[Federal Register Volume 63, Number 247 (Thursday, December 24, 1998)]
[Proposed Rules]
[Pages 71251-71255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33909]
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POSTAL RATE COMMISSION
39 CFR Part 3001
[Docket No. RM98-2; Order No. 1223]
Revisions to Library Reference Rule; Further Changes
AGENCY: Postal Rate Commission.
ACTION: Supplementary notice of proposed rule.
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SUMMARY: This document addresses comments on the PRC's initial proposed
revisions to rules on the use of library references. It also presents
another set of revisions for comment. The revisions are intended to
improve administrative aspects of the library reference practice.
DATES: File comments by February 1, 1999.
ADDRESSES: Send comments on this proposal to Margaret P. Crenshaw,
Secretary of the Commission, Postal Rate Commission, 1333 H Street NW.,
Suite 300, Washington, DC, 20268-0001.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6820.
SUPPLEMENTARY INFORMATION:
Regulatory History
On September 8, 1998, the Commission published Order No. 1219 in
the Federal Register [63 FR 47456] setting forth proposed revisions to
rule 31(b). The proposal addressed administrative aspects of the
library reference practice. The Commission received eight sets of
comments on the proposal. The comments are available
[[Page 71252]]
for public inspection in the Commission's docket section, and can be
accessed electronically at www.prc.gov.
Background
The order initiating this rulemaking noted that longstanding
provisions in the Commission's rules of practice allow participants to
designate material as a library reference and file it for public
inspection in the Commission's docket section, in lieu of providing the
material to the entire service list. See generally rule 31(b)
(effectively adopted as special rule 5 in Docket No. R97-1). The
participant submitting the library reference generally serves a notice
to that effect on the Commission and all other participants. The
contents of these notices vary, but generally are subject, at a
minimum, to the requirements of rule 11.
One rationale advanced in support of this practice is that it
eliminates the considerable burden and expense associated with copying
and providing voluminous material to every participant on the service
list. Another reason is that it facilitates reference to, or
identification of, material that may be of interest to only a few
participants, of limited interest to the entire service list, or not
easily photocopied or duplicated. Regardless of the underlying
rationale that may be invoked, the practice is essentially an
administrative convenience for the filing participant, stands as an
exception to the Commission's service requirements, and does not confer
evidentiary status on the designated material. A participant seeking to
have part or all of the material admitted into evidence is expected to
satisfy Commission rules related to that step.
Concerns have arisen in recent proceedings that this practice could
be employed, either inadvertently or strategically, to insulate
material from effective cross-examination, and thereby interfere with
participants' due process rights and timely completion of Commission
action on Postal Service requests. The amended proposed rule provides a
more detailed and specific statement of the somewhat limited
circumstances when the submission of material as a library reference is
appropriate. It reaffirms that this practice is available essentially
to prevent unduly burdening filing participants. Several important
questions regarding administration of the rule also have surfaced. One
of these is whether accompanying notices provide adequate disclosure of
the nature of the filed material. Others include whether the identity
of the person responsible for preparation of the material should be
disclosed; whether the material is being sponsored and, if so, the
sponsor's identity; the relationship to interrogatories, testimony or
other documents; and whether admission into evidence will be sought.
Questions have also arisen concerning whether the material included in
a library reference should be prepared in a manner that meets certain
minimum standards of presentation or organization with respect to
matters such as executive summaries, pagination, tables of contents,
and indices.
Order No. 1219 indicated that the Commission considered proposing
comprehensive revisions directed at evidentiary, administrative, and
other issues related to the use of library references, but concluded it
would be more efficient to issue a narrower rulemaking; therefore, it
characterized the proposed revisions as ``a limited update'' to its
rule 31, Evidence. It also expressly noted that the changes did not
address all of the issues that arose in Docket No. R97-1, and flagged
the possibility that in individual cases, special rules governing the
use of library references might still be needed.
Should the rulemaking be expanded to address evidentiary concerns?
Most commenters tailor their observations to the Commission's stated
interest in pursuing relatively narrow improvements in the
administration of the library reference practice at this time. Some of
these commenters support adoption of the rule essentially as proposed.
Other supporters of the overall direction of the rulemaking suggest
certain modifications. These include, among other things, adopting the
mandatory motion requirement on a trial basis only, or dropping it
(either entirely or in most instances) in favor of an expanded notice.
Suggested modifications also include clarifying proposed disclosure
requirements or expanding them, and making minor changes in the
organization of the rule.
Several commenters express concern that the rulemaking's scope is
so circumscribed that it does not address fundamental evidentiary
questions. Some of these commenters offer certain observations about
specific provisions of the proposal, but they nevertheless prefer that
the Commission expand the focus and hold a public conference to address
the mixed questions of evidence and administration entailed in recent
controversies. One of these commenters usefully identifies at least six
discrete evidentiary issues not addressed in the proposed rule and
suggests, among other things, that it might be more appropriate to
consider these issues in the context of the Commission's rules on
documentary and foundation materials.
Another commenter (generally supportive of the proposed rule) notes
that the revisions do not specifically address sponsorship of
institutional responses to interrogatories, and proposes a change to
another rule (25(b)) to remedy this. This commenter also proposes,
among other things, certain changes to the wording of rules relating to
exhibits and surveys, and more explicit recognition of the need for
cross-references to related material and a participant's obligation to
update these in the course of a proceeding.
The Commission believes Order No. 1219 made clear its recognition
that the problems encountered in Docket No. R97-1 raised difficult
questions of evidence and administration, and would require serious
attention beyond the immediate proposal. It believes its concurrent
rulemaking, Docket No. RM98-3, may provide an appropriate vehicle for
addressing these broader issues, including those identified in some of
the comments submitted here. The Commission also appreciates that
enforcement of its rules on the admission of material into evidence, as
some commenters have noted, is a critical element in curbing future
disputes regarding library references.
Given the concerns expressed about the rulemaking's scope, the
Commission has reassessed its original position, but again concludes
that it is appropriate to restrict the current rulemaking to largely
administrative issues. Within this context, the Commission attempts to
strike an appropriate balance in terms of the level of detail required
to be provided. It is hoped that as now amended, the proposed rules
will be largely noncontroversial, and subject to rapid implementation.
Should submission of a library reference be tied to a formal motion
for acceptance, as initially proposed, or dropped in favor of a
variation on the existing notice requirement? Under prevailing
practice, the requirements that apply to the contents of notices
accompanying library references are minimal. Further, deficiencies in
meeting them generally are remedied only on an ad hoc basis. To provide
more uniformity in the level of detail provided, as well as a formal
mechanism for prompt review and assessment of compliance with expanded
labeling and disclosure requirements, the Commission proposed that each
library reference be accompanied by a motion for acceptance. It
recognized that this might
[[Page 71253]]
entail some additional effort on the part of the Commission and all
interested participants at the time a library reference is filed, but
balanced this against the delay and confusion entailed in dealing with
complications posed by addressing deficiencies discovered or objected
to at a later stage.
Several commenters support the proposal to link the filing of
library references to a motion. However, one of these supporters raises
concerns about delay, and suggests that the proposed approach be
adopted on a trial basis only, and carefully monitored. Another
commenter observes that requiring a motion may not be necessary in
every instance and could have a chilling effect, at least with respect
to secondary sources. This commenter suggests allowing most library
references to be filed by means of a notice, with a motion required
only when circumstances justify. Opponents of any form of motion
practice generally criticize the proposed approach as making the
process of filing a library reference more difficult and time-
consuming.
Despite varying positions on the motion requirement, the comments
as a whole generally indicate consensus on the need for better labeling
and disclosure regarding the material in a library reference, as well
as its relationship to testimony, interrogatories, and the development
of the evidentiary record. To the extent that this information could be
provided as easily in an expanded notice as in a motion, the Commission
agrees that mandating that library references be accompanied by a
motion may not be necessary. Thus, the amended revisions proposed here
substitute a notice for a motion, and make conforming changes
throughout the text to reflect this revision. In making this change,
the Commission emphasizes that the notice under this rule must include
broader disclosure than is generally the case now. Therefore,
replacement of the mechanism originally proposed--a motion--with a
notice is not an endorsement of the status quo in terms of the labeling
and description contained therein. The Commission stresses that the
success of the notice alternative, especially in terms of avoiding
delay, will depend largely on a high level of voluntary compliance on
the part of participants filing library references. It also regards the
notice mechanism as less clear-cut in terms of providing those who
perceive deficiencies in a notice with an established avenue of seeking
prompt redress. (One commenter's suggestion that the motion not be
considered (ruled upon) unless the proposed labeling and disclosure
requirements are met implicitly recognizes this.) Since notices are not
``ruled upon'' in the sense specifically used by this commenter, the
commenter's suggested amendment is inapposite. However, this does not
alter the Commission's expectation that filing participants will adhere
to the spirit as well as the letter of the rule in terms of the
completeness of the notices accompanying library reference material.
Should the proposed improvements in required labeling,
descriptions, and disclosures be adopted as proposed? As indicated,
most commenters agree that better labeling and disclosure would reduce
or eliminate many of the administrative problems that have arisen.
Several suggest essentially minor changes to clarify the nature and
extent of required disclosures. One, for example, asks that the second
paragraph of section 31(b)(3) in the initial proposal, which requires
the filing party to identify the authors or others materially
contributing to the preparation of library references, be modified to
require that the party explain why such information is not available,
if that is the case. The Commission agrees that this change, as the
commenter suggests, would be helpful in circumstances where, for
example, computer-generated data are provided in response to an
interrogatory, but are not being offered in evidence. Another commenter
asks that the rule include a description of what the library reference
is and a specific requirement that when a library reference is filed in
response to an interrogatory, the interrogatory be identified. The
Commission believes that the general disclosures it is requiring can be
deemed to include this type of information, but is amending the
proposal in the manner suggested in order to remove any doubt.
As indicated above, one commenter suggests addressing certain
concerns about institutional responses. The Commission finds that
resolution of issues in this area must be postponed. This commenter
also seeks more explicit cross-referencing than the rule proposes. The
Commission believes the proposal presented here strikes an appropriate
balance among the interests of all concerned.
Are filing and service concerns, especially the number and format
of copies filed with the Commission and special requests for service,
adequately addressed? The proposed rule required that one hard copy
and, when possible, one electronic version of the material in the
library reference be filed with the Commission. This parallels the
current requirement with respect to hard copies and formalizes the
growing, but now-voluntary, practice of submitting electronic versions.
There was little reaction to the requirement that an electronic version
be provided, but to the extent it was mentioned, it garnered support.
The version of the rule proposed here retains the requirement related
to electronic copies.
As initially proposed, a circumstance that can be invoked for
filing a library reference is the likelihood that the material will be
of limited interest to the entire service list. This was coupled with a
requirement that the filing participant agree to serve the material on
individual participants, if so requested. Under the motion practice
envisioned in the original proposal, participants interested in
receiving actual service of other library reference material would have
had a clear opportunity to request this--as early as the when the
companion motion was received--so the Commission did not otherwise
provide for special requests in its initial proposal.
Two commenters suggest extending the option of special requests for
actual service to all library reference material. One suggests that the
copy be provided within three days of a request; the other proposes
requiring ``prompt'' service, without further specification of a time
limit. The Commission appreciates participants' concern about promptly
obtaining actual service of all library references of interest to them.
However, it also believes that the availability of electronic versions
of many library references should reduce, if not eliminate, the need
for actual service of much library reference material. It also is
concerned about blanket requests for special service, which would
undermine the administrative convenience the rule extends to the filing
participant. Thus, the Commission does not propose an across-the-board
authorization for participants to make special requests for service;
however, it amends the provision on actual service that remains in the
rule because it finds that the current wording is more open-ended than
desirable. Specifically, the Commission proposes requiring, in
situations meeting the terms of section 31(b)(2)(i) (A) and (B)
proposed here, that the filing participant provide a copy of the
requested material within three days or, in the alternative, inform the
requesting participant why the material cannot be provided within that
timeframe, indicate when the material will be available, and make
reasonable efforts to promptly provide the material. The absence of a
specific authorization
[[Page 71254]]
for special requests in other instances [section 31(b)(2)(i) (A) and
(C)-(E)] does not automatically foreclose a participant from making a
request. In these situations, the Commission strongly encourages
informal cooperation among the parties in addressing special service
requests.
Another commenter, citing problems with obtaining prompt access to
certain library references, suggests modifying the proposal to require
that two copies of each library reference be filed with the Commission.
(The Commission assumes that the suggestion regarding filing two copies
of each library reference relates to hard copies, rather than to two
electronic versions.) The Commission is aware that a requirement of
this nature could pose hardships in certain instances, especially on
the Postal Service, but is also concerned that participants seeking to
review a hard copy could be inconvenienced if there is only one on file
at the Commission. The Commission believes requiring participants to
file two copies with its docket section strikes an appropriate balance,
especially since instances where this poses undue burden or hardship on
the filing party can be dealt with through a request for waiver.
In addition, the Commission, on its own initiative, is making a
minor editorial revision to clarify that the library reference practice
is primarily a convenience to the participant filing the designated
material. Specifically, it amends the second paragraph of section
31(b)(2)(i) by substituting the words ``filing participants'' for the
term ``participants.'' The Commission believes that the sense of the
proposal as a whole makes it clear that the referenced participant is
generally the participant filing, or designating, material as a library
reference. The Commission also clarifies the timing of the notice by
adding the word ``contemporaneous'' in section 31(b)(2)(ii) proposed
here.
Should the technical and minor editorial changes suggested by
several commenters be made at this time? Several commenters suggest
that minor reorganization of the rule (in terms of numbering) could
avoid potential confusion. The Commission agrees that subsections (3)
through (7) of rule 31(b)--in the initial rulemaking--relate solely to
library references, and not to the other types of documents covered by
rule 31(b). Since, among other things, the concurrent general review of
the rules was expected to require additional organizational changes in
the near future, the Commission preliminarily determined to postpone
more extensive re-numbering. However, given commenters' concerns about
potential confusion, the Commission is re-numbering the section,
generally along the lines suggested, with the understanding that
further reorganization may be needed, either to conform with future
changes or with official publication requirements.
List of Subjects in 39 CFR Part 3001
Administrative practice and procedure, Postal Service.
For the reasons discussed in the preamble, the Commission proposes
to amend 39 CFR 3001.31 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 for
identification, and, if properly authenticated, the relevant and
material parts 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. (i) 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 filing participants and the
Commission under certain circumstances. These include:
(A) When the physical characteristics of the material, such as
number of pages or bulk, are reasonably likely to render compliance
with the service requirements unduly burdensome; and
(B) When 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 within three days of a request, or
to provide, within the same period, an explanation of why the material
cannot be provided within three days, and to undertake reasonable
efforts to promptly provide the material; or
(C) 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; or
(D) When reference to, identification of, or use of the material
would be facilitated if it is filed as a library reference; or
(E) When otherwise justified by circumstances.
(ii) Filing procedure. (A) Participants filing material as a
library reference shall provide contemporaneous written notice of this
action with the Commission and other participants, in accordance with
applicable service rules. Participants shall file two hard copies of
the designated material with the Commission's docket section. The
notice shall set forth with particularity the reason(s) the material is
being designated as a library reference, with reference to paragraph
(b)(2)(i) of this section, and
(1) Describe what the material consists of or represents;
(2) Explain how the material relates to the participant's case or
to issues in the proceeding;
(3) Indicate whether the material contains a survey or survey
results; and
(4) Provide a good-faith indication of whether the participant
anticipates seeking admission of the material, in whole or in part,
into evidence.
(B) The notice shall also identify authors or others materially
contributing to the preparation of the library reference, identify the
testimony, exhibit, or interrogatory, if applicable, to which the
library reference relates, or indicate why this information cannot be
identified. If the participant filing the
[[Page 71255]]
library reference anticipates seeking to enter all or part of the
material contained therein into the evidentiary record, the notice also
shall identify portions expected to be entered and the expected
sponsor(s).
(iii) Labels and descriptions. Material 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:
(A) The proceeding and document or issue to which the material
relates;
(B) The identity of the participant designating the library
reference;
(C) The identity of the witness or witnesses who will be sponsoring
the material or the reason why a sponsoring witness or witnesses cannot
be identified; and, to the extent feasible,
(D) Other library references or testimony that utilize information
or conclusions developed therein. 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 adequate identification of the predecessor material.
(iv) 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. The electronic version shall include the same,
or similar, information required to be included in the preface or
summary.
(v) 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.
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Dated: December 17, 1998.
Margaret P. Crenshaw,
Secretary.
[FR Doc. 98-33909 Filed 12-23-98; 8:45 am]
BILLING CODE 7710-FW-P