539 
the requirement in paragraph (2) on commod-
ities used in the production of ethanol), or heat-
ing oil for consumers in any significant area or 
region of the country above the price that would 
otherwise apply to such commodities in the ab-
sence of such requirement; 
‘‘(C) the potential of the requirement of 
paragraph (2) to interfere with the supply of fuel 
in any significant gasoline market or region of 
the country, including interference with the effi-
cient operation of refiners, blenders, importers, 
wholesale suppliers, and retail vendors of gaso-
line, and other motor fuels; and 
‘‘(D) the potential of the requirement of 
paragraph (2) to cause or promote exceedances of 
Federal, State, or local air quality standards. 
If the Administrator determines, by clear and con-
vincing information, after public notice and the op-
portunity for comment, that the requirement of para-
graph (2) would have significant and meaningful ad-
verse impact on the supply of fuel and related infra-
structure or on the economy, public health, or envi-
ronment of any significant area or region of the coun-
try, the Administrator may waive, in whole or in 
part, the requirement of paragraph (2) in any one
540 
year for which the determination is made for that 
area or region of the country, except that any such 
waiver shall not have the effect of reducing the appli-
cable volume of renewable fuel specified in paragraph 
(2)(B) with respect to any year for which the deter-
mination is made. In determining economic impact 
under this paragraph, the Administrator shall not 
consider the reduced revenues available from the 
Highway Trust Fund (section 9503 of the Internal 
Revenue Code of 1986) as a result of the use of eth-
anol. 
‘‘(11) SMALL REFINERIES.— 
‘‘(A) IN
GENERAL.—The requirement of 
paragraph (2) shall not apply to small refineries 
until the first calendar year beginning more 
than 5 years after the first year set forth in the 
table in paragraph (2)(B)(i). Not later than De-
cember 31, 2007, the Secretary of Energy shall 
complete for the Administrator a study to deter-
mine whether the requirement of paragraph (2) 
would impose a disproportionate economic hard-
ship on small refineries. For any small refinery 
that the Secretary of Energy determines would 
experience a disproportionate economic hardship, 
the Administrator shall extend the small refinery
541 
exemption for such small refinery for no less 
than two additional years. 
‘‘(B) ECONOMIC HARDSHIP.— 
‘‘(i) EXTENSION
OF
EXEMPTION.—A 
small refinery may at any time petition the 
Administrator for an extension of the ex-
emption from the requirement of paragraph 
(2) for the reason of disproportionate eco-
nomic hardship. In evaluating a hardship 
petition, the Administrator, in consultation 
with the Secretary of Energy, shall consider 
the findings of the study in addition to 
other economic factors. 
‘‘(ii) DEADLINE FOR ACTION ON PETI-
TIONS.—The Administrator shall act on 
any petition submitted by a small refinery 
for a hardship exemption not later than 90 
days after the receipt of the petition. 
‘‘(C) CREDIT PROGRAM.—If a small refin-
ery notifies the Administrator that it waives the 
exemption provided by this Act, the regulations 
shall provide for the generation of credits by the 
small refinery beginning in the year following 
such notification.
542 
‘‘(D) OPT-IN
FOR
SMALL
REFINERS.—A 
small refinery shall be subject to the require-
ments of this section if it notifies the Adminis-
trator that it waives the exemption under sub-
paragraph (A). 
‘‘(12) ETHANOL MARKET CONCENTRATION ANAL-
YSIS.— 
‘‘(A) ANALYSIS.— 
‘‘(i) IN GENERAL.—Not later than 180 
days after the date of enactment of this sub-
section, and annually thereafter, the Federal 
Trade Commission shall perform a market 
concentration analysis of the ethanol pro-
duction industry using the Herfindahl- 
Hirschman Index to determine whether 
there is sufficient competition among indus-
try participants to avoid price setting and 
other anticompetitive behavior. 
‘‘(ii) SCORING.—For the purpose of 
scoring 
under 
clause 
(i) 
using 
the 
Herfindahl-Hirschman Index, all marketing 
arrangements among industry participants 
shall be considered. 
‘‘(B) REPORT.—Not later than December 1, 
2005, and annually thereafter, the Federal Trade
543 
Commission shall submit to Congress and the 
Administrator a report on the results of the mar-
ket concentration analysis performed under sub-
paragraph (A)(i).’’. 
(b) PENALTIES AND ENFORCEMENT.—Section 211(d) 
of the Clean Air Act (42 U.S.C. 7545(d)) is amended as 
follows: 
(1) In paragraph (1)— 
(A) in the first sentence, by striking ‘‘or 
(n)’’ each place it appears and inserting ‘‘(n), or 
(o)’’; and 
(B) in the second sentence, by striking ‘‘or 
(m)’’ and inserting ‘‘(m), or (o)’’. 
(2) In the first sentence of paragraph (2), by 
striking ‘‘and (n)’’ each place it appears and insert-
ing ‘‘(n), and (o)’’. 
(c) SURVEY OF RENEWABLE FUEL MARKET.— 
(1) SURVEY AND REPORT.—Not later than De-
cember 1, 2006, and annually thereafter, the Admin-
istrator of the Environmental Protection Agency (in 
consultation with the Secretary of Energy acting 
through the Administrator of the Energy Information 
Administration) shall— 
(A) conduct, with respect to each conven-
tional gasoline use area and each reformulated
544 
gasoline use area in each State, a survey to de-
termine the market shares of— 
(i) conventional gasoline containing 
ethanol; 
(ii) reformulated gasoline containing 
ethanol; 
(iii) conventional gasoline containing 
renewable fuel; and 
(iv) reformulated gasoline containing 
renewable fuel; and 
(B) submit to Congress, and make publicly 
available, a report on the results of the survey 
under subparagraph (A). 
(2) RECORDKEEPING AND REPORTING REQUIRE-
MENTS.—The Administrator of the Environmental 
Protection Agency (hereinafter in this subsection re-
ferred to as the ‘‘Administrator’’) may require any re-
finer, blender, or importer to keep such records and 
make such reports as are necessary to ensure that the 
survey conducted under paragraph (1) is accurate. 
The Administrator, to avoid duplicative requirements, 
shall rely, to the extent practicable, on existing re-
porting and recordkeeping requirements and other in-
formation available to the Administrator including