Rule: Electric Utilities (Federal Power Act) : Hydroelectric Licensing Regulations

Thursday,
November 17, 2005
Part II
Department of
Agriculture
7 CFR Part 1
Department of the
Interior
43 CFR Part 45
Department of
Commerce
National Oceanic and Atmospheric
Administration
50 CFR Part 221

Resource Agency Procedures for
Conditions and Prescriptions in
Hydropower Licenses; Interim Final Rule
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69804 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations
DEPARTMENT OF AGRICULTURE ADDRESSES: You may submit comments, in the ADDRESSES section above. We will
identified by any of the Regulation consider all comments received by the
Office of the Secretary Identifier Numbers (RINs) shown above deadline stated in the DATES section
(0596–AC42, 1094–AA51, or 0648– above. Based on the comments received
7 CFR Part 1 AU01), by one of the methods listed and the initial results of
below. Comments submitted to any one implementation, we will consider
DEPARTMENT OF THE INTERIOR of the three Departments will be shared promulgation of revised final rule
with the others, so it is not necessary to within 18 months of the effective date
Office of the Secretary submit comments to all three of this rule.
Departments. Please make your comments as
43 CFR Part 45 1. Federal rulemaking portal: http:// specific as possible and explain the
www.regulations.gov. Follow the reason for any changes you recommend.
DEPARTMENT OF COMMERCE instructions for submitting comments Where possible, your comments should
on-line. reference the specific section or
National Oceanic and Atmospheric 2. E-mail to any one of the following: paragraph of the rules that you are
Administration a. Department of Agriculture: addressing.
gsmith08@fs.fed.us; include ‘‘RIN 0596– We will make comments available for
50 CFR Part 221 AC42’’ in the subject line of the public review during regular business
message; hours. To review the comments, you
[Docket No. 051103290–5290–01; I.D. b. Department of the Interior: may contact any of the individuals
101105D] DOIHydro_Comments@ios.doi.gov; listed in the FOR FURTHER INFORMATION
include ‘‘RIN 1094–AA51’’ in the CONTACT section above. Individual
RINs 0596–AC42; 1094–AA51; 0648–AU01 subject line of the message; or respondents may request that we
c. Department of Commerce: withhold their home address from the
Resource Agency Procedures for NMFS.Hydro@noaa.gov; include ‘‘RIN rulemaking record. We will honor the
Conditions and Prescriptions in 0648–AU01’’ in the subject line of the request to the extent allowable by law.
Hydropower Licenses message. In some circumstances we may
3. Facsimile to any of the following: withhold from the rulemaking record a
AGENCIES: Office of the Secretary, respondent’s identity, as allowable by
Agriculture; Office of the Secretary, a. Department of Agriculture: 202–
205–1604; law. If you wish us to withhold your
Interior; National Marine Fisheries name and/or address, you must state
Service, National Oceanic and b. Department of the Interior: 202–
208–4867; or this prominently at the beginning of
Atmospheric Administration, your comment. However, we will not
Commerce. c. Department of Commerce: 301–
713–4305. consider anonymous comments. We
ACTION: Interim final rules with request will make all submissions from
4. Mail or hand delivery to any of the
for comments. organizations or businesses, and from
following:
a. Deputy Chief, National Forest individuals identifying themselves as
SUMMARY: As required by the Energy
Systems, c/o WO Lands Staff, representatives or officials of
Policy Act of 2005 (EPAct), the
Department of Agriculture, Mail stop organizations or businesses, available
Departments of Agriculture, the Interior,
1124, 1400 Independence Avenue SW., for public inspection in their entirety.
and Commerce are jointly establishing
procedures for a new category of Washington, DC 20250–1124; II. Background
expedited trial-type hearings. The b. Office of Policy Analysis, Office of
A. Energy Policy Act of 2005 (EPAct).
hearings will resolve disputed issues of the Secretary, Mail Stop 4426–MIB,
The rules that Agriculture, Interior, and
material fact with respect to conditions Department of the Interior, 1849 C
Commerce are publishing today
or prescriptions that one or more of the Street, NW., Washington, DC 20240; or
implement section 241 of EPAct, Public
Departments develop for inclusion in a c. Chief, Habitat Protection Division,
Law 109–58, which the President signed
hydropower license issued by the Office of Habitat Conservation, National
into law on August 8, 2005. EPAct,
Federal Energy Regulatory Commission Marine Fisheries Service, 1315 East-
which passed by wide margins in both
(FERC) under the Federal Power Act. West Highway, Silver Spring, MD
Houses, was the product of years of
The three Departments are also 20910.
Congressional hearings, amendments,
establishing procedures for the FOR FURTHER INFORMATION CONTACT: Greg and debates. The issues underlying
consideration of alternative conditions Smith, Director of Lands, Forest Service, section 241 were extensively considered
and prescriptions submitted by any U.S. Department of Agriculture, 202– by the 109th Congress and several
party to a license proceeding, as 205–1769; or Larry Finfer, Office of previous Congresses.
provided in EPAct. Policy Analysis, Department of the Section 241 amends sections 4(e) and
Three substantively identical rules are Interior, 202–208–5978; or Melanie 18 of the Federal Power Act (FPA), 16
being promulgated—one for each Harris, Office of Habitat Conservation, U.S.C. 797(e), 811, to provide that any
agency—with a common preamble. The National Marine Fisheries Service, 301– party to a license proceeding is entitled
rules are effective immediately, so that 713–4300. Persons who use a to a determination on the record, after
interested parties may avail themselves telecommunications device for the deaf opportunity for an agency trial-type
of the new hearing right and alternatives (TDD) may call the Federal Information hearing of no more than 90 days, of any
process created by the EPAct, but the Relay Service (FIRS) at 800–877–8339. disputed issues of material fact with
Departments are requesting comments SUPPLEMENTARY INFORMATION: respect to any agency’s mandatory
on ways the rules can be improved. conditions or prescriptions. Section 241
DATES: These rules are effective on
I. Public Comments further mandates that, within 90 days of
November 17, 2005. If you wish to comment on these the date of enactment of EPAct, the
Comments: You should submit your interim final rules, you may submit your three Departments establish jointly, by
comments by January 17, 2006. comments by any of the methods listed rule and in consultation with FERC,
Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69805
procedures for the expedited trial-type process, while ensuring that licenses Tribes, the license applicant, and
hearing, including the opportunity to provide appropriate resource members of the public. The ILP brings
undertake discovery and cross-examine protections required by the FPA and together activities that previously were
witnesses. other applicable laws. 68 FR 51070. conducted over a much longer time
Section 241 of EPAct also adds a new Two other processes, the traditional frame, including consultation, studies,
section 33 to the FPA that allows the licensing process (TLP) and the dispute resolution, scoping and
license applicant or any other party to alternative licensing process (ALP), are document preparation under the
the license proceeding to propose an also available; but the ILP is the default National Environmental Policy Act, 42
alternative condition or prescription. process and FERC’s permission must be U.S.C. 4321 et seq. (NEPA), and water
The Secretary of the agency involved obtained to use the TLP or ALP. Id. quality certification.
must accept the proposed alternative if The FPA’s resource protection There are two main phases to the
the Secretary determines, based on provisions include sections 4(e), process: (1) A pre-application phase
substantial evidence provided by a party 10(a)(1), 10(j), and 18, 16 U.S.C. 797(e), involving activities before the filing
to the license proceeding or otherwise 803(a)(1), 803(j), and 811. Section with FERC of a license application, and
available to the Secretary, (a) that the 10(a)(1) provides that hydropower (2) a post-application phase. The
alternative condition provides for the licenses must be best adapted to a process begins with the applicant’s
adequate protection and utilization of comprehensive plan for improving or filing with FERC a notice of intent (NOI)
the reservation, or that the alternative developing the affected waterways for to file an application for an original,
prescription will be no less protective all beneficial public uses, and must new, or subsequent license. 18 CFR 5.5.
than the fishway initially proposed by include provisions for the protection of The NOI must be filed 5–51⁄2 years
the Secretary, and (b) that the fish and wildlife and other beneficial before the existing license expires. 18
alternative will either cost significantly public uses. Section 10(j) provides that CFR 5.5(d). Along with the NOI, the
less to implement or result in improved Interior and Commerce may make applicant must file a pre-application
operation of the project works for recommendations to FERC on document providing available
electricity production. conditions for the protection, information on engineering, economics,
New FPA section 33 further provides mitigation, and enhancement of fish and and the existing environment, including
that, following the consideration of wildlife affected by the project. FERC data or studies relevant to the
alternatives, the Secretary must file with must include those conditions in the environment and known and potential
FERC a statement explaining his or her license unless it finds that they would impacts of the proposed project on
reasons for accepting or rejecting any be inconsistent with the purposes and various resources. 18 CFR 5.6.
alternatives and the basis for any requirements of the FPA or other Other steps in the pre-application
modified conditions or prescriptions to applicable law, and that conditions phase include FERC’s issuance of a
be included in the license. If FERC finds selected by FERC will adequately scoping document, holding of a scoping
that the modified conditions or protect, mitigate damages to, and meeting, and issuance of a process plan
prescriptions would be inconsistent enhance fish and wildlife. and schedule. 18 CFR 5.8. During these
with the purposes of the FPA or other Under FPA section 4(e), licenses for steps, resource issues and the need for
applicable law, it may refer the matter projects located within Federal information and studies are identified,
to its Dispute Resolution Service (DRS). reservations must include conditions and the scoping of issues under NEPA
The DRS is to consult with the Secretary mandated by the Department that is initiated. 18 CFR 5.8.
and FERC and issue a non-binding manages the reservation, which in most Eventually, the applicant files a
advisory within 90 days, following cases is Agriculture or Interior. Section proposed study plan, the plan is
which the Secretary is to make a final 4(e) also requires FERC to give assessed through meetings and
written determination on the conditions environmental values, including fish comments, and the applicant files a
or prescriptions. and wildlife and recreation, equal revised study plan for FERC’s approval.
This preamble explains how the consideration with hydropower 18 CFR 5.11–.13. After FERC’s approval,
Departments will comply with EPAct’s development. Under section 18, licenses the plan may be subject to a study
requirements for trial-type hearings and must also include fishways if they are dispute resolution process if disputes
for the receipt and analysis of prescribed by Interior or Commerce. As arise. 18 CFR 5.14. Approximately 1
alternative conditions and prescriptions. provided in section 1701(b) of the year elapses from issuance of the NOI to
As explained further below, these new Energy Policy Act of 1992, Public Law final approval of a study plan.
rights are being made available 102–486, ‘‘the items which may Studies are then conducted, reviewed,
immediately to any license applicant or constitute a ‘fishway’ under section 18 and modified if necessary. 18 CFR 5.13–
other party to a license proceeding for for the safe and timely upstream and .15. Studies may extend for more than
which the license has not already been downstream passage of fish shall be one season. After completion of the
issued as of the effective date of these limited to physical structures, facilities, studies, the applicant files a preliminary
rules. or devices necessary to maintain all life licensing proposal, which is subject to
B. FERC’s licensing process for stages of such fish, and project comment and additional information
hydroelectric power projects. On August operations and measures related to such requests. 18 CFR 5.16.
25, 2003, FERC published a final rule structures, facilities, or devices which At least 2 years before the existing
amending its regulations at 18 CFR part are necessary to ensure the effectiveness license expires, the application must be
5 for licensing hydroelectric power of such structures, facilities, or devices filed with FERC. 18 CFR 5.17(a). Within
projects to establish a new licensing for such fish.’’ 14 days of that filing, FERC must issue
process known as the integrated The ILP is a multi-year process— public notice of the filing and a
licensing process (ILP). 68 FR 51070. involving more than 20 sequential steps, preliminary schedule for expeditious
The amendments were the culmination most with associated deadlines—that processing of the application, including
of efforts by FERC, other Federal and constitutes a logical progression of dates for the following steps: Filing of
State agencies, Indian Tribes, licensees, information development, exchange, preliminary conditions and
and members of the public to develop and analysis involving FERC, other prescriptions by the Departments;
a more efficient and timely licensing Federal and State agencies, Indian issuance of an environmental
assessment (EA), a draft EA, or a draft Under section 4(e) of the FPA, 16 an evidentiary hearing or an
environmental impact statement (EIS); U.S.C. 797(e), Agriculture and Interior administrative appeal. The Departments
filing of comments on any draft EIS or may establish conditions necessary for decided not to adopt such procedures at
EA; filing of mandatory conditions or the adequate protection and utilization that time.
prescriptions by the agencies in of reservations. The term ‘‘reservations,’’ After 3 years of experience using the
response to any draft EIS or EA; and as used in the FPA, includes certain MCRP, each of the Departments issued
issuance of any final EIS or EA. 18 CFR lands and facilities under the proposed rules to codify the MCRP with
5.19(a). jurisdiction of the U.S. Forest Service clarifications. 69 FR 54602 (Sept. 9,
When FERC determines that the within Agriculture, and various 2004) (Interior); 69 FR 54615 (Sept. 9,
application meets various requirements, components of Interior (namely, FWS, 2004) (Commerce). Interior also
that the approved studies have been the National Park Service, the Bureau of proposed to add a new administrative
completed, that any deficiencies in the Land Management, the Bureau of appeals process to follow review and
application have been cured, and that Reclamation, or the Bureau of Indian comment under the MCRP. Interior
no other additional information is Affairs). again considered but decided not to
needed, it will issue a notice of Through these statutory provisions, adopt an evidentiary hearing process,
acceptance and readiness for the FPA authorizes the Departments to out of concern that there was
environmental analysis (REA). 18 CFR set conditions or prescriptions for the insufficient time in the FERC licensing
5.22. That notice must include a request protection of public and Tribal process to accommodate it. 69 FR
for preliminary conditions and resources that may be affected when 54603.
prescriptions from the Departments. 18 navigable waterways or Federal Neither Department has yet issued a
CFR 5.22. reservations are used for hydroelectric final rule codifying the MCRP. Given
Comments, protests, projects licensed by FERC. the new procedures mandated by EPAct,
recommendations, and preliminary The Departments’ conditions and which effectively subsume or supersede
prescriptions must be incorporated by the MCRP, there no longer appears to be
conditions and prescriptions must be
FERC into any hydropower license it a need for such a rule or to continue
filed with FERC within 60 days after the
issues under the FPA. This authority implementing the MCRP.
REA. 18 CFR 5.23(a). All reply
has been recognized and upheld by the E. How the trial-type hearing and
comments must be filed within 105 days
Federal courts, including the Supreme alternatives process will fit into the
of the REA. 18 CFR 5.23(a). If FERC
Court. See Escondido Mutual Water Co. FERC licensing timeframe. As noted in
determines that an EIS or a draft and
v. La Jolla Band of Mission Indians, 466 the SUMMARY section above, to comply
final EA will be prepared, FERC will
U.S. 765 (1984); American Rivers v. with EPAct’s mandate, the Departments
issue a draft EIS or EA no later than 180
FERC, 201 F.3d 1186 (9th Cir. 1999); are promulgating three substantively
days from the deadline for responses to
Bangor Hydro-Electric Co. v. FERC, 78 identical rules, one for each
the REA. 18 CFR 5.25(a). The draft EIS F.3d 659 (D.C. Cir. 1996). After a license
or EA must include, for comment, any Department, with this common
has been issued, the license, including preamble. Like the now superseded
preliminary conditions or prescriptions. the Departments’ conditions and
18 CFR 5.25(b). MCRP, the new hearing process
prescriptions, is subject to rehearing established by these rules has been
Comments to the draft EIS or EA must before FERC and subsequent judicial
be filed within 30 or 60 days after carefully crafted to work within FERC’s
review under the FPA’s appeal time frame and NEPA process, while
issuance of the draft, as specified by procedures. The FPA gives the Federal
FERC. 18 CFR 5.25(c). Modified affording interested parties an
appeals courts exclusive jurisdiction opportunity to present evidence on
mandatory conditions and prescriptions over such appeals. 16 U.S.C. 825l(b).
must be filed within 60 days after the disputed issues of material fact with
D. Mandatory Conditions Review respect to the Departments’ conditions
deadline for filing comments, and FERC Process (MCRP). On January 19, 2001,
will issue a final EIS or EA within 90 and prescriptions.
Interior and Commerce established, Key steps in FERC’s time frame, as
days after the deadline for filing the through an interagency policy, the
modified mandatory conditions and related to our hearings and alternatives
MCRP. The MCRP provided license processes, are as follows. This assumes
prescriptions. 18 CFR 5.25(d)–(e). FERC applicants and interested parties an
will then issue the license order that, in a contested case, FERC will
opportunity to review and comment on issue either a draft EA or a draft EIS
including any mandatory conditions the two Departments’ preliminary
and prescriptions. 18 CFR 5.29(h). under 18 CFR 5.25, rather than an EA
conditions and prescriptions for specific not preceded by a draft under 18 CFR
C. Authority for mandatory conditions hydropower licenses. In addition, 5.24.
and prescriptions under the Federal commenters were encouraged to provide 1. FERC issues its REA notice.
Power Act. Provisions of the FPA, 16 additional information regarding the 2. Responses to the REA, including
U.S.C. 791–823c, vest in the Departments’ conditions and the Departments’ preliminary
Departments the authority to provide prescriptions. The MCRP was crafted to conditions and prescriptions, are due 60
conditions and/or prescriptions to be work within FERC’s deadlines and its days later.
included in licenses issued by FERC for process under NEPA, while affording 3. FERC issues its draft NEPA
hydroelectric generating facilities (see interested parties an opportunity to document (EA or EIS) within 180 days
also 18 CFR parts 4, 5, and 16). comment on the record concerning the after the deadline for responses to the
Under section 18 of the FPA, 16 two Departments’ conditions and REA.
U.S.C. 811, Interior, acting through the prescriptions. 4. Comments on the draft NEPA
Fish and Wildlife Service (FWS), and Before finalizing the MCRP, Interior document are due 30–60 days later.
Commerce, acting through the National and Commerce provided a public 5. The Departments’ modified
Marine Fisheries Service (NMFS) within comment period on a draft MCRP. 65 FR conditions and prescriptions are due 60
the National Oceanic and Atmospheric 77889 (Dec. 13, 2000). Many days after the deadline for comments on
Administration (NOAA), may prescribe commenters proposed that the the draft NEPA document.
fishways to provide for the safe, timely, Departments provide, in addition to 6. FERC issues a final NEPA
and effective passage of fish. review and comment, an opportunity for document within 90 days after the
deadline for the modified conditions document, and any alternative F. Overview of the hearing process. As
and prescriptions. conditions and prescriptions. noted previously, section 241 of EPAct
7. FERC issues the license order with 5. The Departments will issue their provides that ‘‘[t]he license applicant
any conditions and prescriptions. modified conditions and prescriptions and any party to the proceeding shall be
Under these rules on trial-type and file their analysis of the alternatives entitled to a determination on the
hearings and alternative conditions and within 60 days of the close of the record, after opportunity for an agency
prescriptions, the following actions will comment period on FERC’s draft NEPA trial-type hearing of no more than 90
occur within the steps listed above for document. days, on any disputed issues of material
FERC’s licensing process. The hearing 5a. FERC will evaluate the modified fact’’ with respect to any Department’s
and alternatives processes are separate conditions and prescriptions in light of conditions or prescriptions. ‘‘All
and distinct, but they have a few the purposes of the FPA and other disputed issues of material fact raised
common points of reference, as noted applicable law. If it finds they are by any party shall be determined in a
below. inconsistent, FERC may refer the matter single trial-type hearing to be conducted
1. FERC issues its REA notice, starting to the DRS. by the relevant resource agency * * *.’’
the 60-day period for responses. 5b. The DRS will consult with the The three Departments are required to
2. By the end of the 60-day period, the Departments and FERC and issue a non- ‘‘establish jointly, by rule, the
Departments will submit any binding advisory within 90 days. procedures for such expedited trial-type
5c. The Departments will consider the hearing, including the opportunity to
preliminary conditions and
DRS advisory and issue a final written undertake discovery and cross-examine
prescriptions they have developed.
determination on the conditions and witnesses * * *.’’
2a. The parties will have 30 days to
prescriptions. In the Departments’ experience, full
request a hearing on any disputed issues 6. FERC will issue its final NEPA
of material fact. The parties will have administrative adjudications involving
document. prehearing conferences, discovery,
the same 30 days to submit alternative 7. FERC will issue the license order
conditions and prescriptions. motions, one or more evidentiary
with any mandatory conditions and hearings, briefing, and a decision often
2b. The parties will have 15 days after prescriptions.
hearing requests are due to file a notice take over a year to complete, especially
This approach has several benefits for if the case involves multiple parties and
of intervention and response with the parties, FERC, and the Departments. complex technical issues. Shortening
regard to any other party’s hearing It provides for the submission of this process to 90 days will be a
request. alternative conditions and prescriptions significant challenge for the parties and
2c. The Departments will have 30 in time for FERC to include them in its the ALJ, and will require adherence to
days after responses are due to draft NEPA document and for the fairly stringent procedural limits and
determine whether to stipulate to some Departments to consider them along deadlines.
or all of the facts alleged to be in dispute with any hearing requests and responses Under these rules, the 90-day period
and to file an answer to the hearing from other parties. This will enable each for the hearing process will commence
request. During the same period, the Department to consider at an early stage when the case is referred to an ALJ for
Departments will consider whether any whether it wants to accept a proposed a hearing, and will end when the ALJ
proposed alternative condition or alternative and possibly avoid the need issues his or her decision. During that
prescription could preclude the need for for a hearing under these rules. Having period, at least one prehearing
a hearing. the hearing requests, responses, and conference will be held; discovery will
2d. If there is still a need for a alternatives together will also assist the be conducted as approved by the ALJ or
hearing, the Departments will refer the Departments in deciding whether to agreed to by the parties; evidence,
case to an administrative law judge stipulate to some facts alleged to be in including direct written testimony and
(ALJ). dispute or otherwise try to narrow the oral cross-examination, will be
2e. Within 90 days, the ALJ will issues to be heard. presented at a hearing; post-hearing
conduct the hearing process on any Moreover, since the hearing process briefs will be filed; and a decision will
disputed issues of material fact. The will be completed by the time FERC be issued by the ALJ.
process will include an initial issues its draft NEPA document, the As described in section II.E. above,
prehearing conference, discovery, an parties will have the benefit of the ALJ’s before the case is referred for a hearing,
evidentiary hearing for the parties to decision in preparing their comments each Department will have filed with
present their evidence and cross- on that document. The Departments will FERC its preliminary conditions or
examine witnesses, the submission of likewise have the ALJ’s decision to use prescriptions, with supporting rationale
post-hearing briefs, and issuance of a in analyzing the alternatives and and an index to the administrative
final decision. developing their modified conditions record of supporting documents. Any
3. FERC will issue its draft NEPA and prescriptions within FERC’s time party to the FERC license proceeding
document, which will include for frame. may then file with the appropriate
comment the Departments’ preliminary In many cases, this sequence and Department a request for hearing,
conditions and prescriptions and any timing will need to be adjusted with identifying the material facts that are
alternatives proposed by the parties. respect to any license application that is disputed regarding the preliminary
4. The parties and the Departments currently pending before FERC, if the conditions or prescriptions. Other
will submit their comments on the draft license applicant or another party wants parties to the license proceeding may
NEPA document, using the facts as a trial-type hearing or wants to submit then submit responses to any hearing
found by the ALJ. an alternative condition or prescription. request and intervene in the hearing
4a. The Departments will consider A number of pending applications are process.
and analyze comments received on their already past the early steps listed above. The Department involved will review
preliminary conditions and In such cases, the Departments will the parties’ submissions to determine
prescriptions, the ALJ’s decision on work with FERC and the parties to fit whether to stipulate to any facts as
disputed issues of material fact, the hearing and alternatives processes stated by the parties, object that any
comments received on the draft NEPA into the remaining steps. issue raised by a party either is not
factual (i.e., is a legal conclusion or a Department will then issue its modified 43 CFR 45.1 What is the purpose of
policy determination) or is not material, conditions or prescriptions and file the this part, and to what license
or agree that the issues raised are written statement required by FPA proceedings does it apply?
factual, material, and disputed. Unless section 33(a)(4) or (b)(4). 50 CFR 221.1 What is the purpose of
all disputed issues have been resolved, The written statement must explain this part, and to what license
the Department will refer the case to an the basis for the modified conditions or proceedings does it apply?
ALJ for a hearing. prescriptions and, if the Department did Paragraph (a) of this section explains
If two or more Departments file not accept an alternative condition or the basic purpose of the trial-type
preliminary conditions and/or prescription, its reasons for not doing hearing regulations. It further explains
prescriptions and receive hearing so. As provided in section 33, the that, if two or more Departments
requests, they will consult with each statement must demonstrate that the consolidate hearing requests involving
other to determine whether the requests Department gave equal consideration to the same license application, the
should be consolidated for hearing. In the effects of its modified conditions or regulations of one Department may
accordance with EPAct, a single hearing prescriptions and any alternatives not govern the steps preceding the referral
will be held for all conditions issued by accepted ‘‘on energy supply, of the case to an ALJ, while the
one Department (section 241(a)) or for distribution, cost, and use; flood (substantively identical) regulations of
all prescriptions issued by one control; navigation; water supply; and another Department may govern the
Department (section 241(b)). While air quality (in addition to the steps following the referral of the case
EPAct does not mandate the preservation of other aspects of to an ALJ. Paragraph (b) explains the
consolidation of hearing requests in environmental quality) * * *.’’ basic purpose of the alternative process
other circumstances, the Departments The requirement for ‘‘equal regulations.
expect to consolidate the cases if there consideration’’ has been construed Paragraph (c) covers situations in
are common issues of fact. In that event, under FPA section 4(e) to mean that which a Department does not exercise
one ALJ would be designated to conduct each factor must be considered equally its authority to submit conditions or
the consolidated hearing on behalf of with the others, i.e., given ‘‘ ‘full and prescriptions for inclusion in the
the Departments involved. genuine consideration * * *’ ’’ State of license, but reserves the authority to do
G. Overview of the alternatives California v. FERC, 966 F.2d 1541, 1550 so during the term of the license, e.g.,
process. While the specific alternatives (9th Cir. 1992), quoting from legislative if conditions change or the Department
process added by section 241 of EPAct history at 123 Cong. Rec. S. 15107. obtains additional information. If the
is new, for years the Departments have ‘‘Equal consideration’’ is not the same as Department notifies FERC that it is
received and considered alternatives ‘‘equal treatment’’; rather the agency reserving its authority, the hearing and
from license parties on an informal ‘‘must balance the public interest in all alternatives processes under these rules
basis, and have revised preliminary of its stated dimensions, give equal will be available to the license parties if
conditions and prescriptions as new consideration to conflicting interests, and when the Department subsequently
information was received. Under the and reach a reasoned factual decision.’’ exercises its reserved authority. The
new process, whether or not a license Id.; accord Conservation Law Found. v. license parties cannot request a hearing
party requests a hearing, it may submit FERC, 216 F.3d 41 (D.C. Cir. 2000); see regarding the reservation of authority
one or more conditions or prescriptions also U.S. Dept. of Interior v. FERC, 952 itself, or submit alternatives to such
for consideration by the appropriate F.2d 538 (D.C. Cir. 1992). reservation.
Department as an alternative to any Paragraph (d) provides that these
preliminary conditions or prescription III. Section-by-Section Analysis regulations apply to any hydropower
that the Department has filed. The There are three different versions of license proceeding for which the license
alternatives are due 30 days after the the regulations that follow for the trial- has not been issued as of the effective
deadline for the Departments to file type hearing and alternatives process, date of these rules and for which the
their preliminary conditions and one version each for Agriculture, Department involved has developed or
prescriptions, which will allow FERC to Interior, and Commerce. The structure develops one or more preliminary
include the alternatives in its draft and content of the regulations are the conditions, conditions, preliminary
NEPA document. same, but there are minor variations to prescriptions, or prescriptions. A cross
If any party has requested a hearing account for differences in the names of reference to 7 CFR 1.604, 43 CFR 45.4,
on disputed issues of material fact with the Departments and their or 50 CFR 221.4 is included for license
respect to a preliminary condition or organizational components. The three applications that are pending as of the
prescription, the ALJ’s decision will versions also vary somewhat in their effective date of these rules.
generally be issued shortly before FERC references to conditions and 7 CFR 1.602 What terms are used in
issues its draft NEPA document. The prescriptions, since Agriculture does this subpart?
Departments will use the comment not develop prescriptions under FPA 43 CFR 45.2 What terms are used in
period on the draft NEPA document to section 18 and Commerce does not this part?
review their preliminary conditions and develop conditions under FPA section 50 CFR 221.2 What terms are used
prescriptions in light of the findings of 4(e), while Interior may do either or in this part?
fact from the ALJ. both. This section defines the meaning of
Within 60 days of the end of the For each section discussed below, the various terms used in the regulations.
comment period on FERC’s draft NEPA CFR title, section number, and heading Most of the definitions provided are
document, each Department will for each Department are shown, 7 CFR self-explanatory, but a few deserve
formally analyze the alternative for Agriculture, 43 CFR for Interior, and further discussion.
conditions and/or prescriptions it has 50 CFR for Commerce. ‘‘Intervention’’ is defined as a process
received, together with the ALJ’s by which a person who did not request
findings of fact, comments received on General Provisions a hearing under 7 CFR 1.621, 43 CFR
the preliminary conditions and 7 CFR 1.601 What is the purpose of 45.21, or 50 CFR 221.21 can participate
prescriptions, and comments received this subpart, and to what license as a party in the hearing by filing a
on FERC’s draft NEPA document. The proceedings does it apply? notice of intervention and response
under 7 CFR 1.622, 43 CFR 45.22, or 50 as a practical matter, there will be no answer. Once the answer is filed in any
CFR 221.22. A person who has ALJ available who could rule on a case, the rest of the hearing process will
intervened in the license proceeding motion for extension of time for these follow the normal schedule set out in
before FERC is not automatically an documents. Extensions of time to file these rules.
intervenor in the hearing process under other documents under the hearing If no hearing request is received but
these regulations; but anyone who has process may be granted by the ALJ, but alternatives are proposed within 30 days
intervened in the license proceeding is only for good cause. of the effective date of these rules, the
eligible to intervene in the hearing 7 CFR 1.604 What deadlines apply Departments will consult with each
process. to pending applications? other to determine whether they have
‘‘Material fact’’ is defined as ‘‘a fact 43 CFR 45.4 What deadlines apply related conditions or prescriptions and
that, if proved, may affect a to pending applications? alternatives that should be considered at
Department’s decision whether to 50 CFR 221.4 What deadlines apply the same time, and they will consult
affirm, modify, or withdraw any to pending applications? with FERC to determine a time frame for
preliminary condition or prescription.’’ This section contains special the alternatives process. They will then
To use a fishway prescription as an applicability provisions for cases in issue notices to the license parties,
example, issues of material fact could which preliminary conditions, informing them of the time frame for the
include but are not limited to issues conditions, preliminary prescriptions, Departments’ filing of modified
such as whether the river has or prescriptions have already been filed conditions and prescriptions under 7
historically been a cold or warm water as of the effective date of these rules, but CFR 1.672(b), 43 CFR 45.72(b), and 50
fishery or whether fish have historically the license has not been issued. CFR 221.72(b).
been found above or below the dam. Normally, parties will have 30 days
from the Departments’ filing of Hearing Process
Such issues, if disputed and material to
the prescription involved in a given preliminary conditions and Representatives
case, appear well suited to the trial-type prescriptions to request a hearing or
7 CFR 1.610 Who may represent a
hearing mandated by EPAct. On the submit alternatives. 7 CFR 1.621, 1.671;
party, and what requirements apply to
other hand, legal or policy issues would 43 CFR 45.21, 45.71; 50 CFR 221.21,
a representative?
not qualify as issues of material fact. 221.71. But in cases currently pending
43 CFR 45.10 Who may represent a
‘‘Party’’ is defined to mean a party to before FERC, the Departments may have
party, and what requirements apply to
the hearing process under these already filed their preliminary
a representative?
regulations, as distinguished from a conditions, conditions, preliminary 50 CFR 221.10 Who may represent a
‘‘license party,’’ which is a party to the prescriptions, or prescriptions by the party, and what requirements apply to
FERC license proceeding. A ‘‘party’’ effective date of these rules. a representative?
includes a license party that requests a Under this section, hearing requests This section identifies who may
hearing under section 7 CFR 1.621, 43 and alternatives in such cases will be represent an individual, partnership,
CFR 45.21, or 50 CFR 221.21, a license due 30 days after the effective date of corporation, governmental unit, or other
party that files a notice of intervention these rules. Any notice of intervention entity. It also provides that each
and response under section 7 CFR and response will be due 15 days representative must file a notice of
1.622, 43 CFR 45.22, or 50 CFR 221.22, thereafter, consistent with 7 CFR 1.622, appearance and may be disqualified by
and the Departmental component that 43 CFR 45.22, and 50 CFR 221.22. the ALJ for misconduct or other good
has filed a preliminary condition or Within the next 75 days, the cause.
prescription in the license proceeding. If Departments will consult with each
two or more hearing requests are other to determine whether to Document Filing and Service
consolidated under 7 CFR 1.623, 43 CFR consolidate any hearing requests they 7 CFR 1.611 What are the form and
45.23, and 50 CFR 221.23, the term may have received, and with FERC to content requirements for documents
‘‘party’’ will also include any other determine a time frame for each hearing under §§ 6.610 through 1.660?
Departmental component involved in process. Depending on how far along 43 CFR 45.11 What are the form and
the hearing. each license proceeding has progressed, content requirements for documents
7 CFR 1.603 How are time periods FERC may need to suspend or extend under this subpart?
computed? the remaining steps to accommodate the 50 CFR 221.11 What are the form
43 CFR 45.3 How are time periods hearing process and alternatives and content requirements for
computed? analysis required by EPAct. documents under this subpart?
50 CFR 221.3 How are time periods If, within the first 30 days after the This section specifies the format,
computed? effective date of these rules, hearing caption, signature, and contact
Paragraph (a) of this section describes requests are filed in a number of cases information requirements for documents
the method for computing time periods with pending applications, it may not be filed under the hearing process. These
under the regulations. Paragraph (b) possible for the Departments and their requirements apply to documents
covers requests for extensions of time. It ALJ offices to handle them all prepared as part of the hearing process,
provides that no extension of time can simultaneously. Thus, the time frames such as a hearing request, notice of
be granted to file a request for a hearing worked out with FERC may provide for intervention and response, answer,
under section 7 CFR 1.621, 43 CFR a staggering of the requested hearing motion, reply, discovery request,
45.21, or 50 CFR 221.21; a notice of processes, with priority being given to discovery response, written testimony,
intervention and response under section cases where the applications are closest or brief. They do not apply to
7 CFR 1.622, 43 CFR 45.22, or 50 CFR to issuance. In that case, the supporting materials prepared
221.22; an answer under section 7 CFR Departments will not necessarily file separately, such as studies, reports,
1.624, 43 CFR 45.24, or 50 CFR 221.24; answers on all hearing requests articles, etc., that the parties may submit
or any document under the alternatives simultaneously. They will, however, as attachments to their hearing process
process. This limitation is necessary to issue notices to the parties in each case documents.
ensure timely completion of the hearing informing them of the time frame for the 7 CFR 1.612 Where and how must
and alternatives processes and because, hearing process and the deadline for the documents be filed?
43 CFR 45.12 Where and how must licensing process, within 30 days of the will be consolidated for hearing, as will
documents be filed? effective date of these regulations). A all hearing requests with respect to any
50 CFR 221.12 Where and how must hearing request must contain a list of prescriptions from the same
documents be filed? the factual issues that the requester Department.
This section establishes requirements disputes; the basis for the requester’s In other circumstances—conditions
for the filing of documents. Each opinion that the facts, as stated by the and prescriptions from the same
Department has designated an office Departmental component, are Department, conditions from more than
where documents must be filed before a unfounded or erroneous; citations to one Department, prescriptions from
case has been referred for docketing and any studies or other documents relied more than one Department, etc.— the
assignment to an ALJ. After the referral, upon, and copies of any such Departments may consolidate the
documents are to be filed with the documents that are not already in the hearings if there are common issues of
appropriate ALJ’s office. Documents record of the license proceeding. The material fact or consolidation is
may be filed by hand delivery, overnight requester must also provide a list of the otherwise appropriate. Consolidation
delivery, or fax and are considered filed witnesses and exhibits it intends to use will often benefit both the Departments
when received. at the hearing; this list will assist other and the parties by avoiding duplication
7 CFR 1.613 What are the parties in planning their discovery. of effort and the risk of inconsistent
requirements for service of documents? 7 CFR 1.622 How do I file a notice results.
43 CFR 45.13 What are the of intervention and response? 7 CFR 1.624 How will the Forest
requirements for service of documents? 43 CFR 45.22 How do I file a notice Service respond to any hearing
50 CFR 221.13 What are the of intervention and response? requests?
requirements for service of documents? 50 CFR 221.22 How do I file a notice 43 CFR 45.24 How will the bureau
This section provides that any request of intervention and response? respond to any hearing requests?
for a hearing and any notice of Under this section, any other party to 50 CFR 221.24 How will NMFS
intervention and response must be the FERC license proceeding may file a respond to any hearing requests?
served on FERC and all parties to the response to the hearing request and a Under this section in the Agriculture
FERC license proceeding. All other filed notice of intervention in the hearing. and Interior regulations, the
documents and all documents issued by The response and notice must be filed Departmental component that filed the
the ALJ must be served on the parties to with the designated Departmental office preliminary condition or prescription at
the hearing. Service generally may be within 15 days after a request for issue must file an answer to any hearing
made by hand delivery, overnight hearing is served. This deadline request within 45 days after the
delivery, fax, or e-mail. A certificate of corresponds to the ILP deadline for deadline for filing any hearing requests
service is required. filing reply comments to the (approximately 30 days after the
preliminary conditions or prescriptions, deadline for filing any notice of
Initiation of Hearing Process i.e., 105 days after the REA notice. 18 intervention and response). The
7 CFR 1.620 What supporting CFR 5.23(a). Commerce regulation is slightly
information must the Forest Service The response may not raise new different, since Commerce does not have
provide with its preliminary conditions? disputed issues of material fact, since a separate office where NMFS would
43 CFR 45.20 What supporting the deadline for doing so (under section file an answer. Rather, NMFS will
information must a bureau provide with 7 CFR 1.621, 43 CFR 45.21, or 50 CFR determine under 50 CFR 221.24 whether
its preliminary conditions or 221.21) will have passed. But the party to file an answer; if it decides to do so,
prescriptions? filing a response may agree with the the answer would be included in the
50 CFR 221.20 What supporting facts as stated either by the referral to the appropriate ALJ’s office
information must NMFS provide with its Departmental component or the hearing under 50 CFR 221.25.
preliminary conditions or prescriptions? requester (or a mix of the two). In any For all three Departments, the answer
Under this section, when a event, the response must explain the must state whether the Departmental
component of any Department files a party’s position with respect to the component is willing to stipulate to the
preliminary condition or prescription information provided by the requester. facts as alleged by the requester,
with FERC, it must provide a supporting The party may either rely on the believes that any issue raised is not
rationale, along with an index to its information provided by the factual or not material, or agrees that the
administrative record that identifies the Departmental component or the issue is disputed, factual, and material.
studies or other documents relied upon. requester or may provide additional The Departmental component must also
7 CFR 1.621 How do I request a information. The party must also indicate whether the hearing request
hearing? provide a list of the witnesses and will be consolidated under section 7
43 CFR 45.21 How do I request a exhibits it intends to use at the hearing. CFR 1.623, 43 CFR 45.23, or 50 CFR
hearing? 7 CFR 1.623 When will hearing 221.23 with any other hearing requests,
50 CFR 221.21 How do I request a requests be consolidated? and must provide a list of the witnesses
hearing? 43 CFR 45.23 When will hearing and exhibits the Departmental
This section provides that any party requests be consolidated? component intends to use at the
to the FERC license proceeding may 50 CFR 221.23 When will hearing hearing.
request a hearing on disputed issues of requests be consolidated? 7 CFR 1.625 What will the Forest
material fact with respect to a This section provides that the Service do with any hearing requests?
preliminary condition or prescription by Departments will confer on any hearing 43 CFR 45.25 What will DOI do with
filing a request with the designated requests they receive, decide whether to any hearing requests?
Departmental office. The request must consolidate them for hearing under 50 CFR 221.25 What will NMFS do
be filed within 30 days after the designated criteria, and if so, decide with any hearing requests?
deadline for filing preliminary which Department’s ALJ will conduct This section in the Agriculture and
conditions or prescriptions with FERC the hearing. As explained previously, all Interior regulations states that, within 5
(or for pending applications that are hearing requests with respect to any days after receipt of the answer, the
already past that point in the FERC conditions from the same Department designated Departmental office will
refer the case to the appropriate successor ALJ, if the ALJ originally be conducted about 20 days after
Department’s ALJ office for a hearing assigned becomes unavailable or unable issuance of the referral notice under
and will notify the parties and FERC of to perform his or her duties. Given the section 7 CFR 1.625, 43 CFR 45.25, or
the referral. The Commerce regulation short time period covered by the hearing 50 CFR 221.25 (approximately 15 days
combines the 45-day answer period and process, it is expected that these after issuance of the docketing notice
the 5-day referral period from the provisions will rarely be used. under section 7 CFR 1.630, 43 CFR
Agriculture and Interior regulations, and 7 CFR 1.633 Under what 45.30, or 50 CFR 221.30). This
states that NMFS will refer the case for circumstances may the ALJ be conference will be critical to the overall
a hearing within 50 days after the disqualified? hearing process.
deadline for filing any hearing requests 43 CFR 45.33 Under what Theoretically, an initial prehearing
and will notify the parties and FERC of circumstances may the ALJ be conference could be held within a few
the referral. disqualified? days after the assignment of an ALJ, but
7 CFR 1.626 What regulations apply 50 CFR 221.33 Under what in fact the parties will need the
to a case referred for a hearing? circumstances may the ALJ be additional time to develop and file their
43 CFR 45.26 What regulations disqualified? discovery requests and objections and
apply to a case referred for a hearing? This section contains standard otherwise prepare for the conference.
50 CFR 221.26 What regulations provisions for disqualification of the Under section 7 CFR 1.641(d), 43 CFR
apply to a case referred for a hearing? ALJ for personal bias or other cause. 45.41(d), or 50 CFR 221.41(d), the
This section explains that the hearing 7 CFR 1.634 What is the law parties must file their discovery motions
will be conducted under the regulations governing ex parte communications? within 7 days after issuance of the
of whichever Department is providing 43 CFR 45.34 What is the law referral notice under section 7 CFR
the ALJ to preside over the hearing. For governing ex parte communications? 1.625, 43 CFR 45.25, or 50 CFR 221.25,
example, a hearing that was requested 50 CFR 221.34 What is the law or approximately 12 days after the
under 7 CFR 1.621 or 50 CFR 221.21 governing ex parte communications? Department files its answer. While the
may be conducted under 43 CFR 45.30 This section contains standard parties can start developing their
et seq., if multiple hearing requests are provisions prohibiting most ex parte discovery requests sooner, they will not
consolidated and assigned to an Interior communications with the ALJ, know until the Department files its
ALJ. consistent with the Administrative answer under section 7 CFR 1.624, 43
General Provisions Related to Hearings Procedure Act. Ex parte inquiries CFR 45.24, or 50 CFR 221.24 what
concerning case status or procedural issues remain in dispute and what
7 CFR 1.630 What will the Office of requirements are generally permitted. witnesses and exhibits the Department
Administrative Law Judges do with a 7 CFR 1.635 What are the intends to present at the hearing. (The
case referral? requirements for motions? parties also cannot file discovery
43 CFR 45.30 What will the Hearings 43 CFR 45.35 What are the motions with the ALJ before any ALJ
Division do with a case referral? requirements for motions? has been assigned to the case under
50 CFR 221.30 What will DOC’s 50 CFR 221.35 What are the section 7 CFR 1.630, 43 CFR 45.30, or
designated ALJ office do with a case requirements for motions? 50 CFR 221.30, which occurs just 2 days
referral? Under this section, any party may
This section provides that, within 5 before the discovery motions are due.)
apply for an order or ruling by Under section 7 CFR 1.641(e), 43 CFR
days after issuance of the referral notice,
presenting a motion to the ALJ in 45.41(e), or 50 CFR 221.41(e), the parties
the appropriate ALJ’s office will docket
writing or at the hearing. Other parties must file any objections to another
the case, assign an ALJ, and issue a
may respond within 10 days, unless party’s discovery motion within 7 days
docketing notice. The ALJ will
another regulation or the ALJ imposes a after service of a discovery motion.
simultaneously issue a notice setting the
different response deadline. The Prior to the initial prehearing
time, place, and method for the initial
expedited nature of the hearings under conference, the parties’ representatives
prehearing conference under section 7
these rules will not allow for an are required to make a good faith effort
CFR 1.640, 43 CFR 45.40, and 50 CFR
extensive motions practice, as may to meet (most likely by telephone) and
221.40.
7 CFR 1.631 What are the powers of occur in other administrative and attempt to reach agreement on discovery
the ALJ? judicial litigation. In particular, the and the schedule of remaining steps in
43 CFR 45.31 What are the powers of rules do not provide for motions for the hearing process. Department counsel
the ALJ? summary decision (comparable to are encouraged to take the lead in
50 CFR 221.31 What are the powers motions for summary judgment under scheduling the meeting of the parties, if
of the ALJ? FRCP 56), since the ALJ will have other representatives do not do so.
This section states that the ALJ will already determined in the initial Agreements reached at the meeting of
have all powers necessary to conduct a prehearing conference that disputed the parties will serve to expedite the
fair, orderly, expeditious, and impartial issues of material fact require a hearing. initial prehearing conference and may
hearing process, including the power to allow the parties to initiate discovery
Prehearing Conferences and Discovery before the conference.
rule on motions, authorize discovery,
regulate the course of hearings, and 7 CFR 1.640 What are the The initial prehearing conference may
issue a decision on the disputed issues requirements for prehearing be held in person, by conference call, or
of material fact. conferences? by other appropriate means. It will be
7 CFR 1.632 What happens if the 43 CFR 45.40 What are the used to identify, narrow and clarify the
ALJ becomes unavailable? requirements for prehearing disputed issues of material fact; to rule
43 CFR 45.32 What happens if the conferences? on the parties’ motions for discovery
ALJ becomes unavailable? 50 CFR 221.40 What are the (and objections thereto) and to set a
50 CFR 221.32 What happens if the requirements for prehearing deadline for the completion of
ALJ becomes unavailable? conferences? discovery; to discuss the evidence on
This section contains standard Paragraph (a) of this section provides which each party intends to rely at the
provisions for appointment of a for an initial prehearing conference to hearing; to set the deadline for
submission of written testimony under and requests for documents or tangible 50 CFR 221.52, the direct testimony of
section 7 CFR 1.652, 43 CFR 45.52, or things or for entry on land. The other such witnesses must be submitted in
50 CFR 221.52; and to set the date, time, main discovery tool under the FRCP, writing, generally 10 days before the
and place of the hearing. The conference requests for admission, has been hearing.
may also be used to discuss limiting and omitted as unnecessary in the context of Paragraph (h)(3) provides that a party
grouping witnesses to avoid these hearings. The parties will have may depose a senior Department
duplication; to discuss stipulations of just completed their exchange of hearing employee only if the party shows that
fact and of the content and authenticity requests, responses, and answers, the employee’s testimony is necessary to
of documents; to consider requests that specifying what facts they agree to or provide significant information that is
the ALJ take official notice of public dispute; and the ALJ will use the initial not available from any other source or
records or other matters; to discuss the prehearing conference to further by less burdensome means and that the
submission of documents in electronic identify, narrow, and clarify the deposition would not significantly
form; and to consider any other matters disputed issues and encourage interfere with the employee’s ability to
that may aid in the disposition of the stipulations. Under these circumstances, perform his or her government duties.
case. little if anything would be gained by the This limitation is based on case law
Under paragraph (b) of this section, use of requests for admission. under the FRCP, e.g., Jones v.
the ALJ may schedule other prehearing The ALJ will authorize discovery Hirschfeld, 219 F.R.D. 71 (S.D.N.Y.
conferences as needed. Under paragraph requested by a party only if the ALJ 2003); Alexander v. Federal Bureau of
(g), within 2 days of the conclusion of determines that the criteria in paragraph Investigation, 186 F.R.D. 1 (D.D.C.
any conference, the ALJ will issue an (b) of this section have been met. These 1998).
order setting forth any agreements criteria include that the discovery will Under paragraph (i) of this section, all
reached by the parties and any rulings not unreasonably delay the hearing discovery agreed to by the parties or
made by the ALJ. process; that the scope of the discovery approved by the ALJ must be completed
7 CFR 1.641 How may parties obtain is not unduly burdensome; that the within 25 days after the initial
discovery of information needed for the discovery method to be used is the least prehearing conference, unless the ALJ
case? burdensome method available; and that sets a different deadline.
43 CFR 45.41 How may parties the information sought is not already in 7 CFR 1.642 When must a party
obtain discovery of information needed the record of the license proceeding or supplement or amend information it has
for the case? otherwise obtainable by the party. previously provided?
50 CFR 221.41 How may parties These criteria are needed to keep the 43 CFR 45.42 When must a party
obtain discovery of information needed discovery process within reasonable supplement or amend information it has
for the case? bounds, in light of the tight time previously provided?
This section provides that parties may constraints applicable to the hearing. 50 CFR 221.42 When must a party
obtain discovery by agreement of the The criteria reflect the facts that the supplement or amend information it has
parties or by filing a motion within 7 FERC license proceeding has been previously provided?
days after issuance of the referral notice underway for over 3 years by this point; Paragraph (a) of this section states that
under section 7 CFR 1.625, 43 CFR the parties have been dealing with each a party must supplement or amend its
45.25, or 50 CFR 221.25. Any proposed other extensively throughout that discovery responses if it learns that a
discovery request must be attached to period; the great bulk of the relevant prior response is incorrect or
the motion. Other parties may file information has already been filed in incomplete.
objections within 7 days after service of the record of that proceeding; and the Paragraph (b) gives the parties 5 days
a discovery motion. The ALJ will rule parties will have identified any after the completion of discovery to
on the motions and objections during or additional information they may have in update their witness and exhibit lists. If
promptly after the initial prehearing their hearing requests, responses, and a party wishes to include any new
conference. answers. Consequently, there should be witness or exhibit on its updated list, it
Under the Federal Rules of Civil very little new information that the must provide an explanation of why the
Procedure (FRCP), the parties may parties would need to uncover through witness or exhibit was not included on
initiate discovery on their own, without an unfettered discovery process, even if the original list filed under section 7
needing permission from the judge or there was time for it. CFR 1.621, 43 CFR 45.21, or 50 CFR
agreement from other parties, and Paragraphs (f) and (g) of this section 221.21; 7 CFR 1.622, 43 CFR 45.22, or
discovery often takes months to contain standard limitations on a party’s 50 CFR 221.22; or 7 CFR 1.624, 43 CFR
complete. Local court rules typically set ability to discover materials prepared by 45.24, or 50 CFR 221.24. Paragraph (c)
limits on discovery; but generally ample another party for the hearing or facts provides for sanctions for a party’s
time is available for the parties to known or opinions held by another failure to disclose information as
propound discovery, seek protective party’s expert. Paragraph (h) limits required, unless the failure was
orders, submit responses and objections, depositions to witnesses who will be substantially justified or is harmless.
file motions to compel, etc. The unavailable to testify at the hearing. 7 CFR 1.643 What are the
expedited nature of the trial-type This limitation will further reduce the requirements for written interrogatories?
hearing under these regulations cannot time needed for discovery and the 43 CFR 45.43 What are the
accommodate such a protracted burden on the parties, who could requirements for written interrogatories?
discovery process. As a result, the initial otherwise face the prospect of multiple 50 CFR 221.43 What are the
prehearing conference will be used as depositions at multiple locations around requirements for written interrogatories?
necessary to regulate the course of the country during a very limited time If the ALJ grants a motion for the use
discovery and deal with disputes ‘‘up period, while simultaneously of interrogatories, this section provides
front’’ to the extent possible. responding to interrogatories, requests that the other party must file its answers
Paragraph (a) of this section lists the for documents, etc. There is also less within 15 days. If the information
following methods of discovery, as need to depose witnesses who will be requested could be obtained from a
limited by this section, as available to presented at the hearing, since under review of documents, the other party
the parties: interrogatories, depositions, section 7 CFR 1.652, 43 CFR 45.52, or may provide access to the documents,
rather than compiling the information Hearing, Briefing, and Decision notice of public documents, and using
for the requesting party. 7 CFR 1.650 When and where will stipulations regarding facts or the
7 CFR 1.644 What are the the hearing be held? authenticity of documents.
requirements for depositions? 7 CFR 1.655 What evidence is
43 CFR 45.50 When and where will
43 CFR 45.44 What are the admissible at the hearing?
the hearing be held? 43 CFR 45.55 What evidence is
requirements for depositions? 50 CFR 221.50 When and where will
50 CFR 221.44 What are the admissible at the hearing?
the hearing be held? 50 CFR 221.55 What evidence is
requirements for depositions? This section states that the hearing
If the ALJ grants a motion to depose admissible at the hearing?
will be held at the time and place set This section contains standard
a person, this section provides that the during the prehearing conference, provisions on the admissibility of
party taking the deposition must arrange generally within 15 days after the written, oral, documentary, or
and pay for the reporter. Other standard completion of discovery, unless the ALJ demonstrative evidence that is relevant,
provisions relating to the taking, orders otherwise. reliable, and probative, and not
transcription, and signing of a 7 CFR 1.651 What are the parties’ privileged or unduly repetitious or
deposition are detailed. If approved by rights during the hearing? cumulative. As is typical in
the ALJ, a deposition may be taken by 43 CFR 45.51 What are the parties’ administrative proceedings, the rules of
conference call or may be video rights during the hearing? evidence used in Federal courts do not
recorded. 50 CFR 221.51 What are the parties’ apply, and hearsay evidence is
7 CFR 1.645 What are the rights during the hearing? admissible. However, the Federal Rules
requirements for requests for documents This section acknowledges the of Evidence may be used as guidance by
or tangible things or entry on land? parties’ rights at the hearing to present the ALJ and the parties in determining
43 CFR 45.45 What are the direct and rebuttal evidence; to make what evidence is relevant, reliable,
requirements for requests for documents objections, motions, and arguments; and probative, and not privileged.
or tangible things or entry on land? to cross-examine witnesses. Evidentiary objections will be ruled on
50 CFR 221.45 What are the 7 CFR 1.652 What are the by the ALJ.
requirements for requests for documents requirements for presenting testimony? 7 CFR 1.656 What are the
or tangible things or entry on land? 43 CFR 45.52 What are the requirements for transcription of the
If the ALJ grants a motion to use requirements for presenting testimony? hearing?
requests for production of documents or 50 CFR 221.52 What are the 43 CFR 45.56 What are the
tangible things or entry on land, this requirements for presenting testimony? requirements for transcription of the
section provides that the other party Paragraph (a) of this section requires hearing?
must file a response within 15 days. the parties to submit any direct 50 CFR 221.56 What are the
7 CFR 1.646 What sanctions may the testimony in writing within 5 days after requirements for transcription of the
ALJ impose for failure to comply with the date set for completion of discovery hearing?
discovery? (generally 10 days before the hearing). This section contains standard
43 CFR 45.46 What sanctions may Submission of written direct testimony provisions on transcripts and reporter’s
the ALJ impose for failure to comply in advance will assist the parties in fees, including correction of the
with discovery? preparing their cases and will expedite transcript.
50 CFR 221.46 What sanctions may the hearing process, given the short time 7 CFR 1.657 What is the standard of
the ALJ impose for failure to comply available for both discovery and the proof?
with discovery? hearing. 43 CFR 45.57 What is the standard
This section states that, if a party fails Under paragraph (b), cross- of proof?
to comply with an order approving examination and re-direct will be 50 CFR 221.57 What is the standard
discovery, the ALJ may impose conducted orally at the hearing. Under of proof?
appropriate sanctions, such as not paragraph (c), the ALJ may allow a In accordance with the holding in
allowing the party to introduce evidence witness to testify by conference call. Steadman v. SEC, 450 U.S. 91 (1981),
that was improperly withheld or 7 CFR 1.653 How may a party use a this section establishes that the standard
inferring that the information withheld deposition in the hearing? of proof is a preponderance of the
would have been adverse to the party. 43 CFR 45.53 How may a party use evidence.
7 CFR 1.647 What are the Comments are sought on the separate
a deposition in the hearing?
requirements for subpoenas and witness question of who bears the burden of
50 CFR 221.53 How may a party use
fees? proof.
a deposition in the hearing? 7 CFR 1.658 When will the hearing
43 CFR 45.47 What are the This section contains standard record close?
requirements for subpoenas and witness provisions for the admissibility of a 43 CFR 45.58 When will the hearing
fees? deposition of a witness who is record close?
50 CFR 221.47 What are the unavailable to testify at the hearing. 50 CFR 221.58 When will the
requirements for subpoenas and witness 7 CFR 1.654 What are the hearing record close?
fees? requirements for exhibits, official notice, This section states that the hearing
This section contains standard and stipulations? record will close when the ALJ closes
provisions regarding the issuance, 43 CFR 45.54 What are the the hearing, unless he or she directs
service, and enforcement of a subpoena, requirements for exhibits, official notice, otherwise. No evidence may be
to the extent authorized by law; and stipulations? submitted once the record closes.
payment of witness fees; and motions to 50 CFR 221.54 What are the 7 CFR 1.659 What are the
quash. A limitation on subpoenaing requirements for exhibits, official notice, requirements for post-hearing briefs?
senior Department employees is and stipulations? 43 CFR 45.59 What are the
included, comparable to 7 CFR This section contains standard requirements for post-hearing briefs?
1.641(h)(3), 43 CFR 45.41(h)(3), or 50 provisions on marking and offering 50 CFR 221.59 What are the
CFR 221.41(h)(3) discussed above. exhibits, asking the ALJ to take official requirements for post-hearing briefs?
Under this section, each party may substantive legal rulings or any order, Under paragraph (a) of this section,
file an initial post-hearing brief within sanction, etc. The ALJ’s decision will any license party may propose an
10 days after the close of the hearing, not resolve, even provisionally, the alternative within 30 days of the
unless the ALJ sets a different deadline. overall dispute among the parties over deadline for the Departments to file
Reply briefs may be filed only if the preliminary conditions and their preliminary conditions and
requested by the ALJ. Form and content prescriptions. At most, the ALJ is prescriptions. Paragraph (b) specifies
requirements for briefs are specified. providing a definitive view of the facts what must be included in a proposal for
7 CFR 1.660 What are the underlying the dispute, to be used by an alternative. The license party must
requirements for the ALJ’s decision? the parties in submitting their include a description of the alternative
43 CFR 45.60 What are the comments, the Departments in and an explanation of how the
requirements for the ALJ’s decision? analyzing alternatives and developing alternative meets the criteria set out in
50 CFR 221.60 What are the modified conditions and prescriptions, FPA section 33.
requirements for the ALJ’s decision? and FERC in finalizing its NEPA 7 CFR 1.672 What will the Forest
This section provides that the ALJ document. Service do with a proposed alternative?
must issue a decision within 30 days 43 CFR 45.72 What will the bureau
Practical considerations also militate
after the close of the hearing or 90 days do with a proposed alternative?
against any appeal of the ALJ’s decision.
after issuance of the referral notice, 50 CFR 221.72 What will NMFS do
Section 241 of EPAct requires that the
whichever occurs first. The decision with a proposed alternative?
trial-type hearing be conducted within
must contain findings of fact on all Within 60 days after the close of the
90 days and within FERC’s time frame
disputed issues of material fact; comment period on FERC’s NEPA
for the license proceeding, and there is
incidental conclusions of law necessary document, the Department must analyze
not enough time available to also
to make the findings of fact (e.g., rulings the alternatives it has received, and file
include an appeals process, with
on materiality); and reasons for the with FERC its modified conditions or
additional briefing, analysis, and
findings and conclusions. The decision prescription. Based on the information
will not contain conclusions as to decision by an appellate body.
Moreover, in the case of a consolidated available to it, the Department could
whether any preliminary condition or adopt as a modified condition or
prescription should be adopted, hearing, it is not clear what appellate
body would consider the appeal, or prescription its original preliminary
modified, or rejected because that is a condition or prescription, an alternative,
matter for the exercise of the whether each Department involved
would need to review the ALJ’s decision or a new condition or prescription. The
Departments’ judgment in light of the Department must also file its analysis of
ALJ’s findings and other available separately, with the potential for
inconsistent results. the modified condition or prescription
information (including any alternative and of any proposed alternatives.
conditions or prescriptions and Paragraph (d) of this section further
Of course, a party that proposed an
supporting information submitted by provides that, to the extent the ALJ’s
alternative may in some cases choose to
the parties). decision forms the basis for any
withdraw the alternative in response to
Under paragraph (c) of this section, condition or prescription subsequently
the ALJ’s findings. In that case, no
the ALJ will serve the decision on each included in the license, it may be
comparison between the preliminary
party to the hearing and forward a copy subject to judicial review under 16
condition or prescription and the
of the decision to FERC, along with the U.S.C. 825l(b). Even though, with
withdrawn alternative would be
complete hearing record, for inclusion respect to the disputed issues of
necessary.
in the license proceeding record. material fact, the ALJ’s decision will be 7 CFR 1.673 How will the Forest
Paragraph (d) provides that the ALJ’s final for the Departments involved, it Service analyze a proposed alternative
decision will be final, with respect to will not be ripe for judicial review until and formulate its modified condition?
the disputed issues of material fact, for the Departments complete their process 43 CFR 45.73 How will the bureau
any Department involved in the hearing. of modifying conditions and analyze a proposed alternative and
The ALJ’s decision must be considered prescriptions and FERC issues the formulate its modified condition or
in deciding whether to accept an license order. prescription?
alternative in accordance with 7 CFR Alternatives Process 50 CFR 221.73 How will NMFS
1.673, 43 CFR 45.73, or 50 CFR 221.73. analyze a proposed alternative and
In a normal adjudication under the 7 CFR 1.670 How must documents formulate its modified condition?
Administrative Procedure Act, an ALJ be filed and served under §§ 1.670 Paragraph (a) of this section provides
issues an initial or recommended through 1.673? that, in deciding whether to adopt a
decision that is subject to appeal or 43 CFR 45.70 How must documents proposed alternative, the Department
review within the agency. 5 U.S.C. be filed and served under this subpart? must consider all available evidence,
557(b). Even under section 557(b), 50 CFR 221.70 How must documents including information from any license
however, an agency can limit the issues be filed and served under this subpart? party and FERC, comments received on
it will review on appeal, including This section contains filing and the Department’s preliminary condition
denying any appeal from findings of service requirements for documents or prescription and on FERC’s NEPA
fact. Attorney General’s Manual on the relating to the alternatives process. document, findings of fact from the ALJ,
Administrative Procedure Act 84 (1947); There are no special requirements for and the information provided in support
3 Kenneth Culp Davis, Administrative format, caption, or signature, as there of the alternative under 7 CFR 1.671, 43
Law Treatise § 17.14 (2d ed. 1980). are for documents relating to the hearing CFR 45.71, or 50 CFR 221.71.
Here, the ALJ is not issuing a normal process. Consistent with FPA section 33,
decision, which under section 557(c) 7 CFR 1.671 How do I propose an paragraph (b) states that the Department
includes findings of fact, conclusions of alternative? must adopt a proposed alternative if it
law on substantive issues, and an 43 CFR 45.71 How do I propose an will either cost significantly less to
‘‘appropriate rule, order, sanction, relief, alternative? implement or result in improved
or denial thereof.’’ Rather, the ALJ is 50 CFR 221.71 How do I propose an operation of the project works for
providing findings of fact, without alternative? electricity production, and if it will
either provide for the adequate publish a final rule, especially given the parties to the alternatives process. Staff
protection and utilization of the need for interagency coordination at costs for 47 hearing requests and 351
reservation under FPA section 4(e) or be each step of the process. In addition to alternatives per year are estimated at $5
no less protective than the fishway meeting the statutory mandate, the million and hence clearly fall well short
developed by the Department. Departments find that it is in the public of $100 million. This conclusion also
Paragraphs (c) and (d) specify what interest to promulgate these regulations holds in a worst-case analysis: if a
information the Department must file promptly, so that (a) parties in hearing was requested and an
with FERC along with its modified hydropower license proceedings can alternative was proposed for every set of
condition or prescription. This includes avail themselves of the new trial-type preliminary conditions or prescriptions,
a written statement demonstrating that hearing right and alternatives process there would be about 97 hearings per
the Department gave equal established in EPAct and (b) delays in year and 701 alternatives to analyze.
consideration to the effects of the the FERC licensing process can be Furthermore, because the decision to
modified condition or prescription and avoided or minimized. request a hearing or propose an
any alternative not adopted on energy B. Decision to make the rules effective alternative is entirely at the discretion of
supply, distribution, cost, and use; flood upon publication. Under 5 U.S.C. the party, any cost to the party will be
control; navigation; water supply; air 553(d)(3), the Departments for good incurred only when the party decides
quality; and the preservation of other cause find that these rules should be that the cost will be justified by the
aspects of environmental quality. made effective upon publication in the benefits of the process.
7 CFR 1.674 Has OMB approved the Federal Register, rather than after the 2. These rules will not create
information collection provisions of usual 30-day period. This finding is inconsistencies with or interfere with
§§ 1.670 through 1.673? based on the same reasons that support other agencies’ actions. Agencies other
43 CFR 45.74 Has OMB approved the finding of good cause under section than the three Departments and FERC
the information collection provisions of 553(b)(B), explained above. As noted will not be affected by the hearing
this subpart? previously, there are a number of process authorized by the rules; and the
50 CFR 221.74 Has OMB approved license applications currently pending rules have been crafted to avoid any
the information collection provisions of before FERC to which EPAct’s trial-type inconsistencies or interference with the
this subpart? hearing right and alternatives process actions of the three Departments and
This section informs the public of the apply. Section 241 of EPAct requires the FERC.
Departments’ compliance with the Departments to fit the hearing process 3. These rules will not alter the
Paperwork Reduction Act of 1995 and of into FERC’s time frame for the license budgetary effects of entitlements, grants,
the control number that the Office of proceeding, and delaying the effective user fees, loan programs, or the rights
Management and Budget (OMB) has date of these rules would only increase and obligations of their recipients.
issued for information collection related the number of cases in which the FERC These rules pertain only to the hearing
to the alternatives process. licensing time frame would need to be procedures implementing recent
adjusted to accommodate a hearing amendments to the FPA, not to
IV. Consultation With FERC entitlements, grants, user fees, loan
request and/or the alternatives process.
Pursuant to EPAct’s requirement that C. Regulatory Planning and Review programs, or the rights and obligations
the agencies promulgate these rules ‘‘in (E.O. 12866). The rules in this document of their recipients.
consultation with the Federal Energy are significant. Although these rules 4. The assessment of OMB is that the
Regulatory Commission,’’ the agencies will not have an adverse effect or an rules raise novel policy issues, in that
have consulted with FERC regarding the annual effect of $100 million or more on the expedited trial-type hearing process
content of these rules. the economy, OMB has determined that represents a novel approach to public
the procedures for an expedited trial- participation and administrative review.
V. Procedural Requirements D. Regulatory Flexibility Act. The
type hearing on disputed issues of
A. Decision to issue interim final rules material fact represent a novel approach Departments certify that these rules will
with request for comments. These to public participation and not have a significant economic effect
regulations are being published as administrative review and have on a substantial number of small entities
interim final rules with request for interagency implications. Therefore, under the Regulatory Flexibility Act, 5
comments, and without prior notice and OMB has reviewed these rules under U.S.C. 601 et seq.
comment, under 5 U.S.C. 553(b)(A) and Executive Order 12866. These rules will not affect a
(B). Under section 553(b)(A), 1. These rules will not have an annual substantial number of small entities.
interpretative rules and rules of agency economic effect of $100 million or According to the Small Business
procedure or practice, like the adversely affect an economic sector, Administration, for NAICS code 221111,
regulations in these interim final rules, productivity, competition, jobs, the hydroelectric power generation, a firm
do not require a notice of proposed environment, public health or safety, or is small if, including its affiliates, its
rulemaking. other units of government. A cost- total electric output for the preceding
Moreover, under section 553(b)(B), benefit and economic analysis is not fiscal year did not exceed 4 million
the Departments for good cause find that required. megawatt hours. Although the regulated
prior notice and comment are The Departments expect about 47 community of FERC licensees does
impracticable and contrary to the public requests for hearing per year under the include a substantial number of small
interest. Section 241 of EPAct requires rules, each requiring about 800 hours of entities, the number of affected entities
the Departments to promulgate these additional work by the requesters and in a given year is likely to be small,
rules jointly, in consultation with FERC, 600 hours for other parties to the perhaps three to six per year.
within 90 days of enactment of the hearing process. The Departments More important, the effect of the rules
statute. It would not be possible to meet expect about 351 alternative conditions on small entities will not be significant.
that deadline if the Departments had to and prescriptions to be proposed per Any entity affected by these rules will
publish a proposed rule, allow the year under the rules, each requiring have already been heavily involved in a
public sufficient time to submit about 200 hours of additional work by FERC hydropower licensing proceeding,
comments, analyze the comments, and the proponent and 120 hours for other submitting and commenting on
information in the record of that Therefore, a statement containing the a Federal agency may not conduct or
proceeding. These rules merely provide information required by the Unfunded sponsor, and a person is not required to
an additional administrative procedure, Mandates Reform Act is not required. respond to, a collection of information
should the entity choose to use it, to G. Takings (E.O. 12630). In unless it displays a currently valid OMB
obtain a definitive ruling on disputed accordance with Executive Order 12630, control number that indicates OMB
issues of material fact with respect to the Departments conclude that these approval. OMB has reviewed the
conditions and prescriptions to be rules will not have significant takings information collection in these rules on
included in the license. Any cost to the implications. The conditions and an emergency basis and approved it
entity will be incurred only when it prescriptions included in hydropower under OMB control number 1094–0001.
decides that the cost will be justified by licenses relate to operation of This approval expires May 31, 2006.
the benefits of the process. For these hydropower facilities on resources not The purpose of the information
reasons, the rules will not have a owned by the applicant, i.e., public collection in this rulemaking is to
significant economic effect. waterways and/or reservations. provide an opportunity for license
E. Small Business Regulatory Therefore, these rules will not result in parties to propose an alternative
Enforcement Fairness Act. These rules a taking of private property, and a condition or prescription. Responses to
are not major under the Small Business takings implication assessment is not this information collection are
Regulatory Enforcement Fairness Act, 5 required. voluntary. We estimate that an average
U.S.C. 804(2). H. Federalism (E.O. 13132). In of 351 alternatives will be submitted per
1. As explained above, these rules accordance with Executive Order 13132, year over the next 3 years. We estimate
will not have an annual effect on the the Departments find that these rules do that the average burden for preparing
economy of $100 million or more. not have sufficient federalism and submitting an alternative will be
2. These rules will not cause a major implications to warrant the preparation 200 hours; thus, the total information
increase in costs or prices for of a Federalism Assessment. There is no collection burden of this rulemaking is
consumers, individual industries, foreseeable effect on States from about 70,200 hours per year.
Federal, State, or local government establishing hearing procedures for Because this information collection
agencies, or geographic regions. A disputed issues of material fact was approved on an emergency basis,
hearing process for disputed issues of regarding Departmental conditions and the OMB approval will expire in 6
material fact with respect to the prescriptions. The rules will not have months. We will be requesting a 3-year
Departments’ conditions and substantial direct effects on the States, extension from OMB for this collection
prescriptions will not affect costs or on the relationship between the national in accordance with the normal process
prices. government and the States, or on the for renewing an information collection
3. These rules will not have distribution of power and approval. The first step in this renewal
significant, adverse effects on responsibilities among the various process is to request, via a Federal
competition, employment, investment, levels of government. The rules will not Register notice, public comments on the
productivity, innovation, or the ability preempt State law. Therefore, a information collection. We are hereby
of United States-based enterprises to Federalism Assessment is not required. doing so. In particular, we request your
compete with foreign-based enterprises. I. Civil Justice Reform (E.O. 12988). In comments on (1) whether the collection
Implementing recent amendments to the accordance with Executive Order 12988, of information is necessary and
FPA by establishing the hearing the Departments have determined that appropriate for its intended purpose; (2)
procedures in these rules should have these rules will not unduly burden the the accuracy of our estimate of the
no effects, adverse or beneficial, on judicial system and that they meet the burden; (3) ways to enhance the quality,
competition, employment, investment, requirements of sections 3(a) and 3(b)(2) utility, and clarity of the information
productivity, innovation, or the ability of the Order. The rules provide clear collected; and (4) ways to minimize the
of United States-based enterprises to language as to what is allowed and what burden on the respondents of the
compete with foreign-based enterprises. is prohibited. Litigation regarding FERC collection of information, including the
F. Unfunded Mandates Reform Act. In hydropower licenses currently begins possible use of automated collection
accordance with the Unfunded with a rehearing before FERC and then techniques or other forms of information
Mandates Reform Act, 2 U.S.C 1531 et moves to Federal appeals court. By technology.
seq., The Departments find that: offering a trial-type hearing on disputed Please submit your comments by
1. These rules will not have a issues of material fact with respect to January 17, 2006 using one of the
significant or unique effect on State, conditions and prescriptions developed methods listed in the ADDRESSES section
local, or Tribal governments or the by the Departments, the rules will likely above.
private sector. result in a decrease in the number of If you would like a copy of our
2. These rules will not produce an proceedings that are litigated. submission to OMB that requested
unfunded Federal mandate of $100 J. Paperwork Reduction Act. With emergency approval of this information
million or more on State, local, or Tribal respect to the hearing process, these collection, which includes the OMB
governments in the aggregate or on the rules are exempt from the requirements Form 83–I and supporting statement,
private sector in any year; i.e., they do of the Paperwork Reduction Act, 44 please contact Larry Finfer as listed in
not constitute a ‘‘significant regulatory U.S.C. 3501 et seq. (PRA), because they the FOR FURTHER INFORMATION CONTACT
action’’ under the Unfunded Mandates will apply to the conduct of agency section above. A copy will be sent to
Reform Act. State, local, and Tribal administrative proceedings involving you at no charge.
governments routinely file comments on specific individuals and entities. 44 K. National Environmental Policy Act.
the Departments’ licensing conditions U.S.C. 3518(c); 5 CFR 1320.4(a)(2). The Departments have analyzed their
under the existing MCRP policy. The However, with respect to the respective rules in accordance with
new opportunity for a hearing will be alternatives process, these rules contain NEPA, Council on Environmental
available to a State, local, or Tribal provisions that would collect Quality (CEQ) regulations, 40 CFR part
government only if it is a party to the information from the public, and 1500, and the Departments’ internal
license proceeding and chooses to therefore require approval from OMB NEPA guidance. CEQ regulations, at 40
participate in the hearing process. under the PRA. According to the PRA, CFR 1508.4, define a ‘‘categorical
exclusion’’ as a category of actions that attributable largely to increased flows to Dated: November 9, 2005.
a department has determined ordinarily protect aquatic resources, was 1.59 David P. Tenny,
do not, individually or cumulatively, percent. (Report on Hydroelectric Deputy Undersecretary—Natural Resources
have a significant effect on the human Licensing Policies, Procedures, and and Environment, U.S. Department of
environment. The regulations further Regulations: Comprehensive Review Agriculture.
direct each department to adopt NEPA and Recommendations Pursuant to Dated: November 8, 2005.
procedures, including categorical Section 603 of the Energy Act of 2000, P. Lynn Scarlett,
exclusions. 40 CFR 1507.3. prepared by the staff of the Federal
Each Department has determined that Assistant Secretary—Policy, Management
Energy Regulatory Commission, May and Budget, U.S. Department of the Interior.
these rules are categorically excluded
2001.) Since the licensing process itself
from further environmental analysis Dated: November 8, 2005.
under NEPA in accordance with its own has such a modest energy impact, these
rules, which affect only the James W. Balsiger,
authorities, listed below. These rules Acting Deputy Assistant Administrator for
promulgate regulations of an Departments’ administrative review
Regulatory Programs, National Marine
administrative and procedural nature procedures, are not expected to have a
Fisheries Service, National Oceanic and
relating to trial-type hearings and the significant impact under the Executive Atmospheric Administration, U.S.
submission and analysis of alternatives Order (i.e., reductions in electricity Department of Commerce.
as mandated under FPA, as amended by production in excess of 1 billion
■ For the reasons set forth in the
EPAct. They do not individually or kilowatt-hours per year or in excess of
preamble, the Departments of
cumulatively have a significant impact 500 megawatts of installed capacity).
Agriculture, the Interior, and Commerce
on the human environment and, N. Clarity of These Regulations. amend titles 7, 43, and 50 of the Code
therefore, neither an EA nor an EIS Executive Order 12866 requires each of Federal Regulations as set forth
under NEPA is required. The relevant agency to write regulations that are easy below.
authorities for each Department are as
to understand. We invite your
follows: Department of Agriculture
Agriculture: 7 CFR 1b.3(b); Forest comments on how to make these rules
Service Handbook 1909.15, 31.12. easier to understand, including answers 7 CFR Subtitle A
Interior: 516 Departmental Manual 2, to the following questions: (1) Are the
requirements in the rules clearly stated? PART 1—ADMINISTRATIVE
Appendices 1–2.
Commerce: NOAA Administrative (2) Do the rules contain technical REGULATIONS
Order 216–6, sections 5.05 and language or jargon that interferes with ■ 1. The Department of Agriculture adds
6.03c3(i). their clarity? (3) Does the format of the subpart O to part 1, title 7, to read as
L. Government-to-Government rules (grouping and order of sections, follows:
relationship with Indian Tribes. In use of headings, paragraphing, etc.) aid
accordance with the President’s or reduce their clarity? (4) Would the Subpart O—Conditions in FERC
memorandum of April 29, 1994, rules be easier to understand if they Hydropower Licenses
‘‘Government-to-Government Relations were divided into more (but shorter)
with Native American Tribal General Provisions
sections? (A ‘‘section’’ appears in bold
Governments,’’ 59 FR 22951 (May 4, type and is preceded by the symbol ‘‘§ ’’ Sec.
1994), supplemented by Executive 1.601 What is the purpose of this subpart,
and a numbered heading, for example, and to what license proceedings does it
Order 13175, Consultation and
§ 1.602 What terms are used in this apply?
Coordination with Indian Tribal
Governments, 65 FR 67249 (Nov. 6, subpart?) (5) Is the description of the 1.602 What terms are used in this subpart?
rules in the SUPPLEMENTARY INFORMATION 1.603 How are time periods computed?
2000), the Departments have assessed 1.604 What deadlines apply to pending
the impact of these rules on Tribal trust section of the preamble helpful in
understanding the rules? (6) What else applications?
resources and have determined that they
do not directly affect Tribal resources. could we do to make the rules easier to Hearing Process
The rules are procedural and understand? Representatives
administrative in nature. However, List of Subjects in 7 CFR Part 1, 43 CFR 1.610 Who may represent a party, and what
conditions and actions associated with Part 45, 50 CFR Part 221 requirements apply to a representative?
an actual hydropower licensing
proposal may directly affect Tribal Document Filing and Service
Administrative practice and
resources; therefore the Departments procedure, Fisheries, Hydroelectric 1.611 What are the form and content
will consult with Tribal governments requirements for documents under
power, Indians—lands, National forests, §§ 1.611 through 1.660?
when developing section 4(e) conditions National parks, National wildlife refuge 1.612 Where and how must documents be
and section 18 prescriptions needed to system, Public land, Waterways, filed?
address the management of those Wildlife. 1.613 What are the requirements for service
resources. of documents?
M. Effects on the Nation’s Energy
Supply. In accordance with Executive Initiation of Hearing Process
Order 13211, the Departments find that 1.620 What supporting information must
these rules will not have substantial the Forest Service provide with its
direct effects on energy supply, preliminary conditions?
distribution, or use, including shortfall 1.621 How do I request a hearing?
1.622 How do I file a notice of intervention
in supply or price increase. Recent and response?
analysis by FERC has found that, on 1.623 When will hearing requests be
average, installed capacity increased consolidated?
through licensing by 4.06 percent, and 1.624 How will the Forest Service respond
the average annual generation loss, to any hearing requests?
1.625 What will the Forest Service do with General Provisions (c) Reservation of authority. Where
any hearing requests? the Forest Service notifies FERC that it
1.626 What regulations apply to a case § 1.601 What is the purpose of this is reserving its authority to develop one
referred for a hearing? subpart, and to what license proceedings
does it apply?
or more conditions during the term of
General Provisions Related to Hearings the license, the hearing and alternatives
(a) Hearing process. (1) The processes under this subpart for such
1.630 What will OALJ do with a case regulations in §§ 1.601 through 1.660
referral?
conditions will be available if and when
contain rules of practice and procedure the Forest Service exercises its reserved
1.631 What are the powers of the ALJ? applicable to hearings on disputed
1.632 What happens if the ALJ becomes authority. The Forest Service will
issues of material fact with respect to consult with FERC and notify the
unavailable? mandatory conditions that the
1.633 Under what circumstances may the license parties regarding how to initiate
Department of Agriculture, Forest the hearing process and alternatives
ALJ be disqualified?
1.634 What is the law governing ex parte
Service (Forest Service) may develop for process at that time.
communications? inclusion in a hydropower license (d) Applicability. (1) This subpart
1.635 What are the requirements for issued under subchapter I of the Federal applies to any hydropower license
motions? Power Act (FPA), 16 U.S.C. 791 et seq. proceeding for which the license has not
The authority to develop these been issued as of November 17, 2005
Prehearing Conferences and Discovery conditions is granted by FPA section and for which one or more preliminary
1.640 What are the requirements for 4(e), 16 U.S.C. 797(e), which authorizes conditions or conditions have been or
prehearing conferences? the Secretary of Agriculture to condition are filed with FERC.
1.641 How may parties obtain discovery of hydropower licenses issued by the (2) If the Forest Service has already
information needed for the case? Federal Energy Regulatory Commission filed one or more preliminary
1.642 When must a party supplement or (FERC). conditions or conditions as of November
amend information it has previously (2) The hearing process under this 17, 2005, the special applicability
provided? subpart does not apply to
1.643 What are the requirements for written
provisions of § 1.604 also apply.
recommendations that the Forest
interrogatories? § 1.602 What terms are used in this
Service may submit to FERC under FPA
1.644 What are the requirements for subpart?
depositions?
section 10(a), 16 U.S.C. 803(a).
(3) The FPA also grants the As used in this subpart:
1.645 What are the requirements for ALJ means an administrative law
requests for documents or tangible things Department of the Interior the authority
to develop mandatory conditions and judge appointed under 5 U.S.C. 3105
or entry on land?
prescriptions, and the Department of and assigned to preside over the hearing
1.646 What sanctions may the ALJ impose
Commerce the authority to develop process under this subpart.
for failure to comply with discovery?
mandatory prescriptions, for inclusion Alternative means a condition that a
1.647 What are the requirements for
in a hydropower license. Where the license party other than the Forest
subpoenas and witness fees?
Forest Service USDA and either or both Service or another Department develops
Hearing, Briefing, and Decision as an alternative to a preliminary
of these other Departments develop
1.650 When and where will the hearing be conditions or prescriptions to be condition from the Forest Service or
held? included in the same hydropower another Department, under FPA sec. 33,
1.651 What are the parties’ rights during the license and where the Departments 16 U.S.C. 823d.
hearing? Condition means a condition under
agree to consolidate the hearings under
1.652 What are the requirements for FPA sec. 4(e), 16 U.S.C. 797(e), for the
presenting testimony?
§ 1.623:
(i) A hearing conducted under this adequate protection and utilization of a
1.653 How may a party use a deposition in reservation.
the hearing? subpart will also address disputed
Day means a calendar day.
1.654 What are the requirements for issues of material fact with respect to Department means the Department of
exhibits, official notice, and stipulations? any condition or prescription developed Agriculture, Department of Commerce,
1.655 What evidence is admissible at the by one of the other Departments; or or Department of the Interior.
hearing? (ii) A hearing requested under this Discovery means a prehearing process
1.656 What are the requirements for subpart will be conducted by one of the for obtaining facts or information to
transcription of the hearing? other Departments, pursuant to 43 CFR assist a party in preparing or presenting
1.657 What is the standard of proof? 45.1 et seq. or 50 CFR 221.1 et seq., as its case.
1.658 When will the hearing record close? applicable. Ex parte communication means an
1.659 What are the requirements for post- (4) The regulations in §§ 1.601 oral or written communication to the
hearing briefs? through 1.660 will be construed and
1.660 What are the requirements for the ALJ that is made without providing all
applied to each hearing process to parties reasonable notice and an
ALJ’s decision? achieve a just and speedy opportunity to participate.
Alternatives Process determination, consistent with adequate FERC means the Federal Energy
1.670 How must documents be filed and consideration of the issues involved and Regulatory Commission.
served under §§ 1.670 through 1.673? the provisions of § 1.660(a). Forest Service means the USDA Forest
1.671 How do I propose an alternative? (b) Alternatives process. The Service.
1.672 What will the Forest Service do with regulations in §§ 1.670 through 1.673 FPA means the Federal Power Act, 16
a proposed alternative? contain rules of procedure applicable to U.S.C. 791 et seq.
1.673 How will the Forest Service analyze the submission and consideration of Hearing Clerk means the Hearing
a proposed alternative and formulate its alternative conditions under FPA Clerk, USDA, 1400 Independence Ave.,
modified conditions? section 33, 16 U.S.C. 823d. That section SW., Washington, DC 20250; phone:
1.674 Has OMB approved the information allows any party to the license 202–720–4443, facsimile: 202–720–
collection provisions of §§ 1.670 through proceeding to propose an alternative to 9776.
1.673? a condition deemed necessary by the Intervention means a process by
Authority: 16 U.S.C. 797(e), 811, 823d. Forest Service under section 4(e). which a person who did not request a
hearing under § 1.621 can participate as Representative means a person who: condition or condition with FERC
a party to the hearing under § 1.622. (1) Is authorized by a party to before November 17, 2005 and FERC has
License party means a party to the represent the party in a hearing process not issued a license as of that date.
license proceeding, as that term is under this subpart; and (2) The deadlines in this section will
defined at 18 CFR 385.102(c). (2) Has filed an appearance under apply in such a case, in lieu of any
License proceeding means a § 1.610. inconsistent deadline in other sections
proceeding before FERC for issuance of Reservation has the same meaning as of this subpart.
a license for a hydroelectric facility the term ‘‘reservations’’ in FPA sec. 3(2), (b) Hearing process. (1) Any request
under 18 CFR parts 4 or 5. 16 U.S.C. 796(2). for a hearing under § 1.621 must be filed
Material fact means a fact that, if Secretary means the Secretary of with NFS by December 19, 2005.
proved, may affect a Department’s Agriculture or his or her designee. (2) Any notice of intervention and
decision whether to affirm, modify, or Senior Department employee has the response under § 1.622 must be filed by
withdraw any condition or prescription. same meaning as the term ‘‘senior January 3, 2006.
NEPA document means an employee’’ in 5 CFR 2637.211(a). (3) Upon receipt of a hearing request
environmental assessment or USDA means the United States under paragraph (b)(1) of this section,
environmental impact statement issued Department of Agriculture. the Forest Service must do the following
to comply with the requirements of the You refers to a party other than a by March 17, 2006:
National Environmental Policy Act of Department. (i) Comply with the requirements of
1969, 42 U.S.C. 4321 et seq. § 1.623;
NFS means Deputy Chief, National § 1.603 How are time periods computed? (ii) Determine jointly with any other
Forest Systems, Forest Service. The (a) General. Time periods are Department that has received a hearing
service and mailing address under this computed as follows: request, after consultation with FERC, a
subpart is NFS, Washington Office (WO) (1) The day of the act or event from time frame for the hearing process and
Lands Staff, Mail Stop 1124, 1400 which the period begins to run is not a corresponding deadline for the Forest
Independence Avenue, SW., included. Service to file an answer under § 1.624;
Washington, DC 20250–0003, telephone (2) The last day of the period is and
202–205–1248, facsimile number 202– included. (iii) Issue a notice to each party
205–1604. (i) If that day is a Saturday, Sunday, specifying the time frame for the hearing
Office of Administrative Law Judges or federal holiday, the period is process, including the deadline for the
(OALJ) is the office within USDA in extended to the next business day. Forest Service to file an answer.
which ALJs conduct hearings under the (ii) The last day of the period ends at (c) Alternatives process. (1) Any
regulations in this subpart. 5 p.m. at the place where the filing or alternative under § 1.671 must be filed
Party means, with respect to USDA’s other action is due. with NFS by December 19, 2005.
hearing process: (3) If the period is less than 7 days, (2) Upon receipt of an alternative
(1) A license party that has filed a any Saturday, Sunday, or federal under paragraph (c)(1) of this section, if
timely request for a hearing under: holiday that falls within the period is no hearing request is filed under
(i) Section 1.621; or not included. paragraph (b)(1) of this section, the
(ii) Either 43 CFR 45.21 or 50 CFR (b) Extensions of time. (1) No Forest Service must do the following by
221.21, with respect to a hearing process extension of time can be granted to file February 15, 2006:
consolidated under § 1.623; a request for a hearing under § 1.621, a (i) Determine jointly with any other
(2) A license party that has filed a notice of intervention and response Department that has received a related
timely notice of intervention and under § 1.622, an answer under § 1.624, alternative, after consultation with
response under: or any document under §§ 1.670 FERC, a time frame for the filing of a
(i) Section 1.622; or through 1.673. modified condition under § 1.672(b);
(ii) Either 43 CFR 45.22 or 50 CFR (2) An extension of time to file any and
221.22, with respect to a hearing process other document under this subpart may (ii) Issue a notice to the license party
consolidated under § 1.623; be granted only upon a showing of good that has submitted the alternative,
(3) The Forest Service, if it has filed cause. specifying the time frame for the filing
a preliminary condition; and (i) To request an extension of time, a of a modified condition.
(4) Any other Department that has party must file a motion under § 1.635 (3) Upon receipt of an alternative
filed a preliminary condition or stating how much additional time is under paragraph (c)(1) of this section, if
prescription, with respect to a hearing needed and the reasons for the request. a hearing request is also filed under
process consolidated under § 1.623. (ii) The party must file the motion paragraph (b)(1) of this section, the
Person means an individual; a before the applicable time period Forest Service will follow the provisions
partnership, corporation, association, or expires, unless the party demonstrates of paragraph (b)(3) of this section.
other legal entity; an unincorporated extraordinary circumstances that justify
organization; and any federal, state, a delay in filing. Hearing Process
tribal, county, district, territorial, or (iii) The ALJ may grant the extension Representatives
local government or agency. only if:
Preliminary condition or prescription (A) It would not unduly prejudice § 1.610 Who may represent a party, and
means a preliminary condition or other parties; and what requirements apply to a
prescription filed by a Department with representative?
(B) It would not delay the decision
FERC under 18 CFR 4.34(b), 4.34(i), or under § 1.660. (a) Individuals. A party who is an
5.22(a) for potential inclusion in a individual may either represent himself
hydropower license. § 1.604 What deadlines apply to pending or herself in the hearing process under
Prescription means a fishway applications? this subpart or authorize an attorney to
prescribed under FPA sec. 18, 16 U.S.C. (a) Applicability. (1) This section represent him or her.
811, to provide for the safe, timely, and applies to any case in which the Forest (b) Organizations. A party that is an
effective passage of fish. Service has filed a preliminary organization or other entity may
authorize one of the following to (1) The name of the case under (iii) By sending the document by
represent it: §§ 1.610 through 1.660 and the docket facsimile if:
(1) An attorney; number, if one has been assigned; (A) The document is 20 pages or less,
(2) A partner, if the entity is a (2) The name and docket number of including all attachments;
partnership; the license proceeding to which the case (B) The sending facsimile machine
(3) An officer or full-time employee, under §§ 1.610 through 1.660 relates; confirms that the transmission was
if the entity is a corporation, and successful; and
association, or unincorporated (3) A descriptive title for the (C) The original of the document is
organization; document, indicating the party for sent by regular mail on the same day.
(4) A receiver, administrator, whom it is filed and the nature of the (2) Parties are encouraged, but not
executor, or similar fiduciary, if the document. required, to supplement any filing by
entity is a receivership, trust, or estate; (c) Signature. The original of each providing the appropriate office with an
or document filed under §§ 1.610 through electronic copy of the document on
(5) An elected or appointed official or 1.660 must be signed by the diskette or compact disc.
an employee, if the entity is a federal, representative of the person for whom (c) Date of filing. A document under
state, tribal, county, district, territorial, the document is filed. The signature §§ 1.610 through 1.660 is considered
or local government or component. constitutes a certification by the filed on the date it is received. However,
(c) Appearance. A representative representative that he or she has read any document received after 5 p.m. at
must file a notice of appearance. The the document; that to the best of his or the place where the filing is due is
her knowledge, information, and belief, considered filed on the next regular
notice must:
the statements made in the document business day.
(1) Meet the form and content
are true; and that the document is not (d) Nonconforming documents. If any
requirements for documents under
being filed for the purpose of causing document submitted for filing under
§ 1.611;
delay. §§ 1.610 through 1.660 does not comply
(2) Include the name and address of (d) Contact information. Below the
the person on whose behalf the with the requirements of §§ 1.610
representative’s signature, the document through 1.660 or any applicable order,
appearance is made; must provide the representative’s name,
(3) If the representative is an attorney, it may be rejected. If the defect is minor,
mailing address, street address (if the party may be notified of the defect
include a statement that he or she is a different), telephone number, facsimile
member in good standing of the bar of and given a chance to correct it.
number (if any), and electronic mail
the highest court of a state, the District address (if any). § 1.613 What are the requirements for
of Columbia, or any territory or service of documents?
commonwealth of the United States § 1.612 Where and how must documents
(a) Filed documents. Any document
(identifying which one); and be filed?
related to a case under §§ 1.610 through
(4) If the representative is not an (a) Place of filing. Any documents 1.660 must be served at the same time
attorney, include a statement explaining relating to a case under §§ 1.610 through the document is delivered or sent for
his or her authority to represent the 1.660 must be filed with the appropriate filing. Copies must be served as follows:
entity. office, as follows: (1) A complete copy of any request for
(d) Disqualification. The ALJ may (1) Before NFS refers a case for
a hearing under § 1.621 must be served
disqualify any representative for docketing under § 1.625, any documents
on FERC and each license party, using
misconduct or other good cause. must be filed with NFS. NFS’s address,
one of the methods of service in
telephone number, and facsimile
Document Filing and Service paragraph (c) of this section.
number are set forth in § 1.602.
(2) NFS will notify the parties of the (2) A complete copy of any notice of
§ 1.611 What are the form and content intervention and response under § 1.622
requirements for documents under §§ 1.610 date on which it refers a case for
docketing under § 1.625. After that date, must be:
through 1.660? (i) Served on FERC, the license
any documents must be filed with:
(a) Form. Each document filed in a applicant, any person who has filed a
(i) The Hearing Clerk, if USDA will be
case under §§ 1.610 through 1.660 must: request for hearing under § 1.621, and
conducting the hearing. The Hearing
(1) Measure 81⁄2 by 11 inches, except Clerk’s address, telephone number, and the Forest Service, using one of the
that a table, chart, diagram, or other facsimile number are set forth in methods of service in paragraph (c) of
attachment may be larger if folded to § 1.602; or this section; and
81⁄2 by 11 inches and attached to the (ii) The hearings component of or (ii) Sent to any other license party
document; used by another Department, if that using regular mail.
(2) Be printed on just one side of the Department will be conducting the (3) A complete copy of any other filed
page; hearing under § 1.625. The name, document must be served on each party,
(3) Be clearly typewritten, printed, or address, telephone number, and using one of the methods of service in
otherwise reproduced by a process that facsimile number of the appropriate paragraph (c) of this section.
yields legible and permanent copies; hearings component will be provided in (b) Documents issued by the Hearing
(4) Use 10 point font size or larger; the referral notice from the Forest Clerk or ALJ. A complete copy of any
(5) Be double-spaced except for Service. notice, order, decision, or other
footnotes and long quotations, which (b) Method of filing. (1) A document document issued by the Hearing Clerk
may be single-spaced; must be filed with the appropriate office or the ALJ under §§ 1.610 through 1.660
(6) Have margins of at least 1 inch; under paragraph (a) of this section using must be served on each party, using one
and one of the following methods: of the methods of service in paragraph
(7) Be bound on the left side, if (i) By hand delivery of the original (c) of this section.
bound. document; (c) Method of service. Service must be
(b) Caption. Each document filed (ii) By sending the original document accomplished by one of the following
under §§ 1.610 through 1.660 must by express mail or courier service for methods:
begin with a caption that sets forth: delivery on the next business day; or (1) By hand delivery of the document;
(2) By sending the document by § 1.621 How do I request a hearing? (2) A license party filing a notice of
express mail or courier service for (a) General. To request a hearing on intervention and response may not raise
delivery on the next business day; disputed issues of material fact with issues of material fact beyond those
(3) By sending the document by respect to any condition filed by the raised in the hearing request.
facsimile if: Forest Service, you must: (b) Content. In your notice of
(i) The document is 20 pages or less, (1) Be a license party; and intervention and response you must
including all attachments; (2) File with NFS a written request for explain your position with respect to
(ii) The sending facsimile machine a hearing within 30 days after the the issues of material fact raised in the
confirms that the transmission was deadline for the Departments to file hearing request under § 1.621(b).
successful; and preliminary conditions with FERC. (1) If you agree with the information
(iii) The document is sent by regular (b) Content. Your hearing request provided by the Forest Service under
mail on the same day; or must contain: § 1.620(a) or by the requester under
(4) By sending the document, (1) A numbered list of the factual § 1.621(b), your response may refer to
including all attachments, by electronic issues that you allege are in dispute, the Forest Service’s explanation or the
mail if: each stated in a single, concise sentence; requester’s hearing request for support.
(i) A copy of the document is sent by and (2) If you wish to rely on additional
regular mail on the same day; and (2) The following information with information or analysis, your response
(ii) The party acknowledges receipt of respect to each issue: must provide the same level of detail
(i) The specific factual statements with respect to the additional
the document by close of the next
made or relied upon by the Forest information or analysis as required
business day.
Service under § 1.620(a) that you under § 1.621(b).
(d) Acknowledgment of service. Any (c) Witnesses and exhibits. Your
dispute;
party who receives a document under (ii) The basis for your opinion that response and notice must also list the
§§ 1.610 through 1.660 by electronic those factual statements are unfounded witnesses and exhibits that you intend
mail must promptly send a reply or erroneous; to present at the hearing, other than
electronic mail message acknowledging (iii) The basis for your opinion that solely for impeachment purposes.
receipt. any factual dispute is material; and (1) For each witness listed, you must
(e) Certificate of service. A certificate (iv) With respect to any scientific provide:
of service must be attached to each studies, literature, and other (i) His or her name, address,
document filed under §§ 1.610 through documented information supporting telephone number, and qualifications;
1.660. The certificate must be signed by your opinions under paragraphs and
the party’s representative and include (b)(2)(ii) and (b)(2)(iii) of this section, (ii) A brief narrative summary of his
the following information: specific citations to the information or her expected testimony; and
(1) The name, address, and other relied upon. If any such document is not (2) For each exhibit listed, you must
contact information of each party’s already in the license proceeding specify whether it is in the license
representative on whom the document record, you must provide a copy with proceeding record.
was served; the request. (d) Page limits. (1) For each disputed
(2) The means of service, including (c) Witnesses and exhibits. Your factual issue, the information provided
information indicating compliance with hearing request must also list the under paragraph (b) of this section may
paragraph (c)(3) or (c)(4) of this section, witnesses and exhibits that you intend not exceed two pages.
if applicable; and to present at the hearing, other than (2) For each witness, the information
(3) The date of service. solely for impeachment purposes. provided under paragraph (c)(1) of this
(1) For each witness listed, you must section may not exceed one page.
Initiation of Hearing Process
provide: § 1.623 When will hearing requests be
§ 1.620 What supporting information must (i) His or her name, address, consolidated?
the Forest Service provide with its telephone number, and qualifications;
(a) Initial Department coordination. If
preliminary conditions? and
(ii) A brief narrative summary of his the Forest Service has received a copy
(a) Supporting information. (1) When of a hearing request, it must contact the
the Forest Service files preliminary or her expected testimony.
(2) For each exhibit listed, you must other Departments within 10 days after
conditions with FERC, it must include the deadline for filing hearing requests
a rationale for the conditions and an specify whether it is in the license
proceeding record. under § 1.621 and determine:
index to the Forest Service’s (1) Whether any of the other
administrative record that identifies all (d) Page limits. (1) For each disputed
factual issue, the information provided Departments has also filed a preliminary
documents relied upon. condition or prescription relating to the
(2) If any of the documents relied under paragraph (b)(2) of this section
may not exceed two pages. license with FERC; and
upon are not already in the license (2) If so, whether the other
(2) For each witness, the information
proceeding record, the Forest Service Department has also received a hearing
provided under paragraph (c)(1) of this
must: request with respect to the preliminary
section may not exceed one page.
(i) File them with FERC at the time it condition or prescription.
files the preliminary conditions; and § 1.622 How do I file a notice of (b) Decision on consolidation. Within
(ii) Provide paper or electronic copies intervention and response? 25 days after the deadline for filing
to the license applicant. (a) General. (1) To intervene as a party hearing requests under § 1.621, if the
(b) Service. In addition to serving a to the hearing process, you must: Forest Service has received a hearing
copy of its preliminary conditions on (i) Be a license party; and request, it must:
each license party, the Forest Service (ii) File with NFS a notice of (1) Consult with any other
must provide a copy to the Hearing intervention and a written response to Department that has also received a
Clerk if and when a request for a hearing any request for a hearing within 15 days hearing request; and
is filed with respect to the preliminary after the date of service of the request (2) Decide jointly with the other
conditions. for a hearing. Department:
(i) Whether to consolidate the cases (i) Identify any other hearing request (4) The original of any answer under
for hearing under paragraphs (c)(3)(ii) that will be consolidated with this § 1.624; and
through (c)(3)(iv) of this section; and hearing request; and (5) An original referral notice under
(ii) If so, which Department will (ii) State which Department will paragraph (c) of this section.
conduct the hearing on their behalf. conduct the hearing and provide contact (c) Notice. At the time NFS refers the
(c) Criteria. Cases will or may be information for the appropriate case for a hearing, it must provide a
consolidated as follows: Department hearings component. referral notice that contains the
(1) All hearing requests with respect (c) Witnesses and exhibits. The Forest following information:
to any conditions from the same Service’s answer must also list the (1) The name, address, telephone
Department will be consolidated for witnesses and exhibits that it intends to number, and facsimile number of the
hearing. present at the hearing, other than solely Department hearings component that
(2) All hearing requests with respect for impeachment purposes. will conduct the hearing;
to any prescriptions from the same (1) For each witness listed, the Forest (2) The name, address, and other
Department will be consolidated for Service must provide: contact information for the
hearing. (i) His or her name, address, representative of each party to the
(3) Any or all of the following may be telephone number, and qualifications; hearing process;
consolidated for hearing, if the and (3) An identification of any other
Departments involved determine that (ii) A brief narrative summary of his hearing request that will be
there are common issues of material fact or her expected testimony. consolidated with this hearing request;
or that consolidation is otherwise (2) For each exhibit listed, the Forest and
appropriate: Service must specify whether it is in the (4) The date on which NFS is referring
(i) Two or more hearing requests with license proceeding record the case for docketing.
respect to any condition and any (d) Page limits. (1) For each disputed (d) Delivery and service. (1) NFS must
prescription from the same Department; factual issue, the information provided refer the case to the appropriate
(ii) Two or more hearing requests with Department hearings component by one
under paragraph (b)(1) of this section
respect to conditions from different of the methods identified in
may not exceed two pages.
Departments; (2) For each witness, the information § 1.612(b)(1)(i) and (b)(1)(ii).
(iii) Two or more hearing requests (2) NFS must serve a copy of the
provided under paragraph (c)(1) of this
with respect to prescriptions from referral notice on FERC and each party
section may not exceed one page.
different Departments; or to the hearing by one of the methods
(iv) Two or more hearing requests (e) Notice in lieu of answer. If the
Forest Service elects not to file an identified in § 1.613(c)(1) and (c)(2).
with respect to any condition from one
Department and any prescription from answer to a hearing request:
§ 1.626 What regulations apply to a case
(1) The Forest Service is deemed to
another Department. referred for a hearing?
agree that the issues listed by the
§ 1.624 How will the Forest Service requester are factual, material, and in (a) If NFS refers the case to OALJ,
respond to any hearing requests? dispute; these regulations will continue to apply
(a) General. Within 45 days after the (2) The Forest Service may file a list to the hearing process.
of witnesses and exhibits with respect to (b) If NFS refers the case to the
deadline in § 1.621(a)(2), the Forest
the request only as provided in Department of the Interior’s Office of
Service may file with the Hearing Clerk
§ 1.642(b); and Hearing and Appeals, the regulations at
an answer to any hearing request under
(3) The Forest Service must file a 43 CFR 45.1 et seq. will apply from that
§ 1.621.
(b) Content. If the Forest Service files notice containing the information point.
an answer: required by paragraph (b)(2) of this (c) If NFS refers the case to the
(1) For each of the numbered factual section, if the hearing request will be Department of Commerce’s designated
issues listed under § 1.621(b)(1), the consolidated with one or more other ALJ office, the regulations at 50 CFR
answer must explain the Forest hearing requests under § 1.623. 221.1 et seq. will apply from that point.
Service’s position with respect to the General Provisions Related to Hearings
issues of material fact raised by the § 1.625 What will the Forest Service do
with any hearing requests? § 1.630 What will OALJ do with a case
requester, including one or more of the
following statements as appropriate: (a) Case referral. Within 5 days after referral?
(i) That the Forest Service is willing receipt of the Forest Service’s answer, Within 5 days after issuance of the
to stipulate to the facts as alleged by the NFS will refer the case for a hearing as referral notice under § 1.625(c), 43 CFR
requester; follows: 45.25(c), or 50 CFR 221.25(c):
(ii) That the Forest Service believes (1) If the hearing is to be conducted (a) The Hearing Clerk must:
the issue listed by the requester is not by USDA, NFS will refer the case to the (1) Docket the case;
a factual issue, explaining the basis for OALJ. (2) Assign an ALJ to preside over the
such belief; (2) If the hearing is to be conducted hearing process and issue a decision;
(iii) That the Forest Service believes by another Department, NFS will refer and
the issue listed by the requester is not the case to the hearings component used (3) Issue a docketing notice that
material, explaining the basis for such by that Department. informs the parties of the docket
belief; or (b) Content. The case referral will number and the ALJ assigned to the
(iv) That the Forest Service agrees that consist of the following: case; and
the issue is factual, material, and in (1) A copy of any preliminary (b) The ALJ must issue a notice setting
dispute. condition under § 1.620; the time, place, and method for
(2) The answer must also indicate (2) The original of any hearing request conducting an initial prehearing
whether the hearing request will be under § 1.621; conference under § 1.640. This notice
consolidated with one or more other (3) The original of any notice of may be combined with the docketing
hearing requests under § 1.623 and, if intervention and response under notice under paragraph (a)(3) of this
so: § 1.622; section.
§ 1.631 What are the powers of the ALJ? the case, the ALJ must continue with the issuance of the referral notice under
The ALJ will have all powers hearing process and issue a decision. § 1.625(c).
necessary to conduct a fair, orderly, (1) The initial prehearing conference
§ 1.634 What is the law governing ex parte will be used:
expeditious, and impartial hearing
communications?
process, consistent with the (i) To identify, narrow, and clarify the
requirements of § 1.660(a), including the (a) Ex parte communications with the disputed issues of material fact and
powers to: ALJ or his or her staff are prohibited in exclude issues that do not qualify for
(a) Administer oaths and affirmations; accordance with 5 U.S.C. 554(d). review as factual, material, and
(b) Issue subpoenas to the extent (b) This section does not prohibit ex disputed;
authorized by law; parte inquiries concerning case status or (ii) To consider the parties’ motions
(c) Rule on motions; procedural requirements, unless the for discovery under § 1.641 and to set a
(d) Authorize discovery as provided inquiry involves an area of controversy deadline for the completion of
for in §§ 1.641 through 1.647; in the hearing process. discovery;
(e) Hold hearings and conferences; (iii) To discuss the evidence on which
(f) Regulate the course of hearings; § 1.635 What are the requirements for
motions? each party intends to rely at the hearing;
(g) Call and question witnesses; (iv) To set the deadline for submission
(h) Exclude any person from a hearing (a) General. Any party may apply for
of written testimony under § 1.652; and
or conference for misconduct or other an order or ruling on any matter related (v) To set the date, time, and place of
good cause; to the hearing process by presenting a the hearing.
(i) Issue a decision consistent with motion to the ALJ. A motion may be (2) The initial prehearing conference
§ 1.660(b) regarding any disputed issues presented any time after the Hearing may also be used:
of material fact relating to the Forest Clerk issues a docketing notice under (i) To discuss limiting and grouping
Service’s or other Department’s § 1.630. witnesses to avoid duplication;
condition or prescription that has been (1) A motion made at a hearing may (ii) To discuss stipulations of fact and
referred to the ALJ for hearing; and be stated orally on the record, unless the of the content and authenticity of
(j) Take any other action authorized ALJ directs that it be reduced to writing. documents;
by law. (2) Any other motion must: (iii) To consider requests that the ALJ
(i) Be in writing; take official notice of public records or
§ 1.632 What happens if the ALJ becomes (ii) Comply with the requirements of
unavailable? other matters;
§§ 1.610 through 1.613 with respect to (iv) To discuss the submission of
(a) If the ALJ becomes unavailable or form, content, filing, and service; and written testimony, briefs, or other
otherwise unable to perform the duties (iii) Not exceed 10 pages. documents in electronic form; and
described in § 1.631, the OALJ shall (b) Content. (1) Each motion must (v) To consider any other matters that
designate a successor. state clearly and concisely:
(b) If a hearing has commenced and may aid in the disposition of the case.
(i) Its purpose and the relief sought; (b) Other conferences. The ALJ may in
the ALJ cannot proceed with it, a (ii) The facts constituting the grounds his or her discretion direct the parties to
successor ALJ may do so. At the request for the relief sought; and attend one or more other prehearing
of a party, the successor ALJ may recall (iii) Any applicable statutory or conferences, if consistent with the need
any witness whose testimony is material regulatory authority. to complete the hearing process within
and disputed, and who is available to (2) A proposed order must accompany 90 days. Any party may by motion
testify again without undue burden. The the motion. request a conference.
successor ALJ may, within his or her (c) Response. Except as otherwise (c) Notice. The ALJ must give the
discretion, recall any other witness. required by this subpart or by order of parties reasonable notice of the time and
§ 1.633 Under what circumstances may the
the ALJ, any other party may file a place of any conference. A conference
ALJ be disqualified? response to a written motion within 10 will ordinarily be held by telephone,
days after service of the motion. When unless the ALJ orders otherwise.
(a) The ALJ may withdraw from a case
a party presents a motion at a hearing, (d) Preparation. (1) Each party’s
at any time the ALJ deems himself or
any other party may present a response representative must be fully prepared
herself disqualified.
(b) At any time before issuance of the orally on the record. for a discussion of all issues properly
ALJ’s decision, any party may move that (d) Reply. Unless the ALJ orders before the conference, both procedural
the ALJ disqualify himself or herself for otherwise, no reply to a response may and substantive. The representative
personal bias or other valid cause. be filed. must be authorized to commit the party
(1) The party must file the motion (e) Effect of filing. Unless the ALJ that he or she represents respecting
promptly after discovering facts or other orders otherwise, the filing of a motion those issues.
reasons allegedly constituting cause for does not stay the hearing process. (2) Before the date set for the initial
disqualification. (f) Ruling. The ALJ will rule on the prehearing conference, the parties’
(2) The party must file with the motion as soon as practicable, either representatives must make a good faith
motion an affidavit or declaration orally on the record or in writing. He or effort:
setting forth the facts or other reasons in she may summarily deny any dilatory, (i) To meet in person, by telephone,
detail. repetitive, or frivolous motion. or by other appropriate means; and
(c) The ALJ must rule upon the Prehearing Conferences and Discovery (ii) To reach agreement on discovery
motion, stating the grounds for the and the schedule of remaining steps in
ruling. § 1.640 What are the requirements for the hearing process.
(1) If the ALJ concludes that the prehearing conferences? (e) Failure to attend. Unless the ALJ
motion is timely and meritorious, he or (a) Initial prehearing conference. The orders otherwise, a party that fails to
she must disqualify himself or herself ALJ will conduct an initial prehearing attend or participate in a conference,
and withdraw from the case. conference with the parties at the time after being served with reasonable
(2) If the ALJ does not disqualify specified in the docketing notice under notice of its time and place, waives all
himself or herself and withdraw from § 1.630, on or about the 20th day after objections to any agreements reached in
the conference and to any consequent interrogatories, notice of deposition, or by or under contract with the party
orders or rulings. request for production of designated seeking the deposition.
(f) Scope. During a conference, the documents or tangible things or for (3) A party may depose a senior
ALJ may dispose of any procedural entry on designated land). Department employee only if the party
matters related to the case. (d) Timing of motions. A party must shows:
(g) Order. Within 2 days after the file any discovery motion under (i) That the employee’s testimony is
conclusion of each conference, the ALJ paragraph (c)(2) of this section within 7 necessary in order to provide
must issue an order that recites any days after issuance of the referral notice significant, unprivileged information
agreements reached at the conference under § 1.625(c). that is not available from any other
and any rulings made by the ALJ during (e) Objections. (1) A party must file source or by less burdensome means;
or as a result of the conference. any objections to a discovery motion or and
to specific portions of a proposed (ii) That the deposition would not
§ 1.641 How may parties obtain discovery
discovery request within 7 days after significantly interfere with the
of information needed for the case?
service of the motion. employee’s ability to perform his or her
(a) General. By agreement of the (2) An objection must explain how, in government duties.
parties or with the permission of the the objecting party’s view, the discovery (i) Completion of discovery. All
ALJ, a party may obtain discovery of sought does not meet the criteria in discovery must be completed within 25
information to assist the party in paragraphs (b)(1) through (b)(6) of this days after the initial prehearing
preparing or presenting its case. section. conference, unless the ALJ sets a
Available methods of discovery are: (f) Materials prepared for hearing. A different deadline.
(1) Written interrogatories; party generally may not obtain
(2) Depositions as provided in discovery of documents and tangible § 1.642 When must a party supplement or
paragraph (h) of this section; and things otherwise discoverable under amend information it has previously
(3) Requests for production of provided?
paragraph (b) of this section if they were
designated documents or tangible things (a) Discovery. A party must promptly
prepared in anticipation of or for the
or for entry on designated land for supplement or amend any prior
hearing by or for another party’s
inspection or other purposes. response to a discovery request if it
(b) Criteria. Discovery may occur only representative (including the party’s
attorney, expert, or consultant). learns that the response:
as agreed to by the parties or as (1) Was incomplete or incorrect when
(1) If a party wants to discover such
authorized by the ALJ in a written order made; or
materials, it must show:
or during a prehearing conference. The (2) Though complete and correct
(i) That it has substantial need of the
ALJ may authorize discovery only if the when made, is now incomplete or
materials in preparing its own case; and
party requesting discovery (ii) That the party is unable without incorrect in any material respect.
demonstrates: undue hardship to obtain the substantial (b) Witnesses and exhibits. (1) Within
(1) That the discovery will not 5 days after the date set for completion
equivalent of the materials by other
unreasonably delay the hearing process; of discovery, each party must file an
(2) That the information sought: means.
(2) In ordering discovery of such updated version of the list of witnesses
(i) Will be admissible at the hearing and exhibits required under §§ 1.621(c),
or appears reasonably calculated to lead materials when the required showing
has been made, the ALJ must protect 1.622(c), or 1.624(c).
to the discovery of admissible evidence; (2) If a party wishes to include any
(ii) Is not already in the license against disclosure of the mental
impressions, conclusions, opinions, or new witness or exhibit on its updated
proceeding record or otherwise list, it must provide an explanation of
obtainable by the party; legal theories of an attorney.
(g) Experts. Unless restricted by the why it was not feasible for the party to
(iii) Is not cumulative or repetitious;
ALJ, a party may discover any facts include the witness or exhibit on its list
and
known or opinions held by an expert under §§ 1.621(c), 1.622(c), or 1.624(c).
(iv) Is not privileged or protected from
concerning any relevant matters that are (c) Failure to disclose. (1) A party that
disclosure by applicable law;
(3) That the scope of the discovery is not privileged. Such discovery will be fails to disclose information required
not unduly burdensome; permitted only if: under §§ 1.621(c), 1.622(c), or 1.624(c),
(4) That the method to be used is the (1) The expert is expected to be a or paragraphs (a) or (b) of this section,
least burdensome method available; witness at the hearing; or will not be permitted to introduce as
(5) That any trade secrets or (2) The expert is relied on by another evidence at the hearing testimony from
proprietary information can be expert who is expected to be a witness a witness or other information that it
adequately safeguarded; and at the hearing, and the party shows: failed to disclose.
(6) That the standards for discovery (i) That it has a compelling need for (2) Paragraph (c)(1) of this section
under paragraphs (f) through (h) of this the information; and does not apply if the failure to disclose
section have been met, if applicable. (ii) That it cannot practicably obtain was substantially justified or is
(c) Motions. A party may initiate the information by other means. harmless.
discovery: (h) Limitations on depositions. (1) A (3) Before or during the hearing, a
(1) Pursuant to an agreement of the party may depose a witness only if the party may object to the admission of
parties; or party shows that the witness: evidence under paragraph (c)(1) of this
(2) By filing a motion that: (i) Will be unable to attend the section.
(i) Briefly describes the proposed hearing because of age, illness, or other (4) The ALJ will consider the
method(s), purpose, and scope of the incapacity; or following in determining whether to
discovery; (ii) Is unwilling to attend the hearing exclude evidence under paragraphs
(ii) Explains how the discovery meets voluntarily, and the party is unable to (c)(1) through (c)(3) of this section:
the criteria in paragraphs (b)(1) through compel the witness’s attendance at the (i) The prejudice to the objecting
(b)(6) of this section; and hearing by subpoena. party;
(iii) Attaches a copy of any proposed (2) Paragraph (h)(1)(ii) of this section (ii) The ability of the objecting party
discovery request (written does not apply to any person employed to cure any prejudice;
(iii) The extent to which presentation (2) The name and address of the signed transcript from the deponent or
of the evidence would disrupt the person before whom the deposition is to expiration of the 3-day review period,
orderly and efficient hearing of the case; be taken; whichever occurs first.
(iv) The importance of the evidence; (3) The name and address of the (g) Video recording. The testimony at
and witness whose deposition is to be taken; a deposition may be recorded on
(v) The reason for the failure to and videotape, subject to any conditions or
disclose, including any bad faith or (4) Any documents or materials that restrictions that the parties may agree to
willfulness regarding the failure. the witness is to produce. or the ALJ may impose, at the expense
(b) ALJ order. During or promptly of the party requesting the recording.
§ 1.643 What are the requirements for
after the initial prehearing conference, (1) The video recording may be in
written interrogatories?
the ALJ will issue an order under conjunction with an oral examination
(a) Motion. Except upon agreement of § 1.641(b) with respect to any discovery by telephone conference held under
the parties, a party wishing to propound motion requesting the taking of a paragraph (c)(3) of this section.
interrogatories must file a motion under deposition. The order will: (2) After the deposition has been
§ 1.641(c). (1) Grant the motion and approve the taken, the person recording the
(b) ALJ order. During or promptly taking of the deposition, subject to any deposition must:
after the initial prehearing conference, conditions or restrictions the ALJ may (i) Provide a copy of the videotape to
the ALJ will issue an order under impose; or any party that requests it, at the
§ 1.641(b) with respect to any discovery (2) Deny the motion. requesting party’s expense; and
motion requesting the use of written (c) Arrangements. If the parties agree (ii) Attach to the videotape a
interrogatories. The order will: to or the ALJ approves the taking of the statement identifying the case and the
(1) Grant the motion and approve the deposition, the party requesting the deponent and certifying the authenticity
use of some or all of the proposed deposition must make appropriate of the video recording.
interrogatories; or arrangements for necessary facilities and
(2) Deny the motion. (h) Use of deposition. A deposition
(c) Answers to interrogatories. Except personnel. may be used at the hearing as provided
(1) The deposition will be taken at the in § 1.653.
upon agreement of the parties, the party
time and place agreed to by the parties
to whom the proposed interrogatories § 1.645 What are the requirements for
or indicated in the ALJ’s order.
are directed must file its answers to any requests for documents or tangible things
(2) The deposition may be taken
interrogatories approved by the ALJ or entry on land?
before any disinterested person
within 15 days after issuance of the (a) Motion. Except upon agreement of
authorized to administer oaths in the
order under paragraph (b) of this the parties, a party wishing to request
place where the deposition is to be
section. the production of designated documents
taken.
(1) Each approved interrogatory must or tangible things or entry on designated
(3) Any party that objects to the taking
be answered separately and fully in land must file a motion under § 1.641(c).
of a deposition because of the
writing. A request may include any of the
(2) The party or its representative disqualification of the person before
whom it is to be taken must do so: following that are in the possession,
must sign the answers to interrogatories custody, or control of another party:
(i) Before the deposition begins; or
under oath or affirmation. (1) The production of designated
(d) Access to records. A party’s (ii) As soon as the disqualification
becomes known or could have been documents for inspection and copying,
answer to an interrogatory is sufficient other than documents that are already in
when: discovered with reasonable diligence.
(4) A deposition may be taken by the license proceeding record;
(1) The information may be obtained
telephone conference call, if agreed to (2) The production of designated
from an examination of records, or from
by the parties or approved in the ALJ’s tangible things for inspection, copying,
a compilation, abstract, or summary
order. testing, or sampling; or
based on such records;
(d) Testimony. Each witness deposed (3) Entry on designated land or other
(2) The burden of obtaining the
must be placed under oath or property for inspection and measuring,
information from the records is
affirmation, and the other parties must surveying, photographing, testing, or
substantially the same for all parties;
(3) The answering party specifically be given an opportunity for cross- sampling either the property or any
identifies the individual records from examination. designated object or operation on the
which the requesting party may obtain (e) Representation of witness. The property.
the information and where the records witness being deposed may have (b) ALJ order. During or promptly
are located; and counsel or another representative after the initial prehearing conference,
(4) The answering party provides the present during the deposition. the ALJ will issue an order under
requesting party with reasonable (f) Recording and transcript. Except as § 1.641(b) with respect to any discovery
opportunity to examine the records and provided in paragraph (g) of this motion requesting the production of
make a copy, compilation, abstract, or section, the deposition must be documents or tangible things or entry on
summary. stenographically recorded and land for inspection, copying, or other
transcribed at the expense of the party purposes. The order will:
§ 1.644 What are the requirements for that requested the deposition. (1) Grant the motion and approve the
depositions? (1) Any other party may obtain a copy use of some or all of the proposed
(a) Motion and notice. Except upon of the transcript at its own expense. requests; or
agreement of the parties, a party wishing (2) Unless waived by the deponent, (2) Deny the motion.
to take a deposition must file a motion the deponent will have 3 days after (c) Compliance with order. Except
under § 1.641(c). Any notice of receiving the transcript to read and sign upon agreement of the parties, the party
deposition filed with the motion must it. to whom any approved request for
state: (3) The person before whom the production is directed must permit the
(1) The time and place that the deposition was taken must certify the approved inspection and other activities
deposition is to be taken; transcript following receipt of the within 15 days after issuance of the
order under paragraph (a) of this (i) Prepare a certificate of service (2) That the change will not unduly
section. setting forth: prejudice the parties and witnesses.
(A) The date, time, and manner of
§ 1.646 What sanctions may the ALJ service; or § 1.651 What are the parties’ rights during
impose for failure to comply with the hearing?
discovery?
(B) The reason for any failure of
service; and Consistent with the provisions of this
(a) Upon motion of a party, the ALJ subpart, each party has the following
(ii) Swear to or affirm the certificate,
may impose sanctions under paragraph rights during the hearing, as necessary
attach it to a copy of the subpoena, and
(b) of this section if any party: to assure full and accurate disclosure of
return it to the party on whose behalf
(1) Fails to comply with an order the facts:
the subpoena was served.
approving discovery; or (a) To present direct and rebuttal
(2) Fails to supplement or amend a (c) Witness fees. (1) A party who
subpoenas a witness who is not a party evidence;
response to discovery under § 1.642(a). (b) To make objections, motions, and
(b) The ALJ may impose one or more must pay him or her the same fees and
mileage expenses that are paid arguments; and
of the following sanctions: (c) To cross-examine witnesses and to
(1) Infer that the information, witnesses in the district courts of the
conduct re-direct and re-cross
testimony, document, or other evidence United States.
examination as permitted by the ALJ.
withheld would have been adverse to (2) A witness who is not a party and
the party; who attends a deposition or hearing at § 1.652 What are the requirements for
(2) Order that, for the purposes of the the request of any party without having presenting testimony?
hearing, designated facts are been subpoenaed to do so is entitled to (a) Written direct testimony. Unless
established; the same fees and mileage expenses as otherwise ordered by the ALJ, all direct
(3) Order that the party not introduce if he or she had been subpoenaed. hearing testimony must be prepared and
into evidence, or otherwise rely on to However, this paragraph does not apply submitted in written form.
support its case, any information, to federal employees who are called as (1) Prepared written testimony must:
testimony, document, or other evidence: witnesses by the Forest Service or (i) Have line numbers inserted in the
(i) That the party improperly another Department. left-hand margin of each page;
withheld; or (d) Motion to quash. (1) A person to (ii) Be authenticated by an affidavit or
(ii) That the party obtained from whom a subpoena is directed may declaration of the witness;
another party in discovery; request by motion that the ALJ quash or (iii) Be filed within 5 days after the
(4) Allow another party to use modify the subpoena. date set for completion of discovery,
secondary evidence to show what the (2) The motion must be filed: unless the ALJ sets a different deadline;
information, testimony, document, or (i) Within 5 days after service of the and
other evidence withheld would have subpoena; or (iv) Be offered as an exhibit during the
shown; or (ii) At or before the time specified in hearing.
(5) Take other appropriate action to the subpoena for compliance, if that is (2) Any witness submitting written
remedy the party’s failure to comply. less than 5 days after service of the testimony must be available for cross-
subpoena. examination at the hearing.
§ 1.647 What are the requirements for (b) Oral testimony. Oral examination
(3) The ALJ may quash or modify the
subpoena if it: of a witness in a hearing, including on
(a) Request for subpoena. (1) Except (i) Is unreasonable; cross-examination or redirect, must be
as provided in paragraph (a)(2) of this (ii) Requires evidence during conducted under oath and in the
section, any party may file a motion discovery that is not discoverable; or presence of the ALJ, with an
requesting the ALJ to issue a subpoena (iii) Requires evidence during a opportunity for all parties to question
to the extent authorized by law for the hearing that is privileged or irrelevant. the witness.
attendance of a person, the giving of (e) Enforcement. For good cause (c) Telephonic testimony. The ALJ
testimony, or the production of shown, the ALJ may apply to the may by order allow a witness to testify
documents or other relevant evidence appropriate United States District Court by telephonic conference call.
during discovery or for the hearing. for the issuance of an order compelling (1) The arrangements for the call must
(2) A party may subpoena a senior let each party listen to and speak to the
the appearance and testimony of a
Department employee only if the party witness and each other within the
witness or the production of evidence as
shows: hearing of the ALJ.
(i) That the employee’s testimony is set forth in a subpoena that has been
duly issued and served. (2) The ALJ will ensure the full
necessary in order to provide identification of each speaker so the
significant, unprivileged information Hearing, Briefing, and Decision reporter can create a proper record.
that is not available from any other (3) The ALJ may issue a subpoena
source or by less burdensome means; § 1.650 When and where will the hearing
be held? under § 1.647 directing a witness to
and testify by telephonic conference call.
(ii) That the employee’s attendance (a) Except as provided in paragraph
would not significantly interfere with (b) of this section, the hearing will be § 1.653 How may a party use a deposition
the ability to perform his or her held at the time and place set at the in the hearing?
government duties. initial prehearing conference under (a) In general. Subject to the
(b) Service. (1) A subpoena may be § 1.640, generally within 15 days after provisions of this section, a party may
served by any person who is not a party the date set for completion of discovery. use in the hearing any part or all of a
and is 18 years of age or older. (b) On motion by a party or on the deposition taken under § 1.644 against
(2) Service must be made by hand ALJ’s initiative, the ALJ may change the any party who:
delivering a copy of the subpoena to the date, time, or place of the hearing if he (1) Was present or represented at the
person named therein. or she finds: taking of the deposition; or
(3) The person serving the subpoena (1) That there is good cause for the (2) Had reasonable notice of the taking
must: change; and of the deposition.
(b) Admissibility. (1) No part of a opportunity to show the contrary of an (3) As soon as practicable after the
deposition will be included in the officially noticed fact. close of the hearing and after
hearing record, unless received in (3) Any party requesting official consideration of any motions filed
evidence by the ALJ. notice of a fact after the conclusion of under paragraph (b)(1) of this section,
(2) The ALJ will exclude from the hearing must show good cause for the ALJ will issue an order making any
evidence any question and response to its failure to request official notice corrections to the transcript that the ALJ
which an objection: during the hearing. finds are warranted.
(i) Was noted at the taking of the (d) Stipulations. (1) The parties may
deposition; and stipulate to any relevant facts or to the § 1.657 What is the standard of proof?
(ii) Would have been sustained if the authenticity of any relevant documents. The standard of proof is a
witness had been personally present (2) If received in evidence at the preponderance of the evidence.
and testifying at a hearing. hearing, a stipulation is binding on the § 1.658 When will the hearing record
(3) If a party offers only part of a stipulating parties. close?
deposition in evidence: (3) A stipulation may be written or (a) The hearing record will close
(i) An adverse party may require the made orally at the hearing. when the ALJ closes the hearing, unless
party to introduce any other part that he or she directs otherwise.
ought in fairness to be considered with § 1.655 What evidence is admissible at the
hearing? (b) Evidence may not be added after
the part introduced; and the hearing record is closed, but the
(ii) Any other party may introduce (a) General. (1) Subject to the
provisions of § 1.642(b), the ALJ may transcript may be corrected under
any other parts. § 1.656 (b).
(c) Videotaped deposition. If the admit any written, oral, documentary, or
deposition was recorded on videotape demonstrative evidence that is: § 1.659 What are the requirements for
and is admitted into evidence, relevant (i) Relevant, reliable, and probative; post-hearing briefs?
portions will be played during the and (a) General. (1) Each party may file a
hearing and transcribed into the record (ii) Not privileged or unduly post-hearing brief within 10 days after
by the reporter. repetitious or cumulative. the close of the hearing, unless the ALJ
(2) The ALJ may exclude evidence if sets a different deadline.
§ 1.654 What are the requirements for its probative value is substantially (2) A party may file a reply brief only
exhibits, official notice, and stipulations? outweighed by the risk of undue if requested by the ALJ. The deadline for
(a) General. (1) Except as provided in prejudice, confusion of the issues, or filing a reply brief, if any, will be set by
paragraphs (b) through (e) of this delay. the ALJ.
section, any material offered in (3) Hearsay evidence is admissible. (3) The ALJ may limit the length of
evidence, other than oral testimony, The ALJ may consider the fact that the briefs to be filed under this section.
must be offered in the form of an evidence is hearsay when determining (b) Content. (1) An initial brief must
exhibit. its probative value. include:
(2) Each exhibit offered by a party (4) The Federal Rules of Evidence do (i) A concise statement of the case;
must be marked for identification. not directly apply to the hearing, but (ii) A separate section containing
(3) Any party who seeks to have an may be used as guidance by the ALJ and proposed findings regarding the issues
exhibit admitted into evidence must the parties in interpreting and applying of material fact, with supporting
provide: the provisions of this section. citations to the hearing record;
(i) The original of the exhibit to the (b) Objections. Any party objecting to (iii) Arguments in support of the
reporter, unless the ALJ permits the the admission or exclusion of evidence party’s position; and
substitution of a copy; and shall concisely state the grounds. A (iv) Any other matter required by the
(ii) A copy of the exhibit to the ALJ. ruling on every objection must appear in ALJ.
(b) Material not offered. If a document the record. (2) A reply brief, if requested by the
offered as an exhibit contains material ALJ, must be limited to any issues
not offered as evidence: § 1.656 What are the requirements for identified by the ALJ.
(1) The party offering the exhibit transcription of the hearing? (c) Form. (1) An exhibit admitted in
must: (a) Transcript and reporter’s fees. The evidence or marked for identification in
(i) Designate the matter offered as hearing will be transcribed verbatim. the record may not be reproduced in the
evidence; (1) The Forest Service will secure the brief.
(ii) Segregate and exclude the material services of a reporter and pay the (i) Such an exhibit may be
not offered in evidence, to the extent reporter’s fees to provide an original reproduced, within reasonable limits, in
practicable; and transcript to the Forest Service on an an appendix to the brief.
(iii) Provide copies of the entire expedited basis. (ii) Any pertinent analysis of an
document to the other parties appearing (2) Each party must pay the reporter exhibit may be included in a brief.
at the hearing. for any copies of the transcript obtained (2) If a brief exceeds 20 pages, it must
(2) The ALJ must give the other by that party. contain:
(i) A table of contents and of points
parties an opportunity to inspect the (b) Transcript Corrections. (1) Any
made, with page references; and
entire document and offer in evidence party may file a motion proposing
(ii) An alphabetical list of citations to
any other portions of the document. corrections to the transcript. The motion
legal authority, with page references.
(c) Official notice. (1) At the request must be filed within 5 days after receipt
of any party at the hearing, the ALJ may of the transcript, unless the ALJ sets a § 1.660 What are the requirements for the
take official notice of any matter of different deadline. ALJ’s decision?
which the courts of the United States (2) Unless a party files a timely (a) Timing. The ALJ must issue a
may take judicial notice, including the motion under paragraph (b)(1) of this decision within the shorter of the
public records of any Department party. section, the transcript will be presumed following time periods:
(2) The ALJ must give the other to be correct and complete, except for (1) 30 days after the close of the
parties appearing at the hearing an obvious typographical errors. hearing under § 1.658; or
(2) 90 days after issuance of the § 1.671 How do I propose an alternative? must consider evidence and supporting
referral notice under § 1.625(c), 43 CFR (a) General. To propose an alternative, material provided by any license party
45.25(c), or 50 CFR 221.25(c). you must: or otherwise available to the Forest
(b) Content. (1) The decision must (1) Be a license party; and Service, including:
contain: (2) File a written proposal with NFS (1) Any evidence on the
(i) Findings of fact on all disputed within 30 days after the deadline for the implementation costs or operational
issues of material fact; Forest Service to file preliminary impacts for electricity production of the
(ii) Conclusions of law necessary to conditions with FERC. proposed alternative;
make the findings of fact (such as (b) Content. Your proposal must (2) Any comments received on the
rulings on materiality and on the include: Forest Service’s preliminary condition;
admissibility of evidence); and (1) A description of the alternative, in (3) Any ALJ decision on disputed
an equivalent level of detail to the issues of material fact issued under
(iii) Reasons for the findings and
Forest Service’s preliminary condition; § 1.660 with respect to the preliminary
conclusions.
(2) An explanation of how the condition;
(2) The ALJ may adopt any of the alternative will provide for the adequate
findings of fact proposed by one or more (4) Comments received on any draft or
protection and utilization of the final NEPA documents; and
of the parties. reservation; (5) The license party’s proposal under
(3) The decision will not contain (3) An explanation of how the § 1.671.
conclusions as to whether any alternative, as compared to the (b) The Forest Service must adopt a
preliminary condition or prescription preliminary condition, will: proposed alternative if the Forest
should be adopted, modified, or (i) Cost significantly less to Service determines, based on substantial
rejected, or whether any proposed implement; or evidence provided by any license party
alternative should be adopted or (ii) Result in improved operation of or otherwise available to the Forest
rejected. the project works for electricity Service, that the alternative:
(c) Service. Promptly after issuing his production; (1) Will, as compared to the Forest
or her decision, the ALJ must: (4) An explanation of how the Service’s preliminary condition:
(1) Serve the decision on each party alternative will affect: (i) Cost significantly less to
to the hearing; and (i) Energy supply, distribution, cost, implement; or
(2) Forward a copy of the decision to and use; (ii) Result in improved operation of
FERC, along with the complete hearing (ii) Flood control; the project works for electricity
record, for inclusion in the license (iii) Navigation; production; and
proceeding record. (iv) Water supply;
(2) Will provide for the adequate
(d) Finality. The ALJ’s decision under (v) Air quality; and
protection and utilization of the
this section will be final, with respect to (vi) Other aspects of environmental
reservation.
the disputed issues of material fact, for quality; and
(5) Specific citations to any scientific (c) When the Forest Service files with
any Department involved in the hearing. FERC the condition that the Forest
To the extent the ALJ’s decision forms studies, literature, and other
documented information relied on to Service adopts as its modified condition
the basis for any condition or under §§ 1.672(b), it must also file:
prescription subsequently included in support your proposal, including any
assumptions you are making (e.g., (1) A written statement explaining:
the license, it may be subject to judicial (i) The basis for the adopted
review under 16 U.S.C. 825l(b). regarding the cost of energy or the rate
condition; and
of inflation). If any such document is
Alternatives Process (ii) If the Forest Service is not
not already in the license proceeding
adopting any alternative, its reasons for
record, you must provide a copy with
§ 1.670 How must documents be filed and not doing so; and
the proposal.
served under §§ 1.670 through 1.673? (2) Any study, data, and other factual
(a) Filing. (1) For the alternatives § 1.672 What will the Forest Service do information relied on that is not already
process, documents must be filed using with a proposed alternative? part of the licensing proceeding record.
one of the methods set forth in If any license party proposes an (d) The written statement under
§ 1.612(b). alternative to a preliminary condition paragraph (c)(1) of this section must
(2) A document is considered filed on under § 1.671(a)(1), the Forest Service demonstrate that the Forest Service gave
the date it is received. However, any must do the following within 60 days equal consideration to the effects of the
document received after 5 p.m. at the after the deadline for filing comments to condition adopted and any alternative
place where the filing is due is FERC’s NEPA document under 18 CFR not adopted on:
considered filed on the next regular 5.25(c): (1) Energy supply, distribution, cost,
business day. (a) Analyze the alternative under and use;
(b) Service. (1) Any document filed § 1.673; and (2) Flood control;
under this section must be served at the (b) File with FERC: (3) Navigation;
same time the document is delivered or (1) Any condition that the Forest (4) Water supply;
sent for filing. A complete copy of the Service adopts as its modified (5) Air quality; and
document must be served on each condition; and (6) Preservation of other aspects of
license party and FERC, using: (2) Its analysis of the modified environmental quality.
(i) One of the methods of service in condition and any proposed alternatives
§ 1.674 Has OMB approved the information
§ 1.613(c); or under § 1.673(c).
collection provisions of §§ 1.670 through
(ii) Regular mail. § 1.673 How will the Forest Service 1.673?
(2) The provisions of § 1.613 (d) and analyze a proposed alternative and Yes. This rule contains provisions
(e) regarding acknowledgment and formulate its modified condition? that would collect information from the
certificate of service apply to service (a) In deciding whether to adopt a public. It therefore requires approval by
under this section. proposed alternative, the Forest Service the Office of Management and Budget
(OMB) under the Paperwork Reduction Prehearing Conferences and Discovery of the Interior to condition hydropower
Act of 1995, 44 U.S.C. 3501 et seq. 45.40 What are the requirements for licenses issued by the Federal Energy
(PRA). According to the PRA, a Federal prehearing conferences? Regulatory Commission (FERC) and to
agency may not conduct or sponsor, and 45.41 How may parties obtain discovery of prescribe fishways.
a person is not required to respond to, information needed for the case? (2) The hearing process under this
a collection of information unless it 45.42 When must a party supplement or part does not apply to recommendations
amend information it has previously that DOI may submit to FERC under
displays a currently valid OMB control provided?
number that indicates OMB approval. FPA section 10(a) or (j), 16 U.S.C.
45.43 What are the requirements for written
OMB has reviewed the information interrogatories? 803(a), (j).
collection in this rule and approved it 45.44 What are the requirements for (3) The FPA also grants the
under OMB control number 1094–0001. depositions? Department of Agriculture the authority
45.45 What are the requirements for to develop mandatory conditions, and
Department of the Interior requests for documents or tangible things the Department of Commerce the
43 CFR Subtitle A or entry on land? authority to develop mandatory
45.46 What sanctions may the ALJ impose prescriptions, for inclusion in a
■ 2. The Department of the Interior adds for failure to comply with discovery? hydropower license. Where DOI and
part 45, title 43, to read as follows: 45.47 What are the requirements for either or both of these other
Departments develop conditions or
PART 45—CONDITIONS AND Hearing, Briefing, and Decision prescriptions to be included in the same
PRESCRIPTIONS IN FERC hydropower license and where the
45.50 When and where will the hearing be
HYDROPOWER LICENSES held? Departments agree to consolidate the
Subpart A—General Provisions 45.51 What are the parties’ rights during the hearings under § 45.23:
hearing? (i) A hearing conducted under this
Sec. 45.52 What are the requirements for
45.1 What is the purpose of this part, and
part will also address disputed issues of
presenting testimony? material fact with respect to any
to what license proceedings does it 45.53 How may a party use a deposition in
apply? the hearing?
condition or prescription developed by
45.2 What terms are used in this part? 45.54 What are the requirements for one of the other Departments; or
45.3 How are time periods computed? exhibits, official notice, and stipulations? (ii) A hearing requested under this
45.4 What deadlines apply to pending 45.55 What evidence is admissible at the part will be conducted by one of the
applications? hearing? other Departments, pursuant to 7 CFR
Subpart B—Hearing Process 45.56 What are the requirements for 1.601 et seq. or 50 CFR 221.1 et seq., as
transcription of the hearing? applicable.
Representatives 45.57 What is the standard of proof? (4) The regulations in subparts A and
45.10 Who may represent a party, and what 45.58 When will the hearing record close? B of this part will be construed and
requirements apply to a representative? 45.59 What are the requirements for post- applied to each hearing process to
hearing briefs?
Document Filing and Service 45.60 What are the requirements for the
achieve a just and speedy
ALJ’s decision? determination, consistent with adequate
45.11 What are the form and content
requirements for documents under this consideration of the issues involved and
Subpart C—Alternatives Process the provisions of § 45.60(a).
subpart?
45.12 Where and how must documents be 45.70 How must documents be filed and (b) Alternatives process. The
filed? served under this subpart? regulations in subparts A and C of this
45.13 What are the requirements for service 45.71 How do I propose an alternative? part contain rules of procedure
of documents? 45.72 What will the bureau do with a applicable to the submission and
proposed alternative? consideration of alternative conditions
Initiation of Hearing Process 45.73 How will the bureau analyze a
proposed alternative and formulate its
and prescriptions under FPA section 33,
45.20 What supporting information must a
bureau provide with its preliminary modified condition or prescription? 16 U.S.C. 823d. That section allows any
conditions or prescriptions? 45.74 Has OMB approved the information party to the license proceeding to
45.21 How do I request a hearing? collection provisions of this subpart? propose an alternative to a condition
45.22 How do I file a notice of intervention Authority: 16 U.S.C. 797(e), 811, 823d.
deemed necessary by DOI under section
and response? 4(e) or a fishway prescribed by DOI
45.23 When will hearing requests be Subpart A—General Provisions under section 18.
consolidated? (c) Reservation of authority. Where
45.24 How will the bureau respond to any § 45.1 What is the purpose of this part, and DOI notifies FERC that it is reserving its
hearing requests? to what license proceedings does it apply? authority to develop one or more
45.25 What will DOI do with any hearing (a) Hearing process. (1) The conditions or prescriptions during the
requests? regulations in subparts A and B of this
45.26 What regulations apply to a case
term of the license, the hearing and
referred for a hearing?
part contain rules of practice and alternatives processes under this part for
procedure applicable to hearings on such conditions or prescriptions will be
General Provisions Related to Hearings disputed issues of material fact with available if and when DOI exercises its
45.30 What will the Hearings Division do respect to mandatory conditions and reserved authority. DOI will consult
with a case referral? prescriptions that the Department of the with FERC and notify the license parties
45.31 What are the powers of the ALJ? Interior (DOI) may develop for inclusion regarding how to initiate the hearing
45.32 What happens if the ALJ becomes in a hydropower license issued under process and alternatives process at that
unavailable? subchapter I of the Federal Power Act
45.33 Under what circumstances may the
time.
(FPA), 16 U.S.C. 791 et seq. The (d) Applicability. (1) This part applies
45.34 What is the law governing ex parte authority to develop these conditions to any hydropower license proceeding
communications? and prescriptions is granted by FPA for which the license has not been
45.35 What are the requirements for sections 4(e) and 18, 16 U.S.C. 797(e) issued as of November 17, 2005 and for
motions? and 811, which authorize the Secretary which one or more preliminary
conditions, conditions, preliminary License proceeding means a Secretary means the Secretary of the
prescriptions, or prescriptions have proceeding before FERC for issuance of Interior or his or her designee.
been or are filed with FERC. a license for a hydroelectric facility Senior Department employee has the
(2) If DOI has already filed one or under 18 CFR parts 4 or 5. same meaning as the term ‘‘senior
more preliminary conditions, Material fact means a fact that, if employee’’ in 5 CFR 2637.211(a).
conditions, preliminary prescriptions, proved, may affect a Department’s You refers to a party other than a
or prescriptions as of November 17, decision whether to affirm, modify, or Department.
2005, the special applicability withdraw any condition or prescription.
provisions of § 45.4 also apply. NEPA document means an § 45.3 How are time periods computed?
environmental assessment or (a) General. Time periods are
§ 45.2 What terms are used in this part? environmental impact statement issued computed as follows:
As used in this part: to comply with the requirements of the (1) The day of the act or event from
ALJ means an administrative law National Environmental Policy Act of which the period begins to run is not
judge appointed under 5 U.S.C. 3105 1969, 42 U.S.C. 4321 et seq. included.
and assigned to preside over the hearing OEPC means the Office of (2) The last day of the period is
process under subpart B of this part. Environmental Policy and Compliance, included.
Alternative means a condition or Department of the Interior, 1849 C (i) If that day is a Saturday, Sunday,
prescription that a license party other Street, NW., Mail Stop 2342, or federal holiday, the period is
than a bureau or Department develops Washington, DC 20240, telephone 202– extended to the next business day.
as an alternative to a preliminary 208–3891, facsimile number 202–208– (ii) The last day of the period ends at
condition or prescription from a bureau 6970. 5 p.m. at the place where the filing or
or Department, under FPA sec. 33, 16 Party means, with respect to DOI’s other action is due.
U.S.C. 823d. hearing process under subpart B of this (3) If the period is less than 7 days,
Bureau means any of the following part: any Saturday, Sunday, or federal
organizations within DOI that develops (1) A license party that has filed a holiday that falls within the period is
a preliminary condition or prescription: timely request for a hearing under: not included.
the Bureau of Indian Affairs, Bureau of (i) Section 45.21; or (b) Extensions of time. (1) No
Land Management, Bureau of (ii) Either 7 CFR 1.621 or 50 CFR extension of time can be granted to file
Reclamation, Fish and Wildlife Service, 221.21, with respect to a hearing process a request for a hearing under § 45.21, a
or National Park Service. consolidated under § 45.23; notice of intervention and response
Condition means a condition under (2) A license party that has filed a under § 45.22, an answer under § 45.24,
FPA sec. 4(e), 16 U.S.C. 797(e), for the timely notice of intervention and or any document under subpart C of this
adequate protection and utilization of a response under: part.
reservation. (i) Section 45.22; or (2) An extension of time to file any
Day means a calendar day. (ii) Either 7 CFR 1.622 or 50 CFR other document under subpart B of this
Department means the Department of 221.22, with respect to a hearing process part may be granted only upon a
Agriculture, Department of Commerce, consolidated under § 45.23; showing of good cause.
or Department of the Interior. (3) Any bureau that has filed a (i) To request an extension of time, a
Discovery means a prehearing process preliminary condition or prescription; party must file a motion under § 45.35
for obtaining facts or information to and stating how much additional time is
assist a party in preparing or presenting (4) Any other Department that has needed and the reasons for the request.
its case. filed a preliminary condition or (ii) The party must file the motion
DOI means the Department of the prescription, with respect to a hearing before the applicable time period
Interior, including any bureau, unit, or process consolidated under § 45.23. expires, unless the party demonstrates
office of the Department, whether in Person means an individual; a extraordinary circumstances that justify
Washington, DC, or in the field. partnership, corporation, association, or a delay in filing.
Ex parte communication means an other legal entity; an unincorporated (iii) The ALJ may grant the extension
oral or written communication to the organization; and any federal, state, only if:
ALJ that is made without providing all tribal, county, district, territorial, or (A) It would not unduly prejudice
parties reasonable notice and an local government or agency. other parties; and
opportunity to participate. Preliminary condition or prescription (B) It would not delay the decision
FERC means the Federal Energy means a preliminary condition or under § 45.60.
Regulatory Commission. prescription filed by a Department with
FPA means the Federal Power Act, 16 FERC under 18 CFR 4.34(b), 4.34(i), or § 45.4 What deadlines apply to pending
U.S.C. 791 et seq. 5.22(a) for potential inclusion in a applications?
Hearings Division means the hydropower license. (a) Applicability. (1) This section
Departmental Cases Hearings Division, Prescription means a fishway applies to any case in which a bureau
Office of Hearings and Appeals, prescribed under FPA sec. 18, 16 U.S.C. has filed a preliminary condition,
Department of the Interior, 139 E. South 811, to provide for the safe, timely, and condition, preliminary prescription, or
Temple, Suite 600, Salt Lake City, Utah effective passage of fish. prescription with FERC before
84111, telephone 801–524–5344, Representative means a person who: November 17, 2005 and FERC has not
facsimile number 801–524–5539. (1) Is authorized by a party to issued a license as of that date.
Intervention means a process by represent the party in a hearing process (2) The deadlines in this section will
which a person who did not request a under this subpart; and apply in such a case, in lieu of any
hearing under § 45.21 can participate as (2) Has filed an appearance under inconsistent deadline in other sections
a party to the hearing under § 45.22. § 45.10. of this part.
License party means a party to the Reservation has the same meaning as (b) Hearing process. (1) Any request
license proceeding, as that term is the term ‘‘reservations’’ in FPA sec. 3(2), for a hearing under § 45.21 must be filed
defined at 18 CFR 385.102(c). 16 U.S.C. 796(2). with OEPC by December 19, 2005.
(2) Any notice of intervention and (4) A receiver, administrator, (c) Signature. The original of each
response under § 45.22 must be filed by executor, or similar fiduciary, if the document filed under this subpart must
January 3, 2006. entity is a receivership, trust, or estate; be signed by the representative of the
(3) Upon receipt of a hearing request or person for whom the document is filed.
under paragraph (b)(1) of this section, (5) An elected or appointed official or The signature constitutes a certification
the bureau must do the following by an employee, if the entity is a federal, by the representative that he or she has
March 17, 2006: state, tribal, county, district, territorial, read the document; that to the best of
(i) Comply with the requirements of or local government or component. his or her knowledge, information, and
§ 45.23; (c) Appearance. A representative belief, the statements made in the
(ii) Determine jointly with any other must file a notice of appearance. The document are true; and that the
bureau or Department that has received notice must: document is not being filed for the
a hearing request, after consultation (1) Meet the form and content purpose of causing delay.
with FERC, a time frame for the hearing requirements for documents under (d) Contact information. Below the
process and a corresponding deadline § 45.11; representative’s signature, the document
for the bureau to file an answer under (2) Include the name and address of must provide the representative’s name,
§ 45.24; and the person on whose behalf the mailing address, street address (if
(iii) Issue a notice to each party appearance is made; different), telephone number, facsimile
specifying the time frame for the hearing (3) If the representative is an attorney, number (if any), and electronic mail
process, including the deadline for the include a statement that he or she is a address (if any).
bureau to file an answer. member in good standing of the bar of
the highest court of a state, the District § 45.12 Where and how must documents
(c) Alternatives process. (1) Any be filed?
alternative under § 45.71 must be filed of Columbia, or any territory or
commonwealth of the United States (a) Place of filing. Any documents
with OEPC by December 19, 2005.
(identifying which one); and relating to a case under this subpart
(2) Upon receipt of an alternative
(4) If the representative is not an must be filed with the appropriate
under paragraph (c)(1) of this section, if
attorney, include a statement explaining office, as follows:
no hearing request is filed under
his or her authority to represent the (1) Before OEPC refers a case for
paragraph (b)(1) of this section, the
entity. docketing under § 45.25, any documents
bureau must do the following by
(d) Disqualification. The ALJ may must be filed with OEPC. OEPC’s
February 15, 2006:
disqualify any representative for address, telephone number, and
(i) Determine jointly with any other
misconduct or other good cause. facsimile number are set forth in § 45.2.
bureau or Department that has received (2) OEPC will notify the parties of the
a related alternative, after consultation Document Filing and Service date on which it refers a case for
with FERC, a time frame for the filing docketing under § 45.25. After that date,
of a modified condition or prescription § 45.11 What are the form and content
requirements for documents under this any documents must be filed with:
under § 45.72(b); and subpart? (i) The Hearings Division, if DOI will
(ii) Issue a notice to the license party be conducting the hearing. The Hearings
that has submitted the alternative, (a) Form. Each document filed in a
case under this subpart must: Division’s address, telephone number,
specifying the time frame for the filing and facsimile number are set forth in
(1) Measure 81⁄2 by 11 inches, except
of a modified condition or prescription. § 45.2; or
that a table, chart, diagram, or other
(3) Upon receipt of an alternative (ii) The hearings component of or
attachment may be larger if folded to
under paragraph (c)(1) of this section, if used by another Department, if that
81⁄2 by 11 inches and attached to the
a hearing request is also filed under Department will be conducting the
document;
paragraph (b)(1) of this section, the hearing under § 45.25. The name,
(2) Be printed on just one side of the
bureau will follow the provisions of address, telephone number, and
page;
paragraph (b)(3) of this section. (3) Be clearly typewritten, printed, or facsimile number of the appropriate
otherwise reproduced by a process that hearings component will be provided in
Subpart B—Hearing Process
yields legible and permanent copies; the referral notice from OEPC.
Representatives (4) Use 10 point font size or larger; (b) Method of filing. (1) A document
(5) Be double-spaced except for must be filed with the appropriate office
§ 45.10 Who may represent a party, and footnotes and long quotations, which under paragraph (a) of this section using
what requirements apply to a one of the following methods:
may be single-spaced;
representative?
(6) Have margins of at least 1 inch; (i) By hand delivery of the original
(a) Individuals. A party who is an and document;
individual may either represent himself (7) Be bound on the left side, if (ii) By sending the original document
or herself in the hearing process under bound. by express mail or courier service for
this subpart or authorize an attorney to (b) Caption. Each document filed delivery on the next business day; or
represent him or her. under this subpart must begin with a (iii) By sending the document by
(b) Organizations. A party that is an caption that sets forth: facsimile if:
organization or other entity may (1) The name of the case under this (A) The document is 20 pages or less,
authorize one of the following to subpart and the docket number, if one including all attachments;
represent it: has been assigned; (B) The sending facsimile machine
(1) An attorney; (2) The name and docket number of confirms that the transmission was
(2) A partner, if the entity is a the license proceeding to which the case successful; and
partnership; under this subpart relates; and (C) The original of the document is
(3) An officer or full-time employee, (3) A descriptive title for the sent by regular mail on the same day.
if the entity is a corporation, document, indicating the party for (2) Parties are encouraged, but not
association, or unincorporated whom it is filed and the nature of the required, to supplement any filing by
organization; document. providing the appropriate office with an
electronic copy of the document on (d) Certificate of service. A certificate (ii) The basis for your opinion that
diskette or compact disc. of service must be attached to each those factual statements are unfounded
(c) Date of filing. A document under document filed under this subpart. The or erroneous;
this subpart is considered filed on the certificate must be signed by the party’s (iii) The basis for your opinion that
date it is received. However, any representative and include the following any factual dispute is material; and
document received after 5 p.m. at the information: (iv) With respect to any scientific
place where the filing is due is (1) The name, address, and other studies, literature, and other
considered filed on the next regular contact information of each party’s documented information supporting
business day. representative on whom the document your opinions under paragraphs
(d) Nonconforming documents. If any was served; (b)(2)(ii) and (b)(2)(iii) of this section,
document submitted for filing under (2) The means of service, including specific citations to the information
this subpart does not comply with the information indicating compliance with relied upon. If any such document is not
requirements of this subpart or any paragraph (c)(3) or (c)(4) of this section, already in the license proceeding
applicable order, it may be rejected. If if applicable; and record, you must provide a copy with
the defect is minor, the party may be (3) The date of service. the request.
notified of the defect and given a chance (c) Witnesses and exhibits. Your
Initiation of Hearing Process
to correct it. hearing request must also list the
§ 45.20 What supporting information must witnesses and exhibits that you intend
§ 45.13 What are the requirements for a bureau provide with its preliminary to present at the hearing, other than
service of documents? conditions or prescriptions? solely for impeachment purposes.
(a) Filed documents. Any document (a) Supporting information. (1) When (1) For each witness listed, you must
related to a case under this subpart must any bureau files a preliminary condition provide:
be served at the same time the or prescription with FERC, it must (i) His or her name, address,
document is delivered or sent for filing. include a rationale for the condition or telephone number, and qualifications;
Copies must be served as follows: prescription and an index to the and
(1) A complete copy of any request for bureau’s administrative record that (ii) A brief narrative summary of his
a hearing under § 45.21 must be served identifies all documents relied upon. or her expected testimony.
on FERC and each license party, using (2) If any of the documents relied (2) For each exhibit listed, you must
one of the methods of service in upon are not already in the license specify whether it is in the license
paragraph (c) of this section. proceeding record, the bureau must: proceeding record.
(2) A complete copy of any notice of (i) File them with FERC at the time it (d) Page limits. (1) For each disputed
intervention and response under § 45.22 files the preliminary condition or factual issue, the information provided
must be: prescription; under paragraph (b)(2) of this section
(i) Served on FERC, the license (ii) Provide copies to the license may not exceed two pages.
applicant, any person who has filed a applicant; and (2) For each witness, the information
request for hearing under § 45.21, and (iii) In the case of a condition provided under paragraph (c)(1) of this
any bureau, using one of the methods of developed by the Bureau of Indian section may not exceed one page.
service in paragraph (c) of this section; Affairs, provide copies to the affected
and § 45.22 How do I file a notice of
tribe.
(ii) Sent to any other license party intervention and response?
(b) Service. In addition to serving a
using regular mail. copy of its preliminary condition or (a) General. (1) To intervene as a party
(3) A complete copy of any other filed prescription on each license party, the to the hearing process, you must:
document must be served on each party, bureau must provide a copy to OEPC if (i) Be a license party; and
using one of the methods of service in and when a request for a hearing is filed (ii) File with OEPC a notice of
paragraph (c) of this section. with respect to the preliminary intervention and a written response to
(b) Documents issued by the Hearings condition or prescription. any request for a hearing within 15 days
Division or ALJ. A complete copy of any after the date of service of the request
notice, order, decision, or other § 45.21 How do I request a hearing? for a hearing.
document issued by the Hearings (a) General. To request a hearing on (2) A license party filing a notice of
Division or the ALJ under this subpart disputed issues of material fact with intervention and response may not raise
must be served on each party, using one respect to any condition or prescription issues of material fact beyond those
of the methods of service in paragraph filed by a bureau, you must: raised in the hearing request.
(c) of this section. (1) Be a license party; and (b) Content. In your notice of
(c) Method of service. Service must be (2) File with OEPC a written request intervention and response you must
accomplished by one of the following for a hearing within 30 days after the explain your position with respect to
methods: deadline for the Departments to file the issues of material fact raised in the
(1) By hand delivery of the document; preliminary conditions or prescriptions hearing request under § 45.21(b).
(2) By sending the document by with FERC. (1) If you agree with the information
express mail or courier service for (b) Content. Your hearing request provided by the bureau under § 45.20(a)
delivery on the next business day; or must contain: or by the requester under § 45.21(b),
(3) By sending the document by (1) A numbered list of the factual your response may refer to the bureau’s
facsimile if: issues that you allege are in dispute, explanation or the requester’s hearing
(i) The document is 20 pages or less, each stated in a single, concise sentence; request for support.
including all attachments; and (2) If you wish to rely on additional
(ii) The sending facsimile machine (2) The following information with information or analysis, your response
confirms that the transmission was respect to each issue: must provide the same level of detail
successful; and (i) The specific factual statements with respect to the additional
(iii) The document is sent by regular made or relied upon by the bureau information or analysis as required
mail on the same day. under § 45.20(a) that you dispute; under § 45.21(b).
(c) Witnesses and exhibits. Your (i) Two or more hearing requests with under paragraph (b)(1) of this section
response and notice must also list the respect to any condition and any may not exceed two pages.
witnesses and exhibits that you intend prescription from the same Department; (2) For each witness, the information
to present at the hearing, other than (ii) Two or more hearing requests with provided under paragraph (c)(1) of this
solely for impeachment purposes. respect to conditions from different section may not exceed one page.
(1) For each witness listed, you must Departments; (e) Notice in lieu of answer. If the
provide: (iii) Two or more hearing requests bureau elects not to file an answer to a
(i) His or her name, address, with respect to prescriptions from hearing request:
telephone number, and qualifications; different Departments; or (1) The bureau is deemed to agree that
and (iv) Two or more hearing requests the issues listed by the requester are
(ii) A brief narrative summary of his with respect to any condition from one factual, material, and in dispute;
or her expected testimony; and Department and any prescription from (2) The bureau may file a list of
(2) For each exhibit listed, you must another Department. witnesses and exhibits with respect to
specify whether it is in the license the request only as provided in
proceeding record. § 45.24 How will the bureau respond to
any hearing requests? § 45.42(b); and
(d) Page limits. (1) For each disputed (3) The bureau must file a notice
factual issue, the information provided (a) General. Within 45 days after the
containing the information required by
under paragraph (b) of this section may deadline in § 45.21(a)(2), the bureau
paragraph (b)(2) of this section, if the
not exceed two pages. may file with OEPC an answer to any
hearing request will be consolidated
(2) For each witness, the information hearing request under § 45.21.
with one or more other hearing requests
provided under paragraph (c)(1) of this (b) Content. If the bureau files an
under § 45.23.
section may not exceed one page. answer:
(1) For each of the numbered factual § 45.25 What will DOI do with any hearing
§ 45.23 When will hearing requests be issues listed under § 45.21(b)(1), the requests?
consolidated? answer must explain the bureau’s (a) Case referral. Within 5 days after
(a) Initial Department coordination. position with respect to the issues of receipt of the bureau’s answer, OEPC
Any bureau that has received a copy of material fact raised by the requester, will refer the case for a hearing as
a hearing request must contact the other including one or more of the following follows:
bureaus and Departments within 10 statements as appropriate: (1) If the hearing is to be conducted
days after the deadline for filing hearing (i) That the bureau is willing to by DOI, OEPC will refer the case to the
requests under § 45.21 and determine: stipulate to the facts as alleged by the Hearings Division.
(1) Whether any of the other bureaus requester; (2) If the hearing is to be conducted
or Departments has also filed a (ii) That the bureau believes the issue by another Department, OEPC will refer
preliminary condition or prescription listed by the requester is not a factual the case to the hearings component used
relating to the license with FERC; and issue, explaining the basis for such by that Department.
(2) If so, whether the other bureau or belief; (b) Content. The case referral will
Department has also received a hearing (iii) That the bureau believes the issue
consist of the following:
request with respect to the preliminary listed by the requester is not material, (1) A copy of any preliminary
condition or prescription. explaining the basis for such belief; or
(b) Decision on consolidation. Within condition or prescription under § 45.20;
(iv) That the bureau agrees that the
(2) The original of any hearing request
25 days after the deadline for filing issue is factual, material, and in dispute.
(2) The answer must also indicate under § 45.21;
hearing requests under § 45.21, any
(3) The original of any notice of
bureau or Department that has received whether the hearing request will be
intervention and response under
a hearing request must: consolidated with one or more other
(1) Consult with any other bureau or § 45.22;
hearing requests under § 45.23 and, if
Department that has also received a (4) The original of any answer under
so:
hearing request; and (i) Identify any other hearing request § 45.24; and
(2) Decide jointly with the other that will be consolidated with this (5) An original referral notice under
bureau or Department: hearing request; and paragraph (c) of this section.
(i) Whether to consolidate the cases (ii) State which Department will (c) Notice. At the time OEPC refers the
for hearing under paragraphs (c)(3)(ii) conduct the hearing and provide contact case for a hearing, it must provide a
through (c)(3)(iv) of this section; and information for the appropriate referral notice that contains the
(ii) If so, which Department will Department hearings component. following information:
conduct the hearing on their behalf. (c) Witnesses and exhibits. The (1) The name, address, telephone
(c) Criteria. Cases will or may be bureau’s answer must also list the number, and facsimile number of the
consolidated as follows: witnesses and exhibits that it intends to Department hearings component that
(1) All hearing requests with respect present at the hearing, other than solely will conduct the hearing;
to any conditions from the same for impeachment purposes. (2) The name, address, and other
Department will be consolidated for (1) For each witness listed, the bureau contact information for the
hearing. must provide: representative of each party to the
(2) All hearing requests with respect (i) His or her name, address, hearing process;
to any prescriptions from the same telephone number, and qualifications; (3) An identification of any other
Department will be consolidated for and hearing request that will be
hearing. (ii) A brief narrative summary of his consolidated with this hearing request;
(3) Any or all of the following may be or her expected testimony. and
consolidated for hearing, if the bureaus (2) For each exhibit listed, the bureau (4) The date on which OEPC is
and Departments involved determine must specify whether it is in the license referring the case for docketing.
that there are common issues of material proceeding record. (d) Delivery and service. (1) OEPC
fact or that consolidation is otherwise (d) Page limits. (1) For each disputed must refer the case to the appropriate
appropriate: factual issue, the information provided Department hearings component by one
of the methods identified in of material fact relating to any bureau’s Division issues a docketing notice under
§ 45.12(b)(1)(i) and (b)(1)(ii). or other Department’s condition or § 45.30.
(2) OEPC must serve a copy of the prescription that has been referred to (1) A motion made at a hearing may
referral notice on FERC and each party the ALJ for hearing; and be stated orally on the record, unless the
to the hearing by one of the methods (j) Take any other action authorized ALJ directs that it be reduced to writing.
identified in § 45.13(c)(1) and (c)(2). by law. (2) Any other motion must:
(i) Be in writing;
§ 45.26 What regulations apply to a case § 45.32 What happens if the ALJ becomes (ii) Comply with the requirements of
referred for a hearing? unavailable? this subpart with respect to form,
(a) If OEPC refers the case to the (a) If the ALJ becomes unavailable or content, filing, and service; and
Hearings Division, the regulations in otherwise unable to perform the duties (iii) Not exceed 10 pages.
this subpart will continue to apply to described in § 45.31, the Hearings (b) Content. (1) Each motion must
the hearing process. Division shall designate a successor. state clearly and concisely:
(b) If OEPC refers the case to the (b) If a hearing has commenced and (i) Its purpose and the relief sought;
United States Department of the ALJ cannot proceed with it, a (ii) The facts constituting the grounds
Agriculture’s Office of Administrative successor ALJ may do so. At the request for the relief sought; and
Law Judges, the regulations at 7 CFR of a party, the successor ALJ may recall (iii) Any applicable statutory or
1.601 et seq. will apply from that point any witness whose testimony is material regulatory authority.
on. and disputed, and who is available to (2) A proposed order must accompany
(c) If OEPC refers the case to the testify again without undue burden. The the motion.
Department of Commerce’s designated successor ALJ may, within his or her (c) Response. Except as otherwise
ALJ office, the regulations at 50 CFR discretion, recall any other witness. required by this part or by order of the
221.1 et seq. will apply from that point ALJ, any other party may file a response
§ 45.33 Under what circumstances may the to a written motion within 10 days after
on.
service of the motion. When a party
General Provisions Related to Hearings (a) The ALJ may withdraw from a case presents a motion at a hearing, any other
at any time the ALJ deems himself or party may present a response orally on
§ 45.30 What will the Hearings Division do
with a case referral? herself disqualified. the record.
(b) At any time before issuance of the (d) Reply. Unless the ALJ orders
Within 5 days after issuance of the ALJ’s decision, any party may move that
referral notice under § 45.25(c), 7 CFR otherwise, no reply to a response may
the ALJ disqualify himself or herself for be filed.
1.625(c), or 50 CFR 221.25(c): personal bias or other valid cause.
(a) The Hearings Division must: (e) Effect of filing. Unless the ALJ
(1) The party must file the motion orders otherwise, the filing of a motion
(1) Docket the case; promptly after discovering facts or other
(2) Assign an ALJ to preside over the does not stay the hearing process.
reasons allegedly constituting cause for (f) Ruling. The ALJ will rule on the
hearing process and issue a decision; disqualification.
and motion as soon as practicable, either
(2) The party must file with the orally on the record or in writing. He or
(3) Issue a docketing notice that motion an affidavit or declaration
informs the parties of the docket she may summarily deny any dilatory,
setting forth the facts or other reasons in repetitive, or frivolous motion.
number and the ALJ assigned to the detail.
case; and (c) The ALJ must rule upon the Prehearing Conferences and Discovery
(b) The ALJ must issue a notice setting motion, stating the grounds for the
the time, place, and method for § 45.40 What are the requirements for
ruling. prehearing conferences?
conducting an initial prehearing (1) If the ALJ concludes that the
conference under § 45.40. This notice (a) Initial prehearing conference. The
motion is timely and meritorious, he or
may be combined with the docketing ALJ will conduct an initial prehearing
she must disqualify himself or herself
notice under paragraph (a)(3) of this conference with the parties at the time
and withdraw from the case.
section. (2) If the ALJ does not disqualify specified in the docketing notice under
himself or herself and withdraw from § 45.30, on or about the 20th day after
§ 45.31 What are the powers of the ALJ? issuance of the referral notice under
the case, the ALJ must continue with the
The ALJ will have all powers § 45.25(c).
hearing process and issue a decision.
necessary to conduct a fair, orderly, (1) The initial prehearing conference
expeditious, and impartial hearing § 45.34 What is the law governing ex parte will be used:
process, consistent with the communications? (i) To identify, narrow, and clarify the
requirements of § 45.60(a), including the (a) Ex parte communications with the disputed issues of material fact and
powers to: ALJ or his or her staff are prohibited in exclude issues that do not qualify for
(a) Administer oaths and affirmations; accordance with 5 U.S.C. 554(d). review as factual, material, and
(b) Issue subpoenas to the extent (b) This section does not prohibit ex disputed;
authorized by law; parte inquiries concerning case status or (ii) To consider the parties’ motions
(c) Rule on motions; procedural requirements, unless the for discovery under § 45.41 and to set a
(d) Authorize discovery as provided inquiry involves an area of controversy deadline for the completion of
for in this subpart; in the hearing process. discovery;
(e) Hold hearings and conferences; (iii) To discuss the evidence on which
(f) Regulate the course of hearings; § 45.35 What are the requirements for each party intends to rely at the hearing;
(g) Call and question witnesses; motions? (iv) To set the deadline for submission
(h) Exclude any person from a hearing (a) General. Any party may apply for of written testimony under § 45.52; and
or conference for misconduct or other an order or ruling on any matter related (v) To set the date, time, and place of
good cause; to the hearing process by presenting a the hearing.
(i) Issue a decision consistent with motion to the ALJ. A motion may be (2) The initial prehearing conference
§ 45.60(b) regarding any disputed issues presented any time after the Hearings may also be used:
(i) To discuss limiting and grouping (2) Depositions as provided in discovery of documents and tangible
witnesses to avoid duplication; paragraph (h) of this section; and things otherwise discoverable under
(ii) To discuss stipulations of fact and (3) Requests for production of paragraph (b) of this section if they were
of the content and authenticity of designated documents or tangible things prepared in anticipation of or for the
documents; or for entry on designated land for hearing by or for another party’s
(iii) To consider requests that the ALJ inspection or other purposes. representative (including the party’s
take official notice of public records or (b) Criteria. Discovery may occur only attorney, expert, or consultant).
other matters; as agreed to by the parties or as (1) If a party wants to discover such
(iv) To discuss the submission of authorized by the ALJ in a written order materials, it must show:
written testimony, briefs, or other or during a prehearing conference. The (i) That it has substantial need of the
documents in electronic form; and ALJ may authorize discovery only if the materials in preparing its own case; and
(v) To consider any other matters that party requesting discovery (ii) That the party is unable without
may aid in the disposition of the case. demonstrates: undue hardship to obtain the substantial
(b) Other conferences. The ALJ may in (1) That the discovery will not equivalent of the materials by other
his or her discretion direct the parties to unreasonably delay the hearing process; means.
attend one or more other prehearing (2) That the information sought: (2) In ordering discovery of such
conferences, if consistent with the need (i) Will be admissible at the hearing
materials when the required showing
to complete the hearing process within or appears reasonably calculated to lead
has been made, the ALJ must protect
90 days. Any party may by motion to the discovery of admissible evidence;
(ii) Is not already in the license against disclosure of the mental
request a conference. impressions, conclusions, opinions, or
(c) Notice. The ALJ must give the proceeding record or otherwise
obtainable by the party; legal theories of an attorney.
parties reasonable notice of the time and (g) Experts. Unless restricted by the
place of any conference. A conference (iii) Is not cumulative or repetitious;
and ALJ, a party may discover any facts
will ordinarily be held by telephone, known or opinions held by an expert
(iv) Is not privileged or protected from
unless the ALJ orders otherwise. concerning any relevant matters that are
(d) Preparation. (1) Each party’s disclosure by applicable law;
(3) That the scope of the discovery is not privileged. Such discovery will be
representative must be fully prepared permitted only if:
not unduly burdensome;
for a discussion of all issues properly (4) That the method to be used is the (1) The expert is expected to be a
before the conference, both procedural least burdensome method available; witness at the hearing; or
and substantive. The representative (5) That any trade secrets or (2) The expert is relied on by another
must be authorized to commit the party proprietary information can be expert who is expected to be a witness
that he or she represents respecting adequately safeguarded; and at the hearing, and the party shows:
those issues. (6) That the standards for discovery (i) That it has a compelling need for
(2) Before the date set for the initial under paragraphs (f) through (h) of this the information; and
prehearing conference, the parties’ section have been met, if applicable. (ii) That it cannot practicably obtain
representatives must make a good faith (c) Motions. A party may initiate the information by other means.
effort: discovery: (h) Limitations on depositions. (1) A
(i) To meet in person, by telephone, (1) Pursuant to an agreement of the party may depose a witness only if the
or by other appropriate means; and parties; or party shows that the witness:
(ii) To reach agreement on discovery (2) By filing a motion that: (i) Will be unable to attend the
and the schedule of remaining steps in (i) Briefly describes the proposed
hearing because of age, illness, or other
the hearing process. method(s), purpose, and scope of the
incapacity; or
(e) Failure to attend. Unless the ALJ discovery;
(ii) Is unwilling to attend the hearing
orders otherwise, a party that fails to (ii) Explains how the discovery meets
voluntarily, and the party is unable to
attend or participate in a conference, the criteria in paragraphs (b)(1) through
compel the witness’s attendance at the
after being served with reasonable (b)(6) of this section; and
(iii) Attaches a copy of any proposed hearing by subpoena.
notice of its time and place, waives all
discovery request (written (2) Paragraph (h)(1)(ii) of this section
objections to any agreements reached in
interrogatories, notice of deposition, or does not apply to any person employed
the conference and to any consequent
request for production of designated by or under contract with the party
orders or rulings.
(f) Scope. During a conference, the documents or tangible things or for seeking the deposition.
ALJ may dispose of any procedural entry on designated land). (3) A party may depose a senior
matters related to the case. (d) Timing of motions. A party must Department employee only if the party
(g) Order. Within 2 days after the file any discovery motion under shows:
conclusion of each conference, the ALJ paragraph (c)(2) of this section within 7 (i) That the employee’s testimony is
must issue an order that recites any days after issuance of the referral notice necessary in order to provide
agreements reached at the conference under § 45.25(c). significant, unprivileged information
and any rulings made by the ALJ during (e) Objections. (1) A party must file that is not available from any other
or as a result of the conference. any objections to a discovery motion or source or by less burdensome means;
to specific portions of a proposed and
§ 45.41 How may parties obtain discovery discovery request within 7 days after (ii) That the deposition would not
of information needed for the case? service of the motion. significantly interfere with the
(a) General. By agreement of the (2) An objection must explain how, in employee’s ability to perform his or her
parties or with the permission of the the objecting party’s view, the discovery government duties.
ALJ, a party may obtain discovery of sought does not meet the criteria in (i) Completion of discovery. All
information to assist the party in paragraphs (b)(1) through (b)(6) of this discovery must be completed within 25
preparing or presenting its case. section. days after the initial prehearing
Available methods of discovery are: (f) Materials prepared for hearing. A conference, unless the ALJ sets a
(1) Written interrogatories; party generally may not obtain different deadline.
§ 45.42 When must a party supplement or (1) Grant the motion and approve the deposition, the party requesting the
amend information it has previously use of some or all of the proposed deposition must make appropriate
provided? interrogatories; or arrangements for necessary facilities and
(a) Discovery. A party must promptly (2) Deny the motion. personnel.
supplement or amend any prior (c) Answers to interrogatories. Except (1) The deposition will be taken at the
response to a discovery request if it upon agreement of the parties, the party time and place agreed to by the parties
learns that the response: to whom the proposed interrogatories or indicated in the ALJ’s order.
(1) Was incomplete or incorrect when are directed must file its answers to any (2) The deposition may be taken
made; or interrogatories approved by the ALJ before any disinterested person
(2) Though complete and correct within 15 days after issuance of the authorized to administer oaths in the
when made, is now incomplete or order under paragraph (b) of this place where the deposition is to be
incorrect in any material respect. section. taken.
(b) Witnesses and exhibits. (1) Within (1) Each approved interrogatory must (3) Any party that objects to the taking
5 days after the date set for completion be answered separately and fully in of a deposition because of the
of discovery, each party must file an writing. disqualification of the person before
updated version of the list of witnesses (2) The party or its representative whom it is to be taken must do so:
and exhibits required under §§ 45.21(c), must sign the answers to interrogatories (i) Before the deposition begins; or
45.22(c), or 45.24(c). under oath or affirmation. (ii) As soon as the disqualification
(2) If a party wishes to include any (d) Access to records. A party’s becomes known or could have been
new witness or exhibit on its updated answer to an interrogatory is sufficient discovered with reasonable diligence.
list, it must provide an explanation of when: (4) A deposition may be taken by
why it was not feasible for the party to (1) The information may be obtained telephone conference call, if agreed to
include the witness or exhibit on its list from an examination of records, or from by the parties or approved in the ALJ’s
under §§ 45.21(c), 45.22(c), or 45.24(c). a compilation, abstract, or summary order.
(c) Failure to disclose. (1) A party that based on such records; (d) Testimony. Each witness deposed
fails to disclose information required (2) The burden of obtaining the must be placed under oath or
under §§ 45.21(c), 45.22(c), or 45.24(c), information from the records is affirmation, and the other parties must
or paragraphs (a) or (b) of this section, substantially the same for all parties; be given an opportunity for cross-
will not be permitted to introduce as (3) The answering party specifically examination.
evidence at the hearing testimony from identifies the individual records from (e) Representation of witness. The
a witness or other information that it which the requesting party may obtain witness being deposed may have
failed to disclosed. the information and where the records counsel or another representative
(2) Paragraph (c)(1) of this section are located; and present during the deposition.
(4) The answering party provides the (f) Recording and transcript. Except as
does not apply if the failure to disclose
requesting party with reasonable provided in paragraph (g) of this
was substantially justified or is
opportunity to examine the records and section, the deposition must be
harmless.
(3) Before or during the hearing, a make a copy, compilation, abstract, or stenographically recorded and
party may object to the admission of summary. transcribed at the expense of the party
evidence under paragraph (c)(1) of this § 45.44 What are the requirements for that requested the deposition.
section. depositions? (1) Any other party may obtain a copy
(4) The ALJ will consider the (a) Motion and notice. Except upon of the transcript at its own expense.
following in determining whether to agreement of the parties, a party wishing (2) Unless waived by the deponent,
exclude evidence under paragraphs to take a deposition must file a motion the deponent will have 3 days after
(c)(1) through (c)(3) of this section: under § 45.41(c). Any notice of receiving the transcript to read and sign
(i) The prejudice to the objecting deposition filed with the motion must it.
party; state: (3) The person before whom the
(ii) The ability of the objecting party (1) The time and place that the deposition was taken must certify the
to cure any prejudice; deposition is to be taken; transcript following receipt of the
(iii) The extent to which presentation (2) The name and address of the signed transcript from the deponent or
of the evidence would disrupt the person before whom the deposition is to expiration of the 3-day review period,
orderly and efficient hearing of the case; be taken; whichever occurs first.
(iv) The importance of the evidence; (3) The name and address of the (g) Video recording. The testimony at
and witness whose deposition is to be taken; a deposition may be recorded on
(v) The reason for the failure to and videotape, subject to any conditions or
disclose, including any bad faith or (4) Any documents or materials that restrictions that the parties may agree to
willfulness regarding the failure. the witness is to produce. or the ALJ may impose, at the expense
(b) ALJ order. During or promptly of the party requesting the recording.
§ 45.43 What are the requirements for after the initial prehearing conference, (1) The video recording may be in
written interrogatories? the ALJ will issue an order under conjunction with an oral examination
(a) Motion. Except upon agreement of § 45.41(b) with respect to any discovery by telephone conference held under
the parties, a party wishing to propound motion requesting the taking of a paragraph (c)(3) of this section.
interrogatories must file a motion under deposition. The order will: (2) After the deposition has been
§ 45.41(c). (1) Grant the motion and approve the taken, the person recording the
(b) ALJ order. During or promptly taking of the deposition, subject to any deposition must:
after the initial prehearing conference, conditions or restrictions the ALJ may (i) Provide a copy of the videotape to
the ALJ will issue an order under impose; or any party that requests it, at the
§ 45.41(b) with respect to any discovery (2) Deny the motion. requesting party’s expense; and
motion requesting the use of written (c) Arrangements. If the parties agree (ii) Attach to the videotape a
interrogatories. The order will: to or the ALJ approves the taking of the statement identifying the case and the
deponent and certifying the authenticity (3) Order that the party not introduce if he or she had been subpoenaed.
of the video recording. into evidence, or otherwise rely on to However, this paragraph does not apply
(h) Use of deposition. A deposition support its case, any information, to federal employees who are called as
may be used at the hearing as provided testimony, document, or other evidence: witnesses by a bureau or other
in § 45.53. (i) That the party improperly Department.
withheld; or (d) Motion to quash. (1) A person to
§ 45.45 What are the requirements for
(ii) That the party obtained from whom a subpoena is directed may
requests for documents or tangible things
or entry on land? another party in discovery; request by motion that the ALJ quash or
(4) Allow another party to use modify the subpoena.
(a) Motion. Except upon agreement of secondary evidence to show what the (2) The motion must be filed:
the parties, a party wishing to request information, testimony, document, or (i) Within 5 days after service of the
the production of designated documents other evidence withheld would have subpoena; or
or tangible things or entry on designated shown; or (ii) At or before the time specified in
land must file a motion under § 45.41(c). (5) Take other appropriate action to the subpoena for compliance, if that is
A request may include any of the remedy the party’s failure to comply. less than 5 days after service of the
following that are in the possession, subpoena.
custody, or control of another party: § 45.47 What are the requirements for (3) The ALJ may quash or modify the
(1) The production of designated subpoenas and witness fees?
subpoena if it:
documents for inspection and copying, (a) Request for subpoena. (1) Except (i) Is unreasonable;
other than documents that are already in as provided in paragraph (a)(2) of this (ii) Requires evidence during
the license proceeding record; section, any party may file a motion discovery that is not discoverable; or
(2) The production of designated requesting the ALJ to issue a subpoena (iii) Requires evidence during a
tangible things for inspection, copying, to the extent authorized by law for the hearing that is privileged or irrelevant.
testing, or sampling; or attendance of a person, the giving of (e) Enforcement. For good cause
(3) Entry on designated land or other testimony, or the production of shown, the ALJ may apply to the
property for inspection and measuring, documents or other relevant evidence appropriate United States District Court
surveying, photographing, testing, or during discovery or for the hearing. for the issuance of an order compelling
sampling either the property or any (2) A party may subpoena a senior the appearance and testimony of a
designated object or operation on the Department employee only if the party witness or the production of evidence as
property. shows:
(b) ALJ order. During or promptly set forth in a subpoena that has been
(i) That the employee’s testimony is duly issued and served.
after the initial prehearing conference, necessary in order to provide
the ALJ will issue an order under significant, unprivileged information Hearing, Briefing, and Decision
§ 45.41(b) with respect to any discovery that is not available from any other
motion requesting the production of § 45.50 When and where will the hearing
source or by less burdensome means; be held?
documents or tangible things or entry on and
land for inspection, copying, or other (a) Except as provided in paragraph
(ii) That the employee’s attendance
purposes. The order will: (b) of this section, the hearing will be
would not significantly interfere with
(1) Grant the motion and approve the held at the time and place set at the
the ability to perform his or her
use of some or all of the proposed initial prehearing conference under
government duties.
requests; or § 45.40, generally within 15 days after
(b) Service. (1) A subpoena may be
(2) Deny the motion. the date set for completion of discovery.
served by any person who is not a party
(c) Compliance with order. Except (b) On motion by a party or on the
and is 18 years of age or older.
upon agreement of the parties, the party ALJ’s initiative, the ALJ may change the
(2) Service must be made by hand
to whom any approved request for date, time, or place of the hearing if he
delivering a copy of the subpoena to the
production is directed must permit the or she finds:
person named therein.
approved inspection and other activities (3) The person serving the subpoena (1) That there is good cause for the
within 15 days after issuance of the must: change; and
order under paragraph (a) of this (i) Prepare a certificate of service (2) That the change will not unduly
section. setting forth: prejudice the parties and witnesses.
§ 45.46 What sanctions may the ALJ (A) The date, time, and manner of § 45.51 What are the parties’ rights during
impose for failure to comply with service; or the hearing?
discovery? (B) The reason for any failure of Consistent with the provisions of this
(a) Upon motion of a party, the ALJ service; and subpart, each party has the following
may impose sanctions under paragraph (ii) Swear to or affirm the certificate, rights during the hearing, as necessary
(b) of this section if any party: attach it to a copy of the subpoena, and to assure full and accurate disclosure of
(1) Fails to comply with an order return it to the party on whose behalf the facts:
approving discovery; or the subpoena was served. (a) To present direct and rebuttal
(2) Fails to supplement or amend a (c) Witness fees. (1) A party who evidence;
response to discovery under § 45.42(a). subpoenas a witness who is not a party (b) To make objections, motions, and
(b) The ALJ may impose one or more must pay him or her the same fees and arguments; and
of the following sanctions: mileage expenses that are paid (c) To cross-examine witnesses and to
(1) Infer that the information, witnesses in the district courts of the conduct re-direct and re-cross
testimony, document, or other evidence United States. examination as permitted by the ALJ.
withheld would have been adverse to (2) A witness who is not a party and
the party; who attends a deposition or hearing at § 45.52 What are the requirements for
(2) Order that, for the purposes of the the request of any party without having presenting testimony?
hearing, designated facts are been subpoenaed to do so is entitled to (a) Written direct testimony. Unless
established; the same fees and mileage expenses as otherwise ordered by the ALJ, all direct
hearing testimony must be prepared and and is admitted into evidence, relevant (i) Relevant, reliable, and probative;
submitted in written form. portions will be played during the and
(1) Prepared written testimony must: hearing and transcribed into the record (ii) Not privileged or unduly
(i) Have line numbers inserted in the by the reporter. repetitious or cumulative.
left-hand margin of each page; (2) The ALJ may exclude evidence if
(ii) Be authenticated by an affidavit or § 45.54 What are the requirements for
exhibits, official notice, and stipulations? its probative value is substantially
declaration of the witness; outweighed by the risk of undue
(iii) Be filed within 5 days after the (a) General. (1) Except as provided in
prejudice, confusion of the issues, or
date set for completion of discovery, paragraphs (b) through (e) of this
delay.
unless the ALJ sets a different deadline; section, any material offered in
(3) Hearsay evidence is admissible.
and evidence, other than oral testimony,
(iv) Be offered as an exhibit during the The ALJ may consider the fact that
must be offered in the form of an
hearing. evidence is hearsay when determining
exhibit.
(2) Any witness submitting written (2) Each exhibit offered by a party its probative value.
testimony must be available for cross- must be marked for identification. (4) The Federal Rules of Evidence do
examination at the hearing. (3) Any party who seeks to have an not directly apply to the hearing, but
(b) Oral testimony. Oral examination exhibit admitted into evidence must may be used as guidance by the ALJ and
of a witness in a hearing, including on provide: the parties in interpreting and applying
cross-examination or redirect, must be (i) The original of the exhibit to the the provisions of this section.
conducted under oath and in the reporter, unless the ALJ permits the (b) Objections. Any party objecting to
presence of the ALJ, with an substitution of a copy; and the admission or exclusion of evidence
opportunity for all parties to question (ii) A copy of the exhibit to the ALJ. shall concisely state the grounds. A
the witness. (b) Material not offered. If a document ruling on every objection must appear in
(c) Telephonic testimony. The ALJ offered as an exhibit contains material the record.
may by order allow a witness to testify not offered as evidence: § 45.56 What are the requirements for
by telephonic conference call. (1) The party offering the exhibit transcription of the hearing?
(1) The arrangements for the call must must:
let each party listen to and speak to the (a) Transcript and reporter’s fees. The
(i) Designate the matter offered as
witness and each other within the hearing will be transcribed verbatim.
evidence;
hearing of the ALJ. (ii) Segregate and exclude the material (1) The Hearings Division will secure
(2) The ALJ will ensure the full not offered in evidence, to the extent the services of a reporter and pay the
identification of each speaker so the practicable; and reporter’s fees to provide an original
reporter can create a proper record. (iii) Provide copies of the entire transcript to the Hearings Division on an
(3) The ALJ may issue a subpoena document to the other parties appearing expedited basis.
under § 45.47 directing a witness to at the hearing. (2) Each party must pay the reporter
testify by telephonic conference call. (2) The ALJ must give the other for any copies of the transcript obtained
parties an opportunity to inspect the by that party.
§ 45.53 How may a party use a deposition
in the hearing? entire document and offer in evidence (b) Transcript Corrections. (1) Any
any other portions of the document. party may file a motion proposing
(a) In general. Subject to the
(c) Official notice. (1) At the request corrections to the transcript. The motion
provisions of this section, a party may
of any party at the hearing, the ALJ may must be filed within 5 days after receipt
use in the hearing any part or all of a
take official notice of any matter of of the transcript, unless the ALJ sets a
deposition taken under § 45.44 against
which the courts of the United States different deadline.
any party who:
(1) Was present or represented at the may take judicial notice, including the (2) Unless a party files a timely
taking of the deposition; or public records of any Department party. motion under paragraph (b)(1) of this
(2) Had reasonable notice of the taking (2) The ALJ must give the other section, the transcript will be presumed
of the deposition. parties appearing at the hearing an to be correct and complete, except for
(b) Admissibility. (1) No part of a opportunity to show the contrary of an obvious typographical errors.
deposition will be included in the officially noticed fact. (3) As soon as practicable after the
hearing record, unless received in (3) Any party requesting official close of the hearing and after
evidence by the ALJ. notice of a fact after the conclusion of consideration of any motions filed
(2) The ALJ will exclude from the hearing must show good cause for under paragraph (b)(1) of this section,
evidence any question and response to its failure to request official notice the ALJ will issue an order making any
which an objection: during the hearing. corrections to the transcript that the ALJ
(i) Was noted at the taking of the (d) Stipulations. (1) The parties may finds are warranted.
deposition; and stipulate to any relevant facts or to the
(ii) Would have been sustained if the § 45.57 What is the standard of proof?
authenticity of any relevant documents.
witness had been personally present (2) If received in evidence at the The standard of proof is a
and testifying at a hearing. hearing, a stipulation is binding on the preponderance of the evidence.
(3) If a party offers only part of a stipulating parties. § 45.58 When will the hearing record
deposition in evidence: (3) A stipulation may be written or close?
(i) An adverse party may require the made orally at the hearing.
party to introduce any other part that (a) The hearing record will close
ought in fairness to be considered with § 45.55 What evidence is admissible at the when the ALJ closes the hearing, unless
the part introduced; and hearing? he or she directs otherwise.
(ii) Any other party may introduce (a) General. (1) Subject to the (b) Evidence may not be added after
any other parts. provisions of § 45.42(b), the ALJ may the hearing record is closed, but the
(c) Videotaped deposition. If the admit any written, oral, documentary, or transcript may be corrected under
deposition was recorded on videotape demonstrative evidence that is: § 45.56(b).
§ 45.59 What are the requirements for rejected, or whether any proposed (3) An explanation of how the
post-hearing briefs? alternative should be adopted or alternative, as compared to the
(a) General. (1) Each party may file a rejected. preliminary condition or prescription,
post-hearing brief within 10 days after (c) Service. Promptly after issuing his will:
the close of the hearing, unless the ALJ or her decision, the ALJ must: (i) Cost significantly less to
sets a different deadline. (1) Serve the decision on each party implement; or
(2) A party may file a reply brief only to the hearing; and (ii) Result in improved operation of
if requested by the ALJ. The deadline for (2) Forward a copy of the decision to the project works for electricity
filing a reply brief, if any, will be set by FERC, along with the complete hearing production;
the ALJ. record, for inclusion in the license (4) An explanation of how the
(3) The ALJ may limit the length of proceeding record. alternative will affect:
the briefs to be filed under this section. (d) Finality. The ALJ’s decision under (i) Energy supply, distribution, cost,
(b) Content. (1) An initial brief must this section will be final, with respect to and use;
include: the disputed issues of material fact, for (ii) Flood control;
(i) A concise statement of the case; any Department involved in the hearing. (iii) Navigation;
(ii) A separate section containing To the extent the ALJ’s decision forms (iv) Water supply;
proposed findings regarding the issues the basis for any condition or (v) Air quality; and
of material fact, with supporting prescription subsequently included in (vi) Other aspects of environmental
citations to the hearing record; the license, it may be subject to judicial quality; and
(iii) Arguments in support of the review under 16 U.S.C. 825l(b). (5) Specific citations to any scientific
party’s position; and studies, literature, and other
(iv) Any other matter required by the Subpart C—Alternatives Process documented information relied on to
ALJ. § 45.70 How must documents be filed and support your proposal, including any
(2) A reply brief, if requested by the served under this subpart? assumptions you are making (e.g.,
ALJ, must be limited to any issues (a) Filing. (1) A document under this regarding the cost of energy or the rate
identified by the ALJ. subpart must be filed using one of the of inflation). If any such document is
(c) Form. (1) An exhibit admitted in methods set forth in § 45.12(b). not already in the license proceeding
evidence or marked for identification in (2) A document is considered filed on record, you must provide a copy with
the record may not be reproduced in the the date it is received. However, any the proposal.
brief. document received after 5 p.m. at the
(i) Such an exhibit may be § 45.72 What will the bureau do with a
place where the filing is due is proposed alternative?
reproduced, within reasonable limits, in considered filed on the next regular
an appendix to the brief. If any license party proposes an
business day.
(ii) Any pertinent analysis of an alternative to a preliminary condition or
(b) Service. (1) Any document filed
exhibit may be included in a brief. prescription under § 45.71(a)(1), the
under this subpart must be served at the
(2) If a brief exceeds 20 pages, it must bureau must do the following within 60
same time the document is delivered or
contain: days after the deadline for filing
sent for filing. A complete copy of the
(i) A table of contents and of points comments to FERC’s NEPA document
document must be served on each
made, with page references; and under 18 CFR 5.25(c):
license party and FERC, using:
(ii) An alphabetical list of citations to (i) One of the methods of service in (a) Analyze the alternative under
legal authority, with page references. § 45.13(c); or § 45.73; and
(ii) Regular mail. (b) File with FERC:
§ 45.60 What are the requirements for the (1) Any condition or prescription that
ALJ’s decision? (2) The provisions of § 45.13(d) and
(e) regarding acknowledgment and the bureau adopts as its modified
(a) Timing. The ALJ must issue a condition or prescription; and
certificate of service apply to service
decision within the shorter of the (2) Its analysis of the modified
under this subpart.
following time periods: condition or prescription and any
(1) 30 days after the close of the § 45.71 How do I propose an alternative? proposed alternatives under § 45.73(c).
hearing under § 45.58; or (a) General. To propose an alternative,
(2) 90 days after issuance of the § 45.73 How will the bureau analyze a
you must:
referral notice under § 45.25(c), 7 CFR proposed alternative and formulate its
(1) Be a license party; and modified condition or prescription?
1.625(c), or 50 CFR 221.25(c). (2) File a written proposal with OEPC
(b) Content. (1) The decision must within 30 days after the deadline for the (a) In deciding whether to adopt a
contain: bureau to file preliminary conditions or proposed alternative, the bureau must
(i) Findings of fact on all disputed prescriptions with FERC. consider evidence and supporting
issues of material fact; (b) Content. Your proposal must material provided by any license party
(ii) Conclusions of law necessary to include: or otherwise available to the bureau,
make the findings of fact (such as (1) A description of the alternative, in including:
rulings on materiality and on the an equivalent level of detail to the (1) Any evidence on the
admissibility of evidence); and bureau’s preliminary condition or implementation costs or operational
(iii) Reasons for the findings and prescription; impacts for electricity production of the
conclusions. (2) An explanation of how the proposed alternative;
(2) The ALJ may adopt any of the alternative: (2) Any comments received on the
findings of fact proposed by one or more (i) If a condition, will provide for the bureau’s preliminary condition or
of the parties. adequate protection and utilization of prescription;
(3) The decision will not contain the reservation; or (3) Any ALJ decision on disputed
conclusions as to whether any (ii) If a prescription, will be no less issues of material fact issued under
preliminary condition or prescription protective than the fishway prescribed § 45.60 with respect to the preliminary
should be adopted, modified, or by the bureau; condition or prescription;
(4) Comments received on any draft or Department of Commerce 221.43 What are the requirements for
final NEPA documents; and written interrogatories?
(5) The license party’s proposal under 50 CFR Chapter II 221.44 What are the requirements for
§ 45.71. depositions?
■ 3. The Department of Commerce adds 221.45 What are the requirements for
(b) The bureau must adopt a proposed part 221, title 50, to read as follows: requests for documents or tangible things
alternative if the bureau determines, or entry on land?
based on substantial evidence provided PART 221—PRESCRIPTIONS IN FERC 221.46 What sanctions may the ALJ impose
by any license party or otherwise HYDROPOWER LICENSES for failure to comply with discovery?
available to the bureau, that the 221.47 What are the requirements for
alternative: Subpart A—General Provisions subpoenas and witness fees?
(1) Will, as compared to the bureau’s
Sec. Hearing, Briefing, and Decision
preliminary condition or prescription: 221.1 What is the purpose of this part, and
(i) Cost significantly less to 221.50 When and where will the hearing be
to what license proceedings does it held?
implement; or apply?
(ii) Result in improved operation of 221.51 What are the parties’ rights during
221.2 What terms are used in this part? the hearing?
the project works for electricity 221.3 How are time periods computed? 221.52 What are the requirements for
production; and 221.4 What deadlines apply to pending presenting testimony?
(2) Will: applications? 221.53 How may a party use a deposition in
(i) If a condition, provide for the the hearing?
adequate protection and utilization of Subpart B—Hearing Process 221.54 What are the requirements for
the reservation; or exhibits, official notice, and stipulations?
(ii) If a prescription, be no less Representatives
221.55 What evidence is admissible at the
protective than the bureau’s preliminary 221.10 Who may represent a party, and hearing?
prescription. what requirements apply to a 221.56 What are the requirements for
(c) When the bureau files with FERC representative? transcription of the hearing?
the condition or prescription that the 221.57 What is the standard of proof?
Document Filing and Service 221.58 When will the hearing record close?
bureau adopts as its modified condition
221.11 What are the form and content 221.59 What are the requirements for post-
or prescription under §§ 45.72(b), it hearing briefs?
must also file: requirements for documents under this
subpart? 221.60 What are the requirements for the
(1) A written statement explaining: ALJ’s decision?
(i) The basis for the adopted condition 221.12 Where and how must documents be
filed?
or prescription; and 221.13 What are the requirements for Subpart C—Alternatives Process
(ii) If the bureau is not adopting any service of documents?
alternative, its reasons for not doing so; 221.70 How must documents be filed and
and Initiation of Hearing Process served under this subpart?
(2) Any study, data, and other factual 221.71 How do I propose an alternative?
221.20 What supporting information must 221.72 What will NMFS do with a proposed
information relied on that is not already NMFS provide with its preliminary alternative?
part of the licensing proceeding record. prescriptions? 221.73 How will NMFS analyze a proposed
(d) The written statement under 221.21 How do I request a hearing? alternative and formulate its modified
paragraph (c)(1) of this section must 221.22 How do I file a notice of prescription?
demonstrate that the bureau gave equal intervention and response?
consideration to the effects of the 221.23 When will hearing requests be § 221.74 Has OMB approved the
condition or prescription adopted and consolidated? information collection provisions of this
221.24 How will NMFS respond to any subpart?
any alternative not adopted on:
hearing requests?
(1) Energy supply, distribution, cost, Authority: 16 U.S.C. 797(e), 811, 823d.
221.25 What will NMFS do with any
and use; hearing requests?
(2) Flood control; Subpart A—General Provisions
221.26 What regulations apply to a case
(3) Navigation; referred for a hearing? § 221.1 What is the purpose of this part,
(4) Water supply;
and to what license proceedings does it
(5) Air quality; and General Provisions Related to Hearings
apply?
(6) Preservation of other aspects of 221.30 What will the Department of
environmental quality. (a) Hearing process. (1) The
Commerce’s designated ALJ office do regulations in subparts A and B of this
§ 45.74 Has OMB approved the information with a case referral? part contain rules of practice and
collection provisions of this subpart? 221.31 What are the powers of the ALJ?
221.32 What happens if the ALJ becomes
procedure applicable to hearings on
Yes. This rule contains provisions unavailable? disputed issues of material fact with
that would collect information from the 221.33 Under what circumstances may the respect to mandatory prescriptions that
public. It therefore requires approval by ALJ be disqualified? the Department of Commerce, acting
the Office of Management and Budget 221.34 What is the law governing ex parte through the National Oceanic and
(OMB) under the Paperwork Reduction communications? Atmospheric Administration’s National
Act of 1995, 44 U.S.C. 3501 et seq. 221.35 What are the requirements for Marine Fisheries Service (NMFS) may
(PRA). According to the PRA, a Federal motions? develop for inclusion in a hydropower
agency may not conduct or sponsor, and Prehearing Conferences and Discovery license issued by the Federal Energy
a person is not required to respond to, Regulatory Commission (FERC) under
a collection of information unless it 221.40 What are the requirements for subchapter I of the Federal Power Act
prehearing conferences?
displays a currently valid OMB control 221.41 How may parties obtain discovery of
(FPA), 16 U.S.C. 791 et seq. The
number that indicates OMB approval. information needed for the case? authority to develop these prescriptions
OMB has reviewed the information 221.42 When must a party supplement or is granted by FPA section 18, 16 U.S.C.
collection in this rule and approved it amend information it has previously 811, which authorizes the Secretary of
under OMB control number 1094–0001. provided? Commerce to prescribe fishways.
(2) The hearing process under this the special applicability provisions of Conservation. Address: Chief, Habitat
part does not apply to recommendations § 221.4 also apply. Protection Division, Office of Habitat
that the Department of Commerce may Conservation, National Marine Fisheries
§ 221.2 What terms are used in this part?
submit to FERC under FPA section 10(a) Service, 1315 East-West Highway, Silver
or (j), 16 U.S.C. 803(a), (j). As used in this part: Spring, MD 20910. Telephone 301–713–
(3) The FPA also grants the ALJ means an administrative law 4300. Facsimile number 301–713–4305.
Department of Agriculture and Interior judge appointed under 5 U.S.C. 3105 Party means, with respect to NMFS’s
the authority to develop mandatory and assigned to preside over the hearing hearing process under subpart B of this
conditions, and the Department of the process under subpart B of this part. part:
Interior the authority to develop Alternative means a prescription that (1) A license party that has filed a
mandatory prescriptions, for inclusion a license party other than NMFS or timely request for a hearing under:
in a hydropower license. Where the another Department develops as an (i) Section 221.21; or
Department of Commerce and either or alternative to a preliminary prescription (ii) Either 7 CFR 1.621 or 43 CFR
both of these other Departments develop from NMFS or another Department, 45.21, with respect to a hearing process
conditions or prescriptions to be under FPA sec. 33, 16 U.S.C. 823d. consolidated under § 221.23;
included in the same hydropower Condition means a condition under
(2) A license party that has filed a
license and where the Departments FPA sec. 4(e), 16 U.S.C. 797(e), for the
timely notice of intervention and
agree to consolidate the hearings under adequate protection and utilization of a
response under:
§ 221.23: reservation.
Day means a calendar day. (i) Section 221.22; or
(i) A hearing conducted under this (ii) Either 7 CFR 1.622 or 43 CFR
Department means the Department of
part will also address disputed issues of 45.22, with respect to a hearing process
Agriculture, Department of Commerce,
material fact with respect to any consolidated under § 221.23;
or Department of the Interior.
condition or prescription developed by Department of Commerce’s (3) NMFS, if it has filed a preliminary
one of the other Departments; or designated ALJ office means the ALJ prescription; and
(ii) A hearing requested under this (4) Any other Department that has
office that is assigned to preside over
part will be conducted by one of the filed a preliminary condition or
the hearings process for NMFS.
other Departments, pursuant to 7 CFR Discovery means a prehearing process prescription, with respect to a hearing
1.601 et seq. or 43 CFR 45.1 et seq., as for obtaining facts or information to process consolidated under § 221.23.
applicable. assist a party in preparing or presenting Person means an individual; a
(4) The regulations in subparts A and partnership, corporation, association, or
its case.
B of this part will be construed and Ex parte communication means an other legal entity; an unincorporated
applied to each hearing process to oral or written communication to the organization; and any federal, state,
achieve a just and speedy ALJ that is made without providing all tribal, county, district, territorial, or
determination, consistent with adequate parties reasonable notice and an local government or agency.
consideration of the issues involved and opportunity to participate. Preliminary condition or prescription
the provisions of § 221.60(a). FERC means the Federal Energy means a preliminary condition or
(b) Alternatives process. The Regulatory Commission. prescription filed by a Department with
regulations in subparts A and C of this FPA means the Federal Power Act, 16 FERC under 18 CFR 4.34(b), 4.34(i), or
part contain rules of procedure U.S.C. 791 et seq. 5.22(a) for potential inclusion in a
applicable to the submission and Intervention means a process by hydropower license.
consideration of alternative which a person who did not request a Prescription means a fishway
prescriptions under FPA section 33, 16 hearing under § 221.21 can participate prescribed under FPA sec. 18, 16 U.S.C.
U.S.C. 823d. That section allows any as a party to the hearing under § 221.22. 811, to provide for the safe, timely, and
party to the license proceeding to License party means a party to the effective passage of fish.
propose an alternative to a fishway license proceeding, as that term is Representative means a person who:
prescribed by NMFS under section 18. defined at 18 CFR 385.102(c). (1) Is authorized by a party to
(c) Reservation of authority. Where License proceeding means a represent the party in a hearing process
NMFS notifies FERC that it is reserving proceeding before FERC for issuance of under this subpart; and
its authority to develop one or more a license for a hydroelectric facility (2) Has filed an appearance under
prescriptions during the term of the under 18 CFR parts 4 or 5. § 221.10.
license, the hearing and alternatives Material fact means a fact that, if Secretary means the Secretary of
processes under this part for such proved, may affect a Department’s Commerce or his or her designee.
prescriptions will be available if and decision whether to affirm, modify, or Senior Department employee has the
when NMFS exercises its reserved withdraw any condition or prescription. same meaning as the term ‘‘senior
authority. NMFS will consult with NEPA document means an employee’’ in 5 CFR 2637.211(a).
FERC and notify the license parties environmental assessment or You refers to a party other than a
regarding how to initiate the hearing environmental impact statement issued Department.
process and alternatives process at that to comply with the requirements of the
time. National Environmental Policy Act of § 221.3 How are time periods computed?
(d) Applicability. (1) This part applies 1969, 42 U.S.C. 4321 et seq. (a) General. Time periods are
to any hydropower license proceeding NMFS means the National Marine computed as follows:
for which the license has not been Fisheries Service, a constituent agency (1) The day of the act or event from
issued as of November 17, 2005 and for of the Department of Commerce, acting which the period begins to run is not
which one or more preliminary by and through the Assistant included.
prescriptions or prescriptions have been Administrator for Fisheries or one of (2) The last day of the period is
or are filed with FERC. NMFS’s six Regional Administrators, as included.
(2) If NMFS has already filed one or appropriate. (i) If that day is a Saturday, Sunday,
more preliminary prescriptions or Office of Habitat Conservation means or federal holiday, the period is
prescriptions as of November 17, 2005, the NMFS Office of Habitat extended to the next business day.
(ii) The last day of the period ends at (c) Alternatives process. (1) Any the highest court of a state, the District
5 p.m. at the place where the filing or alternative under § 221.71 must be filed of Columbia, or any territory or
other action is due. with the Office of Habitat Conservation commonwealth of the United States
(3) If the period is less than 7 days, by December 19, 2005. (identifying which one); and
any Saturday, Sunday, or federal (2) Upon receipt of an alternative (4) If the representative is not an
holiday that falls within the period is under paragraph (c)(1) of this section, if attorney, include a statement explaining
not included. no hearing request is filed under his or her authority to represent the
(b) Extensions of time. (1) No paragraph (b)(1) of this section, NMFS entity.
extension of time can be granted to file must do the following by February 15, (d) Disqualification. The ALJ may
a request for a hearing under § 221.21, 2006: disqualify any representative for
a notice of intervention and response (i) Determine jointly with any other misconduct or other good cause.
under § 221.22, an answer under Department that has received a related
§ 221.24, or any document under alternative, after consultation with Document Filing and Service
subpart C of this part. FERC, a time frame for the filing of a § 221.11 What are the form and content
(2) An extension of time to file any modified prescription under § 221.72(b); requirements for documents under this
other document under subpart B of this and subpart?
part may be granted only upon a (ii) Issue a notice to the license party (a) Form. Each document filed in a
showing of good cause. that has submitted the alternative, case under this subpart must:
(i) To request an extension of time, a specifying the time frame for the filing (1) Measure 81⁄2 by 11 inches, except
party must file a motion under § 221.35 of a modified prescription. that a table, chart, diagram, or other
stating how much additional time is (3) Upon receipt of an alternative attachment may be larger if folded to
needed and the reasons for the request. under paragraph (c)(1) of this section, if 81⁄2 by 11 inches and attached to the
(ii) The party must file the motion a hearing request is also filed under document;
before the applicable time period paragraph (b)(1) of this section, NMFS (2) Be printed on just one side of the
expires, unless the party demonstrates will follow the provisions of paragraph page;
extraordinary circumstances that justify (b)(3) of this section. (3) Be clearly typewritten, printed, or
a delay in filing. otherwise reproduced by a process that
(iii) The ALJ may grant the extension Subpart B—Hearing Process
yields legible and permanent copies;
only if: Representatives (4) Use 10 point font size or larger;
(A) It would not unduly prejudice (5) Be double-spaced except for
other parties; and § 221.10 Who may represent a party, and
footnotes and long quotations, which
(B) It would not delay the decision what requirements apply to a
may be single-spaced;
under § 221.60. representative?
(6) Have margins of at least 1 inch;
(a) Individuals. A party who is an
§ 221.4 What deadlines apply to pending and
individual may either represent himself
applications? (7) Be bound on the left side, if
or herself in the hearing process under
(a) Applicability. (1) This section bound.
this subpart or authorize an attorney to
applies to any case in which NMFS has (b) Caption. Each document filed
represent him or her.
filed a preliminary prescription or under this subpart must begin with a
(b) Organizations. A party that is an
prescription with FERC before caption that sets forth:
organization or other entity may
November 17, 2005 and FERC has not (1) The name of the case under this
authorize one of the following to
issued a license as of that date. subpart and the docket number, if one
represent it:
(2) The deadlines in this section will (1) An attorney; has been assigned;
apply in such a case, in lieu of any (2) A partner, if the entity is a (2) The name and docket number of
inconsistent deadline in other sections partnership; the license proceeding to which the case
of this part. (3) An officer or full-time employee, under this subpart relates; and
(b) Hearing process. (1) Any request if the entity is a corporation, (3) A descriptive title for the
for a hearing under § 221.21 must be association, or unincorporated document, indicating the party for
filed with the Office of Habitat organization; whom it is filed and the nature of the
Conservation by December 19, 2005. (4) A receiver, administrator, document.
(2) Any notice of intervention and executor, or similar fiduciary, if the (c) Signature. The original of each
response under § 221.22 must be filed entity is a receivership, trust, or estate; document filed under this subpart must
by January 3, 2006. or be signed by the representative of the
(3) Upon receipt of a hearing request (5) An elected or appointed official or person for whom the document is filed.
under paragraph (b)(1) of this section, an employee, if the entity is a federal, The signature constitutes a certification
NMFS must do the following by March state, tribal, county, district, territorial, by the representative that he or she has
17, 2006: or local government or component. read the document; that to the best of
(i) Comply with the requirements of (c) Appearance. A representative his or her knowledge, information, and
§ 221.23; must file a notice of appearance. The belief, the statements made in the
(ii) Determine jointly with any other notice must: document are true; and that the
Department that has received a hearing (1) Meet the form and content document is not being filed for the
request, after consultation with FERC, a requirements for documents under purpose of causing delay.
time frame for the hearing process and § 221.11; (d) Contact information. Below the
a corresponding deadline for NMFS to (2) Include the name and address of representative’s signature, the document
file an answer under § 221.24; and the person on whose behalf the must provide the representative’s name,
(iii) Issue a notice to each party appearance is made; mailing address, street address (if
specifying the time frame for the hearing (3) If the representative is an attorney, different), telephone number, facsimile
process, including the deadline for include a statement that he or she is a number (if any), and electronic mail
NMFS to file an answer. member in good standing of the bar of address (if any).
§ 221.12 Where and how must documents notified of the defect and given a chance certificate must be signed by the party’s
be filed? to correct it. representative and include the following
(a) Place of filing. Any documents information:
§ 221.13 What are the requirements for (1) The name, address, and other
relating to a case under this subpart
service of documents?
must be filed with the appropriate contact information of each party’s
office, as follows: (a) Filed documents. Any document representative on whom the document
(1) Before NMFS refers a case for related to a case under this subpart must was served;
docketing under § 221.25, any be served at the same time the (2) The means of service, including
documents must be filed with the Office document is delivered or sent for filing. information indicating compliance with
of Habitat Conservation. The Office of Copies must be served as follows: paragraph (c)(3) or (c)(4) of this section,
Habitat Conservation’s address, (1) A complete copy of any request for if applicable; and
telephone number, and facsimile a hearing under § 221.21 must be served (3) The date of service.
number are set forth in § 221.2. on FERC and each license party, using
one of the methods of service in Initiation of Hearing Process
(2) NMFS will notify the parties of the
date on which it refers a case for paragraph (c) of this section. § 221.20 What supporting information
docketing under § 221.25. After that (2) A complete copy of any notice of must NMFS provide with its preliminary
date, any documents must be filed with: intervention and response under prescriptions?
§ 221.22 must be: (a) Supporting information. (1) When
(i) The Department of Commerce’s
(i) Served on FERC, the license NMFS files a preliminary prescription
designated ALJ office. The name,
applicant, any person who has filed a with FERC, it must include a rationale
address, telephone number, and
request for hearing under § 221.21, and for the prescription and an index to
facsimile number of the Department of
NMFS, using one of the methods of NMFS’s administrative record that
Commerce’s designated ALJ office will
service in paragraph (c) of this section; identifies all documents relied upon.
be provided in the referral notice from
and (2) If any of the documents relied
NMFS; or
(ii) Sent to any other license party upon are not already in the license
(ii) The hearings component of or
using regular mail. proceeding record, NMFS must:
used by another Department, if that (3) A complete copy of any other filed
Department will be conducting the (i) File them with FERC at the time it
document must be served on each party, files the preliminary prescription; and
hearing under § 221.25. The name, using one of the methods of service in
address, telephone number, and (ii) Provide copies to the license
paragraph (c) of this section. applicant.
facsimile number of the appropriate (b) Documents issued by the ALJ. A
hearings component will be provided in (b) Service. NMFS will serve a copy
complete copy of any notice, order, of its preliminary prescription on each
the referral notice from NMFS. decision, or other document issued by
(b) Method of filing. (1) A document license party.
the ALJ under this subpart must be
must be filed with the appropriate office served on each party, using one of the § 221.21 How do I request a hearing?
under paragraph (a) of this section using methods of service in paragraph (c) of (a) General. To request a hearing on
one of the following methods: this section. disputed issues of material fact with
(i) By hand delivery of the original (c) Method of service. Service must be respect to any prescription filed by
document; accomplished by one of the following NMFS, you must:
(ii) By sending the original document methods: (1) Be a license party; and
by express mail or courier service for (1) By hand delivery of the document; (2) File with the Office of Habitat
delivery on the next business day; or (2) By sending the document by Conservation a written request for a
(iii) By sending the document by express mail or courier service for hearing within 30 days after the
facsimile if: delivery on the next business day; deadline for the Departments to file
(A) The document is 20 pages or less, (3) By sending the document by preliminary prescriptions with FERC.
including all attachments; facsimile if: (b) Content. Your hearing request
(B) The sending facsimile machine (i) The document is 20 pages or less, must contain:
confirms that the transmission was including all attachments; (1) A numbered list of the factual
successful; and (ii) The sending facsimile machine issues that you allege are in dispute,
(C) The original of the document is confirms that the transmission was each stated in a single, concise sentence;
sent by regular mail on the same day. successful; and and
(2) Parties are encouraged, but not (iii) The document is sent by regular (2) The following information with
required to supplement any original mail on the same day; or respect to each issue:
document by providing the appropriate (4) By sending the document, (i) The specific factual statements
office with an electronic copy of the including all attachments, by electronic made or relied upon by [the bureau]
document on compact disc. mail if: under § 221.20(a) that you dispute;
(c) Date of filing. A document under (i) A copy of the document is sent by (ii) The basis for your opinion that
this subpart is considered filed on the regular mail on the same day; and those factual statements are unfounded
date it is received. However, any (ii) The party acknowledges receipt of or erroneous;
document received after 5 p.m. at the the document by close of the next (iii) The basis for your opinion that
place where the filing is due is business day. any factual dispute is material; and
considered filed on the next regular (d) Acknowledgment of service. Any (iv) With respect to any scientific
business day. party who receives a document under studies, literature, and other
(d) Nonconforming documents. If any this subpart by electronic mail must documented information supporting
document submitted for filing under promptly send a reply electronic mail your opinions under paragraphs
this subpart does not comply with the message acknowledging receipt. (b)(2)(ii) and (b)(2)(iii) of this section,
requirements of this subpart or any (e) Certificate of service. A certificate specific citations to the information
applicable order, it may be rejected. If of service must be attached to each relied upon. If any such document is not
the defect is minor, the party may be document filed under this subpart. The already in the license proceeding
record, you must provide a copy with (2) For each exhibit listed, you must with respect to the issues of material
the request. specify whether it is in the license fact raised by the requester, including
(c) Witnesses and exhibits. Your proceeding record. one or more of the following statements
hearing request must also list the (d) Page limits. (1) For each disputed as appropriate:
witnesses and exhibits that you intend factual issue, the information provided (i) That NMFS is willing to stipulate
to present at the hearing, other than under paragraph (b) of this section may to the facts as alleged by the requester;
solely for impeachment purposes. not exceed two pages. (ii) That NMFS believes the issue
(1) For each witness listed, you must (2) For each witness, the information listed by the requester is not a factual
provide: provided under paragraph (c)(1) of this issue, explaining the basis for such
(i) His or her name, address, section may not exceed one page. belief;
telephone number, and qualifications; (iii) That NMFS believes the issue
and § 221.23 When will hearing requests be listed by the requester is not material,
consolidated? explaining the basis for such belief; or
(ii) A brief narrative summary of his
or her expected testimony. (a) Initial Department coordination. If (iv) That NMFS agrees that the issue
(2) For each exhibit listed, you must NMFS has received a copy of a hearing is factual, material, and in dispute.
specify whether it is in the license request, it must contact the other (2) The answer must also indicate
proceeding record. Departments within 10 days after the whether the hearing request will be
(d) Page limits. (1) For each disputed deadline for filing hearing requests consolidated with one or more other
factual issue, the information provided under § 221.21 and determine: hearing requests under § 221.23 and, if
under paragraph (b)(2) of this section (1) Whether any of the other so:
may not exceed two pages. Departments has also filed a preliminary (i) Identify any other hearing request
(2) For each witness, the information condition or prescription relating to the that will be consolidated with this
provided under paragraph (c)(1) of this license with FERC; and hearing request; and
section may not exceed one page. (2) If so, whether the other (ii) State which Department will
Departments have also received a conduct the hearing and provide contact
§ 221.22 How do I file a notice of hearing request with respect to the information for the appropriate
intervention and response? preliminary condition or prescription. Department hearings component.
(a) General. (1) To intervene as a party (b) Decision on consolidation. Within (c) Witnesses and exhibits. NMFS’s
to the hearing process, you must: 25 days after the deadline for filing answer must also list the witnesses and
(i) Be a license party; and hearing requests under § 221.21, if exhibits that it intends to present at the
(ii) File with the Office of Habitat NMFS has received a hearing request, hearing, other than solely for
Conservation a notice of intervention NMFS must: impeachment purposes.
and a written response to any request (1) Consult with any other (1) For each witness listed, NMFS
for a hearing within 15 days after the Department that has also received a must provide:
date of service of the request for a hearing request; and (i) His or her name, address,
hearing. (2) Decide jointly with the other telephone number, and qualifications;
(2) A license party filing a notice of Department: and
intervention and response may not raise (ii) A brief narrative summary of his
(i) Whether to consolidate the cases
issues of material fact beyond those or her expected testimony.
for hearing under paragraphs (c)(3)(ii) (2) For each exhibit listed, NMFS
raised in the hearing request. through (c)(3)(iv) of this section; and
(b) Content. In your notice of must specify whether it is in the license
(ii) If so, which Department will
intervention and response you must proceeding record.
conduct the hearing on their behalf. (d) Page limits. (1) For each disputed
explain your position with respect to (c) Criteria. Cases will or may be
the issues of material fact raised in the factual issue, the information provided
consolidated as follows: under paragraph (b)(1) of this section
hearing request under § 221.21(b). (1) All hearing requests with respect
(1) If you agree with the information may not exceed two pages.
to any prescriptions from NMFS will be (2) For each witness, the information
provided by NMFS under § 221.20(a) or consolidated for hearing.
by the requester under § 221.21(b), your provided under paragraph (c)(1) of this
(2) Any or all of the following may be section may not exceed one page.
response may refer to NMFS’s consolidated for hearing if NMFS (e) Notice in lieu of answer. If NMFS
explanation or the requester’s hearing determines that there are common elects not to file an answer to a hearing
request for support. issues of material fact or that request:
(2) If you wish to rely on additional consolidation is otherwise appropriate: (1) NMFS is deemed to agree that the
information or analysis, your response (i) Two or more hearing requests with issues listed by the requester are factual,
must provide the same level of detail respect to prescriptions from NMFS and material, and in dispute;
with respect to the additional the Department of the Interior; or (2) NMFS may file a list of witnesses
information or analysis as required (ii) Two or more hearing requests with and exhibits with respect to the request
under § 221.21(b). respect to any condition from another only as provided in § 221.42(b); and
(c) Witnesses and exhibits. Your Department and any prescription from (3) NMFS must file a notice
response and notice must also list the NMFS. containing the information required by
witnesses and exhibits that you intend paragraph (b)(2) of this section, if the
to present at the hearing, other than § 221.24 How will NMFS respond to any
hearing request will be consolidated
solely for impeachment purposes. hearing requests?
with one or more other hearing requests
(1) For each witness listed, you must (a) General. NMFS will determine under § 221.23.
provide: whether to file an answer to any hearing
(i) His or her name, address, request under § 221.21. § 221.25 What will NMFS do with any
telephone number, and qualifications; (b) Content. If NMFS files an answer: hearing requests?
and (1) For each of the numbered factual (a) Case referral. Within 50 days after
(ii) A brief narrative summary of his issues listed under § 221.21(b)(1), the the deadline in § 221.21(a), NMFS will
or her expected testimony; and answer must explain NMFS’s position refer the case for a hearing as follows:
(1) If the hearing is to be conducted General Provisions Related to Hearings § 221.33 Under what circumstances may
by NMFS, NMFS will refer the case to the ALJ be disqualified?
the Department of Commerce’s § 221.30 What will the Department of (a) The ALJ may withdraw from a case
Commerce’s designated ALJ office do with
designated ALJ office. at any time the ALJ deems himself or
a case referral?
(2) If the hearing is to be conducted herself disqualified.
Within 5 days after issuance of the (b) At any time before issuance of the
by another Department, NMFS will refer
referral notice under § 221.25(c), 7 CFR ALJ’s decision, any party may move that
the case to the hearings component used
1.625(c), or 43 CFR 45.25(c): the ALJ disqualify himself or herself for
by that Department. (a) The Department of Commerce’s
(b) Content. The case referral will personal bias or other valid cause.
designated ALJ office must: (1) The party must file the motion
consist of the following: (1) Docket the case; promptly after discovering facts or other
(1) A copy of any preliminary (2) Assign an ALJ to preside over the reasons allegedly constituting cause for
prescription under § 221.20; hearing process and issue a decision; disqualification.
(2) The original of any hearing request and (2) The party must file with the
under § 221.21; (3) Issue a docketing notice that motion an affidavit or declaration
(3) The original of any notice of informs the parties of the docket setting forth the facts or other reasons in
intervention and response under number and the ALJ assigned to the detail.
§ 221.22; case; and (c) The ALJ must rule upon the
(4) The original of any answer under (b) The ALJ must issue a notice setting motion, stating the grounds for the
§ 221.24; and the time, place, and method for ruling.
(5) An original referral notice under conducting an initial prehearing (1) If the ALJ concludes that the
paragraph (c) of this section. conference under § 221.40. This notice motion is timely and meritorious, he or
(c) Notice. At the time NMFS refers may be combined with the docketing she must disqualify himself or herself
the case for a hearing, it must provide notice under paragraph (a)(3) of this and withdraw from the case.
a referral notice that contains the section. (2) If the ALJ does not disqualify
following information: § 221.31 What are the powers of the ALJ? himself or herself and withdraw from
(1) The name, address, telephone the case, the ALJ must continue with the
The ALJ will have all powers
number, and facsimile number of the hearing process and issue a decision.
necessary to conduct a fair, orderly,
Department hearings component that expeditious, and impartial hearing § 221.34 What is the law governing ex
will conduct the hearing; process, consistent with the parte communications?
(2) The name, address, and other requirements of § 221.60(a), including (a) Ex parte communications with the
contact information for the the powers to: ALJ or his or her staff are prohibited in
representative of each party to the (a) Administer oaths and affirmations; accordance with 5 U.S.C. 554(d).
hearing process; (b) Issue subpoenas to the extent (b) This section does not prohibit ex
(3) An identification of any other authorized by law; parte inquiries concerning case status or
hearing request that will be (c) Rule on motions; procedural requirements, unless the
consolidated with this hearing request; (d) Authorize discovery as provided inquiry involves an area of controversy
and for in this subpart; in the hearing process.
(4) The date on which NMFS is (e) Hold hearings and conferences;
referring the case for docketing. (f) Regulate the course of hearings; § 221.35 What are the requirements for
(g) Call and question witnesses; motions?
(d) Delivery and service. (1) NMFS
(h) Exclude any person from a hearing (a) General. Any party may apply for
must refer the case to the appropriate
or conference for misconduct or other an order or ruling on any matter related
Department hearings component by one
good cause; to the hearing process by presenting a
of the methods identified in
(i) Issue a decision consistent with motion to the ALJ. A motion may be
§ 221.12(b)(1)(i) through (b)(1)(ii).
§ 221.60(b) regarding any disputed presented any time after the Department
(2) NMFS must serve a copy of the issues of material fact relating to any of Commerce’s designated ALJ office
referral notice on FERC and each party Department’s condition or prescription issues a docketing notice under
to the hearing by one of the methods that has been referred to the ALJ for § 221.30.
identified in § 221.13(c)(1) and (c)(2). hearing; and (1) A motion made at a hearing may
§ 221.26 What regulations apply to a case (j) Take any other action authorized be stated orally on the record, unless the
referred for a hearing? by law. ALJ directs that it be reduced to writing.
(a) If NMFS refers the case to the (2) Any other motion must:
§ 221.32 What happens if the ALJ
Department of Commerce’s designated (i) Be in writing;
becomes unavailable?
(ii) Comply with the requirements of
ALJ office, the regulations in this (a) If the ALJ becomes unavailable or this subpart with respect to form,
subpart will continue to apply to the otherwise unable to perform the duties content, filing, and service; and
hearing process. described in § 221.31, the Department of (iii) Not exceed 10 pages.
(b) If NMFS refers the case to the Commerce’s designated ALJ office shall (b) Content. (1) Each motion must
United States Department of designate a successor. state clearly and concisely:
Agriculture’s Office of Administrative (b) If a hearing has commenced and (i) Its purpose and the relief sought;
Law Judges, the regulations at 7 CFR the ALJ cannot proceed with it, a (ii) The facts constituting the grounds
1.601 et seq. will apply from that point successor ALJ may do so. At the request for the relief sought; and
on. of a party, the successor ALJ may recall (iii) Any applicable statutory or
(c) If NMFS refers the case to the any witness whose testimony is material regulatory authority.
Department of the Interior’s Office of and disputed, and who is available to (2) A proposed order must accompany
Hearings and Appeals, the regulations at testify again without undue burden. The the motion.
43 CFR 45.1 et seq. will apply from that successor ALJ may, within his or her (c) Response. Except as otherwise
point on. discretion, recall any other witness. required by this part or by order of the
ALJ, any other party may file a response place of any conference. A conference (iii) Is not cumulative or repetitious;
to a written motion within 10 days after will ordinarily be held by telephone, and
service of the motion. When a party unless the ALJ orders otherwise. (iv) Is not privileged or protected from
presents a motion at a hearing, any other (d) Preparation. (1) Each party’s disclosure by applicable law;
party may present a response orally on representative must be fully prepared (3) That the scope of the discovery is
the record. for a discussion of all issues properly not unduly burdensome;
(d) Reply. Unless the ALJ orders before the conference, both procedural (4) That the method to be used is the
otherwise, no reply to a response may and substantive. The representative least burdensome method available;
be filed. must be authorized to commit the party (5) That any trade secrets or
(e) Effect of filing. Unless the ALJ that he or she represents respecting proprietary information can be
orders otherwise, the filing of a motion those issues. adequately safeguarded; and
does not stay the hearing process. (2) Before the date set for the initial (6) That the standards for discovery
(f) Ruling. The ALJ will rule on the prehearing conference, the parties’ under paragraphs (f) through (h) of this
motion as soon as practicable, either representatives must make a good faith section have been met, if applicable.
orally on the record or in writing. He or effort: (c) Motions. A party may initiate
she may summarily deny any dilatory, (i) To meet in person, by telephone, discovery:
repetitive, or frivolous motion. or by other appropriate means; and (1) Pursuant to an agreement of the
(ii) To reach agreement on discovery parties; or
Prehearing Conferences and Discovery (2) By filing a motion that:
and the schedule of remaining steps in
§ 221.40 What are the requirements for the hearing process. (i) Briefly describes the proposed
prehearing conferences? (e) Failure to attend. Unless the ALJ method(s), purpose, and scope of the
(a) Initial prehearing conference. The orders otherwise, a party that fails to discovery;
ALJ will conduct an initial prehearing attend or participate in a conference, (ii) Explains how the discovery meets
conference with the parties at the time after being served with reasonable the criteria in paragraphs (b)(1) through
specified in the docketing notice under notice of its time and place, waives all (b)(6) of this section; and
§ 221.30, on or about the 20th day after objections to any agreements reached in (iii) Attaches a copy of any proposed
issuance of the referral notice under the conference and to any consequent discovery request (written
§ 221.25(c). orders or rulings. interrogatories, notice of deposition, or
(1) The initial prehearing conference (f) Scope. During a conference, the request for production of designated
will be used: ALJ may dispose of any procedural documents or tangible things or for
(i) To identify, narrow, and clarify the matters related to the case. entry on designated land).
disputed issues of material fact and (g) Order. Within 2 days after the (d) Timing of motions. A party must
exclude issues that do not qualify for conclusion of each conference, the ALJ file any discovery motion under
review as factual, material, and must issue an order that recites any paragraph (c)(2) of this section within 7
disputed; agreements reached at the conference days after issuance of the referral notice
(ii) To consider the parties’ motions and any rulings made by the ALJ during under § 221.25(c).
for discovery under § 221.41 and to set or as a result of the conference. (e) Objections. (1) A party must file
a deadline for the completion of any objections to a discovery motion or
discovery; § 221.41 How may parties obtain discovery to specific portions of a proposed
of information needed for the case? discovery request within 7 days after
(iii) To discuss the evidence on which
each party intends to rely at the hearing; (a) General. By agreement of the service of the motion.
(iv) To set the deadline for submission parties or with the permission of the (2) An objection must explain how, in
of written testimony under § 221.52; and ALJ, a party may obtain discovery of the objecting party’s view, the discovery
(v) To set the date, time, and place of information to assist the party in sought does not meet the criteria in
the hearing. preparing or presenting its case. paragraphs (b)(1) through (b)(6) of this
(2) The initial prehearing conference Available methods of discovery are: section.
may also be used: (1) Written interrogatories; (f) Materials prepared for hearing. A
(i) To discuss limiting and grouping (2) Depositions as provided in party generally may not obtain
witnesses to avoid duplication; paragraph (h) of this section; and discovery of documents and tangible
(ii) To discuss stipulations of fact and (3) Requests for production of things otherwise discoverable under
of the content and authenticity of designated documents or tangible things paragraph (b) of this section if they were
documents; or for entry on designated land for prepared in anticipation of or for the
(iii) To consider requests that the ALJ inspection or other purposes. hearing by or for another party’s
take official notice of public records or (b) Criteria. Discovery may occur only representative (including the party’s
other matters; as agreed to by the parties or as attorney, expert, or consultant).
(iv) To discuss the submission of authorized by the ALJ in a written order (1) If a party wants to discover such
written testimony, briefs, or other or during a prehearing conference. The materials, it must show:
documents in electronic form; and ALJ may authorize discovery only if the (i) That it has substantial need of the
(v) To consider any other matters that party requesting discovery materials in preparing its own case; and
may aid in the disposition of the case. demonstrates: (ii) That the party is unable without
(b) Other conferences. The ALJ may in (1) That the discovery will not undue hardship to obtain the substantial
his or her discretion direct the parties to unreasonably delay the hearing process; equivalent of the materials by other
attend one or more other prehearing (2) That the information sought: means.
conferences, if consistent with the need (i) Will be admissible at the hearing (2) In ordering discovery of such
to complete the hearing process within or appears reasonably calculated to lead materials when the required showing
90 days. Any party may by motion to the discovery of admissible evidence; has been made, the ALJ must protect
request a conference. (ii) Is not already in the license against disclosure of the mental
(c) Notice. The ALJ must give the proceeding record or otherwise impressions, conclusions, opinions, or
parties reasonable notice of the time and obtainable by the party; legal theories of an attorney.
(g) Experts. Unless restricted by the why it was not feasible for the party to (1) The information may be obtained
ALJ, a party may discover any facts include the witness or exhibit on its list from an examination of records, or from
known or opinions held by an expert under §§ 221.21(c), 221.22(c), or a compilation, abstract, or summary
concerning any relevant matters that are 221.24(c). based on such records;
not privileged. Such discovery will be (c) Failure to disclose. (1) A party that (2) The burden of obtaining the
permitted only if: fails to disclose information required information from the records is
(1) The expert is expected to be a under §§ 221.21(c), 221.22(c), or substantially the same for all parties;
witness at the hearing; or 221.24(c), or paragraphs (a) or (b) of this (3) The answering party specifically
(2) The expert is relied on by another section, will not be permitted to identifies the individual records from
expert who is expected to be a witness introduce as evidence at the hearing which the requesting party may obtain
at the hearing, and the party shows: testimony from a witness or other the information and where the records
(i) That it has a compelling need for information that it failed to disclose. are located; and
the information; and (2) Paragraph (c)(1) of this section (4) The answering party provides the
(ii) That it cannot practicably obtain does not apply if the failure to disclose requesting party with reasonable
the information by other means. was substantially justified or is opportunity to examine the records and
(h) Limitations on depositions. (1) A harmless. make a copy, compilation, abstract, or
party may depose a witness only if the (3) Before or during the hearing, a summary.
party shows that the witness: party may object to the admission of
(i) Will be unable to attend the evidence under paragraph (c)(1) of this § 221.44 What are the requirements for
section. depositions?
hearing because of age, illness, or other
incapacity; or (4) The ALJ will consider the (a) Motion and notice. Except upon
(ii) Is unwilling to attend the hearing following in determining whether to agreement of the parties, a party wishing
voluntarily, and the party is unable to exclude evidence under paragraphs to take a deposition must file a motion
compel the witness’s attendance at the (c)(1) through (c)(3) of this section: under § 221.41(c). Any notice of
hearing by subpoena. (i) The prejudice to the objecting deposition filed with the motion must
(2) Paragraph (h)(1)(ii) of this section party; state:
does not apply to any person employed (ii) The ability of the objecting party (1) The time and place that the
by or under contract with the party to cure any prejudice; deposition is to be taken;
(iii) The extent to which presentation (2) The name and address of the
seeking the deposition.
(3) A party may depose a senior of the evidence would disrupt the person before whom the deposition is to
Department employee only if the party orderly and efficient hearing of the case; be taken;
(iv) The importance of the evidence; (3) The name and address of the
shows:
and witness whose deposition is to be taken;
(i) That the employee’s testimony is (v) The reason for the failure to
necessary in order to provide and
disclose, including any bad faith or (4) Any documents or materials that
significant, unprivileged information willfulness regarding the failure.
that is not available from any other the witness is to produce.
source or by less burdensome means; § 221.43 What are the requirements for (b) ALJ order. During or promptly
and written interrogatories? after the initial prehearing conference,
(ii) That the deposition would not (a) Motion. Except upon agreement of the ALJ will issue an order under
significantly interfere with the the parties, a party wishing to propound § 221.41(b) with respect to any
employee’s ability to perform his or her interrogatories must file a motion under discovery motion requesting the taking
government duties. § 221.41(c). of a deposition. The order will:
(i) Completion of discovery. All (b) ALJ order. During or promptly (1) Grant the motion and approve the
discovery must be completed within 25 after the initial prehearing conference, taking of the deposition, subject to any
days after the initial prehearing the ALJ will issue an order under conditions or restrictions the ALJ may
conference, unless the ALJ sets a § 221.41(b) with respect to any impose; or
different deadline. discovery motion requesting the use of (2) Deny the motion.
written interrogatories. The order will: (c) Arrangements. If the parties agree
§ 221.42 When must a party supplement or (1) Grant the motion and approve the to or the ALJ approves the taking of the
amend information it has previously use of some or all of the proposed deposition, the party requesting the
provided? deposition must make appropriate
interrogatories; or
(a) Discovery. A party must promptly (2) Deny the motion. arrangements for necessary facilities and
supplement or amend any prior (c) Answers to interrogatories. Except personnel.
response to a discovery request if it upon agreement of the parties, the party (1) The deposition will be taken at the
learns that the response: to whom the proposed interrogatories time and place agreed to by the parties
(1) Was incomplete or incorrect when are directed must file its answers to any or indicated in the ALJ’s order.
made; or interrogatories approved by the ALJ (2) The deposition may be taken
(2) Though complete and correct within 15 days after issuance of the before any disinterested person
when made, is now incomplete or order under paragraph (b) of this authorized to administer oaths in the
incorrect in any material respect. section. place where the deposition is to be
(b) Witnesses and exhibits. (1) Within (1) Each approved interrogatory must taken.
5 days after the date set for completion be answered separately and fully in (3) Any party that objects to the taking
of discovery, each party must file an writing. of a deposition because of the
updated version of the list of witnesses (2) The party or its representative disqualification of the person before
and exhibits required under must sign the answers to interrogatories whom it is to be taken must do so:
§§ 221.21(c), 221.22(c), or 221.24(c). under oath or affirmation. (i) Before the deposition begins; or
(2) If a party wishes to include any (d) Access to records. A party’s (ii) As soon as the disqualification
new witness or exhibit on its updated answer to an interrogatory is sufficient becomes known or could have been
list, it must provide an explanation of when: discovered with reasonable diligence.
(4) A deposition may be taken by other than documents that are already in § 221.47 What are the requirements for
telephone conference call, if agreed to the license proceeding record; subpoenas and witness fees?
by the parties or approved in the ALJ’s (2) The production of designated (a) Request for subpoena. (1) Except
order. tangible things for inspection, copying, as provided in paragraph (a)(2) of this
(d) Testimony. Each witness deposed testing, or sampling; or section, any party may file a motion
must be placed under oath or (3) Entry on designated land or other requesting the ALJ to issue a subpoena
affirmation, and the other parties must property for inspection and measuring, to the extent authorized by law for the
be given an opportunity for cross- surveying, photographing, testing, or attendance of a person, the giving of
examination. sampling either the property or any testimony, or the production of
(e) Representation of witness. The designated object or operation on the documents or other relevant evidence
witness being deposed may have property. during discovery or for the hearing.
counsel or another representative (2) A party may subpoena a senior
(b) ALJ order. During or promptly Department employee only if the party
present during the deposition. after the initial prehearing conference,
(f) Recording and transcript. Except as shows:
the ALJ will issue an order under (i) That the employee’s testimony is
provided in paragraph (g) of this § 221.41(b) with respect to any
section, the deposition must be necessary in order to provide
discovery motion requesting the significant, unprivileged information
stenographically recorded and production of documents or tangible
transcribed at the expense of the party that is not available from any other
things or entry on land for inspection, source or by less burdensome means;
that requested the deposition. copying, or other purposes. The order
(1) Any other party may obtain a copy and
will: (ii) That the employee’s attendance
of the transcript at its own expense.
(1) Grant the motion and approve the would not significantly interfere with
(2) Unless waived by the deponent,
use of some or all of the proposed the ability to perform his or her
the deponent will have 3 days after
requests; or government duties.
receiving the transcript to read and sign
it. (2) Deny the motion. (b) Service. (1) A subpoena may be
(3) The person before whom the (c) Compliance with order. Except served by any person who is not a party
deposition was taken must certify the upon agreement of the parties, the party and is 18 years of age or older.
to whom any approved request for (2) Service must be made by hand
transcript following receipt of the
production is directed must permit the delivering a copy of the subpoena to the
signed transcript from the deponent or
approved inspection and other activities person named therein.
expiration of the 3-day review period, (3) The person serving the subpoena
whichever occurs first. within 15 days after issuance of the
order under paragraph (a) of this must:
(g) Video recording. The testimony at (i) Prepare a certificate of service
a deposition may be recorded on section.
setting forth:
videotape, subject to any conditions or § 221.46 What sanctions may the ALJ (A) The date, time, and manner of
restrictions that the parties may agree to impose for failure to comply with service; or
or the ALJ may impose, at the expense discovery? (B) The reason for any failure of
of the party requesting the recording. service; and
(a) Upon motion of a party, the ALJ
(1) The video recording may be in (ii) Swear to or affirm the certificate,
may impose sanctions under paragraph
conjunction with an oral examination attach it to a copy of the subpoena, and
(b) of this section if any party:
by telephone conference held under return it to the party on whose behalf
paragraph (c)(3) of this section. (1) Fails to comply with an order the subpoena was served.
(2) After the deposition has been approving discovery; or (c) Witness fees. (1) A party who
taken, the person recording the (2) Fails to supplement or amend a subpoenas a witness who is not a party
deposition must: response to discovery under § 221.42(a). must pay him or her the same fees and
(i) Provide a copy of the videotape to (b) The ALJ may impose one or more mileage expenses that are paid
any party that requests it, at the of the following sanctions: witnesses in the district courts of the
requesting party’s expense; and (1) Infer that the information, United States.
(ii) Attach to the videotape a testimony, document, or other evidence (2) A witness who is not a party and
statement identifying the case and the withheld would have been adverse to who attends a deposition or hearing at
deponent and certifying the authenticity the party; the request of any party without having
of the video recording. (2) Order that, for the purposes of the been subpoenaed to do so is entitled to
(h) Use of deposition. A deposition hearing, designated facts are the same fees and mileage expenses as
may be used at the hearing as provided established; if he or she had been subpoenaed.
in § 221.53. (3) Order that the party not introduce However, this paragraph does not apply
into evidence, or otherwise rely on to to federal employees who are called as
§ 221.45 What are the requirements for witnesses by a Department.
requests for documents or tangible things support its case, any information,
testimony, document, or other evidence: (d) Motion to quash. (1) A person to
or entry on land?
(i) That the party improperly whom a subpoena is directed may
(a) Motion. Except upon agreement of request by motion that the ALJ quash or
the parties, a party wishing to request withheld; or
modify the subpoena.
the production of designated documents (ii) That the party obtained from (2) The motion must be filed:
or tangible things or entry on designated another party in discovery; (i) Within 5 days after service of the
land must file a motion under (4) Allow another party to use subpoena; or
§ 221.41(c). A request may include any secondary evidence to show what the (ii) At or before the time specified in
of the following that are in the information, testimony, document, or the subpoena for compliance, if that is
possession, custody, or control of other evidence withheld would have less than 5 days after service of the
another party: shown; or subpoena.
(1) The production of designated (5) Take other appropriate action to (3) The ALJ may quash or modify the
documents for inspection and copying, remedy the party’s failure to comply. subpoena if it:
(i) Is unreasonable; cross-examination or redirect, must be (i) The original of the exhibit to the
(ii) Requires evidence during conducted under oath and in the reporter, unless the ALJ permits the
discovery that is not discoverable; or presence of the ALJ, with an substitution of a copy; and
(iii) Requires evidence during a opportunity for all parties to question (ii) A copy of the exhibit to the ALJ.
hearing that is privileged or irrelevant. the witness. (b) Material not offered. If a document
(e) Enforcement. For good cause (c) Telephonic testimony. The ALJ offered as an exhibit contains material
shown, the ALJ may apply to the may by order allow a witness to testify not offered as evidence:
appropriate United States District Court by telephonic conference call. (1) The party offering the exhibit
for the issuance of an order compelling (1) The arrangements for the call must must:
the appearance and testimony of a let each party listen to and speak to the (i) Designate the matter offered as
witness or the production of evidence as witness and each other within the evidence;
set forth in a subpoena that has been hearing of the ALJ. (ii) Segregate and exclude the material
duly issued and served. (2) The ALJ will ensure the full not offered in evidence, to the extent
identification of each speaker so the practicable; and
Hearing, Briefing, and Decision reporter can create a proper record. (iii) Provide copies of the entire
(3) The ALJ may issue a subpoena document to the other parties appearing
§ 221.50 When and where will the hearing
be held? under § 221.47 directing a witness to at the hearing.
testify by telephonic conference call. (2) The ALJ must give the other
(a) Except as provided in paragraph parties an opportunity to inspect the
(b) of this section, the hearing will be § 221.53 How may a party use a deposition entire document and offer in evidence
held at the time and place set at the in the hearing? any other portions of the document.
initial prehearing conference under (a) In general. Subject to the (c) Official notice. (1) At the request
§ 221.40, generally within 15 days after provisions of this section, a party may of any party at the hearing, the ALJ may
the date set for completion of discovery. use in the hearing any part or all of a take official notice of any matter of
(b) On motion by a party or on the deposition taken under § 221.44 against which the courts of the United States
ALJ’s initiative, the ALJ may change the any party who: may take judicial notice, including the
date, time, or place of the hearing if he (1) Was present or represented at the public records of NMFS and any other
or she finds: taking of the deposition; or Department party.
(1) That there is good cause for the (2) Had reasonable notice of the taking (2) The ALJ must give the other
change; and of the deposition. parties appearing at the hearing an
(2) That the change will not unduly (b) Admissibility. (1) No part of a opportunity to show the contrary of an
prejudice the parties and witnesses. deposition will be included in the officially noticed fact.
hearing record, unless received in (3) Any party requesting official
§ 221.51 What are the parties’ rights
during the hearing?
evidence by the ALJ. notice of a fact after the conclusion of
(2) The ALJ will exclude from the hearing must show good cause for
Consistent with the provisions of this evidence any question and response to its failure to request official notice
subpart, each party has the following which an objection: during the hearing.
rights during the hearing, as necessary (i) Was noted at the taking of the (d) Stipulations. (1) The parties may
to assure full and accurate disclosure of deposition; and stipulate to any relevant facts or to the
the facts: (ii) Would have been sustained if the authenticity of any relevant documents.
(a) To present direct and rebuttal witness had been personally present (2) If received in evidence at the
evidence; and testifying at a hearing. hearing, a stipulation is binding on the
(b) To make objections, motions, and (3) If a party offers only part of a stipulating parties.
arguments; and deposition in evidence: (3) A stipulation may be written or
(c) To cross-examine witnesses and to (i) An adverse party may require the made orally at the hearing.
conduct re-direct and re-cross party to introduce any other part that
examination as permitted by the ALJ. ought in fairness to be considered with § 221.55 What evidence is admissible at
the part introduced; and the hearing?
§ 221.52 What are the requirements for (a) General. (1) Subject to the
presenting testimony?
(ii) Any other party may introduce
any other parts. provisions of § 221.42(b), the ALJ may
(a) Written direct testimony. Unless (c) Videotaped deposition. If the admit any written, oral, documentary, or
otherwise ordered by the ALJ, all direct deposition was recorded on videotape demonstrative evidence that is:
hearing testimony must be prepared and and is admitted into evidence, relevant (i) Relevant, reliable, and probative;
submitted in written form. portions will be played during the and
(1) Prepared written testimony must: hearing and transcribed into the record (ii) Not privileged or unduly
(i) Have line numbers inserted in the by the reporter. repetitious or cumulative.
left-hand margin of each page; (2) The ALJ may exclude evidence if
(ii) Be authenticated by an affidavit or § 221.54 What are the requirements for its probative value is substantially
declaration of the witness; exhibits, official notice, and stipulations? outweighed by the risk of undue
(iii) Be filed within 5 days after the (a) General. (1) Except as provided in prejudice, confusion of the issues, or
date set for completion of discovery, paragraphs (b) through (e) of this delay.
unless the ALJ sets a different deadline; section, any material offered in (3) Hearsay evidence is admissible.
and evidence, other than oral testimony, The ALJ may consider the fact that
(iv) Be offered as an exhibit during the must be offered in the form of an evidence is hearsay when determining
hearing. exhibit. its probative value.
(2) Any witness submitting written (2) Each exhibit offered by a party (4) The Federal Rules of Evidence do
testimony must be available for cross- must be marked for identification. not directly apply to the hearing, but
examination at the hearing. (3) Any party who seeks to have an may be used as guidance by the ALJ and
(b) Oral testimony. Oral examination exhibit admitted into evidence must the parties in interpreting and applying
of a witness in a hearing, including on provide: the provisions of this section.
(b) Objections. Any party objecting to of material fact, with supporting any condition or prescription
the admission or exclusion of evidence citations to the hearing record; subsequently included in the license, it
shall concisely state the grounds. A (iii) Arguments in support of the may be subject to judicial review under
ruling on every objection must appear in party’s position; and 16 U.S.C. 825l(b).
the record. (iv) Any other matter required by the
ALJ. Subpart C—Alternatives Process
§ 221.56 What are the requirements for (2) A reply brief, if requested by the
transcription of the hearing? § 221.70 How must documents be filed and
ALJ, must be limited to any issues served under this subpart?
(a) Transcript and reporter’s fees. The identified by the ALJ.
hearing will be transcribed verbatim. (c) Form. (1) An exhibit admitted in (a) Filing. (1) A document under this
(1) The Department of Commerce’s evidence or marked for identification in subpart must be filed using one of the
designated ALJ office will secure the the record may not be reproduced in the methods set forth in § 221.12(b).
services of a reporter and pay the brief. (2) A document is considered filed on
reporter’s fees to provide an original (i) Such an exhibit may be the date it is received. However, any
transcript to the Department of reproduced, within reasonable limits, in document received after 5 p.m. at the
Commerce’s designated ALJ office on an an appendix to the brief. place where the filing is due is
expedited basis. (ii) Any pertinent analysis of an considered filed on the next regular
(2) Each party must pay the reporter exhibit may be included in a brief. business day.
for any copies of the transcript obtained (2) If a brief exceeds 20 pages, it must (b) Service. (1) Any document filed
by that party. contain: under this subpart must be served at the
(b) Transcript Corrections. (1) Any (i) A table of contents and of points same time the document is delivered or
party may file a motion proposing made, with page references; and sent for filing. A complete copy of the
corrections to the transcript. The motion (ii) An alphabetical list of citations to document must be served on each
must be filed within 5 days after receipt legal authority, with page references. license party and FERC, using:
of the transcript, unless the ALJ sets a (i) One of the methods of service in
different deadline. § 221.60 What are the requirements for the § 221.13(c); or
(2) Unless a party files a timely ALJ’s decision? (ii) Regular mail.
motion under paragraph (b)(1) of this (a) Timing. The ALJ must issue a (2) The provisions of § 221.13(d) and
section, the transcript will be presumed decision within the shorter of the (e) regarding acknowledgment and
to be correct and complete, except for following time periods: certificate of service apply to service
obvious typographical errors. (1) 30 days after the close of the under this subpart.
(3) As soon as practicable after the hearing under § 221.58; or
close of the hearing and after (2) 90 days after issuance of the § 221.71 How do I propose an alternative?
consideration of any motions filed referral notice under § 221.25(c), 7 CFR (a) General. To propose an alternative,
under paragraph (b)(1) of this section, 1.625(c), or 43 CFR 45.25(c). you must:
the ALJ will issue an order making any (b) Content. (1) The decision must (1) Be a license party; and
corrections to the transcript that the ALJ contain: (2) File a written proposal with the
finds are warranted. (i) Findings of fact on all disputed Office of Habitat Conservation within 30
issues of material fact; days after the deadline for NMFS to file
§ 221.57 What is the standard of proof? (ii) Conclusions of law necessary to preliminary prescriptions with FERC.
The standard of proof is a make the findings of fact (such as (b) Content. Your proposal must
preponderance of the evidence. rulings on materiality and on the include:
admissibility of evidence); and (1) A description of the alternative, in
§ 221.58 When will the hearing record
(iii) Reasons for the findings and an equivalent level of detail to NMFS’s
close?
conclusions. preliminary prescription;
(a) The hearing record will close (2) An explanation of how the
(2) The ALJ may adopt any of the
when the ALJ closes the hearing, unless alternative will be no less protective
findings of fact proposed by one or more
he or she directs otherwise. than the fishway prescribed by NMFS;
of the parties.
(b) Evidence may not be added after (3) An explanation of how the
(3) The decision will not contain
the hearing record is closed, but the alternative, as compared to the
conclusions as to whether any
transcript may be corrected under preliminary prescription, will:
preliminary condition or prescription
§ 221.56(b). (i) Cost significantly less to
should be adopted, modified, or
§ 221.59 What are the requirements for rejected, or whether any proposed implement; or
post-hearing briefs? alternative should be adopted or (ii) Result in improved operation of
(a) General. (1) Each party may file a rejected. the project works for electricity
post-hearing brief within 10 days after (c) Service. Promptly after issuing his production;
the close of the hearing, unless the ALJ or her decision, the ALJ must: (4) An explanation of how the
sets a different deadline. (1) Serve the decision on each party alternative will affect:
(2) A party may file a reply brief only to the hearing; and (i) Energy supply, distribution, cost,
if requested by the ALJ. The deadline for (2) Forward a copy of the decision to and use;
filing a reply brief, if any, will be set by FERC, along with the complete hearing (ii) Flood control;
the ALJ. record, for inclusion in the license (iii) Navigation;
(3) The ALJ may limit the length of proceeding record. (iv) Water supply;
the briefs to be filed under this section. (d) Finality. The ALJ’s decision under (v) Air quality; and
(b) Content. (1) An initial brief must this section will be final, with respect to (vi) Other aspects of environmental
include: the disputed issues of material fact, for quality; and
(i) A concise statement of the case; NMFS and any other Department (5) Specific citations to any scientific
(ii) A separate section containing involved in the hearing. To the extent studies, literature, and other
proposed findings regarding the issues the ALJ’s decision forms the basis for documented information relied on to
support your proposal, including any (2) Any comments received on (d) The written statement under
assumptions you are making (e.g., NMFS’s preliminary prescription; paragraph (c)(1) of this section must
regarding the cost of energy or the rate (3) Any ALJ decision on disputed demonstrate that NMFS gave equal
of inflation). If any such document is issues of material fact issued consideration to the effects of the
not already in the license proceeding under§ 221.60 with respect to the prescription adopted and any
record, you must provide a copy with preliminary prescription; alternative prescription not adopted on:
the proposal. (4) Comments received on any draft or (1) Energy supply, distribution, cost,
§ 221.72 What will NMFS do with a
final NEPA documents; and and use;
proposed alternative? (5) The license party’s proposal under (2) Flood control;
If any license party proposes an § 221.71.
(3) Navigation;
alternative to a preliminary prescription (b) NMFS must adopt a proposed
alternative if NMFS determines, based (4) Water supply;
under § 221.71(a)(1), NMFS must do the
on substantial evidence provided by any (5) Air quality; and
following within 60 days after the
deadline for filing comments to FERC’s license party or otherwise available to (6) Preservation of other aspects of
NEPA document under 18 CFR 5.25(c): NMFS, that the alternative will be no environmental quality.
(a) Analyze the alternative under less protective than NMFS’s preliminary
§ 221.74 Has OMB approved the
§ 221.73; and prescription and will, as compared to
information collection provisions of this
(b) File with FERC: NMFS’s preliminary prescription: subpart?
(1) Any prescription that NMFS (1) Cost significantly less to
adopts as its modified prescription; and implement; or Yes. This rule contains provisions
(2) Its analysis of the modified (2) Result in improved operation of that would collect information from the
prescription and any proposed the project works for electricity public. It therefore requires approval by
alternatives under § 221.73(c). production. the Office of Management and Budget
(c) When NMFS files with FERC the (OMB) under the Paperwork Reduction
§ 221.73 How will NMFS analyze a Act of 1995, 44 U.S.C. 3501 et seq.
proposed alternative and formulate its prescription that NMFS adopts as its
modified prescription under (PRA). According to the PRA, a Federal
modified prescription?
§§ 221.72(b), it must also file: agency may not conduct or sponsor, and
(a) In deciding whether to adopt a a person is not required to respond to,
proposed alternative, NMFS must (1) A written statement explaining:
(i) The basis for the adopted a collection of information unless it
consider evidence and supporting displays a currently valid OMB control
material provided by any license party prescription; and
number that indicates OMB approval.
or otherwise available to NMFS (ii) If NMFS is not adopting any
OMB has reviewed the information
including: alternative, its reasons for not doing so;
collection in this rule and approved it
(1) Any evidence on the and
under OMB control number 1094–0001.
implementation costs or operational (2) Any study, data, and other factual
impacts for electricity production of the information relied on that is not already [FR Doc. 05–22677 Filed 11–16–05; 8:45 am]
proposed alternative; part of the licensing proceeding record. BILLING CODE 3410–11–P; 4310–79–P; 3510–22–P

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November 17, 2005

50 CFR Part 221

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