Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations 12113

potential costs and benefits under

section 6(a)(3) of that order. It has been

exempted from review by the Office of

Management and Budget under that

order. It is not significant under the

regulatory policies and procedures of

the Department of Transportation (DOT)

(44 FR 11040, February 26, 1979). The

Coast Guard expects the economic

impact of this proposal to be so minimal

that a full Regulatory Evaluation under

paragraph 10e of the regulatory policies

and procedures of DOT is unnecessary.

Federalism

This action has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

the proposed rulemaking does not have

sufficient federalism implications to

warrant the preparation of a Federalism

Assessment.

Environmental Assessment

This final rule has been thoroughly

reviewed by the Coast Guard and

determined to be categorically excluded

from further environmental

documentation in accordance with

section 2.B.2.c. of Commandant

Instruction M16475.1B.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation

(water), Reporting and recordkeeping

requirements, Security measures,

Waterways.

Regulation

In consideration of the foregoing, part

165 of title 33, Code of Federal

Regulations, is amended as follows:

PART 165—[AMENDED]

1. The authority citation for part 165

continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191;

33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5;

49 CFR 1.46.

2. A new § 165.T13–002 is added to

read as follows:

§ 165.T13–002 Safety Zone: Puget Sound,

Washington.

(a) Location. The following area is a

safety zone: All waters within 300 yards

of the tugs STACEY FOSS and

RICHARD FOSS, the towline, and the

barge NESTUCCA while in transit from

Puget Sound Naval Shipyard,

Bremerton, Washington, through U.S.

navigable waters until south of Latitude

47°32′ N., Queets, Washington, at 1 p.m.

(PDT) on March 23, 1995.

(b) Definitions. A designated

representative of the Captain of the Port

is any Coast Guard commissioned,

warrant, or petty officer who has been

authorized by the Captain of the Port,

Puget Sound, to act on his behalf. The

following officers have or will be

designated by the Captain of the Port:

the Coast Guard Patrol Commander and

the senior boarding officer on each

vessel enforcing the safety zone.

(c) Regulations. In accordance with

the general regulations in § 165.23 of

this part, entry into this zone is

prohibited unless authorized by the

Captain of the Port or his designated

representatives.

(d) Effective dates. This regulation

becomes effective on March 22, 1995 at

5 a.m. (PDT). It terminates when the

tugs STACEY FOSS and RICHARD

FOSS and the barge NESTUCCA are

south of Latitude 47°32′ N., Queets,

Washington, at 1 p.m. (PDT) on March

23, 1995, unless sooner terminated by

the Captain of the Port.

Dated: February 10, 1995.

R.K. Softye,

Captain, U.S. Coast Guard, Captain of the

Port, Puget Sound.

[FR Doc. 95–5385 Filed 3–3–95; 8:45 am]

BILLING CODE 4910–14–M

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.

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
12114 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations

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 nonunanimous 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-theboard 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
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations 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:

§ 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 81⁄2 inches wide by 101⁄2 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:

§ 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

§§ 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:

§ 3001.20a Limited participation by

persons not parties.

* * * * *

(c) Scope of participation. Subject to

the provisions of § 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 §§ 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 § 3001.25 through

§ 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:

§ 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 § 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
12116 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations

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 § 3001.9 and shall be served

upon other participants pursuant to

§ 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

§ 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 § 3001.9 and

on participants pursuant to § 3001.12(b).

* * * * *

6. Section 3001.26 is amended by

revising paragraphs (a) and (c) to read as

follows:

§ 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 § 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 § 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:

§ 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

§ 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 § 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:

§ 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]

BILLING CODE 7710–FW–P

39 CFR Part 3001

[Docket No. RM95–1; Order No. 1042]

Rules of Practice and Procedure

AGENCY: Postal Rate Commission.

ACTION: Final rule.

SUMMARY: In response to a petition filed

by the United States Postal Service, the

Postal Rate Commission initiated this

rulemaking to consider re-enactment of

special rules of practice and procedure

applicable to Postal Service requests to

change Express Mail rates in response to