Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Notices 39993 

Lackland Air Force Base, Texas 78236– 

9853. 

Both the courier address and U.S. 

Postal Service address are listed on the 

project website (www.AFRC-F35ABeddown.com), which also provides 

more information on the Environmental 

Impact Statement and related materials. 

SUPPLEMENTARY INFORMATION: The 

Notice of Intent provided the public 

with instructions on how to submit 

scoping comments to the Air Force in 

consideration of the four alternatives 

being considered, which include: 

Homestead Air Reserve Base, 

Homestead FL; Naval Air Station Fort 

Worth Joint Reserve Base, Fort Worth, 

TX; Davis-Monthan Air Force Base, 

Tucson, AZ; and Whiteman Air Force 

Base, Knob Noster, MO. The Air Force 

has subsequently been made aware that 

the address provided for submittal of 

courier delivered public scoping 

comments (e.g., Federal Express or 

United Parcel Service) was incorrect. 

This notice corrects the address for 

courier delivered public scoping 

comments and provides 10-working 

days for the interested public to submit 

scoping comments. During this 10- 

working day period, the Air Force is 

offering multiple ways in which 

comments can be submitted. Comments 

can be provided through the project 

website (www.AFRC-F35ABeddown.com), via email to the email 

address provided below and via regular 

mail or via courier to the addresses 

listed below. The website also provides 

additional information on the 

Environmental Impact Statement and 

related materials. The Air Force will 

consider all scoping comments 

submitted. 

Henry Williams, 

Acting Air Force Federal Register Liaison 

Officer. 

[FR Doc. 2018–17324 Filed 8–10–18; 8:45 am] 

BILLING CODE 5001–10–P 

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. 

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-free at 1–800–622–4520; or by email 

to hyhelwig@bpa.gov. 

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 twoweek 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 


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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. 


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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 


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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. 


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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 Partyto-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 Partyto-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 


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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 attorneyclient 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 


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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 


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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 Crossexamination 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 caseby-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 decisionmaker (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 


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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 legislativestyle 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 


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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. 


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(p) ‘‘Hearing Officer’s Recommended 

Decision’’ means the document that sets 

forth the Hearing Officer’s 

recommendation to the Administrator 

on each issue in a proceeding pursuant 

to Section 1010.1(a)(2). 

(q) ‘‘Litigant(s)’’ means Bonneville 

and all Parties to the pending 

proceeding. 

(r) ‘‘Participant’’ means any Person 

who is not a Party and who submits oral 

or written comments pursuant to 

Section 1010.8. 

(s) ‘‘Party’’ means any Person whose 

intervention is effective under Section 

1010.6. A Party may be represented by 

its Counsel or other qualified 

representative, provided that such 

representative conforms to the ethical 

standards prescribed in Section 

1010.2(e). 

(t) ‘‘Person’’ means an individual; 

partnership; corporation; limited 

liability company; association; an 

organized group of persons; 

municipality, including a city, county, 

or any other political subdivision of a 

state; state, including any agency, 

department, or instrumentality of a 

state; a province, including any agency, 

department, or instrumentality of a 

province; the United States or other 

nation, or any officer, or agent of any of 

the foregoing acting in the course of his 

or her employment or agency. 

(u) ‘‘Prefiled Testimony and Exhibits’’ 

means any testimony, exhibits, studies, 

documentation, or other materials in a 

Litigant’s direct or rebuttal case 

submitted in accordance with the 

procedural schedule. Prefiled 

Testimony and Exhibits do not include 

pleadings, briefs, or Cross-examination 

Exhibits. 

(v) ‘‘Rate’’ means the monetary 

charge, discount, credit, surcharge, 

pricing formula, or pricing algorithm for 

any electric power or transmission 

service provided by Bonneville, 

including charges for capacity and 

energy. The term excludes, but such 

exclusions are not limited to, 

transmission line losses, leasing fees, or 

charges from Bonneville for operation 

and maintenance of customer-owned 

facilities. A rate may be set forth in a 

contract; however, other portions of a 

contract do not thereby become part of 

the rate for purposes of these rules. 

(w) ‘‘Record’’ means (1) Evidence; (2) 

transcripts, notices, briefs, pleadings, 

and orders from the proceeding; (3) 

comments submitted by Participants; (4) 

the Hearing Officer’s Recommended 

Decision, if applicable; (5) the Draft 

Record of Decision, if any; and (6) such 

other materials and information as may 

have been submitted to, or developed 

by, the Administrator. 

(x) ‘‘Secure website’’ means the 

website established and maintained by 

Bonneville for proceedings under these 

rules. 

Section 1010.3 Hearing Officer 

(a) The Hearing Officer is responsible 

for conducting the proceeding, 

managing the development of the 

Record, and resolving procedural 

matters. In addition, in a proceeding 

pursuant to Section 1010.1(a)(2), the 

Hearing Officer is responsible for 

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 


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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. 


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Section 1010.8 Participants 

(a) Any Participant may submit 

written comments for the Record or 

present oral comments in legislativestyle 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, Crossexamination 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 81⁄2 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-point Times New Roman (10-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 


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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 attorneyclient 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. 


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(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. ll.’’ 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 nondisclosure 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 crossexamination 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 


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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 crossexamined, 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 crossexamination for any witnesses not listed 

in its cross-examination statement, 

except that any Litigant may ask followup questions of witnesses appearing at 

the request of another Litigant. 

(d) After the Litigants file crossexamination statements, the Hearing 

Officer shall issue a schedule setting 

forth the order of witnesses to be crossexamined. 

(e) Cross-examination is limited to 

issues relevant to the Prefiled 

Testimony and Exhibits that (1) are 

identified in the Litigant’s crossexamination 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 crossexamined may object to questions asked 

during cross-examination, except that 

Counsel for any Litigant may object to 

friendly cross-examination. 

(i) To avoid duplicative crossexamination, 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 crossexamination of any witness. 

(k) Cross-examination Exhibits. 

(1) A Litigant must file each Crossexamination 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 crossexamination on the day the witness is 

scheduled to appear. 


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(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, Crossexamination 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. 


sradovich on DSK3GMQ082PROD with NOTICES
40010 Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Notices 

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 

DEPARTMENT OF ENERGY 

[OE Docket No. EA–388–A] 

Application to Export Electric Energy; 

TEC Energy Inc. 

AGENCY: Office of Electricity, DOE. 

ACTION: Notice of application. 

SUMMARY: TEC Energy Inc. (Applicant or 

TEC) has applied to renew its authority 

to transmit electric energy from the 

United States to Canada pursuant to the 

Federal Power Act. 

DATES: Comments, protests, or motions 

to intervene must be submitted on or 

before September 12, 2018. 

ADDRESSES: Comments, protests, 

motions to intervene, or requests for 

more information should be addressed 

to: Office of Electricity, Mail Code: OE– 

20, U.S. Department of Energy, 1000 

Independence Avenue SW, Washington, 

DC 20585–0350. Because of delays in 

handling conventional mail, it is 

recommended that documents be 

transmitted by overnight mail, by 

electronic mail to Electricity.Exports@

hq.doe.gov, or by facsimile to 202–586– 

8008. 

SUPPLEMENTARY INFORMATION: The 

Department of Energy (DOE) regulates 

exports of electricity from the United 

States to a foreign country, pursuant to 

sections 301(b) and 402(f) of the 

Department of Energy Organization Act 

(42 U.S.C. §§ 7151(b) and 7172(f)). Such 

exports require authorization under 

section 202(e) of the Federal Power Act 

(16 U.S.C. § 824a(e)). 

On December 19, 2013, DOE issued 

Order No. EA–388 to TEC, which 

authorized the Applicant to transmit 

electric energy from the United States to 

Canada as a power marketer for a fiveyear term using existing international 

transmission facilities. That authority 

expires on December 19, 2018. On July 

30, 2018, TEC filed an application with 

DOE for renewal of the export authority 

contained in Order No. EA–388 for an 

additional five-year term. 

In its application, the Applicant states 

that it ‘‘does not own or control any 

electric generation or transmission 

facilities’’ and ‘‘does not hold a 

franchise or service territory for the 

transmission, distribution or sale of 

electric power.’’ The electric energy that 

the Applicant proposes to export to 

Canada would be surplus energy 

purchased from third parties such as 

electric utilities and Federal power 

marketing agencies pursuant to 

voluntary agreements. The existing 

international transmission facilities to 

be utilized by TEC have previously been 

authorized by Presidential permits 

issued pursuant to Executive Order 

10485, as amended, and are appropriate 

for open access transmission by third 

parties. 

Procedural Matters: Any person 

desiring to be heard in this proceeding 

should file a comment or protest to the 

application at the address provided 

above. Protests should be filed in 

accordance with Rule 211 of the Federal 

Energy Regulatory Commission’s (FERC) 

Rules of Practice and Procedure (18 CFR 

385.211). Any person desiring to 

become a party to this proceeding 

should file a motion to intervene at the 

above address in accordance with FERC 

Rule 214 (18 CFR 385.214). Five (5) 

copies of such comments, protests, or 

motions to intervene should be sent to 

the address provided above on or before 

the date listed above. 

Comments and other filings 

concerning TEC’s application to export 

electric energy to Canada should be 

clearly marked with OE Docket No. EA– 

388–A. An additional copy is to be 

provided directly to both Etienne 

Lapointe, CPA, CA, MSc, TEC Energy 

Inc., 88 Prince St, Suite 202, Montreal, 

Quebec H3C 2M8, and Legalinc 

Corporate Services Inc., 35–15 84th 

Street 2H Jackson Heights, New York, 

NY 11372. 

A final decision will be made on this 

application after the environmental 

impacts have been evaluated pursuant 

to DOE’s National Environmental Policy 

Act Implementing Procedures (10 CFR 

part 1021) and after DOE determines 

that the proposed action will not have 

an adverse impact on the sufficiency of 

supply or reliability of the U.S. electric 

power supply system. 


sradovich on DSK3GMQ082PROD with NOTICES