[Federal Register Volume 78, Number 115 (Friday, June 14, 2013)]
[Proposed Rules]
[Pages 35812-35826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13502]


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POSTAL REGULATORY COMMISSION

39 CFR Part 3001

[Docket No. RM2012-4; Order No. 1738]


Revisions to Procedural Rules

AGENCY: Postal Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission is proposing revisions to its rules of practice 
related to Postal Service requests for an advisory opinion from the 
Commission on a nationwide (or substantially nationwide) change in the 
nature of service. The proposed revisions are intended to expedite 
issuance of advisory opinions while preserving due process. The 
Commission invites public comment on the proposed revisions to assist 
with development of a final set of revised rules.

DATES: Comments are due: July 29, 2013. Reply comments are due: August 
28, 2013.

ADDRESSES: Submit comments electronically via the Commission's Filing 
Online system at http://www.prc.gov. Those who cannot submit comments 
electronically should contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section by telephone for advice on filing 
alternatives.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
at 202-789-6820.

SUPPLEMENTARY INFORMATION: Regulatory history: 77 FR 23176 (April 18, 
2012).

Table of Contents

I. Introduction
II. Proposed N-Case Procedures
III. Section-By-Section Analysis
IV. Conclusion
V. Ordering Paragraphs
Appendix-Initial and Reply Comments

I. Introduction

    This is the second in a series of orders addressing the need for 
more timely completion of nature of service proceedings. The 
Commission's initial order was issued as an advance notice of proposed 
rulemaking and solicited comments on whether changes to existing 
procedures and regulations are

[[Page 35813]]

warranted and, if so, what those changes should be.\1\ In that same 
order, the Commission invited interested persons to comment on other 
relevant subjects. Id. at 2. Comments were filed by eight parties.\2\
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    \1\ Order No. 1309, Advance Notice of Proposed Rulemaking on 
Modern Rules of Procedure for Nature of Service Cases Under 39 
U.S.C. 3661, April 10, 2012 (ANOPR).
    \2\ The Appendix to this order contains a list of the parties 
filing comments.
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    In this order, the Commission proposes to amend 39 CFR Part 3001, 
subpart D, which sets forth new procedures for all nature of service 
proceedings. Under the proposed procedures, nature of service 
proceedings would be completed within 90 days of the date on which the 
Postal Service files its request under 39 U.S.C. 3661 for an advisory 
opinion. Comments are due 45 days after publication in the Federal 
Register. Reply comments are due 75 days after publication in the 
Federal Register.

II. Proposed N-Case Procedures

A. Background

    Nature of service proceedings (N-Cases) involve Commission 
consideration of proposals by the Postal Service for ``a change in the 
nature of postal services which will generally affect service on a 
nationwide, or substantially nationwide basis . . . .'' 39 U.S.C. 
3661(b). At the conclusion of each N-Case, the Commission must issue an 
advisory opinion which ``conforms to the policies established under 
[title 39 of the United States Code].'' 39 U.S.C. 3661(c). The first N-
Case advisory opinion was issued in 1976.\3\ Over the intervening 30 
years, four other N-Cases were initiated.\4\ Since 2006, five N-Cases 
have been docketed.\5\
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    \3\ Docket No. N75-1, Advisory Opinion Concerning a Proposed 
Change in the Nature of Postal Services, April 22, 1976.
    \4\ Docket No. N75-2, Changes in Operating Procedures Affecting 
First-Class Mail and Airmail; Docket No. N86-1, Change in Service, 
1986, Collect on Delivery Service; Docket No. N89-1, Change in 
Service, 1989, First-Class Delivery Standards Realignment; and 
Docket No. N2006-1, Evolutionary Network Development Service 
Changes, 2006.
    \5\ Docket No. N2009-1, Station and Branch Optimization and 
Consolidation Initiative, 2009; Docket No. N2010-1, Six-Day to Five-
Day Street Delivery and Related Service Changes, 2010; Docket No. 
N2011-1, Retail Access Optimization Initiative, 2011; Docket No. 
N2012-1, Mail Processing Network Rationalization Service Changes, 
2012; and N2012-2, Post Office Structure Plan, 2012.
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    The increasing frequency of N-Cases has been accompanied by an 
increase in their complexity which, in turn, has increased their 
length. Of the five N-Cases filed since 2006, three of those cases took 
8 months or more to complete. See ``Survey of N-Cases'' attached to 
APWU Reply Comments. The longest of those cases (Docket No. N2010-1) 
took nearly 1 year to complete. Id. In its comments in this proceeding 
and elsewhere, the Postal Service has asserted that its extremely 
challenging financial situation requires prompter resolution of N-
Cases. E.g., Postal Service Comments at 3. According to the Postal 
Service, the value and relevance of advice provided by the Commission 
in its advisory opinions depend upon timely receipt of that advice. Id. 
Moreover, although not enacted, the Senate passed legislation in the 
last Congress that would have required the Commission to complete N-
Cases within 90 days of filing.\6\
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    \6\ S. 1789, 21st Century Postal Service Act of 2012, 112th 
Cong. Sec.  208 (2012) (S. 1789).
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    A number of stakeholders, such as commercial mailers and postal 
employee organizations, have responded to the Postal Service's request 
for the expedition of N-Cases by pointing to legal requirements, as 
well as practical considerations, which, they assert, weigh against the 
imposition of a rigid timeframe for the completion of N-Cases. Valpak 
Comments at 9-11. They claim that the 90-day time limit proposed by the 
Postal Service is just such a rigid and unrealistic time frame. Id.

B. Commission's Legal Authority

    The Commission's legal authority to issue advisory opinions is set 
forth in 39 U.S.C. 3661(c). That subsection provides that:

[t]he Commission shall not issue its opinion on any proposal until 
an opportunity for hearing on the record under sections 556 and 557 
of title 5 has been accorded to the Postal Service, users of the 
mail, and an officer of the Commission who shall be required to 
represent the interests of the general public. The opinion shall be 
in writing and shall include a certification by each Commissioner 
agreeing with the opinion that in his judgment the opinion conforms 
to the policies established under this title.

39 U.S.C. 3661(c).
    The Commission's procedural rules implementing the requirements of 
section 3661 are set forth in 39 CFR part 3001, subpart D. Procedural 
rules of general applicability in 39 CFR part 3001, subpart A also 
apply.
    The prohibition on the issuance of an advisory opinion ``until an 
opportunity for hearing on the record under sections 556 and 557 of 
title 5 has been accorded'' has historically been interpreted by the 
Commission to require formal, trial-type proceedings.\7\ 
Notwithstanding this interpretation, section 3661 does not prohibit the 
Postal Service from implementing proposed changes in postal services 
prior to the conclusion of Commission proceedings. Nor does section 
3661 prohibit the Postal Service from implementing proposed changes in 
postal services found by the Commission in its advisory opinion to be 
inappropriate or unwise. In other words, advisory opinions issued under 
section 3661 are advisory in nature.
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    \7\ Docket No. N2012-1, Order No. 1183, Order Denying Motion for 
Reconsideration of Ruling Establishing Procedural Schedule, January 
31, 2012.
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    Commission rules under 39 CFR 3001.72 require the Postal Service to 
file its formal request for an advisory opinion not less than 90 days 
in advance of the date on which the Postal Service proposes to make 
effective the change in the nature of postal services involved. As 
noted, however, three of the last five N-Case decisions since 2006, 
took 8 months or longer to complete.

C. Summary of Commenter Positions and Commission Analysis

    C. The Postal Service believes that the Commission's goal should be 
to ensure N-Case decisions are issued within 90 days. Postal Service 
Comments at 3. In the Postal Service's view, the most effective way to 
improve N-Case efficiency would be to enact legislation, such as S. 
1789, which amends or replaces section 3661. Id. at 6. In that regard, 
Senator Carper cites section 208 of S. 1789 as a guide to Commission 
action. Carper Comments at 2.
    In the absence of legislative changes, the Postal Service urges the 
Commission to adopt a number of changes that it claims would streamline 
N-Cases. Postal Service Comments at 2-29. The Postal Service's 
principal recommendation is for the Commission to ``adopt a cap on the 
length of N-Cases that applies to all such cases . . . and . . . [to] 
adopt a multi-track approach to proceedings, with definite, shorter 
timeframes based on the complexity of the case . . . .'' Id. at 5; see 
generally id. at 5-11. Within this framework, the Postal Service offers 
alternatives for reforming discovery processes in N-Cases. Id. at 12-
20. These alternatives include Commission-led discovery, as opposed to 
participant-led discovery; limits on the number of interrogatories; and 
clearer and stricter boundaries for relevance that would restrict the 
scope and number of discovery requests. Id. It also offers other 
suggestions independent of its

[[Page 35814]]

main proposal for improving N-Case processing. Id. at 20-29.
    To support its regulatory alternatives to legislative action, the 
Postal Service relies upon Citizens Awareness Network v. U.S., 391 F.3d 
338 (1st Cir. 2004) in asserting that the Administrative Procedure Act 
(APA) ``provides agencies with broad discretion to fashion procedures 
that make the hearing process more efficient.'' Id. at 4 (footnote 
omitted). The Citizens Awareness decision was cited by the Commission 
as an example of judicial recognition of the authority of regulatory 
agencies ``to place limits on the use of formal litigation procedures 
in certain types of cases . . . .'' ANOPR at 6. The Commission 
encouraged commenters to address what form any new procedures might 
take, and what procedural safeguards must be preserved to assure that 
meaningful public participation and Commission decisions are helpful to 
the Postal Service's decision making process as required by law. Id. at 
7.
    Several commenters oppose the Postal Service's principal 
recommendation regarding time limits on N-Cases. See, e.g., Valpak 
Comments at 9-11; APWU Reply Comments at 6-9. They base their 
opposition, in part, on the language of section 3661 that requires ``a 
hearing on the record under sections 556 and 557 [of the APA].'' See 
Valpak Comments at 2. They argue further that the 90-day limit on N-
Cases proposed by the Postal Service is both impossible and 
inconsistent with procedural due process. See id. at 9-11. They also 
take issue with the Commission's citation to the Citizens Awareness 
decision, asserting, for example, that ``Citizens Awareness is not, and 
likely will never be, controlling authority over the Commission's 
rules'' and is currently ``merely persuasive authority for the 
Commission's formulation of new rules.'' Id. at 13 n.17; see also APWU 
Reply Comments at 2-5.
    The Public Representative believes that some changes in N-Case 
rules are warranted, but that the nature of those changes depends upon 
what ``a hearing on the record under APA sections 556 and 557'' 
requires. Public Representative Comments at 11. Although the Public 
Representative does not believe the Citizens Awareness decision 
supports major departures from current N-Case practice, she does not 
interpret that decision as precluding the exploration of ways to 
expedite N-Cases. Id. at 2. The Public Representative asserts that N-
Case procedures must assure meaningful public participation and must 
foster the development of a sound record that permits the Commission to 
provide sound expert advice to the Postal Service in a timely manner. 
Id. at 7.
    The ANOPR cited Citizens Awareness as support for ``the general 
proposition that agencies have flexibility to tailor their procedures 
to make hearing processes more efficient.'' ANOPR at 7. That general 
proposition is well settled. See Am. Trucking Ass'ns, Inc. v. United 
States, 627 F.2d 1313, 1321 (D.C. Cir. 1980) cited by the Court in 
Citizens Awareness, 391 F.3d at 349. As also pointed out by the Court 
in Citizens Awareness, it is equally well settled that ``[a]n agency's 
rules, once adopted, are not frozen in place . . . [and that] . . . 
[t]he opposite is true: an agency may alter its rules in light of its 
accumulated experience in administering them [citation omitted].'' Id. 
at 351.
    What appears to be of greatest concern to commenters who have 
attempted to distinguish the Citizens Awareness decision is their 
suspicion that the Commission intends to implement the particular 
regulatory changes at issue in Citizens Awareness, (such as the 
substitution of ``open file discovery'' for traditional forms of 
discovery), in N-Cases solely because these changes were approved by 
the Citizens Awareness Court for use in Nuclear Regulatory Commission 
proceedings. This suspicion is unfounded. As the Commission expressly 
stated in the ANOPR, ``procedures differ from agency to agency and . . 
. changes in those procedures require careful consideration in the 
specific statutory and regulatory contexts presented.'' ANOPR at 7. It 
is in the context of section 3661 and experience in adjudicating N-
Cases that the procedures discussed below are being proposed.
    Notwithstanding their objections to the Postal Service's main 
proposal, several commenters have suggested various procedural changes 
intended to accelerate the pace of N-Cases and expedite the issuance of 
advisory opinions. Among the proposed changes are: (1) A proposal to 
require pre-filing briefings by the Postal Service; (2) a proposal to 
tighten the timeframes for objecting to discovery requests and for 
moving to compel production of discovery materials; and (3) a proposal 
to accelerate access to non-public materials, e.g., APWU Comments at 2-
3, 6, 6-7. NNA does not oppose shorter procedural schedules, provided 
they do not impose unrealistic litigation deadlines that place 
additional costs on interested parties. NNA Comments at 3. NNA does 
oppose the elimination of fact finding and a shorter administrative 
process that defeats the purpose of oversight and leads to less 
transparency. Id. These and other suggestions have been considered by 
the Commission in preparing the proposal that is the subject of this 
notice of proposed rulemaking.

D. Overview of the Proposed Procedures

    Comments filed in response to the ANOPR suggest two significantly 
different approaches to reduce delays in the issuance of N-Case 
advisory opinions. On the one hand, the Postal Service proposes strict 
time deadlines on N-Case proceedings and offers suggested procedural 
changes that it believes would enable the Commission to meet those 
deadlines. It urges adoption of a ``multi-track approach'' that would 
distinguish between relatively simple N-Cases to be completed within 45 
days, cases of intermediate complexity to be completed within 60 days, 
and all other N-Cases, which would be subject to a 90-day time limit.
    In order to meet the applicable 45-day or 90-day deadline, 
fundamental changes would be made in the manner in which discovery and 
hearings would be conducted. For example, the traditional method of 
discovery on the Postal Service would be replaced by the method used in 
exigent rate cases conducted under 39 U.S.C. 3622(d)(1)(E) and 39 CFR 
part 3010, subpart E. Postal Service Comments at 12-16. This latter 
method permits participants to suggest lines of discovery to the 
Commission, but gives the Commission the ultimate authority to decide 
whether and, if so, which suggested discovery requests to use. 
Similarly, the Postal Service asserts that cross-examination at 
hearings either be eliminated entirely or more tightly controlled. Id. 
at 20-25. Other suggested procedural changes include a shortened period 
for intervention, id. at 27; the elimination of field hearings, id. at 
25-27; and the elimination of multiple rounds of hearings, id. at 5.
    A different approach is proposed by the commenters opposed to the 
Postal Service's multi-track approach. These commenters object to the 
establishment of time deadlines. APWU Reply Comments at 6-9; Valpak 
Comments at 9-11. Instead, they offer suggestions to improve and refine 
traditional procedures in order to reduce delays. For example, they 
suggest a more cooperative exchange of information prior to the filing 
by the Postal Service of its request for an advisory opinion. APWU 
Comments at 2-3. They also suggest limiting the number of discovery 
requests that can be made by limited participators, shortening the time 
periods for responding to motions and discovery requests, and improving

[[Page 35815]]

procedures for gaining access to relevant non-public information in the 
possession of the Postal Service. Id. at 5-7.
    Based upon its initial review of the ANOPR comments, the Commission 
tentatively concludes that the most effective way of assuring timely 
issuance of advisory opinions is to adopt a time deadline for N-Case 
completion. Since, however, the goal of N-Cases is not simply to issue 
prompt opinions, but to issue meaningful opinions that adequately 
address relevant issues, participants must be afforded an opportunity 
to discover facts and challenge the factual assertions of others that 
bear upon relevant issues.
    The imposition of time deadlines on N-Cases without fatally 
impairing the ability of participants to develop an adequate factual 
record by means of discovery and cross-examination presents a number of 
challenges. Perhaps the greatest challenge is to provide for adequate 
discovery within a restricted time period. Another significant 
challenge is to ensure that participant cross-examination is adequate 
to explore relevant issues while not unnecessarily or unduly prolonging 
hearings.
    Although the requirement for the Postal Service to file its formal 
request for an advisory opinion not less than 90 days in advance of the 
proposed effective date has been in effect since 1973, the current 
rules challenge the Commission's ability to issue timely advisory 
opinions within such 90-day period.
    In this notice, the Commission proposes procedural changes intended 
to preserve adequate opportunities for discovery and cross-examination 
within a fixed time period of 90 days from the date of filing of the 
Postal Service's request until the issuance of an advisory opinion. The 
principal elements of the proposed N-Case format are:

     A requirement that N-Cases conducted within a fixed 
time period provide a pre-filing phase during which a free and open 
exchange of information is conducted;
     Revised filing requirements intended to confirm that 
information was freely exchanged during the pre-filing period and 
which encourage submission of a complete and final service change 
proposal;
     The issuance of an initial notice and scheduling order 
based upon a pro forma procedural schedule that provides for 
completion of the proceeding within a fixed time period;
     Elimination of the ``limited participator'' status in 
N-Cases;
     Expedited filing deadlines for filing and responding to 
motions;
     New N-Case discovery procedures that build upon the 
pre-filing conference and which include a provision for an initial 
mandatory technical conference; a limitation on the number of 
written interrogatories; and the continued use of document requests, 
and requests for admissions traditionally used in connection with 
hearings conducted on the record;
     Revised procedures for prompter access to non-public 
materials;
     The expedited filing of rebuttal and surrebuttal 
testimony, if any;
     A process by which participants elect to file rebuttal 
testimony and a restriction on rebuttal cases that limits the scope 
of such cases to material issues relevant to the specific proposal 
made by the Postal Service in its advisory opinion request;
     A limitation on the filing of surrebuttal cases that 
requires a prior Commission determination that exceptional 
circumstances make the filing of a participant's proposed 
surrebuttal necessary;
     The elimination, in most cases, of field hearings;
     Revised hearing procedures providing for back-to-back 
hearings for the Postal Service's direct case, rebuttal testimony, 
if any, and surrebuttal testimony, if any;
     The implementation on a case-by-case basis of 
limitations on cross-examination to factual issues relevant to the 
Postal Service's proposal;
     A limitation on the length of initial and reply briefs 
and the adoption of an expedited schedule for filing such briefs; 
and
     The adoption of a policy of issuing advisory opinions 
that are targeted more precisely to the Postal Service's proposals 
and, when appropriate, instituting special studies that explore 
related subjects.

Each of these features of the proposed N-Case format is explained more 
fully below.
1. Generally Applicable Rules of Practice
    Nature of service proceedings currently conducted under subpart D 
are subject to the Commission's generally applicable procedural rules 
in subpart A. 39 CFR 3001.71. In some cases, the proposed N-Case 
procedures require departures from the generally applicable subpart A 
procedures. Some of these departures are relatively easy to accommodate 
by language changes to subpart A rules. For example, the proposed 
revision to 39 CFR 3001.17 would add an additional element to the 
content requirements of Commission notices in N-Case proceedings; see 
also proposed changes to 39 CFR 3001.5(h).\8\
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    \8\ On March 19, 2013, the Commission instituted a rulemaking 
proceeding to make certain minor changes to its rules of practice in 
39 CFR Part 3001. Notice of Proposed Rulemaking Regarding Minor 
Adjustments to the Rules of Practice, Docket No. RM2013-1, March 19, 
2013. The changes proposed to 39 CFR 3001.5(h) in Docket No. RM2013-
1 are independent of the changes being proposed to that same rule in 
this proceeding.
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    Other proposed changes to N-Case procedures would require more 
substantial changes to subpart A rules of practice. For example, 
significant changes would be required in the rules governing motions 
(39 CFR 3001.21), discovery (39 CFR 3001.25-3001.28), hearings (39 CFR 
3001.30), and legal briefs (39 CFR 3001.34). To accommodate the more 
significant changes, the Commission proposes to exclude specific 
subpart A rules from use in N-Cases and, in their place, establish 
specific N-Case rules in subpart D to cover these subjects. In this 
manner, the Commission seeks to foster the continued use of subpart A 
rules of practice, while establishing more specialized procedures in 
subpart D that are needed to expedite N-Cases.
2. Pre-Filing Phase
    APWU suggests that the N-Case process could be shortened if the 
Postal Service briefed the Commission and interested parties in advance 
of its filing. APWU Comments at 2. It states that the Postal Service 
often knows the parameters of its formal proposal months before it 
files its request for an advisory opinion. APWU also observes that the 
first few weeks after an N-Case has been filed are often without much 
activity because parties are reviewing the materials and determining 
whether intervention is warranted. Id. APWU asserts that pre-filing 
briefings would allow parties to identify potential issues of concern 
in advance and find and contract with experts early. It would also 
allow the Postal Service to pre-empt discovery requests and/or 
discovery disputes by addressing issues of concern in its initial 
filing. Id. at 3.
    In response, the Postal Service states that absent any actual 
limits on N-Case procedures, it is not a foregone conclusion that this 
head start would actually reduce the time spent on discovery and 
witness preparation. Postal Service Reply Comments at 12. It maintains 
that parties already have ample access to baseline information about 
Postal Service operations in the form of Annual Compliance Reports, 
Annual Compliance Determinations, Sarbanes-Oxley Act disclosures, and 
other periodic reports and claims that it often provides advance public 
notice of its plans to change the nature of postal services already. 
Id. at 13.
    Expanding and formalizing the pre-filing process are critical 
components of expedited N-Case procedures. Participants will be able to 
voice their concerns at an earlier point in time, which the Commission 
expects will aid the Postal Service in development of its formal 
proposal. The information

[[Page 35816]]

obtained prior to the initial filing will also expedite the review of 
the Postal Service's formal proposal when it is filed and therefore 
reduce the need for extensive discovery while still allowing for 
issuance of an informed advisory opinion. The Postal Service has 
affirmed that, on occasion, it has provided advance notice of its own 
volition. The Commission believes that making this practice routine 
will maximize its potential benefit.
    The proposal to formalize pre-filing consultations is not intended 
to prevent the Postal Service from conducting private discussions with 
individual mailers or other interested persons. Such discussions with 
customers, suppliers, and others can, themselves, allow the Postal 
Service to obtain information useful in providing, and in considering 
changes to, postal services. The Commission's proposal is intended to 
ensure that all participants with a reasonably foreseeable interest in 
an N-Case have a fair opportunity to discuss proposed changes in the 
nature of postal services with the Postal Service before a request for 
an advisory opinion is filed. The discussions envisioned by the 
Commission would be informal and off the record.
    As proposed, the new rules would require potential stakeholders be 
consulted and invited to comment on the Postal Service's proposal. The 
Postal Service would be required to notify the Commission that it was 
commencing pre-filing discussions. Upon receipt of such notice, the 
Commission shall issue a notice of pre-filing conference(s), which 
shall be published in the Federal Register, and appoint a Public 
Representative.
3. Initiation of a Case
a. Postal Service Request
    When filing a request for an advisory opinion, the Postal Service 
would be required to indicate that the required pre-filing 
conference(s) occurred. The Postal Service would also be required to 
specify the time and place of the conference(s) and provide a summary 
of discussions conducted at the conference(s). In addition, the Postal 
Service would be required to explain how it made a good faith effort to 
address criticisms and suggestions made by interested persons prior to 
the filing of the request. All other filing requirements previously 
imposed by 39 CFR 3001.72 will remain applicable, including the 
mandatory supporting data to be filed with the request. The discovery 
period would commence on the date of the filing.
b. Notice and Scheduling Order
    As soon as is practicable after receipt of the Postal Service's 
formal request, the Commission will issue a notice and scheduling 
order. This order will set deadlines for initial and reply comments, 
and set a tentative schedule for the case including: (1) A deadline for 
notices of intervention; (2) the date(s) for the mandatory technical 
conference between the Postal Service, Commission staff, and interested 
parties; (3) the deadline for discovery on the Postal Service's direct 
case; (4) the deadline for responses to participant discovery on the 
Postal Service's case; (5) the deadline for participants to confirm 
their intent to file a rebuttal case; (6) the date for filing 
participant rebuttal cases, if any; (7) the date for filing motions for 
leave to file surrebuttal testimony and answers thereto; (8) the date 
for filing surrebuttal testimony, if any; (9) the date(s) for hearings 
on the Postal Service's direct case, rebuttal testimony, if any, and 
surrebuttal testimony, if any; (10) the date for filing initial briefs; 
(11) the date for filing reply briefs; and (12) a deadline for issuance 
of an advisory opinion, which is 90 days from the date of filing. These 
dates are subject to change for good cause only.
    APWU asserts that incomplete or frequently revised proposals are a 
significant cause of delay in the process. APWU Comments at 3. If the 
Commission makes the determination that the Postal Service's formal 
proposal is incomplete, or if significant modifications are made while 
the case is in progress, deadlines for the case may be extended.
    A pro forma schedule is attached to the regulations for 
illustrative purposes. Due dates would remain within the general range 
of the sample schedule, but would be adjusted to accommodate holidays 
and weekends. The new procedural schedule would eliminate several steps 
traditionally present in N-Cases, such as discovery on intervenor 
testimony and exhibits. The proposed schedule also reflects abbreviated 
motion deadlines, mandatory pre-filing discussions, and changes in 
traditional discovery procedures.
c. Participants
    Under the current rules for N-Cases, participants must file 
interventions designating whether they wish to be full or limited 
participants in the proceeding. See 39 CFR 3001.20 and 3001.20a. APWU 
claims that ``[t]his distinction as currently applied makes no 
difference as to the level of participation in discovery an intervenor 
is allowed to undertake.'' Id. at 5. Therefore, it requests that the 
Commission consider revising the definitions of limited and full 
participants to better describe the type of participation in discovery 
allowed or required by each. Id.
    In the interest of simplifying the process and standardizing the 
level of participation among all parties, the Commission proposes to 
eliminate the distinction between full and limited participants in an 
N-Case proceeding. This change is being made by excluding 39 CFR 
3001.20a from subpart A rules applicable to N-Cases. See proposed 
section 3001.71. All formal intervenors shall be considered full 
participants and allowed equal opportunity to participate in discovery.
d. Motions
(i) In General
    Under 39 CFR 3001.21 of the Commission's current rules of practice, 
answers to motions must be filed within 7 days. Shortening the time 
period for answers to motions may help reduce overall delay. The 
Commission is therefore proposing that the time permitted for answers 
to all motions, except those discussed below, be reduced from 7 days to 
5 calendar days. See proposed 39 CFR 3001.75. This will allow the 
participants adequate opportunity to contest motions while also 
preserving a more expeditious pace of the proceeding.
(ii) Motions To Be Excused From Answering Discovery Requests
    Disputes frequently arise in N-Cases over the appropriateness of 
discovery requests directed at the Postal Service. In some cases, the 
Postal Service challenges the relevance of a request because it is 
alleged to go beyond the scope of the Postal Service's proposed changes 
in postal services. In other cases, the Postal Service opposes a 
discovery request because of the alleged burden it would impose. Under 
the Commission's current rules of practice, the process of resolving 
these disputes begins with a Postal Service objection to a discovery 
request and is followed by a participant's motion to compel and a 
Postal Service answer to the motion to compel.
    The Commission is proposing to accelerate the resolution of such 
disputes by eliminating the antecedent requirement of a Postal Service 
objection to a discovery request before commencement of the motions' 
practice aimed at resolving the dispute. In lieu of an initial 
objection to a discovery request, the Postal Service would be required 
to file a motion to be excused

[[Page 35817]]

from answering the request, within 3 days of the filing of the 
discovery request at issue. The proponent of the request would file an 
answer within 2 days, and the dispute would be resolved either by the 
Commission or the presiding officer. The shortened procedure, coupled 
with shortened filing deadlines for both the motion and answer, is 
designed to accelerate resolution of discovery requests.
    Although the Postal Service has an obligation in all cases to 
provide complete and responsive answers to discovery requests, the 
Commission recognizes that in some cases, discovery responses could 
arguably be unresponsive to a request. In such cases, the participant 
seeking discovery could file a motion to compel a responsive answer 
under the new, expedited provisions governing the filing of motions.
(iii) Motions To Strike
    Under the Commission's current rules of practice, motions to strike 
testimony must be filed at least 14 days before a witness's scheduled 
appearance. 39 CFR 3001.21(c). The Commission is proposing to shorten 
that period by requiring that motions to strike testimony be filed at 
least 3 calendar days before a witness's scheduled appearance, unless 
good cause is shown. Answers to motions to strike would also be reduced 
from the current 7 days to 2 calendar days.
    (iv) Motions for Leave To File Surrebuttal Testimony
    Proposed section 3001.91, discussed below, requires participants 
who wish to submit surrebuttal testimony to obtain prior leave from the 
Commission to file such testimony. In order to obtain leave to file, 
participants must file a motion under proposed subsection 3001.75(d). 
This new subsection would require that such motions be filed on or 
before the date specified in the procedural schedule established 
pursuant to proposed section 3001.80. The deadline for filing a motion 
for leave to file surrebuttal testimony will be 2 days after the filing 
of that rebuttal evidence which is to be addressed by the proposed 
surrebuttal. Answers to motions for leave to file surrebuttal 
testimony, if any, must be filed within 2 days.
4. Discovery
a. General
    The Postal Service asserts that ``[l]engthy discovery periods 
contribute to the overall length of time to resolve N-Case proceedings, 
thereby postponing the issuance of an advisory opinion.'' Postal 
Service Comments at 13. Other parties contend that the opportunity for 
robust discovery must be preserved. See APWU Comments at 4; NNA 
Comments at 2. The Commission's proposal seeks to eliminate delay in 
discovery while continuing to allow participants a reasonable amount of 
time to obtain the necessary information.
    In seeking to reconcile these objectives, the Commission proposes 
changes to the manner in which relevant information is obtained by 
participants, including addition of a mandatory technical conference. 
In conjunction with pre-filing discussions, the mandatory conference 
would enable the participants to obtain a more comprehensive 
understanding of the Postal Service's proposal at an earlier stage in 
the process.
    As part of this general scheme of streamlined discovery to promote 
expedition, each participant would be limited to serving 25 
interrogatories, which includes all initial and follow-up questions. 
This limit would not apply to requests for admission or to requests for 
production of documents or information. However, requests for 
production of documents and information would be limited in scope. 
Participants would only be required to furnish existing data in 
response to a request by another participant. They would not be 
obligated to respond to requests for data by providing data that would 
have to be created or projected from existing data. The Commission 
anticipates that the information obtained from pre-filing discussions 
and technical conference will obviate the need for an extensive number 
of interrogatories.
    The Commission is also proposing changes in the procedures for more 
expeditious resolutions of discovery disputes. See Section 
II.D.3.d.ii., supra.
b. Mandatory Technical Conference
    On the day(s) set forth in the scheduling order and for all days 
within the second and third week after the filing of its formal 
proposal (excluding weekends and legal holidays), the Postal Service 
must make witnesses available for a mandatory technical conference with 
Commission staff and interested participants. This conference will be 
conducted off the record for the purpose of clarifying various 
technical issues in the Postal Service's initial request and for 
identifying and requesting information that is relevant to evaluation 
of the Postal Service's proposed changes in the nature of postal 
services. Information obtained during the conference may also be used 
to seek additional information by means of formal discovery.
c. Written Interrogatories
    Under the new rules, participants also would be limited to filing a 
total of 25 interrogatories for the entire N-Case. An interrogatory 
with subparts that are logically and factually subsumed within and 
necessarily related to the primary question will be counted as one 
interrogatory. This limit on the number of interrogatories is part of a 
comprehensive scheme to streamline discovery that would be supplemented 
by pre-filing consultations and mandatory technical conferences, among 
others.
    APWU recommends shortening the time for answering interrogatories 
from 14 days to 10 days, and that the time for objections to 
interrogatories be shortened from 10 days to 5 days. APWU Comments at 
6. The Commission has tentatively determined that further shortening 
the time for answering interrogatories from 14 days to 7 calendar days 
would be appropriate given the expedited nature of the discovery 
period.
    Disputes over interrogatories would be resolved on an expedited 
basis under the motion procedures contained in proposed Sec.  3001.75. 
Under those procedures, the Postal Service could challenge 
interrogatories directly in whole or in part by filing a motion to be 
excused from answering within 3 calendar days of service. See proposed 
section 3001.75(b).
d. Requests for Production
    Requests for production of documents or information are appropriate 
for obtaining data actually in existence at the time of the request. 
Participants are not required to respond to requests for data by 
providing data that would have to be created or projected from existing 
data. The time period for responding to a request for production of 
documents would be shortened from 14 days to 7 calendar days.
    As in the case of interrogatories, disputes over production 
requests would be resolved on an expedited basis under the motion 
procedures contained in proposed section 3001.75. Challenges to 
production requests could be made directly by the Postal Service's 
filing of a motion to be excused from answering within 5 calendar days 
of service. See section 3001.75(b).
e. Admissions
    As under existing Commission practice, any participant may serve 
upon any other participant a written request for the admission of any

[[Page 35818]]

relevant, unprivileged facts, including the genuineness of any 
documents or exhibits to be presented at the hearing. Admissions are 
not considered interrogatories and therefore are not subject to the 
limit of 25 interrogatories. The time period for responding to a 
request for admission is shortened from 14 days to 7 calendar days.
    As in the case of interrogatories and requests for production, 
disputes over requests for admissions would be resolved on an expedited 
basis under the motion procedures contained in proposed section 
3001.75. Challenges to production requests could be made directly by 
the Postal Service's filing of a motion to be excused from answering. 
See proposed section 3001.75(b).
    A motion to be excused from answering requests for admission would 
be due within 5 calendar days of service. Requests for admissions in 
response to which no motion to be excused from answering is filed would 
be deemed admitted. Answers to motions to be excused from answering 
would be due within 7 calendar days of the response or motion.
5. Participant Rebuttal Cases
    In order to ensure the timely issuance of advisory opinions, the 
scope of participant rebuttal cases must be limited to the proposal 
that is the subject of the Postal Service's advisory opinion request. 
Rebuttal cases that propose, or seek to address, alternatives to the 
Postal Service's proposal will no longer be permitted.
    If participants wish to file rebuttal testimony, they must, by the 
date provided for in the procedural schedule, confirm this intent in 
writing with the Commission. No Commission leave will be required to 
file rebuttal testimony. Any rebuttal testimony filed by a participant 
is due approximately 5 days after the confirmation of intent to file a 
rebuttal case is filed.
    If no participant files a notice of intent to submit a rebuttal 
case, hearings on the Postal Service's direct case shall commence 
approximately 5 days after the deadline for confirming an intent to 
submit rebuttal and the Commission may adjust such remaining procedural 
dates as it deems to be appropriate.
6. Surrebuttal Cases
    In some cases, the Postal Service or other participants may wish to 
file surrebuttal testimony. The filing of surrebuttal will only be 
permitted if the Commission first determines that exceptional 
circumstances warrant such filing. The scope of any surrebuttal must be 
limited to material issues relevant to the Postal Service's proposal 
and to the rebuttal testimony that is to be addressed by the proposed 
surrebuttal.
    Motions for leave to file surrebuttal must be filed with the 
Commission by the date provided in the procedural schedule. 
Participants requesting to file surrebuttal evidence bear the burden of 
demonstrating the need for surrebuttal. The motion may only be granted 
if the Commission, in its discretion, determines that exceptional 
circumstances exist.
    If a motion for leave to file surrebuttal is granted, the moving 
participant must file its proposed surrebuttal by the date previously 
established in the procedural schedule.
    In the event no motion for leave to file surrebuttal is filed, 
hearings on the Postal Service's request and rebuttal testimony, if 
any, will commence approximately 5 days after the deadline for 
requesting leave to file surrebuttal and the Commission may adjust such 
remaining procedural dates as it deems appropriate.
    If one or more motions for leave to submit surrebuttal are filed, 
hearings shall commence approximately 5 days after the date surrebuttal 
would have otherwise been due under the previously established 
procedural schedule.
7. Hearings
    The rule currently governing hearings in N-Cases is rule 30 of the 
Commission's rules of practice. See 39 CFR 3001.30. A new rule 
applicable to hearings in N-Cases is being adopted which makes 
modifications in the N-Case hearing process. Under the new procedure, 
hearings will be held continuously and sequentially, as follows: (1) 
hearings on the Postal Service's case-in-chief; (2) hearings on 
participant rebuttal testimony, if any; and (3) hearings on surrebuttal 
testimony, if any.
    The commencement date of hearings will depend upon whether rebuttal 
cases are filed and upon whether any participant requests leave to file 
a surrebuttal case. See, infra, proposed Appendix A to Part 3001, 
subpart D, Pro Forma N-Case Procedural Schedule, lines 8-13. For 
example, if, in particular cases, no participant wishes to file 
rebuttal or surrebuttal testimony (or if leave to file surrebuttal 
testimony is denied), hearings and adjustments in the procedural 
schedule may be made to accelerate the filing of briefs.
    Hearings will be expedited by limiting cross-examination to 
material issues relevant to the Postal Service's proposal. Cross-
examination that seeks to explore alternative proposals will not be 
permitted. Such proposals will, if appropriate, be considered in 
special studies or new public inquiry proceedings. See proposed rule 
3001.72.
8. Briefing
    The briefing process in N-Cases will be streamlined by the adoption 
of strict page limits and an accelerated briefing schedule. The length 
of initial and reply briefs shall be limited to 14,000 words and 7,000 
words, respectively. Initial briefs shall be filed approximately 7 days 
following the conclusion of hearings. Reply briefs shall be filed 7 
days thereafter.
9. Procedure for Access to Non-Public Materials
    APWU claims that the current process required for intervenors to 
access non-public information is burdensome and causes unnecessary 
delays. It advocates a simplified approach for those parties who do not 
have a competitive relationship with the Postal Service. APWU Comments 
at 7. The Postal Service states that it is not evident that the 
Commission's procedures for protecting sensitive information actually 
contribute to the protracted schedules of N-Cases, but that it ``would 
not be averse to further exploration, in an appropriate venue, of ways 
in which these procedures could be made more efficient.'' Postal 
Service Reply Comments at 15-16.
    In light of the shortened discovery period, the Commission agrees 
that an expeditious process is needed for making non-public information 
in nature of service proceedings available more promptly to qualified 
representatives of participants. However, the implications of APWU's 
proposals could extend beyond the boundaries of N-Cases and are 
therefore more properly the subject of review with the benefit of 
comments from a broader spectrum of interested persons.
    The Commission notes that section 3007.40 of its regulations, 39 
CFR 3007.40, provides mechanisms for expediting access to information 
designated as non-public by the Postal Service. In the absence of a 
Postal Service objection, access to non-public material can be obtained 
from the Commission within a few days of the request for access. See 39 
CFR 3007.40(d)(2). For example, if a person requesting access reaches 
agreement with the Postal Service by the time it files its request with 
the Commission, that person can so represent in its filing. In such a 
case, the Commission would be prepared promptly to issue an order 
granting access.

[[Page 35819]]

10. Advisory Opinions and Special Studies
    Proposed section 3001.72 provides that the Commission shall issue 
its advisory opinion no later than 90 days after the filing of the 
Postal Service's request unless the Commission makes a determination of 
good cause for extending the 90-day deadline. A determination of 
whether good cause exists would, of necessity, be case specific. The 
Commission is, however, committed to issuing advisory opinions within 
90 days of filing.
    As an additional means of expediting N-Cases, the Commission 
proposes to follow a policy of limiting the scope of its advisory 
opinion to the changes in postal services proposed by the Postal 
Service. While alternative changes might be noted, they would not be 
evaluated. If, in any proceeding, alternatives or related issues of 
significant importance arise, the Commission may, in its discretion, 
undertake an evaluation of such alternative or issues by means of 
special studies, public inquiry proceedings, or other appropriate 
means.

III. Section-by-Section Analysis

    Subpart D revisions. Part 3001, subpart D, of title 39, Code of 
Federal Regulations, which deals with rules applicable to requests for 
changes in the nature of postal services, is amended and establishes 
new procedural rules applicable to Postal Service requests for advisory 
opinions on proposed changes in the nature of postal services.
    Section 3001.71 replaces current section 3001.71. New section 
3001.71 makes the rules in subpart D applicable to requests by the 
Postal Service pursuant to 39 U.S.C. 3661 for Commission advisory 
opinions on proposed changes in the nature of postal services.
    Section 3001.72 is a new section that provides that, in the absence 
of a determination of good cause, advisory opinions in nature of 
service proceedings will be issued not later than 90 days following the 
filing of the Postal Service's request for an advisory opinion. Section 
3001.72 also provides for Commission authorization of special studies 
of issues arising out of nature of service proceedings.
    Section 3001.73 is a new section that provides for the use of 
calendar days in computing time periods under subpart D.
    Section 3001.74 replaces section 3001.75. New section 3001.74 
requires the Postal Service to serve copies of formal requests for 
advisory opinions on intervenors and the officer of the Commission 
designated to represent the interests of the general public.
    Section 3001.75 is a new section that establishes shortened 
deadlines for the filing of motions and answers to motions in N-Cases. 
This section also establishes a procedure for filing motions to be 
excused from answering discovery requests and a procedure for 
requesting leave to file surrebuttal.
    Section 3001.80 is a new section that describes the contents of the 
notice and scheduling order to be issued by the Commission after the 
Postal Service files a request for an advisory opinion on proposed 
changes in the nature of postal services.
    Section 3001.81 is a new section containing pre-filing 
requirements. New section 3001.81 requires the Postal Service to engage 
in discussions with potentially affected participants before filing a 
request for an advisory opinion on proposed changes in the nature of 
postal services.
    Section 3001.82 replaces section 3001.72. New section 3001.82 
establishes requirements for the filing of Postal Service requests for 
advisory opinions in N-Cases.
    Section 3001.83 replaces section 3001.74. New section 3001.83 
establishes requirements for the contents of requests for advisory 
opinions.
    Section 3001.84 replaces section 3001.73. New section 3001.84 
establishes requirements for the filing by the Postal Service of 
prepared direct testimony with requests for advisory opinions.
    Sections 3001.85 through 3001.89 are new sections that establish 
expedited discovery procedures in N-Cases.
    Section 3001.90 is a new section governing the filing of 
participant rebuttal cases that respond to the Postal Service's direct 
case.
    Section 3001.91 is a new section governing the filing of 
surrebuttal testimony that responds to rebuttal testimony filed under 
section 3001.90.
    Section 3001.92 is a new section that prescribes procedures for 
hearings on the record in nature of service proceedings that differ 
from the procedures prescribed in section 3001.30.
    Section 3001.93 is a new section that establishes page limitations 
for initial and reply briefs and provides for expedited briefing in 
nature of service proceedings.
    Appendix A to Part 3001, subpart D, Pro Forma N-Case Procedural 
Schedule is a new appendix to N-Case rules that provides a template for 
use in establishing procedural schedules in individual cases.
    Conforming revisions to other subparts. Section 3001.3 is amended 
to exclude specific subpart A rules of practice from use in N-Cases.
    Section 3001.5(h) is amended to eliminate the distinction between 
participants and limited participators in N-Cases.
    Section 3001.15 is amended to reflect that the computation of time 
periods of 5 days or less in proceedings conducted under subpart D 
includes Saturdays, Sundays, and federal holidays.
    Section 3001.17 is amended to require the inclusion in notices of 
nature of service proceedings conducted under 39 CFR Part 3001, subpart 
D of the procedural schedule required by 39 CFR 3001.80.
    Section 3001.20(a) is amended to preclude participation in N-Cases 
as a limited participator.
    Section 3001.20(d) is amended to shorten the time period for filing 
oppositions to notices of intervention that are submitted in nature of 
service proceedings conducted under 39 CFR Part 3001, subpart D.
    Section 3001.31(e) is amended to shorten the period for designating 
evidence received in other Commission proceedings for entry into the N-
Case record. The amended subsection also shortens the period for 
objecting to designations.
    Section 3001.31(k)(4) is amended to shorten the time periods for 
requesting entry into an N-Case record of evidence received in another 
Commission proceeding and for expending responses to requests made 
pursuant to this section.

IV. Conclusion

    The Commission seeks comments on its proposed rules applicable to 
requests by the Postal Service for changes in the nature of postal 
services.\9\
---------------------------------------------------------------------------

    \9\ [Reserved]
---------------------------------------------------------------------------

V. Ordering Paragraphs

    It is ordered:
    1. Comments on proposed part 3001, subpart D of title 39, Code of 
Federal Regulations, are due 45 days after publication in the Federal 
Register.
    2. Reply comments are due 75 days after publication in the Federal 
Register.
    3. Patricia A. Gallagher, previously designated to represent the 
interests of the general public in this docket, will continue in that 
capacity.
    4. The Secretary shall arrange for publication of this notice in 
the Federal Register.

[[Page 35820]]

Appendix to Order No. 1738--Initial and Reply Comments

Initial Comments

Comments of National Newspaper Association Witness on Proposed Rules 
for Nature of Service Proceedings, June 8, 2012 (NNA Comments)
Letter from Senator Tom Carper to the PRC, June 15, 2012 (Carper 
Comments)
Comments of David B. Popkin, June 18, 2012 (Popkin Comments)
Comments of the Public Representative in Response to Order No. 1309, 
June 18, 2012 (Public Representative Comments)
United States Postal Service Initial Comments, June 18, 2012 (Postal 
Service Comments)
Valpak Direct Marketing Systems, Inc. and Valpak Dealers' 
Association, Inc. Comments on Advance Notice of Proposed Rulemaking, 
June 18, 2012 (Valpak Comments)
APWU Initial Response to Advance Notice of Proposed Rulemaking on 
Modern Rules of Procedure For Nature of Service Cases Under 39 
U.S.C. 3661, June 19, 2012 (APWU Comments) \10\
---------------------------------------------------------------------------

    \10\ Accompanying the APWU Comments was a Motion for Late 
Acceptance of APWU Initial Response to Advance Notice of Proposed 
Rulemaking on Modern Rules of Procedure for Nature of Service Cases 
Under 39 U.S.C. 3661, June 19, 2012. The motion is granted.
---------------------------------------------------------------------------

    Comments of Mark Jamison, June 25, 2012 (Jamison Comments) \11\
---------------------------------------------------------------------------

    \11\ Accompanying the Jamison Comments was a Motion for Late 
Acceptance of Mark Jamison Comments to Advance Notice of Proposed 
Rulemaking on Modern Rules of Procedure for Nature of Service Cases 
Under 39 U.S.C. 3661, June 25, 2012. The motion is granted.
---------------------------------------------------------------------------

Reply Comments

Reply Comments of the Public Representative, July 17, 2012 (Public 
Representative Reply Comments)
United States Postal Service Reply Comments, July 17, 2012 (Postal 
Service Reply Comments)
Valpak Direct Marketing Systems, Inc. and Valpak Dealers' 
Association, Inc. Reply Comments on Advance Notice of Proposed 
Rulemaking, July 17, 2012 (Valpak Reply Comments)
APWU Reply Comments to Advance Notice of Proposed Rulemaking on 
Modern Rules of Procedure for Nature Of Service Cases Under 39 
U.S.C. 3661 [Errata], July 18, 2012 (APWU Reply Comments) \12\
---------------------------------------------------------------------------

    \12\ These reply comments were filed on July 18, 2012, to 
correct a number of typographical errors contained in reply comments 
filed the day before. See Notice of Errata APWU Reply Comments to 
Advance Notice of Proposed Rulemaking on Modern Rules of Procedure 
for Nature of Service Cases Under 39 U.S.C. 3661, July 18, 2012. The 
corrected July 18, 2012 APWU Reply Comments are hereby accepted for 
filing.
---------------------------------------------------------------------------

List of Subjects in 39 CFR Part 3001

    Administrative practice and procedure, Freedom of information, 
Postal Service, Sunshine Act.

    For the reasons discussed in the preamble, the Commission proposes 
to amend chapter III of title 39 of the Code of Federal Regulations as 
follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 3001 continues to read as follows:

    Authority: 39 U.S.C. 404(d); 503; 504; 3661.

Subpart A--Rules of General Applicability

0
2. Revise Sec.  3001.3 to read as follows:


Sec.  3001.3  Scope of rules.

    Except as otherwise provided in Sec.  3001.71 of this chapter, the 
rules in this part are applicable to proceedings before the Postal 
Regulatory Commission under the Act, including those which involve a 
hearing on the record before the Commission or its designated presiding 
officer and, as specified in part 3005 of this chapter to the 
procedures for compelling the production of information by the Postal 
Service. They do not preclude the informal disposition of any matters 
coming before the Commission not required by statute to be determined 
upon notice and hearing.
0
3. In Sec.  3001.5, revise paragraph (h) to read as follows:


Sec.  3001.5  Definitions.

* * * * *
    (h) Participant means any party and the officer of the Commission 
who is designated to represent the interests of the general public. In 
a proceeding that is not conducted under subpart D of this part, for 
purposes of Sec.  3001.11(e), Sec. Sec.  3001.12, 3001.21, 3001.23, 
3001.24, 3001.29, 3001.30, 3001.31, and 3001.32 only, the term 
``participant'' includes persons who are limited participators.
* * * * *
0
4. Revise Sec.  3001.15 to read as follows:


Sec.  3001.15  Computation of time.

    Except as otherwise provided by law, in computing any period of 
time prescribed or allowed by this part, or by any notice, order, rule 
or regulation of the Commission or a presiding officer, the day of the 
act, event, or default after which the designated period of time begins 
to run is not to be included. The last day of the period so computed is 
to be included unless it is a Saturday, Sunday, or federal holiday for 
the Commission, in which event the period runs until the end of the 
next day which is next day which is neither a Saturday, Sunday, nor a 
federal holiday. Except in proceedings conducted under subpart D of 
this part, in computing a period of time which is 5 days or less, all 
Saturdays, Sundays, and federal holidays observed by the Commission are 
to be excluded.
0
5. In Sec.  3001.17, redesignate paragraph (c)(5) as paragraph (c)(6) 
and add new paragraph (c)(5) to read as follows:


Sec.  3001.17  Notice of proceeding.

* * * * *
    (c) * * *
    (5) In proceedings under subpart D of this part involving Postal 
Service requests for issuance of an advisory opinion, the notice issued 
under Sec.  3001.17 shall include the procedural schedule provided for 
under Sec.  3001.80 of this chapter; and
* * * * *
0
6. In Sec.  3001.20, revise paragraph (d) to read as follows:


Sec.  3001.20  Formal intervention.

* * * * *
    (d) Oppositions.
    (1) Except as otherwise provided in paragraph (d)(2) of this 
section, oppositions to notices of intervention may be filed by any 
participant in the proceeding no later than 10 days after the notice of 
intervention is filed.
    (2) Oppositions to notices of interventions in proceedings 
conducted under subpart D of this part may be filed by any participant 
in the proceeding no later than 3 days after the notice of intervention 
is filed.
    (3) Pending Commission action, an opposition to intervention shall 
delay on a day-for-day basis, the date for responses to discovery 
requests filed by that intervenor.
* * * * *
0
7. In Sec.  3001.20a, revise the introductory text and republish 
paragraph (a) to read as follows:


Sec.  3001.20a  Limited participation by persons not parties.

    Except for cases noticed for a proceeding under subpart D of this 
part, any person may, notwithstanding the provisions of Sec.  3001.20, 
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:
    (a) Form of intervention. Notices of intervention as a limited 
participator shall be in writing, shall set forth the nature and extent 
of the intervenor's interest in the proceeding, and shall conform to 
the requirements of Sec. Sec.  3001.9 through 3001.12.
* * * * *
0
8. In Sec.  3001.31, revise paragraphs (e) and (k)(4) to read as 
follows:


Sec.  3001.31  Evidence.

* * * * *

[[Page 35821]]

    (e) Designation of evidence from other Commission dockets. (1) 
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.
    (2) In proceedings conducted under subpart D of this part, these 
requests must be made at least 6 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 3 days. 
Oppositions to requests for counter-designations are due within 2 days.
    (3) In all other proceedings subject to this section, these 
requests must, in the absence of extraordinary circumstances, 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 7 days.
    (4) In all proceedings subject to this section, the moving 
participant must submit two copies of the identified material to the 
Secretary at the time requests for designations and counter-
designations are made.
* * * * *
    (k) * * *
    (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:
    (i) No later than 3 days after a request is made under paragraph 
(e)(2) of this section; or
    (ii) No later than 14 days after a request is made under paragraph 
(e)(3) of this section.
0
10. Revise Subpart D of part 3001 to read as follows:

Subpart D--Rules Applicable to Requests for Changes in the Nature 
of Postal Services Requests for Changes in the Nature of Postal 
Services

Sec.
3001.71 Applicability.
3001.72 Advisory opinion and special studies.
3001.73 Computation of time.
3001.74 Service by the Postal Service.
3001.75 Motions.
3001.76-3001.79 [Reserved]
3001.80 Procedural schedule.
3001.81 Pre-filing requirements.
3001.82 Filing of formal requests.
3001.83 Contents of formal requests.
3001.84 Filing of prepared direct evidence.
3001.85 Mandatory technical conference.
3001.86 Discovery--in general.
3001.87 Interrogatories.
3001.88 Production of documents.
3001.89 Admissions.
3001.90 Rebuttal testimony.
3001.91 Surrebuttal testimony.
3001.92 Hearings.
3001.93 Initial and reply briefs.
Appendix A to Subpart D of Part 3001--Pro Forma N-Case Procedural 
Schedule


Sec.  3001.71  Applicability.

    The rules in this subpart govern the procedure with regard to 
proposals of the Postal Service pursuant to 39 U.S.C. 3661 requesting 
from the Commission an advisory opinion on changes in the nature of 
postal services that will generally affect service on a nationwide or 
substantially nationwide basis. The Rules of General Applicability in 
subpart A of this part are also applicable to proceedings conducted 
pursuant to this subpart except that Sec.  3001.20a (limited 
participation by persons not parties); Sec.  3001.21 (Motions); Sec.  
3001.25 (Discovery--general policy); Sec.  3001.26 (Interrogatories for 
purposes of discovery); Sec.  3001.27 (Requests for production of 
documents or things for the purpose of discovery); Sec.  3001.30 
(Hearings); Sec.  3001.33 (Depositions); and Sec.  3001.34 (Briefs) do 
not apply in proceedings conducted under this subpart.


Sec.  3001.72  Advisory opinion and special studies.

    (a) Issuance of opinion. In the absence of a determination of good 
cause for extension, the Commission shall issue an advisory opinion in 
proceedings conducted under this subpart not later than 90 days 
following the filing of the Postal Service's request for an advisory 
opinion.
    (b) Special studies. Advisory opinions shall address the specific 
changes proposed by the Postal Service in the nature of postal 
services. If, in any proceeding, alternatives or related issues of 
significant importance arise, the Commission may, in its discretion, 
undertake an evaluation of such alternative or issues by means of 
special studies, public inquiry proceedings, or other appropriate 
means.


Sec.  3001.73  Computation of time.

    In computing any period of time prescribed or allowed by this 
subpart, the term ``day'' means a calendar day unless explicitly 
specified otherwise. The last day of the period so computed is to be 
included unless it is a Saturday, Sunday, or federal holiday for the 
Commission, in which event the period runs until the end of the next 
day which is neither a Saturday, Sunday, or federal holiday. A part-day 
holiday shall be considered as other days and not as a federal holiday.


Sec.  3001.74  Service by the Postal Service.

    By filing its request electronically with the Commission, the 
Postal Service is deemed to have effectively served copies of its 
formal request and its prepared direct evidence upon those persons, 
including the officer of the Commission, who participated in the pre-
filing conference held under Sec.  3001.81. The Postal Service shall be 
required to serve hard copies of its formal request and prepared direct 
evidence only upon those persons who have notified the Postal Service, 
in writing, during the pre-filing conference(s), that they do not have 
access to the Commission's Web site.


Sec.  3001.75  Motions.

    (a) In general. (1) An application for an order or ruling not 
otherwise specifically provided for in this subpart shall be made by 
motion. A motion shall set forth with particularity the ruling or 
relief sought, the grounds and basis therefor, and the statutory or 
other authority relied upon, and shall be filed with the Secretary and 
served pursuant to the provisions of Sec. Sec.  3001.9 through 3001.12 
of this chapter. A motion to dismiss proceedings or any other motion 
that involves a final determination of the proceeding, any motion under 
Sec.  3001.91 or a motion that seeks to extend the deadline for 
issuance of an advisory opinion shall be addressed to the Commission. 
After a presiding officer is designated in a proceeding, all other 
motions in that proceeding, except those filed under part 3007 of this 
chapter, shall be addressed to the presiding officer.
    (2) Within 5 days after a motion is filed, or such other period as 
the Commission or presiding officer in any proceeding under this 
subpart may establish, any participant to the proceeding may file and 
serve an answer in support of or in opposition to the motion pursuant 
to Sec. Sec.  3001.9 to 3001.12 of this chapter. Such an answer shall 
state with specificity 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.
    (b) Motions to be excused from answering discovery requests. (1) A 
motion to be excused from answering discovery requests shall be filed 
with

[[Page 35822]]

the Commission in conformance with this section within 3 days of the 
filing of the interrogatory, request for production, or request for 
admissions to which the motion is directed. If a motion to be excused 
from answering is made part of an interrogatory, request for 
production, or request for admissions, the part to which objection is 
made shall be clearly identified. Claims of privilege shall identify 
the specific evidentiary privilege asserted and state the reasons for 
its applicability. Claims of undue burden shall state with 
particularity the effort that would be required to answer or respond to 
the request, providing estimates of costs and workhours required, to 
the extent possible.
    (2) An answer to a motion to be excused from answering a discovery 
request shall be filed within 2 days of the filing of the motion in 
conformance with Sec.  3001.75. The text of the discovery request and 
any answer previously provided by the Postal Service shall be included 
as an attachment to the answer.
    (3) Unless the Commission or the presiding officer grants the 
motion to be excused from answering, the Postal Service shall answer 
the interrogatory, production request, or request for admission. 
Answers shall be filed in conformance with Sec. Sec.  3001.9 through 
3001.12 of this chapter within 3 days of the date on which a motion to 
be excused from answering is denied.
    (4) The Commission or the presiding officer may impose such terms 
and conditions as are just and may, for good cause, issue a protective 
order as provided in Sec.  3001.26(g) of this chapter, including an 
order limiting or conditioning interrogatories, requests for 
production, and requests for admissions as justice requires to protect 
the Postal Service from undue annoyance, embarrassment, oppression, or 
expense.
    (c) Motions to strike. Motions to strike are requests for 
extraordinary relief and are not substitutes for briefs or rebuttal 
evidence in a proceeding. A motion to strike testimony or exhibit 
materials must be submitted in writing at least 3 days before the 
scheduled appearance of a witness, unless good cause is shown. 
Responses to motions to strike are due within 2 days.
    (d) Motions for leave to file surrebuttal testimony. Motions for 
leave to file surrebuttal testimony submitted pursuant to Sec.  3001.91 
and any answers thereto must be filed and served on or before the dates 
provided in the procedural schedule established by the Commission.


Sec. Sec.  3001.76-3001.79  [Reserved]


Sec.  3001.80  Procedural schedule.

    (a) Notice. Subject to paragraph (b) of this section, the 
Commission shall include in the notice of proceeding issued under Sec.  
3001.17 of this chapter a procedural schedule based upon the pro forma 
schedule set forth in Appendix A of this part. The procedural schedule 
shall include:
    (1) A deadline for notices of interventions;
    (2) The date(s) for the mandatory technical conference between the 
Postal Service, Commission staff, and interested parties;
    (3) The deadline for discovery on the Postal Service's direct case;
    (4) The deadline for responses to participant discovery on the 
Postal Service's case;
    (5) The deadline for participants to confirm their intent to file a 
rebuttal case;
    (6) The date for filing participant rebuttal testimony, if any;
    (7) The dates for filing motions for leave to file surrebuttal 
testimony and answers thereto;
    (8) The date for filing surrebuttal, if any;
    (9) The date(s) for hearings on the Postal Service's direct case, 
rebuttal testimony, and surrebuttal testimony, if any;
    (10) The date for filing initial briefs;
    (11) The date for filing reply briefs; and
    (12) A deadline for issuance of an advisory opinion which is 90 
days from the date of filing.
    (b) Changes for good cause. These dates are subject to change for 
good cause only.
    (c) Incomplete request. If at any time the Commission determines 
that the Postal Service's request is incomplete or that changes made 
subsequent to its filing significantly modify the request, the 
Commission may extend the deadlines established or take any other 
action as justice may require.


Sec.  3001.81  Pre-filing requirements.

    (a) Pre-filing conference required. Prior to the Postal Service 
filing a request that the Commission issue an advisory opinion on a 
proposed change in the nature of postal services subject to the 
procedures established in this subpart, the Postal Service shall 
conduct one or more pre-filing conference(s) with interested persons in 
the proceeding.
    (b) Purpose. The purpose of a pre-filing conference under this 
section is to expedite consideration of the Postal Service's request 
for the issuance of advisory opinions by informing interested persons 
of the Postal Service's proposal; by providing an opportunity for 
interested persons to give feedback to the Postal Service that can be 
used by the Postal Service to modify or refine its proposal before it 
is filed at the Commission; and by identifying relevant issues and 
information needed to address those issues during proceedings at the 
Commission.
    (c) Notice. The Postal Service shall file with the Commission a 
notice of its intent to conduct any pre-filing conference(s) at least 
10 days before the first scheduled conference. The notice filed by the 
Postal Service shall include a schedule of proposed date(s) and 
location(s) for the conference(s). Upon receipt of such notice, the 
Commission shall issue a notice of pre-filing conference(s), which 
shall be published in the Federal Register and appoint a Public 
Representative.
    (d) Nature of conferences. Discussions during the pre-filing 
conference(s) under this section shall be informal and off the record. 
No formal record will be created during a pre-filing conference.
    (e) Informal meetings. Interested persons may meet outside the 
context of a pre-filing conference, among themselves or with the Postal 
Service, individually or in groups, to discuss the proposed changes in 
the nature of postal services.


Sec.  3001.82  Filing of formal requests.

    Whenever the Postal Service determines to request that the 
Commission issue an advisory opinion on a proposed change in the nature 
of postal services subject to this subpart, the Postal Service shall 
file with the Commission a formal request for such an opinion in 
accordance with the requirements of Sec. Sec.  3001.9 to 3001.11 and 
Sec.  3001.83. The request shall be filed not less than 90 days before 
the proposed effective date of the change in the nature of postal 
services involved. Within 5 days after the Postal Service has filed a 
formal request for an advisory opinion in accordance with this section, 
the Secretary shall lodge a notice thereof with the director of the 
Federal Register for publication in the Federal Register.


Sec.  3001.83  Contents of formal requests.

    (a) General requirements. A formal request filed under this subpart 
shall include such information and data and such statements of reasons 
and basis as are necessary and appropriate to fully inform the 
Commission and interested persons of the nature, scope, significance, 
and impact of the proposed

[[Page 35823]]

change in the nature of postal services and to show that the change in 
the nature of postal services is in accordance with and conforms to the 
policies established under title 39, United States Code.
    (b) Specific information. A formal request shall include:
    (1) A detailed statement of the present nature of the postal 
services proposed to be changed and the change proposed;
    (2) The proposed effective date for the proposed change in the 
nature of postal services;
    (3) A full and complete statement of the reasons and basis for the 
Postal Service's determination that the proposed change in the nature 
of postal services is in accordance with and conforms to the policies 
of title 39, United States Code;
    (4) A statement that the Postal Service has completed the pre-
filing conference(s) required by Sec.  3001.81, including the time and 
place of each conference and a summary of discussions at the pre-filing 
conference(s);
    (5) The prepared direct evidence required by Sec.  3001.84;
    (6) The name of an institutional witness capable of providing 
information relevant to the Postal Service's proposal that is not 
provided by other Postal Service witnesses; and
    (7) Confirmation that Postal Service witnesses, including its 
institutional witness, will be available for the mandatory technical 
conference provided for in Sec.  3001.85.
    (c) Additional information. The Commission may request additional 
information from the Postal Service concerning a formal request.
    (d) Reliance on prepared direct evidence. The Postal Service may 
incorporate detailed data, information, and statements of reason or 
basis contained in prepared direct evidence submitted under paragraph 
(b)(5) of this section into its formal request by reference to specific 
portions of the prepared direct evidence.


Sec.  3001.84  Filing of prepared direct evidence.

    As part of a formal request for an advisory opinion under this 
subpart, the Postal Service shall file all of the prepared direct 
evidence upon which it proposes to rely in the proceeding on the record 
before the Commission to establish that the proposed change in the 
nature of postal services is in accordance with and conforms to the 
policies of title 39, United States Code. Such prepared direct evidence 
shall be in the form of prepared written testimony and documentary 
exhibits which shall be filed in accordance with Sec.  3001.31 of this 
chapter.


Sec.  3001.85  Mandatory technical conference.

    (a) Date. A date for a mandatory technical conference shall be 
included in the procedural schedule required by Sec.  3001.80. The date 
for this technical conference shall be set based upon the pro forma 
schedule set forth in Appendix A of this subpart. The conference shall 
be held at the offices of the Commission.
    (b) Witnesses. The Postal Service shall make available at the 
technical conference each witness whose prepared direct testimony was 
filed pursuant to Sec.  3001.84.
    (c) Purpose. The purpose of the technical conference is to provide 
an informal, off-the-record opportunity for participants, the officer 
of the Commission representing interests of the general public, and 
Commission staff to clarify technical issues and to identify and 
request information relevant to an evaluation of the nature of changes 
to postal services proposed by the Postal Service.
    (d) Relation to discovery process. Information obtained during the 
mandatory technical conference may be used to discover additional 
relevant information by means of the formal discovery mechanisms 
provided for in Sec. Sec.  3001.85 through 3001.89.
    (e) Record. Information obtained during, or as a result of, the 
mandatory technical conference is not part of the decisional record 
unless admitted under the standards of Sec.  3001.31(a) of this 
chapter.


Sec.  3001.86  Discovery--in general.

    (a) Purpose. The rules in this subpart allow discovery against the 
Postal Service that is reasonably calculated to lead to admissible 
evidence during a proceeding. The notice and scheduling order issued 
pursuant to Sec.  3001.80 shall provide that discovery will be 
scheduled to end at least 3 days prior to the commencement of hearings.
    (b) Informal discovery. The discovery procedures of this section, 
Sec.  3001.85, and Sec. Sec.  3001.87 through 3001.89 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, or by other appropriate means. In 
the interest of reducing motion practice, participants also are 
expected to use informal means to clarify questions and to identify 
portions of discovery requests considered overbroad or burdensome.
    (c) Failure to obey orders or rulings. If the Postal Service fails 
to obey an order of the Commission or ruling of the presiding officer 
to provide or permit discovery pursuant to this section or Sec. Sec.  
3001.85 through 3001.89, the Commission or the presiding officer may 
issue orders or rulings in regard to the failure as are just. These 
orders or rulings may, among other things:
    (1) Direct that certain designated facts are established for the 
purposes of the proceeding;
    (2) Prohibit the Postal Service from introducing certain designated 
matters in evidence; or
    (3) Strike certain evidence, requests, pleadings, or parts thereof.


Sec.  3001.87  Interrogatories.

    (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 in a proceeding may 
propound to the Postal Service 25 written, sequentially numbered 
interrogatories, by witness, requesting non-privileged information 
relevant to the subject matter of the proceeding. An interrogatory with 
subparts that are logically and factually subsumed within and 
necessarily related to the primary question will be counted as one 
interrogatory. The Postal Service shall answer each interrogatory and 
furnish such information as is available. The participant propounding 
the interrogatories shall file them with the Commission in conformance 
with Sec. Sec.  3001.9 through 3001.12 of this chapter. Follow-up 
interrogatories to clarify or elaborate on the answer to an earlier 
discovery request may be filed after the period for intervenor 
discovery on the Postal Service case ends if the interrogatories are 
filed within 7 days of receipt of the answer to the previous 
interrogatory. In extraordinary circumstances, follow-up 
interrogatories may be filed not less than 6 days prior to the filing 
date for the participant's rebuttal testimony.
    (b) Answers. (1) Answers to interrogatories shall be prepared so 
that they can be incorporated into the record as written cross-
examination. Each answer shall begin on a separate page, identify the 
individual responding and the relevant testimony number, if any, the 
participant who propounded the interrogatory, and the number and text 
of the question.
    (2) Each interrogatory shall be answered separately and fully in 
writing by the individual responsible for the answer, unless it is 
objected to, in which event the reasons for objection shall be stated 
in a motion to be excused

[[Page 35824]]

from answering in the manner prescribed by paragraph (c) of this 
section.
    (3) 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.
    (4) Answers filed by the Postal Service shall be filed in 
conformance with Sec. Sec.  3001.9 through 3001.12 of this chapter 
within 7 days of the filing of the interrogatories or within such other 
period as may be fixed by the Commission or presiding officer. Any 
other period fixed by the Commission or presiding officer shall end 
before the conclusion of the hearing.
    (c) Motion to be excused from answering. The Postal Service may, in 
lieu of answering an interrogatory, file a motion pursuant to Sec.  
3001.75(b) to be excused from answering.
    (d) Supplemental answers. The Postal Service has a duty to timely 
amend a prior answer if it obtains information upon the basis of which 
it knows that the answer was incorrect when made or is no longer true. 
The Postal Service 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. 
The Postal Service 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.


Sec.  3001.88  Production of documents.

    (a) Service and contents.
    (1) 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 the Postal Service a request to 
produce and permit the participant making the request, or someone 
acting on behalf of the participant, to inspect and copy any designated 
documents or things that constitute or contain matters, not privileged, 
that are relevant to the subject matter involved in the proceeding and 
that are in the custody or control of the Postal Service.
    (2) 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 items shall file its request with the 
Commission in conformance with Sec. Sec.  3001.9 through 3001.12 of 
this chapter.
    (b) Answers. (1) The Postal Service shall file an answer to a 
request under paragraph (a) of this section with the Commission in 
conformance with Sec. Sec.  3001.9 through 3001.12 of this chapter 
within 5 days after the request is filed, or within such other period 
as may be fixed by the Commission or presiding officer. The answer 
shall state, with respect to each item or category, whether inspection 
will be permitted as requested.
    (2) If the Postal Service objects to an item or category, the 
Postal Service shall state the reasons for objection in a motion to be 
excused from answering as prescribed by paragraph (c) of this section.
    (c) Motions to be excused from answering. The Postal Service may, 
in lieu of answering a request for production, file a motion pursuant 
to Sec.  3001.75(b) to be excused from answering.


Sec.  3001.89  Admissions.

    (a) Service and content. In the interest of expedition, any 
participant may serve upon the Postal Service a written request for the 
admission of any relevant, unprivileged facts, including the 
genuineness of any documents or exhibits to be presented in the 
hearing. The admission shall be for purposes of the pending proceeding 
only. The participant requesting the admission shall file its request 
with the Commission in conformance with Sec. Sec.  3001.9 through 
3001.12 of this chapter.
    (b) Answers. (1) A matter for which admission is requested shall be 
separately set forth in the request and is deemed admitted unless, 
within 7 days after the request is filed, or within such other period 
as may be established by the Commission or presiding officer, the 
Postal Service files a written answer or motion to be excused from 
answering pursuant to paragraph (c) of this section. Postal Service 
answers to requests for admission shall be filed with the Commission in 
conformance with Sec. Sec.  3001.9 through 3001.12 of this chapter.
    (2) If the answer filed by the Postal Service does not admit a 
matter asserted in the participant's request, it must either 
specifically deny the matter or explain in detail why it cannot 
truthfully admit or deny the asserted matter. When good faith requires, 
the Postal Service must admit a portion of the asserted matter and 
either deny or qualify the remaining portion of such asserted matter. 
Lack of knowledge for failing to admit or deny can be invoked only 
after reasonable inquiry if the information already possessed or 
reasonably obtainable is insufficient to enable an admission or denial.
    (3) Grounds for objection to requests for admission must be stated. 
Objections cannot be based solely upon the ground that the request 
presents a genuine issue for trial.
    (c) Motion to be excused from answering. The Postal Service may, in 
lieu of answering a request for admission, file a motion pursuant to 
Sec.  3001.75(b) to be excused from answering.


Sec.  3001.90  Rebuttal testimony.

    (a) Timing. Any participant may file rebuttal testimony on or 
before the date established for that purpose by the procedural schedule 
issued by the Commission pursuant to Sec.  3001.80. Hearing on rebuttal 
testimony shall proceed as set forth in the procedural schedule.
    (b) Limitations. The scope of rebuttal testimony shall be limited 
to material issues relevant to the specific proposal made by the Postal 
Service. Rebuttal testimony shall not propose, or seek to address, 
alternatives to the Postal Service's proposal.
    (c) Intent to file rebuttal testimony. If a participant wishes to 
file rebuttal testimony, it must file a document confirming its intent 
to file rebuttal testimony with the Commission by the date provided in 
the procedural schedule.
    (d) Adjustment of dates. If no participant files a confirmation of 
intent to file rebuttal testimony on or before the date established by 
the procedural schedule issued by the Commission pursuant to Sec.  
3001.80, the Commission may adjust other dates in the procedural 
schedule as it deems to be necessary and appropriate.


Sec.  3001.91  Surrebuttal testimony.

    (a) Scope. Surrebuttal testimony shall be limited to material 
issues relevant to the Postal Service's proposal and to the rebuttal 
testimony which the surrebuttal testimony seeks to address. Testimony 
that exceeds the scope of the Postal Service's proposal or rebuttal 
testimony shall not be permitted.
    (b) Motion for leave to file surrebuttal. A participant who wishes 
to file surrebuttal testimony must obtain prior approval by filing with 
the Commission a motion for leave to file surrebuttal pursuant to Sec.  
3001.75(d) on or before the date provided in the procedural schedule 
established by the Commission. The motion must

[[Page 35825]]

summarize the surrebuttal testimony the participant wishes to file and 
must identify and explain exceptional circumstances that require the 
filing of such testimony. The moving participant bears the burden of 
demonstrating exceptional circumstances that warrant a grant of the 
motion. Answers to such motions may be filed as provided in Sec.  
3001.75(d).
    (c) Deadline for filing surrebuttal authorized by the Commission. 
In the event the Commission grants the motion for leave to file 
surrebuttal testimony, the moving participant must file its proposed 
surrebuttal testimony by the date provided in the procedural schedule 
established pursuant to Sec.  3001.80.
    (d) Adjustment of procedural dates. If no participant files a 
motion for leave to file surrebuttal testimony, or if the Commission 
denies all such motions as may be filed, the remaining dates in the 
procedural schedule may be adjusted by the Commission as it deems to be 
necessary and appropriate.


Sec.  3001.92  Hearings.

    (a) Initiation. Hearings for the purpose of taking evidence shall 
be initiated by the issuance of a notice and scheduling order pursuant 
to Sec.  3001.80.
    (b) Presiding officer. All hearings shall be held before the 
Commission sitting en banc with a duly designated presiding officer.
    (c) Entering of appearances. The Commission or the presiding 
officer before whom the hearing is held will cause to be entered on the 
record all appearances together with a notation showing in whose behalf 
each such appearance has been made.
    (d) Order of procedure. In requests for advisory opinions before 
the Commission, the Postal Service shall be the first participant to 
present its case. Unless otherwise ordered by the Commission, the 
presiding officer shall direct the order of presentation of all other 
participants and issue such other procedural orders as may be necessary 
to assure the orderly and expeditious conclusion of the hearing.
    (e)(1) Presentations by participants. Any participant shall have 
the right in public hearings to present evidence relevant to the Postal 
Service's proposal, cross-examine (limited to testimony adverse to the 
participant conducting the cross-examination), object, move, and argue. 
The participant's presentation shall be in writing and 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.) 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 shall be served in accordance with 
Sec. Sec.  3001.9 through 3001.12 of this chapter no later than 3 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 hard 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 not be admitted into 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 shall be filed 3 or more days before 
the announced appearance of the witness and shall include specific 
references to the subject matter to be examined and page references to 
the relevant direct testimony and exhibits. A participant 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 shall be 
filed at least 2 days (including 1 working day) before the scheduled 
appearance of the witness. They may be filed online or delivered in 
hardcopy form to counsel for the witness, at the discretion of the 
participant. If a participant has obtained permission to receive 
service of documents in hardcopy form, hardcopy notices of intent to 
conduct oral cross-examination of witnesses for that participant shall 
be delivered to counsel for that participant and served 3 or more 
working days before the announced appearance of the witness. Cross-
examination exhibits shall be delivered to counsel for the witness at 
least 2 days (including 1 working day) before the scheduled appearance 
of the witness.
    (f) Limitations on presentation of the evidence. The taking of 
evidence shall proceed with all reasonable diligence and dispatch, and 
to that end, the Commission or the presiding officer may limit 
appropriately:
    (1) The number of witnesses to be heard upon any issue;
    (2) The examination by any participant to specific issues; and
    (3) The cross-examination of a witness to that required for a full 
and true disclosure of the facts necessary for exploration of the 
Postal Service's proposal, disposition of the proceeding, and the 
avoidance of irrelevant, immaterial, or unduly repetitious testimony.
    (g) Motions during hearing. After a hearing has commenced in a 
proceeding, a request may be made by motion to the presiding officer 
for any procedural ruling or relief desired. Such motions shall set 
forth the ruling or relief sought, and state the grounds therefor and 
statutory or other supporting authority. Motions made during hearings 
may be stated orally upon the record, except that the presiding officer 
may require that such motions be reduced to writing and filed 
separately. Any participant shall have the opportunity to answer or 
object to such motions at the time and in the manner directed by the 
presiding officer.
    (h) Rulings on motions. The presiding officer is authorized to rule 
upon any motion not reserved for decision by the Commission. No ruling 
on motions to dismiss, motions that involve or constitute a final 
determination of the proceeding, motions under Sec.  3001.91, or 
motions that seek to extend the deadline for issuance of an advisory 
opinion may be made by the presiding officer. This section shall not 
preclude a presiding officer from referring any motion made in hearing 
to the Commission for ultimate determination.
    (i) Transcript corrections. Corrections to the transcript of a 
hearing shall not be requested except to correct a material

[[Page 35826]]

substantive error in the transcription made at the hearing.


Sec.  3001.93  Initial and reply briefs.

    (a) When filed. At the close of the taking of testimony in any 
proceeding, participants may file initial and reply briefs. The dates 
for filing initial and reply briefs shall be established in the 
procedural schedule issued pursuant to Sec.  3001.80. Such dates may be 
modified by subsequent order issued by the Commission or the presiding 
officer.
    (b) Contents. Each brief filed with the Commission shall be as 
concise as possible and shall include the following in the order 
indicated:
    (1) A subject index with page references, and a list of all cases 
and authorities relied upon, arranged alphabetically, with references 
to the pages where the citation appears;
    (2) A concise statement of the case from the viewpoint of the 
filing participant;
    (3) A clear, concise, and definitive statement of the position of 
the filing participant as to the Postal Service request;
    (4) A discussion of the evidence, reasons, and authorities relied 
upon with precise references to the record and the authorities; and
    (5) Proposed findings and conclusions with appropriate references 
to the record or the prior discussion of the evidence and authorities 
relied upon.
    (c) Length. Initial briefs shall not exceed 14,000 words. Reply 
briefs shall not exceed 7,000 words. Participants shall attest to the 
number of words contained in their brief.
    (d) Incorporation by reference. Briefs before the Commission or a 
presiding officer shall be completely self-contained and shall not 
incorporate by reference any portion of any other brief, pleading, or 
document.
    (e) Excerpts from the record. Testimony and exhibits shall not be 
quoted or included in briefs except for short excerpts pertinent to the 
argument presented.
    (f) Filing and service. Briefs shall be filed in the form and 
manner and served as required by Sec. Sec.  3001.9 to 3001.12 of this 
part.

Appendix A to Subpart D of Part 3001--Pro Forma N-Case Procedural 
Schedule

------------------------------------------------------------------------
         Line                     Action                 Day number
------------------------------------------------------------------------
1.....................  Pre-Filing Consultations    n/a.
                         \1\
2.....................  Commission Order \2\        n/a.
3.....................  Filing of Postal Service    0.
                         Request
4.....................  Commission Notice and       1-3.
                         Order \3\
5.....................  Technical Conference        10.
6.....................  Participant Discovery on    28.
                         Postal Service Case Ends
7.....................  Responses to Participant    35.
                         Discovery on Postal
                         Service Case..
8.....................  Participants Confirm        37 \4\.
                         Intent to File a Rebuttal
                         Case
9.....................  Filing of Rebuttal Cases    42.
                         (if submitted)
10....................  Deadline for Motions for    44 \5\.
                         Leave to File Surrebuttal
11....................  Deadline for Answers to     46.
                         Motions for Surrebuttal
12....................  Filing of Surrebuttal       49 \6\.
                         Cases (if authorized)
13....................  Hearings                    ....................
                        Hearings (with no Rebuttal  42-44.
                         Cases)
                        Hearings (with Rebuttal     49-51.
                         Cases, but no requests
                         for leave to file
                         Surrebuttal Cases)
                        Hearings (with Rebuttal     54-56.
                         Cases and requests for
                         leave to file Surrebuttal
                         Cases)
14....................  Initial Briefs              (7 days after
                                                     conclusion of
                                                     hearings).
15....................  Reply Briefs                (7 days after filing
                                                     of Initial Briefs).
16....................  Target Issuance Date of     90.
                         Advisory Opinion
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\1\ The Postal Service would initiate pre-filing consultations and would
  file a notice with the Commission of such consultations prior to their
  commencement.
\2\ This order would appoint a Public Representative.
\3\ This notice and order would announce the Postal Service request, set
  a deadline for interventions, set a date for a technical conference,
  and establish a procedural schedule.
\4\ If no participant elects to file a rebuttal case, hearings begin on
  Day 42.
\5\ If no surrebuttal cases are requested, hearings begin on Day 49.
\6\ If one or more surrebuttal cases are requested (whether or not
  authorized by the Commission), hearings begin on Day 54.


    By the Commission.
Ruth Ann Abrams,
Acting Secretary.

[FR Doc. 2013-13502 Filed 6-13-13; 8:45 am]
BILLING CODE P