50 CFR § 221.1-221.75 - Conditions and prescriptions in FERC hydropower licenses

§ 219.32 — (b), a LOA may be modified 221.32 What happens if the ALJ becomes un

§ 219.32(b), a LOA may be modified 221.32 What happens if the ALJ becomes un- without prior notice or opportunity for available? public comment. Notification would be 221.33 Under what circumstances may the published in the FEDERAL REGISTER ALJ be disqualified? 221.34 What is the law governing ex parte within 30 days of the action. communications? 221.35 What are the requirements for mo- § § 219.39–219.40 [Reserved] tions? PART 220 [RESERVED] PREHEARING CONFERENCES AND DISCOVERY 221.40 What are the requirements for pre- PART 221—CONDITIONS AND PRE- hearing conferences? 221.41 How may parties obtain discovery of SCRIPTIONS IN FERC HYDRO- information needed for the case? POWER LICENSES 221.42 When must a party supplement or amend information it has previously pro- Subpart A—General Provisions vided? 221.43 What are the requirements for writ- Sec. ten interrogatories? 221.1 What is the purpose of this part, and 221.44 What are the requirements for deposi- to what license proceedings does it tions? sfrattini on LAPJZKW1R2 with DISTILLER apply? 221.45 What are the requirements for re- 221.2 What terms are used in this part? quests for documents or tangible things 221.3 How are time periods computed? or entry on land? 310 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00320 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.1 221.46 What sanctions may the ALJ impose hydropower license issued under sub- for failure to comply with discovery? chapter I of the Federal Power Act 221.47 What are the requirements for sub- (FPA), 16 U.S.C. 791 et seq. The author- poenas and witness fees? ity to develop these conditions and pre- HEARING, BRIEFING, AND DECISION scriptions is granted by FPA sections 221.50 When and where will the hearing be 4(e) and 18, 16 U.S.C. 797(e) and 811, held? which authorize the Secretary of Com- 221.51 What are the parties’ rights during merce to condition hydropower li- the hearing? censes issued by the Federal Energy 221.52 What are the requirements for pre- Regulatory Commission (FERC) and to senting testimony? prescribe fishways. 221.53 How may a party use a deposition in (2) The hearing process under this the hearing? 221.54 What are the requirements for exhib- part does not apply to provisions that its, official notice, and stipulations? the Department of Commerce may sub- 221.55 What evidence is admissible at the mit to FERC under any authority hearing? other than FPA section 4(e) and 18, in- 221.56 What are the requirements for tran- cluding recommendations under FPA scription of the hearing? section 10(a) or (j), 16 U.S.C. 803(a), (j), 221.57 Who has the burden of persuasion, or terms and conditions under FPA and what standard of proof applies? 221.58 When will the hearing record close? section 30(c), 16 U.S.C. 823a(c). 221.59 What are the requirements for (3) The FPA also grants the Depart- posthearing briefs? ment of Agriculture and the Depart- 221.60 What are the requirements for the ment of the Interior the authority to ALJ’s decision? develop mandatory conditions, and the Department of the Interior the author- Subpart C—Alternatives Process ity to develop mandatory prescrip- 221.70 How must documents be filed and tions, for inclusion in a hydropower li- served under this subpart? cense. Where the Department of Com- 221.71 How do I propose an alternative? merce and either or both of these other 221.72 May I file a revised proposed alter- Departments develop conditions or pre- native? scriptions to be included in the same 221.73 When will NOAA file its modified con- dition or prescription? hydropower license and where the De- 221.74 How will NOAA analyze a proposed partments agree to consolidate the alternative and formulate its modified hearings under § 221.23: condition or prescription? (i) A hearing conducted under this 221.75 Has OMB approved the information part will also address disputed issues of collection provisions of this subpart? material fact with respect to any con- AUTHORITY: 16 U.S.C. 797(e), 811, 823d. dition or prescription developed by one SOURCE: 80 FR 17207, Mar. 31, 2015, unless of the other Departments; or otherwise noted. (ii) A hearing requested under this part will be conducted by one of the Subpart A—General Provisions other Departments, pursuant to 7 CFR 1.601 et seq. or 43 CFR 45.1 et seq., as ap-

§ 221.1 — What is the purpose of this plicable

§ 221.1 What is the purpose of this plicable. part, and to what license pro- (4) The regulations in subparts A and ceedings does it apply? B of this part will be construed and ap- (a) Hearing process. (1) The regula- plied to each hearing process to tions in subparts A and B of this part achieve a just and speedy determina- contain rules of practice and procedure tion, consistent with adequate consid- applicable to hearings on disputed eration of the issues involved and the issues of material fact with respect to provisions of § 221.60(a). mandatory conditions and prescrip- (b) Alternatives process. The regula- tions that the Department of Com- tions in subparts A and C of this part merce (acting through the National contain rules of procedure applicable Oceanic and Atmospheric Administra- to the submission and consideration of sfrattini on LAPJZKW1R2 with DISTILLER tion’s (NOAA’s) National Marine Fish- alternative conditions and prescrip- eries Service (NMFS) and other NOAA tions under FPA section 33, 16 U.S.C. entities) may develop for inclusion in a 823d. That section allows any party to 311 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00321 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.2 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.2 50 CFR Ch. II (10–1–22 Edition) the license proceeding to propose an al- Ex parte communication means an oral ternative to a condition deemed nec- or written communication to the ALJ essary by NOAA under section 4(e) or a that is made without providing all par- fishway prescribed by NMFS under sec- ties reasonable notice and an oppor- tion 18. tunity to participate. (c) Reserved authority. Where NOAA FERC means the Federal Energy Reg- has notified or notifies FERC that it is ulatory Commission. reserving its authority to develop one FPA means the Federal Power Act, 16 or more conditions or prescriptions at U.S.C. 791 et seq. a later time, the hearing and alter- Intervention means a process by natives processes under this part for which a person who did not request a such conditions or prescriptions will be hearing under § 221.21 can participate as available if and when NOAA exercises a party to the hearing under § 221.22. its reserved authority. License party means a party to the li- (d) Applicability. (1) This part applies cense proceeding, as that term is de- to any hydropower license proceeding fined at 18 CFR 385.102(c). for which the license had not been issued as of November 17, 2005, and for License proceeding means a proceeding which one or more preliminary condi- before FERC for issuance of a license tions or prescriptions have been or are for a hydroelectric facility under 18 filed with FERC before FERC issues CFR part 4 or 5. the license. Material fact means a fact that, if (2) This part also applies to any exer- proved, may affect a Department’s de- cise of NOAA’s reserved authority cision whether to affirm, modify, or under paragraph (c) of this section with withdraw any condition or prescrip- respect to a hydropower license issued tion. before or after November 17, 2005. Modified condition or prescription means any modified condition or pre-

§ 221.2 — What terms are used in this scription filed by a Department with

part? As used in this part: ALJ means an administrative law judge appointed under 5 U.S.C. 3105 and assigned to preside over the hearing process under subpart B of this part. Alternative means a condition or pre- scription that a license party other than NOAA or another Department de- velops as an alternative to a prelimi- nary condition or prescription from NOAA or another Department, under FPA sec. 33, 16 U.S.C. 823d. Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), for the adequate protection and utilization of a reservation. Day means a calendar day. Department means the Department of Agriculture, Department of Commerce, or Department of the Interior. Department of Commerce’s designated ALJ office means the ALJ office that is assigned to preside over the hearing process for NOAA. Discovery means a prehearing process sfrattini on LAPJZKW1R2 with DISTILLER for obtaining facts or information to assist a party in preparing or pre- senting its case. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 National Marine Fisheries Service/NOAA, Commerce Office of Habitat Conservation means the NMFS Office of Habitat Conserva- tion. Address: Chief, Habitat tion Division, Office of Habitat Con- servation, National Marine Fisheries Service, 1315 East-West Highway, Sil- ver Spring, MD 20910. Telephone 301– 427–8601. Facsimile number 301–713–4305. Party means, with respect to NOAA’s hearing process under subpart B of this part: (1) A license party that has filed a timely request for a hearing under: (i) Section 221.21; or (ii) Either 7 CFR 1.621 or 43 CFR 45.21, with respect to a hearing process con- solidated under § 221.23; (2) A license party that has filed a timely notice of intervention and re- sponse under: (i) Section 221.22; or (ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing process con- solidated under § 221.23; (3) NOAA; and (4) Any other Department that has filed a preliminary condition or pre- scription, with respect to a hearing process consolidated under § 221.23. Person means an individual; nership, corporation, association, other legal entity; an unincorporate organization; and any Federal, tribal, county, district, territorial, local government or agency. Preliminary condition or means any preliminary condition or prescription filed by a Department with FERC for potential inclusion hydropower license. Prescription means a fishway pre- scribed under FPA sec. 18, 16 U.S.C. 811, to provide for the safe, timely, and ef- fective passage of fish. Representative means a person who: (1) Is authorized by a party to rep- resent the party in a hearing under this subpart; and (2) Has filed an appearance under § 221.2 What terms are used in this scription filed by a Department with FERC for inclusion in a hydropower li- cense. NEPA document means an environ- mental document as defined at 40 CFR 1508.10 to include an environmental as- sessment, environmental impact state- ment (EIS), finding of no significant impact, and notice of intent to prepare an EIS. Such documents are issued to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and the CEQ Regulations Implementing the Procedural Requirements of NEPA (40 CFR parts 21500–1508). NMFS means the National Marine Fisheries Service, a constituent agency of the Department of Commerce, act- ing by and through the Assistant Ad- ministrator for Fisheries or one of NMFS’s six Regional Administrators, as appropriate. NOAA means the National Oceanic and Atmospheric Administration, a constituent agency of the Department of Commerce, acting by and through its Administrator, the Undersecretary of Commerce for Oceans and Atmos- phere or one of its line offices. 312 PO 00000 Frm 00322 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 § 221.4 You refers to a party other than a De- partment. Protec- § 221.3 How are time periods com- puted? (a) General. Time periods are com- puted as follows: (1) The day of the act or event from which the period begins to run is not included. (2) The last day of the period is in- cluded. (i) If that day is a Saturday, Sunday, or Federal holiday, the period is ex- tended to the next business day. (ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due. (3) If the period is less than 7 days, any Saturday, Sunday, or Federal holi- day that falls within the period is not included. (b) Extensions of time. (1) No extension of time can be granted to file a request for a hearing under § 221.21, a notice of intervention and response under § 221.22, an answer under § 221.25, or any document under subpart C of this part. (2) An extension of time to file any other document under subpart B of this a part- part may be granted only upon a show- or ing of good cause. d (i) To request an extension of time, a State, party must file a motion under § 221.35 or stating how much additional time is needed and the reasons for the request. prescription (ii) The party must file the motion before the applicable time period ex- pires, unless the party demonstrates in a extraordinary circumstances that jus- tify a delay in filing. (iii) The ALJ may grant the exten- sion only if: (A) It would not unduly prejudice other parties; and (B) It would not delay the decision under § 221.60. process § 221.4 What deadlines apply to the trial-type hearing and alternatives

§ 221.10 — processes?

§ 221.10. processes? Reservation has the same meaning as (a) The following table summarizes the term ‘‘reservations’’ in FPA sec. the steps in the trial-type hearing 3(2), 16 U.S.C. 796(2). process under subpart B of this part Secretary means the Secretary of and indicates the deadlines generally Commerce or his or her designee. applicable to each step. If the deadlines sfrattini on LAPJZKW1R2 with DISTILLER Senior Department employee has the in this table are in any way incon- same meaning as the term ‘‘senior em- sistent with the deadlines as set by ployee’’ in 5 CFR 2637.211(a). other sections of this part or by the 313 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00323 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.4 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.4 50 CFR Ch. II (10–1–22 Edition) ALJ, the deadlines as set by those other sections or by the ALJ control. Process step Process day Must generally be completed See section (1) NOAA files preliminary condition(s) or 0 ......................................................................... 221.20. prescription(s) with FERC. (2) License party files request for hearing ...... 30 Within 30 days after NOAA files preliminary 221.21(a). condition(s) or prescription(s) with FERC. (3) Any other license party files notice of 50 Within 20 days after deadline for filing re- 221.22(a). intervention and response. quests for hearing. (4) NOAA may file answer .............................. 80 Within 50 days after deadline for filing re- 221.25(a). quests for hearing. (5) Office of Habitat Conservation refers case 85 Within 55 days after deadline for filing re- 221.26(a). to ALJ office for hearing and issues referral quests for hearing. notice to parties. (6) Parties may meet and agree to discovery 86–91 Before deadline for filing motions seeking 221.41(a). (optional step). discovery. (7) ALJ office sends docketing notice, and 90 Within 5 days after effective date of referral 221.30. ALJ issues notice setting date for initial notice. prehearing conference. (8) Party files motion seeking discovery from 92 Within 7 days after effective date of referral 221.41(d). another party. notice. (9) Other party files objections to discovery 99 Within 7 days after service of discovery mo- 221.41(e). motion or specific portions of discovery re- tion. quests. (10) Parties meet to discuss discovery and 100–104 Before date set for initial prehearing con- 221.40(d). hearing schedule. ference. (11) ALJ conducts initial prehearing con- 105 On or about 20th day after effective date of 221.40(a). ference. referral notice. (12) ALJ issues order following initial pre- 107 Within 2 days after initial prehearing con- 221.40(g). hearing conference. ference. (13) Party responds to interrogatories from 120–22 Within 15 days after ALJ’s order authorizing 221.43(c). another party as authorized by ALJ. discovery during or following initial pre- hearing conference. (14) Party responds to requests for docu- 120–22 Within 15 days after ALJ’s order authorizing 221.45(c). ments, etc., from another party as author- discovery during or following initial pre- ized by ALJ. hearing conference. (15) Parties complete all discovery, including 130 Within 25 days after initial prehearing con- 221.41(i). depositions, as authorized by ALJ. ference. (16) Parties file updated lists of witnesses 140 Within 10 days after deadline for completion 221.42(b). and exhibits. of discovery. (17) Parties file written direct testimony ......... 140 Within 10 days after deadline for completion 221.52(a). of discovery. (18) Parties complete prehearing preparation 155 Within 25 days after deadline for completion 221.50(a). and ALJ commences hearing. of discovery. (19) ALJ closes hearing record ...................... 160 When ALJ closes hearing .............................. 221.58. (20) Parties file post-hearing briefs ................ 175 Within 15 days after hearing closes ............... 221.59(a). (21) ALJ issues decision ................................. 190 Within 30 days after hearing closes ............... 221.60(a). (b) The following table summarizes table are in any way inconsistent with the steps in the alternatives process the deadlines as set by other sections under subpart C of this part and indi- of this part, the deadlines as set by cates the deadlines generally applica- those other sections control. ble to each step. If the deadlines in this Process step Process day Must generally be completed See section (1) NOAA files preliminary condition(s) or 0 ......................................................................... 221.20. prescription(s) with FERC. (2) License party files alternative condition(s) 30 Within 30 days after NOAA files preliminary 221.71(a). or prescription(s). condition(s) or prescription(s) with FERC. (3) ALJ issues decision on any hearing re- 190 Within 30 days after hearing closes (see pre- 221.60(a). quest. vious table). (4) License party files revised alternative con- 210 Within 20 days after ALJ issues decision ...... 221.72(a). dition(s) or prescription(s) if authorized. (5) NOAA files modified condition(s) or pre- 300 Within 60 days after the deadline for filing 221.73(a). scription(s) with FERC. comments on FERC’s draft NEPA docu- sfrattini on LAPJZKW1R2 with DISTILLER ment. 314 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00324 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.11 Subpart B—Hearing Process DOCUMENT FILING AND SERVICE REPRESENTATIVES § 221.11 What are the form and content requirements for documents under

§ 221.10 — Who may represent a party, this subpart?

§ 221.10 Who may represent a party, this subpart? and what requirements apply to a (a) Form. Each document filed in a representative? case under this subpart must: (a) Individuals. A party who is an in- (1) Measure 81⁄2 by 11 inches, except dividual may either represent himself that a table, chart, diagram, or other or herself in the hearing process under attachment may be larger if folded to this subpart or authorize an attorney 81⁄2 by 11 inches and attached to the to represent him or her. document; (b) Organizations. A party that is an (2) Be printed on just one side of the organization or other entity may au- page (except that service copies may be thorize one of the following to rep- printed on both sides of the page); resent it: (1) An attorney; (3) Be clearly typewritten, printed, or (2) A partner, if the entity is a part- otherwise reproduced by a process that nership; yields legible and permanent copies; (3) An officer or agent, if the entity is (4) Use 11 point font size or larger; a corporation, association, or unincor- (5) Be double-spaced except for foot- porated organization; notes and long quotations, which may (4) A receiver, administrator, execu- be single-spaced; tor, or similar fiduciary, if the entity (6) Have margins of at least 1 inch; is a receivership, trust, or estate; or and (5) An elected or appointed official or (7) Be bound on the left side, if an employee, if the entity is a Federal, bound. State, tribal, county, district, terri- (b) Caption. Each document filed torial, or local government or compo- under this subpart must begin with a nent. caption that sets forth: (c) Appearance. An individual rep- (1) The name of the case under this resenting himself or herself and any subpart and the docket number, if one other representative must file a notice has been assigned; of appearance. The notice must: (2) The name and docket number of (1) Meet the form and content re- the license proceeding to which the quirements for documents under case under this subpart relates; and

§ 221.11 — ;

§ 221.11; (3) A descriptive title for the docu- (2) Include the name and address of ment, indicating the party for whom it the party on whose behalf the appear- is filed and the nature of the document. ance is made; (3) If the representative is an attor- (c) Signature. The original of each ney, include a statement that he or she document filed under this subpart must is a member in good standing of the bar be signed by the representative of the of the highest court of a state, the Dis- person for whom the document is filed. trict of Columbia, or any territory or The signature constitutes a certifi- commonwealth of the United States cation by the representative that he or (identifying which one); and she has read the document; that to the (4) If the representative is not an at- best of his or her knowledge, informa- torney, include a statement explaining tion, and belief, the statements made his or her authority to represent the in the document are true; and that the entity. document is not being filed for the pur- (d) Lead representative. If a party has pose of causing delay. more than one representative, the ALJ (d) Contact information. Below the may require the party to designate a representative’s signature, the docu- lead representative for service of docu- ment must provide the representative’s ments under § 221.13. name, mailing address, street address sfrattini on LAPJZKW1R2 with DISTILLER (e) Disqualification. The ALJ may dis- (if different), telephone number, fac- qualify any representative for mis- simile number (if any), and electronic conduct or other good cause. mail address (if any). 315 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00325 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.12 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.12 50 CFR Ch. II (10–1–22 Edition)

§ 221.12 — Where and how must docu- supporting material accompanying a

§ 221.12 Where and how must docu- supporting material accompanying a ments be filed? request for hearing, a notice of inter- (a) Place of filing. Any documents re- vention and response, or an answer, the lating to a case under this subpart party may submit in lieu of an original must be filed with the appropriate of- and two hard copies: fice, as follows: (i) An original; and (1) Before NOAA refers a case for (ii) One copy on a compact disc or docketing under § 221.26, any docu- other suitable media. ments must be filed with the Office of (c) Date of filing. A document under Habitat Conservation. The Office of this subpart is considered filed on the Habitat Conservation’s address, tele- date it is received. However, any docu- phone number, and facsimile number ment received after 5 p.m. at the place are set forth in § 221.2. where the filing is due is considered (2) NOAA will notify the parties of filed on the next regular business day. the date on which it refers a case for (d) Nonconforming documents. If any docketing under § 221.26. After that document submitted for filing under date, any documents must be filed this subpart does not comply with the with: requirements of this subpart or any ap- (i) The Department of Commerce’s plicable order, it may be rejected. designated ALJ office, if the Depart- ment of Commerce will be conducting § 221.13 What are the requirements for the hearing. The name, address, tele- service of documents? phone number, and facsimile number of the designated ALJ office will be pro- (a) Filed documents. Any document re- vided in the referral notice from lated to a case under this subpart must NOAA; or be served at the same time the docu- (ii) The hearings component of or ment is delivered or sent for filing. used by another Department, if that Copies must be served as follows: Department will be conducting the (1) A complete copy of any request hearing. The name, address, telephone for a hearing under § 221.21 must be de- number, and facsimile number of the livered or sent to FERC and each li- appropriate hearings component will cense party, using one of the methods be provided in the referral notice from of service in paragraph (c) of this sec- NOAA. tion or under 18 CFR 385.2010(f)(3) for li- (b) Method of filing. (1) A document cense parties that have agreed to re- must be filed with the appropriate of- ceive electronic service. fice under paragraph (a) of this section (2) A complete copy of any notice of using one of the following methods: intervention and response under § 221.22 (i) By hand delivery of the original must be: document and two copies; (i) Delivered or sent to FERC, the li- (ii) By sending the original document cense applicant, any person who has and two copies by express mail or cou- filed a request for hearing under rier service; or § 221.21, and NOAA, using one of the (iii) By sending the document by fac- methods of service in paragraph (c) of simile if: this section; and (A) The document is 20 pages or less, including all attachments; (ii) Delivered or sent to any other li- (B) The sending facsimile machine cense party using one of the methods of confirms that the transmission was service in paragraph (c) of this section successful; and or under 18 CFR 385.2010(f)(3) for license (C) The original of the document and parties that have agreed to receive two copies are sent by regular mail on electronic service, or by regular mail. the same day. (3) A complete copy of any answer or (2) Parties are encouraged, and may notice under § 221.25 and any other doc- be required by the ALJ, to supplement ument filed by any party to the hear- any filing by providing the appropriate ing process must be delivered or sent sfrattini on LAPJZKW1R2 with DISTILLER office with an electronic copy of the on every other party to the hearing document on compact disc or other process, using one of the methods of suitable media. With respect to any service in paragraph (c) of this section. 316 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00326 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.21 (b) Documents issued by the ALJ. A INITIATION OF HEARING PROCESS complete copy of any notice, order, de- cision, or other document issued by the § 221.20 What supporting information must NOAA provide with its pre- ALJ under this subpart must be served liminary conditions or prescrip- on each party, using one of the meth- tions? ods of service in paragraph (c) of this (a) Supporting information. (1) When section. NOAA files a preliminary condition or (c) Method of service. Unless otherwise prescription with FERC, it must in- agreed to by the parties and ordered by clude a rationale for the condition or the ALJ, service must be accomplished prescription and an index to NOAA’s by one of the following methods: administrative record that identifies (1) By hand delivery of the document; all documents relied upon. (2) By sending the document by ex- (2) If any of the documents relied press mail or courier service for deliv- upon are not already in the license pro- ery on the next business day; ceeding record, NOAA must: (3) By sending the document by fac- (i) File them with FERC at the time simile if: it files the preliminary condition or (i) The document is 20 pages or less, prescription; including all attachments; (ii) Provide copies to the license ap- (ii) The sending facsimile machine plicant; and confirms that the transmission was (b) Service. NOAA will serve a copy of successful; and its preliminary condition or prescrip- tion on each license party. (iii) The document is sent by regular mail on the same day; or § 221.21 How do I request a hearing? (4) By sending the document, includ- (a) General. To request a hearing on ing all attachments, by electronic disputed issues of material fact with means if the party to be served has respect to any preliminary condition or consented to that means of service in prescription filed by NOAA, you must: writing. However, if the serving party (1) Be a license party; and learns that the document did not reach (2) File with the Office of Habitat the party to be served, the serving Conservation, at the address provided party must re-serve the document by in § 221.2, a written request for a hear- another method set forth in paragraph ing: (c) of this section (including another (i) For a case under § 221.1(d)(1), with- electronic means, if the party to be in 30 days after NOAA files a prelimi- served has consented to that means in nary condition or prescription with writing). FERC; or (d) Certificate of service. A certificate (ii) For a case under § 221.1(d)(2), of service must be attached to each within 60 days after NOAA files a pre- document filed under this subpart. The liminary condition or prescription with certificate must be signed by the par- FERC. ty’s representative and include the fol- (b) Content. Your hearing request lowing information: must contain: (1) The name, address, and other con- (1) A numbered list of the factual tact information of each party’s rep- issues that you allege are in dispute, resentative on whom the document was each stated in a single, concise sen- tence; served; (2) The following information with (2) The means of service, including respect to each issue: information indicating compliance (i) The specific factual statements with paragraph (c)(3) or (c)(4) of this made or relied upon by NOAA under section, if applicable; and § 221.20(a) that you dispute; (3) The date of service. (ii) The basis for your opinion that those factual statements are unfounded sfrattini on LAPJZKW1R2 with DISTILLER or erroneous; and (iii) The basis for your opinion that any factual dispute is material. 317 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00327 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.22 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.22 50 CFR Ch. II (10–1–22 Edition) (3) With respect to any scientific by the requester under § 221.21(b), your studies, literature, and other docu- response may refer to NOAA’s expla- mented information supporting your nation or the requester’s hearing re- opinions under paragraphs (b)(2)(ii) and quest for support. (b)(2)(iii) of this section, specific cita- (2) If you wish to rely on additional tions to the information relied upon. If information or analysis, your response any such document is not already in must provide the same level of detail the license proceeding record, you with respect to the additional informa- must provide a copy with the request; tion or analysis as required under and § 221.21(b). (4) A statement indicating whether (3) Your notice of intervention and or not you consent to service by elec- response must also indicate whether or tronic means under § 221.13(c)(4) and, if not you consent to service by elec- so, by what means. tronic means under § 221.13(c)(4) and, if (c) Witnesses and exhibits. Your hear- so, by what means. ing request must also list the witnesses (c) Witnesses and exhibits. Your re- and exhibits that you intend to present sponse and notice must also list the at the hearing, other than solely for witnesses and exhibits that you intend impeachment purposes. to present at the hearing, other than (1) For each witness listed, you must solely for impeachment purposes. provide: (1) For each witness listed, you must (i) His or her name, address, tele- provide: phone number, and qualifications; and (i) His or her name, address, tele- (ii) A brief narrative summary of his phone number, and qualifications; and or her expected testimony. (ii) A brief narrative summary of his (2) For each exhibit listed, you must or her expected testimony; and specify whether it is in the license pro- (2) For each exhibit listed, you must ceeding record. specify whether it is in the license pro- (d) Page limits. (1) For each disputed ceeding record. factual issue, the information provided under paragraph (b)(2) of this section (d) Page limits. (1) For each disputed may not exceed two pages. factual issue, the information provided (2) For each witness, the information under paragraph (b) of this section (ex- provided under paragraph (c)(1) of this cluding citations to scientific studies, section may not exceed one page. literature, and other documented infor- mation supporting your opinions) may

§ 221.22 — How do I file a notice of inter- not exceed two pages

§ 221.22 How do I file a notice of inter- not exceed two pages. vention and response? (2) For each witness, the information (a) General. (1) To intervene as a provided under paragraph (c)(1) of this party to the hearing process, you must: section may not exceed one page. (i) Be a license party; and

§ 221.23 — Will hearing requests be con

§ 221.23 Will hearing requests be con- (ii) File with the Office of Habitat solidated? Conservation, at the address provided in § 221.2, a notice of intervention and a (a) Initial Department coordination. If written response to any request for a NOAA has received a copy of a hearing hearing within 20 days after the dead- request, it must contact the other De- line in § 221.21(a)(2). partments and determine: (2) A notice of intervention and re- (1) Whether any of the other Depart- sponse must be limited to one or more ments has also filed a preliminary con- of the issues of material fact raised in dition or prescription relating to the li- the hearing request and may not raise cense with FERC; and additional issues. (2) If so, whether the other Depart- (b) Content. In your notice of inter- ment has also received a hearing re- vention and response you must explain quest with respect to the preliminary your position with respect to the issues condition or prescription. of material fact raised in the hearing (b) Decision on consolidation. Where sfrattini on LAPJZKW1R2 with DISTILLER request under § 221.21(b). more than one Department has re- (1) If you agree with the information ceived a hearing request, the Depart- provided by NOAA under § 221.20(a) or ments involved must decide jointly: 318 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00328 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.25 (1) Whether the cases should be con- the expiration of any stay period under solidated for hearing under paragraphs § 221.24, whichever is later, NOAA may (c)(3)(ii) through (c)(3)(iv) of this sec- file with the Office of Habitat Con- tion; and servation an answer to any hearing re- (2) If so, which Department will con- quest under § 221.21. duct the hearing on their behalf. (b) Content. If NOAA files an answer: (c) Criteria. Cases will or may be con- (1) For each of the numbered factual solidated as follows: issues listed under § 221.21(b)(1), the an- (1) All hearing requests with respect swer must explain NOAA’s position to any conditions from the same De- with respect to the issues of material partment will be consolidated for hear- fact raised by the requester, including ing. one or more of the following state- (2) All hearing requests with respect ments as appropriate: to any prescriptions from the same De- (i) That NOAA is willing to stipulate partment will be consolidated for hear- to the facts as alleged by the requester; ing. (ii) That NOAA believes the issue (3) All or any portion of the following may be consolidated for hearing, if the listed by the requester is not a factual Departments involved determine that issue, explaining the basis for such be- there are common issues of material lief; fact or that consolidation is otherwise (iii) That NOAA believes the issue appropriate: listed by the requester is not material, (i) Two or more hearing requests explaining the basis for such belief; or with respect to any condition and any (iv) That NOAA agrees that the issue prescription from the same Depart- is factual, material, and in dispute. ment; (2) The answer must also indicate (ii) Two or more hearing requests whether the hearing request will be with respect to conditions from dif- consolidated with one or more other ferent Departments; hearing requests under § 221.23 and, if (iii) Two or more hearing requests so: with respect to prescriptions from dif- (i) Identify any other hearing request ferent Departments; or that will be consolidated with this (iv) Two or more hearing requests hearing request; and with respect to any condition from one (ii) State which Department will con- Department and any prescription from duct the hearing and provide contact another Department. information for the appropriate De- partment hearings component.

§ 221.24 — Can a hearing process be

§ 221.24 Can a hearing process be stayed to allow for settlement dis- (3) If NOAA plans to rely on any sci- cussions? entific studies, literature, and other documented information that are not (a) Prior to referral to the ALJ, the already in the license proceeding hearing requester and NOAA may by record, it must provide a copy with its agreement stay the hearing process answer. under this subpart for a period not to (4) The answer must also indicate exceed 120 days to allow for settlement whether or not NOAA consents to serv- discussions, if the stay period and any subsequent hearing process (if re- ice by electronic means under quired) can be accommodated within § 221.13(c)(4) and, if so, by what means. the time frame established for the li- (c) Witnesses and exhibits. NOAA’s an- cense proceeding. swer must also list the witnesses and (b) Any stay of the hearing process exhibits that it intends to present at will not affect the deadline for filing a the hearing, other than solely for im- notice of intervention and response, if peachment purposes. any, pursuant to § 221.22(a)(1)(ii). (1) For each witness listed, NOAA must provide:

§ 221.25 — How will NOAA respond to (i) His or her name, address, tele

§ 221.25 How will NOAA respond to (i) His or her name, address, tele- any hearing requests? sfrattini on LAPJZKW1R2 with DISTILLER phone number, and qualifications; and (a) General. Within 50 days after the (ii) A brief narrative summary of his deadline in § 221.21(a)(2) or 30 days after or her expected testimony. 319 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00329 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.26 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.26 50 CFR Ch. II (10–1–22 Edition) (2) For each exhibit listed, NOAA (4) The original and one copy of any must specify whether it is in the li- answer under § 221.25; and cense proceeding record. (5) The original and one copy of a re- (d) Page limits. (1) For each disputed ferral notice under paragraph (c) of factual issue, the information provided this section. under paragraph (b)(1) of this section (c) Notice. At the time the Office of may not exceed two pages. Habitat Conservation refers the case (2) For each witness, the information for a hearing, it must provide a referral provided under paragraph (c)(1) of this notice that contains the following in- section may not exceed one page. formation: (e) Notice in lieu of answer. If NOAA (1) The name, address, telephone elects not to file an answer to a hear- number, and facsimile number of the ing request: Department hearings component that (1) NOAA is deemed to agree that the will conduct the hearing; issues listed by the requester are fac- tual, material, and in dispute; (2) The name, address, and other con- (2) NOAA may file a list of witnesses tact information for the representative and exhibits with respect to the re- of each party to the hearing process; quest only as provided in § 221.42(b); and (3) An identification of any other (3) NOAA must file a notice con- hearing request that will be consoli- taining the information required by dated with this hearing request; and paragraph (b)(2) of this section, if the (4) The effective date of the case re- hearing request will be consolidated ferral to the appropriate Department with one or more other hearing re- hearings component. quests under § 221.23, and the statement (d) Delivery and service. (1) The Office required by paragraph (b)(4) of this sec- of Habitat Conservation must refer the tion. case to the appropriate Department hearings component by one of the

§ 221.26 — What will the Office of Habitat

§ 221.26 What will the Office of Habitat methods identified in § 221.12(b)(1)(i) Conservation do with any hearing requests? and (b)(1)(ii). (2) The Office of Habitat Conserva- (a) Case referral. Within 55 days after tion must serve a copy of the referral the deadline in § 221.21(a)(2) or 35 days notice on FERC and each party to the after the expiration of any stay period hearing by one of the methods identi- under § 221.24, whichever is later, the fied in § 221.13(c)(1) and (c)(2). Office of Habitat Conservation will refer the case for a hearing as follows: § 221.27 What regulations apply to a (1) If the hearing is to be conducted case referred for a hearing? by NOAA, the Office of Habitat Con- servation will refer the case to the De- (a) If the Office of Habitat Conserva- partment of Commerce’s designated tion refers the case to the Department ALJ office. of Commerce’s designated ALJ office, (2) If the hearing is to be conducted the regulations in this subpart will by another Department, the Office of continue to apply to the hearing proc- Habitat Conservation will refer the ess. case to the hearings component used (b) If the Office of Habitat Conserva- by that Department. tion refers the case to the United (b) Content. The case referral will States Department of Agriculture’s Of- consist of the following: fice of Administrative Law Judges, the (1) Two copies of any preliminary regulations at 7 CFR 1.601 et seq. will condition or prescription under § 221.20; apply from that point on. (2) The original and one copy of any (c) If the Office of Habitat Conserva- hearing request under § 221.21; tion refers the case to the Department (3) The original and one copy of any of the Interior’s Office of Hearings and notice of intervention and response Appeals, the regulations at 43 CFR 45.1 under § 221.22; et seq. will apply from that point on. sfrattini on LAPJZKW1R2 with DISTILLER 320 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00330 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.34 GENERAL PROVISIONS RELATED TO (l) Take any other action authorized HEARINGS by law.

§ 221.30 — What will the Department of § 221.32 What happens if the ALJ be

§ 221.30 What will the Department of § 221.32 What happens if the ALJ be- Commerce’s designated ALJ office comes unavailable? do with a case referral? (a) If the ALJ becomes unavailable or Within 5 days after the effective date otherwise unable to perform the duties stated in the referral notice under described in § 221.31, the Department of

§ 221.26 — (c)(4), 43 CFR 45.26(c)(4), or 7 Commerce’s designated ALJ office will

§ 221.26(c)(4), 43 CFR 45.26(c)(4), or 7 Commerce’s designated ALJ office will CFR 1.626(c)(4): designate a successor. (a) The Department of Commerce’s (b) If a hearing has commenced and designated ALJ office must: the ALJ cannot proceed with it, a suc- (1) Docket the case; cessor ALJ may do so. At the request (2) Assign an ALJ to preside over the of a party, the successor ALJ may re- hearing process and issue a decision; call any witness whose testimony is and material and disputed, and who is (3) Issue a docketing notice that in- available to testify again without forms the parties of the docket number undue burden. The successor ALJ may, and the ALJ assigned to the case; and within his or her discretion, recall any (b) The ALJ must issue a notice set- other witness. ting the time, place, and method for conducting an initial prehearing con- § 221.33 Under what circumstances ference under § 221.40. This notice may may the ALJ be disqualified? be combined with the docketing notice (a) The ALJ may withdraw from a under paragraph (a)(3) of this section. case at any time the ALJ deems him- self or herself disqualified.

§ 221.31 — What are the powers of the (b) At any time before issuance of the

§ 221.31 What are the powers of the (b) At any time before issuance of the ALJ? ALJ’s decision, any party may move The ALJ will have all powers nec- that the ALJ disqualify himself or her- essary to conduct a fair, orderly, expe- self for personal bias or other valid ditious, and impartial hearing process cause. relating to NOAA’s or any other De- (1) The party must file the motion partment’s condition or prescription promptly after discovering facts or that has been referred to the ALJ for other reasons allegedly constituting hearing, including the powers to: cause for disqualification. (a) Administer oaths and affirma- (2) The party must file with the mo- tions; tion an affidavit or declaration setting (b) Issue subpoenas under § 221.47; forth the facts or other reasons in de- (c) Shorten or enlarge time periods tail. set forth in these regulations, except (c) The ALJ must rule upon the mo- that the deadline in § 221.60(a)(2) can be tion, stating the grounds for the rul- extended only if the ALJ must be re- ing. placed under § 221.32 or 221.33; (1) If the ALJ concludes that the mo- (d) Rule on motions; tion is timely and meritorious, he or (e) Authorize discovery as provided she must disqualify himself or herself for in this subpart; and withdraw from the case. (f) Hold hearings and conferences; (2) If the ALJ does not disqualify (g) Regulate the course of hearings; himself or herself and withdraw from (h) Call and question witnesses; the case, the ALJ must continue with (i) Exclude any person from a hearing the hearing process and issue a deci- or conference for misconduct or other sion. good cause; (j) Summarily dispose of any hearing § 221.34 What is the law governing ex request or issue as to which the ALJ parte communications? determines there is no disputed issue of (a) Ex parte communications with material fact; the ALJ or his or her staff are prohib- sfrattini on LAPJZKW1R2 with DISTILLER (k) Issue a decision consistent with ited in accordance with 5 U.S.C. 554(d).

§ 221.60 — (b) regarding any disputed issue (b) This section does not prohibit ex

§ 221.60(b) regarding any disputed issue (b) This section does not prohibit ex of material fact; and parte inquiries concerning case status 321 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00331 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.35 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.35 50 CFR Ch. II (10–1–22 Edition) or procedural requirements, unless the PREHEARING CONFERENCES AND inquiry involves an area of controversy DISCOVERY in the hearing process.

§ 221.40 — What are the requirements for

§ 221.40 What are the requirements for

§ 221.35 — What are the requirements for prehearing conferences?

§ 221.35 What are the requirements for prehearing conferences? motions? (a) Initial prehearing conference. The (a) General. Any party may apply for ALJ will conduct an initial prehearing an order or ruling on any matter re- conference with the parties at the time lated to the hearing process by pre- specified in the notice under § 221.30, on senting a motion to the ALJ. A motion or about the 20th day after the effec- may be presented any time after the tive date stated in the referral notice Department of Commerce’s designated under § 221.26(c)(4), 7 CFR 1.626(c)(4), or 43 CFR 45.26(c)(4). ALJ office issues a docketing notice under § 221.30. (1) The initial prehearing conference will be used: (1) A motion made at a hearing may (i) To identify, narrow, and clarify be stated orally on the record, unless the disputed issues of material fact and the ALJ directs that it be reduced to exclude issues that do not qualify for writing. review as factual, material, and dis- (2) Any other motion must: puted; (i) Be in writing; (ii) To consider the parties’ motions (ii) Comply with the requirements of for discovery under § 221.41 and to set a this subpart with respect to form, con- deadline for the completion of dis- tent, filing, and service; and covery; (iii) Not exceed 15 pages, including (iii) To discuss the evidence on which all supporting arguments. each party intends to rely at the hear- (b) Content. (1) Each motion must ing; state clearly and concisely: (iv) To set deadlines for submission (i) Its purpose and the relief sought; of written testimony under § 221.52 and (ii) The facts constituting the exchange of exhibits to be offered as grounds for the relief sought; and evidence under § 221.54; and (iii) Any applicable statutory or reg- (v) To set the date, time, and place of ulatory authority. the hearing. (2) A proposed order must accompany (2) The initial prehearing conference the motion. may also be used: (c) Response. Except as otherwise re- (i) To discuss limiting and grouping quired by this part, any other party witnesses to avoid duplication; may file a response to a written motion (ii) To discuss stipulations of fact and of the content and authenticity of within 10 days after service of the mo- documents; tion. The response may not exceed 15 (iii) To consider requests that the pages, including all supporting argu- ALJ take official notice of public ments. When a party presents a motion records or other matters; at a hearing, any other party may (iv) To discuss the submission of present a response orally on the record. written testimony, briefs, or other doc- (d) Reply. Unless the ALJ orders oth- uments in electronic form; and erwise, no reply to a response may be (v) To consider any other matters filed. that may aid in the disposition of the (e) Effect of filing. Unless the ALJ or- case. ders otherwise, the filing of a motion (b) Other conferences. The ALJ may in does not stay the hearing process. his or her discretion direct the parties (f) Ruling. The ALJ will rule on the to attend one or more other prehearing motion as soon as practicable, either conferences, if consistent with the need orally on the record or in writing. He to complete the hearing process within or she may summarily deny any dila- 90 days. Any party may by motion re- sfrattini on LAPJZKW1R2 with DISTILLER tory, repetitive, or frivolous motion. quest a conference. (c) Notice. The ALJ must give the parties reasonable notice of the time 322 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00332 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.41 and place of any conference. A con- (b) Criteria. Discovery may occur only ference will ordinarily be held by tele- as agreed to by the parties or as au- phone, unless the ALJ orders other- thorized by the ALJ during a pre- wise. hearing conference or in a written (d) Preparation. (1) Each party’s rep- order under § 221.40(g). The ALJ may resentative must be fully prepared to authorize discovery only if the party discuss all issues pertinent to that requesting discovery demonstrates: party that are properly before the con- (1) That the discovery will not unrea- ference, both procedural and sub- sonably delay the hearing process; stantive. The representative must be (2) That the information sought: authorized to commit the party that he (i) Will be admissible at the hearing or she represents respecting those or appears reasonably calculated to issues. lead to the discovery of admissible evi- (2) Before the date set for the initial dence; prehearing conference, the parties’ rep- (ii) Is not already in the license pro- resentatives must make a good faith ceeding record or otherwise obtainable effort: by the party; (i) To meet in person, by telephone, (iii) Is not cumulative or repetitious; or by other appropriate means; and and (ii) To reach agreement on discovery (iv) Is not privileged or protected and the schedule of remaining steps in from disclosure by applicable law; the hearing process. (3) That the scope of the discovery is not unduly burdensome; (e) Failure to attend. Unless the ALJ (4) That the method to be used is the orders otherwise, a party that fails to least burdensome method available; attend or participate in a conference, (5) That any trade secrets or propri- after being served with reasonable no- etary information can be adequately tice of its time and place, waives all safeguarded; and objections to any agreements reached (6) That the standards for discovery in the conference and to any con- under paragraphs (f) through (h) of this sequent orders or rulings. section have been met, if applicable. (f) Scope. During a conference, the (c) Motions. A party may initiate dis- ALJ may dispose of any procedural covery: matters related to the case. (1) Pursuant to an agreement of the (g) Order. Within 2 days after the con- parties; or clusion of each conference, the ALJ (2) By filing a motion that: must issue an order that recites any (i) Briefly describes the proposed agreements reached at the conference method(s), purpose, and scope of the and any rulings made by the ALJ dur- discovery; ing or as a result of the conference. (ii) Explains how the discovery meets the criteria in paragraphs (b)(1)

§ 221.41 — How may parties obtain dis

§ 221.41 How may parties obtain dis- covery of information needed for through (b)(6) of this section; and the case? (iii) Attaches a copy of any proposed discovery request (written interrog- (a) General. By agreement of the par- atories, notice of deposition, or request ties or with the permission of the ALJ, for production of designated documents a party may obtain discovery of infor- or tangible things or for entry on des- mation to assist the party in preparing ignated land). or presenting its case. Available meth- (d) Timing of motions. A party must ods of discovery are: file any discovery motion under para- (1) Written interrogatories as pro- graph (c)(2) of this section within 7 vided in § 221.43; days after the effective date stated in (2) Depositions of witnesses as pro- the referral notice under § 221.26(c)(4), 7 vided in paragraph (h) of this section; CFR 1.626(c)(4), or 43 CFR 45.26(c)(4). and (e) Objections. (1) A party must file (3) Requests for production of des- any objections to a discovery motion sfrattini on LAPJZKW1R2 with DISTILLER ignated documents or tangible things or to specific portions of a proposed or for entry on designated land for in- discovery request within 7 days after spection or other purposes. service of the motion. 323 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00333 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.42 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.42 50 CFR Ch. II (10–1–22 Edition) (2) An objection must explain how, in by or under contract with the party the objecting party’s view, the dis- seeking the deposition. covery sought does not meet the cri- (3) A party may depose a senior De- teria in paragraphs (b)(1) through (b)(6) partment employee only if the party of this section. shows: (f) Materials prepared for hearing. A (i) That the employee’s testimony is party generally may not obtain dis- necessary in order to provide signifi- covery of documents and tangible cant, unprivileged information that is things otherwise discoverable under not available from any other source or paragraph (b) of this section if they by less burdensome means; and were prepared in anticipation of or for (ii) That the deposition would not the hearing by or for another party’s significantly interfere with the em- representative (including the party’s ployee’s ability to perform his or her attorney, expert, or consultant). government duties. (1) If a party wants to discover such (4) Unless otherwise stipulated to by materials, it must show: the parties or authorized by the ALJ (i) That it has substantial need of the upon a showing of extraordinary cir- materials in preparing its own case; cumstances, a deposition is limited to 1 and day of 7 hours. (ii) That the party is unable without (i) Completion of discovery. All dis- undue hardship to obtain the substan- covery must be completed within 25 tial equivalent of the materials by days after the initial prehearing con- other means. ference. (2) In ordering discovery of such ma- terials when the required showing has § 221.42 When must a party supple- been made, the ALJ must protect ment or amend information it has against disclosure of the mental im- previously provided? pressions, conclusions, opinions, or (a) Discovery. A party must promptly legal theories of an attorney. supplement or amend any prior re- (g) Experts. Unless restricted by the sponse to a discovery request if it ALJ, a party may discover any facts learns that the response: known or opinions held by an expert through the methods set out in para- (1) Was incomplete or incorrect when graph (a) of this section concerning made; or any relevant matters that are not priv- (2) Though complete and correct ileged. Such discovery will be per- when made, is now incomplete or incor- mitted only if: rect in any material respect. (1) The expert is expected to be a wit- (b) Witnesses and exhibits. (1) Within ness at the hearing; or 10 days after the date set for comple- (2) The expert is relied on by another tion of discovery, each party must file expert who is expected to be a witness an updated version of the list of wit- at the hearing, and the party shows: nesses and exhibits required under (i) That it has a compelling need for §§ 221.21(c), 221.22(c), or 221.25(c). the information; and (2) If a party wishes to include any (ii) That it cannot practicably obtain new witness or exhibit on its updated the information by other means. list, it must provide an explanation of (h) Limitations on depositions. (1) A why it was not feasible for the party to party may depose an expert or non-ex- include the witness or exhibit on its pert witness only if the party shows list under §§ 221.21(c), 221.22(c), or that the witness: 221.25(c). (i) Will be unable to attend the hear- (c) Failure to disclose. (1) A party will ing because of age, illness, or other in- not be permitted to introduce as evi- capacity; or dence at the hearing testimony from a (ii) Is unwilling to attend the hearing witness or other information that it voluntarily, and the party is unable to failed to disclose under §§ 221.21(c), compel the witness’s attendance at the 221.22(c), or 221.25(c), or paragraphs (a) sfrattini on LAPJZKW1R2 with DISTILLER hearing by subpoena. or (b) of this section. (2) Paragraph (h)(1)(ii) of this section (2) Paragraph (c)(1) of this section does not apply to any person employed does not apply if the failure to disclose 324 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00334 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.44 was substantially justified or is harm- (d) Access to records. A party’s answer less. to an interrogatory is sufficient when: (3) A party may object to the admis- (1) The information may be obtained sion of evidence under paragraph (c)(1) from an examination of records, or of this section before or during the from a compilation, abstract, or sum- hearing. mary based on such records; (4) The ALJ will consider the fol- (2) The burden of obtaining the infor- lowing in determining whether to ex- mation from the records is substan- clude evidence under paragraphs (c)(1) tially the same for all parties; through (3) of this section: (3) The answering party specifically (i) The prejudice to the objecting party; identifies the individual records from (ii) The ability of the objecting party which the requesting party may obtain to cure any prejudice; the information and where the records (iii) The extent to which presentation are located; and of the evidence would disrupt the or- (4) The answering party provides the derly and efficient hearing of the case; requesting party with reasonable op- (iv) The importance of the evidence; portunity to examine the records and and make a copy, compilation, abstract, or (v) The reason for the failure to dis- summary. close, including any bad faith or will- fulness regarding the failure. § 221.44 What are the requirements for depositions?

§ 221.43 — What are the requirements for (a) Motion and notice. Except upon

§ 221.43 What are the requirements for (a) Motion and notice. Except upon written interrogatories? agreement of the parties, a party wish- (a) Motion; limitation. Except upon ing to take a deposition must file a mo- agreement of the parties: tion under § 221.41(c). Any notice of dep- (1) A party wishing to propound in- osition filed with the motion must terrogatories must file a motion under state:

§ 221.41 — (c); and

§ 221.41(c); and (1) The time and place that the depo- (2) A party may propound no more than 25 interrogatories, counting dis- sition is to be taken; crete subparts as separate interrog- (2) The name and address of the per- atories, unless the ALJ approves a son before whom the deposition is to be higher number upon a showing of good taken; cause. (3) The name and address of the wit- (b) ALJ order. The ALJ will issue an ness whose deposition is to be taken; order under § 221.41(b) with respect to and any discovery motion requesting the (4) Any documents or materials that use of written interrogatories. The the witness is to produce. order will: (b) ALJ order. The ALJ will issue an (1) Grant the motion and approve the order under § 221.41(b) with respect to use of some or all of the proposed inter- any discovery motion requesting the rogatories; or taking of a deposition. The order will: (2) Deny the motion. (1) Grant the motion and approve the (c) Answers to interrogatories. Except taking of the deposition, subject to any upon agreement of the parties, the conditions or restrictions the ALJ may party to whom the proposed interrog- impose; or atories are directed must file its an- swers to any interrogatories approved (2) Deny the motion. by the ALJ within 15 days after (c) Arrangements. If the parties agree issuance of the order under paragraph to or the ALJ approves the taking of (b) of this section. the deposition, the party requesting (1) Each approved interrogatory must the deposition must make appropriate be answered separately and fully in arrangements for necessary facilities writing. and personnel. sfrattini on LAPJZKW1R2 with DISTILLER (2) The party or its representative (1) The deposition will be taken at must sign the answers to interrog- the time and place agreed to by the atories under oath or affirmation. parties or indicated in the ALJ’s order. 325 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00335 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.45 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.45 50 CFR Ch. II (10–1–22 Edition) (2) The deposition may be taken be- (i) Provide a copy of the videotape to fore any disinterested person author- any party that requests it, at the re- ized to administer oaths in the place questing party’s expense; and where the deposition is to be taken. (ii) Attach to the videotape a state- (3) Any party that objects to the tak- ment identifying the case and the depo- ing of a deposition because of the dis- nent and certifying the authenticity of qualification of the person before the video recording. whom it is to be taken must do so: (h) Use of deposition. A deposition (i) Before the deposition begins; or may be used at the hearing as provided (ii) As soon as the disqualification in § 221.53. becomes known or could have been dis- covered with reasonable diligence. § 221.45 What are the requirements for (4) A deposition may be taken by requests for documents or tangible telephone conference call, if agreed to things or entry on land? by the parties or approved in the ALJ’s (a) Motion. Except upon agreement of order. the parties, a party wishing to request (d) Testimony. Each witness deposed the production of designated docu- must be placed under oath or affirma- ments or tangible things or entry on tion, and the other parties must be designated land must file a motion given an opportunity for cross-exam- under § 221.41(c). A request may include ination. any of the following that are in the (e) Representation of witness. The wit- possession, custody, or control of an- ness being deposed may have counsel or other party: another representative present during the deposition. (1) The production of designated doc- (f) Recording and transcript. Except as uments for inspection and copying, provided in paragraph (g) of this sec- other than documents that are already tion, the deposition must be steno- in the license proceeding record; graphically recorded and transcribed at (2) The production of designated tan- the expense of the party that requested gible things for inspection, copying, the deposition. testing, or sampling; or (1) Any other party may obtain a (3) Entry on designated land or other copy of the transcript at its own ex- property for inspection and measuring, pense. surveying, photographing, testing, or (2) Unless waived by the deponent, sampling either the property or any the deponent will have 3 days after re- designated object or operation on the ceiving the transcript to read and sign property. it. (b) ALJ order. The ALJ will issue an (3) The person before whom the depo- order under § 221.41(b) with respect to sition was taken must certify the tran- any discovery motion requesting the script following receipt of the signed production of documents or tangible transcript from the deponent or expira- things or entry on land for inspection, tion of the 3-day review period, which- copying, or other purposes. The order ever occurs first. will: (g) Video recording. The testimony at (1) Grant the motion and approve the a deposition may be recorded on video- use of some or all of the proposed re- tape, subject to any conditions or re- quests; or strictions that the parties may agree (2) Deny the motion. to or the ALJ may impose, at the ex- pense of the party requesting the re- (c) Compliance with order. Except cording. upon agreement of the parties, the (1) The video recording may be in party to whom any approved request conjunction with an oral examination for production is directed must permit by telephone conference held under the approved inspection and other ac- paragraph (c)(4) of this section. tivities within 15 days after issuance of the order under paragraph (a) of this sfrattini on LAPJZKW1R2 with DISTILLER (2) After the deposition has been taken, the person recording the deposi- section. tion must: 326 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00336 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.47

§ 221.46 — What sanctions may the ALJ (b) Service. (1) A subpoena may be

§ 221.46 What sanctions may the ALJ (b) Service. (1) A subpoena may be impose for failure to comply with served by any person who is not a party discovery? and is 18 years of age or older. (a) Upon motion of a party, the ALJ (2) Service must be made by hand de- may impose sanctions under paragraph livering a copy of the subpoena to the (b) of this section if any party: person named therein. (1) Fails to comply with an order ap- (3) The person serving the subpoena proving discovery; or must: (2) Fails to supplement or amend a (i) Prepare a certificate of service response to discovery under § 221.42(a). setting forth: (A) The date, time, and manner of (b) The ALJ may impose one or more service; or of the following sanctions: (B) The reason for any failure of serv- (1) Infer that the information, testi- ice; and mony, document, or other evidence (ii) Swear to or affirm the certificate, withheld would have been adverse to attach it to a copy of the subpoena, the party; and return it to the party on whose be- (2) Order that, for the purposes of the half the subpoena was served. hearing, designated facts are estab- (c) Witness fees. (1) A party who sub- lished; poenas a witness who is not a party (3) Order that the party not introduce must pay him or her the same fees and into evidence, or otherwise rely on to mileage expenses that are paid wit- support its case, any information, tes- nesses in the district courts of the timony, document, or other evidence: United States. (i) That the party improperly with- (2) A witness who is not a party and held; or who attends a deposition or hearing at (ii) That the party obtained from an- the request of any party without hav- other party in discovery; ing been subpoenaed is entitled to the (4) Allow another party to use sec- same fees and mileage expenses as if he ondary evidence to show what the in- or she had been subpoenaed. However, formation, testimony, document, or this paragraph does not apply to Fed- other evidence withheld would have eral employees who are called as wit- shown; or nesses by a Department. (5) Take other appropriate action to (d) Motion to quash. (1) A person to remedy the party’s failure to comply. whom a subpoena is directed may re- quest by motion that the ALJ quash or

§ 221.47 — What are the requirements for modify the subpoena

§ 221.47 What are the requirements for modify the subpoena. subpoenas and witness fees? (2) The motion must be filed: (a) Request for subpoena. (1) Except as (i) Within 5 days after service of the provided in paragraph (a)(2) of this sec- subpoena; or tion, any party may request by written (ii) At or before the time specified in motion that the ALJ issue a subpoena the subpoena for compliance, if that is to the extent authorized by law for the less than 5 days after service of the attendance of a person, the giving of subpoena. testimony, or the production of docu- (3) The ALJ may quash or modify the ments or other relevant evidence dur- subpoena if it: ing discovery or for the hearing. (i) Is unreasonable; (2) A party may request a subpoena (ii) Requires production of informa- for a senior Department employee only tion during discovery that is not dis- if the party shows: coverable; or (i) That the employee’s testimony is (iii) Requires disclosure of irrelevant, necessary in order to provide signifi- privileged, or otherwise protected in- cant, unprivileged information that is formation. not available from any other source or (e) Enforcement. For good cause by less burdensome means; and shown, the ALJ may apply to the ap- (ii) That the employee’s attendance propriate United States District Court sfrattini on LAPJZKW1R2 with DISTILLER would not significantly interfere with for the issuance of an order compelling the ability to perform his or her gov- the appearance and testimony of a wit- ernment duties. ness or the production of evidence as 327 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00337 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.50 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.50 50 CFR Ch. II (10–1–22 Edition) set forth in a subpoena that has been (2) Any witness submitting written duly issued and served. testimony must be available for cross- examination at the hearing. HEARING, BRIEFING, AND DECISION (b) Oral testimony. Oral examination of a witness in a hearing, including on

§ 221.50 — When and where will the hear

§ 221.50 When and where will the hear- ing be held? cross-examination or redirect, must be conducted under oath and in the pres- (a) Except as provided in paragraph ence of the ALJ, with an opportunity (b) of this section, the hearing will be for all parties to question the witness. held at the time and place set at the (c) Telephonic testimony. The ALJ initial prehearing conference under may by order allow a witness to testify

§ 221.40 — , generally within 25 days after by telephonic conference call

§ 221.40, generally within 25 days after by telephonic conference call. the date set for completion of dis- (1) The arrangements for the call covery. must let each party listen to and speak (b) On motion by a party or on the to the witness and each other within ALJ’s initiative, the ALJ may change the hearing of the ALJ. the date, time, or place of the hearing (2) The ALJ will ensure the full iden- if he or she finds: tification of each speaker so the re- (1) That there is good cause for the porter can create a proper record. change; and (3) The ALJ may issue a subpoena (2) That the change will not unduly under § 221.47 directing a witness to tes- prejudice the parties and witnesses. tify by telephonic conference call.

§ 221.51 — What are the parties’ rights

§ 221.51 What are the parties’ rights during the hearing? § 221.53 How may a party use a deposi- tion in the hearing? Each party has the following rights during the hearing, as necessary to as- (a) In general. Subject to the provi- sure full and accurate disclosure of the sions of this section, a party may use facts: in the hearing any part or all of a depo- sition taken under § 221.44 against any (a) To present testimony and exhib- party who: its, consistent with the requirements in §§ 221.21(c), 221.22(c), 221.25(c), (1) Was present or represented at the 221.42(b), and 221.52; taking of the deposition; or (b) To make objections, motions, and (2) Had reasonable notice of the tak- arguments; and ing of the deposition. (c) To cross-examine witnesses and to (b) Admissibility. (1) No part of a depo- conduct re-direct and re-cross exam- sition will be included in the hearing ination as permitted by the ALJ. record, unless received in evidence by the ALJ.

§ 221.52 — What are the requirements for (2) The ALJ will exclude from evi

§ 221.52 What are the requirements for (2) The ALJ will exclude from evi- presenting testimony? dence any question and response to (a) Written direct testimony. Unless which an objection: otherwise ordered by the ALJ, all di- (i) Was noted at the taking of the rect hearing testimony for each party’s deposition; and initial case must be prepared and sub- (ii) Would have been sustained if the mitted in written form. The ALJ will witness had been personally present determine whether rebuttal testimony, and testifying at a hearing. if allowed, must be submitted in writ- (3) If a party offers only part of a dep- ten form. osition in evidence: (1) Prepared written testimony must: (i) An adverse party may require the (i) Have line numbers inserted in the party to introduce any other part that left-hand margin of each page; ought in fairness to be considered with (ii) Be authenticated by an affidavit the part introduced; and or declaration of the witness; (ii) Any other party may introduce (iii) Be filed within 10 days after the any other parts. date set for completion of discovery; (c) Videotaped deposition. If the depo- sfrattini on LAPJZKW1R2 with DISTILLER and sition was recorded on videotape and is (iv) Be offered as an exhibit during admitted into evidence, relevant por- the hearing. tions will be played during the hearing 328 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00338 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.56 and transcribed into the record by the (2) If received in evidence at the reporter. hearing, a stipulation is binding on the stipulating parties.

§ 221.54 — What are the requirements for (3) A stipulation may be written or

§ 221.54 What are the requirements for (3) A stipulation may be written or exhibits, official notice, and stipula- made orally at the hearing. tions? (a) General. (1) Except as provided in § 221.55 What evidence is admissible at paragraphs (b) through (d) of this sec- the hearing? tion, any material offered in evidence, (a) General. (1) Subject to the provi- other than oral testimony, must be of- sions of § 221.42(b), the ALJ may admit fered in the form of an exhibit. any written, oral, documentary, or de- (2) Each exhibit offered by a party monstrative evidence that is: must be marked for identification. (i) Relevant, reliable, and probative; (3) Any party who seeks to have an and exhibit admitted into evidence must (ii) Not privileged or unduly repeti- provide: tious or cumulative. (i) The original of the exhibit to the (2) The ALJ may exclude evidence if reporter, unless the ALJ permits the its probative value is substantially substitution of a copy; and outweighed by the risk of undue preju- (ii) A copy of the exhibit to the ALJ. dice, confusion of the issues, or delay. (b) Material not offered. If a document (3) Hearsay evidence is admissible. offered as an exhibit contains material The ALJ may consider the fact that not offered as evidence: evidence is hearsay when determining (1) The party offering the exhibit its probative value. must: (4) The Federal Rules of Evidence do not directly apply to the hearing, but (i) Designate the matter offered as may be used as guidance by the ALJ evidence; and the parties in interpreting and ap- (ii) Segregate and exclude the mate- plying the provisions of this section. rial not offered in evidence, to the ex- (b) Objections. Any party objecting to tent practicable; and the admission or exclusion of evidence (iii) Provide copies of the entire doc- must concisely state the grounds. A ument to the other parties appearing ruling on every objection must appear at the hearing. in the record. (2) The ALJ must give the other par- ties an opportunity to inspect the en- § 221.56 What are the requirements for tire document and offer in evidence transcription of the hearing? any other portions of the document. (a) Transcript and reporter’s fees. The (c) Official notice. (1) At the request of hearing will be transcribed verbatim. any party at the hearing, the ALJ may (1) The Department of Commerce’s take official notice of any matter of designated ALJ office will secure the which the courts of the United States services of a reporter and pay the re- may take judicial notice, including the porter’s fees to provide an original public records of any Department transcript to the Department of Com- party. merce’s designated ALJ office on an ex- (2) The ALJ must give the other par- pedited basis. ties appearing at the hearing an oppor- (2) Each party must pay the reporter tunity to show the contrary of an offi- for any copies of the transcript ob- cially noticed fact. tained by that party. (3) Any party requesting official no- (b) Transcript Corrections. (1) Any tice of a fact after the conclusion of party may file a motion proposing cor- the hearing must show good cause for rections to the transcript. The motion its failure to request official notice must be filed within 5 days after re- during the hearing. ceipt of the transcript, unless the ALJ (d) Stipulations. (1) The parties may sets a different deadline. sfrattini on LAPJZKW1R2 with DISTILLER stipulate to any relevant facts or to (2) Unless a party files a timely mo- the authenticity of any relevant docu- tion under paragraph (b)(1) of this sec- ments. tion, the transcript will be presumed to 329 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00339 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.57 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.57 50 CFR Ch. II (10–1–22 Edition) be correct and complete, except for ob- (i) Such an exhibit may be repro- vious typographical errors. duced, within reasonable limits, in an (3) As soon as practicable after the appendix to the brief. close of the hearing and after consider- (ii) Any pertinent analysis of an ex- ation of any motions filed under para- hibit may be included in a brief. graph (b)(1) of this section, the ALJ (2) If a brief exceeds 20 pages, it must will issue an order making any correc- contain: tions to the transcript that the ALJ (i) A table of contents and of points finds are warranted. made, with page references; and (ii) An alphabetical list of citations

§ 221.57 — Who has the burden of persua- to legal authority, with page ref

§ 221.57 Who has the burden of persua- to legal authority, with page ref- sion, and what standard of proof erences. applies? (a) Any party who has filed a request § 221.60 What are the requirements for for a hearing has the burden of persua- the ALJ’s decision? sion with respect to the issues of mate- (a) Timing. The ALJ must issue a de- rial fact raised by that party. cision within the shorter of the fol- (b) The standard of proof is a prepon- lowing time periods: derance of the evidence. (1) 30 days after the close of the hear- ing under § 221.58; or

§ 221.58 — When will the hearing record (2) 120 days after the effective date

§ 221.58 When will the hearing record (2) 120 days after the effective date close? stated in the referral notice under (a) The hearing record will close § 221.26(c)(4), 7 CFR 1.626(c)(4), or 43 when the ALJ closes the hearing, un- CFR 45.26(c)(4). less he or she directs otherwise. (b) Content. (1) The decision must (b) Evidence may not be added after contain: the hearing record is closed, but the (i) Findings of fact on all disputed transcript may be corrected under issues of material fact;

§ 221.56 — (b). (ii) Conclusions of law necessary to

§ 221.56(b). (ii) Conclusions of law necessary to make the findings of fact (such as rul-

§ 221.59 — What are the requirements for ings on materiality and on the admissi

§ 221.59 What are the requirements for ings on materiality and on the admissi- post-hearing briefs? bility of evidence); and (a) General. (1) Each party may file a (iii) Reasons for the findings and con- post-hearing brief within 15 days after clusions. the close of the hearing. (2) The ALJ may adopt any of the (2) A party may file a reply brief only findings of fact proposed by one or if requested by the ALJ. The deadline more of the parties. for filing a reply brief, if any, will be (3) The decision will not contain con- set by the ALJ. clusions as to whether any preliminary (3) The ALJ may limit the length of condition or prescription should be the briefs to be filed under this section. adopted, modified, or rejected, or (b) Content. (1) An initial brief must whether any proposed alternative include: should be accepted or rejected. (i) A concise statement of the case; (c) Service. Promptly after issuing his (ii) A separate section containing or her decision, the ALJ must: proposed findings regarding the issues (1) Serve the decision on each party of material fact, with supporting cita- to the hearing; tions to the hearing record; (2) Prepare a list of all documents (iii) Arguments in support of the par- that constitute the complete record for ty’s position; and the hearing process (including the deci- (iv) Any other matter required by the sion) and certify that the list is com- ALJ. plete; and (2) A reply brief, if requested by the (3) Forward to FERC the complete ALJ, must be limited to any issues record for the hearing process, along identified by the ALJ. with the certified list prepared under (c) Form. (1) An exhibit admitted in paragraph (c)(2) of this section, for in- sfrattini on LAPJZKW1R2 with DISTILLER evidence or marked for identification clusion in the record for the license in the record may not be reproduced in proceeding. Materials received in elec- the brief. tronic form, e.g., as attachments to 330 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00340 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 221.72 electronic mail, should be transmitted nary condition or prescription with to FERC in electronic form. However, FERC; or for cases in which a settlement was (ii) For a case under § 221.1(d)(2), reached prior to a decision, the entire within 60 days after NOAA files a pro- record need not be transmitted to posed condition or prescription with FERC. In such situations, only the ini- FERC. tial pleadings (hearing requests with (b) Content. Your proposal must in- attachments, any notices of interven- clude: tion and response, answers, and refer- (1) A description of the alternative, ral notice) and any dismissal order of in an equivalent level of detail to the ALJ need be transmitted. NOAA’s preliminary condition or pre- (d) Finality. The ALJ’s decision under scription; this section with respect to the dis- (2) An explanation of how the alter- puted issues of material fact will not native: be subject to further administrative re- (i) If a condition, will provide for the view. To the extent the ALJ’s decision adequate protection and utilization of forms the basis for any condition or the reservation; or prescription subsequently included in the license, it may be subject to judi- (ii) If a prescription, will be no less cial review under 16 U.S.C. 825l(b). protective than the fishway prescribed by NMFS; (3) An explanation of how the alter- Subpart C—Alternatives Process native, as compared to the preliminary

§ 221.70 — How must documents be filed condition or prescription, will

§ 221.70 How must documents be filed condition or prescription, will: and served under this subpart? (i) Cost significantly less to imple- ment; or (a) Filing. (1) A document under this (ii) Result in improved operation of subpart must be filed using one of the the project works for electricity pro- methods set forth in § 221.12(b). duction; (2) A document is considered filed on the date it is received. However, any (4) An explanation of how the alter- document received after 5 p.m. at the native will affect: place where the filing is due is consid- (i) Energy supply, distribution, cost, ered filed on the next regular business and use; day. (ii) Flood control; (b) Service. (1) Any document filed (iii) Navigation; under this subpart must be served at (iv) Water supply; the same time the document is deliv- (v) Air quality; and ered or sent for filing. A complete copy (vi) Other aspects of environmental of the document must be delivered or quality; and sent to each license party and FERC, (5) Specific citations to any scientific using: studies, literature, and other docu- (i) One of the methods of service in mented information relied on to sup-

§ 221.13 — (c); or port your proposal, including any as

§ 221.13(c); or port your proposal, including any as- (ii) Regular mail. sumptions you are making (e.g., re- (2) The provisions of § 221.13(d) re- garding the cost of energy or the rate garding a certificate of service apply to of inflation). If any such document is service under this subpart. not already in the license proceeding record, you must provide a copy with

§ 221.71 — How do I propose an alter- the proposal

§ 221.71 How do I propose an alter- the proposal. native? (a) General. To propose an alternative § 221.72 May I file a revised proposed condition or prescription, you must: alternative? (1) Be a license party; and (a) Within 20 days after issuance of (2) File a written proposal with the the ALJ’s decision under § 221.60, you Office of Habitat Conservation, at the may file with the Office of Habitat sfrattini on LAPJZKW1R2 with DISTILLER address set forth in § 221.2: Conservation, at the address set forth (i) For a case under § 221.1(d)(1), with- in § 221.2, a revised proposed alternative in 30 days after NOAA files a prelimi- condition or prescription if: 331 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00341 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

§ 221.73 — 50 CFR Ch. II (10–1–22 Edition)

§ 221.73 50 CFR Ch. II (10–1–22 Edition) (1) You previously filed a proposed al- (1) Any evidence on the implementa- ternative that met the requirements of tion costs or operational impacts for

§ 221.71 — ; and electricity production of the proposed

§ 221.71; and electricity production of the proposed (2) Your revised proposed alternative alternative; is designed to respond to one or more (2) Any comments received on findings of fact by the ALJ. NOAA’s preliminary condition or pre- (b) Your revised proposed alternative scription; must: (3) Any ALJ decision on disputed (1) Satisfy the content requirements issues of material fact issued under for a proposed alternative under § 221.60 with respect to the preliminary

§ 221.71 — (b); and condition or prescription;

§ 221.71(b); and condition or prescription; (2) Identify the specific ALJ find- (4) Comments received on any draft ing(s) to which the revised proposed al- or final NEPA documents; and ternative is designed to respond and (5) The license party’s proposal under how the revised proposed alternative

§ 221.71 — or § 221.72

§ 221.71 or § 221.72. differs from the original alternative. (b) NOAA must accept a proposed al- (c) Filing a revised proposed alter- ternative if NOAA determines, based native will constitute a withdrawal of the previously filed proposed alter- on substantial evidence provided by native. any license party or otherwise reason- ably available to NOAA, that the alter-

§ 221.73 — When will NOAA file its modi- native

§ 221.73 When will NOAA file its modi- native: fied condition or prescription? (1) Will, as compared to NOAA’s pre- (a) Except as provided in paragraph liminary condition or prescription: (b) of this section, if any license party (i) Cost significantly less to imple- proposes an alternative to a prelimi- ment; or nary condition or prescription under (ii) Result in improved operation of

§ 221.71 — , NOAA will do the following the project works for electricity pro

§ 221.71, NOAA will do the following the project works for electricity pro- within 60 days after the deadline for fil- duction; and ing comments on FERC’s draft NEPA (2) Will: document under 18 CFR 5.25(c): (i) If a condition, provide for the ade- (1) Analyze under § 221.74 any alter- quate protection and utilization of the native condition or prescription pro- reservation; or posed under § 221.71 or 221.72; and (ii) If a prescription, be no less pro- (2) File with FERC: tective than NMFS’s preliminary pre- (i) Any condition or prescription that scription. NOAA adopts as its modified condition (c) For purposes of paragraphs (a) and or prescription; and (b) of this section, NOAA will consider (ii) Its analysis of the modified condi- evidence and supporting material pro- tion or prescription and any proposed vided by any license party by the dead- alternative under § 221.74(c). line for filing comments on FERC’s (b) If NOAA needs additional time to NEPA document under 18 CFR 5.25(c). complete the steps set forth in para- (d) When NOAA files with FERC the graphs (a)(1) and (a)(2) of this section, condition or prescription that NOAA it will so inform FERC within 60 days adopts as its modified condition or pre- after the deadline for filing comments scription under § 221.73(a)(2), it must on FERC’s draft NEPA document under also file: 18 CFR 5.25(c). (1) A written statement explaining:

§ 221.74 — How will NOAA analyze a pro- (i) The basis for the adopted condi

§ 221.74 How will NOAA analyze a pro- (i) The basis for the adopted condi- posed alternative and formulate its tion or prescription; modified condition or prescription? (ii) If NOAA is not accepting any (a) In deciding whether to accept an pending alternative, its reasons for not alternative proposed under § 221.71 or doing so; and 221.72, NOAA must consider evidence (iii) If any alternative submitted sfrattini on LAPJZKW1R2 with DISTILLER and supporting material provided by under § 221.71 was subsequently with- any license party or otherwise reason- drawn by the license party, that the al- ably available to NOAA, including: ternative was withdrawn; and 332 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00342 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 National Marine Fisheries Service/NOAA, Commerce § 222.101 (2) Any study, data, and other factual Subpart C—General Permit Procedures information relied on that is not al- ready part of the licensing proceeding 222.301 General requirements. record. 222.302 Procedure for obtaining permits. 222.303 Issuance of permits. (e) The written statement under 222.304 Renewal of permits. paragraph (d)(1) of this section must 222.305 Rights of succession and transfer of demonstrate that NOAA gave equal permits. consideration to the effects of the con- 222.306 Modification, amendment, suspen- dition or prescription adopted and any sion, cancellation, and revocation of per- alternative not accepted on: mits. (1) Energy supply, distribution, cost, 222.307 Permits for incidental taking of spe- and use; cies. (2) Flood control; 222.308 Permits for scientific purposes or for (3) Navigation; the enhancement of propagation or sur- (4) Water supply; vival of species. (5) Air quality; and 222.309 Permits for listed species of sea tur- (6) Preservation of other aspects of tles involving the Fish and Wildlife Serv- ice. environmental quality. 222.310 Permit authority for designated

§ 221.75 — Has OMB approved the infor- agents and employees of specified Fed

§ 221.75 Has OMB approved the infor- agents and employees of specified Fed- mation collection provisions of this eral and state agencies. subpart? Subpart D—Observer Requirement Yes. This rule contains provisions that would collect information from 222.401 Observer requirement. the public. It therefore requires ap- 222.402 Annual determination of fisheries to proval by the Office of Management be observed; notice and comment. and Budget (OMB) under the Paper- 222.403 Duration of selection; effective date. work Reduction Act of 1995, 44 U.S.C. 222.404 Observer program sampling. 3501 et seq. (PRA). According to the Subpart E—Experimental Populations PRA, a Federal agency may not con- duct or sponsor, and a person is not re- 222.501 Definitions. quired to respond to, a collection of in- 222.502 Listing. formation unless it displays a cur- 222.503 Prohibitions. rently valid OMB control number that 222.504 Interagency cooperation. indicates OMB approval. OMB has re- AUTHORITY: 16 U.S.C. 1531 et seq.; 16 U.S.C. viewed the information collection in 742a et seq. this rule and approved it under OMB Section 222.403 also issued under 16 U.S.C. control number 1094–0001. 1361 et seq. SOURCE: 64 FR 14054, Mar. 23, 1999, unless PART 222—GENERAL ENDANGERED otherwise noted. AND THREATENED MARINE SPECIES Subpart A—Introduction and General Subpart A—Introduction and Provisions General Provisions Sec. § 222.101 Purpose and scope of regula- 222.101 Purpose and scope of regulations. tions. 222.102 Definitions. (a) The regulations of parts 222, 223, 222.103 Federal/state cooperation in the con- servation of endangered and threatened and 224 of this chapter implement the species. Endangered Species Act (Act), and gov- ern the taking, possession, transpor- Subpart B—Certificates of Exemption for tation, sale, purchase, barter, expor- Pre-Act Endangered Species Parts tation, importation of, and other re- quirements pertaining to wildlife and 222.201 General requirements. plants under the jurisdiction of the 222.202 Certificate renewal. 222.203 Modification, amendment, suspen- Secretary of Commerce and determined sfrattini on LAPJZKW1R2 with DISTILLER sion, and revocation of certificates. to be threatened or endangered pursu- 222.204 Administration of certificates. ant to section 4(a) of the Act. These 222.205 Import and export requirements. regulations are implemented by the 333 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00343 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31

50 CFR § 221.1-221.75 - Conditions and prescriptions in FERC hydropower licenses

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