
[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Proposed Rules]
[Pages 36472-36479]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15651]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 98

[EPA-HQ-OAR-2009-0927; FRL-9322-2]
RIN A2060


Mandatory Reporting of Greenhouse Gases; Changes to Provisions 
for Electronics Manufacturing (Subpart I) To Provide Flexibility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing changes to the calculation and monitoring 
provisions in the Electronics Manufacturing portion (Subpart I) of the 
Mandatory 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 and 2012 
this action proposes to allow the largest semiconductor facilities the 
option to calculate emissions using default emission factors already 
contained in Subpart I, instead of recipe-specific utilization and by-
product formation rates (recipe-specific emission factors) for the 
plasma etching process type. These proposed changes are in response to 
a request for reconsideration of specific provisions submitted by the 
Semiconductor Industry Association. This action would only apply to the 
initial years of compliance while the Agency continues to better 
understand industry's concerns with Subpart I and considers longer-term 
alternative options.

DATES: Comments. Comments must be received on or before July 22, 2011.
    Public Hearing. EPA does not plan to conduct a public hearing 
unless requested. To request a hearing, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section by June 29, 2011. 
If requested, the hearing will be conducted July 7, 2011, in the 
Washington, DC area. If a hearing is held, EPA will accept comments 
that rebut or supplement information presented at the hearing through 
August 8, 2011. EPA will provide further information about the hearing 
on its Web page if a hearing is requested.

ADDRESSES: You may submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2009-0927 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     E-mail: GHGReportingFGHG@epa.gov. Include docket ID No. 
EPA-HQ-OAR-2009-0927 [and/or RIN number 2060-XXXX] in the subject line 
of the message.
     Fax: (202) 566-9744.
     Mail: Environmental Protection Agency, EPA Docket Center 
(EPA/DC), Mailcode 28221T, Attention Docket ID No. EPA-HQ-OAR-2009-
0927, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand/Courier Delivery: EPA Docket Center, Public Reading 
Room, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., 
Washington, DC 20004. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0927. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: 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., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in 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.

[[Page 36473]]


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: 
GHGReportingRule@epa.gov. 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. To obtain information 
about the public hearing or to register to speak at the hearing, please 
go to http://www.epa.gov/climatechange/emissions/ghgrulemaking.html. 
Alternatively, contact Carole Cook at 202-343-9263.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of this proposal will also be available through the 
WWW. Following the Administrator's signature, a copy of this action 
will be posted on EPA's Greenhouse Gas Reporting Program Web site at 
http://www.epa.gov/climatechange/emissions/ghgrulemaking.html.

SUPPLEMENTARY INFORMATION:
    Additional Information on Submitting Comments: To expedite review 
of your comments by Agency staff, you are encouraged to send a separate 
copy of your comments, in addition to the copy you submit to the 
official docket, to Carole Cook, U.S. EPA, Office of Atmospheric 
Programs, Climate Change Division, Mail Code 6207-J, Washington, DC 
20460, telephone (202) 343-9263, e-mail address: 
GHGReportingRule@epa.gov.
    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 
proposed changes to existing regulations. If finalized, these amended 
regulations would 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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                                                  Examples of affected
             Category                 NAICS            facilities
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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 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, subpart I or the 
relevant criteria in the sections related to electronics manufacturing. 
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.
    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
EO.....................................  Executive Order
EPA....................................  U.S. Environmental Protection
                                          Agency
FR.....................................  Federal Register
GHG....................................  greenhouse gas
m\2\...................................  square meters
mm.....................................  millimeter
OMB....................................  Office of Management and Budget
RFA....................................  Regulatory Flexibility Act
RIA....................................  Regulatory Impact Analysis
SBA....................................  Small Business Administration
SBREFA.................................  Small Business Regulatory
                                          Enforcement and Fairness Act
U.S....................................  United States
UMRA...................................  Unfunded Mandates Reform Act of
                                          1995
USC....................................  United States Code
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Table of Contents

I. Background
    A. Organization of This Preamble
    B. Background on This Action
    C. Legal Authority
II. Proposed Revisions to Subpart I of 40 CFR part 98
    A. Proposed Changes to Subpart I Provisions for the Largest 
Semiconductor Manufacturing Facilities
    B. Subpart I BAMM Provisions
    C. Apportioning Model Verification
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

I. Background

A. Organization of This Preamble

    The first section of this preamble contains the basic background 
information about the origin of these proposed rule amendments and 
request for public comment. This section also discusses EPA's use of 
our legal authority under the Clean Air Act to collect data under the 
Mandatory Reporting of Greenhouse Gases rule.
    The second section of this preamble describes in detail the changes 
that are being proposed to Subpart I. In addition, this section 
presents EPA's rationale for the proposed changes, and also describes 
related actions affecting Subpart I that are published in a separate 
notice in today's Federal Register.
    Finally, the last (third) section of the preamble discusses the 
various statutory and executive order requirements applicable to this 
proposed rulemaking.

B. Background on This Action

    On October 30, 2009, EPA published a rule for the mandatory 
reporting of GHGs (also referred to as 40 CFR part 98 or part 98) from 
large GHG emission sources and suppliers in the United States (74 FR 
56260). The rule requires annual reporting to EPA of GHG emissions and 
supply from certain sectors of the economy, and applies to certain 
downstream facilities that emit GHGs, as well as to certain upstream

[[Page 36474]]

suppliers of products that will result in GHG emissions when combusted, 
released or oxidized. Part 98 regulations require only that source 
categories subject to the rule monitor and report GHGs in accordance 
with the methods specified in the individual subparts.
    EPA initially proposed reporting requirements for electronics 
manufacturing on April 12, 2009 (74 FR 16448) as part of a larger 
rulemaking effort to establish a GHG reporting program for all sectors 
of the economy. However, EPA did not include requirements for 
electronics manufacturing, along with several other source categories, 
in the final part 98 in October 2009 because EPA received a number of 
lengthy, detailed comments regarding the proposed requirements.
    On April 12, 2010, EPA published a revised proposal (75 FR 18652) 
concerning the monitoring and reporting methods for electronics 
manufacturing facilities. After considering public comments on the 
revised proposal, EPA published Subpart I: Electronics Manufacturing of 
the Greenhouse Gas Reporting Rule on December 1, 2011 (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 millimeters (mm) or less in diameter to calculate and report their 
fluorinated GHGs, depending on the facility's manufacturing capacity: 
(1) A method for facilities that have an annual manufacturing capacity 
that is less than or equal to 10,500 square meters (m\2\) of substrate 
(hereinafter referred to as ``other semiconductor manufacturing 
facilities''), and (2) a method for those that have an annual 
manufacturing capacity greater than 10,500 m\2\ of substrate 
(hereinafter referred to as the ``largest semiconductor manufacturing 
facilities''). Pursuant to 40 CFR 98.93(a)(2)(i), semiconductor 
manufacturing facilities that fabricate devices on wafers measuring 300 
mm or less in diameter and that have an annual manufacturing capacity 
of less than or equal to 10,500 m\2\ of substrate 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.
    Pursuant to 40 CFR 98.93(a)(2)(ii), semiconductor manufacturing 
facilities that fabricate devices on wafers measuring 300 mm or less in 
diameter and that have an annual manufacturing capacity greater than 
10,500 m\2\ of substrate (i.e., 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.
    EPA also included provisions for all electronics manufacturing 
facilities to use and/or request the use of best available monitoring 
methods (BAMM) in lieu of following specified parameters for 
calculating GHG emissions for a specific period of time. To estimate 
emissions from January 1, 2011 through 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 and receiving approval from the EPA 
Administrator (40 CFR 98.94(a)(1)). To extend the use of BAMM to 
estimate emissions that occur beyond June 30, 2011, owners and 
operators must submit a request 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. In particular, in their Petition 
(available in docket EPA-HQ-OAR-2009-0927), SIA raised concerns about 
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, SIA stated that the 
individual recipe measurement approach is technically impractical, 
burdensome, threatens intellectual property, and would hamper 
innovation. SIA stated, ``* * * Final Subpart I suffers from serious 
flaws relating to the infeasibility of compliance with a recipe-based 
emission reporting requirement; the incompatibility of a recipe-based 
emission reporting requirement to the semiconductor manufacturing 
process; the serious confidentiality concerns relating to the sharing 
of intellectual property inherent to a recipe-based reporting 
requirement; and the grossly understated compliance costs contained in 
EPA's economic analysis.''
    SIA reported that a manufacturer may run hundreds to thousands of 
different recipes per year. They argued that determining the 
utilization and by-product formation rates for each recipe would 
present an unreasonable cost and technical burden on reporting 
facilities. They also argued that the burden is compounded by the fact 
that hundreds of recipes may be added every year, for which new factors 
would need to be determined. To support their arguments, SIA provided 
the results of a survey of industry members regarding the number of 
recipes for which factors would need to be determined, and a cost 
estimate of the final reporting requirements (for more information, 
please see SIA's Petition for Reconsideration available in docket EPA-
HQ-OAR-2009-0927).
    In addition to their concerns about the recipe-specific 
measurements, SIA also specifically cited the BAMM provisions and their 
timing as problematic. In particular, SIA stated that the BAMM 
provisions raise ``substantive compliance issues.'' SIA stated that the 
substantive compliance issues relate to the following aspects of the 
BAMM provisions: The requirement to recalculate and resubmit estimated

[[Page 36475]]

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. 
Further, SIA stated that the deadlines for submitting the request to 
use BAMM were ``unreasonable.''

C. Legal Authority

    EPA is proposing these rule amendments under its existing CAA 
authority, specifically authorities provided in CAA section 114.
    As stated in the preamble to the 2009 final rule (74 FR 56260) 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 rule (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 rules and EPA's Response to Comments, Volume 9.\1\
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    \1\ 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. Proposed Revisions to Subpart I of 40 CFR part 98

A. Proposed Changes to Subpart I Provisions for the Largest 
Semiconductor Manufacturing Facilities

    In this action, EPA is proposing to amend Subpart I to allow the 
largest semiconductor manufacturing facilities \2\ flexibility in the 
initial years of compliance to estimate fluorinated GHG emissions from 
the plasma etching process type. Specifically, EPA is proposing to 
amend 40 CFR 98.93(a)(2)(ii) so that the largest semiconductor 
manufacturing facilities may use the same methods for estimating 
emissions from clean and etch processes as the other semiconductor 
manufacturing facilities for reporting years 2011 and 2012. EPA is 
proposing this action in response to a request for reconsideration of 
specific provisions, including the provisions requiring the largest 
facilities to use recipe-specific emission factors and the BAMM 
provisions.
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    \2\ 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 m\2\ of substrate.
---------------------------------------------------------------------------

    Under this proposal, for reporting years 2011 and 2012, the largest 
semiconductor manufacturing facilities would be able to use 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 for each individual recipe or set of 
similar recipes.\3\ This proposed modification to the calculation and 
monitoring requirements for the largest semiconductor manufacturing 
facilities would not change any of the other provisions in Subpart I 
that semiconductor manufacturing facilities are required to follow for 
calculating GHG emissions. Further, EPA is proposing to provide 
flexibility for a limited time while the Agency continues to explore 
and evaluate industry's concerns with Subpart I and considers 
alternative methods that are being proposed by the industry as 
discussed in more detail in paragraphs below.
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    \3\ 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.
---------------------------------------------------------------------------

    The proposed change in 40 CFR 98.93(a)(2)(ii) to the method used by 
the largest semiconductor manufacturing facilities would not affect the 
number of facilities that report, and would not affect the GHG 
emissions that are covered by the Subpart I reporting requirements. It 
would provide greater flexibility to the largest facilities in the 
initial two years of implementation of Subpart I. Under this proposal, 
beginning in the 2013 reporting year, the largest facilities would be 
required to use recipe-specific utilization and by-product formation 
rates as specified in 40 CFR 98.93(a)(2)(ii)(A).
    Pursuant to provisions in Subpart I, any semiconductor 
manufacturing facility subject to Subpart I may use and/or request to 
use BAMM (40 CFR 98.94(a)). Under the BAMM provisions in Subpart I, any 
owner and operator that uses BAMM must follow the calculation 
methodologies and equations in Subpart I (40 CFR 98.93), but may use 
BAMM for specific parameters and for a specific time period for which 
it is approved. EPA included this flexibility in the final rule for 
those facilities that are unable to meet the monitoring and/or QA/QC 
provisions in Subpart I by January 1, 2011.
    EPA believes that the changes being proposed today to the 
calculation methodologies for the largest semiconductor manufacturing 
facilities are preferable to relying on the BAMM process to address 
concerns with the recipe-specific emission factors for the plasma 
etching process type during 2011 and 2012. First, adopting these 
changes would reduce burden for such facilities and for EPA. In other 
words, rather than requiring each owner and operator to prepare and 
submit a BAMM request to EPA to use BAMM for the directly measured 
recipe-specific emission factors, EPA is proposing to allow those 
facilities to use default emission factors during the initial years of 
compliance. Second, it would make transparent the methodology that 
would apply to the largest facilities in 2011 and 2012, which would not 
necessarily occur if each facility were using their own facility-
specific BAMM.
    This proposed change would apply only for 2011 and 2012. During 
this time, EPA will continue to better understand and evaluate 
industry's concerns with Subpart I. In addition, EPA will also consider 
alternatives to the use of recipe-specific emission factors by the 
largest facilities that have been proposed by the industry.
    In a letter dated May 26, 2011 (available in docket EPA-HQ-OAR-
2009-0927), SIA identified the following three alternatives that they 
are proposing 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 Efficiency 
(DRE); and, (3) Stack Testing. For more information on the three 
options, please refer to SIA's letter (available in docket EPA-HQ-OAR-
2009-0927).
    As stated in their letter, ``SIA and its member companies, in 
collaboration with technical support from the International Sematech 
Manufacturing Initiative (ISMI), are implementing a workplan under a 
robust schedule to collect and analyze data on each proposed 
alternative.'' SIA noted that they plan to submit information to EPA, 
including data and analyses, on the proposed alternatives beginning in 
June 2011, July 2011, and September 2011, depending on the alternative.

[[Page 36476]]

    After SIA provides EPA with initial data to support the development 
of the three alternatives, EPA plans to undertake comprehensive 
analyses to evaluate whether the methodologies meet EPA's stated goals. 
One of those goals is to gather facility-level emissions estimates for 
the largest semiconductor manufacturing facilities that are more 
precise and accurate than the estimates developed using the method that 
is required for the other semiconductor facilities, thereby ensuring 
the level of rigor is commensurate with potential to emit. While EPA is 
open to evaluating the three options that SIA has proposed, at this 
time, EPA has not made any decisions about which alternatives may be 
included in a subsequent action.
    EPA requests comment on whether to extend the use of the default 
emission factors for the plasma etching process type for the largest 
semiconductor facilities beyond December 31, 2012. More specifically, 
EPA is requesting comment on whether to allow the largest semiconductor 
manufacturing facilities to use the method required for the other 
semiconductor manufacturing facilities for an additional year until 
December 31, 2013. EPA is requesting comment on this extension in the 
event that the Agency determines that additional time would be 
necessary to develop and promulgate one or more alternative 
methodologies for the largest semiconductor manufacturing facilities 
that continue to have concerns with the recipe-specific measurement 
approach. While it is EPA's goal to finalize a revision to Subpart I 
that would allow the largest semiconductor manufacturing facilities to 
implement one or more alternative methodologies on January 1, 2013, EPA 
is considering whether additional time may be necessary given the 
technical complexities associated with the development of alternatives.
    In a separate action also published in today's Federal Register, 
EPA is extending three of the deadlines contained in the Subpart I BAMM 
provisions that relate to when owners and operators may use or request 
to use BAMM from June 30, 2011 to September 30, 2011. As EPA explains 
in the preamble to that action, extending the dates by which owners and 
operators may use and/or request to use BAMM will allow EPA additional 
time to consider comments and take final action on this proposal to 
allow the largest semiconductor manufacturing facilities to use default 
emission factors for the plasma etching process type during the initial 
years of implementation. In addition, the extension allows 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. For more information, please refer to the 
preamble to the final rule, Mandatory Reporting of Greenhouse Gases: 
Additional Sources of Fluorinated GHGs: Extension of Best Available 
Monitoring Provisions for Electronics Manufacturing.

B. Subpart I BAMM Provisions

    In this notice, EPA is requesting comment on whether to extend 
until December 31, 2011 the period during which an owner or operator 
subject to Subpart I may, without submitting a petition, use BAMM to 
estimate 2011 emissions. Pursuant to the final rule published today, 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. This means that starting October 
1, 2011, owners and operators subject to Subpart I must discontinue 
using BAMM and begin following all applicable monitoring and QA/QC 
requirements of Subpart I unless they have submitted a request and 
received an approval from the Administrator to use BAMM to estimate 
emissions beyond September 30, 2011. EPA is requesting 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. Under this approach, owners and operators could use 
BAMM without submitting a request for approval by the Administrator to 
estimate emissions that occur from January 1, 2011 to December 31, 
2011. Starting January 1, 2012, owners and operators subject to Subpart 
I would have to discontinue using BAMM unless a request to use BAMM 
beyond December 31, 2011 were approved by the Administrator. This 
extension would provide flexibility for any facility that was unable to 
meet the February 28, 2011 deadline for submitting a request for 
extension in the use of BAMM in 2011 for parameters other than recipe-
specific emission factors. We are considering this flexibility in light 
of the short period of time between publication of the rule and the 
February 28, 2011 deadline.
    EPA is also requesting comment on whether to extend the other two 
relevant BAMM deadlines by which an owner or operator may request the 
use of BAMM for recipe-specific emission factors in 2011 and for 
estimating emissions beyond December 31, 2011. In the final rule 
published today, EPA extended two deadlines by which an owner or 
operator must submit a petition to the Administrator to request the use 
of BAMM. First, EPA extended the deadline by which an owner or operator 
may submit a BAMM request for approval by the Administrator for recipe-
specific utilization and by-product formation rates for the plasma 
etching process type in 2011 from June 30, 2011 to September 30, 2011. 
And second, EPA extended the date by which an owner or operator may 
submit a request for approval by the Administrator to extend the use of 
BAMM beyond December 31, 2011 for unique and extreme circumstances from 
June 30, 2011 to September 30, 2011.
    EPA believes that both of those deadlines are appropriate and that 
they should not be further delayed for the following reasons. First, 
with respect to the deadline to submit a BAMM request for recipe-
specific emission factors, if today's proposal is finalized, EPA does 
not anticipate receiving requests for the use of BAMM for recipe-
specific emission factors in 2011 because it will no longer be required 
for the largest facilities for 2011 and 2012. Second, for requests to 
use BAMM to estimate emissions beyond December 31, 2011 for unique and 
extreme circumstances, EPA believes that a deadline of September 30, 
2011 is appropriate because sufficient time is needed for EPA to review 
the request and respond to the owner or operator before the beginning 
of the next reporting period on January 1, 2012. If today's proposed 
action to allow flexibility for the largest semiconductor manufacturing 
facilities is finalized, EPA anticipates receiving only limited 
requests to use BAMM to estimate emissions beyond December 31, 2011. 
Nevertheless, EPA requests comment on extending the deadlines by which 
an owner or operator may submit a request to use BAMM for recipe-
specific emission factors in 2011 and for estimating emissions beyond 
December 31, 2011.

C. Apportioning Model Verification

    EPA is requesting comment on the issue raised in SIA's Petition for 
Reconsideration with regard to the verification requirement for 
facility-specific engineering models used to apportion gas consumption. 
Pursuant to 40 CFR 98.94(c)(2), a facility must demonstrate that the 
difference between the actual and modeled gas consumption for the gas 
used in the largest quantity on a mass basis for the plasma etching 
process type is less than or equal to 5 percent.

[[Page 36477]]

    In the 2010 proposed rule (75 FR 18652), EPA proposed to require 
electronics manufacturing facilities to apportion consumption of each 
fluorinated GHG used at a facility across process categories in which 
that gas was used based on the quantifiable indicator of number of 
wafer passes. EPA also requested comment, including background 
information, on what quantifiable indicators other than wafer passes 
might be appropriately used to apportion consumption. In response to 
the proposed rule, commenters argued that using a facility-specific 
engineering model based on wafer passes was overly burdensome and not 
currently feasible. Some commenters suggested more flexible methods in 
which the apportioning was based on at least one quantifiable indicator 
and engineering knowledge. Commenters also asserted that EPA should not 
prescribe specific quantifiable indicators for apportioning gas 
consumption in the final rule.
    In response to the comments on the proposed wafer pass-based 
apportioning model, EPA revised the requirements for gas apportioning 
models in the final 2010 rule (FR 74774) to provide flexibility to 
facilities. Unlike the proposal, the final rule does not specify the 
quantifiable metric that must be used in apportioning models; reporters 
are allowed to select the quantifiable metric(s) on which to base their 
facility-specific engineering model. Because EPA provided for 
flexibility in the final rule, EPA included a verification process to 
ensure consistency among reporting entities. This is because facilities 
will use different models and information to apportion gas consumption 
and calculate emissions, and because a minimum level of certainty and 
accuracy must be maintained across reporting facilities.
    We view the verification requirement in the final rule (40 CFR 
98.94(c)(2)) as a logical outgrowth of the proposal. In the final rule, 
EPA balanced the need for flexibility with the need for accuracy in the 
consumption estimate. Nonetheless, we would like Petitioners and others 
to have the opportunity to comment on the approach adopted in the final 
rule and to provide additional information they believe to be relevant. 
For these reasons, we request public comment on this approach. We will 
consider these comments and evaluate whether changes are warranted, 
including whether to propose an alternative approach in a subsequent 
action.
    Specifically, we request comment on whether the requirement to meet 
the 5 percent verification standard is overly burdensome, and if so, 
why. To support this explanation, we request detailed information and 
facility-specific examples. We also request comment on whether existing 
equipment or instruments (e.g., mass flow controllers already installed 
and used on every process tool) can be used to measure actual gas 
consumption for the purposes of model verification, and the associated 
costs of using that equipment or instrumentation. If these costs vary 
from facility to facility, we request comment on the range of costs 
across facilities and the approximate numbers of facilities that would 
incur the various costs. In addition, we request comment on the 
specific actions or modifications a facility would have to take to 
comply with the requirement and the associated costs (e.g., install new 
software for mass flow controllers, purchase and install flow meters or 
scales, etc.). Where these actions or modifications vary from facility 
to facility, we request comment on the range across facilities, and the 
approximate number of facilities that would have to take particular 
actions or modifications. Lastly, we request comment on other 
approaches that could be used to verify modeled gas consumption to a 
similar level of accuracy as the current requirement (i.e., whether 
verification could be accomplished through other means). Note that 
those approaches should not be based on subjective information (e.g., 
engineering judgment).
    In today's notice, EPA is not taking any other action on other 
issues raised by SIA in their Petition for Reconsideration. EPA 
recognizes that the Petition raises other issues. Although EPA is aware 
of these concerns, we are not proposing changes relating to those 
concerns in this action, and we are not seeking comment on those issues 
at this time. EPA reserves the right to further consider those issues 
at a later time. 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.

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 proposed amendments do not make any substantive changes to the 
reporting requirements in the subpart for which amendments are being 
proposed. The proposed amendments to the reporting requirements are 
expected to reduce the reporting burden by allowing reporters to use 
default values instead of recipe-specific values for the first two 
reporting years (2011 and 2012). However, the Office of Management and 
Budget (OMB) has previously approved the information collection 
requirements contained in the existing regulations, 40 CFR 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 this proposed rule 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 today's proposed rule 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

[[Page 36478]]

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. The proposed rule amendments will reduce 
the burden for the largest semiconductor manufacturing facilities by 
providing flexibility during the initial years of compliance. The 
proposed action does not impose any new requirements on regulated 
entities.
    We continue to be interested in the potential impacts of the 
proposed rule amendments on small entities and welcome comments on 
issues related to such impacts.

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.
    The proposed rule amendments do 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 proposed 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. The proposed amendments will not impose any new 
requirements for 40 CFR part 98, and the rule amendments would not 
unfairly apply to small governments. 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 
would be affected. 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 during the development 
of the Mandatory Reporting Rule. A summary of EPA's consultations with 
State and local governments is provided in Section VIII.E of the 
preamble to the 2009 final rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed action 
from State and local officials.

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 proposed 
rule amendments would not result in any changes to the requirements 
that are not currently required for 40 CFR part 98. 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 the Mandatory Reporting Rule. 
A summary of the EPA's consultations with Tribal officials is provided 
in Sections VIII.D and VIII.F of the preamble to the 2009 final 
Mandatory Reporting Rule (74 FR 56260, October 30, 2009) and Section 
IV.F of the preamble to the 2010 final rule for Subpart I (75 FR 
74774).

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 proposed 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 proposed rule will not have 
disproportionately high and adverse

[[Page 36479]]

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.

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 stated in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 98--[AMENDED]

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

    Authority: 42 U.S.C. 7401, et seq.

Subpart I--[Amended]

    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 and 2012 reporting years.
* * * * *
[FR Doc. 2011-15651 Filed 6-21-11; 8:45 am]
BILLING CODE 6560-50-P


