§ 3010.321 - Hearings.

§ 3010.321 Hearings.

(a) How convened.

(1) Hearings shall be convened by the issuance of a notice, order, or presiding officer's ruling that is published in the Federal Register. Only the first session of a public hearing need be noticed and published in the Federal Register. All subsequent sessions within a docket are to be considered part of the same hearing. If there is a prehearing conference, the prehearing conference is to be considered the first hearing session in that docket.

(2) At the adjournment of each hearing session, the presiding officer responsible for the conduct of that hearing session shall announce if and when the hearing will reconvene. If an announcement is not made at the adjournment of the hearing session, the Commission or presiding officer shall announce the time, date, and location of any subsequent hearing, or prehearing conference, in writing by notice, order, or presiding officer ruling.

(b) Who presides. The presiding officer, if designated, shall preside over a public hearing. If a presiding officer has not been designated or is otherwise unavailable for a hearing, then the ranking Commissioner in attendance shall be considered the presiding officer for that hearing. The presiding officer shall open and close each session of the hearing, and shall be responsible for controlling the conduct of the hearing.

(c) Entering of appearances. The presiding officer before whom the hearing is held will cause to be entered on the record all appearances together with a notation showing on whose behalf each such appearance has been made.

(d) Witnesses. All witnesses are expected to be available for public hearings. Unless otherwise ordered by the presiding officer, a witness need only attend a hearing on those days scheduled for entering that witness's testimony. Subject to the discretion and prior approval of the presiding officer, a witness may be excused from appearing at a hearing and may have the witness's written testimony and cross-examination entered into evidence by counsel.

(e) Order of presentations.

(1) The proponent of a matter before the Commission shall present the proponent's direct case first. In matters initiated by the Postal Service, the Postal Service shall be considered the proponent. In complaint proceedings under section 3662 of the Act, the complainant shall be considered the proponent. The proponent also shall be provided an opportunity to respond to any rebuttal to the proponent's direct case. In all other instances, the Commission or the presiding officer shall determine the order of presentation.

(2) The order of presentations by parties other than the proponent shall be determined by the Commission or the presiding officer.

(3) The Commission or presiding officer shall announce the order of presentation of parties and individual witnesses prior to hearing sessions and shall issue such other procedural orders as may be necessary to assure the orderly and expeditious conclusion of the hearing. Parties may present their preferences for order of appearance to the Commission or the presiding officer orally at a hearing or by filing a notice prior to the scheduled hearing date. Parties who disagree with a proposed order of appearances may move for a revised order of appearances either orally at a hearing or by filing a written motion pursuant to § 3010.160.

(f) Swearing in of witnesses.

(1) Witnesses attending a hearing whose testimony is to be taken shall be sworn, or shall affirm, before their testimony shall be deemed evidence in the proceeding or any questions are put to them. The witness shall be sworn by means of the following (or an equivalent): “Please raise your right hand. Do you solemnly swear (or affirm), that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth? Please state your full name.”

(2) The oath shall be given upon the first appearance of the witness providing testimony. Upon subsequent appearances, the witness is to be reminded by the presiding officer that the witness remains under oath for the duration of the proceeding.

(3) Witnesses not attending a hearing whose testimony is entered by counsel during a hearing shall attach a signed declaration that the testimony being submitted is that of the witness. A declaration shall be included with each piece of written testimony, and each set of written cross-examination. The declaration shall state the following (or an equivalent): “Declaration of [witness name]. I, [witness name], hereby declare under penalty of perjury that: The [testimony, designated responses to written cross-examination] filed under my name were prepared by me or under my direction; and were I to [provide oral testimony, respond orally to the questions appearing in the interrogatories], my answers would be the same.”

(4) Hearings that are conducted by the written submission of testimony only shall also attach written declarations to testimony and cross-examination as described above.

(g) Presentation of the evidence -

(1) Presentations by parties. Each party shall have the right to present evidence, cross-examine witnesses (limited to testimony adverse to the party conducting the cross-examination), and to present objections, motions, and arguments. The case-in-chief of parties other than the proponent shall be in writing and shall include the party's direct case and rebuttal, if any, to the initial proponent's case-in-chief. A party's presentation may be accompanied by a trial brief or legal memoranda. Legal memoranda on matters at issue are generally welcome at any stage of the proceeding. Parties will be given an opportunity to rebut presentations of other parties, including an opportunity for the initial proponent to present surrebuttal evidence. New affirmative matter (not in reply to another party'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 testimony.

(i) Written testimony shall be offered in evidence by motion. The motion shall be made orally during a hearing, or in writing when the hearing is conducted by the written submission of testimony only. When a party moves to enter testimony into the record, three hard copies of the document shall simultaneously be submitted to the Commission for the record. The copies are to be printed single-sided, and not stapled, hole-punched, or bound, but may be fastened together by paper or binder clip, or equivalent.

(ii) Witnesses shall be provided an opportunity to verify that the written testimony they are sponsoring is their testimony and that it would be the same if given orally. The witness, or counsel, shall state the original filing date of the testimony and identify all subsequent filings that amended the original testimony. If there are any final corrections to the testimony, the corrections may be noted on the hard copies submitted to the Commission. However, the witness shall be required to file errata to the testimony within seven days of the hearing, making corrections only to the extent as identified during the hearing. Any other changes shall be requested separately by motion to amend the record.

(iii) Parties shall be provided an opportunity to object to all or part of a witness's written testimony prior to entering that testimony into the record. Objections that have not previously been made in writing at least 14 days prior to the hearing date shall be granted only under extraordinary circumstances.

(iv) After resolution of all objections, the presiding officer shall order the testimony entered into the record as evidence. Unless otherwise ordered by the presiding officer, the written testimony shall not be copied into the hearing transcript.

(3) Library references.

(i) Library references sponsored by a witness and associated with the witness's written testimony or written cross-examination may be offered in evidence by motion. The motion shall be made orally during a public hearing, or in writing for a hearing that is conducted by the written submission of testimony only.

(ii) Witnesses shall be provided an opportunity to verify that the library reference is their library reference and to affirm that they are in fact sponsoring the library reference. If a witness inadvertently fails to verify and affirm that the witness is sponsoring a library reference that is cited in written testimony or in response to written cross-examination, it will be presumed that the library reference is to be included in the record to the extent specified in the notice of the filing of the library reference.

(iii) Parties shall be provided an opportunity to object to all or any part of the library reference being entered into the record. Objections that have not been made in writing at least 14 days prior to the hearing date shall be granted only under extraordinary circumstances.

(iv) After resolution of all objections, the presiding officer shall order the library reference be entered into the record as evidence. Unless ordered by the presiding officer, library references shall not be copied into the hearing transcript.

(4) Written cross-examination.

(i) Written cross-examination will be utilized as a substitute for oral cross-examination whenever possible, particularly to introduce factual or statistical evidence. Written cross-examination may be offered in evidence by motion. The motion shall be made orally during a public hearing, or in writing for a hearing that is conducted by the written submission of testimony only. Written cross-examination proposed by parties other than the party associated with the witness shall be considered first, followed by that of the party of the witness.

(ii) Designations of written cross-examination should be filed with the Commission and served on the answering party 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 party 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, “PR-T1-17 to USPS witness Jones, answered by USPS witness Smith (March 1, 1997) as updated (March 21, 1997)).” When a party designates written cross-examination, three hard copies of the documents to be included shall simultaneously be submitted to the Secretary. The documents are to be printed single-sided, and not stapled, hole-punched, or bound, but may be fastened together by paper or binder clip, or equivalent. The Secretary 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.

(iii) A witness shall be provided an opportunity to verify that the written cross-examination is that of the witness and to assert that if the written cross-examination were being provided orally at the hearing it would be that of the witness. If there are any final corrections to the written cross-examination, the corrections may be noted on the hard copies before submission to the Commission.

(iv) Parties shall be provided an opportunity to object to all or any part of the written cross-examination prior to entering the testimony into the record.

(v) After resolution of all objections, the presiding officer shall order the written cross-examination entered into the record as evidence. The presiding office shall direct that the written cross-examination be copied into the hearing transcript.

(5) Oral cross-examination.

(i) Oral cross-examination will be permitted for clarifying written cross-examination and for testing assumptions, conclusions, or other opinion evidence.

(ii) Notices of intent to conduct oral cross-examination should be filed three or more working days before the announced appearance of the witness and should include specific references to the subject matter to be examined and page references to the relevant direct testimony and exhibits. If no notices are filed, and the Commission or presiding officer has no other reason for the witness to appear, the Commission or the presiding officer, in their discretion, may excuse the witness from appearing at the hearing and direct that the witness's testimony be entered by counsel.

(iii) A party 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 filed at least two full business days before the scheduled appearance of the witness. They may be filed online or delivered in hardcopy form to counsel for the witness, at the discretion of the party. When presented, examination exhibits are not to be considered record evidence. They are to be transcribed into the record for reference only. If adopted by the witness, the examination exhibit may be offered in evidence by motion.

(iv) At the conclusion of oral cross-examination, the witness shall be given an opportunity to consult with counsel. Counsel shall then be provided an opportunity to examine the witness for the purpose of clarifying statements previously made during oral cross-examination.

(h) Institutional testimony.

(1) This paragraph (h) is applicable to testimony offered in evidence that is not sponsored by an individual witness. This typically occurs when discovery questions are answered by the institution, and not by an individual witness.

(2) When institutional responses are offered in evidence by any party, the responding party shall make available at the hearing an officer of the institution that has the authority to attest to the authenticity and truthfulness of the responses, and that has the knowledge to be subject to oral cross-examination in regard to the responses. Section 3010.321 applies as if the officer of the institution were an individual witness.

(i) Limitations on presentation of the evidence. The taking of evidence shall proceed with all reasonable diligence and dispatch, and to that end, the Commission or the presiding officer may limit appropriately the number of witnesses to be heard upon any issue, the examination by any party to specific issues, and the cross-examination of a witness to that required for a full and true disclosure of the facts necessary for the disposition of the proceeding and to avoid irrelevant, immaterial, or unduly repetitious testimony.

(j) Motions during hearing. After a hearing has commenced, a request may be made by motion to the presiding officer for any procedural ruling or relief desired. Such motions shall specify the ruling or relief sought, and state the grounds therefor and statutory or other supporting authority. Motions made during hearings may be stated orally upon the record, except that the presiding officer may require that such motions be reduced to writing and filed separately. Any party shall have the opportunity to answer or object to such motions at the time and in the manner directed by the presiding officer.

(k) Rulings on motions. The presiding officer is authorized to rule upon any such motion not formally acted upon by the Commission prior to the commencement of a prehearing conference or hearing where immediate ruling is essential in order to proceed with the prehearing conference or hearing, and upon any motion to the presiding officer filed or made after the commencement thereof, except that no motion made to the presiding officer, a ruling upon which would involve or constitute a final determination of the proceeding, shall be ruled upon affirmatively by the presiding officer except as a part of a presiding officer's intermediate decision. This section shall not preclude a presiding officer, within the presiding officer's discretion, from referring any motion made in hearing to the Commission for ultimate determination.

(l) Transcript corrections. Corrections to the transcript of a hearing should not be requested except to correct a material substantive error in the transcription made at the hearing. Any request to correct a transcript shall be by motion filed no later than seven days after the transcript, or notice of the availability of a confidential transcript, is posted to the Commission's website. Corrections or changes to actual testimony shall not be allowed.