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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules 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 DOEs 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. 629131B
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 Congresss 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 NOPRs suggestion that Congress intended that DOEs actions with regard to showerheads be consistent with ASME. PIRG stated that DOEs 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 9 See 42 U.S.C. 6295j1 and 3; 42 U.S.C.
6295b7; 42 U.S.C. 6294a2E.

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anything to do with what constitutes and does not constitute a showerhead.10
PIRG explained that Congresss use of ASME standards in EPAct 1992 was surgically precise. PIRG, No. 0082 at pp.67
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 Congresss 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 showerheadwhich did not include a reference to applicable ASME
standard. See Sec. 123b5 of Pub. L.
102486 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
A112.18.1M1989 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 A112.18.1M1989 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 10 The ASME references in the energy conservation standard discuss design requirements in relation to EPAct 1992s 2.5 gpm maximum flow rate; the references do not purport to define showerhead. 42 U.S.C. 6295j Although section 6294a2e 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

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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 Secretarys finding. 42
U.S.C. 6295o4
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. 6295o4. 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 DOEs 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 DOEs reconsideration of the December 2020 Final Rule, DOE
reviewed comments received in response to the August 2020 NOPRs discussion of section 6295o4 of EPCA. The California Energy Commission CEC explained that, based on the plain language of the statute, section 6295o4 of EPCA
applies only to standards and the 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.

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