[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Rules and Regulations]
[Pages 12116-12121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5115]
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POSTAL RATE COMMISSION
39 CFR Part 3001
[Docket No. RM95-1; Order No. 1042]
Rules of Practice and Procedure
AGENCY: Postal Rate Commission.
ACTION: Final rule.
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SUMMARY: In response to a petition filed by the United States Postal
Service, the Postal Rate Commission initiated this rulemaking to
consider re-enactment of special rules of practice and procedure
applicable to Postal Service requests to change Express Mail rates in
response to [[Page 12117]] market conditions. Interested persons were
invited to comment. 59 FR 65985-65987 (December 22, 1994). After
reviewing the comments submitted, the Commission has determined that
the published rules should be re-enacted, subject to a five-year sunset
provision.
EFFECTIVE DATE: These rules will become effective March 6, 1995 and
ending March 6, 2000 if not re-enacted by the Commission after the
provision of an opportunity for public comment.
ADDRESSES: Correspondence should be sent to Margaret P. Crenshaw,
Secretary of the Commission, 1333 H Street NW, Washington, DC 20268-
0001.
FOR FURTHER INFORMATION CONTACT: Stephen Sharfman, Legal Advisor
(telephone: (202) 789-6820).
SUPPLEMENTARY INFORMATION: On August 15, 1994, the United States Postal
Service filed a petition for institution of a rulemaking to re-enact
Commission rules that establish special procedures for considering
Postal Service requests to change Express Mail rates in response to
market conditions. These rules, codified at 39 CFR 3001.57 through
3001.57c, were adopted as the culmination of the Commission's Docket
No. RM88-2 in August, 1989; at that time, the Commission included a
five-year sunset provision in 39 CFR 3001.57(b). Order No. 836, 54 FR
33681 (August 16, 1989). Consequently, by their own terms the rules
ceased to be effective in mid-August of 1994.
The Commission granted the Postal Service's petition and began this
rulemaking on December 14, 1994. Order No. 1038; Notice of Proposed
Rulemaking, 59 FR 65985-87 (December 22, 1994). In its Notice of
Proposed Rulemaking, the Commission published the pre-existing rules,
stated its preliminary agreement with the Postal Service's position
that the Express Mail market response rules should be retained, and
established January 23, 1995, as the due date for comments by
interested parties. Id. at 65985.
Two sets of comments were submitted in response to the Notice of
Proposed Rulemaking in this docket.1 United Parcel Service (UPS),
a competitor of the Postal Service in the expedited delivery market,
opposes re-enactment of the rules because: (1) Circumstances have
changed since their initial adoption in a manner that allegedly negates
any possible justification for their continued existence; (2) the rules
are unnecessary because other available Commission rules provide
adequate avenues for expedited consideration of specific Postal Service
rate requests; and (3) the rules allegedly are contrary to the letter
and spirit of the Postal Reorganization Act, the Administrative
Procedure Act, and fundamental considerations of due process. The
Commission's Office of the Consumer Advocate (OCA) opposes re-enactment
on similar grounds: that there is less demonstrable need for, and
opportunity to use, the rules than was anticipated when they were
adopted in Docket No. RM88-2; and that it would be more efficient to
devise comprehensive rules of procedure applicable to any class of
mail, in the context of the Commission's Procedural Streamlining
Inquiry, Docket No. RM95-2. Because these comments raise a variety of
issues, the latter will be grouped by category for consideration.
\1\Additionally, while no provision had been made for reply
comments, Advertising Mail Marketing Association (AMMA) submitted
reply comments on February 3, 1995, together with a motion for leave
to file such comments. In order to avoid prejudice to other parties
that may have been inclined to file replies, the Commission shall
grant AMMA's motion only in part, and will consider its comments
strictly as an expression of support for re-enactment of the pre-
existing rules.
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I. Alleged Legal Defects
Commenter United Parcel Service argues that certain features of
rules 57 through 57c violate pertinent portions of the Postal
Reorganization Act, the Administrative Procedure Act, and applicable
due process requirements. For the most part, these comments replicate
earlier arguments considered and rejected during the course of the
RM88-2 proceeding, and the Commission finds them equally unpersuasive
now.
UPS suggests that by contemplating the recommendation of Express
Mail rates near the level of estimated attributable costs, the market
response rules could yield rates which fail to recover the portion of
institutional costs ``reasonably assignable'' to Express Mail, in
contravention of 39 U.S.C. 3622(b)(3). UPS Comments at 7-8. UPS also
argues that the recommendation of such rates would produce an overall
rate schedule that fails to satisfy the ``fair and equitable'' standard
of Sec. 3622(b)(1). Id. at 8-9. However, these criticisms overlook the
special rationale on which the market response rules are premised, and
the particular restrictions on the rates which the Postal Service can
propose under the rules. The appropriate level of ``reasonably
assignable'' costs is determined by reference to the non-cost factors
in Sec. 3622(b);2 the Postal Service could invoke rules 57 through
57c only where one or more of the policies of the Act arguably applies
with such force as to justify a minimal contribution to institutional
costs.3 Additionally, the rules establish two different protective
rate floors which the Postal Service must observe in its requests.
Under section 57b(b), the Service is forbidden to propose rates less
than the greater of average per piece attributable costs: (1) As
determined in the most recent omnibus rate case, or (2) as estimated
for the most recent fiscal year for which information is available.
Section 57b(b)(2) also prohibits proposal of a rate ``for any rate cell
which is lower than the estimated test period attributable cost of
providing that rate cell with service.'' The Commission retained these
restrictions in the final rules adopted in Docket No. RM88-2, over the
objections of the Postal Service, in order ``to eliminate the risk that
new Express Mail rates would be a burden on other classes of mail[,]''
and to ensure ``that the relationships among the classes of mail--in
terms of contribution to institutional costs--are disturbed as little
as possible.'' Order No. 836 at 15, 13. Thus, the Commission has
already considered and accommodated the concerns raised by UPS, and
there is no reasonable basis for concern that re-enactment of the rules
would degrade the Commission's sound application of the Sec. 3622(b)
(1) and (3) factors.
\2\See National Association of Greeting Card Publishers v. U.S.
Postal Service, 462 U.S. 810, 834 (1983): ``The Rate Commission is
to assign remaining costs on the basis of the other eight factors
set forth by Sec. 3622(b).''
\3\Section 57a(c) requires that every formal request under
Secs. 57 through 57c ``contain an explanation of why the change
proposed by the Postal Service is a reasonable response to the
change in the market for expedited delivery services to which it is
intended to respond.''
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The Commission also rejects the claims of UPS that the market
response rules constitute ``a clear license to engage in unfair
competition with private sector enterprises, in violation of Section
3622(b)(4) [,]'' and that they ``violate the discrimination prohibition
in Section 403(c) of the Act'' by establishing a preference for Express
Mail users. UPS Comments at 9. During the course of the RM88-2
proceeding the Commission received comments from several parties--
including the Bureau of Competition of the Federal Trade Commission--
regarding the Postal Service's participation in the expedited parcel
delivery market. On the basis of that record, the Commission concluded
that there was no justification for:
* * * any finding that the Postal Service is so restricting the
ability of other firms to compete in the expedited delivery market
through use of the Private Express Statutes that it should not be
given even the potential [[Page 12118]] to change its rate more
quickly in response to developments in the market.
Notice of Proposed Rule, 54 FR 11404-11405 (March 20, 1989). The
Commission also stated its resolve to ``take into account the effect on
the market'' when recommending rates under the expedited rules. Id. No
commenter in this docket claims that the Postal Service has engaged in
anti-competitive conduct in the expedited delivery market in the
interim.
As to the claim of preference in violation of Sec. 403(c), the
Commission concluded in RM88-2 that adoption of expedited procedural
rules would not constitute ``undue or unreasonable'' discrimination
because ``Express Mail is the only class for which evidence supporting
such rules has been given.'' Id. at 11399. Lacking evidence of a need
to change rates for other classes expeditiously in response to
competition, and of the likely impact such rate changes would have on
postal finances, the Commission found it unreasonable to reject the
proposed rules for Express Mail. The Commission also alluded to the
possibility of extending the applicability of those rules, ``[i]f it
later appears that similar procedures might be suitable for another
class. * * *'' Id. The Commission is in much the same posture in this
docket, but with the significant difference that Docket No. RM95-2 has
been initiated to consider ``potential mechanisms for expediting its
proceedings conducted under 39 U.S.C. 3624(a),'' which includes rate
change proceedings. See 59 FR 65987 (December 22, 1994). Consequently,
the Commission's prior conclusion that the rules for Express Mail pose
no undue preference problem is now reinforced by its contemporaneous
docket to consider similar mechanisms for other types of requests.
The Commission also finds no merit in the arguments that the rules
would operate in violation of the hearing requirements of the
Administrative Procedure Act, or would trench upon the due process
rights of intervenors. Contrary to those claims, the Postal Service
would be required to sustain its burden as proponent under rules 57
through 57c, beginning with the data filing requirements laid down in
Sec. 3001.57a. If the Commission concludes that the Service's
presentation poses one or more genuine issues of material fact, either
at the suggestion of an intervenor or on its own motion, a formal
hearing would be held. See Sec. 57b(e)(5). Only in the event that no
such issue was identified--an extremely rare occurrence in the
Commission's institutional experience--would a hearing not be held. In
the absence of any genuine issue of material fact, the Commission would
be under no obligation to conduct a hearing.4
\4\See Costle v. Pacific Legal Foundation, 445 U.S. 198, 213-16
(1980).
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The discovery and hearing procedures established in rule 57b
admittedly require prompt action by all parties involved, in
furtherance of the declared purpose ``to allow for consideration of
Express Mail Market Response Rate Requests within 90 days, consistent
with the procedural due process rights of interested parties.''
Sec. 3001.57c. However, in fashioning these procedures in Docket No.
RM88-2, the Commission devoted considerable effort to striking a
workable balance between expedition and the due process rights of
interested parties. In response to comments, the Commission rejected
some of the expedited procedures proposed by the Postal Service and
supplemented others. Notice of Proposed Rulemaking (Second Notice), 54
FR 11401-11403 (March 20, 1989); Notice of Proposed Rulemaking (Third
Notice), 54 FR 25137-25139 (June 13, 1989). Nor did the Commission
overlook the need for flexibility in administering the expedited
procedural schedule. It stated: ``If any particular date causes
difficulty, the Presiding Officer can grant an extension of time * * *.
When the Commission reviews its experience with these rules, we will be
prepared to judge whether any of the scheduled dates should be changed
in the rules.'' Third Notice of Proposed Rulemaking, 54 FR 25139.
Consequently, at this time the Commission finds no basis for concern
that re-enactment of these carefully considered rules would jeopardize
the due process rights of participants in proceedings under rules 57
through 57c.
II. Institutional Issues
United Parcel Service also comments that re-enactment of the rules
would be inappropriate because they allegedly pose a ``risk of
seriously undermining Congress' carefully crafted division of authority
between the Commission and the Postal Service.'' UPS Comments at 15.
UPS suggests that the rules would improperly delegate the Commission's
responsibility for determining attributable costs to the Postal
Service; could be invoked to nullify the Commission's rate
recommendations for Express Mail in omnibus rate decisions and
introduce reduced rates that could be in effect for years; and would
serve as ``a device for selectively deregulating postal ratemaking in
the case of only one favored class of mail.'' Id. at 15-16. In the
Commission's view, these comments mischaracterize the purpose and
intended operation of the Express Mail market response rules.
As the source and repository of the raw data from which cost
estimates are derived, the Postal Service necessarily provides the
principal input to the process of determining attributable cost levels.
The Commission's functions thereafter are to provide a forum in which
interested parties can probe and challenge the Service's estimates; and
to decide whether the Service's proposals are supported by substantial
evidence and consistent with the Postal Reorganization Act's policies
and factors. Rules 57 through 57c provide expedited procedures, but
also preserve these essential functions. They do not allow the
Commission to recommend Express Mail rates that are unsupported by
credible cost evidence or otherwise inconsistent with statutory
factors. See the rule for decision in Sec. 3001.57c. They will not be
allowed to become a substitute for scrutiny in omnibus rate cases, as
the Commission clearly stated in Docket No. RM88-2. See Second Notice
of Proposed Rulemaking, 54 FR 11403 (March 20, 1989). Therefore, in no
meaningful sense can they be characterized as a vehicle for
deregulating Express Mail rates.
III. The Question of Need
Both United Parcel Service and the Office of the Consumer Advocate
take the position that, because of the Postal Service's failure to
invoke rules 57 through 57c during their initial five-year period of
effectiveness, and changed circumstances in the expedited delivery
market in that time, there is no demonstrable need for re-enacting the
rules. On the basis of available information, the Commission believes
that this conclusion may be incorrect, and at the very least is
premature. While the expedited delivery market doubtless has changed in
five years, the Postal Service appears to be correct in its
characterization that, ``[t]he most important feature that
distinguishes competitors is price.'' Postal Service Petition at 4; see
PRC Op. R94-1, November 30, 1994, para. 5402. In this fiercely
competitive market, it is possible that expeditious adjustments in
Express Mail rates may be useful to sustain the viability of that
service to meet future competitive exigencies.5
[[Page 12119]] Consequently, the Commission will re-enact rules 57
through 57c for an additional five-year period.6
\5\The Commission cannot agree with the contentions of UPS and
OCA that the current modest contribution of Express Mail to the
institutional costs of the Postal Service represents an
``irreducible minimum'' (OCA Comments at 4), leaving no room for
operation of the market response rules. In recommending a 119
percent coverage for Express Mail in the recent omnibus rate case--a
target ``slightly lower than that proposed by the Postal Service''--
the Commission neither stated nor suggested that this figure was an
``irreducible minimum.'' See PRC Op. R94-1, para. 4052. On the
contrary, the finding that 119 percent is an acceptable coverage
factor for Express Mail at this time suggests (all other things
being equal) that market response rates nearer average estimated
attributable costs would be more acceptable than if a higher
coverage factor had been recommended in the last omnibus rate case.
\6\For the sake of clarity, section 57(b) of the re-enacted
rules has been amended by deletion of the word ``initially'' from
its first sentence.
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IV. Regulatory Evaluation
It has been determined pursuant to 5 U.S.C. 605(b) that these rules
will apply exclusively to the United States Postal Service in
proceedings conducted by the Postal Rate Commission, and to parties who
choose to participate in those proceedings. Therefore, it is certified
that these rules will not have a significant impact on a substantial
number of small entities under the terms of the Regulatory Flexibility
Act, 5 U.S.C. 501 et seq. Because these rules will only apply to the
Postal Service and other participants in Commission proceedings, it has
also been determined that these rules do not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment
pursuant to Executive Order 12612. Inasmuch as the rules impose
information-gathering and reporting requirements exclusively upon the
United States Postal Service for the purpose of conducting postal rate
proceedings, they do not contain any information collection
requirements as defined in the Paperwork Reduction Act [44 U.S.C.
3502(4)], and consequently the review provisions of 44 U.S.C. 3507 and
the implementing regulations in 5 CFR part 1320 do not apply.
List of Subjects in 39 CFR Part 3001
Administrative practices and procedure, Postal Service.
For the 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 39 CFR part 3001 continues to read as
follows:
Authority: 39 U.S.C. 404(b), 3603, 3622-24, 3661, 3662, 84 Stat.
759-62, 764, 90 Stat. 1303; [5 U.S.C. 553], 80 Stat. 383.
2. Sections 3001.57 through 3001.57c are added to subpart B to read
as follows:
Sec. 3001.57 Market Response Rate Requests for Express Mail service--
purpose and duration of rules.
(a) This section and Secs. 3001.57a through 3001.57c only apply in
cases in which the Postal Service requests an expedited recommended
decision pursuant to section 3622 of the Postal Reorganization Act on
changes in rates and fees for Express Mail service, where the proposed
changes are intended to respond to a change in the market for expedited
delivery services for the purpose of minimizing the loss of Express
Mail contribution to institutional costs recommended in the most recent
omnibus rate case. These rules set forth the requirements for filing
data in support of such rate proposals and for providing notice of such
requests, and establish an expedited procedural schedule for evaluating
Market Response Rate Requests. These rules may not be used when the
Postal Service is requesting changes in Express Mail rates as part of
an omnibus rate case. Further explanation concerning these rules can be
found at 54 FR 11394-11413 (March 20, 1989), 54 FR 25132-42 (June 13,
1989) and PRC Order No. 836.
(b) This section and Secs. 3001.57a through 57c are to be effective
for the limited period of five years from the date of their adoption by
the Commission. During that period the Commission will continue to
analyze the need for these rules to enable the Postal Service to
respond to changes in the market for expedited delivery services, and
the impact of these procedures on Postal Service proposals. These rules
will cease to be effective at the end of this period unless they have
been reissued by the Commission following a Notice of Proposed
Rulemaking published in the Federal Register which provides an
appropriate opportunity for public comments.
Sec. 3001.57a Market Response Rate Requests--data filing requirements.
(a) Each formal request made under the provisions of Secs. 3001.57
through 3001.57c shall be accompanied by such information and data as
are necessary to inform the Commission and the parties of the nature
and expected impact of the change in rates proposed. Except for good
cause shown, the information specified in paragraphs (c) through (i) of
this section shall also be provided with each request.
(b) Except as otherwise expressly provided in this section, the
information required by Sec. 3001.54 (b) through (r) must be filed only
for those subclasses and services for which the Postal Service requests
a change in rates or fees. Test period volume, cost, and revenue
estimates presented in satisfaction of rule 57a shall be for four
postal quarters beginning after the filing date of the request. The
cost roll-forward may be developed by extending the cost forecasting
model used in the last omnibus rate case (utilizing available actual
data). Volume and revenue estimates required by these rules shall
utilize, to the extend practicable, the factors identified in rule
54(j)(6), and must be fully explained, with all available supporting
documentation supplied, but they need not be econometrically derived.
(c) Every formal request made under the provisions of Secs. 3001.57
through 3001.57c shall contain an explanation of why the change
proposed by the Postal Service is a reasonable response to the change
in the market for expedited delivery services to which it is intended
to respond.
(d) Every formal request made under the provisions of Secs. 3001.57
through 3001.57c shall be accompanied by the then effective Domestic
Mail Classification Schedule sections which would have to be altered in
order to implement the changes proposed by the Postal Service, and,
arranged in a legislative format, the text of the replacement Domestic
Mail Classification Schedule sections the Postal Service proposes.
(e) In addition to the required test period cost estimates, every
formal request made under the provisions of Secs. 3001.57 through
3001.57c shall be accompanied by a statement of the attributable costs
by segment and component for Express Mail service determined in
accordance with the attributable cost methodology adopted by the
Commission in the most recent omnibus rate case, for the base year used
in that case, and for each fiscal year thereafter for which cost data
is available. If the Postal Service believes that an adjustment to that
methodology is warranted it may also provide costs using alternative
methodologies as long as a full rationale for the proposed changes is
provided.
(f) Each formal request made under the provisions of Secs. 3001.57
through 3001.57c shall include a description of all operational
changes, occurring since the most recent omnibus rate case, having an
important impact on the attributable cost of Express Mail. The Postal
Service shall include an analysis and estimate of the cost impact of
each such operational change.
(g) Every formal request made under the provisions of Secs. 3001.57
through 3001.57c shall be accompanied by a statement of the actual
Express Mail [[Page 12120]] revenues of the Postal Service from the
then effective Express Mail rates and fees for the most recent four
quarters for which information is available.
(h) Each formal request made under the provisions of Secs. 3001.57
through 3001.57c shall be accompanied by a complete description of the
change in the market for expedited delivery services to which the
Postal Service proposal is in response, a statement of when that change
took place, the Postal Service's analysis of the anticipated impact of
that change on the market, and a description of characteristics and
needs of customers and market segments affected by this change which
the proposed Express Mail rates are designed to satisfy.
(i) Each formal request made under the provisions of Secs. 3001.57
through 3001.57c shall include estimates, on a quarterly basis, of test
period volumes, revenues, and attributable costs determined in
accordance with the attributable cost methodology adopted by the
Commission in the most recent omnibus rate case for each Express Mail
service for which rate changes are proposed assuming:
(1) rates remain at their existing levels, and
(2) rates are changed after 90 days to the levels suggested in the
request.
(j)(1) Each formal request made under the provisions of
Secs. 3001.57 through 3001.57c shall be accompanied by the following
information, for each quarter following the base year in the most
recent omnibus rate case:
(i) Estimated volume by rate cell, for each Express Mail service;
(ii) Total postage pounds of Express Mail rated at:
(A) up to \1/2\ pound,
(B) \1/2\ pound up to 2 pounds,
(C) 2 pounds up to 5 pounds; and
(iii) Total pounds of Express Mail and of each other subclass of
mail carried on hub contracts.
(2) In each instance when rates change based on a proceeding under
the provisions of Secs. 3001.57 through 3001.57c the Postal Service
shall provide, one year after the conclusion of the test period, the
data described in Sec. 3001.57a(j)(1)(i)-(iii), for each of the four
quarters of the test period.
(k) Each formal request made under the provisions of Secs. 3001.57
through 3001.57c shall include analyses to demonstrate:
(1) that the proposed rates are consistent with the factors listed
in 39 U.S.C. 3622(b),
(2) that the proposed rate changes are in the public interest and
in accordance with the policies and applicable criteria of the Act, and
(3) that the proposed rates will preserve, or minimize erosion of,
the Express Mail contribution to institutional costs recommended in the
most recent omnibus rate case.
(l) Each formal request made under the provisions of Secs. 3001.57
through 3001.57c shall be accompanied by a certificate that service of
the filing in accordance with Sec. 3001.57b(c) has been made.
Sec. 3001.57b Market Response Rate Requests--expedition of public
notice and procedural schedule.
(a) The purpose of this section is to provide a schedule for
expediting proceedings when a trial-type hearing is required in a
proceeding in which the Postal Service proposes to adjust rates for
Express Mail service in order to respond to a change in the market for
expedited delivery services.
(b) The Postal Service shall not propose for consideration under
the provisions of Secs. 3001.57 through 3001.57c rates lower than:
(1) the average per piece attributable cost for Express Mail
service determined in the most recent omnibus rate case, or
(2) the average per piece attributable cost for Express Mail
service as determined by the Postal Service in accordance with
Sec. 3001.57a(e) for the most recent fiscal year for which information
is available, whichever is higher. Neither shall the Postal Service
propose a rate for any rate cell which is lower than the estimated test
period attributable cost of providing that rate cell with service.
(c)(1) Persons who are interested in participating in Express Mail
Market Response Rate Request cases may register at any time with the
Secretary of the Postal Rate Commission, who shall maintain a publicly
available list of the names and business addresses of all such Express
Mail Market Response Registrants. Persons whose names appear on this
list will automatically become parties to each Express Mail Market
Response rate proceeding. Other interested persons may intervene
pursuant to Sec. 3001.20 within 28 days of the filing of a formal
request made under the provisions of Secs. 3001.57 through 3001.57c.
Parties may withdraw from the register or a case by filing a notice
with the Commission.
(2) When the Postal Service files a request under the provisions of
Secs. 3001.57 through 3001.57c it shall on that same day effect service
by hand delivery of the complete filing to each Express Mail Market
Response Registrant who maintains an address for service within the
Washington metropolitan area and serve the complete filing by Express
Mail service on all other Registrants. Each Registrant is responsible
for insuring that his or her address remains current.
(3) When the Postal Service files a request under the provisions of
Secs. 3001.57 through 3001.57c, it shall on that same day send by
Express Mail service to all participants in the most recent omnibus
rate case a notice which briefly describes its proposal. Such notice
shall indicate on its first page that it is a notice of an Express Mail
Market Response Rate Request to be considered under Secs. 3001.57
through 3001.57c, and identify the last day for filing a notice of
intervention with the Commission.
(d) In the absence of a compelling showing of good cause, the
Postal Service and parties shall calculate Express Mail costs in
accordance with the methodologies used by the Commission in the most
recent omnibus rate case. In the analysis of customers' reactions to
the change in the market for expedited delivery services which prompts
the request, the Postal Service and parties may estimate the demand for
segments of the expedited delivery market and for types of customers
which were not separately considered when estimating volumes in the
most recent omnibus rate case.
(e) (1) In the event that a party wishes to dispute as an issue of
fact whether the Postal Service properly has calculated Express Mail
costs or volumes (either before or after its proposed changes), or
wishes to dispute whether the change in the market for expedited
delivery services cited by the Postal Service has actually occurred, or
wishes to dispute whether the rates proposed by the Postal Service are
a reasonable response to the change in the market for expedited
delivery services or are consistent with the policies of the Postal
Reorganization Act, that party shall file with the Commission a request
for a hearing within 28 days of the date that the Postal Service files
its request. The request for hearing shall state with specificity the
fact or facts set forth in the Postal Service's filing that the party
disputes, and when possible, what the party believes to be the true
fact or facts and the evidence it intends to provide in support of its
position.
(2) The Commission will not hold hearings on a request made
pursuant to Secs. 3001.57 through 3001.57c unless it determines that
there is a genuine issue of material fact to be resolved, and that a
hearing is needed to resolve this issue.
(3) Whether or not a hearing is held, the Commission may request
briefs and/or argument on an expedited schedule, but in any
circumstance it will issue its [[Page 12121]] recommended decision as
promptly as is consistent with its statutory responsibilities.
(4) In order to assist in the rapid development of an adequate
evidentiary record, all participants may file appropriate discovery
requests on other participants as soon as an Express Mail Market
Response Rate Request is filed. Answers to such discovery requests will
be due within 10 days. Objections to such discovery requests must be
made within 10 days in the form of a Motion to Excuse from Answering,
with service on the questioning participant made by hand, facsimile, or
expedited delivery. Responses to Motions to Excuse from Answering must
be submitted within seven days, and should such a motion be denied, the
answers to the discovery in question are due within seven days of the
denial thereof. It is the Commission's intention that parties resolve
discovery disputes informally between themselves whenever possible. The
Commission, therefore, encourages the party receiving discovery
requests considered to be unclear or objectionable to contact counsel
for the party filing the discovery requests whenever further
explanation is needed, or a potential discovery dispute might be
resolved by means of such communication.
(5) If, either on its own motion, or after having received a
request for a hearing, the Commission concludes that there exist one or
more genuine issues of material fact and that a hearing is needed, the
Commission shall expedite the conduct of such record evidentiary
hearings to meet both the need to respond promptly to changed
circumstances in the market and the standards of 5 U.S.C. 556 and 557.
The procedural schedule, subject to change as described in paragraph
(e)(6) of this section, is as follows: Hearings on the Postal Service
case will begin 35 days after the filing of an Express Mail Market
Response Rate Request; parties may file evidence either in support of
or in opposition to the Postal Service proposal 49 days after the
filing; hearings on the parties' evidence will begin 56 days after the
filing; briefs will be due 70 days after the filing; and reply briefs
will be due 77 days after the filing.
(6) The Presiding Officer may adjust any of the schedule dates
prescribed in (e)(5) of this section in the interests of fairness, or
to assist in the development of an adequate evidentiary record.
Requests for the opportunity to present evidence to rebut a submission
by a participant other than the Postal Service should be filed within
three working days of the receipt of that material into the evidentiary
record, and should include a description of the evidence to be offered
and the amount of time needed to prepare and present it. Requests for
additional time will be reviewed with consideration as to whether the
requesting participant has exercised due diligence, and whether the
requesting participant has been unreasonably delayed from fully
understanding the proposal.
Sec. 3001.57c Express Mail Market Response--rule for decision.
The Commission will issue a recommended decision in accordance with
the policies of 39 U.S.C., and which it determines would be a
reasonable response to the change in the market for expedited delivery
services. The purpose of Secs. 3001.57 through 3001.57c is to allow for
consideration of Express Mail Market Response Rate Requests within 90
days, consistent with the procedural due process rights of interested
persons.
Issued by the Commission on February 17, 1995.
Margaret P. Crenshaw,
Secretary.
[FR Doc. 95-5115 Filed 3-3-95; 8:45 am]
BILLING CODE 7710-FW-P
