The U.S. departments of Agriculture, Interior and Commerce are jointly revising the procedures they established in November 2005 for expedited trial-type hearings required by the Energy Policy Act of 2005 related to resolution of disputed issues of material fact with respect to conditions or prescriptions developed for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission under the Federal Power Act.
The departments said in a lengthy notice to be published in the March 31 Federal Register that they are also revising the procedures for considering alternative conditions and prescriptions submitted by a party to a license proceeding. Comments will be taken for 60 days after the March 31 notice publication.
The departments are revising the interim final rules they published jointly in November 2005 to implement section 241 of the Energy Policy Act of 2005. That section created additional procedures applicable to conditions or prescriptions that a department develops for inclusion in a hydropower license issued by FERC. Specifically, section 241 amended sections 4 and 18 of the Federal Power Act (FPA) to provide for trial-type hearings on disputed issues of material fact with respect to a department’s conditions or prescriptions; and it added a new section 33 to the FPA, allowing parties to propose alternative conditions and prescriptions.
The departments are promulgating three substantially similar rules—one for each agency—with a common preamble. The rules and preamble address a few issues that were left open in the 2005 rulemaking, such as who has the burden of proof in a trial-type hearing and whether a trial-type hearing is an administrative remedy that a party must exhaust before challenging conditions or prescriptions in court. In addition, the rules and preamble respond to the public comments the department received on the 2005 rules, and they make a number of changes reflecting experience so far in implementing those rules.
Some of the highlights of the revised rules are:
- they clarify the availability of the trial-type hearing and alternatives processes in the situation where a department has previously reserved its authority to include conditions or prescriptions in a hydropower license, and it now decides to exercise that authority. The rules also extend the period of time for a party to request a hearing or submit an alternative in that situation.
- they extend a few of the deadlines in the 2005 rules, while not adopting some commenters’ recommendations that the departments significantly expand the hearing schedule. Specifically, parties are given five additional days to take each of the following steps: file a notice of intervention and response; update their witness and exhibit lists and submit written testimony following discovery; prepare for the hearing; and submit post-hearing briefs; and
- they allow for a stay, not to exceed 120 days, to facilitate settlement negotiations among the parties. As necessary, the parties would coordinate with FERC regarding any effect on the time frame established for the license proceeding.