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Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Rules and Regulations
in the 2013 rulemaking, and confirming it in a regulatory definition. AWE
further stated that regardless of whether the process involved a standards-setting rule, the outcome was certain: Until December 2020, a multiple-nozzle product was allowed to flow only at a maximum rate of 2.5 gpm. AWE et al.
suggested that DOE is therefore obligated to revoke the 2020 Rule, because that Rule is simply contrary to EPCA and unlawful. AWE et al., No. 21
at p.2
DOE agrees with AWE, et al. that the December 2020 Final Rule amendment of the definition of showerhead could lead to increased water use. As discussed in section III.2., DOE also agrees with AWE, et al. that the definition of showerhead in the December 2020 Final Rule is inconsistent with EPCAs purposes of energy and water conservation. Further, DOE is withdrawing the definition of showerhead adopted in the December 2020 Final Rule and returning to the definition from the October 2013 Final Rule. However, EPCAs anti-backsliding provision prohibits DOE from prescribing any amended standard which increases the maximum allowable energy use, or, in the case of showerheads, faucets, water closets, or urinals, water use, or decreases the minimum required energy efficiency, of a covered product. 42 U.S.C.
6295o1 The adoption of new or revised definitions for products, including showerheads, does not implicate the anti-backsliding provisions because it is not a standard nor does it alter the current standard.
This final rule only amends the definition of showerhead and does not amend the standards for showerheads, which were established by Congress in EPCA. See 42 U.S.C.
6295j1
DOE also received comments generally opposed to the regulation of the water flow of showerheads. See Doty, No. 3 at p. 1; Southerland, No. 2
at p. 1; Walters, No. 4 at p. 1 Ramer commented that the proposed definition will place a higher cost, due to testing, for showerhead manufacturers and consumers. Ramer, No. 10 at p. 1
Halligan asked whether a grace period would be provided to allow businesses and building owners to retrofit existing models. Halligan, No. 8 at p. 1 As discussed in section II.B., Congress established the definition of showerhead in EPAct 1992 and tasked DOE with implementing the provisions related to definitions, standards, and test procedure requirements for plumbing products.
Pub. L. 102486; Oct. 24, 1992 Sec.

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123 Further, the definition adopted in this final rule and the statutory standard apply to products as manufactured, not products already installed. See generally 42 U.S.C. 6302
A commenter also questioned whether the December 2020 Final Rules definition of showerhead really limited DOEs capabilities in the water conservation effort. Johnston, No. 7 at p. 1 As discussed in section IV.A.II, the December 2020 Final Rules definition for showerhead would increase water and energy use.
B. Withdrawal of DOEs Current Definition of Body Spray DOE adopted a definition for body spray in the December 2020 Final Rule, concluding that the definition of showerhead in the October 2013 Final Rule did not specifically include or exclude body sprays and that this omission may have introduced uncertainty for regulated parties and that therefore it is appropriate to clarify that body sprays are not showerheads.
85 FR 81341, 81350. DOE defined the term body spray as a shower device for spraying water onto a bather from other than the overhead position. A
body spray is not a showerhead. 85 FR
81341, 81359. DOE also stated that leaving the scope of products not subject to EPCAs energy conservation standard undefined, and potentially subjecting manufacturers of body sprays to DOE standards, causes more confusion than establishing a regulatory definition. 85 FR 81341, 81350.
In the July 2021 NOPR, DOE revisited the definition of body spray, including the comments received in the rulemaking to the December 2020 Final Rule. In the July 2021 NOPR, DOE
tentatively determined that the definition of body spray and the interpretation that body sprays are not a showerhead does not effectively address the relationship between these two products. 86 FR 38594, 38603. The 2018 ASME standard, as well as the 2012 ASME standard, treat the products similarly, and the only difference between the definitions of showerhead and body spray is the installation location. Further, the market review conducted by the CA IOUs during the rulemaking for the December 2020 Final Rule indicates that these two products are not treated differently in the marketplace.16 Given the similar treatment by the industry standard and the market, as well as the lack of discernable differences between the products, DOE tentatively determined 16 See Docket No. EERE2020BTTP00020084
at pp.35.

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that the current definition does not best address the relationship between these two products. Id. In addition, DOE
stated that the current definition of body spray may result in excessive water use that is inconsistent with EPCAs purposes. Id. While DOE
explained in the December 2020 Final Rule that leaving the term body sprays undefined introduced uncertainty into the market about whether those products needed to comply with the 2.5 gpm standard, the research done by CA IOUs shows that products with body sprays complied with the energy conservation standard.
Id. As such, DOE tentatively determined that the current definition of body spray should be withdrawn. Id.
In response to the July 2021 NOPR, DOE received comments expressing support for the withdrawal of the recently codified definition of body spray from the ASAP, CEC, NPCC, CA
IOUs, AWE et al., the District, and the Joint Advocates. CEC, No. 19 at p. 3;
NPCC, No. 12 at p. 2; CA IOUs, No. 20
at p. 1; AWE et al., No. 21 at p. 3; the District, No. 16 at p. 2; Joint Advocates, No. 23 at p. 2; ASAP, Public Meeting Transcript at p. 5
Specifically, CEC stated that the December 2020 Final Rule established an ambiguous definition for body spray that relies solely on manufacturer intent and consumer installation decisions, rather than discernable technical differences between the products. CEC, No. 19 at p. 3 CEC added that this change to how DOE treats body sprays created a significant loophole for manufacturers to develop and sell devices that perform the same function as a showerhead, but are not required to meet the maximum 2.5 gpm flow rate simply because of manufacturer intent or device placement. Id. at pp. 34 AWE et al.
stated that withdrawing the definition of body spray is consistent with the purposes of the EPCA and will comply with current ASME A112.18.1/CSA
B125.1 standard. AWE et al., No. 21 at p.3 AWE et al. also explained that the body spray exclusion constitutes a significant loophole, allowing a product to be sold, installed, and used with water flow far in excess of the statutory standard, just because the water approaches the bather from a different angle. Id. Further, the Joint Advocates explained that industry standards and market research show that body spray and showerhead products are technically comparable and are often treated similarly in the market, with the only difference being the location of installation and as such, body spray products should not be explicitly
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