SUPPLEMENTARY INFORMATION: ( printed page 37355)

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 any of the PFAS listed in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document 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*, 211130*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191, 511199, 512230*, 512250*, 519130*, 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): 212111, 212112, 212113 (corresponds to SIC code 12, Coal Mining (except 1241)); or 212221, 212222, 212230, 212299 (corresponds to SIC code 10, Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 221118, 221121, 221122, 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, 425110, 425120 (limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); 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).
• Federal facilities.

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 would be 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 Executive Order 13834 ( https://www.govinfo.gov/​content/​pkg/​FR-2018-05-22/​pdf/​2018-11101.pdf) as explained in the Implementing Instructions from the Council on Environmental Quality ( https://www.sustainability.gov/​pdfs/​eo13834_​instructions.pdf). 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 172 PFAS to the EPCRA section 313 list of toxic chemicals (more commonly known as the Toxics Release Inventory (TRI)). EPA is also setting a manufacture, processing, and otherwise use reporting threshold of 100 pounds for each PFAS being added to the list.

II. Background

On December 20, 2019 the National Defense Authorization Act for Fiscal Year 2020 (NDAA) was signed into law (Pub. L. 116-92, https://www.congress.gov/​public-laws/​116th-congress). Among other provisions, section 7321 of the NDAA adds certain PFAS to the EPCRA section 313 list of reportable toxic chemicals as of January 1, 2020. Specifically, the NDAA identifies 14 chemicals by name and/or Chemical Abstract Service Registry Number (CASRN) in section 7321(b) and identifies additional PFAS or class of PFAS that must be added based on the following criteria:

• It is listed as an active chemical substance in the February 2019 update to the inventory under TSCA section 8(b)(1) (15 U.S.C. 2607(b)(1)); and
• On the date of enactment of the NDAA, is subject to the provisions of40 CFR 721.9582 or 40 CFR 721.10536.

EPA has reviewed the above-listed criteria and found 170 chemicals that meet the requirements of this part of the NDAA and whose identity is not confidential business information (CBI). Twelve of these are among the 14 PFAS specifically listed in the NDAA; with the addition of the other two, there are a total of 172 PFAS subject to this law whose identity is not CBI. Under section 7321 of the NDAA, EPA must review CBI claims before adding any PFAS to the list whose identity is subject to a claim of protection from disclosure under 5 U.S.C. 552(a). Under the NDAA EPA must:

• Review a claim of protection from disclosure; and
• Require that person to reassert and substantiate or resubstantiate that claim in accordance with TSCA section 14(f) (15 U.S.C. 2613(f)).

In addition, if EPA determines that the chemical identity of a PFAS or class PFAS qualifies for protection from disclosure, EPA must include the PFAS or class of PFAS, on the toxics release inventory in a manner that does not disclose the protected information.

The names and CASRNs for some of the chemicals listed under 40 CFR 721.9582 and/or 40 CFR 721.10536 are subject to a claim of protection from disclosure. Therefore, the chemicals that are subject to a claim of protection from disclosure will not be added to the EPCRA section 313 toxic chemical list until EPA completes the process provided by section 7321(e) of the NDAA. Updates regarding this process will be provided via the Addition of Certain PFAS to the TRI by the National Defense Authorization Act web page: https://www.epa.gov/​toxics-release-inventory-tri-program/​addition-certain-pfas-tri-national-defense-authorization-act. Therefore, 172 PFAS will be added at this time. Note that not every substance subject to §§ 721.9582 and 721.10536 was added to the TRI chemical list, only those substances that met the listing criteria in the NDAA.

As established by the NDAA, the addition of these PFAS is to be effective January 1 of the calendar year following the date of enactment of the NDAA. Accordingly, these 172 non-CBI PFAS are reportable for the 2020 reporting year ( i.e., reports due July 1, 2021). EPA is issuing this final rule revising the EPCRA section 313 list of reportable chemicals in 40 CFR 372.65 to include the 172 non-CBI PFAS added by the NDAA to the EPCRA section 313 list of reportable chemicals in 40 CFR 372.65. In addition, the NDAA established a manufacture, processing, and otherwise use reporting threshold of 100 pounds for each of the listed PFAS chemicals listed under the NDAA. The NDAA also requires that no later than 5 years from the date of enactment of the NDAA that EPA must:

• Determine whether revision of the threshold is warranted; and
• If EPA determines a revision to the threshold is warranted, initiate a revision under EPCRA section 313(f)(2) (42 U.S.C. 11023(f)(2)).

Therefore, EPA is amending the regulatory text by adding the 172 PFAS to 40 CFR 372.65 with reporting thresholds of 100 pounds identified in 40 CFR 372.29. ( printed page 37356)

III. Good Cause Exception

Under 5 U.S.C. 553(b)(3)(A), the notice-and-comment requirements of the Federal Administrative Procedure Act (5 U.S.C. 551-706) do not apply where the Agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Because this action is being taken to comply with an Act of Congress where Congress added these chemicals to the TRI and lowered the reporting thresholds for these chemicals, and thus EPA has no discretion as to the outcome of this rule, EPA hereby finds that notice and comment on this action are unnecessary. The action merely fulfills a mandate from Congress by aligning the CFR with the self-effectuating changes provided by the NDAA. This action is effective immediately upon publication in the Federal Register . Under 5 U.S.C. 553(d)(3), 30-day advance notice of a rule is not required where the Agency provides otherwise for good cause. EPA finds that good cause for an immediate effective date exists in this case because, as explained above, this rule merely amends the regulations in 40 CFR part 372 to reflect the action taken by Congress.

IV. Statutory and Executive Order Reviews

Additional information about these statutes and Executive orders can be found at http://www2.epa.gov/​laws-regulations/​laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is not a regulatory action under Executive Order 13771 (82 FR 9339, February 3, 2017) because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

The Office of Management and Budget (OMB) has approved the information collection activities contained in this rule under the PRA, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2070-0212. This was an emergency ICR since the collection of this information was mandated by an act of Congress effective 1/1/2020. EPA will follow up this emergency ICR with a revision to the existing ICR that covers reporting under EPCRA section 313. You can find a copy of the emergency ICR in the docket for this rule, estimated impacts are presented here.

Respondents/affected entities: Facilities that submit annual reports under section 313 of EPCRA and section 6607 of PPA.

Respondent's obligation to respond: Mandatory (EPCRA section 313).

Estimated number of respondents: 500.

Frequency of response: Annual.

Total estimated burden: 17,852 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $1 million (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.

D. Regulatory Flexibility Act (RFA)

This rule is not subject to the RFA, 5 U.S.C. 601 et seq., which generally requires an agency to prepare a regulatory flexibility analysis for any rule that is estimated to have a significant economic impact on a substantial number of small entities. This rule is not subject to notice and comment requirements under the APA or any other statute because although the rule is subject to the APA, the Agency has invoked the “good cause” exemption under 5 U.S.C. 553(b) (see Unit III.).

E. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action will impose no enforceable duty on any state, local or tribal governments or the private sector.

F. Executive Order 13132: Federalism

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the 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.

G. 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). This rule will not impose substantial direct compliance costs on Indian Tribal Governments. Thus, Executive Order 13175 does not apply to this action.

H. 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 those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of Executive Order 13045 has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards that would require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272 note.

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994), because it does not establish an environmental health or safety standard. This action involves additions to reporting requirements that will not affect the level of protection provided to human health or the environment.

V. Congressional Review Act (CRA)

This action is subject to the CRA, 5 U.S.C. 801 et seq., and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule ( printed page 37357) effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice-and-comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Unit III., including the basis for that finding. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR part 372 is amended as follows:

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

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

2. Amend § 372.22(c) by removing the text “§ 372.25, § 372.27, or § 372.28” and adding in its place “§ 372.25, § 372.27, § 372.28, or § 372.29”.

3. Amend § 372.25 as follows:

a. In the introductory text, remove the text “Except as provided in §§ 372.27 and 372.28” and add in its place “Except as provided in § 372.27, § 372.28, and § 372.29”.

b. In paragraphs (f), (g), and (h), remove the text “§ 372.25, § 372.27, or § 372.28” add in its place “this section or § 372.27, § 372.28, or § 372.29”.

4. Add § 372.29 to subpart B to read as follows:

5. Amend § 372.30 as follows:

a. In paragraph (a), remove the text “in § 372.25, § 372.27, or § 372.28” and add in its place “in § 372.25, § 372.27, § 372.28, or § 372.29”.

b. In paragraphs (b)(1), (b)(3) introductory text, and (b)(3)(i) and (iv), remove the text “§ 372.25, § 372.27, or § 372.28” and add in its place “§ 372.25, § 372.27, § 372.28, or § 372.29.”

6. Amend § 372.38(b), (c), (d), (f), (g), and (h) by removing the text “§ 372.25, § 372.27, or § 372.28” and adding in its place “§ 372.25, § 372.27, § 372.28, or § 372.29.”

7. Amend § 372.65 as follows:

a. By revising the introductory text; and

b. By adding paragraphs (d) and (e).

The revision and additions read as follows: