[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Proposed Rules]
[Pages 47456-47458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23635]
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POSTAL RATE COMMISSION
39 CFR 3001
[Docket No. RM98-2; Order No. 1219]
Revisions to Library Reference Rule
AGENCY: Postal Rate Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission proposes amending its rules of practice to
clarify the use of library references in evidentiary proceedings. The
proposed amendments specify conditions under which library references
may be filed; improve labeling and identification; and establish a
process for conditional acceptance that entails motion practice.
DATES: Comments should be filed on or before October 14, 1998.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6820.
SUPPLEMENTARY INFORMATION: The Commission's rules of practice authorize
participants in evidentiary proceedings to label material as a library
reference and file it with the Commission's docket section. See
generally Rule 31(b), and Docket No. R97-1 Special Rule of Practice No.
5. Designation as a library reference and acceptance in the
Commission's docket section confer no evidentiary status on the
material; instead, these steps are part of an administrative practice
designed to relieve participants of the burden of serving copies of
voluminous material on others or to facilitate reference to, or
identification of, the material.
The Commission's longstanding approach has been to allow the Postal
Service and others to file material as a library reference without
requiring them to make a threshold showing of the appropriateness of
the designation, and without conducting an independent evaluation. In
Docket No. R97-1, serious concerns arose that the library reference
practice could be employed, either inadvertently or strategically, to
insulate material from effective cross-examination (or to control the
timing of such examination), and thereby interfere with participants'
due process rights and the timely completion of Commission proceedings.
A related concern was that the complexity of issues in Docket No. R97-1
and the extensive amount of material filed in support of the Service's
request made it difficult to determine the contents of some library
references; to distinguish between evidentiary and non-evidentiary
material; and to determine responsibility for sponsorship. A series of
rulings and orders addressed the immediate due process concerns of
Docket No. R97-1, and a related Notice of Inquiry (NOI) invited
comments on suggestions for improving the rule. See, for example, P.O.
Ruling R97-1/20 (September 17, 1997); Order No. 1201 (November 4,
1997); and NOI No. 1, Question 3 (September 17, 1997). The comments are
available for review in the Commission's docket room.
Scope of Proposed Rulemaking
The Commission proposes a limited update of its rules of practice
to address certain aspects of the controversy that surfaced in Docket
No. R97-1. Among other things, the revisions require that approval of
the designation of material as a library reference be obtained through
a motion. They also specify circumstances or conditions, in addition to
those already identified in Commission rules, under which material can
be designated as a library reference. The revisions also improve the
labeling and description of material contained in library references,
and require participants to file an electronic version of the material,
absent a satisfactory demonstration of why an electronic version cannot
be supplied, or should not be required to be supplied. These changes
effectively eliminate the need for the special rule that was used in
Docket No. R97-1, but do not address all of the issues that arose with
respect to library references in Docket No. R97-1 or preclude the
possibility that special rules governing the use of library references
may continue to be needed. The remaining discussion briefly reviews
comments submitted in response to NOI No. 1 in Docket No. R97-1;
describes proposed revisions, and sets out proposed changes.
Comments Submitted in Response to NOI No. 1
In its response to the NOI, Nashua Photo Inc., District Photo Inc.,
Mystic Color Lab and Seattle Filmworks, Inc. (NDMS) state that they do
not view ``the mere act of labeling a particular document as a library
reference as especially problematic,'' even if the document is not
voluminous as now anticipated by the Commission's rules. NDMS Response
to NOI No. 1 on Interpretation of Commission Rules Authorizing the Use
of Library References (October 3, 1997) at 2. They add:
In fact, it may be a relatively harmless procedure if the party
submitting the library reference feels the information in the
library reference is information few would want to read, or that
inclusion with testimony would be unduly burdensome, or divert the
reader, or if the information is in the nature of a secondary source
which is provided to facilitate access by other parties. Except for
abuse, the designation of a document as a library reference should
not, of itself, create a serious issue in a rate or classification
proceeding.
Id. at 2.
However, NDMS further observe:
Designation of library references becomes abusive if the party
offering the library reference offers it with one or more of the
following purposes or results: (i) To circumvent the requirement for
the presentation of record evidence before the Commission; (ii) to
circumvent the requirement that a live witness vouch for the
accuracy and reliability of the study (or other information); (iii)
to circumvent the requirement that a live witness be made available
for written or oral cross-examination; or (iv) to interpose delay
and unnecessary discovery and motions practice and associated
expense on intervenors during a statutorily-limited proceeding where
every day counts.
Id. at 2-3.
Alliance of Nonprofit Mailers (ANM)
ANM observes that the Commission has not set a minimum page limit
or word count as a condition for designating a document as a library
reference, but says it is ``unlikely that a blanket rule of this kind
would be useful.'' ANM Comments (October 3, 1997) at 1-2. ANM also
notes that a document of general interest and importance may warrant
individual service even if voluminous and, conversely, that a document
devoid of general interest or importance may be ``too voluminous
reasonably to be distributed'' by individual service even if the
document is short. Id. at 2.
In the absence of a bright line standard, ANM says that ``deciding
which Postal Service library references were not `too voluminous
reasonably to be distributed' is likely to be more contentious than
helpful.'' Id. Thus, instead of establishing a minimum page count or
word count for library references, ANM suggests that the Commission
should consider requiring parties sponsoring library references to
provide individual copies to interested parties upon request. It
further states that if this approach is adopted, the Commission might
consider the advisability of prohibiting parties, with the possible
exception of the Postal Service and the Commission's Office of the
Consumer Advocate (OCA), from submitting blanket requests for copies of
all library references. Id. Also, ANM said the Commission should make
mandatory the now-voluntary practice of submitting library references
in
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electronic form for posting on, and downloading from, the Commission
web site. Id.
ANM also states that the ``formalities of designating library
references are far less critical than the need to ensure that data,
studies or other information in a library reference, if relied upon by
the sponsoring party, are open to meaningful cross-examination.'' Id.
Therefore, it suggests that a party choosing to rely on a library
reference in support of its case should be required to offer a witness
sponsoring the library reference for cross-examination, except when the
information at issue is of a kind that is normally admissible without a
sponsoring witness, such as a statement against interest, or an
admission by an adverse party. Id. at 3-4. ANM further contends that
the Postal Service should be required to identify--when filing its
formal request and written case-in-chief, but no later than the
beginning of hearings--which portions of which library references will
be sponsored into evidence, and by which witnesses. Id. at 4.
Newspaper Association of America (NAA)
NAA maintains that instead of revisions to existing rules, there
simply should be adherence to and serious enforcement of the rules as
they now exist. NAA Comments in Response to NOI No. 1 at 2 (October 3,
1998).
Parcel Shippers Association (PSA)
PSA's response does not directly address revisions, but cites its
September 17, 1997 Memorandum of Law on the Issue of the Evidentiary
Value of Unsponsored Library References, which reviewed PSA's concerns
about the Service's reliance on unsponsored library references not only
in Docket No. R97-1, but in Docket No. MC95-1 as well. PSA Response to
NOI No. 1 at 1 (October 2, 1997). PSA notes that its memorandum makes
clear that it ``is concerned about the status of Library Reference H-
108, currently anonymously authored and unsponsored, but heavily relied
upon by several Postal Service witnesses' filed testimony as the source
of their testimony.'' Id.
Office of the Consumer Advocate (OCA)
In the course of extensive comments, the OCA notes that an ongoing
problem with library references is that ``a fair number of them have
merely been deposited in the Commission's docket room without any
explanation for their purpose and being.'' OCA Response to NOI No. 1 on
Interpretation of Commission Rules Authorizing the Use of Library
References at 10 (October 3, 1997). It contends that a ``roadmap'' is
necessary to ensure that it can evaluate the evidence contained in
library references. Id. at 12. A related problem, according to the OCA,
is the incompleteness of explanation about what is contained in a
library reference. Id. at 20. It observes:
* * * [USPS-LR-]H-146 described six computer programs that were
not discussed in the Postal Service's direct testimony.
Interrogatory OCA/USPS-T-12-35 was necessary to elicit information
concerning the objectives and uses of such programs, and how the
program may have changed over time. The Postal Service's failure to
state clearly (without having the information extracted by OCA) that
the outputs of these programs are used in the testimony and
workpapers of witness Alexandrovich demonstrates how the Postal
Service misuses the opportunity to file what is, in reality,
evidence, as matter buried within a library reference.
Id. at 20 (fn. omitted).
The OCA suggests that Rule 53 should be amended to require the
Service to identify, at the time it files its request, the evidence on
which it intends to rely, and the witness whose responsibility it will
be to answer questions concerning all filed material. Id. at 21. Among
other things, the OCA also suggests amendments to address the
sponsorship of institutional responses and surveys and what it refers
to as an ``administrative change'' which would require a party filing a
library reference to supply both the statistical information and the
accompanying text in diskette form. Id. at 22-27.
Postal Service
The Postal Service acknowledges that the Docket No. R97-1
experience may justify clarifying or revising the library reference
practice, but indicates it ``does not believe that it is a foregone
conclusion that a formal rulemaking is necessary. * * *'' Response of
the United States Postal Service to NOI No. 1 at 4 (October 6, 1997).
It suggests that ``[f]urther clarification or refinement of the
Commission's existing practices, as well as a better understanding of
the effect on the evidentiary record, may obviate a formal rule
change.'' Id.
Proposed Revisions
Based on recent experience in Docket No. R97-1 and other dockets,
and on the comments submitted in response to NOI No. 1, the Commission
has determined that certain improvements in its rules of practice are
necessary and desirable. The Commission's proposal draws on suggestions
and observations made in comments briefly reviewed above. Since the
practice of allowing participants to designate material as a library
reference is intended to foster convenience, a central focus of the
revisions is on adequate identification of material contained in a
library reference and its relationship to issues in the proceeding. The
proposal does not include a page limit, but anticipates that if
``volume'' or length is a reason for designating material as a library
reference, this will be addressed in the participant's motion. An
electronic version of the document or material is to be filed, absent a
showing of why this cannot or should not be supplied.
The most significant change is the introduction of formal motion
practice, with conditional acceptance of the material proposed for
designation pending a ruling. The proposed rule provides that the
motion is to affirmatively address various matters, such as an
explanation of how the material relates to the participant's case or to
issues in the proceeding; whether the material will be entered into the
evidentiary record; and the anticipated sponsor.
The rule reflects the longstanding principle, which appears in the
existing rule, that designation of a material as a library reference
and acceptance in the Commission's docket room does not confer
evidentiary status on the material.
List of Subjects in 39 CFR Part 3001
Administrative practice and procedure, Postal Service.
For the reasons stated in the preamble, 39 CFR 3001.31 is amended
as follows:
PART 3001--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 3001 continues to read as
follows:
Authority: 39 U.S.C. 404(b), 3603, 3622-24, 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. 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
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for identification, and, if properly authenticated, the relevant and
material parts thereof 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.
(2) Library references. 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. The practice of filing a library reference
is authorized primarily as a convenience to participants and the
Commission under certain circumstances. These include:
(i) when the participant satisfactorily demonstrates that the
physical characteristics of the material, such as number of pages or
bulk, are reasonably likely to render compliance with service
requirements unduly burdensome;
(ii) when the participant satisfactorily demonstrates that 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;
(iii) when 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;
(iv) when the participant satisfactorily demonstrates that the
reference to, identification of, or use of the material would be
facilitated if it is filed as a library reference; or
(v) when otherwise justified by circumstances, as determined by the
Commission or presiding officer.
(3) Form and timing of required demonstration. The requisite
demonstration shall be provided in the form of a motion. In general,
the motion shall be accompanied by the simultaneous filing, with the
Commission's docket section, of a copy of the material proposed for
designation as a library reference. If appropriate, a comprehensive
description of the material may be filed with the docket section in
lieu of the material itself.
The motion shall set forth with particularity the reason(s) why
designation of the material as a library reference is being sought;
explain how the material relates to the participant's case or to issues
in the proceeding; indicate whether the material contains a survey or
survey results; and provide a good-faith indication of whether the
participant anticipates that the material will be entered, in whole or
in part, into the evidentiary record. The motion shall also identify
authors or others materially contributing to the preparation of the
library reference.
If the participant filing the library reference anticipates seeking
to enter all or part of the material contained therein into the
evidentiary record, the motion also shall identity portions expected to
be entered and the expected sponsor(s).
(4) Conditional acceptance. Material accompanying a motion invoking
the library reference designation shall be accepted in the Commission's
docket section conditionally, pending a ruling on the merits of the
motion.
(5) Labels and descriptions. Material proposed to be 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. In addition, material designated as a library
reference shall include a preface or summary addressing the following
matters: The proceeding and document or issue to which the material
relates; the identity of the participant designating the library
reference; the identity of the witness or witnesses who will be
sponsoring the material or the reason why a sponsor cannot be
identified; and to the extent feasible, other library references or
testimony referred to within. In addition, the preface or summary shall
explicitly indicate whether the library reference is an update or
revision to a library reference filed in another Commission proceeding,
and provide an adequate identification of the predecessor material.
(6) 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.
(7) 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.
* * * * *
Dated: August 27, 1998.
Margaret P. Crenshaw,
Secretary.
[FR Doc. 98-23635 Filed 9-2-98; 8:45 am]
BILLING CODE 7710-FW-P
