[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Proposed Rules]
[Pages 72622-72632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33556]


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POSTAL RATE COMMISSION

39 CFR Part 3001

[Docket No. RM98-3; Order No. 1274]


Revisions to Rules of Practice; Further Proposed Changes

AGENCY: Postal Rate Commission.

ACTION: Supplementary notice of further proposed rule.

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SUMMARY: This document addresses comments on a previous proposal to 
revise the general rules of practice. It proposes adopting the special 
rules of practice on a permanent basis and makes several other 
improvements. The Commission invites comments on this set of proposals.

DATES: Submit comments no later than January 21, 2000.

ADDRESSES: Send correspondence concerning this proposal to 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., Suite 300, Washington, DC 
20268-0001, 202-789-6820.

SUPPLEMENTARY INFORMATION:

Regulatory History

    In order no. 1218 the Commission solicited suggestions from 
interested parties on ways to improve the efficiency and effectiveness 
of proceedings conducted pursuant to 39 U.S.C. 3624. See 63 FR 46732 
(September 2, 1998). The order encouraged comments on any topic covered 
in 39 CFR 3001.1-92, with the exception of library references and 
confidential information, which were to be addressed in separate 
rulemakings. While all the rules of practice and procedure were open 
for comment, several areas of particular interest were identified, 
based on the Commission's assessment of the rules in operation during 
the most recent omnibus rate case, docket no. R97-1.
    Specifically, the Commission found that incorporation of all (or 
most) of the special rules into the rules of practice and procedure 
merited serious consideration. Traditionally, special rules of practice 
have been issued for application during omnibus rate cases, but more 
recently similar rules have been utilized in classification and 
complaint dockets as well. The Commission further indicated that an 
assessment of ways to reduce costs inherent in the service of documents 
be undertaken. Thus, consideration of the extent to which electronic 
filing requirements or options can be added is warranted. Finally, the 
Commission noted that the use of surveys and the Postal Service's 
filing of pro forma financial data, two recently adopted revisions, 
worked reasonably well during the last omnibus rate case.
    Five sets of comments suggesting improvements were received. The 
comments are available for public inspection in the Commission's docket 
section, and can be accessed electronically at www.prc.gov. Generally, 
the comments do not oppose the integration of the special rules of 
practice into the current rules of practice and procedure, suggest a 
mixed

[[Page 72623]]

response to the possibility of electronic filing requirements, and 
raise the issue of whether certain technical and procedural rules have 
outlived their usefulness. To this end, some commenters, particularly 
the Postal Service, offer detailed suggestions regarding streamlining 
the Commission rules.

Introduction

    This proposed rulemaking focuses on the aforementioned areas of 
interest, while also addressing minor updates to reflect internal 
Commission changes since the rules were first promulgated. As noted 
earlier, recent dockets (docket Nos. RM99-2 and RM98-2) modify 
Commission rules concerning confidential information (rules 42 and 42a) 
and library references (rule 31(b)), respectively. See order No. 1267 
(issued October 8, 1999) and order No. 1273 (issued November 24, 1999). 
Accordingly, those rulemakings take precedence over revisions otherwise 
merited by integration of the special rules. The changes now proposed, 
in sum, have been tested in numerous Commission proceedings and have 
proven to be effective and efficient.
    The Commission has narrowed the scope of order No. 1218 by limiting 
its consideration in this proposed rulemaking to Subpart A-Rules of 
General Applicability (rules 1-43). Commission rules of practice and 
procedure found in Subparts B through F (rules 51-92), which include 
regulations pertaining to the initiation of dockets, such as requests 
for changes in rates, fees or the mail classification schedule, will be 
addressed in a later rulemaking. Consideration of revisions to rules 
51-92 therefore is deferred until that time.

    Note: As such, commenters' remarks on the following issues will 
be deferred: (1) The elimination of the required production of 
``functionalized accrued costs,'' (rule 54); (2) the elimination of 
documentation requirements leading to the production of 
``unnecessary, little-used library references,'' (rule 54(h)(5)); 
(3) the elimination of anachronistic technical references and 
requirements (as in rule 54(h)(5)(v)(b)); (4) the adjustment of 
rules pertaining to limited, expedited proceedings (rules 54 and 64) 
to minimize the need for the filing of routine waiver requests; (5) 
the amendment of pre-filing requirements in omnibus rate cases to 
allow for earlier and improved access to information; and (6) the 
amendment of rules 52 and 54 regarding Commission acceptance of 
Postal Service formal requests for changes in rates or fees.

    In the interest of simplicity, this order first addresses 
integration of the special rules, with discussion of electronic filing 
and minor updates presented thereafter. In the last section of the 
rulemaking, the Commission evaluates miscellaneous commenter 
suggestions.

Special Rules

    The special rules, originally designed for use in omnibus rate 
proceedings (such as docket no. R97-1), recently have been employed in 
several classification and complaint dockets. As the special rules are 
now more universally applied in Commission proceedings, the Commission 
proposes that these rules be incorporated in its rules of practice and 
procedure.
    The special rules of practice encompass five discrete areas: 
evidence, discovery, service, cross-examination and ``general,'' which 
in part addresses the use of library references (the subject of a 
separate rulemaking). The rules generally provide both detailed 
procedures designed for complex omnibus rate cases with numerous 
participants, and pleading deadlines, which are more accelerated than 
those in the existing rules of practice. The Commission believes that 
incorporation of the shortened time periods into the current rules of 
practice and procedure is a reasonable action, given that parties 
repeatedly have demonstrated an ability to meet the deadlines set in 
omnibus rate cases, the Commission's largest and most complex 
proceedings. The text of the proposed revisions is presented in the 
attachment to this notice and order, and the Commission now describes 
the changes it proposes.

Evidence

    The special rules related to evidence address the evidentiary case 
of participants, exhibits, motions to strike, and designation of 
evidence from other Commission dockets. The Commission proposes to 
incorporate these rules primarily in current rules 21 (motions), 30 
(hearings) and 31 (evidence). To the extent that the special rules 
apply to library references, order No. 1273 takes precedence.

Discovery

    The special rules related to discovery provide for more abbreviated 
pleading periods than the existing rules. Thus, the response time for 
interrogatories has been shortened from 20 days to 14 days, answers to 
other discovery requests likewise are due in 14 days (rather than 20 
days), and compelled responses to discovery requests are due within 7 
(rather than 10) days of the date of the order compelling an answer. 
Further, the rules of practice will now contain provisions for follow-
up interrogatories and motions to compel discovery. Finally, the 
Commission proposes changing the time period for service of objections 
to discovery requests from 10 to 7 days, which, while not currently a 
special rule, appropriately reflects the shortened time frame for 
discovery.
    The Commission has revised and renumbered the current rules 
pertaining to discovery (rules 25 through 28) to include introduction 
of the Commission's general policy on discovery in rule 25. This rule 
includes the provisions of special rule 2-E, which addresses discovery 
to obtain information available only from the Postal Service. Special 
rule 2-E states that while discovery against a participant is generally 
scheduled to end prior to the receipt into evidence of that 
participant's direct case, an exception is made when participants 
require information available only from the Postal Service. In this 
instance, discovery requests are allowed up to 20 days prior to the 
filing date for final rebuttal testimony. One commenter suggests that 
the Commission clarify this rule to reflect more recent rulings 
allegedly limiting its scope. The Commission finds such a revision 
unnecessary at this time, and will continue to apply the special rule 
as essentially written (and now incorporated in rule 25) on a case-by-
case basis.
    Service. The special rules regulating service, as distinct from the 
issue of electronic filing, raised only one concern from commenters. 
One commenter notes that special rule 3-C, which provides exceptions to 
general service requirements for certain documents, was established as 
a convenience in response to large service lists in omnibus rate cases. 
This commenter suggests that the rule therefore be reserved as a 
special rule and employed only in proceedings with a significant number 
of participants. The Commission does not view this rule as requiring 
such special treatment, and therefore proposes to incorporate it in the 
standard rules largely as written. The Commission proposes to add this 
and other special rules on service to current rules 10 (form and number 
of copies of documents) and 12 (service of documents), with slight 
modification made to the text to accommodate current Commission 
computer technology.

Cross-examination

    The Commission proposes that special rules 4-A and 4-B, 
respectively governing written and oral cross-examination, be added to 
rule 30(e), presentation by parties.

[[Page 72624]]

General

    The remaining general special rules address the rules on argument 
by parties in a proceeding, new affirmative matter, legal memoranda and 
library references, as well as the scope of cross-examination. As 
discussed earlier, library references are the subject of a separate 
rulemaking. The Commission proposes that the other general special 
rules be incorporated in rule 30(e) of the present Commission rules of 
practice and procedure.

Electronic Filing

    The Commission is very cognizant of current communications and 
information technology and has made several efforts to incorporate that 
technology into its internal operations. A Postal Rate Commission 
website which provides timely notice of docket filings in ongoing 
cases, among other functions, has been operational since 1997 and is 
marked by continual improvements. In docket No. R97-1, the Commission 
permitted participants to file computer diskettes for some filings in 
conjunction with a significantly reduced number of required hard copies 
of the particular filing. In docket No. MC98-1, the Mailing Online 
Service classification case, the Commission proposed an electronic 
service experiment for all filed documents. The optional electronic 
service experiment was presented as a cost savings option for 
participants, with simplified, reduced mailing requirements for hard 
copies of documents. Interested intervenors were given the option to 
participate either fully or in a more restricted capacity. A number of 
intervenors successfully participated in the electronic service 
experiment.
    Commenters in this docket commend the Commission's efforts to take 
advantage of today's technology, particularly citing the convenience of 
the PRC website. However, while finding merit in the reduced filing 
costs and timely availability of filings associated with electronic 
service in a limited Commission proceeding, all commenters note that 
hardcopy service retains significant advantages, particularly in larger 
omnibus proceedings. In a larger proceeding, the process of downloading 
and printing lengthy filed documents from numerous parties may prove to 
be an onerous and costly task, with significant, expensive professional 
time devoted to review of the internet filings in order to determine 
which documents merit printing. One commenter warns of the potential 
computer ``traffic jams'' on those days when briefs or testimony are 
filed in future cases, as numerous intervenors attempt to access and 
download filed documents at the same time. Further, it is implied that 
a participant's case may be compromised if he is unable to expend the 
required time and resources. More than one commenter highlighted that 
not all proceeding participants have joined the ``information 
superhighway,'' thus automatically disadvantaging those parties.
    In general, commenters advise a cautious approach toward electronic 
filing. In fact, one commenter maintains that the Commission should not 
move beyond the stage of experimental voluntary electronic filing 
without first conducting a cost/benefit analysis of the process. Thus, 
while there is some support for experimental voluntary electronic 
filing, commenters generally advocate that the Commission retains the 
requirement of hard-copy service by participants, at least upon other 
parties, while continuing to provide PRC website information on 
filings.
    An alternate proposal for electronic service, which allegedly 
overcomes some of the aforementioned considerations, is offered by one 
commenter. Under the alternate proposal, participants in a particular 
case could choose to receive all Office of the Consumer Advocate (OCA) 
and Commission documents electronically via the Commission's website, 
with the Commission also serving all non-participating intervenors a 
hard copy of each participating intervenor's filing. Participants would 
be required to file an original and three copies of a filing, plus an 
electronic version of the filing. Participants further would be 
responsible for serving the opposing party with one hard copy (or, in 
the case of the Postal Service, six hard copies). The Commission 
otherwise would photocopy and mail the documents.
    While trying to keep pace with technology and realize its obvious 
benefits to Commission proceedings, the Commission still appreciates 
the disadvantages currently associated with exclusive electronic 
service, as highlighted by the commenters. In particular, the 
Commission is cognizant of the potential difficulties associated with 
the review and printing of numerous, lengthy filings that are typical 
of an omnibus rate proceeding, and understands that some proceedings of 
a limited nature may be more appropriate for application of electronic 
service at this stage. Accordingly, the Commission proposes reserving 
the option to implement electronic service on a case-by-case basis, by 
amending part (e) of rule 12 (service of documents) to read ``[s]ervice 
via electronic filing may be available under circumstances prescribed 
by the Commission or the presiding officer.''

Miscellaneous Updates of Commission Rules

    The Commission proposes that several current rules be updated 
primarily to reflect certain institutional changes. Section 4 (or rule 
4) amends the manner in which the rules of practice may be cited. Rule 
5 revises the definition of ``presiding officer'' and also now includes 
a definition of the OCA. Rule 7, which discusses ex parte 
communications, has eliminated the reference to an administrative law 
judge, as the Commission no longer utilizes administrative law judges, 
and has been clarified as applicable to all participants. Rule 9, 
filing of documents, is revised to include notification of the 
presiding officer by the Commission's Secretary in the event of an 
unacceptable filing, and to eliminate such notification to the parties, 
except for the sender of the unacceptable document. Rule 12 on the 
service of documents has been altered to provide for electronic filing 
under certain circumstances. Rule 18, which describes the nature of 
proceedings, now indicates that the Commission may, rather than shall, 
hold a public hearing if one is requested by a party. Rule 19, 
regarding notice of a prehearing conference or hearing, eliminates a 
reference to Commission designation of a presiding officer by Federal 
Register notice, as designation is a function of the Chairman. That 
rule also now reflects Commission practice of providing notice of the 
reconvening of a hearing to all participants in a proceeding by issuing 
a ruling served on all participants (if necessary), rather than through 
publication of such notice in the Federal Register. Rule 43, which 
addresses public attendance at Commission meetings, has substituted the 
office of the Secretary for all references to the Office of Public 
Information, which no longer exists.

Service on the OCA

    Several rules relating to discovery have been revised to include 
mandatory service of documents on the OCA. Affected rules include rules 
26(a), 26(c), 27(a), 27(c), 28(a) and 28(c). The aforementioned rules 
also reflect renumbering to accommodate actions taken in this 
rulemaking. Additionally, the distinction between parties and 
participants has been applied in rules 7, 12, 25, 26, 27, 28, and 30.

[[Page 72625]]

Minor Changes

    Some rule changes simply reflect altered numbering within the rule, 
or a change in wording to effect a more specific reference. Thus, rule 
17--addressing notice of proceeding--includes new renumbering of some 
sections. Rules 18 (nature of proceedings), 19 (notice of prehearing 
conference or hearing), 20 (formal intervention) and 20a (limited 
participation by persons not parties) now specifically cite to 
proceeding notice pursuant to section (a) of rule 17, rather than 
generally referring to rule 17. Likewise, rules 27(b) and (e) (answers 
and orders regarding requests for production of documents or things for 
purpose of discovery) and rules 28(b) and (e) (answers and orders 
regarding requests for admissions for purpose of discovery) provide for 
service of such documents and answers pursuant to Sec. 3001.12(b).
    Finally, the Commission proposes substantive changes to rule 
31(k)(3)(i), which was the subject of one commenter's remarks and 
therefore will be discussed in detail below.

Other Suggestions by Commenters

    Several commenters have offered detailed suggestions regarding 
substantive revisions of the rules of practice and procedure, which 
have been carefully considered by the Commission. These suggestions, 
accompanied by Commission responses, include:

I. Elimination of Required Production of Hardcopy Listings of Data 
Files, Other Computer Information

    One commenter suggests that the Commission amend rule 31(k)(3)(i), 
which currently appears to require that a hardcopy ``listing of the 
input and output data and source codes'' be provided as a foundation 
for each computer analysis being offered as evidence. The commenter 
asks that the Commission change the foundational requirements of the 
rule to require production only of electronic versions of data or 
source code, and also to eliminate the provisions which provide for 
production of the items upon request. Alternatively, it is suggested 
that the Commission not specify the medium of presentation for such 
information, allowing the provision only of electronic media. In 
support of these suggested amendments, the commenter argues that: (1) 
Any party who wishes to ``investigate, replicate or validate'' a 
computer analysis will likely prefer to load the source code and input 
the data on its own computers, a task better-suited for an electronic 
version of this information, particularly if the data bases involved 
are extensive; and (2) a requirement that data and source code be 
provided in hardcopy form is redundant, as almost any party can readily 
produce a hardcopy product from an electronic version of the document 
in question.
    The Commission agrees that the nature of the documents filed under 
rule 31(k)(3)(i), in conjunction with current technology and 
established practice of recent years, indicate that electronic filing 
is the appropriate format for the mandatory submission of the specified 
information. However, paper copies of the data files still serve a 
useful purpose, particularly to those parties who may not have access 
to the ``information superhighway,'' and therefore could be 
disadvantaged in a Commission proceeding were the request for provision 
of hardcopy documents unavailable. With this in mind, the Commission 
proposes that rule 31(k)(3)(i) be modified to require a machine 
readable copy of the input and output data, source codes and program 
files submitted as the foundation for computer studies or analyses 
which are being offered in evidence or relied upon as support for other 
evidence. Hard copies of all data bases and source codes will be deemed 
presumptively necessary and furnished upon request, unless the 
presumption is overcome by an affirmative showing. The Commission 
believes that this revision will facilitate the process of data 
production and analysis, as well as fully protect the due process 
rights of participants by providing alternative means of access to such 
information, without necessarily imposing onerous burdens of production 
upon the provider.

II. Streamlining of Rules Pertaining to Intervention and Participation

    One commenter proposes that the Commission streamline the rules 
concerning party intervention and participation in Commission 
proceedings by eliminating rules 20, 20a and 20b. These rules identify 
three classes of party intervention and participation, with varying 
rights and obligations. Elimination of the rules would allow all 
interested parties who intervene to participate on an equal footing. It 
is also suggested that the Commission could further streamline its 
general rate and classification proceedings by maintaining a list of 
parties interested in automatic intervention, with implementation of 
the list upon the filing of such a case. In that manner, a more 
efficient service of documents upon ``the core of parties who intervene 
in Commission proceedings as a matter of course'' could be effectuated.
    According to rules 20, 20a and 20b, intervention and participation 
by an interested party in a Commission proceeding may range from full 
intervention in all aspects of a case to a limited filing on the 
party's behalf. The rules recognize that intervenors have varying 
degrees of interest in issues presented in a particular proceeding, as 
well as different amounts of resources to expend. While simplifying the 
rules to provide that all interested parties participate ``on a equal 
footing'' may appear to promote fairness, in fact, the opposite may 
result. Full participation imposes certain obligations on the part of 
an intervenor, which may prove to be burdensome and prohibitive, 
particularly to those intervenors with limited time and resources. For 
these reasons, the Commission declines to revise rules 20, 20a and 20b, 
as suggested.
    Current Commission practice regarding party intervention requires 
only that a notice of intervention in a proceeding be submitted by an 
interested party. Late intervenors must file a motion to be allowed 
participation in a particular proceeding. This process allows the 
Commission to control its docket and, in the case of late intervention, 
appropriately assess the merits of intervention at that point of time. 
The process also provides notice of parties active in a proceeding (and 
their respective degree of activity) to other participants. The 
Commission finds no compelling reason to alter these rules to allow for 
the automatic intervention of interested parties in Commission 
proceedings (particularly omnibus rate cases) beyond the provisions to 
this effect, which currently apply to a small number of expedited 
proceedings (including market tests and provisional service changes).

III. Limiting of Certain Aspects of Discovery

    One commenter proposes that the Commission consider imposing 
numerical limitations on discovery requests in rate and classification 
proceedings in order to more effectively focus discovery efforts, 
reduce the parties' burden of participation, encourage the use of 
informal avenues of discovery (such as informal technical conferences) 
and ultimately improve the efficiency of Commission proceedings. 
According to the commenter, the due process rights of parties will not 
be compromised by such an imposition. In

[[Page 72626]]

support of this proposition, the commenter cites rules 26, 29-37 of the 
federal rules of civil procedure, which place a number of limitations 
on the discovery process in federal civil proceedings, including the 
number of interrogatories (25) a party may serve on any other party.
    The Commission must reject the commenter's efforts to limit the 
written discovery process, particularly in omnibus rate proceedings. 
The Postal Service functions as a national monopoly, with the private 
express statute applicable to the vast majority of mail. Mailers thus 
are required by law to pay whatever rates are set, and clearly possess 
a vested interest in the process of determining these rates. Written 
discovery expedites the process of determining and setting fair rates 
and fees, allows for a more complete record, and also reduces (but does 
not eliminate) the need for oral cross-examination.
    Further, the potential for ``prolific'' discovery efforts 
complained of by the commenter must be weighed against the protection 
of parties' due process rights and the increasingly complex, technical 
nature of Commission proceedings (which may be distinguished from 
typical federal court cases). Thus, while the Commission does 
understand the rationale for the commenter's suggestion, it is 
persuaded that the aforementioned considerations advise against 
instituting any additional limitations on the discovery process.

IV. Elimination of the Assumption That Witnesses Will Be Subjected to 
Oral Cross-examination.

    One commenter suggests that the Commission alter the rules of 
Practice and Procedure to hold that each party requesting oral cross-
examination be required to demonstrate why written submission is not 
sufficient to achieve that party's objective. The commenter notes that 
current practice relies heavily on written submissions, and that 
limitations on oral cross-examination is consistent with section 556 of 
the Administrative Procedure Act, which provides solely for ``such 
cross-examination as may be required for a full and true disclosure of 
the facts.'' 5 U.S.C. 556(d). It is argued that parties' due process 
rights will still be preserved, while imposing a more streamlined, 
disciplined approach to discovery. It is conceded that such a change in 
the Commission rules may lead to increased motion practice.
    The Commission views the opportunity for participants to conduct 
oral cross-examination of witnesses, particularly in such complex 
litigation as is routinely before it, as the hallmark of due process. 
The written submission of testimony and subsequent interrogatory 
practice, while certainly serving a function, in no way supercede the 
purpose of a live hearing on the issues. One need only consider the 
problems which arose in docket no. R97-1 regarding certain Postal 
Service library references, and the parties' expressed interest in 
cross-examination of the sponsoring (but unnamed) witnesses. It is 
acknowledged that there have been occasions when a witness has been 
summoned for cross-examination, only to do no more than authenticate 
his or her pre-filed testimony and interrogatory responses. However, 
such occurrences are infrequent, as in practice, counsel normally 
ascertain through informal contact with other parties that appearance 
of a particular witness is unnecessary. In any event, this 
inconvenience is a small price to pay to ensure that each participating 
party is accorded a full opportunity to investigate the issues in a 
given case, which may be most effectively achieved through the 
interplay of cross-examination. Moreover, while the Commission does 
grant a certain latitude during cross-examination, it also is mindful 
of the purpose of the exercise and applies constraint accordingly, as 
provided for in Commission rule 30(f). For these reasons, as well as 
the desire to avoid a possible floodgate of motion practice, the 
Commission declines to amend the rules to create a presumption against 
oral cross-examination.

V. Elimination of Oral Argument

    According to one commenter, Commission rules could be further 
streamlined by the elimination or modification of those rules governing 
oral argument (rules 36 and 37), such that oral argument is no longer 
an available option or is scheduled only in truly extraordinary 
circumstances. In docket no. R97-1, there were no requests by parties 
for oral argument before the Commission. The commenter suggests that 
this circumstance appears to indicate an increased acceptance by the 
parties that oral argument is not the most productive use of either the 
participants' or the Commission's time. The Commission traditionally 
has provided the opportunity for oral argument during its proceedings. 
The commenter provides no compelling rationale for the Commission to 
depart from this practice. It is true that no party asked for oral 
argument in docket no. R97-1. However, such requests routinely have 
been made in previous omnibus rate cases. Unlike the commenter, the 
Commission does not view the absence of a request for oral argument in 
the last omnibus rate case as participant acknowledgement that oral 
argument serves a limited purpose. A number of factors, including the 
compressed time schedule subsequently imposed in that docket, may have 
contributed to participants' foregoing of the opportunity. In the 
absence of adequate cause to eliminate or limit the option of oral 
argument, the Commission remains firm in its belief that such requests 
should be decided on a case-by-case basis, with no presumption for or 
against the conduct of oral argument codified in the Commission's 
rules.

VI. Amendment of Rules to Provide for Early Summary Disposition of 
Issues in a Proceeding and for Settlement

    One commenter has suggested that procedures be established to bring 
forth settlements (rather than merely encourage them), and that a 
process for summary disposition of issues early in a case be created. 
The commenter does not specify particular procedures, but does note 
that these recommendations were made to the Commission in an earlier 
rulemaking docket (Docket No. RM95-2) which was created to streamline 
Commission rules.
    As the commenter has noted, the Commission's rules of practice and 
procedure do encourage settlement of issues among the parties. The 
Commission is unclear as to what procedures would more affirmatively 
promote settlement, and the commenter is silent on the matter. Were a 
specific process for settlement proposed, the Commission still would be 
inclined to direct that the process first be applied in a particular 
case to determine its feasibility prior to any promulgation of a rule. 
The same may be said of the commenter's suggestion for early summary 
disposition of particular issues in a proceeding. In this instance, the 
Commission is compelled to exercise extreme caution, as litigation 
practice has demonstrated that issues which have appeared at first 
blush to be ``non-controversial'' often have proved to be otherwise.

II. Amendment of the Filing Requirements Associated with Motions to 
Accept Late-filed Affidavits

    One commenter addresses the late filing of a declaration or 
affidavit of a witness in support of an interrogatory response which 
could not be attached to the response when it was originally filed. 
According to the commenter, these late filings, which consist of a 
motion for leave explaining why the

[[Page 72627]]

declaration/affidavit is untimely, the declaration/affidavit and the 
certificate of service, may be unwarranted in toto, as each witness 
eventually adopts his interrogatory responses under oath as written 
cross-examination. In an effort to reduce costs and paperwork, the 
commenter suggests that the Commission: (a) Encourage parties to file 
all such ``make-up'' motions at one particular time; (b) encourage or 
require the parties to put the certificate of service and the motion on 
the same sheet of paper; or (c) entirely eliminate the affidavit 
requirement through adoption of a general rule to the effect that all 
interrogatory responses are deemed to be under oath.
    Current rule 25 (b) adequately addresses the commenter's concern. 
Note: Under the instant proposal, current rule 25, as revised, would 
become rule 26. First, rule 25(b) permits the use of a declaration of 
accuracy as well as an affidavit. Second, although answers must be 
signed by the person making them, if that person is unavailable at the 
time the answers are filed, a signature page must be filed within ten 
days with the Commission, but need not be served on participants. The 
Commission, therefore, finds it unnecessary to revise its rules as 
suggested by the commenter.
    For the reasons discussed above, the Commission proposes to amend 
Subpart A of its rules of practice and procedure as set forth below.
    Ordering paragraphs. The first ordering paragraph invites 
interested persons to submit comments on the proposed revisions no 
later than January 21, 2000. The second ordering paragraph directs 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.

    Dated: December 21, 1999.
Cyril J. Pittack,
Acting 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--Rules of Practice and Procedure Subpart A--
Rules of General Applicability as follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

Subpart A--Rules of General Applicability

    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. Revise Sec. 3001.4 to read as follows:


Sec. 3001.4  Method of citing rules.

    This part shall be referred to as the ``rules of practice.'' Each 
section, paragraph, or subparagraph shall include only the numbers and 
letters to the right of the decimal point. For example, ``3001.24 
Prehearing conferences'' shall be referred to as ``section 24'' or 
``rule 24.''
    3. Amend Sec. 3001.5 by revising paragraph (e) and adding paragraph 
(q) to read as follows:


Sec. 3001.5  Definitions.

* * * * *
    (e) Presiding officer means the Chairman of the Commission in 
proceedings conducted by the Commission en banc or the Commissioner or 
employee of the Commission designated to preside at hearings or 
conferences.
* * * * *
    (q) Office of the Consumer Advocate or OCA means the officer of the 
Commission designated to represent the interests of the general public 
in a Commission proceeding.
    4. Amend Sec. 3001.7 by revising paragraph (d)(1) to read as 
follows:


Sec. 3001.7  Ex parte communications.

* * * * *
    (d) Violations of ex parte rules. (1) Upon notice of a 
communication knowingly made or knowingly caused to be made by a 
participant in violation of paragraph (b) of this section, the 
Commission or presiding officer at the hearing may, to the extent 
consistent with the interests of justice and the policy of the 
underlying statutes, require the participant to show cause why his/her 
claim or interest in the proceeding should not be dismissed, denied, 
disregarded, or otherwise adversely affected on account of such 
violation.
* * * * *
    5. Amend Sec. 3001.9 by revising paragraph (b) to read as follows:


Sec. 3001.9  Filing of documents.

* * * * *
    (b) Acceptance for filing. Only such documents as conform to the 
requirements of this part and any other applicable rule, regulation or 
order of the Commission shall be accepted for filing. Unacceptable 
filings will be rejected by the Secretary and will not be included in 
the file in the proceeding involved. The Secretary shall notify the 
sender of any unacceptable document and the presiding officer in the 
proceeding in which such document was tendered that such document was 
rejected. Acceptance for filing shall not waive any failure to comply 
with the rules, and such failure may be cause for subsequently striking 
all or any part of any document.
    6. Amend Sec. 3001.10 as follows:
    a. Redesignate paragraph (c) as (d),
    b. Revise redesignated paragraph (d); and
    c. Add new paragraph (c) to read as follows:


Sec. 3001.10  Form and number of copies of documents.

* * * * *
    (c) Computer diskette. Participants capable of submitting documents 
stored on computer diskettes may use an alternative procedure for 
filing documents with the Commission. Provided that the stored document 
is a file generated in either Acrobat (pdf), Word, or WordPerfect, in 
lieu of the other requirements of section 10 of the rules, a 
participant may submit a diskette containing the text of each filing 
simultaneously with the filing of one printed original and three hard 
copies. Attachments will be accepted in their native format (i.e., 
Excel, Lotus, etc.). Documents must be submitted in Arial 12 point 
Font, or such program, format, or font as the presiding officer may 
designate to assist with optical character recognition (OCR).
    (d) Number of copies. Except for correspondence, computer diskette 
filing as provided for in paragraph (c) of this section, or as 
otherwise permitted by the Commission, the Secretary or the presiding 
officer in any proceeding, all persons shall file with the Secretary an 
original and 24 fully conformed copies of each document required or 
permitted to be filed under this part.
    7. Amend Sec. 3001.12 as follows:
    a. Revise paragraph (b),
    b. Revise paragraph (d), and
    c. Revise paragraph (e) to read as follows:


Sec. 3001.12  Service of documents.

* * * * *
    (b) Service by the participants. Every document filed by any person 
with the Commission in a proceeding shall be served by the person 
filing such document upon the participants in the proceeding 
individually or by such

[[Page 72628]]

groups as may be directed by the Commission or presiding officer except 
for discovery requests governed by Secs. 3001.26 (a) and (c), 3001.27 
(a) and (c), and 3001.28 (a) and (c), and except for designations for 
written cross-examination, notices of intent to conduct oral cross-
examination and notices of intent to participate in oral argument, 
which need be served only on the Commission, the OCA, the Postal 
Service, and the complementary party (as applicable), as well as on 
participants filing a special request for service. Also, discovery 
requests and pleadings related thereto, such as objections, motions for 
extensions of time, motions to compel or for more complete answers, and 
answers to such pleadings, must be served only on the Commission, the 
OCA, the Postal Service, the complementary party, and on any other 
participant so requesting, as provided in sections 26-28 of the rules 
of practice. Special requests relating to discovery must be served 
individually upon the party conducting discovery and state the witness 
who is the subject of the special request.
* * * * *
    (d) Service list. The Secretary shall maintain a current service 
list in each proceeding which shall include the participants in that 
proceeding and up to two individuals designated for service of 
documents by each participating with the address and, if possible, a 
telephone number and facsimile number designated in the participant's 
initial pleading in such proceeding or a notice of appearance as 
provided in Sec. 3001.6(c). The service list shall show the 
participants actively participating in the hearing and representative 
groups established pursuant to paragraph (c) of this section. Service 
on the Secretary's service list in any proceeding, as directed by the 
Commission or the presiding officer, shall be deemed service in 
compliance with the requirements of this section.
    (e) Method of service. Service may be made by First-Class Mail or 
personal delivery to the address shown for the persons designated on 
the Secretary's service list. Service of any document upon the Postal 
Service shall be made by delivering or mailing six copies thereof to 
the Chief Counsel, Rates and Classification, U.S. Postal Service, 
Washington, DC 20260-1170. Service via electronic filing may be 
available under circumstances prescribed by the Commission or the 
presiding officer.
* * * * *


Sec. 3001.17  [Amended]

    8. Amend Sec. 3001.17 by redesignating paragraphs (a-1), (b) and 
(c) as paragraphs (b), (c) and (d).
    9. Amend Sec. 3001.18 by revising paragraph (a) to read as follows:


Sec. 3001.18  Nature of proceedings.

    (a) Proceedings to be set for hearing. In any case noticed for a 
proceeding to be determined on the record pursuant to Sec. 3001.17(a), 
the Commission may hold a public hearing if a hearing is requested by 
any party to the proceeding or if the Commission in the exercise of its 
discretion determines that a hearing is in the public interest. The 
Commission may give notice of its determination that a hearing shall be 
held in its original notice of the proceeding or in a subsequent notice 
issued pursuant to paragraph (b) of this section and Sec. 3001.19.
* * * * *
    10. Revise Sec. 3001.19 to read as follows:


Sec. 3001.19  Notice of prehearing conference or hearing.

    In any proceeding noticed for a proceeding on the record pursuant 
to Sec. 3001.17(a) the Commission shall give due notice of any 
prehearing conference or hearing by including the time and place of the 
conference or hearing in the notice of proceeding or by subsequently 
issuing a notice of prehearing conference or hearing. Such notice of 
prehearing conference or hearing shall give the title and docket 
designation of the proceeding, a reference to the original notice of 
proceeding and the date of such notice, and the time and place of the 
conference or hearing. Such notice shall be published in the Federal 
Register and served on all participants in the proceeding involved. 
Notice of the time and place where a hearing will be reconvened shall 
be served on all participants in the proceeding unless announcement was 
made thereof by the presiding officer at the adjournment of an earlier 
session of the prehearing conference or hearing.
    11. Amend Sec. 3001.20 by revising paragraph (a) to read as 
follows:


Sec. 3001.20  Formal intervention.

    (a) Who may intervene. A notice of intervention will be entertained 
in those cases that are noticed for a proceeding pursuant to 
Sec. 3001.17(a) from any person claiming an interest of such nature 
that intervention is allowed by the Act, or appropriate to its 
administration.
* * * * *
    12. Amend Sec. 3001.20a by revising the introductory text to read 
as follows:


Sec. 3001.20a  Limited participation by persons not parties.

    Notwithstanding the provisions of Sec. 3001.20, any person may 
appear as a limited participator in any case that is noticed for a 
proceeding pursuant to Sec. 3001.17(a), in accordance with the 
following provisions;
* * * * *
    13. Amend Sec. 3001.21 as follows:
    a. Revise paragraph (b), and
    b. Add new paragraph (c) to read as follows:


Sec. 3001.21  Motions

* * * * *
    (b) Answers. Within seven days after a motion is filed, or such 
other period as the rules provide or the Commission or presiding 
officer may fix, any participant to the proceeding may file and serve 
an answer in support of or in opposition to the motion pursuant to 
Secs. 3001.9 to 3001.12. Such answers shall state with particularity 
the position of the participant with regard to the ruling or relief 
requested in the motion and the grounds and basis and statutory or 
other authority relied upon. Unless the Commission or presiding officer 
otherwise provides, no reply to an answer or any further responsive 
document shall be filed.
    (c) Motions to strike. Motions to strike are requests for 
extraordinary relief and are not substitutes for briefs or rebuttal 
evidence in a proceeding. All motions to strike testimony or exhibit 
materials are to be submitted in writing at least 14 days before the 
scheduled appearance of the witness, unless good cause is shown. 
Responses to motions to strike are due within seven days.


Sec. 3001.28  [Removed]

    14. Remove Sec. 3001.28.


Secs. 3001.25, 3001.26 and 3001.27  [Redesignate as Secs. 3001.26, 
3001.27 and 3001.28, respectively]

    15. Redesignate Secs. 3001.25, 3001.26 and 3001.27 as 
Secs. 3001.26, 3001.27, 3001.28.
    16. Revise redesignated Sec. 3001.26 to read as follows:


Sec. 3001.26  Interrogatories for purpose of discovery.

    (a) Service and contents. In the interest of expedition and limited 
to information which appears reasonably calculated to lead to the 
discovery of admissible evidence, any participant may serve upon any 
other participant in a proceeding written, sequentially numbered 
interrogatories, by witness, requesting nonprivileged information 
relevant to the subject matter in such proceeding, to be answered by 
the participant served, who shall furnish

[[Page 72629]]

such information as is available to the participant. A participant 
through interrogatories may require any other participant to identify 
each person whom the other participant expects to call as a witness at 
the hearing and to state the subject matter on which the witness is 
expected to testify. The participant serving the interrogatories shall 
file a copy thereof with the Secretary pursuant to Sec. 3001.9 and 
shall also serve the Postal Service and the OCA. Special requests for 
service by other participants shall be honored. Follow-up 
interrogatories to clarify or elaborate on the answer to an earlier 
discovery request may be filed after the initial discovery period ends. 
They must be served within seven days of receipt of the answer to the 
previous interrogatory unless extraordinary circumstances are shown.
    (b) Answers. Answers to discovery requests shall be prepared so 
that they can be incorporated as written cross-examination. Each answer 
shall begin on a separate page, identify the individual responding, the 
participant who asked the question, and the number and text of the 
question. Each interrogatory shall be answered separately and fully in 
writing, unless it is objected to, in which event the reasons for 
objection shall be stated in the manner prescribed by paragraph (c) of 
this section. The participant responding to the interrogatories shall 
serve the answers on the participant who served the interrogatories 
within 14 days of the service of the interrogatories or within such 
other period as may be fixed by the presiding officer, but before the 
conclusion of the hearing. Participants may submit responses with a 
declaration of accuracy from the respondent in lieu of a sworn 
affidavit. Answers are to be signed by the person making them. If the 
person responding to the interrogatory is unavailable to sign the 
answer when filed, a signature page must be filed within 10 days 
thereafter with the Commission, but need not be served on participants. 
Copies of the answers to interrogatories shall be filed with the 
Secretary pursuant to Sec. 3001.9 and shall be served upon other 
participants pursuant to Sec. 3001.12(b).
    (c) Objections. In the interest of expedition, the bases for 
objection shall be clearly and fully stated. If objection is made to 
part of an interrogatory, the part shall be specified. A participant 
claiming privilege shall identify the specific evidentiary privilege 
asserted and state the reasons for its applicability. A participant 
claiming undue burden shall state with particularity the effort which 
would be required to answer the interrogatory, providing estimates of 
cost and work hours required, to the extent possible. An interrogatory 
otherwise proper is not necessarily objectionable because an answer 
would involve an opinion or contention that relates to fact or the 
application of law to fact, but the Commission or presiding officer may 
order that such an interrogatory need not be answered until a 
prehearing conference or other later time. Objections are to be signed 
by the attorney making them. Copies of objections to interrogatories 
shall be filed with the Secretary pursuant to Sec. 3001.9 and shall be 
served upon the proponent of the interrogatory, the Postal Service, and 
the OCA within seven days of the request for production. Special 
requests for service by other participants shall be honored.
    (d) Motions to compel responses to discovery. Motions to compel a 
more responsive answer, or an answer to an interrogatory to which an 
objection was interposed, should be filed within 14 days of the answer 
or objection to the discovery request. The text of the discovery 
request, and any answer provided, should be provided as an attachment 
to the motion to compel. Participants who have objected to 
interrogatories which are the subject of a motion to compel shall have 
seven days to answer. Answers will be considered supplements to the 
arguments presented in the initial objection.
    (e) Compelled answers. The Commission, or the presiding officer, 
upon motion of any participant to the proceeding, may compel a more 
responsive answer, or an answer to an interrogatory to which an 
objection has been raised if the objection is found not to be valid, or 
may compel an additional answer if the initial answer is found to be 
inadequate. Such compelled answers shall be served on the participant 
who moved to compel the answer within seven days of the date of the 
order compelling an answer or within such other period as may be fixed 
by the presiding officer, but before the conclusion of the hearing. 
Copies of the answers shall be filed with the Secretary pursuant to 
Sec. 3001.9 and on participants pursuant to Sec. 3001.12(b).
    (f) Supplemental answers. The individual or participant who has 
answered interrogatories is under the duty to seasonably amend a prior 
answer if he/she obtains information upon the basis of which he/she 
knows that the answer was incorrect when made or is no longer true. 
Participants shall serve supplemental answers to update or to correct 
responses whenever necessary, up until the date the answer could have 
been accepted into evidence as written cross-examination. Participants 
filing supplemental answers shall indicate whether the answer merely 
supplements the previous answer to make it current or whether it is a 
complete replacement for the previous answer.
    (g) Orders. The Commission or the presiding officer may order that 
any participant or person shall answer on such terms and conditions as 
are just and may for good cause make any protective order, including an 
order limiting or conditioning interrogatories, as justice requires to 
protect a party or person from undue annoyance, embarrassment, 
oppression, or expense.
    17. Revise redesignated Sec. 3001.27 to read as follows:


Sec. 3001.27  Requests for production of documents or things for 
purpose of discovery.

    (a) Service and contents. In the interest of expedition and limited 
to information which appears reasonably calculated to lead to the 
discovery of admissible evidence, any participant may serve on any 
other participant to the proceeding a request to produce and permit the 
participant making the request, or someone acting in his/her behalf, to 
inspect and copy any designated documents or things which constitute or 
contain matters, not privileged, which are relevant to the subject 
matter involved in the proceeding and which are in the custody or 
control of the participant upon whom the request is served. The request 
shall set forth the items to be inspected either by individual item or 
category, and describe each item and category with reasonable 
particularity, and shall specify a reasonable time, place and manner of 
making inspection. The participant requesting the production of 
documents or things shall file a copy of the request with the Secretary 
pursuant to Sec. 3001.9 and shall serve copies thereof upon the Postal 
Service and the OCA. Special requests for service by other participants 
shall be honored.
    (b) Answers. The participant upon whom the request is served shall 
serve a written answer on the participant who filed the request within 
14 days after the service of the request, or within such other period 
as may be fixed by the presiding officer. The answer shall state, with 
respect to each item or category, that inspection will be permitted as 
requested unless the request is objected to pursuant to paragraph (c) 
of this section. The participant answering the request shall sign and 
file a copy of the

[[Page 72630]]

answer with the Secretary pursuant to Sec. 3001.9 and shall serve 
copies thereof upon other participants pursuant to Sec. 3001.12(b).
    (c) Objections. In the interest of expedition, the bases for 
objection shall be clearly and fully stated. If objection is made to 
part of an item or category, the part shall be specified. A participant 
claiming privilege shall identify the specific evidentiary privilege 
asserted and state the reasons for its applicability. A participant 
claiming undue burden shall state with particularity the effort which 
would be required to answer the request, providing estimates of cost 
and work hours required, to the extent possible. Objections are to be 
signed by the attorney making them. The party objecting to requests 
shall serve the objections on the party requesting production of 
documents or things, upon the Secretary pursuant to Sec. 3001.9 and 
upon the Postal Service and the OCA within 7 days of the request for 
production. Special requests for service by other participants shall be 
honored.
    (d) Motions to compel requests for production of documents or 
things for purposes of discovery. Motions to compel shall be filed 
within 14 days of the answer or objection to the discovery request. The 
text of the discovery request, and any answer provided, should be 
provided as an attachment to the motion to compel. Participants who 
have objected to requests for production of documents or things which 
are the subject of a motion to compel shall have seven days to answer. 
Answers will be considered supplements to the arguments presented in 
the initial objection.
    (e) Orders. Upon motion of any participant to the proceeding to 
compel a response to discovery, as provided in paragraph (d) of this 
section, the Commission or the presiding officer may compel production 
of documents or things to which an objection has been raised if the 
objection is found not to be valid. Such compelled documents or things 
shall be made available to the participants making the motion within 
seven days of the date of the order compelling production or within 
such other period as may be fixed by the presiding officer, but before 
the conclusion of the hearing. Documents or things ordered to be 
produced also shall be filed pursuant to Sec. 3001.9 and served 
pursuant to Sec. 3001.12(b). The Commission or the presiding officer 
may, on such terms and conditions as are just and reasonable, order 
that any participant in a proceeding shall respond to a request for 
inspection, and may make any protective order of the nature provided in 
Sec. 3001.26(g) as may be appropriate.
    18. Revise redesignated Sec. 3001.28 to read as follows:


Sec. 3001.28  Requests for admissions for purpose of discovery.

    (a) Service and content. In the interest of expedition, any 
participant may serve upon any other participant a written request for 
the admission, for purposes of the pending proceeding only, of any 
relevant, unprivileged facts, including the genuineness of any 
documents or exhibits to be presented in the hearing. The participant 
requesting the admission shall file a copy of the request with the 
Secretary pursuant to Sec. 3001.9 and shall serve copies thereof upon 
the Postal Service and the OCA. Special requests for service by other 
participants shall be honored.
    (b) Answers. Each matter of which an admission is requested shall 
be separately set forth and is admitted unless within 14 days after 
service of the request, or within such other period as may be fixed by 
the presiding officer, the participant to whom the request is directed 
serves upon the participant requesting the admission a written answer 
or files an objection pursuant to paragraph (c) of this section. A 
participant who answers a request for admission shall file a copy of 
the answer with the Secretary pursuant to Sec. 3001.9 and shall serve 
copies thereof upon other participants pursuant to Sec. 3001.12(b).
    (c) Objections. In the interest of expedition, the bases for 
objection shall be clearly and fully stated. If objection is made to 
part of an item, the part shall be specified. A participant claiming 
privilege shall identify the specific evidentiary privilege asserted 
and state the reasons for its applicability. A participant claiming 
undue burden shall state with particularity the effort which would be 
required to answer the request, providing estimates of cost and work 
hours required to the extent possible. Objections are to be signed by 
the attorney making them. The participant objecting to requests for 
admissions shall serve the objections on the participant requesting 
admissions, upon the Secretary pursuant to Sec. 3001.9 and upon the 
Postal Service and the OCA, within seven days of the request. Special 
requests for service by other participants shall be honored.
    (d) Motions to compel responses to requests for admissions. Motions 
to compel a more responsive answer, or an answer to a request to which 
an objection was interposed, shall be filed within 14 days of the 
answer or objection to the request for admissions. The text of the 
request for admissions, and any answer provided, should be provided as 
an attachment to the motion to compel. Participants who have objected 
to requests for admissions which are the subject of a motion to compel 
shall have seven days to answer. Answers will be considered supplements 
to the arguments presented in the initial objection.
    (e) Orders. Upon motion of any participant to the proceeding the 
Commission or the presiding officer may compel answers to a request for 
admissions to which an objection has been raised if the objection is 
found not to be valid. Such compelled answers shall be served on the 
participants who moved to compel the answers within seven days of the 
date of the order compelling production or within such other period as 
may be fixed by the Commission or the presiding officer, but before the 
conclusion of the hearing. Copies of the answers shall be filed upon 
the Secretary pursuant to Sec. 3001.9 and served upon other 
participants pursuant to Sec. 3001.12(b). If the Commission or 
presiding officer determines that an answer does not comply with the 
requirements of this rule, it may order either that the matter is 
admitted or that an amended answer be served.
    19. Add Sec. 3001.25 to read as follows:


Sec. 3001.25  Discovery--general policy.

    (a) Rules 26 through 28 allow discovery reasonably calculated to 
lead to admissible evidence during a noticed proceeding. Generally, 
discovery against a participant will be scheduled to end prior to the 
receipt into evidence of that participant's direct case. An exception 
to this procedure shall operate in all proceedings brought under 39 
U.S.C. 3622, 3623, 3661 and 3662 when a participant needs to obtain 
information (such as operating procedures or data) available only from 
the Postal Service. Discovery requests of this nature are permissible 
for the purpose of the development of rebuttal testimony and may be 
made up to 20 days prior to the filing date for final rebuttal 
testimony.
    (b) The discovery procedures set forth in rules 26 through 28 are 
not exclusive. Participants are encouraged to engage in informal 
discovery whenever possible to clarify exhibits and testimony. The 
results of these efforts may be introduced into the record by 
stipulation, by supplementary testimony or exhibit, by presenting 
selected written interrogatories and answers for adoption by a witness 
at the hearing, or by other appropriate means. In the interest of 
reducing motion practice, parties also are expected to use informal

[[Page 72631]]

means to clarify questions and to identify portions of discovery 
requests considered overbroad or burdensome.
    (c) If a participant or an officer or agent of a participant fails 
to obey an order of the Commission or the presiding officer to provide 
or permit discovery pursuant to Secs. 3001.26 to 3001.28, the 
Commission or the presiding officer may make such orders in regard to 
the failure as are just, and among others, may direct that the matters 
regarding which the order was made or any other designated facts shall 
be taken to be established for the purposes of the proceeding in 
accordance with the claim of the participants obtaining the order, or 
prohibit the disobedient participant from introducing designated 
matters in evidence, or strike the evidence, complaint or pleadings or 
parts thereof.
    20. Amend Sec. 3001.30 by revising paragraph (e) to read as 
follows:


Sec. 3001.30  Hearings.

* * * * *
    (e)(1) Presentations by participants. Any participant, including 
the Postal Service, shall have the right in public hearings of 
presentation of evidence, cross-examination (limited to testimony 
adverse to the participant conducting the cross-examination), 
objection, motion, and argument. The case-in-chief of participants 
other than the proponent shall be in writing and shall include the 
participant's direct case and rebuttal, if any, to the initial 
proponent's case-in-chief. It may be accompanied by a trial brief or 
legal memoranda. (Legal memoranda on matters at issue will be welcome 
at any stage of the proceeding.) There will be an opportunity for 
participants to rebut presentations of other participants and for the 
initial proponent to present surrebuttal evidence. New affirmative 
matter (not in reply to another participant's direct case) should not 
be included in rebuttal testimony or exhibits. When objections to the 
admission or exclusion of evidence before the Commission or the 
presiding officer are made, the grounds relied upon shall be stated. 
Formal exceptions to rulings are unnecessary.
    (2) Written cross-examination. Written cross-examination will be 
utilized as a substitute for oral cross-examination whenever possible, 
particularly to introduce factual or statistical evidence. Designations 
of written cross-examination should be served no later than three 
working days before the scheduled appearance of a witness. Designations 
shall identify every item to be offered as evidence, listing the 
participant who initially posed the discovery request, the witness and/
or party to whom the question was addressed (if different from the 
witness answering), the number of the request and, if more than one 
answer is provided, the dates of all answers to be included in the 
record. (For example, ``OCA-T1-17 to USPS witness Jones, answered by 
USPS witness Smith (March 1, 1997) as updated (March 21, 1997)).'' When 
a participant designates written cross-examination, two copies of the 
documents to be included shall simultaneously be submitted to the 
Secretary of the Commission. The Secretary of the Commission shall 
prepare for the record a packet containing all materials designated for 
written cross-examination in a format that facilitates review by the 
witness and counsel. The witness will verify the answers and materials 
in the packet, and they will be entered into the transcript by the 
presiding officer. Counsel may object to written cross-examination at 
that time, and any designated answers or materials ruled objectionable 
will be stricken from the record.
    (3) Oral cross-examination. Oral cross-examination will be 
permitted for clarifying written cross-examination and for testing 
assumptions, conclusions or other opinion evidence. Notices of intent 
to conduct oral cross-examination should be delivered to counsel for 
the witness and served three or more working days before the announced 
appearance of the witness and should include (a) specific references to 
the subject matter to be examined and (b) page references to the 
relevant direct testimony and exhibits. Participants intending to use 
complex numerical hypotheticals, or to question using intricate or 
extensive cross-references, shall provide adequately documented cross-
examination exhibits for the record. Copies of these exhibits should be 
delivered to counsel for the witness at least two calendar days 
(including one working day) before the scheduled appearance of the 
witness.
* * * * *
    21. Amend Sec. 3001.31 as follows:
    a. Revise paragraph (c),
    b. Revise paragraph (d),
    c. Revise paragraph (e),
    d. Revise paragraphs (k)(3)(i)(d) through (f), and
    e. Revise paragraph (k)(3)(i)(i) and paragraph (k)(4) to read as 
follows:


Sec. 3001.31   Evidence.

* * * * *
    (c) Commission's files. Except as otherwise provided in 
Sec. 3001.31(e), in case any matter contained in a report or other 
document on file with the Commission is offered in evidence, such 
report or other document need not be produced or marked for 
identification, but may be offered in evidence by specifying the 
report, document, or other file containing the matter so offered.
* * * * *
    (e) Designation of evidence from other Commission dockets. 
Participants may request that evidence received in other Commission 
proceedings be entered into the record of the current proceeding. These 
requests shall be made by motion, shall explain the purpose of the 
designation, and shall identify material by page and line or paragraph 
number. Absent extraordinary justification, these requests must be made 
at least 28 days before the date for filing the participant's direct 
case. Oppositions to motions for designations and/or requests for 
counter-designations shall be filed within 14 days. Oppositions to 
requests for counter-designations are due within seven days. At the 
time requests for designations and counter-designations are made, the 
moving participant must submit two copies of the identified material to 
the Secretary of the Commission.
    (f) Form of prepared testimony and exhibits. Unless the presiding 
officer otherwise directs, the direct testimony of witnesses shall be 
reduced to writing and offered either as such or as an exhibit. All 
prepared testimony and exhibits of a documentary character shall, so 
far as practicable, conform to the requirements of Sec. 3001.10(a) and 
(b).
* * * * *
    (k) * * *
    (3) * * *
    (i) * * *
    (d) A hard copy of all data bases;
    (e) For all source codes, documentation sufficiently comprehensive 
and detailed to satisfy generally accepted software documentation 
standards appropriate to the type of program and its intended use in 
the proceeding;
    (f) The source code in hardcopy form;
* * * * *
    (i) An expert on the design and operation of the program shall be 
provided at a technical conference to respond to any oral or written 
questions concerning information that is reasonably necessary to enable 
independent replication of the program output. Machine-readable data 
files and program files shall be provided in the form of a compact disk 
or other media or method approved in advance by the Administrative 
Office of the Postal Rate Commission. Any machine-readable data file or 
program file so provided

[[Page 72632]]

must be identified and described in accompanying hardcopy 
documentation. In addition, files in text format must be accompanied by 
hard-copy instructions for printing them. Files in machine code must be 
accompanied by hardcopy instructions for executing them.
* * * * *
    (4) Expedition. The offeror shall expedite responses to requests 
made pursuant to this section. Responses shall be served on the 
requesting party, and notice thereof filed with the Secretary in 
accordance with the provisions of Sec. 3001.12, no later than 14 days 
after a request is made.
    22. Amend Sec. 3001.43 as follows:
    a. Revise paragraphs (e)(4) introductory text and (e)(4)(i),
    b. Revise paragraph (g)(1)(iii), and
    c. Revise paragraph (g)(2)(iii) to read as follows:


Sec. 3001.43  Public attendance at Commission meetings.

* * * * *
    (e) * * *
    (4) The public announcement required by this section may consist of 
the Secretary:
    (i) Publicly posting a copy of the document in the office of the 
Secretary of the Commission at 1333 H Street, NW., Suite 300, 
Washington, DC 20268-0001;
* * * * *
    (g) * * *
    (1)(i) * * *
    (iii) Ten copies of such requests must be received by the office of 
the Secretary no later than three working days after the issuance of 
the Notice of Meeting to which the request pertains. Requests received 
after that time will be returned to the requester with a statement that 
the request was untimely received and that copies of any nonexempt 
portions of the transcript or minutes for the meeting in question will 
ordinarily be available in the office of the Secretary ten working days 
after the meeting.
* * * * *
    (2)(i) * * *
    (iii) Ten copies of such requests should be filed with the office 
of the Secretary as soon as possible after the issuance of the Notice 
of Meeting to which the request pertains. However, a single copy of the 
request will be accepted. Requests to close meetings must be received 
by the office of the Secretary no later than the time scheduled for the 
meeting to which such a request pertains.
* * * * *
[FR Doc. 99-33556 Filed 12-27-99; 8:45 am]
BILLING CODE 7710-FW-P