[Federal Register Volume 60, Number 43 (Monday, March 6, 1995)]
[Rules and Regulations]
[Pages 12113-12116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5114]



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POSTAL RATE COMMISSION

39 CFR Part 3001

[Docket No. RM91-1; Order No. 1043]


Rules of Practice and Procedure

AGENCY: Postal Rate Commission.

ACTION: Final rule.

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SUMMARY: The Commission is publishing final rules amending its rules of 
practice adopted in Order No. 1043, issued February 17, 1995. The rules 
are based on revisions submitted as a proposed settlement of issues in 
Docket RM91-1, a rulemaking addressing general improvements in the 
Commission's rules of practice. The proposed revisions were published 
in the Federal Register (59 FR 8576) and comments have been received 
and considered. The differences between the rules as proposed and as 
adopted reflect conforming changes, editorial improvements, or 
clarification of intent.

EFFECTIVE DATE: March 6, 1995.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, Legal Advisor 
(202) 789-6820.

SUPPLEMENTARY INFORMATION: Two settlement agreements involving proposed 
improvements to the Commission's rules of practice were presented to 
the Commission in this docket. In response to the settlement 
coordinator's motion transmitting these agreements, the Commission 
incorporated the text of both agreements in a notice of proposed 
rulemaking, and requested comments. See 59 FR 8576, February 23, 1994. 
One involved a number of traditional, or standard, aspects of these 
rules, such as service and production specifications. This final rule 
adopts, with minor adjustments, revisions to the rules of practice 
contained in that proposal. The other proposed that participants be 
required to file certain documents in electronic form. Opposition to 
this settlement existed, and a new docket will shortly be established 
to further explore potential solutions to problems in this area.
    The Commission received five comments. Four commenters expressed 
general support for the proposed revisions, but singled out one or more 
specific changes for additional discussion. One commenter expressed no 
opinion on the rules as whole, but sought clarification of one proposed 
change.
    The Commission's evaluation of the settlement agreements and 
participants' comments leads to the publication of final rules that 
differ in several respects from the proposed rules. The main 
differences entail: the deletion of a proposed requirement related to 
filing documents in electronic form; the express exclusion of answers 
to interrogatories (and compelled answers) from the ``special request'' 
service practice otherwise applicable to discovery-related documents; 
removal of language restricting transcript corrections of Commission 
hearings to oral material; and clarification of minimum typeface size. 
Other differences reflect conforming changes and editorial 
improvements. A review of the rules and related comments follows.

Production Requirements (Rule 10(a)): Terminology and Formatting 
Instructions

    Existing rule 10(a) sets forth specifications for production and 
preparation of documents filed with the Commission. The revision 
updates these requirements to reflect modern office technology and 
practice. For example, the final rule replaces the term 
``typewritten,'' which currently appears as the title of the subsection 
and in the first sentence, with the term ``production'' or 
``produced,'' as appropriate. In addition, the final rule increases the 
amount of space available for text by easing longstanding margin and 
line-spacing restrictions. It also replaces the existing requirement 
that text be double spaced with language allowing spacing of not less 
than one [[Page 12114]] and one-half lines. The former reference to 
``type no smaller than elite'' is supplemented with a restriction 
against typeface sizes smaller than 12 points.
    The latter change responds to one commenter's request for 
clarification of the proposed change regarding minimum allowable 
typeface size. This commenter, David Popkin, notes that point size, 
which the proposed rule adopts as the new standard, is inappropriate 
because points represent letter height, not characters per inch. Mr. 
Popkin raises the possibility that in adopting new terminology, the 
proposed rule inadvertently imposes stiffer restrictions on typeface 
size than currently exist. If so, the imposition of these restrictions 
would be contrary to the thrust of other proposals, which generally 
provide participants with more, rather than less, flexibility. The 
Commission's resolution of this issue is influenced by two 
considerations. One is the absence of any affirmative indication that 
the settlement signatories intended to impose more stringent 
restrictions on type size than currently exist. The other is the 
assumption that the signatories wanted to reflect the emergence of word 
processing equipment, which often includes software containing 
proportional typefaces expressed in characters per inch. The Commission 
views these as complementary, rather than competing, interests that can 
be reconciled with a minor revision. Accordingly, the rule as adopted 
retains the existing reference to elite type, but adds language 
recognizing the growing use of typefaces expressed in characters per 
inch or points.

Action on Proposed Rule Requiring Documents To Be Filed in 
Electronic Form (Rule 10(d)) Deferred

    The proposal concerning electronic filing was agreed to by some, 
but not all, of the participants in the underlying rulemaking 
proceeding. The Postal Service, which did not support the proposal, 
reiterated its opposition to this change during the comment period. It 
asserted that it had encountered difficulty in generating diskette 
versions of its Docket No. R94-1 testimony and raised concerns about 
the potential for administrative problems. The Service further stated 
its conviction that this rule would not enhance efficiency or ease the 
burden on participants in the absence of uniform standards and an 
acceptable method of authentication. The Newspaper Association of 
America conditioned its support of the electronic filing provision on 
the Service's willingness to comply with it. The Office of the Consumer 
Advocate (OCA), which was a signatory to the non-unanimous settlement 
on electronic filing, reiterated its support for adoption of the rule 
as proposed but also formally requested that publication of the 
electronic filing rule be followed by notice of the Commission's 
interest in requiring that extensive database information be provided 
on CD-ROM media.
    The Commission believes that the benefits of filing documents in 
electronic form are substantial. However, the Commission's review of 
the proposed rule and the record that has been developed in the 
underlying docket indicate that important questions about the scope, 
intent and adequacy of the rule as proposed remain unanswered. 
Moreover, the success of this type of change depends heavily on the 
cooperation of the Postal Service and other active participants. The 
Service's opposition leads the Commission to defer action on the 
proposed rule pending an opportunity for a more focused discussion. 
This discussion could include consideration of a requirement addressing 
the filing of extensive database information on CD-ROM, as suggested by 
the OCA. Accordingly, the Commission plans to publish an advance notice 
of proposed rulemaking to further explore this topic.

Service Requirements Related to Discovery Requests (Rule 12(b) and 
Rules 25 Through 27)

    Existing rule 12(b), which addresses service by parties, generally 
requires that all documents be served upon all participants. This 
requirement has the potential to impose a burden on participants. In 
the interest of easing the service burden, the proposed settlement 
provision carved out an exception to rule 12(b)'s blanket service rule 
for discovery requests pursuant to rules 25 (interrogatories), 26 
(requests for production of documents) and 27 (requests for 
admissions). It also added the direction that ``Special requests for 
service by other participants shall be honored'' and a sentence 
providing that special requests may be served upon participants 
conducting discovery and was to identify the witness(es) involved.
    The preamble in the notice of proposed rulemaking acknowledged that 
a settlement conference participant had questioned whether the proposed 
revision accurately reflected the position of the conferees, as the 
terms applicable to service of answers appear to differ from those 
applicable to service of discovery requests and objections thereto. 
This participant's understanding was that the conferees intended for 
the ``special request'' provision to apply across-the-board. In 
recognition of this comment, the Commission indicated that in the 
absence of opposition, it would make appropriate changes reflecting a 
uniform service requirement.
    However, another conferee has submitted a comment objecting to 
applying the new ``special request'' requirement to the service of 
discovery answers. This commenter apparently supports retention of rule 
12(b)'s requirement of ``automatic'' service upon all participants for 
these filings. The commenter expresses no opposition to the ``special 
request'' practice for being served with discovery requests or 
objections.
    This system of limited service of discovery requests and objections 
was followed in the most recent omnibus rate case, Docket R94-1. While 
some parties chose to serve documents even when no special request had 
been received, this new system allowed interested intervenors to reduce 
the cost of participation if they wished to do so. The Commission 
believes that formalizing the practice of limited service of discovery 
requests and objections can considerably reduce the burden of 
participation in Commission proceedings. Given that participants' 
interest in answers to interrogatories may differ from their interest 
in the initial questions or objections thereto, and the Commission's 
indication that it would honor objections to across-the-board 
application of the service requirement, the rule as adopted does not 
apply to the service of answers to interrogatories (or compelled 
answers). Instead, answers to interrogatories will be subject to the 
general service requirement. By extension, service of compelled answers 
and supplemental answers should also follow the general rule.

Grace Period for Filing Signature Pages (Rule 25(b))

    Existing rule 25(b) requires that answers to interrogatories be 
signed by the person responding to them. The proposed rule allows a 10-
day grace period for filing signature pages if the witness involved is 
not available to sign the answers when filed. The terms of the rule 
recognize an exception to the general service requirements by providing 
that signature pages filed under this circumstance need be served only 
on the Commission, and not on participants. This provision was part of 
the unopposed settlement, and it generated no opposition during the 
recent comment period. The Commission agrees that this change 
[[Page 12115]] would be beneficial, and adopts the change as proposed.

Responsibilities of Limited Participants (Rule 20a(c))

    Existing rule 20a(c) provides that limited participators are not 
required to respond to discovery requests. The final rule qualifies 
this exception by requiring limited participators to respond to 
discovery requests when those requests are directed specifically to 
testimony limited participators have submitted. This provision was part 
of the unopposed settlement, submitted by the OCA, and generated no 
opposition during the most recent comment period. Accordingly, the rule 
is adopted as proposed.

Transcript Corrections (Rule 30(i))

    Existing rules do not explicitly address the scope of transcript 
corrections. The change proposed in the settlement agreement, as a new 
subsection (i) in rule 30, specifies that transcript corrections should 
be limited to corrections of material substantive error in the 
transcription of oral statements made at the hearing. The Commission 
agrees that clarification of the informal practice that has developed 
is useful, and welcomes this change. However, as official reporters 
sometimes transcribe written material presented at hearings as well as 
oral statements, the Commission believes it would be preferable to 
eliminate the restriction to ``oral statements.'' With this 
modification, the rule is adopted as proposed.

Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
Commission certifies that this rulemaking is not expected to have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis is not required.

List of Subjects in 39 CFR Part 3001

    Administrative practice and procedure, Postal Service.

    For reasons set out in the preamble, 39 CFR part 3001 is amended as 
follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation for part 3001 continues to read as 
follows:

    Authority: 39 U.S.C. 404(b), 3603, 3622-3624, 3661, 3662.

    2. Section 3001.10 is amended by revising paragraph (a) to read as 
follows:


Sec. 3001.10   Form and number of copies of documents.

    (a) Production. If not printed, documents filed with the Commission 
shall be produced on paper of letter size, 8 to 8\1/2\ inches wide by 
10\1/2\ to 11 inches long, with left- and right-hand margins not less 
than 1 inch and other margins not less than 0.75 inches, except tables, 
charts or special documents attached thereto may be larger if required, 
provided that they are folded to the size of the document to which they 
are attached. The impression shall be on only one side of the paper 
unless there are more than ten pages. The text shall be not less than 
one and one-half spaced except that footnotes and quotations may be 
single spaced. Any typeface not smaller than elite or a comparable size 
expressed in points or characters per inch may be used. If the document 
is bound, it shall be bound on the left side. Copies of documents for 
filing and service may be reproduced by any duplicating process that 
produces clear and legible copies.
* * * * *
    3. Section 3001.12 is amended by revising paragraph (b) to read as 
follows:


Sec. 3001.12   Service of documents.

* * * * *
    (b) Service by the parties. Every document filed by any person with 
the Commission in a proceeding shall be served by the person filing 
such document upon the participants in the proceeding individually or 
by such groups as may be directed by the Commission or presiding 
officer except for discovery requests governed by Secs. 3001.25 (a) and 
(c), 3001.26 (a) and (c), and 3001.27 (a) and (c). Special requests 
relating to discovery must be served individually upon the party 
conducting discovery and state the witness who is the subject of the 
special request.
* * * * *
    4. Section 3001.20a is amended by revising paragraph (c) to read as 
follows:


Sec. 3001.20a   Limited participation by persons not parties.

* * * * *
    (c) Scope of participation. Subject to the provisions of 
Sec. 3001.30(f), limited participators may present evidence which is 
relevant to the issues involved in the proceeding and their testimony 
shall be subject to cross-examination on the same terms applicable to 
that of formal participants. Limited participants may file briefs or 
proposed findings pursuant to Secs. 3001.34 and 3001.35, and within 15 
days after the release of an intermediate decision, or such other time 
as may be fixed by the Commission, they may file a written statement of 
their position on the issues. The Commission or the presiding officer 
may require limited participators having substantially like interests 
and positions to join together for any or all of the above purposes. 
Limited participators are not required to respond to discovery requests 
under Sec. 3001.25 through Sec. 3001.28 except to the extent that those 
requests are directed specifically to testimony which the limited 
participators provided in the proceeding; however, limited 
participators, particularly those making contentions under 39 U.S.C. 
3622(b)(4), are advised that failure to provide relevant and material 
information in support of their claims will be taken into account in 
determining the weight to be placed on their evidence and arguments.
    5. Section 3001.25 is amended by revising paragraphs (a), (b), (c) 
and (d) to read as follows:


Sec. 3001.25   Interrogatories for purpose of discovery.

    (a) Service and contents. In the interest of expedition and limited 
to information which appears reasonably calculated to lead to the 
discovery of admissible evidence, any participant may serve upon any 
other participant in a proceeding written interrogatories requesting 
nonprivileged information relevant to the subject matter in such 
proceeding, to be answered by the participant served, who shall furnish 
such information as is available to the participant. A participant 
through interrogatories may require any other participant to identify 
each person whom the other participant expects to call as a witness at 
the hearing and to state the subject matter on which the witness is 
expected to testify. The participant serving the interrogatories shall 
file a copy thereof with the Secretary pursuant to Sec. 3001.9 and 
shall serve a copy upon the Postal Service. Special requests for 
service by other participants shall be honored.
    (b) Answers. Each interrogatory shall be answered separately and 
fully in writing, unless it is objected to, in which event the reasons 
for objection shall be stated in the manner prescribed by paragraph (c) 
of this section. The party responding to the interrogatories shall 
serve the answers on the party who served the interrogatories within 20 
days of the service of the interrogatories or within such other period 
as may be fixed by the presiding officer, but before the conclusion of 
the hearing. The answers are to be signed by the person making them. If 
the person responding to the interrogatory is unavailable to 
[[Page 12116]] sign the answer when filed, a signature page must be 
filed within ten days thereafter with the Commission, but need not be 
served on participants. Copies of the answers to interrogatories shall 
be filed with the Secretary pursuant to Sec. 3001.9 and shall be served 
upon other participants pursuant to Sec. 3001.12(b).
    (c) Objections. In the interest of expedition, the bases for 
objection shall be clearly and fully stated. If objection is made to 
part of an interrogatory, the part shall be specified. A participant 
claiming privilege shall identify the specific evidentiary privilege 
asserted and state the reasons for its applicability. A participant 
claiming undue burden shall state with particularity the effort which 
would be required to answer the interrogatory, providing estimates of 
cost and work hours required, to the extent possible. An interrogatory 
otherwise proper is not necessarily objectionable because an answer 
would involve an opinion or contention that relates to fact or the 
application of law to fact, but the Commission or presiding officer may 
order that such an interrogatory need not be answered until a 
prehearing conference or other later time. Objections are to be signed 
by the attorney making them. The party objecting to interrogatories 
shall serve the objections on the party who served the interrogatories 
within 10 days of the service of the interrogatories. Copies of 
objections to interrogatories shall be filed with the Secretary 
pursuant to Sec. 3001.9 and shall be served upon the proponent of the 
interrogatory and the Postal Service. Special requests for service by 
other participants shall be honored.
    (d) Compelled answers. The Commission, or the presiding officer, 
upon motion of any participant to the proceeding, may compel answer to 
an interrogatory to which an objection has been raised if the objection 
is found not to be valid, or may compel an additional answer if the 
initial answer is found to be inadequate. Such compelled answers shall 
be served on the party who moved to compel the answer within 10 days of 
the date of the order compelling an answer or within such other period 
as may be fixed by the presiding officer, but before the conclusion of 
the hearing. Copies of the answers shall be filed with the Secretary 
pursuant to Sec. 3001.9 and on participants pursuant to 
Sec. 3001.12(b).
* * * * *
    6. Section 3001.26 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 3001.26   Requests for production of documents or things for 
purpose of discovery.

    (a) Service and contents. In the interest of expedition and limited 
to information which appears reasonably calculated to lead to the 
discovery of admissible evidence, any participant may serve on any 
other participant to the proceeding a request to produce and permit the 
participant making the request, or someone acting in his/her behalf, to 
inspect and copy any designated documents or things which constitute or 
contain matters, not privileged, which are relevant to the subject 
matter involved in the proceeding and which are in the custody or 
control of the participant upon whom the request is served. The request 
shall set forth the items to be inspected either by individual item or 
category, and describe each item and category with reasonable 
particularity, and shall specify a reasonable time, place and manner of 
making inspection. The participant requesting the production of 
documents or things shall file a copy of the request with the Secretary 
pursuant to Sec. 3001.9 and shall serve copies thereof upon the Postal 
Service. Special requests for service by other participants shall be 
honored.
* * * * *
    (c) Objections. In the interest of expedition, the bases for 
objection shall be clearly and fully stated. If objection is made to 
part of an item or category, the part shall be specified. A participant 
claiming privilege shall identify the specific evidentiary privilege 
asserted and state the reasons for its applicability. A participant 
claiming undue burden shall state with particularity the effort which 
would be required to answer the request, providing estimates of cost 
and work hours required, to the extent possible. Objections are to be 
signed by the attorney making them. The party objecting to a request 
shall serve the objection on the party requesting production of 
documents or things, upon the Secretary pursuant to Sec. 3001.9 and 
upon the Postal Service, within 10 days of the request for production. 
Special requests for service by other participants shall be honored.
* * * * *
    7. Section 3001.27 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 3001.27   Requests for admissions for purpose of discovery.

    (a) Service and content. In the interest of expedition any 
participant may serve upon any other participant a written request for 
the admission, for purposes of the pending proceeding only, of any 
relevant, unprivileged facts, including the genuineness of any 
documents or exhibits to be presented in the hearing. The participant 
requesting the admission shall file a copy of the request with the 
Secretary pursuant to Sec. 3001.9 and shall serve copies thereof upon 
the Postal Service. Special requests for service by other participants 
shall be honored.
* * * * *
    (c) Objections. In the interest of expedition, the bases for 
objection shall be clearly and fully stated. If objection is made to 
part of an item, the part shall be specified. A participant claiming 
privilege shall identify the specific evidentiary privilege asserted 
and state the reasons for its applicability. A participant claiming 
undue burden shall state with particularity the effort which would be 
required to answer the request, providing estimates of cost and work 
hours required to the extent possible. Objections are to be signed by 
the attorney making them. The party objecting to requests for 
admissions shall serve the objections on the party requesting 
admissions, upon the Secretary pursuant to Sec. 3001.9 and upon the 
Postal Service, within 10 days of the request. Special requests for 
service by other participants shall be honored.
* * * * *
    8. Section 3001.30 is amended by adding paragraph (i) to read as 
follows:


Sec. 3001.30   Hearings.

* * * * *
    (i) Transcript corrections. Corrections to the transcript of a 
hearing should not be requested except to correct a material 
substantive error in the transcription made at the hearing.

    Issued by the Commission on February 17, 1995.
Margaret P. Crenshaw,
Secretary.
[FR Doc. 95-5114 Filed 3-3-95; 8:45 am]
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