2011-15650. Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated GHGs: Extension of Best Available Monitoring Provisions for Electronics Manufacturing

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; Grant of reconsideration.

SUMMARY:

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

DATES:

This final rule is effective on June 30, 2011.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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

BAMM Best Available Monitoring Methods

CAA Clean Air Act

CBI confidential business information

CFR Code of Federal Regulations

EPA U.S. Environmental Protection Agency

FR Federal Register

GHG greenhouse gas

mm millimeters

NTTAA National Technology Transfer and Advancement Act of 1995

PRA Paperwork Reduction Act

QA/QC quality assurance/quality control

RFA Regulatory Flexibility Act

SIA Semiconductor Industry Association

SBREFA Small Business Regulatory Enforcement Fairness Act

UMRA Unfunded Mandates Reform Act of 1995

U.S. United States

WWW Worldwide Web

Table of Contents

I. Background Information

II. Statutory and Executive Order Reviews

A. General Requirements

B. Submission to Congress and the Comptroller General

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

I. Background Information

EPA published Subpart I: Electronics Manufacturing of the Greenhouse Gas Reporting Rule on December 1, 2010 (75 FR 74774). This subpart requires monitoring and reporting of greenhouse gas (GHG) emissions from electronics manufacturing. Included in the December 1, 2010 final rule are provisions allowing owners or operators of semiconductor manufacturing facilities the option of using and/or requesting the use of best available monitoring methods (BAMM) for specified parameters. Specifically, from January 1, 2011 to June 30, 2011, owners or operators may use BAMM for any parameter that cannot reasonably be measured according to the monitoring and QA/QC requirements of Subpart I without submitting a request to and receiving approval from the Administrator (40 CFR 98.94(a)(1)). To extend the use of BAMM to estimate emissions that occur beyond June 30, 2011, the December 1, 2010 final rule provides that owners and operators must submit a request to and receive approval from the Administrator consistent with the following:

• Requests for extension of the use of BAMM to estimate emissions that occur from July 1, 2011 through December 31, 2011 for parameters other than recipe-specific utilization and by-product formation rates for the plasma etching process type must have been submitted to EPA no later than February 28, 2011 (40 CFR 98.94(a)(2)).
• Requests for extension of the use of BAMM to estimate emissions that occur from July 1, 2011 through December 31, 2011 for recipe-specific utilization and by-product formation rates for the plasma etching process type must be submitted to EPA no later than June 30, 2011 (40 CFR 98.94(a)(3)).
• Requests for extension of the use of BAMM to estimate emissions beyond December 31, 2011 for unique and extreme circumstances must be submitted to EPA no later than June 30, 2011 (40 CFR 98.94(a)(4)).

Following the publication of subpart I in the Federal Register, the Semiconductor Industry Association (SIA) sought reconsideration of several provisions in the final rule, including the provisions relating to BAMM. In its Petition for Reconsideration dated January 31, 2011 (available in docket EPA-HQ-OAR-2009-0927), SIA stated that the BAMM provisions raise “substantive compliance issues.” In particular, SIA stated that the substantive compliance issues relate to the following aspects of the BAMM provisions: The requirement to recalculate and resubmit estimated emissions, the individual requirement-by-requirement BAMM request process, the documentation requirement, the timeframe for assembling the documentation, and the unique and extreme circumstances provision. More specifically, SIA stated that the individual requirement-by-requirement BAMM request process is cumbersome and unreasonably burdensome, and that the required documentation to support the request is excessive. Further, SIA stated that the deadlines for submitting the request to use BAMM were “unreasonable.” In particular, SIA stated that the June 30, 2011 deadline for the recipe-specific utilization and by-product formation rates was “not realistic” due to “serious technical infeasibility issues.” SIA also noted that the individuals who would be responsible for analyzing Subpart I, gathering information, and preparing the BAMM requests were the same individuals who would be working with EPA “towards mutually acceptable solutions and alternatives.”

EPA has concluded that pursuant to CAA section 307(d)(7)(B) it is appropriate to extend by three months the period in 40 CFR 98.94(a)(1), during which owners and operators have the option to use BAMM in 2011 without submitting a request for approval from the Administrator. EPA has also concluded that pursuant to CAA section 307(d)(7)(B) it is appropriate to extend by three months the deadlines in 40 CFR 98.94(a)(3)(i) and 98.94(a)(4)(i), by which owners and operators may submit a request for approval by the Administrator to use BAMM in 2011 for recipe-specific utilization and by-product formation rates (recipe-specific emission factors) for the plasma etching process type, and to use BAMM to estimate emissions that occur beyond December 31, 2011 for unique and extreme circumstances, respectively. Extending the deadlines will allow EPA additional time to consider comments and take final action on a proposal that EPA is also publishing today, as discussed in more detail in the following paragraphs.

In a separate action also published in today's Federal Register (please refer to the proposed rule Mandatory Reporting of Greenhouse Gases: Changes to Provisions for Electronics Manufacturing (Subpart I) to Provide Flexibility in docket EPA-HQ-OAR-2009-0927), EPA is proposing to allow the largest semiconductor facilities the option of calculating emissions using default utilization and by-production formation rates (default emission factors) already contained in Subpart I for the plasma etching process type for a limited time period instead of calculating emissions using directly measured recipe-specific emission factors during that time period.^[1] The December 1, 2010 final rule provides that the largest semiconductor manufacturing facilities are required to calculate emissions for the plasma etching process type using only directly measured recipe-specific emission factors. Other semiconductor manufacturing facilities that manufacture wafers on 300 millimeters (mm) or less in diameter are required to calculate emissions for the plasma etching process type using default emission factors provided in Tables I-3 and I-4 of Subpart I.

In the separate action also published in today's Federal Register, EPA is proposing to allow the largest semiconductor facilities to use the same default emission factors already used by the other semiconductor manufacturing facilities that manufacture wafers on 300 mm or less in diameter during the initial years of implementation of Subpart I in response to concerns raised by SIA in their Petition for Reconsideration regarding the individual recipe measurement approach, that is, the requirement that the largest facilities develop and use recipe-specific emission factors for etch processes. More specifically, in their Petition, SIA stated that the individual recipe measurement approach is technically impractical, burdensome, threatens intellectual property, and would hamper innovation. SIA also stated its member companies' “strong desire to reach agreement with EPA on an alternative” to that measurement approach. By extending the dates by which a facility may use and/or request the use of BAMM in today's final action, EPA will have additional time to consider comments and take final action on provisions in the separate action to allow the largest semiconductor manufacturing facilities to use the default emission factors already contained in Subpart I in the initial years of implementation. In turn, this will provide a clear, consistent approach to compliance with Subpart I while EPA considers longer-term alternatives.

In today's final rule, EPA is taking no action on other issues raised by SIA in their Petition for Reconsideration. EPA is also taking no action at this time on issues raised by 3M Company in their January 28, 2011 Petition for Reconsideration of Subpart I.

Pursuant to Clean Air Act (CAA) section 307(d)(7)(B), EPA is extending the deadlines in 40 CFR 98.94(a)(1), 40 CFR 98.94(a)(3)(i), and 40 CFR 98.94(a)(4)(i) for three months; i.e., until September 30, 2011.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment. We are acting pursuant to CAA section 307(d)(7)(B) to extend these deadlines in part because we are considering a change to Subpart I, which would obviate the need to conduct a BAMM process for this aspect of the rule. In addition, we are extending these provisions to allow owners and operators of affected facilities additional time to assess their facilities to determine if it will be necessary for them to apply for BAMM for any other aspect of Subpart I beyond 2011 for unique and extreme circumstances. Because we cannot predict the outcome of today's proposed rule, we have concluded that a limited extension pending final action on that proposal is appropriate so that owners and operators of affected facilities would not incur additional costs associated with applying for BAMM in advance of our final decision on this issue. It would be impracticable to go through notice and comment rulemaking to extend an imminent deadline, and it is also unnecessary because section 307(d)(7)(B) does not require notice and comment for a three-month extension pending reconsideration. Thus, notice and public procedure are impracticable and unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B) in this instance.

II. Statutory and Executive Order Reviews

A. General Requirements

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

B. Submission to Congress and the Comptroller General

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

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

This Federal Register notice is available in the docket for the final rule titled “Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated GHGs,” published on December 1, 2010 at 98 FR 74774, under Docket ID No. EPA-HQ-OAR-2009-0927.

All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA's Docket Center, Docket ID No. EPA-HQ-OAR-2009-0927, Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Avenue, Northwest, Washington, DC 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Air Docket Center is [phone].

In addition to being available in the docket, an electronic copy of this Federal Register notice is also available on the World Wide Web at http://www.epa.gov/​climatechange/​emissions/​ghgrulemaking.html.

List of Subjects in 40 CFR Part 98

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

Dated: June 15, 2011.

Lisa P. Jackson,

Administrator.

For the reasons discussed in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:

PART 98—[AMENDED]

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

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

Subpart I—[Amended]

2. Section 98.94 is amended as follows:

a. By revising paragraph (a)(1) introductory text.

b. By revising paragraph (a)(3) introductory text.

c. By revising paragraph (a)(3)(i).

d. By revising paragraph (a)(4)(i).

§ 98.94

Monitoring and QA/QC requirements.

(a) * * *

(1) Best available monitoring methods. From January 1, 2011 through September 30, 2011, owners or operators may use best available monitoring methods for any parameter that cannot reasonably be measured according to the monitoring and QA/QC requirements of this subpart. The owner or operator must use the calculation methodologies and equations in § 98.93, but may use the best available monitoring method for any parameter for which it is not reasonably feasible to acquire, install, or operate a required piece of monitoring equipment in a facility, or to procure necessary measurement services by January 1, 2011. Starting no later than October 1, 2011, the owner or operator must discontinue using best available monitoring methods and begin following all applicable monitoring and QA/QC requirements of this part, except as provided in paragraphs (a)(2), (a)(3), or (a)(4) of this section. Best available monitoring methods means any of the following methods specified in this paragraph:

* * * * *

(3) Requests for extension of the use of best available monitoring methods in 2011 for recipe-specific utilization and by-product formation rates for the plasma etching process type under § 98.93(a)(2)(ii)(A). The owner or operator may submit a request to the Administrator under this paragraph (a)(3) to use one or more best available monitoring methods to estimate emissions that occur between October 1, 2011 and December 31, 2011 for recipe-specific utilization and by-product formation rates for the etching process type under § 98.93(a)(2)(ii)(A).

(i) Timing of request. The extension request must be submitted to EPA no later than September 30, 2011.

* * * * *

(4) * * *

(i) Timing of request. The extension request must be submitted to EPA no later than September 30, 2011.

* * * * *

Footnotes

1.  The “largest” semiconductor manufacturing facilities are defined as those facilities that fabricate devices on wafers measuring 300 mm or less in diameter and that have an annual manufacturing capacity of greater than 10,500 square meters (m2. ) of substrate. EPA estimates that the largest semiconductor manufacturing facilities comprise 29 facilities out of 175 total semiconductor facilities. See the Electronics Manufacturing Technical Support Document available in the docket (EPA-HQ-OAR-2009-0927) for EPA's analysis.