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Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations 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.10 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.11 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 2011
Enforcement Guidance document based on its conclusion that the term any showerhead has been, and continues to be, sufficiently clear such that no interpretive rule is needed. Id. In the 2011 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 purpose 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.
Consequently, 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. The diversification of the marketplace as it pertains to showerheads and the confusion about what products were considered a showerhead by manufacturers following inclusion of the term in EPCA, as amended by EPAct 1992, further illustrate that the statutory definition of showerhead is 10 See https www.regulations.gov/
document?D=EERE-2010-BT-NOA-0016-0002.
11 See https www.energy.gov/sites/prod/files/
gcprod/documents/Showerhead_Guidancel.pdf.

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ambiguous. In the July 2021 NOPR, DOE
stated that it believes that any ambiguity in the statutory meaning should be explicated by a regulatory definition that is consistent with EPCAs purposes.
86 FR 38594, 38598.
In response to the July 2021 NOPR, commenters highlighted the circular nature of the statutory definition of showerhead. CEI et al. commented that the statutory definition of showerhead is circularthe definition of the term includes the term being defined i.e., showerhead is a showerhead. Further, CEI et al. argued that the December 2020 Final Rule concluded that the statutory uncertainty was largely resolved when the pershowerhead approach was adopted by ASME, even though the July 2021 NOPR
asserted ongoing doubt. CEI et al., No.
18 at p. 2 And Hekstra agreed that consumers and manufacturers appreciate clarity and a circular definition is not clear. Hekstra, No. 17
at p. 1.
DOE agrees that the statutory definition of showerhead is a circular definition, which further illustrates the ambiguity of a term that is defined by itself. Further, contrary to CEI et al.s assertion that the statutory uncertainty was resolved in the December 2020
Final Rule, the December 2020 Final Rule stated that ambiguity exists regarding what is considered a showerhead under EPCA and, in that rule, DOE said it was clarifying what constitutes a showerhead. 85 FR
81341, 81344. As outlined in the previous discussion, DOE continues to find that the statutory definition of showerhead is ambiguous for the reasons presented in the July 2021
NOPR and in this final rule. Ambiguity in the statutory meaning is appropriately resolved by a regulatory definition that furthers EPCAs purposes consistent with that statute.
2. The December 2020 Final Rules Definition of Showerhead Is Inconsistent With EPCAs Purposes As outlined in the July 2021 NOPR, Congress included a statement of purpose in EPCA that sets forth seven purposes related to energy. Most relevant to the Energy Conservation Program, one of the primary purposes of EPCA 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; see 86
FR 38594, 38598. The EPAct 1992
amended EPCA by adding plumbing products, including showerheads, to the products covered by the Energy Conservation Program. Pub. L. 102486

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Oct. 24, 1992 In doing so, EPAct 1992
also added to EPCA the purpose of conservation of water by improving the water efficiency of certain plumbing products and appliances, in addition to the purpose of energy savings. 42
U.S.C. 62018
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.12 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. emphasis omitted 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.13
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.
While the 2020 rulemaking acknowledged that water conservation is among EPCAs purposes, it did not fully account for how its definition of showerhead would comport with this purpose of EPCA. 85 FR 81341, 81353.
In the July 2021 NOPR, DOE stated that the definition of showerhead 12 See https www.regulations.gov/
document?D=EERE-2010-BT-NOA-0016-0002.
13 See https www.energy.gov/sites/prod/files/
gcprod/documents/Showerhead_Guidancel.pdf.

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