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purposes of judicial review nor does it PART 52—APPROVAL AND (w) * * * extend the time within which a petition PROMULGATION OF (2) Indiana’s 2006 NOX, primary for judicial review may be filed, and IMPLEMENTATION PLANS PM2.5, and SO2 emissions inventories shall not postpone the effectiveness of and 2007/2008 VOC and ammonia ■ such rule or action. These actions may 1. The authority citation for part 52 emission inventories, as submitted on not be challenged later in proceedings to continues to read as follows: October 20, 2009 and supplemented on enforce their requirements. (See section Authority: 42 U.S.C. 7401 et seq. May 31, 2011 and March 18, 2013, 307(b)(2).) ■ 2. Section 52.776 is amended by satisfy the emission inventory List of Subjects adding paragraphs (v)(2) and (w)(2) to requirements of section 172(c)(3) of the read as follows: Clean Air Act for the Indianapolis area. 40 CFR Part 52 * * * * * § 52.776 Control strategy: Particulate Environmental protection, Air matter. PART 81—DESIGNATION OF AREAS pollution control, Incorporation by * * * * * FOR AIR QUALITY PLANNING reference, Intergovernmental relations, (v) * * * PURPOSES Particulate matter. (2) The Indianapolis area (Hamilton, 40 CFR Part 81 Hendricks, Johnson, Marion and Morgan ■ 3. The authority citation for part 81 Counties), as submitted on October 20, continues to read as follows: Environmental protection, Air 2009, and supplemented on May 31, Authority: 42 U.S.C. 7401 et seq. pollution control, National parks, 2011, January 17, 2013, and March 18, Wilderness areas. 2013. The maintenance plan establishes ■ 4. Section 81.315 is amended by Dated: June 26, 2013. 2015 motor vehicle emissions budgets revising the entry for Indianapolis, IN in for the Indianapolis area of 853.76 tpy Susan Hedman, the table entitled ‘‘Indiana PM2.5 for primary PM2.5 and 25,314.49 tpy for Regional Administrator, Region 5. (Annual NAAQS)’’ to read as follows: NOX and 2025 motor vehicle emissions 40 CFR Parts 52 and 81 are amended budgets of 460.18 tpy for primary PM2.5 § 81.315 Indiana. as follows: and 13,368.60 tpy for NOX. * * * * *

INDIANA PM2.5 (ANNUAL NAAQS)

Designation a Designated area Date 1 Type

******* Indianapolis, IN: Hamilton County ...... 7/11/2013 Attainment. Hendricks County ...... 7/11/2013 Attainment. Johnson County ...... 7/11/2013 Attainment. Marion County ...... 7/11/2013 Attainment. Morgan County ...... 7/11/2013 Attainment.

******* a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is 90 days after January 5, 2005, unless otherwise noted.

* * * * * ENVIRONMENTAL PROTECTION fuel from giant reed (Arundo donax) [FR Doc. 2013–16478 Filed 7–10–13; 8:45 am] AGENCY and napier grass (Pennisetum BILLING CODE 6560–50–P purpureum) as feedstocks. These 40 CFR Part 80 pathways are for cellulosic biofuel, for [EPA–HQ–OAR–2011–0542; FRL–9822–7] purposes of the Renewable Fuel Standard Program (RFS), under Clean RIN 2060–AR85 Air Act (CAA) as amended by the Energy Independence and Security Act Regulation of Fuels and Fuel of 2007 (EISA). EPA has determined that Additives: Additional Qualifying renewable fuel made from napier grass Renewable Fuel Pathways Under the Renewable Fuel Standard Program; and giant reed meet the greenhouse gas Final Rule Approving Renewable Fuel (GHG) reduction requirements for Pathways for Giant Reed (Arundo cellulosic biofuel under the Donax) and Napier Grass (Pennisetum requirements of the RFS program. In Purpureum) response to comments on the proposal concerning the potential for these crops AGENCY: Environmental Protection to behave as invasive species, EPA is Agency (EPA). adopting additional registration, ACTION: Final rule. recordkeeping, and reporting requirements that were developed to SUMMARY: This final rule approves address the potential for GHG emissions pathways for production of renewable related to these concerns. Approval of

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these pathways combined with the DATES: This rule is effective on July 11, SUPPLEMENTARY INFORMATION: related provisions will create additional 2013. Does this action apply to me? opportunities for regulated parties to FOR FURTHER INFORMATION CONTACT: comply with the advanced and Entities potentially affected by this Edmund Coe, Office of Transportation cellulosic renewable fuel requirements action are those involved with the and Air Quality (MC6401A), of the RFS program, while ensuring that production, distribution, and sale of Environmental Protection Agency, 1200 these feedstocks do not pose a transportation fuels, including gasoline Pennsylvania Ave. NW., Washington, significant likelihood of spread into and diesel fuel or renewable fuels such DC 20460; telephone number: (202) areas outside the intended planting area. as ethanol and biodiesel. Regulated 564–8994; fax number: (202) 564–1686; categories and entities affected by this email address: [email protected]. action include:

1 2 Examples of potentially Category NAICS Codes SIC Codes regulated entities

Industry ...... 324110 2911 Petroleum Refineries. Industry ...... 325193 2869 Ethyl alcohol manufacturing. Industry ...... 325199 2869 Other basic organic chemical manufacturing. Industry ...... 424690 5169 Chemical and allied products merchant wholesalers. Industry ...... 424710 5171 Petroleum bulk stations and terminals. Industry ...... 424720 5172 Petroleum and petroleum products merchant wholesalers. Industry ...... 454319 5989 Other fuel dealers. 1 North American Industry Classification System (NAICS). 2 Standard Industrial Classification (SIC) system code.

This table is not intended to be D. Unfunded Mandates Reform Act feedstock will spread to areas outside exhaustive, but rather provides a guide E. Executive Order 13132 (Federalism) the intended planting area. Such for readers regarding entities likely to be F. Executive Order 13175 (Consultation unintended growth could result in regulated by this action. This table lists and Coordination With Indian Tribal additional GHG emissions from Governments) the types of entities that EPA is now G. Executive Order 13045: Protection of activities needed to control and remove aware could be potentially regulated by Children From Environmental Health the invasive plants, which have not this action. Other types of entities not Risks and Safety Risks been factored into our lifecycle analysis. listed in the table could also be H. Executive Order 13211: Actions EPA is issuing this final rule based on regulated. To determine whether your Concerning Regulations That its evaluation of the lifecycle entity is regulated by this action, you Significantly Affect Energy Supply, greenhouse gas emissions of this should carefully examine the Distribution, or Use pathway for production of renewable applicability criteria of Part 80, subparts I. National Technology Transfer and fuel from these feedstocks. The Advancement Act D, E and F of title 40 of the Code of approach for establishing a renewable J. Executive Order 12898: Federal Actions fuel pathway is based on the Federal Regulations. If you have any To Address Environmental Justice in question regarding applicability of this Minority Populations and Low-Income requirements related to greenhouse gas action to a particular entity, consult the Populations reductions that are part of the RFS person in the preceding FOR FURTHER K. Executive Order 13112: Invasive Species program, under Clean Air Act (‘‘CAA’’) INFORMATION CONTACT section above. L. Congressional Review Act Section 211(o) as amended by the V. Statutory Provisions and Legal Authority Energy Independence and Security Act Outline of This Preamble of 2007 (‘‘EISA’’). This rulemaking I. Executive Summary I. Executive Summary modifies the RFS regulations published A. Purpose of the Regulatory Action A. Purpose of the Regulatory Action at 40 CFR 80.1400 et seq. The RFS B. Summary of the Major Provisions of program regulations specify the types of This Regulatory Action In this final rule, EPA is approving a fuels eligible to participate in the RFS II. Additional Qualifying Renewable Fuel pathway for production of renewable renewable fuel program and the Pathways Under the Renewable Fuel fuel from giant reed (Arundo donax) procedures by which renewable fuel Standard (RFS) Program, Using Giant and napier grass (Pennisetum producers and importers may generate Reed and Napier Grass purpureum) as feedstock for purposes of Renewable Identification Numbers A. Feedstock Production and Distribution the RFS program. EPA has determined (‘‘RINs’’) for the qualifying renewable B. Fuel Production, Distribution, and Use that renewable fuel made from napier C. Summary fuels they produce through approved III. Additional Provisions Addressing grass and giant reed meet the lifecycle fuel pathways. See 75 FR 14670 (March Invasiveness Concerns for Giant Reed greenhouse gas (GHG) reduction 26, 2010); 75 FR 26026 (May 10, 2010); and Napier Grass requirements for cellulosic biofuel 75 FR 37733 (June 30, 2010); 75 FR A. Discussion of Comments on Invasive under the requirements of the RFS 59622 (September 28, 2010); 75 FR Species program. EPA is also adopting 76790 (December 9, 2010); 75 FR 79964 B. Registration, Reporting, and Record additional registration, recordkeeping, (December 21, 2010); 77 FR 1320 Keeping Requirements to Address and reporting requirements to minimize (January 9, 2012); 77 FR 74592 Potential Invasiveness the potential spread outside of the (December 17, 2012); and 78 FR 14190 IV. Statutory and Executive Order Reviews intended planting areas of giant reed or A. Executive Order 12866: Regulatory (March 5, 2013). Planning and Review and Executive napier grass that was planted for the Approving the new fuel pathways Order 13563: Improving Regulation and purpose of producing renewable fuels according to the provisions of this rule Regulatory Review under the RFS program. These will provide biofuel producers B. Paperwork Reduction Act additional requirements are necessary to opportunities to increase the volume of C. Regulatory Flexibility Act minimize the potential that the advanced, low-GHG cellulosic biofuels

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under the RFS program. EPA’s period was not issued, since the feedstocks in Table 1 to § 80.1426 as comprehensive lifecycle analyses in the simultaneous publication of the approved pathways for cellulosic January 5, 2012 proposal show proposed rule provided an adequate biofuel pathways. significant lifecycle GHG emission notice and comment process. As described in detail in the following reductions from fuels produced from For this rulemaking, EPA considered sections of this preamble, because of the giant reed and napier grass, as compared the lifecycle GHG impacts of two types similarity of these feedstocks to to the baseline (petroleum-based) of high-yielding perennial grasses switchgrass and miscanthus, EPA gasoline or diesel fuel that they replace. similar in cellulosic composition to believes that new agricultural sector However, the lifecycle analyses assume Panicum virgatum (switchgrass) and modeling is not needed to analyze them. no significant indirect greenhouse gas comparable in status as an emerging We have instead relied upon the emissions associated with actions to energy crop. The grasses considered in switchgrass analysis to assess the remove or remediate the unintended this rulemaking are giant reed (Arundo relative GHG impacts of biofuel spread of these feedstocks outside of the donax), and napier grass (Pennisetum produced from giant reed and napier intended planting area. This rule purpureum), also known as elephant grass. As with the switchgrass analysis, includes provisions designed to ensure grass. In the March 2010 RFS rule, EPA we have attributed all land use impacts that this assumption is realized, and analyzed the lifecycle GHG impacts of and resource inputs from use of these were developed in response to producing and using cellulosic ethanol feedstocks to the portion of the fuel comments raised during the public and cellulosic Fischer-Tropsch diesel produced that is derived from the comment period. from switchgrass. The midpoint of the cellulosic components of the feedstocks. range of switchgrass results showed a Based on this analysis and currently B. Summary of the Major Provisions of available information, we conclude that this Regulatory Action 110% GHG reduction (range of 102% to 117%) for cellulosic ethanol biofuel (ethanol, cellulosic diesel, jet This rule approves new pathways for (biochemical process), a 72% (range of fuel, heating oil and naphtha) produced production of cellulosic biofuel from 64% to 79%) reduction for cellulosic from the cellulosic biomass of giant reed giant reed and napier grass as ethanol (thermochemical process), and a or napier grass has similar lifecycle feedstocks. The rule also includes 71% (range of 62% to 77%) reduction GHG impacts to switchgrass biofuel and several provisions addressing for cellulosic diesel (F–T process) meets the 60% GHG reduction threshold invasiveness concerns regarding giant compared to the petroleum baseline. In required for cellulosic biofuel. reed or napier grass when it is grown as the March 2010 RFS final rule, we A. Feedstock Production and a feedstock for production of renewable indicated that some feedstock sources Distribution fuel.1 These provisions require either a can be determined to be similar enough For the purposes of this rulemaking, demonstration by the renewable fuel to those modeled that the modeled Giant reed refers to the perennial grass producer that the giant reed or napier results could reasonably be extended to Arundo donax of the Poaceae family. grass will not pose a significant these similar feedstock types. For Giant reed thrives in subtropical and likelihood of spread beyond its intended instance, information on miscanthus warm-temperate areas and is grown planting area, or approval by EPA of a indicated that this perennial grass will throughout Asia, southern Europe, Risk Mitigation Plan developed by the yield more feedstock per acre than the Africa, the Middle East, and warmer fuel producer that demonstrates the modeled switchgrass feedstock without U.S. states for multiple uses such as giant reed or napier grass will not pose additional inputs with GHG paper and pulp, musical instruments, a significant likelihood of spread implications (such as fertilizer).2 rayon, particle boards, erosion control, beyond its intended the planting area. Therefore in the final rule EPA and ornamental purposes.34 Based in EPA’s use of the term ‘‘no significant concluded that since biofuel made from part on discussions with industry, EPA likelihood of spread beyond the the cellulosic biomass in switchgrass anticipates continued development of planting area’’ means that it is highly was found to satisfy the 60% GHG giant reed as an energy crop particularly unlikely there will be such spread. EPA reduction threshold for cellulosic in the Mediterranean region and warmer is also including related registration, biofuel, biofuel produced from the U.S. states. reporting, and recording keeping cellulosic biomass in miscanthus would requirements. Napier grass is a tall bunch-type grass also comply. In the final rule we that has traditionally been grown as a included cellulosic biomass from high-yielding forage crop across the wet switchgrass and miscanthus as eligible II. Additional Qualifying Renewable tropics. There is a considerable body of feedstocks for the cellulosic biofuel agronomic research on the production of Fuel Pathways Under the Renewable pathways included in Table 1 to Fuel Standard (RFS) Program, Using napier grass as a forage crop. More § 80.1426. recently, researchers have investigated Giant Reed and Napier Grass We did not include other perennial ways to maximize traits desirable in EPA’s analysis of renewable fuel grasses such as giant reed or napier bioenergy crops. Practices have been pathways using giant reed and napier grass as feedstocks for the cellulosic developed by USDA and other grass as feedstocks was originally biofuel pathways in Table 1 at that time, researchers to lower fertilization rates published in the Federal Register on since we did not have sufficient time to and increase biomass production. Based January 5, 2012 as a direct final rule, adequately consider them. Based in part in part on discussions with industry, with a parallel publication of a on additional information received EPA anticipates continued development proposed rule. Because relevant adverse through the petition process for EPA of napier grass as an energy crop comments were received, EPA withdrew approval of giant reed and napier grass the direct final rule on March 5, 2012 pathways, EPA has evaluated these 3 See http://www.fs.fed.us/database/feis/plants/ (77 FR 13009). A second comment feedstocks and is now including these graminoid/arudon/all.html. 4 See Lewandowski, I., Scurlock, J.M.O., Lindvall, 1 For purposes of this proposal, the term ‘‘giant 2 See the Final Regulatory Impact Analysis in E., Christou, M. (2003). The development and reed’’ refers to the species Arundo donax and support of the March 2010 RFS Final Rule, current status of perennial rhizomatous grasses as ‘‘napier grass’’ refers to the species Pennisetum available at http://www.epa.gov/otaq/ energy crops in the U.S. and Europe. Biomass and purpureum. renewablefuels/420r10006.pdf. Bioenergy 25, 335–361.

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particularly in Gulf Coast Region of the against the napier grass, and giant reed would likely have less of an United States (more specifically the pathways. international indirect impact than growing region includes Florida and Furthermore, EPA’s analysis of switchgrass because some of those southern portions of Texas, Louisiana, switchgrass for the March 2010 RFS rule commodities are not as widely traded as Georgia, Alabama and Mississippi).5 (75 FR 14791) assumed a 2% annual soybeans or wheat. Given that napier increase in yield that would result in an grass will likely displace the least 1. Crop Yields average national yield of 6.6 dry tons productive land first, EPA concludes per acre in 2022. EPA anticipates a that the land use GHG impact for napier For the purposes of analyzing the similar yield improvement for giant reed grass per gallon should be no greater GHG emissions from giant reed and and napier grass due to their similarity and likely less than estimated for napier grass production, EPA examined as perennial grasses and their switchgrass. Given that giant reed is in crop yields and production inputs in comparable status as energy crops in early stages of development as an energy relation to switchgrass to assess the their early stages of development. Given crop, there is limited information on relative GHG impacts. Current national this, our analysis assumes an average where it will be grown and what crops yields for switchgrass are approximately giant reed yield of approximately 18 dry it will displace. We expect giant reed 4.5 to 5 dry tons per acre. Giant reed tons per acre by 2022 and an average will displace the least productive land field trials conducted in Alabama over napier grass yield of approximately 20 first and would likely have a similar or a 9-year period showed an average yield dry tons per acre by 2022.10 The ethanol smaller indirect impact associated with of 15 dry tons per acre with no nitrogen yield for all of the grasses is crop displacement than what we 6 fertilizer applied after the first year. approximately the same so the higher assumed for switchgrass. Fertilized field trials have shown yields crop yields for napier grass and giant Considering the total land potentially around 13 to 28 dry tons per acre in reed result directly in greater ethanol impacted by all the new feedstocks Spain, and 12 dry tons per acre in Italy production compared to switchgrass per included in this rulemaking would not (based on annual yields of 3, 14, 17, 16, acre of production. impact these conclusions. In the and 12).7 High yields have been Based on these yield assumptions, in switchgrass ethanol scenario done for demonstrated with unimproved giant areas with suitable growing conditions, the March 2010 RFS final rule, total reed populations, and therefore there is giant reed would require less than 40% cropland acres increases by 4.2 million potential for increased biomass of the land area required by switchgrass acres, including an increase of 12.5 productivity through improved growing to produce the same amount of biomass million acres of switchgrass, a decrease methods and breeding efforts.8 Napier and napier grass would require of 4.3 million acres of soybeans, a 1.4 grass field trials have produced dry approximately 33% of the land area million acre decrease of wheat acres, a biomass yields exceeding 20 tons per required by switchgrass to produce the decrease of 1 million acres of hay, as acre per year in north-central Florida. same amount of biomass due to their well as decreases in a variety of other Using currently available technology, higher yields. Even without yield crops. Given the higher yields of the average yields for full-season napier growth assumptions, their currently energy grasses considered here grass should range from 14 to 18 tons higher crop yield rates means the land compared to switchgrass, there would per acre with future improvements use required for these crops would be be ample land available for production expected. Yield depends greatly on the lower than for switchgrass. Therefore without having any anticipated adverse type of cultivar and the amount and less crop area would be converted and impacts beyond what was considered distribution of rainfall and fertilization displaced resulting in smaller land-use for switchgrass production. This rates. There is potential for increased change GHG impacts than that assumed analysis took into account the economic biomass productivity through improved for switchgrass to produce the same conditions such as input costs and growing methods and breeding efforts.9 amount of fuel. Furthermore, we believe commodity prices when evaluating the In general, the yields for both of the napier grass will have a similar impact GHG and land use change impacts of energy grasses considered here will on international markets as assumed for switchgrass. One commenter stated that by have higher yields than switchgrass, so switchgrass. Like switchgrass, napier assuming no land use change for giant from a crop yield perspective, the grass is not expected to be traded reed and napier grass, the Agency may switchgrass analysis would be a internationally and its impacts on other have underestimated the increase in conservative estimate when comparing crops are expected to be limited. GHG emissions that could result from Increased giant reed demand in the U.S. breaking new land. According to the 5 for biofuels is not expected to impact For a map depicting the northern limit for commenter, EPA assumed that these sustained napiergrass production in the United existing markets for giant reed, which feedstocks will be grown on the least States see Figure 1 in Woodard, K., R. and are relatively small niche markets (e.g., productive land without citing any Sollenberger, L, E. 2008. Production of Biofuel musical instrument reeds). Crops in Florida: Elephantgrass. Institute of Food specific models or studies. and Agricultural Sciences, University of Florida. SS 2. Land Use The commenter appears to have AGR 297. misinterpreted EPA’s analysis. EPA did 6 Huang, P., Bransby, D., and Sladden, S. (2010). In EPA’s March 2010 RFS final rule Exceptionally high yields and soil carbon analysis, switchgrass plantings not assume these crops would be grown sequestration recorded for giant reed in Alabama. displaced primarily soybeans and on fallow acres, nor did EPA assume Poster session presented at: ASA, CSSA, and SSSA that switchgrass would only be wheat, and to a lesser extent hay, rice, 2010 International Annual Meetings, Green produced on the least productive lands. Revolution 2.0; 2010 Oct 31–Nov 4; Long Beach, sorghum, and cotton. Napier grass, with EPA assumed these crops would be CA. production focused in the southern 7 grown on acres similar to switchgrass, Mantineo, M., D’Agnosta, G.M., Copani, V., United States, is likely to be grown on Patane`, C., and Cosentino, S.L. (2009). Biomass and therefore applied the land use land once used for pasture, rice, yield and energy balance of three perennial crops change impacts of switchgrass analyzed for energy use in the semi-arid Mediterranean commercial sod, cotton or alfalfa, which environment. Field Crops Research 114, 204–213. in the March 2010 RFS final rule. In that 8 Lewandowski et al. 2003. 10 These yields assume no significant adverse rule, EPA provided detailed information 9 Based on discussions with industry and USDA climate impacts on world agricultural yields over on the types of crops (e.g., wheat) that and Woodard and Sollenberger (2008). the analytical timeframe. would be displaced by switchgrass. This

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analysis took into account the economic Available data gathered by EPA rates will vary depending on the timing conditions such as input costs and suggest that giant reed may require on and amount of rainfall, but for the commodity prices when evaluating the average less nitrogen and insecticide purpose of estimating GHG impacts of GHG and land use change impacts of than switchgrass, but more electricity use for irrigation, we switchgrass.11 phosphorous, potassium, herbicide, assumed a rate similar to what we 3. Crop Inputs and Feedstock Transport diesel, and electricity per unit of assumed for other irrigated crops in the biomass. Napier grass may require Southwest, South Central, and EPA also assessed the GHG impacts similar amounts of nitrogen fertilizer Southeast as shown in Table 1. associated with planting, harvesting, application as switchgrass, less and transporting giant reed and napier Applying the GHG emission factors phosphorous, potassium and insecticide grass feedstocks in comparison to used in the March 2010 RFS final rule, than switchgrass, but more herbicide, switchgrass. Table 1 shows the assumed giant reed production results in slightly lime, diesel and electricity per unit of 2022 commercial-scale production lower GHG emissions relative to inputs for switchgrass (used in the biomass. See Table 1 below. switchgrass production (a decrease of March 2010 RFS final rule analysis), This assessment assumes production approximately 2 kg CO2eq/mmbtu). average giant reed and napier grass of these two new feedstocks uses Napier grass production results in production inputs (USDA projections electricity for irrigation given that slightly higher GHG emissions relative and industry data) and the associated growers will likely irrigate when to switchgrass production (an increase GHG emissions. possible to improve yields. Irrigation of approximately 6 kg CO2eq/mmbtu). TABLE 1—PRODUCTION INPUTS AND GHG EMISSIONS FOR SWITCHGRASS, GIANT REED, AND NAPIER GRASS (BIOCHEMICAL ETHANOL), 2022

Switchgrass Giant Reed Napier grass Emission Inputs Inputs Inputs factors (per dry ton Emissions (per dry ton Emissions (per dry ton Emissions of biomass) (per mmBtu fuel) of biomass) (per mmBtu fuel) of biomass) (per mmBtu fuel)

Nitrogen Fer- 3,29 kgCO2e/ton 15.2 lbs ...... 3.6 kgCO2e ...... 5 lbs ...... 1 kgCO2e ...... 10 lbs ...... 2.4 kgCO2e. tilizer. of nitrogen. N2O ...... N/A ...... N/A ...... 7.6 kgCO2e ...... N/A ...... 4.8 kgCO2e ...... N/A ...... 7.6 kgCO2e. Phosphorus Fer- 1,12 kgCO2e/ton 6.1 lbs ...... 0.5 kgCO2e ...... 7.4 lbs ...... 0.6 kgCO2e ...... 1.1 lbs ...... 0.1 kgCO2e. tilizer. of phosphate. Potassium Fer- 743 kgCO2e/ton 6.1 lbs ...... 0.3 kgCO2e ...... 7.4 lbs ...... 0.4 kgCO2e ...... 4.0 lbs ...... 0.2 kgCO2e.. tilizer. of potassium. Herbicide ...... 23,45 kgCO2e/ 0.002 lbs ...... 0.003 kgCO2e ...... 0.02 lbs ...... 0.03 kgCO2e ...... 0.4 lbs ...... 0.6 kgCO2e. tons of herbi- cide. Insecticide (aver- 27,22 kgCO2e/ 0.025 lbs ...... 0.04 kgCO2e ...... 0 lbs ...... 0 kgCO2e ...... 0 lbs ...... 0 kgCO2e. age across re- tons of pes- gions). ticide. Lime ...... 408 kgCO2e/ton 0 lbs ...... 0 kgCO2e ...... 0 lbs ...... 0 kgCO2e ...... 100 lbs ...... 2.9 kgCO2e. of lime. Diesel ...... 97 kgCO2e/ 0.4 gal ...... 0.8 kgCO2e ...... 1.4 gal ...... 2.5 kgCO2e ...... 1.3 gal ...... 2.2 kgCO2e. mmBtu diesel. Electricity (irriga- 220 kgCO2e/ 0 kWh ...... 0 kgCO2e ...... 10 kWh ...... 1 kgCO2e ...... 25 kWh ...... 2.7 kgCO2e. tion). mmBtu. Total Emis- ...... 13 kgCO2e/mmBtu ...... 11 kgCO2e/mmBtu ...... 19 kgCO2e/ sions. mmBtu. Assumes 2022 switchgrass yield of 6.59 dry tons/acre and 92.3 gal ethanol/dry ton, 2022 giant reed yield of 18 dry tons/acre and 92.3 gal ethanol/dry ton, and 2022 napier grass yield of 20 dry tons/acre and 92.3 gal ethanol/dry ton. More detail on calculations and assumptions is included in materials to the docket.

GHG emissions associated with B. Fuel Production, Distribution, and final rule (biochemical ethanol, distributing giant reed and napier grass Use thermochemical ethanol, and Fischer- feedstocks are expected to be similar to Giant reed and napier grass are Tropsch (F–T) diesel) 12 to giant reed EPA’s estimates for switchgrass suitable for the same conversion and napier grass. We assumed the GHG feedstock because they are all processes as other cellulosic feedstocks, emissions associated with producing herbaceous agricultural crops requiring such as switchgrass and corn stover. biofuels from giant reed and napier similar transport, loading, unloading, Currently available information on giant grass are similar to what we estimated and storage regimes. Our analysis reed and napier grass composition for switchgrass and other cellulosic therefore assumes the same GHG impact shows that their hemicellulose, feedstocks. EPA also assumes that the for feedstock distribution as we cellulose, and lignin content are distribution and use of biofuel made assumed for switchgrass, although comparable to other crops that qualify from giant reed and napier grass will not distributing giant reed and napier grass under the RFS regulations as feedstocks differ significantly from similar biofuel feedstocks could be less GHG intensive for the production of cellulosic biofuels. produced from other cellulosic sources. because higher yields could translate to Based on this similar composition as As was done for the switchgrass case, shorter overall hauling distances to well as conversion yield data provided this analysis assumes energy grasses storage or biofuel production facilities by industry, we applied the same grown in the United States for per gallon or Btu of final fuel produced. production processes that were modeled production purposes. If crops were for switchgrass in the March 2010 RFS grown internationally, used for biofuel

11 See Final Regulatory Impact Analysis Chapter 12 The F–T diesel process modeled applies to 2, February 2010. cellulosic diesel, jet fuel, heating oil, and naphtha.

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production, and the fuel was shipped to for sale and use in the United States will III. Additional Provisions Addressing the U.S., shipping the finished fuel to most likely come from domestically Invasiveness Concerns for Giant Reed the U.S. could increase transport produced feedstock, we also intend for and Napier Grass emissions. However, based on analysis the approved pathways to cover As described the previous section, the of the increased transport emissions renewable fuels from giant reed and lifecycle GHG assessment of the associated with sugarcane ethanol napier grass grown in other countries. pathways using giant reed and napier distribution to the U.S. considered for We do not expect incidental amounts of grass assumed that these crops would the 2010 final rule, this would at most biofuels from feedstocks produced in not expand beyond their intended add 1–2% to the overall lifecycle GHG other nations to impact our assessment planting area and therefore did not impacts of the energy grasses. that the average GHG emissions assume any significant GHG emissions C. Summary reductions will meet the threshold for resulting from actions to remediate or remove this unintended spread. In Based on our comparison of qualifying as a cellulosic biofuel response to the January 5, 2012 switchgrass and the two feedstocks pathway. Moreover, those countries proposal, EPA received comments considered here, EPA believes that most likely to be exporting giant reed, raising concerns about the potential for cellulosic biofuel produced from the or napier grass or biofuels produced the spread of these species beyond their cellulose, hemicellulose and lignin from these feedstocks are likely to be portions of giant reed and napier grass major producers which typically use intended growing area. After has similar or better lifecycle GHG similar cultivars and farming considering these comments, EPA has impacts than biofuel produced from the techniques).13 Therefore, GHG decided to adopt various changes to the cellulosic biomass from switchgrass. emissions from producing biofuels with RFS regulations to address the potential Our analysis suggests that the two giant reed or napier grass grown in other for giant reed or napier grass to behave feedstocks considered have GHG countries should be similar to the GHG as invasive species beyond their impacts associated with growing and emissions we estimated for U.S. giant intended planting area. The supplemental requirements included in harvesting the feedstock that are similar reed or napier grass, though they could this final rule support the lifecycle to switchgrass. Emissions from growing be slightly higher or lower. For example, assessment discussed in section II above and harvesting giant reed are the renewable biomass provisions under and the determination that biofuels approximately 2 kg CO2eq/mmBtu the Energy Independence and Security lower than switchgrass, and emissions produced with these feedstocks will Act would prohibit direct conversion of meet the criteria of advanced and from growing and harvesting napier previously unfarmed land in other grass are approximately 6 kg CO2eq/ cellulosic biofuels under the RFS countries into cropland for energy grass- regulations. mmBtu higher than switchgrass. These based renewable fuel production. are small changes in the overall Furthermore, any energy grass A. Discussion of Comments on Invasive lifecycle, representing at most a 6% production on existing cropland Species change in the energy grass lifecycle internationally would not be expected In response to the January 2012 impacts in comparison to the petroleum to have land use impacts beyond what proposed rule, EPA received comments fuel baseline. Furthermore, the two was considered for switchgrass feedstocks considered are expected to highlighting the concern that by production. Even if there were have similar or lower GHG emissions approving certain new feedstock types than switchgrass associated with other unexpected larger differences, EPA under the RFS program, EPA would be components of the biofuel lifecycle. believes the small amounts of feedstock encouraging their introduction or Under a hypothetical worst case, if or fuel potentially coming from other expanded planting without considering the calculated increases in growing and countries will not impact our threshold their potential impact as invasive 14 harvesting the new feedstocks are analysis. species. Commenters stated that incorporated into the lifecycle GHG Based on our assessment of Arundo donax (giant reed) and emissions calculated for switchgrass, switchgrass in the March 2010 RFS final Pennisetum purpureum (napier grass) and other lifecycle components are rule and this comparison of GHG have been identified as invasive species projected as having similar GHG emissions from switchgrass and giant in certain parts of the country. These impacts to switchgrass (including land reed and napier grass, we do not expect commenters asserted that giant reed and napier grass ‘‘are invasive species use change associated with switchgrass variations to be large enough to bring within the definition of the Executive production), the overall lifecycle GHG the overall GHG impact of fuel made Order.’’ 15 Commenters stated that EPA reductions for biofuel produced from from giant reed or napier grass to come should not approve the proposed giant reed and napier grass still meet the close to the 60% threshold for cellulosic feedstocks until EPA has conducted an 60% reduction threshold for cellulosic biofuel. Therefore, EPA is including biofuel, the lowest being a 64% invasive species analysis, as required cellulosic biofuel produced from the under Executive Order (E.O.) 13112. reduction (for napier grass diesel cellulose, hemicelluloses and lignin produced through gasification and EPA also received comments stating portions of giant reed and napier grass that giant reed is not ‘‘invasive’’ as upgrading) compared to the petroleum under the same pathways for which baseline. We believe these are defined by E.O. 13112, since giant reed cellulosic biomass from switchgrass ‘‘only presents problems of invasiveness conservative estimates, as use of giant qualifies under the RFS program. reed or napier grass as a feedstock is 14 expected to have smaller land-use GHG Comment submitted by Jonathan Lewis, Senior 13 See Williams et al. (Docket Number EPA–HQ– Counsel, Climate Policy, Clean Air Task Force et al., impacts than switchgrass, due to their OAR–2011–0542–0631); Letter from Petro Losa to dated February 6, 2012. Document ID# EPA–HQ– higher yields. The docket for this rule Lisa Jackson and Boris Bershteyn, dated October 10, OAR–2011–0542–0118. ‘‘Executive Order’’ refers to provides additional detail on the 2012 (Docket Number EPA–HQ–OAR–2011–0542– Executive Order 13112, Invasive Species, signed analysis of giant reed and napier grass 0625); Virtue et al. at www.caws.org.au/awc/2010/ February 3, 1999. awc201011761.pdf (Docket Number EPA–HQ– 15 Comments submitted by Robert L. Bendick, as biofuel feedstocks. OAR–2011–0542–0611); Information on Arundo Director, U.S. Government Affairs, The Nature Although this analysis assumes giant donax (Docket Number EPA–HQ–OAR–2011–0542– Conservancy et al., dated February 6, 2012. reed and napier grass biofuels produced 0619). Document ID# EPA–HQ–OAR–2011–0542–0119.

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in riparian areas prone to torrential no significant indirect greenhouse gas United States where giant reed or napier flooding . . . giant reed has been grown emissions associated with the spread grass is a native plant and growing it as responsibly in numerous places . . . and subsequent remediation of these a feedstock will not lead to any without problems of invasiveness.’’ 16 feedstocks when grown for biofuel additional spread of the plant. E.O. 13112, signed in February 1999, production for the RFS program. Based Registration of the producer would calls for each federal agency ‘‘to the on this assumption, the lifecycle therefore require either EPA approval of extent practicable and permitted by law analysis does not include any an RMP or an EPA determination that . . . not authorize, fund, or carry out expenditures of energy or other sources no plan is needed based on the actions that it believes are likely to of GHGs to remediate the spread of demonstration noted above. RINs could cause or promote the introduction or these species, such as mechanical not be generated for renewable fuel spread of invasive species in the United removal or chemical control activities, produced using the giant reed or napier States or elsewhere unless, pursuant to outside of the locations where it is grass pathway absent such approval or guidelines that it has prescribed, the grown as a renewable fuel feedstock for determination. EPA is also adopting agency has determined and made public the RFS program. related recordkeeping and reporting its determination that the benefits of EPA is not in a position to estimate requirements. The registration, such actions clearly outweigh the the magnitude of GHG emissions that reporting, and recordkeeping (RRR) potential harm caused by invasive might be associated with any such requirements are described in more species; and that all feasible and remediation if the plants are not detail below. prudent measures to minimize risk of controlled in this manner at these The CAA defines renewable fuel as harm will be taken in conjunction with locations. Given this uncertainty, EPA is fuel produced from renewable the actions.’’ 17 The Executive Order not ready at this time to determine the biomass,25 and the definitions of defines ‘‘invasive species’’ as ‘‘an alien percent reduction in lifecycle GHG categories of renewable fuel, i.e., species whose introduction does or is emissions and whether it satisfies the advanced biofuel, biomass-based diesel, likely to cause economic or threshold reduction in GHGs required and cellulosic biofuel, specify the fuels’ environmental harm or harm to human under the Act, absent such an lifecycle GHG emissions compared to health.’’ assumption. Therefore EPA believes it is baseline gasoline or diesel fuel GHG Giant reed is listed as a noxious or prudent to require renewable fuel emissions.26 The definition of invasive species by Texas,18 Nevada,19 producers to commit to the necessary renewable biomass also specifies certain and California,20 and these states have long-term mechanisms to demonstrate conditions that biomass must meet to be programs in place to address invasive that their production of renewable fuel considered renewable biomass.27 The species concerns. Several other states from giant reed or napier grass is definitions of renewable biomass and also consider giant reed a problem or consistent with this assumption, as a renewable fuels do not specifically threat 21 and napier grass is currently condition of approval as a RIN- address the potential environmental not recommended in Florida because of generating producer of renewable fuel impacts associated with the use of invasive potential.22 While not under the RFS program. By requiring potentially invasive species as prohibiting its planting, Oregon has the fuel producer to demonstrate no feedstocks.28 Given the text and promulgated strict regulations for the significant likelihood of spread beyond structure of section 211(o), EPA does cultivation of giant reed anywhere in the planting area EPA believes that the not consider environmental factors the state.23 Other states, such as North approval of pathways to produce other than the lifecycle analysis of GHG Carolina, have specifically determined renewable fuel from giant reed or napier emissions and the definition of that giant reed does not warrant listing grass is not likely to cause or promote renewable biomass in determining as a noxious weed in their state.24 the introduction or spread of invasive whether a fuel produced from biomass In the January 5, 2012 proposal, EPA species in the United States or is a renewable fuel for purposes of the included the proposed lifecycle analysis elsewhere. RFS program. of giant reed and napier grass. As B. Registration, Reporting, and Record The requirements for producers discussed below, EPA’s lifecycle Keeping Requirements To Address summarized above and discussed in analysis of the renewable fuel produced Potential Invasiveness more detail below are a reasonable way from these feedstocks assumes there are to implement this authority when EPA is requiring that registration for considering the full lifecycle GHG producers of renewable fuel made from 16 Comment submitted by R. Timothy Columbus emissions for renewable fuel produced and Christopher G. Falcone, Steptoe & Johnson LLP giant reed or napier grass would include from giant reed and napier grass. EPA on behalf of The Chemtex Group, dated February submission by the renewable fuel has included additional registration, 13, 2012. Document ID# EPA–HQ–OAR–2011– producer of a Risk Mitigation Plan recordkeeping, and reporting 0542–0124. (RMP) that demonstrates measures are requirements in this rule, to address 17 http://www.gpo.gov/fdsys/pkg/FR-1999-02-08/ being taken to prevent the spread of pdf/99-3184.pdf. EPA’s lifecycle analysis and concerns 18 See http://info.sos.state.tx.us/fids/200701978- these species such that the production related to the spread of invasive species. 1.html. Accessed on March 30, 2012. of giant reed or napier grass will not 19 See http://agri.nv.gov/nwac/ pose a significant likelihood of spread 25 CAA § 211(o)(1)(J). _ PLANT NoxWeedList.htm. Accessed on May 23, beyond the planting area designated in 26 CAA §§ 211(o)(1)(B), (D), (E). 2012. the plan for the feedstock used for 27 CAA § 211(o)(1)(I). 20 See http://pi.cdfa.ca.gov/pqm/manual/pdf/ 28 Separately, the CAA directs EPA to consider 107.pdf. Accessed on March 30, 2012. production of the renewable fuel. additional factors, including environmental impacts 21 Alternatively, the fuel producer could See http://www.gaeppc.org/list.cfm. Accessed of the production and use of renewable fuels, in the on May 23, 2012. demonstrate that an RMP is not needed context of determining the required volumes of 22 See http://www.fleppc.org/list/ because under the circumstances giant renewable fuel for years where Congress does not 2011PlantList.pdf. Accessed on May 212, 2013. reed or napier grass does not pose a specify volumes, at CAA § 211(o)(2)(B)(ii). In 23 See http://www.oregon.gov/oisc/docs/pdf/ significant likelihood of spread beyond addition, Congress mandated that EPA conduct arundo603_052_1206.pdf. Accessed May 20, 2013. certain studies and provide reports to Congress on 24 Letter from Stephen W. Troxler to Bob the planting area. For example, an RMP air quality impacts and other issues besides Perciasepe, dated March 26, 2013. See Docket may not be needed where the growing greenhouse gas impacts associated with the RFS Number EPA–HQ–OAR–2011–0542–0665. area is an area or region outside the program. See CAA § 211(q), (v) and EISA § 204.

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EPA developed these additional introduction into, or movement within, grass do not pose a significant requirements by building upon a Florida of plant species intended for likelihood of spread beyond the number of state, federal, and local biomass plantings. One provision of the planting area. For example, EPA would mechanisms that are already in place to process is that no biomass permit shall consider not requiring an RMP in cases reduce the potential invasive impacts of be issued for any planting of plants on where the growing area is an area or species such as giant reed and napier the state noxious weed list or the federal region outside the United States where grass. For example, if producers were to noxious weed list. In 2009, a company, giant reed or napier grass is a native apply for the Biomass Crop Assistance White Technologies LLC, applied for plant and growing it as a feedstock will Program (BCAP), USDA would require and received a permit to grow 80 acres not lead to any additional spread of the an environmental assessment that of giant reed under the Florida program. plant. While ongoing monitoring will analyzes the risk of invasiveness. In Under Oregon State Statutes, Chapter not be required when it is determined addition, USDA’s Conservation Reserve 570, § 570.405, the Oregon Department that an RMP is not needed, the Program (CRP) can also impose of Agriculture may establish control recordkeeping requirements nonetheless restrictions on farmers interested in areas if after careful investigation it require the producer or importer to growing giant reed on CRP land. determines that such areas are necessary notify EPA within five (5) days of any Furthermore, invasive species are for the general protection of the reported growth of the feedstock outside controlled and regulated under various horticultural, agricultural or forest the intended planting area. This will existing federal and state guidelines. industries of the state from diseases, allow EPA to keep track of the growth The Animal and Plant Health Inspection insects, animals or noxious weeds. In and possible invasive nature of the Service (APHIS) of the USDA regulates March of 2011, the State created a feedstock. Also, as per § 80.1450(b)(2), noxious weeds under the authority of control area for giant reed in Morrow the producer or importer must submit the Plant Protection Act (PPA). APHIS and Umatilla Counties. The regulation, an independent engineering report names the regulated weeds in the with restrictions, allowed for up to 400 every three years verifying all the noxious weed regulations (7 CFR part acres of giant reed to be grown in information submitted at registration. 360) that may not be imported into the Morrow and Umatilla Counties for This will include the producer or United States, or moved interstate, providing biomass for a test burn at the importer’s demonstration that the without a special permit. The Portland General Electric Boardman feedstock presents no substantial requirements included in this rule are Power Plant. likelihood of spread beyond the not intended to negate or supersede any Given the potential for greenhouse gas intended planting area. local, state, or federal authority to emissions associated with remediation In either case, EPA would require the restrict or ban these feedstocks due to of the spread of giant reed and napier producer to submit a letter from the invasiveness or other concerns. grass, EPA believes it is prudent to appropriate USDA office with its The potential for spread posed by allow RINs to be generated for fuel registration materials, stating USDA’s potentially invasive feedstocks may be produced from these feedstocks only if opinions regarding the likelihood of the greatly reduced through the use of best they are grown, transported, and used to feedstock spreading beyond the planting practices.29 Commenters referenced the produce fuel in a manner that is area, and the sufficiency of the RMP (if voluntary best practices document consistent with our lifecycle analysis. applicable) in addressing and mitigating developed jointly by the North Carolina EPA is requiring that producers of such likelihood. Department of Agriculture and renewable fuel derived from giant reed EPA, again after consultation with Consumer Services, the NC State and napier grass must submit a Risk USDA and any other relevant University Cooperative Extension, and Mitigation Plan to ensure that the governmental agencies, would make its the Biofuels Center of North Carolina. production of giant reed or napier grass determination regarding whether the Many of the recommendations will not pose a significant likelihood of producer’s plan demonstrates that there developed in this document are similar spread beyond the planting area of the is not a significant likelihood of the to the best practices USDA describes for feedstock used for production of the feedstock spreading beyond the the management of similar energy crops renewable fuel. EPA would consult with intended planting area prior to such as switchgrass and miscanthus.30 the appropriate responsible registering the renewable fuel producer For example, both USDA and the North governmental agencies, including and allowing RINs to be generated for Carolina voluntary standards USDA, about the RMP, and would fuel produced from that feedstock. recommend developing management approve it if it meets the regulatory Risk Mitigation Plans would be plans that avoid planting at sites criteria described in required to incorporate approaches that without buffer areas and avoid feedstock § 80.1450(b)(1)(ix)(A). The producer or are already recognized as highly production in floodplains. importer may only generate RINs for effective. One highly effective approach The spread of potentially invasive fuel produced from these feedstocks if to risk mitigation is Hazard Analysis feedstocks is also controlled by some the feedstocks were grown and Critical Control Point (HACCP).31 states. For example, in Florida, biomass transported in compliance with an EPA HACCP examines each phase of an plantings are governed by FL Rule 5B– approved RMP and if the producer invasive species pathway to identify 57.011. According to the rule, a permit follows the approved RMP. If the RMP control and evaluation measures to for biomass plantings is required for two for a particular feedstock is not reduce the likelihood of spread. Applied contiguous acres within one parcel of performed, any RINs generated for fuel within a coordinated HACCP strategy or land for any plant used for biomass produced from that feedstock are plan, these control and evaluation production. The purpose of the invalid under § 80.1431, and the measures reinforce each other. To the permitting process is to control the generation of invalid RINs is a extent appropriate, HACCP should be prohibited act under § 80.1460(b)(2), incorporated into a Risk Mitigation 29 Comment submitted by the Biofuels Center of subject to civil penalties. Plan. Also as part of the RMP, the North Carolina and the Institute for Sustainable and Alternately, the producer could Renewable Resources, dated February 13, 2012. producer would demonstrate how the Document ID# EPA–HQ–OAR–2011–0542–0123. submit information and data showing 30 See http://www.nrcs.usda.gov/Internet/ that no RMP is needed because under 31 See http://www.habitat.noaa.gov/pdf/ FSE_DOCUMENTS/stelprdb1044768.pdf. the circumstances giant reed or napier HACCP%20Training%20Manual.pdf.

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use of best management practices production and management operations can demonstrate to EPA that they were (BMPs), such as those developed by the have stopped. produced in compliance with an RMP Invasive Species Advisory Committee 32 Furthermore, the RMP should include or from land that EPA has determined for any species, by USDA for an on-going monitoring and reporting will not create a significant likelihood of miscanthus,33 and by the State of component. The monitoring would spread beyond the planting area of the Oregon for Arundo donax,34 will be cover the presence or absence of the feedstock used for production of the used by the feedstock grower and how giant reed or napier grass, and the renewable fuel. such practices will minimize the planting locations prior to and during Specifically, the reporting potential spread of the renewable fuel feedstock cultivation. Monitoring requirements for producers who feedstock. BMPs include the should be done during the growing generate RINs from these feedstocks season, as well as extend for a sufficient include a certification on renewable fuel development and implementation of period after the field is no longer used production reports that the feedstock mitigation strategies and plans to for feedstock production to ensure no was grown, harvested, transported, and minimize escape and other impacts remnants of giant reed or napier grass stored in compliance with an RMP or (e.g., minimize soil disturbance), survive or spread. The details of a from land that EPA has determined will incorporate desirable traits (e.g., sterility monitoring and reporting plan, not create a significant likelihood of or reduced seed production), develop including the party responsible for spread beyond the planting area. and put in place dispersal mitigation collecting and overseeing monitoring Additionally, producers will be required protocols prior to cultivation of biofuel data, will be specific to the project and to include with their quarterly reports a plants in each region or ecosystem, planting site, and should account for summary of the types and quantities of develop multiple year eradication and respond to any applicable local, these feedstocks used throughout the protocols for rapid removal of biofuel state or federal regulations. The area quarter, as well as maps of the land from crops if they disperse beyond desired that needs to be monitored would also which the feedstocks used in the quarter crop rotation period, and develop plans be approved by EPA, in consultation were harvested. EPA’s recordkeeping for early detection and rapid response with the appropriate responsible provisions require renewable fuel (EDRR).35 EDRR efforts should also be officials. The area to be monitored producers to maintain sufficient records incorporated into an RMP; such efforts should be sufficient to detect any to support their claims that their should demonstrate that the likelihood potential spread of the feedstock, both feedstocks were grown and transported that invasions could be halted while surrounding the field of production and in compliance with an RMP or from still localized and identify and employ feedstock storage sites, along the land that EPA has determined will not cooperative networks, communication transportation route, and around the create a significant likelihood of spread forums and consultation processes biofuel production facility. beyond the planting area. through which federal, state, and local EPA is requiring the use of a third If submitting an RMP, the renewable agencies can work with other party auditor, independent of the fuel producer would also submit a feedstock grower and renewable fuel number of documents such as a letter stakeholders to reduce the risk of producer to audit the monitoring documenting the feedstock grower’s biological invasion. There are activities and reporting done by the compliance with all of the relevant significant geographic gaps in baseline renewable fuel producer under the RMP federal, state, regional, and local distribution and abundance data for on an annual basis as part of the requirements related to invasive species, invasive species including giant reed producer or importer’s fourth quarterly a copy of all state and local growing and napier grass. It may be difficult to report as set out in § 80.1451(h)(5), permits held by the feedstock grower, determine what plants gave rise to a subject to approval of a different and a communication plan for notifying newly found population and frequency by EPA. For growers who are federal, state, and local authorities if the populations may go undetected for long new to growing or harvesting invasive feedstock is detected outside the periods. For this reason, early detection feedstocks, more frequent monitoring or intended planting areas. Finally, the rapid response efforts should be reporting may be required for the first fuel producer would submit a copy of conducted cooperatively with a priority growing cycle. It will be the the agreement between itself, the on halting the spread of the species. The responsibility of the renewable fuel feedstock grower, and any RMP should include provisions for the producer to identify this competent intermediaries responsible for the closure of the site once it is no longer independent third party as part of its harvesting, transport and storage of the used for production of feedstock for registration application. Any future feedstock, establishing the parties’ rights biofuel use under the RFS program or changes to the use of a different and duties related to the RMP and any upon abandonment by the feedstock independent third party, or changes to other activities and liability associated grower, including the destruction and any EPA approved management or with the prevention of the spread of the removal of all remaining feedstock. Site monitoring mechanisms or practices feedstock. It is essential that the decommissioning planning is also must be documented in a revised RMP, feedstock grower, fuel producer, and required for sites that have reviewed, and approved by EPA in any intermediaries responsible for the demonstrated that they do not need an advance of the change. RINs generated harvesting, transport, and storage of the RMP to prevent escapes after active crop for renewable fuel produced from giant feedstock are clearly on notice of their reed or napier grass without EPA’s relative rights and duties in this approval for the RMP (where such a situation because the regulations will 32 See http://www.invasivespecies.gov/ home_documents/BiofuelWhitePaper.pdf. plan is required) would be invalid. require the fuel producer to exercise a 33 See http://www.nrcs.usda.gov/Internet/ The recordkeeping and reporting level of responsibility for and oversight FSE_DOCUMENTS/stelprdb1044768.pdf. provisions would require producers to of the feedstock production, harvest, 34 See http://www.oregon.gov/oisc/docs/pdf/ obtain documentation about giant reed transport and storage that may not arundo603_052_1206.pdf. or napier grass feedstocks from their normally exist in a buy-sell contract for 35 http://www.invasivespecies.gov/global/EDRR/ feedstock supplier(s) and take the agricultural products. Finally, pursuant EDRR_documents/ Guidelines%20for%20Early%20Detection measures necessary to ensure that they to existing regulations, EPA may require %20&%20Rapid%20Response.pdf. know the source of their feedstocks and additional information as needed at the

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time of registration, which may be unintended growth outside the planted C. Regulatory Flexibility Act especially appropriate when the agency area. We are also including provisions The Regulatory Flexibility Act (RFA) considers the approval of a feedstock wherein growth outside the planting generally requires an agency to prepare with risk of invasiveness. area could result in a suspension of the a regulatory flexibility analysis of any As part of the registration process, producer’s registration and ability to rule subject to notice and comment EPA will require information on the generate RINs via that pathway until rulemaking requirements under the financial resources or other financial remediation activities were completed Administrative Procedure Act or any mechanism available to finance and the potential for further spread was other statute unless the agency certifies reasonable remediation activities and addressed. Prohibiting the generation of that the rule will not have a significant may require, where appropriate, the fuel RINs in this situation would provide an economic impact on a substantial producer to include in an RMP a incentive for the producer to conduct demonstration that there is an adequate number of small entities. Small entities better oversight of the feedstock include small businesses, small mechanism (such as a state- supplier and prevent unintended administered fund, bond, or certificate organizations, and small governmental growth beyond the planting area, and of deposit) to ensure the availability of jurisdictions. would also ensure that the generation of financial resources sufficient to cover For purposes of assessing the impacts RINs via these pathways is consistent reasonable potential remediation costs of today’s rule on small entities, small with the underlying lifecycle analysis. associated with the spread of giant reed entity is defined as: (1) A small business Also, as noted above, if the RMP is not or napier grass beyond the intended as defined by the Small Business planting areas. EPA would consult with performed as intended, any RINs Administration’s (SBA) regulations at 13 USDA and, as appropriate, other federal generated for fuel produced from that CFR 121.201; (2) a small governmental agencies on the need for and, where feedstock are invalid under § 80.1431, jurisdiction that is a government of a appropriate, the extent of financial and the generation of such invalid RINs city, county, town, school district or resources required for adequate is a prohibited act subject to civil special district with a population of less assurances of containment and penalties. Those penalties would be than 50,000; and (3) a small remediation in the event of a spread. assessed according to CAA § 211(d)(1), organization that is any not-for-profit USDA’s letter on the suitability of an amounting to up to $37,500 per enterprise which is independently RMP (noted above) should include these violation per day plus any economic owned and operated and is not recommendations considering site benefit or savings resulting from the dominant in its field. specific characteristics. The primary violations. After considering the economic purpose of such a mechanism would be impacts of this action on small entities, IV. Statutory and Executive Order I certify that this rule will not have a to ensure that the fuel producer has the Reviews necessary finances to ensure that giant significant economic impact on a reed or napier grass does not spread A. Executive Order 12866: Regulatory substantial number of small entities. beyond the intended borders. In this Planning and Review and Executive This rule will not impose any new way, we believe such a mechanism Order 13563: Improving Regulation and requirements on small entities. The would be consistent with the lifecycle Regulatory Review relatively small changes this rule makes analyses for these pathways, which to the RFS regulations do not impact assume no significant indirect GHG Under Executive Order 12866 (58 FR small entities. 51735, October 4, 1993), this action is a emissions from remediation activities. D. Unfunded Mandates Reform Act Since the expected result would be ‘‘significant regulatory action.’’ additional assurance that preventive Accordingly, EPA submitted this action This rule does not contain a federal measures are taken, it would further to the Office of Management and Budget mandate that may result in expenditures decrease the likelihood of spread and (OMB) for review under Executive of $100 million or more for State, local, associated remediation activities Orders 12866 and 13563 (76 FR 3821, and tribal governments, in the aggregate, occurring, which is consistent with the January 21, 2011) and any changes made or the private sector in any one year. We assumption of the lifecycle analysis. in response to OMB recommendations have determined that this action will EPA believes that a robust RMP as have been documented in the docket for not result in expenditures of $100 discussed above, combined with the this action. million or more for the above parties additional measures to prevent spread and thus, this rule is not subject to the of the feedstock resulting from a B. Paperwork Reduction Act requirements of sections 202 or 205 of financial assurance mechanism, would The modifications to the RFS UMRA. be consistent with EPA’s assumption of regulations contained in this rule are This rule is also not subject to the requirements of section 203 of UMRA no significant indirect greenhouse gas within the scope of the information because it contains no regulatory emissions associated with the spread collection requirements previously requirements that might significantly or and subsequent remediation of these submitted to the Office of Management uniquely affect small governments. It feedstocks grown for biofuel production and Budget (OMB) for the RFS only applies to gasoline, diesel, and for the RFS program. regulations. To further reduce the likelihood of renewable fuel producers, importers, growth beyond the planting area for OMB has approved the information distributors and marketers and makes these feedstocks, EPA is also including collection requirements contained in the relatively minor corrections and additional consequences for producers existing regulations at 40 CFR part 80, modifications to the RFS regulations. whose feedstock grows beyond the subpart M under the provisions of the intended planting area. The reporting Paperwork Reduction Act, 44 U.S.C. E. Executive Order 13132 (Federalism) requirements include a requirement that 3501 et seq. and has assigned OMB This action does not have federalism the producer notify EPA and USDA and control numbers 2060–0637 and 2060– implications. It will not have substantial relevant agencies identified in the 0640. The OMB control numbers for direct effects on the States, on the communications plan as soon as EPA’s regulations in 40 CFR are listed relationship between the national practicable after detection of in 40 CFR part 9. government and the States, or on the

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distribution of power and I. National Technology Transfer and invasive species. EPA has determined responsibilities among the various Advancement Act that this rule is not likely to cause or levels of government, as specified in Section 12(d) of the National promote the introduction or spread of Executive Order 13132. This action only Technology Transfer and Advancement invasive species, since this rulemaking applies to gasoline, diesel, and Act of 1995 (‘‘NTTAA’’), Public Law requires the demonstration by the renewable fuel producers, importers, 104–113, 12(d) (15 U.S.C. 272 note) renewable fuel producer that the growth distributors and marketers and makes directs EPA to use voluntary consensus of Arundo donax or Pennisetum relatively minor corrections and standards in its regulatory activities purpureum will not pose a significant modifications to the RFS regulations. unless to do so would be inconsistent likelihood of spread beyond the Thus, Executive Order 13132 does not with applicable law or otherwise planting area of the feedstock used for apply to this action. impractical. Voluntary consensus production of the renewable fuel. F. Executive Order 13175 (Consultation standards are technical standards (e.g., L. Congressional Review Act materials specifications, test methods, and Coordination With Indian Tribal The Congressional Review Act, 5 Governments) sampling procedures, and business practices) that are developed or adopted U.S.C. 801 et seq., as added by the Small This rule does not have tribal by voluntary consensus standards Business Regulatory Enforcement implications, as specified in Executive bodies. NTTAA directs EPA to provide Fairness Act of 1996, generally provides Order 13175 (65 FR 67249, November 9, Congress, through OMB, explanations that before a rule may take effect, the 2000). It applies to gasoline, diesel, and when the Agency decides not to use agency promulgating the rule must renewable fuel producers, importers, available and applicable voluntary submit a rule report, which includes a distributors and marketers. This action consensus standards. copy of the rule, to each House of the Congress and to the Comptroller General makes relatively minor corrections and This action does not involve technical of the United States. A major rule modifications to the RFS regulations, standards. Therefore, EPA did not cannot take effect until 60 days after it and does not impose any enforceable consider the use of any voluntary is published in the Federal Register. duties on communities of Indian tribal consensus standards. EPA will submit a report containing this governments. Thus, Executive Order J. Executive Order 12898: Federal rule and other required information to 13175 does not apply to this action. Actions To Address Environmental the U.S. Senate, the U.S. House of G. Executive Order 13045: Protection of Justice in Minority Populations and Representatives, and the Comptroller Children From Environmental Health Low-Income Populations General of the United States prior to Risks and Safety Risks Executive Order (E.O.) 12898 (59 FR publication of the rule the Federal 7629 (Feb. 16, 1994)) establishes federal Register. This action is not a ‘‘major EPA interprets E.O. 13045 (62 FR executive policy on environmental rule’’ as defined by 5 U.S.C. 804(2). 19885, April 23, 1997) as applying only justice. Its main provision directs to those regulatory actions that concern V. Statutory Provisions and Legal federal agencies, to the greatest extent Authority health or safety risks, such that the practicable and permitted by law, to analysis required under section 5–501 of make environmental justice part of their Statutory authority for the rule the E.O. has the potential to influence mission by identifying and addressing, finalized today can be found in section the regulation. This action is not subject as appropriate, disproportionately high 211(o) of the Clean Air Act, 42 U.S.C. to E.O. 13045 because it does not and adverse human health or 7545(o). Additional support for today’s establish an environmental standard environmental effects of their programs, rule comes from Section 301(a) of the intended to mitigate health or safety policies, and activities on minority Clean Air Act, 42 U.S.C. 7414, 7542, and risks. populations and low-income 7601(a). H. Executive Order 13211: Actions populations in the United States. List of Subjects in 40 CFR Part 80 Concerning Regulations That EPA has determined that this rule will Significantly Affect Energy Supply, not have disproportionately high and Environmental protection, Distribution, or Use adverse human health or environmental Administrative practice and procedure, effects on minority or low-income Agriculture, Air pollution control, This action is not a ‘‘significant populations because it does not affect Confidential business information, energy action’’ as defined in Executive the level of protection provided to Diesel Fuel, Energy, Forest and Forest Order 13211 (66 FR 28355 (May 22, human health or the environment. Products, Fuel additives, Gasoline, 2001)), because it is not likely to have These amendments would not relax the Imports, Penalties, Petroleum, Reporting a significant adverse effect on the control measures on sources regulated and recordkeeping requirements. supply, distribution, or use of energy. by the RFS regulations and therefore Dated: June 28, 2013. This rulemaking does not change any would not cause emissions increases Bob Perciasepe, programmatic structural component of from these sources. Acting Administrator. the RFS regulatory requirements. This K. Executive Order 13112: Invasive rulemaking does not add any new For the reasons set forth in the Species requirements for obligated parties under preamble, 40 CFR part 80 is amended as the program or mandate the use of any Executive Order (E.O.) 13112 (64 FR follows: of the new pathways contained in the 6183 (Feb. 3, 1999)) calls for each rule. This rulemaking only makes a Federal agency to not take actions that PART 80—REGULATION OF FUELS determination to qualify new fuel it believes are likely to cause or promote AND FUEL ADDITIVES pathways under the RFS regulations, the introduction or spread of invasive creating further opportunity and species unless the agency has ■ 1. The authority citation for part 80 flexibility for compliance with the determined its determination that the continues to read as follows: Energy Independence and Security Act benefits of such actions clearly Authority: 42 U.S.C. 7414, 7521(1), 7545 of 2007 (EISA) mandates. outweigh the potential harm caused by and 7601(a).

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■ 2. Section 80.1426 is amended by § 80.1426 How are RINs generated and (1) * * * revising Rows K, L, and N of Table 1 in assigned to batches of renewable fuel by paragraph (f)(1), and by adding renewable fuel producers or importers? paragraph (f)(14) to read as follows: * * * * * * * * * * (f) * * *

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

Production Fuel type Feedstock process re- D-Code quirements

******* K Ethanol ...... Cellulosic Biomass from crop residue, slash, pre-commercial thinnings and tree Any ...... 3 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 compo- nents of separated MSW. L Cellulosic diesel, jet fuel Cellulosic Biomass from crop residue, slash, pre-commercial thinnings and tree Any ...... 7 and heating oil. 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 compo- nents of separated MSW.

******* N Naphtha ...... Cellulosic biomass from switchgrass, miscanthus, energy cane, Arundo donax, Gasification 3 and Pennisetum purpureum. and up- grading.

* * * * * (1) A Risk Mitigation Plan (Plan) that (i) Monitoring and reporting data for (14) A producer or importer of demonstrates the growth of Arundo a period prior to planting that is renewable fuel using giant reed (Arundo donax or Pennisetum purpureum will sufficient to establish a baseline, donax) or napier grass (Pennisetum not pose a significant likelihood of through crop production, and extending purpureum) as a feedstock may generate spread beyond the planting area of the beyond crop production for a sufficient RINs for that renewable fuel if: feedstock used for production of the period after the field is no longer used (i) The feedstock is produced, renewable fuel. The Plan must identify for feedstock production to ensure no managed, transported, collected, and incorporate best management remnants of giant reed or napier grass monitored, and processed according to practices (BMPs) into the production, survive or spread. a Risk Mitigation Plan approved by EPA (ii) Monitoring must include the area management, transport, collection, under the registration procedures encompassing the feedstock growing specified in § 80.1450(b)(1)(x)(A); or, monitoring, and processing of the areas, the transportation corridor (ii) EPA has determined that there is feedstock. To the extent practicable, the between the growing areas and the not a significant likelihood of spread Risk Mitigation Plan should utilize a renewable fuel production facility, and beyond the planting area of the Hazard Analysis Critical Control Point the renewable fuel production facility, feedstock used for production of the (HACCP) approach to examine each extending to the distance of potential renewable fuel. Any determination that phase of the pathway to identify spread propagation of the feedstock species, or Arundo donax or Pennisetum reduction steps. BMPs should include further if necessary. purpureum does not present a the development of mitigation strategies (iii) Monitoring must reflect the significant likelihood of spread beyond and plans to minimize escape and other likelihood of spread specific to the the planting area must be based upon impacts (e.g., minimize soil feedstock. clear and compelling evidence, disturbance), incorporate desirable traits (iv) A closure plan providing for the including information and supporting (e.g., sterility or reduced seed destruction and removal of feedstock data submitted by the producer. Such a production), develop and implement from the growing area upon determination must be made by EPA as dispersal mitigation protocols prior to abandonment by the feedstock grower or specified in § 80.1450(b)(1)(x)(B). cultivation, develop multiple year end of production. (v) A plan providing for an * * * * * eradication controls. Eradication independent third party who will audit ■ 3. Section 80.1450 is amended by controls should follow an approach of the monitoring and reporting conducted adding paragraph (b)(1)(x) to read as early detection and rapid response follows: in accordance with the Plan on an (EDRR) to unintended spread. EDRR annual basis, subject to approval of a § 80.1450 What are the registration efforts should demonstrate the different frequency by EPA. requirements under the RFS program? likelihood that invasions will be halted (2) A letter from the United States * * * * * while still localized and identify and Department of Agriculture (‘‘USDA’’) to (b) * * * employ cooperative networks, the renewable fuel producer stating (1) * * * communication forums, and USDA’s conclusions and the bases (x)(A) For a producer of renewable consultation processes with federal, therefore regarding whether the Arundo fuel made from Arundo donax or state, and local agencies. The Risk donax or Pennisetum purpureum does Pennisetum purpureum per Mitigation Plan must provide for the or does not present a significant § 80.1426(f)(14)(i): following: likelihood of spread beyond the

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planting area of the feedstock used for associated with the spread of giant reed (1) Any detected growth of Arundo production of the renewable fuel as or napier grass beyond the intended donax or Pennisetum purpureum proposed by the producer. This letter planting areas. outside the intended planting area, shall also include USDA’s (9) EPA may require additional within 5 business days after detection recommendation of whether it is information as appropriate. and in accordance with the Risk appropriate to require the use of a (B) For a producer of renewable fuel Mitigation Plan, if applicable. financial mechanism to ensure the made from Arundo donax or (2) As available, any updated availability of financial resources Pennisetum purpureum per information related to the Risk sufficient to cover reasonable potential § 80.1426(f)(14)(ii): Mitigation Plan, as applicable. An remediation costs associated with the (1) Clear and compelling evidence, updated Risk Mitigation Plan must be invasive spread of giant reed or napier including information and supporting approved by the Administrator in grass beyond the intended planting data, demonstrating that Arundo donax consultation with USDA prior to its areas. In coordination with USDA, EPA or Pennisetum purpureum does not implementation. shall identify for the producer the present a significant likelihood of (3) On an annual basis, a description appropriate USDA office from which the spread beyond the planting area of the of and maps or electronic data showing letter should originate. feedstock used for production of the the average and total size and prior use (3) Identification of all federal, state, renewable fuel. Evidence must include of lands planted with Arundo donax or regional, and local requirements related data collected from similar Pennisetum purpureum, the average and to invasive species that are applicable environments (soils, temperatures, total size and prior use of lands set aside for the feedstock at the growing site and precipitation, USDA Hardiness Zones) to control the invasive spread of these at all points between the growing site as the proposed feedstock production crops, and a description and and the fuel production site. project site and accepted by the explanation of any change in land use (4) A copy of all state and local scientific community. Such a from the previous year. (4) On an annual growing permits held by the feedstock demonstration should include basis, the report from an independent grower. consideration of the elements of a Risk third party auditor evaluating (5) A communication plan for Mitigation Plan set forth in paragraph monitoring and reporting activities notifying EPA’s Office of Transportation (b)(1)(x)(A) of this section, fully disclose conducted in accordance with the Risk and Air Quality, USDA, adjacent federal the potential invasiveness of the Mitigation Plan, as applicable subject to land management agencies, and any feedstock, provide a closure plan for the approval of a different frequency by relevant state, tribal, regional, and local EPA. authorities as soon as possible after destruction and removal of feedstock from the growing area upon (5) Information submitted pursuant to identification of the issue if the paragraphs (h)(3) and (h)(4) of this feedstock is detected outside planted abandonment by the feedstock grower or end of production, and explain why a section must be submitted as part of the area. producer or importer’s fourth quarterly (6) A copy of the agreement between Risk Mitigation Plan is not needed to make the required determination. report, which covers the reporting the feedstock grower and fuel producer period October–December, according to establishing all rights and duties of the (2) A letter from the United States Department of Agriculture (‘‘USDA’’) to the schedule in paragraph (f)(2) of this parties related to the Risk Mitigation section. Plan and any other activities and the renewable fuel producer stating ■ 5. Section 80.1454 is amended by liability associated with the prevention USDA’s conclusions and the bases adding paragraph (b)(7) to read as of the spread of Arundo donax and/or therefore regarding whether the Arundo follows: Pennisetum purpureum outside of the donax or Pennisetum purpureum does intended planting area. or does not present a significant § 80.1454 What are the recordkeeping (7) A copy of the agreement between likelihood of spread beyond the requirements under the RFS program? planting area of the feedstock used for the fuel producer and an independent * * * * * third party describing how the third production of the renewable fuel as (b) * * * party will audit the monitoring and proposed by the producer or importer. (7) For any producer of renewable fuel reporting conducted in accordance with In coordination with USDA, EPA shall made from Arundo donax or the Risk Mitigation Plan on an annual identify for the producer the appropriate Pennisetum purpureum per basis, subject to approval of a different USDA office from which the letter § 80.1426(f)(14), all the following: timeframe by EPA. should originate. (i) Records related to all requirements (8) Information on the financial (C) EPA may suspend a producer’s and duties set forth in the registration resources or other financial mechanism registration for purposes of generating documents described in (such as a state-administered fund, RINs for renewable fuel using Arundo § 80.1450(b)(1)(x)(A), including but not bond, or certificate of deposit) that donax or Pennisetum purpureum as a limited to the Risk Mitigation Plan, would be available to finance reasonable feedstock if such feedstock has spread monitoring records and reports, and remediation activities associated with beyond the intended planting area. adherence to state, local and federal the potential spread of giant reed or * * * * * invasive species requirements and napier grass beyond the intended ■ 4. Section 80.1451 is amended by permits. planting areas, and information on adding paragraph (h) to read as follows: (ii) Records associated with feedstock whether it is necessary to have any purchases and transfers that identify further such resources or mechanism. § 80.1451 What are the reporting where the feedstocks were produced EPA may require a demonstration that requirements under the RFS program? and are sufficient to verify that there is an adequate financial * * * * * feedstocks used were produced and mechanism (such as a state- (h) Producers or importers of transported in accordance with an EPA administered fund, bond, or certificate renewable fuel made from Arundo approved Risk Mitigation Plan or were of deposit) to ensure the availability of donax or Pennisetum purpureum per produced on land that the EPA financial resources sufficient to cover § 80.1426(f)(14) must report all the determined does not present a reasonable potential remediation costs following: significant likelihood of invasive spread

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beyond the planting area of the FOR FURTHER INFORMATION CONTACT: National Pork Producers Council feedstock used for production of the Thomas L. Yager, Chief, Driver and Waiver Request renewable fuel, including all the Carrier Operations Division, Office of On June 19, 2013, FMCSA received a following: Bus and Truck Standards and request for a 90-day waiver and (A) Maps or electronic data Operations, Federal Motor Carrier Safety application for an exemption from the identifying the boundaries of the land Administration, 1200 New Jersey Ave. National Pork Producers Council (the where each type of feedstock was SE., Washington, DC 20590. Email: Council) on behalf of the following produced. [email protected]. Phone (202) 366–4325. organizations: (B) Bills of lading, product transfer • documents, or other commercial SUPPLEMENTARY INFORMATION: Agricultural and Food Transporters Conference of the American Trucking documents showing the quantity of Legal Basis feedstock purchased from each area Associations; • American Farm Bureau Federation; identified above, and showing each The Transportation Equity Act for the • transfer of custody of the feedstock from 21st Century (TEA–21) (Public Law American Feed Industry the location where it was produced to 105–178, 112 Stat. 107, June 9, 1998) Association; • American Meat Institute; the renewable fuel production facility. provides the Secretary of Transportation • (the Secretary) the authority to grant Livestock Marketing Association; * * * * * • National Cattlemen’s Beef [FR Doc. 2013–16488 Filed 7–10–13; 8:45 am] waivers from any of the Federal Motor Carrier Safety Regulations (FMCSRs) Association; BILLING CODE 6560–50–P • National Chicken Council; issued under section 31136 or chapter • 313 of title 49, United States Code, to a National Milk Producers Federation; DEPARTMENT OF TRANSPORTATION person(s) seeking regulatory relief. (49 • U.S.C. 31136, 31315(a)) The Secretary National Pork Producers Council; • National Turkey Federation; Federal Motor Carrier Safety must make a determination that the • Administration waiver is in the public interest, and that North American Meat Association; • Professional Rodeo Cowboys it is likely to achieve a level of safety Association; and, 49 CFR Part 395 that is equivalent to, or greater than, the • U.S. Poultry and Egg Association. level of safety that would be obtained in [FMCSA–2013–0283] The Council stated that complying the absence of the waiver. Individual with the 30-minute rest break rule will waivers may only be granted to a person Hours of Service; Limited 90-Day cause livestock producers and their for a specific unique, non-emergency Waiver From the 30-Minute Rest Break drivers irreparable harm, place the event, for a period up to three months. Requirement for the Transportation of health and welfare of the livestock at TEA–21 authorizes the Secretary to Livestock risk, and provide no apparent benefit to grant waivers without requesting public public safety, while forcing the livestock AGENCY: Federal Motor Carrier Safety comment, and without providing public industry and their drivers to choose Administration (FMCSA), DOT. notice. ACTION: Notice; grant of waiver. between the humane handling of The Administrator of FMCSA has animals or compliance with the rule. SUMMARY: FMCSA grants a limited 90- been delegated authority under 49 CFR The Council explained that the day waiver from the 30-minute rest 1.87(f) to carry out the functions vested process of transporting livestock, break provision of the Federal hours-of- in the Secretary by 49 U.S.C. chapter whether to slaughter, transfer of service (HOS) regulations for the 311, subchapters I and III, relating to ownership, or for purposes of breeding transportation of livestock. Several commercial motor vehicle programs and or simply finding forage for feed, is a associations representing various safety regulation. significant concern to the agricultural segments of the livestock industry Background industry. The animals face a variety of raised concerns about the risks to the stresses including temperature, health of animals from rising On December 27, 2011 (76 FR 81133), humidity, and weather conditions. temperatures inside livestock trucks FMCSA published a final rule amending During the summer months, exposure during drivers’ mandatory 30-minute its hours-of-service regulations for to heat is one of the greatest concerns in break, especially in light of long-range drivers of property-carrying commercial maintaining the animals’ well-being. weather forecasts for above-normal motor vehicles (CMVs). The final rule This is especially challenging for the temperatures for July, August and included several changes to the HOS transportation of pigs because these September 2013. The industry requested regulations including a new provision animals do not sweat and are subject to relief, and the Agency has determined requiring drivers to take a rest break heat stress. When heat stress occurs, a that it is appropriate to grant a limited during the work day under certain pig’s body temperature rises to a level 90-day waiver for this period to ensure circumstances. Drivers may drive only if that it cannot control through its normal the well-being of the Nation’s livestock 8 hours or less have passed since the panting mechanisms. Under the during interstate transportation. The end of the driver’s last off-duty period industry’s guidelines, drivers are Agency has determined that the waiver, of at least 30 minutes. FMCSA did not directed to avoid stopping in based on the terms and conditions specify when drivers must take the 30- temperatures greater than 80 degrees. imposed, would likely achieve a level of minute break, but the rule requires that Drivers are advised to stop only when safety that is equivalent to, or greater they wait no longer than 8 hours after animals will be immediately unloaded than, the level that would be achieved the last off-duty period of that length or or when safety becomes an issue. If the absent such waiver. This waiver longer to take that break. Drivers that vehicle must be stopped, drivers are preempts inconsistent State and local already take shorter breaks during the required to stay with the animals and requirements. work day could comply with the rule by provide them with water to help keep DATES: The waiver is effective July 11, taking one of the shorter breaks and them cool. 2013. The waiver expires on October 9, extending it to 30 minutes. The new When temperature and humidity 2013. requirement took effect on July 1, 2013. result in a heat index greater than or

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