[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Proposed Rules]
[Pages 47456-47458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23635]



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POSTAL RATE COMMISSION

39 CFR 3001

[Docket No. RM98-2; Order No. 1219]


Revisions to Library Reference Rule

AGENCY: Postal Rate Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission proposes amending its rules of practice to 
clarify the use of library references in evidentiary proceedings. The 
proposed amendments specify conditions under which library references 
may be filed; improve labeling and identification; and establish a 
process for conditional acceptance that entails motion practice.

DATES: Comments should be filed on or before October 14, 1998.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
202-789-6820.

SUPPLEMENTARY INFORMATION: The Commission's rules of practice authorize 
participants in evidentiary proceedings to label material as a library 
reference and file it with the Commission's docket section. See 
generally Rule 31(b), and Docket No. R97-1 Special Rule of Practice No. 
5. Designation as a library reference and acceptance in the 
Commission's docket section confer no evidentiary status on the 
material; instead, these steps are part of an administrative practice 
designed to relieve participants of the burden of serving copies of 
voluminous material on others or to facilitate reference to, or 
identification of, the material.
    The Commission's longstanding approach has been to allow the Postal 
Service and others to file material as a library reference without 
requiring them to make a threshold showing of the appropriateness of 
the designation, and without conducting an independent evaluation. In 
Docket No. R97-1, serious concerns arose that the library reference 
practice could be employed, either inadvertently or strategically, to 
insulate material from effective cross-examination (or to control the 
timing of such examination), and thereby interfere with participants' 
due process rights and the timely completion of Commission proceedings. 
A related concern was that the complexity of issues in Docket No. R97-1 
and the extensive amount of material filed in support of the Service's 
request made it difficult to determine the contents of some library 
references; to distinguish between evidentiary and non-evidentiary 
material; and to determine responsibility for sponsorship. A series of 
rulings and orders addressed the immediate due process concerns of 
Docket No. R97-1, and a related Notice of Inquiry (NOI) invited 
comments on suggestions for improving the rule. See, for example, P.O. 
Ruling R97-1/20 (September 17, 1997); Order No. 1201 (November 4, 
1997); and NOI No. 1, Question 3 (September 17, 1997). The comments are 
available for review in the Commission's docket room.

Scope of Proposed Rulemaking

    The Commission proposes a limited update of its rules of practice 
to address certain aspects of the controversy that surfaced in Docket 
No. R97-1. Among other things, the revisions require that approval of 
the designation of material as a library reference be obtained through 
a motion. They also specify circumstances or conditions, in addition to 
those already identified in Commission rules, under which material can 
be designated as a library reference. The revisions also improve the 
labeling and description of material contained in library references, 
and require participants to file an electronic version of the material, 
absent a satisfactory demonstration of why an electronic version cannot 
be supplied, or should not be required to be supplied. These changes 
effectively eliminate the need for the special rule that was used in 
Docket No. R97-1, but do not address all of the issues that arose with 
respect to library references in Docket No. R97-1 or preclude the 
possibility that special rules governing the use of library references 
may continue to be needed. The remaining discussion briefly reviews 
comments submitted in response to NOI No. 1 in Docket No. R97-1; 
describes proposed revisions, and sets out proposed changes.

Comments Submitted in Response to NOI No. 1

    In its response to the NOI, Nashua Photo Inc., District Photo Inc., 
Mystic Color Lab and Seattle Filmworks, Inc. (NDMS) state that they do 
not view ``the mere act of labeling a particular document as a library 
reference as especially problematic,'' even if the document is not 
voluminous as now anticipated by the Commission's rules. NDMS Response 
to NOI No. 1 on Interpretation of Commission Rules Authorizing the Use 
of Library References (October 3, 1997) at 2. They add:

    In fact, it may be a relatively harmless procedure if the party 
submitting the library reference feels the information in the 
library reference is information few would want to read, or that 
inclusion with testimony would be unduly burdensome, or divert the 
reader, or if the information is in the nature of a secondary source 
which is provided to facilitate access by other parties. Except for 
abuse, the designation of a document as a library reference should 
not, of itself, create a serious issue in a rate or classification 
proceeding.

Id. at 2.
    However, NDMS further observe:

    Designation of library references becomes abusive if the party 
offering the library reference offers it with one or more of the 
following purposes or results: (i) To circumvent the requirement for 
the presentation of record evidence before the Commission; (ii) to 
circumvent the requirement that a live witness vouch for the 
accuracy and reliability of the study (or other information); (iii) 
to circumvent the requirement that a live witness be made available 
for written or oral cross-examination; or (iv) to interpose delay 
and unnecessary discovery and motions practice and associated 
expense on intervenors during a statutorily-limited proceeding where 
every day counts.

Id. at 2-3.

Alliance of Nonprofit Mailers (ANM)

    ANM observes that the Commission has not set a minimum page limit 
or word count as a condition for designating a document as a library 
reference, but says it is ``unlikely that a blanket rule of this kind 
would be useful.'' ANM Comments (October 3, 1997) at 1-2. ANM also 
notes that a document of general interest and importance may warrant 
individual service even if voluminous and, conversely, that a document 
devoid of general interest or importance may be ``too voluminous 
reasonably to be distributed'' by individual service even if the 
document is short. Id. at 2.
    In the absence of a bright line standard, ANM says that ``deciding 
which Postal Service library references were not `too voluminous 
reasonably to be distributed' is likely to be more contentious than 
helpful.'' Id. Thus, instead of establishing a minimum page count or 
word count for library references, ANM suggests that the Commission 
should consider requiring parties sponsoring library references to 
provide individual copies to interested parties upon request. It 
further states that if this approach is adopted, the Commission might 
consider the advisability of prohibiting parties, with the possible 
exception of the Postal Service and the Commission's Office of the 
Consumer Advocate (OCA), from submitting blanket requests for copies of 
all library references. Id. Also, ANM said the Commission should make 
mandatory the now-voluntary practice of submitting library references 
in

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electronic form for posting on, and downloading from, the Commission 
web site. Id.
    ANM also states that the ``formalities of designating library 
references are far less critical than the need to ensure that data, 
studies or other information in a library reference, if relied upon by 
the sponsoring party, are open to meaningful cross-examination.'' Id. 
Therefore, it suggests that a party choosing to rely on a library 
reference in support of its case should be required to offer a witness 
sponsoring the library reference for cross-examination, except when the 
information at issue is of a kind that is normally admissible without a 
sponsoring witness, such as a statement against interest, or an 
admission by an adverse party. Id. at 3-4. ANM further contends that 
the Postal Service should be required to identify--when filing its 
formal request and written case-in-chief, but no later than the 
beginning of hearings--which portions of which library references will 
be sponsored into evidence, and by which witnesses. Id. at 4.

Newspaper Association of America (NAA)

    NAA maintains that instead of revisions to existing rules, there 
simply should be adherence to and serious enforcement of the rules as 
they now exist. NAA Comments in Response to NOI No. 1 at 2 (October 3, 
1998).

Parcel Shippers Association (PSA)

    PSA's response does not directly address revisions, but cites its 
September 17, 1997 Memorandum of Law on the Issue of the Evidentiary 
Value of Unsponsored Library References, which reviewed PSA's concerns 
about the Service's reliance on unsponsored library references not only 
in Docket No. R97-1, but in Docket No. MC95-1 as well. PSA Response to 
NOI No. 1 at 1 (October 2, 1997). PSA notes that its memorandum makes 
clear that it ``is concerned about the status of Library Reference H-
108, currently anonymously authored and unsponsored, but heavily relied 
upon by several Postal Service witnesses' filed testimony as the source 
of their testimony.'' Id.

Office of the Consumer Advocate (OCA)

    In the course of extensive comments, the OCA notes that an ongoing 
problem with library references is that ``a fair number of them have 
merely been deposited in the Commission's docket room without any 
explanation for their purpose and being.'' OCA Response to NOI No. 1 on 
Interpretation of Commission Rules Authorizing the Use of Library 
References at 10 (October 3, 1997). It contends that a ``roadmap'' is 
necessary to ensure that it can evaluate the evidence contained in 
library references. Id. at 12. A related problem, according to the OCA, 
is the incompleteness of explanation about what is contained in a 
library reference. Id. at 20. It observes:

    * * * [USPS-LR-]H-146 described six computer programs that were 
not discussed in the Postal Service's direct testimony. 
Interrogatory OCA/USPS-T-12-35 was necessary to elicit information 
concerning the objectives and uses of such programs, and how the 
program may have changed over time. The Postal Service's failure to 
state clearly (without having the information extracted by OCA) that 
the outputs of these programs are used in the testimony and 
workpapers of witness Alexandrovich demonstrates how the Postal 
Service misuses the opportunity to file what is, in reality, 
evidence, as matter buried within a library reference.

Id. at 20 (fn. omitted).
    The OCA suggests that Rule 53 should be amended to require the 
Service to identify, at the time it files its request, the evidence on 
which it intends to rely, and the witness whose responsibility it will 
be to answer questions concerning all filed material. Id. at 21. Among 
other things, the OCA also suggests amendments to address the 
sponsorship of institutional responses and surveys and what it refers 
to as an ``administrative change'' which would require a party filing a 
library reference to supply both the statistical information and the 
accompanying text in diskette form. Id. at 22-27.

Postal Service

    The Postal Service acknowledges that the Docket No. R97-1 
experience may justify clarifying or revising the library reference 
practice, but indicates it ``does not believe that it is a foregone 
conclusion that a formal rulemaking is necessary. * * *'' Response of 
the United States Postal Service to NOI No. 1 at 4 (October 6, 1997). 
It suggests that ``[f]urther clarification or refinement of the 
Commission's existing practices, as well as a better understanding of 
the effect on the evidentiary record, may obviate a formal rule 
change.'' Id.

Proposed Revisions

    Based on recent experience in Docket No. R97-1 and other dockets, 
and on the comments submitted in response to NOI No. 1, the Commission 
has determined that certain improvements in its rules of practice are 
necessary and desirable. The Commission's proposal draws on suggestions 
and observations made in comments briefly reviewed above. Since the 
practice of allowing participants to designate material as a library 
reference is intended to foster convenience, a central focus of the 
revisions is on adequate identification of material contained in a 
library reference and its relationship to issues in the proceeding. The 
proposal does not include a page limit, but anticipates that if 
``volume'' or length is a reason for designating material as a library 
reference, this will be addressed in the participant's motion. An 
electronic version of the document or material is to be filed, absent a 
showing of why this cannot or should not be supplied.
    The most significant change is the introduction of formal motion 
practice, with conditional acceptance of the material proposed for 
designation pending a ruling. The proposed rule provides that the 
motion is to affirmatively address various matters, such as an 
explanation of how the material relates to the participant's case or to 
issues in the proceeding; whether the material will be entered into the 
evidentiary record; and the anticipated sponsor.
    The rule reflects the longstanding principle, which appears in the 
existing rule, that designation of a material as a library reference 
and acceptance in the Commission's docket room does not confer 
evidentiary status on the material.

List of Subjects in 39 CFR Part 3001

    Administrative practice and procedure, Postal Service.

    For the reasons stated in the preamble, 39 CFR 3001.31 is amended 
as follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation for part 3001 continues to read as 
follows:

    Authority: 39 U.S.C. 404(b), 3603, 3622-24, 3661, 3662.

    2. Amend Sec. 3001.31 by revising paragraph (b) to read as follows:


Sec. 3001.31  Evidence.

* * * * *
    (b) Documentary material--(1) General. Documents and detailed data 
and information shall be presented as exhibits. Where relevant and 
material matter offered in evidence is embraced in a document 
containing other matter not material or relevant or not intended to be 
put in evidence, the participant offering the same shall plainly 
designate the matter offered excluding the immaterial or irrelevant 
parts. If other matter in such document is in such bulk or extent as 
would unnecessarily encumber the record, it may be marked

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for identification, and, if properly authenticated, the relevant and 
material parts thereof may be read into the record, or, if the 
Commission or presiding officer so directs, a true copy of such matter 
in proper form shall be received in evidence as an exhibit. Copies of 
documents shall be delivered by the participant offering the same to 
the other participants or their attorneys appearing at the hearing, who 
shall be afforded an opportunity to examine the entire document and to 
offer in evidence in like manner other material and relevant portions 
thereof.
    (2) Library references. The term ``library reference'' is a generic 
term or label that participants and others may use to identify or 
designate certain documents or things (``material'') filed with the 
Commission's docket section. The practice of filing a library reference 
is authorized primarily as a convenience to participants and the 
Commission under certain circumstances. These include:
    (i) when the participant satisfactorily demonstrates that the 
physical characteristics of the material, such as number of pages or 
bulk, are reasonably likely to render compliance with service 
requirements unduly burdensome;
    (ii) when the participant satisfactorily demonstrates that interest 
in the material or things so labeled is likely to be so limited that 
service on the entire list would be unreasonably burdensome, and the 
participant agrees to serve the material on individual participants 
upon request;
    (iii) when the participant satisfactorily demonstrates that 
designation of material as a library reference is appropriate because 
the material constitutes a secondary source. A ``secondary source'' is 
one that provides background for a position or matter referred to 
elsewhere in a participant's case or filing, but does not constitute 
essential support and is unlikely to be a material factor in a decision 
on the merits of issues in the proceeding;
    (iv) when the participant satisfactorily demonstrates that the 
reference to, identification of, or use of the material would be 
facilitated if it is filed as a library reference; or
    (v) when otherwise justified by circumstances, as determined by the 
Commission or presiding officer.
    (3) Form and timing of required demonstration. The requisite 
demonstration shall be provided in the form of a motion. In general, 
the motion shall be accompanied by the simultaneous filing, with the 
Commission's docket section, of a copy of the material proposed for 
designation as a library reference. If appropriate, a comprehensive 
description of the material may be filed with the docket section in 
lieu of the material itself.
    The motion shall set forth with particularity the reason(s) why 
designation of the material as a library reference is being sought; 
explain how the material relates to the participant's case or to issues 
in the proceeding; indicate whether the material contains a survey or 
survey results; and provide a good-faith indication of whether the 
participant anticipates that the material will be entered, in whole or 
in part, into the evidentiary record. The motion shall also identify 
authors or others materially contributing to the preparation of the 
library reference.
    If the participant filing the library reference anticipates seeking 
to enter all or part of the material contained therein into the 
evidentiary record, the motion also shall identity portions expected to 
be entered and the expected sponsor(s).
    (4) Conditional acceptance. Material accompanying a motion invoking 
the library reference designation shall be accepted in the Commission's 
docket section conditionally, pending a ruling on the merits of the 
motion.
    (5) Labels and descriptions. Material proposed to be filed as a 
library reference shall be labeled in a manner consistent with standard 
Commission notation and any other conditions the Presiding Officer or 
Commission establishes. In addition, material designated as a library 
reference shall include a preface or summary addressing the following 
matters: The proceeding and document or issue to which the material 
relates; the identity of the participant designating the library 
reference; the identity of the witness or witnesses who will be 
sponsoring the material or the reason why a sponsor cannot be 
identified; and to the extent feasible, other library references or 
testimony referred to within. In addition, the preface or summary shall 
explicitly indicate whether the library reference is an update or 
revision to a library reference filed in another Commission proceeding, 
and provide an adequate identification of the predecessor material.
    (6) Electronic version. Material filed as a library reference shall 
also be made available in an electronic version, absent a showing of 
why an electronic version cannot be supplied or should not be required 
to be supplied.
    (7) Status of library references. Designation of material as a 
library reference and acceptance in the Commission's docket section 
does not confer evidentiary status. The evidentiary status of the 
material is governed by this section.
* * * * *
    Dated: August 27, 1998.
Margaret P. Crenshaw,
Secretary.
[FR Doc. 98-23635 Filed 9-2-98; 8:45 am]
BILLING CODE 7710-FW-P