Home
gpo.gov
govinfo.gov

e-CFR Navigation Aids

Browse

Simple Search

Advanced Search

 — Boolean

 — Proximity

 

Search History

Search Tips

Corrections

Latest Updates

User Info

FAQs

Agency List

Incorporation By Reference

eCFR logo

Related Resources

Electronic Code of Federal Regulations

e-CFR data is current as of July 9, 2020

Title 50Chapter IISubchapter CPart 221Subpart B → Subject Group


Title 50: Wildlife and Fisheries
PART 221—CONDITIONS AND PRESCRIPTIONS IN FERC HYDROPOWER LICENSES
Subpart B—Hearing Process


Initiation of Hearing Process

§221.20   What supporting information must NOAA provide with its preliminary conditions or prescriptions?

(a) Supporting information. (1) When NOAA files a preliminary condition or prescription with FERC, it must include a rationale for the condition or prescription and an index to NOAA's administrative record that identifies all documents relied upon.

(2) If any of the documents relied upon are not already in the license proceeding record, NOAA must:

(i) File them with FERC at the time it files the preliminary condition or prescription;

(ii) Provide copies to the license applicant; and

(b) Service. NOAA will serve a copy of its preliminary condition or prescription on each license party.

§221.21   How do I request a hearing?

(a) General. To request a hearing on disputed issues of material fact with respect to any preliminary condition or prescription filed by NOAA, you must:

(1) Be a license party; and

(2) File with the Office of Habitat Conservation, at the address provided in §221.2, a written request for a hearing:

(i) For a case under §221.1(d)(1), within 30 days after NOAA files a preliminary condition or prescription with FERC; or

(ii) For a case under §221.1(d)(2), within 60 days after NOAA files a preliminary condition or prescription with FERC.

(b) Content. Your hearing request must contain:

(1) A numbered list of the factual issues that you allege are in dispute, each stated in a single, concise sentence;

(2) The following information with respect to each issue:

(i) The specific factual statements made or relied upon by NOAA under §221.20(a) that you dispute;

(ii) The basis for your opinion that those factual statements are unfounded or erroneous; and

(iii) The basis for your opinion that any factual dispute is material.

(3) With respect to any scientific studies, literature, and other documented information supporting your opinions under paragraphs (b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the information relied upon. If any such document is not already in the license proceeding record, you must provide a copy with the request; and

(4) A statement indicating whether or not you consent to service by electronic means under §221.13(c)(4) and, if so, by what means.

(c) Witnesses and exhibits. Your hearing request must also list the witnesses and exhibits that you intend to present at the hearing, other than solely for impeachment purposes.

(1) For each witness listed, you must provide:

(i) His or her name, address, telephone number, and qualifications; and

(ii) A brief narrative summary of his or her expected testimony.

(2) For each exhibit listed, you must specify whether it is in the license proceeding record.

(d) Page limits. (1) For each disputed factual issue, the information provided under paragraph (b)(2) of this section may not exceed two pages.

(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.

§221.22   How do I file a notice of intervention and response?

(a) General. (1) To intervene as a party to the hearing process, you must:

(i) Be a license party; and

(ii) File with the Office of Habitat Conservation, at the address provided in §221.2, a notice of intervention and a written response to any request for a hearing within 20 days after the deadline in §221.21(a)(2).

(2) A notice of intervention and response must be limited to one or more of the issues of material fact raised in the hearing request and may not raise additional issues.

(b) Content. In your notice of intervention and response you must explain your position with respect to the issues of material fact raised in the hearing request under §221.21(b).

(1) If you agree with the information provided by NOAA under §221.20(a) or by the requester under §221.21(b), your response may refer to NOAA's explanation or the requester's hearing request for support.

(2) If you wish to rely on additional information or analysis, your response must provide the same level of detail with respect to the additional information or analysis as required under §221.21(b).

(3) Your notice of intervention and response must also indicate whether or not you consent to service by electronic means under §221.13(c)(4) and, if so, by what means.

(c) Witnesses and exhibits. Your response and notice must also list the witnesses and exhibits that you intend to present at the hearing, other than solely for impeachment purposes.

(1) For each witness listed, you must provide:

(i) His or her name, address, telephone number, and qualifications; and

(ii) A brief narrative summary of his or her expected testimony; and

(2) For each exhibit listed, you must specify whether it is in the license proceeding record.

(d) Page limits. (1) For each disputed factual issue, the information provided under paragraph (b) of this section (excluding citations to scientific studies, literature, and other documented information supporting your opinions) may not exceed two pages.

(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.

§221.23   Will hearing requests be consolidated?

(a) Initial Department coordination. If NOAA has received a copy of a hearing request, it must contact the other Departments and determine:

(1) Whether any of the other Departments has also filed a preliminary condition or prescription relating to the license with FERC; and

(2) If so, whether the other Department has also received a hearing request with respect to the preliminary condition or prescription.

(b) Decision on consolidation. Where more than one Department has received a hearing request, the Departments involved must decide jointly:

(1) Whether the cases should be consolidated for hearing under paragraphs (c)(3)(ii) through (c)(3)(iv) of this section; and

(2) If so, which Department will conduct the hearing on their behalf.

(c) Criteria. Cases will or may be consolidated as follows:

(1) All hearing requests with respect to any conditions from the same Department will be consolidated for hearing.

(2) All hearing requests with respect to any prescriptions from the same Department will be consolidated for hearing.

(3) All or any portion of the following may be consolidated for hearing, if the Departments involved determine that there are common issues of material fact or that consolidation is otherwise appropriate:

(i) Two or more hearing requests with respect to any condition and any prescription from the same Department;

(ii) Two or more hearing requests with respect to conditions from different Departments;

(iii) Two or more hearing requests with respect to prescriptions from different Departments; or

(iv) Two or more hearing requests with respect to any condition from one Department and any prescription from another Department.

§221.24   Can a hearing process be stayed to allow for settlement discussions?

(a) Prior to referral to the ALJ, the hearing requester and NOAA may by agreement stay the hearing process under this subpart for a period not to exceed 120 days to allow for settlement discussions, if the stay period and any subsequent hearing process (if required) can be accommodated within the time frame established for the license proceeding.

(b) Any stay of the hearing process will not affect the deadline for filing a notice of intervention and response, if any, pursuant to §221.22(a)(1)(ii).

§221.25   How will NOAA respond to any hearing requests?

(a) General. Within 50 days after the deadline in §221.21(a)(2) or 30 days after the expiration of any stay period under §221.24, whichever is later, NOAA may file with the Office of Habitat Conservation an answer to any hearing request under §221.21.

(b) Content. If NOAA files an answer:

(1) For each of the numbered factual issues listed under §221.21(b)(1), the answer must explain NOAA's position with respect to the issues of material fact raised by the requester, including one or more of the following statements as appropriate:

(i) That NOAA is willing to stipulate to the facts as alleged by the requester;

(ii) That NOAA believes the issue listed by the requester is not a factual issue, explaining the basis for such belief;

(iii) That NOAA believes the issue listed by the requester is not material, explaining the basis for such belief; or

(iv) That NOAA agrees that the issue is factual, material, and in dispute.

(2) The answer must also indicate whether the hearing request will be consolidated with one or more other hearing requests under §221.23 and, if so:

(i) Identify any other hearing request that will be consolidated with this hearing request; and

(ii) State which Department will conduct the hearing and provide contact information for the appropriate Department hearings component.

(3) If NOAA plans to rely on any scientific studies, literature, and other documented information that are not already in the license proceeding record, it must provide a copy with its answer.

(4) The answer must also indicate whether or not NOAA consents to service by electronic means under §221.13(c)(4) and, if so, by what means.

(c) Witnesses and exhibits. NOAA's answer must also list the witnesses and exhibits that it intends to present at the hearing, other than solely for impeachment purposes.

(1) For each witness listed, NOAA must provide:

(i) His or her name, address, telephone number, and qualifications; and

(ii) A brief narrative summary of his or her expected testimony.

(2) For each exhibit listed, NOAA must specify whether it is in the license proceeding record.

(d) Page limits. (1) For each disputed factual issue, the information provided under paragraph (b)(1) of this section may not exceed two pages.

(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.

(e) Notice in lieu of answer. If NOAA elects not to file an answer to a hearing request:

(1) NOAA is deemed to agree that the issues listed by the requester are factual, material, and in dispute;

(2) NOAA may file a list of witnesses and exhibits with respect to the request only as provided in §221.42(b); and

(3) NOAA must file a notice containing the information required by paragraph (b)(2) of this section, if the hearing request will be consolidated with one or more other hearing requests under §221.23, and the statement required by paragraph (b)(4) of this section.

§221.26   What will the Office of Habitat Conservation do with any hearing requests?

(a) Case referral. Within 55 days after the deadline in §221.21(a)(2) or 35 days after the expiration of any stay period under §221.24, whichever is later, the Office of Habitat Conservation will refer the case for a hearing as follows:

(1) If the hearing is to be conducted by NOAA, the Office of Habitat Conservation will refer the case to the Department of Commerce's designated ALJ office.

(2) If the hearing is to be conducted by another Department, the Office of Habitat Conservation will refer the case to the hearings component used by that Department.

(b) Content. The case referral will consist of the following:

(1) Two copies of any preliminary condition or prescription under §221.20;

(2) The original and one copy of any hearing request under §221.21;

(3) The original and one copy of any notice of intervention and response under §221.22;

(4) The original and one copy of any answer under §221.25; and

(5) The original and one copy of a referral notice under paragraph (c) of this section.

(c) Notice. At the time the Office of Habitat Conservation refers the case for a hearing, it must provide a referral notice that contains the following information:

(1) The name, address, telephone number, and facsimile number of the Department hearings component that will conduct the hearing;

(2) The name, address, and other contact information for the representative of each party to the hearing process;

(3) An identification of any other hearing request that will be consolidated with this hearing request; and

(4) The effective date of the case referral to the appropriate Department hearings component.

(d) Delivery and service. (1) The Office of Habitat Conservation must refer the case to the appropriate Department hearings component by one of the methods identified in §221.12(b)(1)(i) and (b)(1)(ii).

(2) The Office of Habitat Conservation must serve a copy of the referral notice on FERC and each party to the hearing by one of the methods identified in §221.13(c)(1) and (c)(2).

§221.27   What regulations apply to a case referred for a hearing?

(a) If the Office of Habitat Conservation refers the case to the Department of Commerce's designated ALJ office, the regulations in this subpart will continue to apply to the hearing process.

(b) If the Office of Habitat Conservation refers the case to the United States Department of Agriculture's Office of Administrative Law Judges, the regulations at 7 CFR 1.601 et seq. will apply from that point on.

(c) If the Office of Habitat Conservation refers the case to the Department of the Interior's Office of Hearings and Appeals, the regulations at 43 CFR 45.1 et seq. will apply from that point on.

Need assistance?