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Title 50Chapter IISubchapter CPart 221 → Subpart A


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


Subpart A—General Provisions


Contents
§221.1   What is the purpose of this part, and to what license proceedings does it apply?
§221.2   What terms are used in this part?
§221.3   How are time periods computed?
§221.4   What deadlines apply to the trial-type hearing and alternatives processes?

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§221.1   What is the purpose of this part, and to what license proceedings does it apply?

(a) Hearing process. (1) The regulations in subparts A and B of this part contain rules of practice and procedure applicable to hearings on disputed issues of material fact with respect to mandatory conditions and prescriptions that the Department of Commerce (acting through the National Oceanic and Atmospheric Administration's (NOAA's) National Marine Fisheries Service (NMFS) and other NOAA entities) may develop for inclusion in a hydropower license issued under subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791 et seq. The authority to develop these conditions and prescriptions is granted by FPA sections 4(e) and 18, 16 U.S.C. 797(e) and 811, which authorize the Secretary of Commerce to condition hydropower licenses issued by the Federal Energy Regulatory Commission (FERC) and to prescribe fishways.

(2) The hearing process under this part does not apply to provisions that the Department of Commerce may submit to FERC under any authority other than FPA section 4(e) and 18, including recommendations under FPA section 10(a) or (j), 16 U.S.C. 803(a), (j), or terms and conditions under FPA section 30(c), 16 U.S.C. 823a(c).

(3) The FPA also grants the Department of Agriculture and the Department of the Interior the authority to develop mandatory conditions, and the Department of the Interior the authority to develop mandatory prescriptions, for inclusion in a hydropower license. Where the Department of Commerce and either or both of these other Departments develop conditions or prescriptions to be included in the same hydropower license and where the Departments agree to consolidate the hearings under §221.23:

(i) A hearing conducted under this part will also address disputed issues of material fact with respect to any condition or prescription developed by one of the other Departments; or

(ii) A hearing requested under this part will be conducted by one of the other Departments, pursuant to 7 CFR 1.601 et seq. or 43 CFR 45.1 et seq., as applicable.

(4) The regulations in subparts A and B of this part will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved and the provisions of §221.60(a).

(b) Alternatives process. The regulations in subparts A and C of this part contain rules of procedure applicable to the submission and consideration of alternative conditions and prescriptions under FPA section 33, 16 U.S.C. 823d. That section allows any party to the license proceeding to propose an alternative to a condition deemed necessary by NOAA under section 4(e) or a fishway prescribed by NMFS under section 18.

(c) Reserved authority. Where NOAA has notified or notifies FERC that it is reserving its authority to develop one or more conditions or prescriptions at a later time, the hearing and alternatives processes under this part for such conditions or prescriptions will be available if and when NOAA exercises its reserved authority.

(d) Applicability. (1) This part applies to any hydropower license proceeding for which the license had not been issued as of November 17, 2005, and for which one or more preliminary conditions or prescriptions have been or are filed with FERC before FERC issues the license.

(2) This part also applies to any exercise of NOAA's reserved authority under paragraph (c) of this section with respect to a hydropower license issued before or after November 17, 2005.

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§221.2   What terms are used in this 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 prescription that a license party other than NOAA or another Department develops as an alternative to a preliminary 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 for obtaining facts or information to assist a party in preparing or presenting its case.

Ex parte communication means an oral or written communication to the ALJ that is made without providing all parties reasonable notice and an opportunity to participate.

FERC means the Federal Energy Regulatory Commission.

FPA means the Federal Power Act, 16 U.S.C. 791 et seq.

Intervention means a process by which a person who did not request a hearing under §221.21 can participate as a party to the hearing under §221.22.

License party means a party to the license proceeding, as that term is defined at 18 CFR 385.102(c).

License proceeding means a proceeding before FERC for issuance of a license for a hydroelectric facility under 18 CFR part 4 or 5.

Material fact means a fact that, if proved, may affect a Department's decision whether to affirm, modify, or withdraw any condition or prescription.

Modified condition or prescription means any modified condition or prescription filed by a Department with FERC for inclusion in a hydropower license.

NEPA document means an environmental document as defined at 40 CFR 1508.10 to include an environmental assessment, environmental impact statement (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, acting by and through the Assistant Administrator 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 Atmosphere or one of its line offices.

Office of Habitat Conservation means the NMFS Office of Habitat Conservation. Address: Chief, Habitat Protection Division, Office of Habitat Conservation, National Marine Fisheries Service, 1315 East-West Highway, Silver 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 consolidated under §221.23;

(2) A license party that has filed a timely notice of intervention and response under:

(i) Section 221.22; or

(ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing process consolidated under §221.23;

(3) NOAA; and

(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under §221.23.

Person means an individual; a partnership, corporation, association, or other legal entity; an unincorporated organization; and any Federal, State, tribal, county, district, territorial, or local government or agency.

Preliminary condition or prescription means any preliminary condition or prescription filed by a Department with FERC for potential inclusion in a hydropower license.

Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C. 811, to provide for the safe, timely, and effective passage of fish.

Representative means a person who:

(1) Is authorized by a party to represent the party in a hearing process under this subpart; and

(2) Has filed an appearance under §221.10.

Reservation has the same meaning as the term “reservations” in FPA sec. 3(2), 16 U.S.C. 796(2).

Secretary means the Secretary of Commerce or his or her designee.

Senior Department employee has the same meaning as the term “senior employee” in 5 CFR 2637.211(a).

You refers to a party other than a Department.

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§221.3   How are time periods computed?

(a) General. Time periods are computed as follows:

(1) The day of the act or event from which the period begins to run is not included.

(2) The last day of the period is included.

(i) If that day is a Saturday, Sunday, or Federal holiday, the period is extended to the next business day.

(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.

(3) If the period is less than 7 days, any Saturday, Sunday, or Federal holiday that falls within the period is not included.

(b) Extensions of time. (1) No extension of time can be granted to file a request for a hearing under §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 part may be granted only upon a showing of good cause.

(i) To request an extension of time, a party must file a motion under §221.35 stating how much additional time is needed and the reasons for the request.

(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.

(iii) The ALJ may grant the extension only if:

(A) It would not unduly prejudice other parties; and

(B) It would not delay the decision under §221.60.

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§221.4   What deadlines apply to the trial-type hearing and alternatives processes?

(a) The following table summarizes the steps in the trial-type hearing process under subpart B of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part or by the ALJ, the deadlines as set by those other sections or by the ALJ control.

Process stepProcess dayMust generally be completedSee section
(1) NOAA files preliminary condition(s) or prescription(s) with FERC0221.20.
(2) License party files request for hearing30Within 30 days after NOAA files preliminary condition(s) or prescription(s) with FERC221.21(a).
(3) Any other license party files notice of intervention and response50Within 20 days after deadline for filing requests for hearing221.22(a).
(4) NOAA may file answer80Within 50 days after deadline for filing requests for hearing221.25(a).
(5) Office of Habitat Conservation refers case to ALJ office for hearing and issues referral notice to parties85Within 55 days after deadline for filing requests for hearing221.26(a).
(6) Parties may meet and agree to discovery (optional step)86-91Before deadline for filing motions seeking discovery221.41(a).
(7) ALJ office sends docketing notice, and ALJ issues notice setting date for initial prehearing conference90Within 5 days after effective date of referral notice221.30.
(8) Party files motion seeking discovery from another party92Within 7 days after effective date of referral notice221.41(d).
(9) Other party files objections to discovery motion or specific portions of discovery requests99Within 7 days after service of discovery motion221.41(e).
(10) Parties meet to discuss discovery and hearing schedule100-104Before date set for initial prehearing conference221.40(d).
(11) ALJ conducts initial prehearing conference105On or about 20th day after effective date of referral notice221.40(a).
(12) ALJ issues order following initial prehearing conference107Within 2 days after initial prehearing conference221.40(g).
(13) Party responds to interrogatories from another party as authorized by ALJ120-22Within 15 days after ALJ's order authorizing discovery during or following initial prehearing conference221.43(c).
(14) Party responds to requests for documents, etc., from another party as authorized by ALJ120-22Within 15 days after ALJ's order authorizing discovery during or following initial prehearing conference221.45(c).
(15) Parties complete all discovery, including depositions, as authorized by ALJ130Within 25 days after initial prehearing conference221.41(i).
(16) Parties file updated lists of witnesses and exhibits140Within 10 days after deadline for completion of discovery221.42(b).
(17) Parties file written direct testimony140Within 10 days after deadline for completion of discovery221.52(a).
(18) Parties complete prehearing preparation and ALJ commences hearing155Within 25 days after deadline for completion of discovery221.50(a).
(19) ALJ closes hearing record160When ALJ closes hearing221.58.
(20) Parties file post-hearing briefs175Within 15 days after hearing closes221.59(a).
(21) ALJ issues decision190Within 30 days after hearing closes221.60(a).

(b) The following table summarizes the steps in the alternatives process under subpart C of this part and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this part, the deadlines as set by those other sections control.

Process stepProcess dayMust generally be completedSee section
(1) NOAA files preliminary condition(s) or prescription(s) with FERC0221.20.
(2) License party files alternative condition(s) or prescription(s)30Within 30 days after NOAA files preliminary condition(s) or prescription(s) with FERC221.71(a).
(3) ALJ issues decision on any hearing request190Within 30 days after hearing closes (see previous table)221.60(a).
(4) License party files revised alternative condition(s) or prescription(s) if authorized210Within 20 days after ALJ issues decision221.72(a).
(5) NOAA files modified condition(s) or prescription(s) with FERC300Within 60 days after the deadline for filing comments on FERC's draft NEPA document221.73(a).

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