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Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
showerhead as any showerhead including a handheld showerhead, except a safety shower showerhead.
42 U.S.C. 629131D In the same paragraph, Congress provided explicit direction to define the terms water closet and urinal in accordance with ASME A112.19.2M, but did not provide such instructions with respect to showerhead. Cf. Sec. 123b5 of Pub. L. 102486 DOE has learned since the July 2021 NOPR that ASME
A112.18.1M1989 did not contain a definition for showerheads, but it did contain requirements for showerheads.
Congress adopted the ASME standards only for the water conservation standards, test procedures, and labeling requirements, specified ASME
A112.18.1M1989 as the applicable standard, and required DOE to adopt the revised version of the standard, unless it conflicted with the other requirements of EPCA. 42 U.S.C. 6295j1 and 3;
42 U.S.C. 6293b7; 42 U.S.C.
6294a2E While Congress could not rely on a definition of showerhead in ASME A112.18.1M1989 in defining the term, Congress could have required DOE
to adopt a definition of showerhead as defined in any revised version of the ASME A112.18.1M1989 as it did with requirements for standards and test procedures related to standards.
Congress defined showerhead and did not explicitly require DOE to amend the definition of showerhead in conformity with the applicable ASME
standard.
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 direct DOE to adopt a definition of showerhead from an amended version of the industry standard. Had Congress intended for DOE to apply the definition of showerheads from the industry standard, it would have provided the necessary reference. DOE received a comment only from CEC on this issue.
CEC stated that DOE correctly concludes that Congress did not require DOE to rely on ASME for the definition of showerheads. CEC, No. 19 at p. 3.
Based on the discussion in the preceding paragraphs and presented in the July 2021 NOPR, DOE maintains its decision that it is not required to define showerhead according to the ASME
definition and that Congress intended
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DOE to have flexibility to define the term.
4. The Reinstated Definition of Showerhead Does Not Effectively Ban Multi-Headed Showerheads As discussed in the July 2021 NOPR, EPCA provides that the Secretary is prohibited from prescribing an amended or new standard if the Secretary finds that interested persons 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; 86 FR 38594, 38601.
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 49298, 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 49282, 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. 85 FR 81341, 81347. DOE further stated that following the 2011 Enforcement Guidance, which DOE stated 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. DOE
acknowledged, as is the case with the August 2020 definitional proposed rule, that the October 2013 Final Rule was not a standards rulemaking and did not comply with the statutory requirements of a standards rulemaking. 85 FR 81341, 81347. DOE stated, however, that the effect was the same in that multi-headed showerhead products, while not entirely eliminated from the market, were significantly reduced in availability as a result of the 2011 Enforcement Guidance. Id.
In the July 2021 NOPR, DOE revisited its application of section 6295o4 of EPCA in the context of the showerhead definition. 86 FR 38594,
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38601. As discussed in the July 2021
NOPR, the unavailability provision of section 6295o4 of EPCA applies to the establishment and amendment of standards. Further, 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 multi-headed showerheads from the market. DOE
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.SC. 6295o4 was not applicable in the October 2013 Final Rule as DOE did not amend the standard for showerheads, 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. Id. at 86 FR
38602.
CEI et al. stated that EPCA forbids any standard that compromises product features and performance. CEI et al., No. 18 at p. 3 CEI et al. argued that the law only requires a showing that at least one model including such feature was generally available at the time the standard was promulgated, and that Congress could have explicitly overridden the consumer protections in the law and categorically outlawed any and all shower configurations that allow more than 2.5 gpm in total, and that the statute did not clearly do so. CEI et al., No. 18 at p. 4 Finally, CEI et al. further stated that although DOE reasserted that any changes to the definition of showerhead are not a new or amended standards rulemaking, the reinterpretation has the effect of changing the standard and as such must comply with the pro-consumer provisions in the statute. CEI et al., No.
18 at p. 4 CEI et al. also stated that while multi-showerhead units can be manufactured as long as they do not use more than 2.5 gpm in total, such models are unlikely to deliver desired performance and thus would not meet the statutory requirements of being substantially the same. CEI et al., No.
18 at pp. 45
In support of the July 2021 NOPR, PMI explained that its members have spent millions of dollars on research and development, manufacturing, thirdparty certification, packaging, marketing, and distribution of waterefficient showerheads to meet the
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