[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Proposed Rules]
[Pages 38594-38607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15528]
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DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2017-BT-STD-0048]
RIN 1904-AE85
Energy Conservation Program: Definition of Showerhead
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking and public meeting.
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SUMMARY: In this notice of proposed rulemaking (``NOPR''), the U.S.
Department of Energy (``DOE'') proposes to revise the current
definition of ``showerhead'' adopted in the December 16, 2020 final
rule (``December 2020 Final Rule'') by reinstating the prior definition
of ``showerhead.'' This reinstatement of the prior definition is
consistent with the purposes of the Energy Policy and Conservation Act
(``EPCA''). Further, DOE has tentatively determined that, in
reinstating the prior definition of ``showerhead,'' all showerheads
within a product containing multiple showerheads will be considered
part of a single showerhead for determining compliance with the 2.5
gallons per minute (``gpm'') standard. In addition, DOE proposes to
remove the current definition of ``body spray'' adopted in the December
2020 Final Rule. Finally, DOE does not propose any changes to the
definition of ``safety shower showerhead'' adopted in the December 2020
Final Rule. DOE invites comment on all aspects of this proposal,
including data and information to assist in evaluating whether the
definition of ``showerhead'' from the October 2013 Final Rule should be
reinstated, and announces a webinar to collect comments and data on its
proposal.
DATES:
[[Page 38595]]
Meeting: DOE will hold a webinar on Tuesday, August 31, 2021, from
1:00 p.m. to 4:00 p.m. See section V., ``Public Participation,'' for
webinar registration information, participant instructions, and
information about the capabilities available to webinar participants.
Comments: DOE will accept comments, data, and information regarding
this NOPR no later than September 20, 2021. See section V, ``Public
Participation,'' for details.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at https://www.regulations.gov. Follow
the instructions for submitting comments. Alternatively, interested
persons may submit comments by email to the following address:
[email protected]. Include ``Definition of Showerhead
NOPR and docket number EERE-2021-BT-STD-0016 and/or RIN 1904-AE85 in
the subject line of the message. Submit electronic comments in
WordPerfect, Microsoft Word, PDF, or ASCII file format, and avoid the
use of special characters or any form of encryption.
Although DOE has routinely accepted public comment submissions
through a variety of mechanisms, including postal mail, or hand
delivery/courier, the Department has found it necessary to make
temporary modifications to the comment submission process in light of
the ongoing coronavirus disease 2019 (``COVID-19'') pandemic. DOE is
currently accepting only electronic submissions at this time. If a
commenter finds that this change poses an undue hardship, please
contact the Appliance Standards Program staff at (202) 586-1445 to
discuss the need for alternative arrangements. Once the Covid-19
pandemic health emergency is resolved, DOE anticipates resuming all of
its regular options for public comment submission, including postal
mail and hand deliver/courier.
No telefacsimiles (faxes) will be accepted. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see section V (Public Participation) of this
document.
Docket: The docket for this activity, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at https://www.regulations.gov. All documents
in the docket are listed in the https://www.regulations.gov index.
However, 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 https://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. See Section V. for information on how to submit comments
through https://www.regulations.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:
[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].
For further information on how to submit a comment, review other
public comments and the docket, or participate in the public meeting,
contact the Appliance and Equipment Standards Program staff at (202)
287-1445 or by email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Authority
B. Background
II. Synopsis of the Notice of Proposed Rulemaking
III. Discussion
A. Withdrawal of DOE's Current 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. Congress Did Not Require Reliance on ASME for the Definition
of ``Showerhead''
4. The Previous Definition of ``Showerhead'' Did Not Effectively
Ban Multi-Headed Showerheads
5. The December 2020 Final Rule's 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
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
V. Public Participation
A. Participation in the Webinar
B. Procedure for Submitting Prepared Statements for Distribution
C. Conduct of the Webinar
D. Submission of Comments
VI. Approval of the Office of the Secretary
I. Introduction
The following section briefly discusses the statutory authority
underlying this proposed rule, as well as some of the relevant
historical background related to showerheads, the subject of this NOPR.
A. Authority
Title III of EPCA (42 U.S.C. 6291 et seq.) sets forth a variety of
provisions designed to improve energy efficiency and, for certain
products, water efficiency.\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 proposed rulemaking. (42
U.S.C. 6292(a)(15)) Under EPCA, the energy conservation program
consists essentially of four parts: (1) Testing, (2) labeling, (3)
Federal energy conservation standards, and (4) certification and
enforcement procedures.
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\1\ All references to EPCA in this NOPR 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 V was redesignated as Part A.
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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,'' EPCA 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 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)
On May 19, 2010, DOE published in the Federal Register a Notice of
Availability of a proposed interpretive rule regarding the definition
of
[[Page 38596]]
``showerhead.'' 75 FR 27926 (``2010 Draft Interpretive Rule''). In this
2010 Draft Interpretive Rule, available at https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002, 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. (See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf) (``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, in its discretion, 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.
DOE proposed revising the test procedure for showerheads and other
products and to change the regulatory definition of showerheads. 77 FR
31742 (May 30, 2012) (``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.\3\ 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.
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\3\ DOE also proposed to adopt a definition for ``hand-held
showerhead'' in the 2012 NOPR. 77 FR 31742, 31747. This NOPR does
not reference that discussion, as DOE is not proposing any edits to
the existing definition of ``hand-held showerhead.''
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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.'' 78 FR
62970, 62986. DOE did not finalize the definition of ``body spray''
proposed in the May 2012 NOPR. 78 FR 62970, 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. 78 FR 62970,
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. 85 FR 49284, 49285. In addition, DOE proposed to
amend the test procedure for showerheads to address the testing of a
single showerhead within a multiheaded showerhead. 85 FR 49284, 49292.
Following the consideration of comments received in response to the
August 2020 NOPR, DOE issued the December 16, 2020 Final Rule, which
amended the definition for ``showerhead'' and adopted definitions for
``body spray'' and ``safety shower showerhead.'' 85 FR 81341.
Specifically, the December 2020 Final Rule amended the meaning of
``showerhead'' in a manner that would incorporate the ASME definition
for this term by defining it to mean ``an accessory to a supply fitting
for spraying onto a bather, typically from an overhead position. 85 FR
81341, 81343, 81359. Under the December 2020 Final Rule's
interpretation, each showerhead included in a product with multiple
showerheads would separately be required to meet the 2.5 gpm standard
established in EPCA. 85 FR 81341, 81342. In addition, DOE established a
definition for ``body spray'', citing the need to address ambiguity
about whether body sprays were considered showerheads under the October
2013 Final Rule. 85 FR 81341, 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.''
85 FR 81341, 81359. Lastly, DOE defined the term ``safety shower
showerhead'' by incorporating by reference the definition of ``safety
[[Page 38597]]
shower showerhead'' from the ANSI/International Safety Equipment
Association (``ISEA'') Z358.1-2014,\4\ such that a ``safety shower
showerhead'' is ``a showerhead designed to meet the requirements of
ISEA Z358.1.'' 85 FR 81341, 81359. The December 2020 Final Rule
indicated that leaving the term ``safety shower showerhead'' undefined
would cause confusion. 85 FR 81341, 81351. DOE did not finalize the
test procedure amendments that had been proposed in the August 2020
NOPR. 85 FR 81341.
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\4\ ANSI/ISEA Z358.1-2014, ``American National Standard for
Emergency Eyewash and Shower Equipment.''
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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. 86 FR 7037, 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, DOE is
relying on the analysis presented below, based upon EPCA, to revise the
definition adopted in the December 2020 Final Rule.
II. Synopsis of the Notice of Proposed Rulemaking
In this proposed rule, DOE proposes to withdraw the December 2020
Final Rule's redefinition of ``showerhead,'' and to reinstate the
October 2013 Final Rule's definition of ``showerhead.'' DOE therefore
proposes that the term ``showerhead'' be defined, as it was defined in
DOE's regulations for close to a decade prior to the December 2020
Final Rule, as ``a component or set of components distributed in
commerce for attachment to a single supply fitting, for spraying water
onto a bather, typically from an overhead position, excluding safety
shower showerheads.'' 78 FR 62970, 62986. As such, DOE also proposes to
withdraw December 2020 Final Rule's interpretation that each showerhead
included in a product with multiple showerheads would separately be
required to meet the 2.5 gpm standard established in EPCA. Whereas in
the December 2020 Final Rule DOE changed the definition of
``showerhead'' because the Department weighed consistency with ASME
more heavily than water conservation, DOE has reconsidered this balance
and has come to a different policy conclusion that water conservation
is a more important EPCA purpose than consistency with ASME (with which
DOE has no statutory obligation to align its definition). DOE believes
that the steps it is proposing in this proposed rule better effectuate
EPCA's water conservation purposes.
DOE also proposes to withdraw the definition of ``body spray''
adopted in the December 2020 Final Rule. DOE believes 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 definition may lead to
increased water use and does not best address the relationship between
body sprays and showerheads. This is because the only difference
between a ``body spray'' and a ``showerhead'' is the installation
location, as shown by the similar treatment of the two products in the
marketplace. DOE does not propose any changes to 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. Withdrawal of DOE's Current Definition of ``Showerhead''
DOE has undertaken a review of the December 2020 Final Rule. DOE
proposes to withdraw the December 2020 Final Rule's definition of
``showerhead'' and reinstate the definition of ``showerhead'' from the
October 2013 Final Rule. DOE has 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. See 42 U.S.C. 6201. DOE has
also tentatively determined, upon review and in light of present facts
and circumstances, 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. As such, DOE proposes to reinstate the definition
of ``showerhead'' from the October 2013 Final Rule, such that the term
would again be defined 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.'' See 78 FR 62970, 62986.
1. EPCA's Definition of ``Showerhead'' Is Ambiguous
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 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.
(See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002)
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. (See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf) 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 enforcement guidance document based on
its conclusion that the term ``any showerhead'' has been, and continues
to
[[Page 38598]]
be, sufficiently clear such that no interpretive rule is needed. Id. In
the 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 purposes 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.
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. Since the passing of EPAct 1992 and the
establishment of a regulatory definition for ``showerhead'', the market
diversified into a myriad of products. The diversification of the
marketplace as it pertains to ``showerheads'', and the confusion about
what products are considered a showerhead by manufacturers, illustrate
that the statutory definition of ``showerhead'' is ambiguous. DOE
believes that any ambiguity in the statutory meaning should be
explicated by a regulatory definition that is consistent with EPCA's
purposes.
2. The December 2020 Final Rule's Definition of Showerhead Is
Inconsistent With EPCA's Purposes
EPCA sets forth seven purposes that provide a basis for DOE's
actions regarding the Energy Conservation Program. One of the most
relevant of these purposes 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)) 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)) The EPAct 1992
also added another purpose under EPCA to address plumbing products:
``to conserve water by improving the water efficiency of certain
plumbing products and appliances.'' (42 U.S.C. 6201(8))
DOE has considered the relationship between the definition of
``showerhead'', the 2.5 gpm EPCA standard, and EPCA's purposes to
conserve water and energy in both the 2010 Draft Interpretive Rule and
2011 Enforcement Guidance. DOE believes that the December 2020 Final
Rule is in conflict with EPCA's water-conservation and energy-
conservation purposes. That rule allows multiple nozzles each to be
subject to a separate standard, and thereby allows water flow at a
multiple of that standard and the related increase of energy for water
heating.
This belief is consistent with DOE statements before the December
2020 Final Rule. Specifically, 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. (See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002) 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. 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. (See
https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf) 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.
The 2020 rulemaking did not fully account for how its definition of
``showerhead'' would comport with the purposes of EPCA, but it did
acknowledge that water conservation is among EPCA's purposes. 85 FR
81341, 81353. In this proposed rulemaking, DOE reviews the December
2020 Final Rule's definition of ``showerhead'' as it relates to EPCA's
express purposes of water and energy conservation. The purposes of
EPCA, as amended, include ``to conserve water by improving the water
efficiency of certain plumbing products and appliances'' and ``to
provide for improved energy efficiency of motor vehicles, major
appliances, and certain other consumer products.'' (42 U.S.C. 6201)
DOE received comments in response to the August 2020 NOPR, many of
which explained that the then-proposed ``showerhead'' definition was
contrary to the purposes of the Energy Conservation Program and Federal
laws, which are to reduce water waste and improve energy efficiency.
(Davis, No. 0064 at p.1; Public Interest Research Group (``PIRG''), No.
0082 at p.3; Northwest Power and Conservation Council (``NPCC''), No.
0060 at p.2) \5\ For example, PIRG explained that the then-proposed new
interpretation was contrary to the 2.5 gpm standard and the goals of
EPCA as it would permit higher water usage. PIRG further explained that
the then-proposed interpretation would eviscerate the 2.5 gpm standard,
because the water flow available in a shower would be simply a matter
of choice, between manufacturer and consumer, about how many nozzles to
use. PIRG stated that Congress could not have intended this
conservation standard to be so illusory. (PIRG, No. 0082 at p.3) The
NPCC stated that the proposal, if finalized, would undermine the DOE
standards program by establishing revised definitions and an agency
interpretation that circumvent the associated standard. The NPCC
explained also that this proposal would undercut DOE's appliance
program and diminish cost-effective energy savings and benefits
contrary to the purpose of EPCA. (NPCC, No. 0060 at p.2) Similarly,
ASAP \6\ stated that the proposal allowed for unlimited flow because
there was no limit on the
[[Page 38599]]
number of spray units a single product might have and this
interpretation undermined the very purpose of the statute. (ASAP, No.
0086 at p.2) Hare also suggested that the aggregate flow rate would be
too high to achieve water savings, thereby subverting the purported
reason for the existence of the regulation. (Hare, No. 0012)
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\5\ 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-2020-BT-TP-0002, which is
maintained at https://www.regulations.gov/#!docketDetail;D=EERE-
2020-BT-TP-0002). The references are arranged as follows:
(Commenter, comment docket ID number, page of that document).
\6\ DOE received a joint comment from the Appliance Standards
Awareness Project, Alliance for Water Efficiency, consumer
Federation of America, the National Consumer Law Center, the Natural
Resources Defense Council, the Northwest Energy Efficiency Alliance,
and the American Council for an Energy-Efficiency Economy,
collectively referred to as ASAP.
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Other comments that DOE received on the August 2020 NOPR similarly
discuss the impacts of the proposal on water and energy consumption.
Numerous commenters stated that the proposal would increase water and
energy consumption. (California Investor Owned Utilities (``CA IOUs''),
Public Meeting Transcript at p. 13; Consumer Federation of America
(``CFA''), No. 0029; CFA, Public Meeting Transcript at p.14;
Environment America,\7\ No. 0069 at p.1) Commenters specified that the
proposal would waste water and energy because more energy would be
needed to heat and pump the additional water. (Godwin, No. 0042; Hall,
No. 0048; Shaw, No. 0059; Gurley, No. 35) The Green Builder Coalition
highlighted that the increased water flow and usage would increase
energy usage from the municipal side used to pump and treat the
increased water demands. (Green Builder Coalition, Public Meeting
Transcript at p.35)
---------------------------------------------------------------------------
\7\ The Environment America comment received 10,184 signatories.
---------------------------------------------------------------------------
Commenters also addressed the current water shortages the country
is facing. Numerous stakeholders commented that 40 of the 50 states are
already confronting water shortages and that the proposal would
increase consumption of drinking water, causing a severe impact on
water supplies across the country. (Walnut Valley Water District
(``WVWD''), No. 0051 at p.2; Alliance for Water Efficiency, et al.\8\
(``AWE, et al.''), No. 0079 at p.3; Santa Clara Valley Water District
(``Valley Water''), No. 0076 at p.1; Bay Area Water Supply &
Conservation Agency (``BAWSCA'', No. 0050 at p.3) Lish explained that
the Southwest was suffering a drought and that event after event
illustrated the importance of reducing energy consumption that produces
GHG emissions. (Lish, No. 0057) Cohen also commented that the proposed
changes would allow wasteful showers in a wide variety of
configurations and increase consumption of drinking water at a time
that wide regions of the country are already facing severe shortages.
(Cohen, No. 0036)
---------------------------------------------------------------------------
\8\ The AWE stakeholders submitted two versions of their
stakeholder letter. The first version is comment No. 0072; the
second letter, which includes additional signatures, is the version
referenced throughout this document.
---------------------------------------------------------------------------
Regarding water consumption, the CA IOUs projected that a single-
shower household shifting to a three-spray component product could
increase the overall hot water use for that household by as much as
80%. (CA IOUs, No. 0084 at p.6) Further, the CA IOUs estimated that if
10% of current showerheads were converted to three-spray component
products, national residential hot water use, the second largest
component of residential site energy consumption, could increase by as
much as eight percent. (CA IOUs, No. 0084 at p. 6) Similarly, Gary
Klein Associates (``GKA'') stated that switching to a 2-headed
showering device increases hot water use by 40%, while switching to a
3-headed device increases it by 80%. (GKA, No. 0063 at p.11) Tucson
Water also noted that changing the definition of ``showerhead''
effectively allowed multiple showerheads in the same stall,
disregarding the existing federal standard of 2.5 gpm per shower and
potentially doubling, or more, the amount of water used per shower.
(Tuscan Water, No. 0053 at p. 1) And numerous commenters estimated that
increasing the current federal legal standard of 2.5 gpm for the entire
shower could result in a national water increase of 161 billion gallons
in a single year. (Valley Water, No. 0076 at p. 1; WVWD, No. 0051 at
p.2; BAWSCA, No. 0050 at p.3; AWE, et al., No. 0079 at p.2))
Texas Water Development Board (``TWDB'') stated that a change in
the definition of ``showerhead'' would most likely lead to a reduction
in the anticipated water savings and an increase in the state's future
municipal water demands. If these water savings are not achieved
through conservation, future water demands will likely require
additional, and more expensive, water management strategies and
projects. (TWDB, No. 0074 at p.2)
Commenters also discussed the impact of increased water consumption
on energy use. Commenters estimated that for each 1 gpm increase in
showerhead flow rate, national annual domestic water use would increase
by 55 billion gallons and national annual energy use for that added hot
water would increase by 25,000 billion Btu. (WVWD, No. 0051 at p.3;
BAWSCA, No. 0050 at p.4; AWE, et al., No. 0079 at p.3) This use would,
in turn, increase annual water and energy bills for American consumers
by an estimated $1.14 billion. (WVWD, No. 0051 at p.3; BAWSCA, No. 0050
at p.4; AWE, et al., No. 0079 at p.3; Davis, No. 0064 at p.1) The
Public Service Commission of Wisconsin (``PSC of Wisconsin'') stated
that showerheads affect a customer's energy use as showers represent
the number one use of hot water inside the home and a reduction in
shower water efficiency would require customers to use additional
energy to heat water, increasing customers' energy use and resulting
energy bills. (PSC of Wisconsin, No. 0061 at p.2)
NPCC estimated that the Northwest currently has about 10 million
showerheads and increasing the water use per shower by a factor of two
or more would have a significant impact on the consumption of
electricity, natural gas, and water, which would result in increased
power supply needs. (NPCC, No. 0060 at p.2) NPCC stated the impacts of
the proposed rule include increased electricity or natural gas
consumption by the consumer, increased water use by the consumer,
decreased utility by the consumer, increased burden and cost on the
water utility, increased burden and cost on wastewater treatment
facilities, possible changes to plumbing, and needs for larger water
heater storage tanks. (NPCC, No. 0060 at p.2) Similarly, the Sierra
Club and Earthjustice commented that the proposal would result in
greater consumption of hot and cold water, increasing fossil fuel and
electricity consumption, and the accompanying emissions of air
pollutants that harm the health and welfare of its members. (Sierra
Club and Earthjustice, No. 0085 at p.1)
The Los Angeles Department of Water and Power (``LADWP'') discussed
how the proposed rulemaking would allow for devices that increase
consumption of water, resulting in a greater need for energy, which in
turn would generate more GHGs that would not be produced with fixtures
that use less water. LADWP stated this increase would be due to the
embedded energy and GHG impacts in treating, pumping, and moving water
hundreds of miles across the state for delivery to LADWP and other
suppliers. (LADWP, No. 0066 at pp.2-3) Shaw also noted that an increase
in the amount of energy used to heat water would increase the amount of
carbon emitted into the atmosphere, exacerbating global warming. (Shaw,
No. 0059) The City of Santa Rosa Water Department (``Santa Rosa
Water'') commented that loosening low flow standards would likely
increase energy consumption and associated GHGs, which are a
contributing factor to climate induced drought. (Santa Rosa Water, No.
0037 at p.2) Additional stakeholders commented that adopting the then-
proposed ``showerhead'' definition
[[Page 38600]]
would increase energy use from water wasting showerheads and increase
GHG emissions because of the need to heat and pump excess water,
increasing energy bills. (Hall, No. 0048; Gooch, No. 0043; Shaw, No.
0059)
DOE has fully considered these comments in this rulemaking as they
relate to December 2020 Final Rule's definition of ``showerhead.''
During the 2020 rulemaking, DOE discussed these comments and noted the
importance of water conservation, but DOE focused solely on the
Congressional reliance on ASME for the definitional changes. See 85 FR
81341, 81353. DOE believes that EPCA's purposes should also be
considered when amending the definition of a covered product. DOE
agrees with the commenters that the December 2020 Final Rule's
``showerhead'' definition and interpretation would likely increase
water usage, increase associated energy use, and increase GHG
emissions. These increases would be contrary to EPCA's purposes of
reducing energy and water consumption. As such, DOE has tentatively
determined that the December 2020 Final Rule's definition should be
withdrawn.
DOE's full consideration of comments received in the response to
the August 2020 NOPR and of the purposes of EPCA has also informed this
proposed approach of restoring the definition of ``showerhead'' from
the October 2013 Final Rule. In response to the August 2020 NOPR, PIRG
noted that DOE's past rules on this topic (in 2011 and in 2013) had
clearly taken account of the primary EPCA goal of decreased water use.
(PIRG, No. 0082 at p.3) ASAP commented that the definition from the
2013 Final Rule carried out the conservation purpose of EPAct 1992.
(ASAP, No. 0086 at p.2)
DOE also received comments on the impacts of the then-existing
definition of ``showerhead'' and EPAct 1992 generally. Ruff explained
that the water efficiency mandates in EPAct 1992 have helped drive down
and conserve household water use. (Ruff, No. 0010) Hamilton further
commented that the then-current rules save consumers and water
treatment jurisdictions money. (Hamilton, No. 0028) Cohen estimated
that the then-current rule has saved billions of dollars in water and
energy bills. (Cohen, No. 0036) The City of Sacramento Department of
Utilities (``City of Sacramento'') stated that, in California, as
global temperatures rise, reduced winter snowpack will negatively
impact local water availability, and drought frequency may increase.
Efficient water use is the most cost-effective way to achieve long-term
conservation goals and ensure reliable water supply for future
generations. (City of Sacramento, No. 0055 at p.3)
Commenters also estimated the water use reductions of cities and
states due to water efficiency measures. BAWSCA estimated that since
the 1992 federal adoption of the 2.5 gpm showerhead standard, its
service area has saved more than 33.1 billion gallons of water with 2.2
billion gallons of water savings in 2020 alone as a result of savings
from installing efficient 2.5gpm showerheads. BAWSCA also explained
that there are also additional benefits accumulating from the 2.2
billion gallons in avoided wastewater treatment and hot water savings
and cost. (BAWSCA, No. 0050 at p.2) The TWDB explained that the
replacement of older showerheads with the current 2.5 gpm showerheads,
under the October 2013 Final Rule definition of ``showerhead'', was
expected to save a cumulative 40,000 acre-feet of water in 2020 and
176,000 acre-feet in 2020 and reduce future municipal water demands of
the state by approximately 6-10%. (TWDB, No. 0074 at p.1) And the City
of Sacramento provided estimated savings from the 2.5 gpm flow rate and
noted that in 2020 alone the City had saved 860 million gallons of
water. (City of Sacramento, No. 0055 at p.2)
Numerous commenters also cited AWE estimates that 2.5 gpm
showerheads provide 11 billion gallons per year in water savings and 5
trillion Btu per year in energy savings. (BAWSCA, No. 0050 at p.4;
WVWD, No. 0051 at p.3; AWE, et al., No. 0079 at p.4) In ten years, the
savings for 2.5 gpm showerheads at the federal standard alone
accumulate to the equivalent of supplying 1 million homes with water
and 670,000 homes with energy. (BAWSCA, No. 0050 at p.4; WVWD, No. 0051
at p.3; AWE, et al., No. 0079 at p.4; Davis, No. 064 at p.1)
DOE agrees with the commenters that the definition of
``showerhead'' from the October 2013 Final Rule and the associated
interpretation resulted in significant water and energy savings,
protected the environment, and reduced GHG emissions. As discussed
above, while DOE focused on ASME in the 2020 rulemaking, DOE believes
that the EPCA's purposes should also be considered when amending the
definition of a covered product. As such, the definition of
``showerhead'' from the October 2013 Final Rule is consistent with the
purposes of EPCA for water and energy conservation, whereas the
December 2020 Final Rule's definition is not. Further, the definition
of ``showerhead'' from the October 2013 Final Rule also corresponds
with the general concept of the term ``showerhead'' in the 2010 Draft
Interpretive Rule and 2011 Enforcement Guidance. While the specific
language used by DOE has changed between the three documents, each
document's definition considered all components attached to a single
supply fitting/inlet to be a single showerhead. As explained
previously, the October 2013 Final Rule understanding of showerheads
better implements the purposes of EPCA than the December 2020 Final
Rule's definition. Accordingly, DOE has tentatively determined that the
proposed definition of ``showerhead'' better effectuates the purposes
of EPCA. Therefore, DOE proposes that, in withdrawing the definition of
``showerhead'' from the December 2020 Final Rule, the definition of
``showerhead'' from the October 2013 Final Rule be reinstated.
3. Congress Did Not Require Reliance on ASME for the Definition of
``Showerhead''
DOE thus tentatively departs 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.'' 85 FR 81341, 81342. As discussed, that term is
ambiguous, and DOE believes that the definition of ``showerhead'' from
the October 2013 Final Rule better comports with the EPCA's purposes.
DOE does not believe Congress required reliance of the ASME
definition. Congress adopted 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
``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 do so with respect to ``showerhead.'' (Cf. Sec.
123(b)(5) of Pub. L. 102-486) Instead, for showerheads, Congress
adopted the ASME standards only for the water conservation standard,
test procedures, and labeling requirements. For those, Congress adopted
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)) These Congressional
[[Page 38601]]
actions illustrate Congress' intent in regard to how DOE should define
the term ``showerhead.'' Notably, Congress did not explicitly require
that ``showerhead'' be defined in conformity with the definition in the
applicable ASME standard (assuming the definition of showerhead was
included in the 1989 standard) as it did with other aspects of the
Energy Conservation Program for plumbing products.
In the December 2020 Final Rule, DOE determined that interpreting
the term ``showerhead'' consistent with the ASME definition would be
more appropriate than DOE's previous interpretation of ``showerhead.''
85 FR 81341, 81342. DOE noted that EPCA relies on ASME standards for
the test method, the standards, and the marking and labeling
requirements for showerheads.\9\ Because these other provisions relate
to the ASME standard, the December 2020 Final Rule stated that Congress
clearly intended that the ``showerhead'' definition would also align
with the ASME standard. 85 FR 81341, 81345. DOE also highlighted that
the definitions immediately preceding showerheads, in the definition
section, included definitions of ASME and ANSI. Id. (citing 42 U.S.C.
6291(31)(B)-(C)) DOE explained that, while EPCA does not include an
explicit direction regarding the definition of showerhead, DOE has
found that reliance on the ASME standard for this final rule is
consistent with Congress's reliance on ASME. In particular, DOE stated,
if the definition developed by DOE deviated significantly from the ASME
definition, it would create confusion in how to apply the standards and
test methods that Congress directed be consistent with ASME. 85 FR
81341, 81346.
---------------------------------------------------------------------------
\9\ (See 42 U.S.C. 6295(j)(1) and (3); 42 U.S.C. 6295(b)(7); 42
U.S.C. 6294(a)(2)(E)).
---------------------------------------------------------------------------
DOE has fully considered the comments that it received in response
to the August 2020 NOPR, regarding the NOPR's suggestion that Congress
intended that DOE's actions with regard to showerheads be consistent
with ASME. PIRG stated that DOE's reasoning for following the ASME
definition of ``showerhead'' is not consistent with EPCA or with EPAct
1992. Specifically, PIRG noted that Congress did not refer the
``showerhead'' definition back to the ASME standard even though, in the
same paragraph, EPCA provides that certain other terms have ``the
meaning given such term in ASME A119.19.2M-1990.'' PIRG also stated
that the references to ASME in the definition, energy conservation
standard, and labeling requirements do not have anything to do with
what constitutes and does not constitute a showerhead.\10\ PIRG
explained that Congress's use of ASME standards in EPAct 1992 was
surgically precise. (PIRG, No. 0082 at pp.6-7)
---------------------------------------------------------------------------
\10\ The ASME references in the energy conservation standard
discuss design requirements in relation to EPAct 1992's 2.5 gpm
maximum flow rate; the references do not purport to define
``showerhead.'' (42 U.S.C. 6295(j)) Although section 6294(a)(2)(e)
requires the Federal Trade Commission to prescribe labeling rules
for showerheads consistent with ASME A112.18.1M-1989, nothing in
that section shines any light on the definition of ``showerhead.''
(PIRG, No. 0082 at p.7)
---------------------------------------------------------------------------
Upon further consideration, DOE agrees with the commenters that
Congress did not intend that the definition of ``showerhead'' be
required to conform with the definition of ``showerhead'' in the ASME
standard. This interpretation comports with Congress's decision not to
align the ``showerhead'' definition with the ASME standard, and it also
better reflects the policies embodied in EPCA. As highlighted by PIRG,
EPCA provides explicit direction to define the terms ``water closet''
and ``urinal'' in accordance with ASME A112.19.2M, in the same
legislation and paragraph, as it adopted the definition of
``showerhead''--which did not include a reference to applicable ASME
standard. (See Sec. 123(b)(5) of Pub. L. 102-486) 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 provide such a reference for the definition of
``showerhead.'' Congress clearly illustrated in EPAct 1992 that if it
had intended for DOE to apply the definition of ``showerheads'' from
ASME A112.18.1M-1989 (assuming a definition of ``showerhead'' was
include in the 1989 standard), it would have provided the necessary
reference. Therefore, DOE believes that Congress intended DOE to have
flexibility to define ``showerhead'' without necessarily conforming
with the definition in the applicable ASME standard.
4. The Previous Definition of ``Showerhead'' Did Not Effectively Ban
Multi-Headed Showerheads
EPCA contains a provision that prevents the Secretary 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))
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 49284, 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 49284, 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.\11\ 85 FR 81341, 81347. DOE stated that following the 2011
Enforcement Guidance, which 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. Further, DOE
acknowledged, as is the case with the August 2020 definitional proposed
rule, that the 2013 rule was not a standards rulemaking and did not
comply with the statutory requirements of a standards rulemaking. 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. 85 FR 81341, 81347.
---------------------------------------------------------------------------
\11\ DOE has previously determined that refrigerator-freezer
configurations, oven door windows, and top loading clothes washers
configurations are all features. 85 FR 81341, 81347 (citing 84 FR
33869, 33872 (July 16, 2019)).
---------------------------------------------------------------------------
As part of DOE's reconsideration of the December 2020 Final Rule,
DOE reviewed comments received in response to the August 2020 NOPR's
discussion of section 6295(o)(4) of EPCA. The California Energy
Commission (``CEC'') explained that, based on the plain language of the
statute, section 6295(o)(4) of EPCA applies only to standards and the
[[Page 38602]]
October 2013 Final Rule did not directly or effectively amend any
standards. But CEC also clarified that assuming, arguendo, that section
6295(o)(4) of EPCA is relevant, DOE's own analysis shows that at least
3% of the existing market consists of multi-headed showerheads that
meet the current standard. As such, no performance characteristics were
eliminated from the market. (CEC, No. 0083 at p.6)
DOE agrees with CEC and DOE's own statement in the December 2020
Final Rule that the October 2013 Final Rule was not a standards
rulemaking. 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 explained in the August 2020 NOPR that
3% of the 7,221 basic models of showerheads are multi-headed
showerheads. 85 FR 49284, 49293. DOE has again 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.S.C. 6295(o)(4) was
not applicable in the October 2013 Final Rule as DOE did not amend the
standard for showerheads there, 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.
(See 42 U.S.C. 6295(o)(4)) As such, the existing definition complied
with the Congressional directive to preserve performance
characteristics and features and the directive did not provide a basis
for adoption of a new definition.
5. The December 2020 Final Rule's 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 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 Pub. L. 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; https://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 new definition
of ``showerhead'' is consistent with the requirements of the NTTAA and
the associated OMB Circular A-1119. 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. DOE
further stated that it disagrees that the ASME definition frustrates
and is inconsistent with the requirements of EPCA. 85 FR 81341, 81348.
As part of DOE's reconsideration of the December 2020 Final Rule,
DOE tentatively determined, in light of the comments provided during
the August 2020 NOPR, that it is not appropriate to rely on the
consensus industry standards as they relate to showerheads in
accordance with the NTAA and OMB Circular A-119 because the current
``showerhead'' definition based on ASME consensus industry standards is
inconsistent with EPCA and is impractical.
DOE received comments on the August 2020 NOPR regarding the
appropriateness of DOE relying on the voluntary consensus standard
developed by ASME in accordance with the NTAA and OMB Circular A-119.
NRDC noted that the reference to A-119 and DOE's explanation of it
clearly points out the inappropriateness of the proposed change in the
definition, because the ASME definition frustrates and is inconsistent
with the statutory requirement to establish and maintain an upper bound
on the flowrate of showerheads and that adopting the proposed
definition would allow multi-nozzle arrays without any upper bound of
the combined flowrate of this kind of shower device. (NRDC, Public
Meeting Transcript at pp.21-22) Similarly, PIRG commented that the 2.5
gpm standard was not a policy objective determined by DOE; it was a
water conservation standard determined by Congress. PIRG further stated
that the NTTAA does not instruct DOE to base its interpretation of
Congressional policy by referring to industry standards and that even
if it did, NTTAA itself states that an agency should not follow an
industry standard where that is inconsistent with applicable law. PIRG
explained that DOE's proposal is inconsistent with EPAct 1992, and thus
NTTAA provides no safe harbor. As discussed, EPAct 1992 described in
detail how the showerheads program should interact with ASME
standards--NTTAA does not repeal or amend those directives. In regard
to OMB Circular A-119, PIRG commented that DOE's reliance on OMB
Circular A-119 is misplaced for the same reasons. In particular, as
PIRG commented, Congress specified the policy goals that DOE must
consider when it makes rules under EPCA; Circular A-119 could not
supplant those policy goals with an extra-statutory mandate. (PIRG, No.
0082, pg.8) Sierra Club and Earth Justice highlighted that even if OMB
Circular A-119 ordinarily requires agencies to use voluntary consensus
standards as described by NTTAA, the Circular contains an expansive
exception based on the impracticality of compliance. Sierra Club and
Earth Justice cited to Circular A-119's definition of ``impractical''
as including ``circumstances in which such use would fail to serve the
agency's program needs; would be infeasible; would be inadequate,
ineffectual, inefficient, or inconsistent with agency mission; or would
impose more burdens, or would be less useful, than the use of another
standard.'' \12\ Sierra Club and Earth Justice commented also that to
the extent adhering to the ASME standard would result in increased
showerhead consumption, DOE was within its rights in elevating the
fulfillment of EPCA's purpose above the encouragement of consensus
industry standards. (Sierra Club and Earthjustice, No. 0085, pp.3-4)
---------------------------------------------------------------------------
\12\ See OMB Circular A-119 s 6.a.2.
---------------------------------------------------------------------------
DOE agrees with the commentators that DOE should not adopt an
industry standard here, where it would conflict with EPCA's
requirements and be impractical. (See 15 U.S.C. 272 note; OMB Circular
A-119 s6.a.2) DOE's determination in the December 2020 Final Rule did
not properly weigh the ASME definition of ``showerhead'' as compared to
the purposes of EPCA, as it pertains to the NTTAA and OMB Circular A-
119. Upon reconsideration, DOE now believes that adopting the ASME
industry standards for the definition of ``showerhead'' here conflicts
with EPCA and is impractical because it would not serve the purposes of
water and energy conservation. The ``showerhead'' definition and
interpretation in the December 2020 Final Rule is inconsistent with
EPCA and is impractical because it would likely increase water usage,
increase
[[Page 38603]]
associated energy use, and increase GHG emissions, directly contrary to
EPCA's purposes. As discussed in section III.A.2 of this document, DOE
has tentatively determined that the December 2020 Final Rule's
definition of ``showerhead'' is inconsistent with EPCA's purposes of
water and energy conservation. Therefore, the NTTAA and OMB Circular A-
119 authorize and comprehend DOE's departure from the use of the
voluntary consensus standard developed by ASME in ASME/ANSI A112.18-1-
2018 for the definition of ``showerhead'' because it would be
inconsistent with EPCA and impractical.
B. Withdrawal of DOE's Current Definition of ``Body Spray''
DOE adopted a definition for ``body spray'' in the December 2020
Final Rule. 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. After a
reconsideration of this definition, DOE proposes to withdraw the
definition of ``body spray.''
In the December 2020 Final Rule, DOE concluded 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 therefore it is
appropriate to clarify that body sprays are not showerheads. 85 FR
81341, 81350. 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. As
such, DOE determined that it was appropriate to clarify the existing
ambiguity following the October 2013 Final Rule that did not include
body sprays within the definition of ``showerhead,'' and also did not
define what constituted a ``body spray.'' 85 FR 81341, 81350.
As part of its review of the definition of ``body spray'', DOE has
reconsidered comments received in response to the August 2020 NOPR.
Several commenters expressed concern that the proposal, to define the
term ``body spray'' to clarify that these products are not subject to
the current energy conservation standards, would result in wasteful and
unnecessary ``deluge'' showers, which would also consume much more hot
water. (WVWD, No. 0051 at p.2; BAWSCA, No. 0050 at p.3; AWE, et al.,
No. 0079 at p.2) Further, Valley Water explained that redefining body
sprays signals that these products are not subject to the current
energy conservation standards and thus can flow at any rate, resulting
in an increase in water and energy use and a financial strain for
American households. (Valley Water, No. 0076 at p.1)
Other commentators highlighted that the then-proposed definition of
``body spray'' was unnecessary because there was no technical
difference between a showerhead and a body spray to warrant a separate
definition. (CEC, No. 0083 at p.3; CA IOUs, Public Meeting Transcript
at p.22; CA IOUs, No. 0084 at pp.3-5) CEC noted their concern that the
then-proposed definition of ``body spray'' relied on manufacturer
intent and consumer installation decisions, rather than discernable
technical differences between products. (CEC, No. 0083 at p.3) The CA
IOUs commented that, in their research, they have been unable to
identify a technical difference between body sprays and showerheads
other than the orientation of installation. (CA IOUs, Public Meeting
Transcript at p.22) The CA IOUs conducted a review of retailer websites
that indicated that shower units with body spray capability are
generally marketed or sold as combination shower systems or shower
panels with an overhead showerhead component. The CA IOUs stated that
industry considers body sprays a form of showerhead. The CA IOUs
further explained that the marketplace does not clearly distinguish
stand-alone body sprays from conventional showerheads and that the
market tends to include body spray capability in all-in-one shower
systems. The CA IOUs found that all stand-alone body sprays and all-in-
one shower systems identified in their research complied with the
current water conservation standards. (CA IOUs, No. 0084 at pp.3-5)
The CA IOUs also discussed the treatment of body sprays and
showerheads in the 2018 ASME Standard. Specifically, the CA IOUs stated
that the definitions of ``showerhead'' and ``body spray'' in the 2018
ASME Standard suggests that body sprays designed and marketed as a
stand-alone product and other showerhead devices differ only based on
installation position in the end-use application. As such, the standard
treats showerheads and body sprays similarly. (CA IOUs, No. 0084 at
p.3) Further, the CA IOUs highlighted a comment made in response to the
April 2013 SNOPR by Maximum Performance Testing. In the comment
referenced by the CA IOUs, Maximum Performance stated that to create a
distinction between showerheads and body sprays fails the reality test.
In shower applications where body sprays and an overhead showerhead are
present, there is no reason to classify one component as different than
the other component. ((CA IOUs, No. 0084 at p.4 citing (Maximum
Performance, EERE-2011-BT-TP-0061-0029 at p.1))
After further consideration, DOE agrees with commenters that the
current definition of ``body spray'' and the interpretation that body
sprays are not a showerhead does not effectively address the
relationship between these two products. As highlighted by the CA IOUs,
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 suggests that these
two products are not treated differently in the marketplace. Given the
similar treatment by the industry standard and the market, as well as
the lack of discernable differences between the products, DOE believes
that the current definition does not best address the relationship
between these two products.
In addition, DOE agrees that the current definition of ``body
spray'' may result in excessive water use that is inconsistent with
EPCA's purposes. 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. As such,
DOE has tentatively determined that the current definition of ``body
spray'' should be withdrawn.
C. Safety Shower Showerhead
In the December 2020 Final Rule, DOE established a definition for
the term ``safety shower showerhead.'' 85 FR 81341. 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)'' 10 CFR 430.2. In this proposed rule, DOE does not
propose to amend the definition of ``safety shower showerhead.'' DOE
continues to agree with several of the findings in the December 2020
Definition Final Rule: That leaving undefined the scope of products not
subject to EPCA's energy conservation standard causes confusion and is
inappropriate; that what is meant by a ``safety shower showerhead'' or
emergency shower is understood in the regulated industry; that it is
unlikely
[[Page 38604]]
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. See 85 FR 81341, 81350-81351. Accordingly, DOE believes
that retaining the definition of ``safety shower showerhead'' is
necessary and appropriate.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
The Office of Information and Regulatory Affairs (``OIRA'') in the
Office of Management and Budget (``OMB'') waived Executive Order 12866
(``E.O.'') 12866, ``Regulatory Planning and Review'' review of this
proposed rule.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (``IRFA'')
for any rule that by law must be proposed for public comment, unless
the agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
As required by 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 (https://energy.gov/gc/office-general-counsel).
DOE reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. DOE certifies that the proposed rule, if adopted,
would 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: https://www.sba.gov/document/support-table-size-standards. Plumbing equipment manufacturers are classified under NAICS
332913 ``Plumbing Fixture Fitting and Trim Manufacturing,'' and NAICS
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 proposed rule would withdraw the current definition of
showerhead and reinstate the prior definition of showerhead. This
proposal would also withdraw the definition of body sprays. Finally,
this proposal would retain the definition of safety shower showerhead.
DOE has not found any showerheads that have been introduced into the
market since the December 2020 Final Rule became effective that would
meet the revised definitions in the December 2020 Final Rule. As such,
DOE has not found any evidence of a reliance interest on the December
2020 Final Rule. Based on the foregoing, DOE certifies that this
proposed rule would 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-of-information requirement
for the certification and recordkeeping is subject to review and
approval by OMB under the Paperwork Reduction Act (``PRA''). This
requirement has been approved by OMB under OMB control number 1910-
1400. Public reporting burden for the certification is estimated to
average 30 hours per response, including time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
D. Review Under the National Environmental Policy Act of 1969
DOE is analyzing this proposed regulation in accordance with the
National Environmental Policy Act (NEPA) and DOE's NEPA implementing
regulations (10 CFR part 1021). DOE's regulations include a categorical
exclusion for rulemakings interpreting or amending an existing rule or
regulation that does not change the environmental effect of the rule or
regulation being amended. 10 CFR part 1021, subpart D, appendix A5. DOE
anticipates that this rulemaking, which focuses on the narrow question
of how to define a particular product and does not otherwise impose any
requirements, will qualify for categorical exclusion A5. This
interpretive rulemaking would revise the definition of ``showerhead''
from the December 2020 Rule by reinstating the previous definition and
otherwise meets the requirements for application of a categorical
exclusion. See 10 CFR 1021.410. DOE has not found any showerheads that
have been introduced into the market since the December 2020 Final Rule
became effective that would meet the revised definitions in the
December 2020 Final Rule. DOE will complete its NEPA review before
issuing the final rule.
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 proposed rule and has
tentatively determined that it would not
[[Page 38605]]
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
proposed 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 proposed 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 proposed regulatory action likely to result in a rule that
may cause the expenditure by State, local, and Tribal governments, in
the aggregate, or by the private sector of $100 million or more in any
one year (adjusted annually for inflation), section 202 of UMRA
requires a Federal agency to publish a written statement that estimates
the resulting costs, benefits, and other effects on the national
economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal
agency to develop an effective process to permit timely input by
elected officers of State, local, and Tribal governments on a proposed
``significant intergovernmental mandate,'' and requires an agency plan
for giving notice and opportunity for timely input to potentially
affected small governments before establishing any requirements that
might significantly or uniquely affect them. On March 18, 1997, DOE
published a statement of policy on its process for intergovernmental
consultation under UMRA. 62 FR 12820. DOE's policy statement is also
available at https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
This proposed 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 proposed rule would 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 proposed rule would not result in
any takings that might require compensation under the Fifth Amendment
to the U.S. Constitution.
J. Review Under Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides for 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 proposed 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 proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgates or is expected to lead to promulgation of a
final rule, and that (1) is a significant regulatory action under
Executive Order 12866, or any successor order; and (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 proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use.
This proposed rule--which would amend the definition of showerhead,
withdraw the definition of body spray, and retain the definition of
safety shower showerhead--would 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 proposed rule.
V. Public Participation
A. Participation in the Webinar
The time and date of the webinar are listed in the DATES section at
the beginning of this document. Webinar registration information,
participant
[[Page 38606]]
instructions, and information about the capabilities available to
webinar participants will be published on DOE's website: https://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=2&action=viewlive. Participants are
responsible for ensuring their systems are compatible with the webinar
software.
B. Procedure for Submitting Prepared General Statements for
Distribution
Any person who has an interest in the topics addressed in this
proposed rulemaking, or who is representative of a group or class of
persons that has an interest in these issues, may request an
opportunity to make an oral presentation at the webinar. Such persons
may submit requests to speak by email to:
[email protected]. Persons who wish to speak should
include with their request a computer file in WordPerfect, Microsoft
Word, PDF, or text (ASCII) file format that briefly describes the
nature of their interest in this rulemaking and the topics they wish to
discuss. Such persons should also provide a daytime telephone number
where they can be reached.
Persons requesting to speak should briefly describe the nature of
their interest in this proposed rulemaking and provide a telephone
number for contact. DOE requests persons selected to make an oral
presentation to submit an advance copy of their statements at least two
weeks before the webinar. At its discretion, DOE may permit persons who
cannot supply an advance copy of their statement to participate, if
those persons have made advance alternative arrangements with the
Building Technologies Office. As necessary, requests to give an oral
presentation should ask for such alternative arrangements.
C. Conduct of the Webinar
DOE will designate a DOE official to preside at the webinar and may
also use a professional facilitator to aid discussion. The meeting will
not be a judicial or evidentiary-type public hearing, but DOE will
conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A
court reporter will be present to record the proceedings and prepare a
transcript. DOE reserves the right to schedule the order of
presentations and to establish the procedures governing the conduct of
the webinar. There shall not be discussion of proprietary information,
costs or prices, market share, or other commercial matters regulated by
U.S. anti-trust laws. After the webinar and until the end of the
comment period, interested parties may submit further comments on the
proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE
will present summaries of comments received before the webinar, allow
time for prepared general statements by participants, and encourage all
interested parties to share their views on issues affecting this
proposed rulemaking. Each participant will be allowed to make a general
statement (within time limits determined by DOE), before the discussion
of specific topics. DOE will permit, as time permits, other
participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit
participants to clarify their statements briefly. Participants should
be prepared to answer questions by DOE and by other participants
concerning these issues. DOE representatives may also ask questions of
participants concerning other matters relevant to this rulemaking. The
official conducting the webinar will accept additional comments or
questions from those attending, as time permits. The presiding official
will announce any further procedural rules or modification of the above
procedures that may be needed for the proper conduct of the webinar.
A transcript of the webinar will be included in the docket, which
can be viewed as described in the Docket section at the beginning of
this NOPR. In addition, any person may buy a copy of the transcript
from the transcribing reporter.
D. Submission of Comments
DOE will accept comments, data, and information regarding this
proposed rule before or after the public meeting, but no later than the
date provided in the DATES section at the beginning of this proposed
rule. Interested parties may submit comments, data, and other
information using any of the methods described in the ADDRESSES section
at the beginning of this document.
Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page will require you to provide your name and
contact information. Your contact information will be viewable to DOE
Building Technologies staff only. Your contact information will not be
publicly viewable except for your first and last names, organization
name (if any), and submitter representative name (if any). If your
comment is not processed properly because of technical difficulties,
DOE will use this information to contact you. If DOE cannot read your
comment due to technical difficulties and cannot contact you for
clarification, DOE may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment itself or in any documents attached to your
comment. Any information that you do not want to be publicly viewable
should not be included in your comment, nor in any document attached to
your comment. Persons viewing comments will see only first and last
names, organization names, correspondence containing comments, and any
documents submitted with the comments.
Do not submit to https://www.regulations.gov information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (``CBI'')). Comments submitted
through https://www.regulations.gov cannot be claimed as CBI. Comments
received through the website will waive any CBI claims for the
information submitted. For information on submitting CBI, see the
Confidential Business Information section.
DOE processes submissions made through https://www.regulations.gov
before posting. Normally, comments will be posted within a few days of
being submitted. However, if large volumes of comments are being
processed simultaneously, your comment may not be viewable for up to
several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you have successfully uploaded your
comment.
Submitting comments via email. Comments and documents submitted via
email also will be posted to https://www.regulations.gov. If you do not
want your personal contact information to be publicly viewable, do not
include it in your comment or any accompanying documents. Instead,
provide your contact information in a cover letter. Include your first
and last names, email address, telephone number, and optional mailing
address. The cover letter will not be publicly viewable as long as it
does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. No telefacsimiles (``faxes'')
will be accepted.
Comments, data, and other information submitted to DOE
[[Page 38607]]
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, that are written in English, and that are free of any
defects or viruses. Documents should not contain special characters or
any form of encryption and, if possible, they should carry the
electronic signature of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This reduces comment processing and posting
time.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email two well-marked copies: One copy of the document marked
``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
with the information believed to be confidential deleted. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking.
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 July 15,
2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary
and Acting 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 July 16, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, DOE proposes to amend
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. 2021-15528 Filed 7-21-21; 8:45 am]
BILLING CODE 6450-01-P