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[PREAMBL E EXCERPT] **A. Summary of Comments**  **and EPA response on Invasive Species**  In response to the proposed rule, EPA received comments highlighting the concern that by approving certain new feedstock t ypes under the RFS program, EPA would be encouraging their introduction or expanded planting without considering their potential impact as invasive species. 1 The degree of concern expressed b y the commenters depended somewhat on the feedstock. As pointed out by the commenters, camelina and energy cane are not “native species,” defined as “a species that, other than as a result of an introduction, historically occurred or currently

occurs in that ecosy stem.” The commenters asserted that there is a “potential risk posed by the non

- native species camelina and energy cane.” In contrast, comments stated that Arundo donax (giant reed) and napier grass have been identified as invasive species in certain parts of the country . These commenters asserted that the Arundo donax and napier grass pose a “clear risk of i nvasion.” Commenters stated that EPA should not approve the proposed feedstocks until EPA has conducted an invasive species analy sis, as required under Executive Order (EO) 13112. EPA also received comments stating that Arundo donax is not “invasive” as d efined b y EO 13112, since Arundo donax “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.” 2 EO 13112, 3 signed in February 1999 , calls for each Federal agency whose actions may

affect the status of invasive species “to the extent practicable and permitted by law ” :

1 Comment submitted by Jonathan Lewis, Senior Counsel, Climate Policy, Clean Air Task Force et al., dated February 6, 2012. Document ID # EPA

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- 0118. 2 Comment submitted by R. Timothy Columbus and Christopher G. Falcone, Steptoe & Johnson LLP on behalf of The Chemtex Group, dated February 13, 2012. Document ID# EPA

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- 0124. 3 http://www.gpo.gov/fdsys/pkg/FR

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 identify

such actions;

 subject to the availability of appropriations, and within Administration budgetary limits,
use relevant programs and authorities to: (i) prevent the introduction of invasive species; (ii) detect and respond rapidly to and control populations of such species in a cost

effective and environmentally sound manner; (iii) monitor invasive species populati ons accuratel y and reliabl y; (iv) provide for restoration of native species and habitat conditions in ecosy stems that have been invaded; (v) conduct research on invasive species and develop technologies to prevent introduction and provide for environmental ly sound control of invasive species; and (vi) promote public education on invasive species and the means to address them; and

 not authorize, fund, or carry out actions that it believes are likel y 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 clearl y outweigh the potential harm caused b y invasive species; and that all feasible and prudent measures to minimize risk of harm will be taken in conjunction with the actions.

 Federal agencies shall pursue the duties set forth in this section in consultation with the Invasive Species Council, consistent with the Inva sive Species Management Plan and in cooperation with stakeholders, as appropriate, and, as approved b y the Department of State, when Federal agencies are working with international organizations and foreign nations.” 4 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.” The
4 EO 13112 § 2(a)

- (b) (1999).3

Executive Order calls for agencies to address the issue of invasive species “to the extent practicable and permitted b y law,” in situations where agencies “authorize, fund, or carry out actions that it believes are likely to cause or promote the introduction or spread of invasive species.” In this rulemaking, EPA is determin ing whether certain biofuels meet the statutory requirements for renewable fuel, which is defined in terms of a specified percent reduction in a lifecy cle emissions of GHGs compared to the lifecy cle emissions for a baseline gasoline or diesel. The focus of this rulemaking is the lifecy cle anal ys is fo r the production and use of biofuels, with cultivation of the crops used as feeds tock as a critical component of the GHG lifecy cle anal ys is of the biofuel

. None of the feedstocks included in this rulemaking are currentl y on the Federal Noxious Weed L ist

. 5 H owever, this list is not exhaustive and is generall y limited to species that are not currentl y in the U.S. or are incipient to the U.S. Arundo donax is listed as a noxious or invasive species b y Texas, 6 Nevada, 7 and California, 8 and these states have programs in place to address invasive species concerns. Several other states also consider Arundo donax a plant of concern, 9 and napier grass is currently not recommended in Florida because of invasive potential. 10 As discussed below, EPA’s lifecy cle anal ys is of the biofuel assumes that if these feedstock s are grown for biofuel production for the RFS program , they are controlled to grow within their intended borders . Based on this assumption, in the lifecycle anal ys is EPA doe s not acco unt for

5 See http://plants.usda.gov/java/noxious?rptType=Federal&statefips=&sort=sc

. Accessed on March 28, 2012. 6 See http://info.sos.state.tx.us/fids/200701978

- 1.html . Accessed on March 30, 2012. 7 See http://agri.nv.gov/nwac/PLANT_NoxWe edList.htm . Accessed on May 23, 2012 8 See http://pi.cdfa.ca.gov/pqm/manual/pdf/107.pdf . Accessed on March 30, 2012. 9 See http://www.gaeppc.or g/list.cfm , a ccessed on May 23, 2012 ; s ee http://www.se

- eppc.org/pubs/scbooklet.pdf , a ccessed on March 30, 2012 ; s ee http://www.dcr.virginia.gov/natural_heritage/documents/invlist.pdf , a ccessed on March 30, 2012 ; s ee http://www.tneppc.org/invasive_plants . Accessed on March 30, 2012.
10 IFAS Assessment of Non

- native Plants in Florida’s Natural Areas, 2009.4

any expenditures of energy or other sources of GHGs to remediate the spread of these species from the specific 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 . EPA is not read y at this time to make a determination about the percent reduction in lifecy c le GHG emissions and whether it sat isfies the thre s ho ld reduction in GHGs required under the Act, absent such an assumption

. Therefore EPA believes it is prudent to require renewable fuel producers to demonstrate that the production of Arundo donax and na pier grass as a feedstock for a renewable fuel i s consistent with this assumption, as part of the pathway approved in this rulemaking. The information before us does not raise significant concerns about the threat of invasiveness and related GHG emissions for camelina and energy cane . Neither camelina nor energy cane are listed on any

state invasive species or noxious weed lists, and therefore we are not requiring that this demonstration be made for these feedstocks. As part of the registration, recordkeeping, and reporting (RRR) requirements of the RFS program, EPA will have to approve a risk mitigation plan , submitted by the producer, that demonstrates the production of Arundo donax or napier grass will not pose a si gnificant risk of spread bey ond the planting area of the feedstock used for production of the renewable fuel

. In the alternative , EPA will have to determine, based on information and data submitted by the producer, that no risk mitigation plan is needed b ecause under the circumstances present Arundo donax or nap ier grass do not pose a significant risk of spread bey ond the planting area of the feedstock used for production of the renewable fuel. R egistration of the producer or importer will require either EPA approval of a risk mitigation plan or an EPA determination that no plan is needed based on the determination noted above. RI Ns may not be generated for that facility5

using that feedstock pathway absent such approval or determination . These RRR requ irements are described in more detail in Section XXX
. Section 211(o) of the CAA defines renewable fuel as fuel produced from renewable biomass, and defines categories of renewable fuel in terms of reductions in lifecy cle GHG emissions compared to the baseline gasoline or diesel fuel. Section 211(o)(1)(B),(D),(E),(J). The definition of renewable biomass also specifies certain conditions that biomass must meet to be considered renewable biomass. Section 211(o)(1)(I). T he definition s of renewable biom ass and renewable fuel do not refer to the wide variet y of factors other than greenhouse gases that may relate to the impact of the biomass or the fuel on air quality , the environment, and various other impacts. Separately , Congress does specify that EPA is to consider these kinds of factors, including environmental impacts of the production and use of renewable fuels, in the context of determining the required volumes of renewable fuel for ye ars where Congress does not specify specific volumes. Section 2 11(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 th e RFS program . See CAA section 211(q), (v) and Secti on 204 of EI SA

. Given the text and structure of section 211(o), EPA does not consider environmental factors other than the lifecy cle analy sis 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 summarized above and discussed in more detail below are a reasonable way to implement this authority when considering Arundo donax and napier grass as a feedstock for renewable fuel under the RFS program. EPA developed those requirements recognizing there are a number of state, federal, and local mechanisms in place that could be used to reduce the potential invasive impacts of Arundo6

donax or napier grass . For example, if producers were to appl y for the Biomass Crop Assistance Program (BCAP), the United States Department of Agriculture (USDA) would require an environmental assessment that analyzes the risk of invasiveness. In addition, USDA’s Conservatio n Reserve Program (CRP) can also impose restrictions on farmers interested in growing Arundo donax on CRP land. Other statutory and regulatory

requirements are also in place that would restrict the growing patterns of these feedstocks for use in the RFS p rogram. For example, as required by EISA, any crop used to produce fuel for the RFS program would have to meet the definition of renewable biomass, and could therefore onl y be planted on existing agricultural land. Furthermore, invasive species are contr olled and regulated under various existing federal and state guidelines. The Animal and Plant Health Inspection Service (APHI S) of the United States Department of Agriculture (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) in order to ensure transparency . L isted species may not be imported into the United States, or moved interstate, without a special permit. The risk posed b y potentially invasive feedstocks may be greatly

reduced through the use of best practices. 11 Commenters referenced the voluntary best practices document developed jointly by the North Carolina Department of Agriculture and Consumer Services, the NC State University

Coo perative Extension, and the Biofuel Center of North Carolina. Man y 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. 12 For example,

11 Comment submitted by R. Timothy Columbus and Christopher G. Falcone, Steptoe & Johnson LLP on behalf of the Biofuels Center of North Carolina and the Institute for Sustainable and Rene wable Resources, dated February 13, 2012. Document ID# EPA

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- 0123 12 See http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1044768.pdf7

both USDA and the North Carolina voluntary standards recommend developing management plans that avoid sites without buffer areas and production in floodplains. The risk of potentiall y 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 an y plant used for biomass production. The purpose of the permi tting 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 an y planting of plants on the state noxious weed lis t or the federal noxious weed list. In 2009 , a compan y, White Technologies LLC, applied for and received a permit to grow 80 acres of Arundo donax under the Florida program. Under Oregon State Statutes, Chapter 570, § 570.405 the Oregon Department of Ag riculture 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 wee ds. In March of 2011, the State created a control area for Arundo donax in Morrow and Umatilla Counties. The regulation, with restrictions, allowed for up to 400 acres of this giant reed grass to be grown in Morrow and Umatilla Counties for providing bio mass for a test burn at the Portland General Electric Boardman Power Plant. Given the potential for greenhouse gas emissions associated with the potential unintended spread of Arundo donax and napier grass, EPA be lieves it is prudent to require the growth, transport, and production of renewable fuels from these two feedstocks be conducted in
a manner that is consistent with our lifecy cle analy sis. As described in Section XXX of the8

regulations, EPA is requiring that producers of fuel derived f rom Arundo donax and napier grass must submit a Risk Mitigation Plan to ensure that the production of Arundo donax or napier grass will not pose a significant risk of spread beyond the planting area of the feedstock used for production of the renewable fue l

. EPA, after consulting with the appropriate responsible governmental agencies, including the U.S. Department of Agriculture, U.S. Department of the Interior, as well as State or regional regulatory authorities with particular knowledge or authority to c ontrol potentially

invasive species, must approve the Risk Mitigation Plan prior to registration of the producer or importer and generation of RI Ns under the RFS program. Alternatel y, the producer or importer may submit information and data showing that n o conservation plan is needed because under the circumstances present Arundo donax or napier grass do not pose a significant risk of spread bey ond the planting area of the feedstock used for production of the renewable fuel

. EPA, again after consultation with the appropriate governmental agencies listed above, must make this determination prior to registration of the renewable fuel producer. Risk Mitigation Plans should incorporate approaches that are already recognized as highl y effective. One highl y effective approach to risk mitigation is Hazard Analysis Critical Control Point or HACCP

. 13 HACCP examines each phase of an invasive species pathway to identify risk reduction steps. 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 a s part of the Risk Mitigation/B iosecurit y Plan, the producer must demonstrate how the use of best management practices (BMPs), similar to the ones developed b y the Invasive Species Advisory Council 14 and USDA for miscanthus 15

13 See http://www.habitat.noaa.gov/pdf/HACCP%20Training%20Manual.pdf 14 See http://www.invasivespecies.gov/home_documents/BiofuelWhitePaper.pdf9

and Arundo donax, 16 will be used b y the fe edstock grower and how such practices will minimize the potential spread of the renewable fuel feedstock. BMPs include the development of mitigation strategies and plans to minimize escape and other risks (e.g., minimize soil disturbance) , incorporate des irable 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
ecos ys tem, develop multiple y ear eradication protocols for rapid removal of biofuel crops if they disperse bey ond desired crop rotation period, and develop plans for earl y detection and rapid response (EDRR). 17 EDRR efforts should also be incorporated into a Risk Mitigation Plan; such efforts should demonstrate that the likelihood of inv asions will be halted while still localized, 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 invasi on. Plans that implement HACCP, BMP, and EDRR risk reduction strategies are the most protective of environmental resources; therefore, Risk Mitigation Plans should include HACCP , EDRR , and BMP s . Furthermore, the Risk Mitigation Plan should include an on

- g oing monitoring and reporting component. The monitoring should cover the planting locations prior to and during feedstock cultivation, as well as extend at least two y ears after the field is no longer used for feedstock production to ensure no remnants of Arundo donax or n apier grass survive. The area that needs to be monitored must also be approved by EPA, in consultation with the appropriate responsible agencies. The area to be monitored should be sufficient to detect an y potential spread of the feedstock, both surrounding the field of production, feedstock storage sites, along

15 See http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1044768.pdf 16 INSERT CITE 17 http://www.invasivespecies.gov/global/EDRR/EDRR_documents/Guidelines%20for%20Early%20Detection%20 &%20Rapid%20Res ponse.pdf10

the transportation route and around the biofuel production facility

. The renewable fuel producer must also submit a number of documents such as a letter documenting all of the relevant federal, state, regional, and local requirements related to invasive species, a copy of all state and local growing permits received by the feedstock producer , and a communication plan for notifying federal, state, and local authorities if the feedstock is detected outsi de planted areas. EPA retains the discretion to require additional information as appropriate at the time of registration, which may be especially

appropriate when the agency considers the approval of a feedstock with risk of invasiveness.11

[REGULATIONS EXCERPT] 80.1426(f)(14) In order for facilities to satisfy the pathway

requirements using giant reed (Arundo donax) or napier grass grown, the producer or importer may only generate RINs if the feedstock is either: (A) Managed, transported, collected, and moni tored according to a Risk

Mitigation Plan approved by EPA under the registration procedures specified in 80.1450(b)(1)(viii); or, (B) EPA has determined that there is not a significant risk of spread beyond the

planting area of the feedstock used for product ion of the renewable fuel . Any determination that Arundo donax or n apier grass does not present a significant risk of spread bey ond the planting area must be based upon clear and compelling evidence, including information and supporting data. Such a determ ination must be made b y EPA as specified in 80.1450(b)(1)(viii).

* * * * * 80.1450( b)(1)(viii)(A) For a producer or importer of renewable fuel made from giant reed (Arundo donax) or n apier g rass per 80.1426(f)(14)(A): (1) A Risk Mitigation Plan (Plan) that demonstrates the production of Arundo donax or napier grass will not pose a significant risk of spread beyond the planting area of the feedstock used for production of the renewable fuel. The Plan must identif y and incorporate best management practi ces (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 Anal ys is Critical Control Point (HACCP) approach to examine each pha se of the pathway to identify

risk reduction steps. BMPs should include the development of mitigation12

strategies and plans to minimize escape and other risks (e.g., minimize soil disturbance) , incorporate desirable traits (e.g., sterility or reduced seed p roduction), develop and implement dispersal mitigation protocols prior to cultivation, develop multiple y ear eradication controls. Eradication controls should follow an approach of earl y detection and rapid response (EDRR) to unintended spread. EDRR effort s should demonstrate the likelihood of invasions will be halted while still localized, identify and employ

cooperative networks, communication forums, and consultation processes with federal, state, and local agencies. The Risk Mitigation Plan must include : (a) Monitoring and reporting for a period extending from two growing seasons prior to planting through crop production and extending bey ond crop production for a period determined to ensure that the growing cy cle of the feedstock species has been interru pted, post

- production, or two ye ars, whichever is greater. (b) Monitoring must include production areas and the larger area encompassing the production areas, extending to the distance of potential propagation of the feedstock species, or further if
neces sary . (c) Monitoring must reflect the risk of uncontrolled spread specific to the feedstock. (2) An affidavit from the producer of the feedstock , identifying all federal, state, regional, and local requirements related to invasive species that are appli cable for the feedstock. (3) A cop y of all state and local growing permits received b y the producer of the feedstock

. (4) A communication plan for notifying federal, state, regional, and local authorities if the feedstock is detected outside planted area. (B) For a producer or importer of renewable fuel made from giant reed (Arundo donax) or N apier grass per 80.1426(f)(1 4)(B): Clear and compelling evidence, including information and supporting data, to support a determination by EPA that Arundo donax or napier grass does not present a significant risk of spread beyond the planting area of the feedstock used for production13

of the renewable fuel . Such a demonstration should include consideration of the elements of a Risk Mitigation Plan set forth in 80.1450(b)(1)(viii)(A), full y disclose the potential invasiveness of the feedstock, and explain why a Risk Mitigation Plan is n ot needed to make the required determination

. * * * * * 80.1451(b)(T) Producers or importers of renewable fuel made from Arundo donax or napier grass per 80.1426(f)(14), shall report the average and total size of land planted with each of these crops, lan d set aside to control the unwanted spread of these crops, prior use of the land, and a description and explanation of an y change in land from the previous ye ar.
80.1450(b)(U) An y additional information the Administrator may require.

* * * * * 80.1454(b ), (c)