69804 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / 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. 051103290–5290–01; I.D. 

101105D] 

RINs 0596–AC42; 1094–AA51; 0648–AU01 

Resource Agency Procedures for 

Conditions and Prescriptions in 

Hydropower Licenses 

AGENCIES: Office of the Secretary, 

Agriculture; Office of the Secretary, 

Interior; National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Interim final rules with request 

for comments. 

SUMMARY: As required by the Energy 

Policy Act of 2005 (EPAct), the 

Departments of Agriculture, the Interior, 

and Commerce are jointly establishing 

procedures for a new category of 

expedited trial-type hearings. The 

hearings will resolve disputed issues of 

material fact with respect to conditions 

or prescriptions that one or more of the 

Departments develop for inclusion in a 

hydropower license issued by the 

Federal Energy Regulatory Commission 

(FERC) under the Federal Power Act. 

The three Departments are also 

establishing procedures for the 

consideration of alternative conditions 

and prescriptions submitted by any 

party to a license proceeding, as 

provided in EPAct. 

Three substantively identical rules are 

being promulgated—one for each 

agency—with a common preamble. The 

rules are effective immediately, so that 

interested parties may avail themselves 

of the new hearing right and alternatives 

process created by the EPAct, but the 

Departments are requesting comments 

on ways the rules can be improved. 

DATES: These rules are effective on 

November 17, 2005. 

Comments: You should submit your 

comments by January 17, 2006. 

ADDRESSES: You may submit comments, 

identified by any of the Regulation 

Identifier Numbers (RINs) shown above 

(0596–AC42, 1094–AA51, or 0648– 

AU01), by one of the methods listed 

below. Comments submitted to any one 

of the three Departments will be shared 

with the others, so it is not necessary to 

submit comments to all three 

Departments. 

1. Federal rulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on-line. 

2. E-mail to any one of the following: 

a. Department of Agriculture: 

gsmith08@fs.fed.us; include ‘‘RIN 0596– 

AC42’’ in the subject line of the 

message; 

b. Department of the Interior: 

DOIHydro_Comments@ios.doi.gov; 

include ‘‘RIN 1094–AA51’’ in the 

subject line of the message; or 

c. Department of Commerce: 

NMFS.Hydro@noaa.gov; include ‘‘RIN 

0648–AU01’’ in the subject line of the 

message. 

3. Facsimile to any of the following: 

a. Department of Agriculture: 202– 

205–1604; 

b. Department of the Interior: 202– 

208–4867; or 

c. Department of Commerce: 301– 

713–4305. 

4. Mail or hand delivery to any of the 

following: 

a. Deputy Chief, National Forest 

Systems, c/o WO Lands Staff, 

Department of Agriculture, Mail stop 

1124, 1400 Independence Avenue SW., 

Washington, DC 20250–1124; 

b. Office of Policy Analysis, Office of 

the Secretary, Mail Stop 4426–MIB, 

Department of the Interior, 1849 C 

Street, NW., Washington, DC 20240; or 

c. Chief, Habitat Protection Division, 

Office of Habitat Conservation, National 

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

20910. 

FOR FURTHER INFORMATION CONTACT: Greg 

Smith, Director of Lands, Forest Service, 

U.S. Department of Agriculture, 202– 

205–1769; or Larry Finfer, Office of 

Policy Analysis, Department of the 

Interior, 202–208–5978; or Melanie 

Harris, Office of Habitat Conservation, 

National Marine Fisheries Service, 301– 

713–4300. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Public Comments 

If you wish to comment on these 

interim final rules, you may submit your 

comments by any of the methods listed 

in the ADDRESSES section above. We will 

consider all comments received by the 

deadline stated in the DATES section 

above. Based on the comments received 

and the initial results of 

implementation, we will consider 

promulgation of revised final rule 

within 18 months of the effective date 

of this rule. 

Please make your comments as 

specific as possible and explain the 

reason for any changes you recommend. 

Where possible, your comments should 

reference the specific section or 

paragraph of the rules that you are 

addressing. 

We will make comments available for 

public review during regular business 

hours. To review the comments, you 

may contact any of the individuals 

listed in the FOR FURTHER INFORMATION

CONTACT section above. Individual 

respondents may request that we 

withhold their home address from the 

rulemaking record. We will honor the 

request to the extent allowable by law. 

In some circumstances we may 

withhold from the rulemaking record a 

respondent’s identity, as allowable by 

law. If you wish us to withhold your 

name and/or address, you must state 

this prominently at the beginning of 

your comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

II. Background 

A. Energy Policy Act of 2005 (EPAct). 

The rules that Agriculture, Interior, and 

Commerce are publishing today 

implement section 241 of EPAct, Public 

Law 109–58, which the President signed 

into law on August 8, 2005. EPAct, 

which passed by wide margins in both 

Houses, was the product of years of 

Congressional hearings, amendments, 

and debates. The issues underlying 

section 241 were extensively considered 

by the 109th Congress and several 

previous Congresses. 

Section 241 amends sections 4(e) and 

18 of the Federal Power Act (FPA), 16 

U.S.C. 797(e), 811, to provide that any 

party to a license proceeding is entitled 

to a determination on the record, after 

opportunity for an agency trial-type 

hearing of no more than 90 days, of any 

disputed issues of material fact with 

respect to any agency’s mandatory 

conditions or prescriptions. Section 241 

further mandates that, within 90 days of 

the date of enactment of EPAct, the 

three Departments establish jointly, by 

rule and in consultation with FERC, 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69805 

procedures for the expedited trial-type 

hearing, including the opportunity to 

undertake discovery and cross-examine 

witnesses. 

Section 241 of EPAct also adds a new 

section 33 to the FPA that allows the 

license applicant or any other party to 

the license proceeding to propose an 

alternative condition or prescription. 

The Secretary of the agency involved 

must accept the proposed alternative if 

the Secretary determines, based on 

substantial evidence provided by a party 

to the license proceeding or otherwise 

available to the Secretary, (a) that the 

alternative condition provides for the 

adequate protection and utilization of 

the reservation, or that the alternative 

prescription will be no less protective 

than the fishway initially proposed by 

the Secretary, and (b) that the 

alternative will either cost significantly 

less to implement or result in improved 

operation of the project works for 

electricity production. 

New FPA section 33 further provides 

that, following the consideration of 

alternatives, the Secretary must file with 

FERC a statement explaining his or her 

reasons for accepting or rejecting any 

alternatives and the basis for any 

modified conditions or prescriptions to 

be included in the license. If FERC finds 

that the modified conditions or 

prescriptions would be inconsistent 

with the purposes of the FPA or other 

applicable law, it may refer the matter 

to its Dispute Resolution Service (DRS). 

The DRS is to consult with the Secretary 

and FERC and issue a non-binding 

advisory within 90 days, following 

which the Secretary is to make a final 

written determination on the conditions 

or prescriptions. 

This preamble explains how the 

Departments will comply with EPAct’s 

requirements for trial-type hearings and 

for the receipt and analysis of 

alternative conditions and prescriptions. 

As explained further below, these new 

rights are being made available 

immediately to any license applicant or 

other party to a license proceeding for 

which the license has not already been 

issued as of the effective date of these 

rules. 

B. FERC’s licensing process for 

hydroelectric power projects. On August 

25, 2003, FERC published a final rule 

amending its regulations at 18 CFR part 

5 for licensing hydroelectric power 

projects to establish a new licensing 

process known as the integrated 

licensing process (ILP). 68 FR 51070. 

The amendments were the culmination 

of efforts by FERC, other Federal and 

State agencies, Indian Tribes, licensees, 

and members of the public to develop 

a more efficient and timely licensing 

process, while ensuring that licenses 

provide appropriate resource 

protections required by the FPA and 

other applicable laws. 68 FR 51070. 

Two other processes, the traditional 

licensing process (TLP) and the 

alternative licensing process (ALP), are 

also available; but the ILP is the default 

process and FERC’s permission must be 

obtained to use the TLP or ALP. Id. 

The FPA’s resource protection 

provisions include sections 4(e), 

10(a)(1), 10(j), and 18, 16 U.S.C. 797(e), 

803(a)(1), 803(j), and 811. Section 

10(a)(1) provides that hydropower 

licenses must be best adapted to a 

comprehensive plan for improving or 

developing the affected waterways for 

all beneficial public uses, and must 

include provisions for the protection of 

fish and wildlife and other beneficial 

public uses. Section 10(j) provides that 

Interior and Commerce may make 

recommendations to FERC on 

conditions for the protection, 

mitigation, and enhancement of fish and 

wildlife affected by the project. FERC 

must include those conditions in the 

license unless it finds that they would 

be inconsistent with the purposes and 

requirements of the FPA or other 

applicable law, and that conditions 

selected by FERC will adequately 

protect, mitigate damages to, and 

enhance fish and wildlife. 

Under FPA section 4(e), licenses for 

projects located within Federal 

reservations must include conditions 

mandated by the Department that 

manages the reservation, which in most 

cases is Agriculture or Interior. Section 

4(e) also requires FERC to give 

environmental values, including fish 

and wildlife and recreation, equal 

consideration with hydropower 

development. Under section 18, licenses 

must also include fishways if they are 

prescribed by Interior or Commerce. As 

provided in section 1701(b) of the 

Energy Policy Act of 1992, Public Law 

102–486, ‘‘the items which may 

constitute a ‘fishway’ under section 18 

for the safe and timely upstream and 

downstream passage of fish shall be 

limited to physical structures, facilities, 

or devices necessary to maintain all life 

stages of such fish, and project 

operations and measures related to such 

structures, facilities, or devices which 

are necessary to ensure the effectiveness 

of such structures, facilities, or devices 

for such fish.’’

The ILP is a multi-year process—

involving more than 20 sequential steps, 

most with associated deadlines—that 

constitutes a logical progression of 

information development, exchange, 

and analysis involving FERC, other 

Federal and State agencies, Indian 

Tribes, the license applicant, and 

members of the public. The ILP brings 

together activities that previously were 

conducted over a much longer time 

frame, including consultation, studies, 

dispute resolution, scoping and 

document preparation under the 

National Environmental Policy Act, 42 

U.S.C. 4321 et seq. (NEPA), and water 

quality certification. 

There are two main phases to the 

process: (1) A pre-application phase 

involving activities before the filing 

with FERC of a license application, and 

(2) a post-application phase. The 

process begins with the applicant’s 

filing with FERC a notice of intent (NOI) 

to file an application for an original, 

new, or subsequent license. 18 CFR 5.5. 

The NOI must be filed 5–51⁄2 years 

before the existing license expires. 18 

CFR 5.5(d). Along with the NOI, the 

applicant must file a pre-application 

document providing available 

information on engineering, economics, 

and the existing environment, including 

data or studies relevant to the 

environment and known and potential 

impacts of the proposed project on 

various resources. 18 CFR 5.6. 

Other steps in the pre-application 

phase include FERC’s issuance of a 

scoping document, holding of a scoping 

meeting, and issuance of a process plan 

and schedule. 18 CFR 5.8. During these 

steps, resource issues and the need for 

information and studies are identified, 

and the scoping of issues under NEPA 

is initiated. 18 CFR 5.8. 

Eventually, the applicant files a 

proposed study plan, the plan is 

assessed through meetings and 

comments, and the applicant files a 

revised study plan for FERC’s approval. 

18 CFR 5.11–.13. After FERC’s approval, 

the plan may be subject to a study 

dispute resolution process if disputes 

arise. 18 CFR 5.14. Approximately 1 

year elapses from issuance of the NOI to 

final approval of a study plan. 

Studies are then conducted, reviewed, 

and modified if necessary. 18 CFR 5.13– 

.15. Studies may extend for more than 

one season. After completion of the 

studies, the applicant files a preliminary 

licensing proposal, which is subject to 

comment and additional information 

requests. 18 CFR 5.16. 

At least 2 years before the existing 

license expires, the application must be 

filed with FERC. 18 CFR 5.17(a). Within 

14 days of that filing, FERC must issue 

public notice of the filing and a 

preliminary schedule for expeditious 

processing of the application, including 

dates for the following steps: Filing of 

preliminary conditions and 

prescriptions by the Departments; 

issuance of an environmental 

69806 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

assessment (EA), a draft EA, or a draft 

environmental impact statement (EIS); 

filing of comments on any draft EIS or 

EA; filing of mandatory conditions or 

prescriptions by the agencies in 

response to any draft EIS or EA; and 

issuance of any final EIS or EA. 18 CFR 

5.19(a). 

When FERC determines that the 

application meets various requirements, 

that the approved studies have been 

completed, that any deficiencies in the 

application have been cured, and that 

no other additional information is 

needed, it will issue a notice of 

acceptance and readiness for 

environmental analysis (REA). 18 CFR 

5.22. That notice must include a request 

for preliminary conditions and 

prescriptions from the Departments. 18 

CFR 5.22. 

Comments, protests, 

recommendations, and preliminary 

conditions and prescriptions must be 

filed with FERC within 60 days after the 

REA. 18 CFR 5.23(a). All reply 

comments must be filed within 105 days 

of the REA. 18 CFR 5.23(a). If FERC 

determines that an EIS or a draft and 

final EA will be prepared, FERC will 

issue a draft EIS or EA no later than 180 

days from the deadline for responses to 

the REA. 18 CFR 5.25(a). The draft EIS 

or EA must include, for comment, any 

preliminary conditions or prescriptions. 

18 CFR 5.25(b). 

Comments to the draft EIS or EA must 

be filed within 30 or 60 days after 

issuance of the draft, as specified by 

FERC. 18 CFR 5.25(c). Modified 

mandatory conditions and prescriptions 

must be filed within 60 days after the 

deadline for filing comments, and FERC 

will issue a final EIS or EA within 90 

days after the deadline for filing the 

modified mandatory conditions and 

prescriptions. 18 CFR 5.25(d)–(e). FERC 

will then issue the license order 

including any mandatory conditions 

and prescriptions. 18 CFR 5.29(h). 

C. Authority for mandatory conditions 

and prescriptions under the Federal 

Power Act. Provisions of the FPA, 16 

U.S.C. 791–823c, vest in the 

Departments the authority to provide 

conditions and/or prescriptions to be 

included in licenses issued by FERC for 

hydroelectric generating facilities (see 

also 18 CFR parts 4, 5, and 16). 

Under section 18 of the FPA, 16 

U.S.C. 811, Interior, acting through the 

Fish and Wildlife Service (FWS), and 

Commerce, acting through the National 

Marine Fisheries Service (NMFS) within 

the National Oceanic and Atmospheric 

Administration (NOAA), may prescribe 

fishways to provide for the safe, timely, 

and effective passage of fish. 

Under section 4(e) of the FPA, 16 

U.S.C. 797(e), Agriculture and Interior 

may establish conditions necessary for 

the adequate protection and utilization 

of reservations. The term ‘‘reservations,’’

as used in the FPA, includes certain 

lands and facilities under the 

jurisdiction of the U.S. Forest Service 

within Agriculture, and various 

components of Interior (namely, FWS, 

the National Park Service, the Bureau of 

Land Management, the Bureau of 

Reclamation, or the Bureau of Indian 

Affairs). 

Through these statutory provisions, 

the FPA authorizes the Departments to 

set conditions or prescriptions for the 

protection of public and Tribal 

resources that may be affected when 

navigable waterways or Federal 

reservations are used for hydroelectric 

projects licensed by FERC. 

The Departments’ conditions and 

prescriptions must be incorporated by 

FERC into any hydropower license it 

issues under the FPA. This authority 

has been recognized and upheld by the 

Federal courts, including the Supreme 

Court. See Escondido Mutual Water Co. 

v. La Jolla Band of Mission Indians, 466 

U.S. 765 (1984); American Rivers v. 

FERC, 201 F.3d 1186 (9th Cir. 1999); 

Bangor Hydro-Electric Co. v. FERC, 78 

F.3d 659 (D.C. Cir. 1996). After a license 

has been issued, the license, including 

the Departments’ conditions and 

prescriptions, is subject to rehearing 

before FERC and subsequent judicial 

review under the FPA’s appeal 

procedures. The FPA gives the Federal 

appeals courts exclusive jurisdiction 

over such appeals. 16 U.S.C. 825l(b). 

D. Mandatory Conditions Review 

Process (MCRP). On January 19, 2001, 

Interior and Commerce established, 

through an interagency policy, the 

MCRP. The MCRP provided license 

applicants and interested parties an 

opportunity to review and comment on 

the two Departments’ preliminary 

conditions and prescriptions for specific 

hydropower licenses. In addition, 

commenters were encouraged to provide 

additional information regarding the 

Departments’ conditions and 

prescriptions. The MCRP was crafted to 

work within FERC’s deadlines and its 

process under NEPA, while affording 

interested parties an opportunity to 

comment on the record concerning the 

two Departments’ conditions and 

prescriptions. 

Before finalizing the MCRP, Interior 

and Commerce provided a public 

comment period on a draft MCRP. 65 FR 

77889 (Dec. 13, 2000). Many 

commenters proposed that the 

Departments provide, in addition to 

review and comment, an opportunity for 

an evidentiary hearing or an 

administrative appeal. The Departments 

decided not to adopt such procedures at 

that time. 

After 3 years of experience using the 

MCRP, each of the Departments issued 

proposed rules to codify the MCRP with 

clarifications. 69 FR 54602 (Sept. 9, 

2004) (Interior); 69 FR 54615 (Sept. 9, 

2004) (Commerce). Interior also 

proposed to add a new administrative 

appeals process to follow review and 

comment under the MCRP. Interior 

again considered but decided not to 

adopt an evidentiary hearing process, 

out of concern that there was 

insufficient time in the FERC licensing 

process to accommodate it. 69 FR 

54603. 

Neither Department has yet issued a 

final rule codifying the MCRP. Given 

the new procedures mandated by EPAct, 

which effectively subsume or supersede 

the MCRP, there no longer appears to be 

a need for such a rule or to continue 

implementing the MCRP. 

E. How the trial-type hearing and 

alternatives process will fit into the 

FERC licensing timeframe. As noted in 

the SUMMARY section above, to comply 

with EPAct’s mandate, the Departments 

are promulgating three substantively 

identical rules, one for each 

Department, with this common 

preamble. Like the now superseded 

MCRP, the new hearing process 

established by these rules has been 

carefully crafted to work within FERC’s 

time frame and NEPA process, while 

affording interested parties an 

opportunity to present evidence on 

disputed issues of material fact with 

respect to the Departments’ conditions 

and prescriptions. 

Key steps in FERC’s time frame, as 

related to our hearings and alternatives 

processes, are as follows. This assumes 

that, in a contested case, FERC will 

issue either a draft EA or a draft EIS 

under 18 CFR 5.25, rather than an EA 

not preceded by a draft under 18 CFR 

5.24. 

1. FERC issues its REA notice. 

2. Responses to the REA, including 

the Departments’ preliminary 

conditions and prescriptions, are due 60 

days later. 

3. FERC issues its draft NEPA 

document (EA or EIS) within 180 days 

after the deadline for responses to the 

REA. 

4. Comments on the draft NEPA 

document are due 30–60 days later. 

5. The Departments’ modified 

conditions and prescriptions are due 60 

days after the deadline for comments on 

the draft NEPA document. 

6. FERC issues a final NEPA 

document within 90 days after the 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69807 

deadline for the modified conditions 

and prescriptions. 

7. FERC issues the license order with 

any conditions and prescriptions. 

Under these rules on trial-type 

hearings and alternative conditions and 

prescriptions, the following actions will 

occur within the steps listed above for 

FERC’s licensing process. The hearing 

and alternatives processes are separate 

and distinct, but they have a few 

common points of reference, as noted 

below. 

1. FERC issues its REA notice, starting 

the 60-day period for responses. 

2. By the end of the 60-day period, the 

Departments will submit any 

preliminary conditions and 

prescriptions they have developed. 

2a. The parties will have 30 days to 

request a hearing on any disputed issues 

of material fact. The parties will have 

the same 30 days to submit alternative 

conditions and prescriptions. 

2b. The parties will have 15 days after 

hearing requests are due to file a notice 

of intervention and response with 

regard to any other party’s hearing 

request. 

2c. The Departments will have 30 

days after responses are due to 

determine whether to stipulate to some 

or all of the facts alleged to be in dispute 

and to file an answer to the hearing 

request. During the same period, the 

Departments will consider whether any 

proposed alternative condition or 

prescription could preclude the need for 

a hearing. 

2d. If there is still a need for a 

hearing, the Departments will refer the 

case to an administrative law judge 

(ALJ). 

2e. Within 90 days, the ALJ will 

conduct the hearing process on any 

disputed issues of material fact. The 

process will include an initial 

prehearing conference, discovery, an 

evidentiary hearing for the parties to 

present their evidence and crossexamine witnesses, the submission of 

post-hearing briefs, and issuance of a 

final decision. 

3. FERC will issue its draft NEPA 

document, which will include for 

comment the Departments’ preliminary 

conditions and prescriptions and any 

alternatives proposed by the parties. 

4. The parties and the Departments 

will submit their comments on the draft 

NEPA document, using the facts as 

found by the ALJ. 

4a. The Departments will consider 

and analyze comments received on their 

preliminary conditions and 

prescriptions, the ALJ’s decision on 

disputed issues of material fact, 

comments received on the draft NEPA 

document, and any alternative 

conditions and prescriptions. 

5. The Departments will issue their 

modified conditions and prescriptions 

and file their analysis of the alternatives 

within 60 days of the close of the 

comment period on FERC’s draft NEPA 

document. 

5a. FERC will evaluate the modified 

conditions and prescriptions in light of 

the purposes of the FPA and other 

applicable law. If it finds they are 

inconsistent, FERC may refer the matter 

to the DRS. 

5b. The DRS will consult with the 

Departments and FERC and issue a nonbinding advisory within 90 days. 

5c. The Departments will consider the 

DRS advisory and issue a final written 

determination on the conditions and 

prescriptions. 

6. FERC will issue its final NEPA 

document. 

7. FERC will issue the license order 

with any mandatory conditions and 

prescriptions. 

This approach has several benefits for 

the parties, FERC, and the Departments. 

It provides for the submission of 

alternative conditions and prescriptions 

in time for FERC to include them in its 

draft NEPA document and for the 

Departments to consider them along 

with any hearing requests and responses 

from other parties. This will enable each 

Department to consider at an early stage 

whether it wants to accept a proposed 

alternative and possibly avoid the need 

for a hearing under these rules. Having 

the hearing requests, responses, and 

alternatives together will also assist the 

Departments in deciding whether to 

stipulate to some facts alleged to be in 

dispute or otherwise try to narrow the 

issues to be heard. 

Moreover, since the hearing process 

will be completed by the time FERC 

issues its draft NEPA document, the 

parties will have the benefit of the ALJ’s 

decision in preparing their comments 

on that document. The Departments will 

likewise have the ALJ’s decision to use 

in analyzing the alternatives and 

developing their modified conditions 

and prescriptions within FERC’s time 

frame. 

In many cases, this sequence and 

timing will need to be adjusted with 

respect to any license application that is 

currently pending before FERC, if the 

license applicant or another party wants 

a trial-type hearing or wants to submit 

an alternative condition or prescription. 

A number of pending applications are 

already past the early steps listed above. 

In such cases, the Departments will 

work with FERC and the parties to fit 

the hearing and alternatives processes 

into the remaining steps. 

F. Overview of the hearing process. As 

noted previously, section 241 of EPAct 

provides that ‘‘[t]he license applicant 

and any party to the proceeding shall be 

entitled to a determination on the 

record, after opportunity for an agency 

trial-type hearing of no more than 90 

days, on any disputed issues of material 

fact’’ with respect to any Department’s 

conditions or prescriptions. ‘‘All 

disputed issues of material fact raised 

by any party shall be determined in a 

single trial-type hearing to be conducted 

by the relevant resource agency * * *.’’

The three Departments are required to 

‘‘establish jointly, by rule, the 

procedures for such expedited trial-type 

hearing, including the opportunity to 

undertake discovery and cross-examine 

witnesses * * *.’’

In the Departments’ experience, full 

administrative adjudications involving 

prehearing conferences, discovery, 

motions, one or more evidentiary 

hearings, briefing, and a decision often 

take over a year to complete, especially 

if the case involves multiple parties and 

complex technical issues. Shortening 

this process to 90 days will be a 

significant challenge for the parties and 

the ALJ, and will require adherence to 

fairly stringent procedural limits and 

deadlines. 

Under these rules, the 90-day period 

for the hearing process will commence 

when the case is referred to an ALJ for 

a hearing, and will end when the ALJ 

issues his or her decision. During that 

period, at least one prehearing 

conference will be held; discovery will 

be conducted as approved by the ALJ or 

agreed to by the parties; evidence, 

including direct written testimony and 

oral cross-examination, will be 

presented at a hearing; post-hearing 

briefs will be filed; and a decision will 

be issued by the ALJ. 

As described in section II.E. above, 

before the case is referred for a hearing, 

each Department will have filed with 

FERC its preliminary conditions or 

prescriptions, with supporting rationale 

and an index to the administrative 

record of supporting documents. Any 

party to the FERC license proceeding 

may then file with the appropriate 

Department a request for hearing, 

identifying the material facts that are 

disputed regarding the preliminary 

conditions or prescriptions. Other 

parties to the license proceeding may 

then submit responses to any hearing 

request and intervene in the hearing 

process. 

The Department involved will review 

the parties’ submissions to determine 

whether to stipulate to any facts as 

stated by the parties, object that any 

issue raised by a party either is not 

69808 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

factual (i.e., is a legal conclusion or a 

policy determination) or is not material, 

or agree that the issues raised are 

factual, material, and disputed. Unless 

all disputed issues have been resolved, 

the Department will refer the case to an 

ALJ for a hearing. 

If two or more Departments file 

preliminary conditions and/or 

prescriptions and receive hearing 

requests, they will consult with each 

other to determine whether the requests 

should be consolidated for hearing. In 

accordance with EPAct, a single hearing 

will be held for all conditions issued by 

one Department (section 241(a)) or for 

all prescriptions issued by one 

Department (section 241(b)). While 

EPAct does not mandate the 

consolidation of hearing requests in 

other circumstances, the Departments 

expect to consolidate the cases if there 

are common issues of fact. In that event, 

one ALJ would be designated to conduct 

the consolidated hearing on behalf of 

the Departments involved. 

G. Overview of the alternatives 

process. While the specific alternatives 

process added by section 241 of EPAct 

is new, for years the Departments have 

received and considered alternatives 

from license parties on an informal 

basis, and have revised preliminary 

conditions and prescriptions as new 

information was received. Under the 

new process, whether or not a license 

party requests a hearing, it may submit 

one or more conditions or prescriptions 

for consideration by the appropriate 

Department as an alternative to any 

preliminary conditions or prescription 

that the Department has filed. The 

alternatives are due 30 days after the 

deadline for the Departments to file 

their preliminary conditions and 

prescriptions, which will allow FERC to 

include the alternatives in its draft 

NEPA document. 

If any party has requested a hearing 

on disputed issues of material fact with 

respect to a preliminary condition or 

prescription, the ALJ’s decision will 

generally be issued shortly before FERC 

issues its draft NEPA document. The 

Departments will use the comment 

period on the draft NEPA document to 

review their preliminary conditions and 

prescriptions in light of the findings of 

fact from the ALJ. 

Within 60 days of the end of the 

comment period on FERC’s draft NEPA 

document, each Department will 

formally analyze the alternative 

conditions and/or prescriptions it has 

received, together with the ALJ’s 

findings of fact, comments received on 

the preliminary conditions and 

prescriptions, and comments received 

on FERC’s draft NEPA document. The 

Department will then issue its modified 

conditions or prescriptions and file the 

written statement required by FPA 

section 33(a)(4) or (b)(4). 

The written statement must explain 

the basis for the modified conditions or 

prescriptions and, if the Department did 

not accept an alternative condition or 

prescription, its reasons for not doing 

so. As provided in section 33, the 

statement must demonstrate that the 

Department gave equal consideration to 

the effects of its modified conditions or 

prescriptions and any alternatives not 

accepted ‘‘on energy supply, 

distribution, cost, and use; flood 

control; navigation; water supply; and 

air quality (in addition to the 

preservation of other aspects of 

environmental quality) * * *.’’

The requirement for ‘‘equal 

consideration’’ has been construed 

under FPA section 4(e) to mean that 

each factor must be considered equally 

with the others, i.e., given ‘‘ ‘full and 

genuine consideration * * *’ ’’ State of 

California v. FERC, 966 F.2d 1541, 1550 

(9th Cir. 1992), quoting from legislative 

history at 123 Cong. Rec. S. 15107. 

‘‘Equal consideration’’ is not the same as 

‘‘equal treatment’’; rather the agency 

‘‘must balance the public interest in all 

of its stated dimensions, give equal 

consideration to conflicting interests, 

and reach a reasoned factual decision.’’

Id.; accord Conservation Law Found. v. 

FERC, 216 F.3d 41 (D.C. Cir. 2000); see 

also U.S. Dept. of Interior v. FERC, 952 

F.2d 538 (D.C. Cir. 1992). 

III. Section-by-Section Analysis 

There are three different versions of 

the regulations that follow for the trialtype hearing and alternatives process, 

one version each for Agriculture, 

Interior, and Commerce. The structure 

and content of the regulations are the 

same, but there are minor variations to 

account for differences in the names of 

the Departments and their 

organizational components. The three 

versions also vary somewhat in their 

references to conditions and 

prescriptions, since Agriculture does 

not develop prescriptions under FPA 

section 18 and Commerce does not 

develop conditions under FPA section 

4(e), while Interior may do either or 

both. 

For each section discussed below, the 

CFR title, section number, and heading 

for each Department are shown, 7 CFR 

for Agriculture, 43 CFR for Interior, and 

50 CFR for Commerce. 

General Provisions 

7 CFR 1.601 What is the purpose of 

this subpart, and to what license 

proceedings does it apply? 

43 CFR 45.1 What is the purpose of 

this part, and to what license 

proceedings does it apply? 

50 CFR 221.1 What is the purpose of 

this part, and to what license 

proceedings does it apply? 

Paragraph (a) of this section explains 

the basic purpose of the trial-type 

hearing regulations. It further explains 

that, if two or more Departments 

consolidate hearing requests involving 

the same license application, the 

regulations of one Department may 

govern the steps preceding the referral 

of the case to an ALJ, while the 

(substantively identical) regulations of 

another Department may govern the 

steps following the referral of the case 

to an ALJ. Paragraph (b) explains the 

basic purpose of the alternative process 

regulations. 

Paragraph (c) covers situations in 

which a Department does not exercise 

its authority to submit conditions or 

prescriptions for inclusion in the 

license, but reserves the authority to do 

so during the term of the license, e.g., 

if conditions change or the Department 

obtains additional information. If the 

Department notifies FERC that it is 

reserving its authority, the hearing and 

alternatives processes under these rules 

will be available to the license parties if 

and when the Department subsequently 

exercises its reserved authority. The 

license parties cannot request a hearing 

regarding the reservation of authority 

itself, or submit alternatives to such 

reservation. 

Paragraph (d) provides that these 

regulations apply to any hydropower 

license proceeding for which the license 

has not been issued as of the effective 

date of these rules and for which the 

Department involved has developed or 

develops one or more preliminary 

conditions, conditions, preliminary 

prescriptions, or prescriptions. A cross 

reference to 7 CFR 1.604, 43 CFR 45.4, 

or 50 CFR 221.4 is included for license 

applications that are pending as of the 

effective date of these rules. 

7 CFR 1.602 What terms are used in 

this subpart? 

43 CFR 45.2 What terms are used in 

this part? 

50 CFR 221.2 What terms are used 

in this part? 

This section defines the meaning of 

various terms used in the regulations. 

Most of the definitions provided are 

self-explanatory, but a few deserve 

further discussion. 

‘‘Intervention’’ is defined as a process 

by which a person who did not request 

a hearing under 7 CFR 1.621, 43 CFR 

45.21, or 50 CFR 221.21 can participate 

as a party in the hearing by filing a 

notice of intervention and response 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69809 

under 7 CFR 1.622, 43 CFR 45.22, or 50 

CFR 221.22. A person who has 

intervened in the license proceeding 

before FERC is not automatically an 

intervenor in the hearing process under 

these regulations; but anyone who has 

intervened in the license proceeding is 

eligible to intervene in the hearing 

process. 

‘‘Material fact’’ is defined as ‘‘a fact 

that, if proved, may affect a 

Department’s decision whether to 

affirm, modify, or withdraw any 

preliminary condition or prescription.’’

To use a fishway prescription as an 

example, issues of material fact could 

include but are not limited to issues 

such as whether the river has 

historically been a cold or warm water 

fishery or whether fish have historically 

been found above or below the dam. 

Such issues, if disputed and material to 

the prescription involved in a given 

case, appear well suited to the trial-type 

hearing mandated by EPAct. On the 

other hand, legal or policy issues would 

not qualify as issues of material fact. 

‘‘Party’’ is defined to mean a party to 

the hearing process under these 

regulations, as distinguished from a 

‘‘license party,’’ which is a party to the 

FERC license proceeding. A ‘‘party’’

includes a license party that requests a 

hearing under section 7 CFR 1.621, 43 

CFR 45.21, or 50 CFR 221.21, a license 

party that files a notice of intervention 

and response under section 7 CFR 

1.622, 43 CFR 45.22, or 50 CFR 221.22, 

and the Departmental component that 

has filed a preliminary condition or 

prescription in the license proceeding. If 

two or more hearing requests are 

consolidated under 7 CFR 1.623, 43 CFR 

45.23, and 50 CFR 221.23, the term 

‘‘party’’ will also include any other 

Departmental component involved in 

the hearing. 

7 CFR 1.603 How are time periods 

computed? 

43 CFR 45.3 How are time periods 

computed? 

50 CFR 221.3 How are time periods 

computed? 

Paragraph (a) of this section describes 

the method for computing time periods 

under the regulations. Paragraph (b) 

covers requests for extensions of time. It 

provides that no extension of time can 

be granted to file a request for a hearing 

under section 7 CFR 1.621, 43 CFR 

45.21, or 50 CFR 221.21; a notice of 

intervention and response under section 

7 CFR 1.622, 43 CFR 45.22, or 50 CFR 

221.22; an answer under section 7 CFR 

1.624, 43 CFR 45.24, or 50 CFR 221.24; 

or any document under the alternatives 

process. This limitation is necessary to 

ensure timely completion of the hearing 

and alternatives processes and because, 

as a practical matter, there will be no 

ALJ available who could rule on a 

motion for extension of time for these 

documents. Extensions of time to file 

other documents under the hearing 

process may be granted by the ALJ, but 

only for good cause. 

7 CFR 1.604 What deadlines apply 

to pending applications? 

43 CFR 45.4 What deadlines apply 

to pending applications? 

50 CFR 221.4 What deadlines apply 

to pending applications? 

This section contains special 

applicability provisions for cases in 

which preliminary conditions, 

conditions, preliminary prescriptions, 

or prescriptions have already been filed 

as of the effective date of these rules, but 

the license has not been issued. 

Normally, parties will have 30 days 

from the Departments’ filing of 

preliminary conditions and 

prescriptions to request a hearing or 

submit alternatives. 7 CFR 1.621, 1.671; 

43 CFR 45.21, 45.71; 50 CFR 221.21, 

221.71. But in cases currently pending 

before FERC, the Departments may have 

already filed their preliminary 

conditions, conditions, preliminary 

prescriptions, or prescriptions by the 

effective date of these rules. 

Under this section, hearing requests 

and alternatives in such cases will be 

due 30 days after the effective date of 

these rules. Any notice of intervention 

and response will be due 15 days 

thereafter, consistent with 7 CFR 1.622, 

43 CFR 45.22, and 50 CFR 221.22. 

Within the next 75 days, the 

Departments will consult with each 

other to determine whether to 

consolidate any hearing requests they 

may have received, and with FERC to 

determine a time frame for each hearing 

process. Depending on how far along 

each license proceeding has progressed, 

FERC may need to suspend or extend 

the remaining steps to accommodate the 

hearing process and alternatives 

analysis required by EPAct. 

If, within the first 30 days after the 

effective date of these rules, hearing 

requests are filed in a number of cases 

with pending applications, it may not be 

possible for the Departments and their 

ALJ offices to handle them all 

simultaneously. Thus, the time frames 

worked out with FERC may provide for 

a staggering of the requested hearing 

processes, with priority being given to 

cases where the applications are closest 

to issuance. In that case, the 

Departments will not necessarily file 

answers on all hearing requests 

simultaneously. They will, however, 

issue notices to the parties in each case 

informing them of the time frame for the 

hearing process and the deadline for the 

answer. Once the answer is filed in any 

case, the rest of the hearing process will 

follow the normal schedule set out in 

these rules. 

If no hearing request is received but 

alternatives are proposed within 30 days 

of the effective date of these rules, the 

Departments will consult with each 

other to determine whether they have 

related conditions or prescriptions and 

alternatives that should be considered at 

the same time, and they will consult 

with FERC to determine a time frame for 

the alternatives process. They will then 

issue notices to the license parties, 

informing them of the time frame for the 

Departments’ filing of modified 

conditions and prescriptions under 7 

CFR 1.672(b), 43 CFR 45.72(b), and 50 

CFR 221.72(b). 

Hearing Process 

Representatives 

7 CFR 1.610 Who may represent a 

party, and what requirements apply to 

a representative? 

43 CFR 45.10 Who may represent a 

party, and what requirements apply to 

a representative? 

50 CFR 221.10 Who may represent a 

party, and what requirements apply to 

a representative? 

This section identifies who may 

represent an individual, partnership, 

corporation, governmental unit, or other 

entity. It also provides that each 

representative must file a notice of 

appearance and may be disqualified by 

the ALJ for misconduct or other good 

cause. 

Document Filing and Service 

7 CFR 1.611 What are the form and 

content requirements for documents 

under §§ 6.610 through 1.660? 

43 CFR 45.11 What are the form and 

content requirements for documents 

under this subpart? 

50 CFR 221.11 What are the form 

and content requirements for 

documents under this subpart? 

This section specifies the format, 

caption, signature, and contact 

information requirements for documents 

filed under the hearing process. These 

requirements apply to documents 

prepared as part of the hearing process, 

such as a hearing request, notice of 

intervention and response, answer, 

motion, reply, discovery request, 

discovery response, written testimony, 

or brief. They do not apply to 

supporting materials prepared 

separately, such as studies, reports, 

articles, etc., that the parties may submit 

as attachments to their hearing process 

documents. 

7 CFR 1.612 Where and how must 

documents be filed? 

69810 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

43 CFR 45.12 Where and how must 

documents be filed? 

50 CFR 221.12 Where and how must 

documents be filed? 

This section establishes requirements 

for the filing of documents. Each 

Department has designated an office 

where documents must be filed before a 

case has been referred for docketing and 

assignment to an ALJ. After the referral, 

documents are to be filed with the 

appropriate ALJ’s office. Documents 

may be filed by hand delivery, overnight 

delivery, or fax and are considered filed 

when received. 

7 CFR 1.613 What are the 

requirements for service of documents? 

43 CFR 45.13 What are the 

requirements for service of documents? 

50 CFR 221.13 What are the 

requirements for service of documents? 

This section provides that any request 

for a hearing and any notice of 

intervention and response must be 

served on FERC and all parties to the 

FERC license proceeding. All other filed 

documents and all documents issued by 

the ALJ must be served on the parties to 

the hearing. Service generally may be 

made by hand delivery, overnight 

delivery, fax, or e-mail. A certificate of 

service is required. 

Initiation of Hearing Process 

7 CFR 1.620 What supporting 

information must the Forest Service 

provide with its preliminary conditions? 

43 CFR 45.20 What supporting 

information must a bureau provide with 

its preliminary conditions or 

prescriptions? 

50 CFR 221.20 What supporting 

information must NMFS provide with its 

preliminary conditions or prescriptions? 

Under this section, when a 

component of any Department files a 

preliminary condition or prescription 

with FERC, it must provide a supporting 

rationale, along with an index to its 

administrative record that identifies the 

studies or other documents relied upon. 

7 CFR 1.621 How do I request a 

hearing? 

43 CFR 45.21 How do I request a 

hearing? 

50 CFR 221.21 How do I request a 

hearing? 

This section provides that any party 

to the FERC license proceeding may 

request a hearing on disputed issues of 

material fact with respect to a 

preliminary condition or prescription by 

filing a request with the designated 

Departmental office. The request must 

be filed within 30 days after the 

deadline for filing preliminary 

conditions or prescriptions with FERC 

(or for pending applications that are 

already past that point in the FERC 

licensing process, within 30 days of the 

effective date of these regulations). A 

hearing request must contain a list of 

the factual issues that the requester 

disputes; the basis for the requester’s 

opinion that the facts, as stated by the 

Departmental component, are 

unfounded or erroneous; citations to 

any studies or other documents relied 

upon, and copies of any such 

documents that are not already in the 

record of the license proceeding. The 

requester must also provide a list of the 

witnesses and exhibits it intends to use 

at the hearing; this list will assist other 

parties in planning their discovery. 

7 CFR 1.622 How do I file a notice 

of intervention and response? 

43 CFR 45.22 How do I file a notice 

of intervention and response? 

50 CFR 221.22 How do I file a notice 

of intervention and response? 

Under this section, any other party to 

the FERC license proceeding may file a 

response to the hearing request and a 

notice of intervention in the hearing. 

The response and notice must be filed 

with the designated Departmental office 

within 15 days after a request for 

hearing is served. This deadline 

corresponds to the ILP deadline for 

filing reply comments to the 

preliminary conditions or prescriptions, 

i.e., 105 days after the REA notice. 18 

CFR 5.23(a). 

The response may not raise new 

disputed issues of material fact, since 

the deadline for doing so (under section 

7 CFR 1.621, 43 CFR 45.21, or 50 CFR 

221.21) will have passed. But the party 

filing a response may agree with the 

facts as stated either by the 

Departmental component or the hearing 

requester (or a mix of the two). In any 

event, the response must explain the 

party’s position with respect to the 

information provided by the requester. 

The party may either rely on the 

information provided by the 

Departmental component or the 

requester or may provide additional 

information. The party must also 

provide a list of the witnesses and 

exhibits it intends to use at the hearing. 

7 CFR 1.623 When will hearing 

requests be consolidated? 

43 CFR 45.23 When will hearing 

requests be consolidated? 

50 CFR 221.23 When will hearing 

requests be consolidated? 

This section provides that the 

Departments will confer on any hearing 

requests they receive, decide whether to 

consolidate them for hearing under 

designated criteria, and if so, decide 

which Department’s ALJ will conduct 

the hearing. As explained previously, all 

hearing requests with respect to any 

conditions from the same Department 

will be consolidated for hearing, as will 

all hearing requests with respect to any 

prescriptions from the same 

Department. 

In other circumstances—conditions 

and prescriptions from the same 

Department, conditions from more than 

one Department, prescriptions from 

more than one Department, etc.— the 

Departments may consolidate the 

hearings if there are common issues of 

material fact or consolidation is 

otherwise appropriate. Consolidation 

will often benefit both the Departments 

and the parties by avoiding duplication 

of effort and the risk of inconsistent 

results. 

7 CFR 1.624 How will the Forest 

Service respond to any hearing 

requests? 

43 CFR 45.24 How will the bureau 

respond to any hearing requests? 

50 CFR 221.24 How will NMFS 

respond to any hearing requests? 

Under this section in the Agriculture 

and Interior regulations, the 

Departmental component that filed the 

preliminary condition or prescription at 

issue must file an answer to any hearing 

request within 45 days after the 

deadline for filing any hearing requests 

(approximately 30 days after the 

deadline for filing any notice of 

intervention and response). The 

Commerce regulation is slightly 

different, since Commerce does not have 

a separate office where NMFS would 

file an answer. Rather, NMFS will 

determine under 50 CFR 221.24 whether 

to file an answer; if it decides to do so, 

the answer would be included in the 

referral to the appropriate ALJ’s office 

under 50 CFR 221.25. 

For all three Departments, the answer 

must state whether the Departmental 

component is willing to stipulate to the 

facts as alleged by the requester, 

believes that any issue raised is not 

factual or not material, or agrees that the 

issue is disputed, factual, and material. 

The Departmental component must also 

indicate whether the hearing request 

will be consolidated under section 7 

CFR 1.623, 43 CFR 45.23, or 50 CFR 

221.23 with any other hearing requests, 

and must provide a list of the witnesses 

and exhibits the Departmental 

component intends to use at the 

hearing. 

7 CFR 1.625 What will the Forest 

Service do with any hearing requests? 

43 CFR 45.25 What will DOI do with 

any hearing requests? 

50 CFR 221.25 What will NMFS do 

with any hearing requests? 

This section in the Agriculture and 

Interior regulations states that, within 5 

days after receipt of the answer, the 

designated Departmental office will 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69811 

refer the case to the appropriate 

Department’s ALJ office for a hearing 

and will notify the parties and FERC of 

the referral. The Commerce regulation 

combines the 45-day answer period and 

the 5-day referral period from the 

Agriculture and Interior regulations, and 

states that NMFS will refer the case for 

a hearing within 50 days after the 

deadline for filing any hearing requests 

and will notify the parties and FERC of 

the referral. 

7 CFR 1.626 What regulations apply 

to a case referred for a hearing? 

43 CFR 45.26 What regulations 

apply to a case referred for a hearing? 

50 CFR 221.26 What regulations 

apply to a case referred for a hearing? 

This section explains that the hearing 

will be conducted under the regulations 

of whichever Department is providing 

the ALJ to preside over the hearing. For 

example, a hearing that was requested 

under 7 CFR 1.621 or 50 CFR 221.21 

may be conducted under 43 CFR 45.30 

et seq., if multiple hearing requests are 

consolidated and assigned to an Interior 

ALJ. 

General Provisions Related to Hearings 

7 CFR 1.630 What will the Office of 

Administrative Law Judges do with a 

case referral? 

43 CFR 45.30 What will the Hearings 

Division do with a case referral? 

50 CFR 221.30 What will DOC’s 

designated ALJ office do with a case 

referral? 

This section provides that, within 5 

days after issuance of the referral notice, 

the appropriate ALJ’s office will docket 

the case, assign an ALJ, and issue a 

docketing notice. The ALJ will 

simultaneously issue a notice setting the 

time, place, and method for the initial 

prehearing conference under section 7 

CFR 1.640, 43 CFR 45.40, and 50 CFR 

221.40. 

7 CFR 1.631 What are the powers of 

the ALJ? 

43 CFR 45.31 What are the powers of 

the ALJ? 

50 CFR 221.31 What are the powers 

of the ALJ? 

This section states that the ALJ will 

have all powers necessary to conduct a 

fair, orderly, expeditious, and impartial 

hearing process, including the power to 

rule on motions, authorize discovery, 

regulate the course of hearings, and 

issue a decision on the disputed issues 

of material fact. 

7 CFR 1.632 What happens if the 

ALJ becomes unavailable? 

43 CFR 45.32 What happens if the 

ALJ becomes unavailable? 

50 CFR 221.32 What happens if the 

ALJ becomes unavailable? 

This section contains standard 

provisions for appointment of a 

successor ALJ, if the ALJ originally 

assigned becomes unavailable or unable 

to perform his or her duties. Given the 

short time period covered by the hearing 

process, it is expected that these 

provisions will rarely be used. 

7 CFR 1.633 Under what 

circumstances may the ALJ be 

disqualified? 

43 CFR 45.33 Under what 

circumstances may the ALJ be 

disqualified? 

50 CFR 221.33 Under what 

circumstances may the ALJ be 

disqualified? 

This section contains standard 

provisions for disqualification of the 

ALJ for personal bias or other cause. 

7 CFR 1.634 What is the law 

governing ex parte communications? 

43 CFR 45.34 What is the law 

governing ex parte communications? 

50 CFR 221.34 What is the law 

governing ex parte communications? 

This section contains standard 

provisions prohibiting most ex parte 

communications with the ALJ, 

consistent with the Administrative 

Procedure Act. Ex parte inquiries 

concerning case status or procedural 

requirements are generally permitted. 

7 CFR 1.635 What are the 

requirements for motions? 

43 CFR 45.35 What are the 

requirements for motions? 

50 CFR 221.35 What are the 

requirements for motions? 

Under this section, any party may 

apply for an order or ruling by 

presenting a motion to the ALJ in 

writing or at the hearing. Other parties 

may respond within 10 days, unless 

another regulation or the ALJ imposes a 

different response deadline. The 

expedited nature of the hearings under 

these rules will not allow for an 

extensive motions practice, as may 

occur in other administrative and 

judicial litigation. In particular, the 

rules do not provide for motions for 

summary decision (comparable to 

motions for summary judgment under 

FRCP 56), since the ALJ will have 

already determined in the initial 

prehearing conference that disputed 

issues of material fact require a hearing. 

Prehearing Conferences and Discovery 

7 CFR 1.640 What are the 

requirements for prehearing 

conferences? 

43 CFR 45.40 What are the 

requirements for prehearing 

conferences? 

50 CFR 221.40 What are the 

requirements for prehearing 

conferences? 

Paragraph (a) of this section provides 

for an initial prehearing conference to 

be conducted about 20 days after 

issuance of the referral notice under 

section 7 CFR 1.625, 43 CFR 45.25, or 

50 CFR 221.25 (approximately 15 days 

after issuance of the docketing notice 

under section 7 CFR 1.630, 43 CFR 

45.30, or 50 CFR 221.30). This 

conference will be critical to the overall 

hearing process. 

Theoretically, an initial prehearing 

conference could be held within a few 

days after the assignment of an ALJ, but 

in fact the parties will need the 

additional time to develop and file their 

discovery requests and objections and 

otherwise prepare for the conference. 

Under section 7 CFR 1.641(d), 43 CFR 

45.41(d), or 50 CFR 221.41(d), the 

parties must file their discovery motions 

within 7 days after issuance of the 

referral notice under section 7 CFR 

1.625, 43 CFR 45.25, or 50 CFR 221.25, 

or approximately 12 days after the 

Department files its answer. While the 

parties can start developing their 

discovery requests sooner, they will not 

know until the Department files its 

answer under section 7 CFR 1.624, 43 

CFR 45.24, or 50 CFR 221.24 what 

issues remain in dispute and what 

witnesses and exhibits the Department 

intends to present at the hearing. (The 

parties also cannot file discovery 

motions with the ALJ before any ALJ 

has been assigned to the case under 

section 7 CFR 1.630, 43 CFR 45.30, or 

50 CFR 221.30, which occurs just 2 days 

before the discovery motions are due.) 

Under section 7 CFR 1.641(e), 43 CFR 

45.41(e), or 50 CFR 221.41(e), the parties 

must file any objections to another 

party’s discovery motion within 7 days 

after service of a discovery motion. 

Prior to the initial prehearing 

conference, the parties’ representatives 

are required to make a good faith effort 

to meet (most likely by telephone) and 

attempt to reach agreement on discovery 

and the schedule of remaining steps in 

the hearing process. Department counsel 

are encouraged to take the lead in 

scheduling the meeting of the parties, if 

other representatives do not do so. 

Agreements reached at the meeting of 

the parties will serve to expedite the 

initial prehearing conference and may 

allow the parties to initiate discovery 

before the conference. 

The initial prehearing conference may 

be held in person, by conference call, or 

by other appropriate means. It will be 

used to identify, narrow and clarify the 

disputed issues of material fact; to rule 

on the parties’ motions for discovery 

(and objections thereto) and to set a 

deadline for the completion of 

discovery; to discuss the evidence on 

which each party intends to rely at the 

hearing; to set the deadline for 

69812 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

submission of written testimony under 

section 7 CFR 1.652, 43 CFR 45.52, or 

50 CFR 221.52; and to set the date, time, 

and place of the hearing. The conference 

may also be used to discuss limiting and 

grouping witnesses to avoid 

duplication; to discuss stipulations of 

fact and of the content and authenticity 

of documents; to consider requests that 

the ALJ take official notice of public 

records or other matters; to discuss the 

submission of documents in electronic 

form; and to consider any other matters 

that may aid in the disposition of the 

case. 

Under paragraph (b) of this section, 

the ALJ may schedule other prehearing 

conferences as needed. Under paragraph 

(g), within 2 days of the conclusion of 

any conference, the ALJ will issue an 

order setting forth any agreements 

reached by the parties and any rulings 

made by the ALJ. 

7 CFR 1.641 How may parties obtain 

discovery of information needed for the 

case? 

43 CFR 45.41 How may parties 

obtain discovery of information needed 

for the case? 

50 CFR 221.41 How may parties 

obtain discovery of information needed 

for the case? 

This section provides that parties may 

obtain discovery by agreement of the 

parties or by filing a motion within 7 

days after issuance of the referral notice 

under section 7 CFR 1.625, 43 CFR 

45.25, or 50 CFR 221.25. Any proposed 

discovery request must be attached to 

the motion. Other parties may file 

objections within 7 days after service of 

a discovery motion. The ALJ will rule 

on the motions and objections during or 

promptly after the initial prehearing 

conference. 

Under the Federal Rules of Civil 

Procedure (FRCP), the parties may 

initiate discovery on their own, without 

needing permission from the judge or 

agreement from other parties, and 

discovery often takes months to 

complete. Local court rules typically set 

limits on discovery; but generally ample 

time is available for the parties to 

propound discovery, seek protective 

orders, submit responses and objections, 

file motions to compel, etc. The 

expedited nature of the trial-type 

hearing under these regulations cannot 

accommodate such a protracted 

discovery process. As a result, the initial 

prehearing conference will be used as 

necessary to regulate the course of 

discovery and deal with disputes ‘‘up 

front’’ to the extent possible. 

Paragraph (a) of this section lists the 

following methods of discovery, as 

limited by this section, as available to 

the parties: interrogatories, depositions, 

and requests for documents or tangible 

things or for entry on land. The other 

main discovery tool under the FRCP, 

requests for admission, has been 

omitted as unnecessary in the context of 

these hearings. The parties will have 

just completed their exchange of hearing 

requests, responses, and answers, 

specifying what facts they agree to or 

dispute; and the ALJ will use the initial 

prehearing conference to further 

identify, narrow, and clarify the 

disputed issues and encourage 

stipulations. Under these circumstances, 

little if anything would be gained by the 

use of requests for admission. 

The ALJ will authorize discovery 

requested by a party only if the ALJ 

determines that the criteria in paragraph 

(b) of this section have been met. These 

criteria include that the discovery will 

not unreasonably delay the hearing 

process; that the scope of the discovery 

is not unduly burdensome; that the 

discovery method to be used is the least 

burdensome method available; and that 

the information sought is not already in 

the record of the license proceeding or 

otherwise obtainable by the party. 

These criteria are needed to keep the 

discovery process within reasonable 

bounds, in light of the tight time 

constraints applicable to the hearing. 

The criteria reflect the facts that the 

FERC license proceeding has been 

underway for over 3 years by this point; 

the parties have been dealing with each 

other extensively throughout that 

period; the great bulk of the relevant 

information has already been filed in 

the record of that proceeding; and the 

parties will have identified any 

additional information they may have in 

their hearing requests, responses, and 

answers. Consequently, there should be 

very little new information that the 

parties would need to uncover through 

an unfettered discovery process, even if 

there was time for it. 

Paragraphs (f) and (g) of this section 

contain standard limitations on a party’s 

ability to discover materials prepared by 

another party for the hearing or facts 

known or opinions held by another 

party’s expert. Paragraph (h) limits 

depositions to witnesses who will be 

unavailable to testify at the hearing. 

This limitation will further reduce the 

time needed for discovery and the 

burden on the parties, who could 

otherwise face the prospect of multiple 

depositions at multiple locations around 

the country during a very limited time 

period, while simultaneously 

responding to interrogatories, requests 

for documents, etc. There is also less 

need to depose witnesses who will be 

presented at the hearing, since under 

section 7 CFR 1.652, 43 CFR 45.52, or 

50 CFR 221.52, the direct testimony of 

such witnesses must be submitted in 

writing, generally 10 days before the 

hearing. 

Paragraph (h)(3) provides that a party 

may depose a senior Department 

employee only if the party shows that 

the employee’s testimony is necessary to 

provide significant information that is 

not available from any other source or 

by less burdensome means and that the 

deposition would not significantly 

interfere with the employee’s ability to 

perform his or her government duties. 

This limitation is based on case law 

under the FRCP, e.g., Jones v. 

Hirschfeld, 219 F.R.D. 71 (S.D.N.Y. 

2003); Alexander v. Federal Bureau of 

Investigation, 186 F.R.D. 1 (D.D.C. 

1998). 

Under paragraph (i) of this section, all 

discovery agreed to by the parties or 

approved by the ALJ must be completed 

within 25 days after the initial 

prehearing conference, unless the ALJ 

sets a different deadline. 

7 CFR 1.642 When must a party 

supplement or amend information it has 

previously provided? 

43 CFR 45.42 When must a party 

supplement or amend information it has 

previously provided? 

50 CFR 221.42 When must a party 

supplement or amend information it has 

previously provided? 

Paragraph (a) of this section states that 

a party must supplement or amend its 

discovery responses if it learns that a 

prior response is incorrect or 

incomplete. 

Paragraph (b) gives the parties 5 days 

after the completion of discovery to 

update their witness and exhibit lists. If 

a party wishes to include any new 

witness or exhibit on its updated list, it 

must provide an explanation of why the 

witness or exhibit was not included on 

the original list filed under section 7 

CFR 1.621, 43 CFR 45.21, or 50 CFR 

221.21; 7 CFR 1.622, 43 CFR 45.22, or 

50 CFR 221.22; or 7 CFR 1.624, 43 CFR 

45.24, or 50 CFR 221.24. Paragraph (c) 

provides for sanctions for a party’s 

failure to disclose information as 

required, unless the failure was 

substantially justified or is harmless. 

7 CFR 1.643 What are the 

requirements for written interrogatories? 

43 CFR 45.43 What are the 

requirements for written interrogatories? 

50 CFR 221.43 What are the 

requirements for written interrogatories? 

If the ALJ grants a motion for the use 

of interrogatories, this section provides 

that the other party must file its answers 

within 15 days. If the information 

requested could be obtained from a 

review of documents, the other party 

may provide access to the documents, 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69813 

rather than compiling the information 

for the requesting party. 

7 CFR 1.644 What are the 

requirements for depositions? 

43 CFR 45.44 What are the 

requirements for depositions? 

50 CFR 221.44 What are the 

requirements for depositions? 

If the ALJ grants a motion to depose 

a person, this section provides that the 

party taking the deposition must arrange 

and pay for the reporter. Other standard 

provisions relating to the taking, 

transcription, and signing of a 

deposition are detailed. If approved by 

the ALJ, a deposition may be taken by 

conference call or may be video 

recorded. 

7 CFR 1.645 What are the 

requirements for requests for documents 

or tangible things or entry on land? 

43 CFR 45.45 What are the 

requirements for requests for documents 

or tangible things or entry on land? 

50 CFR 221.45 What are the 

requirements for requests for documents 

or tangible things or entry on land? 

If the ALJ grants a motion to use 

requests for production of documents or 

tangible things or entry on land, this 

section provides that the other party 

must file a response within 15 days. 

7 CFR 1.646 What sanctions may the 

ALJ impose for failure to comply with 

discovery? 

43 CFR 45.46 What sanctions may 

the ALJ impose for failure to comply 

with discovery? 

50 CFR 221.46 What sanctions may 

the ALJ impose for failure to comply 

with discovery? 

This section states that, if a party fails 

to comply with an order approving 

discovery, the ALJ may impose 

appropriate sanctions, such as not 

allowing the party to introduce evidence 

that was improperly withheld or 

inferring that the information withheld 

would have been adverse to the party. 

7 CFR 1.647 What are the 

requirements for subpoenas and witness 

fees? 

43 CFR 45.47 What are the 

requirements for subpoenas and witness 

fees? 

50 CFR 221.47 What are the 

requirements for subpoenas and witness 

fees? 

This section contains standard 

provisions regarding the issuance, 

service, and enforcement of a subpoena, 

to the extent authorized by law; 

payment of witness fees; and motions to 

quash. A limitation on subpoenaing 

senior Department employees is 

included, comparable to 7 CFR 

1.641(h)(3), 43 CFR 45.41(h)(3), or 50 

CFR 221.41(h)(3) discussed above. 

Hearing, Briefing, and Decision 

7 CFR 1.650 When and where will 

the hearing be held? 

43 CFR 45.50 When and where will 

the hearing be held? 

50 CFR 221.50 When and where will 

the hearing be held? 

This section states that the hearing 

will be held at the time and place set 

during the prehearing conference, 

generally within 15 days after the 

completion of discovery, unless the ALJ 

orders otherwise. 

7 CFR 1.651 What are the parties’

rights during the hearing? 

43 CFR 45.51 What are the parties’

rights during the hearing? 

50 CFR 221.51 What are the parties’

rights during the hearing? 

This section acknowledges the 

parties’ rights at the hearing to present 

direct and rebuttal evidence; to make 

objections, motions, and arguments; and 

to cross-examine witnesses. 

7 CFR 1.652 What are the 

requirements for presenting testimony? 

43 CFR 45.52 What are the 

requirements for presenting testimony? 

50 CFR 221.52 What are the 

requirements for presenting testimony? 

Paragraph (a) of this section requires 

the parties to submit any direct 

testimony in writing within 5 days after 

the date set for completion of discovery 

(generally 10 days before the hearing). 

Submission of written direct testimony 

in advance will assist the parties in 

preparing their cases and will expedite 

the hearing process, given the short time 

available for both discovery and the 

hearing. 

Under paragraph (b), crossexamination and re-direct will be 

conducted orally at the hearing. Under 

paragraph (c), the ALJ may allow a 

witness to testify by conference call. 

7 CFR 1.653 How may a party use a 

deposition in the hearing? 

43 CFR 45.53 How may a party use 

a deposition in the hearing? 

50 CFR 221.53 How may a party use 

a deposition in the hearing? 

This section contains standard 

provisions for the admissibility of a 

deposition of a witness who is 

unavailable to testify at the hearing. 

7 CFR 1.654 What are the 

requirements for exhibits, official notice, 

and stipulations? 

43 CFR 45.54 What are the 

requirements for exhibits, official notice, 

and stipulations? 

50 CFR 221.54 What are the 

requirements for exhibits, official notice, 

and stipulations? 

This section contains standard 

provisions on marking and offering 

exhibits, asking the ALJ to take official 

notice of public documents, and using 

stipulations regarding facts or the 

authenticity of documents. 

7 CFR 1.655 What evidence is 

admissible at the hearing? 

43 CFR 45.55 What evidence is 

admissible at the hearing? 

50 CFR 221.55 What evidence is 

admissible at the hearing? 

This section contains standard 

provisions on the admissibility of 

written, oral, documentary, or 

demonstrative evidence that is relevant, 

reliable, and probative, and not 

privileged or unduly repetitious or 

cumulative. As is typical in 

administrative proceedings, the rules of 

evidence used in Federal courts do not 

apply, and hearsay evidence is 

admissible. However, the Federal Rules 

of Evidence may be used as guidance by 

the ALJ and the parties in determining 

what evidence is relevant, reliable, 

probative, and not privileged. 

Evidentiary objections will be ruled on 

by the ALJ. 

7 CFR 1.656 What are the 

requirements for transcription of the 

hearing? 

43 CFR 45.56 What are the 

requirements for transcription of the 

hearing? 

50 CFR 221.56 What are the 

requirements for transcription of the 

hearing? 

This section contains standard 

provisions on transcripts and reporter’s 

fees, including correction of the 

transcript. 

7 CFR 1.657 What is the standard of 

proof? 

43 CFR 45.57 What is the standard 

of proof? 

50 CFR 221.57 What is the standard 

of proof? 

In accordance with the holding in 

Steadman v. SEC, 450 U.S. 91 (1981), 

this section establishes that the standard 

of proof is a preponderance of the 

evidence. 

Comments are sought on the separate 

question of who bears the burden of 

proof. 

7 CFR 1.658 When will the hearing 

record close? 

43 CFR 45.58 When will the hearing 

record close? 

50 CFR 221.58 When will the 

hearing record close? 

This section states that the hearing 

record will close when the ALJ closes 

the hearing, unless he or she directs 

otherwise. No evidence may be 

submitted once the record closes. 

7 CFR 1.659 What are the 

requirements for post-hearing briefs? 

43 CFR 45.59 What are the 

requirements for post-hearing briefs? 

50 CFR 221.59 What are the 

requirements for post-hearing briefs? 

69814 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

Under this section, each party may 

file an initial post-hearing brief within 

10 days after the close of the hearing, 

unless the ALJ sets a different deadline. 

Reply briefs may be filed only if 

requested by the ALJ. Form and content 

requirements for briefs are specified. 

7 CFR 1.660 What are the 

requirements for the ALJ’s decision? 

43 CFR 45.60 What are the 

requirements for the ALJ’s decision? 

50 CFR 221.60 What are the 

requirements for the ALJ’s decision? 

This section provides that the ALJ 

must issue a decision within 30 days 

after the close of the hearing or 90 days 

after issuance of the referral notice, 

whichever occurs first. The decision 

must contain findings of fact on all 

disputed issues of material fact; 

incidental conclusions of law necessary 

to make the findings of fact (e.g., rulings 

on materiality); and reasons for the 

findings and conclusions. The decision 

will not contain conclusions as to 

whether any preliminary condition or 

prescription should be adopted, 

modified, or rejected because that is a 

matter for the exercise of the 

Departments’ judgment in light of the 

ALJ’s findings and other available 

information (including any alternative 

conditions or prescriptions and 

supporting information submitted by 

the parties). 

Under paragraph (c) of this section, 

the ALJ will serve the decision on each 

party to the hearing and forward a copy 

of the decision to FERC, along with the 

complete hearing record, for inclusion 

in the license proceeding record. 

Paragraph (d) provides that the ALJ’s 

decision will be final, with respect to 

the disputed issues of material fact, for 

any Department involved in the hearing. 

The ALJ’s decision must be considered 

in deciding whether to accept an 

alternative in accordance with 7 CFR 

1.673, 43 CFR 45.73, or 50 CFR 221.73. 

In a normal adjudication under the 

Administrative Procedure Act, an ALJ 

issues an initial or recommended 

decision that is subject to appeal or 

review within the agency. 5 U.S.C. 

557(b). Even under section 557(b), 

however, an agency can limit the issues 

it will review on appeal, including 

denying any appeal from findings of 

fact. Attorney General’s Manual on the 

Administrative Procedure Act 84 (1947); 

3 Kenneth Culp Davis, Administrative 

Law Treatise § 17.14 (2d ed. 1980). 

Here, the ALJ is not issuing a normal 

decision, which under section 557(c) 

includes findings of fact, conclusions of 

law on substantive issues, and an 

‘‘appropriate rule, order, sanction, relief, 

or denial thereof.’’ Rather, the ALJ is 

providing findings of fact, without 

substantive legal rulings or any order, 

sanction, etc. The ALJ’s decision will 

not resolve, even provisionally, the 

overall dispute among the parties over 

the preliminary conditions and 

prescriptions. At most, the ALJ is 

providing a definitive view of the facts 

underlying the dispute, to be used by 

the parties in submitting their 

comments, the Departments in 

analyzing alternatives and developing 

modified conditions and prescriptions, 

and FERC in finalizing its NEPA 

document. 

Practical considerations also militate 

against any appeal of the ALJ’s decision. 

Section 241 of EPAct requires that the 

trial-type hearing be conducted within 

90 days and within FERC’s time frame 

for the license proceeding, and there is 

not enough time available to also 

include an appeals process, with 

additional briefing, analysis, and 

decision by an appellate body. 

Moreover, in the case of a consolidated 

hearing, it is not clear what appellate 

body would consider the appeal, or 

whether each Department involved 

would need to review the ALJ’s decision 

separately, with the potential for 

inconsistent results. 

Paragraph (d) of this section further 

provides that, to the extent the ALJ’s 

decision forms the basis for any 

condition or prescription subsequently 

included in the license, it may be 

subject to judicial review under 16 

U.S.C. 825l(b). Even though, with 

respect to the disputed issues of 

material fact, the ALJ’s decision will be 

final for the Departments involved, it 

will not be ripe for judicial review until 

the Departments complete their process 

of modifying conditions and 

prescriptions and FERC issues the 

license order. 

Alternatives Process 

7 CFR 1.670 How must documents 

be filed and served under §§ 1.670 

through 1.673? 

43 CFR 45.70 How must documents 

be filed and served under this subpart? 

50 CFR 221.70 How must documents 

be filed and served under this subpart? 

This section contains filing and 

service requirements for documents 

relating to the alternatives process. 

There are no special requirements for 

format, caption, or signature, as there 

are for documents relating to the hearing 

process. 

7 CFR 1.671 How do I propose an 

alternative? 

43 CFR 45.71 How do I propose an 

alternative? 

50 CFR 221.71 How do I propose an 

alternative? 

Under paragraph (a) of this section, 

any license party may propose an 

alternative within 30 days of the 

deadline for the Departments to file 

their preliminary conditions and 

prescriptions. Paragraph (b) specifies 

what must be included in a proposal for 

an alternative. The license party must 

include a description of the alternative 

and an explanation of how the 

alternative meets the criteria set out in 

FPA section 33. 

7 CFR 1.672 What will the Forest 

Service do with a proposed alternative? 

43 CFR 45.72 What will the bureau 

do with a proposed alternative? 

50 CFR 221.72 What will NMFS do 

with a proposed alternative? 

Within 60 days after the close of the 

comment period on FERC’s NEPA 

document, the Department must analyze 

the alternatives it has received, and file 

with FERC its modified conditions or 

prescription. Based on the information 

available to it, the Department could 

adopt as a modified condition or 

prescription its original preliminary 

condition or prescription, an alternative, 

or a new condition or prescription. The 

Department must also file its analysis of 

the modified condition or prescription 

and of any proposed alternatives. 

Of course, a party that proposed an 

alternative may in some cases choose to 

withdraw the alternative in response to 

the ALJ’s findings. In that case, no 

comparison between the preliminary 

condition or prescription and the 

withdrawn alternative would be 

necessary. 

7 CFR 1.673 How will the Forest 

Service analyze a proposed alternative 

and formulate its modified condition? 

43 CFR 45.73 How will the bureau 

analyze a proposed alternative and 

formulate its modified condition or 

prescription? 

50 CFR 221.73 How will NMFS 

analyze a proposed alternative and 

formulate its modified condition? 

Paragraph (a) of this section provides 

that, in deciding whether to adopt a 

proposed alternative, the Department 

must consider all available evidence, 

including information from any license 

party and FERC, comments received on 

the Department’s preliminary condition 

or prescription and on FERC’s NEPA 

document, findings of fact from the ALJ, 

and the information provided in support 

of the alternative under 7 CFR 1.671, 43 

CFR 45.71, or 50 CFR 221.71. 

Consistent with FPA section 33, 

paragraph (b) states that the Department 

must adopt a proposed alternative if it 

will either cost significantly less to 

implement or result in improved 

operation of the project works for 

electricity production, and if it will 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69815 

either provide for the adequate 

protection and utilization of the 

reservation under FPA section 4(e) or be 

no less protective than the fishway 

developed by the Department. 

Paragraphs (c) and (d) specify what 

information the Department must file 

with FERC along with its modified 

condition or prescription. This includes 

a written statement demonstrating that 

the Department gave equal 

consideration to the effects of the 

modified condition or prescription and 

any alternative not adopted on energy 

supply, distribution, cost, and use; flood 

control; navigation; water supply; air 

quality; and the preservation of other 

aspects of environmental quality. 

7 CFR 1.674 Has OMB approved the 

information collection provisions of 

§§ 1.670 through 1.673? 

43 CFR 45.74 Has OMB approved 

the information collection provisions of 

this subpart? 

50 CFR 221.74 Has OMB approved 

the information collection provisions of 

this subpart? 

This section informs the public of the 

Departments’ compliance with the 

Paperwork Reduction Act of 1995 and of 

the control number that the Office of 

Management and Budget (OMB) has 

issued for information collection related 

to the alternatives process. 

IV. Consultation With FERC 

Pursuant to EPAct’s requirement that 

the agencies promulgate these rules ‘‘in 

consultation with the Federal Energy 

Regulatory Commission,’’ the agencies 

have consulted with FERC regarding the 

content of these rules. 

V. Procedural Requirements 

A. Decision to issue interim final rules 

with request for comments. These 

regulations are being published as 

interim final rules with request for 

comments, and without prior notice and 

comment, under 5 U.S.C. 553(b)(A) and 

(B). Under section 553(b)(A), 

interpretative rules and rules of agency 

procedure or practice, like the 

regulations in these interim final rules, 

do not require a notice of proposed 

rulemaking. 

Moreover, under section 553(b)(B), 

the Departments for good cause find that 

prior notice and comment are 

impracticable and contrary to the public 

interest. Section 241 of EPAct requires 

the Departments to promulgate these 

rules jointly, in consultation with FERC, 

within 90 days of enactment of the 

statute. It would not be possible to meet 

that deadline if the Departments had to 

publish a proposed rule, allow the 

public sufficient time to submit 

comments, analyze the comments, and 

publish a final rule, especially given the 

need for interagency coordination at 

each step of the process. In addition to 

meeting the statutory mandate, the 

Departments find that it is in the public 

interest to promulgate these regulations 

promptly, so that (a) parties in 

hydropower license proceedings can 

avail themselves of the new trial-type 

hearing right and alternatives process 

established in EPAct and (b) delays in 

the FERC licensing process can be 

avoided or minimized. 

B. Decision to make the rules effective 

upon publication. Under 5 U.S.C. 

553(d)(3), the Departments for good 

cause find that these rules should be 

made effective upon publication in the 

Federal Register, rather than after the 

usual 30-day period. This finding is 

based on the same reasons that support 

the finding of good cause under section 

553(b)(B), explained above. As noted 

previously, there are a number of 

license applications currently pending 

before FERC to which EPAct’s trial-type 

hearing right and alternatives process 

apply. Section 241 of EPAct requires the 

Departments to fit the hearing process 

into FERC’s time frame for the license 

proceeding, and delaying the effective 

date of these rules would only increase 

the number of cases in which the FERC 

licensing time frame would need to be 

adjusted to accommodate a hearing 

request and/or the alternatives process. 

C. Regulatory Planning and Review 

(E.O. 12866). The rules in this document 

are significant. Although these rules 

will not have an adverse effect or an 

annual effect of $100 million or more on 

the economy, OMB has determined that 

the procedures for an expedited trialtype hearing on disputed issues of 

material fact represent a novel approach 

to public participation and 

administrative review and have 

interagency implications. Therefore, 

OMB has reviewed these rules under 

Executive Order 12866. 

1. These rules will not have an annual 

economic effect of $100 million or 

adversely affect an economic sector, 

productivity, competition, jobs, the 

environment, public health or safety, or 

other units of government. A costbenefit and economic analysis is not 

required. 

The Departments expect about 47 

requests for hearing per year under the 

rules, each requiring about 800 hours of 

additional work by the requesters and 

600 hours for other parties to the 

hearing process. The Departments 

expect about 351 alternative conditions 

and prescriptions to be proposed per 

year under the rules, each requiring 

about 200 hours of additional work by 

the proponent and 120 hours for other 

parties to the alternatives process. Staff 

costs for 47 hearing requests and 351 

alternatives per year are estimated at $5 

million and hence clearly fall well short 

of $100 million. This conclusion also 

holds in a worst-case analysis: if a 

hearing was requested and an 

alternative was proposed for every set of 

preliminary conditions or prescriptions, 

there would be about 97 hearings per 

year and 701 alternatives to analyze. 

Furthermore, because the decision to 

request a hearing or propose an 

alternative is entirely at the discretion of 

the party, any cost to the party will be 

incurred only when the party decides 

that the cost will be justified by the 

benefits of the process. 

2. These rules will not create 

inconsistencies with or interfere with 

other agencies’ actions. Agencies other 

than the three Departments and FERC 

will not be affected by the hearing 

process authorized by the rules; and the 

rules have been crafted to avoid any 

inconsistencies or interference with the 

actions of the three Departments and 

FERC. 

3. These rules will not alter the 

budgetary effects of entitlements, grants, 

user fees, loan programs, or the rights 

and obligations of their recipients. 

These rules pertain only to the hearing 

procedures implementing recent 

amendments to the FPA, not to 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients. 

4. The assessment of OMB is that the 

rules raise novel policy issues, in that 

the expedited trial-type hearing process 

represents a novel approach to public 

participation and administrative review. 

D. Regulatory Flexibility Act. The 

Departments certify that these rules will 

not have a significant economic effect 

on a substantial number of small entities 

under the Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. 

These rules will not affect a 

substantial number of small entities. 

According to the Small Business 

Administration, for NAICS code 221111, 

hydroelectric power generation, a firm 

is small if, including its affiliates, its 

total electric output for the preceding 

fiscal year did not exceed 4 million 

megawatt hours. Although the regulated 

community of FERC licensees does 

include a substantial number of small 

entities, the number of affected entities 

in a given year is likely to be small, 

perhaps three to six per year. 

More important, the effect of the rules 

on small entities will not be significant. 

Any entity affected by these rules will 

have already been heavily involved in a 

FERC hydropower licensing proceeding, 

submitting and commenting on 

69816 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

information in the record of that 

proceeding. These rules merely provide 

an additional administrative procedure, 

should the entity choose to use it, to 

obtain a definitive ruling on disputed 

issues of material fact with respect to 

conditions and prescriptions to be 

included in the license. Any cost to the 

entity will be incurred only when it 

decides that the cost will be justified by 

the benefits of the process. For these 

reasons, the rules will not have a 

significant economic effect. 

E. Small Business Regulatory 

Enforcement Fairness Act. These rules 

are not major under the Small Business 

Regulatory Enforcement Fairness Act, 5 

U.S.C. 804(2). 

1. As explained above, these rules 

will not have an annual effect on the 

economy of $100 million or more. 

2. These rules will not cause a major 

increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. A 

hearing process for disputed issues of 

material fact with respect to the 

Departments’ conditions and 

prescriptions will not affect costs or 

prices. 

3. These rules will not have 

significant, adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises. 

Implementing recent amendments to the 

FPA by establishing the hearing 

procedures in these rules should have 

no effects, adverse or beneficial, on 

competition, employment, investment, 

productivity, innovation, or the ability 

of United States-based enterprises to 

compete with foreign-based enterprises. 

F. Unfunded Mandates Reform Act. In 

accordance with the Unfunded 

Mandates Reform Act, 2 U.S.C 1531 et 

seq., The Departments find that: 

1. These rules will not have a 

significant or unique effect on State, 

local, or Tribal governments or the 

private sector. 

2. These rules will not produce an 

unfunded Federal mandate of $100 

million or more on State, local, or Tribal 

governments in the aggregate or on the 

private sector in any year; i.e., they do 

not constitute a ‘‘significant regulatory 

action’’ under the Unfunded Mandates 

Reform Act. State, local, and Tribal 

governments routinely file comments on 

the Departments’ licensing conditions 

under the existing MCRP policy. The 

new opportunity for a hearing will be 

available to a State, local, or Tribal 

government only if it is a party to the 

license proceeding and chooses to 

participate in the hearing process. 

Therefore, a statement containing the 

information required by the Unfunded 

Mandates Reform Act is not required. 

G. Takings (E.O. 12630). In 

accordance with Executive Order 12630, 

the Departments conclude that these 

rules will not have significant takings 

implications. The conditions and 

prescriptions included in hydropower 

licenses relate to operation of 

hydropower facilities on resources not 

owned by the applicant, i.e., public 

waterways and/or reservations. 

Therefore, these rules will not result in 

a taking of private property, and a 

takings implication assessment is not 

required. 

H. Federalism (E.O. 13132). In 

accordance with Executive Order 13132, 

the Departments find that these rules do 

not have sufficient federalism 

implications to warrant the preparation 

of a Federalism Assessment. There is no 

foreseeable effect on States from 

establishing hearing procedures for 

disputed issues of material fact 

regarding Departmental conditions and 

prescriptions. The rules will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. The rules will not 

preempt State law. Therefore, a 

Federalism Assessment is not required. 

I. Civil Justice Reform (E.O. 12988). In 

accordance with Executive Order 12988, 

the Departments have determined that 

these rules will not unduly burden the 

judicial system and that they meet the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. The rules provide clear 

language as to what is allowed and what 

is prohibited. Litigation regarding FERC 

hydropower licenses currently begins 

with a rehearing before FERC and then 

moves to Federal appeals court. By 

offering a trial-type hearing on disputed 

issues of material fact with respect to 

conditions and prescriptions developed 

by the Departments, the rules will likely 

result in a decrease in the number of 

proceedings that are litigated. 

J. Paperwork Reduction Act. With 

respect to the hearing process, these 

rules are exempt from the requirements 

of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. (PRA), because they 

will apply to the conduct of agency 

administrative proceedings involving 

specific individuals and entities. 44 

U.S.C. 3518(c); 5 CFR 1320.4(a)(2). 

However, with respect to the 

alternatives process, these rules contain 

provisions that would collect 

information from the public, and 

therefore require approval from OMB 

under the PRA. According to the PRA, 

a Federal agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number that indicates OMB 

approval. OMB has reviewed the 

information collection in these rules on 

an emergency basis and approved it 

under OMB control number 1094–0001. 

This approval expires May 31, 2006. 

The purpose of the information 

collection in this rulemaking is to 

provide an opportunity for license 

parties to propose an alternative 

condition or prescription. Responses to 

this information collection are 

voluntary. We estimate that an average 

of 351 alternatives will be submitted per 

year over the next 3 years. We estimate 

that the average burden for preparing 

and submitting an alternative will be 

200 hours; thus, the total information 

collection burden of this rulemaking is 

about 70,200 hours per year. 

Because this information collection 

was approved on an emergency basis, 

the OMB approval will expire in 6 

months. We will be requesting a 3-year 

extension from OMB for this collection 

in accordance with the normal process 

for renewing an information collection 

approval. The first step in this renewal 

process is to request, via a Federal 

Register notice, public comments on the 

information collection. We are hereby 

doing so. In particular, we request your 

comments on (1) whether the collection 

of information is necessary and 

appropriate for its intended purpose; (2) 

the accuracy of our estimate of the 

burden; (3) ways to enhance the quality, 

utility, and clarity of the information 

collected; and (4) ways to minimize the 

burden on the respondents of the 

collection of information, including the 

possible use of automated collection 

techniques or other forms of information 

technology. 

Please submit your comments by 

January 17, 2006 using one of the 

methods listed in the ADDRESSES section 

above. 

If you would like a copy of our 

submission to OMB that requested 

emergency approval of this information 

collection, which includes the OMB 

Form 83–I and supporting statement, 

please contact Larry Finfer as listed in 

the FOR FURTHER INFORMATION CONTACT

section above. A copy will be sent to 

you at no charge. 

K. National Environmental Policy Act. 

The Departments have analyzed their 

respective rules in accordance with 

NEPA, Council on Environmental 

Quality (CEQ) regulations, 40 CFR part 

1500, and the Departments’ internal 

NEPA guidance. CEQ regulations, at 40 

CFR 1508.4, define a ‘‘categorical 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69817 

exclusion’’ as a category of actions that 

a department has determined ordinarily 

do not, individually or cumulatively, 

have a significant effect on the human 

environment. The regulations further 

direct each department to adopt NEPA 

procedures, including categorical 

exclusions. 40 CFR 1507.3. 

Each Department has determined that 

these rules are categorically excluded 

from further environmental analysis 

under NEPA in accordance with its own 

authorities, listed below. These rules 

promulgate regulations of an 

administrative and procedural nature 

relating to trial-type hearings and the 

submission and analysis of alternatives 

as mandated under FPA, as amended by 

EPAct. They do not individually or 

cumulatively have a significant impact 

on the human environment and, 

therefore, neither an EA nor an EIS 

under NEPA is required. The relevant 

authorities for each Department are as 

follows: 

Agriculture: 7 CFR 1b.3(b); Forest 

Service Handbook 1909.15, 31.12. 

Interior: 516 Departmental Manual 2, 

Appendices 1–2. 

Commerce: NOAA Administrative 

Order 216–6, sections 5.05 and 

6.03c3(i). 

L. Government-to-Government 

relationship with Indian Tribes. In 

accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments,’’ 59 FR 22951 (May 4, 

1994), supplemented by Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, 65 FR 67249 (Nov. 6, 

2000), the Departments have assessed 

the impact of these rules on Tribal trust 

resources and have determined that they 

do not directly affect Tribal resources. 

The rules are procedural and 

administrative in nature. However, 

conditions and actions associated with 

an actual hydropower licensing 

proposal may directly affect Tribal 

resources; therefore the Departments 

will consult with Tribal governments 

when developing section 4(e) conditions 

and section 18 prescriptions needed to 

address the management of those 

resources. 

M. Effects on the Nation’s Energy 

Supply. In accordance with Executive 

Order 13211, the Departments find that 

these rules will not have substantial 

direct effects on energy supply, 

distribution, or use, including shortfall 

in supply or price increase. Recent 

analysis by FERC has found that, on 

average, installed capacity increased 

through licensing by 4.06 percent, and 

the average annual generation loss, 

attributable largely to increased flows to 

protect aquatic resources, was 1.59 

percent. (Report on Hydroelectric 

Licensing Policies, Procedures, and 

Regulations: Comprehensive Review 

and Recommendations Pursuant to 

Section 603 of the Energy Act of 2000, 

prepared by the staff of the Federal 

Energy Regulatory Commission, May 

2001.) Since the licensing process itself 

has such a modest energy impact, these 

rules, which affect only the 

Departments’ administrative review 

procedures, are not expected to have a 

significant impact under the Executive 

Order (i.e., reductions in electricity 

production in excess of 1 billion 

kilowatt-hours per year or in excess of 

500 megawatts of installed capacity). 

N. Clarity of These Regulations. 

Executive Order 12866 requires each 

agency to write regulations that are easy 

to understand. We invite your 

comments on how to make these rules 

easier to understand, including answers 

to the following questions: (1) Are the 

requirements in the rules clearly stated? 

(2) Do the rules contain technical 

language or jargon that interferes with 

their clarity? (3) Does the format of the 

rules (grouping and order of sections, 

use of headings, paragraphing, etc.) aid 

or reduce their clarity? (4) Would the 

rules be easier to understand if they 

were divided into more (but shorter) 

sections? (A ‘‘section’’ appears in bold 

type and is preceded by the symbol ‘‘§ ’’

and a numbered heading, for example, 

§ 1.602 What terms are used in this 

subpart?) (5) Is the description of the 

rules in the SUPPLEMENTARY INFORMATION

section of the preamble helpful in 

understanding the rules? (6) What else 

could we do to make the rules easier to 

understand? 

List of Subjects in 7 CFR Part 1, 43 CFR 

Part 45, 50 CFR Part 221 

Administrative practice and 

procedure, Fisheries, Hydroelectric 

power, Indians—lands, National forests, 

National parks, National wildlife refuge 

system, Public land, Waterways, 

Wildlife. 

Dated: November 9, 2005. 

David P. Tenny, 

Deputy Undersecretary—Natural Resources 

and Environment, U.S. Department of 

Agriculture. 

Dated: November 8, 2005. 

P. Lynn Scarlett, 

Assistant Secretary—Policy, Management 

and Budget, U.S. Department of the Interior. 

Dated: November 8, 2005. 

James W. Balsiger, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration, U.S. 

Department of Commerce. 

■ For the reasons set forth in the 

preamble, the Departments of 

Agriculture, the Interior, and Commerce 

amend titles 7, 43, and 50 of the Code 

of Federal Regulations as set forth 

below. 

Department of Agriculture 

7 CFR Subtitle A 

PART 1—ADMINISTRATIVE 

REGULATIONS 

■ 1. The Department of Agriculture adds 

subpart O to part 1, title 7, to read as 

follows: 

Subpart O—Conditions in FERC 

Hydropower Licenses 

General Provisions 

Sec.

1.601 What is the purpose of this subpart, 

and to what license proceedings does it 

apply? 

1.602 What terms are used in this subpart? 

1.603 How are time periods computed? 

1.604 What deadlines apply to pending 

applications? 

Hearing Process 

Representatives 

1.610 Who may represent a party, and what 

requirements apply to a representative? 

Document Filing and Service 

1.611 What are the form and content 

requirements for documents under 

§§ 1.611 through 1.660? 

1.612 Where and how must documents be 

filed? 

1.613 What are the requirements for service 

of documents? 

Initiation of Hearing Process 

1.620 What supporting information must 

the Forest Service provide with its 

preliminary conditions? 

1.621 How do I request a hearing? 

1.622 How do I file a notice of intervention 

and response? 

1.623 When will hearing requests be 

consolidated? 

1.624 How will the Forest Service respond 

to any hearing requests? 

69818 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

1.625 What will the Forest Service do with 

any hearing requests? 

1.626 What regulations apply to a case 

referred for a hearing? 

General Provisions Related to Hearings 

1.630 What will OALJ do with a case 

referral? 

1.631 What are the powers of the ALJ? 

1.632 What happens if the ALJ becomes 

unavailable? 

1.633 Under what circumstances may the 

ALJ be disqualified? 

1.634 What is the law governing ex parte 

communications? 

1.635 What are the requirements for 

motions? 

Prehearing Conferences and Discovery 

1.640 What are the requirements for 

prehearing conferences? 

1.641 How may parties obtain discovery of 

information needed for the case? 

1.642 When must a party supplement or 

amend information it has previously 

provided? 

1.643 What are the requirements for written 

interrogatories? 

1.644 What are the requirements for 

depositions? 

1.645 What are the requirements for 

requests for documents or tangible things 

or entry on land? 

1.646 What sanctions may the ALJ impose 

for failure to comply with discovery? 

1.647 What are the requirements for 

subpoenas and witness fees? 

Hearing, Briefing, and Decision 

1.650 When and where will the hearing be 

held? 

1.651 What are the parties’ rights during the 

hearing? 

1.652 What are the requirements for 

presenting testimony? 

1.653 How may a party use a deposition in 

the hearing? 

1.654 What are the requirements for 

exhibits, official notice, and stipulations? 

1.655 What evidence is admissible at the 

hearing? 

1.656 What are the requirements for 

transcription of the hearing? 

1.657 What is the standard of proof? 

1.658 When will the hearing record close? 

1.659 What are the requirements for 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 §§ 1.670 through 1.673? 

1.671 How do I propose an alternative? 

1.672 What will the Forest Service do with 

a proposed alternative? 

1.673 How will the Forest Service analyze 

a proposed alternative and formulate its 

modified conditions? 

1.674 Has OMB approved the information 

collection provisions of §§ 1.670 through 

1.673? 

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

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 

subpart does not apply to 

recommendations that the Forest 

Service may submit to FERC under FPA 

section 10(a), 16 U.S.C. 803(a). 

(3) The FPA also grants the 

Department of the Interior the authority 

to develop mandatory conditions and 

prescriptions, and the Department of 

Commerce the authority to develop 

mandatory prescriptions, for inclusion 

in a hydropower license. Where the 

Forest Service USDA and either or both 

of these other Departments develop 

conditions or prescriptions to be 

included in the same hydropower 

license and where the Departments 

agree to consolidate the hearings under 

§ 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 1.673 

contain rules of procedure applicable to 

the submission and consideration of 

alternative conditions under FPA 

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

allows any party to the license 

proceeding to propose an alternative to 

a condition deemed necessary by the 

Forest Service under section 4(e). 

(c) Reservation of authority. Where 

the Forest Service notifies FERC that it 

is reserving its authority to develop one 

or more conditions during the term of 

the license, the hearing and alternatives 

processes under this subpart for such 

conditions will be available if and when 

the Forest Service exercises its reserved 

authority. The Forest Service will 

consult with FERC and notify the 

license parties regarding how to initiate 

the hearing process and alternatives 

process at that time. 

(d) Applicability. (1) This subpart 

applies to any hydropower license 

proceeding for which the license has not 

been issued as of November 17, 2005 

and for which one or more preliminary 

conditions or conditions have been or 

are filed with FERC. 

(2) If the Forest Service has already 

filed one or more preliminary 

conditions or conditions as of November 

17, 2005, the special applicability 

provisions of § 1.604 also apply. 

§ 1.602 What terms are used in this 

subpart? 

As used in this subpart: 

ALJ means an administrative law 

judge appointed under 5 U.S.C. 3105 

and assigned to preside over the hearing 

process under this subpart. 

Alternative means a condition that a 

license party other than the Forest 

Service or another Department develops 

as an alternative to a preliminary 

condition from the Forest Service or 

another Department, under FPA sec. 33, 

16 U.S.C. 823d. 

Condition means a condition under 

FPA sec. 4(e), 16 U.S.C. 797(e), for the 

adequate protection and utilization of a 

reservation. 

Day means a calendar day. 

Department means the Department of 

Agriculture, Department of Commerce, 

or Department of the Interior. 

Discovery means a prehearing process 

for obtaining facts or information to 

assist a party in preparing or presenting 

its case. 

Ex parte communication means an 

oral or written communication to the 

ALJ that is made without providing all 

parties reasonable notice and an 

opportunity to participate. 

FERC means the Federal Energy 

Regulatory Commission. 

Forest Service means the USDA Forest 

Service. 

FPA means the Federal Power Act, 16 

U.S.C. 791 et seq. 

Hearing Clerk means the Hearing 

Clerk, USDA, 1400 Independence Ave., 

SW., Washington, DC 20250; phone: 

202–720–4443, facsimile: 202–720–

9776. 

Intervention means a process by 

which a person who did not request a 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69819 

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 parts 4 or 5. 

Material fact means a fact that, if 

proved, may affect a Department’s 

decision whether to affirm, modify, or 

withdraw any condition or prescription. 

NEPA document means an 

environmental assessment or 

environmental impact statement issued 

to comply with the requirements of the 

National Environmental Policy Act of 

1969, 42 U.S.C. 4321 et seq. 

NFS means Deputy Chief, National 

Forest Systems, Forest Service. The 

service and mailing address under this 

subpart is NFS, Washington Office (WO) 

Lands Staff, Mail Stop 1124, 1400 

Independence Avenue, SW., 

Washington, DC 20250–0003, telephone 

202–205–1248, facsimile number 202–

205–1604. 

Office of Administrative Law Judges 

(OALJ) is the office within USDA in 

which ALJs conduct hearings under the 

regulations in this subpart. 

Party means, with respect to USDA’s 

hearing process: 

(1) A license party that has filed a 

timely request for a hearing under: 

(i) Section 1.621; or 

(ii) Either 43 CFR 45.21 or 50 CFR 

221.21, with respect to a hearing process 

consolidated under § 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, if it has filed 

a preliminary condition; and 

(4) Any other Department that has 

filed a preliminary condition or 

prescription, with respect to a hearing 

process consolidated under § 1.623. 

Person means an individual; a 

partnership, corporation, association, or 

other legal entity; an unincorporated 

organization; and any federal, state, 

tribal, county, district, territorial, or 

local government or agency. 

Preliminary condition or prescription 

means a preliminary condition or 

prescription filed by a Department with 

FERC under 18 CFR 4.34(b), 4.34(i), or 

5.22(a) for potential inclusion in a 

hydropower license. 

Prescription means a fishway 

prescribed under FPA sec. 18, 16 U.S.C. 

811, to provide for the safe, timely, and 

effective passage of fish. 

Representative means a person who: 

(1) Is authorized by a party to 

represent the party in a hearing process 

under this subpart; and 

(2) Has filed an appearance under 

§ 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 § 1.624, 

or any document under §§ 1.670 

through 1.673. 

(2) An extension of time to file any 

other document under this subpart may 

be granted only upon a showing of good 

cause. 

(i) To request an extension of time, a 

party must file a motion under § 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 pending 

applications? 

(a) Applicability. (1) This section 

applies to any case in which the Forest 

Service has filed a preliminary 

condition or condition with FERC 

before November 17, 2005 and FERC has 

not issued a license as of that date. 

(2) The deadlines in this section will 

apply in such a case, in lieu of any 

inconsistent deadline in other sections 

of this subpart. 

(b) Hearing process. (1) Any request 

for a hearing under § 1.621 must be filed 

with NFS by December 19, 2005. 

(2) Any notice of intervention and 

response under § 1.622 must be filed by 

January 3, 2006. 

(3) Upon receipt of a hearing request 

under paragraph (b)(1) of this section, 

the Forest Service must do the following 

by March 17, 2006: 

(i) Comply with the requirements of 

§ 1.623; 

(ii) Determine jointly with any other 

Department that has received a hearing 

request, after consultation with FERC, a 

time frame for the hearing process and 

a corresponding deadline for the Forest 

Service to file an answer under § 1.624; 

and 

(iii) Issue a notice to each party 

specifying the time frame for the hearing 

process, including the deadline for the 

Forest Service to file an answer. 

(c) Alternatives process. (1) Any 

alternative under § 1.671 must be filed 

with NFS by December 19, 2005. 

(2) Upon receipt of an alternative 

under paragraph (c)(1) of this section, if 

no hearing request is filed under 

paragraph (b)(1) of this section, the 

Forest Service must do the following by 

February 15, 2006: 

(i) Determine jointly with any other 

Department that has received a related 

alternative, after consultation with 

FERC, a time frame for the filing of a 

modified condition under § 1.672(b); 

and 

(ii) Issue a notice to the license party 

that has submitted the alternative, 

specifying the time frame for the filing 

of a modified condition. 

(3) Upon receipt of an alternative 

under paragraph (c)(1) of this section, if 

a hearing request is also filed under 

paragraph (b)(1) of this section, the 

Forest Service will follow the provisions 

of paragraph (b)(3) of this section. 

Hearing Process 

Representatives 

§ 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 

69820 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

authorize one of the following to 

represent it: 

(1) An attorney; 

(2) A partner, if the entity is a 

partnership; 

(3) An officer or full-time employee, 

if the entity is a corporation, 

association, or unincorporated 

organization; 

(4) A receiver, administrator, 

executor, or similar fiduciary, if the 

entity is a receivership, trust, or estate; 

or 

(5) An elected or appointed official or 

an employee, if the entity is a federal, 

state, tribal, county, district, territorial, 

or local government or component. 

(c) Appearance. A representative 

must file a notice of appearance. The 

notice must: 

(1) Meet the form and content 

requirements for documents under 

§ 1.611; 

(2) Include the name and address of 

the person on whose behalf the 

appearance is made; 

(3) If the representative is an attorney, 

include a statement that he or she is a 

member in good standing of the bar of 

the highest court of a state, the District 

of Columbia, or any territory or 

commonwealth of the United States 

(identifying which one); and 

(4) If the representative is not an 

attorney, include a statement explaining 

his or her authority to represent the 

entity. 

(d) Disqualification. The ALJ may 

disqualify any representative for 

misconduct or other good cause. 

Document Filing and Service 

§ 1.611 What are the form and content 

requirements for documents under §§ 1.610 

through 1.660? 

(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; 

(3) Be clearly typewritten, printed, or 

otherwise reproduced by a process that 

yields legible and permanent copies; 

(4) Use 10 point font size or larger; 

(5) Be double-spaced except for 

footnotes and long quotations, which 

may be single-spaced; 

(6) Have margins of at least 1 inch; 

and 

(7) Be bound on the left side, if 

bound. 

(b) Caption. Each document filed 

under §§ 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 § 1.625, any documents 

must be filed with NFS. NFS’s address, 

telephone number, and facsimile 

number are set forth in § 1.602. 

(2) NFS will notify the parties of the 

date on which it refers a case for 

docketing under § 1.625. After that date, 

any documents must be filed with: 

(i) The Hearing Clerk, if USDA will be 

conducting the hearing. The Hearing 

Clerk’s address, telephone number, and 

facsimile number are set forth in 

§ 1.602; or 

(ii) The hearings component of or 

used by another Department, if that 

Department will be conducting the 

hearing under § 1.625. The name, 

address, telephone number, and 

facsimile number of the appropriate 

hearings component will be provided in 

the referral notice from the Forest 

Service. 

(b) Method of filing. (1) A document 

must be filed with the appropriate office 

under paragraph (a) of this section using 

one of the following methods: 

(i) By hand delivery of the original 

document; 

(ii) By sending the original document 

by express mail or courier service for 

delivery on the next business day; or 

(iii) By sending the document by 

facsimile if: 

(A) The document is 20 pages or less, 

including all attachments; 

(B) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(C) The original of the document is 

sent by regular mail on the same day. 

(2) Parties are encouraged, but not 

required, to supplement any filing by 

providing the appropriate office with an 

electronic copy of the document on 

diskette or compact disc. 

(c) Date of filing. A document under 

§§ 1.610 through 1.660 is considered 

filed on the date it is received. However, 

any document received after 5 p.m. at 

the place where the filing is due is 

considered filed on the next regular 

business day. 

(d) Nonconforming documents. If any 

document submitted for filing under 

§§ 1.610 through 1.660 does not comply 

with the requirements of §§ 1.610 

through 1.660 or any applicable order, 

it may be rejected. If the defect is minor, 

the party may be notified of the defect 

and given a chance to correct it. 

§ 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 served 

on FERC and each license party, using 

one of the methods of service in 

paragraph (c) of this section. 

(2) A complete copy of any notice of 

intervention and response under § 1.622 

must be: 

(i) Served on FERC, the license 

applicant, any person who has filed a 

request for hearing under § 1.621, and 

the Forest Service, using one of the 

methods of service in paragraph (c) of 

this section; and 

(ii) Sent to any other license party 

using regular mail. 

(3) A complete copy of any other filed 

document must be served on each party, 

using one of the methods of service in 

paragraph (c) of this section. 

(b) Documents issued by the Hearing 

Clerk or ALJ. A complete copy of any 

notice, order, decision, or other 

document issued by the Hearing Clerk 

or the ALJ under §§ 1.610 through 1.660 

must be served on each party, using one 

of the methods of service in paragraph 

(c) of this section. 

(c) Method of service. Service must be 

accomplished by one of the following 

methods: 

(1) By hand delivery of the document; 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69821 

(2) By sending the document by 

express mail or courier service for 

delivery on the next business day; 

(3) By sending the document by 

facsimile if: 

(i) The document is 20 pages or less, 

including all attachments; 

(ii) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(iii) The document is sent by regular 

mail on the same day; or 

(4) By sending the document, 

including all attachments, by electronic 

mail if: 

(i) A copy of the document is sent by 

regular mail on the same day; and 

(ii) The party acknowledges receipt of 

the document by close of the next 

business day. 

(d) Acknowledgment of service. Any 

party who receives a document under 

§§ 1.610 through 1.660 by electronic 

mail must promptly send a reply 

electronic mail message acknowledging 

receipt. 

(e) Certificate of service. A certificate 

of service must be attached to each 

document filed under §§ 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 preliminary 

conditions with FERC, it must include 

a rationale for the conditions and an 

index to the Forest Service’s 

administrative record that identifies all 

documents relied upon. 

(2) If any of the documents relied 

upon are not already in the license 

proceeding record, the Forest Service 

must: 

(i) File them with FERC at the time it 

files the preliminary conditions; and 

(ii) Provide paper or electronic copies 

to the license applicant. 

(b) Service. In addition to serving a 

copy of its preliminary conditions on 

each license party, the Forest Service 

must provide a copy to the Hearing 

Clerk if and when a request for a hearing 

is filed with respect to the preliminary 

conditions. 

§ 1.621 How do I request a hearing? 

(a) General. To request a hearing on 

disputed issues of material fact with 

respect to any condition filed by the 

Forest Service, you must: 

(1) Be a license party; and 

(2) File with NFS a written request for 

a hearing within 30 days after the 

deadline for the Departments to file 

preliminary conditions with FERC. 

(b) Content. Your hearing request 

must contain: 

(1) A numbered list of the factual 

issues that you allege are in dispute, 

each stated in a single, concise sentence; 

and 

(2) The following information with 

respect to each issue: 

(i) The specific factual statements 

made or relied upon by the Forest 

Service under § 1.620(a) that you 

dispute; 

(ii) The basis for your opinion that 

those factual statements are unfounded 

or erroneous; 

(iii) The basis for your opinion that 

any factual dispute is material; and 

(iv) With respect to any scientific 

studies, literature, and other 

documented information supporting 

your opinions under paragraphs 

(b)(2)(ii) and (b)(2)(iii) of this section, 

specific citations to the information 

relied upon. If any such document is not 

already in the license proceeding 

record, you must provide a copy with 

the request. 

(c) Witnesses and exhibits. Your 

hearing request must also list the 

witnesses and exhibits that you intend 

to present at the hearing, other than 

solely for impeachment purposes. 

(1) For each witness listed, you must 

provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony. 

(2) For each exhibit listed, you must 

specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b)(2) of this section 

may not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

§ 1.622 How do I file a notice of 

intervention and response? 

(a) General. (1) To intervene as a party 

to the hearing process, you must: 

(i) Be a license party; and 

(ii) File with NFS a notice of 

intervention and a written response to 

any request for a hearing within 15 days 

after the date of service of the request 

for a hearing. 

(2) A license party filing a notice of 

intervention and response may not raise 

issues of material fact beyond those 

raised in the hearing request. 

(b) Content. In your notice of 

intervention and response you must 

explain your position with respect to 

the issues of material fact raised in the 

hearing request under § 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). 

(c) Witnesses and exhibits. Your 

response and notice must also list the 

witnesses and exhibits that you intend 

to present at the hearing, other than 

solely for impeachment purposes. 

(1) For each witness listed, you must 

provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony; and 

(2) For each exhibit listed, you must 

specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b) of this section may 

not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

§ 1.623 When will hearing requests be 

consolidated? 

(a) Initial Department coordination. If 

the Forest Service has received a copy 

of a hearing request, it must contact the 

other Departments within 10 days after 

the deadline for filing hearing requests 

under § 1.621 and determine: 

(1) Whether any of the other 

Departments has also filed a preliminary 

condition or prescription relating to the 

license with FERC; and 

(2) If so, whether the other 

Department has also received a hearing 

request with respect to the preliminary 

condition or prescription. 

(b) Decision on consolidation. Within 

25 days after the deadline for filing 

hearing requests under § 1.621, if the 

Forest Service has received a hearing 

request, it must: 

(1) Consult with any other 

Department that has also received a 

hearing request; and 

(2) Decide jointly with the other 

Department: 

69822 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

(i) Whether to consolidate the cases 

for hearing under paragraphs (c)(3)(ii) 

through (c)(3)(iv) of this section; and 

(ii) If so, which Department will 

conduct the hearing on their behalf. 

(c) Criteria. Cases will or may be 

consolidated as follows: 

(1) All hearing requests with respect 

to any conditions from the same 

Department will be consolidated for 

hearing. 

(2) All hearing requests with respect 

to any prescriptions from the same 

Department will be consolidated for 

hearing. 

(3) Any or all of the following may be 

consolidated for hearing, if the 

Departments involved determine that 

there are common issues of material fact 

or that consolidation is otherwise 

appropriate: 

(i) Two or more hearing requests with 

respect to any condition and any 

prescription from the same Department; 

(ii) Two or more hearing requests with 

respect to conditions from different 

Departments; 

(iii) Two or more hearing requests 

with respect to prescriptions from 

different Departments; or 

(iv) Two or more hearing requests 

with respect to any condition from one 

Department and any prescription from 

another Department. 

§ 1.624 How will the Forest Service 

respond to any hearing requests? 

(a) General. Within 45 days after the 

deadline in § 1.621(a)(2), the Forest 

Service may file with the Hearing Clerk 

an answer to any hearing request under 

§ 1.621. 

(b) Content. If the Forest Service files 

an answer: 

(1) For each of the numbered factual 

issues listed under § 1.621(b)(1), the 

answer must explain the Forest 

Service’s position with respect to the 

issues of material fact raised by the 

requester, including one or more of the 

following statements as appropriate: 

(i) That the Forest Service is willing 

to stipulate to the facts as alleged by the 

requester; 

(ii) That the Forest Service believes 

the issue listed by the requester is not 

a factual issue, explaining the basis for 

such belief; 

(iii) That the Forest Service believes 

the issue listed by the requester is not 

material, explaining the basis for such 

belief; or 

(iv) That the Forest Service agrees that 

the issue is factual, material, and in 

dispute. 

(2) The answer must also indicate 

whether the hearing request will be 

consolidated with one or more other 

hearing requests under § 1.623 and, if 

so: 

(i) Identify any other hearing request 

that will be consolidated with this 

hearing request; and 

(ii) State which Department will 

conduct the hearing and provide contact 

information for the appropriate 

Department hearings component. 

(c) Witnesses and exhibits. The Forest 

Service’s answer must also list the 

witnesses and exhibits that it intends to 

present at the hearing, other than solely 

for impeachment purposes. 

(1) For each witness listed, the Forest 

Service must provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony. 

(2) For each exhibit listed, the Forest 

Service must specify whether it is in the 

license proceeding record 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b)(1) of this section 

may not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

(e) Notice in lieu of answer. If the 

Forest Service elects not to file an 

answer to a hearing request: 

(1) The Forest Service is deemed to 

agree that the issues listed by the 

requester are factual, material, and in 

dispute; 

(2) The Forest Service may file a list 

of witnesses and exhibits with respect to 

the request only as provided in 

§ 1.642(b); and 

(3) The Forest Service must file a 

notice containing the information 

required by paragraph (b)(2) of this 

section, if the hearing request will be 

consolidated with one or more other 

hearing requests under § 1.623. 

§ 1.625 What will the Forest Service do 

with any hearing requests? 

(a) Case referral. Within 5 days after 

receipt of the Forest Service’s answer, 

NFS will refer the case for a hearing as 

follows: 

(1) If the hearing is to be conducted 

by USDA, NFS will refer the case to the 

OALJ. 

(2) If the hearing is to be conducted 

by another Department, NFS will refer 

the case to the hearings component used 

by that Department. 

(b) Content. The case referral will 

consist of the following: 

(1) A copy of any preliminary 

condition under § 1.620; 

(2) The original of any hearing request 

under § 1.621; 

(3) The original of any notice of 

intervention and response under 

§ 1.622; 

(4) The original of any answer under 

§ 1.624; and 

(5) An original referral notice under 

paragraph (c) of this section. 

(c) Notice. At the time NFS refers the 

case for a hearing, it must provide a 

referral notice that contains the 

following information: 

(1) The name, address, telephone 

number, and facsimile number of the 

Department hearings component that 

will conduct the hearing; 

(2) The name, address, and other 

contact information for the 

representative of each party to the 

hearing process; 

(3) An identification of any other 

hearing request that will be 

consolidated with this hearing request; 

and 

(4) The date on which NFS is referring 

the case for docketing. 

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

refer the case to the appropriate 

Department hearings component by one 

of the methods identified in 

§ 1.612(b)(1)(i) and (b)(1)(ii). 

(2) NFS must serve a copy of the 

referral notice on FERC and each party 

to the hearing by one of the methods 

identified in § 1.613(c)(1) and (c)(2). 

§ 1.626 What regulations apply to a case 

referred for a hearing? 

(a) If NFS refers the case to OALJ, 

these regulations will continue to apply 

to the hearing process. 

(b) If NFS refers the case to the 

Department of the Interior’s Office of 

Hearing and Appeals, the regulations at 

43 CFR 45.1 et seq. will apply from that 

point. 

(c) If NFS refers the case to the 

Department of Commerce’s designated 

ALJ office, the regulations at 50 CFR 

221.1 et seq. will apply from that point. 

General Provisions Related to Hearings 

§ 1.630 What will OALJ do with a case 

referral? 

Within 5 days after issuance of the 

referral notice under § 1.625(c), 43 CFR 

45.25(c), or 50 CFR 221.25(c): 

(a) The Hearing Clerk must: 

(1) Docket the case; 

(2) Assign an ALJ to preside over the 

hearing process and issue a decision; 

and 

(3) Issue a docketing notice that 

informs the parties of the docket 

number and the ALJ assigned to the 

case; and 

(b) The ALJ must issue a notice setting 

the time, place, and method for 

conducting an initial prehearing 

conference under § 1.640. This notice 

may be combined with the docketing 

notice under paragraph (a)(3) of this 

section. 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69823 

§ 1.631 What are the powers of the ALJ? 

The ALJ will have all powers 

necessary to conduct a fair, orderly, 

expeditious, and impartial hearing 

process, consistent with the 

requirements of § 1.660(a), including the 

powers to: 

(a) Administer oaths and affirmations; 

(b) Issue subpoenas to the extent 

authorized by law; 

(c) Rule on motions; 

(d) Authorize discovery as provided 

for in §§ 1.641 through 1.647; 

(e) Hold hearings and conferences; 

(f) Regulate the course of hearings; 

(g) Call and question witnesses; 

(h) Exclude any person from a hearing 

or conference for misconduct or other 

good cause; 

(i) Issue a decision consistent with 

§ 1.660(b) regarding any disputed issues 

of material fact relating to the Forest 

Service’s or other Department’s 

condition or prescription that has been 

referred to the ALJ for hearing; and 

(j) Take any other action authorized 

by law. 

§ 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 OALJ shall 

designate a successor. 

(b) If a hearing has commenced and 

the ALJ cannot proceed with it, a 

successor ALJ may do so. At the request 

of a party, the successor ALJ may recall 

any witness whose testimony is material 

and disputed, and who is available to 

testify again without undue burden. The 

successor ALJ may, within his or her 

discretion, recall any other witness. 

§ 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 10 pages. 

(b) Content. (1) Each motion must 

state clearly and concisely: 

(i) Its purpose and the relief sought; 

(ii) The facts constituting the grounds 

for the relief sought; and 

(iii) Any applicable statutory or 

regulatory authority. 

(2) A proposed order must accompany 

the motion. 

(c) Response. Except as otherwise 

required by this subpart or by order of 

the ALJ, any other party may file a 

response to a written motion within 10 

days after service of the motion. When 

a party presents a motion at a hearing, 

any other party may present a response 

orally on the record. 

(d) Reply. Unless the ALJ orders 

otherwise, no reply to a response may 

be filed. 

(e) Effect of filing. Unless the ALJ 

orders otherwise, the filing of a motion 

does not stay the hearing process. 

(f) Ruling. The ALJ will rule on the 

motion as soon as practicable, either 

orally on the record or in writing. He or 

she may summarily deny any dilatory, 

repetitive, or frivolous motion. 

Prehearing Conferences and Discovery 

§ 1.640 What are the requirements for 

prehearing conferences? 

(a) Initial prehearing conference. The 

ALJ will conduct an initial prehearing 

conference with the parties at the time 

specified in the docketing notice under 

§ 1.630, on or about the 20th day after 

issuance of the referral notice under 

§ 1.625(c). 

(1) The initial prehearing conference 

will be used: 

(i) To identify, narrow, and clarify the 

disputed issues of material fact and 

exclude issues that do not qualify for 

review as factual, material, and 

disputed; 

(ii) To consider the parties’ motions 

for discovery under § 1.641 and to set a 

deadline for the completion of 

discovery; 

(iii) To discuss the evidence on which 

each party intends to rely at the hearing; 

(iv) To set the deadline for submission 

of written testimony under § 1.652; and 

(v) To set the date, time, and place of 

the hearing. 

(2) The initial prehearing conference 

may also be used: 

(i) To discuss limiting and grouping 

witnesses to avoid duplication; 

(ii) To discuss stipulations of fact and 

of the content and authenticity of 

documents; 

(iii) To consider requests that the ALJ 

take official notice of public records or 

other matters; 

(iv) To discuss the submission of 

written testimony, briefs, or other 

documents in electronic form; and 

(v) To consider any other matters that 

may aid in the disposition of the case. 

(b) Other conferences. The ALJ may in 

his or her discretion direct the parties to 

attend one or more other prehearing 

conferences, if consistent with the need 

to complete the hearing process within 

90 days. Any party may by motion 

request a conference. 

(c) Notice. The ALJ must give the 

parties reasonable notice of the time and 

place of any conference. A conference 

will ordinarily be held by telephone, 

unless the ALJ orders otherwise. 

(d) Preparation. (1) Each party’s 

representative must be fully prepared 

for a discussion of all issues properly 

before the conference, both procedural 

and substantive. The representative 

must be authorized to commit the party 

that he or she represents respecting 

those issues. 

(2) Before the date set for the initial 

prehearing conference, the parties’

representatives must make a good faith 

effort: 

(i) To meet in person, by telephone, 

or by other appropriate means; and 

(ii) To reach agreement on discovery 

and the schedule of remaining steps in 

the hearing process. 

(e) Failure to attend. Unless the ALJ 

orders otherwise, a party that fails to 

attend or participate in a conference, 

after being served with reasonable 

notice of its time and place, waives all 

objections to any agreements reached in 

69824 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

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; 

(2) Depositions as provided in 

paragraph (h) of this section; and 

(3) Requests for production of 

designated documents or tangible things 

or for entry on designated land for 

inspection or other purposes. 

(b) Criteria. Discovery may occur only 

as agreed to by the parties or as 

authorized by the ALJ in a written order 

or during a prehearing conference. The 

ALJ may authorize discovery only if the 

party requesting discovery 

demonstrates: 

(1) That the discovery will not 

unreasonably delay the hearing process; 

(2) That the information sought: 

(i) Will be admissible at the hearing 

or appears reasonably calculated to lead 

to the discovery of admissible evidence; 

(ii) Is not already in the license 

proceeding record or otherwise 

obtainable by the party; 

(iii) Is not cumulative or repetitious; 

and 

(iv) Is not privileged or protected from 

disclosure by applicable law; 

(3) That the scope of the discovery is 

not unduly burdensome; 

(4) That the method to be used is the 

least burdensome method available; 

(5) That any trade secrets or 

proprietary information can be 

adequately safeguarded; and 

(6) That the standards for discovery 

under paragraphs (f) through (h) of this 

section have been met, if applicable. 

(c) Motions. A party may initiate 

discovery: 

(1) Pursuant to an agreement of the 

parties; or 

(2) By filing a motion that: 

(i) Briefly describes the proposed 

method(s), purpose, and scope of the 

discovery; 

(ii) Explains how the discovery meets 

the criteria in paragraphs (b)(1) through 

(b)(6) of this section; and 

(iii) Attaches a copy of any proposed 

discovery request (written 

interrogatories, notice of deposition, or 

request for production of designated 

documents or tangible things or for 

entry on designated land). 

(d) Timing of motions. A party must 

file any discovery motion under 

paragraph (c)(2) of this section within 7 

days after issuance of the referral notice 

under § 1.625(c). 

(e) Objections. (1) A party must file 

any objections to a discovery motion or 

to specific portions of a proposed 

discovery request within 7 days after 

service of the motion. 

(2) An objection must explain how, in 

the objecting party’s view, the discovery 

sought does not meet the criteria in 

paragraphs (b)(1) through (b)(6) of this 

section. 

(f) Materials prepared for hearing. A 

party generally may not obtain 

discovery of documents and tangible 

things otherwise discoverable under 

paragraph (b) of this section if they were 

prepared in anticipation of or for the 

hearing by or for another party’s 

representative (including the party’s 

attorney, expert, or consultant). 

(1) If a party wants to discover such 

materials, it must show: 

(i) That it has substantial need of the 

materials in preparing its own case; and 

(ii) That the party is unable without 

undue hardship to obtain the substantial 

equivalent of the materials by other 

means. 

(2) In ordering discovery of such 

materials when the required showing 

has been made, the ALJ must protect 

against disclosure of the mental 

impressions, conclusions, opinions, or 

legal theories of an attorney. 

(g) Experts. Unless restricted by the 

ALJ, a party may discover any facts 

known or opinions held by an expert 

concerning any relevant matters that are 

not privileged. Such discovery will be 

permitted only if: 

(1) The expert is expected to be a 

witness at the hearing; or 

(2) The expert is relied on by another 

expert who is expected to be a witness 

at the hearing, and the party shows: 

(i) That it has a compelling need for 

the information; and 

(ii) That it cannot practicably obtain 

the information by other means. 

(h) Limitations on depositions. (1) A 

party may depose a witness only if the 

party shows that the witness: 

(i) Will be unable to attend the 

hearing because of age, illness, or other 

incapacity; or 

(ii) Is unwilling to attend the hearing 

voluntarily, and the party is unable to 

compel the witness’s attendance at the 

hearing by subpoena. 

(2) Paragraph (h)(1)(ii) of this section 

does not apply to any person employed 

by or under contract with the party 

seeking the deposition. 

(3) A party may depose a senior 

Department employee only if the party 

shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the deposition would not 

significantly interfere with the 

employee’s ability to perform his or her 

government duties. 

(i) Completion of discovery. All 

discovery must be completed within 25 

days after the initial prehearing 

conference, unless the ALJ sets a 

different deadline. 

§ 1.642 When must a party supplement or 

amend information it has previously 

provided? 

(a) Discovery. A party must promptly 

supplement or amend any prior 

response to a discovery request if it 

learns that the response: 

(1) Was incomplete or incorrect when 

made; or 

(2) Though complete and correct 

when made, is now incomplete or 

incorrect in any material respect. 

(b) Witnesses and exhibits. (1) Within 

5 days after the date set for completion 

of discovery, each party must file an 

updated version of the list of witnesses 

and exhibits required under §§ 1.621(c), 

1.622(c), or 1.624(c). 

(2) If a party wishes to include any 

new witness or exhibit on its updated 

list, it must provide an explanation of 

why it was not feasible for the party to 

include the witness or exhibit on its list 

under §§ 1.621(c), 1.622(c), or 1.624(c). 

(c) Failure to disclose. (1) A party that 

fails to disclose information required 

under §§ 1.621(c), 1.622(c), or 1.624(c), 

or paragraphs (a) or (b) of this section, 

will not be permitted to introduce as 

evidence at the hearing testimony from 

a witness or other information that it 

failed to disclose. 

(2) Paragraph (c)(1) of this section 

does not apply if the failure to disclose 

was substantially justified or is 

harmless. 

(3) Before or during the hearing, a 

party may object to the admission of 

evidence under paragraph (c)(1) of this 

section. 

(4) The ALJ will consider the 

following in determining whether to 

exclude evidence under paragraphs 

(c)(1) through (c)(3) of this section: 

(i) The prejudice to the objecting 

party; 

(ii) The ability of the objecting party 

to cure any prejudice; 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69825 

(iii) The extent to which presentation 

of the evidence would disrupt the 

orderly and efficient hearing of the case; 

(iv) The importance of the evidence; 

and 

(v) The reason for the failure to 

disclose, including any bad faith or 

willfulness regarding the failure. 

§ 1.643 What are the requirements for 

written interrogatories? 

(a) Motion. Except upon agreement of 

the parties, a party wishing to propound 

interrogatories must file a motion under 

§ 1.641(c). 

(b) ALJ order. During or promptly 

after the initial prehearing conference, 

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: 

(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. During or promptly 

after the initial prehearing conference, 

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)(3) of this section. 

(2) After the deposition has been 

taken, the person recording the 

deposition must: 

(i) Provide a copy of the videotape to 

any party that requests it, at the 

requesting party’s expense; and 

(ii) Attach to the videotape a 

statement identifying the case and the 

deponent and certifying the authenticity 

of the video recording. 

(h) Use of deposition. A deposition 

may be used at the hearing as provided 

in § 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. During or promptly 

after the initial prehearing conference, 

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 

69826 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

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 

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. 

§ 1.647 What are the requirements for 

subpoenas and witness fees? 

(a) Request for subpoena. (1) Except 

as provided in paragraph (a)(2) of this 

section, any party may file a motion 

requesting the ALJ to issue a subpoena 

to the extent authorized by law for the 

attendance of a person, the giving of 

testimony, or the production of 

documents or other relevant evidence 

during discovery or for the hearing. 

(2) A party may subpoena a senior 

Department employee only if the party 

shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the employee’s attendance 

would not significantly interfere with 

the ability to perform his or her 

government duties. 

(b) Service. (1) A subpoena may be 

served by any person who is not a party 

and is 18 years of age or older. 

(2) Service must be made by hand 

delivering a copy of the subpoena to the 

person named therein. 

(3) The person serving the subpoena 

must: 

(i) Prepare a certificate of service 

setting forth: 

(A) The date, time, and manner of 

service; or 

(B) The reason for any failure of 

service; and 

(ii) Swear to or affirm the certificate, 

attach it to a copy of the subpoena, and 

return it to the party on whose behalf 

the subpoena was served. 

(c) Witness fees. (1) A party who 

subpoenas a witness who is not a party 

must pay him or her the same fees and 

mileage expenses that are paid 

witnesses in the district courts of the 

United States. 

(2) A witness who is not a party and 

who attends a deposition or hearing at 

the request of any party without having 

been subpoenaed to do so is entitled to 

the same fees and mileage expenses as 

if he or she had been subpoenaed. 

However, this paragraph does not apply 

to federal employees who are called as 

witnesses by the Forest Service or 

another Department. 

(d) Motion to quash. (1) A person to 

whom a subpoena is directed may 

request by motion that the ALJ quash or 

modify the subpoena. 

(2) The motion must be filed: 

(i) Within 5 days after service of the 

subpoena; or 

(ii) At or before the time specified in 

the subpoena for compliance, if that is 

less than 5 days after service of the 

subpoena. 

(3) The ALJ may quash or modify the 

subpoena if it: 

(i) Is unreasonable; 

(ii) Requires evidence during 

discovery that is not discoverable; or 

(iii) Requires evidence during a 

hearing that is privileged or irrelevant. 

(e) Enforcement. For good cause 

shown, the ALJ may apply to the 

appropriate United States District Court 

for the issuance of an order compelling 

the appearance and testimony of a 

witness or the production of evidence as 

set forth in a subpoena that has been 

duly issued and served. 

Hearing, Briefing, and Decision 

§ 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 15 days after 

the date set for completion of discovery. 

(b) On motion by a party or on the 

ALJ’s initiative, the ALJ may change the 

date, time, or place of the hearing if he 

or she finds: 

(1) That there is good cause for the 

change; and 

(2) That the change will not unduly 

prejudice the parties and witnesses. 

§ 1.651 What are the parties’ rights during 

the hearing? 

Consistent with the provisions of this 

subpart, each party has the following 

rights during the hearing, as necessary 

to assure full and accurate disclosure of 

the facts: 

(a) To present direct and rebuttal 

evidence; 

(b) To make objections, motions, and 

arguments; and 

(c) To cross-examine witnesses and to 

conduct re-direct and re-cross 

examination as permitted by the ALJ. 

§ 1.652 What are the requirements for 

presenting testimony? 

(a) Written direct testimony. Unless 

otherwise ordered by the ALJ, all direct 

hearing testimony must be prepared and 

submitted in written form. 

(1) Prepared written testimony must: 

(i) Have line numbers inserted in the 

left-hand margin of each page; 

(ii) Be authenticated by an affidavit or 

declaration of the witness; 

(iii) Be filed within 5 days after the 

date set for completion of discovery, 

unless the ALJ sets a different deadline; 

and 

(iv) Be offered as an exhibit during the 

hearing. 

(2) Any witness submitting written 

testimony must be available for 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. 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69827 

(b) Admissibility. (1) No part of a 

deposition will be included in the 

hearing record, unless received in 

evidence by the ALJ. 

(2) The ALJ will exclude from 

evidence any question and response to 

which an objection: 

(i) Was noted at the taking of the 

deposition; and 

(ii) Would have been sustained if the 

witness had been personally present 

and testifying at a hearing. 

(3) If a party offers only part of a 

deposition in evidence: 

(i) An adverse party may require the 

party to introduce any other part that 

ought in fairness to be considered with 

the part introduced; and 

(ii) Any other party may introduce 

any other parts. 

(c) Videotaped deposition. If the 

deposition was recorded on videotape 

and is admitted into evidence, relevant 

portions will be played during the 

hearing and transcribed into the record 

by the reporter. 

§ 1.654 What are the requirements for 

exhibits, official notice, and stipulations? 

(a) General. (1) Except as provided in 

paragraphs (b) through (e) of this 

section, any material offered in 

evidence, other than oral testimony, 

must be offered in the form of an 

exhibit. 

(2) Each exhibit offered by a party 

must be marked for identification. 

(3) Any party who seeks to have an 

exhibit admitted into evidence must 

provide: 

(i) The original of the exhibit to the 

reporter, unless the ALJ permits the 

substitution of a copy; and 

(ii) A copy of the exhibit to the ALJ. 

(b) Material not offered. If a document 

offered as an exhibit contains material 

not offered as evidence: 

(1) The party offering the exhibit 

must: 

(i) Designate the matter offered as 

evidence; 

(ii) Segregate and exclude the material 

not offered in evidence, to the extent 

practicable; and 

(iii) Provide copies of the entire 

document to the other parties appearing 

at the hearing. 

(2) The ALJ must give the other 

parties an opportunity to inspect the 

entire document and offer in evidence 

any other portions of the document. 

(c) Official notice. (1) At the request 

of any party at the hearing, the ALJ may 

take official notice of any matter of 

which the courts of the United States 

may take judicial notice, including the 

public records of any Department party. 

(2) The ALJ must give the other 

parties appearing at the hearing an 

opportunity to show the contrary of an 

officially noticed fact. 

(3) Any party requesting official 

notice of a fact after the conclusion of 

the hearing must show good cause for 

its failure to request official notice 

during the hearing. 

(d) Stipulations. (1) The parties may 

stipulate to any relevant facts or to the 

authenticity of any relevant documents. 

(2) If received in evidence at the 

hearing, a stipulation is binding on the 

stipulating parties. 

(3) A stipulation may be written or 

made orally at the hearing. 

§ 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 

shall 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 Forest Service on an 

expedited basis. 

(2) Each party must pay the reporter 

for any copies of the transcript obtained 

by that party. 

(b) Transcript Corrections. (1) Any 

party may file a motion proposing 

corrections to the transcript. The motion 

must be filed within 5 days after receipt 

of the transcript, unless the ALJ sets a 

different deadline. 

(2) Unless a party files a timely 

motion under paragraph (b)(1) of this 

section, the transcript will be presumed 

to be correct and complete, except for 

obvious typographical errors. 

(3) As soon as practicable after the 

close of the hearing and after 

consideration of any motions filed 

under paragraph (b)(1) of this section, 

the ALJ will issue an order making any 

corrections to the transcript that the ALJ 

finds are warranted. 

§ 1.657 What is the standard of proof? 

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 10 days after 

the close of the hearing, unless the ALJ 

sets a different deadline. 

(2) A party may file a reply brief only 

if requested by the ALJ. The deadline for 

filing a reply brief, if any, will be set by 

the ALJ. 

(3) The ALJ may limit the length of 

the briefs to be filed under this section. 

(b) Content. (1) An initial brief must 

include: 

(i) A concise statement of the case; 

(ii) A separate section containing 

proposed findings regarding the issues 

of material fact, with supporting 

citations to the hearing record; 

(iii) Arguments in support of the 

party’s position; and 

(iv) Any other matter required by the 

ALJ. 

(2) A reply brief, if requested by the 

ALJ, must be limited to any issues 

identified by the ALJ. 

(c) Form. (1) An exhibit admitted in 

evidence or marked for identification in 

the record may not be reproduced in the 

brief. 

(i) Such an exhibit may be 

reproduced, within reasonable limits, in 

an appendix to the brief. 

(ii) Any pertinent analysis of an 

exhibit may be included in a brief. 

(2) If a brief exceeds 20 pages, it must 

contain: 

(i) A table of contents and of points 

made, with page references; and 

(ii) An alphabetical list of citations to 

legal authority, with page references. 

§ 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 

69828 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

(2) 90 days after issuance of the 

referral notice under § 1.625(c), 43 CFR 

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

(b) Content. (1) The decision must 

contain: 

(i) Findings of fact on all disputed 

issues of material fact; 

(ii) Conclusions of law necessary to 

make the findings of fact (such as 

rulings on materiality and on the 

admissibility of evidence); and 

(iii) Reasons for the findings and 

conclusions. 

(2) The ALJ may adopt any of the 

findings of fact proposed by one or more 

of the parties. 

(3) The decision will not contain 

conclusions as to whether any 

preliminary condition or prescription 

should be adopted, modified, or 

rejected, or whether any proposed 

alternative should be adopted or 

rejected. 

(c) Service. Promptly after issuing his 

or her decision, the ALJ must: 

(1) Serve the decision on each party 

to the hearing; and 

(2) Forward a copy of the decision to 

FERC, along with the complete hearing 

record, for inclusion in the license 

proceeding record. 

(d) Finality. The ALJ’s decision under 

this section will be final, with respect to 

the disputed issues of material fact, for 

any Department involved in the hearing. 

To the extent the ALJ’s decision forms 

the basis for any condition or 

prescription subsequently included in 

the license, it may be subject to judicial 

review under 16 U.S.C. 825l(b). 

Alternatives Process 

§ 1.670 How must documents be filed and 

served under §§ 1.670 through 1.673? 

(a) Filing. (1) For the alternatives 

process, documents 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 section must be served at the 

same time the document is delivered or 

sent for filing. A complete copy of the 

document must be served on each 

license party and FERC, using: 

(i) One of the methods of service in 

§ 1.613(c); or 

(ii) Regular mail. 

(2) The provisions of § 1.613 (d) and 

(e) regarding acknowledgment and 

certificate of service apply to service 

under this section. 

§ 1.671 How do I propose an alternative? 

(a) General. To propose an alternative, 

you must: 

(1) Be a license party; and 

(2) File a written proposal with NFS 

within 30 days after the deadline for the 

Forest Service to file preliminary 

conditions with FERC. 

(b) Content. Your proposal must 

include: 

(1) A description of the alternative, in 

an equivalent level of detail to the 

Forest Service’s preliminary condition; 

(2) An explanation of how the 

alternative will provide for the adequate 

protection and utilization of the 

reservation; 

(3) An explanation of how the 

alternative, as compared to the 

preliminary condition, will: 

(i) Cost significantly less to 

implement; or 

(ii) Result in improved operation of 

the project works for electricity 

production; 

(4) An explanation of how the 

alternative will affect: 

(i) Energy supply, distribution, cost, 

and use; 

(ii) Flood control; 

(iii) Navigation; 

(iv) Water supply; 

(v) Air quality; and 

(vi) Other aspects of environmental 

quality; and 

(5) Specific citations to any scientific 

studies, literature, and other 

documented information relied on to 

support your proposal, including any 

assumptions you are making (e.g., 

regarding the cost of energy or the rate 

of inflation). If any such document is 

not already in the license proceeding 

record, you must provide a copy with 

the proposal. 

§ 1.672 What will the Forest Service do 

with a proposed alternative? 

If any license party proposes an 

alternative to a preliminary condition 

under § 1.671(a)(1), the Forest Service 

must do the following within 60 days 

after the deadline for filing comments to 

FERC’s NEPA document under 18 CFR 

5.25(c): 

(a) Analyze the alternative under 

§ 1.673; and 

(b) File with FERC: 

(1) Any condition that the Forest 

Service adopts as its modified 

condition; and 

(2) Its analysis of the modified 

condition and any proposed alternatives 

under § 1.673(c). 

§ 1.673 How will the Forest Service 

analyze a proposed alternative and 

formulate its modified condition? 

(a) In deciding whether to adopt a 

proposed alternative, the Forest Service 

must consider evidence and supporting 

material provided by any license party 

or otherwise available to the Forest 

Service, including: 

(1) Any evidence on the 

implementation costs or operational 

impacts for electricity production of the 

proposed alternative; 

(2) Any comments received on the 

Forest Service’s preliminary condition; 

(3) Any ALJ decision on disputed 

issues of material fact issued under 

§ 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. 

(b) The Forest Service must adopt a 

proposed alternative if the Forest 

Service determines, based on substantial 

evidence provided by any license party 

or otherwise available to the Forest 

Service, that the alternative: 

(1) Will, as compared to the Forest 

Service’s preliminary condition: 

(i) Cost significantly less to 

implement; or 

(ii) Result in improved operation of 

the project works for electricity 

production; and 

(2) Will provide for the adequate 

protection and utilization of the 

reservation. 

(c) When the Forest Service files with 

FERC the condition that the Forest 

Service adopts as its modified condition 

under §§ 1.672(b), it must also file: 

(1) A written statement explaining: 

(i) The basis for the adopted 

condition; and 

(ii) If the Forest Service is not 

adopting any alternative, its reasons for 

not doing so; and 

(2) Any study, data, and other factual 

information relied on that is not already 

part of the licensing proceeding record. 

(d) The written statement under 

paragraph (c)(1) of this section must 

demonstrate that the Forest Service gave 

equal consideration to the effects of the 

condition adopted and any alternative 

not adopted on: 

(1) Energy supply, distribution, cost, 

and use; 

(2) Flood control; 

(3) Navigation; 

(4) Water supply; 

(5) Air quality; and 

(6) Preservation of other aspects of 

environmental quality. 

§ 1.674 Has OMB approved the information 

collection provisions of §§ 1.670 through 

1.673? 

Yes. This rule contains provisions 

that would collect information from the 

public. It therefore requires approval by 

the Office of Management and Budget 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69829 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. 

(PRA). According to the PRA, a Federal 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a collection of information unless it 

displays a currently valid OMB control 

number that indicates OMB approval. 

OMB has reviewed the information 

collection in this rule and approved it 

under OMB control number 1094–0001. 

Department of the Interior 

43 CFR Subtitle A 

■ 2. The Department of the Interior adds 

part 45, title 43, to read as follows: 

PART 45—CONDITIONS AND 

PRESCRIPTIONS IN FERC 

HYDROPOWER LICENSES 

Subpart A—General Provisions 

Sec. 

45.1 What is the purpose of this part, and 

to what license proceedings does it 

apply? 

45.2 What terms are used in this part? 

45.3 How are time periods computed? 

45.4 What deadlines apply to pending 

applications? 

Subpart B—Hearing Process 

Representatives 

45.10 Who may represent a party, and what 

requirements apply to a representative? 

Document Filing and Service 

45.11 What are the form and content 

requirements for documents under this 

subpart? 

45.12 Where and how must documents be 

filed? 

45.13 What are the requirements for service 

of documents? 

Initiation of Hearing Process 

45.20 What supporting information must a 

bureau provide with its preliminary 

conditions or prescriptions? 

45.21 How do I request a hearing? 

45.22 How do I file a notice of intervention 

and response? 

45.23 When will hearing requests be 

consolidated? 

45.24 How will the bureau respond to any 

hearing requests? 

45.25 What will DOI do with any hearing 

requests? 

45.26 What regulations apply to a case 

referred for a hearing? 

General Provisions Related to Hearings 

45.30 What will the Hearings Division do 

with a case referral? 

45.31 What are the powers of the ALJ? 

45.32 What happens if the ALJ becomes 

unavailable? 

45.33 Under what circumstances may the 

ALJ be disqualified? 

45.34 What is the law governing ex parte 

communications? 

45.35 What are the requirements for 

motions? 

Prehearing Conferences and Discovery 

45.40 What are the requirements for 

prehearing conferences? 

45.41 How may parties obtain discovery of 

information needed for the case? 

45.42 When must a party supplement or 

amend information it has previously 

provided? 

45.43 What are the requirements for written 

interrogatories? 

45.44 What are the requirements for 

depositions? 

45.45 What are the requirements for 

requests for documents or tangible things 

or entry on land? 

45.46 What sanctions may the ALJ impose 

for failure to comply with discovery? 

45.47 What are the requirements for 

subpoenas and witness fees? 

Hearing, Briefing, and Decision 

45.50 When and where will the hearing be 

held? 

45.51 What are the parties’ rights during the 

hearing? 

45.52 What are the requirements for 

presenting testimony? 

45.53 How may a party use a deposition in 

the hearing? 

45.54 What are the requirements for 

exhibits, official notice, and stipulations? 

45.55 What evidence is admissible at the 

hearing? 

45.56 What are the requirements for 

transcription of the hearing? 

45.57 What is the standard of proof? 

45.58 When will the hearing record close? 

45.59 What are the requirements for 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 What will the bureau do with a 

proposed alternative? 

45.73 How will the bureau analyze a 

proposed alternative and formulate its 

modified condition or prescription? 

45.74 Has OMB approved the information 

collection provisions of this subpart? 

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

Subpart A—General Provisions 

§ 45.1 What is the purpose of this part, and 

to what license proceedings does it apply? 

(a) Hearing process. (1) The 

regulations in subparts A and B of this 

part contain rules of practice and 

procedure applicable to hearings on 

disputed issues of material fact with 

respect to mandatory conditions and 

prescriptions that the Department of the 

Interior (DOI) may develop for inclusion 

in a hydropower license issued under 

subchapter I of the Federal Power Act 

(FPA), 16 U.S.C. 791 et seq. The 

authority to develop these conditions 

and prescriptions is granted by FPA 

sections 4(e) and 18, 16 U.S.C. 797(e) 

and 811, which authorize the Secretary 

of the Interior to condition hydropower 

licenses issued by the Federal Energy 

Regulatory Commission (FERC) and to 

prescribe fishways. 

(2) The hearing process under this 

part does not apply to recommendations 

that DOI may submit to FERC under 

FPA section 10(a) or (j), 16 U.S.C. 

803(a), (j). 

(3) The FPA also grants the 

Department of Agriculture the authority 

to develop mandatory conditions, and 

the Department of Commerce the 

authority to develop mandatory 

prescriptions, for inclusion in a 

hydropower license. Where DOI and 

either or both of these other 

Departments develop conditions or 

prescriptions to be included in the same 

hydropower license and where the 

Departments agree to consolidate the 

hearings under § 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) Reservation of authority. Where 

DOI notifies FERC that it is reserving its 

authority to develop one or more 

conditions or prescriptions during the 

term of the license, the hearing and 

alternatives processes under this part for 

such conditions or prescriptions will be 

available if and when DOI exercises its 

reserved authority. DOI will consult 

with FERC and notify the license parties 

regarding how to initiate the hearing 

process and alternatives process at that 

time. 

(d) Applicability. (1) This part applies 

to any hydropower license proceeding 

for which the license has not been 

issued as of November 17, 2005 and for 

which one or more preliminary 

69830 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

conditions, conditions, preliminary 

prescriptions, or prescriptions have 

been or are filed with FERC. 

(2) If DOI has already filed one or 

more preliminary conditions, 

conditions, preliminary prescriptions, 

or prescriptions as of November 17, 

2005, the special applicability 

provisions of § 45.4 also apply. 

§ 45.2 What terms are used in this part? 

As used in this part: 

ALJ means an administrative law 

judge appointed under 5 U.S.C. 3105 

and assigned to preside over the hearing 

process under subpart B of this part. 

Alternative means a condition or 

prescription that a license party other 

than a bureau or Department develops 

as an alternative to a preliminary 

condition or prescription from a bureau 

or Department, under FPA sec. 33, 16 

U.S.C. 823d. 

Bureau means any of the following 

organizations within DOI that develops 

a preliminary condition or prescription: 

the Bureau of Indian Affairs, Bureau of 

Land Management, Bureau of 

Reclamation, Fish and Wildlife Service, 

or National Park Service. 

Condition means a condition under 

FPA sec. 4(e), 16 U.S.C. 797(e), for the 

adequate protection and utilization of a 

reservation. 

Day means a calendar day. 

Department means the Department of 

Agriculture, Department of Commerce, 

or Department of the Interior. 

Discovery means a prehearing process 

for obtaining facts or information to 

assist a party in preparing or presenting 

its case. 

DOI means the Department of the 

Interior, including any bureau, unit, or 

office of the Department, whether in 

Washington, DC, or in the field. 

Ex parte communication means an 

oral or written communication to the 

ALJ that is made without providing all 

parties reasonable notice and an 

opportunity to participate. 

FERC means the Federal Energy 

Regulatory Commission. 

FPA means the Federal Power Act, 16 

U.S.C. 791 et seq. 

Hearings Division means the 

Departmental Cases Hearings Division, 

Office of Hearings and Appeals, 

Department of the Interior, 139 E. South 

Temple, Suite 600, Salt Lake City, Utah 

84111, telephone 801–524–5344, 

facsimile number 801–524–5539. 

Intervention means a process by 

which a person who did not request a 

hearing under § 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 parts 4 or 5. 

Material fact means a fact that, if 

proved, may affect a Department’s 

decision whether to affirm, modify, or 

withdraw any condition or prescription. 

NEPA document means an 

environmental assessment or 

environmental impact statement issued 

to comply with the requirements of the 

National Environmental Policy Act of 

1969, 42 U.S.C. 4321 et seq. 

OEPC means the Office of 

Environmental Policy and Compliance, 

Department of the Interior, 1849 C 

Street, NW., Mail Stop 2342, 

Washington, DC 20240, telephone 202–

208–3891, facsimile number 202–208–

6970. 

Party means, with respect to DOI’s 

hearing process under subpart B of this 

part: 

(1) A license party that has filed a 

timely request for a hearing under: 

(i) Section 45.21; or 

(ii) Either 7 CFR 1.621 or 50 CFR 

221.21, with respect to a hearing process 

consolidated under § 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 that has filed a 

preliminary condition or prescription; 

and 

(4) Any other Department that has 

filed a preliminary condition or 

prescription, with respect to a hearing 

process consolidated under § 45.23. 

Person means an individual; a 

partnership, corporation, association, or 

other legal entity; an unincorporated 

organization; and any federal, state, 

tribal, county, district, territorial, or 

local government or agency. 

Preliminary condition or prescription 

means a preliminary condition or 

prescription filed by a Department with 

FERC under 18 CFR 4.34(b), 4.34(i), or 

5.22(a) for potential inclusion in a 

hydropower license. 

Prescription means a fishway 

prescribed under FPA sec. 18, 16 U.S.C. 

811, to provide for the safe, timely, and 

effective passage of fish. 

Representative means a person who: 

(1) Is authorized by a party to 

represent the party in a hearing process 

under this subpart; and 

(2) Has filed an appearance under 

§ 45.10. 

Reservation has the same meaning as 

the term ‘‘reservations’’ in FPA sec. 3(2), 

16 U.S.C. 796(2). 

Secretary means the Secretary of the 

Interior or his or her designee. 

Senior Department employee has the 

same meaning as the term ‘‘senior 

employee’’ in 5 CFR 2637.211(a). 

You refers to a party other than a 

Department. 

§ 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 § 45.24, 

or any document under subpart C of this 

part. 

(2) An extension of time to file any 

other document under subpart B of this 

part may be granted only upon a 

showing of good cause. 

(i) To request an extension of time, a 

party must file a motion under § 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 pending 

applications? 

(a) Applicability. (1) This section 

applies to any case in which a bureau 

has filed a preliminary condition, 

condition, preliminary prescription, or 

prescription with FERC before 

November 17, 2005 and FERC has not 

issued a license as of that date. 

(2) The deadlines in this section will 

apply in such a case, in lieu of any 

inconsistent deadline in other sections 

of this part. 

(b) Hearing process. (1) Any request 

for a hearing under § 45.21 must be filed 

with OEPC by December 19, 2005. 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69831 

(2) Any notice of intervention and 

response under § 45.22 must be filed by 

January 3, 2006. 

(3) Upon receipt of a hearing request 

under paragraph (b)(1) of this section, 

the bureau must do the following by 

March 17, 2006: 

(i) Comply with the requirements of 

§ 45.23; 

(ii) Determine jointly with any other 

bureau or Department that has received 

a hearing request, after consultation 

with FERC, a time frame for the hearing 

process and a corresponding deadline 

for the bureau to file an answer under 

§ 45.24; and 

(iii) Issue a notice to each party 

specifying the time frame for the hearing 

process, including the deadline for the 

bureau to file an answer. 

(c) Alternatives process. (1) Any 

alternative under § 45.71 must be filed 

with OEPC by December 19, 2005. 

(2) Upon receipt of an alternative 

under paragraph (c)(1) of this section, if 

no hearing request is filed under 

paragraph (b)(1) of this section, the 

bureau must do the following by 

February 15, 2006: 

(i) Determine jointly with any other 

bureau or Department that has received 

a related alternative, after consultation 

with FERC, a time frame for the filing 

of a modified condition or prescription 

under § 45.72(b); and 

(ii) Issue a notice to the license party 

that has submitted the alternative, 

specifying the time frame for the filing 

of a modified condition or prescription. 

(3) Upon receipt of an alternative 

under paragraph (c)(1) of this section, if 

a hearing request is also filed under 

paragraph (b)(1) of this section, the 

bureau will follow the provisions of 

paragraph (b)(3) of this section. 

Subpart B—Hearing Process 

Representatives 

§ 45.10 Who may represent a party, and 

what requirements apply to a 

representative? 

(a) Individuals. A party who is an 

individual may either represent himself 

or herself in the hearing process under 

this subpart or authorize an attorney to 

represent him or her. 

(b) Organizations. A party that is an 

organization or other entity may 

authorize one of the following to 

represent it: 

(1) An attorney; 

(2) A partner, if the entity is a 

partnership; 

(3) An officer or full-time employee, 

if the entity is a corporation, 

association, or unincorporated 

organization; 

(4) A receiver, administrator, 

executor, or similar fiduciary, if the 

entity is a receivership, trust, or estate; 

or 

(5) An elected or appointed official or 

an employee, if the entity is a federal, 

state, tribal, county, district, territorial, 

or local government or component. 

(c) Appearance. A representative 

must file a notice of appearance. The 

notice must: 

(1) Meet the form and content 

requirements for documents under 

§ 45.11; 

(2) Include the name and address of 

the person on whose behalf the 

appearance is made; 

(3) If the representative is an attorney, 

include a statement that he or she is a 

member in good standing of the bar of 

the highest court of a state, the District 

of Columbia, or any territory or 

commonwealth of the United States 

(identifying which one); and 

(4) If the representative is not an 

attorney, include a statement explaining 

his or her authority to represent the 

entity. 

(d) Disqualification. The ALJ may 

disqualify any representative for 

misconduct or other good cause. 

Document Filing and Service 

§ 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; 

(3) Be clearly typewritten, printed, or 

otherwise reproduced by a process that 

yields legible and permanent copies; 

(4) Use 10 point font size or larger; 

(5) Be double-spaced except for 

footnotes and long quotations, which 

may be single-spaced; 

(6) Have margins of at least 1 inch; 

and 

(7) Be bound on the left side, if 

bound. 

(b) Caption. Each document filed 

under this subpart must begin with a 

caption that sets forth: 

(1) The name of the case under this 

subpart and the docket number, if one 

has been assigned; 

(2) The name and docket number of 

the license proceeding to which the case 

under this subpart relates; and 

(3) A descriptive title for the 

document, indicating the party for 

whom it is filed and the nature of the 

document. 

(c) Signature. The original of each 

document filed under this subpart must 

be signed by the representative of the 

person for whom the document is filed. 

The signature constitutes a certification 

by the representative that he or she has 

read the document; that to the best of 

his or her knowledge, information, and 

belief, the statements made in the 

document are true; and that the 

document is not being filed for the 

purpose of causing delay. 

(d) Contact information. Below the 

representative’s signature, the document 

must provide the representative’s name, 

mailing address, street address (if 

different), telephone number, facsimile 

number (if any), and electronic mail 

address (if any). 

§ 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 § 45.25, 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 § 45.25. After that date, 

any documents must be filed with: 

(i) The Hearings Division, if DOI will 

be conducting the hearing. The Hearings 

Division’s address, telephone number, 

and facsimile number are set forth in 

§ 45.2; or 

(ii) The hearings component of or 

used by another Department, if that 

Department will be conducting the 

hearing under § 45.25. The name, 

address, telephone number, and 

facsimile number of the appropriate 

hearings component will be provided in 

the referral notice from OEPC. 

(b) Method of filing. (1) A document 

must be filed with the appropriate office 

under paragraph (a) of this section using 

one of the following methods: 

(i) By hand delivery of the original 

document; 

(ii) By sending the original document 

by express mail or courier service for 

delivery on the next business day; or 

(iii) By sending the document by 

facsimile if: 

(A) The document is 20 pages or less, 

including all attachments; 

(B) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(C) The original of the document is 

sent by regular mail on the same day. 

(2) Parties are encouraged, but not 

required, to supplement any filing by 

providing the appropriate office with an 

69832 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

electronic copy of the document on 

diskette or compact disc. 

(c) Date of filing. A document under 

this subpart is considered filed on the 

date it is received. However, any 

document received after 5 p.m. at the 

place where the filing is due is 

considered filed on the next regular 

business day. 

(d) Nonconforming documents. If any 

document submitted for filing under 

this subpart does not comply with the 

requirements of this subpart or any 

applicable order, it may be rejected. If 

the defect is minor, the party may be 

notified of the defect and given a chance 

to correct it. 

§ 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 served 

on FERC and each license party, using 

one of the methods of service in 

paragraph (c) of this section. 

(2) A complete copy of any notice of 

intervention and response under § 45.22 

must be: 

(i) Served on 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) Sent to any other license party 

using regular mail. 

(3) A complete copy of any other filed 

document must be served on each party, 

using one of the methods of service in 

paragraph (c) of this section. 

(b) Documents issued by the Hearings 

Division or ALJ. A complete copy of any 

notice, order, decision, or other 

document issued by the Hearings 

Division or the ALJ under this subpart 

must be served on each party, using one 

of the methods of service in paragraph 

(c) of this section. 

(c) Method of service. Service must be 

accomplished by one of the following 

methods: 

(1) By hand delivery of the document; 

(2) By sending the document by 

express mail or courier service for 

delivery on the next business day; or 

(3) By sending the document by 

facsimile if: 

(i) The document is 20 pages or less, 

including all attachments; 

(ii) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(iii) The document is sent by regular 

mail on the same day. 

(d) Certificate of service. A certificate 

of service must be attached to each 

document filed under this subpart. The 

certificate must be signed by the party’s 

representative and include the following 

information: 

(1) The name, address, and other 

contact information of each party’s 

representative on whom the document 

was served; 

(2) The means of service, including 

information indicating compliance with 

paragraph (c)(3) or (c)(4) of this section, 

if applicable; and 

(3) The date of service. 

Initiation of Hearing Process 

§ 45.20 What supporting information must 

a bureau provide with its preliminary 

conditions or prescriptions? 

(a) Supporting information. (1) When 

any bureau files a preliminary condition 

or prescription with FERC, it must 

include a rationale for the condition or 

prescription and an index to the 

bureau’s administrative record that 

identifies all documents relied upon. 

(2) If any of the documents relied 

upon are not already in the license 

proceeding record, the bureau must: 

(i) File them with FERC at the time it 

files the preliminary condition or 

prescription; 

(ii) Provide copies to the license 

applicant; and 

(iii) In the case of a condition 

developed by the Bureau of Indian 

Affairs, provide copies to the affected 

tribe. 

(b) Service. In addition to serving a 

copy of its preliminary condition or 

prescription on each license party, the 

bureau must provide a copy to OEPC if 

and when a request for a hearing is filed 

with respect to the preliminary 

condition or prescription. 

§ 45.21 How do I request a hearing? 

(a) General. To request a hearing on 

disputed issues of material fact with 

respect to any condition or prescription 

filed by a bureau, you must: 

(1) Be a license party; and 

(2) File with OEPC a written request 

for a hearing within 30 days after the 

deadline for the Departments to file 

preliminary conditions or prescriptions 

with FERC. 

(b) Content. Your hearing request 

must contain: 

(1) A numbered list of the factual 

issues that you allege are in dispute, 

each stated in a single, concise sentence; 

and 

(2) The following information with 

respect to each issue: 

(i) The specific factual statements 

made or relied upon by the bureau 

under § 45.20(a) that you dispute; 

(ii) The basis for your opinion that 

those factual statements are unfounded 

or erroneous; 

(iii) The basis for your opinion that 

any factual dispute is material; and 

(iv) With respect to any scientific 

studies, literature, and other 

documented information supporting 

your opinions under paragraphs 

(b)(2)(ii) and (b)(2)(iii) of this section, 

specific citations to the information 

relied upon. If any such document is not 

already in the license proceeding 

record, you must provide a copy with 

the request. 

(c) Witnesses and exhibits. Your 

hearing request must also list the 

witnesses and exhibits that you intend 

to present at the hearing, other than 

solely for impeachment purposes. 

(1) For each witness listed, you must 

provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony. 

(2) For each exhibit listed, you must 

specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b)(2) of this section 

may not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

§ 45.22 How do I file a notice of 

intervention and response? 

(a) General. (1) To intervene as a party 

to the hearing process, you must: 

(i) Be a license party; and 

(ii) File with OEPC a notice of 

intervention and a written response to 

any request for a hearing within 15 days 

after the date of service of the request 

for a hearing. 

(2) A license party filing a notice of 

intervention and response may not raise 

issues of material fact beyond those 

raised in the hearing request. 

(b) Content. In your notice of 

intervention and response you must 

explain your position with respect to 

the issues of material fact raised in the 

hearing request under § 45.21(b). 

(1) If you agree with the information 

provided by the bureau under § 45.20(a) 

or by the requester under § 45.21(b), 

your response may refer to the bureau’s 

explanation or the requester’s hearing 

request for support. 

(2) If you wish to rely on additional 

information or analysis, your response 

must provide the same level of detail 

with respect to the additional 

information or analysis as required 

under § 45.21(b). 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69833 

(c) Witnesses and exhibits. Your 

response and notice must also list the 

witnesses and exhibits that you intend 

to present at the hearing, other than 

solely for impeachment purposes. 

(1) For each witness listed, you must 

provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony; and 

(2) For each exhibit listed, you must 

specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b) of this section may 

not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

§ 45.23 When will hearing requests be 

consolidated? 

(a) Initial Department coordination. 

Any bureau that has received a copy of 

a hearing request must contact the other 

bureaus and Departments within 10 

days after the deadline for filing hearing 

requests under § 45.21 and determine: 

(1) Whether any of the other bureaus 

or Departments has also filed a 

preliminary condition or prescription 

relating to the license with FERC; and 

(2) If so, whether the other bureau or 

Department has also received a hearing 

request with respect to the preliminary 

condition or prescription. 

(b) Decision on consolidation. Within 

25 days after the deadline for filing 

hearing requests under § 45.21, any 

bureau or Department that has received 

a hearing request must: 

(1) Consult with any other bureau or 

Department that has also received a 

hearing request; and 

(2) Decide jointly with the other 

bureau or Department: 

(i) Whether to consolidate the cases 

for hearing under paragraphs (c)(3)(ii) 

through (c)(3)(iv) of this section; and 

(ii) If so, which Department will 

conduct the hearing on their behalf. 

(c) Criteria. Cases will or may be 

consolidated as follows: 

(1) All hearing requests with respect 

to any conditions from the same 

Department will be consolidated for 

hearing. 

(2) All hearing requests with respect 

to any prescriptions from the same 

Department will be consolidated for 

hearing. 

(3) Any or all of the following may be 

consolidated for hearing, if the bureaus 

and Departments involved determine 

that there are common issues of material 

fact or that consolidation is otherwise 

appropriate: 

(i) Two or more hearing requests with 

respect to any condition and any 

prescription from the same Department; 

(ii) Two or more hearing requests with 

respect to conditions from different 

Departments; 

(iii) Two or more hearing requests 

with respect to prescriptions from 

different Departments; or 

(iv) Two or more hearing requests 

with respect to any condition from one 

Department and any prescription from 

another Department. 

§ 45.24 How will the bureau respond to 

any hearing requests? 

(a) General. Within 45 days after the 

deadline in § 45.21(a)(2), 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. 

(c) Witnesses and exhibits. The 

bureau’s answer must also list the 

witnesses and exhibits that it intends to 

present at the hearing, other than solely 

for impeachment purposes. 

(1) For each witness listed, the bureau 

must provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony. 

(2) For each exhibit listed, the bureau 

must specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b)(1) of this section 

may not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

(e) Notice in lieu of answer. If the 

bureau elects not to file an answer to a 

hearing request: 

(1) The bureau is deemed to agree that 

the issues listed by the requester are 

factual, material, and in dispute; 

(2) The bureau may file a list of 

witnesses and exhibits with respect to 

the request only as provided in 

§ 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. 

§ 45.25 What will DOI do with any hearing 

requests? 

(a) Case referral. Within 5 days after 

receipt of the bureau’s answer, OEPC 

will refer the case for a hearing as 

follows: 

(1) If the hearing is to be conducted 

by DOI, OEPC will refer the case to the 

Hearings Division. 

(2) If the hearing is to be conducted 

by another Department, OEPC will refer 

the case to the hearings component used 

by that Department. 

(b) Content. The case referral will 

consist of the following: 

(1) A copy of any preliminary 

condition or prescription under § 45.20; 

(2) The original of any hearing request 

under § 45.21; 

(3) The original of any notice of 

intervention and response under 

§ 45.22; 

(4) The original of any answer under 

§ 45.24; and 

(5) An original referral notice under 

paragraph (c) of this section. 

(c) Notice. At the time OEPC refers the 

case for a hearing, it must provide a 

referral notice that contains the 

following information: 

(1) The name, address, telephone 

number, and facsimile number of the 

Department hearings component that 

will conduct the hearing; 

(2) The name, address, and other 

contact information for the 

representative of each party to the 

hearing process; 

(3) An identification of any other 

hearing request that will be 

consolidated with this hearing request; 

and 

(4) The date on which OEPC is 

referring the case for docketing. 

(d) Delivery and service. (1) OEPC 

must refer the case to the appropriate 

Department hearings component by one 

69834 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

of the methods identified in 

§ 45.12(b)(1)(i) and (b)(1)(ii). 

(2) OEPC must serve a copy of the 

referral notice on FERC and each party 

to the hearing by one of the methods 

identified in § 45.13(c)(1) and (c)(2). 

§ 45.26 What regulations apply to a case 

referred for a hearing? 

(a) If OEPC refers the case to the 

Hearings Division, the regulations in 

this subpart will continue to apply to 

the hearing process. 

(b) If OEPC refers the case to the 

United States Department of 

Agriculture’s Office of Administrative 

Law Judges, the regulations at 7 CFR 

1.601 et seq. will apply from that point 

on. 

(c) If OEPC refers the case to the 

Department of Commerce’s designated 

ALJ office, the regulations at 50 CFR 

221.1 et seq. will apply from that point 

on. 

General Provisions Related to Hearings 

§ 45.30 What will the Hearings Division do 

with a case referral? 

Within 5 days after issuance of the 

referral notice under § 45.25(c), 7 CFR 

1.625(c), or 50 CFR 221.25(c): 

(a) The Hearings Division must: 

(1) Docket the case; 

(2) Assign an ALJ to preside over the 

hearing process and issue a decision; 

and 

(3) Issue a docketing notice that 

informs the parties of the docket 

number and the ALJ assigned to the 

case; and 

(b) The ALJ must issue a notice setting 

the time, place, and method for 

conducting an initial prehearing 

conference under § 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, consistent with the 

requirements of § 45.60(a), including the 

powers to: 

(a) Administer oaths and affirmations; 

(b) Issue subpoenas to the extent 

authorized by law; 

(c) Rule on motions; 

(d) Authorize discovery as provided 

for in this subpart; 

(e) Hold hearings and conferences; 

(f) Regulate the course of hearings; 

(g) Call and question witnesses; 

(h) Exclude any person from a hearing 

or conference for misconduct or other 

good cause; 

(i) Issue a decision consistent with 

§ 45.60(b) regarding any disputed issues 

of material fact relating to any bureau’s 

or other Department’s condition or 

prescription that has been referred to 

the ALJ for hearing; and 

(j) Take any other action authorized 

by law. 

§ 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 shall designate a successor. 

(b) If a hearing has commenced and 

the ALJ cannot proceed with it, a 

successor ALJ may do so. At the request 

of a party, the successor ALJ may recall 

any witness whose testimony is material 

and disputed, and who is available to 

testify again without undue burden. The 

successor ALJ may, within his or her 

discretion, recall any other witness. 

§ 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. 

§ 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 10 pages. 

(b) Content. (1) Each motion must 

state clearly and concisely: 

(i) Its purpose and the relief sought; 

(ii) The facts constituting the grounds 

for the relief sought; and 

(iii) Any applicable statutory or 

regulatory authority. 

(2) A proposed order must accompany 

the motion. 

(c) Response. Except as otherwise 

required by this part or by order of the 

ALJ, any other party may file a response 

to a written motion within 10 days after 

service of the motion. When a party 

presents a motion at a hearing, any other 

party may present a response orally on 

the record. 

(d) Reply. Unless the ALJ orders 

otherwise, no reply to a response may 

be filed. 

(e) Effect of filing. Unless the ALJ 

orders otherwise, the filing of a motion 

does not stay the hearing process. 

(f) Ruling. The ALJ will rule on the 

motion as soon as practicable, either 

orally on the record or in writing. He or 

she may summarily deny any dilatory, 

repetitive, or frivolous motion. 

Prehearing Conferences and Discovery 

§ 45.40 What are the requirements for 

prehearing conferences? 

(a) Initial prehearing conference. The 

ALJ will conduct an initial prehearing 

conference with the parties at the time 

specified in the docketing notice under 

§ 45.30, on or about the 20th day after 

issuance of the referral notice under 

§ 45.25(c). 

(1) The initial prehearing conference 

will be used: 

(i) To identify, narrow, and clarify the 

disputed issues of material fact and 

exclude issues that do not qualify for 

review as factual, material, and 

disputed; 

(ii) To consider the parties’ motions 

for discovery under § 45.41 and to set a 

deadline for the completion of 

discovery; 

(iii) To discuss the evidence on which 

each party intends to rely at the hearing; 

(iv) To set the deadline for submission 

of written testimony under § 45.52; and 

(v) To set the date, time, and place of 

the hearing. 

(2) The initial prehearing conference 

may also be used: 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69835 

(i) To discuss limiting and grouping 

witnesses to avoid duplication; 

(ii) To discuss stipulations of fact and 

of the content and authenticity of 

documents; 

(iii) To consider requests that the ALJ 

take official notice of public records or 

other matters; 

(iv) To discuss the submission of 

written testimony, briefs, or other 

documents in electronic form; and 

(v) To consider any other matters that 

may aid in the disposition of the case. 

(b) Other conferences. The ALJ may in 

his or her discretion direct the parties to 

attend one or more other prehearing 

conferences, if consistent with the need 

to complete the hearing process within 

90 days. Any party may by motion 

request a conference. 

(c) Notice. The ALJ must give the 

parties reasonable notice of the time and 

place of any conference. A conference 

will ordinarily be held by telephone, 

unless the ALJ orders otherwise. 

(d) Preparation. (1) Each party’s 

representative must be fully prepared 

for a discussion of all issues properly 

before the conference, both procedural 

and substantive. The representative 

must be authorized to commit the party 

that he or she represents respecting 

those issues. 

(2) Before the date set for the initial 

prehearing conference, the parties’

representatives must make a good faith 

effort: 

(i) To meet in person, by telephone, 

or by other appropriate means; and 

(ii) To reach agreement on discovery 

and the schedule of remaining steps in 

the hearing process. 

(e) Failure to attend. Unless the ALJ 

orders otherwise, a party that fails to 

attend or participate in a conference, 

after being served with reasonable 

notice of its time and place, waives all 

objections to any agreements reached in 

the conference and to any consequent 

orders or rulings. 

(f) Scope. During a conference, the 

ALJ may dispose of any procedural 

matters related to the case. 

(g) Order. Within 2 days after the 

conclusion of each conference, the ALJ 

must issue an order that recites any 

agreements reached at the conference 

and any rulings made by the ALJ during 

or as a result of the conference. 

§ 45.41 How may parties obtain discovery 

of information needed for the case? 

(a) General. By agreement of the 

parties or with the permission of the 

ALJ, a party may obtain discovery of 

information to assist the party in 

preparing or presenting its case. 

Available methods of discovery are: 

(1) Written interrogatories; 

(2) Depositions as provided in 

paragraph (h) of this section; and 

(3) Requests for production of 

designated documents or tangible things 

or for entry on designated land for 

inspection or other purposes. 

(b) Criteria. Discovery may occur only 

as agreed to by the parties or as 

authorized by the ALJ in a written order 

or during a prehearing conference. The 

ALJ may authorize discovery only if the 

party requesting discovery 

demonstrates: 

(1) That the discovery will not 

unreasonably delay the hearing process; 

(2) That the information sought: 

(i) Will be admissible at the hearing 

or appears reasonably calculated to lead 

to the discovery of admissible evidence; 

(ii) Is not already in the license 

proceeding record or otherwise 

obtainable by the party; 

(iii) Is not cumulative or repetitious; 

and 

(iv) Is not privileged or protected from 

disclosure by applicable law; 

(3) That the scope of the discovery is 

not unduly burdensome; 

(4) That the method to be used is the 

least burdensome method available; 

(5) That any trade secrets or 

proprietary information can be 

adequately safeguarded; and 

(6) That the standards for discovery 

under paragraphs (f) through (h) of this 

section have been met, if applicable. 

(c) Motions. A party may initiate 

discovery: 

(1) Pursuant to an agreement of the 

parties; or 

(2) By filing a motion that: 

(i) Briefly describes the proposed 

method(s), purpose, and scope of the 

discovery; 

(ii) Explains how the discovery meets 

the criteria in paragraphs (b)(1) through 

(b)(6) of this section; and 

(iii) Attaches a copy of any proposed 

discovery request (written 

interrogatories, notice of deposition, or 

request for production of designated 

documents or tangible things or for 

entry on designated land). 

(d) Timing of motions. A party must 

file any discovery motion under 

paragraph (c)(2) of this section within 7 

days after issuance of the referral notice 

under § 45.25(c). 

(e) Objections. (1) A party must file 

any objections to a discovery motion or 

to specific portions of a proposed 

discovery request within 7 days after 

service of the motion. 

(2) An objection must explain how, in 

the objecting party’s view, the discovery 

sought does not meet the criteria in 

paragraphs (b)(1) through (b)(6) of this 

section. 

(f) Materials prepared for hearing. A 

party generally may not obtain 

discovery of documents and tangible 

things otherwise discoverable under 

paragraph (b) of this section if they were 

prepared in anticipation of or for the 

hearing by or for another party’s 

representative (including the party’s 

attorney, expert, or consultant). 

(1) If a party wants to discover such 

materials, it must show: 

(i) That it has substantial need of the 

materials in preparing its own case; and 

(ii) That the party is unable without 

undue hardship to obtain the substantial 

equivalent of the materials by other 

means. 

(2) In ordering discovery of such 

materials when the required showing 

has been made, the ALJ must protect 

against disclosure of the mental 

impressions, conclusions, opinions, or 

legal theories of an attorney. 

(g) Experts. Unless restricted by the 

ALJ, a party may discover any facts 

known or opinions held by an expert 

concerning any relevant matters that are 

not privileged. Such discovery will be 

permitted only if: 

(1) The expert is expected to be a 

witness at the hearing; or 

(2) The expert is relied on by another 

expert who is expected to be a witness 

at the hearing, and the party shows: 

(i) That it has a compelling need for 

the information; and 

(ii) That it cannot practicably obtain 

the information by other means. 

(h) Limitations on depositions. (1) A 

party may depose a witness only if the 

party shows that the witness: 

(i) Will be unable to attend the 

hearing because of age, illness, or other 

incapacity; or 

(ii) Is unwilling to attend the hearing 

voluntarily, and the party is unable to 

compel the witness’s attendance at the 

hearing by subpoena. 

(2) Paragraph (h)(1)(ii) of this section 

does not apply to any person employed 

by or under contract with the party 

seeking the deposition. 

(3) A party may depose a senior 

Department employee only if the party 

shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the deposition would not 

significantly interfere with the 

employee’s ability to perform his or her 

government duties. 

(i) Completion of discovery. All 

discovery must be completed within 25 

days after the initial prehearing 

conference, unless the ALJ sets a 

different deadline. 

69836 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

§ 45.42 When must a party supplement or 

amend information it has previously 

provided? 

(a) Discovery. A party must promptly 

supplement or amend any prior 

response to a discovery request if it 

learns that the response: 

(1) Was incomplete or incorrect when 

made; or 

(2) Though complete and correct 

when made, is now incomplete or 

incorrect in any material respect. 

(b) Witnesses and exhibits. (1) Within 

5 days after the date set for completion 

of discovery, each party must file an 

updated version of the list of witnesses 

and exhibits required under §§ 45.21(c), 

45.22(c), or 45.24(c). 

(2) If a party wishes to include any 

new witness or exhibit on its updated 

list, it must provide an explanation of 

why it was not feasible for the party to 

include the witness or exhibit on its list 

under §§ 45.21(c), 45.22(c), or 45.24(c). 

(c) Failure to disclose. (1) A party that 

fails to disclose information required 

under §§ 45.21(c), 45.22(c), or 45.24(c), 

or paragraphs (a) or (b) of this section, 

will not be permitted to introduce as 

evidence at the hearing testimony from 

a witness or other information that it 

failed to disclosed. 

(2) Paragraph (c)(1) of this section 

does not apply if the failure to disclose 

was substantially justified or is 

harmless. 

(3) Before or during the hearing, a 

party may object to the admission of 

evidence under paragraph (c)(1) of this 

section. 

(4) The ALJ will consider the 

following in determining whether to 

exclude evidence under paragraphs 

(c)(1) through (c)(3) of this section: 

(i) The prejudice to the objecting 

party; 

(ii) The ability of the objecting party 

to cure any prejudice; 

(iii) The extent to which presentation 

of the evidence would disrupt the 

orderly and efficient hearing of the case; 

(iv) The importance of the evidence; 

and 

(v) The reason for the failure to 

disclose, including any bad faith or 

willfulness regarding the failure. 

§ 45.43 What are the requirements for 

written interrogatories? 

(a) Motion. Except upon agreement of 

the parties, a party wishing to propound 

interrogatories must file a motion under 

§ 45.41(c). 

(b) ALJ order. During or promptly 

after the initial prehearing conference, 

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 

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. During or promptly 

after the initial prehearing conference, 

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)(3) of this section. 

(2) After the deposition has been 

taken, the person recording the 

deposition must: 

(i) Provide a copy of the videotape to 

any party that requests it, at the 

requesting party’s expense; and 

(ii) Attach to the videotape a 

statement identifying the case and the 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69837 

deponent and certifying the authenticity 

of the video recording. 

(h) Use of deposition. A deposition 

may be used at the hearing as provided 

in § 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. During or promptly 

after the initial prehearing conference, 

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 file a motion 

requesting the ALJ to issue a subpoena 

to the extent authorized by law for the 

attendance of a person, the giving of 

testimony, or the production of 

documents or other relevant evidence 

during discovery or for the hearing. 

(2) A party may subpoena a senior 

Department employee only if the party 

shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the employee’s attendance 

would not significantly interfere with 

the ability to perform his or her 

government duties. 

(b) Service. (1) A subpoena may be 

served by any person who is not a party 

and is 18 years of age or older. 

(2) Service must be made by hand 

delivering a copy of the subpoena to the 

person named therein. 

(3) The person serving the subpoena 

must: 

(i) Prepare a certificate of service 

setting forth: 

(A) The date, time, and manner of 

service; or 

(B) The reason for any failure of 

service; and 

(ii) Swear to or affirm the certificate, 

attach it to a copy of the subpoena, and 

return it to the party on whose behalf 

the subpoena was served. 

(c) Witness fees. (1) A party who 

subpoenas a witness who is not a party 

must pay him or her the same fees and 

mileage expenses that are paid 

witnesses in the district courts of the 

United States. 

(2) A witness who is not a party and 

who attends a deposition or hearing at 

the request of any party without having 

been subpoenaed to do so is entitled to 

the same fees and mileage expenses as 

if he or she had been subpoenaed. 

However, this paragraph does not apply 

to federal employees who are called as 

witnesses by a bureau or other 

Department. 

(d) Motion to quash. (1) A person to 

whom a subpoena is directed may 

request by motion that the ALJ quash or 

modify the subpoena. 

(2) The motion must be filed: 

(i) Within 5 days after service of the 

subpoena; or 

(ii) At or before the time specified in 

the subpoena for compliance, if that is 

less than 5 days after service of the 

subpoena. 

(3) The ALJ may quash or modify the 

subpoena if it: 

(i) Is unreasonable; 

(ii) Requires evidence during 

discovery that is not discoverable; or 

(iii) Requires evidence during a 

hearing that is privileged or irrelevant. 

(e) Enforcement. For good cause 

shown, the ALJ may apply to the 

appropriate United States District Court 

for the issuance of an order compelling 

the appearance and testimony of a 

witness or the production of evidence as 

set forth in a subpoena that has been 

duly issued and served. 

Hearing, Briefing, and Decision 

§ 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 15 days after 

the date set for completion of discovery. 

(b) On motion by a party or on the 

ALJ’s initiative, the ALJ may change the 

date, time, or place of the hearing if he 

or she finds: 

(1) That there is good cause for the 

change; and 

(2) That the change will not unduly 

prejudice the parties and witnesses. 

§ 45.51 What are the parties’ rights during 

the hearing? 

Consistent with the provisions of this 

subpart, each party has the following 

rights during the hearing, as necessary 

to assure full and accurate disclosure of 

the facts: 

(a) To present direct and rebuttal 

evidence; 

(b) To make objections, motions, and 

arguments; and 

(c) To cross-examine witnesses and to 

conduct re-direct and re-cross 

examination as permitted by the ALJ. 

§ 45.52 What are the requirements for 

presenting testimony? 

(a) Written direct testimony. Unless 

otherwise ordered by the ALJ, all direct 

69838 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

hearing testimony must be prepared and 

submitted in written form. 

(1) Prepared written testimony must: 

(i) Have line numbers inserted in the 

left-hand margin of each page; 

(ii) Be authenticated by an affidavit or 

declaration of the witness; 

(iii) Be filed within 5 days after the 

date set for completion of discovery, 

unless the ALJ sets a different deadline; 

and 

(iv) Be offered as an exhibit during the 

hearing. 

(2) Any witness submitting written 

testimony must be available for 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 (e) of this 

section, any material offered in 

evidence, other than oral testimony, 

must be offered in the form of an 

exhibit. 

(2) Each exhibit offered by a party 

must be marked for identification. 

(3) Any party who seeks to have an 

exhibit admitted into evidence must 

provide: 

(i) The original of the exhibit to the 

reporter, unless the ALJ permits the 

substitution of a copy; and 

(ii) A copy of the exhibit to the ALJ. 

(b) Material not offered. If a document 

offered as an exhibit contains material 

not offered as evidence: 

(1) The party offering the exhibit 

must: 

(i) Designate the matter offered as 

evidence; 

(ii) Segregate and exclude the material 

not offered in evidence, to the extent 

practicable; and 

(iii) Provide copies of the entire 

document to the other parties appearing 

at the hearing. 

(2) The ALJ must give the other 

parties an opportunity to inspect the 

entire document and offer in evidence 

any other portions of the document. 

(c) Official notice. (1) At the request 

of any party at the hearing, the ALJ may 

take official notice of any matter of 

which the courts of the United States 

may take judicial notice, including the 

public records of any Department party. 

(2) The ALJ must give the other 

parties appearing at the hearing an 

opportunity to show the contrary of an 

officially noticed fact. 

(3) Any party requesting official 

notice of a fact after the conclusion of 

the hearing must show good cause for 

its failure to request official notice 

during the hearing. 

(d) Stipulations. (1) The parties may 

stipulate to any relevant facts or to the 

authenticity of any relevant documents. 

(2) If received in evidence at the 

hearing, a stipulation is binding on the 

stipulating parties. 

(3) A stipulation may be written or 

made orally at the hearing. 

§ 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 

shall 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 What is the standard of proof? 

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). 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69839 

§ 45.59 What are the requirements for 

post-hearing briefs? 

(a) General. (1) Each party may file a 

post-hearing brief within 10 days after 

the close of the hearing, unless the ALJ 

sets a different deadline. 

(2) A party may file a reply brief only 

if requested by the ALJ. The deadline for 

filing a reply brief, if any, will be set by 

the ALJ. 

(3) The ALJ may limit the length of 

the briefs to be filed under this section. 

(b) Content. (1) An initial brief must 

include: 

(i) A concise statement of the case; 

(ii) A separate section containing 

proposed findings regarding the issues 

of material fact, with supporting 

citations to the hearing record; 

(iii) Arguments in support of the 

party’s position; and 

(iv) Any other matter required by the 

ALJ. 

(2) A reply brief, if requested by the 

ALJ, must be limited to any issues 

identified by the ALJ. 

(c) Form. (1) An exhibit admitted in 

evidence or marked for identification in 

the record may not be reproduced in the 

brief. 

(i) Such an exhibit may be 

reproduced, within reasonable limits, in 

an appendix to the brief. 

(ii) Any pertinent analysis of an 

exhibit may be included in a brief. 

(2) If a brief exceeds 20 pages, it must 

contain: 

(i) A table of contents and of points 

made, with page references; and 

(ii) An alphabetical list of citations to 

legal authority, with page references. 

§ 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) 90 days after issuance of the 

referral notice under § 45.25(c), 7 CFR 

1.625(c), or 50 CFR 221.25(c). 

(b) Content. (1) The decision must 

contain: 

(i) Findings of fact on all disputed 

issues of material fact; 

(ii) Conclusions of law necessary to 

make the findings of fact (such as 

rulings on materiality and on the 

admissibility of evidence); and 

(iii) Reasons for the findings and 

conclusions. 

(2) The ALJ may adopt any of the 

findings of fact proposed by one or more 

of the parties. 

(3) The decision will not contain 

conclusions as to whether any 

preliminary condition or prescription 

should be adopted, modified, or 

rejected, or whether any proposed 

alternative should be adopted or 

rejected. 

(c) Service. Promptly after issuing his 

or her decision, the ALJ must: 

(1) Serve the decision on each party 

to the hearing; and 

(2) Forward a copy of the decision to 

FERC, along with the complete hearing 

record, for inclusion in the license 

proceeding record. 

(d) Finality. The ALJ’s decision under 

this section will be final, with respect to 

the disputed issues of material fact, for 

any Department involved in the hearing. 

To the extent the ALJ’s decision forms 

the basis for any condition or 

prescription subsequently included in 

the license, it may be subject to judicial 

review under 16 U.S.C. 825l(b). 

Subpart C—Alternatives Process 

§ 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 served on 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) and 

(e) regarding acknowledgment and 

certificate of service apply to service 

under this subpart. 

§ 45.71 How do I propose an alternative? 

(a) General. To propose an alternative, 

you must: 

(1) Be a license party; and 

(2) File a written proposal with OEPC 

within 30 days after the deadline for the 

bureau to file preliminary conditions or 

prescriptions with FERC. 

(b) Content. Your proposal must 

include: 

(1) A description of the alternative, in 

an equivalent level of detail to the 

bureau’s preliminary condition or 

prescription; 

(2) An explanation of how the 

alternative: 

(i) If a condition, will provide for the 

adequate protection and utilization of 

the reservation; or 

(ii) If a prescription, will be no less 

protective than the fishway prescribed 

by the bureau; 

(3) An explanation of how the 

alternative, as compared to the 

preliminary condition or prescription, 

will: 

(i) Cost significantly less to 

implement; or 

(ii) Result in improved operation of 

the project works for electricity 

production; 

(4) An explanation of how the 

alternative will affect: 

(i) Energy supply, distribution, cost, 

and use; 

(ii) Flood control; 

(iii) Navigation; 

(iv) Water supply; 

(v) Air quality; and 

(vi) Other aspects of environmental 

quality; and 

(5) Specific citations to any scientific 

studies, literature, and other 

documented information relied on to 

support your proposal, including any 

assumptions you are making (e.g., 

regarding the cost of energy or the rate 

of inflation). If any such document is 

not already in the license proceeding 

record, you must provide a copy with 

the proposal. 

§ 45.72 What will the bureau do with a 

proposed alternative? 

If any license party proposes an 

alternative to a preliminary condition or 

prescription under § 45.71(a)(1), the 

bureau must do the following within 60 

days after the deadline for filing 

comments to FERC’s NEPA document 

under 18 CFR 5.25(c): 

(a) Analyze the alternative under 

§ 45.73; and 

(b) File with FERC: 

(1) Any condition or prescription that 

the bureau adopts as its modified 

condition or prescription; and 

(2) Its analysis of the modified 

condition or prescription and any 

proposed alternatives under § 45.73(c). 

§ 45.73 How will the bureau analyze a 

proposed alternative and formulate its 

modified condition or prescription? 

(a) In deciding whether to adopt a 

proposed alternative, the bureau must 

consider evidence and supporting 

material provided by any license party 

or otherwise available to the bureau, 

including: 

(1) Any evidence on the 

implementation costs or operational 

impacts for electricity production of the 

proposed alternative; 

(2) Any comments received on the 

bureau’s preliminary condition or 

prescription; 

(3) Any ALJ decision on disputed 

issues of material fact issued under 

§ 45.60 with respect to the preliminary 

condition or prescription; 

69840 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

(4) Comments received on any draft or 

final NEPA documents; and 

(5) The license party’s proposal under 

§ 45.71. 

(b) The bureau must adopt a proposed 

alternative if the bureau determines, 

based on substantial evidence provided 

by any license party or otherwise 

available to the bureau, that the 

alternative: 

(1) Will, as compared to the bureau’s 

preliminary condition or prescription: 

(i) Cost significantly less to 

implement; or 

(ii) Result in improved operation of 

the project works for electricity 

production; and 

(2) Will: 

(i) If a condition, provide for the 

adequate protection and utilization of 

the reservation; or 

(ii) If a prescription, be no less 

protective than the bureau’s preliminary 

prescription. 

(c) When the bureau files with FERC 

the condition or prescription that the 

bureau adopts as its modified condition 

or prescription under §§ 45.72(b), it 

must also file: 

(1) A written statement explaining: 

(i) The basis for the adopted condition 

or prescription; and 

(ii) If the bureau is not adopting any 

alternative, its reasons for not doing so; 

and 

(2) Any study, data, and other factual 

information relied on that is not already 

part of the licensing proceeding record. 

(d) The written statement under 

paragraph (c)(1) of this section must 

demonstrate that the bureau gave equal 

consideration to the effects of the 

condition or prescription adopted and 

any alternative not adopted on: 

(1) Energy supply, distribution, cost, 

and use; 

(2) Flood control; 

(3) Navigation; 

(4) Water supply; 

(5) Air quality; and 

(6) Preservation of other aspects of 

environmental quality. 

§ 45.74 Has OMB approved the information 

collection provisions of this subpart? 

Yes. This rule contains provisions 

that would collect information from the 

public. It therefore requires approval by 

the Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. 

(PRA). According to the PRA, a Federal 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a collection of information unless it 

displays a currently valid OMB control 

number that indicates OMB approval. 

OMB has reviewed the information 

collection in this rule and approved it 

under OMB control number 1094–0001. 

Department of Commerce 

50 CFR Chapter II 

■ 3. The Department of Commerce adds 

part 221, title 50, to read as follows: 

PART 221—PRESCRIPTIONS IN FERC 

HYDROPOWER LICENSES 

Subpart A—General Provisions 

Sec. 

221.1 What is the purpose of this part, and 

to what license proceedings does it 

apply? 

221.2 What terms are used in this part? 

221.3 How are time periods computed? 

221.4 What deadlines apply to pending 

applications? 

Subpart B—Hearing Process 

Representatives 

221.10 Who may represent a party, and 

what requirements apply to a 

representative? 

Document Filing and Service 

221.11 What are the form and content 

requirements for documents under this 

subpart? 

221.12 Where and how must documents be 

filed? 

221.13 What are the requirements for 

service of documents? 

Initiation of Hearing Process 

221.20 What supporting information must 

NMFS provide with its preliminary 

prescriptions? 

221.21 How do I request a hearing? 

221.22 How do I file a notice of 

intervention and response? 

221.23 When will hearing requests be 

consolidated? 

221.24 How will NMFS respond to any 

hearing requests? 

221.25 What will NMFS do with any 

hearing requests? 

221.26 What regulations apply to a case 

referred for a hearing? 

General Provisions Related to Hearings 

221.30 What will the Department of 

Commerce’s designated ALJ office do 

with a case referral? 

221.31 What are the powers of the ALJ? 

221.32 What happens if the ALJ becomes 

unavailable? 

221.33 Under what circumstances may the 

ALJ be disqualified? 

221.34 What is the law governing ex parte 

communications? 

221.35 What are the requirements for 

motions? 

Prehearing Conferences and Discovery 

221.40 What are the requirements for 

prehearing conferences? 

221.41 How may parties obtain discovery of 

information needed for the case? 

221.42 When must a party supplement or 

amend information it has previously 

provided? 

221.43 What are the requirements for 

written interrogatories? 

221.44 What are the requirements for 

depositions? 

221.45 What are the requirements for 

requests for documents or tangible things 

or entry on land? 

221.46 What sanctions may the ALJ impose 

for failure to comply with discovery? 

221.47 What are the requirements for 

subpoenas and witness fees? 

Hearing, Briefing, and Decision 

221.50 When and where will the hearing be 

held? 

221.51 What are the parties’ rights during 

the hearing? 

221.52 What are the requirements for 

presenting testimony? 

221.53 How may a party use a deposition in 

the hearing? 

221.54 What are the requirements for 

exhibits, official notice, and stipulations? 

221.55 What evidence is admissible at the 

hearing? 

221.56 What are the requirements for 

transcription of the hearing? 

221.57 What is the standard of proof? 

221.58 When will the hearing record close? 

221.59 What are the requirements for 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 What will NMFS do with a proposed 

alternative? 

221.73 How will NMFS analyze a proposed 

alternative and formulate its modified 

prescription? 

§ 221.74 Has OMB approved the 

information collection provisions of this 

subpart? 

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

Subpart A—General Provisions 

§ 221.1 What is the purpose of this part, 

and to what license proceedings does it 

apply? 

(a) Hearing process. (1) The 

regulations in subparts A and B of this 

part contain rules of practice and 

procedure applicable to hearings on 

disputed issues of material fact with 

respect to mandatory prescriptions that 

the Department of Commerce, acting 

through the National Oceanic and 

Atmospheric Administration’s National 

Marine Fisheries Service (NMFS) may 

develop for inclusion in a hydropower 

license issued by the Federal Energy 

Regulatory Commission (FERC) under 

subchapter I of the Federal Power Act 

(FPA), 16 U.S.C. 791 et seq. The 

authority to develop these prescriptions 

is granted by FPA section 18, 16 U.S.C. 

811, which authorizes the Secretary of 

Commerce to prescribe fishways. 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69841 

(2) The hearing process under this 

part does not apply to recommendations 

that the Department of Commerce may 

submit to FERC under FPA section 10(a) 

or (j), 16 U.S.C. 803(a), (j). 

(3) The FPA also grants the 

Department of Agriculture and Interior 

the authority to develop mandatory 

conditions, and the Department of the 

Interior the authority to develop 

mandatory prescriptions, for inclusion 

in a hydropower license. Where the 

Department of Commerce and either or 

both of these other Departments develop 

conditions or prescriptions to be 

included in the same hydropower 

license and where the Departments 

agree to consolidate the hearings under 

§ 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 

prescriptions under FPA section 33, 16 

U.S.C. 823d. That section allows any 

party to the license proceeding to 

propose an alternative to a fishway 

prescribed by NMFS under section 18. 

(c) Reservation of authority. Where 

NMFS notifies FERC that it is reserving 

its authority to develop one or more 

prescriptions during the term of the 

license, the hearing and alternatives 

processes under this part for such 

prescriptions will be available if and 

when NMFS exercises its reserved 

authority. NMFS will consult with 

FERC and notify the license parties 

regarding how to initiate the hearing 

process and alternatives process at that 

time. 

(d) Applicability. (1) This part applies 

to any hydropower license proceeding 

for which the license has not been 

issued as of November 17, 2005 and for 

which one or more preliminary 

prescriptions or prescriptions have been 

or are filed with FERC. 

(2) If NMFS has already filed one or 

more preliminary prescriptions or 

prescriptions as of November 17, 2005, 

the special applicability provisions of 

§ 221.4 also apply. 

§ 221.2 What terms are used in this part? 

As used in this part: 

ALJ means an administrative law 

judge appointed under 5 U.S.C. 3105 

and assigned to preside over the hearing 

process under subpart B of this part. 

Alternative means a prescription that 

a license party other than NMFS or 

another Department develops as an 

alternative to a preliminary prescription 

from NMFS or another Department, 

under FPA sec. 33, 16 U.S.C. 823d. 

Condition means a condition under 

FPA sec. 4(e), 16 U.S.C. 797(e), for the 

adequate protection and utilization of a 

reservation. 

Day means a calendar day. 

Department means the Department of 

Agriculture, Department of Commerce, 

or Department of the Interior. 

Department of Commerce’s 

designated ALJ office means the ALJ 

office that is assigned to preside over 

the hearings process for NMFS. 

Discovery means a prehearing process 

for obtaining facts or information to 

assist a party in preparing or presenting 

its case. 

Ex parte communication means an 

oral or written communication to the 

ALJ that is made without providing all 

parties reasonable notice and an 

opportunity to participate. 

FERC means the Federal Energy 

Regulatory Commission. 

FPA means the Federal Power Act, 16 

U.S.C. 791 et seq. 

Intervention means a process by 

which a person who did not request a 

hearing under § 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 parts 4 or 5. 

Material fact means a fact that, if 

proved, may affect a Department’s 

decision whether to affirm, modify, or 

withdraw any condition or prescription. 

NEPA document means an 

environmental assessment or 

environmental impact statement issued 

to comply with the requirements of the 

National Environmental Policy Act of 

1969, 42 U.S.C. 4321 et seq. 

NMFS means the National Marine 

Fisheries Service, a constituent agency 

of the Department of Commerce, acting 

by and through the Assistant 

Administrator for Fisheries or one of 

NMFS’s six Regional Administrators, as 

appropriate. 

Office of Habitat Conservation means 

the NMFS Office of Habitat 

Conservation. Address: Chief, Habitat 

Protection Division, Office of Habitat 

Conservation, National Marine Fisheries 

Service, 1315 East-West Highway, Silver 

Spring, MD 20910. Telephone 301–713–

4300. Facsimile number 301–713–4305. 

Party means, with respect to NMFS’s 

hearing process under subpart B of this 

part: 

(1) A license party that has filed a 

timely request for a hearing under: 

(i) Section 221.21; or 

(ii) Either 7 CFR 1.621 or 43 CFR 

45.21, with respect to a hearing process 

consolidated under § 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) NMFS, if it has filed a preliminary 

prescription; and 

(4) Any other Department that has 

filed a preliminary condition or 

prescription, with respect to a hearing 

process consolidated under § 221.23. 

Person means an individual; a 

partnership, corporation, association, or 

other legal entity; an unincorporated 

organization; and any federal, state, 

tribal, county, district, territorial, or 

local government or agency. 

Preliminary condition or prescription 

means a preliminary condition or 

prescription filed by a Department with 

FERC under 18 CFR 4.34(b), 4.34(i), or 

5.22(a) for potential inclusion in a 

hydropower license. 

Prescription means a fishway 

prescribed under FPA sec. 18, 16 U.S.C. 

811, to provide for the safe, timely, and 

effective passage of fish. 

Representative means a person who: 

(1) Is authorized by a party to 

represent the party in a hearing process 

under this subpart; and 

(2) Has filed an appearance under 

§ 221.10. 

Secretary means the Secretary of 

Commerce or his or her designee. 

Senior Department employee has the 

same meaning as the term ‘‘senior 

employee’’ in 5 CFR 2637.211(a). 

You refers to a party other than a 

Department. 

§ 221.3 How are time periods computed? 

(a) General. Time periods are 

computed as follows: 

(1) The day of the act or event from 

which the period begins to run is not 

included. 

(2) The last day of the period is 

included. 

(i) If that day is a Saturday, Sunday, 

or federal holiday, the period is 

extended to the next business day. 

69842 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

(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 

§ 221.24, or any document under 

subpart C of this part. 

(2) An extension of time to file any 

other document under subpart B of this 

part may be granted only upon a 

showing of good cause. 

(i) To request an extension of time, a 

party must file a motion under § 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 pending 

applications? 

(a) Applicability. (1) This section 

applies to any case in which NMFS has 

filed a preliminary prescription or 

prescription with FERC before 

November 17, 2005 and FERC has not 

issued a license as of that date. 

(2) The deadlines in this section will 

apply in such a case, in lieu of any 

inconsistent deadline in other sections 

of this part. 

(b) Hearing process. (1) Any request 

for a hearing under § 221.21 must be 

filed with the Office of Habitat 

Conservation by December 19, 2005. 

(2) Any notice of intervention and 

response under § 221.22 must be filed 

by January 3, 2006. 

(3) Upon receipt of a hearing request 

under paragraph (b)(1) of this section, 

NMFS must do the following by March 

17, 2006: 

(i) Comply with the requirements of 

§ 221.23; 

(ii) Determine jointly with any other 

Department that has received a hearing 

request, after consultation with FERC, a 

time frame for the hearing process and 

a corresponding deadline for NMFS to 

file an answer under § 221.24; and 

(iii) Issue a notice to each party 

specifying the time frame for the hearing 

process, including the deadline for 

NMFS to file an answer. 

(c) Alternatives process. (1) Any 

alternative under § 221.71 must be filed 

with the Office of Habitat Conservation 

by December 19, 2005. 

(2) Upon receipt of an alternative 

under paragraph (c)(1) of this section, if 

no hearing request is filed under 

paragraph (b)(1) of this section, NMFS 

must do the following by February 15, 

2006: 

(i) Determine jointly with any other 

Department that has received a related 

alternative, after consultation with 

FERC, a time frame for the filing of a 

modified prescription under § 221.72(b); 

and 

(ii) Issue a notice to the license party 

that has submitted the alternative, 

specifying the time frame for the filing 

of a modified prescription. 

(3) Upon receipt of an alternative 

under paragraph (c)(1) of this section, if 

a hearing request is also filed under 

paragraph (b)(1) of this section, NMFS 

will follow the provisions of paragraph 

(b)(3) of this section. 

Subpart B—Hearing Process 

Representatives 

§ 221.10 Who may represent a party, and 

what requirements apply to a 

representative? 

(a) Individuals. A party who is an 

individual may either represent himself 

or herself in the hearing process under 

this subpart or authorize an attorney to 

represent him or her. 

(b) Organizations. A party that is an 

organization or other entity may 

authorize one of the following to 

represent it: 

(1) An attorney; 

(2) A partner, if the entity is a 

partnership; 

(3) An officer or full-time employee, 

if the entity is a corporation, 

association, or unincorporated 

organization; 

(4) A receiver, administrator, 

executor, or similar fiduciary, if the 

entity is a receivership, trust, or estate; 

or 

(5) An elected or appointed official or 

an employee, if the entity is a federal, 

state, tribal, county, district, territorial, 

or local government or component. 

(c) Appearance. A representative 

must file a notice of appearance. The 

notice must: 

(1) Meet the form and content 

requirements for documents under 

§ 221.11; 

(2) Include the name and address of 

the person on whose behalf the 

appearance is made; 

(3) If the representative is an attorney, 

include a statement that he or she is a 

member in good standing of the bar of 

the highest court of a state, the District 

of Columbia, or any territory or 

commonwealth of the United States 

(identifying which one); and 

(4) If the representative is not an 

attorney, include a statement explaining 

his or her authority to represent the 

entity. 

(d) Disqualification. The ALJ may 

disqualify any representative for 

misconduct or other good cause. 

Document Filing and Service 

§ 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; 

(3) Be clearly typewritten, printed, or 

otherwise reproduced by a process that 

yields legible and permanent copies; 

(4) Use 10 point font size or larger; 

(5) Be double-spaced except for 

footnotes and long quotations, which 

may be single-spaced; 

(6) Have margins of at least 1 inch; 

and 

(7) Be bound on the left side, if 

bound. 

(b) Caption. Each document filed 

under this subpart must begin with a 

caption that sets forth: 

(1) The name of the case under this 

subpart and the docket number, if one 

has been assigned; 

(2) The name and docket number of 

the license proceeding to which the case 

under this subpart relates; and 

(3) A descriptive title for the 

document, indicating the party for 

whom it is filed and the nature of the 

document. 

(c) Signature. The original of each 

document filed under this subpart must 

be signed by the representative of the 

person for whom the document is filed. 

The signature constitutes a certification 

by the representative that he or she has 

read the document; that to the best of 

his or her knowledge, information, and 

belief, the statements made in the 

document are true; and that the 

document is not being filed for the 

purpose of causing delay. 

(d) Contact information. Below the 

representative’s signature, the document 

must provide the representative’s name, 

mailing address, street address (if 

different), telephone number, facsimile 

number (if any), and electronic mail 

address (if any). 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69843 

§ 221.12 Where and how must documents 

be filed? 

(a) Place of filing. Any documents 

relating to a case under this subpart 

must be filed with the appropriate 

office, as follows: 

(1) Before NMFS refers a case for 

docketing under § 221.25, any 

documents must be filed with the Office 

of Habitat Conservation. The Office of 

Habitat Conservation’s address, 

telephone number, and facsimile 

number are set forth in § 221.2. 

(2) NMFS will notify the parties of the 

date on which it refers a case for 

docketing under § 221.25. After that 

date, any documents must be filed with: 

(i) The Department of Commerce’s 

designated ALJ office. The name, 

address, telephone number, and 

facsimile number of the Department of 

Commerce’s designated ALJ office will 

be provided in the referral notice from 

NMFS; or 

(ii) The hearings component of or 

used by another Department, if that 

Department will be conducting the 

hearing under § 221.25. The name, 

address, telephone number, and 

facsimile number of the appropriate 

hearings component will be provided in 

the referral notice from NMFS. 

(b) Method of filing. (1) A document 

must be filed with the appropriate office 

under paragraph (a) of this section using 

one of the following methods: 

(i) By hand delivery of the original 

document; 

(ii) By sending the original document 

by express mail or courier service for 

delivery on the next business day; or 

(iii) By sending the document by 

facsimile if: 

(A) The document is 20 pages or less, 

including all attachments; 

(B) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(C) The original of the document is 

sent by regular mail on the same day. 

(2) Parties are encouraged, but not 

required to supplement any original 

document by providing the appropriate 

office with an electronic copy of the 

document on compact disc. 

(c) Date of filing. A document under 

this subpart is considered filed on the 

date it is received. However, any 

document received after 5 p.m. at the 

place where the filing is due is 

considered filed on the next regular 

business day. 

(d) Nonconforming documents. If any 

document submitted for filing under 

this subpart does not comply with the 

requirements of this subpart or any 

applicable order, it may be rejected. If 

the defect is minor, the party may be 

notified of the defect and given a chance 

to correct it. 

§ 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 served 

on FERC and each license party, using 

one of the methods of service in 

paragraph (c) of this section. 

(2) A complete copy of any notice of 

intervention and response under 

§ 221.22 must be: 

(i) Served on FERC, the license 

applicant, any person who has filed a 

request for hearing under § 221.21, and 

NMFS, using one of the methods of 

service in paragraph (c) of this section; 

and 

(ii) Sent to any other license party 

using regular mail. 

(3) A complete copy of any other filed 

document must be served on each party, 

using one of the methods of service in 

paragraph (c) of this section. 

(b) Documents issued by the ALJ. A 

complete copy of any notice, order, 

decision, or other document issued by 

the ALJ under this subpart must be 

served on each party, using one of the 

methods of service in paragraph (c) of 

this section. 

(c) Method of service. Service must be 

accomplished by one of the following 

methods: 

(1) By hand delivery of the document; 

(2) By sending the document by 

express mail or courier service for 

delivery on the next business day; 

(3) By sending the document by 

facsimile if: 

(i) The document is 20 pages or less, 

including all attachments; 

(ii) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(iii) The document is sent by regular 

mail on the same day; or 

(4) By sending the document, 

including all attachments, by electronic 

mail if: 

(i) A copy of the document is sent by 

regular mail on the same day; and 

(ii) The party acknowledges receipt of 

the document by close of the next 

business day. 

(d) Acknowledgment of service. Any 

party who receives a document under 

this subpart by electronic mail must 

promptly send a reply electronic mail 

message acknowledging receipt. 

(e) Certificate of service. A certificate 

of service must be attached to each 

document filed under this subpart. The 

certificate must be signed by the party’s 

representative and include the following 

information: 

(1) The name, address, and other 

contact information of each party’s 

representative on whom the document 

was served; 

(2) The means of service, including 

information indicating compliance with 

paragraph (c)(3) or (c)(4) of this section, 

if applicable; and 

(3) The date of service. 

Initiation of Hearing Process 

§ 221.20 What supporting information 

must NMFS provide with its preliminary 

prescriptions? 

(a) Supporting information. (1) When 

NMFS files a preliminary prescription 

with FERC, it must include a rationale 

for the prescription and an index to 

NMFS’s administrative record that 

identifies all documents relied upon. 

(2) If any of the documents relied 

upon are not already in the license 

proceeding record, NMFS must: 

(i) File them with FERC at the time it 

files the preliminary prescription; and 

(ii) Provide copies to the license 

applicant. 

(b) Service. NMFS will serve a copy 

of its preliminary prescription on each 

license party. 

§ 221.21 How do I request a hearing? 

(a) General. To request a hearing on 

disputed issues of material fact with 

respect to any prescription filed by 

NMFS, you must: 

(1) Be a license party; and 

(2) File with the Office of Habitat 

Conservation a written request for a 

hearing within 30 days after the 

deadline for the Departments to file 

preliminary prescriptions with FERC. 

(b) Content. Your hearing request 

must contain: 

(1) A numbered list of the factual 

issues that you allege are in dispute, 

each stated in a single, concise sentence; 

and 

(2) The following information with 

respect to each issue: 

(i) The specific factual statements 

made or relied upon by [the bureau] 

under § 221.20(a) that you dispute; 

(ii) The basis for your opinion that 

those factual statements are unfounded 

or erroneous; 

(iii) The basis for your opinion that 

any factual dispute is material; and 

(iv) With respect to any scientific 

studies, literature, and other 

documented information supporting 

your opinions under paragraphs 

(b)(2)(ii) and (b)(2)(iii) of this section, 

specific citations to the information 

relied upon. If any such document is not 

already in the license proceeding 

69844 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

record, you must provide a copy with 

the request. 

(c) Witnesses and exhibits. Your 

hearing request must also list the 

witnesses and exhibits that you intend 

to present at the hearing, other than 

solely for impeachment purposes. 

(1) For each witness listed, you must 

provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony. 

(2) For each exhibit listed, you must 

specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b)(2) of this section 

may not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

§ 221.22 How do I file a notice of 

intervention and response? 

(a) General. (1) To intervene as a party 

to the hearing process, you must: 

(i) Be a license party; and 

(ii) File with the Office of Habitat 

Conservation a notice of intervention 

and a written response to any request 

for a hearing within 15 days after the 

date of service of the request for a 

hearing. 

(2) A license party filing a notice of 

intervention and response may not raise 

issues of material fact beyond those 

raised in the hearing request. 

(b) Content. In your notice of 

intervention and response you must 

explain your position with respect to 

the issues of material fact raised in the 

hearing request under § 221.21(b). 

(1) If you agree with the information 

provided by NMFS under § 221.20(a) or 

by the requester under § 221.21(b), your 

response may refer to NMFS’s 

explanation or the requester’s hearing 

request for support. 

(2) If you wish to rely on additional 

information or analysis, your response 

must provide the same level of detail 

with respect to the additional 

information or analysis as required 

under § 221.21(b). 

(c) Witnesses and exhibits. Your 

response and notice must also list the 

witnesses and exhibits that you intend 

to present at the hearing, other than 

solely for impeachment purposes. 

(1) For each witness listed, you must 

provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony; and 

(2) For each exhibit listed, you must 

specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b) of this section may 

not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

§ 221.23 When will hearing requests be 

consolidated? 

(a) Initial Department coordination. If 

NMFS has received a copy of a hearing 

request, it must contact the other 

Departments within 10 days after the 

deadline for filing hearing requests 

under § 221.21 and determine: 

(1) Whether any of the other 

Departments has also filed a preliminary 

condition or prescription relating to the 

license with FERC; and 

(2) If so, whether the other 

Departments have also received a 

hearing request with respect to the 

preliminary condition or prescription. 

(b) Decision on consolidation. Within 

25 days after the deadline for filing 

hearing requests under § 221.21, if 

NMFS has received a hearing request, 

NMFS must: 

(1) Consult with any other 

Department that has also received a 

hearing request; and 

(2) Decide jointly with the other 

Department: 

(i) Whether to consolidate the cases 

for hearing under paragraphs (c)(3)(ii) 

through (c)(3)(iv) of this section; and 

(ii) If so, which Department will 

conduct the hearing on their behalf. 

(c) Criteria. Cases will or may be 

consolidated as follows: 

(1) All hearing requests with respect 

to any prescriptions from NMFS will be 

consolidated for hearing. 

(2) Any or all of the following may be 

consolidated for hearing if NMFS 

determines that there are common 

issues of material fact or that 

consolidation is otherwise appropriate: 

(i) Two or more hearing requests with 

respect to prescriptions from NMFS and 

the Department of the Interior; or 

(ii) Two or more hearing requests with 

respect to any condition from another 

Department and any prescription from 

NMFS. 

§ 221.24 How will NMFS respond to any 

hearing requests? 

(a) General. NMFS will determine 

whether to file an answer to any hearing 

request under § 221.21. 

(b) Content. If NMFS files an answer: 

(1) For each of the numbered factual 

issues listed under § 221.21(b)(1), the 

answer must explain NMFS’s position 

with respect to the issues of material 

fact raised by the requester, including 

one or more of the following statements 

as appropriate: 

(i) That NMFS is willing to stipulate 

to the facts as alleged by the requester; 

(ii) That NMFS believes the issue 

listed by the requester is not a factual 

issue, explaining the basis for such 

belief; 

(iii) That NMFS believes the issue 

listed by the requester is not material, 

explaining the basis for such belief; or 

(iv) That NMFS agrees that the issue 

is factual, material, and in dispute. 

(2) The answer must also indicate 

whether the hearing request will be 

consolidated with one or more other 

hearing requests under § 221.23 and, if 

so: 

(i) Identify any other hearing request 

that will be consolidated with this 

hearing request; and 

(ii) State which Department will 

conduct the hearing and provide contact 

information for the appropriate 

Department hearings component. 

(c) Witnesses and exhibits. NMFS’s 

answer must also list the witnesses and 

exhibits that it intends to present at the 

hearing, other than solely for 

impeachment purposes. 

(1) For each witness listed, NMFS 

must provide: 

(i) His or her name, address, 

telephone number, and qualifications; 

and 

(ii) A brief narrative summary of his 

or her expected testimony. 

(2) For each exhibit listed, NMFS 

must specify whether it is in the license 

proceeding record. 

(d) Page limits. (1) For each disputed 

factual issue, the information provided 

under paragraph (b)(1) of this section 

may not exceed two pages. 

(2) For each witness, the information 

provided under paragraph (c)(1) of this 

section may not exceed one page. 

(e) Notice in lieu of answer. If NMFS 

elects not to file an answer to a hearing 

request: 

(1) NMFS is deemed to agree that the 

issues listed by the requester are factual, 

material, and in dispute; 

(2) NMFS may file a list of witnesses 

and exhibits with respect to the request 

only as provided in § 221.42(b); and 

(3) NMFS must file a notice 

containing the information required by 

paragraph (b)(2) of this section, if the 

hearing request will be consolidated 

with one or more other hearing requests 

under § 221.23. 

§ 221.25 What will NMFS do with any 

hearing requests? 

(a) Case referral. Within 50 days after 

the deadline in § 221.21(a), NMFS will 

refer the case for a hearing as follows: 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69845 

(1) If the hearing is to be conducted 

by NMFS, NMFS will refer the case to 

the Department of Commerce’s 

designated ALJ office. 

(2) If the hearing is to be conducted 

by another Department, NMFS will refer 

the case to the hearings component used 

by that Department. 

(b) Content. The case referral will 

consist of the following: 

(1) A copy of any preliminary 

prescription under § 221.20; 

(2) The original of any hearing request 

under § 221.21; 

(3) The original of any notice of 

intervention and response under 

§ 221.22; 

(4) The original of any answer under 

§ 221.24; and 

(5) An original referral notice under 

paragraph (c) of this section. 

(c) Notice. At the time NMFS refers 

the case for a hearing, it must provide 

a referral notice that contains the 

following information: 

(1) The name, address, telephone 

number, and facsimile number of the 

Department hearings component that 

will conduct the hearing; 

(2) The name, address, and other 

contact information for the 

representative of each party to the 

hearing process; 

(3) An identification of any other 

hearing request that will be 

consolidated with this hearing request; 

and 

(4) The date on which NMFS is 

referring the case for docketing. 

(d) Delivery and service. (1) NMFS 

must refer the case to the appropriate 

Department hearings component by one 

of the methods identified in 

§ 221.12(b)(1)(i) through (b)(1)(ii). 

(2) NMFS must serve a copy of the 

referral notice on FERC and each party 

to the hearing by one of the methods 

identified in § 221.13(c)(1) and (c)(2). 

§ 221.26 What regulations apply to a case 

referred for a hearing? 

(a) If NMFS refers the case to the 

Department of Commerce’s designated 

ALJ office, the regulations in this 

subpart will continue to apply to the 

hearing process. 

(b) If NMFS refers the case to the 

United States Department of 

Agriculture’s Office of Administrative 

Law Judges, the regulations at 7 CFR 

1.601 et seq. will apply from that point 

on. 

(c) If NMFS refers the case to the 

Department of the Interior’s Office of 

Hearings and Appeals, the regulations at 

43 CFR 45.1 et seq. will apply from that 

point on. 

General Provisions Related to Hearings 

§ 221.30 What will the Department of 

Commerce’s designated ALJ office do with 

a case referral? 

Within 5 days after issuance of the 

referral notice under § 221.25(c), 7 CFR 

1.625(c), or 43 CFR 45.25(c): 

(a) The Department of Commerce’s 

designated ALJ office must: 

(1) Docket the case; 

(2) Assign an ALJ to preside over the 

hearing process and issue a decision; 

and 

(3) Issue a docketing notice that 

informs the parties of the docket 

number and the ALJ assigned to the 

case; and 

(b) The ALJ must issue a notice setting 

the time, place, and method for 

conducting an initial prehearing 

conference under § 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, consistent with the 

requirements of § 221.60(a), including 

the powers to: 

(a) Administer oaths and affirmations; 

(b) Issue subpoenas to the extent 

authorized by law; 

(c) Rule on motions; 

(d) Authorize discovery as provided 

for in this subpart; 

(e) Hold hearings and conferences; 

(f) Regulate the course of hearings; 

(g) Call and question witnesses; 

(h) Exclude any person from a hearing 

or conference for misconduct or other 

good cause; 

(i) Issue a decision consistent with 

§ 221.60(b) regarding any disputed 

issues of material fact relating to any 

Department’s condition or prescription 

that has been referred to the ALJ for 

hearing; and 

(j) Take any other action authorized 

by law. 

§ 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 shall 

designate a successor. 

(b) If a hearing has commenced and 

the ALJ cannot proceed with it, a 

successor ALJ may do so. At the request 

of a party, the successor ALJ may recall 

any witness whose testimony is material 

and disputed, and who is available to 

testify again without undue burden. The 

successor ALJ may, within his or her 

discretion, recall any other witness. 

§ 221.33 Under what circumstances may 

the ALJ be disqualified? 

(a) The ALJ may withdraw from a case 

at any time the ALJ deems himself or 

herself disqualified. 

(b) At any time before issuance of the 

ALJ’s decision, any party may move that 

the ALJ disqualify himself or herself for 

personal bias or other valid cause. 

(1) The party must file the motion 

promptly after discovering facts or other 

reasons allegedly constituting cause for 

disqualification. 

(2) The party must file with the 

motion an affidavit or declaration 

setting forth the facts or other reasons in 

detail. 

(c) The ALJ must rule upon the 

motion, stating the grounds for the 

ruling. 

(1) If the ALJ concludes that the 

motion is timely and meritorious, he or 

she must disqualify himself or herself 

and withdraw from the case. 

(2) If the ALJ does not disqualify 

himself or herself and withdraw from 

the case, the ALJ must continue with the 

hearing process and issue a decision. 

§ 221.34 What is the law governing ex 

parte communications? 

(a) Ex parte communications with the 

ALJ or his or her staff are prohibited in 

accordance with 5 U.S.C. 554(d). 

(b) This section does not prohibit ex 

parte inquiries concerning case status or 

procedural requirements, unless the 

inquiry involves an area of controversy 

in the hearing process. 

§ 221.35 What are the requirements for 

motions? 

(a) General. Any party may apply for 

an order or ruling on any matter related 

to the hearing process by presenting a 

motion to the ALJ. A motion may be 

presented any time after the Department 

of Commerce’s designated ALJ office 

issues a docketing notice under 

§ 221.30. 

(1) A motion made at a hearing may 

be stated orally on the record, unless the 

ALJ directs that it be reduced to writing. 

(2) Any other motion must: 

(i) Be in writing; 

(ii) Comply with the requirements of 

this subpart with respect to form, 

content, filing, and service; and 

(iii) Not exceed 10 pages. 

(b) Content. (1) Each motion must 

state clearly and concisely: 

(i) Its purpose and the relief sought; 

(ii) The facts constituting the grounds 

for the relief sought; and 

(iii) Any applicable statutory or 

regulatory authority. 

(2) A proposed order must accompany 

the motion. 

(c) Response. Except as otherwise 

required by this part or by order of the 

69846 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

ALJ, any other party may file a response 

to a written motion within 10 days after 

service of the motion. When a party 

presents a motion at a hearing, any other 

party may present a response orally on 

the record. 

(d) Reply. Unless the ALJ orders 

otherwise, no reply to a response may 

be filed. 

(e) Effect of filing. Unless the ALJ 

orders otherwise, the filing of a motion 

does not stay the hearing process. 

(f) Ruling. The ALJ will rule on the 

motion as soon as practicable, either 

orally on the record or in writing. He or 

she may summarily deny any dilatory, 

repetitive, or frivolous motion. 

Prehearing Conferences and Discovery 

§ 221.40 What are the requirements for 

prehearing conferences? 

(a) Initial prehearing conference. The 

ALJ will conduct an initial prehearing 

conference with the parties at the time 

specified in the docketing notice under 

§ 221.30, on or about the 20th day after 

issuance of the referral notice under 

§ 221.25(c). 

(1) The initial prehearing conference 

will be used: 

(i) To identify, narrow, and clarify the 

disputed issues of material fact and 

exclude issues that do not qualify for 

review as factual, material, and 

disputed; 

(ii) To consider the parties’ motions 

for discovery under § 221.41 and to set 

a deadline for the completion of 

discovery; 

(iii) To discuss the evidence on which 

each party intends to rely at the hearing; 

(iv) To set the deadline for submission 

of written testimony under § 221.52; and 

(v) To set the date, time, and place of 

the hearing. 

(2) The initial prehearing conference 

may also be used: 

(i) To discuss limiting and grouping 

witnesses to avoid duplication; 

(ii) To discuss stipulations of fact and 

of the content and authenticity of 

documents; 

(iii) To consider requests that the ALJ 

take official notice of public records or 

other matters; 

(iv) To discuss the submission of 

written testimony, briefs, or other 

documents in electronic form; and 

(v) To consider any other matters that 

may aid in the disposition of the case. 

(b) Other conferences. The ALJ may in 

his or her discretion direct the parties to 

attend one or more other prehearing 

conferences, if consistent with the need 

to complete the hearing process within 

90 days. Any party may by motion 

request a conference. 

(c) Notice. The ALJ must give the 

parties reasonable notice of the time and 

place of any conference. A conference 

will ordinarily be held by telephone, 

unless the ALJ orders otherwise. 

(d) Preparation. (1) Each party’s 

representative must be fully prepared 

for a discussion of all issues properly 

before the conference, both procedural 

and substantive. The representative 

must be authorized to commit the party 

that he or she represents respecting 

those issues. 

(2) Before the date set for the initial 

prehearing conference, the parties’

representatives must make a good faith 

effort: 

(i) To meet in person, by telephone, 

or by other appropriate means; and 

(ii) To reach agreement on discovery 

and the schedule of remaining steps in 

the hearing process. 

(e) Failure to attend. Unless the ALJ 

orders otherwise, a party that fails to 

attend or participate in a conference, 

after being served with reasonable 

notice of its time and place, waives all 

objections to any agreements reached in 

the conference and to any consequent 

orders or rulings. 

(f) Scope. During a conference, the 

ALJ may dispose of any procedural 

matters related to the case. 

(g) Order. Within 2 days after the 

conclusion of each conference, the ALJ 

must issue an order that recites any 

agreements reached at the conference 

and any rulings made by the ALJ during 

or as a result of the conference. 

§ 221.41 How may parties obtain discovery 

of information needed for the case? 

(a) General. By agreement of the 

parties or with the permission of the 

ALJ, a party may obtain discovery of 

information to assist the party in 

preparing or presenting its case. 

Available methods of discovery are: 

(1) Written interrogatories; 

(2) Depositions as provided in 

paragraph (h) of this section; and 

(3) Requests for production of 

designated documents or tangible things 

or for entry on designated land for 

inspection or other purposes. 

(b) Criteria. Discovery may occur only 

as agreed to by the parties or as 

authorized by the ALJ in a written order 

or during a prehearing conference. The 

ALJ may authorize discovery only if the 

party requesting discovery 

demonstrates: 

(1) That the discovery will not 

unreasonably delay the hearing process; 

(2) That the information sought: 

(i) Will be admissible at the hearing 

or appears reasonably calculated to lead 

to the discovery of admissible evidence; 

(ii) Is not already in the license 

proceeding record or otherwise 

obtainable by the party; 

(iii) Is not cumulative or repetitious; 

and 

(iv) Is not privileged or protected from 

disclosure by applicable law; 

(3) That the scope of the discovery is 

not unduly burdensome; 

(4) That the method to be used is the 

least burdensome method available; 

(5) That any trade secrets or 

proprietary information can be 

adequately safeguarded; and 

(6) That the standards for discovery 

under paragraphs (f) through (h) of this 

section have been met, if applicable. 

(c) Motions. A party may initiate 

discovery: 

(1) Pursuant to an agreement of the 

parties; or 

(2) By filing a motion that: 

(i) Briefly describes the proposed 

method(s), purpose, and scope of the 

discovery; 

(ii) Explains how the discovery meets 

the criteria in paragraphs (b)(1) through 

(b)(6) of this section; and 

(iii) Attaches a copy of any proposed 

discovery request (written 

interrogatories, notice of deposition, or 

request for production of designated 

documents or tangible things or for 

entry on designated land). 

(d) Timing of motions. A party must 

file any discovery motion under 

paragraph (c)(2) of this section within 7 

days after issuance of the referral notice 

under § 221.25(c). 

(e) Objections. (1) A party must file 

any objections to a discovery motion or 

to specific portions of a proposed 

discovery request within 7 days after 

service of the motion. 

(2) An objection must explain how, in 

the objecting party’s view, the discovery 

sought does not meet the criteria in 

paragraphs (b)(1) through (b)(6) of this 

section. 

(f) Materials prepared for hearing. A 

party generally may not obtain 

discovery of documents and tangible 

things otherwise discoverable under 

paragraph (b) of this section if they were 

prepared in anticipation of or for the 

hearing by or for another party’s 

representative (including the party’s 

attorney, expert, or consultant). 

(1) If a party wants to discover such 

materials, it must show: 

(i) That it has substantial need of the 

materials in preparing its own case; and 

(ii) That the party is unable without 

undue hardship to obtain the substantial 

equivalent of the materials by other 

means. 

(2) In ordering discovery of such 

materials when the required showing 

has been made, the ALJ must protect 

against disclosure of the mental 

impressions, conclusions, opinions, or 

legal theories of an attorney. 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69847 

(g) Experts. Unless restricted by the 

ALJ, a party may discover any facts 

known or opinions held by an expert 

concerning any relevant matters that are 

not privileged. Such discovery will be 

permitted only if: 

(1) The expert is expected to be a 

witness at the hearing; or 

(2) The expert is relied on by another 

expert who is expected to be a witness 

at the hearing, and the party shows: 

(i) That it has a compelling need for 

the information; and 

(ii) That it cannot practicably obtain 

the information by other means. 

(h) Limitations on depositions. (1) A 

party may depose a witness only if the 

party shows that the witness: 

(i) Will be unable to attend the 

hearing because of age, illness, or other 

incapacity; or 

(ii) Is unwilling to attend the hearing 

voluntarily, and the party is unable to 

compel the witness’s attendance at the 

hearing by subpoena. 

(2) Paragraph (h)(1)(ii) of this section 

does not apply to any person employed 

by or under contract with the party 

seeking the deposition. 

(3) A party may depose a senior 

Department employee only if the party 

shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the deposition would not 

significantly interfere with the 

employee’s ability to perform his or her 

government duties. 

(i) Completion of discovery. All 

discovery must be completed within 25 

days after the initial prehearing 

conference, unless the ALJ sets a 

different deadline. 

§ 221.42 When must a party supplement or 

amend information it has previously 

provided? 

(a) Discovery. A party must promptly 

supplement or amend any prior 

response to a discovery request if it 

learns that the response: 

(1) Was incomplete or incorrect when 

made; or 

(2) Though complete and correct 

when made, is now incomplete or 

incorrect in any material respect. 

(b) Witnesses and exhibits. (1) Within 

5 days after the date set for completion 

of discovery, each party must file an 

updated version of the list of witnesses 

and exhibits required under 

§§ 221.21(c), 221.22(c), or 221.24(c). 

(2) If a party wishes to include any 

new witness or exhibit on its updated 

list, it must provide an explanation of 

why it was not feasible for the party to 

include the witness or exhibit on its list 

under §§ 221.21(c), 221.22(c), or 

221.24(c). 

(c) Failure to disclose. (1) A party that 

fails to disclose information required 

under §§ 221.21(c), 221.22(c), or 

221.24(c), or paragraphs (a) or (b) of this 

section, will not be permitted to 

introduce as evidence at the hearing 

testimony from a witness or other 

information that it failed to disclose. 

(2) Paragraph (c)(1) of this section 

does not apply if the failure to disclose 

was substantially justified or is 

harmless. 

(3) Before or during the hearing, a 

party may object to the admission of 

evidence under paragraph (c)(1) of this 

section. 

(4) The ALJ will consider the 

following in determining whether to 

exclude evidence under paragraphs 

(c)(1) through (c)(3) of this section: 

(i) The prejudice to the objecting 

party; 

(ii) The ability of the objecting party 

to cure any prejudice; 

(iii) The extent to which presentation 

of the evidence would disrupt the 

orderly and efficient hearing of the case; 

(iv) The importance of the evidence; 

and 

(v) The reason for the failure to 

disclose, including any bad faith or 

willfulness regarding the failure. 

§ 221.43 What are the requirements for 

written interrogatories? 

(a) Motion. Except upon agreement of 

the parties, a party wishing to propound 

interrogatories must file a motion under 

§ 221.41(c). 

(b) ALJ order. During or promptly 

after the initial prehearing conference, 

the ALJ will issue an order under 

§ 221.41(b) with respect to any 

discovery motion requesting the use of 

written interrogatories. The order will: 

(1) Grant the motion and approve the 

use of some or all of the proposed 

interrogatories; or 

(2) Deny the motion. 

(c) Answers to interrogatories. Except 

upon agreement of the parties, the party 

to whom the proposed interrogatories 

are directed must file its answers to any 

interrogatories approved by the ALJ 

within 15 days after issuance of the 

order under paragraph (b) of this 

section. 

(1) Each approved interrogatory must 

be answered separately and fully in 

writing. 

(2) The party or its representative 

must sign the answers to interrogatories 

under oath or affirmation. 

(d) Access to records. A party’s 

answer to an interrogatory is sufficient 

when: 

(1) The information may be obtained 

from an examination of records, or from 

a compilation, abstract, or summary 

based on such records; 

(2) The burden of obtaining the 

information from the records is 

substantially the same for all parties; 

(3) The answering party specifically 

identifies the individual records from 

which the requesting party may obtain 

the information and where the records 

are located; and 

(4) The answering party provides the 

requesting party with reasonable 

opportunity to examine the records and 

make a copy, compilation, abstract, or 

summary. 

§ 221.44 What are the requirements for 

depositions? 

(a) Motion and notice. Except upon 

agreement of the parties, a party wishing 

to take a deposition must file a motion 

under § 221.41(c). Any notice of 

deposition filed with the motion must 

state: 

(1) The time and place that the 

deposition is to be taken; 

(2) The name and address of the 

person before whom the deposition is to 

be taken; 

(3) The name and address of the 

witness whose deposition is to be taken; 

and 

(4) Any documents or materials that 

the witness is to produce. 

(b) ALJ order. During or promptly 

after the initial prehearing conference, 

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. 

69848 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

(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)(3) of this section. 

(2) After the deposition has been 

taken, the person recording the 

deposition must: 

(i) Provide a copy of the videotape to 

any party that requests it, at the 

requesting party’s expense; and 

(ii) Attach to the videotape a 

statement identifying the case and the 

deponent and certifying the authenticity 

of the video recording. 

(h) Use of deposition. A deposition 

may be used at the hearing as provided 

in § 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. During or promptly 

after the initial prehearing conference, 

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 file a motion 

requesting the ALJ to issue a subpoena 

to the extent authorized by law for the 

attendance of a person, the giving of 

testimony, or the production of 

documents or other relevant evidence 

during discovery or for the hearing. 

(2) A party may subpoena a senior 

Department employee only if the party 

shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the employee’s attendance 

would not significantly interfere with 

the ability to perform his or her 

government duties. 

(b) Service. (1) A subpoena may be 

served by any person who is not a party 

and is 18 years of age or older. 

(2) Service must be made by hand 

delivering a copy of the subpoena to the 

person named therein. 

(3) The person serving the subpoena 

must: 

(i) Prepare a certificate of service 

setting forth: 

(A) The date, time, and manner of 

service; or 

(B) The reason for any failure of 

service; and 

(ii) Swear to or affirm the certificate, 

attach it to a copy of the subpoena, and 

return it to the party on whose behalf 

the subpoena was served. 

(c) Witness fees. (1) A party who 

subpoenas a witness who is not a party 

must pay him or her the same fees and 

mileage expenses that are paid 

witnesses in the district courts of the 

United States. 

(2) A witness who is not a party and 

who attends a deposition or hearing at 

the request of any party without having 

been subpoenaed to do so is entitled to 

the same fees and mileage expenses as 

if he or she had been subpoenaed. 

However, this paragraph does not apply 

to federal employees who are called as 

witnesses by a Department. 

(d) Motion to quash. (1) A person to 

whom a subpoena is directed may 

request by motion that the ALJ quash or 

modify the subpoena. 

(2) The motion must be filed: 

(i) Within 5 days after service of the 

subpoena; or 

(ii) At or before the time specified in 

the subpoena for compliance, if that is 

less than 5 days after service of the 

subpoena. 

(3) The ALJ may quash or modify the 

subpoena if it: 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69849 

(i) Is unreasonable; 

(ii) Requires evidence during 

discovery that is not discoverable; or 

(iii) Requires evidence during a 

hearing that is privileged or irrelevant. 

(e) Enforcement. For good cause 

shown, the ALJ may apply to the 

appropriate United States District Court 

for the issuance of an order compelling 

the appearance and testimony of a 

witness or the production of evidence as 

set forth in a subpoena that has been 

duly issued and served. 

Hearing, Briefing, and Decision 

§ 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 15 days after 

the date set for completion of discovery. 

(b) On motion by a party or on the 

ALJ’s initiative, the ALJ may change the 

date, time, or place of the hearing if he 

or she finds: 

(1) That there is good cause for the 

change; and 

(2) That the change will not unduly 

prejudice the parties and witnesses. 

§ 221.51 What are the parties’ rights 

during the hearing? 

Consistent with the provisions of this 

subpart, each party has the following 

rights during the hearing, as necessary 

to assure full and accurate disclosure of 

the facts: 

(a) To present direct and rebuttal 

evidence; 

(b) To make objections, motions, and 

arguments; and 

(c) To cross-examine witnesses and to 

conduct re-direct and re-cross 

examination as permitted by the ALJ. 

§ 221.52 What are the requirements for 

presenting testimony? 

(a) Written direct testimony. Unless 

otherwise ordered by the ALJ, all direct 

hearing testimony must be prepared and 

submitted in written form. 

(1) Prepared written testimony must: 

(i) Have line numbers inserted in the 

left-hand margin of each page; 

(ii) Be authenticated by an affidavit or 

declaration of the witness; 

(iii) Be filed within 5 days after the 

date set for completion of discovery, 

unless the ALJ sets a different deadline; 

and 

(iv) Be offered as an exhibit during the 

hearing. 

(2) Any witness submitting written 

testimony must be available for 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 (e) of this 

section, any material offered in 

evidence, other than oral testimony, 

must be offered in the form of an 

exhibit. 

(2) Each exhibit offered by a party 

must be marked for identification. 

(3) Any party who seeks to have an 

exhibit admitted into evidence must 

provide: 

(i) The original of the exhibit to the 

reporter, unless the ALJ permits the 

substitution of a copy; and 

(ii) A copy of the exhibit to the ALJ. 

(b) Material not offered. If a document 

offered as an exhibit contains material 

not offered as evidence: 

(1) The party offering the exhibit 

must: 

(i) Designate the matter offered as 

evidence; 

(ii) Segregate and exclude the material 

not offered in evidence, to the extent 

practicable; and 

(iii) Provide copies of the entire 

document to the other parties appearing 

at the hearing. 

(2) The ALJ must give the other 

parties an opportunity to inspect the 

entire document and offer in evidence 

any other portions of the document. 

(c) Official notice. (1) At the request 

of any party at the hearing, the ALJ may 

take official notice of any matter of 

which the courts of the United States 

may take judicial notice, including the 

public records of NMFS and any other 

Department party. 

(2) The ALJ must give the other 

parties appearing at the hearing an 

opportunity to show the contrary of an 

officially noticed fact. 

(3) Any party requesting official 

notice of a fact after the conclusion of 

the hearing must show good cause for 

its failure to request official notice 

during the hearing. 

(d) Stipulations. (1) The parties may 

stipulate to any relevant facts or to the 

authenticity of any relevant documents. 

(2) If received in evidence at the 

hearing, a stipulation is binding on the 

stipulating parties. 

(3) A stipulation may be written or 

made orally at the hearing. 

§ 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. 

69850 Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 

(b) Objections. Any party objecting to 

the admission or exclusion of evidence 

shall concisely state the grounds. A 

ruling on every objection must appear in 

the record. 

§ 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 What is the standard of proof? 

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 10 days after 

the close of the hearing, unless the ALJ 

sets a different deadline. 

(2) A party may file a reply brief only 

if requested by the ALJ. The deadline for 

filing a reply brief, if any, will be set by 

the ALJ. 

(3) The ALJ may limit the length of 

the briefs to be filed under this section. 

(b) Content. (1) An initial brief must 

include: 

(i) A concise statement of the case; 

(ii) A separate section containing 

proposed findings regarding the issues 

of material fact, with supporting 

citations to the hearing record; 

(iii) Arguments in support of the 

party’s position; and 

(iv) Any other matter required by the 

ALJ. 

(2) A reply brief, if requested by the 

ALJ, must be limited to any issues 

identified by the ALJ. 

(c) Form. (1) An exhibit admitted in 

evidence or marked for identification in 

the record may not be reproduced in the 

brief. 

(i) Such an exhibit may be 

reproduced, within reasonable limits, in 

an appendix to the brief. 

(ii) Any pertinent analysis of an 

exhibit may be included in a brief. 

(2) If a brief exceeds 20 pages, it must 

contain: 

(i) A table of contents and of points 

made, with page references; and 

(ii) An alphabetical list of citations to 

legal authority, with page references. 

§ 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) 90 days after issuance of the 

referral notice under § 221.25(c), 7 CFR 

1.625(c), or 43 CFR 45.25(c). 

(b) Content. (1) The decision must 

contain: 

(i) Findings of fact on all disputed 

issues of material fact; 

(ii) Conclusions of law necessary to 

make the findings of fact (such as 

rulings on materiality and on the 

admissibility of evidence); and 

(iii) Reasons for the findings and 

conclusions. 

(2) The ALJ may adopt any of the 

findings of fact proposed by one or more 

of the parties. 

(3) The decision will not contain 

conclusions as to whether any 

preliminary condition or prescription 

should be adopted, modified, or 

rejected, or whether any proposed 

alternative should be adopted or 

rejected. 

(c) Service. Promptly after issuing his 

or her decision, the ALJ must: 

(1) Serve the decision on each party 

to the hearing; and 

(2) Forward a copy of the decision to 

FERC, along with the complete hearing 

record, for inclusion in the license 

proceeding record. 

(d) Finality. The ALJ’s decision under 

this section will be final, with respect to 

the disputed issues of material fact, for 

NMFS and any other Department 

involved in the hearing. To the extent 

the ALJ’s decision forms the basis for 

any condition or prescription 

subsequently included in the license, it 

may be subject to judicial review under 

16 U.S.C. 825l(b). 

Subpart C—Alternatives Process 

§ 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 served on 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) and 

(e) regarding acknowledgment and 

certificate of service apply to service 

under this subpart. 

§ 221.71 How do I propose an alternative? 

(a) General. To propose an alternative, 

you must: 

(1) Be a license party; and 

(2) File a written proposal with the 

Office of Habitat Conservation within 30 

days after the deadline for NMFS to file 

preliminary prescriptions with FERC. 

(b) Content. Your proposal must 

include: 

(1) A description of the alternative, in 

an equivalent level of detail to NMFS’s 

preliminary prescription; 

(2) An explanation of how the 

alternative will be no less protective 

than the fishway prescribed by NMFS; 

(3) An explanation of how the 

alternative, as compared to the 

preliminary prescription, will: 

(i) Cost significantly less to 

implement; or 

(ii) Result in improved operation of 

the project works for electricity 

production; 

(4) An explanation of how the 

alternative will affect: 

(i) Energy supply, distribution, cost, 

and use; 

(ii) Flood control; 

(iii) Navigation; 

(iv) Water supply; 

(v) Air quality; and 

(vi) Other aspects of environmental 

quality; and 

(5) Specific citations to any scientific 

studies, literature, and other 

documented information relied on to 

Federal Register / Vol. 70, No. 221 / Thursday, November 17, 2005 / Rules and Regulations 69851 

support your proposal, including any 

assumptions you are making (e.g., 

regarding the cost of energy or the rate 

of inflation). If any such document is 

not already in the license proceeding 

record, you must provide a copy with 

the proposal. 

§ 221.72 What will NMFS do with a 

proposed alternative? 

If any license party proposes an 

alternative to a preliminary prescription 

under § 221.71(a)(1), NMFS must do the 

following within 60 days after the 

deadline for filing comments to FERC’s 

NEPA document under 18 CFR 5.25(c): 

(a) Analyze the alternative under 

§ 221.73; and 

(b) File with FERC: 

(1) Any prescription that NMFS 

adopts as its modified prescription; and 

(2) Its analysis of the modified 

prescription and any proposed 

alternatives under § 221.73(c). 

§ 221.73 How will NMFS analyze a 

proposed alternative and formulate its 

modified prescription? 

(a) In deciding whether to adopt a 

proposed alternative, NMFS must 

consider evidence and supporting 

material provided by any license party 

or otherwise available to NMFS 

including: 

(1) Any evidence on the 

implementation costs or operational 

impacts for electricity production of the 

proposed alternative; 

(2) Any comments received on 

NMFS’s preliminary prescription; 

(3) Any ALJ decision on disputed 

issues of material fact issued 

under§ 221.60 with respect to the 

preliminary prescription; 

(4) Comments received on any draft or 

final NEPA documents; and 

(5) The license party’s proposal under 

§ 221.71. 

(b) NMFS must adopt a proposed 

alternative if NMFS determines, based 

on substantial evidence provided by any 

license party or otherwise available to 

NMFS, that the alternative will be no 

less protective than NMFS’s preliminary 

prescription and will, as compared to 

NMFS’s preliminary prescription: 

(1) Cost significantly less to 

implement; or 

(2) Result in improved operation of 

the project works for electricity 

production. 

(c) When NMFS files with FERC the 

prescription that NMFS adopts as its 

modified prescription under 

§§ 221.72(b), it must also file: 

(1) A written statement explaining: 

(i) The basis for the adopted 

prescription; and 

(ii) If NMFS is not adopting any 

alternative, its reasons for not doing so; 

and 

(2) Any study, data, and other factual 

information relied on that is not already 

part of the licensing proceeding record. 

(d) The written statement under 

paragraph (c)(1) of this section must 

demonstrate that NMFS gave equal 

consideration to the effects of the 

prescription adopted and any 

alternative prescription not adopted on: 

(1) Energy supply, distribution, cost, 

and use; 

(2) Flood control; 

(3) Navigation; 

(4) Water supply; 

(5) Air quality; and 

(6) Preservation of other aspects of 

environmental quality. 

§ 221.74 Has OMB approved the 

information collection provisions of this 

subpart? 

Yes. This rule contains provisions 

that would collect information from the 

public. It therefore requires approval by 

the Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. 

(PRA). According to the PRA, a Federal 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a collection of information unless it 

displays a currently valid OMB control 

number that indicates OMB approval. 

OMB has reviewed the information 

collection in this rule and approved it 

under OMB control number 1094–0001. 

[FR Doc. 05–22677 Filed 11–16–05; 8:45 am] 

BILLING CODE 3410–11–P; 4310–79–P; 3510–22–P