12820 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices

Issued in Washington, DC on March 12,

1997.

Dan W. Reicher,

Chief of Staff, Department of Energy.

[FR Doc. 97–6780 Filed 3–17–97; 8:45 am]

BILLING CODE 6450–01–P

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.

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)
Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices 12821

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 prenotice 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]

BILLING CODE 6450–01–P

Federal Energy Regulatory

Commission

[Docket No. TM97–10–23–000]

Eastern Shore Natural Gas Company;

Notice of Proposed Changes in FERC

Gas Tariff

March 12, 1997.

Take notice that on March 7, 1997,

Eastern Shore Natural Gas Company

(ESNG) tendered for filing as part of its

FERC Gas Tariff, First Revised Volume

No. 1, certain revised tariff sheet in the

above captioned docket, with a

proposed effective date of April 1, 1997.

ESNG states that the purpose of this

instant filing is to ‘‘track’’

Transcontinental Gas Pipe Line

Corporation’s (Transco) revised fuel

retention percentages for injecting gas

into storages (see Transco’s Seventh

Revised Sheet No. 29) proposed to be

effective April 1, 1997.

ESNG states that copies of the filing

have been served upon its jurisdictional

customers and interested State

Commissions.

Any person desiring to be heard or to

protest said filing should file a motion

to intervene or protest with the Federal

Energy Regulatory Commission, 888

First Street, N.E., Washington D.C.

20426, in accordance with Rule 211 and

Rule 214 of the Commission’s Rules of

Practice and Procedure (18 CFR 385.211

and 385.214). All such motions or

protests must be filed in accordance

with Section 154.210 of the

Commission’s Regulations. Protests will

be considered by the Commission in

determining the appropriate action to be

taken, but will not serve to make

protestants parties to the proceeding.

Any person wishing to become a party

must file a motion to intervene. Copies

of this filing are on file with the