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$590.209 Exchanges by displacement. the Assistant Secretary or the preAny importer of natural gas may
siding official. Answers shall be in enter into an exchange by displace
writing and shall detail each material ment agreement without the prior au
allegation of the motion being anthorization of the Assistant Secretary
swered. Answers shall state clearly and when the net effect of the exchange is
concisely the facts and legal authori
ties relied upon. no different than under the importer's existing authorization. An exchange by
(c) Any motion, except for motions displacement is an arrangement where
seeking intervention or requesting that by authorized imported volumes are
a conference, oral presentation or trialdisplaced by other gas for purposes of
type hearing be held, shall be deemed storage or flexibility. The term of the to have been denied, unless the Assistexchange agreement may not exceed
ant Secretary or presiding official acts five (5) years, the volumes imported
within thirty (30) days after the motion may not exceed the importer's existing
is filed. import authorization, and no actual natural gas may flow across the United
$590.303 Interventions and answers. States border under the terms of the (a) A state commission may interexchange agreement. Any importer vene in a proceeding under this part as who enters into an exchange agreement a matter of right and become a party pursuant to this section shall file with to the proceeding by filing a notice of FE within fifteen (15) days after the intervention no later than the date start up of the exchange, a written de fixed for filing motions to intervene in scription of the transaction, the exact the applicable FE notice or order. If volume of natural gas to be displaced, the period for filing the notice has exthe name of the purchaser, and the im pired, a state commission may be perport authorization under which the ex mitted to intervene by complying with change is being carried out.
the filing and other requirements ap
plicable to any other person seeking to Subpart C-Procedures become a party to the proceeding as
provided in this section. 8590.301 General.
(b) Any other person who seeks to beThe procedures of this subpart are come a party to a proceeding shall file applicable to proceedings conducted on a motion to intervene, which sets out all applications or other requested ac clearly and concisely the facts upon tions filed under this part. The Assist which the petitioner's claim of interest ant Secretary may conduct all aspects is based of the procedures of this subpart or (c) A motion to intervene shall state, may designate a presiding official pur to the extent known, the position suant to $590.314.
taken by the movant and the factual
and legal basis for such positions in $ 590.302 Motions and answers.
order to advise the parties and the As(a) Motions for any procedural or in sistant Secretary as to the specific terlocutory ruling shall set forth the issues of policy, fact, or law to be ruling or relief requested and state the raised or controverted. grounds and the statutory or other au (d) Motions to intervene may be filed thority relied upon. All written mo at any time following the filing of an tions shall comply with the filing re application, but no later than the date quirements of $590.103. Motions made fixed for filing such motions or notices during conferences, oral presentations in the applicable FE notice or order, or trial-type hearings may be stated unless a later date is permitted by the orally upon the record, unless the As Assistant Secretary for good cause sistant Secretary or the presiding offi shown and after considering the impact cial determines otherwise.
of granting the late motion of the pro(b) Any party may file an answer to ceeding. Each motion or notice shall any written motion within fifteen (15) list the names, titles, and mailing addays after the motion is filed, unless dresses of a maximum of two persons another period of time is established by for the official service list.
(e) Any party may file an answer to a ticular form is required. The protest motion to intervene, but such answer shall identify the person filing the proshall be made within fifteen (15) days test, the application or action being after the motion to intervene was filed, objected to, and provide a concise unless a later date is permitted by the statement of the reasons for the proAssistant Secretary for good cause test. shown. Answers shall be in writing. An (b) The filing of a protest, without swers shall detail each material allega also filing a motion to intervene or a tion of the motion to intervene being notice of intervention, shall not make answered and state clearly and con the person filing the protest a party to cisely the facts and legal authorities the proceeding relied upon. Failure to answer is (c) A protest shall be made part of deemed a waiver of any objection to
the official FE docket file in the prothe intervention. This paragraph does ceeding and shall be considered as a not prevent the Assistant Secretary
statement of position of the person filfrom ruling on a motion to intervene ing the protest, but not as establishing and issuing a final opinion and order in
the validity of any assertion upon accordance with $590.316 prior to the which the decision would be based. expiration of the fifteen (15) days in
(d) Protests shall be served on the apwhich a party has to answer a motion
plicant and all parties by the person to intervene.
filing the protest. If the person filing (f) If an answer in opposition to a mo
the protest is unable to provide service tion to intervene is timely filed or if on any person identified as a party to the motion to intervene is not timely
the proceeding after a good faith effort, filed, then the movant becomes a party
then FE shall effect service. However, only after the motion to intervene is when the parties are not known, servexpressly granted.
ice requirements may be met by serv(8) If no answer in opposition to a
ing a copy on the applicant and on FE motion to intervene is filed within the
as provided in $590.107(b). period of time prescribed in paragraph
(e) Protests may be filed at any time (e) of this section, the motion to inter
following the filing of an application, vene shall be deemed to be granted, un
but no later than the date fixed for filless the Assistant Secretary denies the
ing protests in the applicable FE notice motion in whole or in part or otherwise
or order, unless a later date is perlimits the intervention prior to the ex
mitted by the Assistant Secretary for piration of the time allowed in para
good cause shown. graph (e) for filing an answer to the
(f) Any party may file an answer to a motion to intervene. Where the motion
protest but such answer must be filed to intervene is deemed granted, the
within fifteen (15) days after the proparticipation of the intervenor shall be
test was filed, unless a later date is limited to matters affecting asserted
permitted by the Assistant Secretary rights and interests specifically set
for good cause shown. forth in the motion to intervene, and [54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. the admission of such intervenor to 19, 1990) party status shall not be construed as recognition by FE that the intervenor
8590.305 Informal discovery. might be aggrieved because of any The parties to a proceeding may conorder issued.
duct discovery through use of proce(h) In the event that a motion for dures such as written interrogatories late intervention is granted, an inter or production of documents. In revenor shall accept the record of the sponse to a motion by a party, the Asproceeding as it was developed prior to sistant Secretary or presiding official the intervention.
may determine the procedures to be
utilized for discovery if the parties $590.304 Protests and answers.
cannot agree on such procedures. (a) Any person objecting to an application filed under $590.201 of this part
$590.306 Subpoenas. or to any action taken by FE under (a) Subpoenas for the attendance of this part may file a protest. No par witnesses at a trial-type hearing or for
the production of documentary evidence may be issued upon the initiative of the Assistant Secretary or presiding official, or upon written motion of a party or oral motion of a party during a conference, oral presentation, or trial-type hearing, if the Assistant Secretary or presiding official determines that the evidence sought is relevant and material.
(b) Motions for the issuance of a subpoena shall specify the relevance, materiality, and scope of the testimony or documentary evidence sought, including, as to documentary evidence, specification to the extent possible of the documents sought and the facts to be proven by them, the issues to which they relate, and why the information or evidence was not obtainable through discovery procedures agreed upon by the parties.
(C) If service of a subpoena is made by a United States Marshal or a Deputy United States Marshal, service shall be evidenced by their return. If made by another person, that person shall affirm that service has occurred and file an affidavit to that effect with the original subpoena. A witness who is subpoenaed shall be entitled to witness fees as provided in $590.315(c).
address of the person taking the deposition.
(d) A witness whose testimony is taken by deposition shall be sworn in or shall affirm concerning the matter about which the witness has been called to testify before any questions are asked or testimony given. A witness deposed shall be entitled to witness fees as provided in $590.315(c).
(e) The moving party shall file the entire deposition with FE after it has been subscribed and certified. No portion of the deposition shall constitute a part of the record in the proceedings unless received in evidence, in whole or in part, by the Assistant Secretary or presiding official. $590.308 Admissions of facts.
(a) At any time prior to the end of a trial-type hearing, or, if there is no trial-type hearing, prior to
the issuance of a final opinion and order under $590.404, any party, the Assistant Secretary, or the presiding official may serve on any party a written request for admission of the truth of any matters at issue in the proceeding that relate to statements or opinions of fact or of the application of law to fact.
(b) A matter shall be considered admitted and conclusively established for the purposes of any proceeding in which a request for admission is served unless, within fifteen (15) days of such time limit established by the Assistant Secretary or presiding official, the party to whom the request is directed answers or objects to the request. Any answer shall specifically admit or deny the matter, or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny, unless the answering party states that, after reasonable inquiry, the answering party has been unable to obtain sufficient information to admit or deny. If an objection is made, the answering party shall state the reasons for the objection.
(c) If the Assistant Secretary or presiding official determines that an answer to a request for admission does not comply with the requirements of this section, the Assistant Secretary or
$ 590.307 Depositions.
(a) Upon motion filed by a party, the Assistant Secretary or presiding official may authorize the taking of testimony of any witness by deposition. Unless otherwise directed in the authorization issued, a witness being deposed may be examined regarding any matter which is relevant to the issues involved in the pending proceeding.
(b) Parties authorized to take a deposition shall provide written notice to the witness and all other parties at least ten (10) days in advance of the deposition unless such advance notice is waived by mutual agreement of the parties.
(c) The requesting motion and notice shall state the name and mailing address of the witness, delineate the subject matters on which the witness is expected to testify, state the reason why the deposition should be taken, indicate the time and place of the deposition, and provide the name and mailing
presiding official may order either that during a proceeding, the Assistant Secthe matter is admitted or that an retary or presiding official may on his amended answer be served.
or her own initiative determine to pro(d) A copy of all requests for admis vide additional procedures. sion and answers thereto shall be filed
[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. with FE in accordance with $590.103.
19, 1990) Copies of any documents referenced in the request shall be served with the re 8590.311 Conferences. quest unless they are known to be in
(a) Upon motion by a party, a conthe possession of the other parties.
ference of the parties may be convened (e) The Assistant Secretary or pre
to adjust or settle the proceedings, set siding official may limit the number of
schedules, delineate issues, stipulate requests for admission of facts in order
certain issues of fact or law, set proceto expedite a proceeding through elimi
dures, and consider other relevant matnation of duplicative requests.
ters where it appears that a conference
will materially advance the pro$590.309 Settlements.
ceeding. The Assistant Secretary or The parties may conduct settlement
presiding official may delineate the negotiations. If settlement negotia
issues which are to be considered and tions are conducted during a con may place appropriate limitations on ference, at the request of one of the the number of intervenors who may parties, the Assistant Secretary or pre participate, if two or more intervenors siding official may order that the dis have substantially like interests. cussions be off-the-record with no tran (b) A motion by a party for a conscript of such settlement negotiations ference shall include a specific showing being prepared for inclusion in the offi why a conference will materially adcial record of the proceeding. No offer vance the proceeding. of settlement, comment or discussion (c) Conferences shall be recorded, unby the parties with respect to an offer less otherwise ordered by the Assistant of settlement shall be subject to dis Secretary or presiding official, and the covery or admissible into evidence transcript shall be made a part of the against any parties who object to its official record of the proceeding and admission.
available to the public. $590.310 Opportunity for additional 8590.312 Oral presentations. procedures.
(a) Any party may file a motion reAny party may file a motion request questing an opportunity to make an ing additional procedures, including oral presentation of views, arguments, the opportunity to file written com including arguments of counsel, and ments, request written interrogatories data on any aspect of the proceeding. or other discovery procedures, or re The motion shall identify the substanquest that a conference, oral presen tial question of fact, law or policy at tation or trial-type hearing be held. issue and demonstrate that it is mateThe motion shall describe what type of rial and relevant to the merits of the procedure is requested and include the proceeding. The party may submit mainformation required by $8590.311, terial supporting the existence of sub590.312 and 590.313, as appropriate. Fail stantial issues. The Assistant Secure to request additional procedures retary or presiding official ordinarily within the time specified in the notice will grant a party's motion for an oral of application or in the notice of proce presentation, if the Assistant Secdure, if applicable, shall constitute a retary or presiding official determines waiver of that right unless the Assist that a substantial question of fact, law, ant Secretary for good cause shown or policy is at issue in the proceeding grants additional time for requesting and illumination of that question will additional procedures. If no time limit be aided materially by such an oral is specified in the notice or order, addi presentation. tional procedures may be requested at (b) The Assistant Secretary or preany time prior to the issuance of a siding official may require parties final opinion and order. At any time making oral presentations to file briefs
or other documents prior to the oral volving common questions of fact in presentation. The Assistant Secretary whole or in part for a trial-type hearor presiding official also may delineate ing. The Assistant Secretary or prethe issues that are to be considered at siding official may also place approthe oral presentation and place appro- priate limitations on the number of inpriate limitations on the number of in tervenors who may participate if two tervenors who may participate if two
or more intervenors have substantially or more intervenors have substantially like interests. like interests.
(d) The Assistant Secretary or pre(c) Oral presentations shall be con
siding official may make such rulings ducted in an informal manner with the
for trial-type hearings, including delinAssistant Secretary or the presiding of
eation of the issues and limitation of ficial and other decisional employees presiding as a panel. The panel may
cross-examination of a witness, as are question those parties making an oral
necessary to obtain a full and true dis
closure of the facts and to limit irrelepresentation. Cross-examination by the parties and other more formal proce
vant, immaterial, or unduly repetitious dures used in trial-type hearings will
evidence. not be available in oral presentations.
(e) At trial-type hearings, the AssistThe oral presentation may be, but need
ant Secretary or presiding official, or not be, made by legal counsel.
any other decisional employee directed (d) Oral presentations shall be re
by the Assistant Secretary or presiding corded, and the transcript shall be official, may call witnesses for testimade part of the official record of the mony or presenting exhibits that diproceeding and available to the public. rectly relate to a particular issue of
fact to be considered at the hearing. 8 590.313 Trial-type hearings.
The Assistant Secretary or presiding (a) Any party may file a motion for a official, or any other decisional emtrial-type hearing for the purpose of ployee directed by the Assistant Sectaking evidence on relevant and mate- retary or presiding official, may also rial issues of fact genuinely in dispute question witnesses offered by the parin the proceeding. The motion shall ties concerning their testimony. identify the factual issues in dispute (f) Trial-type hearings shall be reand the evidence that will be pre corded, and the transcript shall be sented. The party must demonstrate made part of the official record of the that the issues are genuinely in dis
proceeding and available to the public. pute, relevant and material to the decision and that a trial-type hearing is 8590.314 Presiding officials. necessary for a full and true disclosure
(a) The Assistant Secretary may desof the facts. The Assistant Secretary or presiding official shall grant a party's
ignate a presiding official to conduct motion for a trial-type hearing, if the
any stage of the proceeding, including Assistant Secretary or presiding offi- officiating at a conference, oral presencial determines that there is a relevant
tation, or trial-type hearing. The preand material factual issue genuinely in
siding official shall have the full audispute and that a trial-type hearing is
thority of the Assistant Secretary durnecessary for a full and true disclosure ing such proceedings. of the facts.
(b) A presiding official at a con(b) In trial-type hearings, the parties
ference, oral presentation, or trial-type shall have the right to be represented hearing shall have the authority to by counsel, to request discovery, to regulate the conduct of the proceeding present the direct and rebuttal testi including, but not limited to, determony of witnesses, to cross-examine mination of the issues to be raised durwitnesses under oath, and to present ing the course of the conference, oral documentary evidence.
presentation, or trial-type hearing, ad(c) The Assistant Secretary or pre- ministering oaths or affirmations, disiding official upon his or her own ini- recting discovery, ruling on objections tiative or upon the motion of any party to the presentation of testimony or exmay consolidate any proceedings in- hibits, receiving relevant and material