Rep. Issa could kill proposed showerhead rule

It’s amazing the things that mysteriously appear in my office. Today I was surprised to see a copy of a letter from the Plumbing Manufacturers International to Rep. Darrell Issa (R-Calif.) Chairman of the House Committee on Oversight and Government Reform, regarding the U.S. Department of Energy.

In the letter, PMI Executive Director Barb Higgens tells Issa that the industry is vexed by two recent actions of DOE — its proposal to ban multi-head shower systems and its waiver of Federal preemption over state water efficiency rules. Both topics may be intertwined, as I noted in my story in the January issue of CONTRACTOR (http://contractormag.com/news/doe-water-rule-waiver-1234/).

Issa solicited PMI’s letter, along with many others. In a posting February 7, Slate.com ran a story headlined, “Businesses don't like regulation. What else is new?”

Its author, Timothy Noah, wrote, “In December Rep. Darrell Issa, R.-Calif., then-incoming chairman of the House committee on oversight and government reform, sent letters to 150 businesses and pro-business groups asking them to tell him which regulations they hate. Now we have their answer: 1,947 pages of grumpy replies. The online PDF is more than 57 megabytes, which is more than my computer can handle, but this pile isn't meant to be read so much as weighed.”

In the PMI/DOE instance, DOE said it had to waive Federal preemption by law because the industry, namely the ANSI/ASME A112 committee, hadn’t changed efficiency requirements for plumbing products since 1996. The thing is, the way the law is phrased, Federal preemption could have ended in 2001. So why did DOE publish the notice in the Federal Register in December of 2010? Engineering consultant John Koeller may be onto something when he says that he thinks DOE announced the end of Federal preemption to wiggle out of the showerhead rule.

When DOE announced last summer that it was “reinterpreting” what had been the definition of a showerhead since the mid-‘90s, it set off a firestorm. DOE was supposed to announce its final determination on the reinterpretation before Thanksgiving, but so far we haven’t heard a thing.

“I believe that we have two issues the Committee will want to examine in this regard,” Higgens wrote to Issa. “The first involves the U.S. Department of Energy (DOE) unilateral action significantly changing the definition of a ‘showerhead.’ This is a dramatic and highly visible case currently pending before OIRA. (OIRA is the Office of Information and Regulatory Affairs.) PMI has argued that the DOE action to reinterpret their longstanding definition of ‘showerhead’ without a formal rulemaking process constitutes a total disregard of the Administrative Procedures Act and will result in hundreds of millions of dollars in recurring costs and a corresponding loss of jobs to the plumbing industry and to plumbing contractors.”

A copy of the PMI letter can be found here: http://contractormag.com/PMI-Letter-To-Chairman-Issa.pdf

Higgens goes on to delineate all the reasons why this would be a bad, bad thing. Some of the things she says about the potential impact of the proposed rule may be speculative (“… will potentially jeopardize the validity of shower systems already installed and approved by code officials …”), but DOE’s proposal, nevertheless, was overreaching. If the Department really thought it was right, it should have gone through the formal rulemaking procedure and argued its case. We’ve even had (gasp) people in the industry tell us that they thought DOE was correct and why. There’s a case to be made here. But by doing it the way they did it, DOE just comes off as high-handed.

On the second part of the PMI letter, Higgens says that industry “should be included in discussions about adopting more stringent efficiency standards to ensure maximum product performance and availability, as well as consumer satisfaction and safety.” As I pointed out in my January article, plumbing manufacturers knew that Federal preemption was technically dead for years, so they haven’t complained when states like California enacted stricter standards.

PMI and all of Issa’s other correspondents will get a sympathetic ear from the chairman. My bet is that the DOE showerhead reinterpretation is dead. On the second issue, a conservative Republican will not object to states determining their own water rules. PMI will have to guide the process through state legislatures, something it has done well in the past.