Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81341 

through October 29, 2021 and 

§§ .590.149(b) and (c), 590.580(b)(1), 

591.1(b), and 591.2(a) and (c) are stayed 

through October 31, 2022. 

§ 590.504 [Corrected] 

2. On page 68679, second column, 

amendatory instruction 55 and 

§ 590.504 are corrected, and amendatory 

instructions 55a and 55b are added, to 

read as follows: 

55. Amend § 590.504 by revising 

paragraphs (a) through (e) to read as 

follows: 

§ 590.504 General operating procedures. 

(a) Operations involving the 

processing, storing, and handling of 

eggs, ingredients, and egg products must 

be done in a sanitary manner. 

(b)(1) Eggs and egg products are 

subject to inspection in each official 

plant processing egg products for 

commerce. 

(2) Any eggs and egg products not 

processed in accordance with the 

regulations in this part or part 591 or 

that are not otherwise fit for human food 

must be removed and segregated. 

(c)(1) All loss and inedible eggs or 

inedible egg products must be placed in 

a container clearly labeled ‘‘inedible’’ 

and containing a sufficient amount of 

denaturant or decharacterant, such as an 

FDA-approved color additive, 

suspended in the product. Eggs must be 

crushed and the substance dispersed 

through the product in amounts 

sufficient to give the product a 

distinctive appearance or odor. Inedible 

product may be held in containers 

clearly labeled ‘‘inedible’’ which do not 

contain a denaturant as long as such 

inedible product is properly packaged, 

labeled and segregated, and inventory 

controls are maintained. Such inedible 

product must be denatured or 

decharacterized before being shipped 

from a facility. 

(2) Undenatured egg products or 

inedible egg products that are not 

decharacterized may be shipped from an 

official plant for industrial use or 

animal food, provided that it is properly 

packaged, labeled, and segregated, and 

inventory controls are maintained. 

(d) [Reserved] 

(e) Inspection program personnel may 

allow an official plant to move egg 

products that have been sampled and 

analyzed for Salmonella, or for any 

other reason, before receiving the test 

results, if they do not suspect 

noncompliance by the plant with any 

provisions of this part. The official plant 

must maintain control of the products 

represented by the sample pending the 

results. 

* * * * * 

§ 590.504 [Amended] 

55a. Effective October 29, 2021, 

amend § 590.504 by removing and 

reserving paragraphs (f) through (n), and 

removing paragraphs (p) and (q). 

§ 590.504 General operating procedures. 

55b. Effective October 31, 2022, 

amend § 590.504 by adding paragraph 

(d) and removing paragraphs (f) through 

(o) to read as follows: 

* * * * * 

(d)(1) Egg products must be processed 

to meet the standard set out in 

§ 590.570. 

(2) Unpasteurized or microbial 

pathogen-positive egg products may be 

shipped from an official plant to another 

official plant only when they are to be 

pasteurized, heat treated, or treated 

using other methods of treatment 

sufficient to produce egg products that 

are edible without additional 

preparation to achieve food safety in the 

second official plant. Official plants 

must maintain control of shipments of 

unpasteurized or microbial pathogenpositive egg products shipped from one 

official plant to another official plant for 

pasteurization or treatment. Shipping 

plants must seal such shipments in cars 

or trucks and label them in accordance 

with § 590.410(c). Containers of 

unpasteurized or microbial pathogenpositive egg product must be marked 

with the identification mark shown in 

Figure 2 of § 590.415. 

* * * * * 

§ 590.570 [Corrected] 

3. On page 68680, second column, 

amendatory instruction 66 is corrected 

as instruction 66b, and new amendatory 

instructions 66 and 66a are added, to 

read as follows: 

§ 590.570 [Amended] 

66. Amend § 590.570 by removing 

paragraph (c). 

§ 590.570 [Amended] 

66a. Effective October 29, 2021, 

amend § 590.570 by removing and 

reserving paragraph (a). 

66b. Effective October 31, 2022, revise 

§ 590.570 to read as follows: 

Done at Washington, DC. 

Paul Kiecker, 

Administrator. 

[FR Doc. 2020–26798 Filed 12–15–20; 8:45 am] 

BILLING CODE 3410–DM–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[EERE–2020–BT–TP–0002] 

RIN 1904–AE85 

Energy Conservation Program: 

Definition of Showerhead 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: In this final rule, the U.S. 

Department of Energy (‘‘DOE’’) adopts a 

revised definition for ‘‘showerhead’’ and 

definitions for ‘‘body spray’’ and ‘‘safety 

shower showerhead’’. The revised 

regulatory definition for ‘‘showerhead’’ 

is consistent with the most recent 

standard developed by the American 

Society of Mechanical Engineers 

(‘‘ASME’’) in 2018, such that each 

showerhead in a product containing 

multiple showerheads would be 

considered separately for purposes of 

determining standards compliance. DOE 

has determined that the definition is 

consistent with EPCA and, unlike the 

current definition, compliant with the 

National Technology Transfer and 

Advancement Act and Office of 

Management and Budget (‘‘OMB’’) 

Circular A–119. In addition, the 

definition is consistent with DOE’s 

treatment of other products, such as 

body sprays. DOE is also defining the 

terms ‘‘body spray’’ and ‘‘safety shower 

showerhead’’ to clarify which products 

are not subject to the current energy 

conservation standard. With regard to 

the showerhead test procedure, DOE 

emphasizes in this final rule that the 

existing test procedure remains 

applicable for purposes of measuring 

the water use of a showerhead as 

defined in this final rule. DOE is not 

finalizing any test procedure 

amendments in this final rule. 

DATES: The effective date of this rule is 

January 15, 2021. The incorporation by 

reference of certain publications listed 

in this rule is approved by the Director 

of the Federal Register on January 15, 

2021. 

ADDRESSES: The docket for this 

rulemaking, which includes Federal 

Register notices, comments, and other 

supporting documents/materials, is 

available for review at https://

www.regulations.gov. All documents in 

the docket are listed in the https://

www.regulations.gov index. However, 

not all documents listed in the index 

may be publicly available, such as 

information that is exempt from public 

disclosure. The docket web page can be 


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81342 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

1Section 12(d) of the NTTAA provides that with 

one exception, all Federal agencies and 

departments shall use technical standards 

developed or adopted by voluntary consensus 

standards bodies (‘‘voluntary consensus 

standards’’), using such standards as a means to 

carry out policy objectives or activities determined 

by the agencies and departments. The statutory 

exception is that a Federal agency or department 

may elect to use other technical standards if using 

voluntary consensus standards is inconsistent with 

applicable law or otherwise impractical, and if the 

agency head submits to OMB an explanation of the 

reasons for using the alternative standards. See 15 

U.S.C. 272 note. Section 6 of OMB Circular A–119, 

available at https://www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/circulars/A119/revised_

circular_a-119_as_of_1_22.pdf, reiterates the 

requirement for Federal agencies to use voluntary 

consensus standards unless inconsistent with 

applicable law or otherwise impracticable, and to 

issue guidance for agency reporting to OMB when 

standards other than voluntary consensus standards 

are used. 

2All references to EPCA refer to the statute as 

amended through America’s Water Infrastructure 

Act of 2018, Public Law 115–270 (Oct. 23, 2018). 

found at: http://www.regulations.gov/ 

docket?D=EERE-2020-BT-TP-0002. The 

docket web page contains instructions 

on how to access all documents, 

including public comments, in the 

docket. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amelia Whiting, U.S. Department of 

Energy, Office of the General Counsel, 

GC–33, 1000 Independence Avenue SW, 

Washington, DC 20585. Telephone: 

(202) 586–2588. Email: 

Amelia.Whiting@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: DOE 

incorporates by reference the following 

industry standard into 10 CFR part 430: 

ANSI/ISEA Standard Z358.1–2014, 

‘‘American National Standard for 

Emergency Eyewash and Shower 

Equipment’’, approved January 8, 2015. 

Copies of ANSI/ISEA Z358.1–2014, 

can be obtained from International 

Safety Equipment Association, 1901 

North Moore Street, Suite 808, 

Arlington, Virginia 22209 or American 

National Standards Institute, 25 West 43 

St., 4th Floor, New York, NY 10036, 

http://ansi.org. 

For a further discussion of this 

standard, see section IV.M. 

Table of Contents 

I. Summary of Final Rule 

II. Authority and Background 

A. Authority 

B. Background 

III. Discussion 

A. Justification for Showerhead Definition 

Revision 

1. Ambiguity in Showerhead Definition 

2. Reasoning for Showerhead Definition 

Revision 

3. NTTAA and OMB Circular A–119 

B. Anti-Backsliding Consideration 

C. Definition of Body Spray and Safety 

Shower Showerhead 

1. Body Spray 

2. Safety Shower Showerhead 

D. Testing Requirements 

E. Water Conservation 

F. Additional Issues 

1. State Regulation of Showerhead 

2. Procedural Comments 

3. Consumer Choice 

4. Cost Impact and Technical Analysis 

5. Adoption of Consensus Standards 

6. Other Comments 

IV. Procedural Issues and Regulatory Review 

A. Review Under Executive Order 12866 

B. Review Under Executive Order 13771 

and 13777 

C. Review Under the Regulatory Flexibility 

Act 

D. Review Under the Paperwork Reduction 

Act of 1995 

E. Review Under the National 

Environmental Policy Act of 1969 

F. Review Under Executive Order 13132 

G. Review Under Executive Order 12988 

H. Review Under the Unfunded Mandates 

Reform Act of 1995 

I. Review Under the Treasury and General 

Government Appropriations Act, 1999 

J. Review Under Executive Order 12630 

K. Review Under Treasury and General 

Government Appropriations Act, 2001 

L. Review Under Executive Order 13211 

M. Description of Materials Incorporated 

by Reference 

N. Congressional Notification 

V. Approval of the Office of the Secretary 

I. Summary of Final Rule 

In this final rule, DOE is revising its 

prior interpretation of the EPCA 

definition of ‘‘showerhead’’ to interpret 

the term as defined in ASME 

A112.18.1–2018. DOE defines 

‘‘showerhead’’ as ‘‘any showerhead 

including a handheld showerhead other 

than a safety shower showerhead.’’ This 

definition restates the statutory 

definition of ‘‘showerhead,’’ at 42 U.S.C. 

6291(31)(D). Through this final rule, 

DOE also includes in its regulatory 

definition of ‘‘showerhead’’, its 

interpretation of the term ‘‘showerhead’’ 

to mean ‘‘an accessory to a supply 

fitting for spraying water onto a bather, 

typically from an overhead position.’’ 

This interpretation incorporates the 

ASME definition. 

DOE believes that interpreting the 

term ‘‘showerhead’’ consistent with the 

ASME definition is more appropriate 

than DOE’s previous interpretation of 

‘‘showerhead.’’ As described in section 

II.A of this document, DOE recognizes 

that the statutory definition of the term 

‘‘showerhead’’ is ambiguous in key 

respects. Accordingly, to provide clarity 

to regulated entities and the public 

concerning what is meant by the term, 

DOE is revising its regulatory definition 

of showerhead using the definition of 

‘‘showerhead’’ in ASME A112.18.1– 

2018. The most current ASME standard 

continues to define a showerhead as it 

did in 2011 when DOE first issued 

interpretive guidance for showerheads 

that defined the term to include all 

showerheads in a multi-head product 

—‘‘an accessory to a supply fitting for 

spraying water onto a bather, typically 

from the overhead position.’’ 

Under DOE’s definition, each 

showerhead included in a product with 

multiple showerheads would separately 

be required to meet the 2.5 gallons per 

minute (‘‘gpm’’) standard established in 

EPCA. As explained in the discussion 

that follows, DOE concludes that its 

interpretation of the term ‘‘showerhead’’ 

is consistent with Congressional intent 

in establishing the EPCA definition of 

‘‘showerhead’’ and the associated 

energy conservation standard. DOE’s 

final rule is also consistent with the 

requirements of the National 

Technology Transfer and Advancement 

Act of 1995, Public Law 104–113, 

section 12(d), Mar. 7, 1996, 110 Stat. 

783, as amended by Public Law 107– 

107, Div. A, Title XI, section 1115, Dec. 

28, 2001, 115 Stat. 1241 (‘‘NTTAA’’), 15 

U.S.C. 272 note, and the associated 

OMB Circular A–119, which directs 

Federal agencies to use voluntary 

consensus standards unless inconsistent 

with applicable law or otherwise 

impracticable.1 In addition, DOE’s rule 

treats products with multiple 

showerheads in a manner consistent 

with DOE’s treatment of similar 

products, such as body sprays. Body 

sprays are not included in the current 

definition of showerhead. A regulatory 

definition of showerhead that allows 

each showerhead in a multiheaded 

product to be tested for purposes of 

compliance with the 2.5 gpm standard 

provides more consistent regulatory 

treatment for these products than a 

definition that considers all of the 

showerheads together, essentially 

prohibiting products with multiple 

showerheads that are no different from 

body sprays in their water use. 

DOE also is defining the terms ‘‘body 

spray’’ and ‘‘safety shower showerhead’’ 

so that it is clear that these products are 

not considered showerheads subject to 

DOE’s test procedures and energy 

conservation standards. 

II. Authority and Background 

A. Authority 

Title III of EPCA (42 U.S.C. 6291, et 

seq.) sets forth a variety of provisions 

designed to improve energy efficiency 

and, for certain products, water 

efficiency.2 Part B of Title III, which for 

editorial reasons was redesignated as 

Part A upon incorporation into the U.S. 

Code (42 U.S.C. 6291–6309, as codified), 

establishes the ‘‘Energy Conservation 

Program for Consumer Products Other 

Than Automobiles,’’ which includes 


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3The 2011 guidance was superseded by the 

October 2013 final rule described. This final rule 

would supersede the 2013 final rule by providing 

for a different interpretation of the term 

‘‘showerhead’’ as defined in EPCA. 

4 DOE proposed to define ‘‘body spray’’ as a 

shower device for spraying water onto a bather from 

other than the overhead position. DOE proposed to 

define a ‘‘hand-held showerhead’’ as a showerhead 

that can be fixed in place or used as a movable 

accessory for directing water onto a bather. 

showerheads, the subject of this 

rulemaking. (42 U.S.C. 6292(a)(15)) 

Under EPCA, the energy conservation 

program consists essentially of four 

parts: (1) Testing, (2) labeling, (3) 

Federal energy conservation standards, 

and (4) certification and enforcement 

procedures. 

B. Background 

EPCA defines a showerhead simply as 

‘‘any showerhead (including a handheld 

showerhead), except a safety shower 

showerhead.’’ In addition to defining 

‘‘showerhead,’’ EPCA established a 

maximum water use threshold of 2.5 

gallons per minute (‘‘gpm’’) applicable 

to ‘‘any showerhead.’’ Both the 

definition of showerhead and the 2.5 

gpm standard were added to EPCA by 

the Energy Policy Act of 1992 (Pub. L. 

102–486; Oct. 24, 2991, ‘‘EPAct 1992’’). 

From 1992 to 2013, DOE regulations did 

not contain a separate definition of 

‘‘showerhead.’’ 

DOE issued a notice of availability of 

a proposed interpretive rule relating to 

the definition of showerhead in May 

2010. 75 FR 27926 (May 19, 2010). In 

the proposed interpretive rule, available 

at https://www.regulations.gov/ 

document?D=EERE-2010-BT-NOA-0016- 

0002, DOE noted that there were a 

myriad of showerhead designs marketed 

under names such as waterfalls, shower 

towers, rainheads and shower systems. 

DOE intended the proposed interpretive 

rule to address ‘‘uncertainty’’ in how the 

EPCA definition of showerhead and the 

2.5 gpm water conservation standard 

apply to such products, which have 

multiple nozzles. The proposed 

interpretive rule sought comment on 

DOE’s proposed interpretation of the 

term ‘‘showerhead’’ to mean ‘‘any 

plumbing fitting designed to direct 

water onto a bather,’’ including a fitting 

that comprises a set of showerheads, as 

conventionally understood (i.e., a set of 

accessories that each spray water onto a 

bather). Under this interpretation, the 

Department would find a ‘‘showerhead’’ 

(i.e., a fitting comprising multiple 

showerheads) to be noncompliant with 

EPCA’s maximum water use standard if 

the showerhead’s standard spraying 

‘‘components,’’ operating in their 

maximum design flow configuration 

and when taken together, use a total in 

excess of 2.5 gpm, even if each spraying 

component individually does not use an 

amount that exceeds 2.5 gpm. Id. 

DOE did not finalize the proposed 

interpretive rule. Instead, DOE 

withdrew the draft interpretive rule 

from review by OMB and in 2011 issued 

enforcement guidance that achieved 

essentially the same result. (See https:// 

www.energy.gov/sites/prod/files/gcprod/ 

documents/Showerhead_

Guidancel.pdf).3 The Department stated 

in the enforcement guidance that 

multiple spraying components, when 

sold together as a single unit designed 

to spray water onto a single bather, 

constitute a single showerhead for 

purposes of compliance with the 2.5 

gpm standard. The guidance did not 

apply to tub spouts, locker room 

showers, or emergency showers, or to 

handheld showers where the sprayer 

cannot run at the same time as the main 

nozzle. To determine whether a 

showerhead complied with the 

standard, DOE would measure a 

showerhead’s water use by turning on 

all of the unit’s sprays and nozzles to 

their maximum flow settings. Id. In 

issuing the guidance, DOE stated its 

view that the term ‘‘any showerhead’’ 

was sufficiently clear that no 

interpretive rule was needed. The 

Department also stated its view that this 

interpretation was consistent with both 

the industry standard incorporated into 

EPCA and the plain language and intent 

of Congress in establishing a maximum 

water use requirement for showerheads. 

Because manufacturers had developed 

the ‘‘myriad of products’’ referenced in 

the draft interpretive rule based on their 

‘‘apparent misunderstanding’’ of how to 

measure compliance with the 2.5 gpm 

standard, however, DOE provided an 

enforcement grace period of 2 years 

from issuance of the guidance for 

manufacturers to sell any remaining 

non-compliant multi-nozzle products 

and adjust product designs to ensure 

compliance with the standard. Id. 

DOE subsequently proposed to change 

its regulatory definition of showerhead 

as part of a proposed rule to revise the 

test procedures for showerheads and 

other products. 77 FR 31742, 31747– 

31748, 31755 (May 30, 2012). In that 

proposed rule, DOE proposed to adopt 

definitions for the terms ‘‘fitting’’ and 

‘‘accessory’’, as well as a definition of 

‘‘showerhead’’ that used those terms. 

Under DOE’s proposed definition, all 

components defined as an ‘‘accessory,’’ 

or a combined set of accessories, to a 

supply fitting represented a single 

covered product that would be required 

to meet the 2.5 gpm standard 

established in EPCA. 

Specifically, DOE proposed to define 

an ‘‘accessory’’, with respect to 

plumbing fittings, as a component that 

can, at the discretion of the user, be 

readily added, removed or replaced. 

Removal of the accessory will not 

prevent the fitting from fulfilling its 

primary function. 77 FR 31742, 31755. 

DOE proposed to define a ‘‘fitting’’ as a 

device that controls and guides the flow 

of water. Id. These definitions were 

consistent with the ASME definition 

current at that time, ASME A112–18.1– 

2011. DOE also proposed to define a 

‘‘showerhead’’; however, it defined that 

term in a manner different from the 

ASME definition. Specifically, the 

ASME standard defined ‘‘showerhead’’ 

as ‘‘an accessory to a supply fitting for 

spraying water onto a bather, typically 

from an overhead position.’’ DOE 

proposed to define a showerhead as ‘‘an 

accessory, or set of accessories, to a 

supply fitting distributed in commerce 

for attachment to a single supply fitting, 

for spraying water onto a bather, 

typically from an overhead position.’’ 

Id. DOE stated that the definition 

included body sprays and hand-held 

showerheads but did not include safety 

showerheads.4

In response to comments on the 

proposed rule, DOE issued a 

supplemental notice of proposed 

rulemaking (‘‘SNOPR’’) to revise the 

definitions of showerhead and handheld showerhead and to remove body 

sprays from the definition of 

showerhead. 78 FR 20832, 20834– 

28835, 20841 (Apr. 8, 2013) (‘‘April 

2013 SNOPR’’). Specifically, Kohler 

Company (‘‘Kohler’’) and Sloan Valve 

Company (‘‘Sloan Valve’’) responded to 

the proposal by recommending that 

DOE use the definition of showerhead 

in ASME A112.18.1–2011. The Natural 

Resources Defense Council (‘‘NRDC’’) 

commented that a showerhead should 

not be defined as an accessory, and both 

NRDC and the International Code 

Council supported including body 

sprays in the DOE definition. These 

comments were contrary to comments 

from the Plumbing Manufacturers 

International (‘‘PMI’’), Moen 

Incorporated (‘‘Moen’’) and Kohler, who 

stated that body sprays should not be 

included or considered an accessory 

because they cannot be readily added or 

removed by the user. Id. at 78 FR 

20834–28835. 

In the April 2013 SNOPR, DOE again 

declined to propose the ASME 

definition of showerhead. DOE reasoned 

that the ASME definition did not 

sufficiently address DOE’s regulatory 

coverage, because it did not specifically 

include hand-held showerheads or 

exclude safety showerheads. DOE also 


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81344 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

revised its proposed definition of 

showerhead (and hand-held 

showerhead) so that the term 

‘‘accessory’’ would not be included in 

the proposed definition. DOE instead 

proposed to use the undefined term 

‘‘component’’. Specifically, DOE 

proposed to define showerhead as ‘‘a 

component of a supply fitting, or set of 

components distributed in commerce 

for attachment to a single supply fitting, 

for spraying water onto a bather, 

typically from an overhead position, 

including hand-held showerheads but 

excluding safety shower showerheads.’’ 

78 FR 20832, 20841. DOE proposed that 

body sprays not be covered by the DOE 

definition of showerhead, stating that 

further study of the issue was needed 

before it could determine whether to 

include body sprays in the definition. 

78 FR 20832, 20834–20835. DOE also 

considered defining the term ‘‘safety 

shower showerhead’’ to address the 

question of which products qualify for 

exclusion from coverage under EPCA 

and DOE regulations. DOE noted that 

the Occupational Safety and Health 

Administration (‘‘OSHA’’) did not 

define the term, but that certain state 

regulatory requirements referenced 

ANSI standard Z358.1, Emergency 

Eyewash and Shower Equipment, which 

contains specific design and 

performance criteria that must be met, 

such as flow rate and accessibility. DOE 

stated that these criteria could help 

develop a definition of safety shower 

showerhead. Id. 

Industry commenters on the April 

2013 SNOPR, including Kohler, PMI, 

NSF International (‘‘NSF’’), the 

International Association of Plumbing 

and Mechanical Officials, Chicago 

Faucets, and Moen, stated that DOE 

should adopt the definition of 

showerhead in ASME A112.18.1. The 

majority of these commenters also 

supported DOE’s proposal not to 

include body sprays within the 

definition of showerhead. NRDC, the 

Appliance Standards Awareness Project, 

and the California Energy Commission 

did not support removal of body sprays 

from the definition. These comments are 

described in DOE’s final rule, published 

in October 2013. 78 FR 62970, 62973 

(Oct. 23, 2013) (‘‘October 2013 final 

rule’’). 

After considering these comments, 

DOE issued a final rule in October 2013 

adopting a slightly modified version of 

the definition set forth in the April 2013 

SNOPR. Specifically, DOE defined 

showerhead in the October 2013 final 

rule as ‘‘a component or set of 

components distributed in commerce 

for attachment to a single supply fitting, 

for spraying water onto a bather, 

typically from an overhead position, 

excluding safety shower showerheads.’’ 

78 FR 62970, 62973, 62986. DOE 

continued to include hand-held 

showerheads within the definition of 

showerhead. DOE excluded body sprays 

from the definition but did not finalize 

the definition of ‘‘body spray’’ set forth 

in the NOPR. DOE also declined to 

adopt a definition of ‘‘safety shower 

showerhead’’ to clarify those 

showerheads that EPCA had exempted 

from coverage. 

DOE issued a NOPR on August 13, 

2020 proposing to revise the current 

definition of ‘‘showerhead’’, to adopt 

definitions for ‘‘body spray’’ and ‘‘safety 

shower showerhead’’, and to clarify 

application of the current test procedure 

consistent with the proposed 

definitional changes. 85 FR 49284 

(‘‘August 2020 NOPR’’). DOE held a 

public webinar on September 3, 2020 to 

hear oral comments and solicit 

information relevant to the August 2020 

NOPR. 

III. Discussion 

Based on careful consideration of 

comments submitted during the 

comment period provided for this 

rulemaking, the Department is revising 

its prior interpretation of the EPCA 

definition of ‘‘showerhead’’ to interpret 

the term showerhead using the 

definition of the term in ASME 

A112.18.1–2018. DOE is also adopting 

definitions for the terms ‘‘body spray’’ 

and ‘‘safety shower showerhead.’’ DOE 

is not finalizing the proposal to clarify 

application of the test procedure 

discussed in the NOPR. 

DOE received comments including 

from the International Association of 

Plumbing and Mechanical Officials 

(‘‘IAPMO’’); Sierra Club and Earthjustice 

(the Joint Commenters); Alliance for 

Water Efficiency, et al. (‘‘AWE, et al.’’); 

Appliance Standards Awareness Project 

(‘‘ASAP’’), along with Alliance for 

Water Efficiency (‘‘AWE’’), Consumer 

Federation of America (‘‘CFA’’), the 

National Consumer Law Center, NRDC, 

the Northwest Energy Efficiency 

Alliance, and the American Council for 

an Energy-Efficiency Economy 

(‘‘ACEEE’’) (collective referred to as 

ASAP); the Competitive Enterprise 

Institute (CEI); interested consumers; 

and others. 

A. Justification for Showerhead 

Definition Revision 

1. Ambiguity in Showerhead Definition 

EPCA defines the term ‘‘showerhead’’ 

generically to ‘‘mean[] any showerhead 

(including a handheld showerhead), 

except a safety shower showerhead.’’ 

(42 U.S.C. 6291(31)(D)) In a May 2010 

draft interpretive rule, DOE stated that 

uncertainty existed in application of the 

EPCA definition of showerhead and the 

2.5 gpm standard to the ‘‘myriad of 

products’’ marketed under names such 

as waterfalls, shower towers, rainheads 

and shower systems. These products 

had been designed, manufactured, and 

marketed with knowledge of, and in the 

19 years since, the 1992 law that 

established a definition of showerhead 

and the applicable 2.5 gpm standard. 

Less than a year later, in March 2011, 

DOE published enforcement guidance 

defining the term showerhead in a 

manner that deviated significantly from 

the ASME definition by determining 

that products with multiple 

showerheads constitute only one 

showerhead for purposes of EPCA. In 

the enforcement guidance, DOE further 

stated that the term ‘‘any showerhead’’ 

in EPCA was ‘‘sufficiently clear such 

that no interpretive rule was needed’’. 

DOE reached this conclusion despite 

DOE’s statements in its 2010 draft 

interpretive rule about a lack of clarity 

and the development of the market 

since enactment of the 1992 definition 

of showerhead. Also despite the 

supposed clarity in the definition, DOE 

provided a two year grace period for 

manufacturers to sell products that the 

enforcement guidance in effect rendered 

noncompliant with the standard. DOE’s 

October 2013 final rule then codified in 

its regulations the showerhead 

definition set forth in the 2011 

enforcement guidance, rendering the 

guidance unnecessary. Following these 

developments, the number of multiheaded showerheads in the market 

decreased significantly from the 

‘‘myriad of products’’ cited by DOE in 

2010. 

DOE received comments in support of 

addressing ambiguity regarding the 

definition of a ‘‘showerhead.’’ (Grimm, 

No. 0065; CEI, No. 0058 at p. 2) Grimm 

supported the proposal that clarifies 

regulatory intent on the definition of 

showerhead and coincides with the 

current edition of the ASME voluntary 

standards. (Grimm, No. 0065) The 

Competitive Enterprise Institute (‘‘CEI’’) 

explained that historically there was 

some ambiguity regarding models with 

multiple showerheads and whether the 

2.5 gpm standard applied to each 

showerhead or the entire unit. (CEI, No. 

0058 at p. 2) 

DOE reiterates its view that ambiguity 

exists regarding what is considered a 

‘‘showerhead’’ under EPCA. To address 

this confusion noted by Grimm and the 

CEI, DOE is finalizing this rule to clarify 

what constitutes a showerhead, 

consistent with statutory direction that 


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DOE’s regulations for plumbing 

products, including showerheads, be 

based on the voluntary consensus 

definition in ASME A112.18.1–2018. 

Other commenters stated that there 

does not seem to be any ambiguity 

perceived by the industry or 

stakeholders. (Bay Area Water Supply & 

Conservation Agency (‘‘BAWSCA’’), No. 

0050 at p. 2; Walnut Valley Water 

District (‘‘WVWD’’), No. 0051 at p. 1) 

Miulli argued that DOE has admitted 

that the term ‘‘showerhead’’ is not 

ambiguous and that the 2-year grace 

period was not due to ambiguity, but 

rather to allow industry to adapt to new 

rules. (Miulli, No. 0052 at p. 2) Further, 

Miulli stated that manufacturers of 

showerheads have been complying with 

the testing requirements since 2016 

without evidence of ambiguity. To the 

extent that the DOE is basing this 

rulemaking on confusion within the 

industry, the DOE should disclose such 

evidence to the public. (Miulli, No. 0052 

at p. 2) 

In response, DOE notes that a number 

of considerations support the 

conclusion that the term ‘‘showerhead’’ 

in EPCA is ambiguous: (1) DOE’s own 

statements in the May 2010 draft 

interpretive rule; (2) the long-standing 

existence of waterfalls, shower towers 

and similar products on the market 

prior to DOE’s 2011 enforcement 

guidance that effectively eliminated 

these products; and (3) the two-year 

grace period DOE provided in the 

enforcement guidance in recognition of 

these products. Specifically, in relation 

to the two-year grace period, DOE stated 

that manufacturers had developed a 

myriad of products based on a 

‘‘misunderstanding’’ of how to measure 

compliance with the 2.5 gpm standard, 

and that the two year grace period 

provided manufacturers the time to 

adjust product designs to comply with 

the standard. (See https://

www.energy.gov/sites/prod/files/gcprod/ 

documents/Showerhead_

Guidancel.pdf.) DOE has historically 

noted that the term ‘‘showerhead’’ is 

ambiguous, as evidenced by the May 

2010 draft interpretative rule. If there 

was no ambiguity in what was meant by 

the definition of ‘‘showerhead’’, it is 

unclear why manufacturers would have 

developed so many noncompliant 

products during the time period from 

adoption of the definition in 1992 to the 

issuance of DOE’s enforcement guidance 

in 2011, and why a 2-year grace period 

was provided to allow for the sale of 

such product. Further, this final rule 

does not amend current test procedure 

for showerheads. Instead, this 

rulemaking aligns the definition of 

showerhead with that of the industry 

standard, ASME A112.18.1–2018. 

2. Reasoning for ‘‘Showerhead’’ 

Definition Revision 

DOE received comments questioning 

DOE’s reasoning for this rulemaking. 

(Shojinaga, No. 0015; Shepard, No. 

0020; Sheegog, No. 0014 at p. 1; White, 

No. 0013; ASAP, No. 0086 at p. 3–4; 

ASAP, Public Meeting Transcript at p. 

9) ASAP also stated that the information 

on the record and in the public domain 

demonstrates that the complaints are 

unfounded. In response, DOE reiterates 

that it is finalizing this rulemaking to 

address ambiguity regarding what 

constitutes a showerhead. 

CEC asserted that DOE’s proposed 

interpretation effectively creates 

regulatory loopholes that would exempt 

certain showerheads, specifically multiheaded showerheads and body sprays, 

from the maximum water flow standard 

set by Congress and as such, is not a 

‘‘permissible construction of the 

statute’’ nor is it ‘‘sufficiently 

reasonable’’ to effectuate the statutory 

language. If Congress had intended to 

exclude more showerheads than safety 

showerheads, it would have done so 

explicitly. (CEC, No. 0083 at p. 3) PIRG 

also claimed that Congress did not 

intend the ‘‘showerhead’’ definition to 

be based on ASME because other 

definitions in the same paragraph 

include the phrase ‘‘the meaning given 

such term in ASME A112.19.2M–1990.’’ 

(PIRG, No. 0082 at p. 6 citing 42 U.S.C. 

6291 (31)(F–H)) 

As DOE discussed in the August 2020 

NOPR, EPCA relies on ASME standard 

for the test method, the standards, and 

the marking and labeling requirements. 

In the definition section, immediately 

preceding the definition of showerhead, 

Congress also included definitions of 

ASME and ANSI. (42 U.S.C. 

6291(31)(B)–(C)) Because the other 

provisions in EPCA regarding 

showerheads relate to the ASME 

standard, Congress clearly intended that 

the definition would also align with the 

ASME standard. It would be 

inconsistent if the definition developed 

by DOE deviated significantly from the 

ASME definition such that it creates 

confusion in how to apply the standards 

and test methods. This final rule 

ensures that there is no confusion 

between the definition of showerhead 

and the testing and standard 

requirements for showerheads. In 

addition, DOE is not creating 

‘‘loopholes’’ in revising the regulatory 

definition; each showerhead in a multiheaded product would be required to 

comply with the standard. DOE further 

emphasizes that body sprays are not 

currently within the definition of 

showerhead under the 2013 final test 

procedure rule, so they are not currently 

subject to DOE’s testing requirements 

and the existing energy conservation 

standard. 

PIRG also argued DOE says EPAct 

1992 ‘‘relied on the ASME standard for 

measuring the water use of 

showerheads.’’ 85 FR 29290 (citing 42 

U.S.C. 6293(b)(7)). But the cited section 

states only that ‘‘[t]est procedures for 

showerheads . . . shall be the test 

procedures specified in ASME 

A112.18.1M–1989.’’ (42 U.S.C. 

6293(b)(7)) PIRG stated that test 

procedures simply measure water use— 

the rate of water flow through a fitting 

and through a nozzle (or multiple 

nozzles). (42 U.S.C. 6293(b)(3)) PIRG 

argued further that the cited statutory 

section says nothing about what 

constitutes a showerhead in the first 

place, or how much water should be 

allowed to flow through a nozzle. 

Making the test procedures depend on 

ASME’s methods certainly does not 

suggest that ASME documents should 

determine those broader questions of 

showerhead definition and cumulative 

flow. (PIRG, No. 0082 at pp. 6–7) CEC 

further claimed that because DOE is 

bound by EPCA, and ASME/ANSI is not 

so bound, Congress explicitly instructed 

DOE to adopt the ASME/ANSI test 

procedure unless the Secretary 

determines that the test procedure, 

including the instructions and relevant 

definitions, conflicts with EPCA. (CEC, 

No. 0083 at p. 4) 

As explained in the NOPR, the Energy 

Policy Act of 1992 illustrated Congress’ 

intent that DOE adhere to ASME 

standards. When EPCA was amended in 

1992 to define showerhead and to 

establish a test method and water 

conservation standard for showerheads, 

Congress specified that the test method 

applicable to showerheads is the 

procedure specified in ASME 

A112.18.1M–1989. (42 U.S.C. 

6293(b)(7)(A)) If that ASME standard is 

revised and approved by ANSI, DOE is 

required to amend its test procedures to 

conform to those revisions unless doing 

so would be inconsistent with other 

provisions of EPCA. (42 U.S.C. 

6293(b)(7)(B)) In the definition section, 

immediately preceding the definition of 

showerhead, Congress also included 

definitions of ASME and ANSI. 42 

U.S.C. 6291(31)(B)–(C). The 2.5 gpm 

standard required compliance with 

ASME/ANSI A112.18.1M–1989 with 

regard to the amount of force needed to 

remove the flow restrictor from the 

showerhead. (42 U.S.C. 6295(j)(1)) Even 

the marking and labeling requirements 

are required to be consistent with those 


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5The AWE stakeholders submitted two versions 

of their stakeholder letter. The first version is 

comment No. 0072; the second letter, which 

includes additional signatures, is the version 

referenced throughout this document. 

of ASME A112.18.1M–1989, or a 

subsequently revised version as 

appropriate. 42 U.S.C. 6294(a)(2)(E). 

While commenters are correct that 

EPCA does not include an explicit 

direction regarding the definition of 

showerhead, as discussed previously, 

DOE has found that reliance on the 

ASME standard for this final rule is 

consistent with Congress’s reliance on 

ASME. In particular, if the definition 

developed by DOE deviated 

significantly from the ASME definition, 

it would create confusion in how to 

apply the standards and test methods 

that Congress directed be consistent 

with ASME. 

The CA Investor-Owned Utilities 

(IOUs) argued that this proposal will 

introduce confusion into an established 

market. (CA IOUs, Public Meeting 

Transcript at p. 13) Commenters also 

claimed that the proposal is inconsistent 

with previous DOE statements regarding 

the ASME definition. (CA IOUs, Public 

Meeting Transcript at p. 13; Miulli, No. 

0052, pg. 3) PIRG also argued that none 

of DOE’s justifications provide any 

reasonable basis for changing the 

definition of showerhead so as to allow 

more than 2.5 gpm cumulatively from a 

single fitting. (PIRG, No. 0082 at p. 6) 

DOE disagrees that this final rule 

would introduce confusion into the 

market by aligning DOE’s definition of 

‘‘showerhead’’ with the ASME 

definition. DOE’s 2011 enforcement 

guidance introduced confusion such 

that the Department felt it necessary to 

provide a 2-year grace period for 

manufacturers to sell product that the 

guidance effectively rendered 

noncompliant. In contrast, this 

rulemaking ensures that the definition 

in DOE’s regulations aligns with that 

used in the ASME standard for 

showerheads, which is well known by 

manufacturers in the industry. As 

discussed throughout this document, 

DOE is only revising the definition of 

showerhead and has not amended the 

current energy conservation standard 

nor is it finalizing the test procedure 

clarifications. 

PIRG asserted that DOE’s supposed 

justification is that Congress preferred 

DOE to align with voluntary industry 

standards. 85 FR 49287 & n.5. Therefore, 

DOE says, it must adopt a definition of 

‘‘showerhead’’ consistent with the one 

in ASME’s current standard. PIRG notes 

that an ‘‘accessory,’’ under the ASME 

standards, can be ‘‘readily added, 

removed, or replaced.’’ As a result, PIRG 

asserts that DOE’s interpretation of the 

ASME definition of ‘‘showerhead’’ in 

the NOPR cannot be correct because 

ASME defines an accessory as ‘‘a 

component that can, at the discretion of 

the user, be readily added, removed, or 

replaced and that, when removed, will 

not prevent the fitting from fulfilling its 

primary function.’’ PIRG stated that 

removal of one showerhead from a 

multi-headed product would result in 

an uncontrolled jet of water from the 

empty port. As a result, because removal 

prevents the fitting from fulfilling its 

primary function, a single showerhead 

in a multi-headed product cannot, on its 

own, be considered a showerhead. PIRG 

further asserts that DOE used the word 

‘‘component’’ in the 2013 final rule 

because it wanted to be able to cover 

sprayers that cannot so easily be 

removed—namely, body sprays. DOE’s 

original proposed definition used the 

word ‘‘accessory,’’ but then explicitly 

included body sprays. As a result of 

commenters’ statements that body 

sprays are not accessories because they 

are not removable, PIRG states that DOE 

issued a supplemental proposal to 

switch from ‘‘accessory’’ to the word 

‘‘component’’ to eliminate removability 

as a criterion. (PIRG, No. 0082 at pp. 

4–5) 

Commenters also noted that to fulfill 

the intent of greater alignment noted in 

the NOPR, DOE should also incorporate 

the definitions of accessory, body spray, 

showerhead, and safety showerhead in 

the current ASME standard. (AWE, et 

al., No. 0079 at p. 2) 5 Other commenters 

stated that DOE has ignored defining 

key provisions including ‘‘accessory’’ 

and ‘‘supply fitting.’’ (Joint 

Commenters, No. 0085 at p. 3; ASAP, 

No. 0086 at pp. 3–4) 

DOE has adopted the ASME 

definitions for showerhead and body 

spray in this final rule. The term 

‘‘supply fitting’’ is not defined in the 

ASME standard. The term ‘‘safety 

shower showerhead’’ is also not defined 

in the ASME standard, but DOE has 

adopted as the definition of ‘‘safety 

shower showerhead’’ a showerhead that 

is consistent with the requirements of 

another voluntary consensus standard, 

ANSI Z358.1–2014, American National 

Standard for Emergency Eyewash and 

Shower Equipment. With regard to 

adoption of the term ‘‘accessory’’ in the 

ASME standard, DOE acknowledges 

commenters’ concerns regarding 

application of the ASME definition of 

‘‘accessory’’ (which includes 

showerheads) to a single showerhead in 

a multi-headed product, and the 

attendant result of removal of that 

showerhead. DOE notes, however, that 

removal of a showerhead with a single 

nozzle (as opposed to one showerhead 

from a multi-headed product) would 

also result in an ‘‘uncontrolled jet of 

water from the empty port’’. Because 

removal of that single showerhead 

would therefore also prevent the fitting 

from fulfilling its primary function, 

under the commenters’ approach, even 

a showerhead with a single nozzle 

would not be considered an accessory 

pursuant to the ASME definition. 

Therefore, the issue raised by 

commenters existed under DOE’s 2013 

regulatory definition of ‘‘showerhead,’’ 

though no concern had previously been 

expressed. 

DOE continues to believe it is not 

necessary to include the definition of 

‘‘accessory’’ in its regulations. ASME 

defines the term ‘‘accessory’’ to include 

a showerhead. DOE reads that definition 

of accessory in concert with the 

definition of showerhead to mean that a 

showerhead is a type of accessory and 

ASME makes clear that an accessory 

includes, as an example, showerheads. 

Accordingly, adding a definition of 

accessory (a commonly understood 

term) in DOE’s regulations would add 

nothing that is essential to an 

understanding of what constitutes a 

showerhead. 

In addition, and as stated previously, 

adoption of ASME’s definition of 

showerhead conforms to Congressional 

intent, and is also consistent with 

comments received by DOE in the 2013 

rulemaking that urged DOE to adopt the 

definition in the ASME standard. 78 FR 

20832, 20834. During this proceeding, 

questions arose related to the use of the 

word ‘‘accessory’’ and its impact on 

body sprays. DOE chose to use the 

phrase ‘‘component’’ rather than 

‘‘accessory’’ (which commenters 

indicated would not include body 

sprays), but did not address whether 

body sprays are included in 

showerheads. 78 FR 62970, 62972– 

62973 (Oct. 23, 2013). But as stated in 

the NOPR, an interest in retaining the 

ability to include body sprays within 

the regulatory definition of showerhead 

at some future time should not lead 

DOE to depart from the term 

‘‘accessory’’ that had been, and 

continues to be, used consistently in the 

ASME definition. Similarly, DOE now 

recognizes that defining products with 

multiple showerheads to constitute a 

single ‘‘showerhead’’ inappropriately 

expands the definition of ‘‘showerhead’’ 

beyond the ASME definition. 

With regard to whether 42 U.S.C. 

6295(o)(4) precluded DOE from 

effectively banning multi-nozzle 

showerheads, the Joint Commenters 

claimed that DOE has not shown any 

consumer utility in allowing higher 


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water use levels for multi-nozzle 

showerheads, much less the degree of 

utility that must be present to support 

invoking 42 U.S.C. 6295(o)(4). The Joint 

Commenters stated that DOE’s claim 

that 42 U.S.C. 6295(o)(4) somehow 

raises the bar for Congress to legislate a 

product out of existence by codifying an 

energy conservation standard is 

incorrect. That Congress chose to 

restrict DOE’s ability to adopt standards 

that would eliminate certain product 

features from the market says nothing 

about what a subsequent Congress 

intended when it enacted legislation 

that can reasonably be read to restrict 

the availability of certain products. 

(Joint Commenters, No. 0085 at p. 4) 

CEC argued that based on the plain 

language of the statute, section 

6295(o)(4) applies only to standards. 

However, CEC stated that DOE’s 2013 

final rule did not directly or effectively 

amend any standards; instead, it 

clarified existing authority and had no 

regulatory effect. CEC commented that 

DOE seems to reference 42 U.S.C. 

6295(o)(4) as evidence that DOE’s 

previous rulemaking was unlawful 

because it impermissibly resulted in the 

unavailability of a certain performance 

characteristic. (CEC, No. 0083 at p. 6) 

Commenters argued that DOE’s own 

analysis shows that the existing market 

includes multi-headed showerheads 

that meet the current standard. 

Therefore, no performance characteristic 

was eliminated from the market and 

DOE has not provided any evidence that 

consumers are not happy with the 

existing multi-headed showerheads. 

(CEC, No. 0083 at p. 6; PIRG, No. 0082 

at pp. 3–4) 

PIRG argued that DOE’s new 

interpretation is contrary to those 

standards and goals of EPAct 1992, as it 

will permit higher water usage. DOE has 

said plainly that the new interpretation 

will mean a three-nozzle showerhead 

counts, for purposes of the water 

conservation standard, as three 

showerheads, each permitted to emit 2.5 

gpm of water flow. Single-nozzle heads 

have been commonplace for decades, 

and single nozzles with 2.5 gpm flow 

have been the norm since DOE 

announced its current interpretation in 

2011. PIRG also asserted that DOE does 

not suggest the three-nozzle showerhead 

has a distinctive functionality, or a 

value as a product category that DOE’s 

2011 interpretation would have 

eliminated. If the standard is interpreted 

to apply only at the level of nozzles, 

then the sole functional difference is 

that the three-nozzle head would allow 

for exceeding the statutory maximum of 

2.5 gpm. Presumably, PIRG argues, DOE 

believes that consumers will value being 

able to get additional water flow from 

multiple nozzles. But that 

functionality—enabling increased water 

use beyond the maximum standard set 

by Congress—is not one that can justify 

a regulatory decision under EPCA. 

(PIRG, No. 0082 at p. 3) 

Section 6295(o)(4) of EPCA states that 

DOE may not prescribe a new or 

amended standard if the Secretary finds 

that the standard ‘‘is likely to result in 

the unavailability of performance 

characteristics and features that are 

substantially the same as those generally 

available in the United States at the time 

of the Secretary’s finding’’. DOE is 

uncertain as to the commenters’ 

reference to ‘‘value as a product 

category’’, as that term does not appear 

in 42 U.S.C. 6295(o)(4). With regard to 

the ‘‘distinct functionality’’, or whether 

being multi-headed as opposed to single 

headed is a ‘‘feature’’, DOE has 

previously determined that refrigeratorfreezer configurations, oven door 

windows, and top loading clothes 

washer configurations are all features. 

84 FR 33869, 33872 (July 16, 2019). 

DOE’s consideration of a two, three or 

eight showerheads (as opposed to one) 

in a given product as a ‘‘feature’’ is 

consistent with DOE’s previous 

rulemakings and determinations of what 

constitutes a feature. DOE also 

acknowledges, as is the case with this 

definitional rule, that the 2013 rule was 

not a standards rulemaking and did not 

comply with the statutory requirements 

of a standards rulemaking. The effect, 

however, was the same in that multiheaded showerhead products, while not 

entirely eliminated from the market, 

were significantly reduced in 

availability as a result of the 2011 

enforcement guidance. In addition, DOE 

acknowledges that Congress may pass 

legislation to eliminate a performance 

characteristic or feature from the 

market. The Joint Commenters imply 

that in establishing the 2.5 gpm 

standard, Congress intended to restrict 

the availability of certain showerheads 

in the market. (See Joint Commenter, 

No. 0085 at p. 4) In 42 U.S.C. 6295(j)(1), 

EPCA sets a maximum water use 

standard for showerheads, but it does 

not provide any other restrictions about 

how the showerhead is designed beyond 

that it must meet the requirements of 

ASME/ANSI A112.18.1M–1989, 

7.4.3(a). Contrary to commenters’ 

assertions, Congress did not act to 

remove products from the market. 

Commenters stated that DOE violated 

the Administrative Procedure Act (APA) 

in proposing to revise the regulatory 

definition of showerhead. (PIRG, No. 

0082 at p. 14; Center for Biological 

Diversity, No. 0071 at pp. 1–2; AWE, 

No. 0080 at p. 3) PIRG stated that the 

proposal falls far short of what the APA 

requires for such a substantial change. 

PIRG also asked DOE to provide 

information on: What products exist 

currently with multiple nozzles? How 

popular will high-flow showerheads be? 

How much additional water will 

showers consume? How much energy 

will that cost? How long will it take 

manufacturers to design, and retool to 

make these products and what is the 

cost? (PIRG, No. 0082 at p. 14) The 

Center for Biological Diversity also 

argues that DOE violated the APA by 

failing to provide analysis of its impact 

on the environment or threatened or 

endangered species. The commenter 

cites the Supreme Court decision in 

(Burlington Truck Lines, Inc. v. United 

States, 371 U.S. 156, 371 (1962) to assert 

that for DOE’s showerhead NOPR, as 

with the rule at issue in that case, there 

are no findings and no analysis to justify 

the choice made, and no indication of 

the basis on which the agency exercised 

its expert discretion. The Court stated 

that the Court was not prepared to, nor 

would the APA permit the Court to, 

accept agency promulgation of a rule 

under such circumstances. 

AWE cited to Encino Motorcars v. 

Navarro (2016), stating that the U.S. 

Supreme Court has required agencies 

attempting to change definitional 

standards that have actual legal effects 

to explain the change in greater detail 

than if they were rulemaking for the first 

time. Changes in agency interpretations 

may be arbitrary and capricious under 

the APA unless fully explained and the 

implication of the change fully set forth. 

(AWE, No. 0080 at p. 3) The Joint 

Commenters argued that were DOE to 

follow its own professed rationale and 

align its regulations with ASME, each 

nozzle in a multi-nozzle showerhead 

would not meet the Department’s 

proposed ‘‘showerhead’’ definition. 

DOE’s refusal to act in accord with its 

own reasoning renders the proposal 

arbitrary and capricious. (Joint 

Commenter, No. 0085 at p. 3 (citing Air 

Transport Ass’n v. DOT, 119 F.3d 38, 43 

(D.C. Cir. 1997) (‘‘the most serious 

logical problem’’ with the agency’s 

regulation—which the Court ‘‘simply 

cannot accept’’—is that agency’s 

explanation ‘‘is internally 

inconsistent’’).) 

DOE has met the APA’s requirements 

for issuing a final rule and has 

explained its reasoning for revising the 

definition of showerhead and defining 

body spray and safety shower 

showerhead. As discussed in Section II 

of the NOPR and section III of this final 

rule, DOE has explained in detail the 


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reasons for the definitional change. 

With respect to the information 

requested by PIRG, DOE provided 

information in the NOPR with regard to 

the very small percentage of multiheaded showerheads available on the 

market today. Other information 

requested by PIRG is speculative (e.g., 

How popular will high-flow 

showerheads be? How much additional 

water will showers consume? How 

much energy will that cost? How long 

will it take manufacturers to design, and 

retool to make these products and what 

is the cost?) DOE emphasizes that the 

rule does not impose costs on 

manufacturers or consumers. The rule 

instead revises the regulatory definition 

of showerhead consistent with 

congressional intent. DOE does not 

dictate manufacturing or consumer 

purchasing choices as a result of this 

rule, and manufacturers can choose 

whether to produce multi-headed 

showerhead products depending on 

their particular circumstances. 

3. NTTAA and OMB Circular A–119 

In accordance with the NTTAA, OMB 

Circular A–119, and EPCA, DOE 

proposed to adopt definitions from 

voluntary consensus standards. 85 FR 

49284, 49289–49291. DOE received 

comments regarding the appropriateness 

of relying on the consensus industry 

standards as it relates to showerhead. 

PIRG claimed that DOE cannot rely on 

the NTTAA to justify its matching of the 

definition of showerhead to the ASME 

standard. The 2.5 gpm showerhead 

maximum flow rate was not a policy 

objective determined by DOE; it was a 

water conservation standard determined 

by Congress. NTTAA does not instruct 

DOE to base its interpretation of 

Congress’s policy by referring to 

industry standards. NTTAA itself states 

that an agency should not follow an 

industry standard where that is 

‘‘inconsistent with applicable law.’’ 

Public Law 104–113, 12(d), 110 Stat. 

775, 783. And as discussed, EPAct 1992 

described in detail how the 

showerheads program should interact 

with ASME standards—NTTAA does 

not repeal or amend those directives. 

(PIRG, No. 0082 at p. 8) 

PIRG argued that DOE’s reliance on 

OMB Circular A–119 is misplaced for 

the same reasons. To state the obvious, 

Circular A–119 cannot trump the 

statute. Like the NTTAA, Circular A– 

119 does not instruct an agency to 

follow industry standards where doing 

so would be ‘‘inconsistent with 

applicable law.’’ 85 FR 49287 n.5. In 

particular, Congress specified the policy 

goals that DOE must consider when it 

makes rules under EPCA. Circular A– 

119 cannot supplant those policy goals 

with an extra-statutory mandate. (PIRG, 

No. 0082 at p. 8) Commenters also 

argued that the reference to OMB 

Circular A–119 and DOE’s explanation 

clearly points out the inappropriateness 

of this proposed changed in the 

definition, because the ASME definition 

frustrates and is inconsistent with the 

statutory requirement to establish and 

maintain an upper bound no the 

flowrate of showerhead. (NRDC, No. 

0033 at pp. 21–22; Joint Commenters, 

No. 0085 at pp. 3–4) Earthjustice 

questioned whether the proposed 

testing requirements that you only test 

the nozzle with the highest flow is 

consistent with the ASME standard; if 

not, this would seem inconsistent with 

DOE’s rationale for this rulemaking. 

(Earthjustice, Public Meeting Transcript 

at pp. 18–19) 

DOE considered the requirements of 

the NTTAA when developing its 

definitions. The NTTAA requires DOE 

to use voluntary consensus standards in 

lieu of government-unique standards in 

their regulatory activities, except where 

inconsistent with law or otherwise 

impractical. (See Pub. L. 104–113, 

section 12(d), Mar. 7, 1996, 110 Stat. 

783, as amended by Pub. L. 107–107, 

Div. A, Title XI, section 1115, Dec. 28, 

2001, 115 Stat. 1241 (‘‘NTTAA’’), 15 

U.S.C. 272 note https://

www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/circulars/ 

A119/revised_circular_a-119_as_of_1_

22.pdf.) As the commenters note, OMB 

Circular A–119 directs Federal agencies 

to use voluntary consensus standards 

unless inconsistent with applicable law 

or otherwise impracticable. EPCA 

certainly does not preclude DOE from 

using such industry standards. The 

statutory text of EPCA does not make 

compliance with OMB Circular A–119 

inconsistent with applicable law or 

otherwise impracticable. DOE disagrees 

that the ASME definition frustrates and 

is inconsistent with the requirements of 

EPCA. Similar to the discussion above 

in regards to NTTAA, DOE has 

concluded that its definition, which is 

the same as the ASME definition, is 

compliant with EPCA. DOE has also 

determined that it is practicable to 

adopt the ASME definition. The ASME 

definition is well understood by 

showerhead manufacturers. In addition, 

contrary to DOE’s reasoning in the 2013 

rulemaking, it is not necessary that the 

ASME definition specifically exclude 

safety showerheads, because EPCA 

already does so. 

B. Anti-Backsliding Consideration 

When establishing a new product 

class, DOE must consider EPCA’s 

general prohibition against prescribing 

‘‘any amended standard which increases 

the maximum allowable energy use, or, 

in the case of showerheads, faucets, 

water closets, or urinals, water use, or 

decreases the minimum required energy 

efficiency, of a covered product’’ in any 

rulemaking to establish standards for a 

separate product class. (42 U.S.C. 

6295(o)(1)) 

Commenters argued that the rule is an 

attempt to circumvent the federal 

standards in EPCA. (Save Water, No. 

0031; Fisseler, No. 0032; Northwest 

Power and Conservation Council 

(‘‘NPCC’’), No. 0060 at p. 2) Further, 

commenters stated that the proposal is 

a violation of the anti-backsliding 

provision. (ASAP, No. 0086 at p. 5: 

PIRG, No. 0082 at p. 9; Davis, No. 0064 

at p. 1) Los Angeles Department of 

Water and Power (‘‘LADWP’’) claimed 

that the proposed definitions violate the 

anti-backsliding provision because they 

will allow for both increased water and 

energy usage due to the augmented 

water consumption, higher operational 

energy demands, and diminished water 

conservation. (LADWP, No. 0066 at p. 3) 

Commenters stated that EPCA’s antibacksliding provision prohibits DOE 

from prescribing any amended standard 

which increases the maximum 

allowable . . . water use. (CEC, No. 

0083 at p. 6; the Joint Commenters, No. 

0085 at p. 1; PIRG, No. 0082 at p. 9) CEC 

argued that the anti-backsliding clause 

must be read to restrict DOE’s 

subsequent discretionary ability to 

weaken that standard at any point 

thereafter. (CEC, No. 0083 at p. 6) The 

Joint Commenters noted that as the 

Congress that enacted the provision 

explained, this rigidity serves an 

important purpose: ‘‘to maintain a 

climate of relative stability with respect 

to future planning by all interested 

parties.’’ (Joint Commenters, No. 0085 at 

p. 1 (citing H.R. Rep. No. 100–11 (Mar. 

3, 1987) at 22)) 

Commenters argued that it is not 

plausible that Congress prohibited DOE 

from prescribing increases in the 

maximum allowable water use of a 

showerhead, while also permitting DOE 

to increase water use by redefining a 

term, citing NRDC v.Abraham, 355 F.3d 

179, 197 (2d Cir. 2004). (Joint 

Commenters, No. 0085 at p. 2, PIRG, No. 

0082 at p. 9) The commenters argued 

that EPCA’s anti-backsliding provision 

must be interpreted in light of ‘‘the 

appliance program’s goal of steadily 

increasing the energy efficiency of 

covered products’’ and Congress’ intent 

to provide a ‘‘sense of certainty on the 

part of manufacturers as to the required 

energy efficiency standards.’’ Abraham, 

355 F.3d at 197. In addition, reading 


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6 DOE finds the Hearth, Patio & Barbecue 

Association decision inapplicable to this 

rulemaking. In that case, the court determined that 

DOE could not simply define direct heating 

equipment to include decorative fireplaces, because 

Congress did not intend for decorative fireplaces to 

be considered direct heating equipment. The court 

instead determined that DOE should have issued a 

coverage determination, with the attendant required 

findings, prior to establishing standards for 

decorative fireplaces. In this rule, there is no 

suggestion that a coverage determination is 

necessary or appropriate. That is, the statute clearly 

applies to showerheads. Instead, DOE is revising its 

regulatory definition consistent with statutory 

intent such that each showerhead in a multi-headed 

product must comply with the 2.5 gpm standard 

established in EPCA. 

EPCA this way would ‘‘effectively 

render’’ the anti-backsliding provision 

‘‘inoperative’’ or a ‘‘nullity.’’ (PIRG, No. 

0082 at p. 9 citing Abraham, 355 F.3d 

at 197; Joint Commenters, No. 0085 at 

pp. 1–3 citing Abraham, 355 F.3d at 197 

and referencing Hearth, Patio & 

Barbecue Association v. DOE, 706 F.3d 

499, 508 (D.C. Cir. 2013) (observing that 

changes to covered product definitions 

can ‘‘effectuate[ ] [a] workaround of 

statutory limits’’ applicable to energy 

conservation standards under EPCA’’). 

EPCA’s anti-backsliding provision 

prohibits DOE from prescribing ‘‘any 

amended standard which increases the 

maximum allowable energy use, or, in 

the case of showerheads, faucets, water 

closets, or urinals, water use, or 

decreases the minimum required energy 

efficiency, of a covered product.’’ (42 

U.S.C. 6295(o)(1)) In this rulemaking, 

DOE is not amending the current energy 

conservation standard. If DOE were to 

do so, those standards would be 

established through DOE’s standardssetting rulemaking process, which is 

governed by the Department’s Process 

Rule and includes multiple distinct 

steps and includes opportunities for 

public comment. In the absence of such 

a rulemaking, neither DOE nor 

commenters can conclude that the 

revised definitions amend the standards 

currently applicable to showerheads. To 

argue otherwise, as commenters do, 

would mean that DOE undertook an 

unauthorized standards rulemaking in 

2013. 

DOE disagrees with commenters’ 

reliance on NRDC v. Abraham to 

support their anti-backsliding argument. 

In that case, the Second Circuit held 

that the publication date in the Federal 

Register of a final rule establishing an 

energy conservation standard operates 

as the point at which EPCA’s antibacksliding provision applies to a new 

or amended standard. 355 F.3d at 196. 

This case is inapplicable to the present 

rulemaking because DOE has not yet 

published a final rule amending 

standards for showerheads. In this 

rulemaking, DOE is only finalizing 

definitions for showerheads.6

The Joint Commenters also claimed 

that other provisions of EPCA confirm 

the applicability of the statute’s antibacksliding provision to actions that 

alter regulatory definitions in ways that 

weaken the standards applicable to a 

covered product. EPCA broadly 

authorizes DOE to classify additional 

consumer products and commercial 

equipment as covered products and 

equipment subject to energy 

conservation standards. (42 U.S.C. 

6292(a)(20), (b), 42 U.S.C. 6311(1)(L), 42 

U.S.C. 6312(b)) In contrast, the statute 

confers no similarly broad authority to 

terminate the coverage of a product and 

allows products to be exempted from 

standards only under specified 

circumstances. The handful of EPCA 

provisions explicitly authorizing DOE 

actions that weaken energy conservation 

standards are the exceptions that prove 

the rule: the anti-backsliding provision 

blocks those changes to product 

definitions that would result in weaker 

standards. (Joint Commenters, No. 0085 

at pp. 2–3) 

DOE disagrees with the Joint 

Commenters’ assertion that EPCA’s antibacksliding provision applies to changes 

to a definition. As discussed above, the 

language in 42 U.S.C. 6295(o)(1) 

prohibits DOE from prescribing an 

amended standard that results in a 

reduction in energy efficiency or 

increase in energy use. That provision 

does not limit DOE’s discretion to 

amend definitions for covered products. 

PIRG contended that in recent briefing 

on the standards for general service 

lamps, DOE asserted that it could undo 

or revise a prior standard, despite the 

anti-backsliding rule, if the previous 

standard was incorrect. The Second 

Circuit has already rejected that 

proposition with respect to EPCA itself, 

NRDC v. Abraham, 355 F.3d 179 (2d Cir. 

2004). Besides, DOE has not even 

suggested that its existing interpretation 

of ‘‘showerhead’’ is incorrect. A shift in 

policy preference like that is certainly 

not an exception to the anti-backsliding 

rule. Nor can an error in the reasoning 

for a prior regulation, if there was one, 

exempt it from the anti-backsliding 

provision. According to the commenter, 

DOE purports to frame its revision as 

part of a test procedure rather than a 

standard. In fact, the regulatory 

definition at issue applies across the 

showerhead regulations—to the 

standard as well as to the test 

procedures. 10 CFR 430.2. Moreover, 

even if DOE were only amending a test 

procedure, it would still be engaged in 

impermissible backsliding. (PIRG, No. 

0082 at pp. 9–10 (citing 42 U.S.C. 

6293(e)) 

DOE is not amending the current 

energy conservation standards in this 

rulemaking, nor has DOE asserted that 

the current standard is incorrect. The 

adoption of new or revised definitions 

for a product, including showerheads, 

does not implicate the anti-backsliding 

provision because it is not a standard 

nor does it alter the current standards. 

Further as discussed previously, DOE 

developed this rulemaking as a result of 

ambiguity regarding what products fall 

under the definition of ‘‘showerhead.’’ 

Accordingly, the revised definition will 

provide clarity regarding what products 

qualify as a showerhead. DOE agrees 

that the definition of ‘‘showerhead’’ 

applies to test procedures, standards, 

and labeling. 

The August 2020 NOPR included 

references to the test procedure for 

showerheads because DOE had 

proposed clarifications to the test 

procedure. DOE has decided not to 

finalize its test procedure clarification 

proposal. 

C. Definition of Body Spray and Safety 

Shower Showerhead 

In the proposed rule, DOE proposed 

to define the term ‘‘body spray’’ 

separately from the definition of 

showerhead, defining ‘‘body spray’’ as a 

‘‘shower device for spraying onto a 

bather other than from the overhead 

position.’’ 85 FR 42984, 49291. DOE 

also proposed to adopt the ANSI 

standard as the definition of ‘‘safety 

shower showerhead’’: ‘‘a device 

specifically designed and intended to 

deliver a flushing fluid in sufficient 

volume to cause that fluid to cascade 

over the entire body.’’ 85 FR 49284, 

49292. DOE received general comments 

opposing the proposed definitions that 

would remove ‘‘body spray’’ and ‘‘safety 

shower showerhead’’ from the 

definition of showerhead, such that 

energy conservation standards do not 

apply to body sprays and safety shower 

showerheads. (Hare, No. 0012; Cohen, 

No. 0036; City of Santa Rosa Water 

Department (‘‘Santa Rosa Water’’), No. 

0037 at p. 2; BAWSCA, No. 0050 at p. 

2; WVWD, No. 0051 at p. 1; City of 

Tucson, No. 0052 at p. 1; Western 

Municipal Water District, No. 0054; City 

of Sacramento Department of Utilities, 

No. 0055 at p. 2) 

DOE notes that the current definition 

of ‘‘showerhead’’ in 42 U.S.C. 

6291(31)(D) and 10 CFR 430.2 both 

exempt ‘‘safety shower showerheads’’ 

from the definition of showerheads. 

This rulemaking does not alter the 

current exception of ‘‘safety shower 

showerheads’’ from the definition of a 


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‘‘showerhead’’. Instead, DOE defines 

what products are considered safety 

shower showerheads. In regards to 

‘‘body sprays’’, as discussed below, this 

rulemaking clarifies ambiguity resulting 

about whether ‘‘body sprays’’ fall under 

the definition of showerhead. It is 

important to note that DOE has not 

changed the current water conservation 

standard in this rulemaking. 

1. Body Spray 

In the proposed rule, DOE proposed 

to define the term ‘‘body spray’’ 

separately from the definition of 

showerhead, defining ‘‘body spray’’ as a 

‘‘shower device for spraying onto a 

bather other than from the overhead 

position.’’ 85 FR 42984, 49291. Thus, 

DOE’s regulations would make clear 

that body sprays are not covered by 

DOE’s test procedure or the energy 

conservation standard applicable to 

showerheads, consistent with DOE’s 

proposed interpretation of the term 

‘‘showerhead.’’ Id. 

Consumer Research supported the 

proposal, stating that the term ‘‘body 

spray’’ is left undefined in the current 

rule, leaving it unclear whether body 

sprays are subject to the 2.5 gpm limit. 

The rule remedies this situation, again 

adopting language consistent with the 

current ASME standard, ASME 

A112.18.1–2018, and makes it clear that 

body sprays are not showerheads. 

(Consumer Research, No. 0039 at pp. 3– 

4) 

DOE has concluded that the definition 

of showerhead in the October 2013 

Final Rule did not specifically include 

or exclude body sprays. DOE agrees that 

this omission may have introduced 

uncertainty for regulated parties and 

that it is appropriate to clarify that body 

sprays are not showerheads. 

Commenters also raised concerns that 

the proposed rulemaking will result in 

wasteful and unnecessary ‘‘deluge’’ 

showers, which will also consume 

much more hot water increasing energy 

consumption. (BAWSCA, No. 0050 at p. 

3; WVWD, No. 0051 at p. 2; AWE, et. al, 

No. 0079 at p. 2) AWE argued that U.S. 

plumbing codes require body sprays to 

comply with the current ASME 

A112.18.1/CSA B125.1 standard, which 

requires body sprays to flow no more 

than 2.5 gpm. If DOE exempts body 

sprays instead of aligning the definition 

with that in the industry standard, 

consumers will be able to purchase 

higher flow body sprays, but they will 

not be able to legally install them. 

(AWE, et al., No. 0079 at pp. 2–3) 

Commenters stated that under the 

proposal, body sprays would not be 

covered under DOE’s test procedure or 

the energy conservation standard 

applicable to showerheads, which 

would allow body sprays to be 

developed with no limits on flow rate. 

(NPCC, No. 0060 at p. 2; Santa Clara 

Valley Water District (‘‘Valley Water’’), 

No. 0076 at p. 1) 

CEC also raised concerns that DOE’s 

proposed definition for body sprays 

relies solely on manufacturer intent and 

consumer installation decision, rather 

than discernable technical differences 

between the products. CEC argued that 

the proposed definition is overly broad 

and this ambiguity is compounded by 

the phrase defining showerhead as 

being ‘‘typically from an overhead 

position.’’ The word ‘‘typically’’ is not 

specific and inserts ambiguity and 

discretion into DOE’s regulation. 

Because the definitions together are 

fundamentally subjective, excluding 

body sprays and adopting the ASME 

definition for them creates a loophole 

that could be used to circumvent 

Congress’s maximum water flow of 2.5 

gpm for any showerhead. (CEC, No. 

0083 at p. 3) 

The CA IOUs argued that in their 

analysis the marketplace does not 

clearly distinguish stand-alone body 

sprays from conventional showerheads. 

(CA IOUs, No. 0084 at p. 3) The CA 

IOUs also conducted a review of retailer 

websites that indicated that shower 

units with body spray capability are 

generally marketed or sold as 

combination shower systems or shower 

panels with an overhead showerhead 

component. Without a reliable way to 

distinguish stand-alone body sprays 

from other showerheads, retailers, 

consumers, and test labs will have no 

way to determine if a product is a body 

spray and exempt from current water 

conservation standards. The CA IOUs 

argue that industry considers body 

sprays a form of showerhead, and thus 

that action that exempts body sprays 

will result in backsliding. (CA IOUS, 

No. 0084 at pp. 4–5) The CA IOUs also 

highlight the WELS, WaterSense, EPA– 

2018, NCC, and EU standards to discuss 

how 3 of the 5 standards do not have an 

orientation requirement for 

showerheads and that 4 of the 5 

standards treat multi-spray products 

and body spray components similarly. 

(CA IOUs, No. 0084 at p. 12) 

DOE has determined that leaving the 

scope of products not subject to EPCA’s 

energy conservation standard 

undefined, and potentially subjecting 

manufacturers of body sprays to DOE 

standards, causes more confusion than 

establishing a regulatory definition. In 

this rulemaking, DOE determined it was 

appropriate to clarify the existing 

ambiguity following the October 2013 

Final Rule that did not include body 

sprays within the definition of 

‘‘showerhead,’’ and also did not define 

what constituted a ‘‘body spray’’. This 

rulemaking clarifies the definitions of 

showerhead and body spray. DOE 

believes that defining what constitutes a 

‘‘body spray’’ will help to distinguish 

‘‘body sprays’’ from showerheads. 

Further, CEC and the CA IOUs raised 

concern about how consumers may 

install body sprays. (CEC, No. 0083 at 

p.3; CA IOUs, No. 0084 at p.12) Under 

EPCA, DOE does not have the authority 

to regulate where a consumer locates a 

showerhead after purchase. DOE notes 

its final rule does not affect any existing 

building code requirements, but 

emphasizes that neither its current 

regulation nor this final rule include 

body sprays as showerheads, and DOE 

recognizes the importance of clarity 

with regard to what products 

manufacturers must certify to DOE to 

demonstrate standards compliance. 

2. Safety Shower Showerhead 

DOE also proposed to adopt the ANSI 

standard as the definition of ‘‘safety 

shower showerhead’’: ‘‘a device 

specifically designed and intended to 

deliver a flushing fluid in sufficient 

volume to cause that fluid to cascade 

over the entire body.’’ 85 FR 49284, 

49292. In DOE’s October 2013 final rule 

establishing the current definition of 

‘‘showerhead’’, DOE declined to define 

the term ‘‘safety shower showerhead,’’ 

which meant that the class of 

showerheads that EPCA excluded from 

standards was undefined and subject to 

DOE’s discretion as to what was 

considered a safety shower showerhead. 

DOE noted in the October 2013 final 

rule that ANSI standard Z358.1, 

‘‘Emergency Eyewash and Shower 

Equipment’’, defines an emergency 

shower as ‘‘a device specifically 

designed and intended to deliver a 

flushing fluid in sufficient volume to 

cause that fluid to cascade over the 

entire body.’’ 78 FR 62970, 62974; Oct. 

23, 2013. Commenters, including NSF 

and PMI, supported inclusion of the 

definition of safety shower showerhead 

consistent with the requirements of 

ANSI standard Z358.1. At the time, DOE 

declined to adopt this definition, stating 

that DOE could not identify a definition 

that would clearly distinguish these 

products from showerheads covered 

under EPCA and that adopting an 

unclear definition would cause 

additional confusion. Id. Upon further 

reflection, DOE is of the view that 

leaving the scope of products not 

subject to EPCA’s energy conservation 

standards undefined, and potentially 

subjecting manufacturers of safety 

shower showerheads to DOE standards 


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7ANSI/ISEA Standard Z358.1–2014, American 

National Standard for Emergency Eyewash and 

Shower Equipment. 

when EPCA specifically excluded them 

from coverage, causes confusion and is 

inappropriate. What is meant by a 

‘‘safety shower showerhead’’ or 

emergency shower is understood in the 

regulated industry, and DOE believes 

that it is unlikely that manufacturers of 

showerheads intended for use by 

residential consumers would design a 

showerhead to meet the specifications 

of the ANSI standard to avoid 

compliance with DOE standards. In this 

final rule, DOE is incorporating by 

reference the definition of safety shower 

showerhead from American National 

Standards Institute/International Safety 

Equipment Association (‘‘ANSI/ISEA’’) 

Z358.1–2014: ‘‘a showerhead that is 

designed to meet the requirements of 

ANSI Standard Z358.1.’’ 

Commenters proposed that DOE 

define safety shower showerheads 

according to ANSI Z358.1. (CA IOUs, 

Public Meeting Transcript at pp. 33–34; 

ASAP, No. 0086 at p.6; ASAP, Public 

Meeting Transcript at p. 24; CA IOUs, 

No. 0084 at pp. 12–13) ASAP asserted 

that the proposed definition of ‘‘safety 

shower showerhead’’ is too broad and 

that many showerheads sold for bathing 

could be viewed as meeting this 

definition. (ASAP, No. 0086 at p. 6) 

Specifically, the commenters proposed 

that DOE adopt the full definition of 

safety shower showerheads from ANSI 

Z–358.1–2014 including definitions for 

terms used in the emergency shower 

definition and criteria related to flow 

rate, pattern, fluid temperature, and 

installation. (CA IOUs, Public Meeting 

Transcript at pp. 33–34; CA IOUs, No. 

0084 at pp. 12–13; ASAP, No. 0086 at 

p. 6) 

DOE agrees with the commenters that 

the proposed definition is overly broad 

and does not provide clarity as to what 

the specific terms in the ‘‘safety shower 

showerhead’’ definition mean. In the 

October 2013 Final Rule, DOE declined 

to adopt ANSI definition of ‘‘emergency 

shower’’ as the definition for ‘‘safety 

shower showerhead’’ because DOE 

could not identify a definition that 

would clearly distinguish these 

products from showerheads covered 

under EPCA and that adopting an 

unclear definition would cause 

additional confusion. 78 FR 62970, 

62974. The adoption of the ANSI 

definition of ‘‘emergency shower’’ by 

itself, as proposed in August 2020 

NOPR, does not clearly explain what 

differentiates a ‘‘safety shower 

showerhead’’ from a ‘‘showerhead.’’ 

Accordingly, DOE is defining ‘‘safety 

shower showerhead’’ to mean a 

showerhead designed to meet the 

requirements of ANSI/ISEA Z358.1 

(incorporated by reference, see § 430.3). 

This standard sets forth specific 

performance criteria for emergency 

shower and would require that ‘‘safety 

shower showerheads’’: (1) Be capable of 

delivering flushing fluid at a minimum 

of 75.7 liters per minute (or 20 gpm) for 

a minimum of 15 minutes; (2) have a 

spray pattern with a minimum diameter 

of 50.8 centimeters (cm) (or 20 in.) at a 

height of 153.4 cm (or 60 in.) above the 

surface on which the user standards, 

and the center of the spray pattern shall 

be located at least 40.6 cm (or 16 in.) 

from any obstruction and that the 

flushing fluid shall be substantially 

dispersed throughout the pattern; (3) 

deliver tepid flushing fluid, where 

‘‘tepid’’ is defined as a ‘‘flushing fluid 

temperature conducive to promoting a 

minimum 15-minute irrigation period.’’ 

(a suitable range is 16 °C to 38 °C (60 °F 

to 100 °F)); (4) be located in an area 

identified with a highly visible sign 

positioned so the sign shall be visible 

within the area served by the emergency 

shower; and (5) be operable with a valve 

that can be opened in under one second 

and remained open without user 

intervention for the duration of a flush.7

The inclusion of the related definitions 

and performance criteria in the 

definition of ‘‘safety shower 

showerhead’’ addresses the concerns 

noted by commenters and clearly 

distinguishes a ‘‘showerhead’’ from a 

‘‘safety shower showerhead.’’ 

D. Testing Requirements 

In the August 2020 NOPR, DOE 

proposed to amend the testing provision 

in appendix S to subpart B of 10 CFR 

part 430 to address the testing of a 

single showerhead in a product with 

multiple showerheads. DOE proposed 

that a measurement would be required 

for only one showerhead when all 

showerheads in the product are 

identical. If the showerheads in such a 

product are not identical, only the 

showerhead with the maximum water 

flow would need to be tested to 

determine compliance with the 2.5 gpm 

standard. Additionally, DOE proposed 

to specify that where it is not possible 

to turn on only the showerhead being 

testing, testing would be performed with 

all showerheads flowing at the 

maximum rate. Measurement would be 

taken of only the showerhead under 

test. 85 FR 49284, 49292. In this final 

rule, DOE is not finalizing the proposed 

testing clarifications. Instead, as noted 

previously, DOE emphasizes in this 

final rule that the existing test 

procedure remains applicable for 

purposes of measuring the water use of 

a showerhead as defined in this final 

rule. It would be speculative for DOE to 

determine what products manufacturers 

may choose to produce subsequent to 

DOE’s revision of its regulatory 

definition of showerhead. If issues arise 

where the existing test procedure does 

not produce a representative 

measurement of the water use of a 

particular showerhead product, the 

manufacturer can seek a waiver from 

DOE pursuant to DOE regulations at 10 

CFR 430.27. DOE also notes the general 

requirement in EPCA for DOE to 

consider on a periodic basis whether 

test procedures for a covered product 

should be amended. See 42 U.S.C. 6293. 

As always, DOE welcomes input from 

interested parties regarding testing 

methodology during this required 

review. 

DOE also received comments arguing 

that the proposal failed to define what 

constitutes a representative average use 

cycle for showerheads. (CEC, No. 0083 

at pp. 4–5; CA IOUs, No. 0084 at p. 8, 

ASAP, No. 0086 at p. 5) CEC argued that 

without determining the representative 

average use cycle, the average use cycle 

or period of use of a multi-nozzle 

showerhead would reasonably include 

use of all the available nozzles. (CEC, 

No. 0083 at p. 5) The CA IOUs asserted 

that the proposed approach would on 

have one spray component turned on for 

testing, but that the expected average 

use of multi-spray component 

showerhead accessories is to maximize 

the number of spray components 

operating. (CA IOUs, No. 0084 at p. 8) 

Commenters also requested DOE 

provide data to demonstrate the 

representative average use of the multispray showerhead accessories. (CA 

IOUs, No. 0084 at p. 8; CEC, No. 0083 

at p. 5) Serratos stated that multiple 

showerheads or body shower heads 

should not be exempt from the existing 

testing requirements. A test that would 

only test one of the showerheads in a 

multiple head shower would not be an 

accurate representation of total water 

use. (Serratos, No. 0041) Klein stated 

that the understanding of testing 

organizations is that you test everything 

that comes out of a showerhead at one 

time, regardless of the number of heads. 

(Klein, Public Meeting Transcript at 

p. 39) DOE is not finalizing the 

proposed clarifications to the test 

procedure. Instead, DOE clarifies in this 

final rule that the existing test 

procedure remains applicable for 

measuring the water use of a 

showerhead as defined in this final rule. 

Commenters noted the impact of 

water pressure on the performance of 

showerheads. (Gassaway, No. 0009; 


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Klein, No. 0063 at p. 5; Consumer 

Research, No. 0039 at p. 3; Klein, Public 

Meeting Transcript at p. 26) 

Commenters suggested that the testing 

conditions clarify the water pressure 

used for testing as water pressure, 

which can fluctuate daily as is impacted 

by factors including the proximity to the 

water supply and the water quality, and 

impacts the flow rate from the 

showerhead. (Gassaway, No. 0009; 

Consumer Research, No. 0039 at p. 3) A 

commenter also highlighted that the use 

of a pressure compensating flow 

regulator in a majority of showerhead 

products sold in the United States such 

that the flow rate remains almost the 

same over a wide range of operating 

pressures. (Klein, No. 0063 at p. 5; 

Klein, Public Meeting Transcript at 

p. 27) 

Commenters noted that test labs 

interpret the ASME 2018 standard to 

require that a showering product, 

regardless of the number of spray heads, 

be tested for performance in each mode 

of operation. (ASAP, No. 0086 at p. 4; 

Joint Commenters, No. 0085 at p. 3; CA 

IOUs, No. 0084 at pp. 2–3) Commenters 

also highlighted that stakeholders 

appeared to agree in comments made at 

the public webinar hearing. (ASAP, No. 

0086 at p. 4; Joint Commenters, No. 

0085 at p. 3) DOE is not finalizing the 

proposed test procedure clarification. 

Instead, as noted previously, DOE 

clarifies in this final rule that the 

existing test procedure remains 

applicable for measuring the water use 

of a showerhead as defined in this final 

rule. If issues arise where the existing 

test procedure does not produce a 

representative measurement of the water 

use of a particular showerhead product, 

the manufacturer can seek a waiver from 

DOE pursuant to DOE regulations at 10 

CFR 430.27. 

E. Water Conservation 

Numerous commenters, including a 

comment with 10,184 signatures, raised 

the importance of water conservation 

and protecting the environment. 

(Environment America, No. 0069 at p.1; 

Peltzman, No. 0006; White, No. 0013; 

Manduca, No. 0019; Kelley, No. 0023; 

Huggins, No. 0077; Baker, No. 0078; 

Rivet, No. 0003; Save Water, No. 0031; 

Shojinaga, No. 0015) Some commenters 

specifically highlighted the impact the 

water efficiency requirements in EPAct 

1992 have had in reducing household 

water use. (Ruff, No. 0010; Sheegog, No. 

0014 at p. 1; Hamilton, No. 0028; Cohen, 

No. 0036; BAWSCA, No. 0050 at p. 2; 

City of Sacramento Department of 

Utilities, No. 0055 at p. 3) 

DOE also received numerous 

comments discussing how the proposal 

will waste water and energy and raise 

greenhouse gases. (Woodroffe, No. 0025; 

Anonymous, No. 0026; Cyra-Korsgaard, 

No. 0046; Goodwin, No. 0042; Gooch, 

No. 0043) One commenters stated that 

the proposal harms human health by 

wasting our most precious natural 

resource. (Anonymous, No. 0022) 

Commenters also focused on how 

conservation of treated drinking water 

and reducing the amount of domestic 

wastewater routed to sewage treatment 

plants is important. (Fisseler, No. 0032; 

Anonymous, No. 0049) Klein stated that 

assuming 200 million people shower 

daily, there is approximately 160 

million kilowatt hours per year of water 

and wastewater treatment, which could 

increase if homes are using 

showerheads with more than one 

showerhead. (Klein, Public Meeting 

Transcript at p. 40) LADWP stated that 

to go backward on water conservation 

efforts would compromise the 

achievements that have been attained 

thus far and negatively affect economic 

growth and quality of life. (LADWP, No. 

0066 at p. 2) 

Commenters also provided estimates 

of water and energy savings. (AWE, et 

al., No. 0079 at p. 4; BAWSCA, No. 0050 

at p. 4; WVWD, No. 0051 at p. 3) 

Commenters estimated that in 10 years, 

the savings for 2.5 gpm showerheads at 

the federal standard alone accumulate to 

the equivalent of supplying 1 million 

homes with water and 670,000 homes 

with energy. (AWE, et al., No. 0079 at 

p. 4; BAWSCA, No. 0050 at p. 4; 

WVWD, No. 0051 at p. 3; Davis, No. 

0064) The Texas Water Development 

Board and the City of Sacramento also 

outlined the impact that water 

conservation standards, including those 

for showerheads, have had on reducing 

municipal water demands and treatment 

chemical usage. (Texas Water 

Development Board, No. 0074 at p. 1; 

City of Sacramento Department of 

Utilities, No. 0055 at pp.2–3) 

Commenters noted that federal water 

efficiency standards assist states and 

counties in implementing their water 

conservation programs and meeting 

water use efficiency and water 

conservation goals. The proposed 

changes threaten to undo local and state 

investments in these programs, which 

has ensured the efficient use of water 

and potentially forcing water utilities to 

meet future water demands through 

alternative water supply projects. 

(Wisconsin Department of Natural 

Resources, No. 0038; Broward County, 

No. 0081) 

Numerous commenters also 

highlighted the ongoing water crises and 

droughts faced by states around the 

country and the resulting need for water 

conservation. (Anonymous, No. 0070; 

eb1mom, No. 0002; Fetting, No. 0004; 

Anonymous, No. 0022; Interested 

Citizen, No. 0005; Shepard, No. 0020; 

Shaw, No. 0059; Wargo, No. 0007; Hall, 

No. 0048; Moir, No. 0021; Lish, No. 

0057; Santa Rosa Water, No. 0037 at p. 

1, California State Water Resources 

Control Board (‘‘State Water Board’’), 

No. 0045 at p. 2; Ruff, No. 0010; Cohen, 

No. 0036; Godwin, No. 0042; Gooch, No. 

0043; CA IOUs, Public Meeting 

Transcript at p. 12) Commenters noted 

that 40 to 50 states are confronting water 

shortages, according to a United States 

Government Accountability Office 

Report. (BAWSCA, No. 0050 at p. 3; 

WVWD, No. 0051 at p. 2; AWE, et al., 

No. 0079 at p. 3; Valley Water, No. 0076 

at p. 1) 

Numerous commenters also stated 

that the proposal will increase water 

and energy consumption and lead to 

higher utility bills for consumers. (CFA, 

No. 0029; CFA, Public Meeting 

Transcript at p. 14; Hall, No. 0048; 

Green Builder Coalition, Public Meeting 

Transcript at p. 35; Public Service 

Commission of Wisconsin (‘‘PSC of 

Wisconsin’’), No. 0061 at p. 2; Santa 

Rosa Water, No. 0037 at p. 2; LADWP, 

No. 0066 at 3) The NPCC stated that the 

impacts of this proposal could include 

increased energy consumption and 

water use by the consumer, decreased 

utility by the consumer, increased 

burden and cost on the water utility, 

increased burden and cost on water 

treatment facilities, and possible 

changes to plumbing, and needs for 

larger water heater storage tanks. (NPCC, 

No. 0060 at p. 2) The IAPMO noted that 

high flow showerhead devices can also 

deplete hot water from tank type water 

heaters in a very short period of time, 

potentially causing accidents when hot 

water runs out. (IAPMO, No. 0087 at 

p. 3) Klein stated that residential water 

heaters typically hold 40–50 gallons and 

that approximately 70% of the volume 

can be used during a long event or a 

series of events before the shower 

becomes cold. (Klein, No. 0063 at p. 6) 

Commenters stated that the proposal 

will lead to increased water use. 

(Fisseler, No. 0032) Klein estimated that 

allowing the output of two headed 

showerheads to be 5.0 gpm would 

increase hot water use per shower by 5– 

20%, depending on the rate of adoption. 

For 3-headed showers, the increase 

would be 10–40% per shower 

depending on the rate of adoption. 

(Klein, No. 0063 at p. 13) CA IOUs 

relied on the analysis by Gary Klein and 

Associates, Inc. suggesting that even 

limited adoption of multi-spray 

component products will significantly 

increase national water use and hot 


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8 85 FR 8626. 

water use. For example, installing a 

three-spray component product 

increases total hot water use, 

normalized per shower, from 34 gallons 

(gal) to 61.2 gal, an increase of 80%. If 

10% of showerheads were converted to 

three-spray component products, 

national residential hot water use could 

increase by as much as 8%. (CA IOUs, 

No. 0084 at pp. 5–6) ASAP, relying on 

Klein’s analysis, stated that assuming a 

5% adoption rate for showers using 7.5 

gpm, the increase in hot water 

nationally would be 120 billion gallons 

per year with cold water usage 

increasing as well. (ASAP, No. 0086 at 

pp. 4–5; Klein, No. 0063 at p. 13) Other 

commenters suggest that the national 

water increase could be as high as 161 

billion gallons in a single year. (Valley 

Water, No. 0076; AWE, et al., No. 0079 

at p. 2; BAWSCA, No. 0050 at p. 3, 

WVWD, No. 0051 at p. 2) 

The PSC of Wisconsin stated that 

showers account for 20% of indoor 

water use in the average American 

home, and homes with showerheads 

meeting the current standard use about 

20.7 gallons per day (gpd), whereas 

homes using showerheads not meeting 

the current standard use approximately 

34.8 gpd, a nearly 70% increase. A 

residential customer with average water 

use that installs a showerhead meeting 

the revised definition could potentially 

experience a water bill increase of $36 

per year, which does not include any 

additional utility capital and operating 

costs that may result from increased 

demand on the water system if a 

significant portion of the customer base 

installs new showerheads with the 

higher flow rate. (PSC of Wisconsin, No. 

0061 at p. 1) 

Commenters also stated that the 

efficient plumbing standards and 

conservation programs lower costs for 

customers, allowing communities to 

delay or avoid developing new supplies 

and treatment capacity. (State Water 

Board, No. 0045 at p. 2; Anonymous, 

No. 0049; AWE, et al., No. 0079 at p. 3; 

PSC of Wisconsin, No. 0061 at p. 2; 

ASAP, No. 0086 at pp. 4–5; Green 

Builder Coalition, Public Meeting 

Transcript at p. 35; City of Tucson, No. 

0053 at p. 2; Texas Water Development 

Board, No. 0074 at p. 2) Commenters 

noted that increasing the consumption 

of treated drinking water through this 

proposal will increase water utility costs 

for providing new supplies—and 

therefore increase customer bills, as 

those costs for procuring needed new 

supplies are then passed on to the 

customers. (BAWSCA, No. 0050 at pp. 

3–4, WVWD, No. 0051 at p. 2) 

Commenters suggested that each 

additional 1 gpm of shower flow on a 

national basis could cost $1.14 billion. 

(Davis, No. 0064; Valley Water, No. 

0076 at p. 1; BAWSCA, No. 0050 at 

p. 4; WVWD, No. 0051 at p. 3; AWE, et 

al., No. 0079 at p. 3) 

One commenter stated that the 

inability of updated showerheads to 

allow more water during use is 

frustrating. (Goehring, No. 0062) A 

commenter sated that the free market 

has improved the water use/waste issue 

to the point where efficiency has 

succeeded. (Chick, No. 0047) DOE also 

received a comment suggesting that 

there is no need for water restrictions 

for homes on well water and septic 

systems as all water used returns to the 

grounds. (Bandy, No. 0030) Gurley 

claimed that DOE’s determination that 

this proposal is not a significant energy 

action is incorrect as it ignores the fuels 

required to condition the additional 

gallons of water. (Gurley, No. 0035) 

DOE recognizes the importance of 

water conservation and water savings 

around the country, especially in those 

communities facing droughts and water 

scarcity. As evidenced by the water 

conservation information provided by 

commenters, consumers have chosen to 

install efficient showerheads in their 

residences, resulting in significant 

reduction in water and energy 

consumption. As DOE has consistently 

stated in this rulemaking, this 

rulemaking does nothing to alter the 

current energy conservation standard for 

showerheads and is therefore not a 

significant energy action (see also 

Section IV.L). Instead, it revises and add 

definitions related to showerheads to 

provide clarity in the marketplace and 

preserve consumer utility. Further, 

while water conservation is obviously a 

purpose of EPCA, the definitional 

changes follow congressional reliance 

on the ASME standard. 

F. Additional Issues 

1. State Regulation of Showerheads 

Commenters also discussed the 

regulation of showerheads by states. 

Some commenters argued that the 

redefinition would create confusion and 

uncertainty because some states already 

have more restrictive standards than the 

federal standard of 2.5 gpm for 

showerhead, and that the intention of 

EPAct 1992 was to establish a uniform 

regulation for all states. (BAWSCA, No. 

0050 at p. 3; Valley Water, No. 0076 at 

p.1: WVWD, No. 0051 at p.2; AWE, et 

al. No. 0079 at p.3) ASAP argued that 

it is likely that state regulation of 

showerheads and body sprays will 

proliferate in response to this proposal. 

(ASAP, Public Meeting Transcript at 

p. 11) 

LADWP noted concern that DOE’s 

proposal would supersede measures 

adopted by the State of California, to 

regulate showerheads at a maximum 

flow rate of 1.8 gpm and that the 

proposal would allow high-flow 

showerheads on online marketplaces. 

(LADWP, No. 0066 at p. 2) The State 

Water Board noted that some states 

already regulate showerheads and that 

California would not be affected because 

of existing CEC regulations on 

showerheads. (State Water Board, No. 

0045 at pp. 1–2) Commenters noted that 

DOE waived preemption in 2010 and 

that the proposal would have no 

preemptive effect on states. (CEC, No. 

0083 at p. 8; ASAP, Public Meeting 

Transcript at p. 11) 

As noted in the proposed rule, this 

rulemaking would not have substantial 

direct effect on the States. 85 FR 49284, 

49295. On December 22, 2010, DOE 

issued a final rule waiving Federal 

preemption for energy conservation 

standards under 42 U.S.C. 6297(c) with 

respect to any State regulation 

concerning the water use or water 

efficiency of showerheads if such State 

regulation is: more stringent than 

Federal regulation concerning the water 

use or water efficiency for the same type 

or class of product; and applicable to 

any sale or installation of all products 

in that particular type or class. 75 FR 

80289, 80289. Accordingly, states may 

currently develop more stringent 

regulations that the federal standard and 

this proposal does not change that 

ability. As noted by some commenters, 

this rulemaking would not supersede 

state regulation of water use or water 

efficiency of showerheads that are more 

stringent than the Federal standard. 

2. Procedural Comments 

Following publication of the NOPR, 

DOE received a request from PMI to 

extend the comment period by 30 days. 

(PMI, No. 0011) On August 31, 2020, 

DOE announced the extension of the 

comment period by 30 days. 85 FR 

53707, 53707. On September 15, 2020, 

DOE received another request to extend 

the comment period to 90 to 120 days. 

(ASAP, AWE, ACEEE, CFA, NRDC, 

NEEA, No. 0040) DOE further extended 

the comment period by an additional 14 

days for a total of 62 days. 85 FR 61653, 

61653 (Sept. 30, 2020). 

DOE received comments stating that 

this proposal violated DOE’s Procedures 

for Use in New or Revised Energy 

Conservation Standards and Test 

Procedures for Consumer Products and 

Commercial/Industrial Equipment 8


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(‘‘the Process Rule’’). (ASAP, No. 0086 

at p. 5; CA IOUS, No. 0084 at pp. 9–10; 

PIRG, No. 0082 at p. 14; CEC, No. 0083 

at p. 2) The CA IOUs argued that DOE 

must follow the Process Rule guidelines 

for changing scope of coverage of water 

conservation standards. These 

commenters further stated that the 

Process Rule includes specific guidance 

regarding changing scope of coverage of 

existing standards including describing 

the maximum improvement in energy 

efficiency or maximum reduction in 

energy use that is technologically 

feasible and, if the proposed standards 

would not achieve these levels, the 

reasons for proposing different 

standards. Furthermore, these 

commenters assert that the Process Rule 

requires a public comment period for a 

change in scope of coverage of not less 

than 75 days. (CA IOUs, No. 0084 at 

p. 9) 

In this rulemaking, DOE proposed to 

revise its definition of ‘‘showerhead’’ 

and define the terms ‘‘body spray’’ and 

‘‘safety shower showerhead.’’ EPCA 

provides DOE with the discretionary 

authority to classify additional types of 

consumer products as ‘‘covered’’ within 

the meaning of EPCA. (See 42 U.S.C. 

6296(b) and 42 U.S.C. 6295(l)) This 

authority allows DOE to consider 

regulating additional products/ 

equipment that would further the goals 

of EPCA. Under the Process Rule, DOE 

is required to provide a minimum of a 

60-day comment period following 

publication of a notice of proposed 

determination. To conduct a coverage 

determination, DOE must determine 

that the classifying the product as a 

covered product is necessary or 

appropriate to carry out the purpose of 

this chapter and the average annual perhousehold energy use of products of 

such type is likely to exceed 100 

kilowatt-hours per year. (42 U.S.C. 

6292(b)(1)) This rulemaking does not 

attempt to make either of these 

determinations; rather it defines 

showerhead and related terms to avoid 

confusion in the market. Accordingly, 

this proposal is not a coverage 

determination. 10 CFR part 430, subpart 

C, appendix A. 

Commenters also argued that DOE did 

not follow the Process Rule as it relates 

to requirements for amending a test 

procedure. (CA IOUs, No. 0084 at p. 10; 

ASAP, Public Meeting Transcript at 

p. 38; PIRG, No. 0082 at p. 14; CEC, No. 

0083 at p. 2) Commenters stated that 

Process Rule requires an early 

assessment process, and DOE has not 

provided it in this rulemaking. (ASAP, 

Public Meeting Transcript at p. 38; CA 

IOUs, No. 0084 at p. 10; CEC, No. 0083 

at p. 2) PIRG argued that DOE promised 

that the comment period on a proposed 

rule would be at least 75 days. (PIRG, 

No. 0082 at p. 14) 

DOE has committed to following the 

Process Rule when amending a test 

procedure. DOE’s proposal did not 

propose to amend the current test 

procedure for showerheads in any 

substantive fashion. Rather, the 

proposed rule was an attempt to provide 

clarification that DOE expected would 

be sought by regulated entities as to how 

the existing test procedure would apply 

to showerheads with multiple outlets. 

While DOE appreciates commenters’ 

support for the recently revised Process 

Rule and seeking DOE’s strict adherence 

thereto, to avoid any ambiguity 

regarding application of the Process 

Rule DOE is not finalizing the proposed 

test procedure clarifications, including 

the provisions specifying how to apply 

the test procedure if the showerheads in 

a multi-headed showerhead use 

different amounts of water. Instead, in 

this final rule, DOE emphasizes that the 

existing test procedure remains 

applicable for purposes of measuring 

the water use of a showerhead as 

defined in this final rule. It would be 

speculative for DOE to determine what 

products manufacturers may choose to 

produce subsequent to DOE’s revision of 

its regulatory definition of showerhead. 

If, in the future, a manufacturer believes 

that the existing test procedure does not 

produce a representative measurement 

of the water use of a particular 

showerhead product, the manufacturer 

can consider seeking a waiver from DOE 

pursuant to DOE regulations at 10 CFR 

430.27. 

DOE also received also comments 

arguing that the public comment period 

should have been longer. AWE argued 

that despite separate extensions 

requested by stakeholders, the end 

result was still only a 62-day public 

comment period. (AWE, No. 0080 at p. 

1) Commenters stated that DOE 

published a NOPR without immediately 

announcing a required public hearing, 

and initially only provided 32 days for 

public comment, even though EPCA 

requires a comment period of ‘‘not less 

than 60 days.’’ (CEC, No. 0083 at p. 2; 

CA IOUs, No. 0084 at p. 10) Valley 

Water stated that the proposed 

definition did not follow past DOE 

practices of allowing at least 60 days for 

public review. (Valley Water, No. 0076 

at p. 1) ASAP further argued that DOE 

is statutorily required to provide a 60 

day comment period and, under the 

Process Rule, DOE is required to 

provide 75 days. (ASAP, Public Meeting 

Transcript at p. 7) 

Further, at the webinar, CFA 

requested an extension of 90 days to 

allow DOE to provide a cost impact 

analysis and allow the public the 

opportunity to review this data. (CFA, 

Public Meeting Transcript at p.15) 

Commenters argued that given the 

magnitude of the potential impact, the 

proposed rulemaking should allow at 

least 90 days or more for public 

comment and review. (BAWSCA, No. 

0050 at p. 3; WVWD, No. 0051 at p. 2; 

AWE et. al, No. 0079 at p. 3) 

Commenters argued that DOE is not 

following its normal rulemaking process 

noting that DOE provided little notice 

for the public meeting. (ASAP, Public 

Meeting Transcript at p. 7; CA IOUs, No. 

0084 at p. 10) Commenters stated the 

DOE did not follow typical procedure 

for pre-releasing rules. (ASAP, Public 

Meeting Transcript at p. 7; CA IOUS, 

No. 0084 at p.10) 

Similar to previous discussion, this 

proposal was not an amendment to the 

current showerhead test procedure; 

instead, it was a clarification. Even if 

this proposal were considered to be an 

amendment of the test procedure, under 

EPCA, DOE is required to provide a 

comment period of not less than 60 days 

for a new or amended test procedure. 

(42 U.S.C. 6293(a)(2)) Commenters had 

a total of 62 days to comment on the 

proposal exceeding the 60 minimum 

provided by EPCA. Finally, as 

mentioned before, DOE is not finalizing 

the proposed clarification to the 

showerhead test procedure. As stated 

previously, in this final rule, DOE 

emphasizes that the existing test 

procedure remains applicable for 

purposes of measuring the water use of 

a showerhead as defined in this final 

rule. If issues arise where the existing 

test procedure does not produce a 

representative measurement of the water 

use of a particular showerhead product, 

the manufacturer can seek a waiver from 

DOE pursuant to DOE regulations at 10 

CFR 430.27. 

3. Consumer Choice 

A commenter urged DOE to use 

latitude available under EPCA to 

minimize impacts on consumers and 

maximize choice as the energy posture 

of the country has changed since the 

enactment of EPCA. (Strauch, No. 0067) 

Consumer Research stated that the 

current rule artificially limits both the 

number and types of available multiple 

showerhead products. This restriction 

on consumer choice is undesirable and 

contrary to Congressional intent. 

(Consumer Research, No. 0039 at p. 2) 

Commenters noted that EPCA prohibits 

DOE from establishing a new or 

amended standard under the authority 

of 42 U.S.C. 6295 if DOE finds that such 

a standard is likely to result in the 


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9 10 CFR part 430, subpart C, appendix A. 

10 42 U.S.C. 6293(3), (7)(B); 10 CFR part 430, 

subpart C, app. A. 

unavailability of performance 

characteristics, features, sizes, 

capacities, and volumes substantially 

similar to those available in the U.S. at 

the time of the finding. (Consumer 

Research, No. 0039 at p. 3; CEI, No. 

0058 at p. 3–4) CEI also described 

another provision of EPCA outlining the 

process for setting a separate standard 

for a product subgroup, which instructs 

the Secretary that in making a 

determination under this paragraph 

concerning whether a performancerelated feature justifies the 

establishment of a higher or lower 

standard, the Secretary shall consider 

such factors as the utility to the 

consumer of such a feature, and such 

other factors as the Secretary deems 

appropriate. (CEI, No. 0058 at p. 4) 

While multiple showerheads were not 

prohibited, the effects of the 2013 

regulatory interpretation of the term 

‘‘showerhead’’ was to substantially 

reduce the availability of such products 

on the market, contrary to the 

provisions of EPCA or the intent of 

EPCA, which was to protect the 

consumer from losing such choices. 

(Consumer Research, No. 0039 at pp. 2– 

3; CEI, No. 0058 at p. 4) Commenters 

also argued that people should be free 

to use the showerhead and amount of 

water of their choosing. (Bell, No. 0016; 

Caspar, No. 0024) 

In response, DOE emphasizes that this 

rule complies with the congressional 

directive to preserve performance 

characteristics and features that were 

available on the market at the time DOE 

originally acted to essentially eliminate 

them. Further, this rulemaking allows 

manufacturers to continue innovating 

and provide consumers choice in the 

marketplace. 

4. Cost Impact and Technical Analysis 

DOE received comments requesting 

that DOE complete a cost impact 

analysis of the proposal. (CFA, No. 

0029; CFA, Public Meeting Transcript at 

pp. 14–15; BAWSCA, No. 0050 at p. 1; 

WVWD, No. 0051 at p.1; AWE, et al. No. 

0079 at p. 2; Davis, No. 0064; Valley 

Water, No. 0076 at p.2; Miulli, No. 0052 

at p. 3; Shojinaga, No. 0015; NPCC, No. 

0060 at p. 2;) Cyra-Korsgaard argued 

that this rulemaking is not supported by 

facts. (Cyra-Korsgaard, No. 0046) A 

commenter asked if there should be a 

discussion of the amount of water used 

by these devices. (Wargo, No. 0007) CEC 

argues that DOE has not provided any 

data or analysis to show that the 

proposed amendments would be less 

burdensome for manufacturers and that 

the additional instructions in this 

proposal will be more burdensome than 

the existing test. (CEC, No. 0083 at p. 5) 

Further, commenters stated that DOE 

has failed to provide any analysis of the 

impact of the proposed rule including 

the impacts on consumers, on water and 

wastewater utilities, on water supplies, 

on energy use, on the environment, on 

manufacturers of showerheads, and on 

the market. (ASAP, Public Meeting 

Transcript at pp. 9–10 ; ASAP, No. 0086 

at p. 4; NRDC, Public Meeting 

Transcript at p. 21; CA IOUs, No. 0084 

at p. 7; CA IOUs, Public Meeting 

Transcript at pp. 24– 25; PIRG, No. 0082 

at p. 10–12) 

Commenters argued that in order to 

meet the requirements of 42 U.S.C. 

6295(o)(1) that the Secretary may not 

prescribe any amended standard which 

increases the maximum allowable 

energy use, or, in the case of 

showerheads . . . , water use, or 

decreases the minimum required energy 

efficiency, of a covered product 

rulemakings that amend a test 

procedure typically include analysis of 

the impacts of the changes to the test 

procedure on the conservation standard, 

a process commonly referred to as a 

‘‘crosswalk.’’ (CA IOUs, No. 0084 at p. 

9; PIRG, No. 0082 at p. 13) However, the 

CA IOUs argue that the proposed rule 

contains no assessment of the impact of 

the proposed test procedure amendment 

on standards for either body sprays or 

multi-spray component products. (CA 

IOUs, No. 0084 at p. 9) PIRG also argues 

that DOE’s Process Rule 9 also requires 

DOE to assess whether a proposed 

standard will result in ‘‘significant 

savings’’ of energy of water. More 

specifically, PIRG stated that even if the 

proposal were solely a revision to test 

procedures, DOE has not undertaken 

key assessments. It is required to 

evaluate whether the change in test 

procedures will change the measured 

water usage of products.10 (PIRG, No. 

0082 at p. 13) 

This rule does not amend the current 

energy conservation standards or test 

procedures for showerheads; rather, it 

defines terms related to showerheads to 

address existing ambiguity. 

Accordingly, the requirement of 

completing analyses for energy 

conservation standards under 42 U.S.C. 

6295(o)(1) are not required. Similarly, 

DOE is not required to conduct analyses 

regarding whether a test procedure is 

reasonably designed to produce results 

measuring water use or estimated 

annual operating costs during a 

representative average use cycle because 

DOE is not amending the current test 

procedure for showerheads. (See 42 

U.S.C. 6293 (a)(3), (a)(7)(B)) 

5. Adoption of Consensus Standards 

Consumer Research stated that the 

proposed rule returns the definition of 

showerhead to the intended definition 

in EPCA, which states that the test 

procedures for testing and measuring 

the water use of showerheads shall be 

ASME/ANSI standard A112.18.1M 

–1989. (Consumer Research, No. 0039 at 

p. 1) Other commenters supported 

aligning the definitions with the ASME 

A112.18.1–2018 standard. (IAMPO, No. 

0087 at pp. 1–2; Kohler, No. 0075) 

IAPMO stated that all definitions 

pertaining to products regulated by Title 

III of EPCA should align with the 

definitions contained in products 

standards that are designated as 

American National Standards. (IAMPO, 

No. 0087 at pp. 1–2) DOE agrees that 

this rulemaking aligns the definition of 

showerhead with the definition in 

ASME as intended by Congress in 

EPCA. 

Commenters also recommends that 

DOE incorporate the definitions for 

‘‘accessory’’, ‘‘body spray’’, and ‘‘safety 

shower showerhead’’, contained in the 

current ASME A112.188.1. (IAPMO, No. 

0087 at pp. 1–2; PMI, No. 0073 at pp. 

2–4) CA IOUs stated that while they are 

supportive of reducing burdens on 

industry and confusion for consumers, 

they are concerned that the proposal 

misinterprets the 2018 ASME standard 

definition of ‘‘showerhead’’ by failing to 

consider the definition of the term 

‘‘accessory’’ in the showerhead 

definition. (CA IOUs, No. 0084 at p. 2; 

CA IOUs, Public Meeting Transcript at 

p. 34) Kohler noted that consistency 

between the industry and DOE reduces 

burden and increases efficiency in 

bringing products to market. Kohler 

expressed opposition to amending the 

test procedure for measuring the energy 

efficiency of shower heads, but 

supported test methods aligning with 

the most recent industry consensus 

standard for showerheads, ASME 

A112.18.1/CSA Bl 25.1—2018. 

Deviating from the current 

requirements, industry standards as 

well as consumer trends, can create 

disruption not only in design and 

manufacturing, but also with supply 

chain and the end user. Additionally, 

prior to increasing or decreasing 

plumbing product now rates, research 

should be conducted to understand the 

impact of new capacity on our 

infrastructure, including wastewater 

systems. (Kohler, No. 0075). 

The American Supply Association 

(‘‘ASA’’) stated that the current test 

procedure is correct and consistent with 


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the ASME standard. Adopting the 

proposed rulemaking would create 

inconsistencies regarding testing of 

multi-head showerheads and body 

sprays and cause confusion in the 

market place. ASA recommended that 

DOE codify the 2011 Enforcement 

Guidance such that body sprays fall 

under the 2.5 gpm flow rate and ASME 

references should refer to the current 

edition of the ASME standard. ASA 

stated that there is no ambiguity in 

industry when following the consensusbased industry standards including 

definitions and test procedures. The 

plumbing industry has spent a 

significant amount of time and 

investment to develop products to 

comply with the ASME standard test 

procedure and the DOE’s 2011 

Enforcement Guidance and to change 

the test procedure now will lead to 

confusion and a competitive 

disadvantage for US manufacturers who 

comply with the current requirements. 

(ASA, No. 0068 at pp. 1–2) PMI 

supports the current test procedure 

except that the reference should be 

updated to the latest edition. (PMI, No. 

0073 at p. 4) As discussed previously, 

DOE is not finalizing a proposed test 

procedure clarification at this time. 

6. Other Comments 

Commenters argued that the proposal 

does not qualify for a categorical 

exclusion under the National 

Environmental Policy Act (NEPA), 42 

U.S.C. 4321, et seq., as DOE failed to 

provide analysis of the environmental 

impacts. (BAWSCA, No. 0050 at p. 3; 

WVWD, No. 0051 at p. 2; AWE, et al., 

No. 0079 at p. 3; Davis, No. 0064; the 

Joint Commenters, No. 0085 at p. 4; 

AWE, No. 0080 at p. 2; ASAP, No. 0086 

at p. 5; CEC, No. 0083 at p. 7) CEC also 

argued that the rule changes how DOE 

tests products currently subject to the 

standard and lead to increases in water 

and energy use. As such, categorical 

exclusion A5 is not applicable for this 

rulemaking. (CEC, No. 0083 at p. 7). 

DOE maintains that this rulemaking, 

once finalized, will only revise the 

definition of ‘‘showerhead’’ and define 

the terms ‘‘body spray’’ and ‘‘safety 

shower showerhead.’’ Further, DOE is 

not finalizing the proposed changes to 

the test procedure. Finalization of the 

rule will not result in adverse 

environmental impacts and is covered 

by Categorical Exclusion A5 under 10 

CFR part 1021, subpart D. This 

categorical exclusion applies to 

rulemakings that interpret or amend an 

existing rule without changing the 

environmental effect of that rule. This 

rulemaking will not result in a change 

to the environmental effect of the 

existing showerhead standards. 

The Center for Biological Diversity 

argues that the proposed rule violates 

the Endangered Species Act. (Center for 

Biological Diversity, No. 0071 at pp. 2– 

4). This rulemaking only revises the 

definition of showerhead and defines 

‘‘body spray’’ and ‘‘safety shower 

showerhead’’. It does not set a standard 

that has impacts on endangered or 

threatened species. 

Some commenters argued that the 

proposal will impact plumbing codes. 

(Gassaway, No. 0009; Malatesta, Public 

Meeting Transcript at p. 27; Klein, 

Public Meeting Transcript at p. 30; 

IAMPO, No. 0087 at p. 2) Specifically, 

Klein stated that piping will need to get 

bigger as plumbing codes have 

limitations on the maximum velocity 

that’s allowed in a certain sized pipe. 

(Klein, Public Meeting Transcript at pg. 

30) The CA IOUs noted that new 

construction is built to meet minimum 

code requirements and these higher 

flow rate showerhead accessories come 

with a myriad of additional 

requirements. (CA IOUs, No. 0084 at p. 

7) The IAPMO states that the plumbing 

codes assume a maximum flow rate of 

2.5 gpm for showerheads to determine 

the right size for water piping. The 

installation of showerhead devices that 

flow far in excess of those values will 

cause problems in right sized plumbing 

systems resulting from excessive flow 

velocities. (IAPMO, No. 0087 at p. 2) 

Gassaway further stated that the 

regulation and proper labeling of the 

products is necessary because the 

purchaser or warranty holder may not 

be interested or invested in ensuring the 

showerhead meets engineering 

standards and the local plumbing code 

at the time of installation. (Gassaway, 

No. 0009) DOE notes that this 

rulemaking is solely a definitional 

change and does not alter the current 

standards or any applicable labeling 

requirements for showerheads. 

Commenters also discussed 

innovation regarding showerheads. A 

commenter stated that the higher 

standards promote innovation. (Rivet, 

No. 0003) Another commenter stated 

that showerhead engineering has 

developed to a point that 2.5 gpm gives 

a very good shower stream and that 

many showerheads use less than 2.5 

gpm. (Fetting, No. 0004) PMI stated that, 

since the issuance of the 2011 Guidance 

Document, manufacturers have spent 

millions of dollars to meet current DOE 

Guidelines and regulations. PMI also 

noted a shift in the showerhead 

marketplace where consumers have 

embraced water efficiency highlighting 

the 9,000 WaterSense showerhead 

models compared to 3,500 models in 

2015 and a PMI commissioned study 

finding that 45.4% of installed 

residential showerheads have a flow 

rate of 2.0 gpm or less. (PMI, No. 0073 

at pp. 4–5) Another commenter stated 

that limiting the flow of water to 2.5 

gpm total, restricted innovation in the 

showerhead industry. (Bell, No. 0016). 

DOE encourages innovation in 

showerhead engineering. 

Commenters also discussed their 

perspective on the current standard. 

Some commenters stated that there is no 

problem with the current standard, 

which has worked for decades. (Moir, 

No. 0021; Rivet, No. 0003; Fisseler, No. 

0032; Fetting, No. 0004; Gooch, No. 

0043) Another commenter stated that 

the current home appliance regulations 

prioritize efficiency and time 

consuming designs. (Battig, No. 0044) 

DOE notes that this rulemaking does not 

alter the current showerhead energy 

conservation standards, rather it revises 

the definition for ‘‘showerhead’’ and 

defines the terms ‘‘body spray’’ and 

‘‘safety shower showerhead.’’ 

Commenters question why DOE was 

pursuing this proposal, suggesting it 

was a waste of time and resources. 

(Anonymous, No. 0008; Interested 

Citizen, No. 0005; Center for Biological 

Diversity, No. 0071 at p. 1) This 

rulemaking will provide clarity to 

regulated entities and the public 

concerning terms such as 

‘‘showerhead’’, ‘‘body spray’’, and 

‘‘safety shower showerhead.’’ 

DOE also received a comment related 

to other current rulemakings. (Hare, No. 

0012) DOE also received a comment 

suggesting that DOE’s Office of 

Congressional and Intergovernmental 

Affairs urge Congress to revisit EPCA. 

(Strauch, No. 0067) DOE appreciates all 

comments on its rulemakings, but these 

comments are outside of the scope of 

this rulemaking. 

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

This regulatory action is a ‘‘significant 

regulatory action’’ under the criteria set 

out in section 3(f) of Executive Order 

12866, ‘‘Regulatory Planning and 

Review.’’ 58 FR 51735 (Oct. 4, 1993). 

Accordingly, this regulatory action was 

subject to review under the Executive 

order by the Office of Information and 

Regulatory Affairs (OIRA) in the Office 

of Management and Budget (OMB). The 

definitional change in this rule is not 

expected to have a material impact on 

costs. Similarly, the final rule is 

expected to result in minimal increase 


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in benefits, primarily through clarifying 

the showerhead definition. 

B. Review Under Executive Orders 

13771 and 13777 

On January 30, 2017, the President 

issued Executive Order (E.O.) 13771, 

‘‘Reducing Regulation and Controlling 

Regulatory Costs.’’ 82 FR 9339 (Jan. 30, 

2017). More specifically, the order 

provides that it is essential to manage 

the costs associated with the 

governmental imposition of 

requirements necessitating private 

expenditures of funds required to 

comply with Federal regulations. In 

addition, on February 24, 2017, the 

President issued Executive Order 13777, 

‘‘Enforcing the Regulatory Reform 

Agenda.’’ 82 FR 12285 (March 1, 2017). 

The order requires the head of each 

agency to designate an agency official as 

its Regulatory Reform Officer (RRO). 

Each RRO is tasked with overseeing the 

implementation of regulatory reform 

initiatives and policies to ensure that 

individual agencies effectively carry out 

regulatory reforms, consistent with 

applicable law. Further, E.O. 13777 

requires the establishment of a 

regulatory task force at each agency. The 

regulatory task force is required to make 

recommendations to the agency head 

regarding the repeal, replacement, or 

modification of existing regulations, 

consistent with applicable law. 

DOE has determined that this final 

rule is consistent with these Executive 

orders. The final rule amends the 

definition of showerhead such that each 

showerhead in a product with multiple 

showerheads would constitute a single 

showerhead for purpose of compliance 

with the 2.5 gpm standard and define 

and exclude body sprays and safety 

shower showerheads from the 

regulatory definition of showerhead. In 

this final rule, DOE is reinterpreting the 

definition of ‘‘showerhead’’ and 

adopting definitions for ‘‘body spray’’ 

and ‘‘safety shower showerhead.’’ DOE 

has designated this rulemaking as 

‘‘deregulatory’’ under E.O. 13771 

because it is an enabling regulation 

pursuant to OMB memo M–17–21. 

C. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996) requires 

preparation of an initial regulatory 

flexibility analysis (IRFA) for any rule 

that by law must be proposed for public 

comment and a final regulatory 

flexibility analysis (FRFA) for any such 

rule that an agency adopts as a final 

rule, unless the agency certifies that the 

rule, if promulgated, will not have a 

significant economic impact on a 

substantial number of small entities. A 

regulatory flexibility analysis examines 

the impact of the rule on small entities 

and considers alternative ways of 

reducing negative effects. Also, as 

required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the DOE 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s website at: http://energy.gov/ 

GC/office-general-counsel. 

DOE reviewed this rule under the 

provisions of the Regulatory Flexibility 

Act and the procedures and policies 

published on February 19, 2003. The 

head of this agency certifies that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. The factual 

basis for this determination is as 

follows: 

The Small Business Administration 

(SBA) considers a business entity to be 

a small business, if, together with its 

affiliates, it employs less than a 

threshold number of workers or earns 

less than the average annual receipts 

specified in 13 CFR part 121. The 

threshold values set forth in these 

regulation us size standards codes 

established by the North American 

Industry Classification System (NAICS) 

that are available at: https://

www.sba.gov/document/support-tablesize-standards. Plumbing equipment 

manufacturers are classified under 

NAICS 332913 ‘‘Plumbing Fixture 

Fitting and Trim Manufacturing,’’ and 

NAICS 327111 ‘‘Pottery, Ceramics, and 

Plumbing Fixture Manufacturing.’’ The 

SBA sets a threshold of 1,000 employees 

or less for an entity to be considered a 

small business within these categories. 

DOE notes that this final rule would 

amend the definition of showerhead 

such that each showerhead in a product 

with multiple showerheads would 

constitute a single showerhead for 

purposes of compliance with the 2.5 

gpm standard. The final rule would also 

specifically define and exclude body 

sprays and safety shower showerheads 

from the regulatory definition of 

showerhead. This rule does not require 

or prohibit any specific action. Rather, 

manufacturers may choose to develop 

products as a result of this definitional 

change that comply with the EPCA 2.5 

gpm standard, but no manufacturer 

would incur compliance costs as a 

result of this rule. Accordingly, this rule 

would not have a significant economic 

impact on any businesses that met the 

SBA definition of a small business. For 

these reasons, DOE certifies that this 

final rule would not have a significant 

economic impact on a substantial 

number of small entities, and the 

preparation of a FRFA is not warranted. 

D. Review Under the Paperwork 

Reduction Act of 1995 

Manufacturers of showerheads must 

certify to DOE that their products 

comply with any applicable energy 

conservation standards. To certify 

compliance, manufacturers must first 

obtain test data for their products 

according to the DOE test procedures, 

including any amendments adopted for 

those test procedures. DOE has 

established regulations for the 

certification and recordkeeping 

requirements for all covered consumer 

products and commercial equipment, 

including showerheads. (See generally 

10 CFR part 429.) The collection-ofinformation requirement for the 

certification and recordkeeping is 

subject to review and approval by OMB 

under the Paperwork Reduction Act 

(‘‘PRA’’). This requirement has been 

approved by OMB under OMB control 

number 1910–1400. Public reporting 

burden for the certification is estimated 

to average 30 hours per response, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

This rule reinterprets the definition of 

‘‘showerhead’’ but does not set energy 

conservation standards or establish 

testing requirements for showerheads, 

and thereby imposes no new 

information or record keeping 

requirements. Accordingly, Office of 

Management and Budget clearance is 

not required under the Paperwork 

Reduction Act. (44 U.S.C. 3501 et seq.) 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

E. Review Under the National 

Environmental Policy Act of 1969 

Pursuant to the National 

Environmental Policy Act (NEPA) of 

1996, DOE has analyzed this action in 

accordance with NEPA and DOE’s 

NEPA implementing regulations (10 

CFR part 1021). DOE has determined 

that this rule qualifies for categorical 


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exclusion under 10 CFR part 1021, 

subpart D, appendix A5 because it is an 

interpretive rulemaking that does not 

change the environmental effect of the 

rule and meets the requirements for 

application of a categorical exclusion. 

See 10 CFR 1021.410. Therefore, DOE 

has determined that promulgation of 

this rule is not a major Federal action 

significantly affecting the quality of the 

human environment within the meaning 

of NEPA, and does not require an 

environmental assessment or 

environmental impact statement. 

F. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (Aug. 10, 1999), imposes 

certain requirements on Federal 

agencies formulating and implementing 

policies or regulations that preempt 

State law or that have federalism 

implications. The Executive Order 

requires agencies to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications. On March 

14, 2000, DOE published a statement of 

policy describing the intergovernmental 

consultation process it will follow in the 

development of such regulations. 65 FR 

13735. EPCA governs and prescribes 

Federal preemption of State regulations 

that are the subject of DOE’s regulations 

adopted pursuant to the statute. In such 

cases, States can petition DOE for 

exemption from such preemption to the 

extent, and based on criteria, set forth in 

EPCA. (42 U.S.C. 6297(d)) Therefore, 

Executive Order 13132 requires no 

further action. 

G. Review Under Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) promote simplification 

and burden reduction. Regarding the 

review required by section 3(a), section 

3(b) of Executive Order 12988 

specifically requires that each Executive 

agency make every reasonable effort to 

ensure that when it issues a regulation, 

the regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires executive agencies to 

review regulations in light of applicable 

standards in sections 3(a) and 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and has determined that, to the 

extent permitted by law, the rule meets 

the relevant standards of Executive 

Order 12988. 

H. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. (Pub. L. 104–4, sec. 201 

(codified at 2 U.S.C. 1531)) For a 

proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a), (b)) 

The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect them. On March 18, 1997, DOE 

published a statement of policy on its 

process for intergovernmental 

consultation under UMRA. 62 FR 

12820. (This policy is also available at 

http://www.energy.gov/GC/officegeneral-counsel under ‘‘Guidance & 

Opinions’’ (Rulemaking)) DOE 

examined the rule according to UMRA 

and its statement of policy and has 

determined that the rule contains 

neither an intergovernmental mandate, 

nor a mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any year. Accordingly, no further 

assessment or analysis is required under 

UMRA. 

I. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

rule will not have any impact on the 

autonomy or integrity of the family as 

an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

J. Review Under Executive Order 12630 

Pursuant to Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 18, 1988), 

DOE has determined that this rule will 

not result in any takings that might 

require compensation under the Fifth 

Amendment to the U.S. Constitution. 

K. Review Under the Treasury and 

General Appropriations Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516 note) provides 

for Federal agencies to review most 

disseminations of information to the 

public under information quality 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (Feb. 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (Oct. 7, 2002). DOE has 

reviewed this rule under the OMB and 

DOE guidelines and has concluded that 

it is consistent with the applicable 

policies in those guidelines. 

L. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OIRA at OMB, a 

Statement of Energy Effects for any 

proposed significant energy action. A 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgates or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and is likely to have a 

significant adverse effect on the supply, 


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distribution, or use of energy; or (2) is 

designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected effects on 

energy supply, distribution, and use. 

DOE has concluded that the 

regulatory action in this document, 

reinterpreting the definition of 

‘‘showerhead’’, is not a significant 

energy action because it would not have 

a significant adverse effect on the 

supply, distribution, or use of energy, 

nor has it been designated as a 

significant energy action by the 

Administrator of OIRA. Therefore, it is 

not a significant energy action, and, 

accordingly, DOE has not prepared a 

Statement of Energy Effects for this rule. 

M. Description of Materials 

Incorporated by Reference 

In this final rule, DOE incorporates by 

reference the industry standard 

published by ISEA, titled ‘‘American 

National Standard for Emergency 

Eyewash and Shower Equipment,’’ 

ANSI/ISEA Z358.1–2014. ANSI/ISEA 

Z358.1 is an industry-accepted standard 

that established use and performance 

requirements for eyewash and 

emergency shower equipment. DOE 

incorporates by reference this industry 

consensus standard at 10 CFR 430.2, 

which defines term associated with 

energy conservation standards and test 

procedures for consumer products. 

Copies of ANSI/ISEA Z358.1–2014, 

can be obtained from the International 

Safety Equipment Association, 1901 

North Moore Street, Suite 808, 

Arlington, Virginia 22209, 

www.safetyequipment.org or American 

National Standards Institute, 25 West 43 

St., 4th Floor, New York, NY 10036. 

http://ansi.org. 

N. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule before its effective date. The 

report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Incorporation by reference, 

Intergovernmental relations, Small 

businesses. 

Signing Authority 

This document of the Department of 

Energy was signed on December 8, 2020, 

by Daniel R Simmons, Assistant 

Secretary for Energy Efficiency and 

Renewable Energy, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on December 8, 

2020. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons stated in the 

preamble, DOE amends part 430 of title 

10 of the Code of Federal Regulations as 

set forth below: 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 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. 

■ 2. Section 430.2 is amended by: 

■ a. Adding, in alphabetical order, 

definitions for ‘‘Body spray’’ and 

‘‘Safety shower showerhead’’; and 

■ b. Revising the definition of 

‘‘Showerhead’’. 

The addition and revision read as 

follows: 

§ 430.2 Definitions. 

* * * * * 

Body spray means a shower device for 

spraying water onto a bather from other 

than the overhead position. A body 

spray is not a showerhead. 

* * * * * 

Safety shower showerhead means a 

showerhead designed to meet the 

requirements of ISEA Z358.1 

(incorporated by reference, see § 430.3). 

* * * * * 

Showerhead means any showerhead 

(including a handheld showerhead) 

other than a safety showerhead. DOE 

interprets the term ‘‘showerhead’’ to 

mean an accessory to a supply fitting for 

spraying water onto a bather, typically 

from an overhead position. 

* * * * * 

■ 3. Section 430.3 is amended by: 

■ a. Redesignating paragraphs (c)(3)(iii) 

through (v) as paragraphs (c)(3)(iv) 

through (vi); 

■ b. Redesignating the second paragraph 

(c)(3)(ii) as new paragraph (c)(3)(iii); 

■ c. Redesignating paragraphs (q) 

through (u) and paragraphs (r) through 

(v); and 

■ d. Adding new paragraph (q). 

The addition reads as follows: 

§ 430.3 Materials incorporated by 

reference. 

* * * * * 

(q) International Safety Equipment 

Association, 1901 North Moore Street, 

Suite 808, Arlington, Virginia 22209, 

(703) 525–1695, 

www.safetyequipment.org. 

(1) ANSI/ISEA Z358.1–2014 (‘‘ISEA 

Z358.1’’), American National Standard 

for Emergency Eyewash and Shower 

Equipment, ANSI-approved January 8, 

2015, IBR approved for § 430.2. 

(2) [Reserved] 

* * * * * 

[FR Doc. 2020–27280 Filed 12–15–20; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[EERE–2020–BT–STD–0001] 

RIN 1904–AE86 

Energy Conservation Program: 

Establishment of New Product Classes 

for Residential Clothes Washers and 

Consumer Clothes Dryers 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The Energy Policy and 

Conservation Act, as amended 

(‘‘EPCA’’), prescribes energy 

conservation standards for various 

consumer products and certain 

commercial and industrial equipment, 

including residential clothes washers 

and consumer clothes dryers. In this 

final rule, the U.S. Department of 

Energy (‘‘DOE’’ or ‘‘the Department’’) 

establishes separate product classes for 

top-loading consumer clothes washers 

and consumer clothes dryers that offer 

cycle times for a normal cycle of less 

than 30 minutes, and for front-loading 


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