Resource Agency Procedures for Conditions and Prescriptions in Hydropower Licenses, 69804-69851 [05-22677]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration
• DEPARTMENT OF THE INTERIOR
• Office of the Secretary
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 70, Number 221 (Thursday, November 17, 2005)]
[Rules and Regulations]
[Pages 69804-69851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-22677]



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Part II





Department of Agriculture





7 CFR Part 1



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Department of the Interior

43 CFR Part 45



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Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 221



Resource Agency Procedures for Conditions and Prescriptions in 
Hydropower Licenses; Interim Final Rule

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

[[Page 69804]]


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DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 1

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 45

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 221

[Docket No. 051103290-5290-01; I.D. 101105D]
RINs 0596-AC42; 1094-AA51; 0648-AU01


Resource Agency Procedures for Conditions and Prescriptions in 
Hydropower Licenses

AGENCIES: Office of the Secretary, Agriculture; Office of the 
Secretary, Interior; National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, Commerce.

ACTION: Interim final rules with request for comments.

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SUMMARY: As required by the Energy Policy Act of 2005 (EPAct), the 
Departments of Agriculture, the Interior, and Commerce are jointly 
establishing procedures for a new category of expedited trial-type 
hearings. The hearings will resolve disputed issues of material fact 
with respect to conditions or prescriptions that one or more of the 
Departments develop for inclusion in a hydropower license issued by the 
Federal Energy Regulatory Commission (FERC) under the Federal Power 
Act. The three Departments are also establishing procedures for the 
consideration of alternative conditions and prescriptions submitted by 
any party to a license proceeding, as provided in EPAct.
    Three substantively identical rules are being promulgated--one for 
each agency--with a common preamble. The rules are effective 
immediately, so that interested parties may avail themselves of the new 
hearing right and alternatives process created by the EPAct, but the 
Departments are requesting comments on ways the rules can be improved.

DATES: These rules are effective on November 17, 2005.
    Comments: You should submit your comments by January 17, 2006.

ADDRESSES: You may submit comments, identified by any of the Regulation 
Identifier Numbers (RINs) shown above (0596-AC42, 1094-AA51, or 0648-
AU01), by one of the methods listed below. Comments submitted to any 
one of the three Departments will be shared with the others, so it is 
not necessary to submit comments to all three Departments.
    1. Federal rulemaking portal: https://www.regulations.gov. Follow 
the instructions for submitting comments on-line.
    2. E-mail to any one of the following:
    a. Department of Agriculture: gsmith08@fs.fed.us; include ``RIN 
0596-AC42'' in the subject line of the message;
    b. Department of the Interior: DOIHydro--Comments@ios.doi.gov; 
include ``RIN 1094-AA51'' in the subject line of the message; or
    c. Department of Commerce: NMFS.Hydro@noaa.gov; include ``RIN 0648-
AU01'' in the subject line of the message.
    3. Facsimile to any of the following:
    a. Department of Agriculture: 202-205-1604;
    b. Department of the Interior: 202-208-4867; or
    c. Department of Commerce: 301-713-4305.
    4. Mail or hand delivery to any of the following:
    a. Deputy Chief, National Forest Systems, c/o WO Lands Staff, 
Department of Agriculture, Mail stop 1124, 1400 Independence Avenue 
SW., Washington, DC 20250-1124;
    b. Office of Policy Analysis, Office of the Secretary, Mail Stop 
4426-MIB, Department of the Interior, 1849 C Street, NW., Washington, 
DC 20240; or
    c. Chief, Habitat Protection Division, Office of Habitat 
Conservation, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Greg Smith, Director of Lands, Forest 
Service, U.S. Department of Agriculture, 202-205-1769; or Larry Finfer, 
Office of Policy Analysis, Department of the Interior, 202-208-5978; or 
Melanie Harris, Office of Habitat Conservation, National Marine 
Fisheries Service, 301-713-4300. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Public Comments

    If you wish to comment on these interim final rules, you may submit 
your comments by any of the methods listed in the ADDRESSES section 
above. We will consider all comments received by the deadline stated in 
the DATES section above. Based on the comments received and the initial 
results of implementation, we will consider promulgation of revised 
final rule within 18 months of the effective date of this rule.
    Please make your comments as specific as possible and explain the 
reason for any changes you recommend. Where possible, your comments 
should reference the specific section or paragraph of the rules that 
you are addressing.
    We will make comments available for public review during regular 
business hours. To review the comments, you may contact any of the 
individuals listed in the FOR FURTHER INFORMATION CONTACT section 
above. Individual respondents may request that we withhold their home 
address from the rulemaking record. We will honor the request to the 
extent allowable by law.
    In some circumstances we may withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.

II. Background

    A. Energy Policy Act of 2005 (EPAct). The rules that Agriculture, 
Interior, and Commerce are publishing today implement section 241 of 
EPAct, Public Law 109-58, which the President signed into law on August 
8, 2005. EPAct, which passed by wide margins in both Houses, was the 
product of years of Congressional hearings, amendments, and debates. 
The issues underlying section 241 were extensively considered by the 
109th Congress and several previous Congresses.
    Section 241 amends sections 4(e) and 18 of the Federal Power Act 
(FPA), 16 U.S.C. 797(e), 811, to provide that any party to a license 
proceeding is entitled to a determination on the record, after 
opportunity for an agency trial-type hearing of no more than 90 days, 
of any disputed issues of material fact with respect to any agency's 
mandatory conditions or prescriptions. Section 241 further mandates 
that, within 90 days of the date of enactment of EPAct, the three 
Departments establish jointly, by rule and in consultation with FERC,

[[Page 69805]]

procedures for the expedited trial-type hearing, including the 
opportunity to undertake discovery and cross-examine witnesses.
    Section 241 of EPAct also adds a new section 33 to the FPA that 
allows the license applicant or any other party to the license 
proceeding to propose an alternative condition or prescription. The 
Secretary of the agency involved must accept the proposed alternative 
if the Secretary determines, based on substantial evidence provided by 
a party to the license proceeding or otherwise available to the 
Secretary, (a) that the alternative condition provides for the adequate 
protection and utilization of the reservation, or that the alternative 
prescription will be no less protective than the fishway initially 
proposed by the Secretary, and (b) that the alternative will either 
cost significantly less to implement or result in improved operation of 
the project works for electricity production.
    New FPA section 33 further provides that, following the 
consideration of alternatives, the Secretary must file with FERC a 
statement explaining his or her reasons for accepting or rejecting any 
alternatives and the basis for any modified conditions or prescriptions 
to be included in the license. If FERC finds that the modified 
conditions or prescriptions would be inconsistent with the purposes of 
the FPA or other applicable law, it may refer the matter to its Dispute 
Resolution Service (DRS). The DRS is to consult with the Secretary and 
FERC and issue a non-binding advisory within 90 days, following which 
the Secretary is to make a final written determination on the 
conditions or prescriptions.
    This preamble explains how the Departments will comply with EPAct's 
requirements for trial-type hearings and for the receipt and analysis 
of alternative conditions and prescriptions. As explained further 
below, these new rights are being made available immediately to any 
license applicant or other party to a license proceeding for which the 
license has not already been issued as of the effective date of these 
rules.
    B. FERC's licensing process for hydroelectric power projects. On 
August 25, 2003, FERC published a final rule amending its regulations 
at 18 CFR part 5 for licensing hydroelectric power projects to 
establish a new licensing process known as the integrated licensing 
process (ILP). 68 FR 51070. The amendments were the culmination of 
efforts by FERC, other Federal and State agencies, Indian Tribes, 
licensees, and members of the public to develop a more efficient and 
timely licensing process, while ensuring that licenses provide 
appropriate resource protections required by the FPA and other 
applicable laws. 68 FR 51070. Two other processes, the traditional 
licensing process (TLP) and the alternative licensing process (ALP), 
are also available; but the ILP is the default process and FERC's 
permission must be obtained to use the TLP or ALP. Id.
    The FPA's resource protection provisions include sections 4(e), 
10(a)(1), 10(j), and 18, 16 U.S.C. 797(e), 803(a)(1), 803(j), and 811. 
Section 10(a)(1) provides that hydropower licenses must be best adapted 
to a comprehensive plan for improving or developing the affected 
waterways for all beneficial public uses, and must include provisions 
for the protection of fish and wildlife and other beneficial public 
uses. Section 10(j) provides that Interior and Commerce may make 
recommendations to FERC on conditions for the protection, mitigation, 
and enhancement of fish and wildlife affected by the project. FERC must 
include those conditions in the license unless it finds that they would 
be inconsistent with the purposes and requirements of the FPA or other 
applicable law, and that conditions selected by FERC will adequately 
protect, mitigate damages to, and enhance fish and wildlife.
    Under FPA section 4(e), licenses for projects located within 
Federal reservations must include conditions mandated by the Department 
that manages the reservation, which in most cases is Agriculture or 
Interior. Section 4(e) also requires FERC to give environmental values, 
including fish and wildlife and recreation, equal consideration with 
hydropower development. Under section 18, licenses must also include 
fishways if they are prescribed by Interior or Commerce. As provided in 
section 1701(b) of the Energy Policy Act of 1992, Public Law 102-486, 
``the items which may constitute a `fishway' under section 18 for the 
safe and timely upstream and downstream passage of fish shall be 
limited to physical structures, facilities, or devices necessary to 
maintain all life stages of such fish, and project operations and 
measures related to such structures, facilities, or devices which are 
necessary to ensure the effectiveness of such structures, facilities, 
or devices for such fish.''
    The ILP is a multi-year process--involving more than 20 sequential 
steps, most with associated deadlines--that constitutes a logical 
progression of information development, exchange, and analysis 
involving FERC, other Federal and State agencies, Indian Tribes, the 
license applicant, and members of the public. The ILP brings together 
activities that previously were conducted over a much longer time 
frame, including consultation, studies, dispute resolution, scoping and 
document preparation under the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. (NEPA), and water quality certification.
    There are two main phases to the process: (1) A pre-application 
phase involving activities before the filing with FERC of a license 
application, and (2) a post-application phase. The process begins with 
the applicant's filing with FERC a notice of intent (NOI) to file an 
application for an original, new, or subsequent license. 18 CFR 5.5. 
The NOI must be filed 5-5\1/2\ years before the existing license 
expires. 18 CFR 5.5(d). Along with the NOI, the applicant must file a 
pre-application document providing available information on 
engineering, economics, and the existing environment, including data or 
studies relevant to the environment and known and potential impacts of 
the proposed project on various resources. 18 CFR 5.6.
    Other steps in the pre-application phase include FERC's issuance of 
a scoping document, holding of a scoping meeting, and issuance of a 
process plan and schedule. 18 CFR 5.8. During these steps, resource 
issues and the need for information and studies are identified, and the 
scoping of issues under NEPA is initiated. 18 CFR 5.8.
    Eventually, the applicant files a proposed study plan, the plan is 
assessed through meetings and comments, and the applicant files a 
revised study plan for FERC's approval. 18 CFR 5.11-.13. After FERC's 
approval, the plan may be subject to a study dispute resolution process 
if disputes arise. 18 CFR 5.14. Approximately 1 year elapses from 
issuance of the NOI to final approval of a study plan.
    Studies are then conducted, reviewed, and modified if necessary. 18 
CFR 5.13-.15. Studies may extend for more than one season. After 
completion of the studies, the applicant files a preliminary licensing 
proposal, which is subject to comment and additional information 
requests. 18 CFR 5.16.
    At least 2 years before the existing license expires, the 
application must be filed with FERC. 18 CFR 5.17(a). Within 14 days of 
that filing, FERC must issue public notice of the filing and a 
preliminary schedule for expeditious processing of the application, 
including dates for the following steps: Filing of preliminary 
conditions and prescriptions by the Departments; issuance of an 
environmental

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assessment (EA), a draft EA, or a draft environmental impact statement 
(EIS); filing of comments on any draft EIS or EA; filing of mandatory 
conditions or prescriptions by the agencies in response to any draft 
EIS or EA; and issuance of any final EIS or EA. 18 CFR 5.19(a).
    When FERC determines that the application meets various 
requirements, that the approved studies have been completed, that any 
deficiencies in the application have been cured, and that no other 
additional information is needed, it will issue a notice of acceptance 
and readiness for environmental analysis (REA). 18 CFR 5.22. That 
notice must include a request for preliminary conditions and 
prescriptions from the Departments. 18 CFR 5.22.
    Comments, protests, recommendations, and preliminary conditions and 
prescriptions must be filed with FERC within 60 days after the REA. 18 
CFR 5.23(a). All reply comments must be filed within 105 days of the 
REA. 18 CFR 5.23(a). If FERC determines that an EIS or a draft and 
final EA will be prepared, FERC will issue a draft EIS or EA no later 
than 180 days from the deadline for responses to the REA. 18 CFR 
5.25(a). The draft EIS or EA must include, for comment, any preliminary 
conditions or prescriptions. 18 CFR 5.25(b).
    Comments to the draft EIS or EA must be filed within 30 or 60 days 
after issuance of the draft, as specified by FERC. 18 CFR 5.25(c). 
Modified mandatory conditions and prescriptions must be filed within 60 
days after the deadline for filing comments, and FERC will issue a 
final EIS or EA within 90 days after the deadline for filing the 
modified mandatory conditions and prescriptions. 18 CFR 5.25(d)-(e). 
FERC will then issue the license order including any mandatory 
conditions and prescriptions. 18 CFR 5.29(h).
    C. Authority for mandatory conditions and prescriptions under the 
Federal Power Act. Provisions of the FPA, 16 U.S.C. 791-823c, vest in 
the Departments the authority to provide conditions and/or 
prescriptions to be included in licenses issued by FERC for 
hydroelectric generating facilities (see also 18 CFR parts 4, 5, and 
16).
    Under section 18 of the FPA, 16 U.S.C. 811, Interior, acting 
through the Fish and Wildlife Service (FWS), and Commerce, acting 
through the National Marine Fisheries Service (NMFS) within the 
National Oceanic and Atmospheric Administration (NOAA), may prescribe 
fishways to provide for the safe, timely, and effective passage of 
fish.
    Under section 4(e) of the FPA, 16 U.S.C. 797(e), Agriculture and 
Interior may establish conditions necessary for the adequate protection 
and utilization of reservations. The term ``reservations,'' as used in 
the FPA, includes certain lands and facilities under the jurisdiction 
of the U.S. Forest Service within Agriculture, and various components 
of Interior (namely, FWS, the National Park Service, the Bureau of Land 
Management, the Bureau of Reclamation, or the Bureau of Indian 
Affairs).
    Through these statutory provisions, the FPA authorizes the 
Departments to set conditions or prescriptions for the protection of 
public and Tribal resources that may be affected when navigable 
waterways or Federal reservations are used for hydroelectric projects 
licensed by FERC.
    The Departments' conditions and prescriptions must be incorporated 
by FERC into any hydropower license it issues under the FPA. This 
authority has been recognized and upheld by the Federal courts, 
including the Supreme Court. See Escondido Mutual Water Co. v. La Jolla 
Band of Mission Indians, 466 U.S. 765 (1984); American Rivers v. FERC, 
201 F.3d 1186 (9th Cir. 1999); Bangor Hydro-Electric Co. v. FERC, 78 
F.3d 659 (D.C. Cir. 1996). After a license has been issued, the 
license, including the Departments' conditions and prescriptions, is 
subject to rehearing before FERC and subsequent judicial review under 
the FPA's appeal procedures. The FPA gives the Federal appeals courts 
exclusive jurisdiction over such appeals. 16 U.S.C. 825l(b).
    D. Mandatory Conditions Review Process (MCRP). On January 19, 2001, 
Interior and Commerce established, through an interagency policy, the 
MCRP. The MCRP provided license applicants and interested parties an 
opportunity to review and comment on the two Departments' preliminary 
conditions and prescriptions for specific hydropower licenses. In 
addition, commenters were encouraged to provide additional information 
regarding the Departments' conditions and prescriptions. The MCRP was 
crafted to work within FERC's deadlines and its process under NEPA, 
while affording interested parties an opportunity to comment on the 
record concerning the two Departments' conditions and prescriptions.
    Before finalizing the MCRP, Interior and Commerce provided a public 
comment period on a draft MCRP. 65 FR 77889 (Dec. 13, 2000). Many 
commenters proposed that the Departments provide, in addition to review 
and comment, an opportunity for an evidentiary hearing or an 
administrative appeal. The Departments decided not to adopt such 
procedures at that time.
    After 3 years of experience using the MCRP, each of the Departments 
issued proposed rules to codify the MCRP with clarifications. 69 FR 
54602 (Sept. 9, 2004) (Interior); 69 FR 54615 (Sept. 9, 2004) 
(Commerce). Interior also proposed to add a new administrative appeals 
process to follow review and comment under the MCRP. Interior again 
considered but decided not to adopt an evidentiary hearing process, out 
of concern that there was insufficient time in the FERC licensing 
process to accommodate it. 69 FR 54603.
    Neither Department has yet issued a final rule codifying the MCRP. 
Given the new procedures mandated by EPAct, which effectively subsume 
or supersede the MCRP, there no longer appears to be a need for such a 
rule or to continue implementing the MCRP.
    E. How the trial-type hearing and alternatives process will fit 
into the FERC licensing timeframe. As noted in the SUMMARY section 
above, to comply with EPAct's mandate, the Departments are promulgating 
three substantively identical rules, one for each Department, with this 
common preamble. Like the now superseded MCRP, the new hearing process 
established by these rules has been carefully crafted to work within 
FERC's time frame and NEPA process, while affording interested parties 
an opportunity to present evidence on disputed issues of material fact 
with respect to the Departments' conditions and prescriptions.
    Key steps in FERC's time frame, as related to our hearings and 
alternatives processes, are as follows. This assumes that, in a 
contested case, FERC will issue either a draft EA or a draft EIS under 
18 CFR 5.25, rather than an EA not preceded by a draft under 18 CFR 
5.24.
    1. FERC issues its REA notice.
    2. Responses to the REA, including the Departments' preliminary 
conditions and prescriptions, are due 60 days later.
    3. FERC issues its draft NEPA document (EA or EIS) within 180 days 
after the deadline for responses to the REA.
    4. Comments on the draft NEPA document are due 30-60 days later.
    5. The Departments' modified conditions and prescriptions are due 
60 days after the deadline for comments on the draft NEPA document.
    6. FERC issues a final NEPA document within 90 days after the

[[Page 69807]]

deadline for the modified conditions and prescriptions.
    7. FERC issues the license order with any conditions and 
prescriptions.
    Under these rules on trial-type hearings and alternative conditions 
and prescriptions, the following actions will occur within the steps 
listed above for FERC's licensing process. The hearing and alternatives 
processes are separate and distinct, but they have a few common points 
of reference, as noted below.
    1. FERC issues its REA notice, starting the 60-day period for 
responses.
    2. By the end of the 60-day period, the Departments will submit any 
preliminary conditions and prescriptions they have developed.
    2a. The parties will have 30 days to request a hearing on any 
disputed issues of material fact. The parties will have the same 30 
days to submit alternative conditions and prescriptions.
    2b. The parties will have 15 days after hearing requests are due to 
file a notice of intervention and response with regard to any other 
party's hearing request.
    2c. The Departments will have 30 days after responses are due to 
determine whether to stipulate to some or all of the facts alleged to 
be in dispute and to file an answer to the hearing request. During the 
same period, the Departments will consider whether any proposed 
alternative condition or prescription could preclude the need for a 
hearing.
    2d. If there is still a need for a hearing, the Departments will 
refer the case to an administrative law judge (ALJ).
    2e. Within 90 days, the ALJ will conduct the hearing process on any 
disputed issues of material fact. The process will include an initial 
prehearing conference, discovery, an evidentiary hearing for the 
parties to present their evidence and cross-examine witnesses, the 
submission of post-hearing briefs, and issuance of a final decision.
    3. FERC will issue its draft NEPA document, which will include for 
comment the Departments' preliminary conditions and prescriptions and 
any alternatives proposed by the parties.
    4. The parties and the Departments will submit their comments on 
the draft NEPA document, using the facts as found by the ALJ.
    4a. The Departments will consider and analyze comments received on 
their preliminary conditions and prescriptions, the ALJ's decision on 
disputed issues of material fact, comments received on the draft NEPA 
document, and any alternative conditions and prescriptions.
    5. The Departments will issue their modified conditions and 
prescriptions and file their analysis of the alternatives within 60 
days of the close of the comment period on FERC's draft NEPA document.
    5a. FERC will evaluate the modified conditions and prescriptions in 
light of the purposes of the FPA and other applicable law. If it finds 
they are inconsistent, FERC may refer the matter to the DRS.
    5b. The DRS will consult with the Departments and FERC and issue a 
non-binding advisory within 90 days.
    5c. The Departments will consider the DRS advisory and issue a 
final written determination on the conditions and prescriptions.
    6. FERC will issue its final NEPA document.
    7. FERC will issue the license order with any mandatory conditions 
and prescriptions.
    This approach has several benefits for the parties, FERC, and the 
Departments. It provides for the submission of alternative conditions 
and prescriptions in time for FERC to include them in its draft NEPA 
document and for the Departments to consider them along with any 
hearing requests and responses from other parties. This will enable 
each Department to consider at an early stage whether it wants to 
accept a proposed alternative and possibly avoid the need for a hearing 
under these rules. Having the hearing requests, responses, and 
alternatives together will also assist the Departments in deciding 
whether to stipulate to some facts alleged to be in dispute or 
otherwise try to narrow the issues to be heard.
    Moreover, since the hearing process will be completed by the time 
FERC issues its draft NEPA document, the parties will have the benefit 
of the ALJ's decision in preparing their comments on that document. The 
Departments will likewise have the ALJ's decision to use in analyzing 
the alternatives and developing their modified conditions and 
prescriptions within FERC's time frame.
    In many cases, this sequence and timing will need to be adjusted 
with respect to any license application that is currently pending 
before FERC, if the license applicant or another party wants a trial-
type hearing or wants to submit an alternative condition or 
prescription. A number of pending applications are already past the 
early steps listed above. In such cases, the Departments will work with 
FERC and the parties to fit the hearing and alternatives processes into 
the remaining steps.
    F. Overview of the hearing process. As noted previously, section 
241 of EPAct provides that ``[t]he license applicant and any party to 
the proceeding shall be entitled to a determination on the record, 
after opportunity for an agency trial-type hearing of no more than 90 
days, on any disputed issues of material fact'' with respect to any 
Department's conditions or prescriptions. ``All disputed issues of 
material fact raised by any party shall be determined in a single 
trial-type hearing to be conducted by the relevant resource agency * * 
*.'' The three Departments are required to ``establish jointly, by 
rule, the procedures for such expedited trial-type hearing, including 
the opportunity to undertake discovery and cross-examine witnesses * * 
*.''
    In the Departments' experience, full administrative adjudications 
involving prehearing conferences, discovery, motions, one or more 
evidentiary hearings, briefing, and a decision often take over a year 
to complete, especially if the case involves multiple parties and 
complex technical issues. Shortening this process to 90 days will be a 
significant challenge for the parties and the ALJ, and will require 
adherence to fairly stringent procedural limits and deadlines.
    Under these rules, the 90-day period for the hearing process will 
commence when the case is referred to an ALJ for a hearing, and will 
end when the ALJ issues his or her decision. During that period, at 
least one prehearing conference will be held; discovery will be 
conducted as approved by the ALJ or agreed to by the parties; evidence, 
including direct written testimony and oral cross-examination, will be 
presented at a hearing; post-hearing briefs will be filed; and a 
decision will be issued by the ALJ.
    As described in section II.E. above, before the case is referred 
for a hearing, each Department will have filed with FERC its 
preliminary conditions or prescriptions, with supporting rationale and 
an index to the administrative record of supporting documents. Any 
party to the FERC license proceeding may then file with the appropriate 
Department a request for hearing, identifying the material facts that 
are disputed regarding the preliminary conditions or prescriptions. 
Other parties to the license proceeding may then submit responses to 
any hearing request and intervene in the hearing process.
    The Department involved will review the parties' submissions to 
determine whether to stipulate to any facts as stated by the parties, 
object that any issue raised by a party either is not

[[Page 69808]]

factual (i.e., is a legal conclusion or a policy determination) or is 
not material, or agree that the issues raised are factual, material, 
and disputed. Unless all disputed issues have been resolved, the 
Department will refer the case to an ALJ for a hearing.
    If two or more Departments file preliminary conditions and/or 
prescriptions and receive hearing requests, they will consult with each 
other to determine whether the requests should be consolidated for 
hearing. In accordance with EPAct, a single hearing will be held for 
all conditions issued by one Department (section 241(a)) or for all 
prescriptions issued by one Department (section 241(b)). While EPAct 
does not mandate the consolidation of hearing requests in other 
circumstances, the Departments expect to consolidate the cases if there 
are common issues of fact. In that event, one ALJ would be designated 
to conduct the consolidated hearing on behalf of the Departments 
involved.
    G. Overview of the alternatives process. While the specific 
alternatives process added by section 241 of EPAct is new, for years 
the Departments have received and considered alternatives from license 
parties on an informal basis, and have revised preliminary conditions 
and prescriptions as new information was received. Under the new 
process, whether or not a license party requests a hearing, it may 
submit one or more conditions or prescriptions for consideration by the 
appropriate Department as an alternative to any preliminary conditions 
or prescription that the Department has filed. The alternatives are due 
30 days after the deadline for the Departments to file their 
preliminary conditions and prescriptions, which will allow FERC to 
include the alternatives in its draft NEPA document.
    If any party has requested a hearing on disputed issues of material 
fact with respect to a preliminary condition or prescription, the ALJ's 
decision will generally be issued shortly before FERC issues its draft 
NEPA document. The Departments will use the comment period on the draft 
NEPA document to review their preliminary conditions and prescriptions 
in light of the findings of fact from the ALJ.
    Within 60 days of the end of the comment period on FERC's draft 
NEPA document, each Department will formally analyze the alternative 
conditions and/or prescriptions it has received, together with the 
ALJ's findings of fact, comments received on the preliminary conditions 
and prescriptions, and comments received on FERC's draft NEPA document. 
The Department will then issue its modified conditions or prescriptions 
and file the written statement required by FPA section 33(a)(4) or 
(b)(4).
    The written statement must explain the basis for the modified 
conditions or prescriptions and, if the Department did not accept an 
alternative condition or prescription, its reasons for not doing so. As 
provided in section 33, the statement must demonstrate that the 
Department gave equal consideration to the effects of its modified 
conditions or prescriptions and any alternatives not accepted ``on 
energy supply, distribution, cost, and use; flood control; navigation; 
water supply; and air quality (in addition to the preservation of other 
aspects of environmental quality) * * *.''
    The requirement for ``equal consideration'' has been construed 
under FPA section 4(e) to mean that each factor must be considered 
equally with the others, i.e., given `` `full and genuine consideration 
* * *' '' State of California v. FERC, 966 F.2d 1541, 1550 (9th Cir. 
1992), quoting from legislative history at 123 Cong. Rec. S. 15107. 
``Equal consideration'' is not the same as ``equal treatment''; rather 
the agency ``must balance the public interest in all of its stated 
dimensions, give equal consideration to conflicting interests, and 
reach a reasoned factual decision.'' Id.; accord Conservation Law 
Found. v. FERC, 216 F.3d 41 (D.C. Cir. 2000); see also U.S. Dept. of 
Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992).

III. Section-by-Section Analysis

    There are three different versions of the regulations that follow 
for the trial-type hearing and alternatives process, one version each 
for Agriculture, Interior, and Commerce. The structure and content of 
the regulations are the same, but there are minor variations to account 
for differences in the names of the Departments and their 
organizational components. The three versions also vary somewhat in 
their references to conditions and prescriptions, since Agriculture 
does not develop prescriptions under FPA section 18 and Commerce does 
not develop conditions under FPA section 4(e), while Interior may do 
either or both.
    For each section discussed below, the CFR title, section number, 
and heading for each Department are shown, 7 CFR for Agriculture, 43 
CFR for Interior, and 50 CFR for Commerce.

General Provisions

    7 CFR 1.601 What is the purpose of this subpart, and to what 
license proceedings does it apply?
    43 CFR 45.1 What is the purpose of this part, and to what license 
proceedings does it apply?
    50 CFR 221.1 What is the purpose of this part, and to what license 
proceedings does it apply?
    Paragraph (a) of this section explains the basic purpose of the 
trial-type hearing regulations. It further explains that, if two or 
more Departments consolidate hearing requests involving the same 
license application, the regulations of one Department may govern the 
steps preceding the referral of the case to an ALJ, while the 
(substantively identical) regulations of another Department may govern 
the steps following the referral of the case to an ALJ. Paragraph (b) 
explains the basic purpose of the alternative process regulations.
    Paragraph (c) covers situations in which a Department does not 
exercise its authority to submit conditions or prescriptions for 
inclusion in the license, but reserves the authority to do so during 
the term of the license, e.g., if conditions change or the Department 
obtains additional information. If the Department notifies FERC that it 
is reserving its authority, the hearing and alternatives processes 
under these rules will be available to the license parties if and when 
the Department subsequently exercises its reserved authority. The 
license parties cannot request a hearing regarding the reservation of 
authority itself, or submit alternatives to such reservation.
    Paragraph (d) provides that these regulations apply to any 
hydropower license proceeding for which the license has not been issued 
as of the effective date of these rules and for which the Department 
involved has developed or develops one or more preliminary conditions, 
conditions, preliminary prescriptions, or prescriptions. A cross 
reference to 7 CFR 1.604, 43 CFR 45.4, or 50 CFR 221.4 is included for 
license applications that are pending as of the effective date of these 
rules.
    7 CFR 1.602 What terms are used in this subpart?
    43 CFR 45.2 What terms are used in this part?
    50 CFR 221.2 What terms are used in this part?
    This section defines the meaning of various terms used in the 
regulations. Most of the definitions provided are self-explanatory, but 
a few deserve further discussion.
    ``Intervention'' is defined as a process by which a person who did 
not request a hearing under 7 CFR 1.621, 43 CFR 45.21, or 50 CFR 221.21 
can participate as a party in the hearing by filing a notice of 
intervention and response

[[Page 69809]]

under 7 CFR 1.622, 43 CFR 45.22, or 50 CFR 221.22. A person who has 
intervened in the license proceeding before FERC is not automatically 
an intervenor in the hearing process under these regulations; but 
anyone who has intervened in the license proceeding is eligible to 
intervene in the hearing process.
    ``Material fact'' is defined as ``a fact that, if proved, may 
affect a Department's decision whether to affirm, modify, or withdraw 
any preliminary condition or prescription.'' To use a fishway 
prescription as an example, issues of material fact could include but 
are not limited to issues such as whether the river has historically 
been a cold or warm water fishery or whether fish have historically 
been found above or below the dam. Such issues, if disputed and 
material to the prescription involved in a given case, appear well 
suited to the trial-type hearing mandated by EPAct. On the other hand, 
legal or policy issues would not qualify as issues of material fact.
    ``Party'' is defined to mean a party to the hearing process under 
these regulations, as distinguished from a ``license party,'' which is 
a party to the FERC license proceeding. A ``party'' includes a license 
party that requests a hearing under section 7 CFR 1.621, 43 CFR 45.21, 
or 50 CFR 221.21, a license party that files a notice of intervention 
and response under section 7 CFR 1.622, 43 CFR 45.22, or 50 CFR 221.22, 
and the Departmental component that has filed a preliminary condition 
or prescription in the license proceeding. If two or more hearing 
requests are consolidated under 7 CFR 1.623, 43 CFR 45.23, and 50 CFR 
221.23, the term ``party'' will also include any other Departmental 
component involved in the hearing.
    7 CFR 1.603 How are time periods computed?
    43 CFR 45.3 How are time periods computed?
    50 CFR 221.3 How are time periods computed?
    Paragraph (a) of this section describes the method for computing 
time periods under the regulations. Paragraph (b) covers requests for 
extensions of time. It provides that no extension of time can be 
granted to file a request for a hearing under section 7 CFR 1.621, 43 
CFR 45.21, or 50 CFR 221.21; a notice of intervention and response 
under section 7 CFR 1.622, 43 CFR 45.22, or 50 CFR 221.22; an answer 
under section 7 CFR 1.624, 43 CFR 45.24, or 50 CFR 221.24; or any 
document under the alternatives process. This limitation is necessary 
to ensure timely completion of the hearing and alternatives processes 
and because, as a practical matter, there will be no ALJ available who 
could rule on a motion for extension of time for these documents. 
Extensions of time to file other documents under the hearing process 
may be granted by the ALJ, but only for good cause.
    7 CFR 1.604 What deadlines apply to pending applications?
    43 CFR 45.4 What deadlines apply to pending applications?
    50 CFR 221.4 What deadlines apply to pending applications?
    This section contains special applicability provisions for cases in 
which preliminary conditions, conditions, preliminary prescriptions, or 
prescriptions have already been filed as of the effective date of these 
rules, but the license has not been issued. Normally, parties will have 
30 days from the Departments' filing of preliminary conditions and 
prescriptions to request a hearing or submit alternatives. 7 CFR 1.621, 
1.671; 43 CFR 45.21, 45.71; 50 CFR 221.21, 221.71. But in cases 
currently pending before FERC, the Departments may have already filed 
their preliminary conditions, conditions, preliminary prescriptions, or 
prescriptions by the effective date of these rules.
    Under this section, hearing requests and alternatives in such cases 
will be due 30 days after the effective date of these rules. Any notice 
of intervention and response will be due 15 days thereafter, consistent 
with 7 CFR 1.622, 43 CFR 45.22, and 50 CFR 221.22. Within the next 75 
days, the Departments will consult with each other to determine whether 
to consolidate any hearing requests they may have received, and with 
FERC to determine a time frame for each hearing process. Depending on 
how far along each license proceeding has progressed, FERC may need to 
suspend or extend the remaining steps to accommodate the hearing 
process and alternatives analysis required by EPAct.
    If, within the first 30 days after the effective date of these 
rules, hearing requests are filed in a number of cases with pending 
applications, it may not be possible for the Departments and their ALJ 
offices to handle them all simultaneously. Thus, the time frames worked 
out with FERC may provide for a staggering of the requested hearing 
processes, with priority being given to cases where the applications 
are closest to issuance. In that case, the Departments will not 
necessarily file answers on all hearing requests simultaneously. They 
will, however, issue notices to the parties in each case informing them 
of the time frame for the hearing process and the deadline for the 
answer. Once the answer is filed in any case, the rest of the hearing 
process will follow the normal schedule set out in these rules.
    If no hearing request is received but alternatives are proposed 
within 30 days of the effective date of these rules, the Departments 
will consult with each other to determine whether they have related 
conditions or prescriptions and alternatives that should be considered 
at the same time, and they will consult with FERC to determine a time 
frame for the alternatives process. They will then issue notices to the 
license parties, informing them of the time frame for the Departments' 
filing of modified conditions and prescriptions under 7 CFR 1.672(b), 
43 CFR 45.72(b), and 50 CFR 221.72(b).

Hearing Process

Representatives

    7 CFR 1.610 Who may represent a party, and what requirements apply 
to a representative?
    43 CFR 45.10 Who may represent a party, and what requirements apply 
to a representative?
    50 CFR 221.10 Who may represent a party, and what requirements 
apply to a representative?
    This section identifies who may represent an individual, 
partnership, corporation, governmental unit, or other entity. It also 
provides that each representative must file a notice of appearance and 
may be disqualified by the ALJ for misconduct or other good cause.

Document Filing and Service

    7 CFR 1.611 What are the form and content requirements for 
documents under Sec. Sec.  6.610 through 1.660?
    43 CFR 45.11 What are the form and content requirements for 
documents under this subpart?
    50 CFR 221.11 What are the form and content requirements for 
documents under this subpart?
    This section specifies the format, caption, signature, and contact 
information requirements for documents filed under the hearing process. 
These requirements apply to documents prepared as part of the hearing 
process, such as a hearing request, notice of intervention and 
response, answer, motion, reply, discovery request, discovery response, 
written testimony, or brief. They do not apply to supporting materials 
prepared separately, such as studies, reports, articles, etc., that the 
parties may submit as attachments to their hearing process documents.
    7 CFR 1.612 Where and how must documents be filed?

[[Page 69810]]

    43 CFR 45.12 Where and how must documents be filed?
    50 CFR 221.12 Where and how must documents be filed?
    This section establishes requirements for the filing of documents. 
Each Department has designated an office where documents must be filed 
before a case has been referred for docketing and assignment to an ALJ. 
After the referral, documents are to be filed with the appropriate 
ALJ's office. Documents may be filed by hand delivery, overnight 
delivery, or fax and are considered filed when received.
    7 CFR 1.613 What are the requirements for service of documents?
    43 CFR 45.13 What are the requirements for service of documents?
    50 CFR 221.13 What are the requirements for service of documents?
    This section provides that any request for a hearing and any notice 
of intervention and response must be served on FERC and all parties to 
the FERC license proceeding. All other filed documents and all 
documents issued by the ALJ must be served on the parties to the 
hearing. Service generally may be made by hand delivery, overnight 
delivery, fax, or e-mail. A certificate of service is required.

Initiation of Hearing Process

    7 CFR 1.620 What supporting information must the Forest Service 
provide with its preliminary conditions?
    43 CFR 45.20 What supporting information must a bureau provide with 
its preliminary conditions or prescriptions?
    50 CFR 221.20 What supporting information must NMFS provide with 
its preliminary conditions or prescriptions?
    Under this section, when a component of any Department files a 
preliminary condition or prescription with FERC, it must provide a 
supporting rationale, along with an index to its administrative record 
that identifies the studies or other documents relied upon.
    7 CFR 1.621 How do I request a hearing?
    43 CFR 45.21 How do I request a hearing?
    50 CFR 221.21 How do I request a hearing?
    This section provides that any party to the FERC license proceeding 
may request a hearing on disputed issues of material fact with respect 
to a preliminary condition or prescription by filing a request with the 
designated Departmental office. The request must be filed within 30 
days after the deadline for filing preliminary conditions or 
prescriptions with FERC (or for pending applications that are already 
past that point in the FERC licensing process, within 30 days of the 
effective date of these regulations). A hearing request must contain a 
list of the factual issues that the requester disputes; the basis for 
the requester's opinion that the facts, as stated by the Departmental 
component, are unfounded or erroneous; citations to any studies or 
other documents relied upon, and copies of any such documents that are 
not already in the record of the license proceeding. The requester must 
also provide a list of the witnesses and exhibits it intends to use at 
the hearing; this list will assist other parties in planning their 
discovery.
    7 CFR 1.622 How do I file a notice of intervention and response?
    43 CFR 45.22 How do I file a notice of intervention and response?
    50 CFR 221.22 How do I file a notice of intervention and response?
    Under this section, any other party to the FERC license proceeding 
may file a response to the hearing request and a notice of intervention 
in the hearing. The response and notice must be filed with the 
designated Departmental office within 15 days after a request for 
hearing is served. This deadline corresponds to the ILP deadline for 
filing reply comments to the preliminary conditions or prescriptions, 
i.e., 105 days after the REA notice. 18 CFR 5.23(a).
    The response may not raise new disputed issues of material fact, 
since the deadline for doing so (under section 7 CFR 1.621, 43 CFR 
45.21, or 50 CFR 221.21) will have passed. But the party filing a 
response may agree with the facts as stated either by the Departmental 
component or the hearing requester (or a mix of the two). In any event, 
the response must explain the party's position with respect to the 
information provided by the requester. The party may either rely on the 
information provided by the Departmental component or the requester or 
may provide additional information. The party must also provide a list 
of the witnesses and exhibits it intends to use at the hearing.
    7 CFR 1.623 When will hearing requests be consolidated?
    43 CFR 45.23 When will hearing requests be consolidated?
    50 CFR 221.23 When will hearing requests be consolidated?
    This section provides that the Departments will confer on any 
hearing requests they receive, decide whether to consolidate them for 
hearing under designated criteria, and if so, decide which Department's 
ALJ will conduct the hearing. As explained previously, all hearing 
requests with respect to any conditions from the same Department will 
be consolidated for hearing, as will all hearing requests with respect 
to any prescriptions from the same Department.
    In other circumstances--conditions and prescriptions from the same 
Department, conditions from more than one Department, prescriptions 
from more than one Department, etc.-- the Departments may consolidate 
the hearings if there are common issues of material fact or 
consolidation is otherwise appropriate. Consolidation will often 
benefit both the Departments and the parties by avoiding duplication of 
effort and the risk of inconsistent results.
    7 CFR 1.624 How will the Forest Service respond to any hearing 
requests?
    43 CFR 45.24 How will the bureau respond to any hearing requests?
    50 CFR 221.24 How will NMFS respond to any hearing requests?
    Under this section in the Agriculture and Interior regulations, the 
Departmental component that filed the preliminary condition or 
prescription at issue must file an answer to any hearing request within 
45 days after the deadline for filing any hearing requests 
(approximately 30 days after the deadline for filing any notice of 
intervention and response). The Commerce regulation is slightly 
different, since Commerce does not have a separate office where NMFS 
would file an answer. Rather, NMFS will determine under 50 CFR 221.24 
whether to file an answer; if it decides to do so, the answer would be 
included in the referral to the appropriate ALJ's office under 50 CFR 
221.25.
    For all three Departments, the answer must state whether the 
Departmental component is willing to stipulate to the facts as alleged 
by the requester, believes that any issue raised is not factual or not 
material, or agrees that the issue is disputed, factual, and material. 
The Departmental component must also indicate whether the hearing 
request will be consolidated under section 7 CFR 1.623, 43 CFR 45.23, 
or 50 CFR 221.23 with any other hearing requests, and must provide a 
list of the witnesses and exhibits the Departmental component intends 
to use at the hearing.
    7 CFR 1.625 What will the Forest Service do with any hearing 
requests?
    43 CFR 45.25 What will DOI do with any hearing requests?
    50 CFR 221.25 What will NMFS do with any hearing requests?
    This section in the Agriculture and Interior regulations states 
that, within 5 days after receipt of the answer, the designated 
Departmental office will

[[Page 69811]]

refer the case to the appropriate Department's ALJ office for a hearing 
and will notify the parties and FERC of the referral. The Commerce 
regulation combines the 45-day answer period and the 5-day referral 
period from the Agriculture and Interior regulations, and states that 
NMFS will refer the case for a hearing within 50 days after the 
deadline for filing any hearing requests and will notify the parties 
and FERC of the referral.
    7 CFR 1.626 What regulations apply to a case referred for a 
hearing?
    43 CFR 45.26 What regulations apply to a case referred for a 
hearing?
    50 CFR 221.26 What regulations apply to a case referred for a 
hearing?
    This section explains that the hearing will be conducted under the 
regulations of whichever Department is providing the ALJ to preside 
over the hearing. For example, a hearing that was requested under 7 CFR 
1.621 or 50 CFR 221.21 may be conducted under 43 CFR 45.30 et seq., if 
multiple hearing requests are consolidated and assigned to an Interior 
ALJ.

General Provisions Related to Hearings

    7 CFR 1.630 What will the Office of Administrative Law Judges do 
with a case referral?
    43 CFR 45.30 What will the Hearings Division do with a case 
referral?
    50 CFR 221.30 What will DOC's designated ALJ office do with a case 
referral?
    This section provides that, within 5 days after issuance of the 
referral notice, the appropriate ALJ's office will docket the case, 
assign an ALJ, and issue a docketing notice. The ALJ will 
simultaneously issue a notice setting the time, place, and method for 
the initial prehearing conference under section 7 CFR 1.640, 43 CFR 
45.40, and 50 CFR 221.40.
    7 CFR 1.631 What are the powers of the ALJ?
    43 CFR 45.31 What are the powers of the ALJ?
    50 CFR 221.31 What are the powers of the ALJ?
    This section states that the ALJ will have all powers necessary to 
conduct a fair, orderly, expeditious, and impartial hearing process, 
including the power to rule on motions, authorize discovery, regulate 
the course of hearings, and issue a decision on the disputed issues of 
material fact.
    7 CFR 1.632 What happens if the ALJ becomes unavailable?
    43 CFR 45.32 What happens if the ALJ becomes unavailable?
    50 CFR 221.32 What happens if the ALJ becomes unavailable?
    This section contains standard provisions for appointment of a 
successor ALJ, if the ALJ originally assigned becomes unavailable or 
unable to perform his or her duties. Given the short time period 
covered by the hearing process, it is expected that these provisions 
will rarely be used.
    7 CFR 1.633 Under what circumstances may the ALJ be disqualified?
    43 CFR 45.33 Under what circumstances may the ALJ be disqualified?
    50 CFR 221.33 Under what circumstances may the ALJ be disqualified?
    This section contains standard provisions for disqualification of 
the ALJ for personal bias or other cause.
    7 CFR 1.634 What is the law governing ex parte communications?
    43 CFR 45.34 What is the law governing ex parte communications?
    50 CFR 221.34 What is the law governing ex parte communications?
    This section contains standard provisions prohibiting most ex parte 
communications with the ALJ, consistent with the Administrative 
Procedure Act. Ex parte inquiries concerning case status or procedural 
requirements are generally permitted.
    7 CFR 1.635 What are the requirements for motions?
    43 CFR 45.35 What are the requirements for motions?
    50 CFR 221.35 What are the requirements for motions?
    Under this section, any party may apply for an order or ruling by 
presenting a motion to the ALJ in writing or at the hearing. Other 
parties may respond within 10 days, unless another regulation or the 
ALJ imposes a different response deadline. The expedited nature of the 
hearings under these rules will not allow for an extensive motions 
practice, as may occur in other administrative and judicial litigation. 
In particular, the rules do not provide for motions for summary 
decision (comparable to motions for summary judgment under FRCP 56), 
since the ALJ will have already determined in the initial prehearing 
conference that disputed issues of material fact require a hearing.

Prehearing Conferences and Discovery

    7 CFR 1.640 What are the requirements for prehearing conferences?
    43 CFR 45.40 What are the requirements for prehearing conferences?
    50 CFR 221.40 What are the requirements for prehearing conferences?
    Paragraph (a) of this section provides for an initial prehearing 
conference to be conducted about 20 days after issuance of the referral 
notice under section 7 CFR 1.625, 43 CFR 45.25, or 50 CFR 221.25 
(approximately 15 days after issuance of the docketing notice under 
section 7 CFR 1.630, 43 CFR 45.30, or 50 CFR 221.30). This conference 
will be critical to the overall hearing process.
    Theoretically, an initial prehearing conference could be held 
within a few days after the assignment of an ALJ, but in fact the 
parties will need the additional time to develop and file their 
discovery requests and objections and otherwise prepare for the 
conference. Under section 7 CFR 1.641(d), 43 CFR 45.41(d), or 50 CFR 
221.41(d), the parties must file their discovery motions within 7 days 
after issuance of the referral notice under section 7 CFR 1.625, 43 CFR 
45.25, or 50 CFR 221.25, or approximately 12 days after the Department 
files its answer. While the parties can start developing their 
discovery requests sooner, they will not know until the Department 
files its answer under section 7 CFR 1.624, 43 CFR 45.24, or 50 CFR 
221.24 what issues remain in dispute and what witnesses and exhibits 
the Department intends to present at the hearing. (The parties also 
cannot file discovery motions with the ALJ before any ALJ has been 
assigned to the case under section 7 CFR 1.630, 43 CFR 45.30, or 50 CFR 
221.30, which occurs just 2 days before the discovery motions are due.) 
Under section 7 CFR 1.641(e), 43 CFR 45.41(e), or 50 CFR 221.41(e), the 
parties must file any objections to another party's discovery motion 
within 7 days after service of a discovery motion.
    Prior to the initial prehearing conference, the parties' 
representatives are required to make a good faith effort to meet (most 
likely by telephone) and attempt to reach agreement on discovery and 
the schedule of remaining steps in the hearing process. Department 
counsel are encouraged to take the lead in scheduling the meeting of 
the parties, if other representatives do not do so. Agreements reached 
at the meeting of the parties will serve to expedite the initial 
prehearing conference and may allow the parties to initiate discovery 
before the conference.
    The initial prehearing conference may be held in person, by 
conference call, or by other appropriate means. It will be used to 
identify, narrow and clarify the disputed issues of material fact; to 
rule on the parties' motions for discovery (and objections thereto) and 
to set a deadline for the completion of discovery; to discuss the 
evidence on which each party intends to rely at the hearing; to set the 
deadline for

[[Page 69812]]

submission of written testimony under section 7 CFR 1.652, 43 CFR 
45.52, or 50 CFR 221.52; and to set the date, time, and place of the 
hearing. The conference may also be used to discuss limiting and 
grouping witnesses to avoid duplication; to discuss stipulations of 
fact and of the content and authenticity of documents; to consider 
requests that the ALJ take official notice of public records or other 
matters; to discuss the submission of documents in electronic form; and 
to consider any other matters that may aid in the disposition of the 
case.
    Under paragraph (b) of this section, the ALJ may schedule other 
prehearing conferences as needed. Under paragraph (g), within 2 days of 
the conclusion of any conference, the ALJ will issue an order setting 
forth any agreements reached by the parties and any rulings made by the 
ALJ.
    7 CFR 1.641 How may parties obtain discovery of information needed 
for the case?
    43 CFR 45.41 How may parties obtain discovery of information needed 
for the case?
    50 CFR 221.41 How may parties obtain discovery of information 
needed for the case?
    This section provides that parties may obtain discovery by 
agreement of the parties or by filing a motion within 7 days after 
issuance of the referral notice under section 7 CFR 1.625, 43 CFR 
45.25, or 50 CFR 221.25. Any proposed discovery request must be 
attached to the motion. Other parties may file objections within 7 days 
after service of a discovery motion. The ALJ will rule on the motions 
and objections during or promptly after the initial prehearing 
conference.
    Under the Federal Rules of Civil Procedure (FRCP), the parties may 
initiate discovery on their own, without needing permission from the 
judge or agreement from other parties, and discovery often takes months 
to complete. Local court rules typically set limits on discovery; but 
generally ample time is available for the parties to propound 
discovery, seek protective orders, submit responses and objections, 
file motions to compel, etc. The expedited nature of the trial-type 
hearing under these regulations cannot accommodate such a protracted 
discovery process. As a result, the initial prehearing conference will 
be used as necessary to regulate the course of discovery and deal with 
disputes ``up front'' to the extent possible.
    Paragraph (a) of this section lists the following methods of 
discovery, as limited by this section, as available to the parties: 
interrogatories, depositions, and requests for documents or tangible 
things or for entry on land. The other main discovery tool under the 
FRCP, requests for admission, has been omitted as unnecessary in the 
context of these hearings. The parties will have just completed their 
exchange of hearing requests, responses, and answers, specifying what 
facts they agree to or dispute; and the ALJ will use the initial 
prehearing conference to further identify, narrow, and clarify the 
disputed issues and encourage stipulations. Under these circumstances, 
little if anything would be gained by the use of requests for 
admission.
    The ALJ will authorize discovery requested by a party only if the 
ALJ determines that the criteria in paragraph (b) of this section have 
been met. These criteria include that the discovery will not 
unreasonably delay the hearing process; that the scope of the discovery 
is not unduly burdensome; that the discovery method to be used is the 
least burdensome method available; and that the information sought is 
not already in the record of the license proceeding or otherwise 
obtainable by the party.
    These criteria are needed to keep the discovery process within 
reasonable bounds, in light of the tight time constraints applicable to 
the hearing. The criteria reflect the facts that the FERC license 
proceeding has been underway for over 3 years by this point; the 
parties have been dealing with each other extensively throughout that 
period; the great bulk of the relevant information has already been 
filed in the record of that proceeding; and the parties will have 
identified any additional information they may have in their hearing 
requests, responses, and answers. Consequently, there should be very 
little new information that the parties would need to uncover through 
an unfettered discovery process, even if there was time for it.
    Paragraphs (f) and (g) of this section contain standard limitations 
on a party's ability to discover materials prepared by another party 
for the hearing or facts known or opinions held by another party's 
expert. Paragraph (h) limits depositions to witnesses who will be 
unavailable to testify at the hearing. This limitation will further 
reduce the time needed for discovery and the burden on the parties, who 
could otherwise face the prospect of multiple depositions at multiple 
locations around the country during a very limited time period, while 
simultaneously responding to interrogatories, requests for documents, 
etc. There is also less need to depose witnesses who will be presented 
at the hearing, since under section 7 CFR 1.652, 43 CFR 45.52, or 50 
CFR 221.52, the direct testimony of such witnesses must be submitted in 
writing, generally 10 days before the hearing.
    Paragraph (h)(3) provides that a party may depose a senior 
Department employee only if the party shows that the employee's 
testimony is necessary to provide significant information that is not 
available from any other source or by less burdensome means and that 
the deposition would not significantly interfere with the employee's 
ability