[Federal Register Volume 65, Number 50 (Tuesday, March 14, 2000)]
[Notices]
[Pages 13735-13736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6206]


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DEPARTMENT OF ENERGY


Office of General Counsel Federalism; Intergovernmental 
Consultation

AGENCY: Office of the General Counsel, Department of Energy.

ACTION: Notice of statement of policy.

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SUMMARY: The Department of Energy (DOE) is publishing a statement of 
policy on intergovernmental consultation in the development of 
regulations that have federalism implications. This statement of policy 
implements provisions in President Clinton's Executive Order on 
Federalism that require Federal agencies to consult with State and 
local governments in the development of regulatory policies that may 
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.

EFFECTIVE DATE: This policy is effective March 14, 2000.

FOR FURTHER INFORMATION CONTACT: Michael W. Bowers, Office of the 
Assistant General Counsel for Regulatory Law, U.S. Department of 
Energy, 1000 Independence Avenue, S.W., GC-74, Washington, D.C. 20585, 
(202) 586-2902.

SUPPLEMENTARY INFORMATION: The President issued Executive Order 13132, 
``Federalism,'' on August 4, 1999 (64 FR 43255, Aug.10, 1999). Section 
6(a) of the Order requires each covered Federal agency to have ``an 
accountable process to ensure meaningful and timely input by State and 
local officials in the development of regulatory policies that have 
federalism implications.'' The term ``State and local officials'' is 
defined in section 1(d) of the Order to mean ``elected officials of 
State and local governments or their representative national 
organizations.'' ``Regulatory policies that have federalism 
implications'' refers to actions 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.'' E.O. 13132, section 1(a).
    On October 28, 1999, the Administrator, Office of Information and 
Regulatory Affairs, within the Office of Management and Budget (OMB), 
issued to heads of executive departments and agencies guidance for 
implementing Executive Order 13132. Pursuant to section 6 of the Order, 
the Administrator requested that each agency federalism official submit 
a description of the agency's consultation process to OMB by January 
31, 2000. The General Counsel, who is the DOE federalism official, has 
submitted this statement of policy to OMB.
    The intergovernmental consultation procedures required by Executive 
Order 13132 and by the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) are similar. For that reason, DOE has modeled this statement of 
policy on its final policy statement on intergovernmental consultation 
under the Unfunded Mandates Reform Act of 1995, which DOE published on 
March 18, 1997 (62 FR 12820). This will permit DOE to use the same 
basic consultation process for development of a regulation that both 
contains a significant Federal intergovernmental mandate and has 
federalism implications.
    The intergovernmental consultation process required by Executive 
Order 13132 expands and supersedes the consultation procedures under 
Executive Order 12875, ``Enhancing the Intergovernmental Partnership'' 
(58 FR 58093, Oct. 28, 1993). E.O. 13132 section 10(b). However, 
Executive Order 13132 supplements, but does not supersede, the 
requirements in Executive Order 12372, ``Intergovernmental Review of 
Federal Programs'' (3 CFR, 1982 Comp., p. 197). E.O. 13132 section 
10(a). Executive Order 12372 directs Federal agencies, to the extent 
permitted by law, to rely on State and local processes for consultation 
with elected State and local government officials that would provide 
the non-Federal funds for, or that would be directly affected by, 
proposed Federal assistance or direct Federal development.

    Issued in Washington, D.C., on February 11, 2000.
Mary Anne Sullivan,
General Counsel.
    DOE adopts the following Statement of Policy:

[[Page 13736]]

Statement of Policy on Intergovernmental Consultation in the 
Development of Regulations That Have Federalism Implications

I. Purpose

    This Statement of Policy implements the requirement in section 6 of 
Executive Order 13132, ``Federalism,'' (64 FR 43255, Aug. 10, 1999), 
that each agency have an accountable process to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that have federalism implications. ``State and 
local officials'' means elected officials of State and local 
governments or their representative national organizations.

II. Applicability

    This Statement of Policy applies to the development of any 
regulation that has federalism implications. A regulation has 
federalism implications if it has 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.

III. Intergovernmental Consultation

    When to begin. As early as possible in the development of a notice 
of proposed rulemaking, the responsible Secretarial Officer, in 
consultation with the General Counsel and the Principal Deputy 
Assistant Secretary for Congressional and Intergovernmental Affairs, 
should determine whether a proposed regulation has federalism 
implications. Upon determining that a proposed regulation has 
federalism implications, the Secretarial Officer responsible for the 
rulemaking should provide adequate notice to pertinent State and local 
officials.
    Content of notice. The notice from the responsible Secretarial 
Officer to State and local officials should: (1) describe the nature 
and authority for the rulemaking; (2) give DOE's estimate of the 
effects on State and local governments of the regulatory options being 
considered for proposal, including whether they would impose direct 
compliance costs not funded by the Federal Government or would preempt 
State law; and (3) invite them to participate in the development of the 
regulation by participating in meetings or workshops with DOE or by 
presenting their views in writing on the likely effects of regulatory 
options being considered by DOE staff or legally available policy 
alternatives that they wish DOE to consider.
    How to notify State officials. With respect to State governments, 
the Secretarial Officer should give actual notice by letter, using a 
mailing list maintained by the DOE Office of Intergovernmental and 
External Affairs that includes elected chief executives, the National 
Governors Association, the National Conference of State Legislatures, 
and the Council of State Governments.
    How to notify local officials. With respect to local governments, 
the Secretarial Officer should give notice through the Federal Register 
and by letter to the Executive Director of the National League of 
Cities, the National Association of Counties, the U.S. Conference of 
Mayors, the International City/County Management Association, and any 
State Municipal League not represented by a national association. If a 
draft proposed regulation might have federalism implications 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 and 
the appropriate State Municipal League(s), if practicable.
    Consultation. The timing, nature, and detail of the consultation 
with State and local officials should be appropriate to the nature of 
the regulation involved. In consultation with State and local 
officials, staff in the office of the Secretarial Officer responsible 
for the rulemaking and the Office of Intergovernmental and External 
Affairs should seek comment, as appropriate, on: (1) The need for 
Federal regulation; (2) compliance costs of regulatory options DOE is 
considering for proposal; (3) legally available policy alternatives; 
and (4) ways to avoid or minimize conflict between State law and 
Federally protected interests. If a rulemaking would impose an unfunded 
mandate or preempt State law, staff in the office of the Secretarial 
Officer responsible for the rulemaking and the Office of 
Intergovernmental and External Affairs must consult, to the extent 
practicable and permitted by law, with State and local officials early 
in the process of developing a notice of proposed rulemaking. Under 
Executive Order 13132, a regulation would impose an unfunded mandate if 
it has federalism implications; would impose substantial direct 
compliance costs on State and local governments; and is not required by 
statute.
    Exemption from the Federal Advisory Committee Act. Secretarial 
Officers are encouraged to meet with State and local elected officials 
to exchange views, information, and advice concerning the 
implementation of intergovernmental responsibilities or administration. 
Section 204(b) of the Unfunded Mandates Act of 1995 (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.
    Documenting compliance. The Supplementary Information section of 
any notice of proposed and final rulemaking that has federalism 
implications should describe DOE's determinations and intergovernmental 
consultation activities under Executive Order 13132. The Supplementary 
Information section of a notice of final rulemaking must include: (1) 
in a separately identified section, a ``federalism summary impact 
statement,'' and (2) the certification of compliance required by 
section 8(a) of Executive Order 13132. The federalism summary impact 
statement must include a description of DOE's prior consultation with 
State and local officials; a summary of the nature of State and local 
officials' concerns and DOE's position supporting the need to issue the 
regulation; and a statement of the extent to which the concerns of 
State and local officials have been met. If intergovernmental 
consultations precede the notice of proposed rulemaking, the 
Supplementary Information section of the notice of proposed rulemaking 
should include a preliminary federalism summary impact statement.
[FR Doc. 00-6206 Filed 3-13-00; 8:45 am]
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