[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]]

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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.

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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
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                    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.
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    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\
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    \1\ For more information, see SIA's petition in the docket, EPA-
HQ-OAR-2009-0927.
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    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)).
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    \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.
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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\
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    \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.
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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.
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    \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.
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    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.
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    \5\ See footnote 4.
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    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.
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    \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.
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    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.
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    \9\ See footnote 4.
    \10\ See footnote 7.
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    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.
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    \11\ See footnote 4.
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    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