
[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Rules and Regulations]
[Pages 74360-74368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23413]



[[Page 74360]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-TRI-2022-0270; FRL-8741-04-OCSPP]
RIN 2070-AK97


Changes to Reporting Requirements for Per- and Polyfluoroalkyl 
Substances and to Supplier Notifications for Chemicals of Special 
Concern; Community Right-to-Know Toxic Chemical Release Reporting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is adding per- and 
polyfluoroalkyl substances (PFAS) subject to reporting under the 
Emergency Planning and Community Right-to-Know Act (EPCRA) and the 
Pollution Prevention Act (PPA) pursuant to the National Defense 
Authorization Act for Fiscal Year 2020 (NDAA) to the list of Lower 
Thresholds for Chemicals of Special Concern (chemicals of special 
concern). These PFAS already have a lower reporting activity threshold 
of 100 pounds. The addition of these PFAS to the list of chemicals of 
special concern means such PFAS are subject to the same reporting 
requirements as other chemicals of special concern (i.e., it eliminates 
the use of the de minimis exemption and the option to use Form A and 
would limit the use of range reporting for PFAS). Removing the 
availability of these burden-reduction reporting options will result in 
a more complete picture of the releases and waste management quantities 
for these PFAS. EPA is removing the availability of the de minimis 
exemption for purposes of the Supplier Notification Requirements for 
all chemicals on the list of chemicals of special concern. This will 
help ensure that purchasers of mixtures and trade name products 
containing such chemicals are informed of their presence in mixtures 
and products they purchase to better inform any TRI reporting 
obligations.

DATES: This final rule is effective November 30, 2023 and shall apply 
for the reporting year beginning January 1, 2024 (reports due July 1, 
2025).

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-TRI-2022-0270, is available online at 
https://www.regulations.gov or in person at the Office of Pollution 
Prevention and Toxics Docket (OPPT Docket) in the Environmental 
Protection Agency Docket Center (EPA/DC). All documents in the docket 
are listed on https://www.regulations.gov. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Additional instructions on visiting the docket, 
along with more information about dockets generally, is available at 
https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: 
    For technical information contact: Daniel R. Ruedy, Data Gathering 
and Analysis Division (7406M), Office of Pollution Prevention and 
Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460-0001; telephone number: (202) 564-7974; email: 
[email protected].
    For general information contact: The Emergency Planning and 
Community Right-to-Know Hotline; telephone numbers: toll free at (800) 
424-9346 (select menu option 3) or (703) 348-5070 in the Washington, DC 
Area and International; or go to https://www.epa.gov/home/epa-hotlines.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you manufacture, 
process, or otherwise use listed PFAS or any chemicals listed under 40 
CFR 372.28. The following list of North American Industry 
Classification System (NAICS) codes is not intended to be exhaustive, 
but rather provides a guide to help readers determine whether this 
action applies to them. Potentially affected entities may include:
     Facilities included in the following NAICS manufacturing 
codes (corresponding to Standard Industrial Classification (SIC) codes 
20 through 39): 311 *, 312 *, 313 *, 314 *, 315 *, 316, 321, 322, 323 
*, 324, 325 *, 326 *, 327 *, 331, 332, 333, 334 *, 335 *, 336, 337 *, 
339 *, 111998 *, 113310, 211130 *, 212323 *, 212390 *, 488390 *, 512230 
*, 512250 *, 5131 *, 516210 *, 519290 *, 541713 *, 541715 * or 811490 
*. * Exceptions and/or limitations exist for these NAICS codes.
     Facilities included in the following NAICS codes 
(corresponding to SIC codes other than SIC codes 20 through 39): 211130 
* (corresponds to SIC code 1321, Natural Gas Liquids, and SIC 2819, 
Industrial Inorganic Chemicals, Not Elsewhere Classified); or 212114, 
212115, 212220, 212230, 212290 *; or 2211 *, 221210 *, 221330 (limited 
to facilities that combust coal and/or oil for the purpose of 
generating power for distribution in commerce) (corresponds to SIC 
codes 4911, 4931, and 4939, Electric Utilities); or 424690, 424710 
(corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); 
425120 (limited to facilities previously classified in SIC code 5169, 
Chemicals and Allied Products, Not Elsewhere Classified); or 562112 
(limited to facilities primarily engaged in solvent recovery services 
on a contract or fee basis (previously classified under SIC code 7389, 
Business Services, NEC)); or 562211 *, 562212 *, 562213 *, 562219 *, 
562920 * (limited to facilities regulated under the Resource 
Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.) 
(corresponds to SIC code 4953, Refuse Systems). * Exceptions and/or 
limitations exist for these NAICS codes.
     Federal facilities.
     Facilities that the EPA Administrator has specifically 
required to report to TRI pursuant to a determination under EPCRA 
section 313(b)(2).
    A more detailed description of the types of facilities covered by 
the NAICS codes subject to reporting under EPCRA section 313 can be 
found at: https://www.epa.gov/toxics-release-inventory-tri-program/tri-covered-industry-sectors. To determine whether your facility is 
affected by this action, you should carefully examine the applicability 
criteria in part 372, subpart B of title 40 of the Code of Federal 
Regulations. Federal facilities are required to report under Section 
6(a)-(b) of Executive Order 14096 (88 FR 25251 April 21, 2023), 
Revitalizing Our Nation's Commitment to Environmental Justice for All. 
If you have questions regarding the applicability of this action to a 
particular entity, consult the person listed under FOR FURTHER 
INFORMATION CONTACT.

B. What action is the Agency taking?

    EPA is adding all PFAS included on the Toxics Release Inventory 
(TRI) pursuant to sections 7321(b) and 7321(c) of the 2020 NDAA to the 
list of chemicals of special concern (40 CFR 372.28). EPA maintains a 
list of PFAS added to the TRI list pursuant to the NDAA at: https://www.epa.gov/toxics-release-inventory-tri-program/list-pfas-added-tri-ndaa. The addition of PFAS added to TRI pursuant to sections 7321(b) 
and (c) of the NDAA to the list of chemicals of special concern aligns 
reporting requirements for these PFAS with other chemicals of special 
concern. EPA anticipates this will result in

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additional Form R reports being filed for these PFAS due to the removal 
of the de minimis exemption and the option to use Form A. It also 
limits the use of range reporting, which will capture more specific 
information for PFAS added pursuant to sections 7321(b) and 7321(c) of 
the NDAA.
    In addition, EPA is removing the availability of the de minimis 
exemption under the Supplier Notification Requirements (40 CFR 372.45) 
for facilities that manufacture or process any chemicals included on 
the list of chemicals of special concern.
    This action does not make any changes to the article exemption.

C. What is the Agency's authority for this action?

    This action is issued under EPCRA sections 313, 42 U.S.C. 11023 and 
328, 42 U.S.C. 11048. EPCRA is also referred to as Title III of the 
Superfund Amendments and Reauthorization Act of 1986.

D. Why is the Agency taking this action?

    EPA is taking this action to increase the data collected for PFAS. 
Removing the availability of certain burden-reduction reporting options 
will result in a more complete picture of the releases and waste 
management quantities for PFAS. This will increase the number of TRI 
reports on listed PFAS and the amount of information provided on such 
reports, resulting in more information on the waste management of these 
chemicals available to the Agency, as well as to the public. EPA 
expects this information will be a benefit to the public, including 
communities with environmental justice concerns and public water 
utilities, as well as inform future Agency actions, including under the 
Clean Water Act, the Resource Conservation and Recovery Action, the 
Comprehensive Environmental Response, Compensation, and Liability Act, 
and the Toxic Substances Control Act. In addition, this action will 
increase data collected for all chemicals of special concern by 
eliminating the de minimis exemption for purposes of the Supplier 
Notification Requirements for all chemicals on the list of chemicals of 
special concern. The elimination of this exemption from Supplier 
Notification Requirements ensures that purchasers of mixtures and trade 
name products containing such chemicals are informed of their presence 
in mixtures and products they purchase.

E. What are the estimated incremental impacts of this action?

    EPA prepared an updated economic analysis for this action entitled, 
``Economic Analysis for the Changes to Reporting Requirements for Per- 
and Polyfluoroalkyl Substances and to Supplier Notification 
Requirements for Chemicals of Special Concern; Community Right-to-Know 
Toxic Chemical Release Reporting,'' which presents an analysis of the 
costs of the reporting changes for PFAS and other chemicals of special 
concern based on updated 2022 wage rates and an increase in supplier 
notification burden estimates (Ref. 1). EPA estimates that this action 
will result in an additional 623 to 2,015 Form R reports being filed 
annually. EPA estimates that the costs of this action will be 
approximately $3,318,492 and $10,733,149 in the first year of reporting 
and approximately $1,580,214 and $5,111,044 in the subsequent years. In 
addition, EPA has determined that, of the 486 to 1,333 small businesses 
affected by this action, none are estimated to incur annualized cost 
impacts of more than 1% of revenues. Thus, this action is not expected 
to have a significant adverse economic impact on a substantial number 
of small entities.
    Removing the availability of certain burden-reduction reporting 
options will result in a more complete picture of the releases and 
waste management quantities for PFAS. This will increase the number of 
TRI reports on listed PFAS and the amount of information provided on 
such reports, resulting in more information on the waste management of 
these chemicals available to the Agency, as well as to the public.

II. Background Information

A. What is EPCRA section 313?

    EPCRA section 313, 42 U.S.C. 11023 (also known as the Toxics 
Release Inventory (TRI)), requires certain facilities that manufacture, 
process, or otherwise use listed toxic chemicals in amounts above 
reporting activity threshold levels to report their environmental 
releases and other waste management quantities of such chemicals 
annually. These facilities must also report pollution prevention and 
recycling data for such chemicals, pursuant to PPA section 6607, 42 
U.S.C. 13106.
    TRI provides information about releases of toxic chemicals from 
covered facilities throughout the United States; however, TRI data do 
not reveal whether or to what degree the public is exposed to listed 
chemicals. TRI data can, in conjunction with other information, be used 
as a starting point in evaluating such exposures and the risks posed by 
such exposures. The determination of potential risk to human health 
and/or the environment depends upon many factors, including the 
toxicity of the chemical, the fate of the chemical in the environment, 
and the amount and duration of human or other exposure to the chemical.
    For more information on TRI, visit the TRI website at https://www.epa.gov/tri. Note that TRI does not cover all chemicals, 
facilities, or types of pollution (see https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory for 
information on which chemicals and facilities are regulated under TRI). 
Additionally, via this website, EPA provides a guidance document 
entitled ``Factors to Consider When Using Toxics Release Inventory 
Data'' available at: https://www.epa.gov/system/files/documents/2022-02/factorstoconsider_approved-by-opa_1.25.22-copy.pdf, which helps 
explain some of the uses, as well as limitations, of data TRI collects.

B. What are PFAS?

    PFAS are synthetic organic compounds that do not occur naturally in 
the environment. PFAS contain an alkyl carbon chain on which the 
hydrogen atoms have been partially or completely replaced by fluorine 
atoms. Definitions of what constitutes ``PFAS'' differ amongst 
scientific and regulatory bodies. However, in general, the strong 
carbon-fluorine bonds of PFAS make them resistant to degradation and 
thus highly persistent in the environment (Refs. 2 and 3). Some of 
these chemicals have been used for decades in a wide variety of 
consumer and industrial products (Refs. 2 and 3). Some PFAS have been 
detected in wildlife indicating that at least some PFAS have the 
ability to bioaccumulate (Ref. 3). Because of the widespread use of 
PFAS in commerce and their tendency to persist in the environment, most 
people in the United States have been exposed to PFAS (Refs. 2, 4 and 
5). Some PFAS can accumulate in humans and remain in the human body for 
long periods of time (e.g., months to years) (Refs. 2 and 3), as a 
result, several PFAS have been detected in human blood serum (Refs. 2, 
3, 4, and 5).

C. What PFAS have been added to the TRI list?

    On December 20, 2019, the NDAA was signed into law (Pub. L. 116-92, 
https://www.congress.gov/public-laws/116th-congress). The NDAA included

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two provisions that automatically add PFAS to the TRI list. First, 
section 7321(b) of the NDAA added to the TRI list, effective January 1, 
2020, 14 chemicals by name and/or Chemical Abstracts Service Registry 
Number (CASRN) and additional PFAS that meet specific criteria. On June 
22, 2020 (85 FR 37354 (FRL-10008-09)), EPA updated the TRI list in the 
CFR to reflect the 172 non-CBI PFAS added to TRI by section 7321(b) of 
the NDAA.
    Additional PFAS are added to the TRI list on an annual basis by the 
NDAA. Specifically, PFAS that meet the criteria in section 7321(c) of 
the NDAA are deemed added to the TRI list on January 1 of the year 
after specific criteria are met. Through this provision, the NDAA will 
continue to add PFAS to the TRI list over time as additional PFAS meet 
the criteria outlined in 7321(c). The criteria of section 7321(c) 
require the addition to the TRI list of certain PFAS after any one of 
the following dates:
     Final Toxicity Value. The date on which the Administrator 
finalizes a toxicity value for the PFAS or class of PFAS;
     Significant New Use Rule. The date on which the 
Administrator makes a covered determination for the PFAS or class of 
PFAS;
     Addition to Existing Significant New Use Rule. The date on 
which the PFAS or class of PFAS is added to a list of substances 
covered by a covered determination.
     Addition as an Active Chemical Substance. The date on 
which the PFAS or class of PFAS to which a covered determination 
applies is:
     Added to the list published under section 8(b)(1) of the 
Toxic Substances Control Act (TSCA) (15 U.S.C. 2601 et seq.) and 
designated as an active chemical substance under TSCA section 
8(b)(5)(A); or
     Designated as an active chemical substance under TSCA 
section 8(b)(5)(B) on the list published under TSCA section 8(b)(1).
    EPA updates the TRI list in the CFR to reflect the PFAS added to 
TRI by section 7321(c) of the NDAA. The first update rule identifying 
PFAS that met the 7321(c) criteria during 2020 was published on June 3, 
2021 (86 FR 29698 (FRL-10022-25)).
    To date, section 7321 of the NDAA has added a total of 189 PFAS to 
the TRI list at: https://www.epa.gov/tri/PFAS. A complete list of the 
PFAS added to the TRI list can be found at: https://www.epa.gov/toxics-release-inventory-tri-program/list-pfas-added-tri-ndaa. In addition, 
the NDAA established a manufacture, processing, or otherwise use 
reporting threshold of 100 pounds for each of the PFAS added to the TRI 
list by sections 7321(b) and 7321(c) of the NDAA. In the first year of 
reporting for the initial 172 listed PFAS, EPA only received 89 reports 
from 38 facilities covering 43 different PFAS. Similar levels of PFAS 
reporting were observed in the subsequent year: with 176 PFAS on the 
TRI list in RY2021, only 42 facilities reported submitted a total of 87 
reports covering 43 different PFAS.

III. Summary of Public Comments on Proposed Rule

    Upon publication of the proposed rule on December 5, 2022, EPA 
provided a 60-day comment period (87 FR 74379 (FRL-8714-03-OCSPP)). EPA 
received 36 comments on the proposed rule. EPA received comments from 
citizens, industry groups, non-governmental organizations, and state 
governments. The majority of comments on the proposed rule addressed 
EPA's burden estimates, with the majority stating EPA underestimated 
the burden of listing PFAS as chemicals of special concern and removing 
the supplier notification de minimis exemption would impose. Several 
commenters requested EPA lower the activity thresholds for PFAS. Many 
of the commenters stated that EPA has not demonstrated PFAS meet the 
criteria to be classified as chemicals of special concern. Many of the 
commenters stated that eliminating the regulatory exemptions for PFAS 
will create a more complete picture of PFAS in communities and the 
environment. After considering the public comments, EPA updated the 
economic analysis to incorporate 2022 wage rates, include a summary of 
small entity analysis, and increase the supplier notification burden 
estimates. Further edits to the analysis were not required because EPA 
has made no substantive changes as compared with what had been 
proposed. Summaries of the comments and EPA's responses to the comments 
appear in the Response to Comment document (Ref. 6) which is in the 
docket for this rulemaking.

IV. What changes is EPA making to the TRI reporting requirements?

A. Designating PFAS Automatically Added to the TRI List by the 2020 
NDAA as Chemicals of Special Concern

    EPA is adding all PFAS included on the TRI list pursuant to 
sections 7321(b) and 7321(c) of the NDAA (see 40 CFR 372.65(d) and (e)) 
to the list of chemicals of special concern at 40 CFR 372.28. EPA first 
created the list of chemicals of special concern to increase the 
utility of TRI data by ensuring that the data collected and shared 
through TRI are relevant and topical (Ref. 7). EPA lowered the 
reporting thresholds for chemicals of special concern because even 
small quantities of releases of these chemicals can be of concern. The 
first chemicals that were added to the list of chemicals of special 
concern were those identified as persistent, bioaccumulative and toxic 
(PBT) chemicals which, except for the dioxin and dioxin-like compounds 
category, have reporting thresholds of either 10 or 100 pounds 
depending on their persistent and bioaccumulative properties (Ref. 7). 
Chemicals of special concern are also excluded from the de minimis 
exemption, may not be reported on Form A (Alternate Threshold 
Certification Statement), and have limits on the use of range 
reporting.
    The de minimis exemption allows facilities to not consider small 
concentrations of TRI chemicals not classified as chemicals of special 
concern in mixtures or other trade name products when making threshold 
determinations and release and other waste management calculations. The 
de minimis exemption does not apply to the manufacture of a TRI 
chemical except if that chemical is manufactured as an impurity and 
remains in the product distributed in commerce, or if the chemical is 
imported below the appropriate de minimis level. The de minimis 
exemption does not apply to a byproduct manufactured coincidentally as 
a result of manufacturing, processing, otherwise use, or any waste 
management activities.
    The Form A provides facilities that otherwise meet TRI-reporting 
thresholds the option of certifying on a simplified reporting form 
provided that they do not exceed 500 pounds for the total annual 
reportable amount (described subsequently in this document) for that 
chemical and that their amounts manufactured, processed, or otherwise 
used do not exceed 1 million pounds. All chemicals of special concern 
(except certain instances of reporting lead in stainless steel, brass, 
or bronze alloys) are excluded from Form A eligibility. Form A does not 
include any information on releases or other waste management. Nor does 
it include source reduction information or any other chemical-specific 
information other than the identity of the chemical.
    For certain data elements (Part II, Sections 5, 6.1, and 6.2 of 
Form R), for chemicals not classified as chemicals of special concern, 
the reportable quantity may be reported either as an estimate or by 
using the range codes that have been developed. Currently, TRI 
reporting provides three reporting ranges: 1-10

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pounds, 11-499 pounds, and 500-999 pounds.
    The availability of these burden reduction tools is inconsistent 
with a concern for small quantities of the chemicals and the expanded 
reporting that was sought for chemicals with lower reporting 
thresholds. In the preamble to the 1999 final rule (Ref 7), EPA 
outlined the reasons for promulgating the de minimis exemption (e.g., 
that facilities had limited access to information and that low 
concentrations would not contribute to the activity threshold) and 
determined that those rationales did not apply to chemicals of special 
concern. Id. at 58670. Among the reasons provided, EPA explained that 
even minimal releases of persistent bioaccumulative toxic chemicals may 
result in significant adverse effects and can reasonably be expected to 
significantly contribute to exceeding the proposed lower threshold. Id. 
EPA also determined that facilities reporting on chemicals of special 
concern could not avail themselves of Form A reporting because the 
information provided on Form A is ``insufficient for conducting 
analyses'' on chemicals of special concern and would be ``virtually 
useless for communities interested in assessing risk from releases and 
other waste management'' of such chemicals (i.e., the Form A does not 
include estimated release and other waste management quantities). Id. 
Lastly, EPA eliminated range reporting for chemicals of special concern 
because the use of ranges could misrepresent data accuracy for PBT 
chemicals because the low or the high-end range numbers may not really 
be that close to the estimated value. Id. For the full discussion, see 
Persistent Bioaccumulative Toxic (PBT) Chemicals; Lowering of Reporting 
Thresholds for Certain PBT Chemicals; Addition of Certain PBT 
Chemicals; Community Right-to-Know Toxic Chemical Reporting (Refs. 7 
and 8)
    EPA has determined that PFAS added to EPCRA section 313 by sections 
7321(b) and 7321(c) of the 2020 NDAA should be categorized as chemicals 
of special concern and added to the list in 40 CFR 372.28. The NDAA set 
a 100-pound annual reporting threshold for PFAS added by sections 
7321(b) and 7321(c), which indicates a concern for small quantities of 
such PFAS. EPA has therefore determined that the availability of 
certain burden reduction tools (i.e., de minimis levels, Form A, and 
range reporting) is not justified for these chemicals as the 
availability of these tools is inconsistent with a concern for small 
quantities.
    Further, due to the strength of the carbon-fluorine bonds, many 
PFAS can be very persistent in the environment (Refs. 2, 3, and 9). 
Persistence in the environment allows PFAS concentrations to build up 
over time; thus, even small releases can be of concern. As with PBT 
chemicals, permitting reporting facilities to continue to rely on the 
burden reduction tools (de minimis levels, Form A, and range reporting) 
would eliminate reporting on potentially significant quantities of the 
listed PFAS. As explained in more detail in Unit IV., EPA's rationale 
for eliminating these burden reduction tools for PBT chemicals (Refs. 7 
and 8) applies equally well to PFAS.
    The de minimis exemption allows facilities to not consider 
concentrations of TRI listed chemicals in Unit IV., 1% (0.1% for 
carcinogens) in mixtures or other trade name products they import, 
process, or otherwise use in making threshold calculations and release 
and other waste management (including disposal to land and other types 
of waste management (i.e., energy recovery, recyling, treatment)) 
determinations. Since the de minimis level is based on relative 
concentration rather than a specific amount, the application of this 
exemption to PFAS listed under sections 7321(b) and 7321(c) could allow 
significant quantities of such PFAS to be excluded from TRI reporting 
by facilities. For example, if a facility imports, processes, or 
otherwise uses 100,000 pounds of a mixture or trade name product that 
contains 0.5% of a listed PFAS, then 500 pounds (or five times the 
reporting threshold) would be disregarded. This exclusion is 
inconsistent with a concern for small quantities of PFAS. Many PFAS are 
used in products below the established de minimis levels (Refs. 4 and 
10), and the continued availability of the exemption for PFAS would 
permit facilities to discount those uses when determining whether an 
applicable threshold has been met to trigger reporting.
    The Form A provides certain covered facilities the option of 
submitting a substantially shorter form with a reduced reporting burden 
(Ref. 11). For example, the Form A does not require facilities to 
report any information on releases (e.g., releases through fugitive or 
non-point air emissions, discharges to streams or water bodies) or 
waste management quantities. Facilities can qualify to file a Form A if 
the total annual reportable amount for the listed chemical does not 
exceed 500 pounds, and the amounts manufactured, processed, or 
otherwise used do not exceed 1 million pounds. The annual reportable 
amount is equal to the combined total quantities released at the 
facility (including disposed of within the facility), treated at the 
facility (as represented by amounts destroyed or converted by treatment 
processes), recovered at the facility as a result of recycling 
operations, combusted for the purpose of energy recovery at the 
facility, and amounts transferred from the facility to off-site 
locations for the purpose of recycling, energy recovery, treatment, 
and/or disposal. This means that facilities that are required to report 
data on PFAS and also qualify to file a Form A will not be providing 
specific quantity data on up to 500 pounds of a listed PFAS (five times 
the reporting threshold). For reporting year 2020, approximately 10% of 
the reporting forms submitted for the listed PFAS were Forms A (i.e., 
reporting for TRI reflects 93 active reporting forms of which 84 were 
Forms R and 9 were Forms A). This trend continued with reporting year 
2021, in which 9 of the total 87 reporting forms for PFAS were Form A.
    While the Form A does provide some general information on the 
quantities of the chemical that the facility manages as waste, this 
information may be insufficient for conducting analyses on PFAS and may 
be less meaningful for communities interested in assessing risk from 
releases of PFAS. The threshold category for amounts managed as waste 
does not include quantities released to the environment as a result of 
remedial actions or catastrophic events not associated with production 
processes (section 8.8 of Form R). Thus, the waste threshold category 
in Form A does not include all releases. Given that even small 
quantities of PFAS may result in elevated concentrations in the 
environment, EPA believes it would be inappropriate to allow a 
reporting option that would exclude information on some releases. Thus, 
removing the availability of the use of Form A for PFAS is consistent 
with a concern for understanding small quantities of PFAS.
    For TRI-listed chemicals, other than chemicals of special concern, 
releases and off-site transfers for further waste management of less 
than 1,000 pounds can be reported using ranges or as a whole number. 
The reporting ranges are: 1-10 pounds; 11-499 pounds; and 500-999 
pounds. For larger releases and off-site transfers for further waste 
management of the toxic chemical, the facility must report the whole 
number. Use of ranges could reduce data accuracy because the low or the 
high-end range numbers may not be that close to the estimated value, 
even taking into account inherent data errors (i.e., errors in 
measurements and developing

[[Page 74364]]

estimates). For PFAS, it is important to have accurate data regarding 
the amount released even when the quantities are relatively small, 
since concern may be tied to even small quantities of a substance. This 
issue was apparent for PFAS for reporting years 2020 and 2021 since 
much of the data reported was for less than 1,000 pounds.
    EPA anticipates that the elimination of these burden reduction 
tools will increase the amount and quality of data collected for PFAS 
and is consistent with the concern for small quantities of PFAS (Ref. 
1).

B. Elimination of the Supplier Notification Requirement De Minimis 
Exemption for Chemicals of Special Concern

    EPA is also eliminating the use of the de minimis exemption under 
the Supplier Notification Requirements at 40 CFR 372.45(d)(1) for all 
substances on the list of chemicals of special concern. EPA extended 
the de minimis exemption to the supplier notification requirement in 
its initial TRI reporting rule (53 FR 4500, February 16, 1988 (FRL-
3298-2)). The revised text reads as follows:

    If a mixture or trade name product contains no toxic chemical in 
excess of the applicable de minimis concentration as specified in 40 
CFR 372.38(a) except for chemicals listed under 40 CFR 372.28 which 
are excluded from the de minimis exemption.

    The de minimis exemption to the Supplier Notification Requirements 
allows suppliers to not provide notifications for mixtures or trade 
name products containing the listed toxic chemicals if the chemicals 
are present at concentrations below 1% of the mixture (0.1% for 
carcinogens). The de minimis exemption is not a small quantity 
exemption; it is a small concentration exemption. Therefore, it is 
possible that significant quantities of chemicals of special concern 
can be overlooked by reporting facilities if suppliers can use the de 
minimis exemption. For example, if a mixture or trade name product 
contains 0.9% of a listed PFAS and 100,000 pounds of the product is 
purchased, the supplier need not provide notification and the purchaser 
could be unaware of and not account for 900 pounds of PFAS. The impact 
of this exemption for the PBT chemicals with 10-pound reporting 
thresholds is even greater. Using the same 100,000-pound example, if 
mercury were present at 0.9% then that same 900 pounds would be 90 
times the mercury reporting threshold.
    It is also possible that quantities of chemicals of special concern 
would be included in supplier notifications by reporting facilities if 
suppliers cannot use the de minimis exemption. For example, if a 
mixture or trade name product contains 0.9% of a listed PFAS and 1,000 
pounds of the product is purchased, the supplier would need to provide 
notification for 9 pounds of PFAS. This would also impact PBT chemicals 
with 10-pound reporting thresholds. Using the same 1,000-pound example, 
if mercury was present at 0.9% then that same 9 pounds would be below 
the mercury reporting threshold. However, such quantities may become 
reportable, in aggregate, if a reporting entity receives multiple 
shipments (including from multiple suppliers) of a given product in a 
year and performs a threshold activity in excess of the TRI reporting 
threshold. Further, TRI supplier notification regulations do not 
require a person to consider the total quantity of the chemical being 
supplied but rather require the person to consider the concentration of 
the chemical in the product or mixture. Including a consideration of 
quantity rather than concentration shipped would complicate as well as 
reduce the ability of supplier notifications to inform downstream 
recipients of products and mixtures containing a TRI-listed chemical.
    EPA considered whether to include a small quantity exemption in 
lieu of a de minimis exemption for supplier notification. However, EPA 
is concerned that such an exemption would not provide adequate 
information to facilities receiving multiple shipments over the course 
of a year to address TRI reporting requirements that may apply to them, 
based on the total aggregated quantity received. Without such 
information on the TRI-listed chemical, the receiving facility may not 
have sufficient data to inform potential TRI reporting obligations.
    Many PFAS are used in products below the established de minimis 
levels (Refs. 4 and 10) which results in users of those products not 
knowing they are receiving a product that contains a TRI-reportable 
PFAS. PFAS reports received for the TRI 2020 and 2021 reporting years 
were mostly from manufacturers and waste disposal facilities which 
suggests that the de minimis exemption may have been used by most users 
and processors see https://www.epa.gov/toxics-release-inventory-tri-program/find-understand-and-use-tri. EPA has concluded that it is 
important and necessary to eliminate the supplier notification de 
minimis exemption for PFAS added to the TRI list pursuant to sections 
7321(b) and 7321(c) of the NDAA because if that exemption were to 
remain in place the Agency may fail to collect information on amounts 
of PFAS that significantly exceed the reporting threshold.
    In addition, eliminating the use of the de minimis exemption for 
supplier notification purposes for all other chemicals of special 
concern ensures that potentially significant quantities of such 
chemicals are not overlooked by reporting facilities. The PBT chemicals 
and chemical categories that are classified as chemicals of special 
concern, and are thus also impacted by this change, are as follows:
     Aldrin (CASRN: 309-00-2);
     Benzo[g,h,i]perylene (CASRN: 191-24-2);
     Chlordane (CASRN: 57-74-9);
     Dioxin and dioxin-like compounds category (manufacturing; 
and the processing or otherwise use of dioxin and dioxin-like compounds 
category if the dioxin and dioxin-like compounds are present as 
contaminants in a chemical and if they were created during the 
manufacturing of that chemical) (TRI Category Code: N150);
     Heptachlor (CASRN: 76-44-8);
     Hexabromocyclododecane category (TRI Category Code: N270);
     Hexachlorobenzene (CASRN: 118-74-1);
     Isodrin (CASRN: 465-73-6);
     Lead (this lower threshold does not apply to lead when it 
is contained in stainless steel, brass or bronze alloy; (CASRN: 7439-
92-1);
     Lead compounds category (TRI Category Code: N420);
     Mercury (CASRN: 7439-97-6);
     Mercury compounds category (TRI Category Code: N458);
     Methoxychlor (CASRN: 72-43-5);
     Octachlorostyrene (CASRN: 29082-74-4);
     Pendimethalin (CASRN: 40487-42-1);
     Pentachlorobenzene (CASRN: 608-93-5);
     Polychlorinated biphenyls (CASRN: 1336-36-3);
     Polycyclic aromatic compounds category (PACs) (TRI 
Category Code: N590);
     Tetrabromobisphenol A (CASRN: 79-94-7);
     Toxaphene (CASRN: 8001-35-2); and
     Trifluralin (CASRN: 1582-09-8).
    When EPA established the chemicals of special concern list, it 
decided to not remove the de minimis exemption eligibility from 
supplier notification requirements, indicating that the Agency believed 
that there was sufficient information available on PBT chemicals by 
suppliers. (Refs. 7 and 8). However, EPA has determined that there are 
situations where this

[[Page 74365]]

information is not available. For example, the Agency has found that 
there is significant variability in the concentration of PACs in fuels, 
yet the presence and concentration of PACs in fuel oil is often not 
provided in supplier notifications or SDSs. Additionally, EPA is aware 
of metal mixtures and products containing low concentrations of lead 
(not contained in stainless steel, brass or bronze alloys) whose 
supplier notifications and SDSs do not state there is lead present in 
the mixture or product. Further, it is unclear whether downstream 
purchasers would be made aware of PBT chemicals contained in many 
products without notification of the presence of such chemicals.
    In situations where such information is already available, supplier 
notifications may already be addressed (e.g., if such information in 
already included on an SDS) or the burden of a supplier to provide such 
information is minimal (i.e., if the information is redundant then the 
burden to provide such known information should be trivial). However, 
as noted in Unit IV., the quantity information EPA is requiring for de 
minimis concentrations below the concentration threshold may not be 
provided in SDSs. OSHA maintains a 1% concentration threshold for 
reporting the presence and concentration of most hazardous chemicals on 
SDSs (29 CFR part 1910, subpart Z). For chronic hazards (with 
Carcinogenicity, Germ Cell Mutagenicity, and Reproductive Toxicity), 
OSHA has established a 0.1% concentration threshold for reporting the 
presence and concentration of chemicals on SDSs (29 CFR part 1910, 
subpart Z). EPA notes that there may be other reasons for a chemical's 
exclusion from an SDS (e.g., a chemical may be in an article that is 
not covered by SDS requirements but is subject to TRI supplier 
notification requirements). As described in section 4.3 of the EA (Ref. 
1) for this final rule, EPA believes that any potential increase in new 
supplier reporting is minimal, particularly regarding non-PFAS 
chemicals of special concern.
    In the 1999 proposal to establish a chemical of special concern 
list, EPA also reasoned that entities subject to TRI supplier 
notification requirements could retain use of the de minimis exemption 
for PBTs because ``[m]any of the chemicals identified as persistent and 
bioaccumulative in today's action are not imported, processed, or 
otherwise used but are manufactured as byproducts'' (Ref. 8). However, 
the Agency has since learned that several PBT chemicals are not 
manufactured as byproducts, and those chemicals are known to be 
processed for distribution to customers. For example, in Reporting Year 
2021, the Agency received 55 Forms R for tetrabromobisphenol A (TBBPA). 
None of those forms indicated that TBBPA had been manufactured as a 
byproduct. However, some forms indicated the TBBPA is processed, 
including as an article component. Similarly, for Reporting Year 2021, 
the Agency received 76 Forms R on polychlorinated biphenyls (PCBs); 64 
of those forms did not indicate those PCBs had been manufactured as 
byproducts, though some forms indicated the PCBs had been processed, 
including as an article component. Because many PBT chemicals are not 
manufactured as byproducts and may exist in relatively lower 
concentrations within products or mixtures, the Agency's initial 
rationale to allow suppliers to exempt concentrations of PBT chemicals 
below de minimis from supplier notification requirements warrants 
reconsideration. Therefore, EPA has reassessed this exemption and 
modified it appropriately to provide TRI facilities that receive 
products or mixtures containing chemicals of special concern with 
additional information related to quantities of chemicals of special 
concern that may contribute to their reporting thresholds. EPA created 
the de minimis exemption pursuant to the authority provided in EPCRA 
section 328 (42 U.S.C. 11048) and is adjusting the scope of the 
exemption under that same authority. EPCRA section 328 provides that 
EPA has authority to promulgate regulations as may be necessary to 
carry out this chapter. EPA has concluded that it is important and 
necessary to eliminate the supplier notification de minimis exemption 
for all chemicals of special concern because if that exemption were to 
remain in place the Agency may fail to collect information on amounts 
of such chemicals that significantly exceed the reporting threshold.
    This action reflects EPA's current understanding of chemical 
activities involving all chemicals of special concern (i.e., both PBTs 
and PFAS).

C. Impact of Listing Certain PFAS on the Chemicals of Special Concern 
List

    This action revises the regulatory text to add PFAS currently on 
TRI pursuant to 7321(b) and 7321(c) of the NDAA to the list of 
chemicals of special concern. Additionally, the regulatory text, as 
revised by this action, provides that all PFAS added to TRI pursuant to 
sections 7321(b) and 7321(c), regardless of the date of their addition, 
are included on the chemicals of special concern list. Thus, as PFAS 
continue to be added to TRI pursuant to sections 7321(b) and 7321(c), 
they will also be added to the list of chemicals of special concern as 
of the date they are added to the TRI. It is likely that some of the 
substances meeting the criteria in 7321(b) and 7321(c) will be subject 
to confidential business information claims. For substances subject to 
such claims, the Agency must follow the process outlined in section 
7321(e) of the NDAA.
    As with PFAS currently on the TRI list, future PFAS added to the 
TRI list under 7321(b) and 7321(c) will have a 100-pound reporting 
threshold, per sections 7321(b)(2)(A) and 7321(c)(2)(B). Congress' use 
of this low reporting threshold demonstrates a concern for even 
relatively small quantities of these PFAS. Therefore, EPA has concluded 
that it is appropriate for all PFAS added to the TRI list under these 
provisions to be added to the chemicals of special concern list upon 
listing. If these PFAS were not added to the chemicals of special 
concern list at the time of their addition to the TRI list, there would 
be a delay in the reporting requirements while EPA conducts a 
rulemaking simply to add them to the chemicals of special concern list. 
This would result in differences in how previously listed PFAS and 
newly listed PFAS are treated even though they were automatically 
listed with the same reporting thresholds. The chemicals of special 
concern designation is a regulatory construct and here, EPA has 
determined it is appropriate to designate all PFAS added to TRI 
pursuant to 7321(b) and 7321(c) as chemicals of special concern due to 
Congress' use of the 100-pound reporting threshold, indicating a 
concern for even relatively small quantities of PFAS, and PFAS' 
persistence in the environment and growing evidence showing potential 
adverse human health effects (Refs. 2, 3, and 9). Further, this 
regulatory change will provide additional data that will help the 
Agency to better understand the extent of potential impacts caused by 
these PFAS. Given that the NDAA set a 100-pound reporting threshold for 
all PFAS added pursuant to sections 7321(b) and 7321(c), EPA has 
determined that additional rulemakings to designate these chemicals as 
chemicals of special concern are unnecessary because the rationale for 
any future rulemakings would remain the same and would result in a 
delay of reporting requirements. EPA has finalized regulatory text that 
adds those PFAS added pursuant to 7321(b) and 7321(c) to the chemicals 
of special

[[Page 74366]]

concern list upon their addition to the TRI list.
    EPA has decided not to provide a structural definition (e.g., OECD) 
of PFAS as part of this action, because doing so is outside the scope 
of this rulemaking. This rulemaking only concerns chemical substances 
added to the TRI by sections 7321(b) and 7321(c) of the NDAA, neither 
of which require EPA to provide a definition of PFAS. Section 7321(b) 
added by name and/or CASRN specific PFAS to the TRI list and sections 
7321(b) and (c) identify EPA activities involving PFAS that would cause 
a PFAS to be added to the TRI list. The activities described by 
sections 7321(b) and (c) indicate whether they pertain to a PFAS, and 
thus a separate determination of whether or not the covered activity 
involves a PFAS is not necessary. EPA is therefore not providing a 
definition of PFAS for purposes of this rulemaking, and issues relating 
to the definition of PFAS are outside the scope of this rulemaking. EPA 
will consider the need for a PFAS definition for a purpose other than 
the NDAA section 7321(b) and (c) listings, should the need for such a 
definition arise. As indicated in the proposal for this rulemaking, EPA 
acknowledges there is another rulemaking underway to list PFAS 
additions for NDAA 7321(d), and the Agency expects that rulemaking to 
clarify the status of those listed PFAS as chemicals of special 
concern.

V. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not itself physically located in the 
docket. For assistance in locating these other documents, please 
consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. USEPA. Economic Analysis for the Changes to TRI Reporting for 
PFAS. October 2023.
2. USEPA. Our Current Understanding of the Human Health and 
Environmental Risks of PFAS. U.S. Environmental Protection Agency, 
Washington, DC. https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas.
3. ATSDR. Agency for Toxic Substances and Disease Registry. 
Toxicological Profile for Perfluoroalkyls. May 2021. https://www.atsdr.cdc.gov/toxprofiles/tp200.pdf.
4. ATSDR. Agency for Toxic Substances and Disease Registry. Per- and 
Polyfluoroalkyl Substances (PFAS) and Your Health. PFAS in the U.S. 
Population. https://www.atsdr.cdc.gov/pfas/health-effects/us-population.html.
5. Centers for Disease Control and Prevention, U.S. Department of 
Health and Human Services. National Report on Human Exposure to 
Environmental Chemicals. Updated March 2022. Accessed [insert date]. 
https://www.cdc.gov/exposurereport/.
6. USEPA. Response to Comment document. October 2023.
7. USEPA. Final Rule: Persistent Bioaccumulative Toxic (PBT) 
Chemicals; Lowering of Reporting Thresholds for Certain PBT 
Chemicals; Addition of Certain PBT Chemicals; Community Right-to-
Know Toxic Chemical Reporting. Federal Register. 64 FR 58666, 
October 29, 1999 (FRL-6389-11).
8. USEPA. Proposed Rule: Persistent Bioaccumulative Toxic (PBT) 
Chemicals; Lowering of Reporting Thresholds for Certain PBT 
Chemicals; Addition of Certain PBT Chemicals; Community Right-to-
Know Toxic Chemical Reporting. Federal Register. 64 FR 688, January 
5, 1999 (FRL-6389-11).
9. National Institute of Environmental Health Sciences. 
Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS). https://www.niehs.nih.gov/health/topics/agents/pfc/index.cfm.
10. Kotthoff, et al. 2015. Perfluoroalkyl and polyfluoroalkyl 
substances in consumer products. Environmental Science and Pollution 
Research 22:14546-14559.
11. USEPA. Toxics Release Inventory Form A. https://ordspub.epa.gov/ords/guideme_ext/guideme_ext/guideme/file/ry_2021_form_a.pdf.
12. USEPA. Supporting Statement for an Information Collection 
Request (ICR) ``Rule-Related Amendment; Changes to Reporting 
Requirements for Per- and Polyfluoroalkyl Substances; Community 
Right-to-Know Toxic Chemical Release Reporting; Final Rule (RIN 
2070-AK97).'' EPA ICR No.2724.02; OMB Control No. 2070-0225. July 
2023.

VI. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is a ``significant regulatory action'' as defined in 
Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by 
Executive Order 14094 (88 FR 21879, April 11, 2023). Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
Executive Order 12866 review. Documentation of any changes made in 
response to the Executive Order 12866 review is available in the 
docket. EPA prepared an economic analysis of the potential impacts 
associated with this action. This analysis, ``Economic Analysis for the 
Changes to TRI Reporting for PFAS'' (Ref. 1) is also available in the 
docket and summarized in Unit E.1.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rule will be 
submitted to OMB for approval under the PRA, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document that EPA prepared has 
been assigned EPA ICR No. 2724.02 and the OMB Control No. 2070-0225. 
You can find a copy of the ICR in the docket for this rule, and it is 
briefly summarized here (Ref. 12). The information collection 
requirements are not enforceable until OMB approves them.
    Currently, the facilities subject to the reporting requirements 
under EPCRA section 313 and PPA section 6607 may use either EPA Toxic 
Chemicals Release Inventory Form R (EPA Form 1B9350-1), or EPA Toxic 
Chemicals Release Inventory Form A (EPA Form 1B9350-2). The Form R must 
be completed if a facility manufactures, processes, or otherwise uses 
any listed chemical above threshold quantities and meets certain other 
criteria. For the Form A, EPA established an alternative threshold for 
facilities with low annual reportable amounts of a listed toxic 
chemical. A facility that meets the appropriate reporting thresholds, 
but estimates that the total annual reportable amount of the chemical 
does not exceed 500 pounds per year, can take advantage of an 
alternative manufacture, process, or otherwise use threshold of 1 
million pounds per year of the chemical, provided that certain 
conditions are met, and submit the Form A instead of the Form R. In 
addition, respondents may designate the specific chemical identity of a 
substance as a trade secret pursuant to EPCRA section 322 (42 U.S.C. 
11042) and 40 CFR part 350. OMB has approved the reporting and 
recordkeeping requirements related to Forms A and R, supplier 
notification, and petitions under OMB Control number 2070-0212 (EPA ICR 
No. 2613.04) and those related to trade secret designations under OMB 
Control 2050-0078 (EPA ICR No. 1428.12). As such, this ICR is intended 
to amend the existing ICR to include the following additional details:
     Respondents/affected entities: Facilities covered under 
EPCRA section 313 that manufacture, process or otherwise use listed 
PFAS (See Unit I.A.).

[[Page 74367]]

     Respondent's obligation to respond: Mandatory (EPCRA 
section 313).
     Frequency of response: Annual.
     Total estimated number of respondents: 623 to 2,015.
     Total estimated burden: 43,843 and 111,768 burden hours in 
the first year and approximately 22,244 and 71,946 burden hours in the 
steady state. Burden is defined at 5 CFR 1320.3(b).
     Total estimated cost: Approximately $3,318,492 and 
$10,733,149 in the first year of reporting and approximately $1,580,214 
and $5,111,044 in the steady state (per year) includes $0 annualized 
capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB 
approves this ICR, the Agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA, 5 
U.S.C. 601 et seq. The small entities subject to the requirements of 
this action are primarily classified within the manufacturing and waste 
management industry sectors. The Agency has determined that of the 623 
to 2,015 entities estimated to be impacted by this action, 486 to 1,333 
are small businesses; no small governments or small organizations are 
expected to be affected by this action. The average cost per small firm 
is $7,413 (at a 3% discount rate) or $7,520 (at a 7% discount rate). 
All small businesses affected by this action are estimated to incur 
annualized cost impacts of less than 1%. Even under a worst-case 
scenario comparing compliance costs to average revenue of firms with 
between 10 (smallest number required to report) and 14 employees 
instead of comparing compliance costs to the weighted average revenue 
of small firms, there are still no costs that exceed the 1% impact 
threshold. Thus, this action is not expected to have a significant 
adverse economic impact on a substantial number of small entities. A 
more detailed analysis of the impacts on small entities is provided in 
EPA's economic analysis (Ref. 1).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector. EPA did not identify any small governments that would 
be impacted by this action. EPA's economic analysis indicates that the 
total cost of this action is estimated to be from $3,318,492 and 
$10,733,149 in the first year of reporting and from $1,580,214 and 
$5,111,044 in subsequent reporting years (Ref. 1).

E. Executive Order 13132: Federalism

    This action does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999), because it will 
not have substantial direct effects on states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000) because it will 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes. It does not have substantial direct 
effects on tribal government because this action relates to toxic 
chemical reporting under EPCRA section 313, which primarily affects 
private sector facilities. Thus, Executive Order 13175 does not apply 
to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to regulatory actions considered significant under 
section 3(f)(1) of Executive Order 12866 and that concern environmental 
health or safety risks that EPA has reason to believe may 
disproportionately affect children, per the definition of ``covered 
regulatory action'' in section 2-202 of Executive Order 13045.
    Although this action does not concern an environmental health or 
safety risk, the data collected as a result of this action will provide 
information about releases to the environment that could be used to 
inform the public on potential exposures to toxic chemical releases, 
pursuant to the right-to-know principles. EPA also believes that the 
information obtained as a result of this action could be used by 
government agencies, researchers, and others to identify potential 
problems, set priorities, and take appropriate steps to reduce any 
potential exposures and related human health or environmental risks 
identified as a result of increased knowledge of exposures to PFAS.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not 
likely to have a significant adverse effect on the supply, distribution 
or use of energy and has not otherwise been designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards under the NTTAA 
section 12(d), 15 U.S.C. 272.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and; 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    EPA finds that it is not practicable to perform an environmental 
justice analysis because it lacks data on the exact locations of every 
exposure source. EPA was unable to perform an environmental justice 
analysis because it lacks data on the exact location of every exposure 
source based on reporting activity. The purpose of this action is to 
require reporting activity.
    However, this regulatory action makes changes to the reporting 
requirements for PFAS that will result in more information being 
collected and provided to better evaluate exposures and the risks posed 
by such exposures. The determination of potential risk to human health 
and/or the environment depends upon many factors, including the 
toxicity of the chemical, the fate of the chemical in the environment, 
and the amount and duration of human or other exposure to the chemical. 
This action does not directly address human health or environmental 
risks. However,

[[Page 74368]]

the action will increase the level of information available to assess 
environmental protection for all affected populations without having 
any disproportionate and adverse human health or environmental effects 
on any population, including any community with environmental justice 
concerns. Specifically, changes to the reporting requirements for PFAS 
will provide more information on releases and waste management of PFAS. 
By requiring reporting of this additional information, EPA will be 
providing communities across the U.S. (including communities with 
environmental justice concerns) with access to data which they may use 
to seek lower exposures and consequently reductions in chemical risks 
for themselves and their children. This information can also be used by 
government agencies and others to identify potential problems, set 
priorities, and take appropriate steps to reduce any potential risks to 
human health and the environment. Therefore, informational benefits, of 
the action, including behavioral changes such as consumers avoiding 
specific products, may have positive impact on the human health and 
environmental impacts on all communities, including communities with 
environmental justice concerns.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and 
recordkeeping requirements, and Toxic chemicals.

    Dated: October 18, 2023.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.

    Therefore, for the reasons stated in the preamble, EPA is amending 
40 CFR chapter I as follows:

PART 372--TOXIC CHEMICAL RELEASE REPORTING: COMMUNITY RIGHT-TO-KNOW

0
1. The authority citation for part 372 continues to read as follows:

    Authority:  42 U.S.C. 11023 and 11048.


Sec.  372.22  [Amended]

0
2. Amend Sec.  372.22(c) by removing ``Sec.  372.25, Sec.  372.27, 
Sec.  372.28, or Sec.  372.29'' and adding in its place ``Sec. Sec.  
372.25, 372.27, or 372.28''.


Sec.  372.25  [Amended]

0
3. Amend Sec.  372.25 by:
0
a. In the introductory text, remove ``Except as provided in Sec.  
372.27, Sec.  372.28, and Sec.  372.29'' and add in its place ``Except 
as provided in Sec. Sec.  372.27 and 372.28''; and
0
b. In paragraphs (f), (g), and (h), remove ``Sec.  372.27, Sec.  
372.28, or Sec.  372.29'' and add in its place ``Sec. Sec.  372.27 or 
372.28''.

0
4. In Sec.  372.28, amend table 1 to paragraph (a)(1) by adding the 
entry ``Per- and polyfluoroalkyl substances'' alphabetically to read as 
follows:


Sec.  372.28  Lower thresholds for chemicals of special concern.

* * * * *
    (a) * * *
    (1) * * *

                       Table 1 to Paragraph (a)(1)
------------------------------------------------------------------------
                                                             Reporting
           Chemical name                   CAS No.         threshold (in
                                                              pounds)
------------------------------------------------------------------------
 
                              * * * * * * *
Per- and polyfluoroalkyl substances  see Sec.                        100
 (Individually listed per- and        372.65(d) and (e).
 polyfluoroalkyl substances added
 by 15 U.S.C. 8921(b)(1) and
 (c)(1)). (EPA periodically updates
 the lists of covered chemicals at
 Sec.   372.65(d) and (e) to
 reflect chemicals that have been
 added by 15 U.S.C. 8921).
 
                              * * * * * * *
------------------------------------------------------------------------

Sec.  372.29  [Removed]

0
5. Remove Sec.  372.29.


Sec.  372.30  [Amended]

0
6. Amend Sec.  372.30 by:
0
a. In paragraph (a), remove ``in Sec.  372.25, Sec.  372.27, Sec.  
372.28, or Sec.  372.29 at'' and add in its place ``in Sec. Sec.  
372.25, 372.27, or 372.28 at''; and
0
b. In paragraphs (b)(1), (b)(3) introductory text, (b)(3)(i), and 
(b)(3)(iv), remove ``Sec.  372.25, Sec.  372.27, Sec.  372.28, or Sec.  
372.29'' and add in its place ``Sec. Sec.  372.25, 372.27, or 372.28''.


Sec.  372.38  [Amended]

0
7. Amend Sec.  372.38 by:
0
a. In paragraph (a)(2), remove ``except for purposes of Sec.  
372.45(d)(1)''; and
0
b. In paragraphs (b), (c), (d), (f), (g) and (h), remove ``Sec.  
372.25, Sec.  372.27, Sec.  372.28, or Sec.  372.29'' and add in its 
place ``Sec. Sec.  372.25, 372.27, or 372.28''.

0
8. Amend Sec.  372.45, by revising paragraph (d)(1) to read as follows:


Sec.  372.45  Notification about toxic chemicals.

* * * * *
    (d) * * *
    (1) If a mixture or trade name product contains no toxic chemical 
in excess of the applicable de minimis concentration as specified in 
Sec.  372.38(a), except for chemicals listed in Sec.  372.28(a), which 
are excluded from the de minimis exemption.
* * * * *
[FR Doc. 2023-23413 Filed 10-30-23; 8:45 am]
BILLING CODE 6560-50-P


