43 CFR Part 45 - Interior

Office of the Secretary, Interior

§ 45.1

PART 45—CONDITIONS AND PRESCRIPTIONS IN FERC HYDROPOWER LICENSES
Subpart A—General Provisions
Sec.
45.1 What is the purpose of this part, and to
what license proceedings does it apply?
45.2 What terms are used in this part?
45.3 How are time periods computed?
45.4 What deadlines apply to pending applications?

45.42 When must a party supplement or
amend information it has previously provided?
45.43 What are the requirements for written
interrogatories?
45.44 What are the requirements for depositions?
45.45 What are the requirements for requests for documents or tangible things
or entry on land?
45.46 What sanctions may the ALJ impose
for failure to comply with discovery?
45.47 What are the requirements for subpoenas and witness fees?
HEARING, BRIEFING, AND DECISION

Subpart B—Hearing Process
REPRESENTATIVES
45.10 Who may represent a party, and what
requirements apply to a representative?
DOCUMENT FILING AND SERVICE
45.11 What are the form and content requirements for documents under this
subpart?
45.12 Where and how must documents be
filed?
45.13 What are the requirements for service
of documents?
INITIATION OF HEARING PROCESS
45.20 What supporting information must a
bureau provide with its preliminary conditions or prescriptions?
45.21 How do I request a hearing?
45.22 How do I file a notice of intervention
and response?
45.23 When will hearing requests be consolidated?
45.24 How will the bureau respond to any
hearing requests?
45.25 What will DOI do with any hearing requests?
45.26 What regulations apply to a case referred for a hearing?
GENERAL PROVISIONS RELATED TO HEARINGS
45.30 What will the Hearings Division do
with a case referral?
45.31 What are the powers of the ALJ?
45.32 What happens if the ALJ becomes unavailable?
45.33 Under what circumstances may the
ALJ be disqualified?
45.34 What is the law governing ex parte
communications?
45.35 What are the requirements for motions?
PREHEARING CONFERENCES AND DISCOVERY
45.40 What are the requirements for prehearing conferences?
45.41 How may parties obtain discovery of
information needed for the case?

45.50 When and where will the hearing be
held?
45.51 What are the parties’ rights during the
hearing?
45.52 What are the requirements for presenting testimony?
45.53 How may a party use a deposition in
the hearing?
45.54 What are the requirements for exhibits, official notice, and stipulations?
45.55 What evidence is admissible at the
hearing?
45.56 What are the requirements for transcription of the hearing?
45.57 What is the standard of proof?
45.58 When will the hearing record close?
45.59 What are the requirements for posthearing briefs?
45.60 What are the requirements for the
ALJ’s decision?

Subpart C—Alternatives Process
45.70 How must documents be filed and
served under this subpart?
45.71 How do I propose an alternative?
45.72 What will the bureau do with a proposed alternative?
45.73 How will the bureau analyze a proposed alternative and formulate its
modified condition or prescription?
45.74 Has OMB approved the information
collection provisions of this subpart?
AUTHORITY: 16 U.S.C. 797(e), 811, 823d.
SOURCE: 70 FR 69829, Nov. 17, 2005, unless
otherwise noted.

Subpart A—General Provisions
§ 45.1 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

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§ 45.2

43 CFR Subtitle A (10–1–14 Edition)

mandatory conditions and prescriptions that the Department of the Interior (DOI) 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 the
Interior 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 recommendations that DOI 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 the authority to
develop mandatory conditions, and the
Department of Commerce the authority to develop mandatory prescriptions, for inclusion in a hydropower license. Where DOI 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 § 45.23:
(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 50 CFR 221.1 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 § 45.60(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 DOI under section 4(e) or a

fishway prescribed by DOI under section 18.
(c) Reservation of authority. Where
DOI notifies FERC that it is reserving
its authority to develop one or more
conditions or prescriptions during the
term of the license, the hearing and alternatives processes under this part for
such conditions or prescriptions will be
available if and when DOI exercises its
reserved authority. DOI 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 conditions, conditions, preliminary prescriptions, or prescriptions have been or are
filed with FERC.
(2) If DOI has already filed one or
more preliminary conditions, conditions, preliminary prescriptions, or
prescriptions as of November 17, 2005,
the special applicability provisions of
§ 45.4 also apply.
§ 45.2 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 a bureau or Department develops
as an alternative to a preliminary condition or prescription from a bureau or
Department, under FPA sec. 33, 16
U.S.C. 823d.
Bureau means any of the following
organizations within DOI that develops
a preliminary condition or prescription: the Bureau of Indian Affairs, Bureau of Land Management, Bureau of
Reclamation, Fish and Wildlife Service, or National Park Service.
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.

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Office of the Secretary, Interior

§ 45.3

Discovery means a prehearing process
for obtaining facts or information to
assist a party in preparing or presenting its case.
DOI means the Department of the Interior, including any bureau, unit, or
office of the Department, whether in
Washington, DC, or in the field.
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.
Hearings Division means the Departmental Cases Hearings Division, Office
of Hearings and Appeals, Department
of the Interior, 139 E. South Temple,
Suite 600, Salt Lake City, Utah 84111,
telephone 801–524–5344, facsimile number 801–524–5539.
Intervention means a process by
which a person who did not request a
hearing under § 45.21 can participate as
a party to the hearing under § 45.22.
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.
OEPC means the Office of Environmental Policy and Compliance, Department of the Interior, 1849 C Street,
NW., Mail Stop 2342, Washington, DC
20240, telephone 202–208–3891, facsimile
number 202–208–6970.
Party means, with respect to DOI’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 45.21; or

(ii) Either 7 CFR 1.621 or 50 CFR
221.21, with respect to a hearing process
consolidated under § 45.23;
(2) A license party that has filed a
timely notice of intervention and response under:
(i) Section 45.22; or
(ii) Either 7 CFR 1.622 or 50 CFR
221.22, with respect to a hearing process
consolidated under § 45.23;
(3) Any bureau that has filed a preliminary condition or prescription; and
(4) Any other Department that has
filed a preliminary condition or prescription, with respect to a hearing
process consolidated under § 45.23.
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
§ 45.10.
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 the
Interior 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.
§ 45.3

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.

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§ 45.4

43 CFR Subtitle A (10–1–14 Edition)

(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 § 45.21, a notice of
intervention and response under § 45.22,
an answer under § 45.24, 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 § 45.35
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 § 45.60.
§ 45.4 What deadlines apply to pending
applications?
(a) Applicability. (1) This section applies to any case in which a bureau has
filed a preliminary condition, condition, 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 § 45.21 must be filed
with OEPC by December 19, 2005.
(2) Any notice of intervention and response under § 45.22 must be filed by
January 3, 2006.
(3) Upon receipt of a hearing request
under paragraph (b)(1) of this section,
the bureau must do the following by
March 17, 2006:

(i) Comply with the requirements of
§ 45.23;
(ii) Determine jointly with any other
bureau or Department that has received a hearing request, after consultation with FERC, a time frame for
the hearing process and a corresponding deadline for the bureau to
file an answer under § 45.24; and
(iii) Issue a notice to each party
specifying the time frame for the hearing process, including the deadline for
the bureau to file an answer.
(c) Alternatives process. (1) Any alternative under § 45.71 must be filed with
OEPC 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, the bureau
must do the following by February 15,
2006:
(i) Determine jointly with any other
bureau or Department that has received a related alternative, after consultation with FERC, a time frame for
the filing of a modified condition or
prescription under § 45.72(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 condition or 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, the bureau will follow the provisions of paragraph (b)(3) of this section.

Subpart B—Hearing Process
REPRESENTATIVES
§ 45.10 Who may represent a party,
and what requirements apply to a
representative?
(a) Individuals. A party who is an individual may either represent himself
or herself in the hearing process under
this subpart or authorize an attorney
to represent him or her.
(b) Organizations. A party that is an
organization or other entity may authorize one of the following to represent it:
(1) An attorney;
(2) A partner, if the entity is a partnership;

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Office of the Secretary, Interior

§ 45.12

(3) An officer or full-time employee,
if the entity is a corporation, association, or unincorporated organization;
(4) A receiver, administrator, executor, or similar fiduciary, if the entity
is a receivership, trust, or estate; or
(5) An elected or appointed official or
an employee, if the entity is a federal,
state, tribal, county, district, territorial, or local government or component.
(c) Appearance. A representative
must file a notice of appearance. The
notice must:
(1) Meet the form and content requirements for documents under § 45.11;
(2) Include the name and address of
the person on whose behalf the appearance is made;
(3) If the representative is an attorney, include a statement that he or she
is a member in good standing of the bar
of the highest court of a state, the District of Columbia, or any territory or
commonwealth of the United States
(identifying which one); and
(4) If the representative is not an attorney, include a statement explaining
his or her authority to represent the
entity.
(d) Disqualification. The ALJ may disqualify any representative for misconduct or other good cause.
DOCUMENT FILING AND SERVICE
§ 45.11 What are the form and content
requirements for documents under
this subpart?
(a) Form. Each document filed in a
case under this subpart must:
(1) Measure 81⁄2 by 11 inches, except
that a table, chart, diagram, or other
attachment may be larger if folded to
81⁄2 by 11 inches and attached to the
document;
(2) Be printed on just one side of the
page;
(3) Be clearly typewritten, printed, or
otherwise reproduced by a process that
yields legible and permanent copies;
(4) Use 10 point font size or larger;
(5) Be double-spaced except for footnotes and long quotations, which may
be single-spaced;
(6) Have margins of at least 1 inch;
and
(7) Be bound on the left side, if
bound.

(b) Caption. Each document filed
under this subpart must begin with a
caption that sets forth:
(1) The name of the case under this
subpart and the docket number, if one
has been assigned;
(2) The name and docket number of
the license proceeding to which the
case under this subpart relates; and
(3) A descriptive title for the document, indicating the party for whom it
is filed and the nature of the document.
(c) Signature. The original of each
document filed under this subpart must
be signed by the representative of the
person for whom the document is filed.
The signature constitutes a certification by the representative that he or
she has read the document; that to the
best of his or her knowledge, information, and belief, the statements made
in the document are true; and that the
document is not being filed for the purpose of causing delay.
(d) Contact information. Below the
representative’s signature, the document must provide the representative’s
name, mailing address, street address
(if different), telephone number, facsimile number (if any), and electronic
mail address (if any).
§ 45.12 Where and how must documents be filed?
(a) Place of filing. Any documents relating to a case under this subpart
must be filed with the appropriate office, as follows:
(1) Before OEPC refers a case for
docketing under § 45.25, any documents
must be filed with OEPC. OEPC’s address, telephone number, and facsimile
number are set forth in § 45.2.
(2) OEPC will notify the parties of
the date on which it refers a case for
docketing under § 45.25. After that date,
any documents must be filed with:
(i) The Hearings Division, if DOI will
be conducting the hearing. The Hearings Division’s address, telephone number, and facsimile number are set forth
in § 45.2; or
(ii) The hearings component of or
used by another Department, if that
Department will be conducting the
hearing under § 45.25. The name, address, telephone number, and facsimile
number of the appropriate hearings

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§ 45.13

43 CFR Subtitle A (10–1–14 Edition)

component will be provided in the referral notice from OEPC.
(b) Method of filing. (1) A document
must be filed with the appropriate office under paragraph (a) of this section
using one of the following methods:
(i) By hand delivery of the original
document;
(ii) By sending the original document
by express mail or courier service for
delivery on the next business day; or
(iii) By sending the document by facsimile if:
(A) The document is 20 pages or less,
including all attachments;
(B) The sending facsimile machine
confirms that the transmission was
successful; and
(C) The original of the document is
sent by regular mail on the same day.
(2) Parties are encouraged, but not
required, to supplement any filing by
providing the appropriate office with
an electronic copy of the document on
diskette or compact disc.
(c) Date of filing. A document under
this subpart is considered filed on the
date it is received. However, any document received after 5 p.m. at the place
where the filing is due is considered
filed on the next regular business day.
(d) Nonconforming documents. If any
document submitted for filing under
this subpart does not comply with the
requirements of this subpart or any applicable order, it may be rejected. If
the defect is minor, the party may be
notified of the defect and given a
chance to correct it.
§ 45.13 What are the requirements for
service of documents?
(a) Filed documents. Any document related to a case under this subpart must
be served at the same time the document is delivered or sent for filing.
Copies must be served as follows:
(1) A complete copy of any request
for a hearing under § 45.21 must be
served on FERC and each license party,
using one of the methods of service in
paragraph (c) of this section.
(2) A complete copy of any notice of
intervention and response under § 45.22
must be:
(i) Served on FERC, the license applicant, any person who has filed a request for hearing under § 45.21, and any
bureau, using one of the methods of

service in paragraph (c) of this section;
and
(ii) Sent to any other license party
using regular mail.
(3) A complete copy of any other filed
document must be served on each
party, using one of the methods of
service in paragraph (c) of this section.
(b) Documents issued by the Hearings
Division or ALJ. A complete copy of any
notice, order, decision, or other document issued by the Hearings Division
or the ALJ under this subpart must be
served on each party, using one of the
methods of service in paragraph (c) of
this section.
(c) Method of service. Service must be
accomplished by one of the following
methods:
(1) By hand delivery of the document;
(2) By sending the document by express mail or courier service for delivery on the next business day; or
(3) By sending the document by facsimile if:
(i) The document is 20 pages or less,
including all attachments;
(ii) The sending facsimile machine
confirms that the transmission was
successful; and
(iii) The document is sent by regular
mail on the same day.
(d) Certificate of service. A certificate
of service must be attached to each
document filed under this subpart. The
certificate must be signed by the party’s representative and include the following information:
(1) The name, address, and other contact information of each party’s representative on whom the document was
served;
(2) The means of service, including
information
indicating
compliance
with paragraph (c)(3) or (c)(4) of this
section, if applicable; and
(3) The date of service.
INITIATION OF HEARING PROCESS
§ 45.20 What supporting information
must a bureau provide with its preliminary conditions or prescriptions?
(a) Supporting information. (1) When
any bureau files a preliminary condition or prescription with FERC, it
must include a rationale for the condition or prescription and an index to the

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Office of the Secretary, Interior

§ 45.22

bureau’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, the bureau must:
(i) File them with FERC at the time
it files the preliminary condition or
prescription;
(ii) Provide copies to the license applicant; and
(iii) In the case of a condition developed by the Bureau of Indian Affairs,
provide copies to the affected tribe.
(b) Service. In addition to serving a
copy of its preliminary condition or
prescription on each license party, the
bureau must provide a copy to OEPC if
and when a request for a hearing is
filed with respect to the preliminary
condition or prescription.
§ 45.21 How do I request a hearing?
(a) General. To request a hearing on
disputed issues of material fact with
respect to any condition or prescription filed by a bureau, you must:
(1) Be a license party; and
(2) File with OEPC a written request
for a hearing within 30 days after the
deadline for the Departments to file
preliminary conditions or prescriptions
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; and
(2) The following information with
respect to each issue:
(i) The specific factual statements
made or relied upon by the bureau
under § 45.20(a) that you dispute;
(ii) The basis for your opinion that
those factual statements are unfounded
or erroneous;
(iii) The basis for your opinion that
any factual dispute is material; and
(iv) 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.
(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.
§ 45.22 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 OEPC a notice of intervention and a written response to any
request for a hearing within 15 days
after the date of service of the request
for a hearing.
(2) A license party filing a notice of
intervention and response may not
raise issues of material fact beyond
those raised in the hearing request.
(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 § 45.21(b).
(1) If you agree with the information
provided by the bureau under § 45.20(a)
or by the requester under § 45.21(b),
your response may refer to the bureau’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
§ 45.21(b).
(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:

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§ 45.23

43 CFR Subtitle A (10–1–14 Edition)

(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 may
not exceed two pages.
(2) For each witness, the information
provided under paragraph (c)(1) of this
section may not exceed one page.
§ 45.23 When will hearing requests be
consolidated?
(a) Initial Department coordination.
Any bureau that has received a copy of
a hearing request must contact the
other bureaus and Departments within
10 days after the deadline for filing
hearing requests under § 45.21 and determine:
(1) Whether any of the other bureaus
or Departments has also filed a preliminary condition or prescription relating to the license with FERC; and
(2) If so, whether the other bureau or
Department has also received a hearing
request with respect to the preliminary
condition or prescription.
(b) Decision on consolidation. Within
25 days after the deadline for filing
hearing requests under § 45.21, any bureau or Department that has received a
hearing request must:
(1) Consult with any other bureau or
Department that has also received a
hearing request; and
(2) Decide jointly with the other bureau or Department:
(i) Whether to consolidate the cases
for hearing under paragraphs (c)(3)(ii)
through (c)(3)(iv) of this section; and
(ii) 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) Any or all of the following may be
consolidated for hearing, if the bureaus

and 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.
§ 45.24 How will the bureau respond to
any hearing requests?
(a) General. Within 45 days after the
deadline in § 45.21(a)(2), the bureau may
file with OEPC an answer to any hearing request under § 45.21.
(b) Content. If the bureau files an answer:
(1) For each of the numbered factual
issues listed under § 45.21(b)(1), the answer must explain the bureau’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 the bureau is willing to stipulate to the facts as alleged by the requester;
(ii) That the bureau believes the
issue listed by the requester is not a
factual issue, explaining the basis for
such belief;
(iii) That the bureau believes the
issue listed by the requester is not material, explaining the basis for such belief; or
(iv) That the bureau 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 § 45.23 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.

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(c) Witnesses and exhibits. The bureau’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, the bureau 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, the bureau
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 the bureau elects not to file an answer to a
hearing request:
(1) The bureau is deemed to agree
that the issues listed by the requester
are factual, material, and in dispute;
(2) The bureau may file a list of witnesses and exhibits with respect to the
request only as provided in § 45.42(b);
and
(3) The bureau 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 § 45.23.
§ 45.25 What will DOI do with any
hearing requests?
(a) Case referral. Within 5 days after
receipt of the bureau’s answer, OEPC
will refer the case for a hearing as follows:
(1) If the hearing is to be conducted
by DOI, OEPC will refer the case to the
Hearings Division.
(2) If the hearing is to be conducted
by another Department, OEPC will
refer the case to the hearings component used by that Department.
(b) Content. The case referral will
consist of the following:
(1) A copy of any preliminary condition or prescription under § 45.20;
(2) The original of any hearing request under § 45.21;
(3) The original of any notice of
intervention and response under § 45.22;

(4) The original of any answer under
§ 45.24; and
(5) An original referral notice under
paragraph (c) of this section.
(c) Notice. At the time OEPC 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 date on which OEPC is referring the case for docketing.
(d) Delivery and service. (1) OEPC
must refer the case to the appropriate
Department hearings component by
one of the methods identified in
§ 45.12(b)(1)(i) and (b)(1)(ii).
(2) OEPC must serve a copy of the referral notice on FERC and each party
to the hearing by one of the methods
identified in § 45.13(c)(1) and (c)(2).
§ 45.26 What regulations apply to a
case referred for a hearing?
(a) If OEPC refers the case to the
Hearings Division, the regulations in
this subpart will continue to apply to
the hearing process.
(b) If OEPC 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 OEPC refers the case to the Department of Commerce’s designated
ALJ office, the regulations at 50 CFR
221.1 et seq. will apply from that point
on.
GENERAL PROVISIONS RELATED TO
HEARINGS
§ 45.30 What will the Hearings Division
do with a case referral?
Within 5 days after issuance of the
referral notice under § 45.25(c), 7 CFR
1.625(c), or 50 CFR 221.25(c):
(a) The Hearings Division must:
(1) Docket the case;
(2) Assign an ALJ to preside over the
hearing process and issue a decision;
and

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43 CFR Subtitle A (10–1–14 Edition)

(3) Issue a docketing notice that informs the parties of the docket number
and the ALJ assigned to the case; and
(b) The ALJ must issue a notice setting the time, place, and method for
conducting an initial prehearing conference under § 45.40. This notice may
be combined with the docketing notice
under paragraph (a)(3) of this section.
§ 45.31 What are the powers of the
ALJ?
The ALJ will have all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process,
consistent with the requirements of
§ 45.60(a), including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas to the extent authorized by law;
(c) Rule on motions;
(d) Authorize discovery as provided
for in this subpart;
(e) Hold hearings and conferences;
(f) Regulate the course of hearings;
(g) Call and question witnesses;
(h) Exclude any person from a hearing or conference for misconduct or
other good cause;
(i) Issue a decision consistent with
§ 45.60(b) regarding any disputed issues
of material fact relating to any bureau’s or other Department’s condition
or prescription that has been referred
to the ALJ for hearing; and
(j) Take any other action authorized
by law.
§ 45.32 What happens if the ALJ becomes unavailable?
(a) If the ALJ becomes unavailable or
otherwise unable to perform the duties
described in § 45.31, the Hearings Division shall designate a successor.
(b) If a hearing has commenced and
the ALJ cannot proceed with it, a successor ALJ may do so. At the request
of a party, the successor ALJ may recall any witness whose testimony is
material and disputed, and who is
available to testify again without
undue burden. The successor ALJ may,
within his or her discretion, recall any
other witness.

§ 45.33 Under what circumstances may
the ALJ be disqualified?
(a) The ALJ may withdraw from a
case at any time the ALJ deems himself or herself disqualified.
(b) At any time before issuance of the
ALJ’s decision, any party may move
that the ALJ disqualify himself or herself for personal bias or other valid
cause.
(1) The party must file the motion
promptly after discovering facts or
other reasons allegedly constituting
cause for disqualification.
(2) The party must file with the motion an affidavit or declaration setting
forth the facts or other reasons in detail.
(c) The ALJ must rule upon the motion, stating the grounds for the ruling.
(1) If the ALJ concludes that the motion is timely and meritorious, he or
she must disqualify himself or herself
and withdraw from the case.
(2) If the ALJ does not disqualify
himself or herself and withdraw from
the case, the ALJ must continue with
the hearing process and issue a decision.
§ 45.34 What is the law governing ex
parte communications?
(a) Ex parte communications with
the ALJ or his or her staff are prohibited in accordance with 5 U.S.C. 554(d).
(b) This section does not prohibit ex
parte inquiries concerning case status
or procedural requirements, unless the
inquiry involves an area of controversy
in the hearing process.
§ 45.35 What are the requirements for
motions?
(a) General. Any party may apply for
an order or ruling on any matter related to the hearing process by presenting a motion to the ALJ. A motion
may be presented any time after the
Hearings Division issues a docketing
notice under § 45.30.
(1) A motion made at a hearing may
be stated orally on the record, unless
the ALJ directs that it be reduced to
writing.
(2) Any other motion must:
(i) Be in writing;

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(ii) Comply with the requirements of
this subpart with respect to form, content, filing, and service; and
(iii) Not exceed 10 pages.
(b) Content. (1) Each motion must
state clearly and concisely:
(i) Its purpose and the relief sought;
(ii) The facts constituting the
grounds for the relief sought; and
(iii) Any applicable statutory or regulatory authority.
(2) A proposed order must accompany
the motion.
(c) Response. Except as otherwise required by this part or by order of the
ALJ, any other party may file a response to a written motion within 10
days after service of the motion. When
a party presents a motion at a hearing,
any other party may present a response orally on the record.
(d) Reply. Unless the ALJ orders otherwise, no reply to a response may be
filed.
(e) Effect of filing. Unless the ALJ orders otherwise, the filing of a motion
does not stay the hearing process.
(f) Ruling. The ALJ will rule on the
motion as soon as practicable, either
orally on the record or in writing. He
or she may summarily deny any dilatory, repetitive, or frivolous motion.
PREHEARING CONFERENCES AND
DISCOVERY
§ 45.40 What are the requirements for
prehearing conferences?
(a) Initial prehearing conference. The
ALJ will conduct an initial prehearing
conference with the parties at the time
specified in the docketing notice under
§ 45.30, on or about the 20th day after
issuance of the referral notice under
§ 45.25(c).
(1) The initial prehearing conference
will be used:
(i) To identify, narrow, and clarify
the disputed issues of material fact and
exclude issues that do not qualify for
review as factual, material, and disputed;
(ii) To consider the parties’ motions
for discovery under § 45.41 and to set a
deadline for the completion of discovery;
(iii) To discuss the evidence on which
each party intends to rely at the hearing;

(iv) To set the deadline for submission of written testimony under § 45.52;
and
(v) To set the date, time, and place of
the hearing.
(2) The initial prehearing conference
may also be used:
(i) To discuss limiting and grouping
witnesses to avoid duplication;
(ii) To discuss stipulations of fact
and of the content and authenticity of
documents;
(iii) To consider requests that the
ALJ take official notice of public
records or other matters;
(iv) To discuss the submission of
written testimony, briefs, or other documents in electronic form; and
(v) To consider any other matters
that may aid in the disposition of the
case.
(b) Other conferences. The ALJ may in
his or her discretion direct the parties
to attend one or more other prehearing
conferences, if consistent with the need
to complete the hearing process within
90 days. Any party may by motion request a conference.
(c) Notice. The ALJ must give the
parties reasonable notice of the time
and place of any conference. A conference will ordinarily be held by telephone, unless the ALJ orders otherwise.
(d) Preparation. (1) Each party’s representative must be fully prepared for
a discussion of all issues properly before the conference, both procedural
and substantive. The representative
must be authorized to commit the
party that he or she represents respecting those issues.
(2) Before the date set for the initial
prehearing conference, the parties’ representatives must make a good faith
effort:
(i) To meet in person, by telephone,
or by other appropriate means; and
(ii) To reach agreement on discovery
and the schedule of remaining steps in
the hearing process.
(e) Failure to attend. Unless the ALJ
orders otherwise, a party that fails to
attend or participate in a conference,
after being served with reasonable notice of its time and place, waives all
objections to any agreements reached
in the conference and to any consequent orders or rulings.

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43 CFR Subtitle A (10–1–14 Edition)

(f) Scope. During a conference, the
ALJ may dispose of any procedural
matters related to the case.
(g) Order. Within 2 days after the conclusion of each conference, the ALJ
must issue an order that recites any
agreements reached at the conference
and any rulings made by the ALJ during or as a result of the conference.
§ 45.41 How may parties obtain discovery of information needed for
the case?
(a) General. By agreement of the parties or with the permission of the ALJ,
a party may obtain discovery of information to assist the party in preparing
or presenting its case. Available methods of discovery are:
(1) Written interrogatories;
(2) Depositions as provided in paragraph (h) of this section; and
(3) Requests for production of designated documents or tangible things
or for entry on designated land for inspection or other purposes.
(b) Criteria. Discovery may occur only
as agreed to by the parties or as authorized by the ALJ in a written order
or during a prehearing conference. The
ALJ may authorize discovery only if
the party requesting discovery demonstrates:
(1) That the discovery will not unreasonably delay the hearing process;
(2) That the information sought:
(i) Will be admissible at the hearing
or appears reasonably calculated to
lead to the discovery of admissible evidence;
(ii) Is not already in the license proceeding record or otherwise obtainable
by the party;
(iii) Is not cumulative or repetitious;
and
(iv) Is not privileged or protected
from disclosure by applicable law;
(3) That the scope of the discovery is
not unduly burdensome;
(4) That the method to be used is the
least burdensome method available;
(5) That any trade secrets or proprietary information can be adequately
safeguarded; and
(6) That the standards for discovery
under paragraphs (f) through (h) of this
section have been met, if applicable.
(c) Motions. A party may initiate discovery:

(1) Pursuant to an agreement of the
parties; or
(2) By filing a motion that:
(i) Briefly describes the proposed
method(s), purpose, and scope of the
discovery;
(ii) Explains how the discovery meets
the criteria in paragraphs (b)(1)
through (b)(6) of this section; and
(iii) Attaches a copy of any proposed
discovery request (written interrogatories, notice of deposition, or request
for production of designated documents
or tangible things or for entry on designated land).
(d) Timing of motions. A party must
file any discovery motion under paragraph (c)(2) of this section within 7
days after issuance of the referral notice under § 45.25(c).
(e) Objections. (1) A party must file
any objections to a discovery motion
or to specific portions of a proposed
discovery request within 7 days after
service of the motion.
(2) An objection must explain how, in
the objecting party’s view, the discovery sought does not meet the criteria in paragraphs (b)(1) through (b)(6)
of this section.
(f) Materials prepared for hearing. A
party generally may not obtain discovery of documents and tangible
things otherwise discoverable under
paragraph (b) of this section if they
were prepared in anticipation of or for
the hearing by or for another party’s
representative (including the party’s
attorney, expert, or consultant).
(1) If a party wants to discover such
materials, it must show:
(i) That it has substantial need of the
materials in preparing its own case;
and
(ii) That the party is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means.
(2) In ordering discovery of such materials when the required showing has
been made, the ALJ must protect
against disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney.
(g) Experts. Unless restricted by the
ALJ, a party may discover any facts
known or opinions held by an expert
concerning any relevant matters that

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are not privileged. Such discovery will
be permitted only if:
(1) The expert is expected to be a witness at the hearing; or
(2) The expert is relied on by another
expert who is expected to be a witness
at the hearing, and the party shows:
(i) That it has a compelling need for
the information; and
(ii) That it cannot practicably obtain
the information by other means.
(h) Limitations on depositions. (1) A
party may depose a witness only if the
party shows that the witness:
(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
(ii) Is unwilling to attend the hearing
voluntarily, and the party is unable to
compel the witness’s attendance at the
hearing by subpoena.
(2) Paragraph (h)(1)(ii) of this section
does not apply to any person employed
by or under contract with the party
seeking the deposition.
(3) A party may depose a senior Department employee only if the party
shows:
(i) That the employee’s testimony is
necessary in order to provide significant, unprivileged information that is
not available from any other source or
by less burdensome means; and
(ii) That the deposition would not
significantly interfere with the employee’s ability to perform his or her
government duties.
(i) Completion of discovery. All discovery must be completed within 25
days after the initial prehearing conference, unless the ALJ sets a different
deadline.
§ 45.42 When must a party supplement
or amend information it has previously provided?
(a) Discovery. A party must promptly
supplement or amend any prior response to a discovery request if it
learns that the response:
(1) Was incomplete or incorrect when
made; or
(2) Though complete and correct
when made, is now incomplete or incorrect in any material respect.
(b) Witnesses and exhibits. (1) Within 5
days after the date set for completion
of discovery, each party must file an
updated version of the list of witnesses

and exhibits required under §§ 45.21(c),
45.22(c), or 45.24(c).
(2) If a party wishes to include any
new witness or exhibit on its updated
list, it must provide an explanation of
why it was not feasible for the party to
include the witness or exhibit on its
list under §§ 45.21(c), 45.22(c), or 45.24(c).
(c) Failure to disclose. (1) A party that
fails to disclose information required
under §§ 45.21(c), 45.22(c), or 45.24(c), or
paragraphs (a) or (b) of this section,
will not be permitted to introduce as
evidence at the hearing testimony from
a witness or other information that it
failed to disclosed.
(2) Paragraph (c)(1) of this section
does not apply if the failure to disclose
was substantially justified or is harmless.
(3) Before or during the hearing, a
party may object to the admission of
evidence under paragraph (c)(1) of this
section.
(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1)
through (c)(3) of this section:
(i) The prejudice to the objecting
party;
(ii) The ability of the objecting party
to cure any prejudice;
(iii) The extent to which presentation
of the evidence would disrupt the orderly and efficient hearing of the case;
(iv) The importance of the evidence;
and
(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.
§ 45.43 What are the requirements for
written interrogatories?
(a) Motion. Except upon agreement of
the parties, a party wishing to propound interrogatories must file a motion under § 45.41(c).
(b) ALJ order. During or promptly
after the initial prehearing conference,
the ALJ will issue an order under
§ 45.41(b) with respect to any discovery
motion requesting the use of written
interrogatories. The order will:
(1) Grant the motion and approve the
use of some or all of the proposed interrogatories; or
(2) Deny the motion.
(c) Answers to interrogatories. Except
upon agreement of the parties, the

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43 CFR Subtitle A (10–1–14 Edition)

party to whom the proposed interrogatories are directed must file its answers to any interrogatories approved
by the ALJ within 15 days after
issuance of the order under paragraph
(b) of this section.
(1) Each approved interrogatory must
be answered separately and fully in
writing.
(2) The party or its representative
must sign the answers to interrogatories under oath or affirmation.
(d) Access to records. A party’s answer
to an interrogatory is sufficient when:
(1) The information may be obtained
from an examination of records, or
from a compilation, abstract, or summary based on such records;
(2) The burden of obtaining the information from the records is substantially the same for all parties;
(3) The answering party specifically
identifies the individual records from
which the requesting party may obtain
the information and where the records
are located; and
(4) The answering party provides the
requesting party with reasonable opportunity to examine the records and
make a copy, compilation, abstract, or
summary.
§ 45.44 What are the requirements for
depositions?
(a) Motion and notice. Except upon
agreement of the parties, a party wishing to take a deposition must file a motion under § 45.41(c). Any notice of deposition filed with the motion must
state:
(1) The time and place that the deposition is to be taken;
(2) The name and address of the person before whom the deposition is to be
taken;
(3) The name and address of the witness whose deposition is to be taken;
and
(4) Any documents or materials that
the witness is to produce.
(b) ALJ order. During or promptly
after the initial prehearing conference,
the ALJ will issue an order under
§ 45.41(b) with respect to any discovery
motion requesting the taking of a deposition. The order will:
(1) Grant the motion and approve the
taking of the deposition, subject to any

conditions or restrictions the ALJ may
impose; or
(2) Deny the motion.
(c) Arrangements. If the parties agree
to or the ALJ approves the taking of
the deposition, the party requesting
the deposition must make appropriate
arrangements for necessary facilities
and personnel.
(1) The deposition will be taken at
the time and place agreed to by the
parties or indicated in the ALJ’s order.
(2) The deposition may be taken before any disinterested person authorized to administer oaths in the place
where the deposition is to be taken.
(3) Any party that objects to the taking of a deposition because of the disqualification of the person before
whom it is to be taken must do so:
(i) Before the deposition begins; or
(ii) As soon as the disqualification
becomes known or could have been discovered with reasonable diligence.
(4) A deposition may be taken by
telephone conference call, if agreed to
by the parties or approved in the ALJ’s
order.
(d) Testimony. Each witness deposed
must be placed under oath or affirmation, and the other parties must be
given an opportunity for cross-examination.
(e) Representation of witness. The witness being deposed may have counsel or
another representative present during
the deposition.
(f) Recording and transcript. Except as
provided in paragraph (g) of this section, the deposition must be stenographically recorded and transcribed at
the expense of the party that requested
the deposition.
(1) Any other party may obtain a
copy of the transcript at its own expense.
(2) Unless waived by the deponent,
the deponent will have 3 days after receiving the transcript to read and sign
it.
(3) The person before whom the deposition was taken must certify the transcript following receipt of the signed
transcript from the deponent or expiration of the 3-day review period, whichever occurs first.

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(g) Video recording. The testimony at
a deposition may be recorded on videotape, subject to any conditions or restrictions that the parties may agree
to or the ALJ may impose, at the expense of the party requesting the recording.
(1) The video recording may be in
conjunction with an oral examination
by telephone conference held under
paragraph (c)(3) of this section.
(2) After the deposition has been
taken, the person recording the deposition must:
(i) Provide a copy of the videotape to
any party that requests it, at the requesting party’s expense; and
(ii) Attach to the videotape a statement identifying the case and the deponent and certifying the authenticity of
the video recording.
(h) Use of deposition. A deposition
may be used at the hearing as provided
in § 45.53.
§ 45.45 What are the requirements for
requests for documents or tangible
things or entry on land?
(a) Motion. Except upon agreement of
the parties, a party wishing to request
the production of designated documents or tangible things or entry on
designated land must file a motion
under § 45.41(c). A request may include
any of the following that are in the
possession, custody, or control of another party:
(1) The production of designated documents for inspection and copying,
other than documents that are already
in the license proceeding record;
(2) The production of designated tangible things for inspection, copying,
testing, or sampling; or
(3) Entry on designated land or other
property for inspection and measuring,
surveying, photographing, testing, or
sampling either the property or any
designated object or operation on the
property.
(b) ALJ order. During or promptly
after the initial prehearing conference,
the ALJ will issue an order under
§ 45.41(b) with respect to any discovery
motion requesting the production of
documents or tangible things or entry
on land for inspection, copying, or
other purposes. The order will:

(1) Grant the motion and approve the
use of some or all of the proposed requests; or
(2) Deny the motion.
(c) Compliance with order. Except
upon agreement of the parties, the
party to whom any approved request
for production is directed must permit
the approved inspection and other activities within 15 days after issuance of
the order under paragraph (a) of this
section.
§ 45.46 What sanctions may the ALJ
impose for failure to comply with
discovery?
(a) Upon motion of a party, the ALJ
may impose sanctions under paragraph
(b) of this section if any party:
(1) Fails to comply with an order approving discovery; or
(2) Fails to supplement or amend a
response to discovery under § 45.42(a).
(b) The ALJ may impose one or more
of the following sanctions:
(1) Infer that the information, testimony, document, or other evidence
withheld would have been adverse to
the party;
(2) Order that, for the purposes of the
hearing, designated facts are established;
(3) Order that the party not introduce
into evidence, or otherwise rely on to
support its case, any information, testimony, document, or other evidence:
(i) That the party improperly withheld; or
(ii) That the party obtained from another party in discovery;
(4) Allow another party to use secondary evidence to show what the information, testimony, document, or
other evidence withheld would have
shown; or
(5) Take other appropriate action to
remedy the party’s failure to comply.
§ 45.47 What are the requirements for
subpoenas and witness fees?
(a) Request for subpoena. (1) Except as
provided in paragraph (a)(2) of this section, any party may file a motion requesting the ALJ to issue a subpoena
to the extent authorized by law for the
attendance of a person, the giving of
testimony, or the production of documents or other relevant evidence during discovery or for the hearing.

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§ 45.50

43 CFR Subtitle A (10–1–14 Edition)

(2) A party may subpoena a senior
Department employee only if the party
shows:
(i) That the employee’s testimony is
necessary in order to provide significant, unprivileged information that is
not available from any other source or
by less burdensome means; and
(ii) That the employee’s attendance
would not significantly interfere with
the ability to perform his or her government duties.
(b) Service. (1) A subpoena may be
served by any person who is not a party
and is 18 years of age or older.
(2) Service must be made by hand delivering a copy of the subpoena to the
person named therein.
(3) The person serving the subpoena
must:
(i) Prepare a certificate of service
setting forth:
(A) The date, time, and manner of
service; or
(B) The reason for any failure of service; and
(ii) Swear to or affirm the certificate,
attach it to a copy of the subpoena,
and return it to the party on whose behalf the subpoena was served.
(c) Witness fees. (1) A party who subpoenas a witness who is not a party
must pay him or her the same fees and
mileage expenses that are paid witnesses in the district courts of the
United States.
(2) A witness who is not a party and
who attends a deposition or hearing at
the request of any party without having been subpoenaed to do so is entitled
to the same fees and mileage expenses
as if he or she had been subpoenaed.
However, this paragraph does not apply
to federal employees who are called as
witnesses by a bureau or other Department.
(d) Motion to quash. (1) A person to
whom a subpoena is directed may request by motion that the ALJ quash or
modify the subpoena.
(2) The motion must be filed:
(i) Within 5 days after service of the
subpoena; or
(ii) At or before the time specified in
the subpoena for compliance, if that is
less than 5 days after service of the
subpoena.
(3) The ALJ may quash or modify the
subpoena if it:

(i) Is unreasonable;
(ii) Requires evidence during discovery that is not discoverable; or
(iii) Requires evidence during a hearing that is privileged or irrelevant.
(e) Enforcement. For good cause
shown, the ALJ may apply to the appropriate United States District Court
for the issuance of an order compelling
the appearance and testimony of a witness or the production of evidence as
set forth in a subpoena that has been
duly issued and served.
HEARING, BRIEFING, AND DECISION
§ 45.50 When and where will the hearing be held?
(a) Except as provided in paragraph
(b) of this section, the hearing will be
held at the time and place set at the
initial prehearing conference under
§ 45.40, generally within 15 days after
the date set for completion of discovery.
(b) On motion by a party or on the
ALJ’s initiative, the ALJ may change
the date, time, or place of the hearing
if he or she finds:
(1) That there is good cause for the
change; and
(2) That the change will not unduly
prejudice the parties and witnesses.
§ 45.51 What are the parties’ rights
during the hearing?
Consistent with the provisions of this
subpart, each party has the following
rights during the hearing, as necessary
to assure full and accurate disclosure
of the facts:
(a) To present direct and rebuttal
evidence;
(b) To make objections, motions, and
arguments; and
(c) To cross-examine witnesses and to
conduct re-direct and re-cross examination as permitted by the ALJ.
§ 45.52 What are the requirements for
presenting testimony?
(a) Written direct testimony. Unless
otherwise ordered by the ALJ, all direct hearing testimony must be prepared and submitted in written form.
(1) Prepared written testimony must:
(i) Have line numbers inserted in the
left-hand margin of each page;
(ii) Be authenticated by an affidavit
or declaration of the witness;

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Office of the Secretary, Interior

§ 45.54

(iii) Be filed within 5 days after the
date set for completion of discovery,
unless the ALJ sets a different deadline; and
(iv) Be offered as an exhibit during
the hearing.
(2) Any witness submitting written
testimony must be available for crossexamination at the hearing.
(b) Oral testimony. Oral examination
of a witness in a hearing, including on
cross-examination or redirect, must be
conducted under oath and in the presence of the ALJ, with an opportunity
for all parties to question the witness.
(c) Telephonic testimony. The ALJ
may by order allow a witness to testify
by telephonic conference call.
(1) The arrangements for the call
must let each party listen to and speak
to the witness and each other within
the hearing of the ALJ.
(2) The ALJ will ensure the full identification of each speaker so the reporter can create a proper record.
(3) The ALJ may issue a subpoena
under § 45.47 directing a witness to testify by telephonic conference call.
§ 45.53 How may a party use a deposition in the hearing?
(a) In general. Subject to the provisions of this section, a party may use
in the hearing any part or all of a deposition taken under § 45.44 against any
party who:
(1) Was present or represented at the
taking of the deposition; or
(2) Had reasonable notice of the taking of the deposition.
(b) Admissibility. (1) No part of a deposition will be included in the hearing
record, unless received in evidence by
the ALJ.
(2) The ALJ will exclude from evidence any question and response to
which an objection:
(i) Was noted at the taking of the
deposition; and
(ii) Would have been sustained if the
witness had been personally present
and testifying at a hearing.
(3) If a party offers only part of a deposition in evidence:
(i) An adverse party may require the
party to introduce any other part that
ought in fairness to be considered with
the part introduced; and

(ii) Any other party may introduce
any other parts.
(c) Videotaped deposition. If the deposition was recorded on videotape and is
admitted into evidence, relevant portions will be played during the hearing
and transcribed into the record by the
reporter.
§ 45.54 What are the requirements for
exhibits, official notice, and stipulations?
(a) General. (1) Except as provided in
paragraphs (b) through (e) of this section, any material offered in evidence,
other than oral testimony, must be offered in the form of an exhibit.
(2) Each exhibit offered by a party
must be marked for identification.
(3) Any party who seeks to have an
exhibit admitted into evidence must
provide:
(i) The original of the exhibit to the
reporter, unless the ALJ permits the
substitution of a copy; and
(ii) A copy of the exhibit to the ALJ.
(b) Material not offered. If a document
offered as an exhibit contains material
not offered as evidence:
(1) The party offering the exhibit
must:
(i) Designate the matter offered as
evidence;
(ii) Segregate and exclude the material not offered in evidence, to the extent practicable; and
(iii) Provide copies of the entire document to the other parties appearing
at the hearing.
(2) The ALJ must give the other parties an opportunity to inspect the entire document and offer in evidence
any other portions of the document.
(c) Official notice. (1) At the request of
any party at the hearing, the ALJ may
take official notice of any matter of
which the courts of the United States
may take judicial notice, including the
public records of any Department
party.
(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.
(3) Any party requesting official notice of a fact after the conclusion of
the hearing must show good cause for
its failure to request official notice
during the hearing.

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§ 45.55

43 CFR Subtitle A (10–1–14 Edition)

(d) Stipulations. (1) The parties may
stipulate to any relevant facts or to
the authenticity of any relevant documents.
(2) If received in evidence at the
hearing, a stipulation is binding on the
stipulating parties.
(3) A stipulation may be written or
made orally at the hearing.
§ 45.55 What evidence is admissible at
the hearing?
(a) General. (1) Subject to the provisions of § 45.42(b), the ALJ may admit
any written, oral, documentary, or demonstrative evidence that is:
(i) Relevant, reliable, and probative;
and
(ii) Not privileged or unduly repetitious or cumulative.
(2) The ALJ may exclude evidence if
its probative value is substantially
outweighed by the risk of undue prejudice, confusion of the issues, or delay.
(3) Hearsay evidence is admissible.
The ALJ may consider the fact that
evidence is hearsay when determining
its probative value.
(4) The Federal Rules of Evidence do
not directly apply to the hearing, but
may be used as guidance by the ALJ
and the parties in interpreting and applying the provisions of this section.
(b) Objections. Any party objecting to
the admission or exclusion of evidence
shall concisely state the grounds. A
ruling on every objection must appear
in the record.
§ 45.56 What are the requirements for
transcription of the hearing?
(a) Transcript and reporter’s fees. The
hearing will be transcribed verbatim.
(1) The Hearings Division will secure
the services of a reporter and pay the
reporter’s fees to provide an original
transcript to the Hearings Division on
an expedited basis.
(2) Each party must pay the reporter
for any copies of the transcript obtained by that party.
(b) Transcript Corrections. (1) Any
party may file a motion proposing corrections to the transcript. The motion
must be filed within 5 days after receipt of the transcript, unless the ALJ
sets a different deadline.
(2) Unless a party files a timely motion under paragraph (b)(1) of this sec-

tion, the transcript will be presumed to
be correct and complete, except for obvious typographical errors.
(3) As soon as practicable after the
close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ
will issue an order making any corrections to the transcript that the ALJ
finds are warranted.
§ 45.57

What is the standard of proof?

The standard of proof is a preponderance of the evidence.
§ 45.58 When will the hearing record
close?
(a) The hearing record will close
when the ALJ closes the hearing, unless he or she directs otherwise.
(b) Evidence may not be added after
the hearing record is closed, but the
transcript may be corrected under
§ 45.56(b).
§ 45.59 What are the requirements for
post-hearing briefs?
(a) General. (1) Each party may file a
post-hearing brief within 10 days after
the close of the hearing, unless the
ALJ sets a different deadline.
(2) A party may file a reply brief only
if requested by the ALJ. The deadline
for filing a reply brief, if any, will be
set by the ALJ.
(3) The ALJ may limit the length of
the briefs to be filed under this section.
(b) Content. (1) An initial brief must
include:
(i) A concise statement of the case;
(ii) A separate section containing
proposed findings regarding the issues
of material fact, with supporting citations to the hearing record;
(iii) Arguments in support of the party’s position; and
(iv) Any other matter required by the
ALJ.
(2) A reply brief, if requested by the
ALJ, must be limited to any issues
identified by the ALJ.
(c) Form. (1) An exhibit admitted in
evidence or marked for identification
in the record may not be reproduced in
the brief.
(i) Such an exhibit may be reproduced, within reasonable limits, in an
appendix to the brief.

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§ 45.71

(ii) Any pertinent analysis of an exhibit may be included in a brief.
(2) If a brief exceeds 20 pages, it must
contain:
(i) A table of contents and of points
made, with page references; and
(ii) An alphabetical list of citations
to legal authority, with page references.
§ 45.60 What are the requirements for
the ALJ’s decision?
(a) Timing. The ALJ must issue a decision within the shorter of the following time periods:
(1) 30 days after the close of the hearing under § 45.58; or
(2) 90 days after issuance of the referral notice under § 45.25(c), 7 CFR
1.625(c), or 50 CFR 221.25(c).
(b) Content. (1) The decision must
contain:
(i) Findings of fact on all disputed
issues of material fact;
(ii) Conclusions of law necessary to
make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and
(iii) Reasons for the findings and conclusions.
(2) The ALJ may adopt any of the
findings of fact proposed by one or
more of the parties.
(3) The decision will not contain conclusions as to whether any preliminary
condition or prescription should be
adopted, modified, or rejected, or
whether any proposed alternative
should be adopted or rejected.
(c) Service. Promptly after issuing his
or her decision, the ALJ must:
(1) Serve the decision on each party
to the hearing; and
(2) Forward a copy of the decision to
FERC, along with the complete hearing
record, for inclusion in the license proceeding record.
(d) Finality. The ALJ’s decision under
this section will be final, with respect
to the disputed issues of material fact,
for any Department involved in the
hearing. To the extent the ALJ’s decision forms the basis for any condition
or prescription subsequently included
in the license, it may be subject to judicial review under 16 U.S.C. 825l(b).

Subpart C—Alternatives Process
§ 45.70 How must documents be filed
and served under this subpart?
(a) Filing. (1) A document under this
subpart must be filed using one of the
methods set forth in § 45.12(b).
(2) A document is considered filed on
the date it is received. However, any
document received after 5 p.m. at the
place where the filing is due is considered filed on the next regular business
day.
(b) Service. (1) Any document filed
under this subpart must be served at
the same time the document is delivered or sent for filing. A complete copy
of the document must be served on
each license party and FERC, using:
(i) One of the methods of service in
§ 45.13(c); or
(ii) Regular mail.
(2) The provisions of § 45.13(d) and (e)
regarding acknowledgment and certificate of service apply to service under
this subpart.
§ 45.71 How do I propose an alternative?
(a) General. To propose an alternative, you must:
(1) Be a license party; and
(2) File a written proposal with OEPC
within 30 days after the deadline for
the bureau to file preliminary conditions or prescriptions with FERC.
(b) Content. Your proposal must include:
(1) A description of the alternative,
in an equivalent level of detail to the
bureau’s preliminary condition or prescription;
(2) An explanation of how the alternative:
(i) If a condition, will provide for the
adequate protection and utilization of
the reservation; or
(ii) If a prescription, will be no less
protective than the fishway prescribed
by the bureau;
(3) An explanation of how the alternative, as compared to the preliminary
condition or prescription, will:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of
the project works for electricity production;

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§ 45.72

43 CFR Subtitle A (10–1–14 Edition)

(4) An explanation of how the alternative will affect:
(i) Energy supply, distribution, cost,
and use;
(ii) Flood control;
(iii) Navigation;
(iv) Water supply;
(v) Air quality; and
(vi) Other aspects of environmental
quality; and
(5) Specific citations to any scientific
studies, literature, and other documented information relied on to support your proposal, including any assumptions you are making (e.g., regarding the cost of energy or the rate
of inflation). If any such document is
not already in the license proceeding
record, you must provide a copy with
the proposal.
§ 45.72 What will the bureau do with a
proposed alternative?
If any license party proposes an alternative to a preliminary condition or
prescription under § 45.71(a)(1), the bureau must do the following within 60
days after the deadline for filing comments to FERC’s NEPA document
under 18 CFR 5.25(c):
(a) Analyze the alternative under
§ 45.73; and
(b) File with FERC:
(1) Any condition or prescription that
the bureau adopts as its modified condition or prescription; and
(2) Its analysis of the modified condition or prescription and any proposed
alternatives under § 45.73(c).
§ 45.73 How will the bureau analyze a
proposed alternative and formulate
its modified condition or prescription?
(a) In deciding whether to adopt a
proposed alternative, the bureau must
consider evidence and supporting material provided by any license party or
otherwise available to the bureau, including:
(1) Any evidence on the implementation costs or operational impacts for
electricity production of the proposed
alternative;
(2) Any comments received on the bureau’s preliminary condition or prescription;
(3) Any ALJ decision on disputed
issues of material fact issued under

§ 45.60 with respect to the preliminary
condition or prescription;
(4) Comments received on any draft
or final NEPA documents; and
(5) The license party’s proposal under
§ 45.71.
(b) The bureau must adopt a proposed
alternative if the bureau determines,
based on substantial evidence provided
by any license party or otherwise
available to the bureau, that the alternative:
(1) Will, as compared to the bureau’s
preliminary condition or prescription:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of
the project works for electricity production; and
(2) Will:
(i) If a condition, provide for the adequate protection and utilization of the
reservation; or
(ii) If a prescription, be no less protective than the bureau’s preliminary
prescription.
(c) When the bureau files with FERC
the condition or prescription that the
bureau adopts as its modified condition
or prescription under §§ 45.72(b), it must
also file:
(1) A written statement explaining:
(i) The basis for the adopted condition or prescription; and
(ii) If the bureau is not adopting any
alternative, its reasons for not doing
so; and
(2) Any study, data, and other factual
information relied on that is not already part of the licensing proceeding
record.
(d) The written statement under
paragraph (c)(1) of this section must
demonstrate that the bureau gave
equal consideration to the effects of
the condition or prescription adopted
and any alternative not adopted on:
(1) Energy supply, distribution, cost,
and use;
(2) Flood control;
(3) Navigation;
(4) Water supply;
(5) Air quality; and
(6) Preservation of other aspects of
environmental quality.

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Office of the Secretary, Interior

Pt. 46

§ 45.74 Has OMB approved the information collection provisions of this
subpart?
Yes. This rule contains provisions
that would collect information from
the public. It therefore requires approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C.
3501 et seq. (PRA). According to the
PRA, a Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number that
indicates OMB approval. OMB has reviewed the information collection in
this rule and approved it under OMB
control number 1094–0001.

PART 46—IMPLEMENTATION OF THE
NATIONAL
ENVIRONMENTAL
POLICY ACT OF 1969
Subpart A—General Information
Sec.
46.10
46.20
46.30

46.205 Actions categorically excluded from
further NEPA review.
46.210 Listing of Departmental categorical
exclusions.
46.215 Categorical exclusions: Extraordinary
circumstances.
46.220 How to designate lead agencies.
46.225 How to select cooperating agencies.
46.230 Role of cooperating agencies in the
NEPA process.
46.235 NEPA scoping process.
46.240 Establishing time limits for the
NEPA process.

Subpart D—Environmental Assessments
46.300 Purpose of an environmental assessment and when it must be prepared.
46.305 Public involvement in the environmental assessment process.
46.310 Contents of an environmental assessment.
46.315 How to format an environmental assessment.
46.320 Adopting environmental assessments
prepared by another agency, entity, or
person.
46.325 Conclusion of the environmental assessment process.

Purpose of this part.
How to use this part.
Definitions.

Subpart E—Environmental Impact
Statements

Subpart B—Protection and Enhancement
of Environmental Quality
46.100 Federal action subject to the procedural requirements of NEPA.
46.105 Using a contractor to prepare environmental documents.
46.110 Incorporating consensus-based management.
46.115 Consideration of past actions in analysis of cumulative effects.
46.120 Using existing environmental analyses prepared pursuant to NEPA and the
Council on Environmental Quality regulations.
46.125 Incomplete or unavailable information.
46.130 Mitigation measures in analyses.
46.135 Incorporation of referenced documents into NEPA analysis.
46.140 Using tiered documents.
46.145 Using adaptive management.
46.150 Emergency responses.
46.155 Consultation, coordination, and cooperation with other agencies.
46.160 Limitations on actions during the
NEPA analysis process.
46.170 Environmental effects abroad of
major Federal actions.

Subpart C—Initiating the NEPA Process
46.200

46.400 Timing of environmental impact
statement development.
46.405 Remaining within page limits.
46.415 Environmental
impact
statement
content, alternatives, circulation and filing requirements.
46.420 Terms used in an environmental impact statement.
46.425 Identification of the preferred alternative in an environmental impact statement.
46.430 Environmental review and consultation requirements.
46.435 Inviting comments.
46.440 Eliminating duplication with State
and local procedures.
46.445 Preparing a legislative environmental impact statement.
46.450 Identifying the environmentally preferable alternatives.
AUTHORITY: 42 U.S.C. 4321 et seq. (The National Environmental Policy Act of 1969, as
amended); Executive Order 11514, (Protection
and Enhancement of Environmental Quality
(March 5, 1970, as amended by Executive
Order 11991, May 24, 1977)); 40 CFR parts 1500–
1508 (43 FR 55978) (National Environmental
Policy Act, Implementation of Procedural
Provisions).
SOURCE: 73 FR 61314, Oct. 15, 2008, unless
otherwise noted.

Applying NEPA early.

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