Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 41703 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. These actions may 

not be challenged later in proceedings to 

enforce their requirements. (See section 

307(b)(2).) 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: June 26, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR Parts 52 and 81 are amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.776 is amended by 

adding paragraphs (v)(2) and (w)(2) to 

read as follows: 

§ 52.776 Control strategy: Particulate 

matter. 

* * * * * 

(v) * * * 

(2) The Indianapolis area (Hamilton, 

Hendricks, Johnson, Marion and Morgan 

Counties), as submitted on October 20, 

2009, and supplemented on May 31, 

2011, January 17, 2013, and March 18, 

2013. The maintenance plan establishes 

2015 motor vehicle emissions budgets 

for the Indianapolis area of 853.76 tpy 

for primary PM2.5 and 25,314.49 tpy for 

NOX and 2025 motor vehicle emissions 

budgets of 460.18 tpy for primary PM2.5

and 13,368.60 tpy for NOX. 

(w) * * * 

(2) Indiana’s 2006 NOX, primary 

PM2.5, and SO2 emissions inventories 

and 2007/2008 VOC and ammonia 

emission inventories, as submitted on 

October 20, 2009 and supplemented on 

May 31, 2011 and March 18, 2013, 

satisfy the emission inventory 

requirements of section 172(c)(3) of the 

Clean Air Act for the Indianapolis area. 

* * * * * 

PART 81—DESIGNATION OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES 

■ 3. The authority citation for part 81 

continues to read as follows: 

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

■ 4. Section 81.315 is amended by 

revising the entry for Indianapolis, IN in 

the table entitled ‘‘Indiana PM2.5

(Annual NAAQS)’’ to read as follows: 

§ 81.315 Indiana. 

* * * * * 

INDIANA PM2.5 (ANNUAL NAAQS) 

Designated area 

Designation a

Date 1 Type 

*******

Indianapolis, IN: 

Hamilton County ................................................................................................................................................ 7/11/2013 Attainment. 

Hendricks County .............................................................................................................................................. 7/11/2013 Attainment. 

Johnson County ................................................................................................................................................. 7/11/2013 Attainment. 

Marion County ................................................................................................................................................... 7/11/2013 Attainment. 

Morgan County .................................................................................................................................................. 7/11/2013 Attainment. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is 90 days after January 5, 2005, unless otherwise noted. 

* * * * * 

[FR Doc. 2013–16478 Filed 7–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2011–0542; FRL–9822–7] 

RIN 2060–AR85 

Regulation of Fuels and Fuel 

Additives: Additional Qualifying 

Renewable Fuel Pathways Under the 

Renewable Fuel Standard Program; 

Final Rule Approving Renewable Fuel 

Pathways for Giant Reed (Arundo 

Donax) and Napier Grass (Pennisetum 

Purpureum) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final rule approves 

pathways for production of renewable 

fuel from giant reed (Arundo donax) 

and napier grass (Pennisetum 

purpureum) as feedstocks. These 

pathways are for cellulosic biofuel, for 

purposes of the Renewable Fuel 

Standard Program (RFS), under Clean 

Air Act (CAA) as amended by the 

Energy Independence and Security Act 

of 2007 (EISA). EPA has determined that 

renewable fuel made from napier grass 

and giant reed meet the greenhouse gas 

(GHG) reduction requirements for 

cellulosic biofuel under the 

requirements of the RFS program. In 

response to comments on the proposal 

concerning the potential for these crops 

to behave as invasive species, EPA is 

adopting additional registration, 

recordkeeping, and reporting 

requirements that were developed to 

address the potential for GHG emissions 

related to these concerns. Approval of 


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41704 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 

these pathways combined with the 

related provisions will create additional 

opportunities for regulated parties to 

comply with the advanced and 

cellulosic renewable fuel requirements 

of the RFS program, while ensuring that 

these feedstocks do not pose a 

significant likelihood of spread into 

areas outside the intended planting area. 

DATES: This rule is effective on July 11, 

2013. 

FOR FURTHER INFORMATION CONTACT: 

Edmund Coe, Office of Transportation 

and Air Quality (MC6401A), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460; telephone number: (202) 

564–8994; fax number: (202) 564–1686; 

email address: Coe.edmund@Epa.gov. 

SUPPLEMENTARY INFORMATION: 

Does this action apply to me? 

Entities potentially affected by this 

action are those involved with the 

production, distribution, and sale of 

transportation fuels, including gasoline 

and diesel fuel or renewable fuels such 

as ethanol and biodiesel. Regulated 

categories and entities affected by this 

action include: 

Category NAICS1 Codes SIC 2 Codes Examples of potentially 

regulated entities 

Industry ............................................. 324110 2911 Petroleum Refineries. 

Industry ............................................. 325193 2869 Ethyl alcohol manufacturing. 

Industry ............................................. 325199 2869 Other basic organic chemical manufacturing. 

Industry ............................................. 424690 5169 Chemical and allied products merchant wholesalers. 

Industry ............................................. 424710 5171 Petroleum bulk stations and terminals. 

Industry ............................................. 424720 5172 Petroleum and petroleum products merchant wholesalers. 

Industry ............................................. 454319 5989 Other fuel dealers. 

1 North American Industry Classification System (NAICS). 

2Standard Industrial Classification (SIC) system code. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could be potentially regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. To determine whether your 

entity is regulated by this action, you 

should carefully examine the 

applicability criteria of Part 80, subparts 

D, E and F of title 40 of the Code of 

Federal Regulations. If you have any 

question regarding applicability of this 

action to a particular entity, consult the 

person in the preceding FOR FURTHER

INFORMATION CONTACT section above. 

Outline of This Preamble 

I. Executive Summary 

A. Purpose of the Regulatory Action 

B. Summary of the Major Provisions of 

This Regulatory Action 

II. Additional Qualifying Renewable Fuel 

Pathways Under the Renewable Fuel 

Standard (RFS) Program, Using Giant 

Reed and Napier Grass 

A. Feedstock Production and Distribution 

B. Fuel Production, Distribution, and Use 

C. Summary 

III. Additional Provisions Addressing 

Invasiveness Concerns for Giant Reed 

and Napier Grass 

A. Discussion of Comments on Invasive 

Species 

B. Registration, Reporting, and Record 

Keeping Requirements to Address 

Potential Invasiveness 

IV. 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 

D. Unfunded Mandates Reform Act 

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 

Concerning Regulations 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. Executive Order 13112: Invasive Species 

L. Congressional Review Act 

V. Statutory Provisions and Legal Authority 

I. Executive Summary 

A. Purpose of the Regulatory Action 

In this final rule, EPA is approving a 

pathway for production of renewable 

fuel from giant reed (Arundo donax) 

and napier grass (Pennisetum 

purpureum) as feedstock for purposes of 

the RFS program. EPA has determined 

that renewable fuel made from napier 

grass and giant reed meet the lifecycle 

greenhouse gas (GHG) reduction 

requirements for cellulosic biofuel 

under the requirements of the RFS 

program. EPA is also adopting 

additional registration, recordkeeping, 

and reporting requirements to minimize 

the potential spread outside of the 

intended planting areas of giant reed or 

napier grass that was planted for the 

purpose of producing renewable fuels 

under the RFS program. These 

additional requirements are necessary to 

minimize the potential that the 

feedstock will spread to areas outside 

the intended planting area. Such 

unintended growth could result in 

additional GHG emissions from 

activities needed to control and remove 

the invasive plants, which have not 

been factored into our lifecycle analysis. 

EPA is issuing this final rule based on 

its evaluation of the lifecycle 

greenhouse gas emissions of this 

pathway for production of renewable 

fuel from these feedstocks. The 

approach for establishing a renewable 

fuel pathway is based on the 

requirements related to greenhouse gas 

reductions that are part of the RFS 

program, under Clean Air Act (‘‘CAA’’) 

Section 211(o) as amended by the 

Energy Independence and Security Act 

of 2007 (‘‘EISA’’). This rulemaking 

modifies the RFS regulations published 

at 40 CFR 80.1400 et seq. The RFS 

program regulations specify the types of 

fuels eligible to participate in the RFS 

renewable fuel program and the 

procedures by which renewable fuel 

producers and importers may generate 

Renewable Identification Numbers 

(‘‘RINs’’) for the qualifying renewable 

fuels they produce through approved 

fuel pathways. See 75 FR 14670 (March 

26, 2010); 75 FR 26026 (May 10, 2010); 

75 FR 37733 (June 30, 2010); 75 FR 

59622 (September 28, 2010); 75 FR 

76790 (December 9, 2010); 75 FR 79964 

(December 21, 2010); 77 FR 1320 

(January 9, 2012); 77 FR 74592 

(December 17, 2012); and 78 FR 14190 

(March 5, 2013). 

Approving the new fuel pathways 

according to the provisions of this rule 

will provide biofuel producers 

opportunities to increase the volume of 

advanced, low-GHG cellulosic biofuels 


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1For purposes of this proposal, the term ‘‘giant 

reed’’ refers to the species Arundo donax and 

‘‘napier grass’’ refers to the species Pennisetum 

purpureum. 

2See the Final Regulatory Impact Analysis in 

support of the March 2010 RFS Final Rule, 

available at http://www.epa.gov/otaq/ 

renewablefuels/420r10006.pdf. 

3See http://www.fs.fed.us/database/feis/plants/ 

graminoid/arudon/all.html. 

4See Lewandowski, I., Scurlock, J.M.O., Lindvall, 

E., Christou, M. (2003). The development and 

current status of perennial rhizomatous grasses as 

energy crops in the U.S. and Europe. Biomass and 

Bioenergy 25, 335–361. 

under the RFS program. EPA’s 

comprehensive lifecycle analyses in the 

January 5, 2012 proposal show 

significant lifecycle GHG emission 

reductions from fuels produced from 

giant reed and napier grass, as compared 

to the baseline (petroleum-based) 

gasoline or diesel fuel that they replace. 

However, the lifecycle analyses assume 

no significant indirect greenhouse gas 

emissions associated with actions to 

remove or remediate the unintended 

spread of these feedstocks outside of the 

intended planting area. This rule 

includes provisions designed to ensure 

that this assumption is realized, and 

were developed in response to 

comments raised during the public 

comment period. 

B. Summary of the Major Provisions of 

this Regulatory Action 

This rule approves new pathways for 

production of cellulosic biofuel from 

giant reed and napier grass as 

feedstocks. The rule also includes 

several provisions addressing 

invasiveness concerns regarding giant 

reed or napier grass when it is grown as 

a feedstock for production of renewable 

fuel.1 These provisions require either a 

demonstration by the renewable fuel 

producer that the giant reed or napier 

grass will not pose a significant 

likelihood of spread beyond its intended 

planting area, or approval by EPA of a 

Risk Mitigation Plan developed by the 

fuel producer that demonstrates the 

giant reed or napier grass will not pose 

a significant likelihood of spread 

beyond its intended the planting area. 

EPA’s use of the term ‘‘no significant 

likelihood of spread beyond the 

planting area’’ means that it is highly 

unlikely there will be such spread. EPA 

is also including related registration, 

reporting, and recording keeping 

requirements. 

II. Additional Qualifying Renewable 

Fuel Pathways Under the Renewable 

Fuel Standard (RFS) Program, Using 

Giant Reed and Napier Grass 

EPA’s analysis of renewable fuel 

pathways using giant reed and napier 

grass as feedstocks was originally 

published in the Federal Register on 

January 5, 2012 as a direct final rule, 

with a parallel publication of a 

proposed rule. Because relevant adverse 

comments were received, EPA withdrew 

the direct final rule on March 5, 2012 

(77 FR 13009). A second comment 

period was not issued, since the 

simultaneous publication of the 

proposed rule provided an adequate 

notice and comment process. 

For this rulemaking, EPA considered 

the lifecycle GHG impacts of two types 

of high-yielding perennial grasses 

similar in cellulosic composition to 

Panicum virgatum (switchgrass) and 

comparable in status as an emerging 

energy crop. The grasses considered in 

this rulemaking are giant reed (Arundo 

donax), and napier grass (Pennisetum 

purpureum), also known as elephant 

grass. In the March 2010 RFS rule, EPA 

analyzed the lifecycle GHG impacts of 

producing and using cellulosic ethanol 

and cellulosic Fischer-Tropsch diesel 

from switchgrass. The midpoint of the 

range of switchgrass results showed a 

110% GHG reduction (range of 102% to 

117%) for cellulosic ethanol 

(biochemical process), a 72% (range of 

64% to 79%) reduction for cellulosic 

ethanol (thermochemical process), and a 

71% (range of 62% to 77%) reduction 

for cellulosic diesel (F–T process) 

compared to the petroleum baseline. In 

the March 2010 RFS final rule, we 

indicated that some feedstock sources 

can be determined to be similar enough 

to those modeled that the modeled 

results could reasonably be extended to 

these similar feedstock types. For 

instance, information on miscanthus 

indicated that this perennial grass will 

yield more feedstock per acre than the 

modeled switchgrass feedstock without 

additional inputs with GHG 

implications (such as fertilizer).2

Therefore in the final rule EPA 

concluded that since biofuel made from 

the cellulosic biomass in switchgrass 

was found to satisfy the 60% GHG 

reduction threshold for cellulosic 

biofuel, biofuel produced from the 

cellulosic biomass in miscanthus would 

also comply. In the final rule we 

included cellulosic biomass from 

switchgrass and miscanthus as eligible 

feedstocks for the cellulosic biofuel 

pathways included in Table 1 to 

§ 80.1426. 

We did not include other perennial 

grasses such as giant reed or napier 

grass as feedstocks for the cellulosic 

biofuel pathways in Table 1 at that time, 

since we did not have sufficient time to 

adequately consider them. Based in part 

on additional information received 

through the petition process for EPA 

approval of giant reed and napier grass 

pathways, EPA has evaluated these 

feedstocks and is now including these 

feedstocks in Table 1 to § 80.1426 as 

approved pathways for cellulosic 

biofuel pathways. 

As described in detail in the following 

sections of this preamble, because of the 

similarity of these feedstocks to 

switchgrass and miscanthus, EPA 

believes that new agricultural sector 

modeling is not needed to analyze them. 

We have instead relied upon the 

switchgrass analysis to assess the 

relative GHG impacts of biofuel 

produced from giant reed and napier 

grass. As with the switchgrass analysis, 

we have attributed all land use impacts 

and resource inputs from use of these 

feedstocks to the portion of the fuel 

produced that is derived from the 

cellulosic components of the feedstocks. 

Based on this analysis and currently 

available information, we conclude that 

biofuel (ethanol, cellulosic diesel, jet 

fuel, heating oil and naphtha) produced 

from the cellulosic biomass of giant reed 

or napier grass has similar lifecycle 

GHG impacts to switchgrass biofuel and 

meets the 60% GHG reduction threshold 

required for cellulosic biofuel. 

A. Feedstock Production and 

Distribution 

For the purposes of this rulemaking, 

Giant reed refers to the perennial grass 

Arundo donax of the Poaceae family. 

Giant reed thrives in subtropical and 

warm-temperate areas and is grown 

throughout Asia, southern Europe, 

Africa, the Middle East, and warmer 

U.S. states for multiple uses such as 

paper and pulp, musical instruments, 

rayon, particle boards, erosion control, 

and ornamental purposes.3 4 Based in 

part on discussions with industry, EPA 

anticipates continued development of 

giant reed as an energy crop particularly 

in the Mediterranean region and warmer 

U.S. states. 

Napier grass is a tall bunch-type grass 

that has traditionally been grown as a 

high-yielding forage crop across the wet 

tropics. There is a considerable body of 

agronomic research on the production of 

napier grass as a forage crop. More 

recently, researchers have investigated 

ways to maximize traits desirable in 

bioenergy crops. Practices have been 

developed by USDA and other 

researchers to lower fertilization rates 

and increase biomass production. Based 

in part on discussions with industry, 

EPA anticipates continued development 

of napier grass as an energy crop 


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5For a map depicting the northern limit for 

sustained napiergrass production in the United 

States see Figure 1 in Woodard, K., R. and 

Sollenberger, L, E. 2008. Production of Biofuel 

Crops in Florida: Elephantgrass. Institute of Food 

and Agricultural Sciences, University of Florida. SS 

AGR 297. 

6Huang, P., Bransby, D., and Sladden, S. (2010). 

Exceptionally high yields and soil carbon 

sequestration recorded for giant reed in Alabama. 

Poster session presented at: ASA, CSSA, and SSSA 

2010 International Annual Meetings, Green 

Revolution 2.0; 2010 Oct 31–Nov 4; Long Beach, 

CA. 

7Mantineo, M., D’Agnosta, G.M., Copani, V., 

Patane`, C., and Cosentino, S.L. (2009). Biomass 

yield and energy balance of three perennial crops 

for energy use in the semi-arid Mediterranean 

environment. Field Crops Research 114, 204–213. 

8Lewandowski et al. 2003. 

9Based on discussions with industry and USDA 

and Woodard and Sollenberger (2008). 

10These yields assume no significant adverse 

climate impacts on world agricultural yields over 

the analytical timeframe. 

particularly in Gulf Coast Region of the 

United States (more specifically the 

growing region includes Florida and 

southern portions of Texas, Louisiana, 

Georgia, Alabama and Mississippi).5

1. Crop Yields 

For the purposes of analyzing the 

GHG emissions from giant reed and 

napier grass production, EPA examined 

crop yields and production inputs in 

relation to switchgrass to assess the 

relative GHG impacts. Current national 

yields for switchgrass are approximately 

4.5 to 5 dry tons per acre. Giant reed 

field trials conducted in Alabama over 

a 9-year period showed an average yield 

of 15 dry tons per acre with no nitrogen 

fertilizer applied after the first year.6

Fertilized field trials have shown yields 

around 13 to 28 dry tons per acre in 

Spain, and 12 dry tons per acre in Italy 

(based on annual yields of 3, 14, 17, 16, 

and 12).7 High yields have been 

demonstrated with unimproved giant 

reed populations, and therefore there is 

potential for increased biomass 

productivity through improved growing 

methods and breeding efforts.8 Napier 

grass field trials have produced dry 

biomass yields exceeding 20 tons per 

acre per year in north-central Florida. 

Using currently available technology, 

average yields for full-season napier 

grass should range from 14 to 18 tons 

per acre with future improvements 

expected. Yield depends greatly on the 

type of cultivar and the amount and 

distribution of rainfall and fertilization 

rates. There is potential for increased 

biomass productivity through improved 

growing methods and breeding efforts.9

In general, the yields for both of the 

energy grasses considered here will 

have higher yields than switchgrass, so 

from a crop yield perspective, the 

switchgrass analysis would be a 

conservative estimate when comparing 

against the napier grass, and giant reed 

pathways. 

Furthermore, EPA’s analysis of 

switchgrass for the March 2010 RFS rule 

(75 FR 14791) assumed a 2% annual 

increase in yield that would result in an 

average national yield of 6.6 dry tons 

per acre in 2022. EPA anticipates a 

similar yield improvement for giant reed 

and napier grass due to their similarity 

as perennial grasses and their 

comparable status as energy crops in 

their early stages of development. Given 

this, our analysis assumes an average 

giant reed yield of approximately 18 dry 

tons per acre by 2022 and an average 

napier grass yield of approximately 20 

dry tons per acre by 2022.10 The ethanol 

yield for all of the grasses is 

approximately the same so the higher 

crop yields for napier grass and giant 

reed result directly in greater ethanol 

production compared to switchgrass per 

acre of production. 

Based on these yield assumptions, in 

areas with suitable growing conditions, 

giant reed would require less than 40% 

of the land area required by switchgrass 

to produce the same amount of biomass 

and napier grass would require 

approximately 33% of the land area 

required by switchgrass to produce the 

same amount of biomass due to their 

higher yields. Even without yield 

growth assumptions, their currently 

higher crop yield rates means the land 

use required for these crops would be 

lower than for switchgrass. Therefore 

less crop area would be converted and 

displaced resulting in smaller land-use 

change GHG impacts than that assumed 

for switchgrass to produce the same 

amount of fuel. Furthermore, we believe 

napier grass will have a similar impact 

on international markets as assumed for 

switchgrass. Like switchgrass, napier 

grass is not expected to be traded 

internationally and its impacts on other 

crops are expected to be limited. 

Increased giant reed demand in the U.S. 

for biofuels is not expected to impact 

existing markets for giant reed, which 

are relatively small niche markets (e.g., 

musical instrument reeds). 

2. Land Use 

In EPA’s March 2010 RFS final rule 

analysis, switchgrass plantings 

displaced primarily soybeans and 

wheat, and to a lesser extent hay, rice, 

sorghum, and cotton. Napier grass, with 

production focused in the southern 

United States, is likely to be grown on 

land once used for pasture, rice, 

commercial sod, cotton or alfalfa, which 

would likely have less of an 

international indirect impact than 

switchgrass because some of those 

commodities are not as widely traded as 

soybeans or wheat. Given that napier 

grass will likely displace the least 

productive land first, EPA concludes 

that the land use GHG impact for napier 

grass per gallon should be no greater 

and likely less than estimated for 

switchgrass. Given that giant reed is in 

early stages of development as an energy 

crop, there is limited information on 

where it will be grown and what crops 

it will displace. We expect giant reed 

will displace the least productive land 

first and would likely have a similar or 

smaller indirect impact associated with 

crop displacement than what we 

assumed for switchgrass. 

Considering the total land potentially 

impacted by all the new feedstocks 

included in this rulemaking would not 

impact these conclusions. In the 

switchgrass ethanol scenario done for 

the March 2010 RFS final rule, total 

cropland acres increases by 4.2 million 

acres, including an increase of 12.5 

million acres of switchgrass, a decrease 

of 4.3 million acres of soybeans, a 1.4 

million acre decrease of wheat acres, a 

decrease of 1 million acres of hay, as 

well as decreases in a variety of other 

crops. Given the higher yields of the 

energy grasses considered here 

compared to switchgrass, there would 

be ample land available for production 

without having any anticipated adverse 

impacts beyond what was considered 

for switchgrass production. This 

analysis took into account the economic 

conditions such as input costs and 

commodity prices when evaluating the 

GHG and land use change impacts of 

switchgrass. 

One commenter stated that by 

assuming no land use change for giant 

reed and napier grass, the Agency may 

have underestimated the increase in 

GHG emissions that could result from 

breaking new land. According to the 

commenter, EPA assumed that these 

feedstocks will be grown on the least 

productive land without citing any 

specific models or studies. 

The commenter appears to have 

misinterpreted EPA’s analysis. EPA did 

not assume these crops would be grown 

on fallow acres, nor did EPA assume 

that switchgrass would only be 

produced on the least productive lands. 

EPA assumed these crops would be 

grown on acres similar to switchgrass, 

and therefore applied the land use 

change impacts of switchgrass analyzed 

in the March 2010 RFS final rule. In that 

rule, EPA provided detailed information 

on the types of crops (e.g., wheat) that 

would be displaced by switchgrass. This 


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11See Final Regulatory Impact Analysis Chapter 

2, February 2010. 

12The F–T diesel process modeled applies to 

cellulosic diesel, jet fuel, heating oil, and naphtha. 

analysis took into account the economic 

conditions such as input costs and 

commodity prices when evaluating the 

GHG and land use change impacts of 

switchgrass.11

3. Crop Inputs and Feedstock Transport 

EPA also assessed the GHG impacts 

associated with planting, harvesting, 

and transporting giant reed and napier 

grass feedstocks in comparison to 

switchgrass. Table 1 shows the assumed 

2022 commercial-scale production 

inputs for switchgrass (used in the 

March 2010 RFS final rule analysis), 

average giant reed and napier grass 

production inputs (USDA projections 

and industry data) and the associated 

GHG emissions. 

Available data gathered by EPA 

suggest that giant reed may require on 

average less nitrogen and insecticide 

than switchgrass, but more 

phosphorous, potassium, herbicide, 

diesel, and electricity per unit of 

biomass. Napier grass may require 

similar amounts of nitrogen fertilizer 

application as switchgrass, less 

phosphorous, potassium and insecticide 

than switchgrass, but more herbicide, 

lime, diesel and electricity per unit of 

biomass. See Table 1 below. 

This assessment assumes production 

of these two new feedstocks uses 

electricity for irrigation given that 

growers will likely irrigate when 

possible to improve yields. Irrigation 

rates will vary depending on the timing 

and amount of rainfall, but for the 

purpose of estimating GHG impacts of 

electricity use for irrigation, we 

assumed a rate similar to what we 

assumed for other irrigated crops in the 

Southwest, South Central, and 

Southeast as shown in Table 1. 

Applying the GHG emission factors 

used in the March 2010 RFS final rule, 

giant reed production results in slightly 

lower GHG emissions relative to 

switchgrass production (a decrease of 

approximately 2 kg CO2eq/mmbtu). 

Napier grass production results in 

slightly higher GHG emissions relative 

to switchgrass production (an increase 

of approximately 6 kg CO2eq/mmbtu). 

TABLE 1—PRODUCTION INPUTS AND GHG EMISSIONS FOR SWITCHGRASS, GIANT REED, AND NAPIER GRASS

(BIOCHEMICAL ETHANOL), 2022 

Emission 

factors 

Switchgrass Giant Reed Napier grass 

Inputs 

(per dry ton 

of biomass) 

Emissions 

(per mmBtu fuel) 

Inputs 

(per dry ton 

of biomass) 

Emissions 

(per mmBtu fuel) 

Inputs 

(per dry ton 

of biomass) 

Emissions 

(per mmBtu fuel) 

Nitrogen Fertilizer.3,29 kgCO2e/ton 

of nitrogen.

15.2 lbs ................. 3.6 kgCO2e ........... 5 lbs ...................... 1 kgCO2e .............. 10 lbs .................... 2.4 kgCO2e. 

N2O ................... N/A .................... N/A ....................... 7.6 kgCO2e ........... N/A ....................... 4.8 kgCO2e ........... N/A ....................... 7.6 kgCO2e. 

Phosphorus Fertilizer.1,12 kgCO2e/ton 

of phosphate.

6.1 lbs ................... 0.5 kgCO2e ........... 7.4 lbs ................... 0.6 kgCO2e ........... 1.1 lbs ................... 0.1 kgCO2e. 

Potassium Fertilizer.743 kgCO2e/ton 

of potassium.

6.1 lbs ................... 0.3 kgCO2e ........... 7.4 lbs ................... 0.4 kgCO2e ........... 4.0 lbs ................... 0.2 kgCO2e.. 

Herbicide ........... 23,45 kgCO2e/ 

tons of herbicide.

0.002 lbs ............... 0.003 kgCO2e ....... 0.02 lbs ................. 0.03 kgCO2e ......... 0.4 lbs ................... 0.6 kgCO2e. 

Insecticide (average across regions).27,22 kgCO2e/ 

tons of pesticide.

0.025 lbs ............... 0.04 kgCO2e ......... 0 lbs ...................... 0 kgCO2e .............. 0 lbs ...................... 0 kgCO2e. 

Lime .................. 408 kgCO2e/ton 

of lime.

0 lbs ...................... 0 kgCO2e .............. 0 lbs ...................... 0 kgCO2e .............. 100 lbs .................. 2.9 kgCO2e. 

Diesel ................ 97 kgCO2e/ 

mmBtu diesel.

0.4 gal .................. 0.8 kgCO2e ........... 1.4 gal .................. 2.5 kgCO2e ........... 1.3 gal .................. 2.2 kgCO2e. 

Electricity (irrigation).220 kgCO2e/ 

mmBtu.

0 kWh ................... 0 kgCO2e .............. 10 kWh ................. 1 kgCO2e .............. 25 kWh ................. 2.7 kgCO2e. 

Total Emissions............................ ............................... 13 kgCO2e/mmBtu ............................... 11 kgCO2e/mmBtu ............................... 19 kgCO2e/ 

mmBtu. 

Assumes 2022 switchgrass yield of 6.59 dry tons/acre and 92.3 gal ethanol/dry ton, 2022 giant reed yield of 18 dry tons/acre and 92.3 gal ethanol/dry ton, and 

2022 napier grass yield of 20 dry tons/acre and 92.3 gal ethanol/dry ton. More detail on calculations and assumptions is included in materials to the docket. 

GHG emissions associated with 

distributing giant reed and napier grass 

feedstocks are expected to be similar to 

EPA’s estimates for switchgrass 

feedstock because they are all 

herbaceous agricultural crops requiring 

similar transport, loading, unloading, 

and storage regimes. Our analysis 

therefore assumes the same GHG impact 

for feedstock distribution as we 

assumed for switchgrass, although 

distributing giant reed and napier grass 

feedstocks could be less GHG intensive 

because higher yields could translate to 

shorter overall hauling distances to 

storage or biofuel production facilities 

per gallon or Btu of final fuel produced. 

B. Fuel Production, Distribution, and 

Use 

Giant reed and napier grass are 

suitable for the same conversion 

processes as other cellulosic feedstocks, 

such as switchgrass and corn stover. 

Currently available information on giant 

reed and napier grass composition 

shows that their hemicellulose, 

cellulose, and lignin content are 

comparable to other crops that qualify 

under the RFS regulations as feedstocks 

for the production of cellulosic biofuels. 

Based on this similar composition as 

well as conversion yield data provided 

by industry, we applied the same 

production processes that were modeled 

for switchgrass in the March 2010 RFS 

final rule (biochemical ethanol, 

thermochemical ethanol, and FischerTropsch (F–T) diesel) 12 to giant reed 

and napier grass. We assumed the GHG 

emissions associated with producing 

biofuels from giant reed and napier 

grass are similar to what we estimated 

for switchgrass and other cellulosic 

feedstocks. EPA also assumes that the 

distribution and use of biofuel made 

from giant reed and napier grass will not 

differ significantly from similar biofuel 

produced from other cellulosic sources. 

As was done for the switchgrass case, 

this analysis assumes energy grasses 

grown in the United States for 

production purposes. If crops were 

grown internationally, used for biofuel 


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13See Williams et al. (Docket Number EPA–HQ– 

OAR–2011–0542–0631); Letter from Petro Losa to 

Lisa Jackson and Boris Bershteyn, dated October 10, 

2012 (Docket Number EPA–HQ–OAR–2011–0542– 

0625); Virtue et al. at www.caws.org.au/awc/2010/ 

awc201011761.pdf (Docket Number EPA–HQ– 

OAR–2011–0542–0611); Information on Arundo 

donax (Docket Number EPA–HQ–OAR–2011–0542– 

0619). 

14Comment submitted by Jonathan Lewis, Senior 

Counsel, Climate Policy, Clean Air Task Force et al., 

dated February 6, 2012. Document ID# EPA–HQ– 

OAR–2011–0542–0118. ‘‘Executive Order’’ refers to 

Executive Order 13112, Invasive Species, signed 

February 3, 1999. 

15Comments submitted by Robert L. Bendick, 

Director, U.S. Government Affairs, The Nature 

Conservancy et al., dated February 6, 2012. 

Document ID# EPA–HQ–OAR–2011–0542–0119. 

production, and the fuel was shipped to 

the U.S., shipping the finished fuel to 

the U.S. could increase transport 

emissions. However, based on analysis 

of the increased transport emissions 

associated with sugarcane ethanol 

distribution to the U.S. considered for 

the 2010 final rule, this would at most 

add 1–2% to the overall lifecycle GHG 

impacts of the energy grasses. 

C. Summary 

Based on our comparison of 

switchgrass and the two feedstocks 

considered here, EPA believes that 

cellulosic biofuel produced from the 

cellulose, hemicellulose and lignin 

portions of giant reed and napier grass 

has similar or better lifecycle GHG 

impacts than biofuel produced from the 

cellulosic biomass from switchgrass. 

Our analysis suggests that the two 

feedstocks considered have GHG 

impacts associated with growing and 

harvesting the feedstock that are similar 

to switchgrass. Emissions from growing 

and harvesting giant reed are 

approximately 2 kg CO2eq/mmBtu 

lower than switchgrass, and emissions 

from growing and harvesting napier 

grass are approximately 6 kg CO2eq/ 

mmBtu higher than switchgrass. These 

are small changes in the overall 

lifecycle, representing at most a 6% 

change in the energy grass lifecycle 

impacts in comparison to the petroleum 

fuel baseline. Furthermore, the two 

feedstocks considered are expected to 

have similar or lower GHG emissions 

than switchgrass associated with other 

components of the biofuel lifecycle. 

Under a hypothetical worst case, if 

the calculated increases in growing and 

harvesting the new feedstocks are 

incorporated into the lifecycle GHG 

emissions calculated for switchgrass, 

and other lifecycle components are 

projected as having similar GHG 

impacts to switchgrass (including land 

use change associated with switchgrass 

production), the overall lifecycle GHG 

reductions for biofuel produced from 

giant reed and napier grass still meet the 

60% reduction threshold for cellulosic 

biofuel, the lowest being a 64% 

reduction (for napier grass diesel 

produced through gasification and 

upgrading) compared to the petroleum 

baseline. We believe these are 

conservative estimates, as use of giant 

reed or napier grass as a feedstock is 

expected to have smaller land-use GHG 

impacts than switchgrass, due to their 

higher yields. The docket for this rule 

provides additional detail on the 

analysis of giant reed and napier grass 

as biofuel feedstocks. 

Although this analysis assumes giant 

reed and napier grass biofuels produced 

for sale and use in the United States will 

most likely come from domestically 

produced feedstock, we also intend for 

the approved pathways to cover 

renewable fuels from giant reed and 

napier grass grown in other countries. 

We do not expect incidental amounts of 

biofuels from feedstocks produced in 

other nations to impact our assessment 

that the average GHG emissions 

reductions will meet the threshold for 

qualifying as a cellulosic biofuel 

pathway. Moreover, those countries 

most likely to be exporting giant reed, 

or napier grass or biofuels produced 

from these feedstocks are likely to be 

major producers which typically use 

similar cultivars and farming 

techniques).13 Therefore, GHG 

emissions from producing biofuels with 

giant reed or napier grass grown in other 

countries should be similar to the GHG 

emissions we estimated for U.S. giant 

reed or napier grass, though they could 

be slightly higher or lower. For example, 

the renewable biomass provisions under 

the Energy Independence and Security 

Act would prohibit direct conversion of 

previously unfarmed land in other 

countries into cropland for energy grassbased renewable fuel production. 

Furthermore, any energy grass 

production on existing cropland 

internationally would not be expected 

to have land use impacts beyond what 

was considered for switchgrass 

production. Even if there were 

unexpected larger differences, EPA 

believes the small amounts of feedstock 

or fuel potentially coming from other 

countries will not impact our threshold 

analysis. 

Based on our assessment of 

switchgrass in the March 2010 RFS final 

rule and this comparison of GHG 

emissions from switchgrass and giant 

reed and napier grass, we do not expect 

variations to be large enough to bring 

the overall GHG impact of fuel made 

from giant reed or napier grass to come 

close to the 60% threshold for cellulosic 

biofuel. Therefore, EPA is including 

cellulosic biofuel produced from the 

cellulose, hemicelluloses and lignin 

portions of giant reed and napier grass 

under the same pathways for which 

cellulosic biomass from switchgrass 

qualifies under the RFS program. 

III. Additional Provisions Addressing 

Invasiveness Concerns for Giant Reed 

and Napier Grass 

As described the previous section, the 

lifecycle GHG assessment of the 

pathways using giant reed and napier 

grass assumed that these crops would 

not expand beyond their intended 

planting area and therefore did not 

assume any significant GHG emissions 

resulting from actions to remediate or 

remove this unintended spread. In 

response to the January 5, 2012 

proposal, EPA received comments 

raising concerns about the potential for 

the spread of these species beyond their 

intended growing area. After 

considering these comments, EPA has 

decided to adopt various changes to the 

RFS regulations to address the potential 

for giant reed or napier grass to behave 

as invasive species beyond their 

intended planting area. The 

supplemental requirements included in 

this final rule support the lifecycle 

assessment discussed in section II above 

and the determination that biofuels 

produced with these feedstocks will 

meet the criteria of advanced and 

cellulosic biofuels under the RFS 

regulations. 

A. Discussion of Comments on Invasive 

Species 

In response to the January 2012 

proposed rule, EPA received comments 

highlighting the concern that by 

approving certain new feedstock types 

under the RFS program, EPA would be 

encouraging their introduction or 

expanded planting without considering 

their potential impact as invasive 

species.14 Commenters stated that 

Arundo donax (giant reed) and 

Pennisetum purpureum (napier grass) 

have been identified as invasive species 

in certain parts of the country. These 

commenters asserted that giant reed and 

napier grass ‘‘are invasive species 

within the definition of the Executive 

Order.’’ 15 Commenters stated that EPA 

should not approve the proposed 

feedstocks until EPA has conducted an 

invasive species analysis, as required 

under Executive Order (E.O.) 13112. 

EPA also received comments stating 

that giant reed is not ‘‘invasive’’ as 

defined by E.O. 13112, since giant reed 

‘‘only presents problems of invasiveness 


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Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 41709 

16Comment submitted by R. Timothy Columbus 

and Christopher G. Falcone, Steptoe & Johnson LLP 

on behalf of The Chemtex Group, dated February 

13, 2012. Document ID# EPA–HQ–OAR–2011– 

0542–0124. 

17http://www.gpo.gov/fdsys/pkg/FR-1999-02-08/ 

pdf/99-3184.pdf. 

18See http://info.sos.state.tx.us/fids/200701978- 

1.html. Accessed on March 30, 2012. 

19See http://agri.nv.gov/nwac/ 

PLANT_NoxWeedList.htm. Accessed on May 23, 

2012. 

20See http://pi.cdfa.ca.gov/pqm/manual/pdf/ 

107.pdf. Accessed on March 30, 2012. 

21See http://www.gaeppc.org/list.cfm. Accessed 

on May 23, 2012. 

22See http://www.fleppc.org/list/ 

2011PlantList.pdf. Accessed on May 212, 2013. 

23See http://www.oregon.gov/oisc/docs/pdf/ 

arundo603_052_1206.pdf. Accessed May 20, 2013. 

24Letter from Stephen W. Troxler to Bob 

Perciasepe, dated March 26, 2013. See Docket 

Number EPA–HQ–OAR–2011–0542–0665. 

25CAA § 211(o)(1)(J). 

26CAA §§ 211(o)(1)(B), (D), (E). 

27CAA § 211(o)(1)(I). 

28Separately, the CAA directs EPA to consider 

additional factors, including environmental impacts 

of the production and use of renewable fuels, in the 

context of determining the required volumes of 

renewable fuel for years where Congress does not 

specify volumes, at CAA § 211(o)(2)(B)(ii). In 

addition, Congress mandated that EPA conduct 

certain studies and provide reports to Congress on 

air quality impacts and other issues besides 

greenhouse gas impacts associated with the RFS 

program. See CAA § 211(q), (v) and EISA § 204. 

in riparian areas prone to torrential 

flooding . . . giant reed has been grown 

responsibly in numerous places . . . 

without problems of invasiveness.’’ 16

E.O. 13112, signed in February 1999, 

calls for each federal agency ‘‘to the 

extent practicable and permitted by law 

. . . not authorize, fund, or carry out 

actions that it believes are likely to 

cause or promote the introduction or 

spread of invasive species in the United 

States or elsewhere unless, pursuant to 

guidelines that it has prescribed, the 

agency has determined and made public 

its determination that the benefits of 

such actions clearly outweigh the 

potential harm caused by invasive 

species; and that all feasible and 

prudent measures to minimize risk of 

harm will be taken in conjunction with 

the actions.’’ 17 The Executive Order 

defines ‘‘invasive species’’ as ‘‘an alien 

species whose introduction does or is 

likely to cause economic or 

environmental harm or harm to human 

health.’’ 

Giant reed is listed as a noxious or 

invasive species by Texas,18 Nevada,19

and California,20 and these states have 

programs in place to address invasive 

species concerns. Several other states 

also consider giant reed a problem or 

threat 21 and napier grass is currently 

not recommended in Florida because of 

invasive potential.22 While not 

prohibiting its planting, Oregon has 

promulgated strict regulations for the 

cultivation of giant reed anywhere in 

the state.23 Other states, such as North 

Carolina, have specifically determined 

that giant reed does not warrant listing 

as a noxious weed in their state.24

In the January 5, 2012 proposal, EPA 

included the proposed lifecycle analysis 

of giant reed and napier grass. As 

discussed below, EPA’s lifecycle 

analysis of the renewable fuel produced 

from these feedstocks assumes there are 

no significant indirect greenhouse gas 

emissions associated with the spread 

and subsequent remediation of these 

feedstocks when grown for biofuel 

production for the RFS program. Based 

on this assumption, the lifecycle 

analysis does not include any 

expenditures of energy or other sources 

of GHGs to remediate the spread of 

these species, such as mechanical 

removal or chemical control activities, 

outside of the locations where it is 

grown as a renewable fuel feedstock for 

the RFS program. 

EPA is not in a position to estimate 

the magnitude of GHG emissions that 

might be associated with any such 

remediation if the plants are not 

controlled in this manner at these 

locations. Given this uncertainty, EPA is 

not ready at this time to determine the 

percent reduction in lifecycle GHG 

emissions and whether it satisfies the 

threshold reduction in GHGs required 

under the Act, absent such an 

assumption. Therefore EPA believes it is 

prudent to require renewable fuel 

producers to commit to the necessary 

long-term mechanisms to demonstrate 

that their production of renewable fuel 

from giant reed or napier grass is 

consistent with this assumption, as a 

condition of approval as a RINgenerating producer of renewable fuel 

under the RFS program. By requiring 

the fuel producer to demonstrate no 

significant likelihood of spread beyond 

the planting area EPA believes that the 

approval of pathways to produce 

renewable fuel from giant reed or napier 

grass is not likely to cause or promote 

the introduction or spread of invasive 

species in the United States or 

elsewhere. 

B. Registration, Reporting, and Record 

Keeping Requirements To Address 

Potential Invasiveness 

EPA is requiring that registration for 

producers of renewable fuel made from 

giant reed or napier grass would include 

submission by the renewable fuel 

producer of a Risk Mitigation Plan 

(RMP) that demonstrates measures are 

being taken to prevent the spread of 

these species such that the production 

of giant reed or napier grass will not 

pose a significant likelihood of spread 

beyond the planting area designated in 

the plan for the feedstock used for 

production of the renewable fuel. 

Alternatively, the fuel producer could 

demonstrate that an RMP is not needed 

because under the circumstances giant 

reed or napier grass does not pose a 

significant likelihood of spread beyond 

the planting area. For example, an RMP 

may not be needed where the growing 

area is an area or region outside the 

United States where giant reed or napier 

grass is a native plant and growing it as 

a feedstock will not lead to any 

additional spread of the plant. 

Registration of the producer would 

therefore require either EPA approval of 

an RMP or an EPA determination that 

no plan is needed based on the 

demonstration noted above. RINs could 

not be generated for renewable fuel 

produced using the giant reed or napier 

grass pathway absent such approval or 

determination. EPA is also adopting 

related recordkeeping and reporting 

requirements. The registration, 

reporting, and recordkeeping (RRR) 

requirements are described in more 

detail below. 

The CAA defines renewable fuel as 

fuel produced from renewable 

biomass,25 and the definitions of 

categories of renewable fuel, i.e., 

advanced biofuel, biomass-based diesel, 

and cellulosic biofuel, specify the fuels’ 

lifecycle GHG emissions compared to 

baseline gasoline or diesel fuel GHG 

emissions.26 The definition of 

renewable biomass also specifies certain 

conditions that biomass must meet to be 

considered renewable biomass.27 The 

definitions of renewable biomass and 

renewable fuels do not specifically 

address the potential environmental 

impacts associated with the use of 

potentially invasive species as 

feedstocks.28 Given the text and 

structure of section 211(o), EPA does 

not consider environmental factors 

other than the lifecycle analysis of GHG 

emissions and the definition of 

renewable biomass in determining 

whether a fuel produced from biomass 

is a renewable fuel for purposes of the 

RFS program. 

The requirements for producers 

summarized above and discussed in 

more detail below are a reasonable way 

to implement this authority when 

considering the full lifecycle GHG 

emissions for renewable fuel produced 

from giant reed and napier grass. EPA 

has included additional registration, 

recordkeeping, and reporting 

requirements in this rule, to address 

EPA’s lifecycle analysis and concerns 

related to the spread of invasive species. 


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29Comment submitted by the Biofuels Center of 

North Carolina and the Institute for Sustainable and 

Renewable Resources, dated February 13, 2012. 

Document ID# EPA–HQ–OAR–2011–0542–0123. 

30See http://www.nrcs.usda.gov/Internet/ 

FSE_DOCUMENTS/stelprdb1044768.pdf. 

31See http://www.habitat.noaa.gov/pdf/ 

HACCP%20Training%20Manual.pdf. 

EPA developed these additional 

requirements by building upon a 

number of state, federal, and local 

mechanisms that are already in place to 

reduce the potential invasive impacts of 

species such as giant reed and napier 

grass. For example, if producers were to 

apply for the Biomass Crop Assistance 

Program (BCAP), USDA would require 

an environmental assessment that 

analyzes the risk of invasiveness. In 

addition, USDA’s Conservation Reserve 

Program (CRP) can also impose 

restrictions on farmers interested in 

growing giant reed on CRP land. 

Furthermore, invasive species are 

controlled and regulated under various 

existing federal and state guidelines. 

The Animal and Plant Health Inspection 

Service (APHIS) of the USDA regulates 

noxious weeds under the authority of 

the Plant Protection Act (PPA). APHIS 

names the regulated weeds in the 

noxious weed regulations (7 CFR part 

360) that may not be imported into the 

United States, or moved interstate, 

without a special permit. The 

requirements included in this rule are 

not intended to negate or supersede any 

local, state, or federal authority to 

restrict or ban these feedstocks due to 

invasiveness or other concerns. 

The potential for spread posed by 

potentially invasive feedstocks may be 

greatly reduced through the use of best 

practices.29 Commenters referenced the 

voluntary best practices document 

developed jointly by the North Carolina 

Department of Agriculture and 

Consumer Services, the NC State 

University Cooperative Extension, and 

the Biofuels Center of North Carolina. 

Many of the recommendations 

developed in this document are similar 

to the best practices USDA describes for 

the management of similar energy crops 

such as switchgrass and miscanthus.30

For example, both USDA and the North 

Carolina voluntary standards 

recommend developing management 

plans that avoid planting at sites 

without buffer areas and avoid feedstock 

production in floodplains. 

The spread of potentially invasive 

feedstocks is also controlled by some 

states. For example, in Florida, biomass 

plantings are governed by FL Rule 5B– 

57.011. According to the rule, a permit 

for biomass plantings is required for two 

contiguous acres within one parcel of 

land for any plant used for biomass 

production. The purpose of the 

permitting process is to control the 

introduction into, or movement within, 

Florida of plant species intended for 

biomass plantings. One provision of the 

process is that no biomass permit shall 

be issued for any planting of plants on 

the state noxious weed list or the federal 

noxious weed list. In 2009, a company, 

White Technologies LLC, applied for 

and received a permit to grow 80 acres 

of giant reed under the Florida program. 

Under Oregon State Statutes, Chapter 

570, § 570.405, the Oregon Department 

of Agriculture may establish control 

areas if after careful investigation it 

determines that such areas are necessary 

for the general protection of the 

horticultural, agricultural or forest 

industries of the state from diseases, 

insects, animals or noxious weeds. In 

March of 2011, the State created a 

control area for giant reed in Morrow 

and Umatilla Counties. The regulation, 

with restrictions, allowed for up to 400 

acres of giant reed to be grown in 

Morrow and Umatilla Counties for 

providing biomass for a test burn at the 

Portland General Electric Boardman 

Power Plant. 

Given the potential for greenhouse gas 

emissions associated with remediation 

of the spread of giant reed and napier 

grass, EPA believes it is prudent to 

allow RINs to be generated for fuel 

produced from these feedstocks only if 

they are grown, transported, and used to 

produce fuel in a manner that is 

consistent with our lifecycle analysis. 

EPA is requiring that producers of 

renewable fuel derived from giant reed 

and napier grass must submit a Risk 

Mitigation Plan to ensure that the 

production of giant reed or napier grass 

will not pose a significant likelihood of 

spread beyond the planting area of the 

feedstock used for production of the 

renewable fuel. EPA would consult with 

the appropriate responsible 

governmental agencies, including 

USDA, about the RMP, and would 

approve it if it meets the regulatory 

criteria described in 

§ 80.1450(b)(1)(ix)(A). The producer or 

importer may only generate RINs for 

fuel produced from these feedstocks if 

the feedstocks were grown and 

transported in compliance with an EPA 

approved RMP and if the producer 

follows the approved RMP. If the RMP 

for a particular feedstock is not 

performed, any RINs generated for fuel 

produced from that feedstock are 

invalid under § 80.1431, and the 

generation of invalid RINs is a 

prohibited act under § 80.1460(b)(2), 

subject to civil penalties. 

Alternately, the producer could 

submit information and data showing 

that no RMP is needed because under 

the circumstances giant reed or napier 

grass do not pose a significant 

likelihood of spread beyond the 

planting area. For example, EPA would 

consider not requiring an RMP in cases 

where the growing area is an area or 

region outside the United States where 

giant reed or napier grass is a native 

plant and growing it as a feedstock will 

not lead to any additional spread of the 

plant. While ongoing monitoring will 

not be required when it is determined 

that an RMP is not needed, the 

recordkeeping requirements nonetheless 

require the producer or importer to 

notify EPA within five (5) days of any 

reported growth of the feedstock outside 

the intended planting area. This will 

allow EPA to keep track of the growth 

and possible invasive nature of the 

feedstock. Also, as per § 80.1450(b)(2), 

the producer or importer must submit 

an independent engineering report 

every three years verifying all the 

information submitted at registration. 

This will include the producer or 

importer’s demonstration that the 

feedstock presents no substantial 

likelihood of spread beyond the 

intended planting area. 

In either case, EPA would require the 

producer to submit a letter from the 

appropriate USDA office with its 

registration materials, stating USDA’s 

opinions regarding the likelihood of the 

feedstock spreading beyond the planting 

area, and the sufficiency of the RMP (if 

applicable) in addressing and mitigating 

such likelihood. 

EPA, again after consultation with 

USDA and any other relevant 

governmental agencies, would make its 

determination regarding whether the 

producer’s plan demonstrates that there 

is not a significant likelihood of the 

feedstock spreading beyond the 

intended planting area prior to 

registering the renewable fuel producer 

and allowing RINs to be generated for 

fuel produced from that feedstock. 

Risk Mitigation Plans would be 

required to incorporate approaches that 

are already recognized as highly 

effective. One highly effective approach 

to risk mitigation is Hazard Analysis 

Critical Control Point (HACCP).31

HACCP examines each phase of an 

invasive species pathway to identify 

control and evaluation measures to 

reduce the likelihood of spread. Applied 

within a coordinated HACCP strategy or 

plan, these control and evaluation 

measures reinforce each other. To the 

extent appropriate, HACCP should be 

incorporated into a Risk Mitigation 

Plan. Also as part of the RMP, the 

producer would demonstrate how the 


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Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 41711 

32See http://www.invasivespecies.gov/ 

home_documents/BiofuelWhitePaper.pdf. 

33See http://www.nrcs.usda.gov/Internet/ 

FSE_DOCUMENTS/stelprdb1044768.pdf. 

34See http://www.oregon.gov/oisc/docs/pdf/ 

arundo603_052_1206.pdf. 

35http://www.invasivespecies.gov/global/EDRR/ 

EDRR_documents/ 

Guidelines%20for%20Early%20Detection 

%20&%20Rapid%20Response.pdf. 

use of best management practices 

(BMPs), such as those developed by the 

Invasive Species Advisory Committee 32

for any species, by USDA for 

miscanthus,33 and by the State of 

Oregon for Arundo donax,34 will be 

used by the feedstock grower and how 

such practices will minimize the 

potential spread of the renewable fuel 

feedstock. BMPs include the 

development and implementation of 

mitigation strategies and plans to 

minimize escape and other impacts 

(e.g., minimize soil disturbance), 

incorporate desirable traits (e.g., sterility 

or reduced seed production), develop 

and put in place dispersal mitigation 

protocols prior to cultivation of biofuel 

plants in each region or ecosystem, 

develop multiple year eradication 

protocols for rapid removal of biofuel 

crops if they disperse beyond desired 

crop rotation period, and develop plans 

for early detection and rapid response 

(EDRR).35 EDRR efforts should also be 

incorporated into an RMP; such efforts 

should demonstrate that the likelihood 

that invasions could be halted while 

still localized and identify and employ 

cooperative networks, communication 

forums and consultation processes 

through which federal, state, and local 

agencies can work with other 

stakeholders to reduce the risk of 

biological invasion. There are 

significant geographic gaps in baseline 

distribution and abundance data for 

invasive species including giant reed 

and napier grass. It may be difficult to 

determine what plants gave rise to a 

newly found population and 

populations may go undetected for long 

periods. For this reason, early detection 

rapid response efforts should be 

conducted cooperatively with a priority 

on halting the spread of the species. The 

RMP should include provisions for the 

closure of the site once it is no longer 

used for production of feedstock for 

biofuel use under the RFS program or 

upon abandonment by the feedstock 

grower, including the destruction and 

removal of all remaining feedstock. Site 

decommissioning planning is also 

required for sites that have 

demonstrated that they do not need an 

RMP to prevent escapes after active crop 

production and management operations 

have stopped. 

Furthermore, the RMP should include 

an on-going monitoring and reporting 

component. The monitoring would 

cover the presence or absence of the 

giant reed or napier grass, and the 

planting locations prior to and during 

feedstock cultivation. Monitoring 

should be done during the growing 

season, as well as extend for a sufficient 

period after the field is no longer used 

for feedstock production to ensure no 

remnants of giant reed or napier grass 

survive or spread. The details of a 

monitoring and reporting plan, 

including the party responsible for 

collecting and overseeing monitoring 

data, will be specific to the project and 

planting site, and should account for 

and respond to any applicable local, 

state or federal regulations. The area 

that needs to be monitored would also 

be approved by EPA, in consultation 

with the appropriate responsible 

officials. The area to be monitored 

should be sufficient to detect any 

potential spread of the feedstock, both 

surrounding the field of production and 

feedstock storage sites, along the 

transportation route, and around the 

biofuel production facility. 

EPA is requiring the use of a third 

party auditor, independent of the 

feedstock grower and renewable fuel 

producer to audit the monitoring 

activities and reporting done by the 

renewable fuel producer under the RMP 

on an annual basis as part of the 

producer or importer’s fourth quarterly 

report as set out in § 80.1451(h)(5), 

subject to approval of a different 

frequency by EPA. For growers who are 

new to growing or harvesting invasive 

feedstocks, more frequent monitoring or 

reporting may be required for the first 

growing cycle. It will be the 

responsibility of the renewable fuel 

producer to identify this competent 

independent third party as part of its 

registration application. Any future 

changes to the use of a different 

independent third party, or changes to 

any EPA approved management or 

monitoring mechanisms or practices 

must be documented in a revised RMP, 

reviewed, and approved by EPA in 

advance of the change. RINs generated 

for renewable fuel produced from giant 

reed or napier grass without EPA’s 

approval for the RMP (where such a 

plan is required) would be invalid. 

The recordkeeping and reporting 

provisions would require producers to 

obtain documentation about giant reed 

or napier grass feedstocks from their 

feedstock supplier(s) and take the 

measures necessary to ensure that they 

know the source of their feedstocks and 

can demonstrate to EPA that they were 

produced in compliance with an RMP 

or from land that EPA has determined 

will not create a significant likelihood of 

spread beyond the planting area of the 

feedstock used for production of the 

renewable fuel. 

Specifically, the reporting 

requirements for producers who 

generate RINs from these feedstocks 

include a certification on renewable fuel 

production reports that the feedstock 

was grown, harvested, transported, and 

stored in compliance with an RMP or 

from land that EPA has determined will 

not create a significant likelihood of 

spread beyond the planting area. 

Additionally, producers will be required 

to include with their quarterly reports a 

summary of the types and quantities of 

these feedstocks used throughout the 

quarter, as well as maps of the land from 

which the feedstocks used in the quarter 

were harvested. EPA’s recordkeeping 

provisions require renewable fuel 

producers to maintain sufficient records 

to support their claims that their 

feedstocks were grown and transported 

in compliance with an RMP or from 

land that EPA has determined will not 

create a significant likelihood of spread 

beyond the planting area. 

If submitting an RMP, the renewable 

fuel producer would also submit a 

number of documents such as a letter 

documenting the feedstock grower’s 

compliance with all of the relevant 

federal, state, regional, and local 

requirements related to invasive species, 

a copy of all state and local growing 

permits held by the feedstock grower, 

and a communication plan for notifying 

federal, state, and local authorities if the 

feedstock is detected outside the 

intended planting areas. Finally, the 

fuel producer would submit a copy of 

the agreement between itself, the 

feedstock grower, and any 

intermediaries responsible for the 

harvesting, transport and storage of the 

feedstock, establishing the parties’ rights 

and duties related to the RMP and any 

other activities and liability associated 

with the prevention of the spread of the 

feedstock. It is essential that the 

feedstock grower, fuel producer, and 

any intermediaries responsible for the 

harvesting, transport, and storage of the 

feedstock are clearly on notice of their 

relative rights and duties in this 

situation because the regulations will 

require the fuel producer to exercise a 

level of responsibility for and oversight 

of the feedstock production, harvest, 

transport and storage that may not 

normally exist in a buy-sell contract for 

agricultural products. Finally, pursuant 

to existing regulations, EPA may require 

additional information as needed at the 


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time of registration, which may be 

especially appropriate when the agency 

considers the approval of a feedstock 

with risk of invasiveness. 

As part of the registration process, 

EPA will require information on the 

financial resources or other financial 

mechanism available to finance 

reasonable remediation activities and 

may require, where appropriate, the fuel 

producer to include in an RMP a 

demonstration that there is an adequate 

mechanism (such as a stateadministered fund, bond, or certificate 

of deposit) to ensure the availability of 

financial resources sufficient to cover 

reasonable potential remediation costs 

associated with the spread of giant reed 

or napier grass beyond the intended 

planting areas. EPA would consult with 

USDA and, as appropriate, other federal 

agencies on the need for and, where 

appropriate, the extent of financial 

resources required for adequate 

assurances of containment and 

remediation in the event of a spread. 

USDA’s letter on the suitability of an 

RMP (noted above) should include these 

recommendations considering site 

specific characteristics. The primary 

purpose of such a mechanism would be 

to ensure that the fuel producer has the 

necessary finances to ensure that giant 

reed or napier grass does not spread 

beyond the intended borders. In this 

way, we believe such a mechanism 

would be consistent with the lifecycle 

analyses for these pathways, which 

assume no significant indirect GHG 

emissions from remediation activities. 

Since the expected result would be 

additional assurance that preventive 

measures are taken, it would further 

decrease the likelihood of spread and 

associated remediation activities 

occurring, which is consistent with the 

assumption of the lifecycle analysis. 

EPA believes that a robust RMP as 

discussed above, combined with the 

additional measures to prevent spread 

of the feedstock resulting from a 

financial assurance mechanism, would 

be consistent with EPA’s assumption of 

no significant indirect greenhouse gas 

emissions associated with the spread 

and subsequent remediation of these 

feedstocks grown for biofuel production 

for the RFS program. 

To further reduce the likelihood of 

growth beyond the planting area for 

these feedstocks, EPA is also including 

additional consequences for producers 

whose feedstock grows beyond the 

intended planting area. The reporting 

requirements include a requirement that 

the producer notify EPA and USDA and 

relevant agencies identified in the 

communications plan as soon as 

practicable after detection of 

unintended growth outside the planted 

area. We are also including provisions 

wherein growth outside the planting 

area could result in a suspension of the 

producer’s registration and ability to 

generate RINs via that pathway until 

remediation activities were completed 

and the potential for further spread was 

addressed. Prohibiting the generation of 

RINs in this situation would provide an 

incentive for the producer to conduct 

better oversight of the feedstock 

supplier and prevent unintended 

growth beyond the planting area, and 

would also ensure that the generation of 

RINs via these pathways is consistent 

with the underlying lifecycle analysis. 

Also, as noted above, if the RMP is not 

performed as intended, any RINs 

generated for fuel produced from that 

feedstock are invalid under § 80.1431, 

and the generation of such invalid RINs 

is a prohibited act subject to civil 

penalties. Those penalties would be 

assessed according to CAA § 211(d)(1), 

amounting to up to $37,500 per 

violation per day plus any economic 

benefit or savings resulting from the 

violations. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action.’’ 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The modifications to the RFS 

regulations contained in this rule are 

within the scope of the information 

collection requirements previously 

submitted to the Office of Management 

and Budget (OMB) for the RFS 

regulations. 

OMB has approved the information 

collection requirements contained in the 

existing regulations at 40 CFR part 80, 

subpart M under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control numbers 2060–0637 and 2060– 

0640. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (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 today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) 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 this action on small entities, 

I certify that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

This rule will not impose any new 

requirements on small entities. The 

relatively small changes this rule makes 

to the RFS regulations do not impact 

small entities. 

D. Unfunded Mandates Reform Act 

This rule 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. We 

have determined that this action will 

not result in expenditures of $100 

million or more for the above parties 

and thus, this rule is not subject to the 

requirements of sections 202 or 205 of 

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. It 

only applies to gasoline, diesel, and 

renewable fuel producers, importers, 

distributors and marketers and makes 

relatively minor corrections and 

modifications to the RFS regulations. 

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 


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Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 41713 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action only 

applies to gasoline, diesel, and 

renewable fuel producers, importers, 

distributors and marketers and makes 

relatively minor corrections and 

modifications to the RFS regulations. 

Thus, Executive Order 13132 does not 

apply to this action. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This rule does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It applies to gasoline, diesel, and 

renewable fuel producers, importers, 

distributors and marketers. This action 

makes relatively minor corrections and 

modifications to the RFS regulations, 

and does not impose any enforceable 

duties on communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets E.O. 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 E.O. has the potential to influence 

the regulation. This action is not subject 

to E.O. 13045 because it does not 

establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This rulemaking does not change any 

programmatic structural component of 

the RFS regulatory requirements. This 

rulemaking does not add any new 

requirements for obligated parties under 

the program or mandate the use of any 

of the new pathways contained in the 

rule. This rulemaking only makes a 

determination to qualify new fuel 

pathways under the RFS regulations, 

creating further opportunity and 

flexibility for compliance with the 

Energy Independence and Security Act 

of 2007 (EISA) mandates. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (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 action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (E.O.) 12898 (59 FR 

7629 (Feb. 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. 

These amendments would not relax the 

control measures on sources regulated 

by the RFS regulations and therefore 

would not cause emissions increases 

from these sources. 

K. Executive Order 13112: Invasive 

Species 

Executive Order (E.O.) 13112 (64 FR 

6183 (Feb. 3, 1999)) calls for each 

Federal agency to not take actions that 

it believes are likely to cause or promote 

the introduction or spread of invasive 

species unless the agency has 

determined its determination that the 

benefits of such actions clearly 

outweigh the potential harm caused by 

invasive species. EPA has determined 

that this rule is not likely to cause or 

promote the introduction or spread of 

invasive species, since this rulemaking 

requires the demonstration by the 

renewable fuel producer that the growth 

of Arundo donax or Pennisetum 

purpureum will not pose a significant 

likelihood of spread beyond the 

planting area of the feedstock used for 

production of the renewable fuel. 

L. 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, 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. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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 the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

V. Statutory Provisions and Legal 

Authority 

Statutory authority for the rule 

finalized today can be found in section 

211(o) of the Clean Air Act, 42 U.S.C. 

7545(o). Additional support for today’s 

rule comes from Section 301(a) of the 

Clean Air Act, 42 U.S.C. 7414, 7542, and 

7601(a). 

List of Subjects in 40 CFR Part 80 

Environmental protection, 

Administrative practice and procedure, 

Agriculture, Air pollution control, 

Confidential business information, 

Diesel Fuel, Energy, Forest and Forest 

Products, Fuel additives, Gasoline, 

Imports, Penalties, Petroleum, Reporting 

and recordkeeping requirements. 

Dated: June 28, 2013. 

Bob Perciasepe, 

Acting Administrator. 

For the reasons set forth in the 

preamble, 40 CFR part 80 is amended as 

follows: 

PART 80—REGULATION OF FUELS 

AND FUEL ADDITIVES 

■ 1. The authority citation for part 80 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7521(1), 7545 

and 7601(a). 


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■ 2. Section 80.1426 is amended by 

revising Rows K, L, and N of Table 1 in 

paragraph (f)(1), and by adding 

paragraph (f)(14) to read as follows: 

* * * * * 

§ 80.1426 How are RINs generated and 

assigned to batches of renewable fuel by 

renewable fuel producers or importers? 

* * * * * 

(f) * * * 

(1) * * * 

TABLE 1 TO § 80.1426—APPLICABLE D CODES FOR EACH FUEL PATHWAY FOR USE IN GENERATING RINS

Fuel type Feedstock 

Production 

process requirements D-Code 

*******

K Ethanol ......................... Cellulosic Biomass from crop residue, slash, pre-commercial thinnings and tree 

residue, annual covercrops, switchgrass, miscanthus, Energy cane, Arundo 

donax, and Pennisetum purpureum; cellulosic components of separated yard 

waste; cellulosic components of separated food waste; and cellulosic components of separated MSW.

Any ............... 3 

L Cellulosic diesel, jet fuel 

and heating oil.

Cellulosic Biomass from crop residue, slash, pre-commercial thinnings and tree 

residue, annual covercrops, switchgrass, miscanthus, energy cane, Arundo 

donax, and Pennisetum purpureum; cellulosic components of separated yard 

waste; cellulosic components of separated food waste; and cellulosic components of separated MSW.

Any ............... 7 

*******

N Naphtha ........................ Cellulosic biomass from switchgrass, miscanthus, energy cane, Arundo donax, 

and Pennisetum purpureum.

Gasification 

and upgrading.

3 

* * * * * 

(14) A producer or importer of 

renewable fuel using giant reed (Arundo 

donax) or napier grass (Pennisetum 

purpureum) as a feedstock may generate 

RINs for that renewable fuel if: 

(i) The feedstock is produced, 

managed, transported, collected, 

monitored, and processed according to 

a Risk Mitigation Plan approved by EPA 

under the registration procedures 

specified in § 80.1450(b)(1)(x)(A); or, 

(ii) EPA has determined that there is 

not a significant likelihood of spread 

beyond the planting area of the 

feedstock used for production of the 

renewable fuel. Any determination that 

Arundo donax or Pennisetum 

purpureum does not present a 

significant likelihood of spread beyond 

the planting area must be based upon 

clear and compelling evidence, 

including information and supporting 

data submitted by the producer. Such a 

determination must be made by EPA as 

specified in § 80.1450(b)(1)(x)(B). 

* * * * * 

■ 3. Section 80.1450 is amended by 

adding paragraph (b)(1)(x) to read as 

follows: 

§ 80.1450 What are the registration 

requirements under the RFS program? 

* * * * * 

(b) * * * 

(1) * * * 

(x)(A) For a producer of renewable 

fuel made from Arundo donax or 

Pennisetum purpureum per 

§ 80.1426(f)(14)(i): 

(1) A Risk Mitigation Plan (Plan) that 

demonstrates the growth of Arundo 

donax or Pennisetum purpureum will 

not pose a significant likelihood of 

spread beyond the planting area of the 

feedstock used for production of the 

renewable fuel. The Plan must identify 

and incorporate best management 

practices (BMPs) into the production, 

management, transport, collection, 

monitoring, and processing of the 

feedstock. To the extent practicable, the 

Risk Mitigation Plan should utilize a 

Hazard Analysis Critical Control Point 

(HACCP) approach to examine each 

phase of the pathway to identify spread 

reduction steps. BMPs should include 

the development of mitigation strategies 

and plans to minimize escape and other 

impacts (e.g., minimize soil 

disturbance), incorporate desirable traits 

(e.g., sterility or reduced seed 

production), develop and implement 

dispersal mitigation protocols prior to 

cultivation, develop multiple year 

eradication controls. Eradication 

controls should follow an approach of 

early detection and rapid response 

(EDRR) to unintended spread. EDRR 

efforts should demonstrate the 

likelihood that invasions will be halted 

while still localized and identify and 

employ cooperative networks, 

communication forums, and 

consultation processes with federal, 

state, and local agencies. The Risk 

Mitigation Plan must provide for the 

following: 

(i) Monitoring and reporting data for 

a period prior to planting that is 

sufficient to establish a baseline, 

through crop production, and extending 

beyond crop production for a sufficient 

period after the field is no longer used 

for feedstock production to ensure no 

remnants of giant reed or napier grass 

survive or spread. 

(ii) Monitoring must include the area 

encompassing the feedstock growing 

areas, the transportation corridor 

between the growing areas and the 

renewable fuel production facility, and 

the renewable fuel production facility, 

extending to the distance of potential 

propagation of the feedstock species, or 

further if necessary. 

(iii) Monitoring must reflect the 

likelihood of spread specific to the 

feedstock. 

(iv) A closure plan providing for the 

destruction and removal of feedstock 

from the growing area upon 

abandonment by the feedstock grower or 

end of production. 

(v) A plan providing for an 

independent third party who will audit 

the monitoring and reporting conducted 

in accordance with the Plan on an 

annual basis, subject to approval of a 

different frequency by EPA. 

(2) A letter from the United States 

Department of Agriculture (‘‘USDA’’) to 

the renewable fuel producer stating 

USDA’s conclusions and the bases 

therefore regarding whether the Arundo 

donax or Pennisetum purpureum does 

or does not present a significant 

likelihood of spread beyond the 


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planting area of the feedstock used for 

production of the renewable fuel as 

proposed by the producer. This letter 

shall also include USDA’s 

recommendation of whether it is 

appropriate to require the use of a 

financial mechanism to ensure the 

availability of financial resources 

sufficient to cover reasonable potential 

remediation costs associated with the 

invasive spread of giant reed or napier 

grass beyond the intended planting 

areas. In coordination with USDA, EPA 

shall identify for the producer the 

appropriate USDA office from which the 

letter should originate. 

(3) Identification of all federal, state, 

regional, and local requirements related 

to invasive species that are applicable 

for the feedstock at the growing site and 

at all points between the growing site 

and the fuel production site. 

(4) A copy of all state and local 

growing permits held by the feedstock 

grower. 

(5) A communication plan for 

notifying EPA’s Office of Transportation 

and Air Quality, USDA, adjacent federal 

land management agencies, and any 

relevant state, tribal, regional, and local 

authorities as soon as possible after 

identification of the issue if the 

feedstock is detected outside planted 

area. 

(6) A copy of the agreement between 

the feedstock grower and fuel producer 

establishing all rights and duties of the 

parties related to the Risk Mitigation 

Plan and any other activities and 

liability associated with the prevention 

of the spread of Arundo donax and/or 

Pennisetum purpureum outside of the 

intended planting area. 

(7) A copy of the agreement between 

the fuel producer and an independent 

third party describing how the third 

party will audit the monitoring and 

reporting conducted in accordance with 

the Risk Mitigation Plan on an annual 

basis, subject to approval of a different 

timeframe by EPA. 

(8) Information on the financial 

resources or other financial mechanism 

(such as a state-administered fund, 

bond, or certificate of deposit) that 

would be available to finance reasonable 

remediation activities associated with 

the potential spread of giant reed or 

napier grass beyond the intended 

planting areas, and information on 

whether it is necessary to have any 

further such resources or mechanism. 

EPA may require a demonstration that 

there is an adequate financial 

mechanism (such as a stateadministered fund, bond, or certificate 

of deposit) to ensure the availability of 

financial resources sufficient to cover 

reasonable potential remediation costs 

associated with the spread of giant reed 

or napier grass beyond the intended 

planting areas. 

(9) EPA may require additional 

information as appropriate. 

(B) For a producer of renewable fuel 

made from Arundo donax or 

Pennisetum purpureum per 

§ 80.1426(f)(14)(ii): 

(1) Clear and compelling evidence, 

including information and supporting 

data, demonstrating that Arundo donax 

or Pennisetum purpureum does not 

present a significant likelihood of 

spread beyond the planting area of the 

feedstock used for production of the 

renewable fuel. Evidence must include 

data collected from similar 

environments (soils, temperatures, 

precipitation, USDA Hardiness Zones) 

as the proposed feedstock production 

project site and accepted by the 

scientific community. Such a 

demonstration should include 

consideration of the elements of a Risk 

Mitigation Plan set forth in paragraph 

(b)(1)(x)(A) of this section, fully disclose 

the potential invasiveness of the 

feedstock, provide a closure plan for the 

destruction and removal of feedstock 

from the growing area upon 

abandonment by the feedstock grower or 

end of production, and explain why a 

Risk Mitigation Plan is not needed to 

make the required determination. 

(2) A letter from the United States 

Department of Agriculture (‘‘USDA’’) to 

the renewable fuel producer stating 

USDA’s conclusions and the bases 

therefore regarding whether the Arundo 

donax or Pennisetum purpureum does 

or does not present a significant 

likelihood of spread beyond the 

planting area of the feedstock used for 

production of the renewable fuel as 

proposed by the producer or importer. 

In coordination with USDA, EPA shall 

identify for the producer the appropriate 

USDA office from which the letter 

should originate. 

(C) EPA may suspend a producer’s 

registration for purposes of generating 

RINs for renewable fuel using Arundo 

donax or Pennisetum purpureum as a 

feedstock if such feedstock has spread 

beyond the intended planting area. 

* * * * * 

■ 4. Section 80.1451 is amended by 

adding paragraph (h) to read as follows: 

§ 80.1451 What are the reporting 

requirements under the RFS program? 

* * * * * 

(h) Producers or importers of 

renewable fuel made from Arundo 

donax or Pennisetum purpureum per 

§ 80.1426(f)(14) must report all the 

following: 

(1) Any detected growth of Arundo 

donax or Pennisetum purpureum 

outside the intended planting area, 

within 5 business days after detection 

and in accordance with the Risk 

Mitigation Plan, if applicable. 

(2) As available, any updated 

information related to the Risk 

Mitigation Plan, as applicable. An 

updated Risk Mitigation Plan must be 

approved by the Administrator in 

consultation with USDA prior to its 

implementation. 

(3) On an annual basis, a description 

of and maps or electronic data showing 

the average and total size and prior use 

of lands planted with Arundo donax or 

Pennisetum purpureum, the average and 

total size and prior use of lands set aside 

to control the invasive spread of these 

crops, and a description and 

explanation of any change in land use 

from the previous year. (4) On an annual 

basis, the report from an independent 

third party auditor evaluating 

monitoring and reporting activities 

conducted in accordance with the Risk 

Mitigation Plan, as applicable subject to 

approval of a different frequency by 

EPA. 

(5) Information submitted pursuant to 

paragraphs (h)(3) and (h)(4) of this 

section must be submitted as part of the 

producer or importer’s fourth quarterly 

report, which covers the reporting 

period October–December, according to 

the schedule in paragraph (f)(2) of this 

section. 

■ 5. Section 80.1454 is amended by 

adding paragraph (b)(7) to read as 

follows: 

§ 80.1454 What are the recordkeeping 

requirements under the RFS program? 

* * * * * 

(b) * * * 

(7) For any producer of renewable fuel 

made from Arundo donax or 

Pennisetum purpureum per 

§ 80.1426(f)(14), all the following: 

(i) Records related to all requirements 

and duties set forth in the registration 

documents described in 

§ 80.1450(b)(1)(x)(A), including but not 

limited to the Risk Mitigation Plan, 

monitoring records and reports, and 

adherence to state, local and federal 

invasive species requirements and 

permits. 

(ii) Records associated with feedstock 

purchases and transfers that identify 

where the feedstocks were produced 

and are sufficient to verify that 

feedstocks used were produced and 

transported in accordance with an EPA 

approved Risk Mitigation Plan or were 

produced on land that the EPA 

determined does not present a 

significant likelihood of invasive spread 


rmajette on DSK2TPTVN1PROD with RULES
41716 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 

beyond the planting area of the 

feedstock used for production of the 

renewable fuel, including all the 

following: 

(A) Maps or electronic data 

identifying the boundaries of the land 

where each type of feedstock was 

produced. 

(B) Bills of lading, product transfer 

documents, or other commercial 

documents showing the quantity of 

feedstock purchased from each area 

identified above, and showing each 

transfer of custody of the feedstock from 

the location where it was produced to 

the renewable fuel production facility. 

* * * * * 

[FR Doc. 2013–16488 Filed 7–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 395 

[FMCSA–2013–0283] 

Hours of Service; Limited 90-Day 

Waiver From the 30-Minute Rest Break 

Requirement for the Transportation of 

Livestock 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice; grant of waiver. 

SUMMARY: FMCSA grants a limited 90- 

day waiver from the 30-minute rest 

break provision of the Federal hours-ofservice (HOS) regulations for the 

transportation of livestock. Several 

associations representing various 

segments of the livestock industry 

raised concerns about the risks to the 

health of animals from rising 

temperatures inside livestock trucks 

during drivers’ mandatory 30-minute 

break, especially in light of long-range 

weather forecasts for above-normal 

temperatures for July, August and 

September 2013. The industry requested 

relief, and the Agency has determined 

that it is appropriate to grant a limited 

90-day waiver for this period to ensure 

the well-being of the Nation’s livestock 

during interstate transportation. The 

Agency has determined that the waiver, 

based on the terms and conditions 

imposed, would likely achieve a level of 

safety that is equivalent to, or greater 

than, the level that would be achieved 

absent such waiver. This waiver 

preempts inconsistent State and local 

requirements. 

DATES: The waiver is effective July 11, 

2013. The waiver expires on October 9, 

2013. 

FOR FURTHER INFORMATION CONTACT: 

Thomas L. Yager, Chief, Driver and 

Carrier Operations Division, Office of 

Bus and Truck Standards and 

Operations, Federal Motor Carrier Safety 

Administration, 1200 New Jersey Ave. 

SE., Washington, DC 20590. Email: 

MCPSD@dot.gov. Phone (202) 366–4325. 

SUPPLEMENTARY INFORMATION: 

Legal Basis 

The Transportation Equity Act for the 

21st Century (TEA–21) (Public Law 

105–178, 112 Stat. 107, June 9, 1998) 

provides the Secretary of Transportation 

(the Secretary) the authority to grant 

waivers from any of the Federal Motor 

Carrier Safety Regulations (FMCSRs) 

issued under section 31136 or chapter 

313 of title 49, United States Code, to a 

person(s) seeking regulatory relief. (49 

U.S.C. 31136, 31315(a)) The Secretary 

must make a determination that the 

waiver is in the public interest, and that 

it is likely to achieve a level of safety 

that is equivalent to, or greater than, the 

level of safety that would be obtained in 

the absence of the waiver. Individual 

waivers may only be granted to a person 

for a specific unique, non-emergency 

event, for a period up to three months. 

TEA–21 authorizes the Secretary to 

grant waivers without requesting public 

comment, and without providing public 

notice. 

The Administrator of FMCSA has 

been delegated authority under 49 CFR 

1.87(f) to carry out the functions vested 

in the Secretary by 49 U.S.C. chapter 

311, subchapters I and III, relating to 

commercial motor vehicle programs and 

safety regulation. 

Background 

On December 27, 2011 (76 FR 81133), 

FMCSA published a final rule amending 

its hours-of-service regulations for 

drivers of property-carrying commercial 

motor vehicles (CMVs). The final rule 

included several changes to the HOS 

regulations including a new provision 

requiring drivers to take a rest break 

during the work day under certain 

circumstances. Drivers may drive only if 

8 hours or less have passed since the 

end of the driver’s last off-duty period 

of at least 30 minutes. FMCSA did not 

specify when drivers must take the 30- 

minute break, but the rule requires that 

they wait no longer than 8 hours after 

the last off-duty period of that length or 

longer to take that break. Drivers that 

already take shorter breaks during the 

work day could comply with the rule by 

taking one of the shorter breaks and 

extending it to 30 minutes. The new 

requirement took effect on July 1, 2013. 

National Pork Producers Council 

Waiver Request 

On June 19, 2013, FMCSA received a 

request for a 90-day waiver and 

application for an exemption from the 

National Pork Producers Council (the 

Council) on behalf of the following 

organizations: 

• Agricultural and Food Transporters 

Conference of the American Trucking 

Associations; 

• American Farm Bureau Federation; 

• American Feed Industry 

Association; 

• American Meat Institute; 

• Livestock Marketing Association; 

• National Cattlemen’s Beef 

Association; 

• National Chicken Council; 

• National Milk Producers 

Federation; 

• National Pork Producers Council; 

• National Turkey Federation; 

• North American Meat Association; 

• Professional Rodeo Cowboys 

Association; and, 

• U.S. Poultry and Egg Association. 

The Council stated that complying 

with the 30-minute rest break rule will 

cause livestock producers and their 

drivers irreparable harm, place the 

health and welfare of the livestock at 

risk, and provide no apparent benefit to 

public safety, while forcing the livestock 

industry and their drivers to choose 

between the humane handling of 

animals or compliance with the rule. 

The Council explained that the 

process of transporting livestock, 

whether to slaughter, transfer of 

ownership, or for purposes of breeding 

or simply finding forage for feed, is a 

significant concern to the agricultural 

industry. The animals face a variety of 

stresses including temperature, 

humidity, and weather conditions. 

During the summer months, exposure 

to heat is one of the greatest concerns in 

maintaining the animals’ well-being. 

This is especially challenging for the 

transportation of pigs because these 

animals do not sweat and are subject to 

heat stress. When heat stress occurs, a 

pig’s body temperature rises to a level 

that it cannot control through its normal 

panting mechanisms. Under the 

industry’s guidelines, drivers are 

directed to avoid stopping in 

temperatures greater than 80 degrees. 

Drivers are advised to stop only when 

animals will be immediately unloaded 

or when safety becomes an issue. If the 

vehicle must be stopped, drivers are 

required to stay with the animals and 

provide them with water to help keep 

them cool. 

When temperature and humidity 

result in a heat index greater than or 


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