*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 1 of 49

EO12866_Additional RFS Pathways_2060-AR85_Final_20130628_CLEAN

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) section 211(o) 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 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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 2 of 49

area. 

DATES: This rule is effective on [INSERT PUBLICATION DATE]. 

FOR FURTHER INFORMATION CONTACT: Edmund Coe, Office of Transportation and 

Air Quality (MC6401A), Environmental Protection Agency, 1200 Pennsylvania Ave., N.W., 

Washington, DC 20460; telephone number: (202) 564-8994; fax number: (202) 564-1686; email 

address: Coe.edmund@Epa.gov. 

SUPPLEMENTARY INFORMATION:

Does This Action Apply to Me?

Entities potentially affected by this action are those involved with the production, 

distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable 

fuels such as ethanol and biodiesel. Regulated categories and entities affected by this action 

include:

Category NAICS1

Codes

SIC

2

Codes

Examples of Potentially Regulated Entities

Industry

Industry

Industry

Industry

Industry

Industry

Industry

324110

325193

325199

424690

424710

424720

454319

2911

2869

2869

5169

5171

5172

5989

Petroleum Refineries

Ethyl alcohol manufacturing

Other basic organic chemical manufacturing

Chemical and allied products merchant wholesalers

Petroleum bulk stations and terminals

Petroleum and petroleum products merchant 

wholesalers

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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 3 of 49

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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 4 of 49

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 this 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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 5 of 49

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 

under the RFS program. EPA’s comprehensive lifecycle analyses in the January 5, 2012 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 6 of 49

proposal show significant lifecycle GHG emission reductions from fuels produced from giant 

reed and napier grass, as compared to the baseline (petroleum-based) gasoline or diesel fuel that 

they replace. However, the lifecycle analyses assume no significant indirect greenhouse gas 

emissions associated with actions to remove or remediate the unintended spread of these 

feedstocks outside of the intended planting area. This rule includes provisions designed to 

ensure that this assumption is realized, and were developed in response to comments raised 

during the public comment period. 

B. Summary of the Major Provisions of this Regulatory Action 

This rule approves new pathways for production of cellulosic biofuel from giant reed and 

napier grass as feedstocks. The rule also includes several provisions addressing invasiveness 

concerns regarding giant reed or napier grass when it is grown as a feedstock for production of 

renewable fuel.1 These provisions require either a demonstration by the renewable fuel producer 

that the giant reed or napier grass will not pose a significant likelihood of spread beyond its 

intended planting area, or approval by EPA of a Risk Mitigation Plan developed by the fuel 

producer that demonstrates the giant reed or napier grass will not pose a significant likelihood of 

spread beyond its intended the planting area. EPA’s use of the term “no significant likelihood of 

spread beyond the planting area” means that it is highly unlikely there will be such spread. EPA 

is also including related registration, reporting, and recording keeping requirements.

II. Additional Qualifying Renewable Fuel Pathways under the Renewable Fuel 

Standard (RFS) Program, Using Giant Reed and Napier Grass

 

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.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 7 of 49

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 highyielding 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).2Therefore in the final rule EPA concluded that since biofuel 

made from the cellulosic biomass in switchgrass was found to satisfy the 60% GHG reduction 

 

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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 8 of 49

threshold for cellulosic biofuel, biofuel produced from the cellulosic biomass in miscanthus 

would also comply. In the final rule we included cellulosic biomass from switchgrass and 

miscanthus as eligible feedstocks for the cellulosic biofuel pathways included in Table 1 to §

80.1426. 

We did not include other perennial grasses such as giant reed or napier grass as 

feedstocks for the cellulosic biofuel pathways in Table 1 at that time, since we did not have 

sufficient time to adequately consider them. Based in part on additional information received 

through the petition process for EPA approval of giant reed and napier grass pathways, EPA has 

evaluated these feedstocks and is now including these feedstocks in Table 1 to § 80.1426 as 

approved pathways for cellulosic biofuel pathways.

As described in detail in the following sections of this preamble, because of the similarity

of these feedstocks to switchgrass and miscanthus, EPA believes that new agricultural sector 

modeling is not needed to analyze them. We have instead relied upon the switchgrass analysis to 

assess the relative GHG impacts of biofuel produced from giant reed and napier grass. As with 

the switchgrass analysis, we have attributed all land use impacts and resource inputs from use of 

these feedstocks to the portion of the fuel produced that is derived from the cellulosic 

components of the feedstocks. Based on this analysis and currently available information, we 

conclude that biofuel (ethanol, cellulosic diesel, jet fuel, heating oil and naphtha) produced from 

the cellulosic biomass of giant reed or napier grass has similar lifecycle GHG impacts to 

switchgrass biofuel and meets the 60% GHG reduction threshold required for cellulosic biofuel. 

A. Feedstock Production and Distribution

For the purposes of this rulemaking, Giant reed refers to the perennial grass Arundo 

donax of the Poaceae family. Giant reed thrives in subtropical and warm-temperate areas and is 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 9 of 49

grown throughout Asia, southern Europe, Africa, the Middle East, and warmer U.S. states for 

multiple uses such as paper and pulp, musical instruments, rayon, particle boards, erosion 

control, and ornamental purposes.3,4 Based in part on discussions with industry, EPA anticipates 

continued development of giant reed as an energy crop particularly in the Mediterranean region 

and warmer U.S. states. 

Napier grass is a tall bunch-type grass that has traditionally been grown as a highyielding 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 particularly in Gulf Coast Region of the United States (more specifically the 

growing region includes Florida and southern portions of Texas, Louisiana, Georgia, Alabama 

and Mississippi).5

1. Crop Yields

For the purposes of analyzing the GHG emissions from giant reed and napier grass 

production, EPA examined crop yields and production inputs in relation to switchgrass to assess 

the relative GHG impacts. Current national yields for switchgrass are approximately 4.5 to 5 dry

tons per acre. Giant reed field trials conducted in Alabama over a 9-year period showed an 

 

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 US and Europe. Biomass and Bioenergy 25, 335-361.

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.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 10 of 49

average yield of 15 dry tons per acre with no nitrogen fertilizer applied after the first year.6

Fertilized field trials have shown yields around 13 to 28 dry tons per acre in Spain, and 12 dry

tons per acre in Italy (based on annual yields of 3, 14, 17, 16, and 12).7 High yields have been 

demonstrated with unimproved giant reed populations, and therefore there is potential for 

increased biomass productivity through improved growing methods and breeding efforts.8 

Napier grass field trials have produced dry biomass yields exceeding 20 tons per acre per year in 

north-central Florida. Using currently available technology, average yields for full-season napier 

grass should range from 14 to 18 tons per acre with future improvements expected. Yield 

depends greatly on the type of cultivar and the amount and distribution of rainfall and 

fertilization rates. There is potential for increased biomass productivity through improved 

growing methods and breeding efforts.9 In general, the yields for both of the energy grasses 

considered here will have higher yields than switchgrass, so from a crop yield perspective, the 

switchgrass analysis would be a conservative estimate when comparing against the napier grass, 

and giant reed pathways. 

Furthermore, EPA’s analysis of switchgrass for the March 2010 RFS rule (75 FR 14791) 

assumed a 2% annual increase in yield that would result in an average national yield of 6.6 dry

tons per acre in 2022. EPA anticipates a similar yield improvement for giant reed and napier 

grass due to their similarity as perennial grasses and their comparable status as energy crops in 

 

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., Patanè, 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)
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 11 of 49

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 202210. The ethanol yield for all of the grasses is approximately the same 

so the higher crop yields for napier grass and giant reed result directly in greater ethanol 

production compared to switchgrass per acre of production. 

Based on these yield assumptions, in areas with suitable growing conditions, giant reed 

would require less than 40% of the land area required by switchgrass to produce the same 

amount of biomass and napier grass would require approximately 33% of the land area required 

by switchgrass to produce the same amount of biomass due to their higher yields. Even without 

yield growth assumptions, their currently higher crop yield rates means the land use required for 

these crops would be lower than for switchgrass. Therefore less crop area would be converted 

and displaced resulting in smaller land-use change GHG impacts than that assumed for 

switchgrass to produce the same amount of fuel. Furthermore, we believe napier grass will have 

a similar impact on international markets as assumed for switchgrass. Like switchgrass, napier 

grass is not expected to be traded internationally and its impacts on other crops are expected to 

be limited. Increased giant reed demand in the U.S. for biofuels is not expected to impact 

existing markets for giant reed, which are relatively small niche markets (e.g., musical 

instrument reeds). 

2. Land Use

In EPA’s March 2010 RFS final rule analysis, switchgrass plantings displaced primarily 

soybeans and wheat, and to a lesser extent hay, rice, sorghum, and cotton. Napier grass, with 

production focused in the southern United States, is likely to be grown on land once used for 

 

10 These yields assume no significant adverse climate impacts on world agricultural yields over the analytical 

timeframe. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 12 of 49

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.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 13 of 49

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 analysis took into account 

the economic conditions such as input costs and commodity prices when evaluating the GHG 

and land use change impacts of switchgrass.11 

3. Crop Inputs and Feedstock Transport

EPA also assessed the GHG impacts associated with planting, harvesting, and 

transporting giant reed and napier grass feedstocks in comparison to switchgrass. Table 1 shows 

the assumed 2022 commercial-scale production inputs for switchgrass (used in the March 2010 

RFS final rule analysis), average giant reed and napier grass production inputs (USDA 

projections and industry data) and the associated GHG emissions. 

Available data gathered by EPA suggest that giant reed may require on average less 

nitrogen and insecticide than switchgrass, but more phosphorous, potassium, herbicide, diesel, 

and electricity per unit of biomass. Napier grass may require similar amounts of nitrogen 

fertilizer application as switchgrass, less phosphorous, potassium and insecticide than 

switchgrass, but more herbicide, lime, diesel and electricity per unit of biomass. See Table 1 

below.

This assessment assumes production of these two new feedstocks uses electricity for 

irrigation given that growers will likely irrigate when possible to improve yields. Irrigation rates 

 

11 See Final Regulatory Impact Analysis Chapter 2 , February 2010.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 14 of 49

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).
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During Review *** 

Page 15 of 49

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 of 

biomass)

Emissions

(per mmBtu 

fuel)

Inputs

(per dry 

ton of 

biomass)

Emissions

(per mmBtu 

fuel)

Inputs

(per dry ton 

of biomass)

Emissions

(per mmBtu fuel)

Nitrogen Fertilizer 3,29 

kgCO2e/

ton of 

nitrogen

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

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

Phosphorus Fertilizer 1,12 

kgCO2e /

ton of 

phosphate

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

Potassium Fertilizer 743

kgCO2e /

ton of 

potassium

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

Herbicide 23,45 

kgCO2e /

tons of 

herbicide

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

Insecticide (average 

across regions) 27,22 

kgCO2e /

tons of 

pesticide

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

Lime 408 

kgCO2e /

ton of 

lime

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

Diesel 97

kgCO2e /

mmBtu 

diesel

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

Electricity (irrigation) 220 kgCO2e /

mmBtu 0 kWh 0 kgCO2e 10 kWh 1 kgCO2e 25 kWh 2.7 kgCO2e

Total Emissions

13

kgCO2e 

/

mmBtu

11

kgCO2e 

/

mmBtu

19 kgCO2e /

mmBtu

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

2022 napier grass yield of 20 dry tons/acre and 92.3 gal ethanol/dry ton. More detail on calculations and assumptions is included in materials to the docket. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 16 of 49

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) diesel12) 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 production, and the fuel was shipped to the 

 

12 The F-T diesel process modeled applies to cellulosic diesel, jet fuel, heating oil, and naphtha.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 17 of 49

U.S., shipping the finished fuel to the U.S. could increase transport emissions. However, based 

on analysis of the increased transport emissions associated with sugarcane ethanol distribution to 

the U.S. considered for the 2010 final rule, this would at most add 1-2% to the overall lifecycle 

GHG impacts of the energy grasses. 

C. Summary

Based on our comparison of switchgrass and the two feedstocks considered here, EPA 

believes that cellulosic biofuel produced from the cellulose, hemicellulose and lignin portions of 

giant reed and napier grass has similar or better lifecycle GHG impacts than biofuel produced 

from the cellulosic biomass from switchgrass. Our analysis suggests that the two feedstocks 

considered have GHG impacts associated with growing and harvesting the feedstock that are 

similar to switchgrass. Emissions from growing and harvesting giant reed are approximately 2 

kg CO2eq/mmBtu lower than switchgrass, and emissions from growing and harvesting napier 

grass are approximately 6 kg CO2eq/mmBtu higher than switchgrass. These are small changes 

in the overall lifecycle, representing at most a 6% change in the energy grass lifecycle impacts in 

comparison to the petroleum fuel baseline. Furthermore, the two feedstocks considered are 

expected to have similar or lower GHG emissions than switchgrass associated with other 

components of the biofuel lifecycle. 

Under a hypothetical worst case, if the calculated increases in growing and harvesting the 

new feedstocks are incorporated into the lifecycle GHG emissions calculated for switchgrass, 

and other lifecycle components are projected as having similar GHG impacts to switchgrass 

(including land use change associated with switchgrass production), the overall lifecycle GHG 

reductions for biofuel produced from giant reed and napier grass still meet the 60% reduction 

threshold for cellulosic biofuel, the lowest being a 64% reduction (for napier grass diesel 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 18 of 49

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 

 

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). 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 19 of 49

of feedstock or fuel potentially coming from other countries will not impact our threshold 

analysis. 

Based on our assessment of switchgrass in the March 2010 RFS final rule and this 

comparison of GHG emissions from switchgrass and giant reed and napier grass, we do not 

expect variations to be large enough to bring the overall GHG impact of fuel made from giant 

reed or napier grass to come close to the 60% threshold for cellulosic biofuel. Therefore, EPA is 

including cellulosic biofuel produced from the cellulose, hemicelluloses and lignin portions of 

giant reed and napier grass under the same pathways for which cellulosic biomass from 

switchgrass qualifies under the RFS program. 

III. Additional Provisions Addressing Invasiveness Concerns for Giant Reed and 

Napier Grass 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 20 of 49

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 

 

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, US Government Affairs, The Nature Conservancy et al., 

dated February 6, 2012. Document ID # EPA-HQ-OAR-2011-0542-0119.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 21 of 49

Executive Order (EO) 13112.

EPA also received comments stating that giant reed is not “invasive” as defined by EO 

13112, since giant reed “only presents problems of invasiveness in riparian areas prone to 

torrential flooding... giant reed has been grown responsibly in numerous places...without 

problems of invasiveness.”16 

EO 13112, signed in February 1999, calls for each federal agency “to the extent 

practicable and permitted by law...not authorize, fund, or carry out actions that it believes are 

likely to cause or promote the introduction or spread of invasive species in the United States or 

elsewhere unless, pursuant to guidelines that it has prescribed, the agency has determined and 

made public its determination that the benefits of such actions clearly outweigh the potential 

harm caused by invasive species; and that all feasible and prudent measures to minimize risk of 

harm will be taken in conjunction with the actions.”17 The Executive Order defines “invasive 

species” as “an alien species whose introduction does or is likely to cause economic or 

environmental harm or harm to human health.” 

Giant reed is listed as a noxious or invasive species by Texas,

18 Nevada,19 and 

California,

20 and these states have programs in place to address invasive species concerns. 

Several other states also consider giant reed a problem or threat21 and napier grass is currently

 

16Comment submitted by R. Timothy Columbus and Christopher G. Falcone, Steptoe & Johnson LLP on behalf of 

The Chemtex Group, dated February 13, 2012. Document ID# EPA-HQ-OAR-2011-0542-0124. 

17

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

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 Seehttp://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.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 22 of 49

not recommended in Florida because of invasive potential.22 While not prohibiting its planting, 

Oregon has promulgated strict regulations for the cultivation of giant reed anywhere in the 

state.23 Other states, such as North Carolina, have specifically determined that giant reed does 

not warrant listing as a noxious weed in their state.24

In the January 5, 2012 proposal, EPA included the proposed lifecycle analysis of giant 

reed and napier grass. As discussed below, EPA’s lifecycle analysis of the renewable fuel 

produced from these feedstocks assumes there are no significant indirect greenhouse gas 

emissions associated with the spread and subsequent remediation of these feedstocks when 

grown for biofuel production for the RFS program. Based on this assumption, the lifecycle 

analysis does not include any expenditures of energy or other sources of GHGs to remediate the 

spread of these species, such as mechanical removal or chemical control activities, outside of the 

locations where it is grown as a renewable fuel feedstock for the RFS program. 

EPA is not in a position to estimate the magnitude of GHG emissions that might be 

associated with any such remediation if the plants are not controlled in this manner at these 

locations. Given this uncertainty, EPA is not ready at this time to determine the percent reduction 

in lifecycle GHG emissions and whether it satisfies the threshold reduction in GHGs required 

under the Act, absent such an assumption. Therefore EPA believes it is prudent to require 

renewable fuel producers to commit to the necessary long-term mechanisms to demonstrate that 

their production of renewable fuel from giant reed or napier grass is consistent with this 

assumption, as a condition of approval as a RIN-generating producer of renewable fuel under the 

 

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-OAR2011-0542-0665. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 23 of 49

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 a Risk Mitigation 

Plan 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 a Risk 

Mitigation Plan 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) 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 24 of 49

requirements are described in more detail below. 

The CAA defines renewable fuel as fuel produced from renewable biomass,

25 and the 

definitions of categories of renewable fuel, i.e., advanced biofuel, biomass-based diesel, and 

cellulosic biofuel, specify the fuels’ lifecycle GHG emissions compared to baseline gasoline or 

diesel fuel GHG emissions.

26

 The definition of renewable biomass also specifies certain 

conditions that biomass must meet to be considered renewable biomass.27 The definitions of 

renewable biomass and renewable fuels do not specifically address the potential environmental 

impacts associated with the use of potentially invasive species as feedstocks.

28 Given the text and 

structure of section 211(o), EPA does not consider environmental factors other than the lifecycle 

analysis of GHG emissions and the definition of renewable biomass in determining whether a 

fuel produced from biomass is a renewable fuel for purposes of the RFS program. 

The requirements for producers summarized above and discussed in more detail below 

are a reasonable way to implement this authority when considering the full lifecycle GHG 

emissions for renewable fuel produced from giant reed and napier grass. EPA has included 

additional registration, recordkeeping, and reporting requirements in this rule, to address EPA’s 

lifecycle analysis and concerns related to the spread of invasive species.

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 

 

25 CAA § 211(o)(1)(J).

26 CAA §§ 211(o)(1)(B), (D), (E). 

27 CAA § 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 § 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 section 211(q), (v) and Section 204 of EISA. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 25 of 49

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 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.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 26 of 49

The spread of potentially invasive feedstocks is also controlled by some states. For 

example, in Florida, biomass plantings are governed by FL Rule 5B-57.011. According to the 

rule, a permit for biomass plantings is required for two contiguous acres within one parcel of 

land for any plant used for biomass production. The purpose of the permitting process is to 

control the introduction into, or movement within, Florida of plant species intended for biomass 

plantings. One provision of the process is that no biomass permit shall be issued for any planting 

of plants on the state noxious weed list or the federal noxious weed list. In 2009, a company, 

White Technologies LLC, applied for and received a permit to grow 80 acres of giant reed under 

the Florida program. 

Under Oregon State Statutes, Chapter 570, § 570.405, the Oregon Department of 

Agriculture may establish control areas if after careful investigation it determines that such areas 

are necessary for the general protection of the horticultural, agricultural or forest industries of the 

state from diseases, insects, animals or noxious weeds. In March of 2011, the State created a 

control area for giant reed in Morrow and Umatilla Counties. The regulation, with restrictions, 

allowed for up to 400 acres of giant reed to be grown in Morrow and Umatilla Counties for 

providing biomass for a test burn at the Portland General Electric Boardman Power Plant. 

 Given the potential for greenhouse gas emissions associated with remediation of the 

spread of giant reed and napier grass, EPA believes it is prudent to allow RINs to be generated 

for fuel produced from these feedstocks only if they are grown, transported, and used to produce 

fuel in a manner that is consistent with our lifecycle analysis. EPA is requiring that producers of 

renewable fuel derived from giant reed and napier grass must submit a Risk Mitigation Plan to 

ensure that the production of giant reed or napier grass will not pose a significant likelihood of 

spread beyond the planting area of the feedstock used for production of the renewable fuel. EPA 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 27 of 49

would consult with the appropriate responsible governmental agencies, including USDA, about 

the Risk Mitigation Plan, and would approve it if it meets the regulatory criteria described in 

§80.1450(b)(1)(ix)(A). The producer or importer may only generate RINs for fuel produced 

from these feedstocks if the feedstocks were grown and transported in compliance with an EPA 

approved Risk Mitigation Plan and if the producer follows the approved Risk Mitigation Plan. If 

the Risk Mitigation Plan for a particular feedstock is not performed, any RINs generated for fuel 

produced from that feedstock are invalid under §80.1431, and the generation of invalid RINs is a 

prohibited act under §80.1460(b)(2), subject to civil penalties.

Alternately, the producer could submit information and data showing that no Risk 

Mitigation Plan 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 a Risk Mitigation Plan is not needed, the recordkeeping requirements 

nonetheless require the producer or importer to notify EPA within five (5) days of any reported 

growth of the feedstock outside the intended planting area. This will allow EPA to keep track of 

the growth and possible invasive nature of the feedstock. Also, as per §80.1450(b)(2), the 

producer or importer must submit an independent engineering report every three years verifying 

all the information submitted at registration. This will include the producer or importer’s 

demonstration that the feedstock presents no substantial likelihood of spread beyond the 

intended planting area. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 28 of 49

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 Risk Mitigation Plan 

(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 Risk Mitigation Plan, the producer would demonstrate how 

the use of best management practices (BMPs), such as those developed by the Invasive Species 

Advisory Committee32 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., 

 

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. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 29 of 49

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 a Risk 

Mitigation Plan; 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 Risk Mitigation Plan 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 a Risk Mitigation Plan to prevent escapes after active crop production and 

management operations have stopped. 

Furthermore, the Risk Mitigation Plan 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 

 

35http://www.invasivespecies.gov/global/EDRR/EDRR_documents/Guidelines%20for%20Early%20Detection%20

&%20Rapid%20Response.pdf. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 30 of 49

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 Risk Management Plan on an annual basis as part of the producer or 

importer’s fourth quarterly report as set out in §80.1451(h)(5), subject to approval of a different 

frequency by EPA. For growers who are new to growing or harvesting invasive feedstocks, more 

frequent monitoring or reporting may be required for the first growing cycle. It will be the 

responsibility of the renewable fuel producer to identify this competent independent third party

as part of its registration application. Any future changes to the use of a different independent 

third party, or changes to any EPA approved management or monitoring mechanisms or 

practices must be documented in a revised Risk Mitigation Plan, 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 Risk Mitigation Plan (where such a plan is required) would 

be invalid. 

The recordkeeping and reporting provisions would require producers to obtain 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 31 of 49

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 a Risk Mitigation Plan 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 a Risk Mitigation Plan 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 a Risk 

Mitigation Plan or from land that EPA has determined will not create a significant likelihood of 

spread beyond the planting area.

If submitting a Risk Mitigation Plan, 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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 32 of 49

of the feedstock, establishing the parties’ rights and duties related to the Risk Mitigation Plan 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 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 a Risk Mitigation Plan 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 a Risk Mitigation Plan (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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 33 of 49

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 Risk Mitigation Plan is not performed as intended, any

RINs generated for fuel produced from that feedstock are invalid under §80.1431, and the 

generation of such invalid RINs is a prohibited act subject to civil penalties. Those penalties 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 34 of 49

would be assessed according to CAA §211(d)(1), amounting to up to $37,500 per violation per 

day plus any economic benefit or savings resulting from the violations. 

III. 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
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 35 of 49

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, 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 36 of 49

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 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 EO 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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 37 of 49

section 5–501 of the EO has the potential to influence the regulation. This action is not subject to 

EO 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.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 38 of 49

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 (EO) 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 lowincome 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 (EO) 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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 39 of 49

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).

IV. 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). 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 40 of 49

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)

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: ____________________________

__________________________________

Bob Perciasepe,

Acting Administrator

Billing Code: 6550-50-P
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 41 of 49

For the reasons set forth in the preamble, 40 CFR part 80 is amended as follows:

PART 80 — REGULATION OF FUELS AND FUEL ADDITIVES

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

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

2. Section 80.1426 is amended by adding new feedstocks to Rows K, L, and N of Table 1 in 

paragraph (f)(1), and by adding paragraph (f)(14) to read as follows:

* * * * *

§80.1426 How are RINs generated and assigned to batches of renewable fuel by 

renewable fuel producers or importers?

* * * * *

(f) * * *

(1) * * *

Table 1 to §80.1426—Applicable D Codes for Each Fuel Pathway for Use in Generating 

RINs

Fuel type Feedstock Production process 

requirements

D-Code

* * * * * * *

K Ethanol Cellulosic Biomass from 

crop residue, slash, precommercial thinnings and 

tree residue, annual 

covercrops, switchgrass, 

miscanthus, Energy cane, 

Arundo donax, and

Pennisetum purpureum ; 

Any 3
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 42 of 49

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 oil

Cellulosic Biomass from 

crop residue, slash, precommercial thinnings and 

tree residue, annual 

covercrops, switchgrass, 

miscanthus, energy cane, 

Arundo donax, and

Pennisetum purpureum ; 

cellulosic components of 

separated yard waste; 

cellulosic components of 

separated food waste; and 

cellulosic components of 

separated MSW

Any 7

* * * * * * *

N Naphtha Cellulosic biomass from 

switchgrass, miscanthus, 

energy cane, Arundo donax, 

and Pennisetum purpureum

Gasification and upgrading 3

* * * * *

(14) A producer or importer of renewable fuel using giant reed (Arundo donax) or napier grass 

(Pennisetum purpureum) as a feedstock may generate RINs for that renewable fuel if:

(i) The feedstock is produced, managed, transported, collected, monitored, and processed 

according to a Risk Mitigation Plan approved by EPA under the registration procedures specified 

in §80.1450(b)(1)(x)(A); or,
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 43 of 49

(ii) EPA has determined that there is not a significant likelihood of spread beyond the 

planting area of the feedstock used for production of the renewable fuel. Any determination that 

Arundo donax or Pennisetum purpureum does not present a significant likelihood of spread 

beyond the planting area must be based upon clear and compelling evidence, including 

information and supporting data submitted by the producer. Such a determination must be made 

by EPA as specified in §80.1450(b)(1)(x)(B).

* * * * *

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

§ 80.1450 What are the registration requirements under the RFS program?

* * * * *

(b) * * *

(1) * * *

(x)(A) For a producer of renewable fuel made from Arundo donax or Pennisetum purpureum per 

§80.1426(f)(14)(i):

(1) A Risk Mitigation Plan (Plan) that demonstrates the growth of Arundo donax or Pennisetum 

purpureum will not pose a significant likelihood of spread beyond the planting area of the 

feedstock used for production of the renewable fuel. The Plan must identify and incorporate best 

management practices (BMPs) into the production, management, transport, collection, 

monitoring, and processing of the feedstock. To the extent practicable, the Risk Mitigation Plan 

should utilize a Hazard Analysis Critical Control Point (HACCP) approach to examine each 

phase of the pathway to identify spread reduction steps. BMPs should include the development 

of mitigation strategies and plans to minimize escape and other impacts (e.g., minimize soil 

disturbance), incorporate desirable traits (e.g., sterility or reduced seed production), develop and 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 44 of 49

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 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 45 of 49

beyond the 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. 
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 46 of 49

(8) Information on the financial resources or other financial mechanism (such as a stateadministered 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 

§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.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 47 of 49

(2) A letter from the United States Department of Agriculture (“USDA”) to the renewable fuel

producer stating USDA’s conclusions and the bases therefore regarding whether the Arundo 

donax or Pennisetum purpureum does or does not present a significant likelihood of spread 

beyond the planting area of the feedstock used for production of the renewable fuel as proposed 

by the producer or importer. In coordination with USDA, EPA shall identify for the producer the 

appropriate USDA office from which the letter should originate.

(C) EPA may suspend a producer’s registration for purposes of generating RINs for renewable 

fuel using Arundo donax or Pennisetum purpureum as a feedstock if such feedstock has spread 

beyond the intended planting area. 

* * * * *

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

§80.1451 What are the reporting requirements under the RFS program?

* * * * *

(h) Producers or importers of renewable fuel made from Arundo donax or Pennisetum 

purpureum per §80.1426(f)(14) must report all the following: 

(1) Any detected growth of Arundo donax or Pennisetum purpureum outside the intended 

planting area, within 5 business days after detection and in accordance with the Risk Mitigation 

Plan, if applicable.

(2) As available, any updated information related to the Risk Mitigation Plan, as applicable. An 

updated Risk Mitigation Plan must be approved by the Administrator in consultation with USDA 

prior to its implementation.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 48 of 49

(3) On an annual basis, a description of and maps or electronic data showing the average and 

total size and prior use of lands planted with Arundo donax or Pennisetum purpureum, the 

average and total size and prior use of lands set aside to control the invasive spread of these 

crops, and a description and explanation of any change in land use from the previous year. (4) 

On an annual basis, the report from an independent third party auditor evaluating monitoring and 

reporting activities conducted in accordance with the Risk Mitigation Plan, as applicable subject 

to approval of a different frequency by EPA. 

(5) Information submitted pursuant to paragraphs (h)(3) and (h)(4) of this section must be 

submitted as part of the producer or importer’s fourth quarterly report, which covers the 

reporting period October – December, according to the schedule in paragraph (f)(2) of this 

section.

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

§80.1454 What are the recordkeeping requirements under the RFS program?

* * * * *

(b) * * *

(7) For any producer of renewable fuel made from Arundo donax or Pennisetum purpureum per 

§80.1426(f)(14), all the following:

(i) Records related to all requirements and duties set forth in the registration documents 

described in §80.1450(b)(1)(x)(A), including but not limited to the Risk Mitigation Plan, 

monitoring records and reports, and adherence to state, local and federal invasive species 

requirements and permits.
*** E.O. 12866 and E.O. 13563 Review. – Revised Version – Do Not Cite, Quote, or Release During 

Review *** 

Page 49 of 49

(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 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.

* * * * *