Revisions to Rules of Practice; Further Proposed Changes

POSTAL RATE COMMISSION

39 CFR Part 3001

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

Revisions to Rules of Practice; Further Proposed Changes

AGENCY: Postal Rate Commission.

ACTION: Supplementary notice of further proposed rule.

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SUMMARY: This document addresses comments on a previous proposal to

revise the general rules of practice. It proposes adopting the special

rules of practice on a permanent basis and makes several other

improvements. The Commission invites comments on this set of proposals.

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

ADDRESSES: Send correspondence concerning this proposal to Margaret P.

Crenshaw, Secretary, Postal Rate Commission, 1333 H Street NW., Suite

300, Washington, DC 20268-0001.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,

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

20268-0001, 202-789-6820.

SUPPLEMENTARY INFORMATION:

Regulatory History

In order no. 1218 the Commission solicited suggestions from

interested parties on ways to improve the efficiency and effectiveness

of proceedings conducted pursuant to 39 U.S.C. 3624. See 63 FR 46732

(September 2, 1998). The order encouraged comments on any topic covered

in 39 CFR 3001.1-92, with the exception of library references and

confidential information, which were to be addressed in separate

rulemakings. While all the rules of practice and procedure were open

for comment, several areas of particular interest were identified,

based on the Commission's assessment of the rules in operation during

the most recent omnibus rate case, docket no. R97-1.

Specifically, the Commission found that incorporation of all (or

most) of the special rules into the rules of practice and procedure

merited serious consideration

rules of practice and procedure were open

for comment, several areas of particular interest were identified,

based on the Commission's assessment of the rules in operation during

the most recent omnibus rate case, docket no. R97-1.

Specifically, the Commission found that incorporation of all (or

most) of the special rules into the rules of practice and procedure

merited serious consideration. Traditionally, special rules of practice

have been issued for application during omnibus rate cases, but more

recently similar rules have been utilized in classification and

complaint dockets as well. The Commission further indicated that an

assessment of ways to reduce costs inherent in the service of documents

be undertaken. Thus, consideration of the extent to which electronic

filing requirements or options can be added is warranted. Finally, the

Commission noted that the use of surveys and the Postal Service's

filing of pro forma financial data, two recently adopted revisions,

worked reasonably well during the last omnibus rate case.

Five sets of comments suggesting improvements were received. The

comments are available for public inspection in the Commission's docket

section, and can be accessed electronically at www.prc.gov. Generally,

the comments do not oppose the integration of the special rules of

practice into the current rules of practice and procedure, suggest a

mixed

response to the possibility of electronic filing requirements, and

raise the issue of whether certain technical and procedural rules have

outlived their usefulness. To this end, some commenters, particularly

the Postal Service, offer detailed suggestions regarding streamlining

the Commission rules.

Introduction

s of

practice into the current rules of practice and procedure, suggest a

mixed

response to the possibility of electronic filing requirements, and

raise the issue of whether certain technical and procedural rules have

outlived their usefulness. To this end, some commenters, particularly

the Postal Service, offer detailed suggestions regarding streamlining

the Commission rules.

Introduction

This proposed rulemaking focuses on the aforementioned areas of

interest, while also addressing minor updates to reflect internal

Commission changes since the rules were first promulgated. As noted

earlier, recent dockets (docket Nos. RM99-2 and RM98-2) modify

Commission rules concerning confidential information (rules 42 and 42a)

and library references (rule 31(b)), respectively. See order No. 1267

(issued October 8, 1999) and order No. 1273 (issued November 24, 1999).

Accordingly, those rulemakings take precedence over revisions otherwise

merited by integration of the special rules. The changes now proposed,

in sum, have been tested in numerous Commission proceedings and have

proven to be effective and efficient.

The Commission has narrowed the scope of order No. 1218 by limiting

its consideration in this proposed rulemaking to Subpart A-Rules of

General Applicability (rules 1-43). Commission rules of practice and

procedure found in Subparts B through F (rules 51-92), which include

regulations pertaining to the initiation of dockets, such as requests

for changes in rates, fees or the mail classification schedule, will be

addressed in a later rulemaking. Consideration of revisions to rules

51-92 therefore is deferred until that time.

Note: As such, commenters' remarks on the following issues will

be deferred: (1) The elimination of the required production of

``functionalized accrued costs,'' (rule 54); (2) the elimination of

documentation requirements leading to the production of

``unnecessary, little-used library references,'' (rule 54(h)(5));

deration of revisions to rules

51-92 therefore is deferred until that time.

Note: As such, commenters' remarks on the following issues will

be deferred: (1) The elimination of the required production of

``functionalized accrued costs,'' (rule 54); (2) the elimination of

documentation requirements leading to the production of

``unnecessary, little-used library references,'' (rule 54(h)(5));

(3) the elimination of anachronistic technical references and

requirements (as in rule 54(h)(5)(v)(b)); (4) the adjustment of

rules pertaining to limited, expedited proceedings (rules 54 and 64)

to minimize the need for the filing of routine waiver requests; (5)

the amendment of pre-filing requirements in omnibus rate cases to

allow for earlier and improved access to information; and (6) the

amendment of rules 52 and 54 regarding Commission acceptance of

Postal Service formal requests for changes in rates or fees.

In the interest of simplicity, this order first addresses

integration of the special rules, with discussion of electronic filing

and minor updates presented thereafter. In the last section of the

rulemaking, the Commission evaluates miscellaneous commenter

suggestions.

Special Rules

The special rules, originally designed for use in omnibus rate

proceedings (such as docket no. R97-1), recently have been employed in

several classification and complaint dockets. As the special rules are

now more universally applied in Commission proceedings, the Commission

proposes that these rules be incorporated in its rules of practice and

procedure.

The special rules of practice encompass five discrete areas:

evidence, discovery, service, cross-examination and ``general,'' which

in part addresses the use of library references (the subject of a

separate rulemaking). The rules generally provide both detailed

procedures designed for complex omnibus rate cases with numerous

participants, and pleading deadlines, which are more accelerated than

those in the existing rules of practice

ve discrete areas:

evidence, discovery, service, cross-examination and ``general,'' which

in part addresses the use of library references (the subject of a

separate rulemaking). The rules generally provide both detailed

procedures designed for complex omnibus rate cases with numerous

participants, and pleading deadlines, which are more accelerated than

those in the existing rules of practice. The Commission believes that

incorporation of the shortened time periods into the current rules of

practice and procedure is a reasonable action, given that parties

repeatedly have demonstrated an ability to meet the deadlines set in

omnibus rate cases, the Commission's largest and most complex

proceedings. The text of the proposed revisions is presented in the

attachment to this notice and order, and the Commission now describes

the changes it proposes.

Evidence

The special rules related to evidence address the evidentiary case

of participants, exhibits, motions to strike, and designation of

evidence from other Commission dockets. The Commission proposes to

incorporate these rules primarily in current rules 21 (motions), 30

(hearings) and 31 (evidence). To the extent that the special rules

apply to library references, order No. 1273 takes precedence.

Discovery

The special rules related to discovery provide for more abbreviated

pleading periods than the existing rules. Thus, the response time for

interrogatories has been shortened from 20 days to 14 days, answers to

other discovery requests likewise are due in 14 days (rather than 20

days), and compelled responses to discovery requests are due within 7

(rather than 10) days of the date of the order compelling an answer.

Further, the rules of practice will now contain provisions for follow-

up interrogatories and motions to compel discovery

rrogatories has been shortened from 20 days to 14 days, answers to

other discovery requests likewise are due in 14 days (rather than 20

days), and compelled responses to discovery requests are due within 7

(rather than 10) days of the date of the order compelling an answer.

Further, the rules of practice will now contain provisions for follow-

up interrogatories and motions to compel discovery. Finally, the

Commission proposes changing the time period for service of objections

to discovery requests from 10 to 7 days, which, while not currently a

special rule, appropriately reflects the shortened time frame for

discovery.

The Commission has revised and renumbered the current rules

pertaining to discovery (rules 25 through 28) to include introduction

of the Commission's general policy on discovery in rule 25. This rule

includes the provisions of special rule 2-E, which addresses discovery

to obtain information available only from the Postal Service. Special

rule 2-E states that while discovery against a participant is generally

scheduled to end prior to the receipt into evidence of that

participant's direct case, an exception is made when participants

require information available only from the Postal Service. In this

instance, discovery requests are allowed up to 20 days prior to the

filing date for final rebuttal testimony. One commenter suggests that

the Commission clarify this rule to reflect more recent rulings

allegedly limiting its scope. The Commission finds such a revision

unnecessary at this time, and will continue to apply the special rule

as essentially written (and now incorporated in rule 25) on a case-by-

case basis.

Service. The special rules regulating service, as distinct from the

issue of electronic filing, raised only one concern from commenters.

One commenter notes that special rule 3-C, which provides exceptions to

general service requirements for certain documents, was established as

a convenience in response to large service lists in omnibus rate cases

orated in rule 25) on a case-by-

case basis.

Service. The special rules regulating service, as distinct from the

issue of electronic filing, raised only one concern from commenters.

One commenter notes that special rule 3-C, which provides exceptions to

general service requirements for certain documents, was established as

a convenience in response to large service lists in omnibus rate cases.

This commenter suggests that the rule therefore be reserved as a

special rule and employed only in proceedings with a significant number

of participants. The Commission does not view this rule as requiring

such special treatment, and therefore proposes to incorporate it in the

standard rules largely as written. The Commission proposes to add this

and other special rules on service to current rules 10 (form and number

of copies of documents) and 12 (service of documents), with slight

modification made to the text to accommodate current Commission

computer technology.

Cross-examination

The Commission proposes that special rules 4-A and 4-B,

respectively governing written and oral cross-examination, be added to

rule 30(e), presentation by parties.

General

The remaining general special rules address the rules on argument

by parties in a proceeding, new affirmative matter, legal memoranda and

library references, as well as the scope of cross-examination. As

discussed earlier, library references are the subject of a separate

rulemaking. The Commission proposes that the other general special

rules be incorporated in rule 30(e) of the present Commission rules of

practice and procedure.

Electronic Filing

rgument

by parties in a proceeding, new affirmative matter, legal memoranda and

library references, as well as the scope of cross-examination. As

discussed earlier, library references are the subject of a separate

rulemaking. The Commission proposes that the other general special

rules be incorporated in rule 30(e) of the present Commission rules of

practice and procedure.

Electronic Filing

The Commission is very cognizant of current communications and

information technology and has made several efforts to incorporate that

technology into its internal operations. A Postal Rate Commission

website which provides timely notice of docket filings in ongoing

cases, among other functions, has been operational since 1997 and is

marked by continual improvements. In docket No. R97-1, the Commission

permitted participants to file computer diskettes for some filings in

conjunction with a significantly reduced number of required hard copies

of the particular filing. In docket No. MC98-1, the Mailing Online

Service classification case, the Commission proposed an electronic

service experiment for all filed documents. The optional electronic

service experiment was presented as a cost savings option for

participants, with simplified, reduced mailing requirements for hard

copies of documents. Interested intervenors were given the option to

participate either fully or in a more restricted capacity. A number of

intervenors successfully participated in the electronic service

experiment.

Commenters in this docket commend the Commission's efforts to take

advantage of today's technology, particularly citing the convenience of

the PRC website. However, while finding merit in the reduced filing

costs and timely availability of filings associated with electronic

service in a limited Commission proceeding, all commenters note that

hardcopy service retains significant advantages, particularly in larger

omnibus proceedings

mission's efforts to take

advantage of today's technology, particularly citing the convenience of

the PRC website. However, while finding merit in the reduced filing

costs and timely availability of filings associated with electronic

service in a limited Commission proceeding, all commenters note that

hardcopy service retains significant advantages, particularly in larger

omnibus proceedings. In a larger proceeding, the process of downloading

and printing lengthy filed documents from numerous parties may prove to

be an onerous and costly task, with significant, expensive professional

time devoted to review of the internet filings in order to determine

which documents merit printing. One commenter warns of the potential

computer ``traffic jams'' on those days when briefs or testimony are

filed in future cases, as numerous intervenors attempt to access and

download filed documents at the same time. Further, it is implied that

a participant's case may be compromised if he is unable to expend the

required time and resources. More than one commenter highlighted that

not all proceeding participants have joined the ``information

superhighway,'' thus automatically disadvantaging those parties.

In general, commenters advise a cautious approach toward electronic

filing. In fact, one commenter maintains that the Commission should not

move beyond the stage of experimental voluntary electronic filing

without first conducting a cost/benefit analysis of the process. Thus,

while there is some support for experimental voluntary electronic

filing, commenters generally advocate that the Commission retains the

requirement of hard-copy service by participants, at least upon other

parties, while continuing to provide PRC website information on

filings.

An alternate proposal for electronic service, which allegedly

overcomes some of the aforementioned considerations, is offered by one

commenter

for experimental voluntary electronic

filing, commenters generally advocate that the Commission retains the

requirement of hard-copy service by participants, at least upon other

parties, while continuing to provide PRC website information on

filings.

An alternate proposal for electronic service, which allegedly

overcomes some of the aforementioned considerations, is offered by one

commenter. Under the alternate proposal, participants in a particular

case could choose to receive all Office of the Consumer Advocate (OCA)

and Commission documents electronically via the Commission's website,

with the Commission also serving all non-participating intervenors a

hard copy of each participating intervenor's filing. Participants would

be required to file an original and three copies of a filing, plus an

electronic version of the filing. Participants further would be

responsible for serving the opposing party with one hard copy (or, in

the case of the Postal Service, six hard copies). The Commission

otherwise would photocopy and mail the documents.

While trying to keep pace with technology and realize its obvious

benefits to Commission proceedings, the Commission still appreciates

the disadvantages currently associated with exclusive electronic

service, as highlighted by the commenters. In particular, the

Commission is cognizant of the potential difficulties associated with

the review and printing of numerous, lengthy filings that are typical

of an omnibus rate proceeding, and understands that some proceedings of

a limited nature may be more appropriate for application of electronic

service at this stage. Accordingly, the Commission proposes reserving

the option to implement electronic service on a case-by-case basis, by

amending part (e) of rule 12 (service of documents) to read ``[s]ervice

via electronic filing may be available under circumstances prescribed

by the Commission or the presiding officer.''

Miscellaneous Updates of Commission Rules

plication of electronic

service at this stage. Accordingly, the Commission proposes reserving

the option to implement electronic service on a case-by-case basis, by

amending part (e) of rule 12 (service of documents) to read ``[s]ervice

via electronic filing may be available under circumstances prescribed

by the Commission or the presiding officer.''

Miscellaneous Updates of Commission Rules

The Commission proposes that several current rules be updated

primarily to reflect certain institutional changes. Section 4 (or rule

4) amends the manner in which the rules of practice may be cited. Rule

5 revises the definition of ``presiding officer'' and also now includes

a definition of the OCA. Rule 7, which discusses ex parte

communications, has eliminated the reference to an administrative law

judge, as the Commission no longer utilizes administrative law judges,

and has been clarified as applicable to all participants. Rule 9,

filing of documents, is revised to include notification of the

presiding officer by the Commission's Secretary in the event of an

unacceptable filing, and to eliminate such notification to the parties,

except for the sender of the unacceptable document. Rule 12 on the

service of documents has been altered to provide for electronic filing

under certain circumstances. Rule 18, which describes the nature of

proceedings, now indicates that the Commission may, rather than shall,

hold a public hearing if one is requested by a party. Rule 19,

regarding notice of a prehearing conference or hearing, eliminates a

reference to Commission designation of a presiding officer by Federal

Register notice, as designation is a function of the Chairman. That

rule also now reflects Commission practice of providing notice of the

reconvening of a hearing to all participants in a proceeding by issuing

a ruling served on all participants (if necessary), rather than through

publication of such notice in the Federal Register

ce to Commission designation of a presiding officer by Federal

Register notice, as designation is a function of the Chairman. That

rule also now reflects Commission practice of providing notice of the

reconvening of a hearing to all participants in a proceeding by issuing

a ruling served on all participants (if necessary), rather than through

publication of such notice in the Federal Register. Rule 43, which

addresses public attendance at Commission meetings, has substituted the

office of the Secretary for all references to the Office of Public

Information, which no longer exists.

Service on the OCA

Several rules relating to discovery have been revised to include

mandatory service of documents on the OCA. Affected rules include rules

26(a), 26(c), 27(a), 27(c), 28(a) and 28(c). The aforementioned rules

also reflect renumbering to accommodate actions taken in this

rulemaking. Additionally, the distinction between parties and

participants has been applied in rules 7, 12, 25, 26, 27, 28, and 30.

Minor Changes

Some rule changes simply reflect altered numbering within the rule,

or a change in wording to effect a more specific reference. Thus, rule

17--addressing notice of proceeding--includes new renumbering of some

sections. Rules 18 (nature of proceedings), 19 (notice of prehearing

conference or hearing), 20 (formal intervention) and 20a (limited

participation by persons not parties) now specifically cite to

proceeding notice pursuant to section (a) of rule 17, rather than

generally referring to rule 17. Likewise, rules 27(b) and (e) (answers

and orders regarding requests for production of documents or things for

purpose of discovery) and rules 28(b) and (e) (answers and orders

regarding requests for admissions for purpose of discovery) provide for

service of such documents and answers pursuant to Sec. 3001.12(b).

Finally, the Commission proposes substantive changes to rule

31(k)(3)(i), which was the subject of one commenter's remarks and

therefore will be discussed in detail below

ents or things for

purpose of discovery) and rules 28(b) and (e) (answers and orders

regarding requests for admissions for purpose of discovery) provide for

service of such documents and answers pursuant to Sec. 3001.12(b).

Finally, the Commission proposes substantive changes to rule

31(k)(3)(i), which was the subject of one commenter's remarks and

therefore will be discussed in detail below.

Other Suggestions by Commenters

Several commenters have offered detailed suggestions regarding

substantive revisions of the rules of practice and procedure, which

have been carefully considered by the Commission. These suggestions,

accompanied by Commission responses, include:

I. Elimination of Required Production of Hardcopy Listings of Data

Files, Other Computer Information

One commenter suggests that the Commission amend rule 31(k)(3)(i),

which currently appears to require that a hardcopy ``listing of the

input and output data and source codes'' be provided as a foundation

for each computer analysis being offered as evidence. The commenter

asks that the Commission change the foundational requirements of the

rule to require production only of electronic versions of data or

source code, and also to eliminate the provisions which provide for

production of the items upon request. Alternatively, it is suggested

that the Commission not specify the medium of presentation for such

information, allowing the provision only of electronic media

that the Commission change the foundational requirements of the

rule to require production only of electronic versions of data or

source code, and also to eliminate the provisions which provide for

production of the items upon request. Alternatively, it is suggested

that the Commission not specify the medium of presentation for such

information, allowing the provision only of electronic media. In

support of these suggested amendments, the commenter argues that: (1)

Any party who wishes to ``investigate, replicate or validate'' a

computer analysis will likely prefer to load the source code and input

the data on its own computers, a task better-suited for an electronic

version of this information, particularly if the data bases involved

are extensive; and (2) a requirement that data and source code be

provided in hardcopy form is redundant, as almost any party can readily

produce a hardcopy product from an electronic version of the document

in question.

The Commission agrees that the nature of the documents filed under

rule 31(k)(3)(i), in conjunction with current technology and

established practice of recent years, indicate that electronic filing

is the appropriate format for the mandatory submission of the specified

information. However, paper copies of the data files still serve a

useful purpose, particularly to those parties who may not have access

to the ``information superhighway,'' and therefore could be

disadvantaged in a Commission proceeding were the request for provision

of hardcopy documents unavailable. With this in mind, the Commission

proposes that rule 31(k)(3)(i) be modified to require a machine

readable copy of the input and output data, source codes and program

files submitted as the foundation for computer studies or analyses

which are being offered in evidence or relied upon as support for other

evidence

on proceeding were the request for provision

of hardcopy documents unavailable. With this in mind, the Commission

proposes that rule 31(k)(3)(i) be modified to require a machine

readable copy of the input and output data, source codes and program

files submitted as the foundation for computer studies or analyses

which are being offered in evidence or relied upon as support for other

evidence. Hard copies of all data bases and source codes will be deemed

presumptively necessary and furnished upon request, unless the

presumption is overcome by an affirmative showing. The Commission

believes that this revision will facilitate the process of data

production and analysis, as well as fully protect the due process

rights of participants by providing alternative means of access to such

information, without necessarily imposing onerous burdens of production

upon the provider.

II. Streamlining of Rules Pertaining to Intervention and Participation

One commenter proposes that the Commission streamline the rules

concerning party intervention and participation in Commission

proceedings by eliminating rules 20, 20a and 20b. These rules identify

three classes of party intervention and participation, with varying

rights and obligations. Elimination of the rules would allow all

interested parties who intervene to participate on an equal footing. It

is also suggested that the Commission could further streamline its

general rate and classification proceedings by maintaining a list of

parties interested in automatic intervention, with implementation of

the list upon the filing of such a case. In that manner, a more

efficient service of documents upon ``the core of parties who intervene

in Commission proceedings as a matter of course'' could be effectuated.

According to rules 20, 20a and 20b, intervention and participation

by an interested party in a Commission proceeding may range from full

intervention in all aspects of a case to a limited filing on the

party's behalf

ch a case. In that manner, a more

efficient service of documents upon ``the core of parties who intervene

in Commission proceedings as a matter of course'' could be effectuated.

According to rules 20, 20a and 20b, intervention and participation

by an interested party in a Commission proceeding may range from full

intervention in all aspects of a case to a limited filing on the

party's behalf. The rules recognize that intervenors have varying

degrees of interest in issues presented in a particular proceeding, as

well as different amounts of resources to expend. While simplifying the

rules to provide that all interested parties participate ``on a equal

footing'' may appear to promote fairness, in fact, the opposite may

result. Full participation imposes certain obligations on the part of

an intervenor, which may prove to be burdensome and prohibitive,

particularly to those intervenors with limited time and resources. For

these reasons, the Commission declines to revise rules 20, 20a and 20b,

as suggested.

Current Commission practice regarding party intervention requires

only that a notice of intervention in a proceeding be submitted by an

interested party. Late intervenors must file a motion to be allowed

participation in a particular proceeding. This process allows the

Commission to control its docket and, in the case of late intervention,

appropriately assess the merits of intervention at that point of time.

The process also provides notice of parties active in a proceeding (and

their respective degree of activity) to other participants. The

Commission finds no compelling reason to alter these rules to allow for

the automatic intervention of interested parties in Commission

proceedings (particularly omnibus rate cases) beyond the provisions to

this effect, which currently apply to a small number of expedited

proceedings (including market tests and provisional service changes).

III. Limiting of Certain Aspects of Discovery

s. The

Commission finds no compelling reason to alter these rules to allow for

the automatic intervention of interested parties in Commission

proceedings (particularly omnibus rate cases) beyond the provisions to

this effect, which currently apply to a small number of expedited

proceedings (including market tests and provisional service changes).

III. Limiting of Certain Aspects of Discovery

One commenter proposes that the Commission consider imposing

numerical limitations on discovery requests in rate and classification

proceedings in order to more effectively focus discovery efforts,

reduce the parties' burden of participation, encourage the use of

informal avenues of discovery (such as informal technical conferences)

and ultimately improve the efficiency of Commission proceedings.

According to the commenter, the due process rights of parties will not

be compromised by such an imposition. In

support of this proposition, the commenter cites rules 26, 29-37 of the

federal rules of civil procedure, which place a number of limitations

on the discovery process in federal civil proceedings, including the

number of interrogatories (25) a party may serve on any other party.

The Commission must reject the commenter's efforts to limit the

written discovery process, particularly in omnibus rate proceedings.

The Postal Service functions as a national monopoly, with the private

express statute applicable to the vast majority of mail. Mailers thus

are required by law to pay whatever rates are set, and clearly possess

a vested interest in the process of determining these rates. Written

discovery expedites the process of determining and setting fair rates

and fees, allows for a more complete record, and also reduces (but does

not eliminate) the need for oral cross-examination

statute applicable to the vast majority of mail. Mailers thus

are required by law to pay whatever rates are set, and clearly possess

a vested interest in the process of determining these rates. Written

discovery expedites the process of determining and setting fair rates

and fees, allows for a more complete record, and also reduces (but does

not eliminate) the need for oral cross-examination.

Further, the potential for ``prolific'' discovery efforts

complained of by the commenter must be weighed against the protection

of parties' due process rights and the increasingly complex, technical

nature of Commission proceedings (which may be distinguished from

typical federal court cases). Thus, while the Commission does

understand the rationale for the commenter's suggestion, it is

persuaded that the aforementioned considerations advise against

instituting any additional limitations on the discovery process.

IV. Elimination of the Assumption That Witnesses Will Be Subjected to

Oral Cross-examination.

One commenter suggests that the Commission alter the rules of

Practice and Procedure to hold that each party requesting oral cross-

examination be required to demonstrate why written submission is not

sufficient to achieve that party's objective. The commenter notes that

current practice relies heavily on written submissions, and that

limitations on oral cross-examination is consistent with section 556 of

the Administrative Procedure Act, which provides solely for ``such

cross-examination as may be required for a full and true disclosure of

the facts.'' 5 U.S.C. 556(d). It is argued that parties' due process

rights will still be preserved, while imposing a more streamlined,

disciplined approach to discovery. It is conceded that such a change in

the Commission rules may lead to increased motion practice

istrative Procedure Act, which provides solely for ``such

cross-examination as may be required for a full and true disclosure of

the facts.'' 5 U.S.C. 556(d). It is argued that parties' due process

rights will still be preserved, while imposing a more streamlined,

disciplined approach to discovery. It is conceded that such a change in

the Commission rules may lead to increased motion practice.

The Commission views the opportunity for participants to conduct

oral cross-examination of witnesses, particularly in such complex

litigation as is routinely before it, as the hallmark of due process.

The written submission of testimony and subsequent interrogatory

practice, while certainly serving a function, in no way supercede the

purpose of a live hearing on the issues. One need only consider the

problems which arose in docket no. R97-1 regarding certain Postal

Service library references, and the parties' expressed interest in

cross-examination of the sponsoring (but unnamed) witnesses. It is

acknowledged that there have been occasions when a witness has been

summoned for cross-examination, only to do no more than authenticate

his or her pre-filed testimony and interrogatory responses. However,

such occurrences are infrequent, as in practice, counsel normally

ascertain through informal contact with other parties that appearance

of a particular witness is unnecessary. In any event, this

inconvenience is a small price to pay to ensure that each participating

party is accorded a full opportunity to investigate the issues in a

given case, which may be most effectively achieved through the

interplay of cross-examination. Moreover, while the Commission does

grant a certain latitude during cross-examination, it also is mindful

of the purpose of the exercise and applies constraint accordingly, as

provided for in Commission rule 30(f)

ach participating

party is accorded a full opportunity to investigate the issues in a

given case, which may be most effectively achieved through the

interplay of cross-examination. Moreover, while the Commission does

grant a certain latitude during cross-examination, it also is mindful

of the purpose of the exercise and applies constraint accordingly, as

provided for in Commission rule 30(f). For these reasons, as well as

the desire to avoid a possible floodgate of motion practice, the

Commission declines to amend the rules to create a presumption against

oral cross-examination.

V. Elimination of Oral Argument

According to one commenter, Commission rules could be further

streamlined by the elimination or modification of those rules governing

oral argument (rules 36 and 37), such that oral argument is no longer

an available option or is scheduled only in truly extraordinary

circumstances. In docket no. R97-1, there were no requests by parties

for oral argument before the Commission. The commenter suggests that

this circumstance appears to indicate an increased acceptance by the

parties that oral argument is not the most productive use of either the

participants' or the Commission's time. The Commission traditionally

has provided the opportunity for oral argument during its proceedings.

The commenter provides no compelling rationale for the Commission to

depart from this practice. It is true that no party asked for oral

argument in docket no. R97-1. However, such requests routinely have

been made in previous omnibus rate cases. Unlike the commenter, the

Commission does not view the absence of a request for oral argument in

the last omnibus rate case as participant acknowledgement that oral

argument serves a limited purpose. A number of factors, including the

compressed time schedule subsequently imposed in that docket, may have

contributed to participants' foregoing of the opportunity

in previous omnibus rate cases. Unlike the commenter, the

Commission does not view the absence of a request for oral argument in

the last omnibus rate case as participant acknowledgement that oral

argument serves a limited purpose. A number of factors, including the

compressed time schedule subsequently imposed in that docket, may have

contributed to participants' foregoing of the opportunity. In the

absence of adequate cause to eliminate or limit the option of oral

argument, the Commission remains firm in its belief that such requests

should be decided on a case-by-case basis, with no presumption for or

against the conduct of oral argument codified in the Commission's

rules.

VI. Amendment of Rules to Provide for Early Summary Disposition of

Issues in a Proceeding and for Settlement

One commenter has suggested that procedures be established to bring

forth settlements (rather than merely encourage them), and that a

process for summary disposition of issues early in a case be created.

The commenter does not specify particular procedures, but does note

that these recommendations were made to the Commission in an earlier

rulemaking docket (Docket No. RM95-2) which was created to streamline

Commission rules.

As the commenter has noted, the Commission's rules of practice and

procedure do encourage settlement of issues among the parties. The

Commission is unclear as to what procedures would more affirmatively

promote settlement, and the commenter is silent on the matter. Were a

specific process for settlement proposed, the Commission still would be

inclined to direct that the process first be applied in a particular

case to determine its feasibility prior to any promulgation of a rule.

The same may be said of the commenter's suggestion for early summary

disposition of particular issues in a proceeding

ote settlement, and the commenter is silent on the matter. Were a

specific process for settlement proposed, the Commission still would be

inclined to direct that the process first be applied in a particular

case to determine its feasibility prior to any promulgation of a rule.

The same may be said of the commenter's suggestion for early summary

disposition of particular issues in a proceeding. In this instance, the

Commission is compelled to exercise extreme caution, as litigation

practice has demonstrated that issues which have appeared at first

blush to be ``non-controversial'' often have proved to be otherwise.

II. Amendment of the Filing Requirements Associated with Motions to

Accept Late-filed Affidavits

One commenter addresses the late filing of a declaration or

affidavit of a witness in support of an interrogatory response which

could not be attached to the response when it was originally filed.

According to the commenter, these late filings, which consist of a

motion for leave explaining why the

declaration/affidavit is untimely, the declaration/affidavit and the

certificate of service, may be unwarranted in toto, as each witness

eventually adopts his interrogatory responses under oath as written

cross-examination. In an effort to reduce costs and paperwork, the

commenter suggests that the Commission: (a) Encourage parties to file

all such ``make-up'' motions at one particular time; (b) encourage or

require the parties to put the certificate of service and the motion on

the same sheet of paper; or (c) entirely eliminate the affidavit

requirement through adoption of a general rule to the effect that all

interrogatory responses are deemed to be under oath.

Current rule 25 (b) adequately addresses the commenter's concern.

Note: Under the instant proposal, current rule 25, as revised, would

become rule 26. First, rule 25(b) permits the use of a declaration of

accuracy as well as an affidavit

entirely eliminate the affidavit

requirement through adoption of a general rule to the effect that all

interrogatory responses are deemed to be under oath.

Current rule 25 (b) adequately addresses the commenter's concern.

Note: Under the instant proposal, current rule 25, as revised, would

become rule 26. First, rule 25(b) permits the use of a declaration of

accuracy as well as an affidavit. Second, although answers must be

signed by the person making them, if that person is unavailable at the

time the answers are filed, a signature page must be filed within ten

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

Commission, therefore, finds it unnecessary to revise its rules as

suggested by the commenter.

For the reasons discussed above, the Commission proposes to amend

Subpart A of its rules of practice and procedure as set forth below.

Ordering paragraphs. The first ordering paragraph invites

interested persons to submit comments on the proposed revisions no

later than January 21, 2000. The second ordering paragraph directs the

Secretary to cause this order to be published in the Federal Register,

in accordance with all applicable regulations of the Office of the

Federal Register.

Dated: December 21, 1999.

Cyril J. Pittack,

Acting Secretary.

List of Subjects in 39 CFR Part 3001

Administrative practice and procedure, Postal Service.

For the reasons discussed in the preamble, the Commission proposes

to amend 39 CFR part 3001--Rules of Practice and Procedure Subpart A--

Rules of General Applicability as follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

Subpart A--Rules of General Applicability

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

follows:

Authority: 39 U.S.C. 404(b); 3603, 3622-24, 3661, 3662, 3663.

2. Revise Sec. 3001.4 to read as follows:

Sec. 3001.4 Method of citing rules.

rt 3001--Rules of Practice and Procedure Subpart A--

Rules of General Applicability as follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

Subpart A--Rules of General Applicability

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

follows:

Authority: 39 U.S.C. 404(b); 3603, 3622-24, 3661, 3662, 3663.

2. Revise Sec. 3001.4 to read as follows:

Sec. 3001.4 Method of citing rules.

This part shall be referred to as the ``rules of practice.'' Each

section, paragraph, or subparagraph shall include only the numbers and

letters to the right of the decimal point. For example, ``3001.24

Prehearing conferences'' shall be referred to as ``section 24'' or

``rule 24.''

3. Amend Sec. 3001.5 by revising paragraph (e) and adding paragraph

(q) to read as follows:

Sec. 3001.5 Definitions.

* * * * *

(e) Presiding officer means the Chairman of the Commission in

proceedings conducted by the Commission en banc or the Commissioner or

employee of the Commission designated to preside at hearings or

conferences.

* * * * *

(q) Office of the Consumer Advocate or OCA means the officer of the

Commission designated to represent the interests of the general public

in a Commission proceeding.

4. Amend Sec. 3001.7 by revising paragraph (d)(1) to read as

follows:

Sec. 3001.7 Ex parte communications.

* * * * *

(d) Violations of ex parte rules. (1) Upon notice of a

communication knowingly made or knowingly caused to be made by a

participant in violation of paragraph (b) of this section, the

Commission or presiding officer at the hearing may, to the extent

consistent with the interests of justice and the policy of the

underlying statutes, require the participant to show cause why his/her

claim or interest in the proceeding should not be dismissed, denied,

disregarded, or otherwise adversely affected on account of such

violation.

* * * * *

5. Amend Sec. 3001.9 by revising paragraph (b) to read as follows:

Sec. 3001.9 Filing of documents.

* * * * *

istent with the interests of justice and the policy of the

underlying statutes, require the participant to show cause why his/her

claim or interest in the proceeding should not be dismissed, denied,

disregarded, or otherwise adversely affected on account of such

violation.

* * * * *

5. Amend Sec. 3001.9 by revising paragraph (b) to read as follows:

Sec. 3001.9 Filing of documents.

* * * * *

(b) Acceptance for filing. Only such documents as conform to the

requirements of this part and any other applicable rule, regulation or

order of the Commission shall be accepted for filing. Unacceptable

filings will be rejected by the Secretary and will not be included in

the file in the proceeding involved. The Secretary shall notify the

sender of any unacceptable document and the presiding officer in the

proceeding in which such document was tendered that such document was

rejected. Acceptance for filing shall not waive any failure to comply

with the rules, and such failure may be cause for subsequently striking

all or any part of any document.

6. Amend Sec. 3001.10 as follows:

a. Redesignate paragraph (c) as (d),

b. Revise redesignated paragraph (d); and

c. Add new paragraph (c) to read as follows:

Sec. 3001.10 Form and number of copies of documents.

* * * * *

(c) Computer diskette. Participants capable of submitting documents

stored on computer diskettes may use an alternative procedure for

filing documents with the Commission. Provided that the stored document

is a file generated in either Acrobat (pdf), Word, or WordPerfect, in

lieu of the other requirements of section 10 of the rules, a

participant may submit a diskette containing the text of each filing

simultaneously with the filing of one printed original and three hard

copies. Attachments will be accepted in their native format (i.e.,

Excel, Lotus, etc.). Documents must be submitted in Arial 12 point

Font, or such program, format, or font as the presiding officer may

designate to assist with optical character recognition (OCR).

pant may submit a diskette containing the text of each filing

simultaneously with the filing of one printed original and three hard

copies. Attachments will be accepted in their native format (i.e.,

Excel, Lotus, etc.). Documents must be submitted in Arial 12 point

Font, or such program, format, or font as the presiding officer may

designate to assist with optical character recognition (OCR).

(d) Number of copies. Except for correspondence, computer diskette

filing as provided for in paragraph (c) of this section, or as

otherwise permitted by the Commission, the Secretary or the presiding

officer in any proceeding, all persons shall file with the Secretary an

original and 24 fully conformed copies of each document required or

permitted to be filed under this part.

7. Amend Sec. 3001.12 as follows:

a. Revise paragraph (b),

b. Revise paragraph (d), and

c. Revise paragraph (e) to read as follows:

Sec. 3001.12 Service of documents.

* * * * *

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

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

filing such document upon the participants in the proceeding

individually or by such

groups as may be directed by the Commission or presiding officer except

for discovery requests governed by Secs. 3001.26 (a) and (c), 3001.27

(a) and (c), and 3001.28 (a) and (c), and except for designations for

written cross-examination, notices of intent to conduct oral cross-

examination and notices of intent to participate in oral argument,

which need be served only on the Commission, the OCA, the Postal

Service, and the complementary party (as applicable), as well as on

participants filing a special request for service

3001.27

(a) and (c), and 3001.28 (a) and (c), and except for designations for

written cross-examination, notices of intent to conduct oral cross-

examination and notices of intent to participate in oral argument,

which need be served only on the Commission, the OCA, the Postal

Service, and the complementary party (as applicable), as well as on

participants filing a special request for service. Also, discovery

requests and pleadings related thereto, such as objections, motions for

extensions of time, motions to compel or for more complete answers, and

answers to such pleadings, must be served only on the Commission, the

OCA, the Postal Service, the complementary party, and on any other

participant so requesting, as provided in sections 26-28 of the rules

of practice. Special requests relating to discovery must be served

individually upon the party conducting discovery and state the witness

who is the subject of the special request.

* * * * *

(d) Service list. The Secretary shall maintain a current service

list in each proceeding which shall include the participants in that

proceeding and up to two individuals designated for service of

documents by each participating with the address and, if possible, a

telephone number and facsimile number designated in the participant's

initial pleading in such proceeding or a notice of appearance as

provided in Sec. 3001.6(c). The service list shall show the

participants actively participating in the hearing and representative

groups established pursuant to paragraph (c) of this section. Service

on the Secretary's service list in any proceeding, as directed by the

Commission or the presiding officer, shall be deemed service in

compliance with the requirements of this section.

its

discretion determines that a hearing is in the public interest. The

Commission may give notice of its determination that a hearing shall be

held in its original notice of the proceeding or in a subsequent notice

issued pursuant to paragraph (b) of this section and Sec. 3001.19.

* * * * *

10. Revise Sec. 3001.19 to read as follows:

Sec. 3001.19 Notice of prehearing conference or hearing.

In any proceeding noticed for a proceeding on the record pursuant

to Sec. 3001.17(a) the Commission shall give due notice of any

prehearing conference or hearing by including the time and place of the

conference or hearing in the notice of proceeding or by subsequently

issuing a notice of prehearing conference or hearing. Such notice of

prehearing conference or hearing shall give the title and docket

designation of the proceeding, a reference to the original notice of

proceeding and the date of such notice, and the time and place of the

conference or hearing. Such notice shall be published in the Federal

Register and served on all participants in the proceeding involved.

Notice of the time and place where a hearing will be reconvened shall

be served on all participants in the proceeding unless announcement was

made thereof by the presiding officer at the adjournment of an earlier

session of the prehearing conference or hearing.

11. Amend Sec. 3001.20 by revising paragraph (a) to read as

follows:

Sec. 3001.20 Formal intervention.

in the proceeding involved.

Notice of the time and place where a hearing will be reconvened shall

be served on all participants in the proceeding unless announcement was

made thereof by the presiding officer at the adjournment of an earlier

session of the prehearing conference or hearing.

11. Amend Sec. 3001.20 by revising paragraph (a) to read as

follows:

Sec. 3001.20 Formal intervention.

(a) Who may intervene. A notice of intervention will be entertained

in those cases that are noticed for a proceeding pursuant to

Sec. 3001.17(a) from any person claiming an interest of such nature

that intervention is allowed by the Act, or appropriate to its

administration.

* * * * *

12. Amend Sec. 3001.20a by revising the introductory text to read

as follows:

Sec. 3001.20a Limited participation by persons not parties.

Notwithstanding the provisions of Sec. 3001.20, any person may

appear as a limited participator in any case that is noticed for a

proceeding pursuant to Sec. 3001.17(a), in accordance with the

following provisions;

* * * * *

13. Amend Sec. 3001.21 as follows:

a. Revise paragraph (b), and

b. Add new paragraph (c) to read as follows:

Sec. 3001.21 Motions

* * * * *

(b) Answers. Within seven days after a motion is filed, or such

other period as the rules provide or the Commission or presiding

officer may fix, any participant to the proceeding may file and serve

an answer in support of or in opposition to the motion pursuant to

Secs. 3001.9 to 3001.12. Such answers shall state with particularity

the position of the participant with regard to the ruling or relief

requested in the motion and the grounds and basis and statutory or

other authority relied upon. Unless the Commission or presiding officer

otherwise provides, no reply to an answer or any further responsive

document shall be filed.

to the motion pursuant to

Secs. 3001.9 to 3001.12. Such answers shall state with particularity

the position of the participant with regard to the ruling or relief

requested in the motion and the grounds and basis and statutory or

other authority relied upon. Unless the Commission or presiding officer

otherwise provides, no reply to an answer or any further responsive

document shall be filed.

(c) Motions to strike. Motions to strike are requests for

extraordinary relief and are not substitutes for briefs or rebuttal

evidence in a proceeding. All motions to strike testimony or exhibit

materials are to be submitted in writing at least 14 days before the

scheduled appearance of the witness, unless good cause is shown.

Responses to motions to strike are due within seven days.

Sec. 3001.28 [Removed]

14. Remove Sec. 3001.28.

Secs. 3001.25, 3001.26 and 3001.27 [Redesignate as Secs. 3001.26,

3001.27 and 3001.28, respectively]

15. Redesignate Secs. 3001.25, 3001.26 and 3001.27 as

Secs. 3001.26, 3001.27, 3001.28.

16. Revise redesignated Sec. 3001.26 to read as follows:

Sec. 3001.26 Interrogatories for purpose of discovery.

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

to information which appears reasonably calculated to lead to the

discovery of admissible evidence, any participant may serve upon any

other participant in a proceeding written, sequentially numbered

interrogatories, by witness, requesting nonprivileged information

relevant to the subject matter in such proceeding, to be answered by

the participant served, who shall furnish

ition and limited

to information which appears reasonably calculated to lead to the

discovery of admissible evidence, any participant may serve upon any

other participant in a proceeding written, sequentially numbered

interrogatories, by witness, requesting nonprivileged information

relevant to the subject matter in such proceeding, to be answered by

the participant served, who shall furnish

such information as is available to the participant. A participant

through interrogatories may require any other participant to identify

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

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

expected to testify. The participant serving the interrogatories shall

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

shall also serve the Postal Service and the OCA. Special requests for

service by other participants shall be honored. Follow-up

interrogatories to clarify or elaborate on the answer to an earlier

discovery request may be filed after the initial discovery period ends.

They must be served within seven days of receipt of the answer to the

previous interrogatory unless extraordinary circumstances are shown.

(b) Answers. Answers to discovery requests shall be prepared so

that they can be incorporated as written cross-examination. Each answer

shall begin on a separate page, identify the individual responding, the

participant who asked the question, and the number and text of the

question. Each interrogatory shall be answered separately and fully in

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

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

this section. The participant responding to the interrogatories shall

serve the answers on the participant who served the interrogatories

within 14 days of the service of the interrogatories or within such

other period as may be fixed by the presiding officer, but before the

conclusion of the hearing

event the reasons for

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

this section. The participant responding to the interrogatories shall

serve the answers on the participant who served the interrogatories

within 14 days of the service of the interrogatories or within such

other period as may be fixed by the presiding officer, but before the

conclusion of the hearing. Participants may submit responses with a

declaration of accuracy from the respondent in lieu of a sworn

affidavit. Answers are to be signed by the person making them. If the

person responding to the interrogatory is unavailable to sign the

answer when filed, a signature page must be filed within 10 days

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

Copies of the answers to interrogatories shall be filed with the

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

participants pursuant to Sec. 3001.12(b).

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

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

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

claiming privilege shall identify the specific evidentiary privilege

asserted and state the reasons for its applicability. A participant

claiming undue burden shall state with particularity the effort which

would be required to answer the interrogatory, providing estimates of

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

otherwise proper is not necessarily objectionable because an answer

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

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

order that such an interrogatory need not be answered until a

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

by the attorney making them. Copies of objections to interrogatories

shall be filed with the Secretary pursuant to Sec

wer

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

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

order that such an interrogatory need not be answered until a

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

by the attorney making them. Copies of objections to interrogatories

shall be filed with the Secretary pursuant to Sec. 3001.9 and shall be

served upon the proponent of the interrogatory, the Postal Service, and

the OCA within seven days of the request for production. Special

requests for service by other participants shall be honored.

(d) Motions to compel responses to discovery. Motions to compel a

more responsive answer, or an answer to an interrogatory to which an

objection was interposed, should be filed within 14 days of the answer

or objection to the discovery request. The text of the discovery

request, and any answer provided, should be provided as an attachment

to the motion to compel. Participants who have objected to

interrogatories which are the subject of a motion to compel shall have

seven days to answer. Answers will be considered supplements to the

arguments presented in the initial objection.

(e) Compelled answers. The Commission, or the presiding officer,

upon motion of any participant to the proceeding, may compel a more

responsive answer, or an answer to an interrogatory to which an

objection has been raised if the objection is found not to be valid, or

may compel an additional answer if the initial answer is found to be

inadequate. Such compelled answers shall be served on the participant

who moved to compel the answer within seven days of the date of the

order compelling an answer or within such other period as may be fixed

by the presiding officer, but before the conclusion of the hearing.

Copies of the answers shall be filed with the Secretary pursuant to

Sec. 3001.9 and on participants pursuant to Sec. 3001.12(b).

. Such compelled answers shall be served on the participant

who moved to compel the answer within seven days of the date of the

order compelling an answer or within such other period as may be fixed

by the presiding officer, but before the conclusion of the hearing.

Copies of the answers shall be filed with the Secretary pursuant to

Sec. 3001.9 and on participants pursuant to Sec. 3001.12(b).

(f) Supplemental answers. The individual or participant who has

answered interrogatories is under the duty to seasonably amend a prior

answer if he/she obtains information upon the basis of which he/she

knows that the answer was incorrect when made or is no longer true.

Participants shall serve supplemental answers to update or to correct

responses whenever necessary, up until the date the answer could have

been accepted into evidence as written cross-examination. Participants

filing supplemental answers shall indicate whether the answer merely

supplements the previous answer to make it current or whether it is a

complete replacement for the previous answer.

(g) Orders. The Commission or the presiding officer may order that

any participant or person shall answer on such terms and conditions as

are just and may for good cause make any protective order, including an

order limiting or conditioning interrogatories, as justice requires to

protect a party or person from undue annoyance, embarrassment,

oppression, or expense.

17. Revise redesignated Sec. 3001.27 to read as follows:

Sec. 3001.27 Requests for production of documents or things for

purpose of discovery.

ms and conditions as

are just and may for good cause make any protective order, including an

order limiting or conditioning interrogatories, as justice requires to

protect a party or person from undue annoyance, embarrassment,

oppression, or expense.

17. Revise redesignated Sec. 3001.27 to read as follows:

Sec. 3001.27 Requests for production of documents or things for

purpose of discovery.

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

to information which appears reasonably calculated to lead to the

discovery of admissible evidence, any participant may serve on any

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

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

inspect and copy any designated documents or things which constitute or

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

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

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

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

category, and describe each item and category with reasonable

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

making inspection. The participant requesting the production of

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

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

Service and the OCA. Special requests for service by other participants

shall be honored.

category with reasonable

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

making inspection. The participant requesting the production of

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

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

Service and the OCA. Special requests for service by other participants

shall be honored.

(b) Answers. The participant upon whom the request is served shall

serve a written answer on the participant who filed the request within

14 days after the service of the request, or within such other period

as may be fixed by the presiding officer. The answer shall state, with

respect to each item or category, that inspection will be permitted as

requested unless the request is objected to pursuant to paragraph (c)

of this section. The participant answering the request shall sign and

file a copy of the

answer with the Secretary pursuant to Sec. 3001.9 and shall serve

copies thereof upon other participants pursuant to Sec. 3001.12(b).

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

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

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

claiming privilege shall identify the specific evidentiary privilege

asserted and state the reasons for its applicability. A participant

claiming undue burden shall state with particularity the effort which

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

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

signed by the attorney making them. The party objecting to requests

shall serve the objections on the party requesting production of

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

upon the Postal Service and the OCA within 7 days of the request for

production. Special requests for service by other participants shall be

honored.

o the extent possible. Objections are to be

signed by the attorney making them. The party objecting to requests

shall serve the objections on the party requesting production of

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

upon the Postal Service and the OCA within 7 days of the request for

production. Special requests for service by other participants shall be

honored.

(d) Motions to compel requests for production of documents or

things for purposes of discovery. Motions to compel shall be filed

within 14 days of the answer or objection to the discovery request. The

text of the discovery request, and any answer provided, should be

provided as an attachment to the motion to compel. Participants who

have objected to requests for production of documents or things which

are the subject of a motion to compel shall have seven days to answer.

Answers will be considered supplements to the arguments presented in

the initial objection.

(e) Orders. Upon motion of any participant to the proceeding to

compel a response to discovery, as provided in paragraph (d) of this

section, the Commission or the presiding officer may compel production

of documents or things to which an objection has been raised if the

objection is found not to be valid. Such compelled documents or things

shall be made available to the participants making the motion within

seven days of the date of the order compelling production or within

such other period as may be fixed by the presiding officer, but before

the conclusion of the hearing. Documents or things ordered to be

produced also shall be filed pursuant to Sec. 3001.9 and served

pursuant to Sec. 3001.12(b). The Commission or the presiding officer

may, on such terms and conditions as are just and reasonable, order

that any participant in a proceeding shall respond to a request for

inspection, and may make any protective order of the nature provided in

Sec. 3001.26(g) as may be appropriate.

18. Revise redesignated Sec. 3001.28 to read as follows:

ec. 3001.9 and served

pursuant to Sec. 3001.12(b). The Commission or the presiding officer

may, on such terms and conditions as are just and reasonable, order

that any participant in a proceeding shall respond to a request for

inspection, and may make any protective order of the nature provided in

Sec. 3001.26(g) as may be appropriate.

18. Revise redesignated Sec. 3001.28 to read as follows:

Sec. 3001.28 Requests for admissions for purpose of discovery.

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

participant may serve upon any other participant a written request for

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

relevant, unprivileged facts, including the genuineness of any

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

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

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

the Postal Service and the OCA. Special requests for service by other

participants shall be honored.

(b) Answers. Each matter of which an admission is requested shall

be separately set forth and is admitted unless within 14 days after

service of the request, or within such other period as may be fixed by

the presiding officer, the participant to whom the request is directed

serves upon the participant requesting the admission a written answer

or files an objection pursuant to paragraph (c) of this section. A

participant who answers a request for admission shall file a copy of

the answer with the Secretary pursuant to Sec. 3001.9 and shall serve

copies thereof upon other participants pursuant to Sec. 3001.12(b).

er, the participant to whom the request is directed

serves upon the participant requesting the admission a written answer

or files an objection pursuant to paragraph (c) of this section. A

participant who answers a request for admission shall file a copy of

the answer with the Secretary pursuant to Sec. 3001.9 and shall serve

copies thereof upon other participants pursuant to Sec. 3001.12(b).

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

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

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

privilege shall identify the specific evidentiary privilege asserted

and state the reasons for its applicability. A participant claiming

undue burden shall state with particularity the effort which would be

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

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

the attorney making them. The participant objecting to requests for

admissions shall serve the objections on the participant requesting

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

Postal Service and the OCA, within seven days of the request. Special

requests for service by other participants shall be honored.

(d) Motions to compel responses to requests for admissions. Motions

to compel a more responsive answer, or an answer to a request to which

an objection was interposed, shall be filed within 14 days of the

answer or objection to the request for admissions. The text of the

request for admissions, and any answer provided, should be provided as

an attachment to the motion to compel. Participants who have objected

to requests for admissions which are the subject of a motion to compel

shall have seven days to answer. Answers will be considered supplements

to the arguments presented in the initial objection.

r objection to the request for admissions. The text of the

request for admissions, and any answer provided, should be provided as

an attachment to the motion to compel. Participants who have objected

to requests for admissions which are the subject of a motion to compel

shall have seven days to answer. Answers will be considered supplements

to the arguments presented in the initial objection.

(e) Orders. Upon motion of any participant to the proceeding the

Commission or the presiding officer may compel answers to a request for

admissions to which an objection has been raised if the objection is

found not to be valid. Such compelled answers shall be served on the

participants who moved to compel the answers within seven days of the

date of the order compelling production or within such other period as

may be fixed by the Commission or the presiding officer, but before the

conclusion of the hearing. Copies of the answers shall be filed upon

the Secretary pursuant to Sec. 3001.9 and served upon other

participants pursuant to Sec. 3001.12(b). If the Commission or

presiding officer determines that an answer does not comply with the

requirements of this rule, it may order either that the matter is

admitted or that an amended answer be served.

19. Add Sec. 3001.25 to read as follows:

Sec. 3001.25 Discovery--general policy.

(a) Rules 26 through 28 allow discovery reasonably calculated to

lead to admissible evidence during a noticed proceeding. Generally,

discovery against a participant will be scheduled to end prior to the

receipt into evidence of that participant's direct case. An exception

to this procedure shall operate in all proceedings brought under 39

U.S.C. 3622, 3623, 3661 and 3662 when a participant needs to obtain

information (such as operating procedures or data) available only from

the Postal Service

ticed proceeding. Generally,

discovery against a participant will be scheduled to end prior to the

receipt into evidence of that participant's direct case. An exception

to this procedure shall operate in all proceedings brought under 39

U.S.C. 3622, 3623, 3661 and 3662 when a participant needs to obtain

information (such as operating procedures or data) available only from

the Postal Service. Discovery requests of this nature are permissible

for the purpose of the development of rebuttal testimony and may be

made up to 20 days prior to the filing date for final rebuttal

testimony.

(b) The discovery procedures set forth in rules 26 through 28 are

not exclusive. Participants are encouraged to engage in informal

discovery whenever possible to clarify exhibits and testimony. The

results of these efforts may be introduced into the record by

stipulation, by supplementary testimony or exhibit, by presenting

selected written interrogatories and answers for adoption by a witness

at the hearing, or by other appropriate means. In the interest of

reducing motion practice, parties also are expected to use informal

means to clarify questions and to identify portions of discovery

requests considered overbroad or burdensome.

(c) If a participant or an officer or agent of a participant fails

to obey an order of the Commission or the presiding officer to provide

or permit discovery pursuant to Secs. 3001.26 to 3001.28, the

Commission or the presiding officer may make such orders in regard to

the failure as are just, and among others, may direct that the matters

regarding which the order was made or any other designated facts shall

be taken to be established for the purposes of the proceeding in

accordance with the claim of the participants obtaining the order, or

prohibit the disobedient participant from introducing designated

matters in evidence, or strike the evidence, complaint or pleadings or

parts thereof.

20. Amend Sec. 3001.30 by revising paragraph (e) to read as

follows:

de or any other designated facts shall

be taken to be established for the purposes of the proceeding in

accordance with the claim of the participants obtaining the order, or

prohibit the disobedient participant from introducing designated

matters in evidence, or strike the evidence, complaint or pleadings or

parts thereof.

20. Amend Sec. 3001.30 by revising paragraph (e) to read as

follows:

Sec. 3001.30 Hearings.

* * * * *

(e)(1) Presentations by participants. Any participant, including

the Postal Service, shall have the right in public hearings of

presentation of evidence, cross-examination (limited to testimony

adverse to the participant conducting the cross-examination),

objection, motion, and argument. The case-in-chief of participants

other than the proponent shall be in writing and shall include the

participant's direct case and rebuttal, if any, to the initial

proponent's case-in-chief. It may be accompanied by a trial brief or

legal memoranda. (Legal memoranda on matters at issue will be welcome

at any stage of the proceeding.) There will be an opportunity for

participants to rebut presentations of other participants and for the

initial proponent to present surrebuttal evidence. New affirmative

matter (not in reply to another participant's direct case) should not

be included in rebuttal testimony or exhibits. When objections to the

admission or exclusion of evidence before the Commission or the

presiding officer are made, the grounds relied upon shall be stated.

Formal exceptions to rulings are unnecessary.

for the

initial proponent to present surrebuttal evidence. New affirmative

matter (not in reply to another participant's direct case) should not

be included in rebuttal testimony or exhibits. When objections to the

admission or exclusion of evidence before the Commission or the

presiding officer are made, the grounds relied upon shall be stated.

Formal exceptions to rulings are unnecessary.

(2) Written cross-examination. Written cross-examination will be

utilized as a substitute for oral cross-examination whenever possible,

particularly to introduce factual or statistical evidence. Designations

of written cross-examination should be served no later than three

working days before the scheduled appearance of a witness. Designations

shall identify every item to be offered as evidence, listing the

participant who initially posed the discovery request, the witness and/

or party to whom the question was addressed (if different from the

witness answering), the number of the request and, if more than one

answer is provided, the dates of all answers to be included in the

record. (For example, ``OCA-T1-17 to USPS witness Jones, answered by

USPS witness Smith (March 1, 1997) as updated (March 21, 1997)).'' When

a participant designates written cross-examination, two copies of the

documents to be included shall simultaneously be submitted to the

Secretary of the Commission. The Secretary of the Commission shall

prepare for the record a packet containing all materials designated for

written cross-examination in a format that facilitates review by the

witness and counsel. The witness will verify the answers and materials

in the packet, and they will be entered into the transcript by the

presiding officer. Counsel may object to written cross-examination at

that time, and any designated answers or materials ruled objectionable

will be stricken from the record.

signated for

written cross-examination in a format that facilitates review by the

witness and counsel. The witness will verify the answers and materials

in the packet, and they will be entered into the transcript by the

presiding officer. Counsel may object to written cross-examination at

that time, and any designated answers or materials ruled objectionable

will be stricken from the record.

(3) Oral cross-examination. Oral cross-examination will be

permitted for clarifying written cross-examination and for testing

assumptions, conclusions or other opinion evidence. Notices of intent

to conduct oral cross-examination should be delivered to counsel for

the witness and served three or more working days before the announced

appearance of the witness and should include (a) specific references to

the subject matter to be examined and (b) page references to the

relevant direct testimony and exhibits. Participants intending to use

complex numerical hypotheticals, or to question using intricate or

extensive cross-references, shall provide adequately documented cross-

examination exhibits for the record. Copies of these exhibits should be

delivered to counsel for the witness at least two calendar days

(including one working day) before the scheduled appearance of the

witness.

* * * * *

21. Amend Sec. 3001.31 as follows:

a. Revise paragraph (c),

b. Revise paragraph (d),

c. Revise paragraph (e),

d. Revise paragraphs (k)(3)(i)(d) through (f), and

e. Revise paragraph (k)(3)(i)(i) and paragraph (k)(4) to read as

follows:

Sec. 3001.31 Evidence.

* * * * *

(c) Commission's files. Except as otherwise provided in

Sec. 3001.31(e), in case any matter contained in a report or other

document on file with the Commission is offered in evidence, such

report or other document need not be produced or marked for

identification, but may be offered in evidence by specifying the

report, document, or other file containing the matter so offered.

* * * * *

* *

(c) Commission's files. Except as otherwise provided in

Sec. 3001.31(e), in case any matter contained in a report or other

document on file with the Commission is offered in evidence, such

report or other document need not be produced or marked for

identification, but may be offered in evidence by specifying the

report, document, or other file containing the matter so offered.

* * * * *

(e) Designation of evidence from other Commission dockets.

Participants may request that evidence received in other Commission

proceedings be entered into the record of the current proceeding. These

requests shall be made by motion, shall explain the purpose of the

designation, and shall identify material by page and line or paragraph

number. Absent extraordinary justification, these requests must be made

at least 28 days before the date for filing the participant's direct

case. Oppositions to motions for designations and/or requests for

counter-designations shall be filed within 14 days. Oppositions to

requests for counter-designations are due within seven days. At the

time requests for designations and counter-designations are made, the

moving participant must submit two copies of the identified material to

the Secretary of the Commission.

(f) Form of prepared testimony and exhibits. Unless the presiding

officer otherwise directs, the direct testimony of witnesses shall be

reduced to writing and offered either as such or as an exhibit. All

prepared testimony and exhibits of a documentary character shall, so

far as practicable, conform to the requirements of Sec. 3001.10(a) and

(b).

* * * * *

(k) * * *

(3) * * *

(i) * * *

(d) A hard copy of all data bases;

(e) For all source codes, documentation sufficiently comprehensive

and detailed to satisfy generally accepted software documentation

standards appropriate to the type of program and its intended use in

the proceeding;

(f) The source code in hardcopy form;

* * * * *

m to the requirements of Sec. 3001.10(a) and

(b).

* * * * *

(k) * * *

(3) * * *

(i) * * *

(d) A hard copy of all data bases;

(e) For all source codes, documentation sufficiently comprehensive

and detailed to satisfy generally accepted software documentation

standards appropriate to the type of program and its intended use in

the proceeding;

(f) The source code in hardcopy form;

* * * * *

(i) An expert on the design and operation of the program shall be

provided at a technical conference to respond to any oral or written

questions concerning information that is reasonably necessary to enable

independent replication of the program output. Machine-readable data

files and program files shall be provided in the form of a compact disk

or other media or method approved in advance by the Administrative

Office of the Postal Rate Commission. Any machine-readable data file or

program file so provided

must be identified and described in accompanying hardcopy

documentation. In addition, files in text format must be accompanied by

hard-copy instructions for printing them. Files in machine code must be

accompanied by hardcopy instructions for executing them.

* * * * *

(4) Expedition. The offeror shall expedite responses to requests

made pursuant to this section. Responses shall be served on the

requesting party, and notice thereof filed with the Secretary in

accordance with the provisions of Sec. 3001.12, no later than 14 days

after a request is made.

22. Amend Sec. 3001.43 as follows:

a. Revise paragraphs (e)(4) introductory text and (e)(4)(i),

b. Revise paragraph (g)(1)(iii), and

c. Revise paragraph (g)(2)(iii) to read as follows:

Sec. 3001.43 Public attendance at Commission meetings.

* * * * *

(e) * * *

(4) The public announcement required by this section may consist of

the Secretary:

(i) Publicly posting a copy of the document in the office of the

Secretary of the Commission at 1333 H Street, NW., Suite 300,

Washington, DC 20268-0001;

* * * * *

(g)(1)(iii), and

c. Revise paragraph (g)(2)(iii) to read as follows:

Sec. 3001.43 Public attendance at Commission meetings.

* * * * *

(e) * * *

(4) The public announcement required by this section may consist of

the Secretary:

(i) Publicly posting a copy of the document in the office of the

Secretary of the Commission at 1333 H Street, NW., Suite 300,

Washington, DC 20268-0001;

* * * * *

(g) * * *

(1)(i) * * *

(iii) Ten copies of such requests must be received by the office of

the Secretary no later than three working days after the issuance of

the Notice of Meeting to which the request pertains. Requests received

after that time will be returned to the requester with a statement that

the request was untimely received and that copies of any nonexempt

portions of the transcript or minutes for the meeting in question will

ordinarily be available in the office of the Secretary ten working days

after the meeting.

* * * * *

(2)(i) * * *

(iii) Ten copies of such requests should be filed with the office

of the Secretary as soon as possible after the issuance of the Notice

of Meeting to which the request pertains. However, a single copy of the

request will be accepted. Requests to close meetings must be received

by the office of the Secretary no later than the time scheduled for the

meeting to which such a request pertains.

* * * * *

[FR Doc. 99-33556 Filed 12-27-99; 8:45 am]

BILLING CODE 7710-FW-P