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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules
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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. DOEs 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 EPCAs purposes.
2. The December 2020 Final Rules Definition of Showerhead Is Inconsistent With EPCAs Purposes EPCA sets forth seven purposes that provide a basis for DOEs 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. 62014; Pub. L. 94163 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. 102486 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. 62018
DOE has considered the relationship between the definition of showerhead, the 2.5 gpm EPCA
standard, and EPCAs 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
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conflict with EPCAs 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-00160002 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 DOEs 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 EPCAs 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
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among EPCAs purposes. 85 FR 81341, 81353. In this proposed rulemaking, DOE reviews the December 2020 Final Rules definition of showerhead as it relates to EPCAs 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 DOEs 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 5 The parenthetical reference provides a reference for information located in the docket of DOEs rulemaking to amend the definition of showerhead.
Docket No. EERE2020BTTP0002, 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.

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