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

shower showerhead from the ANSI/
International Safety Equipment Association ISEA Z358.12014,4
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 Nations 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 Departments 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 Rules redefinition of showerhead, and to reinstate the October 2013 Final Rules definition of showerhead. DOE
therefore proposes that the term showerhead be defined, as it was defined in DOEs 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 4 ANSI/ISEA Z358.12014, American National Standard for Emergency Eyewash and Shower Equipment.

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proposes to withdraw December 2020
Final Rules 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 EPCAs 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 DOEs Current Definition of Showerhead DOE has undertaken a review of the December 2020 Final Rule. DOE
proposes to withdraw the December 2020 Final Rules definition of showerhead and reinstate the definition of showerhead from the October 2013 Final Rule. DOE has tentatively determined that EPCAs definition of showerhead is ambiguous and that the December 2020 Final Rules definition of showerhead is not consistent with EPCAs 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
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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 Rules definition of showerhead is inconsistent with EPCAs purposes and falls within the National Technology Transfer and Advancement Act of 1995
NTTAA and OMB Circular A119
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. EPCAs 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.
629131D. 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-00160002 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 DOEs interpretation of the definition of showerhead with respect to the 2.5 gpm maximum water use requirement. Id. at 12.
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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