# Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-06280 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 31, 2015 - **Citation:** 80 FR 17156 ## 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.: DOI-2015-0001] RINs 0596-AC42, 1090-AA91, and 0648-AU01 Resource Agency Hearings and Alternatives Development Procedures in Hydropower Licenses AGENCIES: Office of the Secretary, Agriculture; Office of the Secretary, Interior; National Oceanic and Atmospheric Administration, Commerce. ACTION: Revised interim rules with request for comment. SUMMARY: The Departments of Agriculture, the Interior, and Commerce are jointly revising the procedures they established in November 2005 for expedited trial-type hearings required by the Energy Policy Act of 2005. The hearings are conducted to expeditiously resolve disputed issues of material fact with respect to conditions or prescriptions developed for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission under the Federal Power Act. The Departments are also revising the procedures for considering alternative conditions and prescriptions submitted by a party to a license proceeding. DATES: Effective date: These rules are effective on April 30, 2015. Comment date: You should submit your comments by June 1, 2015. ADDRESSES: You may submit comments, identified by any of the Regulation Identifier Numbers (RINs) shown above (0596-AC42, 1090-AA91, or 0648-AU01), by either of the methods listed below. Comments submitted to any one of the three Departments will be shared with the others, so it is not necessary to submit comments to all three Departments. 1. Federal rulemaking portal: http://www.regulations.gov . Follow the instructions for submitting comments on-line. 2. Mail or hand delivery to any of the following: a. Deputy Chief, National Forest Systems, c/o WO Lands Staff, Department of Agriculture, Mail stop 1124, 1400 Independence Avenue SW., Washington, DC 20250-1124; b. Office of Hearings and Appeals, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203; or c. Chief, Habitat Protection Division, Office of Habitat Conservation, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Washington Office Director, Lands and Realty Management, Forest Service, U.S. Department of Agriculture, 202-205-1769; John Rudolph, Solicitor's Office, Department of the Interior, 202-208-3553; or Melanie Harris, Office of Habitat Conservation, National Marine Fisheries Service, 301-427-8636. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: I. Executive Summary The Departments of Agriculture, the Interior, and Commerce (the Departments) are revising the interim final rules they published jointly in November 2005 to implement section 241 of the Energy Policy Act of 2005. That section created additional procedures applicable to conditions or prescriptions that a Department develops for inclusion in a hydropower license issued by Federal Energy Regulatory Commission (FERC). Specifically, section 241 amended sections 4 and 18 of the Federal Power Act (FPA) to provide for trial-type hearings on disputed issues of material fact with respect to a Department's conditions or prescriptions; and it added a new section 33 to the FPA, allowing parties to propose alternative conditions and prescriptions. The Departments are promulgating three substantially similar rules—one for each agency—with a common preamble. The rules and preamble address a few issues that were left open in the 2005 rulemaking, such as who has the burden of proof in a trial-type hearing and whether a trial-type hearing is an administrative remedy that a party must exhaust before challenging conditions or prescriptions in court. In addition, the rules and preamble respond to the public comments we received on the 2005 rules, and they make a number of changes reflecting our experience in implementing those rules. The rules are being made effective as revised interim final rules, so that interested parties and the agencies may avail themselves of improvements being made to the procedures adopted in 2005. The Departments are also requesting comments on additional ways the rules can be improved. A detailed explanation of the revisions is provided below, but some of the highlights of the revised rules are as follows: • The rules clarify the availability of the trial-type hearing and alternatives processes in the situation where a Department has previously reserved its authority to include conditions or prescriptions in a hydropower license, and it now decides to exercise that authority. The rules also extend the period of time for a party to request a hearing or submit an alternative in that situation. • The rules extend a few of the deadlines in the 2005 rules, while not adopting some commenters' recommendations that the Departments significantly expand the hearing schedule. Specifically, parties are given 5 additional days to take each of the following steps: file a notice of intervention and response; update their witness and exhibit lists and submit written testimony following discovery; prepare for the hearing; and submit post-hearing briefs. • The rules allow for a stay, not to exceed 120 days, to facilitate settlement negotiations among the parties. As necessary, the parties would coordinate with FERC regarding any effect on the time frame established for the license proceeding. • The rules adopt the unanimous position of the Administrative Law Judges (ALJs) in the cases adjudicated to date, that the party requesting a hearing has the burden of proof. • The rules accept the argument of some commenters that the ALJ decision can come after the statutory 90-day period specified for the hearing itself. However, the rules require that the decision come no later than 120 days after the case was referred to the ALJ, to keep the whole process within FERC's time frame for the license proceeding. • The rules allow a party who has participated in a trial-type hearing and has filed an alternative condition or prescription to submit a revised alternative within 20 days after the ALJ decision, based on the facts as found by the ALJ. • The rules clarify that FPA section 33 requires a Department to prepare an equal consideration statement only when a party has submitted an alternative condition or prescription. • Finally, the preamble provides additional guidance on the term “disputed issues of material fact.” II. Public Comments You may submit your comments by either of the methods listed in the ADDRESSES section above. We will consider all comments received by the deadline stated in the DATES section above. Based on the comments received, we will consider promulgation of further revised final rules. Please make your comments as specific as possible and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the rules that you are addressing. We will make comments available for public review during regular business hours. To review the comments, you may contact any of the individuals listed in the FOR FURTHER INFORMATION CONTACT section above. Before including your personal address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comments to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. III. Background A. Interim Final Rules On November 17, 2005, at 70 FR 69804, the Departments jointly published interim final rules implementing section 241 of the Energy Policy Act of 2005 (EPAct), Public Law 109-58. Section 241 of EPAct amended FPA sections 4(e) and 18, 16 U.S.C. 797(e), 811, to provide that any party to a license proceeding before FERC is entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, of any disputed issues of material fact with respect to mandatory conditions or prescriptions developed by one or more of the three Departments for inclusion in a hydropower license. EPAct section 241 also added a new FPA section 33, 16 U.S.C. 823d, allowing any party to the license proceeding to propose an alternative condition or prescription, and specifying the consideration that the Departments must give to such alternatives. The interim final rules were made immediately effective, but a 60-day comment period was provided for the public to suggest changes to the interim regulations. The Departments stated in the preamble that, based on the comments received and the initial results of implementation, they would consider publication of revised final rules. Since that time, the Departments have gained experience under the interim regulations necessary to properly evaluate the comments received, and have developed these revised interim final rules. The November 17, 2005, preamble to the interim final rules contains additional background information that the reader may wish to consult concerning EPAct, the FPA, FERC's integrated licensing process (ILP), the trial-type hearing process, and the alternative conditions and prescriptions process. B. Comments Received The Departments received substantive comments on the interim final rules from the following organizations: • American Public Power Association, Sacramento Municipal Utility District, and Public Utility District No. 1 of Snohomish County, Washington; • Association of California Water Agencies; • Center for Biological Diversity (CBD); • Edison Electric Institute and National Hydropower Association (EEI/NHA); • Georgia Department of Natural Resources, Wildlife Resources Division; • Greater Yellowstone Coalition (GYC); • Hoopa Valley Tribe (HVT); • Hydropower Reform Coalition (HRC); • Idaho Rivers United; • Los Angeles Department of Water and Power • Ohio Department of Natural Resources; • PacifiCorp; • Ponderay Newsprint Company; • Power Authority of the State of New York; • Public Utility District No. 1 of Pend Oreille County, Washington; • Public Utility District No. 2 of Grant County, Washington; and • Southern Company. The Departments also received about 3,000 nearly identical letters from individuals expressing concern about the environmental effects of the new procedures. Taken together, the comments were extensive and very helpful to the Departments in determining what changes were needed to the interim regulations. Responses to the comments are provided below in the section-by-section analysis of the revised regulations. C. Litigation Challenging the Interim Final Rules Following publication of the interim final rules, lawsuits were filed challenging certain aspects of the rulemaking. In American Rivers v. U.S. Department of the Interior, 2006 WL 2841929 (W.D. Wash. 2006), seven non-governmental organizations sued the three Departments, alleging that (1) publication of the interim final rules without prior notice and comment violated the Administrative Procedure Act (APA), 5 U.S.C. 553, and (2) the rules were impermissibly retroactive. In its October 3, 2006, decision, the court rejected plaintiffs' arguments, holding that (1) the rules were exempt from the APA's notice and comment requirements because they were procedural and interpretative, and (2) the rules did not result in an impermissible retroactive application of EPAct. In Public Utility District No. 1 of Pend Oreille County, Washington v. U.S. Department of the Interior, No. 1:06cv00365 (D.D.C., filed Mar. 1, 2006), a licensee challenged the decision of the Departments in the interim final rules to limit the trial-type hearing and alternatives processes to license proceedings in which the license had not been issued as of November 17, 2005. FERC had issued a licensing order to the plaintiff in July 2005, but the plaintiff had sought rehearing from FERC and therefore argued that its license proceeding was still pending as of November 17, 2005. A nearly identical suit was filed the following month, Ponderay Newsprint Co. v. U.S. Department of the Interior, No. 1:06cv00768 (D.D.C., filed Apr. 26, 2006), and the two cases were consolidated. In March 2010, the plaintiffs voluntarily dismissed their lawsuits as part of a comprehensive settlement agreement with the Departments of Agriculture and the Interior. D. Other Significant Litigation Another notable legal development since publication of the interim final rule was the issuance of the decision in City of Tacoma, Washington v. Federal Energy Regulatory Comm'n, 460 F.3d 53 (D.C. Cir. 2006). The case involved several consolidated petitions challenging the license issued by FERC in 1998 (and amended in 2005) for the Cushman Project located in the State of Washington. While a detailed discussion of the court's multiple holdings is beyond the scope of this preamble, the Departments note that the decision provides useful guidance in the implementation of Federal agencies' various authorities under the FPA, including those addressed in these regulations. For example, in one holding, the court discussed the relationships among the delegated authorities possessed by FERC and the Departments, respectively, under the FPA. Noting that the conditioning authority conferred on the Secretaries by section 4(e) is mandatory and independent of FERC's authorities, the court stated, Though FERC makes the final decision as to whether to issue a license, FERC shares its authority to impose license conditions with other federal agencies. To the extent Congress has delegated licensing authority to agencies other than FERC, those agencies, and not FERC, determine how to exercise that authority, subject of course to judicial review. 460 F.3d at 65 (citations omitted). The court held that, while the Departments “should certainly make every effort to cooperate and to coordinate their efforts, because license conditions imposed by one agency may alter the conditions the other agency deems necessary,” FERC may not unilaterally place restrictions (such as a strict time limit) on the exercise of the other Departments' authorities. Id. In another holding, the court adopted an expansive interpretation of the section 4(e) requirement that a project and associated license be located “within” a reservation. Id. at 65-66. E. Request for Additional Comment Period In July 2009, NHA and HRC sent a joint letter to the three Departments, asking that an additional 60-day comment period be provided before publication of final rules. The organizations noted that they and their members had gained extensive experience with the interim final rules since their initial comments were submitted in January 2006, and they now have additional comments to offer on ways to improve the trial-type hearing and alternatives processes. The Departments have decided to grant NHA and HRC's request. Instead of publishing final rules, we are publishing these revised interim final rules with a 60-day comment period. Under this approach, we are putting into effect several improvements to the November 2005 interim final rules, while providing the public with updated information on which to base additional comments, including our responses to the prior comments we received. F. Government Accountability Office (GAO) Report In September 2010, GAO released Report GAO-10-770 entitled, “Hydropower Licensing: Stakeholders' Views on the Energy Policy Act Varied, but More Consistent Information Needed.” The report analyzed implementation of EPAct section 241 since 2005 and made two recommendations. The first recommendation was that the Secretaries of Agriculture, Commerce, and the Interior [d]irect cognizant officials, where the agency has not adopted a proposed alternative condition or prescription, to include in the written statement filed with FERC (1) its reasons for not doing so, in accordance with the interim rules and (2) whether a proposed alternative was withdrawn as a result of negotiations and an explanation of what occurred subsequent to the withdrawal. . . . GAO Report at 19. As noted by GAO, the interim final rules already require each Department to file with FERC, along with any modified condition or prescription the Department adopts, a statement explaining (i) the basis for the modified condition or prescription and (ii), if the Department is not adopting a proposed alternative, its reasons for not doing so. 7 CFR 1.673(c); 43 CFR 45.73(c); 50 CFR 221.73(c). However, the Departments pointed out in their comments to GAO that, in some cases, a license party that submitted an alternative condition or prescription later withdraws it, often as a result of negotiations with the Department. In cases where there is no longer an alternative to consider because a proposed alternative has been voluntarily withdrawn, the statutory requirement to provide a reason for not adopting an alternative does not apply. The Departments' written statement will, however, include an explanatory notation indicating that a proposed alternative was voluntarily withdrawn. GAO's second recommendation was that the Departments “[i]ssue final rules governing the use of the section 241 provisions after providing an additional period for notice and an opportunity for public comment and after considering their own lessons learned from their experience with the interim rules.” GAO Report at 19. As explained above, we are publishing these revised interim final rules with a 60-day comment period, as requested by NHA and HRC and as recommended by GAO. G. Other Developments Since Release of Interim Final Rules In developing the interim final regulations, the Departments anticipated that the Department of Commerce involvement in licensing proceedings under the FPA would be limited to issuance of fishway prescriptions under FPA section 18. This was consistent with Commerce's traditional experience in implementing the FPA. The Commerce regulations therefore referenced only the National Marine Fisheries Service (NMFS) and section 18 of the Act. However, in the years since promulgation of the interim final regulations, alternative energy projects that would use new technologies to harness tidal and wave energy have been increasingly proposed for development. As applicants have moved into the marine environment in proposing projects to be licensed by FERC, impacts not traditionally associated with licenses under the FPA have emerged. For example, projects have been proposed within areas designated as National Marine Sanctuaries. These developments have necessarily required broader interest and involvement in the licensing process throughout the Department of Commerce, including within the National Marine Sanctuary Program (NMSP). In 2006, in response to a proposal to site a wave energy project within the Olympic Coast National Marine Sanctuary, NMSP filed conditions with FERC under FPA section 4(e) to address impacts of the proposed Makah Bay Offshore Wave Pilot Project (Project No. 12751-001, applicant Finavera Renewables Ocean Energy, Ltd.). It is likely that the interest and involvement of Commerce agencies beyond NMFS will continue and will include the need to address impacts other than to fish migration under section 18. 1 1 FERC initially accepted and proposed to incorporate all of the NMSP conditions into the draft project license. See Finavera Renewables Ocean Energy, Ltd., 121 FERC ¶ 61,288 (2007). On rehearing, FERC reversed itself, stating that it did not believe the sanctuary constituted a “reservation” under the FPA, although it continued to include most of the NMSP conditions in the license. See 122 FERC ¶ 61,248 (March 20, 2008). On May 19, 2008, FERC granted NOAA's request for rehearing on the revised order, but on rehearing declined to reverse its determination that a sanctuary does not constitute a “reservation” under the FPA. See, 124 FERC ¶ 61,063 (July 18, 2008). No Court of Appeals has addressed these issues. While the wording of the current regulations does not foreclose issuance of such conditions, and the procedures of EPAct would be available under the current regulations where such conditions are issued, the Departments believe the regulations should be changed to expressly apply to those situations. Therefore, Commerce is revising its regulations to make clear that any Commerce agency that identifies a basis to issue conditions under section 4(e) will be subject to these regulations. Currently, NMSP is the only known such agency. IV. Section-by-Section Analysis The following discussion explains the changes made to the regulations published in November 2005 and provides the Departments' response to the comments received. Regulations that have not been changed and that were not the subject of public comments are not discussed. The reader may wish to consult the section-by-section analysis in the interim final rules for additional explanation of all the regulations. Three separate versions of the revised interim final regulations are provided, one version each for Agriculture, Interior, and Commerce. The structure and content of the regulations are substantially similar, but there are variations, such as to account for differences in the names of the Departments and their organizational components. The three versions also vary somewhat in their references to conditions and prescriptions, since Agriculture does not develop prescriptions under FPA section 18, while Interior and Commerce may develop either conditions or prescriptions or both. For each section discussed below, the CFR title, section number, and heading for each Department are shown, 7 CFR for Agriculture, 43 CFR for Interior, and 50 CFR for Commerce. 7 CFR 1.601 What is the purpose of this subpart, and to what license proceedings does it apply? 43 CFR 45.1 What is the purpose of this part, and to what license proceedings does it apply? 50 CFR 221.1 What is the purpose of this part, and to what license proceedings does it apply? Paragraphs (a)(1)-(2) of these sections in the interim final rules provided that the trial-type hearing process in these regulations applies to mandatory conditions and prescriptions developed by a Department under FPA section 4(e) or 18 and does not apply to recommendations that a Department may submit to FERC under FPA section 10(a) or (j). The Departments have expanded paragraph (a)(2) in the final rules to exclude more generally provisions that a Department may submit to FERC under any authority other than FPA section 4(e) or 18. Such provisions would include recommendations under section 10(a) or (j), terms and conditions under section 30(c), or any other provisions not submitted under section 4(e) or 18. Commenters raised four sets of issues concerning the applicability of the EPAct hearing and alternatives processes, as set forth in paragraphs (c) and (d) of these regulations. Cases pending on November 17, 2005. Paragraph (d)(1) provides that the regulations apply to any hydropower license proceeding for which the license had not been issued as of November 17, 2005, and for which one or more preliminary conditions or prescriptions have been or are filed with FERC. Some commenters contended that applying the regulations to proceedings where preliminary or “final” conditions or prescriptions had been submitted before November 17, 2005, would be disruptive, would impose an undue burden on stakeholders, and would constitute an impermissible retroactive application of the EPAct provisions. Others argued that claims of retroactivity are groundless, since proposed conditions and prescriptions are not final or closed until FERC has made its licensing decision. The Departments agree that applying the EPAct provisions to licensing proceedings pending at the time of enactment does not constitute retroactive application. The same allegation of retroactive application was considered and rejected by the court in American Rivers. There, the court held that the interim regulations did not have an impermissible retroactive impact, noting that conditions and prescriptions that have not been included in a final FERC license cannot be regarded as completed events. Paragraph (d)(1) therefore remains substantially unchanged. Reserved authority. On occasion, a Department does not submit conditions or prescriptions for inclusion in a license during the license proceeding, but reserves the authority to do so at a later point, e.g., if conditions change or the Department obtains additional information. The interim regulations provided that, if the Department notifies FERC that it is reserving its authority, the hearing and alternatives processes would be available to the license parties if and when the Department subsequently exercised its reserved authority. Some commenters asserted that these processes should be available, not only when the Department subsequently exercises reserved conditioning or prescriptive authority, but also when the Department initially decides to reserve its authority. According to these commenters, the reservation of authority is a decision not to impose a condition or prescription, with consequences for natural resources, and should be subject to the hearing and alternatives processes. Under the terms of EPAct, license applicants and other parties are entitled to trial-type hearings with respect to conditions or prescriptions that a Department deems necessary. Similarly, the opportunity to propose an alternative arises when the Department deems a condition or prescription to be necessary. Thus, under EPAct, it is only when a Department affirmatively exercises its discretion to mandate a condition or prescription that the hearing and alternatives processes are triggered. Allowing for trial-type hearings and alternatives when the agencies have not exercised this authority would be both inconsistent with the legislation and an inefficient use of the Departments' resources. Consequently, the revised interim final regulations continue to provide that the hearing and alternatives processes are available only when a Department submits a preliminary condition or prescription to FERC, either during the initial licensing proceeding or subsequently through the exercise of reserved authority. Exercise of reserved authority. Other commenters noted that, with respect to the exercise of reserved authority, the language of the interim regulations appeared to limit the availability of these processes to a Department's exercise after November 17, 2005, of an authority it reserved on or after that date. They argued that the processes should be equally available to a Department's exercise after November 17, 2005, of an authority it reserved before that date. The Departments agree that Congress intended the hearing and alternatives processes to apply to any case in which a Department issues mandatory conditions or prescriptions on or after the date of EPAct's enactment. Paragraph (c) has been revised and a new paragraph (d)(2) has been added to clarify this point. Interim paragraph (d)(2) has been deleted as no longer needed, for the reasons explained below in connection with 7 CFR 1.604, 43 CFR 45.4, and 50 CFR 221.4. Exhaustion of administrative remedies. Several parties commented that utilizing EPAct's trial-type hearing and alternatives processes should not be a condition precedent to seeking appellate court review of mandatory conditions and prescriptions. According to these commenters, the failure to request a trial-type hearing on disputed issues of material fact or to propose an alternative should not be considered a failure to exhaust administrative remedies. Section 241 of EPAct does not itself contain an express exhaustion requirement, and there have been no court decisions addressing the issue of exhaustion in the context of EPAct trial-type hearings to date. Whether the doctrine of exhaustion applies to a given claim will be determined by the court based on the specific circumstances involved, such as whether any exhaustion provision from another statute applies, the nature of the claim being raised, and the applicability of any exhaustion defenses. The Departments note that license parties have ample opportunities to provide input into the processes for developing mandatory conditions and prescriptions. In addition to the trial-type hearing and alternatives processes, the FERC licensing process provides opportunities for parties to comment on a Department's preliminary conditions or prescriptions, and on FERC's environmental assessment or draft environmental impact statement that discusses such preliminary conditions or prescriptions, See, e.g., 18 CFR 5.23(a), 5.24(b)-(c), 5.25(b)-(c). Presenting information and concerns to the Departments well before the court of appeals review is the best way to ensure that the Departments are aware of the concerns and have an opportunity to consider them in formulating their conditions and prescriptions. No changes have been made to the regulations in response to the comments on this issue. 7 CFR 1.602 What terms are used in this subpart? 43 CFR 45.2 What terms are used in this part? 50 CFR 221.2 What terms are used in this part? These sections define the meaning of various terms used in the regulations. They are unchanged from the interim regulations, except for two address changes and the following two modifications. First, a definition of “modified condition or prescription” has been added, as recommended by a commenter. Second, the definition of “preliminary condition or prescription” has been revised by changing “a” to “any” in the first line and by omitting the citations to FERC's regulations in the last line. While the Departments make every effort to submit their preliminary conditions and prescriptions in accordance with the requirements in FERC's regulations, circumstances on occasion may necessitate the submission of a preliminary condition or prescription after FERC's regulatory deadline. See City of Tacoma, discussed under section II.D. of this preamble. In such instances, the license parties should still have an opportunity to request a trial-type hearing as to disputed issues of material fact and to submit alternative conditions or prescriptions. Some commenters suggested that the Departments clarify the definition of “material fact” in these sections to expressly exclude allegations of law or policy, or any argument directed at whether a preliminary condition or prescription should be adopted, modified, or rejected, or whether a proposed alternative should be adopted or rejected. The comments cited several specific examples of issues that parties have sought to raise in trial-type hearing proceedings that the commenters considered inappropriate. The Departments agree that the commenters accurately described both the intent of the statute and interim regulations and the experience to date in trial-type hearing proceedings. The regulations clearly prohibit an ALJ from rendering a conclusion on the ultimate question of whether a condition or prescription should be affirmed, modified, or withdrawn, because that conclusion is reserved to the Secretary's discretion and expert judgment. 7 CFR 1.660(b)(3), 43 CFR 45.60(b)(3), 50 CFR 221.60(b)(3). Therefore, the November 2005 preamble made clear that issues of law or policy are not appropriate for resolution in a trial-type hearing. 70 FR at 69809. The Departments do not find it necessary to change the regulatory text on this point but are including an extended preamble discussion of “disputed issues of material fact,” which provides further clarification and draws from the Departments' experience to date under the rules. See section IV.A. below. 7 CFR 1.603 How are time periods computed? 43 CFR 45.3 How are time periods computed? 50 CFR 221.3 How are time periods computed? Some commenters requested that the regulations allow extensions of time for filing hearing requests, notices of intervention, or answers upon a showing of extraordinary circumstances. The interim final rules provided that no extension of time could be granted for these particular filings. 7 CFR 1.603(b), 43 CFR 45.3(b), 50 CFR 221.3(b). The revised interim final regulations do not incorporate these requested changes, but we have extended the time for filing a notice of intervention and response (see 7 CFR 1.622, 43 CFR 45.22, 50 CFR 221.22). As noted in the preamble to the interim final rules, strict time limitations are necessary to ensure timely completion of the hearing and alternatives processes and to avoid delays in the FERC licensing proceeding. 70 FR at 69809. Parties with a significant interest in the proceeding will presumably have already participated in the pre-filing consultation, scoping, and study processes for at least 3 years prior to the submission of preliminary conditions or prescriptions. A substantial and voluminous record will also have been developed during that time. Most parties should therefore be sufficiently prepared to respond to the Departments' preliminary conditions or prescriptions and prepare a hearing request or notice of intervention and response within the allotted time, without the need for extensions. The preamble to the interim rules also explained that, as a practical matter, no ALJ would be available prior to referral to rule on an extension motion. According to the commenters, an ALJ is not necessary to rule on extension requests and “the Departments could make such a determination during their initial adequacy review of the hearing request or alternate condition.” HRC Comments at 41. The Departments disagree. These rules establish stringent time frames to which all parties must abide, absent an extension granted by a neutral and impartial ALJ or a provision of these rules. The commenters further observed that the hearing request imposes a significant burden on all parties that should be avoided if there is an available resolution that simply needs time to succeed. A new provision for a limited stay of the proceedings to allow settlement negotiations should provide an opportunity for such resolution. See 7 CFR 1.624, 43 CFR 45.24, 50 CFR 221.24, discussed below. 7 CFR 1.604 What deadlines apply to pending applications? 43 CFR 45.4 What deadlines apply to pending applications? 50 CFR 221.4 What deadlines apply to pending applications? These sections from the interim regulations dealing with pending applications have been removed and replaced in the revised interim final regulations. They applied to license proceedings in which (1) a Department had filed a preliminary condition or prescription before the November 17, 2005, effective date of the regulations, and (2) FERC had not issued a license as of that date. They provided that hearing requests and alternatives in such cases would be due on or before December 19, 2005. All license parties in such proceedings that wished to request a hearing or submit alternatives by the latter date have done so, and all but one of those cases has since been resolved. 2 Therefore, these sections are no longer needed; their removal does not represent a substantive change to the regulations. 2 Timely hearing requests filed by PacifiCorp with respect to its Condit Hydroelectric Project remain pending before Interior and Commerce. The Departments have notified PacifiCorp that they will establish a time frame for the hearing process if and when FERC reinstates the proceeding to evaluate PacifiCorp's 1991 license application. Some commenters raised concerns that there would be no comment opportunity on alternative conditions and prescriptions in pending cases where review under the National Environmental Policy Act (NEPA) had already been completed when the interim final rules were issued. They suggested that, for such cases, the regulations require reissuance or supplementation of the NEPA document. Under 7 CFR 1.674, 43 CFR 45.74, and 50 CFR 221.74, the Department must consider evidence and supporting material provided by any license party or otherwise reasonably available to it, including information on the environmental effects of conditions, prescriptions, and alternatives. On a case-by-case basis, FERC should consider whether supplemental NEPA analysis is appropriate under 40 CFR 1502.9. 7 CFR 1.604 What deadlines apply to the trial-type hearing and alternatives processes? 43 CFR 45.4 What deadlines apply to the trial-type hearing and alternatives processes? 50 CFR 221.4 What deadlines apply to the trial-type hearing and alternatives processes? In place of the removed interim regulations dealing with pending applications (discussed above), the revised interim final regulations include tables summarizing the steps in the trial-type hearing and alternatives processes and indicating the deadlines generally applicable to each step. The regulations state that, if the deadlines in the tables are in any way inconsistent with the deadlines as set by other sections of the regulations or by the ALJ, the deadlines as set by those other sections or by the ALJ control. For example, under 7 CFR 1.603, 43 CFR 45.3, or 50 CFR 221.3, a deadline as shown in the table may be extended because it falls on a Saturday, Sunday, or holiday, or because the ALJ has granted a motion to extend it. See also 7 CFR 1.631(c), 43 CFR 45.31(c), and 50 CFR 221.31(c). The deadlines in the table may also be extended if the hearing requester and the Department agree to a stay to allow for settlement negotiations under 7 CFR 1.624, 43 CFR 45.24, or 50 CFR 221.24, discussed below. 7 CFR 1.610 Who may represent a party, and what requirements apply to a representative? 43 CFR 45.10 Who may represent a party, and what requirements apply to a representative? 50 CFR 221.10 Who may represent a party, and what requirements apply to a representative? Three minor changes have been made to these sections regarding representation of a party in the hearing process. Environmental organizations objected that the regulations did not allow them to designate one organization to represent another, as they have done in the past. In response to this comment, paragraph (b)(3) has been revised to change “officer or full-time employee” to “officer or agent,” leaving it up to an organization to decide what type of agent it wishes to designate to represent its interests. Paragraph (c) has been revised to clarify that an individual representing himself or herself must file a notice or appearance, as must any other representative of a party. And a new paragraph (d) has been added to expressly authorize the administrative law judge (ALJ) to require a party that has more than one representative to designate a lead representative for service of documents under 7 CFR 1.613, 43 CFR 45.13, or 50 CFR 221.13. This authority was implicit in the interim rules. 7 CFR 1.611 What are the form and content requirements for documents under §§ 6.610 through 1.660? 43 CFR 45.11 What are the form and content requirements for documents under this subpart? 50 CFR 221.11 What are the form and content requirements for documents under this subpart? Two minor changes have been made to these regulations. Paragraph (a)(2) has been revised to state that service copies of a document may be printed on both sides of a page, to save paper. And paragraph (a)(4) has been revised to increase the minimum font size from 10 to 11 points to improve readability. 7 CFR 1.612 Where and how must documents be filed? 43 CFR 45.12 Where and how must documents be filed? 50 CFR 221.12 Where and how must documents be filed? Paragraph (b) of these regulations has been revised to specify that an original and two copies of any document must be filed with the appropriate office under paragraph (a). This change will facilitate the expedited hearing process. Under paragraph (b)(2), supporting materials, which may be burdensome to copy, may be submitted in the form of a hard-copy original and an electronic copy on compact disc or other suitable media. Several commenters suggested that the Departments revise the regulations to allow parties to file documents electronically, using email or FERC's eFiling system. The Departments agree that, in many circumstances, the electronic transmission of documents is a preferable means of providing documents to another party. As a result, the revised regulations in 7 CFR 1.613, 43 CFR 45.13, and 50 CFR 221.13 allow for electronic service of documents on a party who consents to such service. However, the Departments and their ALJ offices do not currently have the capacity or resources to accept electronically and print off the large volume of documents typically filed in connection with a trial-type hearing. The Departments disagree with the commenters' suggestion to use FERC's eFiling system because EPAct places the responsibility of administering the trial-type hearing process exclusively with the Departments. In addition, the Departments do not believe it is advisable to rely for filing on an electronic system of another agency over which the Departments have no control. Given the tight time frames involved, any technical problems or other issues that rendered FERC's eFiling system unavailable even for a limited time could prove disruptive to the trial-type hearing process. Paragraph (d) dealing with nonconforming documents has been revised by deleting the second sentence concerning minor defects, which had stated that parties may be notified of “minor” technical defects and given a chance to correct them. Commenters objected that no definition of a “minor” defect was provided, thus presenting a risk of inconsistent and subjective interpretations. Commenters proposed the following definition: “For this purpose, `minor' means that the filing is substantively in compliance with the requirements for the filing.” HRC comments at 57. This proposed definition fails to provide additional clarity and has not been adopted. Rather than trying to catalogue possible defects as “minor” or “major,” the Departments have deleted the second sentence. The revised interim final regulation thus puts parties on notice that non-conforming documents may be rejected, thereby helping to ensure compliance with technical filing requirements. The form, content, and filing requirements in the regulations are straightforward and clear, and the Departments expect compliance for documents to be accepted. It remains within the Departments' discretion to determine the appropriate remedy for failure to comply with these requirements. 7 CFR 1.613 What are the requirements for service of documents? 43 CFR 45.13 What are the requirements for service of documents? 50 CFR 221.13 What are the requirements for service of documents? These regulations have been revised in response to comments advocating the use of electronic means of service. Use of FERC's service procedures. Several commenters proposed that the Departments allow parties to use FERC's eService and eSubscription systems to ensure a cost-effective and reliable means of effectuating service on other parties. The Departments have adopted this suggestion to a limited extent. For service on license parties as required under paragraphs (a)(1) and (a)(2)(ii) of these sections, the revised regulations authorize service under FERC's procedures at 18 CFR 385.2010(f)(3) for those license parties that have agreed to receive electronic service. For service on hearing parties under paragraph (a)(3), the use of FERC's procedures is not authorized. In the Departments' experience, the number of hearing parties generally is substantially less than the number of license parties. This limited approach balances the interests in cost-effective means of service on a large number of parties with the Departments' interest in retaining control over the administration of the trial-type hearing process, for which the Departments are exclusively responsible under EPAct. The latter interest predominates for most of the hearing process, when service is limited to the much smaller number of hearing parties. Service by other electronic means. Service on either license parties or hearing parties is also authorized under paragraph (c) of these regulations, which has been expanded in two ways. First, paragraph (c)(4) has been revised in 7 CFR 1.613 and 50 CFR 221.13 and has been added to 43 CFR 45.13. Under this paragraph, service may be made by electronic means if the party to be served has consented to that means of service in writing. However, if the serving party learns that the document did not reach the party to be served, the serving party must re-serve the document by another method. This provision, which is modeled on Rule 5(b) of the Federal Rules of Civil Procedure (FRCP), takes the place of former paragraph (c)(4)(ii) both in 7 CFR 1.613 and 50 CFR 221.13, which required the person served by electronic mail to acknowledge receipt of the document. Second, the introductory language in paragraph (c) has been revised to allow the ALJ to order methods of service other than those enumerated in paragraphs (c)(1) through (c)(4), upon agreement of the parties. Service via Internet posting. Commenters suggested that the Departments allow parties to post documents filed in support of a hearing request on a Web site to reduce service costs associated with those sometimes voluminous documents. Other commenters suggested that the Departments place electronic or scanned copies of all materials received during the trial-type hearing onto a public Internet site to make the documents more accessible to other interested parties. The Departments do not adopt this suggestion due to the time and resource constraints during the trial-type hearing. Parties who wish to place documents on public Internet sites are not prohibited from doing so, but such posting will not substitute for service under these regulations. Timing of service. Commenters proposed that the Departments revise the regulations to clarify that all served documents must arrive by 5 p.m. on the filing date. The Departments disagree with the commenters' proposal and preserve the requirement established in the interim final rules. This requirement provides that service is effected when a party initiates the transmission of a document through one of the specified methods of service at the same time the document is delivered or sent for filing. This requirement ensures that parties receive served documents in a cost-effective and timely fashion. Indeed, unless a document was served by hand-delivery or facsimile, the commenters' proposal would require parties to serve a document a day or more in advance of filing in order to have service copies arrive by 5 p.m. on the filing date. This would unnecessarily shorten the already tight regulatory time frames. Service on the Department. Comments were received requesting that the regulations be clarified with respect to timing of service and agency personnel to be served. With respect to timing, paragraphs (a)(1) through (a)(3) have been revised to specify that documents to be served must be delivered or sent to the other parties at the same time the documents are delivered or sent for filing. With respect to agency personnel to be served, the Departments do not believe that any changes to the regulations are needed. Under paragraph (a)(1), a request for a hearing must be served on each license party; FERC's service list for the license proceeding will identify the persons or entities to be served and their addresses. Under paragraph (a)(2), a notice of intervention and response must be served on the Departmental entity that developed the preliminary condition or prescription; the preliminary condition or prescription will identify the persons or entities to be served and their addresses. Subsequent documents in the hearing process will be served on the Departmental representatives identified in the Department's answer or notice under 7 CFR 1.625, 43 CFR 45.25, and 50 CFR 221.25. 7 CFR 1.620 What supporting information must the Forest Service provide with its preliminary conditions? 43 CFR 45.20 What supporting information must a bureau provide with its preliminary conditions or prescriptions? 50 CFR 221.20 What supporting information must NMFS provide with its preliminary conditions or prescriptions? Some commenters suggested amending these sections to require that the agency rationale for its preliminary conditions or prescriptions include a clear and concise statement of the material facts relied upon and an “analysis of the project's impacts on the resources the agency administers.” HRC comments at 33. The Departments agree that the rationale for a preliminary condition or prescription must contain sufficient information to enable license parties to identify disputed issues of material fact in light of the relevant legal standards under the FPA. The Departments' rationales also generally identify the nature of project-related impacts on agency-managed resources that their conditions or prescriptions are designed to address. However, EPAct is not reasonably interpreted to require the Departments to catalogue every fact considered in developing a preliminary condition or prescription. Accordingly, the Departments are not amending the regulatory text on this point. 7 CFR 1.621 How do I request a hearing? 43 CFR 45.21 How do I request a hearing? 50 CFR 221.21 How do I request a hearing? The Departments received comments on various aspects of these regulations, including the time for filing hearing requests, page limits, and reliance on new evidence. Time for filing hearing requests generally. Commenters suggested that the Departments extend the deadline for filing hearing requests because, in their view, the interim regulations do not provide parties with sufficient time to prepare such requests or attempt an informal resolution of contested issues. Specifically, the commenters suggested that the Departments extend the deadline for filing hearing requests from 30 days to 45 days to be consistent with FERC's ILP, which provides parties with 45 days to respond to preliminary conditions and prescriptions. Additionally, these commenters argued that, since FERC's ILP-prescribed deadlines may not be met in certain cases, the Departments should extend the deadline for filing hearing requests instead of conforming the trial-type hearing process to the ILP schedule. The Departments disagree with this proposal (except in cases where the Department is issuing conditions or prescriptions pursuant to reservations of authority, as discussed below). As the commenters recognize, the Departments have tried “to conform the trial-type hearing to the ILP schedule” (EEI/NHA comments at 21). Even though FERC's ILP schedule provides parties with 45 days to submit comments on preliminary conditions and prescriptions, the 30-day deadline for filing trial-type hearing requests is necessary both to fit the hearing process within the time frame established by FERC for each license proceeding, as required by EPAct, and to provide intervenors and the Department with sufficient time to evaluate hearing requests and prepare responses before the matter is referred to an ALJ. The 30-day deadline applies to any request for a hearing on a preliminary condition or prescription submitted to FERC before the license is issued. Time for filing hearing requests as related to the exercise of reserved authority. Some commenters complained that the interim regulations do not include an express, separate timetable for requesting a hearing or proposing alternatives in response to a Department's exercise of reserved authority under 7 CFR 1.601(d)(2), 43 CFR 45.1(d)(2), or 50 CFR 221.1(d)(2). Under these circumstances, parties may have less advance notice concerning the justification for and content of any proposed conditions or prescriptions. The Departments agree that a separate timetable should be provided. Accordingly, paragraph (a)(2) of these regulations has been revised to provide a longer period of time—60 days as compared to 30 days—for a license party to request a hearing on disputed issues of material fact with respect to a preliminary condition or prescription in situations where the Department is exercising its reserved authority after the license has been issued. Time for filing hearing requests as related to preliminary versus modified conditions and prescriptions. Industry commenters took differing positions on whether the trial-type hearing should be held to address disputed issues of fact at the preliminary or modified condition/prescription stage. Some commenters supported holding trial-type hearings at the preliminary stage, acknowledging that doing so is appropriate in most cases, is consistent with FERC's licensing timetable, and will help inform the NEPA process. Other commenters stated that hearings are more appropriately held after modified conditions or prescriptions are submitted. Commenters also requested that the regulations provide for trial-type hearings at the modified stage if the modifications are based on new facts that did not exist or were not anticipated at the preliminary stage, or if the agency submits an entirely new condition or prescription at the modified stage. As set forth in the interim final rules, the trial-type hearing procedures were carefully crafted to work within FERC's time frame, as required by Congress, while affording interested parties an opportunity to present evidence on disputed issues of material fact with respect to the Departments' mandatory conditions and prescriptions. 70 FR at 69806. Holding a hearing after submission of preliminary conditions and prescriptions allows for resolution of disputed factual issues at the most relevant time—before the Department completes necessary modifications to the conditions or prescriptions, before the close of the NEPA comment period, and before completion of the final environmental impact statement (EIS). This approach also promotes efficiency by allowing the Departments to assess all relevant information—including any ALJ opinion, comments on FERC's NEPA document, and alternative conditions or prescriptions with supporting information—and to modify the conditions or prescriptions in one coordinated effort. Providing for trial-type hearings solely at the modified stage is not a reasonable or efficient use of resources. Issuance of an ALJ opinion after conditions and prescriptions have already been modified could require the Departments to revise and resubmit conditions and prescriptions, thereby adding an additional step and additional time to the process. This second round of revisions would delay license issuance in most cases. Indeed, under current practice, the Departments submit modified conditions and prescriptions 60 days after the close of the NEPA comment period, with FERC's final EIS being issued just 90 days later. An ALJ opinion resolving disputed facts on modified conditions and prescriptions would almost certainly be issued after FERC's completion of the final NEPA document. The Departments disagree with comments that holding an adversarial hearing at the preliminary stage will jeopardize the possibility of settlement. The Departments' experience has been that several cases have settled after hearing requests were filed at the preliminary condition or prescription stage. The revised interim final regulations therefore continue the approach taken in the interim regulations of scheduling the trial-type hearing process immediately following the issuance of preliminary conditions and prescriptions. Nevertheless, the Departments acknowledge that exceptional circumstances may arise where facts not in existence and not anticipated at an earlier stage necessitate a new preliminary condition or prescription. This circumstance would be handled on a case-by-case basis, in coordination with FERC as necessary. Page limits for hearing requests. Some commenters objected that the page limits for hearing request are too restrictive, and they requested that the limit for describing disputed issues of material fact be increased from two pages to five pages and that the limit for witness and exhibit identification be increased from one page to three pages. The Departments believe that the page limits set forth in the interim regulations are generally appropriate and provide sufficient space for parties to identify disputed issues, particularly in light of the expedited nature of the proceeding. The Departments further note that they are bound by the same page limits in submitting an answer. See 7 CFR 1.622, 43 CFR 45.22, and 50 CFR 221.22. Nevertheless, having considered this comment and the purpose of the rule, the Departments have concluded that the required list of specific citations to supporting information and the list of exhibits need not be included in the page restrictions. The rule has been revised accordingly for the hearing request and the notice of intervention and response. See 7 CFR 1.621(d), 43 CFR 45.21(d), 50 CFR 221.21(d) and 7 CFR 1.622(d), 43 CFR 45.22(d), 50 CFR 221.22(d). This change will provide the parties with additional space to describe the disputed issues of material fact and to summarize expected witness testimony. Reliance on new evidence. Other commenters suggested that the final rules require parties who wish to submit new evidence when requesting a trial-type hearing or in support of an alternative condition or prescription to show good cause for not having previously submitted the information in the license proceeding record. Otherwise, these commenters argued, parties would have an incentive “to `hide the ball' from others and disrupt proceedings at the last minute,” which may create delays or unfair advantage. HRC Comments at 30. While the Departments share the commenters' interest in ensuring an expeditious and fair trial-type hearing, we disagree with the proposal to include a “good cause” requirement. Such a requirement could harm the Department's ability to rely on relevant information from the parties, such as newly completed studies, that might assist the Department in evaluating conditions and fishway prescriptions. Moreover, such a requirement may run counter to the parties' and the Department's interests in ensuring a “full and accurate disclosure of the facts.” 7 CFR 1.651(a), 43 CFR 45.51(a), 50 CFR 221.51(a). Service by electronic means. Consistent with the changes to 7 CFR 1.613(c), 43 CFR 45.13(c), and 50 CFR 221.13(c), a new paragraph (b)(4) has been added to these regulations, requiring a hearing requester to state whether or not it consents to service by electronic means and, if so, by what means. 7 CFR 1.622 How do I file a notice of intervention and response? 43 CFR 45.22 How do I file a notice of intervention and response? 50 CFR 221.22 How do I file a notice of intervention and response? Commenters objected that the 15-day period provided in the interim regulations for filing a notice of intervention and response to a hearing request was too short, pointing out that the Departments have 30 days to file their answers under interim 7 CFR 1.624(a), 43 CFR 45.24(a), and 50 CFR 221.24(a). While the Departments need the additional time to coordinate with each other and with the respective ALJ offices regarding the possible consolidation of related hearing requests, the Departments agree that a 15-day intervention and response period is very tight. As revised, paragraph (a)(1)(ii) of these regulations gives license parties 20 days for filing a notice of intervention and response, thus adding 5 days to the overall hearing process. A diagram of the trial-type hearing process under these revised interim final rules is found in the discussion of 7 CFR 1.660, 43 CFR 45.60, and 50 CFR 221.60, below. Paragraph (a)(2) has also been revised, to clarify the permissible scope of a notice of intervention and response. Paragraph (b)(3) has been added, requiring an intervenor to state whether or not it consents to service by electronic means and, if so, by what means. Finally, paragraph (d) has been revised to specify that citations to scientific studies, literature, and other documented information do not count against the page limits for the response. 7 CFR 1.623 Will hearing requests be consolidated? 43 CFR 45.23 Will hearing requests be consolidated? 50 CFR 221.23 Will hearing requests be consolidated? These sections, including the section headings, have been revised slightly to focus on the substance rather than the timing of the Departments' interagency coordination regarding multiple hearing requests. A decision on consolidation of hearing requests must still be made before the Departments file their responses under revised 7 CFR 1.625, 43 CFR 45.25, and 50 CFR 221.25; but it is not necessary to specify the timing of steps within the interagency coordination process. The introductory language to paragraph (c) has also been revised to clarify that two or more hearing requests may be consolidated only in part, which could be appropriate if they have only some issues in common. Some commenters proposed that the regulations provide for consecutive rather than simultaneous 90-day hearings for those cases that the Departments do not consolidate. Similarly, they proposed that a consolidated hearing involving two Departments last up to 180 days and a consolidated hearing involving three Departments last up to 270 days. The Departments do not agree that EPAct affords this level of flexibility regarding timing. EPAct requires that any trial-type hearing be conducted within the time frame established by FERC for each license proceeding. To fulfill this requirement, trial-type hearings are generally completed 180 days or so before completion of the final NEPA document and license issuance. Those 180 days are needed to complete several procedural steps, including the comment period on FERC's draft NEPA document, submission of revised alternatives, review of comments on the draft NEPA document, preparation of the alternatives analysis, modification of conditions or prescriptions, issuance of FERC's final NEPA document, and license issuance. Many if not all of these steps are dependent on receipt of the ALJ's decision. Increasing the overall time frame for hearings from 90 to 180 or 270 days—either through consecutive 90-day hearings or one extended consolidated hearing—would push back these subsequent steps and raise a significant potential for delay in license issuance, a result Congress expressly sought to avoid. The revised interim final regulations do not adopt the commenters' proposals. Some commenters questioned the authority of the Departments to consolidate hearing requests, thereby giving an ALJ for one Department the authority to decide disputed issues of material fact for another. This issue is addressed below in connection with 7 CFR 1.660(d), 43 CFR 45.60(d), and 50 CFR 221.60(d). 7 CFR 1.624 Can a hearing process be stayed to allow for settlement discussions? 43 CFR 45.24 Can a hearing process be stayed to allow for settlement discussions? 50 CFR 221.24 Can a hearing process be stayed to allow for settlement discussions? These sections are new and reflect the Departments' experience in implementing the interim final rules, which did not contain any provision for a stay of the hearing process. As noted previously, the Departments have been able to settle several cases after hearing requests were filed. However, in other cases, the Departments found that settlement might have been possible, but once the hearing request was referred to the ALJ, the expedited hearing schedule left little time for further settlement discussions. Under these revised interim final regulations, before a case is referred to the ALJ, the hearing requester and the Department may agree to stay the hearing process for a limited period of time, not to exceed 120 days, to allow for settlement discussions. The Department's agreement to a stay will be based on its judgment as to the likelihood of achieving settlement within the period of the potential stay. If necessary, the relevant Department and hearing requester(s) may request that FERC revise the time frame established for the license proceeding to accommodate the stay period and any subsequent hearing process that may be necessary if negotiations fail. FERC's regulations at 18 CFR 5.29(g) provide that FERC will consider such requests on a case-by-case basis. However, during our consultation process on these rules, FERC staff noted that the ILP is designed to allow for collaboration and coordination early in the process, with the goal that disagreements are worked out prior to the NEPA document stage. FERC staff expressed concern that allowance of stays of the trial-type hearing proceeding could encourage participants to wait until this late date to work out their differences. A stay would not affect the deadline for filing a notice of intervention and response, so that the hearing requester and the Department will be aware of other parties' interest in the case. 7 CFR 1.625 How will the Forest Service respond to any hearing requests? 43 CFR 45.25 How will the bureau respond to any hearing requests? 50 CFR 221.25 How will NMFS respond to any hearing requests? These sections have been renumbered because of the insertion of the stay provisions just discussed. Revisions to paragraph (a) adjust the deadline for the Departments to file their answers to accommodate the change made to 7 CFR 1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), and 50 CFR 221.22(a)(1)(ii) regarding notices of intervention and responses and the addition of 7 CFR 1.624, 43 CFR 45.24, and 50 CFR 221.24 regarding stays. The 50 days allowed for the Department's answer runs from the deadline for filing a hearing request, and it therefore includes the additional 5 days allowed above for filing a notice of intervention and response. Thus, the increase from 45 to 50 days in paragraph (a) will not further extend the overall hearing process. Paragraph (b)(3) has been added in response to comments. It requires the Department to provide a copy of any scientific studies, literature, and other documented information it relies on that are not already in the license proceeding record, as is required of the other parties by 7 CFR 1.621(b)(3), 43 CFR 45.21(b)(3), and 50 CFR 221.21(b)(3) and by 7 CFR 1.622(b)(2), 43 CFR 45.22(b)(2), and 50 CFR 221.22(b)(2). Paragraph (b)(4) has also been added, requiring the Department to state whether or not it consents to service by electronic means and, if so, by what means. The Departments received comments on various aspects of these regulations, including the content of the answer, filing a notice in lieu of an answer, and potential methods for avoiding an evidentiary hearing. Content of the answer. Some commenters suggested amending 7 CFR 1.624(b), 43 CFR 45.24(b), and 50 CFR 221.24(b) to require the Department to indicate in its answer whether it would stipulate to facts as alleged by any intervenor, and not just to facts as alleged by the hearing requester. Adoption of this suggestion would require the Department to review all facts alleged in any notice of intervention and response and take a specific position on each. The Departments disagree that the regulations should be changed. The primary function of the answer is to present the Department's position on whether the hearing request raises issues that are factual, material, and in dispute. The answer may narrow the issues for a hearing or avoid one altogether if there is no disagreement between the primary parties (the hearing requester and the party Department) as to the facts. Given that intervenors cannot raise new issues, it is not necessary to respond to a notice of intervention and response in the same way as to a hearing request. Further, reviewing every allegation raised in notices of intervention and responses would likely require extensive effort at the same time the Department is reviewing the hearing request, consulting with other Departments regarding consolidation, assembling exhibits and identifying witnesses, and preparing an answer or notice. Nothing precludes a Department from noting its position on statements in other filings, if doing so may narrow the issues for hearing. Since the regulations allow any party to the licensing proceeding to file a hearing request, intervenors are not prejudiced by this decision not to adopt the commenters' suggestion. Filing a notice in lieu of an answer. The same commenters objected to the interim rule provision allowing the Department to file a notice in lieu of an answer, arguing that the Department should be required to file an answer in all cases, and offering revised regulatory language to that effect. The proposed revisions have not been adopted. Developing a formal answer in cases where the agency agrees that the issues are factual, material, and in dispute would not be an efficient use of agency resources. In those situations, the regulations provide that the agency will file a notice in lieu of answer and may also file a list of exhibits and witnesses. 7 CFR 1.625(e), 43 CFR 45.25(e), 50 CFR 221.25(e). These commenters also stated that, if an answer remains permissive rather than mandatory, “a Department's failure to file an answer should be deemed a denial of the hearing request for failure to raise a disputed issue of material fact.” HRC comments at 35. It appears from the context that by “denial” the commenters mean rejection of the hearing request. As discussed below, the Departments favor leaving the determination of which issues warrant a hearing to an independent ALJ. Avoidance of evidentiary hearing through use of a “paper hearing.” The commenters also requested that this section be revised to state that the Department is not required to refer a case for hearing if no disputed issues of material fact exist or if any such issues can be resolved through a “paper hearing” or other procedure. The commenters would require the hearing requester to demonstrate that formal procedures such as cross-examination “will produce a fuller and truer disclosure of the facts than a paper hearing process.” HRC comments at 28. The Departments do not believe such an approach would be consistent with EPAct. EPAct section 241 expressly entitles any party to the FERC license proceeding to “a determination on the record, after opportunity for an agency trial-type hearing . . . on any disputed issues of material fact” relating to mandatory conditions and prescriptions. Importantly, section 241 requires that the Departments' implementing regulations provide hearing parties the opportunity to undertake discovery and cross-examine witnesses. Thus, Congress did not contemplate that a “ `paper hearing' or other procedures” would suffice. Avoidance of evidentiary hearing where no disputed issues of material fact exist. The commenters similarly proposed that the Department not be required to refer a case for hearing where “the answer determines that there are no disputed issues of material fact.” HRC comments at 38-40. These commenters would rely on the answer process to allow the Department to narrow or dispose of issues for hearing prior to referral to the ALJ. Other commenters supported giving the ALJ sole authority to determine whether disputed issues of material fact exist. HRC's approach would grant the Department a gatekeeper role in determining what issues actually go to hearing. Although failure to raise a disputed issue of material fact should result in dismissal of a hearing request or component issue, the Departments believe that this determination is more appropriately left to an independent ALJ. Thus, unless the hearing process is stayed for a limited time for settlement negotiations under 7 CFR 1.624, 43 CFR 45.24, 50 CFR 221.24, the regulations require referral of any hearing request, answer, and intervention to the appropriate ALJ's office, which can then determine the existence of disputed issues of material fact. This approach benefits all parties by providing necessary transparency and avoiding any appearance of bias in making the important threshold determination of whether particular issues warrant a hearing. Avoidance of evidentiary hearing by adoption of a proposed alternative condition or prescription. In the November 17, 2005, interim final rule, the Departments indicated that they would endeavor to review proposed alternatives at the earliest possible time and that, in some cases, review of a proposed alternative could “preclude the need for a hearing.” 70 FR at 69807. HRC asked for clarification as to whether the Departments contemplated formally adopting a proposed alternative on an expedited basis to avoid a hearing. The commenters stated that they oppose what they term “fast-track adoption of a proposed alternative in order to forgo a hearing,” suggesting that such an action would be inconsistent with the Departments' obligation to consider the information specified in the regulations for analyzing alternatives. HRC Comments at 70. They also suggested that public comment should be sought prior to any decision to forgo a hearing. In response to this comment, the Departments have considered their cumulative experience thus far with early evaluation of alternatives in connection with hearing requests filed under the interim final rule. As explained below (in discussing 7 CFR 1.671, 43 CFR 45.71, and 50 CFR 221.71), early, informal evaluation of proposed alternatives in conjunction with hearing requests has led to several successful settlements. The resulting condition or prescription may differ from both the Department's preliminary condition or prescription and any proposed alternative. In revising its condition or prescription pursuant to a settlement, the Department would have to follow any applicable requirements for considering available information. Nothing in the FPA requires a Department to seek public comment on a settlement that avoids the need for a hearing. The Departments believe that developing conditions and prescriptions that achieve resource protection while avoiding litigation furthers the goals of the FPA (and particularly the EPAct amendments) and should be encouraged where feasible. 7 CFR 1.626 What will the Forest Service do with any hearing requests? 43 CFR 45.26 What will DOI do with any hearing requests? 50 CFR 221.26 What will NMFS do with any hearing requests? Revisions to paragraph (b) of these regulations (renumbered like the previous section) track the changes to 7 CFR 1.612(b)(1), 43 CFR 45.12(b)(1), and 50 CFR 221.12(b)(1) concerning the number of copies. Paragraph (c)(4) has been revised to require the referral notice to specify the effective date of the referral, which will be the basis for computing other time periods during the hearing process—see 7 CFR 1.630, 43 CFR 45.30, and 50 CFR 221.30 concerning docketing; 7 CFR 1.640(a), 43 CFR 45.40(a), and 50 CFR 221.40(a) concerning the prehearing conference; 7 CFR 1.641(d), 43 CFR 45.41(d), and 50 CFR 221.41(d) concerning discovery motions; and 7 CFR 1.660(a)(2), 43 CFR 45.60(a)(2), and 50 CFR 221.60(a)(2) concerning the ALJ's decision. This change will eliminate the confusion that occasionally arose under the interim regulations as to the date on which a referral notice was “issued.” The interim final regulations provide that the Department receiving a hearing request will refer it to an appropriate ALJ office for a hearing by sending a “referral” package, which includes a “referral notice.” See 7 CFR 1.625(b)(5), 43 CFR 45.25(b)(5), 50 CFR 221.25(b)(5). The referral notice must include, among other things, “the date on which [the agency] is referring the case for docketing.” 7 CFR 1.625(c), 43 CFR 45.25(c), 50 CFR 221.25(c). In establishing deadlines for key milestones in the hearing procedure (such as docketing of the case by the ALJ, filing motions, setting the initial prehearing conference, etc.), a number of provisions refer to the “issuance of the referral notice” as the triggering event for calculating deadlines. See, e.g., 7 CFR 1.630; 43 CFR 45.30; 50 CFR 221.30. Because the interim final regulations used slightly varying terminology throughout and did not define the “issuance” date, there was a potential for confusion as to how deadlines should be calculated. Despite the provision noting that the referral notice should state the date on which the agency “is referring” the case, there was potential to construe the triggering date as being either the date the notice was sent from the referring agency, the date it was received by the ALJ, or (if different) the date stated as the “effective date” on the notice itself. This led to confusion where, for example, an agency wished to send out the referral package in advance to ensure timely receipt by the ALJ, while avoiding accelerating the dates in the hearing process (such as sending the package by Federal Express on a Friday for receipt by the ALJ's office by the deadline the following Monday). The approach of specifying in the text of the referral notice an “effective” date that was different from the date the package was sent from the agency was expressly approved by the Coast Guard ALJ presiding in the Santee-Cooper Project trial-type hearing. See Order Memorializing Prehearing Conference at 1-2 (FERC Project Number 199, license applicant South Carolina Public Service Authority) (September 15, 2006). Corresponding changes have been made to various other provisions of the revised interim final regulations. These changes are intended to make clear that, where any provision sets forth a period of time after referral of the case within which an act or event must take place, the trigger for calculating the due date will be the “effective date” stated in the text of the referral notice. This may or may not be the same as the date the notice was written, the date it was sent out from the Department, or the date it was received by the ALJ. This approach is consistent with the intent of the original regulations. If the text of the referral notice does not set forth an “effective date,” then the effective date will be the date shown as the date the notice was sent out from the Department. 7 CFR 1.631 What are the powers of the ALJ? 43 CFR 45.31 What are the powers of the ALJ? 50 CFR 221.31 What are the powers of the ALJ? The introductory language to these regulations has been revised to include the phrase, “relating to any . . . Department's condition or prescription that has been referred to the ALJ for hearing,” previously found in interim 7 CFR 1.631(i), 43 CFR 45.31(i), and 50 CFR 221.31(i). That phrase properly covers the entire hearing process, not merely the ALJ's decision. Paragraph (b) has been revised to affirm the authority of the ALJ to issue subpoenas under 7 CFR 1.647, 43 CFR 45.47, and 50 CFR 221.47. See Childers v. Carolina Power & Light Co., No. 98-77 (Dept. of Labor Admin. Review Board, Dec. 29, 2000), 2000 DOL Adm.Rev.Bd. LEXIS 123, 2000 WL 1920346. Paragraph (c) has been added to allow the ALJ to shorten or enlarge the time periods set forth in the hearing process regulations generally. Several interim regulations specified that the ALJ could change the time period otherwise applicable, while others did not. The revised interim final regulations omit those context-specific authorizations in favor of this general authority of the ALJ to adjust time periods as necessary to effectively manage the hearing process. However, the revised interim final regulations state that the ALJ cannot extend the time period for rendering a decision on the disputed issues of material fact past the deadline set in 7 CFR 1.660(a)(2), 43 CFR 45.60(a)(2), or 50 CFR 221.60(a)(2), except in the extraordinary situation where the ALJ must be replaced under 7 CFR 1.632, 43 CFR 45.32, or 50 CFR 221.32 dealing with unavailability or 7 CFR 1.633, 43 CFR 45.33, or 50 CFR 221.33 dealing with disqualification. Some commenters suggested that the regulations be amended to state expressly that the ALJ is authorized only to issue a decision limited to disputed issues of material fact and may not address the propriety of the Department's condition or prescription. Specifically, the commenters recommended that language from preamble to the interim final rules (70 FR at 69814) be incorporated into the regulations. The Departments find that the regulations already adequately state this principle, and thus regulatory changes are not needed. While the commenters focused on the provisions at 7 CFR 1.631(i), 43 CFR 45.31(i), and 50 CFR 221.31(i), a separate provision of the regulations at 7 CFR 1.660(b), 43 CFR 45.60(b), and 50 CFR 221.60(b) specifies the content of an ALJ decision. That section provides that an ALJ decision must contain “findings of fact on all disputed issues of material fact” (paragraph (b)(1)) and only those “conclusions of law necessary to make the findings of fact” (paragraph (b)(2)). Paragraph (b)(3) then specifies, “The decision [of the ALJ] will not contain conclusions as to whether any preliminary condition or prescription should be adopted, modified, or rejected, or whether any proposed alternative should be adopted or rejected.” The experience of the Departments to date is that ALJs well understand the limitations on their authority under EPAct. These commenters suggested further that 7 CFR 1.631(j), 43 CFR 45.31(j), and 50 CFR 221.31(j) be amended to specify that the ALJ is empowered, not just to “[t]ake any action authorized by law,” but in particular, to “summarily dispose of a proceeding, or part of a proceeding,” as provided under a comparable provision in the FERC procedural regulations, citing 18 CFR 385.504(b)(9). The commenters suggested that a new provision be added that lays out the procedures for summary disposition, either on motion of a party or at the initiative of the ALJ, following the example of the FERC regulations at 18 CFR 385.217. The Departments agree that ALJs have the inherent authority to summarily dispose of a proceeding that fails to raise legitimate disputed issues of material fact; failure to raise such issues means the ALJ lacks jurisdiction to hear the matter. ALJs have recognized and used this authority in ruling on motions to dismiss in trial-type-hearings conducted under the interim final rules. The Departments conclude that adding language to the regulations to make this authority explicit would be beneficial and thus are adding a new paragraph (j) expressly setting forth this authority. However, the Departments find it unnecessary to add a provision to these regulations comparable to 18 CFR 385.217. The term “disputed issue of material fact” has a distinct legal meaning in the context of these regulations, and whether or not such issues have been presented determines whether the ALJ has jurisdiction to hear any part of the matter. The inquiry is governed by the particular definition of “material fact” and related parameters set forth in these regulations. It would be confusing to litigants to set forth a new provision that uses a similar phrase in a different context (“genuine issue of fact material to the decision of a proceeding or part of a proceeding”), as the referenced FERC provision (or FRCP 56) does. 7 CFR 1.635 What are the requirements for motions? 43 CFR 45.35 What are the requirements for motions? 50 CFR 221.35 What are the requirements for motions? Paragraph (a)(2)(iii) in the interim regulations imposed a 10-page limit for motions, but the regulations contained no page limit for responses. The revised interim final regulations increase the page limit for motions in paragraph (a)(2)(iii) to 15 pages, including supporting arguments, and impose the same page limit for responses to motions in paragraph (c). 7 CFR 1.640 What are the requirements for prehearing conferences? 43 CFR 45.40 What are the requirements for prehearing conferences? 50 CFR 221.40 What are the requirements for prehearing conferences? Two minor changes have been made to these sections. As mentioned previously, paragraph (a) has been revised to set the date for the initial prehearing conference at about 20 days after the effective date—rather than after “issuance”—of the referral notice under 7 CFR 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4). And the list of topics to be covered in the initial prehearing conference under paragraph (a)(1)(iv) has been revised by adding the exchange of exhibits that will be offered as evidence under 7 CFR 1.654, 43 CFR 45.54, and 50 CFR 221.54. Some commenters suggested that parties to a trial-type hearing be required to make “all reasonable efforts” to resolve procedural disputes before the pre-hearing conference, which they reason is critical to the effective conduct of that conference. HRC Comments at 47. The Departments believe the existing requirement that parties make “a good faith effort” is sufficient. The same commenters suggested that the scope of the prehearing conference be limited to issues raised in each party's hearing requests or intervention and response. The commenters reasoned that this limitation is necessary to ensure that parties are not burdened with discussing matters beyond their expertise. The Departments agree with this proposal in part and have revised paragraph (d) to provide that “(e)ach party's representative must be fully prepared for a discussion of all issues pertinent to that party that are properly before the conference, both procedural and substantive.” To promote administrative efficiency and judicial economy, ALJs must have the discretion to address any issue properly before the prehearing conference, and each party's representative must be fully prepared to discuss issues raised by the ALJ that are pertinent to that party. These commenters further stated that parties to a trial-type hearing should always have the option of participating in the prehearing conference via telephone. They argued that prohibiting participation by telephone could create an unfair advantage for parties that have a greater ability to travel. The revised interim final rule confirms that the prehearing conference will ordinarily be held via telephone, but preserves the flexibility established in the interim final rules for the ALJ to set the venue for a prehearing conference. This flexibility is important for cases where the ALJ and the parties would benefit from participating in a prehearing conference in person. The ALJ must retain the discretion to make this determination. In-person prehearing conferences may be justified in various circumstances, including cases where parties are located in close geographic proximity or where a large number of parties must interact with each other and the ALJ to resolve procedural and substantive issues. Finally, the commenters suggested that the final rules allow a party who shows “good cause” for not attending a prehearing conference to object to any agreements or orders resulting from the prehearing conference. HRC Comments at 48-49. The commenters reasoned that parties are given only a few days' notice prior to the prehearing conference and may not be able to attend due to preexisting or unforeseen circumstances, such as lack of resources, travel delays, or medical emergencies. The ALJ's ability to manage attendance at the prehearing conference is critical to ensuring timely resolution of issues in these expedited trial-type hearings. The revised interim final rules do not adopt the commenters' suggestion, but preserve the ALJ's discretion to accommodate a party who fails to attend a prehearing conference by not waiving that party's objection to any agreements or orders resulting from the conference. Parties may notify the ALJ if they have concerns about the schedule for the prehearing conference or will be unable to attend. 7 CFR 1.641 How may parties obtain discovery of information needed for the case? 43 CFR 45.41 How may parties obtain discovery of information needed for the case? 50 CFR 221.41 How may parties obtain discovery of information needed for the case? Minor editorial changes have been made to paragraphs (a)(1), (a)(2), (g), and (h)(1) in these regulations for greater clarity. The latter three changes are intended to clarify that paragraphs (g) and (h) are not separate bases for discovery but are subject to and further qualify the general provisions in paragraphs (a) and (b) applicable to all discovery requests. As mentioned previously, paragraph (d) has been revised to set the deadline for discovery motions at 7 days after the effective date—rather than after the “issuance”—of the referral notice under 7 CFR 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4). Paragraph (h)(4) has been added to provide that, unless otherwise agreed to by the parties or authorized by the ALJ upon a showing of extraordinary circumstances, a deposition is limited to 1 day of 7 hours. This limitation is modeled on FRCP 30(d)(2). Some commenters recommended that discovery be authorized to begin immediately upon referral of a case to an ALJ, and argued that requiring authorization from an ALJ or agreement of the parties (as the current regulations do) needlessly limits discovery rights. The commenters recommended that the Departments adopt the approach of the FERC regulations at 18 CFR 385.402(a) and 385.403(a), which authorize discovery to begin without the need for ALJ involvement unless there are discovery disputes. The Departments disagree that the regulations should be changed. As noted in the preamble to the interim final rules, discovery procedures must be limited in this specialized trial-type hearing context to fit within the expedited time frame mandated by section 241 of EPAct. See 70 FR at 69812. In addition, discovery must be carefully managed to ensure that it is appropriate in light of the particular history of the underlying licensing proceeding. In most cases, the licensing proceeding will have been ongoing for a number of years, and the parties will be familiar with the key documents and issues that have been developed. Further, the Department will have already filed an administrative record to support its preliminary condition or prescription, thus making wide-ranging discovery unnecessary. Moreover, the current regulations already provide for discovery to begin promptly and continue for an adequate time. Where the parties agree, discovery may begin right away, without a need for an authorizing order of the ALJ. Any discovery motions must be expeditiously filed, within 7 days of referral of the case to the ALJ. This prompt filing enables the parties to begin as soon as possible to formulate their discovery requests and to review one another's discovery requests. See 7 CFR 1.641(d), 43 CFR 45.41(d), 50 CFR 221.41(d). The regulations further require the parties to make a good faith effort to reach agreement regarding discovery prior to the prehearing conference. See 7 CFR 1.640(d)(2), 43 CFR 45.40(d)(2), 50 CFR 221.40(d)(2). Because the scope of discovery is necessarily limited, as discussed above, the default date for the close of discovery (25 days after the prehearing conference, see 7 CFR 1.641(i), 43 CFR 45.41(i), 50 CFR 221.41(i)) should ordinarily be sufficient. However, the revised interim final regulations allow the ALJ to adjust the dates for key events, such as the prehearing conference and close of discovery, where appropriate. These commenters also suggested that the Departments should model the trial-type hearing discovery procedures on the FERC rules at 18 CFR part 385, subpart D. The Departments do not find it necessary to adopt procedures developed in the much broader FERC context. For the reasons discussed above, the limited procedures under these regulations are appropriate and adequately flexible for expedited trial-type hearing proceedings. Moreover, contrary to the commenters' suggestions, the procedures for initiating discovery under these regulations are not more onerous than FERC's. Discovery under the FERC procedures is not necessarily automatic, as Rule 410 of the FERC procedures states that a presiding officer “may, by order, deny or limit discovery” in order, among other things, to “protect a participant or other person from undue annoyance, burden, harassment or oppression” and “prevent undue delay in the proceeding.” 18 CFR 385.410(c) (emphasis added). See also 18 CFR 402(a) (scope and right of discovery is dependent upon any relevant orders of the presiding officer). Further, similar to the requirement in the Departments' regulations that discovery issues be addressed at the prehearing conference, the FERC regulations provide that the presiding officer may hold a “discovery conference” for the purpose of resolving disputes or “scheduling discovery.” The mechanisms included in these regulations are also similar to those under the FRCP. See Rule 26(d) (providing that, for most kinds of cases, parties are prohibited from directing discovery requests to other parties prior to conferring with other parties to develop a proposed discovery plan under Rule 26(f)). For these reasons, no changes to the discovery provisions are needed. 7 CFR 1.642 When must a party supplement or amend information it has previously provided? 43 CFR 45.42 When must a party supplement or amend information it has previously provided? 50 CFR 221.42 When must a party supplement or amend information it has previously provided? Paragraph (b)(1) of these regulations has been revised to give the parties 10 days after the completion of discovery to update their witness and exhibit lists, as compared to 5 days in the interim regulations. The same change has been made to 7 CFR 1.652(a)(1)(iii), 43 CFR 45.52(a)(1)(iii), and 50 CFR 221.52(a)(1)(iii) concerning the submission of written testimony. The additional time will assist the parties in preparing their cases for trial. This change will add 5 days to the overall hearing process, in addition to the 5 days added by 7 CFR 1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), and 50 CFR 221.22(a)(1)(ii) concerning notices of intervention and responses. A diagram of the trial-type hearing process under these revised interim final rules is found in the discussion of 7 CFR 1.660, 43 CFR 45.60, and 50 CFR 221.60, below. 7 CFR 1.643 What are the requirements for written interrogatories? 43 CFR 45.43 What are the requirements for written interrogatories? 50 CFR 221.43 What are the requirements for written interrogatories? A new paragraph (a)(2) has been added to these regulations, stating that, unless the parties agree otherwise, a party may propound no more than 25 interrogatories, counting discrete subparts as separate interrogatories, unless the ALJ approves a higher number upon a showing of good cause. This limitation is modeled on FRCP 33(a). 7 CFR 1.644 What are the requirements for depositions? 43 CFR 45.44 What are the requirements for depositions? 50 CFR 221.44 What are the requirements for depositions? Some commenters suggested that the regulations pose unnecessary hurdles to parties wishing to participate in a deposition via telephonic conference call, to record a deposition on videotape, or to offer testimony during the trial via telephone. They stated that the regulations, as written, allow parties to block others from participating in depositions and at the hearing via telephone, which may prejudice parties who lack the means to participate in person. The commenters stated that no party should be allowed to veto another's ability to participate by conference call or video conference, and the ALJ should not be allowed to prohibit witnesses from submitting testimony by telephone or video, in light of advances in technology. Specifically, the commenters suggested that the language “if agreed to by the parties, or approved in the ALJ's order” in paragraph (c)(4) of these regulations be struck from the provision regarding the participation in depositions by telephonic means and that the phrase “subject to any conditions the parties may agree to or the ALJ may impose” in paragraph (g) be struck from the provision regarding recording of depositions on videotape. The commenters also recommended that the phrase “the ALJ may by order allow” be struck from 7 CFR 1.652(c), 43 CFR 45.52(c), and 50 CFR 221.52(c) and be replaced with the phrase “the ALJ will allow” in the provision regarding allowing witness testimony by telephonic conference call during the trial. The Departments disagree that the regulations need to be amended. As written, the regulations do not prevent parties from participating in depositions via telephonic conference call, from recording depositions on videotape, or from offering testimony during the trial via telephone or video recording. Rather, the regulations offer parties the opportunity to address such matters by agreement. If the parties are unable to agree, the regulations appropriately allow the ALJ to manage these matters within his or her discretion, with input from the parties as appropriate. Because the ALJ will be in the best position to evaluate the parties' relative abilities to participate and the other needs in the case (need for expedition versus need for live testimony, availability of technologies, costs, etc.), this issue is best addressed on a case-by-case basis, as the current regulations contemplate. 7 CFR 1.647 What are the requirements for subpoenas and witness fees? 43 CFR 45.47 What are the requirements for subpoenas and witness fees? 50 CFR 221.47 What are the requirements for subpoenas and witness fees? Minor editorial changes have been made to paragraph (a)(1) and (a)(2) of these regulations to clarify that, while it is up to each party to decide whether or not it wishes to have a subpoena issued, a party may obtain a subpoena only by filing a motion with the ALJ. 7 CFR 1.650 When and where will the hearing be held? 43 CFR 45.50 When and where will the hearing be held? 50 CFR 221.50 When and where will the hearing be held? As revised, paragraph (a) of these regulations states that the hearing will be held at the time and place set during the prehearing conference, generally within 25 days after the completion of discovery, an increase from the 15 days provided in the interim regulations. This 25-day period includes the 5 days previously added by 7 CFR 1.642(b)(1), 43 CFR 45.42(b)(1), and 50 CFR 221.42(b)(1) concerning updated witness and exhibit lists, so the net increase is a further 5 days, to assist the parties in preparing their cases for trial. Thus, the regulatory changes discussed to this point add a total of 15 days to the overall hearing process: 5 days for the notice of intervention and response under 7 CFR 1.622(a)(1)(ii), 43 CFR 45.22(a)(1)(ii), and 50 CFR 221.22(a)(1)(ii); 5 days for the updated witness and exhibit lists under 7 CFR 1.642(b)(1), 43 CFR 45.42(b)(1), and 50 CFR 221.42(b)(1); and 5 days for the start of the hearing under 7 CFR 1.650, 43 CFR 45.50, and 50 CFR 221.50. See the trial-type hearing process diagram in the discussion of 7 CFR 1.660, 43 CFR 45.60, and 50 CFR 221.60, below. Some commenters observed that the interim regulations are silent on the location of the trial-type hearing, other than stating that the location will be decided at the prehearing conference. They suggested that each hearing be held in a field location commonly used by the parties to discuss matters concerning the hydropower project that is the subject of the hearing or, if such a locale is not possible, in Washington, DC. The commenters thus recommended that paragraph (a) of these regulations be amended to include as a final sentence, “A location local to the project and convenient to the parties will be preferred.” HRC Comments at 46. The Departments agree that the hearings should be held in a location that is convenient to the parties whenever possible. However, no change in the regulatory language is necessary. As the rule is currently written, the ALJ has discretion to manage hearing locations. As the ALJs have done in prior cases, the Departments expect that an ALJ will take into consideration factors such as convenience to the parties and to the ALJ, the location of witnesses, and the availability of adequate hearing facilities when determining the location of a hearing. 7 CFR 1.651 What are the parties' rights during the hearing? 43 CFR 45.51 What are the parties' rights during the hearing? 50 CFR 221.51 What are the parties' rights during the hearing? Paragraph (a) of these regulations has been revised to clarify that the parties' right to present evidence is qualified by the requirements of other regulations governing the parties' initial pleadings and prehearing submissions. 7 CFR 1.652 What are the requirements for presenting testimony? 43 CFR 45.52 What are the requirements for presenting testimony? 50 CFR 221.52 What are the requirements for presenting testimony? Two changes have been made to these sections with respect to written direct testimony. First, paragraph (a) has been revised to distinguish between direct testimony for each party's initial case and direct rebuttal testimony. As revised, the regulations provide that all direct testimony for each party's initial case must be prepared and submitted in written form; it will be up to the ALJ to decide whether to allow rebuttal testimony, and if so, whether to require that it be submitted in written form also. Second, as previously mentioned, paragraph (a)(1)(iii) has been revised to increase from 5 days to 10 days the time that the parties have to submit their written testimony. These are the same additional 5 days provided by revised 7 CFR 1.642(b)(1), 43 CFR 45.42(b)(1), and 50 CFR 221.42(b)(1) concerning updated witness and exhibit lists, and they do not further extend the overall hearing process. 7 CFR 1.657 Who has the burden of persuasion, and what standard of proof applies? 43 CFR 45.57 Who has the burden of persuasion, and what standard of proof applies? 50 CFR 221.57 Who has the burden of persuasion, and what standard of proof applies? The interim regulations specified that the standard of proof applicable to a trial-type hearing is a preponderance of the evidence. The interim final rule did not address the issue of which party bears the burden of proof, other than to request comments on that question. 70 FR at 69813. Commenters generally supported the rule with respect to the standard of proof; and they agreed that the burden of persuasion should be assigned, in accordance with 5 U.S.C. 556(d), to the party that is “the proponent of [the] rule or order.” They disagreed, however, as to which party is the “proponent.” According to EEI/NHA, “In the mandatory conditioning context, the proponent is the Department that seeks to impose a condition on a license.” EEI/NHA comments at 19. PacifiCorp and Southern Co. filed comments agreeing with EEI/NHA. According to HRC, on the other hand, The hearing requester is undoubtedly the proponent of a final decision by the ALJ resolving disputed issues of material facts in the requester's favor. While the Secretary's filing of mandatory conditions gives rise to the dispute, the conditions themselves are not the subject of the hearing. The conditions, and whether they are supported by substantial evidence, are only reviewable under FPA section 313[,] 16 U.S.C. 825 l. As such, the Secretary is not the proponent of an order by the ALJ in the agency trial-type hearing. Rather, the proponent is the hearing requester. HRC comments at 32. CBD and GYC filed similar comments on this issue. Other commenters argued that the hearing requester bears the burden of proof that a disputed issue of material fact exists and then the burden shifts to the Department to support its condition or prescription. The question of which party bears the burden of persuasion has been addressed in six proceedings initiated under the interim final rules. Each of six independent ALJs, including at least one from each Department, concluded that the hearing requester bears the burden of persuasion. Idaho Power Co. v. Bureau of Land Management, No. DCHD 2006-01 (DOI, May 3, 2006); In re Idaho Power Co. Hells Canyon Complex, No. 06-0001 (USDA, May 31, 2006); In re Klamath Hydroelectric Project, No. 2006-NMFS-0001 (USCG, July 6, 2006); Public Service Co. of New Hampshire v. U.S. Fish and Wildlife Service, No. DCHD-2006-02 (DOI, Aug. 9, 2006); In re Santee Cooper Hydroelectric Project, No. 2006-NMFS-0001 (USCG, Sept. 15, 2006); Avista Corp. v. Bureau of Indian Affairs, DCHD-2007-01 (DOI, Nov. 1, 2006). The Departments concur with HRC and the unanimous position of the ALJs on this issue. That position is consistent with the general rule that the burden of persuasion lies with the party seeking relief. See Schaffer v. Weast, 546 U.S. 49 (2005) (characterizing 5 U.S.C. 556(d) as applying the general rule and placing the burden of persuasion on parents challenging an individualized education plan for their child, not on the school district that proposed the plan). A hearing request under EPAct section 241 is a challenge to the factual basis for a Department's preliminary condition or prescription. The validity of the condition or prescription is not itself at issue, as EPAct allows for a hearing only on disputed issues of material fact, and the ALJ has no authority to adopt, modify, or reject a preliminary condition or prescription. See 7 CFR 1.660(b)(3), 43 CFR 45.60(b)(3), 50 CFR 221.60(b)(3). The requester seeks a decision from the ALJ that the facts are different from those assumed by the Department in its preliminary condition or prescription. The requester is thus the party seeking relief, the proponent of the order in the trial-type hearing, and the party that bears the burden of persuasion. The revised interim final regulations add a new paragraph (a) concerning the burden of persuasion and retain the standard of proof from the interim regulations in paragraph (b). The combined effect of the burden of persuasion and the standard of proof is that, in order for the hearing requester to prevail on any given issue, it must establish by a preponderance of the evidence that the facts are as the requester asserts, rather than as the Department asserts. If the ALJ finds that it is more likely than not that the facts are as the Department asserts, or that the evidence is so closely balanced that there is no preponderance in either direction, the requester will have failed to meet its burden of persuasion and the Department's factual assertions on the issue will stand. 7 CFR 1.659 What are the requirements for post-hearing briefs? 43 CFR 45.59 What are the requirements for post-hearing briefs? 50 CFR 221.59 What are the requirements for post-hearing briefs? Paragraph (a)(1) of these regulations has been revised to increase the time that the parties have to file their post-hearing briefs from 10 days to 15 days. This change will add 5 days to the overall hearing process, beyond the 15 days added by regulatory changes discussed previously. See the trial-type hearing process diagram, below. 7 CFR 1.660 What are the requirements for the ALJ's decision? 43 CFR 45.60 What are the requirements for the ALJ's decision? 50 CFR 221.60 What are the requirements for the ALJ's decision? Commenters raised a number of issues related to these regulations, including the timing and finality of the ALJ's decision and the ability of an ALJ from one Department to render a decision for another Department. Timing of the ALJ's decision in relation to the TTH process. The interim regulations provided that the ALJ must issue a decision within 30 days after the close of the hearing or 90 days after issuance of the referral notice, whichever occurs first. As explained in the preamble to the interim final rules, the Departments interpreted EPAct's requirement of “an agency trial-type hearing of no more than 90 days” as mandating that the portion of the overall hearing process from referral to the ALJ to final decision be completed within 90 days. This, in turn, necessitated a highly compressed schedule for the prehearing conference, discovery, written testimony, and post-hearing briefing, so that the ALJ could meet the 90-day deadline for issuing a decision. The Departments received numerous comments about the tight time frames in the interim regulations and also received several suggestions for revisions extending certain procedural steps. In particular, several commenters argued that the time for the ALJ's decision should fall outside the 90-day hearing time frame. EEI/NHA argued that the Departments had misconstrued the statute on this issue: [T]he extraordinarily compressed hearing schedule is inconsistent with the plain language of section 241, which provides that a “determination on the record,” i.e., the ALJ's decision, shall occur “after opportunity for agency trial-type hearing . . . .” Therefore, the statute expressly requires that the ALJ's “determination on the record” be made after completion of the hearing, not during the hearing process itself. EEI/NHA Comments at 12. EEI/NHA buttressed their argument by relying on the distinction between hearings, which are governed by one section of the APA, 5 U.S.C. 556, and decisions, which are governed by another, 5 U.S.C. 557. Reading EPAct and the APA together, EEI/NHA concluded that the rule should be revised to require that only the hearing process itself, as defined by section 556 of the APA, be conducted within the 90-day limit. It is plainly inconsistent with the structure of the APA to include the briefing and decision-making process within the 90-day limit. EEI/NHA Comments at 14. Commenters also argued that the 90-day hearing clock should exclude discovery, begin to run with the submission of written direct testimony, and close after rebuttal testimony and cross-examination. The Departments agree in part. The provisions of EPAct and the APA that the commenters cite do provide a basis for considering the post-hearing briefing and decision stages of the hearing process to be outside the 90-day requirement. However, other provisions of EPAct militate against EEI/NHA's expansive view that the 90-day period should not begin until discovery and other prehearing stages have been completed, and that the briefing and decision stages should extend for 75 days beyond the end of the 90-day period. First, EPAct required the three Departments to “establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses.” A schedule that allowed 90 days just for the taking of evidence at the hearing could hardly be considered “expedited.” Moreover, the statute's specific mention of discovery indicates that Congress intended the 90 days to cover both prehearing and hearing procedures. Second, EEI/NHA cites APA section 557 to support its argument that post-trial briefing should not be considered part of the 90-day hearing process, but rather part of the “decision.” EEI/NHA notes that this separate section addressing decisions specifically affords parties the opportunity to offer proposed findings of fact and conclusions. The relevant APA section, however, is 557(c), which expressly applies only to “a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees.” 5 U.S.C. 557(c). The ALJ's opinion in an EPAct trial-type hearing does not fall within any of these decisional categories. The preamble to the interim final rules recognized that the EPAct trial-type hearing decision is not the type contemplated by section 557(c). 70 FR at 69814. And at least one ALJ has recognized the unique nature of EPAct trial-type hearings, noting in the burden of proof context that the hearing provisions of the APA “do not however directly or clearly apply to the postures of the parties in this unique new proceeding authorized by the EPAct.” Avista Corp. at 6. Third, EPAct section 241 requires that the trial-type hearing be conducted “within the time frame established by [FERC] for each license proceeding.” A hearing process extending more than 6 months after referral of the case to the ALJ, as urged by EEI/NHA, would be difficult to square with this Congressional mandate in many cases. Indeed, as noted previously in connection with 7 CFR 1.623, 43 CFR 45.23, and 50 CFR 221.23, several procedural steps remain to be completed after issuance of the ALJ's opinion; and many, if not all, of these subsequent steps are dependent on receipt of the ALJ's opinion. Excluding discovery and post-trial briefing from the 90-day time frame and expending 90 days solely on the presentation of testimony and evidence would extend the hearing process, push back these subsequent steps, and create delays in the licensing process—a result that Congress clearly sought to avoid. In any event, EPAct requires the Departments to afford license parties an “opportunity for an agency trial-type hearing of no more than 90 days” (emphasis added). This language leaves it to the Departments' discretion whether the hearing, even excluding post-hearing briefing and the ALJ's decision, will take the full 90 days or something less than 90 days. In light of the competing considerations, the Departments have decided to extend some of the time frames in the hearing process that seemed particularly tight. As noted previously, 5 days have been added to the period for filing a notice of intervention and response, which occurs before the case is referred to the ALJ. Five days each have likewise been added to the periods for filing updated witness lists, exhibit lists, and written testimony, for commencing the hearing, and for filing post-hearing briefs, all of which occur after the case has been referred to the ALJ. Under this schedule, assuming a 5-day evidentiary hearing, the post-hearing briefs would be filed about 90 days after the case has been referred to the ALJ, as opposed to 75 days under the interim regulations. Under revised 7 CFR 1.660(a)(1), 43 CFR 45.60(a)(1), and 50 CFR 221.60(a)(1), the ALJ would then have 15 days after the deadline for filing the post-hearing briefs, which is 30 days from the close of the hearing, to render his or her decision. This timing means that the ALJ decision would be issued within 105 days after the case was referred to him or her. If necessitated by the length of the evidentiary hearing, the desirability of reply briefs, or other circumstances, the ALJ could extend the deadline for his or her decision under revised 7 CFR 1.631(c), 43 CFR 45.31(c), and 50 CFR 221.31(c), but not past 120 days after the case was referred to the ALJ, under 7 CFR 1.660(a)(2), 43 CFR 45.60(a)(2), and 50 CFR 221.60(a)(2). 3 3 The only exception would be if the ALJ has to be replaced under 7 CFR 1.632, 43 CFR 45.32, or 50 CFR 221.32 dealing with unavailability or 7 CFR 1.633, 43 CFR 45.33, or 50 CFR 221.33 dealing with disqualification. Thus, the Departments have decided to keep the (initial) post-hearing briefing within the 90-day schedule; but based on EEI/NHA's argument, have allowed the ALJ 15 to 30 days past the 90-day period to render his or her decision. Even if the ALJ takes the full 30 days, resulting in a decision 120 days after the case was referred, the decision would come before comments are due to FERC on its draft NEPA document under FERC's usual schedule set forth in 18 CFR 5.25(c). Even as extended, therefore, the trial-type hearing can be conducted “within the time frame established by [FERC] for each license proceeding,” as required by EPAct. 4 4 As noted above, a trial-type hearing process could be stayed for settlement negotiations up to 120 days under revised 7 CFR 1.624, 43 CFR 45.24, or 50 CFR 221.24, further extending the overall hearing process, but only if FERC revises the time frame for the license proceeding to accommodate the stay period and any subsequent hearing process required if settlement discussions fail. The following diagram shows the overall trial-type hearing process under the revised interim final rules. The number above each arrow shows the maximum number of days normally allowed from the completion of the previous step to the completion of the next step, while the number below each arrow shows the cumulative number of days from the beginning of the trial-type hearing process to the completion of the next step in the process. ER31MR15.000 Timing of the ALJ's decision in relation to FERC's NEPA process. The Hoopa Valley Tribe (HVT) raised a concern that, under the regulatory schedule, FERC will prepare its draft EIS at the same time the ALJ is resolving disputed material facts relating to the environment. HVT comments at 2. The Departments acknowledge that, in a given case, the ALJ's resolution of disputed factual issues may affect the timing for completing the NEPA analysis and document. Therefore, on a case-by-case basis, FERC should consider whether supplemental NEPA analysis is appropriate and proceed to supplement when a resolution of disputed factual issues results in substantial changes that are relevant to environmental concerns. Finality of the ALJ's decision. Some commenters recommended that the regulations be changed to provide that factual findings of an ALJ are advisory to the Secretaries of the Departments involved, rather than final. They contended that the Secretaries may not lawfully recognize an ALJ's finding of facts as binding, particularly where the findings are rendered by the designated ALJ of a different Department in a consolidated case. The commenters also disputed that ALJ findings may be fairly characterized as wholly factual and devoid of substantive legal rulings. Finally, the commenters contended that there is no precedent for the approach taken in the interim rules, and they pointed to the advisory nature of decisions of FERC's Dispute Resolution Panel (under 18 CFR 5.14). Specifically, the commenters suggested amending paragraph (d) of these regulations by changing the title from “Finality” to “Review,” striking from the first sentence the word “final,” and replacing it with the term “advisory.” Regardless of what practice is followed for other aspects of the licensing process before FERC, EPAct mandates that disputed issues of material fact with respect to conditions and prescriptions “ shall be determined in a single trial-type hearing” conducted by the relevant Department. 16 U.S.C. 797(e), 811 (emphasis added). The Departments have reasonably construed the statutory language to require that the factual findings of an ALJ be used by the Secretaries of the Departments involved in developing modified conditions and prescriptions. The Departments' view is supported by the district court's holding in American Rivers: [T]he Energy Policy Act explicitly provides that `[a]ll disputed issues of material fact raised by any party shall be determined in a single trial-type hearing' and makes no provision for appeals of that determination. By making the ALJ's decision on factual issues final, it a [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%3A2015-06280. Public record. Not legal advice.