Vol. 80 Tuesday, 

No. 61 March 31, 2015 

Part II 

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 

Resource Agency Hearings and Alternatives Development Procedures in 

Hydropower Licenses; Interim Rule 


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17156 Federal Register / Vol. 80, No. 61 / Tuesday, March 31, 2015 / Rules and Regulations 

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.: DOI–2015–0001] 

RINs 0596–AC42, 1090–AA91, and 0648– 

AU01 

Resource Agency Hearings and 

Alternatives Development Procedures 

in Hydropower Licenses 

AGENCIES: Office of the Secretary, 

Agriculture; Office of the Secretary, 

Interior; National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Revised interim rules with 

request for comment. 

SUMMARY: The Departments of 

Agriculture, the Interior, and Commerce 

are jointly revising the procedures they 

established in November 2005 for 

expedited trial-type hearings required 

by the Energy Policy Act of 2005. The 

hearings are conducted to expeditiously 

resolve disputed issues of material fact 

with respect to conditions or 

prescriptions developed for inclusion in 

a hydropower license issued by the 

Federal Energy Regulatory Commission 

under the Federal Power Act. The 

Departments are also revising the 

procedures for considering alternative 

conditions and prescriptions submitted 

by a party to a license proceeding. 

DATES:

Effective date: These rules are 

effective on April 30, 2015. 

Comment date: You should submit 

your comments by June 1, 2015. 

ADDRESSES: You may submit comments, 

identified by any of the Regulation 

Identifier Numbers (RINs) shown above 

(0596–AC42, 1090–AA91, or 0648– 

AU01), by either 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. 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 Hearings and Appeals, 801 

N. Quincy Street, Suite 300, Arlington, 

Virginia 22203; or 

c. Chief, Habitat Protection Division, 

Office of Habitat Conservation, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910. 

FOR FURTHER INFORMATION CONTACT: 

Washington Office Director, Lands and 

Realty Management, Forest Service, U.S. 

Department of Agriculture, 202–205– 

1769; John Rudolph, Solicitor’s Office, 

Department of the Interior, 202–208– 

3553; or Melanie Harris, Office of 

Habitat Conservation, National Marine 

Fisheries Service, 301–427–8636. 

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. Executive Summary 

The Departments of Agriculture, the 

Interior, and Commerce (the 

Departments) are revising the interim 

final rules they published jointly in 

November 2005 to implement section 

241 of the Energy Policy Act of 2005. 

That section created additional 

procedures applicable to conditions or 

prescriptions that a Department 

develops for inclusion in a hydropower 

license issued by Federal Energy 

Regulatory Commission (FERC). 

Specifically, section 241 amended 

sections 4 and 18 of the Federal Power 

Act (FPA) to provide for trial-type 

hearings on disputed issues of material 

fact with respect to a Department’s 

conditions or prescriptions; and it 

added a new section 33 to the FPA, 

allowing parties to propose alternative 

conditions and prescriptions. 

The Departments are promulgating 

three substantially similar rules—one 

for each agency—with a common 

preamble. The rules and preamble 

address a few issues that were left open 

in the 2005 rulemaking, such as who 

has the burden of proof in a trial-type 

hearing and whether a trial-type hearing 

is an administrative remedy that a party 

must exhaust before challenging 

conditions or prescriptions in court. In 

addition, the rules and preamble 

respond to the public comments we 

received on the 2005 rules, and they 

make a number of changes reflecting our 

experience in implementing those rules. 

The rules are being made effective as 

revised interim final rules, so that 

interested parties and the agencies may 

avail themselves of improvements being 

made to the procedures adopted in 

2005. The Departments are also 

requesting comments on additional 

ways the rules can be improved. 

A detailed explanation of the 

revisions is provided below, but some of 

the highlights of the revised rules are as 

follows: 

• The rules clarify the availability of 

the trial-type hearing and alternatives 

processes in the situation where a 

Department has previously reserved its 

authority to include conditions or 

prescriptions in a hydropower license, 

and it now decides to exercise that 

authority. The rules also extend the 

period of time for a party to request a 

hearing or submit an alternative in that 

situation. 

• The rules extend a few of the 

deadlines in the 2005 rules, while not 

adopting some commenters’ 

recommendations that the Departments 

significantly expand the hearing 

schedule. Specifically, parties are given 

5 additional days to take each of the 

following steps: file a notice of 

intervention and response; update their 

witness and exhibit lists and submit 

written testimony following discovery; 

prepare for the hearing; and submit 

post-hearing briefs. 

• The rules allow for a stay, not to 

exceed 120 days, to facilitate settlement 

negotiations among the parties. As 

necessary, the parties would coordinate 

with FERC regarding any effect on the 

time frame established for the license 

proceeding. 

• The rules adopt the unanimous 

position of the Administrative Law 

Judges (ALJs) in the cases adjudicated to 

date, that the party requesting a hearing 

has the burden of proof. 

• The rules accept the argument of 

some commenters that the ALJ decision 

can come after the statutory 90-day 

period specified for the hearing itself. 

However, the rules require that the 

decision come no later than 120 days 

after the case was referred to the ALJ, to 

keep the whole process within FERC’s 

time frame for the license proceeding. 

• The rules allow a party who has 

participated in a trial-type hearing and 

has filed an alternative condition or 

prescription to submit a revised 

alternative within 20 days after the ALJ 

decision, based on the facts as found by 

the ALJ. 

• The rules clarify that FPA section 

33 requires a Department to prepare an 

equal consideration statement only 


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when a party has submitted an 

alternative condition or prescription. 

• Finally, the preamble provides 

additional guidance on the term 

‘‘disputed issues of material fact.’’ 

II. Public Comments 

You may submit your comments by 

either 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, 

we will consider promulgation of 

further revised final rules. 

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. 

Before including your personal 

address, telephone number, email 

address, or other personal identifying 

information in your comment, you 

should be aware that your entire 

comment—including your personal 

identifying information—may be made 

publicly available at any time. While 

you can ask us in your comments to 

withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

III. Background 

A. Interim Final Rules 

On November 17, 2005, at 70 FR 

69804, the Departments jointly 

published interim final rules 

implementing section 241 of the Energy 

Policy Act of 2005 (EPAct), Public Law 

109–58. Section 241 of EPAct amended 

FPA sections 4(e) and 18, 16 U.S.C. 

797(e), 811, to provide that any party to 

a license proceeding before FERC 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 mandatory 

conditions or prescriptions developed 

by one or more of the three Departments 

for inclusion in a hydropower license. 

EPAct section 241 also added a new 

FPA section 33, 16 U.S.C. 823d, 

allowing any party to the license 

proceeding to propose an alternative 

condition or prescription, and 

specifying the consideration that the 

Departments must give to such 

alternatives. 

The interim final rules were made 

immediately effective, but a 60-day 

comment period was provided for the 

public to suggest changes to the interim 

regulations. The Departments stated in 

the preamble that, based on the 

comments received and the initial 

results of implementation, they would 

consider publication of revised final 

rules. Since that time, the Departments 

have gained experience under the 

interim regulations necessary to 

properly evaluate the comments 

received, and have developed these 

revised interim final rules. 

The November 17, 2005, preamble to 

the interim final rules contains 

additional background information that 

the reader may wish to consult 

concerning EPAct, the FPA, FERC’s 

integrated licensing process (ILP), the 

trial-type hearing process, and the 

alternative conditions and prescriptions 

process. 

B. Comments Received 

The Departments received substantive 

comments on the interim final rules 

from the following organizations: 

• American Public Power 

Association, Sacramento Municipal 

Utility District, and Public Utility 

District No. 1 of Snohomish County, 

Washington; 

• Association of California Water 

Agencies; 

• Center for Biological Diversity 

(CBD); 

• Edison Electric Institute and 

National Hydropower Association (EEI/ 

NHA); 

• Georgia Department of Natural 

Resources, Wildlife Resources Division; 

• Greater Yellowstone Coalition 

(GYC); 

• Hoopa Valley Tribe (HVT); 

• Hydropower Reform Coalition 

(HRC); 

• Idaho Rivers United; 

• Los Angeles Department of Water 

and Power 

• Ohio Department of Natural 

Resources; 

• PacifiCorp; 

• Ponderay Newsprint Company; 

• Power Authority of the State of New 

York; 

• Public Utility District No. 1 of Pend 

Oreille County, Washington; 

• Public Utility District No. 2 of Grant 

County, Washington; and 

• Southern Company. 

The Departments also received about 

3,000 nearly identical letters from 

individuals expressing concern about 

the environmental effects of the new 

procedures. Taken together, the 

comments were extensive and very 

helpful to the Departments in 

determining what changes were needed 

to the interim regulations. Responses to 

the comments are provided below in the 

section-by-section analysis of the 

revised regulations. 

C. Litigation Challenging the Interim 

Final Rules 

Following publication of the interim 

final rules, lawsuits were filed 

challenging certain aspects of the 

rulemaking. 

In American Rivers v. U.S. 

Department of the Interior, 2006 WL 

2841929 (W.D. Wash. 2006), seven nongovernmental organizations sued the 

three Departments, alleging that (1) 

publication of the interim final rules 

without prior notice and comment 

violated the Administrative Procedure 

Act (APA), 5 U.S.C. 553, and (2) the 

rules were impermissibly retroactive. In 

its October 3, 2006, decision, the court 

rejected plaintiffs’ arguments, holding 

that (1) the rules were exempt from the 

APA’s notice and comment 

requirements because they were 

procedural and interpretative, and (2) 

the rules did not result in an 

impermissible retroactive application of 

EPAct. 

In Public Utility District No. 1 of Pend 

Oreille County, Washington v. U.S. 

Department of the Interior, No. 

1:06cv00365 (D.D.C., filed Mar. 1, 2006), 

a licensee challenged the decision of the 

Departments in the interim final rules to 

limit the trial-type hearing and 

alternatives processes to license 

proceedings in which the license had 

not been issued as of November 17, 

2005. FERC had issued a licensing order 

to the plaintiff in July 2005, but the 

plaintiff had sought rehearing from 

FERC and therefore argued that its 

license proceeding was still pending as 

of November 17, 2005. A nearly 

identical suit was filed the following 

month, Ponderay Newsprint Co. v. U.S. 

Department of the Interior, No. 

1:06cv00768 (D.D.C., filed Apr. 26, 

2006), and the two cases were 

consolidated. In March 2010, the 

plaintiffs voluntarily dismissed their 

lawsuits as part of a comprehensive 

settlement agreement with the 

Departments of Agriculture and the 

Interior. 

D. Other Significant Litigation 

Another notable legal development 

since publication of the interim final 

rule was the issuance of the decision in 

City of Tacoma, Washington v. Federal 

Energy Regulatory Comm’n, 460 F.3d 53 

(D.C. Cir. 2006). The case involved 

several consolidated petitions 

challenging the license issued by FERC 

in 1998 (and amended in 2005) for the 


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1FERC initially accepted and proposed to 

incorporate all of the NMSP conditions into the 

draft project license. See Finavera Renewables 

Ocean Energy, Ltd., 121 FERC ¶ 61,288 (2007). On 

rehearing, FERC reversed itself, stating that it did 

not believe the sanctuary constituted a 

‘‘reservation’’ under the FPA, although it continued 

to include most of the NMSP conditions in the 

license. See 122 FERC ¶ 61,248 (March 20, 2008). 

On May 19, 2008, FERC granted NOAA’s request for 

rehearing on the revised order, but on rehearing 

declined to reverse its determination that a 

sanctuary does not constitute a ‘‘reservation’’ under 

the FPA. See, 124 FERC ¶ 61,063 (July 18, 2008). 

No Court of Appeals has addressed these issues. 

Cushman Project located in the State of 

Washington. While a detailed 

discussion of the court’s multiple 

holdings is beyond the scope of this 

preamble, the Departments note that the 

decision provides useful guidance in the 

implementation of Federal agencies’ 

various authorities under the FPA, 

including those addressed in these 

regulations. 

For example, in one holding, the court 

discussed the relationships among the 

delegated authorities possessed by FERC 

and the Departments, respectively, 

under the FPA. Noting that the 

conditioning authority conferred on the 

Secretaries by section 4(e) is mandatory 

and independent of FERC’s authorities, 

the court stated, 

Though FERC makes the final decision as to 

whether to issue a license, FERC shares its 

authority to impose license conditions with 

other federal agencies. To the extent Congress 

has delegated licensing authority to agencies 

other than FERC, those agencies, and not 

FERC, determine how to exercise that 

authority, subject of course to judicial 

review. 

460 F.3d at 65 (citations omitted). The 

court held that, while the Departments 

‘‘should certainly make every effort to 

cooperate and to coordinate their efforts, 

because license conditions imposed by 

one agency may alter the conditions the 

other agency deems necessary,’’ FERC 

may not unilaterally place restrictions 

(such as a strict time limit) on the 

exercise of the other Departments’ 

authorities. Id. In another holding, the 

court adopted an expansive 

interpretation of the section 4(e) 

requirement that a project and 

associated license be located ‘‘within’’ a 

reservation. Id. at 65–66. 

E. Request for Additional Comment 

Period 

In July 2009, NHA and HRC sent a 

joint letter to the three Departments, 

asking that an additional 60-day 

comment period be provided before 

publication of final rules. The 

organizations noted that they and their 

members had gained extensive 

experience with the interim final rules 

since their initial comments were 

submitted in January 2006, and they 

now have additional comments to offer 

on ways to improve the trial-type 

hearing and alternatives processes. 

The Departments have decided to 

grant NHA and HRC’s request. Instead 

of publishing final rules, we are 

publishing these revised interim final 

rules with a 60-day comment period. 

Under this approach, we are putting 

into effect several improvements to the 

November 2005 interim final rules, 

while providing the public with 

updated information on which to base 

additional comments, including our 

responses to the prior comments we 

received. 

F. Government Accountability Office 

(GAO) Report 

In September 2010, GAO released 

Report GAO–10–770 entitled, 

‘‘Hydropower Licensing: Stakeholders’ 

Views on the Energy Policy Act Varied, 

but More Consistent Information 

Needed.’’ The report analyzed 

implementation of EPAct section 241 

since 2005 and made two 

recommendations. The first 

recommendation was that the 

Secretaries of Agriculture, Commerce, 

and the Interior 

[d]irect cognizant officials, where the agency 

has not adopted a proposed alternative 

condition or prescription, to include in the 

written statement filed with FERC (1) its 

reasons for not doing so, in accordance with 

the interim rules and (2) whether a proposed 

alternative was withdrawn as a result of 

negotiations and an explanation of what 

occurred subsequent to the withdrawal. . . . 

GAO Report at 19. 

As noted by GAO, the interim final 

rules already require each Department 

to file with FERC, along with any 

modified condition or prescription the 

Department adopts, a statement 

explaining (i) the basis for the modified 

condition or prescription and (ii), if the 

Department is not adopting a proposed 

alternative, its reasons for not doing so. 

7 CFR 1.673(c); 43 CFR 45.73(c); 50 CFR 

221.73(c). 

However, the Departments pointed 

out in their comments to GAO that, in 

some cases, a license party that 

submitted an alternative condition or 

prescription later withdraws it, often as 

a result of negotiations with the 

Department. In cases where there is no 

longer an alternative to consider 

because a proposed alternative has been 

voluntarily withdrawn, the statutory 

requirement to provide a reason for not 

adopting an alternative does not apply. 

The Departments’ written statement 

will, however, include an explanatory 

notation indicating that a proposed 

alternative was voluntarily withdrawn. 

GAO’s second recommendation was 

that the Departments ‘‘[i]ssue final rules 

governing the use of the section 241 

provisions after providing an additional 

period for notice and an opportunity for 

public comment and after considering 

their own lessons learned from their 

experience with the interim rules.’’ 

GAO Report at 19. As explained above, 

we are publishing these revised interim 

final rules with a 60-day comment 

period, as requested by NHA and HRC 

and as recommended by GAO. 

G. Other Developments Since Release of 

Interim Final Rules 

In developing the interim final 

regulations, the Departments anticipated 

that the Department of Commerce 

involvement in licensing proceedings 

under the FPA would be limited to 

issuance of fishway prescriptions under 

FPA section 18. This was consistent 

with Commerce’s traditional experience 

in implementing the FPA. The 

Commerce regulations therefore 

referenced only the National Marine 

Fisheries Service (NMFS) and section 18 

of the Act. 

However, in the years since 

promulgation of the interim final 

regulations, alternative energy projects 

that would use new technologies to 

harness tidal and wave energy have 

been increasingly proposed for 

development. As applicants have moved 

into the marine environment in 

proposing projects to be licensed by 

FERC, impacts not traditionally 

associated with licenses under the FPA 

have emerged. For example, projects 

have been proposed within areas 

designated as National Marine 

Sanctuaries. 

These developments have necessarily 

required broader interest and 

involvement in the licensing process 

throughout the Department of 

Commerce, including within the 

National Marine Sanctuary Program 

(NMSP). In 2006, in response to a 

proposal to site a wave energy project 

within the Olympic Coast National 

Marine Sanctuary, NMSP filed 

conditions with FERC under FPA 

section 4(e) to address impacts of the 

proposed Makah Bay Offshore Wave 

Pilot Project (Project No. 12751–001, 

applicant Finavera Renewables Ocean 

Energy, Ltd.). It is likely that the interest 

and involvement of Commerce agencies 

beyond NMFS will continue and will 

include the need to address impacts 

other than to fish migration under 

section 18.1

While the wording of the current 

regulations does not foreclose issuance 

of such conditions, and the procedures 

of EPAct would be available under the 


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current regulations where such 

conditions are issued, the Departments 

believe the regulations should be 

changed to expressly apply to those 

situations. Therefore, Commerce is 

revising its regulations to make clear 

that any Commerce agency that 

identifies a basis to issue conditions 

under section 4(e) will be subject to 

these regulations. Currently, NMSP is 

the only known such agency. 

IV. Section-by-Section Analysis 

The following discussion explains the 

changes made to the regulations 

published in November 2005 and 

provides the Departments’ response to 

the comments received. Regulations that 

have not been changed and that were 

not the subject of public comments are 

not discussed. The reader may wish to 

consult the section-by-section analysis 

in the interim final rules for additional 

explanation of all the regulations. 

Three separate versions of the revised 

interim final regulations are provided, 

one version each for Agriculture, 

Interior, and Commerce. The structure 

and content of the regulations are 

substantially similar, but there are 

variations, such as 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, 

while Interior and Commerce may 

develop either conditions or 

prescriptions 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. 

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? 

Paragraphs (a)(1)–(2) of these sections 

in the interim final rules provided that 

the trial-type hearing process in these 

regulations applies to mandatory 

conditions and prescriptions developed 

by a Department under FPA section 4(e) 

or 18 and does not apply to 

recommendations that a Department 

may submit to FERC under FPA section 

10(a) or (j). The Departments have 

expanded paragraph (a)(2) in the final 

rules to exclude more generally 

provisions that a Department may 

submit to FERC under any authority 

other than FPA section 4(e) or 18. Such 

provisions would include 

recommendations under section 10(a) or 

(j), terms and conditions under section 

30(c), or any other provisions not 

submitted under section 4(e) or 18. 

Commenters raised four sets of issues 

concerning the applicability of the 

EPAct hearing and alternatives 

processes, as set forth in paragraphs (c) 

and (d) of these regulations. 

Cases pending on November 17, 2005. 

Paragraph (d)(1) provides that the 

regulations apply 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. Some 

commenters contended that applying 

the regulations to proceedings where 

preliminary or ‘‘final’’ conditions or 

prescriptions had been submitted before 

November 17, 2005, would be 

disruptive, would impose an undue 

burden on stakeholders, and would 

constitute an impermissible retroactive 

application of the EPAct provisions. 

Others argued that claims of 

retroactivity are groundless, since 

proposed conditions and prescriptions 

are not final or closed until FERC has 

made its licensing decision. 

The Departments agree that applying 

the EPAct provisions to licensing 

proceedings pending at the time of 

enactment does not constitute 

retroactive application. The same 

allegation of retroactive application was 

considered and rejected by the court in 

American Rivers. There, the court held 

that the interim regulations did not have 

an impermissible retroactive impact, 

noting that conditions and prescriptions 

that have not been included in a final 

FERC license cannot be regarded as 

completed events. Paragraph (d)(1) 

therefore remains substantially 

unchanged. 

Reserved authority. On occasion, a 

Department does not submit conditions 

or prescriptions for inclusion in a 

license during the license proceeding, 

but reserves the authority to do so at a 

later point, e.g., if conditions change or 

the Department obtains additional 

information. The interim regulations 

provided that, if the Department notifies 

FERC that it is reserving its authority, 

the hearing and alternatives processes 

would be available to the license parties 

if and when the Department 

subsequently exercised its reserved 

authority. 

Some commenters asserted that these 

processes should be available, not only 

when the Department subsequently 

exercises reserved conditioning or 

prescriptive authority, but also when 

the Department initially decides to 

reserve its authority. According to these 

commenters, the reservation of authority 

is a decision not to impose a condition 

or prescription, with consequences for 

natural resources, and should be subject 

to the hearing and alternatives 

processes. 

Under the terms of EPAct, license 

applicants and other parties are entitled 

to trial-type hearings with respect to 

conditions or prescriptions that a 

Department deems necessary. Similarly, 

the opportunity to propose an 

alternative arises when the Department 

deems a condition or prescription to be 

necessary. Thus, under EPAct, it is only 

when a Department affirmatively 

exercises its discretion to mandate a 

condition or prescription that the 

hearing and alternatives processes are 

triggered. Allowing for trial-type 

hearings and alternatives when the 

agencies have not exercised this 

authority would be both inconsistent 

with the legislation and an inefficient 

use of the Departments’ resources. 

Consequently, the revised interim final 

regulations continue to provide that the 

hearing and alternatives processes are 

available only when a Department 

submits a preliminary condition or 

prescription to FERC, either during the 

initial licensing proceeding or 

subsequently through the exercise of 

reserved authority. 

Exercise of reserved authority. Other 

commenters noted that, with respect to 

the exercise of reserved authority, the 

language of the interim regulations 

appeared to limit the availability of 

these processes to a Department’s 

exercise after November 17, 2005, of an 

authority it reserved on or after that 

date. They argued that the processes 

should be equally available to a 

Department’s exercise after November 

17, 2005, of an authority it reserved 

before that date. The Departments agree 

that Congress intended the hearing and 

alternatives processes to apply to any 

case in which a Department issues 

mandatory conditions or prescriptions 

on or after the date of EPAct’s 

enactment. Paragraph (c) has been 

revised and a new paragraph (d)(2) has 

been added to clarify this point. Interim 

paragraph (d)(2) has been deleted as no 

longer needed, for the reasons explained 

below in connection with 7 CFR 1.604, 

43 CFR 45.4, and 50 CFR 221.4. 

Exhaustion of administrative 

remedies. Several parties commented 

that utilizing EPAct’s trial-type hearing 

and alternatives processes should not be 

a condition precedent to seeking 

appellate court review of mandatory 


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conditions and prescriptions. According 

to these commenters, the failure to 

request a trial-type hearing on disputed 

issues of material fact or to propose an 

alternative should not be considered a 

failure to exhaust administrative 

remedies. 

Section 241 of EPAct does not itself 

contain an express exhaustion 

requirement, and there have been no 

court decisions addressing the issue of 

exhaustion in the context of EPAct trialtype hearings to date. Whether the 

doctrine of exhaustion applies to a given 

claim will be determined by the court 

based on the specific circumstances 

involved, such as whether any 

exhaustion provision from another 

statute applies, the nature of the claim 

being raised, and the applicability of 

any exhaustion defenses. 

The Departments note that license 

parties have ample opportunities to 

provide input into the processes for 

developing mandatory conditions and 

prescriptions. In addition to the trialtype hearing and alternatives processes, 

the FERC licensing process provides 

opportunities for parties to comment on 

a Department’s preliminary conditions 

or prescriptions, and on FERC’s 

environmental assessment or draft 

environmental impact statement that 

discusses such preliminary conditions 

or prescriptions, See, e.g., 18 CFR 

5.23(a), 5.24(b)–(c), 5.25(b)–(c). 

Presenting information and concerns to 

the Departments well before the court of 

appeals review is the best way to ensure 

that the Departments are aware of the 

concerns and have an opportunity to 

consider them in formulating their 

conditions and prescriptions. 

No changes have been made to the 

regulations in response to the comments 

on this issue. 

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? 

These sections define the meaning of 

various terms used in the regulations. 

They are unchanged from the interim 

regulations, except for two address 

changes and the following two 

modifications. 

First, a definition of ‘‘modified 

condition or prescription’’ has been 

added, as recommended by a 

commenter. 

Second, the definition of ‘‘preliminary 

condition or prescription’’ has been 

revised by changing ‘‘a’’ to ‘‘any’’ in the 

first line and by omitting the citations 

to FERC’s regulations in the last line. 

While the Departments make every 

effort to submit their preliminary 

conditions and prescriptions in 

accordance with the requirements in 

FERC’s regulations, circumstances on 

occasion may necessitate the 

submission of a preliminary condition 

or prescription after FERC’s regulatory 

deadline. See City of Tacoma, discussed 

under section II.D. of this preamble. In 

such instances, the license parties 

should still have an opportunity to 

request a trial-type hearing as to 

disputed issues of material fact and to 

submit alternative conditions or 

prescriptions. 

Some commenters suggested that the 

Departments clarify the definition of 

‘‘material fact’’ in these sections to 

expressly exclude allegations of law or 

policy, or any argument directed at 

whether a preliminary condition or 

prescription should be adopted, 

modified, or rejected, or whether a 

proposed alternative should be adopted 

or rejected. The comments cited several 

specific examples of issues that parties 

have sought to raise in trial-type hearing 

proceedings that the commenters 

considered inappropriate. 

The Departments agree that the 

commenters accurately described both 

the intent of the statute and interim 

regulations and the experience to date 

in trial-type hearing proceedings. The 

regulations clearly prohibit an ALJ from 

rendering a conclusion on the ultimate 

question of whether a condition or 

prescription should be affirmed, 

modified, or withdrawn, because that 

conclusion is reserved to the Secretary’s 

discretion and expert judgment. 7 CFR 

1.660(b)(3), 43 CFR 45.60(b)(3), 50 CFR 

221.60(b)(3). Therefore, the November 

2005 preamble made clear that issues of 

law or policy are not appropriate for 

resolution in a trial-type hearing. 70 FR 

at 69809. 

The Departments do not find it 

necessary to change the regulatory text 

on this point but are including an 

extended preamble discussion of 

‘‘disputed issues of material fact,’’ 

which provides further clarification and 

draws from the Departments’ experience 

to date under the rules. See section 

IV.A. below. 

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? 

Some commenters requested that the 

regulations allow extensions of time for 

filing hearing requests, notices of 

intervention, or answers upon a 

showing of extraordinary circumstances. 

The interim final rules provided that no 

extension of time could be granted for 

these particular filings. 7 CFR 1.603(b), 

43 CFR 45.3(b), 50 CFR 221.3(b). The 

revised interim final regulations do not 

incorporate these requested changes, but 

we have extended the time for filing a 

notice of intervention and response (see 

7 CFR 1.622, 43 CFR 45.22, 50 CFR 

221.22). 

As noted in the preamble to the 

interim final rules, strict time 

limitations are necessary to ensure 

timely completion of the hearing and 

alternatives processes and to avoid 

delays in the FERC licensing 

proceeding. 70 FR at 69809. Parties with 

a significant interest in the proceeding 

will presumably have already 

participated in the pre-filing 

consultation, scoping, and study 

processes for at least 3 years prior to the 

submission of preliminary conditions or 

prescriptions. A substantial and 

voluminous record will also have been 

developed during that time. Most 

parties should therefore be sufficiently 

prepared to respond to the Departments’ 

preliminary conditions or prescriptions 

and prepare a hearing request or notice 

of intervention and response within the 

allotted time, without the need for 

extensions. 

The preamble to the interim rules also 

explained that, as a practical matter, no 

ALJ would be available prior to referral 

to rule on an extension motion. 

According to the commenters, an ALJ is 

not necessary to rule on extension 

requests and ‘‘the Departments could 

make such a determination during their 

initial adequacy review of the hearing 

request or alternate condition.’’ HRC 

Comments at 41. The Departments 

disagree. These rules establish stringent 

time frames to which all parties must 

abide, absent an extension granted by a 

neutral and impartial ALJ or a provision 

of these rules. 

The commenters further observed that 

the hearing request imposes a 

significant burden on all parties that 

should be avoided if there is an 

available resolution that simply needs 

time to succeed. A new provision for a 

limited stay of the proceedings to allow 

settlement negotiations should provide 

an opportunity for such resolution. See 

7 CFR 1.624, 43 CFR 45.24, 50 CFR 

221.24, discussed below. 


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2Timely hearing requests filed by PacifiCorp with 

respect to its Condit Hydroelectric Project remain 

pending before Interior and Commerce. The 

Departments have notified PacifiCorp that they will 

establish a time frame for the hearing process if and 

when FERC reinstates the proceeding to evaluate 

PacifiCorp’s 1991 license application. 

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? 

These sections from the interim 

regulations dealing with pending 

applications have been removed and 

replaced in the revised interim final 

regulations. They applied to license 

proceedings in which (1) a Department 

had filed a preliminary condition or 

prescription before the November 17, 

2005, effective date of the regulations, 

and (2) FERC had not issued a license 

as of that date. They provided that 

hearing requests and alternatives in 

such cases would be due on or before 

December 19, 2005. All license parties 

in such proceedings that wished to 

request a hearing or submit alternatives 

by the latter date have done so, and all 

but one of those cases has since been 

resolved.2 Therefore, these sections are 

no longer needed; their removal does 

not represent a substantive change to 

the regulations. 

Some commenters raised concerns 

that there would be no comment 

opportunity on alternative conditions 

and prescriptions in pending cases 

where review under the National 

Environmental Policy Act (NEPA) had 

already been completed when the 

interim final rules were issued. They 

suggested that, for such cases, the 

regulations require reissuance or 

supplementation of the NEPA 

document. Under 7 CFR 1.674, 43 CFR 

45.74, and 50 CFR 221.74, the 

Department must consider evidence and 

supporting material provided by any 

license party or otherwise reasonably 

available to it, including information on 

the environmental effects of conditions, 

prescriptions, and alternatives. On a 

case-by-case basis, FERC should 

consider whether supplemental NEPA 

analysis is appropriate under 40 CFR 

1502.9. 

7 CFR 1.604 What deadlines apply to 

the trial-type hearing and alternatives 

processes? 

43 CFR 45.4 What deadlines apply to 

the trial-type hearing and alternatives 

processes? 

50 CFR 221.4 What deadlines apply to 

the trial-type hearing and alternatives 

processes? 

In place of the removed interim 

regulations dealing with pending 

applications (discussed above), the 

revised interim final regulations include 

tables summarizing the steps in the 

trial-type hearing and alternatives 

processes and indicating the deadlines 

generally applicable to each step. The 

regulations state that, if the deadlines in 

the tables are in any way inconsistent 

with the deadlines as set by other 

sections of the regulations or by the ALJ, 

the deadlines as set by those other 

sections or by the ALJ control. 

For example, under 7 CFR 1.603, 43 

CFR 45.3, or 50 CFR 221.3, a deadline 

as shown in the table may be extended 

because it falls on a Saturday, Sunday, 

or holiday, or because the ALJ has 

granted a motion to extend it. See also 

7 CFR 1.631(c), 43 CFR 45.31(c), and 50 

CFR 221.31(c). The deadlines in the 

table may also be extended if the 

hearing requester and the Department 

agree to a stay to allow for settlement 

negotiations under 7 CFR 1.624, 43 CFR 

45.24, or 50 CFR 221.24, discussed 

below. 

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? 

Three minor changes have been made 

to these sections regarding 

representation of a party in the hearing 

process. Environmental organizations 

objected that the regulations did not 

allow them to designate one 

organization to represent another, as 

they have done in the past. In response 

to this comment, paragraph (b)(3) has 

been revised to change ‘‘officer or fulltime employee’’ to ‘‘officer or agent,’’ 

leaving it up to an organization to 

decide what type of agent it wishes to 

designate to represent its interests. 

Paragraph (c) has been revised to 

clarify that an individual representing 

himself or herself must file a notice or 

appearance, as must any other 

representative of a party. 

And a new paragraph (d) has been 

added to expressly authorize the 

administrative law judge (ALJ) to 

require a party that has more than one 

representative to designate a lead 

representative for service of documents 

under 7 CFR 1.613, 43 CFR 45.13, or 50 

CFR 221.13. This authority was implicit 

in the interim rules. 

7 CFR 1.611 What are the form and 

content requirements for documents 

under §§ 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? 

Two minor changes have been made 

to these regulations. Paragraph (a)(2) has 

been revised to state that service copies 

of a document may be printed on both 

sides of a page, to save paper. And 

paragraph (a)(4) has been revised to 

increase the minimum font size from 10 

to 11 points to improve readability. 

7 CFR 1.612 Where and how must 

documents be filed? 

43 CFR 45.12 Where and how must 

documents be filed? 

50 CFR 221.12 Where and how must 

documents be filed? 

Paragraph (b) of these regulations has 

been revised to specify that an original 

and two copies of any document must 

be filed with the appropriate office 

under paragraph (a). This change will 

facilitate the expedited hearing process. 

Under paragraph (b)(2), supporting 

materials, which may be burdensome to 

copy, may be submitted in the form of 

a hard-copy original and an electronic 

copy on compact disc or other suitable 

media. 

Several commenters suggested that 

the Departments revise the regulations 

to allow parties to file documents 

electronically, using email or FERC’s 

eFiling system. The Departments agree 

that, in many circumstances, the 

electronic transmission of documents is 

a preferable means of providing 

documents to another party. As a result, 

the revised regulations in 7 CFR 1.613, 

43 CFR 45.13, and 50 CFR 221.13 allow 

for electronic service of documents on a 

party who consents to such service. 

However, the Departments and their ALJ 

offices do not currently have the 

capacity or resources to accept 

electronically and print off the large 

volume of documents typically filed in 

connection with a trial-type hearing. 

The Departments disagree with the 

commenters’ suggestion to use FERC’s 


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eFiling system because EPAct places the 

responsibility of administering the trialtype hearing process exclusively with 

the Departments. In addition, the 

Departments do not believe it is 

advisable to rely for filing on an 

electronic system of another agency over 

which the Departments have no control. 

Given the tight time frames involved, 

any technical problems or other issues 

that rendered FERC’s eFiling system 

unavailable even for a limited time 

could prove disruptive to the trial-type 

hearing process. 

Paragraph (d) dealing with 

nonconforming documents has been 

revised by deleting the second sentence 

concerning minor defects, which had 

stated that parties may be notified of 

‘‘minor’’ technical defects and given a 

chance to correct them. Commenters 

objected that no definition of a ‘‘minor’’ 

defect was provided, thus presenting a 

risk of inconsistent and subjective 

interpretations. Commenters proposed 

the following definition: ‘‘For this 

purpose, ‘minor’ means that the filing is 

substantively in compliance with the 

requirements for the filing.’’ HRC 

comments at 57. 

This proposed definition fails to 

provide additional clarity and has not 

been adopted. Rather than trying to 

catalogue possible defects as ‘‘minor’’ or 

‘‘major,’’ the Departments have deleted 

the second sentence. The revised 

interim final regulation thus puts parties 

on notice that non-conforming 

documents may be rejected, thereby 

helping to ensure compliance with 

technical filing requirements. The form, 

content, and filing requirements in the 

regulations are straightforward and 

clear, and the Departments expect 

compliance for documents to be 

accepted. It remains within the 

Departments’ discretion to determine 

the appropriate remedy for failure to 

comply with these requirements. 

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? 

These regulations have been revised 

in response to comments advocating the 

use of electronic means of service. 

Use of FERC’s service procedures. 

Several commenters proposed that the 

Departments allow parties to use FERC’s 

eService and eSubscription systems to 

ensure a cost-effective and reliable 

means of effectuating service on other 

parties. The Departments have adopted 

this suggestion to a limited extent. 

For service on license parties as 

required under paragraphs (a)(1) and 

(a)(2)(ii) of these sections, the revised 

regulations authorize service under 

FERC’s procedures at 18 CFR 

385.2010(f)(3) for those license parties 

that have agreed to receive electronic 

service. For service on hearing parties 

under paragraph (a)(3), the use of 

FERC’s procedures is not authorized. In 

the Departments’ experience, the 

number of hearing parties generally is 

substantially less than the number of 

license parties. This limited approach 

balances the interests in cost-effective 

means of service on a large number of 

parties with the Departments’ interest in 

retaining control over the 

administration of the trial-type hearing 

process, for which the Departments are 

exclusively responsible under EPAct. 

The latter interest predominates for 

most of the hearing process, when 

service is limited to the much smaller 

number of hearing parties. 

Service by other electronic means. 

Service on either license parties or 

hearing parties is also authorized under 

paragraph (c) of these regulations, 

which has been expanded in two ways. 

First, paragraph (c)(4) has been 

revised in 7 CFR 1.613 and 50 CFR 

221.13 and has been added to 43 CFR 

45.13. Under this paragraph, service 

may be made 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. This 

provision, which is modeled on Rule 

5(b) of the Federal Rules of Civil 

Procedure (FRCP), takes the place of 

former paragraph (c)(4)(ii) both in 7 CFR 

1.613 and 50 CFR 221.13, which 

required the person served by electronic 

mail to acknowledge receipt of the 

document. 

Second, the introductory language in 

paragraph (c) has been revised to allow 

the ALJ to order methods of service 

other than those enumerated in 

paragraphs (c)(1) through (c)(4), upon 

agreement of the parties. 

Service via Internet posting. 

Commenters suggested that the 

Departments allow parties to post 

documents filed in support of a hearing 

request on a Web site to reduce service 

costs associated with those sometimes 

voluminous documents. Other 

commenters suggested that the 

Departments place electronic or scanned 

copies of all materials received during 

the trial-type hearing onto a public 

Internet site to make the documents 

more accessible to other interested 

parties. The Departments do not adopt 

this suggestion due to the time and 

resource constraints during the trialtype hearing. Parties who wish to place 

documents on public Internet sites are 

not prohibited from doing so, but such 

posting will not substitute for service 

under these regulations. 

Timing of service. Commenters 

proposed that the Departments revise 

the regulations to clarify that all served 

documents must arrive by 5 p.m. on the 

filing date. The Departments disagree 

with the commenters’ proposal and 

preserve the requirement established in 

the interim final rules. This requirement 

provides that service is effected when a 

party initiates the transmission of a 

document through one of the specified 

methods of service at the same time the 

document is delivered or sent for filing. 

This requirement ensures that parties 

receive served documents in a costeffective and timely fashion. Indeed, 

unless a document was served by handdelivery or facsimile, the commenters’ 

proposal would require parties to serve 

a document a day or more in advance 

of filing in order to have service copies 

arrive by 5 p.m. on the filing date. This 

would unnecessarily shorten the already 

tight regulatory time frames. 

Service on the Department. Comments 

were received requesting that the 

regulations be clarified with respect to 

timing of service and agency personnel 

to be served. With respect to timing, 

paragraphs (a)(1) through (a)(3) have 

been revised to specify that documents 

to be served must be delivered or sent 

to the other parties at the same time the 

documents are delivered or sent for 

filing. 

With respect to agency personnel to 

be served, the Departments do not 

believe that any changes to the 

regulations are needed. Under 

paragraph (a)(1), a request for a hearing 

must be served on each license party; 

FERC’s service list for the license 

proceeding will identify the persons or 

entities to be served and their addresses. 

Under paragraph (a)(2), a notice of 

intervention and response must be 

served on the Departmental entity that 

developed the preliminary condition or 

prescription; the preliminary condition 

or prescription will identify the persons 

or entities to be served and their 

addresses. Subsequent documents in the 

hearing process will be served on the 

Departmental representatives identified 

in the Department’s answer or notice 

under 7 CFR 1.625, 43 CFR 45.25, and 

50 CFR 221.25. 


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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? 

Some commenters suggested 

amending these sections to require that 

the agency rationale for its preliminary 

conditions or prescriptions include a 

clear and concise statement of the 

material facts relied upon and an 

‘‘analysis of the project’s impacts on the 

resources the agency administers.’’ HRC 

comments at 33. 

The Departments agree that the 

rationale for a preliminary condition or 

prescription must contain sufficient 

information to enable license parties to 

identify disputed issues of material fact 

in light of the relevant legal standards 

under the FPA. The Departments’ 

rationales also generally identify the 

nature of project-related impacts on 

agency-managed resources that their 

conditions or prescriptions are designed 

to address. However, EPAct is not 

reasonably interpreted to require the 

Departments to catalogue every fact 

considered in developing a preliminary 

condition or prescription. Accordingly, 

the Departments are not amending the 

regulatory text on this point. 

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? 

The Departments received comments 

on various aspects of these regulations, 

including the time for filing hearing 

requests, page limits, and reliance on 

new evidence. 

Time for filing hearing requests 

generally. Commenters suggested that 

the Departments extend the deadline for 

filing hearing requests because, in their 

view, the interim regulations do not 

provide parties with sufficient time to 

prepare such requests or attempt an 

informal resolution of contested issues. 

Specifically, the commenters suggested 

that the Departments extend the 

deadline for filing hearing requests from 

30 days to 45 days to be consistent with 

FERC’s ILP, which provides parties with 

45 days to respond to preliminary 

conditions and prescriptions. 

Additionally, these commenters argued 

that, since FERC’s ILP-prescribed 

deadlines may not be met in certain 

cases, the Departments should extend 

the deadline for filing hearing requests 

instead of conforming the trial-type 

hearing process to the ILP schedule. 

The Departments disagree with this 

proposal (except in cases where the 

Department is issuing conditions or 

prescriptions pursuant to reservations of 

authority, as discussed below). As the 

commenters recognize, the Departments 

have tried ‘‘to conform the trial-type 

hearing to the ILP schedule’’ (EEI/NHA 

comments at 21). Even though FERC’s 

ILP schedule provides parties with 45 

days to submit comments on 

preliminary conditions and 

prescriptions, the 30-day deadline for 

filing trial-type hearing requests is 

necessary both to fit the hearing process 

within the time frame established by 

FERC for each license proceeding, as 

required by EPAct, and to provide 

intervenors and the Department with 

sufficient time to evaluate hearing 

requests and prepare responses before 

the matter is referred to an ALJ. The 30- 

day deadline applies to any request for 

a hearing on a preliminary condition or 

prescription submitted to FERC before 

the license is issued. 

Time for filing hearing requests as 

related to the exercise of reserved 

authority. Some commenters 

complained that the interim regulations 

do not include an express, separate 

timetable for requesting a hearing or 

proposing alternatives in response to a 

Department’s exercise of reserved 

authority under 7 CFR 1.601(d)(2), 43 

CFR 45.1(d)(2), or 50 CFR 221.1(d)(2). 

Under these circumstances, parties may 

have less advance notice concerning the 

justification for and content of any 

proposed conditions or prescriptions. 

The Departments agree that a separate 

timetable should be provided. 

Accordingly, paragraph (a)(2) of these 

regulations has been revised to provide 

a longer period of time—60 days as 

compared to 30 days—for a license 

party to request a hearing on disputed 

issues of material fact with respect to a 

preliminary condition or prescription in 

situations where the Department is 

exercising its reserved authority after 

the license has been issued. 

Time for filing hearing requests as 

related to preliminary versus modified 

conditions and prescriptions. Industry 

commenters took differing positions on 

whether the trial-type hearing should be 

held to address disputed issues of fact 

at the preliminary or modified 

condition/prescription stage. Some 

commenters supported holding trialtype hearings at the preliminary stage, 

acknowledging that doing so is 

appropriate in most cases, is consistent 

with FERC’s licensing timetable, and 

will help inform the NEPA process. 

Other commenters stated that hearings 

are more appropriately held after 

modified conditions or prescriptions are 

submitted. Commenters also requested 

that the regulations provide for trialtype hearings at the modified stage if the 

modifications are based on new facts 

that did not exist or were not 

anticipated at the preliminary stage, or 

if the agency submits an entirely new 

condition or prescription at the 

modified stage. 

As set forth in the interim final rules, 

the trial-type hearing procedures were 

carefully crafted to work within FERC’s 

time frame, as required by Congress, 

while affording interested parties an 

opportunity to present evidence on 

disputed issues of material fact with 

respect to the Departments’ mandatory 

conditions and prescriptions. 70 FR at 

69806. Holding a hearing after 

submission of preliminary conditions 

and prescriptions allows for resolution 

of disputed factual issues at the most 

relevant time—before the Department 

completes necessary modifications to 

the conditions or prescriptions, before 

the close of the NEPA comment period, 

and before completion of the final 

environmental impact statement (EIS). 

This approach also promotes 

efficiency by allowing the Departments 

to assess all relevant information— 

including any ALJ opinion, comments 

on FERC’s NEPA document, and 

alternative conditions or prescriptions 

with supporting information—and to 

modify the conditions or prescriptions 

in one coordinated effort. 

Providing for trial-type hearings 

solely at the modified stage is not a 

reasonable or efficient use of resources. 

Issuance of an ALJ opinion after 

conditions and prescriptions have 

already been modified could require the 

Departments to revise and resubmit 

conditions and prescriptions, thereby 

adding an additional step and 

additional time to the process. This 

second round of revisions would delay 

license issuance in most cases. Indeed, 

under current practice, the Departments 

submit modified conditions and 

prescriptions 60 days after the close of 

the NEPA comment period, with FERC’s 

final EIS being issued just 90 days later. 

An ALJ opinion resolving disputed facts 

on modified conditions and 

prescriptions would almost certainly be 

issued after FERC’s completion of the 

final NEPA document. 

The Departments disagree with 

comments that holding an adversarial 

hearing at the preliminary stage will 

jeopardize the possibility of settlement. 

The Departments’ experience has been 

that several cases have settled after 


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hearing requests were filed at the 

preliminary condition or prescription 

stage. 

The revised interim final regulations 

therefore continue the approach taken 

in the interim regulations of scheduling 

the trial-type hearing process 

immediately following the issuance of 

preliminary conditions and 

prescriptions. Nevertheless, the 

Departments acknowledge that 

exceptional circumstances may arise 

where facts not in existence and not 

anticipated at an earlier stage 

necessitate a new preliminary condition 

or prescription. This circumstance 

would be handled on a case-by-case 

basis, in coordination with FERC as 

necessary. 

Page limits for hearing requests. Some 

commenters objected that the page 

limits for hearing request are too 

restrictive, and they requested that the 

limit for describing disputed issues of 

material fact be increased from two 

pages to five pages and that the limit for 

witness and exhibit identification be 

increased from one page to three pages. 

The Departments believe that the page 

limits set forth in the interim 

regulations are generally appropriate 

and provide sufficient space for parties 

to identify disputed issues, particularly 

in light of the expedited nature of the 

proceeding. The Departments further 

note that they are bound by the same 

page limits in submitting an answer. See 

7 CFR 1.622, 43 CFR 45.22, and 50 CFR 

221.22. 

Nevertheless, having considered this 

comment and the purpose of the rule, 

the Departments have concluded that 

the required list of specific citations to 

supporting information and the list of 

exhibits need not be included in the 

page restrictions. The rule has been 

revised accordingly for the hearing 

request and the notice of intervention 

and response. See 7 CFR 1.621(d), 43 

CFR 45.21(d), 50 CFR 221.21(d) and 7 

CFR 1.622(d), 43 CFR 45.22(d), 50 CFR 

221.22(d). This change will provide the 

parties with additional space to describe 

the disputed issues of material fact and 

to summarize expected witness 

testimony. 

Reliance on new evidence. Other 

commenters suggested that the final 

rules require parties who wish to submit 

new evidence when requesting a trialtype hearing or in support of an 

alternative condition or prescription to 

show good cause for not having 

previously submitted the information in 

the license proceeding record. 

Otherwise, these commenters argued, 

parties would have an incentive ‘‘to 

‘hide the ball’ from others and disrupt 

proceedings at the last minute,’’ which 

may create delays or unfair advantage. 

HRC Comments at 30. 

While the Departments share the 

commenters’ interest in ensuring an 

expeditious and fair trial-type hearing, 

we disagree with the proposal to 

include a ‘‘good cause’’ requirement. 

Such a requirement could harm the 

Department’s ability to rely on relevant 

information from the parties, such as 

newly completed studies, that might 

assist the Department in evaluating 

conditions and fishway prescriptions. 

Moreover, such a requirement may run 

counter to the parties’ and the 

Department’s interests in ensuring a 

‘‘full and accurate disclosure of the 

facts.’’ 7 CFR 1.651(a), 43 CFR 45.51(a), 

50 CFR 221.51(a). 

Service by electronic means. 

Consistent with the changes to 7 CFR 

1.613(c), 43 CFR 45.13(c), and 50 CFR 

221.13(c), a new paragraph (b)(4) has 

been added to these regulations, 

requiring a hearing requester to state 

whether or not it consents to service by 

electronic means and, if so, by what 

means. 

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? 

Commenters objected that the 15-day 

period provided in the interim 

regulations for filing a notice of 

intervention and response to a hearing 

request was too short, pointing out that 

the Departments have 30 days to file 

their answers under interim 7 CFR 

1.624(a), 43 CFR 45.24(a), and 50 CFR 

221.24(a). While the Departments need 

the additional time to coordinate with 

each other and with the respective ALJ 

offices regarding the possible 

consolidation of related hearing 

requests, the Departments agree that a 

15-day intervention and response period 

is very tight. 

As revised, paragraph (a)(1)(ii) of 

these regulations gives license parties 20 

days for filing a notice of intervention 

and response, thus adding 5 days to the 

overall hearing process. A diagram of 

the trial-type hearing process under 

these revised interim final rules is found 

in the discussion of 7 CFR 1.660, 43 

CFR 45.60, and 50 CFR 221.60, below. 

Paragraph (a)(2) has also been revised, 

to clarify the permissible scope of a 

notice of intervention and response. 

Paragraph (b)(3) has been added, 

requiring an intervenor to state whether 

or not it consents to service by 

electronic means and, if so, by what 

means. 

Finally, paragraph (d) has been 

revised to specify that citations to 

scientific studies, literature, and other 

documented information do not count 

against the page limits for the response. 

7 CFR 1.623 Will hearing requests be 

consolidated? 

43 CFR 45.23 Will hearing requests be 

consolidated? 

50 CFR 221.23 Will hearing requests be 

consolidated? 

These sections, including the section 

headings, have been revised slightly to 

focus on the substance rather than the 

timing of the Departments’ interagency 

coordination regarding multiple hearing 

requests. A decision on consolidation of 

hearing requests must still be made 

before the Departments file their 

responses under revised 7 CFR 1.625, 43 

CFR 45.25, and 50 CFR 221.25; but it is 

not necessary to specify the timing of 

steps within the interagency 

coordination process. 

The introductory language to 

paragraph (c) has also been revised to 

clarify that two or more hearing requests 

may be consolidated only in part, which 

could be appropriate if they have only 

some issues in common. 

Some commenters proposed that the 

regulations provide for consecutive 

rather than simultaneous 90-day 

hearings for those cases that the 

Departments do not consolidate. 

Similarly, they proposed that a 

consolidated hearing involving two 

Departments last up to 180 days and a 

consolidated hearing involving three 

Departments last up to 270 days. The 

Departments do not agree that EPAct 

affords this level of flexibility regarding 

timing. 

EPAct requires that any trial-type 

hearing be conducted within the time 

frame established by FERC for each 

license proceeding. To fulfill this 

requirement, trial-type hearings are 

generally completed 180 days or so 

before completion of the final NEPA 

document and license issuance. Those 

180 days are needed to complete several 

procedural steps, including the 

comment period on FERC’s draft NEPA 

document, submission of revised 

alternatives, review of comments on the 

draft NEPA document, preparation of 

the alternatives analysis, modification of 

conditions or prescriptions, issuance of 

FERC’s final NEPA document, and 

license issuance. Many if not all of these 

steps are dependent on receipt of the 

ALJ’s decision. 

Increasing the overall time frame for 

hearings from 90 to 180 or 270 days— 

either through consecutive 90-day 

hearings or one extended consolidated 


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hearing—would push back these 

subsequent steps and raise a significant 

potential for delay in license issuance, 

a result Congress expressly sought to 

avoid. The revised interim final 

regulations do not adopt the 

commenters’ proposals. 

Some commenters questioned the 

authority of the Departments to 

consolidate hearing requests, thereby 

giving an ALJ for one Department the 

authority to decide disputed issues of 

material fact for another. This issue is 

addressed below in connection with 7 

CFR 1.660(d), 43 CFR 45.60(d), and 50 

CFR 221.60(d). 

7 CFR 1.624 Can a hearing process be 

stayed to allow for settlement 

discussions? 

43 CFR 45.24 Can a hearing process be 

stayed to allow for settlement 

discussions? 

50 CFR 221.24 Can a hearing process 

be stayed to allow for settlement 

discussions? 

These sections are new and reflect the 

Departments’ experience in 

implementing the interim final rules, 

which did not contain any provision for 

a stay of the hearing process. As noted 

previously, the Departments have been 

able to settle several cases after hearing 

requests were filed. However, in other 

cases, the Departments found that 

settlement might have been possible, 

but once the hearing request was 

referred to the ALJ, the expedited 

hearing schedule left little time for 

further settlement discussions. Under 

these revised interim final regulations, 

before a case is referred to the ALJ, the 

hearing requester and the Department 

may agree to stay the hearing process for 

a limited period of time, not to exceed 

120 days, to allow for settlement 

discussions. The Department’s 

agreement to a stay will be based on its 

judgment as to the likelihood of 

achieving settlement within the period 

of the potential stay. 

If necessary, the relevant Department 

and hearing requester(s) may request 

that FERC revise the time frame 

established for the license proceeding to 

accommodate the stay period and any 

subsequent hearing process that may be 

necessary if negotiations fail. FERC’s 

regulations at 18 CFR 5.29(g) provide 

that FERC will consider such requests 

on a case-by-case basis. However, 

during our consultation process on 

these rules, FERC staff noted that the 

ILP is designed to allow for 

collaboration and coordination early in 

the process, with the goal that 

disagreements are worked out prior to 

the NEPA document stage. FERC staff 

expressed concern that allowance of 

stays of the trial-type hearing 

proceeding could encourage 

participants to wait until this late date 

to work out their differences. 

A stay would not affect the deadline 

for filing a notice of intervention and 

response, so that the hearing requester 

and the Department will be aware of 

other parties’ interest in the case. 

7 CFR 1.625 How will the Forest 

Service respond to any hearing 

requests? 

43 CFR 45.25 How will the bureau 

respond to any hearing requests? 

50 CFR 221.25 How will NMFS 

respond to any hearing requests? 

These sections have been renumbered 

because of the insertion of the stay 

provisions just discussed. Revisions to 

paragraph (a) adjust the deadline for the 

Departments to file their answers to 

accommodate the change made to 7 CFR 

1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), 

and 50 CFR 221.22(a)(1)(ii) regarding 

notices of intervention and responses 

and the addition of 7 CFR 1.624, 43 CFR 

45.24, and 50 CFR 221.24 regarding 

stays. The 50 days allowed for the 

Department’s answer runs from the 

deadline for filing a hearing request, and 

it therefore includes the additional 5 

days allowed above for filing a notice of 

intervention and response. Thus, the 

increase from 45 to 50 days in paragraph 

(a) will not further extend the overall 

hearing process. 

Paragraph (b)(3) has been added in 

response to comments. It requires the 

Department to provide a copy of any 

scientific studies, literature, and other 

documented information it relies on that 

are not already in the license proceeding 

record, as is required of the other parties 

by 7 CFR 1.621(b)(3), 43 CFR 

45.21(b)(3), and 50 CFR 221.21(b)(3) and 

by 7 CFR 1.622(b)(2), 43 CFR 

45.22(b)(2), and 50 CFR 221.22(b)(2). 

Paragraph (b)(4) has also been added, 

requiring the Department to state 

whether or not it consents to service by 

electronic means and, if so, by what 

means. 

The Departments received comments 

on various aspects of these regulations, 

including the content of the answer, 

filing a notice in lieu of an answer, and 

potential methods for avoiding an 

evidentiary hearing. 

Content of the answer. Some 

commenters suggested amending 7 CFR 

1.624(b), 43 CFR 45.24(b), and 50 CFR 

221.24(b) to require the Department to 

indicate in its answer whether it would 

stipulate to facts as alleged by any 

intervenor, and not just to facts as 

alleged by the hearing requester. 

Adoption of this suggestion would 

require the Department to review all 

facts alleged in any notice of 

intervention and response and take a 

specific position on each. 

The Departments disagree that the 

regulations should be changed. The 

primary function of the answer is to 

present the Department’s position on 

whether the hearing request raises 

issues that are factual, material, and in 

dispute. The answer may narrow the 

issues for a hearing or avoid one 

altogether if there is no disagreement 

between the primary parties (the hearing 

requester and the party Department) as 

to the facts. Given that intervenors 

cannot raise new issues, it is not 

necessary to respond to a notice of 

intervention and response in the same 

way as to a hearing request. 

Further, reviewing every allegation 

raised in notices of intervention and 

responses would likely require 

extensive effort at the same time the 

Department is reviewing the hearing 

request, consulting with other 

Departments regarding consolidation, 

assembling exhibits and identifying 

witnesses, and preparing an answer or 

notice. Nothing precludes a Department 

from noting its position on statements in 

other filings, if doing so may narrow the 

issues for hearing. Since the regulations 

allow any party to the licensing 

proceeding to file a hearing request, 

intervenors are not prejudiced by this 

decision not to adopt the commenters’ 

suggestion. 

Filing a notice in lieu of an answer. 

The same commenters objected to the 

interim rule provision allowing the 

Department to file a notice in lieu of an 

answer, arguing that the Department 

should be required to file an answer in 

all cases, and offering revised regulatory 

language to that effect. The proposed 

revisions have not been adopted. 

Developing a formal answer in cases 

where the agency agrees that the issues 

are factual, material, and in dispute 

would not be an efficient use of agency 

resources. In those situations, the 

regulations provide that the agency will 

file a notice in lieu of answer and may 

also file a list of exhibits and witnesses. 

7 CFR 1.625(e), 43 CFR 45.25(e), 50 CFR 

221.25(e). 

These commenters also stated that, if 

an answer remains permissive rather 

than mandatory, ‘‘a Department’s failure 

to file an answer should be deemed a 

denial of the hearing request for failure 

to raise a disputed issue of material 

fact.’’ HRC comments at 35. It appears 

from the context that by ‘‘denial’’ the 

commenters mean rejection of the 

hearing request. As discussed below, the 

Departments favor leaving the 


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determination of which issues warrant a 

hearing to an independent ALJ. 

Avoidance of evidentiary hearing 

through use of a ‘‘paper hearing.’’ The 

commenters also requested that this 

section be revised to state that the 

Department is not required to refer a 

case for hearing if no disputed issues of 

material fact exist or if any such issues 

can be resolved through a ‘‘paper 

hearing’’ or other procedure. The 

commenters would require the hearing 

requester to demonstrate that formal 

procedures such as cross-examination 

‘‘will produce a fuller and truer 

disclosure of the facts than a paper 

hearing process.’’ HRC comments at 28. 

The Departments do not believe such an 

approach would be consistent with 

EPAct. 

EPAct section 241 expressly entitles 

any party to the FERC license 

proceeding to ‘‘a determination on the 

record, after opportunity for an agency 

trial-type hearing . . . on any disputed 

issues of material fact’’ relating to 

mandatory conditions and 

prescriptions. Importantly, section 241 

requires that the Departments’ 

implementing regulations provide 

hearing parties the opportunity to 

undertake discovery and cross-examine 

witnesses. Thus, Congress did not 

contemplate that a ‘‘ ‘paper hearing’ or 

other procedures’’ would suffice. 

Avoidance of evidentiary hearing 

where no disputed issues of material 

fact exist. The commenters similarly 

proposed that the Department not be 

required to refer a case for hearing 

where ‘‘the answer determines that 

there are no disputed issues of material 

fact.’’ HRC comments at 38–40. These 

commenters would rely on the answer 

process to allow the Department to 

narrow or dispose of issues for hearing 

prior to referral to the ALJ. Other 

commenters supported giving the ALJ 

sole authority to determine whether 

disputed issues of material fact exist. 

HRC’s approach would grant the 

Department a gatekeeper role in 

determining what issues actually go to 

hearing. Although failure to raise a 

disputed issue of material fact should 

result in dismissal of a hearing request 

or component issue, the Departments 

believe that this determination is more 

appropriately left to an independent 

ALJ. Thus, unless the hearing process is 

stayed for a limited time for settlement 

negotiations under 7 CFR 1.624, 43 CFR 

45.24, 50 CFR 221.24, the regulations 

require referral of any hearing request, 

answer, and intervention to the 

appropriate ALJ’s office, which can then 

determine the existence of disputed 

issues of material fact. This approach 

benefits all parties by providing 

necessary transparency and avoiding 

any appearance of bias in making the 

important threshold determination of 

whether particular issues warrant a 

hearing. 

Avoidance of evidentiary hearing by 

adoption of a proposed alternative 

condition or prescription. In the 

November 17, 2005, interim final rule, 

the Departments indicated that they 

would endeavor to review proposed 

alternatives at the earliest possible time 

and that, in some cases, review of a 

proposed alternative could ‘‘preclude 

the need for a hearing.’’ 70 FR at 69807. 

HRC asked for clarification as to 

whether the Departments contemplated 

formally adopting a proposed 

alternative on an expedited basis to 

avoid a hearing. The commenters stated 

that they oppose what they term ‘‘fasttrack adoption of a proposed alternative 

in order to forgo a hearing,’’ suggesting 

that such an action would be 

inconsistent with the Departments’ 

obligation to consider the information 

specified in the regulations for 

analyzing alternatives. HRC Comments 

at 70. They also suggested that public 

comment should be sought prior to any 

decision to forgo a hearing. 

In response to this comment, the 

Departments have considered their 

cumulative experience thus far with 

early evaluation of alternatives in 

connection with hearing requests filed 

under the interim final rule. As 

explained below (in discussing 7 CFR 

1.671, 43 CFR 45.71, and 50 CFR 

221.71), early, informal evaluation of 

proposed alternatives in conjunction 

with hearing requests has led to several 

successful settlements. The resulting 

condition or prescription may differ 

from both the Department’s preliminary 

condition or prescription and any 

proposed alternative. In revising its 

condition or prescription pursuant to a 

settlement, the Department would have 

to follow any applicable requirements 

for considering available information. 

Nothing in the FPA requires a 

Department to seek public comment on 

a settlement that avoids the need for a 

hearing. The Departments believe that 

developing conditions and prescriptions 

that achieve resource protection while 

avoiding litigation furthers the goals of 

the FPA (and particularly the EPAct 

amendments) and should be encouraged 

where feasible. 

7 CFR 1.626 What will the Forest 

Service do with any hearing requests? 

43 CFR 45.26 What will DOI do with 

any hearing requests? 

50 CFR 221.26 What will NMFS do 

with any hearing requests? 

Revisions to paragraph (b) of these 

regulations (renumbered like the 

previous section) track the changes to 7 

CFR 1.612(b)(1), 43 CFR 45.12(b)(1), and 

50 CFR 221.12(b)(1) concerning the 

number of copies. 

Paragraph (c)(4) has been revised to 

require the referral notice to specify the 

effective date of the referral, which will 

be the basis for computing other time 

periods during the hearing process—see 

7 CFR 1.630, 43 CFR 45.30, and 50 CFR 

221.30 concerning docketing; 7 CFR 

1.640(a), 43 CFR 45.40(a), and 50 CFR 

221.40(a) concerning the prehearing 

conference; 7 CFR 1.641(d), 43 CFR 

45.41(d), and 50 CFR 221.41(d) 

concerning discovery motions; and 7 

CFR 1.660(a)(2), 43 CFR 45.60(a)(2), and 

50 CFR 221.60(a)(2) concerning the 

ALJ’s decision. This change will 

eliminate the confusion that 

occasionally arose under the interim 

regulations as to the date on which a 

referral notice was ‘‘issued.’’ 

The interim final regulations provide 

that the Department receiving a hearing 

request will refer it to an appropriate 

ALJ office for a hearing by sending a 

‘‘referral’’ package, which includes a 

‘‘referral notice.’’ See 7 CFR 1.625(b)(5), 

43 CFR 45.25(b)(5), 50 CFR 221.25(b)(5). 

The referral notice must include, among 

other things, ‘‘the date on which [the 

agency] is referring the case for 

docketing.’’ 7 CFR 1.625(c), 43 CFR 

45.25(c), 50 CFR 221.25(c). In 

establishing deadlines for key 

milestones in the hearing procedure 

(such as docketing of the case by the 

ALJ, filing motions, setting the initial 

prehearing conference, etc.), a number 

of provisions refer to the ‘‘issuance of 

the referral notice’’ as the triggering 

event for calculating deadlines. See, e.g., 

7 CFR 1.630; 43 CFR 45.30; 50 CFR 

221.30. 

Because the interim final regulations 

used slightly varying terminology 

throughout and did not define the 

‘‘issuance’’ date, there was a potential 

for confusion as to how deadlines 

should be calculated. Despite the 

provision noting that the referral notice 

should state the date on which the 

agency ‘‘is referring’’ the case, there was 

potential to construe the triggering date 

as being either the date the notice was 

sent from the referring agency, the date 

it was received by the ALJ, or (if 

different) the date stated as the 


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‘‘effective date’’ on the notice itself. This 

led to confusion where, for example, an 

agency wished to send out the referral 

package in advance to ensure timely 

receipt by the ALJ, while avoiding 

accelerating the dates in the hearing 

process (such as sending the package by 

Federal Express on a Friday for receipt 

by the ALJ’s office by the deadline the 

following Monday). The approach of 

specifying in the text of the referral 

notice an ‘‘effective’’ date that was 

different from the date the package was 

sent from the agency was expressly 

approved by the Coast Guard ALJ 

presiding in the Santee-Cooper Project 

trial-type hearing. See Order 

Memorializing Prehearing Conference at 

1–2 (FERC Project Number 199, license 

applicant South Carolina Public Service 

Authority) (September 15, 2006). 

Corresponding changes have been 

made to various other provisions of the 

revised interim final regulations. These 

changes are intended to make clear that, 

where any provision sets forth a period 

of time after referral of the case within 

which an act or event must take place, 

the trigger for calculating the due date 

will be the ‘‘effective date’’ stated in the 

text of the referral notice. This may or 

may not be the same as the date the 

notice was written, the date it was sent 

out from the Department, or the date it 

was received by the ALJ. This approach 

is consistent with the intent of the 

original regulations. If the text of the 

referral notice does not set forth an 

‘‘effective date,’’ then the effective date 

will be the date shown as the date the 

notice was sent out from the 

Department. 

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? 

The introductory language to these 

regulations has been revised to include 

the phrase, ‘‘relating to any . . . 

Department’s condition or prescription 

that has been referred to the ALJ for 

hearing,’’ previously found in interim 7 

CFR 1.631(i), 43 CFR 45.31(i), and 50 

CFR 221.31(i). That phrase properly 

covers the entire hearing process, not 

merely the ALJ’s decision. 

Paragraph (b) has been revised to 

affirm the authority of the ALJ to issue 

subpoenas under 7 CFR 1.647, 43 CFR 

45.47, and 50 CFR 221.47. See Childers 

v. Carolina Power & Light Co., No. 98– 

77 (Dept. of Labor Admin. Review 

Board, Dec. 29, 2000), 2000 DOL 

Adm.Rev.Bd. LEXIS 123, 2000 WL 

1920346. 

Paragraph (c) has been added to allow 

the ALJ to shorten or enlarge the time 

periods set forth in the hearing process 

regulations generally. Several interim 

regulations specified that the ALJ could 

change the time period otherwise 

applicable, while others did not. The 

revised interim final regulations omit 

those context-specific authorizations in 

favor of this general authority of the ALJ 

to adjust time periods as necessary to 

effectively manage the hearing process. 

However, the revised interim final 

regulations state that the ALJ cannot 

extend the time period for rendering a 

decision on the disputed issues of 

material fact past the deadline set in 7 

CFR 1.660(a)(2), 43 CFR 45.60(a)(2), or 

50 CFR 221.60(a)(2), except in the 

extraordinary situation where the ALJ 

must be replaced under 7 CFR 1.632, 43 

CFR 45.32, or 50 CFR 221.32 dealing 

with unavailability or 7 CFR 1.633, 43 

CFR 45.33, or 50 CFR 221.33 dealing 

with disqualification. 

Some commenters suggested that the 

regulations be amended to state 

expressly that the ALJ is authorized 

only to issue a decision limited to 

disputed issues of material fact and may 

not address the propriety of the 

Department’s condition or prescription. 

Specifically, the commenters 

recommended that language from 

preamble to the interim final rules (70 

FR at 69814) be incorporated into the 

regulations. 

The Departments find that the 

regulations already adequately state this 

principle, and thus regulatory changes 

are not needed. While the commenters 

focused on the provisions at 7 CFR 

1.631(i), 43 CFR 45.31(i), and 50 CFR 

221.31(i), a separate provision of the 

regulations at 7 CFR 1.660(b), 43 CFR 

45.60(b), and 50 CFR 221.60(b) specifies 

the content of an ALJ decision. That 

section provides that an ALJ decision 

must contain ‘‘findings of fact on all 

disputed issues of material fact’’ 

(paragraph (b)(1)) and only those 

‘‘conclusions of law necessary to make 

the findings of fact’’ (paragraph (b)(2)). 

Paragraph (b)(3) then specifies, ‘‘The 

decision [of the ALJ] 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.’’ The experience of the 

Departments to date is that ALJs well 

understand the limitations on their 

authority under EPAct. 

These commenters suggested further 

that 7 CFR 1.631(j), 43 CFR 45.31(j), and 

50 CFR 221.31(j) be amended to specify 

that the ALJ is empowered, not just to 

‘‘[t]ake any action authorized by law,’’ 

but in particular, to ‘‘summarily dispose 

of a proceeding, or part of a 

proceeding,’’ as provided under a 

comparable provision in the FERC 

procedural regulations, citing 18 CFR 

385.504(b)(9). The commenters 

suggested that a new provision be added 

that lays out the procedures for 

summary disposition, either on motion 

of a party or at the initiative of the ALJ, 

following the example of the FERC 

regulations at 18 CFR 385.217. 

The Departments agree that ALJs have 

the inherent authority to summarily 

dispose of a proceeding that fails to 

raise legitimate disputed issues of 

material fact; failure to raise such issues 

means the ALJ lacks jurisdiction to hear 

the matter. ALJs have recognized and 

used this authority in ruling on motions 

to dismiss in trial-type-hearings 

conducted under the interim final rules. 

The Departments conclude that adding 

language to the regulations to make this 

authority explicit would be beneficial 

and thus are adding a new paragraph (j) 

expressly setting forth this authority. 

However, the Departments find it 

unnecessary to add a provision to these 

regulations comparable to 18 CFR 

385.217. The term ‘‘disputed issue of 

material fact’’ has a distinct legal 

meaning in the context of these 

regulations, and whether or not such 

issues have been presented determines 

whether the ALJ has jurisdiction to hear 

any part of the matter. The inquiry is 

governed by the particular definition of 

‘‘material fact’’ and related parameters 

set forth in these regulations. It would 

be confusing to litigants to set forth a 

new provision that uses a similar phrase 

in a different context (‘‘genuine issue of 

fact material to the decision of a 

proceeding or part of a proceeding’’), as 

the referenced FERC provision (or FRCP 

56) does. 

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? 

Paragraph (a)(2)(iii) in the interim 

regulations imposed a 10-page limit for 

motions, but the regulations contained 

no page limit for responses. The revised 

interim final regulations increase the 

page limit for motions in paragraph 

(a)(2)(iii) to 15 pages, including 

supporting arguments, and impose the 

same page limit for responses to 

motions in paragraph (c). 


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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? 

Two minor changes have been made 

to these sections. As mentioned 

previously, paragraph (a) has been 

revised to set the date for the initial 

prehearing conference at about 20 days 

after the effective date—rather than after 

‘‘issuance’’—of the referral notice under 

7 CFR 1.626(c)(4), 43 CFR 45.26(c)(4), or 

50 CFR 221.26(c)(4). And the list of 

topics to be covered in the initial 

prehearing conference under paragraph 

(a)(1)(iv) has been revised by adding the 

exchange of exhibits that will be offered 

as evidence under 7 CFR 1.654, 43 CFR 

45.54, and 50 CFR 221.54. 

Some commenters suggested that 

parties to a trial-type hearing be 

required to make ‘‘all reasonable efforts’’ 

to resolve procedural disputes before 

the pre-hearing conference, which they 

reason is critical to the effective conduct 

of that conference. HRC Comments at 

47. The Departments believe the 

existing requirement that parties make 

‘‘a good faith effort’’ is sufficient. 

The same commenters suggested that 

the scope of the prehearing conference 

be limited to issues raised in each 

party’s hearing requests or intervention 

and response. The commenters reasoned 

that this limitation is necessary to 

ensure that parties are not burdened 

with discussing matters beyond their 

expertise. 

The Departments agree with this 

proposal in part and have revised 

paragraph (d) to provide that ‘‘(e)ach 

party’s representative must be fully 

prepared for a discussion of all issues 

pertinent to that party that are properly 

before the conference, both procedural 

and substantive.’’ To promote 

administrative efficiency and judicial 

economy, ALJs must have the discretion 

to address any issue properly before the 

prehearing conference, and each party’s 

representative must be fully prepared to 

discuss issues raised by the ALJ that are 

pertinent to that party. 

These commenters further stated that 

parties to a trial-type hearing should 

always have the option of participating 

in the prehearing conference via 

telephone. They argued that prohibiting 

participation by telephone could create 

an unfair advantage for parties that have 

a greater ability to travel. 

The revised interim final rule 

confirms that the prehearing conference 

will ordinarily be held via telephone, 

but preserves the flexibility established 

in the interim final rules for the ALJ to 

set the venue for a prehearing 

conference. This flexibility is important 

for cases where the ALJ and the parties 

would benefit from participating in a 

prehearing conference in person. The 

ALJ must retain the discretion to make 

this determination. In-person prehearing 

conferences may be justified in various 

circumstances, including cases where 

parties are located in close geographic 

proximity or where a large number of 

parties must interact with each other 

and the ALJ to resolve procedural and 

substantive issues. 

Finally, the commenters suggested 

that the final rules allow a party who 

shows ‘‘good cause’’ for not attending a 

prehearing conference to object to any 

agreements or orders resulting from the 

prehearing conference. HRC Comments 

at 48–49. The commenters reasoned that 

parties are given only a few days’ notice 

prior to the prehearing conference and 

may not be able to attend due to 

preexisting or unforeseen 

circumstances, such as lack of 

resources, travel delays, or medical 

emergencies. 

The ALJ’s ability to manage 

attendance at the prehearing conference 

is critical to ensuring timely resolution 

of issues in these expedited trial-type 

hearings. The revised interim final rules 

do not adopt the commenters’ 

suggestion, but preserve the ALJ’s 

discretion to accommodate a party who 

fails to attend a prehearing conference 

by not waiving that party’s objection to 

any agreements or orders resulting from 

the conference. Parties may notify the 

ALJ if they have concerns about the 

schedule for the prehearing conference 

or will be unable to attend. 

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? 

Minor editorial changes have been 

made to paragraphs (a)(1), (a)(2), (g), and 

(h)(1) in these regulations for greater 

clarity. The latter three changes are 

intended to clarify that paragraphs (g) 

and (h) are not separate bases for 

discovery but are subject to and further 

qualify the general provisions in 

paragraphs (a) and (b) applicable to all 

discovery requests. 

As mentioned previously, paragraph 

(d) has been revised to set the deadline 

for discovery motions at 7 days after the 

effective date—rather than after the 

‘‘issuance’’—of the referral notice under 

7 CFR 1.626(c)(4), 43 CFR 45.26(c)(4), or 

50 CFR 221.26(c)(4). 

Paragraph (h)(4) has been added to 

provide that, unless otherwise agreed 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. This limitation is 

modeled on FRCP 30(d)(2). 

Some commenters recommended that 

discovery be authorized to begin 

immediately upon referral of a case to 

an ALJ, and argued that requiring 

authorization from an ALJ or agreement 

of the parties (as the current regulations 

do) needlessly limits discovery rights. 

The commenters recommended that the 

Departments adopt the approach of the 

FERC regulations at 18 CFR 385.402(a) 

and 385.403(a), which authorize 

discovery to begin without the need for 

ALJ involvement unless there are 

discovery disputes. 

The Departments disagree that the 

regulations should be changed. As noted 

in the preamble to the interim final 

rules, discovery procedures must be 

limited in this specialized trial-type 

hearing context to fit within the 

expedited time frame mandated by 

section 241 of EPAct. See 70 FR at 

69812. In addition, discovery must be 

carefully managed to ensure that it is 

appropriate in light of the particular 

history of the underlying licensing 

proceeding. In most cases, the licensing 

proceeding will have been ongoing for 

a number of years, and the parties will 

be familiar with the key documents and 

issues that have been developed. 

Further, the Department will have 

already filed an administrative record to 

support its preliminary condition or 

prescription, thus making wide-ranging 

discovery unnecessary. 

Moreover, the current regulations 

already provide for discovery to begin 

promptly and continue for an adequate 

time. Where the parties agree, discovery 

may begin right away, without a need 

for an authorizing order of the ALJ. Any 

discovery motions must be 

expeditiously filed, within 7 days of 

referral of the case to the ALJ. This 

prompt filing enables the parties to 

begin as soon as possible to formulate 

their discovery requests and to review 

one another’s discovery requests. See 7 

CFR 1.641(d), 43 CFR 45.41(d), 50 CFR 

221.41(d). 

The regulations further require the 

parties to make a good faith effort to 

reach agreement regarding discovery 

prior to the prehearing conference. See 

7 CFR 1.640(d)(2), 43 CFR 45.40(d)(2), 

50 CFR 221.40(d)(2). Because the scope 


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of discovery is necessarily limited, as 

discussed above, the default date for the 

close of discovery (25 days after the 

prehearing conference, see 7 CFR 

1.641(i), 43 CFR 45.41(i), 50 CFR 

221.41(i)) should ordinarily be 

sufficient. However, the revised interim 

final regulations allow the ALJ to adjust 

the dates for key events, such as the 

prehearing conference and close of 

discovery, where appropriate. 

These commenters also suggested that 

the Departments should model the trialtype hearing discovery procedures on 

the FERC rules at 18 CFR part 385, 

subpart D. The Departments do not find 

it necessary to adopt procedures 

developed in the much broader FERC 

context. For the reasons discussed 

above, the limited procedures under 

these regulations are appropriate and 

adequately flexible for expedited trialtype hearing proceedings. 

Moreover, contrary to the 

commenters’ suggestions, the 

procedures for initiating discovery 

under these regulations are not more 

onerous than FERC’s. Discovery under 

the FERC procedures is not necessarily 

automatic, as Rule 410 of the FERC 

procedures states that a presiding officer 

‘‘may, by order, deny or limit discovery’’ 

in order, among other things, to ‘‘protect 

a participant or other person from 

undue annoyance, burden, harassment 

or oppression’’ and ‘‘prevent undue 

delay in the proceeding.’’ 18 CFR 

385.410(c) (emphasis added). See also 

18 CFR 402(a) (scope and right of 

discovery is dependent upon any 

relevant orders of the presiding officer). 

Further, similar to the requirement in 

the Departments’ regulations that 

discovery issues be addressed at the 

prehearing conference, the FERC 

regulations provide that the presiding 

officer may hold a ‘‘discovery 

conference’’ for the purpose of resolving 

disputes or ‘‘scheduling discovery.’’ 

The mechanisms included in these 

regulations are also similar to those 

under the FRCP. See Rule 26(d) 

(providing that, for most kinds of cases, 

parties are prohibited from directing 

discovery requests to other parties prior 

to conferring with other parties to 

develop a proposed discovery plan 

under Rule 26(f)). 

For these reasons, no changes to the 

discovery provisions are needed. 

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 (b)(1) of these regulations 

has been revised to give the parties 10 

days after the completion of discovery 

to update their witness and exhibit lists, 

as compared to 5 days in the interim 

regulations. The same change has been 

made to 7 CFR 1.652(a)(1)(iii), 43 CFR 

45.52(a)(1)(iii), and 50 CFR 

221.52(a)(1)(iii) concerning the 

submission of written testimony. The 

additional time will assist the parties in 

preparing their cases for trial. 

This change will add 5 days to the 

overall hearing process, in addition to 

the 5 days added by 7 CFR 

1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), 

and 50 CFR 221.22(a)(1)(ii) concerning 

notices of intervention and responses. A 

diagram of the trial-type hearing process 

under these revised interim final rules 

is found in the discussion of 7 CFR 

1.660, 43 CFR 45.60, and 50 CFR 221.60, 

below. 

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? 

A new paragraph (a)(2) has been 

added to these regulations, stating that, 

unless the parties agree otherwise, 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. 

This limitation is modeled on FRCP 

33(a). 

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? 

Some commenters suggested that the 

regulations pose unnecessary hurdles to 

parties wishing to participate in a 

deposition via telephonic conference 

call, to record a deposition on 

videotape, or to offer testimony during 

the trial via telephone. They stated that 

the regulations, as written, allow parties 

to block others from participating in 

depositions and at the hearing via 

telephone, which may prejudice parties 

who lack the means to participate in 

person. The commenters stated that no 

party should be allowed to veto 

another’s ability to participate by 

conference call or video conference, and 

the ALJ should not be allowed to 

prohibit witnesses from submitting 

testimony by telephone or video, in 

light of advances in technology. 

Specifically, the commenters 

suggested that the language ‘‘if agreed to 

by the parties, or approved in the ALJ’s 

order’’ in paragraph (c)(4) of these 

regulations be struck from the provision 

regarding the participation in 

depositions by telephonic means and 

that the phrase ‘‘subject to any 

conditions the parties may agree to or 

the ALJ may impose’’ in paragraph (g) 

be struck from the provision regarding 

recording of depositions on videotape. 

The commenters also recommended that 

the phrase ‘‘the ALJ may by order 

allow’’ be struck from 7 CFR 1.652(c), 43 

CFR 45.52(c), and 50 CFR 221.52(c) and 

be replaced with the phrase ‘‘the ALJ 

will allow’’ in the provision regarding 

allowing witness testimony by 

telephonic conference call during the 

trial. 

The Departments disagree that the 

regulations need to be amended. As 

written, the regulations do not prevent 

parties from participating in depositions 

via telephonic conference call, from 

recording depositions on videotape, or 

from offering testimony during the trial 

via telephone or video recording. 

Rather, the regulations offer parties the 

opportunity to address such matters by 

agreement. If the parties are unable to 

agree, the regulations appropriately 

allow the ALJ to manage these matters 

within his or her discretion, with input 

from the parties as appropriate. Because 

the ALJ will be in the best position to 

evaluate the parties’ relative abilities to 

participate and the other needs in the 

case (need for expedition versus need 

for live testimony, availability of 

technologies, costs, etc.), this issue is 

best addressed on a case-by-case basis, 

as the current regulations contemplate. 

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? 

Minor editorial changes have been 

made to paragraph (a)(1) and (a)(2) of 

these regulations to clarify that, while it 

is up to each party to decide whether or 


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not it wishes to have a subpoena issued, 

a party may obtain a subpoena only by 

filing a motion with the ALJ. 

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? 

As revised, paragraph (a) of these 

regulations states that the hearing will 

be held at the time and place set during 

the prehearing conference, generally 

within 25 days after the completion of 

discovery, an increase from the 15 days 

provided in the interim regulations. 

This 25-day period includes the 5 days 

previously added by 7 CFR 1.642(b)(1), 

43 CFR 45.42(b)(1), and 50 CFR 

221.42(b)(1) concerning updated 

witness and exhibit lists, so the net 

increase is a further 5 days, to assist the 

parties in preparing their cases for trial. 

Thus, the regulatory changes 

discussed to this point add a total of 15 

days to the overall hearing process: 5 

days for the notice of intervention and 

response under 7 CFR 1.622(a)(1)(ii), 43 

CFR 45.22(a)(1)(ii), and 50 CFR 

221.22(a)(1)(ii); 5 days for the updated 

witness and exhibit lists under 7 CFR 

1.642(b)(1), 43 CFR 45.42(b)(1), and 50 

CFR 221.42(b)(1); and 5 days for the 

start of the hearing under 7 CFR 1.650, 

43 CFR 45.50, and 50 CFR 221.50. See 

the trial-type hearing process diagram in 

the discussion of 7 CFR 1.660, 43 CFR 

45.60, and 50 CFR 221.60, below. 

Some commenters observed that the 

interim regulations are silent on the 

location of the trial-type hearing, other 

than stating that the location will be 

decided at the prehearing conference. 

They suggested that each hearing be 

held in a field location commonly used 

by the parties to discuss matters 

concerning the hydropower project that 

is the subject of the hearing or, if such 

a locale is not possible, in Washington, 

DC. The commenters thus 

recommended that paragraph (a) of 

these regulations be amended to include 

as a final sentence, ‘‘A location local to 

the project and convenient to the parties 

will be preferred.’’ HRC Comments at 

46. 

The Departments agree that the 

hearings should be held in a location 

that is convenient to the parties 

whenever possible. However, no change 

in the regulatory language is necessary. 

As the rule is currently written, the ALJ 

has discretion to manage hearing 

locations. As the ALJs have done in 

prior cases, the Departments expect that 

an ALJ will take into consideration 

factors such as convenience to the 

parties and to the ALJ, the location of 

witnesses, and the availability of 

adequate hearing facilities when 

determining the location of a hearing. 

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? 

Paragraph (a) of these regulations has 

been revised to clarify that the parties’ 

right to present evidence is qualified by 

the requirements of other regulations 

governing the parties’ initial pleadings 

and prehearing submissions. 

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? 

Two changes have been made to these 

sections with respect to written direct 

testimony. First, paragraph (a) has been 

revised to distinguish between direct 

testimony for each party’s initial case 

and direct rebuttal testimony. As 

revised, the regulations provide that all 

direct testimony for each party’s initial 

case must be prepared and submitted in 

written form; it will be up to the ALJ to 

decide whether to allow rebuttal 

testimony, and if so, whether to require 

that it be submitted in written form also. 

Second, as previously mentioned, 

paragraph (a)(1)(iii) has been revised to 

increase from 5 days to 10 days the time 

that the parties have to submit their 

written testimony. These are the same 

additional 5 days provided by revised 7 

CFR 1.642(b)(1), 43 CFR 45.42(b)(1), and 

50 CFR 221.42(b)(1) concerning updated 

witness and exhibit lists, and they do 

not further extend the overall hearing 

process. 

7 CFR 1.657 Who has the burden of 

persuasion, and what standard of proof 

applies? 

43 CFR 45.57 Who has the burden of 

persuasion, and what standard of proof 

applies? 

50 CFR 221.57 Who has the burden of 

persuasion, and what standard of proof 

applies? 

The interim regulations specified that 

the standard of proof applicable to a 

trial-type hearing is a preponderance of 

the evidence. The interim final rule did 

not address the issue of which party 

bears the burden of proof, other than to 

request comments on that question. 70 

FR at 69813. 

Commenters generally supported the 

rule with respect to the standard of 

proof; and they agreed that the burden 

of persuasion should be assigned, in 

accordance with 5 U.S.C. 556(d), to the 

party that is ‘‘the proponent of [the] rule 

or order.’’ They disagreed, however, as 

to which party is the ‘‘proponent.’’ 

According to EEI/NHA, ‘‘In the 

mandatory conditioning context, the 

proponent is the Department that seeks 

to impose a condition on a license.’’ 

EEI/NHA comments at 19. PacifiCorp 

and Southern Co. filed comments 

agreeing with EEI/NHA. According to 

HRC, on the other hand, 

The hearing requester is undoubtedly the 

proponent of a final decision by the ALJ 

resolving disputed issues of material facts in 

the requester’s favor. While the Secretary’s 

filing of mandatory conditions gives rise to 

the dispute, the conditions themselves are 

not the subject of the hearing. The 

conditions, and whether they are supported 

by substantial evidence, are only reviewable 

under FPA section 313[,] 16 U.S.C. 825l. As 

such, the Secretary is not the proponent of 

an order by the ALJ in the agency trial-type 

hearing. Rather, the proponent is the hearing 

requester. 

HRC comments at 32. CBD and GYC 

filed similar comments on this issue. 

Other commenters argued that the 

hearing requester bears the burden of 

proof that a disputed issue of material 

fact exists and then the burden shifts to 

the Department to support its condition 

or prescription. 

The question of which party bears the 

burden of persuasion has been 

addressed in six proceedings initiated 

under the interim final rules. Each of six 

independent ALJs, including at least 

one from each Department, concluded 

that the hearing requester bears the 

burden of persuasion. Idaho Power Co. 

v. Bureau of Land Management, No. 

DCHD 2006–01 (DOI, May 3, 2006); In 

re Idaho Power Co. Hells Canyon 

Complex, No. 06–0001 (USDA, May 31, 

2006); In re Klamath Hydroelectric 

Project, No. 2006–NMFS–0001 (USCG, 

July 6, 2006); Public Service Co. of New 

Hampshire v. U.S. Fish and Wildlife 

Service, No. DCHD–2006–02 (DOI, Aug. 

9, 2006); In re Santee Cooper 

Hydroelectric Project, No. 2006–NMFS– 

0001 (USCG, Sept. 15, 2006); Avista 

Corp. v. Bureau of Indian Affairs, 

DCHD–2007–01 (DOI, Nov. 1, 2006). 

The Departments concur with HRC 

and the unanimous position of the ALJs 

on this issue. That position is consistent 

with the general rule that the burden of 

persuasion lies with the party seeking 

relief. See Schaffer v. Weast, 546 U.S. 49 

(2005) (characterizing 5 U.S.C. 556(d) as 

applying the general rule and placing 

the burden of persuasion on parents 


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challenging an individualized education 

plan for their child, not on the school 

district that proposed the plan). 

A hearing request under EPAct 

section 241 is a challenge to the factual 

basis for a Department’s preliminary 

condition or prescription. The validity 

of the condition or prescription is not 

itself at issue, as EPAct allows for a 

hearing only on disputed issues of 

material fact, and the ALJ has no 

authority to adopt, modify, or reject a 

preliminary condition or prescription. 

See 7 CFR 1.660(b)(3), 43 CFR 

45.60(b)(3), 50 CFR 221.60(b)(3). The 

requester seeks a decision from the ALJ 

that the facts are different from those 

assumed by the Department in its 

preliminary condition or prescription. 

The requester is thus the party seeking 

relief, the proponent of the order in the 

trial-type hearing, and the party that 

bears the burden of persuasion. 

The revised interim final regulations 

add a new paragraph (a) concerning the 

burden of persuasion and retain the 

standard of proof from the interim 

regulations in paragraph (b). The 

combined effect of the burden of 

persuasion and the standard of proof is 

that, in order for the hearing requester 

to prevail on any given issue, it must 

establish by a preponderance of the 

evidence that the facts are as the 

requester asserts, rather than as the 

Department asserts. If the ALJ finds that 

it is more likely than not that the facts 

are as the Department asserts, or that the 

evidence is so closely balanced that 

there is no preponderance in either 

direction, the requester will have failed 

to meet its burden of persuasion and the 

Department’s factual assertions on the 

issue will stand. 

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? 

Paragraph (a)(1) of these regulations 

has been revised to increase the time 

that the parties have to file their posthearing briefs from 10 days to 15 days. 

This change will add 5 days to the 

overall hearing process, beyond the 15 

days added by regulatory changes 

discussed previously. See the trial-type 

hearing process diagram, below. 

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? 

Commenters raised a number of issues 

related to these regulations, including 

the timing and finality of the ALJ’s 

decision and the ability of an ALJ from 

one Department to render a decision for 

another Department. 

Timing of the ALJ’s decision in 

relation to the TTH process. The interim 

regulations provided 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. As explained in 

the preamble to the interim final rules, 

the Departments interpreted EPAct’s 

requirement of ‘‘an agency trial-type 

hearing of no more than 90 days’’ as 

mandating that the portion of the overall 

hearing process from referral to the ALJ 

to final decision be completed within 90 

days. This, in turn, necessitated a highly 

compressed schedule for the prehearing 

conference, discovery, written 

testimony, and post-hearing briefing, so 

that the ALJ could meet the 90-day 

deadline for issuing a decision. 

The Departments received numerous 

comments about the tight time frames in 

the interim regulations and also 

received several suggestions for 

revisions extending certain procedural 

steps. In particular, several commenters 

argued that the time for the ALJ’s 

decision should fall outside the 90-day 

hearing time frame. EEI/NHA argued 

that the Departments had misconstrued 

the statute on this issue: 

[T]he extraordinarily compressed hearing 

schedule is inconsistent with the plain 

language of section 241, which provides that 

a ‘‘determination on the record,’’ i.e., the 

ALJ’s decision, shall occur ‘‘after opportunity 

for agency trial-type hearing . . . .’’ 

Therefore, the statute expressly requires that 

the ALJ’s ‘‘determination on the record’’ be 

made after completion of the hearing, not 

during the hearing process itself. 

EEI/NHA Comments at 12. EEI/NHA 

buttressed their argument by relying on 

the distinction between hearings, which 

are governed by one section of the APA, 

5 U.S.C. 556, and decisions, which are 

governed by another, 5 U.S.C. 557. 

Reading EPAct and the APA together, 

EEI/NHA concluded that 

the rule should be revised to require that 

only the hearing process itself, as defined by 

section 556 of the APA, be conducted within 

the 90-day limit. It is plainly inconsistent 

with the structure of the APA to include the 

briefing and decision-making process within 

the 90-day limit. 

EEI/NHA Comments at 14. Commenters 

also argued that the 90-day hearing 

clock should exclude discovery, begin 

to run with the submission of written 

direct testimony, and close after rebuttal 

testimony and cross-examination. 

The Departments agree in part. The 

provisions of EPAct and the APA that 

the commenters cite do provide a basis 

for considering the post-hearing briefing 

and decision stages of the hearing 

process to be outside the 90-day 

requirement. However, other provisions 

of EPAct militate against EEI/NHA’s 

expansive view that the 90-day period 

should not begin until discovery and 

other prehearing stages have been 

completed, and that the briefing and 

decision stages should extend for 75 

days beyond the end of the 90-day 

period. 

First, EPAct required the three 

Departments to ‘‘establish jointly, by 

rule, the procedures for such expedited 

trial-type hearing, including the 

opportunity to undertake discovery and 

cross-examine witnesses.’’ A schedule 

that allowed 90 days just for the taking 

of evidence at the hearing could hardly 

be considered ‘‘expedited.’’ Moreover, 

the statute’s specific mention of 

discovery indicates that Congress 

intended the 90 days to cover both 

prehearing and hearing procedures. 

Second, EEI/NHA cites APA section 

557 to support its argument that posttrial briefing should not be considered 

part of the 90-day hearing process, but 

rather part of the ‘‘decision.’’ EEI/NHA 

notes that this separate section 

addressing decisions specifically affords 

parties the opportunity to offer 

proposed findings of fact and 

conclusions. The relevant APA section, 

however, is 557(c), which expressly 

applies only to ‘‘a recommended, initial, 

or tentative decision, or a decision on 

agency review of the decision of 

subordinate employees.’’ 5 U.S.C. 

557(c). The ALJ’s opinion in an EPAct 

trial-type hearing does not fall within 

any of these decisional categories. The 

preamble to the interim final rules 

recognized that the EPAct trial-type 

hearing decision is not the type 

contemplated by section 557(c). 70 FR at 

69814. And at least one ALJ has 

recognized the unique nature of EPAct 

trial-type hearings, noting in the burden 

of proof context that the hearing 

provisions of the APA ‘‘do not however 

directly or clearly apply to the postures 

of the parties in this unique new 

proceeding authorized by the EPAct.’’ 

Avista Corp. at 6. 

Third, EPAct section 241 requires that 

the trial-type hearing be conducted 

‘‘within the time frame established by 


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3The only exception would be if the ALJ has to 

be replaced under 7 CFR 1.632, 43 CFR 45.32, or 

50 CFR 221.32 dealing with unavailability or 7 CFR 

1.633, 43 CFR 45.33, or 50 CFR 221.33 dealing with 

disqualification. 

4As noted above, a trial-type hearing process 

could be stayed for settlement negotiations up to 

120 days under revised 7 CFR 1.624, 43 CFR 45.24, 

or 50 CFR 221.24, further extending the overall 

hearing process, but only if FERC revises the time 

frame for the license proceeding to accommodate 

the stay period and any subsequent hearing process 

required if settlement discussions fail. 

[FERC] for each license proceeding.’’ A 

hearing process extending more than 6 

months after referral of the case to the 

ALJ, as urged by EEI/NHA, would be 

difficult to square with this 

Congressional mandate in many cases. 

Indeed, as noted previously in 

connection with 7 CFR 1.623, 43 CFR 

45.23, and 50 CFR 221.23, several 

procedural steps remain to be 

completed after issuance of the ALJ’s 

opinion; and many, if not all, of these 

subsequent steps are dependent on 

receipt of the ALJ’s opinion. Excluding 

discovery and post-trial briefing from 

the 90-day time frame and expending 90 

days solely on the presentation of 

testimony and evidence would extend 

the hearing process, push back these 

subsequent steps, and create delays in 

the licensing process—a result that 

Congress clearly sought to avoid. 

In any event, EPAct requires the 

Departments to afford license parties an 

‘‘opportunity for an agency trial-type 

hearing of no more than 90 days’’ 

(emphasis added). This language leaves 

it to the Departments’ discretion 

whether the hearing, even excluding 

post-hearing briefing and the ALJ’s 

decision, will take the full 90 days or 

something less than 90 days. 

In light of the competing 

considerations, the Departments have 

decided to extend some of the time 

frames in the hearing process that 

seemed particularly tight. As noted 

previously, 5 days have been added to 

the period for filing a notice of 

intervention and response, which 

occurs before the case is referred to the 

ALJ. Five days each have likewise been 

added to the periods for filing updated 

witness lists, exhibit lists, and written 

testimony, for commencing the hearing, 

and for filing post-hearing briefs, all of 

which occur after the case has been 

referred to the ALJ. 

Under this schedule, assuming a 5- 

day evidentiary hearing, the posthearing briefs would be filed about 90 

days after the case has been referred to 

the ALJ, as opposed to 75 days under 

the interim regulations. Under revised 7 

CFR 1.660(a)(1), 43 CFR 45.60(a)(1), and 

50 CFR 221.60(a)(1), the ALJ would then 

have 15 days after the deadline for filing 

the post-hearing briefs, which is 30 days 

from the close of the hearing, to render 

his or her decision. This timing means 

that the ALJ decision would be issued 

within 105 days after the case was 

referred to him or her. If necessitated by 

the length of the evidentiary hearing, 

the desirability of reply briefs, or other 

circumstances, the ALJ could extend the 

deadline for his or her decision under 

revised 7 CFR 1.631(c), 43 CFR 45.31(c), 

and 50 CFR 221.31(c), but not past 120 

days after the case was referred to the 

ALJ, under 7 CFR 1.660(a)(2), 43 CFR 

45.60(a)(2), and 50 CFR 221.60(a)(2).3

Thus, the Departments have decided 

to keep the (initial) post-hearing briefing 

within the 90-day schedule; but based 

on EEI/NHA’s argument, have allowed 

the ALJ 15 to 30 days past the 90-day 

period to render his or her decision. 

Even if the ALJ takes the full 30 days, 

resulting in a decision 120 days after the 

case was referred, the decision would 

come before comments are due to FERC 

on its draft NEPA document under 

FERC’s usual schedule set forth in 18 

CFR 5.25(c). Even as extended, 

therefore, the trial-type hearing can be 

conducted ‘‘within the time frame 

established by [FERC] for each license 

proceeding,’’ as required by EPAct.4

The following diagram shows the 

overall trial-type hearing process under 

the revised interim final rules. The 

number above each arrow shows the 

maximum number of days normally 

allowed from the completion of the 

previous step to the completion of the 

next step, while the number below each 

arrow shows the cumulative number of 

days from the beginning of the trial-type 

hearing process to the completion of the 

next step in the process. 


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Timing of the ALJ’s decision in 

relation to FERC’s NEPA process. The 

Hoopa Valley Tribe (HVT) raised a 

concern that, under the regulatory 

schedule, FERC will prepare its draft 

EIS at the same time the ALJ is resolving 

disputed material facts relating to the 

environment. HVT comments at 2. The 

Departments acknowledge that, in a 

given case, the ALJ’s resolution of 

disputed factual issues may affect the 

timing for completing the NEPA 

analysis and document. Therefore, on a 

case-by-case basis, FERC should 

consider whether supplemental NEPA 

analysis is appropriate and proceed to 

supplement when a resolution of 

disputed factual issues results in 

substantial changes that are relevant to 

environmental concerns. 

Finality of the ALJ’s decision. Some 

commenters recommended that the 

regulations be changed to provide that 

factual findings of an ALJ are advisory 

to the Secretaries of the Departments 

involved, rather than final. They 

contended that the Secretaries may not 

lawfully recognize an ALJ’s finding of 

facts as binding, particularly where the 

findings are rendered by the designated 

ALJ of a different Department in a 

consolidated case. The commenters also 

disputed that ALJ findings may be fairly 

characterized as wholly factual and 

devoid of substantive legal rulings. 

Finally, the commenters contended that 

there is no precedent for the approach 

taken in the interim rules, and they 

pointed to the advisory nature of 

decisions of FERC’s Dispute Resolution 

Panel (under 18 CFR 5.14). Specifically, 

the commenters suggested amending 

paragraph (d) of these regulations by 

changing the title from ‘‘Finality’’ to 

‘‘Review,’’ striking from the first 

sentence the word ‘‘final,’’ and 

replacing it with the term ‘‘advisory.’’ 

Regardless of what practice is 

followed for other aspects of the 

licensing process before FERC, EPAct 

mandates that disputed issues of 

material fact with respect to conditions 

and prescriptions ‘‘shall be determined 

in a single trial-type hearing’’ conducted 

by the relevant Department. 16 U.S.C. 

797(e), 811 (emphasis added). The 

Departments have reasonably construed 

the statutory language to require that the 

factual findings of an ALJ be used by the 

Secretaries of the Departments involved 

in developing modified conditions and 

prescriptions. 

The Departments’ view is supported 

by the district court’s holding in 

American Rivers: 

[T]he Energy Policy Act explicitly provides 

that ‘[a]ll disputed issues of material fact 

raised by any party shall be determined in a 

single trial-type hearing’ and makes no 

provision for appeals of that determination. 

By making the ALJ’s decision on factual 

issues final, it appears that the departments 

are simply interpreting what Congress has 

mandated and establishing agency 

procedures for fulfilling this mandate. 

2006 WL 2841929, * 7. 

The Secretaries’ authority to 

determine whether to issue mandatory 

conditions and prescribe fishways is not 

undercut by this approach. While the 

ALJ may determine specific facts, the 

resource agencies retain the 

responsibility of determining the weight 

and significance to be accorded such 

facts in finalizing mandatory conditions 

or prescriptions, in light of the resource 

agencies’ objectives for the resources 

they manage. The Departments also 

have an obligation to ensure that their 

modified conditions and prescriptions 

are supported by substantial evidence as 

informed by all relevant information in 

the administrative record, which may 

include new information that was not 

available during the hearing. 

The Departments also note that, 

contrary to the commenter’s suggestion, 

both EPAct and the interim final 

regulations clearly preserve the 

Secretaries’ discretion to determine 

whether to issue conditions or 

prescriptions and how to structure 

them. The regulations are clear that the 

ALJ is empowered to render only factual 

findings. While conclusions of law 

necessary to reach those findings (such 

as rulings regarding the admissibility of 

evidence) may be made, the ALJs may 

not include substantive legal 

conclusions with their final 

determinations. 

Nevertheless, to avoid confusion over 

different possible meanings of the term 

‘‘final,’’ the Departments have revised 


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paragraph (d) to state that the ALJ’s 

decision with respect to the disputed 

issues of material fact ‘‘will not be 

subject to further administrative 

review.’’ 

Ability of an ALJ from one 

Department to render a decision for 

another Department. With respect to the 

commenters’ objection that an ALJ in 

one Department may not render findings 

of fact that would be determinative for 

another Department, the Departments 

respond that this would happen only 

where cases have been consolidated due 

to the commonality of some of the 

issues. Consolidation in these 

circumstances will benefit both the 

Departments and the parties by avoiding 

duplication of effort, scheduling 

conflicts, and the risk of inconsistent 

results. The court in American Rivers 

recognized consolidation as a valid 

practice. 

As amended by EPAct, FPA sections 

4(e) and 18 provide that ‘‘[a]ll 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 in accordance 

with the regulations promulgated under 

this subsection . . . ’’ 16 U.S.C. 797(e), 

811 (emphasis added). Thus, when the 

Departments decide to consolidate 

hearing requests under these regulations 

and refer them to a single ALJ, they are 

exercising the authority given them by 

Congress to determine the relevant 

resource agency to conduct the hearing 

on their behalf. Such arrangements are 

also authorized by the Economy Act, 31 

U.S.C. 1535. 

The interim final rules explained that 

hearing requests received by NOAA 

would be referred to an appropriate ALJ 

office outside the Department of 

Commerce because neither NOAA nor 

the Department of Commerce has a staff 

of ALJs. See 70 FR at 69810. NOAA is 

taking this opportunity to clarify that, 

for any trial-type hearings arising with 

respect to NOAA conditions or 

prescriptions under FPA sections 4(e) or 

18, the United States Coast Guard Office 

of Administrative Law Judges, within 

the Department of Homeland Security, 

is an appropriate forum. 

Authority to refer trial-type hearings 

involving NOAA under the FPA to the 

Coast Guard’s Office of ALJs is set forth 

at 15 U.S.C. 1541, which provides that, 

with respect to any marine resource 

conservation law or regulation administered 

by the Secretary of Commerce acting through 

the National Oceanic and Atmospheric 

Administration, all adjudicatory functions 

which are required by chapter 5 of Title 5 to 

be performed by an Administrative Law 

Judge may be performed by the United States 

Coast Guard on a reimbursable basis. 

Coast Guard ALJs have thus handled 

proceedings as needed with respect to 

several hearing requests arising under 

the interim final regulations. 

Other changes. The revised interim 

final regulations make a few additional 

changes to 7 CFR 1.660, 43 CFR 45.60, 

and 50 CFR 221.60. They add a new 

paragraph (c)(2), requiring the ALJ to 

prepare a list of all the documents that 

constitute the complete record for the 

hearing process and to certify that the 

list is complete. Under paragraph (c)(3), 

that list is then sent along with the 

record to FERC for inclusion in the 

record for the license proceeding. Two 

new sentences are added to paragraph 

(c)(3), specifying what documents 

should be forwarded to FERC for cases 

in which a settlement is reached. 

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? 

As with the change to 7 CFR 

1.621(a)(2), 43 CFR 45.21(a)(2), and 50 

CFR 221.21(a)(2) discussed above, 

paragraph (a)(2) of these regulations has 

been revised to provide a longer period 

of time—60 days as compared to 30 

days—for a license party to submit a 

proposed alternative condition or 

prescription to a Department in cases 

where the Department is exercising its 

reserved authority after issuance of a 

license under 7 CFR 1.601(d)(2), 43 CFR 

45.1(d)(2), or 50 CFR 221.1(d)(2). 

Several commenters requested that 

the Departments extend the deadline for 

filing alternative conditions and 

prescriptions because they believe the 

interim regulations do not provide 

sufficient time to prepare alternatives or 

attempt informal resolution of contested 

issues. Specifically, these commenters 

suggested that the Departments extend 

the existing deadline for filing 

alternatives from 30 days to 45 days 

The Departments have decided to 

retain a concurrent filing deadline for 

requests for hearings and proposals of 

alternative conditions. As explained in 

the preamble to the interim final rules, 

the 30-day deadline for filing alternative 

conditions and prescriptions provides 

several benefits for the parties, FERC, 

and the Departments. See 70 FR 69807. 

Among these benefits are, first, that 

early submission of proposed 

alternatives helps ensure that such 

proposals are available to FERC during 

the development of its draft NEPA 

document. Second, the concurrent filing 

may help inform any settlement 

negotiations, thus potentially avoiding 

the need for a trial-type hearing. 

Both of these concerns remain 

relevant and have been reaffirmed in the 

Departments’ experience implementing 

the interim final regulations. In practice, 

there have been a number of cases 

where the relevant parties were able to 

settle disputes without the need for a 

trial-type hearing. In several of those 

cases, the Departments found that 

having proposed alternatives in hand to 

review along with the hearing request 

furthered the goal of identifying 

conditions and prescriptions that 

achieved necessary resources protection 

while avoiding litigation. 

Also in practice, parties did not 

appear to be unduly burdened by the 

requirement to concurrently file hearing 

requests with proposed alternatives, as 

reflected in the number of alternatives 

filed in a timely manner. We previously 

noted how proposed alternatives may 

factor into settlement discussions (see 

discussion of 7 CFR 1.625, 43 CFR 

45.25, and 50 CFR 22.25). 

A diagram of the overall alternative 

condition and prescription process 

under these revised interim final rules 

is found in the discussion of 7 CFR 

1.673, 43 CFR 45.73, and 50 CFR 221.73, 

below. 

7 CFR 1.672 May I file a revised 

proposed alternative? 

43 CFR 45.72 May I file a revised 

proposed alternative? 

50 CFR 221.72 May I file a revised 

proposed alternative? 

These sections are new. They provide 

that, within 20 days after issuance of the 

ALJ’s decision in a trial-type hearing, a 

license party may file a revised 

alternative condition or prescription, if 

two conditions are met. First, the party 

must have previously filed a proposed 

alternative under 7 CFR 1.671, 43 CFR 

45.71, or 50 CFR 221.71. And second, 

the revised proposed alternative must be 

designed to respond to one or more 

specific findings of fact by the ALJ. 

These sections afford an opportunity 

to license parties who have previously 

proposed an alternative to submit a 

revised alternative, if the facts as found 

by the ALJ following the trial-type 

hearing are different from those 

assumed by the party as the basis for its 

original alternative. The revised 

proposed alternative must identify the 

specific ALJ findings that it addresses 

and how the revised alternative differs 

from the original alternative. Filing a 

revised alternative will constitute a 

withdrawal of the original alternative. 


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7 CFR 1.673 When will the Forest 

Service file its modified condition or 

prescription? 

43 CFR 45.73 When will the bureau 

file its modified condition or 

prescription? 

50 CFR 221.73 When will NMFS file its 

modified condition or prescription? 

These sections have been 

redesignated because of the insertion of 

the revised proposed alternative 

provisions just discussed. They have 

also been renamed to focus on the 

timing of the Department’s filing of its 

modified condition or prescription. 

Under paragraph (a), the Department 

will generally take action on any 

proposed alternative and file its 

modified condition or prescription 

within 60 days after the deadline for 

filing comments on FERC’s draft NEPA 

document under 18 CFR 5.25(c) unless 

additional time is needed to complete 

supplemental analysis of the modified 

condition or prescription. This will 

typically be 75–90 days after the 

deadline for the parties to file revised 

alternatives under 7 CFR 1.672, 45 CFR 

45.72, or 50 CFR 221.72, depending on 

when the ALJ decision is issued and any 

necessary supplemental analysis is 

completed. However, under new 

paragraph (b), if the Department needs 

additional time to complete the steps set 

forth in paragraph (a), it will so inform 

FERC within that same 60-day period. 

See City of Tacoma. 

The following diagram shows the 

overall alternative condition and 

prescription process under the revised 

rules. The number above each arrow 

shows the maximum number of days 

normally allowed from the completion 

of the previous step to the completion 

of the next step, while the number 

below each arrow shows the cumulative 

number of days from the beginning of 

the alternatives process to the 

completion of the next step in the 

process. 

HRC suggested that the regulations 

expressly provide instructions to parties 

who wish to submit comments 

regarding proposed alternative 

conditions or prescriptions. It noted that 

the regulations already obligate the 

Departments to consider ‘‘evidence and 

supporting material provided by any 

license party,’’ comments on the 

preliminary condition or prescription, 

and comments on FERC’s draft or final 

NEPA documents. HRC suggested that 

the list of material to be considered in 

reviewing an alternative implies that 

any comments received on alternatives 

will be considered, without specifying 

how that should be done. 

HRC proposed that paragraph (a) of 

these regulations be amended to 

expressly include comments received 

on the proposed alternative. It further 

recommended that a new paragraph (e) 

be added to provide a discrete comment 

period on alternative conditions and 

prescriptions. Such comments, HRC 

suggested, should be accepted from any 

member of the public, whether or not 

they are parties to the license 

proceeding. According to HRC, the 

Departments cannot rely solely on 

comments submitted to the FERC on the 

draft NEPA document. 

Finally, HRC suggested adding a 

completely new section (to come after 7 

CFR 1.671, 43 CFR 45.71, and 50 CFR 

221.71) to address how comments on 

the proposed alternative may be 

submitted. It suggested that the 

regulations include: A 60-day comment 

period on proposed alternatives; filing 

and service requirements for comments 

similar to those for proposed 

alternatives; a requirement that parties 

provide specific citations to scientific 

studies, literature, and other documents 

and to supply copies of materials not 

already in the licensing proceeding; and 

a statement that parties may also file 

comments on the FERC NEPA document 

addressing the proposed alternative 

within the time frame established by 

FERC. 

The Departments disagree that a 

specific comment process for 

alternatives is needed. The statute lays 

out specific criteria for acceptance of an 

alternative, and the existing regulations 

require that the proponent submit 

information on each of the criteria. The 

regulations also require that alternatives 

and supporting documents be served on 

each party to the license proceeding, so 

that interested parties will have notice. 

Any license party is free to submit 

comments, either supporting or 

opposing a proposed alternative; and 

the Departments will consider comment 

materials timely submitted by all 

parties. 

As discussed below, the Departments 

are amending the regulations at 7 CFR 

1.674, 43 CFR 45.74, and 50 CFR 221.74 

to clarify that they will consider 

information regarding alternatives 

submitted by any license party by the 

close of the FERC NEPA comment 

period. 

7 CFR 1.674 How will the Forest 

Service analyze a proposed alternative 

and formulate its modified condition? 

43 CFR 45.74 How will the bureau 

analyze a proposed alternative and 

formulate its modified condition or 

prescription? 

50 CFR 221.74 How will NMFS 

analyze a proposed alternative and 

formulate its modified condition or 

prescription? 

Paragraph (a) of these regulations 

(redesignated like the previous section), 

has been revised slightly to clarify that 

a Department’s burden in reviewing any 

proposed alternatives is to consider 

evidence and supporting material 

provided by any license party or 

otherwise reasonably available to the 


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Department, recognizing that the 

Department has a limited time to 

complete its review and prepare the 

required written analysis. 

As mentioned above, a new paragraph 

(c) has been added to specify that the 

Department will consider evidence and 

supporting material provided by any 

license party by the deadline for filing 

comments on FERC’s draft NEPA 

document under 18 CFR 5.25(c). Given 

the complexity of the issues and the 

volume of material to be analyzed in the 

typical case, the Departments cannot 

reasonably be expected to continue to 

accept and incorporate new information 

right up until the FERC filing deadline 

for modified conditions and 

prescriptions. 

Finally, paragraph (d) (as 

redesignated) has been revised to 

specify that, if an alternative submitted 

by a license party under 7 CFR 1.671, 

43 CFR 45.71, or 50 CFR 221.71 was 

subsequently withdrawn, the 

Department will include in its statement 

to FERC an explanatory notation that a 

proposed alternative was voluntarily 

withdrawn. This provision responds to 

GAO’s recommendation that the 

Department provide additional 

information in cases where an 

alternative was withdrawn, e.g., as the 

result of settlement negotiations with 

the Department. 

The Departments received comments 

on various aspects of these regulations, 

including the consideration to be given 

alternative conditions and prescriptions, 

the meaning of ‘‘substantial evidence,’’ 

‘‘adequate protection,’’ and ‘‘cost,’’ and 

the applicability of FPA section 33. 

Consideration of alternatives. Some 

commenters proposed regulatory 

revisions to this section clarifying that 

the Department has the right to reject 

alternatives that do not meet the FPA 

section 33 criteria for resource 

protection, cost, and improved project 

operation, and specifying that the 

Department must consider all proposed 

alternatives at the same time. These 

concepts are already captured by EPAct 

and these regulations, including the 

regulatory time frames for submitting 

and considering alternatives. No 

additional regulatory language or 

clarification is necessary. 

The same commenters also proposed 

a two-tiered approach under which 

alternatives not meeting the section 33 

criteria for required acceptance would 

be moved into a category of alternatives 

that the Department ‘‘may consider.’’ 

HRC comments at 66. According to this 

proposal, where multiple alternatives 

have been submitted that do not meet 

the statutory criteria for required 

acceptance, ‘‘[a]ll of these alternatives 

are then compared to the original 

condition the Department proposed, and 

the Department makes a determination 

as to which best protects the resource.’’ 

HRC comments at 66. 

The commenters’ proposal appears to 

impose a new substantive standard for 

selection of ‘‘second tier’’ alternatives— 

a standard that Congress did not require. 

These regulations are limited to 

implementing the specific requirements 

of section 33. No regulation is needed to 

address Departmental action where an 

alternative fails to meet the statutory 

criteria, as the Departments retain 

discretion to consider all record 

documents. The commenters’ proposed 

revisions have not been adopted. 

Substantial evidence. Some 

commenters stated their assumption 

that the term ‘‘substantial evidence’’ in 

paragraph (b) refers only to the 

Department’s obligation to base any 

conditions and prescriptions on 

substantial evidence. To clarify, it is 

incumbent on the proponent of an 

alternative to provide the supporting 

information required by 7 CFR 1.671(b), 

43 CFR 45.71(b), or 50 CFR 221.71(b) for 

the Secretary to consider in determining 

whether the statutory criteria are met. 

Adequate protection. Some 

commenters suggested that this section 

clarify the criteria of ‘‘adequate 

protection’’ as specified in EPAct and 

paragraph (b)(2)(i) of these regulations 

for adoption of alternative conditions 

under section 33. They argued that, in 

light of Endangered Species Act 

regulations, ‘‘adequate protection’’ 

includes both conservation and recovery 

of threatened and endangered species. 

The ‘‘adequate protection’’ standard 

in section 33(a)(2) applies specifically to 

the alternatives analysis process for 

conditions under FPA section 4(e). 

Section 4(e) in turn authorizes the 

Secretaries of the Interior, Commerce, 

and Agriculture to condition 

hydropower licenses on provisions 

deemed ‘‘necessary for the adequate 

protection and utilization’’ of Federal 

reservations under their jurisdiction. 16 

U.S.C. 797(e) (emphasis added). 

Determining what constitutes 

‘‘adequate protection’’ when developing 

section 4(e) conditions falls within the 

sole authority and discretion of the 

relevant Secretary, and the answer will 

vary among cases and reservations 

depending on a variety of factors. 

Similarly, the relevant Secretary has 

sole authority and discretion to 

determine if a proposed alternative 

condition rises to the level of ‘‘adequate 

protection.’’ As such, the Departments 

do not believe that further clarification 

is feasible or necessary. 

Cost. The commenters also suggested 

that determining whether alternative 

conditions and prescriptions ‘‘cost 

significantly less to implement’’ under 

section 33 and paragraph (b)(1)(i) of 

these regulations not be limited to shortterm economic considerations, but also 

include consideration of both the longterm costs of lost resources and the 

benefits of protection. The Departments 

agree that the section 33 alternatives 

process should examine costs in a 

broader context than simply short-term 

economic costs to the project operator. 

No regulatory revision is required, 

however, to effectuate this point. 

Applicability of FPA section 33. 

Under paragraph (c)(1) of the interim 

rules, when the Department files its 

modified condition or prescription, it 

must also file a written statement 

explaining the basis for the condition or 

prescription and the reasons for not 

adopting any alternative. Under 

paragraph (d) of the interim rules, the 

written statement must demonstrate 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. 

Revised versions of these provisions are 

now found in paragraphs (d) and (e). 

Some commenters argued that the 

plain language of FPA section 33(a)(4) 

and (b)(4) must be interpreted to require 

that the Department file a written 

statement explaining the basis for its 

condition or prescription and show that 

it gave ‘‘equal consideration’’ to the 

factors identified in the statute whether 

or not a party has submitted a proposed 

alternative condition or prescription. 

Some commenters further suggested that 

a statement must be prepared for both 

preliminary and modified (final) 

conditions and prescriptions. 

The operative statutory language 

states, 

The Secretary concerned shall submit into 

the public record of the Commission 

proceeding with any condition under section 

4(e) or alternative condition it accepts under 

this section, a written statement explaining 

the basis for such condition, and reason for 

not accepting any alternative condition under 

this section. The written statement must 

demonstrate that the Secretary gave equal 

consideration to the effects of the condition 

adopted and 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); 

based on such information as may be 

available to the Secretary, including 

information voluntarily provided in a timely 


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manner by the applicant and others. The 

Secretary shall also submit, together with the 

aforementioned written statement, all 

studies, data, and other factual information 

available to the Secretary and relevant to the 

Secretary’s decision. 

16 U.S.C. 823d(a)(4). The language at 

section 823d(b)(4) (regarding fishway 

prescriptions) is substantially identical. 

The Departments disagree that the 

statute requires a written statement 

demonstrating ‘‘equal consideration’’ of 

the statutory factors in cases where no 

alternatives have been submitted. In 

determining the plain meaning of 

statutory language, the reviewing body 

should not confine itself to examining a 

particular statutory provision in isolation. 

The meaning—or ambiguity—of certain 

words or phrases may only become evident 

when placed in context. . . . It is a 

‘‘fundamental canon of statutory construction 

that the words of a statute must be read in 

their context and with a view to their place 

in the overall statutory scheme.’’ 

Food and Drug Admin. v. Brown & 

Williamson Tobacco Corp., 529 U.S. 

120, 132–33 (2000), quoting Davis v. 

Michigan Dept. of Treasury, 489 U.S. 

803, 809 (1989). 

Section 33 is entitled ‘‘Alternative 

conditions and prescriptions,’’ and it 

lays out a sequential series of steps for 

considering proposed alternatives and 

reaching a final determination. Section 

33(a)(l) permits any party to a 

hydropower license proceeding to 

propose an alternative condition. Under 

section 33(a)(2), the Secretary must 

accept an alternative if it ‘‘(A) provides 

for the adequate protection and 

utilization of the reservation; and (B) 

will either, as compared to the 

condition initially [deemed necessary] 

by the Secretary[,] (i) cost significantly 

less to implement; or (ii) result in 

improved operation of the project works 

for electricity production.’’ 16 U.S.C. 

823d(a)(2). 

When evaluating an alternative, 

section 33(a)(3) directs the Secretary to 

consider evidence otherwise available 

concerning ‘‘the implementation costs 

or operational impacts for electricity 

production of a proposed alternative.’’ 

And section 33(a)(4) directs the 

Secretary to submit a statement ‘‘with 

any condition under section 4(e) or 

alternative condition [the Secretary] 

accepts’’ to demonstrate that the 

Secretary ‘‘gave equal consideration to 

the effects of the condition adopted and 

alternatives not accepted.’’ 16 U.S.C. 

823d(a)(4). Again, the language at 

section 823d(b) (regarding fishway 

prescriptions) is substantially identical. 

Thus, a contextual analysis of section 

33 shows that the equal consideration 

requirement is triggered by the 

submission of an alternative condition 

or prescription. The requirement does 

not apply at the preliminary condition 

or prescription stage, since no 

alternatives have been submitted at that 

stage. And it does not apply at the 

modified condition or prescription 

stage, unless a license party has 

proposed an alternative. 

This contextual analysis of section 33 

is buttressed by an important practical 

consideration. In the absence of an 

alternative that has been proposed and 

supported by a license party under 7 

CFR 1.671(b), 43 CFR 45.71(b), or 50 

CFR 221.71(b), the Departments will 

generally lack sufficient information 

about the factors listed in section 

33(a)(4) and (b)(4)—energy supply, 

distribution, cost, and use; flood 

control; navigation; water supply; air 

quality; and other aspects of 

environmental quality—to provide a 

meaningful equal consideration 

statement. 

Nevertheless, the Departments as a 

matter of course submit written 

explanations of the basis for their 

conditions or prescriptions, together 

with record materials supporting those 

conditions or prescriptions. See 

redesignated 7 CFR 1.674(c)(1)(i), (2); 43 

CFR 45.74(c)(1)(i), (2); or 50 CFR 

221.74(c)(1)(i), (2). And as a matter of 

policy, in cases where a Department 

determines that it has sufficient 

information and staff resources to 

provide a meaningful analysis of the 

statutory factors even in the absence of 

an alternative, it may do so. No changes 

to the regulations are needed in 

response to the commenters’ concern. 

V. General Comments 

A. Disputed Issues of Material Fact 

As noted previously, some 

commenters urged that the final rules 

provide additional guidance on the 

types of issues that are appropriate for 

resolution in a trial-type hearing under 

EPAct. A ‘‘disputed issue of material 

fact’’ must meet three fundamental 

requirements: The matter raised must 

(1) concern a ‘‘fact,’’ (2) be ‘‘material,’’ 

and (3) be ‘‘disputed.’’ These are 

distinct inquiries, and all three must be 

fully considered by an ALJ. 

Factuality 

In the context of ordinary litigation, 

an issue of fact is one that would 

typically be left to a jury in a proceeding 

where a jury is the trier of fact. See 

William W. Schwarzer, Summary 

Judgment under the Federal Rules: 

Defining Genuine Issues of Material 

Fact, 99 FRD. 465, 470 (1984). 

Schwarzer explains: 

The dictionaries define a fact as a thing done, 

an action performed, or an event or 

occurrence. One can safely say, therefore, 

that a dispute over whether a thing was done 

or an event occurred is an issue of fact. Such 

facts, which may be called historical facts, 

are jury issues. 

Id. 

While this statement provides a useful 

starting point, the analogy to jury facts 

may be somewhat confusing in the 

context of EPAct trial-type hearings 

because the ALJ is the factfinder. And 

while Federal litigation may involve a 

range of issues from purely factual to 

purely legal, with some mixed issues, 

trial-type hearings under these rules are 

limited to resolving ‘‘disputed issues of 

material fact.’’ Clear and specialized 

standards must be applied to hearing 

requests under these regulations. 

To determine whether an issue is 

‘‘factual’’ for purposes of these 

regulations, it helps to first distinguish 

matters of fact from matters of law and 

policy. Substantive legal issues are 

excluded from the scope of the hearing. 

ALJs are empowered to render legal 

conclusions only to the extent necessary 

to facilitate the presentation of evidence 

and conduct of the trial on the 

underlying factual issues. See 7 CFR 

1.60(b)(1)(ii), 43 CFR 45.60(b)(1)(ii), 50 

CFR 221.60(b)(1)(ii); 70 FR at 69814. 

It would not be appropriate, for 

example, to hold a hearing on whether 

or not a measure that the Secretary is 

considering prescribing would 

constitute a ‘‘fishway,’’ which is a term 

that has been partially defined by 

Congress. Public Law 102–486, 

§ 1701(b), 106 Stat. 3008 (1992). Nor is 

the ALJ empowered to decide what 

substantive standards must be met to 

justify the Secretary’s exercise of 

discretion under sections 4(e) and 18 

(e.g., what level of impacts to resources 

from the existing project must be 

demonstrated to uphold a condition or 

prescription), or whether the Secretary’s 

condition or prescription is 

‘‘reasonable’’ or is supported by 

substantial evidence in the record. Such 

legal issues can be raised later, in any 

judicial review of a final FERC license, 

pursuant to 16 U.S.C. 825l. The EPAct 

trial-type hearing process does not 

substitute for or preempt judicial review 

of final agency decisions, which will be 

available only after the FERC license has 

been issued. 

Matters of policy are also not 

appropriate for a trial-type hearing. 

Examples of such matters include what 

types and levels of adverse effects to a 

species from a project would be 

‘‘acceptable,’’ or what kinds of 

mitigation measures may be desirable or 

‘‘necessary’’ to protect a resource. These 


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5The fact that EPAct requires a trial-type hearing 

for disputed issues of material fact does not alter 

this conclusion. The regulations make clear that the 

trial-type hearing and the decision to modify are 

two distinct proceedings: The hearing is strictly 

limited to resolving disputed issues of fact 

underlying the preliminary conditions; the ALJ’s 

are not matters of fact, but rather matters 

of policy judgment committed to the 

discretion of the Departments, in light of 

their management objectives for the 

resource. Under EPAct and these 

regulations, the Departments retain the 

prerogative to make these ultimate 

decisions in light of their policies; the 

ALJ may not appropriately address 

those issues. See 7 CFR 1.660(b)(3), 43 

CFR 45.60(b)(3), 50 CFR 221.60(b)(3). 

Having ruled out legal and policy 

issues, it is next useful to consider 

whether an issue presented may be 

either proved or disproved by a 

preponderance of the evidence. Good 

examples of factual inquiries that lend 

themselves to resolution via trial-type 

hearings are set forth in the November 

2005 preamble—whether a fishery was 

historically warm water or cold water, 

and whether fish historically were 

present above a dam. 70 FR at 69809. 

Using the framework discussed above, 

these are clearly ‘‘historical facts’’ (or 

‘‘jury facts’’). Such issues may be 

resolved based on available evidence 

and do not involve attempts to predict 

what may happen in the future. 

Materiality 

To be appropriate for resolution, a 

factual issue must be ‘‘material’’ to a 

Secretary’s consideration of the 

preliminary condition or prescription, 

i.e., it must be of the type that lawfully 

‘‘may affect a Department’s decision 

whether to affirm, modify, or withdraw 

[the] condition or prescription.’’ 7 CFR 

1.602, 43 CFR 45.2, 50 CFR 221.2. The 

inquiry is thus particular to the 

preliminary condition or prescription 

issued and the factual areas considered 

in the development of that condition or 

prescription. As an initial matter, the 

best indicators of the kinds of factual 

issues that may affect the Department’s 

ultimate decision are the factors 

identified in the preliminary condition 

or prescription and supporting 

justification. A factual issue not closely 

related to one of those factors would not 

be material in the absence of a showing 

that resolution of the issue would affect 

the Department’s ultimate decision. 

Similarly, issues that relate to the larger 

licensing proceeding and will be 

determined by FERC are not ‘‘material’’ 

to the Department’s decision and are not 

appropriate for a trial-type hearing. 

In addition to the Department’s stated 

basis for the preliminary condition or 

prescription, the ALJ must be aware of 

the relevant legal framework governing 

the exercise of conditioning and 

prescriptive authority. Only factual 

issues that involve the kinds of 

considerations that the Secretary may 

legally take into account should be 

viewed as potentially affecting the 

Secretary’s ultimate decision. In other 

words, whether an issue of fact is 

‘‘material’’ must be decided with 

reference to the substantive law 

governing the Department’s exercise of 

authority under the FPA. See Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986) (FRCP 56 context) (‘‘As to 

materiality, the substantive law will 

identify which facts are material’’). 

Other issues that are not material to 

a Department’s preliminary condition or 

prescription include those that blur the 

distinction between the EPAct trial-type 

hearing process and the separate 

alternatives process created under new 

FPA section 33. Trial-type hearings are 

limited to resolving disputed issues of 

material fact relating to a Department’s 

own preliminary condition or 

prescription. Where the hearing 

requester’s purpose is to establish facts 

that may support an alternative 

proposed under the distinct section 33 

process, but that do not otherwise affect 

the Department’s ultimate decision 

whether to affirm, modify, or withdraw 

its preliminary prescription or 

condition, then the issue raised is not 

‘‘material’’ to that condition or 

prescription. 

Such matters must be resolved by the 

relevant Department through the section 

33 process, and the ALJ should not 

make findings that would preempt the 

Department’s review. For example, it 

would be inappropriate to ask the ALJ 

to resolve whether an alternative 

method of passing fish would be more 

desirable or more effective than the 

method prescribed by the Secretary. 

Dispute 

EPAct provides for a hearing only 

where specific material facts are 

actually in dispute. The implementing 

regulations thus require that a hearing 

requester specifically identify the 

factual statements made or relied upon 

by an agency that are disputed. 7 CFR 

1.621(b)(2)(i), 43 CFR 45.(b)(2)(i), 50 

CFR 221.21(b)(2)(i). Further, the agency 

has the option of stipulating to the facts 

as presented in the hearing request. 7 

CFR 1.621(b)(1)(i), 43 CFR 45.(b)(1)(i), 

50 CFR 221.24(b)(1)(i). Such a 

stipulation will mean that there is no 

dispute to be resolved through a trialtype hearing. 

B. Separation of Functions 

Some commenters argued that the 

Departments should maintain a 

separation of functions during the 

EPAct section 241 trial-type hearing. 

Section 241 trial-type hearings are 

conducted by each Department’s 

independent adjudicative body—the 

Office of Hearings and Appeals for the 

Department of the Interior, the Office of 

Administrative Law Judges for the 

Department of Agriculture, and the 

United States Coast Guard’s Office of 

Administrative Law Judges for the 

Department of Commerce. Each of these 

ALJ offices is an independent entity 

with its own staff that is entirely 

separate from the conditioning or 

prescribing agency. Departmental staff 

that develop conditions or prescriptions 

or participate in the trial-type hearing 

have no more input into the ALJ’s 

decision-making than the other parties 

to the hearing process and are subject to 

the same prohibition on ex parte 

communication. 7 CFR 1.634, 43 CFR 

45.34, 50 CFR 221.34. The final rule 

therefore does not need a provision 

regarding separation of functions in 

section 241 trial-type hearings. 

Citing 5 U.S.C. 554(d)(2), these 

commenters further argued that 

Departmental staff involved in 

preparing preliminary conditions or 

prescriptions and representing the 

agency in the trial-type hearing are 

barred by the APA’s separation of 

functions provision from advising 

senior staff and officials on any decision 

related to modified conditions, 

prescriptions, or section 33 alternatives. 

The Departments disagree. Section 

554 provides that in every case of 

adjudication required by statute to be 

determined on the record after 

opportunity for an agency hearing . . . 

and an employee or agent engaged in 

the performance of investigative or 

prosecuting functions for an agency in 

a case may not, in that or a factually 

related case, participate or advise in the 

decision, recommended decision, or 

agency review pursuant to section 557 

of this title, except as witness or counsel 

in public proceedings. 5 U.S.C. 554(a), 

(d)(2) (emphasis added). 

A Department’s decision whether and 

how to modify the preliminary 

conditions or prescriptions does not 

constitute ‘‘an adjudication required by 

statute to be determined on the record 

after opportunity for an agency 

hearing.’’ See 2 K. Davis, Administrative 

Law Treatise § 10:7 (1979). Although 

FPA section 33 establishes specific 

criteria for considering alternatives, 

neither EPAct nor the FPA requires the 

Departments to conduct an on-therecord hearing for this separate and 

distinct phase.5 Similarly, in accordance 


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order is final, with no opportunity for 

administrative review; and the regulations 

specifically prohibit the ALJ from offering an 

opinion on how to modify the preliminary 

conditions. See 7 CFR 1.660(b), (d), 43 CFR 

45.60(b), (d), 50 CFR 221.60(b); 70 FR 69807. 

6See 7 CFR 1.660(b), (d), 43 CFR 45.60(b), (d), 50 

CFR 221.60(b), (d); 70 FR 69807. 

with FERC regulations, the Departments 

have long provided modified conditions 

and prescriptions based on additional 

information, but they are under no 

statutory requirement to provide an onthe-record hearing when they do so. 18 

CFR 4.34 (b)(4), 5.24(d), 5.25(d). 

Moreover, section 554(d)(2) only bars 

participation in decisions or agency 

reviews pursuant to 5 U.S.C. 557. 

Section 557 by its terms applies to 

initial hearing decisions or 

recommendations by a qualified 

presiding employee with the potential 

for subsequent agency review. 

Modifying preliminary conditions or 

prescriptions involves no such hearing, 

no presiding employee, and no initial or 

recommended decision. Instead, the 

Department conducts the appropriate 

review and analysis and provides 

modified conditions or prescriptions to 

FERC with accompanying written 

findings. 7 CFR 1.673, 43 CFR 45.73, 50 

CFR 221.73. Accordingly, section 554 

does not apply to the Departments’ 

decision whether and how to modify 

preliminary conditions or prescriptions. 

EEI and NHA cite Amos Treat & Co., 

Inc. v. SEC, 306 F.2d 260, 266–67 (D.C. 

Cir. 1962) and American Gen. Ins. Co. 

v. FTC, 589 F.2d 462 (9th Cir. 1979), for 

the proposition that any participation by 

agency staff in a decision to modify 

conditions is necessarily unfair. EEI/

NHA Comments at 20–21. In each cited 

case, however, the agency employee 

who investigated or prosecuted an issue 

went on to become the decisionmaker 

on the same issues in the same 

proceeding. Such cases do not apply 

here, where a Department’s decision to 

modify conditions or prescriptions does 

not address the same specific matters 

addressed by the ALJ. Indeed, as noted 

above, the ALJ is prohibited from 

offering an opinion on how to modify 

the preliminary conditions and the 

ALJ’s hearing order is final.6 Courts 

have consistently rejected arguments of 

unfairness relating to multiple agency 

functions in cases involving such 

distinct phases of a proceeding. See, 

e.g., Withrow v. Larkin, 421 U.S. 35 

(1975); RSR Corp. v. FTC, 656 F.2d 718 

(D.C. Cir. 1981); Porter County v. NRC, 

606 F.2d 1363 (D.C. Cir. 1979); 

Pangburn v. CAB, 311 F.2d 349 (1st Cir. 

1962). 

C. Ex Parte Communication 

Some commenters argued that the 

section 33 alternatives process 

constitutes a quasi-judicial proceeding 

and thus should be subject to the APA’s 

prohibition on ex parte 

communications. Under 5 U.S.C. 

557(d)(1), no interested person outside 

the agency shall make or knowingly 

cause to be made to any member of the 

body comprising the agency, 

administrative law judge, or other 

employee who is or may reasonably be 

expected to be involved in the 

decisional process of the proceeding, an 

ex parte communication relevant to the 

merits of the proceeding. 

As discussed previously, section 557 

by its terms applies only to on-therecord hearings required by statute. 

Section 33 calls for a process of agency 

analysis subject to specific statutory 

criteria, but neither EPAct nor the FPA 

requires the Departments to conduct an 

on-the-record hearing when considering 

alternative conditions and prescriptions. 

As such, the APA’s prohibition on ex 

parte communication does not apply to 

the section 33 alternatives process. 

VI. Consultation With FERC 

Pursuant to EPAct’s requirement that 

the agencies promulgate rules 

implementing EPAct section 241 ‘‘in 

consultation with the Federal Energy 

Regulatory Commission,’’ the agencies 

have consulted with FERC regarding the 

content of these revised interim final 

rules. 

VII. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866 and E.O. 13563) 

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 

expedited trial-type hearing and 

alternatives processes represent a novel 

approach to public participation and 

administrative review and have 

interagency implications. Therefore, 

OMB has reviewed these rules under 

Executive Order 12866. 

Executive Order 13563 reaffirms the 

principles of Executive Order 12866 

while calling for improvements in the 

nation’s regulatory system to promote 

predictability; to reduce uncertainty; 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. Executive Order 13563 

emphasizes further than regulations 

must be based on the best available 

science and that the rulemaking process 

must allow for public participation and 

an open exchange of ideas. These 

revised interim final rules have been 

developed in a manner consistent with 

these requirements. 

B. Regulatory Flexibility Act 

As noted previously, the court in 

American Rivers v. U.S. Department of 

the Interior, 2006 WL 2841929 (W.D. 

Wash. 2006), upheld the Departments’ 

November 17, 2005, interim final rules, 

holding that they were exempt from the 

APA’s notice and comment 

requirements because they were 

procedural and interpretative in nature. 

These revised interim final rules are 

likewise procedural and interpretative 

in nature and do not require publication 

of a notice of proposed rulemaking. As 

a result, they are exempt from the 

requirements of the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq. 

Even if these rules were not exempt, 

they will not have a significant 

economic effect on a substantial number 

of small entities, for the reasons 

explained in the preamble to the 

November 17, 2005, interim final rules, 

70 FR 69815–16. Because these rules are 

exempt, a regulatory flexibility analysis 

is not required and, thus, none was 

prepared. 

C. 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 the 2005 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 


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of United States-based enterprises to 

compete with foreign-based enterprises. 

D. 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. The 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. 

E. 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. 

F. 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. 

G. Civil Justice Reform (E.O. 12988) 

In accordance with Executive Order 

(E.O.) 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 E.O. 12988. 

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 before 

FERC and in court. 

H. 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 and approved it under OMB 

control number 1094–0001. This 

approval expires November 30, 2015. 

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. At the time of our request for 

OMB approval in 2009, we estimated 

that an average of 62 alternatives would 

be submitted per year over the next 3 

years. We estimated that the average 

burden for preparing and submitting an 

alternative would be 200 hours; thus, 

the total information collection burden 

was estimated to be 12,400 hours per 

year. 

I. 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 

exclusion’’ as a category of actions that 

a department has determined normally 

do not, individually or cumulatively, 

have a significant effect on the human 

environment, and, therefore in the 

absence of extraordinary circumstances, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 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: 43 CFR part 46. 

Commerce: NOAA Administrative 

Order 216–6, sections 5.05 and 

6.03c3(i). 

J. Consultation With Indian Tribes (E.O. 

13175) 

Under the criteria in Executive Order 

13175, the Departments have assessed 

the impact of these rules and have 

determined that they do not directly 

affect federally recognized Indian tribes 

or 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 continue to consult 

with tribal governments when 

developing section 4(e) conditions and 

section 18 prescriptions needed to 

address the management of those 

resources. 

K. Effects on the Nation’s Energy Supply 

(E.O. 13211) 

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. 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 


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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). 

L. Data Quality Act 

In developing this rule, we did not 

conduct or use a study, experiment, or 

survey requiring peer review under the 

Data Quality Act, Public Law 106–554. 

M. Clarity of These Regulations 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that you find 

unclear, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

List of Subjects 

7 CFR Part 1 

Administrative practice and 

procedure, Fisheries, Hydroelectric 

power, Indians—lands, National forests, 

National parks, National wildlife refuge 

system, Public land, Waterways, 

Wildlife. 

43 CFR Part 45 

Administrative practice and 

procedure, Fisheries, Hydroelectric 

power, Indians—lands, National forests, 

National parks, National wildlife refuge 

system, Public land, Waterways, 

Wildlife. 

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: March 10, 2015. 

Robert F. Bonnie, 

Undersecretary—Natural Resources and 

Environment, U.S. Department of Agriculture. 

Kristen J. Sarri, 

Principal Deputy Assistant Secretary—Policy, 

Management and Budget, U.S. Department 

of the Interior. 

Dated: December 15, 2014. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration, U.S. 

Department of Commerce. 

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 follows: 

Title 7—Department of Agriculture 

PART 1—ADMINISTRATIVE 

REGULATIONS 

■ 1. The authority citation for part 1 

continues to read as follows: 

Authority: 5 U.S.C. 301, unless otherwise 

noted. 

■ 2. Revise subpart O to read as follows: 

Subpart O—Conditions in FERC 

Hydropower Licenses 

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? 

1.602 What terms are used in this subpart? 

1.603 How are time periods computed? 

1.604 What deadlines apply to the trial-type 

hearing and alternatives processes? 

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 this 

subpart? 

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 Will hearing requests be 

consolidated? 

1.624 Can a hearing process be stayed to 

allow for settlement discussions? 

1.625 How will the Forest Service respond 

to any hearing requests? 

1.626 What will the Forest Service do with 

any hearing requests? 

1.627 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? 

1.6.56 What are the requirements for 

transcription of the hearing? 

1.6.57 Who has the burden of persuasion, 

and what standard of proof applies? 

1.658 When will the hearing record close? 

1.659 What are the requirements for posthearing briefs? 

1.660 What are the requirements for the 

ALJ’s decision? 

Alternatives Process 

1.670 How must documents be filed and 

served under this subpart? 

1.671 How do I propose an alternative? 

1.672 May I file a revised proposed 

alternative? 

1.673 When will the Forest Service file its 

modified condition? 


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1.674 How will the Forest Service analyze 

a proposed alternative and formulate its 

modified condition? 

1.675 Has OMB approved the information 

collection provisions of this subpart? 

General Provisions 

§ 1.601 What is the purpose of this 

subpart, and to what license proceedings 

does it apply? 

(a) Hearing process. (1) The 

regulations in §§ 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 

part 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 Commerce and the 

Department of the Interior the authority 

to develop mandatory conditions and 

prescriptions for inclusion in a 

hydropower license. Where the Forest 

Service 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 § 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 §§ 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 § 1.660(a). 

(b) Alternatives process. The 

regulations in §§ 1.670 through 1.674 

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) Reserved authority. Where the 

Forest Service has notified or notifies 

FERC that it is reserving its authority to 

develop one or more conditions at a 

later time, the hearing and alternatives 

processes under this subpart for such 

conditions will be available if and when 

the Forest Service exercises its reserved 

authority. 

(d) Applicability. (1) This subpart 

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 have been or are 

filed with FERC before FERC issues the 

license. 

(2) This subpart also applies to any 

exercise of the Forest Service’s reserved 

authority under paragraph (c) of this 

section with respect to a hydropower 

license issued before or after November 

17, 2005. 

§ 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, OALJ, 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 

hearing under § 1.621 can participate as 

a party to the hearing under § 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 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). 

NFS means the National Forest 

System and refers to: 

(1) Federal land managed by the 

Forest Service; and 

(2) The Deputy Chief of the National 

Forest System, located in the Forest 

Service’s Washington, DC, office. 

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 § 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 § 1.623; 

(3) The Forest Service; and 

(4) Any other Department that has 

filed a preliminary condition or 

prescription, with respect to a hearing 

process consolidated under § 1.623. 

Person means an individual; a 

partnership, corporation, association, or 

other legal entity; an unincorporated 

organization; and any Federal, State, 


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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 

§ 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. 

§ 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 § 1.621, a 

notice of intervention and response 

under § 1.622, an answer under § 1.625, 

or any document under §§ 1.670 

through 1.674. 

(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 § 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 § 1.660. 

§ 1.604 What deadlines apply to the trialtype hearing and alternatives processes? 

(a) The following table summarizes 

the steps in the trial-type hearing 

process under this subpart 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 

subpart or by the ALJ, the deadlines as 

set by those other sections or by the ALJ 

control. 

Process step Process day Must generally be completed See section 

(1) Forest Service files preliminary condition(s) with 

FERC.

0 ...................................................................................... 1.620. 

(2) License party files request for hearing ................... 30 Within 30 days after Forest Service files preliminary 

condition(s) with FERC.

1.621(a). 

(3) Any other license party files notice of intervention 

and response.

50 Within 20 days after deadline for filing requests for 

hearing.

1.622(a). 

(4) NFS refers case to ALJ office for hearing and 

issues referral notice to parties.

85 Within 55 days after deadline for filing requests for 

hearing.

1.626(a). 

(5) Parties may meet and agree to discovery (optional 

step).

86–91 Before deadline for filing motions seeking discovery .. 1.641(a). 

(6) ALJ office sends docketing notice, and ALJ issues 

notice setting date for initial prehearing conference.

90 Within 5 days after effective date of referral notice .... 1.630. 

(7) Party files motion seeking discovery from another 

party.

92 Within 7 days after effective date of referral notice .... 1.641(d). 

(8) Other party files objections to discovery motion or 

specific portions of discovery requests.

99 Within 7 days after service of discovery motion ......... 1.641(e). 

(9) Parties meet to discuss discovery and hearing 

schedule.

100–104 Before date set for initial prehearing conference ........ 1.640(d). 

(10) ALJ conducts initial prehearing conference ......... 105 On or about 20th day after effective date of referral 

notice.

1.640(a). 

(11) ALJ issues order following initial prehearing conference.107 Within 2 days after initial prehearing conference ........ 1.640(g). 

(12) Party responds to interrogatories from another 

party as authorized by ALJ.

120–22 Within 15 days after ALJ’s order authorizing discovery during or following initial prehearing conference.1.643(c). 

(13) Party responds to requests for documents, etc., 

from another party as authorized by ALJ.

120–22 Within 15 days after ALJ’s order authorizing discovery during or following initial prehearing conference.1.645(c). 

(14) Parties complete all discovery, including depositions, as authorized by ALJ.130 Within 25 days after initial prehearing conference ...... 1.641(i). 

(15) Parties file updated lists of witnesses and exhibits.140 Within 10 days after deadline for completion of discovery.1.642(b). 

(16) Parties file written direct testimony ....................... 140 Within 10 days after deadline for completion of discovery.1.652(a). 

(17) Parties complete prehearing preparation and ALJ 

commences hearing.

155 Within 25 days after deadline for completion of discovery.1.650(a). 

(18) ALJ closes hearing record .................................... 160 When ALJ closes hearing ........................................... 1.658. 

(19) Parties file post-hearing briefs .............................. 175 Within 15 days after hearing closes ............................ 1.659(a). 

(20) ALJ issues decision .............................................. 190 Within 30 days after hearing closes ............................ 1.660(a). 


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(b) The following table summarizes 

the steps in the alternatives process 

under this subpart 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 subpart, 

the deadlines as set by those other 

sections control. 

Process step Process day Must generally be completed See section 

(1) Forest Service files preliminary condition(s) with 

FERC.

0 ...................................................................................... 1.620. 

(2) License party files alternative condition(s) ............. 30 Within 30 days after Forest Service files preliminary 

condition(s) with FERC.

1.671(a). 

(3) ALJ issues decision on any hearing request ......... 190 Within 30 days after hearing closes (see previous 

table).

1.660(a). 

(4) License party files revised alternative condition(s) 

if authorized.

210 Within 20 days after ALJ issues decision ................... 1.672(a). 

(5) Forest Service files modified condition(s) with 

FERC.

300 Within 60 days after the deadline for filing comments 

on FERC’s draft NEPA document.

1.673(a). 

Hearing Process 

Representatives 

§ 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 

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 

§ 1.611; 

(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 § 1.613. 

(e) Disqualification. The ALJ may 

disqualify any representative for 

misconduct or other good cause. 

Document Filing and Service 

§ 1.611 What are the form and content 

requirements for documents under this 

subpart? 

(a) Form. Each document filed in a 

case under §§ 1.610 through 1.660 must: 

(1) Measure 81⁄2 by 11 inches, except 

that a table, chart, diagram, or other 

attachment may be larger if folded to 

81⁄2 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 §§ 1.610 through 1.660 must 

begin with a caption that sets forth: 

(1) The name of the case under 

§§ 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 §§ 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 §§ 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). 

§ 1.612 Where and how must documents 

be filed? 

(a) Place of filing. Any documents 

relating to a case under §§ 1.610 through 

1.660 must be filed with the appropriate 

office, as follows: 

(1) Before NFS refers a case for 

docketing under § 1.626, any documents 

must be filed with NFS by directing 

them to the ‘‘Deputy Chief, NFS.’’ 

(i) For delivery by regular mail, 

address to USDA Forest Service, Attn: 

Lands Staff, Mail Stop 1124, 1400 

Independence Ave. SW., Washington, 

DC 20250–1124. 

(ii) For delivery by hand or private 

carrier, deliver to USDA Forest Service, 

Yates Bldg. (4 SO), 201 14th Street SW., 

Washington, DC (SW. corner of 14th 

Street and Independence Ave. SW.); 

phone (202) 205–1248; facsimile (703) 

605–5117. Hand deliverers must obtain 

an official date-time-stamp from Lands 

Staff. 

(2) The Forest Service will notify the 

parties of the date on which NFS refers 

a case for docketing under § 1.626. After 

that date, any documents must be filed 

with: 

(i) The Hearing Clerk, if OALJ will be 

conducting the hearing. The Hearing 

Clerk’s address, telephone number, and 

facsimile number are set forth in 

§ 1.602; or 

(ii) The hearings component of or 

used by another Department, if that 

Department will be conducting the 


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hearing. 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 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. 

§ 1.613 What are the requirements for 

service of documents? 

(a) Filed documents. Any document 

related to a case under §§ 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 § 1.621 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 § 1.622 

must be: 

(i) Delivered or sent to FERC, the 

license applicant, any person who has 

filed a request for hearing under § 1.621, 

and the Forest Service office that 

submitted the preliminary conditions to 

FERC, 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 § 1.625 and any other 

document filed by any party to the 

hearing process must be delivered or 

sent to 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 Hearing 

Clerk or ALJ. A complete copy of any 

notice, order, decision, or other 

document issued by the Hearing Clerk 

or the ALJ under §§ 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. 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 §§ 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 

§ 1.620 What supporting information must 

the Forest Service provide with its 

preliminary conditions? 

(a) Supporting information. (1) When 

the Forest Service files its preliminary 

conditions with FERC, it must include 

a rationale for each condition, 

explaining why the Forest Service 

deems the condition necessary for the 

adequate protection and utilization of 

the affected NFS lands, 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 its preliminary conditions; and 

(ii) Provide copies to the license 

applicant. 

(b) Service. The Forest Service will 

serve copies of its preliminary 

conditions on each license party. 

§ 1.621 How do I request a hearing? 

(a) General. To request a hearing on 

disputed issues of material fact with 

respect to any preliminary condition 

filed by the Forest Service, you must: 

(1) Be a license party; and 

(2) File with NFS, at the appropriate 

address provided in § 1.612(a)(1), a 

written request for a hearing: 

(i) For a case under § 1.601(d)(1), 

within 30 days after the Forest Service 

files a preliminary condition with FERC; 

or 

(ii) For a case under § 1.601(d)(2), 

within 60 days after the Forest Service 

files a preliminary condition 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 the Forest 

Service under § 1.620(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 


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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 § 1.613(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. 

§ 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, at the appropriate 

address provided in § 1.612(a)(1), a 

notice of intervention and a written 

response to any request for a hearing 

within 20 days after the deadline in 

§ 1.621(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 § 1.621(b). 

(1) If you agree with the information 

provided by the Forest Service under 

§ 1.620(a) or by the requester under 

§ 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 § 1.621(b). 

(3) Your notice of intervention and 

response must also indicate whether or 

not you consent to service by electronic 

means under § 1.613(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. 

§ 1.623 Will hearing requests be 

consolidated? 

(a) Initial Department coordination. If 

NFS 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 (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. 

§ 1.624 Can a hearing process be stayed 

to allow for settlement discussions? 

(a) Prior to referral to the ALJ, the 

hearing requester and the Forest Service 

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 § 1.622(a)(1)(ii). 

§ 1.625 How will the Forest Service 

respond to any hearing requests? 

(a) General. NFS will determine 

whether to answer any hearing request 

under § 1.621 on behalf of the Forest 

Service. 

(b) Content. If NFS answers a hearing 

request: 

(1) For each of the numbered factual 

issues listed under § 1.621(b)(1), NFS’s 

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) NFS’s answer must also indicate 

whether the hearing request will be 

consolidated with one or more other 

hearing requests under § 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 


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information for the appropriate 

Department hearings component. 

(3) If the Forest Service plans to rely 

on any scientific studies, literature, and 

other documented information that are 

not already in the license proceeding 

record, a copy of each item must be 

provided with NFS’s answer. 

(4) NFS’s answer must also indicate 

whether or not the Forest Service 

consents to service by electronic means 

under § 1.613(c)(4) and, if so, by what 

means. 

(c) Witnesses and exhibits. NFS’s 

answer must also contain a list of the 

Forest Service’s witnesses and exhibits 

that the Forest Service 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 NFS 

elects not to answer 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 

§ 1.642(b); and 

(3) NFS must include with its case 

referral under § 1.623 a notice in lieu of 

answer 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 § 1.623, and the 

statement required by paragraph (b)(4) 

of this section. 

§ 1.626 What will the Forest Service do 

with any hearing requests? 

(a) Case referral. Within 55 days after 

the deadline in § 1.621(a)(2) or 35 days 

after the expiration of any stay period 

under § 1.624, whichever is later, 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) Two copies of any preliminary 

condition under § 1.620; 

(2) The original and one copy of any 

hearing request under § 1.621; 

(3) The original and one copy of any 

notice of intervention and response 

under § 1.622; 

(4) The original and one copy of any 

answer or notice in lieu of answer under 

§ 1.625; and 

(5) The original and one copy of a 

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 effective date of the case 

referral to the appropriate Department 

hearings component. 

(d) Delivery and service. (1) NFS must 

refer the case to the appropriate 

Department hearings component by one 

of the methods identified in 

§ 1.612(b)(1)(i) and (b)(1)(ii). 

(2) The Forest Service must serve a 

copy of the referral notice on FERC and 

each party to the hearing by one of the 

methods identified in § 1.613(c)(1) and 

(c)(2). 

§ 1.627 What regulations apply to a case 

referred for a hearing? 

(a) If NFS refers the case to the OALJ, 

these regulations will continue to apply 

to the hearing process. 

(b) If NFS refers the case to the 

Department of Interior’s Office of 

Hearing and Appeals, the regulations at 

43 CFR 45.1 et seq. will apply from that 

point on. 

(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 

on. 

General Provisions Related to Hearings 

§ 1.630 What will OALJ do with a case 

referral? 

Within 5 days after the effective date 

stated in the referral notice under 

§ 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 

CFR 221.26(c)(4): 

(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 § 1.640. This notice 

may be combined with the docketing 

notice under paragraph (a)(3) of this 

section. 

§ 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 relating to Forest Service’s or 

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 § 1.647; 

(c) Shorten or enlarge time periods set 

forth in these regulations, except that 

the deadline in § 1.660(a)(2) can be 

extended only if the ALJ must be 

replaced under § 1.632 or 1.633; 

(d) Rule on motions; 

(e) Authorize discovery as provided 

for in §§ 1.641 through 1.647; 

(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 

§ 1.660(b) regarding any disputed issue 

of material fact; and 

(l) Take any other action authorized 

by law. 

§ 1.632 What happens if the ALJ becomes 

unavailable? 

(a) If the ALJ becomes unavailable or 

otherwise unable to perform the duties 

described in § 1.631, the Hearing Clerk 

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. 


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§ 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. 

§ 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. 

§ 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 

§ 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 

§§ 1.610 through 1.613 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. 

Prehearing Conferences and Discovery 

§ 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 notice under § 1.630, on 

or about the 20th day after the effective 

date stated in the referral notice under 

§ 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 

CFR 221.26(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 § 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 deadlines for submission of 

written testimony under § 1.652 and 

exchange of exhibits to be offered as 

evidence under § 1.654; 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. 

§ 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 as provided 

in § 1.643; 

(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 § 1.640(g). The ALJ may 

authorize discovery only if the party 

requesting discovery demonstrates: 

(1) That the discovery will not 

unreasonably delay the hearing process; 


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(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 § 1.626(c)(4), 43 

CFR 45.26(c)(4), or 50 CFR 221.26(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 (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 nonexpert 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. 

§ 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 

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 § 1.621(c), 

§ 1.622(c), or § 1.625(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 § 1.621(c), § 1.622(c), or 

§ 1.625(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 § 1.621(c), 

§ 1.622(c), or § 1.625(c), or paragraph (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. 

§ 1.643 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 

§ 1.641(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 § 1.641(b) with respect to 

any discovery motion requesting the use 

of written interrogatories. The order 

will: 


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(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. 

§ 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 § 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. The ALJ will issue an 

order under § 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 crossexamination. 

(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 § 1.653. 

§ 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 § 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. The ALJ will issue an 

order under § 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 

order under paragraph (a) of this 

section. 

§ 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 § 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 


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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. 

§ 1.64 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 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 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. 

Hearing, Briefing, and Decision 

§ 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 

§ 1.640, 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. 

§ 1.651 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 

§§ 1.621(c), 1.622(c), 1.625(c), 1.642(b), 

and 1.652; 

(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. 

§ 1.652 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 crossexamination 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 § 1.647 directing a witness to 

testify by telephonic conference call. 

§ 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 § 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. 

(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. 


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(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. 

§ 1.654 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. 

§ 1.655 What evidence is admissible at the 

hearing? 

(a) General. (1) Subject to the 

provisions of § 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 

must concisely state the grounds. A 

ruling on every objection must appear in 

the record. 

§ 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 OALJ 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. 

§ 1.657 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. 

§ 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 

§ 1.656(b). 

§ 1.659 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. 

§ 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 § 1.658; or 

(2) 120 days after the effective date 

stated in the referral notice under 

§ 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 

CFR 221.26(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 


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(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. 825l(b). 

Alternatives Process 

§ 1.670 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 § 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 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 

§ 1.613(c); or 

(ii) Regular mail. 

(2) The provisions of § 1.613(d) 

regarding a certificate of service apply to 

service under this subpart. 

§ 1.671 How do I propose an alternative? 

(a) General. To propose an alternative 

condition, you must: 

(1) Be a license party; and 

(2) File a written proposal with NFS, 

at the appropriate address provided in 

§ 1.612(a)(1): 

(i) For a case under § 1.601(d)(1), 

within 30 days after the Forest Service 

files its preliminary conditions with 

FERC; or 

(ii) For a case under § 1.601(d)(2), 

within 60 days after the Forest Service 

files its proposed 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. 

§ 1.672 May I file a revised proposed 

alternative? 

(a) Within 20 days after issuance of 

the ALJ’s decision under § 1.660, you 

may file with NFS, at the appropriate 

address provided in § 1.612(a)(1), a 

revised proposed alternative condition 

if: 

(1) You previously filed a proposed 

alternative that met the requirements of 

§ 1.671; 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 

§ 1.671(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. 

§ 1.673 When will the Forest Service file its 

modified condition? 

(a) Except as provided in paragraph 

(b) of this section, if any license party 

proposes an alternative to a preliminary 

condition or prescription under 

§ 1.671,the Forest Service 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 § 1.674 any 

alternative condition proposed under 

§ 1.671 or 1.672; and 

(2) File with FERC: 

(i) Any condition the Forest Service 

adopts as its modified condition; and 

(ii) The Forest Service’s analysis of 

the modified condition and any 

proposed alternative. 

(b) If the Forest Service needs 

additional time to complete the steps set 

forth in paragraphs (a)(1) and (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). 

§ 1.674 How will the Forest Service 

analyze a proposed alternative and 

formulate its modified condition? 

(a) In deciding whether to accept an 

alternative proposed under § 1.671 or 

§ 1.672, the Forest Service must 

consider evidence and supporting 

material provided by any license party 

or otherwise reasonably 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 

§ 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 

§ 1.671 or § 1.672. 

(b) The Forest Service must accept a 

proposed alternative if the Forest 


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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) For purposes of paragraphs (a) and 

(b) of this section, the Forest Service 

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 the Forest Service files with 

FERC the condition that the Forest 

Service adopts as its modified condition 

under § 1.673(a)(2), it must also file: 

(1) A written statement explaining: 

(i) The basis for the adopted 

condition; 

(ii) If the Forest Service is not 

accepting any pending alternative, its 

reasons for not doing so; and 

(iii) If any alternative submitted under 

§ 1.671 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 the Forest Service gave 

equal consideration to the effects of the 

condition 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. 

§ 1.675 Has OMB approved the information 

collection provisions of this subpart? 

Yes. This subpart contains provisions 

in §§ 1.670 through 1.674 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. 

Title 43—Department of the Interior 

■ 3. Part 45 is revised 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 the trial-type 

hearing and alternatives processes? 

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 

DOI 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 Will hearing requests be 

consolidated? 

45.24 Can a hearing process be stayed to 

allow for settlement discussions? 

45.25 How will the bureau respond to any 

hearing requests? 

45.26 What will DOI do with any hearing 

requests? 

45.27 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 Who has the burden of persuasion, 

and what standard of proof applies? 

45.58 When will the hearing record close? 

45.59 What are the requirements for 

posthearing 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 May I file a revised proposed 

alternative? 

45.73 When will DOI file its modified 

condition or prescription? 

45.74 How will DOI analyze a proposed 

alternative and formulate its modified 

condition or prescription? 

45.75 Has OMB approved the information 

collection provisions of this subpart? 

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

Subpart A—General Provisions 

§ 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 provisions that 

DOI may submit to FERC under any 


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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 Commerce 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 § 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 § 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) Reserved authority. Where DOI 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 DOI 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 DOI’s reserved authority 

under paragraph (c) of this section with 

respect to a hydropower license issued 

before or after November 17, 2005. 

§ 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, 301 South 

West Temple Street, Suite 6.300, Salt 

Lake City, UT 84101, telephone 801– 

524–5344, facsimile number 801–524– 

5539. 

Intervention means a process by 

which a person who did not request a 

hearing under § 45.21 can participate as 

a party to the hearing under § 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 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 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 2462, 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 § 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 § 45.23; 

(3) Any bureau whose preliminary 

condition or prescription has been filed 

with FERC; and 

(4) Any other Department that has 

filed a preliminary condition or 

prescription, with respect to a hearing 

process consolidated under § 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 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 

§ 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. 


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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. 

§ 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 § 45.21, a 

notice of intervention and response 

under § 45.22, an answer under § 45.25, 

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 § 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 § 45.60. 

§ 45.4 What deadlines apply to the trialtype 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. 

Process step Process day Must generally be completed See section 

(1) DOI files preliminary condition(s) or prescription(s) 

with FERC.

0 ....................................................................................... 45.20. 

(2) License party files request for hearing .................... 30 Within 30 days after DOI files preliminary condition(s) 

or prescription(s) with FERC.

45.21(a). 

(3) Any other license party files notice of intervention 

and response.

50 Within 20 days after deadline for filing requests for 

hearing.

45.22(a). 

(4) Bureau may file answer ........................................... 80 Within 50 days after deadline for filing requests for 

hearing.

45.25(a). 

(5) OEPC refers case to ALJ office for hearing and 

issues referral notice to parties.

85 Within 55 days after deadline for filing requests for 

hearing.

45.26(a). 

(6) Parties may meet and agree to discovery (optional 

step).

86–91 Before deadline for filing motions seeking discovery ... 45.41(a). 

(7) ALJ office sends docketing notice, and ALJ issues 

notice setting date for initial prehearing conference.

90 Within 5 days after effective date of referral notice ..... 45.30. 

(8) Party files motion seeking discovery from another 

party.

92 Within 7 days after effective date of referral notice ..... 45.41(d). 

(9) Other party files objections to discovery motion or 

specific portions of discovery requests.

99 Within 7 days after service of discovery motion .......... 45.41(e). 

(10) Parties meet to discuss discovery and hearing 

schedule.

100–104 Before date set for initial prehearing conference ......... 45.40(d). 

(11) ALJ conducts initial prehearing conference .......... 105 On or about 20th day after effective date of referral 

notice.

45.40(a). 

(12) ALJ issues order following initial prehearing conference.107 Within 2 days after initial prehearing conference ......... 45.40(g). 

(13) Party responds to interrogatories from another 

party as authorized by ALJ.

120–22 Within 15 days after ALJ’s order authorizing discovery 

during or following initial prehearing conference.

45.43(c). 

(14) Party responds to requests for documents, etc., 

from another party as authorized by ALJ.

120–22 Within 15 days after ALJ’s order authorizing discovery 

during or following initial prehearing conference.

45.45(c). 

(15) Parties complete all discovery, including depositions, as authorized by ALJ.130 Within 25 days after initial prehearing conference ....... 45.41(i). 

(16) Parties file updated lists of witnesses and exhibits 140 Within 10 days after deadline for completion of discovery.45.42(b). 

(17) Parties file written direct testimony ........................ 140 Within 10 days after deadline for completion of discovery.45.52(a). 

(18) Parties complete prehearing preparation and ALJ 

commences hearing.

155 Within 25 days after deadline for completion of discovery.45.50(a). 

(19) ALJ closes hearing record ..................................... 160 When ALJ closes hearing ............................................ 45.58. 

(20) Parties file post-hearing briefs ............................... 175 Within 15 days after hearing closes ............................. 45.59(a). 

(21) ALJ issues decision ............................................... 190 Within 30 days after hearing closes ............................. 45.60(a). 

(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. 


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Process step Process day Must generally be completed See section 

(1) DOI files preliminary condition(s) or prescription(s) 

with FERC.

0 ....................................................................................... 45.20. 

(2) License party files alternative condition(s) or prescription(s).30 Within 30 days after DOI files preliminary condition(s) 

or prescription(s) with FERC.

45.71(a). 

(3) ALJ issues decision on any hearing request .......... 190 Within 30 days after hearing closes (see previous 

table).

45.60(a). 

(4) License party files revised alternative condition(s) 

or prescription(s) if authorized.

210 Within 20 days after ALJ issues decision .................... 45.72(a). 

(5) DOI files modified condition(s) or prescription(s) 

with FERC.

300 Within 60 days after the deadline for filing comments 

on FERC’s draft NEPA document.

45.73(a). 

Subpart B—Hearing Process 

Representatives 

§ 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 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 

§ 45.11; 

(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 § 45.13. 

(e) Disqualification. The ALJ may 

disqualify any representative for 

misconduct or other good cause. 

Document Filing and Service 

§ 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 81⁄2 by 11 inches, except 

that a table, chart, diagram, or other 

attachment may be larger if folded to 

81⁄2 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). 

§ 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 § 45.26, any documents 

must be filed with OEPC. OEPC’s 

address, telephone number, and 

facsimile number are set forth in § 45.2. 

(2) OEPC will notify the parties of the 

date on which it refers a case for 

docketing under § 45.26. 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 

§ 45.2; 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 

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 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 


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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. 

§ 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 § 45.21 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 § 45.22 

must be: 

(i) Delivered or sent to FERC, the 

license applicant, any person who has 

filed a request for hearing under § 45.21, 

and any bureau, 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 § 45.25 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 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. 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. 

Initiation of Hearing Process 

§ 45.20 What supporting information must 

DOI provide with its preliminary conditions 

or prescriptions? 

(a) Supporting information. (1) When 

DOI files a preliminary condition or 

prescription with FERC, it must include 

a rationale for the condition or 

prescription and an index to the 

administrative record that identifies all 

documents relied upon. 

(2) If any of the documents relied 

upon are not already in the license 

proceeding record, DOI 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 

Indian tribe. 

(b) Service. DOI will serve a copy of 

its preliminary condition or prescription 

on each license party. 

§ 45.21 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 DOI, you must: 

(1) Be a license party; and 

(2) File with OEPC, at the address 

provided in§ 45.2, a written request for 

a hearing: 

(i) For a case under § 45.1(d)(1), 

within 30 days after DOI files a 

preliminary condition or prescription 

with FERC; or 

(ii) For a case under § 45.1(d)(2), 

within 60 days after DOI 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 DOI under 

§ 45.20(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 § 45.13(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 


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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. 

§ 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, at the address 

provided in§ 45.2, a notice of 

intervention and a written response to 

any request for a hearing within 20 days 

after the deadline in § 45.21(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 § 45.21(b). 

(1) If you agree with the information 

provided by DOI under § 45.20(a) or by 

the requester under § 45.21(b), your 

response may refer to DOI’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 § 45.21(b). 

(3) Your notice of intervention and 

response must also indicate whether or 

not you consent to service by electronic 

means under § 45.13(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. 

§ 45.23 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 and 

determine: 

(1) Whether a preliminary condition 

or prescription relating to the license 

has been filed with FERC on behalf of 

any other bureau or Department; 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. Where 

more than one bureau or Department 

has received a hearing request, the 

bureaus or Departments involved must 

decide jointly: 

(1) Whether the cases should be 

consolidated for hearing under 

paragraphs (c)(3)(ii) through (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 

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. 

§ 45.24 Can a hearing process be stayed 

to allow for settlement discussions? 

(a) Prior to referral to the ALJ, the 

hearing requester and the Department 

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 § 45.22(a)(1)(ii). 

§ 45.25 How will the bureau respond to 

any hearing requests? 

(a) General. Within 50 days after the 

deadline in § 45.21(a)(2) or 30 days after 

the expiration of any stay period under 

§ 45.24, whichever is later, the bureau 

may file with OEPC an answer to any 

hearing request under § 45.21. 

(b) Content. If the bureau files an 

answer: 

(1) For each of the numbered factual 

issues listed under § 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 § 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. 

(3) If the bureau 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 the bureau consents to 

service by electronic means under 

§ 45.13(c)(4) and, if so, by what means. 

(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. 


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(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 

§ 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 § 45.23, and the statement 

required by paragraph (b)(4) of this 

section. 

§ 45.26 What will DOI do with any hearing 

requests? 

(a) Case referral. Within 55 days after 

the deadline in § 45.21(a)(2) or 35 days 

after the expiration of any stay period 

under § 45.24, whichever is later, 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) Two copies of any preliminary 

condition or prescription under § 45.20; 

(2) The original and one copy of any 

hearing request under § 45.21; 

(3) The original and one copy of any 

notice of intervention and response 

under § 45.22; 

(4) The original and one copy of any 

answer under § 45.25; and 

(5) The original and one copy of a 

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 effective date of the case 

referral to the appropriate Department 

hearings component. 

(d) Delivery and service. (1) OEPC 

must refer the case to the appropriate 

Department hearings component by one 

of the methods identified in 

§ 45.12(b)(1)(i) and (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 § 45.13(c)(1) and (2). 

§ 45.27 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 

§ 45.30 What will the Hearings Division do 

with a case referral? 

Within 5 days after the effective date 

stated in the referral notice under 

§ 45.26(c)(4), 7 CFR 1.626(c)(4), or 50 

CFR 221.26(c)(4): 

(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 § 45.40. This notice 

may be combined with the docketing 

notice under paragraph (a)(3) of this 

section. 

§ 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 relating to any bureau’s or 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 § 45.47; 

(c) Shorten or enlarge time periods set 

forth in these regulations, except that 

the deadline in § 45.60(a)(2) can be 

extended only if the ALJ must be 

replaced under § 45.32 or 45.33; 

(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 

§ 45.60(b) regarding any disputed issue 

of material fact; and 

(l) Take any other action authorized 

by law. 

§ 45.32 What happens if the ALJ becomes 

unavailable? 

(a) If the ALJ becomes unavailable or 

otherwise unable to perform the duties 

described in § 45.31, the Hearings 

Division 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. 

§ 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. 


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§ 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. 

§ 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 

§ 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 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. 

Prehearing Conferences and Discovery 

§ 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 notice under § 45.30, on 

or about the 20th day after the effective 

date stated in the referral notice under 

§ 45.26(c)(4), 7 CFR 1.626(c)(4), or 50 

CFR 221.26(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 § 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 deadlines for submission of 

written testimony under § 45.52 and 

exchange of exhibits to be offered as 

evidence under § 45.54; 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. 

§ 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 as provided 

in § 45.43; 

(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 § 45.40(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; 


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(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 § 45.26(c)(4), 7 CFR 

1.626(c)(4), or 50 CFR 221.26(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 (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 nonexpert 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. 

§ 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 

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 § 45.21(c), 

§ 45.22(c), or § 45.25(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 § 45.21(c), § 45.22(c), or 

§ 45.25(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 § 45.21(c), 

§ 45.22(c), or § 45.25(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. 

§ 45.43 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 

§ 45.41(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 § 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 


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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. 

§ 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 § 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. The ALJ will issue an 

order under § 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 crossexamination. 

(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 § 45.53. 

§ 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 § 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. The ALJ will issue an 

order under § 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. 

§ 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 § 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. 

§ 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 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 


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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 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 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. 

Hearing, Briefing, and Decision 

§ 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 

§ 45.40, 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. 

§ 45.51 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 

§§ 45.21(c), 45.22(c), 45.25(c), 45.42(b), 

and 45.52; 

(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. 

§ 45.52 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 crossexamination 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 § 45.47 directing a witness to 

testify by telephonic conference call. 

§ 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 § 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. 

§ 45.54 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; 


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(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. 

§ 45.55 What evidence is admissible at the 

hearing? 

(a) General. (1) Subject to the 

provisions of § 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 

must concisely state the grounds. A 

ruling on every objection must appear in 

the record. 

§ 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. 

§ 45.57 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. 

§ 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 

§ 45.56(b). 

§ 45.59 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. 

§ 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 § 45.58; or 

(2) 120 days after the effective date 

stated in the referral notice under 

§ 45.26(c)(4), 7 CFR 1.626(c)(4), or 50 

CFR 221.26(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 


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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. 825l(b). 

Subpart C—Alternatives Process 

§ 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 § 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 delivered or sent to 

each license party and FERC, using: 

(i) One of the methods of service in 

§ 45.13(c); or 

(ii) Regular mail. 

(2) The provisions of § 45.13(d) 

regarding a certificate of service apply to 

service under this subpart. 

§ 45.71 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 OEPC: 

(i) For a case under § 45.1(d)(1), 

within 30 days after DOI files a 

preliminary condition or prescription 

with FERC; or 

(ii) For a case under § 45.1(d)(2), 

within 60 days after DOI 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 DOI’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 DOI; 

(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. 

§ 45.72 May I file a revised proposed 

alternative? 

(a) Within 20 days after issuance of 

the ALJ’s decision under § 45.60, you 

may file with OEPC a revised proposed 

alternative condition or prescription if: 

(1) You previously filed a proposed 

alternative that met the requirements of 

§ 45.71; 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 

§ 45.71(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. 

§ 45.73 When will DOI 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 § 45.71, 

DOI 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 § 45.74 any 

alternative condition or prescription 

proposed under § 45.71 or 45.72; and 

(2) File with FERC: 

(i) Any condition or prescription that 

DOI adopts as its modified condition or 

prescription; and 

(ii) DOI’s analysis of the modified 

condition or prescription and any 

proposed alternative. 

(b) If DOI 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). 

§ 45.74 How will DOI analyze a proposed 

alternative and formulate its modified 

condition or prescription? 

(a) In deciding whether to accept an 

alternative proposed under § 45.71 or 

45.72, DOI must consider evidence and 

supporting material provided by any 

license party or otherwise reasonably 

available to DOI, including: 

(1) Any evidence on the 

implementation costs or operational 

impacts for electricity production of the 

proposed alternative; 

(2) Any comments received on DOI’s 

preliminary condition or prescription; 

(3) Any ALJ decision on disputed 

issues of material fact issued under 

§ 45.60 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 

§ 45.71 or 45.72. 

(b) DOI must accept a proposed 

alternative if it determines, based on 

substantial evidence provided by any 

license party or otherwise reasonably 

available to DOI, that the alternative: 

(1) Will, as compared to DOI’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 DOI’s preliminary 

prescription. 

(c) For purposes of paragraphs (a) and 

(b) of this section, DOI 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 DOI files with FERC the 

condition or prescription that DOI 

adopts as its modified condition or 

prescription under § 45.73(a)(2), it must 

also file: 

(1) A written statement explaining: 

(i) The basis for the adopted condition 

or prescription; 

(ii) If DOI is not accepting any 

pending alternative, its reasons for not 

doing so; and 


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(iii) If any alternative submitted under 

§ 45.71 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 DOI 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. 

§ 45.75 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. 

Department of Commerce 

50 CFR Chapter II 

■ 4. The National Oceanic and 

Atmospheric Administration revises 

part 221, title 50, to read as follows: 

PART 221—CONDITIONS AND 

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 the trial-type 

hearing and alternatives processes? 

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 

NOAA provide with its preliminary 

conditions or prescriptions? 

221.21 How do I request a hearing? 

221.22 How do I file a notice of 

intervention and response? 

221.23 Will hearing requests be 

consolidated? 

221.24 Can a hearing process be stayed to 

allow for settlement discussions? 

221.25 How will NOAA respond to any 

hearing requests? 

221.26 What will the Office of Habitat 

Conservation do with any hearing 

requests? 

221.27 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 Who has the burden of persuasion, 

and what standard of proof applies? 

221.58 When will the hearing record close? 

221.59 What are the requirements for 

posthearing 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 May I file a revised proposed 

alternative? 

221.73 When will NOAA file its modified 

condition or prescription? 

221.74 How will NOAA analyze a proposed 

alternative and formulate its modified 

condition or prescription? 

221.75 Has OMB approved the information 

collection provisions of this subpart? 

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

Subpart A—General Provisions 

§ 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 


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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. 


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(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 trialtype 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. 

Process step Process day Must generally be completed See section 

(1) NOAA files preliminary condition(s) or prescription(s) 

with FERC.

0 ......................................................................................... 221.20. 

(2) License party files request for hearing ....................... 30 Within 30 days after NOAA files preliminary condition(s) or prescription(s) with FERC.221.21(a). 

(3) Any other license party files notice of intervention 

and response.

50 Within 20 days after deadline for filing requests for 

hearing.

221.22(a). 

(4) NOAA may file answer ............................................... 80 Within 50 days after deadline for filing requests for

hearing.

221.25(a). 

(5) Office of Habitat Conservation refers case to ALJ office for hearing and issues referral notice to parties.85 Within 55 days after deadline for filing requests for 

hearing.

221.26(a). 

(6) Parties may meet and agree to discovery (optional 

step).

86–91 Before deadline for filing motions seeking discovery .... 221.41(a). 

(7) ALJ office sends docketing notice, and ALJ issues 

notice setting date for initial prehearing conference.

90 Within 5 days after effective date of referral notice ....... 221.30. 

(8) Party files motion seeking discovery from another 

party.

92 Within 7 days after effective date of referral notice ....... 221.41(d). 

(9) Other party files objections to discovery motion or 

specific portions of discovery requests.

99 Within 7 days after service of discovery motion ............ 221.41(e). 

(10) Parties meet to discuss discovery and hearing 

schedule.

100–104 Before date set for initial prehearing conference ........... 221.40(d). 

(11) ALJ conducts initial prehearing conference ............. 105 On or about 20th day after effective date of referral notice.221.40(a). 

(12) ALJ issues order following initial prehearing conference.107 Within 2 days after initial prehearing conference .......... 221.40(g). 

(13) Party responds to interrogatories from another 

party as authorized by ALJ.

120–22 Within 15 days after ALJ’s order authorizing discovery 

during or following initial prehearing conference.

221.43(c). 

(14) Party responds to requests for documents, etc., 

from another party as authorized by ALJ.

120–22 Within 15 days after ALJ’s order authorizing discovery 

during or following initial prehearing conference.

221.45(c). 

(15) Parties complete all discovery, including depositions, as authorized by ALJ.130 Within 25 days after initial prehearing conference ........ 221.41(i). 

(16) Parties file updated lists of witnesses and exhibits 140 Within 10 days after deadline for completion of discovery.221.42(b). 

(17) Parties file written direct testimony .......................... 140 Within 10 days after deadline for completion of discovery.221.52(a). 

(18) Parties complete prehearing preparation and ALJ 

commences hearing.

155 Within 25 days after deadline for completion of discovery.221.50(a). 

(19) ALJ closes hearing record ....................................... 160 When ALJ closes hearing .............................................. 221.58. 

(20) Parties file post-hearing briefs ................................. 175 Within 15 days after hearing closes ............................... 221.59(a). 

(21) ALJ issues decision .................................................. 190 Within 30 days after hearing closes ............................... 221.60(a). 

(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. 

Process step Process day Must generally be completed See section 

(1) NOAA files preliminary condition(s) or prescription(s) 

with FERC.

0 ......................................................................................... 221.20. 

(2) License party files alternative condition(s) or prescription(s).30 Within 30 days after NOAA files preliminary condition(s) or prescription(s) with FERC.221.71(a). 

(3) ALJ issues decision on any hearing request ............. 190 Within 30 days after hearing closes (see previous 

table).

221.60(a). 


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Process step Process day Must generally be completed See section 

(4) License party files revised alternative condition(s) or 

prescription(s) if authorized.

210 Within 20 days after ALJ issues decision ...................... 221.72(a). 

(5) NOAA files modified condition(s) or prescription(s) 

with FERC.

300 Within 60 days after the deadline for filing comments 

on FERC’s draft NEPA document.

221.73(a). 

Subpart B—Hearing Process 

Representatives 

§ 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. 

Document Filing and Service 

§ 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 81⁄2 by 11 inches, except 

that a table, chart, diagram, or other 

attachment may be larger if folded to 

81⁄2 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 


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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. 

Initiation of Hearing Process 

§ 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 


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§ 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; 


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(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. 

General Provisions Related to Hearings 

§ 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. 


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§ 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. 

Prehearing Conferences and Discovery 

§ 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; 


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(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 nonexpert 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 


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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 crossexamination. 

(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: 


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(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. 

Hearing, Briefing, and Decision 

§ 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 crossexamination 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: 


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(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 


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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. 825l(b). 

Subpart C—Alternatives Process 

§ 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 


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17220 Federal Register / Vol. 80, No. 61 / Tuesday, March 31, 2015 / Rules and Regulations 

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. 

[FR Doc. 2015–06280 Filed 3–30–15; 8:45 am] 

BILLING CODE 3411–15–P; 4310–79–P; 3510–22–P 


asabaliauskas on DSK5VPTVN1PROD with RULES