730 Federal Register / Vol. 66, No. 3 / Thursday, January 4, 2001 / Rules and Regulations

date of the calendar call for that trial session,

the offer delivered on May 31st was E’s last

qualified offer. The August 31st offer is not

a qualified offer for purposes of this rule.

Consequently, E is not a prevailing party

under the qualified offer rule. Therefore, E

must satisfy the full requirements of section

7430(c)(4)(A) to qualify for any award of

reasonable administrative and litigation

costs.

Example 10. When a qualified offer can be

made and to whom it must be made. During

the examination of Taxpayer F’s return, the

Internal Revenue Service issues a notice of

deficiency without having first issued a 30-

day letter. After receiving the notice of

deficiency F timely petitions the Tax Court.

The next day F mails an offer to the office

that issued the notice of deficiency, which

offer satisfies the requirements of paragraphs

(c)(3), (4), (5) and (6) of this section. This is

the only written offer made by F during the

administrative or court proceeding, and by its

terms it is to remain open for a period in

excess of 90 days after the date of mailing to

the office issuing the notice of deficiency.

The office that issued the notice of deficiency

transmitted the offer to the field attorney

with jurisdiction over the Tax Court case.

After answering the case, the field attorney

refers the case to Appeals pursuant to Rev.

Proc. 87–24 (1987–1 C.B. 720). After careful

consideration, Appeals rejects the offer and

holds a conference with F where some

adjustments are settled. The remainder of the

adjustments are tried in the Tax Court and

F’s liability resulting from the Tax Court’s

determinations, when added to F’s liability

resulting from the settled adjustments, is less

than F’s liability would have been under the

offer rejected by Appeals. Because the Tax

Court case had not yet been answered when

the offer was sent, F properly mailed the offer

to the office that issued the notice of

deficiency. Thus, F’s offer satisfied the

requirements of paragraph (c)(2) of this

section. Furthermore, even though F did not

receive a 30-day letter, F’s offer was made

after the beginning of the qualified offer

period, satisfying the requirements of

paragraph (c)(7) of this section, because the

issuance of the statutory notice provided F

with notice of the Internal Revenue Service’s

determination of a deficiency, and the

docketing of the case provided F with an

opportunity for administrative review in the

Internal Revenue Service Office of Appeals

under Rev. Proc. 87–24 (1987–1 C.B. 720).

Because F’s offer satisfied all of the

requirements of paragraph (c) of this section,

the offer was a qualified offer and F is a

prevailing party.

Example 11. Last qualified offer. Assume

the same facts as in Example 10 except that

at the Appeals conference F makes a new

qualified offer concerning the remaining

issues. Because this subsequent qualified

offer is closer in time to the end of the

qualified offer period than the offer made one

day after the petition was filed, the

subsequent offer would be the last qualified

offer made by F and it is F’s liability under

this offer which would be compared to F’s

liability under the judgment to determine

whether F was a prevailing party under the

qualified offer rule.

Example 12. Substitution of parties

permitted under last qualified offer. Taxpayer

G receives a 30-day letter and participates in

a conference with the Office of Appeals but

no agreement is reached. Subsequently, G

receives a notice of deficiency and petitions

the Tax Court. Upon receiving the Internal

Revenue Service’s answer to the petition, G

sends a qualified offer to the field attorney

that signed the answer, by United States

mail. The qualified offer stated that it would

remain open for more than 90 days. Thirty

days after making the offer, G dies and, on

motion under Rule 63(a) of the Tax Court’s

Rules of Practice and Procedure by G’s

personal representative, H is substituted for

G as a party in the Tax Court proceeding. H

makes no qualified offers to settle the case

and the case proceeds to trial, with the Tax

Court issuing an opinion partially in favor of

H. Even though H was not a party when the

qualified offer was made, that offer

constitutes a qualified offer because by its

terms, when made, it was to remain open

until at least the earlier of the date it is

rejected, the date of trial, or 90 days. If the

liability of H under that last qualified offer,

as determined under paragraph (b)(2) of this

section, equals or exceeds the liability under

the judgment of the Tax Court, as determined

under paragraph (b)(3) of this section, H will

be a prevailing party for purposes of an

award of reasonable litigation costs under

section 7430.

(f) Effective date. This section is

applicable with respect to qualified

offers made in administrative or court

proceedings described in section 7430

after January 3, 2001 and before January

5, 2004.

Robert E. Wenzel,

Deputy Commissioner of Internal Revenue.

Approved: December 6, 2000.

Jonathan Talisman,

Acting Assistant Secretary of the Treasury.

[FR Doc. 01–198 Filed 1–3–01; 8:45 am]

BILLING CODE 4830–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[AZ 004–0033; FRL–6896–8]

Revisions to the Arizona State

Implementation Plan, Maricopa County

Environmental Services Department

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing a limited

approval and limited disapproval of a

revision to the Maricopa County

Environmental Services Department

(MCESD) portion of the Arizona State

Implementation Plan (SIP) concerning

particulate matter (PM–10) emissions

from open outdoor fires. Under

authority of the Clean Air Act as

amended in 1990 (CAA or the Act), this

action simultaneously approves local

rules that regulate these emission

sources and directs Arizona State to

correct rule deficiencies. EPA is also

finalizing a limited approval and a full

approval of revisions to the MCESD

portion of the Arizona SIP concerning

PM–10 emissions from abrasive blasting

and non-metallic mineral mining and

processing, respectively. The limited

approval notifies Arizona State that

there are rule deficiencies. These

actions were proposed in the Federal

Register on July 11, 2000.

EFFECTIVE DATE: This rule is effective on

February 5, 2001.

ADDRESSES: You can inspect copies of

the administrative record for this action

at EPA’s Region IX office during normal

business hours. You can inspect copies

of the submitted rule revisions at the

following locations:

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105.

Environmental Protection Agency, Air

Docket (6102), Ariel Rios Building,

1200 Pennsylvania Avenue, NW.,

Washington DC 20460.

Arizona Department of Environmental

Quality, 3033 North Central Avenue,

Phoenix, AZ 85012.

Maricopa County Environmental

Services Department, Air Quality

Division, 1001 North Central Avenue,

Suite 201, Phoenix, AZ 85004.

FOR FURTHER INFORMATION CONTACT: Al

Petersen, Rulemaking Office (AIR–4),

Air Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105, Telephone: (415) 744–1135.

SUPPLEMENTARY INFORMATION:

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA.

I. Proposed Action

On July 11, 2000 (65 FR 42649), EPA

proposed a limited approval and limited

disapproval of the following rule that

was submitted for incorporation into the

Arizona SIP.

Federal Register / Vol. 66, No. 3 / Thursday, January 4, 2001 / Rules and Regulations 731

Local agency Rule No. Rule title Adopted Submitted

MCESD ................................................................. 314 Open Outdoor Fires ............................................. 07/18/88 01/04/90

We proposed a limited approval

because we determined that this rule

improves the SIP and is largely

consistent with the relevant CAA

requirements. We simultaneously

proposed a limited disapproval because

some rule provisions conflict with

section 110 and part D of the Act. These

provisions include the following:

• Dangerous materials in paragraph

302.2 not defined.

• Control Officer discretion in

paragraphs 302.3 and 302.5.

On July 11, 2000, EPA also proposed

a limited approval of the following rule

that was submitted for incorporation

into the Arizona SIP.

Local agency Rule No. Rule title Adopted Submitted

MCESD ................................................................. 312 Abrasive Blasting .................................................. 07/13/88 01/04/90

We proposed a limited approval

because we determined that this rule

improves the SIP and is largely

consistent with the relevant CAA

requirements. The approval is limited,

because some rule provisions conflict

with section 110 of the Act, but there is

no disapproval. These provisions

include the following:

• Control Officer discretion in

paragraphs 302.4.

On July 11, 2000, EPA also proposed

a full approval of the following rule that

was submitted for incorporation into the

Arizona SIP.

Local agency Rule No. Rule title Adopted Submitted

MCESD ................................................................. 316 Nonmetallic Mineral Mining and Processing ........ 04/21/99 08/04/99

The rule meets all of the requirements

of the Act.

Our proposed action contains more

information on the rules and our

evaluation.

II. Public Comments and EPA

Responses

EPA’s proposed action provided a 30-

day public comment period. During this

period, we did not receive any

comments.

III. EPA Action

As authorized in sections 110(k)(3)

and 301(a) of the Act, EPA is finalizing

a limited approval of Rule 314. This

action incorporates the submitted rule

into the Arizona SIP, including those

provisions identified as deficient. As

authorized under section 110(k)(3), EPA

is simultaneously finalizing a limited

disapproval of the rule. As a result,

sanctions will be imposed unless EPA

approves subsequent SIP revisions that

correct the rule deficiencies within 18

months of the effective date of this

action. These sanctions will be imposed

under section 179 of the Act as

described in 59 FR 39832 (August 4,

1994). In addition, EPA must

promulgate a federal implementation

plan (FIP) under section 110(c) unless

we approve subsequent SIP revisions

that correct the rule deficiencies within

24 months. Note that the submitted rule

has been adopted by the MCESD, and

EPA’s final limited disapproval does not

prevent the local agency from enforcing

it.

As authorized in sections 110(k)(3)

and 301(a) of the Act, EPA is finalizing

a limited approval of Rule 312. This

action incorporates the submitted rule

into the Arizona SIP, including those

provisions identified as deficient.

Sanctions and FIP requirements are not

triggered by this action.

As authorized in sections 110(k)(3)

and 301(a) of the Act, EPA is finalizing

a full approval of Rule 316.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order (E.O.)

12866, entitled ‘‘Regulatory Planning

and Review.’’

B. Executive Order 13045

Executive Order 13045, entitled

Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997),

applies to any rule that: (1) Is

determined to be ‘‘economically

significant’’ as defined under E.O.

12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to E.O. 13045

because it does not involve decisions

intended to mitigate environmental

health or safety risks.

C. Executive Order 13084

Under Executive Order 13084,

Consultation and Coordination with

Indian Tribal Governments, EPA may

not issue a regulation that is not

required by statute, that significantly

affects or uniquely affects the

communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments. If the mandate is

unfunded, EPA must provide to OMB,

in a separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, E.O. 13084

requires EPA to develop an effective

process permitting elected and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

732 Federal Register / Vol. 66, No. 3 / Thursday, January 4, 2001 / Rules and Regulations

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. Accordingly,

the requirements of section 3(b) of E.O.

13084 do not apply to this rule.

D. Executive Order 13132

Executive Order 13132, entitled

Federalism (64 FR 43255, August 10,

1999) revokes and replaces Executive

Orders 12612, Federalism and 12875,

Enhancing the Intergovernmental

Partnership. E.O. 13132 requires EPA to

develop an accountable process to

ensure ‘‘meaningful and timely input by

State and local officials in the

development of regulatory policies that

have federalism implications.’’ ‘‘Policies

that have federalism implications’’ is

defined in the Executive Order to

include regulations that have

‘‘substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government.’’ Under E.O.

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

E.O. 13132, because it merely acts on a

state rule implementing a federal

standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This final rule will not have a

significant impact on a substantial

number of small entities because SIP

approvals under section 110 and

subchapter I, part D of the Clean Air Act

do not create any new requirements but

simply act on requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not create any new requirements, I

certify that this action will not have a

significant economic impact on a

substantial number of small entities.

EPA’s disapproval of the state request

under section 110 and subchapter I, part

D of the Clean Air Act does not affect

any existing requirements applicable to

small entities. Any pre-existing federal

requirements remain in place after this

disapproval. Federal disapproval of the

state submittal does not affect state

enforceability. Moreover, EPA’s

disapproval of the submittal does not

impose any new Federal requirements.

Therefore, I certify that this action will

not have a significant economic impact

on a substantial number of small

entities.

Moreover, due to the nature of the

Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of state action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action acts

on pre-existing requirements under

State or local law, and imposes no new

requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

G. National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use ‘‘voluntary

consensus standards’’ (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

EPA believes that VCS are

inapplicable to today’s action because it

does not require the public to perform

activities conducive to the use of VCS.

H. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This rule is not a ‘‘major’’ rule as

defined by 5 U.S.C. 804(2).

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by March 5, 2001.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

Federal Register / Vol. 66, No. 3 / Thursday, January 4, 2001 / Rules and Regulations 733

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Particulate matter, Reporting and

recordkeeping requirements.

Dated: October 4, 2000.

Felicia Marcus,

Regional Administrator, Region IX.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart F—California

2. Section 52.120 is amended by

adding paragraphs (c)(67)(i)(D) and

(c)(94)(i)(D) to read as follows:

§ 52.120 Identification of plan.

* * * * *

(c) * * *

(67) * * *

(i) * * *

(D) Rules 312 and 314, adopted on

July 13, 1998.

* * * * *

(94) * * *

(i) * * *

(D) Rule 316, adopted on April 21,

1999.

* * * * *

[FR Doc. 01–117 Filed 1–3–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 271

[FRL–6925–1]

Indiana: Final Authorization of State

Hazardous Waste Management

Program Revision

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is granting Indiana

final authorization of revisions to their

hazardous waste program under the

Resource Conservation and Recovery

Act (RCRA). The Agency published a

proposed rule on July 26, 2000 at 65 FR

45955 and provided for public

comment. The public comment period

ended on August 25, 2000. We received

one comment, addressed below. No

further opportunity for comment will be

provided. EPA has determined that

Indiana’s revisions satisfy all the

requirements needed to qualify for final

authorization, and is authorizing the

State’s changes through this final action.

DATES: This final authorization will

become effective on January 4, 2001.

ADDRESSES: You can view and copy

Indiana’s application from 9 am to 4 pm

at the following addresses: Indiana

Department of Environmental

Management, 100 North Senate,

Indianapolis, Indiana, (mailing address

P.O. Box 6015, Indianapolis, Indiana

46206) contact Lynn West (317) 232–

3593, and EPA Region 5, contact Gary

Westefer at the following address.

FOR FURTHER INFORMATION CONTACT: Gary

Westefer, Indiana Regulatory Specialist,

U.S. EPA Region 5, DM–7J, 77 West

Jackson Boulevard, Chicago, Illinois

60604, (312) 886–7450.

SUPPLEMENTARY INFORMATION: On July

26, 2000, U.S. EPA published an

immediate final rule granting Indiana

authorization for changes to its Resource

Conservation and Recovery Act

program, listed in section E of that

notice, which was subject to public

comment. Subsequently we received

one adverse comment, and therefore

published a withdrawal of the

immediate final rule on October 23,

2000. After reviewing the adverse

comment, we hereby determine that

Indiana’s hazardous waste program

revisions satisfy all of the requirements

necessary to qualify for final

authorization.

A. Why Are Revisions to State

Programs Necessary?

States which have received final

authorization from EPA under RCRA

section 3006(b), 42 U.S.C. 6926(b), must

maintain a hazardous waste program

that is equivalent to, consistent with,

and no less stringent than the Federal

program. As the Federal program

changes, States must change their

programs and ask EPA to authorize the

changes. Changes to State programs may

be necessary when Federal or State

statutory or regulatory authority is

modified or when certain other changes

occur. Most commonly, States must

change their programs because of

changes to EPA’s regulations in 40 Code

of Federal Regulations (CFR) parts 124,

260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in

This Rule?

We conclude that Indiana’s

application to revise its authorized

program meets all of the statutory and

regulatory requirements established by

RCRA. Therefore, we grant Indiana

Final authorization to operate its

hazardous waste program with the

changes described in the authorization

application. Indiana has responsibility

for permitting Treatment, Storage, and

Disposal Facilities (TSDFs) within its

borders and for carrying out the aspects

of the RCRA program described in its

revised program application, subject to

the limitations of the Hazardous and

Solid Waste Amendments of 1984

(HSWA). New federal requirements and

prohibitions imposed by Federal

regulations that EPA promulgates under

the authority of HSWA take effect in

authorized States before EPA authorizes

the State for these requirements. Thus,

EPA will implement those requirements

and prohibitions in Indiana, including

issuing permits, until EPA authorizes

the State for these requirements and

prohibitions.

C. What Is the Effect of Today’s

Authorization Decision?

The effect of this decision is that a

facility in Indiana subject to RCRA will

now have to comply with the authorized

State requirements instead of the

equivalent federal requirements. Indiana

has enforcement responsibilities under

its state hazardous waste program for

violations of such program, but EPA

retains its authority under RCRA

sections 3007, 3008, 3013, and 7003,

which include, among others, authority

to:

• Conduct inspections, and require

monitoring, tests, analyses or reports;

• Enforce RCRA requirements and

suspend or revoke permits;

• Take enforcement actions regardless

of whether the State has taken its own

actions.

This action does not impose

additional requirements on the

regulated community because the

regulations EPA is authorizing by

today’s action are already effective, and

are not changed by today’s action.

D. Proposed Rule

On July 26, 2000 (65 FR 45955) EPA

published a proposed rule. In that rule

we proposed granting authorization of

changes to Indiana’s hazardous waste

program and opened our decision to

public comment. The Agency received

one comment that stated that granting

additional regulatory powers to the

State of Indiana could not be supported.

The comment criticized Indiana’s

handling of Clean Water Act and Clean

Air Act matters, however. It did not cite

any specific RCRA issues, or establish a

basis for withholding authorization of a

RCRA revision. U.S. EPA annually

reviews the RCRA program at which