[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

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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.
* * * * *
    Dated: December 17, 1998.
Margaret P. Crenshaw,
Secretary.
[FR Doc. 98-33909 Filed 12-23-98; 8:45 am]
BILLING CODE 7710-FW-P