[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Rules and Regulations]
[Pages 12113-12116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5114]
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POSTAL RATE COMMISSION
39 CFR Part 3001
[Docket No. RM91-1; Order No. 1043]
Rules of Practice and Procedure
AGENCY: Postal Rate Commission.
ACTION: Final rule.
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SUMMARY: The Commission is publishing final rules amending its rules of
practice adopted in Order No. 1043, issued February 17, 1995. The rules
are based on revisions submitted as a proposed settlement of issues in
Docket RM91-1, a rulemaking addressing general improvements in the
Commission's rules of practice. The proposed revisions were published
in the Federal Register (59 FR 8576) and comments have been received
and considered. The differences between the rules as proposed and as
adopted reflect conforming changes, editorial improvements, or
clarification of intent.
EFFECTIVE DATE: March 6, 1995.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, Legal Advisor
(202) 789-6820.
SUPPLEMENTARY INFORMATION: Two settlement agreements involving proposed
improvements to the Commission's rules of practice were presented to
the Commission in this docket. In response to the settlement
coordinator's motion transmitting these agreements, the Commission
incorporated the text of both agreements in a notice of proposed
rulemaking, and requested comments. See 59 FR 8576, February 23, 1994.
One involved a number of traditional, or standard, aspects of these
rules, such as service and production specifications. This final rule
adopts, with minor adjustments, revisions to the rules of practice
contained in that proposal. The other proposed that participants be
required to file certain documents in electronic form. Opposition to
this settlement existed, and a new docket will shortly be established
to further explore potential solutions to problems in this area.
The Commission received five comments. Four commenters expressed
general support for the proposed revisions, but singled out one or more
specific changes for additional discussion. One commenter expressed no
opinion on the rules as whole, but sought clarification of one proposed
change.
The Commission's evaluation of the settlement agreements and
participants' comments leads to the publication of final rules that
differ in several respects from the proposed rules. The main
differences entail: the deletion of a proposed requirement related to
filing documents in electronic form; the express exclusion of answers
to interrogatories (and compelled answers) from the ``special request''
service practice otherwise applicable to discovery-related documents;
removal of language restricting transcript corrections of Commission
hearings to oral material; and clarification of minimum typeface size.
Other differences reflect conforming changes and editorial
improvements. A review of the rules and related comments follows.
Production Requirements (Rule 10(a)): Terminology and Formatting
Instructions
Existing rule 10(a) sets forth specifications for production and
preparation of documents filed with the Commission. The revision
updates these requirements to reflect modern office technology and
practice. For example, the final rule replaces the term
``typewritten,'' which currently appears as the title of the subsection
and in the first sentence, with the term ``production'' or
``produced,'' as appropriate. In addition, the final rule increases the
amount of space available for text by easing longstanding margin and
line-spacing restrictions. It also replaces the existing requirement
that text be double spaced with language allowing spacing of not less
than one [[Page 12114]] and one-half lines. The former reference to
``type no smaller than elite'' is supplemented with a restriction
against typeface sizes smaller than 12 points.
The latter change responds to one commenter's request for
clarification of the proposed change regarding minimum allowable
typeface size. This commenter, David Popkin, notes that point size,
which the proposed rule adopts as the new standard, is inappropriate
because points represent letter height, not characters per inch. Mr.
Popkin raises the possibility that in adopting new terminology, the
proposed rule inadvertently imposes stiffer restrictions on typeface
size than currently exist. If so, the imposition of these restrictions
would be contrary to the thrust of other proposals, which generally
provide participants with more, rather than less, flexibility. The
Commission's resolution of this issue is influenced by two
considerations. One is the absence of any affirmative indication that
the settlement signatories intended to impose more stringent
restrictions on type size than currently exist. The other is the
assumption that the signatories wanted to reflect the emergence of word
processing equipment, which often includes software containing
proportional typefaces expressed in characters per inch. The Commission
views these as complementary, rather than competing, interests that can
be reconciled with a minor revision. Accordingly, the rule as adopted
retains the existing reference to elite type, but adds language
recognizing the growing use of typefaces expressed in characters per
inch or points.
Action on Proposed Rule Requiring Documents To Be Filed in
Electronic Form (Rule 10(d)) Deferred
The proposal concerning electronic filing was agreed to by some,
but not all, of the participants in the underlying rulemaking
proceeding. The Postal Service, which did not support the proposal,
reiterated its opposition to this change during the comment period. It
asserted that it had encountered difficulty in generating diskette
versions of its Docket No. R94-1 testimony and raised concerns about
the potential for administrative problems. The Service further stated
its conviction that this rule would not enhance efficiency or ease the
burden on participants in the absence of uniform standards and an
acceptable method of authentication. The Newspaper Association of
America conditioned its support of the electronic filing provision on
the Service's willingness to comply with it. The Office of the Consumer
Advocate (OCA), which was a signatory to the non-unanimous settlement
on electronic filing, reiterated its support for adoption of the rule
as proposed but also formally requested that publication of the
electronic filing rule be followed by notice of the Commission's
interest in requiring that extensive database information be provided
on CD-ROM media.
The Commission believes that the benefits of filing documents in
electronic form are substantial. However, the Commission's review of
the proposed rule and the record that has been developed in the
underlying docket indicate that important questions about the scope,
intent and adequacy of the rule as proposed remain unanswered.
Moreover, the success of this type of change depends heavily on the
cooperation of the Postal Service and other active participants. The
Service's opposition leads the Commission to defer action on the
proposed rule pending an opportunity for a more focused discussion.
This discussion could include consideration of a requirement addressing
the filing of extensive database information on CD-ROM, as suggested by
the OCA. Accordingly, the Commission plans to publish an advance notice
of proposed rulemaking to further explore this topic.
Service Requirements Related to Discovery Requests (Rule 12(b) and
Rules 25 Through 27)
Existing rule 12(b), which addresses service by parties, generally
requires that all documents be served upon all participants. This
requirement has the potential to impose a burden on participants. In
the interest of easing the service burden, the proposed settlement
provision carved out an exception to rule 12(b)'s blanket service rule
for discovery requests pursuant to rules 25 (interrogatories), 26
(requests for production of documents) and 27 (requests for
admissions). It also added the direction that ``Special requests for
service by other participants shall be honored'' and a sentence
providing that special requests may be served upon participants
conducting discovery and was to identify the witness(es) involved.
The preamble in the notice of proposed rulemaking acknowledged that
a settlement conference participant had questioned whether the proposed
revision accurately reflected the position of the conferees, as the
terms applicable to service of answers appear to differ from those
applicable to service of discovery requests and objections thereto.
This participant's understanding was that the conferees intended for
the ``special request'' provision to apply across-the-board. In
recognition of this comment, the Commission indicated that in the
absence of opposition, it would make appropriate changes reflecting a
uniform service requirement.
However, another conferee has submitted a comment objecting to
applying the new ``special request'' requirement to the service of
discovery answers. This commenter apparently supports retention of rule
12(b)'s requirement of ``automatic'' service upon all participants for
these filings. The commenter expresses no opposition to the ``special
request'' practice for being served with discovery requests or
objections.
This system of limited service of discovery requests and objections
was followed in the most recent omnibus rate case, Docket R94-1. While
some parties chose to serve documents even when no special request had
been received, this new system allowed interested intervenors to reduce
the cost of participation if they wished to do so. The Commission
believes that formalizing the practice of limited service of discovery
requests and objections can considerably reduce the burden of
participation in Commission proceedings. Given that participants'
interest in answers to interrogatories may differ from their interest
in the initial questions or objections thereto, and the Commission's
indication that it would honor objections to across-the-board
application of the service requirement, the rule as adopted does not
apply to the service of answers to interrogatories (or compelled
answers). Instead, answers to interrogatories will be subject to the
general service requirement. By extension, service of compelled answers
and supplemental answers should also follow the general rule.
Grace Period for Filing Signature Pages (Rule 25(b))
Existing rule 25(b) requires that answers to interrogatories be
signed by the person responding to them. The proposed rule allows a 10-
day grace period for filing signature pages if the witness involved is
not available to sign the answers when filed. The terms of the rule
recognize an exception to the general service requirements by providing
that signature pages filed under this circumstance need be served only
on the Commission, and not on participants. This provision was part of
the unopposed settlement, and it generated no opposition during the
recent comment period. The Commission agrees that this change
[[Page 12115]] would be beneficial, and adopts the change as proposed.
Responsibilities of Limited Participants (Rule 20a(c))
Existing rule 20a(c) provides that limited participators are not
required to respond to discovery requests. The final rule qualifies
this exception by requiring limited participators to respond to
discovery requests when those requests are directed specifically to
testimony limited participators have submitted. This provision was part
of the unopposed settlement, submitted by the OCA, and generated no
opposition during the most recent comment period. Accordingly, the rule
is adopted as proposed.
Transcript Corrections (Rule 30(i))
Existing rules do not explicitly address the scope of transcript
corrections. The change proposed in the settlement agreement, as a new
subsection (i) in rule 30, specifies that transcript corrections should
be limited to corrections of material substantive error in the
transcription of oral statements made at the hearing. The Commission
agrees that clarification of the informal practice that has developed
is useful, and welcomes this change. However, as official reporters
sometimes transcribe written material presented at hearings as well as
oral statements, the Commission believes it would be preferable to
eliminate the restriction to ``oral statements.'' With this
modification, the rule is adopted as proposed.
Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, the
Commission certifies that this rulemaking is not expected to have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required.
List of Subjects in 39 CFR Part 3001
Administrative practice and procedure, Postal Service.
For reasons set out in the preamble, 39 CFR part 3001 is amended as
follows:
PART 3001--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 3001 continues to read as
follows:
Authority: 39 U.S.C. 404(b), 3603, 3622-3624, 3661, 3662.
2. Section 3001.10 is amended by revising paragraph (a) to read as
follows:
Sec. 3001.10 Form and number of copies of documents.
(a) Production. If not printed, documents filed with the Commission
shall be produced on paper of letter size, 8 to 8\1/2\ inches wide by
10\1/2\ to 11 inches long, with left- and right-hand margins not less
than 1 inch and other margins not less than 0.75 inches, except tables,
charts or special documents attached thereto may be larger if required,
provided that they are folded to the size of the document to which they
are attached. The impression shall be on only one side of the paper
unless there are more than ten pages. The text shall be not less than
one and one-half spaced except that footnotes and quotations may be
single spaced. Any typeface not smaller than elite or a comparable size
expressed in points or characters per inch may be used. If the document
is bound, it shall be bound on the left side. Copies of documents for
filing and service may be reproduced by any duplicating process that
produces clear and legible copies.
* * * * *
3. Section 3001.12 is amended by revising paragraph (b) to read as
follows:
Sec. 3001.12 Service of documents.
* * * * *
(b) Service by the parties. Every document filed by any person with
the Commission in a proceeding shall be served by the person filing
such document upon the participants in the proceeding individually or
by such groups as may be directed by the Commission or presiding
officer except for discovery requests governed by Secs. 3001.25 (a) and
(c), 3001.26 (a) and (c), and 3001.27 (a) and (c). Special requests
relating to discovery must be served individually upon the party
conducting discovery and state the witness who is the subject of the
special request.
* * * * *
4. Section 3001.20a is amended by revising paragraph (c) to read as
follows:
Sec. 3001.20a Limited participation by persons not parties.
* * * * *
(c) Scope of participation. Subject to the provisions of
Sec. 3001.30(f), limited participators may present evidence which is
relevant to the issues involved in the proceeding and their testimony
shall be subject to cross-examination on the same terms applicable to
that of formal participants. Limited participants may file briefs or
proposed findings pursuant to Secs. 3001.34 and 3001.35, and within 15
days after the release of an intermediate decision, or such other time
as may be fixed by the Commission, they may file a written statement of
their position on the issues. The Commission or the presiding officer
may require limited participators having substantially like interests
and positions to join together for any or all of the above purposes.
Limited participators are not required to respond to discovery requests
under Sec. 3001.25 through Sec. 3001.28 except to the extent that those
requests are directed specifically to testimony which the limited
participators provided in the proceeding; however, limited
participators, particularly those making contentions under 39 U.S.C.
3622(b)(4), are advised that failure to provide relevant and material
information in support of their claims will be taken into account in
determining the weight to be placed on their evidence and arguments.
5. Section 3001.25 is amended by revising paragraphs (a), (b), (c)
and (d) to read as follows:
Sec. 3001.25 Interrogatories for purpose of discovery.
(a) Service and contents. In the interest of expedition and limited
to information which appears reasonably calculated to lead to the
discovery of admissible evidence, any participant may serve upon any
other participant in a proceeding written interrogatories requesting
nonprivileged information relevant to the subject matter in such
proceeding, to be answered by the participant served, who shall furnish
such information as is available to the participant. A participant
through interrogatories may require any other participant to identify
each person whom the other participant expects to call as a witness at
the hearing and to state the subject matter on which the witness is
expected to testify. The participant serving the interrogatories shall
file a copy thereof with the Secretary pursuant to Sec. 3001.9 and
shall serve a copy upon the Postal Service. Special requests for
service by other participants shall be honored.
(b) Answers. Each interrogatory shall be answered separately and
fully in writing, unless it is objected to, in which event the reasons
for objection shall be stated in the manner prescribed by paragraph (c)
of this section. The party responding to the interrogatories shall
serve the answers on the party who served the interrogatories within 20
days of the service of the interrogatories or within such other period
as may be fixed by the presiding officer, but before the conclusion of
the hearing. The answers are to be signed by the person making them. If
the person responding to the interrogatory is unavailable to
[[Page 12116]] sign the answer when filed, a signature page must be
filed within ten days thereafter with the Commission, but need not be
served on participants. Copies of the answers to interrogatories shall
be filed with the Secretary pursuant to Sec. 3001.9 and shall be served
upon other participants 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. The party objecting to interrogatories
shall serve the objections on the party who served the interrogatories
within 10 days of the service of the interrogatories. Copies of
objections to interrogatories shall be filed with the Secretary
pursuant to Sec. 3001.9 and shall be served upon the proponent of the
interrogatory and the Postal Service. Special requests for service by
other participants shall be honored.
(d) Compelled answers. The Commission, or the presiding officer,
upon motion of any participant to the proceeding, may compel 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 party who moved to compel the answer within 10 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).
* * * * *
6. Section 3001.26 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 3001.26 Requests for production of documents or things for
purpose of discovery.
(a) Service and contents. In the interest of expedition and limited
to information which appears reasonably calculated to lead to the
discovery of admissible evidence, any participant may serve on any
other participant to the proceeding a request to produce and permit the
participant making the request, or someone acting in his/her behalf, to
inspect and copy any designated documents or things which constitute or
contain matters, not privileged, which are relevant to the subject
matter involved in the proceeding and which are in the custody or
control of the participant upon whom the request is served. The request
shall set forth the items to be inspected either by individual item or
category, and describe each item and category with reasonable
particularity, and shall specify a reasonable time, place and manner of
making inspection. The participant requesting the production of
documents or things shall file a copy of the request with the Secretary
pursuant to Sec. 3001.9 and shall serve copies thereof upon the Postal
Service. Special requests for service by other participants shall be
honored.
* * * * *
(c) Objections. In the interest of expedition, the bases for
objection shall be clearly and fully stated. If objection is made to
part of an item or category, the part shall be specified. A participant
claiming privilege shall identify the specific evidentiary privilege
asserted and state the reasons for its applicability. A participant
claiming undue burden shall state with particularity the effort which
would be required to answer the request, providing estimates of cost
and work hours required, to the extent possible. Objections are to be
signed by the attorney making them. The party objecting to a request
shall serve the objection on the party requesting production of
documents or things, upon the Secretary pursuant to Sec. 3001.9 and
upon the Postal Service, within 10 days of the request for production.
Special requests for service by other participants shall be honored.
* * * * *
7. Section 3001.27 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 3001.27 Requests for admissions for purpose of discovery.
(a) Service and content. In the interest of expedition any
participant may serve upon any other participant a written request for
the admission, for purposes of the pending proceeding only, of any
relevant, unprivileged facts, including the genuineness of any
documents or exhibits to be presented in the hearing. The participant
requesting the admission shall file a copy of the request with the
Secretary pursuant to Sec. 3001.9 and shall serve copies thereof upon
the Postal Service. Special requests for service by other participants
shall be honored.
* * * * *
(c) Objections. In the interest of expedition, the bases for
objection shall be clearly and fully stated. If objection is made to
part of an item, the part shall be specified. A participant claiming
privilege shall identify the specific evidentiary privilege asserted
and state the reasons for its applicability. A participant claiming
undue burden shall state with particularity the effort which would be
required to answer the request, providing estimates of cost and work
hours required to the extent possible. Objections are to be signed by
the attorney making them. The party objecting to requests for
admissions shall serve the objections on the party requesting
admissions, upon the Secretary pursuant to Sec. 3001.9 and upon the
Postal Service, within 10 days of the request. Special requests for
service by other participants shall be honored.
* * * * *
8. Section 3001.30 is amended by adding paragraph (i) to read as
follows:
Sec. 3001.30 Hearings.
* * * * *
(i) Transcript corrections. Corrections to the transcript of a
hearing should not be requested except to correct a material
substantive error in the transcription made at the hearing.
Issued by the Commission on February 17, 1995.
Margaret P. Crenshaw,
Secretary.
[FR Doc. 95-5114 Filed 3-3-95; 8:45 am]
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