[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Proposed Rules]
[Pages 72622-72632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33556]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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. 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
[[Page 72623]]
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));
(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. 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. 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.
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.
[[Page 72624]]
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
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. 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. 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
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. 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.
[[Page 72625]]
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.
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. 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. 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. 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
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
[[Page 72626]]
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.
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.
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). 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 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. 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
[[Page 72627]]
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. 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.
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.
* * * * *
(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).
(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
[[Page 72628]]
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. 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.
(e) Method of service. Service may be made by First-Class Mail or
personal delivery to the address shown for the persons designated on
the Secretary's service list. Service of any document upon the Postal
Service shall be made by delivering or mailing six copies thereof to
the Chief Counsel, Rates and Classification, U.S. Postal Service,
Washington, DC 20260-1170. Service via electronic filing may be
available under circumstances prescribed by the Commission or the
presiding officer.
* * * * *
Sec. 3001.17 [Amended]
8. Amend Sec. 3001.17 by redesignating paragraphs (a-1), (b) and
(c) as paragraphs (b), (c) and (d).
9. Amend Sec. 3001.18 by revising paragraph (a) to read as follows:
Sec. 3001.18 Nature of proceedings.
(a) Proceedings to be set for hearing. In any case noticed for a
proceeding to be determined on the record pursuant to Sec. 3001.17(a),
the Commission may hold a public hearing if a hearing is requested by
any party to the proceeding or if the Commission in the exercise of 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.
(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.
(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
[[Page 72629]]
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. 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. 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).
(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.
(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.
(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
[[Page 72630]]
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.
(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:
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).
(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.
(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. 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
[[Page 72631]]
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:
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.
(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.
(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.
* * * * *
(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;
* * * * *
(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
[[Page 72632]]
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)(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
