Final Rules of Procedure, 39993-40010 [2018-17223]

Agencies

• Bonneville Power Administration
• DEPARTMENT OF ENERGY

[Federal Register Volume 83, Number 156 (Monday, August 13, 2018)]
[Notices]
[Pages 39993-40010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17223]


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DEPARTMENT OF ENERGY

Bonneville Power Administration

[BPA File No.: RP-18]


Final Rules of Procedure

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

ACTION: Notice of final rules of procedure.

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SUMMARY: These final rules of procedure revise the rules of procedure 
that govern Bonneville's hearings conducted under section 7(i) of the 
Pacific Northwest Electric Power Planning and Conservation Act 
(Northwest Power Act).

DATES: The final rules of procedure are effective on September 12, 
2018.

FOR FURTHER INFORMATION CONTACT: Heidi Helwig, DKE-7, BPA 
Communications, Bonneville Power Administration, P.O. Box 3621, 
Portland, Oregon 97208; by phone toll[dash]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. Response to Comments and Changes to Proposed Rules
Part III. Final 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 FR 7611 
(Mar. 5, 1986). Since the establishment of those procedures, there have 
been significant advancements in the technology available to conduct 
the hearings. The revised rules of procedure incorporate changes to 
reflect the manner in which Bonneville will apply these advancements. 
In addition, through conducting numerous hearings over the past few 
decades, Bonneville gained insight regarding the strengths and 
weaknesses of its procedures. The revised rules reflect changes to make 
the hearings more efficient and to incorporate procedures that were 
regularly adopted by orders of the Hearing Officers in previous 
hearings. Finally, the revised rules now explicitly apply to any 
proceeding under section 212(i)(2)(A) of the Federal Power Act.
    In order to encourage public involvement and assist Bonneville in 
the development of the revisions to the rules, Bonneville met with 
customers and other interested parties on February 13, 2018, in 
Portland, Oregon, to discuss how the then-current rules might be 
revised. Bonneville also posted an initial draft of proposed revisions 
to the rules for public review and informally solicited written 
comments over a two-week period ending February 28, 2018. After 
reviewing the comments, Bonneville incorporated a number of revisions 
to the initial draft of proposed revisions to the rules. On May 2, 
2018, Bonneville published a Notice of proposed revised rules of 
procedure in the Federal Register. See Proposed Revised Rules of 
Procedure and Opportunity for Review and Comment, 83 FR 19262 (May 2, 
2018). 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 nevertheless published notice of the 
proposed revisions to the procedural rules in the Federal Register to 
promote transparency and public participation. Bonneville accepted 
written comments on the proposed revisions until June 4, 2018.

Part II--Response to Comments and Changes to Proposed Rules

    Bonneville received seven comments on its proposed revisions to the 
rules of procedure (``proposed rules''). In response to these comments, 
changes were made to the proposed rules as noted below. For purposes of 
clarity, if a term used in the discussion below is defined in the 
rules, the term has the meaning found in the rules. For example, 
``Party'' refers to all

[[Page 39994]]

intervenors and not Bonneville, while ``Litigant'' refers to all 
Parties and Bonneville.

Section 1010.1 General Provisions

    Avangrid Renewables LLC, Avista Corporation, Idaho Power Company, 
PacifiCorp, Portland General Electric Company, and Puget Sound Energy, 
Inc. (``Avangrid/IOU'') note that Section 1010.1(b)(3) of the proposed 
rules states that the rules do not apply to ``[c]ontract negotiations 
unless otherwise provided by paragraph (a) [general rule of 
applicability] of this section.'' Avangrid/IOU Comments at 1. Avangrid/
IOU states that this subsection is unclear, and the intent is not 
apparent. Id. Bonneville agrees that the provision is unclear. Upon 
further review, the provision is unnecessary because contract 
provisions are not negotiated or determined in section 7(i) ratemaking 
proceedings, but rather through separate negotiations. Furthermore, 
Bonneville's rates may be referenced in contracts, but rates can be 
effective only after they are established in section 7(i) proceedings. 
Hence, Bonneville has removed Section 1010.1(b)(3) from the final 
rules.

Section 1010.2 Definitions

    Sacramento Municipal Utility District, Turlock Irrigation District, 
and the Transmission Agency of Northern California (the ``Northern 
California Utilities'' or ``NCU'') suggest revising the definition of 
``Litigant'' to refer to ``Bonneville trial staff'' rather than 
``Bonneville.'' NCU Comments at 9. NCU separately suggests adopting 
``separation of functions'' rules and revising the proposed ex parte 
rule to prohibit ex parte communications between ``Bonneville trial 
staff'' and the Administrator or other Bonneville employees during 
section 7(i) proceedings. Bonneville has not adopted separation of 
functions rules or the distinction of a separate ``trial staff'' for 
the reasons explained in the discussion of the ex parte rule in Section 
1010.5 below.

Section 1010.3 Hearing Officer

    Avangrid/IOU states that Section 1010.3(f) of the proposed rules, 
which requires Litigants to ``direct communications regarding 
procedural issues to the Hearing Clerk,'' could be interpreted to 
preclude communications between Litigants on procedural issues. 
Avangrid/IOU Comments at 1-2. The intent of this section was to ensure 
that parties would contact the Hearing Clerk with any inquiries about 
administrative matters arising during the hearing instead of contacting 
Bonneville counsel or staff. The provision was not intended to limit 
discussions among Litigants on procedural issues. Section 1010.3(f) has 
been revised accordingly.

Section 1010.5 Ex Parte Communications

    Avangrid/IOU states that Section 1010.5(d) of the proposed rules 
requires notice of an anticipated ``ex parte meeting'' but fails to 
require Bonneville to prepare and make available a statement setting 
forth the substance of any ex parte communication that takes place at 
any such meeting. Avangrid/IOU Comments at 2-3. Section 1010.2(j) of 
the proposed rules, however, provides that an 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.'' (Emphasis added.) Under this definition, oral or written 
statements at noticed meetings are not ex parte communications and 
therefore do not require the preparation of a memorandum summarizing 
the meeting. This is not a change from Bonneville's existing procedural 
rules. When public notice is provided for a meeting, all Litigants have 
the opportunity to attend, to identify the attendees, and to note any 
issues discussed, positions taken, and statements made by any other 
attendees. However, in order to ensure that there is no ambiguity, 
Bonneville has added oral or written statements made at noticed 
meetings to the list in Section 1010.5(b) of communications that are 
not ex parte.
    NCU urges Bonneville to adopt ``separation of function'' rules that 
would distinguish separate Bonneville ``trial staff'' that work on 
section 7(i) proceedings and prohibit ex parte communications between 
the trial staff and the Administrator or other Bonneville employees. 
NCU Comments at 19. NCU notes that Bonneville added language to the 
existing rules to prohibit ex parte communications between the Hearing 
Officer and Bonneville staff members and argues that the principle 
behind this prohibition applies equally to communications between 
Bonneville staff working on a section 7(i) proceeding and the 
Administrator. NCU suggests that such prohibitions are critical to fair 
and transparent proceedings. Id.
    Bonneville added the language explicitly prohibiting ex parte 
communications with the Hearing Officer in recognition of the Hearing 
Officer's unique responsibility in proceedings under section 
212(i)(2)(A) of the Federal Power Act. Section 212(i)(2)(A) requires 
the Hearing Officer to issue a recommended decision to the 
Administrator on the substantive issues in a proceeding to establish 
terms and conditions of transmission service. This requirement does not 
appear in the Northwest Power Act or apply to proceedings to establish 
rates. In proceedings to establish rates, the Hearing Officer's 
decision-making is limited to procedural issues.
    NCU states that the inclusion of Bonneville staff members among 
those who are prohibited from having ex parte communications with the 
Hearing Officer under the revised rules implicitly acknowledges 
shortcomings in the existing rules. Id. This is incorrect. Bonneville 
has been conducting a public process in recent months (separate from 
revision of the procedural rules) to address the use of the section 
212(i)(2)(A) procedures for the adoption of terms and conditions of 
transmission service. Stakeholders in that process expressed concern 
about the need to explicitly prohibit ex parte communications between 
the Hearing Officer and all participants in section 212(i)(2)(A) 
proceedings given that the Hearing Officer would make a recommended 
decision on the substantive issues in those proceedings. Bonneville 
added the language in response to those concerns, not because of a lack 
of transparency or fairness in the existing rules or complaints about 
such issues in the proceedings that Bonneville has conducted under 
those rules for many years.
    NCU acknowledges that Bonneville's statutes do not require adoption 
of rules governing the separation of functions. NCU Comments at 21. 
Instead, the separation of functions requirement applies only to 
certain adjudications under the Administrative Procedure Act. 5 U.S.C. 
554. Bonneville's section 7(i) proceedings, in contrast, are formal 
rulemakings. Indeed, the Northwest Power Act provides that ``[n]othing 
in this section shall be construed to require a hearing pursuant to 
section 554, 556, or 557 of title 5.'' 16 U.S.C. 839f(e)(2). 
Legislative history confirms that ``[t]he adjudication provisions of 5 
U.S.C. 554 and 557 do not apply to hearings under this bill.'' H.R. 
Rep. 96-976, Pt. I, 96th Cong., 2d Sess. 71 (1980). Bonneville's 
section 7(i) proceedings establish generally applicable rates or terms 
and conditions of transmission service. These proceedings do not 
determine the legal status of particular persons or practices. Because 
these proceedings are not adjudications, Bonneville is not required to 
adopt separation of function rules.

[[Page 39995]]

    Aside from the lack of legal requirements, adopting separation of 
function rules would lead to nonsensical results. It would effectively 
isolate the Administrator and the rest of Bonneville from the very 
subject matter experts that Bonneville employs to work on rates and 
terms and conditions of transmission service. Bonneville staff plays a 
critical role in providing expertise to the agency's establishment of 
rates. Sound decision-making in the context of formal rulemaking 
requires the input of subject matter experts.
    Bonneville has not adopted NCU's suggestion regarding the 
separation of functions or associated ex parte provisions in the final 
rule.

Section 1010.6 Intervention

    The Alliance of Western Energy Consumers (``AWEC'') states that 
Bonneville should decline to adopt proposed revisions to Section 
1010.6(b), which provide that petitioners other than those ``that 
directly purchase power or transmission services under Bonneville's 
rate schedules, or trade organizations representing those entities'' 
must explain their interests in sufficient detail to permit the Hearing 
Officer to determine whether they have a relevant interest in the 
proceeding. AWEC Comments at 2. AWEC believes that the interests of 
end-use industrial consumer groups have been directly addressed in 
Federal case law, that customers and Bonneville understand the rights 
provided under the existing rules, and that making minor adjustments to 
the existing language runs the risk of creating confusion and disputes. 
Id.
    The revisions in the proposed rules were not intended to change the 
rights or standards governing intervention in Bonneville's section 7(i) 
proceedings. The proposed rules use more specific language to clarify 
that the ``customers and customer groups'' referred to in the previous 
rules are entities that directly purchase power or transmission 
services under Bonneville's rate schedules (or trade organizations 
representing those entities). Those entities are permitted to intervene 
upon filing a petition that conforms to Section 1010.6. Any petitioners 
other than those entities will continue to be permitted to intervene if 
they submit petitions that demonstrate a relevant interest in the 
proceeding.
    NCU seeks clarification that a Party that is granted intervention 
after the deadline for petitions to intervene may introduce evidence, 
conduct discovery, and participate in other ways if the time for doing 
so under the procedural schedule has not yet lapsed. NCU Comments at 9-
10. Bonneville has not made changes in the rules in response to this 
comment, but ``late'' intervenors have the same rights and obligations 
as other parties with respect to participation in accordance with the 
procedural schedule.

Section 1010.11 Pleadings

    NCU seeks clarification of the proposed rule governing 
interlocutory appeal of a Hearing Officer's decision to the 
Administrator. NCU Comments at 10. The proposed rule requires a 
Litigant to submit a motion for the Hearing Officer to certify a 
decision for interlocutory review by the Administrator, and the Hearing 
Officer must grant the motion in order for any review by the 
Administrator to occur. NCU requests that Bonneville revise the rule to 
allow a Litigant to appeal an issue directly to the Administrator if 
the Hearing Officer denies a Litigant's motion for certification. Id.
    As the rule states, interlocutory appeal is discouraged. Bonneville 
included the ``certification'' requirement in the proposed rule to 
provide more guidance with respect to the process for seeking 
interlocutory appeal and to have the Hearing Officer assess whether 
appeal is justified based on specific criteria set forth in the rule. 
If the Hearing Officer finds that the appeal does not meet those 
criteria, the consideration of interlocutory review ends. The Hearing 
Officer acts as a gatekeeper to ensure that the Administrator is not 
burdened with unwarranted requests. Allowing Litigants to appeal 
directly to the Administrator notwithstanding the Hearing Officer's 
denial of certification would undermine the certification requirement. 
Bonneville has not made this proposed change.

Section 1010.12 Clarification Sessions and Data Requests

a. Section 1010.12(a) Clarification Sessions
    NCU seeks clarification of Section 1010.12(a)(1) that statements 
made during clarification sessions may be used for the limited purpose 
of impeachment on cross-examination and as a basis for data requests. 
NCU Comments at 10-11. Clarification sessions are not transcribed or 
otherwise recorded. Parties, however, may submit data requests about 
statements made in clarification sessions, subject to the limitations 
of the rules. Absent a data response regarding such statements, using 
alleged statements from clarification sessions for purposes of 
impeachment during cross-examination would be problematic because of 
the lack of a record of such statements. If a Party believes that it 
might want to use such a statement as part of its case, it may submit a 
data request to confirm the statement in writing. The Hearing Officer 
will decide all issues regarding data requests based on the 
circumstances at the time.
b. Section 1010.12(b) Data Requests and Responses
    Multiple entities commented on the proposed rules governing data 
requests, which included significant changes to the existing rules. 
Within the last four or five section 7(i) rate proceedings, Bonneville 
has had multiple experiences of a single Party in the proceeding 
submitting hundreds of data requests to Bonneville on a single issue. 
In the most recent rate proceeding, a Party submitted significant 
numbers of data requests to parties other than Bonneville, and the 
Hearing Officer was required to resolve a contentious dispute over 
requests that raised issues about, among other things, the potential 
disclosure of commercially sensitive information to a business 
competitor. Bonneville has drawn upon these experiences in developing 
the proposed revisions to the rules governing data requests and has 
attempted to balance (1) the need for procedures that facilitate the 
submission of data requests that could help further the development of 
a full and complete record, with (2) the discouragement of requests 
that are disproportionate to the needs of the case or the efficient 
completion of the section 7(i) process. Several commenters acknowledged 
Bonneville's attempt to strike such a balance, but the comments reveal 
differing perspectives on issues related to that balance, such as the 
scope of permissible data requests, access to commercially sensitive 
information, and the treatment of claims of privilege.
1. Section 1010.12(b)(1) Scope in General
    Section 1010.12(b)(1) of the proposed rules allows data requests 
``relevant to any issue in the proceeding'' and includes factors that 
are intended to help otherwise define the scope of permissible data 
requests and ensure that such requests are proportional to the needs of 
the case. Section 1010.12(b)(1)(i) of the proposed rules requires each 
Litigant to be ``reasonable'' in the number and breadth of its data 
requests in consideration of these factors, and Section 1010.12(e)(4) 
requires the Hearing Officer to consider these factors in deciding any 
motion to compel. The Public Power Council, Eugene Water & Electric 
Board, Seattle

[[Page 39996]]

City Light, Public Utility District No. 1 of Snohomish County, PNGC 
Power, Northwest Requirements Utilities, and Western Public Agencies 
Group (``Joint Customers'') note that the factors in Section 
1010.12(b)(1) and (e)(4) appear to limit the scope of discovery and 
prevent abuse and suggest that Bonneville acknowledge this intent in 
the Final FRN. Joint Customers Comments at 2. They believe such an 
acknowledgement would assist the Hearing Officer in applying Section 
1010.12. Other commenters made similar suggestions that Bonneville 
comment on or clarify the potential application of the rules under 
specific scenarios that could arise in the future. Bonneville is not 
addressing any specific scenario in this notice or determining how the 
Hearing Officer should resolve any specific issue. In principle, 
however, Bonneville agrees that its comments regarding the intent of 
the rules could prove useful for parties and the Hearing Officer in the 
future. The Joint Customers' observations about the intent behind the 
factors included in Section 1010.12(b)(1) and (e)(4) are correct: Those 
factors are intended by Bonneville to limit the scope of discovery and 
prevent abuse.
    Powerex comments that the relevancy standard in Section 
1010.12(b)(1) creates the ``potential for broad, invasive, and 
burdensome discovery'' and that such a standard could be applied in a 
manner at odds with Bonneville's statutory requirement to conduct 
section 7(i) proceedings expeditiously and develop a full and complete 
record. Powerex Comments at 2. Powerex also maintains that the scope of 
data requests under Section 1010.12(b)(1) appears to be substantially 
broader than the statutory requirement that the hearing give parties 
``adequate opportunity to offer refutation or rebuttal of any material 
submitted by any other person. . . .'' Id. quoting 16 U.S.C. 
839(e)(i)(2)(A). Powerex believes that the factors limiting the scope 
of discovery and preventing abuse are necessary for conducting 
expeditious hearings and for reducing the disincentive to participate 
in Bonneville's proceedings.
    Bonneville appreciates Powerex's concern about broad, invasive, and 
burdensome data requests. All of the provisions in Section 
1010.12(b)(1) are intended to comprehensively define the scope of 
permissible data requests. The relevancy standard for data requests was 
the subject of significant debate within Bonneville and among 
stakeholders. Bonneville ultimately opted for allowing data requests 
relevant to any issue in the proceeding, as limited by other aspects of 
the rules. This includes the requirement that each Litigant must be 
``reasonable'' in the number and breadth of its requests. Bonneville 
intentionally used ``breadth'' in Section 1010.12(b)(1)(i) because that 
term could encompass a variety of situations or requests (or patterns 
of requests) of an objectionable nature. Moreover, by allowing a 
Responding Litigant to object to an ``unreasonable'' request or pattern 
of requests, Section 1010.12(b)(1)(i) is intended to help ensure that a 
Requesting Litigant will observe its obligation with respect to 
reasonableness at the time it is submitting requests. In the event of a 
dispute over a data request, Section 1010.12(e)(2) explicitly places 
the burden on a Litigant filing a motion to compel to demonstrate that 
the request is within the scope of Section 1010.12(b)(1). This includes 
demonstrating that the request is reasonable. Bonneville believes these 
limitations help limit the potential for broad, invasive, and 
burdensome data requests.
    Bonneville disagrees that the provisions in Section 1010.12(b)(1) 
are inconsistent with the Northwest Power Act's requirements to conduct 
proceedings expeditiously, develop a full and complete record, and 
provide an adequate opportunity to rebut any other person. See Powerex 
Comments at 2. As described above, Bonneville's goal in this section 
was to create a balance that implements and adheres to those standards.
    NCU urges Bonneville to revise the factor in Section 1010.12(b)(1) 
that considers ``the extent of the Responding Litigant's testimony on 
the subject.'' NCU Comments at 7. NCU maintains that the focus on the 
extent of a Litigant's testimony is an ``inferior proxy for the extent 
of a Responding Litigant's stake in the outcome of the issue.'' Id. It 
suggests revising the rule to refer to the Litigant's stake in the 
outcome.
    Bonneville has not adopted the revision suggested by NCU. 
Bonneville is concerned that the concept of a Litigant's ``stake'' in 
an issue is ambiguous and would be difficult to assess by an objective 
measure using available information. This would pose problems for the 
Hearing Officer in resolving disputes over data requests and for 
Litigants submitting those requests in the first place. Indeed, because 
the factors in Section 1010.12(b)(1) help define the scope of 
permissible data requests, a Litigant should consider those factors 
when drafting and submitting a data request. It is unclear how a 
Litigant could know another Litigant's ``stake'' in the outcome of an 
issue at the time of the request. In contrast, both a Litigant 
submitting a data request and a Hearing Officer addressing a dispute 
over a request can easily assess the extent of a Litigant's testimony 
on an issue.
    As an alternative to its suggestion to replace the factor referring 
to ``the extent of the Responding Litigant's testimony,'' NCU asks 
Bonneville to clarify that a Party cannot avoid producing relevant 
information solely by claiming that it has not offered testimony on the 
subject. Id. at 8. In response, the extent of a Litigant's testimony is 
just one of the factors for the Hearing Officer to consider when 
resolving data request issues, but this factor is intended to provide a 
Party some ability to manage the extent of its exposure to data 
requests. The scope in Section 1010.12(b)(1) is not so broad as to 
expose a Party to broad or invasive requests about every issue in the 
proceeding simply because the Party intervened. In addition, although 
nothing in the rules prohibits submitting a data request to a Litigant 
about another Litigant's testimony, Bonneville expects that, absent 
unusual circumstances, a request will seek information relevant to 
issues raised in the testimony of the Litigant to which the request is 
submitted.
    NCU also raises an issue related to a dispute over the scope of 
data requests in the BP-18 rate proceeding, arguing that Bonneville had 
``promised'' to address the issue in the revision of the procedural 
rules. NCU Comments at 15. The issue in BP-18 stemmed from the Hearing 
Officer's denial of a motion to compel filed by Joint Party 3 
(``JP03''), which consisted of the same entities that comprise NCU. In 
the order denying the motion to compel, the Hearing Officer found that 
for ``information to be relevant in a rate proceeding, it must fall 
within the scope of the testimony put forward by the witness and the 
information used by the witness to produce that testimony.'' Order on 
JP03 Motion to Compel JP01's Response to Data Requests, BP-18-HOO-21, 
at 2. NCU argued in BP-18 that requiring information to be ``used by'' 
a witness to be relevant and subject to data requests created the 
potential to shield information from discovery by not providing it to a 
witness. The BP-18 Final Record of Decision acknowledged this issue and 
stated that ``Staff and stakeholders should consider these arguments in 
the review of Bonneville's procedural rules after the BP-18 proceeding 
has concluded.'' Administrator's Final Record of Decision, BP-18-A-04, 
at 183-84.

[[Page 39997]]

    As an initial matter, Bonneville did not ``promise'' that the 
revised procedural rules would expressly address this issue. See NCU 
Comments at 15. The Final Record of Decision instructed Staff and 
stakeholders to consider NCU's arguments as part of the process for 
revising the procedural rules, and all stakeholders have now had 
opportunity to advocate for what they believe the rules should include. 
Whereas the previous rule governing data requests includes relatively 
undefined language that had not been interpreted in detail since it was 
adopted, Staff and stakeholders have had considerable discussion about 
the language in the revised rules and the attempts to strike the right 
balance concerning data requests.
    As for the specific issue NCU raises, Section 1010.12(b)(1) defines 
the scope of permissible data requests, and nothing in that section 
explicitly excludes information or materials from that scope solely 
because a witness did not use or rely on that information or material 
in the development of his or her testimony. The final rule is not 
intended to limit data requests to only the information that a witness 
relied on in developing testimony. However, Bonneville expects that the 
Hearing Officer will resolve any dispute over data requests based on 
all of the facts and information available at the time.

    Avangrid/IOU notes Section 1010.12(b)(1)(vi) of the proposed 
rules, which provides: 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.

    Avangrid/IOU Comments at 3 (emphasis added). Avangrid/IOU believes 
this language is too broad and suggests the following language:

    Bonneville shall not be required to produce documents that, in 
the opinion of Counsel for Bonneville, would be determined to 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.

    Id. at 3-4. This is a reasonable suggestion for clarification of 
this provision; however, Bonneville must be mindful not to predetermine 
the applicability of any particular exemption under the Freedom of 
Information Act (``FOIA'') before it receives an actual FOIA request. 
Bonneville has revised the final rule to be more consistent with the 
language used in the existing rule. Under this subsection, Bonneville's 
Counsel will make a good faith effort to make a reasonable 
determination.
2. Section 1010.12(b)(2) Submitting Data Requests
    Avangrid/IOU suggests Section 1010.12(b)(2)(i) of the proposed 
rules should be revised as follows:
    A Data Request must identify the Prefiled Testimony and Exhibits 
(page and line numbers insofar as is practicable) or other material 
addressed in the request.
    Avangrid/IOU Comments at 4. Avangrid/IOU notes that it may be 
impracticable to specify a page and line number in a data request if, 
for example, a data request asks where in a prefiled testimony or 
exhibit a topic is addressed. Id. Although Bonneville understands the 
intent behind the proposed revision, it is important that Litigants 
specifically identify the source material to which a data request is 
addressed. Avangrid/IOU's proposed language could be interpreted to 
allow Parties to ignore the basic rule and determine independently that 
a specific citation was not ``practicable.'' Therefore, Bonneville will 
not adopt the proposed language. However, in the event the source 
material cannot be cited by page and line number, Litigants must take 
steps to ensure the material is cited in a manner that allows the 
Responding Litigant to easily identify it.
    NCU takes issue with Section 1010.12(b)(2)(iii) of the proposed 
rules, which prohibits submitting data requests to any Litigant but 
Bonneville during the period immediately following Bonneville's initial 
proposal. NCU Comments at 11-12. NCU maintains that Bonneville has not 
explained the reason for this limitation and that the rule could make 
the hearing process less efficient and fair. Id. at 11.
    One of the themes that has emerged during discussions about the 
revising the procedural rules is that Bonneville should be the primary 
focus of data requests submitted by a Party in a section 7(i) 
proceeding. The comments of the Joint Customers and Powerex make clear 
their concerns about rules that create opportunities for expansive or 
invasive Party-to-Party data requests, particularly among competitors. 
Bonneville takes those concerns seriously. Moreover, Bonneville shares 
the perspective that Bonneville should be the primary focus in section 
7(i) proceedings, particularly during the period after publishing its 
initial proposal.
    Bonneville adopted the limitation in Section 1010.12(b)(2)(iii) of 
the proposed rules out of concern that Litigants other than Bonneville 
potentially could be exposed to data requests over a lengthy period of 
time at a point in the proceeding when the Parties must be preparing 
their answering cases to Bonneville's extensive initial proposal. The 
testimony in Bonneville's initial proposal is the only testimony that 
would have been filed at this point. The circumstances that would 
justify a Party submitting data requests about Bonneville's initial 
proposal to a Litigant other than Bonneville would be rare.
    Bonneville acknowledges that Party-to-Party data requests about 
Bonneville's initial proposal have not been an issue in previous 
section 7(i) proceedings, but this is because such requests have never 
been submitted in the 38-year history of such proceedings. As explained 
above, however, Bonneville has seen use of the data request procedures 
in the last several rate proceedings that it would not have 
contemplated, and this is one area where Bonneville feels it is 
appropriate to exercise its discretion over the rules governing data 
requests to address this concern even if the specific situation has not 
yet presented itself.
    NCU's primary point is that a blanket prohibition on the submission 
of Party-to-Party data requests immediately following the initial 
proposal is overly restrictive, because a Responding Party will still 
have the opportunity to raise all applicable objections to a request. 
NCU Comments at 12. Bonneville is concerned about adopting rules that 
may increase the likelihood of disputes over data requests at a time in 
the proceeding when Parties are preparing their direct testimony, but 
NCU's point that a blanket prohibition lacks balance has merit. There 
could be limited circumstances when Party-to-Party data requests 
immediately following the publication of Bonneville's initial proposal 
might be appropriate, and a Party should not be foreclosed from the 
opportunity to submit such requests if it would be essential to the 
development of the Party's case. Bonneville has made changes in the 
final rule to provide the opportunity to seek leave from the Hearing 
Officer to submit such requests in limited circumstances. To be clear, 
the standard for justifying the need for such requests has 
intentionally been set very high, and Bonneville believes that the 
circumstances in which such requests would be justified are rare.
    NCU also requests clarification that the requirement in Section 
1010.12(b)(2)(iv) that subparts of a data request ``must address only 
one section or other discrete portion of a Litigant's Prefiled 
Testimony and Exhibits'' was not intended to require that the data 
requests must be directed to the

[[Page 39998]]

Responding Litigant's testimony. Id. NCU correctly notes that the 
intent of this provision is to ensure that the subparts of a multipart 
data request are limited in number and related to the same general 
subject matter.
3. Section 1010.12(b)(3) Responding to Data Requests
    Powerex notes that Section 1010.12(b)(3)(iii) of the proposed rules 
provides that as soon as a Responding Litigant believes it will not be 
able to respond to one or more data requests by the due date because 
``of the volume of or other burden caused by the request(s),'' the 
Responding Litigant must contact the Requesting Litigant and confer 
about a possible delay in the due date. Powerex Comments at 4. If the 
Litigants have not resolved the issues by the due date, the Responding 
Litigant must object and then supplement the objection with a response 
in good faith as soon as possible thereafter. Id. Powerex notes the 
rules provide that a Responding Litigant has five business days to 
respond to a data request, but Section 1010.12(b)(3)(iii) permits 
informal extension of that deadline to some undefined time to allow 
Responding Litigants to respond to broad and/or voluminous data 
requests. Id. Powerex believes only the Hearing Officer has authority 
to extend the due date of a data response. Id. Powerex also suggests 
that, in such circumstances, the Litigants should confer about the 
scope and burden of the data request(s) and seek to refine the 
request(s) to permit production within the five-day response period. 
Id.
    Bonneville has revised Section 1010.12(b)(3)(i) to clarify that 
Litigants attempting to resolve a data request dispute also have the 
ability to agree to a response date outside the five-day deadline. 
Although Powerex is correct to be concerned about an extension 
resulting in a response being received too late to be incorporated into 
a Litigant's testimony, Bonneville believes this will be avoided by the 
Litigants' resolution of the issue; in other words, a Requesting 
Litigant would not agree to a date for a response that would arrive too 
late to be used. In the event the Litigants cannot resolve the response 
date, the Hearing Officer would resolve the issue based on a motion 
filed by the Requesting Litigant and a response filed by the Responding 
Litigant.
4. Section 1010.12(c) Information That Is Attorney-Client Privileged or 
Attorney Work Product
    Section 1010.12(c) of the proposed rules provides that a Litigant 
may be required to identify materials that the Litigant has withheld 
from a response to a data request on the basis of the attorney-client 
privilege or the work product doctrine. This section also prohibits the 
Hearing Officer, however, from ordering an in camera review or 
releasing such information.
    NCU requests clarification that the Hearing Officer may apply the 
sanctions provided for in Section 1010.12(f) if he or she determines 
that the Responding Litigant's claim of privilege is unsubstantiated. 
NCU Comments at 13. The proposed rule governing attorney-client 
privilege and work product information intentionally limits the Hearing 
Officer's ability to order the review or disclosure of such 
information. Bonneville believes that disputes about materials that are 
claimed to be attorney-client privileged or attorney work product are 
unlikely to be a productive use of resources, particularly given the 
requirement that, upon request, Counsel for a Responding Litigant must 
declare under penalty of perjury that the materials are protected from 
disclosure.
    Bonneville believes that a sworn declaration provided by Counsel 
for a Responding Litigant should be sufficient to address any questions 
about claims of privilege or work product in almost all cases. 
Nevertheless, if a Requesting Litigant believes that the information 
provided in such a declaration is unsubstantiated, nothing in the rules 
prohibits the Requesting Litigant from filing a motion to compel. If 
the Hearing Officer were to grant the motion to compel, failure to 
comply with the Hearing Officer's order would be a basis to impose 
sanctions under Section 1010.12(f).
5. Section 1010.12(d) Commercially Sensitive Information and Critical 
Energy/Electric Infrastructure Information
    Powerex urges revision of the proposed rules related to 
commercially sensitive information (``CSI''). Powerex Comments at 3. 
Powerex argues that the permissiveness of the rules threatens the 
development of a full and complete record because parties are less 
likely to fully participate to avoid having to produce commercially 
sensitive information in response to data requests. Id.
    The production of commercially sensitive information has not been a 
significant issue in most section 7(i) proceedings. Other than a 
provision allowing the Hearing Officer to adopt a protective order, the 
previous rules do not address the disclosure of such information. In 
response to the discovery dispute in the BP-18 proceeding, described 
above, the final record of decision identified the requirements around 
commercially sensitive information as one of the topics to address in 
the revision of the procedural rules. Administrator's Final Record of 
Decision, BP-18-A-04, at 185.
    The proposed rules require the disclosure of commercially sensitive 
information (for a data request that is otherwise within the scope), 
subject to a protective order. The rules specify certain requirements 
that Bonneville needs in any protective order for procedural reasons, 
but the rules otherwise provide for the Requesting and Responding 
Litigants to negotiate the terms of the order. Notwithstanding the 
rules providing for disclosure of commercially sensitive information, 
subsection (d)(3) discourages the use of such information in any filing 
because of the administrative burden associated with having such 
information in the record.
    Powerex urges revising the rules to discourage both the discovery 
and use of commercially sensitive information in section 7(i) 
proceedings. Id. Bonneville has made no changes in response to 
Powerex's comments but acknowledges the concerns about discovery of 
commercially sensitive information. Bonneville does not typically 
designate information or materials as commercially sensitive in 
response to data requests, so the primary concern here relates to 
disclosure of commercially sensitive information by a Party. Some 
aspects of the revised rules should help to address such concerns. 
First, given the primary focus on Bonneville's proposals in section 
7(i) proceedings, only unusual circumstances would make it important to 
seek a Party's commercially sensitive information to assess a 
Bonneville proposal. All Litigants should be particularly attentive to 
the requirement to be ``reasonable'' in the breadth of a request that 
might seek commercially sensitive information, particularly for a 
request to a competitor. Section 7(i) proceedings are not a forum to 
seek information to adjudicate the status of particular persons or 
practices or to gain strategic advantage over competitors. Bonneville 
will monitor this issue in upcoming proceedings to assess whether 
revisions to the rules are necessary to prevent abuse.
    Second, in many types of administrative proceedings, protective 
orders are commonly used to protect against unauthorized disclosure or 
misuse of confidential information provided in response to data 
requests. For the most part, the rules put the

[[Page 39999]]

terms of that protective order in the hands of the Requesting and 
Responding Litigants. The rules allow the Responding Litigant to make a 
proposal for almost all of the substantive terms of the protective 
order, which should provide the opportunity to develop acceptable 
terms.
    Third, the rules provide for a ``highly confidential'' designation 
for information or materials that require heightened protection. 
Furthermore, the rules authorize the Hearing Officer, as a form of 
heightened protection, to allow the Responding Litigant to withhold the 
information altogether. In other words, a Litigant will have the 
opportunity to convince the Hearing Officer that the sensitivity of 
particular information justifies excusing the Responding Litigant from 
disclosing the information.
    Finally, Powerex urges Bonneville to revise Section 1010.13(f) to 
disallow the Hearing Officer to impose sanctions under certain 
circumstances. Powerex Comments at 3-4. Powerex maintains that ``if a 
party files no testimony or its filed testimony does not rely on or 
reference CSI, then the responding party should not be penalized for 
protecting its own legitimate business interests when it refuses to 
produce CSI.'' Id. at 3. Powerex's proposal would be unworkable as it 
relates to the provisions of the rules governing disputes over data 
requests and motions to compel. If the Hearing Officer grants a motion 
to compel a Responding Litigant to produce commercially sensitive 
information in response to a data request, permitting a Litigant to 
refuse to comply with the order would undermine the rules that govern 
disputes over data requests. Bonneville has not adopted Powerex's 
suggestion for this reason.
    With respect to Powerex's concern about being required to disclose 
commercially sensitive information in a situation where a Litigant 
files no testimony or does not rely on such information, the rules 
already require consideration of that factor in assessing whether a 
request is within the scope established in Section 1010.12(b)(1) and is 
``reasonable'' under Section 1010.12(b)(1)(i). In addition, Section 
1010.12(e)(4) requires the Hearing Officer to consider that factor in 
resolving a motion to compel. As described above, that factor is 
intended to provide a Litigant some ability to manage its exposure to 
data requests. A Litigant that is concerned about potentially having to 
provide commercially sensitive information in response to a data 
request certainly should not put that information at issue in its 
testimony. Bonneville is not directly addressing the specific situation 
that Powerex raises. The Hearing Officer will resolve any dispute over 
data requests based on the facts and information available at the time.
    In considering Powerex's comments and an NCU comment that 
Bonneville addresses in the next section, Bonneville found that the 
reference in Section 1010.12(e)(4) to whether a Litigant filed 
testimony related to the data request effectively repeated the factor 
in Section 1010.12(b)(1) referring to ``the extent of the Responding 
Litigant's testimony on the subject.'' Bonneville has removed the 
reference in Section 1010.12(e)(4) of the final rules, but the intent 
of this provision has not changed. In resolving a motion to compel, the 
Hearing Officer must consider the extent of a Litigant's testimony as 
one of the factors under Section 1010.12(b)(1).
6. Section 1010.12(e)(4) Resolution of Dispute by the Hearing Officer
    Powerex notes that Section 1010.12(e)(4) provides that the Hearing 
Officer may hold a telephone conference ``to discuss and attempt to 
resolve a data request dispute . . .'' and suggests that Bonneville 
should clarify whether the rules allow or intend the Hearing Officer to 
rule on motions to compel orally during teleconferences, and if so, the 
rules should clarify how the Hearing Officer must document such an 
order. Powerex Comments at 4. Powerex states that the rules should 
clarify that a Hearing Officer's order on a motion to compel should be 
memorialized in writing if either Party so requests, in order to 
provide adequate opportunity for appeal, if necessary. Id. Bonneville 
believes the Hearing Officer should have the authority to orally rule 
on a data request dispute, including a motion to compel, during a 
teleconference. Bonneville also agrees that any oral ruling by the 
Hearing Officer in a teleconference must be memorialized in writing, 
regardless of whether a Party so requests. All Litigants should be able 
to know the resolution of discovery disputes arising during the 
proceeding. Section 1010.12(e)(4) has been revised accordingly.
    Powerex also suggests that Bonneville should clarify whether 
Section 1010.19, governing telephone conferences, applies to telephone 
conferences attempting to resolve data request disputes. Powerex 
Comments at 4. Section 1010.19 provides:

    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 1010.19 does not apply to conferences under Section 
1010.12(e)(4) to resolve data request disputes. Section 1010.19 is 
intended to apply to telephone conferences regarding issues in which 
all Litigants might have an interest and which all Litigants should 
have the opportunity to attend. Data request disputes should be 
resolved, if possible, by the Litigants involved in the dispute and the 
Hearing Officer. As such, conferences to address data request disputes 
should not be subject to the notice and other requirements in Section 
1010.19. Conferences regarding such disputes should involve only 
matters of procedure and not substantive matters that would result in 
ex parte communications with the Hearing Officer. In the event that 
communications relevant to the merits of any issue in the proceeding 
are made to the Hearing Officer during such a conference, the 
requirements of Section 1010.5(f) apply. Section 1010.12(e)(4) has been 
revised to remove the reference to a ``telephone'' conference to 
reflect that the requirements of Section 1010.19 do not apply to 
conferences regarding data request disputes.
    NCU urges Bonneville to modify Section 1010.12(e)(4) to require the 
Hearing Officer to consider a Litigant's ``stake in the outcome'' of an 
issue in deciding a motion to compel rather than whether the Litigant 
``filed testimony related to the data request'' before it received the 
request. NCU Comments at 14-15. NCU raises the same concern that it did 
under Section 1010.12(b)(1), discussed above. Bonneville is not 
adopting this factor for the reasons discussed previously.

Section 1010.13 Prefiled Testimony and Exhibits

    Avangrid/IOU suggests Section 1010.13(a)(5) of the proposed rules 
should be revised as follows:

    Rebuttal testimony must insofar as is practicable refer to the 
specific material being addressed (pages, lines, topic).

    Avangrid/IOU Comments at 4. Avangrid/IOU notes that it may be 
impracticable to specify pages and lines being addressed--for example, 
if the rebuttal testimony points out that the testimony being rebutted 
fails to address a factor. Id. Although Bonneville understands the 
intent of Avangrid/IOU's proposed revision, it will not be adopted for 
the reasons stated in

[[Page 40000]]

response to Avangrid/IOU's comments on Section 1010.12(b)(2)(i) above. 
If the testimony being rebutted fails to address a factor, a Litigant 
should cite where the other factors are addressed.

Section 1010.14 Cross-Examination

    Avangrid/IOU notes Section 1010.14(k)(1) of the proposed 
procedures:
    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.
    Avangrid/IOU Comments at 4. Avangrid/IOU suggests that this 
sentence be clarified to explain how a Cross-Examination Exhibit is to 
be filed. Id. In response, Section 1010.10(a) of the proposed rules 
provides that ``[u]nless otherwise specified, a Litigant shall make any 
filing provided for by these rules with the Hearing Officer through the 
Secure Website.'' This provision governs the manner in which Cross-
Examination Exhibits are to be filed.

Section 1010.20 Hearing Officer's Recommended Decision

    NCU argues that the Hearing Officer should issue a recommended 
decision in Bonneville's rate cases. NCU Comments at 22-24. NCU 
suggests this would ensure that the first look at the Bonneville 
staff's proposal would be an independent one, not influenced by 
communications from the same Bonneville staff advocating for its 
adoption. Id. at 22. This proposal, however, is not supported by the 
language or the intent behind section 7(i) of the Northwest Power Act 
and is contrary to 38 years of administrative practice.
    Section 7(i) of the Northwest Power Act prescribes the procedures 
Bonneville uses to establish its power and transmission rates. 16 
U.S.C. 839e(i). Section 7(i) provides that, when establishing rates, 
``[o]ne or more hearings shall be conducted as expeditiously as 
practicable by a Hearing Officer to develop a full and complete record 
and to receive public comment in the form of written and oral 
presentation of views, data, questions, and argument related to such 
proposed rates.'' Id. Thus, the Hearing Officer's role in the section 
7(i) ratemaking hearings is to develop the record. Section 7(i) does 
not grant the Hearing Officer the authority to make any decision 
regarding the merits of the issues in the ratemaking proceedings, nor 
to make any substantive or recommended decision on the merits.
    This is in contrast to Section 212 of the Federal Power Act, which 
provides that when the Bonneville Administrator provides an opportunity 
for a hearing under section 7(i)(1)-(3) of the Northwest Power Act, 
``the hearing officer shall . . . make a recommended decision to the 
Administrator that states the hearing officer's findings and 
conclusions, and the reasons or basis thereof, on all material issues 
of fact, law, or discretion presented on the record . . . .'' 16 U.S.C. 
824k(i)(2)(A)(ii)(II) (emphasis added). Congress explicitly requires a 
Hearing Officer to make a recommended decision to the Administrator in 
a section 212 proceeding, but there is no such requirement for the 
Hearing Officer in Bonneville's power and transmission rate cases.
    Furthermore, as noted previously, the adjudication requirements of 
the Administrative Procedure Act do not apply. The Northwest Power Act 
explicitly provides that ``[n]othing in this section shall be construed 
to require a hearing pursuant to section 554, 556, or 557 of title 5.'' 
16 U.S.C. 839f(e)(2). The legislative history confirms that ``[t]he 
adjudication provisions of 5 U.S.C. 554 and 557 do not apply to 
hearings under this bill.'' H.R. Rep. 96-976, Pt. I, 96th Cong., 2d 
Sess. 71 (1980).
    Finally, sound decision-making regarding Bonneville's rates 
necessitates access to Bonneville staff with subject matter expertise. 
This is particularly necessary to determine whether Bonneville's rates 
are set to satisfy the applicable statutory requirements. It would be 
impractical for the Administrator to delegate substantive rate 
decision-making authority to the Hearing Officer or limit access to 
Bonneville staff expertise.
    NCU argues that despite the fact that section 7(i) does not mandate 
that a Hearing Officer issue a recommended decision, the functions of 
advising the agency head and litigating the rate case should be handled 
by separate personnel to preserve the actual and perceived fairness of 
the process. NCU Comments at 22-23. NCU also argues that having agency 
staff assist with preparing the Administrator's draft and final records 
of decision reduces the value of the rule prohibiting ex parte 
communications between Bonneville employees and the Hearing Officer. 
Id. at 24. Bonneville addressed NCU's comments regarding separation of 
functions and the ex parte rule in the discussion of Section 1010.5 of 
the rules above. Bonneville has been conducting section 7(i) 
proceedings to establish rates for almost 40 years and has not heard 
public concern about actual or perceived unfairness in those 
proceedings during that time. Bonneville is following the process 
prescribed by Congress to establish rates, and there is nothing novel 
or unfair about having agency staff prepare a rulemaking proposal and 
assist the decision-maker in developing a final proposal. Also, the 
Hearing Officer addresses only procedural matters in Bonneville's rate 
cases, so the rule prohibiting ex parte communications between 
Bonneville employees and the Hearing Officer only increases the value 
of Bonneville's ex parte rule compared to Bonneville's previous rules. 
Agency staff's work on records of decision does not reduce this value.
    NCU also argues that the reasonableness of Bonneville's 
transmission rates may be affected by the terms and conditions of its 
transmission services and vice versa, and having the Hearing Officer 
responsible for fashioning recommendations on both rates and terms and 
conditions of transmission service in a single recommended decision 
could reduce the potential for incompatible outcomes. NCU Comments at 
23. Bonneville believes NCU's concerns are best addressed on a case-by-
case basis rather than through general procedural rules. For example, 
the potential interrelationship between issues in a terms and 
conditions proceeding and a ratemaking proceeding could be addressed 
through the adjustment of the terms and conditions proceeding's 
procedural schedule. Although Bonneville believes that incompatible 
outcomes in the draft decisions in the two proceedings would be 
unlikely, the Administrator's authority with respect to final decisions 
on all issues would avoid any inconsistencies.
    NCU argues that Bonneville recognizes the benefits of having one 
decision-maker (the Hearing Officer) write a draft decision on terms 
and conditions while another decision-maker (the Administrator) writes 
the final opinion. Id. at 23-24. It is the law, however, that requires 
the Hearing Officer to write a recommended decision in the terms and 
conditions proceeding. Thus, Bonneville has not chosen to delegate 
authority to the Hearing Officer in a terms and conditions proceeding 
to write a recommended decision because of any particular ``benefits.'' 
This is the same reason Bonneville does not require a recommended 
decision for Bonneville's ratemaking; it is not required by law and was 
not intended by Congress.
    The Los Angeles Department of Water and Power (``LADWP'') 
encourages

[[Page 40001]]

Bonneville to revise Section 1010.20 to add the standard that the 
Hearing Officer will apply to make decisions on the terms and 
conditions of transmission service in section 212(i) proceedings. LADWP 
Comments at 1. The scope of the rules, which is set forth in Section 
1010.1(d), includes the ``procedures and processes'' for Bonneville 
proceedings. The rules do not establish substantive standards for the 
Administrator's final decisions in those proceedings. Adding a 
substantive standard for the Administrator's decisions would be at odds 
with the purpose of the rules. Bonneville is conducting a separate 
public process to discuss the use of FPA section 212(i) to adopt the 
terms and conditions of transmission service, and Bonneville encourages 
stakeholders to direct comments about the substantive standards for 
section 212(i) proceedings to that process.

Section 1010.21 Final Record of Decision

    Powerex notes that in Section 1010.21 governing Final Records of 
Decision, Bonneville deleted the requirement that any Final Record of 
Decision (either in a rate case or a section 212(i) hearing) should set 
forth the reasons for reaching any findings and conclusions or a full 
and complete justification for the rates. Powerex Comments at 4. 
Powerex suggests that Bonneville retain the deleted language or clarify 
why it should be deleted. Id. As described in the preceding paragraph, 
the rules establish the procedures governing the conduct of section 
7(i) proceedings, not the substantive standards for deciding any issue 
in such proceedings on the merits. Removing substantive standards for 
the Administrator's decisions is consistent with the purpose of the 
rules.

Miscellaneous

    Mr. Charles Pace states that Bonneville appears to be conflating 
the section 7(i) Bonneville ratemaking and section 212 transmission 
terms and conditions proceedings without providing a cogent reason for 
doing so. Pace Comments at 1. Bonneville, however, is not conflating 
the ratemaking proceedings with section 212 terms and conditions 
proceedings. To the contrary, each type of proceeding is conducted 
independently based on its particular subject matter and in a separate 
docket. The fact that the two proceedings are conducted using most of 
the same provisions of Bonneville's section 7(i) procedures does not 
mean the substantive proceedings are the same.
    Mr. Pace suggests that the section 7(i) ratemaking process will be 
used to divert attention from the section 212 terms and conditions 
process, and vice versa. Id. This argument is unclear. Each proceeding 
will receive the same ``attention'' because Bonneville will publish 
separate notices in the Federal Register for each proceeding, and each 
hearing will be conducted by an independent Hearing Officer with the 
intervening Litigants.
    Mr. Pace states that the procedural rule revisions are intended to 
devise a ``crosswalk'' between the section 7(i) ratemaking and section 
212 terms and conditions proceedings that allows Bonneville to avoid 
compliance with the requirements of both. Id. This argument is also 
unclear. Bonneville's procedures simply establish the rules by which 
the respective proceedings are conducted. Bonneville must still comply 
with all statutory requirements regarding the establishment of rates 
and all statutory requirements regarding the establishment of 
transmission terms and conditions. The procedures do not allow 
Bonneville to avoid compliance with any applicable substantive 
statutory standards.
    Mr. Pace states that the ratemaking process envisioned by Congress 
is ``infused'' with direct public involvement, but that this is not 
reflected in the rules of procedure, which are therefore contrary to 
law. Id. To the contrary, Bonneville's procedural rules are designed to 
implement, and supplement, the procedural requirements of section 7(i) 
of the Northwest Power Act for Bonneville's ratemaking and terms and 
conditions proceedings. The rules allow formal public participation in 
the section 7(i) ratemaking hearings by Bonneville and intervening 
Parties. See Section 1010.6. The rules also allow informal 
participation in the ratemaking process by members of the general 
public. See Section 1010.8. Members of the general public, called 
``participants,'' may submit written comments regarding Bonneville's 
ratemaking for the record or present oral comments in legislative-style 
hearings when scheduled. Id. In the event new issues arise after a 
deadline for participant comments, the Hearing Officer may extend the 
deadline for such comments. Id. Also, participant comments are made 
available on Bonneville's website. Id. Bonneville believes these 
provisions enable and encourage direct public involvement in 
Bonneville's ratemaking.
    The Joint Customers urge Bonneville to closely monitor the hearing 
officer's interpretation of the rules in the BP-20 and TC-20 
proceedings and correct any misapplication of the rules in the agency's 
records of decision or through subsequent revisions. Joint Customers 
Comments at 2. They note that although having durable, predictable 
procedural rules is important to all Litigants, Bonneville should 
update the rules as regularly as necessary to keep them robust and up-
to-date. Id. Bonneville agrees that the BP-20 and TC-20 proceedings 
will be the first proceedings in which Bonneville will implement the 
new procedural rules. Only by using the rules in actual proceedings 
will Bonneville be able to identify any problems. For this reason, 
Bonneville will monitor the implementation of the rules in the BP-20 
and TC-20 proceedings, and in subsequent proceedings, and will address 
any problems in records of decision or through revisions of the rules.

Part III--Final 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
    (h) Ex Parte Communications not included in the Record
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

[[Page 40002]]

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; or
    (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.
    (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 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 
meanings specified below.
    (a) ``Administrator'' means the Bonneville Administrator or the 
acting Administrator.
    (b) ``Bonneville'' 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.

[[Page 40003]]

    (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[dash]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 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 with questions about administrative issues should 
contact 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, 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

[[Page 40004]]

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;
    (8) Between the Hearing Officer and Hearing Clerk or other staff 
supporting the Hearing Officer; or
    (9) Oral or written statements in meetings for which reasonable 
prior notice has been given.
    (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 prior 
notice to all Parties of any meeting that it intends to hold with any 
customer, 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.
    (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 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 Bonneville's 
website. Any such motion shall include a copy of the Ex Parte 
Communication at issue. 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.
    (h) Ex Parte Communications not included in the Record. No Ex Parte 
Communication will be included in the Record except as allowed by the 
Hearing Officer in an order granting a motion filed pursuant to 
paragraph (g) of this section.

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.

[[Page 40005]]

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 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[dash]point Times New Roman (10[dash]point 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, that 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

[[Page 40006]]

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 withheld on the basis of 
exemptions 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) Except as allowed by the Hearing Officer pursuant to this 
Section 1010.12(b)(2)(iii), during the period established in the 
procedural schedule for submitting Data Requests immediately following 
the filing of Bonneville's Initial Proposal, a Party may submit Data 
Requests only to Bonneville. The Hearing Officer may allow the 
submission of limited Data Requests to a Party during such period upon 
motion by a Litigant providing the proposed Data Request(s) and 
demonstrating that: (1) The proposed Data Request(s) are within the 
scope described in paragraph (b)(1) of this section; (2) Bonneville is 
unlikely to have the requested information or materials in its 
possession; and (3) the Litigant's ability to develop its direct case 
would be significantly prejudiced without the requested information or 
materials. In resolving a motion filed pursuant to this Section 
1010.12(b)(2)(iii), the Hearing Officer shall consider, among other 
things, the factors listed above, the number of proposed Data Requests, 
and whether the burden of responding to the requests would prejudice 
the Responding Litigant's ability to prepare such Litigant's direct 
case.
    (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 allowed by the Hearing Officer or as 
provided in paragraph (b)(3)(iii) of this section, 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 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.

[[Page 40007]]

    (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 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 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 and the potential 
impact of the decision on completing the proceeding according to the 
procedural schedule. For any oral ruling made by the Hearing Officer 
during a conference, the Hearing Officer shall memorialize that ruling 
in a written order as soon as practicable thereafter.
    (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 admit the response, 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

[[Page 40008]]

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 exhibits 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 stricken 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 allowed by the Hearing Officer, witnesses 
generally will 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:
    (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.

[[Page 40009]]

    (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 otherwise 
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.

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 to 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.

[[Page 40010]]

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
----------------------------------------------------------------------------------------------------------------
XX-XX-E-XX-01........................  Direct Testimony.......  mm/dd/yyyy.............  Admitted.
XX-XX-E-XX-02........................  Rebuttal Testimony.....  mm/dd/yyyy.............  Rejected.
----------------------------------------------------------------------------------------------------------------

End of Brief Template

    Issued this 2nd day of August, 2018.
Elliot E. Mainzer,
Administrator and Chief Executive Officer.
[FR Doc. 2018-17223 Filed 8-10-18; 8:45 am]
 BILLING CODE 6450-01-P