[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Rules and Regulations]
[Pages 74360-74368]
[FR Doc No: 2023-23413]

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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:<PHONE_NUMBER>; 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<PHONE_NUMBER> 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

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

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

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

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

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

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.).

     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,

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


[Federal Register Volume 86, Number 214 (Tuesday, November 9, 2021)]
[Notices]
[Pages 62224-62229]
[FR Doc No: 2021-24414]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93512; File No. SR-ICEEU-2021-021]

Self-Regulatory Organizations; ICE Clear Europe Limited; Notice
of Filing and Immediate Effectiveness of Proposed Rule Change Relating
to Amendments to the ICE Clear Europe Clearing Rules

November 3, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on October 20, 2021, ICE Clear Europe Limited (``ICE Clear Europe'' or
the ``Clearing House'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule changes described in
Items I, II and III below, which Items have been prepared primarily by
ICE Clear Europe. ICE Clear Europe filed the proposed rule change
pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(4)
thereunder,\4\ such that the proposed rule change was immediately
effective upon filing with the Commission. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(4).
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I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change

    (a) The principal purpose of the proposed amendments is for ICE
Clear Europe to add a new Part 24 to the ICE

Clear Europe Clearing Rules (the ``Rules'') which would set out certain
procedures relating to LIBOR transition for affected interest rate
futures and option contracts cleared by the Clearing House (such Part
24, the ``LIBOR Transition Rules''). The LIBOR Transition Rules would
address certain matters occurring in advance of the transition of
Sterling and Swiss Franc LIBOR to other replacement rates, with impacts
on the existing ICE Futures Europe Three Month Sterling LIBOR
Contracts, Three Month EuroSwiss Contracts and Options on Three Month
Sterling LIBOR Contracts.\5\
---------------------------------------------------------------------------

    \5\ Capitalized terms used but not defined herein have the
meanings specified in the Rules.
---------------------------------------------------------------------------

II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change

    In its filing with the Commission, ICE Clear Europe included
statements concerning the purpose of and basis for the proposed rule
change and discussed any comments it received on the proposed rule
change. The text of these statements may be examined at the places
specified in Item IV below. ICE Clear Europe has prepared summaries,
set forth in sections (A), (B), and (C) below, of the most significant
aspects of such statements.

(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change

(a) Purpose
    ICE Clear Europe is proposing to adopt the LIBOR Transition Rules
in advance of the expected transition of Sterling and Swiss Franc LIBOR
rates, which are currently referenced in certain ICE Futures Europe
interest rate futures and option contracts cleared by the Clearing
House, to other replacement rates. As has been widely publicized, the
UK Financial Conduct Authority (the ``FCA'') in July 2017 announced
that it would no longer compel LIBOR panel banks to make LIBOR
submissions after December 31, 2021. Since July 2017, the FCA, other
regulators in various jurisdictions, industry groups and market
participants have worked to develop and adopt various risk-free rates
as alternatives to LIBOR, including the Sterling Over Night Index
Average, or ``SONIA,'' for Sterling, and the Swiss Average Rate
Overnight, or ``SARON,'' for Swiss Francs. In the derivative markets,
industry groups and market participants have generally concluded that
LIBOR-based contracts should be converted into contracts referencing a
new risk-free rate, with a fallback spread adjustment reflecting the
deemed difference in value between the relevant LIBOR rate and the
replacement risk free rate. On March 5, 2021, following further
consultations, the FCA announced the cessation dates for all LIBOR
panels, which will be December 31, 2021 for the Sterling and Swiss
Franc LIBORs underlying the relevant ICE Futures Europe interest rate
futures and options. In the wake of that announcement, industry groups
have established the fallback spreads expected to be used for
transitioning derivatives contracts referencing such rates, which have
been widely disseminated.\6\ In light of these developments, the
Clearing House has determined to transition the Three Month Sterling
LIBOR Contracts, Three Month EuroSwiss Contracts and Options on Three
Month Sterling LIBOR Contracts to replacement rates ahead of the
cessation dates for the Sterling and Swiss Franc LIBOR panels.
---------------------------------------------------------------------------

    \6\ See Bloomberg, IBOR Fallbacks (5 March 2021), available at
https://assets.bbhub.io/professional/sites/10/IBOR-Fallbacks-LIBOR-Cessation_Announcement_20210305.pdf.
---------------------------------------------------------------------------

    ICE Futures Europe has already launched trading of new futures and
option contracts referencing SONIA and SARON, which are already cleared
by ICE Clear Europe. Market participants may currently trade in such
contracts alongside contracts referencing LIBOR. Accordingly, it is
possible for market participants, on a voluntary basis, to close out of
positions in LIBOR-referencing contracts and enter into new positions
in SONIA or SARON-referencing contracts through market transactions
under ICE Futures Europe rules. ICE Clear Europe is proposing to adopt
new Part 24 of the Rules, which would provide for the mandatory
conversion or (in certain circumstances) cash settlement of any
remaining LIBOR-referencing contracts that have not been voluntarily
closed out as of a specified date in advance of the cessation of LIBOR
publication of the Sterling and Swiss Franc LIBOR panels, as discussed
in further detail herein.
    Specifically, the proposed amendments would provide, upon a defined
LIBOR Transition Time to be determined and communicated by Circular by
the Clearing House, for (i) the amendment and restatement of
Transitioning Three Month Sterling LIBOR Contracts into three-month
SONIA contracts, (ii) the amendment and restatement of Transitioning
Three Month EuroSwiss Contracts into three-month SARON contracts, and
(iii) the amendment and restatement of options on Transitioning Three
Month Sterling LIBOR Contracts into options on three-month SONIA
contracts.
LIBOR Transition Rules
    Rule 2401 would provide an introduction to the LIBOR Transition
Rules and a general description of the LIBOR Transition Rules and their
purpose. The introduction would clarify that the LIBOR Transition Rules
would prevail in the event of any conflict with the remainder of the
ICE Clear Europe Clearing Rules on matters to which the LIBOR
Transition Rules relate.
    Rule 2402 would provide the key additional definitions used in the
LIBOR Transition Rules, including ``LIBOR Settlement Time'' and ``LIBOR
Transition Time,'' ``Transitioning Three Month Sterling Contracts,''
``Transitioning Three Month Euro Swiss Contracts,'' ``SONIA
Contracts,'' ``SARON Contracts'', as discussed in further detail below.
    Rule 2403 would provide that nothing in the LIBOR Transition Rules
would prevent or restrict ICE Futures Europe or the Clearing House from
clarifying or providing guidance on the application of the LIBOR
Transition Rules or any related Circular.
LIBOR Settlement Time and LIBOR Transition Time
    As set out in Rule 2403, the Clearing House would designate and
communicate by Circular a LIBOR Settlement Time and LIBOR Transition
Time for purposes of the settlement and transition of the Three Month
Sterling LIBOR Contracts, Three Month EuroSwiss Contracts and Options
on Three Month Sterling LIBOR Contracts. The LIBOR Settlement Time will
be the time as of which the final pre-transition end-of-day settlement
will be calculated (as discussed below in connection with Rule 2404)
and will also be used to determine the contracts subject to transition.
Pursuant to Rule 2403(b), contracts that are still open at the LIBOR
Settlement Time but which are scheduled to expire on a later date will
be transitioned under the LIBOR Transition Rules; those contracts that
expire before the LIBOR Settlement Time will not be subject to the
LIBOR Transition Rules, since they will already have settled in
accordance with their existing terms. This wording would also exclude
from the LIBOR Transition any LIBOR Contacts that have been the subject
of a voluntary close out. The LIBOR Transition Time would be the time
as of which the amendment and restatement of remaining transitioning
contracts into SONIA Contracts, SARON Contracts or Options on SONIA
Contracts will occur. It is expected that

the LIBOR Transition Time and the LIBOR Settlement Time would both
occur after the market has closed on a business day and prior to market
opening the next business day. The Clearing House would be entitled to
delay either such time (or to unwind the LIBOR Transition) at any time
prior to the regular Margin call on the Business Day following the
scheduled LIBOR Transition Time. Any such delays would be communicated
to Clearing Members by Circular.
    Pursuant to proposed Rule 2403(c), Options referencing Three Month
Sterling LIBOR Contracts that expire prior to the LIBOR Settlement Time
would expire and be exercised or abandoned and settle in the ordinary
way, without being affected by the LIBOR Transition Rules. However,
where such Contracts would be exercised prior to the LIBOR Settlement
Time into Three Month Sterling LIBOR Contracts that expire after the
LIBOR Settlement Time, transition would occur under the LIBOR
Transition Rules for the resulting Three Month Sterling LIBOR
Contracts.
LIBOR Transition Settlement Prices
    Rule 2404 would describe the procedure for determining and using
LIBOR Transition Settlement Prices. Following the LIBOR Settlement
Time, the LIBOR Transition Settlement Prices would be used for
calculating the regular end of day Margin call in respect of any Set of
Three Month Sterling LIBOR Contracts, Three Month EuroSwiss Contracts
or Options on the Three Month Sterling LIBOR Contracts.
    Rule 2404 would also describe the manner in which the LIBOR
Transition Settlement Prices would be determined for each Set of Three
Month Sterling LIBOR Contracts, each Set of Three Month EuroSwiss
Contracts, and each Option on the Three Month Sterling LIBOR Contracts
of a particular Set. For the transitioning futures contracts, the LIBOR
Transition Settlement Price would be the applicable daily settlement
price for the corresponding SONIA or SARON contract, minus the
applicable fallback spread. For the transitioning option contracts, the
transition settlement price would be the settlement price of the
corresponding SONIA option contract for the same delivery month and
with a flex strike price equal to the strike price for the
transitioning LIBOR contract plus the applicable fallback spread.
    In addition, in relation to Options on the Three Month Sterling
LIBOR Contracts for which the corresponding Option on the SONIA
Contracts has a different expiry date, Rule 2404(c) would provide that
the Clearing House would direct that a one-off irreversible payment be
paid to the Clearing Member by the Clearing House or vice versa in
order to address the change in value resulting from the change in
expiry date.\7\ The amount of such payment would be calculated as at
the LIBOR Settlement Time by the Clearing House and included within the
next regular Margin call or payment following the LIBOR Transition
Time, unless otherwise directed by the Clearing House. Rule 2404
includes an acknowledgment that the methodology for calculating the
LIBOR Transition Settlement Prices (including the Three Month Sterling
LIBOR Spread and Three Month Swiss Franc LIBOR Spread) and the use of
such prices as the Exchange Delivery Settlement Price are matters of
which the market as a whole has had sufficient notice (in light of the
extensive market consultation and discussion around LIBOR transition
issues, including with respect to the fallback spread methodology and
calculation).
---------------------------------------------------------------------------

    \7\ The Clearing House may direct such a payment under its
existing powers pursuant to Rule 109(k) when changes to the contract
terms ``materially affects'' the Exchange Delivery Settlement Price,
as is considered to be the case in respect of this element of the
LIBOR Transition Rules.
---------------------------------------------------------------------------

Amendment and Restatement of Transition Three Month Sterling LIBOR
Contracts
    Rule 2405 would describe the process for the amendment and
restatement of Transitioning Three Month Sterling LIBOR Contracts into
SONIA Contracts. Because two lots of a Sterling LIBOR Contract will
convert into a single lot of a SONIA contract in order to deal with
differences in the sizes of lots under such contracts, Rule 2405(a)
would provide for rounding down of odd numbers of lots in the
conversion to the nearest even number of lots, with the remaining
portion to be excluded from the transition and terminated with cash
settlement in accordance with the Rule. A similar process to exclude,
terminate and cash settle transactions in lieu of transition would be
used as necessary to balance the number of buy and sell positions in
transitioning contracts following the rounding of odd lots as described
above.
    Rule 2405(b) would provide that, at the LIBOR Transition Time, in
respect of each Account of each Clearing Member, every two lots of a
Set of Transitioning Three Month Sterling LIBOR Contracts (which are
not otherwise excluded from the Sterling LIBOR Transition and
terminated and cash settled as discussed above) would be amended and
restated as a single lot of a SONIA Contract with an identical delivery
month. Such SONIA Contracts would be treated as being of the same Set
as any other SONIA Contracts of the same delivery month held by the
Clearing Member at the Transition Time, and if they are in the same
Account may be subject to netting pursuant to Rule 406, thereby
creating fungibility between all SONIA Contacts, whether resulting from
prior trading or from the LIBOR Transition. The Rule would also clarify
that such SONIA Contracts would also remain ICE Futures Europe
Contracts to bolster this outcome. Finally, open Contract Positions in
respect of any Set of Transitioning Three Month Sterling LIBOR
Contracts that would be excluded from the Sterling LIBOR Transition
pursuant to Rule 2405(a) (as described above) would be terminated and
cash settled at the relevant LIBOR Transition Futures Settlement Price
announced by the Clearing House pursuant to Rule 2404(b)(i).
    Rule 2405(c) would state that the Clearing House would not provide
for any one-off payment in respect of the amendment and restatement of
Transitioning Three Month Sterling LIBOR Contracts contemplated by
these LIBOR Transition Rules. The Rule would include an acknowledgment
that the proposed transition arrangements would be matters of which the
market as a whole would have sufficient notice, in light of the
extensive market consultation and discussion around LIBOR transition
issues, including with respect to the fallback spread methodology and
calculation, and in light of the ability of market participants to
voluntarily close out of positions prior to the LIBOR Transition Time.
    Rule 2405(d) would also clarify certain matters that apply in
respect of Transitioning Three Month Sterling LIBOR Contracts following
the LIBOR Transition Time. After such time, the Clearing House would be
able to apply contractual netting of offsetting SONIA Contracts of the
same Set that are recorded in the same Account in accordance with the
ordinary Rules applicable to netting. The Rule would also provide that
there may be additional ad hoc or regular Margin payments or calls
including related to the amendment and restatement of Transitioning
Three Month Sterling LIBOR Contracts subject to Sterling LIBOR
Transition as SONIA Contracts or any consequent netting and increase or
decrease in Open Contract Positions or changes in valuations. The
Clearing House would also reserve the right to correct or amend an
Exchange Delivery

Settlement Price under Part 7 of the Rules.
Amendment and Restatement of Transitioning Three Month EuroSwiss
Contracts
    Rule 2406 would provide substantially similar procedures for the
amendment and restatement of Transitioning Three Month EuroSwiss
Contracts into SARON Contracts (with the exception that each single lot
of a Transitioning Three Month EuroSwiss Contract would become a single
lot of the corresponding SARON Contract, and accordingly no rounding or
similar adjustment to open positions or payments in respect of odd lots
or balanced positions which are excluded from the LIBOR Transition will
be required).
Amendment and Restatement of Options on Transitioning Three Month
Sterling LIBOR Contracts
    Rule 2407 would set out the process for the amendment and
restatement of Options on Transitioning Three Month Sterling LIBOR
Contracts. As with the underlying Three Month Sterling Contract, in the
transition, two lots of Options on Transitioning Three month Sterling
LIBOR Contracts would be converted into a single lot of SONIA Options.
As a result, Rule 2407(a) would set out a procedure for rounding odd
numbered positions and balancing the remaining buy and sell positions
(with termination and cash settlement for any positions excluded from
the transition), similar to the procedure in Rule 2405(a) as discussed
above.
    Rule 2407(b) would set out the transition arrangements for Options
on Transitioning Three Month Sterling LIBOR Contracts at the LIBOR
Transition Time. Specifically, in respect of each Account of each
Clearing Member, every two lots of Options on any Transitioning Three
Month Sterling LIBOR Contract (which are not excluded from the Sterling
LIBOR Transition as described above) would be amended and restated as a
single lot of an Option on a SONIA Contract where the relevant Three
Month Sterling LIBOR Contract and SONIA Contract have an identical
delivery month. This amendment and restatement would result in the
adjustment of the expiry date of certain Options on Transitioning Three
Month Sterling LIBOR Contracts to the Friday prior to the third
Wednesday of the expiry month, consistent with the existing convention
for SONIA Contracts. The Strike Price of each Option on a SONIA
Contract arising under Rule 2407 would be amended and restated as the
Strike Price for the Option on the Transitioning Three Month Sterling
LIBOR Contract plus the Three Month Sterling LIBOR Spread. Rule 2407
would clarify that Options on SONIA Contracts arising under Rule 2407
would remain ICE Futures Europe Contracts. Any Open Contract Position
in respect of any Set of Options on any Transitioning Three Month
Sterling LIBOR Contracts that is excluded from the Sterling LIBOR
Transition pursuant to Rule 2407 would be terminated and cash settled
at the relevant LIBOR Transition Options Settlement Price previously
published by the Clearing House pursuant to Rule 2404(b)(iii).
    Rule 2407(c) would provide that, other than the payment described
above under Rule 2404(c), the Clearing House would not require any one-
off payment in respect of the amendment and restatement of Options on
any Transitioning Three Month Sterling LIBOR Contracts under Rule 2407.
The Rule would include an acknowledgment, similar to those described
above, that market participants have had sufficient notice of the
transition terms.
    Finally, Rule 2407(d) would address certain matters that would
apply following the LIBOR Transition Time. After such time, the
Clearing House would be able to apply contractual netting of offsetting
Options on SONIA Contracts of the same Set that are recorded in the
same Account, in accordance with Rule 406(a). SONIA Contracts (i.e.,
SONIA Futures) that would arise upon exercise of any Options converted
under Rule 2407 would be treated as being of the same Set as any other
SONIA Contracts of the same delivery month held by the Clearing Member
at the LIBOR Transition Time, and if they are in the same Account may
be subject to netting pursuant to Rule 406. The Clearing House would
clarify that additional ad hoc or regular Margin payments or calls
could be made, including related to the amendment and restatement of
the Options on Transitioning Three Month Sterling LIBOR Contracts as
Options on SONIA Contracts or any consequent netting and increase or
decrease in Open Contract Positions or changes in valuations. The
Clearing House would also reserve its rights under Part 8 to correct or
amend an Exchange Delivery Settlement Price under Part 8 of the Rules.
(b) Statutory Basis
    ICE Clear Europe believes that LIBOR Transition Rules are
consistent with the requirements of Section 17A of the Act \8\ and the
regulations thereunder applicable to it, including the standards under
Rule 17Ad-22.\9\ In particular, Section 17A(b)(3)(F) of the Act \10\
requires, among other things, that the rules of a clearing agency be
designed to promote the prompt and accurate clearance and settlement of
securities transactions and, to the extent applicable, derivative
agreements, contracts, and transactions, the safeguarding of securities
and funds in the custody or control of the clearing agency or for which
it is responsible, and the protection of investors and the public
interest. The amendments in the LIBOR Transition Rules are intended to
facilitate the transition of certain contracts in advance of the
cessation of the Sterling and Swiss Franc LIBOR panels on 31 December
2021, consistent with ongoing discussions among regulators, industry
groups and market participants more generally. The addition of the
LIBOR Transition Rules will provide a procedure for the transition of
Sterling and Swiss Franc LIBOR futures and options that would otherwise
expire after the expected LIBOR cessation into SONIA and SARON
Contracts, including applicable adjustments as appropriate. ICE Clear
Europe also notes that prior to the transition, market participants are
able on a voluntary basis to close out of Sterling and Swiss Franc
LIBOR contracts, and/or enter into SONIA or SARON Contracts, through
market transactions. The amendments thus provide a fallback to the
extent market participants have not voluntarily adjusted their
positions as of the transition time. As such, the amendments will
facilitate continued clearing by the Clearing House of the
transitioning contracts notwithstanding the cessation of the Sterling
and Swiss Franc LIBOR panels, and avoid the disruption to the market
that might otherwise occur upon LIBOR cessation. The amendments are
also consistent with, and support, the overall market transition away
from LIBOR-based contracts, which has been supported and indeed
initiated and required by regulators and market participants, both in
the UK and the US. In ICE Clear Europe's view, the amendments will thus
promote the prompt and accurate clearance and settlement of
transactions and the protections of investors within the meaning of
Section 17A(b)(3)(F) of the Act. In facilitating the transition away
from LIBOR-based contracts, consistent with the approach throughout the
derivatives, securities

and other markets, the amendments will also further the public
interest, within the meaning of that section. (ICE Clear Europe does
not believe the amendments would affect the safeguarding of securities
and funds in the custody or control of the clearing agency or for which
it is responsible, within the meaning of that section.)
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78q-1.
    \9\ 17 CFR 240.17Ad-22.
    \10\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    For similar reasons, the LIBOR Transition Rules also are consistent
with relevant requirements of Rule 17Ad-22. Rule 17Ad-22(e)(3)(i) \11\
requires clearing agencies to maintain a sound risk management
framework that identifies, measures, monitors and manages the range of
risks that it faces. The LIBOR Transition Rules will provide for the
transition of existing LIBOR-based contracts into SONIA and SARON
Contracts that are currently cleared by the Clearing House. As such,
the contracts, upon transition, will be subject to the existing risk
management framework and procedures of the Clearing House applicable to
SONIA and SARON Contracts. The LIBOR Transition Rules also contain
certain other arrangements to facilitate the transition, including
addressing odd lots of existing contracts or unbalanced books via
appropriate cash settlement at market value under a pre-determined
methodology, and providing for a one-time adjustment payment to reflect
the change in value resulting from a change in the expiration date of
some option contracts. Taken together, these arrangements further the
Clearing House's ability to manage the risk of the LIBOR transition,
and as such are consistent with the requirements of Rule 17Ad-
22(e)(3).\12\
---------------------------------------------------------------------------

    \11\ 17 CFR 240.17Ad-22(e)(3)(i).
    \12\ 17 CFR 240.17 Ad-22(e)(3)(i).
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(21) requires that a clearing agency ``be efficient
and effective in meeting the requirements of its participants and the
markets it serves, and have the covered clearing agency's management
regularly review the efficiency and effectiveness of its . . . scope of
products cleared or settled.'' \13\ The amendments are intended to be
consistent with, and facilitate, the market-wide transition away from
LIBOR-based contracts to so-called ``risk-free'' rates such as SONIA
and SARON, in light of the expressed positions of relevant regulators
and the commitments made by industry groups and market participants.
The amendments, which have already been consulted upon and give effect
to the output of broader consultations which have been undertaken by
the ICE Futures Europe exchange, will provide market participants
notice of the effect of the LIBOR Transition Rules on their contracts,
in the event they have not otherwise taken steps in the market to
address such contracts. As such, the amendments are, in ICE Clear
Europe's view, consistent with the requirements of its participants and
the markets it serves in light of the LIBOR transition, and will
facilitate compliance with Rule 17Ad-22(e)(21).
---------------------------------------------------------------------------

    \13\ 17 CFR 240.17Ad-22(e)(21)(iii).
---------------------------------------------------------------------------

(B) Clearing Agency's Statement on Burden on Competition

    ICE Clear Europe does not believe the proposed amendments would
have any impact, or impose any burden, on competition not necessary or
appropriate in furtherance of the purposes of the Act. The LIBOR
Transition Rules are intended to update the Clearing House's
instructions and practices with respect to certain Sterling and Swiss
Franc futures and option contracts that reference LIBOR, to address the
cessation of the Sterling and Swiss Franc LIBOR panels. (Although the
LIBOR Transition Rules will result in market participants ceasing to be
able to clear the Sterling and Swiss Franc LIBOR contracts, that is the
result of the de-listing of the contracts at the exchange level, and is
consistent with the movement of the broader market away from LIBOR-
based contracts given the anticipated cessation of publication.) The
amendments will provide for transition of remaining Sterling and Swiss
Franc LIBOR futures and options contracts as of the transition date to
SONIA or SARON contracts as applicable (contracts that are already
cleared by the Clearing House). Such changes are thus not intended to
impose new requirements on Clearing Members. As a result, ICE Clear
Europe does not expect that the proposed changes will adversely affect
access to clearing or the ability of Clearing Members, their customers
or other market participants to continue to clear contracts. ICE Clear
Europe also does not believe the amendments would materially affect the
cost of clearing or otherwise impact competition among Clearing Members
or other market participants or limit market participants' choices for
selecting clearing services. The LIBOR Transition Rules provide for a
one-off irreversible payment resulting from the change of value due to
the change of the expiry date upon the conversion of certain options.
Otherwise, as set forth above, the Clearing House does not believe that
the amendments require any additional compensation payments to be made
to any party to a transitioning contract, as the methodology for spread
adjustment that is being used has been the subject of extensive
industry consultation and discussion, and given that market
participants are able to close out and replace positions themselves
prior to the transition. Accordingly, ICE Clear Europe does not believe
the amendments would impose any burden on competition not necessary or
appropriate in furtherance of the purpose of the Act.

(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants or Others

    ICE Clear Europe conducted a 14-day public consultation with
respect to the LIBOR Transition Rules on 27 September 2021 pursuant to
ICE Clear Europe Circular no. C21113.\14\ Written comments relating to
the proposed amendments have not been received by ICE Clear Europe. ICE
Clear Europe will notify the Commission of any written comments
received with respect to the proposed rule change.
---------------------------------------------------------------------------

    \14\ ICE Clear Europe Circular C21/113 (27 Sept. 2021),
available at https://www.theice.com/publicdocs/clear_europe/circulars/C21113.pdf. Prior to such LIBOR Transition Rules being
developed, a LIBOR transition plan was published by ICE Futures
Europe on 22 March 2021 and distributed to its members.
---------------------------------------------------------------------------

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \15\ and paragraph (f) of Rule 19b-4 \16\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78s(b)(3)(A).
    \16\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml) or
     Send an email to [email protected]. Please include
File Number SR-ICEEU-2021-021 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-ICEEU-2021-021. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filings will also be available for inspection
and copying at the principal office of ICE Clear Europe and on ICE
Clear Europe's website at https://www.theice.com/clear-credit/regulation.
    All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-ICEEU-2021-021 and should be
submitted on or before November 30, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
---------------------------------------------------------------------------

    \17\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-24414 Filed 11-8-21; 8:45 am]
BILLING CODE 8011-01-P