Title 50—Wildlife and Fisheries--Volume 1
PART 221—CONDITIONS AND PRESCRIPTIONS IN FERC HYDROPOWER LICENSES
§ 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 conditions and prescriptions that the Department of Commerce (acting through the National Oceanic and Atmospheric Administration's (NOAA's) National Marine Fisheries Service (NMFS) and other NOAA entities) 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 Commerce 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 provisions that the Department of Commerce may submit to FERC under any authority other than FPA section 4(e) and 18, including recommendations under FPA section 10(a) or (j), 16 U.S.C. 803(a), (j), or terms and conditions under FPA section 30(c), 16 U.S.C. 823a(c).
(3) The FPA also grants the Department of Agriculture and the Department of the 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 § 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 § 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 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 NOAA under section 4(e) or a fishway prescribed by NMFS under section 18.
(c) Reserved authority. Where NOAA has notified or notifies FERC that it is reserving its authority to develop one or more conditions or prescriptions at a later time, the hearing and alternatives processes under this part for such conditions or prescriptions will be available if and when NOAA exercises its reserved authority.
(d) Applicability. (1) This part applies to any hydropower license proceeding for which the license had not been issued as of November 17, 2005, and for which one or more preliminary conditions or prescriptions have been or are filed with FERC before FERC issues the license.
(2) This part also applies to any exercise of NOAA's reserved authority under paragraph (c) of this section with respect to a hydropower license issued before or after November 17, 2005.
§ 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 condition or prescription that a license party other than NOAA or another Department develops as an alternative to a preliminary condition or prescription from NOAA 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 hearing process for NOAA.
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 § 221.21 can participate as a party to the hearing under § 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 part 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.
Modified condition or prescription means any modified condition or prescription filed by a Department with FERC for inclusion in a hydropower license.
NEPA document means an environmental document as defined at 40 CFR 1508.10 to include an environmental assessment, environmental impact statement (EIS), finding of no significant impact, and notice of intent to prepare an EIS. Such documents are issued to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and the CEQ Regulations Implementing the Procedural Requirements of NEPA (40 CFR parts 21500-1508).
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.
NOAA means the National Oceanic and Atmospheric Administration, a constituent agency of the Department of Commerce, acting by and through its Administrator, the Undersecretary of Commerce for Oceans and Atmosphere or one of its line offices.
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 301-427-8601. Facsimile number 301-713-4305.
Party means, with respect to NOAA'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 § 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 § 221.23;
(3) NOAA; and
(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under § 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 any preliminary condition or prescription filed by a Department with FERC 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 § 221.10.
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 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.
§ 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.
(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 § 221.21, a notice of intervention and response under § 221.22, an answer under § 221.25, 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 § 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 § 221.60.
§ 221.4   What deadlines apply to the trial-type hearing and alternatives processes?
(a) The following table summarizes the steps in the trial-type hearing process under subpart B of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part or by the ALJ, the deadlines as set by those other sections or by the ALJ control.
(b) The following table summarizes the steps in the alternatives process under subpart C of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part, the deadlines as set by those other sections control.
§ 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 agent, 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. An individual representing himself or herself and any other representative must file a notice of appearance. The notice must:
(1) Meet the form and content requirements for documents under § 221.11;
(2) Include the name and address of the party 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) Lead representative. If a party has more than one representative, the ALJ may require the party to designate a lead representative for service of documents under § 221.13.
(e) Disqualification. The ALJ may disqualify any representative for misconduct or other good cause.
§ 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 (except that service copies may be printed on both sides of the page);
(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;
(4) Use 11 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).
§ 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 NOAA refers a case for docketing under § 221.26, 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 § 221.2.
(2) NOAA will notify the parties of the date on which it refers a case for docketing under § 221.26. After that date, any documents must be filed with:
(i) The Department of Commerce's designated ALJ office, if the Department of Commerce will be conducting the hearing. The name, address, telephone number, and facsimile number of the designated ALJ office will be provided in the referral notice from NOAA; or
(ii) The hearings component of or used by another Department, if that Department will be conducting the hearing. The name, address, telephone number, and facsimile number of the appropriate hearings component will be provided in the referral notice from NOAA.
(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 and two copies;
(ii) By sending the original document and two copies by express mail or courier service; 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 and two copies are sent by regular mail on the same day.
(2) Parties are encouraged, and may be required by the ALJ, to supplement any filing by providing the appropriate office with an electronic copy of the document on compact disc or other suitable media. With respect to any supporting material accompanying a request for hearing, a notice of intervention and response, or an answer, the party may submit in lieu of an original and two hard copies:
(i) An original; and
(ii) One copy on a compact disc or other suitable media.
(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.
§ 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 § 221.21 must be delivered or sent to FERC and each license party, using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service.
(2) A complete copy of any notice of intervention and response under § 221.22 must be:
(i) Delivered or sent to FERC, the license applicant, any person who has filed a request for hearing under § 221.21, and NOAA, using one of the methods of service in paragraph (c) of this section; and
(ii) Delivered or sent to any other license party using one of the methods of service in paragraph (c) of this section or under 18 CFR 385.2010(f)(3) for license parties that have agreed to receive electronic service, or by regular mail.
(3) A complete copy of any answer or notice under § 221.25 and any other document filed by any party to the hearing process must be delivered or sent on every other party to the hearing process, 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. Unless otherwise agreed to by the parties and ordered by the ALJ, 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 means if the party to be served has consented to that means of service in writing. However, if the serving party learns that the document did not reach the party to be served, the serving party must re-serve the document by another method set forth in paragraph (c) of this section (including another electronic means, if the party to be served has consented to that means in writing).
(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.
§ 221.20   What supporting information must NOAA provide with its preliminary conditions or prescriptions?
(a) Supporting information. (1) When NOAA files a preliminary condition or prescription with FERC, it must include a rationale for the condition or prescription and an index to NOAA'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, NOAA must:
(i) File them with FERC at the time it files the preliminary condition or prescription;
(ii) Provide copies to the license applicant; and
(b) Service. NOAA will serve a copy of its preliminary condition or prescription on each license party.
§ 221.21   How do I request a hearing?
(a) General. To request a hearing on disputed issues of material fact with respect to any preliminary condition or prescription filed by NOAA, you must:
(1) Be a license party; and
(2) File with the Office of Habitat Conservation, at the address provided in § 221.2, a written request for a hearing:
(i) For a case under § 221.1(d)(1), within 30 days after NOAA files a preliminary condition or prescription with FERC; or
(ii) For a case under § 221.1(d)(2), within 60 days after NOAA files a preliminary condition or prescription 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;
(2) The following information with respect to each issue:
(i) The specific factual statements made or relied upon by NOAA under § 221.20(a) that you dispute;
(ii) The basis for your opinion that those factual statements are unfounded or erroneous; and
(iii) The basis for your opinion that any factual dispute is material.
(3) 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; and
(4) A statement indicating whether or not you consent to service by electronic means under § 221.13(c)(4) and, if so, by what means.
(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.
§ 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, at the address provided in § 221.2, a notice of intervention and a written response to any request for a hearing within 20 days after the deadline in § 221.21(a)(2).
(2) A notice of intervention and response must be limited to one or more of the issues of material fact raised in the hearing request and may not raise additional issues.
(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 § 221.21(b).
(1) If you agree with the information provided by NOAA under § 221.20(a) or by the requester under § 221.21(b), your response may refer to NOAA'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 § 221.21(b).
(3) Your notice of intervention and response must also indicate whether or not you consent to service by electronic means under § 221.13(c)(4) and, if so, by what means.
(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 (excluding citations to scientific studies, literature, and other documented information supporting your opinions) may not exceed two pages.
(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.
§ 221.23   Will hearing requests be consolidated?
(a) Initial Department coordination. If NOAA has received a copy of a hearing request, it must contact the other Departments 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. Where more than one Department has received a hearing request, the Departments involved must decide jointly:
(1) Whether the cases should be consolidated for hearing under paragraphs (c)(3)(ii) through (c)(3)(iv) of this section; and
(2) 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) All or any portion 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.
§ 221.24   Can a hearing process be stayed to allow for settlement discussions?
(a) Prior to referral to the ALJ, the hearing requester and NOAA may by agreement stay the hearing process under this subpart for a period not to exceed 120 days to allow for settlement discussions, if the stay period and any subsequent hearing process (if required) can be accommodated within the time frame established for the license proceeding.
(b) Any stay of the hearing process will not affect the deadline for filing a notice of intervention and response, if any, pursuant to § 221.22(a)(1)(ii).
§ 221.25   How will NOAA respond to any hearing requests?
(a) General. Within 50 days after the deadline in § 221.21(a)(2) or 30 days after the expiration of any stay period under § 221.24, whichever is later, NOAA may file with the Office of Habitat Conservation an answer to any hearing request under § 221.21.
(b) Content. If NOAA files an answer:
(1) For each of the numbered factual issues listed under § 221.21(b)(1), the answer must explain NOAA'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 NOAA is willing to stipulate to the facts as alleged by the requester;
(ii) That NOAA believes the issue listed by the requester is not a factual issue, explaining the basis for such belief;
(iii) That NOAA believes the issue listed by the requester is not material, explaining the basis for such belief; or
(iv) That NOAA 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 § 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.
(3) If NOAA plans to rely on any scientific studies, literature, and other documented information that are not already in the license proceeding record, it must provide a copy with its answer.
(4) The answer must also indicate whether or not NOAA consents to service by electronic means under § 221.13(c)(4) and, if so, by what means.
(c) Witnesses and exhibits. NOAA'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, NOAA 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, NOAA 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 NOAA elects not to file an answer to a hearing request:
(1) NOAA is deemed to agree that the issues listed by the requester are factual, material, and in dispute;
(2) NOAA may file a list of witnesses and exhibits with respect to the request only as provided in § 221.42(b); and
(3) NOAA 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 § 221.23, and the statement required by paragraph (b)(4) of this section.
§ 221.26   What will the Office of Habitat Conservation do with any hearing requests?
(a) Case referral. Within 55 days after the deadline in § 221.21(a)(2) or 35 days after the expiration of any stay period under § 221.24, whichever is later, the Office of Habitat Conservation will refer the case for a hearing as follows:
(1) If the hearing is to be conducted by NOAA, the Office of Habitat Conservation will refer the case to the Department of Commerce's designated ALJ office.
(2) If the hearing is to be conducted by another Department, the Office of Habitat Conservation will refer the case to the hearings component used by that Department.
(b) Content. The case referral will consist of the following:
(1) Two copies of any preliminary condition or prescription under § 221.20;
(2) The original and one copy of any hearing request under § 221.21;
(3) The original and one copy of any notice of intervention and response under § 221.22;
(4) The original and one copy of any answer under § 221.25; and
(5) The original and one copy of a referral notice under paragraph (c) of this section.
(c) Notice. At the time the Office of Habitat Conservation 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 effective date of the case referral to the appropriate Department hearings component.
(d) Delivery and service. (1) The Office of Habitat Conservation must refer the case to the appropriate Department hearings component by one of the methods identified in § 221.12(b)(1)(i) and (b)(1)(ii).
(2) The Office of Habitat Conservation must serve a copy of the referral notice on FERC and each party to the hearing by one of the methods identified in § 221.13(c)(1) and (c)(2).
§ 221.27   What regulations apply to a case referred for a hearing?
(a) If the Office of Habitat Conservation 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 the Office of Habitat Conservation 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 the Office of Habitat Conservation 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.
§ 221.30   What will the Department of Commerce's designated ALJ office do with a case referral?
Within 5 days after the effective date stated in the referral notice under § 221.26(c)(4), 43 CFR 45.26(c)(4), or 7 CFR 1.626(c)(4):
(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 § 221.40. This notice may be combined with the docketing notice under paragraph (a)(3) of this section.
§ 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 relating to NOAA's or any other Department's condition or prescription that has been referred to the ALJ for hearing, including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas under § 221.47;
(c) Shorten or enlarge time periods set forth in these regulations, except that the deadline in § 221.60(a)(2) can be extended only if the ALJ must be replaced under § 221.32 or 221.33;
(d) Rule on motions;
(e) Authorize discovery as provided for in this subpart;
(f) Hold hearings and conferences;
(g) Regulate the course of hearings;
(h) Call and question witnesses;
(i) Exclude any person from a hearing or conference for misconduct or other good cause;
(j) Summarily dispose of any hearing request or issue as to which the ALJ determines there is no disputed issue of material fact;
(k) Issue a decision consistent with § 221.60(b) regarding any disputed issue of material fact; and
(l) Take any other action authorized by law.
§ 221.32   What happens if the ALJ becomes unavailable?
(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 221.31, the Department of Commerce's designated ALJ office will 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.
§ 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.
§ 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.
§ 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 § 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 15 pages, including all supporting arguments.
(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, any other party may file a response to a written motion within 10 days after service of the motion. The response may not exceed 15 pages, including all supporting arguments. 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.
§ 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 notice under § 221.30, on or about the 20th day after the effective date stated in the referral notice under § 221.26(c)(4), 7 CFR 1.626(c)(4), or 43 CFR 45.26(c)(4).
(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 § 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 deadlines for submission of written testimony under § 221.52 and exchange of exhibits to be offered as evidence under § 221.54; 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 to discuss all issues pertinent to that party that are 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.
§ 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 as provided in § 221.43;
(2) Depositions of witnesses 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 during a prehearing conference or in a written order under § 221.40(g). 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 the effective date stated in the referral notice under § 221.26(c)(4), 7 CFR 1.626(c)(4), or 43 CFR 45.26(c)(4).
(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 through the methods set out in paragraph (a) of this section 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 an expert or non-expert 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.
(4) Unless otherwise stipulated to by the parties or authorized by the ALJ upon a showing of extraordinary circumstances, a deposition is limited to 1 day of 7 hours.
(i) Completion of discovery. All discovery must be completed within 25 days after the initial prehearing conference.
§ 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 10 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 §§ 221.21(c), 221.22(c), or 221.25(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 §§ 221.21(c), 221.22(c), or 221.25(c).
(c) Failure to disclose. (1) A party will not be permitted to introduce as evidence at the hearing testimony from a witness or other information that it failed to disclose under §§ 221.21(c), 221.22(c), or 221.25(c), or paragraphs (a) or (b) of this section.
(2) Paragraph (c)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.
(3) A party may object to the admission of evidence under paragraph (c)(1) of this section before or during the hearing.
(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1) through (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.
§ 221.43   What are the requirements for written interrogatories?
(a) Motion; limitation. Except upon agreement of the parties:
(1) A party wishing to propound interrogatories must file a motion under § 221.41(c); and
(2) A party may propound no more than 25 interrogatories, counting discrete subparts as separate interrogatories, unless the ALJ approves a higher number upon a showing of good cause.
(b) ALJ order. The ALJ will issue an order under § 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.
§ 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 § 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. The ALJ will issue an order under § 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.
(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)(4) 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 § 221.53.
§ 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 § 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. The ALJ will issue an order under § 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.
§ 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 § 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.
§ 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 request by written motion that the ALJ 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 request a subpoena for 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 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:
(i) Is unreasonable;
(ii) Requires production of information during discovery that is not discoverable; or
(iii) Requires disclosure of irrelevant, privileged, or otherwise protected information.
(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.
§ 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 § 221.40, generally within 25 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.
§ 221.51   What are the parties' rights during the hearing?
Each party has the following rights during the hearing, as necessary to assure full and accurate disclosure of the facts:
(a) To present testimony and exhibits, consistent with the requirements in §§ 221.21(c), 221.22(c), 221.25(c), 221.42(b), and 221.52;
(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.
§ 221.52   What are the requirements for presenting testimony?
(a) Written direct testimony. Unless otherwise ordered by the ALJ, all direct hearing testimony for each party's initial case must be prepared and submitted in written form. The ALJ will determine whether rebuttal testimony, if allowed, must be 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 10 days after the date set for completion of discovery; 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 § 221.47 directing a witness to testify by telephonic conference call.
§ 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 § 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.
§ 221.54   What are the requirements for exhibits, official notice, and stipulations?
(a) General. (1) Except as provided in paragraphs (b) through (d) 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.
§ 221.55   What evidence is admissible at the hearing?
(a) General. (1) Subject to the provisions of § 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.
(b) Objections. Any party objecting to the admission or exclusion of evidence must concisely state the grounds. A ruling on every objection must appear in the record.
§ 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.
§ 221.57   Who has the burden of persuasion, and what standard of proof applies?
(a) Any party who has filed a request for a hearing has the burden of persuasion with respect to the issues of material fact raised by that party.
(b) The standard of proof is a preponderance of the evidence.
§ 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 § 221.56(b).
§ 221.59   What are the requirements for post-hearing briefs?
(a) General. (1) Each party may file a post-hearing brief within 15 days after the close of the hearing.
(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.
§ 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 § 221.58; or
(2) 120 days after the effective date stated in the referral notice under § 221.26(c)(4), 7 CFR 1.626(c)(4), or 43 CFR 45.26(c)(4).
(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 accepted or rejected.
(c) Service. Promptly after issuing his or her decision, the ALJ must:
(1) Serve the decision on each party to the hearing;
(2) Prepare a list of all documents that constitute the complete record for the hearing process (including the decision) and certify that the list is complete; and
(3) Forward to FERC the complete record for the hearing process, along with the certified list prepared under paragraph (c)(2) of this section, for inclusion in the record for the license proceeding. Materials received in electronic form, e.g., as attachments to electronic mail, should be transmitted to FERC in electronic form. However, for cases in which a settlement was reached prior to a decision, the entire record need not be transmitted to FERC. In such situations, only the initial pleadings (hearing requests with attachments, any notices of intervention and response, answers, and referral notice) and any dismissal order of the ALJ need be transmitted.
(d) Finality. The ALJ's decision under this section with respect to the disputed issues of material fact will not be subject to further administrative review. 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. 825 l (b).
§ 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 § 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 delivered or sent to each license party and FERC, using:
(i) One of the methods of service in § 221.13(c); or
(ii) Regular mail.
(2) The provisions of § 221.13(d) regarding a certificate of service apply to service under this subpart.
§ 221.71   How do I propose an alternative?
(a) General. To propose an alternative condition or prescription, you must:
(1) Be a license party; and
(2) File a written proposal with the Office of Habitat Conservation, at the address set forth in § 221.2:
(i) For a case under § 221.1(d)(1), within 30 days after NOAA files a preliminary condition or prescription with FERC; or
(ii) For a case under § 221.1(d)(2), within 60 days after NOAA files a proposed condition or prescription with FERC.
(b) Content. Your proposal must include:
(1) A description of the alternative, in an equivalent level of detail to NOAA'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 NMFS;
(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.
§ 221.72   May I file a revised proposed alternative?
(a) Within 20 days after issuance of the ALJ's decision under § 221.60, you may file with the Office of Habitat Conservation, at the address set forth in § 221.2, a revised proposed alternative condition or prescription if:
(1) You previously filed a proposed alternative that met the requirements of § 221.71; and
(2) Your revised proposed alternative is designed to respond to one or more findings of fact by the ALJ.
(b) Your revised proposed alternative must:
(1) Satisfy the content requirements for a proposed alternative under § 221.71(b); and
(2) Identify the specific ALJ finding(s) to which the revised proposed alternative is designed to respond and how the revised proposed alternative differs from the original alternative.
(c) Filing a revised proposed alternative will constitute a withdrawal of the previously filed proposed alternative.
§ 221.73   When will NOAA file its modified condition or prescription?
(a) Except as provided in paragraph (b) of this section, if any license party proposes an alternative to a preliminary condition or prescription under § 221.71, NOAA will do the following within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c):
(1) Analyze under § 221.74 any alternative condition or prescription proposed under § 221.71 or 221.72; and
(2) File with FERC:
(i) Any condition or prescription that NOAA adopts as its modified condition or prescription; and
(ii) Its analysis of the modified condition or prescription and any proposed alternative under § 221.74(c).
(b) If NOAA needs additional time to complete the steps set forth in paragraphs (a)(1) and (a)(2) of this section, it will so inform FERC within 60 days after the deadline for filing comments on FERC's draft NEPA document under 18 CFR 5.25(c).
§ 221.74   How will NOAA analyze a proposed alternative and formulate its modified condition or prescription?
(a) In deciding whether to accept an alternative proposed under § 221.71 or 221.72, NOAA must consider evidence and supporting material provided by any license party or otherwise reasonably available to NOAA, including:
(1) Any evidence on the implementation costs or operational impacts for electricity production of the proposed alternative;
(2) Any comments received on NOAA's preliminary condition or prescription;
(3) Any ALJ decision on disputed issues of material fact issued under § 221.60 with respect to the preliminary condition or prescription;
(4) Comments received on any draft or final NEPA documents; and
(5) The license party's proposal under § 221.71 or § 221.72.
(b) NOAA must accept a proposed alternative if NOAA determines, based on substantial evidence provided by any license party or otherwise reasonably available to NOAA, that the alternative:
(1) Will, as compared to NOAA'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 NMFS's preliminary prescription.
(c) For purposes of paragraphs (a) and (b) of this section, NOAA will consider evidence and supporting material provided by any license party by the deadline for filing comments on FERC's NEPA document under 18 CFR 5.25(c).
(d) When NOAA files with FERC the condition or prescription that NOAA adopts as its modified condition or prescription under § 221.73(a)(2), it must also file:
(1) A written statement explaining:
(i) The basis for the adopted condition or prescription;
(ii) If NOAA is not accepting any pending alternative, its reasons for not doing so; and
(iii) If any alternative submitted under § 221.71 was subsequently withdrawn by the license party, that the alternative was withdrawn; and
(2) Any study, data, and other factual information relied on that is not already part of the licensing proceeding record.
(e) The written statement under paragraph (d)(1) of this section must demonstrate that NOAA gave equal consideration to the effects of the condition or prescription adopted and any alternative not accepted 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.
§ 221.75   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.