[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Rules and Regulations]
[Pages 71797-71810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27462]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 
 ========================================================================
 

  Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / 
Rules and Regulations  

[[Page 71797]]



DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2021-BT-STD-0016]
RIN 1904-AE85


Energy Conservation Program: Definition of Showerhead

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On July 22, 2021, the U.S. Department of Energy (``DOE'') 
published a notice of proposed rulemaking (``NOPR'') to revise the 
current definition of ``showerhead'' adopted in the December 16, 2020, 
final rule (``December 2020 Final Rule'') by reinstating the October 
2013 definition of ``showerhead,'' withdraw the December 2020 final 
rule's interpretation of the term ``showerhead,'' and withdraw the 
associated definition for ``body spray.'' DOE did not propose any 
changes to the definition of ``safety shower showerhead.'' In this 
final rule, DOE revises the current definition of ``showerhead'' 
adopted in the December 2020 final rule by reinstating the October 2013 
definition of ``showerhead'' as the Department finds that it is more 
consistent with the purposes of the Energy Policy and Conservation Act, 
as amended (``EPCA''). In addition, DOE removes the current definition 
of ``body spray'' adopted in the December 16, 2020 final rule. Finally, 
DOE maintains the definition of ``safety shower showerhead'' adopted in 
the December 2020 final rule.

DATES: The effective date of this rule is January 19, 2022.

ADDRESSES: The docket for this activity, which includes Federal 
Register notices, comments, and other supporting documents/materials, 
is available for review at www.regulations.gov. All documents in the 
docket are listed in the www.regulations.gov index. However, not all 
documents listed in the index may be publicly available, such as 
information that is exempt from public disclosure.
    The docket web page can be found at www.regulations.gov/docket/EERE-2021-BT-STD-0016. The docket web page contains instructions on how 
to access all documents, including public comments, in the docket.
    For further information on how to review the docket, contact the 
Appliance and Equipment Standards Program staff at (202) 287-1445 or by 
email: [email protected].

FOR FURTHER INFORMATION CONTACT: 
    Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Email: 
[email protected].
    Ms. Amelia Whiting, U.S. Department of Energy, Office of the 
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 
20585. Telephone: (202) 586-2588. Email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
    A. Authority
    B. Background
II. Synopsis of the Final Rule
III. Discussion
    A. Reinstatement of the October 2013 Final Rule's Definition of 
``Showerhead''
    1. EPCA's Definition of ``Showerhead'' Is Ambiguous
    2. The December 2020 Final Rule's Definition of ``Showerhead'' 
Is Inconsistent With EPCA's Purposes
    3. Reliance on ASME for the Definition of ``Showerhead'' Is Not 
Required
    4. The Reinstated Definition of ``Showerhead'' Does Not 
Effectively Ban Multi-Headed Showerheads
    5. The Definition of ``Showerhead'' Falls Within the NTTAA and 
OMB Circular A-119 Exception
    6. Additional Comments/Issues
    B. Withdrawal of DOE's Current Definition of ``Body Spray''
    C. Safety Shower Showerhead
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under Treasury and General Government Appropriations 
Act, 2001
    K. Review Under Executive Order 13211
    L. Congressional Notification
V. Approval of the Office of the Secretary

I. Introduction

    The following section briefly discusses the statutory authority 
underlying this final rule, as well as the relevant historical 
background related to showerheads, the subject of this final rule.

A. Authority

    Title III of Energy Policy and Conservation Act, as amended 
(``EPCA''), (42 U.S.C. 6291 et seq.) sets forth a variety of provisions 
designed to improve energy efficiency and, for certain products, water 
efficiency.\1\ Part B of Title III \2\ establishes the ``Energy 
Conservation Program for Consumer Products Other Than Automobiles,'' 
which includes showerheads (with the exception of safety shower 
showerheads)--the subject of this rulemaking. (42 U.S.C. 6292(a)(15)) 
Under EPCA, the energy conservation program consists essentially of 
four parts: (1) Testing, (2) labeling, (3) Federal energy conservation 
standards, and (4) certification and enforcement procedures.
---------------------------------------------------------------------------

    \1\ All references to EPCA in this final rule refer to the 
statute as amended through the Energy Act of 2020, Public Law 116-
260 (Dec. 27, 2020).
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated as Part A.
---------------------------------------------------------------------------

B. Background

    EPCA defines a showerhead as ``any showerhead (including a handheld 
showerhead), except a safety shower showerhead.'' (42 U.S.C. 
6291(31)(D)) In addition to defining ``showerhead,'' Congress 
established a maximum water use threshold of 2.5 gpm applicable to 
``any showerhead.'' (42 U.S.C. 6295(j)(1)). The definition of 
``showerhead'' and the water conservation standard for showerheads were 
added to EPCA by the Energy

[[Page 71798]]

Policy Act of 1992 (Pub. L. 102-486 (Oct. 24, 1992)) (``EPAct 1992'').
    Until 2013, DOE regulations did not contain a separate definition 
for ``showerhead.'' (See 78 FR 62970) (Oct. 23, 2013) On May 19, 2010, 
DOE published in the Federal Register a Notice of Availability of a 
proposed interpretive rule regarding the definition of ``showerhead.'' 
75 FR 27926 (``2010 Draft Interpretive Rule'') In the 2010 Draft 
Interpretive Rule,\3\ DOE discussed how there was uncertainty about how 
the EPCA definition of ``showerhead'' applies to the diversified 
showerhead product offerings. Id. at 1. To address this uncertainty, 
DOE proposed to define a ``showerhead'' as ``any plumbing fitting that 
is designed to direct water onto a bather.'' Id. at 2 (footnote 
omitted). As such, DOE stated it would ``find a showerhead to be 
noncompliant with EPCA's maximum water use standard if the showerhead's 
standard components, operating in their maximum design flow 
configuration, taken together use in excess of 2.5 gpm.'' Id. at 3.
---------------------------------------------------------------------------

    \3\ Available at www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002.
---------------------------------------------------------------------------

    On March 4, 2011, DOE formally withdrew the draft interpretive rule 
and issued showerhead enforcement guidance.\4\ (``2011 Enforcement 
Guidance'') In the 2011 Enforcement Guidance, DOE explained that it had 
received several complaints alleging that certain showerhead products 
exceeded EPCA's 2.5 gpm standard. DOE stated that it had learned that 
some had come to believe that a showerhead that expels water from 
multiple nozzles constituted not a single showerhead, but rather 
multiple showerheads and thus could exceed the maximum permitted water 
use by a multiple equal to the number of nozzles on the showerhead. Id. 
at 1. Following a review of the record from the 2010 Draft Interpretive 
Rule, DOE concluded that the term ``any showerhead'' has been and 
continues to be sufficiently clear such that no interpretive rule was 
needed. Id. at 2. Specifically, DOE stated that ``multiple spraying 
components sold together as a single unit designed to spray water onto 
a single bather constitutes a single showerhead for the purpose of the 
maximum water use standard.'' Id. DOE used its discretion and addressed 
the misunderstanding of how to measure compliance with the standard by 
providing a two-year enforcement grace period to allow manufacturers to 
sell any remaining noncompliant products. Id. at 2-3.
---------------------------------------------------------------------------

    \4\ Available at www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf.
---------------------------------------------------------------------------

    On May 30, 2012, DOE proposed to revise the test procedure for 
showerheads and other products and to change the regulatory definition 
of showerheads. 77 FR 31742 (``May 2012 NOPR''). DOE proposed to adopt 
definitions for four terms related to showerheads--``fitting'', 
``accessory'', ``body spray'', and ``showerhead''--in order to address 
certain provisions of the revised American Society of Mechanical 
Engineers/American National Standards Institute (``ASME/ANSI'') test 
procedures that were not contemplated in the versions referenced by the 
existing DOE test procedure, and to establish greater clarity with 
respect to product coverage. 77 FR 31742, 31747.\5\ Specifically, DOE 
proposed to define ``showerhead'' as ``an accessory, or set of 
accessories, to a supply fitting distributed in commerce for attachment 
to a single supply fitting, for spraying water onto a bather, typically 
from an overhead position, including body sprays and hand-held 
showerheads, but excluding safety shower showerheads.'' 77 FR 31742. 
31755. The proposed definition clarified that DOE considered a ``body 
spray'' to be a showerhead for the purposes of regulatory coverage. 77 
FR 31742, 31747.
---------------------------------------------------------------------------

    \5\ DOE also proposed to adopt a definition for ``hand-held 
showerhead'' in the May 2012 NOPR. 77 FR 31742, 31747. This final 
rule does not reference that discussion, as DOE is not proposing any 
edits to the existing definition of ``hand-held showerhead.''
---------------------------------------------------------------------------

    Responding to comments on the May 2012 NOPR, DOE issued on April 8, 
2013 a supplemental notice of proposed rulemaking (``SNOPR'') in which 
DOE proposed a revised definition of ``showerhead'' and withdrew its 
proposal to include ``body sprays'' in the definition of ``showerhead'' 
in light of concerns raised by commenters and DOE's need to further 
study the issue. 78 FR 20832, 20834-20835, 20841 (``April 2013 
SNOPR''). The SNOPR's modified definition of ``showerhead'' removed the 
term ``accessory'' from the definition based on comments about the use 
of the term. 78 FR 20832, 20834. Under the proposed modified 
definition, a ``showerhead'' is ``a component of a supply fitting, or 
set of components distributed in commerce for attachment to a single 
supply fitting, for spraying water onto a bather, typically from an 
overhead position, including hand-held showerheads, but excluding 
safety shower showerheads.'' 78 FR 20832, 20834. DOE also requested 
comment on whether to define the term ``safety shower showerhead'' to 
address which products qualify for exclusion from coverage under EPCA 
and DOE regulations. 78 FR 20832, 20835, 20840.
    On October 23, 2013, DOE issued a final rule amending test 
procedures for showerheads and other products and adopting definitions 
for products, including showerheads. 78 FR 62970 (``October 2013 Final 
Rule''). In this final rule, DOE adopted in substance the modified 
definition of ``showerhead'' proposed in the April 2013 SNOPR. 78 FR 
62970, 62986. The October 2013 Final Rule defined ``showerhead'' as ``a 
component or set of components distributed in commerce for attachment 
to a single supply fitting, for spraying water onto a bather, typically 
from an overhead position, excluding safety shower showerheads.'' Id. 
at 78 FR 62986. DOE did not finalize the definition of ``body spray'' 
proposed in the May 2012 NOPR. Id. at 78 FR 62973. DOE also declined to 
adopt a definition of ``safety shower showerhead'', and explained that 
it was unable to identify a definition that would clearly distinguish 
these products from the showerheads covered under EPCA. Id. at 78 FR 
62974.
    On August 13, 2020, DOE proposed revising the definition of a 
``showerhead'' to be consistent with the most recent ASME standard. 85 
FR 49284 (``August 2020 NOPR''). DOE also proposed to adopt definitions 
of ``body spray'' and ``safety shower showerhead'' and to clarify 
whether the current test procedure would apply to the proposed 
definitional changes. Id. at 85 FR 49285. In addition, DOE proposed to 
amend the test procedure for showerheads to address the testing of a 
single showerhead within a multiheaded showerhead. Id. at 85 FR 49292.
    On December 16, 2020, DOE published a final rule amending the 
definition of ``showerhead'' and adopting definitions for ``body 
spray'' and ``safety shower showerhead.'' 85 FR 81341. Specifically, 
the December 2020 Final Rule amended the meaning of ``showerhead'' to 
restate the statutory definition and explicitly define the term through 
incorporation of the ASME definition to mean ``an accessory to a supply 
fitting for spraying onto a bather, typically from an overhead 
position.'' Id. at 85 FR 81342, 81359. In the December 2020 Final 
Rule's definition, DOE interpreted the new definition to mean that each 
``showerhead'' included in a product with multiple showerheads would be 
considered separately for purposes of determining standards compliance. 
Id. at 85 FR 81342. In addition, DOE established a definition for 
``body spray'', citing the need to address ambiguity about whether body 
sprays were considered showerheads

[[Page 71799]]

under the October 2013 Final Rule. Id. at 85 FR 81342, 81350. DOE 
defined the term ``body spray'' as ``a shower device for spraying water 
onto a bather from other than the overhead position. A body spray is 
not a showerhead.'' Id. at 85 FR 81359. Lastly, DOE defined the term 
``safety shower showerhead'' by incorporating by reference the 
definition of ``safety shower showerhead'' from the ANSI/International 
Safety Equipment Association (``ISEA'') Z358.1-2014,\6\ such that a 
``safety shower showerhead'' is ``a showerhead designed to meet the 
requirements of ISEA Z358.1.'' Id. at 85 FR 81359. The December 2020 
Final Rule determined that leaving the term ``safety shower 
showerhead'' undefined would cause confusion as to which products are 
excluded from the definition of ``showerhead.'' Id. at 85 FR 81351. DOE 
did not finalize the test procedure amendments that had been proposed 
in the August 2020 NOPR. Id. at 85 FR 81351.
---------------------------------------------------------------------------

    \6\ ANSI/ISEA Z358.1-2014, ``American National Standard for 
Emergency Eyewash and Shower Equipment.''
---------------------------------------------------------------------------

    On January 20, 2021, the President issued Executive Order 13990, 
``Protecting Public Health and the Environment and Restoring Science to 
Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25, 2021) (``E.O. 
13990''). Section 1 of that Order lists a number of policies related to 
the protection of public health and the environment, including reducing 
greenhouse gas (``GHG'') emissions and bolstering the Nation's 
resilience to the impacts of climate change. Id. at 86 FR 7041. Section 
2 of the Order instructs all agencies to review ``existing regulations, 
orders, guidance documents, policies, and any other similar agency 
actions promulgated, issued, or adopted between January 20, 2017, and 
January 20, 2021, that are or may be inconsistent with, or present 
obstacles to, [these policies].'' Id. Agencies are directed, as 
appropriate and consistent with applicable law, to consider suspending, 
revising, or rescinding these agency actions. Id.
    While E.O. 13990 triggered the Department's re-evaluation of the 
December 2020 Final Rule, DOE relies upon the analysis presented below, 
based upon EPCA, to revise the definition ``showerhead'' and to 
withdraw the definition of ``body spray'' in the July 2021 NOPR and in 
this final rule. On July 22, 2021, DOE issued a NOPR (``July 2021 
NOPR'') in which it proposed to revise the definition of ``showerhead'' 
adopted in the December 2020 Final Rule by reinstating the prior 
definition of ``showerhead.'' 86 FR 38594. Further, DOE tentatively 
determined that, in reinstating the prior definition of ``showerhead,'' 
all components attached to a single supply fitting (i.e., all nozzles 
or spraying components within a product containing multiple nozzles or 
spraying components) would be considered part of a single showerhead 
for determining compliance with the 2.5 gpm standard. Id. In addition, 
DOE proposed to withdraw the current definition of ``body spray'' 
adopted in the December 2020 Final Rule. Id. Finally, DOE did not 
propose any changes to the definition of ``safety shower showerhead'' 
adopted in the December 2020 Final Rule. Id.
    DOE invited comment on all aspects of July 2021 NOPR, including 
data and information to assist in evaluating whether the definition of 
``showerhead'' from the October 2013 Final Rule should be reinstated. 
Id. at 86 FR 38594. On August 31, 2021, DOE held a webinar to present 
the substance of the July 2021 NOPR and afford interested parties an 
opportunity to present comments.\7\
---------------------------------------------------------------------------

    \7\ The webinar presentation and transcript are available in the 
docket at www.regulations.gov/docket/EERE-2021-BT-STD-0016/document.
_____________________________________-

    DOE received comments in response to the July 2021 NOPR from the 
interested parties listed in Table I.1.DOE received two comments that 
were not within the scope of the rulemaking.\8\
---------------------------------------------------------------------------

    \8\ See Comment Nos. 9, and 24).

                       Table I.1--Written Comments Received in Response to July 2021 NOPR
----------------------------------------------------------------------------------------------------------------
              Commenter(s)                        Reference in this Final Rule               Commenter type
----------------------------------------------------------------------------------------------------------------
Alliance for Water Efficiency            AWE et al....................................  Efficiency
 (``AWE''); Amy Vickers and Associates,                                                  Organizations,
 Inc.; Arizona Municipal Water Users                                                     Municipal Utilities and
 Association; Athens-Clarke County                                                       Governments, Trade
 Public Utilities Dept. (GA); Best                                                       Associations.
 Management Partners; Center for Water-
 Efficient Landscaping; Citizens Water
 Advocacy Group; City of Bend, OR; City
 of Durham, NC; City of Flagstaff, AZ;
 City of Hays, KS; City of Mesa, AZ;
 City of Round Rock, TX; City of Santa
 Rosa, CA; City of Westminster, CO;
 Connecticut Water Company; Dickinson
 Associates; Foothill Municipal Water
 District (CA); Houston Public Works
 (TX); Maine Water Company;
 Metropolitan North Georgia Water
 Planning District; Monterey Peninsula
 Water Management District (CA);
 Municipal Water District of Orange
 County (CA); National Wildlife
 Federation; PHCC-National Association;
 Regional Water Authority (CA); Rancho
 California Water District; San Antonio
 Water System (TX); San Jose Water
 (CA); Seattle Public Utilities (WA);
 SJWTX (TX); Southern Nevada Water
 Authority; Tucson Water (AZ); Walnut
 Valley Water District (CA); Water
 Demand Management, LLC.
Anonymous Anonymous....................  Anonymous....................................  Individual.
Appliance Standards Awareness Project    Joint Advocates..............................  Efficiency
 (``ASAP''), Alliance for Water                                                          Organizations.
 Efficiency, American Council for an
 Energy-Efficient Economy, Consumer
 Federation of America, and Natural
 Resources Defense Council.
California Energy Commission...........  CEC..........................................  State.
California Investor-Owned Utilities      CA IOUs......................................  Utilities.
 (Pacific Gas and Electric Company, San
 Diego Gas and Electric, Southern
 California Edison).
Competitive Enterprise Institute,        CEI et al....................................  Policy Organizations.
 FreedomWorks Foundation, Consumers'
 Research, Citizens Against Government
 Waste, Caesar Rodney Institute,
 Project 21, Texas Public Policy
 Foundation, The Cornwall Alliance for
 the Stewardship of Creation, 60 Plus
 Association, Roughrider Policy Center,
 Americans for Prosperity, Committee
 for a Constructive Tomorrow.
Andrew Doty............................  Doty.........................................  Individual.
Dan Glucksman..........................  Glucksman....................................  Individual.
Kevin Halligan.........................  Halligan.....................................  Individual.
Katherine Hekstra......................  Hekstra......................................  Individual.

[[Page 71800]]

 
Alicia Johnston........................  Johnston.....................................  Individual.
Shane Kelley...........................  Kelley.......................................  Individual.
Metropolitan North Georgia Water         the District.................................  Municipal Government.
 Planning District.
Northwest Power and Conservation         NPCC.........................................  Efficiency Organization.
 Council.
Plumbing Manufacturers International...  PMI..........................................  Trade Association.
James Ramer............................  Ramer........................................  Individual.
James Southerland......................  Southerland..................................  Individual.
Marl Walters...........................  Walters......................................  Individual.
----------------------------------------------------------------------------------------------------------------

    A parenthetical reference at the end of a comment quotation or 
paraphrase provides the location of the item in the public record.\9\
---------------------------------------------------------------------------

    \9\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking to amend the 
definition of showerhead. (Docket No. EERE-2021-BT-STD-0016, which 
is maintained at www.regulations.gov). The references are arranged 
as follows: (Commenter name, comment docket ID number, page of that 
document).
---------------------------------------------------------------------------

II. Synopsis of the Final Rule

    Following a review of the December 2020 Final Rule and the comments 
received in response to the August 2020 NOPR, relevant authorities, and 
comments received in response to the July 2021 NOPR, DOE is withdrawing 
the December 2020 Final Rule's definition of ``showerhead,'' and is 
reinstating the October 2013 Final Rule's definition of ``showerhead.'' 
See 78 FR 62970, 62986. As such, DOE defines the term ``showerhead'' as 
``a component or set of components distributed in commerce for 
attachment to a single supply fitting, for spraying water onto a 
bather, typically from an overhead position, excluding safety shower 
showerheads.'' DOE is also withdrawing the December 2020 Final Rule's 
interpretation that each ``showerhead'' included in a product with 
multiple showerheads would be considered separately for purposes of 
determining standards compliance. Whereas in the December 2020 Final 
Rule DOE stated that while water conservation is obviously a purpose of 
EPCA, the definitional changes follow congressional reliance on the 
ASME standard. DOE has reconsidered this balance and has come to a 
different policy conclusion that water conservation is a more important 
EPCA purpose and should be weighed more heavily when amending the 
definition of a covered product than consistency with ASME (with which 
DOE has no statutory obligation to align its definition). The 
Department finds that the definition of ``showerhead'' as presented in 
this final rule better effectuates EPCA's water conservation purposes. 
This final action will also provide consumers the benefits derived from 
water savings that will accrue over time with this return to the 
definition of ``showerhead'' that existed prior to the December 2020 
Final Rule.
    DOE is also withdrawing the definition of ``body spray'' adopted in 
the December 2020 Final Rule. DOE finds that the current definition of 
``body spray'' is inconsistent with the express purpose of EPCA to 
conserve water by improving the water efficiency of certain plumbing 
products and appliances as the current definition may lead to increased 
water use. Further, the definition of ``body spray'' does not best 
address the relationship between body sprays and showerheads. This is 
because the only difference between the definitions of ``body spray'' 
and ``showerhead'' is the installation location, as shown by the 
similar treatment of the two products in the marketplace. Finally, DOE 
is maintaining the definition of ``safety shower showerhead,'' as 
leaving the term undefined may cause confusion about what products are 
subject to the energy conservation standards.

III. Discussion

A. Reinstatement of the October 2013 Final Rule's Definition of 
``Showerhead''

    In the July 2021 NOPR, DOE tentatively determined that EPCA's 
definition of showerhead is ambiguous and that the December 2020 Final 
Rule's definition of ``showerhead'' is not consistent with EPCA's 
purposes to conserve water by improving water efficiency of certain 
plumbing products and appliances and to improve energy efficiency of 
major appliances and consumer products. 86 FR 38594, 38597; (See also 
42 U.S.C. 6201) DOE also tentatively determined that: Congressional 
intent does not require DOE to adopt the ASME definition for 
``showerheads;'' that the October 2013 Final Rule did not effectively 
ban multi-headed showerheads from the market; and that the December 
2020 Final Rule's definition of ``showerhead'' is inconsistent with 
EPCA's purposes, and falls within the National Technology Transfer and 
Advancement Act of 1995 (``NTTAA'') and OMB Circular A-119 exception to 
the use of voluntary consensus standards. Id. As such, DOE proposed to 
withdraw the December 2020 Final Rule's definition of ``showerhead'' 
and to reinstate the definition of ``showerhead'' from the October 2013 
Final Rule. Id.
    Based on the discussion in the following sections and the analysis 
presented in the July 2021 NOPR, DOE is reinstating the pre-December 
2020 Final Rule definition of ``showerhead'' as proposed in the July 
2021 NOPR. In response to the July 2021 NOPR, PMI, the CA IOUs, the 
Joint Advocates, and CEC supported DOE's reevaluation of the December 
2020 Final Rule and urged the finalization of the proposed rule. (PMI, 
No. 22 at pp.1-2; CA IOUs, No. 20 at p. 1; Joint Advocates, No. 23 at 
pp.1, 3; CEC, No. 19 at pp. 1-2; PMI, Public Meeting Transcript at p.6; 
CA IOUs, Public Meeting Transcript at p.4) AWE, et al., the District, 
and NPCC also supported DOE's proposal to reinstate the prior 
definition of ``showerhead.'' (AWE, et al., No. 21 at p. 1; the 
District, No. 16 at pp.1-2; NPCC, No. 12 at p. 1; AWE, Public Meeting 
Transcript at p.7) Additionally, Hekstra and ASAP commented in support 
of this rulemaking. (Hekstra, No. 17; ASAP, Public Meeting Transcript 
at p. 4) However, CEI et al. opposed re-instatement of the definition 
of showerhead as established in the October 2013 Final Rule on the 
grounds that it is incompatible with the law and detrimental to 
consumers. (CEI et al., No. 18 at p. 2)
1. EPCA's Definition of ``Showerhead'' Is Ambiguous
    In the July 2021 NOPR, DOE tentatively determined that the term 
``showerhead'' is ambiguous. 86 FR 38594, 38597-38598. EPCA defines the 
term ``showerhead'' as ``any showerhead (including a handheld 
showerhead), except a safety shower showerhead.'' (42 U.S.C. 
6291(31)(D)) Congress adopted this definition of showerhead

[[Page 71801]]

in 1992 as part of the Energy Policy Act. Thereafter, however, between 
1992 and 2010, the designs of showerhead diversified into a myriad of 
products including waterfalls, shower towers, rainheads, and shower 
systems.\10\ In the 2010 Draft Interpretive Rule, DOE noted that it had 
become aware of uncertainty in how the EPCA definition and standard 
applies to such products. Id. As such, DOE issued the draft 
interpretive rule to ``make clear to all stakeholders'' DOE's 
interpretation of the definition of ``showerhead'' with respect to the 
2.5 gpm maximum water use requirement. Id. at 1-2.
---------------------------------------------------------------------------

    \10\ See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002.
---------------------------------------------------------------------------

    Similarly, in the 2011 Enforcement Guidance, DOE explained that it 
had learned that some had come to believe that a showerhead that expels 
water from multiple nozzles constituted not a single showerhead, but 
rather multiple showerheads and thus could exceed the maximum permitted 
water use.\11\ DOE further acknowledged that absence of enforcement 
could have contributed to that misunderstanding. Id. at 2. While DOE 
acknowledged such confusion, DOE withdrew the 2010 Draft Interpretive 
Rule in the 2011 Enforcement Guidance document based on its conclusion 
that the term ``any showerhead'' has been, and continues to be, 
sufficiently clear such that no interpretive rule is needed. Id. In the 
2011 Enforcement Guidance, DOE stated that multiple spraying components 
sold together as a single unit designed to spray water onto a single 
bather constitute a single showerhead for purpose of the maximum water 
use standard. Id. DOE provided manufacturers a two-year grace period to 
sell any remaining noncompliant products and to adjust product designs 
for compliance with EPCA and DOE regulations. Id. at 3.
---------------------------------------------------------------------------

    \11\ See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf.
---------------------------------------------------------------------------

    Consequently, the ambiguity of the word ``showerhead'' in EPCA is 
underscored by its history. DOE's statements in both the 2010 Draft 
Interpretive Rule and the 2011 Enforcement Guidance illustrate that 
confusion existed among manufacturers about what constituted a 
showerhead under the statutory definition. The diversification of the 
marketplace as it pertains to ``showerheads'' and the confusion about 
what products were considered a showerhead by manufacturers following 
inclusion of the term in EPCA, as amended by EPAct 1992, further 
illustrate that the statutory definition of ``showerhead'' is 
ambiguous. In the July 2021 NOPR, DOE stated that it believes that any 
ambiguity in the statutory meaning should be explicated by a regulatory 
definition that is consistent with EPCA's purposes. 86 FR 38594, 38598.
    In response to the July 2021 NOPR, commenters highlighted the 
circular nature of the statutory definition of ``showerhead.'' CEI et 
al. commented that the statutory definition of showerhead is circular--
the definition of the term includes the term being defined (i.e., 
showerhead is a showerhead). Further, CEI et al. argued that the 
December 2020 Final Rule concluded that the statutory uncertainty was 
largely resolved when the per-showerhead approach was adopted by ASME, 
even though the July 2021 NOPR asserted ongoing doubt. (CEI et al., No. 
18 at p. 2) And Hekstra agreed that consumers and manufacturers 
appreciate clarity and a circular definition is not clear. (Hekstra, 
No. 17 at p. 1).
    DOE agrees that the statutory definition of ``showerhead'' is a 
circular definition, which further illustrates the ambiguity of a term 
that is defined by itself. Further, contrary to CEI et al.'s assertion 
that the statutory uncertainty was resolved in the December 2020 Final 
Rule, the December 2020 Final Rule stated that ambiguity exists 
regarding what is considered a ``showerhead'' under EPCA and, in that 
rule, DOE said it was clarifying what constitutes a ``showerhead.'' 85 
FR 81341, 81344. As outlined in the previous discussion, DOE continues 
to find that the statutory definition of ``showerhead'' is ambiguous 
for the reasons presented in the July 2021 NOPR and in this final rule. 
Ambiguity in the statutory meaning is appropriately resolved by a 
regulatory definition that furthers EPCA's purposes consistent with 
that statute.
2. The December 2020 Final Rule's Definition of Showerhead Is 
Inconsistent With EPCA's Purposes
    As outlined in the July 2021 NOPR, Congress included a statement of 
purpose in EPCA that sets forth seven purposes related to energy. Most 
relevant to the Energy Conservation Program, one of the primary 
purposes of EPCA is ``to conserve energy supplies through energy 
conservation programs, and, where necessary, the regulation of certain 
energy uses.'' (42 U.S.C. 6201(4); Pub. L. 94-163 (Dec. 22, 1975)); see 
86 FR 38594, 38598. The EPAct 1992 amended EPCA by adding plumbing 
products, including showerheads, to the products covered by the Energy 
Conservation Program. (Pub. L. 102-486 (Oct. 24, 1992)) In doing so, 
EPAct 1992 also added to EPCA the purpose of conservation of water ``by 
improving the water efficiency of certain plumbing products and 
appliances,'' in addition to the purpose of energy savings. (42 U.S.C. 
6201(8))
    In the 2010 Draft Interpretive Rule, DOE explained that all 
components that are supplied together and function from one inlet form 
a single showerhead for purposes of the maximum water use standards 
under EPCA.\12\ DOE stated that neither the statutory definition nor 
the test procedures for showerheads treat a showerhead differently 
based upon the shape, size, placement, or number of sprays or openings 
it may have. Id. at 2. Further, DOE highlighted that the test procedure 
contemplates that the regulated showerhead fitting may have additional 
``accessory'' water outlets and specifies that all standard accessories 
must be attached and set at maximum flow during testing. Id. DOE 
clarified that a showerhead is determined to be noncompliant if the 
standard components, operating in their maximum design flow 
configuration taken together use in excess of 2.5 gpm. Id. at 3. 
(emphasis omitted) DOE stated that this approach furthers the goal of 
EPCA to ``conserve water by improving the water efficiency'' of 
showerheads. Id. In DOE's 2011 Enforcement Guidance, DOE articulated a 
modified interpretation of the statutory definition of ``showerhead'' 
from the definition proposed in the 2010 Draft Interpretive Rule. DOE 
stated that multi spraying units sold together as a single unit 
designed to spray water onto one bather are considered a single 
showerhead.\13\ DOE explained that all sprays and nozzles should be 
turned onto the maximum flow setting to determine water use. Id. DOE 
found this approach is consistent with the industry standard, the 
statutory language, and Congressional intent to establish a maximum 
water use requirement. Id. These previous statements by DOE illustrate 
that a definition of ``showerhead'' that includes a multi-headed 
showerhead is consistent with EPCA's purpose of water conservation.
---------------------------------------------------------------------------

    \12\ See https://www.regulations.gov/document?D=EERE-2010-BT-NOA-0016-0002.
    \13\ See https://www.energy.gov/sites/prod/files/gcprod/documents/Showerhead_Guidancel.pdf.
---------------------------------------------------------------------------

    While the 2020 rulemaking acknowledged that water conservation is 
among EPCA's purposes, it did not fully account for how its definition 
of ``showerhead'' would comport with this purpose of EPCA. 85 FR 81341, 
81353. In the July 2021 NOPR, DOE stated that the definition of 
``showerhead''

[[Page 71802]]

established in the December 2020 Final Rule allows each nozzle within a 
showerhead with multiple nozzles to be separately subject to the 
standard, and thereby allows water flow at a multiple of that standard 
and the related increase of energy for water heating. 86 FR 38594, 
38598.
    As discussed in the July 2021 NOPR, the contemplated treatment of 
showerheads in the 2010 Draft Interpretive Rule, the articulated 
interpretation in the 2011 Enforcement Guidance, and the regulatory 
definition established in the October 2013 Final Rule (i.e., all 
components attached to a single supply fitting/inlet are a single 
showerhead) further the goal of EPCA to ``conserve water by improving 
the water efficiency'' of showerheads. 86 FR 38594, 38598. In treating 
all components attached to a single supply fitting/inlet as a shower 
head, the 2.5 gpm standard applies to the combined water flow of all 
such attached components.
    In response to the July 2021 NOPR, commenters discussed the 
statutory interpretation of the term ``showerhead.'' AWE et al. quoted 
the definition of the term ``showerhead'' from Merriam-Websters.com, 
which defines the term as ``a fixture for directing the spray of water 
in a bathroom shower.'' AWE et al. stated that the definition of 
showerhead in the 2013 Rule appropriately aligns with this 
understanding. AWE et al. further stated that the December 2020 Final 
Rule meant that a person taking a shower from a multi-nozzle product 
would be using multiple showerheads at once--a concept that is awkward 
under the common, ordinary usage of the word showerhead. (AWE et al., 
No. 21 at p. 2) AWE et al. explained that objects that are sold as a 
set together, installed together, and used together constitute a single 
product from the consumer's point of view and the usage of these 
objects simultaneously for the function of showering demonstrates the 
collection of them--the nozzles all together--is the single product 
known as a showerhead. (AWE et al., No. 21 at p. 3) CEC stated that the 
October 2013 definition more clearly defines the term showerhead to 
mean any showerhead, other than a safety showerhead, must meet the 
maximum flow rate of 2.5 gpm. Specifically, CEC explained that DOE's 
interpretation of the term in the December 2020 final rule is not 
justified or a permissible construction of the statute and measuring 
the water flow of all sprayers on a multi-nozzle device at the same 
time is the only meaningful interpretation of the statutory and 
regulatory structure of showerhead. (CEC, No. 19 at p. 3)
    Conversely, CEI et al. argued that the most likely intent of the 
statutory definition is that the 2.5 gpm restriction is applicable to 
each individual showerhead, otherwise the statute would have used the 
term shower instead. (CEI et al., No. 18 at p. 2)
    AWE et al. and CEC's comments discussing the general understanding 
of the term ``showerhead'' further confirm DOE's positions outlined in 
the 2010 Draft Interpretive Rule and the 2011 Enforcement Guidance that 
all components/units sold together as a single unit are considered a 
single showerhead. CEI et al. suggests that the term ``showerhead'' 
applies to each individual showerhead, while the term ``shower'' 
applies to a collection of showerheads. The term ``shower'' is 
generally understood to mean the location in which plumbing fixtures 
(e.g., showerhead, tub faucet, body spray) are installed to allow for 
the act of showering. These comments further illustrate that the term 
``showerhead'' is ambiguous, as discussed in section III.A.1. As these 
comments and statements illustrate that the term ``showerhead'' can 
comprise a multi-headed showerhead and is consistent with EPCA's 
purpose of water conservation.
    In response to the July 2021 NOPR, commenters discussed the impacts 
of the current definition of ``showerhead.'' NPCC stated that the 
definitions of ``showerhead'' adopted in the December 2020 Final Rule 
provide two significant loopholes to compliance with the standard 
inconsistent with the purposes of EPCA, with real significant 
consequences for energy and water conservation. (NPCC, No. 12 at pp.1-
2) NPCC estimated that the December 2020 Final Rule definition of 
``showerhead'' could significantly increase water use per shower and 
significantly impact consumption of electricity as well as natural gas. 
(NPCC, No. 12 at p. 2) The Joint Advocates stated that the definition 
of ``showerhead'' that was finalized in the December 2020 Final Rule 
goes against the purposes of EPCA and allows for showerheads to use an 
unlimited amount of water. Additionally, the Joint Advocates stated 
that the current definition of ``showerhead'' would allow for excessive 
water use and result in increased costs for consumers. (Joint 
Advocates, No. 23 at p.1) The CA IOUs stated that the December 2020 
Final Rule introduced the prospect of limitless water usage in many 
showerhead products. (CA IOUs, No. 20 at p.1) Hekstra commented that 
the 2020 definition created a loophole that needs to be closed to meet 
the goal of creating a system that reduces the amount of water used per 
minute by the average shower user. (Hekstra, No. 17)
    CEC stated that the climate and environmental damages, such as harm 
from increased emissions, worse air quality, unnecessary energy demand, 
and water availability, resulting from the December 2020 Final Rule are 
felt across state lines. (CEC, No. 19 at p.2) CEC stated that the 
definition included in the December 2020 Final Rule results in an 
increase in water and energy use nationwide by allowing multi-sprayer 
devices to use more than the maximum flow rate, and is not a 
permissible construction of the statute. (CEC, No. 19 at p.3)
    AWE et al. referenced its prior comments in which it estimated that 
the current definition could increase annual energy consumption by 25 
trillion British thermal units for each gpm increase in shower flow 
rate, and together with the increased annual domestic water use, could 
increase annual water and energy bills for American consumers by an 
estimated $1.14 billion. (AWE et al., No. 21 at p. 4) AWE et al. 
explained that the U.S. is experiencing serious water shortages and the 
December 2020 Final Rule only serves to increase the consumption of 
drinking water that will have severe impacts on water supplies across 
the country. Further, AWE et al. stated that the December 2020 Final 
Rule could increase residential water consumption upwards of 160 
gallons annually by allowing multiple showerhead systems to increase 
flows from the previous 2.5 gpm. AWE et al. also noted the pressure on 
water utilities will continue to grow, due to population increases in 
areas like the West, where water is scare, and climate change, which is 
causing long-term declines in rainfall in many regions. The increased 
water consumption under the December 2020 Final Rule will increase 
water utility costs as it becomes necessary to provide new water 
supplies, and therefore may increase customer bills, as the costs for 
procuring needed new water supplies is passed onto consumers. (AWE et 
al., No. 21 at pp.2-3) AWE stated that the December 2020 Final Rule 
would potentially waste billions of gallons of water, increase energy 
use and power plant emissions, and raise consumer water bills. Further, 
with much of the country struggling with drought, these 2020 changes 
could further compromise water supply availability. (AWE, Public 
Meeting Transcript at p. 7)
    CEI et al. asserted that EPCA requires DOE to balance energy and/or 
water

[[Page 71803]]

conservation against other factors important to consumers, including 
costs and other consumer protections. (CEI et al., No. 18 at p. 3) CEI 
et al. argued that the proposed rule did not provide evidence that it 
would result in significant water savings as required by statute. CEI 
et al. further stated that without evidence of widespread adoption of 
multi-head showers with a maximum flow rate above 2.5 gpm, the agency 
has not shown that reimposing the restrictions on them would result in 
significant water savings. CEI et al. also argued that showers are 
adjustable and even with models that have maximum flow rate above 2.5 
gpm, users will not necessarily use that level of water flow for every 
shower--the highest settings in such showerhead would only be used 
occasionally and such use would likely be shorter in duration. CEI et 
al. continued that the insignificance of the water savings undercuts 
the climate change rationale for the Proposed Rule. (CEI et al., No. 18 
at p. 5) Finally, CEI et al. stated that the July 2021 NOPR's critique 
of the December 2020 Final Rule is based on the misleading belief that 
the statutory provisions prioritize efficiency above everything else. 
(CEI et al., No. 18 at p.6)
    Anonymous suggested that if less water is coming out of their 
shower per minute, a consumer may take longer showers. (Anonymous, No. 
5 at p. 1) Similarly, Southerland argued that restricting the water 
flow from a showerhead will not ``save'' water because if water flow is 
restricted, a person will take a longer shower defeating the purpose of 
the limited water flow. (Southerland, No. 2)
    DOE has considered these comments in this rulemaking as they relate 
to the December 2020 Final Rule's definition of ``showerhead.'' DOE 
continues to believe that EPCA's purpose should be considered when 
amending the definition of a covered product. As this rulemaking does 
not amend the water conservation standards for showerheads, DOE is not 
required to conduct the analysis required by 42 U.S.C. 6295(o) 
suggested by CEI et al. Further, DOE continues to consider all relevant 
statutory provisions, including those related to consumer protection, 
which are discussed in section IV.4. DOE agrees with commenters that if 
maintained, the December 2020 Final Rule ``showerhead'' definition will 
likely increase water usage and increase associated energy use. These 
increases would be contrary to EPCA's purposes of reducing water and 
energy consumption. As such, DOE has determined that the December 2020 
Final Rule's definition of ``showerhead'' should be withdrawn.
    Also, in response to the July 2021 NOPR, DOE received comments 
about the prior 2013 definition of ``showerhead.'' The NPCC stated that 
the reinstated definition of ``showerhead'' would return stability to 
the consumption and efficiency aspects of the showerhead standard. 
Further, NPCC explained that the Northwest has about 10 million 
showerheads, and reinstating this definition will ensure significant 
electricity, natural gas, and water savings are not lost. (NPCC, No. 12 
at p. 2) The District stated that the proposed withdrawal better fits 
with the purpose of the EPCA by improving the energy efficiency and 
water efficiency of consumer products. Further, the District commented 
that efficient shower fixtures reduce water usage not only per 
household, but also on a regional scale. This reduction in demand helps 
conservation efforts especially in regions experiencing frequent 
droughts and other water-conscious communities that would be 
detrimentally impacted by unnecessary additional use of water. (The 
District, No. 16 at pp.1-2) The Joint Advocates stated that the October 
2013 definition will not result in excessive water use and with several 
regions across the country facing droughts and water shortages, it is 
important now more than ever to reduce water demand and conserve 
energy. (Joint Advocates, No. 23 at p. 1) Hekstra stated that the 2013 
definition will reduce the amount of water used by those that wish to 
have multiple showerheads in one shower. (Hekstra, No. 17)
    AWE et al. commented that DOE's proposal to reinstate the 
definition from the 2013 Rule will better effectuate EPCA's water 
conservation purposes. (AWE et al., No. 21 at p.2) AWE et al. 
reiterated the significant water and energy savings from the existing 
definition of ``showerhead'' and that the cumulative savings over 10 
years from 2.5 gpm showerheads could supply up to 1 million homes with 
water and 670,000 homes with energy for a year. AWE et al. also stated 
that the replacement of older, high-flow showerheads provides 11 
billion gallons per year in water savings and 5 trillion Btu per year 
in energy savings in the United States. (AWE et al., No. 21 at p. 4)
    CEC explained that conserving water is especially important because 
90 percent of the Western United States is experiencing drought 
conditions and 54 percent is in ``extreme drought.'' CEC also noted 
that California has seen more than 7,200 fire incidents and more than 2 
million acres burned, including devastating fires such and that it is 
imperative to use every available tool to address the unnecessary and 
inefficient use of energy and water, including and especially improving 
energy and water conservation standards. (CEC, No. 19 at pp.1-2) The CA 
IOUs stated that over 95 percent of California's landmass is currently 
impacted by severe drought, so it is critical for its state that DOE 
ensure showerhead water efficiency is protected and strengthened. (CA 
IOUs, Public Meeting Transcript at p.3) And Kelley noted the importance 
of conserving valuable resources. (Kelley, No. 11)
    DOE has considered the comments received in response to the July 
2021 NOPR and agrees with the commenters that the definition of 
``showerhead'' from the October 2013 Final Rule and the associated 
interpretation provided water and energy savings and protected the 
environment. As discussed above in this section, DOE continues to find 
that the history of the definition of ``showerhead'' and the comments 
in response to July 2021 NOPR illustrate that the term ``showerhead'' 
can comprise a multi-headed showerhead and is consistent with EPCA's 
purpose of water conservation. Further, DOE has determined that if 
maintained, the December 2020 Final Rule ``showerhead'' definition will 
likely increase water usage and increase associated energy use and as 
such the current definition of ``showerhead'' should be withdrawn.
    As such, DOE is withdrawing the definition of showerhead finalized 
in the December 2020 Final Rule and re-instating the definition 
established in the October 2013 Final Rule, which as discussed, 
appropriately addresses the water conservation purpose of EPCA.
3. Reliance on ASME for the Definition of ``Showerhead'' Is Not 
Required
    In the July 2021 NOPR, DOE explained that it tentatively departed 
from the view expressed in the December 2020 Final Rule that it would 
be more consistent with Congressional intent to rely on ASME for the 
definition of ``showerhead.'' 86 FR 38594, 38600. DOE stated that DOE 
does not believe Congress required reliance on the ASME definition. Id.
    As discussed previously in this document, Congress established the 
definition of ``showerhead'' in EPAct 1992, along with the provisions 
related to definitions, standards, test procedures, and labeling 
requirements for plumbing products. (Pub. L. 102-486; Oct. 24, 1992 
Sec. 123) EPAct 1992 and EPCA define the term

[[Page 71804]]

``showerhead'' as ``any showerhead (including a handheld showerhead), 
except a safety shower showerhead.'' (42 U.S.C. 6291(31)(D)) In the 
same paragraph, Congress provided explicit direction to define the 
terms ``water closet'' and ``urinal'' in accordance with ASME 
A112.19.2M, but did not provide such instructions with respect to 
``showerhead.'' (Cf. Sec. 123(b)(5) of Pub. L. 102-486) DOE has learned 
since the July 2021 NOPR that ASME A112.18.1M-1989 did not contain a 
definition for showerheads, but it did contain requirements for 
showerheads. Congress adopted the ASME standards only for the water 
conservation standards, test procedures, and labeling requirements, 
specified ASME A112.18.1M-1989 as the applicable standard, and required 
DOE to adopt the revised version of the standard, unless it conflicted 
with the other requirements of EPCA. (42 U.S.C. 6295(j)(1) and (3); 42 
U.S.C. 6293(b)(7); 42 U.S.C. 6294(a)(2)(E)) While Congress could not 
rely on a definition of ``showerhead'' in ASME A112.18.1M-1989 in 
defining the term, Congress could have required DOE to adopt a 
definition of ``showerhead'' as defined in any revised version of the 
ASME A112.18.1M-1989 as it did with requirements for standards and test 
procedures related to standards. Congress defined ``showerhead'' and 
did not explicitly require DOE to amend the definition of 
``showerhead'' in conformity with the applicable ASME standard.
    Further, the mere fact that the terms immediately preceding 
showerhead are ``ASME'' and ``ANSI'' does not suggest that Congress 
intended for DOE to rely on the ASME definition. EPCA directly 
references ASME A112.18.1M-1989, or a revised version of the standard 
approved by ANSI, for showerhead test procedures, energy conservation 
standards, and labeling requirements, but noticeably does not direct 
DOE to adopt a definition of ``showerhead'' from an amended version of 
the industry standard. Had Congress intended for DOE to apply the 
definition of ``showerheads'' from the industry standard, it would have 
provided the necessary reference. DOE received a comment only from CEC 
on this issue. CEC stated that DOE correctly concludes that Congress 
did not require DOE to rely on ASME for the definition of showerheads. 
(CEC, No. 19 at p. 3).
    Based on the discussion in the preceding paragraphs and presented 
in the July 2021 NOPR, DOE maintains its decision that it is not 
required to define ``showerhead'' according to the ASME definition and 
that Congress intended DOE to have flexibility to define the term.
4. The Reinstated Definition of ``Showerhead'' Does Not Effectively Ban 
Multi-Headed Showerheads
    As discussed in the July 2021 NOPR, EPCA provides that the 
Secretary is prohibited from prescribing an amended or new standard if 
the Secretary finds that interested persons have established by a 
preponderance of the evidence that the standard is likely to result in 
the unavailability in the United States in any covered product type (or 
class) of performance characteristics (including reliability), 
features, sizes, capacities, and volumes that are substantially the 
same as those generally available in the United States at the time of 
the Secretary's finding. (42 U.S.C. 6295(o)(4)); 86 FR 38594, 38601.
    In the August 2020 NOPR, DOE proposed to adopt an amended 
definition of ``showerhead'' that complies with the Congressional 
directive to preserve performance characteristics and features that 
were available on the market at the time DOE originally acted to 
eliminate them. 85 FR 49298, 49291. DOE explained that it cannot 
regulate or otherwise act to remove products with certain performance 
characteristics and features from the market given the prohibition in 
42 U.S.C. 6295(o)(4). 85 FR 49282, 49290. In the December 2020 Final 
Rule, DOE further explained that considering two, three, or eight 
showerheads in a given product to be a ``feature'' is consistent with 
DOE's previous rulemakings and determinations of what constitutes a 
feature. 85 FR 81341, 81347. DOE further stated that following the 2011 
Enforcement Guidance, which DOE stated appeared to effectively ban the 
vast majority of products with multiple ``showerheads'' from the 
market, DOE codified in DOE regulations its effective ban on products 
with multiple showerheads from the market. 85 FR 49284, 49291. DOE 
acknowledged, as is the case with the August 2020 definitional proposed 
rule, that the October 2013 Final Rule was not a standards rulemaking 
and did not comply with the statutory requirements of a standards 
rulemaking. 85 FR 81341, 81347. DOE stated, however, that the effect 
was the same in that multi-headed showerhead products, while not 
entirely eliminated from the market, were significantly reduced in 
availability as a result of the 2011 Enforcement Guidance. Id.
    In the July 2021 NOPR, DOE revisited its application of section 
6295(o)(4) of EPCA in the context of the ``showerhead'' definition. 86 
FR 38594, 38601. As discussed in the July 2021 NOPR, the 
``unavailability'' provision of section 6295(o)(4) of EPCA applies to 
the establishment and amendment of standards. Further, assuming 
arguendo that DOE did amend the water conservation standard or that the 
rule had the effect of a water conservation standard, the October 2013 
Final Rule did not eliminate multi-headed showerheads from the market. 
DOE reviewed its certification database and found that currently there 
are 7,704 basic models of showerheads, with multi-headed showerheads 
continuing to account for 3% of all basic models. Therefore, 42 U.SC. 
6295(o)(4) was not applicable in the October 2013 Final Rule as DOE did 
not amend the standard for showerheads, nor did the rule eliminate 
multi-headed showerheads from the market as there are currently over 
231 basic models on the market. Further, as multi-headed showerheads 
have not been eliminated from the market, DOE is not determining 
whether multi-headed showerheads provide a functionality/performance 
characteristic. Id. at 86 FR 38602.
    CEI et al. stated that EPCA forbids any standard that compromises 
product features and performance. (CEI et al., No. 18 at p. 3) CEI et 
al. argued that the law only requires a showing that at least one model 
including such feature was generally available at the time the standard 
was promulgated, and that Congress could have explicitly overridden the 
consumer protections in the law and categorically outlawed any and all 
shower configurations that allow more than 2.5 gpm in total, and that 
the statute did not clearly do so. (CEI et al., No. 18 at p. 4) 
Finally, CEI et al. further stated that although DOE reasserted that 
any changes to the definition of showerhead are not a new or amended 
standards rulemaking, the reinterpretation has the effect of changing 
the standard and as such must comply with the pro-consumer provisions 
in the statute. (CEI et al., No. 18 at p. 4) CEI et al. also stated 
that while multi-showerhead units can be manufactured as long as they 
do not use more than 2.5 gpm in total, such models are unlikely to 
deliver desired performance and thus would not meet the statutory 
requirements of being ``substantially the same''. (CEI et al., No. 18 
at pp. 4-5)
    In support of the July 2021 NOPR, PMI explained that its members 
have spent millions of dollars on research and development, 
manufacturing, third-party certification, packaging, marketing, and 
distribution of water-efficient showerheads to meet the

[[Page 71805]]

October 2013 Final Rule definition and that such-products are high-
performing plumbing products. (PMI, No. 22 at p. 2) PMI further stated 
that its member companies did not produce, sell or distribute modified 
showerheads to meet the new definition of showerhead that was put in 
place in the December 2020 Final Rule. (Id.)
    As explained in the December 2020 Final Rule and the July 2021 
NOPR, DOE's previous definitional changes and rulemakings for 
showerheads were not standards rulemakings nor is DOE establishing or 
amending standards for showerheads. Therefore DOE is not determining 
whether multi-headed showerheads provide a functionality/performance 
characteristic. (See 42 U.S.C. 6295(o)(4)) Even assuming arguendo, as 
in the July 2021 NOPR (86 FR 38594, 53602), that DOE did amend the 
water conservation standard or that the rule had the effect of a water 
conservation standard, the definition established in the October 2013 
Final Rule did not eliminate multi-headed showerheads from the market. 
A review of the market prior to the December 2020 Final Rule 
illustrated that three percent of the 7,221 basic models of showerheads 
are multi-headed showerheads. See 85 FR 49284, 49293. While the 
information DOE used to determine the number of multi-headed 
showerheads in the July 2021 NOPR is no longer available,\14\ DOE has 
conducted a general review of models currently on the retail market, 
which indicates that showerheads with multiple nozzles/spray 
components, continue to be available. Given that multi-headed 
showerheads continue to be available in the market, this action does 
not reduce performance nor remove any features from the market as 
asserted by CEI.
---------------------------------------------------------------------------

    \14\ For the December 2020 Final Rule, DOE determined the 
percentage of showerheads that are multi-headed showerheads using a 
retailer website. However, the same retailer website no longer 
provides the information needed to calculate an updated percentage. 
In addition, CCMS does not distinguish multi-headed showerheads from 
other showerheads.
---------------------------------------------------------------------------

    CEI et al. also expressed concern about the performance quality of 
multi-headed showerheads required to meet the 2.5 gpm standard for the 
whole system. (See CEI, No. 18 at pp. 4-5) PMI explained that that its 
members have been able to produce high-performing showerheads 
consistent with the October 2013 Final Rule. (See PMI, No. 22 at p. 2) 
If the provision at 42 U.S.C. 6295(o)(4) were applicable to this 
rulemaking, which as discussed it is not, CEI et al. have not 
established by a preponderance of evidence the unavailability of 
showerheads with multiple nozzles/spray components, as required by 
EPCA. The October 2013 Final Rule definition, i.e., the definition 
reinstated by this final rule, did not eliminate multi-head shower 
heads from the market. As such, the definition adopted in this final 
rule is consistent with the Congressional directive to preserve 
performance characteristics and features.
5. The Definition of ``Showerhead'' Falls Within the NTTAA and OMB 
Circular A-119 Exception to Adherence to Voluntary Consensus Standards 
Because It Is Inconsistent With EPCA and Impractical
    Section 12(d)(1) of the NTTAA requires that Federal departments 
``use technical standards that are developed or adopted by voluntary 
consensus standards bodies, except when the use of the technical 
standards is inconsistent with applicable law or otherwise 
impractical.'' (Pub. L. 104-113, 110 Stat. 783 (Mar. 7, 1996), as 
amended by Public Law 107-107, Div. A, Title XI, section 115, 115 Stat. 
1241 ((Dec. 28, 2001) (codified at 15 U.S.C. 272 note)). Similarly, OMB 
Circular A-119 directs Federal agencies to use voluntary consensus 
standards unless inconsistent with applicable law or otherwise 
impractical. (Section 1 of OMB Circular A-119; www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf.)
    In the December 2020 Final Rule, DOE stated that the definition of 
``showerhead'' adopted in that final rule is consistent with the 
requirements of the NTTAA and the associated OMB Circular A-119. 85 FR 
81341, 81342. DOE explained that EPCA does not preclude DOE from using 
industry standards and that the statutory text of EPCA does not make 
compliance with OMB Circular A-119 inconsistent with applicable law or 
otherwise impracticable. Id. at 85 FR 81348. DOE further stated that it 
disagrees that the ASME definition frustrates and is inconsistent with 
the requirements of EPCA. Id.
    As part of DOE's reconsideration of the December 2020 Final Rule, 
DOE tentatively determined in the July 2021 NOPR, in light of the 
comments provided during the rulemaking for the December 2020 Final 
Rule, that it is not appropriate to rely on the consensus industry 
standards as they relate to showerheads in accordance with the NTTAA 
and OMB Circular A-119 because the December 2020 Final Rule definition 
of ``showerhead'' based on ASME consensus industry standards is 
inconsistent with EPCA and is impractical. 86 FR 38594, 38602-38632. 
DOE did not receive comment to the July 2021 NOPR regarding the NTTAA 
and OMB Circular A-119 exception.
    For the reasons set forth in the July 2021 NOPR, DOE finds that it 
should not adopt an industry standard here, as it would conflict with 
EPCA's requirements and be impractical. (See 15 U.S.C. 272 note; OMB 
Circular A-119 section 5.c.\15\) DOE's determination in the December 
2020 Final Rule did not properly weigh the ASME definition of 
``showerhead'' in the context of the purposes of EPCA, as it pertains 
to the NTTAA and OMB Circular A-119. Upon reconsideration, adopting the 
ASME industry standards for the definition of ``showerhead'' in the 
present context conflicts with EPCA and is impractical because it does 
not serve the purposes of water and energy conservation. And the 
``showerhead'' definition and interpretation in the December 2020 Final 
Rule is inconsistent with EPCA and is impractical because it would 
permit increased water usage and increased associated energy use, 
directly contrary to EPCA's purposes. As such, the definition of 
``showerhead'' is within the exception of NTTAA and OMB Circular A-119.
---------------------------------------------------------------------------

    \15\ DOE incorrectly referred to the wrong section of OMB 
Circular A-119 (section 6.a.2.) in the August 2021 NOPR. 86 FR 
38594, 38603. The correct citation is used in this document.
---------------------------------------------------------------------------

6. Additional Comments/Issues
    DOE received a comment regarding the applicability of EPCA's anti-
backsliding provision. AWE et al. stated that on its face, the December 
2020 Final Rule change amended the standard applicable to showerheads, 
and did so in a way that increased the ``maximum allowable water use'' 
of showerheads. They argue therefore that the 2020 Rule thus violated 
EPCA's ``anti-backsliding'' rule, 42 U.S.C. 6295(o)(1). (AWE et al., 
No. 21 at p. 1) AWE et al. further argued that the December 2020 Final 
Rule rationalized that DOE had not established the previous 
interpretation through a standards rulemaking. AWE asserted that the 
anti-backsliding rule does not require, as a predicate, that there was 
a previous standards-setting rulemaking. Instead, AWE stated that the 
2.5-gpm standard was established by Congress, just as EPCA establishes 
many other initial conservation standards, and DOE established the pre-
2020 status quo in an appropriate way--explaining its interpretation 
through a guidance document, reiterating that interpretation

[[Page 71806]]

in the 2013 rulemaking, and confirming it in a regulatory definition. 
AWE further stated that regardless of whether the process involved a 
standards-setting rule, the outcome was certain: Until December 2020, a 
multiple-nozzle product was allowed to flow only at a maximum rate of 
2.5 gpm. AWE et al. suggested that DOE is therefore obligated to revoke 
the 2020 Rule, because that Rule is simply contrary to EPCA and 
unlawful. (AWE et al., No. 21 at p.2)
    DOE agrees with AWE, et al. that the December 2020 Final Rule 
amendment of the definition of ``showerhead'' could lead to increased 
water use. As discussed in section III.2., DOE also agrees with AWE, et 
al. that the definition of ``showerhead'' in the December 2020 Final 
Rule is inconsistent with EPCA's purposes of energy and water 
conservation. Further, DOE is withdrawing the definition of 
'showerhead' adopted in the December 2020 Final Rule and returning to 
the definition from the October 2013 Final Rule. However, EPCA's anti-
backsliding provision prohibits DOE from prescribing ``any amended 
standard which increases the maximum allowable energy use, or, in the 
case of showerheads, faucets, water closets, or urinals, water use, or 
decreases the minimum required energy efficiency, of a covered 
product.'' (42 U.S.C. 6295(o)(1)) The adoption of new or revised 
definitions for products, including ``showerheads'', does not implicate 
the anti-backsliding provisions because it is not a standard nor does 
it alter the current standard. This final rule only amends the 
definition of ``showerhead'' and does not amend the standards for 
showerheads, which were established by Congress in EPCA. (See 42 U.S.C. 
6295(j)(1))
    DOE also received comments generally opposed to the regulation of 
the water flow of showerheads. (See Doty, No. 3 at p. 1; Southerland, 
No. 2 at p. 1; Walters, No. 4 at p. 1) Ramer commented that the 
proposed definition will place a higher cost, due to testing, for 
showerhead manufacturers and consumers. (Ramer, No. 10 at p. 1) 
Halligan asked whether a grace period would be provided to allow 
businesses and building owners to retrofit existing models. (Halligan, 
No. 8 at p. 1) As discussed in section II.B., Congress established the 
definition of ``showerhead'' in EPAct 1992 and tasked DOE with 
implementing the provisions related to definitions, standards, and test 
procedure requirements for plumbing products. (Pub. L. 102-486; Oct. 
24, 1992 Sec. 123) Further, the definition adopted in this final rule 
and the statutory standard apply to products as manufactured, not 
products already installed. (See generally 42 U.S.C. 6302)
    A commenter also questioned whether the December 2020 Final Rule's 
definition of ``showerhead'' really limited DOE's capabilities in the 
water conservation effort. (Johnston, No. 7 at p. 1) As discussed in 
section IV.A.II, the December 2020 Final Rule's definition for 
``showerhead'' would increase water and energy use.

B. Withdrawal of DOE's Current Definition of ``Body Spray''

    DOE adopted a definition for ``body spray'' in the December 2020 
Final Rule, concluding that the definition of ``showerhead'' in the 
October 2013 Final Rule did not specifically include or exclude body 
sprays and that this omission may have introduced uncertainty for 
regulated parties and that therefore it is appropriate to clarify that 
body sprays are not showerheads. 85 FR 81341, 81350. DOE defined the 
term ``body spray'' as ``a shower device for spraying water onto a 
bather from other than the overhead position. A body spray is not a 
showerhead.'' 85 FR 81341, 81359. DOE also stated that leaving the 
scope of products not subject to EPCA's energy conservation standard 
undefined, and potentially subjecting manufacturers of body sprays to 
DOE standards, causes more confusion than establishing a regulatory 
definition. 85 FR 81341, 81350.
    In the July 2021 NOPR, DOE revisited the definition of ``body 
spray,'' including the comments received in the rulemaking to the 
December 2020 Final Rule. In the July 2021 NOPR, DOE tentatively 
determined that the definition of ``body spray'' and the interpretation 
that body sprays are not a showerhead does not effectively address the 
relationship between these two products. 86 FR 38594, 38603. The 2018 
ASME standard, as well as the 2012 ASME standard, treat the products 
similarly, and the only difference between the definitions of 
``showerhead'' and ``body spray'' is the installation location. 
Further, the market review conducted by the CA IOUs during the 
rulemaking for the December 2020 Final Rule indicates that these two 
products are not treated differently in the marketplace.\16\ Given the 
similar treatment by the industry standard and the market, as well as 
the lack of discernable differences between the products, DOE 
tentatively determined that the current definition does not best 
address the relationship between these two products. Id. In addition, 
DOE stated that the current definition of ``body spray'' may result in 
excessive water use that is inconsistent with EPCA's purposes. Id. 
While DOE explained in the December 2020 Final Rule that leaving the 
term ``body sprays'' undefined introduced uncertainty into the market 
about whether those products needed to comply with the 2.5 gpm 
standard, the research done by CA IOUs shows that products with body 
sprays complied with the energy conservation standard. Id. As such, DOE 
tentatively determined that the current definition of ``body spray'' 
should be withdrawn. Id.
---------------------------------------------------------------------------

    \16\ See Docket No. EERE-2020-BT-TP-0002-0084 at pp.3-5.
---------------------------------------------------------------------------

    In response to the July 2021 NOPR, DOE received comments expressing 
support for the withdrawal of the recently codified definition of 
``body spray'' from the ASAP, CEC, NPCC, CA IOUs, AWE et al., the 
District, and the Joint Advocates. (CEC, No. 19 at p. 3; NPCC, No. 12 
at p. 2; CA IOUs, No. 20 at p. 1; AWE et al., No. 21 at p. 3; the 
District, No. 16 at p. 2; Joint Advocates, No. 23 at p. 2; ASAP, Public 
Meeting Transcript at p. 5)
    Specifically, CEC stated that the December 2020 Final Rule 
established an ambiguous definition for ``body spray'' that relies 
solely on manufacturer intent and consumer installation decisions, 
rather than discernable technical differences between the products. 
(CEC, No. 19 at p. 3) CEC added that this change to how DOE treats body 
sprays created a significant loophole for manufacturers to develop and 
sell devices that perform the same function as a showerhead, but are 
not required to meet the maximum 2.5 gpm flow rate simply because of 
``manufacturer intent'' or device placement. (Id. at pp. 3-4) AWE et 
al. stated that withdrawing the definition of ``body spray'' is 
consistent with the purposes of the EPCA and will comply with current 
ASME A112.18.1/CSA B125.1 standard. (AWE et al., No. 21 at p.3) AWE et 
al. also explained that the body spray exclusion constitutes a 
significant loophole, allowing a product to be sold, installed, and 
used with water flow far in excess of the statutory standard, just 
because the water approaches the bather from a different angle. (Id.) 
Further, the Joint Advocates explained that industry standards and 
market research show that body spray and showerhead products are 
technically comparable and are often treated similarly in the market, 
with the only difference being the location of installation and as 
such, body spray products should not be explicitly

[[Page 71807]]

excluded from meeting the 2.5 gpm standard. (Joint Advocates, No. 23 at 
p. 2) ASAP also stated that the definition of ``body spray'' would 
result in a loophole since a body spray could be installed in pretty 
much any orientation. (ASAP, Public Meeting Transcript at p. 6)
    Commenters also discussed the impacts of the current ``body spray'' 
definition on energy and water conservation. CEC also stated that by 
realigning its definition with the October 2013 Final Rule, DOE will 
reduce confusion and uncertainty in the market, resulting in energy and 
water conservation nationwide. (CEC, No. 19 at p. 4) The Joint 
Advocates explained that the current definition of ``body spray'' has 
the potential to result in excessive water use by allowing products 
that meet this definition to be exempt from any energy conservation 
standards. (Joint Advocates, No. 23 at p. 2)
    As described in the July 2021 NOPR and reiterated by commenters in 
response to the July 2021 NOPR, industry standards and the marketplace 
treat ``showerheads'' and ``body sprays'' similarly with the only 
difference being in the installation location. Further, DOE continues 
to agree with the commenters' concerns about the increased water and 
energy use of the existing definition of ``body spray.'' Having 
considered the comments received and based on the discussion presented 
in the preceding paragraphs and in July 2021 NOPR, DOE is withdrawing 
the current definition of ``body spray.''

C. Safety Shower Showerhead

    In the December 2020 Final Rule, DOE established a definition for 
the term ``safety shower showerhead.'' 85 FR 81341, 81351. 
Specifically, DOE defined ``safety shower showerhead'' to mean ``a 
showerhead designed to meet the requirements of ANSI/ISEA Z358.1 
(incorporated by reference, see Sec.  430.3).'' 85 FR 81341, 81352; see 
also 10 CFR 430.2.
    In the July 2021 NOPR, DOE did not propose to amend the definition 
of ``safety shower showerhead'' and continued to find that leaving the 
scope of products not subject to EPCA's energy conservation standard 
undefined causes confusion and is inappropriate. 86 FR 38594, 38603. 
Further, DOE continued to find that: What is meant by a ``safety shower 
showerhead'' or emergency shower is understood in the regulated 
industry; that it is unlikely that manufacturers of showerheads 
intended for use by residential consumers would design a showerhead to 
meet the specifications of the ANSI standard in order to avoid 
compliance with DOE standards; and that the definition and performance 
criteria in the definition of ``safety shower showerhead'' addressed 
concerns noted by the commenters in the 2020 rulemaking and distinguish 
a showerhead from a safety shower showerhead. Id. at 86 FR 38603-38604. 
Accordingly, DOE tentatively determined that retaining the definition 
of ``safety shower showerhead'' was necessary and appropriate. Id. at 
86 FR 38604.
    In response to the July 2021 NOPR, DOE received comments expressing 
support for maintaining its definition of a ``safety shower 
showerhead'' as codified by the 2020 Final Rule from CA IOUs, CEC, 
ASAP, AWE et al., and PMI. (CA IOUs, No. 20 at p. 1; CEC, No. 19 at p. 
4; ASAP, Public Meeting Transcript at p.4; AWE et al., No. 21 at p. 3; 
PMI, No. 22 at p. 2; PMI, Public Meeting Transcript at p. 6) Hekstra 
requested that there is a definition of ``safety shower showerhead.'' 
Hekstra explained that a manufacturer cannot ensure they are within or 
without the exception of a safety shower showerhead if they do not know 
what one is. (Hekstra, No. 17) Glucksman asked whether the definition 
of ``showerhead'' applies to work and eye wash safety stations or if 
the July 2021 NOPR applies only to consumer-based showers. (Glucksman, 
No. 06 at p. 1)
    CEC supported the retention of the definition of ``safety shower 
showerheads,'' but commented that that the definition for ``safety 
shower showerheads'' presents a potential loophole in that the ANSI/
ISEA Z358.1-2014 specifications do not prohibit these devices from 
operating in a ``partially on'' state, and therefore manufacturers 
could develop products that meet the requirements of ANSI/ISEA Z358.1-
2014, but that could also operate in a ``partially on'' state that 
resembles a non-compliant showerhead. (CEC, No. 19 at p. 4) CEC stated 
that it has not identified any such products on the market, but CEC 
recommended that DOE monitor sales to ensure manufacturers are not 
exploiting this potential loophole and consider amendments to the 
definition. (Id.) The Joint Advocates recommended that DOE further 
improve the definition of ``safety shower showerhead'' to eliminate the 
possibility of circumvention of federal water efficiency requirements 
by exploiting perceived ambiguities in the federal definition of 
showerhead. The Joint Advocates commented future products could 
conceivably be designed to both meet the ANSI/ISEA standard's 
requirements and be capable of providing a shower for bathing at flow 
rates well above the federal standard. (Joint Advocates, No. 23 at p. 
2) The Joint Advocates recommended that DOE require that safety shower 
showerheads both meet the ANSI/ISEA standard's requirements and also be 
``designed and marketed exclusively for emergency shower 
applications.'' (Id.)
    The comments by Glucksman and Hekstra illustrated the continuing 
need to have a definition for the term ``safety shower showerhead.'' 
Consistent with the CEC and the Joint Advocates' observations, DOE is 
not aware of products on the market certified to ANSI/ISEA Z358.1-2014 
that allow for operation at a reduced flowrate appropriate for normal 
bathing. Section 4.2 of ANSI/ISEA Z358.1-2014 specifies that the valve 
for a safety shower showerhead ``shall be simple to operate and shall 
go from `off' to `on' in 1 second or less.'' The specification for the 
``off'' to ``on'' operation of the valve makes it unlikely that a value 
with an intermediate setting that provides reduced flow (i.e., reducing 
the flowrate from 20 gpm specified in the industry standard to a 
flowrate acceptable for normal bathing) would comply with the 
definition of ``safety shower showerhead.'' Further, the testing 
procedures for ANSI/ISEA certification of emergency showers in Section 
4.4.1 of ANSI/ISEA Z358.1-2014 also requires verification that the 
valve ``fully opens in one second or less and that it stays open,'' 
indicating that valve must be open for the duration of the operation, 
in turn not allowing for any reduced flow rates. Therefore, DOE finds 
it unlikely that manufacturers would introduce safety shower 
showerheads that allow for operation at a reduced flow due to the risk 
of inadvertent operation of the product at a reduce flow in an 
emergency situation. As such, DOE is not amending the definition of 
``safety shower showerhead.''

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
final rule constitutes a ``significant regulatory action'' under 
section 3(f) of Executive Order (E.O.) 12866, ``Regulatory Planning and 
Review,'' 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was 
subject to review under E.O. 12866 by the Office of Information and 
Regulatory Affairs (OIRA) at OMB.
    This rule provides important benefits to consumers, producers, and 
society. Clear definitions, as finalized in this

[[Page 71808]]

rule, are beneficial to resolve ambiguity for manufacturers and 
consumers. And because returning to the October 2013 definition of 
``showerhead,'' withdrawing the current definition of ``body spray,'' 
and maintaining the current definition of ``safety shower showerhead'' 
better effectuate EPCA's water and energy conservation purposes, this 
rule also reinforces to manufacturers and the public that DOE's 
overarching goal in implementing EPCA is water and energy conservation.
    By returning to the definition of ``showerhead'' and to the 
interpretation of ``body spray'' that existed prior to the December 
2020 Final Rule, the rule provides consumers and society the benefits 
derived from the water and energy savings of DOE's previous approach to 
these terms. Consumers have access in the market to high-performing 
showerheads, including multi-headed showerheads, that meet the 
definitions finalized here, and so this action does not reduce 
performance or remove from the market any features that are currently 
available. DOE expects that these benefits to consumers and society 
will materialize over the long term as DOE believes that manufacturers 
have no near-term plans to produce, sell, or distribute modified 
showerheads that would use more water in ways inconsistent with the 
definitions being re-adopted in this rule.
    DOE has weighed the benefits (decreased water usage, increased 
clarity, and consumer energy savings) against the potential costs, and 
has determined that the benefits of adopting this definition change 
outweigh the costs, and that achieving these benefits for consumers and 
society effectuates the purposes of EPCA.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a final regulatory flexibility analysis (``FRFA'') for 
any final rule where the agency was first required by law to publish a 
proposed rule for public comment, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. As required by E.O. 13272, ``Proper 
Consideration of Small Entities in Agency Rulemaking,'' 67 FR 53461 
(Aug. 16, 2002), DOE published procedures and policies on February 19, 
2003, to ensure that the potential impacts of its rules on small 
entities are properly considered during the rulemaking process. 68 FR 
7990. DOE has made its procedures and policies available on the Office 
of the General Counsel's website (www.energy.gov/gc/office-general-counsel).
    DOE reviewed this final rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. DOE certifies that the final rule will not have significant 
economic impact on a substantial number of small entities. The factual 
basis for this certification is set forth in the following paragraphs.
    The Small Business Administration (``SBA'') considers a business 
entity to be a small business, if, together with its affiliates, it 
employs less than a threshold number of workers or earns less than the 
average annual receipts specified in 13 CFR part 121. The threshold 
values set forth in these regulation use size standards codes 
established by the North American Industry Classification System 
(``NAICS'') that are available at: www.sba.gov/document/support--table-size-standards. Plumbing equipment manufacturers are classified under 
NAICS 332913 ``Plumbing Fixture Fitting and Trim Manufacturing,'' and 
NAICS 327110 ``Pottery, Ceramics, and Plumbing Fixture Manufacturing.'' 
The SBA sets a threshold of 1,000 employees or fewer for an entity to 
be considered a small business within these categories.
    This final rule withdraws the current definition of showerhead and 
reinstates the prior definition of showerhead. It also withdraws the 
definition of body sprays. Finally, this final rule retains the 
definition of safety shower showerhead. DOE has not found any 
showerheads that have been introduced into the market by any 
manufacturers, large or small, since the December 2020 Final Rule 
became effective that certified compliance on the basis of the revised 
definitions in the December 2020 Final Rule, as compared to the 
definition established in the October 2013 Final Rule. All certified 
showerheads in DOE's Compliance Certification Database \17\ (``CCMS'') 
have flow rates no greater than 2.5 gpm and would meet the definition 
established in the October 2013 Final Rule. Additionally, in response 
to the July 2021 NOPR, PMI stated that its member companies did not 
produce, sell, or distribute modified showerheads to meet the new 
definition of showerhead that was put in place in the December 2020 
Final Rule. (PMI, No. 22 at p. 2) As such, DOE has not found any 
evidence that any manufacturer, large or small, has introduced any 
showerhead model that relied on the definition of showerhead that was 
put in place in the December 2020 Final Rule. Based on the foregoing, 
DOE certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \17\ www.regulations.doe.gov/certification-data. Last accessed 
on November 30, 2021.
---------------------------------------------------------------------------

C. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of showerheads must certify to DOE that their 
products comply with any applicable energy conservation standards. To 
certify compliance, manufacturers must first obtain test data for their 
products according to the DOE test procedures, including any amendments 
adopted for those test procedures. DOE has established regulations for 
the certification and recordkeeping requirements for all covered 
consumer products and commercial equipment, including showerheads. (See 
generally 10 CFR part 429.) The collection-of-information requirement 
for the certification and recordkeeping is subject to review and 
approval by OMB under the Paperwork Reduction Act (``PRA''). This 
requirement has been approved by OMB under OMB control number 1910-
1400. Public reporting burden for the certification is estimated to 
average 35 hours per response, including time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    This final rule withdraws the current definition of showerhead and 
reinstates the prior definition of showerhead. It also withdraws the 
definition of body sprays. Finally, this final rule retains the 
definition of safety shower showerhead. It does not amend the reporting 
requirement. Further as noted, DOE has not identified any showerheads 
that have been introduced into the market since the December 2020 Final 
Rule became effective for which certification is on the basis of the 
revised definitions in the December 2020 Final Rule, as compared to the 
definition established in the October 2013 Final Rule. Specifically, 
all certified showerheads in the CCMS have flow rates no greater than 
2.5 gpm and PMI stated in their comments that its member companies, 
which comprises over 90 percent plumbing product, did not produce, sell 
or distribute modified showerheads based on the December 2020 Final 
Rule. (PMI, No. 22 at p. 2) Showerheads will not be required to 
recertify based solely on the amendment to the definitional amendments 
adopted in this final rule.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply

[[Page 71809]]

with, a collection of information subject to the requirements of the 
PRA, unless that collection of information displays a currently valid 
OMB Control Number.

D. Review Under the National Environmental Policy Act of 1969

    Pursuant to the National Environmental Policy Act (NEPA) of 1969, 
DOE has analyzed this final action in accordance with NEPA and DOE's 
NEPA implementing regulations (10 CFR part 1021). DOE has determined 
that this rule qualifies for categorical exclusion under 10 CFR part 
1021, subpart D, appendix A5 because it is an interpretive rulemaking 
that does not change the environmental effect of the rule and meets the 
requirements for application of a categorical exclusion. See 10 CFR 
1021.410. Therefore, DOE has determined that promulgation of this rule 
is not a major Federal action significantly affecting the quality of 
the human environment within the meaning of NEPA, and does not require 
an environmental assessment or an environmental impact statement.

E. Review Under Executive Order 13132

    E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), imposes 
certain requirements on Federal agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. The Executive order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this final rule and has 
determined that it would not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. EPCA governs and prescribes Federal 
preemption of State regulations as to energy conservation for the 
products that are the subject of this final rule. States can petition 
DOE for exemption from such preemption to the extent, and based on 
criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is 
required by Executive Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform,'' imposes on Federal agencies the general duty to 
adhere to the following requirements: (1) Eliminate drafting errors and 
ambiguity, (2) write regulations to minimize litigation, (3) provide a 
clear legal standard for affected conduct rather than a general 
standard, and (4) promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Regarding the review required by section 3(a), 
section 3(b) of E.O. 12988 specifically requires that executive 
agencies make every reasonable effort to ensure that the regulation: 
(1) Clearly specifies the preemptive effect, if any, (2) clearly 
specifies any effect on existing Federal law or regulation, (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction, (4) specifies the retroactive 
effect, if any, (5) adequately defines key terms, and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires executive agencies to review regulations 
in light of applicable standards in section 3(a) and section 3(b) to 
determine whether they are met or it is unreasonable to meet one or 
more of them. DOE has completed the required review and determined 
that, to the extent permitted by law, this final rule meets the 
relevant standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'') 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, section 201 (codified at 2 U.S.C. 
1531). For a regulatory action likely to result in a rule that may 
cause the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. 62 FR 12820. DOE's policy statement is also available at 
https://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    DOE has concluded that this final rule contains neither an 
intergovernmental mandate nor a mandate that may result in the 
expenditures of $100 million or more in any one year, so these 
requirements under the Unfunded Mandates Reform Act do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule will not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

    Pursuant to E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights,'' 53 FR 8859 (Mar. 15, 
1988), DOE has determined that this final rule will not result in any 
takings that might require compensation under the Fifth Amendment to 
the U.S. Constitution.

J. Review Under Treasury and General Government Appropriations Act, 
2001

[[Page 71810]]

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review 
most disseminations of information to the public under information 
quality guidelines established by each agency pursuant to general 
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 
(Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving 
Implementation of the Information Quality Act (April 24, 2019), DOE 
published updated guidelines which are available at https://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has 
reviewed this final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    E.O. 13211, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 
2001), requires Federal agencies to prepare and submit to OIRA at OMB, 
a Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgates or is expected to lead to promulgation of a final 
rule, and that (1) is a significant regulatory action under Executive 
Order 12866, or any successor order; and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    DOE has concluded that this regulatory action--which amends the 
definition of showerhead, withdraws the definition of body spray, and 
retains the definition of safety shower showerhead--will not have a 
significant adverse effect on the supply, distribution, or use of 
energy and, therefore, is not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects on this final rule.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

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

List of Subjects in 10 CFR Part 430

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

Signing Authority

    This document of the Department of Energy was signed on December 
14, 2021, by Kelly J. Speakes-Backman, Principal Deputy Assistant 
Secretary for Energy Efficiency and Renewable Energy, pursuant to 
delegated authority from the Secretary of Energy. That document with 
the original signature and date is maintained by DOE. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DOE Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of the Department of Energy. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on December 15, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

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

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority:  42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.


0
2. Section 430.2 is amended by removing the definition of ``Body 
spray'' and revising the definition of ``Showerhead'', to read as 
follows:


Sec.  430.2   Definitions.

* * * * *
    Showerhead means a component or set of components distributed in 
commerce for attachment to a single supply fitting, for spraying water 
onto a bather, typically from an overhead position, excluding safety 
shower showerheads.
* * * * *
[FR Doc. 2021-27462 Filed 12-17-21; 8:45 am]
BILLING CODE 6450-01-P