[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Notices]
[Pages 2503-2505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1198]



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DEPARTMENT OF ENERGY
Office of General Counsel


Unfunded Mandates Reform Act; Intergovernmental Consultation

AGENCY: Department of Energy.

ACTION: Notice of proposed statement of policy.

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SUMMARY: The Department of Energy (DOE) is publishing for public 
comment a proposed statement of policy on intergovernmental 
consultation under the Unfunded Mandates Reform Act of 1995. DOE's 
proposed policy reflects the guidelines and instructions that the 
Director of the Office of Management and Budget (OMB) provided to each 
agency to develop, with input from State, local, and tribal officials, 
an intergovernmental consultation process with regard to significant 
intergovernmental mandates contained in a notice of proposed 
rulemaking.

DATES: Comments on this proposed statement of policy are due on or 
before March 26, 1996.

ADDRESSES: Comments may be submitted to the Office of the Assistant 
General Counsel for Regulatory Law (GC-74), U.S. Department of Energy, 
1000 Independence Avenue, S.W., Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT: Steve Duarte, Office of the Assistant 
General Counsel for Regulatory Law, U.S. Department of Energy, 1000 
Independence Avenue, S.W., Washington, D.C. 20585, (202) 586-9507.

SUPPLEMENTARY INFORMATION: The President signed the Unfunded Mandates 
Reform Act of 1995 (the Act) into law as Public Law 104-4 on March 22, 
1995. Section 204(a) of the Act requires each agency to develop, to the 
extent permitted by law, an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments in the development of a regulatory proposal containing a 
proposed ``significant intergovernmental mandate'' that is not a 
requirement specifically set forth in law. 2 U.S.C. 1531, 1534(a). A 
``significant intergovernmental mandate'' under the Act is any 
provision in a Federal agency regulation that: (1) Would impose an 
enforceable duty upon State, local, or tribal governments (except as a 
condition of Federal assistance); and (2) may result in the expenditure 
by State, local, and tribal governments, in the aggregate, of $100 
million (adjusted annually for inflation) in any one year. See 2 U.S.C. 
658(5)(A)(i), 1532(a).
    Section 204(b) of the Act excepts intergovernmental communications 
in certain circumstances from the requirements of the Federal Advisory 
Committee Act. 5 U.S.C. App. Those circumstances involve meetings: (1) 
Exclusively between Federal officials and State, local, or tribal 
elected officials or their designees; and (2) solely for the purposes 
of exchanging views, information, or advice relating to Federal 
programs established pursuant to a statute that explicitly or 
inherently provides for sharing intergovernmental responsibilities or 
administration. 2 U.S.C. 1534(b).
    Section 204(c) of the Act requires the President to issue 
guidelines and instructions for implementing section 204 (a) and (b). 2 
U.S.C. 1534(c). He delegated this authority to the Director of OMB, who 
published guidelines and instructions on September 29, 1995. 60 FR 
50651.
    Paragraph I of the OMB guidelines and instructions provides for 
each agency to develop, in consultation with State, local, and tribal 
governments, the intergovernmental consultation process under section 
204(a) of the Act. Paragraph I further calls for agencies to develop 
the process by making a proposal for comment by State, local, and 
tribal governments. Accordingly, DOE is sending copies of today's 
proposed statement of policy to a list of elected State and tribal 
officials and of associations representing State, local, and tribal 
governments compiled by the DOE Office of Intergovernmental and 
External Affairs. To ensure that all such officials have the 
opportunity to participate and because there may be wider interest in 
DOE's process for intergovernmental consultation under the Act, DOE 
today is publishing for public comment its proposed policy regarding 
such consultation.
    Section 203 of the Act supplements section 204(a). 2 U.S.C. 1533. 
It requires that, prior to establishing regulatory requirements that 
might significantly or uniquely affect small governments, the agency 
shall have developed a plan that, among other things, provides for 
notice to potentially affected small governments, if any, and for a 
meaningful and timely opportunity to provide input in the development 
of regulatory proposals. The Act defines ``small government'' to mean 
any small governmental jurisdiction defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601(5), and any tribal government. 2 U.S.C. 
658(11).
    Both the Act and the OMB guidelines and instructions appear to 
assume that agencies must make affirmative efforts to notify State, 
local, and tribal officials in addition to publishing a notice of 
proposed rulemaking in the Federal Register. Today's proposed statement 
of policy describes the extent and content of pre-proposal notice and 
opportunity to consult.
    The proposed policy differentiates between State and tribal elected 
officials (or their designees) on the one hand and local elected 
officials (or their designees) on the other. DOE will attempt to send 
notices to the former, but the latter are so numerous that DOE proposes 
to give notice through appropriate associations who represent local 
governments and through the Federal Register.
    The Act requires agencies to estimate the dollar impact of 
prospective Federal mandates to determine whether they exceed the $100 
million threshold, and therefore warrant full compliance with the 
intergovernmental consultation and other requirements. The Act requires 
adjustment of the $100 million figure for inflation in years after 
1995, but it is silent on how to adjust for inflation. Similarly, it is 
silent on whether and how to adjust estimated future expenditures for 
the time value of money. Under the proposed policy, DOE would adjust 
for inflation using the figures provided in the Annual Report of the 
President's Council of Economic Advisers, and discount to present value 
using OMB Circular A-94 which currently provides for 7 percent as a 
discount rate for government-wide use.
    State, local and tribal officials, as well as members of the 
public, are invited to provide comment on the adequacy and 
practicability of the proposed policy.

    Issued in Washington, D.C., on January 19, 1996.
Robert R. Nordhaus,
General Counsel.

    On the basis of the foregoing, DOE proposes the following Statement 
of Policy:

Statement of Policy on the Process for Intergovernmental Consultation 
Under the Unfunded Mandates Reform Act of 1995

I. Purpose

    This Statement of Policy implements sections 203 and 204 of the 
Unfunded Mandates Reform Act of 1995 (Act), 2 U.S.C. 1533, 1534, 
consistent with the guidelines and instructions of the Director of the 
Office of Management and Budget (OMB).

II. Applicability

    This Statement of Policy applies to the development of any 
regulation (other than a regulation for a financial assistance program) 
containing a significant intergovernmental mandate under the Act. A 
significant 

[[Page 2505]]
intergovernmental mandate is a mandate that: (1) Would impose an 
enforceable duty upon State, local, or tribal governments (except as a 
condition of Federal assistance); and (2) may result in the expenditure 
by State, local, and tribal governments, in the aggregate, of $100 
million (adjusted annually for inflation) in any one year. DOE 
officials may apply this Statement of Policy selectively if there is an 
exigent need for immediate agency action that would warrant waiver of 
prior notice and opportunity for public comment under the 
Administrative Procedure Act, 5 U.S.C. 553.

III. Intergovernmental Consultation

    When to begin. As early as possible in the development of a notice 
of proposed rulemaking (for other than a financial assistance program) 
that involves an enforceable duty on State, local, or tribal 
governments, the responsible Secretarial Officer, with the concurrence 
of the General Counsel, should estimate whether the aggregate 
compliance expenditures will be in the amount of $100 million or more 
in any one year. In making such an estimate, the Secretarial Officer 
should adjust the $100 million figure in years after 1995 using the 
rate of inflation in the Annual Report of the President's Council of 
Economic Advisers and should discount estimated future expenditures to 
present value using the discount rate under OMB Circular A-94.
    Content of notice. Upon determining that a proposed regulatory 
mandate on State, local, or tribal governments may be a significant 
intergovernmental mandate, the Secretarial Officer responsible for the 
rulemaking should provide adequate notice to pertinent State, local and 
tribal officials: (1) Describing the nature and authority for the 
rulemaking; (2) explaining DOE's estimate of the resulting increase in 
their governmental expenditure level; (3) inviting them to participate 
in the development of the notice of proposed rulemaking by 
participating in meetings with DOE or by presenting their views in 
writing on the likely effects of the regulatory requirement or legally 
available policy alternatives that DOE should take into account. If the 
authorizing statute for a rule requires publication of an advance 
notice of proposed rulemaking, then these content requirements may be 
addressed in that advance notice.
    How to notify State and tribal officials. With respect to State and 
tribal governments, actual notice should be given by letter, using a 
mailing list maintained by the DOE Office of Intergovernmental and 
External Affairs that includes elected chief executives (or their 
designees), chief financial officers (or their designees), the National 
Governors Association, and the National Congress of American Indians. 
The Secretarial Officer also should provide constructive notice in the 
Federal Register.
    How to notify local officials. With respect to local governments, 
the Secretarial Officer should provide notice through the Federal 
Register and by letter to the following associations: the National 
League of Cities, the National Association of Counties, and the U.S. 
Conference of Mayors. If a significant intergovernmental mandate might 
affect local governments in a limited area of the United States, then 
the Secretarial Officer, in consultation with the Office of 
Intergovernmental and External Affairs, should give actual notice by 
letter to appropriate local officials if practicable.
    Exemption from the Federal Advisory Committee Act. Secretarial 
Officers are encouraged to meet with State, local, and tribal elected 
officials (or their designees) to exchange views, information, and 
advice concerning the implementation of intergovernmental 
responsibilities or administration. Meetings for this purpose that do 
not include other members of the public are exempt from the Federal 
Advisory Committee Act. 2 U.S.C. 1534(b).
    Small government consultation plan. If the proposed regulatory 
requirements might significantly or uniquely affect small governments, 
then the Secretarial Officer should summarize in the Supplementary 
Information section of the notice of proposed rulemaking its plan for 
intergovernmental consultation under section 203 of the Act. Unless 
impracticable, the plan should provide for actual notice by letter to 
potentially affected small governments.
    Documenting compliance. The Supplementary Information section of 
any notice of proposed and final rulemaking involving a significant 
intergovernmental mandate upon State, local, or Indian tribal 
governments should describe DOE's determinations and compliance 
activities under the Act. The Supplementary Information section of the 
notice of proposed rulemaking should describe the estimated impact of 
an intergovernmental mandate, the assumptions underlying its 
calculation, and the resulting determination of whether the rulemaking 
involves a significant intergovernmental mandate. It should discuss, as 
appropriate, cost and benefit estimates and any reasonable suggestions 
received during pre-notice intergovernmental consultations. Any 
substantive pre-notice written communications should be described in 
the Supplementary Information and made available for inspection in the 
public rulemaking file in the DOE Freedom of Information Reading Room.
    Reporting. Pursuant to the OMB guidelines and instructions, the 
Office of General Counsel, with the cooperation of the Secretarial 
Officers, will prepare the annual report to OMB on compliance with the 
intergovernmental consultation requirements of the Act (initially due 
on January 15, 1996, and annually on January 15 thereafter).

[FR Doc. 96-1198 Filed 1-25-96; 8:45 am]
BILLING CODE 6450-01-P