Rules of Practice and Procedure

POSTAL RATE COMMISSION

39 CFR Part 3001

[Docket No. RM91-1]

RIN 3209-AA04, 3209-AA15 and 3211-AA00

Rules of Practice and Procedure

AGENCY: Postal Rate Commission.

ACTION: Notice of proposed rulemaking; public comment period.

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SUMMARY: This serves as notice of, and a request for, comments on

proposed changes to the Commission's rules of practice and procedure

that the Commission is considering for adoption. The proposed rules

evolved out of the Commission's Docket RM91-1 proceeding. Participants

to that proceeding developed specific proposals for improvements to the

Commission's rules of practice. Adoption of these proposed rules is

expected to enhance the efficiency of Commission proceedings and ease

the burdens on participants in Commission proceedings.

DATES: Written comments responding to this document must be submitted

on or before April 4, 1994.

ADDRESSES: Comments should be sent to Charles L. Clapp, Secretary of

the Commission, Suite 300, 1333 H Street NW., Washington, DC 20268-0001

(telephone: 202/789-6840).

FOR FURTHER INFORMATION CONTACT: Stephen Sharfman, Legal Advisor,

Postal Rate Commission, Suite 300, 1333 H Street NW., Washington, DC

20268-0001 (telephone: 202/789-6820).

SUPPLEMENTARY INFORMATION: The Commission's Office of the Consumer

Advocate (OCA) has filed a motion requesting that the Commission

consider a Stipulation and Agreement on proposed changes to the

Commission's rules of practice and procedure. All documents relating to

the RM91-1 proceeding are available for public inspection at the

Commission's H Street offices.

The proposed rule changes resolve some, but not all, of the

outstanding issues in this proceeding. Fifteen participants support

proposed changes to the Commission's Rules of Practice and Procedure,

39 CFR 3001, which would alter the service requirements applicable to

requests for written discovery and the answers thereto; restrict

transcript corrections to material, substantive errors; require limited

participators to respond to discovery requests specifically directed to

testimony they sponsor; alter production specifications relating to

margins, line spacing and choice of typeface; and allow a ten-day grace

period for filing signature pages to interrogatory responses under

specified conditions. Additionally, nine participants support adding a

new rule 10(d), 39 CFR 3001.10(d), which would require that certain

documents be filed in electronic form (on diskettes) within five

working days of their being formally filed in hard copy. Adoption of

these proposed rules is expected to enhance the efficiency of

Commission proceedings and ease the burdens on participants in

Commission proceedings.

Punctuation within the attachment to the Stipulation and Agreement

might be interpreted to propose elimination of certain provisions not

discussed in the motion. It is the understanding of the Commission that

there was no intent to propose changes other than those explained in

the proposed Stipulation and Agreement. To avoid any possible

misunderstandings, the full text of affected subsections, as they would

appear if the changes proposed herein were adopted, are set forth

below. Additionally, to improve clarity, an article has been added to

the next to last sentence in Rule 26(c), 39 CFR 3001.26(c).

One of the signatories to the Stipulation and Agreement, McGraw-

Hill, Inc., also filed a comment noting that the language describing

the service requirements of discovery questions and objections differed

from the language in the rules applicable to service requirements for

discovery answers and compelled answers. Compare for example proposed

rule 25 (a)(c), with rule 25(b)(d). The comment indicates that parties

to the Stipulation intended that the rules for service of discovery

requests, answers, objections, and compelled answers be identical.

Conforming adjustments have not been proposed at this time to allow

interested persons to comment on the specific language submitted in the

Stipulation. Absent comments in opposition submitted in response to

this notice, conforming changes would be made in the final rule to

reflect that, for documents described in rules 25, 26, and 27, special

requests for service will be honored; and the final sentence in

proposed rule 12(b), 39 CFR 3001.12(b) would be changed to read as

follows:

Special requests for service are used for obtaining service of

discovery requests and answers, and any objections and compelled

answers related thereto. Participants may serve special requests for

service on any other participant requesting service of discovery

requests directed to specified witnesses or participants; or answers

provided by specified witnesses or that participant.

Regulatory Evaluation

It has been determined pursuant to 5 U.S.C. 605(b) that these rules

will not have a significant impact on a substantial number of small

entities under the terms of the Regulatory Flexibility Act, 5 U.S.C.

501 et seq. It has also been determined that these rules do not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment pursuant to Executive Order 12612. These rules do

not contain any information collection requirements as defined in the

Paperwork Reduction Act, 44 U.S.C. 3502(4), and consequently the review

provisions of 44 U.S.C. 3507 and the implementing regulations in 5 CFR

part 1320 do not apply.

List of Subjects in 39 CFR Part 3001

Administrative practice and procedure, Postal Service.

For the reasons set out in the preamble, 39 CFR part 3001 is

proposed to be amended as follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

1. The authority citation for 39 CFR part 3001 continues to read as

follows:

Authority: 39 U.S.C. 404(b), 3603, 3622-3624, 3661, 84 Stat.

759-762, 764, 90 Stat. 1303; (5 U.S.C. 553), 80 Stat. 383.

Subpart A--Rules of General Applicability

2. Section 3001.10 would be amended by revising paragraph (a) and

by adding paragraph (d) to read as follows:

Sec. 3001.10 Form and number of copies of documents.

(a) Production. If not printed, documents filed with the Commission

shall be produced on paper of letter size, 8 to 8\1/2\ inches wide by

10\1/2\ to 11 inches long, with left- and right-hand margins not less

than 1 inch and other margins not less than 0.75 inches, except tables,

charts or special documents attached thereto may be larger if required,

provided that they are folded to the size of the document to which they

are attached. The impression shall be on only one side of the paper

unless there are more than ten pages. The text shall be not less than

one and one-half spaced except that footnotes and quotations may be

single spaced. Any typeface not smaller than 12 pt may be used. If the

document is bound, it shall be bound on the left side. Copies of

documents for filing and service may be reproduced by any duplicating

process that produces clear and legible copies.

* * * * *

(d) Electronic filings. (1) All testimony, exhibits, workpapers,

library references, briefs and reply briefs which have been prepared on

a computer or word processor shall be filed as diskettes (or otherwise

electronically transmitted to the Commission) within five business days

of the initial filing of the hard copy.

(2) Diskettes filed pursuant to paragraph (d)(1) of this section

may be provided in any widely-used format. The preferred formats are

IBM-PC compatible diskettes in Word Perfect, Microsoft Word, ASCII

text, Lotus (DOS 3.0 or later version), or DIF format. If these formats

are not used to produce the initial hard copy, diskettes will be

accepted in any format actually used. Documents which have been

generated on a mainframe or minicomputer, for example, shall be

converted to diskettes, if possible. In such cases as these, where a

file translation program must be used to produce a PC-compatible

diskette, reasonable conversion programs will satisfy the requirements

of this section. If a party has generated hard copy of documents

subject to this section on a computer other than a personal computer

and lacks the capability of producing a PC-compatible diskette, the

party must arrange for other means of conveying the information

electronically. Recommended alternatives to the filing of diskettes are

transmission by modem or providing the information on magnetic tape.

(3) If documents are not prepared using electronic media, diskettes

need not be created and filed. A party that generates documents subject

to this section using non-electronic means is to file an affidavit or

declaration so stating within five business days of the initial filing

of the hard copy. The declaration or affidavit may be the statement of

a witness, counsel or an official representative of the participant.

Such an affidavit or declaration need be filed only once during the

course of a proceeding, within five business days of the filing of the

first document subject to this section.

(4) The Commission intends to file within five business days of

their initial issuance in hard copy form diskettes of all documents

issued by the Commission or the Presiding Officer. This includes

Presiding Officer's rulings, Commission orders, notices of inquiry and

other notices and Commission opinions and recommended decisions.

(5) Any changes or revisions to electronically-filed documents

shall be filed on updated diskettes. The updated diskettes are to be

filed within five business days of the initial filing of the hard copy

of the revisions.

3. Section 3001.12 would be amended by revising paragraph (b) to

read as follows:

Sec. 3001.12 Service of documents.

* * * * *

(b) Service by the parties. Every document filed by any person with

the Commission in a proceeding shall be served by the person filing

such document upon the participants in the proceeding individually or

by such groups as may be directed by the Commission or presiding

officer except for discovery requests as governed by Secs. 3001.25 to

3001.27. Special requests relating to discovery must be served

individually upon the party conducting discovery and state the witness

who is the subject of the special request.

* * * * *

4. Section 3001.20a would be amended by revising paragraph (c) to

read as follows:

Sec. 3001.20a Limited participation by persons not parties.

* * * * *

(c) Scope of participation. Subject to the provisions of

Sec. 3001.30(f), limited participators may present evidence which is

relevant to the issues involved in the proceeding and their testimony

shall be subject to cross-examination on the same terms applicable to

that of formal participants. Limited participants may file briefs or

proposed findings pursuant to Secs. 3001.34 and 3001.35, and within 15

days after the release of an intermediate decision, or such other time

as may be fixed by the Commission, they may file a written statement of

their position on the issues. The Commission or the presiding officer

may require limited participators having substantially like interests

and positions to join together for any or all of the above purposes.

Limited participators are not required to respond to discovery requests

under Sec. 3001.25 through Sec. 3001.28 except to the extent that those

requests are directed specifically to testimony which the limited

participators provided in the proceeding; however, limited

participators, particularly those making contentions under 39 U.S.C.

3622(b)(4), are advised that failure to provide relevant and material

information in support of their claims will be taken into account in

determining the weight to be placed on their evidence and arguments.

4. Section 3001.25 would be amended by revising paragraphs (a),

(b), and (c) to read as follows:

Sec. 3001.25 Interrogatories for purpose of discovery.

(a) Service and contents. In the interest of expedition and limited

to information which appears reasonably calculated to lead to the

discovery of admissible evidence, any participant may serve upon any

other participant in a proceeding written interrogatories requesting

nonprivileged information relevant to the subject matter in such

proceeding, to be answered by the participant served, who shall furnish

such information as is available to the participant. A participant

through interrogatories may require any other participant to identify

each person whom the other participant expects to call as a witness at

the hearing and to state the subject matter on which the witness is

expected to testify. The participant serving the interrogatories shall

file a copy thereof with the Secretary pursuant to Sec. 3001.9 and

shall serve a copy upon the Postal Service. Special requests for

service by other participants shall be honored.

(b) Answers. Each interrogatory shall be answered separately and

fully in writing, unless it is objected to, in which event the reasons

for objection shall be stated in the manner prescribed by paragraph (c)

of this section. The party responding to the interrogatories shall

serve the answers on the party who served the interrogatories within 20

days of the service of the interrogatories or within such other period

as may be fixed by the presiding officer, but before the conclusion of

the hearing. The answers are to be signed by the person making them. If

the person responding to the interrogatory is unavailable to sign the

answer when filed, a signature page must be filed within ten days

thereafter with the Commission, but need not be served on participants.

Copies of the answers to interrogatories shall be filed with the

Secretary pursuant to Sec. 3001.9 and shall be served upon other

participants who request them.

(c) Objections. In the interest of expedition, the bases for

objection shall be clearly and fully stated. If objection is made to

part of an interrogatory, the part shall be specified. A participant

claiming privilege shall identify the specific evidentiary privilege

asserted and state the reasons for its applicability. A participant

claiming undue burden shall state with particularity the effort which

would be required to answer the interrogatory, providing estimates of

cost and work hours required, to the extent possible. An interrogatory

otherwise proper is not necessarily objectionable because an answer

would involve an opinion or contention that relates to fact or the

application of law to fact, but the Commission or presiding officer may

order that such an interrogatory need not be answered until a

prehearing conference or other later time. Objections are to be signed

by the attorney making them. The party objecting to interrogatories

shall serve the objections on the party who served the interrogatories

within 10 days of the service of the interrogatories. Copies of

objections to interrogatories shall be filed with the Secretary

pursuant to Sec. 3001.9 and shall be served upon the proponent of the

interrogatory and the Postal Service. Special requests for service by

other participants shall be honored.

* * * * *

6. Section 3001.26 would be amended by revising paragraphs (a) and

(c) to read as follows:

Sec. 3001.26 Requests for production of documents or things for

purpose of discovery.

(a) Service and contents. In the interest of expedition and limited

to information which appears reasonably calculated to lead to the

discovery of admissible evidence, any participant may serve on any

other participant to the proceeding a request to produce and permit the

participant making the request, or someone acting in his/her behalf, to

inspect and copy any designated documents or things which constitute or

contain matters, not privileged, which are relevant to the subject

matter involved in the proceeding and which are in the custody or

control of the participant upon whom the request is served. The request

shall set forth the items to be inspected either by individual item or

category, and describe each item and category with reasonable

particularity, and shall specify a reasonable time, place and manner of

making inspection. The participant requesting the production of

documents or things shall file a copy of the request with the Secretary

pursuant to Sec. 3001.9 and shall serve copies thereof upon the Postal

Service. Special requests for service by other participants shall be

honored.

* * * * *

(c) Objections. In the interest of expedition, the bases for

objection shall be clearly and fully stated. If objection is made to

part of an item or category, the part shall be specified. A participant

claiming privilege shall identify the specific evidentiary privilege

asserted and state the reasons for its applicability. A participant

claiming undue burden shall state with particularity the effort which

would be required to answer the request, providing estimates of cost

and work hours required, to the extent possible. Objections are to be

signed by the attorney making them. The party objecting to a request

shall serve the objection on the party requesting production of

documents or things, upon the Secretary pursuant to Sec. 3001.9 and

upon the Postal Service, within 10 days of the request for production.

Special requests for service by other participants shall be honored.

* * * * *

7. Section 3001.27 would be amended by revising paragraphs (a) and

(c) to read as follows:

Sec. 3001.27 Requests for admissions for purpose of discovery.

(a) Service and content. In the interest of expedition any

participant may serve upon any other participant a written request for

the admission, for purposes of the pending proceeding only, of any

relevant, unprivileged facts, including the genuineness of any

documents or exhibits to be presented in the hearing. The participant

requesting the admission shall file a copy of the request with the

Secretary pursuant to Sec. 3001.9 and shall serve copies thereof upon

the Postal Service. Special requests for service by other participants

shall be honored.

* * * * *

(c) Objections. In the interest of expedition, the bases for

objection shall be clearly and fully stated. If objection is made to

part of an item, the part shall be specified. A participant claiming

privilege shall identify the specific evidentiary privilege asserted

and state the reasons for its applicability. A participant claiming

undue burden shall state with particularity the effort which would be

required to answer the request, providing estimates of cost and work

hours required to the extent possible. Objections are to be signed by

the attorney making them. The party objecting to requests for

admissions shall serve the objections on the party requesting

admissions, upon the Secretary pursuant to Sec. 3001.9 and upon the

Postal Service, within 10 days of the request. Special requests for

service by other participants shall be honored.

* * * * *

8. Section 3001.30 would be amended by adding paragraph (i) to read

as follows:

Sec. 3001.30 Hearings.

* * * * *

(i) Transcript corrections. Corrections to the transcript of a

hearing should not be requested except to correct a material

substantive error in the transcription of oral statements made at the

hearing.

Issued by the Commission on February 15, 1994.

Charles L. Clapp,

Secretary.

[FR Doc. 94-3943 Filed 2-22-94; 8:45 am]

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