38594 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules 

(D) Region #4 Southern Region (all 

states south of the Virginia/Kentucky/ 

Missouri/Kansas state line and east of 

the Rockies): Alabama, Arkansas, 

Florida, Georgia, Louisiana, Mississippi, 

North Carolina, Oklahoma, Puerto Rico, 

South Carolina, Tennessee, and Texas. 

(ii) One producer member and 

alternate from each of the top eight 

blueberry producing states, based on the 

average of the total tons produced over 

the previous three years. Average 

tonnage will be based upon production 

and assessment figures generated by the 

Council. 

(iii) Four importers and alternates. 

(iv) Two exporters and alternates will 

be filled by foreign blueberry producers 

currently shipping blueberries into the 

United States from the two largest 

foreign blueberry production areas, 

respectively, based on a three-year 

average. 

(v) One first-handler member and 

alternate shall be filled by a United 

States based independent or cooperative 

organization which is a producer/ 

shipper of domestic blueberries. 

(vi) One public member and alternate. 

The public member and alternate public 

member may not be a blueberry 

producer, handler, importer, exporter, 

or have a financial interest in the 

production, sales, marketing or 

distribution of blueberries. 

(2) The 2023 and subsequent Council 

shall be composed of: 

(i) One producer member and 

alternate from each of the following 

regions: 

(A) Region #1 Western Region (all 

states from the Pacific east to the 

Rockies): Alaska, Arizona, California, 

Colorado, Hawaii, Idaho, Montana, 

Nevada, New Mexico, Oregon, Utah, 

Washington, and Wyoming. 

(B) Region #2 Midwest Region (all 

states east of the Rockies to the Great 

Lakes and south to the Kansas/Missouri/ 

Kentucky state line): Illinois, Indiana, 

Iowa, Kansas, Kentucky, Michigan, 

Minnesota, Missouri, Nebraska, North 

Dakota, Ohio, South Dakota, and 

Wisconsin. 

(C) Region #3 Northeast Region (all 

states east of the Great Lakes and North 

of the North Carolina/Tennessee state 

line): Connecticut, Delaware, New York, 

Maine, Maryland, Massachusetts, New 

Hampshire, New Jersey, Pennsylvania, 

Rhode Island, Virginia, Vermont, 

Washington, DC, and West Virginia. 

(D) Region #4 Southern Region (all 

states south of the Virginia/Kentucky/ 

Missouri/Kansas state line and east of 

the Rockies): Alabama, Arkansas, 

Florida, Georgia, Louisiana, Mississippi, 

North Carolina, Oklahoma, Puerto Rico, 

South Carolina, Tennessee, and Texas. 

(ii) One producer member and 

alternate from each of the top eight 

blueberry producing states, based on the 

average of the total tons produced over 

the previous three years. Average 

tonnage will be based upon production 

and assessment figures generated by the 

Council. 

(iii) Four importers and alternates. 

(iv) Four exporters and alternates will 

be filled by foreign blueberry producers 

currently shipping blueberries into the 

United States from the four largest 

foreign blueberry production areas, 

respectively, based on a three-year 

average. 

(v) One public member and alternate. 

The public member and alternate public 

member may not be a blueberry 

producer, handler, importer, exporter, 

or have a financial interest in the 

production, sales, marketing or 

distribution of blueberries. 

* * * * * 

■ 3. In § 1218.41, paragraphs (c) and (d) 

are revised to read as follows: 

§ 1218.41 Nominations and appointments. 

* * * * * 

(c) Nominations for the importer, 

exporter, and public member positions 

will be made by the Council. Two 

nominees for each member and each 

alternate position will be recommended 

to the Secretary for consideration. Other 

qualified persons interested in serving 

in these positions but not recommended 

by the Council will be designated by the 

Council as additional nominees for 

consideration by the Secretary. 

(d) Producer and importer nominees 

must be in compliance with the Order’s 

provisions regarding payment of 

assessments and filing of reports. 

Further, producers and importers must 

produce or import, respectively, 2,000 

pounds or more of highbush blueberries 

annually. 

* * * * * 

■ 4. Section 1218.42 is revised to read 

as follows: 

§ 1218.42 Term of office. 

Council members and alternates will 

serve for a term of three years and be 

able to serve a maximum of two 

consecutive terms. A Council member 

may serve as an alternate during the 

years the member is ineligible for a 

member position. When the Council is 

first established, the state 

representatives, first-handler member, 

and their respective alternates will be 

assigned initial terms of three years. 

Regional representatives, the importer 

member, the exporter member, public 

member, and their alternates will serve 

an initial term of two years. Thereafter, 

each of these positions will carry a full 

three-year term. Council nominations 

and appointments will take place in two 

out of every three years. Each term of 

office will end on December 31, with 

new terms of office beginning on 

January 1. Council members and 

alternates shall serve during the term of 

office for which they have been 

appointed and qualified, and until their 

successors are appointed. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2021–15161 Filed 7–21–21; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[EERE–2017–BT–STD–0048] 

RIN 1904–AE85 

Energy Conservation Program: 

Definition of Showerhead 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of proposed rulemaking 

and public meeting. 

SUMMARY: In this notice of proposed 

rulemaking (‘‘NOPR’’), the U.S. 

Department of Energy (‘‘DOE’’) proposes 

to revise the current definition of 

‘‘showerhead’’ adopted in the December 

16, 2020 final rule (‘‘December 2020 

Final Rule’’) by reinstating the prior 

definition of ‘‘showerhead.’’ This 

reinstatement of the prior definition is 

consistent with the purposes of the 

Energy Policy and Conservation Act 

(‘‘EPCA’’). Further, DOE has tentatively 

determined that, in reinstating the prior 

definition of ‘‘showerhead,’’ all 

showerheads within a product 

containing multiple showerheads will 

be considered part of a single 

showerhead for determining compliance 

with the 2.5 gallons per minute (‘‘gpm’’) 

standard. In addition, DOE proposes to 

remove the current definition of ‘‘body 

spray’’ adopted in the December 2020 

Final Rule. Finally, DOE does not 

propose any changes to the definition of 

‘‘safety shower showerhead’’ adopted in 

the December 2020 Final Rule. DOE 

invites comment on all aspects of this 

proposal, including data and 

information to assist in evaluating 

whether the definition of ‘‘showerhead’’ 

from the October 2013 Final Rule 

should be reinstated, and announces a 

webinar to collect comments and data 

on its proposal. 

DATES: 


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1All references to EPCA in this NOPR refer to the 

statute as amended through the Energy Act of 2020, 

Public Law 116–260 (Dec. 27, 2020). 

2For editorial reasons, upon codification in the 

U.S. Code, Part V was redesignated as Part A. 

Meeting: DOE will hold a webinar on 

Tuesday, August 31, 2021, from 1:00 

p.m. to 4:00 p.m. See section V., ‘‘Public 

Participation,’’ for webinar registration 

information, participant instructions, 

and information about the capabilities 

available to webinar participants. 

Comments: DOE will accept 

comments, data, and information 

regarding this NOPR no later than 

September 20, 2021. See section V, 

‘‘Public Participation,’’ for details. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments by email to the 

following address: 

Showerheads2021STD0016@ee.doe.gov. 

Include ‘‘Definition of Showerhead 

NOPR and docket number EERE–2021– 

BT–STD–0016 and/or RIN 1904–AE85 

in the subject line of the message. 

Submit electronic comments in 

WordPerfect, Microsoft Word, PDF, or 

ASCII file format, and avoid the use of 

special characters or any form of 

encryption. 

Although DOE has routinely accepted 

public comment submissions through a 

variety of mechanisms, including postal 

mail, or hand delivery/courier, the 

Department has found it necessary to 

make temporary modifications to the 

comment submission process in light of 

the ongoing coronavirus disease 2019 

(‘‘COVID–19’’) pandemic. DOE is 

currently accepting only electronic 

submissions at this time. If a commenter 

finds that this change poses an undue 

hardship, please contact the Appliance 

Standards Program staff at (202) 586– 

1445 to discuss the need for alternative 

arrangements. Once the Covid–19 

pandemic health emergency is resolved, 

DOE anticipates resuming all of its 

regular options for public comment 

submission, including postal mail and 

hand deliver/courier. 

No telefacsimiles (faxes) will be 

accepted. For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see section V (Public Participation) of 

this document. 

Docket: The docket for this activity, 

which includes Federal Register 

notices, comments, and other 

supporting documents/materials, is 

available for review at https://

www.regulations.gov. All documents in 

the docket are listed in the https://

www.regulations.gov index. However, 

not all documents listed in the index 

may be publicly available, such as 

information that is exempt from public 

disclosure. 

The docket web page can be found at 

https://www.regulations.gov/docket/ 

EERE-2021-BT-STD-0016. The docket 

web page contains instructions on how 

to access all documents, including 

public comments, in the docket. See 

Section V. for information on how to 

submit comments through https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Mr. John Cymbalsky, U.S. Department 

of Energy, Office of Energy Efficiency 

and Renewable Energy, Building 

Technologies Office, EE–5B, 1000 

Independence Avenue SW, Washington, 

DC 20585–0121. Email: 

ApplianceStandardsQuestions@

ee.doe.gov. 

Ms. Amelia Whiting, U.S. Department 

of Energy, Office of the General Counsel, 

GC–33, 1000 Independence Avenue SW, 

Washington, DC 20585. Telephone: 

(202) 586–2588. Email: 

Amelia.Whiting@hq.doe.gov. 

For further information on how to 

submit a comment, review other public 

comments and the docket, or participate 

in the public meeting, contact the 

Appliance and Equipment Standards 

Program staff at (202) 287–1445 or by 

email: ApplianceStandardsQuestions@

ee.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

A. Authority 

B. Background 

II. Synopsis of the Notice of Proposed 

Rulemaking 

III. Discussion 

A. Withdrawal of DOE’s Current Definition 

of ‘‘Showerhead’’ 

1. EPCA’s Definition of ‘‘Showerhead’’ Is 

Ambiguous 

2. The December 2020 Final Rule’s 

Definition of ‘‘Showerhead’’ Is Inconsistent 

With EPCA’s Purposes 

3. Congress Did Not Require Reliance on 

ASME for the Definition of ‘‘Showerhead’’ 

4. The Previous Definition of 

‘‘Showerhead’’ Did Not Effectively Ban 

Multi-Headed Showerheads 

5. The December 2020 Final Rule’s 

Definition of ‘‘Showerhead’’ Falls Within the 

NTTAA and OMB Circular A–119 Exception 

to Adherence to Voluntary Consensus 

Standards Because It Is Inconsistent With 

EPCA and Impractical 

B. Withdrawal of DOE’s Current Definition 

of ‘‘Body Spray’’ 

C. Safety Shower Showerhead 

IV. Procedural Issues and Regulatory Review 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act of 1995 

D. Review Under the National 

Environmental Policy Act of 1969 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 12630 

J. Review Under Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

V. Public Participation 

A. Participation in the Webinar 

B. Procedure for Submitting Prepared 

Statements for Distribution 

C. Conduct of the Webinar 

D. Submission of Comments 

VI. Approval of the Office of the Secretary 

I. Introduction 

The following section briefly 

discusses the statutory authority 

underlying this proposed rule, as well 

as some of the relevant historical 

background related to showerheads, the 

subject of this NOPR. 

A. Authority 

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

seq.) sets forth a variety of provisions 

designed to improve energy efficiency 

and, for certain products, water 

efficiency.1 Part B of Title III 2

establishes the ‘‘Energy Conservation 

Program for Consumer Products Other 

Than Automobiles,’’ which includes 

showerheads (with the exception of 

safety shower showerheads)—the 

subject of this proposed rulemaking. (42 

U.S.C. 6292(a)(15)) Under EPCA, the 

energy conservation program consists 

essentially of four parts: (1) Testing, (2) 

labeling, (3) Federal energy conservation 

standards, and (4) certification and 

enforcement procedures. 

B. Background 

EPCA defines a showerhead as ‘‘any 

showerhead (including a handheld 

showerhead), except a safety shower 

showerhead.’’ (42 U.S.C. 6291(31)(D)) In 

addition to defining ‘‘showerhead,’’ 

EPCA established a maximum water use 

threshold of 2.5 gpm applicable to ‘‘any 

showerhead.’’ (42 U.S.C. 6295(j)(1)). The 

definition of ‘‘showerhead’’ and the 

water conservation standard for 

showerheads were added to EPCA by 

the Energy Policy Act of 1992 (Pub. L. 

102–486 (Oct. 24, 1992)) (‘‘EPAct 

1992’’). Until 2013, DOE regulations did 

not contain a separate definition for 

‘‘showerhead.’’ (See 78 FR 62970) 

On May 19, 2010, DOE published in 

the Federal Register a Notice of 

Availability of a proposed interpretive 

rule regarding the definition of 


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3 DOE also proposed to adopt a definition for 

‘‘hand-held showerhead’’ in the 2012 NOPR. 77 FR 

31742, 31747. This NOPR does not reference that 

discussion, as DOE is not proposing any edits to the 

existing definition of ‘‘hand-held showerhead.’’ 

‘‘showerhead.’’ 75 FR 27926 (‘‘2010 

Draft Interpretive Rule’’). In this 2010 

Draft Interpretive Rule, available at 

https://www.regulations.gov/ 

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

0002, DOE discussed how there was 

uncertainty about how the EPCA 

definition of ‘‘showerhead’’ applies to 

the diversified showerhead product 

offerings. Id. at 1. To address this 

uncertainty, DOE proposed to define a 

‘‘showerhead’’ as ‘‘any plumbing fitting 

that is designed to direct water onto a 

bather.’’ Id. at 2 (footnote omitted). As 

such, DOE stated it would ‘‘find a 

showerhead to be noncompliant with 

EPCA’s maximum water use standard if 

the showerhead’s standard components, 

operating in their maximum design flow 

configuration, taken together use in 

excess of 2.5 gpm.’’ Id. at 3. 

On March 4, 2011, DOE formally 

withdrew the draft interpretive rule and 

issued showerhead enforcement 

guidance. (See https://www.energy.gov/ 

sites/prod/files/gcprod/documents/ 

Showerhead_Guidancel.pdf) (‘‘2011 

Enforcement Guidance’’) In the 2011 

Enforcement Guidance, DOE explained 

that it had received several complaints 

alleging that certain showerhead 

products exceeded EPCA’s 2.5 gpm 

standard. DOE stated that it had learned 

that some had come to believe that a 

showerhead that expels water from 

multiple nozzles constituted not a single 

showerhead, but rather multiple 

showerheads and thus could exceed the 

maximum permitted water use by a 

multiple equal to the number of nozzles 

on the showerhead. Id. at 1. Following 

a review of the record from the 2010 

Draft Interpretive Rule, DOE concluded 

that the term ‘‘any showerhead’’ has 

been and continues to be sufficiently 

clear such that no interpretive rule was 

needed. Id. at 2. Specifically, DOE 

stated that ‘‘multiple spraying 

components sold together as a single 

unit designed to spray water onto a 

single bather constitutes a single 

showerhead for the purpose of the 

maximum water use standard.’’ Id. DOE, 

in its discretion, addressed the 

misunderstanding of how to measure 

compliance with the standard by 

providing a two-year enforcement grace 

period to allow manufacturers to sell 

any remaining noncompliant products. 

Id. at 2–3. 

DOE proposed revising the test 

procedure for showerheads and other 

products and to change the regulatory 

definition of showerheads. 77 FR 31742 

(May 30, 2012) (‘‘May 2012 NOPR’’). 

DOE proposed to adopt definitions for 

four terms related to showerheads— 

‘‘fitting’’, ‘‘accessory’’, ‘‘body spray’’, 

and ‘‘showerhead’’—in order to address 

certain provisions of the revised 

American Society of Mechanical 

Engineers/American National Standards 

Institute (‘‘ASME/ANSI’’) test 

procedures that were not contemplated 

in the versions referenced by the 

existing DOE test procedure, and to 

establish greater clarity with respect to 

product coverage. 77 FR 31742, 31747.3

Specifically, DOE proposed to define 

‘‘showerhead’’ as ‘‘an accessory, or set 

of accessories, to a supply fitting 

distributed in commerce for attachment 

to a single supply fitting, for spraying 

water onto a bather, typically from an 

overhead position, including body 

sprays and hand-held showerheads, but 

excluding safety shower showerheads.’’ 

77 FR 31742, 31755. The proposed 

definition clarified that DOE considered 

a ‘‘body spray’’ to be a showerhead for 

the purposes of regulatory coverage. 77 

FR 31742, 31747. 

Responding to comments on the May 

2012 NOPR, DOE issued on April 8, 

2013 a supplemental notice of proposed 

rulemaking (‘‘SNOPR’’) in which DOE 

proposed a revised definition of 

‘‘showerhead’’ and withdrew its 

proposal to include ‘‘body sprays’’ in 

the definition of ‘‘showerhead’’ in light 

of concerns raised by commenters and 

DOE’s need to further study the issue. 

78 FR 20832, 20834–20835, 20841 

(‘‘April 2013 SNOPR’’). The SNOPR’s 

modified definition of ‘‘showerhead’’ 

removed the term ‘‘accessory’’ from the 

definition based on comments about the 

use of the term. 78 FR 20832, 20834. 

Under the proposed modified 

definition, a ‘‘showerhead’’ is ‘‘a 

component of a supply fitting, or set of 

components distributed in commerce 

for attachment to a single supply fitting, 

for spraying water onto a bather, 

typically from an overhead position, 

including hand-held showerheads, but 

excluding safety shower showerheads.’’ 

78 FR 20832, 20834. DOE also requested 

comment on whether to define the term 

‘‘safety shower showerhead’’ to address 

which products qualify for exclusion 

from coverage under EPCA and DOE 

regulations. 78 FR 20832, 20835, 20840. 

On October 23, 2013, DOE issued a 

final rule amending test procedures for 

showerheads and other products and 

adopting definitions for products 

including showerheads. 78 FR 62970 

(‘‘October 2013 Final Rule’’). In this 

final rule, DOE adopted in substance the 

modified definition of ‘‘showerhead’’ 

proposed in the April 2013 SNOPR. 78 

FR 62970, 62986. The October 2013 

Final Rule defined ‘‘showerhead’’ as ‘‘a 

component or set of components 

distributed in commerce for attachment 

to a single supply fitting, for spraying 

water onto a bather, typically from an 

overhead position, excluding safety 

shower showerheads.’’ 78 FR 62970, 

62986. DOE did not finalize the 

definition of ‘‘body spray’’ proposed in 

the May 2012 NOPR. 78 FR 62970, 

62973. DOE also declined to adopt a 

definition of ‘‘safety shower 

showerhead’’ and explained that it was 

unable to identify a definition that 

would clearly distinguish these 

products from the showerheads covered 

under EPCA. 78 FR 62970, 62974. 

On August 13, 2020, DOE proposed 

revising the definition of a 

‘‘showerhead’’ to be consistent with the 

most recent ASME standard. 85 FR 

49284 (‘‘August 2020 NOPR’’). DOE also 

proposed to adopt definitions of ‘‘body 

spray’’ and ‘‘safety shower showerhead’’ 

and to clarify whether the current test 

procedure would apply to the proposed 

definitional changes. 85 FR 49284, 

49285. In addition, DOE proposed to 

amend the test procedure for 

showerheads to address the testing of a 

single showerhead within a 

multiheaded showerhead. 85 FR 49284, 

49292. 

Following the consideration of 

comments received in response to the 

August 2020 NOPR, DOE issued the 

December 16, 2020 Final Rule, which 

amended the definition for 

‘‘showerhead’’ and adopted definitions 

for ‘‘body spray’’ and ‘‘safety shower 

showerhead.’’ 85 FR 81341. Specifically, 

the December 2020 Final Rule amended 

the meaning of ‘‘showerhead’’ in a 

manner that would incorporate the 

ASME definition for this term by 

defining it to mean ‘‘an accessory to a 

supply fitting for spraying onto a bather, 

typically from an overhead position. 85 

FR 81341, 81343, 81359. Under the 

December 2020 Final Rule’s 

interpretation, each showerhead 

included in a product with multiple 

showerheads would separately be 

required to meet the 2.5 gpm standard 

established in EPCA. 85 FR 81341, 

81342. In addition, DOE established a 

definition for ‘‘body spray’’, citing the 

need to address ambiguity about 

whether body sprays were considered 

showerheads under the October 2013 

Final Rule. 85 FR 81341, 81342, 81350. 

DOE defined the term ‘‘body spray’’ as 

‘‘a shower device for spraying water 

onto a bather from other than the 

overhead position. A body spray is not 

a showerhead.’’ 85 FR 81341, 81359. 

Lastly, DOE defined the term ‘‘safety 

shower showerhead’’ by incorporating 

by reference the definition of ‘‘safety 


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4ANSI/ISEA Z358.1–2014, ‘‘American National 

Standard for Emergency Eyewash and Shower 

Equipment.’’ 

shower showerhead’’ from the ANSI/ 

International Safety Equipment 

Association (‘‘ISEA’’) Z358.1–2014,4

such that a ‘‘safety shower showerhead’’ 

is ‘‘a showerhead designed to meet the 

requirements of ISEA Z358.1.’’ 85 FR 

81341, 81359. The December 2020 Final 

Rule indicated that leaving the term 

‘‘safety shower showerhead’’ undefined 

would cause confusion. 85 FR 81341, 

81351. DOE did not finalize the test 

procedure amendments that had been 

proposed in the August 2020 NOPR. 85 

FR 81341. 

On January 20, 2021, the President 

issued Executive Order 13990, 

‘‘Protecting Public Health and the 

Environment and Restoring Science To 

Tackle the Climate Crisis.’’ 86 FR 7037 

(Jan. 25, 2021) (‘‘E.O. 13990’’). Section 

1 of that Order lists a number of policies 

related to the protection of public health 

and the environment, including 

reducing greenhouse gas (‘‘GHG’’) 

emissions and bolstering the Nation’s 

resilience to the impacts of climate 

change. 86 FR 7037, 7041. Section 2 of 

the Order instructs all agencies to 

review ‘‘existing regulations, orders, 

guidance documents, policies, and any 

other similar agency actions 

promulgated, issued, or adopted 

between January 20, 2017, and January 

20, 2021, that are or may be inconsistent 

with, or present obstacles to, [these 

policies].’’ Id. Agencies are directed, as 

appropriate and consistent with 

applicable law, to consider suspending, 

revising, or rescinding these agency 

actions. Id. 

While E.O. 13990 triggered the 

Department’s re-evaluation, DOE is 

relying on the analysis presented below, 

based upon EPCA, to revise the 

definition adopted in the December 

2020 Final Rule. 

II. Synopsis of the Notice of Proposed 

Rulemaking 

In this proposed rule, DOE proposes 

to withdraw the December 2020 Final 

Rule’s redefinition of ‘‘showerhead,’’ 

and to reinstate the October 2013 Final 

Rule’s definition of ‘‘showerhead.’’ DOE 

therefore proposes that the term 

‘‘showerhead’’ be defined, as it was 

defined in DOE’s regulations for close to 

a decade prior to the December 2020 

Final Rule, as ‘‘a component or set of 

components distributed in commerce 

for attachment to a single supply fitting, 

for spraying water onto a bather, 

typically from an overhead position, 

excluding safety shower showerheads.’’ 

78 FR 62970, 62986. As such, DOE also 

proposes to withdraw December 2020 

Final Rule’s interpretation that each 

showerhead included in a product with 

multiple showerheads would separately 

be required to meet the 2.5 gpm 

standard established in EPCA. Whereas 

in the December 2020 Final Rule DOE 

changed the definition of ‘‘showerhead’’ 

because the Department weighed 

consistency with ASME more heavily 

than water conservation, DOE has 

reconsidered this balance and has come 

to a different policy conclusion that 

water conservation is a more important 

EPCA purpose than consistency with 

ASME (with which DOE has no 

statutory obligation to align its 

definition). DOE believes that the steps 

it is proposing in this proposed rule 

better effectuate EPCA’s water 

conservation purposes. 

DOE also proposes to withdraw the 

definition of ‘‘body spray’’ adopted in 

the December 2020 Final Rule. DOE 

believes that the current definition of 

‘‘body spray’’ is inconsistent with the 

express purpose of EPCA to conserve 

water by improving the water efficiency 

of certain plumbing products and 

appliances as the definition may lead to 

increased water use and does not best 

address the relationship between body 

sprays and showerheads. This is 

because the only difference between a 

‘‘body spray’’ and a ‘‘showerhead’’ is the 

installation location, as shown by the 

similar treatment of the two products in 

the marketplace. DOE does not propose 

any changes to the definition of ‘‘safety 

shower showerhead’’ as leaving the term 

undefined may cause confusion about 

what products are subject to the energy 

conservation standards. 

III. Discussion 

A. Withdrawal of DOE’s Current 

Definition of ‘‘Showerhead’’ 

DOE has undertaken a review of the 

December 2020 Final Rule. DOE 

proposes to withdraw the December 

2020 Final Rule’s definition of 

‘‘showerhead’’ and reinstate the 

definition of ‘‘showerhead’’ from the 

October 2013 Final Rule. DOE has 

tentatively determined that EPCA’s 

definition of showerhead is ambiguous 

and that the December 2020 Final Rule’s 

definition of ‘‘showerhead’’ is not 

consistent with EPCA’s purposes: To 

conserve water by improving water 

efficiency of certain plumbing products 

and appliances and to improve energy 

efficiency of major appliances and 

consumer products. See 42 U.S.C. 6201. 

DOE has also tentatively determined, 

upon review and in light of present facts 

and circumstances, that Congressional 

intent does not require DOE to adopt the 

ASME definition for ‘‘showerheads;’’ 

that the October 2013 Final Rule did not 

effectively ban multi-headed 

showerheads from the market; and that 

the December 2020 Final Rule’s 

definition of ‘‘showerhead’’ is 

inconsistent with EPCA’s purposes and 

falls within the National Technology 

Transfer and Advancement Act of 1995 

(‘‘NTTAA’’) and OMB Circular A–119 

exception to the use of voluntary 

consensus standards. As such, DOE 

proposes to reinstate the definition of 

‘‘showerhead’’ from the October 2013 

Final Rule, such that the term would 

again be defined as ‘‘a component or set 

of components distributed in commerce 

for attachment to a single supply fitting, 

for spraying water onto a bather, 

typically from an overhead position, 

excluding safety shower showerheads.’’ 

See 78 FR 62970, 62986. 

1. EPCA’s Definition of ‘‘Showerhead’’ 

Is Ambiguous 

EPCA defines the term ‘‘showerhead’’ 

as ‘‘any showerhead (including a 

handheld showerhead), except a safety 

shower showerhead.’’ (42 U.S.C. 

6291(31)(D)). Congress adopted this 

definition of showerhead in 1992 as part 

of the Energy Policy Act. Thereafter, 

however, between 1992 and 2010, the 

designs of showerhead diversified into a 

myriad of products including waterfalls, 

shower towers, rainheads, and shower 

systems. (See https://

www.regulations.gov/ 

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

0002) In the 2010 Draft Interpretive 

Rule, DOE noted that it had become 

aware of uncertainty in how the EPCA 

definition and standard applies to such 

products. Id. As such, DOE issued the 

draft interpretive rule to ‘‘make clear to 

all stakeholders’’ DOE’s interpretation of 

the definition of ‘‘showerhead’’ with 

respect to the 2.5 gpm maximum water 

use requirement. Id. at 1–2. 

Similarly, in the 2011 Enforcement 

Guidance, DOE explained that it had 

learned that some had come to believe 

that a showerhead that expels water 

from multiple nozzles constituted not a 

single showerhead, but rather multiple 

showerheads and thus could exceed the 

maximum permitted water use. (See 

https://www.energy.gov/sites/prod/files/ 

gcprod/documents/Showerhead_

Guidancel.pdf) DOE further 

acknowledged that absence of 

enforcement could have contributed to 

that misunderstanding. Id. at 2. While 

DOE acknowledged such confusion, 

DOE withdrew the 2010 Draft 

Interpretive Rule in the enforcement 

guidance document based on its 

conclusion that the term ‘‘any 

showerhead’’ has been, and continues to 


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5The parenthetical reference provides a reference 

for information located in the docket of DOE’s 

rulemaking to amend the definition of showerhead. 

(Docket No. EERE–2020–BT–TP–0002, which is 

maintained at https://www.regulations.gov/ 

#!docketDetail;D=EERE-2020-BT-TP-0002). The 

references are arranged as follows: (Commenter, 

comment docket ID number, page of that 

document). 

6 DOE received a joint comment from the 

Appliance Standards Awareness Project, Alliance 

for Water Efficiency, consumer Federation of 

America, the National Consumer Law Center, the 

Natural Resources Defense Council, the Northwest 

Energy Efficiency Alliance, and the American 

Council for an Energy-Efficiency Economy, 

collectively referred to as ASAP. 

be, sufficiently clear such that no 

interpretive rule is needed. Id. In the 

enforcement guidance, DOE stated that 

multiple spraying components sold 

together as a single unit designed to 

spray water onto a single bather 

constitute a single showerhead for 

purposes of the maximum water use 

standard. Id. DOE provided 

manufacturers a two-year grace period 

to sell any remaining noncompliant 

products and to adjust product designs 

for compliance with EPCA and DOE 

regulations. Id. at 3. 

The ambiguity of the word 

‘‘showerhead’’ in EPCA is underscored 

by its history. DOE’s statements in both 

the 2010 Draft Interpretive Rule and the 

2011 Enforcement Guidance illustrate 

that confusion existed among 

manufacturers about what constituted a 

showerhead under the statutory 

definition. Since the passing of EPAct 

1992 and the establishment of a 

regulatory definition for ‘‘showerhead’’, 

the market diversified into a myriad of 

products. The diversification of the 

marketplace as it pertains to 

‘‘showerheads’’, and the confusion 

about what products are considered a 

showerhead by manufacturers, illustrate 

that the statutory definition of 

‘‘showerhead’’ is ambiguous. DOE 

believes that any ambiguity in the 

statutory meaning should be explicated 

by a regulatory definition that is 

consistent with EPCA’s purposes. 

2. The December 2020 Final Rule’s 

Definition of Showerhead Is 

Inconsistent With EPCA’s Purposes 

EPCA sets forth seven purposes that 

provide a basis for DOE’s actions 

regarding the Energy Conservation 

Program. One of the most relevant of 

these purposes is ‘‘to conserve energy 

supplies through energy conservation 

programs, and, where necessary, the 

regulation of certain energy uses.’’ (42 

U.S.C. 6201(4); Pub. L. 94–163 ((Dec. 22, 

1975)) The EPAct 1992 amended EPCA 

by adding plumbing products, including 

showerheads, to the products covered 

by the Energy Conservation Program. 

(Pub. L. 102–486 (Oct. 24, 1992)) The 

EPAct 1992 also added another purpose 

under EPCA to address plumbing 

products: ‘‘to conserve water by 

improving the water efficiency of 

certain plumbing products and 

appliances.’’ (42 U.S.C. 6201(8)) 

DOE has considered the relationship 

between the definition of 

‘‘showerhead’’, the 2.5 gpm EPCA 

standard, and EPCA’s purposes to 

conserve water and energy in both the 

2010 Draft Interpretive Rule and 2011 

Enforcement Guidance. DOE believes 

that the December 2020 Final Rule is in 

conflict with EPCA’s water-conservation 

and energy-conservation purposes. That 

rule allows multiple nozzles each to be 

subject to a separate standard, and 

thereby allows water flow at a multiple 

of that standard and the related increase 

of energy for water heating. 

This belief is consistent with DOE 

statements before the December 2020 

Final Rule. Specifically, in the 2010 

Draft Interpretive Rule, DOE explained 

that all components that are supplied 

together and function from one inlet 

form a single showerhead for purposes 

of the maximum water use standards 

under EPCA. (See https://

www.regulations.gov/ 

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

0002) DOE stated that neither the 

statutory definition nor the test 

procedures for showerheads treat a 

showerhead differently based upon the 

shape, size, placement, or number of 

sprays or openings it may have. Id. at 2. 

Further, DOE highlighted that the test 

procedure contemplates that the 

regulated showerhead fitting may have 

additional ‘‘accessory’’ water outlets 

and specifies that all standard 

accessories must be attached and set at 

maximum flow during testing. Id. DOE 

clarified that a showerhead is 

determined to be noncompliant if the 

standard components, operating in their 

maximum design flow configuration, 

taken together use in excess of 2.5 gpm. 

Id. at 3. DOE stated that this approach 

furthers the goal of EPCA to ‘‘conserve 

water by improving the water 

efficiency’’ of showerheads. Id. In DOE’s 

2011 Enforcement Guidance, DOE 

articulated a modified interpretation of 

the statutory definition of 

‘‘showerhead’’ from the definition 

proposed in the 2010 Draft Interpretive 

Rule. DOE stated that multi spraying 

units sold together as a single unit 

designed to spray water onto one bather 

are considered a single showerhead. 

(See https://www.energy.gov/sites/prod/ 

files/gcprod/documents/Showerhead_

Guidancel.pdf) DOE explained that all 

sprays and nozzles should be turned 

onto the maximum flow setting to 

determine water use. Id. DOE found this 

approach is consistent with the industry 

standard, the statutory language, and 

Congressional intent to establish a 

maximum water use requirement. Id. 

These previous statements by DOE 

illustrate that a definition of 

‘‘showerhead’’ that includes a multiheaded showerhead is consistent with 

EPCA’s purpose of water conservation. 

The 2020 rulemaking did not fully 

account for how its definition of 

‘‘showerhead’’ would comport with the 

purposes of EPCA, but it did 

acknowledge that water conservation is 

among EPCA’s purposes. 85 FR 81341, 

81353. In this proposed rulemaking, 

DOE reviews the December 2020 Final 

Rule’s definition of ‘‘showerhead’’ as it 

relates to EPCA’s express purposes of 

water and energy conservation. The 

purposes of EPCA, as amended, include 

‘‘to conserve water by improving the 

water efficiency of certain plumbing 

products and appliances’’ and ‘‘to 

provide for improved energy efficiency 

of motor vehicles, major appliances, and 

certain other consumer products.’’ (42 

U.S.C. 6201) 

DOE received comments in response 

to the August 2020 NOPR, many of 

which explained that the then-proposed 

‘‘showerhead’’ definition was contrary 

to the purposes of the Energy 

Conservation Program and Federal laws, 

which are to reduce water waste and 

improve energy efficiency. (Davis, No. 

0064 at p.1; Public Interest Research 

Group (‘‘PIRG’’), No. 0082 at p.3; 

Northwest Power and Conservation 

Council (‘‘NPCC’’), No. 0060 at p.2) 5 For 

example, PIRG explained that the thenproposed new interpretation was 

contrary to the 2.5 gpm standard and the 

goals of EPCA as it would permit higher 

water usage. PIRG further explained that 

the then-proposed interpretation would 

eviscerate the 2.5 gpm standard, because 

the water flow available in a shower 

would be simply a matter of choice, 

between manufacturer and consumer, 

about how many nozzles to use. PIRG 

stated that Congress could not have 

intended this conservation standard to 

be so illusory. (PIRG, No. 0082 at p.3) 

The NPCC stated that the proposal, if 

finalized, would undermine the DOE 

standards program by establishing 

revised definitions and an agency 

interpretation that circumvent the 

associated standard. The NPCC 

explained also that this proposal would 

undercut DOE’s appliance program and 

diminish cost-effective energy savings 

and benefits contrary to the purpose of 

EPCA. (NPCC, No. 0060 at p.2) 

Similarly, ASAP 6 stated that the 

proposal allowed for unlimited flow 

because there was no limit on the 


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7The Environment America comment received 

10,184 signatories. 

8The 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. 

number of spray units a single product 

might have and this interpretation 

undermined the very purpose of the 

statute. (ASAP, No. 0086 at p.2) Hare 

also suggested that the aggregate flow 

rate would be too high to achieve water 

savings, thereby subverting the 

purported reason for the existence of the 

regulation. (Hare, No. 0012) 

Other comments that DOE received on 

the August 2020 NOPR similarly discuss 

the impacts of the proposal on water 

and energy consumption. Numerous 

commenters stated that the proposal 

would increase water and energy 

consumption. (California Investor 

Owned Utilities (‘‘CA IOUs’’), Public 

Meeting Transcript at p. 13; Consumer 

Federation of America (‘‘CFA’’), No. 

0029; CFA, Public Meeting Transcript at 

p.14; Environment America,7 No. 0069 

at p.1) Commenters specified that the 

proposal would waste water and energy 

because more energy would be needed 

to heat and pump the additional water. 

(Godwin, No. 0042; Hall, No. 0048; 

Shaw, No. 0059; Gurley, No. 35) The 

Green Builder Coalition highlighted that 

the increased water flow and usage 

would increase energy usage from the 

municipal side used to pump and treat 

the increased water demands. (Green 

Builder Coalition, Public Meeting 

Transcript at p.35) 

Commenters also addressed the 

current water shortages the country is 

facing. Numerous stakeholders 

commented that 40 of the 50 states are 

already confronting water shortages and 

that the proposal would increase 

consumption of drinking water, causing 

a severe impact on water supplies across 

the country. (Walnut Valley Water 

District (‘‘WVWD’’), No. 0051 at p.2; 

Alliance for Water Efficiency, et al.8

(‘‘AWE, et al.’’), No. 0079 at p.3; Santa 

Clara Valley Water District (‘‘Valley 

Water’’), No. 0076 at p.1; Bay Area 

Water Supply & Conservation Agency 

(‘‘BAWSCA’’, No. 0050 at p.3) Lish 

explained that the Southwest was 

suffering a drought and that event after 

event illustrated the importance of 

reducing energy consumption that 

produces GHG emissions. (Lish, No. 

0057) Cohen also commented that the 

proposed changes would allow wasteful 

showers in a wide variety of 

configurations and increase 

consumption of drinking water at a time 

that wide regions of the country are 

already facing severe shortages. (Cohen, 

No. 0036) 

Regarding water consumption, the CA 

IOUs projected that a single-shower 

household shifting to a three-spray 

component product could increase the 

overall hot water use for that household 

by as much as 80%. (CA IOUs, No. 0084 

at p.6) Further, the CA IOUs estimated 

that if 10% of current showerheads were 

converted to three-spray component 

products, national residential hot water 

use, the second largest component of 

residential site energy consumption, 

could increase by as much as eight 

percent. (CA IOUs, No. 0084 at p. 6) 

Similarly, Gary Klein Associates 

(‘‘GKA’’) stated that switching to a 2- 

headed showering device increases hot 

water use by 40%, while switching to a 

3-headed device increases it by 80%. 

(GKA, No. 0063 at p.11) Tucson Water 

also noted that changing the definition 

of ‘‘showerhead’’ effectively allowed 

multiple showerheads in the same stall, 

disregarding the existing federal 

standard of 2.5 gpm per shower and 

potentially doubling, or more, the 

amount of water used per shower. 

(Tuscan Water, No. 0053 at p. 1) And 

numerous commenters estimated that 

increasing the current federal legal 

standard of 2.5 gpm for the entire 

shower could result in a national water 

increase of 161 billion gallons in a 

single year. (Valley Water, No. 0076 at 

p. 1; WVWD, No. 0051 at p.2; BAWSCA, 

No. 0050 at p.3; AWE, et al., No. 0079 

at p.2)) 

Texas Water Development Board 

(‘‘TWDB’’) stated that a change in the 

definition of ‘‘showerhead’’ would most 

likely lead to a reduction in the 

anticipated water savings and an 

increase in the state’s future municipal 

water demands. If these water savings 

are not achieved through conservation, 

future water demands will likely require 

additional, and more expensive, water 

management strategies and projects. 

(TWDB, No. 0074 at p.2) 

Commenters also discussed the 

impact of increased water consumption 

on energy use. Commenters estimated 

that for each 1 gpm increase in 

showerhead flow rate, national annual 

domestic water use would increase by 

55 billion gallons and national annual 

energy use for that added hot water 

would increase by 25,000 billion Btu. 

(WVWD, No. 0051 at p.3; BAWSCA, No. 

0050 at p.4; AWE, et al., No. 0079 at p.3) 

This use would, in turn, increase annual 

water and energy bills for American 

consumers by an estimated $1.14 

billion. (WVWD, No. 0051 at p.3; 

BAWSCA, No. 0050 at p.4; AWE, et al., 

No. 0079 at p.3; Davis, No. 0064 at p.1) 

The Public Service Commission of 

Wisconsin (‘‘PSC of Wisconsin’’) stated 

that showerheads affect a customer’s 

energy use as showers represent the 

number one use of hot water inside the 

home and a reduction in shower water 

efficiency would require customers to 

use additional energy to heat water, 

increasing customers’ energy use and 

resulting energy bills. (PSC of 

Wisconsin, No. 0061 at p.2) 

NPCC estimated that the Northwest 

currently has about 10 million 

showerheads and increasing the water 

use per shower by a factor of two or 

more would have a significant impact 

on the consumption of electricity, 

natural gas, and water, which would 

result in increased power supply needs. 

(NPCC, No. 0060 at p.2) NPCC stated the 

impacts of the proposed rule include 

increased electricity or natural gas 

consumption by the consumer, 

increased water use by the consumer, 

decreased utility by the consumer, 

increased burden and cost on the water 

utility, increased burden and cost on 

wastewater treatment facilities, possible 

changes to plumbing, and needs for 

larger water heater storage tanks. (NPCC, 

No. 0060 at p.2) Similarly, the Sierra 

Club and Earthjustice commented that 

the proposal would result in greater 

consumption of hot and cold water, 

increasing fossil fuel and electricity 

consumption, and the accompanying 

emissions of air pollutants that harm the 

health and welfare of its members. 

(Sierra Club and Earthjustice, No. 0085 

at p.1) 

The Los Angeles Department of Water 

and Power (‘‘LADWP’’) discussed how 

the proposed rulemaking would allow 

for devices that increase consumption of 

water, resulting in a greater need for 

energy, which in turn would generate 

more GHGs that would not be produced 

with fixtures that use less water. 

LADWP stated this increase would be 

due to the embedded energy and GHG 

impacts in treating, pumping, and 

moving water hundreds of miles across 

the state for delivery to LADWP and 

other suppliers. (LADWP, No. 0066 at 

pp.2–3) Shaw also noted that an 

increase in the amount of energy used 

to heat water would increase the 

amount of carbon emitted into the 

atmosphere, exacerbating global 

warming. (Shaw, No. 0059) The City of 

Santa Rosa Water Department (‘‘Santa 

Rosa Water’’) commented that loosening 

low flow standards would likely 

increase energy consumption and 

associated GHGs, which are a 

contributing factor to climate induced 

drought. (Santa Rosa Water, No. 0037 at 

p.2) Additional stakeholders 

commented that adopting the thenproposed ‘‘showerhead’’ definition 


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would increase energy use from water 

wasting showerheads and increase GHG 

emissions because of the need to heat 

and pump excess water, increasing 

energy bills. (Hall, No. 0048; Gooch, No. 

0043; Shaw, No. 0059) 

DOE has fully considered these 

comments in this rulemaking as they 

relate to December 2020 Final Rule’s 

definition of ‘‘showerhead.’’ During the 

2020 rulemaking, DOE discussed these 

comments and noted the importance of 

water conservation, but DOE focused 

solely on the Congressional reliance on 

ASME for the definitional changes. See 

85 FR 81341, 81353. DOE believes that 

EPCA’s purposes should also be 

considered when amending the 

definition of a covered product. DOE 

agrees with the commenters that the 

December 2020 Final Rule’s 

‘‘showerhead’’ definition and 

interpretation would likely increase 

water usage, increase associated energy 

use, and increase GHG emissions. These 

increases would be contrary to EPCA’s 

purposes of reducing energy and water 

consumption. As such, DOE has 

tentatively determined that the 

December 2020 Final Rule’s definition 

should be withdrawn. 

DOE’s full consideration of comments 

received in the response to the August 

2020 NOPR and of the purposes of 

EPCA has also informed this proposed 

approach of restoring the definition of 

‘‘showerhead’’ from the October 2013 

Final Rule. In response to the August 

2020 NOPR, PIRG noted that DOE’s past 

rules on this topic (in 2011 and in 2013) 

had clearly taken account of the primary 

EPCA goal of decreased water use. 

(PIRG, No. 0082 at p.3) ASAP 

commented that the definition from the 

2013 Final Rule carried out the 

conservation purpose of EPAct 1992. 

(ASAP, No. 0086 at p.2) 

DOE also received comments on the 

impacts of the then-existing definition 

of ‘‘showerhead’’ and EPAct 1992 

generally. Ruff explained that the water 

efficiency mandates in EPAct 1992 have 

helped drive down and conserve 

household water use. (Ruff, No. 0010) 

Hamilton further commented that the 

then-current rules save consumers and 

water treatment jurisdictions money. 

(Hamilton, No. 0028) Cohen estimated 

that the then-current rule has saved 

billions of dollars in water and energy 

bills. (Cohen, No. 0036) The City of 

Sacramento Department of Utilities 

(‘‘City of Sacramento’’) stated that, in 

California, as global temperatures rise, 

reduced winter snowpack will 

negatively impact local water 

availability, and drought frequency may 

increase. Efficient water use is the most 

cost-effective way to achieve long-term 

conservation goals and ensure reliable 

water supply for future generations. 

(City of Sacramento, No. 0055 at p.3) 

Commenters also estimated the water 

use reductions of cities and states due 

to water efficiency measures. BAWSCA 

estimated that since the 1992 federal 

adoption of the 2.5 gpm showerhead 

standard, its service area has saved more 

than 33.1 billion gallons of water with 

2.2 billion gallons of water savings in 

2020 alone as a result of savings from 

installing efficient 2.5gpm showerheads. 

BAWSCA also explained that there are 

also additional benefits accumulating 

from the 2.2 billion gallons in avoided 

wastewater treatment and hot water 

savings and cost. (BAWSCA, No. 0050 at 

p.2) The TWDB explained that the 

replacement of older showerheads with 

the current 2.5 gpm showerheads, under 

the October 2013 Final Rule definition 

of ‘‘showerhead’’, was expected to save 

a cumulative 40,000 acre-feet of water in 

2020 and 176,000 acre-feet in 2020 and 

reduce future municipal water demands 

of the state by approximately 6–10%. 

(TWDB, No. 0074 at p.1) And the City 

of Sacramento provided estimated 

savings from the 2.5 gpm flow rate and 

noted that in 2020 alone the City had 

saved 860 million gallons of water. (City 

of Sacramento, No. 0055 at p.2) 

Numerous commenters also cited 

AWE estimates that 2.5 gpm 

showerheads provide 11 billion gallons 

per year in water savings and 5 trillion 

Btu per year in energy savings. 

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

0051 at p.3; AWE, et al., No. 0079 at p.4) 

In ten years, the savings for 2.5 gpm 

showerheads at the federal standard 

alone accumulate to the equivalent of 

supplying 1 million homes with water 

and 670,000 homes with energy. 

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

0051 at p.3; AWE, et al., No. 0079 at p.4; 

Davis, No. 064 at p.1) 

DOE agrees with the commenters that 

the definition of ‘‘showerhead’’ from the 

October 2013 Final Rule and the 

associated interpretation resulted in 

significant water and energy savings, 

protected the environment, and reduced 

GHG emissions. As discussed above, 

while DOE focused on ASME in the 

2020 rulemaking, DOE believes that the 

EPCA’s purposes should also be 

considered when amending the 

definition of a covered product. As 

such, the definition of ‘‘showerhead’’ 

from the October 2013 Final Rule is 

consistent with the purposes of EPCA 

for water and energy conservation, 

whereas the December 2020 Final Rule’s 

definition is not. Further, the definition 

of ‘‘showerhead’’ from the October 2013 

Final Rule also corresponds with the 

general concept of the term 

‘‘showerhead’’ in the 2010 Draft 

Interpretive Rule and 2011 Enforcement 

Guidance. While the specific language 

used by DOE has changed between the 

three documents, each document’s 

definition considered all components 

attached to a single supply fitting/inlet 

to be a single showerhead. As explained 

previously, the October 2013 Final Rule 

understanding of showerheads better 

implements the purposes of EPCA than 

the December 2020 Final Rule’s 

definition. Accordingly, DOE has 

tentatively determined that the 

proposed definition of ‘‘showerhead’’ 

better effectuates the purposes of EPCA. 

Therefore, DOE proposes that, in 

withdrawing the definition of 

‘‘showerhead’’ from the December 2020 

Final Rule, the definition of 

‘‘showerhead’’ from the October 2013 

Final Rule be reinstated. 

3. Congress Did Not Require Reliance on 

ASME for the Definition of 

‘‘Showerhead’’ 

DOE thus tentatively departs from the 

view expressed in the December 2020 

Final Rule that it would be more 

consistent with Congressional intent to 

rely on ASME for the definition of 

‘‘showerhead.’’ 85 FR 81341, 81342. As 

discussed, that term is ambiguous, and 

DOE believes that the definition of 

‘‘showerhead’’ from the October 2013 

Final Rule better comports with the 

EPCA’s purposes. 

DOE does not believe Congress 

required reliance of the ASME 

definition. Congress adopted the 

definition of ‘‘showerhead’’ in EPAct 

1992, along with the provisions related 

to definitions, standards, test 

procedures, and labeling requirements 

for plumbing products. (Pub. L. 102– 

486; Oct. 24, 1992 Sec. 123) EPAct 1992 

and EPCA define the term 

‘‘showerhead’’ as ‘‘any showerhead 

(including a handheld showerhead), 

except a safety shower showerhead.’’ 

(42 U.S.C. 6291(31)(D)) In the same 

paragraph, Congress provided explicit 

direction to define the terms ‘‘water 

closet’’ and ‘‘urinal’’ in accordance with 

ASME A112.19.2M, but did not do so 

with respect to ‘‘showerhead.’’ (Cf. Sec. 

123(b)(5) of Pub. L. 102–486) Instead, 

for showerheads, Congress adopted the 

ASME standards only for the water 

conservation standard, test procedures, 

and labeling requirements. For those, 

Congress adopted ASME A112.18.1M– 

1989 as the applicable standard and 

required DOE to adopt the revised 

version of the standard, unless it 

conflicted with the other requirements 

of EPCA. (42 U.S.C. 6295(j)(1) and (3); 

42 U.S.C. 6293(b)(7); 42 U.S.C. 

6294(a)(2)(E)) These Congressional 


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9 (See 42 U.S.C. 6295(j)(1) and (3); 42 U.S.C. 

6295(b)(7); 42 U.S.C. 6294(a)(2)(E)). 

10The ASME references in the energy 

conservation standard discuss design requirements 

in relation to EPAct 1992’s 2.5 gpm maximum flow 

rate; the references do not purport to define 

‘‘showerhead.’’ (42 U.S.C. 6295(j)) Although section 

6294(a)(2)(e) requires the Federal Trade 

Commission to prescribe labeling rules for 

showerheads consistent with ASME A112.18.1M– 

1989, nothing in that section shines any light on the 

definition of ‘‘showerhead.’’ (PIRG, No. 0082 at p.7) 

11 DOE has previously determined that 

refrigerator-freezer configurations, oven door 

windows, and top loading clothes washers 

configurations are all features. 85 FR 81341, 81347 

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

actions illustrate Congress’ intent in 

regard to how DOE should define the 

term ‘‘showerhead.’’ Notably, Congress 

did not explicitly require that 

‘‘showerhead’’ be defined in conformity 

with the definition in the applicable 

ASME standard (assuming the 

definition of showerhead was included 

in the 1989 standard) as it did with 

other aspects of the Energy Conservation 

Program for plumbing products. 

In the December 2020 Final Rule, 

DOE determined that interpreting the 

term ‘‘showerhead’’ consistent with the 

ASME definition would be more 

appropriate than DOE’s previous 

interpretation of ‘‘showerhead.’’ 85 FR 

81341, 81342. DOE noted that EPCA 

relies on ASME standards for the test 

method, the standards, and the marking 

and labeling requirements for 

showerheads.9 Because these other 

provisions relate to the ASME standard, 

the December 2020 Final Rule stated 

that Congress clearly intended that the 

‘‘showerhead’’ definition would also 

align with the ASME standard. 85 FR 

81341, 81345. DOE also highlighted that 

the definitions immediately preceding 

showerheads, in the definition section, 

included definitions of ASME and 

ANSI. Id. (citing 42 U.S.C. 6291(31)(B)– 

(C)) DOE explained that, while EPCA 

does not include an explicit direction 

regarding the definition of showerhead, 

DOE has found that reliance on the 

ASME standard for this final rule is 

consistent with Congress’s reliance on 

ASME. In particular, DOE stated, if the 

definition developed by DOE deviated 

significantly from the ASME definition, 

it would create confusion in how to 

apply the standards and test methods 

that Congress directed be consistent 

with ASME. 85 FR 81341, 81346. 

DOE has fully considered the 

comments that it received in response to 

the August 2020 NOPR, regarding the 

NOPR’s suggestion that Congress 

intended that DOE’s actions with regard 

to showerheads be consistent with 

ASME. PIRG stated that DOE’s 

reasoning for following the ASME 

definition of ‘‘showerhead’’ is not 

consistent with EPCA or with EPAct 

1992. Specifically, PIRG noted that 

Congress did not refer the 

‘‘showerhead’’ definition back to the 

ASME standard even though, in the 

same paragraph, EPCA provides that 

certain other terms have ‘‘the meaning 

given such term in ASME A119.19.2M– 

1990.’’ PIRG also stated that the 

references to ASME in the definition, 

energy conservation standard, and 

labeling requirements do not have 

anything to do with what constitutes 

and does not constitute a showerhead.10

PIRG explained that Congress’s use of 

ASME standards in EPAct 1992 was 

surgically precise. (PIRG, No. 0082 at 

pp.6–7) 

Upon further consideration, DOE 

agrees with the commenters that 

Congress did not intend that the 

definition of ‘‘showerhead’’ be required 

to conform with the definition of 

‘‘showerhead’’ in the ASME standard. 

This interpretation comports with 

Congress’s decision not to align the 

‘‘showerhead’’ definition with the 

ASME standard, and it also better 

reflects the policies embodied in EPCA. 

As highlighted by PIRG, EPCA provides 

explicit direction to define the terms 

‘‘water closet’’ and ‘‘urinal’’ in 

accordance with ASME A112.19.2M, in 

the same legislation and paragraph, as it 

adopted the definition of 

‘‘showerhead’’—which did not include 

a reference to applicable ASME 

standard. (See Sec. 123(b)(5) of Pub. L. 

102–486) Further, the mere fact that the 

terms immediately preceding 

showerhead are ‘‘ASME’’ and ‘‘ANSI’’ 

does not suggest that Congress intended 

for DOE to rely on the ASME definition. 

EPCA directly references ASME 

A112.18.1M–1989 or a revised version 

of the standard approved by ANSI for 

showerhead test procedures, energy 

conservation standards, and labeling 

requirements, but noticeably does not 

provide such a reference for the 

definition of ‘‘showerhead.’’ Congress 

clearly illustrated in EPAct 1992 that if 

it had intended for DOE to apply the 

definition of ‘‘showerheads’’ from 

ASME A112.18.1M–1989 (assuming a 

definition of ‘‘showerhead’’ was include 

in the 1989 standard), it would have 

provided the necessary reference. 

Therefore, DOE believes that Congress 

intended DOE to have flexibility to 

define ‘‘showerhead’’ without 

necessarily conforming with the 

definition in the applicable ASME 

standard. 

4. The Previous Definition of 

‘‘Showerhead’’ Did Not Effectively Ban 

Multi-Headed Showerheads 

EPCA contains a provision that 

prevents the Secretary from prescribing 

an amended or new standard if the 

Secretary finds that interested persons 

have established by a preponderance of 

the evidence that the standard is likely 

to result in the unavailability in the 

United States in any covered product 

type (or class) of performance 

characteristics (including reliability), 

features, sizes, capacities, and volumes 

that are substantially the same as those 

generally available in the United States 

at the time of the Secretary’s finding. (42 

U.S.C. 6295(o)(4)) 

In the August 2020 NOPR, DOE 

proposed to adopt an amended 

definition of ‘‘showerhead’’ that 

complies with the Congressional 

directive to preserve performance 

characteristics and features that were 

available on the market at the time DOE 

originally acted to eliminate them. 85 

FR 49284, 49291. DOE explained that it 

cannot regulate or otherwise act to 

remove products with certain 

performance characteristics and features 

from the market given the prohibition in 

42 U.S.C. 6295(o)(4). 85 FR 49284, 

49290. In the December 2020 Final Rule, 

DOE further explained that considering 

two, three or eight showerheads in a 

given product to be a ‘‘feature’’ is 

consistent with DOE’s previous 

rulemakings and determinations of what 

constitutes a feature.11 85 FR 81341, 

81347. DOE stated that following the 

2011 Enforcement Guidance, which 

appeared to effectively ban the vast 

majority of products with multiple 

showerheads from the market, DOE 

codified in DOE regulations its effective 

ban on products with multiple 

showerheads from the market. 85 FR 

49284, 49291. Further, DOE 

acknowledged, as is the case with the 

August 2020 definitional proposed rule, 

that the 2013 rule was not a standards 

rulemaking and did not comply with the 

statutory requirements of a standards 

rulemaking. DOE stated, however, that 

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

entirely eliminated from the market, 

were significantly reduced in 

availability as a result of the 2011 

Enforcement Guidance. 85 FR 81341, 

81347. 

As part of DOE’s reconsideration of 

the December 2020 Final Rule, DOE 

reviewed comments received in 

response to the August 2020 NOPR’s 

discussion of section 6295(o)(4) of 

EPCA. The California Energy 

Commission (‘‘CEC’’) explained that, 

based on the plain language of the 

statute, section 6295(o)(4) of EPCA 

applies only to standards and the 


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12See OMB Circular A–119 s 6.a.2. 

October 2013 Final Rule did not directly 

or effectively amend any standards. But 

CEC also clarified that assuming, 

arguendo, that section 6295(o)(4) of 

EPCA is relevant, DOE’s own analysis 

shows that at least 3% of the existing 

market consists of multi-headed 

showerheads that meet the current 

standard. As such, no performance 

characteristics were eliminated from the 

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

DOE agrees with CEC and DOE’s own 

statement in the December 2020 Final 

Rule that the October 2013 Final Rule 

was not a standards rulemaking. 

Assuming arguendo that DOE did 

amend the water conservation standard 

or that the rule had the effect of a water 

conservation standard, the October 2013 

Final Rule did not eliminate multiheaded showerheads from the market. 

DOE explained in the August 2020 

NOPR that 3% of the 7,221 basic models 

of showerheads are multi-headed 

showerheads. 85 FR 49284, 49293. DOE 

has again reviewed its certification 

database and found that currently there 

are 7,704 basic models of showerheads, 

with multi-headed showerheads 

continuing to account for 3% of all basic 

models. Therefore, 42 U.S.C. 6295(o)(4) 

was not applicable in the October 2013 

Final Rule as DOE did not amend the 

standard for showerheads there, nor did 

the rule eliminate multi-headed 

showerheads from the market as there 

are currently over 231 basic models on 

the market. Further, as multi-headed 

showerheads have not been eliminated 

from the market, DOE is not 

determining whether multi-headed 

showerheads provide a functionality/ 

performance characteristic. (See 42 

U.S.C. 6295(o)(4)) As such, the existing 

definition complied with the 

Congressional directive to preserve 

performance characteristics and features 

and the directive did not provide a basis 

for adoption of a new definition. 

5. The December 2020 Final Rule’s 

Definition of ‘‘Showerhead’’ Falls 

Within the NTTAA and OMB Circular 

A–119 Exception to Adherence to 

Voluntary Consensus Standards Because 

It Is Inconsistent With EPCA and 

Impractical 

Section 12(d)(1) of NTTAA requires 

that Federal departments ‘‘use technical 

standards that are developed or adopted 

by voluntary consensus standards 

bodies, except when the use of the 

technical standards is inconsistent with 

applicable law or otherwise 

impractical.’’ (Pub. L. 104–113, 110 Stat. 

783 (Mar. 7, 1996), as amended by Pub. 

L. 107–107, Div. A, Title XI, section 115, 

115 Stat. 1241 ((Dec. 28, 2001) (codified 

at 15 U.S.C. 272 note)). Similarly, OMB 

Circular A–119 directs Federal agencies 

to use voluntary consensus standards 

unless inconsistent with applicable law 

or otherwise impractical. (Section 1 of 

OMB Circular A–119; https://

www.whitehouse.gov/wp-content/ 

uploads/2020/07/revised_circular_a119_as_of_1_22.pdf.) 

In the December 2020 Final Rule, 

DOE stated that the new definition of 

‘‘showerhead’’ is consistent with the 

requirements of the NTTAA and the 

associated OMB Circular A–1119. 85 FR 

81341, 81342. DOE explained that EPCA 

does not preclude DOE from using 

industry standards and that the 

statutory text of EPCA does not make 

compliance with OMB Circular A–119 

inconsistent with applicable law or 

otherwise impracticable. DOE further 

stated that it disagrees that the ASME 

definition frustrates and is inconsistent 

with the requirements of EPCA. 85 FR 

81341, 81348. 

As part of DOE’s reconsideration of 

the December 2020 Final Rule, DOE 

tentatively determined, in light of the 

comments provided during the August 

2020 NOPR, that it is not appropriate to 

rely on the consensus industry 

standards as they relate to showerheads 

in accordance with the NTAA and OMB 

Circular A–119 because the current 

‘‘showerhead’’ definition based on 

ASME consensus industry standards is 

inconsistent with EPCA and is 

impractical. 

DOE received comments on the 

August 2020 NOPR regarding the 

appropriateness of DOE relying on the 

voluntary consensus standard 

developed by ASME in accordance with 

the NTAA and OMB Circular A–119. 

NRDC noted that the reference to A–119 

and DOE’s explanation of it clearly 

points out the inappropriateness of the 

proposed change in the definition, 

because the ASME definition frustrates 

and is inconsistent with the statutory 

requirement to establish and maintain 

an upper bound on the flowrate of 

showerheads and that adopting the 

proposed definition would allow multinozzle arrays without any upper bound 

of the combined flowrate of this kind of 

shower device. (NRDC, Public Meeting 

Transcript at pp.21–22) Similarly, PIRG 

commented that the 2.5 gpm standard 

was not a policy objective determined 

by DOE; it was a water conservation 

standard determined by Congress. PIRG 

further stated that the NTTAA does not 

instruct DOE to base its interpretation of 

Congressional policy by referring to 

industry standards and that even if it 

did, NTTAA itself states that an agency 

should not follow an industry standard 

where that is inconsistent with 

applicable law. PIRG explained that 

DOE’s proposal is inconsistent with 

EPAct 1992, and thus NTTAA provides 

no safe harbor. As discussed, EPAct 

1992 described in detail how the 

showerheads program should interact 

with ASME standards—NTTAA does 

not repeal or amend those directives. In 

regard to OMB Circular A–119, PIRG 

commented that DOE’s reliance on OMB 

Circular A–119 is misplaced for the 

same reasons. In particular, as PIRG 

commented, Congress specified the 

policy goals that DOE must consider 

when it makes rules under EPCA; 

Circular A–119 could not supplant 

those policy goals with an extrastatutory mandate. (PIRG, No. 0082, 

pg.8) Sierra Club and Earth Justice 

highlighted that even if OMB Circular 

A–119 ordinarily requires agencies to 

use voluntary consensus standards as 

described by NTTAA, the Circular 

contains an expansive exception based 

on the impracticality of compliance. 

Sierra Club and Earth Justice cited to 

Circular A–119’s definition of 

‘‘impractical’’ as including 

‘‘circumstances in which such use 

would fail to serve the agency’s program 

needs; would be infeasible; would be 

inadequate, ineffectual, inefficient, or 

inconsistent with agency mission; or 

would impose more burdens, or would 

be less useful, than the use of another 

standard.’’ 12 Sierra Club and Earth 

Justice commented also that to the 

extent adhering to the ASME standard 

would result in increased showerhead 

consumption, DOE was within its rights 

in elevating the fulfillment of EPCA’s 

purpose above the encouragement of 

consensus industry standards. (Sierra 

Club and Earthjustice, No. 0085, pp.3– 

4) 

DOE agrees with the commentators 

that DOE should not adopt an industry 

standard here, where it would conflict 

with EPCA’s requirements and be 

impractical. (See 15 U.S.C. 272 note; 

OMB Circular A–119 s6.a.2) DOE’s 

determination in the December 2020 

Final Rule did not properly weigh the 

ASME definition of ‘‘showerhead’’ as 

compared to the purposes of EPCA, as 

it pertains to the NTTAA and OMB 

Circular A–119. Upon reconsideration, 

DOE now believes that adopting the 

ASME industry standards for the 

definition of ‘‘showerhead’’ here 

conflicts with EPCA and is impractical 

because it would not serve the purposes 

of water and energy conservation. The 

‘‘showerhead’’ definition and 

interpretation in the December 2020 

Final Rule is inconsistent with EPCA 

and is impractical because it would 

likely increase water usage, increase 


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associated energy use, and increase 

GHG emissions, directly contrary to 

EPCA’s purposes. As discussed in 

section III.A.2 of this document, DOE 

has tentatively determined that the 

December 2020 Final Rule’s definition 

of ‘‘showerhead’’ is inconsistent with 

EPCA’s purposes of water and energy 

conservation. Therefore, the NTTAA 

and OMB Circular A–119 authorize and 

comprehend DOE’s departure from the 

use of the voluntary consensus standard 

developed by ASME in ASME/ANSI 

A112.18–1–2018 for the definition of 

‘‘showerhead’’ because it would be 

inconsistent with EPCA and 

impractical. 

B. Withdrawal of DOE’s Current 

Definition of ‘‘Body Spray’’ 

DOE adopted a definition for ‘‘body 

spray’’ in the December 2020 Final Rule. 

DOE defined the term ‘‘body spray’’ as 

‘‘a shower device for spraying water 

onto a bather from other than the 

overhead position. A body spray is not 

a showerhead.’’ 85 FR 81341, 81359. 

After a reconsideration of this 

definition, DOE proposes to withdraw 

the definition of ‘‘body spray.’’ 

In the December 2020 Final Rule, 

DOE concluded that the definition of 

‘‘showerhead’’ in the October 2013 Final 

Rule did not specifically include or 

exclude body sprays and that this 

omission may have introduced 

uncertainty for regulated parties and 

therefore it is appropriate to clarify that 

body sprays are not showerheads. 85 FR 

81341, 81350. DOE also stated that 

leaving the scope of products not 

subject to EPCA’s energy conservation 

standard undefined, and potentially 

subjecting manufacturers of body sprays 

to DOE standards, causes more 

confusion than establishing a regulatory 

definition. As such, DOE determined 

that it was appropriate to clarify the 

existing ambiguity following the 

October 2013 Final Rule that did not 

include body sprays within the 

definition of ‘‘showerhead,’’ and also 

did not define what constituted a ‘‘body 

spray.’’ 85 FR 81341, 81350. 

As part of its review of the definition 

of ‘‘body spray’’, DOE has reconsidered 

comments received in response to the 

August 2020 NOPR. Several 

commenters expressed concern that the 

proposal, to define the term ‘‘body 

spray’’ to clarify that these products are 

not subject to the current energy 

conservation standards, would result in 

wasteful and unnecessary ‘‘deluge’’ 

showers, which would also consume 

much more hot water. (WVWD, No. 

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

AWE, et al., No. 0079 at p.2) Further, 

Valley Water explained that redefining 

body sprays signals that these products 

are not subject to the current energy 

conservation standards and thus can 

flow at any rate, resulting in an increase 

in water and energy use and a financial 

strain for American households. (Valley 

Water, No. 0076 at p.1) 

Other commentators highlighted that 

the then-proposed definition of ‘‘body 

spray’’ was unnecessary because there 

was no technical difference between a 

showerhead and a body spray to warrant 

a separate definition. (CEC, No. 0083 at 

p.3; CA IOUs, Public Meeting Transcript 

at p.22; CA IOUs, No. 0084 at pp.3–5) 

CEC noted their concern that the thenproposed definition of ‘‘body spray’’ 

relied on manufacturer intent and 

consumer installation decisions, rather 

than discernable technical differences 

between products. (CEC, No. 0083 at 

p.3) The CA IOUs commented that, in 

their research, they have been unable to 

identify a technical difference between 

body sprays and showerheads other 

than the orientation of installation. (CA 

IOUs, Public Meeting Transcript at p.22) 

The CA IOUs conducted a review of 

retailer websites that indicated that 

shower units with body spray capability 

are generally marketed or sold as 

combination shower systems or shower 

panels with an overhead showerhead 

component. The CA IOUs stated that 

industry considers body sprays a form 

of showerhead. The CA IOUs further 

explained that the marketplace does not 

clearly distinguish stand-alone body 

sprays from conventional showerheads 

and that the market tends to include 

body spray capability in all-in-one 

shower systems. The CA IOUs found 

that all stand-alone body sprays and allin-one shower systems identified in 

their research complied with the current 

water conservation standards. (CA IOUs, 

No. 0084 at pp.3–5) 

The CA IOUs also discussed the 

treatment of body sprays and 

showerheads in the 2018 ASME 

Standard. Specifically, the CA IOUs 

stated that the definitions of 

‘‘showerhead’’ and ‘‘body spray’’ in the 

2018 ASME Standard suggests that body 

sprays designed and marketed as a 

stand-alone product and other 

showerhead devices differ only based 

on installation position in the end-use 

application. As such, the standard treats 

showerheads and body sprays similarly. 

(CA IOUs, No. 0084 at p.3) Further, the 

CA IOUs highlighted a comment made 

in response to the April 2013 SNOPR by 

Maximum Performance Testing. In the 

comment referenced by the CA IOUs, 

Maximum Performance stated that to 

create a distinction between 

showerheads and body sprays fails the 

reality test. In shower applications 

where body sprays and an overhead 

showerhead are present, there is no 

reason to classify one component as 

different than the other component. 

((CA IOUs, No. 0084 at p.4 citing 

(Maximum Performance, EERE–2011– 

BT–TP–0061–0029 at p.1)) 

After further consideration, DOE 

agrees with commenters that the current 

definition of ‘‘body spray’’ and the 

interpretation that body sprays are not 

a showerhead does not effectively 

address the relationship between these 

two products. As highlighted by the CA 

IOUs, the 2018 ASME standard, as well 

as the 2012 ASME standard, treat the 

products similarly and the only 

difference between the definitions of 

‘‘showerhead’’ and ‘‘body spray’’ is the 

installation location. Further, the market 

review conducted by the CA IOUs 

suggests that these two products are not 

treated differently in the marketplace. 

Given the similar treatment by the 

industry standard and the market, as 

well as the lack of discernable 

differences between the products, DOE 

believes that the current definition does 

not best address the relationship 

between these two products. 

In addition, DOE agrees that the 

current definition of ‘‘body spray’’ may 

result in excessive water use that is 

inconsistent with EPCA’s purposes. 

While DOE explained in the December 

2020 Final Rule that leaving the term 

‘‘body sprays’’ undefined introduced 

uncertainty into the market about 

whether those products needed to 

comply with the 2.5 gpm standard, the 

research done by CA IOUs shows that 

products with body sprays complied 

with the energy conservation standard. 

As such, DOE has tentatively 

determined that the current definition of 

‘‘body spray’’ should be withdrawn. 

C. Safety Shower Showerhead 

In the December 2020 Final Rule, 

DOE established a definition for the 

term ‘‘safety shower showerhead.’’ 85 

FR 81341. Specifically, DOE defined 

‘‘safety shower showerhead’’ to mean ‘‘a 

showerhead designed to meet the 

requirements of ANSI/ISEA Z358.1 

(incorporated by reference, see § 430.3)’’ 

10 CFR 430.2. In this proposed rule, 

DOE does not propose to amend the 

definition of ‘‘safety shower 

showerhead.’’ DOE continues to agree 

with several of the findings in the 

December 2020 Definition Final Rule: 

That leaving undefined the scope of 

products not subject to EPCA’s energy 

conservation standard causes confusion 

and is inappropriate; that what is meant 

by a ‘‘safety shower showerhead’’ or 

emergency shower is understood in the 

regulated industry; that it is unlikely 


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that manufacturers of showerheads 

intended for use by residential 

consumers would design a showerhead 

to meet the specifications of the ANSI 

standard in order to avoid compliance 

with DOE standards; and that the 

definition and performance criteria in 

the definition of ‘‘safety shower 

showerhead’’ addressed concerns noted 

by the commenters in the 2020 

rulemaking and distinguish a 

showerhead from a safety shower 

showerhead. See 85 FR 81341, 81350– 

81351. Accordingly, DOE believes that 

retaining the definition of ‘‘safety 

shower showerhead’’ is necessary and 

appropriate. 

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

The Office of Information and 

Regulatory Affairs (‘‘OIRA’’) in the 

Office of Management and Budget 

(‘‘OMB’’) waived Executive Order 12866 

(‘‘E.O.’’) 12866, ‘‘Regulatory Planning 

and Review’’ review of this proposed 

rule. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of an initial regulatory flexibility 

analysis (‘‘IRFA’’) for any rule that by 

law must be proposed for public 

comment, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

As required by E.O. 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(Aug. 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s website (https://energy.gov/ 

gc/office-general-counsel). 

DOE reviewed this proposed rule 

under the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. DOE certifies that the proposed 

rule, if adopted, would not have 

significant economic impact on a 

substantial number of small entities. 

The factual basis for this certification is 

set forth in the following paragraphs. 

The Small Business Administration 

(SBA) considers a business entity to be 

a small business, if, together with its 

affiliates, it employs less than a 

threshold number of workers or earns 

less than the average annual receipts 

specified in 13 CFR part 121. The 

threshold values set forth in these 

regulation use size standards codes 

established by the North American 

Industry Classification System (NAICS) 

that are available at: https://

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

manufacturers are classified under 

NAICS 332913 ‘‘Plumbing Fixture 

Fitting and Trim Manufacturing,’’ and 

NAICS 327110 ‘‘Pottery, Ceramics, and 

Plumbing Fixture Manufacturing.’’ The 

SBA sets a threshold of 1,000 employees 

or fewer for an entity to be considered 

a small business within these categories. 

This proposed rule would withdraw 

the current definition of showerhead 

and reinstate the prior definition of 

showerhead. This proposal would also 

withdraw the definition of body sprays. 

Finally, this proposal would retain the 

definition of safety shower showerhead. 

DOE has not found any showerheads 

that have been introduced into the 

market since the December 2020 Final 

Rule became effective that would meet 

the revised definitions in the December 

2020 Final Rule. As such, DOE has not 

found any evidence of a reliance interest 

on the December 2020 Final Rule. Based 

on the foregoing, DOE certifies that this 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

C. Review Under the Paperwork 

Reduction Act of 1995 

Manufacturers of showerheads must 

certify to DOE that their products 

comply with any applicable energy 

conservation standards. To certify 

compliance, manufacturers must first 

obtain test data for their products 

according to the DOE test procedures, 

including any amendments adopted for 

those test procedures. DOE has 

established regulations for the 

certification and recordkeeping 

requirements for all covered consumer 

products and commercial equipment, 

including showerheads. (See generally 

10 CFR part 429.) The collection-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 time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

D. Review Under the National 

Environmental Policy Act of 1969 

DOE is analyzing this proposed 

regulation in accordance with the 

National Environmental Policy Act 

(NEPA) and DOE’s NEPA implementing 

regulations (10 CFR part 1021). DOE’s 

regulations include a categorical 

exclusion for rulemakings interpreting 

or amending an existing rule or 

regulation that does not change the 

environmental effect of the rule or 

regulation being amended. 10 CFR part 

1021, subpart D, appendix A5. DOE 

anticipates that this rulemaking, which 

focuses on the narrow question of how 

to define a particular product and does 

not otherwise impose any requirements, 

will qualify for categorical exclusion 

A5. This interpretive rulemaking would 

revise the definition of ‘‘showerhead’’ 

from the December 2020 Rule by 

reinstating the previous definition and 

otherwise meets the requirements for 

application of a categorical exclusion. 

See 10 CFR 1021.410. DOE has not 

found any showerheads that have been 

introduced into the market since the 

December 2020 Final Rule became 

effective that would meet the revised 

definitions in the December 2020 Final 

Rule. DOE will complete its NEPA 

review before issuing the final rule. 

E. Review Under Executive Order 13132 

E.O. 13132, ‘‘Federalism,’’ 64 FR 

43255 (Aug. 10, 1999), imposes certain 

requirements on Federal agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have Federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have Federalism implications. On 

March 14, 2000, DOE published a 

statement of policy describing the 

intergovernmental consultation process 

it will follow in the development of 

such regulations. 65 FR 13735. DOE has 

examined this proposed rule and has 

tentatively determined that it would not 


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have a substantial direct effect on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. EPCA governs and 

prescribes Federal preemption of State 

regulations as to energy conservation for 

the products that are the subject of this 

proposed rule. States can petition DOE 

for exemption from such preemption to 

the extent, and based on criteria, set 

forth in EPCA. (42 U.S.C. 6297) No 

further action is required by Executive 

Order 13132. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of E.O. 

12988, ‘‘Civil Justice Reform,’’ imposes 

on Federal agencies the general duty to 

adhere to the following requirements: 

(1) Eliminate drafting errors and 

ambiguity, (2) write regulations to 

minimize litigation, (3) provide a clear 

legal standard for affected conduct 

rather than a general standard, and (4) 

promote simplification and burden 

reduction. 61 FR 4729 (Feb. 7, 1996). 

Regarding the review required by 

section 3(a), section 3(b) of E.O. 12988 

specifically requires that Executive 

agencies make every reasonable effort to 

ensure that the regulation: (1) Clearly 

specifies the preemptive effect, if any, 

(2) clearly specifies any effect on 

existing Federal law or regulation, (3) 

provides a clear legal standard for 

affected conduct while promoting 

simplification and burden reduction, (4) 

specifies the retroactive effect, if any, (5) 

adequately defines key terms, and (6) 

addresses other important issues 

affecting clarity and general 

draftsmanship under any guidelines 

issued by the Attorney General. Section 

3(c) of Executive Order 12988 requires 

Executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and determined that, to the 

extent permitted by law, this proposed 

rule meets the relevant standards of E.O. 

12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (‘‘UMRA’’) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. Public Law 104–4, 

section 201 (codified at 2 U.S.C. 1531). 

For a proposed regulatory action likely 

to result in a rule that may cause the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

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

The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect them. On March 18, 1997, DOE 

published a statement of policy on its 

process for intergovernmental 

consultation under UMRA. 62 FR 

12820. DOE’s policy statement is also 

available at https://energy.gov/sites/ 

prod/files/gcprod/documents/umra_

97.pdf. 

This proposed rule contains neither 

an intergovernmental mandate nor a 

mandate that may result in the 

expenditures of $100 million or more in 

any one year, so these requirements 

under the Unfunded Mandates Reform 

Act do not apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

proposed rule would not have any 

impact on the autonomy or integrity of 

the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

I. Review Under Executive Order 12630 

Pursuant to E.O. 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (Mar. 15, 1988), 

DOE has determined that this proposed 

rule would not result in any takings that 

might require compensation under the 

Fifth Amendment to the U.S. 

Constitution. 

J. Review Under Treasury and General 

Government Appropriations Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

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

for Federal agencies to review most 

disseminations of information to the 

public under information quality 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

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

DOE’s guidelines were published at 67 

FR 62446 (Oct. 7, 2002). Pursuant to 

OMB Memorandum M–19–15, 

Improving Implementation of the 

Information Quality Act (April 24, 

2019), DOE published updated 

guidelines which are available at 

https://www.energy.gov/sites/prod/files/ 

2019/12/f70/DOE%20Final%20

Updated%20IQA%20Guidelines%20

Dec%202019.pdf. DOE has reviewed 

this proposed rule under the OMB and 

DOE guidelines and has concluded that 

it is consistent with applicable policies 

in those guidelines. 

K. Review Under Executive Order 13211 

E.O. 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use,’’ 66 

FR 28355 (May 22, 2001), requires 

Federal agencies to prepare and submit 

to OIRA at OMB, a Statement of Energy 

Effects for any proposed significant 

energy action. A ‘‘significant energy 

action’’ is defined as any action by an 

agency that promulgates or is expected 

to lead to promulgation of a final rule, 

and that (1) is a significant regulatory 

action under Executive Order 12866, or 

any successor order; and (2) is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy, or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This proposed rule—which would 

amend the definition of showerhead, 

withdraw the definition of body spray, 

and retain the definition of safety 

shower showerhead—would not have a 

significant adverse effect on the supply, 

distribution, or use of energy and, 

therefore, is not a significant energy 

action. Accordingly, DOE has not 

prepared a Statement of Energy Effects 

on this proposed rule. 

V. Public Participation 

A. Participation in the Webinar 

The time and date of the webinar are 

listed in the DATES section at the 

beginning of this document. Webinar 

registration information, participant 


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38606 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules 

instructions, and information about the 

capabilities available to webinar 

participants will be published on DOE’s 

website: https://www1.eere.energy.gov/ 

buildings/appliance_standards/ 

standards.aspx?productid=2&action=

viewlive. Participants are responsible for 

ensuring their systems are compatible 

with the webinar software. 

B. Procedure for Submitting Prepared 

General Statements for Distribution 

Any person who has an interest in the 

topics addressed in this proposed 

rulemaking, or who is representative of 

a group or class of persons that has an 

interest in these issues, may request an 

opportunity to make an oral 

presentation at the webinar. Such 

persons may submit requests to speak 

by email to: 

Showerheads2021STD0016@ee.doe.gov. 

Persons who wish to speak should 

include with their request a computer 

file in WordPerfect, Microsoft Word, 

PDF, or text (ASCII) file format that 

briefly describes the nature of their 

interest in this rulemaking and the 

topics they wish to discuss. Such 

persons should also provide a daytime 

telephone number where they can be 

reached. 

Persons requesting to speak should 

briefly describe the nature of their 

interest in this proposed rulemaking 

and provide a telephone number for 

contact. DOE requests persons selected 

to make an oral presentation to submit 

an advance copy of their statements at 

least two weeks before the webinar. At 

its discretion, DOE may permit persons 

who cannot supply an advance copy of 

their statement to participate, if those 

persons have made advance alternative 

arrangements with the Building 

Technologies Office. As necessary, 

requests to give an oral presentation 

should ask for such alternative 

arrangements. 

C. Conduct of the Webinar 

DOE will designate a DOE official to 

preside at the webinar and may also use 

a professional facilitator to aid 

discussion. The meeting will not be a 

judicial or evidentiary-type public 

hearing, but DOE will conduct it in 

accordance with section 336 of EPCA 

(42 U.S.C. 6306). A court reporter will 

be present to record the proceedings and 

prepare a transcript. DOE reserves the 

right to schedule the order of 

presentations and to establish the 

procedures governing the conduct of the 

webinar. There shall not be discussion 

of proprietary information, costs or 

prices, market share, or other 

commercial matters regulated by U.S. 

anti-trust laws. After the webinar and 

until the end of the comment period, 

interested parties may submit further 

comments on the proceedings and any 

aspect of the rulemaking. 

The webinar will be conducted in an 

informal, conference style. DOE will 

present summaries of comments 

received before the webinar, allow time 

for prepared general statements by 

participants, and encourage all 

interested parties to share their views on 

issues affecting this proposed 

rulemaking. Each participant will be 

allowed to make a general statement 

(within time limits determined by DOE), 

before the discussion of specific topics. 

DOE will permit, as time permits, other 

participants to comment briefly on any 

general statements. 

At the end of all prepared statements 

on a topic, DOE will permit participants 

to clarify their statements briefly. 

Participants should be prepared to 

answer questions by DOE and by other 

participants concerning these issues. 

DOE representatives may also ask 

questions of participants concerning 

other matters relevant to this 

rulemaking. The official conducting the 

webinar will accept additional 

comments or questions from those 

attending, as time permits. The 

presiding official will announce any 

further procedural rules or modification 

of the above procedures that may be 

needed for the proper conduct of the 

webinar. 

A transcript of the webinar will be 

included in the docket, which can be 

viewed as described in the Docket 

section at the beginning of this NOPR. 

In addition, any person may buy a copy 

of the transcript from the transcribing 

reporter. 

D. Submission of Comments 

DOE will accept comments, data, and 

information regarding this proposed 

rule before or after the public meeting, 

but no later than the date provided in 

the DATES section at the beginning of 

this proposed rule. Interested parties 

may submit comments, data, and other 

information using any of the methods 

described in the ADDRESSES section at 

the beginning of this document. 

Submitting comments via https://

www.regulations.gov. The https://

www.regulations.gov web page will 

require you to provide your name and 

contact information. Your contact 

information will be viewable to DOE 

Building Technologies staff only. Your 

contact information will not be publicly 

viewable except for your first and last 

names, organization name (if any), and 

submitter representative name (if any). 

If your comment is not processed 

properly because of technical 

difficulties, DOE will use this 

information to contact you. If DOE 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, DOE may not be 

able to consider your comment. 

However, your contact information 

will be publicly viewable if you include 

it in the comment itself or in any 

documents attached to your comment. 

Any information that you do not want 

to be publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Persons viewing comments will see only 

first and last names, organization 

names, correspondence containing 

comments, and any documents 

submitted with the comments. 

Do not submit to https://

www.regulations.gov information for 

which disclosure is restricted by statute, 

such as trade secrets and commercial or 

financial information (hereinafter 

referred to as Confidential Business 

Information (‘‘CBI’’)). Comments 

submitted through https://

www.regulations.gov cannot be claimed 

as CBI. Comments received through the 

website will waive any CBI claims for 

the information submitted. For 

information on submitting CBI, see the 

Confidential Business Information 

section. 

DOE processes submissions made 

through https://www.regulations.gov 

before posting. Normally, comments 

will be posted within a few days of 

being submitted. However, if large 

volumes of comments are being 

processed simultaneously, your 

comment may not be viewable for up to 

several weeks. Please keep the comment 

tracking number that https://

www.regulations.gov provides after you 

have successfully uploaded your 

comment. 

Submitting comments via email. 

Comments and documents submitted 

via email also will be posted to https:// 

www.regulations.gov. If you do not want 

your personal contact information to be 

publicly viewable, do not include it in 

your comment or any accompanying 

documents. Instead, provide your 

contact information in a cover letter. 

Include your first and last names, email 

address, telephone number, and 

optional mailing address. The cover 

letter will not be publicly viewable as 

long as it does not include any 

comments. 

Include contact information each time 

you submit comments, data, documents, 

and other information to DOE. No 

telefacsimiles (‘‘faxes’’) will be 

accepted. 

Comments, data, and other 

information submitted to DOE 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules 38607 

electronically should be provided in 

PDF (preferred), Microsoft Word or 

Excel, WordPerfect, or text (ASCII) file 

format. Provide documents that are not 

secured, that are written in English, and 

that are free of any defects or viruses. 

Documents should not contain special 

characters or any form of encryption 

and, if possible, they should carry the 

electronic signature of the author. 

Campaign form letters. Please submit 

campaign form letters by the originating 

organization in batches of between 50 to 

500 form letters per PDF or as one form 

letter with a list of supporters’ names 

compiled into one or more PDFs. This 

reduces comment processing and 

posting time. 

Confidential Business Information. 

Pursuant to 10 CFR 1004.11, any person 

submitting information that he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit via email two well-marked 

copies: One copy of the document 

marked ‘‘confidential’’ including all the 

information believed to be confidential, 

and one copy of the document marked 

‘‘non-confidential’’ with the information 

believed to be confidential deleted. DOE 

will make its own determination about 

the confidential status of the 

information and treat it according to its 

determination. 

It is DOE’s policy that all comments 

may be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this notice of proposed 

rulemaking. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Incorporation by reference, 

Intergovernmental relations, Small 

businesses. 

Signing Authority 

This document of the Department of 

Energy was signed on July 15, 2021, by 

Kelly Speakes-Backman, Principal 

Deputy Assistant Secretary and Acting 

Assistant Secretary for Energy Efficiency 

and Renewable Energy, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on July 16, 

2021. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons set forth in the 

preamble, DOE proposes to amend part 

430 of chapter II, subchapter D, of title 

10 of the Code of Federal Regulations, 

as set forth below: 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 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 

removing the definition of ‘‘Body 

spray’’, and revising the definition of 

‘‘Showerhead’’, to read as follows: 

§ 430.2 Definitions. 

* * * * * 

Showerhead means a component or 

set of components distributed in 

commerce for attachment to a single 

supply fitting, for spraying water onto a 

bather, typically from an overhead 

position, excluding safety shower 

showerheads. 

* * * * * 

[FR Doc. 2021–15528 Filed 7–21–21; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 43 

[Docket No. OCC–2019–0012] 

FEDERAL RESERVE SYSTEM 

12 CFR Part 244 

[Docket No. OP–1688] 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 373 

RIN 3064–ZA07 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1234 

[Notice No. 2019–N–7] 

SECURITIES AND EXCHANGE 

COMMISSION 

17 CFR Part 246 

[Release No. 34–92326] 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Part 267 

[FR–6172–N–03] 

Credit Risk Retention—Notification of 

Extension of Review Period 

AGENCY: Office of the Comptroller of the 

Currency, Treasury (OCC); Board of 

Governors of the Federal Reserve 

System (Board); Federal Deposit 

Insurance Corporation (FDIC); U.S. 

Securities and Exchange Commission 

(Commission); Federal Housing Finance 

Agency (FHFA); and Department of 

Housing and Urban Development 

(HUD). 

ACTION: Notification of extension of 

review period. 

SUMMARY: The OCC, Board, FDIC, 

Commission, FHFA, and HUD (the 

agencies) are providing notice of the 

extension of the period for the review, 

and publication of determination of the 

review, of the definition of qualified 

residential mortgage; the communityfocused residential mortgage exemption; 

and the exemption for qualifying threeto-four unit residential mortgage loans, 

in each case as currently set forth in the 

Credit Risk Retention Regulations (as 

defined below) as adopted by the 

agencies. 


lotter on DSK11XQN23PROD with PROPOSALS1