The unobligated balances of amounts made available to carry out section 60108 of Public Law 117–169 (136 Stat. 2070) are rescinded.
SEC. 60108. FUNDING FOR SECTION 211(O) OF THE CLEAN AIR ACT.
(a) TEST AND PROTOCOL DEVELOPMENT.—In addition to amounts otherwise available, there is appropriated to the Administrator of the Environmental Protection Agency for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $5,000,000, to remain available until September 30, 2031, to carry out section 211(o) of the Clean Air Act (42 U.S.C. 7545(o)) with respect to— (1) the development and establishment of tests and protocols regarding the environmental and public health effects of a fuel or fuel additive; (2) internal and extramural data collection and analyses to regularly update applicable regulations, guidance, and procedures for determining lifecycle greenhouse gas emissions of a fuel; and (3) the review, analysis, and evaluation of the impacts of all transportation fuels, including fuel lifecycle implications, on the general public and on low-income and disadvantaged communities.
(b) INVESTMENTS IN ADVANCED BIOFUELS.—In addition to amounts otherwise available, there is appropriated to the Administrator of the Environmental Protection Agency for fiscal year 2022, out of any money in the Treasury not otherwise appropriated, $10,000,000, to remain available until September 30, 2031, for new grants to industry and other related activities under section 211(o) of the Clean Air Act (42 U.S.C. 7545(o)) to support investments in advanced biofuels.
(c) DEFINITION OF GREENHOUSE GAS.—In this section, the term ‘‘greenhouse gas’’ means the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.
[1]Funding reduction
§7545. Regulation of fuels
(o) Renewable fuel program
(1) Definitions
In this section:
(A) Additional renewable fuel
The term “additional renewable fuel” means fuel that is produced from renewable biomass and that is used to replace or reduce the quantity of fossil fuel present in home heating oil or jet fuel.
(B) Advanced biofuel
(i) In general
The term “advanced biofuel” means renewable fuel, other than ethanol derived from corn starch, that has lifecycle greenhouse gas emissions, as determined by the Administrator, after notice and opportunity for comment, that are at least 50 percent less than baseline lifecycle greenhouse gas emissions.
(ii) Inclusions
The types of fuels eligible for consideration as “advanced biofuel” may include any of the following:
(I) Ethanol derived from cellulose, hemicellulose, or lignin.
(II) Ethanol derived from sugar or starch (other than corn starch).
(III) Ethanol derived from waste material, including crop residue, other vegetative waste material, animal waste, and food waste and yard waste.
(IV) Biomass-based diesel.
(V) Biogas (including landfill gas and sewage waste treatment gas) produced through the conversion of organic matter from renewable biomass.
(VI) Butanol or other alcohols produced through the conversion of organic matter from renewable biomass.
(VII) Other fuel derived from cellulosic biomass.
(C) Baseline lifecycle greenhouse gas emissions
The term “baseline lifecycle greenhouse gas emissions” means the average lifecycle greenhouse gas emissions, as determined by the Administrator, after notice and opportunity for comment, for gasoline or diesel (whichever is being replaced by the renewable fuel) sold or distributed as transportation fuel in 2005.
(D) Biomass-based diesel
The term “biomass-based diesel” means renewable fuel that is biodiesel as defined in section 13220(f) of this title and that has lifecycle greenhouse gas emissions, as determined by the Administrator, after notice and opportunity for comment, that are at least 50 percent less than the baseline lifecycle greenhouse gas emissions. Notwithstanding the preceding sentence, renewable fuel derived from co-processing biomass with a petroleum feedstock shall be advanced biofuel if it meets the requirements of subparagraph (B), but is not biomass-based diesel.
(E) Cellulosic biofuel
The term “cellulosic biofuel” means renewable fuel derived from any cellulose, hemicellulose, or lignin that is derived from renewable biomass and that has lifecycle greenhouse gas emissions, as determined by the Administrator, that are at least 60 percent less than the baseline lifecycle greenhouse gas emissions.
(F) Conventional biofuel
The term “conventional biofuel” means renewable fuel that is ethanol derived from corn starch.
(G) Greenhouse gas
The term “greenhouse gas” means carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons,9 sulfur hexafluoride. The Administrator may include any other anthropogenically-emitted gas that is determined by the Administrator, after notice and comment, to contribute to global warming.
(H) Lifecycle greenhouse gas emissions
The term “lifecycle greenhouse gas emissions” means the aggregate quantity of greenhouse gas emissions (including direct emissions and significant indirect emissions such as significant emissions from land use changes), as determined by the Administrator, related to the full fuel lifecycle, including all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming potential.
(I) Renewable biomass
The term “renewable biomass” means each of the following:
(i) Planted crops and crop residue harvested from agricultural land cleared or cultivated at any time prior to December 19, 2007, that is either actively managed or fallow, and nonforested.
(ii) Planted trees and tree residue from actively managed tree plantations on non-federal 10 land cleared at any time prior to December 19, 2007, including land belonging to an Indian tribe or an Indian individual, that is held in trust by the United States or subject to a restriction against alienation imposed by the United States.
(iii) Animal waste material and animal byproducts.
(iv) Slash and pre-commercial thinnings that are from non-federal 10 forestlands, including forestlands belonging to an Indian tribe or an Indian individual, that are held in trust by the United States or subject to a restriction against alienation imposed by the United States, but not forests or forestlands that are ecological communities with a global or State ranking of critically imperiled, imperiled, or rare pursuant to a State Natural Heritage Program, old growth forest, or late successional forest.
(v) Biomass obtained from the immediate vicinity of buildings and other areas regularly occupied by people, or of public infrastructure, at risk from wildfire.
(vi) Algae.
(vii) Separated yard waste or food waste, including recycled cooking and trap grease.
(J) Renewable fuel
The term “renewable fuel” means fuel that is produced from renewable biomass and that is used to replace or reduce the quantity of fossil fuel present in a transportation fuel.
(K) Small refinery
The term “small refinery” means a refinery for which the average aggregate daily crude oil throughput for a calendar year (as determined by dividing the aggregate throughput for the calendar year by the number of days in the calendar year) does not exceed 75,000 barrels.
(L) Transportation fuel
The term “transportation fuel” means fuel for use in motor vehicles, motor vehicle engines, nonroad vehicles, or nonroad engines (except for ocean-going vessels).
(2) Renewable fuel program
(A) Regulations
(i) In general
Not later than 1 year after August 8, 2005, the Administrator shall promulgate regulations to ensure that gasoline sold or introduced into commerce in the United States (except in noncontiguous States or territories), on an annual average basis, contains the applicable volume of renewable fuel determined in accordance with subparagraph (B). Not later than 1 year after December 19, 2007, the Administrator shall revise the regulations under this paragraph to ensure that transportation fuel sold or introduced into commerce in the United States (except in noncontiguous States or territories), on an annual average basis, contains at least the applicable volume of renewable fuel, advanced biofuel, cellulosic biofuel, and biomass-based diesel, determined in accordance with subparagraph (B) and, in the case of any such renewable fuel produced from new facilities that commence construction after December 19, 2007, achieves at least a 20 percent reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions.
(ii) Noncontiguous State opt-in
(I) In general
On the petition of a noncontiguous State or territory, the Administrator may allow the renewable fuel program established under this subsection to apply in the noncontiguous State or territory at the same time or any time after the Administrator promulgates regulations under this subparagraph.
(II) Other actions
In carrying out this clause, the Administrator may-
(aa) issue or revise regulations under this paragraph;
(bb) establish applicable percentages under paragraph (3);
(cc) provide for the generation of credits under paragraph (5); and
(dd) take such other actions as are necessary to allow for the application of the renewable fuels program in a noncontiguous State or territory.
(iii) Provisions of regulations
Regardless of the date of promulgation, the regulations promulgated under clause (i)-
(I) shall contain compliance provisions applicable to refineries, blenders, distributors, and importers, as appropriate, to ensure that the requirements of this paragraph are met; but
(II) shall not-
(aa) restrict geographic areas in which renewable fuel may be used; or
(bb) impose any per-gallon obligation for the use of renewable fuel.
(iv) Requirement in case of failure to promulgate regulations
If the Administrator does not promulgate regulations under clause (i), the percentage of renewable fuel in gasoline sold or dispensed to consumers in the United States, on a volume basis, shall be 2.78 percent for calendar year 2006.
(B) Applicable volumes
(i) Calendar years after 2005
(I) Renewable fuel
For the purpose of subparagraph (A), the applicable volume of renewable fuel for the calendar years 2006 through 2022 shall be determined in accordance with the following table:
Calendar year: Applicable volume of renewable fuel
(in billions of gallons):
2006 4.0
2007 4.7
2008 9.0
2009 11.1
2010 12.95
2011 13.95
2012 15.2
2013 16.55
2014 18.15
2015 20.5
2016 22.25
2017 24.0
2018 26.0
2019 28.0
2020 30.0
2021 33.0
2022 36.0
(II) Advanced biofuel
For the purpose of subparagraph (A), of the volume of renewable fuel required under subclause (I), the applicable volume of advanced biofuel for the calendar years 2009 through 2022 shall be determined in accordance with the following table:
Calendar year: Applicable volume of advanced biofuel
(in billions of gallons):
2009 0.6
2010 0.95
2011 1.35
2012 2.0
2013 2.75
2014 3.75
2015 5.5
2016 7.25
2017 9.0
2018 11.0
2019 13.0
2020 15.0
2021 18.0
2022 21.0
(III) Cellulosic biofuel
For the purpose of subparagraph (A), of the volume of advanced biofuel required under subclause (II), the applicable volume of cellulosic biofuel for the calendar years 2010 through 2022 shall be determined in accordance with the following table:
Calendar year: Applicable volume of cellulosic biofuel
(in billions of gallons):
2010 0.1
2011 0.25
2012 0.5
2013 1.0
2014 1.75
2015 3.0
2016 4.25
2017 5.5
2018 7.0
2019 8.5
2020 10.5
2021 13.5
2022 16.0
(IV) Biomass-based diesel
For the purpose of subparagraph (A), of the volume of advanced biofuel required under subclause (II), the applicable volume of biomass-based diesel for the calendar years 2009 through 2012 shall be determined in accordance with the following table:
Calendar year: Applicable volume of biomass-based diesel (in billions
of gallons):
2009 0.5
2010 0.65
2011 0.80
2012 1.0
(ii) Other calendar years
For the purposes of subparagraph (A), the applicable volumes of each fuel specified in the tables in clause (i) for calendar years after the calendar years specified in the tables shall be determined by the Administrator, in coordination with the Secretary of Energy and the Secretary of Agriculture, based on a review of the implementation of the program during calendar years specified in the tables, and an analysis of-
(I) the impact of the production and use of renewable fuels on the environment, including on air quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water supply;
(II) the impact of renewable fuels on the energy security of the United States;
(III) the expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel and biomass-based diesel);
(IV) the impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to deliver and use renewable fuel;
(V) the impact of the use of renewable fuels on the cost to consumers of transportation fuel and on the cost to transport goods; and
(VI) the impact of the use of renewable fuels on other factors, including job creation, the price and supply of agricultural commodities, rural economic development, and food prices.
The Administrator shall promulgate rules establishing the applicable volumes under this clause no later than 14 months before the first year for which such applicable volume will apply.
(iii) Applicable volume of advanced biofuel
For the purpose of making the determinations in clause (ii), for each calendar year, the applicable volume of advanced biofuel shall be at least the same percentage of the applicable volume of renewable fuel as in calendar year 2022.
(iv) Applicable volume of cellulosic biofuel
For the purpose of making the determinations in clause (ii), for each calendar year, the applicable volume of cellulosic biofuel established by the Administrator shall be based on the assumption that the Administrator will not need to issue a waiver for such years under paragraph (7)(D).
(v) Minimum applicable volume of biomass-based diesel
For the purpose of making the determinations in clause (ii), the applicable volume of biomass-based diesel shall not be less than the applicable volume listed in clause (i)(IV) for calendar year 2012.
(3) Applicable percentages
(A) Provision of estimate of volumes of gasoline sales
Not later than October 31 of each of calendar years 2005 through 2021, the Administrator of the Energy Information Administration shall provide to the Administrator of the Environmental Protection Agency an estimate, with respect to the following calendar year, of the volumes of transportation fuel, biomass-based diesel, and cellulosic biofuel projected to be sold or introduced into commerce in the United States.
(B) Determination of applicable percentages
(i) In general
Not later than November 30 of each of calendar years 2005 through 2021, based on the estimate provided under subparagraph (A), the Administrator of the Environmental Protection Agency shall determine and publish in the Federal Register, with respect to the following calendar year, the renewable fuel obligation that ensures that the requirements of paragraph (2) are met.
(ii) Required elements
The renewable fuel obligation determined for a calendar year under clause (i) shall-
(I) be applicable to refineries, blenders, and importers, as appropriate;
(II) be expressed in terms of a volume percentage of transportation fuel sold or introduced into commerce in the United States; and
(III) subject to subparagraph (C)(i), consist of a single applicable percentage that applies to all categories of persons specified in subclause (I).
(C) Adjustments
In determining the applicable percentage for a calendar year, the Administrator shall make adjustments-
(i) to prevent the imposition of redundant obligations on any person specified in subparagraph (B)(ii)(I); and
(ii) to account for the use of renewable fuel during the previous calendar year by small refineries that are exempt under paragraph (9).
(4) Modification of greenhouse gas reduction percentages
(A) In general
The Administrator may, in the regulations under the last sentence of paragraph (2)(A)(i), adjust the 20 percent, 50 percent, and 60 percent reductions in lifecycle greenhouse gas emissions specified in paragraphs (2)(A)(i) (relating to renewable fuel), (1)(D) (relating to biomass-based diesel), (1)(B)(i) (relating to advanced biofuel), and (1)(E) (relating to cellulosic biofuel) to a lower percentage. For the 50 and 60 percent reductions, the Administrator may make such an adjustment only if he determines that generally such reduction is not commercially feasible for fuels made using a variety of feedstocks, technologies, and processes to meet the applicable reduction.
(B) Amount of adjustment
In promulgating regulations under this paragraph, the specified 50 percent reduction in greenhouse gas emissions from advanced biofuel and in biomass-based diesel may not be reduced below 40 percent. The specified 20 percent reduction in greenhouse gas emissions from renewable fuel may not be reduced below 10 percent, and the specified 60 percent reduction in greenhouse gas emissions from cellulosic biofuel may not be reduced below 50 percent.
(C) Adjusted reduction levels
An adjustment under this paragraph to a percent less than the specified 20 percent greenhouse gas reduction for renewable fuel shall be the minimum possible adjustment, and the adjusted greenhouse gas reduction shall be established by the Administrator at the maximum achievable level, taking cost in consideration, for natural gas fired corn-based ethanol plants, allowing for the use of a variety of technologies and processes. An adjustment in the 50 or 60 percent greenhouse gas levels shall be the minimum possible adjustment for the fuel or fuels concerned, and the adjusted greenhouse gas reduction shall be established at the maximum achievable level, taking cost in consideration, allowing for the use of a variety of feedstocks, technologies, and processes.
(D) 5-year review
Whenever the Administrator makes any adjustment under this paragraph, not later than 5 years thereafter he shall review and revise (based upon the same criteria and standards as required for the initial adjustment) the regulations establishing the adjusted level.
(E) Subsequent adjustments
After the Administrator has promulgated a final rule under the last sentence of paragraph (2)(A)(i) with respect to the method of determining lifecycle greenhouse gas emissions, except as provided in subparagraph (D), the Administrator may not adjust the percent greenhouse gas reduction levels unless he determines that there has been a significant change in the analytical methodology used for determining the lifecycle greenhouse gas emissions. If he makes such determination, he may adjust the 20, 50, or 60 percent reduction levels through rulemaking using the criteria and standards set forth in this paragraph.
(F) Limit on upward adjustments
If, under subparagraph (D) or (E), the Administrator revises a percent level adjusted as provided in subparagraphs (A), (B), and (C) to a higher percent, such higher percent may not exceed the applicable percent specified in paragraph (2)(A)(i), (1)(D), (1)(B)(i), or (1)(E).
(G) Applicability of adjustments
If the Administrator adjusts, or revises, a percent level referred to in this paragraph or makes a change in the analytical methodology used for determining the lifecycle greenhouse gas emissions, such adjustment, revision, or change (or any combination thereof) shall only apply to renewable fuel from new facilities that commence construction after the effective date of such adjustment, revision, or change.
(5) Credit program
(A) In general
The regulations promulgated under paragraph (2)(A) shall provide-
(i) for the generation of an appropriate amount of credits by any person that refines, blends, or imports gasoline that contains a quantity of renewable fuel that is greater than the quantity required under paragraph (2);
(ii) for the generation of an appropriate amount of credits for biodiesel; and
(iii) for the generation of credits by small refineries in accordance with paragraph (9)(C).
(B) Use of credits
A person that generates credits under subparagraph (A) may use the credits, or transfer all or a portion of the credits to another person, for the purpose of complying with paragraph (2).
(C) Duration of credits
A credit generated under this paragraph shall be valid to show compliance for the 12 months as of the date of generation.
(D) Inability to generate or purchase sufficient credits
The regulations promulgated under paragraph (2)(A) shall include provisions allowing any person that is unable to generate or purchase sufficient credits to meet the requirements of paragraph (2) to carry forward a renewable fuel deficit on condition that the person, in the calendar year following the year in which the renewable fuel deficit is created-
(i) achieves compliance with the renewable fuel requirement under paragraph (2); and
(ii) generates or purchases additional renewable fuel credits to offset the renewable fuel deficit of the previous year.
(E) Credits for additional renewable fuel
The Administrator may issue regulations providing: (i) for the generation of an appropriate amount of credits by any person that refines, blends, or imports additional renewable fuels specified by the Administrator; and (ii) for the use of such credits by the generator, or the transfer of all or a portion of the credits to another person, for the purpose of complying with paragraph (2).
(6) Seasonal variations in renewable fuel use
(A) Study
For each of calendar years 2006 through 2012, the Administrator of the Energy Information Administration shall conduct a study of renewable fuel blending to determine whether there are excessive seasonal variations in the use of renewable fuel.
(B) Regulation of excessive seasonal variations
If, for any calendar year, the Administrator of the Energy Information Administration, based on the study under subparagraph (A), makes the determinations specified in subparagraph (C), the Administrator of the Environmental Protection Agency shall promulgate regulations to ensure that 25 percent or more of the quantity of renewable fuel necessary to meet the requirements of paragraph (2) is used during each of the 2 periods specified in subparagraph (D) of each subsequent calendar year.
(C) Determinations
The determinations referred to in subparagraph (B) are that-
(i) less than 25 percent of the quantity of renewable fuel necessary to meet the requirements of paragraph (2) has been used during 1 of the 2 periods specified in subparagraph (D) of the calendar year;
(ii) a pattern of excessive seasonal variation described in clause (i) will continue in subsequent calendar years; and
(iii) promulgating regulations or other requirements to impose a 25 percent or more seasonal use of renewable fuels will not prevent or interfere with the attainment of national ambient air quality standards or significantly increase the price of motor fuels to the consumer.
(D) Periods
The 2 periods referred to in this paragraph are-
(i) April through September; and
(ii) January through March and October through December.
(E) Exclusion
Renewable fuel blended or consumed in calendar year 2006 in a State that has received a waiver under section 7543(b) of this title shall not be included in the study under subparagraph (A).
(F) State exemption from seasonality requirements
Notwithstanding any other provision of law, the seasonality requirement relating to renewable fuel use established by this paragraph shall not apply to any State that has received a waiver under section 7543(b) of this title or any State dependent on refineries in such State for gasoline supplies.
(7) Waivers
(A) In general
The Administrator, in consultation with the Secretary of Agriculture and the Secretary of Energy, may waive the requirements of paragraph (2) in whole or in part on petition by one or more States, by any person subject to the requirements of this subsection, or by the Administrator on his own motion by reducing the national quantity of renewable fuel required under paragraph (2)-
(i) based on a determination by the Administrator, after public notice and opportunity for comment, that implementation of the requirement would severely harm the economy or environment of a State, a region, or the United States; or
(ii) based on a determination by the Administrator, after public notice and opportunity for comment, that there is an inadequate domestic supply.
(B) Petitions for waivers
The Administrator, in consultation with the Secretary of Agriculture and the Secretary of Energy, shall approve or disapprove a petition for a waiver of the requirements of paragraph (2) within 90 days after the date on which the petition is received by the Administrator.
(C) Termination of waivers
A waiver granted under subparagraph (A) shall terminate after 1 year, but may be renewed by the Administrator after consultation with the Secretary of Agriculture and the Secretary of Energy.
(D) Cellulosic biofuel
(i) For any calendar year for which the projected volume of cellulosic biofuel production is less than the minimum applicable volume established under paragraph (2)(B), as determined by the Administrator based on the estimate provided under paragraph (3)(A), not later than November 30 of the preceding calendar year, the Administrator shall reduce the applicable volume of cellulosic biofuel required under paragraph (2)(B) to the projected volume available during that calendar year. For any calendar year in which the Administrator makes such a reduction, the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the same or a lesser volume.
(ii) Whenever the Administrator reduces the minimum cellulosic biofuel volume under this subparagraph, the Administrator shall make available for sale cellulosic biofuel credits at the higher of $0.25 per gallon or the amount by which $3.00 per gallon exceeds the average wholesale price of a gallon of gasoline in the United States. Such amounts shall be adjusted for inflation by the Administrator for years after 2008.
(iii) Eighteen months after December 19, 2007, the Administrator shall promulgate regulations to govern the issuance of credits under this subparagraph. The regulations shall set forth the method for determining the exact price of credits in the event of a waiver. The price of such credits shall not be changed more frequently than once each quarter. These regulations shall include such provisions, including limiting the credits’ uses and useful life, as the Administrator deems appropriate to assist market liquidity and transparency, to provide appropriate certainty for regulated entities and renewable fuel producers, and to limit any potential misuse of cellulosic biofuel credits to reduce the use of other renewable fuels, and for such other purposes as the Administrator determines will help achieve the goals of this subsection. The regulations shall limit the number of cellulosic biofuel credits for any calendar year to the minimum applicable volume (as reduced under this subparagraph) of cellulosic biofuel for that year.
(E) Biomass-based diesel
(i) Market evaluation
The Administrator, in consultation with the Secretary of Energy and the Secretary of Agriculture, shall periodically evaluate the impact of the biomass-based diesel requirements established under this paragraph on the price of diesel fuel.
(ii) Waiver
If the Administrator determines that there is a significant renewable feedstock disruption or other market circumstances that would make the price of biomass-based diesel fuel increase significantly, the Administrator, in consultation with the Secretary of Energy and the Secretary of Agriculture, shall issue an order to reduce, for up to a 60-day period, the quantity of biomass-based diesel required under subparagraph (A) by an appropriate quantity that does not exceed 15 percent of the applicable annual requirement for biomass-based diesel. For any calendar year in which the Administrator makes a reduction under this subparagraph, the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the same or a lesser volume.
(iii) Extensions
If the Administrator determines that the feedstock disruption or circumstances described in clause (ii) is continuing beyond the 60-day period described in clause (ii) or this clause, the Administrator, in consultation with the Secretary of Energy and the Secretary of Agriculture, may issue an order to reduce, for up to an additional 60-day period, the quantity of biomass-based diesel required under subparagraph (A) by an appropriate quantity that does not exceed an additional 15 percent of the applicable annual requirement for biomass-based diesel.
(F) Modification of applicable volumes
For any of the tables in paragraph (2)(B), if the Administrator waives-
(i) at least 20 percent of the applicable volume requirement set forth in any such table for 2 consecutive years; or
(ii) at least 50 percent of such volume requirement for a single year,
the Administrator shall promulgate a rule (within 1 year after issuing such waiver) that modifies the applicable volumes set forth in the table concerned for all years following the final year to which the waiver applies, except that no such modification in applicable volumes shall be made for any year before 2016. In promulgating such a rule, the Administrator shall comply with the processes, criteria, and standards set forth in paragraph (2)(B)(ii).
(8) Study and waiver for initial year of program
(A) In general
Not later than 180 days after August 8, 2005, the Secretary of Energy shall conduct for the Administrator a study assessing whether the renewable fuel requirement under paragraph (2) will likely result in significant adverse impacts on consumers in 2006, on a national, regional, or State basis.
(B) Required evaluations
The study shall evaluate renewable fuel-
(i) supplies and prices;
(ii) blendstock supplies; and
(iii) supply and distribution system capabilities.
(C) Recommendations by the Secretary
Based on the results of the study, the Secretary of Energy shall make specific recommendations to the Administrator concerning waiver of the requirements of paragraph (2), in whole or in part, to prevent any adverse impacts described in subparagraph (A).
(D) Waiver
(i) In general
Not later than 270 days after August 8, 2005, the Administrator shall, if and to the extent recommended by the Secretary of Energy under subparagraph (C), waive, in whole or in part, the renewable fuel requirement under paragraph (2) by reducing the national quantity of renewable fuel required under paragraph (2) in calendar year 2006.
(ii) No effect on waiver authority
Clause (i) does not limit the authority of the Administrator to waive the requirements of paragraph (2) in whole, or in part, under paragraph (7).
(9) Small refineries
(A) Temporary exemption
(i) In general
The requirements of paragraph (2) shall not apply to small refineries until calendar year 2011.
(ii) Extension of exemption
(I) Study by Secretary of Energy
Not later than December 31, 2008, the Secretary of Energy shall conduct for the Administrator a study to determine whether compliance with the requirements of paragraph (2) would impose a disproportionate economic hardship on small refineries.
(II) Extension of exemption
In the case of a small refinery that the Secretary of Energy determines under subclause (I) would be subject to a disproportionate economic hardship if required to comply with paragraph (2), the Administrator shall extend the exemption under clause (i) for the small refinery for a period of not less than 2 additional years.
(B) Petitions based on disproportionate economic hardship
(i) Extension of exemption
A small refinery may at any time petition the Administrator for an extension of the exemption under subparagraph (A) for the reason of disproportionate economic hardship.
(ii) Evaluation of petitions
In evaluating a petition under clause (i), the Administrator, in consultation with the Secretary of Energy, shall consider the findings of the study under subparagraph (A)(ii) and other economic factors.
(iii) Deadline for action on petitions
The Administrator shall act on any petition submitted by a small refinery for a hardship exemption not later than 90 days after the date of receipt of the petition.
(C) Credit program
If a small refinery notifies the Administrator that the small refinery waives the exemption under subparagraph (A), the regulations promulgated under paragraph (2)(A) shall provide for the generation of credits by the small refinery under paragraph (5) beginning in the calendar year following the date of notification.
(D) Opt-in for small refineries
A small refinery shall be subject to the requirements of paragraph (2) if the small refinery notifies the Administrator that the small refinery waives the exemption under subparagraph (A).
(10) Ethanol market concentration analysis
(A) Analysis
(i) In general
Not later than 180 days after August 8, 2005, and annually thereafter, the Federal Trade Commission shall perform a market concentration analysis of the ethanol production industry using the Herfindahl-Hirschman Index to determine whether there is sufficient competition among industry 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 Commission shall submit to Congress and the Administrator a report on the results of the market concentration analysis performed under subparagraph (A)(i).
(11) Periodic reviews
To allow for the appropriate adjustment of the requirements described in subparagraph (B) of paragraph (2), the Administrator shall conduct periodic reviews of-
(A) existing technologies;
(B) the feasibility of achieving compliance with the requirements; and
(C) the impacts of the requirements described in subsection (a)(2) 11 on each individual and entity described in paragraph (2).
(12) Effect on other provisions
Nothing in this subsection, or regulations issued pursuant to this subsection, shall affect or be construed to affect the regulatory status of carbon dioxide or any other greenhouse gas, or to expand or limit regulatory authority regarding carbon dioxide or any other greenhouse gas, for purposes of other provisions (including section 7475) of this chapter. The previous sentence shall not affect implementation and enforcement of this subsection.
[2]42 USC 7545: Regulation of fuels