Proposed Revised Rules of Procedure and Opportunity for Public Review and Comment, 19262-19273 [2018-09085]

Agencies

• Bonneville Power Administration
• DEPARTMENT OF ENERGY

[Federal Register Volume 83, Number 85 (Wednesday, May 2, 2018)]
[Notices]
[Pages 19262-19273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09085]


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DEPARTMENT OF ENERGY

Bonneville Power Administration

[BPA File No.: RP-18]


Proposed Revised Rules of Procedure and Opportunity for Public 
Review and Comment

AGENCY: Bonneville Power Administration (BPA or Bonneville), Department 
of Energy (DOE).

ACTION: Notice of proposed revised rules of procedure.

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SUMMARY: Bonneville is proposing to revise the rules of procedure that 
govern its hearings conducted pursuant to section 7(i) of the Pacific 
Northwest Electric Power Planning and Conservation Act (Northwest Power 
Act), 16 U.S.C. 839e(i).

DATES: Anyone wishing to comment on the proposed revised rules of 
procedure must file such comments no later than 5:00 p.m. PDT on June 
4, 2018.

ADDRESSES: Comments should be submitted through Bonneville's website at 
www.bpa.gov/comment. Comments may also be submitted to BPA Public 
Involvement, Bonneville Power Administration, P.O. Box 14428, Portland, 
Oregon 97293. Bonneville requests that all comments contain the 
designation RP-18 in the subject line.

FOR FURTHER INFORMATION CONTACT: Heidi Helwig, DKE-7, BPA 
Communications, Bonneville Power Administration, P.O. Box 3621, 
Portland, Oregon 97208; by phone toll free at 1-800-622-4520; or by 
email to [email protected].
    Responsible Official: Mary K. Jensen, Executive Vice President, 
General Counsel, is the official responsible for the development of 
Bonneville's rules of procedure.

SUPPLEMENTARY INFORMATION: 

Table of Contents

Part I Introduction and Background
Part II Summary of Proposed Revised Rules of Procedure
Part III Proposed Revised Rules of Procedure

Part I--Introduction and Background

    The Northwest Power Act provides that Bonneville must establish and 
periodically review and revise its rates so that they recover, in 
accordance with sound business principles, the costs associated with 
the acquisition, conservation, and transmission of electric power, 
including amortization of the Federal investment in the Federal 
Columbia River Power System over a reasonable number of years, and 
Bonneville's other costs and expenses. 16 U.S.C. 839e(a)(1). Section 
7(i) of the Northwest Power Act, 16 U.S.C. 839e(i), requires that 
Bonneville's rates be established according to certain procedures, 
including notice of the proposed rates; one or more hearings conducted 
as expeditiously as practicable by a hearing officer; opportunity for 
both oral presentation and written submission of views, data, 
questions, and arguments related to the proposed rates; and a decision 
by the Administrator based on the record.
    In addition, section 212(i)(2)(A) of the Federal Power Act, 16 
U.S.C. 824k(i)(2)(A), provides in part that the Administrator may 
conduct a section 7(i) hearing to determine the terms and conditions 
for transmission service on the Federal Columbia River Transmission 
System under certain circumstances. Such a hearing must adhere to the 
procedural requirements of paragraphs (1) through (3) of section 7(i) 
of the Northwest Power Act, except that the hearing officer makes a 
recommended decision to the Administrator before the Administrator's 
final decision.
    Bonneville last revised its procedures to govern hearings under 
section 7(i) of the Northwest Power Act in 1986. See ``Procedures 
Governing Bonneville Power Administration Rate Hearings,'' 51 Federal 
Register 7611 (1986). Since the establishment of those procedures, 
there have been significant advancements in the technology available to 
conduct the hearings. The proposed revised rules of procedure 
incorporate changes to reflect the manner in which Bonneville has 
applied these advancements. In addition, through conducting numerous 
hearings over the past few decades, Bonneville has gained insight 
regarding the strengths and weaknesses of the current procedures. The 
proposed revisions incorporate changes to make the hearings more 
efficient and procedures that were regularly adopted by order of the 
hearing officer in

[[Page 19263]]

previous hearings. Finally, the proposed revisions explicitly provide 
that the rules apply to any proceeding under section 212(i)(2)(A) of 
the Federal Power Act (``section 212 proceedings'').
    In order to encourage public involvement and assist Bonneville in 
the development of the proposed revised procedures, Bonneville met with 
customers and other interested parties on February 13, 2018, in 
Portland, Oregon, to discuss how the current rules might be revised. 
Bonneville also solicited written comments over a two-week period 
ending February 28, 2018. After reviewing the comments, Bonneville 
incorporated a number of revisions to its proposed rules.
    Although rules of agency procedure are exempt from notice and 
comment rulemaking requirements under the Administrative Procedure Act, 
5 U.S.C. 553(b)(3)(A), Bonneville is nevertheless publishing notice of 
the proposed revisions to its procedural rules in the Federal Register 
to promote transparency and public participation. Bonneville will 
accept written comments on the proposed revisions until the deadline 
stated above. After considering the written comments, Bonneville will 
publish the final rules in Federal Register later this year.

Part II--Summary of Proposed Revised Rules of Procedure

    The statements below provide general summaries of some of the 
proposed revisions in each section of the rules.

Section 1010.1 General Provisions

     The proposed revisions specify that the rules apply to 
wholesale power and transmission rate case proceedings and section 212 
proceedings.
     A provision has been added to clarify that the rules do 
not establish substantive standards for the Administrator's final 
decisions.

Section 1010.2 Definitions

     Various definitions were added or revised in this section.

Section 1010.3 Hearing Officer

     A provision has been added to clarify that parties should 
contact the hearing clerk with procedural questions rather than 
Bonneville counsel or rates staff.
     A provision has been added to recognize that the hearing 
officer can establish special rules of practice that are consistent 
with the proposed rules.

Section 1010.4 Initiation of Proceeding

     A provision has been added to require the Federal Register 
notice initiating the proceeding to include the proposed new or revised 
terms and conditions of transmission service for section 212 
proceedings.
     A provision has been added to require the Federal Register 
notice to include procedures for requesting access to the secure 
website for purposes of filing petitions to intervene.
     A provision has been added to require the Federal Register 
notice to state that the scope of a proceeding may include new issues 
that arise as a result of circumstances or events occurring outside of 
the proceeding.

Section 1010.5 Ex Parte Communications

     Proposed revisions more clearly prohibit ex parte 
communications with the hearing officer.
     A provision has been added to clarify that communications 
between the hearing officer and the hearing clerk (or other staff 
providing administrative support to the hearing officer) are not ex 
parte.
     The procedures for addressing ex parte communications have 
been revised to provide that written ex parte communications and 
written summaries of oral ex parte communications will be posted on 
Bonneville's website rather than being made available in Bonneville's 
Public Involvement Office.

Section 1010.6 Intervention

     The procedures for intervention were modified to provide 
prospective intervenors access to the secure website before filing a 
petition to intervene. Once access has been granted, a petition to 
intervene can be filed through the secure website.

Section 1010.7 Joint Parties

     A provision has been added to encourage parties with 
similar interests to establish joint parties and describes how to form 
joint parties.

Section 1010.8 Participants

     A provision has been added to describe the manner in which 
members of the general public, who are not parties, can submit 
comments.

Section 1010.9 Prehearing Conference

     A provision has been added to recognize that the hearing 
officer will hold a prehearing conference to adopt a procedural 
schedule and any special rules of practice that are consistent with the 
proposed rules.

Section 1010.10 Filing and Service of Documents

     Provisions have been added to require that litigants file 
all documents through the secure website and that such filings will 
constitute service on all parties.

Section 1010.11 Pleadings

     Provisions were added to specify the types of pleadings, 
establish format and content requirements, and clarify rights and 
procedures for filing responsive pleadings.
     Procedures have been added to govern interlocutory appeal 
of an order of the hearing officer to the Administrator.

Section 1010.12 Clarification Sessions and Data Requests

     The scope of permissible data requests has been revised. 
Data requests must seek information that is relevant to an issue in the 
proceeding and proportional to the needs of the case according to a 
variety of factors listed in the rule.
     Provisions have been added to require litigants to be 
reasonable in the number and breadth of data requests.
     Provisions have been added to govern the treatment of 
information that is privileged, commercially sensitive, or pertains to 
critical electric infrastructure.
     Provisions have been added to govern the process for 
filing and responding to motions to compel. In deciding a motion to 
compel, the hearing officer will consider a variety of factors, 
including the potential impact of the decision on completing the 
proceeding according to the procedural schedule.

Section 1010.13 Prefiled Testimony and Exhibits

     The proposed revisions establish format and content 
requirements for prefiled testimony and exhibits and specify that 
litigants will have the opportunity to rebut the direct testimony of 
other litigants.
     The proposed revisions clarify that materials incorporated 
into prefiled testimony by reference or by providing a link to a 
website will not be considered part of the record even if the prefiled 
testimony is accepted into the record. Any materials that a litigant 
wants included in the record should be submitted as an exhibit and 
subsequently moved in to evidence.
     The proposed revisions specify that prefiled testimony and 
exhibits are not part of the record until they have been admitted into 
evidence by the hearing officer and provide procedures for moving those 
materials into the record.

Section 1010.14 Cross-Examination

     The proposed revisions specify the procedures for filing 
cross-examination

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statements and provide that witnesses generally will be cross-examined 
as a panel.
     The proposed revisions clarify that witnesses are not 
required to perform calculations on the stand or answer questions about 
calculations that they did not perform.
     Friendly cross-examination is prohibited, except that 
counsel for a litigant with a position that is not adverse to the 
witnesses may seek leave from the hearing officer to ask limited 
follow-up questions of a witness after any redirect testimony. Any 
follow-up questions are limited to the scope of the cross-examination.
     The proposed revisions broadly define cross-examination 
exhibits and require litigants to file all cross-examination exhibits 
for a witness two business days before the witness is scheduled to 
appear.
     Litigants must provide physical copies of cross-
examination exhibits at the beginning of cross-examination.

Section 1010.15 Stipulations

     A provision has been added to provide that the hearing 
officer may admit into evidence stipulations on any issue of fact.

Section 1010.16 Official Notice

     A provision has been added to recognize that the hearing 
officer or the Administrator may take official notice of certain 
matters, and provides guidelines for litigants requesting official 
notice.

Section 1010.17 Briefs

     The proposed revisions include a standard outline and 
format for briefs in order to help Bonneville identify parties' 
specific issues and recommendations and prepare the records of decision 
in a more orderly manner.
     The briefing provisions specify that Bonneville may file 
briefs in section 212 proceedings and that the Administrator may allow 
additional briefing opportunities in such proceedings.

Section 1010.18 Oral Argument

     Provisions have been added to permit oral argument and 
establish procedures for providing notice of intent to present oral 
argument.

Section 1010.19 Telephone Conferences

     A provision has been added to provide guidelines for 
telephone conferences.

Section 1010.20 Hearing Officer's Recommended Decision

     A provision has been added to address the hearing 
officer's recommended decision in section 212 proceedings.

Section 1010.21 Final Record of Decision

     A provision has been added to note that the Administrator 
will issue a Final Record of Decision in all ratemaking and section 212 
proceedings.

Section 1010.22 Expedited Proceedings

     Expedited proceedings are defined as extending 90-120 days 
from the date the Federal Register Notice is published.

Part III--Proposed Revised Rules of Procedure

Bonneville Power Administration
United States Department of Energy
Rules of Procedure
Section 1010.1 General Provisions
    (a) General rule of applicability
    (b) Exceptions to general rule of applicability
    (c) Effective date
    (d) Scope of rules
    (e) Waiver
    (f) Computation of time
Section 1010.2 Definitions
Section 1010.3 Hearing Officer
Section 1010.4 Initiation of Proceeding
Section 1010.5 Ex Parte Communications
    (a) General rule
    (b) Exceptions
    (c) Application
    (d) Notice of meetings
    (e) Written communications
    (f) Oral communications
    (g) Notice and opportunity for rebuttal
Section 1010.6 Intervention
    (a) Filing
    (b) Contents
    (c) Time
    (d) Opposition
Section 1010.7 Joint Parties
Section 1010.8 Participants
Section 1010.9 Prehearing Conference
Section 1010.10 Filing and Service
Section 1010.11 Pleadings
    (a) Types of pleadings
    (b) Content
    (c) Format
    (d) Answers to pleadings
    (e) Replies to answers
    (f) Interlocutory appeal
Section 1010.12 Clarification Sessions and Data Requests
    (a) Clarification sessions
    (b) Data Requests and responses
    (c) Information that is attorney-client privileged or attorney 
work product
    (d) Commercially Sensitive Information and CEII
    (e) Disputes regarding responses to Data Requests
    (f) Sanctions
    (g) Moving responses to Data Requests into Evidence
Section 1010.13 Prefiled Testimony and Exhibits
    (a) General rule
    (b) Items by reference
    (c) Moving Prefiled Testimony and Exhibits into Evidence
    (d) Motions to strike
Section 1010.14 Cross-Examination
Section 1010.15 Stipulations
Section 1010.16 Official Notice
Section 1010.17 Briefs
    (a) General rule
    (b) Initial brief
    (c) Brief on exceptions
    (d) Additional briefing rule for proceedings pursuant to Section 
1010.1(a)(2)
    (e) Optional brief and memorandum of law
    (f) Waiver of issues or arguments
Section 1010.18 Oral Argument
Section 1010.19 Telephone Conferences
Section 1010.20 Hearing Officer's Recommended Decision
Section 1010.21 Final Record of Decision
Section 1010.22 Expedited Proceedings
    (a) General rule
    (b) Extensions
Attachment A--Brief Template

Section 1010.1 General Provisions

    (a) General rule of applicability. These rules apply to all 
proceedings conducted under the procedural requirements contained in 
Section 7(i) of the Pacific Northwest Electric Power Planning and 
Conservation Act (Northwest Power Act), 16 U.S.C. 839e(i), for the 
purpose of:
    (1) Revising or establishing rates under Section 7 of the Northwest 
Power Act;
    (2) revising or establishing terms and conditions of general 
applicability for transmission service on the Federal Columbia River 
Transmission System pursuant to Section 212(i)(2)(A) of the Federal 
Power Act, 16 U.S.C. 824k(i)(2)(A); or
    (3) addressing other matters the Administrator determines are 
appropriate for such rules.
    (b) Exceptions to general rule of applicability. These rules do not 
apply to:
    (1) Proceedings regarding implementation of rates or formulae 
previously adopted by the Administrator and approved, on either an 
interim or final basis, by the Federal Energy Regulatory Commission;
    (2) Proceedings required by statute or by contract, in which the 
Administrator does not propose either (a) a new rate, formula rate, 
discount, credit, surcharge or other rate change, or (b) any new terms 
and conditions of transmission service or revisions thereto; or
    (3) Contract negotiations unless otherwise provided by paragraph 
(a) of this section.
    (c) Effective date. These rules will become effective 30 days after 
publication of the final rules in the Federal Register.
    (d) Scope of rules. These rules are intended to establish 
procedures and

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processes for all proceedings described in paragraph (a) of this 
section. These rules do not establish substantive standards for the 
Administrator's final decisions on issues in such proceedings.
    (e) Waiver. To the extent permitted by law, the Administrator may 
waive any section of these rules or prescribe any alternative 
procedures the Administrator determines to be appropriate.
    (f) Computation of time. Except as otherwise required by law, any 
period of time specified in these rules or by order of the Hearing 
Officer is computed to exclude the day of the event from which the time 
period begins to run and any day that is not a Business Day. The last 
day of any time period is included in the time period, unless it is not 
a Business Day. If the last day of any time period is not a Business 
Day, the period does not end until the close of business on the next 
Business Day.

Section 1010.2 Definitions

    Capitalized terms not otherwise defined in these rules have the 
meaning specified below.
    (a) ``Administrator'' means the BPA Administrator or the acting 
Administrator.
    (b) ``Bonneville'' or ``BPA'' means the Bonneville Power 
Administration.
    (c) ``Business Day'' means any day that is not a Saturday, Sunday, 
day on which Bonneville closes and does not reopen prior to its 
official close of business, or legal public holiday as designated in 5 
U.S.C. 6103.
    (d) ``Commercially Sensitive Information'' means information in the 
possession of a Litigant (including its officers, employees, agents, or 
experts) that is not otherwise publicly available and has economic 
value or could cause economic harm if disclosed, including but not 
limited to information that is copyrighted, licensed, proprietary, 
subject to a confidentiality obligation, or contains trade secrets or 
similar information that could provide a risk of competitive 
disadvantage or other business injury.
    (e) ``Counsel'' means any member in good standing of the bar of the 
highest court of any state, commonwealth, possession, territory, or the 
District of Columbia. Counsel appearing in a proceeding must conform to 
the standards of ethical conduct required of practitioners in the 
Federal courts of the United States.
    (f) ``Critical Energy/Electric Infrastructure Information'' or 
``CEII'' means information related to (1) a system or asset of the 
bulk-power system, whether physical or virtual, the incapacity or 
destruction of which would negatively affect national security, 
economic security, public health or safety, or any combination of such 
matters; or (2) specific engineering, vulnerability, or detailed design 
information about proposed or existing critical infrastructure that (i) 
relates details about the production, generation, transportation, 
transmission, or distribution of energy; (ii) could be useful to a 
person in planning an attack on critical infrastructure; (iii) is 
exempt from mandatory disclosure under the Freedom of Information Act, 
5 U.S.C. 552; and (iv) does not simply give the general location of the 
critical infrastructure.
    (g) ``Cross-examination Exhibit'' means any document or other 
material to be presented to a witness for any purpose on cross-
examination.
    (h) ``Data Request(s)'' means a written request for information in 
any form, including documents, or an admission submitted in accordance 
with Section 1010.12(b).
    (i) ``Draft Record of Decision'' means the document that sets forth 
the Administrator's proposed decision on each issue in the pending 
proceeding.
    (j) ``Ex Parte Communication'' means an oral or written 
communication (1) relevant to the merits of any issue in the pending 
proceeding; (2) that is not on the Record; and (3) with respect to 
which reasonable prior notice to Parties has not been given.
    (k) ``Evidence'' means any material admitted into the Record by the 
Hearing Officer.
    (l) ``Federal Register Notice'' means the notice identified under 
Section 1010.4.
    (m) ``Final Record of Decision'' means the document that sets forth 
the Administrator's final decision on each issue in the pending 
proceeding.
    (n) ``Hearing Clerk'' means the individual(s) assisting the Hearing 
Officer as designated in the Federal Register Notice.
    (o) ``Hearing Officer'' means the official designated by the 
Administrator to conduct a proceeding under these rules.
    (p) ``Hearing Officer's Recommended Decision'' means the document 
that sets forth the Hearing Officer's recommendation to the 
Administrator on each issue in a proceeding pursuant to Section 
1010.1(a)(2).
    (q) ``Litigant(s)'' means Bonneville and all Parties to the pending 
proceeding.
    (r) ``Participant'' means any Person who is not a Party and who 
submits oral or written comments pursuant to Section 1010.8.
    (s) ``Party'' means any Person whose intervention is effective 
under Section 1010.6. A Party may be represented by its Counsel or 
other qualified representative, provided that such representative 
conforms to the ethical standards prescribed in Section 1010.2(e).
    (t) ``Person'' means an individual; partnership; corporation; 
limited liability company; association; an organized group of persons; 
municipality, including a city, county, or any other political 
subdivision of a state; state, including any agency, department, or 
instrumentality of a state; a province, including any agency, 
department, or instrumentality of a province; the United States or 
other nation, or any officer, or agent of any of the foregoing acting 
in the course of his or her employment or agency.
    (u) ``Prefiled Testimony and Exhibits'' means any testimony, 
exhibits, studies, documentation, or other materials in a Litigant's 
direct or rebuttal case submitted in accordance with the procedural 
schedule. Prefiled Testimony and Exhibits do not include pleadings, 
briefs, or Cross-examination Exhibits.
    (v) ``Rate'' means the monetary charge, discount, credit, 
surcharge, pricing formula, or pricing algorithm for any electric power 
or transmission service provided by Bonneville, including charges for 
capacity and energy. The term excludes, but such exclusions are not 
limited to, transmission line losses, leasing fees or charges from 
Bonneville for operation and maintenance of customer-owned facilities. 
A rate may be set forth in a contract; however, other portions of a 
contract do not thereby become part of the rate for purposes of these 
rules.
    (w) ``Record'' means (1) Evidence; (2) transcripts, notices, 
briefs, pleadings, and orders from the proceeding; (3) comments 
submitted by Participants; (4) the Hearing Officer's Recommended 
Decision, if applicable; (5) the Draft Record of Decision, if any; and 
(6) such other materials and information as may have been submitted to, 
or developed by, the Administrator.
    (x) ``Secure website'' means the website established and maintained 
by Bonneville for proceedings under these rules.

Section 1010.3 Hearing Officer

    (a) The Hearing Officer is responsible for conducting the 
proceeding, managing the development of the Record, and resolving 
procedural matters. In addition, in a proceeding pursuant to Section 
1010.1(a)(2), the Hearing Officer is responsible for

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making a Recommended Decision to the Administrator as set forth in 
Section 1010.20.
    (b) The Hearing Officer shall not expand the scope of the 
proceeding beyond the scope established in the Federal Register Notice. 
If the Hearing Officer is uncertain whether a potential action would 
improperly allow information outside the scope to be entered into 
Evidence, the Hearing Officer shall certify the question directly to 
the Administrator for a determination.
    (c) The Hearing Officer may, in his or her discretion, issue 
special rules of practice to implement these rules, provided that such 
special rules are consistent with these rules.
    (d) Except as provided in Section 1010.12(c), the Hearing Officer 
may issue protective orders or make other arrangements for the review 
of information requested in a Data Request.
    (e) The Hearing Officer may reject or exclude all or part of any 
document or materials not submitted in accordance with these rules or 
order a Litigant to conform such document or materials to the 
requirements of these rules.
    (f) Litigants shall direct communications regarding procedural 
issues to the Hearing Clerk. The Hearing Clerk's contact information 
will be provided in the Federal Register Notice.

Section 1010.4 Initiation of Proceeding

    (a) Any proceeding conducted under these rules will be initiated on 
the day a notice of Bonneville's initial proposal is published in the 
Federal Register.
    (b) The Federal Register Notice will:
    (1) State, as applicable, the proposed rates and/or the proposed 
new or revised terms and conditions of transmission service, a 
statement of the justification and reasons supporting such proposals, 
and any additional information required by law;
    (2) State the procedures for requesting access to the Secure 
website for purposes of filing petitions to intervene and the deadline 
for filing such petitions;
    (3) State the deadline and the procedures for Participants to 
submit comments;
    (4) If applicable, state that the proceeding is an expedited 
proceeding under Section 1010.22 and explain the reasons for the 
expedited proceeding;
    (5) State the date on which the Hearing Officer will conduct the 
prehearing conference;
    (6) In a proceeding pursuant to Section 1010.1(a)(2), state the 
date on which the Hearing Officer will issue the Hearing Officer's 
Recommended Decision, which date shall be used by the Hearing Officer 
in establishing the procedural schedule for the proceeding;
    (7) State the date(s) on which the Administrator expects to issue 
the Draft Record of Decision, if any, and the Final Record of Decision, 
which date(s) shall be used by the Hearing Officer in establishing the 
procedural schedule for the proceeding;
    (8) Define the scope of the proceeding and specify:
    (i) Issues that are not within the scope of the proceeding;
    (ii) That only Bonneville may prescribe or revise the scope of the 
proceeding;
    (iii) That Bonneville may revise the scope of the proceeding to 
include new issues that arise as a result of circumstances or events 
occurring outside the proceeding that are substantially related to the 
rates or terms and conditions under consideration in the proceeding; 
and
    (iv) That, if Bonneville revises the scope of the proceeding to 
include new issues, Bonneville will provide public notice, a reasonable 
opportunity to intervene, testimony or other information regarding such 
issues, and an opportunity for Parties to respond to Bonneville's 
testimony or other information.
    (9) Provide other information that is pertinent to the proceeding.

Section 1010.5 Ex Parte Communications

    (a) General Rule. No Party or Participant in any proceeding under 
these rules shall make Ex Parte Communications to the Administrator, 
other Bonneville executives, any Bonneville staff member, the Hearing 
Officer, or the Hearing Clerk. In addition, no Bonneville staff member 
shall make Ex Parte Communications to the Hearing Officer or the 
Hearing Clerk. The Administrator, other Bonneville executives, 
Bonneville staff members, and the Hearing Officer shall not initiate or 
entertain Ex Parte Communications; however, communications among the 
Administrator, other Bonneville executives, and Bonneville staff 
members are not Ex Parte Communications.
    (b) Exceptions. The following communications will not be considered 
Ex Parte Communications subject to paragraph (a) of this section:
    (1) Relating to matters of procedure only;
    (2) If otherwise authorized by law or other portions of these 
rules;
    (3) From or to the Federal Energy Regulatory Commission;
    (4) Which all Litigants agree may be made on an ex parte basis;
    (5) Relating to communications in the ordinary course of business, 
information required to be exchanged pursuant to contracts, or 
information that Bonneville provides in response to a Freedom of 
Information Act request;
    (6) Relating to a request for supplemental information necessary 
for an understanding of factual materials contained in documents filed 
in a proceeding under these rules and which is made after coordination 
with Counsel for Bonneville;
    (7) Relating to a topic that is only secondarily the object of a 
proceeding, for which Bonneville is statutorily responsible under 
provisions other than Northwest Power Act Section 7, or which is 
eventually decided other than through a Section 7(i) proceeding; or
    (8) Between the Hearing Officer and Hearing Clerk or other staff 
supporting the Hearing Officer.
    (c) Application. The prohibitions contained in this Section 1010.5 
apply from the day on which Bonneville publishes the Federal Register 
Notice and continue until the day the Administrator issues the Final 
Record of Decision in the proceeding.
    (d) Notice of meetings. Bonneville will give reasonable notice to 
all Parties of any meeting that it intends to hold with any customer 
group or member of the public when it reasonably appears that matters 
relevant to any issue in the pending proceeding will be discussed.
    (e) Written communications. Any written Ex Parte Communication 
received by the Administrator, other Bonneville executives, any 
Bonneville staff member, the Hearing Officer, or the Hearing Clerk will 
be promptly delivered to Counsel for Bonneville. The document will be 
posted for public review in a section of Bonneville's website for ex 
parte materials. The Ex Parte Communication will not become part of the 
Record.
    (f) Oral communications. If the Administrator, other Bonneville 
executives, any Bonneville staff member, the Hearing Officer, or the 
Hearing Clerk receives an oral offer of any Ex Parte Communication, 
they shall decline to listen to such communication and explain that 
such communication is prohibited by this Section 1010.5. If 
unsuccessful in preventing such communication, the recipient thereof 
shall advise the communicator that he or she will not consider the 
communication. The recipient shall promptly prepare a statement setting 
forth the substance of the communication and the circumstances thereof 
and deliver the statement to Counsel for Bonneville. The statement will 
be posted for public review on the

[[Page 19267]]

ex parte website identified in paragraph (e) of this section.
    (g) Notice and opportunity for rebuttal. Bonneville will notify 
Parties when any Ex Parte Communication has been posted on the ex parte 
website identified in paragraph (e) of this section. A motion seeking 
the opportunity to rebut any facts or contentions in an Ex Parte 
Communication must be filed within five Business Days of Bonneville's 
notification that the communication has been posted on the ex parte 
website. The Hearing Officer will grant such a motion if he or she 
finds that providing the opportunity to rebut the Ex Parte 
Communication is necessary to prevent substantial prejudice to a 
Litigant.

Section 1010.6 Intervention

    (a) Filing. A Person seeking to become a Party in a proceeding 
under these rules must request access to the Secure website pursuant to 
the procedures set forth in the Federal Register Notice initiating the 
proceeding. After being granted access, such Person shall file a 
petition to intervene through the Secure website.
    (b) Contents. A petition to intervene must state the name, address, 
and email address of the Person and the Person's interests in the 
outcome of the proceeding. Petitioners may designate no more than eight 
individuals on whom service will be made. If the petitioner requires 
additional individuals to be added to the service list, it may request 
such relief from the Hearing Officer. Entities that directly purchase 
power or transmission services under Bonneville's rate schedules, or 
trade organizations representing those entities, will be granted 
intervention, based on a petition filed in conformity with this Section 
1010.6. Other petitioners must explain their interests in sufficient 
detail to permit the Hearing Officer to determine whether they have a 
relevant interest in the proceeding.
    (c) Time.
    (1) Petitions must be filed by the deadline specified in the 
Federal Register Notice, unless Bonneville provides a subsequent 
opportunity to intervene pursuant to Section 1010.4(b)(8)(iv).
    (2) Late interventions are strongly disfavored. Granting an 
untimely petition to intervene must not be a basis for delaying or 
deferring any procedural schedule. A late intervenor must accept the 
Record developed prior to its intervention. In acting on an untimely 
petition, the Hearing Officer shall consider whether:
    (i) The petitioner has a good reason for filing out of time;
    (ii) Any disruption of the proceeding might result from granting a 
late intervention;
    (iii) The petitioner's interest is adequately represented by 
existing Parties; and
    (iv) Any prejudice to, or extra burdens on, existing Parties might 
result from permitting the intervention.
    (d) Opposition. Any opposition to a timely petition to intervene 
must be filed within two Business Days after the deadline for filing 
petitions to intervene. Any opposition to a late-filed petition to 
intervene must be filed within two Business Days after service of the 
petition.

Section 1010.7 Joint Parties

    (a) Parties with common interests or positions in a pending 
proceeding are encouraged to form a Joint Party for purposes of filing 
pleadings, Prefiled Testimony and Exhibits, and briefs and for 
conducting cross-examination. Such grouping will be without derogation 
to the right of any Party to represent a separate point of view where 
its position differs from that of the Joint Party in which it is 
participating.
    (b) To form a Joint Party, one member of the proposed Joint Party 
must email a list of proposed Joint Party members to the Hearing Clerk 
and to Counsel for each proposed member and represent that all of the 
named members are in concurrence with the formation of the Joint Party. 
The Hearing Clerk will form the Joint Party, assign a Joint Party code, 
and email notice to all Litigants, stating the Joint Party code and 
listing the Joint Party members.

Section 1010.8 Participants

    (a) Any Participant may submit written comments for the Record or 
present oral comments in legislative-style hearings, if any, for the 
purpose of receiving such comments. The Federal Register Notice will 
set forth the procedures and deadline for Participant comments. In the 
event new issues arise after such deadline due to unforeseen 
circumstances, the Hearing Officer may extend the deadline for 
Participant comments. Participant comments will be made available on 
Bonneville's website.
    (b) The Hearing Officer may allow reasonable questioning of a 
Participant by Counsel for any Litigant if the Participant presents 
oral comments at a legislative-style hearing.
    (c) Participants do not have the rights of Parties. The procedures 
in Sections 1010.6, 1010.7, and 1010.9 through 1010.19 are not 
available to Participants.
    (d) Parties may not submit Participant comments. Employees of 
organizations that have intervened may submit Participant comments as 
private individuals (that is, not speaking for their organizations) but 
may not use the comment procedures to further promote specific issues 
raised by their intervenor organizations.

Section 1010.9 Prehearing Conference

    A prehearing conference will be held on the date specified in the 
Federal Register Notice. During the conference, the Hearing Officer 
shall establish (1) a procedural schedule, and (2) any special rules of 
practice in accordance with Section 1010.3(c).

Section 1010.10 Filing and Service

    (a) Unless otherwise specified, a Litigant shall make any filing 
provided for by these rules with the Hearing Officer through the Secure 
website. Such filing will constitute service on all Litigants. If the 
Secure website is unavailable for filing, a Litigant shall serve the 
document to be filed on the Hearing Officer, Hearing Clerk, and all 
Litigants through email and thereafter file the document on the Secure 
website as soon as practicable when the Secure website becomes 
available.
    (b) In addition to Parties whose petitions to intervene are granted 
by the Hearing Officer, the Administrator may designate additional 
Persons upon whom service will be made.
    (c) Except as provided in paragraph (b) of this section, service 
will not be made upon Participants.
    (d) Submission of Data Requests and responses to such requests is 
governed by Section 1010.12(b), except that paragraph (e) of this 
section governs the timing of such requests and responses.
    (e) All filings provided for by these rules must be made, and Data 
Requests and responses must be submitted, on Business Days no later 
than 4:30 p.m., Pacific Time, in accordance with the procedural 
schedule adopted by the Hearing Officer. Filings made outside of these 
times are deemed to have been filed on the next Business Day and, if 
such day is after an applicable deadline, may be rejected by the 
Hearing Officer.

Section 1010.11 Pleadings

    (a) Types of pleadings. Pleadings include petitions to intervene, 
motions, answers, and replies to answers. Pleadings do not include 
Prefiled Testimony and Exhibits, Cross-examination Exhibits, Data 
Requests and responses, or briefs.
    (b) Content. Pleadings must include the docket number and title of 
the proceeding, the name of the Litigant filing the pleading, the 
specific relief sought, any relevant facts and law, and

[[Page 19268]]

an electronic signature (typed as ``/s/Name'') of the Litigant's 
representative. Pleadings must follow the document numbering system 
established by the Hearing Officer and display the document number in 
the footer of the pleading.
    (c) Format. Pleadings must be filed as text-recognized PDFs 
converted directly from a word processing software and conform to the 
following format: (1) Page size must be 8\1/2\ by 11 inches; in 
portrait orientation; (2) margins must be at least 1 inch on all sides; 
(3) text must be double-spaced, with the exception of headings, block 
quotes, and footnotes; and (4) font size must be comparable to 12 
points Times New Roman (10 points Times New Roman for footnotes) or 
larger. Parties are encouraged to conform legal citations to the most 
current edition of The Bluebook: A Uniform System of Citation, 
published by The Harvard Law Review Association.
    (d) Answers to pleadings. Unless otherwise determined by the 
Hearing Officer, answers to pleadings must be filed within four 
Business Days of service of the pleading.
    (e) Replies to answers. Unless otherwise determined by the Hearing 
Officer, replies to answers are not allowed.
    (f) Interlocutory appeal. Interlocutory appeal to the Administrator 
of an order issued by the Hearing Officer is discouraged. Such an 
appeal will only be permitted upon a motion filed within five Business 
Days of the order being appealed and an order by the Hearing Officer 
certifying the ruling to the Administrator. The Hearing Officer shall 
certify the ruling to the Administrator upon finding that:
    (1) The order terminates a Party's participation in the proceeding 
and the Party's inability to participate thereafter could cause it 
substantial and irreparable harm;
    (2) Review is necessary to prevent substantial prejudice to a 
Litigant; or
    (3) Review could save the Administrator, Bonneville, and the 
Parties substantial effort or expense, or some other factor is present 
that outweighs the costs in time and delay of exercising review.
    The Administrator may accept or reject the Hearing Officer's 
certification of a ruling at his or her discretion. An answer to a 
motion for interlocutory appeal must be filed in accordance with 
paragraph (d) of this section.

Section 1010.12 Clarification Sessions and Data Requests

    (a) Clarification sessions.
    (1) The Hearing Officer may schedule one or more informal 
clarification sessions for the purpose of allowing Litigants to 
question witnesses about the contents of their Prefiled Testimony and 
Exhibits and the derivation of their recommendations and conclusions. 
The Hearing Officer will not attend the clarification sessions. 
Clarification sessions will not be used to conduct cross-examination, 
and discussions in clarification sessions will not be transcribed or 
become part of the Record. Litigants may participate in clarification 
sessions by phone or other technology made available by Bonneville.
    (2) If a Litigant does not make any witness available for a 
clarification session, the witness's Prefiled Testimony and Exhibits 
may be subject to a motion to strike.
    (b) Data Requests and responses. All Data Requests and responses to 
Data Requests must be submitted according to the rules in this Section 
1010.12(b) and Section 1010.10(e). For purposes of this Section 
1010.12(b), ``Requesting Litigant'' means the Litigant that submitted 
the Data Request at issue, and ``Responding Litigant'' means the 
Litigant that received the Data Request.
    (1) Scope in general. Except as otherwise provided in this Section 
1010.12(b), a Data Request may seek information or an admission 
relevant to any issue in the proceeding; provided, however, such 
requests must be proportional to the needs of the proceeding 
considering the importance of the issues at stake, the amount in 
controversy, the Litigants' relative access to relevant information, 
the Litigants' resources, the extent of the Responding Litigant's 
testimony on the subject and participation in the proceeding, the 
importance of the information sought to develop Evidence on the issue, 
and whether the burden or expense of responding to the request 
outweighs the likely benefit if the response were admitted into 
Evidence.
    (i) Each Litigant shall be reasonable in the number and breadth of 
its Data Requests in consideration of the factors listed in paragraph 
(b)(1) of this section. A Litigant that believes it has received one or 
more unreasonable Data Request(s) from another Litigant may object to 
the request(s) on that basis. Any dispute over such an objection will 
be resolved in accordance with the procedures in paragraph (e) of this 
section.
    (ii) A Litigant shall not be required to perform any new study or 
analysis, but a Litigant may, in its sole discretion and without 
waiving any objection to any Data Request, agree to perform such study 
or analysis.
    (iii) A Litigant shall not be required to produce publicly 
available information.
    (iv) A Litigant shall not be required to produce information that 
is unduly burdensome to provide or produce the same information 
multiple times in response to cumulative or duplicative Data Requests.
    (v) A Litigant shall not be required to produce any information 
that is protected from disclosure by the attorney-client privilege or 
attorney work product doctrine.
    (vi) Bonneville shall not be required to produce documents that, in 
the opinion of Counsel for Bonneville, may be exempt from production 
under the Freedom of Information Act, 5 U.S.C. 552, or the Trade 
Secrets Act, 18 U.S.C. 1905.
    (2) Submitting Data Requests. All Data Requests must be submitted 
through the Secure website.
    (i) A Data Request must identify the Prefiled Testimony and 
Exhibits (page and line numbers) or other material addressed in the 
request.
    (ii) A Litigant shall not submit a Data Request seeking the 
response to another Data Request.
    (iii) During the period established in the procedural schedule for 
submitting Data Requests immediately following the filing of 
Bonneville's Initial Proposal, Parties may submit Data Requests only to 
Bonneville.
    (iv) A multi-part Data Request must include a reasonably limited 
number of subparts, and all subparts must address only one section or 
other discrete portion of a Litigant's Prefiled Testimony and Exhibits. 
Each subpart of a multi-part Data Request will be considered a separate 
Data Request for purposes of this Section 1010.12(b).
    (3) Responding to Data Requests. All Responses to Data Requests, 
except responses containing Commercially Sensitive Information or CEII, 
must be submitted through the Secure website.
    (i) Except as otherwise provided by the Hearing Officer, a Litigant 
must provide a response to each Data Request no later than five 
Business Days after the day that the Data Request is submitted through 
the Secure website. The Hearing Officer may specify exceptions to this 
rule and establish alternative deadlines, for example, for periods 
spanning holidays.
    (ii) An objection to a data request will be considered a response 
for purposes of this Section 1010.12(b). In any response that includes 
one or more objections, the Litigant must state the grounds for the 
objection(s) and why any

[[Page 19269]]

information or admission is being withheld.
    (iii) As soon as a Responding Litigant estimates that it will not 
be able to respond to one or more Data Requests by the due dates 
because of the volume of or other burden caused by the request(s), the 
Responding Litigant shall contact the Requesting Litigant and confer 
about a possible delay in the due date. If the Litigants have not 
resolved the matter by the due date, the Responding Litigant shall file 
an objection on the due date and supplement the objection with a 
response in good faith as soon as possible thereafter. Any dispute over 
such an objection will be resolved in accordance with the procedures in 
paragraph (e) of this section.
    (c) Information that is attorney-client privileged or attorney work 
product. If a Responding Litigant withholds information from a response 
to a Data Request on the basis of attorney-client privilege or the 
attorney work product doctrine, it must object and so state in its 
response. Upon written request by Counsel for the Requesting Litigant, 
the Responding Litigant must submit a supplemental response to the Data 
Request that includes a declaration made by Counsel for such Litigant 
in accordance with 28 U.S.C. 1746 stating that the information withheld 
is protected from disclosure by attorney-client privilege or the 
attorney work product doctrine, and identifying, without revealing 
information that itself is privileged or protected, the information 
withheld. The Hearing Officer may not order in camera review or release 
of information that a Litigant has withheld from a response to a Data 
Request on the basis of attorney-client privilege or the attorney work 
product doctrine.
    (d) Commercially Sensitive Information and CEII.
    (1) When a Responding Litigant has determined that responding to a 
Data Request will require it to produce Commercially Sensitive 
Information or CEII that is otherwise discoverable, the Litigant shall 
notify and confer with the Requesting Litigant to attempt to agree to 
the terms of a proposed protective order, including a non-disclosure 
certificate, to govern exchange and use of the Commercially Sensitive 
Information or CEII. If the conferring Litigants agree to the terms of 
a proposed protective order, they must file the proposed order with the 
Hearing Officer along with a motion seeking adoption of the order. If 
the conferring Litigants are unable to agree to the terms of a 
protective order within three Business Days of starting to confer, each 
Litigant shall file a proposed protective order, and the Hearing 
Officer shall enter an order adopting a protective order to govern the 
exchange and use of Commercially Sensitive Information or CEII. Such 
protective order may be, but is not required to be, based upon the 
proposed protective orders filed by the Litigants and must be 
consistent with the requirements in paragraph (d)(2) of this section. 
Once the Hearing Officer has adopted a protective order, and the 
Requesting Litigant has filed its signed non-disclosure certificate(s), 
the Responding Litigant must provide the Commercially Sensitive 
Information or CEII to the Requesting Litigant within three Business 
Days.
    (2) Any protective order proposed by a Litigant or adopted by the 
Hearing Officer must be consistent with the following requirements but 
is not limited to these requirements:
    (i) Prior to receiving any Commercially Sensitive Information or 
CEII, a Litigant that wants access to such information must file on the 
Secure website signed non-disclosure certificate(s) for any individual 
that the Litigant intends to have access to such information.
    (ii) Any documents or other materials that include Commercially 
Sensitive Information or CEII, including any copies or notes of such 
documents, must be plainly marked on each page with the following text: 
``Commercially Sensitive Information [or CEII]--Subject to Protective 
Order No. _____.'' Any electronic files must include the same text in 
the file name. The requirements of this paragraph do not preclude any 
additional marking required by law.
    (iii) Responses to Data Requests that contain Commercially 
Sensitive Information or CEII must not be submitted via the Secure 
website. The protective order must prescribe a secure manner for 
providing such a response to any Litigant that files a signed non-
disclosure certificate(s).
    (iv) Any Prefiled Testimony and Exhibits, Cross-examination 
Exhibits, briefs, or other documents that include Commercially 
Sensitive Information or CEII must not be filed via the Secure website. 
The protective order must prescribe a secure manner for making such a 
filing directly with the Hearing Officer such as via encrypted email or 
on physical media (CD, USB stick, etc.) and for simultaneously serving 
the document on all Litigants that have filed signed non-disclosure 
certificates. Any Litigant that makes a filing with Commercially 
Sensitive Information or CEII must simultaneously file a redacted or 
public version of the document via the Secure website.
    (v) The protective order must authorize Bonneville to file or 
otherwise submit any Commercially Sensitive Information or CEII from a 
proceeding under these rules with the Federal Energy Regulatory 
Commission or any other administrative or judicial body in accordance 
with any applicable requirements of that body.
    (vi) The protective order must authorize Bonneville to retain any 
Commercially Sensitive Information or CEII from a proceeding under 
these rules until the decision in the proceeding is no longer subject 
to judicial review.
    (vii) The protective order must include provisions that govern the 
return or destruction of Commercially Sensitive Information and CEII.
    (viii) A protective order may include a ``Highly Confidential'' 
designation for Commercially Sensitive Information or CEII that is of 
such a sensitive nature that the producing Litigant is able to justify 
a heightened level of protection. The Hearing Officer shall determine 
the appropriate level or means of protection for such information, 
including the possible withholding of such information altogether.
    (3) Notwithstanding the requirement in paragraph (d)(2)(iv) of this 
section that a protective order must provide a secure manner of filing 
documents that include Commercially Sensitive Information or CEII, 
Litigants are discouraged from making filings with such information 
because of the administrative burden that would result from the 
inclusion of such information in the Record. A Litigant should not file 
a document with such information unless it believes in good faith that 
its ability to present its argument would be significantly hindered by 
the absence of the information from the Record. Instead, Litigants are 
encouraged to summarize, describe, or aggregate Commercially Sensitive 
Information or CEII in filings in a manner that does not result in the 
inclusion of the information itself or otherwise effectively disclose 
the information.
    (4) The rules governing CEII in this Section 1010.12(b) do not 
preclude the application of any federal regulations regarding CEII that 
apply to Bonneville and are adopted after the effective date of these 
rules.
    (e) Disputes regarding responses to Data Requests. Litigants are 
strongly encouraged to informally resolve disputes regarding Data 
Requests and responses.
    (1) Duty to Confer. Before filing a motion to compel a response to 
a Data Request, the Requesting Litigant must confer with the Responding 
Litigant to

[[Page 19270]]

attempt to informally resolve any dispute. Each Litigant must confer in 
good faith to attempt to informally resolve the dispute.
    (2) Motion to Compel. If a dispute is not resolved informally, the 
Requesting Litigant may file a motion to compel no more than four 
Business Days after the earlier of the date a response to the Data 
Request is provided or the due date for the response. A motion to 
compel must demonstrate that the Data Request(s) at issue are within 
the scope described in paragraph (b)(1) of this section, and the 
Requesting Litigant must certify in the motion that it attempted to 
informally resolve the dispute in accordance with paragraph (e)(1) of 
this section.
    (3) Answer to motion to compel. Any answer to a motion to compel 
must be filed in accordance with Section 1010.11(d).
    (4) Resolution of dispute by the Hearing Officer. The Hearing 
Officer may hold a telephone conference to discuss and attempt to 
resolve a dispute regarding a response to a Data Request. In ruling on 
any motion to compel, the Hearing Officer shall consider, among other 
things, the factors listed in paragraph (b)(1) of this section, whether 
the Responding Litigant filed testimony related to the Data Request(s) 
before it received the Data Request(s), and the potential impact of the 
decision on completing the proceeding according to the procedural 
schedule.
    (f) Sanctions. The Hearing Officer may remedy any refusal to comply 
with an order compelling a response to a Data Request or a violation of 
a protective order by:
    (1) Striking the Prefiled Testimony and Exhibits to which the Data 
Request relates;
    (2) Limiting Data Requests or cross-examination by the Litigant 
refusing to comply with the order; or
    (3) Recommending to the Administrator that an appropriate adverse 
inference be drawn against the Litigant refusing to comply with the 
order.
    (g) Moving responses to Data Requests into Evidence. A response to 
a Data Request must be admitted into Evidence to be considered part of 
the Record. A Litigant that intends to introduce a response to a Data 
Request into Evidence must either: (1) Attach the full text of each 
such response as an exhibit in the Litigant's Prefiled Testimony and 
Exhibits; or (2) submit a motion to that effect, by the deadline(s) 
established by the Hearing Officer.

Section 1010.13 Prefiled Testimony and Exhibits

    (a) General rule.
    (1) All Prefiled Testimony and Exhibits must identify the 
witness(es) sponsoring the testimony and exhibits. Each Litigant that 
submits Prefiled Testimony and Exhibits must separately file a 
qualification statement for each witness sponsoring the testimony and 
exhibits. The qualification statement must describe the witness's 
education and professional experience as it relates to the subject 
matter of the Prefiled Testimony and Exhibits.
    (2) Except as otherwise allowed by the Hearing Officer, all 
prefiled testimony must be in written form and conform to the format of 
pleadings in Section 1010.11(c). Each section of prefiled testimony 
must include a heading setting forth its subject matter. Prefiled 
testimony must include line numbers in the left-hand margin of each 
page.
    (3) If prefiled testimony is based on the witness's understanding 
of the law, the witness shall so state in the testimony and, in order 
to provide context for the testimony, describe the witness's 
understanding of the law as it applies to the witness's position. In 
all other cases, legal arguments and opinions must not be included in 
Prefiled Testimony and Exhibits.
    (4) A witness qualified as an expert may testify in the form of an 
opinion. Any conclusions by the witness should, if applicable, be 
supported by data and explanation.
    (5) Litigants shall be provided an adequate opportunity to offer 
refutation or rebuttal of any material submitted by any other Party or 
by Bonneville. Any rebuttal to Bonneville's direct case must be 
included in a Party's direct testimony, along with any affirmative case 
that Party wishes to present. Any subsequent rebuttal testimony must be 
limited to rebuttal of the Parties' direct cases. New affirmative 
material may be submitted in rebuttal testimony only if in reply to 
another Party's direct case. No other new affirmative material may be 
introduced in rebuttal testimony. Rebuttal testimony must refer to the 
specific material being addressed (pages, lines, topic).
    (6) For documents or materials of excessive length that a Litigant 
wants to include in its Prefiled Testimony and Exhibits, the Litigant 
should create and include an excerpt of the document or materials that 
excludes irrelevant or redundant material.
    (b) Items by reference. Any materials that are incorporated by 
reference or referred to via electronic link in Prefiled Testimony and 
Exhibits will not be considered part of the testimony and exhibits for 
purposes of introducing the materials into Evidence. Only materials 
included as an exhibit to Prefiled Testimony and Exhibits will be 
considered part of the testimony and exhibits for purposes of 
introducing the materials into Evidence.
    (c) Moving Prefiled Testimony and Exhibits into Evidence. Prefiled 
Testimony and Exhibits must be admitted into Evidence to be considered 
part of the Record. If a Litigant's witness(es) sponsoring Prefiled 
Testimony and Exhibits are cross-examined, the Litigant shall move the 
witnesses' Prefiled Testimony and Exhibits into Evidence at the 
conclusion of the cross-examination. If there is no cross-examination 
of a Litigant's witness(es), a Litigant that intends to introduce the 
witness(es)'s Prefiled Testimony and Exhibits into Evidence shall, by 
any deadline established by the Hearing Officer, file a declaration of 
the witness(es) made in accordance with 28 U.S.C. 1746 that lists the 
Prefiled Testimony and Exhibits and certifies that the material is the 
same material previously filed in the proceeding and is true and 
correct to the best of their knowledge and belief. Upon filing of the 
declaration, the witnesses' Prefiled Testimony and Exhibits will be 
admitted into Evidence.
    (d) Motions to strike. Motions to strike Prefiled Testimony and 
Exhibits must be filed by the deadlines established in the procedural 
schedule. An answer to a motion to strike must be filed in accordance 
with Section 1010.11(d). If the Hearing Officer grants a motion to 
strike, the Litigant sponsoring the stricken material shall file 
conformed copies with strikethrough deletions of such material within 
five Business Days of the Hearing Officer's order. Conformed copies 
must be filed with the same document number as the original exhibit, 
but with the designation ``-CC'' at the end (e.g., BP-20-E-BPA-16-CC). 
Material struck by the Hearing Officer shall not be admitted into 
Evidence but will be considered part of the Record for purposes of 
reference regarding whether the motion should have been granted.

Section 1010.14 Cross-Examination

    (a) Except as otherwise provided by the Hearing Officer, witnesses 
generally shall be cross-examined as a panel for Prefiled Testimony and 
Exhibits that they co-sponsor, provided that each panel member (1) has 
submitted a qualification statement, and (2) is under oath.
    (b) At the time specified in the procedural schedule, a Litigant 
intending to cross-examine a witness shall file a cross-examination 
statement. The statement shall:

[[Page 19271]]

    (1) Identify the witnesses the Litigant intends to cross-examine 
and the Prefiled Testimony and Exhibits sponsored by the witnesses that 
will be the subject of the cross-examination;
    (2) Briefly describe the subject matter and portions of the 
Prefiled Testimony and Exhibits for cross-examination;
    (3) Specify the amount of time requested for cross-examination of 
each witness; and
    (4) Provide any other information required in an order issued by 
the Hearing Officer.
    (c) A Litigant waives cross-examination for any witnesses not 
listed in its cross-examination statement, except that any Litigant may 
ask follow-up questions of witnesses appearing at the request of 
another Litigant.
    (d) After the Litigants file cross-examination statements, the 
Hearing Officer shall issue a schedule setting forth the order of 
witnesses to be cross-examined.
    (e) Cross-examination is limited to issues relevant to the Prefiled 
Testimony and Exhibits that (1) are identified in the Litigant's cross-
examination statement, or (2) arise in the course of the cross-
examination.
    (f) Witnesses are not required to perform calculations on the stand 
or answer questions about calculations that they did not perform. 
Witnesses appearing as a panel shall determine in good faith which 
witness will respond to a cross-examination question.
    (g) A Litigant may only cross-examine witnesses whose position is 
adverse to the Litigant seeking to cross-examine. Notwithstanding the 
preceding sentence, a Litigant whose position is not adverse to the 
witnesses subject to cross-examination may, immediately following any 
redirect testimony by those witnesses, seek leave from the Hearing 
Officer to ask limited follow-up questions of the witnesses. Any such 
follow-up questions allowed by the Hearing Officer must be limited to 
the scope of the cross-examination of the witnesses.
    (h) Only a Litigant's Counsel may conduct cross-examination. Only 
Counsel for the witnesses being cross-examined may object to questions 
asked during cross-examination, except that Counsel for any Litigant 
may object to friendly cross-examination.
    (i) To avoid duplicative cross-examination, the Hearing Officer may 
impose reasonable limitations if the Litigants conducting cross-
examination have substantially similar positions.
    (j) The Hearing Officer may impose reasonable time limitations on 
the cross-examination of any witness.
    (k) Cross-examination Exhibits.
    (1) A Litigant must file each Cross-examination Exhibit to be 
presented to a witness for any purpose two Business Days before the 
witness is scheduled to appear. For example, for a witness appearing on 
a Monday, the due date for documents is the preceding Thursday at 4:30 
p.m.
    (2) A Litigant must provide physical copies of each Cross-
examination Exhibit to the Hearing Officer, the Hearing Clerk, each 
panel witness, witness's Counsel, and the court reporter at the 
beginning of cross-examination on the day the witness is scheduled to 
appear.
    (3) A Cross-examination Exhibit must be limited to material the 
Litigant intends to introduce into Evidence.
    (4) If a document is introduced into Evidence during cross-
examination, and only part of the document is admitted into Evidence, 
the document must be conformed by the Litigant to include only that 
part of the document admitted into Evidence. The conformed document 
must be filed through the Secure website.
    (l) All other matters relating to conduct of cross-examination are 
left to the Hearing Officer's discretion.

Section 1010.15 Stipulations

    The Hearing Officer may admit into Evidence stipulations on any 
issue of fact.

Section 1010.16 Official Notice

    The Administrator or the Hearing Officer may take official notice 
of any matter that may be judicially noticed by federal courts or any 
matter about which Bonneville is an expert. A Litigant requesting 
official notice shall provide a precise citation for the material for 
which official notice is requested and file the material on the Secure 
Website at the time the request is granted or as soon as practicable 
thereafter. The Hearing Officer may afford any Litigant making a timely 
request an opportunity to show the contrary of an officially noticed 
fact.

Section 1010.17 Briefs

    (a) General rule. Briefs must be filed at times specified in the 
procedural schedule. All evidentiary arguments in briefs must be based 
on cited material admitted into Evidence. Material not admitted into 
Evidence must not be attached to or relied upon in any brief, except to 
address disputes regarding the admissibility of specific material into 
Evidence. Incorporation by reference is not permitted. The Hearing 
Officer may impose page limitations on any brief. All briefs must 
comply with the format requirements in Section 1010.11(c) and the 
template provided in Attachment A, as may be amended.
    (b) Initial brief. At the conclusion of the evidentiary portion of 
a proceeding, each Party may file an initial brief. The purpose of an 
initial brief is to identify separately each legal, factual, and policy 
issue to be resolved by the Administrator and present all arguments in 
support of a Party's position on each of these issues. The initial 
brief should also rebut contentions made by adverse witnesses in their 
Prefiled Testimony and Exhibits. The initial brief must contain a final 
revised exhibit list reflecting the status of all of the Party's 
Prefiled Testimony and Exhibits, Cross-examination Exhibits, and any 
other exhibits, including those admitted, withdrawn, conformed, and 
rejected.
    (c) Brief on exceptions. After issuance of Bonneville's Draft 
Record of Decision, each Party may file a brief on exceptions. The 
purposes of the brief on exceptions are to (1) raise any alleged legal, 
policy, or evidentiary errors in the Draft Record of Decision; or (2) 
provide additional support for draft decisions contained in the Draft 
Record of Decision. All arguments raised by a Party in its initial 
brief will be deemed to have been raised in the Party's brief on 
exceptions, regardless of whether such arguments are included in the 
brief on exceptions.
    (d) Additional briefing rule for proceedings pursuant to Section 
1010.1(a)(2). In a proceeding pursuant to Section 1010.1(a)(2), 
Bonneville is considered a Party for purposes of filing briefs in 
accordance with this Section 1010.17, except that Section 1010.17(f) 
does not apply to Bonneville. In addition, in such a proceeding, the 
Hearing Officer or the Administrator may provide Litigants with 
additional briefing opportunities not otherwise set forth in these 
rules. Such additional briefing opportunities may include briefs on 
exceptions in addition to those set forth in Section 1010.17(c), above.
    (e) Optional brief and memorandum of law. The Hearing Officer may 
allow the filing of a brief and memorandum of law not expressly 
provided for by this section.
    (f) Waiver of issues or arguments. A Party whose briefs do not 
raise and fully develop the Party's position on any issue shall be 
deemed to take no position on such issue. Arguments or alleged errors 
not raised in initial briefs in accordance with Section 1010.17(b), 
briefs on exceptions in accordance with Section 1010.17(c), or briefs 
permitted by Section 1010.17(d) are deemed to be waived.

[[Page 19272]]

Section 1010.18 Oral Argument

    (a) An opportunity for each Litigant to present oral argument will 
be provided in proceedings conducted under these rules.
    (b) At the time specified in the procedural schedule, each Litigant 
that intends to present oral argument shall file a notice of intent to 
present oral argument. The notice must identify the speaker(s), a brief 
description of the subject matter to be addressed, and the amount of 
time requested.
    (c) After Litigants file notices of intent to present oral 
argument, the Hearing Officer shall issue an order setting forth the 
schedule of oral argument.

Section 1010.19 Telephone Conferences

    Telephone conferences may be permitted in appropriate 
circumstances, provided that: (1) There is a proposed agenda for the 
conference concerning the points to be considered and the relief, if 
any, to be requested during the conference; and (2) Litigants are 
provided notice and given an opportunity to be represented on the line. 
If the Hearing Officer schedules a telephone conference, the Hearing 
Officer may require that a court reporter be present on the line.

Section 1010.20 Hearing Officer's Recommended Decision

    In a proceeding pursuant to Section 1010.1(a)(2), the Hearing 
Officer shall, unless he or she becomes unavailable, issue the Hearing 
Officer's Recommended Decision stating the Hearing Officer's findings 
and conclusions, and the reasons or basis thereof, on all material 
issues of fact, law, or discretion.

Section 1010.21 Final Record of Decision

    (a) The Administrator will make a decision adopting final proposed 
rates for submission to the Federal Energy Regulatory Commission for 
confirmation and approval based on the Record.
    (b) In a proceeding pursuant to Section 1010.1(a)(2), the 
Administrator will make a determination in a Final Record of Decision 
on any terms and conditions of transmission service, or revisions 
thereto, at issue in the proceeding.
    (c) Any Final Record of Decision will be uploaded to the Secure 
Website and made available to Participants through Bonneville's 
external website.

Section 1010.22 Expedited Proceedings

    (a) General rule. The Administrator will determine, in his or her 
discretion, whether to conduct an expedited proceeding. The Final 
Record of Decision in a proceeding conducted under this section will be 
issued on an expedited basis in 90-120 days from the date of the 
Federal Register Notice. The Hearing Officer may establish procedures 
or special rules as set forth in Section 1010.3(c) necessary for the 
expedited schedule.
    (b) Extensions. The Hearing Officer may extend the schedule in 
response to a written motion by a Litigant showing good cause for the 
extension.

Attachment A--Brief Template

I. CATEGORY [all issues pertaining to a particular category, for 
example: POWER RATES, TRANSMISSION RATES, TRANSMISSION TERMS AND 
CONDITIONS, JOINT ISSUES, PROCEDURAL ISSUES]

A. General Topic Area [for example: Secondary Sales]

    Issue 1: The specific issue to be addressed [for example: 
Whether Bonneville's forecast of energy prices should be revised 
upward].

Summary of Party's Position

    A brief statement summarizing the party's position.
    [For example: Bonneville staff's forecast of energy prices for 
secondary sales is too conservative. The record demonstrates that 
the trend in market prices is upward. The Administrator should 
revise the forecast for the price of secondary energy upward 
consistent with Party X's proposal.]

Party's Position and Argument

    Statements of argument, including citations to the record.

Requested Action or Decision

    A brief description of the requested action or decision the 
party wants the Administrator to make.
    [For example: The projection of energy prices for Bonneville's 
secondary sales should be revised consistent with Party's X's 
proposal.]
    Issue 2: The specific issue to be addressed [for example: 
[Whether Bonneville's surplus power sales forecast is reasonable.]

Summary of Party's Position

    [For example: Bonneville's surplus power sales forecast is 
flawed because it does not account for extraregional power sales.]

Party's Position and Argument

    Statements of argument, including citations to the record.

Requested Action or Decision

    [For example: Bonneville's surplus power sales forecast should 
be increased to reflect extraregional power sales.]


                                          Post-Hearing List of Exhibits
----------------------------------------------------------------------------------------------------------------
            Filing code                         Title                  Date filed                Status
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XX-XX-E-XX-01......................  Direct Testimony..........  mm/dd/yyyy...........  Admitted.
----------------------------------------------------------------------------------------------------------------
XX-XX-E-XX-02......................  Rebuttal Testimony........  mm/dd/yyyy...........  Rejected.
----------------------------------------------------------------------------------------------------------------
 
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[[Page 19273]]

    Issued this 23rd day of April 2018.
Elliot E. Mainzer,
Administrator and Chief Executive Officer.
[FR Doc. 2018-09085 Filed 5-1-18; 8:45 am]
 BILLING CODE 6450-01-P