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

October 2013 Final Rule did not directly or effectively amend any standards. But CEC also clarified that assuming, arguendo, that section 6295o4 of EPCA is relevant, DOEs 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 DOEs 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. 6295o4
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. 6295o4 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 Rules Definition of Showerhead Falls Within the NTTAA and OMB Circular A119 Exception to Adherence to Voluntary Consensus Standards Because It Is Inconsistent With EPCA and Impractical Section 12d1 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. 104113, 110 Stat.
783 Mar. 7, 1996, as amended by Pub.
L. 107107, Div. A, Title XI, section 115, 115 Stat. 1241 Dec. 28, 2001 codified at 15 U.S.C. 272 note. Similarly, OMB

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Circular A119 directs Federal agencies to use voluntary consensus standards unless inconsistent with applicable law or otherwise impractical. Section 1 of OMB Circular A119; 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 A1119. 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 A119
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 DOEs 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 A119 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 A119.
NRDC noted that the reference to A119
and DOEs 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.2122 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
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DOEs 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 standardsNTTAA does not repeal or amend those directives. In regard to OMB Circular A119, PIRG
commented that DOEs reliance on OMB
Circular A119 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 A119 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 A119 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 A119s definition of impractical as including circumstances in which such use would fail to serve the agencys 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 EPCAs 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 EPCAs requirements and be impractical. See 15 U.S.C. 272 note;
OMB Circular A119 s6.a.2 DOEs 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 A119. 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 12 See
E:FRFM22JYP1.SGM

OMB Circular A119 s 6.a.2.

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