[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Rules and Regulations]
[Pages 36339-36342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15650]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 98

[EPA-HQ-OAR-2009-0927; FRL-9322-1]
RIN A2060


Mandatory Reporting of Greenhouse Gases: Additional Sources of 
Fluorinated GHGs: Extension of Best Available Monitoring Provisions for 
Electronics Manufacturing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; Grant of reconsideration.

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SUMMARY: This action gives notice that EPA has initiated the 
reconsideration process in response to a request for reconsideration of 
provisions for the use of best available monitoring methods in Subpart 
I: Electronics Manufacturing of the Mandatory Greenhouse Gas Reporting 
Rule. Consequently, this action extends three of the deadlines in 
Subpart I related to using the best available monitoring methods 
provisions from June 30, 2011 to September 30, 2011.

DATES: This final rule is effective on June 30, 2011.

FOR FURTHER INFORMATION CONTACT: Ms. Carole Cook, Climate Change 
Division, Office of Atmospheric Programs (MC-6207J), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; 
telephone number (202) 343-9263; fax (202) 343-2342; e-mail address: 
[email protected]. For technical information and implementation 
materials, please go to the Web site http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. To submit a question, select Rule Help 
Center, then select Contact Us.

SUPPLEMENTARY INFORMATION: 
    Acronyms and Abbreviations. The following acronyms and 
abbreviations are used in this document.

BAMM Best Available Monitoring Methods
CAA Clean Air Act
CBI confidential business information
CFR Code of Federal Regulations
EPA U.S. Environmental Protection Agency
FR Federal Register
GHG greenhouse gas
mm millimeters
NTTAA National Technology Transfer and Advancement Act of 1995
PRA Paperwork Reduction Act
QA/QC quality assurance/quality control
RFA Regulatory Flexibility Act
SIA Semiconductor Industry Association
SBREFA Small Business Regulatory Enforcement Fairness Act
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
WWW Worldwide Web

Table of Contents

I. Background Information

[[Page 36340]]

II. Statutory and Executive Order Reviews
    A. General Requirements
    B. Submission to Congress and the Comptroller General
III. How can I get copies of this document and other related 
information?

I. Background Information

    EPA published Subpart I: Electronics Manufacturing of the 
Greenhouse Gas Reporting Rule on December 1, 2010 (75 FR 74774). This 
subpart requires monitoring and reporting of greenhouse gas (GHG) 
emissions from electronics manufacturing. Included in the December 1, 
2010 final rule are provisions allowing owners or operators of 
semiconductor manufacturing facilities the option of using and/or 
requesting the use of best available monitoring methods (BAMM) for 
specified parameters. Specifically, from January 1, 2011 to June 30, 
2011, owners or operators may use BAMM for any parameter that cannot 
reasonably be measured according to the monitoring and QA/QC 
requirements of Subpart I without submitting a request to and receiving 
approval from the Administrator (40 CFR 98.94(a)(1)). To extend the use 
of BAMM to estimate emissions that occur beyond June 30, 2011, the 
December 1, 2010 final rule provides that owners and operators must 
submit a request to and receive approval from the Administrator 
consistent with the following:
     Requests for extension of the use of BAMM to estimate 
emissions that occur from July 1, 2011 through December 31, 2011 for 
parameters other than recipe-specific utilization and by-product 
formation rates for the plasma etching process type must have been 
submitted to EPA no later than February 28, 2011 (40 CFR 98.94(a)(2)).
     Requests for extension of the use of BAMM to estimate 
emissions that occur from July 1, 2011 through December 31, 2011 for 
recipe-specific utilization and by-product formation rates for the 
plasma etching process type must be submitted to EPA no later than June 
30, 2011 (40 CFR 98.94(a)(3)).
     Requests for extension of the use of BAMM to estimate 
emissions beyond December 31, 2011 for unique and extreme circumstances 
must be submitted to EPA no later than June 30, 2011 (40 CFR 
98.94(a)(4)).
    Following the publication of subpart I in the Federal Register, the 
Semiconductor Industry Association (SIA) sought reconsideration of 
several provisions in the final rule, including the provisions relating 
to BAMM. In its Petition for Reconsideration dated January 31, 2011 
(available in docket EPA-HQ-OAR-2009-0927), SIA stated that the BAMM 
provisions raise ``substantive compliance issues.'' In particular, SIA 
stated that the substantive compliance issues relate to the following 
aspects of the BAMM provisions: The requirement to recalculate and 
resubmit estimated emissions, the individual requirement-by-requirement 
BAMM request process, the documentation requirement, the timeframe for 
assembling the documentation, and the unique and extreme circumstances 
provision. More specifically, SIA stated that the individual 
requirement-by-requirement BAMM request process is cumbersome and 
unreasonably burdensome, and that the required documentation to support 
the request is excessive. Further, SIA stated that the deadlines for 
submitting the request to use BAMM were ``unreasonable.'' In 
particular, SIA stated that the June 30, 2011 deadline for the recipe-
specific utilization and by-product formation rates was ``not 
realistic'' due to ``serious technical infeasibility issues.'' SIA also 
noted that the individuals who would be responsible for analyzing 
Subpart I, gathering information, and preparing the BAMM requests were 
the same individuals who would be working with EPA ``towards mutually 
acceptable solutions and alternatives.''
    EPA has concluded that pursuant to CAA section 307(d)(7)(B) it is 
appropriate to extend by three months the period in 40 CFR 98.94(a)(1), 
during which owners and operators have the option to use BAMM in 2011 
without submitting a request for approval from the Administrator. EPA 
has also concluded that pursuant to CAA section 307(d)(7)(B) it is 
appropriate to extend by three months the deadlines in 40 CFR 
98.94(a)(3)(i) and 98.94(a)(4)(i), by which owners and operators may 
submit a request for approval by the Administrator to use BAMM in 2011 
for recipe-specific utilization and by-product formation rates (recipe-
specific emission factors) for the plasma etching process type, and to 
use BAMM to estimate emissions that occur beyond December 31, 2011 for 
unique and extreme circumstances, respectively. Extending the deadlines 
will allow EPA additional time to consider comments and take final 
action on a proposal that EPA is also publishing today, as discussed in 
more detail in the following paragraphs.
    In a separate action also published in today's Federal Register 
(please refer to the proposed rule Mandatory Reporting of Greenhouse 
Gases: Changes to Provisions for Electronics Manufacturing (Subpart I) 
to Provide Flexibility in docket EPA-HQ-OAR-2009-0927), EPA is 
proposing to allow the largest semiconductor facilities the option of 
calculating emissions using default utilization and by-production 
formation rates (default emission factors) already contained in Subpart 
I for the plasma etching process type for a limited time period instead 
of calculating emissions using directly measured recipe-specific 
emission factors during that time period.\1\ The December 1, 2010 final 
rule provides that the largest semiconductor manufacturing facilities 
are required to calculate emissions for the plasma etching process type 
using only directly measured recipe-specific emission factors. Other 
semiconductor manufacturing facilities that manufacture wafers on 300 
millimeters (mm) or less in diameter are required to calculate 
emissions for the plasma etching process type using default emission 
factors provided in Tables I-3 and I-4 of Subpart I.
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    \1\ The ``largest'' semiconductor manufacturing facilities are 
defined as those facilities that fabricate devices on wafers 
measuring 300 mm or less in diameter and that have an annual 
manufacturing capacity of greater than 10,500 square meters (m\2\) 
of substrate. EPA estimates that the largest semiconductor 
manufacturing facilities comprise 29 facilities out of 175 total 
semiconductor facilities. See the Electronics Manufacturing 
Technical Support Document available in the docket (EPA-HQ-OAR-2009-
0927) for EPA's analysis.
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    In the separate action also published in today's Federal Register, 
EPA is proposing to allow the largest semiconductor facilities to use 
the same default emission factors already used by the other 
semiconductor manufacturing facilities that manufacture wafers on 300 
mm or less in diameter during the initial years of implementation of 
Subpart I in response to concerns raised by SIA in their Petition for 
Reconsideration regarding the individual recipe measurement approach, 
that is, the requirement that the largest facilities develop and use 
recipe-specific emission factors for etch processes. More specifically, 
in their Petition, SIA stated that the individual recipe measurement 
approach is technically impractical, burdensome, threatens intellectual 
property, and would hamper innovation. SIA also stated its member 
companies' ``strong desire to reach agreement with EPA on an 
alternative'' to that measurement approach. By extending the dates by 
which a facility may use and/or request the use of BAMM in today's 
final action, EPA will have additional time to consider comments and 
take final action on provisions in the separate action to allow the 
largest semiconductor manufacturing facilities to use the default 
emission factors already

[[Page 36341]]

contained in Subpart I in the initial years of implementation. In turn, 
this will provide a clear, consistent approach to compliance with 
Subpart I while EPA considers longer-term alternatives.
    In today's final rule, EPA is taking no action on other issues 
raised by SIA in their Petition for Reconsideration. EPA is also taking 
no action at this time on issues raised by 3M Company in their January 
28, 2011 Petition for Reconsideration of Subpart I.
    Pursuant to Clean Air Act (CAA) section 307(d)(7)(B), EPA is 
extending the deadlines in 40 CFR 98.94(a)(1), 40 CFR 98.94(a)(3)(i), 
and 40 CFR 98.94(a)(4)(i) for three months; i.e., until September 30, 
2011.
    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for making today's rule final without prior 
proposal and opportunity for comment. We are acting pursuant to CAA 
section 307(d)(7)(B) to extend these deadlines in part because we are 
considering a change to Subpart I, which would obviate the need to 
conduct a BAMM process for this aspect of the rule. In addition, we are 
extending these provisions to allow owners and operators of affected 
facilities additional time to assess their facilities to determine if 
it will be necessary for them to apply for BAMM for any other aspect of 
Subpart I beyond 2011 for unique and extreme circumstances. Because we 
cannot predict the outcome of today's proposed rule, we have concluded 
that a limited extension pending final action on that proposal is 
appropriate so that owners and operators of affected facilities would 
not incur additional costs associated with applying for BAMM in advance 
of our final decision on this issue. It would be impracticable to go 
through notice and comment rulemaking to extend an imminent deadline, 
and it is also unnecessary because section 307(d)(7)(B) does not 
require notice and comment for a three-month extension pending 
reconsideration. Thus, notice and public procedure are impracticable 
and unnecessary. EPA finds that this constitutes good cause under 5 
U.S.C. 553(b)(B) in this instance.

II. Statutory and Executive Order Reviews

A. General Requirements

    This action is not a ``significant regulatory action,'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and, 
therefore, not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011). For this reason, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). In addition, because the agency has made a ``good 
cause'' finding that this action is not subject to notice-and-comment 
requirements under the Administrative Procedure Act or any other 
statute (see Section I of this preamble) it is not subject to sections 
202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 
104-4). In addition, this action does not impose any enforceable duty 
or contain any unfunded mandates as described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with 
State officials, as specified by Executive Order 12875 (58 FR 58093, 
October 28, 1993), or involve special consideration of environmental 
justice related issues, as required by Executive Order 12898 (59 FR 
7629, February 16, 1994). Further, because the agency has made a ``good 
cause'' finding that this action is not subject to notice-and-comment 
requirements under the Administrative Procedure Act or any other 
statute, it is not subject to the regulatory flexibility provisions of 
the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). This action 
also does not have Tribal implications because it will not have a 
substantial direct effect on one or more Indian Tribes, on the 
relationship between the Federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action also is not subject to 
Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997). The 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). EPA's 
compliance with these statutes and Executive Orders for the underlying 
rule is discussed in the December 1, 2010 Federal Register document.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective June 30, 2011.

III. How can I get copies of this document and other related 
information?

    This Federal Register notice is available in the docket for the 
final rule titled ``Mandatory Reporting of Greenhouse Gases: Additional 
Sources of Fluorinated GHGs,'' published on December 1, 2010 at 98 FR 
74774, under Docket ID No. EPA-HQ-OAR-2009-0927.
    All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some 
information may not be publicly available, i.e., Confidential Business 
Information 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. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the EPA's Docket Center, Docket ID No. EPA-HQ-OAR-2009-0927, Public 
Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue, 
Northwest, Washington, DC 20460. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and

[[Page 36342]]

the telephone number for the Air Docket Center is (202) 566-1741.
    In addition to being available in the docket, an electronic copy of 
this Federal Register notice is also available on the World Wide Web at 
http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

List of Subjects in 40 CFR Part 98

    Environmental Protection, Administrative practice and procedures, 
Air pollution control, Monitoring, Reporting and recordkeeping.

    Dated: June 15, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons discussed in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

PART 98--[AMENDED]

0
1. The authority citation for part 98 continues to read as follows:

    Authority:  42 U.S.C. 7401-7671q.

Subpart I--[Amended]

0
2. Section 98.94 is amended as follows:
0
a. By revising paragraph (a)(1) introductory text.
0
b. By revising paragraph (a)(3) introductory text.
0
c. By revising paragraph (a)(3)(i).
0
d. By revising paragraph (a)(4)(i).


Sec.  98.94  Monitoring and QA/QC requirements.

    (a) * * *
    (1) Best available monitoring methods. From January 1, 2011 through 
September 30, 2011, owners or operators may use best available 
monitoring methods for any parameter that cannot reasonably be measured 
according to the monitoring and QA/QC requirements of this subpart. The 
owner or operator must use the calculation methodologies and equations 
in Sec.  98.93, but may use the best available monitoring method for 
any parameter for which it is not reasonably feasible to acquire, 
install, or operate a required piece of monitoring equipment in a 
facility, or to procure necessary measurement services by January 1, 
2011. Starting no later than October 1, 2011, the owner or operator 
must discontinue using best available monitoring methods and begin 
following all applicable monitoring and QA/QC requirements of this 
part, except as provided in paragraphs (a)(2), (a)(3), or (a)(4) of 
this section. Best available monitoring methods means any of the 
following methods specified in this paragraph:
* * * * *
    (3) Requests for extension of the use of best available monitoring 
methods in 2011 for recipe-specific utilization and by-product 
formation rates for the plasma etching process type under Sec.  
98.93(a)(2)(ii)(A). The owner or operator may submit a request to the 
Administrator under this paragraph (a)(3) to use one or more best 
available monitoring methods to estimate emissions that occur between 
October 1, 2011 and December 31, 2011 for recipe-specific utilization 
and by-product formation rates for the etching process type under Sec.  
98.93(a)(2)(ii)(A).
    (i) Timing of request. The extension request must be submitted to 
EPA no later than September 30, 2011.
* * * * *
    (4) * * *
    (i) Timing of request. The extension request must be submitted to 
EPA no later than September 30, 2011.
* * * * *

[FR Doc. 2011-15650 Filed 6-21-11; 8:45 am]
BILLING CODE 6560-50-P