# Resource Agency Procedures for Conditions and Prescriptions in Hydropower Licenses > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A05-22677 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** November 17, 2005 - **Citation:** 70 FR 69804 ## Text 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 East-West Highway, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Greg Smith, Director of Lands, Forest Service, U.S. Department of Agriculture, 202-205-1769; or Larry Finfer, Office of Policy Analysis, Department of the Interior, 202-208-5978; or Melanie Harris, Office of Habitat Conservation, National Marine Fisheries Service, 301-713-4300. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: I. Public Comments If you wish to comment on these interim final rules, you may submit your comments by any of the methods listed in the ADDRESSES section above. We will consider all comments received by the deadline stated in the DATES section above. Based on the comments received and the initial results of implementation, we will consider promulgation of revised final rule within 18 months of the effective date of this rule. Please make your comments as specific as possible and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the rules that you are addressing. We will make comments available for public review during regular business hours. To review the comments, you may contact any of the individuals listed in the FOR FURTHER INFORMATION CONTACT section above. Individual respondents may request that we withhold their home address from the rulemaking record. We will honor the request to the extent allowable by law. In some circumstances we may withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. II. Background A. Energy Policy Act of 2005 (EPAct). The rules that Agriculture, Interior, and Commerce are publishing today implement section 241 of EPAct, Public Law 109-58, which the President signed into law on August 8, 2005. EPAct, which passed by wide margins in both Houses, was the product of years of Congressional hearings, amendments, and debates. The issues underlying section 241 were extensively considered by the 109th Congress and several previous Congresses. Section 241 amends sections 4(e) and 18 of the Federal Power Act (FPA), 16 U.S.C. 797(e), 811, to provide that any party to a license proceeding is entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, of any disputed issues of material fact with respect to any agency's mandatory conditions or prescriptions. Section 241 further mandates that, within 90 days of the date of enactment of EPAct, the three Departments establish jointly, by rule and in consultation with FERC, procedures for the expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses. Section 241 of EPAct also adds a new section 33 to the FPA that allows the license applicant or any other party to the license proceeding to propose an alternative condition or prescription. The Secretary of the agency involved must accept the proposed alternative if the Secretary determines, based on substantial evidence provided by a party to the license proceeding or otherwise available to the Secretary, (a) that the alternative condition provides for the adequate protection and utilization of the reservation, or that the alternative prescription will be no less protective than the fishway initially proposed by the Secretary, and (b) that the alternative will either cost significantly less to implement or result in improved operation of the project works for electricity production. New FPA section 33 further provides that, following the consideration of alternatives, the Secretary must file with FERC a statement explaining his or her reasons for accepting or rejecting any alternatives and the basis for any modified conditions or prescriptions to be included in the license. If FERC finds that the modified conditions or prescriptions would be inconsistent with the purposes of the FPA or other applicable law, it may refer the matter to its Dispute Resolution Service (DRS). The DRS is to consult with the Secretary and FERC and issue a non-binding advisory within 90 days, following which the Secretary is to make a final written determination on the conditions or prescriptions. This preamble explains how the Departments will comply with EPAct's requirements for trial-type hearings and for the receipt and analysis of alternative conditions and prescriptions. As explained further below, these new rights are being made available immediately to any license applicant or other party to a license proceeding for which the license has not already been issued as of the effective date of these rules. B. FERC's licensing process for hydroelectric power projects. On August 25, 2003, FERC published a final rule amending its regulations at 18 CFR part 5 for licensing hydroelectric power projects to establish a new licensing process known as the integrated licensing process (ILP). 68 FR 51070. The amendments were the culmination of efforts by FERC, other Federal and State agencies, Indian Tribes, licensees, and members of the public to develop a more efficient and timely licensing process, while ensuring that licenses provide appropriate resource protections required by the FPA and other applicable laws. 68 FR 51070. Two other processes, the traditional licensing process (TLP) and the alternative licensing process (ALP), are also available; but the ILP is the default process and FERC's permission must be obtained to use the TLP or ALP. Id. The FPA's resource protection provisions include sections 4(e), 10(a)(1), 10(j), and 18, 16 U.S.C. 797(e), 803(a)(1), 803(j), and 811. Section 10(a)(1) provides that hydropower licenses must be best adapted to a comprehensive plan for improving or developing the affected waterways for all beneficial public uses, and must include provisions for the protection of fish and wildlife and other beneficial public uses. Section 10(j) provides that Interior and Commerce may make recommendations to FERC on conditions for the protection, mitigation, and enhancement of fish and wildlife affected by the project. FERC must include those conditions in the license unless it finds that they would be inconsistent with the purposes and requirements of the FPA or other applicable law, and that conditions selected by FERC will adequately protect, mitigate damages to, and enhance fish and wildlife. Under FPA section 4(e), licenses for projects located within Federal reservations must include conditions mandated by the Department that manages the reservation, which in most cases is Agriculture or Interior. Section 4(e) also requires FERC to give environmental values, including fish and wildlife and recreation, equal consideration with hydropower development. Under section 18, licenses must also include fishways if they are prescribed by Interior or Commerce. As provided in section 1701(b) of the Energy Policy Act of 1992, Public Law 102-486, “the items which may constitute a ‘fishway’ under section 18 for the safe and timely upstream and downstream passage of fish shall be limited to physical structures, facilities, or devices necessary to maintain all life stages of such fish, and project operations and measures related to such structures, facilities, or devices which are necessary to ensure the effectiveness of such structures, facilities, or devices for such fish.” The ILP is a multi-year process—involving more than 20 sequential steps, most with associated deadlines—that constitutes a logical progression of information development, exchange, and analysis involving FERC, other Federal and State agencies, Indian Tribes, the license applicant, and members of the public. The ILP brings together activities that previously were conducted over a much longer time frame, including consultation, studies, dispute resolution, scoping and document preparation under the National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA), and water quality certification. There are two main phases to the process: (1) A pre-application phase involving activities before the filing with FERC of a license application, and (2) a post-application phase. The process begins with the applicant's filing with FERC a notice of intent (NOI) to file an application for an original, new, or subsequent license. 18 CFR 5.5. The NOI must be filed 5-5 1/2 years before the existing license expires. 18 CFR 5.5(d). Along with the NOI, the applicant must file a pre-application document providing available information on engineering, economics, and the existing environment, including data or studies relevant to the environment and known and potential impacts of the proposed project on various resources. 18 CFR 5.6. Other steps in the pre-application phase include FERC's issuance of a scoping document, holding of a scoping meeting, and issuance of a process plan and schedule. 18 CFR 5.8. During these steps, resource issues and the need for information and studies are identified, and the scoping of issues under NEPA is initiated. 18 CFR 5.8. Eventually, the applicant files a proposed study plan, the plan is assessed through meetings and comments, and the applicant files a revised study plan for FERC's approval. 18 CFR 5.11-.13. After FERC's approval, the plan may be subject to a study dispute resolution process if disputes arise. 18 CFR 5.14. Approximately 1 year elapses from issuance of the NOI to final approval of a study plan. Studies are then conducted, reviewed, and modified if necessary. 18 CFR 5.13-.15. Studies may extend for more than one season. After completion of the studies, the applicant files a preliminary licensing proposal, which is subject to comment and additional information requests. 18 CFR 5.16. At least 2 years before the existing license expires, the application must be filed with FERC. 18 CFR 5.17(a). Within 14 days of that filing, FERC must issue public notice of the filing and a preliminary schedule for expeditious processing of the application, including dates for the following steps: Filing of preliminary conditions and prescriptions by the Departments; issuance of an environmental 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 deadline for the modified conditions and prescriptions. 7. FERC issues the license order with any conditions and prescriptions. Under these rules on trial-type hearings and alternative conditions and prescriptions, the following actions will occur within the steps listed above for FERC's licensing process. The hearing and alternatives processes are separate and distinct, but they have a few common points of reference, as noted below. 1. FERC issues its REA notice, starting the 60-day period for responses. 2. By the end of the 60-day period, the Departments will submit any preliminary conditions and prescriptions they have developed. 2a. The parties will have 30 days to request a hearing on any disputed issues of material fact. The parties will have the same 30 days to submit alternative conditions and prescriptions. 2b. The parties will have 15 days after hearing requests are due to file a notice of intervention and response with regard to any other party's hearing request. 2c. The Departments will have 30 days after responses are due to determine whether to stipulate to some or all of the facts alleged to be in dispute and to file an answer to the hearing request. During the same period, the Departments will consider whether any proposed alternative condition or prescription could preclude the need for a hearing. 2d. If there is still a need for a hearing, the Departments will refer the case to an administrative law judge (ALJ). 2e. Within 90 days, the ALJ will conduct the hearing process on any disputed issues of material fact. The process will include an initial prehearing conference, discovery, an evidentiary hearing for the parties to present their evidence and cross-examine witnesses, the submission of post-hearing briefs, and issuance of a final decision. 3. FERC will issue its draft NEPA document, which will include for comment the Departments' preliminary conditions and prescriptions and any alternatives proposed by the parties. 4. The parties and the Departments will submit their comments on the draft NEPA document, using the facts as found by the ALJ. 4a. The Departments will consider and analyze comments received on their preliminary conditions and prescriptions, the ALJ's decision on disputed issues of material fact, comments received on the draft NEPA document, and any alternative conditions and prescriptions. 5. The Departments will issue their modified conditions and prescriptions and file their analysis of the alternatives within 60 days of the close of the comment period on FERC's draft NEPA document. 5a. FERC will evaluate the modified conditions and prescriptions in light of the purposes of the FPA and other applicable law. If it finds they are inconsistent, FERC may refer the matter to the DRS. 5b. The DRS will consult with the Departments and FERC and issue a non-binding advisory within 90 days. 5c. The Departments will consider the DRS advisory and issue a final written determination on the conditions and prescriptions. 6. FERC will issue its final NEPA document. 7. FERC will issue the license order with any mandatory conditions and prescriptions. This approach has several benefits for the parties, FERC, and the Departments. It provides for the submission of alternative conditions and prescriptions in time for FERC to include them in its draft NEPA document and for the Departments to consider them along with any hearing requests and responses from other parties. This will enable each Department to consider at an early stage whether it wants to accept a proposed alternative and possibly avoid the need for a hearing under these rules. Having the hearing requests, responses, and alternatives together will also assist the Departments in deciding whether to stipulate to some facts alleged to be in dispute or otherwise try to narrow the issues to be heard. Moreover, since the hearing process will be completed by the time FERC issues its draft NEPA document, the parties will have the benefit of the ALJ's decision in preparing their comments on that document. The Departments will likewise have the ALJ's decision to use in analyzing the alternatives and developing their modified conditions and prescriptions within FERC's time frame. In many cases, this sequence and timing will need to be adjusted with respect to any license application that is currently pending before FERC, if the license applicant or another party wants a trial-type hearing or wants to submit an alternative condition or prescription. A number of pending applications are already past the early steps listed above. In such cases, the Departments will work with FERC and the parties to fit the hearing and alternatives processes into the remaining steps. F. Overview of the hearing process. As noted previously, section 241 of EPAct provides that “[t]he license applicant and any party to the proceeding shall be entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, on any disputed issues of material fact” with respect to any Department's conditions or prescriptions. “All disputed issues of material fact raised by any party shall be determined in a single trial-type hearing to be conducted by the relevant resource agency * * *.” The three Departments are required to “establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses * * *.” In the Departments' experience, full administrative adjudications involving prehearing conferences, discovery, motions, one or more evidentiary hearings, briefing, and a decision often take over a year to complete, especially if the case involves multiple parties and complex technical issues. Shortening this process to 90 days will be a significant challenge for the parties and the ALJ, and will require adherence to fairly stringent procedural limits and deadlines. Under these rules, the 90-day period for the hearing process will commence when the case is referred to an ALJ for a hearing, and will end when the ALJ issues his or her decision. During that period, at least one prehearing conference will be held; discovery will be conducted as approved by the ALJ or agreed to by the parties; evidence, including direct written testimony and oral cross-examination, will be presented at a hearing; post-hearing briefs will be filed; and a decision will be issued by the ALJ. As described in section II.E. above, before the case is referred for a hearing, each Department will have filed with FERC its preliminary conditions or prescriptions, with supporting rationale and an index to the administrative record of supporting documents. Any party to the FERC license proceeding may then file with the appropriate Department a request for hearing, identifying the material facts that are disputed regarding the preliminary conditions or prescriptions. Other parties to the license proceeding may then submit responses to any hearing request and intervene in the hearing process. The Department involved will review the parties' submissions to determine whether to stipulate to any facts as stated by the parties, object that any issue raised by a party either is not factual ( i.e. , is a legal conclusion or a policy determination) or is not material, or agree that the issues raised are factual, material, and disputed. Unless all disputed issues have been resolved, the Department will refer the case to an ALJ for a hearing. If two or more Departments file preliminary conditions and/or prescriptions and receive hearing requests, they will consult with each other to determine whether the requests should be consolidated for hearing. In accordance with EPAct, a single hearing will be held for all conditions issued by one Department (section 241(a)) or for all prescriptions issued by one Department (section 241(b)). While EPAct does not mandate the consolidation of hearing requests in other circumstances, the Departments expect to consolidate the cases if there are common issues of fact. In that event, one ALJ would be designated to conduct the consolidated hearing on behalf of the Departments involved. G. Overview of the alternatives process. While the specific alternatives process added by section 241 of EPAct is new, for years the Departments have received and considered alternatives from license parties on an informal basis, and have revised preliminary conditions and prescriptions as new information was received. Under the new process, whether or not a license party requests a hearing, it may submit one or more conditions or prescriptions for consideration by the appropriate Department as an alternative to any preliminary conditions or prescription that the Department has filed. The alternatives are due 30 days after the deadline for the Departments to file their preliminary conditions and prescriptions, which will allow FERC to include the alternatives in its draft NEPA document. If any party has requested a hearing on disputed issues of material fact with respect to a preliminary condition or prescription, the ALJ's decision will generally be issued shortly before FERC issues its draft NEPA document. The Departments will use the comment period on the draft NEPA document to review their preliminary conditions and prescriptions in light of the findings of fact from the ALJ. Within 60 days of the end of the comment period on FERC's draft NEPA document, each Department will formally analyze the alternative conditions and/or prescriptions it has received, together with the ALJ's findings of fact, comments received on the preliminary conditions and prescriptions, and comments received on FERC's draft NEPA document. The Department will then issue its modified conditions or prescriptions and file the written statement required by FPA section 33(a)(4) or (b)(4). The written statement must explain the basis for the modified conditions or prescriptions and, if the Department did not accept an alternative condition or prescription, its reasons for not doing so. As provided in section 33, the statement must demonstrate that the Department gave equal consideration to the effects of its modified conditions or prescriptions and any alternatives not accepted “on energy supply, distribution, cost, and use; flood control; navigation; water supply; and air quality (in addition to the preservation of other aspects of environmental quality) * * *.” The requirement for “equal consideration” has been construed under FPA section 4(e) to mean that each factor must be considered equally with the others, i.e. , given “ ‘full and genuine consideration * * *’ ” State of California v. FERC , 966 F.2d 1541, 1550 (9th Cir. 1992), quoting from legislative history at 123 Cong. Rec. S. 15107. “Equal consideration” is not the same as “equal treatment”; rather the agency “must balance the public interest in all of its stated dimensions, give equal consideration to conflicting interests, and reach a reasoned factual decision.” Id.; accord Conservation Law Found. v. FERC , 216 F.3d 41 (D.C. Cir. 2000); see also U.S. Dept. of Interior v. FERC , 952 F.2d 538 (D.C. Cir. 1992). III. Section-by-Section Analysis There are three different versions of the regulations that follow for the trial-type hearing and alternatives process, one version each for Agriculture, Interior, and Commerce. The structure and content of the regulations are the same, but there are minor variations to account for differences in the names of the Departments and their organizational components. The three versions also vary somewhat in their references to conditions and prescriptions, since Agriculture does not develop prescriptions under FPA section 18 and Commerce does not develop conditions under FPA section 4(e), while Interior may do either or both. For each section discussed below, the CFR title, section number, and heading for each Department are shown, 7 CFR for Agriculture, 43 CFR for Interior, and 50 CFR for Commerce. General Provisions 7 CFR 1.601 What is the purpose of this subpart, and to what license proceedings does it apply? 43 CFR 45.1 What is the purpose of this part, and to what license proceedings does it apply? 50 CFR 221.1 What is the purpose of this part, and to what license proceedings does it apply? Paragraph (a) of this section explains the basic purpose of the trial-type hearing regulations. It further explains that, if two or more Departments consolidate hearing requests involving the same license application, the regulations of one Department may govern the steps preceding the referral of the case to an ALJ, while the (substantively identical) regulations of another Department may govern the steps following the referral of the case to an ALJ. Paragraph (b) explains the basic purpose of the alternative process regulations. Paragraph (c) covers situations in which a Department does not exercise its authority to submit conditions or prescriptions for inclusion in the license, but reserves the authority to do so during the term of the license, e.g., if conditions change or the Department obtains additional information. If the Department notifies FERC that it is reserving its authority, the hearing and alternatives processes under these rules will be available to the license parties if and when the Department subsequently exercises its reserved authority. The license parties cannot request a hearing regarding the reservation of authority itself, or submit alternatives to such reservation. Paragraph (d) provides that these regulations apply to any hydropower license proceeding for which the license has not been issued as of the effective date of these rules and for which the Department involved has developed or develops one or more preliminary conditions, conditions, preliminary prescriptions, or prescriptions. A cross reference to 7 CFR 1.604, 43 CFR 45.4, or 50 CFR 221.4 is included for license applications that are pending as of the effective date of these rules. 7 CFR 1.602 What terms are used in this subpart? 43 CFR 45.2 What terms are used in this part? 50 CFR 221.2 What terms are used in this part? This section defines the meaning of various terms used in the regulations. Most of the definitions provided are self-explanatory, but a few deserve further discussion. “Intervention” is defined as a process by which a person who did not request a hearing under 7 CFR 1.621, 43 CFR 45.21, or 50 CFR 221.21 can participate as a party in the hearing by filing a notice of intervention and response 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? 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 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 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, rather than compiling the information for the requesting party. 7 CFR 1.644 What are the requirements for depositions? 43 CFR 45.44 What are the requirements for depositions? 50 CFR 221.44 What are the requirements for depositions? If the ALJ grants a motion to depose a person, this section provides that the party taking the deposition must arrange and pay for the reporter. Other standard provisions relating to the taking, transcription, and signing of a deposition are detailed. If approved by the ALJ, a deposition may be taken by conference call or may be video recorded. 7 CFR 1.645 What are the requirements for requests for documents or tangible things or entry on land? 43 CFR 45.45 What are the requirements for requests for documents or tangible things or entry on land? 50 CFR 221.45 What are the requirements for requests for documents or tangible things or entry on land? If the ALJ grants a motion to use requests for production of documents or tangible things or entry on land, this section provides that the other party must file a response within 15 days. 7 CFR 1.646 What sanctions may the ALJ impose for failure to comply with discovery? 43 CFR 45.46 What sanctions may the ALJ impose for failure to comply with discovery? 50 CFR 221.46 What sanctions may the ALJ impose for failure to comply with discovery? This section states that, if a party fails to comply with an order approving discovery, the ALJ may impose appropriate sanctions, such as not allowing the party to introduce evidence that was improperly withheld or inferring that the information withheld would have been adverse to the party. 7 CFR 1.647 What are the requirements for subpoenas and witness fees? 43 CFR 45.47 What are the requirements for subpoenas and witness fees? 50 CFR 221.47 What are the requirements for subpoenas and witness fees? This section contains standard provisions regarding the issuance, service, and enforcement of a subpoena, to the extent authorized by law; payment of witness fees; and motions to quash. A limitation on subpoenaing senior Department employees is included, comparable to 7 CFR 1.641(h)(3), 43 CFR 45.41(h)(3), or 50 CFR 221.41(h)(3) discussed above. Hearing, Briefing, and Decision 7 CFR 1.650 When and where will the hearing be held? 43 CFR 45.50 When and where will the hearing be held? 50 CFR 221.50 When and where will the hearing be held? This section states that the hearing will be held at the time and place set during the prehearing conference, generally within 15 days after the completion of discovery, unless the ALJ orders otherwise. 7 CFR 1.651 What are the parties' rights during the hearing? 43 CFR 45.51 What are the parties' rights during the hearing? 50 CFR 221.51 What are the parties' rights during the hearing? This section acknowledges the parties' rights at the hearing to present direct and rebuttal evidence; to make objections, motions, and arguments; and to cross-examine witnesses. 7 CFR 1.652 What are the requirements for presenting testimony? 43 CFR 45.52 What are the requirements for presenting testimony? 50 CFR 221.52 What are the requirements for presenting testimony? Paragraph (a) of this section requires the parties to submit any direct testimony in writing within 5 days after the date set for completion of discovery (generally 10 days before the hearing). Submission of written direct testimony in advance will assist the parties in preparing their cases and will expedite the hearing process, given the short time available for both discovery and the hearing. Under paragraph (b), cross-examination and re-direct will be conducted orally at the hearing. Under paragraph (c), the ALJ may allow a witness to testify by conference call. 7 CFR 1.653 How may a party use a deposition in the hearing? 43 CFR 45.53 How may a party use a deposition in the hearing? 50 CFR 221.53 How may a party use a deposition in the hearing? This section contains standard provisions for the admissibility of a deposition of a witness who is unavailable to testify at the hearing. 7 CFR 1.654 What are the requirements for exhibits, official notice, and stipulations? 43 CFR 45.54 What are the requirements for exhibits, official notice, and stipulations? 50 CFR 221.54 What are the requirements for exhibits, official notice, and stipulations? This section contains standard provisions on marking and offering exhibits, asking the ALJ to take official notice of public documents, and using stipulations regarding facts or the authenticity of documents. 7 CFR 1.655 What evidence is admissible at the hearing? 43 CFR 45.55 What evidence is admissible at the hearing? 50 CFR 221.55 What evidence is admissible at the hearing? This section contains standard provisions on the admissibility of written, oral, documentary, or demonstrative evidence that is relevant, reliable, and probative, and not privileged or unduly repetitious or cumulative. As is typical in administrative proceedings, the rules of evidence used in Federal courts do not apply, and hearsay evidence is admissible. However, the Federal Rules of Evidence may be used as guidance by the ALJ and the parties in determining what evidence is relevant, reliable, probative, and not privileged. Evidentiary objections will be ruled on by the ALJ. 7 CFR 1.656 What are the requirements for transcription of the hearing? 43 CFR 45.56 What are the requirements for transcription of the hearing? 50 CFR 221.56 What are the requirements for transcription of the hearing? This section contains standard provisions on transcripts and reporter's fees, including correction of the transcript. 7 CFR 1.657 What is the standard of proof? 43 CFR 45.57 What is the standard of proof? 50 CFR 221.57 What is the standard of proof? In accordance with the holding in Steadman v. SEC, 450 U.S. 91 (1981), this section establishes that the standard of proof is a preponderance of the evidence. Comments are sought on the separate question of who bears the burden of proof. 7 CFR 1.658 When will the hearing record close? 43 CFR 45.58 When will the hearing record close? 50 CFR 221.58 When will the hearing record close? This section states that the hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise. No evidence may be submitted once the record closes. 7 CFR 1.659 What are the requirements for post-hearing briefs? 43 CFR 45.59 What are the requirements for post-hearing briefs? 50 CFR 221.59 What are the requirements for post-hearing briefs? 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. 825 l (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 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 trial-type hearing on disputed issues of material fact represent a novel approach to public participation and administrative review and have interagency implications. Therefore, OMB has reviewed these rules under Executive Order 12866. 1. These rules will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, competition, jobs, the environment, public health or safety, or other units of government. A cost-benefit and economic analysis is not required. The Departments expect about 47 requests for hearing per year under the rules, each requiring about 800 hours of additional work by the requesters and 600 hours for other parties to the hearing process. The Departments expect about 351 alternative conditions and prescriptions to be proposed per year under the rules, each requiring about 200 hours of additional work by the proponent and 120 hours for other parties to the alternatives process. Staff costs for 47 hearing requests and 351 alternatives per year are estimated at $5 million and hence clearly fall well short of $100 million. This conclusion also holds in a worst-case analysis: if a hearing was requested and an alternative was proposed for every set of preliminary conditions or prescriptions, there would be about 97 hearings per year and 701 alternatives to analyze. Furthermore, because the decision to request a hearing or propose an alternative is entirely at the discretion of the party, any cost to the party will be incurred only when the party decides that the cost will be justified by the benefits of the process. 2. These rules will not create inconsistencies with or interfere with other agencies' actions. Agencies other than the three Departments and FERC will not be affected by the hearing process authorized by the rules; and the rules have been crafted to avoid any inconsistencies or interference with the actions of the three Departments and FERC. 3. These rules will not alter the budgetary effects of entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. These rules pertain only to the hearing procedures implementing recent amendments to the FPA, not to entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. 4. The assessment of OMB is that the rules raise novel policy issues, in that the expedited trial-type hearing process represents a novel approach to public participation and administrative review. D. Regulatory Flexibility Act. The Departments certify that these rules will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. These rules will not affect a substantial number of small entities. According to the Small Business Administration, for NAICS code 221111, hydroelectric power generation, a firm is small if, including its affiliates, its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. Although the regulated community of FERC licensees does include a substantial number of small entities, the number of affected entities in a given year is likely to be small, perhaps three to six per year. More important, the effect of the rules on small entities will not be significant. Any entity affected by these rules will have already been heavily involved in a FERC hydropower licensing proceeding, submitting and commenting on 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 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? 1.625 What will the Forest Service do with any hearing requests? 1.626 What regulations apply to a case referred for a hearing? General Provisions Related to Hearings 1.630 What will OALJ do with a case referral? 1.631 What are the powers of the ALJ? 1.632 What happens if the ALJ becomes unavailable? 1.633 Under what circumstances may the ALJ be disqualified? 1.634 What is the law governing ex parte communications? 1.635 What are the requirements for motions? Prehearing Conferences and Discovery 1.640 What are the requirements for prehearing conferences? 1.641 How may parties obtain discovery of information needed for the case? 1.642 When must a party supplement or amend information it has previously provided? 1.643 What are the requirements for written interrogatories? 1.644 What are the requirements for depositions? 1.645 What are the requirements for requests for documents or tangible things or entry on land? 1.646 What sanctions may the ALJ impose for failure to comply with discovery? 1.647 What are the requirements for subpoenas and witness fees? Hearing, Briefing, and Decision 1.650 When and where will the hearing be held? 1.651 What are the parties' rights during the hearing? 1.652 What are the requirements for presenting testimony? 1.653 How may a party use a deposition in the hearing? 1.654 What are the requirements for exhibits, official notice, and stipulations? 1.655 What evidence is admissible at the hearing? 1.656 What are the requirements for transcription of the hearing? 1.657 What is the standard of proof? 1.658 When will the hearing record close? 1.659 What are the requirements for post-hearing briefs? 1.660 What are the requirements for the ALJ's decision? Alternatives Process 1.670 How must documents be filed and served under §§ 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 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 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 8 1/2 by 11 inches, except that a table, chart, diagram, or other attachment may be larger if folded to 8 1/2 by 11 inches and attached to the document; (2) Be printed on just one side of the page; (3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies; (4) Use 10 point font size or larger; (5) Be double-spaced except for footnotes and long quotations, which may be single-spaced; (6) Have margins of at least 1 inch; and (7) Be bound on the left side, if bound. (b) Caption. Each document filed under §§ 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; (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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A05-22677. Public record. Not legal advice.