50 C.F.R. Subpart A—General Provisions
Title 50 - Wildlife and Fisheries
(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 prescriptions that the Department of Commerce, acting through the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NMFS) may develop for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission (FERC) under subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791 et seq. The authority to develop these prescriptions is granted by FPA section 18, 16 U.S.C. 811, which authorizes the Secretary of Commerce to prescribe fishways. (2) The hearing process under this part does not apply to recommendations that the Department of Commerce may submit to FERC under FPA section 10(a) or (j), 16 U.S.C. 803(a), (j). (3) The FPA also grants the Department of Agriculture and 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 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 fishway prescribed by NMFS under section 18. (c) Reservation of authority. Where NMFS notifies FERC that it is reserving its authority to develop one or more prescriptions during the term of the license, the hearing and alternatives processes under this part for such prescriptions will be available if and when NMFS exercises its reserved authority. NMFS will consult with FERC and notify the license parties regarding how to initiate the hearing process and alternatives process at that time. (d) Applicability. (1) This part applies to any hydropower license proceeding for which the license has not been issued as of November 17, 2005 and for which one or more preliminary prescriptions or prescriptions have been or are filed with FERC. (2) If NMFS has already filed one or more preliminary prescriptions or prescriptions as of November 17, 2005, the special applicability provisions of §221.4 also apply. 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 prescription that a license party other than NMFS or another Department develops as an alternative to a preliminary prescription from NMFS 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 hearings process for NMFS. 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 parts 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. NEPA document means an environmental assessment or environmental impact statement issued to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. 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. 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 301–713–4300. Facsimile number 301–713–4305. Party means, with respect to NMFS'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) NMFS, if it has filed a preliminary prescription; 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 a preliminary condition or prescription filed by a Department with FERC under 18 CFR 4.34(b), 4.34(i), or 5.22(a) 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. 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. (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 §221.24, 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. (a) Applicability. (1) This section applies to any case in which NMFS has filed a preliminary prescription or prescription with FERC before November 17, 2005 and FERC has not issued a license as of that date. (2) The deadlines in this section will apply in such a case, in lieu of any inconsistent deadline in other sections of this part. (b) Hearing process. (1) Any request for a hearing under §221.21 must be filed with the Office of Habitat Conservation by December 19, 2005. (2) Any notice of intervention and response under §221.22 must be filed by January 3, 2006. (3) Upon receipt of a hearing request under paragraph (b)(1) of this section, NMFS must do the following by March 17, 2006: (i) Comply with the requirements of §221.23; (ii) Determine jointly with any other Department that has received a hearing request, after consultation with FERC, a time frame for the hearing process and a corresponding deadline for NMFS to file an answer under §221.24; and (iii) Issue a notice to each party specifying the time frame for the hearing process, including the deadline for NMFS to file an answer. (c) Alternatives process. (1) Any alternative under §221.71 must be filed with the Office of Habitat Conservation by December 19, 2005. (2) Upon receipt of an alternative under paragraph (c)(1) of this section, if no hearing request is filed under paragraph (b)(1) of this section, NMFS must do the following by February 15, 2006: (i) Determine jointly with any other Department that has received a related alternative, after consultation with FERC, a time frame for the filing of a modified prescription under §221.72(b); and (ii) Issue a notice to the license party that has submitted the alternative, specifying the time frame for the filing of a modified prescription. (3) Upon receipt of an alternative under paragraph (c)(1) of this section, if a hearing request is also filed under paragraph (b)(1) of this section, NMFS will follow the provisions of paragraph (b)(3) of this section.
Title 50: Wildlife and Fisheries
PART 221—PRESCRIPTIONS IN FERC HYDROPOWER LICENSES
Subpart A—General Provisions
§ 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 pending applications?
