[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
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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]
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