The Department of Energy’s proposal to re-define showerheads as shower valves is headed for an early fall conclusion and may contain some provisions favorable to the plumbing industry, but indications are that the final ruling is likely to add significant restrictions to showerhead choice.            

Those were among the details confirmed by Scott Blake Harris, the DOE’s general counsel, during a recent wide-ranging and candid interview on this hot-button topic with PM. He left little doubt that some of the industry’s complaints are falling on deaf ears.            

Harris said his hope is to clarify the definition, which was originally proposed as allowing only a single showerhead using no more than 2.5 gallons of water per minute per showering compartment, to be finalized in several months.            

“We’re shooting for September, but it could fall into October,” Harris said. “By early fall, we want it done.”            

Responding to widespread criticism concerning the lack of original involvement of stakeholders prior to the proposal being placed in the Federal Register, Harris pointed out the agency, because it was only clarifying a definition, was under no obligation to have a public comments period, which it did allow.            

“We are under no obligation to get comments,” Harris said. “We did not want to do this in a way that is unfair or in a way that caught people by surprise. We are simply explaining to people what the existing rule means for future guidance. I believe in the process of public comment and the raising of any concerns or complaints. It’s a valuable process to go through and we decided to go through with it.            

“We’ve learned a lot of things in the public comments, like hand-held devices for the elderly and disabled being enormously helpful. We’re taking those comments into account.”            

Harris noted the current way he has presented the interpretation of the showerhead definition may not necessarily be the way it will end up in his final ruling.            

“We will issue a final guidance in the fall. But having said that, nothing is over until it over,” he explained. “No final decision has been made one way or the other on this. I anticipate the final rule to be somewhat different than the purposed rule. We take this process seriously. We’re reading the comments and learning about them and that will affect our thinking. We’ve provided much more process here than required by law.”            

Harris confirmed the specific issue of how the rule would affect the elderly and disabled will be taken into consideration.            

“The rule is not going to say the elderly and disabled can buy something. We’ll draft the rule in such a way where, for example, devices that provide handheld nozzles that the elderly and disabled use will be treated in a different way than a showerhead that has half-a-dozen nozzles,” he said. “I don’t know quite how that is going to work yet. We do intend to address those concerns. My mom is in assisted living and has Parkinson’s disease. I understand the issue. We do not want to bring any undue harm to anybody.”            

He also mentioned a grace period could be attached to the final ruling.            

“My inclination is there will be a certain amount of time where we will take no enforcement action under the new rule,” Harris said. “That will allow manufacturers to sell existing inventory. It’s not my goal to cause any economic disruption. It’s not my goal to have people throw away showerheads.”            

Harris said the DOE also offered the plumbing industry additional time to submit comments on the subject.            

“We offered an extension of time and we were told it wasn’t needed and that they intended to sue us. Our understanding was industry needed more time to express their concerns,” he stated. “That’s fine to bring action against the government. If they do sue us, which is fine, I’m confident we will prevail. The truth is, my instinct is to work with industry on crafting rules and accomplishing stated objectives. I’m not sure industry is as interested in working with us as I had hoped. If I was representing industry, I think I would have handled it differently.”            

Harris also tackled two of the plumbing industry’s biggest concerns about the proposed definition interpretation—consumer choice and economic impact.            

“Civilization is about a balance of individual choice and social needs,” Harris began. “My kid would desperately love to drive 95 miles per hour on the Interstate. Society says he can’t. There are people here in my office who would love to smoke cigarettes in the office. Society said you can’t because of the impact on other people. This rule is a restraint on choice because of other people wasting water and wasting an enormous amount of energy. Because of that, Congress put this constraint on.            

“The second part of this is none of these devices tell people they are using 10 gallons of water per minute when the current law says 2.5 gallons per minute. I’m not entirely sure in this day and age that if someone went to buy a showerhead and was told how much water they would be using that they would actually choose to waste 10-15 gallons of water per minute. Most people would be appalled, I think.”            

Harris also questions the plumbing industry’s $400 million per year economic impact figure if the ruling would go into effect.            

“They have to provide the information to back that up,” Harris said. “Based on numbers we’ve seen, these showerheads are in 1 to 4 percent of homes. I don’t know how you do the math to get $400 million. If you don’t have a 10-gallon-per-minute showerhead, you still need a showerhead. It’s going to be less expensive. Maybe people don’t spend $5,000 on the shower and they spend $1,000 or $200 or 49 bucks like me?”            

Harris stressed numerous times the DOE is simply clarifying a definition it adopted from Congress.            

“Congress ruled on this issue almost 20 years ago,” Harris said. “It says any showerhead can’t be more than 2.5 gallons per minute. If you add two nozzles, that’s two showerheads? Give me a break. That doesn’t pass the giggle test. If your showerhead has four nozzles, then the showerhead should use 10 gallons per minute rather than the statute-mandated 2.5. I thought that was somewhat of a stretch.            

“It’s clear to me industry wrongly and mistakenly adopted this view to what the law meant. We issued an interpretation and will respond to substantive arguments people make. People are entitled to do that and those comments will have an impact on our thinking as is appropriate.”            

Harris has invited individuals to read the public comments on this issue at www.regulations.gov.