[Federal Register Volume 76, Number 187 (Tuesday, September 27, 2011)]
[Rules and Regulations]
[Pages 59542-59551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24364]
[[Page 59542]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 98
[EPA-HQ-OAR-2009-0927; FRL-9469-3]
RIN 2060-AR26
Mandatory Reporting of Greenhouse Gases: Changes to Provisions
for Electronics Manufacturing To Provide Flexibility
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is issuing a regulation to amend the calculation and
monitoring provisions in the Electronics Manufacturing portion of the
Greenhouse Gas Reporting Rule for the ``largest'' semiconductor
manufacturing facilities (i.e., those that fabricate devices on wafers
measuring 300 millimeters or less in diameter and that have an annual
manufacturing capacity of greater than 10,500 square meters). More
specifically, for reporting years 2011, 2012, and 2013, these
amendments allow the largest semiconductor facilities the option to
calculate emissions using default emission factors already contained in
the regulations, instead of recipe-specific utilization and by-product
formation rates for the plasma etching process type. In addition, this
action extends two deadlines in the provisions related to the use of
best available monitoring methods.
DATES: This final rule is effective on September 30, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2009-0927. All documents in the docket are listed in the
http://www.regulations.gov index. 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 is publicly available in hard copy only.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Air Docket,
EPA/DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. 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 the telephone
number for the Air Docket is (202) 566-1742.
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, please go to the
Greenhouse Gas Reporting Rule Program Web site http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. To submit a question,
select Rule Help Center, followed by ``Contact Us.''
Worldwide Web (WWW). In addition to being available in Docket ID
No. EPA-HQ-OAR-2009-0927, following the Administrator's signature, an
electronic copy of this final rule will also be available through the
WWW on EPA's Greenhouse Gas Reporting Program Web site at http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.
SUPPLEMENTARY INFORMATION:
Regulated Entities. The Administrator determined that this action
is subject to the provisions of Clean Air Act (CAA) section 307(d). See
CAA section 307(d)(1)(V) (the provisions of section 307(d) apply to
``such other actions as the Administrator may determine''). These are
final changes to existing regulations. These amended regulations affect
owners or operators of certain manufacturers of electronic devices.
Regulated categories and examples of affected entities include those
listed in Table 1 of this preamble.
Table 1--Examples of Affected Entities by Category
----------------------------------------------------------------------------------------------------------------
Category NAICS Examples of affected facilities
----------------------------------------------------------------------------------------------------------------
Electronics Manufacturing....................... 334111 Microcomputer manufacturing facilities.
334413 Semiconductor, photovoltaic (solid-state) device
manufacturing facilities.
334419 Liquid Crystal Display (LCD) unit screens
manufacturing facilities.
334419 Micro-electro-mechanical systems (MEMS)
manufacturing facilities.
----------------------------------------------------------------------------------------------------------------
Although Table 1 of this preamble lists the types of facilities
that EPA is now aware could be potentially affected by this action,
other types of facilities not listed in the table could also be
affected. To determine whether you are affected by this action, you
should carefully examine the applicability criteria found in 40 CFR
part 98, subparts A and I. If you have questions regarding the
applicability of this action to a particular facility or supplier,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT Section.
The final rule is effective on September 30, 2011. Section 553(d)
of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5,
generally provides that rules may not take effect earlier than 30 days
after they are published in the Federal Register. EPA is issuing this
final rule under section 307(d)(1) of the CAA, which states: ``The
provisions of section 553 through 557 * * * of Title 5 shall not,
except as expressly provided in this section, apply to actions to which
this subsection applies.'' Thus, section 553(d) of the APA does not
apply to this rule. EPA is nevertheless acting consistently with the
purposes underlying APA section 553(d) in making this rule effective on
September 30, 2011. Section 5 U.S.C. 553(d)(3) allows an effective date
less than 30 days after publication ``as otherwise provided by the
agency for good cause found and published with the rule.'' As explained
below, EPA finds that there is good cause for this rule to become
effective on September 30, 2011, even though this results in an
effective date fewer than 30 days from date of publication in the
Federal Register.
The purpose of the 30-day waiting period prescribed in 5 U.S.C.
553(d) is to give affected parties a reasonable time to adjust their
behavior and prepare before the final rule takes effect. Where, as
here, the revisions being made in this package provide flexibilities to
sources covered by the reporting rule, a shorter effective date in such
circumstances is consistent with the purposes of APA section 553(d),
which provides an exception for any action that grants or recognizes an
exemption or relieves a restriction. Accordingly, we find good cause
exists to make this rule effective
[[Page 59543]]
on September 30, 2011, consistent with the purposes of 5 U.S.C.
553(d)(3).
Judicial Review. Under section 307(b)(1) of the CAA, judicial
review of this final rule is available only by filing a petition for
review in the U.S. Court of Appeals for the District of Columbia
Circuit (the Court) by November 28, 2011. Under CAA section
307(d)(7)(B), only an objection to this final rule that was raised with
reasonable specificity during the period for public comment can be
raised during judicial review. CAA section 307(d)(7)(B) also provides a
mechanism for EPA to convene a proceeding for reconsideration, ``[i]f
the person raising an objection can demonstrate to EPA that it was
impracticable to raise such objection within [the period for public
comment] or if the grounds for such objection arose after the period
for public comment (but within the time specified for judicial review)
and if such objection is of central relevance to the outcome of the
rule.'' Any person seeking to make such a demonstration to us should
submit a Petition for Reconsideration to the Office of the
Administrator, Environmental Protection Agency, Room 3000, Ariel Rios
Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a
copy to the person listed in the preceding FOR FURTHER GENERAL
INFORMATION CONTACT section, and the Associate General Counsel for the
Air and Radiation Law Office, Office of General Counsel (Mail Code
2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20004. Note, under CAA section 307(b)(2), the
requirements established by this final rule may not be challenged
separately in any civil or criminal proceedings brought by EPA to
enforce these requirements.
Acronyms and Abbreviations
The following acronyms and abbreviations are used in this document.
APA Administrative Procedure Act.
BAMM best available monitoring methods.
CAA Clean Air Act.
CBI confidential business information.
CFR Code of Federal Regulations.
DRE Destruction or Removal Efficiency.
EPA U.S. Environmental Protection Agency.
FR Federal Register.
GHG greenhouse gas.
ICR Information Collection Request.
ISMI International Sematech Manufacturing Initiative.
LCD Liquid Crystal Display.
LED Light-emitting Diodes.
m\2\ square meters.
mm millimeter.
MEMS Micro-electro-mechanical systems.
NAICS North American Industrial Classification System.
NTTAA National Technology Transfer and Advancement Act of 1995.
OMB Office of Management and Budget.
QA/QC Quality Assurance/Quality Control.
RFA Regulatory Flexibility Act.
RIA Regulatory Impact Analysis.
SBA Small Business Administration.
SIA Semiconductor Industry Association.
SBREFA Small Business Regulatory Enforcement and Fairness Act.
U.S. United States.
UMRA Unfunded Mandates Reform Act of 1995.
USC United States Code.
WWW World Wide Web.
Table of Contents
I. Background
A. Organization of This Preamble
B. Background on This Action
C. Legal Authority
II. Final Changes to Subpart I of 40 CFR part 98 and Responses to
Public Comments
A. Summary of Final Changes to Subpart I
B. Summary of Comments and Responses
1. Summary of Comments and Responses on Allowing the Largest
Semiconductor Manufacturing Facilities To Use Default Emission
Factors for the Plasma Etching Process Type
2. Summary of Comments and Responses on Extending the Use of
BAMM
3. Summary of Comments and Responses on Apportioning Model
Verification
4. Summary of Comments and Responses on Abatement System Uptime
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Background
A. Organization of This Preamble
The first section of this preamble contains the basic background
information about the origin of the amendments to the rule being made
today. This section also discusses EPA's use of our legal authority
under the Clean Air Act to collect data under the Greenhouse Gas
Reporting Program (also referred to as 40 CFR part 98 or Part 98).
The second section of this preamble describes in detail the changes
to subpart I that are being promulgated, and EPA's rationale for those
changes. This section also presents a summary of, and EPA's responses
to, the major public comments submitted on the proposed rule
amendments, and significant changes, if any, made since proposal in
response to those comments.
Finally, the last (third) section of the preamble discusses the
various statutory and executive order requirements applicable to this
rulemaking.
B. Background on This Action
EPA finalized subpart I: Electronics Manufacturing of the
Greenhouse Gas Reporting Rule on December 1, 2010 (40 CFR part 98,
subpart I) (75 FR 74774) (subpart I). In that rule, among other
provisions, EPA finalized two different methods for facilities that
manufacture semiconductors wafers measuring 300 mm or less in diameter
to calculate and report their fluorinated GHG emissions, depending on
the facility's manufacturing capacity: (1) A method for those
facilities that have an annual manufacturing capacity greater than
10,500 m\2\ of substrate (hereinafter referred to as the ``largest
semiconductor manufacturing facilities''), and (2) a method for
facilities that have an annual manufacturing capacity that is less than
or equal to 10,500 m\2\ of substrate (hereinafter referred to as
``other semiconductor manufacturing facilities''). Pursuant to 40 CFR
98.93(a)(2)(ii), the largest semiconductor manufacturing facilities
must calculate and report their emissions using a combination of
default emission factors and directly measured recipe-specific emission
factors. For the following four process types and sub-types, the
largest semiconductor manufacturing facilities must calculate emissions
using only the default emission factors:
Chamber cleaning process type which includes the following
three process sub-types:
--In-situ plasma chamber cleaning process sub-type.
--Remote plasma chamber cleaning process sub-type.
--In-situ thermal chamber cleaning process sub-type.
Wafer cleaning process type.
For the plasma etching process type, the largest semiconductor
manufacturing facilities are required to calculate emissions using only
directly measured recipe-specific emission factors. This method is
referred to as the Tier 2d method.
[[Page 59544]]
Pursuant to 40 CFR 98.93(a)(2)(1), other semiconductor
manufacturing facilities must calculate and report their fluorinated
GHG emissions using default emission factors for the following five
process types and sub-types:
Plasma etching process type.
Chamber cleaning process type, which includes the
following three process sub-types:
--In-situ plasma chamber cleaning process sub-type.
--Remote plasma chamber cleaning process sub-type.
--In-situ thermal chamber cleaning process sub-type.
Wafer cleaning process type.
This method is referred to as the Tier 2c method.
In the December 1, 2010 rule, EPA also included provisions in
section 98.94(a) for all electronics manufacturing facilities to use
and/or request the use of best available monitoring methods (BAMM) for
a specific period of time in lieu of following the monitoring and
Quality Assurance/Quality Control (QA/QC) requirements of subpart I for
certain parameters that cannot reasonably be measured.
Following the publication of subpart I in the Federal Register, the
Semiconductor Industry Association (SIA) sought reconsideration of
several provisions in the final rule (See SIA petition available in
Docket ID No. EPA-HQ-OAR-2009-0927). In particular, SIA raised concerns
about the provisions related to the use of BAMM and also the individual
recipe measurement approach, that is, the requirement that the largest
facilities develop and use recipe-specific emission factors for etch
processes.\1\
---------------------------------------------------------------------------
\1\ For more information, see SIA's petition in the docket, EPA-
HQ-OAR-2009-0927.
---------------------------------------------------------------------------
In response to SIA's petition, EPA took two initial actions. First,
on June 22, 2011 EPA granted reconsideration with respect to the
deadlines contained in the subpart I BAMM provisions and published a
final rule that extended three of the subpart I BAMM deadlines,
relating to when owners and operators may use or request to use BAMM,
from June 30, 2011 to September 30, 2011 (76 FR 36339). Second, also on
June 22, 2011, EPA published a proposed rule to allow the largest
semiconductor manufacturers to use the default utilization and by-
product formation rates (default emission factors) already contained
within subpart I in Tables I-3 and I-4 to estimate fluorinated GHG
emissions for the plasma etching process type through December 31,
2012, instead of using directly measured recipe-specific emission
factors for each individual recipe or set of similar recipes \2\ (76 FR
36472). This proposed action also sought comment on whether certain
BAMM deadlines should be extended, whether the largest semiconductor
manufacturing facilities should be allowed to use default emission
factors in lieu of recipe-specific emission factors through December
31, 2013, and on the verification requirement for facility specific
engineering models used to apportion gas consumption (40 CFR
98.94(c)(2)).
---------------------------------------------------------------------------
\2\ Pursuant to subpart I, to be included in a set of similar
recipes, a recipe must be similar to the recipe in the set for which
recipe-specific utilization and by-product formation rates have been
measured.
---------------------------------------------------------------------------
C. Legal Authority
EPA is promulgating these rule amendments under its existing CAA
authority, specifically authorities provided in CAA section 114.
As stated in the preamble to the 2009 final Part 98 (74 FR 56260,
October 30, 2009) and the Response to Comments on the Proposed Rule,
Volume 9, Legal Issues, CAA section 114 provides EPA broad authority to
require the information proposed to be gathered by this rule because
such data would inform and are relevant to EPA's carrying out a wide
variety of CAA provisions. As discussed in the preamble to the initial
proposed part 98 (74 FR 16448, April 10, 2009), CAA section 114(a)(1)
authorizes the Administrator to require emissions sources, persons
subject to the CAA, manufacturers of control or process equipment, or
persons whom the Administrator believes may have necessary information
to monitor and report emissions and provide such other information the
Administrator requests for the purposes of carrying out any provision
of the CAA. For further information about EPA's legal authority, see
the preambles to the 2009 proposed and final Part 98 rules and EPA's
Response to Comments, Volume 9.\3\
---------------------------------------------------------------------------
\3\ 74 FR 16448 (April 10, 2009) and 74 FR 56260 (October 30,
2009). Response to Comments Documents can be found at http://www.epa.gov/climatechange/emissions/responses.html.
---------------------------------------------------------------------------
II. Final Changes to Subpart I of 40 CFR part 98 and Responses to
Public Comments
A. Summary of Final Changes to Subpart I
In this action, EPA is finalizing provisions to allow the largest
semiconductor manufacturing facilities the option to calculate
emissions using default emission factors already contained within
subpart I, instead of recipe-specific emission factors, for the plasma
etching process type for reporting years 2011, 2012, and 2013. In other
words, through December 31, 2013, the largest semiconductor
manufacturing facilities may use the Tier 2c \4\ method to estimate
fluorinated GHG emissions from etching and cleaning processes. This
gives more time for EPA to work on various approaches SIA has proposed
as alternatives to the recipe-specific approach. SIA is currently in
the process of providing information to EPA for consideration and
evaluation.
---------------------------------------------------------------------------
\4\ In the December 1, 2010 final rule (75 FR 74774), EPA named
the following method the ``Tier 2c Method''--A method based on
calculating and reporting fluorinated GHG emissions using default
emission factors for the following five process types and sub-types:
the plasma etching process type; the chamber cleaning process type,
which includes the following three process sub-types: the in-situ
plasma chamber cleaning process sub-type, the remote plasma chamber
cleaning process sub-type, the in-situ thermal chamber cleaning
process sub-type; and the wafer cleaning process type.
---------------------------------------------------------------------------
As EPA explained in the preamble to the June 22, 2011 proposed
rule, SIA has identified three alternative methodologies that they are
proposing for the Agency's consideration and for which they are
currently collecting information to support their development: (1) Etch
Process Subcategories and Default Emissions Factors; (2) Direct
Estimation of Emissions Based on Use Allocation and Application of
Abatement Unit Destruction and Efficiency (DRE); and (3) Stack Testing
(75 FR 36472). For more information on the three options, please refer
to SIA's letter (available in docket EPA-HQ-OAR-2009-0927).
Since publication of the proposed rule, SIA has continued to pursue
the three options and provide EPA with supporting technical information
and/or future work plans. Given the technical complexity of the three
alternatives and based on the current status of their development, EPA
has determined that more time is needed for SIA to continue to work on
the alternative options, for EPA to fully assess them, and for the
Agency to undertake rulemaking to revise subpart I as appropriate. Over
the next approximately two and a half years, EPA plans to
comprehensively evaluate the technical information that SIA provides on
the methodologies, determine whether one or more of them should be
included in subpart I as alternatives to the recipe-specific
measurement approach for the largest semiconductor manufacturing
facilities, and revise subpart I as appropriate, through a notice and
comment
[[Page 59545]]
rulemaking. It is EPA's intention to finalize a revision to subpart I
that can be implemented by the largest semiconductor manufacturing
facilities by January 1, 2014.
This action also extends two deadlines in the subpart I provisions
related to the use of BAMM. First, EPA is extending the date by which
an owner or operator subject to subpart I may, without submitting a
request, use BAMM to estimate 2011 emissions from September 30, 2011 to
December 31, 2011. EPA is extending the deadline to provide additional
flexibility for any owner or operator that was unable to meet the
February 28, 2011 deadline for submitting a request for the use of BAMM
in 2011 for parameters other than recipe-specific emission factors.
Second, EPA is extending the date by which an owner or operator may
submit a request to extend the use of BAMM beyond December 31, 2011
from September 30, 2011 to October 17, 2011. EPA is extending the
deadline to provide owners and operators additional time to prepare and
submit the request. EPA has concluded that this flexibility is
appropriate given that the effective date of this final rule, September
30, 2011, is the same as the date by which extension requests are
required to be submitted to the Administrator. See Section II.B.2 below
of this preamble for additional discussion on both of these topics.
Lastly, in this action, EPA is clarifying several aspects of the
subpart I BAMM provisions. More specifically, EPA is clarifying that
the subpart I BAMM provisions for estimating emissions beyond December
31, 2011 do not specify an end date to the period for which EPA may
approve the use of BAMM. In addition, EPA is clarifying the distinction
between the elements of the BAMM application and the approval criteria
by which EPA will determine if a facility is approved to use BAMM to
estimate emissions beyond December 31, 2011.
Under today's final rule, owners and operators applying to extend
the use of BAMM beyond December 31, 2011 must submit a request to EPA
no later than October 17, 2011. The BAMM extension provisions do not
impose an end date: for example, they do not say that extensions are
limited to 2012. EPA does not intend to approve the indefinite use of
BAMM; all BAMM applications should specify the date on which the
facility plans to cease the use of BAMM. However, EPA does understand
that there are specific aspects of the final subpart I provisions for
which compliance may not be reasonably feasible for certain facilities
during the interim period addressed in this rulemaking and for which,
in some cases, EPA is evaluating and considering other approaches. In
particular, the establishment of an interim period through 2013 during
which the largest facilities have the option of using the Tier 2c
method \5\ while the Agency considers longer-term alternatives may
affect facilities' planning for compliance with other aspects of
subpart I. In part, this is because the potential incorporation of
alternative methods into subpart I could render certain aspects of the
rule moot for some facilities, depending on the alternative adopted.
For example, if EPA were to propose to revise subpart I to include a
stack testing method, the Agency would also consider whether certain
aspects of subpart I as currently written would be unnecessary to
determine the emissions of facilities using that method. In addition,
any revisions to subpart I to incorporate alternative methods likely
would not be effective until 2014, meaning that facilities that are
interested in moving toward alternatives and that are requesting BAMM
for 2012 may need to consider whether their applications should include
2013 as well.
---------------------------------------------------------------------------
\5\ See footnote 4.
---------------------------------------------------------------------------
EPA has concluded that the existing subpart I BAMM provisions
provide flexibility to address facilities' needs during this interim
period as the Agency continues to consider longer-term alternatives.
See Section II.A.2 and II.A.3 for additional discussion on this topic.
EPA is also clarifying the difference between the application
requirements and the approval criteria for BAMM extensions in subpart
I. The application requirements are contained in 40 CFR
98.94(a)(4)(ii), and the approval criteria appear in 40 CFR
98.94(a)(4)(iii). With regard to approval, the rule states, ``To obtain
approval, the owner or operator must demonstrate that by December 31,
2011 (or in the case of facilities that are required to calculate and
report emissions in accordance with Sec. 98.93(a)(2)(ii)(A), December
31, 2012), it is not reasonably feasible to acquire, install, or
operate the required piece of monitoring equipment according to the
requirements of this subpart.'' Given today's final rule to allow the
largest semiconductor manufacturing facilities to use default emission
factors to estimate emissions for the plasma etching process type
during an interim period, EPA doesn't anticipate receiving any requests
for the use of BAMM for recipe-specific emission factors. If there are
facilities that are unable to meet the requirements for other
monitoring or QA/QC aspects of subpart I in 2012 or beyond, then they
should apply for BAMM for the period they believe to be necessary and
EPA will evaluate whether to allow the use of BAMM and for how long. In
some instances, EPA anticipates that facilities will come into
compliance with the requirements quickly; for others, EPA understands
that facilities may wish to use BAMM while EPA considers alternatives.
It is important to note that EPA does not anticipate approving the use
of BAMM for current subpart I provisions beyond the time that EPA
promulgates a final rule with alternative methodologies. As stated in
previous paragraphs of this section, we anticipate issuing a revised
rule by January 1, 2014.
B. Summary of Comments and Responses
EPA received comments from five entities. In general, all
commenters supported EPA's proposal to allow the largest semiconductor
manufacturing facilities to use default emission factors to estimate
fluorinated GHG emissions for the plasma etching process type for 2011
and 2012, and requested that EPA extend the use of defaults through
December 31, 2013. The comments are addressed in more detail below.
1. Summary of Comments and Responses on Allowing the Largest
Semiconductor Manufacturing Facilities To Use Default Emission Factors
for the Plasma Etching Process Type
All five commenters strongly supported EPA's proposal to allow the
largest semiconductor manufacturing facilities to use the Tier 2c
Method \6\ to calculate emissions for the years 2011 and 2012 in lieu
of using the Tier 2d Method.\7\ These commenters viewed the
finalization of this flexibility provision as an important first step
in addressing their technical feasibility, compliance cost, and data
confidentiality concerns about subpart I. (One commenter provided
accompanying detailed documentation to support each of the
aforementioned concerns.) These same commenters also noted that
allowing the use of the Tier 2c Method \8\ in 2011 and 2012 provides
more time for members of the industry to conduct ongoing work in
[[Page 59546]]
support of various alternative approaches to estimating and reporting
fluorinated GHG emissions for EPA to evaluate and consider. Some
commenters referenced the three alternatives proposed by SIA as
discussed in a letter dated May 26, 2011 (available in docket EPA-HQ-
OAR-2009-0927). One commenter stated, ``These alternatives [the SIA
proposed alternatives], if adopted by EPA, will provide the largest
semiconductor facilities a menu of GHG reporting options that will
avoid the serious issues raised by the current subpart I, while
providing comparable or better accuracy than the current rule.''
Another commenter opined that the ongoing alternatives work could be
done while still allowing facilities to report fluorinated GHG
emissions in a manner that avoids feasibility and cost issues that the
commenter believed were inherent to subpart I.
---------------------------------------------------------------------------
\6\ See footnote 4.
\7\ In the December 1, 2010 final rule (75 FR 74774), EPA named
the following method the ``Tier 2d Method''--A method based on
calculating and reporting fluorinated GHG emissions using default
emission factors for the three chamber cleaning process sub-types
(defined in footnote 4) and the wafer cleaning process type, and
recipe-specific emission factors for the plasma etching process
type.
\8\ See footnote 4.
---------------------------------------------------------------------------
A few commenters asserted that because of feasibility, cost, and
confidentiality issues, many facilities would need to file BAMM
requests for developing or obtaining recipe-specific emission factors
for the plasma etching process type. Several commenters supported the
flexibility provisions because they provide uniform relief from BAMM
petition requests, avoiding spending both facility and EPA resources to
prepare and review BAMM requests on an individualized case basis.
Similarly, all commenters strongly supported extending the use of
the Tier 2c Method \9\ beyond December 31, 2012 through 2013. One
commenter stated that it shared EPA's goal of finalizing any
alternative approaches for estimating and reporting fluorinated GHG
emissions for the 2013 reporting year. However, commenters argued that,
given the technical complexities associated with development of
alternatives to the Tier 2d Method,\10\ additional time will be
necessary for industry to test and collect data about the alternatives
and for EPA to evaluate those alternatives. One commenter asserted that
this extension would allow the facility to focus its resources on
developing alternative emission estimation and reporting methods as
opposed to diverting resources to an approach that it does not believe
is workable.
---------------------------------------------------------------------------
\9\ See footnote 4.
\10\ See footnote 7.
---------------------------------------------------------------------------
Another commenter stated that it was critical to extend the time
period in which default emission factors could be used to estimate
emissions from all process types/sub-types. The commenter further
stated that the current schedule to finalize a revised subpart I by the
end of 2012 is aggressive and accelerated, and may result in a repeat
of the shortcomings that led to the final subpart I published in
December 2010 (75 FR 74774). The same commenter also expressed the
opinion that it is important that the process of revising subpart I
does not drag on interminably, but it is equally important that EPA has
sufficient information to balance requirements, accuracy and precision
of emission estimates, and costs. The commenter argued that allowing
the use of the Tier 2c Method \11\ through 2013 will allow EPA to find
that balance.
---------------------------------------------------------------------------
\11\ See footnote 4.
---------------------------------------------------------------------------
In response to these comments received, EPA is finalizing a
provision to allow the largest semiconductor manufacturing facilities
the option to use, for an interim period, the default utilization and
by-product formation rates already contained within subpart I, in
Tables I-3 and I-4, to estimate fluorinated GHG emissions for the
plasma etching process type instead of using directly measured recipe-
specific emission factors. In addition, EPA agrees with commenters that
the largest semiconductor manufacturing facilities should be allowed to
use the default emission factors to estimate emissions from etch
processes through December 31, 2013 (i.e., use the Tier 2c Method \12\
through 2013), and in this final rule is allowing the largest
semiconductor manufacturing facilities to use default emission factors
for reporting years 2011, 2012, and 2013. EPA has concluded that the
additional year will provide more time for industry to continue to
collect and analyze information for the development of SIA's three
proposed alternatives, for EPA to evaluate and determine which
alternatives may be included in a subsequent action, and for EPA to
undertake a rulemaking, as appropriate. As EPA stated above, over the
next approximately two and a half years, EPA plans to comprehensively
evaluate the technical information that SIA provides on the
methodologies, determine whether one or more of them should be included
in subpart I as alternatives to the recipe-specific measurement
approach for the largest semiconductor manufacturing facilities, and
revise subpart I as appropriate. During the time in which this
flexibility is being provided to industry, EPA expects SIA to continue
to collect detailed information on the alternative methodologies that
EPA plans to use to support its evaluation.
---------------------------------------------------------------------------
\12\ See footnote 4.
---------------------------------------------------------------------------
EPA believes this approach effectively balances the industry's
request for flexibility with sufficient time for EPA to fully evaluate
the information that SIA provides on the alternative methodologies to
analyze the accuracy and precision of emission estimates, as well as
burden. EPA believes that the time now allotted to working on the
alternative options for estimating and reporting fluorinated GHG
process emissions from semiconductor manufacturing is appropriate, and
intends to finalize a revision to subpart I that can be implemented by
the largest semiconductor manufacturing facilities by January 1, 2014.
2. Summary of Comments and Responses on Extending the Use of BAMM
EPA requested comment on whether to extend, until December 31,
2011, the period during which an owner or operator subject to subpart I
may use BAMM to estimate 2011 emissions without submitting a request.
Under the existing subpart I provisions, finalized on June 22, 2011 (76
FR 36339), to estimate emissions that occur from January 1, 2011 to
September 30, 2011, owners and operators may use BAMM without
submitting a request for approval to the EPA Administrator (40 CFR
98.94(a)(1)). EPA requested comment on whether to extend the date by
which owners and operators may use BAMM without submitting a request
for approval by the Administrator to December 31, 2011.
In addition, EPA also requested comment on whether to extend two
other BAMM deadlines: the deadline by which an owner or operator may
request the use of BAMM for recipe-specific emission factors in 2011
and the deadline for requesting use of BAMM for estimating emissions
beyond December 31, 2011. Under the subpart I provisions finalized on
June 22, 2011 (76 FR 36339), both deadlines are September 30, 2011 (40
CFR 98.94(a)(3)(i) and 40 CFR(a)(4)(i)).
EPA did not receive any comments in response to its requests.
However, after evaluating comments received and further consideration
of the time period between the effective date of this final rule and
the date by which requests to extend the use of BAMM beyond December
31, 2011 must be submitted, EPA is extending two of the subpart I BAMM
deadlines. First, EPA is extending until December 31, 2011 the time
period during which an owner or operator may, without submitting a
request, use BAMM to estimate
[[Page 59547]]
emissions in 2011. EPA is extending the deadline to provide flexibility
for any owner or operator that was unable to meet the February 28, 2011
deadline for submitting a request to use BAMM in 2011 for parameters
other than recipe-specific emission factors. Given the short time
between the publication of the final subpart I in December 2010 and
February 28, 2011, there may have been some owners or operators that
were unable to submit a request by the deadline. Second, EPA is
extending the deadline by which an owner or operator may submit a
request to use BAMM to estimate emissions beyond December 31, 2011 from
September 30, 2011 to October 17, 2011. EPA has concluded that this
flexibility of approximately two weeks is appropriate given that the
effective date of this final rule, September 30, 2011, is the same date
as the deadline for submitting a request to the Administrator to extend
the use of BAMM beyond December 31, 2011. EPA anticipates that some
owners and operators will submit requests for the use of BAMM beyond
December 31, 2011, and that they may need additional time to prepare
and submit the request, particularly in light of the clarifications
that EPA provided in this notice about the subpart I BAMM provisions.
EPA is not extending the deadline further than October 17, 2011 because
sufficient time is needed for EPA to review and respond to the owner or
operator before the beginning of the next reporting period on January
1, 2012.
EPA is not making any changes to the deadline for submitting a
request to use BAMM for recipe-specific emission factors in 2011. Given
today's final rule that allows the largest semiconductor manufacturing
facilities to use the Tier 2c method \13\ for three years, EPA does not
anticipate receiving any requests for the use of BAMM for recipe-
specific emission factors in 2011. If an owner or operator is unable to
comply with the Tier 2d method,\14\ then EPA anticipates that they will
opt to use the Tier 2c method \15\ as allowed by this final rule.
Further, because EPA is also finalizing provisions today that allow the
use of BAMM in 2011, without submitting a request, there should be no
reason for an owner or operator to submit a BAMM request for recipe-
specific factors in 2011.
---------------------------------------------------------------------------
\13\ See footnote 4.
\14\ See footnote 7.
\15\ See footnote 4.
---------------------------------------------------------------------------
This paragraph summarizes the final subpart I BAMM provisions. From
January 1, 2011 through December 31, 2011, owners or operators subject
to subpart I may use BAMM for any parameter that cannot reasonably be
measured according to the monitoring and QA/QC requirements of subpart
I without submitting, and obtaining approval from, the Administrator.
Starting January 1, 2012, owners and operators must discontinue the use
of BAMM and begin following all applicable monitoring and QA/QC
requirements of subpart I unless they have submitted a request to
extend the use of BAMM and EPA has approved that request. Owners and
operators wishing to extend the use of BAMM to estimate emissions
beyond December 31, 2011, must submit a request to the Administrator no
later than October 17, 2011.
3. Summary of Comments and Responses on Apportioning Model Verification
In the proposed rule, EPA included a request for comment on the
verification requirement for facility-specific engineering models
(Sec. 98.94(c)(2)). In particular, EPA requested specific information
about whether the final rule requirement to meet the five percent
verification was overly burdensome and if so, facility-specific
examples to illustrate why. EPA also requested comment on whether
existing equipment or instrumentation can be used to measure actual gas
consumption, and the costs of using that equipment or instrumentation.
In addition, we requested comment on the specific actions a facility
would have to take to comply with the requirement, and the costs
associated with those actions. Finally, we requested comment on other
approaches that could be used to verify modeled gas consumption to a
similar level of accuracy.
In response to these requests, EPA received many comments that the
apportioning model verification requirement raises feasibility and cost
issues for facilities. One commenter noted that they had previously
raised feasibility and cost issues with continuous gas flow
measurement, which is believed to be required for the verification
requirement, when subpart I was initially proposed in April of 2009.
While the commenter recognized that the April 2009 gas measurement
requirements (74 FR 16448) differ from those for the apportioning model
verification, it asserted that many of the same feasibility and cost
issues apply. In addition, the commenter referred to the concern it
expressed with the difficulty in apportioning gas usage in comments on
the April 2010 proposed in subpart I (75 FR 74774).
Several commenters stated that facilities will need to install
hardware and software to meet the verification requirements, and even
with upgrades, it still may not be feasible to meet the verification
requirement of less than 5 percent difference between the actual and
modeled gas consumption. Another commenter elaborated further and
stated that there are limitations in using an apportioning model that
is based on nominal recipes because automated process controls used for
many newer tools depend on potentially varying operating process
parameters, and can result in differences between actual gas flow and
nominal gas flow. Another commenter stated that gases have centralized
distribution systems that supply multiple tools, and the systems do not
typically have the ability to measure the amount of gas supplied to
each individual tool. This commenter also asserted that while mass flow
controllers (MFCs) are designed to control gas flow rate at precise
levels, the MFCs do not log and integrate flow data over time to
calculate consumption. Another commenter stated that of its 212
fluorinated GHG-using tool sets, 71 do not have adequate register space
to collect the data required for gas allocation, and 15 do not have the
ability to communicate with data collection systems. One commenter also
stressed that collecting apportioning data for model verification would
be technically infeasible for older tool sets.
One commenter expressed the opinion that the verification
requirement was overly burdensome. Another commenter asserted that EPA
incorrectly assumed in its Economic Impact Assessment that facilities
already had the necessary hardware and infrastructure in place for
model verification. The commenter stated that the capability is not
currently in place and that based on an industry survey, industry will
face costs of approximately $9 million in the first year and $29
million in all subsequent years to comply with the apportioning model
verification requirement. The commenter stated that this is much higher
than EPA's estimated total compliance costs of $2.9 million for the
first year and $5.4 million for each subsequent year. One commenter
estimated that the costs for one of its facilities to upgrade to meet
the apportioning requirement, including the verification piece, would
be $0.6 million, and $3.5 million in total company costs (not including
software development and data collection and quantification labor
costs). Another commenter stated that retrofitting a facility to meet
apportioning
[[Page 59548]]
requirements, in addition to the verification piece, is estimated to
cost over $4 million.
For the above stated technical feasibility and cost reasons, and
because gas apportionment as required in the current subpart I (i.e.,
apportioning to defined process types/sub-types and recipes), may not
be required if alternative emission calculation estimation methods
(e.g., stack testing) are adopted in a future version of subpart I,
several commenters requested that EPA provide temporary relief from the
apportioning model verification requirement. (Several commenters also
referenced supporting technical information and their BAMM petitions as
evidence to support their claims against the apportioning model
verification requirements. Two commenters provided excerpts of BAMM
requests as part of their comments.) More specifically, these
commenters proposed that EPA modify subpart I so as to not require
facilities to meet the verification requirement in Sec. 98.94(c)(2)
for the time period during which the largest semiconductor facilities
are allowed to use the Tier 2c method.\16\ (Two commenters expressed
the opinion that they should still be required to meet the
repeatability requirements in Sec. 98.94(c)(1) for apportioning
models; another commenter stated that the verification should be
delayed until further study can establish a more realistic target.)
During this time, commenters noted alternative methods for verifying
gas apportioning models will also be developed. Two commenters stated
that if the relief for the apportioning model verification requirement
was not granted, but the extension for using the Tier 2c Method \17\
through 2013 was finalized, there would not be any mechanism to defer
compliance with the apportioning model verification requirement while
alternative emission estimation and reporting methods and apportioning
methods are being worked through. These commenters stated their belief
that BAMM would not be available for 2013.
---------------------------------------------------------------------------
\16\ See footnote 4.
\17\ See footnote 4.
---------------------------------------------------------------------------
One commenter described an alternative method to accomplish
verification for apportioning gas consumption. The commenter explained
that an allocation process to determine the percent of each gas type
used in each process type/sub-type may be used. This percentage would
then be applied to the total amount of each gas consumed to determine
the amount of gas consumed for each process type/sub-type. The
allocation process would be detailed in a facility site GHG monitoring
plan and would be available for EPA review and inspection. The
commenter further asserted that this process will be most relevant to
etch process sub-types (which represent 15 percent to 35 percent of gas
consumption at a facility). The commenter expressed the opinion that
the allocation process provides adequate support for validating the gas
allocation methodology. The commenter stated that they are working with
other members of industry to develop alternatives to the apportioning
model verification requirement, such as raising the current 5 percent
verification level or specifying facility specific metrics on which an
apportioning model must be based in a final regulation.
EPA appreciates the information provided by commenters on technical
and cost issues associated with the apportioning model verification
requirement. EPA also recognizes that if the Agency were to revise
subpart I to include stack testing as an option for the largest
semiconductor manufacturing facilities to estimate their fluorinated
GHG emissions, an apportioning model as currently required in subpart I
to apportion gas to different process types/sub-types and recipes, may
not be required to estimate and report GHG emissions for facilities
choosing the stack testing option. However, EPA did not propose to add
any new methods to subpart I as part of the current rulemaking, and
thus there was no need for the Agency to consider how such new methods
might affect other aspects of the rule. Further, the Agency did not
propose alternative methods for apportioning model verification, as it
had not had an opportunity to evaluate alternatives. However, the BAMM
process should be adequate for resolving facility's concerns about
compliance with the apportioning model verification requirement during
the interim period addressed by this rule. Therefore, EPA is not taking
action today to amend the apportioning model verification requirement;
however, EPA may consider doing so in future.
EPA believes that apportioning is a particularly important
component in estimating emissions of fluorinated GHGs from electronics
manufacturing. Emission estimates, as required to be calculated in
subpart I, are based on consumption of fluorinated GHGs for specific
process types/sub-types or recipes and assigned emission factors to
each process type/sub-type or recipe. Hence, there are two main sources
of error in emissions estimates: (1) Errors associated with emission
factors, and (2) errors associated with the consumption of gas by
process type/sub-type or recipe. An accurate and precise estimate of
emissions does not only rely on using robust emission factors but also
on accurate estimates of gas consumption.
EPA understands that there are multiple ways to monitor and model
gas consumption. For this reason, in finalizing subpart I in December
2010, EPA provided flexibility for facilities to use different metrics
for the engineering model to develop apportioning factors, and only
required that the model be based on a quantifiable metric. Because of
this flexibility, and to ensure consistency between reporting
facilities, EPA required apportioning model verification. Nevertheless,
EPA is sensitive to the issues raised by commenters about apportioning
model verification and understands these issues may impact a facility's
ability to comply. Therefore, if a facility is unable to meet the
existing apportioning verification requirements in 40 CFR 98.94(c)(2),
the owner or operator may use and/or apply for BAMM as discussed in the
following paragraphs.
Under the existing subpart I BAMM provisions, a facility may use
and/or apply to use BAMM to verify facility-specific engineering models
as required under 40 CFR 98.94(c)(2). As finalized in today's rule, an
owner or operatory may, without submitting and receiving approval from
the Administrator , use BAMM in 2011 for verifying facility-specific
engineering models. Owners and operators wishing to extend the use of
BAMM beyond December 31, 2011 for apportioning model verification must
submit a request for approval to the Administrator by October 17, 2011.
As explained in Section II.A of this preamble, the BAMM extension
provisions do not impose an end date: for example, they do not state
that extensions are limited to 2012. A facility wishing to apply for
BAMM for both 2012 and 2013 should include both years in its request.
EPA does not anticipate approving the use of BAMM beyond the time that
EPA promulgates a final rule with alternative methodologies (i.e.,
January 1, 2014).
EPA only received a small number of requests, as compared the
number of facilities expected to report under subpart I, to use BAMM to
comply with the apportioning model verification requirements in 40 CFR
98.94(c)(2) during 2011. For this reason EPA has concluded that while
some facilities are unable to meet the requirements for apportioning
model verification, the problem is limited. Therefore, EPA believes
that the BAMM process, which considers individual facilities'
[[Page 59549]]
circumstances, is an appropriate mechanism for addressing concerns with
this aspect of the rule through 2013.
EPA appreciates the alternative apportioning method to accomplish
verification provided by one commenter. The Agency would like to work
with the commenter to better understand the details of the method. In
addition, EPA also understands that the industry will be working to
develop alternative apportioning approaches as part of the development
of alternatives to the recipe-specific factor method. EPA plans to
undertake a comprehensive evaluation of those alternatives. The Agency
may consider whether to propose an alternative approach for
apportioning model verification in the future.
4. Summary of Comments and Responses on Abatement System Uptime
Although EPA's proposal did not include either a request for
comment on the final subpart I provisions for monitoring abatement
system uptime or a proposal for alternative methodologies, EPA received
comments from four entities on the abatement system uptime provisions.
In general, commenters asserted that facilities do not currently track
uptime as required by the rule. These commenters proposed an
alternative methodology for monitoring and calculating uptime based on
the fraction of the time the abatement system is operating during the
reporting year, as opposed to based on tracking time in which gas is
flowing per the final subpart I requirements.
The comments that EPA received on abatement system uptime are
outside the scope of the rule. Because EPA did not propose an
alternative methodology for monitoring abatement system uptime, EPA is
not taking action at this time to amend the requirements in the final
subpart I provisions. However, the Agency intends to review concerns
about the existing requirements for monitoring abatement system uptime
and evaluate the alternative methodologies suggested by commenters. EPA
may consider whether to propose an alternative approach to monitoring
and estimating uptime for abatement systems in the future.
If a facility wishes to calculate and report controlled fluorinated
GHG and N2O emissions from the use of abatement systems, and
they are unable to meet the subpart I requirements for monitoring
abatement system uptime, then they can use and/or apply for the use of
BAMM. As finalized in today's rule, 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 through
December 31, 2011. Owners and operators wishing to extend the use of
BAMM to estimate emissions that occur beyond December 31, 2011 must
submit a request to the Administrator no later than October 17, 2011
and receive approval from the Administrator. It is important to note
that if a facility uses BAMM to comply with the requirements to monitor
uptime, then the facility must estimate its emissions using the
abatement system uptime calculation methodologies and equations in
subpart I (e.g., Equation I-15 of subpart I), but may use alternative
means of estimating the inputs to those equations.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
These amendments do not make any substantive changes to the reporting
requirements in the subpart for which amendments are being proposed.
The amendments to the reporting requirements reduce the reporting
burden by allowing reporters to use default values instead of recipe-
specific values for the three reporting years (2011, 2012, and 2013).
In addition, this final rule extends two of the deadlines in the
subpart I provisions related to best available monitoring methods. The
Office of Management and Budget (OMB) has previously approved the
information collection requirements contained in the existing
regulations, 40 CFR part 98, subpart I (75 FR 74774, December 1, 2010),
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2060-0650. The OMB control
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of these amendments on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of these rule amendments on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
As part of the process for finalization of the subpart I rule (75
FR 74774, December 1, 2010), EPA undertook specific steps to evaluate
the effect of that final rule on small entities. Under that final rule
for subpart I, EPA assessed the potential impacts of the final
requirements on small entities using a sales test, defined as a ratio
of total annualized compliance costs to firm sales. The results of that
screening analysis, as detailed in the preamble to the final rule for
subpart I, demonstrated that there are no significant impacts to a
substantial number of small entities. The results of that analysis can
be found in the preamble to the final rule (75 FR 74774).
[[Page 59550]]
The rule amendments will reduce the burden for the largest
semiconductor manufacturing facilities by providing flexibility during
the first three years of compliance. In addition, the rule provides
additional flexibility to those facilities that are using and/or
applying for the use of best available monitoring methods by extending
two deadlines. The action does not impose any new requirements on
regulated entities.
D. Unfunded Mandates Reform Act (UMRA)
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. Federal
agencies must also develop a plan to provide notice to small
governments that might be significantly or uniquely affected by any
regulatory requirements. The plan must enable officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates and must inform, educate, and advise small
governments on compliance with the regulatory requirements.
This action does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
Thus, the rule amendments are not subject to the requirements of
section 202 and 205 of the UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. Facilities subject
to the rule include only manufacturers of microcomputers,
semiconductors, photovoltaic devices, liquid crystal display units, and
micro-electro-mechanical systems. None of the facilities known to
undertake these activities is owned by a small government. Therefore,
this action is not subject to the requirements of section 203 of the
UMRA.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.
These amendments apply directly to facilities that use and emit
fluorinated GHGs in the manufacture of certain electronic devices. They
do not apply to governmental entities because no government facilities
undertake these activities. This regulation also does not limit the
power of States or localities to collect GHG data and/or regulate GHG
emissions. Thus, Executive Order 13132 does not apply to this action.
Although section 6 of Executive Order 13132 does not apply to this
action, EPA did consult with State and local officials or
representatives of State and local governments in developing subpart I
promulgated on December 1, 2010. A summary of EPA's consultations with
State and local governments is provided in Section VIII.E of the
preamble to the 2009 final Part 98 (74 FR 56371).
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). The rule
amendments would not result in any additional requirements beyond what
is currently required in 40 CFR part 98 subpart I. Thus, Executive
Order 13175 does not apply to this action.
Although Executive Order 13175 does not apply to this action, EPA
sought opportunities to provide information to tribal governments and
representatives during the development of subpart I promulgated on
December 1, 2010. A summary of EPA's consultations with tribal
officials is provided in Sections VIII.E and VIII.F of the preamble to
the 2009 final Part 98 (74 FR 56260) and Section IV.F of the preamble
to the 2010 final rule notice for subpart I (75 FR 74814).
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 those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001), because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113 (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Any technical
standards that are required under subpart I were already included in
promulgation of the final subpart I provisions on December 1, 2011 (75
FR 74774). Therefore, EPA is not considering the use of any voluntary
consensus standards in this action.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it does not affect the level of
protection provided to human health or the environment because it is a
rule addressing information collection and reporting procedures.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
[[Page 59551]]
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 U.S. prior to
publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published 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 on September 30, 2011.
Mandatory Reporting of Greenhouse Gases: Changes to Provisions for
Electronics Manufacturing (Subpart I) to Provide Flexibililty
List of Subjects in 40 CFR Part 98
Environmental Protection, Administrative practice and procedures,
Air pollution control, Monitoring, Reporting and recordkeeping.
Dated: September 16, 2011.
Lisa P. Jackson,
Administrator.
For the reasons stated 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, et seq.
Subpart I--[Amended]
0
2. Section 98.93 is amended by revising paragraph (a)(2)(ii)
introductory text to read as follows:
Sec. 98.93 Calculating GHG emissions.
(a) * * *
(2) * * *
(ii) If your facility has an annual manufacturing capacity of
greater than 10,500 m\2\ of substrate, as calculated using Equation I-5
of this subpart, you must adhere to the procedures in paragraphs
(a)(2)(ii)(A) through (a)(2)(ii)(C) of this section, except that you
may use the procedures specified in paragraph (a)(2)(i) of this section
for the 2011, 2012, and 2013 reporting years.
* * * * *
0
3. Section 98.94 is amended by revising paragraph (a)(1) introductory
text and paragraph (a)(4)(i) to read as follows:
Sec. 98.94 Monitoring and QA/QC requirements.
(a) * * *
(1) Best available monitoring methods. From January 1, 2011 through
December 31, 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 January 1, 2012, 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:
* * * * *
(4) * * *
(i) Timing of request. The extension request must be submitted to
EPA no later than October 17, 2011.
* * * * *
[FR Doc. 2011-24364 Filed 9-26-11; 8:45 am]
BILLING CODE 6560-50-P