[Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
[Proposed Rules]
[Pages 52725-52731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25257]
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POSTAL RATE COMMISSION
39 CFR Part 3001
[Docket No. RM98-2; Order No. 1263]
Revisions To Library Reference Rule; Further Changes
AGENCY: Postal Rate Commission.
ACTION: Supplementary notice of proposed rule.
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SUMMARY: This document addresses comments on a previous proposal to
revise rules on the use of library references. It also presents another
set of revisions for comment. The revisions are intended to improve
administrative aspects of the library reference practice.
DATES: File comments by October 20, 1999.
ADDRESSES: Send comments on this proposal to Margaret P. Crenshaw,
Secretary of the Commission, Postal Rate Commission, 1333 H Street,
NW., Suite 300, Washington, DC 20268-0001.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6820.
SUPPLEMENTARY INFORMATION:
Regulatory History
On September 8, 1998, the Commission published order no. 1219 in
the Federal Register (63 FR 47456) setting forth its initial proposal
to revise rule 31(b) (39 CFR 3001.31(b)). The Commission received eight
sets of comments on the proposal. In order no. 1223 (issued December
24, 1999), the Commission proposed further revisions. These were
published in the Federal Register on December 24, 1998 (63 FR 71251).
The Commission received three sets of comments on the amended version
of the rule. Comments on both orders are available for public
inspection in the Commission's docket section. They also can be
accessed electronically at www.prc.gov. The Commission issued this
order (no. 1263) proposing further revisions on September 23, 1999. It
directed interested parties are invited to submit comments following
publication of this proposal in the Federal Register (see Dates for the
deadline) and directed the Secretary to cause this order to be
published in the Federal Register, in accordance with all applicable
regulations of the Office of the Federal Register.
Introduction
This is the third order the Commission has issued in a rulemaking
revising rule 31(b) provisions on the practice of filing library
references. It briefly describes previous proposals, addresses various
comments, and presents further proposed revisions. The proposed changes
reflect the same focus on limited administrative improvements as the
earlier proposals, but place greater emphasis on the role of the notice
in providing relevant information. Inclusion of a detailed preface or
summary, which had been proposed as a mandatory requirement, is made
optional. New provisions, based on a Postal Service analysis, identify
six categories of library references. The proposal also clarifies when
library references may be filed and when special requests for service
can be made. The rule has been reorganized and renumbered to reflect
these changes (consistent with Office of the Federal Register style.)
Minor editorial revisions also have been made.
I. Summary of Initial Proposal (Order No. 1219)
The initial set of provisions issued in this rulemaking listed the
circumstances when material could be filed as a library reference. The
list reflected the practice that had grown up around the existing rule.
It included the following independent considerations: When physical
characteristics (such as bulk or volume) make service of the material
unduly burdensome; when the material is of limited interest to the
entire service list; when the material qualifies as a secondary source;
when reference to the material is made easier or otherwise facilitated;
or when otherwise justified by circumstances, as determined by the
Commission or presiding officer.
The initial proposal also required those who file library
references (``filers'') to provide detailed information and related
disclosures about the material in both an accompanying motion and in a
preface or summary contained in the library reference. This represented
a change in practice, as the long-standing rule has required only a
notice with minimal information. The proposal also required submission
of an electronic version of material.
[[Page 52726]]
II. Second Proposal (Order No. 1223)
A. Summary of Provisions
The second set of revisions eliminated the motion requirement. It
reinstated the notice, specifying that it include the same type of
information and disclosures the motion would have had to provide. It
retained the separate preface requirement. The proposal limited the
circumstances justifying submission of a library reference by requiring
consideration of the material's physical characteristics (as they
relate to service) in conjunction with one of the other long-recognized
circumstances. It also clarified requirements for the contents of the
notice; increased the number of hard copies required to be filed from
one to two; and limited special requests for service.
B. Summary of Comments
The Commission received comments from the Postal Service, the
Office of the Consumer Advocate (OCA) and David Popkin (Popkin) on the
second version of the rule. Further Comments of the United States
Postal Service (February 1, 1999); Renewed Request for Informal
Conference and OCA Comments in Response to Order No. 1223 on Proposed
Revisions to Commission Rules on Library References (February 1, 1999);
and Correspondence of David B. Popkin (January 23, 1999). (Hereafter,
``Postal Service Comments,'' ``OCA Comments,'' and ``Popkin
Comments.'')
C. Commenters' Positions in General
The Postal Service's position. The Service provides this
perspective on its practice with respect to library references:
In past general rate cases, the Postal Service typically has not
filed as a `library reference' material it intended to be admitted
directly into the evidentiary record. Rather, such material has been
filed as testimony. In Docket No. R97-1, however, this historical
practice may have become obscured. As a result of the events of that
proceeding, the Postal Service now anticipates (and would even in
the absence of this rulemaking) that more material of the type that
in the past may have been submitted as library references will
simply be filed as testimony.
Postal Service Comments at 9 (footnotes omitted).
The Commission believes that the Service's representations
regarding future filings provide a sound basis for assuming that the
most serious problems associated with library references in Docket No.
R97-1 will not recur. At the same time, the Commission finds that
improvements in the basic administration of the library reference
practice are still needed. In particular, the Commission wants to
insure that the notice accompanying each library reference provides
information that adequately identifies the contents and discloses how
it relates to an issue or may be used in a case. Also, the Commission
believes the practice of filing library references should be limited to
appropriate circumstances and categories of material.
Other concerns. The Service objects to the proposal's across-the-
board application to all library references, as well as to many
specific provisions. It claims further revisions are needed if the
Commission's apparent objectives are to be achieved without unduly
burdening the Postal Service. The Service renews its request for an
informal conference, but says the focus could be narrower than
originally proposed. In support of this approach, the Service claims
(without detailed explanation) that problems and solutions could be
explored more efficiently in a conference than through the written
comment-and-reply process.
The Service also notes that it has identified six categories of
library references, and suggests that these groupings could serve as a
basis for discussion at the conference. However, it further states that
it believes five of the six categories--all but ``All Other
Material''--should be exempt from the proposed requirements (as amended
to reflect other concerns the Service raises). The Service's rationale
is that to the extent there was legitimate controversy over library
references in Docket No. R97-1, all of the material at issue was within
proposed Category 6 (All Other Material). Postal Service Comments at 1-
2.
The OCA's position. The OCA generally asserts that the Commission's
proposal is not sufficiently thorough. It urges further amendments
incorporating some of the suggestions it offered in its initial
comments. These include a comprehensive cross-walk or ``road map''
linking library references to witnesses; a continuing obligation to
update the cross-walk; and production of survey data at the time survey
results are filed, along with specific relief if such data are not
contemporaneously filed. OCA Comments at 1-3.
The OCA asks that the Commission provide an avenue of relief if the
new requirements are ignored or abused and seeks clarification of the
circumstances under which a library reference can be filed. Id. at 2.
It notes that it continues to believe that adjustments that are
closely, but not necessarily directly related to, the library reference
practice could be included in this rulemaking. Id. The OCA also
questions the adequacy of the Commission's explanation of how it
balanced the burdens associated with the library reference practice.
Id. at 5-6. It emphasizes that reviewers shoulder a considerable
burden, especially if the Commission does not require the Service to
provide (and update) a cross-walk between testimony and library
references. Id. at 6.
Mr. Popkin's position. Mr. Popkin raises a concern about his
ability to participate in an economical and effective manner, given
that he does not work or reside in the Washington, DC area. In
particular, he emphasizes the need for requiring the filer to provide a
detailed description of the contents of library references. He also
supports extending the right to make a special request for service to
all library references. Popkin Comments at 1.
D. Commission Response
Response to the Service's general concerns. The Commission has
considered the Service's request for a conference, but is not convinced
that this approach would be a more efficient way of developing
improvements. The Service has not presented persuasive reasons why the
issues under consideration are not suited to the notice-and-comment
format traditionally used for changes of this nature. It is also not
clear that a conference would elicit any more (or better informed)
participation than the notice-and-comment approach. Therefore, the
Commission plans to proceed with the rulemaking format.
In response to the Service's concern over the rule's ``one-size
fits all'' approach, the Commission notes that the underlying proposal
assumed that participants would avail themselves of the opportunity to
seek waiver of all or part of the proposed provisions (under rule 22)
whenever appropriate. To make clear that waiver is an option, the
Commission is adding a provision similar to that in rule 54(r). The
proposed language reads as follows:
Upon the filing of a motion showing good cause, the Commission
may waive one or more of the provisions relating to library
references. Motions seeking waiver may request expedited
consideration and may seek waiver for categories of library
references.
The Commission considers this approach preferable to the Service's
suggestion, which sets up a structure for categorizing library
references, only to exempt all but one category from application of the
rule. The Commission nevertheless believes the proposed categories have
considerable utility for a
[[Page 52727]]
number of purposes, including as a frame of reference when requests for
waiver are filed or when special requests for copies are made.
Therefore, the proposed rule identifies and defines them essentially as
suggested by the Service.
Response to OCA's general concerns. The OCA requests more extensive
cross-referencing to library references than the Commission has
proposed and wants survey data to be provided when the survey results
are initially filed. In the rule proposed here, the Commission is not
including the requested approach to survey data, as it believes this
expands the rulemaking beyond the limits established early on. However,
the Commission is adopting a limited cross-referencing requirement. The
Commission does agree with the basic OCA premise that the rule should
clearly set out the current expectation that testimony and exhibits
presented in Commission proceedings should contain adequate citation
for specifically referenced source material. Therefore, language is
added to rule 31(b) to make current expectations more explicit. See
rules 31(k) and 54(o).
With respect to the adequacy of the explanation of burden, the
Commission assumed it was clear that complying with the new provisions
would fall most heavily on the Service, as it generally files the most
library references. Eliminating mandatory motion practice was one means
of reducing burden on the Service. Increasing the amount of information
provided in the notice was a way of reducing a reviewer's burden.
A comprehensive cross-walk linking testimony and library references
would further assist a reviewer, but the Commission is not convinced
that the job of preparing one, at least on the scale required for
omnibus cases, is as simple as the OCA asserts. There are complexities
associated with the Service's preparation of a formal request, and the
Commission does not seek to add to them unnecessarily by mandating
preparation of a cross-walk, unless it becomes apparent that this is
essential as a matter of due process. However, should the Service
prepare even a limited or partial cross-walk in the course of
organizing its filing, the Commission hopes this document (and any
updates) would be made available to the entire service list on a
voluntary basis. Additionally, discovery requests for such information
are permissible.
The elimination of the motion requirement, as the OCA notes, also
eliminates an explicit avenue for relief, should the notice be
deficient (or not filed at all). The Commission has considered the need
for providing a specific enforcement mechanism in its revised proposal
to address other situations, but has concluded that an aggrieved
reviewer can seek redress either informally (preferably by asking the
filer to provide any missing information) or by seeking special relief
from the Commission.
Response to Popkin. The retention of requirements specifying that
certain information and disclosures be made in the notice addresses
Popkin's concerns about a reviewer's ability to determine the contents
of a library reference. The Commission continues to believe that
opportunities to make a special request for service of material filed
as a library reference should be limited. In maintaining this position,
the Commission notes its expectation that the Service (and other
filers) will be including in testimony and exhibits much of the type of
information that has been filed as a library reference in the past.
III. The Service's Proposed Library Reference Categories
The Service has grouped the library references it filed in Docket
No. R97-1 into six categories. The categories are Reporting Systems
Material (Category 1); Witness Foundational Material (Category 2); Pure
Reference Material (Category 3); Material Provided in Response to
Discovery (Category 4); Disassociated Material (Category 5); and All
Other Material (Category 6). See generally Postal Service Comments at
16-27.
Under the Service's approach, Category 1 consists of library
references relating to the Service's statistical cost and revenue
reporting systems and their primary outputs. The Service notes that
this category could be further subdivided into two groups, with one
consisting of documentation (such as handbooks and manuals) and the
other consisting of data generated by the reporting systems, related
reports, or any data compilations generated in the process of producing
final reports. Id. at 16-17.
Category 2 (Witness Foundational Material) consists of material
relating to the testimony of specific witnesses. The Service says this
material provides access to the information identified by rule 31 as
necessary to the establishment of a proper foundation for receiving
into evidence the results of studies and analyses. It also notes that
much of this information is typically provided, at least in part, in
electronic format. Id. at 20.
Category 3 (Pure Reference Material) consists of previously
published material provided for the convenience of the reader. The
Service says this category includes materials such as entire books,
portions of books, articles, reports, manuals, handbooks, and
contracts. Id. at 22. Category 4 (Material Provided in Response to
Discovery) consists of material provided in response to discovery
requests. Id. at 23. Category 5 (Disassociated Material) consists of
material provided by a party, at the request of another, from which the
filing party wishes to be disassociated. The Service characterizes this
as material filed ``under protest,'' when the filing party wishes to
make clear that it is neither vouching for, nor in any way sponsoring,
the material that is provided. Id. at 26. Category 6 (All Other
Material) consists of library references not fitting any of the other
categories. Id. at 27.
IV. Section-by-Section Summary
The following discussion assumes that the changes referred to are
being made to the second set of rules issued in Order No. 1223 (also
referred to here as the underlying proposal). Numbering reflects Office
of Federal Register style preferences.
A. Paragraph (b)(1) of Section 31
General introduction to provisions on documentary material. The
underlying proposal left this provision unchanged from the version
currently in effect, except for minor editorial and organizational
changes. These included changing the heading from ``Documentary'' to
``Documentary material--(1) General.'' Also, the last two sentences of
this provision (which address the evidentiary status of material
contained in library references) were relocated to a separate paragraph
under section 31(b)(2) and captioned ``Status of library references.''
Commenters positions. No commenter addresses the minor changes the
Commission proposed in this subsection, but the OCA asks that a
sentence be added to emphasize the need for specific references in all
testimony and exhibits. The proposed language reads: ``Exhibits
prepared for Commission proceedings shall cite with specificity the
page and, if necessary for comprehension, the line number, of specific
portions of testimony, exhibits, library references or other referenced
material.'' OCA Comments at 8.
Commission response. The Commission supports adequate citation to
sources in all filings, and adopts a variation on the OCA's proposal.
[[Page 52728]]
B. Underlying Paragraph (b)(2) of Section 31--General Presentation of
Provisions on Library References
To reduce the need for extensive renumbering of succeeding
provisions in the Commission's rules of practice, both of the previous
versions organized the provisions on library references into a newly-
designated paragraph 31(b)(2). This approach is retained in the set of
rules proposed here. Further changes affecting the numerical
designation of internal subdivisions are identified below.
C. Underlying Paragraph 31(b)(2)(i)
Definition of library reference; recognition of related practice;
circumstances for filing. In the underlying proposal, the first
sentence stated that a library reference is a generic term or label
that may be used to identify or refer to certain documents or things
filed with the Commission's document room. The second sentence stated
that the practice of filing library references is authorized primarily
as a convenience to filing participants and the Commission. The third
sentence identified the situations or circumstances when a library
reference may be filed. These included when the physical
characteristics make compliance with service requirements burdensome
and any one of the following factors exist: limited interest; status as
a secondary source; when reference to the material would be
facilitated; or when otherwise justified by circumstances.
The formulation of the first sentence generated no opposition. It
appears in the version presented here as it did in the underlying
version. Following this sentence, the Commission is adding a new
provision identifying and describing six categories of library
references. The wording closely tracks the Postal Service's
suggestions. This addition (paragraph (b)(2)(i) of section 31) reads as
follows:
Participants are encouraged to identify and refer to library
reference material in terms of the following categories:
Category 1--Reporting Systems Material (consisting of library
references relating to the Postal Service statistical cost and revenue
reporting systems, and their primary outputs); Category 2--Witness
Foundational Material (consisting of material relating to the testimony
of specific witnesses, primarily that which is essential to the
establishment of a proper foundation for receiving into evidence the
results of studies and analyses); Category 3--Reference Material
(consisting of previously published material provided for the
convenience of the reader, such as books, chapters or other portions of
books, articles, reports, manuals, handbooks, guides, and contracts);
Category 4--Material Provided in Response to Discovery (consisting of
material submitted in answer to discovery requests); Category 5--
Disassociated Material (consisting of material provided at the request
of another, from which the filing party disassociates itself,
especially in terms of vouching for or sponsoring the material);
Category 6--All Other Material (consisting of library references not
fitting any of the other categories).
Because of the addition of this language, the second sentence in
the underlying version is redesignated as paragraph (b)(2)(ii) of
section 31. The Commission has considered, but rejected, a change in
the wording of this sentence based on the Postal Service's observation
that in some instances, such as when it complies with a request for
production of documents under rule 26, filing material as a library
reference may be a convenience for the requesting party. The Commission
notes that the reference to convenience is qualified with the term
``primarily.'' This leaves open other possibilities, such as the
situation the Service raises; therefore, this provision is not revised.
D. Underlying Paragraph (b)(2)(i)(A)-(E) of Section 31
Circumstances under which a library reference may be filed. The OCA
points out that the Commission's revision links physical
characteristics that presumably make service unduly burdensome with one
of the circumstances enumerated in the following subsections. The OCA
contends that this is contrary to the sense of the initial proposal,
and asserts that this restricts the filing of library references to
documents too burdensome to serve. OCA Comments at 12.
Commission response. The presentation in the underlying version was
based on the Commission's assessment that the practice of filing
library references should be limited, in accordance with the original
intent of the rule. (The size of a document in terms of number of pages
was a major concern when the rule was originally promulgated.) It also
recognized that as the ability to produce material in electronic format
increases, there are likely to be fewer instances when material is too
voluminous to serve in the traditional hard-copy sense.
The Commission is retaining the more limited approach of the
underlying version in the accompanying set of rules, but is revising it
in two respects. First, the provision for filing when otherwise
justified by circumstances--which now appears as paragraph (b)(2)(i)(E)
of section 31--is established as a consideration independent of
physical characteristics. It appears as paragraph (b)(2)(iii) of
section 31. Second, a provision is added as paragraph (b)(2)(ii) of
section 31 to recognize that a filer may seek to comply with a
discovery request for production of documents or things by making the
material available as a library reference, without the need for special
approval or waiver.
Special requests. In the underlying version, the Commission
proposed limiting special requests to situations meeting the terms of
section 31(b)(2)(i)(A) and (B)--when the physical characteristics of
the material would make service unduly burdensome and the material was
of limited interest. The filer was to provide a copy of the requested
material within three days or, in the alternative, inform the
requesting participant of certain matters, including when the material
would be available. The Commission's commentary noted that absence of a
specific authorization for special requests in other instances did not
automatically foreclose a participant from making a request.
The Service observes, with respect to special requests, that it
``has serious concerns about any draft provision which might be
construed to entitle parties to copies of substantial portions of the
set of library references filed with the case.'' Postal Service
Comments at 6-7. It says: ``In this respect, directly limiting
application of the `extra copy' provisions of the proposed procedures
by reference to the categories suggested by the Postal Service * * *
would likely be more effective.'' Id. at 8.
Mr. Popkin notes that he has had a problem in the past with
obtaining material that has been filed as a library reference. It
appears that the material in question may have been filed in response
to a request for production of documents (under rule 26). As the
Service notes, the terms of rule 26 direct the responding party to make
the material available for inspection and copying, but do not require
service.
Special requests are a challenging issue. The Commission continues
to oppose an across-the-board allowance for special requests. It also
believes that the growing ability to produce and distribute most
material in an electronic format reduces the need for participants to
make special requests for hard-copy service. Also, the Commission
believes that exposing the filer of a library
[[Page 52729]]
reference to the potential for repeated requests for service diminishes
the extent to which the practice of filing a library reference is a
convenience.
Based on further consideration of these points and others raised by
the commenters, the Commission proposes a separate provision on special
requests. This provision sets out the basic policy that special
requests for service are not encouraged and that no blanket requests
for service of library reference material may be made. It further
provides that special requests must be made in the form of a detailed
motion.
E. Underlying Paragraph (b)(2)(ii) of Section 31--Filing Procedure
In the underlying version, this paragraph states that library
references are to be accompanied by a contemporaneous notice, and
specifies that two hard copies of the material are to be filed. It also
outlines the information that is to be included in the notice. The
filer must describe what the material consists of or represents; how
the material relates to the participant's case or to issues in the
proceeding; and whether the material contains a survey or survey
results. Filers must also address certain matters related to the
material's potential use as evidence and its relationship to other
documents. These include disclosing whether the participant anticipates
seeking admission of the material into evidence; identifying authors or
others who make a material contribution; identifying related documents;
identifying portions of the material that may be entered into evidence;
and identifying the expected sponsor. A companion provision, in
underlying paragraph 31(b)(2)(iii), requires library references to
include a preface, and sets out the information and disclosures that
must be presented therein.
Commenters' positions. The Postal Service acknowledges that it
opposed the motion requirement, but says it is not satisfied with the
Commission's notice alternative because it does nothing to lessen the
burden on the Postal Service. Instead, the Service says it ``merely
substitutes what amounts to virtually the same content requirements for
the required notice as were initially proposed for the motion.'' Postal
Service Comments at 2-3.
The OCA says it does not seek reinstatement of the motion
requirement, but raises a concern that there is no clear avenue of
relief for those who believe a filing participant has failed to satisfy
the new requirements. It asks that the Commission explicitly provide
one. OCA Comments at 1-2.
Commission response. Given the minimal information that has been
provided in many notices, adoption of almost any new requirements would
entail more effort from the Service or any other participant filing a
library reference. However, the Commission believes that most of its
proposed requirements are sound, and retains many of them in the final
version. However, as discussed below, it is eliminating the preface as
a mandatory item in library references.
Contents of the required notice. The Service supports requiring a
description of the contents of the library reference and an explanation
of how it relates to other material in the case. However, it asserts
that requiring the filing party to state whether the material contains
a survey or survey results, can ``safely be omitted'' because it is
unclear why a special provision should be devoted exclusively to an
indication of this nature. Postal Service Comments at 12.
The Service also claims that certain other requirements are ``of
mixed utility.'' For example, it notes that the notice is to set forth
the reason why the material is being designated as a library reference.
The Service observes that while wanting to know why the library
reference is being submitted is understandable in the abstract, the
reasons are usually fairly obvious in practice, especially for those
involving entire categories the Service requests be exempted from the
rules. Id. The Service also questions the provision requiring
identification of authors or others materially contributing to the
preparation of the library reference. Id. As an example, it cites the
production of a spreadsheet, and questions why the filer must provide
the identity of individuals who only assist in its preparation. Id. at
13.
The underlying version also includes a requirement that the filing
participant disclose whether the material contains survey results. Both
the Service and the OCA address this provision, but their interests are
significantly different. The OCA's concern is that the Commission's
proposal is not an adequate substitute for its original request that
the Commission require survey data to be filed at the time the survey
results are submitted. The Service, on the other hand, asks why this
requirement is included, since it expects this information would be
provided in the required description.
Commission response. Although the Service asserts that the reason
for filing a library reference is ``usually fairly obvious,'' the
Commission continues to believe that the notice would be of more
assistance to reviewers if this information is provided. The underlying
version required filers to address this in terms of the circumstances
set out in the rule. Given the addition of the list of categories, the
Commission proposes that filers identify the category of the material
as well.
The Commission believes the Service reads too much into the
requirement for identification of ``authors or others materially
contributing to the preparation of the library reference.'' The rule
does not require filing participants to list those providing clerical,
secretarial, or related administrative assistance in connection with
the material. The ``others'' referred to should be presumed to stand in
essentially the same relationship to the material as does an
``author.'' In providing direction regarding the interpretation of this
phrase, the Commission expects filing participants and reviewers to
exercise good judgment in complying with this requirement. For example,
in the case of a spreadsheet prepared by an assistant, it may be
adequate to indicate that the material was prepared under the direction
of a certain witness.
With respect to survey results, the Commission notes that it
regarded the OCA's original suggestion regarding contemporaneous filing
of survey results among those that were beyond the scope of this
limited rulemaking. However, the Commission also believed that one
objective of the rule--more extensive disclosure of the contents of the
material contained in the library reference--would be enhanced if
survey results were specifically identified. As surveys may require
more extensive or more expert analysis than other material, the
Commission continues to believe it is appropriate for this information
to be disclosed. However, in line with the Service's observation that
survey results are the type of description that might be provided in
response to the requirement of a general disclosure of contents, the
wording of the accompanying set of rules is amended to reflect this.
Several minor editorial changes are made to other provisions to clarify
the extent of the required disclosures.
The OCA's proposal that this paragraph include a requirement for a
cross-walk or ``road map.'' In line with its interest in a cross-walk,
the OCA proposes adding the following paragraph to this provision:
The filing shall include a listing, by witness, of those
witnesses who rely upon or cite to the library reference together
with specific references to pages and schedules in testimony and
exhibits where the library reference is cited. The listing shall be
[[Page 52730]]
updated as additional library references are filed.
OCA Comments at 7.
Commission response. The Commission declines to adopt the proposed
amendment, for reasons discussed earlier.
F. Underlying paragraph (b)(2)(iii) of Section 31
Labels, descriptions (including information to be provided in a
preface or summary with library reference itself), and related
disclosures. The first sentence of the underlying provision directs the
filing participant to use standard notation to label the library
reference and to comply with any additional requirements that may be
imposed by the presiding officer or the Commission. This provision has
not been controversial. It is retained in the third version, but the
caption is changed to ``Labeling'' to reflect a change in the
organization of the rule. The second sentence in the underlying
paragraph is replaced with text identifying the inclusion of a detailed
preface as an option. It is also redesignated.
Elimination of mandatory inclusion of a preface or summary. The
underlying proposal requires that material designated as a library
reference include a preface or summary addressing the following points:
the proceeding and document or issue involved; the identity of the
designating participant; the identity of the sponsoring witness or
witnesses (or the reason why this cannot be provided); to the extent
feasible, other library references or testimony that utilize
information or conclusions developed therein; and whether the library
reference is an update or revision to a library reference filed in
another Commission proceeding.
Commenters' positions. The Service says that to the extent it
agrees information listed in this subsection is necessary, the
information has been provided in the vast majority of instances.
However, it also contends that not all of the information is necessary.
It further notes that in some instances, such as when the material is a
pre-existing document, it may be difficult or impossible to comply, and
not necessary if the notice is adequate. Id. at 13-14. It also objects
to the requirement of identifying ``other library references or
testimony that utilize information or conclusions developed therein''
to the extent it calls for an exhaustive list of all downstream
testimony or library references, but agrees to the extent it applies to
material developed primarily to support a particular study or
testimony.
Commission response. The version proposed here makes inclusion of a
detailed preface or summary an option. In addition, the Commission is
requiring some of the disclosures that were to be included in the
preface to be set forth in the expanded notice requirement.
G. Subsection 31(b)(2)(iv)--Electronic Versions of Library References
The underlying version requires an electronic version, or an
explanation of why an electronic version cannot be provided.
Commenters' positions. The Service observes, in connection with
this requirement, that the universe of library references can largely
be bifurcated into those which exist as library references because they
are entirely electronic or have an electronic component, and those
consisting of voluminous hard copy material for which no electronic
version is available. It further says that increasingly, voluminous
hard copy material is not likely to be filed if an electronic version
could be filed more easily. The Service believes the intended result
will be substantially achieved with or without any formal rule change.
Id. at 15-16. It says it would prefer a rule which simply encourages
parties to file electronic versions of library reference material
whenever possible. Id. at 16.
Commission response. The Commission acknowledges the trend toward
increased filing of material in an electronic format, but declines to
alter the proposed provision in the manner suggested by the Postal
Service. However, the Commission amends this provision to encourage the
inclusion of a preface containing the information and disclosures
required to be provided in the notice. The Commission believes that
including a detailed preface would assist reviewers in instances where
the notice is not readily available.
H. Underlying Paragraph (b)(2)(v) of Section 31--Status of Library
References
This provision remains unchanged, but it is redesignated.
I. Waiver
As explained earlier, the Commission anticipated that the Service
or other filers would file a motion for waiver of operation of various
library reference provisions when deemed appropriate. To make clear
this option exists, the Commission is including a specific provision
(described earlier.)
J. Number of Copies
The accompanying version retains the requirement (in the underlying
version) that two hard copies be provided. This language appears in a
separate provision.
V. Set of Rules
The set of rules the Commission is proposing follows.
Dated: September 23, 1999.
Margaret P. Crenshaw,
Secretary.
List of Subjects in 39 CFR Part 3001
Administrative practice and procedure; Postal Service.
For the reasons discussed in the preamble, the Commission proposes
to amend 39 CFR part 3001 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, 3622-24, 3661, 3662.
2. Amend Sec. 3001.31 by revising paragraph (b) to read as follows:
Sec. 3001.31 Evidence.
* * * * *
(b) Documentary material.--(1) General. Documents and detailed data
and information shall be presented as exhibits. Testimony, exhibits and
supporting workpapers prepared for Commission proceedings that are
premised on data or conclusions developed in a library reference shall
provide the location of that information within the library reference
with sufficient specificity to permit ready reference, such as the page
and line, or the file and the worksheet or spreadsheet page or cell.
Where relevant and material matter offered in evidence is embraced in a
document containing other matter not material or relevant or not
intended to be put in evidence, the participant offering the same shall
plainly designate the matter offered excluding the immaterial or
irrelevant parts. If other matter in such document is in such bulk or
extent as would unnecessarily encumber the record, it may be marked for
identification, and, if properly authenticated, the relevant and
material parts may be read into the record, or, if the Commission or
presiding officer so directs, a true copy of such matter in proper form
shall be received in evidence as an exhibit. Copies of documents shall
be delivered by the participant offering the same to the other
participants or their attorneys appearing at the hearing, who shall be
afforded an opportunity to examine the entire document and to offer in
evidence in like manner other material and relevant portions thereof.
[[Page 52731]]
(2) Library references. (i) The term ``library reference'' is a
generic term or label that participants and others may use to identify
or designate certain documents or things (``material'') filed with the
Commission's docket section. To the extent possible, material filed as
a library reference shall be identified and referred to by participants
in terms of the following categories:
Category 1--Reporting Systems Material (consisting of library
references relating to the Service's statistical cost and revenue
reporting systems, and their primary outputs); Category 2--Witness
Foundational Material (consisting of material relating to the
testimony of specific witnesses, primarily that which is essential
to the establishment of a proper foundation for receiving into
evidence the results of studies and analyses); Category 3--Reference
Material (consisting of previously published material provided for
the convenience of the reader, such as books, chapters or other
portions of books, articles, reports, manuals, handbooks, guides,
and contracts; Category 4--Material Provided in Response to
Discovery (consisting of material provided in response to discovery
requests); Category 5--Disassociated Material (consisting of
material at the request of another, from which the filing party
wishes to be disassociated, is not vouching for or sponsoring the
material provided); Category 6--All Other Material (consisting of
library references not fitting any of the other categories).
(ii) The practice of filing a library reference is authorized
primarily as a convenience to filing participants and the Commission
under certain circumstances. These include when the physical
characteristics of the material, such as number of pages or bulk, are
reasonably likely to render compliance with the service requirements
unduly burdensome; and one of the following considerations apply:
(A) Interest in the material or things so labeled is likely to be
so limited that service on the entire list would be unreasonably
burdensome, and the participant agrees to serve the material on
individual participants upon request within three days of a request, or
to provide, within the same period, an explanation of why the material
cannot be provided within three days, and to undertake reasonable
efforts to promptly provide the material; or,
(B) The participant satisfactorily demonstrates that designation of
material as a library reference is appropriate because the material
constitutes a secondary source. A secondary source is one that provides
background for a position or matter referred to elsewhere in a
participant's case or filing, but does not constitute essential support
and is unlikely to be a material factor in a decision on the merits of
issues in the proceeding; or,
(C) Reference to, identification of, or use of the material would
be facilitated if it is filed as a library reference; or
(D) The material is filed in compliance with a discovery request
for production of documents or things.
(iii) Other circumstances. If a participant considers it
appropriate to file material as a library reference, but for the
inability to satisfy the terms set out in paragraphs (b)(2)(ii)(A)-(D)
of this section, the material may be filed (by means of a notice)
subject to the following conditions:
(A) Inclusion in the accompanying notice of a detailed explanation
of the reason for filing the material under this provision;
(B) Satisfaction of all other applicable requirements relating to
library references; and
(C) the Commission's right to refuse acceptance of the material in
its docket room and its right to take other action to ensure
participants' ability to obtain access to the material.
(iv) Filing procedure. Participants filing material as a library
reference shall provide contemporaneous written notice of this action
to the Commission and other participants, in accordance with applicable
service rules. The notice shall:
(A) Set forth the reason(s) why the material is being designated as
a library reference, with specific reference to paragraphs (b)(2) (ii)
and (iii) of this section;
(B) Identify the category into which the material falls and
describe in detail what the material consists of or represents, noting
matters such as the presence of survey results;
(C) Explain in detail how the material relates to the participant's
case or to issues in the proceeding;
(D) Identify authors or others materially contributing to
substantive aspects of the preparation or development of the library
reference;
(E) Identify the documents (such as testimony, exhibits, an
interrogatory) or request to which the library reference relates, to
the extent practicable;
(F) Identify other library references or testimony relied upon or
referred to in the designated material, to the extent practicable;
(G) Indicate whether the library reference is an update or revision
to a another library reference and, if it is, clearly identify the
predecessor material; and
(H) To the extent feasible, identify portions expected to be
entered and the expected sponsor (if the participant filing a library
reference anticipates seeking, on its own behalf, to enter all or part
of the material contained therein into the evidentiary record).
(v) Labeling. Material filed as a library reference shall be
labeled in a manner consistent with standard Commission notation and
any other conditions the presiding officer or Commission establishes.
(vi) Optional preface or summary. Inclusion of a preface or summary
in a library reference addressing the matters set out in paragraphs
(b)(2)(iv)(A)-(H) of this section is optional.
(vii) Electronic version. Material filed as a library reference
shall also be made available in an electronic version, absent a showing
of why an electronic version cannot be supplied or should not be
required to be supplied. Participants are encouraged to include in the
electronic version the information and disclosures required to be
included in the accompanying notice.
(viii) Number of copies. Except for good cause shown, two hard
copies of each library reference shall be filed.
(ix) Special requests. Special requests for service of material
filed as a library reference are not encouraged. Special requests must
be made in the form of a detailed motion setting forth the reasons why
service is necessary or appropriate.
(x) Waiver. Upon the filing of a motion showing good cause, the
Commission may waive one or more of the provisions relating to library
references. Motions seeking waiver may request expedited consideration
and may seek waiver for categories of library references.
(xi) Status of library references. Designation of material as a
library reference and acceptance in the Commission's docket section
does not confer evidentiary status. The evidentiary status of the
material is governed by this section.
[FR Doc. 99-25257 Filed 9-29-99; 8:45 am]
BILLING CODE 7710-FW-P
