of the standard, unless
it conflicted with the other requirements
of EPCA. (42 U.S.C. 6295(j)(1) and (3);
42 U.S.C. 6293(b)(7); 42 U.S.C.
6294(a)(2)(E)) While Congress could not
rely on a definition of ‘‘showerhead’’ in
ASME A112.18.1M–1989 in defining the
term, Congress could have required DOE
to adopt a definition of ‘‘showerhead’’
as defined in any revised version of the
ASME A112.18.1M–1989 as it did with
requirements for standards and test
procedures related to standards.
Congress defined ‘‘showerhead’’ and did
not explicitly require DOE to amend the
definition of ‘‘showerhead’’ in
conformity with the applicable ASME
standard.
Further, the mere fact that the terms
immediately preceding showerhead are
‘‘ASME’’ and ‘‘ANSI’’ does not suggest
that Congress intended for DOE to rely
on the ASME definition. EPCA directly
references ASME A112.18.1M–1989, or
a revised version of the standard
approved by ANSI, for showerhead test
procedures, energy conservation
standards, and labeling requirements,
but noticeably does not direct DOE to
adopt a definition of ‘‘showerhead’’
from an amended version of the
industry standard. Had Congress
intended for DOE to apply the definition
of ‘‘showerheads’’ from the industry
standard, it would have provided the
necessary reference. DOE received a
comment only from CEC on this issue.
CEC stated that DOE correctly concludes
that Congress did not require DOE to
rely on ASME for the definition of
showerheads. (CEC, No. 19 at p. 3).
Based on the discussion in the
preceding paragraphs and presented in
the July 2021 NOPR, DOE maintains its
decision that it is not required to define
‘‘showerhead’’ according to the ASME
definition and that Congress intended
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
DOE to have flexibility to define the
term.
4. The Reinstated Definition of
‘‘Showerhead’’ Does Not Effectively Ban
Multi-Headed Showerheads
As discussed in the July 2021 NOPR,
EPCA provides that the Secretary is
prohibited from prescribing an amended
or new standard if the Secretary finds
that interested persons have established
by a preponderance of the evidence that
the standard is likely to result in the
unavailability in the United States in
any covered product type (or class) of
performance characteristics (including
reliability), features, sizes, capacities,
and volumes that are substantially the
same as those generally available in the
United States at the time of the
Secretary’s finding. (42 U.S.C.
6295(o)(4)); 86 FR 38594, 38601.
In the August 2020 NOPR, DOE
proposed to adopt an amended
definition of ‘‘showerhead’’ that
complies with the Congressional
directive to preserve performance
characteristics and features that were
available on the market at the time DOE
originally acted to eliminate them. 85
FR 49298, 49291. DOE explained that it
cannot regulate or otherwise act to
remove products with certain
performance characteristics and features
from the market given the prohibition in
42 U.S.C. 6295(o)(4). 85 FR 49282,
49290. In the December 2020 Final Rule,
DOE further explained that considering
two, three, or eight showerheads in a
given product to be a ‘‘feature’’ is
consistent with DOE’s previous
rulemakings and determinations of what
constitutes a feature. 85 FR 81341,
81347. DOE further stated that following
the 2011 Enforcement Guidance, which
DOE stated appeared to effectively ban
the vast majority of products with
multiple ‘‘showerheads’’ from the
market, DOE codified in DOE
regulations its effective ban on products
with multiple showerheads from the
market. 85 FR 49284, 49291. DOE
acknowledged, as is the case with the
August 2020 definitional proposed rule,
that the October 2013 Final Rule was
not a standards rulemaking and did not
comply with the statutory requirements
of a standards rulemaking. 85 FR 81341,
81347. DOE stated, however, that the
effect 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. Id.
In the July 2021 NOPR, DOE revisited
its application of section 6295(o)(4) of
EPCA in the context of the
‘‘showerhead’’ definition. 86 FR 38594,
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
38601. As discussed in the July 2021
NOPR, the ‘‘unavailability’’ provision of
section 6295(o)(4) of EPCA applies to
the establishment and amendment of
standards. Further, assuming arguendo
that DOE did amend the water
conservation standard or that the rule
had the effect of a water conservation
standard, the October 2013 Final Rule
did not eliminate multi-headed
showerheads from the market. DOE
reviewed its certification database and
found that currently there are 7,704
basic models of showerheads, with
multi-headed showerheads continuing
to account for 3% of all basic models.
Therefore, 42 U.SC. 6295(o)(4) was not
applicable in the October 2013 Final
Rule as DOE did not amend the
standard for showerheads, nor did the
rule eliminate multi-headed
showerheads from the market as there
are currently over 231 basic models on
the market. Further, as multi-headed
showerheads have not been eliminated
from the market, DOE is not
determining whether multi-headed
showerheads provide a functionality/
performance characteristic. Id. at 86 FR
38602.
CEI et al. stated that EPCA forbids any
standard that compromises product
features and performance. (CEI et al.,
No. 18 at p. 3) CEI et al. argued that the
law only requires a showing that at least
one model including such feature was
generally available at the time the
standard was promulgated, and that
Congress could have explicitly
overridden the consumer protections in
the law and categorically outlawed any
and all shower configurations that allow
more than 2.5 gpm in total, and that the
statute did not clearly do so. (CEI et al.,
No. 18 at p. 4) Finally, CEI et al. further
stated that although DOE reasserted that
any changes to the definition of
showerhead are not a new or amended
standards rulemaking, the
reinterpretation has the effect of
changing the standard and as such must
comply with the pro-consumer
provisions in the statute. (CEI et al., No.
18 at p. 4) CEI et al. also stated that
while multi-showerhead units can be
manufactured as long as they do not use
more than 2.5 gpm in total, such models
are unlikely to deliver desired
performance and thus would not meet
the statutory requirements of being
‘‘substantially the same’’. (CEI et al., No.
18 at pp. 4–5)
In support of the July 2021 NOPR,
PMI explained that its members have
spent millions of dollars on research
and development, manufacturing, thirdparty certification, packaging,
marketing, and distribution of waterefficient showerheads to meet the
E:\FR\FM\20DER1.SGM
20DER1
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
October 2013 Final Rule definition and
that such-products are high-performing
plumbing products. (PMI, No. 22 at p.
2) PMI further stated that its member
companies did not produce, sell or
distribute modified showerheads to
meet the new definition of showerhead
that was put in place in the December
2020 Final Rule. (Id.)
As explained in the December 2020
Final Rule and the July 2021 NOPR,
DOE’s previous definitional changes
and rulemakings for showerheads were
not standards rulemakings nor is DOE
establishing or amending standards for
showerheads. Therefore DOE is not
determining whether multi-headed
showerheads provide a functionality/
performance characteristic. (See 42
U.S.C. 6295(o)(4)) Even assuming
arguendo, as in the July 2021 NOPR (86
FR 38594, 53602), that DOE did amend
the water conservation standard or that
the rule had the effect of a water
conservation standard, the definition
established in the October 2013 Final
Rule did not eliminate multi-headed
showerheads from the market. A review
of the market prior to the December
2020 Final Rule illustrated that three
percent of the 7,221 basic models of
showerheads are multi-headed
showerheads. See 85 FR 49284, 49293.
While the information DOE used to
determine the number of multi-headed
showerheads in the July 2021 NOPR is
no longer available,14 DOE has
conducted a general review of models
currently on the retail market, which
indicates that showerheads with
multiple nozzles/spray components,
continue to be available. Given that
multi-headed showerheads continue to
be available in the market, this action
does not reduce performance nor
remove any features from the market as
asserted by CEI.
CEI et al. also expressed concern
about the performance quality of multiheaded showerheads required to meet
the 2.5 gpm standard for the whole
system. (See CEI, No. 18 at pp. 4–5) PMI
explained that that its members have
been able to produce high-performing
showerheads consistent with the
October 2013 Final Rule. (See PMI, No.
22 at p. 2) If the provision at 42 U.S.C.
6295(o)(4) were applicable to this
rulemaking, which as discussed it is
not, CEI et al. have not established by
a preponderance of evidence the
14 For the December 2020 Final Rule, DOE
determined the percentage of showerheads that are
multi-headed showerheads using a retailer website.
However, the same retailer website no longer
provides the information needed to calculate an
updated percentage. In addition, CCMS does not
distinguish multi-headed showerheads from other
showerheads.
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
unavailability of showerheads with
multiple nozzles/spray components, as
required by EPCA. The October 2013
Final Rule definition, i.e., the definition
reinstated by this final rule, did not
eliminate multi-head shower heads from
the market. As such, the definition
adopted in this final rule is consistent
with the Congressional directive to
preserve performance characteristics
and features.
5. The Definition of ‘‘Showerhead’’ Falls
Within the NTTAA and OMB Circular
A–119 Exception to Adherence to
Voluntary Consensus Standards Because
It Is Inconsistent With EPCA and
Impractical
Section 12(d)(1) of the NTTAA
requires that Federal departments ‘‘use
technical standards that are developed
or adopted by voluntary consensus
standards bodies, except when the use
of the technical standards is
inconsistent with applicable law or
otherwise impractical.’’ (Pub. L. 104–
113, 110 Stat. 783 (Mar. 7, 1996), as
amended by Public Law 107–107, Div.
A, Title XI, section 115, 115 Stat. 1241
((Dec. 28, 2001) (codified at 15 U.S.C.
272 note)). Similarly, OMB Circular A–
119 directs Federal agencies to use
voluntary consensus standards unless
inconsistent with applicable law or
otherwise impractical. (Section 1 of
OMB Circular A–119;
www.whitehouse.gov/wp-content/
uploads/2020/07/revised_circular_a119_as_of_1_22.pdf.)
In the December 2020 Final Rule,
DOE stated that the definition of
‘‘showerhead’’ adopted in that final rule
is consistent with the requirements of
the NTTAA and the associated OMB
Circular A–119. 85 FR 81341, 81342.
DOE explained that EPCA does not
preclude DOE from using industry
standards and that the statutory text of
EPCA does not make compliance with
OMB Circular A–119 inconsistent with
applicable law or otherwise
impracticable. Id. at 85 FR 81348. DOE
further stated that it disagrees that the
ASME definition frustrates and is
inconsistent with the requirements of
EPCA. Id.
As part of DOE’s reconsideration of
the December 2020 Final Rule, DOE
tentatively determined in the July 2021
NOPR, in light of the comments
provided during the rulemaking for the
December 2020 Final Rule, that it is not
appropriate to rely on the consensus
industry standards as they relate to
showerheads in accordance with the
NTTAA and OMB Circular A–119
because the December 2020 Final Rule
definition of ‘‘showerhead’’ based on
ASME consensus industry standards is
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
71805
inconsistent with EPCA and is
impractical. 86 FR 38594, 38602–38632.
DOE did not receive comment to the
July 2021 NOPR regarding the NTTAA
and OMB Circular A–119 exception.
For the reasons set forth in the July
2021 NOPR, DOE finds that it should
not adopt an industry standard here, as
it would conflict with EPCA’s
requirements and be impractical. (See
15 U.S.C. 272 note; OMB Circular A–
119 section 5.c.15) DOE’s determination
in the December 2020 Final Rule did not
properly weigh the ASME definition of
‘‘showerhead’’ in the context of the
purposes of EPCA, as it pertains to the
NTTAA and OMB Circular A–119.
Upon reconsideration, adopting the
ASME industry standards for the
definition of ‘‘showerhead’’ in the
present context conflicts with EPCA and
is impractical because it does not serve
the purposes of water and energy
conservation. And the ‘‘showerhead’’
definition and interpretation in the
December 2020 Final Rule is
inconsistent with EPCA and is
impractical because it would permit
increased water usage and increased
associated energy use, directly contrary
to EPCA’s purposes. As such, the
definition of ‘‘showerhead’’ is within
the exception of NTTAA and OMB
Circular A–119.
6. Additional Comments/Issues
DOE received a comment regarding
the applicability of EPCA’s antibacksliding provision. AWE et al. stated
that on its face, the December 2020
Final Rule change amended the
standard applicable to showerheads,
and did so in a way that increased the
‘‘maximum allowable water use’’ of
showerheads. They argue therefore that
the 2020 Rule thus violated EPCA’s
‘‘anti-backsliding’’ rule, 42 U.S.C.
6295(o)(1). (AWE et al., No. 21 at p. 1)
AWE et al. further argued that the
December 2020 Final Rule rationalized
that DOE had not established the
previous interpretation through a
standards rulemaking. AWE asserted
that the anti-backsliding rule does not
require, as a predicate, that there was a
previous standards-setting rulemaking.
Instead, AWE stated that the 2.5-gpm
standard was established by Congress,
just as EPCA establishes many other
initial conservation standards, and DOE
established the pre-2020 status quo in
an appropriate way—explaining its
interpretation through a guidance
document, reiterating that interpretation
15 DOE incorrectly referred to the wrong section
of OMB Circular A–119 (section 6.a.2.) in the
August 2021 NOPR. 86 FR 38594, 38603. The
correct citation is used in this document.
E:\FR\FM\20DER1.SGM
20DER1
khammond on DSKJM1Z7X2PROD with RULES
71806
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
in the 2013 rulemaking, and confirming
it in a regulatory definition. AWE
further stated that regardless of whether
the process involved a standards-setting
rule, the outcome was certain: Until
December 2020, a multiple-nozzle
product was allowed to flow only at a
maximum rate of 2.5 gpm. AWE et al.
suggested that DOE is therefore
obligated to revoke the 2020 Rule,
because that Rule is simply contrary to
EPCA and unlawful. (AWE et al., No. 21
at p.2)
DOE agrees with AWE, et al. that the
December 2020 Final Rule amendment
of the definition of ‘‘showerhead’’ could
lead to increased water use. As
discussed in section III.2., DOE also
agrees with AWE, et al. that the
definition of ‘‘showerhead’’ in the
December 2020 Final Rule is
inconsistent with EPCA’s purposes of
energy and water conservation. Further,
DOE is withdrawing the definition of
’showerhead’ adopted in the December
2020 Final Rule and returning to the
definition from the October 2013 Final
Rule. However, 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)) The adoption of new or
revised definitions for products,
including ‘‘showerheads’’, does not
implicate the anti-backsliding
provisions because it is not a standard
nor does it alter the current standard.
This final rule only amends the
definition of ‘‘showerhead’’ and does
not amend the standards for
showerheads, which were established
by Congress in EPCA. (See 42 U.S.C.
6295(j)(1))
DOE also received comments
generally opposed to the regulation of
the water flow of showerheads. (See
Doty, No. 3 at p. 1; Southerland, No. 2
at p. 1; Walters, No. 4 at p. 1) Ramer
commented that the proposed definition
will place a higher cost, due to testing,
for showerhead manufacturers and
consumers. (Ramer, No. 10 at p. 1)
Halligan asked whether a grace period
would be provided to allow businesses
and building owners to retrofit existing
models. (Halligan, No. 8 at p. 1) As
discussed in section II.B., Congress
established the definition of
‘‘showerhead’’ in EPAct 1992 and
tasked DOE with implementing the
provisions related to definitions,
standards, and test procedure
requirements for plumbing products.
(Pub. L. 102–486; Oct. 24, 1992 Sec.
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
123) Further, the definition adopted in
this final rule and the statutory standard
apply to products as manufactured, not
products already installed. (See
generally 42 U.S.C. 6302)
A commenter also questioned
whether the December 2020 Final Rule’s
definition of ‘‘showerhead’’ really
limited DOE’s capabilities in the water
conservation effort. (Johnston, No. 7 at
p. 1) As discussed in section IV.A.II, the
December 2020 Final Rule’s definition
for ‘‘showerhead’’ would increase water
and energy use.
B. Withdrawal of DOE’s Current
Definition of ‘‘Body Spray’’
DOE adopted a definition for ‘‘body
spray’’ in the December 2020 Final Rule,
concluding that the definition of
‘‘showerhead’’ in the October 2013 Final
Rule did not specifically include or
exclude body sprays and that this
omission may have introduced
uncertainty for regulated parties and
that therefore it is appropriate to clarify
that body sprays are not showerheads.
85 FR 81341, 81350. DOE defined the
term ‘‘body spray’’ as ‘‘a shower device
for spraying water onto a bather from
other than the overhead position. A
body spray is not a showerhead.’’ 85 FR
81341, 81359. DOE also stated 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. 85 FR 81341, 81350.
In the July 2021 NOPR, DOE revisited
the definition of ‘‘body spray,’’
including the comments received in the
rulemaking to the December 2020 Final
Rule. In the July 2021 NOPR, DOE
tentatively determined that the
definition of ‘‘body spray’’ and the
interpretation that body sprays are not
a showerhead does not effectively
address the relationship between these
two products. 86 FR 38594, 38603. The
2018 ASME standard, as well as the
2012 ASME standard, treat the products
similarly, and the only difference
between the definitions of
‘‘showerhead’’ and ‘‘body spray’’ is the
installation location. Further, the market
review conducted by the CA IOUs
during the rulemaking for the December
2020 Final Rule indicates that these two
products are not treated differently in
the marketplace.16 Given the similar
treatment by the industry standard and
the market, as well as the lack of
discernable differences between the
products, DOE tentatively determined
16 See Docket No. EERE–2020–BT–TP–0002–0084
at pp.3–5.
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
that the current definition does not best
address the relationship between these
two products. Id. In addition, DOE
stated that the current definition of
‘‘body spray’’ may result in excessive
water use that is inconsistent with
EPCA’s purposes. Id. While DOE
explained in the December 2020 Final
Rule that leaving the term ‘‘body
sprays’’ undefined introduced
uncertainty into the market about
whether those products needed to
comply with the 2.5 gpm standard, the
research done by CA IOUs shows that
products with body sprays complied
with the energy conservation standard.
Id. As such, DOE tentatively determined
that the current definition of ‘‘body
spray’’ should be withdrawn. Id.
In response to the July 2021 NOPR,
DOE received comments expressing
support for the withdrawal of the
recently codified definition of ‘‘body
spray’’ from the ASAP, CEC, NPCC, CA
IOUs, AWE et al., the District, and the
Joint Advocates. (CEC, No. 19 at p. 3;
NPCC, No. 12 at p. 2; CA IOUs, No. 20
at p. 1; AWE et al., No. 21 at p. 3; the
District, No. 16 at p. 2; Joint Advocates,
No. 23 at p. 2; ASAP, Public Meeting
Transcript at p. 5)
Specifically, CEC stated that the
December 2020 Final Rule established
an ambiguous definition for ‘‘body
spray’’ that relies solely on
manufacturer intent and consumer
installation decisions, rather than
discernable technical differences
between the products. (CEC, No. 19 at
p. 3) CEC added that this change to how
DOE treats body sprays created a
significant loophole for manufacturers
to develop and sell devices that perform
the same function as a showerhead, but
are not required to meet the maximum
2.5 gpm flow rate simply because of
‘‘manufacturer intent’’ or device
placement. (Id. at pp. 3–4) AWE et al.
stated that withdrawing the definition of
‘‘body spray’’ is consistent with the
purposes of the EPCA and will comply
with current ASME A112.18.1/CSA
B125.1 standard. (AWE et al., No. 21 at
p.3) AWE et al. also explained that the
body spray exclusion constitutes a
significant loophole, allowing a product
to be sold, installed, and used with
water flow far in excess of the statutory
standard, just because the water
approaches the bather from a different
angle. (Id.) Further, the Joint Advocates
explained that industry standards and
market research show that body spray
and showerhead products are
technically comparable and are often
treated similarly in the market, with the
only difference being the location of
installation and as such, body spray
products should not be explicitly
E:\FR\FM\20DER1.SGM
20DER1
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
excluded from meeting the 2.5 gpm
standard. (Joint Advocates, No. 23 at
p. 2) ASAP also stated that the
definition of ‘‘body spray’’ would result
in a loophole since a body spray could
be installed in pretty much any
orientation. (ASAP, Public Meeting
Transcript at p. 6)
Commenters also discussed the
impacts of the current ‘‘body spray’’
definition on energy and water
conservation. CEC also stated that by
realigning its definition with the
October 2013 Final Rule, DOE will
reduce confusion and uncertainty in the
market, resulting in energy and water
conservation nationwide. (CEC, No. 19
at p. 4) The Joint Advocates explained
that the current definition of ‘‘body
spray’’ has the potential to result in
excessive water use by allowing
products that meet this definition to be
exempt from any energy conservation
standards. (Joint Advocates, No. 23 at
p. 2)
As described in the July 2021 NOPR
and reiterated by commenters in
response to the July 2021 NOPR,
industry standards and the marketplace
treat ‘‘showerheads’’ and ‘‘body sprays’’
similarly with the only difference being
in the installation location. Further,
DOE continues to agree with the
commenters’ concerns about the
increased water and energy use of the
existing definition of ‘‘body spray.’’
Having considered the comments
received and based on the discussion
presented in the preceding paragraphs
and in July 2021 NOPR, DOE is
withdrawing the current definition of
‘‘body spray.’’
C. Safety Shower Showerhead
In the December 2020 Final Rule,
DOE established a definition for the
term ‘‘safety shower showerhead.’’ 85
FR 81341, 81351. Specifically, DOE
defined ‘‘safety shower showerhead’’ to
mean ‘‘a showerhead designed to meet
the requirements of ANSI/ISEA Z358.1
(incorporated by reference, see
§ 430.3).’’ 85 FR 81341, 81352; see also
10 CFR 430.2.
In the July 2021 NOPR, DOE did not
propose to amend the definition of
‘‘safety shower showerhead’’ and
continued to find that leaving the scope
of products not subject to EPCA’s energy
conservation standard undefined causes
confusion and is inappropriate. 86 FR
38594, 38603. Further, DOE continued
to find that: What is meant by a ‘‘safety
shower showerhead’’ or emergency
shower is understood in the regulated
industry; that it is unlikely that
manufacturers of showerheads intended
for use by residential consumers would
design a showerhead to meet the
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
specifications of the ANSI standard in
order to avoid compliance with DOE
standards; and that the definition and
performance criteria in the definition of
‘‘safety shower showerhead’’ addressed
concerns noted by the commenters in
the 2020 rulemaking and distinguish a
showerhead from a safety shower
showerhead. Id. at 86 FR 38603–38604.
Accordingly, DOE tentatively
determined that retaining the definition
of ‘‘safety shower showerhead’’ was
necessary and appropriate. Id. at 86 FR
38604.
In response to the July 2021 NOPR,
DOE received comments expressing
support for maintaining its definition of
a ‘‘safety shower showerhead’’ as
codified by the 2020 Final Rule from CA
IOUs, CEC, ASAP, AWE et al., and PMI.
(CA IOUs, No. 20 at p. 1; CEC, No. 19
at p. 4; ASAP, Public Meeting
Transcript at p.4; AWE et al., No. 21 at
p. 3; PMI, No. 22 at p. 2; PMI, Public
Meeting Transcript at p. 6) Hekstra
requested that there is a definition of
‘‘safety shower showerhead.’’ Hekstra
explained that a manufacturer cannot
ensure they are within or without the
exception of a safety shower
showerhead if they do not know what
one is. (Hekstra, No. 17) Glucksman
asked whether the definition of
‘‘showerhead’’ applies to work and eye
wash safety stations or if the July 2021
NOPR applies only to consumer-based
showers. (Glucksman, No. 06 at p. 1)
CEC supported the retention of the
definition of ‘‘safety shower
showerheads,’’ but commented that that
the definition for ‘‘safety shower
showerheads’’ presents a potential
loophole in that the ANSI/ISEA Z358.1–
2014 specifications do not prohibit
these devices from operating in a
‘‘partially on’’ state, and therefore
manufacturers could develop products
that meet the requirements of ANSI/
ISEA Z358.1–2014, but that could also
operate in a ‘‘partially on’’ state that
resembles a non-compliant showerhead.
(CEC, No. 19 at p. 4) CEC stated that it
has not identified any such products on
the market, but CEC recommended that
DOE monitor sales to ensure
manufacturers are not exploiting this
potential loophole and consider
amendments to the definition. (Id.) The
Joint Advocates recommended that DOE
further improve the definition of ‘‘safety
shower showerhead’’ to eliminate the
possibility of circumvention of federal
water efficiency requirements by
exploiting perceived ambiguities in the
federal definition of showerhead. The
Joint Advocates commented future
products could conceivably be designed
to both meet the ANSI/ISEA standard’s
requirements and be capable of
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
71807
providing a shower for bathing at flow
rates well above the federal standard.
(Joint Advocates, No. 23 at p. 2) The
Joint Advocates recommended that DOE
require that safety shower showerheads
both meet the ANSI/ISEA standard’s
requirements and also be ‘‘designed and
marketed exclusively for emergency
shower applications.’’ (Id.)
The comments by Glucksman and
Hekstra illustrated the continuing need
to have a definition for the term ‘‘safety
shower showerhead.’’ Consistent with
the CEC and the Joint Advocates’
observations, DOE is not aware of
products on the market certified to
ANSI/ISEA Z358.1–2014 that allow for
operation at a reduced flowrate
appropriate for normal bathing. Section
4.2 of ANSI/ISEA Z358.1–2014 specifies
that the valve for a safety shower
showerhead ‘‘shall be simple to operate
and shall go from ‘off’ to ‘on’ in 1
second or less.’’ The specification for
the ‘‘off’’ to ‘‘on’’ operation of the valve
makes it unlikely that a value with an
intermediate setting that provides
reduced flow (i.e., reducing the flowrate
from 20 gpm specified in the industry
standard to a flowrate acceptable for
normal bathing) would comply with the
definition of ‘‘safety shower
showerhead.’’ Further, the testing
procedures for ANSI/ISEA certification
of emergency showers in Section 4.4.1
of ANSI/ISEA Z358.1–2014 also
requires verification that the valve
‘‘fully opens in one second or less and
that it stays open,’’ indicating that valve
must be open for the duration of the
operation, in turn not allowing for any
reduced flow rates. Therefore, DOE
finds it unlikely that manufacturers
would introduce safety shower
showerheads that allow for operation at
a reduced flow due to the risk of
inadvertent operation of the product at
a reduce flow in an emergency situation.
As such, DOE is not amending the
definition of ‘‘safety shower
showerhead.’’
IV. Procedural Issues and Regulatory
Review
A. Review Under Executive Order 12866
The Office of Management and Budget
(OMB) has determined that this final
rule constitutes a ‘‘significant regulatory
action’’ under section 3(f) of Executive
Order (E.O.) 12866, ‘‘Regulatory
Planning and Review,’’ 58 FR 51735
(Oct. 4, 1993). Accordingly, this action
was subject to review under E.O. 12866
by the Office of Information and
Regulatory Affairs (OIRA) at OMB.
This rule provides important benefits
to consumers, producers, and society.
Clear definitions, as finalized in this
E:\FR\FM\20DER1.SGM
20DER1
71808
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
rule, are beneficial to resolve ambiguity
for manufacturers and consumers. And
because returning to the October 2013
definition of ‘‘showerhead,’’
withdrawing the current definition of
‘‘body spray,’’ and maintaining the
current definition of ‘‘safety shower
showerhead’’ better effectuate EPCA’s
water and energy conservation
purposes, this rule also reinforces to
manufacturers and the public that
DOE’s overarching goal in implementing
EPCA is water and energy conservation.
By returning to the definition of
‘‘showerhead’’ and to the interpretation
of ‘‘body spray’’ that existed prior to the
December 2020 Final Rule, the rule
provides consumers and society the
benefits derived from the water and
energy savings of DOE’s previous
approach to these terms. Consumers
have access in the market to highperforming showerheads, including
multi-headed showerheads, that meet
the definitions finalized here, and so
this action does not reduce performance
or remove from the market any features
that are currently available. DOE
expects that these benefits to consumers
and society will materialize over the
long term as DOE believes that
manufacturers have no near-term plans
to produce, sell, or distribute modified
showerheads that would use more water
in ways inconsistent with the
definitions being re-adopted in this rule.
DOE has weighed the benefits
(decreased water usage, increased
clarity, and consumer energy savings)
against the potential costs, and has
determined that the benefits of adopting
this definition change outweigh the
costs, and that achieving these benefits
for consumers and society effectuates
the purposes of EPCA.
B. Review Under the Regulatory
Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires preparation
of a final regulatory flexibility analysis
(‘‘FRFA’’) for any final rule where the
agency was first required by law to
publish a proposed rule for public
comment, unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. As required by
E.O. 13272, ‘‘Proper Consideration of
Small Entities in Agency Rulemaking,’’
67 FR 53461 (Aug. 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 rulemaking process. 68 FR 7990.
DOE has made its procedures and
policies available on the Office of the
General Counsel’s website
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
(www.energy.gov/gc/office-generalcounsel).
DOE reviewed this final rule under
the provisions of the Regulatory
Flexibility Act and the procedures and
policies published on February 19,
2003. DOE certifies that the final rule
will not have significant economic
impact on a substantial number of small
entities. The factual basis for this
certification is set forth in the following
paragraphs.
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 use size standards codes
established by the North American
Industry Classification System
(‘‘NAICS’’) that are available at:
www.sba.gov/document/support--tablesize-standards. Plumbing equipment
manufacturers are classified under
NAICS 332913 ‘‘Plumbing Fixture
Fitting and Trim Manufacturing,’’ and
NAICS 327110 ‘‘Pottery, Ceramics, and
Plumbing Fixture Manufacturing.’’ The
SBA sets a threshold of 1,000 employees
or fewer for an entity to be considered
a small business within these categories.
This final rule withdraws the current
definition of showerhead and reinstates
the prior definition of showerhead. It
also withdraws the definition of body
sprays. Finally, this final rule retains the
definition of safety shower showerhead.
DOE has not found any showerheads
that have been introduced into the
market by any manufacturers, large or
small, since the December 2020 Final
Rule became effective that certified
compliance on the basis of the revised
definitions in the December 2020 Final
Rule, as compared to the definition
established in the October 2013 Final
Rule. All certified showerheads in
DOE’s Compliance Certification
Database 17 (‘‘CCMS’’) have flow rates
no greater than 2.5 gpm and would meet
the definition established in the October
2013 Final Rule. Additionally, in
response to the July 2021 NOPR, PMI
stated that its member companies did
not produce, sell, or distribute modified
showerheads to meet the new definition
of showerhead that was put in place in
the December 2020 Final Rule. (PMI,
No. 22 at p. 2) As such, DOE has not
found any evidence that any
manufacturer, large or small, has
introduced any showerhead model that
relied on the definition of showerhead
17 www.regulations.doe.gov/certification-data.
Last accessed on November 30, 2021.
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
that was put in place in the December
2020 Final Rule. Based on the foregoing,
DOE certifies that this final rule will not
have a significant economic impact on
a substantial number of small entities.
C. 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-ofinformation 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 35 hours per response,
including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
This final rule withdraws the current
definition of showerhead and reinstates
the prior definition of showerhead. It
also withdraws the definition of body
sprays. Finally, this final rule retains the
definition of safety shower showerhead.
It does not amend the reporting
requirement. Further as noted, DOE has
not identified any showerheads that
have been introduced into the market
since the December 2020 Final Rule
became effective for which certification
is on the basis of the revised definitions
in the December 2020 Final Rule, as
compared to the definition established
in the October 2013 Final Rule.
Specifically, all certified showerheads
in the CCMS have flow rates no greater
than 2.5 gpm and PMI stated in their
comments that its member companies,
which comprises over 90 percent
plumbing product, did not produce, sell
or distribute modified showerheads
based on the December 2020 Final Rule.
(PMI, No. 22 at p. 2) Showerheads will
not be required to recertify based solely
on the amendment to the definitional
amendments adopted in this final rule.
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
E:\FR\FM\20DER1.SGM
20DER1
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
D. Review Under the National
Environmental Policy Act of 1969
Pursuant to the National
Environmental Policy Act (NEPA) of
1969, DOE has analyzed this final action
in accordance with NEPA and DOE’s
NEPA implementing regulations (10
CFR part 1021). DOE has determined
that this rule qualifies for categorical
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 an
environmental impact statement.
khammond on DSKJM1Z7X2PROD with RULES
E. Review Under Executive Order 13132
E.O. 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. DOE has examined this final rule
and has determined that it would not
have a substantial direct effect on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. EPCA governs and
prescribes Federal preemption of State
regulations as to energy conservation for
the products that are the subject of this
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
final rule. 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) No further
action is required by Executive Order
13132.
F. Review Under Executive Order 12988
With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of E.O.
12988, ‘‘Civil Justice Reform,’’ 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. 61 FR 4729 (Feb. 7, 1996).
Regarding the review required by
section 3(a), section 3(b) of E.O. 12988
specifically requires that executive
agencies make every reasonable effort to
ensure that the regulation: (1) Clearly
specifies the preemptive effect, if any,
(2) clearly specifies any effect on
existing Federal law or regulation, (3)
provides a clear legal standard for
affected conduct while promoting
simplification and burden reduction, (4)
specifies the retroactive effect, if any, (5)
adequately defines key terms, and (6)
addresses other important issues
affecting clarity and general
draftsmanship under any guidelines
issued by the Attorney General. Section
3(c) of Executive Order 12988 requires
executive agencies to review regulations
in light of applicable standards in
section 3(a) and section 3(b) to
determine whether they are met or it is
unreasonable to meet one or more of
them. DOE has completed the required
review and determined that, to the
extent permitted by law, this final rule
meets the relevant standards of E.O.
12988.
G. Review Under the Unfunded
Mandates Reform Act of 1995
Title II of the Unfunded Mandates
Reform Act of 1995 (‘‘UMRA’’) requires
each Federal agency to assess the effects
of Federal regulatory actions on State,
local, and Tribal governments and the
private sector. Public Law 104–4,
section 201 (codified at 2 U.S.C. 1531).
For a 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
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
71809
$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
‘‘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. DOE’s policy
statement is also available at https://
energy.gov/sites/prod/files/gcprod/
documents/umra_97.pdf.
DOE has concluded that this final rule
contains neither an intergovernmental
mandate nor a mandate that may result
in the expenditures of $100 million or
more in any one year, so these
requirements under the Unfunded
Mandates Reform Act do not apply.
H. Review Under the Treasury and
General Government Appropriations
Act, 1999
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277) requires
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.
I. Review Under Executive Order 12630
Pursuant to E.O. 12630,
‘‘Governmental Actions and Interference
with Constitutionally Protected Property
Rights,’’ 53 FR 8859 (Mar. 15, 1988),
DOE has determined that this final rule
will not result in any takings that might
require compensation under the Fifth
Amendment to the U.S. Constitution.
J. Review Under Treasury and General
Government Appropriations Act, 2001
E:\FR\FM\20DER1.SGM
20DER1
71810
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES
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). Pursuant to
OMB Memorandum M–19–15,
Improving Implementation of the
Information Quality Act (April 24,
2019), DOE published updated
guidelines which are available at
https://www.energy.gov/sites/prod/files/
2019/12/f70/DOE%20Final%20Up
dated%20IQA%20Guidelines%20Dec%
202019.pdf. DOE has reviewed this final
rule under the OMB and DOE guidelines
and has concluded that it is consistent
with applicable policies in those
guidelines.
K. Review Under Executive Order 13211
E.O. 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 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 (2) is likely to have a
significant adverse effect on the supply,
distribution, or use of energy, or (3) is
designated by the Administrator of
OIRA as a significant energy action. For
any significant energy action, the agency
must give a detailed statement of any
adverse effects on energy supply,
distribution, or use should the proposal
be implemented, and of reasonable
alternatives to the action and their
expected benefits on energy supply,
distribution, and use.
DOE has concluded that this
regulatory action—which amends the
definition of showerhead, withdraws
the definition of body spray, and retains
the definition of safety shower
showerhead—will not have a significant
adverse effect on the supply,
distribution, or use of energy and,
therefore, is not a significant energy
action. Accordingly, DOE has not
prepared a Statement of Energy Effects
on this final rule.
L. Congressional Notification
As required by 5 U.S.C. 801, DOE will
report to Congress on the promulgation
VerDate Sep<11>2014
16:01 Dec 17, 2021
Jkt 256001
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 14,
2021, by Kelly J. Speakes-Backman,
Principal Deputy 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.
commerce for attachment to a single
supply fitting, for spraying water onto a
bather, typically from an overhead
position, excluding safety shower
showerheads.
*
*
*
*
*
[FR Doc. 2021–27462 Filed 12–17–21; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
12 CFR Part 43
[Docket No. OCC–2019–0012]
FEDERAL RESERVE SYSTEM
12 CFR Part 244
[Docket No. OP–1688]
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 373
RIN 3064–ZA07
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Part 1234
[Notice No. 2021–N–14]
SECURITIES AND EXCHANGE
COMMISSION
17 CFR Part 246
Signed in Washington, DC, on December
15, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
[Release No. 34–93768]
For the reasons set forth in the
preamble, DOE amends part 430 of
chapter II, subchapter D, of title 10 of
the Code of Federal Regulations, as set
forth below:
24 CFR Part 267
PART 430—ENERGY CONSERVATION
PROGRAM FOR CONSUMER
PRODUCTS
AGENCY:
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[FR–6172–N–04]
Credit Risk Retention—Notification of
Determination of Review
2. Section 430.2 is amended by
removing the definition of ‘‘Body spray’’
and revising the definition of
‘‘Showerhead’’, to read as follows:
Office of the Comptroller of the
Currency, Treasury (OCC); Board of
Governors of the Federal Reserve
System (Board); Federal Deposit
Insurance Corporation (FDIC); U.S.
Securities and Exchange Commission
(Commission); Federal Housing Finance
Agency (FHFA); and Department of
Housing and Urban Development
(HUD).
ACTION: Determination of results of
interagency review.
§ 430.2
SUMMARY:
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.
■
Definitions.
*
*
*
*
*
Showerhead means a component or
set of components distributed in
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
The OCC, Board, FDIC,
Commission, FHFA, and HUD (the
agencies) are providing notice of the
determination of the results of the
E:\FR\FM\20DER1.SGM
20DER1
]]>Agencies
[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Rules and Regulations]
[Pages 71797-71810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27462]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 /
Rules and Regulations
[[Page 71797]]
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2021-BT-STD-0016]
RIN 1904-AE85
Energy Conservation Program: Definition of Showerhead
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On July 22, 2021, the U.S. Department of Energy (``DOE'')
published a notice of proposed rulemaking (``NOPR'') to revise the
current definition of ``showerhead'' adopted in the December 16, 2020,
final rule (``December 2020 Final Rule'') by reinstating the October
2013 definition of ``showerhead,'' withdraw the December 2020 final
rule's interpretation of the term ``showerhead,'' and withdraw the
associated definition for ``body spray.'' DOE did not propose any
changes to the definition of ``safety shower showerhead.'' In this
final rule, DOE revises the current definition of ``showerhead''
adopted in the December 2020 final rule by reinstating the October 2013
definition of ``showerhead'' as the Department finds that it is more
consistent with the purposes of the Energy Policy and Conservation Act,
as amended (``EPCA''). In addition, DOE removes the current definition
of ``body spray'' adopted in the December 16, 2020 final rule. Finally,
DOE maintains the definition of ``safety shower showerhead'' adopted in
the December 2020 final rule.
DATES: The effective date of this rule is January 19, 2022.
ADDRESSES: The docket for this activity, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at www.regulations.gov. All documents in the
docket are listed in the 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 found at www.regulations.gov/docket/EERE-2021-BT-STD-0016. The docket web page contains instructions on how
to access all documents, including public comments, in the docket.
For further information on how to review the docket, contact the
Appliance and Equipment Standards Program staff at (202) 287-1445 or by
email: [email protected].
FOR FURTHER INFORMATION CONTACT:
Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Office, EE-5B,
1000 Independence Avenue SW, Washington, DC 20585-0121. Email:
[email protected].
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:
Table of Contents
I. Introduction
A. Authority
B. Background
II. Synopsis of the Final Rule
III. Discussion
A. Reinstatement of the October 2013 Final Rule's Definition of
``Showerhead''
1. EPCA's Definition of ``Showerhead'' Is Ambiguous
2. The December 2020 Final Rule's Definition of ``Showerhead''
Is Inconsistent With EPCA's Purposes
3. Reliance on ASME for the Definition of ``Showerhead'' Is Not
Required
4. The Reinstated Definition of ``Showerhead'' Does Not
Effectively Ban Multi-Headed Showerheads
5. The Definition of ``Showerhead'' Falls Within the NTTAA and
OMB Circular A-119 Exception
6. Additional Comments/Issues
B. Withdrawal of DOE's Current Definition of ``Body Spray''
C. Safety Shower Showerhead
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act of 1995
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under Treasury and General Government Appropriations
Act, 2001
K. Review Under Executive Order 13211
L. Congressional Notification
V. Approval of the Office of the Secretary
I. Introduction
The following section briefly discusses the statutory authority
underlying this final rule, as well as the relevant historical
background related to showerheads, the subject of this final rule.
A. Authority
Title III of Energy Policy and Conservation Act, as amended
(``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.\1\ Part B of Title III \2\ establishes the ``Energy
Conservation Program for Consumer Products Other Than Automobiles,''
which includes showerheads (with the exception of safety shower
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.
---------------------------------------------------------------------------
\1\ All references to EPCA in this final rule refer to the
statute as amended through the Energy Act of 2020, Public Law 116-
260 (Dec. 27, 2020).
\2\ For editorial reasons, upon codification in the U.S. Code,
Part B was redesignated as Part A.
---------------------------------------------------------------------------
B. Background
EPCA defines a showerhead as ``any showerhead (including a handheld
showerhead), except a safety shower showerhead.'' (42 U.S.C.
6291(31)(D)) In addition to defining ``showerhead,'' Congress
established a maximum water use threshold of 2.5 gpm applicable to
``any showerhead.'' (42 U.S.C. 6295(j)(1)). The definition of
``showerhead'' and the water conservation standard for showerheads were
added to EPCA by the Energy
[[Page 71798]]
Policy Act of 1992 (Pub. L. 102-486 (Oct. 24, 1992)) (``EPAct 1992'').
Until 2013, DOE regulations did not contain a separate definition
for ``showerhead.'' (See 78 FR 62970) (Oct. 23, 2013) On May 19, 2010,
DOE published in the Federal Register a Notice of Availability of a
proposed interpretive rule regarding the definition of ``showerhead.''
75 FR 27926 (``2010 Draft Interpretive Rule'') In the 2010 Draft
Interpretive Rule,\3\ DOE discussed how there was uncertainty about how
the EPCA definition of ``showerhead'' applies to the diversified
showerhead product offerings. Id. at 1. To address this uncertainty,
DOE proposed to define a ``showerhead'' as ``any plumbing fitting that
is designed to direct water onto a bather.'' Id. at 2 (footnote
omitted). As such, DOE stated it would ``find a showerhead to be
noncompliant with EPCA's maximum water use standard if the showerhead's
standard components, operating in their maximum design flow
configuration, taken together use in excess of 2.5 gpm.'' Id. at 3.
---------------------------------------------------------------------------
\3\ Available at www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002.
---------------------------------------------------------------------------
On March 4, 2011, DOE formally withdrew the draft interpretive rule
and issued showerhead enforcement guidance.\4\ (``2011 Enforcement
Guidance'') In the 2011 Enforcement Guidance, DOE explained that it had
received several complaints alleging that certain showerhead products
exceeded EPCA's 2.5 gpm standard. DOE stated that it had learned that
some had come to believe that a showerhead that expels water from
multiple nozzles constituted not a single showerhead, but rather
multiple showerheads and thus could exceed the maximum permitted water
use by a multiple equal to the number of nozzles on the showerhead. Id.
at 1. Following a review of the record from the 2010 Draft Interpretive
Rule, DOE concluded that the term ``any showerhead'' has been and
continues to be sufficiently clear such that no interpretive rule was
needed. Id. at 2. Specifically, DOE stated that ``multiple spraying
components sold together as a single unit designed to spray water onto
a single bather constitutes a single showerhead for the purpose of the
maximum water use standard.'' Id. DOE used its discretion and addressed
the misunderstanding of how to measure compliance with the standard by
providing a two-year enforcement grace period to allow manufacturers to
sell any remaining noncompliant products. Id. at 2-3.
---------------------------------------------------------------------------
\4\ Available at www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf.
---------------------------------------------------------------------------
On May 30, 2012, DOE proposed to revise the test procedure for
showerheads and other products and to change the regulatory definition
of showerheads. 77 FR 31742 (``May 2012 NOPR''). DOE proposed to adopt
definitions for four terms related to showerheads--``fitting'',
``accessory'', ``body spray'', and ``showerhead''--in order to address
certain provisions of the revised American Society of Mechanical
Engineers/American National Standards Institute (``ASME/ANSI'') test
procedures that were not contemplated in the versions referenced by the
existing DOE test procedure, and to establish greater clarity with
respect to product coverage. 77 FR 31742, 31747.\5\ Specifically, DOE
proposed to define ``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, including body sprays and hand-held
showerheads, but excluding safety shower showerheads.'' 77 FR 31742.
31755. The proposed definition clarified that DOE considered a ``body
spray'' to be a showerhead for the purposes of regulatory coverage. 77
FR 31742, 31747.
---------------------------------------------------------------------------
\5\ DOE also proposed to adopt a definition for ``hand-held
showerhead'' in the May 2012 NOPR. 77 FR 31742, 31747. This final
rule does not reference that discussion, as DOE is not proposing any
edits to the existing definition of ``hand-held showerhead.''
---------------------------------------------------------------------------
Responding to comments on the May 2012 NOPR, DOE issued on April 8,
2013 a supplemental notice of proposed rulemaking (``SNOPR'') in which
DOE proposed a revised definition of ``showerhead'' and withdrew its
proposal to include ``body sprays'' in the definition of ``showerhead''
in light of concerns raised by commenters and DOE's need to further
study the issue. 78 FR 20832, 20834-20835, 20841 (``April 2013
SNOPR''). The SNOPR's modified definition of ``showerhead'' removed the
term ``accessory'' from the definition based on comments about the use
of the term. 78 FR 20832, 20834. Under the proposed modified
definition, a ``showerhead'' is ``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, 20834. DOE also requested
comment on whether to define the term ``safety shower showerhead'' to
address which products qualify for exclusion from coverage under EPCA
and DOE regulations. 78 FR 20832, 20835, 20840.
On October 23, 2013, DOE issued a final rule amending test
procedures for showerheads and other products and adopting definitions
for products, including showerheads. 78 FR 62970 (``October 2013 Final
Rule''). In this final rule, DOE adopted in substance the modified
definition of ``showerhead'' proposed in the April 2013 SNOPR. 78 FR
62970, 62986. The October 2013 Final Rule defined ``showerhead'' 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.'' Id.
at 78 FR 62986. DOE did not finalize the definition of ``body spray''
proposed in the May 2012 NOPR. Id. at 78 FR 62973. DOE also declined to
adopt a definition of ``safety shower showerhead'', and explained that
it was unable to identify a definition that would clearly distinguish
these products from the showerheads covered under EPCA. Id. at 78 FR
62974.
On August 13, 2020, DOE proposed revising the definition of a
``showerhead'' to be consistent with the most recent ASME standard. 85
FR 49284 (``August 2020 NOPR''). DOE also proposed to adopt definitions
of ``body spray'' and ``safety shower showerhead'' and to clarify
whether the current test procedure would apply to the proposed
definitional changes. Id. at 85 FR 49285. In addition, DOE proposed to
amend the test procedure for showerheads to address the testing of a
single showerhead within a multiheaded showerhead. Id. at 85 FR 49292.
On December 16, 2020, DOE published a final rule amending the
definition of ``showerhead'' and adopting definitions for ``body
spray'' and ``safety shower showerhead.'' 85 FR 81341. Specifically,
the December 2020 Final Rule amended the meaning of ``showerhead'' to
restate the statutory definition and explicitly define the term through
incorporation of the ASME definition to mean ``an accessory to a supply
fitting for spraying onto a bather, typically from an overhead
position.'' Id. at 85 FR 81342, 81359. In the December 2020 Final
Rule's definition, DOE interpreted the new definition to mean that each
``showerhead'' included in a product with multiple showerheads would be
considered separately for purposes of determining standards compliance.
Id. at 85 FR 81342. In addition, DOE established a definition for
``body spray'', citing the need to address ambiguity about whether body
sprays were considered showerheads
[[Page 71799]]
under the October 2013 Final Rule. Id. at 85 FR 81342, 81350. DOE
defined the term ``body spray'' as ``a shower device for spraying water
onto a bather from other than the overhead position. A body spray is
not a showerhead.'' Id. at 85 FR 81359. Lastly, DOE defined the term
``safety shower showerhead'' by incorporating by reference the
definition of ``safety shower showerhead'' from the ANSI/International
Safety Equipment Association (``ISEA'') Z358.1-2014,\6\ such that a
``safety shower showerhead'' is ``a showerhead designed to meet the
requirements of ISEA Z358.1.'' Id. at 85 FR 81359. The December 2020
Final Rule determined that leaving the term ``safety shower
showerhead'' undefined would cause confusion as to which products are
excluded from the definition of ``showerhead.'' Id. at 85 FR 81351. DOE
did not finalize the test procedure amendments that had been proposed
in the August 2020 NOPR. Id. at 85 FR 81351.
---------------------------------------------------------------------------
\6\ ANSI/ISEA Z358.1-2014, ``American National Standard for
Emergency Eyewash and Shower Equipment.''
---------------------------------------------------------------------------
On January 20, 2021, the President issued Executive Order 13990,
``Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25, 2021) (``E.O.
13990''). Section 1 of that Order lists a number of policies related to
the protection of public health and the environment, including reducing
greenhouse gas (``GHG'') emissions and bolstering the Nation's
resilience to the impacts of climate change. Id. at 86 FR 7041. Section
2 of the Order instructs all agencies to review ``existing regulations,
orders, guidance documents, policies, and any other similar agency
actions promulgated, issued, or adopted between January 20, 2017, and
January 20, 2021, that are or may be inconsistent with, or present
obstacles to, [these policies].'' Id. Agencies are directed, as
appropriate and consistent with applicable law, to consider suspending,
revising, or rescinding these agency actions. Id.
While E.O. 13990 triggered the Department's re-evaluation of the
December 2020 Final Rule, DOE relies upon the analysis presented below,
based upon EPCA, to revise the definition ``showerhead'' and to
withdraw the definition of ``body spray'' in the July 2021 NOPR and in
this final rule. On July 22, 2021, DOE issued a NOPR (``July 2021
NOPR'') in which it proposed to revise the definition of ``showerhead''
adopted in the December 2020 Final Rule by reinstating the prior
definition of ``showerhead.'' 86 FR 38594. Further, DOE tentatively
determined that, in reinstating the prior definition of ``showerhead,''
all components attached to a single supply fitting (i.e., all nozzles
or spraying components within a product containing multiple nozzles or
spraying components) would be considered part of a single showerhead
for determining compliance with the 2.5 gpm standard. Id. In addition,
DOE proposed to withdraw the current definition of ``body spray''
adopted in the December 2020 Final Rule. Id. Finally, DOE did not
propose any changes to the definition of ``safety shower showerhead''
adopted in the December 2020 Final Rule. Id.
DOE invited comment on all aspects of July 2021 NOPR, including
data and information to assist in evaluating whether the definition of
``showerhead'' from the October 2013 Final Rule should be reinstated.
Id. at 86 FR 38594. On August 31, 2021, DOE held a webinar to present
the substance of the July 2021 NOPR and afford interested parties an
opportunity to present comments.\7\
---------------------------------------------------------------------------
\7\ The webinar presentation and transcript are available in the
docket at www.regulations.gov/docket/EERE-2021-BT-STD-0016/document.
_____________________________________-
DOE received comments in response to the July 2021 NOPR from the
interested parties listed in Table I.1.DOE received two comments that
were not within the scope of the rulemaking.\8\
---------------------------------------------------------------------------
\8\ See Comment Nos. 9, and 24).
Table I.1--Written Comments Received in Response to July 2021 NOPR
----------------------------------------------------------------------------------------------------------------
Commenter(s) Reference in this Final Rule Commenter type
----------------------------------------------------------------------------------------------------------------
Alliance for Water Efficiency AWE et al.................................... Efficiency
(``AWE''); Amy Vickers and Associates, Organizations,
Inc.; Arizona Municipal Water Users Municipal Utilities and
Association; Athens-Clarke County Governments, Trade
Public Utilities Dept. (GA); Best Associations.
Management Partners; Center for Water-
Efficient Landscaping; Citizens Water
Advocacy Group; City of Bend, OR; City
of Durham, NC; City of Flagstaff, AZ;
City of Hays, KS; City of Mesa, AZ;
City of Round Rock, TX; City of Santa
Rosa, CA; City of Westminster, CO;
Connecticut Water Company; Dickinson
Associates; Foothill Municipal Water
District (CA); Houston Public Works
(TX); Maine Water Company;
Metropolitan North Georgia Water
Planning District; Monterey Peninsula
Water Management District (CA);
Municipal Water District of Orange
County (CA); National Wildlife
Federation; PHCC-National Association;
Regional Water Authority (CA); Rancho
California Water District; San Antonio
Water System (TX); San Jose Water
(CA); Seattle Public Utilities (WA);
SJWTX (TX); Southern Nevada Water
Authority; Tucson Water (AZ); Walnut
Valley Water District (CA); Water
Demand Management, LLC.
Anonymous Anonymous.................... Anonymous.................................... Individual.
Appliance Standards Awareness Project Joint Advocates.............................. Efficiency
(``ASAP''), Alliance for Water Organizations.
Efficiency, American Council for an
Energy-Efficient Economy, Consumer
Federation of America, and Natural
Resources Defense Council.
California Energy Commission........... CEC.......................................... State.
California Investor-Owned Utilities CA IOUs...................................... Utilities.
(Pacific Gas and Electric Company, San
Diego Gas and Electric, Southern
California Edison).
Competitive Enterprise Institute, CEI et al.................................... Policy Organizations.
FreedomWorks Foundation, Consumers'
Research, Citizens Against Government
Waste, Caesar Rodney Institute,
Project 21, Texas Public Policy
Foundation, The Cornwall Alliance for
the Stewardship of Creation, 60 Plus
Association, Roughrider Policy Center,
Americans for Prosperity, Committee
for a Constructive Tomorrow.
Andrew Doty............................ Doty......................................... Individual.
Dan Glucksman.......................... Glucksman.................................... Individual.
Kevin Halligan......................... Halligan..................................... Individual.
Katherine Hekstra...................... Hekstra...................................... Individual.
[[Page 71800]]
Alicia Johnston........................ Johnston..................................... Individual.
Shane Kelley........................... Kelley....................................... Individual.
Metropolitan North Georgia Water the District................................. Municipal Government.
Planning District.
Northwest Power and Conservation NPCC......................................... Efficiency Organization.
Council.
Plumbing Manufacturers International... PMI.......................................... Trade Association.
James Ramer............................ Ramer........................................ Individual.
James Southerland...................... Southerland.................................. Individual.
Marl Walters........................... Walters...................................... Individual.
----------------------------------------------------------------------------------------------------------------
A parenthetical reference at the end of a comment quotation or
paraphrase provides the location of the item in the public record.\9\
---------------------------------------------------------------------------
\9\ The parenthetical reference provides a reference for
information located in the docket of DOE's rulemaking to amend the
definition of showerhead. (Docket No. EERE-2021-BT-STD-0016, which
is maintained at www.regulations.gov). The references are arranged
as follows: (Commenter name, comment docket ID number, page of that
document).
---------------------------------------------------------------------------
II. Synopsis of the Final Rule
Following a review of the December 2020 Final Rule and the comments
received in response to the August 2020 NOPR, relevant authorities, and
comments received in response to the July 2021 NOPR, DOE is withdrawing
the December 2020 Final Rule's definition of ``showerhead,'' and is
reinstating the October 2013 Final Rule's definition of ``showerhead.''
See 78 FR 62970, 62986. As such, DOE defines the term ``showerhead'' 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.'' DOE is also withdrawing the December 2020 Final Rule's
interpretation that each ``showerhead'' included in a product with
multiple showerheads would be considered separately for purposes of
determining standards compliance. Whereas in the December 2020 Final
Rule DOE stated that while water conservation is obviously a purpose of
EPCA, the definitional changes follow congressional reliance on the
ASME standard. DOE has reconsidered this balance and has come to a
different policy conclusion that water conservation is a more important
EPCA purpose and should be weighed more heavily when amending the
definition of a covered product than consistency with ASME (with which
DOE has no statutory obligation to align its definition). The
Department finds that the definition of ``showerhead'' as presented in
this final rule better effectuates EPCA's water conservation purposes.
This final action will also provide consumers the benefits derived from
water savings that will accrue over time with this return to the
definition of ``showerhead'' that existed prior to the December 2020
Final Rule.
DOE is also withdrawing the definition of ``body spray'' adopted in
the December 2020 Final Rule. DOE finds that the current definition of
``body spray'' is inconsistent with the express purpose of EPCA to
conserve water by improving the water efficiency of certain plumbing
products and appliances as the current definition may lead to increased
water use. Further, the definition of ``body spray'' does not best
address the relationship between body sprays and showerheads. This is
because the only difference between the definitions of ``body spray''
and ``showerhead'' is the installation location, as shown by the
similar treatment of the two products in the marketplace. Finally, DOE
is maintaining the definition of ``safety shower showerhead,'' as
leaving the term undefined may cause confusion about what products are
subject to the energy conservation standards.
III. Discussion
A. Reinstatement of the October 2013 Final Rule's Definition of
``Showerhead''
In the July 2021 NOPR, DOE tentatively determined that EPCA's
definition of showerhead is ambiguous and that the December 2020 Final
Rule's definition of ``showerhead'' is not consistent with EPCA's
purposes to conserve water by improving water efficiency of certain
plumbing products and appliances and to improve energy efficiency of
major appliances and consumer products. 86 FR 38594, 38597; (See also
42 U.S.C. 6201) DOE also tentatively determined that: Congressional
intent does not require DOE to adopt the ASME definition for
``showerheads;'' that the October 2013 Final Rule did not effectively
ban multi-headed showerheads from the market; and that the December
2020 Final Rule's definition of ``showerhead'' is inconsistent with
EPCA's purposes, and falls within the National Technology Transfer and
Advancement Act of 1995 (``NTTAA'') and OMB Circular A-119 exception to
the use of voluntary consensus standards. Id. As such, DOE proposed to
withdraw the December 2020 Final Rule's definition of ``showerhead''
and to reinstate the definition of ``showerhead'' from the October 2013
Final Rule. Id.
Based on the discussion in the following sections and the analysis
presented in the July 2021 NOPR, DOE is reinstating the pre-December
2020 Final Rule definition of ``showerhead'' as proposed in the July
2021 NOPR. In response to the July 2021 NOPR, PMI, the CA IOUs, the
Joint Advocates, and CEC supported DOE's reevaluation of the December
2020 Final Rule and urged the finalization of the proposed rule. (PMI,
No. 22 at pp.1-2; CA IOUs, No. 20 at p. 1; Joint Advocates, No. 23 at
pp.1, 3; CEC, No. 19 at pp. 1-2; PMI, Public Meeting Transcript at p.6;
CA IOUs, Public Meeting Transcript at p.4) AWE, et al., the District,
and NPCC also supported DOE's proposal to reinstate the prior
definition of ``showerhead.'' (AWE, et al., No. 21 at p. 1; the
District, No. 16 at pp.1-2; NPCC, No. 12 at p. 1; AWE, Public Meeting
Transcript at p.7) Additionally, Hekstra and ASAP commented in support
of this rulemaking. (Hekstra, No. 17; ASAP, Public Meeting Transcript
at p. 4) However, CEI et al. opposed re-instatement of the definition
of showerhead as established in the October 2013 Final Rule on the
grounds that it is incompatible with the law and detrimental to
consumers. (CEI et al., No. 18 at p. 2)
1. EPCA's Definition of ``Showerhead'' Is Ambiguous
In the July 2021 NOPR, DOE tentatively determined that the term
``showerhead'' is ambiguous. 86 FR 38594, 38597-38598. EPCA defines the
term ``showerhead'' as ``any showerhead (including a handheld
showerhead), except a safety shower showerhead.'' (42 U.S.C.
6291(31)(D)) Congress adopted this definition of showerhead
[[Page 71801]]
in 1992 as part of the Energy Policy Act. Thereafter, however, between
1992 and 2010, the designs of showerhead diversified into a myriad of
products including waterfalls, shower towers, rainheads, and shower
systems.\10\ In the 2010 Draft Interpretive Rule, DOE noted that it had
become aware of uncertainty in how the EPCA definition and standard
applies to such products. Id. As such, DOE issued the draft
interpretive rule to ``make clear to all stakeholders'' DOE's
interpretation of the definition of ``showerhead'' with respect to the
2.5 gpm maximum water use requirement. Id. at 1-2.
---------------------------------------------------------------------------
\10\ See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002.
---------------------------------------------------------------------------
Similarly, in the 2011 Enforcement Guidance, DOE explained that it
had learned that some had come to believe that a showerhead that expels
water from multiple nozzles constituted not a single showerhead, but
rather multiple showerheads and thus could exceed the maximum permitted
water use.\11\ DOE further acknowledged that absence of enforcement
could have contributed to that misunderstanding. Id. at 2. While DOE
acknowledged such confusion, DOE withdrew the 2010 Draft Interpretive
Rule in the 2011 Enforcement Guidance document based on its conclusion
that the term ``any showerhead'' has been, and continues to be,
sufficiently clear such that no interpretive rule is needed. Id. In the
2011 Enforcement Guidance, DOE stated that multiple spraying components
sold together as a single unit designed to spray water onto a single
bather constitute a single showerhead for purpose of the maximum water
use standard. Id. DOE provided manufacturers a two-year grace period to
sell any remaining noncompliant products and to adjust product designs
for compliance with EPCA and DOE regulations. Id. at 3.
---------------------------------------------------------------------------
\11\ See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf.
---------------------------------------------------------------------------
Consequently, the ambiguity of the word ``showerhead'' in EPCA is
underscored by its history. DOE's statements in both the 2010 Draft
Interpretive Rule and the 2011 Enforcement Guidance illustrate that
confusion existed among manufacturers about what constituted a
showerhead under the statutory definition. The diversification of the
marketplace as it pertains to ``showerheads'' and the confusion about
what products were considered a showerhead by manufacturers following
inclusion of the term in EPCA, as amended by EPAct 1992, further
illustrate that the statutory definition of ``showerhead'' is
ambiguous. In the July 2021 NOPR, DOE stated that it believes that any
ambiguity in the statutory meaning should be explicated by a regulatory
definition that is consistent with EPCA's purposes. 86 FR 38594, 38598.
In response to the July 2021 NOPR, commenters highlighted the
circular nature of the statutory definition of ``showerhead.'' CEI et
al. commented that the statutory definition of showerhead is circular--
the definition of the term includes the term being defined (i.e.,
showerhead is a showerhead). Further, CEI et al. argued that the
December 2020 Final Rule concluded that the statutory uncertainty was
largely resolved when the per-showerhead approach was adopted by ASME,
even though the July 2021 NOPR asserted ongoing doubt. (CEI et al., No.
18 at p. 2) And Hekstra agreed that consumers and manufacturers
appreciate clarity and a circular definition is not clear. (Hekstra,
No. 17 at p. 1).
DOE agrees that the statutory definition of ``showerhead'' is a
circular definition, which further illustrates the ambiguity of a term
that is defined by itself. Further, contrary to CEI et al.'s assertion
that the statutory uncertainty was resolved in the December 2020 Final
Rule, the December 2020 Final Rule stated that ambiguity exists
regarding what is considered a ``showerhead'' under EPCA and, in that
rule, DOE said it was clarifying what constitutes a ``showerhead.'' 85
FR 81341, 81344. As outlined in the previous discussion, DOE continues
to find that the statutory definition of ``showerhead'' is ambiguous
for the reasons presented in the July 2021 NOPR and in this final rule.
Ambiguity in the statutory meaning is appropriately resolved by a
regulatory definition that furthers EPCA's purposes consistent with
that statute.
2. The December 2020 Final Rule's Definition of Showerhead Is
Inconsistent With EPCA's Purposes
As outlined in the July 2021 NOPR, Congress included a statement of
purpose in EPCA that sets forth seven purposes related to energy. Most
relevant to the Energy Conservation Program, one of the primary
purposes of EPCA is ``to conserve energy supplies through energy
conservation programs, and, where necessary, the regulation of certain
energy uses.'' (42 U.S.C. 6201(4); Pub. L. 94-163 (Dec. 22, 1975)); see
86 FR 38594, 38598. The EPAct 1992 amended EPCA by adding plumbing
products, including showerheads, to the products covered by the Energy
Conservation Program. (Pub. L. 102-486 (Oct. 24, 1992)) In doing so,
EPAct 1992 also added to EPCA the purpose of conservation of water ``by
improving the water efficiency of certain plumbing products and
appliances,'' in addition to the purpose of energy savings. (42 U.S.C.
6201(8))
In the 2010 Draft Interpretive Rule, DOE explained that all
components that are supplied together and function from one inlet form
a single showerhead for purposes of the maximum water use standards
under EPCA.\12\ DOE stated that neither the statutory definition nor
the test procedures for showerheads treat a showerhead differently
based upon the shape, size, placement, or number of sprays or openings
it may have. Id. at 2. Further, DOE highlighted that the test procedure
contemplates that the regulated showerhead fitting may have additional
``accessory'' water outlets and specifies that all standard accessories
must be attached and set at maximum flow during testing. Id. DOE
clarified that a showerhead is determined to be noncompliant if the
standard components, operating in their maximum design flow
configuration taken together use in excess of 2.5 gpm. Id. at 3.
(emphasis omitted) DOE stated that this approach furthers the goal of
EPCA to ``conserve water by improving the water efficiency'' of
showerheads. Id. In DOE's 2011 Enforcement Guidance, DOE articulated a
modified interpretation of the statutory definition of ``showerhead''
from the definition proposed in the 2010 Draft Interpretive Rule. DOE
stated that multi spraying units sold together as a single unit
designed to spray water onto one bather are considered a single
showerhead.\13\ DOE explained that all sprays and nozzles should be
turned onto the maximum flow setting to determine water use. Id. DOE
found this approach is consistent with the industry standard, the
statutory language, and Congressional intent to establish a maximum
water use requirement. Id. These previous statements by DOE illustrate
that a definition of ``showerhead'' that includes a multi-headed
showerhead is consistent with EPCA's purpose of water conservation.
---------------------------------------------------------------------------
\12\ See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002.
\13\ See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf.
---------------------------------------------------------------------------
While the 2020 rulemaking acknowledged that water conservation is
among EPCA's purposes, it did not fully account for how its definition
of ``showerhead'' would comport with this purpose of EPCA. 85 FR 81341,
81353. In the July 2021 NOPR, DOE stated that the definition of
``showerhead''
[[Page 71802]]
established in the December 2020 Final Rule allows each nozzle within a
showerhead with multiple nozzles to be separately subject to the
standard, and thereby allows water flow at a multiple of that standard
and the related increase of energy for water heating. 86 FR 38594,
38598.
As discussed in the July 2021 NOPR, the contemplated treatment of
showerheads in the 2010 Draft Interpretive Rule, the articulated
interpretation in the 2011 Enforcement Guidance, and the regulatory
definition established in the October 2013 Final Rule (i.e., all
components attached to a single supply fitting/inlet are a single
showerhead) further the goal of EPCA to ``conserve water by improving
the water efficiency'' of showerheads. 86 FR 38594, 38598. In treating
all components attached to a single supply fitting/inlet as a shower
head, the 2.5 gpm standard applies to the combined water flow of all
such attached components.
In response to the July 2021 NOPR, commenters discussed the
statutory interpretation of the term ``showerhead.'' AWE et al. quoted
the definition of the term ``showerhead'' from Merriam-Websters.com,
which defines the term as ``a fixture for directing the spray of water
in a bathroom shower.'' AWE et al. stated that the definition of
showerhead in the 2013 Rule appropriately aligns with this
understanding. AWE et al. further stated that the December 2020 Final
Rule meant that a person taking a shower from a multi-nozzle product
would be using multiple showerheads at once--a concept that is awkward
under the common, ordinary usage of the word showerhead. (AWE et al.,
No. 21 at p. 2) AWE et al. explained that objects that are sold as a
set together, installed together, and used together constitute a single
product from the consumer's point of view and the usage of these
objects simultaneously for the function of showering demonstrates the
collection of them--the nozzles all together--is the single product
known as a showerhead. (AWE et al., No. 21 at p. 3) CEC stated that the
October 2013 definition more clearly defines the term showerhead to
mean any showerhead, other than a safety showerhead, must meet the
maximum flow rate of 2.5 gpm. Specifically, CEC explained that DOE's
interpretation of the term in the December 2020 final rule is not
justified or a permissible construction of the statute and measuring
the water flow of all sprayers on a multi-nozzle device at the same
time is the only meaningful interpretation of the statutory and
regulatory structure of showerhead. (CEC, No. 19 at p. 3)
Conversely, CEI et al. argued that the most likely intent of the
statutory definition is that the 2.5 gpm restriction is applicable to
each individual showerhead, otherwise the statute would have used the
term shower instead. (CEI et al., No. 18 at p. 2)
AWE et al. and CEC's comments discussing the general understanding
of the term ``showerhead'' further confirm DOE's positions outlined in
the 2010 Draft Interpretive Rule and the 2011 Enforcement Guidance that
all components/units sold together as a single unit are considered a
single showerhead. CEI et al. suggests that the term ``showerhead''
applies to each individual showerhead, while the term ``shower''
applies to a collection of showerheads. The term ``shower'' is
generally understood to mean the location in which plumbing fixtures
(e.g., showerhead, tub faucet, body spray) are installed to allow for
the act of showering. These comments further illustrate that the term
``showerhead'' is ambiguous, as discussed in section III.A.1. As these
comments and statements illustrate that the term ``showerhead'' can
comprise a multi-headed showerhead and is consistent with EPCA's
purpose of water conservation.
In response to the July 2021 NOPR, commenters discussed the impacts
of the current definition of ``showerhead.'' NPCC stated that the
definitions of ``showerhead'' adopted in the December 2020 Final Rule
provide two significant loopholes to compliance with the standard
inconsistent with the purposes of EPCA, with real significant
consequences for energy and water conservation. (NPCC, No. 12 at pp.1-
2) NPCC estimated that the December 2020 Final Rule definition of
``showerhead'' could significantly increase water use per shower and
significantly impact consumption of electricity as well as natural gas.
(NPCC, No. 12 at p. 2) The Joint Advocates stated that the definition
of ``showerhead'' that was finalized in the December 2020 Final Rule
goes against the purposes of EPCA and allows for showerheads to use an
unlimited amount of water. Additionally, the Joint Advocates stated
that the current definition of ``showerhead'' would allow for excessive
water use and result in increased costs for consumers. (Joint
Advocates, No. 23 at p.1) The CA IOUs stated that the December 2020
Final Rule introduced the prospect of limitless water usage in many
showerhead products. (CA IOUs, No. 20 at p.1) Hekstra commented that
the 2020 definition created a loophole that needs to be closed to meet
the goal of creating a system that reduces the amount of water used per
minute by the average shower user. (Hekstra, No. 17)
CEC stated that the climate and environmental damages, such as harm
from increased emissions, worse air quality, unnecessary energy demand,
and water availability, resulting from the December 2020 Final Rule are
felt across state lines. (CEC, No. 19 at p.2) CEC stated that the
definition included in the December 2020 Final Rule results in an
increase in water and energy use nationwide by allowing multi-sprayer
devices to use more than the maximum flow rate, and is not a
permissible construction of the statute. (CEC, No. 19 at p.3)
AWE et al. referenced its prior comments in which it estimated that
the current definition could increase annual energy consumption by 25
trillion British thermal units for each gpm increase in shower flow
rate, and together with the increased annual domestic water use, could
increase annual water and energy bills for American consumers by an
estimated $1.14 billion. (AWE et al., No. 21 at p. 4) AWE et al.
explained that the U.S. is experiencing serious water shortages and the
December 2020 Final Rule only serves to increase the consumption of
drinking water that will have severe impacts on water supplies across
the country. Further, AWE et al. stated that the December 2020 Final
Rule could increase residential water consumption upwards of 160
gallons annually by allowing multiple showerhead systems to increase
flows from the previous 2.5 gpm. AWE et al. also noted the pressure on
water utilities will continue to grow, due to population increases in
areas like the West, where water is scare, and climate change, which is
causing long-term declines in rainfall in many regions. The increased
water consumption under the December 2020 Final Rule will increase
water utility costs as it becomes necessary to provide new water
supplies, and therefore may increase customer bills, as the costs for
procuring needed new water supplies is passed onto consumers. (AWE et
al., No. 21 at pp.2-3) AWE stated that the December 2020 Final Rule
would potentially waste billions of gallons of water, increase energy
use and power plant emissions, and raise consumer water bills. Further,
with much of the country struggling with drought, these 2020 changes
could further compromise water supply availability. (AWE, Public
Meeting Transcript at p. 7)
CEI et al. asserted that EPCA requires DOE to balance energy and/or
water
[[Page 71803]]
conservation against other factors important to consumers, including
costs and other consumer protections. (CEI et al., No. 18 at p. 3) CEI
et al. argued that the proposed rule did not provide evidence that it
would result in significant water savings as required by statute. CEI
et al. further stated that without evidence of widespread adoption of
multi-head showers with a maximum flow rate above 2.5 gpm, the agency
has not shown that reimposing the restrictions on them would result in
significant water savings. CEI et al. also argued that showers are
adjustable and even with models that have maximum flow rate above 2.5
gpm, users will not necessarily use that level of water flow for every
shower--the highest settings in such showerhead would only be used
occasionally and such use would likely be shorter in duration. CEI et
al. continued that the insignificance of the water savings undercuts
the climate change rationale for the Proposed Rule. (CEI et al., No. 18
at p. 5) Finally, CEI et al. stated that the July 2021 NOPR's critique
of the December 2020 Final Rule is based on the misleading belief that
the statutory provisions prioritize efficiency above everything else.
(CEI et al., No. 18 at p.6)
Anonymous suggested that if less water is coming out of their
shower per minute, a consumer may take longer showers. (Anonymous, No.
5 at p. 1) Similarly, Southerland argued that restricting the water
flow from a showerhead will not ``save'' water because if water flow is
restricted, a person will take a longer shower defeating the purpose of
the limited water flow. (Southerland, No. 2)
DOE has considered these comments in this rulemaking as they relate
to the December 2020 Final Rule's definition of ``showerhead.'' DOE
continues to believe that EPCA's purpose should be considered when
amending the definition of a covered product. As this rulemaking does
not amend the water conservation standards for showerheads, DOE is not
required to conduct the analysis required by 42 U.S.C. 6295(o)
suggested by CEI et al. Further, DOE continues to consider all relevant
statutory provisions, including those related to consumer protection,
which are discussed in section IV.4. DOE agrees with commenters that if
maintained, the December 2020 Final Rule ``showerhead'' definition will
likely increase water usage and increase associated energy use. These
increases would be contrary to EPCA's purposes of reducing water and
energy consumption. As such, DOE has determined that the December 2020
Final Rule's definition of ``showerhead'' should be withdrawn.
Also, in response to the July 2021 NOPR, DOE received comments
about the prior 2013 definition of ``showerhead.'' The NPCC stated that
the reinstated definition of ``showerhead'' would return stability to
the consumption and efficiency aspects of the showerhead standard.
Further, NPCC explained that the Northwest has about 10 million
showerheads, and reinstating this definition will ensure significant
electricity, natural gas, and water savings are not lost. (NPCC, No. 12
at p. 2) The District stated that the proposed withdrawal better fits
with the purpose of the EPCA by improving the energy efficiency and
water efficiency of consumer products. Further, the District commented
that efficient shower fixtures reduce water usage not only per
household, but also on a regional scale. This reduction in demand helps
conservation efforts especially in regions experiencing frequent
droughts and other water-conscious communities that would be
detrimentally impacted by unnecessary additional use of water. (The
District, No. 16 at pp.1-2) The Joint Advocates stated that the October
2013 definition will not result in excessive water use and with several
regions across the country facing droughts and water shortages, it is
important now more than ever to reduce water demand and conserve
energy. (Joint Advocates, No. 23 at p. 1) Hekstra stated that the 2013
definition will reduce the amount of water used by those that wish to
have multiple showerheads in one shower. (Hekstra, No. 17)
AWE et al. commented that DOE's proposal to reinstate the
definition from the 2013 Rule will better effectuate EPCA's water
conservation purposes. (AWE et al., No. 21 at p.2) AWE et al.
reiterated the significant water and energy savings from the existing
definition of ``showerhead'' and that the cumulative savings over 10
years from 2.5 gpm showerheads could supply up to 1 million homes with
water and 670,000 homes with energy for a year. AWE et al. also stated
that the replacement of older, high-flow showerheads provides 11
billion gallons per year in water savings and 5 trillion Btu per year
in energy savings in the United States. (AWE et al., No. 21 at p. 4)
CEC explained that conserving water is especially important because
90 percent of the Western United States is experiencing drought
conditions and 54 percent is in ``extreme drought.'' CEC also noted
that California has seen more than 7,200 fire incidents and more than 2
million acres burned, including devastating fires such and that it is
imperative to use every available tool to address the unnecessary and
inefficient use of energy and water, including and especially improving
energy and water conservation standards. (CEC, No. 19 at pp.1-2) The CA
IOUs stated that over 95 percent of California's landmass is currently
impacted by severe drought, so it is critical for its state that DOE
ensure showerhead water efficiency is protected and strengthened. (CA
IOUs, Public Meeting Transcript at p.3) And Kelley noted the importance
of conserving valuable resources. (Kelley, No. 11)
DOE has considered the comments received in response to the July
2021 NOPR and agrees with the commenters that the definition of
``showerhead'' from the October 2013 Final Rule and the associated
interpretation provided water and energy savings and protected the
environment. As discussed above in this section, DOE continues to find
that the history of the definition of ``showerhead'' and the comments
in response to July 2021 NOPR illustrate that the term ``showerhead''
can comprise a multi-headed showerhead and is consistent with EPCA's
purpose of water conservation. Further, DOE has determined that if
maintained, the December 2020 Final Rule ``showerhead'' definition will
likely increase water usage and increase associated energy use and as
such the current definition of ``showerhead'' should be withdrawn.
As such, DOE is withdrawing the definition of showerhead finalized
in the December 2020 Final Rule and re-instating the definition
established in the October 2013 Final Rule, which as discussed,
appropriately addresses the water conservation purpose of EPCA.
3. Reliance on ASME for the Definition of ``Showerhead'' Is Not
Required
In the July 2021 NOPR, DOE explained that it tentatively departed
from the view expressed in the December 2020 Final Rule that it would
be more consistent with Congressional intent to rely on ASME for the
definition of ``showerhead.'' 86 FR 38594, 38600. DOE stated that DOE
does not believe Congress required reliance on the ASME definition. Id.
As discussed previously in this document, Congress established the
definition of ``showerhead'' in EPAct 1992, along with the provisions
related to definitions, standards, test procedures, and labeling
requirements for plumbing products. (Pub. L. 102-486; Oct. 24, 1992
Sec. 123) EPAct 1992 and EPCA define the term
[[Page 71804]]
``showerhead'' as ``any showerhead (including a handheld showerhead),
except a safety shower showerhead.'' (42 U.S.C. 6291(31)(D)) In the
same paragraph, Congress provided explicit direction to define the
terms ``water closet'' and ``urinal'' in accordance with ASME
A112.19.2M, but did not provide such instructions with respect to
``showerhead.'' (Cf. Sec. 123(b)(5) of Pub. L. 102-486) DOE has learned
since the July 2021 NOPR that ASME A112.18.1M-1989 did not contain a
definition for showerheads, but it did contain requirements for
showerheads. Congress adopted the ASME standards only for the water
conservation standards, test procedures, and labeling requirements,
specified ASME A112.18.1M-1989 as the applicable standard, and required
DOE to adopt the revised version of the standard, unless it conflicted
with the other requirements of EPCA. (42 U.S.C. 6295(j)(1) and (3); 42
U.S.C. 6293(b)(7); 42 U.S.C. 6294(a)(2)(E)) While Congress could not
rely on a definition of ``showerhead'' in ASME A112.18.1M-1989 in
defining the term, Congress could have required DOE to adopt a
definition of ``showerhead'' as defined in any revised version of the
ASME A112.18.1M-1989 as it did with requirements for standards and test
procedures related to standards. Congress defined ``showerhead'' and
did not explicitly require DOE to amend the definition of
``showerhead'' in conformity with the applicable ASME standard.
Further, the mere fact that the terms immediately preceding
showerhead are ``ASME'' and ``ANSI'' does not suggest that Congress
intended for DOE to rely on the ASME definition. EPCA directly
references ASME A112.18.1M-1989, or a revised version of the standard
approved by ANSI, for showerhead test procedures, energy conservation
standards, and labeling requirements, but noticeably does not direct
DOE to adopt a definition of ``showerhead'' from an amended version of
the industry standard. Had Congress intended for DOE to apply the
definition of ``showerheads'' from the industry standard, it would have
provided the necessary reference. DOE received a comment only from CEC
on this issue. CEC stated that DOE correctly concludes that Congress
did not require DOE to rely on ASME for the definition of showerheads.
(CEC, No. 19 at p. 3).
Based on the discussion in the preceding paragraphs and presented
in the July 2021 NOPR, DOE maintains its decision that it is not
required to define ``showerhead'' according to the ASME definition and
that Congress intended DOE to have flexibility to define the term.
4. The Reinstated Definition of ``Showerhead'' Does Not Effectively Ban
Multi-Headed Showerheads
As discussed in the July 2021 NOPR, EPCA provides that the
Secretary is prohibited from prescribing an amended or new standard if
the Secretary finds that interested persons have established by a
preponderance of the evidence that the standard is likely to result in
the unavailability in the United States in any covered product type (or
class) of performance characteristics (including reliability),
features, sizes, capacities, and volumes that are substantially the
same as those generally available in the United States at the time of
the Secretary's finding. (42 U.S.C. 6295(o)(4)); 86 FR 38594, 38601.
In the August 2020 NOPR, DOE proposed to adopt an amended
definition of ``showerhead'' that complies with the Congressional
directive to preserve performance characteristics and features that
were available on the market at the time DOE originally acted to
eliminate them. 85 FR 49298, 49291. DOE explained that it cannot
regulate or otherwise act to remove products with certain performance
characteristics and features from the market given the prohibition in
42 U.S.C. 6295(o)(4). 85 FR 49282, 49290. In the December 2020 Final
Rule, DOE further explained that considering two, three, or eight
showerheads in a given product to be a ``feature'' is consistent with
DOE's previous rulemakings and determinations of what constitutes a
feature. 85 FR 81341, 81347. DOE further stated that following the 2011
Enforcement Guidance, which DOE stated appeared to effectively ban the
vast majority of products with multiple ``showerheads'' from the
market, DOE codified in DOE regulations its effective ban on products
with multiple showerheads from the market. 85 FR 49284, 49291. DOE
acknowledged, as is the case with the August 2020 definitional proposed
rule, that the October 2013 Final Rule was not a standards rulemaking
and did not comply with the statutory requirements of a standards
rulemaking. 85 FR 81341, 81347. DOE stated, however, that the effect
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. Id.
In the July 2021 NOPR, DOE revisited its application of section
6295(o)(4) of EPCA in the context of the ``showerhead'' definition. 86
FR 38594, 38601. As discussed in the July 2021 NOPR, the
``unavailability'' provision of section 6295(o)(4) of EPCA applies to
the establishment and amendment of standards. Further, assuming
arguendo that DOE did amend the water conservation standard or that the
rule had the effect of a water conservation standard, the October 2013
Final Rule did not eliminate multi-headed showerheads from the market.
DOE reviewed its certification database and found that currently there
are 7,704 basic models of showerheads, with multi-headed showerheads
continuing to account for 3% of all basic models. Therefore, 42 U.SC.
6295(o)(4) was not applicable in the October 2013 Final Rule as DOE did
not amend the standard for showerheads, nor did the rule eliminate
multi-headed showerheads from the market as there are currently over
231 basic models on the market. Further, as multi-headed showerheads
have not been eliminated from the market, DOE is not determining
whether multi-headed showerheads provide a functionality/performance
characteristic. Id. at 86 FR 38602.
CEI et al. stated that EPCA forbids any standard that compromises
product features and performance. (CEI et al., No. 18 at p. 3) CEI et
al. argued that the law only requires a showing that at least one model
including such feature was generally available at the time the standard
was promulgated, and that Congress could have explicitly overridden the
consumer protections in the law and categorically outlawed any and all
shower configurations that allow more than 2.5 gpm in total, and that
the statute did not clearly do so. (CEI et al., No. 18 at p. 4)
Finally, CEI et al. further stated that although DOE reasserted that
any changes to the definition of showerhead are not a new or amended
standards rulemaking, the reinterpretation has the effect of changing
the standard and as such must comply with the pro-consumer provisions
in the statute. (CEI et al., No. 18 at p. 4) CEI et al. also stated
that while multi-showerhead units can be manufactured as long as they
do not use more than 2.5 gpm in total, such models are unlikely to
deliver desired performance and thus would not meet the statutory
requirements of being ``substantially the same''. (CEI et al., No. 18
at pp. 4-5)
In support of the July 2021 NOPR, PMI explained that its members
have spent millions of dollars on research and development,
manufacturing, third-party certification, packaging, marketing, and
distribution of water-efficient showerheads to meet the
[[Page 71805]]
October 2013 Final Rule definition and that such-products are high-
performing plumbing products. (PMI, No. 22 at p. 2) PMI further stated
that its member companies did not produce, sell or distribute modified
showerheads to meet the new definition of showerhead that was put in
place in the December 2020 Final Rule. (Id.)
As explained in the December 2020 Final Rule and the July 2021
NOPR, DOE's previous definitional changes and rulemakings for
showerheads were not standards rulemakings nor is DOE establishing or
amending standards for showerheads. Therefore DOE is not determining
whether multi-headed showerheads provide a functionality/performance
characteristic. (See 42 U.S.C. 6295(o)(4)) Even assuming arguendo, as
in the July 2021 NOPR (86 FR 38594, 53602), that DOE did amend the
water conservation standard or that the rule had the effect of a water
conservation standard, the definition established in the October 2013
Final Rule did not eliminate multi-headed showerheads from the market.
A review of the market prior to the December 2020 Final Rule
illustrated that three percent of the 7,221 basic models of showerheads
are multi-headed showerheads. See 85 FR 49284, 49293. While the
information DOE used to determine the number of multi-headed
showerheads in the July 2021 NOPR is no longer available,\14\ DOE has
conducted a general review of models currently on the retail market,
which indicates that showerheads with multiple nozzles/spray
components, continue to be available. Given that multi-headed
showerheads continue to be available in the market, this action does
not reduce performance nor remove any features from the market as
asserted by CEI.
---------------------------------------------------------------------------
\14\ For the December 2020 Final Rule, DOE determined the
percentage of showerheads that are multi-headed showerheads using a
retailer website. However, the same retailer website no longer
provides the information needed to calculate an updated percentage.
In addition, CCMS does not distinguish multi-headed showerheads from
other showerheads.
---------------------------------------------------------------------------
CEI et al. also expressed concern about the performance quality of
multi-headed showerheads required to meet the 2.5 gpm standard for the
whole system. (See CEI, No. 18 at pp. 4-5) PMI explained that that its
members have been able to produce high-performing showerheads
consistent with the October 2013 Final Rule. (See PMI, No. 22 at p. 2)
If the provision at 42 U.S.C. 6295(o)(4) were applicable to this
rulemaking, which as discussed it is not, CEI et al. have not
established by a preponderance of evidence the unavailability of
showerheads with multiple nozzles/spray components, as required by
EPCA. The October 2013 Final Rule definition, i.e., the definition
reinstated by this final rule, did not eliminate multi-head shower
heads from the market. As such, the definition adopted in this final
rule is consistent with the Congressional directive to preserve
performance characteristics and features.
5. The Definition of ``Showerhead'' Falls Within the NTTAA and OMB
Circular A-119 Exception to Adherence to Voluntary Consensus Standards
Because It Is Inconsistent With EPCA and Impractical
Section 12(d)(1) of the NTTAA requires that Federal departments
``use technical standards that are developed or adopted by voluntary
consensus standards bodies, except when the use of the technical
standards is inconsistent with applicable law or otherwise
impractical.'' (Pub. L. 104-113, 110 Stat. 783 (Mar. 7, 1996), as
amended by Public Law 107-107, Div. A, Title XI, section 115, 115 Stat.
1241 ((Dec. 28, 2001) (codified at 15 U.S.C. 272 note)). Similarly, OMB
Circular A-119 directs Federal agencies to use voluntary consensus
standards unless inconsistent with applicable law or otherwise
impractical. (Section 1 of OMB Circular A-119; www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf.)
In the December 2020 Final Rule, DOE stated that the definition of
``showerhead'' adopted in that final rule is consistent with the
requirements of the NTTAA and the associated OMB Circular A-119. 85 FR
81341, 81342. DOE explained that EPCA does not preclude DOE from using
industry standards and that the statutory text of EPCA does not make
compliance with OMB Circular A-119 inconsistent with applicable law or
otherwise impracticable. Id. at 85 FR 81348. DOE further stated that it
disagrees that the ASME definition frustrates and is inconsistent with
the requirements of EPCA. Id.
As part of DOE's reconsideration of the December 2020 Final Rule,
DOE tentatively determined in the July 2021 NOPR, in light of the
comments provided during the rulemaking for the December 2020 Final
Rule, that it is not appropriate to rely on the consensus industry
standards as they relate to showerheads in accordance with the NTTAA
and OMB Circular A-119 because the December 2020 Final Rule definition
of ``showerhead'' based on ASME consensus industry standards is
inconsistent with EPCA and is impractical. 86 FR 38594, 38602-38632.
DOE did not receive comment to the July 2021 NOPR regarding the NTTAA
and OMB Circular A-119 exception.
For the reasons set forth in the July 2021 NOPR, DOE finds that it
should not adopt an industry standard here, as it would conflict with
EPCA's requirements and be impractical. (See 15 U.S.C. 272 note; OMB
Circular A-119 section 5.c.\15\) DOE's determination in the December
2020 Final Rule did not properly weigh the ASME definition of
``showerhead'' in the context of the purposes of EPCA, as it pertains
to the NTTAA and OMB Circular A-119. Upon reconsideration, adopting the
ASME industry standards for the definition of ``showerhead'' in the
present context conflicts with EPCA and is impractical because it does
not serve the purposes of water and energy conservation. And the
``showerhead'' definition and interpretation in the December 2020 Final
Rule is inconsistent with EPCA and is impractical because it would
permit increased water usage and increased associated energy use,
directly contrary to EPCA's purposes. As such, the definition of
``showerhead'' is within the exception of NTTAA and OMB Circular A-119.
---------------------------------------------------------------------------
\15\ DOE incorrectly referred to the wrong section of OMB
Circular A-119 (section 6.a.2.) in the August 2021 NOPR. 86 FR
38594, 38603. The correct citation is used in this document.
---------------------------------------------------------------------------
6. Additional Comments/Issues
DOE received a comment regarding the applicability of EPCA's anti-
backsliding provision. AWE et al. stated that on its face, the December
2020 Final Rule change amended the standard applicable to showerheads,
and did so in a way that increased the ``maximum allowable water use''
of showerheads. They argue therefore that the 2020 Rule thus violated
EPCA's ``anti-backsliding'' rule, 42 U.S.C. 6295(o)(1). (AWE et al.,
No. 21 at p. 1) AWE et al. further argued that the December 2020 Final
Rule rationalized that DOE had not established the previous
interpretation through a standards rulemaking. AWE asserted that the
anti-backsliding rule does not require, as a predicate, that there was
a previous standards-setting rulemaking. Instead, AWE stated that the
2.5-gpm standard was established by Congress, just as EPCA establishes
many other initial conservation standards, and DOE established the pre-
2020 status quo in an appropriate way--explaining its interpretation
through a guidance document, reiterating that interpretation
[[Page 71806]]
in the 2013 rulemaking, and confirming it in a regulatory definition.
AWE further stated that regardless of whether the process involved a
standards-setting rule, the outcome was certain: Until December 2020, a
multiple-nozzle product was allowed to flow only at a maximum rate of
2.5 gpm. AWE et al. suggested that DOE is therefore obligated to revoke
the 2020 Rule, because that Rule is simply contrary to EPCA and
unlawful. (AWE et al., No. 21 at p.2)
DOE agrees with AWE, et al. that the December 2020 Final Rule
amendment of the definition of ``showerhead'' could lead to increased
water use. As discussed in section III.2., DOE also agrees with AWE, et
al. that the definition of ``showerhead'' in the December 2020 Final
Rule is inconsistent with EPCA's purposes of energy and water
conservation. Further, DOE is withdrawing the definition of
'showerhead' adopted in the December 2020 Final Rule and returning to
the definition from the October 2013 Final Rule. However, 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)) The adoption of new or revised
definitions for products, including ``showerheads'', does not implicate
the anti-backsliding provisions because it is not a standard nor does
it alter the current standard. This final rule only amends the
definition of ``showerhead'' and does not amend the standards for
showerheads, which were established by Congress in EPCA. (See 42 U.S.C.
6295(j)(1))
DOE also received comments generally opposed to the regulation of
the water flow of showerheads. (See Doty, No. 3 at p. 1; Southerland,
No. 2 at p. 1; Walters, No. 4 at p. 1) Ramer commented that the
proposed definition will place a higher cost, due to testing, for
showerhead manufacturers and consumers. (Ramer, No. 10 at p. 1)
Halligan asked whether a grace period would be provided to allow
businesses and building owners to retrofit existing models. (Halligan,
No. 8 at p. 1) As discussed in section II.B., Congress established the
definition of ``showerhead'' in EPAct 1992 and tasked DOE with
implementing the provisions related to definitions, standards, and test
procedure requirements for plumbing products. (Pub. L. 102-486; Oct.
24, 1992 Sec. 123) Further, the definition adopted in this final rule
and the statutory standard apply to products as manufactured, not
products already installed. (See generally 42 U.S.C. 6302)
A commenter also questioned whether the December 2020 Final Rule's
definition of ``showerhead'' really limited DOE's capabilities in the
water conservation effort. (Johnston, No. 7 at p. 1) As discussed in
section IV.A.II, the December 2020 Final Rule's definition for
``showerhead'' would increase water and energy use.
B. Withdrawal of DOE's Current Definition of ``Body Spray''
DOE adopted a definition for ``body spray'' in the December 2020
Final Rule, concluding that the definition of ``showerhead'' in the
October 2013 Final Rule did not specifically include or exclude body
sprays and that this omission may have introduced uncertainty for
regulated parties and that therefore it is appropriate to clarify that
body sprays are not showerheads. 85 FR 81341, 81350. DOE defined the
term ``body spray'' as ``a shower device for spraying water onto a
bather from other than the overhead position. A body spray is not a
showerhead.'' 85 FR 81341, 81359. DOE also stated 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. 85 FR 81341, 81350.
In the July 2021 NOPR, DOE revisited the definition of ``body
spray,'' including the comments received in the rulemaking to the
December 2020 Final Rule. In the July 2021 NOPR, DOE tentatively
determined that the definition of ``body spray'' and the interpretation
that body sprays are not a showerhead does not effectively address the
relationship between these two products. 86 FR 38594, 38603. The 2018
ASME standard, as well as the 2012 ASME standard, treat the products
similarly, and the only difference between the definitions of
``showerhead'' and ``body spray'' is the installation location.
Further, the market review conducted by the CA IOUs during the
rulemaking for the December 2020 Final Rule indicates that these two
products are not treated differently in the marketplace.\16\ Given the
similar treatment by the industry standard and the market, as well as
the lack of discernable differences between the products, DOE
tentatively determined that the current definition does not best
address the relationship between these two products. Id. In addition,
DOE stated that the current definition of ``body spray'' may result in
excessive water use that is inconsistent with EPCA's purposes. Id.
While DOE explained in the December 2020 Final Rule that leaving the
term ``body sprays'' undefined introduced uncertainty into the market
about whether those products needed to comply with the 2.5 gpm
standard, the research done by CA IOUs shows that products with body
sprays complied with the energy conservation standard. Id. As such, DOE
tentatively determined that the current definition of ``body spray''
should be withdrawn. Id.
---------------------------------------------------------------------------
\16\ See Docket No. EERE-2020-BT-TP-0002-0084 at pp.3-5.
---------------------------------------------------------------------------
In response to the July 2021 NOPR, DOE received comments expressing
support for the withdrawal of the recently codified definition of
``body spray'' from the ASAP, CEC, NPCC, CA IOUs, AWE et al., the
District, and the Joint Advocates. (CEC, No. 19 at p. 3; NPCC, No. 12
at p. 2; CA IOUs, No. 20 at p. 1; AWE et al., No. 21 at p. 3; the
District, No. 16 at p. 2; Joint Advocates, No. 23 at p. 2; ASAP, Public
Meeting Transcript at p. 5)
Specifically, CEC stated that the December 2020 Final Rule
established an ambiguous definition for ``body spray'' that relies
solely on manufacturer intent and consumer installation decisions,
rather than discernable technical differences between the products.
(CEC, No. 19 at p. 3) CEC added that this change to how DOE treats body
sprays created a significant loophole for manufacturers to develop and
sell devices that perform the same function as a showerhead, but are
not required to meet the maximum 2.5 gpm flow rate simply because of
``manufacturer intent'' or device placement. (Id. at pp. 3-4) AWE et
al. stated that withdrawing the definition of ``body spray'' is
consistent with the purposes of the EPCA and will comply with current
ASME A112.18.1/CSA B125.1 standard. (AWE et al., No. 21 at p.3) AWE et
al. also explained that the body spray exclusion constitutes a
significant loophole, allowing a product to be sold, installed, and
used with water flow far in excess of the statutory standard, just
because the water approaches the bather from a different angle. (Id.)
Further, the Joint Advocates explained that industry standards and
market research show that body spray and showerhead products are
technically comparable and are often treated similarly in the market,
with the only difference being the location of installation and as
such, body spray products should not be explicitly
[[Page 71807]]
excluded from meeting the 2.5 gpm standard. (Joint Advocates, No. 23 at
p. 2) ASAP also stated that the definition of ``body spray'' would
result in a loophole since a body spray could be installed in pretty
much any orientation. (ASAP, Public Meeting Transcript at p. 6)
Commenters also discussed the impacts of the current ``body spray''
definition on energy and water conservation. CEC also stated that by
realigning its definition with the October 2013 Final Rule, DOE will
reduce confusion and uncertainty in the market, resulting in energy and
water conservation nationwide. (CEC, No. 19 at p. 4) The Joint
Advocates explained that the current definition of ``body spray'' has
the potential to result in excessive water use by allowing products
that meet this definition to be exempt from any energy conservation
standards. (Joint Advocates, No. 23 at p. 2)
As described in the July 2021 NOPR and reiterated by commenters in
response to the July 2021 NOPR, industry standards and the marketplace
treat ``showerheads'' and ``body sprays'' similarly with the only
difference being in the installation location. Further, DOE continues
to agree with the commenters' concerns about the increased water and
energy use of the existing definition of ``body spray.'' Having
considered the comments received and based on the discussion presented
in the preceding paragraphs and in July 2021 NOPR, DOE is withdrawing
the current definition of ``body spray.''
C. Safety Shower Showerhead
In the December 2020 Final Rule, DOE established a definition for
the term ``safety shower showerhead.'' 85 FR 81341, 81351.
Specifically, DOE defined ``safety shower showerhead'' to mean ``a
showerhead designed to meet the requirements of ANSI/ISEA Z358.1
(incorporated by reference, see Sec. 430.3).'' 85 FR 81341, 81352; see
also 10 CFR 430.2.
In the July 2021 NOPR, DOE did not propose to amend the definition
of ``safety shower showerhead'' and continued to find that leaving the
scope of products not subject to EPCA's energy conservation standard
undefined causes confusion and is inappropriate. 86 FR 38594, 38603.
Further, DOE continued to find that: What is meant by a ``safety shower
showerhead'' or emergency shower is understood in the regulated
industry; 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 in order to avoid
compliance with DOE standards; and that the definition and performance
criteria in the definition of ``safety shower showerhead'' addressed
concerns noted by the commenters in the 2020 rulemaking and distinguish
a showerhead from a safety shower showerhead. Id. at 86 FR 38603-38604.
Accordingly, DOE tentatively determined that retaining the definition
of ``safety shower showerhead'' was necessary and appropriate. Id. at
86 FR 38604.
In response to the July 2021 NOPR, DOE received comments expressing
support for maintaining its definition of a ``safety shower
showerhead'' as codified by the 2020 Final Rule from CA IOUs, CEC,
ASAP, AWE et al., and PMI. (CA IOUs, No. 20 at p. 1; CEC, No. 19 at p.
4; ASAP, Public Meeting Transcript at p.4; AWE et al., No. 21 at p. 3;
PMI, No. 22 at p. 2; PMI, Public Meeting Transcript at p. 6) Hekstra
requested that there is a definition of ``safety shower showerhead.''
Hekstra explained that a manufacturer cannot ensure they are within or
without the exception of a safety shower showerhead if they do not know
what one is. (Hekstra, No. 17) Glucksman asked whether the definition
of ``showerhead'' applies to work and eye wash safety stations or if
the July 2021 NOPR applies only to consumer-based showers. (Glucksman,
No. 06 at p. 1)
CEC supported the retention of the definition of ``safety shower
showerheads,'' but commented that that the definition for ``safety
shower showerheads'' presents a potential loophole in that the ANSI/
ISEA Z358.1-2014 specifications do not prohibit these devices from
operating in a ``partially on'' state, and therefore manufacturers
could develop products that meet the requirements of ANSI/ISEA Z358.1-
2014, but that could also operate in a ``partially on'' state that
resembles a non-compliant showerhead. (CEC, No. 19 at p. 4) CEC stated
that it has not identified any such products on the market, but CEC
recommended that DOE monitor sales to ensure manufacturers are not
exploiting this potential loophole and consider amendments to the
definition. (Id.) The Joint Advocates recommended that DOE further
improve the definition of ``safety shower showerhead'' to eliminate the
possibility of circumvention of federal water efficiency requirements
by exploiting perceived ambiguities in the federal definition of
showerhead. The Joint Advocates commented future products could
conceivably be designed to both meet the ANSI/ISEA standard's
requirements and be capable of providing a shower for bathing at flow
rates well above the federal standard. (Joint Advocates, No. 23 at p.
2) The Joint Advocates recommended that DOE require that safety shower
showerheads both meet the ANSI/ISEA standard's requirements and also be
``designed and marketed exclusively for emergency shower
applications.'' (Id.)
The comments by Glucksman and Hekstra illustrated the continuing
need to have a definition for the term ``safety shower showerhead.''
Consistent with the CEC and the Joint Advocates' observations, DOE is
not aware of products on the market certified to ANSI/ISEA Z358.1-2014
that allow for operation at a reduced flowrate appropriate for normal
bathing. Section 4.2 of ANSI/ISEA Z358.1-2014 specifies that the valve
for a safety shower showerhead ``shall be simple to operate and shall
go from `off' to `on' in 1 second or less.'' The specification for the
``off'' to ``on'' operation of the valve makes it unlikely that a value
with an intermediate setting that provides reduced flow (i.e., reducing
the flowrate from 20 gpm specified in the industry standard to a
flowrate acceptable for normal bathing) would comply with the
definition of ``safety shower showerhead.'' Further, the testing
procedures for ANSI/ISEA certification of emergency showers in Section
4.4.1 of ANSI/ISEA Z358.1-2014 also requires verification that the
valve ``fully opens in one second or less and that it stays open,''
indicating that valve must be open for the duration of the operation,
in turn not allowing for any reduced flow rates. Therefore, DOE finds
it unlikely that manufacturers would introduce safety shower
showerheads that allow for operation at a reduced flow due to the risk
of inadvertent operation of the product at a reduce flow in an
emergency situation. As such, DOE is not amending the definition of
``safety shower showerhead.''
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
final rule constitutes a ``significant regulatory action'' under
section 3(f) of Executive Order (E.O.) 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was
subject to review under E.O. 12866 by the Office of Information and
Regulatory Affairs (OIRA) at OMB.
This rule provides important benefits to consumers, producers, and
society. Clear definitions, as finalized in this
[[Page 71808]]
rule, are beneficial to resolve ambiguity for manufacturers and
consumers. And because returning to the October 2013 definition of
``showerhead,'' withdrawing the current definition of ``body spray,''
and maintaining the current definition of ``safety shower showerhead''
better effectuate EPCA's water and energy conservation purposes, this
rule also reinforces to manufacturers and the public that DOE's
overarching goal in implementing EPCA is water and energy conservation.
By returning to the definition of ``showerhead'' and to the
interpretation of ``body spray'' that existed prior to the December
2020 Final Rule, the rule provides consumers and society the benefits
derived from the water and energy savings of DOE's previous approach to
these terms. Consumers have access in the market to high-performing
showerheads, including multi-headed showerheads, that meet the
definitions finalized here, and so this action does not reduce
performance or remove from the market any features that are currently
available. DOE expects that these benefits to consumers and society
will materialize over the long term as DOE believes that manufacturers
have no near-term plans to produce, sell, or distribute modified
showerheads that would use more water in ways inconsistent with the
definitions being re-adopted in this rule.
DOE has weighed the benefits (decreased water usage, increased
clarity, and consumer energy savings) against the potential costs, and
has determined that the benefits of adopting this definition change
outweigh the costs, and that achieving these benefits for consumers and
society effectuates the purposes of EPCA.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of a final regulatory flexibility analysis (``FRFA'') for
any final rule where the agency was first required by law to publish a
proposed rule for public comment, unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. As required by E.O. 13272, ``Proper
Consideration of Small Entities in Agency Rulemaking,'' 67 FR 53461
(Aug. 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 rulemaking process. 68 FR
7990. DOE has made its procedures and policies available on the Office
of the General Counsel's website (www.energy.gov/gc/office-general-counsel).
DOE reviewed this final rule under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. DOE certifies that the final rule will not have significant
economic impact on a substantial number of small entities. The factual
basis for this certification is set forth in the following paragraphs.
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 use size standards codes
established by the North American Industry Classification System
(``NAICS'') that are available at: www.sba.gov/document/support--table-size-standards. Plumbing equipment manufacturers are classified under
NAICS 332913 ``Plumbing Fixture Fitting and Trim Manufacturing,'' and
NAICS 327110 ``Pottery, Ceramics, and Plumbing Fixture Manufacturing.''
The SBA sets a threshold of 1,000 employees or fewer for an entity to
be considered a small business within these categories.
This final rule withdraws the current definition of showerhead and
reinstates the prior definition of showerhead. It also withdraws the
definition of body sprays. Finally, this final rule retains the
definition of safety shower showerhead. DOE has not found any
showerheads that have been introduced into the market by any
manufacturers, large or small, since the December 2020 Final Rule
became effective that certified compliance on the basis of the revised
definitions in the December 2020 Final Rule, as compared to the
definition established in the October 2013 Final Rule. All certified
showerheads in DOE's Compliance Certification Database \17\ (``CCMS'')
have flow rates no greater than 2.5 gpm and would meet the definition
established in the October 2013 Final Rule. Additionally, in response
to the July 2021 NOPR, PMI stated that its member companies did not
produce, sell, or distribute modified showerheads to meet the new
definition of showerhead that was put in place in the December 2020
Final Rule. (PMI, No. 22 at p. 2) As such, DOE has not found any
evidence that any manufacturer, large or small, has introduced any
showerhead model that relied on the definition of showerhead that was
put in place in the December 2020 Final Rule. Based on the foregoing,
DOE certifies that this final rule will not have a significant economic
impact on a substantial number of small entities.
---------------------------------------------------------------------------
\17\ www.regulations.doe.gov/certification-data. Last accessed
on November 30, 2021.
---------------------------------------------------------------------------
C. 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 35 hours per response, including time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
This final rule withdraws the current definition of showerhead and
reinstates the prior definition of showerhead. It also withdraws the
definition of body sprays. Finally, this final rule retains the
definition of safety shower showerhead. It does not amend the reporting
requirement. Further as noted, DOE has not identified any showerheads
that have been introduced into the market since the December 2020 Final
Rule became effective for which certification is on the basis of the
revised definitions in the December 2020 Final Rule, as compared to the
definition established in the October 2013 Final Rule. Specifically,
all certified showerheads in the CCMS have flow rates no greater than
2.5 gpm and PMI stated in their comments that its member companies,
which comprises over 90 percent plumbing product, did not produce, sell
or distribute modified showerheads based on the December 2020 Final
Rule. (PMI, No. 22 at p. 2) Showerheads will not be required to
recertify based solely on the amendment to the definitional amendments
adopted in this final rule.
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
[[Page 71809]]
with, a collection of information subject to the requirements of the
PRA, unless that collection of information displays a currently valid
OMB Control Number.
D. Review Under the National Environmental Policy Act of 1969
Pursuant to the National Environmental Policy Act (NEPA) of 1969,
DOE has analyzed this final action in accordance with NEPA and DOE's
NEPA implementing regulations (10 CFR part 1021). DOE has determined
that this rule qualifies for categorical 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 an environmental impact statement.
E. Review Under Executive Order 13132
E.O. 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. DOE has examined this final rule and has
determined that it would not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. EPCA governs and prescribes Federal
preemption of State regulations as to energy conservation for the
products that are the subject of this final rule. States can petition
DOE for exemption from such preemption to the extent, and based on
criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is
required by Executive Order 13132.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' 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. 61 FR
4729 (Feb. 7, 1996). Regarding the review required by section 3(a),
section 3(b) of E.O. 12988 specifically requires that executive
agencies make every reasonable effort to ensure that the regulation:
(1) Clearly specifies the preemptive effect, if any, (2) clearly
specifies any effect on existing Federal law or regulation, (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction, (4) specifies the retroactive
effect, if any, (5) adequately defines key terms, and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires executive agencies to review regulations
in light of applicable standards in section 3(a) and section 3(b) to
determine whether they are met or it is unreasonable to meet one or
more of them. DOE has completed the required review and determined
that, to the extent permitted by law, this final rule meets the
relevant standards of E.O. 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'')
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, section 201 (codified at 2 U.S.C.
1531). For a 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 ``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. DOE's policy statement is also available at
https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
DOE has concluded that this final rule contains neither an
intergovernmental mandate nor a mandate that may result in the
expenditures of $100 million or more in any one year, so these
requirements under the Unfunded Mandates Reform Act do not apply.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires 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.
I. Review Under Executive Order 12630
Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (Mar. 15,
1988), DOE has determined that this final rule will not result in any
takings that might require compensation under the Fifth Amendment to
the U.S. Constitution.
J. Review Under Treasury and General Government Appropriations Act,
2001
[[Page 71810]]
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). Pursuant to OMB Memorandum M-19-15, Improving
Implementation of the Information Quality Act (April 24, 2019), DOE
published updated guidelines which are available at https://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has
reviewed this final rule under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under Executive Order 13211
E.O. 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 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 (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any significant energy action, the
agency must give a detailed statement of any adverse effects on energy
supply, distribution, or use should the proposal be implemented, and of
reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use.
DOE has concluded that this regulatory action--which amends the
definition of showerhead, withdraws the definition of body spray, and
retains the definition of safety shower showerhead--will not have a
significant adverse effect on the supply, distribution, or use of
energy and, therefore, is not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects on this final rule.
L. 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
14, 2021, by Kelly J. Speakes-Backman, Principal Deputy 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 15, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, DOE amends part 430 of
chapter II, subchapter D, 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 removing the definition of ``Body
spray'' and revising the definition of ``Showerhead'', to read as
follows:
Sec. 430.2 Definitions.
* * * * *
Showerhead means a component or set of components distributed in
commerce for attachment to a single supply fitting, for spraying water
onto a bather, typically from an overhead position, excluding safety
shower showerheads.
* * * * *
[FR Doc. 2021-27462 Filed 12-17-21; 8:45 am]
BILLING CODE 6450-01-P
