[Federal Register Volume 64, Number 231 (Thursday, December 2, 1999)]
[Rules and Regulations]
[Pages 67487-67491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31126]



[[Page 67487]]

=======================================================================
-----------------------------------------------------------------------

POSTAL RATE COMMISSION

39 CFR Part 3001

[Docket No. RM98-2; Order No. 1273]


Revisions to Library Reference Rule

AGENCY: Postal Rate Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document adopts final changes to rules on the use of 
library references. The changes clarify and improve administrative 
aspects of this practice.

DATES: Effective December 2, 1999.

ADDRESSES: Send correspondence concerning this document to the 
attention of Margaret P. Crenshaw, Secretary, Postal Rate Commission, 
1333 H Street NW., Suite 300, Washington, DC 20268-0001.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
Postal Rate Commission, 1333 H Street NW., Washington, DC 20268-0001, 
202-789-6820.

SUPPLEMENTARY INFORMATION:

Regulatory History

    The Commission published an initial proposal to revise the library 
reference in order no. 1219 (63 FR 47456, Sept. 8, 1998). Further 
proposed revisions were published in order No. 1223 (63 FR 71251, Dec. 
24, 1998) and order No. 1263 (64 FR 52725, Sept. 30, 1999).

Introduction

    The Commission initiated this rulemaking to improve the 
administration of the library reference practice. In particular, it has 
sought to clarify the role of library references in formal proceedings, 
to address the responsibilities of those who file library references, 
and to assist those who wish to review them. The scope of the docket, 
the rationale for specific proposals, and commenters' suggestions have 
been discussed extensively in the course of several previous orders. 
See order No. 1219 (63 FR 47456, Sept. 8, 1998); order No. 1223 (63 FR 
71251, Dec. 24, 1998); and order No. 1263 (64 FR 52725, Sept. 30, 
1999). At this point, the Commission finds that remaining concerns 
about the wording or effect of certain provisions can be resolved 
through clarification in the ensuing discussion and with minimal 
changes to the most recent proposal (set out in order No. 1263). The 
changes include adoption of a compromise suggested by one commenter on 
the issue of obtaining service of certain library references, 
clarification of whether the ``unduly burdensome'' consideration 
factors into filing a library reference under ``other circumstances,'' 
and minor editorial revisions.

I. Review of Comments Filed in Response to Order No. 1263

    The Commission received comments from Douglas F. Carlson (Carlson), 
David B. Popkin (Popkin), the Office of the Consumer Advocate (OCA), 
and the Postal Service in response to the set of provisions proposed in 
order No. 1263. See Carlson Comments on Proposed Revisions to Library 
Reference Practice (October 15, 1999); Popkin Comments in Response to 
Order No. 1263 on Further Proposed Revisions to Library Reference 
Practice (Third Set) (October 16, 1999); OCA Comments in Response to 
Order No. 1263 on Further Proposed Revisions to Library Reference 
Practice (Third Set) (October 13, 1999); and Postal Service Comments on 
Third Set of Proposed Revisions to Library Reference Practice (October 
20, 1999). (Hereafter, Carlson Comments, Popkin Comments, OCA Comments, 
and Postal Service Comments.)
    Carlson's comments. Carlson notes that under the proposed rules, a 
party may request that a copy of a library reference be served if 
``interest . . . 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.'' Carlson Comments at 1, citing proposed rule 
31(b)(2)(ii)(A). He supports this approach, but objects to the 
treatment the proposal accords a library reference containing material 
that is filed in compliance with a discovery request for production of 
documents or things. In this circumstance, Carlson notes that the filer 
is not required to comply with special requests, but may be required to 
serve the material upon the filing of a detailed motion setting forth 
the reasons why service is necessary or appropriate. Id. at 2, citing 
proposed rule 31(b)(2)(ii)(D) and 31(b)(2)(ix). Carlson asserts that 
the motion requirement imposes a significant burden on parties located 
a long distance from Washington who wish to review particular library 
references. Specifically, he estimates that the motion requirement 
could generate up to $50 in additional expense and delay of at least 7 
to 10 days. Id. at 2-3. Carlson notes that he periodically has asked a 
party who has filed a library reference to provide him with a copy, and 
this has allowed him to obtain library references and avoid an 
expensive trip to Washington to view the material. He suggests that the 
Commission maintain the status quo or adopt an alternative that would 
require the party to serve the documents on the interrogating party 
upon request, while retaining the motion requirement for others. Id.
    Popkin's comments. Popkin expresses two main concerns about the 
proposal. One is how it affects his ability to determine the contents 
of the library reference without traveling to Washington; the other is 
the extra expense and time associated with the requirement of a motion 
to obtain the library reference. Popkin Comments at 1.
    With respect to determining the contents of a library reference, 
Popkin asserts that the tradeoff for not having to serve all 
participants should be a requirement that the filer provide a 
meaningful explanation of the library reference's contents. He also 
asks for clarification of the difference between the mandatory 
disclosures outlined in paragraph 31(b)(2)(iv) [regarding the contents 
of the required notice] and the optional preface or summary submitted 
with the library reference covered in paragraph (vi). Id. at 1. Popkin 
also says the explanation of the library reference should be available 
on the Commission's website so that participants will have easy and 
quick access to the material. Id. With respect to service, Popkin 
raises the same concerns Carlson expresses regarding the additional 
expense and work associated with the motion requirement. Also, Popkin 
says the term ``special requests'' in paragraph 31(b)(2)(ix) does not 
make clear whether the motion is required to obtain a reference on an 
occasional basis. Id. at 1.
    Paragraph 31(b)(2)(ii)(D) refers to material filed in compliance 
with a discovery request for production of documents or things. Popkin 
says this provision is not clear, and suggests that it be divided into 
two parts: one for items that are directly associated with the 
interrogatory question; the other for supporting data or information. 
He proposes that the first category be automatically furnished to the 
proponent of the interrogatory, and the second treated like any other 
reference. Id. at 2. Popkin also says the three-day service requirement 
contained in paragraph 31(b)(2)(ii)(A) should apply to (D) ``at a 
minimum.'' Id. at 2.
    The OCA's comments. The OCA prefaces its comments with the overall 
assessment that the proposed rules ``are workable and the requirement 
for a detailed notice will be an improvement over the current rules.'' 
OCA Comments at 1. At the same time, it notes that the Commission has 
not accepted its

[[Page 67488]]

suggestion for a cross-walk, reiterates its preference for this 
requirement, but indicates it is not pursuing this position in this 
round of comments. Id. at 1-2.
    Paragraph 31(b)(1): general introduction to provisions on 
documentary material. The OCA notes that the Commission has included in 
this provision a new sentence requiring that testimony, exhibits, and 
supporting conclusions premised on data or conclusions developed in a 
library reference provide the location of that information within the 
library reference. Id. at 2. The OCA suggests further expansion to 
require the location of underlying information developed in other 
testimony, other exhibits or other supporting workpapers. It proposes 
the following substitute:

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

Id. at 3.
    Paragraph 31(b)(2)(iii): other circumstances justifying the filing 
of a library reference. The OCA suggests that clarification of this 
provision, which permits the filing of any material as a library 
reference in unusual circumstances, is needed because it is not clear 
whether the ``unduly burdensome'' condition applies here as one of the 
``other applicable requirements'' of referenced paragraph 
31(b)(2)(ii)(B). Its position is that this criterion should be 
specifically included to remove any uncertainty.
    Paragraph 31(b)(2)(iv)(H). The OCA suggests adding the words ``into 
the record'' after the word ``entered.'' Id. at 4. With this change, 
the phrase would read: ``To the extent feasible, identify portions 
expected to be entered into the record * * *.''
    Paragraph 31(b)(2)(vi): optional preface or summary. The OCA 
suggests revising this paragraph to read: ``Inclusion of a preface or 
summary in a library reference addressing the matters set out in 
paragraph 31(b)(2)(iv)(A)-(H) is encouraged but optional.'' It contends 
that this will encourage the Postal Service to continue its 
acknowledged practice, in the vast majority of instances, of providing 
a preface to its library references. The OCA notes that this currently 
serves as a convenience to the participants and the Commission. Id.
    Paragraph 31(b)(2)(vii): electronic version. The OCA also suggests 
requiring the electronic version of the notice to accompany the library 
reference (if not already incorporated therein) on grounds that this 
will ``better insure ready access to the detailed notice.''
    The Postal Service's comments. The Postal Service observes that the 
proposed rules may prove generally satisfactory in most salient 
respects, but suggests several improvements. Postal Service Comments at 
1. The Service also notes that in previous comments, it indicated that 
it hoped that the outcome of this rulemaking would be useful new 
procedures that would not unnecessarily impair its ability to complete 
preparations for submission of a request for a recommended decision in 
the most expeditious manner possible or its ability to maintain a 
smooth and timely flow of information in response to discovery 
requests. With the exceptions identified in its comments, the Service 
says it believes the most recently proposed rules may be consistent 
with these objectives. Id. at 10.
    Paragraph 31(b)(1). The Service raises the possibility that the 
language the Commission adopted in apparent response to an OCA comment 
could be misinterpreted as meaning that every time a number that 
originates in a library reference is cited, it must be cross-
referenced. Moreover, the Service claims the Commission's proposal goes 
beyond what the OCA suggested, and proposes two alternatives. One 
entails striking the reference to testimony; the other involves 
rewriting the middle part of the sentence to read:

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

Id. at 5-6.
    The Service notes that this revision is consistent with the 
Commission's position that the purpose of this rulemaking is to pursue 
relatively narrow improvements. Id.
    Paragraph 31(b)(2)(ii): examples of physical characteristics 
rendering service unduly burdensome. The Postal Service suggests adding 
``or electronic format'' to the list of examples of physical 
characteristics. In support of this addition, it says: ``Many library 
references are filed as such because they consist of one or more 
diskettes or CDs--the electronic format most currently in vogue--and 
there certainly is no intention (nor should there be) to serve copies 
of such items on every party.'' Id. at 6-7.
    The Postal Service's reply to the OCA's comments. In addition to 
its own suggestions, the Service also addresses the OCA's comments. 
With respect to paragraph 31(b)(1), the Service says that the OCA's 
proposal to expand the new ``specificity'' provision to include 
citation to testimony, exhibits and workpapers, in addition to the 
citations to library references encompassed by the Commission's current 
proposal, exacerbates its concerns about the potential for 
misinterpretation. Id. at 7. Specifically, the Service asserts that 
this suggestion manifests no awareness of the difficulties inherent in 
preparing a postal rate filing, such as the need to revise testimony up 
to the printing deadline. The Service notes that these revisions change 
pagination and create ``ripple effects.'' Id. at 7-8. Given these 
circumstances, the Service urges a focus ``at a practical level'' on 
identifying and resolving real problems the parties might be 
experiencing under existing practices. Id. at 8.
    Paragraph 31(b)(2)(iii): The Service notes that the OCA suggests 
that the ``other applicable requirements'' language of this provision 
might not clearly incorporate the ``unduly burdensome'' condition 
referred to in the preceding paragraph. However, the Service points out 
the function of this provision is to deal with exceptional 
circumstances. Since it provides ample limitations against abuse, the 
Service contends that it seems much wiser to leave intact the 
flexibility afforded by the proposed rules regarding the ``unduly 
burdensome'' condition. Id. at 9.
    Paragraph 31(b)(2)(iv)(H) and (vi): minor editorial revisions. The 
Service says it has no objections to the OCA's suggestion that 
paragraph 31(b)(2)(iv)(H) be revised to include the phrase ``into the 
record'' after ``entered.'' Similarly, it has no objection to revising 
paragraph 31(b)(2)(vi) to include language stating that inclusion of a 
preface is ``encouraged but optional.''
    Section 31(b)(2)(vii): suggestion regarding notice of library 
reference filed in electronic format. The Service notes that the root 
of OCA's concern appears to be that someone who gains access to a 
library reference on the Commission's web page might not be able to 
benefit fully from this access if he or she does not have similar 
access to the information provided with the notice. Id. at 9. It notes, 
however, that under current practice, the Commission

[[Page 67489]]

is scanning pleadings and posting them on the web already. Therefore, 
the Service says that whether or not an electronic version of the 
notice is submitted, the parties will have access to that information 
on the web as long as the notice is scanned. Consequently, it considers 
the rule as proposed entirely adequate. Id.

II. Commission Response

    Proposed alternative approaches to paragraph 31(b)(1) (general 
introduction to provisions on documentary material). Both the Postal 
Service and the OCA suggest changes to this provision. The Service's 
proposed alternative adds a clause stating that ``whenever'' citations 
are made in testimony and exhibits, they must do so with sufficient 
specificity. According to the Service, the purpose of this wording 
change is to prevent misinterpretation of the Commission's proposal, 
especially of the type that would lead to litigation over whether every 
number originating in a library reference and used in testimony must be 
cross-referenced. Postal Service Comments at 4. The Service says it 
does not understand this to be the intent of the Commission's proposal, 
but is concerned that this could be its effect. The OCA, on the other 
hand, expands the reach of the proposal by including, in addition to 
library references, other testimony, exhibits, or supporting 
workpapers. OCA Comments at 3.
    The Commission finds that the OCA's suggestion carries with it the 
potential for imposing far greater burden on the filing party than this 
rulemaking has contemplated. Therefore, it believes it is preferable to 
retain the language proposed in order no. 1263. In doing so, the 
Commission notes that the intent of the provision is not to impose on 
testimony unnecessarily severe or exhaustive citation requirements. In 
terms of guidance, the Commission notes that witness Tolley's recent 
presentations (which the Service refers to its comments) included a 
technical appendix containing extensive citations to source materials. 
These presentations provide an example of testimony that would comply 
with the new rule. In addition, the Commission expects participants to 
apply a common-sense standard.
    Special requests. The issue of service of library references is 
problematic. In part, this is because it appears that the Service has 
complied with the requirement that material filed in response to a 
request for production of documents under rule 26 be made available 
``for inspection and copying'' by filing a library reference. While 
this may pose some inconvenience for those located outside the greater 
Washington, DC area, the Service correctly notes that rule 26 does not 
necessarily require actual service.
    The Commission will not impose an across-the-board obligation to 
provide copies of all library references the Postal Service may file in 
a case. As stated in order No. 1263, it believes that the growing 
ability to produce and distribute most material in an electronic format 
will greatly reduce the need for participants to make special requests 
for hard-copy service. It also believes that exposing the filer of a 
library reference to the potential for repeated requests for service 
diminishes the extent to which the practice of filing a library 
reference is a convenience.
    The Commission believes that the compromise Carlson has suggested 
has merit. Under this approach, a participant filing a discovery 
request (under rule 25 or 26) that leads to the lodging of a library 
reference with the Commission may make a special (informal) request for 
service, while others would be required to file a motion. The 
Commission expects the filer to honor these informal, oral special 
requests whenever reasonably feasible. In the most recent proposal, no 
specific deadline was set for service. Upon reconsideration, the 
Commission believes that the same three-day period specified in 
paragraph 31(b)(2)(ii)(A) should apply. As the terms of that provision 
also allow the filer to provide an explanation of why the material 
cannot be provided within the specified time period, much of the 
flexibility of the previously-proposed standard allowing service within 
a reasonable time is preserved. The final rule reads as follows:

    (ix) Special requests and motions seeking service. In situations 
other than that covered in (ii)(A), special requests for service of 
material contained in a library reference may be made by the 
participant that filed the interrogatory or inquiry that generated a 
response in the form of a library reference. Service shall be made 
within three days of a request, or the filer shall provide, within 
the same period, an explanation of why the material cannot be 
provided, and undertake reasonable efforts to promptly provide the 
material. Others seeking service of the material contained in a 
library reference shall file a detailed motion setting forth the 
reasons why service is necessary or appropriate.

    Popkin's request for clarification of the differences between 
paragraphs 31(b)(2)(iv) and (vi). Popkin requests clarification of the 
differences between the ``mandatory'' provisions in paragraph 
31(b)(2)(iv) and the ``optional'' provisions in paragraph 31(b)(2)(vi). 
In the Commission's view, the first provision identifies the 
disclosures that must be included in the notice the party serves (on 
all participants) informing them that a library reference has been 
filed. In contrast, the other provision addresses what must be included 
in the library reference itself. The Commission continues to believe 
these distinctions are appropriate, and retains them in the final rule. 
However, in keeping with the OCA's suggestion (and the Service's lack 
of objection thereto), the wording of paragraph 31(b)(2)(vi) is revised 
to make clear that inclusion of a preface or summary is also 
encouraged.
    Popkin's request for a change in paragraph 31(b)(2)(ii)(D). Popkin 
contends that the effect of this provision, which refers to material 
filed in compliance with a discovery request for production of 
documents or things, is not clear. He suggests that it be divided into 
two parts: one for items that are directly associated with the 
interrogatory question; the other for supporting data or information. 
He further proposes that the first category be automatically furnished 
to the proponent of the interrogatory, and the second treated like any 
other reference. Id. at 2. Popkin also says that the three-day service 
requirement contained in paragraph 31(b)(2)(ii)(A) should apply.
    The inclusion of this provision in the rule recognizes an informal 
practice that appears to have grown up around longstanding rule 26 
(requests for production of documents or things for purposes of 
discovery). In many instances, it seems the Service has complied with 
requests that could be deemed to fall within rule 26 (even if not 
specifically identified as such) by filing a library reference. Rather 
than discourage these efforts, the Commission has attempted to draft 
the new provision on special requests in a way that preserves the 
spirit of cooperation underlying the ongoing practice. Given the 
alteration in the motion requirement that is being made, the Commission 
believes that Popkin's concerns about availability are addressed.
    Suggestions regarding interpretation of the ``unduly burdensome'' 
condition in connection with paragraph 31(b)(2)(iii). This paragraph 
addresses ``other circumstances'' when it is appropriate to file 
material as a library reference, but for the inability to satisfy the 
terms of paragraph 31(b)(2)(A)-(D). In response to a request for 
clarification, the Commission notes that these terms, by the language 
of paragraph 31(b)(2)(ii), are factors to be considered in addition to 
physical characteristics that are

[[Page 67490]]

reasonably likely to render compliance with service requirements unduly 
burdensome.
    The OCA suggests that the rule could be improved by adding the 
phrase ``unduly burdensome'' to this paragraph, while the Service says 
the existing approach provides a necessary degree of flexibility. The 
Commission's intent is that the ``unduly burdensome'' condition in 
paragraph 31(b)(2)(ii) applies to this section; that is, a filer can 
qualify the material for acceptance as a library reference by virtue of 
its physical characteristics, even if conditions in (A) through (D) are 
not met. Given the potential for confusion, the Commission is revising 
the introductory sentence of this paragraph to read as follows: ``If a 
participant considers it appropriate to file material as a library 
reference because physical characteristics render service unduly 
burdensome, but cannot satisfy the terms * * *.''
    Minor editorial revisions. Several other suggestions have been made 
for minor editorial revisions. The Commission is adopting the OCA's 
suggestions for changes in paragraph 31(b)(2) (iv)(H) and (vii) without 
change. It is also adopting the Service's suggestion, with one small 
adjustment. This latter entails adding the broader term ``format'' to 
the examples of physical circumstances, instead of ``electronic 
format.''
    Ordering paragraphs. The first ordering paragraph states that the 
Commission adopts the provisions set out in the attachment as a final 
rule amending 39 CFR 3001.31(b). The second paragraph states that the 
rule is effective upon publication in the Federal Register. The third 
paragraph directs the Secretary to cause this order to be published in 
the Federal Register.

    Dated: November 24, 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 amends 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, 3663.

    2. Amend Sec. 3001.31 in Subpart A 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.
    (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 filed 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, bulk, or 
format, 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 because its 
physical characteristics render service unduly burdensome, but cannot 
satisfy the terms set out in paragraphs (b)(2)(ii)(A) through (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;

[[Page 67491]]

    (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, and 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 another library reference and, if it is, clearly identify the 
predecessor material.
    (H) To the extent feasible, identify portions expected to be 
entered into the record 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) through (H) of this section is encouraged but 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 and motions seeking service. In situations 
other than that covered in paragraph (b)(2)(ii)(A) of this section, 
special requests for service of material contained in a library 
reference may be made by the participant that filed the interrogatory 
or inquiry that generated a response in the form of a library 
reference. Service shall be made within a reasonable time. Others 
seeking service of the material contained in a library reference shall 
file 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 do 
not confer evidentiary status. The evidentiary status of the material 
is governed by this section.

[FR Doc. 99-31126 Filed 12-1-99; 8:45 am]
BILLING CODE 7715-01-P