[Federal Register Volume 62, Number 116 (Tuesday, June 17, 1997)]
[Notices]
[Pages 32832-32837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15810]
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POSTAL RATE COMMISSION
[Order No. 1184; Docket Nos. MC97-4 and C97-1]
Bulk Parcel Return Service and Shipper-Paid Forwarding
Classifications and Fees; and Complaint of the Advertising Mail
Marketing Association Regarding Charges for Standard (A) Merchandise
Returns; Notice of Request for Changes in Domestic Mail Classification
Schedule Provisions and Rates Affecting Forwarding and Return of
Standard (A) Parcels and Order Instituting Proceedings
Issued June 11, 1997.
Before Commissioners: Edward J. Gleiman, Chairman; H. Edward
Quick, Jr., Vice Chairman; George W. Haley; W.H. ``Trey'' LeBlanc
III.
Notice is hereby given that on June 6, 1997, the United States
Postal Service filed a Request with the Postal Rate Commission pursuant
to section 3623 of the Postal Reorganization Act, 39 U.S.C. 101 et
seq., for a recommended decision on proposed changes in the Domestic
Mail Classification Schedule (DMCS). The proposed revisions also
include proposed new rates and fees. The Request includes attachments
and is supported by the testimony of two witnesses and two library
references. It is on file in the Commission Docket Room and is
available for inspection during the Commission's regular business
hours.
Contents of the filing. The Postal Service requests that the
Commission consider two changes affecting the forwarding and return of
Standard (A) parcels that were initially considered in Docket No. MC97-
2. It requests that Bulk Parcel Return Service (BPRS) and Shipper Paid
Forwarding (SPF) be established. Under current practice, forwarding and
return of bulk Standard (A) parcels is obtained by endorsing mailpieces
``Forwarding and Return Postage Guaranteed'' or ``Forwarding and Return
Postage Guaranteed, Address Correction Requested.'' At the time that a
parcel is returned, postage is paid for return service and indirectly
paid for forwarding service, through a weighted fee that is 2.472 times
the applicable single piece rate. The 2.472 weighting factor is the sum
of one and 1.472. One, multiplied by the single piece rate, is intended
to directly cover the cost of return service. 1.472 is the average
number of pieces that are forwarded for every piece that is returned.
Multiplying 1.472 times the single piece rate is intended to cover the
cost of return service. This weighted fee can result in a charge for
forwarding and return that is prohibitively high, according to the
Postal Service. To provide continuity mailers other options, the Postal
Service proposes to establish SPF and BPRS.
SPF would allow mailers to pay forwarding fees (the applicable
single piece rate) directly, through the use of the tracking
capabilities of the existing electronic Address Change Service (ACS).
Only machinable parcels with the required endorsements would be
eligible. An advance deposit would be required.
BPRS, through bulk handling of returned parcels, would lower the
average cost of return service. BPRS mailers would arrange to pick up
their returned parcels at a specified frequency, at a designated postal
facility, or would have their returned parcels delivered to them in
bulk by the Postal Service. Only machinable parcels weighing less than
one pound, with the required endorsements, would be eligible for BPRS.
A minimum of 50,000 returned parcels per year would be required. BPRS
mailers would be required to document their returned parcel volume, and
to maintain an advance deposit account. A flat $1.75 per-piece fee and
an annual permit fee of $85 is proposed. SPF and BPRS service could be
combined.
The Postal Service's request is supported by the testimony of
Postal Service witness Pham (USPS-T-1), which analyzes the costs of
BPRS, and the testimony of Postal Service witness Adra (USPS-T-2),
which addresses the consistency of the proposed changes in
classifications and fees for SPF and BPRS with the applicable standards
of the Postal Reorganization Act. The Postal Service asserts that
neither SPF nor BPRS would alter existing forwarding or return services
or rates for Standard (A) parcels. It also asserts that establishing
BPRS would have little financial impact on postal costs and revenues.
It contends that it would reduce overall postal costs by approximately
$4 million, and Standard (A) mail's contribution to institutional costs
by less that $1 million. See USPS-T-2, Exhibit USPS-2A.
The Postal Service's request is accompanied by two library
references. The first (USPS-LR-1/MC97-4) is the FY 1996 Cost & Revenue
Analysis Report. The second (USPS-LR-2/MC97-4) is a mailer survey
designed to estimate the volume impact of BPRS.
Proposed DMCS provisions. The Postal Service's Request proposes
changes in the current Domestic Mail Classification Schedule (DMCS). It
proposes establishing separate Special Service Schedules SS-21, for
Bulk Parcel Return Service, and SS-22, for Shipper-Paid Forwarding. The
DMCS is codified at 39 CFR part 3001, subpart C, Appendix A. In
Attachment A to its Request, the Postal Service displays the changes it
proposes in the version of the DMCS currently in effect. These proposed
revisions accompany this Notice as Attachment A.
Proposed rate and fee schedules. In Attachment B to its Request,
the Postal Service displays changes it proposes to the various rate and
fee schedules currently in effect. It proposes to establish Schedule
SS-21, which would specify a flat fee for BPRS of $1.75 per piece; and
to specify a BPRS permit fee of $85, under existing Schedule 1000. The
Postal Service's requested changes in rates and fees accompany this
Notice as Attachment B.
Procedural proposals. The Postal Service's Request is accompanied
by a Motion of the United States Postal Service to Establish Procedural
Mechanisms Concerning Settlement. In it, the Postal Service observes
that the SPF and BPRS proposals in this docket
[[Page 32833]]
are identical to those that were included in the Postal Service's
Request in Docket No. MC97-2. It notes that before that docket was
withdrawn, intervenors had approximately seven weeks in which to
conduct discovery. It expresses a hope that any additional discovery
will be begun quickly after intervention, limited in duration and
scope, and designed to determine whether intervenors can join, in whole
or in part, in the proposed Stipulation and Agreement that accompanies
its Request.
The proposed Stipulation and Agreement recites that Advertising
Mail Marketing Association (AMMA) filed a section 3662 complaint in
October of 1996 alleging that the Standard (A) single piece rate
charged to the recipients of returned Standard (A) parcels violates the
policies of the Postal Reorganization Act, that AMMA withdrew its
complaint in anticipation that MC97-2 would address this issue, that
AMMA asked that the Commission revive its complaint after the Postal
Service withdrew its Request in MC97-2, and that the Postal Service
filed its Request in this docket, again proposing SPF and BPRS.
The proposed Stipulation and Agreement would stipulate that the
Request, attachments, and accompanying testimony and exhibits
constitute substantial and sufficient evidence in support of the SPF
and BPRS proposals, and that those proposals are consistent with the
policies of 39 U.S.C. 3622 and 3623. It provides that the methods of
classification or ratemaking, or determination of cost of service, are
stipulated to only for purposes of this docket. The proposed
Stipulation and Agreement is signed by the Postal Service and AMMA.
The Postal Service proposes that the Order that institutes this
proceeding enter the proffered testimony and the Stipulation and
Agreement in the record. It also proposes that the Order allow
intervention until June 27, 1997, require statements of intent to
contest specific issues from intervenors by July 8, 1997, require that
any discovery undertaken be completed by July 18, 1997, that any
testimony or pleadings opposing the Stipulation and Agreement be filed
by August 4, 1997, and that any responses be required by August 11,
1997.
The Postal Service accompanies its Request by a motion for waiver
of many of the filing requirements of Rules 64 and 54, on the ground
that these proposals are narrow in scope and limited in their effect on
other classes and services. The Postal Service also includes a motion
for consolidation of this docket with Docket No. C97-1.
Ruling on motion to establish settlement procedures. It is
Commission policy to facilitate settlement of issues. In view of the
very limited scope and effect of these proposals, and the willingness
of the complainant in Docket No. C97-1 to settle, the Commission
recognizes the potential for expeditious settlement of this docket. In
view of the active litigation of these proposals in Docket No. MC97-2
by others, however, it appears that the optimal approach is one that
will accommodate either settlement, or such litigation as the
intervenors choose to pursue, with the utmost expedition. The
Commission, therefore, will adopt a two-track approach, designed to
simultaneously encourage settlement, and speed any litigation that
intervenors deem necessary. The Commission will schedule a settlement
conference for Monday, July 14, 1997, in the Commission hearing room at
1333 H Street, NW, Washington, DC beginning at 9:30 a.m. The Postal
Service will serve as settlement coordinator.
Participants will have until July 1, 1997, to intervene.
Intervenors may commence any desired discovery immediately upon filing
a Notice of Intervention. The Commission will schedule a prehearing
conference for the afternoon of July 14, 1997, at 1:30 p.m., following
the morning settlement conference. At the prehearing conference, the
Postal Service will be asked to report on the results of the settlement
conference. At that time, if intervenors believe that there are legal
or factual issues that are an obstacle to settlement, they will be
asked to identify them, and indicate whether they wish to present
evidence on those issues. Further procedural scheduling will depend on
the results of the prehearing conference.
Rulings on remaining motions. In its Motion of United States Postal
Service for Waiver of Certain Filing Requirements Incorporated in the
Commission's Rules of Practice and Procedure, accompanying its Request,
the Postal Service seeks waiver of the requirement to provide the
information specified in Rules 64(b)(3), 64(d), and 64(h), and Rules
54(b)(3), 54(f)-(h), 54(j), and 54(l), to the extent that they apply,
and a blanket waiver of other filing requirements that its Request does
not fully satisfy. Rule 64(h)(3) provides that these requirements may
be waived if the Commission determines that it has been demonstrated
that the proposed changes in the classification schedule do not
significantly change rates and fees or cost-revenue relationships
referred to in the rule.
The SPF and BPRS proposals would not change current rates and fees
for any existing category of mail or special service, including
Standard (A) mail. Because they would alter total costs by only about
$4 million out of more than $55 billion, and reduce the Standard (A)
single-piece contribution to institutional costs by less than one
percent, these proposals would not appear to have a significant impact
on cost and revenue relationships of the various subclasses. Therefore,
a waiver of these requirements appears to be warranted under the
Commission Rules of practice, including Rules 64(h)(3) and 54(r).
Accordingly, it will be granted.
In its Motion of the United States Postal Service to Consolidate
Proceedings, filed with its Request, the Postal Service argues that the
filing of its Request in this docket Docket No. C97-1 returns to the
status that it held just prior to the withdrawal of the Request in
Docket No. MC97-2. At that time Docket No. C97-1 was being held in
abeyance. It argues that resolution of the issues in the current docket
would resolve the identical issues in C97-1, and therefore it is
appropriate to consolidate Docket No. C97-1 with the current docket.
The apparent agreement by the complainant in C97-1 with the resolution
of those issues proposed by the Postal Service in the current docket
confirms the appropriateness of the Postal Service's request.
Therefore, it will be granted.
Also filed with the Postal Service's Request is a Motion of the
United States Postal Service Seeking Leave to File Facsimile Copy of
Signature Page as Attachment to Stipulation and Agreement. The Motion
alleges sufficient grounds for granting the leave that it requests.
Intervention. Participation in Commission proceedings generally
takes the form of either full intervention or limited participation.
See sections 20 and 20a of the Commission rules of practice (39 CFR
3001.20 and .20a). For those wishing to express their views informally,
without incurring the obligations that attach to the other two forms of
participation, commenter status is available. See section 20b (39 CFR
3001.20b). Those wishing to be heard in this matter as either a full
intervenor or limited participant are directed to file a written notice
of intervention in conformance with section 20(b) or 20a(a),
identifying the status they intend to assume and affirmatively stating
how actively they expect to participate. In addition, intervenors are
requested to
[[Page 32834]]
provide a telephone number, facsimile number, and e-mail address if
available.
Notices of intervention should be sent to the attention of Margaret
P. Crenshaw, Secretary of the Commission, 1333 H Street, NW, Suite 300,
Washington, DC 20268-0001, and are to be filed on or before July 1,
1997. Commenter status does not require a notice of intervention.
Representation of the general public. In conformance with section
3624(a) of title 39, the Commission designates W. Gail Willette,
Director of the Office of the Consumer Advocate (OCA), to represent the
interests of the general public in this proceeding. Pursuant to this
designation, Ms. Willette will direct the activities of Commission
personnel assigned to assist her and, when requested, will supply their
names for the record. Neither Ms. Willette nor any of the assigned
personnel will participate in or provide advice on any Commission
decision in this proceeding.
Special rules of practice. Special Rules of Practice are set forth
in Attachment C. These Special Rules are an amalgam of the non-
controversial portions of the Special Rules used Docket Nos. MC97-2,
and MC96-3. Participants are to follow these Special Rules during this
proceeding or to submit requests for waiver or modification of any of
these rules.
Docket Room operations. Documents may be filed with the
Commission's docket section Monday through Friday between 8 a.m. and 5
p.m. Questions about docket room operations should be directed to Ms.
Peggie Brown (at 202-789-6847) or Ms. Joyce Taylor (at 202-789-6846).
It is ordered:
1. The Commission will sit en banc in this proceeding.
2. Notices of intervention shall be filed no later than July 1,
1997.
3. A settlement conference will be held on July 14, 1997, beginning
at 9:30 a.m. in the Postal Rate Commission hearing room, 1333 H Street,
NW., Suite 300, Washington, DC 20268-0001.
4. A prehearing conference will be held on July 14, 1997, beginning
at 1:30 p.m., in the Postal Rate Commission hearing room, 1333 H
Street, N.W., Suite 300, Washington, D.C., 20269-0001.
5. W. Gail Willette, Director of the Commission's Office of the
Consumer Advocate, is designated to represent the interest of the
general public in this proceeding.
6. The Motion of the United States Postal Service to Establish
Procedural Mechanisms Concerning Settlement, filed June 6, 1997, is
granted to the extent described in the body of this order.
7. The Motion of the United States Postal Service to Consolidate
Proceedings, filed June 6, 1997, is granted.
8. The Motion of the United States Postal Service Seeking Leave to
File Facsimile Copy of Signature Page as Attachment to Stipulation and
Agreement, filed June 6, 1997, is granted.
9. The Motion of the United States Postal Service for Waiver of
Certain Filing Requirements Incorporated in the Commission's Rules of
Practice and Procedure, filed June 6, 1997, is granted.
10. The Secretary shall cause this Notice and Order to be published
in the Federal Register.
By the Commission.
Margaret P. Crenshaw,
Secretary.
Attachment A--Requested Changes in the Domestic Mail Classification
Schedule
In this Request, the Postal Service asks the Commission to
recommend certain changes in the Domestic Mail Classification Schedule
(DMCS). The changes requested herein alter the DMCS recommended by the
Commission on November 29, 1978, adopted by decision of the Governors
and implemented by resolution of the Board of Governors on April 3,
1979, effective April 15, 1979, and as amended from time-to-time, most
recently by the Decision of the Governors on the Recommended Decision
of the Postal Rate Commission on Special Services Fees and
Classifications, Docket No. MC96-3, (Special Services Decision) as
implemented by Resolution 97-7 of the Board of Governors, and the
Decision of the Governors on the Recommended Decision of the Postal
Rate Commission on the Experimental Nonletter-Size Business Reply Mail
Categories and Fees, Docket No. MC97-1 (BRM Decision), as implemented
by Resolution 97-8 of the Board of Governors. The current DMCS (which
is published in part at 39 CFR part 3001, subpart C, appendix A, in
part as Attachment A to the Special Services Decision (62 FR 26,099),
in part as Attachment A to the BRM Decision (62 FR 25,756), and in part
as Attachment B to the Decision of the Governors of the United States
Postal Service on the Recommended Decision of the Postal Rate
Commission on Nonprofit Standard Mail, Nonprofit Enhanced Carrier Route
Standard Mail, Nonprofit Periodicals, and Within County Periodicals,
Docket No. MC96-2 (61 FR 42,464)), is the basis for the proposed
changes in this Request.
Proposed additions to text of the classification schedule are in
italics; proposed deletions are in brackets. The changes in the DMCS
requested by the Postal Service are as follows:
350 DEPOSIT AND DELIVERY
* * * * *
353 Forwarding and Return
353.1 Single Piece, Regular, Enhanced Carrier Route, Nonprofit and
Nonprofit Enhanced Carrier Route Subclasses (Section 321)
Undeliverable-as-addressed Standard Mail mailed under section 321
will be returned on request of the mailer, or forwarded and returned on
request of the mailer. Undeliverable-as-addressed combined First-Class
and Standard pieces will be returned as prescribed by the Postal
Service. Except as provided in Schedule SS-21, [T]the Single Piece
Standard rate is charged for each piece receiving return only service.
Except as provided in Schedule SS-22, [C]charges for forwarding-and-
return service are assessed only on those pieces which cannot be
forwarded and are returned. Except as provided in Schedules SS-21 and
SS-22, [T]the charge for those returned pieces is the appropriate
Single Piece Standard rate for the piece plus that rate multiplied by a
factor equal to the number of section 321 Standard pieces nationwide
that are successfully forwarded for every one piece that cannot be
forwarded and must be returned.
* * * * *
360 ANCILLARY SERVICES
* * * * *
363 Regular and Nonprofit
Regular and Nonprofit subclass mail will receive the following
additional services upon payment of the appropriate fees:
------------------------------------------------------------------------
Service Schedule
------------------------------------------------------------------------
a. Bulk Parcel Return Service................................ SS-21
b. Shipper-Paid Forwarding................................... SS-22
------------------------------------------------------------------------
* * * * *
CLASSIFICATION SCHEDULE SS-21--BULK PARCEL RETURN SERVICE
21.01 Definition
21.010 Bulk Parcel Return Service provides a method whereby high-
volume parcel mailers may have undeliverable-as-addressed machinable
parcels returned to designated postal
[[Page 32835]]
facilities for pickup by the mailer at a predetermined frequency
prescribed by the Postal Service or delivered by the Postal Service in
bulk in a manner and frequency prescribed by the Postal Service.
21.02 Description of Service
21.020 Bulk Parcel Return Service is available only for the return
of machinable parcels, as defined by the Postal Service, initially
mailed under the following Standard Mail subclasses: Regular and
Nonprofit.
21.03 Requirements of the Mailer
21.030 Mailers must receive authorization from the Postal Service
to use Bulk Parcel Return Service.
21.031 To claim eligibility for Bulk Parcel Return Service at each
facility through which the mailer requests Bulk Parcel Return Service,
the mailer must demonstrate receipt of a prescribed minimum number of
returned machinable parcels at a given delivery point in the previous
postal fiscal year or must demonstrate a high likelihood of receiving
the prescribed minimum number of returned parcels in the postal fiscal
year for which the service is requested.
21.032 Payment for Bulk Parcel Return Service is made through
advance deposit account, or as otherwise specified by the Postal
Service.
21.033 Mail for which Bulk Parcel Return Service is requested must
bear endorsements prescribed by the Postal Service.
21.034 Bulk Parcel Return Service mailers must meet the
documentation and audit requirements of the Postal Service.
21.04 Other Services
21.040 The following services may be purchased in conjunction with
Bulk Parcel Return Service:
------------------------------------------------------------------------
Classification
schedule
------------------------------------------------------------------------
a. Address Correction Service........................... SS-1
b. Certificate of Mailing............................... SS-4
c. Shipper-Paid Forwarding.............................. SS-22
------------------------------------------------------------------------
21.05 Fee
21.050 The fee for Bulk Parcel Return Service is set forth in Fee
Schedule SS-21.
21.06 Authorizations and Licenses
21.060 A permit fee as set forth in Fee Schedule 1000 must be paid
once each calendar year by mailers utilizing Bulk Parcel Return
Service.
21.061 The Bulk Parcel Return Service permit may be canceled for
failure to maintain sufficient funds in an advance deposit account to
cover postage and fees on returned parcels or for failure to meet the
specifications of the Postal Service.
CLASSIFICATION SCHEDULE SS-22--SHIPPER-PAID FORWARDING
22.01 Definition
22.010 Shipper-Paid Forwarding provides a method whereby mailers
may have undeliverable-as-addressed machinable parcels forwarded at
Standard Mail Single Piece rates for up to one year from the date that
the addressee filed a change-of-address order. If the parcel, for which
Shipper-Paid Forwarding is elected, is returned, the mailer will pay
the appropriate Standard Mail Single Piece rate, or the Bulk Parcel
Return Service fee, if that service was elected.
22.02 Description of Service
22.020 Shipper-Paid Forwarding is available only for the
forwarding of machinable parcels, as defined by the Postal Service,
initially mailed under the following Standard Mail subclasses: Regular
and Nonprofit.
22.03 Requirements of the Mailer
22.030 Shipper-Paid Forwarding is available only in conjunction
with automated Address Correction Service in Schedule SS-1.
22.031 Mail for which Shipper-Paid Forwarding is purchased must
meet the preparation requirements of the Postal Service.
22.032 Payment for Shipper-Paid Forwarding is made through advance
deposit account, or as otherwise specified by the Postal Service.
22.033 Mail for which Shipper-Paid Forwarding is requested must
bear endorsements prescribed by the Postal Service.
22.04 Other Services
22.040 The following services may be purchased in conjunction with
Shipper-Paid Forwarding:
------------------------------------------------------------------------
Classification
schedule
------------------------------------------------------------------------
a. Certificate of Mailing............................... SS-4
b. Bulk Parcel Return Service........................... SS-21
------------------------------------------------------------------------
22.05 Applicable Rates
22.050 Except as provided in Schedule SS-21, Standard Mail Single
Piece rates, set forth in Rate Schedule 321.1, apply to pieces
forwarded or returned in connection with Shipper-Paid Forwarding.
GENERAL DEFINITIONS, TERMS AND CONDITIONS
* * * * *
2000 Delivery of Mail
* * * * *
2030 Forwarding and Return
* * * * *
2033 Applicable Provisions. The provisions of sections 150, 250,
350 and 450 and schedules SS-21 and SS-22 apply to forwarding and
return.
Attachment B--Requested Changes in the Fee Schedules
In conjunction with the requested changes in the Domestic Mail
Classification Schedule (DMCS) set forth in Attachment A, the Postal
Service also is requesting that the Commission recommend corresponding
changes in the attendant special service fee schedules.
Rate and fee schedules were last amended in part by the Decision of
the Governors on the Recommended Decision of the Postal Rate Commission
on Classroom Mail, Docket No. MC96-2 (Classroom Decision), as
implemented by Resolution 97-9 of the Board of Governors; the Decision
of the Governors on the Recommended Decision of the Postal Rate
Commission on Special Services Fees and Classifications, Docket No.
MC96-3 (Special Services Decision), as implemented by Resolution 97-7
of the Board of Governors; and the Decision of the Governors on the
Recommended Decision of the Postal Rate Commission on the Experimental
Nonletter-Size Business Reply Mail Categories and Fees, Docket No.
MC97-1 (BRM Decision), as implemented by resolution 97-8 of the Board
of Governors. The current rate and fee schedules (which are published
in part at 39 CFR part 3001, subpart C, appendix A, and in part as the
Attachment to the Classroom Decision, in part as Attachment B to the
Special Services Decision (62 FR 26,099), in part as Attachment B to
the BRM Decision (26 FR 25,756), and in part as Attachment B to the
Decision of the Governors of the United States Postal Service on the
Recommended Decision of the Postal Rate Commission on Nonprofit
Standard Mail, Nonprofit Enhanced Carrier Route Standard Mail,
Nonprofit Periodicals, and Within County Periodicals, Docket No. MC96-2
(61 FR 42,464)) are the basis for the proposed changes in this Request.
Unless otherwise indicated, proposed additions to the text of the
schedules are
[[Page 32836]]
in italics. The requested changes in the fee schedules are as follows:
* * * * *
SPECIAL SERVICES
* * * * *
------------------------------------------------------------------------
Fee
------------------------------------------------------------------------
Schedule SS-21--Bulk Parcel Return Service
------------------------------------------------------------------------
Per Returned Piece............................................. $1.75
------------------------------------------------------------------------
Schedule 1000--Fees
------------------------------------------------------------------------
* * * * *
Authorization to Use Bulk Parcel Return Service................ 85.00
------------------------------------------------------------------------
Attachment C--Special Rules of Practice
1. Evidence
A. Case-in-chief. A participant's case-in-chief shall be in writing
and shall include the participant's direct case and rebuttal, if any,
to the United States Postal Service's case-in-chief. It may be
accompanied by a trial brief or legal memoranda. There will be a stage
providing an opportunity to rebut presentations of other participants
and for the Postal Service to present surrebuttal evidence.
B. Exhibits. Exhibits should be self-explanatory. They should
contain appropriate footnotes or narrative explaining the source of
each item of information used and the methods employed in statistical
compilations. The principal title of each exhibit should state what it
contains or represents. The title may also contain a statement of the
purpose for which the exhibit is offered; however, this statement will
not be considered part of the evidentiary record. Where one part of a
multi-part exhibit is based on another part or on another exhibit,
appropriate cross-references should be made. Relevant exposition should
be included in the exhibits or provided in accompanying testimony.
C. Motions to Strike. Motions to strike are requests for
extraordinary relief and are not substitutes for briefs or rebuttal
evidence. 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.
D. Designation of Evidence from Other Commission Dockets.
Participants may request that evidence received in other Commission
proceedings be entered into the record of this proceeding. These
requests should be made by motion, should explain the purpose of the
designation, and should 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. If requests for designations and counter-designations are
granted, the moving participant must submit two copies of the approved
material to the Secretary of the Commission for inclusion in the
record.
Oppositions to motions for designation and/or requests for counter-
designations shall be filed within 14 days.
2. Discovery
A. General. Sections 25, 26 and 27 of the rules of practice apply
during the discovery stage of this proceeding except when specifically
overtaken by these special rules. Questions from each participant
should be numbered sequentially, by witness.
The discovery procedures set forth in the rules are not exclusive.
Parties 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
encouraged to use informal means to clarify questions and to identify
portions of discovery requests considered overbroad or burdensome.
B. Objections and Motions to Compel Responses to Discovery. Upon
motion of any participant in the proceeding, the Commission or the
presiding officer may compel an answer to an interrogatory or request
for admissions if the objection is overruled. Motions to compel should
be filed within 14 days of an objection to the discovery request.
Parties who have objected to interrogatories or requests for
production of documents or items 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.
C. Answers to Interrogatories. Answers to discovery are to be filed
within 14 days of the service of the discovery request. 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.
Participants are expected to serve supplemental answers to update
or to correct responses whenever necessary, up until the date that
answers are 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.
Participants may submit responses with a declaration of accuracy
from the respondent in lieu of a sworn affidavit.
D. Follow-up Interrogatories. 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.
E. Discovery to Obtain Information Available Only from the Postal
Service. Sections 25 through 27 of the rules of practice allow
discovery reasonably calculated to lead to admissible evidence during a
noticed proceeding with no time limitations. Generally, through actions
by the presiding officer, discovery against a participant is scheduled
to end prior to the receipt into evidence of that participant's direct
case. An exception to this procedure shall operate 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 up to 20 days prior to the filing date for final
rebuttal testimony.
3. Service
A. Receipt of Documents. The Service List shall contain the name
and address of up to two individuals entitled to receive copies of
documents for each participant. If possible that entry will also
include a telephone number and facsimile number.
B. Service of Documents. Documents shall be filed with the
Commission and served upon parties in accordance with sections 9
through 12 of the Commission's rules of practice. As provided in the
Secretary's Notice to Intervenors, issued February 4, 1997,
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 Word Perfect 5.1 or any version of Microsoft Word, and is
formatted in Arial 12 font, in lieu of
[[Page 32837]]
the requirements of section 10 of the rules, a participant may submit a
diskette containing the text of each filing simultaneously with the
filing of 1 (one) printed original and 3 (three) hard copies.
C. Exceptions to general service requirements for certain
documents. Designations of written cross-examination, notices of intent
to conduct oral cross-examination, and notices of intent to participate
in oral argument need to 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.
Discovery requests, objections and answers thereto need to be
served on the Commission, the OCA, the Postal Service, and the
complementary party, and on any other participant so requesting, as
provided in sections 25-27 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. Document titles. Parties should include titles that effectively
describe the basic content of any filed documents. Where applicable,
titles should identify the issue addressed and the relief requested.
Transmittal documents should identify the answers or other materials
being provided.
4. Cross-examination
A. 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 for a witness may object to written cross-examination
at that time, and any designated answers or materials ruled
objectionable will be stricken from the record.
B. Oral cross-examination. Oral cross-examination will be permitted
for clarifying written cross-examination and for testing assumptions,
conclusions or other opinion evidence. Requests for permission to
conduct oral cross-examination should be served three or more working
days before the announced appearance of a witness and should include
(1) specific references to the subject matter to be examined and (2)
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 provided to counsel for the witness at
least two calendar days (including one working day) before the
witness's scheduled appearance.
5. General
Argument will not be received in evidence. It is the province of
the lawyer, not the witness. It should be presented in brief or
memoranda. Legal memoranda on matters at issue will be welcome at any
stage of the proceeding.
New affirmative matter (not in reply to another party's direct
case) should not be included in rebuttal testimony or exhibits.
Cross-examination will be limited to testimony adverse to the
participant conducting the cross-examination.
Library references may be submitted when documentation or materials
are too voluminous reasonably to be distributed. Each party should
sequentially number items submitted as library references and provide
each item with an informative title. Parties are to file and serve a
separate Notice of Filing of Library Reference(s). Library material is
not evidence unless and until it is designated and sponsored by a
witness.
[FR Doc. 97-15810 Filed 6-16-97; 8:45 am]
BILLING CODE 7710-FW-P
