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
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations 12117

1Additionally, while no provision had been made

for reply comments, Advertising Mail Marketing

Association (AMMA) submitted reply comments on

February 3, 1995, together with a motion for leave

to file such comments. In order to avoid prejudice

to other parties that may have been inclined to file

replies, the Commission shall grant AMMA’s

motion only in part, and will consider its comments

strictly as an expression of support for re-enactment

of the pre-existing rules.

2See National Association of Greeting Card

Publishers v. U.S. Postal Service, 462 U.S. 810, 834

(1983): ‘‘The Rate Commission is to assign

remaining costs on the basis of the other eight

factors set forth by § 3622(b).’’

3Section 57a(c) requires that every formal request

under §§ 57 through 57c ‘‘contain an explanation of

why the change proposed by the Postal Service is

a reasonable response to the change in the market

for expedited delivery services to which it is

intended to respond.’’

market conditions. Interested persons

were invited to comment. 59 FR 65985–

65987 (December 22, 1994). After

reviewing the comments submitted, the

Commission has determined that the

published rules should be re-enacted,

subject to a five-year sunset provision.

EFFECTIVE DATE: These rules will become

effective March 6, 1995 and ending

March 6, 2000 if not re-enacted by the

Commission after the provision of an

opportunity for public comment.

ADDRESSES: Correspondence should be

sent to Margaret P. Crenshaw, Secretary

of the Commission, 1333 H Street NW,

Washington, DC 20268–0001.

FOR FURTHER INFORMATION CONTACT:

Stephen Sharfman, Legal Advisor

(telephone: (202) 789–6820).

SUPPLEMENTARY INFORMATION: On August

15, 1994, the United States Postal

Service filed a petition for institution of

a rulemaking to re-enact Commission

rules that establish special procedures

for considering Postal Service requests

to change Express Mail rates in response

to market conditions. These rules,

codified at 39 CFR 3001.57 through

3001.57c, were adopted as the

culmination of the Commission’s Docket

No. RM88–2 in August, 1989; at that

time, the Commission included a fiveyear sunset provision in 39 CFR

3001.57(b). Order No. 836, 54 FR 33681

(August 16, 1989). Consequently, by

their own terms the rules ceased to be

effective in mid-August of 1994.

The Commission granted the Postal

Service’s petition and began this

rulemaking on December 14, 1994.

Order No. 1038; Notice of Proposed

Rulemaking, 59 FR 65985–87 (December

22, 1994). In its Notice of Proposed

Rulemaking, the Commission published

the pre-existing rules, stated its

preliminary agreement with the Postal

Service’s position that the Express Mail

market response rules should be

retained, and established January 23,

1995, as the due date for comments by

interested parties. Id. at 65985.

Two sets of comments were submitted

in response to the Notice of Proposed

Rulemaking in this docket.1 United

Parcel Service (UPS), a competitor of the

Postal Service in the expedited delivery

market, opposes re-enactment of the

rules because: (1) Circumstances have

changed since their initial adoption in

a manner that allegedly negates any

possible justification for their continued

existence; (2) the rules are unnecessary

because other available Commission

rules provide adequate avenues for

expedited consideration of specific

Postal Service rate requests; and (3) the

rules allegedly are contrary to the letter

and spirit of the Postal Reorganization

Act, the Administrative Procedure Act,

and fundamental considerations of due

process. The Commission’s Office of the

Consumer Advocate (OCA) opposes reenactment on similar grounds: that there

is less demonstrable need for, and

opportunity to use, the rules than was

anticipated when they were adopted in

Docket No. RM88–2; and that it would

be more efficient to devise

comprehensive rules of procedure

applicable to any class of mail, in the

context of the Commission’s Procedural

Streamlining Inquiry, Docket No.

RM95–2. Because these comments raise

a variety of issues, the latter will be

grouped by category for consideration.

I. Alleged Legal Defects

Commenter United Parcel Service

argues that certain features of rules 57

through 57c violate pertinent portions of

the Postal Reorganization Act, the

Administrative Procedure Act, and

applicable due process requirements.

For the most part, these comments

replicate earlier arguments considered

and rejected during the course of the

RM88–2 proceeding, and the

Commission finds them equally

unpersuasive now.

UPS suggests that by contemplating

the recommendation of Express Mail

rates near the level of estimated

attributable costs, the market response

rules could yield rates which fail to

recover the portion of institutional costs

‘‘reasonably assignable’’ to Express

Mail, in contravention of 39 U.S.C.

3622(b)(3). UPS Comments at 7–8. UPS

also argues that the recommendation of

such rates would produce an overall

rate schedule that fails to satisfy the

‘‘fair and equitable’’ standard of

§ 3622(b)(1). Id. at 8–9. However, these

criticisms overlook the special rationale

on which the market response rules are

premised, and the particular restrictions

on the rates which the Postal Service

can propose under the rules. The

appropriate level of ‘‘reasonably

assignable’’ costs is determined by

reference to the non-cost factors in

§ 3622(b); 2 the Postal Service could

invoke rules 57 through 57c only where

one or more of the policies of the Act

arguably applies with such force as to

justify a minimal contribution to

institutional costs.3 Additionally, the

rules establish two different protective

rate floors which the Postal Service

must observe in its requests. Under

section 57b(b), the Service is forbidden

to propose rates less than the greater of

average per piece attributable costs: (1)

As determined in the most recent

omnibus rate case, or (2) as estimated

for the most recent fiscal year for which

information is available. Section

57b(b)(2) also prohibits proposal of a

rate ‘‘for any rate cell which is lower

than the estimated test period

attributable cost of providing that rate

cell with service.’’ The Commission

retained these restrictions in the final

rules adopted in Docket No. RM88–2,

over the objections of the Postal Service,

in order ‘‘to eliminate the risk that new

Express Mail rates would be a burden

on other classes of mail[,]’’ and to

ensure ‘‘that the relationships among

the classes of mail—in terms of

contribution to institutional costs—are

disturbed as little as possible.’’ Order

No. 836 at 15, 13. Thus, the Commission

has already considered and

accommodated the concerns raised by

UPS, and there is no reasonable basis for

concern that re-enactment of the rules

would degrade the Commission’s sound

application of the § 3622(b) (1) and (3)

factors.

The Commission also rejects the

claims of UPS that the market response

rules constitute ‘‘a clear license to

engage in unfair competition with

private sector enterprises, in violation of

Section 3622(b)(4) [,]’’ and that they

‘‘violate the discrimination prohibition

in Section 403(c) of the Act’’ by

establishing a preference for Express

Mail users. UPS Comments at 9. During

the course of the RM88–2 proceeding

the Commission received comments

from several parties—including the

Bureau of Competition of the Federal

Trade Commission—regarding the

Postal Service’s participation in the

expedited parcel delivery market. On

the basis of that record, the Commission

concluded that there was no

justification for:

* * * any finding that the Postal Service is

so restricting the ability of other firms to

compete in the expedited delivery market

through use of the Private Express Statutes

that it should not be given even the potential
12118 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations

4See Costle v. Pacific Legal Foundation, 445 U.S.

198, 213–16 (1980).

5The Commission cannot agree with the

contentions of UPS and OCA that the current

modest contribution of Express Mail to the

institutional costs of the Postal Service represents

an ‘‘irreducible minimum’’ (OCA Comments at 4),

leaving no room for operation of the market

to change its rate more quickly in response

to developments in the market.

Notice of Proposed Rule, 54 FR 11404–

11405 (March 20, 1989). The

Commission also stated its resolve to

‘‘take into account the effect on the

market’’ when recommending rates

under the expedited rules. Id. No

commenter in this docket claims that

the Postal Service has engaged in anticompetitive conduct in the expedited

delivery market in the interim.

As to the claim of preference in

violation of § 403(c), the Commission

concluded in RM88–2 that adoption of

expedited procedural rules would not

constitute ‘‘undue or unreasonable’’

discrimination because ‘‘Express Mail is

the only class for which evidence

supporting such rules has been given.’’

Id. at 11399. Lacking evidence of a need

to change rates for other classes

expeditiously in response to

competition, and of the likely impact

such rate changes would have on postal

finances, the Commission found it

unreasonable to reject the proposed

rules for Express Mail. The Commission

also alluded to the possibility of

extending the applicability of those

rules, ‘‘[i]f it later appears that similar

procedures might be suitable for another

class. * * *’’ Id. The Commission is in

much the same posture in this docket,

but with the significant difference that

Docket No. RM95–2 has been initiated

to consider ‘‘potential mechanisms for

expediting its proceedings conducted

under 39 U.S.C. 3624(a),’’ which

includes rate change proceedings. See

59 FR 65987 (December 22, 1994).

Consequently, the Commission’s prior

conclusion that the rules for Express

Mail pose no undue preference problem

is now reinforced by its

contemporaneous docket to consider

similar mechanisms for other types of

requests.

The Commission also finds no merit

in the arguments that the rules would

operate in violation of the hearing

requirements of the Administrative

Procedure Act, or would trench upon

the due process rights of intervenors.

Contrary to those claims, the Postal

Service would be required to sustain its

burden as proponent under rules 57

through 57c, beginning with the data

filing requirements laid down in

§ 3001.57a. If the Commission

concludes that the Service’s

presentation poses one or more genuine

issues of material fact, either at the

suggestion of an intervenor or on its

own motion, a formal hearing would be

held. See § 57b(e)(5). Only in the event

that no such issue was identified—an

extremely rare occurrence in the

Commission’s institutional experience—

would a hearing not be held. In the

absence of any genuine issue of material

fact, the Commission would be under no

obligation to conduct a hearing.4

The discovery and hearing procedures

established in rule 57b admittedly

require prompt action by all parties

involved, in furtherance of the declared

purpose ‘‘to allow for consideration of

Express Mail Market Response Rate

Requests within 90 days, consistent

with the procedural due process rights

of interested parties.’’ § 3001.57c.

However, in fashioning these

procedures in Docket No. RM88–2, the

Commission devoted considerable effort

to striking a workable balance between

expedition and the due process rights of

interested parties. In response to

comments, the Commission rejected

some of the expedited procedures

proposed by the Postal Service and

supplemented others. Notice of

Proposed Rulemaking (Second Notice),

54 FR 11401–11403 (March 20, 1989);

Notice of Proposed Rulemaking (Third

Notice), 54 FR 25137–25139 (June 13,

1989). Nor did the Commission overlook

the need for flexibility in administering

the expedited procedural schedule. It

stated: ‘‘If any particular date causes

difficulty, the Presiding Officer can

grant an extension of time * * *. When

the Commission reviews its experience

with these rules, we will be prepared to

judge whether any of the scheduled

dates should be changed in the rules.’’

Third Notice of Proposed Rulemaking,

54 FR 25139. Consequently, at this time

the Commission finds no basis for

concern that re-enactment of these

carefully considered rules would

jeopardize the due process rights of

participants in proceedings under rules

57 through 57c.

II. Institutional Issues

United Parcel Service also comments

that re-enactment of the rules would be

inappropriate because they allegedly

pose a ‘‘risk of seriously undermining

Congress’ carefully crafted division of

authority between the Commission and

the Postal Service.’’ UPS Comments at

15. UPS suggests that the rules would

improperly delegate the Commission’s

responsibility for determining

attributable costs to the Postal Service;

could be invoked to nullify the

Commission’s rate recommendations for

Express Mail in omnibus rate decisions

and introduce reduced rates that could

be in effect for years; and would serve

as ‘‘a device for selectively deregulating

postal ratemaking in the case of only

one favored class of mail.’’ Id. at 15–16.

In the Commission’s view, these

comments mischaracterize the purpose

and intended operation of the Express

Mail market response rules.

As the source and repository of the

raw data from which cost estimates are

derived, the Postal Service necessarily

provides the principal input to the

process of determining attributable cost

levels. The Commission’s functions

thereafter are to provide a forum in

which interested parties can probe and

challenge the Service’s estimates; and to

decide whether the Service’s proposals

are supported by substantial evidence

and consistent with the Postal

Reorganization Act’s policies and

factors. Rules 57 through 57c provide

expedited procedures, but also preserve

these essential functions. They do not

allow the Commission to recommend

Express Mail rates that are unsupported

by credible cost evidence or otherwise

inconsistent with statutory factors. See

the rule for decision in § 3001.57c. They

will not be allowed to become a

substitute for scrutiny in omnibus rate

cases, as the Commission clearly stated

in Docket No. RM88–2. See Second

Notice of Proposed Rulemaking, 54 FR

11403 (March 20, 1989). Therefore, in

no meaningful sense can they be

characterized as a vehicle for

deregulating Express Mail rates.

III. The Question of Need

Both United Parcel Service and the

Office of the Consumer Advocate take

the position that, because of the Postal

Service’s failure to invoke rules 57

through 57c during their initial five-year

period of effectiveness, and changed

circumstances in the expedited delivery

market in that time, there is no

demonstrable need for re-enacting the

rules. On the basis of available

information, the Commission believes

that this conclusion may be incorrect,

and at the very least is premature. While

the expedited delivery market doubtless

has changed in five years, the Postal

Service appears to be correct in its

characterization that, ‘‘[t]he most

important feature that distinguishes

competitors is price.’’ Postal Service

Petition at 4; see PRC Op. R94–1,

November 30, 1994, para. 5402. In this

fiercely competitive market, it is

possible that expeditious adjustments in

Express Mail rates may be useful to

sustain the viability of that service to

meet future competitive exigencies.5
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations 12119

response rules. In recommending a 119 percent

coverage for Express Mail in the recent omnibus

rate case—a target ‘‘slightly lower than that

proposed by the Postal Service’’—the Commission

neither stated nor suggested that this figure was an

‘‘irreducible minimum.’’ See PRC Op. R94–1, para.

4052. On the contrary, the finding that 119 percent

is an acceptable coverage factor for Express Mail at

this time suggests (all other things being equal) that

market response rates nearer average estimated

attributable costs would be more acceptable than if

a higher coverage factor had been recommended in

the last omnibus rate case.

6For the sake of clarity, section 57(b) of the reenacted rules has been amended by deletion of the

word ‘‘initially’’ from its first sentence.

Consequently, the Commission will reenact rules 57 through 57c for an

additional five-year period.6

IV. Regulatory Evaluation

It has been determined pursuant to 5

U.S.C. 605(b) that these rules will apply

exclusively to the United States Postal

Service in proceedings conducted by the

Postal Rate Commission, and to parties

who choose to participate in those

proceedings. Therefore, it is certified

that these rules will not have a

significant impact on a substantial

number of small entities under the

terms of the Regulatory Flexibility Act,

5 U.S.C. 501 et seq. Because these rules

will only apply to the Postal Service and

other participants in Commission

proceedings, it has also been

determined that these rules do not have

sufficient federalism implications to

warrant the preparation of a Federalism

Assessment pursuant to Executive Order

12612. Inasmuch as the rules impose

information-gathering and reporting

requirements exclusively upon the

United States Postal Service for the

purpose of conducting postal rate

proceedings, they do not contain any

information collection requirements as

defined in the Paperwork Reduction Act

[44 U.S.C. 3502(4)], and consequently

the review provisions of 44 U.S.C. 3507

and the implementing regulations in 5

CFR part 1320 do not apply.

List of Subjects in 39 CFR Part 3001

Administrative practices and

procedure, Postal Service.

For the 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 39 CFR

part 3001 continues to read as follows:

Authority: 39 U.S.C. 404(b), 3603, 3622–

24, 3661, 3662, 84 Stat. 759–62, 764, 90 Stat.

1303; [5 U.S.C. 553], 80 Stat. 383.

2. Sections 3001.57 through 3001.57c

are added to subpart B to read as

follows:

§ 3001.57 Market Response Rate Requests

for Express Mail service—purpose and

duration of rules.

(a) This section and §§ 3001.57a

through 3001.57c only apply in cases in

which the Postal Service requests an

expedited recommended decision

pursuant to section 3622 of the Postal

Reorganization Act on changes in rates

and fees for Express Mail service, where

the proposed changes are intended to

respond to a change in the market for

expedited delivery services for the

purpose of minimizing the loss of

Express Mail contribution to

institutional costs recommended in the

most recent omnibus rate case. These

rules set forth the requirements for filing

data in support of such rate proposals

and for providing notice of such

requests, and establish an expedited

procedural schedule for evaluating

Market Response Rate Requests. These

rules may not be used when the Postal

Service is requesting changes in Express

Mail rates as part of an omnibus rate

case. Further explanation concerning

these rules can be found at 54 FR

11394–11413 (March 20, 1989), 54 FR

25132–42 (June 13, 1989) and PRC

Order No. 836.

(b) This section and §§ 3001.57a

through 57c are to be effective for the

limited period of five years from the

date of their adoption by the

Commission. During that period the

Commission will continue to analyze

the need for these rules to enable the

Postal Service to respond to changes in

the market for expedited delivery

services, and the impact of these

procedures on Postal Service proposals.

These rules will cease to be effective at

the end of this period unless they have

been reissued by the Commission

following a Notice of Proposed

Rulemaking published in the Federal

Register which provides an appropriate

opportunity for public comments.

§ 3001.57a Market Response Rate

Requests—data filing requirements.

(a) Each formal request made under

the provisions of §§ 3001.57 through

3001.57c shall be accompanied by such

information and data as are necessary to

inform the Commission and the parties

of the nature and expected impact of the

change in rates proposed. Except for

good cause shown, the information

specified in paragraphs (c) through (i) of

this section shall also be provided with

each request.

(b) Except as otherwise expressly

provided in this section, the information

required by § 3001.54 (b) through (r)

must be filed only for those subclasses

and services for which the Postal

Service requests a change in rates or

fees. Test period volume, cost, and

revenue estimates presented in

satisfaction of rule 57a shall be for four

postal quarters beginning after the filing

date of the request. The cost rollforward may be developed by extending

the cost forecasting model used in the

last omnibus rate case (utilizing

available actual data). Volume and

revenue estimates required by these

rules shall utilize, to the extend

practicable, the factors identified in rule

54(j)(6), and must be fully explained,

with all available supporting

documentation supplied, but they need

not be econometrically derived.

(c) Every formal request made under

the provisions of §§ 3001.57 through

3001.57c shall contain an explanation of

why the change proposed by the Postal

Service is a reasonable response to the

change in the market for expedited

delivery services to which it is intended

to respond.

(d) Every formal request made under

the provisions of §§ 3001.57 through

3001.57c shall be accompanied by the

then effective Domestic Mail

Classification Schedule sections which

would have to be altered in order to

implement the changes proposed by the

Postal Service, and, arranged in a

legislative format, the text of the

replacement Domestic Mail

Classification Schedule sections the

Postal Service proposes.

(e) In addition to the required test

period cost estimates, every formal

request made under the provisions of

§§ 3001.57 through 3001.57c shall be

accompanied by a statement of the

attributable costs by segment and

component for Express Mail service

determined in accordance with the

attributable cost methodology adopted

by the Commission in the most recent

omnibus rate case, for the base year

used in that case, and for each fiscal

year thereafter for which cost data is

available. If the Postal Service believes

that an adjustment to that methodology

is warranted it may also provide costs

using alternative methodologies as long

as a full rationale for the proposed

changes is provided.

(f) Each formal request made under

the provisions of §§ 3001.57 through

3001.57c shall include a description of

all operational changes, occurring since

the most recent omnibus rate case,

having an important impact on the

attributable cost of Express Mail. The

Postal Service shall include an analysis

and estimate of the cost impact of each

such operational change.

(g) Every formal request made under

the provisions of §§ 3001.57 through

3001.57c shall be accompanied by a

statement of the actual Express Mail
12120 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations

revenues of the Postal Service from the

then effective Express Mail rates and

fees for the most recent four quarters for

which information is available.

(h) Each formal request made under

the provisions of §§ 3001.57 through

3001.57c shall be accompanied by a

complete description of the change in

the market for expedited delivery

services to which the Postal Service

proposal is in response, a statement of

when that change took place, the Postal

Service’s analysis of the anticipated

impact of that change on the market,

and a description of characteristics and

needs of customers and market

segments affected by this change which

the proposed Express Mail rates are

designed to satisfy.

(i) Each formal request made under

the provisions of §§ 3001.57 through

3001.57c shall include estimates, on a

quarterly basis, of test period volumes,

revenues, and attributable costs

determined in accordance with the

attributable cost methodology adopted

by the Commission in the most recent

omnibus rate case for each Express Mail

service for which rate changes are

proposed assuming:

(1) rates remain at their existing

levels, and

(2) rates are changed after 90 days to

the levels suggested in the request.

(j)(1) Each formal request made under

the provisions of §§ 3001.57 through

3001.57c shall be accompanied by the

following information, for each quarter

following the base year in the most

recent omnibus rate case:

(i) Estimated volume by rate cell, for

each Express Mail service;

(ii) Total postage pounds of Express

Mail rated at:

(A) up to 1⁄2 pound,

(B) 1⁄2 pound up to 2 pounds,

(C) 2 pounds up to 5 pounds; and

(iii) Total pounds of Express Mail and

of each other subclass of mail carried on

hub contracts.

(2) In each instance when rates

change based on a proceeding under the

provisions of §§ 3001.57 through

3001.57c the Postal Service shall

provide, one year after the conclusion of

the test period, the data described in

§ 3001.57a(j)(1)(i)–(iii), for each of the

four quarters of the test period.

(k) Each formal request made under

the provisions of §§ 3001.57 through

3001.57c shall include analyses to

demonstrate:

(1) that the proposed rates are

consistent with the factors listed in 39

U.S.C. 3622(b),

(2) that the proposed rate changes are

in the public interest and in accordance

with the policies and applicable criteria

of the Act, and

(3) that the proposed rates will

preserve, or minimize erosion of, the

Express Mail contribution to

institutional costs recommended in the

most recent omnibus rate case.

(l) Each formal request made under

the provisions of §§ 3001.57 through

3001.57c shall be accompanied by a

certificate that service of the filing in

accordance with § 3001.57b(c) has been

made.

§ 3001.57b Market Response Rate

Requests—expedition of public notice and

procedural schedule.

(a) The purpose of this section is to

provide a schedule for expediting

proceedings when a trial-type hearing is

required in a proceeding in which the

Postal Service proposes to adjust rates

for Express Mail service in order to

respond to a change in the market for

expedited delivery services.

(b) The Postal Service shall not

propose for consideration under the

provisions of §§ 3001.57 through

3001.57c rates lower than:

(1) the average per piece attributable

cost for Express Mail service determined

in the most recent omnibus rate case, or

(2) the average per piece attributable

cost for Express Mail service as

determined by the Postal Service in

accordance with § 3001.57a(e) for the

most recent fiscal year for which

information is available, whichever is

higher. Neither shall the Postal Service

propose a rate for any rate cell which is

lower than the estimated test period

attributable cost of providing that rate

cell with service.

(c)(1) Persons who are interested in

participating in Express Mail Market

Response Rate Request cases may

register at any time with the Secretary

of the Postal Rate Commission, who

shall maintain a publicly available list

of the names and business addresses of

all such Express Mail Market Response

Registrants. Persons whose names

appear on this list will automatically

become parties to each Express Mail

Market Response rate proceeding. Other

interested persons may intervene

pursuant to § 3001.20 within 28 days of

the filing of a formal request made

under the provisions of §§ 3001.57

through 3001.57c. Parties may withdraw

from the register or a case by filing a

notice with the Commission.

(2) When the Postal Service files a

request under the provisions of

§§ 3001.57 through 3001.57c it shall on

that same day effect service by hand

delivery of the complete filing to each

Express Mail Market Response

Registrant who maintains an address for

service within the Washington

metropolitan area and serve the

complete filing by Express Mail service

on all other Registrants. Each Registrant

is responsible for insuring that his or

her address remains current.

(3) When the Postal Service files a

request under the provisions of

§§ 3001.57 through 3001.57c, it shall on

that same day send by Express Mail

service to all participants in the most

recent omnibus rate case a notice which

briefly describes its proposal. Such

notice shall indicate on its first page

that it is a notice of an Express Mail

Market Response Rate Request to be

considered under §§ 3001.57 through

3001.57c, and identify the last day for

filing a notice of intervention with the

Commission.

(d) In the absence of a compelling

showing of good cause, the Postal

Service and parties shall calculate

Express Mail costs in accordance with

the methodologies used by the

Commission in the most recent omnibus

rate case. In the analysis of customers’

reactions to the change in the market for

expedited delivery services which

prompts the request, the Postal Service

and parties may estimate the demand

for segments of the expedited delivery

market and for types of customers

which were not separately considered

when estimating volumes in the most

recent omnibus rate case.

(e) (1) In the event that a party wishes

to dispute as an issue of fact whether

the Postal Service properly has

calculated Express Mail costs or

volumes (either before or after its

proposed changes), or wishes to dispute

whether the change in the market for

expedited delivery services cited by the

Postal Service has actually occurred, or

wishes to dispute whether the rates

proposed by the Postal Service are a

reasonable response to the change in the

market for expedited delivery services

or are consistent with the policies of the

Postal Reorganization Act, that party

shall file with the Commission a request

for a hearing within 28 days of the date

that the Postal Service files its request.

The request for hearing shall state with

specificity the fact or facts set forth in

the Postal Service’s filing that the party

disputes, and when possible, what the

party believes to be the true fact or facts

and the evidence it intends to provide

in support of its position.

(2) The Commission will not hold

hearings on a request made pursuant to

§§ 3001.57 through 3001.57c unless it

determines that there is a genuine issue

of material fact to be resolved, and that

a hearing is needed to resolve this issue.

(3) Whether or not a hearing is held,

the Commission may request briefs and/

or argument on an expedited schedule,

but in any circumstance it will issue its
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Rules and Regulations 12121

recommended decision as promptly as

is consistent with its statutory

responsibilities.

(4) In order to assist in the rapid

development of an adequate evidentiary

record, all participants may file

appropriate discovery requests on other

participants as soon as an Express Mail

Market Response Rate Request is filed.

Answers to such discovery requests will

be due within 10 days. Objections to

such discovery requests must be made

within 10 days in the form of a Motion

to Excuse from Answering, with service

on the questioning participant made by

hand, facsimile, or expedited delivery.

Responses to Motions to Excuse from

Answering must be submitted within

seven days, and should such a motion

be denied, the answers to the discovery

in question are due within seven days

of the denial thereof. It is the

Commission’s intention that parties

resolve discovery disputes informally

between themselves whenever possible.

The Commission, therefore, encourages

the party receiving discovery requests

considered to be unclear or

objectionable to contact counsel for the

party filing the discovery requests

whenever further explanation is needed,

or a potential discovery dispute might

be resolved by means of such

communication.

(5) If, either on its own motion, or

after having received a request for a

hearing, the Commission concludes that

there exist one or more genuine issues

of material fact and that a hearing is

needed, the Commission shall expedite

the conduct of such record evidentiary

hearings to meet both the need to

respond promptly to changed

circumstances in the market and the

standards of 5 U.S.C. 556 and 557. The

procedural schedule, subject to change

as described in paragraph (e)(6) of this

section, is as follows: Hearings on the

Postal Service case will begin 35 days

after the filing of an Express Mail

Market Response Rate Request; parties

may file evidence either in support of or

in opposition to the Postal Service

proposal 49 days after the filing;

hearings on the parties’ evidence will

begin 56 days after the filing; briefs will

be due 70 days after the filing; and reply

briefs will be due 77 days after the

filing.

(6) The Presiding Officer may adjust

any of the schedule dates prescribed in

(e)(5) of this section in the interests of

fairness, or to assist in the development

of an adequate evidentiary record.

Requests for the opportunity to present

evidence to rebut a submission by a

participant other than the Postal Service

should be filed within three working

days of the receipt of that material into

the evidentiary record, and should

include a description of the evidence to

be offered and the amount of time

needed to prepare and present it.

Requests for additional time will be

reviewed with consideration as to

whether the requesting participant has

exercised due diligence, and whether

the requesting participant has been

unreasonably delayed from fully

understanding the proposal.

§ 3001.57c Express Mail Market

Response—rule for decision.

The Commission will issue a

recommended decision in accordance

with the policies of 39 U.S.C., and

which it determines would be a

reasonable response to the change in the

market for expedited delivery services.

The purpose of §§ 3001.57 through

3001.57c is to allow for consideration of

Express Mail Market Response Rate

Requests within 90 days, consistent

with the procedural due process rights

of interested persons.

Issued by the Commission on February 17,

1995.

Margaret P. Crenshaw,

Secretary.

[FR Doc. 95–5115 Filed 3–3–95; 8:45 am]

BILLING CODE 7710–FW–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CA 95–3–6638a; FRL–5159–9]

Approval and Promulgation of

Implementation Plans; California State

Implementation Plan Revision; San

Joaquin Valley Unified Air Pollution

Control District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final

action on revisions to the California

State Implementation Plan. The

revisions concern a rule from the San

Joaquin Valley Unified Air Pollution

Control District (SJVUAPCD). The

revised rule controls emissions of

volatile organic compounds (VOCs)

from in-situ combustion well vents.

This approval action will incorporate

this rule into the Federally approved

SIP. The intended effect of approving

this rule is to regulate VOC emissions in

accordance with the requirements of the

Clean Air Act, as amended in 1990

(CAA or the Act). In addition, the final

action on this rule serves as a final

determination that the finding of

nonsubmittal for this rule has been

corrected and that on the effective date

of this action, any Federal

Implementation Plan (FIP) clock is

stopped. Thus, EPA is finalizing the

approval of these revisions into the

California SIP under provisions of the

CAA regarding EPA action on SIP

submittals, SIPs for national primary

and secondary ambient air quality

standards and plan requirements for

nonattainment areas.

DATES: This fnal rule is effective on May

5, 1995 unless adverse or critical

comments are received by April 5, 1995.

If the effective date is delayed, a timely

notice will be published in the Federal

Register.

ADDRESSES: Copies of the rule revisions

and EPA’s evaluation report for the rule

are available for public inspection at

EPA’s Region IX office during normal

business hours. Copies of the submitted

rule revisions are available for

inspection at the following locations:

Rulemaking Section (A–5–3), Air and

Toxics Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105.

Environmental Protection Agency, Air

Docket (6102), 401 ‘‘M’’ Street, SW.,

Washington, DC 20460.

California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 ‘‘L’’ Street,

Sacramento, CA 92123–1095.

San Joaquin Valley Unified Air

Pollution Control District, 1999

Tuolumne Street, suite 200, Fresno,

CA 93721.

FOR FURTHER INFORMATION CONTACT: Mae

Wang, Rulemaking Section (A–5–3), Air

and Toxics Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105, Telephone: (415)

744–1200.

SUPPLEMENTARY INFORMATION:

Applicability

The rule being approved into the

California SIP is SJVUAPCD Rule 4407,

In-Situ Combustion Well Vents. This

rule was submitted by the California Air

Resources Board (CARB) to EPA on July

13, 1994.

Background

On March 3, 1978, EPA promulgated

a list of ozone nonattainment areas

under the provisions of the Clean Air

Act, as amended in 1977 (1977 Act or

pre-amended Act), that included the

San Joaquin Valley Area which

encompassed the following eight air

pollution control districts (APCDs):

Fresno County APCD, Kern County