[Federal Register Volume 62, Number 52 (Tuesday, March 18, 1997)]
[Notices]
[Pages 12820-12821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6781]
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DEPARTMENT OF ENERGY
Office of General Counsel
Unfunded Mandates Reform Act; Intergovernmental Consultation
AGENCY: Office of the General Counsel, Department of Energy.
ACTION: Notice of final statement of policy.
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SUMMARY: The Department of Energy (DOE) today publishes a final
statement of policy on intergovernmental consultation under the
Unfunded Mandates Reform Act of 1995. The 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.
EFFECTIVE DATE: This policy is effective March 18, 1997.
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, DC 20585, (202) 586-9507.
SUPPLEMENTARY INFORMATION: Section 203 of the Unfunded Mandates Reform
Act of 1995 (the Act), 2 U.S.C. 1533, 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. 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). 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).
In January 1996, DOE published a notice of a proposed policy to
implement this portion of the Act and the OMB guidelines and
instructions published on September 29, 1995 (60 FR 50651) that deal
with the intergovernmental consultation process. DOE sought public
comment on the proposed policy in order to give State, local and tribal
officials, as well as members of the public, an opportunity to comment
on the policy before it was finalized. DOE received comments from one
commenter. The DOE reviewed the comments and has determined to finalize
the proposed policy with the modifications as described below.
The commenter suggested that indirect notification to local elected
officials (or their designees) through the National League of Cities,
the National Association of Counties, and the U.S. Conference of Mayors
may not provide notification to those local elected officials who are
not members of these national organizations. The commenter suggested
that DOE also notify the State Municipal Leagues. DOE has decided to
implement this suggestion in the following manner. DOE understands that
a number of the State Municipal Leagues are members of, and are
represented by, one or another of the named national organizations. DOE
will notify directly the State Municipal Leagues that are not otherwise
represented by one of the named national organizations.
The commenter suggested that, in determining if an unfunded mandate
triggers the $100 million threshold, the DOE should not discount future
costs to present value. After consulting with OMB, DOE has accepted
this suggestion.
The commenter also suggested that DOE open the consultation process
whenever a DOE rule would create an unfunded mandate, without regard
for the cost of the mandate. DOE has not accepted this suggestion
because the Act provides otherwise, and in any event, issues about a
proposed mandate could be presented during the comment period provided
in the notice of proposed rulemaking. The Act assigns to the agency the
obligation to assess the effects of Federal regulatory actions on
State, local and tribal governments. 2 U.S.C. 1531. The Act requires
that the agency permit State, local, and tribal governments to provide
input in the development of regulatory proposals when the regulatory
proposals contain significant Federal intergovernmental mandates. 2
U.S.C. 1534. If the agency finds that the unfunded mandate does not
rise to the level of a ``significant intergovernmental mandate'' under
the Act, then the consultation process is not required. However, such a
finding would not preclude a State, local, or tribal government from
commenting in a public hearing or in a meeting with agency officials on
a proposed intergovernmental mandate that is below the threshold of a
``significant intergovernmental mandate.'
Finally, the commenter suggested that DOE create a review process
whereby local government officials can petition to have DOE's threshold
determination reviewed by a ``neutral party.'' DOE has not accepted
this suggestion because the Act specifically provides for judicial
review. 2 U.S.C. 1571.
In accordance with section 801 of the Small Business Regulatory
Enforcement Act of 1996, 5 U.S.C. 801, DOE will report to Congress the
promulgation of this Statement of Policy prior to its effective date.
Issued in Washington, DC, on March 11, 1997.
Mary Anne Sullivan,
Acting General Counsel.
On the basis of the foregoing, DOE adopts 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 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)
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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 Assistant Secretary for Policy and 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 ordinarily should adjust the $100
million figure in years after 1995 using the Gross Domestic Product
deflator as contained in the Annual Report of the Counsel of Economic
Advisors which is part of the Economic Report of the President.
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 DOE
publishes an advance notice of proposed rulemaking, then these issues
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 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 National League of Cities, the National
Association of Counties, the U.S. Conference of Mayors, and any State
Municipal League not represented by a national association. 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. Section 204(b) of the Act, 2 U.S.C.
1534(b), exempts from the Federal Advisory Committee Act (5 U.S.C.
App.) meetings for this purpose that do not include other members of
the public.
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. 97-6781 Filed 3-17-97; 8:45 am]
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