[Federal Register Volume 87, Number 60 (Tuesday, March 29, 2022)]
[Notices]
[Pages 18044-18052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06524]
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POSTAL REGULATORY COMMISSION
[Docket No. N2022-1; Order No. 6124]
Service Standard Changes
AGENCY: Postal Regulatory Commission.
ACTION: Notice.
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SUMMARY: The Commission is acknowledging a recently-filed Postal
Service request for an advisory opinion on the service standards for
Retail Ground and Parcel Select Ground. This document invites public
comments on the request and addresses several related procedural steps.
DATES: Notices of intervention are due: April 4, 2022; Live WebEx
Technical Conference: March 31, 2022, at 11:00 a.m., Eastern Daylight
Time, Virtual.
ADDRESSES: Submit notices of intervention electronically via the
Commission's Filing Online system at http://www.prc.gov. Persons
interested in intervening who cannot submit their views electronically
should contact the person identified in the FOR FURTHER INFORMATION
CONTACT: David A. Trissell, General Counsel, at 202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Pre-Filing Issues
III. The Request
IV. Initial Administrative Actions
V. Ordering Paragraphs
I. Introduction
On March 21, 2022, the Postal Service filed a request for an
advisory opinion from the Commission regarding planned changes to the
service standards for Retail Ground (RG) and Parcel Select Ground
(PSG).\1\ RG ``is an economical ground shipping solution for retail
(single-piece) customers for packages, thick envelopes, and tubes
weighing less than 70 pounds and up to 130 inches combined length and
girth that are not required to be sent as First-Class Mail.'' \2\ PSG
is similar to RG but targeted at large- and medium-sized commercial
shippers. Request at 2; Notice at 1 n.2. The Postal Service proposes to
upgrade the service standards for RG and PSG from the current 2- to 8-
day standard to a 2- to 5-day standard. Request at 2.
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\1\ United States Postal Service's Request for an Advisory
Opinion on Changes in the Nature of Postal Services, March 21, 2022
(Request).
\2\ Id. at 2; see also Notice of Pre-Filing Conference, March 4,
2022, at 1 n.1 (Notice).
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The intended effective date of the Postal Service's planned changes
is no earlier than 90 days after the filing of the Request. Id. at 5.
The Request was filed pursuant to 39 U.S.C. 3661 and 39 CFR part 3020.
Before issuing its advisory opinion, the Commission shall accord an
opportunity for a formal, on-the-record hearing pursuant to 5 U.S.C.
556 and 557. 39 U.S.C. 3661(c). This order provides information on the
Postal Service's planned changes, explains and establishes the process
for the on-the-record hearing, and lays out the procedural schedule to
be followed in this case.
II. Pre-Filing Issues
On March 23, 2021, the Postal Service published a 10-year strategic
plan announcing potential changes intended to achieve financial
stability and service excellence.\3\ In furtherance of this plan, on
March 4, 2022, the Postal Service filed a notice of its intent to
conduct a pre-filing conference regarding its proposed changes to the
service standards for RG and PSG. Notice at 1.
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\3\ See United States Postal Service, Delivering for America:
Our Vision and Ten-Year Plan to Achieve Financial Sustainability and
Service Excellence, March 23, 2021, at 3, available at https://about.usps.com/what/strategic-plans/delivering-for-america/assets/USPS_Delivering-For-America.pdf (Postal Service's Strategic Plan).
Further information related to the Postal Service's Strategic Plan
is available at https://about.usps.com/what/strategic-plans/delivering-for-america/.
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On March 8, 2022, the Commission issued Order No. 6115, which
established Docket No. N2022-1 to consider the Postal Service's
proposed changes, notified the public concerning the Postal Service's
pre-filing conference, and appointed a Public Representative.\4\ Due to
the COVID-19 pandemic, the Postal Service held its pre-filing
conference virtually on March
[[Page 18045]]
15, 2022, from 1:00 p.m. to 2:00 p.m. Eastern Daylight Time (EDT). See
Request at 8. The Postal Service certifies that it has made a good
faith effort to address concerns of interested persons about the Postal
Service's proposal raised at the pre-filing conference. See id.
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\4\ Notice and Order Concerning the Postal Service's Pre-Filing
Conference, March 8, 2022 (Order No. 6115).
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III. The Request
A. The Postal Service's Planned Changes
Currently, for end-to-end package service within the contiguous
United States, RG and PSG have a service standard ranging from 2 to 8
days. Id. at 3. The Postal Service plans to upgrade that service
standard to correspond with the 2- to 5-day service standard for First-
Class Package Service (FCPS) considered by the Commission in Docket No.
N2021-2. Id. at 2, 3. The Postal Service asserts that the proposed
change would simplify the operational scheme for processing and
transporting RG and PSG package volume within the contiguous United
States by combining it with FCPS volume. Id. at 3. Table 1 below
compares the current to the new service standards.
[GRAPHIC] [TIFF OMITTED] TN29MR22.000
The Postal Service asserts that the proposed service standards
``are predicated on the planned change to the FCPS service standards
and the concomitant improvement and optimization of the Postal
Service's package processing and surface transportation network and
depends on consolidation with FCPS domestic surface volumes.'' \5\
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\5\ Id. at 4. The Postal Service states that the change to FCPS
has not yet been implemented but would be implemented before or at
the same time as the RG and PSG service standard changes proposed in
this docket. Notice at 2 n.4.
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However, the Postal Service notes that certain packages are not
included in the planned service standards, including RG and PSG
packages sent to or from domestic locations outside the contiguous
United States, packages containing hazardous materials, and live
animals shipped by RG. Id. at 4-5.
B. The Postal Service's Position
The Postal Service states that its fundamental rationale for the
proposed changes is to enhance service to customers sending larger
packages. Id. at 6. It asserts that by consolidating RG and PSG volume
with FCPS volume, it can offer faster service for packages that exceed
the weight and size limitations of FCPS. Id. The Postal Service submits
that the proposed changes will result in further improvement and
rationalization of its portfolio of package products. Id. It notes that
the market for faster, economical ground shipping products has seen
significant growth recently and is expected to continue to grow. Id. at
7.
Additionally, the Postal Service contends that shifting RG and PSG
volume to follow FCPS volume would
[[Page 18046]]
enable the further optimization of its package processing and surface
transportation networks in three ways. Id. First, it asserts that the
added volume would fill existing unused capacity, maximizing surface
transportation utility and value. Id. Second, the Postal Service states
that, by eliminating the current interim processing stops, it can
reduce the overall processing burden while improving speed and
reliability by reducing touch points. Id. Third, it asserts that by
combining multiple sorts, the proposed change would improve volume and
capacity in surface lanes. Id.
Moreover, the Postal Service asserts that the proposed changes will
continue to achieve the broader policies of title 39, United States
Code. See id. at 7-8. The Postal Service discusses how the proposed
changes would continue to satisfy the universal service provisions
appearing in 39 U.S.C. 101, 403, and 3661(a) under the proposed service
standards. See id. The Postal Service also asserts that the proposed
changes would not impair compliance with the policies of 39 U.S.C.
3633, which govern the financial performance of competitive products.
See id. at 8. The Postal Service further asserts that the proposed
changes will not cause any undue or unreasonable discrimination against
any users of the mail. See id.
C. The Postal Service's Direct Case
The Postal Service is required to file its direct case along with
the Request. See 39 CFR 3020.114. The Postal Service's direct case
includes all of the prepared evidence and testimony upon which the
Postal Service proposes to rely on in order to establish that its
proposal accords with and conforms to the policies of title 39, United
States Code. See id. The Postal Service provides the direct testimony
of three witnesses and identifies a fourth individual to serve as its
institutional witness and provide information relevant to the Postal
Service's proposal that is not provided by other Postal Service
witnesses.
[GRAPHIC] [TIFF OMITTED] TN29MR22.001
Additionally, the Postal Service filed five library references, one
of which is available to the public and four of which are designated as
non-public material.
[[Page 18047]]
[GRAPHIC] [TIFF OMITTED] TN29MR22.002
IV. Initial Administrative Actions
A. General Procedures
The procedural rules in 39 CFR part 3020 apply to Docket No. N2022-
1. Before issuing its advisory opinion, the Commission shall accord an
opportunity for a formal, on-the-record hearing pursuant to 5 U.S.C.
556 and 557. 39 U.S.C. 3661(c). The Commission will sit en banc for
Docket No. N2022-1. See 39 CFR 3020.122(b). Due to the COVID-19
pandemic, the Commission is conducting all business, including any
hearing or public meeting for Docket No. N2022-1 virtually and not in
person.
B. Scope
Docket No. N2022-1 is limited in scope to the specific changes
proposed by the Postal Service in its Request. See 39 CFR 3020.102(b).
To the extent that participants raise alternative proposals and present
reasons why those alternatives may be superior to the Postal Service's
proposal, the Commission would interpret such discussion as critiquing
the specific changes proposed by the Postal Service in its Request.\6\
However, the Commission would not evaluate or opine on the merits of
such alternative proposals in its advisory opinion. See Order No. 2080
at 18. Pursuant to its discretion, the Commission may undertake
evaluation of alternatives or other issues raised by participants in
separate proceedings (such as special studies or public inquires). See
39 CFR 3020.102(b). Moreover, any interested person may petition the
Commission to initiate a separate proceeding (such as a rulemaking or
public inquiry) at any time. See 39 CFR 3010.201(b) (initiation of
notice and comment proceedings).
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\6\ See Docket No. RM2012-4, Order Adopting Amended Rules of
Procedure for Nature of Service Proceedings Under 39 U.S.C. 3661,
May 20, 2014, at 18 (Order No. 2080).
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C. Designation of Presiding Officer
Pursuant to 39 CFR 3010.106 and 3020.122(b), the Commission
appoints Chairman Michael Kubayanda to serve as presiding officer in
Docket No. N2022-1, effective immediately. In addition to the authority
delegated to the presiding officer under 39 CFR 3010.106(c), the
Commission expands the presiding officer's authority to allow him to
propound formal discovery requests upon any party, at his discretion.
The numerical limitation on interrogatories appearing in 39 CFR
3020.117(a) shall not apply to the presiding officer. The Commission
also authorizes Chairman Kubayanda to rule on procedural issues such as
motions for late acceptance and discovery-related matters such as
motions to be excused from answering discovery requests. Chairman
Kubayanda shall have authority to issue any ruling in this docket not
otherwise specifically reserved to the Commission by 39 CFR 3020 and
3010.106.
D. Procedural Schedule
The Commission establishes a procedural schedule, which appears
below the signature of this order. See 39 CFR 3010.151, 3020.110; see
also 39 CFR part 3020 Appendix A. These dates may be changed only if
good cause is shown, if the Commission later determines that the
Request is incomplete, if the Commission determines that the Postal
Service has significantly modified the Request, or for other reasons as
determined by the Commission. See 39 CFR 3020.110(b) and (c).
E. How To Access Material Filed in This Proceeding
1. Using the Commission's Website
The public portions of the Postal Service's filing are available
for review on the Commission's website (http://www.prc.gov). The Postal
Service's electronic filing of the Request and prepared direct evidence
effectively serves the persons who participated in the pre-filing
conference. See 39 CFR 3020.104. Other material filed in this
proceeding will be available for review on the Commission's website,
unless the
[[Page 18048]]
information contained therein is subject to an application for non-
public treatment.
2. Using Methods Other Than the Commission's Website
The Postal Service must serve hard copies of its 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 website.'' 39 CFR
3020.104. If you demonstrate that you are unable to effectively use the
Commission's Filing Online system or are unable to access the internet,
then the Secretary of the Commission will serve material filed in
Docket No. N2022-1 upon you via First-Class Mail. See 39 CFR
3010.127(b) and (c). You may request physical service by mailing a
document demonstrating your need to the Office of Secretary and
Administration, Postal Regulatory Commission, 901 New York Avenue NW,
Suite 200, Washington, DC 20268-0001. Service may be delayed due to the
impact of the COVID-19 pandemic. Pursuant to 39 CFR 3010.127(c), the
Secretary shall maintain a service list identifying no more than two
individuals designated for physical service of documents for each party
intervening in this proceeding. Accordingly, each party must ensure
that its listing is accurate and should promptly notify the Secretary
of any errors or changes. See 39 CFR 3010.127(c).
3. Non-Public Material
The Commission's rules on how to file and access non-public
material appear in 39 CFR part 3011. Each individual seeking non-public
access must familiarize themselves with these provisions, including the
rules governing eligibility for access; non-dissemination, use, and
care of the non-public material; sanctions for violations of protective
conditions; and how to terminate or amend access.\7\ Any person seeking
access to non-public material must file a motion with the Commission
containing the information required by 39 CFR 3011.301(b)(1)-(4). Each
motion must attach a description of the protective conditions and a
certification to comply with protective conditions executed by each
person or entity (and each individual working on behalf of the person
or entity) seeking access. 39 CFR 3011.301(b)(5)-(6). To facilitate
compliance with 39 CFR 3011.301(b)(5)-(6), a template Protective
Conditions Statement and Certification to Comply with Protective
Conditions appears below the signature of this order as Attachment 2,
for completion and attachment to a motion for access. See 39 CFR part
3011 Subpart C, Appendix A. Persons seeking access to non-public
material are advised that actual notice provided to the Postal Service
pursuant to 39 CFR 3011.301(b)(4) will expedite resolution of the
motion, particularly if the motion for access is uncontested by the
Postal Service.
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\7\ See 39 CFR 3011.300, 3011.302-304.
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Non-public information must be redacted from filings submitted
through the Commission's website; instead, non-public information must
be filed under seal as required by 39 CFR part 3011 subpart B.
F. How To File Material in This Proceeding
1. Using the Commission's Filing Online System
Except as provided in 39 CFR 3010.120(a), all material filed with
the Commission shall be submitted in electronic format using the Filing
Online system, which is available over the internet through the
Commission's website. The Commission's website accepts filings during
the Commission's regular business hours, which are from 8:00 a.m.
through 4:30 p.m. EDT, except for Saturdays, Sundays, and Federal
holidays. A guide to using the Filing Online system, including how to
create an account, is available at https://www.prc.gov/how-to-participate. If you have questions about how to use the Filing Online
system, please contact the dockets clerk by email at [email protected] or
telephone at (202) 789-6847. Please be advised that the dockets clerk
can only answer procedural questions but may not provide legal advice
or recommendations.
2. Using Methods Other Than the Commission's Filing Online System
Material may be filed using a method other than the Commission's
website only if at least one of the following exceptions applies:
The material cannot reasonably be converted to electronic
format,
The material contains non-public information (see 39 CFR
part 3011),
The filer is unable to effectively use the Commission's
Filing Online system and the document is 10 pages or fewer, or
The Secretary has approved an exception to the
requirements to use the Commission's Filing Online system based on a
showing of good cause. 39 CFR 3010.120(a).
Material subject to these exceptions may be filed by mail to the
Office of Secretary and Administration, Postal Regulatory Commission,
901 New York Avenue NW, Suite 200, Washington, DC 20268-0001. Due to
the agency's virtual status, posting mailed materials to the
Commission's website may be delayed. Accordingly, before mailing
materials, it is strongly recommended that individuals contact the
dockets clerk by email at [email protected] or telephone at (202) 789-
6847.
G. Technical Conference
1. Date and Purpose
A technical conference will be held live via WebEx on March 31,
2022, at 11:00 a.m. EDT.\8\ The technical conference is an informal,
off-the-record opportunity to clarify technical issues as well as to
identify and request information relevant to evaluating the Postal
Service's proposed changes. See 39 CFR 3020.115(c). The technical
conference will be limited to information publicly available in the
Request. Any non-public information, including information in non-
public library references attached to the Request, should not be raised
at the technical conference. At the technical conference, the Postal
Service will make available for questioning its three witnesses whose
direct testimony was filed along with the Request and a fourth
individual to serve as its institutional witness, who will provide
information relevant to the Postal Service's proposal that is not
provided by other Postal Service witnesses. See Request at 10; see also
39 CFR 3020.113(b)(6)-(7), 3020.115(b). The names and topics to which
these four individuals are prepared to address are summarized above in
Section III.C., Table 1, infra.
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\8\ On March 23, 2022, the Commission filed an errata to Order
No. 6124 correcting the date of the technical conference to March
31, 2022. See Notice of Errata, March 23, 2022 (Notice of Errata),
Attachment at 1. The errata also instructs technical conference
registrants to resubmit their registration request if they have not
yet received a response from the Commission, due to a technical
issue on March 23, 2022 that prevented the Commission from receiving
some registration requests. Notice of Errata at 1-2.
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2. How To Livestream the Technical Conference
The technical conference will be broadcast to the public via
livestream, which will allow the public to view and listen to the
technical conference, as it is occurring and after. To view and listen
to the livestream, on or after 11:00 a.m. EDT on March 31, 2022, an
individual must click on the internet link that will be identified on
the Commission's YouTube Channel, which
[[Page 18049]]
is available at https://www.youtube.com/channel/UCbHvK-S8CJFT5yNQe4MkTiQ. Individuals do not have to register in advance to
access the livestream. Please note that the livestream is a broadcast;
therefore, there is a brief delay (several seconds) between the
technical conference being captured on camera and being displayed to
viewers of the livestream. Additionally, please note that clicking on
the livestream link will not allow an individual the opportunity to
question the Postal Service's four witnesses. Details on how to
participate in the live WebEx (and have the opportunity to question the
Postal Service's four witnesses) follow.
3. How To Participate in the Technical Conference
To participate in this live technical conference and have the
opportunity to ask questions of the Postal Service's four witnesses, an
individual need not formally intervene in this docket, but must
register in advance as follows. Each individual seeking to participate
in the live WebEx using an individual device (e.g., a desktop computer,
laptop, tablet, or smart phone) must register by sending an email to
[email protected], with the subject line ``Registration'' by
March 28, 2022. In order to facilitate orderly public participation,
this email shall provide the following information:
Your first and last name;
your email address (to receive the WebEx link);
the name(s) of the Postal Service's witness(es) you would
like to question and/or the topic(s) of your question(s); and
your affiliation (if you are participating in your
capacity as an employee, officer, or member of an entity such as a
corporation, association, or government agency).
The [email protected] email address is established solely
for the exchange of information relating to the logistics of
registering for, and participating in, the technical conference.\9\ No
information related to the substance of the Postal Service's Request
shall be communicated, nor shall any information provided by
participants apart from the list identified above be reviewed or
considered. Only documents filed with the Commission's docket system
will be considered by the Commission. Before the technical conference,
the Commission will email each identified individual a WebEx link, an
explanation of how to connect to the technical conference, and
information regarding the schedule and procedures to be followed.
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\9\ Please refer to the Commission's privacy policy which is
available at https://www.prc.gov/privacy.
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4. Availability of Materials and Recording
To facilitate discussion of the matters to be explored at the
technical conference, the Postal Service shall, if necessary, file with
the Commission any materials not already filed in Docket No. N2022-1
(such as PowerPoint presentations or Excel spreadsheets) that the
Postal Service expects to present at the technical conference by March
29, 2022. Doing so will foster an orderly discussion of the matters
under consideration and facilitate the ability of individuals to access
these materials should technical issues arise for any participants
during the live WebEx. If feasible, the recording will be available on
the Commission's YouTube Channel at https://www.youtube.com/channel/UCbHvK-S8CJFT5yNQe4MkTiQ.
Participants in the WebEx, by participating, consent to such
recording and posting. Information obtained during the technical
conference or as a result of the technical conference is not part of
the decisional record, unless admitted under the standards of 39 CFR
3010.322. See 39 CFR 3020.115(e).
H. How To Intervene (Become a Party to This Proceeding)
To become a party to this proceeding, a person or entity must file
a notice of intervention by April 4, 2022.\10\ This filing must clearly
and concisely state: The nature and extent of the intervenor's interest
in the issues (including the postal services used), the intervenor's
position on the proposed changes in services (to the extent known),
whether or not the intervenor requests a hearing, and whether or not
the intervenor intends to actively participate in the hearing. See 39
CFR 3010.142(b). Page one of this filing shall contain the name and
full mailing address of no more than two persons who are to receive
service, when necessary, of any documents relating to this proceeding.
See id. A party may participate in discovery; file testimony and
evidence; conduct written examination of witnesses; conduct limited
oral cross-examination; file briefs, motions, and objections; and
present argument before the Commission or the presiding officer. See
id. sections 3010.142(a); 3020.122(e). An opposition to a notice of
intervention is due within 3 days after the notice of intervention is
filed. See id. section 3010.142(d)(2).
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\10\ Neither the Public Representative nor the Postal Service
must file a notice of intervention; both are automatically deemed
parties to this proceeding. See 39 CFR 3010.142(a).
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I. Discovery
1. Generally Applicable Discovery Procedures
Discovery requests may be propounded upon filing a notice of
intervention. Discovery that is reasonably calculated to lead to the
admissible evidence is allowed. See 39 CFR 3020.116(a). Each party must
familiarize themselves with the Commission's rules appearing in 39 CFR
part 3020, including the rules for discovery in N-dockets generally and
specific to interrogatories, requests for the production of documents,
and requests for admissions.\11\ No party may propound more than a
total of 25 interrogatories (including both initial and follow-up
interrogatories) without prior approval by the Commission or presiding
officer.\12\
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\11\ See 39 CFR 3020.116-3020.119.
\12\ See 39 CFR 3020.117(a); Order No. 2080 at 42; see also
Docket No. N2021-1, Order Affirming Presiding Officer's Ruling No.
N2021-1/9, May 26, 2021, at 9 (Order No. 5901).
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Each answer to a discovery request is due within 7 days after the
discovery request is filed.\13\ Any motion seeking to be excused from
answering any discovery request is due within 3 days after the
discovery request is filed. See 39 CFR 3020.105(b)(1). Any response to
such motion is due within 2 days after the motion is filed. See id.
section 3020.105(b)(2). The Commission expects parties to make
judicious use of discovery, objections, and motions practice, and
encourages parties to make every effort to confer to resolve disputes
informally before bringing disputes to the Commission to resolve.
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\13\ See 39 CFR 3020.117(b)(4), 3020.118(b)(1), 3020.119(b)(1).
Filing an opposition to a notice of intervention shall not delay
this deadline. See 39 CFR 3010.142(d)(3).
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2. Discovery Deadlines for the Postal Service's Direct Case
All discovery requests regarding the Postal Service's direct case
must be filed by April 18, 2022. All discovery answers by the Postal
Service must be filed by April 25, 2022. The parties are urged to
initiate discovery promptly, rather than to defer filing requests and
answers to the end of the period established by the Commission.
J. Rebuttal Case Deadlines
A rebuttal case is any evidence and testimony offered to disprove
or contradict the evidence and testimony submitted by the Postal
Service. A rebuttal case does not include cross-
[[Page 18050]]
examination of the Postal Service's witnesses or argument submitted via
a brief or statement of position. Any party that intends to file a
rebuttal case must file a notice confirming its intent to do so by
April 27, 2022. Any rebuttal case, consisting of any testimony and all
materials in support of the case, must be filed by May 2, 2022.
K. Surrebuttal Case Deadlines
A surrebuttal case is any evidence and testimony offered to
disprove or contradict the evidence and testimony submitted by the
rebutting party. A surrebuttal case does not include cross-examination
of the rebutting party's witnesses or argument submitted via a brief or
statement of position. Any party that intends to file a surrebuttal
case must obtain the Commission's prior approval and must bear the
burden of demonstrating exceptional circumstances that would warrant
granting the motion. See 39 CFR 3020.121(b). Any motion for leave to
file a surrebuttal case is due May 4, 2022. Any response to such motion
is due May 6, 2022. Any surrebuttal case, consisting of any testimony
and all materials in support of the case, must be filed by May 9, 2022.
L. Hearing Dates
The Commission expects that this case will require no more than one
or two business days for hearing, but reserves three business days out
of an abundance of caution and consistent with the pro forma schedule
set forth in appendix A of 39 CFR part 3020. If no party files a notice
of intent to file a rebuttal case by April 27, 2022, then the hearing
of the Postal Service's direct case shall begin May 2, 2022, with
additional days reserved on May 3, 2022, and May 4, 2022. If any party
files a notice of intent to file a rebuttal case by April 27, 2022 but
no surrebuttal testimony will be presented, then the hearing of the
Postal Service's direct case shall begin May 9, 2022, with additional
days reserved on May 10, 2022, and May 11, 2022. If any party files a
notice of intent to file a rebuttal case by April 27, 2022, and the
Commission approves the presentation of surrebuttal testimony, then the
hearing of the Postal Service's direct case shall begin May 16, 2022,
and the hearing of the surrebuttal case shall end May 18, 2022.\14\
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\14\ The pro forma schedule set forth in appendix A of 39 CFR
part 3020 contemplates this hearing scheduled for days 54-56, which
would be Saturday May 14, 2022 through Monday May 16, 2022. In
accordance with 39 CFR 3020.103, these dates are adjusted to Monday
May 16, 2022 through Wednesday May 18, 2022.
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M. Presentation of Evidence and Testimony
Evidence and testimony shall be in writing and may be accompanied
by a trial brief or legal memoranda. Id. section 3020.122(e)(1).
Whenever possible and particularly for factual or statistical evidence,
written cross-examination will be used in lieu of oral cross-
examination. Id. section 3020.122(e)(2).
Oral cross-examination will be allowed to clarify written cross-
examination and/or to test assumptions, conclusions, or other opinion
evidence. Id. section 3020.122(e)(3). Assuming that no rebuttal case is
filed, any party that intends to conduct oral cross-examination shall
file a notice of intent to do so by April 25, 2022.\15\ The notice must
include an estimate of the amount of time requested for each witness.
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\15\ Consistent with the necessary adjustments made in Docket
Nos. N2021-1 and N2021-2 to conduct a virtual hearing, the
Commission adjusts the timeframe contemplated by 39 CFR
3020.122(e)(3) and instead sets this deadline as 7 days before the
beginning of the virtual hearing (assuming that no rebuttal case is
filed).
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In lieu of submitting hard copy documents to the Commission as
contemplated by 39 CFR 3020.122(e)(2), each party shall file a single
document titled ``Notice of Designations'' containing a list for each
witness that identifies the materials to be designated (without the
responses). The filing party shall arrange its list for each witness in
alphabetical order by the name of the party propounding the
interrogatory followed by numerical order of the interrogatory. For
example:
Designations for Witness One
ABC/USPS-T1-1
ABC/USPS-T1-3
DEF/USPS-T1-1
GHI/USPS-T1-3
JKL/USPS-T1-2
Designations for Witness Two
DEF/USPS-T2-4
GHI/USPS-T2-2
Assuming that no rebuttal case is filed, each party shall file its
Notice of Designations by April 26, 2022.
Assuming that no rebuttal case is filed, on April 29, 2022, the
Postal Service shall file a ``Notice of Designated Materials''
identifying any corrections to the testimony or designated materials
for each witness sponsored by the Postal Service. Attached to that
notice shall be a single Adobe PDF file that contains, in order: The
witness's testimony (with any corrections highlighted); identification
of any library references sponsored by the witness; and the witness's
designated written responses in alphabetical order by the name of the
party propounding the interrogatory followed by numerical order of the
interrogatory (with any corrections to the responses highlighted).
N. Presentation of Argument
1. General Procedures
Any person that has intervened in Docket No. N2022-1 (and thereby
formally became a party to this proceeding) may submit written argument
by filing a brief or a statement of position; they also may request to
present oral argument at the hearing. See 39 CFR 3020.123; see also 39
CFR 3010.142(a). Any person that has not intervened in Docket No.
N2022-1 may submit written argument by filing a statement of position.
See 39 CFR 3020.123(g); see also 39 CFR 3010.142(a).
2. Presentation of Written Argument
A brief is a written document that addresses relevant legal and
evidentiary issues for the Commission to consider and must adhere to
the requirements of 39 CFR 3020.123(a)-(f). A statement of position is
a less formal version of a brief that describes the filer's position on
the Request and the information on the existing record in support of
that position. See 39 CFR 3020.123(g).
a. Briefing Deadlines
Assuming that no rebuttal case is filed, initial briefs are due May
11, 2022, and reply briefs are due May 18, 2022. If any party files a
notice confirming its intent to file a rebuttal case by April 27, 2022,
then the briefing schedule may be revised.
b. Deadline for Statement of Position
Any interested person, including anyone that has not filed a notice
of intervention and become a party to this proceeding, may file a
statement of position. See 39 CFR 3020.123(g); see also 39 CFR
3010.142(a). A statement of position is limited to the existing record
and may not include any new evidentiary material. See 39 CFR
3020.123(g). Filings styled as a brief or comments, conforming with the
content and timing requirements, shall be deemed statements of
positions. Any statement of position is due May 11, 2022.
3. Request To Present Oral Argument
Oral argument has not historically been part of N-cases; the
Commission would only grant a request to present oral argument upon an
appropriate showing of need by the presenting party. See Order No. 2080
at 53. Assuming that no rebuttal case is filed,
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any party may file a request to present oral argument by April 25,
2022.
O. The Commission's Advisory Opinion
Unless there is a determination of good cause for extension, the
Commission shall issue its advisory opinion within 90 days of the
filing of the Request. See 39 CFR 3020.102(a). Therefore, absent a
determination of good cause for extension, the Commission shall issue
its advisory opinion in this proceeding by June 21, 2022.\16\ ``The
opinion shall be in writing and shall include a certification by each
Commissioner agreeing with the opinion that in his [or her] judgment
the opinion conforms to the policies established under [title 39,
United States Code].'' 39 U.S.C. 3661(c). The advisory opinion shall
address the specific changes proposed by the Postal Service in the
nature of postal services. See 39 CFR 3020.102(b).
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\16\ Based upon the pro forma schedule set forth in appendix A
of 39 CFR part 3020, the advisory opinion should be issued on day
90, which would be Sunday June 19, 2022 and the following day,
Monday June 20, 2022 is an observed Federal holiday. Thus, this date
is adjusted to Tuesday June 21, 2022, in accordance with 39 CFR
3020.103.
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P. Public Representative
Pursuant to 39 U.S.C. 3661(c), Joseph K. Press shall continue to
serve as an officer of the Commission (Public Representative) to
represent the interests of the general public in this proceeding. See
Order No. 6115 at 3, 4.
V. Ordering Paragraphs
It is ordered:
1. The procedural schedule for this proceeding is set forth below
the signature of this order.
2. Pursuant to 39 CFR 3010.106 and 3020.122(b), the Commission
appoints Chairman Michael Kubayanda to serve as presiding officer in
Docket No. N2022-1, effective immediately.
3. Chairman Kubayanda is authorized to propound formal discovery
requests upon any party, at his discretion. The numerical limitation on
interrogatories appearing in 39 CFR 3020.117(a) shall not apply to the
Presiding Officer.
4. Chairman Kubayanda is authorized to rule on procedural issues
such as motions for late acceptance and discovery-related matters such
as motions to be excused from answering discovery requests.
5. Chairman Kubayanda is authorized to make other rulings in this
Docket not otherwise specifically reserved to the Commission according
to 39 CFR 3020 and 3010.106.
6. Pursuant to 39 U.S.C. 3661(c), Joseph K. Press shall continue to
serve as an officer of the Commission (Public Representative) to
represent the interests of the general public in this proceeding.
7. The Secretary shall arrange for publication of this order in the
Federal Register.
By the Commission.
Erica A. Barker,
Secretary.
Procedural Schedule for Docket No. N2022-1
[Established by the Commission, March 23, 2022]
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Technical Conference Dates:
Deadline to Email N2022- March 28, 2022.
[email protected] to Register to
Participate in the Live Technical
Conference via WebEx.
Filing of the Postal Service's Materials for March 29, 2022.
the Technical Conference.
Technical Conference (live via WebEx)....... March 31, 2022, at
11:00 a.m. Eastern
Daylight Time.
Intervention Deadline:
Filing of Notice of Intervention............ April 4, 2022.
Discovery Deadlines for the Postal Service's
Direct Case:
Filing of Discovery Requests................ April 18, 2022.
Filing of the Postal Service's Answers to April 25, 2022.
Discovery.
Deadlines in Preparation for Hearing (assuming
no rebuttal case):
Filing of Notice Confirming Intent to Oral April 25, 2022.
Conduct Cross-Examination.
Filing of Request to Present Oral Argument.. April 25, 2022.
Filing of Notice of Designations............ April 26, 2022.
Filing of Notices of Designated Materials... April 29, 2022.
Rebuttal Case Deadlines (if applicable):
Filing of Notice Confirming Intent to File a April 27, 2022.
Rebuttal Case.
Filing of Rebuttal Case..................... May 2, 2022.
Surrebuttal Case Deadlines (if applicable):
Filing of Motion for Leave to File May 4, 2022.
Surrebuttal Case.
Filing of Response to Motion for Leave to May 6, 2022.
File Surrebuttal Case.
Filing of Surrebuttal Case (if authorized).. May 9, 2022.
Hearing Dates:
Hearings (with no Rebuttal Case)............ May 2 to 4, 2022.
Hearings (with Rebuttal Case, but no May 9 to 11, 2022.
authorized Surrebuttal Case).
Hearings (with Rebuttal Case and authorized May 16 to 18, 2022.
Surrebuttal Case).
Briefing Deadlines:
Filing of Initial Briefs (with no Rebuttal May 11, 2022.
Case).
Filing of Reply Briefs (with no Rebuttal May 18, 2022.
Case).
Statement of Position Deadline:
Filing of Statement of Position (with no May 11, 2022.
Rebuttal Case).
Advisory Opinion Deadline:
Filing of Advisory Opinion (absent June 21, 2022.
determination of good cause for extension).
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[[Page 18052]]
[FR Doc. 2022-06524 Filed 3-28-22; 8:45 am]
BILLING CODE 7710-FW-P