Lincoln County, Nevada; Denial of Petition for Rulemaking, 73676-73680 [E7-25299]

Download as PDF 73676 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules jlentini on PROD1PC65 with PROPOSALS are inconsistent with the findings and conclusions of this recommended decision, the requests to make such findings or to reach such conclusions are denied. One motion and a brief supporting the motion were submitted requesting that the Secretary expedite the formal rulemaking process by omitting this recommended decision and the period allowed for the filing of exceptions to AMS’ findings herein. The motion was filed on October 3, 2007, and the brief supporting the motion was filed on October 12, 2007. The Rules of Practice allow omission of a recommended decision only when the Secretary finds, on the basis of the record, due and timely execution of his functions imperatively and unavoidably require such omission. No such finding may be made in this instance. Absent from the hearing record is testimony or other evidence that would form a basis to make such a determination. Further, interested persons would have no opportunity to comment on this request to omit the recommended decision. Therefore, this motion is denied. A second motion, also filed on October 3, 2007, requested that four corrections be made to one of the exhibits presented at the hearing, although the hearing transcript and all exhibits were certified by the Administrative Law Judge on October 1, 2007. Nevertheless, AMS is granting the first three of those corrections as such corrections would make references in exhibits and testimony uniform. However, the fourth correction is denied. The requested change would make the result of the calculation in the exhibit incorrect, and it would be in conflict with testimony in the hearing transcript, which is correct. General Findings The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein. (1) The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act; (2) The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of almonds grown in the production area (California) in the same manner as, and VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 is applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order upon which a hearing has been held; (3) The marketing order, as amended, and as hereby proposed to be further amended, is limited in its application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act; (4) The marketing order, as amended, and as hereby proposed to be further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of almonds grown in the production area; and (5) All handling of almonds grown in the production area as defined in the marketing order, is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce. A 20-day comment period is provided to allow interested persons to respond to this proposal. Twenty days is deemed appropriate because these proposed changes have been widely publicized and implementation of the changes, if adopted, would be desirable to benefit the industry as soon as possible. All written exceptions timely received will be considered and a grower referendum will be conducted before any of these proposals are implemented. List of Subjects in 7 CFR Part 981 Almonds, Marketing agreements, Nuts, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR Part 981 is proposed to be amended as follows: PART 981—ALMONDS GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 981 continues to read as follows: Authority: 7 U.S.C. 601–674. 2. Amend paragraph (b) of § 981.42 by adding the following sentence before the last sentence to read as follows: § 981.42 Quality Control. * * * * * (b) * * * The Board may, with the approval of the Secretary, establish different outgoing quality requirements for different markets. * * * 3. Add a new § 981.43 to read as follows: PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 § 981.43 Marking or Labeling of Containers. The Board may, with the approval of the Secretary, establish regulations to require handlers to mark or label their containers that are used in packaging or handling of bulk almonds. For purposes of this section, container means a box, bin, bag, carton, or any other type of receptacle used in the packaging or handling of bulk almonds. Dated: December 21, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7–25162 Filed 12–27–07; 8:45 am] BILLING CODE 3410–02–P NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 [Docket No. PRM–2–13] Lincoln County, Nevada; Denial of Petition for Rulemaking Nuclear Regulatory Commission. ACTION: Denial of Petition for rulemaking. AGENCY: SUMMARY: The NRC is denying a petition for rulemaking submitted March 23, 2007, by Lincoln County, Nevada, related to its potential participation as an affected unit of local government (AULG) in the NRC proceeding concerning the Department of Energy’s proposed repository for high-level radioactive waste at Yucca Mountain, Nevada. Lincoln County desires an amendment to 10 CFR 2.314(b) to allow it and other AULGs to be represented in the proceeding by any duly authorized individual, including a non-attorney consultant. The Commission is denying the petition as unnecessary because the current regulations allow Lincoln County the representation it seeks. ADDRESSES: Publicly available documents related to this petition, including the petition for rulemaking and the NRC’s letter of denial to the petitioner, are available for public inspection or copying in the NRC Public Document Room, 11555 Rockville Pike, Rockville, Maryland. These documents are also available on the NRC’s Electronic Reading Room at https:// www.nrc.gov/reading-rm/adams.html. From this site, the public can gain entry into the NRC’s Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC’s public documents. The ADAMS accession numbers for the E:\FR\FM\28DEP1.SGM 28DEP1 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules rulemaking petition and the letter of denial sent to the petitioner are ML070930363 and ML073390550, respectively. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR reference staff at (800) 387–4209, (301) 415–4737 or by e-mail to pdr@nrc.gov. FOR FURTHER INFORMATION CONTACT: Michael A. Spencer, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001, Telephone: (301) 415– 4073. SUPPLEMENTARY INFORMATION: The Petitioner Lincoln County states that, according to the 2000 census, approximately 4,165 people, 1,540 families, and 1,010 households reside in the County. The average annual per capita income is approximately $17,000, and the primary occupations of the people of Lincoln County are cattle ranching, agriculture, government services, and small-scale mining. jlentini on PROD1PC65 with PROPOSALS Background I. The Yucca Mountain Repository and Its Relationship to Lincoln County The Nuclear Waste Policy Act of 1982, as amended (NWPA) 1 established a national program for the management and permanent disposal of high-level radioactive waste (HLW). In 1987, the NWPA was amended to direct the Department of Energy (DOE) to focus its site characterization activities only on Yucca Mountain. The NWPA provides that if the President recommends the site to Congress and this recommendation is disapproved according to sections 116 or 118 of the NWPA (42 U.S.C. 10136 and 10138), the site will be disapproved unless Congress passes a resolution of repository siting approval.2 After the President’s recommendation of Yucca Mountain as the site for the repository and the State of Nevada’s disapproval of this recommendation, Congress passed a resolution approving Yucca Mountain as the repository site.3 Because of Congress’s approval, DOE will submit an application to the NRC for a repository at Yucca Mountain, which application will be reviewed according to the NRC’s regulations in 10 CFR Part 63. In addition, a public hearing regarding the HLW repository application (HLW proceeding) will be conducted under Subparts C and J of 1 42 U.S.C. 10101 et. seq. U.S.C. 10135(c). 3 Pub. L. No. 107–200 (2002). 2 42 VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 Part 2 of the NRC’s regulations. DOE expects to submit this application in 2008. The NWPA also provides, in 42 U.S.C. 10136(c) and 10222(d), that DOE will provide grants to States and affected units of local government (AULGs) from the Nuclear Waste Fund to assist them in undertaking certain specified activities related to the Yucca Mountain repository. DOE has designated several counties as AULGs,4 and Lincoln County, which is adjacent to the county where the proposed repository would be located, states that it is an AULG that receives DOE grants from the Nuclear Waste Fund. According to Lincoln County, these grants are subject to Congressional appropriations. AULGs also have status under Commission regulations, being recognized as potential parties to the HLW proceeding.5 Although an application has yet to be submitted, NRC adjudicatory activities such as document disclosures are already underway. Prior to the docketing of DOE’s application, adjudicatory activities in the HLW proceeding related to document access, discovery, and the Licensing Support Network (LSN) are under the jurisdiction of the Pre-License Application Presiding Officer (PAPO). II. The Basis for the Petition On October 27, 2005, the PAPO issued a notice informing potential parties and interested government participants of an upcoming tour of the Yucca Mountain repository. Space for this tour was limited, however, so only representatives of potential parties or interested government participants who had filed a notice of appearance under 10 CFR 2.314(b) were permitted to join the tour. A non-attorney consultant contacted the Atomic Safety and Licensing Board Panel (ASLBP) requesting permission to join the tour as the representative of both Lincoln County and White Pine County, Nevada, but he was informed that neither county had filed a notice of appearance in the proceeding.6 White Pine County, then timely filed a notice of appearance, designating the non4 U.S. Dep’t of Energy, Office of Civilian Radioactive Waste Management, Annual Report to Congress for Fiscal Year 2002, at 23 (Sept. 2003), available at https://www.ocrwm.doe.gov/ info_library/program_docs/annualreports/02ar/ fy_2002.pdf. 5 See 10 CFR 2.1001 (definition of ‘‘potential party’’). An AULG may become a party upon submission of an admissible contention related to the application. Id. 6 United States Dep’t of Energy (High Level Waste Repository: Pre-Application Matters), No. PAPO– 00, 2005 WL 4799369, at *1 (LBP Dec. 2, 2005) (unpublished order). PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 73677 attorney consultant as its representative. A majority of the PAPO did not deem this representation proper, however, because the majority believed that government entities are limited by 10 CFR 2.314(b) to attorney representation only.7 The members of the PAPO did not provide any analysis or otherwise state the bases for their conclusions. Because of the lack of briefing and lack of unanimity on the issue, the PAPO allowed the consultant to participate in that particular trip as a matter of the PAPO’s discretion, leaving resolution of the representation issue for ‘‘another day.’’ 8 This representation issue is at the heart of the petition. Lincoln County desires the option of being represented through non-attorney ‘‘consultants or other duly authorized representatives.’’ Lincoln County states that it is a small county with few resources that is entirely dependent on DOE grants from the Nuclear Waste Fund to participate in NRC proceedings. Lincoln County further states that the grants may only be used for participation in licensing proceedings if expressly appropriated by Congress and that such appropriations have been made only since FY 2006. According to Lincoln County, the amount of funding (if any) is variable and unpredictable because it depends on an annual decision of Congress, which may change from year to year. Further, Lincoln County claims that the DOE grants, which have totaled $5.3 million for Lincoln County over the last eight years, are used for diverse purposes, such as operating its Nuclear Waste Oversight Office, conducting public information activities, and retaining expert consultants. Lincoln County, therefore, believes that it cannot afford to retain experienced counsel for the purpose of representing it on a daily basis in the HLW proceeding, which Lincoln County expects to ‘‘entail literally hundreds of days of hearings.’’ Lincoln County also claims that its District Attorney’s office will not be able to regularly participate in the HLW proceeding because the office has only one attorney, the District Attorney, who is responsible for both criminal and civil matters. At the time the petition was filed in March of this year, the representation issue had yet to be resolved by the PAPO, and still has yet to be resolved. At a case management conference only a couple of weeks prior to the filing of the rulemaking petition, the PAPO recognized that the issue remained to be decided, but thought resolution might 7 Id. 8 Id. E:\FR\FM\28DEP1.SGM 28DEP1 73678 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules await a ‘‘concrete set of facts.’’ 9 Lincoln County believes that this issue must be resolved quickly because DOE’s license application is expected in 2008, and it can come as early as six months after DOE certifies that its document collection is available on the Licensing Support Network.10 DOE certified its document collection on October 19, 2007.11 Also, the application is expected ‘‘not later than June 30, 2008.’’ 12 Lincoln County believes that it is unclear when the PAPO may deem the representation issue ripe enough to rule on it, and that the disposition of any appeal of such a ruling might not come well enough in advance of the hearings to allow Lincoln County and other AULGs to effectively plan for them. In its petition for rulemaking, Lincoln County ‘‘is requesting that the Commission directly and authoritatively clarify this issue * * * to allow AULGs sufficient time to plan their participation’’ in the HLW proceeding. III. Lincoln County’s Requested Relief Lincoln County states that it has not discovered a judicial or NRC decision squarely on point and that it is unclear whether an AULG may be represented by a non-attorney in the HLW proceeding under the current regulations. Lincoln County does believe that it is unreasonable to allow partnerships, corporations, and unincorporated associations to be represented by non-attorney members or officers, as provided by § 2.314(b), but to disallow such representation for AULGs. Lincoln County, however, wishes to have greater representation options than these private entities because County Commissioners serve voluntarily and have other jobs, while ‘‘full-time government officials and officers cannot reasonably be expected to vacate their daily public duties to the taxpayers in order to participate in NRC licensing proceedings.’’ Lincoln County requests that the following language be added to § 2.314(b): In any adjudicatory proceeding concerning an application for a license to construct a geological repository for high-level radioactive waste pursuant to the Nuclear 9 Transcript at 954–55 (March 5, 2007). 10 CFR 2.1003(a). 11 DOE’s certification came in a filing in the PAPO proceeding styled ‘‘The Department of Energy’s Certification of Compliance.’’ This certification has been challenged in the PAPO proceeding by the State of Nevada in a ‘‘Motion to Strike DOE’s October 19, 2007 LSN Recertification and to Suspend Certification Obligations of Others until DOE Validly Recertifies,’’ (Oct. 29, 2007). 12 ‘‘The Department of Energy’s Thirtieth Monthly Status Report Regarding LSN Certification and License Application Submittal,’’ (November 1, 2007). jlentini on PROD1PC65 with PROPOSALS 10 See VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 Waste Policy Act, as amended, an affected unit of local government (as designated by the Secretary of Energy pursuant to 42 U.S.C. § 10136(c)) may be represented by any duly authorized representative and/or an attorneyat-law. Analysis of the Petition Lincoln County wishes to have the option of being represented in the HLW proceeding through non-attorney ‘‘consultants or other duly authorized representatives’’ and has submitted the instant petition to achieve that result through rulemaking. If the current regulations do not proscribe such representation, however, then no relief through rulemaking is necessary. Before considering Lincoln County’s proposed modification, therefore, it must first be ascertained whether the current regulations do, in fact, pose such a bar. Resolution of this issue depends on answers to the following questions: (1) May a county be represented in an adjudication by a non-attorney? (2) If representation by a non-attorney is allowed, may any duly authorized individual, including a non-attorney consultant, represent a county? Section 2.314(b), which contains the representation provision for NRC proceedings, is the primary source for answering these questions. Also relevant, however, are the provisions in §§ 2.309(d)(2) and 2.315(c) relating to participation by a State or local government body (defined in these sections as a ‘‘county, municipality, or other subdivision’’) and other expressions of Commission policy and practice. As explained below, a local government body may be represented under the current regulations by any individual, including a non-attorney consultant, if the individual is duly authorized. For this reason, the Commission is denying the petition as unnecessary. I. A State or Local Government Body May Appear on Its Own Behalf, as Well as Be Represented by an Attorney A. States and local government bodies are ‘‘persons’’ under § 2.314(b). Representation in NRC proceedings is governed by 10 CFR 2.314(b), which provides the following: A person may appear in an adjudication on his or her own behalf or by an attorneyat-law. A partnership, corporation, or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law. A party may be represented by an attorney-at-law if the attorney is in good standing and has been admitted to practice before any Court of the United States, the District of Columbia, or the highest court of any State, territory, or possession of the United States. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 (emphasis added). In addition to representation by an attorney, § 2.314(b) expressly provides the option of self-representation for a ‘‘person,’’ and the word ‘‘person’’ is defined in § 2.4 very broadly to cover many entities, including ‘‘any State or any political subdivision of, or any political entity within a State.’’ A State or local government body, therefore, is a ‘‘person’’ under Part 2 and has the option under § 2.314(b) either to be represented by an attorney or to appear on its own behalf and be represented by one other than an attorney. The rule text, however, does not specify who may represent a government body appearing on its own behalf. This issue will be the subject of Section II of this document. B. The regulatory history of the representation provision and Commission practice favor a broad reading of ‘‘person.’’ The language in § 2.314(b) derives from two rulemakings, the first in 1962 and the second in 1980. The 1962 rulemaking was a major revision to Part 2 that substantially revised and simplified the representation provision. After the 1962 revisions, former § 2.713(a) read as follows: A person may appear in an adjudication on his own behalf or by an attorney-at-law in good standing admitted to practice before any court of the United States, the District of Columbia, or the highest court of any State, territory, or possession of the United States.13 Although the word ‘‘person’’ was not explicitly defined in the regulations at that point, § 2.4 in the same rulemaking provided that ‘‘[w]ords or phrases which are defined in the Atomic Energy Act of 1954, as amended, and in this chapter have the same meaning when used in this part.’’ 14 Section 11 of the Atomic Energy Act of 1954 (AEA) had already defined ‘‘person’’ broadly to include ‘‘any State or any political subdivision of, or any political entity within a State,’’ among other entities.15 The 1980 amendments, which moved the representation provision from § 2.713(a) to § 2.713(b), added the provision for partnerships, corporations, and unincorporated associations that is still found in current § 2.314(b). This addition was characterized in the proposed rule as ‘‘clarify[ing] who may 13 ‘‘Revision of Rules,’’ (27 FR 377, 383; Jan. 13, 1962). The representation provision was moved to its current home in § 2.314(b) during the major Part 2 revisions of 2004. See ‘‘Changes to Adjudicatory Process,’’ (69 FR 2182; Jan. 14, 2004). The original ‘‘representation’’ provision was found in § 2.704, as issued in 1956. (21 FR 804, 806; Feb. 4, 1956). 14 27 FR 377, 378. 15 42 U.S.C. 2014, Pub. L. No. 83–703, 68 Stat. 919, 922 (1954). E:\FR\FM\28DEP1.SGM 28DEP1 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules appear before NRC in a representative capacity.’’ 16 Although the proposed rule change spoke to representation of partnerships, corporations, and unincorporated associations only by members, the final rule added representation by officers. This addition was described in the final rule as ‘‘mak[ing] clear that a partnership, corporation or unincorporated association may be represented by a duly authorized officer, as well as by a member or attorney, and reflects both actual practice and the intent of the rule.’’ 17 The Commission, therefore, in issuing the 1980 amendment to the representation provision, viewed the amendment as a clarification of the older representation provision for ‘‘persons’’ and not as a substantive change or addition. The Commission also recognized that representation of certain entities by non-attorneys was occurring in Commission proceedings, but gave no indication that this practice was in any way contrary to the regulations.18 The representation rights specified in the 1980 amendment, therefore, should be seen as inherent in the concept of self-representation in former § 2.713(a), even if the former provision did not express these rights in their precise contours. ‘‘Person’’ in § 2.314(b), therefore, should be read broadly to include States and local government bodies, which would allow government bodies to appear on their own behalf through a non-attorney. jlentini on PROD1PC65 with PROPOSALS II. Any Duly Authorized Individual May Represent a State or Local Government Body As explained above, § 2.314(b) does not specify who may represent a State or local government body appearing on its own behalf. To resolve this petition, the question whether a non-attorney 16 ‘‘Changes in Rules of Practice Governing Discipline in Adjudicatory Proceedings,’’ (45 FR 3594, 3594; Jan. 18, 1980). 17 Final Rule, ‘‘Changes in Rules of Practice Governing Discipline in Adjudicatory Proceedings,’’ 45 FR 69877, 69878. 18 For examples of Commission practice prior to the 1980 amendment, see Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP–73–28, 6 AEC 666, 678–80 (1973), (specifically noting the broad AEA definition of ‘‘person’’ in concluding that representation of an organization by a non-attorney member was consonant with Commission regulations, the APA, and the AEA), aff’d, ALAB– 150, 6 AEC 811, clarification denied, ALAB–155, 6 AEC 829; and General Electric Co. (GE Test Reactor, Vallecitos Nuclear Center), LBP–79–28, 10 NRC 578, 583–84 (1979) (distinguishing representation of organizations by non-attorney members from representation of a U.S. congressman by a nonattorney by pointing out that the non-attorney organization members were ‘‘appear[ing] as the ‘person * * * on his own behalf,’ and not as a representative of that person’’). VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 consultant may serve as such a representative must also be answered. In deciding the question, the Commission has considered its policy and practice, the interests of comity, and the distinct interests that government bodies represent.19 As explained below, Commission policy and practice favor deference to State law and government choice on the question of representation. The Commission, therefore, concludes that States and local government bodies may be represented by anyone duly authorized to represent the government body in question.20 ‘‘[T]he Commission has long recognized the benefits of participation in [its] proceedings by representatives of interested states, counties, municipalities, etc.’’ 21 The Commission put this policy into practice, in part, through § 2.315(c), which allows interested States and local government bodies a special opportunity to participate in NRC hearings that is unavailable to private individuals or entities.22 A narrow reading of § 2.314(b) with respect to government bodies, however, could hinder the participation of smaller government bodies, such as Lincoln County, who lack the resources and flexibility to fully participate solely through attorneys, elected officials, or full-time government officials or officers. A narrow reading, moreover, would not produce any countervailing benefit because the Commission has no interest in telling governments which types of non-attorneys may represent them. Because Commission policy clearly favors government participation, a rule interpretation limiting such participation should be disfavored if it produces no benefit and is not required by the text of the rule. The Commission is also persuaded that it would be misguided to impose on government bodies representation choices analogous to the § 2.314(b) 19 The practice of the federal courts is not dispositive of the outcome of this question because, as opposed to Commission practice, federal courts generally forbid non-attorney representation of entities. See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 201– 02 (1993) (stating that in federal practice, corporations and other artificial entities ‘‘may appear in the federal courts only through licensed counsel’’). 20 To be clear, this response to the petition addresses only the representation of State and local government bodies, as defined in § 2.309(d)(2), and does not address the representation of any other type of entity. 21 Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Units 1 and 2), CLI–99–30, 50 NRC 333, 344 (1999). 22 Affected, Federally-recognized Indian Tribes also enjoy § 2.315(c) non-party participant rights. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 73679 representation choices for partnerships, corporations, and unincorporated associations. First, such an attempt ignores that government bodies and private entities are different creatures with different powers serving different interests, which is why they are treated differently regarding nonparty participation. Second, choosing an analogous government version of a private entity member or officer might prove difficult and result in unfairness. If government lay representation were limited to elected officials, for example, government bodies would have much less flexibility in their representation than unincorporated associations, who may be represented by anyone who joins the association. Instead of imposing representation limits on government bodies, therefore, the Commission broadly reads § 2.314(b) to allow government bodies to choose their representatives, as long as these choices comport with State law and any applicable local government charter. The Commission adopts this broad reading because it recognizes that government bodies serve the public interest and because it respects their choices regarding their own representation. This broad reading, in its deference to State law and government choice, also accords with Commission practice. For instance, in the major 2004 revisions to part 2, the new §§ 2.309(d) and 2.315(c) limited State and local government body participation to a single representative.23 According to the statement of considerations for the rule, however, ‘‘[w]here a State’s constitution provides that both the Governor and another State official or State governmental body may represent the interests of the State in a proceeding,’’ the governor and other official/body could participate as distinct parties, each with a single representative.24 Similar concern for State law and government choice was also expressed by the former Atomic Safety and Licensing Appeal Board (Appeal Board), which faced the issue whether a Congressman from New Hampshire, in addition to the Attorney General, could serve as a representative of New Hampshire participating as an interested government under former § 2.715(c).25 In deciding that only the Attorney General could represent the State, the Appeal Board rested its decision on State law because it was ‘‘persuaded 23 ‘‘Changes to Adjudicatory Process,’’ (69 FR 2182; Jan. 14, 2004). 24 Id. at 2222. 25 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB–862, 25 NRC 144 (1987). E:\FR\FM\28DEP1.SGM 28DEP1 jlentini on PROD1PC65 with PROPOSALS 73680 Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / Proposed Rules that considerations of comity dictate that [it] defer to New Hampshire law on the matter of what person or persons should be deemed to speak for the state in [NRC] licensing proceedings.’’ 26 The Appeal Board went on to point out that since § 2.715(c) was issued in response to § 274l. of the AEA, which section had the stated purpose of furthering cooperation between the Commission and the states, ‘‘[i]t is reasonable to assume that the legislative contemplation was that the concerned state, and not this agency, would make the decision respecting who is to serve as its spokesman.’’ 27 Although the original version of § 2.715(c) was directed only to States, its reach was expanded in 1978 to political subdivisions of a State to ‘‘improve coordination with States, counties, and municipalities.’’ 28 The Appeal Board’s reasoning, with which the Commission agrees, also applies to local government bodies because restricting the representation choices of local government bodies does little to ‘‘improve coordination’’ with them. This Appeal Board decision is especially persuasive because, under both current § 2.315(c) and the former § 2.715(c), interested government participants have rights similar in many important respects to the rights of those participating as parties. These rights include the opportunity to introduce evidence, interrogate witnesses, file proposed findings, and petition for review. Given this level of participation, it would seem that interested government participants are, in fact, ‘‘appearing’’ in NRC adjudications, which arguably puts decisions respecting their representation under the umbrella of § 2.314(b).29 In any event, it would make little sense to impose representation choices on government bodies participating as parties that are different from the choices available to interested government participants. In light of the above, the Commission sees no need to put conditions on the representation of a government body that neither State law nor the governing charter of the body see fit to impose. To do so could only serve to limit government participation and would be contrary to the interests of comity. So long as a person is duly authorized to represent the government body in question, in conformity with State law 26 Id. at 148. NRC 144, 148–49. 28 ‘‘Miscellaneous Amendments,’’ (43 FR 17798, 17798; Apr. 26, 1978). 29 Section 2.314(b) governs who ‘‘may appear in an adjudication.’’ 27 25 VerDate Aug<31>2005 18:52 Dec 27, 2007 Jkt 214001 and any applicable local government charter, that person, whether an attorney or not, may represent that government body in NRC proceedings. Conclusion Lincoln County petitioned for a rule amendment that would allow AULGs to participate in NRC proceedings through any duly-authorized representative, which could include a non-attorney consultant. As explained above, however, Lincoln County’s desired outcome is already provided for in the current regulations, making Lincoln County’s desired rulemaking unnecessary. For this reason, Lincoln County’s petition for rulemaking is denied. Dated at Rockville, Maryland this 20th day of December 2007. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E7–25299 Filed 12–27–07; 8:45 am] BILLING CODE 7590–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG–104946–07] RIN 1545–BG36 Hybrid Retirement Plans Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. AGENCY: SUMMARY: This document contains proposed regulations providing guidance relating to sections 411(a)(13) and 411(b)(5) of the Internal Revenue Code (Code) concerning certain hybrid defined benefit plans. These regulations provide guidance on changes made by the Pension Protection Act of 2006. These regulations affect sponsors, administrators, participants, and beneficiaries of hybrid defined benefit plans. Written or electronic comments and requests for a public hearing must be received by March 27, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG–104946–07), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be handdelivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG–104946–07), Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue, DATES: PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at https:// www.regulations.gov (IRS REG–104946– 07). FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Lauson C. Green or Linda S. F. Marshall at (202) 622–6090; concerning submissions of comments or to request a public hearing, Funmi Taylor at (202) 622– 7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background This document contains amendments to the Income Tax Regulations (26 CFR part 1) under sections 411(a)(13) and 411(b)(5) of the Code. Generally, a defined benefit pension plan must satisfy the minimum vesting standards of section 411(a) and the accrual requirements of section 411(b) in order to be qualified under section 401(a) of the Code. Sections 411(a)(13) and 411(b)(5), which were added to the Code by section 701(b) of the Pension Protection Act of 2006, Public Law 109– 280, 120 Stat. 780 (PPA ’06), modify the minimum vesting standards of section 411(a) and the accrual requirements of section 411(b). Section 411(a)(13)(A) provides that an applicable defined benefit plan (which is defined in section 411(a)(13)(C)) is not treated as failing to meet either (i) The requirements of section 411(a)(2) (subject to a special vesting rule in section 411(a)(13)(B) with respect to benefits derived from employer contributions) or (ii) The requirements of section 411(c) or 417(e) with respect to contributions other than employee contributions, merely because the present value of the accrued benefit (or any portion thereof) of any participant is, under the terms of the plan, equal to the amount expressed as the balance in a hypothetical account or as an accumulated percentage of the participant’s final average compensation. Section 411(a)(13)(B) requires an applicable defined benefit plan to provide that an employee who has completed at least 3 years of service has a nonforfeitable right to 100 percent of the employee’s accrued benefit derived from employer contributions. Under section 411(a)(13)(C)(i), a plan is an applicable defined benefit plan if the plan is a defined benefit plan under which the accrued benefit (or any portion thereof) of a participant is calculated as the balance of a hypothetical account maintained for the participant or as an accumulated percentage of the participant’s final average compensation. Under section E:\FR\FM\28DEP1.SGM 28DEP1

Agencies

[Federal Register Volume 72, Number 248 (Friday, December 28, 2007)]
[Proposed Rules]
[Pages 73676-73680]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-25299]


=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

[Docket No. PRM-2-13]


Lincoln County, Nevada; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of Petition for rulemaking.

-----------------------------------------------------------------------

SUMMARY: The NRC is denying a petition for rulemaking submitted March 
23, 2007, by Lincoln County, Nevada, related to its potential 
participation as an affected unit of local government (AULG) in the NRC 
proceeding concerning the Department of Energy's proposed repository 
for high-level radioactive waste at Yucca Mountain, Nevada. Lincoln 
County desires an amendment to 10 CFR 2.314(b) to allow it and other 
AULGs to be represented in the proceeding by any duly authorized 
individual, including a non-attorney consultant. The Commission is 
denying the petition as unnecessary because the current regulations 
allow Lincoln County the representation it seeks.

ADDRESSES: Publicly available documents related to this petition, 
including the petition for rulemaking and the NRC's letter of denial to 
the petitioner, are available for public inspection or copying in the 
NRC Public Document Room, 11555 Rockville Pike, Rockville, Maryland. 
These documents are also available on the NRC's Electronic Reading Room 
at https://www.nrc.gov/reading-rm/adams.html. From this site, the public 
can gain entry into the NRC's Agencywide Document Access and Management 
System (ADAMS), which provides text and image files of NRC's public 
documents. The ADAMS accession numbers for the

[[Page 73677]]

rulemaking petition and the letter of denial sent to the petitioner are 
ML070930363 and ML073390550, respectively. If you do not have access to 
ADAMS or if there are problems in accessing the documents located in 
ADAMS, contact the PDR reference staff at (800) 387-4209, (301) 415-
4737 or by e-mail to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Michael A. Spencer, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington DC 
20555-0001, Telephone: (301) 415-4073.

SUPPLEMENTARY INFORMATION:

The Petitioner

    Lincoln County states that, according to the 2000 census, 
approximately 4,165 people, 1,540 families, and 1,010 households reside 
in the County. The average annual per capita income is approximately 
$17,000, and the primary occupations of the people of Lincoln County 
are cattle ranching, agriculture, government services, and small-scale 
mining.

Background

I. The Yucca Mountain Repository and Its Relationship to Lincoln County

    The Nuclear Waste Policy Act of 1982, as amended (NWPA) \1\ 
established a national program for the management and permanent 
disposal of high-level radioactive waste (HLW). In 1987, the NWPA was 
amended to direct the Department of Energy (DOE) to focus its site 
characterization activities only on Yucca Mountain. The NWPA provides 
that if the President recommends the site to Congress and this 
recommendation is disapproved according to sections 116 or 118 of the 
NWPA (42 U.S.C. 10136 and 10138), the site will be disapproved unless 
Congress passes a resolution of repository siting approval.\2\ After 
the President's recommendation of Yucca Mountain as the site for the 
repository and the State of Nevada's disapproval of this 
recommendation, Congress passed a resolution approving Yucca Mountain 
as the repository site.\3\ Because of Congress's approval, DOE will 
submit an application to the NRC for a repository at Yucca Mountain, 
which application will be reviewed according to the NRC's regulations 
in 10 CFR Part 63. In addition, a public hearing regarding the HLW 
repository application (HLW proceeding) will be conducted under 
Subparts C and J of Part 2 of the NRC's regulations. DOE expects to 
submit this application in 2008.
---------------------------------------------------------------------------

    \1\ 42 U.S.C. 10101 et. seq.
    \2\ 42 U.S.C. 10135(c).
    \3\ Pub. L. No. 107-200 (2002).
---------------------------------------------------------------------------

    The NWPA also provides, in 42 U.S.C. 10136(c) and 10222(d), that 
DOE will provide grants to States and affected units of local 
government (AULGs) from the Nuclear Waste Fund to assist them in 
undertaking certain specified activities related to the Yucca Mountain 
repository. DOE has designated several counties as AULGs,\4\ and 
Lincoln County, which is adjacent to the county where the proposed 
repository would be located, states that it is an AULG that receives 
DOE grants from the Nuclear Waste Fund. According to Lincoln County, 
these grants are subject to Congressional appropriations. AULGs also 
have status under Commission regulations, being recognized as potential 
parties to the HLW proceeding.\5\ Although an application has yet to be 
submitted, NRC adjudicatory activities such as document disclosures are 
already underway. Prior to the docketing of DOE's application, 
adjudicatory activities in the HLW proceeding related to document 
access, discovery, and the Licensing Support Network (LSN) are under 
the jurisdiction of the Pre-License Application Presiding Officer 
(PAPO).
---------------------------------------------------------------------------

    \4\ U.S. Dep't of Energy, Office of Civilian Radioactive Waste 
Management, Annual Report to Congress for Fiscal Year 2002, at 23 
(Sept. 2003), available at https://www.ocrwm.doe.gov/info_library/
program_docs/annualreports/02ar/fy_2002.pdf.
    \5\ See 10 CFR 2.1001 (definition of ``potential party''). An 
AULG may become a party upon submission of an admissible contention 
related to the application. Id.
---------------------------------------------------------------------------

II. The Basis for the Petition

    On October 27, 2005, the PAPO issued a notice informing potential 
parties and interested government participants of an upcoming tour of 
the Yucca Mountain repository. Space for this tour was limited, 
however, so only representatives of potential parties or interested 
government participants who had filed a notice of appearance under 10 
CFR 2.314(b) were permitted to join the tour.
    A non-attorney consultant contacted the Atomic Safety and Licensing 
Board Panel (ASLBP) requesting permission to join the tour as the 
representative of both Lincoln County and White Pine County, Nevada, 
but he was informed that neither county had filed a notice of 
appearance in the proceeding.\6\ White Pine County, then timely filed a 
notice of appearance, designating the non-attorney consultant as its 
representative. A majority of the PAPO did not deem this representation 
proper, however, because the majority believed that government entities 
are limited by 10 CFR 2.314(b) to attorney representation only.\7\ The 
members of the PAPO did not provide any analysis or otherwise state the 
bases for their conclusions. Because of the lack of briefing and lack 
of unanimity on the issue, the PAPO allowed the consultant to 
participate in that particular trip as a matter of the PAPO's 
discretion, leaving resolution of the representation issue for 
``another day.'' \8\
---------------------------------------------------------------------------

    \6\ United States Dep't of Energy (High Level Waste Repository: 
Pre-Application Matters), No. PAPO-00, 2005 WL 4799369, at *1 (LBP 
Dec. 2, 2005) (unpublished order).
    \7\ Id.
    \8\ Id.
---------------------------------------------------------------------------

    This representation issue is at the heart of the petition. Lincoln 
County desires the option of being represented through non-attorney 
``consultants or other duly authorized representatives.'' Lincoln 
County states that it is a small county with few resources that is 
entirely dependent on DOE grants from the Nuclear Waste Fund to 
participate in NRC proceedings. Lincoln County further states that the 
grants may only be used for participation in licensing proceedings if 
expressly appropriated by Congress and that such appropriations have 
been made only since FY 2006. According to Lincoln County, the amount 
of funding (if any) is variable and unpredictable because it depends on 
an annual decision of Congress, which may change from year to year. 
Further, Lincoln County claims that the DOE grants, which have totaled 
$5.3 million for Lincoln County over the last eight years, are used for 
diverse purposes, such as operating its Nuclear Waste Oversight Office, 
conducting public information activities, and retaining expert 
consultants. Lincoln County, therefore, believes that it cannot afford 
to retain experienced counsel for the purpose of representing it on a 
daily basis in the HLW proceeding, which Lincoln County expects to 
``entail literally hundreds of days of hearings.'' Lincoln County also 
claims that its District Attorney's office will not be able to 
regularly participate in the HLW proceeding because the office has only 
one attorney, the District Attorney, who is responsible for both 
criminal and civil matters.
    At the time the petition was filed in March of this year, the 
representation issue had yet to be resolved by the PAPO, and still has 
yet to be resolved. At a case management conference only a couple of 
weeks prior to the filing of the rulemaking petition, the PAPO 
recognized that the issue remained to be decided, but thought 
resolution might

[[Page 73678]]

await a ``concrete set of facts.'' \9\ Lincoln County believes that 
this issue must be resolved quickly because DOE's license application 
is expected in 2008, and it can come as early as six months after DOE 
certifies that its document collection is available on the Licensing 
Support Network.\10\ DOE certified its document collection on October 
19, 2007.\11\ Also, the application is expected ``not later than June 
30, 2008.'' \12\ Lincoln County believes that it is unclear when the 
PAPO may deem the representation issue ripe enough to rule on it, and 
that the disposition of any appeal of such a ruling might not come well 
enough in advance of the hearings to allow Lincoln County and other 
AULGs to effectively plan for them. In its petition for rulemaking, 
Lincoln County ``is requesting that the Commission directly and 
authoritatively clarify this issue * * * to allow AULGs sufficient time 
to plan their participation'' in the HLW proceeding.
---------------------------------------------------------------------------

    \9\ Transcript at 954-55 (March 5, 2007).
    \10\ See 10 CFR 2.1003(a).
    \11\ DOE's certification came in a filing in the PAPO proceeding 
styled ``The Department of Energy's Certification of Compliance.'' 
This certification has been challenged in the PAPO proceeding by the 
State of Nevada in a ``Motion to Strike DOE's October 19, 2007 LSN 
Recertification and to Suspend Certification Obligations of Others 
until DOE Validly Recertifies,'' (Oct. 29, 2007).
    \12\ ``The Department of Energy's Thirtieth Monthly Status 
Report Regarding LSN Certification and License Application 
Submittal,'' (November 1, 2007).
---------------------------------------------------------------------------

III. Lincoln County's Requested Relief

    Lincoln County states that it has not discovered a judicial or NRC 
decision squarely on point and that it is unclear whether an AULG may 
be represented by a non-attorney in the HLW proceeding under the 
current regulations. Lincoln County does believe that it is 
unreasonable to allow partnerships, corporations, and unincorporated 
associations to be represented by non-attorney members or officers, as 
provided by Sec.  2.314(b), but to disallow such representation for 
AULGs. Lincoln County, however, wishes to have greater representation 
options than these private entities because County Commissioners serve 
voluntarily and have other jobs, while ``full-time government officials 
and officers cannot reasonably be expected to vacate their daily public 
duties to the taxpayers in order to participate in NRC licensing 
proceedings.'' Lincoln County requests that the following language be 
added to Sec.  2.314(b):

    In any adjudicatory proceeding concerning an application for a 
license to construct a geological repository for high-level 
radioactive waste pursuant to the Nuclear Waste Policy Act, as 
amended, an affected unit of local government (as designated by the 
Secretary of Energy pursuant to 42 U.S.C. Sec.  10136(c)) may be 
represented by any duly authorized representative and/or an 
attorney-at-law.

Analysis of the Petition

    Lincoln County wishes to have the option of being represented in 
the HLW proceeding through non-attorney ``consultants or other duly 
authorized representatives'' and has submitted the instant petition to 
achieve that result through rulemaking. If the current regulations do 
not proscribe such representation, however, then no relief through 
rulemaking is necessary. Before considering Lincoln County's proposed 
modification, therefore, it must first be ascertained whether the 
current regulations do, in fact, pose such a bar. Resolution of this 
issue depends on answers to the following questions:
    (1) May a county be represented in an adjudication by a non-
attorney?
    (2) If representation by a non-attorney is allowed, may any duly 
authorized individual, including a non-attorney consultant, represent a 
county?
    Section 2.314(b), which contains the representation provision for 
NRC proceedings, is the primary source for answering these questions. 
Also relevant, however, are the provisions in Sec. Sec.  2.309(d)(2) 
and 2.315(c) relating to participation by a State or local government 
body (defined in these sections as a ``county, municipality, or other 
subdivision'') and other expressions of Commission policy and practice.
    As explained below, a local government body may be represented 
under the current regulations by any individual, including a non-
attorney consultant, if the individual is duly authorized. For this 
reason, the Commission is denying the petition as unnecessary.

I. A State or Local Government Body May Appear on Its Own Behalf, as 
Well as Be Represented by an Attorney

    A. States and local government bodies are ``persons'' under Sec.  
2.314(b).
    Representation in NRC proceedings is governed by 10 CFR 2.314(b), 
which provides the following:

    A person may appear in an adjudication on his or her own behalf 
or by an attorney-at-law. A partnership, corporation, or 
unincorporated association may be represented by a duly authorized 
member or officer, or by an attorney-at-law. A party may be 
represented by an attorney-at-law if the attorney is in good 
standing and has been admitted to practice before any Court of the 
United States, the District of Columbia, or the highest court of any 
State, territory, or possession of the United States.

(emphasis added).

    In addition to representation by an attorney, Sec.  2.314(b) 
expressly provides the option of self-representation for a ``person,'' 
and the word ``person'' is defined in Sec.  2.4 very broadly to cover 
many entities, including ``any State or any political subdivision of, 
or any political entity within a State.'' A State or local government 
body, therefore, is a ``person'' under Part 2 and has the option under 
Sec.  2.314(b) either to be represented by an attorney or to appear on 
its own behalf and be represented by one other than an attorney. The 
rule text, however, does not specify who may represent a government 
body appearing on its own behalf. This issue will be the subject of 
Section II of this document.
    B. The regulatory history of the representation provision and 
Commission practice favor a broad reading of ``person.''
    The language in Sec.  2.314(b) derives from two rulemakings, the 
first in 1962 and the second in 1980. The 1962 rulemaking was a major 
revision to Part 2 that substantially revised and simplified the 
representation provision. After the 1962 revisions, former Sec.  
2.713(a) read as follows:

    A person may appear in an adjudication on his own behalf or by 
an attorney-at-law in good standing admitted to practice before any 
court of the United States, the District of Columbia, or the highest 
court of any State, territory, or possession of the United 
States.\13\
---------------------------------------------------------------------------

    \13\ ``Revision of Rules,'' (27 FR 377, 383; Jan. 13, 1962). The 
representation provision was moved to its current home in Sec.  
2.314(b) during the major Part 2 revisions of 2004. See ``Changes to 
Adjudicatory Process,'' (69 FR 2182; Jan. 14, 2004). The original 
``representation'' provision was found in Sec.  2.704, as issued in 
1956. (21 FR 804, 806; Feb. 4, 1956).

    Although the word ``person'' was not explicitly defined in the 
regulations at that point, Sec.  2.4 in the same rulemaking provided 
that ``[w]ords or phrases which are defined in the Atomic Energy Act of 
1954, as amended, and in this chapter have the same meaning when used 
in this part.'' \14\ Section 11 of the Atomic Energy Act of 1954 (AEA) 
had already defined ``person'' broadly to include ``any State or any 
political subdivision of, or any political entity within a State,'' 
among other entities.\15\
---------------------------------------------------------------------------

    \14\ 27 FR 377, 378.
    \15\ 42 U.S.C. 2014, Pub. L. No. 83-703, 68 Stat. 919, 922 
(1954).
---------------------------------------------------------------------------

    The 1980 amendments, which moved the representation provision from 
Sec.  2.713(a) to Sec.  2.713(b), added the provision for partnerships, 
corporations, and unincorporated associations that is still found in 
current Sec.  2.314(b). This addition was characterized in the proposed 
rule as ``clarify[ing] who may

[[Page 73679]]

appear before NRC in a representative capacity.'' \16\ Although the 
proposed rule change spoke to representation of partnerships, 
corporations, and unincorporated associations only by members, the 
final rule added representation by officers. This addition was 
described in the final rule as ``mak[ing] clear that a partnership, 
corporation or unincorporated association may be represented by a duly 
authorized officer, as well as by a member or attorney, and reflects 
both actual practice and the intent of the rule.'' \17\
---------------------------------------------------------------------------

    \16\ ``Changes in Rules of Practice Governing Discipline in 
Adjudicatory Proceedings,'' (45 FR 3594, 3594; Jan. 18, 1980).
    \17\ Final Rule, ``Changes in Rules of Practice Governing 
Discipline in Adjudicatory Proceedings,'' 45 FR 69877, 69878.
---------------------------------------------------------------------------

    The Commission, therefore, in issuing the 1980 amendment to the 
representation provision, viewed the amendment as a clarification of 
the older representation provision for ``persons'' and not as a 
substantive change or addition. The Commission also recognized that 
representation of certain entities by non-attorneys was occurring in 
Commission proceedings, but gave no indication that this practice was 
in any way contrary to the regulations.\18\ The representation rights 
specified in the 1980 amendment, therefore, should be seen as inherent 
in the concept of self-representation in former Sec.  2.713(a), even if 
the former provision did not express these rights in their precise 
contours. ``Person'' in Sec.  2.314(b), therefore, should be read 
broadly to include States and local government bodies, which would 
allow government bodies to appear on their own behalf through a non-
attorney.
---------------------------------------------------------------------------

    \18\ For examples of Commission practice prior to the 1980 
amendment, see Duke Power Co. (Catawba Nuclear Station, Units 1 and 
2), LBP-73-28, 6 AEC 666, 678-80 (1973), (specifically noting the 
broad AEA definition of ``person'' in concluding that representation 
of an organization by a non-attorney member was consonant with 
Commission regulations, the APA, and the AEA), aff'd, ALAB-150, 6 
AEC 811, clarification denied, ALAB-155, 6 AEC 829; and General 
Electric Co. (GE Test Reactor, Vallecitos Nuclear Center), LBP-79-
28, 10 NRC 578, 583-84 (1979) (distinguishing representation of 
organizations by non-attorney members from representation of a U.S. 
congressman by a non-attorney by pointing out that the non-attorney 
organization members were ``appear[ing] as the `person * * * on his 
own behalf,' and not as a representative of that person'').
---------------------------------------------------------------------------

II. Any Duly Authorized Individual May Represent a State or Local 
Government Body

    As explained above, Sec.  2.314(b) does not specify who may 
represent a State or local government body appearing on its own behalf. 
To resolve this petition, the question whether a non-attorney 
consultant may serve as such a representative must also be answered. In 
deciding the question, the Commission has considered its policy and 
practice, the interests of comity, and the distinct interests that 
government bodies represent.\19\ As explained below, Commission policy 
and practice favor deference to State law and government choice on the 
question of representation. The Commission, therefore, concludes that 
States and local government bodies may be represented by anyone duly 
authorized to represent the government body in question.\20\
---------------------------------------------------------------------------

    \19\ The practice of the federal courts is not dispositive of 
the outcome of this question because, as opposed to Commission 
practice, federal courts generally forbid non-attorney 
representation of entities. See Rowland v. California Men's Colony, 
Unit II Men's Advisory Council, 506 U.S. 194, 201-02 (1993) (stating 
that in federal practice, corporations and other artificial entities 
``may appear in the federal courts only through licensed counsel'').
    \20\ To be clear, this response to the petition addresses only 
the representation of State and local government bodies, as defined 
in Sec.  2.309(d)(2), and does not address the representation of any 
other type of entity.
---------------------------------------------------------------------------

    ``[T]he Commission has long recognized the benefits of 
participation in [its] proceedings by representatives of interested 
states, counties, municipalities, etc.'' \21\ The Commission put this 
policy into practice, in part, through Sec.  2.315(c), which allows 
interested States and local government bodies a special opportunity to 
participate in NRC hearings that is unavailable to private individuals 
or entities.\22\ A narrow reading of Sec.  2.314(b) with respect to 
government bodies, however, could hinder the participation of smaller 
government bodies, such as Lincoln County, who lack the resources and 
flexibility to fully participate solely through attorneys, elected 
officials, or full-time government officials or officers. A narrow 
reading, moreover, would not produce any countervailing benefit because 
the Commission has no interest in telling governments which types of 
non-attorneys may represent them. Because Commission policy clearly 
favors government participation, a rule interpretation limiting such 
participation should be disfavored if it produces no benefit and is not 
required by the text of the rule.
---------------------------------------------------------------------------

    \21\ Niagara Mohawk Power Corp. (Nine Mile Point Nuclear 
Station, Units 1 and 2), CLI-99-30, 50 NRC 333, 344 (1999).
    \22\ Affected, Federally-recognized Indian Tribes also enjoy 
Sec.  2.315(c) non-party participant rights.
---------------------------------------------------------------------------

    The Commission is also persuaded that it would be misguided to 
impose on government bodies representation choices analogous to the 
Sec.  2.314(b) representation choices for partnerships, corporations, 
and unincorporated associations. First, such an attempt ignores that 
government bodies and private entities are different creatures with 
different powers serving different interests, which is why they are 
treated differently regarding nonparty participation. Second, choosing 
an analogous government version of a private entity member or officer 
might prove difficult and result in unfairness. If government lay 
representation were limited to elected officials, for example, 
government bodies would have much less flexibility in their 
representation than unincorporated associations, who may be represented 
by anyone who joins the association.
    Instead of imposing representation limits on government bodies, 
therefore, the Commission broadly reads Sec.  2.314(b) to allow 
government bodies to choose their representatives, as long as these 
choices comport with State law and any applicable local government 
charter. The Commission adopts this broad reading because it recognizes 
that government bodies serve the public interest and because it 
respects their choices regarding their own representation. This broad 
reading, in its deference to State law and government choice, also 
accords with Commission practice. For instance, in the major 2004 
revisions to part 2, the new Sec. Sec.  2.309(d) and 2.315(c) limited 
State and local government body participation to a single 
representative.\23\ According to the statement of considerations for 
the rule, however, ``[w]here a State's constitution provides that both 
the Governor and another State official or State governmental body may 
represent the interests of the State in a proceeding,'' the governor 
and other official/body could participate as distinct parties, each 
with a single representative.\24\
---------------------------------------------------------------------------

    \23\ ``Changes to Adjudicatory Process,'' (69 FR 2182; Jan. 14, 
2004).
    \24\ Id. at 2222.
---------------------------------------------------------------------------

    Similar concern for State law and government choice was also 
expressed by the former Atomic Safety and Licensing Appeal Board 
(Appeal Board), which faced the issue whether a Congressman from New 
Hampshire, in addition to the Attorney General, could serve as a 
representative of New Hampshire participating as an interested 
government under former Sec.  2.715(c).\25\ In deciding that only the 
Attorney General could represent the State, the Appeal Board rested its 
decision on State law because it was ``persuaded

[[Page 73680]]

that considerations of comity dictate that [it] defer to New Hampshire 
law on the matter of what person or persons should be deemed to speak 
for the state in [NRC] licensing proceedings.'' \26\ The Appeal Board 
went on to point out that since Sec.  2.715(c) was issued in response 
to Sec.  274l. of the AEA, which section had the stated purpose of 
furthering cooperation between the Commission and the states, ``[i]t is 
reasonable to assume that the legislative contemplation was that the 
concerned state, and not this agency, would make the decision 
respecting who is to serve as its spokesman.'' \27\ Although the 
original version of Sec.  2.715(c) was directed only to States, its 
reach was expanded in 1978 to political subdivisions of a State to 
``improve coordination with States, counties, and municipalities.'' 
\28\ The Appeal Board's reasoning, with which the Commission agrees, 
also applies to local government bodies because restricting the 
representation choices of local government bodies does little to 
``improve coordination'' with them.
---------------------------------------------------------------------------

    \25\ Public Service Company of New Hampshire (Seabrook Station, 
Units 1 and 2), ALAB-862, 25 NRC 144 (1987).
    \26\ Id. at 148.
    \27\ 25 NRC 144, 148-49.
    \28\ ``Miscellaneous Amendments,'' (43 FR 17798, 17798; Apr. 26, 
1978).
---------------------------------------------------------------------------

    This Appeal Board decision is especially persuasive because, under 
both current Sec.  2.315(c) and the former Sec.  2.715(c), interested 
government participants have rights similar in many important respects 
to the rights of those participating as parties. These rights include 
the opportunity to introduce evidence, interrogate witnesses, file 
proposed findings, and petition for review. Given this level of 
participation, it would seem that interested government participants 
are, in fact, ``appearing'' in NRC adjudications, which arguably puts 
decisions respecting their representation under the umbrella of Sec.  
2.314(b).\29\ In any event, it would make little sense to impose 
representation choices on government bodies participating as parties 
that are different from the choices available to interested government 
participants.
---------------------------------------------------------------------------

    \29\ Section 2.314(b) governs who ``may appear in an 
adjudication.''
---------------------------------------------------------------------------

    In light of the above, the Commission sees no need to put 
conditions on the representation of a government body that neither 
State law nor the governing charter of the body see fit to impose. To 
do so could only serve to limit government participation and would be 
contrary to the interests of comity. So long as a person is duly 
authorized to represent the government body in question, in conformity 
with State law and any applicable local government charter, that 
person, whether an attorney or not, may represent that government body 
in NRC proceedings.

Conclusion

    Lincoln County petitioned for a rule amendment that would allow 
AULGs to participate in NRC proceedings through any duly-authorized 
representative, which could include a non-attorney consultant. As 
explained above, however, Lincoln County's desired outcome is already 
provided for in the current regulations, making Lincoln County's 
desired rulemaking unnecessary. For this reason, Lincoln County's 
petition for rulemaking is denied.

    Dated at Rockville, Maryland this 20th day of December 2007.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E7-25299 Filed 12-27-07; 8:45 am]
BILLING CODE 7590-01-P
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