```

[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Rules and Regulations]
[Pages 41703-41716]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16488]

-----------------------------------------------------------------------

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

[[Page 41704]]

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:

----------------------------------------------------------------------------------------------------------------
                                                                                     Examples of potentially
                Category                   NAICS \1\ Codes      SIC \2\ Codes           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).
\2\ Standard 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

[[Page 41705]]

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.

---------------------------------------------------------------------------

    \1\ For purposes of this proposal, the term ``giant reed'' 
refers to the species Arundo donax and ``napier grass'' refers to 
the species Pennisetum purpureum.
---------------------------------------------------------------------------

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 Sec.  80.1426.
---------------------------------------------------------------------------

    \2\ See the Final Regulatory Impact Analysis in support of the 
March 2010 RFS Final Rule, available at http://www.epa.gov/otaq/renewablefuels/420r10006.pdf.
---------------------------------------------------------------------------

    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 Sec.  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.
---------------------------------------------------------------------------

    \3\ See http://www.fs.fed.us/database/feis/plants/graminoid/arudon/all.html.
    \4\ See 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.
---------------------------------------------------------------------------

    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

[[Page 41706]]

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\
---------------------------------------------------------------------------

    \5\ For 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \6\ Huang, 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.
    \7\ Mantineo, M., D'Agnosta, G.M., Copani, V., Patan[egrave], 
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.
    \8\ Lewandowski et al. 2003.
    \9\ Based on discussions with industry and USDA and Woodard and 
Sollenberger (2008).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \10\ These yields assume no significant adverse climate impacts 
on world agricultural yields over the analytical timeframe.
---------------------------------------------------------------------------

    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

[[Page 41707]]

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\
---------------------------------------------------------------------------

    \11\ See Final Regulatory Impact Analysis Chapter 2, February 
2010.
---------------------------------------------------------------------------

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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Switchgrass                                     Giant Reed                                     Napier grass
                                                  ----------------------------------------------------------------------------------------------------------------------------------------------
                                Emission  factors   Inputs  (per dry ton    Emissions (per mmBtu     Inputs (per dry ton    Emissions (per mmBtu     Inputs (per dry ton    Emissions (per mmBtu
                                                         of biomass)                fuel)                of biomass)                fuel)                of biomass)               fuel)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Nitrogen Fertilizer...........  3,29 kgCO2e/ton    15.2 lbs..............  3.6 kgCO2e............  5 lbs.................  1 kgCO2e..............  10 lbs................  2.4 kgCO2e.
                                 of nitrogen.
N2O...........................  N/A..............  N/A...................  7.6 kgCO2e............  N/A...................  4.8 kgCO2e............  N/A...................  7.6 kgCO2e.
Phosphorus Fertilizer.........  1,12 kgCO2e/ton    6.1 lbs...............  0.5 kgCO2e............  7.4 lbs...............  0.6 kgCO2e............  1.1 lbs...............  0.1 kgCO2e.
                                 of phosphate.
Potassium Fertilizer..........  743 kgCO2e/ton of  6.1 lbs...............  0.3 kgCO2e............  7.4 lbs...............  0.4 kgCO2e............  4.0 lbs...............  0.2 kgCO2e..
                                 potassium.
Herbicide.....................  23,45 kgCO2e/tons  0.002 lbs.............  0.003 kgCO2e..........  0.02 lbs..............  0.03 kgCO2e...........  0.4 lbs...............  0.6 kgCO2e.
                                 of herbicide.
Insecticide (average across     27,22 kgCO2e/tons  0.025 lbs.............  0.04 kgCO2e...........  0 lbs.................  0 kgCO2e..............  0 lbs.................  0 kgCO2e.
 regions).                       of pesticide.
Lime..........................  408 kgCO2e/ton of  0 lbs.................  0 kgCO2e..............  0 lbs.................  0 kgCO2e..............  100 lbs...............  2.9 kgCO2e.
                                 lime.
Diesel........................  97 kgCO2e/mmBtu    0.4 gal...............  0.8 kgCO2e............  1.4 gal...............  2.5 kgCO2e............  1.3 gal...............  2.2 kgCO2e.
                                 diesel.
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 Fischer-Tropsch (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

[[Page 41708]]

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.
---------------------------------------------------------------------------

    \12\ The F-T diesel process modeled applies to cellulosic 
diesel, jet fuel, heating oil, and naphtha.
---------------------------------------------------------------------------

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 grass-based 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.
---------------------------------------------------------------------------

    \13\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \14\ Comment 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.
    \15\ Comments 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.
---------------------------------------------------------------------------

    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

[[Page 41709]]

in riparian areas prone to torrential flooding . . . giant reed has 
been grown responsibly in numerous places . . . without problems of 
invasiveness.'' \16\
---------------------------------------------------------------------------

    \16\ Comment 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.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \17\ http://www.gpo.gov/fdsys/pkg/FR-1999-02-08/pdf/99-3184.pdf.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \18\ See http://info.sos.state.tx.us/fids/200701978-1.html. 
Accessed on March 30, 2012.
    \19\ See http://agri.nv.gov/nwac/PLANT_NoxWeedList.htm. 
Accessed on May 23, 2012.
    \20\ See http://pi.cdfa.ca.gov/pqm/manual/pdf/107.pdf. Accessed 
on March 30, 2012.
    \21\ See http://www.gaeppc.org/list.cfm. Accessed on May 23, 
2012.
    \22\ See http://www.fleppc.org/list/2011PlantList.pdf. Accessed 
on May 212, 2013.
    \23\ See http://www.oregon.gov/oisc/docs/pdf/arundo603_052_1206.pdf. Accessed May 20, 2013.
    \24\ Letter from Stephen W. Troxler to Bob Perciasepe, dated 
March 26, 2013. See Docket Number EPA-HQ-OAR-2011-0542-0665.
---------------------------------------------------------------------------

    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 RIN-generating 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.
---------------------------------------------------------------------------

    \25\ CAA Sec.  211(o)(1)(J).
    \26\ CAA Sec. Sec.  211(o)(1)(B), (D), (E).
    \27\ CAA Sec.  211(o)(1)(I).
    \28\ Separately, 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 Sec.  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 Sec.  211(q), 
(v) and EISA Sec.  204.
---------------------------------------------------------------------------

    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.

[[Page 41710]]

    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.
---------------------------------------------------------------------------

    \29\ Comment 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.
    \30\ See http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1044768.pdf.
---------------------------------------------------------------------------

    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, Sec.  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 Sec.  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 Sec.  80.1431, and 
the generation of invalid RINs is a prohibited act under Sec.  
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 Sec.  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

[[Page 41711]]

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.
---------------------------------------------------------------------------

    \31\ See http://www.habitat.noaa.gov/pdf/HACCP%20Training%20Manual.pdf.
    \32\ See http://www.invasivespecies.gov/home_documents/BiofuelWhitePaper.pdf.
    \33\ See http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1044768.pdf.
    \34\ See http://www.oregon.gov/oisc/docs/pdf/arundo603_052_1206.pdf.
    \35\ http://www.invasivespecies.gov/global/EDRR/EDRR_documents/Guidelines%20for%20Early%20Detection %20&%20Rapid%20Response.pdf.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 41712]]

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 state-administered 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 Sec.  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 Sec.  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

[[Page 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

0
1. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7521(1), 7545 and 7601(a).

[[Page 41714]]

0
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:
* * * * *

Sec.  80.1426  How are RINs generated and assigned to batches of 
renewable fuel by renewable fuel producers or importers?

* * * * *
    (f) * * *
    (1) * * *

         Table 1 to Sec.   80.1426--Applicable D Codes for Each Fuel Pathway for Use in Generating RINs
----------------------------------------------------------------------------------------------------------------
                                                                           Production process
                 Fuel type                           Feedstock                requirements            D-Code
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
K Ethanol..................................  Cellulosic Biomass from   Any......................               3
                                              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.
L Cellulosic diesel, jet fuel and heating    Cellulosic Biomass from   Any......................               7
 oil.                                         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.
 
                                                  * * * * * * *
N Naphtha..................................  Cellulosic biomass from   Gasification and                        3
                                              switchgrass,              upgrading.
                                              miscanthus, energy
                                              cane, Arundo donax, and
                                              Pennisetum purpureum.
----------------------------------------------------------------------------------------------------------------

* * * * *
    (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 Sec.  
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 
Sec.  80.1450(b)(1)(x)(B).
* * * * *

0
3. Section 80.1450 is amended by adding paragraph (b)(1)(x) to read as 
follows:

Sec.  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 Sec.  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

[[Page 41715]]

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 state-administered 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 Sec.  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.
* * * * *

0
4. Section 80.1451 is amended by adding paragraph (h) to read as 
follows:

Sec.  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 Sec.  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.

0
5. Section 80.1454 is amended by adding paragraph (b)(7) to read as 
follows:

Sec.  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 Sec.  80.1426(f)(14), all the following:
    (i) Records related to all requirements and duties set forth in the 
registration documents described in Sec.  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

[[Page 41716]]

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
```