[Federal Register Volume 65, Number 28 (Thursday, February 10, 2000)]
[Rules and Regulations]
[Pages 6536-6544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3026]


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POSTAL RATE COMMISSION

39 CFR Part 3001

[Docket No. RM98-3; Order No. 1284]


Revisions to Rules of Practice; Final Rule

AGENCY: Postal Rate Commission.

ACTION: Final Rule.

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SUMMARY: This rule adopts final changes in Commission rules of 
practice. These changes adopt certain special rules of practice on a 
permanent basis, make several other procedural improvements, and make 
minor technical corrections and conforming changes. Adoption of these 
rules will aid in effective administration of Commission proceedings.

DATES: February 10, 2000.

ADDRESSES: Send correspondence concerning this document 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 
20268-001, 202-789-6820.

SUPPLEMENTARY INFORMATION:

Regulatory History

    Initial notice of proposed rule: 63 FR 46732 (September 2, 1998).
    Supplementary notice of proposed rule: 64 FR 72622 (Dec. 28, 1999).

Introduction

    The Commission initiated this rulemaking to amend its rules of

[[Page 6537]]

practice and procedure (rules or rules of practice) to improve the 
efficiency and effectiveness of proceedings conducted pursuant to 39 
U.S.C. 3624. See order no. 1218 (63 FR 46732, Sept. 2, 1998). The 
initial 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. In 
particular, comments were solicited regarding the extent to which 
electronic filing requirements or options could be added to the current 
rules, and on the incorporation of all (or most) of the special rules 
of practice into the rules. The special rules were originally designed 
for use in omnibus rate proceedings and recently have been employed in 
several classification and complaint dockets. These rules encompass 
five discrete areas: evidence, discovery, service, cross-examination 
and ``general,'' which in part addresses the use of library references. 
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.
    Five sets of comments suggesting improvements were received. 
Commenters generally supported the integration of the special rules 
into the current rules of practice and procedure, but gave a mixed 
response to the possibility of electronic filing requirements. Some 
commenters suggested that several technical and procedural rules were 
outdated in light of current technology and practice. Certain 
``streamlining'' measures also were proposed.
    In order no. 1274, the Commission proposed specific changes in the 
rules which address the aforementioned areas of interest, as well as 
commenters' remarks. See order no. 1274 (64 FR 72622, Dec. 28, 1999). 
Proposed modifications included the incorporation of most of the 
special rules and minor updates of several current rules to reflect 
internal Commission changes since the rules were first promulgated. The 
proposed rules generally have been tested in numerous Commission 
proceedings, and have proven to be effective and efficient.
    The Commission narrowed the scope of the rulemaking by limiting its 
consideration to Subpart A--Rules of General Applicability (rules 1-
43). Thus, to the extent commenters' remarks encompassed Subparts B 
through F (rules 51-92), which include regulations pertaining to the 
initiation of dockets, they were deferred for consideration to a later 
rulemaking.

Response to Order No. 1274

    Three sets of comments were received in response to order no. 1274. 
The comments are available for public inspection in the Commission's 
docket section, and can be accessed electronically at www.prc.gov. The 
comments essentially support the proposed revisions as reasonable and 
appropriate. However, there are some concerns with regard to the 
revised filing deadlines for various pleadings in Commission 
proceedings. Also, commenters suggest that clarification of some rules 
may be necessary. Finally, several minor technical amendments to the 
Commission's rules are proposed. Each comment will be addressed in 
turn.

Deadlines

Reversion of the Proposed 7-day Deadline to the Current 10-day Deadline 
for Objections to Interrogatories, Requests for Production of Documents 
or Things, and Requests for Admissions (Rules 26(c), 27(c) and 28(c), 
Respectively)

    One commenter maintains that the shortened deadline for objections 
to discovery requests which the Commission proposes in rules 26(c), 
27(c) and 28(c) is too severe and may result in ``increased motions 
practice and other inefficiencies.'' According to the commenter, a 
backlog of responses to interrogatories during extensive discovery in 
an omnibus rate case has been experienced frequently under the current 
10-day deadline. This situation would be exacerbated if the period for 
responses was shortened. Moreover, the proposed 7-day deadline does not 
reflect incorporation of the special rules, but rather is an untested 
proposal.
    The commenter presents a valid argument. The shortened time period 
for objections to discovery was proposed in conjunction with the 
abbreviated pleading periods prescribed by the special rules. However, 
the Commission recognizes that the special rules have been tested and 
proven successful in numerous Commission proceedings, whereas the 
proposal at issue is untried. As such, the Commission will not 
implement this shortened deadline as a final rule, and the current 10-
day deadline will remain in effect. The proposed abbreviated deadline 
may instead be considered for implementation as a special rule during 
the docket no. R2000-1 omnibus rate case or other Commission 
proceeding.

Implementation of a Shortened Time Period for Filing Motions to Compel 
Responses To Discovery in Revised Rules 26(d), 27(d) and 28(d)

    One commenter suggests that the period for participants to file 
motions to compel responses to discovery be shortened from the current 
14 days to 10 days. The commenter argues that the abbreviated time 
period will effectively reduce those outstanding discovery disputes 
pending against a participant both during and after the hearing stage 
of its case-in-chief. Further, the shortened deadline would be 
consistent with the current, somewhat analogous 10-day period for 
response to a motion provided by rule 21(b).
    The Commission declines to modify rules 26(d), 27(d) and 28(d) as 
proposed by the commenter. While the commenter's proposal has merit, 
the shortened time frame has never been tested as a special rule to 
gauge its effectiveness. The Commission therefore would be inclined to 
direct that the proposal first be applied in a particular case to 
determine its feasibility prior to any promulgation of a rule.

Reversion of the Proposed 7-day Deadline for Responses to Motions in 
Rule 21 to the Current 10-day Deadline

    One commenter argues against the adoption of the Commission's 
proposal to shorten the deadline for responses to motions from 10 to 
seven days. According to the commenter, this abbreviated period is not 
a special rule and has not been tested in the course of a major rate 
proceeding. The commenter maintains that the shortened deadline would 
be difficult to meet and would likely result in numerous filings for 
extension of time to reply.
    While not a special rule, the abbreviated time frame nonetheless 
has been imposed in a number of instances where motions have been 
seriously contested, and met with success. Additionally, the special 
rules require responses to motions to compel discovery in seven days, 
and applying this time period to all motions practice will eliminate 
confusion. In light of these considerations, the Commission is not 
persuaded by the commenter's arguments. The Commission's proposal will 
be implemented.

Exhibits

Inclusion of Special Rule 1-B, Exhibits

    One commenter notes that the Commission did not incorporate the 
special rule addressing exhibits in its revised rules. That special 
rule specifies what information must be included in each exhibit, such 
as cross-references

[[Page 6538]]

for multi-part exhibits. The commenter maintains that the special rule 
on exhibits ensures the provision of those citations and references to 
sources necessary for a meaningful review of a particular exhibit, and 
therefore should be a part of the Commission's rules of practice and 
procedure. It is suggested that the special rule be inserted after the 
first sentence of rule 31(b), which pertains to documentary materials.
    The Commission agrees that the special rule on exhibits merits 
inclusion in the rules of practice and procedure. That rule was not 
proposed for incorporation in order no. 1274 based on the Commission's 
assessment that the current rules and the revised rule on library 
references sufficiently addressed the filing of exhibits. See order no. 
1273 (64 FR 67487, Dec. 2, 1999). However, it is possible that the 
special rule on exhibits would provide more comprehensive guidance on 
the matter. As suggested, this special rule is incorporated into 
current rule 31(b), documentary material.

Filing Option Terms

Clarification of Proposed Rule 10 (Form and Number of Copies of 
Documents)

    One commenter questions whether it is the intention of the 
Commission to amend rule 10 to allow pleadings to be filed either in 
hardcopy form or on computer diskettes on a document-by-document basis.
    The proposed amendment to rule 10 does allow participants to select 
the medium of filing on a document-by-document basis. Under the 
proposed rule, a participant is not required to select only one form of 
filing for all of that participant's documents in a given proceeding.

Number of Copies

Reduction in the Number of Hardcopy Documents Requested for Filing 
Under Rule 10(d)

    Under rule 10, any participant filing a hardcopy document must 
present an original and 24 copies of the document. One commenter 
proposes that the number of required hard copies be reduced, given the 
availability of such documents on the Commission's web site and the 
potential time savings associated with a reduced filing requirement.
    The Commission declines to amend rule 10 as requested, but notes 
that an alternative option was proposed by the Commission in order no. 
1274. The proposed rule 10 allows for the electronic filing of 
documents, with a reduced number of hard copies. Thus, participants may 
submit a filing on computer diskette (in compliance with rule 10(c) 
specifications), accompanied by only one printed original and three 
hard copies of that filing.

Internet-Based Service List

Clarification of Rule 12(d) Regarding the Appropriate Service List for 
Compliance With Service Requirements

    One commenter suggests that Commission rule 12(d) (service list) be 
modified to designate the service list on the Commission's web site as 
the current service list for effective service of documents. Such a 
modification would decrease the likelihood of participants utilizing 
out-of-date service lists, as is possible with reliance on a hardcopy 
service list, particularly in complex, multi-party cases.
    The Commission finds this proposal reasonable, and will so amend 
rule 12(d). Each participant is responsible for ensuring that its 
listing on the Commission's web site (www.prc.gov) is accurate, and 
should promptly notify the Commission of any errors.

Postal Service Street Address

Inclusion of Postal Service Street Address in Rule 12(e)

    The Postal Service suggests that rule 12(e), which describes the 
method of service of documents, be amended to include the Postal 
Service's street address. The Commission finds this proposal 
reasonable, and therefore amends rule 12(e) to read, in relevant part, 
``. . . Chief Counsel, Rates and Classification, U.S. Postal Service, 
475 L'Enfant Plaza, SW., Room 6536, Washington, DC 20260-1137.''

Suggested Change to Rule 18

Amendment of Rule 18 Regarding Participants' Right To Request a Hearing

    One commenter notes that the current rule 18 (nature of 
proceedings) essentially allows participants the right to request a 
hearing without specifying the grounds for the request. In this regard, 
rule 18 is inconsistent with other Commission rules which require that 
the underlying purpose for a hearing request be cited. The commenter 
suggests that the phrase ``Except as otherwise provided in these 
rules'' be added to rule 18 to eliminate this inconsistency.
    The Commission is in favor of eliminating any perception of 
inconsistency in its rules of practice and procedure. To this end, rule 
18(a) (proceedings to be set for hearing) will be modified as proposed.

Suggested Change to Rule 21(b)

Modification of Rule 21(b) Regarding Answers to Motions

    A commenter suggests that language be added to the rule to better 
signal the reader that the deadline imposed for responses to motions to 
strike, in the new rule 21(c), varies from the deadlines otherwise 
imposed in rule 21.
    The Commission finds no compelling reason to add such language to 
rule 21(b). In the first instance, the same 7-day day deadline is 
imposed for responses to motions to strike in rule 21(c) and for 
answers to motions in rule 21(b). Furthermore, the potential for 
different deadlines for responses already is highlighted, as the 
revised rule 21(b) provides, in relevant part: ``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 may file 
and serve an answer. . . .''

Suggested Change in Numbering

Renumbering of Proposed New Rule 25

    One commenter suggests that the new rule 25 be renumbered as 
``25a,'' thereby eliminating the need to renumber the current discovery 
rules. In this manner, confusion regarding the renumbered rules may be 
avoided in future cases, when the rules pertaining to discovery are 
researched, and past Commission documents referring to the current rule 
numbers are cited.
    While the Commission understands this concern, it declines to act 
on this suggestion, as the Federal Register Document Drafting Handbook 
(DDH) states that numbers with alpha characters (such as part 25a) are 
not permitted in designating units within the Code of Federal 
Regulation (CFR) system. See Federal Register DDD, Section 1.12 at 1-22 
(October 1998 Revision). The Commission is confident that the 
renumbering of the discovery rules, as proposed in order no. 1274, will 
not significantly impact either the Commission or the participants in 
future proceedings.

Rule 25 Clarification

Clarification of Proposed Rule 25 With Regard to the Extended Period of 
Discovery on the Postal Service

    The proposed rule 25 provides, in relevant part, that ``[d]iscovery 
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.'' One commenter 
suggests that the Commission's intent to limit the extended discovery 
period for

[[Page 6539]]

the sole purpose of rebuttal testimony development may be more fully 
realized by adding the word ``only'' to the provision.
    It is agreed that modification of rule 25 as suggested is 
consistent with the intent of the rule and Commission precedent. The 
Commission therefore modifies rule 25 to read as follows, in relevant 
part: ``Discovery requests of this nature are permissible only 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.''

Minor Corrections and Conforming Changes

    Several minor technical amendments to the Commission's rules of 
practice and procedure are now made. In rule 12(d), the phrase ``by 
each participating with the address'' is changed ``by each participant 
with the address.'' In rule 12(e), which provides for the method of 
service of documents in Commission proceedings, the word ``persons'' is 
changed to ``individuals'' to conform with the inserted special rules. 
In rule 26(c), the phrase ``service of interrogatories'' is substituted 
for the phrase ``the request for production,'' as that rule addresses 
interrogatories for the purpose of discovery. In rule 26(g), the word 
``party'' is changed to ``participant,'' in accordance with Commission 
terminology. Likewise, in rule 27(c), all references to ``party'' are 
changed to ``participant.'' In rule 27(e), ``[s]uch compelled documents 
or things shall be made available to the participants making the motion 
* * *'' is changed to ``[s]uch compelled documents or things shall be 
made available to the participant making the motion * * *'' In rule 
30(e)(1), the phrase ``including the Postal Service'' is deleted, as 
the term ``participant'' used in the sentence in question encompasses 
the Postal Service. Finally, the Commission notes that a minor 
typographical error and some superfluous text in order no. 1274 which 
was highlighted by a commenter was, in fact, corrected in the 
associated Federal Register notice. See 64 FR 72622 (Dec. 28, 1999).

Text of Amended Revisions

    For the reasons discussed above, the Commission hereby amends 
Subpart A of its rules of practice and procedure as set forth in the 
attachment to this order. [Note: material in the attachment appears 
below, conformed to Office of the Federal Register style requirements.]

Ordering Paragraphs

    The first ordering paragraph states that the Commission adopts the 
provisions set out in the attachment as the final rules amending 39 CFR 
3001.1-43. The second paragraph states that the rules are effective 
upon publication in the Federal Register. The third paragraph states 
that the Secretary shall cause this order to be published in the 
Federal Register.

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--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).

[[Page 6540]]

    (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. The copies need not be signed 
but shall show the full name of the person signing the original 
document and the certificate of service attached thereto.

    7. Amend Sec. 3001.12 as follows:
    a. Revise paragraph (b),
    b. Revise paragraph (d), and
    c. Revise paragraph (e) to read as follows:


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 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 participant 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. The 
Secretary's current service list for a particular proceeding may be 
found on the Commission's web site, www.prc.gov. Each participant is 
responsible for ensuring that its listing on the Commission's web site 
is accurate, and should promptly notify the Commission of any errors. 
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 individuals 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, 475 L'Enfant Plaza, SW., Room 6536, Washington, DC 20260-1137. 
Service via electronic filing may be available under circumstances 
prescribed by the Commission or the presiding officer.
* * * * *

    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. Except as otherwise provided 
in these rules, 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

[[Page 6541]]

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.


Sec. 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 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 10 days of service of interrogatories. 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 participant 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

[[Page 6542]]

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 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 participant objecting to 
requests shall serve the objections on the participant requesting 
production of documents or things, upon the Secretary pursuant to 
Sec. 3001.9 and upon the Postal Service and the OCA within 10 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 participant 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 10 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

[[Page 6543]]

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 
only 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 
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 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 specific references to the 
subject matter to be examined and 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 (b)(1),
    b. Revise paragraph (c),
    c. Revise paragraph (e), and
    d. Revise paragraph (f).
    e. Revise paragraphs (k)(3)(i)(d) through (f), (k)(3)(i)(i) and 
paragraph (k)(4) to read as follows:


Sec. 3001.31  Evidence.

* * * * *
    (b) Documentary material.--(1) General. Documents and detailed data 
and information shall be presented as exhibits. Exhibits should be 
self-explanatory. They should contain appropriate footnotes or 
narrative explaining the source of each item of information used and 
the methods employed in statistical compilations. The principal title 
of each exhibit should state what it contains or represents. The title 
may also contain a statement of the purpose for which the exhibit is 
offered; however, this statement will not be considered part of the 
evidentiary record. Where one part of a multi-part exhibit is based on 
another part or on another exhibit, appropriate cross-references should 
be made. Relevant exposition should be included in the exhibits or 
provided in accompanying testimony. 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

[[Page 6544]]

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.
* * * * *
    (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 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).


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) * * *
    (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 10 working days 
after the meeting.
* * * * *
    (2) * * *
    (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. 00-3026 Filed 2-7-00; 1:08 pm]
BILLING CODE 7710-FW-P