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Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
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October 2013 Final Rule definition and that such-products are high-performing plumbing products. PMI, No. 22 at p.
2 PMI further stated that its member companies did not produce, sell or distribute modified showerheads to meet the new definition of showerhead that was put in place in the December 2020 Final Rule. Id.
As explained in the December 2020
Final Rule and the July 2021 NOPR, DOEs previous definitional changes and rulemakings for showerheads were not standards rulemakings nor is DOE
establishing or amending standards for showerheads. Therefore DOE is not determining whether multi-headed showerheads provide a functionality/
performance characteristic. See 42
U.S.C. 6295o4 Even assuming arguendo, as in the July 2021 NOPR 86
FR 38594, 53602, that DOE did amend the water conservation standard or that the rule had the effect of a water conservation standard, the definition established in the October 2013 Final Rule did not eliminate multi-headed showerheads from the market. A review of the market prior to the December 2020 Final Rule illustrated that three percent of the 7,221 basic models of showerheads are multi-headed showerheads. See 85 FR 49284, 49293.
While the information DOE used to determine the number of multi-headed showerheads in the July 2021 NOPR is no longer available,14 DOE has conducted a general review of models currently on the retail market, which indicates that showerheads with multiple nozzles/spray components, continue to be available. Given that multi-headed showerheads continue to be available in the market, this action does not reduce performance nor remove any features from the market as asserted by CEI.
CEI et al. also expressed concern about the performance quality of multiheaded showerheads required to meet the 2.5 gpm standard for the whole system. See CEI, No. 18 at pp. 45 PMI
explained that that its members have been able to produce high-performing showerheads consistent with the October 2013 Final Rule. See PMI, No.
22 at p. 2 If the provision at 42 U.S.C.
6295o4 were applicable to this rulemaking, which as discussed it is not, CEI et al. have not established by a preponderance of evidence the 14 For the December 2020 Final Rule, DOE
determined the percentage of showerheads that are multi-headed showerheads using a retailer website.
However, the same retailer website no longer provides the information needed to calculate an updated percentage. In addition, CCMS does not distinguish multi-headed showerheads from other showerheads.

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unavailability of showerheads with multiple nozzles/spray components, as required by EPCA. The October 2013
Final Rule definition, i.e., the definition reinstated by this final rule, did not eliminate multi-head shower heads from the market. As such, the definition adopted in this final rule is consistent with the Congressional directive to preserve performance characteristics and features.
5. The Definition of Showerhead Falls Within the NTTAA and OMB Circular A119 Exception to Adherence to Voluntary Consensus Standards Because It Is Inconsistent With EPCA and Impractical Section 12d1 of the NTTAA
requires that Federal departments use technical standards that are developed or adopted by voluntary consensus standards bodies, except when the use of the technical standards is inconsistent with applicable law or otherwise impractical. Pub. L. 104
113, 110 Stat. 783 Mar. 7, 1996, as amended by Public Law 107107, Div.
A, Title XI, section 115, 115 Stat. 1241
Dec. 28, 2001 codified at 15 U.S.C.
272 note. Similarly, OMB Circular A
119 directs Federal agencies to use voluntary consensus standards unless inconsistent with applicable law or otherwise impractical. Section 1 of OMB Circular A119;
www.whitehouse.gov/wp-content/
uploads/2020/07/revised_circular_a119_as_of_1_22.pdf.
In the December 2020 Final Rule, DOE stated that the definition of showerhead adopted in that final rule is consistent with the requirements of the NTTAA and the associated OMB
Circular A119. 85 FR 81341, 81342.
DOE explained that EPCA does not preclude DOE from using industry standards and that the statutory text of EPCA does not make compliance with OMB Circular A119 inconsistent with applicable law or otherwise impracticable. Id. at 85 FR 81348. DOE
further stated that it disagrees that the ASME definition frustrates and is inconsistent with the requirements of EPCA. Id.
As part of DOEs reconsideration of the December 2020 Final Rule, DOE
tentatively determined in the July 2021
NOPR, in light of the comments provided during the rulemaking for the December 2020 Final Rule, that it is not appropriate to rely on the consensus industry standards as they relate to showerheads in accordance with the NTTAA and OMB Circular A119
because the December 2020 Final Rule definition of showerhead based on ASME consensus industry standards is
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inconsistent with EPCA and is impractical. 86 FR 38594, 3860238632.
DOE did not receive comment to the July 2021 NOPR regarding the NTTAA
and OMB Circular A119 exception.
For the reasons set forth in the July 2021 NOPR, DOE finds that it should not adopt an industry standard here, as it would conflict with EPCAs requirements and be impractical. See 15 U.S.C. 272 note; OMB Circular A
119 section 5.c.15 DOEs determination in the December 2020 Final Rule did not properly weigh the ASME definition of showerhead in the context of the purposes of EPCA, as it pertains to the NTTAA and OMB Circular A119.
Upon reconsideration, adopting the ASME industry standards for the definition of showerhead in the present context conflicts with EPCA and is impractical because it does not serve the purposes of water and energy conservation. And the showerhead definition and interpretation in the December 2020 Final Rule is inconsistent with EPCA and is impractical because it would permit increased water usage and increased associated energy use, directly contrary to EPCAs purposes. As such, the definition of showerhead is within the exception of NTTAA and OMB
Circular A119.
6. Additional Comments/Issues DOE received a comment regarding the applicability of EPCAs antibacksliding provision. AWE et al. stated that on its face, the December 2020
Final Rule change amended the standard applicable to showerheads, and did so in a way that increased the maximum allowable water use of showerheads. They argue therefore that the 2020 Rule thus violated EPCAs anti-backsliding rule, 42 U.S.C.
6295o1. AWE et al., No. 21 at p. 1
AWE et al. further argued that the December 2020 Final Rule rationalized that DOE had not established the previous interpretation through a standards rulemaking. AWE asserted that the anti-backsliding rule does not require, as a predicate, that there was a previous standards-setting rulemaking.
Instead, AWE stated that the 2.5-gpm standard was established by Congress, just as EPCA establishes many other initial conservation standards, and DOE
established the pre-2020 status quo in an appropriate wayexplaining its interpretation through a guidance document, reiterating that interpretation 15 DOE incorrectly referred to the wrong section of OMB Circular A119 section 6.a.2. in the August 2021 NOPR. 86 FR 38594, 38603. The correct citation is used in this document.

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