[Federal Register Volume 70, Number 221 (Thursday, November 17, 2005)]
[Rules and Regulations]
[Pages 69804-69851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22677]



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Part II





Department of Agriculture





7 CFR Part 1



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Department of the Interior

43 CFR Part 45



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Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 221



Resource Agency Procedures for Conditions and Prescriptions in 
Hydropower Licenses; Interim Final Rule

  Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / 
Rules and Regulations  

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DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 45

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 221

[Docket No. 051103290-5290-01; I.D. 101105D]
RINs 0596-AC42; 1094-AA51; 0648-AU01


Resource Agency Procedures for Conditions and Prescriptions in 
Hydropower Licenses

AGENCIES: Office of the Secretary, Agriculture; Office of the 
Secretary, Interior; National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, Commerce.

ACTION: Interim final rules with request for comments.

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SUMMARY: As required by the Energy Policy Act of 2005 (EPAct), the 
Departments of Agriculture, the Interior, and Commerce are jointly 
establishing procedures for a new category of expedited trial-type 
hearings. The hearings will resolve disputed issues of material fact 
with respect to conditions or prescriptions that one or more of the 
Departments develop for inclusion in a hydropower license issued by the 
Federal Energy Regulatory Commission (FERC) under the Federal Power 
Act. The three Departments are also establishing procedures for the 
consideration of alternative conditions and prescriptions submitted by 
any party to a license proceeding, as provided in EPAct.
    Three substantively identical rules are being promulgated--one for 
each agency--with a common preamble. The rules are effective 
immediately, so that interested parties may avail themselves of the new 
hearing right and alternatives process created by the EPAct, but the 
Departments are requesting comments on ways the rules can be improved.

DATES: These rules are effective on November 17, 2005.
    Comments: You should submit your comments by January 17, 2006.

ADDRESSES: You may submit comments, identified by any of the Regulation 
Identifier Numbers (RINs) shown above (0596-AC42, 1094-AA51, or 0648-
AU01), by one of the methods listed below. Comments submitted to any 
one of the three Departments will be shared with the others, so it is 
not necessary to submit comments to all three Departments.
    1. Federal rulemaking portal: http://www.regulations.gov. Follow 
the instructions for submitting comments on-line.
    2. E-mail to any one of the following:
    a. Department of Agriculture: [email protected]; include ``RIN 
0596-AC42'' in the subject line of the message;
    b. Department of the Interior: [email protected]; 
include ``RIN 1094-AA51'' in the subject line of the message; or
    c. Department of Commerce: [email protected]; include ``RIN 0648-
AU01'' in the subject line of the message.
    3. Facsimile to any of the following:
    a. Department of Agriculture: 202-205-1604;
    b. Department of the Interior: 202-208-4867; or
    c. Department of Commerce: 301-713-4305.
    4. Mail or hand delivery to any of the following:
    a. Deputy Chief, National Forest Systems, c/o WO Lands Staff, 
Department of Agriculture, Mail stop 1124, 1400 Independence Avenue 
SW., Washington, DC 20250-1124;
    b. Office of Policy Analysis, Office of the Secretary, Mail Stop 
4426-MIB, Department of the Interior, 1849 C Street, NW., Washington, 
DC 20240; or
    c. Chief, Habitat Protection Division, Office of Habitat 
Conservation, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Greg Smith, Director of Lands, Forest 
Service, U.S. Department of Agriculture, 202-205-1769; or Larry Finfer, 
Office of Policy Analysis, Department of the Interior, 202-208-5978; or 
Melanie Harris, Office of Habitat Conservation, National Marine 
Fisheries Service, 301-713-4300. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Public Comments

    If you wish to comment on these interim final rules, you may submit 
your comments by any of the methods listed in the ADDRESSES section 
above. We will consider all comments received by the deadline stated in 
the DATES section above. Based on the comments received and the initial 
results of implementation, we will consider promulgation of revised 
final rule within 18 months of the effective date of this rule.
    Please make your comments as specific as possible and explain the 
reason for any changes you recommend. Where possible, your comments 
should reference the specific section or paragraph of the rules that 
you are addressing.
    We will make comments available for public review during regular 
business hours. To review the comments, you may contact any of the 
individuals listed in the FOR FURTHER INFORMATION CONTACT section 
above. Individual respondents may request that we withhold their home 
address from the rulemaking record. We will honor the request to the 
extent allowable by law.
    In some circumstances we may withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.

II. Background

    A. Energy Policy Act of 2005 (EPAct). The rules that Agriculture, 
Interior, and Commerce are publishing today implement section 241 of 
EPAct, Public Law 109-58, which the President signed into law on August 
8, 2005. EPAct, which passed by wide margins in both Houses, was the 
product of years of Congressional hearings, amendments, and debates. 
The issues underlying section 241 were extensively considered by the 
109th Congress and several previous Congresses.
    Section 241 amends sections 4(e) and 18 of the Federal Power Act 
(FPA), 16 U.S.C. 797(e), 811, to provide that any party to a license 
proceeding is entitled to a determination on the record, after 
opportunity for an agency trial-type hearing of no more than 90 days, 
of any disputed issues of material fact with respect to any agency's 
mandatory conditions or prescriptions. Section 241 further mandates 
that, within 90 days of the date of enactment of EPAct, the three 
Departments establish jointly, by rule and in consultation with FERC,

[[Page 69805]]

procedures for the expedited trial-type hearing, including the 
opportunity to undertake discovery and cross-examine witnesses.
    Section 241 of EPAct also adds a new section 33 to the FPA that 
allows the license applicant or any other party to the license 
proceeding to propose an alternative condition or prescription. The 
Secretary of the agency involved must accept the proposed alternative 
if the Secretary determines, based on substantial evidence provided by 
a party to the license proceeding or otherwise available to the 
Secretary, (a) that the alternative condition provides for the adequate 
protection and utilization of the reservation, or that the alternative 
prescription will be no less protective than the fishway initially 
proposed by the Secretary, and (b) that the alternative will either 
cost significantly less to implement or result in improved operation of 
the project works for electricity production.
    New FPA section 33 further provides that, following the 
consideration of alternatives, the Secretary must file with FERC a 
statement explaining his or her reasons for accepting or rejecting any 
alternatives and the basis for any modified conditions or prescriptions 
to be included in the license. If FERC finds that the modified 
conditions or prescriptions would be inconsistent with the purposes of 
the FPA or other applicable law, it may refer the matter to its Dispute 
Resolution Service (DRS). The DRS is to consult with the Secretary and 
FERC and issue a non-binding advisory within 90 days, following which 
the Secretary is to make a final written determination on the 
conditions or prescriptions.
    This preamble explains how the Departments will comply with EPAct's 
requirements for trial-type hearings and for the receipt and analysis 
of alternative conditions and prescriptions. As explained further 
below, these new rights are being made available immediately to any 
license applicant or other party to a license proceeding for which the 
license has not already been issued as of the effective date of these 
rules.
    B. FERC's licensing process for hydroelectric power projects. On 
August 25, 2003, FERC published a final rule amending its regulations 
at 18 CFR part 5 for licensing hydroelectric power projects to 
establish a new licensing process known as the integrated licensing 
process (ILP). 68 FR 51070. The amendments were the culmination of 
efforts by FERC, other Federal and State agencies, Indian Tribes, 
licensees, and members of the public to develop a more efficient and 
timely licensing process, while ensuring that licenses provide 
appropriate resource protections required by the FPA and other 
applicable laws. 68 FR 51070. Two other processes, the traditional 
licensing process (TLP) and the alternative licensing process (ALP), 
are also available; but the ILP is the default process and FERC's 
permission must be obtained to use the TLP or ALP. Id.
    The FPA's resource protection provisions include sections 4(e), 
10(a)(1), 10(j), and 18, 16 U.S.C. 797(e), 803(a)(1), 803(j), and 811. 
Section 10(a)(1) provides that hydropower licenses must be best adapted 
to a comprehensive plan for improving or developing the affected 
waterways for all beneficial public uses, and must include provisions 
for the protection of fish and wildlife and other beneficial public 
uses. Section 10(j) provides that Interior and Commerce may make 
recommendations to FERC on conditions for the protection, mitigation, 
and enhancement of fish and wildlife affected by the project. FERC must 
include those conditions in the license unless it finds that they would 
be inconsistent with the purposes and requirements of the FPA or other 
applicable law, and that conditions selected by FERC will adequately 
protect, mitigate damages to, and enhance fish and wildlife.
    Under FPA section 4(e), licenses for projects located within 
Federal reservations must include conditions mandated by the Department 
that manages the reservation, which in most cases is Agriculture or 
Interior. Section 4(e) also requires FERC to give environmental values, 
including fish and wildlife and recreation, equal consideration with 
hydropower development. Under section 18, licenses must also include 
fishways if they are prescribed by Interior or Commerce. As provided in 
section 1701(b) of the Energy Policy Act of 1992, Public Law 102-486, 
``the items which may constitute a `fishway' under section 18 for the 
safe and timely upstream and downstream passage of fish shall be 
limited to physical structures, facilities, or devices necessary to 
maintain all life stages of such fish, and project operations and 
measures related to such structures, facilities, or devices which are 
necessary to ensure the effectiveness of such structures, facilities, 
or devices for such fish.''
    The ILP is a multi-year process--involving more than 20 sequential 
steps, most with associated deadlines--that constitutes a logical 
progression of information development, exchange, and analysis 
involving FERC, other Federal and State agencies, Indian Tribes, the 
license applicant, and members of the public. The ILP brings together 
activities that previously were conducted over a much longer time 
frame, including consultation, studies, dispute resolution, scoping and 
document preparation under the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. (NEPA), and water quality certification.
    There are two main phases to the process: (1) A pre-application 
phase involving activities before the filing with FERC of a license 
application, and (2) a post-application phase. The process begins with 
the applicant's filing with FERC a notice of intent (NOI) to file an 
application for an original, new, or subsequent license. 18 CFR 5.5. 
The NOI must be filed 5-5\1/2\ years before the existing license 
expires. 18 CFR 5.5(d). Along with the NOI, the applicant must file a 
pre-application document providing available information on 
engineering, economics, and the existing environment, including data or 
studies relevant to the environment and known and potential impacts of 
the proposed project on various resources. 18 CFR 5.6.
    Other steps in the pre-application phase include FERC's issuance of 
a scoping document, holding of a scoping meeting, and issuance of a 
process plan and schedule. 18 CFR 5.8. During these steps, resource 
issues and the need for information and studies are identified, and the 
scoping of issues under NEPA is initiated. 18 CFR 5.8.
    Eventually, the applicant files a proposed study plan, the plan is 
assessed through meetings and comments, and the applicant files a 
revised study plan for FERC's approval. 18 CFR 5.11-.13. After FERC's 
approval, the plan may be subject to a study dispute resolution process 
if disputes arise. 18 CFR 5.14. Approximately 1 year elapses from 
issuance of the NOI to final approval of a study plan.
    Studies are then conducted, reviewed, and modified if necessary. 18 
CFR 5.13-.15. Studies may extend for more than one season. After 
completion of the studies, the applicant files a preliminary licensing 
proposal, which is subject to comment and additional information 
requests. 18 CFR 5.16.
    At least 2 years before the existing license expires, the 
application must be filed with FERC. 18 CFR 5.17(a). Within 14 days of 
that filing, FERC must issue public notice of the filing and a 
preliminary schedule for expeditious processing of the application, 
including dates for the following steps: Filing of preliminary 
conditions and prescriptions by the Departments; issuance of an 
environmental

[[Page 69806]]

assessment (EA), a draft EA, or a draft environmental impact statement 
(EIS); filing of comments on any draft EIS or EA; filing of mandatory 
conditions or prescriptions by the agencies in response to any draft 
EIS or EA; and issuance of any final EIS or EA. 18 CFR 5.19(a).
    When FERC determines that the application meets various 
requirements, that the approved studies have been completed, that any 
deficiencies in the application have been cured, and that no other 
additional information is needed, it will issue a notice of acceptance 
and readiness for environmental analysis (REA). 18 CFR 5.22. That 
notice must include a request for preliminary conditions and 
prescriptions from the Departments. 18 CFR 5.22.
    Comments, protests, recommendations, and preliminary conditions and 
prescriptions must be filed with FERC within 60 days after the REA. 18 
CFR 5.23(a). All reply comments must be filed within 105 days of the 
REA. 18 CFR 5.23(a). If FERC determines that an EIS or a draft and 
final EA will be prepared, FERC will issue a draft EIS or EA no later 
than 180 days from the deadline for responses to the REA. 18 CFR 
5.25(a). The draft EIS or EA must include, for comment, any preliminary 
conditions or prescriptions. 18 CFR 5.25(b).
    Comments to the draft EIS or EA must be filed within 30 or 60 days 
after issuance of the draft, as specified by FERC. 18 CFR 5.25(c). 
Modified mandatory conditions and prescriptions must be filed within 60 
days after the deadline for filing comments, and FERC will issue a 
final EIS or EA within 90 days after the deadline for filing the 
modified mandatory conditions and prescriptions. 18 CFR 5.25(d)-(e). 
FERC will then issue the license order including any mandatory 
conditions and prescriptions. 18 CFR 5.29(h).
    C. Authority for mandatory conditions and prescriptions under the 
Federal Power Act. Provisions of the FPA, 16 U.S.C. 791-823c, vest in 
the Departments the authority to provide conditions and/or 
prescriptions to be included in licenses issued by FERC for 
hydroelectric generating facilities (see also 18 CFR parts 4, 5, and 
16).
    Under section 18 of the FPA, 16 U.S.C. 811, Interior, acting 
through the Fish and Wildlife Service (FWS), and Commerce, acting 
through the National Marine Fisheries Service (NMFS) within the 
National Oceanic and Atmospheric Administration (NOAA), may prescribe 
fishways to provide for the safe, timely, and effective passage of 
fish.
    Under section 4(e) of the FPA, 16 U.S.C. 797(e), Agriculture and 
Interior may establish conditions necessary for the adequate protection 
and utilization of reservations. The term ``reservations,'' as used in 
the FPA, includes certain lands and facilities under the jurisdiction 
of the U.S. Forest Service within Agriculture, and various components 
of Interior (namely, FWS, the National Park Service, the Bureau of Land 
Management, the Bureau of Reclamation, or the Bureau of Indian 
Affairs).
    Through these statutory provisions, the FPA authorizes the 
Departments to set conditions or prescriptions for the protection of 
public and Tribal resources that may be affected when navigable 
waterways or Federal reservations are used for hydroelectric projects 
licensed by FERC.
    The Departments' conditions and prescriptions must be incorporated 
by FERC into any hydropower license it issues under the FPA. This 
authority has been recognized and upheld by the Federal courts, 
including the Supreme Court. See Escondido Mutual Water Co. v. La Jolla 
Band of Mission Indians, 466 U.S. 765 (1984); American Rivers v. FERC, 
201 F.3d 1186 (9th Cir. 1999); Bangor Hydro-Electric Co. v. FERC, 78 
F.3d 659 (D.C. Cir. 1996). After a license has been issued, the 
license, including the Departments' conditions and prescriptions, is 
subject to rehearing before FERC and subsequent judicial review under 
the FPA's appeal procedures. The FPA gives the Federal appeals courts 
exclusive jurisdiction over such appeals. 16 U.S.C. 825l(b).
    D. Mandatory Conditions Review Process (MCRP). On January 19, 2001, 
Interior and Commerce established, through an interagency policy, the 
MCRP. The MCRP provided license applicants and interested parties an 
opportunity to review and comment on the two Departments' preliminary 
conditions and prescriptions for specific hydropower licenses. In 
addition, commenters were encouraged to provide additional information 
regarding the Departments' conditions and prescriptions. The MCRP was 
crafted to work within FERC's deadlines and its process under NEPA, 
while affording interested parties an opportunity to comment on the 
record concerning the two Departments' conditions and prescriptions.
    Before finalizing the MCRP, Interior and Commerce provided a public 
comment period on a draft MCRP. 65 FR 77889 (Dec. 13, 2000). Many 
commenters proposed that the Departments provide, in addition to review 
and comment, an opportunity for an evidentiary hearing or an 
administrative appeal. The Departments decided not to adopt such 
procedures at that time.
    After 3 years of experience using the MCRP, each of the Departments 
issued proposed rules to codify the MCRP with clarifications. 69 FR 
54602 (Sept. 9, 2004) (Interior); 69 FR 54615 (Sept. 9, 2004) 
(Commerce). Interior also proposed to add a new administrative appeals 
process to follow review and comment under the MCRP. Interior again 
considered but decided not to adopt an evidentiary hearing process, out 
of concern that there was insufficient time in the FERC licensing 
process to accommodate it. 69 FR 54603.
    Neither Department has yet issued a final rule codifying the MCRP. 
Given the new procedures mandated by EPAct, which effectively subsume 
or supersede the MCRP, there no longer appears to be a need for such a 
rule or to continue implementing the MCRP.
    E. How the trial-type hearing and alternatives process will fit 
into the FERC licensing timeframe. As noted in the SUMMARY section 
above, to comply with EPAct's mandate, the Departments are promulgating 
three substantively identical rules, one for each Department, with this 
common preamble. Like the now superseded MCRP, the new hearing process 
established by these rules has been carefully crafted to work within 
FERC's time frame and NEPA process, while affording interested parties 
an opportunity to present evidence on disputed issues of material fact 
with respect to the Departments' conditions and prescriptions.
    Key steps in FERC's time frame, as related to our hearings and 
alternatives processes, are as follows. This assumes that, in a 
contested case, FERC will issue either a draft EA or a draft EIS under 
18 CFR 5.25, rather than an EA not preceded by a draft under 18 CFR 
5.24.
    1. FERC issues its REA notice.
    2. Responses to the REA, including the Departments' preliminary 
conditions and prescriptions, are due 60 days later.
    3. FERC issues its draft NEPA document (EA or EIS) within 180 days 
after the deadline for responses to the REA.
    4. Comments on the draft NEPA document are due 30-60 days later.
    5. The Departments' modified conditions and prescriptions are due 
60 days after the deadline for comments on the draft NEPA document.
    6. FERC issues a final NEPA document within 90 days after the

[[Page 69807]]

deadline for the modified conditions and prescriptions.
    7. FERC issues the license order with any conditions and 
prescriptions.
    Under these rules on trial-type hearings and alternative conditions 
and prescriptions, the following actions will occur within the steps 
listed above for FERC's licensing process. The hearing and alternatives 
processes are separate and distinct, but they have a few common points 
of reference, as noted below.
    1. FERC issues its REA notice, starting the 60-day period for 
responses.
    2. By the end of the 60-day period, the Departments will submit any 
preliminary conditions and prescriptions they have developed.
    2a. The parties will have 30 days to request a hearing on any 
disputed issues of material fact. The parties will have the same 30 
days to submit alternative conditions and prescriptions.
    2b. The parties will have 15 days after hearing requests are due to 
file a notice of intervention and response with regard to any other 
party's hearing request.
    2c. The Departments will have 30 days after responses are due to 
determine whether to stipulate to some or all of the facts alleged to 
be in dispute and to file an answer to the hearing request. During the 
same period, the Departments will consider whether any proposed 
alternative condition or prescription could preclude the need for a 
hearing.
    2d. If there is still a need for a hearing, the Departments will 
refer the case to an administrative law judge (ALJ).
    2e. Within 90 days, the ALJ will conduct the hearing process on any 
disputed issues of material fact. The process will include an initial 
prehearing conference, discovery, an evidentiary hearing for the 
parties to present their evidence and cross-examine witnesses, the 
submission of post-hearing briefs, and issuance of a final decision.
    3. FERC will issue its draft NEPA document, which will include for 
comment the Departments' preliminary conditions and prescriptions and 
any alternatives proposed by the parties.
    4. The parties and the Departments will submit their comments on 
the draft NEPA document, using the facts as found by the ALJ.
    4a. The Departments will consider and analyze comments received on 
their preliminary conditions and prescriptions, the ALJ's decision on 
disputed issues of material fact, comments received on the draft NEPA 
document, and any alternative conditions and prescriptions.
    5. The Departments will issue their modified conditions and 
prescriptions and file their analysis of the alternatives within 60 
days of the close of the comment period on FERC's draft NEPA document.
    5a. FERC will evaluate the modified conditions and prescriptions in 
light of the purposes of the FPA and other applicable law. If it finds 
they are inconsistent, FERC may refer the matter to the DRS.
    5b. The DRS will consult with the Departments and FERC and issue a 
non-binding advisory within 90 days.
    5c. The Departments will consider the DRS advisory and issue a 
final written determination on the conditions and prescriptions.
    6. FERC will issue its final NEPA document.
    7. FERC will issue the license order with any mandatory conditions 
and prescriptions.
    This approach has several benefits for the parties, FERC, and the 
Departments. It provides for the submission of alternative conditions 
and prescriptions in time for FERC to include them in its draft NEPA 
document and for the Departments to consider them along with any 
hearing requests and responses from other parties. This will enable 
each Department to consider at an early stage whether it wants to 
accept a proposed alternative and possibly avoid the need for a hearing 
under these rules. Having the hearing requests, responses, and 
alternatives together will also assist the Departments in deciding 
whether to stipulate to some facts alleged to be in dispute or 
otherwise try to narrow the issues to be heard.
    Moreover, since the hearing process will be completed by the time 
FERC issues its draft NEPA document, the parties will have the benefit 
of the ALJ's decision in preparing their comments on that document. The 
Departments will likewise have the ALJ's decision to use in analyzing 
the alternatives and developing their modified conditions and 
prescriptions within FERC's time frame.
    In many cases, this sequence and timing will need to be adjusted 
with respect to any license application that is currently pending 
before FERC, if the license applicant or another party wants a trial-
type hearing or wants to submit an alternative condition or 
prescription. A number of pending applications are already past the 
early steps listed above. In such cases, the Departments will work with 
FERC and the parties to fit the hearing and alternatives processes into 
the remaining steps.
    F. Overview of the hearing process. As noted previously, section 
241 of EPAct provides that ``[t]he license applicant and any party to 
the proceeding shall be entitled to a determination on the record, 
after opportunity for an agency trial-type hearing of no more than 90 
days, on any disputed issues of material fact'' with respect to any 
Department's conditions or prescriptions. ``All disputed issues of 
material fact raised by any party shall be determined in a single 
trial-type hearing to be conducted by the relevant resource agency * * 
*.'' The three Departments are required to ``establish jointly, by 
rule, the procedures for such expedited trial-type hearing, including 
the opportunity to undertake discovery and cross-examine witnesses * * 
*.''
    In the Departments' experience, full administrative adjudications 
involving prehearing conferences, discovery, motions, one or more 
evidentiary hearings, briefing, and a decision often take over a year 
to complete, especially if the case involves multiple parties and 
complex technical issues. Shortening this process to 90 days will be a 
significant challenge for the parties and the ALJ, and will require 
adherence to fairly stringent procedural limits and deadlines.
    Under these rules, the 90-day period for the hearing process will 
commence when the case is referred to an ALJ for a hearing, and will 
end when the ALJ issues his or her decision. During that period, at 
least one prehearing conference will be held; discovery will be 
conducted as approved by the ALJ or agreed to by the parties; evidence, 
including direct written testimony and oral cross-examination, will be 
presented at a hearing; post-hearing briefs will be filed; and a 
decision will be issued by the ALJ.
    As described in section II.E. above, before the case is referred 
for a hearing, each Department will have filed with FERC its 
preliminary conditions or prescriptions, with supporting rationale and 
an index to the administrative record of supporting documents. Any 
party to the FERC license proceeding may then file with the appropriate 
Department a request for hearing, identifying the material facts that 
are disputed regarding the preliminary conditions or prescriptions. 
Other parties to the license proceeding may then submit responses to 
any hearing request and intervene in the hearing process.
    The Department involved will review the parties' submissions to 
determine whether to stipulate to any facts as stated by the parties, 
object that any issue raised by a party either is not

[[Page 69808]]

factual (i.e., is a legal conclusion or a policy determination) or is 
not material, or agree that the issues raised are factual, material, 
and disputed. Unless all disputed issues have been resolved, the 
Department will refer the case to an ALJ for a hearing.
    If two or more Departments file preliminary conditions and/or 
prescriptions and receive hearing requests, they will consult with each 
other to determine whether the requests should be consolidated for 
hearing. In accordance with EPAct, a single hearing will be held for 
all conditions issued by one Department (section 241(a)) or for all 
prescriptions issued by one Department (section 241(b)). While EPAct 
does not mandate the consolidation of hearing requests in other 
circumstances, the Departments expect to consolidate the cases if there 
are common issues of fact. In that event, one ALJ would be designated 
to conduct the consolidated hearing on behalf of the Departments 
involved.
    G. Overview of the alternatives process. While the specific 
alternatives process added by section 241 of EPAct is new, for years 
the Departments have received and considered alternatives from license 
parties on an informal basis, and have revised preliminary conditions 
and prescriptions as new information was received. Under the new 
process, whether or not a license party requests a hearing, it may 
submit one or more conditions or prescriptions for consideration by the 
appropriate Department as an alternative to any preliminary conditions 
or prescription that the Department has filed. The alternatives are due 
30 days after the deadline for the Departments to file their 
preliminary conditions and prescriptions, which will allow FERC to 
include the alternatives in its draft NEPA document.
    If any party has requested a hearing on disputed issues of material 
fact with respect to a preliminary condition or prescription, the ALJ's 
decision will generally be issued shortly before FERC issues its draft 
NEPA document. The Departments will use the comment period on the draft 
NEPA document to review their preliminary conditions and prescriptions 
in light of the findings of fact from the ALJ.
    Within 60 days of the end of the comment period on FERC's draft 
NEPA document, each Department will formally analyze the alternative 
conditions and/or prescriptions it has received, together with the 
ALJ's findings of fact, comments received on the preliminary conditions 
and prescriptions, and comments received on FERC's draft NEPA document. 
The Department will then issue its modified conditions or prescriptions 
and file the written statement required by FPA section 33(a)(4) or 
(b)(4).
    The written statement must explain the basis for the modified 
conditions or prescriptions and, if the Department did not accept an 
alternative condition or prescription, its reasons for not doing so. As 
provided in section 33, the statement must demonstrate that the 
Department gave equal consideration to the effects of its modified 
conditions or prescriptions and any alternatives not accepted ``on 
energy supply, distribution, cost, and use; flood control; navigation; 
water supply; and air quality (in addition to the preservation of other 
aspects of environmental quality) * * *.''
    The requirement for ``equal consideration'' has been construed 
under FPA section 4(e) to mean that each factor must be considered 
equally with the others, i.e., given `` `full and genuine consideration 
* * *' '' State of California v. FERC, 966 F.2d 1541, 1550 (9th Cir. 
1992), quoting from legislative history at 123 Cong. Rec. S. 15107. 
``Equal consideration'' is not the same as ``equal treatment''; rather 
the agency ``must balance the public interest in all of its stated 
dimensions, give equal consideration to conflicting interests, and 
reach a reasoned factual decision.'' Id.; accord Conservation Law 
Found. v. FERC, 216 F.3d 41 (D.C. Cir. 2000); see also U.S. Dept. of 
Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992).

III. Section-by-Section Analysis

    There are three different versions of the regulations that follow 
for the trial-type hearing and alternatives process, one version each 
for Agriculture, Interior, and Commerce. The structure and content of 
the regulations are the same, but there are minor variations to account 
for differences in the names of the Departments and their 
organizational components. The three versions also vary somewhat in 
their references to conditions and prescriptions, since Agriculture 
does not develop prescriptions under FPA section 18 and Commerce does 
not develop conditions under FPA section 4(e), while Interior may do 
either or both.
    For each section discussed below, the CFR title, section number, 
and heading for each Department are shown, 7 CFR for Agriculture, 43 
CFR for Interior, and 50 CFR for Commerce.

General Provisions

    7 CFR 1.601 What is the purpose of this subpart, and to what 
license proceedings does it apply?
    43 CFR 45.1 What is the purpose of this part, and to what license 
proceedings does it apply?
    50 CFR 221.1 What is the purpose of this part, and to what license 
proceedings does it apply?
    Paragraph (a) of this section explains the basic purpose of the 
trial-type hearing regulations. It further explains that, if two or 
more Departments consolidate hearing requests involving the same 
license application, the regulations of one Department may govern the 
steps preceding the referral of the case to an ALJ, while the 
(substantively identical) regulations of another Department may govern 
the steps following the referral of the case to an ALJ. Paragraph (b) 
explains the basic purpose of the alternative process regulations.
    Paragraph (c) covers situations in which a Department does not 
exercise its authority to submit conditions or prescriptions for 
inclusion in the license, but reserves the authority to do so during 
the term of the license, e.g., if conditions change or the Department 
obtains additional information. If the Department notifies FERC that it 
is reserving its authority, the hearing and alternatives processes 
under these rules will be available to the license parties if and when 
the Department subsequently exercises its reserved authority. The 
license parties cannot request a hearing regarding the reservation of 
authority itself, or submit alternatives to such reservation.
    Paragraph (d) provides that these regulations apply to any 
hydropower license proceeding for which the license has not been issued 
as of the effective date of these rules and for which the Department 
involved has developed or develops one or more preliminary conditions, 
conditions, preliminary prescriptions, or prescriptions. A cross 
reference to 7 CFR 1.604, 43 CFR 45.4, or 50 CFR 221.4 is included for 
license applications that are pending as of the effective date of these 
rules.
    7 CFR 1.602 What terms are used in this subpart?
    43 CFR 45.2 What terms are used in this part?
    50 CFR 221.2 What terms are used in this part?
    This section defines the meaning of various terms used in the 
regulations. Most of the definitions provided are self-explanatory, but 
a few deserve further discussion.
    ``Intervention'' is defined as a process by which a person who did 
not request a hearing under 7 CFR 1.621, 43 CFR 45.21, or 50 CFR 221.21 
can participate as a party in the hearing by filing a notice of 
intervention and response

[[Page 69809]]

under 7 CFR 1.622, 43 CFR 45.22, or 50 CFR 221.22. A person who has 
intervened in the license proceeding before FERC is not automatically 
an intervenor in the hearing process under these regulations; but 
anyone who has intervened in the license proceeding is eligible to 
intervene in the hearing process.
    ``Material fact'' is defined as ``a fact that, if proved, may 
affect a Department's decision whether to affirm, modify, or withdraw 
any preliminary condition or prescription.'' To use a fishway 
prescription as an example, issues of material fact could include but 
are not limited to issues such as whether the river has historically 
been a cold or warm water fishery or whether fish have historically 
been found above or below the dam. Such issues, if disputed and 
material to the prescription involved in a given case, appear well 
suited to the trial-type hearing mandated by EPAct. On the other hand, 
legal or policy issues would not qualify as issues of material fact.
    ``Party'' is defined to mean a party to the hearing process under 
these regulations, as distinguished from a ``license party,'' which is 
a party to the FERC license proceeding. A ``party'' includes a license 
party that requests a hearing under section 7 CFR 1.621, 43 CFR 45.21, 
or 50 CFR 221.21, a license party that files a notice of intervention 
and response under section 7 CFR 1.622, 43 CFR 45.22, or 50 CFR 221.22, 
and the Departmental component that has filed a preliminary condition 
or prescription in the license proceeding. If two or more hearing 
requests are consolidated under 7 CFR 1.623, 43 CFR 45.23, and 50 CFR 
221.23, the term ``party'' will also include any other Departmental 
component involved in the hearing.
    7 CFR 1.603 How are time periods computed?
    43 CFR 45.3 How are time periods computed?
    50 CFR 221.3 How are time periods computed?
    Paragraph (a) of this section describes the method for computing 
time periods under the regulations. Paragraph (b) covers requests for 
extensions of time. It provides that no extension of time can be 
granted to file a request for a hearing under section 7 CFR 1.621, 43 
CFR 45.21, or 50 CFR 221.21; a notice of intervention and response 
under section 7 CFR 1.622, 43 CFR 45.22, or 50 CFR 221.22; an answer 
under section 7 CFR 1.624, 43 CFR 45.24, or 50 CFR 221.24; or any 
document under the alternatives process. This limitation is necessary 
to ensure timely completion of the hearing and alternatives processes 
and because, as a practical matter, there will be no ALJ available who 
could rule on a motion for extension of time for these documents. 
Extensions of time to file other documents under the hearing process 
may be granted by the ALJ, but only for good cause.
    7 CFR 1.604 What deadlines apply to pending applications?
    43 CFR 45.4 What deadlines apply to pending applications?
    50 CFR 221.4 What deadlines apply to pending applications?
    This section contains special applicability provisions for cases in 
which preliminary conditions, conditions, preliminary prescriptions, or 
prescriptions have already been filed as of the effective date of these 
rules, but the license has not been issued. Normally, parties will have 
30 days from the Departments' filing of preliminary conditions and 
prescriptions to request a hearing or submit alternatives. 7 CFR 1.621, 
1.671; 43 CFR 45.21, 45.71; 50 CFR 221.21, 221.71. But in cases 
currently pending before FERC, the Departments may have already filed 
their preliminary conditions, conditions, preliminary prescriptions, or 
prescriptions by the effective date of these rules.
    Under this section, hearing requests and alternatives in such cases 
will be due 30 days after the effective date of these rules. Any notice 
of intervention and response will be due 15 days thereafter, consistent 
with 7 CFR 1.622, 43 CFR 45.22, and 50 CFR 221.22. Within the next 75 
days, the Departments will consult with each other to determine whether 
to consolidate any hearing requests they may have received, and with 
FERC to determine a time frame for each hearing process. Depending on 
how far along each license proceeding has progressed, FERC may need to 
suspend or extend the remaining steps to accommodate the hearing 
process and alternatives analysis required by EPAct.
    If, within the first 30 days after the effective date of these 
rules, hearing requests are filed in a number of cases with pending 
applications, it may not be possible for the Departments and their ALJ 
offices to handle them all simultaneously. Thus, the time frames worked 
out with FERC may provide for a staggering of the requested hearing 
processes, with priority being given to cases where the applications 
are closest to issuance. In that case, the Departments will not 
necessarily file answers on all hearing requests simultaneously. They 
will, however, issue notices to the parties in each case informing them 
of the time frame for the hearing process and the deadline for the 
answer. Once the answer is filed in any case, the rest of the hearing 
process will follow the normal schedule set out in these rules.
    If no hearing request is received but alternatives are proposed 
within 30 days of the effective date of these rules, the Departments 
will consult with each other to determine whether they have related 
conditions or prescriptions and alternatives that should be considered 
at the same time, and they will consult with FERC to determine a time 
frame for the alternatives process. They will then issue notices to the 
license parties, informing them of the time frame for the Departments' 
filing of modified conditions and prescriptions under 7 CFR 1.672(b), 
43 CFR 45.72(b), and 50 CFR 221.72(b).

Hearing Process

Representatives

    7 CFR 1.610 Who may represent a party, and what requirements apply 
to a representative?
    43 CFR 45.10 Who may represent a party, and what requirements apply 
to a representative?
    50 CFR 221.10 Who may represent a party, and what requirements 
apply to a representative?
    This section identifies who may represent an individual, 
partnership, corporation, governmental unit, or other entity. It also 
provides that each representative must file a notice of appearance and 
may be disqualified by the ALJ for misconduct or other good cause.

Document Filing and Service

    7 CFR 1.611 What are the form and content requirements for 
documents under Sec. Sec.  6.610 through 1.660?
    43 CFR 45.11 What are the form and content requirements for 
documents under this subpart?
    50 CFR 221.11 What are the form and content requirements for 
documents under this subpart?
    This section specifies the format, caption, signature, and contact 
information requirements for documents filed under the hearing process. 
These requirements apply to documents prepared as part of the hearing 
process, such as a hearing request, notice of intervention and 
response, answer, motion, reply, discovery request, discovery response, 
written testimony, or brief. They do not apply to supporting materials 
prepared separately, such as studies, reports, articles, etc., that the 
parties may submit as attachments to their hearing process documents.
    7 CFR 1.612 Where and how must documents be filed?

[[Page 69810]]

    43 CFR 45.12 Where and how must documents be filed?
    50 CFR 221.12 Where and how must documents be filed?
    This section establishes requirements for the filing of documents. 
Each Department has designated an office where documents must be filed 
before a case has been referred for docketing and assignment to an ALJ. 
After the referral, documents are to be filed with the appropriate 
ALJ's office. Documents may be filed by hand delivery, overnight 
delivery, or fax and are considered filed when received.
    7 CFR 1.613 What are the requirements for service of documents?
    43 CFR 45.13 What are the requirements for service of documents?
    50 CFR 221.13 What are the requirements for service of documents?
    This section provides that any request for a hearing and any notice 
of intervention and response must be served on FERC and all parties to 
the FERC license proceeding. All other filed documents and all 
documents issued by the ALJ must be served on the parties to the 
hearing. Service generally may be made by hand delivery, overnight 
delivery, fax, or e-mail. A certificate of service is required.

Initiation of Hearing Process

    7 CFR 1.620 What supporting information must the Forest Service 
provide with its preliminary conditions?
    43 CFR 45.20 What supporting information must a bureau provide with 
its preliminary conditions or prescriptions?
    50 CFR 221.20 What supporting information must NMFS provide with 
its preliminary conditions or prescriptions?
    Under this section, when a component of any Department files a 
preliminary condition or prescription with FERC, it must provide a 
supporting rationale, along with an index to its administrative record 
that identifies the studies or other documents relied upon.
    7 CFR 1.621 How do I request a hearing?
    43 CFR 45.21 How do I request a hearing?
    50 CFR 221.21 How do I request a hearing?
    This section provides that any party to the FERC license proceeding 
may request a hearing on disputed issues of material fact with respect 
to a preliminary condition or prescription by filing a request with the 
designated Departmental office. The request must be filed within 30 
days after the deadline for filing preliminary conditions or 
prescriptions with FERC (or for pending applications that are already 
past that point in the FERC licensing process, within 30 days of the 
effective date of these regulations). A hearing request must contain a 
list of the factual issues that the requester disputes; the basis for 
the requester's opinion that the facts, as stated by the Departmental 
component, are unfounded or erroneous; citations to any studies or 
other documents relied upon, and copies of any such documents that are 
not already in the record of the license proceeding. The requester must 
also provide a list of the witnesses and exhibits it intends to use at 
the hearing; this list will assist other parties in planning their 
discovery.
    7 CFR 1.622 How do I file a notice of intervention and response?
    43 CFR 45.22 How do I file a notice of intervention and response?
    50 CFR 221.22 How do I file a notice of intervention and response?
    Under this section, any other party to the FERC license proceeding 
may file a response to the hearing request and a notice of intervention 
in the hearing. The response and notice must be filed with the 
designated Departmental office within 15 days after a request for 
hearing is served. This deadline corresponds to the ILP deadline for 
filing reply comments to the preliminary conditions or prescriptions, 
i.e., 105 days after the REA notice. 18 CFR 5.23(a).
    The response may not raise new disputed issues of material fact, 
since the deadline for doing so (under section 7 CFR 1.621, 43 CFR 
45.21, or 50 CFR 221.21) will have passed. But the party filing a 
response may agree with the facts as stated either by the Departmental 
component or the hearing requester (or a mix of the two). In any event, 
the response must explain the party's position with respect to the 
information provided by the requester. The party may either rely on the 
information provided by the Departmental component or the requester or 
may provide additional information. The party must also provide a list 
of the witnesses and exhibits it intends to use at the hearing.
    7 CFR 1.623 When will hearing requests be consolidated?
    43 CFR 45.23 When will hearing requests be consolidated?
    50 CFR 221.23 When will hearing requests be consolidated?
    This section provides that the Departments will confer on any 
hearing requests they receive, decide whether to consolidate them for 
hearing under designated criteria, and if so, decide which Department's 
ALJ will conduct the hearing. As explained previously, all hearing 
requests with respect to any conditions from the same Department will 
be consolidated for hearing, as will all hearing requests with respect 
to any prescriptions from the same Department.
    In other circumstances--conditions and prescriptions from the same 
Department, conditions from more than one Department, prescriptions 
from more than one Department, etc.-- the Departments may consolidate 
the hearings if there are common issues of material fact or 
consolidation is otherwise appropriate. Consolidation will often 
benefit both the Departments and the parties by avoiding duplication of 
effort and the risk of inconsistent results.
    7 CFR 1.624 How will the Forest Service respond to any hearing 
requests?
    43 CFR 45.24 How will the bureau respond to any hearing requests?
    50 CFR 221.24 How will NMFS respond to any hearing requests?
    Under this section in the Agriculture and Interior regulations, the 
Departmental component that filed the preliminary condition or 
prescription at issue must file an answer to any hearing request within 
45 days after the deadline for filing any hearing requests 
(approximately 30 days after the deadline for filing any notice of 
intervention and response). The Commerce regulation is slightly 
different, since Commerce does not have a separate office where NMFS 
would file an answer. Rather, NMFS will determine under 50 CFR 221.24 
whether to file an answer; if it decides to do so, the answer would be 
included in the referral to the appropriate ALJ's office under 50 CFR 
221.25.
    For all three Departments, the answer must state whether the 
Departmental component is willing to stipulate to the facts as alleged 
by the requester, believes that any issue raised is not factual or not 
material, or agrees that the issue is disputed, factual, and material. 
The Departmental component must also indicate whether the hearing 
request will be consolidated under section 7 CFR 1.623, 43 CFR 45.23, 
or 50 CFR 221.23 with any other hearing requests, and must provide a 
list of the witnesses and exhibits the Departmental component intends 
to use at the hearing.
    7 CFR 1.625 What will the Forest Service do with any hearing 
requests?
    43 CFR 45.25 What will DOI do with any hearing requests?
    50 CFR 221.25 What will NMFS do with any hearing requests?
    This section in the Agriculture and Interior regulations states 
that, within 5 days after receipt of the answer, the designated 
Departmental office will

[[Page 69811]]

refer the case to the appropriate Department's ALJ office for a hearing 
and will notify the parties and FERC of the referral. The Commerce 
regulation combines the 45-day answer period and the 5-day referral 
period from the Agriculture and Interior regulations, and states that 
NMFS will refer the case for a hearing within 50 days after the 
deadline for filing any hearing requests and will notify the parties 
and FERC of the referral.
    7 CFR 1.626 What regulations apply to a case referred for a 
hearing?
    43 CFR 45.26 What regulations apply to a case referred for a 
hearing?
    50 CFR 221.26 What regulations apply to a case referred for a 
hearing?
    This section explains that the hearing will be conducted under the 
regulations of whichever Department is providing the ALJ to preside 
over the hearing. For example, a hearing that was requested under 7 CFR 
1.621 or 50 CFR 221.21 may be conducted under 43 CFR 45.30 et seq., if 
multiple hearing requests are consolidated and assigned to an Interior 
ALJ.

General Provisions Related to Hearings

    7 CFR 1.630 What will the Office of Administrative Law Judges do 
with a case referral?
    43 CFR 45.30 What will the Hearings Division do with a case 
referral?
    50 CFR 221.30 What will DOC's designated ALJ office do with a case 
referral?
    This section provides that, within 5 days after issuance of the 
referral notice, the appropriate ALJ's office will docket the case, 
assign an ALJ, and issue a docketing notice. The ALJ will 
simultaneously issue a notice setting the time, place, and method for 
the initial prehearing conference under section 7 CFR 1.640, 43 CFR 
45.40, and 50 CFR 221.40.
    7 CFR 1.631 What are the powers of the ALJ?
    43 CFR 45.31 What are the powers of the ALJ?
    50 CFR 221.31 What are the powers of the ALJ?
    This section states that the ALJ will have all powers necessary to 
conduct a fair, orderly, expeditious, and impartial hearing process, 
including the power to rule on motions, authorize discovery, regulate 
the course of hearings, and issue a decision on the disputed issues of 
material fact.
    7 CFR 1.632 What happens if the ALJ becomes unavailable?
    43 CFR 45.32 What happens if the ALJ becomes unavailable?
    50 CFR 221.32 What happens if the ALJ becomes unavailable?
    This section contains standard provisions for appointment of a 
successor ALJ, if the ALJ originally assigned becomes unavailable or 
unable to perform his or her duties. Given the short time period 
covered by the hearing process, it is expected that these provisions 
will rarely be used.
    7 CFR 1.633 Under what circumstances may the ALJ be disqualified?
    43 CFR 45.33 Under what circumstances may the ALJ be disqualified?
    50 CFR 221.33 Under what circumstances may the ALJ be disqualified?
    This section contains standard provisions for disqualification of 
the ALJ for personal bias or other cause.
    7 CFR 1.634 What is the law governing ex parte communications?
    43 CFR 45.34 What is the law governing ex parte communications?
    50 CFR 221.34 What is the law governing ex parte communications?
    This section contains standard provisions prohibiting most ex parte 
communications with the ALJ, consistent with the Administrative 
Procedure Act. Ex parte inquiries concerning case status or procedural 
requirements are generally permitted.
    7 CFR 1.635 What are the requirements for motions?
    43 CFR 45.35 What are the requirements for motions?
    50 CFR 221.35 What are the requirements for motions?
    Under this section, any party may apply for an order or ruling by 
presenting a motion to the ALJ in writing or at the hearing. Other 
parties may respond within 10 days, unless another regulation or the 
ALJ imposes a different response deadline. The expedited nature of the 
hearings under these rules will not allow for an extensive motions 
practice, as may occur in other administrative and judicial litigation. 
In particular, the rules do not provide for motions for summary 
decision (comparable to motions for summary judgment under FRCP 56), 
since the ALJ will have already determined in the initial prehearing 
conference that disputed issues of material fact require a hearing.

Prehearing Conferences and Discovery

    7 CFR 1.640 What are the requirements for prehearing conferences?
    43 CFR 45.40 What are the requirements for prehearing conferences?
    50 CFR 221.40 What are the requirements for prehearing conferences?
    Paragraph (a) of this section provides for an initial prehearing 
conference to be conducted about 20 days after issuance of the referral 
notice under section 7 CFR 1.625, 43 CFR 45.25, or 50 CFR 221.25 
(approximately 15 days after issuance of the docketing notice under 
section 7 CFR 1.630, 43 CFR 45.30, or 50 CFR 221.30). This conference 
will be critical to the overall hearing process.
    Theoretically, an initial prehearing conference could be held 
within a few days after the assignment of an ALJ, but in fact the 
parties will need the additional time to develop and file their 
discovery requests and objections and otherwise prepare for the 
conference. Under section 7 CFR 1.641(d), 43 CFR 45.41(d), or 50 CFR 
221.41(d), the parties must file their discovery motions within 7 days 
after issuance of the referral notice under section 7 CFR 1.625, 43 CFR 
45.25, or 50 CFR 221.25, or approximately 12 days after the Department 
files its answer. While the parties can start developing their 
discovery requests sooner, they will not know until the Department 
files its answer under section 7 CFR 1.624, 43 CFR 45.24, or 50 CFR 
221.24 what issues remain in dispute and what witnesses and exhibits 
the Department intends to present at the hearing. (The parties also 
cannot file discovery motions with the ALJ before any ALJ has been 
assigned to the case under section 7 CFR 1.630, 43 CFR 45.30, or 50 CFR 
221.30, which occurs just 2 days before the discovery motions are due.) 
Under section 7 CFR 1.641(e), 43 CFR 45.41(e), or 50 CFR 221.41(e), the 
parties must file any objections to another party's discovery motion 
within 7 days after service of a discovery motion.
    Prior to the initial prehearing conference, the parties' 
representatives are required to make a good faith effort to meet (most 
likely by telephone) and attempt to reach agreement on discovery and 
the schedule of remaining steps in the hearing process. Department 
counsel are encouraged to take the lead in scheduling the meeting of 
the parties, if other representatives do not do so. Agreements reached 
at the meeting of the parties will serve to expedite the initial 
prehearing conference and may allow the parties to initiate discovery 
before the conference.
    The initial prehearing conference may be held in person, by 
conference call, or by other appropriate means. It will be used to 
identify, narrow and clarify the disputed issues of material fact; to 
rule on the parties' motions for discovery (and objections thereto) and 
to set a deadline for the completion of discovery; to discuss the 
evidence on which each party intends to rely at the hearing; to set the 
deadline for

[[Page 69812]]

submission of written testimony under section 7 CFR 1.652, 43 CFR 
45.52, or 50 CFR 221.52; and to set the date, time, and place of the 
hearing. The conference may also be used to discuss limiting and 
grouping witnesses to avoid duplication; to discuss stipulations of 
fact and of the content and authenticity of documents; to consider 
requests that the ALJ take official notice of public records or other 
matters; to discuss the submission of documents in electronic form; and 
to consider any other matters that may aid in the disposition of the 
case.
    Under paragraph (b) of this section, the ALJ may schedule other 
prehearing conferences as needed. Under paragraph (g), within 2 days of 
the conclusion of any conference, the ALJ will issue an order setting 
forth any agreements reached by the parties and any rulings made by the 
ALJ.
    7 CFR 1.641 How may parties obtain discovery of information needed 
for the case?
    43 CFR 45.41 How may parties obtain discovery of information needed 
for the case?
    50 CFR 221.41 How may parties obtain discovery of information 
needed for the case?
    This section provides that parties may obtain discovery by 
agreement of the parties or by filing a motion within 7 days after 
issuance of the referral notice under section 7 CFR 1.625, 43 CFR 
45.25, or 50 CFR 221.25. Any proposed discovery request must be 
attached to the motion. Other parties may file objections within 7 days 
after service of a discovery motion. The ALJ will rule on the motions 
and objections during or promptly after the initial prehearing 
conference.
    Under the Federal Rules of Civil Procedure (FRCP), the parties may 
initiate discovery on their own, without needing permission from the 
judge or agreement from other parties, and discovery often takes months 
to complete. Local court rules typically set limits on discovery; but 
generally ample time is available for the parties to propound 
discovery, seek protective orders, submit responses and objections, 
file motions to compel, etc. The expedited nature of the trial-type 
hearing under these regulations cannot accommodate such a protracted 
discovery process. As a result, the initial prehearing conference will 
be used as necessary to regulate the course of discovery and deal with 
disputes ``up front'' to the extent possible.
    Paragraph (a) of this section lists the following methods of 
discovery, as limited by this section, as available to the parties: 
interrogatories, depositions, and requests for documents or tangible 
things or for entry on land. The other main discovery tool under the 
FRCP, requests for admission, has been omitted as unnecessary in the 
context of these hearings. The parties will have just completed their 
exchange of hearing requests, responses, and answers, specifying what 
facts they agree to or dispute; and the ALJ will use the initial 
prehearing conference to further identify, narrow, and clarify the 
disputed issues and encourage stipulations. Under these circumstances, 
little if anything would be gained by the use of requests for 
admission.
    The ALJ will authorize discovery requested by a party only if the 
ALJ determines that the criteria in paragraph (b) of this section have 
been met. These criteria include that the discovery will not 
unreasonably delay the hearing process; that the scope of the discovery 
is not unduly burdensome; that the discovery method to be used is the 
least burdensome method available; and that the information sought is 
not already in the record of the license proceeding or otherwise 
obtainable by the party.
    These criteria are needed to keep the discovery process within 
reasonable bounds, in light of the tight time constraints applicable to 
the hearing. The criteria reflect the facts that the FERC license 
proceeding has been underway for over 3 years by this point; the 
parties have been dealing with each other extensively throughout that 
period; the great bulk of the relevant information has already been 
filed in the record of that proceeding; and the parties will have 
identified any additional information they may have in their hearing 
requests, responses, and answers. Consequently, there should be very 
little new information that the parties would need to uncover through 
an unfettered discovery process, even if there was time for it.
    Paragraphs (f) and (g) of this section contain standard limitations 
on a party's ability to discover materials prepared by another party 
for the hearing or facts known or opinions held by another party's 
expert. Paragraph (h) limits depositions to witnesses who will be 
unavailable to testify at the hearing. This limitation will further 
reduce the time needed for discovery and the burden on the parties, who 
could otherwise face the prospect of multiple depositions at multiple 
locations around the country during a very limited time period, while 
simultaneously responding to interrogatories, requests for documents, 
etc. There is also less need to depose witnesses who will be presented 
at the hearing, since under section 7 CFR 1.652, 43 CFR 45.52, or 50 
CFR 221.52, the direct testimony of such witnesses must be submitted in 
writing, generally 10 days before the hearing.
    Paragraph (h)(3) provides that a party may depose a senior 
Department employee only if the party shows that the employee's 
testimony is necessary to provide significant information that is not 
available from any other source or by less burdensome means and that 
the deposition would not significantly interfere with the employee's 
ability to perform his or her government duties. This limitation is 
based on case law under the FRCP, e.g., Jones v. Hirschfeld, 219 F.R.D. 
71 (S.D.N.Y. 2003); Alexander v. Federal Bureau of Investigation, 186 
F.R.D. 1 (D.D.C. 1998).
    Under paragraph (i) of this section, all discovery agreed to by the 
parties or approved by the ALJ must be completed within 25 days after 
the initial prehearing conference, unless the ALJ sets a different 
deadline.
    7 CFR 1.642 When must a party supplement or amend information it 
has previously provided?
    43 CFR 45.42 When must a party supplement or amend information it 
has previously provided?
    50 CFR 221.42 When must a party supplement or amend information it 
has previously provided?
    Paragraph (a) of this section states that a party must supplement 
or amend its discovery responses if it learns that a prior response is 
incorrect or incomplete.
    Paragraph (b) gives the parties 5 days after the completion of 
discovery to update their witness and exhibit lists. If a party wishes 
to include any new witness or exhibit on its updated list, it must 
provide an explanation of why the witness or exhibit was not included 
on the original list filed under section 7 CFR 1.621, 43 CFR 45.21, or 
50 CFR 221.21; 7 CFR 1.622, 43 CFR 45.22, or 50 CFR 221.22; or 7 CFR 
1.624, 43 CFR 45.24, or 50 CFR 221.24. Paragraph (c) provides for 
sanctions for a party's failure to disclose information as required, 
unless the failure was substantially justified or is harmless.
    7 CFR 1.643 What are the requirements for written interrogatories?
    43 CFR 45.43 What are the requirements for written interrogatories?
    50 CFR 221.43 What are the requirements for written 
interrogatories?
    If the ALJ grants a motion for the use of interrogatories, this 
section provides that the other party must file its answers within 15 
days. If the information requested could be obtained from a review of 
documents, the other party may provide access to the documents,

[[Page 69813]]

rather than compiling the information for the requesting party.
    7 CFR 1.644 What are the requirements for depositions?
    43 CFR 45.44 What are the requirements for depositions?
    50 CFR 221.44 What are the requirements for depositions?
    If the ALJ grants a motion to depose a person, this section 
provides that the party taking the deposition must arrange and pay for 
the reporter. Other standard provisions relating to the taking, 
transcription, and signing of a deposition are detailed. If approved by 
the ALJ, a deposition may be taken by conference call or may be video 
recorded.
    7 CFR 1.645 What are the requirements for requests for documents or 
tangible things or entry on land?
    43 CFR 45.45 What are the requirements for requests for documents 
or tangible things or entry on land?
    50 CFR 221.45 What are the requirements for requests for documents 
or tangible things or entry on land?
    If the ALJ grants a motion to use requests for production of 
documents or tangible things or entry on land, this section provides 
that the other party must file a response within 15 days.
    7 CFR 1.646 What sanctions may the ALJ impose for failure to comply 
with discovery?
    43 CFR 45.46 What sanctions may the ALJ impose for failure to 
comply with discovery?
    50 CFR 221.46 What sanctions may the ALJ impose for failure to 
comply with discovery?
    This section states that, if a party fails to comply with an order 
approving discovery, the ALJ may impose appropriate sanctions, such as 
not allowing the party to introduce evidence that was improperly 
withheld or inferring that the information withheld would have been 
adverse to the party.
    7 CFR 1.647 What are the requirements for subpoenas and witness 
fees?
    43 CFR 45.47 What are the requirements for subpoenas and witness 
fees?
    50 CFR 221.47 What are the requirements for subpoenas and witness 
fees?
    This section contains standard provisions regarding the issuance, 
service, and enforcement of a subpoena, to the extent authorized by 
law; payment of witness fees; and motions to quash. A limitation on 
subpoenaing senior Department employees is included, comparable to 7 
CFR 1.641(h)(3), 43 CFR 45.41(h)(3), or 50 CFR 221.41(h)(3) discussed 
above.

Hearing, Briefing, and Decision

    7 CFR 1.650 When and where will the hearing be held?
    43 CFR 45.50 When and where will the hearing be held?
    50 CFR 221.50 When and where will the hearing be held?
    This section states that the hearing will be held at the time and 
place set during the prehearing conference, generally within 15 days 
after the completion of discovery, unless the ALJ orders otherwise.
    7 CFR 1.651 What are the parties' rights during the hearing?
    43 CFR 45.51 What are the parties' rights during the hearing?
    50 CFR 221.51 What are the parties' rights during the hearing?
    This section acknowledges the parties' rights at the hearing to 
present direct and rebuttal evidence; to make objections, motions, and 
arguments; and to cross-examine witnesses.
    7 CFR 1.652 What are the requirements for presenting testimony?
    43 CFR 45.52 What are the requirements for presenting testimony?
    50 CFR 221.52 What are the requirements for presenting testimony?
    Paragraph (a) of this section requires the parties to submit any 
direct testimony in writing within 5 days after the date set for 
completion of discovery (generally 10 days before the hearing). 
Submission of written direct testimony in advance will assist the 
parties in preparing their cases and will expedite the hearing process, 
given the short time available for both discovery and the hearing.
    Under paragraph (b), cross-examination and re-direct will be 
conducted orally at the hearing. Under paragraph (c), the ALJ may allow 
a witness to testify by conference call.
    7 CFR 1.653 How may a party use a deposition in the hearing?
    43 CFR 45.53 How may a party use a deposition in the hearing?
    50 CFR 221.53 How may a party use a deposition in the hearing?
    This section contains standard provisions for the admissibility of 
a deposition of a witness who is unavailable to testify at the hearing.
    7 CFR 1.654 What are the requirements for exhibits, official 
notice, and stipulations?
    43 CFR 45.54 What are the requirements for exhibits, official 
notice, and stipulations?
    50 CFR 221.54 What are the requirements for exhibits, official 
notice, and stipulations?
    This section contains standard provisions on marking and offering 
exhibits, asking the ALJ to take official notice of public documents, 
and using stipulations regarding facts or the authenticity of 
documents.
    7 CFR 1.655 What evidence is admissible at the hearing?
    43 CFR 45.55 What evidence is admissible at the hearing?
    50 CFR 221.55 What evidence is admissible at the hearing?
    This section contains standard provisions on the admissibility of 
written, oral, documentary, or demonstrative evidence that is relevant, 
reliable, and probative, and not privileged or unduly repetitious or 
cumulative. As is typical in administrative proceedings, the rules of 
evidence used in Federal courts do not apply, and hearsay evidence is 
admissible. However, the Federal Rules of Evidence may be used as 
guidance by the ALJ and the parties in determining what evidence is 
relevant, reliable, probative, and not privileged. Evidentiary 
objections will be ruled on by the ALJ.
    7 CFR 1.656 What are the requirements for transcription of the 
hearing?
    43 CFR 45.56 What are the requirements for transcription of the 
hearing?
    50 CFR 221.56 What are the requirements for transcription of the 
hearing?
    This section contains standard provisions on transcripts and 
reporter's fees, including correction of the transcript.
    7 CFR 1.657 What is the standard of proof?
    43 CFR 45.57 What is the standard of proof?
    50 CFR 221.57 What is the standard of proof?
    In accordance with the holding in Steadman v. SEC, 450 U.S. 91 
(1981), this section establishes that the standard of proof is a 
preponderance of the evidence.
    Comments are sought on the separate question of who bears the 
burden of proof.
    7 CFR 1.658 When will the hearing record close?
    43 CFR 45.58 When will the hearing record close?
    50 CFR 221.58 When will the hearing record close?
    This section states that the hearing record will close when the ALJ 
closes the hearing, unless he or she directs otherwise. No evidence may 
be submitted once the record closes.
    7 CFR 1.659 What are the requirements for post-hearing briefs?
    43 CFR 45.59 What are the requirements for post-hearing briefs?
    50 CFR 221.59 What are the requirements for post-hearing briefs?

[[Page 69814]]

    Under this section, each party may file an initial post-hearing 
brief within 10 days after the close of the hearing, unless the ALJ 
sets a different deadline. Reply briefs may be filed only if requested 
by the ALJ. Form and content requirements for briefs are specified.
    7 CFR 1.660 What are the requirements for the ALJ's decision?
    43 CFR 45.60 What are the requirements for the ALJ's decision?
    50 CFR 221.60 What are the requirements for the ALJ's decision?
    This section provides that the ALJ must issue a decision within 30 
days after the close of the hearing or 90 days after issuance of the 
referral notice, whichever occurs first. The decision must contain 
findings of fact on all disputed issues of material fact; incidental 
conclusions of law necessary to make the findings of fact (e.g., 
rulings on materiality); and reasons for the findings and conclusions. 
The decision will not contain conclusions as to whether any preliminary 
condition or prescription should be adopted, modified, or rejected 
because that is a matter for the exercise of the Departments' judgment 
in light of the ALJ's findings and other available information 
(including any alternative conditions or prescriptions and supporting 
information submitted by the parties).
    Under paragraph (c) of this section, the ALJ will serve the 
decision on each party to the hearing and forward a copy of the 
decision to FERC, along with the complete hearing record, for inclusion 
in the license proceeding record.
    Paragraph (d) provides that the ALJ's decision will be final, with 
respect to the disputed issues of material fact, for any Department 
involved in the hearing. The ALJ's decision must be considered in 
deciding whether to accept an alternative in accordance with 7 CFR 
1.673, 43 CFR 45.73, or 50 CFR 221.73. In a normal adjudication under 
the Administrative Procedure Act, an ALJ issues an initial or 
recommended decision that is subject to appeal or review within the 
agency. 5 U.S.C. 557(b). Even under section 557(b), however, an agency 
can limit the issues it will review on appeal, including denying any 
appeal from findings of fact. Attorney General's Manual on the 
Administrative Procedure Act 84 (1947); 3 Kenneth Culp Davis, 
Administrative Law Treatise Sec.  17.14 (2d ed. 1980).
    Here, the ALJ is not issuing a normal decision, which under section 
557(c) includes findings of fact, conclusions of law on substantive 
issues, and an ``appropriate rule, order, sanction, relief, or denial 
thereof.'' Rather, the ALJ is providing findings of fact, without 
substantive legal rulings or any order, sanction, etc. The ALJ's 
decision will not resolve, even provisionally, the overall dispute 
among the parties over the preliminary conditions and prescriptions. At 
most, the ALJ is providing a definitive view of the facts underlying 
the dispute, to be used by the parties in submitting their comments, 
the Departments in analyzing alternatives and developing modified 
conditions and prescriptions, and FERC in finalizing its NEPA document.
    Practical considerations also militate against any appeal of the 
ALJ's decision. Section 241 of EPAct requires that the trial-type 
hearing be conducted within 90 days and within FERC's time frame for 
the license proceeding, and there is not enough time available to also 
include an appeals process, with additional briefing, analysis, and 
decision by an appellate body. Moreover, in the case of a consolidated 
hearing, it is not clear what appellate body would consider the appeal, 
or whether each Department involved would need to review the ALJ's 
decision separately, with the potential for inconsistent results.
    Paragraph (d) of this section further provides that, to the extent 
the ALJ's decision forms the basis for any condition or prescription 
subsequently included in the license, it may be subject to judicial 
review under 16 U.S.C. 825l(b). Even though, with respect to the 
disputed issues of material fact, the ALJ's decision will be final for 
the Departments involved, it will not be ripe for judicial review until 
the Departments complete their process of modifying conditions and 
prescriptions and FERC issues the license order.

Alternatives Process

    7 CFR 1.670 How must documents be filed and served under Sec. Sec.  
1.670 through 1.673?
    43 CFR 45.70 How must documents be filed and served under this 
subpart?
    50 CFR 221.70 How must documents be filed and served under this 
subpart?
    This section contains filing and service requirements for documents 
relating to the alternatives process. There are no special requirements 
for format, caption, or signature, as there are for documents relating 
to the hearing process.
    7 CFR 1.671 How do I propose an alternative?
    43 CFR 45.71 How do I propose an alternative?
    50 CFR 221.71 How do I propose an alternative?
    Under paragraph (a) of this section, any license party may propose 
an alternative within 30 days of the deadline for the Departments to 
file their preliminary conditions and prescriptions. Paragraph (b) 
specifies what must be included in a proposal for an alternative. The 
license party must include a description of the alternative and an 
explanation of how the alternative meets the criteria set out in FPA 
section 33.
    7 CFR 1.672 What will the Forest Service do with a proposed 
alternative?
    43 CFR 45.72 What will the bureau do with a proposed alternative?
    50 CFR 221.72 What will NMFS do with a proposed alternative?
    Within 60 days after the close of the comment period on FERC's NEPA 
document, the Department must analyze the alternatives it has received, 
and file with FERC its modified conditions or prescription. Based on 
the information available to it, the Department could adopt as a 
modified condition or prescription its original preliminary condition 
or prescription, an alternative, or a new condition or prescription. 
The Department must also file its analysis of the modified condition or 
prescription and of any proposed alternatives.
    Of course, a party that proposed an alternative may in some cases 
choose to withdraw the alternative in response to the ALJ's findings. 
In that case, no comparison between the preliminary condition or 
prescription and the withdrawn alternative would be necessary.
    7 CFR 1.673 How will the Forest Service analyze a proposed 
alternative and formulate its modified condition?
    43 CFR 45.73 How will the bureau analyze a proposed alternative and 
formulate its modified condition or prescription?
    50 CFR 221.73 How will NMFS analyze a proposed alternative and 
formulate its modified condition?
    Paragraph (a) of this section provides that, in deciding whether to 
adopt a proposed alternative, the Department must consider all 
available evidence, including information from any license party and 
FERC, comments received on the Department's preliminary condition or 
prescription and on FERC's NEPA document, findings of fact from the 
ALJ, and the information provided in support of the alternative under 7 
CFR 1.671, 43 CFR 45.71, or 50 CFR 221.71.
    Consistent with FPA section 33, paragraph (b) states that the 
Department must adopt a proposed alternative if it will either cost 
significantly less to implement or result in improved operation of the 
project works for electricity production, and if it will

[[Page 69815]]

either provide for the adequate protection and utilization of the 
reservation under FPA section 4(e) or be no less protective than the 
fishway developed by the Department.
    Paragraphs (c) and (d) specify what information the Department must 
file with FERC along with its modified condition or prescription. This 
includes a written statement demonstrating that the Department gave 
equal consideration to the effects of the modified condition or 
prescription and any alternative not adopted on energy supply, 
distribution, cost, and use; flood control; navigation; water supply; 
air quality; and the preservation of other aspects of environmental 
quality.
    7 CFR 1.674 Has OMB approved the information collection provisions 
of Sec. Sec.  1.670 through 1.673?
    43 CFR 45.74 Has OMB approved the information collection provisions 
of this subpart?
    50 CFR 221.74 Has OMB approved the information collection 
provisions of this subpart?
    This section informs the public of the Departments' compliance with 
the Paperwork Reduction Act of 1995 and of the control number that the 
Office of Management and Budget (OMB) has issued for information 
collection related to the alternatives process.

IV. Consultation With FERC

    Pursuant to EPAct's requirement that the agencies promulgate these 
rules ``in consultation with the Federal Energy Regulatory 
Commission,'' the agencies have consulted with FERC regarding the 
content of these rules.

V. Procedural Requirements

    A. Decision to issue interim final rules with request for comments. 
These regulations are being published as interim final rules with 
request for comments, and without prior notice and comment, under 5 
U.S.C. 553(b)(A) and (B). Under section 553(b)(A), interpretative rules 
and rules of agency procedure or practice, like the regulations in 
these interim final rules, do not require a notice of proposed 
rulemaking.
    Moreover, under section 553(b)(B), the Departments for good cause 
find that prior notice and comment are impracticable and contrary to 
the public interest. Section 241 of EPAct requires the Departments to 
promulgate these rules jointly, in consultation with FERC, within 90 
days of enactment of the statute. It would not be possible to meet that 
deadline if the Departments had to publish a proposed rule, allow the 
public sufficient time to submit comments, analyze the comments, and 
publish a final rule, especially given the need for interagency 
coordination at each step of the process. In addition to meeting the 
statutory mandate, the Departments find that it is in the public 
interest to promulgate these regulations promptly, so that (a) parties 
in hydropower license proceedings can avail themselves of the new 
trial-type hearing right and alternatives process established in EPAct 
and (b) delays in the FERC licensing process can be avoided or 
minimized.
    B. Decision to make the rules effective upon publication. Under 5 
U.S.C. 553(d)(3), the Departments for good cause find that these rules 
should be made effective upon publication in the Federal Register, 
rather than after the usual 30-day period. This finding is based on the 
same reasons that support the finding of good cause under section 
553(b)(B), explained above. As noted previously, there are a number of 
license applications currently pending before FERC to which EPAct's 
trial-type hearing right and alternatives process apply. Section 241 of 
EPAct requires the Departments to fit the hearing process into FERC's 
time frame for the license proceeding, and delaying the effective date 
of these rules would only increase the number of cases in which the 
FERC licensing time frame would need to be adjusted to accommodate a 
hearing request and/or the alternatives process.
    C. Regulatory Planning and Review (E.O. 12866). The rules in this 
document are significant. Although these rules will not have an adverse 
effect or an annual effect of $100 million or more on the economy, OMB 
has determined that the procedures for an expedited trial-type hearing 
on disputed issues of material fact represent a novel approach to 
public participation and administrative review and have interagency 
implications. Therefore, OMB has reviewed these rules under Executive 
Order 12866.
    1. These rules will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, 
competition, jobs, the environment, public health or safety, or other 
units of government. A cost-benefit and economic analysis is not 
required.
    The Departments expect about 47 requests for hearing per year under 
the rules, each requiring about 800 hours of additional work by the 
requesters and 600 hours for other parties to the hearing process. The 
Departments expect about 351 alternative conditions and prescriptions 
to be proposed per year under the rules, each requiring about 200 hours 
of additional work by the proponent and 120 hours for other parties to 
the alternatives process. Staff costs for 47 hearing requests and 351 
alternatives per year are estimated at $5 million and hence clearly 
fall well short of $100 million. This conclusion also holds in a worst-
case analysis: if a hearing was requested and an alternative was 
proposed for every set of preliminary conditions or prescriptions, 
there would be about 97 hearings per year and 701 alternatives to 
analyze. Furthermore, because the decision to request a hearing or 
propose an alternative is entirely at the discretion of the party, any 
cost to the party will be incurred only when the party decides that the 
cost will be justified by the benefits of the process.
    2. These rules will not create inconsistencies with or interfere 
with other agencies' actions. Agencies other than the three Departments 
and FERC will not be affected by the hearing process authorized by the 
rules; and the rules have been crafted to avoid any inconsistencies or 
interference with the actions of the three Departments and FERC.
    3. These rules will not alter the budgetary effects of 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. These rules pertain only to the 
hearing procedures implementing recent amendments to the FPA, not to 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients.
    4. The assessment of OMB is that the rules raise novel policy 
issues, in that the expedited trial-type hearing process represents a 
novel approach to public participation and administrative review.
    D. Regulatory Flexibility Act. The Departments certify that these 
rules will not have a significant economic effect on a substantial 
number of small entities under the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq.
    These rules will not affect a substantial number of small entities. 
According to the Small Business Administration, for NAICS code 221111, 
hydroelectric power generation, a firm is small if, including its 
affiliates, its total electric output for the preceding fiscal year did 
not exceed 4 million megawatt hours. Although the regulated community 
of FERC licensees does include a substantial number of small entities, 
the number of affected entities in a given year is likely to be small, 
perhaps three to six per year.
    More important, the effect of the rules on small entities will not 
be significant. Any entity affected by these rules will have already 
been heavily involved in a FERC hydropower licensing proceeding, 
submitting and commenting on

[[Page 69816]]

information in the record of that proceeding. These rules merely 
provide an additional administrative procedure, should the entity 
choose to use it, to obtain a definitive ruling on disputed issues of 
material fact with respect to conditions and prescriptions to be 
included in the license. Any cost to the entity will be incurred only 
when it decides that the cost will be justified by the benefits of the 
process. For these reasons, the rules will not have a significant 
economic effect.
    E. Small Business Regulatory Enforcement Fairness Act. These rules 
are not major under the Small Business Regulatory Enforcement Fairness 
Act, 5 U.S.C. 804(2).
    1. As explained above, these rules will not have an annual effect 
on the economy of $100 million or more.
    2. These rules will not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. A hearing process for 
disputed issues of material fact with respect to the Departments' 
conditions and prescriptions will not affect costs or prices.
    3. These rules will not have significant, adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises. Implementing recent amendments to the FPA by 
establishing the hearing procedures in these rules should have no 
effects, adverse or beneficial, on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
enterprises to compete with foreign-based enterprises.
    F. Unfunded Mandates Reform Act. In accordance with the Unfunded 
Mandates Reform Act, 2 U.S.C 1531 et seq., The Departments find that:
    1. These rules will not have a significant or unique effect on 
State, local, or Tribal governments or the private sector.
    2. These rules will not produce an unfunded Federal mandate of $100 
million or more on State, local, or Tribal governments in the aggregate 
or on the private sector in any year; i.e., they do not constitute a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. State, local, and Tribal governments routinely file comments on 
the Departments' licensing conditions under the existing MCRP policy. 
The new opportunity for a hearing will be available to a State, local, 
or Tribal government only if it is a party to the license proceeding 
and chooses to participate in the hearing process. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act is not required.
    G. Takings (E.O. 12630). In accordance with Executive Order 12630, 
the Departments conclude that these rules will not have significant 
takings implications. The conditions and prescriptions included in 
hydropower licenses relate to operation of hydropower facilities on 
resources not owned by the applicant, i.e., public waterways and/or 
reservations. Therefore, these rules will not result in a taking of 
private property, and a takings implication assessment is not required.
    H. Federalism (E.O. 13132). In accordance with Executive Order 
13132, the Departments find that these rules do not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment. There is no foreseeable effect on States from establishing 
hearing procedures for disputed issues of material fact regarding 
Departmental conditions and prescriptions. The rules will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. The rules 
will not preempt State law. Therefore, a Federalism Assessment is not 
required.
    I. Civil Justice Reform (E.O. 12988). In accordance with Executive 
Order 12988, the Departments have determined that these rules will not 
unduly burden the judicial system and that they meet the requirements 
of sections 3(a) and 3(b)(2) of the Order. The rules provide clear 
language as to what is allowed and what is prohibited. Litigation 
regarding FERC hydropower licenses currently begins with a rehearing 
before FERC and then moves to Federal appeals court. By offering a 
trial-type hearing on disputed issues of material fact with respect to 
conditions and prescriptions developed by the Departments, the rules 
will likely result in a decrease in the number of proceedings that are 
litigated.
    J. Paperwork Reduction Act. With respect to the hearing process, 
these rules are exempt from the requirements of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. (PRA), because they will apply to the 
conduct of agency administrative proceedings involving specific 
individuals and entities. 44 U.S.C. 3518(c); 5 CFR 1320.4(a)(2). 
However, with respect to the alternatives process, these rules contain 
provisions that would collect information from the public, and 
therefore require approval from OMB under the PRA. According to the 
PRA, a Federal agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number that indicates OMB approval. OMB 
has reviewed the information collection in these rules on an emergency 
basis and approved it under OMB control number 1094-0001. This approval 
expires May 31, 2006.
    The purpose of the information collection in this rulemaking is to 
provide an opportunity for license parties to propose an alternative 
condition or prescription. Responses to this information collection are 
voluntary. We estimate that an average of 351 alternatives will be 
submitted per year over the next 3 years. We estimate that the average 
burden for preparing and submitting an alternative will be 200 hours; 
thus, the total information collection burden of this rulemaking is 
about 70,200 hours per year.
    Because this information collection was approved on an emergency 
basis, the OMB approval will expire in 6 months. We will be requesting 
a 3-year extension from OMB for this collection in accordance with the 
normal process for renewing an information collection approval. The 
first step in this renewal process is to request, via a Federal 
Register notice, public comments on the information collection. We are 
hereby doing so. In particular, we request your comments on (1) whether 
the collection of information is necessary and appropriate for its 
intended purpose; (2) the accuracy of our estimate of the burden; (3) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (4) ways to minimize the burden on the respondents of 
the collection of information, including the possible use of automated 
collection techniques or other forms of information technology.
    Please submit your comments by January 17, 2006 using one of the 
methods listed in the ADDRESSES section above.
    If you would like a copy of our submission to OMB that requested 
emergency approval of this information collection, which includes the 
OMB Form 83-I and supporting statement, please contact Larry Finfer as 
listed in the FOR FURTHER INFORMATION CONTACT section above. A copy 
will be sent to you at no charge.
    K. National Environmental Policy Act. The Departments have analyzed 
their respective rules in accordance with NEPA, Council on 
Environmental Quality (CEQ) regulations, 40 CFR part 1500, and the 
Departments' internal NEPA guidance. CEQ regulations, at 40 CFR 1508.4, 
define a ``categorical

[[Page 69817]]

exclusion'' as a category of actions that a department has determined 
ordinarily do not, individually or cumulatively, have a significant 
effect on the human environment. The regulations further direct each 
department to adopt NEPA procedures, including categorical exclusions. 
40 CFR 1507.3.
    Each Department has determined that these rules are categorically 
excluded from further environmental analysis under NEPA in accordance 
with its own authorities, listed below. These rules promulgate 
regulations of an administrative and procedural nature relating to 
trial-type hearings and the submission and analysis of alternatives as 
mandated under FPA, as amended by EPAct. They do not individually or 
cumulatively have a significant impact on the human environment and, 
therefore, neither an EA nor an EIS under NEPA is required. The 
relevant authorities for each Department are as follows:
    Agriculture: 7 CFR 1b.3(b); Forest Service Handbook 1909.15, 31.12.
    Interior: 516 Departmental Manual 2, Appendices 1-2.
    Commerce: NOAA Administrative Order 216-6, sections 5.05 and 
6.03c3(i).
    L. Government-to-Government relationship with Indian Tribes. In 
accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' 59 FR 22951 (May 4, 1994), supplemented by Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, 65 FR 67249 (Nov. 6, 2000), the Departments have assessed 
the impact of these rules on Tribal trust resources and have determined 
that they do not directly affect Tribal resources. The rules are 
procedural and administrative in nature. However, conditions and 
actions associated with an actual hydropower licensing proposal may 
directly affect Tribal resources; therefore the Departments will 
consult with Tribal governments when developing section 4(e) conditions 
and section 18 prescriptions needed to address the management of those 
resources.
    M. Effects on the Nation's Energy Supply. In accordance with 
Executive Order 13211, the Departments find that these rules will not 
have substantial direct effects on energy supply, distribution, or use, 
including shortfall in supply or price increase. Recent analysis by 
FERC has found that, on average, installed capacity increased through 
licensing by 4.06 percent, and the average annual generation loss, 
attributable largely to increased flows to protect aquatic resources, 
was 1.59 percent. (Report on Hydroelectric Licensing Policies, 
Procedures, and Regulations: Comprehensive Review and Recommendations 
Pursuant to Section 603 of the Energy Act of 2000, prepared by the 
staff of the Federal Energy Regulatory Commission, May 2001.) Since the 
licensing process itself has such a modest energy impact, these rules, 
which affect only the Departments' administrative review procedures, 
are not expected to have a significant impact under the Executive Order 
(i.e., reductions in electricity production in excess of 1 billion 
kilowatt-hours per year or in excess of 500 megawatts of installed 
capacity).
    N. Clarity of These Regulations. Executive Order 12866 requires 
each agency to write regulations that are easy to understand. We invite 
your comments on how to make these rules easier to understand, 
including answers to the following questions: (1) Are the requirements 
in the rules clearly stated? (2) Do the rules contain technical 
language or jargon that interferes with their clarity? (3) Does the 
format of the rules (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce their clarity? (4) Would the rules be 
easier to understand if they were divided into more (but shorter) 
sections? (A ``section'' appears in bold type and is preceded by the 
symbol ``Sec.  '' and a numbered heading, for example, Sec.  1.602 What 
terms are used in this subpart?) (5) Is the description of the rules in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the rules? (6) What else could we do to make the rules 
easier to understand?

List of Subjects in 7 CFR Part 1, 43 CFR Part 45, 50 CFR Part 221

    Administrative practice and procedure, Fisheries, Hydroelectric 
power, Indians--lands, National forests, National parks, National 
wildlife refuge system, Public land, Waterways, Wildlife.

    Dated: November 9, 2005.
David P. Tenny,
Deputy Undersecretary--Natural Resources and Environment, U.S. 
Department of Agriculture.

    Dated: November 8, 2005.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget, U.S. Department of 
the Interior.

    Dated: November 8, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service, National Oceanic and Atmospheric 
Administration, U.S. Department of Commerce.

0
For the reasons set forth in the preamble, the Departments of 
Agriculture, the Interior, and Commerce amend titles 7, 43, and 50 of 
the Code of Federal Regulations as set forth below.

Department of Agriculture

7 CFR Subtitle A

PART 1--ADMINISTRATIVE REGULATIONS

0
1. The Department of Agriculture adds subpart O to part 1, title 7, to 
read as follows:

Subpart O--Conditions in FERC Hydropower Licenses

General Provisions

Sec.
1.601 What is the purpose of this subpart, and to what license 
proceedings does it apply?
1.602 What terms are used in this subpart?
1.603 How are time periods computed?
1.604 What deadlines apply to pending applications?

Hearing Process

Representatives

1.610 Who may represent a party, and what requirements apply to a 
representative?

Document Filing and Service

1.611 What are the form and content requirements for documents under 
Sec. Sec.  1.611 through 1.660?
1.612 Where and how must documents be filed?
1.613 What are the requirements for service of documents?

Initiation of Hearing Process

1.620 What supporting information must the Forest Service provide 
with its preliminary conditions?
1.621 How do I request a hearing?
1.622 How do I file a notice of intervention and response?
1.623 When will hearing requests be consolidated?
1.624 How will the Forest Service respond to any hearing requests?

[[Page 69818]]

1.625 What will the Forest Service do with any hearing requests?
1.626 What regulations apply to a case referred for a hearing?

General Provisions Related to Hearings

1.630 What will OALJ do with a case referral?
1.631 What are the powers of the ALJ?
1.632 What happens if the ALJ becomes unavailable?
1.633 Under what circumstances may the ALJ be disqualified?
1.634 What is the law governing ex parte communications?
1.635 What are the requirements for motions?

Prehearing Conferences and Discovery

1.640 What are the requirements for prehearing conferences?
1.641 How may parties obtain discovery of information needed for the 
case?
1.642 When must a party supplement or amend information it has 
previously provided?
1.643 What are the requirements for written interrogatories?
1.644 What are the requirements for depositions?
1.645 What are the requirements for requests for documents or 
tangible things or entry on land?
1.646 What sanctions may the ALJ impose for failure to comply with 
discovery?
1.647 What are the requirements for subpoenas and witness fees?

Hearing, Briefing, and Decision

1.650 When and where will the hearing be held?
1.651 What are the parties' rights during the hearing?
1.652 What are the requirements for presenting testimony?
1.653 How may a party use a deposition in the hearing?
1.654 What are the requirements for exhibits, official notice, and 
stipulations?
1.655 What evidence is admissible at the hearing?
1.656 What are the requirements for transcription of the hearing?
1.657 What is the standard of proof?
1.658 When will the hearing record close?
1.659 What are the requirements for post-hearing briefs?
1.660 What are the requirements for the ALJ's decision?

Alternatives Process

1.670 How must documents be filed and served under Sec. Sec.  1.670 
through 1.673?
1.671 How do I propose an alternative?
1.672 What will the Forest Service do with a proposed alternative?
1.673 How will the Forest Service analyze a proposed alternative and 
formulate its modified conditions?
1.674 Has OMB approved the information collection provisions of 
Sec. Sec.  1.670 through 1.673?

    Authority: 16 U.S.C. 797(e), 811, 823d.

General Provisions


Sec.  1.601  What is the purpose of this subpart, and to what license 
proceedings does it apply?

    (a) Hearing process. (1) The regulations in Sec. Sec.  1.601 
through 1.660 contain rules of practice and procedure applicable to 
hearings on disputed issues of material fact with respect to mandatory 
conditions that the Department of Agriculture, Forest Service (Forest 
Service) may develop for inclusion in a hydropower license issued under 
subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791 et seq. The 
authority to develop these conditions is granted by FPA section 4(e), 
16 U.S.C. 797(e), which authorizes the Secretary of Agriculture to 
condition hydropower licenses issued by the Federal Energy Regulatory 
Commission (FERC).
    (2) The hearing process under this subpart does not apply to 
recommendations that the Forest Service may submit to FERC under FPA 
section 10(a), 16 U.S.C. 803(a).
    (3) The FPA also grants the Department of the Interior the 
authority to develop mandatory conditions and prescriptions, and the 
Department of Commerce the authority to develop mandatory 
prescriptions, for inclusion in a hydropower license. Where the Forest 
Service USDA and either or both of these other Departments develop 
conditions or prescriptions to be included in the same hydropower 
license and where the Departments agree to consolidate the hearings 
under Sec.  1.623:
    (i) A hearing conducted under this subpart will also address 
disputed issues of material fact with respect to any condition or 
prescription developed by one of the other Departments; or
    (ii) A hearing requested under this subpart will be conducted by 
one of the other Departments, pursuant to 43 CFR 45.1 et seq. or 50 CFR 
221.1 et seq., as applicable.
    (4) The regulations in Sec. Sec.  1.601 through 1.660 will be 
construed and applied to each hearing process to achieve a just and 
speedy determination, consistent with adequate consideration of the 
issues involved and the provisions of Sec.  1.660(a).
    (b) Alternatives process. The regulations in Sec. Sec.  1.670 
through 1.673 contain rules of procedure applicable to the submission 
and consideration of alternative conditions under FPA section 33, 16 
U.S.C. 823d. That section allows any party to the license proceeding to 
propose an alternative to a condition deemed necessary by the Forest 
Service under section 4(e).
    (c) Reservation of authority. Where the Forest Service notifies 
FERC that it is reserving its authority to develop one or more 
conditions during the term of the license, the hearing and alternatives 
processes under this subpart for such conditions will be available if 
and when the Forest Service exercises its reserved authority. The 
Forest Service will consult with FERC and notify the license parties 
regarding how to initiate the hearing process and alternatives process 
at that time.
    (d) Applicability. (1) This subpart applies to any hydropower 
license proceeding for which the license has not been issued as of 
November 17, 2005 and for which one or more preliminary conditions or 
conditions have been or are filed with FERC.
    (2) If the Forest Service has already filed one or more preliminary 
conditions or conditions as of November 17, 2005, the special 
applicability provisions of Sec.  1.604 also apply.


Sec.  1.602  What terms are used in this subpart?

    As used in this subpart:
    ALJ means an administrative law judge appointed under 5 U.S.C. 3105 
and assigned to preside over the hearing process under this subpart.
    Alternative means a condition that a license party other than the 
Forest Service or another Department develops as an alternative to a 
preliminary condition from the Forest Service or another Department, 
under FPA sec. 33, 16 U.S.C. 823d.
    Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), 
for the adequate protection and utilization of a reservation.
    Day means a calendar day.
    Department means the Department of Agriculture, Department of 
Commerce, or Department of the Interior.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    Ex parte communication means an oral or written communication to 
the ALJ that is made without providing all parties reasonable notice 
and an opportunity to participate.
    FERC means the Federal Energy Regulatory Commission.
    Forest Service means the USDA Forest Service.
    FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
    Hearing Clerk means the Hearing Clerk, USDA, 1400 Independence 
Ave., SW., Washington, DC 20250; phone: 202-720-4443, facsimile: 202-
720-9776.
    Intervention means a process by which a person who did not request 
a

[[Page 69819]]

hearing under Sec.  1.621 can participate as a party to the hearing 
under Sec.  1.622.
    License party means a party to the license proceeding, as that term 
is defined at 18 CFR 385.102(c).
    License proceeding means a proceeding before FERC for issuance of a 
license for a hydroelectric facility under 18 CFR parts 4 or 5.
    Material fact means a fact that, if proved, may affect a 
Department's decision whether to affirm, modify, or withdraw any 
condition or prescription.
    NEPA document means an environmental assessment or environmental 
impact statement issued to comply with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
    NFS means Deputy Chief, National Forest Systems, Forest Service. 
The service and mailing address under this subpart is NFS, Washington 
Office (WO) Lands Staff, Mail Stop 1124, 1400 Independence Avenue, SW., 
Washington, DC 20250-0003, telephone 202-205-1248, facsimile number 
202-205-1604.
    Office of Administrative Law Judges (OALJ) is the office within 
USDA in which ALJs conduct hearings under the regulations in this 
subpart.
    Party means, with respect to USDA's hearing process:
    (1) A license party that has filed a timely request for a hearing 
under:
    (i) Section 1.621; or
    (ii) Either 43 CFR 45.21 or 50 CFR 221.21, with respect to a 
hearing process consolidated under Sec.  1.623;
    (2) A license party that has filed a timely notice of intervention 
and response under:
    (i) Section 1.622; or
    (ii) Either 43 CFR 45.22 or 50 CFR 221.22, with respect to a 
hearing process consolidated under Sec.  1.623;
    (3) The Forest Service, if it has filed a preliminary condition; 
and
    (4) Any other Department that has filed a preliminary condition or 
prescription, with respect to a hearing process consolidated under 
Sec.  1.623.
    Person means an individual; a partnership, corporation, 
association, or other legal entity; an unincorporated organization; and 
any federal, state, tribal, county, district, territorial, or local 
government or agency.
    Preliminary condition or prescription means a preliminary condition 
or prescription filed by a Department with FERC under 18 CFR 4.34(b), 
4.34(i), or 5.22(a) for potential inclusion in a hydropower license.
    Prescription means a fishway prescribed under FPA sec. 18, 16 
U.S.C. 811, to provide for the safe, timely, and effective passage of 
fish.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec.  1.610.
    Reservation has the same meaning as the term ``reservations'' in 
FPA sec. 3(2), 16 U.S.C. 796(2).
    Secretary means the Secretary of Agriculture or his or her 
designee.
    Senior Department employee has the same meaning as the term 
``senior employee'' in 5 CFR 2637.211(a).
    USDA means the United States Department of Agriculture.
    You refers to a party other than a Department.


Sec.  1.603  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or federal holiday, the 
period is extended to the next business day.
    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
federal holiday that falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a request for a hearing under Sec.  1.621, a notice of 
intervention and response under Sec.  1.622, an answer under Sec.  
1.624, or any document under Sec. Sec.  1.670 through 1.673.
    (2) An extension of time to file any other document under this 
subpart may be granted only upon a showing of good cause.
    (i) To request an extension of time, a party must file a motion 
under Sec.  1.635 stating how much additional time is needed and the 
reasons for the request.
    (ii) The party must file the motion before the applicable time 
period expires, unless the party demonstrates extraordinary 
circumstances that justify a delay in filing.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the decision under Sec.  1.660.


Sec.  1.604  What deadlines apply to pending applications?

    (a) Applicability. (1) This section applies to any case in which 
the Forest Service has filed a preliminary condition or condition with 
FERC before November 17, 2005 and FERC has not issued a license as of 
that date.
    (2) The deadlines in this section will apply in such a case, in 
lieu of any inconsistent deadline in other sections of this subpart.
    (b) Hearing process. (1) Any request for a hearing under Sec.  
1.621 must be filed with NFS by December 19, 2005.
    (2) Any notice of intervention and response under Sec.  1.622 must 
be filed by January 3, 2006.
    (3) Upon receipt of a hearing request under paragraph (b)(1) of 
this section, the Forest Service must do the following by March 17, 
2006:
    (i) Comply with the requirements of Sec.  1.623;
    (ii) Determine jointly with any other Department that has received 
a hearing request, after consultation with FERC, a time frame for the 
hearing process and a corresponding deadline for the Forest Service to 
file an answer under Sec.  1.624; and
    (iii) Issue a notice to each party specifying the time frame for 
the hearing process, including the deadline for the Forest Service to 
file an answer.
    (c) Alternatives process. (1) Any alternative under Sec.  1.671 
must be filed with NFS by December 19, 2005.
    (2) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if no hearing request is filed under paragraph (b)(1) of this 
section, the Forest Service must do the following by February 15, 2006:
    (i) Determine jointly with any other Department that has received a 
related alternative, after consultation with FERC, a time frame for the 
filing of a modified condition under Sec.  1.672(b); and
    (ii) Issue a notice to the license party that has submitted the 
alternative, specifying the time frame for the filing of a modified 
condition.
    (3) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if a hearing request is also filed under paragraph (b)(1) of 
this section, the Forest Service will follow the provisions of 
paragraph (b)(3) of this section.

Hearing Process

Representatives


Sec.  1.610  Who may represent a party, and what requirements apply to 
a representative?

    (a) Individuals. A party who is an individual may either represent 
himself or herself in the hearing process under this subpart or 
authorize an attorney to represent him or her.
    (b) Organizations. A party that is an organization or other entity 
may

[[Page 69820]]

authorize one of the following to represent it:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;
    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (5) An elected or appointed official or an employee, if the entity 
is a federal, state, tribal, county, district, territorial, or local 
government or component.
    (c) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under 
Sec.  1.611;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (3) If the representative is an attorney, include a statement that 
he or she is a member in good standing of the bar of the highest court 
of a state, the District of Columbia, or any territory or commonwealth 
of the United States (identifying which one); and
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (d) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

Document Filing and Service


Sec.  1.611  What are the form and content requirements for documents 
under Sec. Sec.  1.610 through 1.660?

    (a) Form. Each document filed in a case under Sec. Sec.  1.610 
through 1.660 must:
    (1) Measure 8\1/2\ by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8\1/2\ by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 10 point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, 
which may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document filed under Sec. Sec.  1.610 through 
1.660 must begin with a caption that sets forth:
    (1) The name of the case under Sec. Sec.  1.610 through 1.660 and 
the docket number, if one has been assigned;
    (2) The name and docket number of the license proceeding to which 
the case under Sec. Sec.  1.610 through 1.660 relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document filed under Sec. Sec.  
1.610 through 1.660 must be signed by the representative of the person 
for whom the document is filed. The signature constitutes a 
certification by the representative that he or she has read the 
document; that to the best of his or her knowledge, information, and 
belief, the statements made in the document are true; and that the 
document is not being filed for the purpose of causing delay.
    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, 
street address (if different), telephone number, facsimile number (if 
any), and electronic mail address (if any).


Sec.  1.612  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under 
Sec. Sec.  1.610 through 1.660 must be filed with the appropriate 
office, as follows:
    (1) Before NFS refers a case for docketing under Sec.  1.625, any 
documents must be filed with NFS. NFS's address, telephone number, and 
facsimile number are set forth in Sec.  1.602.
    (2) NFS will notify the parties of the date on which it refers a 
case for docketing under Sec.  1.625. After that date, any documents 
must be filed with:
    (i) The Hearing Clerk, if USDA will be conducting the hearing. The 
Hearing Clerk's address, telephone number, and facsimile number are set 
forth in Sec.  1.602; or
    (ii) The hearings component of or used by another Department, if 
that Department will be conducting the hearing under Sec.  1.625. The 
name, address, telephone number, and facsimile number of the 
appropriate hearings component will be provided in the referral notice 
from the Forest Service.
    (b) Method of filing. (1) A document must be filed with the 
appropriate office under paragraph (a) of this section using one of the 
following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission 
was successful; and
    (C) The original of the document is sent by regular mail on the 
same day.
    (2) Parties are encouraged, but not required, to supplement any 
filing by providing the appropriate office with an electronic copy of 
the document on diskette or compact disc.
    (c) Date of filing. A document under Sec. Sec.  1.610 through 1.660 
is considered filed on the date it is received. However, any document 
received after 5 p.m. at the place where the filing is due is 
considered filed on the next regular business day.
    (d) Nonconforming documents. If any document submitted for filing 
under Sec. Sec.  1.610 through 1.660 does not comply with the 
requirements of Sec. Sec.  1.610 through 1.660 or any applicable order, 
it may be rejected. If the defect is minor, the party may be notified 
of the defect and given a chance to correct it.


Sec.  1.613  What are the requirements for service of documents?

    (a) Filed documents. Any document related to a case under 
Sec. Sec.  1.610 through 1.660 must be served at the same time the 
document is delivered or sent for filing. Copies must be served as 
follows:
    (1) A complete copy of any request for a hearing under Sec.  1.621 
must be served on FERC and each license party, using one of the methods 
of service in paragraph (c) of this section.
    (2) A complete copy of any notice of intervention and response 
under Sec.  1.622 must be:
    (i) Served on FERC, the license applicant, any person who has filed 
a request for hearing under Sec.  1.621, and the Forest Service, using 
one of the methods of service in paragraph (c) of this section; and
    (ii) Sent to any other license party using regular mail.
    (3) A complete copy of any other filed document must be served on 
each party, using one of the methods of service in paragraph (c) of 
this section.
    (b) Documents issued by the Hearing Clerk or ALJ. A complete copy 
of any notice, order, decision, or other document issued by the Hearing 
Clerk or the ALJ under Sec. Sec.  1.610 through 1.660 must be served on 
each party, using one of the methods of service in paragraph (c) of 
this section.
    (c) Method of service. Service must be accomplished by one of the 
following methods:
    (1) By hand delivery of the document;

[[Page 69821]]

    (2) By sending the document by express mail or courier service for 
delivery on the next business day;
    (3) By sending the document by facsimile if:
    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day; or
    (4) By sending the document, including all attachments, by 
electronic mail if:
    (i) A copy of the document is sent by regular mail on the same day; 
and
    (ii) The party acknowledges receipt of the document by close of the 
next business day.
    (d) Acknowledgment of service. Any party who receives a document 
under Sec. Sec.  1.610 through 1.660 by electronic mail must promptly 
send a reply electronic mail message acknowledging receipt.
    (e) Certificate of service. A certificate of service must be 
attached to each document filed under Sec. Sec.  1.610 through 1.660. 
The certificate must be signed by the party's representative and 
include the following information:
    (1) The name, address, and other contact information of each 
party's representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (c)(4) of this section, if 
applicable; and
    (3) The date of service.

Initiation of Hearing Process


Sec.  1.620  What supporting information must the Forest Service 
provide with its preliminary conditions?

    (a) Supporting information. (1) When the Forest Service files 
preliminary conditions with FERC, it must include a rationale for the 
conditions and an index to the Forest Service's administrative record 
that identifies all documents relied upon.
    (2) If any of the documents relied upon are not already in the 
license proceeding record, the Forest Service must:
    (i) File them with FERC at the time it files the preliminary 
conditions; and
    (ii) Provide paper or electronic copies to the license applicant.
    (b) Service. In addition to serving a copy of its preliminary 
conditions on each license party, the Forest Service must provide a 
copy to the Hearing Clerk if and when a request for a hearing is filed 
with respect to the preliminary conditions.


Sec.  1.621  How do I request a hearing?

    (a) General. To request a hearing on disputed issues of material 
fact with respect to any condition filed by the Forest Service, you 
must:
    (1) Be a license party; and
    (2) File with NFS a written request for a hearing within 30 days 
after the deadline for the Departments to file preliminary conditions 
with FERC.
    (b) Content. Your hearing request must contain:
    (1) A numbered list of the factual issues that you allege are in 
dispute, each stated in a single, concise sentence; and
    (2) The following information with respect to each issue:
    (i) The specific factual statements made or relied upon by the 
Forest Service under Sec.  1.620(a) that you dispute;
    (ii) The basis for your opinion that those factual statements are 
unfounded or erroneous;
    (iii) The basis for your opinion that any factual dispute is 
material; and
    (iv) With respect to any scientific studies, literature, and other 
documented information supporting your opinions under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the 
information relied upon. If any such document is not already in the 
license proceeding record, you must provide a copy with the request.
    (c) Witnesses and exhibits. Your hearing request must also list the 
witnesses and exhibits that you intend to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(2) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.


Sec.  1.622  How do I file a notice of intervention and response?

    (a) General. (1) To intervene as a party to the hearing process, 
you must:
    (i) Be a license party; and
    (ii) File with NFS a notice of intervention and a written response 
to any request for a hearing within 15 days after the date of service 
of the request for a hearing.
    (2) A license party filing a notice of intervention and response 
may not raise issues of material fact beyond those raised in the 
hearing request.
    (b) Content. In your notice of intervention and response you must 
explain your position with respect to the issues of material fact 
raised in the hearing request under Sec.  1.621(b).
    (1) If you agree with the information provided by the Forest 
Service under Sec.  1.620(a) or by the requester under Sec.  1.621(b), 
your response may refer to the Forest Service's explanation or the 
requester's hearing request for support.
    (2) If you wish to rely on additional information or analysis, your 
response must provide the same level of detail with respect to the 
additional information or analysis as required under Sec.  1.621(b).
    (c) Witnesses and exhibits. Your response and notice must also list 
the witnesses and exhibits that you intend to present at the hearing, 
other than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony; 
and
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b) of this section may not exceed 
two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.


Sec.  1.623  When will hearing requests be consolidated?

    (a) Initial Department coordination. If the Forest Service has 
received a copy of a hearing request, it must contact the other 
Departments within 10 days after the deadline for filing hearing 
requests under Sec.  1.621 and determine:
    (1) Whether any of the other Departments has also filed a 
preliminary condition or prescription relating to the license with 
FERC; and
    (2) If so, whether the other Department has also received a hearing 
request with respect to the preliminary condition or prescription.
    (b) Decision on consolidation. Within 25 days after the deadline 
for filing hearing requests under Sec.  1.621, if the Forest Service 
has received a hearing request, it must:
    (1) Consult with any other Department that has also received a 
hearing request; and
    (2) Decide jointly with the other Department:

[[Page 69822]]

    (i) Whether to consolidate the cases for hearing under paragraphs 
(c)(3)(ii) through (c)(3)(iv) of this section; and
    (ii) If so, which Department will conduct the hearing on their 
behalf.
    (c) Criteria. Cases will or may be consolidated as follows:
    (1) All hearing requests with respect to any conditions from the 
same Department will be consolidated for hearing.
    (2) All hearing requests with respect to any prescriptions from the 
same Department will be consolidated for hearing.
    (3) Any or all of the following may be consolidated for hearing, if 
the Departments involved determine that there are common issues of 
material fact or that consolidation is otherwise appropriate:
    (i) Two or more hearing requests with respect to any condition and 
any prescription from the same Department;
    (ii) Two or more hearing requests with respect to conditions from 
different Departments;
    (iii) Two or more hearing requests with respect to prescriptions 
from different Departments; or
    (iv) Two or more hearing requests with respect to any condition 
from one Department and any prescription from another Department.


Sec.  1.624  How will the Forest Service respond to any hearing 
requests?

    (a) General. Within 45 days after the deadline in Sec.  
1.621(a)(2), the Forest Service may file with the Hearing Clerk an 
answer to any hearing request under Sec.  1.621.
    (b) Content. If the Forest Service files an answer:
    (1) For each of the numbered factual issues listed under Sec.  
1.621(b)(1), the answer must explain the Forest Service's position with 
respect to the issues of material fact raised by the requester, 
including one or more of the following statements as appropriate:
    (i) That the Forest Service is willing to stipulate to the facts as 
alleged by the requester;
    (ii) That the Forest Service believes the issue listed by the 
requester is not a factual issue, explaining the basis for such belief;
    (iii) That the Forest Service believes the issue listed by the 
requester is not material, explaining the basis for such belief; or
    (iv) That the Forest Service agrees that the issue is factual, 
material, and in dispute.
    (2) The answer must also indicate whether the hearing request will 
be consolidated with one or more other hearing requests under Sec.  
1.623 and, if so:
    (i) Identify any other hearing request that will be consolidated 
with this hearing request; and
    (ii) State which Department will conduct the hearing and provide 
contact information for the appropriate Department hearings component.
    (c) Witnesses and exhibits. The Forest Service's answer must also 
list the witnesses and exhibits that it intends to present at the 
hearing, other than solely for impeachment purposes.
    (1) For each witness listed, the Forest Service must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, the Forest Service must specify 
whether it is in the license proceeding record
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(1) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.
    (e) Notice in lieu of answer. If the Forest Service elects not to 
file an answer to a hearing request:
    (1) The Forest Service is deemed to agree that the issues listed by 
the requester are factual, material, and in dispute;
    (2) The Forest Service may file a list of witnesses and exhibits 
with respect to the request only as provided in Sec.  1.642(b); and
    (3) The Forest Service must file a notice containing the 
information required by paragraph (b)(2) of this section, if the 
hearing request will be consolidated with one or more other hearing 
requests under Sec.  1.623.


Sec.  1.625  What will the Forest Service do with any hearing requests?

    (a) Case referral. Within 5 days after receipt of the Forest 
Service's answer, NFS will refer the case for a hearing as follows:
    (1) If the hearing is to be conducted by USDA, NFS will refer the 
case to the OALJ.
    (2) If the hearing is to be conducted by another Department, NFS 
will refer the case to the hearings component used by that Department.
    (b) Content. The case referral will consist of the following:
    (1) A copy of any preliminary condition under Sec.  1.620;
    (2) The original of any hearing request under Sec.  1.621;
    (3) The original of any notice of intervention and response under 
Sec.  1.622;
    (4) The original of any answer under Sec.  1.624; and
    (5) An original referral notice under paragraph (c) of this 
section.
    (c) Notice. At the time NFS refers the case for a hearing, it must 
provide a referral notice that contains the following information:
    (1) The name, address, telephone number, and facsimile number of 
the Department hearings component that will conduct the hearing;
    (2) The name, address, and other contact information for the 
representative of each party to the hearing process;
    (3) An identification of any other hearing request that will be 
consolidated with this hearing request; and
    (4) The date on which NFS is referring the case for docketing.
    (d) Delivery and service. (1) NFS must refer the case to the 
appropriate Department hearings component by one of the methods 
identified in Sec.  1.612(b)(1)(i) and (b)(1)(ii).
    (2) NFS must serve a copy of the referral notice on FERC and each 
party to the hearing by one of the methods identified in Sec.  
1.613(c)(1) and (c)(2).


Sec.  1.626  What regulations apply to a case referred for a hearing?

    (a) If NFS refers the case to OALJ, these regulations will continue 
to apply to the hearing process.
    (b) If NFS refers the case to the Department of the Interior's 
Office of Hearing and Appeals, the regulations at 43 CFR 45.1 et seq. 
will apply from that point.
    (c) If NFS refers the case to the Department of Commerce's 
designated ALJ office, the regulations at 50 CFR 221.1 et seq. will 
apply from that point.

General Provisions Related to Hearings


Sec.  1.630  What will OALJ do with a case referral?

    Within 5 days after issuance of the referral notice under Sec.  
1.625(c), 43 CFR 45.25(c), or 50 CFR 221.25(c):
    (a) The Hearing Clerk must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case; and
    (b) The ALJ must issue a notice setting the time, place, and method 
for conducting an initial prehearing conference under Sec.  1.640. This 
notice may be combined with the docketing notice under paragraph (a)(3) 
of this section.

[[Page 69823]]

Sec.  1.631  What are the powers of the ALJ?

    The ALJ will have all powers necessary to conduct a fair, orderly, 
expeditious, and impartial hearing process, consistent with the 
requirements of Sec.  1.660(a), including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery as provided for in Sec. Sec.  1.641 through 
1.647;
    (e) Hold hearings and conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Issue a decision consistent with Sec.  1.660(b) regarding any 
disputed issues of material fact relating to the Forest Service's or 
other Department's condition or prescription that has been referred to 
the ALJ for hearing; and
    (j) Take any other action authorized by law.


Sec.  1.632  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec.  1.631, the OALJ shall designate a 
successor.
    (b) If a hearing has commenced and the ALJ cannot proceed with it, 
a successor ALJ may do so. At the request of a party, the successor ALJ 
may recall any witness whose testimony is material and disputed, and 
who is available to testify again without undue burden. The successor 
ALJ may, within his or her discretion, recall any other witness.


Sec.  1.633  Under what circumstances may the ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (b) At any time before issuance of the ALJ's decision, any party 
may move that the ALJ disqualify himself or herself for personal bias 
or other valid cause.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (1) If the ALJ concludes that the motion is timely and meritorious, 
he or she must disqualify himself or herself and withdraw from the 
case.
    (2) If the ALJ does not disqualify himself or herself and withdraw 
from the case, the ALJ must continue with the hearing process and issue 
a decision.


Sec.  1.634  What is the law governing ex parte communications?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with 5 U.S.C. 554(d).
    (b) This section does not prohibit ex parte inquiries concerning 
case status or procedural requirements, unless the inquiry involves an 
area of controversy in the hearing process.


Sec.  1.635  What are the requirements for motions?

    (a) General. Any party may apply for an order or ruling on any 
matter related to the hearing process by presenting a motion to the 
ALJ. A motion may be presented any time after the Hearing Clerk issues 
a docketing notice under Sec.  1.630.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be reduced to writing.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of Sec. Sec.  1.610 through 1.613 
with respect to form, content, filing, and service; and
    (iii) Not exceed 10 pages.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and
    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. Except as otherwise required by this subpart or by 
order of the ALJ, any other party may file a response to a written 
motion within 10 days after service of the motion. When a party 
presents a motion at a hearing, any other party may present a response 
orally on the record.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing 
of a motion does not stay the hearing process.
    (f) Ruling. The ALJ will rule on the motion as soon as practicable, 
either orally on the record or in writing. He or she may summarily deny 
any dilatory, repetitive, or frivolous motion.

Prehearing Conferences and Discovery


Sec.  1.640  What are the requirements for prehearing conferences?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec.  1.630, on or about the 20th day after 
issuance of the referral notice under Sec.  1.625(c).
    (1) The initial prehearing conference will be used:
    (i) To identify, narrow, and clarify the disputed issues of 
material fact and exclude issues that do not qualify for review as 
factual, material, and disputed;
    (ii) To consider the parties' motions for discovery under Sec.  
1.641 and to set a deadline for the completion of discovery;
    (iii) To discuss the evidence on which each party intends to rely 
at the hearing;
    (iv) To set the deadline for submission of written testimony under 
Sec.  1.652; and
    (v) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:
    (i) To discuss limiting and grouping witnesses to avoid 
duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss the submission of written testimony, briefs, or 
other documents in electronic form; and
    (v) To consider any other matters that may aid in the disposition 
of the case.
    (b) Other conferences. The ALJ may in his or her discretion direct 
the parties to attend one or more other prehearing conferences, if 
consistent with the need to complete the hearing process within 90 
days. Any party may by motion request a conference.
    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference. A conference will ordinarily be held 
by telephone, unless the ALJ orders otherwise.
    (d) Preparation. (1) Each party's representative must be fully 
prepared for a discussion of all issues properly before the conference, 
both procedural and substantive. The representative must be authorized 
to commit the party that he or she represents respecting those issues.
    (2) Before the date set for the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (i) To meet in person, by telephone, or by other appropriate means; 
and
    (ii) To reach agreement on discovery and the schedule of remaining 
steps in the hearing process.
    (e) Failure to attend. Unless the ALJ orders otherwise, a party 
that fails to attend or participate in a conference, after being served 
with reasonable notice of its time and place, waives all objections to 
any agreements reached in

[[Page 69824]]

the conference and to any consequent orders or rulings.
    (f) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (g) Order. Within 2 days after the conclusion of each conference, 
the ALJ must issue an order that recites any agreements reached at the 
conference and any rulings made by the ALJ during or as a result of the 
conference.


Sec.  1.641  How may parties obtain discovery of information needed for 
the case?

    (a) General. By agreement of the parties or with the permission of 
the ALJ, a party may obtain discovery of information to assist the 
party in preparing or presenting its case. Available methods of 
discovery are:
    (1) Written interrogatories;
    (2) Depositions as provided in paragraph (h) of this section; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other 
purposes.
    (b) Criteria. Discovery may occur only as agreed to by the parties 
or as authorized by the ALJ in a written order or during a prehearing 
conference. The ALJ may authorize discovery only if the party 
requesting discovery demonstrates:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not already in the license proceeding record or otherwise 
obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law;
    (3) That the scope of the discovery is not unduly burdensome;
    (4) That the method to be used is the least burdensome method 
available;
    (5) That any trade secrets or proprietary information can be 
adequately safeguarded; and
    (6) That the standards for discovery under paragraphs (f) through 
(h) of this section have been met, if applicable.
    (c) Motions. A party may initiate discovery:
    (1) Pursuant to an agreement of the parties; or
    (2) By filing a motion that:
    (i) Briefly describes the proposed method(s), purpose, and scope of 
the discovery;
    (ii) Explains how the discovery meets the criteria in paragraphs 
(b)(1) through (b)(6) of this section; and
    (iii) Attaches a copy of any proposed discovery request (written 
interrogatories, notice of deposition, or request for production of 
designated documents or tangible things or for entry on designated 
land).
    (d) Timing of motions. A party must file any discovery motion under 
paragraph (c)(2) of this section within 7 days after issuance of the 
referral notice under Sec.  1.625(c).
    (e) Objections. (1) A party must file any objections to a discovery 
motion or to specific portions of a proposed discovery request within 7 
days after service of the motion.
    (2) An objection must explain how, in the objecting party's view, 
the discovery sought does not meet the criteria in paragraphs (b)(1) 
through (b)(6) of this section.
    (f) Materials prepared for hearing. A party generally may not 
obtain discovery of documents and tangible things otherwise 
discoverable under paragraph (b) of this section if they were prepared 
in anticipation of or for the hearing by or for another party's 
representative (including the party's attorney, expert, or consultant).
    (1) If a party wants to discover such materials, it must show:
    (i) That it has substantial need of the materials in preparing its 
own case; and
    (ii) That the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means.
    (2) In ordering discovery of such materials when the required 
showing has been made, the ALJ must protect against disclosure of the 
mental impressions, conclusions, opinions, or legal theories of an 
attorney.
    (g) Experts. Unless restricted by the ALJ, a party may discover any 
facts known or opinions held by an expert concerning any relevant 
matters that are not privileged. Such discovery will be permitted only 
if:
    (1) The expert is expected to be a witness at the hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at the hearing, and the party shows:
    (i) That it has a compelling need for the information; and
    (ii) That it cannot practicably obtain the information by other 
means.
    (h) Limitations on depositions. (1) A party may depose a witness 
only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, 
or other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by 
subpoena.
    (2) Paragraph (h)(1)(ii) of this section does not apply to any 
person employed by or under contract with the party seeking the 
deposition.
    (3) A party may depose a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her government duties.
    (i) Completion of discovery. All discovery must be completed within 
25 days after the initial prehearing conference, unless the ALJ sets a 
different deadline.


Sec.  1.642  When must a party supplement or amend information it has 
previously provided?

    (a) Discovery. A party must promptly supplement or amend any prior 
response to a discovery request if it learns that the response:
    (1) Was incomplete or incorrect when made; or
    (2) Though complete and correct when made, is now incomplete or 
incorrect in any material respect.
    (b) Witnesses and exhibits. (1) Within 5 days after the date set 
for completion of discovery, each party must file an updated version of 
the list of witnesses and exhibits required under Sec. Sec.  1.621(c), 
1.622(c), or 1.624(c).
    (2) If a party wishes to include any new witness or exhibit on its 
updated list, it must provide an explanation of why it was not feasible 
for the party to include the witness or exhibit on its list under 
Sec. Sec.  1.621(c), 1.622(c), or 1.624(c).
    (c) Failure to disclose. (1) A party that fails to disclose 
information required under Sec. Sec.  1.621(c), 1.622(c), or 1.624(c), 
or paragraphs (a) or (b) of this section, will not be permitted to 
introduce as evidence at the hearing testimony from a witness or other 
information that it failed to disclose.
    (2) Paragraph (c)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object to the 
admission of evidence under paragraph (c)(1) of this section.
    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (c)(1) through (c)(3) of this 
section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;

[[Page 69825]]

    (iii) The extent to which presentation of the evidence would 
disrupt the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.


Sec.  1.643  What are the requirements for written interrogatories?

    (a) Motion. Except upon agreement of the parties, a party wishing 
to propound interrogatories must file a motion under Sec.  1.641(c).
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  1.641(b) with 
respect to any discovery motion requesting the use of written 
interrogatories. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed interrogatories; or
    (2) Deny the motion.
    (c) Answers to interrogatories. Except upon agreement of the 
parties, the party to whom the proposed interrogatories are directed 
must file its answers to any interrogatories approved by the ALJ within 
15 days after issuance of the order under paragraph (b) of this 
section.
    (1) Each approved interrogatory must be answered separately and 
fully in writing.
    (2) The party or its representative must sign the answers to 
interrogatories under oath or affirmation.
    (d) Access to records. A party's answer to an interrogatory is 
sufficient when:
    (1) The information may be obtained from an examination of records, 
or from a compilation, abstract, or summary based on such records;
    (2) The burden of obtaining the information from the records is 
substantially the same for all parties;
    (3) The answering party specifically identifies the individual 
records from which the requesting party may obtain the information and 
where the records are located; and
    (4) The answering party provides the requesting party with 
reasonable opportunity to examine the records and make a copy, 
compilation, abstract, or summary.


Sec.  1.644  What are the requirements for depositions?

    (a) Motion and notice. Except upon agreement of the parties, a 
party wishing to take a deposition must file a motion under Sec.  
1.641(c). Any notice of deposition filed with the motion must state:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition 
is to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  1.641(b) with 
respect to any discovery motion requesting the taking of a deposition. 
The order will:
    (1) Grant the motion and approve the taking of the deposition, 
subject to any conditions or restrictions the ALJ may impose; or
    (2) Deny the motion.
    (c) Arrangements. If the parties agree to or the ALJ approves the 
taking of the deposition, the party requesting the deposition must make 
appropriate arrangements for necessary facilities and personnel.
    (1) The deposition will be taken at the time and place agreed to by 
the parties or indicated in the ALJ's order.
    (2) The deposition may be taken before any disinterested person 
authorized to administer oaths in the place where the deposition is to 
be taken.
    (3) Any party that objects to the taking of a deposition because of 
the disqualification of the person before whom it is to be taken must 
do so:
    (i) Before the deposition begins; or
    (ii) As soon as the disqualification becomes known or could have 
been discovered with reasonable diligence.
    (4) A deposition may be taken by telephone conference call, if 
agreed to by the parties or approved in the ALJ's order.
    (d) Testimony. Each witness deposed must be placed under oath or 
affirmation, and the other parties must be given an opportunity for 
cross-examination.
    (e) Representation of witness. The witness being deposed may have 
counsel or another representative present during the deposition.
    (f) Recording and transcript. Except as provided in paragraph (g) 
of this section, the deposition must be stenographically recorded and 
transcribed at the expense of the party that requested the deposition.
    (1) Any other party may obtain a copy of the transcript at its own 
expense.
    (2) Unless waived by the deponent, the deponent will have 3 days 
after receiving the transcript to read and sign it.
    (3) The person before whom the deposition was taken must certify 
the transcript following receipt of the signed transcript from the 
deponent or expiration of the 3-day review period, whichever occurs 
first.
    (g) Video recording. The testimony at a deposition may be recorded 
on videotape, subject to any conditions or restrictions that the 
parties may agree to or the ALJ may impose, at the expense of the party 
requesting the recording.
    (1) The video recording may be in conjunction with an oral 
examination by telephone conference held under paragraph (c)(3) of this 
section.
    (2) After the deposition has been taken, the person recording the 
deposition must:
    (i) Provide a copy of the videotape to any party that requests it, 
at the requesting party's expense; and
    (ii) Attach to the videotape a statement identifying the case and 
the deponent and certifying the authenticity of the video recording.
    (h) Use of deposition. A deposition may be used at the hearing as 
provided in Sec.  1.653.


Sec.  1.645  What are the requirements for requests for documents or 
tangible things or entry on land?

    (a) Motion. Except upon agreement of the parties, a party wishing 
to request the production of designated documents or tangible things or 
entry on designated land must file a motion under Sec.  1.641(c). A 
request may include any of the following that are in the possession, 
custody, or control of another party:
    (1) The production of designated documents for inspection and 
copying, other than documents that are already in the license 
proceeding record;
    (2) The production of designated tangible things for inspection, 
copying, testing, or sampling; or
    (3) Entry on designated land or other property for inspection and 
measuring, surveying, photographing, testing, or sampling either the 
property or any designated object or operation on the property.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  1.641(b) with 
respect to any discovery motion requesting the production of documents 
or tangible things or entry on land for inspection, copying, or other 
purposes. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed requests; or
    (2) Deny the motion.
    (c) Compliance with order. Except upon agreement of the parties, 
the party to whom any approved request for production is directed must 
permit the approved inspection and other activities within 15 days 
after issuance of the

[[Page 69826]]

order under paragraph (a) of this section.


Sec.  1.646  What sanctions may the ALJ impose for failure to comply 
with discovery?

    (a) Upon motion of a party, the ALJ may impose sanctions under 
paragraph (b) of this section if any party:
    (1) Fails to comply with an order approving discovery; or
    (2) Fails to supplement or amend a response to discovery under 
Sec.  1.642(a).
    (b) The ALJ may impose one or more of the following sanctions:
    (1) Infer that the information, testimony, document, or other 
evidence withheld would have been adverse to the party;
    (2) Order that, for the purposes of the hearing, designated facts 
are established;
    (3) Order that the party not introduce into evidence, or otherwise 
rely on to support its case, any information, testimony, document, or 
other evidence:
    (i) That the party improperly withheld; or
    (ii) That the party obtained from another party in discovery;
    (4) Allow another party to use secondary evidence to show what the 
information, testimony, document, or other evidence withheld would have 
shown; or
    (5) Take other appropriate action to remedy the party's failure to 
comply.


Sec.  1.647  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (1) Except as provided in paragraph 
(a)(2) of this section, any party may file a motion requesting the ALJ 
to issue a subpoena to the extent authorized by law for the attendance 
of a person, the giving of testimony, or the production of documents or 
other relevant evidence during discovery or for the hearing.
    (2) A party may subpoena a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the employee's attendance would not significantly 
interfere with the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not 
a party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth:
    (A) The date, time, and manner of service; or
    (B) The reason for any failure of service; and
    (ii) Swear to or affirm the certificate, attach it to a copy of the 
subpoena, and return it to the party on whose behalf the subpoena was 
served.
    (c) Witness fees. (1) A party who subpoenas a witness who is not a 
party must pay him or her the same fees and mileage expenses that are 
paid witnesses in the district courts of the United States.
    (2) A witness who is not a party and who attends a deposition or 
hearing at the request of any party without having been subpoenaed to 
do so is entitled to the same fees and mileage expenses as if he or she 
had been subpoenaed. However, this paragraph does not apply to federal 
employees who are called as witnesses by the Forest Service or another 
Department.
    (d) Motion to quash. (1) A person to whom a subpoena is directed 
may request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for 
compliance, if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:
    (i) Is unreasonable;
    (ii) Requires evidence during discovery that is not discoverable; 
or
    (iii) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. For good cause shown, the ALJ may apply to the 
appropriate United States District Court for the issuance of an order 
compelling the appearance and testimony of a witness or the production 
of evidence as set forth in a subpoena that has been duly issued and 
served.

Hearing, Briefing, and Decision


Sec.  1.650  When and where will the hearing be held?

    (a) Except as provided in paragraph (b) of this section, the 
hearing will be held at the time and place set at the initial 
prehearing conference under Sec.  1.640, generally within 15 days after 
the date set for completion of discovery.
    (b) On motion by a party or on the ALJ's initiative, the ALJ may 
change the date, time, or place of the hearing if he or she finds:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.


Sec.  1.651  What are the parties' rights during the hearing?

    Consistent with the provisions of this subpart, each party has the 
following rights during the hearing, as necessary to assure full and 
accurate disclosure of the facts:
    (a) To present direct and rebuttal evidence;
    (b) To make objections, motions, and arguments; and
    (c) To cross-examine witnesses and to conduct re-direct and re-
cross examination as permitted by the ALJ.


Sec.  1.652  What are the requirements for presenting testimony?

    (a) Written direct testimony. Unless otherwise ordered by the ALJ, 
all direct hearing testimony must be prepared and submitted in written 
form.
    (1) Prepared written testimony must:
    (i) Have line numbers inserted in the left-hand margin of each 
page;
    (ii) Be authenticated by an affidavit or declaration of the 
witness;
    (iii) Be filed within 5 days after the date set for completion of 
discovery, unless the ALJ sets a different deadline; and
    (iv) Be offered as an exhibit during the hearing.
    (2) Any witness submitting written testimony must be available for 
cross-examination at the hearing.
    (b) Oral testimony. Oral examination of a witness in a hearing, 
including on cross-examination or redirect, must be conducted under 
oath and in the presence of the ALJ, with an opportunity for all 
parties to question the witness.
    (c) Telephonic testimony. The ALJ may by order allow a witness to 
testify by telephonic conference call.
    (1) The arrangements for the call must let each party listen to and 
speak to the witness and each other within the hearing of the ALJ.
    (2) The ALJ will ensure the full identification of each speaker so 
the reporter can create a proper record.
    (3) The ALJ may issue a subpoena under Sec.  1.647 directing a 
witness to testify by telephonic conference call.


Sec.  1.653  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use in the hearing any part or all of a deposition taken under 
Sec.  1.644 against any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.

[[Page 69827]]

    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the ALJ.
    (2) The ALJ will exclude from evidence any question and response to 
which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (i) An adverse party may require the party to introduce any other 
part that ought in fairness to be considered with the part introduced; 
and
    (ii) Any other party may introduce any other parts.
    (c) Videotaped deposition. If the deposition was recorded on 
videotape and is admitted into evidence, relevant portions will be 
played during the hearing and transcribed into the record by the 
reporter.


Sec.  1.654  What are the requirements for exhibits, official notice, 
and stipulations?

    (a) General. (1) Except as provided in paragraphs (b) through (e) 
of this section, any material offered in evidence, other than oral 
testimony, must be offered in the form of an exhibit.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:
    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent practicable; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (2) The ALJ must give the other parties an opportunity to inspect 
the entire document and offer in evidence any other portions of the 
document.
    (c) Official notice. (1) At the request of any party at the 
hearing, the ALJ may take official notice of any matter of which the 
courts of the United States may take judicial notice, including the 
public records of any Department party.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (3) Any party requesting official notice of a fact after the 
conclusion of the hearing must show good cause for its failure to 
request official notice during the hearing.
    (d) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is 
binding on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.


Sec.  1.655  What evidence is admissible at the hearing?

    (a) General. (1) Subject to the provisions of Sec.  1.642(b), the 
ALJ may admit any written, oral, documentary, or demonstrative evidence 
that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (2) The ALJ may exclude evidence if its probative value is 
substantially outweighed by the risk of undue prejudice, confusion of 
the issues, or delay.
    (3) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (4) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the ALJ and the parties in 
interpreting and applying the provisions of this section.
    (b) Objections. Any party objecting to the admission or exclusion 
of evidence shall concisely state the grounds. A ruling on every 
objection must appear in the record.


Sec.  1.656  What are the requirements for transcription of the 
hearing?

    (a) Transcript and reporter's fees. The hearing will be transcribed 
verbatim.
    (1) The Forest Service will secure the services of a reporter and 
pay the reporter's fees to provide an original transcript to the Forest 
Service on an expedited basis.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript Corrections. (1) Any party may file a motion 
proposing corrections to the transcript. The motion must be filed 
within 5 days after receipt of the transcript, unless the ALJ sets a 
different deadline.
    (2) Unless a party files a timely motion under paragraph (b)(1) of 
this section, the transcript will be presumed to be correct and 
complete, except for obvious typographical errors.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any motions filed under paragraph (b)(1) of this 
section, the ALJ will issue an order making any corrections to the 
transcript that the ALJ finds are warranted.


Sec.  1.657  What is the standard of proof?

    The standard of proof is a preponderance of the evidence.


Sec.  1.658  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Evidence may not be added after the hearing record is closed, 
but the transcript may be corrected under Sec.  1.656 (b).


Sec.  1.659  What are the requirements for post-hearing briefs?

    (a) General. (1) Each party may file a post-hearing brief within 10 
days after the close of the hearing, unless the ALJ sets a different 
deadline.
    (2) A party may file a reply brief only if requested by the ALJ. 
The deadline for filing a reply brief, if any, will be set by the ALJ.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted in evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 20 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with 
page references.


Sec.  1.660  What are the requirements for the ALJ's decision?

    (a) Timing. The ALJ must issue a decision within the shorter of the 
following time periods:
    (1) 30 days after the close of the hearing under Sec.  1.658; or

[[Page 69828]]

    (2) 90 days after issuance of the referral notice under Sec.  
1.625(c), 43 CFR 45.25(c), or 50 CFR 221.25(c).
    (b) Content. (1) The decision must contain:
    (i) Findings of fact on all disputed issues of material fact;
    (ii) Conclusions of law necessary to make the findings of fact 
(such as rulings on materiality and on the admissibility of evidence); 
and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one 
or more of the parties.
    (3) The decision will not contain conclusions as to whether any 
preliminary condition or prescription should be adopted, modified, or 
rejected, or whether any proposed alternative should be adopted or 
rejected.
    (c) Service. Promptly after issuing his or her decision, the ALJ 
must:
    (1) Serve the decision on each party to the hearing; and
    (2) Forward a copy of the decision to FERC, along with the complete 
hearing record, for inclusion in the license proceeding record.
    (d) Finality. The ALJ's decision under this section will be final, 
with respect to the disputed issues of material fact, for any 
Department involved in the hearing. To the extent the ALJ's decision 
forms the basis for any condition or prescription subsequently included 
in the license, it may be subject to judicial review under 16 U.S.C. 
825l(b).

Alternatives Process


Sec.  1.670  How must documents be filed and served under Sec. Sec.  
1.670 through 1.673?

    (a) Filing. (1) For the alternatives process, documents must be 
filed using one of the methods set forth in Sec.  1.612(b).
    (2) A document is considered filed on the date it is received. 
However, any document received after 5 p.m. at the place where the 
filing is due is considered filed on the next regular business day.
    (b) Service. (1) Any document filed under this section must be 
served at the same time the document is delivered or sent for filing. A 
complete copy of the document must be served on each license party and 
FERC, using:
    (i) One of the methods of service in Sec.  1.613(c); or
    (ii) Regular mail.
    (2) The provisions of Sec.  1.613 (d) and (e) regarding 
acknowledgment and certificate of service apply to service under this 
section.


Sec.  1.671  How do I propose an alternative?

    (a) General. To propose an alternative, you must:
    (1) Be a license party; and
    (2) File a written proposal with NFS within 30 days after the 
deadline for the Forest Service to file preliminary conditions with 
FERC.
    (b) Content. Your proposal must include:
    (1) A description of the alternative, in an equivalent level of 
detail to the Forest Service's preliminary condition;
    (2) An explanation of how the alternative will provide for the 
adequate protection and utilization of the reservation;
    (3) An explanation of how the alternative, as compared to the 
preliminary condition, will:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production;
    (4) An explanation of how the alternative will affect:
    (i) Energy supply, distribution, cost, and use;
    (ii) Flood control;
    (iii) Navigation;
    (iv) Water supply;
    (v) Air quality; and
    (vi) Other aspects of environmental quality; and
    (5) Specific citations to any scientific studies, literature, and 
other documented information relied on to support your proposal, 
including any assumptions you are making (e.g., regarding the cost of 
energy or the rate of inflation). If any such document is not already 
in the license proceeding record, you must provide a copy with the 
proposal.


Sec.  1.672  What will the Forest Service do with a proposed 
alternative?

    If any license party proposes an alternative to a preliminary 
condition under Sec.  1.671(a)(1), the Forest Service must do the 
following within 60 days after the deadline for filing comments to 
FERC's NEPA document under 18 CFR 5.25(c):
    (a) Analyze the alternative under Sec.  1.673; and
    (b) File with FERC:
    (1) Any condition that the Forest Service adopts as its modified 
condition; and
    (2) Its analysis of the modified condition and any proposed 
alternatives under Sec.  1.673(c).


Sec.  1.673  How will the Forest Service analyze a proposed alternative 
and formulate its modified condition?

    (a) In deciding whether to adopt a proposed alternative, the Forest 
Service must consider evidence and supporting material provided by any 
license party or otherwise available to the Forest Service, including:
    (1) Any evidence on the implementation costs or operational impacts 
for electricity production of the proposed alternative;
    (2) Any comments received on the Forest Service's preliminary 
condition;
    (3) Any ALJ decision on disputed issues of material fact issued 
under Sec.  1.660 with respect to the preliminary condition;
    (4) Comments received on any draft or final NEPA documents; and
    (5) The license party's proposal under Sec.  1.671.
    (b) The Forest Service must adopt a proposed alternative if the 
Forest Service determines, based on substantial evidence provided by 
any license party or otherwise available to the Forest Service, that 
the alternative:
    (1) Will, as compared to the Forest Service's preliminary 
condition:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production; and
    (2) Will provide for the adequate protection and utilization of the 
reservation.
    (c) When the Forest Service files with FERC the condition that the 
Forest Service adopts as its modified condition under Sec. Sec.  
1.672(b), it must also file:
    (1) A written statement explaining:
    (i) The basis for the adopted condition; and
    (ii) If the Forest Service is not adopting any alternative, its 
reasons for not doing so; and
    (2) Any study, data, and other factual information relied on that 
is not already part of the licensing proceeding record.
    (d) The written statement under paragraph (c)(1) of this section 
must demonstrate that the Forest Service gave equal consideration to 
the effects of the condition adopted and any alternative not adopted 
on:
    (1) Energy supply, distribution, cost, and use;
    (2) Flood control;
    (3) Navigation;
    (4) Water supply;
    (5) Air quality; and
    (6) Preservation of other aspects of environmental quality.


Sec.  1.674  Has OMB approved the information collection provisions of 
Sec. Sec.  1.670 through 1.673?

    Yes. This rule contains provisions that would collect information 
from the public. It therefore requires approval by the Office of 
Management and Budget

[[Page 69829]]

(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
(PRA). According to the PRA, a Federal agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number 
that indicates OMB approval. OMB has reviewed the information 
collection in this rule and approved it under OMB control number 1094-
0001.

Department of the Interior

43 CFR Subtitle A

0
2. The Department of the Interior adds part 45, title 43, to read as 
follows:

PART 45--CONDITIONS AND PRESCRIPTIONS IN FERC HYDROPOWER LICENSES

Subpart A--General Provisions
Sec.
45.1 What is the purpose of this part, and to what license 
proceedings does it apply?
45.2 What terms are used in this part?
45.3 How are time periods computed?
45.4 What deadlines apply to pending applications?
Subpart B--Hearing Process

Representatives

45.10 Who may represent a party, and what requirements apply to a 
representative?

Document Filing and Service

45.11 What are the form and content requirements for documents under 
this subpart?
45.12 Where and how must documents be filed?
45.13 What are the requirements for service of documents?

Initiation of Hearing Process

45.20 What supporting information must a bureau provide with its 
preliminary conditions or prescriptions?
45.21 How do I request a hearing?
45.22 How do I file a notice of intervention and response?
45.23 When will hearing requests be consolidated?
45.24 How will the bureau respond to any hearing requests?
45.25 What will DOI do with any hearing requests?
45.26 What regulations apply to a case referred for a hearing?

General Provisions Related to Hearings

45.30 What will the Hearings Division do with a case referral?
45.31 What are the powers of the ALJ?
45.32 What happens if the ALJ becomes unavailable?
45.33 Under what circumstances may the ALJ be disqualified?
45.34 What is the law governing ex parte communications?
45.35 What are the requirements for motions?

Prehearing Conferences and Discovery

45.40 What are the requirements for prehearing conferences?
45.41 How may parties obtain discovery of information needed for the 
case?
45.42 When must a party supplement or amend information it has 
previously provided?
45.43 What are the requirements for written interrogatories?
45.44 What are the requirements for depositions?
45.45 What are the requirements for requests for documents or 
tangible things or entry on land?
45.46 What sanctions may the ALJ impose for failure to comply with 
discovery?
45.47 What are the requirements for subpoenas and witness fees?

Hearing, Briefing, and Decision

45.50 When and where will the hearing be held?
45.51 What are the parties' rights during the hearing?
45.52 What are the requirements for presenting testimony?
45.53 How may a party use a deposition in the hearing?
45.54 What are the requirements for exhibits, official notice, and 
stipulations?
45.55 What evidence is admissible at the hearing?
45.56 What are the requirements for transcription of the hearing?
45.57 What is the standard of proof?
45.58 When will the hearing record close?
45.59 What are the requirements for post-hearing briefs?
45.60 What are the requirements for the ALJ's decision?
Subpart C--Alternatives Process
45.70 How must documents be filed and served under this subpart?
45.71 How do I propose an alternative?
45.72 What will the bureau do with a proposed alternative?
45.73 How will the bureau analyze a proposed alternative and 
formulate its modified condition or prescription?
45.74 Has OMB approved the information collection provisions of this 
subpart?

    Authority: 16 U.S.C. 797(e), 811, 823d.

Subpart A--General Provisions


Sec.  45.1  What is the purpose of this part, and to what license 
proceedings does it apply?

    (a) Hearing process. (1) The regulations in subparts A and B of 
this part contain rules of practice and procedure applicable to 
hearings on disputed issues of material fact with respect to mandatory 
conditions and prescriptions that the Department of the Interior (DOI) 
may develop for inclusion in a hydropower license issued under 
subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791 et seq. The 
authority to develop these conditions and prescriptions is granted by 
FPA sections 4(e) and 18, 16 U.S.C. 797(e) and 811, which authorize the 
Secretary of the Interior to condition hydropower licenses issued by 
the Federal Energy Regulatory Commission (FERC) and to prescribe 
fishways.
    (2) The hearing process under this part does not apply to 
recommendations that DOI may submit to FERC under FPA section 10(a) or 
(j), 16 U.S.C. 803(a), (j).
    (3) The FPA also grants the Department of Agriculture the authority 
to develop mandatory conditions, and the Department of Commerce the 
authority to develop mandatory prescriptions, for inclusion in a 
hydropower license. Where DOI and either or both of these other 
Departments develop conditions or prescriptions to be included in the 
same hydropower license and where the Departments agree to consolidate 
the hearings under Sec.  45.23:
    (i) A hearing conducted under this part will also address disputed 
issues of material fact with respect to any condition or prescription 
developed by one of the other Departments; or
    (ii) A hearing requested under this part will be conducted by one 
of the other Departments, pursuant to 7 CFR 1.601 et seq. or 50 CFR 
221.1 et seq., as applicable.
    (4) The regulations in subparts A and B of this part will be 
construed and applied to each hearing process to achieve a just and 
speedy determination, consistent with adequate consideration of the 
issues involved and the provisions of Sec.  45.60(a).
    (b) Alternatives process. The regulations in subparts A and C of 
this part contain rules of procedure applicable to the submission and 
consideration of alternative conditions and prescriptions under FPA 
section 33, 16 U.S.C. 823d. That section allows any party to the 
license proceeding to propose an alternative to a condition deemed 
necessary by DOI under section 4(e) or a fishway prescribed by DOI 
under section 18.
    (c) Reservation of authority. Where DOI notifies FERC that it is 
reserving its authority to develop one or more conditions or 
prescriptions during the term of the license, the hearing and 
alternatives processes under this part for such conditions or 
prescriptions will be available if and when DOI exercises its reserved 
authority. DOI will consult with FERC and notify the license parties 
regarding how to initiate the hearing process and alternatives process 
at that time.
    (d) Applicability. (1) This part applies to any hydropower license 
proceeding for which the license has not been issued as of November 17, 
2005 and for which one or more preliminary

[[Page 69830]]

conditions, conditions, preliminary prescriptions, or prescriptions 
have been or are filed with FERC.
    (2) If DOI has already filed one or more preliminary conditions, 
conditions, preliminary prescriptions, or prescriptions as of November 
17, 2005, the special applicability provisions of Sec.  45.4 also 
apply.


Sec.  45.2  What terms are used in this part?

    As used in this part:
    ALJ means an administrative law judge appointed under 5 U.S.C. 3105 
and assigned to preside over the hearing process under subpart B of 
this part.
    Alternative means a condition or prescription that a license party 
other than a bureau or Department develops as an alternative to a 
preliminary condition or prescription from a bureau or Department, 
under FPA sec. 33, 16 U.S.C. 823d.
    Bureau means any of the following organizations within DOI that 
develops a preliminary condition or prescription: the Bureau of Indian 
Affairs, Bureau of Land Management, Bureau of Reclamation, Fish and 
Wildlife Service, or National Park Service.
    Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), 
for the adequate protection and utilization of a reservation.
    Day means a calendar day.
    Department means the Department of Agriculture, Department of 
Commerce, or Department of the Interior.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    DOI means the Department of the Interior, including any bureau, 
unit, or office of the Department, whether in Washington, DC, or in the 
field.
    Ex parte communication means an oral or written communication to 
the ALJ that is made without providing all parties reasonable notice 
and an opportunity to participate.
    FERC means the Federal Energy Regulatory Commission.
    FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
    Hearings Division means the Departmental Cases Hearings Division, 
Office of Hearings and Appeals, Department of the Interior, 139 E. 
South Temple, Suite 600, Salt Lake City, Utah 84111, telephone 801-524-
5344, facsimile number 801-524-5539.
    Intervention means a process by which a person who did not request 
a hearing under Sec.  45.21 can participate as a party to the hearing 
under Sec.  45.22.
    License party means a party to the license proceeding, as that term 
is defined at 18 CFR 385.102(c).
    License proceeding means a proceeding before FERC for issuance of a 
license for a hydroelectric facility under 18 CFR parts 4 or 5.
    Material fact means a fact that, if proved, may affect a 
Department's decision whether to affirm, modify, or withdraw any 
condition or prescription.
    NEPA document means an environmental assessment or environmental 
impact statement issued to comply with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
    OEPC means the Office of Environmental Policy and Compliance, 
Department of the Interior, 1849 C Street, NW., Mail Stop 2342, 
Washington, DC 20240, telephone 202-208-3891, facsimile number 202-208-
6970.
    Party means, with respect to DOI's hearing process under subpart B 
of this part:
    (1) A license party that has filed a timely request for a hearing 
under:
    (i) Section 45.21; or
    (ii) Either 7 CFR 1.621 or 50 CFR 221.21, with respect to a hearing 
process consolidated under Sec.  45.23;
    (2) A license party that has filed a timely notice of intervention 
and response under:
    (i) Section 45.22; or
    (ii) Either 7 CFR 1.622 or 50 CFR 221.22, with respect to a hearing 
process consolidated under Sec.  45.23;
    (3) Any bureau that has filed a preliminary condition or 
prescription; and
    (4) Any other Department that has filed a preliminary condition or 
prescription, with respect to a hearing process consolidated under 
Sec.  45.23.
    Person means an individual; a partnership, corporation, 
association, or other legal entity; an unincorporated organization; and 
any federal, state, tribal, county, district, territorial, or local 
government or agency.
    Preliminary condition or prescription means a preliminary condition 
or prescription filed by a Department with FERC under 18 CFR 4.34(b), 
4.34(i), or 5.22(a) for potential inclusion in a hydropower license.
    Prescription means a fishway prescribed under FPA sec. 18, 16 
U.S.C. 811, to provide for the safe, timely, and effective passage of 
fish.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec.  45.10.
    Reservation has the same meaning as the term ``reservations'' in 
FPA sec. 3(2), 16 U.S.C. 796(2).
    Secretary means the Secretary of the Interior or his or her 
designee.
    Senior Department employee has the same meaning as the term 
``senior employee'' in 5 CFR 2637.211(a).
    You refers to a party other than a Department.


Sec.  45.3  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or federal holiday, the 
period is extended to the next business day.
    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
federal holiday that falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a request for a hearing under Sec.  45.21, a notice of 
intervention and response under Sec.  45.22, an answer under Sec.  
45.24, or any document under subpart C of this part.
    (2) An extension of time to file any other document under subpart B 
of this part may be granted only upon a showing of good cause.
    (i) To request an extension of time, a party must file a motion 
under Sec.  45.35 stating how much additional time is needed and the 
reasons for the request.
    (ii) The party must file the motion before the applicable time 
period expires, unless the party demonstrates extraordinary 
circumstances that justify a delay in filing.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the decision under Sec.  45.60.


Sec.  45.4  What deadlines apply to pending applications?

    (a) Applicability. (1) This section applies to any case in which a 
bureau has filed a preliminary condition, condition, preliminary 
prescription, or prescription with FERC before November 17, 2005 and 
FERC has not issued a license as of that date.
    (2) The deadlines in this section will apply in such a case, in 
lieu of any inconsistent deadline in other sections of this part.
    (b) Hearing process. (1) Any request for a hearing under Sec.  
45.21 must be filed with OEPC by December 19, 2005.

[[Page 69831]]

    (2) Any notice of intervention and response under Sec.  45.22 must 
be filed by January 3, 2006.
    (3) Upon receipt of a hearing request under paragraph (b)(1) of 
this section, the bureau must do the following by March 17, 2006:
    (i) Comply with the requirements of Sec.  45.23;
    (ii) Determine jointly with any other bureau or Department that has 
received a hearing request, after consultation with FERC, a time frame 
for the hearing process and a corresponding deadline for the bureau to 
file an answer under Sec.  45.24; and
    (iii) Issue a notice to each party specifying the time frame for 
the hearing process, including the deadline for the bureau to file an 
answer.
    (c) Alternatives process. (1) Any alternative under Sec.  45.71 
must be filed with OEPC by December 19, 2005.
    (2) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if no hearing request is filed under paragraph (b)(1) of this 
section, the bureau must do the following by February 15, 2006:
    (i) Determine jointly with any other bureau or Department that has 
received a related alternative, after consultation with FERC, a time 
frame for the filing of a modified condition or prescription under 
Sec.  45.72(b); and
    (ii) Issue a notice to the license party that has submitted the 
alternative, specifying the time frame for the filing of a modified 
condition or prescription.
    (3) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if a hearing request is also filed under paragraph (b)(1) of 
this section, the bureau will follow the provisions of paragraph (b)(3) 
of this section.

Subpart B--Hearing Process

Representatives


Sec.  45.10  Who may represent a party, and what requirements apply to 
a representative?

    (a) Individuals. A party who is an individual may either represent 
himself or herself in the hearing process under this subpart or 
authorize an attorney to represent him or her.
    (b) Organizations. A party that is an organization or other entity 
may authorize one of the following to represent it:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;
    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (5) An elected or appointed official or an employee, if the entity 
is a federal, state, tribal, county, district, territorial, or local 
government or component.
    (c) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under 
Sec.  45.11;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (3) If the representative is an attorney, include a statement that 
he or she is a member in good standing of the bar of the highest court 
of a state, the District of Columbia, or any territory or commonwealth 
of the United States (identifying which one); and
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (d) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

Document Filing and Service


Sec.  45.11  What are the form and content requirements for documents 
under this subpart?

    (a) Form. Each document filed in a case under this subpart must:
    (1) Measure 8\1/2\ by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8\1/2\ by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 10 point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, 
which may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document filed under this subpart must begin with 
a caption that sets forth:
    (1) The name of the case under this subpart and the docket number, 
if one has been assigned;
    (2) The name and docket number of the license proceeding to which 
the case under this subpart relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document filed under this 
subpart must be signed by the representative of the person for whom the 
document is filed. The signature constitutes a certification by the 
representative that he or she has read the document; that to the best 
of his or her knowledge, information, and belief, the statements made 
in the document are true; and that the document is not being filed for 
the purpose of causing delay.
    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, 
street address (if different), telephone number, facsimile number (if 
any), and electronic mail address (if any).


Sec.  45.12  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under this 
subpart must be filed with the appropriate office, as follows:
    (1) Before OEPC refers a case for docketing under Sec.  45.25, any 
documents must be filed with OEPC. OEPC's address, telephone number, 
and facsimile number are set forth in Sec.  45.2.
    (2) OEPC will notify the parties of the date on which it refers a 
case for docketing under Sec.  45.25. After that date, any documents 
must be filed with:
    (i) The Hearings Division, if DOI will be conducting the hearing. 
The Hearings Division's address, telephone number, and facsimile number 
are set forth in Sec.  45.2; or
    (ii) The hearings component of or used by another Department, if 
that Department will be conducting the hearing under Sec.  45.25. The 
name, address, telephone number, and facsimile number of the 
appropriate hearings component will be provided in the referral notice 
from OEPC.
    (b) Method of filing. (1) A document must be filed with the 
appropriate office under paragraph (a) of this section using one of the 
following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission 
was successful; and
    (C) The original of the document is sent by regular mail on the 
same day.
    (2) Parties are encouraged, but not required, to supplement any 
filing by providing the appropriate office with an

[[Page 69832]]

electronic copy of the document on diskette or compact disc.
    (c) Date of filing. A document under this subpart is considered 
filed on the date it is received. However, any document received after 
5 p.m. at the place where the filing is due is considered filed on the 
next regular business day.
    (d) Nonconforming documents. If any document submitted for filing 
under this subpart does not comply with the requirements of this 
subpart or any applicable order, it may be rejected. If the defect is 
minor, the party may be notified of the defect and given a chance to 
correct it.


Sec.  45.13  What are the requirements for service of documents?

    (a) Filed documents. Any document related to a case under this 
subpart must be served at the same time the document is delivered or 
sent for filing. Copies must be served as follows:
    (1) A complete copy of any request for a hearing under Sec.  45.21 
must be served on FERC and each license party, using one of the methods 
of service in paragraph (c) of this section.
    (2) A complete copy of any notice of intervention and response 
under Sec.  45.22 must be:
    (i) Served on FERC, the license applicant, any person who has filed 
a request for hearing under Sec.  45.21, and any bureau, using one of 
the methods of service in paragraph (c) of this section; and
    (ii) Sent to any other license party using regular mail.
    (3) A complete copy of any other filed document must be served on 
each party, using one of the methods of service in paragraph (c) of 
this section.
    (b) Documents issued by the Hearings Division or ALJ. A complete 
copy of any notice, order, decision, or other document issued by the 
Hearings Division or the ALJ under this subpart must be served on each 
party, using one of the methods of service in paragraph (c) of this 
section.
    (c) Method of service. Service must be accomplished by one of the 
following methods:
    (1) By hand delivery of the document;
    (2) By sending the document by express mail or courier service for 
delivery on the next business day; or
    (3) By sending the document by facsimile if:
    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day.
    (d) Certificate of service. A certificate of service must be 
attached to each document filed under this subpart. The certificate 
must be signed by the party's representative and include the following 
information:
    (1) The name, address, and other contact information of each 
party's representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (c)(4) of this section, if 
applicable; and
    (3) The date of service.

Initiation of Hearing Process


Sec.  45.20  What supporting information must a bureau provide with its 
preliminary conditions or prescriptions?

    (a) Supporting information. (1) When any bureau files a preliminary 
condition or prescription with FERC, it must include a rationale for 
the condition or prescription and an index to the bureau's 
administrative record that identifies all documents relied upon.
    (2) If any of the documents relied upon are not already in the 
license proceeding record, the bureau must:
    (i) File them with FERC at the time it files the preliminary 
condition or prescription;
    (ii) Provide copies to the license applicant; and
    (iii) In the case of a condition developed by the Bureau of Indian 
Affairs, provide copies to the affected tribe.
    (b) Service. In addition to serving a copy of its preliminary 
condition or prescription on each license party, the bureau must 
provide a copy to OEPC if and when a request for a hearing is filed 
with respect to the preliminary condition or prescription.


Sec.  45.21  How do I request a hearing?

    (a) General. To request a hearing on disputed issues of material 
fact with respect to any condition or prescription filed by a bureau, 
you must:
    (1) Be a license party; and
    (2) File with OEPC a written request for a hearing within 30 days 
after the deadline for the Departments to file preliminary conditions 
or prescriptions with FERC.
    (b) Content. Your hearing request must contain:
    (1) A numbered list of the factual issues that you allege are in 
dispute, each stated in a single, concise sentence; and
    (2) The following information with respect to each issue:
    (i) The specific factual statements made or relied upon by the 
bureau under Sec.  45.20(a) that you dispute;
    (ii) The basis for your opinion that those factual statements are 
unfounded or erroneous;
    (iii) The basis for your opinion that any factual dispute is 
material; and
    (iv) With respect to any scientific studies, literature, and other 
documented information supporting your opinions under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the 
information relied upon. If any such document is not already in the 
license proceeding record, you must provide a copy with the request.
    (c) Witnesses and exhibits. Your hearing request must also list the 
witnesses and exhibits that you intend to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(2) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.


Sec.  45.22  How do I file a notice of intervention and response?

    (a) General. (1) To intervene as a party to the hearing process, 
you must:
    (i) Be a license party; and
    (ii) File with OEPC a notice of intervention and a written response 
to any request for a hearing within 15 days after the date of service 
of the request for a hearing.
    (2) A license party filing a notice of intervention and response 
may not raise issues of material fact beyond those raised in the 
hearing request.
    (b) Content. In your notice of intervention and response you must 
explain your position with respect to the issues of material fact 
raised in the hearing request under Sec.  45.21(b).
    (1) If you agree with the information provided by the bureau under 
Sec.  45.20(a) or by the requester under Sec.  45.21(b), your response 
may refer to the bureau's explanation or the requester's hearing 
request for support.
    (2) If you wish to rely on additional information or analysis, your 
response must provide the same level of detail with respect to the 
additional information or analysis as required under Sec.  45.21(b).

[[Page 69833]]

    (c) Witnesses and exhibits. Your response and notice must also list 
the witnesses and exhibits that you intend to present at the hearing, 
other than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony; 
and
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b) of this section may not exceed 
two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.


Sec.  45.23  When will hearing requests be consolidated?

    (a) Initial Department coordination. Any bureau that has received a 
copy of a hearing request must contact the other bureaus and 
Departments within 10 days after the deadline for filing hearing 
requests under Sec.  45.21 and determine:
    (1) Whether any of the other bureaus or Departments has also filed 
a preliminary condition or prescription relating to the license with 
FERC; and
    (2) If so, whether the other bureau or Department has also received 
a hearing request with respect to the preliminary condition or 
prescription.
    (b) Decision on consolidation. Within 25 days after the deadline 
for filing hearing requests under Sec.  45.21, any bureau or Department 
that has received a hearing request must:
    (1) Consult with any other bureau or Department that has also 
received a hearing request; and
    (2) Decide jointly with the other bureau or Department:
    (i) Whether to consolidate the cases for hearing under paragraphs 
(c)(3)(ii) through (c)(3)(iv) of this section; and
    (ii) If so, which Department will conduct the hearing on their 
behalf.
    (c) Criteria. Cases will or may be consolidated as follows:
    (1) All hearing requests with respect to any conditions from the 
same Department will be consolidated for hearing.
    (2) All hearing requests with respect to any prescriptions from the 
same Department will be consolidated for hearing.
    (3) Any or all of the following may be consolidated for hearing, if 
the bureaus and Departments involved determine that there are common 
issues of material fact or that consolidation is otherwise appropriate:
    (i) Two or more hearing requests with respect to any condition and 
any prescription from the same Department;
    (ii) Two or more hearing requests with respect to conditions from 
different Departments;
    (iii) Two or more hearing requests with respect to prescriptions 
from different Departments; or
    (iv) Two or more hearing requests with respect to any condition 
from one Department and any prescription from another Department.


Sec.  45.24  How will the bureau respond to any hearing requests?

    (a) General. Within 45 days after the deadline in Sec.  
45.21(a)(2), the bureau may file with OEPC an answer to any hearing 
request under Sec.  45.21.
    (b) Content. If the bureau files an answer:
    (1) For each of the numbered factual issues listed under Sec.  
45.21(b)(1), the answer must explain the bureau's position with respect 
to the issues of material fact raised by the requester, including one 
or more of the following statements as appropriate:
    (i) That the bureau is willing to stipulate to the facts as alleged 
by the requester;
    (ii) That the bureau believes the issue listed by the requester is 
not a factual issue, explaining the basis for such belief;
    (iii) That the bureau believes the issue listed by the requester is 
not material, explaining the basis for such belief; or
    (iv) That the bureau agrees that the issue is factual, material, 
and in dispute.
    (2) The answer must also indicate whether the hearing request will 
be consolidated with one or more other hearing requests under Sec.  
45.23 and, if so:
    (i) Identify any other hearing request that will be consolidated 
with this hearing request; and
    (ii) State which Department will conduct the hearing and provide 
contact information for the appropriate Department hearings component.
    (c) Witnesses and exhibits. The bureau's answer must also list the 
witnesses and exhibits that it intends to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, the bureau must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, the bureau must specify whether it is 
in the license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(1) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.
    (e) Notice in lieu of answer. If the bureau elects not to file an 
answer to a hearing request:
    (1) The bureau is deemed to agree that the issues listed by the 
requester are factual, material, and in dispute;
    (2) The bureau may file a list of witnesses and exhibits with 
respect to the request only as provided in Sec.  45.42(b); and
    (3) The bureau must file a notice containing the information 
required by paragraph (b)(2) of this section, if the hearing request 
will be consolidated with one or more other hearing requests under 
Sec.  45.23.


Sec.  45.25  What will DOI do with any hearing requests?

    (a) Case referral. Within 5 days after receipt of the bureau's 
answer, OEPC will refer the case for a hearing as follows:
    (1) If the hearing is to be conducted by DOI, OEPC will refer the 
case to the Hearings Division.
    (2) If the hearing is to be conducted by another Department, OEPC 
will refer the case to the hearings component used by that Department.
    (b) Content. The case referral will consist of the following:
    (1) A copy of any preliminary condition or prescription under Sec.  
45.20;
    (2) The original of any hearing request under Sec.  45.21;
    (3) The original of any notice of intervention and response under 
Sec.  45.22;
    (4) The original of any answer under Sec.  45.24; and
    (5) An original referral notice under paragraph (c) of this 
section.
    (c) Notice. At the time OEPC refers the case for a hearing, it must 
provide a referral notice that contains the following information:
    (1) The name, address, telephone number, and facsimile number of 
the Department hearings component that will conduct the hearing;
    (2) The name, address, and other contact information for the 
representative of each party to the hearing process;
    (3) An identification of any other hearing request that will be 
consolidated with this hearing request; and
    (4) The date on which OEPC is referring the case for docketing.
    (d) Delivery and service. (1) OEPC must refer the case to the 
appropriate Department hearings component by one

[[Page 69834]]

of the methods identified in Sec.  45.12(b)(1)(i) and (b)(1)(ii).
    (2) OEPC must serve a copy of the referral notice on FERC and each 
party to the hearing by one of the methods identified in Sec.  
45.13(c)(1) and (c)(2).


Sec.  45.26  What regulations apply to a case referred for a hearing?

    (a) If OEPC refers the case to the Hearings Division, the 
regulations in this subpart will continue to apply to the hearing 
process.
    (b) If OEPC refers the case to the United States Department of 
Agriculture's Office of Administrative Law Judges, the regulations at 7 
CFR 1.601 et seq. will apply from that point on.
    (c) If OEPC refers the case to the Department of Commerce's 
designated ALJ office, the regulations at 50 CFR 221.1 et seq. will 
apply from that point on.

General Provisions Related to Hearings


Sec.  45.30  What will the Hearings Division do with a case referral?

    Within 5 days after issuance of the referral notice under Sec.  
45.25(c), 7 CFR 1.625(c), or 50 CFR 221.25(c):
    (a) The Hearings Division must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case; and
    (b) The ALJ must issue a notice setting the time, place, and method 
for conducting an initial prehearing conference under Sec.  45.40. This 
notice may be combined with the docketing notice under paragraph (a)(3) 
of this section.


Sec.  45.31  What are the powers of the ALJ?

    The ALJ will have all powers necessary to conduct a fair, orderly, 
expeditious, and impartial hearing process, consistent with the 
requirements of Sec.  45.60(a), including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery as provided for in this subpart;
    (e) Hold hearings and conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Issue a decision consistent with Sec.  45.60(b) regarding any 
disputed issues of material fact relating to any bureau's or other 
Department's condition or prescription that has been referred to the 
ALJ for hearing; and
    (j) Take any other action authorized by law.


Sec.  45.32  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec.  45.31, the Hearings Division shall 
designate a successor.
    (b) If a hearing has commenced and the ALJ cannot proceed with it, 
a successor ALJ may do so. At the request of a party, the successor ALJ 
may recall any witness whose testimony is material and disputed, and 
who is available to testify again without undue burden. The successor 
ALJ may, within his or her discretion, recall any other witness.


Sec.  45.33  Under what circumstances may the ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (b) At any time before issuance of the ALJ's decision, any party 
may move that the ALJ disqualify himself or herself for personal bias 
or other valid cause.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (1) If the ALJ concludes that the motion is timely and meritorious, 
he or she must disqualify himself or herself and withdraw from the 
case.
    (2) If the ALJ does not disqualify himself or herself and withdraw 
from the case, the ALJ must continue with the hearing process and issue 
a decision.


Sec.  45.34  What is the law governing ex parte communications?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with 5 U.S.C. 554(d).
    (b) This section does not prohibit ex parte inquiries concerning 
case status or procedural requirements, unless the inquiry involves an 
area of controversy in the hearing process.


Sec.  45.35  What are the requirements for motions?

    (a) General. Any party may apply for an order or ruling on any 
matter related to the hearing process by presenting a motion to the 
ALJ. A motion may be presented any time after the Hearings Division 
issues a docketing notice under Sec.  45.30.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be reduced to writing.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of this subpart with respect to 
form, content, filing, and service; and
    (iii) Not exceed 10 pages.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and
    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. Except as otherwise required by this part or by order 
of the ALJ, any other party may file a response to a written motion 
within 10 days after service of the motion. When a party presents a 
motion at a hearing, any other party may present a response orally on 
the record.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing 
of a motion does not stay the hearing process.
    (f) Ruling. The ALJ will rule on the motion as soon as practicable, 
either orally on the record or in writing. He or she may summarily deny 
any dilatory, repetitive, or frivolous motion.

Prehearing Conferences and Discovery


Sec.  45.40  What are the requirements for prehearing conferences?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec.  45.30, on or about the 20th day after 
issuance of the referral notice under Sec.  45.25(c).
    (1) The initial prehearing conference will be used:
    (i) To identify, narrow, and clarify the disputed issues of 
material fact and exclude issues that do not qualify for review as 
factual, material, and disputed;
    (ii) To consider the parties' motions for discovery under Sec.  
45.41 and to set a deadline for the completion of discovery;
    (iii) To discuss the evidence on which each party intends to rely 
at the hearing;
    (iv) To set the deadline for submission of written testimony under 
Sec.  45.52; and
    (v) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:

[[Page 69835]]

    (i) To discuss limiting and grouping witnesses to avoid 
duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss the submission of written testimony, briefs, or 
other documents in electronic form; and
    (v) To consider any other matters that may aid in the disposition 
of the case.
    (b) Other conferences. The ALJ may in his or her discretion direct 
the parties to attend one or more other prehearing conferences, if 
consistent with the need to complete the hearing process within 90 
days. Any party may by motion request a conference.
    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference. A conference will ordinarily be held 
by telephone, unless the ALJ orders otherwise.
    (d) Preparation. (1) Each party's representative must be fully 
prepared for a discussion of all issues properly before the conference, 
both procedural and substantive. The representative must be authorized 
to commit the party that he or she represents respecting those issues.
    (2) Before the date set for the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (i) To meet in person, by telephone, or by other appropriate means; 
and
    (ii) To reach agreement on discovery and the schedule of remaining 
steps in the hearing process.
    (e) Failure to attend. Unless the ALJ orders otherwise, a party 
that fails to attend or participate in a conference, after being served 
with reasonable notice of its time and place, waives all objections to 
any agreements reached in the conference and to any consequent orders 
or rulings.
    (f) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (g) Order. Within 2 days after the conclusion of each conference, 
the ALJ must issue an order that recites any agreements reached at the 
conference and any rulings made by the ALJ during or as a result of the 
conference.


Sec.  45.41  How may parties obtain discovery of information needed for 
the case?

    (a) General. By agreement of the parties or with the permission of 
the ALJ, a party may obtain discovery of information to assist the 
party in preparing or presenting its case. Available methods of 
discovery are:
    (1) Written interrogatories;
    (2) Depositions as provided in paragraph (h) of this section; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other 
purposes.
    (b) Criteria. Discovery may occur only as agreed to by the parties 
or as authorized by the ALJ in a written order or during a prehearing 
conference. The ALJ may authorize discovery only if the party 
requesting discovery demonstrates:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not already in the license proceeding record or otherwise 
obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law;
    (3) That the scope of the discovery is not unduly burdensome;
    (4) That the method to be used is the least burdensome method 
available;
    (5) That any trade secrets or proprietary information can be 
adequately safeguarded; and
    (6) That the standards for discovery under paragraphs (f) through 
(h) of this section have been met, if applicable.
    (c) Motions. A party may initiate discovery:
    (1) Pursuant to an agreement of the parties; or
    (2) By filing a motion that:
    (i) Briefly describes the proposed method(s), purpose, and scope of 
the discovery;
    (ii) Explains how the discovery meets the criteria in paragraphs 
(b)(1) through (b)(6) of this section; and
    (iii) Attaches a copy of any proposed discovery request (written 
interrogatories, notice of deposition, or request for production of 
designated documents or tangible things or for entry on designated 
land).
    (d) Timing of motions. A party must file any discovery motion under 
paragraph (c)(2) of this section within 7 days after issuance of the 
referral notice under Sec.  45.25(c).
    (e) Objections. (1) A party must file any objections to a discovery 
motion or to specific portions of a proposed discovery request within 7 
days after service of the motion.
    (2) An objection must explain how, in the objecting party's view, 
the discovery sought does not meet the criteria in paragraphs (b)(1) 
through (b)(6) of this section.
    (f) Materials prepared for hearing. A party generally may not 
obtain discovery of documents and tangible things otherwise 
discoverable under paragraph (b) of this section if they were prepared 
in anticipation of or for the hearing by or for another party's 
representative (including the party's attorney, expert, or consultant).
    (1) If a party wants to discover such materials, it must show:
    (i) That it has substantial need of the materials in preparing its 
own case; and
    (ii) That the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means.
    (2) In ordering discovery of such materials when the required 
showing has been made, the ALJ must protect against disclosure of the 
mental impressions, conclusions, opinions, or legal theories of an 
attorney.
    (g) Experts. Unless restricted by the ALJ, a party may discover any 
facts known or opinions held by an expert concerning any relevant 
matters that are not privileged. Such discovery will be permitted only 
if:
    (1) The expert is expected to be a witness at the hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at the hearing, and the party shows:
    (i) That it has a compelling need for the information; and
    (ii) That it cannot practicably obtain the information by other 
means.
    (h) Limitations on depositions. (1) A party may depose a witness 
only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, 
or other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by 
subpoena.
    (2) Paragraph (h)(1)(ii) of this section does not apply to any 
person employed by or under contract with the party seeking the 
deposition.
    (3) A party may depose a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her government duties.
    (i) Completion of discovery. All discovery must be completed within 
25 days after the initial prehearing conference, unless the ALJ sets a 
different deadline.

[[Page 69836]]

Sec.  45.42  When must a party supplement or amend information it has 
previously provided?

    (a) Discovery. A party must promptly supplement or amend any prior 
response to a discovery request if it learns that the response:
    (1) Was incomplete or incorrect when made; or
    (2) Though complete and correct when made, is now incomplete or 
incorrect in any material respect.
    (b) Witnesses and exhibits. (1) Within 5 days after the date set 
for completion of discovery, each party must file an updated version of 
the list of witnesses and exhibits required under Sec. Sec.  45.21(c), 
45.22(c), or 45.24(c).
    (2) If a party wishes to include any new witness or exhibit on its 
updated list, it must provide an explanation of why it was not feasible 
for the party to include the witness or exhibit on its list under 
Sec. Sec.  45.21(c), 45.22(c), or 45.24(c).
    (c) Failure to disclose. (1) A party that fails to disclose 
information required under Sec. Sec.  45.21(c), 45.22(c), or 45.24(c), 
or paragraphs (a) or (b) of this section, will not be permitted to 
introduce as evidence at the hearing testimony from a witness or other 
information that it failed to disclosed.
    (2) Paragraph (c)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object to the 
admission of evidence under paragraph (c)(1) of this section.
    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (c)(1) through (c)(3) of this 
section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;
    (iii) The extent to which presentation of the evidence would 
disrupt the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.


Sec.  45.43  What are the requirements for written interrogatories?

    (a) Motion. Except upon agreement of the parties, a party wishing 
to propound interrogatories must file a motion under Sec.  45.41(c).
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  45.41(b) with 
respect to any discovery motion requesting the use of written 
interrogatories. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed interrogatories; or
    (2) Deny the motion.
    (c) Answers to interrogatories. Except upon agreement of the 
parties, the party to whom the proposed interrogatories are directed 
must file its answers to any interrogatories approved by the ALJ within 
15 days after issuance of the order under paragraph (b) of this 
section.
    (1) Each approved interrogatory must be answered separately and 
fully in writing.
    (2) The party or its representative must sign the answers to 
interrogatories under oath or affirmation.
    (d) Access to records. A party's answer to an interrogatory is 
sufficient when:
    (1) The information may be obtained from an examination of records, 
or from a compilation, abstract, or summary based on such records;
    (2) The burden of obtaining the information from the records is 
substantially the same for all parties;
    (3) The answering party specifically identifies the individual 
records from which the requesting party may obtain the information and 
where the records are located; and
    (4) The answering party provides the requesting party with 
reasonable opportunity to examine the records and make a copy, 
compilation, abstract, or summary.


Sec.  45.44  What are the requirements for depositions?

    (a) Motion and notice. Except upon agreement of the parties, a 
party wishing to take a deposition must file a motion under Sec.  
45.41(c). Any notice of deposition filed with the motion must state:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition 
is to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  45.41(b) with 
respect to any discovery motion requesting the taking of a deposition. 
The order will:
    (1) Grant the motion and approve the taking of the deposition, 
subject to any conditions or restrictions the ALJ may impose; or
    (2) Deny the motion.
    (c) Arrangements. If the parties agree to or the ALJ approves the 
taking of the deposition, the party requesting the deposition must make 
appropriate arrangements for necessary facilities and personnel.
    (1) The deposition will be taken at the time and place agreed to by 
the parties or indicated in the ALJ's order.
    (2) The deposition may be taken before any disinterested person 
authorized to administer oaths in the place where the deposition is to 
be taken.
    (3) Any party that objects to the taking of a deposition because of 
the disqualification of the person before whom it is to be taken must 
do so:
    (i) Before the deposition begins; or
    (ii) As soon as the disqualification becomes known or could have 
been discovered with reasonable diligence.
    (4) A deposition may be taken by telephone conference call, if 
agreed to by the parties or approved in the ALJ's order.
    (d) Testimony. Each witness deposed must be placed under oath or 
affirmation, and the other parties must be given an opportunity for 
cross-examination.
    (e) Representation of witness. The witness being deposed may have 
counsel or another representative present during the deposition.
    (f) Recording and transcript. Except as provided in paragraph (g) 
of this section, the deposition must be stenographically recorded and 
transcribed at the expense of the party that requested the deposition.
    (1) Any other party may obtain a copy of the transcript at its own 
expense.
    (2) Unless waived by the deponent, the deponent will have 3 days 
after receiving the transcript to read and sign it.
    (3) The person before whom the deposition was taken must certify 
the transcript following receipt of the signed transcript from the 
deponent or expiration of the 3-day review period, whichever occurs 
first.
    (g) Video recording. The testimony at a deposition may be recorded 
on videotape, subject to any conditions or restrictions that the 
parties may agree to or the ALJ may impose, at the expense of the party 
requesting the recording.
    (1) The video recording may be in conjunction with an oral 
examination by telephone conference held under paragraph (c)(3) of this 
section.
    (2) After the deposition has been taken, the person recording the 
deposition must:
    (i) Provide a copy of the videotape to any party that requests it, 
at the requesting party's expense; and
    (ii) Attach to the videotape a statement identifying the case and 
the

[[Page 69837]]

deponent and certifying the authenticity of the video recording.
    (h) Use of deposition. A deposition may be used at the hearing as 
provided in Sec.  45.53.


Sec.  45.45  What are the requirements for requests for documents or 
tangible things or entry on land?

    (a) Motion. Except upon agreement of the parties, a party wishing 
to request the production of designated documents or tangible things or 
entry on designated land must file a motion under Sec.  45.41(c). A 
request may include any of the following that are in the possession, 
custody, or control of another party:
    (1) The production of designated documents for inspection and 
copying, other than documents that are already in the license 
proceeding record;
    (2) The production of designated tangible things for inspection, 
copying, testing, or sampling; or
    (3) Entry on designated land or other property for inspection and 
measuring, surveying, photographing, testing, or sampling either the 
property or any designated object or operation on the property.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  45.41(b) with 
respect to any discovery motion requesting the production of documents 
or tangible things or entry on land for inspection, copying, or other 
purposes. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed requests; or
    (2) Deny the motion.
    (c) Compliance with order. Except upon agreement of the parties, 
the party to whom any approved request for production is directed must 
permit the approved inspection and other activities within 15 days 
after issuance of the order under paragraph (a) of this section.


Sec.  45.46  What sanctions may the ALJ impose for failure to comply 
with discovery?

    (a) Upon motion of a party, the ALJ may impose sanctions under 
paragraph (b) of this section if any party:
    (1) Fails to comply with an order approving discovery; or
    (2) Fails to supplement or amend a response to discovery under 
Sec.  45.42(a).
    (b) The ALJ may impose one or more of the following sanctions:
    (1) Infer that the information, testimony, document, or other 
evidence withheld would have been adverse to the party;
    (2) Order that, for the purposes of the hearing, designated facts 
are established;
    (3) Order that the party not introduce into evidence, or otherwise 
rely on to support its case, any information, testimony, document, or 
other evidence:
    (i) That the party improperly withheld; or
    (ii) That the party obtained from another party in discovery;
    (4) Allow another party to use secondary evidence to show what the 
information, testimony, document, or other evidence withheld would have 
shown; or
    (5) Take other appropriate action to remedy the party's failure to 
comply.


Sec.  45.47  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (1) Except as provided in paragraph 
(a)(2) of this section, any party may file a motion requesting the ALJ 
to issue a subpoena to the extent authorized by law for the attendance 
of a person, the giving of testimony, or the production of documents or 
other relevant evidence during discovery or for the hearing.
    (2) A party may subpoena a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the employee's attendance would not significantly 
interfere with the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not 
a party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth:
    (A) The date, time, and manner of service; or
    (B) The reason for any failure of service; and
    (ii) Swear to or affirm the certificate, attach it to a copy of the 
subpoena, and return it to the party on whose behalf the subpoena was 
served.
    (c) Witness fees. (1) A party who subpoenas a witness who is not a 
party must pay him or her the same fees and mileage expenses that are 
paid witnesses in the district courts of the United States.
    (2) A witness who is not a party and who attends a deposition or 
hearing at the request of any party without having been subpoenaed to 
do so is entitled to the same fees and mileage expenses as if he or she 
had been subpoenaed. However, this paragraph does not apply to federal 
employees who are called as witnesses by a bureau or other Department.
    (d) Motion to quash. (1) A person to whom a subpoena is directed 
may request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for 
compliance, if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:
    (i) Is unreasonable;
    (ii) Requires evidence during discovery that is not discoverable; 
or
    (iii) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. For good cause shown, the ALJ may apply to the 
appropriate United States District Court for the issuance of an order 
compelling the appearance and testimony of a witness or the production 
of evidence as set forth in a subpoena that has been duly issued and 
served.

Hearing, Briefing, and Decision


Sec.  45.50  When and where will the hearing be held?

    (a) Except as provided in paragraph (b) of this section, the 
hearing will be held at the time and place set at the initial 
prehearing conference under Sec.  45.40, generally within 15 days after 
the date set for completion of discovery.
    (b) On motion by a party or on the ALJ's initiative, the ALJ may 
change the date, time, or place of the hearing if he or she finds:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.


Sec.  45.51  What are the parties' rights during the hearing?

    Consistent with the provisions of this subpart, each party has the 
following rights during the hearing, as necessary to assure full and 
accurate disclosure of the facts:
    (a) To present direct and rebuttal evidence;
    (b) To make objections, motions, and arguments; and
    (c) To cross-examine witnesses and to conduct re-direct and re-
cross examination as permitted by the ALJ.


Sec.  45.52  What are the requirements for presenting testimony?

    (a) Written direct testimony. Unless otherwise ordered by the ALJ, 
all direct

[[Page 69838]]

hearing testimony must be prepared and submitted in written form.
    (1) Prepared written testimony must:
    (i) Have line numbers inserted in the left-hand margin of each 
page;
    (ii) Be authenticated by an affidavit or declaration of the 
witness;
    (iii) Be filed within 5 days after the date set for completion of 
discovery, unless the ALJ sets a different deadline; and
    (iv) Be offered as an exhibit during the hearing.
    (2) Any witness submitting written testimony must be available for 
cross-examination at the hearing.
    (b) Oral testimony. Oral examination of a witness in a hearing, 
including on cross-examination or redirect, must be conducted under 
oath and in the presence of the ALJ, with an opportunity for all 
parties to question the witness.
    (c) Telephonic testimony. The ALJ may by order allow a witness to 
testify by telephonic conference call.
    (1) The arrangements for the call must let each party listen to and 
speak to the witness and each other within the hearing of the ALJ.
    (2) The ALJ will ensure the full identification of each speaker so 
the reporter can create a proper record.
    (3) The ALJ may issue a subpoena under Sec.  45.47 directing a 
witness to testify by telephonic conference call.


Sec.  45.53  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use in the hearing any part or all of a deposition taken under 
Sec.  45.44 against any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.
    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the ALJ.
    (2) The ALJ will exclude from evidence any question and response to 
which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (i) An adverse party may require the party to introduce any other 
part that ought in fairness to be considered with the part introduced; 
and
    (ii) Any other party may introduce any other parts.
    (c) Videotaped deposition. If the deposition was recorded on 
videotape and is admitted into evidence, relevant portions will be 
played during the hearing and transcribed into the record by the 
reporter.


Sec.  45.54  What are the requirements for exhibits, official notice, 
and stipulations?

    (a) General. (1) Except as provided in paragraphs (b) through (e) 
of this section, any material offered in evidence, other than oral 
testimony, must be offered in the form of an exhibit.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:
    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent practicable; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (2) The ALJ must give the other parties an opportunity to inspect 
the entire document and offer in evidence any other portions of the 
document.
    (c) Official notice. (1) At the request of any party at the 
hearing, the ALJ may take official notice of any matter of which the 
courts of the United States may take judicial notice, including the 
public records of any Department party.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (3) Any party requesting official notice of a fact after the 
conclusion of the hearing must show good cause for its failure to 
request official notice during the hearing.
    (d) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is 
binding on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.


Sec.  45.55  What evidence is admissible at the hearing?

    (a) General. (1) Subject to the provisions of Sec.  45.42(b), the 
ALJ may admit any written, oral, documentary, or demonstrative evidence 
that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (2) The ALJ may exclude evidence if its probative value is 
substantially outweighed by the risk of undue prejudice, confusion of 
the issues, or delay.
    (3) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (4) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the ALJ and the parties in 
interpreting and applying the provisions of this section.
    (b) Objections. Any party objecting to the admission or exclusion 
of evidence shall concisely state the grounds. A ruling on every 
objection must appear in the record.


Sec.  45.56  What are the requirements for transcription of the 
hearing?

    (a) Transcript and reporter's fees. The hearing will be transcribed 
verbatim.
    (1) The Hearings Division will secure the services of a reporter 
and pay the reporter's fees to provide an original transcript to the 
Hearings Division on an expedited basis.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript Corrections. (1) Any party may file a motion 
proposing corrections to the transcript. The motion must be filed 
within 5 days after receipt of the transcript, unless the ALJ sets a 
different deadline.
    (2) Unless a party files a timely motion under paragraph (b)(1) of 
this section, the transcript will be presumed to be correct and 
complete, except for obvious typographical errors.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any motions filed under paragraph (b)(1) of this 
section, the ALJ will issue an order making any corrections to the 
transcript that the ALJ finds are warranted.


Sec.  45.57  What is the standard of proof?

    The standard of proof is a preponderance of the evidence.


Sec.  45.58  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Evidence may not be added after the hearing record is closed, 
but the transcript may be corrected under Sec.  45.56(b).

[[Page 69839]]

Sec.  45.59  What are the requirements for post-hearing briefs?

    (a) General. (1) Each party may file a post-hearing brief within 10 
days after the close of the hearing, unless the ALJ sets a different 
deadline.
    (2) A party may file a reply brief only if requested by the ALJ. 
The deadline for filing a reply brief, if any, will be set by the ALJ.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted in evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 20 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with 
page references.


Sec.  45.60  What are the requirements for the ALJ's decision?

    (a) Timing. The ALJ must issue a decision within the shorter of the 
following time periods:
    (1) 30 days after the close of the hearing under Sec.  45.58; or
    (2) 90 days after issuance of the referral notice under Sec.  
45.25(c), 7 CFR 1.625(c), or 50 CFR 221.25(c).
    (b) Content. (1) The decision must contain:
    (i) Findings of fact on all disputed issues of material fact;
    (ii) Conclusions of law necessary to make the findings of fact 
(such as rulings on materiality and on the admissibility of evidence); 
and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one 
or more of the parties.
    (3) The decision will not contain conclusions as to whether any 
preliminary condition or prescription should be adopted, modified, or 
rejected, or whether any proposed alternative should be adopted or 
rejected.
    (c) Service. Promptly after issuing his or her decision, the ALJ 
must:
    (1) Serve the decision on each party to the hearing; and
    (2) Forward a copy of the decision to FERC, along with the complete 
hearing record, for inclusion in the license proceeding record.
    (d) Finality. The ALJ's decision under this section will be final, 
with respect to the disputed issues of material fact, for any 
Department involved in the hearing. To the extent the ALJ's decision 
forms the basis for any condition or prescription subsequently included 
in the license, it may be subject to judicial review under 16 U.S.C. 
825l(b).

Subpart C--Alternatives Process


Sec.  45.70  How must documents be filed and served under this subpart?

    (a) Filing. (1) A document under this subpart must be filed using 
one of the methods set forth in Sec.  45.12(b).
    (2) A document is considered filed on the date it is received. 
However, any document received after 5 p.m. at the place where the 
filing is due is considered filed on the next regular business day.
    (b) Service. (1) Any document filed under this subpart must be 
served at the same time the document is delivered or sent for filing. A 
complete copy of the document must be served on each license party and 
FERC, using:
    (i) One of the methods of service in Sec.  45.13(c); or
    (ii) Regular mail.
    (2) The provisions of Sec.  45.13(d) and (e) regarding 
acknowledgment and certificate of service apply to service under this 
subpart.


Sec.  45.71  How do I propose an alternative?

    (a) General. To propose an alternative, you must:
    (1) Be a license party; and
    (2) File a written proposal with OEPC within 30 days after the 
deadline for the bureau to file preliminary conditions or prescriptions 
with FERC.
    (b) Content. Your proposal must include:
    (1) A description of the alternative, in an equivalent level of 
detail to the bureau's preliminary condition or prescription;
    (2) An explanation of how the alternative:
    (i) If a condition, will provide for the adequate protection and 
utilization of the reservation; or
    (ii) If a prescription, will be no less protective than the fishway 
prescribed by the bureau;
    (3) An explanation of how the alternative, as compared to the 
preliminary condition or prescription, will:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production;
    (4) An explanation of how the alternative will affect:
    (i) Energy supply, distribution, cost, and use;
    (ii) Flood control;
    (iii) Navigation;
    (iv) Water supply;
    (v) Air quality; and
    (vi) Other aspects of environmental quality; and
    (5) Specific citations to any scientific studies, literature, and 
other documented information relied on to support your proposal, 
including any assumptions you are making (e.g., regarding the cost of 
energy or the rate of inflation). If any such document is not already 
in the license proceeding record, you must provide a copy with the 
proposal.


Sec.  45.72  What will the bureau do with a proposed alternative?

    If any license party proposes an alternative to a preliminary 
condition or prescription under Sec.  45.71(a)(1), the bureau must do 
the following within 60 days after the deadline for filing comments to 
FERC's NEPA document under 18 CFR 5.25(c):
    (a) Analyze the alternative under Sec.  45.73; and
    (b) File with FERC:
    (1) Any condition or prescription that the bureau adopts as its 
modified condition or prescription; and
    (2) Its analysis of the modified condition or prescription and any 
proposed alternatives under Sec.  45.73(c).


Sec.  45.73  How will the bureau analyze a proposed alternative and 
formulate its modified condition or prescription?

    (a) In deciding whether to adopt a proposed alternative, the bureau 
must consider evidence and supporting material provided by any license 
party or otherwise available to the bureau, including:
    (1) Any evidence on the implementation costs or operational impacts 
for electricity production of the proposed alternative;
    (2) Any comments received on the bureau's preliminary condition or 
prescription;
    (3) Any ALJ decision on disputed issues of material fact issued 
under Sec.  45.60 with respect to the preliminary condition or 
prescription;

[[Page 69840]]

    (4) Comments received on any draft or final NEPA documents; and
    (5) The license party's proposal under Sec.  45.71.
    (b) The bureau must adopt a proposed alternative if the bureau 
determines, based on substantial evidence provided by any license party 
or otherwise available to the bureau, that the alternative:
    (1) Will, as compared to the bureau's preliminary condition or 
prescription:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production; and
    (2) Will:
    (i) If a condition, provide for the adequate protection and 
utilization of the reservation; or
    (ii) If a prescription, be no less protective than the bureau's 
preliminary prescription.
    (c) When the bureau files with FERC the condition or prescription 
that the bureau adopts as its modified condition or prescription under 
Sec. Sec.  45.72(b), it must also file:
    (1) A written statement explaining:
    (i) The basis for the adopted condition or prescription; and
    (ii) If the bureau is not adopting any alternative, its reasons for 
not doing so; and
    (2) Any study, data, and other factual information relied on that 
is not already part of the licensing proceeding record.
    (d) The written statement under paragraph (c)(1) of this section 
must demonstrate that the bureau gave equal consideration to the 
effects of the condition or prescription adopted and any alternative 
not adopted on:
    (1) Energy supply, distribution, cost, and use;
    (2) Flood control;
    (3) Navigation;
    (4) Water supply;
    (5) Air quality; and
    (6) Preservation of other aspects of environmental quality.


Sec.  45.74  Has OMB approved the information collection provisions of 
this subpart?

    Yes. This rule contains provisions that would collect information 
from the public. It therefore requires approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501 et seq. (PRA). According to the PRA, a Federal agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number that indicates OMB approval. OMB has reviewed the 
information collection in this rule and approved it under OMB control 
number 1094-0001.

Department of Commerce

50 CFR Chapter II

0
3. The Department of Commerce adds part 221, title 50, to read as 
follows:

PART 221--PRESCRIPTIONS IN FERC HYDROPOWER LICENSES

Subpart A--General Provisions

Sec.
221.1 What is the purpose of this part, and to what license 
proceedings does it apply?
221.2 What terms are used in this part?
221.3 How are time periods computed?
221.4 What deadlines apply to pending applications?

Subpart B--Hearing Process

Representatives

221.10 Who may represent a party, and what requirements apply to a 
representative?

Document Filing and Service

221.11 What are the form and content requirements for documents 
under this subpart?
221.12 Where and how must documents be filed?
221.13 What are the requirements for service of documents?

Initiation of Hearing Process

221.20 What supporting information must NMFS provide with its 
preliminary prescriptions?
221.21 How do I request a hearing?
221.22 How do I file a notice of intervention and response?
221.23 When will hearing requests be consolidated?
221.24 How will NMFS respond to any hearing requests?
221.25 What will NMFS do with any hearing requests?
221.26 What regulations apply to a case referred for a hearing?

General Provisions Related to Hearings

221.30 What will the Department of Commerce's designated ALJ office 
do with a case referral?
221.31 What are the powers of the ALJ?
221.32 What happens if the ALJ becomes unavailable?
221.33 Under what circumstances may the ALJ be disqualified?
221.34 What is the law governing ex parte communications?
221.35 What are the requirements for motions?

Prehearing Conferences and Discovery

221.40 What are the requirements for prehearing conferences?
221.41 How may parties obtain discovery of information needed for 
the case?
221.42 When must a party supplement or amend information it has 
previously provided?
221.43 What are the requirements for written interrogatories?
221.44 What are the requirements for depositions?
221.45 What are the requirements for requests for documents or 
tangible things or entry on land?
221.46 What sanctions may the ALJ impose for failure to comply with 
discovery?
221.47 What are the requirements for subpoenas and witness fees?

Hearing, Briefing, and Decision

221.50 When and where will the hearing be held?
221.51 What are the parties' rights during the hearing?
221.52 What are the requirements for presenting testimony?
221.53 How may a party use a deposition in the hearing?
221.54 What are the requirements for exhibits, official notice, and 
stipulations?
221.55 What evidence is admissible at the hearing?
221.56 What are the requirements for transcription of the hearing?
221.57 What is the standard of proof?
221.58 When will the hearing record close?
221.59 What are the requirements for post-hearing briefs?
221.60 What are the requirements for the ALJ's decision?

Subpart C--Alternatives Process

221.70 How must documents be filed and served under this subpart?
221.71 How do I propose an alternative?
221.72 What will NMFS do with a proposed alternative?
221.73 How will NMFS analyze a proposed alternative and formulate 
its modified prescription?


Sec.  221.74  Has OMB approved the information collection provisions of 
this subpart?

    Authority: 16 U.S.C. 797(e), 811, 823d.

Subpart A--General Provisions


Sec.  221.1  What is the purpose of this part, and to what license 
proceedings does it apply?

    (a) Hearing process. (1) The regulations in subparts A and B of 
this part contain rules of practice and procedure applicable to 
hearings on disputed issues of material fact with respect to mandatory 
prescriptions that the Department of Commerce, acting through the 
National Oceanic and Atmospheric Administration's National Marine 
Fisheries Service (NMFS) may develop for inclusion in a hydropower 
license issued by the Federal Energy Regulatory Commission (FERC) under 
subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791 et seq. The 
authority to develop these prescriptions is granted by FPA section 18, 
16 U.S.C. 811, which authorizes the Secretary of Commerce to prescribe 
fishways.

[[Page 69841]]

    (2) The hearing process under this part does not apply to 
recommendations that the Department of Commerce may submit to FERC 
under FPA section 10(a) or (j), 16 U.S.C. 803(a), (j).
    (3) The FPA also grants the Department of Agriculture and Interior 
the authority to develop mandatory conditions, and the Department of 
the Interior the authority to develop mandatory prescriptions, for 
inclusion in a hydropower license. Where the Department of Commerce and 
either or both of these other Departments develop conditions or 
prescriptions to be included in the same hydropower license and where 
the Departments agree to consolidate the hearings under Sec.  221.23:
    (i) A hearing conducted under this part will also address disputed 
issues of material fact with respect to any condition or prescription 
developed by one of the other Departments; or
    (ii) A hearing requested under this part will be conducted by one 
of the other Departments, pursuant to 7 CFR 1.601 et seq. or 43 CFR 
45.1 et seq., as applicable.
    (4) The regulations in subparts A and B of this part will be 
construed and applied to each hearing process to achieve a just and 
speedy determination, consistent with adequate consideration of the 
issues involved and the provisions of Sec.  221.60(a).
    (b) Alternatives process. The regulations in subparts A and C of 
this part contain rules of procedure applicable to the submission and 
consideration of alternative prescriptions under FPA section 33, 16 
U.S.C. 823d. That section allows any party to the license proceeding to 
propose an alternative to a fishway prescribed by NMFS under section 
18.
    (c) Reservation of authority. Where NMFS notifies FERC that it is 
reserving its authority to develop one or more prescriptions during the 
term of the license, the hearing and alternatives processes under this 
part for such prescriptions will be available if and when NMFS 
exercises its reserved authority. NMFS will consult with FERC and 
notify the license parties regarding how to initiate the hearing 
process and alternatives process at that time.
    (d) Applicability. (1) This part applies to any hydropower license 
proceeding for which the license has not been issued as of November 17, 
2005 and for which one or more preliminary prescriptions or 
prescriptions have been or are filed with FERC.
    (2) If NMFS has already filed one or more preliminary prescriptions 
or prescriptions as of November 17, 2005, the special applicability 
provisions of Sec.  221.4 also apply.


Sec.  221.2  What terms are used in this part?

    As used in this part:
    ALJ means an administrative law judge appointed under 5 U.S.C. 3105 
and assigned to preside over the hearing process under subpart B of 
this part.
    Alternative means a prescription that a license party other than 
NMFS or another Department develops as an alternative to a preliminary 
prescription from NMFS or another Department, under FPA sec. 33, 16 
U.S.C. 823d.
    Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), 
for the adequate protection and utilization of a reservation.
    Day means a calendar day.
    Department means the Department of Agriculture, Department of 
Commerce, or Department of the Interior.
    Department of Commerce's designated ALJ office means the ALJ office 
that is assigned to preside over the hearings process for NMFS.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    Ex parte communication means an oral or written communication to 
the ALJ that is made without providing all parties reasonable notice 
and an opportunity to participate.
    FERC means the Federal Energy Regulatory Commission.
    FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
    Intervention means a process by which a person who did not request 
a hearing under Sec.  221.21 can participate as a party to the hearing 
under Sec.  221.22.
    License party means a party to the license proceeding, as that term 
is defined at 18 CFR 385.102(c).
    License proceeding means a proceeding before FERC for issuance of a 
license for a hydroelectric facility under 18 CFR parts 4 or 5.
    Material fact means a fact that, if proved, may affect a 
Department's decision whether to affirm, modify, or withdraw any 
condition or prescription.
    NEPA document means an environmental assessment or environmental 
impact statement issued to comply with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
    NMFS means the National Marine Fisheries Service, a constituent 
agency of the Department of Commerce, acting by and through the 
Assistant Administrator for Fisheries or one of NMFS's six Regional 
Administrators, as appropriate.
    Office of Habitat Conservation means the NMFS Office of Habitat 
Conservation. Address: Chief, Habitat Protection Division, Office of 
Habitat Conservation, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. Telephone 301-713-4300. Facsimile 
number 301-713-4305.
    Party means, with respect to NMFS's hearing process under subpart B 
of this part:
    (1) A license party that has filed a timely request for a hearing 
under:
    (i) Section 221.21; or
    (ii) Either 7 CFR 1.621 or 43 CFR 45.21, with respect to a hearing 
process consolidated under Sec.  221.23;
    (2) A license party that has filed a timely notice of intervention 
and response under:
    (i) Section 221.22; or
    (ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing 
process consolidated under Sec.  221.23;
    (3) NMFS, if it has filed a preliminary prescription; and
    (4) Any other Department that has filed a preliminary condition or 
prescription, with respect to a hearing process consolidated under 
Sec.  221.23.
    Person means an individual; a partnership, corporation, 
association, or other legal entity; an unincorporated organization; and 
any federal, state, tribal, county, district, territorial, or local 
government or agency.
    Preliminary condition or prescription means a preliminary condition 
or prescription filed by a Department with FERC under 18 CFR 4.34(b), 
4.34(i), or 5.22(a) for potential inclusion in a hydropower license.
    Prescription means a fishway prescribed under FPA sec. 18, 16 
U.S.C. 811, to provide for the safe, timely, and effective passage of 
fish.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec.  221.10.
    Secretary means the Secretary of Commerce or his or her designee.
    Senior Department employee has the same meaning as the term 
``senior employee'' in 5 CFR 2637.211(a).
    You refers to a party other than a Department.


Sec.  221.3  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or federal holiday, the 
period is extended to the next business day.

[[Page 69842]]

    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
federal holiday that falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a request for a hearing under Sec.  221.21, a notice of 
intervention and response under Sec.  221.22, an answer under Sec.  
221.24, or any document under subpart C of this part.
    (2) An extension of time to file any other document under subpart B 
of this part may be granted only upon a showing of good cause.
    (i) To request an extension of time, a party must file a motion 
under Sec.  221.35 stating how much additional time is needed and the 
reasons for the request.
    (ii) The party must file the motion before the applicable time 
period expires, unless the party demonstrates extraordinary 
circumstances that justify a delay in filing.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the decision under Sec.  221.60.


Sec.  221.4  What deadlines apply to pending applications?

    (a) Applicability. (1) This section applies to any case in which 
NMFS has filed a preliminary prescription or prescription with FERC 
before November 17, 2005 and FERC has not issued a license as of that 
date.
    (2) The deadlines in this section will apply in such a case, in 
lieu of any inconsistent deadline in other sections of this part.
    (b) Hearing process. (1) Any request for a hearing under Sec.  
221.21 must be filed with the Office of Habitat Conservation by 
December 19, 2005.
    (2) Any notice of intervention and response under Sec.  221.22 must 
be filed by January 3, 2006.
    (3) Upon receipt of a hearing request under paragraph (b)(1) of 
this section, NMFS must do the following by March 17, 2006:
    (i) Comply with the requirements of Sec.  221.23;
    (ii) Determine jointly with any other Department that has received 
a hearing request, after consultation with FERC, a time frame for the 
hearing process and a corresponding deadline for NMFS to file an answer 
under Sec.  221.24; and
    (iii) Issue a notice to each party specifying the time frame for 
the hearing process, including the deadline for NMFS to file an answer.
    (c) Alternatives process. (1) Any alternative under Sec.  221.71 
must be filed with the Office of Habitat Conservation by December 19, 
2005.
    (2) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if no hearing request is filed under paragraph (b)(1) of this 
section, NMFS must do the following by February 15, 2006:
    (i) Determine jointly with any other Department that has received a 
related alternative, after consultation with FERC, a time frame for the 
filing of a modified prescription under Sec.  221.72(b); and
    (ii) Issue a notice to the license party that has submitted the 
alternative, specifying the time frame for the filing of a modified 
prescription.
    (3) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if a hearing request is also filed under paragraph (b)(1) of 
this section, NMFS will follow the provisions of paragraph (b)(3) of 
this section.

Subpart B--Hearing Process

Representatives


Sec.  221.10  Who may represent a party, and what requirements apply to 
a representative?

    (a) Individuals. A party who is an individual may either represent 
himself or herself in the hearing process under this subpart or 
authorize an attorney to represent him or her.
    (b) Organizations. A party that is an organization or other entity 
may authorize one of the following to represent it:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;
    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (5) An elected or appointed official or an employee, if the entity 
is a federal, state, tribal, county, district, territorial, or local 
government or component.
    (c) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under 
Sec.  221.11;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (3) If the representative is an attorney, include a statement that 
he or she is a member in good standing of the bar of the highest court 
of a state, the District of Columbia, or any territory or commonwealth 
of the United States (identifying which one); and
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (d) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

Document Filing and Service


Sec.  221.11  What are the form and content requirements for documents 
under this subpart?

    (a) Form. Each document filed in a case under this subpart must:
    (1) Measure 8\1/2\ by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8\1/2\ by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 10 point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, 
which may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document filed under this subpart must begin with 
a caption that sets forth:
    (1) The name of the case under this subpart and the docket number, 
if one has been assigned;
    (2) The name and docket number of the license proceeding to which 
the case under this subpart relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document filed under this 
subpart must be signed by the representative of the person for whom the 
document is filed. The signature constitutes a certification by the 
representative that he or she has read the document; that to the best 
of his or her knowledge, information, and belief, the statements made 
in the document are true; and that the document is not being filed for 
the purpose of causing delay.
    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, 
street address (if different), telephone number, facsimile number (if 
any), and electronic mail address (if any).

[[Page 69843]]

Sec.  221.12  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under this 
subpart must be filed with the appropriate office, as follows:
    (1) Before NMFS refers a case for docketing under Sec.  221.25, any 
documents must be filed with the Office of Habitat Conservation. The 
Office of Habitat Conservation's address, telephone number, and 
facsimile number are set forth in Sec.  221.2.
    (2) NMFS will notify the parties of the date on which it refers a 
case for docketing under Sec.  221.25. After that date, any documents 
must be filed with:
    (i) The Department of Commerce's designated ALJ office. The name, 
address, telephone number, and facsimile number of the Department of 
Commerce's designated ALJ office will be provided in the referral 
notice from NMFS; or
    (ii) The hearings component of or used by another Department, if 
that Department will be conducting the hearing under Sec.  221.25. The 
name, address, telephone number, and facsimile number of the 
appropriate hearings component will be provided in the referral notice 
from NMFS.
    (b) Method of filing. (1) A document must be filed with the 
appropriate office under paragraph (a) of this section using one of the 
following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission 
was successful; and
    (C) The original of the document is sent by regular mail on the 
same day.
    (2) Parties are encouraged, but not required to supplement any 
original document by providing the appropriate office with an 
electronic copy of the document on compact disc.
    (c) Date of filing. A document under this subpart is considered 
filed on the date it is received. However, any document received after 
5 p.m. at the place where the filing is due is considered filed on the 
next regular business day.
    (d) Nonconforming documents. If any document submitted for filing 
under this subpart does not comply with the requirements of this 
subpart or any applicable order, it may be rejected. If the defect is 
minor, the party may be notified of the defect and given a chance to 
correct it.


Sec.  221.13  What are the requirements for service of documents?

    (a) Filed documents. Any document related to a case under this 
subpart must be served at the same time the document is delivered or 
sent for filing. Copies must be served as follows:
    (1) A complete copy of any request for a hearing under Sec.  221.21 
must be served on FERC and each license party, using one of the methods 
of service in paragraph (c) of this section.
    (2) A complete copy of any notice of intervention and response 
under Sec.  221.22 must be:
    (i) Served on FERC, the license applicant, any person who has filed 
a request for hearing under Sec.  221.21, and NMFS, using one of the 
methods of service in paragraph (c) of this section; and
    (ii) Sent to any other license party using regular mail.
    (3) A complete copy of any other filed document must be served on 
each party, using one of the methods of service in paragraph (c) of 
this section.
    (b) Documents issued by the ALJ. A complete copy of any notice, 
order, decision, or other document issued by the ALJ under this subpart 
must be served on each party, using one of the methods of service in 
paragraph (c) of this section.
    (c) Method of service. Service must be accomplished by one of the 
following methods:
    (1) By hand delivery of the document;
    (2) By sending the document by express mail or courier service for 
delivery on the next business day;
    (3) By sending the document by facsimile if:
    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day; or
    (4) By sending the document, including all attachments, by 
electronic mail if:
    (i) A copy of the document is sent by regular mail on the same day; 
and
    (ii) The party acknowledges receipt of the document by close of the 
next business day.
    (d) Acknowledgment of service. Any party who receives a document 
under this subpart by electronic mail must promptly send a reply 
electronic mail message acknowledging receipt.
    (e) Certificate of service. A certificate of service must be 
attached to each document filed under this subpart. The certificate 
must be signed by the party's representative and include the following 
information:
    (1) The name, address, and other contact information of each 
party's representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (c)(4) of this section, if 
applicable; and
    (3) The date of service.

Initiation of Hearing Process


Sec.  221.20  What supporting information must NMFS provide with its 
preliminary prescriptions?

    (a) Supporting information. (1) When NMFS files a preliminary 
prescription with FERC, it must include a rationale for the 
prescription and an index to NMFS's administrative record that 
identifies all documents relied upon.
    (2) If any of the documents relied upon are not already in the 
license proceeding record, NMFS must:
    (i) File them with FERC at the time it files the preliminary 
prescription; and
    (ii) Provide copies to the license applicant.
    (b) Service. NMFS will serve a copy of its preliminary prescription 
on each license party.


Sec.  221.21  How do I request a hearing?

    (a) General. To request a hearing on disputed issues of material 
fact with respect to any prescription filed by NMFS, you must:
    (1) Be a license party; and
    (2) File with the Office of Habitat Conservation a written request 
for a hearing within 30 days after the deadline for the Departments to 
file preliminary prescriptions with FERC.
    (b) Content. Your hearing request must contain:
    (1) A numbered list of the factual issues that you allege are in 
dispute, each stated in a single, concise sentence; and
    (2) The following information with respect to each issue:
    (i) The specific factual statements made or relied upon by [the 
bureau] under Sec.  221.20(a) that you dispute;
    (ii) The basis for your opinion that those factual statements are 
unfounded or erroneous;
    (iii) The basis for your opinion that any factual dispute is 
material; and
    (iv) With respect to any scientific studies, literature, and other 
documented information supporting your opinions under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the 
information relied upon. If any such document is not already in the 
license proceeding

[[Page 69844]]

record, you must provide a copy with the request.
    (c) Witnesses and exhibits. Your hearing request must also list the 
witnesses and exhibits that you intend to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(2) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.


Sec.  221.22  How do I file a notice of intervention and response?

    (a) General. (1) To intervene as a party to the hearing process, 
you must:
    (i) Be a license party; and
    (ii) File with the Office of Habitat Conservation a notice of 
intervention and a written response to any request for a hearing within 
15 days after the date of service of the request for a hearing.
    (2) A license party filing a notice of intervention and response 
may not raise issues of material fact beyond those raised in the 
hearing request.
    (b) Content. In your notice of intervention and response you must 
explain your position with respect to the issues of material fact 
raised in the hearing request under Sec.  221.21(b).
    (1) If you agree with the information provided by NMFS under Sec.  
221.20(a) or by the requester under Sec.  221.21(b), your response may 
refer to NMFS's explanation or the requester's hearing request for 
support.
    (2) If you wish to rely on additional information or analysis, your 
response must provide the same level of detail with respect to the 
additional information or analysis as required under Sec.  221.21(b).
    (c) Witnesses and exhibits. Your response and notice must also list 
the witnesses and exhibits that you intend to present at the hearing, 
other than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony; 
and
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b) of this section may not exceed 
two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.


Sec.  221.23  When will hearing requests be consolidated?

    (a) Initial Department coordination. If NMFS has received a copy of 
a hearing request, it must contact the other Departments within 10 days 
after the deadline for filing hearing requests under Sec.  221.21 and 
determine:
    (1) Whether any of the other Departments has also filed a 
preliminary condition or prescription relating to the license with 
FERC; and
    (2) If so, whether the other Departments have also received a 
hearing request with respect to the preliminary condition or 
prescription.
    (b) Decision on consolidation. Within 25 days after the deadline 
for filing hearing requests under Sec.  221.21, if NMFS has received a 
hearing request, NMFS must:
    (1) Consult with any other Department that has also received a 
hearing request; and
    (2) Decide jointly with the other Department:
    (i) Whether to consolidate the cases for hearing under paragraphs 
(c)(3)(ii) through (c)(3)(iv) of this section; and
    (ii) If so, which Department will conduct the hearing on their 
behalf.
    (c) Criteria. Cases will or may be consolidated as follows:
    (1) All hearing requests with respect to any prescriptions from 
NMFS will be consolidated for hearing.
    (2) Any or all of the following may be consolidated for hearing if 
NMFS determines that there are common issues of material fact or that 
consolidation is otherwise appropriate:
    (i) Two or more hearing requests with respect to prescriptions from 
NMFS and the Department of the Interior; or
    (ii) Two or more hearing requests with respect to any condition 
from another Department and any prescription from NMFS.


Sec.  221.24  How will NMFS respond to any hearing requests?

    (a) General. NMFS will determine whether to file an answer to any 
hearing request under Sec.  221.21.
    (b) Content. If NMFS files an answer:
    (1) For each of the numbered factual issues listed under Sec.  
221.21(b)(1), the answer must explain NMFS's position with respect to 
the issues of material fact raised by the requester, including one or 
more of the following statements as appropriate:
    (i) That NMFS is willing to stipulate to the facts as alleged by 
the requester;
    (ii) That NMFS believes the issue listed by the requester is not a 
factual issue, explaining the basis for such belief;
    (iii) That NMFS believes the issue listed by the requester is not 
material, explaining the basis for such belief; or
    (iv) That NMFS agrees that the issue is factual, material, and in 
dispute.
    (2) The answer must also indicate whether the hearing request will 
be consolidated with one or more other hearing requests under Sec.  
221.23 and, if so:
    (i) Identify any other hearing request that will be consolidated 
with this hearing request; and
    (ii) State which Department will conduct the hearing and provide 
contact information for the appropriate Department hearings component.
    (c) Witnesses and exhibits. NMFS's answer must also list the 
witnesses and exhibits that it intends to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, NMFS must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, NMFS must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(1) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.
    (e) Notice in lieu of answer. If NMFS elects not to file an answer 
to a hearing request:
    (1) NMFS is deemed to agree that the issues listed by the requester 
are factual, material, and in dispute;
    (2) NMFS may file a list of witnesses and exhibits with respect to 
the request only as provided in Sec.  221.42(b); and
    (3) NMFS must file a notice containing the information required by 
paragraph (b)(2) of this section, if the hearing request will be 
consolidated with one or more other hearing requests under Sec.  
221.23.


Sec.  221.25  What will NMFS do with any hearing requests?

    (a) Case referral. Within 50 days after the deadline in Sec.  
221.21(a), NMFS will refer the case for a hearing as follows:

[[Page 69845]]

    (1) If the hearing is to be conducted by NMFS, NMFS will refer the 
case to the Department of Commerce's designated ALJ office.
    (2) If the hearing is to be conducted by another Department, NMFS 
will refer the case to the hearings component used by that Department.
    (b) Content. The case referral will consist of the following:
    (1) A copy of any preliminary prescription under Sec.  221.20;
    (2) The original of any hearing request under Sec.  221.21;
    (3) The original of any notice of intervention and response under 
Sec.  221.22;
    (4) The original of any answer under Sec.  221.24; and
    (5) An original referral notice under paragraph (c) of this 
section.
    (c) Notice. At the time NMFS refers the case for a hearing, it must 
provide a referral notice that contains the following information:
    (1) The name, address, telephone number, and facsimile number of 
the Department hearings component that will conduct the hearing;
    (2) The name, address, and other contact information for the 
representative of each party to the hearing process;
    (3) An identification of any other hearing request that will be 
consolidated with this hearing request; and
    (4) The date on which NMFS is referring the case for docketing.
    (d) Delivery and service. (1) NMFS must refer the case to the 
appropriate Department hearings component by one of the methods 
identified in Sec.  221.12(b)(1)(i) through (b)(1)(ii).
    (2) NMFS must serve a copy of the referral notice on FERC and each 
party to the hearing by one of the methods identified in Sec.  
221.13(c)(1) and (c)(2).


Sec.  221.26  What regulations apply to a case referred for a hearing?

    (a) If NMFS refers the case to the Department of Commerce's 
designated ALJ office, the regulations in this subpart will continue to 
apply to the hearing process.
    (b) If NMFS refers the case to the United States Department of 
Agriculture's Office of Administrative Law Judges, the regulations at 7 
CFR 1.601 et seq. will apply from that point on.
    (c) If NMFS refers the case to the Department of the Interior's 
Office of Hearings and Appeals, the regulations at 43 CFR 45.1 et seq. 
will apply from that point on.

General Provisions Related to Hearings


Sec.  221.30  What will the Department of Commerce's designated ALJ 
office do with a case referral?

    Within 5 days after issuance of the referral notice under Sec.  
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c):
    (a) The Department of Commerce's designated ALJ office must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case; and
    (b) The ALJ must issue a notice setting the time, place, and method 
for conducting an initial prehearing conference under Sec.  221.40. 
This notice may be combined with the docketing notice under paragraph 
(a)(3) of this section.


Sec.  221.31  What are the powers of the ALJ?

    The ALJ will have all powers necessary to conduct a fair, orderly, 
expeditious, and impartial hearing process, consistent with the 
requirements of Sec.  221.60(a), including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery as provided for in this subpart;
    (e) Hold hearings and conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Issue a decision consistent with Sec.  221.60(b) regarding any 
disputed issues of material fact relating to any Department's condition 
or prescription that has been referred to the ALJ for hearing; and
    (j) Take any other action authorized by law.


Sec.  221.32  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec.  221.31, the Department of Commerce's 
designated ALJ office shall designate a successor.
    (b) If a hearing has commenced and the ALJ cannot proceed with it, 
a successor ALJ may do so. At the request of a party, the successor ALJ 
may recall any witness whose testimony is material and disputed, and 
who is available to testify again without undue burden. The successor 
ALJ may, within his or her discretion, recall any other witness.


Sec.  221.33  Under what circumstances may the ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (b) At any time before issuance of the ALJ's decision, any party 
may move that the ALJ disqualify himself or herself for personal bias 
or other valid cause.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (1) If the ALJ concludes that the motion is timely and meritorious, 
he or she must disqualify himself or herself and withdraw from the 
case.
    (2) If the ALJ does not disqualify himself or herself and withdraw 
from the case, the ALJ must continue with the hearing process and issue 
a decision.


Sec.  221.34  What is the law governing ex parte communications?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with 5 U.S.C. 554(d).
    (b) This section does not prohibit ex parte inquiries concerning 
case status or procedural requirements, unless the inquiry involves an 
area of controversy in the hearing process.


Sec.  221.35  What are the requirements for motions?

    (a) General. Any party may apply for an order or ruling on any 
matter related to the hearing process by presenting a motion to the 
ALJ. A motion may be presented any time after the Department of 
Commerce's designated ALJ office issues a docketing notice under Sec.  
221.30.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be reduced to writing.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of this subpart with respect to 
form, content, filing, and service; and
    (iii) Not exceed 10 pages.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and
    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. Except as otherwise required by this part or by order 
of the

[[Page 69846]]

ALJ, any other party may file a response to a written motion within 10 
days after service of the motion. When a party presents a motion at a 
hearing, any other party may present a response orally on the record.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing 
of a motion does not stay the hearing process.
    (f) Ruling. The ALJ will rule on the motion as soon as practicable, 
either orally on the record or in writing. He or she may summarily deny 
any dilatory, repetitive, or frivolous motion.

Prehearing Conferences and Discovery


Sec.  221.40  What are the requirements for prehearing conferences?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec.  221.30, on or about the 20th day after 
issuance of the referral notice under Sec.  221.25(c).
    (1) The initial prehearing conference will be used:
    (i) To identify, narrow, and clarify the disputed issues of 
material fact and exclude issues that do not qualify for review as 
factual, material, and disputed;
    (ii) To consider the parties' motions for discovery under Sec.  
221.41 and to set a deadline for the completion of discovery;
    (iii) To discuss the evidence on which each party intends to rely 
at the hearing;
    (iv) To set the deadline for submission of written testimony under 
Sec.  221.52; and
    (v) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:
    (i) To discuss limiting and grouping witnesses to avoid 
duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss the submission of written testimony, briefs, or 
other documents in electronic form; and
    (v) To consider any other matters that may aid in the disposition 
of the case.
    (b) Other conferences. The ALJ may in his or her discretion direct 
the parties to attend one or more other prehearing conferences, if 
consistent with the need to complete the hearing process within 90 
days. Any party may by motion request a conference.
    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference. A conference will ordinarily be held 
by telephone, unless the ALJ orders otherwise.
    (d) Preparation. (1) Each party's representative must be fully 
prepared for a discussion of all issues properly before the conference, 
both procedural and substantive. The representative must be authorized 
to commit the party that he or she represents respecting those issues.
    (2) Before the date set for the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (i) To meet in person, by telephone, or by other appropriate means; 
and
    (ii) To reach agreement on discovery and the schedule of remaining 
steps in the hearing process.
    (e) Failure to attend. Unless the ALJ orders otherwise, a party 
that fails to attend or participate in a conference, after being served 
with reasonable notice of its time and place, waives all objections to 
any agreements reached in the conference and to any consequent orders 
or rulings.
    (f) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (g) Order. Within 2 days after the conclusion of each conference, 
the ALJ must issue an order that recites any agreements reached at the 
conference and any rulings made by the ALJ during or as a result of the 
conference.


Sec.  221.41  How may parties obtain discovery of information needed 
for the case?

    (a) General. By agreement of the parties or with the permission of 
the ALJ, a party may obtain discovery of information to assist the 
party in preparing or presenting its case. Available methods of 
discovery are:
    (1) Written interrogatories;
    (2) Depositions as provided in paragraph (h) of this section; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other 
purposes.
    (b) Criteria. Discovery may occur only as agreed to by the parties 
or as authorized by the ALJ in a written order or during a prehearing 
conference. The ALJ may authorize discovery only if the party 
requesting discovery demonstrates:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not already in the license proceeding record or otherwise 
obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law;
    (3) That the scope of the discovery is not unduly burdensome;
    (4) That the method to be used is the least burdensome method 
available;
    (5) That any trade secrets or proprietary information can be 
adequately safeguarded; and
    (6) That the standards for discovery under paragraphs (f) through 
(h) of this section have been met, if applicable.
    (c) Motions. A party may initiate discovery:
    (1) Pursuant to an agreement of the parties; or
    (2) By filing a motion that:
    (i) Briefly describes the proposed method(s), purpose, and scope of 
the discovery;
    (ii) Explains how the discovery meets the criteria in paragraphs 
(b)(1) through (b)(6) of this section; and
    (iii) Attaches a copy of any proposed discovery request (written 
interrogatories, notice of deposition, or request for production of 
designated documents or tangible things or for entry on designated 
land).
    (d) Timing of motions. A party must file any discovery motion under 
paragraph (c)(2) of this section within 7 days after issuance of the 
referral notice under Sec.  221.25(c).
    (e) Objections. (1) A party must file any objections to a discovery 
motion or to specific portions of a proposed discovery request within 7 
days after service of the motion.
    (2) An objection must explain how, in the objecting party's view, 
the discovery sought does not meet the criteria in paragraphs (b)(1) 
through (b)(6) of this section.
    (f) Materials prepared for hearing. A party generally may not 
obtain discovery of documents and tangible things otherwise 
discoverable under paragraph (b) of this section if they were prepared 
in anticipation of or for the hearing by or for another party's 
representative (including the party's attorney, expert, or consultant).
    (1) If a party wants to discover such materials, it must show:
    (i) That it has substantial need of the materials in preparing its 
own case; and
    (ii) That the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means.
    (2) In ordering discovery of such materials when the required 
showing has been made, the ALJ must protect against disclosure of the 
mental impressions, conclusions, opinions, or legal theories of an 
attorney.

[[Page 69847]]

    (g) Experts. Unless restricted by the ALJ, a party may discover any 
facts known or opinions held by an expert concerning any relevant 
matters that are not privileged. Such discovery will be permitted only 
if:
    (1) The expert is expected to be a witness at the hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at the hearing, and the party shows:
    (i) That it has a compelling need for the information; and
    (ii) That it cannot practicably obtain the information by other 
means.
    (h) Limitations on depositions. (1) A party may depose a witness 
only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, 
or other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by 
subpoena.
    (2) Paragraph (h)(1)(ii) of this section does not apply to any 
person employed by or under contract with the party seeking the 
deposition.
    (3) A party may depose a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her government duties.
    (i) Completion of discovery. All discovery must be completed within 
25 days after the initial prehearing conference, unless the ALJ sets a 
different deadline.


Sec.  221.42  When must a party supplement or amend information it has 
previously provided?

    (a) Discovery. A party must promptly supplement or amend any prior 
response to a discovery request if it learns that the response:
    (1) Was incomplete or incorrect when made; or
    (2) Though complete and correct when made, is now incomplete or 
incorrect in any material respect.
    (b) Witnesses and exhibits. (1) Within 5 days after the date set 
for completion of discovery, each party must file an updated version of 
the list of witnesses and exhibits required under Sec. Sec.  221.21(c), 
221.22(c), or 221.24(c).
    (2) If a party wishes to include any new witness or exhibit on its 
updated list, it must provide an explanation of why it was not feasible 
for the party to include the witness or exhibit on its list under 
Sec. Sec.  221.21(c), 221.22(c), or 221.24(c).
    (c) Failure to disclose. (1) A party that fails to disclose 
information required under Sec. Sec.  221.21(c), 221.22(c), or 
221.24(c), or paragraphs (a) or (b) of this section, will not be 
permitted to introduce as evidence at the hearing testimony from a 
witness or other information that it failed to disclose.
    (2) Paragraph (c)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object to the 
admission of evidence under paragraph (c)(1) of this section.
    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (c)(1) through (c)(3) of this 
section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;
    (iii) The extent to which presentation of the evidence would 
disrupt the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.


Sec.  221.43  What are the requirements for written interrogatories?

    (a) Motion. Except upon agreement of the parties, a party wishing 
to propound interrogatories must file a motion under Sec.  221.41(c).
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  221.41(b) with 
respect to any discovery motion requesting the use of written 
interrogatories. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed interrogatories; or
    (2) Deny the motion.
    (c) Answers to interrogatories. Except upon agreement of the 
parties, the party to whom the proposed interrogatories are directed 
must file its answers to any interrogatories approved by the ALJ within 
15 days after issuance of the order under paragraph (b) of this 
section.
    (1) Each approved interrogatory must be answered separately and 
fully in writing.
    (2) The party or its representative must sign the answers to 
interrogatories under oath or affirmation.
    (d) Access to records. A party's answer to an interrogatory is 
sufficient when:
    (1) The information may be obtained from an examination of records, 
or from a compilation, abstract, or summary based on such records;
    (2) The burden of obtaining the information from the records is 
substantially the same for all parties;
    (3) The answering party specifically identifies the individual 
records from which the requesting party may obtain the information and 
where the records are located; and
    (4) The answering party provides the requesting party with 
reasonable opportunity to examine the records and make a copy, 
compilation, abstract, or summary.


Sec.  221.44  What are the requirements for depositions?

    (a) Motion and notice. Except upon agreement of the parties, a 
party wishing to take a deposition must file a motion under Sec.  
221.41(c). Any notice of deposition filed with the motion must state:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition 
is to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  221.41(b) with 
respect to any discovery motion requesting the taking of a deposition. 
The order will:
    (1) Grant the motion and approve the taking of the deposition, 
subject to any conditions or restrictions the ALJ may impose; or
    (2) Deny the motion.
    (c) Arrangements. If the parties agree to or the ALJ approves the 
taking of the deposition, the party requesting the deposition must make 
appropriate arrangements for necessary facilities and personnel.
    (1) The deposition will be taken at the time and place agreed to by 
the parties or indicated in the ALJ's order.
    (2) The deposition may be taken before any disinterested person 
authorized to administer oaths in the place where the deposition is to 
be taken.
    (3) Any party that objects to the taking of a deposition because of 
the disqualification of the person before whom it is to be taken must 
do so:
    (i) Before the deposition begins; or
    (ii) As soon as the disqualification becomes known or could have 
been discovered with reasonable diligence.

[[Page 69848]]

    (4) A deposition may be taken by telephone conference call, if 
agreed to by the parties or approved in the ALJ's order.
    (d) Testimony. Each witness deposed must be placed under oath or 
affirmation, and the other parties must be given an opportunity for 
cross-examination.
    (e) Representation of witness. The witness being deposed may have 
counsel or another representative present during the deposition.
    (f) Recording and transcript. Except as provided in paragraph (g) 
of this section, the deposition must be stenographically recorded and 
transcribed at the expense of the party that requested the deposition.
    (1) Any other party may obtain a copy of the transcript at its own 
expense.
    (2) Unless waived by the deponent, the deponent will have 3 days 
after receiving the transcript to read and sign it.
    (3) The person before whom the deposition was taken must certify 
the transcript following receipt of the signed transcript from the 
deponent or expiration of the 3-day review period, whichever occurs 
first.
    (g) Video recording. The testimony at a deposition may be recorded 
on videotape, subject to any conditions or restrictions that the 
parties may agree to or the ALJ may impose, at the expense of the party 
requesting the recording.
    (1) The video recording may be in conjunction with an oral 
examination by telephone conference held under paragraph (c)(3) of this 
section.
    (2) After the deposition has been taken, the person recording the 
deposition must:
    (i) Provide a copy of the videotape to any party that requests it, 
at the requesting party's expense; and
    (ii) Attach to the videotape a statement identifying the case and 
the deponent and certifying the authenticity of the video recording.
    (h) Use of deposition. A deposition may be used at the hearing as 
provided in Sec.  221.53.


Sec.  221.45  What are the requirements for requests for documents or 
tangible things or entry on land?

    (a) Motion. Except upon agreement of the parties, a party wishing 
to request the production of designated documents or tangible things or 
entry on designated land must file a motion under Sec.  221.41(c). A 
request may include any of the following that are in the possession, 
custody, or control of another party:
    (1) The production of designated documents for inspection and 
copying, other than documents that are already in the license 
proceeding record;
    (2) The production of designated tangible things for inspection, 
copying, testing, or sampling; or
    (3) Entry on designated land or other property for inspection and 
measuring, surveying, photographing, testing, or sampling either the 
property or any designated object or operation on the property.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec.  221.41(b) with 
respect to any discovery motion requesting the production of documents 
or tangible things or entry on land for inspection, copying, or other 
purposes. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed requests; or
    (2) Deny the motion.
    (c) Compliance with order. Except upon agreement of the parties, 
the party to whom any approved request for production is directed must 
permit the approved inspection and other activities within 15 days 
after issuance of the order under paragraph (a) of this section.


Sec.  221.46  What sanctions may the ALJ impose for failure to comply 
with discovery?

    (a) Upon motion of a party, the ALJ may impose sanctions under 
paragraph (b) of this section if any party:
    (1) Fails to comply with an order approving discovery; or
    (2) Fails to supplement or amend a response to discovery under 
Sec.  221.42(a).
    (b) The ALJ may impose one or more of the following sanctions:
    (1) Infer that the information, testimony, document, or other 
evidence withheld would have been adverse to the party;
    (2) Order that, for the purposes of the hearing, designated facts 
are established;
    (3) Order that the party not introduce into evidence, or otherwise 
rely on to support its case, any information, testimony, document, or 
other evidence:
    (i) That the party improperly withheld; or
    (ii) That the party obtained from another party in discovery;
    (4) Allow another party to use secondary evidence to show what the 
information, testimony, document, or other evidence withheld would have 
shown; or
    (5) Take other appropriate action to remedy the party's failure to 
comply.


Sec.  221.47  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (1) Except as provided in paragraph 
(a)(2) of this section, any party may file a motion requesting the ALJ 
to issue a subpoena to the extent authorized by law for the attendance 
of a person, the giving of testimony, or the production of documents or 
other relevant evidence during discovery or for the hearing.
    (2) A party may subpoena a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the employee's attendance would not significantly 
interfere with the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not 
a party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth:
    (A) The date, time, and manner of service; or
    (B) The reason for any failure of service; and
    (ii) Swear to or affirm the certificate, attach it to a copy of the 
subpoena, and return it to the party on whose behalf the subpoena was 
served.
    (c) Witness fees. (1) A party who subpoenas a witness who is not a 
party must pay him or her the same fees and mileage expenses that are 
paid witnesses in the district courts of the United States.
    (2) A witness who is not a party and who attends a deposition or 
hearing at the request of any party without having been subpoenaed to 
do so is entitled to the same fees and mileage expenses as if he or she 
had been subpoenaed. However, this paragraph does not apply to federal 
employees who are called as witnesses by a Department.
    (d) Motion to quash. (1) A person to whom a subpoena is directed 
may request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for 
compliance, if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:

[[Page 69849]]

    (i) Is unreasonable;
    (ii) Requires evidence during discovery that is not discoverable; 
or
    (iii) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. For good cause shown, the ALJ may apply to the 
appropriate United States District Court for the issuance of an order 
compelling the appearance and testimony of a witness or the production 
of evidence as set forth in a subpoena that has been duly issued and 
served.

Hearing, Briefing, and Decision


Sec.  221.50  When and where will the hearing be held?

    (a) Except as provided in paragraph (b) of this section, the 
hearing will be held at the time and place set at the initial 
prehearing conference under Sec.  221.40, generally within 15 days 
after the date set for completion of discovery.
    (b) On motion by a party or on the ALJ's initiative, the ALJ may 
change the date, time, or place of the hearing if he or she finds:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.


Sec.  221.51  What are the parties' rights during the hearing?

    Consistent with the provisions of this subpart, each party has the 
following rights during the hearing, as necessary to assure full and 
accurate disclosure of the facts:
    (a) To present direct and rebuttal evidence;
    (b) To make objections, motions, and arguments; and
    (c) To cross-examine witnesses and to conduct re-direct and re-
cross examination as permitted by the ALJ.


Sec.  221.52  What are the requirements for presenting testimony?

    (a) Written direct testimony. Unless otherwise ordered by the ALJ, 
all direct hearing testimony must be prepared and submitted in written 
form.
    (1) Prepared written testimony must:
    (i) Have line numbers inserted in the left-hand margin of each 
page;
    (ii) Be authenticated by an affidavit or declaration of the 
witness;
    (iii) Be filed within 5 days after the date set for completion of 
discovery, unless the ALJ sets a different deadline; and
    (iv) Be offered as an exhibit during the hearing.
    (2) Any witness submitting written testimony must be available for 
cross-examination at the hearing.
    (b) Oral testimony. Oral examination of a witness in a hearing, 
including on cross-examination or redirect, must be conducted under 
oath and in the presence of the ALJ, with an opportunity for all 
parties to question the witness.
    (c) Telephonic testimony. The ALJ may by order allow a witness to 
testify by telephonic conference call.
    (1) The arrangements for the call must let each party listen to and 
speak to the witness and each other within the hearing of the ALJ.
    (2) The ALJ will ensure the full identification of each speaker so 
the reporter can create a proper record.
    (3) The ALJ may issue a subpoena under Sec.  221.47 directing a 
witness to testify by telephonic conference call.


Sec.  221.53  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use in the hearing any part or all of a deposition taken under 
Sec.  221.44 against any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.
    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the ALJ.
    (2) The ALJ will exclude from evidence any question and response to 
which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (i) An adverse party may require the party to introduce any other 
part that ought in fairness to be considered with the part introduced; 
and
    (ii) Any other party may introduce any other parts.
    (c) Videotaped deposition. If the deposition was recorded on 
videotape and is admitted into evidence, relevant portions will be 
played during the hearing and transcribed into the record by the 
reporter.


Sec.  221.54  What are the requirements for exhibits, official notice, 
and stipulations?

    (a) General. (1) Except as provided in paragraphs (b) through (e) 
of this section, any material offered in evidence, other than oral 
testimony, must be offered in the form of an exhibit.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:
    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent practicable; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (2) The ALJ must give the other parties an opportunity to inspect 
the entire document and offer in evidence any other portions of the 
document.
    (c) Official notice. (1) At the request of any party at the 
hearing, the ALJ may take official notice of any matter of which the 
courts of the United States may take judicial notice, including the 
public records of NMFS and any other Department party.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (3) Any party requesting official notice of a fact after the 
conclusion of the hearing must show good cause for its failure to 
request official notice during the hearing.
    (d) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is 
binding on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.


Sec.  221.55  What evidence is admissible at the hearing?

    (a) General. (1) Subject to the provisions of Sec.  221.42(b), the 
ALJ may admit any written, oral, documentary, or demonstrative evidence 
that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (2) The ALJ may exclude evidence if its probative value is 
substantially outweighed by the risk of undue prejudice, confusion of 
the issues, or delay.
    (3) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (4) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the ALJ and the parties in 
interpreting and applying the provisions of this section.

[[Page 69850]]

    (b) Objections. Any party objecting to the admission or exclusion 
of evidence shall concisely state the grounds. A ruling on every 
objection must appear in the record.


Sec.  221.56  What are the requirements for transcription of the 
hearing?

    (a) Transcript and reporter's fees. The hearing will be transcribed 
verbatim.
    (1) The Department of Commerce's designated ALJ office will secure 
the services of a reporter and pay the reporter's fees to provide an 
original transcript to the Department of Commerce's designated ALJ 
office on an expedited basis.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript Corrections. (1) Any party may file a motion 
proposing corrections to the transcript. The motion must be filed 
within 5 days after receipt of the transcript, unless the ALJ sets a 
different deadline.
    (2) Unless a party files a timely motion under paragraph (b)(1) of 
this section, the transcript will be presumed to be correct and 
complete, except for obvious typographical errors.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any motions filed under paragraph (b)(1) of this 
section, the ALJ will issue an order making any corrections to the 
transcript that the ALJ finds are warranted.


Sec.  221.57  What is the standard of proof?

    The standard of proof is a preponderance of the evidence.


Sec.  221.58  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Evidence may not be added after the hearing record is closed, 
but the transcript may be corrected under Sec.  221.56(b).


Sec.  221.59  What are the requirements for post-hearing briefs?

    (a) General. (1) Each party may file a post-hearing brief within 10 
days after the close of the hearing, unless the ALJ sets a different 
deadline.
    (2) A party may file a reply brief only if requested by the ALJ. 
The deadline for filing a reply brief, if any, will be set by the ALJ.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted in evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 20 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with 
page references.


Sec.  221.60  What are the requirements for the ALJ's decision?

    (a) Timing. The ALJ must issue a decision within the shorter of the 
following time periods:
    (1) 30 days after the close of the hearing under Sec.  221.58; or
    (2) 90 days after issuance of the referral notice under Sec.  
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c).
    (b) Content. (1) The decision must contain:
    (i) Findings of fact on all disputed issues of material fact;
    (ii) Conclusions of law necessary to make the findings of fact 
(such as rulings on materiality and on the admissibility of evidence); 
and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one 
or more of the parties.
    (3) The decision will not contain conclusions as to whether any 
preliminary condition or prescription should be adopted, modified, or 
rejected, or whether any proposed alternative should be adopted or 
rejected.
    (c) Service. Promptly after issuing his or her decision, the ALJ 
must:
    (1) Serve the decision on each party to the hearing; and
    (2) Forward a copy of the decision to FERC, along with the complete 
hearing record, for inclusion in the license proceeding record.
    (d) Finality. The ALJ's decision under this section will be final, 
with respect to the disputed issues of material fact, for NMFS and any 
other Department involved in the hearing. To the extent the ALJ's 
decision forms the basis for any condition or prescription subsequently 
included in the license, it may be subject to judicial review under 16 
U.S.C. 825l(b).

Subpart C--Alternatives Process


Sec.  221.70  How must documents be filed and served under this 
subpart?

    (a) Filing. (1) A document under this subpart must be filed using 
one of the methods set forth in Sec.  221.12(b).
    (2) A document is considered filed on the date it is received. 
However, any document received after 5 p.m. at the place where the 
filing is due is considered filed on the next regular business day.
    (b) Service. (1) Any document filed under this subpart must be 
served at the same time the document is delivered or sent for filing. A 
complete copy of the document must be served on each license party and 
FERC, using:
    (i) One of the methods of service in Sec.  221.13(c); or
    (ii) Regular mail.
    (2) The provisions of Sec.  221.13(d) and (e) regarding 
acknowledgment and certificate of service apply to service under this 
subpart.


Sec.  221.71  How do I propose an alternative?

    (a) General. To propose an alternative, you must:
    (1) Be a license party; and
    (2) File a written proposal with the Office of Habitat Conservation 
within 30 days after the deadline for NMFS to file preliminary 
prescriptions with FERC.
    (b) Content. Your proposal must include:
    (1) A description of the alternative, in an equivalent level of 
detail to NMFS's preliminary prescription;
    (2) An explanation of how the alternative will be no less 
protective than the fishway prescribed by NMFS;
    (3) An explanation of how the alternative, as compared to the 
preliminary prescription, will:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production;
    (4) An explanation of how the alternative will affect:
    (i) Energy supply, distribution, cost, and use;
    (ii) Flood control;
    (iii) Navigation;
    (iv) Water supply;
    (v) Air quality; and
    (vi) Other aspects of environmental quality; and
    (5) Specific citations to any scientific studies, literature, and 
other documented information relied on to

[[Page 69851]]

support your proposal, including any assumptions you are making (e.g., 
regarding the cost of energy or the rate of inflation). If any such 
document is not already in the license proceeding record, you must 
provide a copy with the proposal.


Sec.  221.72  What will NMFS do with a proposed alternative?

    If any license party proposes an alternative to a preliminary 
prescription under Sec.  221.71(a)(1), NMFS must do the following 
within 60 days after the deadline for filing comments to FERC's NEPA 
document under 18 CFR 5.25(c):
    (a) Analyze the alternative under Sec.  221.73; and
    (b) File with FERC:
    (1) Any prescription that NMFS adopts as its modified prescription; 
and
    (2) Its analysis of the modified prescription and any proposed 
alternatives under Sec.  221.73(c).


Sec.  221.73  How will NMFS analyze a proposed alternative and 
formulate its modified prescription?

    (a) In deciding whether to adopt a proposed alternative, NMFS must 
consider evidence and supporting material provided by any license party 
or otherwise available to NMFS including:
    (1) Any evidence on the implementation costs or operational impacts 
for electricity production of the proposed alternative;
    (2) Any comments received on NMFS's preliminary prescription;
    (3) Any ALJ decision on disputed issues of material fact issued 
underSec.  221.60 with respect to the preliminary prescription;
    (4) Comments received on any draft or final NEPA documents; and
    (5) The license party's proposal under Sec.  221.71.
    (b) NMFS must adopt a proposed alternative if NMFS determines, 
based on substantial evidence provided by any license party or 
otherwise available to NMFS, that the alternative will be no less 
protective than NMFS's preliminary prescription and will, as compared 
to NMFS's preliminary prescription:
    (1) Cost significantly less to implement; or
    (2) Result in improved operation of the project works for 
electricity production.
    (c) When NMFS files with FERC the prescription that NMFS adopts as 
its modified prescription under Sec. Sec.  221.72(b), it must also 
file:
    (1) A written statement explaining:
    (i) The basis for the adopted prescription; and
    (ii) If NMFS is not adopting any alternative, its reasons for not 
doing so; and
    (2) Any study, data, and other factual information relied on that 
is not already part of the licensing proceeding record.
    (d) The written statement under paragraph (c)(1) of this section 
must demonstrate that NMFS gave equal consideration to the effects of 
the prescription adopted and any alternative prescription not adopted 
on:
    (1) Energy supply, distribution, cost, and use;
    (2) Flood control;
    (3) Navigation;
    (4) Water supply;
    (5) Air quality; and
    (6) Preservation of other aspects of environmental quality.


Sec.  221.74  Has OMB approved the information collection provisions of 
this subpart?

    Yes. This rule contains provisions that would collect information 
from the public. It therefore requires approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501 et seq. (PRA). According to the PRA, a Federal agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number that indicates OMB approval. OMB has reviewed the 
information collection in this rule and approved it under OMB control 
number 1094-0001.

[FR Doc. 05-22677 Filed 11-16-05; 8:45 am]
BILLING CODE 3410-11-P; 4310-79-P; 3510-22-P