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[PREAMBLE 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 types 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 by 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 ecosystem.” 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 invasion.” Commenters stated that EPA should not approve the proposed 

feedstocks until EPA has conducted an invasive species analysis, as required under Executive 

Order (EO) 13112.

EPA also received comments stating that Arundo donax is not “invasive” as defined by 

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 13112,3signed 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-HQ-OAR-2011-0542-0118. 

2Comment 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. 

3

http://www.gpo.gov/fdsys/pkg/FR-1999-02-08/pdf/99-3184.pdf
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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 costeffective and environmentally sound manner; (iii) monitor invasive species populations 

accurately and reliably; (iv) provide for restoration of native species and habitat 

conditions in ecosystems that have been invaded; (v) conduct research on invasive 

species and develop technologies to prevent introduction and provide for environmentally

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 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.

 Federal agencies shall pursue the duties set forth in this section in consultation with the 

Invasive Species Council, consistent with the Invasive Species Management Plan and in 

cooperation with stakeholders, as appropriate, and, as approved by 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 by 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 determining whether certain biofuels meet the statutory 

requirements for renewable fuel, which is defined in terms of a specified percent reduction in a 

lifecycle emissions of GHGs compared to the lifecycle emissions for a baseline gasoline or 

diesel. The focus of this rulemaking is the lifecycle analysis for the production and use of 

biofuels, with cultivation of the crops used as feedstock as a critical component of the GHG 

lifecycle analysis of the biofuel. 

None of the feedstocks included in this rulemaking are currently on the Federal Noxious 

Weed List.

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 However, this list is not exhaustive and is generally limited to species that are not 

currently in the U.S. or are incipient to the U.S. Arundo donax is listed as a noxious or invasive 

species by Texas,6 Nevada,7and California,8and 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 lifecycle analysis of the biofuel assumes that if these feedstocks 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 analysis EPA does not account 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_NoxWeedList.htm. Accessed on May 23, 2012

8

Seehttp://pi.cdfa.ca.gov/pqm/manual/pdf/107.pdf. Accessed on March 30, 2012. 

9

See http://www.gaeppc.org/list.cfm, accessed on May 23, 2012; see http://www.se-eppc.org/pubs/scbooklet.pdf, 

accessed on March 30, 2012; see http://www.dcr.virginia.gov/natural_heritage/documents/invlist.pdf, accessed on 

March 30, 2012; see http://www.tneppc.org/invasive_plants. Accessed on March 30, 2012. 

10 IFAS Assessment of Non-native Plants in Florida’s Natural Areas, 2009. 
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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 ready at this time to make a determination about 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 demonstrate that the production of Arundo donax and napier grass as a feedstock 

for a renewable fuel is 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 significant risk of 

spread beyond 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 because under the circumstances present Arundo 

donax or napier grass do not pose a significant risk of spread beyond the planting area of the 

feedstock used for production of the renewable fuel. Registration 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. RINs may not be generated for that facility
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using that feedstock pathway absent such approval or determination. These RRR requirements 

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 lifecycle 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). The definitions of renewable biomass 

and renewable fuel do not refer to the wide variety 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 years where Congress does not specify

specific volumes. Section 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. 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 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 Arundo 
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donax or napier grass. For example, if producers were to apply 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 

Conservation 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 program. 

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 only be planted on 

existing agricultural 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 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. Listed species may not be imported into the United 

States, or moved interstate, without a special permit. 

The risk posed by 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 Cooperative Extension, and the Biofuel 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.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 Renewable Resources, dated February 

13, 2012. Document ID# EPA-HQ-OAR-2011-0542-0123

12 See http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1044768.pdf
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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 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 Arundo donax 

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 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 biomass 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 believes 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 lifecycle analysis. As described in Section XXX of the 
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regulations, EPA is requiring that producers of fuel derived from 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 fuel. 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 control potentially invasive species, must approve the Risk Mitigation Plan prior to 

registration of the producer or importer and generation of RINs under the RFS program. 

Alternately, the producer or importer may submit information and data showing that no 

conservation plan is needed because under the circumstances present Arundo donax or napier 

grass do not pose a significant risk of spread beyond 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 

highly effective. One highly effective approach to risk mitigation is Hazard Analysis Critical 

Control Point or HACCP.

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 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 as part of the Risk Mitigation/Biosecurity 

Plan, the producer must demonstrate how the use of best management practices (BMPs), similar 

to the ones developed by the Invasive Species Advisory Council14 and USDA for miscanthus15

 

13 See http://www.habitat.noaa.gov/pdf/HACCP%20Training%20Manual.pdf 

14 See http://www.invasivespecies.gov/home_documents/BiofuelWhitePaper.pdf 
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and Arundo donax,16 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 of 

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

disturbance), incorporate desirable traits (e.g., sterility or reduced seed production), develop and 

put in place dispersal mitigation protocols prior to cultivation of biofuel plants in each region or 

ecosystem, develop multiple year eradication protocols for rapid removal of biofuel crops if they

disperse beyond desired crop rotation period, and develop plans for early detection and rapid 

response (EDRR).17 EDRR efforts should also be incorporated into a Risk Mitigation Plan; such 

efforts should demonstrate that the likelihood of invasions 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 invasion. 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 BMPs.

Furthermore, the Risk Mitigation Plan should include an on-going monitoring and 

reporting component. The monitoring should cover the planting locations prior to and during 

feedstock cultivation, as well as extend at least two years after the field is no longer used for 

feedstock production to ensure no remnants of Arundo donax or napier 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 any 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

17http://www.invasivespecies.gov/global/EDRR/EDRR_documents/Guidelines%20for%20Early%20Detection%20

&%20Rapid%20Response.pdf
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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 outside 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.
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[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 monitored 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 production of the renewable fuel. Any

determination that Arundo donax or napier grass does not present a 

significant risk of spread beyond the planting area must be based upon clear 

and compelling evidence, including information and supporting data. Such a 

determination must be made by 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 napier grass 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 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 risk reduction steps. BMPs should include the development of mitigation 
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strategies and plans to minimize escape and other risks (e.g., minimize soil disturbance), 

incorporate desirable traits (e.g., sterility or reduced seed production), develop and implement 

dispersal mitigation protocols prior to cultivation, develop multiple year eradication controls. 

Eradication controls should follow an approach of early detection and rapid response (EDRR) to 

unintended spread. EDRR efforts should demonstrate the likelihood 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 beyond crop production for a period determined to ensure 

that the growing cycle of the feedstock species has been interrupted, post-production, or two 

years, 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 

necessary. 

(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 applicable for the feedstock. 

(3) A copy of all state and local growing permits received by 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 

Napier grass per 80.1426(f)(14)(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 production
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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), fully disclose the potential invasiveness 

of the feedstock, and explain why a Risk Mitigation Plan is not 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, land set aside to control the unwanted spread of these crops, prior use of the land, and a 

description and explanation of any change in land from the previous year. 

80.1450(b)(U) Any additional information the Administrator may require. 

* * * * *

80.1454(b), (c)