[Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
[Proposed Rules]
[Pages 52725-52731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25257]


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POSTAL RATE COMMISSION

39 CFR Part 3001

[Docket No. RM98-2; Order No. 1263]


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 a previous proposal to 
revise 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 October 20, 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 its initial proposal 
to revise rule 31(b) (39 CFR 3001.31(b)). The Commission received eight 
sets of comments on the proposal. In order no. 1223 (issued December 
24, 1999), the Commission proposed further revisions. These were 
published in the Federal Register on December 24, 1998 (63 FR 71251). 
The Commission received three sets of comments on the amended version 
of the rule. Comments on both orders are available for public 
inspection in the Commission's docket section. They also can be 
accessed electronically at www.prc.gov. The Commission issued this 
order (no. 1263) proposing further revisions on September 23, 1999. It 
directed interested parties are invited to submit comments following 
publication of this proposal in the Federal Register (see Dates for the 
deadline) and directed the Secretary to cause this order to be 
published in the Federal Register, in accordance with all applicable 
regulations of the Office of the Federal Register.

Introduction

    This is the third order the Commission has issued in a rulemaking 
revising rule 31(b) provisions on the practice of filing library 
references. It briefly describes previous proposals, addresses various 
comments, and presents further proposed revisions. The proposed changes 
reflect the same focus on limited administrative improvements as the 
earlier proposals, but place greater emphasis on the role of the notice 
in providing relevant information. Inclusion of a detailed preface or 
summary, which had been proposed as a mandatory requirement, is made 
optional. New provisions, based on a Postal Service analysis, identify 
six categories of library references. The proposal also clarifies when 
library references may be filed and when special requests for service 
can be made. The rule has been reorganized and renumbered to reflect 
these changes (consistent with Office of the Federal Register style.) 
Minor editorial revisions also have been made.

I. Summary of Initial Proposal (Order No. 1219)

    The initial set of provisions issued in this rulemaking listed the 
circumstances when material could be filed as a library reference. The 
list reflected the practice that had grown up around the existing rule. 
It included the following independent considerations: When physical 
characteristics (such as bulk or volume) make service of the material 
unduly burdensome; when the material is of limited interest to the 
entire service list; when the material qualifies as a secondary source; 
when reference to the material is made easier or otherwise facilitated; 
or when otherwise justified by circumstances, as determined by the 
Commission or presiding officer.
    The initial proposal also required those who file library 
references (``filers'') to provide detailed information and related 
disclosures about the material in both an accompanying motion and in a 
preface or summary contained in the library reference. This represented 
a change in practice, as the long-standing rule has required only a 
notice with minimal information. The proposal also required submission 
of an electronic version of material.

[[Page 52726]]

II. Second Proposal (Order No. 1223)

A. Summary of Provisions
    The second set of revisions eliminated the motion requirement. It 
reinstated the notice, specifying that it include the same type of 
information and disclosures the motion would have had to provide. It 
retained the separate preface requirement. The proposal limited the 
circumstances justifying submission of a library reference by requiring 
consideration of the material's physical characteristics (as they 
relate to service) in conjunction with one of the other long-recognized 
circumstances. It also clarified requirements for the contents of the 
notice; increased the number of hard copies required to be filed from 
one to two; and limited special requests for service.
B. Summary of Comments
    The Commission received comments from the Postal Service, the 
Office of the Consumer Advocate (OCA) and David Popkin (Popkin) on the 
second version of the rule. Further Comments of the United States 
Postal Service (February 1, 1999); Renewed Request for Informal 
Conference and OCA Comments in Response to Order No. 1223 on Proposed 
Revisions to Commission Rules on Library References (February 1, 1999); 
and Correspondence of David B. Popkin (January 23, 1999). (Hereafter, 
``Postal Service Comments,'' ``OCA Comments,'' and ``Popkin 
Comments.'')
C. Commenters' Positions in General
    The Postal Service's position. The Service provides this 
perspective on its practice with respect to library references:

    In past general rate cases, the Postal Service typically has not 
filed as a `library reference' material it intended to be admitted 
directly into the evidentiary record. Rather, such material has been 
filed as testimony. In Docket No. R97-1, however, this historical 
practice may have become obscured. As a result of the events of that 
proceeding, the Postal Service now anticipates (and would even in 
the absence of this rulemaking) that more material of the type that 
in the past may have been submitted as library references will 
simply be filed as testimony.

Postal Service Comments at 9 (footnotes omitted).
    The Commission believes that the Service's representations 
regarding future filings provide a sound basis for assuming that the 
most serious problems associated with library references in Docket No. 
R97-1 will not recur. At the same time, the Commission finds that 
improvements in the basic administration of the library reference 
practice are still needed. In particular, the Commission wants to 
insure that the notice accompanying each library reference provides 
information that adequately identifies the contents and discloses how 
it relates to an issue or may be used in a case. Also, the Commission 
believes the practice of filing library references should be limited to 
appropriate circumstances and categories of material.
    Other concerns. The Service objects to the proposal's across-the-
board application to all library references, as well as to many 
specific provisions. It claims further revisions are needed if the 
Commission's apparent objectives are to be achieved without unduly 
burdening the Postal Service. The Service renews its request for an 
informal conference, but says the focus could be narrower than 
originally proposed. In support of this approach, the Service claims 
(without detailed explanation) that problems and solutions could be 
explored more efficiently in a conference than through the written 
comment-and-reply process.
    The Service also notes that it has identified six categories of 
library references, and suggests that these groupings could serve as a 
basis for discussion at the conference. However, it further states that 
it believes five of the six categories--all but ``All Other 
Material''--should be exempt from the proposed requirements (as amended 
to reflect other concerns the Service raises). The Service's rationale 
is that to the extent there was legitimate controversy over library 
references in Docket No. R97-1, all of the material at issue was within 
proposed Category 6 (All Other Material). Postal Service Comments at 1-
2.
    The OCA's position. The OCA generally asserts that the Commission's 
proposal is not sufficiently thorough. It urges further amendments 
incorporating some of the suggestions it offered in its initial 
comments. These include a comprehensive cross-walk or ``road map'' 
linking library references to witnesses; a continuing obligation to 
update the cross-walk; and production of survey data at the time survey 
results are filed, along with specific relief if such data are not 
contemporaneously filed. OCA Comments at 1-3.
    The OCA asks that the Commission provide an avenue of relief if the 
new requirements are ignored or abused and seeks clarification of the 
circumstances under which a library reference can be filed. Id. at 2. 
It notes that it continues to believe that adjustments that are 
closely, but not necessarily directly related to, the library reference 
practice could be included in this rulemaking. Id. The OCA also 
questions the adequacy of the Commission's explanation of how it 
balanced the burdens associated with the library reference practice. 
Id. at 5-6. It emphasizes that reviewers shoulder a considerable 
burden, especially if the Commission does not require the Service to 
provide (and update) a cross-walk between testimony and library 
references. Id. at 6.
    Mr. Popkin's position. Mr. Popkin raises a concern about his 
ability to participate in an economical and effective manner, given 
that he does not work or reside in the Washington, DC area. In 
particular, he emphasizes the need for requiring the filer to provide a 
detailed description of the contents of library references. He also 
supports extending the right to make a special request for service to 
all library references. Popkin Comments at 1.
D. Commission Response
    Response to the Service's general concerns. The Commission has 
considered the Service's request for a conference, but is not convinced 
that this approach would be a more efficient way of developing 
improvements. The Service has not presented persuasive reasons why the 
issues under consideration are not suited to the notice-and-comment 
format traditionally used for changes of this nature. It is also not 
clear that a conference would elicit any more (or better informed) 
participation than the notice-and-comment approach. Therefore, the 
Commission plans to proceed with the rulemaking format.
    In response to the Service's concern over the rule's ``one-size 
fits all'' approach, the Commission notes that the underlying proposal 
assumed that participants would avail themselves of the opportunity to 
seek waiver of all or part of the proposed provisions (under rule 22) 
whenever appropriate. To make clear that waiver is an option, the 
Commission is adding a provision similar to that in rule 54(r). The 
proposed language reads as follows:

    Upon the filing of a motion showing good cause, the Commission 
may waive one or more of the provisions relating to library 
references. Motions seeking waiver may request expedited 
consideration and may seek waiver for categories of library 
references.

    The Commission considers this approach preferable to the Service's 
suggestion, which sets up a structure for categorizing library 
references, only to exempt all but one category from application of the 
rule. The Commission nevertheless believes the proposed categories have 
considerable utility for a

[[Page 52727]]

number of purposes, including as a frame of reference when requests for 
waiver are filed or when special requests for copies are made. 
Therefore, the proposed rule identifies and defines them essentially as 
suggested by the Service.
    Response to OCA's general concerns. The OCA requests more extensive 
cross-referencing to library references than the Commission has 
proposed and wants survey data to be provided when the survey results 
are initially filed. In the rule proposed here, the Commission is not 
including the requested approach to survey data, as it believes this 
expands the rulemaking beyond the limits established early on. However, 
the Commission is adopting a limited cross-referencing requirement. The 
Commission does agree with the basic OCA premise that the rule should 
clearly set out the current expectation that testimony and exhibits 
presented in Commission proceedings should contain adequate citation 
for specifically referenced source material. Therefore, language is 
added to rule 31(b) to make current expectations more explicit. See 
rules 31(k) and 54(o).
    With respect to the adequacy of the explanation of burden, the 
Commission assumed it was clear that complying with the new provisions 
would fall most heavily on the Service, as it generally files the most 
library references. Eliminating mandatory motion practice was one means 
of reducing burden on the Service. Increasing the amount of information 
provided in the notice was a way of reducing a reviewer's burden.
    A comprehensive cross-walk linking testimony and library references 
would further assist a reviewer, but the Commission is not convinced 
that the job of preparing one, at least on the scale required for 
omnibus cases, is as simple as the OCA asserts. There are complexities 
associated with the Service's preparation of a formal request, and the 
Commission does not seek to add to them unnecessarily by mandating 
preparation of a cross-walk, unless it becomes apparent that this is 
essential as a matter of due process. However, should the Service 
prepare even a limited or partial cross-walk in the course of 
organizing its filing, the Commission hopes this document (and any 
updates) would be made available to the entire service list on a 
voluntary basis. Additionally, discovery requests for such information 
are permissible.
    The elimination of the motion requirement, as the OCA notes, also 
eliminates an explicit avenue for relief, should the notice be 
deficient (or not filed at all). The Commission has considered the need 
for providing a specific enforcement mechanism in its revised proposal 
to address other situations, but has concluded that an aggrieved 
reviewer can seek redress either informally (preferably by asking the 
filer to provide any missing information) or by seeking special relief 
from the Commission.
    Response to Popkin. The retention of requirements specifying that 
certain information and disclosures be made in the notice addresses 
Popkin's concerns about a reviewer's ability to determine the contents 
of a library reference. The Commission continues to believe that 
opportunities to make a special request for service of material filed 
as a library reference should be limited. In maintaining this position, 
the Commission notes its expectation that the Service (and other 
filers) will be including in testimony and exhibits much of the type of 
information that has been filed as a library reference in the past.

III. The Service's Proposed Library Reference Categories

    The Service has grouped the library references it filed in Docket 
No. R97-1 into six categories. The categories are Reporting Systems 
Material (Category 1); Witness Foundational Material (Category 2); Pure 
Reference Material (Category 3); Material Provided in Response to 
Discovery (Category 4); Disassociated Material (Category 5); and All 
Other Material (Category 6). See generally Postal Service Comments at 
16-27.
    Under the Service's approach, Category 1 consists of library 
references relating to the Service's statistical cost and revenue 
reporting systems and their primary outputs. The Service notes that 
this category could be further subdivided into two groups, with one 
consisting of documentation (such as handbooks and manuals) and the 
other consisting of data generated by the reporting systems, related 
reports, or any data compilations generated in the process of producing 
final reports. Id. at 16-17.
    Category 2 (Witness Foundational Material) consists of material 
relating to the testimony of specific witnesses. The Service says this 
material provides access to the information identified by rule 31 as 
necessary to the establishment of a proper foundation for receiving 
into evidence the results of studies and analyses. It also notes that 
much of this information is typically provided, at least in part, in 
electronic format. Id. at 20.
    Category 3 (Pure Reference Material) consists of previously 
published material provided for the convenience of the reader. The 
Service says this category includes materials such as entire books, 
portions of books, articles, reports, manuals, handbooks, and 
contracts. Id. at 22. Category 4 (Material Provided in Response to 
Discovery) consists of material provided in response to discovery 
requests. Id. at 23. Category 5 (Disassociated Material) consists of 
material provided by a party, at the request of another, from which the 
filing party wishes to be disassociated. The Service characterizes this 
as material filed ``under protest,'' when the filing party wishes to 
make clear that it is neither vouching for, nor in any way sponsoring, 
the material that is provided. Id. at 26. Category 6 (All Other 
Material) consists of library references not fitting any of the other 
categories. Id. at 27.

IV. Section-by-Section Summary

    The following discussion assumes that the changes referred to are 
being made to the second set of rules issued in Order No. 1223 (also 
referred to here as the underlying proposal). Numbering reflects Office 
of Federal Register style preferences.
A. Paragraph (b)(1) of Section 31
    General introduction to provisions on documentary material. The 
underlying proposal left this provision unchanged from the version 
currently in effect, except for minor editorial and organizational 
changes. These included changing the heading from ``Documentary'' to 
``Documentary material--(1) General.'' Also, the last two sentences of 
this provision (which address the evidentiary status of material 
contained in library references) were relocated to a separate paragraph 
under section 31(b)(2) and captioned ``Status of library references.''
    Commenters positions. No commenter addresses the minor changes the 
Commission proposed in this subsection, but the OCA asks that a 
sentence be added to emphasize the need for specific references in all 
testimony and exhibits. The proposed language reads: ``Exhibits 
prepared for Commission proceedings shall cite with specificity the 
page and, if necessary for comprehension, the line number, of specific 
portions of testimony, exhibits, library references or other referenced 
material.'' OCA Comments at 8.
    Commission response. The Commission supports adequate citation to 
sources in all filings, and adopts a variation on the OCA's proposal.

[[Page 52728]]

B. Underlying Paragraph (b)(2) of Section 31--General Presentation of 
Provisions on Library References
    To reduce the need for extensive renumbering of succeeding 
provisions in the Commission's rules of practice, both of the previous 
versions organized the provisions on library references into a newly-
designated paragraph 31(b)(2). This approach is retained in the set of 
rules proposed here. Further changes affecting the numerical 
designation of internal subdivisions are identified below.
C. Underlying Paragraph 31(b)(2)(i)
    Definition of library reference; recognition of related practice; 
circumstances for filing. In the underlying proposal, the first 
sentence stated that a library reference is a generic term or label 
that may be used to identify or refer to certain documents or things 
filed with the Commission's document room. The second sentence stated 
that the practice of filing library references is authorized primarily 
as a convenience to filing participants and the Commission. The third 
sentence identified the situations or circumstances when a library 
reference may be filed. These included when the physical 
characteristics make compliance with service requirements burdensome 
and any one of the following factors exist: limited interest; status as 
a secondary source; when reference to the material would be 
facilitated; or when otherwise justified by circumstances.
    The formulation of the first sentence generated no opposition. It 
appears in the version presented here as it did in the underlying 
version. Following this sentence, the Commission is adding a new 
provision identifying and describing six categories of library 
references. The wording closely tracks the Postal Service's 
suggestions. This addition (paragraph (b)(2)(i) of section 31) reads as 
follows:
    Participants are encouraged to identify and refer to library 
reference material in terms of the following categories:
    Category 1--Reporting Systems Material (consisting of library 
references relating to the Postal Service statistical cost and revenue 
reporting systems, and their primary outputs); Category 2--Witness 
Foundational Material (consisting of material relating to the testimony 
of specific witnesses, primarily that which is essential to the 
establishment of a proper foundation for receiving into evidence the 
results of studies and analyses); Category 3--Reference Material 
(consisting of previously published material provided for the 
convenience of the reader, such as books, chapters or other portions of 
books, articles, reports, manuals, handbooks, guides, and contracts); 
Category 4--Material Provided in Response to Discovery (consisting of 
material submitted in answer to discovery requests); Category 5--
Disassociated Material (consisting of material provided at the request 
of another, from which the filing party disassociates itself, 
especially in terms of vouching for or sponsoring the material); 
Category 6--All Other Material (consisting of library references not 
fitting any of the other categories).
    Because of the addition of this language, the second sentence in 
the underlying version is redesignated as paragraph (b)(2)(ii) of 
section 31. The Commission has considered, but rejected, a change in 
the wording of this sentence based on the Postal Service's observation 
that in some instances, such as when it complies with a request for 
production of documents under rule 26, filing material as a library 
reference may be a convenience for the requesting party. The Commission 
notes that the reference to convenience is qualified with the term 
``primarily.'' This leaves open other possibilities, such as the 
situation the Service raises; therefore, this provision is not revised.
D. Underlying Paragraph (b)(2)(i)(A)-(E) of Section 31
    Circumstances under which a library reference may be filed. The OCA 
points out that the Commission's revision links physical 
characteristics that presumably make service unduly burdensome with one 
of the circumstances enumerated in the following subsections. The OCA 
contends that this is contrary to the sense of the initial proposal, 
and asserts that this restricts the filing of library references to 
documents too burdensome to serve. OCA Comments at 12.
    Commission response. The presentation in the underlying version was 
based on the Commission's assessment that the practice of filing 
library references should be limited, in accordance with the original 
intent of the rule. (The size of a document in terms of number of pages 
was a major concern when the rule was originally promulgated.) It also 
recognized that as the ability to produce material in electronic format 
increases, there are likely to be fewer instances when material is too 
voluminous to serve in the traditional hard-copy sense.
    The Commission is retaining the more limited approach of the 
underlying version in the accompanying set of rules, but is revising it 
in two respects. First, the provision for filing when otherwise 
justified by circumstances--which now appears as paragraph (b)(2)(i)(E) 
of section 31--is established as a consideration independent of 
physical characteristics. It appears as paragraph (b)(2)(iii) of 
section 31. Second, a provision is added as paragraph (b)(2)(ii) of 
section 31 to recognize that a filer may seek to comply with a 
discovery request for production of documents or things by making the 
material available as a library reference, without the need for special 
approval or waiver.
    Special requests. In the underlying version, the Commission 
proposed limiting special requests to situations meeting the terms of 
section 31(b)(2)(i)(A) and (B)--when the physical characteristics of 
the material would make service unduly burdensome and the material was 
of limited interest. The filer was to provide a copy of the requested 
material within three days or, in the alternative, inform the 
requesting participant of certain matters, including when the material 
would be available. The Commission's commentary noted that absence of a 
specific authorization for special requests in other instances did not 
automatically foreclose a participant from making a request.
    The Service observes, with respect to special requests, that it 
``has serious concerns about any draft provision which might be 
construed to entitle parties to copies of substantial portions of the 
set of library references filed with the case.'' Postal Service 
Comments at 6-7. It says: ``In this respect, directly limiting 
application of the `extra copy' provisions of the proposed procedures 
by reference to the categories suggested by the Postal Service * * * 
would likely be more effective.'' Id. at 8.
    Mr. Popkin notes that he has had a problem in the past with 
obtaining material that has been filed as a library reference. It 
appears that the material in question may have been filed in response 
to a request for production of documents (under rule 26). As the 
Service notes, the terms of rule 26 direct the responding party to make 
the material available for inspection and copying, but do not require 
service.
    Special requests are a challenging issue. The Commission continues 
to oppose an across-the-board allowance for special requests. It also 
believes that the growing ability to produce and distribute most 
material in an electronic format reduces the need for participants to 
make special requests for hard-copy service. Also, the Commission 
believes that exposing the filer of a library

[[Page 52729]]

reference to the potential for repeated requests for service diminishes 
the extent to which the practice of filing a library reference is a 
convenience.
    Based on further consideration of these points and others raised by 
the commenters, the Commission proposes a separate provision on special 
requests. This provision sets out the basic policy that special 
requests for service are not encouraged and that no blanket requests 
for service of library reference material may be made. It further 
provides that special requests must be made in the form of a detailed 
motion.
E. Underlying Paragraph (b)(2)(ii) of Section 31--Filing Procedure
    In the underlying version, this paragraph states that library 
references are to be accompanied by a contemporaneous notice, and 
specifies that two hard copies of the material are to be filed. It also 
outlines the information that is to be included in the notice. The 
filer must describe what the material consists of or represents; how 
the material relates to the participant's case or to issues in the 
proceeding; and whether the material contains a survey or survey 
results. Filers must also address certain matters related to the 
material's potential use as evidence and its relationship to other 
documents. These include disclosing whether the participant anticipates 
seeking admission of the material into evidence; identifying authors or 
others who make a material contribution; identifying related documents; 
identifying portions of the material that may be entered into evidence; 
and identifying the expected sponsor. A companion provision, in 
underlying paragraph 31(b)(2)(iii), requires library references to 
include a preface, and sets out the information and disclosures that 
must be presented therein.
    Commenters' positions. The Postal Service acknowledges that it 
opposed the motion requirement, but says it is not satisfied with the 
Commission's notice alternative because it does nothing to lessen the 
burden on the Postal Service. Instead, the Service says it ``merely 
substitutes what amounts to virtually the same content requirements for 
the required notice as were initially proposed for the motion.'' Postal 
Service Comments at 2-3.
    The OCA says it does not seek reinstatement of the motion 
requirement, but raises a concern that there is no clear avenue of 
relief for those who believe a filing participant has failed to satisfy 
the new requirements. It asks that the Commission explicitly provide 
one. OCA Comments at 1-2.
    Commission response. Given the minimal information that has been 
provided in many notices, adoption of almost any new requirements would 
entail more effort from the Service or any other participant filing a 
library reference. However, the Commission believes that most of its 
proposed requirements are sound, and retains many of them in the final 
version. However, as discussed below, it is eliminating the preface as 
a mandatory item in library references.
    Contents of the required notice. The Service supports requiring a 
description of the contents of the library reference and an explanation 
of how it relates to other material in the case. However, it asserts 
that requiring the filing party to state whether the material contains 
a survey or survey results, can ``safely be omitted'' because it is 
unclear why a special provision should be devoted exclusively to an 
indication of this nature. Postal Service Comments at 12.
    The Service also claims that certain other requirements are ``of 
mixed utility.'' For example, it notes that the notice is to set forth 
the reason why the material is being designated as a library reference. 
The Service observes that while wanting to know why the library 
reference is being submitted is understandable in the abstract, the 
reasons are usually fairly obvious in practice, especially for those 
involving entire categories the Service requests be exempted from the 
rules. Id. The Service also questions the provision requiring 
identification of authors or others materially contributing to the 
preparation of the library reference. Id. As an example, it cites the 
production of a spreadsheet, and questions why the filer must provide 
the identity of individuals who only assist in its preparation. Id. at 
13.
    The underlying version also includes a requirement that the filing 
participant disclose whether the material contains survey results. Both 
the Service and the OCA address this provision, but their interests are 
significantly different. The OCA's concern is that the Commission's 
proposal is not an adequate substitute for its original request that 
the Commission require survey data to be filed at the time the survey 
results are submitted. The Service, on the other hand, asks why this 
requirement is included, since it expects this information would be 
provided in the required description.
    Commission response. Although the Service asserts that the reason 
for filing a library reference is ``usually fairly obvious,'' the 
Commission continues to believe that the notice would be of more 
assistance to reviewers if this information is provided. The underlying 
version required filers to address this in terms of the circumstances 
set out in the rule. Given the addition of the list of categories, the 
Commission proposes that filers identify the category of the material 
as well.
    The Commission believes the Service reads too much into the 
requirement for identification of ``authors or others materially 
contributing to the preparation of the library reference.'' The rule 
does not require filing participants to list those providing clerical, 
secretarial, or related administrative assistance in connection with 
the material. The ``others'' referred to should be presumed to stand in 
essentially the same relationship to the material as does an 
``author.'' In providing direction regarding the interpretation of this 
phrase, the Commission expects filing participants and reviewers to 
exercise good judgment in complying with this requirement. For example, 
in the case of a spreadsheet prepared by an assistant, it may be 
adequate to indicate that the material was prepared under the direction 
of a certain witness.
    With respect to survey results, the Commission notes that it 
regarded the OCA's original suggestion regarding contemporaneous filing 
of survey results among those that were beyond the scope of this 
limited rulemaking. However, the Commission also believed that one 
objective of the rule--more extensive disclosure of the contents of the 
material contained in the library reference--would be enhanced if 
survey results were specifically identified. As surveys may require 
more extensive or more expert analysis than other material, the 
Commission continues to believe it is appropriate for this information 
to be disclosed. However, in line with the Service's observation that 
survey results are the type of description that might be provided in 
response to the requirement of a general disclosure of contents, the 
wording of the accompanying set of rules is amended to reflect this. 
Several minor editorial changes are made to other provisions to clarify 
the extent of the required disclosures.
    The OCA's proposal that this paragraph include a requirement for a 
cross-walk or ``road map.'' In line with its interest in a cross-walk, 
the OCA proposes adding the following paragraph to this provision:

    The filing shall include a listing, by witness, of those 
witnesses who rely upon or cite to the library reference together 
with specific references to pages and schedules in testimony and 
exhibits where the library reference is cited. The listing shall be

[[Page 52730]]

updated as additional library references are filed.

OCA Comments at 7.
    Commission response. The Commission declines to adopt the proposed 
amendment, for reasons discussed earlier.
F. Underlying paragraph (b)(2)(iii) of Section 31
    Labels, descriptions (including information to be provided in a 
preface or summary with library reference itself), and related 
disclosures. The first sentence of the underlying provision directs the 
filing participant to use standard notation to label the library 
reference and to comply with any additional requirements that may be 
imposed by the presiding officer or the Commission. This provision has 
not been controversial. It is retained in the third version, but the 
caption is changed to ``Labeling'' to reflect a change in the 
organization of the rule. The second sentence in the underlying 
paragraph is replaced with text identifying the inclusion of a detailed 
preface as an option. It is also redesignated.
    Elimination of mandatory inclusion of a preface or summary. The 
underlying proposal requires that material designated as a library 
reference include a preface or summary addressing the following points: 
the proceeding and document or issue involved; the identity of the 
designating participant; the identity of the sponsoring witness or 
witnesses (or the reason why this cannot be provided); to the extent 
feasible, other library references or testimony that utilize 
information or conclusions developed therein; and whether the library 
reference is an update or revision to a library reference filed in 
another Commission proceeding.
    Commenters' positions. The Service says that to the extent it 
agrees information listed in this subsection is necessary, the 
information has been provided in the vast majority of instances. 
However, it also contends that not all of the information is necessary. 
It further notes that in some instances, such as when the material is a 
pre-existing document, it may be difficult or impossible to comply, and 
not necessary if the notice is adequate. Id. at 13-14. It also objects 
to the requirement of identifying ``other library references or 
testimony that utilize information or conclusions developed therein'' 
to the extent it calls for an exhaustive list of all downstream 
testimony or library references, but agrees to the extent it applies to 
material developed primarily to support a particular study or 
testimony.
    Commission response. The version proposed here makes inclusion of a 
detailed preface or summary an option. In addition, the Commission is 
requiring some of the disclosures that were to be included in the 
preface to be set forth in the expanded notice requirement.
G. Subsection 31(b)(2)(iv)--Electronic Versions of Library References
    The underlying version requires an electronic version, or an 
explanation of why an electronic version cannot be provided.
    Commenters' positions. The Service observes, in connection with 
this requirement, that the universe of library references can largely 
be bifurcated into those which exist as library references because they 
are entirely electronic or have an electronic component, and those 
consisting of voluminous hard copy material for which no electronic 
version is available. It further says that increasingly, voluminous 
hard copy material is not likely to be filed if an electronic version 
could be filed more easily. The Service believes the intended result 
will be substantially achieved with or without any formal rule change. 
Id. at 15-16. It says it would prefer a rule which simply encourages 
parties to file electronic versions of library reference material 
whenever possible. Id. at 16.
    Commission response. The Commission acknowledges the trend toward 
increased filing of material in an electronic format, but declines to 
alter the proposed provision in the manner suggested by the Postal 
Service. However, the Commission amends this provision to encourage the 
inclusion of a preface containing the information and disclosures 
required to be provided in the notice. The Commission believes that 
including a detailed preface would assist reviewers in instances where 
the notice is not readily available.
H. Underlying Paragraph (b)(2)(v) of Section 31--Status of Library 
References
    This provision remains unchanged, but it is redesignated.
I. Waiver
    As explained earlier, the Commission anticipated that the Service 
or other filers would file a motion for waiver of operation of various 
library reference provisions when deemed appropriate. To make clear 
this option exists, the Commission is including a specific provision 
(described earlier.)
J. Number of Copies
    The accompanying version retains the requirement (in the underlying 
version) that two hard copies be provided. This language appears in a 
separate provision.

V. Set of Rules

    The set of rules the Commission is proposing follows.

    Dated: September 23, 1999.
Margaret P. Crenshaw,
Secretary.

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 part 3001 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. Testimony, exhibits and 
supporting workpapers prepared for Commission proceedings that are 
premised on data or conclusions developed in a library reference shall 
provide the location of that information within the library reference 
with sufficient specificity to permit ready reference, such as the page 
and line, or the file and the worksheet or spreadsheet page or cell. 
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.

[[Page 52731]]

    (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. To the extent possible, material filed as 
a library reference shall be identified and referred to by participants 
in terms of the following categories:

    Category 1--Reporting Systems Material (consisting of library 
references relating to the Service's statistical cost and revenue 
reporting systems, and their primary outputs); Category 2--Witness 
Foundational Material (consisting of material relating to the 
testimony of specific witnesses, primarily that which is essential 
to the establishment of a proper foundation for receiving into 
evidence the results of studies and analyses); Category 3--Reference 
Material (consisting of previously published material provided for 
the convenience of the reader, such as books, chapters or other 
portions of books, articles, reports, manuals, handbooks, guides, 
and contracts; Category 4--Material Provided in Response to 
Discovery (consisting of material provided in response to discovery 
requests); Category 5--Disassociated Material (consisting of 
material at the request of another, from which the filing party 
wishes to be disassociated, is not vouching for or sponsoring the 
material provided); Category 6--All Other Material (consisting of 
library references not fitting any of the other categories).

    (ii) The practice of filing a library reference is authorized 
primarily as a convenience to filing participants and the Commission 
under certain circumstances. These include 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 one of the following considerations apply:
    (A) 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,
    (B) 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,
    (C) Reference to, identification of, or use of the material would 
be facilitated if it is filed as a library reference; or
    (D) The material is filed in compliance with a discovery request 
for production of documents or things.
    (iii) Other circumstances. If a participant considers it 
appropriate to file material as a library reference, but for the 
inability to satisfy the terms set out in paragraphs (b)(2)(ii)(A)-(D) 
of this section, the material may be filed (by means of a notice) 
subject to the following conditions:
    (A) Inclusion in the accompanying notice of a detailed explanation 
of the reason for filing the material under this provision;
    (B) Satisfaction of all other applicable requirements relating to 
library references; and
    (C) the Commission's right to refuse acceptance of the material in 
its docket room and its right to take other action to ensure 
participants' ability to obtain access to the material.
    (iv) Filing procedure. Participants filing material as a library 
reference shall provide contemporaneous written notice of this action 
to the Commission and other participants, in accordance with applicable 
service rules. The notice shall:
    (A) Set forth the reason(s) why the material is being designated as 
a library reference, with specific reference to paragraphs (b)(2) (ii) 
and (iii) of this section;
    (B) Identify the category into which the material falls and 
describe in detail what the material consists of or represents, noting 
matters such as the presence of survey results;
    (C) Explain in detail how the material relates to the participant's 
case or to issues in the proceeding;
    (D) Identify authors or others materially contributing to 
substantive aspects of the preparation or development of the library 
reference;
    (E) Identify the documents (such as testimony, exhibits, an 
interrogatory) or request to which the library reference relates, to 
the extent practicable;
    (F) Identify other library references or testimony relied upon or 
referred to in the designated material, to the extent practicable;
    (G) Indicate whether the library reference is an update or revision 
to a another library reference and, if it is, clearly identify the 
predecessor material; and
    (H) To the extent feasible, identify portions expected to be 
entered and the expected sponsor (if the participant filing a library 
reference anticipates seeking, on its own behalf, to enter all or part 
of the material contained therein into the evidentiary record).
    (v) Labeling. 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.
    (vi) Optional preface or summary. Inclusion of a preface or summary 
in a library reference addressing the matters set out in paragraphs 
(b)(2)(iv)(A)-(H) of this section is optional.
    (vii) 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. Participants are encouraged to include in the 
electronic version the information and disclosures required to be 
included in the accompanying notice.
    (viii) Number of copies. Except for good cause shown, two hard 
copies of each library reference shall be filed.
    (ix) Special requests. Special requests for service of material 
filed as a library reference are not encouraged. Special requests must 
be made in the form of a detailed motion setting forth the reasons why 
service is necessary or appropriate.
    (x) Waiver. Upon the filing of a motion showing good cause, the 
Commission may waive one or more of the provisions relating to library 
references. Motions seeking waiver may request expedited consideration 
and may seek waiver for categories of library references.
    (xi) 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.

[FR Doc. 99-25257 Filed 9-29-99; 8:45 am]
BILLING CODE 7710-FW-P