Reorganization of Postal Regulatory Commission Rules, 9614-9660 [2020-01055]
Download as PDF
<![CDATA[
9614
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
POSTAL REGULATORY COMMISSION
39 CFR Chapter III
[Docket No. RM2019–13; Order No. 5407]
Reorganization of Postal Regulatory
Commission Rules
Postal Regulatory Commission.
Final rule.
AGENCY:
ACTION:
The Commission is adopting
final rules that reorganize the order of
appearance of its regulations and revise
multiple sections therein.
DATES: This rule is effective on April 20,
2020.
ADDRESSES: For additional information,
Order No. 5407 can be accessed
electronically through the Commission’s
website at https://www.prc.gov.
FOR FURTHER INFORMATION CONTACT:
David A. Trissell, General Counsel, at
202–789–6820.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
I. Relevant Statutory Requirements
II. Background
III. Basis and Purpose of Final Rules
IV. Implementation of the Final Rules
Final Rules
khammond on DSKJM1Z7X2PROD with RULES2
I. Relevant Statutory Requirements
Section 503 of title 39 of the United
States Code authorizes the Commission
to ‘‘promulgate rules and regulations
and establish procedures, subject to
chapters 5 and 7 of title 5, and take any
other action they deem necessary and
proper to carry out their functions and
obligations to the government of the
United States and the people as
prescribed under this title.’’ 39 U.S.C.
503.
The rules and regulations previously
adopted by the Commission cover a
broad spectrum of subjects and
activities subject to statutory
requirements, including standards of
conduct for Commission employees (39
U.S.C. 503, 504, and Pub. L. 93–579);
access to information in the possession
of the Commission (5 U.S.C. 552; 39
U.S.C. 503, and 504(g)); rules of practice
and procedure (5 U.S.C. 553, 554; 39
U.S.C. 404(d), 404a, 503, 504(f), 3661,
and 3662); and rules applicable to Postal
Service rates, products and services, and
reports (39 U.S.C. 2011, 3622, 3631,
3633, 3644, 3641, 3642, 3651, 3652, and
3682).
II. Background
Shortly after its creation in 1970, the
Commission’s predecessor, the Postal
Rate Commission, adopted rules
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
governing practice before it.1 Since most
proceedings were at that time conducted
as trial-type hearings, referred to as
hearings on the record, most of the rules
of practice addressed practices tailored
to administrative litigation. Only one of
the original rules of practice addressed
procedures in rulemaking proceedings.
39 CFR 3001.41. The rules of practice
were all contained in 39 CFR part 3001.
In the years following adoption of the
original rules of practice, the
Commission added new subparts to 39
CFR part 3001 that either supplemented
the original rules or adopted rules
applicable to additional regulatory
responsibilities.2
In 2006, Congress enacted the Postal
Accountability and Enhancement Act,
Pub. L. 109–435, 120 Stat. 3198 (2006)
(PAEA). The PAEA made significant
changes to the regulatory framework
within which the Commission (renamed
the Postal Regulatory Commission)
exercised oversight of the Postal
Service’s rates and services. The PAEA
also streamlined the process for
approval of price increases by replacing
the requirement for trial-type hearings
on the record with notice and comment
procedures closely analogous to
informal rulemaking proceedings. These
statutory changes required significant
changes to the Commission’s
regulations, including its rules of
practice.
The demands of implementing the farreaching changes mandated by the
PAEA in a timely manner prevented the
Commission from undertaking a more
comprehensive review and update of its
rules. In their current form, the
Commission’s rules and regulations are
not presented in any logical order or
with a grouping of similar materials to
facilitate their application.
III. Basis and Purpose of Final Rules
The proposed amendments to the
rules of practice will codify existing
Commission practice and make changes
needed to make proceedings more
efficient. Implementation of these
changes should also enhance the ability
of participants in Commission
proceedings to participate more
efficiently and effectively. The
reorganization of the Commission’s
remaining regulations will
accommodate changes to the rules of
1 Postal Rate Commission, Rules of Practice and
Procedure, 36 FR 396 (January 12, 1971).
2 E.g., 39 CFR part 3001, subpart F, Rules
Applicable to the Filing of Testimony by
Intervenors, 38 FR 7536 (March 22, 1973); 39 CFR
part 3001, subpart L, Rules Applicable to
Negotiated Service Agreements, 69 FR 7574
(February 18, 2004).
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
practice and will facilitate the location
of relevant regulations.
The Commission’s order organizes
rules and regulations in six subchapters.
Subchapter A to 39 CFR chapter III
provides for the organization of the
Commission and establishes standards
of conduct for Commission employees.
Subchapter B to 39 CFR chapter III
contains rules governing access to
information in the Commission’s
possession. Subchapter C to 39 CFR
chapter III contains generally applicable
rules of practice. Subchapter D to 39
CFR chapter III contains special rules of
practice for specific types of
Commission proceedings. Subchapter E
to 39 CFR chapter III contains
regulations governing Postal Service
products and services. Subchapter F to
39 CFR chapter III contains regulations
governing periodic reports by the Postal
Service, its accounting practices, and its
treatment of taxes.
The generally applicable rules of
practice in subchapter C to 39 CFR
chapter III are grouped in subparts
containing related rules and should
make the rules easier to use by regular
participants in Commission proceedings
and by those who participate less
frequently. Subpart A to 39 CFR part
3010 contains generally applicable
rules, such as rules that establish
definitions, rules that govern the
establishment of dockets, and rules that
establish how time periods are to be
computed. Subpart B to 39 CFR part
3010 addresses filing requirements.
Subpart C to 39 CFR part 3010 governs
participation in Commission
proceedings. Subpart D to 39 CFR part
3010 establishes requirements for
notice, motions, and Commission
information requests. Subpart E to 39
CFR part 3010 establishes procedures
for notice and comment rulemaking
proceedings. Subpart F to 39 CFR part
3010 establishes procedures for on-therecord hearings.
IV. Implementation of the Final Rules
The Commission is delaying the
effective date of these changes until
April 20, 2020. This should facilitate the
transition from the Commission’s
existing rules and regulations to the
reorganized and revised rules by
providing the Postal Service and
interested persons an opportunity to
familiarize themselves with the changes
prior to implementation. It should also
prevent unnecessary confusion in
several major pending proceedings,
such as the annual compliance review
proceeding currently underway in
Docket No. ACR2019, by delaying
implementation of the revised and
reorganized rules until after those
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
proceedings are either concluded or
have gone before the Commission for
decision. Further Commission guidance
regarding implementation of the revised
and reorganized rules will be provided
as necessary in proceedings that are still
in progress as of April 20, 2020.
Final Rules
List of Subjects
39 CFR Part 3000
Conflict of interests.
39 CFR Part 3001
Administrative practice and
procedure, Confidential business
information, Freedom of information,
Sunshine Act.
Administrative practice and
procedure, Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, the Commission amends
chapter III of title 39 of the Code of
Federal Regulations as follows:
■ 1. Under the authority of 39 U.S.C.
503, redesignate the parts in the
‘‘Current part’’ column as the parts in
the ‘‘New part’’ column as shown in the
following table:
Current part
3035
3020
3015
3030
3010
3025
3017
3032
3031
3005
3008
3007
3001
3004
3003
3000
3002
39 CFR Part 3002
Organization and functions
(Government agencies), Seals and
insignia.
39 CFR Part 3003
Privacy.
39 CFR Part 3004
Administrative practice and
procedure, Freedom of information,
Reporting and recordkeeping
requirements.
39 CFR Part 3005
New part
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
..............................................
3045
3040
3035
3022
3030
3021
3025
3024
3023
3013
3012
3011
3010
3006
3005
3001
3000
Subchapter A—The Commission
Administrative practice and
procedure, Confidential business
information, Postal Service, Reporting
and recordkeeping requirements.
2. Designate newly redesignated parts
3000 and 3001 as subchapter A under
the heading set forth above.
■
39 CFR Part 3007
Subchapter B—Seeking Information
From the Commission
Administrative practice and
procedure, Confidential business
information.
3. Designate newly redesignated parts
3005 and 3006 as subchapter B under
the heading set forth above.
■
39 CFR Part 3008
Administrative practice and
procedure, Courts.
Subchapter C—General Rules of
Practice for Proceedings Before the
Commission
39 CFR Parts 3010, 3020, and 3035
Administrative practice and
procedure, Postal Service.
39 CFR Parts 3015, 3025, 3030, and
3031
4. Designate newly redesignated parts
3010 through 3013 as subchapter C
under the heading set forth above.
Administrative practice and
procedure.
Subchapter D—Special Rules of
Practice for Specific Proceeding Types
39 CFR Part 3017
■
■
5. Designate newly redesignated parts
3020 through 3025 as subchapter D
under the heading set forth above.
Administrative practice and
procedure, Postal Service, Treaties.
khammond on DSKJM1Z7X2PROD with RULES2
39 CFR Part 3055 and 3060
39 CFR Part 3032
Administrative practice and
procedure, Postal Service, Trademarks.
39 CFR Part 3050
Administrative practice and
procedure, Postal Service, Reporting
and recordkeeping requirements.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
Subchapter E—Regulations Governing
Market Dominant Products,
Competitive Products, Product Lists,
and Market Tests
6. Designate newly redesignated parts
3030 through 3045 as subchapter E
under the heading set forth above.
■
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
9615
Subchapter F—Periodic Reporting,
Accounting Practices, and Tax Rules
7. Designate parts 3050 through 3099
as subchapter F under the heading set
forth above.
■
PART 3040—PRODUCT LISTS
8. Under the authority of 39 U.S.C.
503, for newly redesignated part 3040,
redesignate §§ 3020.1 through 3020.112
as §§ 3040.101 through 3040.212,
respectively.
■
PART 3035—REGULATION OF RATES
FOR COMPETITIVE PRODUCTS
9. Under the authority of 39 U.S.C.
503, for newly redesignated part 3035,
redesignate §§ 3015.1 through 3015.7 as
§§ 3035.101 through 3035.107,
respectively.
■
PART 3030—REGULATION OF RATES
FOR MARKET DOMINANT PRODUCTS
10. Under the authority of 39 U.S.C.
503, for newly redesignated part 3030,
redesignate §§ 3010.1 through 3010.66
as §§ 3030.501 through 3030.566,
respectively.
■
PART 3025—PROCEDURES RELATED
TO COMMISSION VIEWS
11. Under the authority of 39 U.S.C.
503, for newly redesignated part 3025,
redesignate §§ 3017.1 through 3017.5 as
§§ 3025.101 through 3025.105,
respectively.
■
PART 3005—PRIVACY ACT RULES
12. Under the authority of 39 U.S.C.
503, for newly redesignated part 3005,
redesignate §§ 3003.1 through 3003.7 as
§§ 3005.101 through 3005.107,
respectively.
■
PART 3001—STANDARDS OF
CONDUCT
13. Under the authority of 39 U.S.C.
503, for newly redesignated part 3001,
redesignate §§ 3000.5 through 3000.55
as §§ 3001.105 through 3001.155,
respectively.
■
PART 3000—ORGANIZATION
14. Under the authority of 39 U.S.C.
503, for newly redesignated part 3000,
redesignate §§ 3002.1 through 3002.16
as §§ 3000.101 through 3000.116,
respectively.
■
E:\FR\FM\19FER2.SGM
19FER2
9616
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
16. Revise heading for newly
redesignated part 3000 to read as set
forth above.
■ 17. Amend newly redesignated
§ 3000.102 by revising paragraph (b) to
read as follows:
docket room where documents may be
filed with the Commission pursuant to
part 3010, subpart B of this chapter and
examined by interested persons, a
public reading room where the
Commission’s public records are
available for inspection and copying;
and a hearing room where formal
evidentiary proceedings are held on
matters before the Commission. The
Commission also maintains an
electronic reading room accessible
through the internet, on its website at
https://www.prc.gov.
§ 3000.102
■
PART 3000—THE COMMISSION AND
ITS OFFICES
15. The authority for newly
redesignated part 3000 continues to read
as follows:
■
Authority: 39 U.S.C. 503; 5 U.S.C. 552.
■
Statutory functions.
*
*
*
*
*
(b) Public participation. Interested
persons may participate in proceedings
before the Commission as described in
part 3010, subpart C of this chapter.
Pursuant to 39 U.S.C. 3662(a) and part
3022 of this chapter, any interested
person may lodge rate and service
complaints with the Commission.
Persons served by a post office that the
Postal Service decides to close or
consolidate may appeal such
determinations in accordance with 39
U.S.C. 404(d) and part 3021 of this
chapter.
■ 18. Amend newly redesignated
§ 3000.110 by revising paragraphs (b)
and (c) to read as follows:
§ 3000.110
offices.
The Commission and its
khammond on DSKJM1Z7X2PROD with RULES2
*
18:20 Feb 18, 2020
Jkt 250001
§ 3000.112 Office of Accountability and
Compliance.
*
*
*
*
*
(b) The Office of Accountability and
Compliance provides the analytic
support to the Commission for the
review of rate changes, negotiated
service agreements, classification of
products, the Annual Compliance
Determination, the Annual Report,
changes to postal services, post office
closings and other issues which come
before the Commission. The functional
areas of expertise within this office are:
*
*
*
*
*
20. Amend newly redesignated
§ 3000.115 by revising paragraph (b)(2)
to read as follows:
■
*
*
*
*
(b) The Chairman and Vice Chairman.
The Chairman has the administrative
responsibility for assigning the business
of the Commission to the other
Commissioners and to the offices and
employees of the Commission. The
Chairman has the administrative duty to
preside at the meetings and sessions of
the Commission and to represent the
Commission in matters specified by
statute or executive order or as the
Commission directs. The Commission
shall elect annually a member of the
Commission to serve as Vice Chairman
of the Commission for a term of one year
or until a successor is elected. In case
of a vacancy in the Office of the
Chairman of the Commission, or in the
absence or inability of the Chairman to
serve, the Vice Chairman, unless
otherwise directed by the Chairman,
shall have the administrative
responsibilities and duties of the
Chairman during the period of vacancy,
absence, or inability.
(c) Commission offices. The
Commission’s offices are located at 901
New York Avenue NW, Suite 200,
Washington, DC 20268–0001. On these
premises, the Commission maintains
offices for Commissioners and staff; a
VerDate Sep<11>2014
19. Amend newly redesignated
§ 3000.112 by revising paragraph (b)
introductory text to read as follows:
§ 3000.115 Office of Public Affairs and
Government Relations.
*
*
*
*
*
(b) * * *
(2) Consumer Affairs. As the principal
source of outreach and education to the
public, the Office of Public Affairs and
Government Relations provides
information to postal consumers and
assists in the resolution of rate and
service inquiries from members of the
public pursuant to part 3023 of this
chapter. It supports the impartial
resolution of those inquiries through use
of the Postal Service’s Office of
Consumer Advocate and reports the
results to the Commission. The Office of
Public Affairs and Government
Relations also utilizes procedures
available under the Commission’s rules
and applicable law to assist relevant
stakeholders in appeals of Postal Service
decisions to close or consolidate
individual post offices; maintains a
record of service-related inquiries; and
posts calendar updates and other public
information on the Commission’s
website.
*
*
*
*
*
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
PART 3001—EMPLOYEE STANDARDS
OF CONDUCT
21. The authority for newly
redesignated part 3001 continues to read
as follows:
■
Authority: 39 U.S.C. 503, 504, 3603; E.O.
12674, 54 FR 15159, 3 CFR, 1989 Comp., p.
215, as modified by E.O. 12731, 56 FR 42547,
3 CFR, 1990 Comp., p. 396; 5 CFR parts 2634
and 2635.
22. Revise the heading of newly
redesignated part 3001 to read as set
forth above.
■ 23. Amend newly redesignated
§ 3001.105 by revising paragraph (b) to
read as follows:
■
§ 3001.105
Post-employment restrictions.
*
*
*
*
*
(b) No former employee of the
Commission may within one year after
the individual’s employment has
ceased, practice before or act as an
attorney, expert witness, or
representative in connection with any
proceeding or matter before the
Commission that was under the official
responsibility of such individual, as
defined in 18 U.S.C. 202(b), while in the
service of the Commission.
■ 24. Amend newly redesignated
§ 3001.150 by revising paragraph (b) to
read as follows:
§ 3001.150 Ex parte communications
prohibited.
*
*
*
*
*
(b) Additional ex parte
communications requirements,
applicable to specific docket types, are
described in part 3012 of this chapter.
PART 3005—PRIVACY ACT RULES
25. The authority for newly
redesignated part 3005 continues to read
as follows:
■
Authority: Privacy Act of 1974 (Pub. L.
93–579), 5 U.S.C. 552a.
26. Amend newly redesignated
§ 3005.103 by revising paragraphs (a)(1)
through (3) and (c)(3) and (4) to read as
follows:
■
§ 3005.103 Procedures for requesting
inspection, copying, or correction.
(a) * * *
(1) Wishes to know whether a
Commission system of records contains
a record about the individual,
(2) Seeks access to a Commission
record about the individual that is
maintained in a system of records
(including the accounting of
disclosures), or
(3) Seeks to amend a record about the
individual that is maintained in a
system of records, may file a written
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
request with the chief administrative
officer of the Commission at the
Commission’s current address (901 New
York Avenue NW, Suite 200,
Washington, DC 20268–0001). The
request should state on the outside of
the envelope and in the request that it
is a Privacy Act request.
*
*
*
*
*
(c) * * *
(3) If accompanied by another
individual, must sign a statement, if
requested by the chief administrative
officer, authorizing discussion of the
individual’s record in the presence of
that individual;
(4) Who files a request by mail must
include the individual’s date of birth,
dates of employment at the Commission
(if applicable), and suitable proof of
identity, such as a facsimile of a driver’s
license, employee identification card, or
Medicare card; and
*
*
*
*
*
PART 3006—PUBLIC RECORDS AND
FREEDOM OF INFORMATION ACT
27. The authority for newly
redesignated part 3006 continues to read
as follows:
■
Authority: 5 U.S.C. 552; 39 U.S.C. 503.
28. Amend newly redesignated
§ 3006.1 by revising paragraphs (b) and
(c) to read as follows:
■
§ 3006.1
Purpose.
*
*
*
*
*
(b) Information required to be
published or made available pursuant to
5 U.S.C. 552(a)(1) and (a)(2) may be
found in part 3000 of this chapter, and
on the Commission’s website at https://
www.prc.gov. The Commission’s guide
to FOIA, all required FOIA indexes, and
recent annual FOIA reports are also
available on the website.
(c) Section 3006.10 identifies records
that the Commission has determined to
be public.
■ 29. Amend newly redesignated
§ 3006.2 by revising paragraph (b) to
read as follows:
§ 3006.2
Presumption of openness.
khammond on DSKJM1Z7X2PROD with RULES2
*
*
*
*
*
(b) It is the stated policy of the
Commission that FOIA requests shall be
administered with a clear presumption
of openness. The Commission will only
withhold information if it reasonably
foresees that disclosure would harm an
interest protected by a FOIA exemption,
as enumerated in § 3006.11, or
disclosure is otherwise prohibited by
law.
*
*
*
*
*
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
30. Amend newly redesignated
§ 3006.10 by revising paragraph (a)
introductory text to read as follows:
■
§ 3006.10
Public records.
(a) Except as provided in § 3006.11
and in § 3011.200 of this chapter, the
public records of the Commission
include all submissions and filings as
follows:
*
*
*
*
*
■ 31. Amend newly redesignated
§ 3006.12 by revising paragraph (b) to
read as follows:
§ 3006.12
Reading room.
9617
Service shall be considered under the
applicable standards set forth in that
part.
(e) * * *
(2) A request made pursuant to part
3011 of this chapter for records
designated as non-public by a person
other than the Postal Service shall be
considered under the applicable
standards set forth in that part.
■ 33. Amend newly redesignated
§ 3006.40 by revising paragraph (a)(6) to
read as follows:
§ 3006.40 Hard copy requests for records
and for expedited processing.
*
*
*
*
(b) The records available for public
inspection and printing include, for
example, decisions; reports; opinions;
orders; notices; findings;
determinations; statements of policy;
copies of selected records released
under FOIA; indexes required to be
maintained under FOIA; and records
described in § 3006.10 relating to any
matter or proceeding before the
Commission.
*
*
*
*
*
■ 32. Amend newly redesignated
§ 3006.30 by revising paragraphs (b), (d)
introductory text, (d)(2), and (e)(2) to
read as follows:
(a) * * *
(6) Identify the request category under
§ 3006.51; and
*
*
*
*
*
■ 34. Amend newly redesignated
§ 3006.41 by revising paragraph (a)(4) to
read as follows:
§ 3006.30 Relationship among the
Freedom of Information Act, the Privacy
Act, and the Commission’s procedures for
according appropriate confidentiality.
§ 3006.43
*
*
*
*
*
*
(b) Requesting records subject to the
Privacy Act. A request by an individual
for the individual’s own records
contained in a system of records is
governed by the Privacy Act. Release
will first be considered under the
Privacy Act pursuant to part 3005 of this
chapter. However, if there is any record
that the Commission need not release
under the Privacy Act, the Commission
will also consider the request under
FOIA, and will release the record if
FOIA requires it.
*
*
*
*
*
(d) Requesting a Postal Service record.
The Commission maintains custody of
records that are both Commission and
Postal Service records. In all instances
that the Postal Service submits materials
to the Commission that the Postal
Service reasonably believes to be
exempt from public disclosure, the
Postal Service shall follow the
procedures described in subpart B of
part 3011 of this chapter.
*
*
*
*
*
(2) A request made pursuant to part
3011 of this chapter for records
designated as non-public by the Postal
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
§ 3006.41 Electronic requests for records
and for expedited processing.
(a) * * *
(4) Identify the request category under
§ 3006.51; and
*
*
*
*
*
■ 35. Amend newly redesignated
§ 3006.43 by revising paragraph (f) to
read as follows:
Response to requests.
*
*
*
*
*
(f) Where a compelling need is not
shown in an expedited request as
specified in § 3006.41(b)(1), the
Commission may grant requests for
expedited processing at its discretion.
■ 36. Amend newly redesignated
§ 3006.51 by revising paragraph (b) to
read as follows:
§ 3006.51
Fees—request category.
*
*
*
*
*
(b) Privacy Act. A request by an
individual for the individual’s own
records in a system of records will be
charged fees as provided under the
Commission’s Privacy Act regulations in
part 3005 of this chapter.
■ 37. Amend newly redesignated
§ 3006.52 by revising paragraphs (e)
introductory text and (e)(1) to read as
follows:
§ 3006.52
Fees—general provisions.
*
*
*
*
*
(e) No requester will be charged a fee
after any search or response which
occurs after the applicable time limits as
described in §§ 3006.43 and 3006.44,
unless:
(1) The Commission extends the time
limit for its response due to unusual
circumstances, pursuant to § 3006.45(a),
E:\FR\FM\19FER2.SGM
19FER2
9618
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
and the Commission completes its
response within the extension of time
provided under that section; or
*
*
*
*
*
■ 38. Amend newly redesignated
§ 3006.53 by revising paragraph (b) to
read as follows:
§ 3006.53
Fee schedule.
*
*
*
*
*
(b) In addition to the fee waiver
provisions of § 3006.52(d), fees may be
waived at the discretion of the
Commission.
■ 39. Amend newly redesignated
§ 3006.54 by revising paragraph (a)(2) to
read as follows:
PART 3007—COMMISSION MEETINGS
§ 3006.54 Procedure for assessing and
collecting fees.
(a) * * *
(2) When advance payment is
required, the administrative time limits
prescribed in 5 U.S.C. 552(a)(6)
(§ 3006.43) begin only after such
payment has been received.
*
*
*
*
*
■ 40. Revise newly redesignated
§ 3006.61 to read as follows:
§ 3006.61 Freedom of Information Act
Public Liaison.
The Commission designates the
Director of the Office of Public Affairs
and Government Relations or the
individual’s designee as the FOIA
Public Liaison who shall assist in the
resolution of any dispute between a
requester and the Commission. The
FOIA Public Liaison may be contacted
via email at PRC–PAGR@prc.gov or
telephone at 202–789–6800.
■ 41. Amend newly redesignated
§ 3006.70 by revising paragraphs (a)
through (c) to read as follows:
khammond on DSKJM1Z7X2PROD with RULES2
§ 3006.70 Submission of non-public
materials by a person other than the Postal
Service.
(a) Overlap with treatment of nonpublic materials. Any person who
submits materials to the Commission
(submitter) that the submitter
reasonably believes to be exempt from
public disclosure shall follow the
procedures described in subpart B of
part 3011 of this chapter.
(b) Notice of request. Except as
provided in § 3006.30(d), if a FOIA
request seeks materials designated as
non-public materials, the Commission
will provide the submitter with notice
of the request. The Commission may
also provide notice when it has reason
to believe that materials submitted by a
person other than the Postal Service are
possibly exempt from disclosure and
may fall within the scope of any FOIA
request.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(c) Objections to disclosure. A
submitter may file written objections to
the request specifying all grounds for
withholding the information under
FOIA within seven days of the date of
the notice. If the submitter fails to
respond to the notice, the submitter will
be considered to have no objection,
beyond those objections articulated in
its application for non-public treatment
pursuant to § 3011.201 of this chapter,
to the disclosure of the information.
*
*
*
*
*
■ 42. Add new part 3007, consisting of
§ 3007.100, to subchapter B to read as
follows:
Authority: 39 U.S.C. 404(d); 503; 504;
3661.
§ 3007.100
meetings.
Public access to Commission
(a) Definition. Commission meeting
means the deliberations of at least three
Commissioners where such
deliberations determine or result in the
joint conduct or disposition of official
Commission business.
(b) Open Commission meetings. (1)
Commissioners shall not jointly conduct
or dispose of agency business other than
in accordance with this section. Except
as provided in paragraph (d) of this
section, every portion of every meeting
of the Commission shall be open to
public observation.
(2) Members of the public may not
participate in open meetings. They may
record the proceedings, provided they
use battery-operated recording devices
at their seats. Cameras may be used by
observers to photograph proceedings,
provided it is done from their seats and
no flash or lighting equipment is used.
Persons may electronically record or
photograph a meeting, as long as such
activity does not impede or disturb the
members of the Commission in the
performance of their duties, or members
of the public attempting to observe, or
to record or photograph, the
Commission meeting.
(c) Physical arrangements for open
meetings. The Secretary shall be
responsible for seeing that ample space,
sufficient visibility, and adequate
acoustics are provided for public
observation of the Commission
meetings.
(d) Closed Commission meetings.
Except in a case where the Commission
finds that the public interest requires
otherwise, the second sentence of
paragraph (b)(1) of this section shall not
apply to any portion of a Commission
meeting, and the requirements of
paragraphs (f) and (g) of this section
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
shall not apply to any information
pertaining to such meeting otherwise
required by this section to be disclosed
to the public, where the Commission
properly determines that such portion
or portions of its meetings or the
disclosure of such information is likely
to:
(1) Disclose matters that:
(i) Are specifically authorized under
criteria established by an Executive
order to be kept secret in the interests
of national defense or foreign policy;
and
(ii) Are in fact properly classified
pursuant to such Executive order.
(2) Relate solely to the internal
personnel rules and practices of the
Commission;
(3) Disclose matters specifically
exempted from disclosure by statute
(other than 5 U.S.C. 552), provided that
such statute:
(i) Requires the matter to be withheld
from the public in such a manner as to
leave no discretion on the issue; or
(ii) Establishes particular criteria for
withholding or refers to particular types
of matters to be withheld.
(4) Disclose trade secrets and
commercial or financial information
obtained from a person and privileged
or confidential;
(5) Involve accusing any person of a
crime, or formally censuring any person;
(6) Disclose information of a personal
nature where disclosure would
constitute a clearly unwarranted
invasion of personal privacy;
(7) Disclose investigatory records
compiled for law enforcement purposes,
or information which if written would
be contained in such records, but only
to the extent that the production of such
records or information would:
(i) Interfere with enforcement
proceedings;
(ii) Deprive a person of a right to a fair
trial or an impartial adjudication;
(iii) Constitute an unwarranted
invasion of personal privacy;
(iv) Disclose the identity of a
confidential source and, in the case of
a record compiled by a criminal law
enforcement authority in the course of
a criminal investigation, or by an agency
conducting a lawful national security
intelligence investigation, confidential
information furnished only by the
confidential source;
(v) Disclose investigative techniques
and procedures; or
(vi) Endanger the life or physical
safety of law enforcement personnel.
(8) Disclose information contained in
or related to examination, operating, or
condition reports prepared by, on behalf
of, or for the use of an agency
responsible for the regulation or
supervision of financial institutions;
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
(9) Disclose information the
premature disclosure of which would be
likely to significantly frustrate
implementation of a proposed
Commission action, except that this
paragraph (d)(9) shall not apply in any
instance where the Commission has
already disclosed to the public the
content or nature of its proposed action,
or where the Commission is required by
law to make such disclosure on its own
initiative prior to taking final
Commission action on such proposal; or
(10) Specifically concern the
Commission’s issuance of a subpoena or
the Commission’s participation in a
civil action or appellate proceeding, an
action in a foreign court or international
tribunal, or an arbitration, or the
initiation, conduct or disposition by the
Commission of a particular case of
formal Commission adjudication
pursuant to the procedures in 5 U.S.C.
554 or otherwise involving a
determination on the record after
opportunity for a hearing.
(e) Procedures for closing meetings.
(1) Action under paragraph (d) of this
section shall be taken only when three
Commissioners vote to take such action.
A separate vote of the Commissioners
shall be taken with respect to each
agency meeting a portion or portions of
which are proposed to be closed to the
public pursuant to paragraph (d) of this
section, or with respect to any
information which is proposed to be
withheld under paragraph (d) of this
section. A single vote may be taken with
respect to a series of meetings, a portion
or portions of which are proposed to be
closed to the public, or with respect to
any information concerning such series
of meetings, so long as each meeting in
such series involves the same particular
matters and is scheduled to be held no
more than 30 days after the initial
meeting in such series. The vote of each
Commissioner participating in such vote
shall be recorded and no proxies shall
be allowed.
(2) Whenever any person whose
interests may be directly affected by a
portion of a meeting requests that the
Commission close such portion to the
public for any of the reasons referred to
in paragraph (d)(5), (6), or (7) of this
section, the Commission upon request
of any one of its members, shall vote by
recorded vote whether to close such
meeting.
(3) Within one day of any vote taken
pursuant to paragraph (e)(1) or (2) of
this section, the Commission shall make
publicly available a written copy of
such vote reflecting the vote of each
member on the question. If a portion of
a meeting is to be closed to the public,
the Commission shall, within one day of
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
the vote taken pursuant to paragraph
(e)(1) or (2) of this section, make
publicly available a full written
explanation of its action closing the
portion together with a list of all
persons expected to attend the meeting
and their affiliation.
(4) Any person may protest a
Commission decision to hold a closed
meeting under paragraph (e)(1) or (2) of
this section by filing a motion to open
the meeting. Such motion shall be
addressed to the Commission and shall
set forth with particularity the statutory
or other authority relied upon, the
reasons for which the movant believes
the meeting should not be closed, and
the reasons for which the movant
believes that the public interest requires
the meeting to be open. Such motion
shall be filed with the Secretary no later
than 24 hours prior to the time for
which the closed meeting is scheduled.
(5) The Commission has determined
that a majority of its meetings may be
closed to the public pursuant to
paragraph (d)(4), (8), or (10) of this
section or any combination thereof.
Therefore, pursuant to 5 U.S.C.
552b(d)(4), Commission meetings shall
be closed to the public pursuant to
paragraph (d)(4), (8), or (10) of this
section or any combination thereof
when three Commissioners vote by
recorded vote at the beginning of such
meeting, or portion thereof, to close the
exempt portion or portions of the
meeting, and a copy of such vote,
reflecting the vote of each
Commissioner on the question, is made
available to the public. The provisions
of paragraphs (e)(1) through (3) and (f)
of this section shall not apply to any
portion of a meeting to which paragraph
(e)(5) of this section applies: Provided,
that the Commission shall, except to the
extent that such information is exempt
from disclosure under the provisions of
paragraph (d) of this section, provide
the public with public announcement of
the time, place, and subject matter of the
meeting and of each portion thereof at
the earliest practicable time.
(f) Scheduling and public
announcement. (1) In the case of each
meeting, the Commission shall make
public announcement, at least one week
before the meeting, of the time, place,
and subject matter of the meeting,
whether it is to be open or closed to the
public, and the name and phone
number of the official designated by the
Commission to respond to requests for
information about the meeting. Such
announcement shall be made unless
three Commissioners determine by a
recorded vote that Commission business
requires that such meeting be called at
an earlier date, in which case the
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
9619
Commission shall make public
announcement of the time, place, and
subject matter of such meeting, and
whether open or closed to the public, at
the earliest practicable time.
(2) The time or place of a meeting may
be changed following the public
announcement required by paragraph
(f)(1) of this section only if the
Commission publicly announces such
change at the earliest practicable time.
The subject matter of a meeting, or the
determination of the Commission to
open or close a meeting, or a portion of
a meeting, to the public, may be
changed following the public
announcement required by paragraph
(f)(1) of this section only if:
(i) Three Commissioners determine by
a recorded vote that Commission
business so requires and that no earlier
announcement of the change was
possible; and
(ii) The Commission publicly
announces such change and the vote of
each Commissioner upon such change
at the earliest practicable time.
(3) Immediately following each public
announcement required by this
paragraph (f), notice of the time, place,
and subject matter of a meeting, whether
the meeting is open or closed, any
change in one of the preceding, and the
name and phone number of the official
designated by the Commission to
respond to requests for information
about the meeting, shall also be
submitted for publication in the Federal
Register.
(4) The public announcement
required by this section may consist of
the Secretary:
(i) Publicly posting a copy of the
document in the reception area of the
Postal Regulatory Commission located
at 901 New York Avenue NW, Suite
200, Washington, DC 20268–0001;
(ii) Mailing a copy to all persons
whose names are on a mailing list
maintained for this purpose;
(iii) Operating a recorded telephone
announcement, giving the
announcement; and
(iv) Any other means which the
Secretary believes will serve to further
inform any persons who might be
interested.
(g) Certification of closed meetings;
transcripts, electronic recordings, and
minutes. (1) Before any meeting to be
closed pursuant to paragraphs (d)(1)
through (10) of this section, the General
Counsel of the Commission, or in the
General Counsel’s absence, the senior
advisory staff attorney available, should
publicly certify that, in the individual’s
opinion, the meeting may be closed to
the public and shall state each relevant
exemptive provision. A copy of such
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
9620
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
certification, together with a statement
from the presiding officer of the meeting
setting forth the time and place of the
meeting, and the persons present, shall
be retained by the Commission. The
Commission shall maintain a complete
transcript or electronic recording
adequate to record fully the proceedings
of each meeting, or portion of a meeting,
closed to the public, except that in the
case of a meeting, or portion of a
meeting, closed to the public pursuant
to paragraph (d)(8) or (10) of this
section, the Commission shall maintain
either such a transcript or recording, or
a set of minutes. Such minutes shall
fully and clearly describe all matters
discussed and shall provide a full and
accurate summary of any actions taken,
and the reasons therefor, including a
description of the views expressed on
any item and the record of any rollcall
vote (reflecting the vote of each
Commissioner on the question). All
documents considered in connection
with any action shall be identified in
such minutes.
(2) The Commission shall make
promptly available to the public, in a
place easily accessible to the public, the
transcript, electronic recording, or
minutes (as required by paragraph (g)(1)
of this section) of the discussion of any
item on the agenda, or of any item of the
testimony of any witness received at the
meeting, except for such item or items
of such discussion or testimony as the
Commission determines by a majority
vote of all its members contains
information which may be withheld
under paragraph (d) of this section, and
is not required by the public interest to
be made available. Copies of such
transcript, or minutes, or a transcription
of such recording disclosing the identity
of each speaker, shall be furnished to
any person at the actual cost of
duplication or transcription. The
Commission shall maintain a complete
verbatim copy of the transcript, a
complete copy of the minutes, or a
complete electronic recording of each
meeting, or portion of a meeting, closed
to the public, for a period of at least two
years after such meeting, or until one
year after the conclusion of any
Commission proceeding with respect to
which the meeting or portion was held,
whichever occurs later.
(h) Requests to open or close
Commission meetings. (1)(i) Any person
may request in writing that the
Commission open to public observation
discussion of a matter which it has
earlier decided to close.
(ii) Such requests shall be captioned
‘‘Request to open __ (date) Commission
meeting on item __ (number or
description).’’ The request shall state the
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
reason(s) therefor, the name and address
of the person making the request and, if
desired, a telephone number.
(iii) Ten copies of such requests must
be received by the Office of Secretary
and Administration no later than three
working days after the issuance of the
notice of meeting to which the request
pertains. Requests received after that
time will be returned to the requester
with a statement that the request was
untimely received and that copies of
any nonexempt portions of the
transcript or minutes for the meeting in
question will ordinarily be available in
the Office of Secretary and
Administration ten working days after
the meeting.
(2)(i) Any person whose interests may
be directly affected may request in
writing that the Commission close to
public observation discussion of a
matter which it has earlier decided to
open as provided for in paragraph (e)(2)
of this section.
(ii) Such requests shall be captioned
‘‘Request to Close __ (date) Commission
meeting on item __ (number or
description),’’ shall state the reason(s)
therefor, the name and address of the
person making the request and, if
desired, a telephone number.
(iii) Ten copies of such requests
should be filed with the Office of
Secretary and Administration as soon as
possible after the issuance of the notice
of meeting to which the request
pertains. However, a single copy of the
request will be accepted. Requests to
close meetings must be received by the
Office of Secretary and Administration
no later than the time scheduled for the
meeting to which such a request
pertains.
(3) The Secretary shall retain one
copy of timely requests and forward one
copy to each Commissioner, one copy to
the interested Office, and two copies to
the Docket Section, one for entry in the
appropriate docket file, if any, and one
to be posted on the Public Notice Board
located in that section as an attachment
to the Notice of Meeting to which it
pertains.
(4) Pleadings replying to requests to
open or close shall not be accepted.
(5) Any Commissioner may require
that the Commission vote upon the
request to open or close. If the request
is supported by the votes of a majority
of the agency membership, notice of
change in meeting shall be issued and
the Secretary shall immediately notify
the requester and, before the close of
business the next working day, have
posted such vote and other material
required by paragraphs (e) and (f) of this
section on the Commission’s Public
Notice Board.
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
(6) If no Commissioner requests that
a vote be taken on a request to open or
close a Commission meeting, the
Secretary shall by the close of the next
working day after the meeting to which
such request pertains certify that no
vote was taken. The Secretary shall
forward one copy of that certification to
the requester and two copies of that
certification to the Docket Section, one
to be placed in the appropriate docket
file, if any, and one to be posted on the
Public Notice Board, where it will be
displayed for one week.
■ 43. Revise newly redesignated part
3010 to read as follows:
PART 3010—RULES OF PRACTICE
AND PROCEDURE
Subpart A—General Provisions
Sec.
3010.100 Applicability and scope.
3010.101 Definitions.
3010.102 Commission dockets.
3010.103 Procedural schedules in docketed
proceedings.
3010.104 Consolidation and severance of
proceedings.
3010.105 Consideration of matters before
the Commission.
3010.106 Presiding officers.
3010.107 Appeals from interlocutory
rulings by presiding officers.
3010.108 Computation of time.
3010.109 Automatic closure of inactive
dockets.
Subpart B—Filing Requirements
3010.120 Filing material with the
Commission.
3010.121 Filing Online system.
3010.122 Material filed using method other
than the Filing Online system.
3010.123 Rejected filings.
3010.124 Form and content of text-based
documents filed with the Commission.
3010.125 Library references.
3010.126 Subscription.
3010.127 Service.
Subpart C—Participation in Commission
Proceedings
3010.140 Opportunity for comment.
3010.141 Appeals of Postal Service
determinations to close or consolidate
post offices.
3010.142 Parties to hearings on the record.
3010.143 Representation of persons.
3010.144 Limitation of participation by
investigative or prosecuting officers.
Subpart D—Notices, Motions, and
Information Requests
3010.150 Notices.
3010.151 Notices and orders initiating
proceeding.
3010.152 Notices initiating dockets for
consideration of negotiated service
agreements.
3010.160 Motions.
3010.161 Motions for waiver.
3010.162 Motions for continuances and
extensions of time.
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
3010.163
3010.164
3010.170
Motions for late acceptance.
Motions to strike.
Information requests.
Subpart E—Proceedings Using Notice and
Comment Procedures
3010.200 Applicability.
3010.201 Initiation of a proceeding.
3010.202 Participation in notice and
comment proceedings.
3010.203 Commission action.
Subpart F—Proceedings With an
Opportunity for a Hearing on the Record
3010.300 Applicability.
3010.301 Notice of proceeding.
3010.302 Prehearing conferences.
3010.303 Hearing format.
3010.304 Scheduling order.
3010.310 Discovery—general policy.
3010.311 Interrogatories for purpose of
discovery.
3010.312 Requests for production of
documents or things for purpose of
discovery.
3010.313 Requests for admissions for
purpose of discovery.
3010.320 Settlement conferences.
3010.321 Hearings.
3010.322 Evidence—general.
3010.323 Evidence—introduction and
reliance upon studies and analyses.
3010.324 In camera orders.
3010.325 Depositions.
3010.330 Briefs.
3010.331 Proposed findings and
conclusions.
3010.332 Oral argument before the
presiding officer.
3010.333 Oral argument before the
Commission.
3010.334 Commission decisions.
3010.335 Intermediate decisions.
3010.336 Exceptions to intermediate
decisions.
Authority: 39 U.S.C. 404(d); 503; 504;
3661.
Subpart A—General Provisions
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.100
Applicability and scope.
(a) The rules in this part apply to
practice before the Postal Regulatory
Commission.
(b) When a general rule conflicts with
a rule governing a specific practice area,
the rule governing the specific practice
area shall take precedence.
(c) The rules in this part shall be
liberally construed to secure a just and
speedy determination of issues. They
permit the informal disposition of any
matter for which formal procedures are
not specifically required by statute.
(d) Except when specifically required
by statute, the rules in this part may be
waived for good cause and appropriate
alternative procedures may be
prescribed.
(e) The rules in this part shall be
referred to as the ‘‘rules of practice.’’
Rules are to be cited using only the
numbers and letters to the right of the
decimal point. For example, paragraph
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(a) of ‘‘§ 3010.120 Filing material with
the Commission’’ shall be referred to as
‘‘section 120(a) of the rules of practice
(39 CFR 3–1-.120(a))’’ or as ‘‘rule
120(a)’’ (39 CFR 3010.120(a)).
§ 3010.101
Definitions.
(a) Act means title 39 of the United
States Code, as amended.
(b) Commission or Commissioner
means, respectively, the Postal
Regulatory Commission established by
the Act or a member thereof. The
Commission is located at 901 New York
Avenue NW, Suite 200, Washington, DC
20268–0001. The Commission’s regular
business hours are from 8 a.m. to 4:30
p.m. Eastern Time, except for Saturdays,
Sundays, and Federal holidays.
(c) Complainant means a person who
files a complaint with the Commission
pursuant to section 3662 of the Act in
the form and manner hereinafter
prescribed.
(d) Effective date, when used with
respect to a notice, order, ruling, or
other document issued by the
Commission or an officer thereof
(excluding documents issued for
publication in the Federal Register),
means the date the filing is posted on
the Daily Listing page of the
Commission’s website unless otherwise
specifically provided.
(e) Hearing on the record means a
hearing conducted under sections 556
and 557 of title 5, U.S.C. (80 Stat. 386),
as provided by section 3661 of the Act
or in any other proceeding noticed by
the Commission for a hearing on the
record.
(f) Negotiated service agreement
means a written contract, to be in effect
for a defined period of time, between
the Postal Service and a mailer, which
provides for customer-specific rates or
fees and/or terms of service in
accordance with the terms and
conditions of the contract. A rate
associated with a negotiated service
agreement is not a rate of general
applicability.
(g) Participant means any person who
participates, or seeks to participate, in a
proceeding before the Commission.
(h) Party means the Postal Service, the
Public Representative, a complainant, or
a person who has intervened in a
proceeding docketed for a hearing on
the record before the Commission.
(i) Person means an individual, a
partnership, corporation, limited
liability company, trust, unincorporated
association, public or private
organization, or governmental entity.
(j) Petitioner means a person who is
permitted by section 404(d)(5) of the Act
to appeal to the Commission a
PO 00000
Frm 00009
Fmt 4701
Sfmt 4700
9621
determination of the Postal Service to
close or consolidate a post office.
(k) Postal Service means the United
States Postal Service established by the
Act.
(l) Postal service refers to the delivery
of letters, printed matter, or mailable
packages, including acceptance,
collection, sorting, transportation, or
other functions ancillary thereto.
(m) Presiding officer means a person
designated by the Chairman of the
Commission or the Commission to
preside over a Commission proceeding
or over a hearing held on the record
before the Commission.
(n) Proceeding means a Commission
process initiated by the issuance of a
notice or order that establishes a docket
for the consideration of a matter before
the Commission.
(o) Product means a postal service
with a distinct cost or market
characteristic for which a rate or rates
are, or may reasonably be, applied.
(p) Public Representative or PR means
an officer of the Commission designated
to represent the interests of the general
public in a Commission proceeding.
(q) Rate or class of general
applicability means a rate or class that
is available to all mailers equally on the
same terms and conditions.
(r) Record means all documents and
other material in a docket, including
pleadings, testimony, exhibits, library
references, transcripts of oral testimony
or statements given or made during a
hearing, comments, briefs, and in
camera material, whether or not relied
upon by the Commission or presiding
officer in reaching a decision.
(s) Secretary means the Secretary of
the Commission, the Acting Secretary,
or the Secretary’s designee.
(t) Small business concern means a
for-profit business entity that:
(1) Is independently owned and
operated;
(2) Is not dominant in its field of
operation;
(3) Has a place of business located in
the United States;
(4) Operates primarily within the
United States or makes a significant
contribution to the United States
economy by paying taxes or using
American products, materials, or labor;
and
(5) Together with its affiliates,
qualifies as small in its primary industry
under the criteria and size standards
established by the Small Business
Administration in 13 CFR 121.201 based
on annual receipts or number of
employees.
(u) Website means the Commission’s
website located at https://www.prc.gov.
E:\FR\FM\19FER2.SGM
19FER2
9622
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.102
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Commission dockets.
(a) The Commission may initiate a
proceeding by issuing a notice or order
that establishes a docket in which a
proceeding is to be conducted.
(b) When permitted by statute or
regulation, any person may seek the
initiation of a proceeding by filing a
request with the Commission that
complies with the rules governing the
type of proceeding being requested.
(c) The Secretary shall maintain a
docket for all matters that come before
the Commission.
(d)(1) The Secretary shall assign
docket designations to each matter that
comes before the Commission that
reflect the nature of the matter, set forth
the fiscal year in which the matter came
before the Commission, and where
applicable, the sequential number of the
docket type within the fiscal year.
Available docket types are:
(i) Appeal of a Post Office Closing (A);
(ii) Annual Compliance Report (ACR);
(iii) Complaint (C);
(iv) Competitive Product Rates (CP);
(v) General (G);
(vi) International Mail (IM);
(vii) Mail Classification (MC);
(viii) Market Test (MT);
(ix) Change in the Nature of Postal
Services (N);
(x) Public Inquiry (PI);
(xi) Market Dominant Rates (R);
(xii) Rulemaking (RM);
(xiii) Special Studies (SS); and
(xiv) Annual Review of Tax
Calculation (T).
(2) The Commission may modify the
list of docket types and document
formats without prior notice.
(e) The Secretary’s assignment of a
docket designation does not, by itself,
establish a docket or initiate a
proceeding. A docket is formally
established and proceedings initiated
only by the issuance of a Commission
notice or order except for certain
negotiated service agreements for which
the authority to establish a docket and
initiate a proceeding by issuance of a
Secretary’s notice has been delegated to
the Secretary.
(f) The substance of the matter
presented to the Commission, not the
assigned docket type, shall govern the
procedural requirements for the docket.
(g) Material filed with the
Commission following the Secretary’s
assignment of a docket designation shall
include the assigned docket designation.
(h) Public material filed within a
docket may be viewed at the
Commission’s Docket Section during
regular business hours. Public
documents filed in a docket that appear
in electronic format may also be
accessed remotely via the Commission’s
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
website. Confidential material filed
under seal in a docket may only be
accessed with prior authorization. Part
3011 of this chapter sets forth the
procedures for obtaining such
authorization. Persons who wish to
access confidential material should
contact the Commission’s Docket
Section for the appropriate mode for
transmitting material filed under seal.
(i) Active dockets may only be closed
by the Commission.
§ 3010.103 Procedural schedules in
docketed proceedings.
Procedural schedules shall be
established and may be periodically
modified for each matter that is assigned
a docket designation.
§ 3010.104 Consolidation and severance of
proceedings.
The Commission may order
proceedings involving related issues or
facts to be consolidated for
consideration of any or all matters at
issue in such proceedings. The
Commission may sever proceedings
which have been consolidated or order
separate proceedings on any issue
presented if it appears that separate
proceedings will be more convenient,
expeditious, or otherwise appropriate.
§ 3010.105 Consideration of matters
before the Commission.
(a) Unless it orders otherwise, the
Commission shall sit en banc in all
matters that come before it. In those
proceedings in which a presiding officer
is appointed, the Commission will
continue to sit en banc, unless modified
by Commission notice or order, with the
presiding officer responsible for those
matters within the scope of the
presiding officer’s authority.
(b) A decision to establish a docket
(other than certain negotiated service
agreement dockets), close an active
docket, or reach a final decision in any
docket shall be by majority vote of the
Commissioners then in office.
§ 3010.106
Presiding officers.
(a) Designation of presiding officers.
The Chairman, in consultation with all
other Commissioners then in office, may
designate any Commissioner, including
the Chairman, to act as presiding officer
over any matter before the Commission.
Subject to approval by majority vote of
all Commissioners then in office, the
Chairman may also designate any
member of the Commission’s staff, an
Administrative Law Judge employed by
the Commission for a specific
proceeding, or any person under
contract with the Commission to serve
as presiding officer over any matter
before the Commission. Contracts
PO 00000
Frm 00010
Fmt 4701
Sfmt 4700
between the Commission and any
person who is to serve as a presiding
officer must include provisions that
incorporate the ethical requirements
and standards applicable to Commission
employees who serve as presiding
officers.
(b) Notice of designation. The
Secretary shall issue a notice of any
decision to designate a presiding officer.
The notice shall identify the presiding
officer and the date of appointment.
Any expansion or limitation on the
presiding officer’s authority, or specific
direction to a presiding officer (such as
specific direction to issue an
intermediate decision for the
Commission’s consideration) not
specified in this section shall be
included in the notice.
(c) Authority delegated. Presiding
officers shall have the authority, within
the Commission’s powers and subject to
its published rules to:
(1) Regulate the course of a
proceeding before the Commission,
including ruling on all matters not
specifically reserved for the
Commission, either orally during a
hearing or by issuing written presiding
officer rulings;
(2) Regulate the course of a public
hearing, including the recessing,
reconvening, and adjournment thereof;
(3) Issue presiding officer information
requests;
(4) Administer oaths and affirmations;
(5) Issue subpoenas authorized by law
(limited to Commissioners and
Administrative Law Judges designated
as presiding officers);
(6) Rule upon offers of proof and
receive relevant evidence;
(7) Take or authorize that depositions
be taken as provided in § 3010.324;
(8) Hold appropriate conferences
before or during hearings and to rule on
matters raised at such conferences,
including prehearing conferences held
pursuant to § 3010.302;
(9) Dispose of procedural requests or
similar matters except for motions to
dismiss or to otherwise make a final
determination of a proceeding prior to
the issuance of an intermediate decision
as provided in paragraph (c)(11) of this
section;
(10) Certify, within their discretion, or
upon direction of the Commission, any
question to the Commission for its
consideration and disposition
including, without limitation, motions
to dismiss or to otherwise make a final
determination of a proceeding prior to
the issuance of an intermediate decision
as provided in paragraph (c)(11) of this
section;
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
(11) Submit an intermediate decision
in accordance with § 3010.335, when
directed; and
(12) Take any other action necessary
or appropriate to the discharge of the
duties vested in them, consistent with
the statutory or other authorities under
which the Commission functions and
with the rules, regulations, and policies
of the Commission.
(d) Conduct of hearings. It is the duty
of the presiding officer to conduct fair
and impartial hearings and to maintain
order. Any disregard by participants or
counsel of presiding officer rulings on
matters of order or procedure shall be
noted on the record, and where the
presiding officer deems it necessary
shall be made the subject of a special
written report to the Commission. In the
event that participants or counsel
should be guilty of disrespectful,
disorderly, or contumacious language or
conduct in connection with any hearing,
the presiding officer may immediately
submit to the Commission a report
thereon, together with
recommendations, and in the presiding
officer’s discretion, suspend the hearing.
(e) Disqualification. A presiding
officer may withdraw from a proceeding
when necessary due to disqualification,
or may be removed by the Commission
for good cause.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.107 Appeals from interlocutory
rulings by presiding officers.
(a) General policy. The Commission
will not review interlocutory rulings of
a presiding officer except in
extraordinary circumstances.
(b) Appeals certified by the presiding
officer. (1) Rulings of the presiding
officer may be appealed to the
Commission when the presiding officer
certifies in writing that an interlocutory
appeal is warranted. The presiding
officer shall not certify an appeal unless
the officer finds that:
(i) The ruling involves an important
question of law or policy concerning
which there is substantial ground for
difference of opinion; and
(ii) An immediate appeal from the
ruling will materially advance the
ultimate termination of the proceeding
or subsequent review will be an
inadequate remedy.
(2) A request for the presiding officer
to certify an appeal shall be made by
motion within five days after the
presiding officer’s ruling has been
issued. The request shall set forth with
specificity the reasons that a participant
believes that an appeal meets the
criteria of paragraphs (b)(1)(i) and (ii) of
this section. Such requests shall also
state in detail the legal, policy, and
factual arguments supporting the
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
participant’s position that the ruling
should be modified. If the appeal is
from a ruling rejecting or excluding
evidence, such request shall include a
statement of the substance of the
evidence which the participant
contends would be adduced by the
excluded evidence and the conclusions
intended to be derived therefrom.
(3) The presiding officer may request
responsive pleadings from other
participants prior to ruling upon the
request to certify an appeal to the
Commission.
(c) Appeals not certified by the
presiding officer. A participant may
request Commission review of a
presiding officer’s decision denying
certification of an appeal by motion
within five days of the decision. If the
presiding officer fails to act on a request
for certification within 15 days of the
issuance of the ruling in question, the
participant seeking certification may
apply for review by the Commission
within 20 days of the ruling in question.
Unless the Commission directs
otherwise, its review of the application
for review will be based on the record
and pleadings filed before the presiding
officer pursuant to paragraph (b) of this
section.
(d) Action by the Commission. (1) The
Commission may dismiss an appeal
certified by the presiding officer if it
determines that:
(i) The objection to the ruling should
be deferred until the Commission’s
consideration of the entire proceeding;
or
(ii) Interlocutory review is otherwise
not warranted or appropriate under the
circumstances.
(2) When the presiding officer
declines to certify an appeal, the
Commission will not permit an
interlocutory appeal unless it
determines:
(i) That the presiding officer should
have certified the matter;
(ii) That extraordinary circumstances
exist; and
(iii) That prompt Commission
decision is necessary to prevent grave
detriment to the public interest.
(3) If the Commission fails to issue an
order permitting an interlocutory appeal
within 15 days after the presiding
officer certifies the appeal or a
participant files an application for
review, the appeal shall be deemed
denied. If the Commission issues an
order permitting an appeal, it may rule
upon the merits of the appeal in that
order or at a later time.
(e) Effect of appeals. Unless the
presiding officer or the Commission so
orders, the certification of an appeal or
the filing of an application for review
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
9623
shall not stay the proceeding or the
effectiveness of any ruling.
(f) Review at conclusion of
proceeding. If the Commission does not
entertain an interlocutory appeal of a
presiding officer’s ruling, objection to
the ruling may be raised:
(1) In briefs to the presiding officer or
the Commission at the conclusion of
hearings on the record; or
(2) By the deadline for submission of
comments or reply comments,
whichever is later, in all other
proceedings in which a hearing on the
record is not held.
§ 3010.108
Computation of time.
(a) In computing time periods, the
term ‘‘day’’ shall mean calendar day.
(b) Except as otherwise provided by
law, in computing any period of time
prescribed or allowed by this part, or by
any notice, order, rule, presiding officer
ruling, or regulation of the Commission
or a presiding officer, the day of the act,
event, or default after which a
designated period of time begins to run
is not to be included.
(c) The last day of the period so
computed is to be included unless it is
a Saturday, Sunday, Federal holiday, or
a day on which the Commission is not
continuously open from 8 a.m. to 4:30
p.m. or on which the Commission’s
docketing system is not accessible
continuously during that time. In any
such case, the applicable time period
shall run until the end of the next full
business day that the Commission is
open and its docketing system is
accessible.
(d) Except in proceedings to consider
changes in the nature of postal services
conducted under part 3020 of this
chapter, in computing a period of time
which is five days or less, all Saturdays,
Sundays, Federal holidays, or days on
which the Commission is not
continuously open from 8 a.m. to 4:30
p.m. or on which the Commission’s
docketing system is not accessible
continuously during that time are to be
excluded.
§ 3010.109
dockets.
Automatic closure of inactive
(a) Automatic closure. The
Commission shall automatically close a
docket in which there has been no
activity of record by any person for 12
consecutive months, except dockets in
which further action by the Commission
is required by statute or regulation, or
dockets for which the Commission finds
good cause to remain open.
(b) Notice of closure. Each month, the
Commission shall post on its website a
list of dockets that will be subject to
automatic closure during the following
E:\FR\FM\19FER2.SGM
19FER2
9624
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
calendar month and will include the
date on which the docket will
automatically close.
(c) Motions to stay automatic closure.
(1) Persons, including the Postal Service
or a Public Representative, may file a
motion to stay automatic closure of a
docket and request that the docket
remain open for a specified term not to
exceed 12 months. Motions to stay
automatic closure must be filed at least
15 days prior to the automatic closure
date.
(2) The Commission may order a
docket remain open for a specified term
not to exceed 12 months and must file
such order at least 15 days prior to the
automatic closure date.
(d) Motions to reopen automatically
closed dockets. (1) If, at any time after
a docket has been automatically closed,
persons, including the Postal Service or
a Public Representative, may file a
motion to reopen the docket and must
set forth with particularity good cause
for reopening the docket.
(2) The Commission may order a
closed docket to be reopened, and must
set forth the basis for reopening the
docket.
Subpart B—Filing Requirements
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.120 Filing material with the
Commission.
(a) All material filed with the
Commission shall be transmitted to the
Commission in electronic format using
the Filing Online system available over
the internet through the Commission’s
website at https://www.prc.gov. The
material must satisfy the Filing Online
system compatibility requirements
specified by the Secretary in the Filing
Online User Guide, which shall also be
accessible on the Commission’s website.
The exceptions to this rule are:
(1) Material that cannot reasonably be
converted to electronic format;
(2) Confidential material filed under
seal pursuant to part 3011 of this
chapter shall not be transmitted
electronically using the Filing Online
system or any other electronic filing
system unless authorized in advance by
the Secretary;
(3) Hardcopy material filed by persons
who do not have the ability to submit
material using the Filing Online system
and who files not more than ten pages
of material with the Commission in any
one calendar year;
(4) Hardcopy material filed by persons
participating in proceedings that
consider the appeal of a Postal Service
determination to close or consolidate a
post office, other than the Postal
Service, that do not have the ability to
submit material using the internet; and
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(5) Hardcopy material filed in
docketed proceedings with the approval
of the Secretary for good cause shown.
(b) Material subject to the exceptions
specified in paragraph (a) of this section
may be filed either by mailing or by
hand delivery during regular business
hours to the Office of Secretary and
Administration, Postal Regulatory
Commission, 901 New York Avenue
NW, Suite 200, Washington, DC 20268–
0001. The Secretary has authority to
approve the use of secure alternative
electronic filing systems pursuant to
§ 3011.203(c)(2) of this chapter for
confidential material filed under seal.
The Secretary also has authority to
approve the use of alternative electronic
filing systems for non-confidential
material on a case-by-case basis when
necessary to facilitate efficient
docketing operations.
§ 3010.121
Filing Online system.
(a) Only registered users of the Filing
Online system may file material using
the Filing Online system. Both
temporary and permanent account
registrations are available. Information
for establishing a Filing Online account
may be obtained on the Commission’s
website at https://www.prc.gov.
(b) A temporary account allows a user
to file materials immediately, but
expires after 35 days. The purpose of a
temporary account is to permit persons
to file comments solicited by the
Commission on a one-time or infrequent
basis, or to file notices of intervention
where there is limited time in which to
establish a permanent account. A
temporary account also may be used on
an extraordinary basis for good cause
shown.
(c) A permanent account requires the
authorization of the Secretary prior to
use, but remains active until cancelled.
Registration can be in the form of a
principal account holder or as an agent
of the principal account holder. When a
principal account holder is representing
the interests of another person, the
authority of the principal account
holder to represent the person on whose
behalf the document is filed must be
valid and current, in conformance with
§ 3010.143. The authority of an agent
account holder to submit documents for
a principal account holder must be valid
and current. A principal account holder
must promptly inform the Secretary of
any change in the principal account
holder’s authority to represent
participants in a proceeding or any
change in the authority delegated to an
agent account holder to submit
documents on the principal account
holder’s behalf.
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
(d) Only such material that conforms
to the requirements of this part and any
other applicable Commission rule or
order shall be accepted for filing. In
order for material to be accepted using
the Filing Online system, it must be
submitted to the Commission by a
temporary or permanent account holder.
Material submitted through the Filing
Online system is considered to have
been filed on the date indicated on the
receipt issued by the Secretary. A filing
is accepted when the Secretary, after
review, posts the filing on the Daily
Listing page of the Commission’s
website. Material received after the
close of regular business hours or on a
Saturday, Sunday, Federal holiday or
other day on which the Commission is
closed shall be deemed to be filed on
the next regular business day.
§ 3010.122 Material filed using method
other than the Filing Online system.
(a) Hardcopy and other forms of
material. A hardcopy document is filed
on the date stamped by the Secretary. It
is accepted when the Secretary, after
review, posts the document on the Daily
Listing page of the Commission’s
website. Any other form of material
filed with the Commission must be
accompanied by a hardcopy notice of
filing, which describes the material
being filed, identifies the person filing
the material, and specifies the docket
caption and docket number under
which the material is being filed. This
material is accepted when the Secretary,
after review, posts the notice of filing on
the Daily Listing page of the
Commission’s website. Material
received after the close of regular
business hours or on a Saturday,
Sunday, or Federal holiday shall be
deemed to be filed on the next regular
business day.
(b) Computer media. With the prior
approval of the Secretary, a participant
may submit a document on a compact
disk or other media or method approved
in advance by the Secretary,
simultaneously with the filing of one
printed original hardcopy, provided that
the stored document is a file generated
in either Acrobat (pdf), Word,
WordPerfect, or Rich Text Format (rtf).
§ 3010.123
Rejected filings.
Any filing that does not comply with
an applicable Commission rule or order
may be rejected. Any filing that is
rejected is deemed not to have been
filed with the Commission. If a filing is
rejected, the Secretary will attempt to
notify the person submitting the filing,
indicating the reason(s) for rejection.
Acceptance for filing shall not waive
any failure to comply with this part, and
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
such failure may be cause for
subsequently striking all or any part of
any document. Any controversies
concerning the acceptability of a filing
shall be resolved after review by the
Office of General Counsel.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.124 Form and content of text-based
documents filed with the Commission.
(a) Equivalent paper size. Each
document filed in paper form shall be
produced on letter-size paper, 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 that 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. For a multiple page document,
the preference is for the document to be
not stapled, hole-punched, or bound,
but may be fastened together by paper
or binder clip, or equivalent. If the
document is bound, it shall be bound on
the left side. Each document filed in
electronic form must be capable of
meeting the above requirements whenprinted from a text-based pdf formatted
file version of the document.
Consideration may be given to
alternative file formats where necessary.
(b) Line spacing and font. The text of
documents filed with the Commission
shall be formatted in not less than one
and one-half spaced lines except that
tables of content, captions, tables,
footnotes and quotations may be singlespaced. Documents shall be submitted
in a san-serif font such as Arial (or
substantially equivalent). Body text
shall be 12 point, except that footnotes
and quotations may appear as small as
10 point. Where necessary, special text
such as in tables or charts, may appear
as small as 9 point. These requirements
may be waived on a case-by-case basis,
based on both substantial compliance
and the readability of the document.
(c) Caption, title, page numbering,
and table of contents. The caption of
each document filed with the
Commission in any proceeding shall
clearly show the docket designation and
title of the proceeding before the
Commission. The title of such document
shall identify each participant on whose
behalf the filing is made and include a
brief description of the document or the
nature of the relief sought therein (e.g.,
motion for extension, brief on
exceptions, complaint, notice of
intervention, answer to complaint).
Each page, after the first page, of a
document shall be consecutively
numbered. Unique page numbers are
permissible for introductory material
such as cover pages and table of
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
contents, and for appendixes. Each
document filed with the Commission
consisting of 20 or more pages shall
include a table of contents with page
references. For briefs also see
§ 3010.330.
(d) Improper matter. Defamatory,
scurrilous, or unethical matter shall not
be included in any document filed with
the Commission.
(e) Exception for appeals of post office
closings and consolidations. The
requirements of paragraphs (a) through
(c) of this section are encouraged, but
optional, for participants other than the
Postal Service in proceedings to
consider the appeal of a Postal Service
determination to close or consolidate a
post office conducted pursuant to part
3021 of this chapter.
§ 3010.125
Library references.
(a) In general. A library reference is a
special type of filing, which is accepted
by the Commission for the convenience
of the person filing material that is not
conducive to typical text based filings.
The filing of a document as a library
reference is appropriate when interest in
the material is limited, when the
material constitutes a secondary source
that provides background or support for
a position or matter, or when references
to, or identification of, the material filed
as a library reference would be
facilitated. Examples of materials that
are appropriate for filing as library
references include electronic
spreadsheets, workpapers in support of
primary documents, pre-existing
materials, secondary sources such as
books or materials that are not readily
available elsewhere, or other
foundational materials filed in support
of a primary document. Whenever
possible, library references are to be
filed in electronic format. The
Commission reserves the right to refuse
acceptance of any library reference
material in its docket room and its right
to take other action to ensure all
persons’ ability to obtain access to the
material.
(b) Categorization of library
references. To the extent possible,
material filed as a library reference shall
be identified and referred to by
participants in terms of the following
categories:
(1) Category 1—Reporting Systems
Material (consisting of library references
relating to the Postal Service’s statistical
cost and revenue reporting systems, and
their primary outputs);
(2) Category 2—Witness Foundational
Material (consisting of material relating
to the testimony of specific witnesses,
primarily that which is essential to the
establishment of a proper foundation for
PO 00000
Frm 00013
Fmt 4701
Sfmt 4700
9625
receiving into evidence the results of
studies and analyses);
(3) Category 3—Reference Material
(consisting of previously published
material provided for the convenience
of the reader, such as books, chapters or
other portions of books, articles, reports,
manuals, handbooks, guides, and
contracts);
(4) Category 4—Material Provided in
Response to Discovery (consisting of
material provided in response to
discovery requests);
(5) Category 5—Disassociated Material
(consisting of material filed at the
request of another, from which the filing
party wishes to be disassociated, is not
vouching for or sponsoring the material
provided);
(6) Category 6—All Other Material
(consisting of library references not
fitting any of the other categories).
(c) Labeling. Material filed as a library
reference shall be labeled in a manner
consistent with standard Commission
notation and any other conditions the
Commission or presiding officer
establishes. Each library reference shall
be identified by a unique identification
number. The standard format for an
identification number shall be
‘‘[abbreviated name of person filing]-LR[docket identification]-[optional:
NP][sequential number by person
filing].’’ For example, ‘‘PRC–LR–
CP2010–1–NP8’’ read right to left would
be the eighth (8) non-public (NP) item
filed in Docket No. (CP2010–1) as a
library reference (LR) by the Postal
Regulatory Commission (PRC).
Alternative formats may be used when
required for clear identification of the
material being filed.
(d) Filing procedure. Participants
filing material as a library reference
shall file contemporaneous written
notice of this action. The notice shall:
(1) Set forth the reason(s) why the
material is being designated as a library
reference;
(2) Identify the category into which
the material falls and describe in detail
what the material consists of or
represents, noting matters such as the
presence of survey results;
(3) Explain in detail how the material
relates to the participant’s case or to
issues in the proceeding;
(4) Identify authors or others
materially contributing to substantive
aspects of the preparation or
development of the library reference;
(5) Identify the documents (such as
testimony, exhibits, and an
interrogatory) or request to which the
library reference relates, to the extent
practicable;
(6) Identify other library references or
testimony relied upon or referred to in
E:\FR\FM\19FER2.SGM
19FER2
9626
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
the designated material, to the extent
practicable;
(7) Indicate whether the library
reference is an update or revision to
another library reference and, if it is,
clearly identify the predecessor
material; and
(8) To the extent feasible, for
proceedings scheduled for a hearing on
the record, identify portions expected to
be entered into the record and the
expected sponsor (if the participant
filing a library reference anticipates
seeking, on its own behalf, to enter all
or part of the material contained therein
into the evidentiary record). To the
extent feasible, in all other proceeding
types, identify portions relevant to the
proceeding.
(e) Optional preface or summary.
Inclusion of a preface or summary in a
library reference addressing the matters
set out in paragraphs (d)(1) through (8)
of this section is encouraged, but
optional.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.126
Subscription.
(a) Each document filed with the
Commission shall be subscribed.
Subscription constitutes a certification
that the person filing the document has
read the document being filed; that the
person filing the document knows the
contents thereof; that if executed in any
representative capacity, the document
has been subscribed in the capacity
specified in the document with full
power and authority so to do; that to the
best of the person’s knowledge,
information and belief every statement
contained in the document is true and
no such statements are misleading; and
that such document is not filed for
purposes of delay. This requirement
extends to notices of filing for library
references or other material, including
the underlying library references or
other material to the extent referenced
in the notice of filing.
(b) For a document or notice of filing
filed via the Filing Online system, the
subscription requirement is met when
the document or notice of filing is filed
with the Commission.
(c) For a hardcopy document or
hardcopy notice of filing, the
subscription requirement is met by
signing in ink, by affixing an electronic
signature, or by including the typed
name of the individual, authorized
office, employee, attorney, or other
representative who files the document
or notice.
§ 3010.127
Service.
(a) Material filed by a person
participating in a docket shall be
deemed served on all other persons
(except those served by the Secretary
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
pursuant to paragraph (b) of this
section) who are participating in the
docket as of the date the material, or
notice of the material’s filing is posted
by the Secretary on the Commission’s
website.
(b) The Secretary shall provide service
by First-Class Mail, which is deemed
complete upon mailing, to the following
persons upon a demonstration of the
inability to effectively utilize the Filing
Online system (until alternative
arrangements are established):
(1) Petitioners in dockets appealing
Postal Service determinations to close or
consolidate post offices conducted
pursuant to part 3021 of this chapter;
(2) Parties that have intervened in
proceedings docketed for a hearing on
the record; and
(3) Where necessary for fairness and
protection of due process, an active
participant in a proceeding affecting the
substantial rights of that participant.
(c) The Secretary shall maintain a
current service list in each proceeding
docketed for a hearing on the record
which shall include the parties that
have intervened in that proceeding and
up to two individuals designated for
physical service of documents, if
necessary, by each party. The service
list for each current proceeding will be
available on the Commission’s website
at https://www.prc.gov. Each party who
has internet access shall be responsible
for ensuring that its listing on the
Commission’s website is accurate and
should promptly notify the Secretary of
any errors. The Secretary or the
Secretary’s designee shall be responsible
for ensuring the accuracy of listings of
any parties who lack internet access.
Subpart C—Participation in
Commission Proceedings
§ 3010.140
Opportunity for comment.
Except for proceedings involving an
appeal of a Postal Service determination
to close or consolidate a post office, any
person may submit comments in
proceedings before the Commission. An
opportunity to provide a reply to
comments shall be at the discretion of
the Commission, or the presiding officer
if one is appointed. The scope and
timing of comments and reply
comments may be specified by notice,
order, or presiding officer’s ruling.
There is no requirement to intervene in
a proceeding as a party in order to
submit comments.
§ 3010.141 Appeals of Postal Service
determinations to close or consolidate post
offices.
(a) Only a person served by the post
office in which the Postal Service has
PO 00000
Frm 00014
Fmt 4701
Sfmt 4700
issued a decision to close or consolidate
a post office may file an appeal of the
decision with the Commission.
(b) Any other person served by the
same post office under review who
desires to participate in the proceeding,
or any Postmaster, counsel, agent, or
other person authorized or recognized
by the Postal Service as such person’s
representative, may participate in an
appeal by submitting comments.
(c) Except for persons identified in
paragraph (a) or (b) of this section, the
designated Public Representative, and
the Postal Service, no other person may
participate in a proceeding to consider
the appeal of a Postal Service
determination to close or consolidate a
post office.
(d) Opposition to a person asserting
eligibility for participation shall be
made within three days of that person’s
first filing in the proceeding.
§ 3010.142
record.
Parties to hearings on the
(a) Parties to a proceeding. Any
interested person may become a party to
proceedings docketed for a hearing on
the record by filing a notice of
intervention. The Postal Service, and
the Public Representative are
automatically deemed parties in such
proceedings without the need to file a
notice of intervention. Persons who file
a complaint are also automatically
deemed a party to a complaint
proceeding without the need to file a
notice of intervention. Parties may be
provided an opportunity to participate
in discovery, file testimony, participate
in the written or oral examination of
witnesses, file briefs, or present oral
argument before the Commission or the
presiding officer. Persons that have not
intervened may participate in a
proceeding docketed for a hearing on
the record, but such participation shall
be limited to providing comments
pursuant to § 3010.140 unless otherwise
directed.
(b) Notices of intervention. A notice of
intervention shall clearly and concisely
set forth the nature and extent of the
intervenor’s interest in the issues to be
decided, including the postal services
utilized by the intervenor giving rise to
the intervenor’s interest in the
proceeding, and to the extent known,
the position of the intervenor with
regard to the proposed changes in postal
rates, fees, classifications, or services, or
the subject matter of the complaint, as
described in the notice of the
proceeding. Such notice shall state
whether or not the intervenor requests
a hearing or in lieu thereof, a
conference, and whether or not the
intervenor intends to actively
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
participate in a hearing. Such notice
shall also include on page one thereof
the name and full mailing address of no
more than two persons who are to
receive service, when necessary, of any
documents relating to such proceeding.
(c) Form and time of filing. Notices of
intervention shall be filed no later than
the date fixed for such filing by the
Commission or its Secretary, unless for
good cause shown, the Commission
authorizes a late filing. Without a
showing for good cause, late intervenors
shall be subject to and may not
challenge decisions by the Commission
or presiding officer made prior to
acceptance of the request for late
intervention.
(d) Oppositions. (1) Except as
otherwise provided in paragraph (d)(2)
of this section, oppositions to notices of
intervention may be filed by any party
in the proceeding no later than ten days
after the notice of intervention is filed.
(2) Oppositions to notices of
interventions in proceedings
considering the change in the nature of
a postal service pursuant to part 3020 of
this chapter may be filed by any party
in the proceeding no later than three
days after the notice of intervention is
filed.
(3) Pending Commission action, an
opposition to intervention shall, in all
proceedings except those considering
the change in the nature of a postal
service pursuant to part 3020 of this
chapter, delay on a day-for-day basis the
date for responses to discovery requests
filed by that intervenor.
(e) Effect of intervention. A person
filing a notice of intervention shall be a
party to the proceeding subject,
however, to a determination by the
Commission, either in response to an
opposition, or sua sponte, that party
status is not appropriate under the Act.
Intervenors are also subject to the right
of the Commission or the presiding
officer as specified in § 3010.104 to
require two or more intervenors having
substantially like interests and positions
to join together for purposes of service
of documents, presenting evidence,
making and arguing motions and
objections, propounding discovery,
cross-examining witnesses, filing briefs,
and presenting oral arguments to the
Commission or presiding officer. No
intervention shall be deemed to
constitute a decision by the Commission
that the intervenor is aggrieved for
purposes of perfecting an appeal of any
final order of the Commission.
§ 3010.143
Representation of persons.
(a) By whom. An individual may
participate on the individual’s own
behalf; a member of a partnership may
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
represent the partnership; and an officer
may represent a corporation, limited
liability company, trust, unincorporated
association, or governmental entity. A
person may be represented in a
proceeding by an attorney at law
admitted to practice and in good
standing before the Supreme Court of
the United States, the highest court of
any State or Territory of the United
States or the District of Columbia, or the
Court of Appeals or the District Court
for the District of Columbia.
(b) Authority to act. When an officer
or an attorney acting in a representative
capacity appears in person, submits a
document to the Commission using the
Filing Online system as a principal
account holder, or signs a paper filed
with the Commission, the personal
appearance, online submission, or
signature, shall constitute a
representation to the Commission that
that individual is authorized to
represent the particular person on
whose behalf the individual acts. Any
individual appearing before or
transacting business with the
Commission in a representative capacity
may be required by the Commission or
the presiding officer to file evidence of
the individual’s authority to act in such
capacity.
(c) Notice of appearance and
withdrawal of appearance. An
individual intending to appear before
the Commission or its presiding officer
in a representative capacity in a
proceeding before the Commission shall
file with the Commission a notice of
appearance in the form prescribed by
the Secretary unless that individual is
named in an initial filing of the person
whom the individual represents as the
individual to whom communications
from the Commission in regard to the
filing are to be addressed. An individual
whose authority to represent a person in
a specific Commission proceeding has
been terminated shall file a timely
notice of withdrawal of appearance with
the Commission.
(d) Standards of conduct. Individuals
practicing before the Commission shall
conform to the standards of ethical
conduct required of practitioners by the
District of Columbia Rules of
Professional Conduct.
(e) Disqualification and suspension.
After hearing, the Commission may
disqualify and deny, temporarily or
permanently, the privilege of appearing
and practicing before it in any way to
any individual who is found not to
possess the requisite qualifications, or to
have engaged in unethical or improper
professional conduct. Contumacious
conduct at any hearing before the
Commission or its presiding officer shall
PO 00000
Frm 00015
Fmt 4701
Sfmt 4700
9627
be grounds for exclusion of any
individual from such hearing and for
summary suspension for the duration of
the hearing by the Commission or the
presiding officer.
§ 3010.144 Limitation of participation by
investigative or prosecuting officers.
No officer, employee, or agent of the
Commission who participates in a
proceeding before the Commission as an
attorney or witness or who actively
participates in the preparation of
evidence or argument presented by such
persons, shall participate or advise as to
the intermediate decision or
Commission decision in that
proceeding.
Subpart D—Notices, Motions, and
Information Requests
§ 3010.150
Notices.
(a) Purpose. A notice is a document
that announces a past, present, or
future, event or occurrence. A notice
shall not be combined with a request for
any order or ruling that otherwise
should be presented by motion. The
Commission or presiding officer shall
not combine a notice with a
Commission order or a presiding
officer’s ruling, unless the title of the
document clearly states the intent of
document being issued.
(b) Filing requirements. The title of
any document filed as a notice shall
contain the word ‘‘notice.’’ Additional
requirements for the content of specific
forms of notices are provided
throughout chapter III of this title,
where appropriate.
§ 3010.151 Notices and orders initiating
proceeding.
(a) Upon a finding that a matter is
properly before the Commission, the
Commission shall issue a notice and
order initiating the proceeding to
consider that matter. The rules in this
section apply to all proceedings except
for:
(1) Proceedings to consider certain
negotiated service agreements, which
are noticed pursuant to § 3010.152; and
(2) Proceedings to consider the appeal
of a Postal Service determination to
close or consolidate post office,
pursuant to part 3021 of this chapter.
(b) The notice and order shall:
(1) Describe the general nature of the
proceeding, i.e., a complaint, a
rulemaking, a change in rates, a change
in the product lists, a change in the
nature of postal services, etc.;
(2) Identify the person(s) requesting
the initiation of the docket, if
applicable;
E:\FR\FM\19FER2.SGM
19FER2
9628
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
(3) Refer to the legal authority under
which the proceeding is to be
conducted;
(4) Provide a sufficient description of
the matter being considered such that
the reader is informed of the substance
of the proceeding, and provide direction
as to where further information may be
obtained;
(5) Establish the docket under which
the proceeding will be conducted;
(6) Assign a Public Representative to
represent the interests of the public,
when required;
(7) Describe how interested persons
may participate in the proceeding;
(8) Establish procedural deadlines, if
known; and
(9) Include such other information as
the Commission deems appropriate.
(c) For proceedings docketed for a
hearing on the record pursuant to
subpart F of this part, the notice and
order shall also:
(1) Specify the date by which notices
of intervention and requests for hearing
must be filed;
(2) Specify the date, time, and place
of a prehearing conference or first
public hearing, if known; and
(3) Include the procedural schedule
provided for under § 3020.110 of this
chapter in proceedings to consider
changes in the nature of postal services
pursuant to part 3020 of this chapter.
(d) The document shall be published
in the Federal Register.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.152 Notices initiating dockets for
consideration of negotiated service
agreements.
(a) The Secretary shall issue a notice
to initiate a docket for each Postal
Service request which proposes the
addition or removal of a negotiated
service agreement from the market
dominant or the competitive product
list, or the modification of an existing
product currently appearing on the
market dominant or the competitive
product list. Multiple requests may be
combined into a single notice.
(b) The document shall specify:
(1) The docket number associated
with each Postal Service request;
(2) The title of each Postal Service
request;
(3) The request’s acceptance date;
(4) The legal authority cited by the
Postal Service for each request;
(5) The appointment of an officer of
the Commission to represent the
interests of the general public in the
proceeding; and
(6) The comment deadline pertaining
to each request.
(c) The document shall be published
in the Federal Register.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
§ 3010.160
Motions.
(a) Motions. A motion is an
application for a Commission order or
ruling by a presiding officer. Motions
may be presented by any person who
participates in, or who seeks to
participate in, a proceeding before the
Commission. Motions may be supported
by declarations, exhibits, library
references, attachments, and other
submissions. Motions shall set forth
with particularity the ruling or relief
sought, the grounds therefore and the
statutory and other authorities relied
upon. Motions shall be in writing,
except that after a hearing has
convened, motions may be made orally
to the Commission or to the presiding
officer if one has been appointed.
(b) Responses to motions. A response
to a motion may be presented by any
person who participates in, or who
seeks to participate in, a proceeding
before the Commission. Responses shall
state with particularity the position of
the person submitting the response with
regard to the relief or ruling requested
in the motion and the grounds therefore
and the statutory and other authorities
relied upon. Responses to written
motions must be filed within seven days
after the motion is filed and posted on
the Commission’s website, or such other
deadline as the rules of practice provide
or as the Commission or presiding
officer may establish. Responses to oral
motions made during a hearing may be
made orally to the Commission or to the
presiding officer if one has been
appointed, unless directed to reduce the
response to writing for subsequent
consideration.
(c) Replies. Unless the Commission or
presiding officer otherwise provides, no
reply to a response or any further
responsive document may be filed.
(d) Rulings. The Commission or the
presiding office may rule on a motion in
writing, or orally during a hearing. A
ruling may be issued immediately,
without waiting for a response,
whenever the person propounding the
motion asserts that all affected persons
have been contacted and agree not to
oppose the motion or when the
Commission in its discretion determines
that immediate action is appropriate.
§ 3010.161
Motions for waiver.
(a) Any person may file a motion
requesting that any requirement
imposed by regulation, order, ruling, or
Commission, Chairman, or presiding
officer request be waived.
(b) Motions for waiver will not be
entertained unless timely filed so as to
permit disposition of the motion prior to
the date specified for the requirement
for which waiver is requested. The
PO 00000
Frm 00016
Fmt 4701
Sfmt 4700
pendency of a motion for waiver does
not excuse any person from timely
meeting the requirement for which the
waiver is requested.
(c) Motions for waiver may be granted
in whole or in part to the extent
permitted by law upon a showing of
good cause and that such waiver will be
consistent with the public interest and
will not unduly prejudice the interests
of other participants.
§ 3010.162 Motions for continuances and
extensions of time.
(a) Any person may file a motion
requesting the continuance of a hearing
or the extension of time for any
deadline.
(b) The motion should be filed before
the expiration of the specified time for
the deadline for preforming the act for
which the continuance or extension is
requested.
(c) The motion shall only be granted
upon consideration of the potential
adverse impact, if any, on other
participants and the overall impact on
the procedural schedule.
§ 3010.163
Motions for late acceptance.
(a) Any person may file a motion
requesting that the Commission or the
presiding officer accept any material
filed by that person after an established
filing deadline.
(b) The motion should be filed prior
to or concurrent with the filing of any
material filed after the established
deadline.
(c) The Commission or the presiding
officer are under no obligation to further
consider any material filed after an
established deadline, unless late
acceptance is approved by the
Commission or presiding officer.
Posting late filed material to the
Commission’s website alone is not an
indication that the material will be
considered.
§ 3010.164
Motions to strike.
(a) Any person may, by motion,
request that any material be stricken
from consideration in any proceeding.
(b) Motions to strike are requests for
extraordinary relief that must be
supported with justification for why the
material should be stricken from
consideration. Motions to strike shall
not be used as a substitute for rebuttal
testimony, briefs, comments, or any
other form of pleading.
§ 3010.170
Information requests.
(a) An information request is an
informal discovery mechanism used at
the discretion of the Commission, the
Chairman of the Commission, or a
presiding officer to obtain information
that is likely to materially assist the
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Commission in the conduct of its
proceedings, in the preparation of its
reports, or in the performance of its
functions under title 39 of the United
States Code.
(b) Information requests may be used
to:
(1) Require the Postal Service in any
proceeding, or any party to a
Commission hearing on the record, to
provide any information, and associated
documents or things in its possession or
control, or any information, and any
associated documents or things that it
can obtain through reasonable effort and
expense; or
(2) Request that any person other than
the Postal Service or a party to a
Commission hearing on the record
provide any information, and any
associated documents or things that it
can obtain through reasonable effort and
expense.
(c) Information that can be sought by
information request includes, but is not
limited to, explanations, confirmations,
factual descriptions, data, documents,
and other materials. Documents refer to
hard copy or electronic conveyance of
information and may be stored in any
medium from which information can be
obtained either directly or, if necessary,
after translation into a reasonably usable
form. Documents include, but are not
limited to, writings, notes, graphs,
charts, data files, emails, drawings,
photographs, and images. Materials
include all matter, other than
documents, that convey information.
(d) Information requests shall describe
the information, documents, or things
sought; shall briefly explain the reason
for the request; and shall specify a date
by which the response(s) shall be due.
(e) Any person may request the
issuance of an information request by
motion. The motion shall list the
information, documents, or things
sought; shall explain the reasons the
information request should be issued;
and shall demonstrate why the
information sought is relevant and
material to the Commission’s duties
under title 39 of the United States Code.
Upon consideration of the motion and
any responses, the Commission, the
Chairman of the Commission, or
presiding officer may issue an
information request that includes some
or all of the proposed questions or
modified versions of some or all of the
proposed questions. Motions that do not
result in the issuance of an information
request prior to the Commission’s final
decision in the docket shall be deemed
denied.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
Subpart E—Proceedings Using Notice
and Comment Procedures
§ 3010.200
Applicability.
(a) Except as otherwise provided in
this section, the Commission shall
conduct proceedings in conformance
with the notice and comment
procedures of this subpart whenever:
(1) The Commission is considering
the issuance, amendment, or repeal of
any Commission rule or regulation;
(2) The Commission is seeking
information to inform potential future
Commission action with or without the
issuance of a final decision; or
(3) The Commission in the exercise of
its discretion determines it is
appropriate.
(b) Unless the Commission orders
otherwise, the rules in this subpart shall
not apply to proceedings governed by
subpart F of this part (Proceedings with
an Opportunity for a Hearing on the
Record). The rules in this subpart also
shall not apply to the following parts of
subchapter D of chapter III (Special
Rules of Practice for Specific Proceeding
Types) of this title: part 3020 (Rules
Applicable to Requests for Changes in
the Nature of Postal Services) of this
chapter, part 3021 (Rules for Appeals of
Postal Service Determinations to Close
or Consolidate Post Offices) of this
chapter, part 3022 (Rules for
Complaints) of this chapter, part 3023
(Rules for Rate or Service Inquiries) of
this chapter, and part 3024 (Special
Rules for Complaints Alleging
Violations of 39 U.S.C. 404a) of this
chapter.
§ 3010.201
Initiation of a proceeding.
(a) The Commission may on its own
motion initiate a proceeding under this
subpart by issuing a notice and order
initiating proceeding pursuant to
§ 3010.151.
(b)(1) Any person may request the
initiation of a proceeding under this
subpart by filing a petition with the
Commission pursuant to the filing
requirements of subpart B of this part.
The petition shall:
(i) Provide the name, address, phone
number and other pertinent contact
information of the requesting person;
(ii) Identify the subject matter of the
petition;
(iii) Provide specific proposals,
including specific language, in regard to
the subject matter of the petition;
(iv) Provide all facts, views,
arguments, and data deemed to support
the action requested; and
(v) Describe the impact of the
proposal on the person filing the
petition, the Postal Service, the mailing
community, and the Commission, as
applicable.
PO 00000
Frm 00017
Fmt 4701
Sfmt 4700
9629
(2) Upon consideration of the petition,
the Commission in its discretion may
initiate a proceeding under this subpart
by issuing a notice and order initiating
proceeding pursuant to § 3010.151,
reject the petition, or defer a decision
whether to grant or reject the petition.
The Commission shall provide an
explanation for the rejection or delay in
consideration of any petition.
(c) Subparts A, B, C, and D of this part
apply to the initiation and conduct of
proceedings under this subpart E.
§ 3010.202 Participation in notice and
comment proceedings.
(a) Comments. The primary method
for participating in notice and comment
proceedings is through the filing of
comments in accordance with
§ 3010.140. The notice and order
initiating proceeding filed pursuant to
§ 3010.151 shall provide the deadline
for filing comments, and if provided for,
reply comments.
(b) Information requests. The
Commission, Chairman, or presiding
officer may in its or their own discretion
or, if requested by an interested person
by motion, issue information requests
pursuant to § 3010.170.
(c) Technical conferences. The
Commission, Chairman, or presiding
officer may in its or their own discretion
or, if requested by an interested person
by motion, convene one or more off the
record technical conferences to consider
the matters being considered.
(d) Oral presentations. The
Commission, Chairman, or presiding
officer may in its or their own discretion
or, if requested by an interested person
by motion, permit oral presentations
regarding the matters being considered.
(e) Other procedures. The
Commission, the Chairman, or presiding
officer may order additional procedures
as appropriate.
§ 3010.203
Commission action.
(a) The Commission shall consider all
relevant comments and material of
record before taking any final action.
Any final decision which includes the
issuance, amendment, or repeal of a rule
or regulation, shall, at a minimum,
publish the final rule or regulation in
the Federal Register.
(b) Any issuance, amendment, or
repeal of a rule or regulation will be
made effective not less than 30 days
from the time it is published in the
Federal Register except as otherwise
specified in paragraph (c) of this
section. If the order issuing, amending,
or repealing a rule does not specify an
effective date, the effective date shall be
30 days after the date on which the
Commission’s order is published in the
E:\FR\FM\19FER2.SGM
19FER2
9630
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Federal Register, unless a later date is
required by statute or is otherwise
specified by the Commission.
(c) For good cause shown by
publication with the rule, any issuance,
amendment, or repeal of a rule may be
made effective in less than 30 days from
the time the Commission’s order is
published in the Federal Register.
(d) Rules involving any military,
naval or foreign affairs function of the
United States; matters relating to agency
management or personnel, public
property, loans, grants, benefits or
contracts; rules granting or recognizing
exemption or relieving restriction; rules
of organization, procedure or practice;
or interpretative rules; and statements of
policy may be made effective without
regard to the 30-day requirement.
Subpart F—Proceedings With an
Opportunity for a Hearing on the
Record.
§ 3010.300
Applicability.
The Commission shall conduct
proceedings on the record with the
opportunity for a hearing subject to this
subpart whenever:
(a) The Commission determines that a
complaint filed under part 3022 of this
chapter raises one or more material
issues of fact or law in accordance with
§ 3022.30 of this chapter and a
proceeding on the record with the
opportunity for a hearing is necessary;
(b) The Commission determines that
the streamlined procedures in part 3020
of this chapter applicable to a Postal
Service request to change the nature of
postal services which will generally
affect service on a nationwide or
substantially nationwide basis are not
appropriate; or
(c) The Commission in the exercise of
its discretion determines it is
appropriate.
§ 3010.301
Notice of proceeding.
Whenever the Commission
determines that a proceeding will be
held on the record with an opportunity
for a hearing under this part, it shall
publish notice of the proceeding in the
Federal Register pursuant to § 3010.151.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.302
Prehearing conferences.
(a) Initiation and purposes. The
Commission or the presiding officer, if
one has been appointed, may direct the
parties in a proceeding to appear for a
prehearing conference for the purposes
of considering all possible ways of
expediting the proceeding, including
those in paragraph (e) of this section.
Prehearing conference procedures shall
be rigorously pursued by all parties.
(b) Who presides. The presiding
officer, if one has been designated, shall
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
preside over prehearing conferences. If
a presiding officer has not been
designated or is otherwise unavailable
for a prehearing conference, then the
ranking Commissioner in attendance
shall be considered the presiding officer
for that conference. The presiding
officer shall open and close each
prehearing conference session and shall
be responsible for controlling the
conduct of the conference.
(c) Informal off-the-record procedures.
In order to make the prehearing
conference as effective as possible, the
presiding officer may direct that
conferences be held off the record,
without the presiding officer present.
Informal off-the-record conferences
shall be presided over by the Public
Representative or such other person as
the parties may select. At off-the-record
conferences, parties shall be expected to
reach agreement on those matters,
which will expedite the proceeding,
including the matters specified in the
notice of the prehearing conference, in
the ruling of the presiding officer
directing that the off-the-record
conference be held, and in paragraph (e)
of this section. A report on the results
of off-the-record conferences shall be
made to the presiding officer on the
record at a time specified by the
presiding officer. The presiding officer
shall then determine the further
prehearing procedures, if any, to be
followed.
(d) Required preparation and
cooperation of all parties. All parties in
any proceeding before the Commission
are required and expected to come to
prehearing conferences fully prepared to
discuss in detail and resolve all matters,
such as those specified in paragraph (e)
of this section, in the notice of the
prehearing conference, and in such
other notice or agenda as may have been
issued by the Commission or the
presiding officer. All parties are
required and expected to cooperate fully
at all stages of the proceeding to achieve
these objectives through thorough
advance preparation for the prehearing
conference, including informal
communications between the parties,
requests for discovery and appropriate
discovery procedures at the earliest
possible time and no later than at the
prehearing conference, and the
commencement of preparation of
evidence and cross-examination. The
failure of any party to appear at the
prehearing conference or to raise any
matters that could reasonably be
anticipated and resolved at the
prehearing conference shall not be
permitted to unduly delay the progress
of the proceeding and shall constitute a
waiver of the rights of the party with
PO 00000
Frm 00018
Fmt 4701
Sfmt 4700
regard thereto, including all objections
to the agreements reached, actions
taken, or rulings issued by the presiding
officer with regard thereto.
(e) Matters to be pursued. At the
prehearing conference, the presiding
officer and the parties shall consider
and resolve such matters as:
(1) The definition and simplification
of the issues, including any appropriate
explanation, clarification, or
amendment of any proposal, filing,
evidence, complaint or other pleading
filed by any party;
(2) Arrangements for timely
completion of discovery from the Postal
Service or any other party of
information regarding any issues in the
proceeding, prior filings, evidence or
pleadings of any party;
(3) Procedures for timely discovery
with regard to any future evidentiary
filings of any party;
(4) Stipulations, admissions or
concessions as to evidentiary facts, and
agreements as to documentary matters,
exhibits and matters of official notice,
which will avoid unnecessary proof or
dispute;
(5) The possible grouping of parties
with substantially like interests for
purposes of presenting evidence,
making and arguing motions and
objections, cross-examining witnesses,
filing briefs, and presenting oral
argument to the Commission or
presiding officer;
(6) Disclosure of the number, identity
and qualifications of witnesses, and the
nature of their testimony, particularly
with respect to the policies of the Act
and, as applicable according to the
nature of the proceeding;
(7) Limitation of the scope of the
evidence and the number of witnesses
in order to eliminate irrelevant,
immaterial, or cumulative and
repetitious evidence;
(8) Procedures to direct and control
the use of discovery prior to the hearing
and submission of written testimony
and exhibits on matters in dispute so as
to restrict to a bare minimum the
amount of hearing time required for oral
cross-examination of witnesses;
(9) Division of the proceeding where
practicable into two or more phases for
separate and, if advisable, simultaneous
hearings;
(10) Establishment of dates for the
submission and service of such written
testimony and exhibits as may be
appropriate in advance of the hearing;
(11) The order of presentation of the
evidence and cross-examination of
witnesses so that the hearing may
proceed in the most expeditious and
orderly manner possible; and
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
(12) All other matters which would
aid in an expeditious disposition of the
proceeding, including consent of the
parties to the conduct of the entire
proceedings off the record.
(f) Rulings by presiding officer. (1)
The presiding officer at a prehearing
conference, shall, irrespective of the
consent of the parties, dispose of by
ruling:
(i) Any of the procedural matters
itemized in paragraph (e) of this section;
and
(ii) Such other procedural matters on
which the presiding officer is
authorized to rule during the course of
the hearing if ruling at this stage would
expedite the proceeding.
(2) Either on the record at the
conclusion of such prehearing
conference, or by order issued shortly
thereafter, the presiding officer shall
state the agreements reached by the
parties, the actions taken, and the
rulings made by the presiding officer.
Such rulings shall control the
subsequent course of the proceedings
unless modified during the hearing to
prevent manifest injustice.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.303
Hearing format.
(a) In any case noticed for a
proceeding to be determined on the
record, the Commission or the presiding
officer, if one has been appointed, may
determine whether to hold a public
hearing, or to hold a hearing by written
submission of material only. A public
hearing may be held if a hearing is
requested by any party to the
proceeding or if the Commission
determines that a hearing is in the
public interest. Generally, public
hearings provide an opportunity for oral
cross-examination of witnesses whereas
hearings held by written submission of
material only do not.
(b) Once established, requests to
change the hearing format may be
proposed by motion, or by the
Commission’s or presiding officer’s own
motion.
(c) Only representatives of the
Commission, parties that have
intervened in a proceeding, or persons
intending to intervene prior to the
deadline for notices of intervention may
participate in a public hearing.
However, public hearings are generally
open to the public for observation.
Public hearings may be closed to the
public for good cause, or when
confidential material is being presented.
§ 3010.304
Scheduling order.
(a) When issued. Upon consideration
of the outcome of the prehearing
conference, if held, and a determination
of the need for a public hearing, the
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
Commission, or the presiding officer if
one has been appointed, shall issue a
scheduling order. The scheduling order
may be combined with any other order
or ruling that the Commission or the
presiding officer may issue. The
scheduling order may be periodically
modified as warranted.
(b) Content of scheduling order. The
content of the scheduling order shall be
tailored to the specifics of the matter
before the Commission, including any
requirement for a public hearing. The
Commission or the presiding officer
shall consider scheduling the following:
(1) A deadline for conclusion of
discovery on proponent’s direct case;
(2) A deadline to request oral crossexamination of proponent’s witnesses;
(3) A deadline for designation of
written cross-examination on
proponent’s direct case;
(4) The time and date for a public
hearing on proponent’s direct case, or
the date and procedures for entering a
proponent’s direct case into evidence in
a hearing by written submission of
material only;
(5) A deadline for parties other than
the proponent to file testimony in
support of, or in rebuttal to, the
proponent’s direct case;
(6) A deadline for conclusion of
discovery on testimony supporting or
rebutting the proponent’s direct case;
(7) A deadline to request oral crossexamination of other parties’ witnesses;
(8) A deadline for designation of
written cross-examination on other
parties’ testimony;
(9) The time and date for a public
hearing on other parties’ testimony, or
the date and procedures for entering
other parties’ testimony in a hearing by
written submission of material only;
(10) A deadline for the proponent to
file surrebuttal testimony to other
parties’ direct cases;
(11) A deadline for conclusion of
discovery on any proponent’s
surrebuttal rebuttal testimony;
(12) A deadline to request oral crossexamination of proponent’s surrebuttal
witnesses;
(13) A deadline for designation of
written cross-examination on
proponent’s surrebuttal testimony;
(14) The time and date for a public
hearing on a proponent’s surrebuttal
testimony, or the date and procedures
for entering a proponent’s surrebuttal
testimony in a hearing by written
submission of material only;
(15) A deadline for filing briefs;
(16) A deadline for filing reply briefs;
and
(17) A deadline for requesting oral
argument.
(c) Witness availability. Parties shall
promptly file notice of potential witness
PO 00000
Frm 00019
Fmt 4701
Sfmt 4700
9631
unavailability to appear at any public
hearing as soon as known. Witness
unavailability will be considered when
establishing the initial, or any
subsequent, procedural schedules. Once
the initial scheduling order is issued,
but no later than ten calendar days prior
to a scheduled hearing, parties may file
notice of preferences for dates and times
of witness appearance at any public
hearing.
(d) Subsequent scheduling of public
hearings. At the adjournment of any
public hearing (including prehearing
conferences), the Commission, or the
presiding officer if appointed, shall
announce when the hearing will
reconvene. If an announcement is not
made, the Commission or the presiding
officer shall announce the time, date,
and location of the subsequent hearing,
or prehearing conference in writing by
notice, order, or presiding officer ruling.
§ 3010.310
Discovery—general policy.
(a) Sections 3010.311 through
3010.313 allow discovery reasonably
calculated to lead to admissible
evidence during a proceeding noticed
for hearing on the record. In general,
discovery against a party will be
scheduled to end prior to the receipt
into evidence of that party’s direct case.
An exception to this procedure shall
operate in all proceedings set for
hearing when a party needs to obtain
information (such as operating
procedures or data) available only from
the Postal Service. Such discovery
requests are permissible only for the
purpose of the development of rebuttal
testimony and may be made up to 20
days prior to the filing date for final
rebuttal testimony.
(b) The discovery procedures set forth
in §§ 3010.311 through 3010.313 are not
exclusive. Parties are encouraged to
engage in informal discovery whenever
possible to clarify exhibits and
testimony. The results of these efforts
may be introduced into the record by
stipulation, by supplementary testimony
or exhibit, by presenting selected
written interrogatories and answers for
adoption by a witness at the hearing, or
by other appropriate means. In the
interest of reducing motion practice,
parties also are expected to use informal
means to clarify questions and to
identify portions of discovery requests
considered overbroad or burdensome.
(c) If a party or an officer or agent of
a party fails to obey an order of the
Commission or the presiding officer to
provide or permit discovery pursuant to
§§ 3010.311 through 3010.313, the
Commission or the presiding officer
may make such orders in regard to the
failure as are just, and among others,
E:\FR\FM\19FER2.SGM
19FER2
9632
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
may direct that the matters regarding
which the order was made or any other
designated facts shall be taken to be
established for the purposes of the
proceeding in accordance with the
claim of the parties obtaining the order,
or prohibit the disobedient party from
introducing designated matters in
evidence, or strike the evidence,
complaint or pleadings or parts thereof.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.311 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 party may
propound to any other party in a
proceeding written, sequentially
numbered interrogatories, by witness,
requesting non-privileged information
relevant to the subject matter and
reasonably calculated to lead to the
discovery of admissible evidence in
such proceeding, to be answered by the
party served, who shall furnish such
information as is available to the
requesting party. A party through
interrogatories may require any other
party to identify each person whom the
other party expects to call as a witness
at the hearing and to state the subject
matter on which the witness is expected
to testify. The party propounding the
interrogatories shall file them with the
Commission and serve them on the
answering party. Follow-up
interrogatories to clarify or elaborate on
the answer to an earlier discovery
request may be filed after the initial
discovery period ends. They must be
filed within seven days of receipt of the
answer to the previous interrogatory
unless extraordinary circumstances are
shown.
(b) Answers. Answers to discovery
requests shall be prepared so that they
can be incorporated as written crossexamination. Each answer shall begin
on a separate page, identify the
individual responding and the relevant
testimony number, if any, the party who
asked the question, and the number and
text of the question. 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 file the answers with the
Commission and serve them on the
requesting party within 14 days of the
filing of the interrogatories or within
such other period as may be fixed by the
Commission or presiding officer, but
before the conclusion of the hearing.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(c) Objections. In the interest of
expedition, the grounds for every
objection shall be clearly and fully
stated. If an objection is made to part of
an interrogatory, the part shall be
specified. A party claiming privilege
shall identify the specific evidentiary
privilege asserted and state the reasons
for its applicability. A party claiming
undue burden shall state with
particularity the effort that 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 shall be filed with the
Commission and served on the
requesting party within ten days of the
filing of the interrogatories. Any ground
not stated in a timely objection is
waived unless excused by the
Commission or presiding officer for
good cause shown.
(d) Motions to compel responses to
discovery. Motions to compel a more
responsive answer, or an answer to an
interrogatory to which an objection was
interposed, should be filed within 14
days of the answer or objection to the
discovery request. The text of the
discovery request, and any answer
provided, should be provided as an
attachment to the motion to compel.
Parties who have objected to
interrogatories which are the subject of
a motion to compel shall have seven
days to answer. Answers will be
considered supplements to the
arguments presented in the initial
objection.
(e) Compelled answers. The
Commission, or the presiding officer,
upon motion of any party to the
proceeding, may compel a more
responsive answer, or an answer to an
interrogatory to which an objection has
been raised if the objection is overruled,
or may compel an additional answer if
the initial answer is found to be
inadequate. Such compelled answers
shall be filed with the Commission and
served on the compelling party within
seven days of the date of the order
compelling an answer or within such
other period as may be fixed by the
Commission or presiding officer, but
before the conclusion of the hearing.
(f) Supplemental answers. The
individual or party who has answered
interrogatories is under the duty to
seasonably amend a prior answer if the
PO 00000
Frm 00020
Fmt 4701
Sfmt 4700
individual or party obtains information
upon the basis of which the individual
or party knows that the answer was
incorrect when made or is no longer
true. Parties shall serve supplemental
answers to update or to correct
responses whenever necessary, up until
the date the answer could have been
accepted into evidence as written crossexamination. Parties filing supplemental
answers shall indicate whether the
answer merely supplements the
previous answer to make it current or
whether it is a complete replacement for
the previous answer.
(g) Orders. The Commission or the
presiding officer may order that any
party or person shall answer on such
terms and conditions as are just and
may for good cause make any protective
order, including an order limiting or
conditioning interrogatories, as justice
requires to protect a party or person
from undue annoyance, embarrassment,
oppression, or expense.
§ 3010.312 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 party may
serve on any other party to the
proceeding a request to produce and
permit the party making the request, or
someone acting on behalf of the
requesting party or the requesting
party’s agent to inspect and copy any
designated documents or things that
constitute or contain matters, not
privileged, that are relevant to the
subject matter involved in the
proceeding or reasonably calculated to
lead to the discovery of admissible
evidence and that are in the custody or
control of the party to whom the request
is addressed. 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 party
requesting the production of documents
or things shall file its request with the
Commission and serve the request on
the responding party.
(b) Answers. The party responding to
the request shall file an answer with the
Commission and serve the answer on
the requesting party within 14 days after
the request is filed, or within such other
period as may be fixed by the
Commission or presiding officer. The
answer shall state, with respect to each
item or category, that inspection will be
permitted as requested unless the
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
request is objected to pursuant to
paragraph (c) of this section. The
responding party may produce copies of
documents or of electronically stored
information in lieu of permitting
inspection. Production must be
completed no later than the time for
inspection specified in the request
unless good cause is shown.
(c) Objections. In the interest of
expedition, the grounds for objection
shall be clearly and fully stated. If an
objection is made to part of an item or
category, the part shall be specified.
Any objection must state whether any
responsive materials are being withheld
on the basis of that objection. A party
claiming privilege shall identify the
specific evidentiary privilege asserted
and state with particularity the reasons
for its applicability. A party claiming
undue burden shall state with
particularity the effort that would be
required to answer the request,
providing estimates of cost and work
hours required, to the extent possible.
Objections shall be filed with the
Commission and served on the
requesting party within ten days of the
request for production. The responding
party may state an objection to a request
to produce electronically stored
information. If it objects to the form of
the documents or things requested (or if
no form was specified in the request),
the responding party must state the form
or forms it intends to use to produce the
requested information.
(d) Motions to compel requests for
production of documents or things for
purposes of discovery. Motions to
compel shall be filed within 14 days of
the answer or objection to the discovery
request. The text of the discovery
request, and any answer provided,
should be provided as an attachment to
the motion to compel. Parties who have
objected to requests for production of
documents or things which are the
subject of a motion to compel shall have
seven days to answer. Answers will be
considered supplements to the
arguments presented in the initial
objection.
(e) Compelled answers. Upon motion
of any party to the proceeding to compel
a response to discovery, as provided in
paragraph (d) of this section, the
Commission or the presiding officer
may compel production of documents
or things to which an objection is
overruled. Such compelled documents
or things shall be made available to the
party making the motion within seven
days of the date of the order compelling
production or within such other period
as may be fixed by the Commission or
presiding officer, but before the
conclusion of the hearing.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(f) Orders and rulings. The
Commission or the presiding officer
may direct any party or person to
respond to a request for inspection on
such terms and conditions as are just
and may for good cause impose any
protective conditions, including
limitations or preconditions for
inspections, as justice requires to
protect a party or person from undue
annoyance, embarrassment, oppression,
or expense.
§ 3010.313 Requests for admissions for
purpose of discovery.
(a) Service and content. In the interest
of expedition, any party may serve upon
any other party 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.
Each requested admission shall be set
forth separately and shall be deemed
admitted unless within 14 days after the
request is filed (or such other period as
may be fixed by the Commission or
presiding officer) the party to whom the
request is directed files a written answer
denying the requested admission
pursuant to paragraph (c) of this section
or objecting pursuant to paragraph (d) of
this section. The party requesting an
admission shall file its request with the
Commission and serve the request on
the responding party.
(b) Answers. Answers that fail to
admit a matter as requested shall
specifically deny the matter or set forth
in detail the reasons why the answering
party cannot truthfully admit or deny
the matter. A denial shall fairly meet the
substance of the requested admission.
When a party qualifies an answer or
denies only a part of the admission
requested, the party shall specify so
much of the requested admission as is
true and qualify or deny the remainder.
A failure to admit or deny for lack of
information or knowledge shall not be
made unless the responding party states
that it has made a reasonable inquiry
and that information known or readily
obtainable by the party is insufficient to
enable the party to admit or deny. A
party who answers a request for
admission shall file its answer with the
Commission and serve the answer on
the requesting party.
(c) Objections. If an objection is made,
the grounds for such objection shall be
clearly and fully stated. If an objection
is made to part of an item, the part to
which an objection is made shall be
specified. A party claiming privilege
shall identify the specific evidentiary
privilege asserted and state the reasons
for its applicability. A party claiming
PO 00000
Frm 00021
Fmt 4701
Sfmt 4700
9633
undue burden shall state with
particularity the effort that would be
required to answer the request,
providing estimates of cost and work
hours required to the extent possible.
Objections shall be filed with the
Commission and served on the
requesting party, within ten days of the
request for admissions.
(d) Motions to compel responses to
requests for admissions. The party who
has requested an admission may move
to determine the sufficiency of the
answers or objections. Motions to
compel a more responsive answer, or an
answer to a request to which an
objection was interposed, shall be filed
within 14 days of the answer or
objection to the request for admissions.
The text of the request for admissions,
and any answer provided, should be
provided as an attachment to the motion
to compel. Parties who have objected to
requests for admissions which are the
subject of a motion to compel shall have
seven days to file a response. Responses
will be considered supplements to the
arguments presented in the initial
objection.
(e) Compelled answers. The
Commission or the presiding officer
may compel answers to a request for
admissions to which an objection has
been raised if the objection is overruled.
Such compelled answers shall be filed
with the Commission and served on the
requesting party within seven days of
the date of the order compelling
production or within such other period
as may be fixed by the Commission or
the presiding officer, but before the
conclusion of the hearing. If the
Commission or presiding officer
determines that an answer does not
comply with the requirements of this
rule, it may order either that the matter
is admitted or that an amended answer
be filed.
§ 3010.320
Settlement conferences.
Any party to a proceeding may submit
offers of settlement or proposals of
adjustment at any time and may request
a conference between the parties to
consider such offers or proposals. The
Commission or the presiding officer
shall afford the parties appropriate
opportunity prior to or during the
hearing for conferences for the purpose
of considering such offers or proposals
as time, the nature of the proceeding,
and the public interest permit.
Unaccepted offers of settlement or
adjustment and proposed stipulations
not agreed to shall be privileged and
shall not be admissible in evidence
against any party claiming such
privilege.
E:\FR\FM\19FER2.SGM
19FER2
9634
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.321
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Hearings.
(a) How convened. (1) Hearings shall
be convened by the issuance of a notice,
order, or presiding officer’s ruling that
is published in the Federal Register.
Only the first session of a public hearing
need be noticed and published in the
Federal Register. All subsequent
sessions within a docket are to be
considered part of the same hearing. If
there is a prehearing conference, the
prehearing conference is to be
considered the first hearing session in
that docket.
(2) At the adjournment of each
hearing session, the presiding officer
responsible for the conduct of that
hearing session shall announce if and
when the hearing will reconvene. If an
announcement is not made at the
adjournment of the hearing session, the
Commission or presiding officer shall
announce the time, date, and location of
any subsequent hearing, or prehearing
conference, in writing by notice, order,
or presiding officer ruling.
(b) Who presides. The presiding
officer, if designated, shall preside over
a public hearing. If a presiding officer
has not been designated or is otherwise
unavailable for a hearing, then the
ranking Commissioner in attendance
shall be considered the presiding officer
for that hearing. The presiding officer
shall open and close each session of the
hearing, and shall be responsible for
controlling the conduct of the hearing.
(c) Entering of appearances. The
presiding officer before whom the
hearing is held will cause to be entered
on the record all appearances together
with a notation showing on whose
behalf each such appearance has been
made.
(d) Witnesses. All witnesses are
expected to be available for public
hearings. Unless otherwise ordered by
the presiding officer, a witness need
only attend a hearing on those days
scheduled for entering that witness’s
testimony. Subject to the discretion and
prior approval of the presiding officer,
a witness may be excused from
appearing at a hearing and may have the
witness’s written testimony and crossexamination entered into evidence by
counsel.
(e) Order of presentations. (1) The
proponent of a matter before the
Commission shall present the
proponent’s direct case first. In matters
initiated by the Postal Service, the
Postal Service shall be considered the
proponent. In complaint proceedings
under section 3662 of the Act, the
complainant shall be considered the
proponent. The proponent also shall be
provided an opportunity to respond to
any rebuttal to the proponent’s direct
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
case. In all other instances, the
Commission or the presiding officer
shall determine the order of
presentation.
(2) The order of presentations by
parties other than the proponent shall
be determined by the Commission or the
presiding officer.
(3) The Commission or presiding
officer shall announce the order of
presentation of parties and individual
witnesses prior to hearing sessions and
shall issue such other procedural orders
as may be necessary to assure the
orderly and expeditious conclusion of
the hearing. Parties may present their
preferences for order of appearance to
the Commission or the presiding officer
orally at a hearing or by filing a notice
prior to the scheduled hearing date.
Parties who disagree with a proposed
order of appearances may move for a
revised order of appearances either
orally at a hearing or by filing a written
motion pursuant to § 3010.160.
(f) Swearing in of witnesses. (1)
Witnesses attending a hearing whose
testimony is to be taken shall be sworn,
or shall affirm, before their testimony
shall be deemed evidence in the
proceeding or any questions are put to
them. The witness shall be sworn by
means of the following (or an
equivalent): ‘‘Please raise your right
hand. Do you solemnly swear (or
affirm), that the testimony that you are
about to give is the truth, the whole
truth, and nothing but the truth? Please
state your full name.’’
(2) The oath shall be given upon the
first appearance of the witness
providing testimony. Upon subsequent
appearances, the witness is to be
reminded by the presiding officer that
the witness remains under oath for the
duration of the proceeding.
(3) Witnesses not attending a hearing
whose testimony is entered by counsel
during a hearing shall attach a signed
declaration that the testimony being
submitted is that of the witness. A
declaration shall be included with each
piece of written testimony, and each set
of written cross-examination. The
declaration shall state the following (or
an equivalent): ‘‘Declaration of [witness
name]. I, [witness name], hereby declare
under penalty of perjury that: The
[testimony, designated responses to
written cross-examination] filed under
my name were prepared by me or under
my direction; and were I to [provide oral
testimony, respond orally to the
questions appearing in the
interrogatories], my answers would be
the same.’’
(4) Hearings that are conducted by the
written submission of testimony only
shall also attach written declarations to
PO 00000
Frm 00022
Fmt 4701
Sfmt 4700
testimony and cross-examination as
described above.
(g) Presentation of the evidence—(1)
Presentations by parties. Each party
shall have the right to present evidence,
cross-examine witnesses (limited to
testimony adverse to the party
conducting the cross-examination), and
to present objections, motions, and
arguments. The case-in-chief of parties
other than the proponent shall be in
writing and shall include the party’s
direct case and rebuttal, if any, to the
initial proponent’s case-in-chief. A
party’s presentation may be
accompanied by a trial brief or legal
memoranda. Legal memoranda on
matters at issue are generally welcome
at any stage of the proceeding. Parties
will be given an opportunity to rebut
presentations of other parties, including
an opportunity for the initial proponent
to present surrebuttal evidence. New
affirmative matter (not in reply to
another party’s direct case) should not
be included in rebuttal testimony or
exhibits. When objections to the
admission or exclusion of evidence
before the Commission or the presiding
officer are made, the grounds relied
upon shall be stated. Formal exceptions
to rulings are unnecessary.
(2) Written testimony. (i) Written
testimony shall be offered in evidence
by motion. The motion shall be made
orally during a hearing, or in writing
when the hearing is conducted by the
written submission of testimony only.
When a party moves to enter testimony
into the record, three hard copies of the
document shall simultaneously be
submitted to the Commission for the
record. The copies are to be printed
single-sided, and not stapled, holepunched, or bound, but may be fastened
together by paper or binder clip, or
equivalent.
(ii) Witnesses shall be provided an
opportunity to verify that the written
testimony they are sponsoring is their
testimony and that it would be the same
if given orally. The witness, or counsel,
shall state the original filing date of the
testimony and identify all subsequent
filings that amended the original
testimony. If there are any final
corrections to the testimony, the
corrections may be noted on the hard
copies submitted to the Commission.
However, the witness shall be required
to file errata to the testimony within
seven days of the hearing, making
corrections only to the extent as
identified during the hearing. Any other
changes shall be requested separately by
motion to amend the record.
(iii) Parties shall be provided an
opportunity to object to all or part of a
witness’s written testimony prior to
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
entering that testimony into the record.
Objections that have not previously
been made in writing at least 14 days
prior to the hearing date shall be granted
only under extraordinary circumstances.
(iv) After resolution of all objections,
the presiding officer shall order the
testimony entered into the record as
evidence. Unless otherwise ordered by
the presiding officer, the written
testimony shall not be copied into the
hearing transcript.
(3) Library references. (i) Library
references sponsored by a witness and
associated with the witness’s written
testimony or written cross-examination
may be offered in evidence by motion.
The motion shall be made orally during
a public hearing, or in writing for a
hearing that is conducted by the written
submission of testimony only.
(ii) Witnesses shall be provided an
opportunity to verify that the library
reference is their library reference and
to affirm that they are in fact sponsoring
the library reference. If a witness
inadvertently fails to verify and affirm
that the witness is sponsoring a library
reference that is cited in written
testimony or in response to written
cross-examination, it will be presumed
that the library reference is to be
included in the record to the extent
specified in the notice of the filing of
the library reference.
(iii) Parties shall be provided an
opportunity to object to all or any part
of the library reference being entered
into the record. Objections that have not
been made in writing at least 14 days
prior to the hearing date shall be granted
only under extraordinary circumstances.
(iv) After resolution of all objections,
the presiding officer shall order the
library reference be entered into the
record as evidence. Unless ordered by
the presiding officer, library references
shall not be copied into the hearing
transcript.
(4) Written cross-examination. (i)
Written cross-examination will be
utilized as a substitute for oral crossexamination whenever possible,
particularly to introduce factual or
statistical evidence. Written crossexamination may be offered in evidence
by motion. The motion shall be made
orally during a public hearing, or in
writing for a hearing that is conducted
by the written submission of testimony
only. Written cross-examination
proposed by parties other than the party
associated with the witness shall be
considered first, followed by that of the
party of the witness.
(ii) Designations of written crossexamination should be filed with the
Commission and served on the
answering party no later than three
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
working days before the scheduled
appearance of a witness. Designations
shall identify every item to be offered as
evidence, listing the party who initially
posed the discovery request, the witness
and/or party to whom the question was
addressed (if different from the witness
answering), the number of the request
and, if more than one answer is
provided, the dates of all answers to be
included in the record. (For example,
‘‘PR–T1–17 to USPS witness Jones,
answered by USPS witness Smith
(March 1, 1997) as updated (March 21,
1997)).’’ When a party designates
written cross-examination, three hard
copies of the documents to be included
shall simultaneously be submitted to the
Secretary. The documents are to be
printed single-sided, and not stapled,
hole-punched, or bound, but may be
fastened together by paper or binder
clip, or equivalent. The Secretary shall
prepare for the record a packet
containing all materials designated for
written cross-examination in a format
that facilitates review by the witness
and counsel.
(iii) A witness shall be provided an
opportunity to verify that the written
cross-examination is that of the witness
and to assert that if the written crossexamination were being provided orally
at the hearing it would be that of the
witness. If there are any final
corrections to the written crossexamination, the corrections may be
noted on the hard copies before
submission to the Commission.
(iv) Parties shall be provided an
opportunity to object to all or any part
of the written cross-examination prior to
entering the testimony into the record.
(v) After resolution of all objections,
the presiding officer shall order the
written cross-examination entered into
the record as evidence. The presiding
office shall direct that the written crossexamination be copied into the hearing
transcript.
(5) Oral cross-examination. (i) Oral
cross-examination will be permitted for
clarifying written cross-examination and
for testing assumptions, conclusions, or
other opinion evidence.
(ii) Notices of intent to conduct oral
cross-examination should be filed three
or more working days before the
announced appearance of the witness
and should include specific references
to the subject matter to be examined and
page references to the relevant direct
testimony and exhibits. If no notices are
filed, and the Commission or presiding
officer has no other reason for the
witness to appear, the Commission or
the presiding officer, in their discretion,
may excuse the witness from appearing
at the hearing and direct that the
PO 00000
Frm 00023
Fmt 4701
Sfmt 4700
9635
witness’s testimony be entered by
counsel.
(iii) A party intending to use complex
numerical hypotheticals, or to question
using intricate or extensive crossreferences, shall provide adequately
documented cross-examination exhibits
for the record. Copies of these exhibits
should be filed at least two full business
days before the scheduled appearance of
the witness. They may be filed online or
delivered in hardcopy form to counsel
for the witness, at the discretion of the
party. When presented, examination
exhibits are not to be considered record
evidence. They are to be transcribed
into the record for reference only. If
adopted by the witness, the examination
exhibit may be offered in evidence by
motion.
(iv) At the conclusion of oral crossexamination, the witness shall be given
an opportunity to consult with counsel.
Counsel shall then be provided an
opportunity to examine the witness for
the purpose of clarifying statements
previously made during oral crossexamination.
(h) Institutional testimony. (1) This
paragraph (h) is applicable to testimony
offered in evidence that is not
sponsored by an individual witness.
This typically occurs when discovery
questions are answered by the
institution, and not by an individual
witness.
(2) When institutional responses are
offered in evidence by any party, the
responding party shall make available at
the hearing an officer of the institution
that has the authority to attest to the
authenticity and truthfulness of the
responses, and that has the knowledge
to be subject to oral cross-examination
in regard to the responses. Section
3010.321 applies as if the officer of the
institution were an individual witness.
(i) Limitations on presentation of the
evidence. The taking of evidence shall
proceed with all reasonable diligence
and dispatch, and to that end, the
Commission or the presiding officer
may limit appropriately the number of
witnesses to be heard upon any issue,
the examination by any party to specific
issues, and the cross-examination of a
witness to that required for a full and
true disclosure of the facts necessary for
the disposition of the proceeding and to
avoid irrelevant, immaterial, or unduly
repetitious testimony.
(j) Motions during hearing. After a
hearing has commenced, a request may
be made by motion to the presiding
officer for any procedural ruling or relief
desired. Such motions shall specify the
ruling or relief sought, and state the
grounds therefor and statutory or other
supporting authority. Motions made
E:\FR\FM\19FER2.SGM
19FER2
9636
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
during hearings may be stated orally
upon the record, except that the
presiding officer may require that such
motions be reduced to writing and filed
separately. Any party shall have the
opportunity to answer or object to such
motions at the time and in the manner
directed by the presiding officer.
(k) Rulings on motions. The presiding
officer is authorized to rule upon any
such motion not formally acted upon by
the Commission prior to the
commencement of a prehearing
conference or hearing where immediate
ruling is essential in order to proceed
with the prehearing conference or
hearing, and upon any motion to the
presiding officer filed or made after the
commencement thereof, except that no
motion made to the presiding officer, a
ruling upon which would involve or
constitute a final determination of the
proceeding, shall be ruled upon
affirmatively by the presiding officer
except as a part of a presiding officer’s
intermediate decision. This section shall
not preclude a presiding officer, within
the presiding officer’s discretion, from
referring any motion made in hearing to
the Commission for ultimate
determination.
(l) 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. Any request to
correct a transcript shall be by motion
filed no later than seven days after the
transcript, or notice of the availability of
a confidential transcript, is posted to the
Commission’s website. Corrections or
changes to actual testimony shall not be
allowed.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.322
Evidence—general.
(a) Form and admissibility. In all
hearings, relevant and material evidence
which is not unduly repetitious or
cumulative shall be admissible.
Witnesses whose testimony is to be
taken shall be sworn, or shall affirm,
before their testimony shall be deemed
evidence in the proceeding or any
questions are put to them.
(b) Documentary material—(1)
General. Documents and detailed data
and information shall be presented as
exhibits. Exhibits should be selfexplanatory. They should contain
appropriate footnotes or narrative
explaining the source of each item of
information used and the methods
employed in statistical compilations.
The principal title of each exhibit
should state what it contains or
represents. The title may also contain a
statement of the purpose for which the
exhibit is offered; however, this
statement will not be considered part of
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
the evidentiary record. Where one part
of a multi-part exhibit is based on
another part or on another exhibit,
appropriate cross-references should be
made. Relevant exposition should be
included in the exhibits or provided in
accompanying testimony. Testimony,
exhibits and supporting workpapers
prepared for Commission proceedings
that are premised on data or conclusions
developed in a library reference shall
provide the location of that information
within the library reference with
sufficient specificity to permit ready
reference, such as the page and line, or
the file and the worksheet or
spreadsheet page or cell. Where relevant
and material matter offered in evidence
is embraced in a document containing
other matter not material or relevant or
not intended to be put in evidence, the
party offering the same shall plainly
designate the matter offered excluding
the immaterial or irrelevant parts. If
other matter in such document is in
such bulk or extent as would
unnecessarily encumber the record, it
may be marked for identification, and,
if properly authenticated, the relevant
and material parts may be read into the
record, or, if the Commission or
presiding officer so directs, a true copy
of such matter in proper form shall be
received in evidence as an exhibit.
Copies of documents shall be delivered
by the party offering the same to the
other parties or their attorneys
appearing at the hearing, who shall be
afforded an opportunity to examine the
entire document and to offer in
evidence in like manner other material
and relevant portions thereof.
(2) Status of library references.
Designation of material as a library
reference and acceptance in the
Commission’s docket section do not
confer evidentiary status. The
evidentiary status of the material is
governed by § 3010.321(g)(3).
(c) Commission’s files. Except as
otherwise provided in paragraph (e) of
this section, any matter contained in a
report or other document on file with
the Commission may be offered in
evidence by specifying the report,
document, or other file containing the
matter so offered and the report or other
document need not be produced or
marked for identification.
(d) Public document items. Whenever
there is offered in evidence (in whole or
in part) a public document, such as an
official report, decision, opinion or
published scientific or economic
statistical data issued by any of the
Executive Departments (or their
subdivisions), legislative agencies or
committees, or administrative agencies
of the Federal Government (including
PO 00000
Frm 00024
Fmt 4701
Sfmt 4700
Government-owned corporations) and
such document (or part thereof) has
been shown by the offeror thereof to be
reasonably available to the public, such
document need not be produced or
physically marked for identification, but
may be offered in evidence as a public
document item by clearly identifying
the document and the relevant parts
thereof.
(e) Designation of evidence from other
Commission dockets. (1) Parties may
request that evidence received in other
Commission proceedings be entered
into the record of the current
proceeding. These requests shall be
made by motion, shall explain the
purpose of the designation, and shall
identify material by page and line or
paragraph number.
(2) In proceedings to consider the
appeal of a Postal Service determination
to close or consolidate a post office
conducted pursuant to part 3021 of this
chapter, these requests must be made at
least six days before the date for filing
the party’s direct case. Oppositions to
motions for designations and/or
requests for counter-designations shall
be filed within three days. Oppositions
to requests for counter-designations are
due within two days.
(3) In all other proceedings subject to
this section, these requests must, in the
absence of extraordinary circumstances,
be made at least 28 days before the date
for filing the party’s direct case.
Oppositions to motions for designations
and/or requests for counter-designations
shall be filed within 14 days.
Oppositions to requests for counterdesignations are due within seven days.
(4) In all proceedings subject to this
section, the moving party must submit
two copies of the identified material to
the Secretary at the time requests for
designations and counter-designations
are made.
(f) Form of prepared testimony and
exhibits. Unless the presiding officer
otherwise directs, the direct testimony
of witnesses shall be reduced to writing
and offered either as such or as an
exhibit. All prepared testimony and
exhibits of a documentary character
shall, so far as practicable, conform to
the requirements of § 3010.124(a) and
(b).
(g) Copies to parties. Except as
otherwise provided in these rules,
copies of exhibits shall be furnished to
the presiding officer and to the parties
or counsel during a hearing, unless the
presiding officer otherwise directs.
(h) Reception and ruling. The
presiding officer shall rule on the
admissibility of evidence and otherwise
control the reception of evidence so as
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
to confine it to the issues in the
proceeding.
(i) Offers of proof. Any offer of proof
made in connection with any ruling of
the presiding officer rejecting or
excluding proffered oral testimony shall
consist of a statement of the substance
of the evidence which counsel contends
would be adduced by such testimony;
and if the excluded evidence consists of
evidence in documentary or written
form, or of reference to documents or
records, a copy of such evidence shall
be marked for identification and shall
constitute the offer of proof.
(j) Official notice of facts. Official
notice may be taken of such matters as
might be judicially noticed by the courts
of the United States or of any other
matter peculiarly within the knowledge
of the Commission as an expert body.
Any party shall, on timely request, be
afforded an opportunity to show the
contrary.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.323 Evidence—introduction and
reliance upon studies and analyses.
(a) Statistical studies. All statistical
studies offered in evidence in hearing
proceedings or relied upon as support
for other evidence shall include a
comprehensive description of the
assumptions made, the study plan
utilized, the procedures undertaken,
and references from the academic
literature supporting the procedures
undertaken. Machine-readable data
files, program files, workbooks, and all
other necessary materials to enable
independent replication of the results or
program output if requested by the
Commission or parties shall be provided
in the form of a compact disk or other
media or method approved in advance
by the Secretary. Where a computer
analysis is employed to obtain the result
of a statistical study, all of the
submissions required by paragraph (b)
of this section shall be furnished, upon
request. In addition, for each of the
following types of statistical studies, the
following information should be
provided:
(1) Market research. The following
information shall be provided:
(i) A clear and detailed description of
the sample, observational, and data
preparation designs, including
definitions of the target population,
sampling frame, units of analysis,
questionnaires or data collection
instruments, survey variables, and the
possible values;
(ii) An explanation of methodology
for the production and analysis of the
major survey estimates and associated
sampling errors;
(iii) A presentation of response,
coverage and editing rates, and any
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
other potential sources of error
associated with the survey’s quality
assurance procedures;
(iv) A discussion of data
comparability over time and with other
data sources;
(v) A complete description and
assessment of the effects of all editing
and imputation employed;
(vi) Identification of all applicable
statistical models considered and the
reasons the model based procedures
and/or models were selected over other
models or procedures, when modelbased procedures are employed; and
(vii) An explanation of all statistical
tests performed and an appropriate set
of summary statistics summarizing the
results of each test.
(2) Other sample surveys. The
following information shall be provided:
(i) A clear description of the survey
design, including the definition of the
universe under study, the sampling
frame and units, and the validity and
confidence limits that can be placed on
major estimates; and
(ii) An explanation of the method of
selecting the sample and the
characteristics measured or counted.
(3) Experimental analyses. The
following information shall be provided:
(i) A complete description of the
experimental design, including a
specification of the controlled
conditions and how the controls were
realized; and
(ii) A complete description of the
methods of making observations and the
adjustments, if any, to observed data.
(4) Econometric studies. The
following information shall be provided:
(i) A presentation of the economic
theory and assumptions underlying the
study;
(ii) A complete description of the
econometric model(s) and the reasons
for each major assumption and
specification;
(iii) The definition of the variables
selected and the justification for their
selection;
(iv) For any alternative model whose
computed econometric results
influenced the choice of the preferred
model, a statement of the reasons for
rejecting that alternative, an
identification of any differences
between that alternative and the
preferred model with respect to variable
definitions, equation forms, data, or
estimation methods, and, upon request,
the computed econometric results for
that alternative;
(v) A reference to a detailed
description in a text, manual, or
technical journal for every econometric
technique used in the estimation
process and the reasons for selecting the
PO 00000
Frm 00025
Fmt 4701
Sfmt 4700
9637
technique, or, in the alternative, a
description and analysis of the
technique that is sufficient for a
technical evaluation;
(vi) Summary descriptions and source
citations for all input data and, upon
request, a complete listing of the data.
Complete descriptions of any
alterations, adjustments, or
transformations made to the data as
received from the original sources, and
the reasons for making the alterations,
adjustments, or transformations;
(vii) A complete report of the
econometric results including, where
applicable coefficient estimates,
standard errors and t-values, goodnessof-fit statistics, other appropriate test
statistics, the variance/covariance
matrix of the estimates, and computed
residuals for results computed from
samples composed of fewer than 250
observations, and, upon request, other
computed residuals; and
(viii) Descriptions of all statistical
tests of hypotheses and the results of
such tests.
(5) All other studies involving
statistical methodology. The following
information shall be provided:
(i) The formula used for statistical
estimates;
(ii) The standard errors of each
component estimated;
(iii) Test statistics and the description
of statistical tests and all related
computations, and final results; and
(iv) Summary descriptions of input
data, and upon request the actual input
data shall be made available at the
offices of the Commission.
(b) Computer analyses. (1) In the case
of computer studies or analyses which
are being offered in evidence, or relied
upon as support for other evidence, a
foundation for the reception of such
materials must be laid by furnishing a
general description of the program that
includes the objectives of the program,
the processing tasks performed, the
methods and procedures employed, and
a listing of the input and output data
and source codes (or a showing
pursuant to paragraph (b)(3) of this
section as to why such codes cannot be
so furnished) and such description shall
be furnished in all cases. For the
purpose of completing such foundation,
the following additional items shall be
deemed presumptively necessary and
shall be furnished upon request of a
party, the Commission, or the presiding
officer, unless the presumption is
overcome by an affirmative showing.
The following information shall be
provided:
(i) For all input data, designations of
all sources of such data, and
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
9638
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
explanations of any modifications to
such data made for use in the program;
(ii) Definitions of all input and output
variables or sets of variables;
(iii) A description of input and output
data file organization;
(iv) For all source codes,
documentation sufficiently
comprehensive and detailed to satisfy
generally accepted software
documentation standards appropriate to
the type of program and its intended use
in the proceeding;
(v) All pertinent operating system and
programming language manuals;
(vi) If the requested program is user
interactive, a representative sample run,
together with any explanation necessary
to illustrate the response sequence;
(vii) An expert on the design and
operation of the program shall be
provided at a technical conference to
respond to any oral or written questions
concerning information that is
reasonably necessary to enable
independent replication of the program
output; and
(viii) Computer simulation models
offered in evidence or relied upon as
support for other evidence, shall be
bound by all applicable provisions of
this paragraph (b) and the separate
requirements of paragraph (a) of this
section, to the extent that portions of the
simulation model utilize or rely upon
such studies. Information that compares
the simulation model output results to
the actual phenomena being modelled,
using data other than those from which
the model was developed, shall be
separately identified and submitted as
evidence supporting the test and
validation of the simulation model.
Separate statements concerning the
model limitations, including limiting
model design assumptions and range of
data input utilized in model design,
shall be provided. Where test and
validation of the entire simulation
model are not possible, test and
validation information shall be provided
for disaggregate portions of the model.
If disaggregate testing and validation are
not possible, separate statements to that
effect and statements regarding
operational experts’ review of model
validity shall be provided.
(2) Upon timely and otherwise proper
request of a party, or sua sponte, the
Commission or the presiding officer
may rule that matters other than those
listed in paragraphs (b)(1)(i) through
(viii) of this section are necessary to
establish the foundation for reception of
the evidence concerned and must be
furnished.
(3) When the requestor is other than
the Commission or the presiding officer,
the cost of producing the material
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
required in paragraphs (b)(1)(iv), (vi),
and (vii) of this section, shall be borne
by the requesting party unless otherwise
ordered, for good cause shown by the
requestor. When the Commission or the
presiding officer is the requestor, it may
assume or equitably allocate such costs
for good cause shown by the requester.
(4) If the recipient of a request for
materials pursuant to this paragraph (b)
asserts that compliance with the request
would conflict with patent, copyright,
trade secret or contract rights applicable
to the requested material, the recipient
shall immediately notify the requestor
and the presiding officer. If valid, the
presiding officer shall devise means of
accommodating such rights. Such
means may include protective orders,
including access under protective
conditions to the computer facilities of
the recipient of a request, making
material available for inspection,
compensation, or other procedures,
according to the nature of the right
affected by compliance with this
paragraph (b). If the presiding officer
determines that compensation is
necessary to accommodate the affected
right, the cost of compensation shall be
borne in the same manner that
paragraph (b)(3) of this section
prescribes for bearing the costs
referenced there. If such right cannot be
accommodated by reasonable
compensation, or by protective orders or
other procedures, and, as a result,
materials required by this paragraph (b)
cannot be provided, the presiding
officer shall determine, in the presiding
officer’s discretion, whether evidence
that relies upon the materials not
provided shall be admissible or afforded
limited weight.
(c) Other studies and analyses. In the
case of all studies and analyses offered
in evidence in hearing proceedings or
relied upon as support for other
evidence, other than the kinds described
in paragraphs (a) and (b) of this section,
there shall be a clear statement of the
study plan, all relevant assumptions and
a description of the techniques of data
collection, estimation and/or testing. In
addition, there shall be a clear statement
of the facts and judgments upon which
conclusions are based, together with an
indication of the alternative courses of
action considered and the steps taken to
ensure the validity, accuracy, and
reliability of the evidence. Tabulations
of input data, workbooks, and all other
materials necessary to replicate results
shall be made available upon request at
the offices of the Commission.
(d) Expedition. The party who offers
studies or analyses in evidence shall
expedite responses to requests made
pursuant to this section for data or other
PO 00000
Frm 00026
Fmt 4701
Sfmt 4700
information. Responses shall be served
on the requesting party, and notice
thereof filed with the Secretary in
accordance with the provisions of
§ 3010.127 no later than 3 days after a
request is made under § 3010.322(e)(2)
or no later than 14 days after a request
is made under § 3010.322(e)(3).
§ 3010.324
In camera orders.
(a) Definition. Except as hereinafter
provided, documents and testimony
made subject to in camera orders are not
made a part of the public record, but are
kept confidential, and only authorized
parties, their counsel, authorized
Commission personnel, and court
personnel concerned with judicial
review shall have access thereto. The
right of the presiding officer, the
Commission, and reviewing courts to
disclose in camera data to the extent
necessary for the proper disposition of
the proceeding is specifically reserved.
(b) In camera treatment of documents
and testimony. (1) Presiding officers
shall have authority, but only in those
unusual and exceptional circumstances
when good cause is found on the record,
to order documents or oral testimony
offered in evidence whether admitted or
rejected, to be placed in camera. The
order shall specify the date on which in
camera treatment expires and shall
include:
(i) A description of the documents
and testimony;
(ii) A full statement of the reasons for
granting in camera treatment; and
(iii) A full statement of the reasons for
the date on which in camera treatment
expires.
(2) Any party desiring, for the
preparation and presentation of the
case, to disclose in camera documents
or testimony to experts, consultants,
prospective witnesses, or witnesses,
shall make application to the presiding
officer setting forth the justification
therefor. The presiding officer, in
granting such application for good cause
found, shall enter an order protecting
the rights of the affected parties and
preventing unnecessary disclosure of
information. In camera documents and
the transcript of testimony subject to an
in camera order shall be segregated from
the public record and filed in a sealed
envelope, bearing the title and docket
number of the proceeding, the notation
‘‘In Camera Record under § 3010.323,’’
and the date on which in camera
treatment expires.
(c) Release of in camera information.
In camera documents and testimony
shall constitute a part of the confidential
records of the Commission. However,
the Commission, on its own motion or
pursuant to a request, may make in
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
camera documents and testimony
available for inspection, copying, or use
by any other governmental agency. The
Commission shall, in such
circumstances, give reasonable notice of
the impending disclosure to the affected
party. However, such notice may be
waived in extraordinary circumstances
for good cause.
(d) Briefing of in camera information.
In the submittal of proposed findings,
briefs, or other papers, counsel for all
parties shall make a good faith attempt
to refrain from disclosing the specific
details of in camera documents and
testimony. This shall not preclude
references in such proposed findings,
briefs, or other papers to such
documents or testimony including
generalized statements based on their
contents. To the extent that counsel
consider it necessary to include specific
details of in camera data in their
presentations, such data shall be
incorporated in separate proposed
findings, briefs, or other papers marked
‘‘confidential,’’ which shall be placed in
camera and become a part of the in
camera record.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.325
Depositions.
(a) When permissible. The testimony
of a witness may be taken by deposition
when authorized by the Commission or
the presiding officer on application of
any party before the hearing is closed.
An authorization to take the deposition
of a witness will be issued only if:
(1) The person whose deposition is to
be taken would be unavailable at the
hearing;
(2) The deposition is deemed
necessary to perpetuate the testimony of
the witness; or
(3) The taking of the deposition is
necessary to prevent undue and
excessive expense to a party and will
not result in undue delay or an undue
burden to other parties.
(b) Application. An application for
authorization to take testimony by
deposition shall be filed with the
Commission or the presiding officer and
shall state:
(1) The name, identification, and post
office address of the witness;
(2) The subject matter of the
testimony.
(3) The time and place of taking the
deposition;
(4) The name, identification, and post
office address of the officer before
whom the deposition is to be taken; and
(5) The reasons why the testimony of
such witness should be taken by
deposition.
(c) Authorization. If the application so
warrants, the Commission or the
presiding officer will issue and serve or
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
cause to be served on the parties within
a reasonable time in advance of the time
fixed for taking testimony, an
authorization for the taking of such
testimony by deposition. Such
authorization shall name the witness,
the time, place, and officer before whom
the deposition shall be taken, and shall
specify the number of copies of the
deposition to be submitted to the
Commission. The authorization may
include such terms and conditions as
the Commission or the presiding officer
deems fair and reasonable.
(d) Qualifications of officer before
whom taken. Such deposition may be
taken before a presiding officer or other
authorized representative of the
Commission, or any officer, not being
counsel or attorney for any party or
having an interest in the proceeding,
authorized to administer oaths by the
laws of the United States or of the place
where the deposition is to be taken.
(e) Oath and reduction to writing. The
officer before whom the deposition is to
be taken shall put the witness on oath
or affirmation and shall personally, or
by someone acting under the officer’s
direction and in the officer’s presence,
record the examination of the witness.
The examination shall be transcribed in
the form specified in § 3010.124(a),
signed by the witness, and certified in
the usual form by the officer. The
original of the deposition, together with
the number of copies required by the
authorization to be made by such
officer, shall be forwarded by the officer
to the Secretary by personal delivery or
registered mail. Upon receipt, the
Secretary shall hold the original for use
in the hearing upon request by any party
and shall make copies available for
public inspection.
(f) Scope and conduct of examination.
Unless otherwise directed in the
authorization, the witness may be
questioned regarding any matter which
is relevant to the issues involved in the
proceeding. Parties shall have the right
for cross-examination and objection. In
lieu of participation in the oral
examination, parties may transmit
written interrogatories to the officer who
shall propound them to the witness.
(g) Objections. The officer before
whom the deposition is taken shall not
have the power to rule upon procedural
matters or the competency, materiality,
or relevancy of questions. Procedural
objections or objections to questions of
evidence shall be stated briefly and
recorded in the deposition without
argument. Objections not stated before
the officer shall be deemed waived.
(h) When a part of the record. No
portion of a deposition shall constitute
a part of the record in the proceeding
PO 00000
Frm 00027
Fmt 4701
Sfmt 4700
9639
unless received in evidence by the
presiding officer. If only a portion of the
deposition is offered in evidence by a
party, any other party may require the
party to introduce all of it which is
relevant to the part introduced, and any
party may offer in evidence any other
portions.
(i) Fees. Witnesses whose depositions
are taken and the officer taking the same
shall be entitled to the same fees as are
paid for like services in the District
Courts of the United States to be paid
directly by the party or parties on whose
application the deposition was taken.
§ 3010.330
Briefs.
(a) When filed. At the close of the
taking of testimony in any proceeding,
the Commission or the presiding officer
shall fix the time for the filing and
service of briefs, giving due regard to the
timely issuance of the decision. In
addition, subject to such consideration,
due regard shall be given to the nature
of the proceeding, the complexity and
importance of the issues involved, and
the magnitude of the record. In cases
subject to a limitation on the time
available to the Commission for
decision, the Commission may direct
each party to file its brief
simultaneously with the filing of briefs
by other parties. In cases where, because
of the nature of the issues and the
record or the limited number of parties
involved, the filing of initial and reply
briefs, or the filing of initial, answering,
and reply briefs, will not unduly delay
the conclusion of the proceeding and
will aid in the proper disposition of the
proceeding, the parties may be directed
to file more than one brief and at
different times rather than a single brief
filed simultaneously with briefs filed by
other parties. The Commission or
presiding officer may also order the
filing of briefs during the course of the
proceeding.
(b) Contents. Each brief filed with the
Commission shall be as concise as
possible, within any page limitation
specified by the Commission or the
presiding officer, and shall include the
following in the order indicated:
(1) A subject index with page
references, and a list of all cases and
authorities relied upon, arranged
alphabetically, with references to the
pages where the citation appears;
(2) A concise statement of the case
from the viewpoint of the filing party;
(3) A clear, concise, and definitive
statement of the position of the filing
party as to the matter before the
Commission and the decision to be
issued;
(4) A discussion of the evidence,
reasons, and authorities relied upon
E:\FR\FM\19FER2.SGM
19FER2
9640
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
with exact references to the record and
the authorities; and
(5) Proposed findings and conclusions
with appropriate references to the
record or the prior discussion of the
evidence and authorities relied upon.
(c) Incorporation by references. Briefs
before the Commission or a presiding
officer shall be completely selfcontained and shall not incorporate by
reference any portion of any other brief,
pleading, or document.
(d) Excerpts from the record.
Testimony and exhibits shall not be
quoted or included in briefs except for
short excerpts pertinent to the argument
presented.
(e) Filing and service. Briefs shall be
filed with the Commission and served
on all parties as required pursuant to
subpart B of this part.
§ 3010.331 Proposed findings and
conclusions.
The Commission or the presiding
officer may direct the filing of proposed
findings and conclusions with a brief
statement of the supporting reasons for
each proposed finding and conclusion.
§ 3010.332 Oral argument before the
presiding officer.
In any case in which the presiding
officer is to issue an intermediate
decision, such officer may permit the
presentation of oral argument when, in
the presiding officer’s opinion, time
permits, and the nature of the
proceedings, the complexity or
importance of the issues of fact or law
involved, and the public interest
warrants hearing such argument. The
presiding officer shall determine the
time and place for oral argument, and
may specify the issue or issues on
which oral argument is to be presented,
the order in which the presentations
shall be made, and the amount of time
allowed each party. A request for oral
argument before the issuance of an
intermediate decision shall be made
during the course of the hearing on the
record.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3010.333 Oral argument before the
Commission.
(a) When ordered. In any proceeding
before the Commission for decision, the
Commission, upon the request of any
party or on its own initiative, may order
oral argument when, in the
Commission’s discretion, time permits,
and the nature of the proceedings, the
complexity or importance of the issues
of fact or law involved, and public
interest warrants such argument.
(b) How requested. Any party in a
proceeding before the Commission for
decision may request oral argument
before the Commission by filing a timely
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
motion. In a proceeding before the
Commission on exceptions to an
intermediate decision, such motion
shall be filed no later than the date for
the filing of briefs on exceptions.
(c) Notice of oral argument. The
Commission shall rule on requests for
oral argument, and if argument is
allowed, the Commission shall notify
the parties of the time and place set for
argument, the amount of time allowed
each party, and the issue or issues on
which oral argument is to be heard.
Unless otherwise ordered by the
Commission, oral argument shall be
limited to matters properly raised on the
record and in the briefs before the
Commission.
(d) Use of documents at oral
argument. Charts, graphs, maps, tables,
and other written material may be
presented to the Commission at oral
argument only if limited to facts in the
record of the case being argued and if
copies of such documents are filed with
the Secretary and served on all parties
at least seven days in advance of the
argument. Enlargements of such charts,
graphs, maps, and tables may be used at
the argument provided copies are filed
and served as required by this
paragraph.
§ 3010.334
Commission decisions.
(a) At the conclusion of a proceeding
on the record with the opportunity for
a hearing, the Commission shall issue a
final decision which either:
(1) Adopts an intermediate decision
prepared by a presiding officer; or
(2) Rules upon the matters that are
before the Commission, or provides
explanation for why such rulings are not
being provided.
(b) Commission decisions shall be
based on the evidence entered into the
record, and consider the arguments filed
on brief. Argument provided in
comments may further inform the
Commission’s decision, but have no
evidentiary standing and are not
required to be addressed in the final
decision.
(c) An intermediate decision may be
adopted by the Commission in whole or
in part. When an intermediate decision
is adopted in part, the Commission shall
explain its decisions regarding both
what is and is not adopted.
(d) When exceptions, or objections to
exceptions, to an intermediate decision
are filed pursuant to § 3010.336 by any
party to the proceeding, the Commission
shall consider and rule upon such
exceptions, or objections to exceptions
in its final decision.
(e) Commission decisions shall be
filed in the docket and served on all
PO 00000
Frm 00028
Fmt 4701
Sfmt 4700
parties. Commission decisions shall be
part of the record of the proceeding.
§ 3010.335
Intermediate decisions.
(a) An intermediate decision shall be
issued by the presiding officer which
rules upon the matters that are before
the Commission, or provides
explanation for why such rulings are not
being provided, in a proceeding on the
record with the opportunity for a
hearing when:
(1) The Commission is not sitting en
banc; or
(2) The presiding office has been
directed to issue an intermediate
decision by Commission notice or order.
(b) Intermediate decisions shall be
based on the evidence entered into the
record, and shall consider the
arguments filed on brief. Arguments
provided in comments may further
inform the presiding officer’s decision,
but are not required to be addressed in
the intermediate decision.
(c) Intermediate decisions shall be
filed in the docket and served on all
parties. Intermediate decisions shall be
part of the record of the proceeding.
(d) Intermediate decisions are subject
to review by the Commission and
subject to challenge by parties to the
proceeding through the filing of
exceptions pursuant to § 3010.336. After
review and consideration of the
exceptions filed, intermediate decisions
may be adopted by the Commission, in
whole or in part, as part of the final
decision in the proceeding.
(e)(1) The Commission may, at any
time, direct the omission of an
intermediate decision and the
certification of the record for the
Commission’s consideration sitting en
banc. Parties to a proceeding may, by
motion, request the omission of an
intermediate decision and the
certification of the record for the
Commission’s consideration sitting en
banc. Motions shall specify:
(i) The concurrence of other parties;
and
(ii) Whether opportunity for filing
briefs or presenting oral argument to the
Commission is desired or waived.
(2) Failure of any party to object to
such request shall constitute a waiver of
any objections. Motions shall be filed no
later than the deadline for the filing of
briefs. In either instance, the decision to
omit an intermediate decision shall be
based upon the consideration of the
novelty of the matters before the
Commission, and the timely and
efficient operation of the docket.
§ 3010.336
decisions.
Exceptions to intermediate
(a) Briefs on exceptions and opposing
exceptions. Any party in a proceeding
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
may file exceptions to any intermediate
decision by first filing a notice of intent
to file a brief on exceptions with the
Commission within seven days after the
date of issuance of the intermediate
decision or such other time as may be
fixed by the Commission. The brief on
exceptions shall be filed with the
Commission within 30 days after the
date of issuance of the intermediate
decision or such other time as may be
fixed by the Commission. Any party to
a proceeding may file a response to
briefs on exceptions within 20 days after
the time limited for the filing of briefs
on exceptions or such other time as may
be fixed by the Commission. No further
response will be entertained unless the
Commission, upon motion for good
cause shown or on its own initiative, so
orders.
(b) Filing and contents. Briefs on
exceptions and briefs opposing
exceptions shall be filed in accordance
with § 3010.330. In briefs on exceptions,
the discussion of evidence, reasons and
authorities shall be specifically directed
to the findings, conclusions and
recommendations in the intermediate
decision to which exception is taken.
Briefs on exceptions should not include
a discussion of evidence and authorities
on matters and issues to which no
exception to the intermediate decision
is taken. Briefs on exceptions and briefs
opposing exceptions need not contain a
statement of the case to the extent that
it was correctly stated in either the
intermediate decision or the brief on
exceptions of another party to which
reference is made.
(c) Failure to except results in waiver.
Any party who fails to except or object
to any part of an intermediate decision
in its brief on exceptions may not
thereafter raise such exceptions or
objections which shall be deemed to
have been waived.
PART 3011—NON-PUBLIC MATERIALS
PROVIDED TO THE COMMISSION
44. The authority for newly
redesignated part 3011 continues to read
as follows:
■
Authority: 39 U.S.C. 503, 504.
45. Amend newly redesignated
§ 3011.101 by revising paragraph (a) to
read as follows:
■
khammond on DSKJM1Z7X2PROD with RULES2
§ 3011.101
Definitions.
(a) Non-public materials means any
documents or things that are provided
to the Commission and identified as
containing non-public information. The
Postal Service may claim that
information that would be exempt from
disclosure pursuant to 39 U.S.C. 410(c),
504(g), 3652(f), or 3654(f) is non-public
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
information. Any person other than the
Postal Service with a proprietary
interest in the materials may claim that
information that would be protectable
under Federal Rule of Civil Procedure
26(c) is non-public information. Any
person may claim that information that
is exempt from public disclosure under
5 U.S.C. 552(b) is non-public
information. Non-public materials cease
to be non-public if the status has
expired or has been terminated by the
Commission pursuant to this part.
Except as provided by § 3011.205, nonpublic materials cease to be non-public
if the submitter publicly discloses the
materials with the consent of each
affected person with a propriety interest
in the materials (if applicable). The
cessation of non-public status applies to
the particular document or thing and
the particular information contained
therein (in whole or in part, as
applicable).
*
*
*
*
*
■ 46. Amend newly redesignated
§ 3011.102 by revising paragraph (a) to
read as follows:
§ 3011.102
materials.
Treatment of non-public
(a) Except as described in part 3011 or
part 3006 of this chapter, the
Commission will neither disclose nor
grant access to any non-public materials
(and the non-public information
contained therein).
*
*
*
*
*
■ 47. Amend newly redesignated
§ 3011.103 by revising paragraphs (a)
and (c) to read as follows:
§ 3011.103 Commission action to
determine non-public treatment.
(a) Information requests as described
in § 3010.170 of this chapter,
preliminary notices, or interim orders
may be issued to help the Commission
determine the non-public treatment, if
any, to be accorded to the materials
claimed by any person to be non-public.
*
*
*
*
*
(c) Upon its own motion, the
Commission may issue notice of its
preliminary determination concerning
the appropriate degree of protection, if
any, to be accorded to materials claimed
by any person to be non-public. A
response is due within seven calendar
days of issuance of the preliminary
determination, unless the Commission
otherwise provides. No reply to a
response shall be filed, unless the
Commission otherwise provides.
Pending the Commission’s resolution of
the preliminary determination,
information designated as non-public
will be accorded non-public treatment.
PO 00000
Frm 00029
Fmt 4701
Sfmt 4700
9641
The Commission will enter an order
determining what non-public treatment,
if any, will be accorded to the materials
after the response period described in
this paragraph has expired. The
determination of the Commission shall
follow the applicable standard
described in § 3011.104.
■ 48. Amend newly redesignated
§ 3011.200 by revising paragraph (a) to
read as follows:
§ 3011.200 General requirements for
submitting non-public materials and
seeking non-public treatment.
(a) Whenever providing non-public
materials to the Commission, the
submitter shall concomitantly provide
the following: An application for nonpublic treatment that clearly identifies
all non-public materials and describes
the circumstances causing them to be
submitted to the Commission in
accordance with § 3011.201, a redacted
(public) version of the non-public
materials in accordance with
§ 3011.202, and an unredacted (sealed)
version of the non-public materials in
accordance with § 3011.203.
*
*
*
*
*
■ 49. Amend newly redesignated
§ 3011.203 by revising paragraph (b) to
read as follows:
§ 3011.203 Unredacted version of the nonpublic materials.
*
*
*
*
*
(b) The Filing Online method that
results in posting a document that is
available to the public, which is
accessible through the Commission’s
website (https://www.prc.gov) described
under part 3010, subpart B of this
chapter may not be used to submit the
unredacted version of non-public
materials.
*
*
*
*
*
■ 50. Amend newly redesignated
§ 3011.205 by revising paragraphs (a)
through (c) introductory text and (c)(3)
to read as follows:
§ 3011.205 Non-public materials
inadvertently submitted publicly.
(a) Any filer or person with a
proprietary interest that discovers the
inclusion of materials that could have
been subject to a claim for non-public
treatment are contained within a public
filing made in accordance with subpart
B to part 3010 of this chapter shall
telephone Dockets personnel
immediately to request that the nonpublic materials be removed from the
publicly available materials. Upon
receipt of that telephone request,
Dockets personnel will remove from the
publicly available materials those
materials for which non-public
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
9642
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
treatment are being requested until the
end of the next business day in order to
provide the filer or person with a
proprietary interest an opportunity to
file an application for non-public
treatment and the non-public materials
in accordance with the requirements of
this subpart. If any filer makes repeated
use of this rule, the Secretary has
discretion to impose additional
requirements on this filer as necessary
to ensure secure filing of non-public
materials.
(b) Any submitter or person with a
proprietary interest that discovers the
inclusion of materials that could have
been subject to a claim for non-public
treatment are contained within a
publicly available submission made to
the Commission in circumstances other
than through a public filing made in
accordance with subpart B to part 3010
of this chapter shall telephone the
Commission personnel to whom the
submission was directed immediately to
request that the non-public materials be
removed from the publicly available
materials. Upon receipt of that
telephone request, the Commission
personnel will remove from the publicly
available materials those materials for
which non-public treatment are being
requested until the end of the next
business day in order to provide the
submitter or person with a proprietary
interest an opportunity to submit an
application for non-public treatment
and the non-public materials in
accordance with the requirements of
this subpart. If any submitter makes
repeated use of this rule, the Secretary
has discretion to impose additional
requirements on this submitter as
necessary to ensure secure submission
of non-public materials.
(c) An application for non-public
treatment made under paragraph (a) or
(b) of this section shall also clearly
indicate if any special relief is sought.
Examples of special relief include a
request that any person not granted
access to the materials under § 3011.300
or § 3011.301 perform any or all of the
following actions:
*
*
*
*
*
(3) Take reasonable steps to retrieve
any materials, and the information
contained therein, that are claimed to be
non-public and were disclosed to any
person not granted access to the
materials under § 3011.300 or
§ 3011.301 prior to the submission of
application for non-public treatment.
51. Amend newly redesignated
§ 3011.300 by revising paragraphs (a)
and (c) to read as follows:
■
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
§ 3011.300 Eligibility for access to nonpublic materials.
(a) The following persons may access
non-public materials without an order
issued pursuant to § 3011.301(e):
*
*
*
*
*
(c) Any person not described in
paragraph (a) or (b) of this section may
request access to non-public materials
as described in § 3011.301, for the
purpose of aiding participation in a
pending Commission proceeding
(including compliance proceedings) or
aiding the initiation of a proceeding
before the Commission.
■ 52. Amend newly redesignated
§ 3011.301 by revising paragraphs (b)(4),
(c), and (e) to read as follows:
§ 3011.301
materials.
Motion for access to non-public
*
*
*
*
*
(b) * * *
(4) Specify if actual notice of the
motion has been provided to each
person identified in the application
pursuant to § 3011.201(b)(2). If the
motion states that actual notice has been
provided, the motion shall identify the
individual(s) to whom actual notice was
provided, the date(s) and approximate
time(s) of actual notice, the method(s) of
actual notice (by telephone
conversation, face-to-face conversation,
or an exchange of telephone or email
messages), and whether the movant is
authorized to represent that the motion
(in whole or in part) has been resolved
or is contested by the submitter or any
other affected person;
*
*
*
*
*
(c) Response. If actual notice of the
motion was provided in advance of the
filing to each person identified pursuant
to § 3011.201(b)(2) by telephone
conversation, face-to-face conversation,
or an exchange of telephone or email
messages, a response to the motion is
due within three business days of the
filing of the motion, unless the
Commission otherwise provides. In all
other circumstances, a response to the
motion is due within seven calendar
days of filing the motion, unless the
Commission otherwise provides.
*
*
*
*
*
(e) Commission ruling. The
Commission may enter an order at any
time after receiving a motion if the
movant states that actual notice has
been given to each person identified
pursuant to § 3011.201(b)(2) and that the
movant is authorized to represent that
the motion is uncontested. In all other
circumstances, the Commission will
enter an order determining if access will
be granted after the response period
described in paragraph (c) of this
PO 00000
Frm 00030
Fmt 4701
Sfmt 4700
section has expired. If no opposition to
the motion has been filed by the
submitter or any person other than the
submitter with a proprietary interest
before the expiration of the response
period described in paragraph (c) of this
section, the Commission may issue an
order granting access, subject to the
agreed protective conditions. In
determining whether to grant access to
non-public materials, the Commission
shall balance the interests of the parties
consistent with the analysis undertaken
by a Federal court when applying the
protective conditions appearing in
Federal Rule of Civil Procedure 26(c). If
access is granted, access shall
commence following the issuance of the
appropriate order setting forth all
protective conditions.
53. Revise newly redesignated
§ 3011.302 to read as follows:
■
§ 3011.302 Non-dissemination, use, and
care of non-public materials.
(a) No person who has been granted
access to non-public materials in
accordance with § 3011.300 or
§ 3011.301 may disseminate the
materials or the information contained
therein, in whole or in part, to any
person not allowed access pursuant to
§ 3011.300 or § 3011.301.
(b) Persons with access to non-public
materials under § 3011.300 or
§ 3011.301 shall use non-public
materials only for the purposes for
which the non-public materials are
supplied.
(c) Persons with access to non-public
materials under § 3011.300 or
§ 3011.301 shall protect the non-public
materials from any person not granted
access under § 3011.300 or § 3011.301
by using the same degree of care, but no
less than a reasonable degree of care, to
prevent the unauthorized disclosure of
these materials as those persons, in the
ordinary course of business, would be
expected to use to protect their own
proprietary material or trade secrets and
other internal, confidential,
commercially sensitive, and privileged
information.
54. Amend newly redesignated
§ 3011.303 by revising paragraph (a)
introductory text to read as follows:
■
§ 3011.303 Sanctions for violating
protective conditions.
(a) If a person who has been granted
access to non-public materials under
§ 3011.301 violates the terms of the
order granting access, the Commission
may impose sanctions on the person
who violated the order, the persons or
entities on whose behalf the person was
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
acting, or both. The sanctions may
include any or all of the following:
*
*
*
*
*
■ 55. Amend newly redesignated
§ 3011.304 by revising paragraphs (a)(1)
and (b) to read as follows:
§ 3011.304 Termination and amendment of
access to non-public materials.
(a) * * *
(1) Except as provided in paragraph
(b) of this section, access to non-public
materials granted under § 3011.301
terminates either when the Commission
issues the final order or report
concluding the proceeding(s) in which
the participant who filed the motion
seeking access represented that the nonpublic materials would be used, or
when the person granted access
withdraws or is otherwise no longer
involved in the proceeding(s),
whichever occurs first. For purposes of
this paragraph, an order or report is not
considered final until after the
possibility of judicial review expires
(including the completion of any
Commission response to judicial review,
if applicable).
*
*
*
*
*
(b) Amendment of access. Any person
may file a motion seeking to amend any
protective conditions related to access
of non-public materials, including
extending the timeframe for which
access is granted or expanding the
persons to whom access is to be granted,
in accordance with § 3011.301.
■ 56. Amend newly redesignated
§ 3011.305 by revising paragraph (a) to
read as follows:
khammond on DSKJM1Z7X2PROD with RULES2
§ 3011.305 Producing non-public materials
in non-Commission proceedings.
(a) If a court or other administrative
agency issues a subpoena or orders
production of non-public materials that
a person obtained under protective
conditions ordered by the Commission,
the target of the subpoena or order shall,
within two days of receipt of the
subpoena or order, notify each person
identified pursuant to § 3011.201(b)(2)
of the pendency of the subpoena or
order to allow time to object to that
production or to seek a protective order
or other relief.
*
*
*
*
*
■ 57. Revise the newly redesignated
appendix A to subpart C of part 3011 to
read as follows:
Appendix A to Subpart C of Part 3011—
Template Forms Protective Conditions
Statement
llllll (name of submitter of nonpublic materials) requests confidential
treatment of non-public materials identified
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
as llll (non-confidential description of
non-public materials) (hereinafter ‘‘these
materials’’) in Commission Docket No(s).
llll (designation of docket(s) in which
these materials were filed).
llllll (name of participant filing
motion) (hereinafter ‘‘the movant’’) requests
access to these materials related to llll
(designation of docket(s) or description of
proposed proceeding(s) in which these
materials are to be used) (hereinafter ‘‘this
matter’’).
The movant has provided to each person
seeking access to these materials:
Æ This Protective Conditions Statement;
Æ the Certification to Comply with
Protective Conditions;
Æ the Certification of Compliance with
Protective Conditions and Termination of
Access; and
Æ the Commission’s rules applicable to
access to non-public materials filed in
Commission proceedings (subpart C of part
3011 of the U.S. Code of Federal
Regulations).
Each person (and any individual working
on behalf of that person) seeking access to
these materials has executed a Certification
to Comply with Protective Conditions by
signing in ink or by typing/s/before his or her
name in the signature block. The movant
attaches the Protective Conditions Statement
and the executed Certification(s) to Comply
with Protective Conditions to the motion for
access filed with the Commission.
The movant and each person seeking
access to these materials agree to comply
with the following protective conditions:
In accordance with 39 CFR 3011.303, the
Commission may impose sanctions on any
person who violates these protective
conditions, the persons or entities on whose
behalf the person was acting, or both.
2. In accordance with 39 CFR 3011.300(b),
no person involved in competitive decisionmaking for any individual or entity that
might gain competitive advantage from using
these materials shall be granted access to
these materials. Involved in competitive
decision-making includes consulting on
marketing or advertising strategies, pricing,
product research and development, product
design, or the competitive structuring and
composition of bids, offers or proposals. It
does not include rendering legal advice or
performing other services that are not
directly in furtherance of activities in
competition with an individual or entity
having a proprietary interest in the protected
material.
3. In accordance with 39 CFR 3011.302(a),
a person granted access to these materials
may not disseminate these materials in whole
or in part to any person not allowed access
pursuant to 39 CFR 3011.300(a) (Commission
and court personnel) or 3011.301 (other
persons granted access by Commission order)
except in compliance with:
a. Specific Commission order,
b. Subpart B of 39 CFR 3011 (procedure for
filing these materials in Commission
proceedings), or
c. 39 CFR 3011.305 (production of these
materials in a court or other administrative
proceeding).
PO 00000
Frm 00031
Fmt 4701
Sfmt 4700
9643
4. In accordance with 39 CFR 3011.302(b)
and (c), all persons granted access to these
materials:
a. Must use these materials only related to
this matter; and
b. must protect these materials from any
person not authorized to obtain access under
39 CFR 3011.300 or 3011.301 by using the
same degree of care, but no less than a
reasonable degree of care, to prevent the
unauthorized disclosure of these materials as
those persons, in the ordinary course of
business, would be expected to use to protect
their own proprietary material or trade
secrets and other internal, confidential,
commercially sensitive, and privileged
information.
5. The duties of each person granted access
to these materials apply to all:
a. Disclosures or duplications of these
materials in writing, orally, electronically, or
otherwise, by any means, format, or medium;
b. Excerpts from, parts of, or the entirety
of these materials;
c. Written materials that quote or contain
these materials; and
d. Revised, amended, or supplemental
versions of these materials.
6. All copies of these materials will be
clearly marked as ‘‘Confidential’’ and bear
the name of the person granted access.
7. Immediately after access has terminated
pursuant to 39 CFR 3011.304(a)(1), each
person (and any individual working on
behalf of that person) who has obtained a
copy of these materials must execute the
Certification of Compliance with Protective
Conditions and Termination of Access. In
compliance with 39 CFR 3011.304(a)(2), the
movant will attach the executed
Certification(s) of Compliance with
Protective Conditions and Termination of
Access to the notice of termination of access
filed with the Commission.
8. Each person granted access to these
materials consents to these or such other
conditions as the Commission may approve.
Respectfully submitted,
(signature of representative)
/s/ lllllllllllllllllll
(print name of representative)
(address line 1 of representative)
(address line 2 of representative)
(telephone number of representative)
(e-mail address of representative)
(choose the appropriate response)
Attorney/Non-Attorney Representative for
(name of the movant)
You may delete the instructional text to
complete this form. This form may be filed
as an attachment to the motion for access to
non-public materials under 39 CFR
3011.301(b)(5).
Certification To Comply With Protective
Conditions
llllll (name of submitter of nonpublic materials) requests confidential
treatment of non-public materials identified
as llll (non-confidential description of
non-public materials) (hereinafter ‘‘these
materials’’) filed in Commission Docket
No(s). llll (designation of docket(s) in
which these materials were filed).
E:\FR\FM\19FER2.SGM
19FER2
9644
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES2
llllll (name of participant filing
motion) requests that the Commission grant
me access to these materials to use related to
llll (designation of docket(s) or
description of proposed proceeding(s) in
which these materials are to be used)
(hereinafter ‘‘this matter’’).
I certify that:
Æ I have read and understand the
Protective Conditions Statement and this
Certification to Comply with Protective
Conditions;
Æ I am eligible to receive access to these
materials because I am not involved in
competitive decision-making for any
individual or entity that might gain
competitive advantage from using these
materials; and
Æ I will comply with all protective
conditions established by the Commission.
(signature of individual receiving access)
/s/ lllllllllllllllllll
(print name of individual receiving access)
(title of individual receiving access)
(employer of individual receiving access)
(name of the participant filing the motion)
(date)
You may delete the instructional text to
complete this form. This form may be filed
as an attachment to the motion for access to
non-public materials under 39 CFR
3011.301(b)(6).
§ 3011.400 Motion for disclosure of nonpublic materials.
(a) Application of this section. This
section applies to non-public materials
during the initial duration of non-public
status, up to ten years, and any nonpublic materials for which the
Commission enters an order extending
the duration of that status under
§ 3011.401(a).
(b) Motion for disclosure of nonpublic materials. Any person may file a
motion with the Commission requesting
that non-public materials be publicly
disclosed. Any part of the motion
revealing non-public information shall
be filed in accordance with subpart B of
this part. The motion shall justify why
the non-public materials should be
made public and specifically address
any pertinent rationale(s) provided in
the application for non-public
treatment. The motion shall specify
whether actual notice of the motion has
been provided to each person identified
in the application pursuant to
§ 3011.201(b)(2). If the motion states
that actual notice has been provided, the
motion shall identify the individual(s)
to whom actual notice was provided,
the date(s) and approximate time(s) of
Certification of Compliance with Protective
actual notice, the method(s) of actual
Conditions and Termination of Access
notice (by telephone conversation, facellllll (name of submitter of nonto-face conversation, or an exchange of
public materials) requests confidential
telephone or email messages), and
treatment of non-public materials identified
as llll (non-confidential description of
whether the movant is authorized to
non-public materials) (hereinafter ‘‘these
represent that the motion (in whole or
materials’’) filed in Commission Docket
in part) has been resolved or is
No(s). llll (designation of docket(s) in
contested by the submitter or any other
which these materials were filed).
affected person. The motion shall be
The Commission granted the request by
llll (name of participant filing notice) to filed in the docket in which the
materials were filed or in the docket in
grant me access to these materials to use
which the materials will be used; in all
related to llll (designation of docket(s)
or description of proposed proceeding(s) in
other circumstances, the motion shall be
which these materials are to be used)
filed in the G docket for the applicable
(hereinafter ‘‘this matter’’).
fiscal year.
I certify that:
(c) Response. If actual notice of the
Æ I accessed, maintained, and used these
motion
was provided in advance of the
materials in accordance with the protective
filing to each person identified pursuant
conditions established by the Commission;
to § 3011.201(b)(2) by telephone
Æ Effective llll (date), my access to
conversation, face-to-face conversation,
these materials was terminated; and
Æ Effective llll (date), I no longer
or an exchange of telephone or email
have any of these materials or any duplicates. messages, a response to the motion is
(signature of individual granted access)
due within three business days of the
/s/ lllllllllllllllllll filing of the motion, unless the
Commission otherwise provides. In all
(print name of individual granted access)
other circumstances, a response to the
(title of individual granted access)
motion is due within seven calendar
(employer of individual granted access)
days of filing the motion, unless the
(name of participant filing notice)
Commission otherwise provides.
(date)
*
*
*
*
*
You may delete the instructional text to
(f) Commission ruling. The
complete this form. This form should be filed
Commission may enter an order at any
as an attachment to the notice of termination
of access to non-public materials under 39
time after receiving a motion if the
CFR 3011.304(a)(2).
movant states that actual notice has
been given to each person identified
■ 58. Amend newly redesignated
pursuant to § 3011.201(b)(2) and that the
§ 3011.400 by revising paragraphs (a)
movant is authorized to represent that
through (c) and (f) to read as follows:
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
PO 00000
Frm 00032
Fmt 4701
Sfmt 4700
the motion is uncontested. In all other
circumstances, the Commission will
enter an order determining what nonpublic treatment, if any, will be
accorded to the materials after the
response period described in paragraph
(c) of this section has expired. The
determination of the Commission shall
follow the applicable standard
described in § 3011.104.
■ 59. Amend newly redesignated
§ 3011.401 by revising paragraphs (c)
and (f) to read as follows:
§ 3011.401 Materials for which non-public
treatment has expired.
*
*
*
*
*
(c) Response. A response to the
request is due within seven calendar
days of the filing of the request, unless
the Commission otherwise provides.
Any response opposing the request shall
seek an extension of non-public status
by including an application for nonpublic treatment compliant with
§ 3007.201 of this chapter. This
extension application shall also include
specific facts in support of any assertion
that commercial injury is likely to occur
if the information contained in the
materials is publicly disclosed despite
the passage of ten years or the timeframe
established by Commission order.
*
*
*
*
*
(f) Ruling. The Commission may grant
the request at any time after the
response period described in paragraph
(c) of this section has expired. The
Commission may deny the request and
enter an order extending the duration of
non-public status at any time after the
reply period described in paragraph (d)
of this section has expired. The
determination of the Commission shall
follow the applicable standard
described in § 3011.104.
■ 60. Revise the newly redesignated
appendix A to subpart D of part 3011 to
read as follows:
Appendix A to Subpart D of Part
3011—Template Forms
Before the POSTAL REGULATORY
COMMISSION WASHINGTON, DC 20268–
0001
(Caption) llllllllllllllll
Docket No. lllllllllllllll
lllllllllllllllllllll
REQUEST FOR MATERIALS FOR WHICH
NON-PUBLIC TREATMENT HAS EXPIRED
llll , 20ll (date)
On llll (date non-public materials
were initially submitted), non-public
treatment was requested for the materials
identified as llll (non-confidential
description of non-public materials)
(hereinafter ‘‘these materials’’). Because the
non-public treatment of these materials has
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
expired, I request that these materials be
disclosed to the public.
Respectfully submitted,
(signature of representative)
/s/ lllllllllllllllllll
(print name of representative)
(address line 1 of representative)
(address line 2 of representative)
(telephone number of representative)
(e-mail address of representative)
(choose the appropriate response)
Attorney/Non-Attorney Representative for
(name of the requestor)
You may delete the instructional text to
complete this form and file a request under
39 CFR 3011.401(b).
PART 3012—EX PARTE
COMMUNICATIONS
61. The authority for newly
redesignated part 3012 continues to read
as follows:
■
Authority: 39 U.S.C. 404(d)(5); 503; 504;
3661(c); 3662.
62. Amend newly redesignated
§ 3012.1 by revising paragraph (c) to
read as follows:
■
§ 3012.1
Applicability.
*
*
*
*
*
(c) The rules in this section are not
applicable to international mail (IM)
proceedings undertaken pursuant to
part 3025 of this chapter.
*
*
*
*
*
■ 63. Amend newly redesignated
§ 3012.2 by revising paragraph (b)(3) to
read as follows:
§ 3012.2 Definition of ex parte
communications.
*
*
*
*
(b) * * *
(3) Communications during the course
of off-the-record technical conferences
associated with a matter before the
Commission, or the pre-filing
conference for nature of service cases
required by § 3020.111 of this chapter,
where advance public notice of the
event is provided indicating the matter
to be discussed, and the event is open
to all persons participating in the matter
before the Commission;
*
*
*
*
*
■ 64. Amend newly redesignated
§ 3012.4 by revising paragraph (d)(2) to
read as follows:
khammond on DSKJM1Z7X2PROD with RULES2
*
§ 3012.4 Definitions of persons subject to
ex parte communication rules.
*
*
*
*
*
(d) * * *
(2) Commission personnel not
participating in the decisional process
owing to the prohibitions of § 3010.144
of this chapter regarding no
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
participation by investigative or
prosecuting officers;
*
*
*
*
*
■ 65. Amend newly redesignated
§ 3012.7 by revising paragraphs (b) and
(c) to read as follows:
§ 3012.7 Penalty for violation of ex parte
communication rules.
*
*
*
*
*
(b) Upon notice of a communication
knowingly made or knowingly caused to
be made by a participant in violation of
§ 3012.5(a), the Commission or
presiding officer may, to the extent
consistent with the interests of justice
and the policy of the underlying
statutes, require the participant to show
cause why the participant’s claim or
interest in the proceeding should not be
dismissed, denied, disregarded, or
otherwise adversely affected on account
of such violation.
(c) The Commission may, to the
extent consistent with the interests of
justice and the policy of the underlying
statutes administered by the
Commission, consider a violation of
§ 3012.5(a) sufficient grounds for a
decision adverse to a party who has
knowingly committed such violation or
knowingly caused such violation to
occur.
PART 3013—PROCEDURES FOR
COMPELLING PRODUCTION OF
INFORMATION BY THE POSTAL
SERVICE
66. The authority for newly
redesignated part 3013 continues to read
as follows:
■
Authority: 39 U.S.C. 503; 504; 3651(c);
3652(d).
67. Amend newly redesignated
§ 3013.1 by revising paragraph (b) to
read as follows:
■
§ 3013.1 Scope and applicability of other
parts of this title.
*
*
*
*
*
(b) Subparts A, B, and D to part 3010
of this chapter apply unless otherwise
stated in this part or otherwise ordered
by the Commission.
■ 68. Amend newly redesignated
§ 3013.11 by revising paragraphs (d)(4)
and (e) to read as follows:
§ 3013.11
General rule—subpoenas.
*
*
*
*
*
(d) * * *
(4) That a trade secret or other
confidential research, development, or
commercial information not be revealed
or be revealed only in a designated way
as provided in part 3011 of this chapter;
and
*
*
*
*
*
PO 00000
Frm 00033
Fmt 4701
Sfmt 4700
9645
(e) Subpoenas shall be served in the
manner provided by § 3013.14.
■ 69. Amend newly redesignated
§ 3013.12 by revising paragraphs (a) and
(d) to read as follows:
§ 3013.12 Subpoenas issued without
receipt of a third-party request.
(a) A subpoena duly authorized by a
majority of the Commissioners then
holding office may be issued by the
Chairman, a designated Commissioner,
or an administrative law judge under
§ 3013.11 without a request having been
made by a third party under § 3013.13.
*
*
*
*
*
(d) Subpoenas issued under this
section shall be issued subject to the
right of the Postal Service and other
interested persons to file a motion
pursuant to § 3010.160(a) of this chapter
to quash the subpoena, to limit the
scope of the subpoena, or to condition
the subpoena as provided in
§ 3013.11(d). Such motion shall include
any objections to the subpoena that are
personal to the covered person
responsible for providing the
information being sought. Motions
alleging undue burden or cost must state
with particularity the basis for such
claims. Answers to the motion may be
filed by any interested person pursuant
to § 3010.160(b) of this chapter. Pending
the resolution of any such motion, the
covered person shall secure and
maintain the requested information.
■ 70. Amend newly redesignated
§ 3013.13 by revising paragraphs (a)
introductory text, (a)(2) through (4), (b)
introductory text, and (b)(1) and (2) to
read as follows:
§ 3013.13 Subpoenas issued in response
to a third-party request.
(a) Procedure for requesting and
issuing subpoenas when hearings have
been ordered. A participant in any
proceeding in which a hearing has been
ordered by the Commission may request
the issuance of a subpoena to a covered
person pursuant to § 3013.11.
*
*
*
*
*
(2) Requests for subpoenas under this
section shall be made by written motion
filed with the presiding officer in the
manner provided in § 3010.160 of this
chapter. The Postal Service shall
transmit a copy of the request to any
covered person that it deems likely to be
affected by the request and shall provide
the person requesting the subpoena with
the name, business address, and
business phone number of the persons
to whom the request has been
transmitted.
(3) Answers to the motion may be
filed by the Postal Service, by any
E:\FR\FM\19FER2.SGM
19FER2
9646
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES2
person to whom the Postal Service has
transmitted the request, and by any
other participant. Answers raising
objections, including allegations of
undue burden or cost, must state with
particularity the basis for such claims.
Answers shall be filed as required by
§ 3010.160(b) of this chapter.
(4) The presiding officer shall forward
copies of the motion and any responses
to the Commission together with a
recommendation of whether or not the
requested subpoena should be issued
and, if so, the scope and content thereof
and conditions, if any, that should be
placed on the subpoena. Copies of the
presiding officer’s recommendation
shall be served in accordance with
§ 3010.127 of this chapter.
*
*
*
*
*
(b) Procedure for requesting and
issuing subpoenas when no hearings
have been ordered. Any person may
request the issuance of a subpoena to a
covered person pursuant to § 3013.11 to
enforce an information request issued
by the Commission or a Commissioner
even though no hearings have been
ordered by the Commission.
(1) A request for the issuance of a
subpoena shall be made by motion as
provided by § 3010.160 of this chapter.
A copy of the request shall be served
upon the Postal Service as provided by
§ 3010.127 of this chapter and by
forwarding a copy to the General
Counsel of the Postal Service, or such
other person authorized to receive
process by personal service, by Express
Mail or Priority Mail, or by First-Class
Mail, Return Receipt requested. The
Postal Service shall transmit a copy of
the request to any covered person that
it deems likely to be affected by the
request and shall provide the person
requesting the subpoena with the name,
business address and business phone
number of the persons to whom the
request has been transmitted. Proof of
service of the request shall be filed with
the Secretary by the person requesting
the subpoena. The Secretary shall issue
a notice of the filing of proof of service
and the deadline for filing answers to
the request.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(2) Answers to the motion may be
filed by the Postal Service, by any
person to whom the Postal Service has
transmitted the request, and by any
other person. Answers raising
objections, including allegations of
undue burden or cost, must state with
particularity the basis for such claims.
Answers shall be filed as required by
§ 3010.160(b) of this chapter.
*
*
*
*
*
■ 71. Amend newly redesignated
§ 3013.14 by revising paragraphs (a)(1),
(2), and (4), (b)(1) introductory text, and
(b)(2) introductory text to read as
follows:
§ 3013.14
Service of subpoenas.
(a) * * *
(1) Existing Postal Service officers and
employees. In addition to electronic
service as provided by § 3010.127(a) of
this chapter, subpoenas directed to
existing Postal Service officers and
employees must be served by personal
service upon the General Counsel of the
Postal Service or upon such other
representative of the Postal Service as is
authorized to receive process. Upon
receipt, the subpoena shall be
transmitted and delivered by the Postal
Service to the existing officers and
employees responsible for providing the
information being sought by the
subpoena. Subpoenas served upon the
Postal Service and transmitted to Postal
Service officers and employees shall be
accompanied by a written notice of the
return date of the subpoena.
(2) Existing Postal Service agents and
contractors. In addition to electronic
service as provided by § 3010.127(a) of
this chapter, subpoenas directed to
existing Postal Service agents and
contractors must be served by personal
service upon the General Counsel of the
Postal Service or upon such other
representative of the Postal Service as is
authorized to receive process. Upon
receipt, the subpoena shall be
transmitted and delivered by the Postal
Service to existing agents and
contractors responsible for providing
the information being sought by the
subpoena. Service upon such agents and
PO 00000
Frm 00034
Fmt 4701
Sfmt 4700
contractors shall be accompanied by a
written notice of the return date of the
subpoena.
*
*
*
*
*
(4) Service arrangements.
Arrangements for service upon the
Postal Service under paragraph (a)(1) of
this section or upon former Postal
Service officers, employees, agents, or
contractors under paragraph (a)(3) of
this section shall be arranged either by
the Commission or by the third party
who requested issuance of the
subpoena.
(b) * * *
(1) Return of service. Proof of service
under paragraph (a) of this section must
be filed with the Secretary within two
business days following service, unless
a shorter or longer period is ordered by
the Commission, and must be
accompanied by certifications of:
*
*
*
*
*
(2) Proof of transmission. The Postal
Service shall within two business days
of transmission of a subpoena by the
Postal Service to an existing Postal
Service officer, employee, agent, or
contractor pursuant to paragraph (a)(1)
or (2) of this section, or such shorter or
longer period ordered by the
Commission, file with the Secretary a
certification of:
*
*
*
*
*
72. Amend newly redesignated
§ 3013.15 by revising paragraph (f) to
read as follows:
■
§ 3013.15 Duties in responding to a
subpoena.
*
*
*
*
*
(f) Request for confidential treatment
of information shall be made in
accordance with part 3011 of this
chapter.
73. Revise newly redesignated
appendix A to part 3013 to read as
follows:
■
Appendix A to Part 3013—Subpoena
Form
BILLING CODE 7710–FW–P
E:\FR\FM\19FER2.SGM
19FER2
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
PO 00000
Frm 00035
Fmt 4701
Sfmt 4725
E:\FR\FM\19FER2.SGM
19FER2
9647
ER19FE20.000</GPH>
khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
VerDate Sep<11>2014
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
18:20 Feb 18, 2020
Jkt 250001
PO 00000
Frm 00036
Fmt 4701
Sfmt 4725
E:\FR\FM\19FER2.SGM
19FER2
ER19FE20.001</GPH>
khammond on DSKJM1Z7X2PROD with RULES2
9648
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
74. Add a new part 3020 to read as
follows:
■
khammond on DSKJM1Z7X2PROD with RULES2
PART 3020—RULES APPLICABLE TO
POSTAL SERVICE REQUESTS FOR
CHANGES IN THE NATURE OF
POSTAL SERVICES
Sec.
3020.101 Applicability.
3020.102 Advisory opinion and special
studies.
3020.103 Computation of time.
3020.104 Service by the Postal Service.
3020.105 Motions.
3020.106–3020.109 [Reserved]
3020.110 Procedural schedule.
3020.111 Pre-filing requirements.
3020.112 Filing of formal requests.
3020.113 Contents of formal requests.
3020.114 Filing of prepared direct
evidence.
3020.115 Mandatory technical conference.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
3020.116 Discovery—in general.
3020.117 Interrogatories.
3020.118 Production of documents.
3020.119 Admissions.
3020.120 Rebuttal testimony.
3020.121 Surrebuttal testimony.
3020.122 Hearings.
3020.123 Initial and reply briefs.
Appendix A to Part 3020—Pro Forma N-Case
Procedural Schedule
Authority: 39 U.S.C. 404(d); 503; 504;
3661.
§ 3020.101
Applicability.
The rules in this part govern the
procedure with regard to proposals of
the Postal Service pursuant to 39 U.S.C.
3661 requesting from the Commission
an advisory opinion on changes in the
nature of postal services that will
generally affect service on a nationwide
or substantially nationwide basis. The
Rules of General Applicability in part
PO 00000
Frm 00037
Fmt 4701
Sfmt 4700
3010 of this chapter are also applicable
to proceedings conducted pursuant to
this subpart except that §§ 3010.160
through 3010.164 (Motions); § 3010.310
(Discovery—general policy); § 3010.311
(Interrogatories for purposes of
discovery); § 3010.312 (Requests for
production of documents or things for
the purpose of discovery); § 3010.321
(Hearings); § 3010.325 (Depositions);
and § 3010.330 (Briefs) of this chapter
do not apply in proceedings conducted
under this part.
§ 3020.102
studies.
Advisory opinion and special
(a) Issuance of opinion. In the absence
of a determination of good cause for
extension, the Commission shall issue
an advisory opinion in proceedings
conducted under this subpart not later
than 90 days following the filing of the
E:\FR\FM\19FER2.SGM
19FER2
ER19FE20.002</GPH>
BILLING CODE 7710–FW–C
9649
9650
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Postal Service’s request for an advisory
opinion.
(b) Special studies. Advisory opinions
shall address the specific changes
proposed by the Postal Service in the
nature of postal services. If, in any
proceeding, alternatives or related
issues of significant importance arise,
the Commission may, in its discretion,
undertake an evaluation of such
alternative or issues by means of special
studies, public inquiry proceedings, or
other appropriate means.
§ 3020.103
Computation of time.
In computing any period of time
prescribed or allowed by this subpart,
the term day means a calendar day
unless explicitly specified otherwise.
The last day of the period so computed
is to be included unless it is a Saturday,
Sunday, or Federal holiday for the
Commission, in which event the period
runs until the end of the next day which
is neither a Saturday, Sunday, nor
Federal holiday.
§ 3020.104
Service by the Postal Service.
By filing its request electronically
with the Commission, the Postal Service
is deemed to have effectively served
copies of its formal request and its
prepared direct evidence upon those
persons, including the officer of the
Commission, who participated in the
pre-filing conference held under
§ 3020.111. The Postal Service shall be
required to serve hard copies of its
formal request and prepared direct
evidence only upon those persons who
have notified the Postal Service, in
writing, during the pre-filing
conference(s), that they do not have
access to the Commission’s website.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3020.105
Motions.
(a) In general. (1) An application for
an order or ruling not otherwise
specifically provided for in this subpart
shall be made by motion. A motion shall
set forth with particularity the ruling or
relief sought, the grounds and basis
therefor, and the statutory or other
authority relied upon, and shall be filed
with the Secretary and served pursuant
to the provisions of subpart B to part
3010 of this chapter. A motion to
dismiss proceedings or any other
motion that involves a final
determination of the proceeding, any
motion under § 3020.121, and a motion
that seeks to extend the deadline for
issuance of an advisory opinion shall be
addressed to the Commission. After a
presiding officer is designated in a
proceeding, all other motions in that
proceeding, except those filed under
part 3011 of this chapter, shall be
addressed to the presiding officer.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(2) Within five days after a motion is
filed, or such other period as the
Commission or presiding officer in any
proceeding under this subpart may
establish, any participant to the
proceeding may file and serve an
answer in support of or in opposition to
the motion pursuant to subpart B to part
3010 of this chapter. Such an answer
shall state with specificity the position
of the participant with regard to the
ruling or relief requested in the motion
and the grounds and basis and statutory
or other authority relied upon. Unless
the Commission or presiding officer
otherwise provides, no reply to an
answer or any further responsive
document shall be filed.
(b) Motions to be excused from
answering discovery requests. (1) A
motion to be excused from answering
discovery requests shall be filed with
the Commission within three days of the
filing of the interrogatory, request for
production, or request for admission to
which the motion is directed. If a
motion to be excused from answering is
made part of an interrogatory, request
for production, or request for admission,
the part to which objection is made
shall be clearly identified. Claims of
privilege shall identify the specific
evidentiary privilege asserted and state
the reasons for its applicability. Claims
of undue burden shall state with
particularity the effort that would be
required to answer or respond to the
request, providing estimates of costs and
workhours required, to the extent
possible.
(2) An answer to a motion to be
excused from answering a discovery
request shall be filed within two days of
the filing of the motion. The text of the
discovery request and any answer
previously provided by the Postal
Service shall be included as an
attachment to the answer.
(3) Unless the Commission or
presiding officer grants the motion to be
excused from answering, the Postal
Service shall answer the interrogatory,
production request, or request for
admission. Answers shall be filed in
conformance with subpart B to part
3010 of this chapter within three days
of the date on which a motion to be
excused from answering is denied.
(4) The Commission or presiding
officer may impose such terms and
conditions as are just and may, for good
cause, issue a protective order,
including an order limiting or
conditioning interrogatories, requests
for production, and requests for
admission as justice requires to protect
the Postal Service from undue
annoyance, embarrassment, oppression,
or expense.
PO 00000
Frm 00038
Fmt 4701
Sfmt 4700
(c) Motions to strike. Motions to strike
are requests for extraordinary relief and
are not substitutes for briefs or rebuttal
evidence in a proceeding. A motion to
strike testimony or exhibit materials
must be submitted in writing at least
three days before the scheduled
appearance of a witness, unless good
cause is shown. Responses to motions to
strike are due within two days.
(d) Motions for leave to file
surrebuttal testimony. Motions for leave
to file surrebuttal testimony submitted
pursuant to § 3020.121 and any answers
thereto must be filed on or before the
dates provided in the procedural
schedule established by the
Commission.
§ § 3020.106–3020.109
§ 3020.110
[Reserved]
Procedural schedule.
(a) Notice. Subject to paragraph (b) of
this section, the Commission shall
include in the notice of proceeding
issued under § 3010.151 of this chapter
a procedural schedule based upon the
pro forma schedule set forth in
appendix A of this part. The procedural
schedule shall include:
(1) A deadline for notices of
interventions;
(2) The date(s) for the mandatory
technical conference between the Postal
Service, Commission staff, and
interested parties;
(3) The deadline for discovery on the
Postal Service’s direct case;
(4) The deadline for responses to
participant in discovery on the Postal
Service’s case;
(5) The deadline for participants to
confirm their intent to file a rebuttal
case;
(6) The date for filing participant
rebuttal testimony, if any;
(7) The dates for filing motions for
leave to file surrebuttal testimony and
answers thereto;
(8) The date for filing surrebuttal, if
any;
(9) The date(s) for hearings on the
Postal Service’s direct case, rebuttal
testimony, and surrebuttal testimony, if
any;
(10) The date for filing initial briefs;
(11) The date for filing reply briefs;
and
(12) A deadline for issuance of an
advisory opinion which is 90 days from
the date of filing.
(b) Changes for good cause. These
dates are subject to change for good
cause only.
(c) Incomplete request. If at any time
the Commission determines that the
Postal Service’s request is incomplete or
that changes made subsequent to its
filing significantly modify the request,
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
the Commission may extend the
deadlines established or take any other
action as justice may require.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3020.111
Pre-filing requirements.
(a) Pre-filing conference required.
Prior to the Postal Service filing a
request that the Commission issue an
advisory opinion on a proposed change
in the nature of postal services subject
to the procedures established in this
subpart, the Postal Service shall conduct
one or more pre-filing conference(s)
with interested persons in the
proceeding and shall make a good faith
effort to address the concerns of such
persons.
(b) Purpose. The purpose of a prefiling conference is to expedite
consideration of the Postal Service’s
request for the issuance of advisory
opinions by informing interested
persons of the Postal Service’s proposal;
by providing an opportunity for
interested persons to give feedback to
the Postal Service that can be used by
the Postal Service to modify or refine its
proposal before it is filed at the
Commission; and by identifying
relevant issues and information needed
to address those issues during
proceedings at the Commission.
(c) Rationale for the proposal. The
Postal Service shall make available at
the pre-filing conference a
representative capable of discussing the
policy rationale behind the Postal
Service’s proposal with interested
persons.
(d) Notice. The Postal Service shall
file with the Commission a notice of its
intent to conduct any pre-filing
conference(s) at least ten days before the
first scheduled conference. The notice
filed by the Postal Service shall include
a schedule of proposed date(s) and
location(s) for the conference(s). Upon
receipt of such notice, the Commission
shall issue a notice of pre-filing
conference(s), which shall be published
in the Federal Register, and appoint a
Public Representative.
(e) Nature of conferences. Discussions
during the pre-filing conference(s) shall
be informal and off the record. No
formal record will be created during a
pre-filing conference.
(f) Noncompliance. If the Postal
Service’s noncompliance with the
requirements of the pre-filing
conference under § 3020.113(b)(4) is
established by a participant, the
Commission may, in its discretion,
consider an extension of, or
modification to, the procedural
schedule.
(g) Informal meetings. Interested
persons may meet outside the context of
a pre-filing conference, among
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
themselves or with the Postal Service,
individually or in groups, to discuss the
proposed changes in the nature of postal
services.
§ 3020.112
Filing of formal requests.
Whenever the Postal Service
determines to request that the
Commission issue an advisory opinion
on a proposed change in the nature of
postal services subject to this subpart,
the Postal Service shall file with the
Commission a formal request for such
an opinion in accordance with the
requirements of subpart B to part 3010
of this chapter and § 3020.113. The
request shall be filed not less than 90
days before the proposed effective date
of the change in the nature of postal
services involved. Within five days after
the Postal Service has filed a formal
request for an advisory opinion in
accordance with this section, the
Secretary shall lodge a notice thereof
with the director of the Office of the
Federal Register for publication in the
Federal Register.
§ 3020.113
Contents of formal requests.
(a) General requirements. A formal
request filed under this subpart shall
include such information and data and
such statements of reasons and basis as
are necessary and appropriate to fully
inform the Commission and interested
persons of the nature, scope,
significance, and impact of the proposed
change in the nature of postal services
and to show that the change in the
nature of postal services is in
accordance with and conforms to the
policies established under title 39,
United States Code.
(b) Specific information. A formal
request shall include:
(1) A detailed statement of the present
nature of the postal services proposed to
be changed and the change proposed;
(2) The proposed effective date for the
proposed change in the nature of postal
services;
(3) A full and complete statement of
the reasons and basis for the Postal
Service’s determination that the
proposed change in the nature of postal
services is in accordance with and
conforms to the policies of title 39,
United States Code;
(4) A statement that the Postal Service
has completed the pre-filing
conference(s) required by § 3020.111,
including the time and place of each
conference and a certification that the
Postal Service has made a good faith
effort to address concerns of interested
persons about the Postal Service’s
proposal raised at the pre-filing
conference(s);
PO 00000
Frm 00039
Fmt 4701
Sfmt 4700
9651
(5) The prepared direct evidence
required by § 3020.114;
(6) The name of an institutional
witness capable of providing
information relevant to the Postal
Service’s proposal that is not provided
by other Postal Service witnesses; and
(7) Confirmation that Postal Service
witnesses, including its institutional
witness, will be available for the
mandatory technical conference
provided for in § 3020.115.
(c) Additional information. The
Commission may request additional
information from the Postal Service
concerning a formal request.
(d) Reliance on prepared direct
evidence. The Postal Service may
incorporate detailed data, information,
and statements of reason or basis
contained in prepared direct evidence
submitted under paragraph (b)(5) of this
section into its formal request by
reference to specific portions of the
prepared direct evidence.
§ 3020.114
evidence.
Filing of prepared direct
As part of a formal request for an
advisory opinion under this subpart, the
Postal Service shall file all of the
prepared direct evidence upon which it
proposes to rely in the proceeding on
the record before the Commission to
establish that the proposed change in
the nature of postal services is in
accordance with and conforms to the
policies of title 39, United States Code.
Such prepared direct evidence shall be
in the form of prepared written
testimony and documentary exhibits
which shall be filed in accordance with
§§ 3010.322 and 3010.323 of this
chapter.
§ 3020.115 Mandatory technical
conference.
(a) Date. A date for a mandatory
technical conference shall be included
in the procedural schedule required by
§ 3020.110. The date for this technical
conference shall be set based upon the
pro forma schedule set forth in
appendix A to this part. The conference
shall be held at the offices of the
Commission.
(b) Witnesses. The Postal Service shall
make available at the technical
conference each witness whose
prepared direct testimony was filed
pursuant to § 3020.114. If the Postal
Service seeks for any witness to be
excused on the basis that the witness’s
testimony neither presents nor is based
upon technical information, it shall
make such a motion concurrent with its
request.
(c) Purpose. The purpose of the
technical conference is to provide an
E:\FR\FM\19FER2.SGM
19FER2
9652
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
informal, off-the-record opportunity for
participants, the officer of the
Commission representing the interests
of the general public, and Commission
staff to clarify technical issues and to
identify and request information
relevant to an evaluation of the nature
of changes to postal services proposed
by the Postal Service. The technical
conference is not part of the formal
record in the proceeding.
(d) Relation to discovery process.
Information obtained during the
mandatory technical conference may be
used to discover additional relevant
information by means of the formal
discovery mechanisms provided for in
§§ 3020.116 through 3020.119.
(e) Record. Information obtained
during, or as a result of, the mandatory
technical conference is not part of the
decisional record unless admitted under
the standards of § 3010.322(a) of this
chapter.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3020.116
Discovery—in general.
(a) Purpose. The rules in this subpart
allow discovery that is reasonably
calculated to lead to admissible
evidence during a proceeding. The
notice and scheduling order issued
pursuant to § 3020.110 shall provide
that discovery will be scheduled to end
at least three days prior to the
commencement of hearings.
(b) Informal discovery. The discovery
procedures in this section and
§§ 3020.117 through 3020.119 are not
exclusive. Participants are encouraged
to engage in informal discovery
whenever possible to clarify exhibits
and testimony. The results of these
efforts may be introduced into the
record by stipulation, or by other
appropriate means. In the interest of
reducing motion practice, participants
also are expected to use informal means
to clarify questions and to identify
portions of discovery requests
considered overbroad or burdensome.
(c) Failure to obey orders or rulings.
If a participant fails to obey an order of
the Commission or ruling of presiding
officer to provide or permit discovery
pursuant to this section or §§ 3020.117
through 3020.119, the Commission or
the presiding officer may issue orders or
rulings in regard to the failure as are
just. These orders or rulings may, among
other things:
(1) Direct that certain designated facts
are established for the purposes of the
proceeding;
(2) Prohibit a participant from
introducing certain designated matters
in evidence;
(3) Strike certain evidence, requests,
pleadings, or parts thereof; or
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
(4) Such other relief as the
Commission deems appropriate.
§ 3020.117
Interrogatories.
(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 in
a proceeding may propound to any
other participant no more than a total of
25 written, sequentially numbered
interrogatories, by witness, requesting
non-privileged information relevant to
the subject matter of the proceeding. An
interrogatory with subparts that are
logically or factually subsumed within
and necessarily related to the primary
question will be counted as one
interrogatory. The respondent shall
answer each interrogatory and furnish
such information as is available. The
participant propounding the
interrogatories shall file them with the
Commission in conformance with part
3010, subpart B, of this chapter. Followup interrogatories that clarify or
elaborate on the answer to an earlier
discovery request may be filed after the
period for intervenor discovery on the
Postal Service case ends, if the
interrogatories are filed within seven
days of receipt of the answer to the
previous interrogatory. In extraordinary
circumstances, follow-up interrogatories
may be filed not less than six days prior
to the filing date for the participant’s
rebuttal or surrebuttal testimony.
(b) Answers. (1) Answers to
interrogatories shall be prepared so that
they can be incorporated into the record
as written cross-examination. Each
answer shall begin on a separate page,
identify the individual responding and
the relevant testimony number, if any,
the participant who propounded the
interrogatory, and the number and text
of the question.
(2) Each interrogatory shall be
answered separately and fully in writing
by the individual responsible for the
answer, unless it is objected to, in
which event the reasons for objection
shall be stated in a motion to be excused
from answering in the manner
prescribed by paragraph (c) of this
section.
(3) 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.
(4) Answers filed by a respondent
shall be filed in conformance with
subpart B to part 3010 of this chapter
within seven days of the filing of the
interrogatories or within such other
period as may be fixed by the
Commission or presiding officer. Any
PO 00000
Frm 00040
Fmt 4701
Sfmt 4700
other period fixed by the Commission or
presiding officer shall end before the
conclusion of the hearing.
(c) Motion to be excused from
answering. A respondent may, in lieu of
answering an interrogatory, file a
motion pursuant to § 3020.105(b) to be
excused from answering.
(d) Supplemental answers. A
respondent has a duty to timely amend
a prior answer if it obtains information
upon the basis of which it knows that
the answer was incorrect when made or
is no longer true. A respondent shall
serve supplemental answers to update
or to correct responses whenever
necessary, up until the date the answer
could have been accepted into evidence
as written cross-examination. A
respondent shall indicate whether the
answer merely supplements the
previous answer to make it current or
whether it is a complete replacement for
the previous answer.
§ 3020.118
Production of documents.
(a) Service and contents. (1) 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 a
request to produce and permit the
participant making the request, or
someone acting on behalf of the
participant, to inspect and copy any
designated documents or things that
constitute or contain matters, not
privileged, that are relevant to the
subject matter involved in the
proceeding and that are in the custody
or control of the respondent.
(2) 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 items shall file its request
with the Commission in conformance
with part 3010, subpart B, of this
chapter.
(b) Answers. (1) The respondent shall
file an answer to a request under
paragraph (a) of this section with the
Commission in conformance with
subpart B to part 3010 of this chapter
within seven days after the request is
filed, or within such other period as
may be fixed by the Commission or
presiding officer. The answer shall state,
with respect to each item or category,
whether inspection will be permitted as
requested.
(2) If the respondent objects to an item
or category, it shall state the reasons for
objection in a motion to be excused
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
from answering as prescribed by
paragraph (c) of this section.
(c) Motions to be excused from
answering. A respondent may, in lieu of
answering a request for production, file
a motion pursuant to § 3020.105(b) to be
excused from answering.
khammond on DSKJM1Z7X2PROD with RULES2
§ 3020.119
Admissions.
(a) Service and content. In the interest
of expedition, any participant may serve
upon any other participant a written
request for the admission of any
relevant, unprivileged facts, including
the genuineness of any documents or
exhibits to be presented in the hearing.
The admission shall be for purposes of
the pending proceeding only. The
participant requesting the admission
shall file its request with the
Commission in conformance with
subpart B to part 3010 of this chapter.
(b) Answers. (1) A matter for which
admission is requested shall be
separately set forth in the request and is
deemed admitted unless, within seven
days after the request is filed, or within
such other period as may be established
by the Commission or presiding officer,
the respondent files a written answer or
motion to be excused from answering
pursuant to paragraph (c) of this section.
Answers to requests for admission shall
be filed with the Commission in
conformance with subpart B to part
3010 of this chapter.
(2) If the answer filed by the
respondent does not admit a matter
asserted in the participant’s request, it
must either specifically deny the matter
or explain in detail why it cannot
truthfully admit or deny the asserted
matter. When good faith requires, the
respondent must admit a portion of the
asserted matter and either deny or
qualify the remaining portion of such
asserted matter. Lack of knowledge for
failing to admit or deny can be invoked
only after reasonable inquiry if the
information already possessed or
reasonably obtainable is insufficient to
enable an admission or denial.
(3) Grounds for objection to requests
for admission must be stated. Objections
cannot be based solely upon the ground
that the request presents a genuine issue
for trial.
(c) Motion to be excused from
answering. A respondent may, in lieu of
answering a request for admission, file
a motion pursuant to § 3020.105(b) to be
excused from answering.
§ 3020.120
Rebuttal testimony.
(a) Timing. Any participant may file
rebuttal testimony on or before the date
established for that purpose by the
procedural schedule issued by the
Commission pursuant to § 3020.110.
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
Hearing on rebuttal testimony shall
proceed as set forth in the procedural
schedule.
(b) Limitations. The scope of rebuttal
testimony shall be limited to material
issues relevant to the specific proposal
made by the Postal Service. Rebuttal
testimony shall not propose, or seek to
address, alternatives to the Postal
Service’s proposal.
(c) Intent to file rebuttal testimony. If
a participant wishes to file rebuttal
testimony, it must file a document
confirming its intent to file rebuttal
testimony with the Commission by the
date provided in the procedural
schedule.
(d) Adjustment of dates. If no
participant files a confirmation of intent
to file rebuttal testimony on or before
the date established by the procedural
schedule issued by the Commission
pursuant to § 3020.110, the Commission
may adjust other dates in the procedural
schedule as it deems to be necessary
and appropriate.
§ 3020.121
Surrebuttal testimony.
(a) Scope. Surrebuttal testimony shall
be limited to material issues relevant to
the Postal Service’s proposal and to the
rebuttal testimony which the surrebuttal
testimony seeks to address. Testimony
that exceeds the scope of the Postal
Service’s proposal or rebuttal testimony
shall not be permitted.
(b) Motion for leave to file surrebuttal.
A participant who wishes to file
surrebuttal testimony must obtain prior
approval by filing with the Commission
a motion for leave to file surrebuttal
pursuant to § 3020.105(d) on or before
the date provided in the procedural
schedule established by the
Commission. The motion must
summarize the surrebuttal testimony the
participant wishes to file and must
identify and explain exceptional
circumstances that require the filing of
such testimony. The moving participant
bears the burden of demonstrating
exceptional circumstances that warrant
a grant of the motion. Answers to such
motions may be filed as provided in
§ 3020.105(d).
(c) Deadline for filing surrebuttal
authorized by the Commission. In the
event the Commission grants the motion
for leave to file surrebuttal testimony,
the moving participant must file its
proposed surrebuttal testimony by the
date provided in the procedural
schedule established pursuant to
§ 3020.110.
(d) Adjustment of procedural dates. If
no participant files a motion for leave to
file surrebuttal testimony, or if the
Commission denies all such motions as
may be filed, the remaining dates in the
PO 00000
Frm 00041
Fmt 4701
Sfmt 4700
9653
procedural schedule may be adjusted by
the Commission as it deems to be
necessary and appropriate.
§ 3020.122
Hearings.
(a) Initiation. Hearings for the purpose
of taking evidence shall be initiated by
the issuance of a notice and scheduling
order pursuant to § 3020.110.
(b) Presiding officer. All hearings shall
be held before the Commission sitting
en banc with a duly designated
presiding officer.
(c) Entering of appearances. The
Commission or the presiding officer
before whom the hearing is held will
cause to be entered on the record all
appearances together with a notation
showing on whose behalf each such
appearance has been made.
(d) Order of procedure. In requests for
advisory opinions before the
Commission, the Postal Service shall be
the first participant to present its case.
Unless otherwise ordered by the
Commission, the presiding officer shall
direct the order of presentation of all
other participants and issue such other
procedural orders as may be necessary
to assure the orderly and expeditious
conclusion of the hearing.
(e) Presentation of the evidence—(1)
Presentations by participants. Each
participant shall have the right in public
hearings to present evidence relevant to
the Postal Service’s proposal, crossexamine (limited to testimony adverse
to the participant conducting the crossexamination), object, move, and argue.
The participant’s presentation shall be
in writing and may be accompanied by
a trial brief or legal memoranda. (Legal
memoranda on matters at issue will be
welcome at any stage of the proceeding.)
When objections to the admission or
exclusion of evidence before the
Commission or the presiding officer are
made, the grounds relied upon shall be
stated. Formal exceptions to rulings are
unnecessary.
(2) Written cross-examination.
Written cross-examination will be
utilized as a substitute for oral crossexamination whenever possible,
particularly to introduce factual or
statistical evidence. Designations of
written cross-examination shall be
served in accordance with part 3010,
subpart B, of this chapter no later than
three days before the scheduled
appearance of a witness. Designations
shall identify every item to be offered as
evidence, listing the participant who
initially posed the discovery request,
the witness and/or party to whom the
question was addressed (if different
from the witness answering), the
number of the request and, if more than
one answer is provided, the dates of all
E:\FR\FM\19FER2.SGM
19FER2
khammond on DSKJM1Z7X2PROD with RULES2
9654
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
answers to be included in the record.
(For example, ‘‘PR–T1–17 to USPS
witness Jones, answered by USPS
witness Smith (March 1, 1997) as
updated (March 21, 1997)’’). When a
participant designates written crossexamination, two hard copies of the
documents (unfastened, single-spaced,
not hole-punched) are to be included
and shall simultaneously be submitted
to the Secretary of the Commission. The
Secretary of the Commission shall
prepare for the record a packet
containing all materials designated for
written cross-examination in a format
that facilitates review by the witness
and counsel. The witness will verify the
answers and materials in the packet,
and they will be entered into the
transcript by the presiding officer.
Counsel may object to written crossexamination at that time, and any
designated answers or materials ruled
objectionable will not be admitted into
the record.
(3) Oral cross-examination. Oral
cross-examination will be permitted for
clarifying written cross-examination and
for testing assumptions, conclusions or
other opinion evidence. Notices of
intent to conduct oral cross-examination
shall be filed three or more days before
the announced appearance of the
witness and shall include specific
references to the subject matter to be
examined and page references to the
relevant direct testimony and exhibits.
A participant intending to use complex
numerical hypotheticals, or to question
using intricate or extensive crossreferences, shall provide adequately
documented cross-examination exhibits
for the record. Copies of these exhibits
shall be filed at least two days
(including one working day) before the
scheduled appearance of the witness.
They may be filed online or delivered in
hardcopy form to counsel for the
witness, at the discretion of the
participant. If a participant has obtained
permission to receive service of
documents in hardcopy form, hardcopy
notices of intent to conduct oral crossexamination of witnesses for that
participant shall be delivered to counsel
for that participant and served three or
more working days before the
announced appearance of the witness.
Cross-examination exhibits shall be
delivered to counsel for the witness at
least two days (including one working
day) before the scheduled appearance of
the witness.
(f) Limitations on presentation of the
evidence. The taking of evidence shall
proceed with all reasonable diligence
and dispatch, and to that end, the
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
Commission or the presiding officer
may limit appropriately:
(1) The number of witnesses to be
heard upon any issue;
(2) The examination by any
participant to specific issues; and
(3) The cross-examination of a witness
to that required for a full and true
disclosure of the facts necessary for
exploration of the Postal Service’s
proposal, disposition of the proceeding,
and the avoidance of irrelevant,
immaterial, or unduly repetitious
testimony.
(g) Motions during hearing. Except as
provided in § 3020.105(a), after a
hearing has commenced in a
proceeding, a request may be made by
motion to the presiding officer for any
procedural ruling or relief desired. Such
motions shall set forth the ruling or
relief sought, and state the grounds
therefore and statutory or other
supporting authority. Motions made
during hearings may be stated orally
upon the record, except that the
presiding officer may require that such
motions be reduced to writing and filed
separately. Any participant shall have
the opportunity to answer or object to
such motions at the time and in the
manner directed by the presiding
officer.
(h) Rulings on motions. The presiding
officer is authorized to rule upon any
motion not reserved for decision by the
Commission in § 3020.105(a). This
section shall not preclude a presiding
officer from referring any motion made
in hearing to the Commission for
ultimate determination.
(i) Transcript corrections. Corrections
to the transcript of a hearing shall not
be requested except to correct a material
substantive error in the transcription
made at the hearing.
(j) Field hearings. Field hearings will
not be held except upon a showing by
any participant and determination by
the Commission that there is
exceptional need or utility for such a
hearing which cannot be accomplished
by alternative means.
§ 3020.123
Initial and reply briefs.
(a) When filed. At the close of the
taking of testimony in any proceeding,
participants may file initial and reply
briefs. The dates for filing initial and
reply briefs shall be established in the
procedural schedule issued pursuant to
§ 3020.110. Such dates may be modified
by subsequent order issued by the
Commission or the presiding officer.
(b) Contents. Each brief filed with the
Commission shall be as concise as
possible and shall include the following
in the order indicated:
PO 00000
Frm 00042
Fmt 4701
Sfmt 4700
(1) A subject index with page
references, and a list of all cases and
authorities relied upon, arranged
alphabetically, with references to the
pages where the citation appears;
(2) A concise statement of the case
from the viewpoint of the filing
participant;
(3) A clear, concise, and definitive
statement of the position of the filing
participant as to the Postal Service
request;
(4) A discussion of the evidence,
reasons, and authorities relied upon
with precise references to the record
and the authorities; and
(5) Proposed findings and conclusions
with appropriate references to the
record or the prior discussion of the
evidence and authorities relied upon.
(c) Length. Initial briefs filed by all
participants other than the Postal
Service shall not exceed 14,000 words.
Initial briefs filed by the Postal Service
shall not exceed 21,000 words. Reply
briefs filed by all participants other than
the Postal Service shall not exceed 7,000
words. Reply briefs filed by the Postal
Service shall not exceed 10,500 words.
All participants shall attest to the
number of words contained in their
brief. Tables of cases, tables of citations,
and appendices shall not be considered
as part of the word count.
(d) Include by reference. Briefs before
the Commission or a presiding officer
shall be completely self-contained and
shall not incorporate by reference any
portion of any other brief, pleading, or
document.
(e) Excerpts from the record.
Testimony and exhibits shall not be
quoted or included in briefs except for
short excerpts pertinent to the argument
presented.
(f) Filing and service. Briefs shall be
filed in the form and manner and served
as required by subpart B to part 3010 of
this chapter.
(g) Statements of Position. As an
alternative to filing a formal brief, a
participant may file a Statement of
Position. To the extent practicable, the
contents of each Statement of Position
should include a clear, concise, and
definitive statement of the position of
the filing participant as to the Postal
Service request, as well as any points or
factors in the existing record that
support the participant’s position.
Statements of Position shall be limited
to the existing record and shall not
include any new evidentiary material.
Appendix A to Part 3020—Pro Forma
N-Case Procedural Schedule
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Line
Action
1 ..............
2 ..............
3 ..............
4 ..............
5 ..............
6 ..............
7 ..............
8 ..............
9 ..............
10 ............
11 ............
12 ............
13 ............
Pre-Filing Consultations 1 ..........................................................................................................
Commission Order 2 ..................................................................................................................
Filing of Postal Service Request ...............................................................................................
Commission Notice and Order 3 ...............................................................................................
Technical Conference ...............................................................................................................
Participant Discovery on Postal Service Case Ends ................................................................
Responses to Participant Discovery on Postal Service Case ..................................................
Participants Confirm Intent to File a Rebuttal Case .................................................................
Filing of Rebuttal Cases (if submitted) .....................................................................................
Deadline for Motions to Leave to File Surrebuttal ....................................................................
Deadline for Answers to Motions for Surrebuttal ......................................................................
Filing of Surrebuttal Cases (if authorized) ................................................................................
Hearings:
Hearings (with no Rebuttal Cases) ....................................................................................
Hearings (with Rebuttal Cases, but no requests for leave to file Surrebuttal Cases) ......
Hearings (with Rebuttal Cases and requests for leave to file Surrebuttal Cases) ...........
Initial Briefs ................................................................................................................................
Reply Briefs ...............................................................................................................................
Target Issuance Date of Advisory Opinion ...............................................................................
14 ............
15 ............
16 ...........
9655
Day number
n/a.
n/a.
0.
1–3.
10.
28.
35.
37.4
42.
44.5
46.
49.6
42–44.
49–51.
54–56.
(7 days after conclusion of hearings).
(7 days after filing of Initial Briefs).
90.
1 The Postal Service would initiate pre-filing consultations and would file a notice with the Commission of such consultations prior to their commencement.
2 This order would appoint a Public Representative.
3 This notice and order would announce the Postal Service request, set a deadline for interventions, set a date for a technical conference, and
establish a procedural schedule.
4 If no participant elects to file a rebuttal case, hearings begin on Day 42.
5 If no surrebuttal cases are requested, hearings begin on Day 49.
6 If one or more surrebuttal cases are requested (whether or not authorized by the Commission), hearings begin on Day 54.
*
*
*
*
(b) Subparts A through D to part 3010
of this chapter apply to appeals of post
office closings or consolidations.
*
*
*
*
*
■ 77. Amend newly redesignated
§ 3021.13 by revising paragraph (a) to
read as follows:
interested person, or any counsel, agent,
or other person authorized or
recognized by the Postal Service as such
interested person’s representative or the
representative of such interested
person’s recognized group, such as
Postmasters, may participate in an
appeal by sending written comments to
the Postal Regulatory Commission in the
manner described in § 3021.11.
(b) Persons may submit comments
supporting or opposing a Commission
order returning the entire matter to the
Postal Service for further consideration.
Comments must be filed in accordance
with the deadlines established in
§§ 3021.41 through 3021.43.
Commenters may use PRC Form 61,
which is available on the Commission’s
website, https://www.prc.gov.
■ 79. Amend newly redesignated
§ 3021.40 by revising paragraph (a) to
read as follows:
§ 3021.13
§ 3021.40
PART 3021—RULES FOR APPEALS OF
POSTAL SERVICE DETERMINATIONS
TO CLOSE OR CONSOLIDATE POST
OFFICES
75. The authority for newly
redesignated part 3021 continues to read
as follows:
■
Authority: 39 U.S.C. 404(d).
76. Amend newly redesignated
§ 3021.2 by revising paragraph (b) to
read as follows:
■
§ 3021.2
Applicability.
khammond on DSKJM1Z7X2PROD with RULES2
*
Deadlines for appeals.
(a) In general. If the Postal Service has
issued a final determination to close or
consolidate a post office, an appeal is
due within 30 days of the final
determination being made available in
conformance with § 3021.3(b).
*
*
*
*
*
■ 78. Revise newly redesignated
§ 3021.14 to read as follows:
§ 3021.14
Participation by others.
(a) A person served by the post office
to be closed or consolidated pursuant to
the Postal Service written determination
under review who desires to intervene
in the proceeding, or any other
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
Participant statement.
(a) When a timely Petition for Review
of a decision to close or consolidate a
post office is filed, the Secretary shall
furnish petitioner with a copy of PRC
Form 61. This form is designed to
inform petitioners on how to make a
statement of the petitioner’s arguments
in support of the petition.
*
*
*
*
*
PART 3022—RULES FOR
COMPLAINTS
PO 00000
Frm 00043
Fmt 4701
Sfmt 4700
81. Revise newly redesignated
§ 3022.1 to read as follows:
§ 3022.1
Applicability.
(a) The rules in this part govern the
procedure for complaints filed under 39
U.S.C. 3662 that meet the form and
manner requirements of subpart B of
this part. Part 3010 of this chapter
applies unless otherwise stated in this
part or otherwise ordered by the
Commission.
(b) Subpart E to part 3010 of this
chapter does not apply to this part
unless and until the Commission makes
a finding under § 3022.30(a)(1) that the
complaint raises material issues of fact
or law and that the issues shall be
considered through a hearing on the
record.
■ 82. Amend newly redesignated
§ 3022.10 by revising paragraph (a)(10)
to read as follows:
§ 3022.10
Complaint contents.
(a) * * *
(10) Include a certification that the
complaint has been served on the
United States Postal Service as required
by § 3022.11.
*
*
*
*
*
■ 83. Revise newly redesignated
§ 3022.11 to read as follows:
§ 3022.11
80. The authority for newly
redesignated part 3022 continues to read
as follows:
■
Authority: 39 U.S.C. 503; 3622.
■
Service.
Any person filing a complaint must
simultaneously serve a copy of the
complaint on the Postal Service at this
address: PRCCOMPLAINTS@usps.gov.
E:\FR\FM\19FER2.SGM
19FER2
9656
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
A person without internet access may
contact the Secretary to obtain approval
for alternative methods of service.
■ 84. Amend newly redesignated
§ 3022.12 by revising paragraph (b)(2) to
read as follows:
§ 3022.12 Pleadings filed in response to a
complaint.
*
*
*
*
*
(b) * * *
(2) If the Commission invokes the rate
or service inquiry special procedures
under § 3022.13 to the complaint, the
answer is due contemporaneously with
the Postal Service’s report under
§ 3023.11 of this chapter if the
complaint has not been resolved by that
date.
*
*
*
*
*
■ 85. Amend newly redesignated
§ 3022.13 by revising paragraphs (b) and
(c) to read as follows:
§ 3022.13 Conditions for applying rate or
service inquiry procedures to complaints.
*
*
*
*
*
(b) The Commission may in its
discretion, sua sponte, attempt to
resolve a complaint through the rate or
service inquiry procedures of § 3023.11
of this chapter if the Commission finds
that there is a reasonable likelihood that
such procedures may result in
resolution of the complaint. The
Commission will issue an order to apply
the procedures of § 3023.11 of this
chapter prior to the due date for the
Postal Service answer set forth in
§ 3022.12.
(c) If the Commission determines that
application of paragraph (a) of this
section is appropriate and the Postal
Service is unable to resolve the
complaint within 45 days, or such other
period of time as ordered by the
Commission, the Postal Service shall
file its answer in accordance with
§ 3022.12(b)(2).
■ 86. Revise newly redesignated
§ 3022.20 to read as follows:
khammond on DSKJM1Z7X2PROD with RULES2
§ 3022.20
Sufficiency of information.
If, after review of the information
submitted pursuant to this part, the
Commission determines that additional
information is necessary to enable it to
evaluate whether the complaint raises
material issues of fact or law, the
Commission shall, in its discretion,
either require the complainant and/or
the Postal Service to provide additional
information as deemed necessary, issue
an appropriate order to appoint an
investigator in accordance with
§ 3022.21, or do both.
■ 87. Amend newly redesignated
§ 3022.30 by revising paragraph (a)(1) to
read as follows:
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
§ 3022.30 Beginning proceedings on
complaints.
(a) * * *
(1) A notice and order in accordance
with § 3010.151 of this chapter that
finds the complaint raises one or more
material issues of fact or law and begin
proceedings on the complaint; or
*
*
*
*
*
■ 88. Amend newly redesignated
§ 3022.41 by revising paragraph (a)
introductory text to read as follows:
§ 3022.41
Satisfaction.
(a) If a complaint is resolved
informally, in whole or in part,
subsequent to Commission action under
§ 3022.30(a)(1), the complainant must
promptly file:
*
*
*
*
*
PART 3023—RULES FOR RATE OR
SERVICE INQUIRIES BY THE PUBLIC
ABOUT POSTAL SERVICE ACTIVITY
§ 3024.1
Applicability.
The rules in this part govern
proceedings filed under 39 U.S.C. 3662
alleging violations of 39 U.S.C. 404a that
meet the requirements of §§ 3022.2 and
3022.10 of this chapter.
■ 94. Amend newly redesignated
§ 3024.5 by revising paragraph (a)
introductory text to read as follows:
§ 3024.5 Postal Service rules that create
an unfair competitive advantage.
(a) A complaint alleging a violation of
39 U.S.C. 404a(a)(1) must show that a
Postal Service rule, regulation, or
standard has the effect of:
*
*
*
*
*
PART 3025—PROCEDURES RELATED
TO COMMISSION VIEWS SUBMITTED
TO THE SECRETARY OF STATE
95. The authority for part 3025
continues to read as follows:
■
Authority: 39 U.S.C. 407; 503.
96. The heading for newly
redesignated part 3025 is revised to read
as set forth above.
■
89. The authority for newly
redesignated part 3023 continues to read
as follows:
■
Authority: 39 U.S.C. 503; 3662.
90. Amend newly redesignated
§ 3023.11 by revising paragraph (b) to
read as follows:
PART 3030—REGULATION OF RATES
FOR MARKET DOMINANT PRODUCTS
■
§ 3023.11 Rate or service inquiry
procedures.
*
*
*
*
*
(b) The Commission will monitor all
rate or service inquiries to determine if
Commission action under § 3023.12 is
appropriate.
*
*
*
*
*
■ 91. Revise newly redesignated
§ 3023.12 to read as follows:
§ 3023.12
Treatment as a complaint.
If the Commission receives a volume
of rate or service inquiries on the same
or similar issue such that there may be
cause to warrant treatment as a
complaint, it may appoint an
investigator to review the matter under
§ 3022.21 of this chapter or appoint a
Public Representative representing the
interests of the general public to pursue
the matter.
PART 3024—SPECIAL RULES FOR
COMPLAINTS ALLEGING VIOLATIONS
OF 39 U.S.C. 404a
92. The authority for newly
redesignated part 3024 continues to read
as follows:
■
Authority: 39 U.S.C. 404a; 3662.
93. Revise newly redesignated
§ 3024.1 to read as follows:
■
PO 00000
Frm 00044
Fmt 4701
Sfmt 4700
97. The authority for newly
redesignated part 3030 continues to read
as follows:
■
Authority: 39 U.S.C. 503; 3622.
98. Amend newly redesignated
§ 3030.501 by revising paragraphs (b)(1)
through (3), (d), (e), (h) through (l), and
(m)(1) and (2) to read as follows:
■
§ 3030.501
Definitions.
*
*
*
*
*
(b) * * *
(1) In the case of a notice of a Type
1–A or Type 1–B rate adjustment filed
12 or more months after the last Type
1–A or Type 1–B notice of rate
adjustment, the full year limitation on
the size of rate adjustments calculated
pursuant to § 3030.521;
(2) In the case of a notice of a Type
1–A or Type 1–B rate adjustment filed
less than 12 months after the last Type
1–A or Type 1–B notice of rate
adjustment, the partial year limitation
on the size of rate adjustments
calculated pursuant to § 3030.522; and
(3) In the case of a notice of a Type
1–C rate adjustment, the annual
limitation calculated pursuant to
§ 3030.521 or § 3030.522, as applicable,
for the most recent notice of a Type 1–
A or Type 1–B rate adjustment.
*
*
*
*
*
(d) De minimis rate increase means a
rate adjustment described in § 3030.530.
(e) Maximum rate adjustment means
the maximum rate adjustment that the
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Postal Service may make for a class
pursuant to a notice of Type 1–A or
Type 1–B rate adjustment. The
maximum rate adjustment is calculated
in accordance with § 3030.520.
*
*
*
*
*
(h) Type 1–A rate adjustment means
a rate adjustment described in
§ 3030.504.
(i) Type 1–B rate adjustment means a
rate adjustment described in § 3030.505.
(j) Type 1–C rate adjustment means a
rate adjustment described in § 3030.506.
(k) Type 2 rate adjustment means a
rate adjustment described in § 3030.507.
(l) Type 3 rate adjustment means a
rate adjustment described in § 3030.508.
(m) * * *
(1) In the case of a Type 1–A or Type
1–B rate adjustment, the percentage
calculated pursuant to § 3030.526; and
(2) In the case of a Type 1–C rate
adjustment, the percentage calculated
pursuant to § 3030.527.
■ 99. Amend newly redesignated
§ 3030.504 by revising paragraph (c) to
read as follows:
§ 3030.504
general.
Type 1–A rate adjustment—in
*
*
*
*
*
(c) A Type 1–A rate adjustment for
any class that is less than the applicable
annual limitation results in unused rate
adjustment authority associated with
that class. Part or all of the unused rate
adjustment authority may be used in a
subsequent rate adjustment for that
class, subject to the expiration terms in
§ 3030.526(e).
■ 100. Amend newly redesignated
§ 3030.506 by revising paragraph (b)(1)
to read as follows:
§ 3030.506
general.
Type 1–C rate adjustment—in
*
*
*
*
*
(b)(1) Except as provided in paragraph
(b)(2) of this section, a Type 1–C rate
adjustment may generate unused rate
adjustment authority, as described in
§ 3030.527.
*
*
*
*
*
■ 101. Amend newly redesignated
§ 3030.511 by revising paragraphs (b)(1)
and (2), (d), and (k) to read as follows:
§ 3030.511 Proceedings for Type 1–A,
Type 1–B, and Type 1–C rate adjustment
filings.
khammond on DSKJM1Z7X2PROD with RULES2
*
*
*
*
*
(b) * * *
(1) Whether the planned rate
adjustments measured using the formula
established in § 3030.523(c) are at or
below the annual limitation calculated
under § 3030.521 or § 3030.522, as
applicable; and
(2) Whether the planned rate
adjustments measured using the formula
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
established in § 3030.523(c) are at or
below the limitation established in
§ 3030.529.
*
*
*
*
*
(d) Within 14 days of the conclusion
of the public comment period the
Commission will determine, at a
minimum, whether the planned rate
adjustments are consistent with the
annual limitation calculated under
§ 3030.521 or § 3030.522, as applicable,
the limitation set forth in § 3030.529,
and 39 U.S.C. 3626, 3627, and 3629 and
issue an order announcing its findings.
*
*
*
*
*
(k) A Commission finding that a
planned Type 1–A, Type 1–B, or Type
1–C rate adjustment is in compliance
with the annual limitation calculated
under § 3030.521 or § 3030.522, as
applicable; the limitation set forth in
§ 3030.529; and 39 U.S.C. 3626, 3627,
and 3629 is decided on the merits. A
Commission finding that a planned
Type 1–A, Type 1–B, or Type 1–C rate
adjustment does not contravene other
policies of 39 U.S.C. chapter 36,
subchapter I is provisional and subject
to subsequent review.
■ 102. Amend newly redesignated
§ 3030.512 by revising paragraphs (b)(1),
(3), and (4), (b)(9)(ii), and (e) to read as
follows:
§ 3030.512 Contents of notice of rate
adjustment.
*
*
*
*
*
(b) * * *
(1) The annual limitation calculated
as required by § 3030.521 or § 3030.522,
as appropriate. This information must
be supported by workpapers in which
all calculations are shown and all input
values, including all relevant CPI–U
values, are listed with citations to the
original sources.
*
*
*
*
*
(3) The percentage change in rates for
each class of mail calculated as required
by § 3030.523. This information must be
supported by workpapers in which all
calculations are shown and all input
values, including current rates, new
rates, and billing determinants, are
listed with citations to the original
sources.
(4) The amount of new unused rate
adjustment authority, if any, that will be
generated by the rate adjustment
calculated as required by § 3030.526 or
§ 3030.527, as applicable. All
calculations are to be shown with
citations to the original sources. If new
unused rate adjustment authority will
be generated for a class of mail that is
not expected to cover its attributable
costs, the Postal Service must provide
PO 00000
Frm 00045
Fmt 4701
Sfmt 4700
9657
the rationale underlying this rate
adjustment.
*
*
*
*
*
(9) * * *
(ii) Whether the Postal Service has
excluded the rate incentive from the
calculation of the percentage change in
rates under § 3030.523(e) or § 3030.524.
*
*
*
*
*
(e) The notice of rate adjustment shall
identify for each affected class how
much existing unused rate adjustment
authority is used in the planned rates
calculated as required by § 3030.528. All
calculations are to be shown, including
citations to the original sources.
*
*
*
*
*
■ 103. Amend newly redesignated
§ 3030.520 by revising paragraphs (b)
and (d)(2) to read as follows:
§ 3030.520 Calculation of maximum rate
adjustment.
*
*
*
*
*
(b) Type 1–A and Type 1–B rate
adjustments are subject to an inflationbased annual limitation computed using
CPI–U values as detailed in
§§ 3030.521(a) and 3030.522(a).
*
*
*
*
*
(d) * * *
(2) For a Type 1–B notice of rate
adjustment, the annual limitation for the
class plus the unused rate adjustment
authority for the class that the Postal
Service elects to use, subject to the
limitation under § 3030.529.
*
*
*
*
*
■ 104. Amend newly redesignated
§ 3030.523 by revising paragraph (e)(1)
to read as follows:
§ 3030.523 Calculation of percentage
change in rates.
*
*
*
*
*
(e) * * *
(1) Rate incentives may be excluded
from a percentage change in rates
calculation. If the Postal Service elects
to exclude a rate incentive from a
percentage change in rates calculation,
the rate incentive shall be treated in the
same manner as a rate under a
negotiated service agreement (as
described in § 3030.524).
*
*
*
*
*
■ 105. Amend newly redesignated
§ 3030.524 by revising paragraph (a) to
read as follows:
§ 3030.524 Treatment of volume
associated with negotiated service
agreements and rate incentives that are not
rates of general applicability.
(a) Mail volumes sent at rates under
a negotiated service agreement or a rate
incentive that is not a rate of general
applicability are to be included in the
E:\FR\FM\19FER2.SGM
19FER2
9658
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
calculation of percentage change in rates
under § 3030.523 as though they paid
the appropriate rates of general
applicability. Where it is impractical to
identify the rates of general applicability
(e.g., because unique rate categories are
created for a mailer), the volumes
associated with the mail sent under the
terms of the negotiated service
agreement or the rate incentive that is
not a rate of general applicability shall
be excluded from the calculation of
percentage change in rates.
*
*
*
*
*
■ 106. Revise newly redesignated
§ 3030.525 to read as follows:
§ 3030.525 Limitation on application of
unused rate adjustment authority.
Unused rate adjustment authority may
only be applied after applying the
annual limitation calculated pursuant to
§ 3030.521 or § 3030.522.
■ 107. Amend newly redesignated
§ 3030.526 by revising paragraphs (b)
and (c)(2) to read as follows:
§ 3030.526 Calculation of unused rate
adjustment authority for Type 1–A and Type
1–B rate adjustments.
*
*
*
*
*
(b) When notices of Type 1–A or Type
1–B rate adjustments are filed 12
months apart or less, annual unused rate
adjustment authority will be calculated.
Annual unused rate adjustment
authority for a class is equal to the
difference between the annual
limitation calculated pursuant to
§ 3030.521 or § 3030.522 and the
percentage change in rates for the class
calculated pursuant to § 3030.523(b)(1).
(c) * * *
(2) Interim unused rate adjustment
authority is equal to the Base Average
applicable to the second notice of rate
adjustment (as developed pursuant to
§ 3030.521(b)) divided by the Recent
Average utilized in the first notice of
rate adjustment (as developed pursuant
to § 3030.521(b)) and subtracting 1 from
the quotient. The result is expressed as
a percentage.
*
*
*
*
*
■ 108. Amend newly redesignated
§ 3030.527 by revising paragraphs (a),
(c), and (d) to read as follows:
khammond on DSKJM1Z7X2PROD with RULES2
§ 3030.527 Calculation of unused rate
adjustment authority for Type 1–C rate
adjustments.
(a) For a notice of Type 1–C rate
adjustment, unused rate adjustment
authority for a class is calculated in two
steps. First, the difference between the
annual limitation calculated pursuant to
§ 3030.521 or § 3030.522 for the most
recent notice of Type 1–A or Type 1–B
rate adjustment and the percentage
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
change in rates for the class calculated
pursuant to § 3030.523(b)(2) is
calculated. Second, the unused rate
adjustment authority generated in the
most recent Type 1–A or Type 1–B rate
adjustment is subtracted from that
result.
*
*
*
*
*
(c) Unused rate adjustment authority
generated under paragraph (a) of this
section for a class shall be added to the
unused rate adjustment authority
generated in the most recent notice of
Type 1–A rate adjustment on the
schedule maintained under
§ 3030.526(f). For purposes of
§ 3030.528, the unused rate adjustment
authority generated under paragraph (a)
of this section for a class shall be
deemed to have been added to the
schedule maintained under
§ 3030.526(f) on the same date as the
most recent notice of Type 1–A or Type
1–B rate adjustment.
(d) Unused rate adjustment authority
generated under paragraph (a) of this
section shall be subject to the limitation
under § 3030.529, regardless of whether
it is used alone or in combination with
other existing unused rate adjustment
authority.
■ 109. Amend newly redesignated
§ 3030.530 by revising paragraph (b) to
read as follows:
■
§ 3030.530
■
De minimis rate increases.
*
*
*
*
*
(b) No unused rate adjustment
authority will be added to the schedule
of unused rate adjustment authority
maintained under § 3030.526(f) as a
result of a de minimis rate increase.
*
*
*
*
*
■ 110. Revise newly redesignated
§ 3030.562 to read as follows:
§ 3030.562
Supplemental information.
The Commission may require the
Postal Service to provide clarification of
its request or to provide information in
addition to that called for by § 3030.561
in order to gain a better understanding
of the circumstances leading to the
request or the justification for the
specific rate adjustments requested.
■ 111. Amend newly redesignated
§ 3030.563 by revising paragraph (b) to
read as follows:
§ 3030.563 Treatment of unused rate
adjustment authority.
*
*
*
*
*
(b) Pursuant to an exigent request, rate
adjustments may use existing unused
rate adjustment authority in amounts
greater than the limitation described in
§ 3030.528 of this subpart.
*
*
*
*
*
PO 00000
Frm 00046
Fmt 4701
Sfmt 4700
112. Amend newly redesignated
§ 3030.565 by revising paragraphs (b)
and (c) to read as follows:
§ 3030.565 Special procedures applicable
to exigent requests.
*
*
*
*
*
(b) The Commission will hold a
public hearing on the Postal Service
request. During the public hearing,
responsible Postal Service officials will
appear and respond under oath to
questions from the Commissioners or
their designees addressing previously
identified aspects of the Postal Service’s
request and the supporting information
provided in response to the topics
specified in § 3010.561 of this chapter.
(c) Interested persons will be given an
opportunity to submit to the
Commission suggested relevant
questions that might be posed during
the public hearing. Such questions, and
any explanatory materials submitted to
clarify the purpose of the questions,
should be filed in accordance with part
3010, subpart B, of this chapter and will
become part of the administrative record
of the proceeding.
*
*
*
*
*
PART 3040—PRODUCT LISTS AND
THE MAIL CLASSIFICATION
SCHEDULE
113. The authority for newly
redesignated part 3040 continues to read
as follows:
Authority: 39 U.S.C. 503; 3622; 3631;
3642; 3682.
114. Revise the heading to part 3040
to read as set forth above.
■ 115. Revise newly redesignated
§ 3040.102 to read as follows:
■
§ 3040.102
Product lists.
(a) Market dominant product list. The
market dominant product list shall be
published in the Federal Register at
appendix A to subpart A of part 3040—
Market Dominant Product List.
(b) Competitive product list. The
competitive product list shall be
published in the Federal Register at
appendix B to subpart A of part 3040—
Competitive Product List.
■ 116. Amend newly redesignated
§ 3040.181 by revising paragraph (b) to
read as follows:
§ 3040.181 Supporting justification for
material changes to product descriptions.
*
*
*
*
*
(b)(1) As to market dominant
products, explain why the changes are
not inconsistent with each requirement
of 39 U.S.C. 3622(d) and part 3030 of
this chapter; or
E:\FR\FM\19FER2.SGM
19FER2
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
(2) As to competitive products,
explain why the changes will not result
in the violation of any of the standards
of 39 U.S.C. 3633 and part 3035 of this
chapter.
*
*
*
*
*
■ 117. Amend newly redesignated
§ 3040.190 by revising paragraph (c)(1)
to read as follows:
§ 3040.190 Minor corrections to product
descriptions.
*
*
*
*
*
(c) * * *
(1) Explain why the proposed
corrections do not constitute material
changes to the product description for
purposes of § 3040.180;
*
*
*
*
*
§ 3045.16 Exemption from dollar amount
limitation.
PART 3045—RULES FOR MARKET
TESTS OF EXPERIMENTAL
PRODUCTS
*
118. The authority for newly
redesignated part 3045 continues to read
as follows:
■
Authority: 39 U.S.C. 3641.
119. Amend newly redesignated
§ 3045.3 by revising paragraphs (a)(1)(ii)
and (a)(2)(vi) and adding reserved
paragraph (b) to read as follows:
■
§ 3045.3
Contents of notice.
(a) * * *
(1) * * *
(ii) Establish that the introduction or
continued offering of the experimental
product will not create an unfair or
otherwise inappropriate competitive
advantage for the Postal Service or any
mailer, particularly in regard to small
business concerns, as defined in
§ 3010.101(t) of this chapter; and
*
*
*
*
*
(2) * * *
(vi) Includes a data collection plan for
the market test, including a description
of the specific data items to be collected.
The minimum data collection plan
requirements are described in § 3045.20.
(b) [Reserved]
■ 120. Revise newly redesignated
§ 3045.10 to read as follows:
khammond on DSKJM1Z7X2PROD with RULES2
§ 3045.10
Duration.
A market test may not exceed 24
months in duration unless the
Commission authorizes an extension
pursuant to a request filed by the Postal
Service under § 3045.11.
■ 121. Amend newly redesignated
§ 3045.15 by revising paragraphs (a) and
(b) to read as follows:
§ 3045.15
Dollar amount limitation.
(a) The Consumer Price Index used for
calculations under this part is the CPI–
VerDate Sep<11>2014
18:20 Feb 18, 2020
Jkt 250001
U index, as specified in §§ 3030.521(a)
and 3030.522(a) of this chapter.
(b) An experimental product may only
be tested if total revenues that are
anticipated or received by the Postal
Service do not exceed $10 Million in
any fiscal year, as adjusted for the
change in the CPI–U index, as specified
in paragraph (d) of this section ($10
Million Adjusted Limitation). Total
revenues anticipated or received may
exceed the $10 Million Adjusted
Limitation in any fiscal year if an
exemption is granted pursuant to
§ 3045.16.
*
*
*
*
*
■ 122. Amend newly redesignated
§ 3045.16 by revising paragraph (f)(3) to
read as follows:
*
*
*
*
(f) * * *
(3) Estimate the additional revenue
that is anticipated by the Postal Service
for each fiscal year remaining on the
market test, including any extension
period granted by the Commission in
accordance with § 3045.11(c), and
provide available supporting
documentation; and
*
*
*
*
*
■ 123. Revise newly redesignated
§ 3045.17 to read as follows:
§ 3045.17
Prevention of market disruption.
Notwithstanding the $10 Million
Adjusted Limitation or any adjustment
granted pursuant to § 3045.16, the
Commission may limit the amount of
revenues the Postal Service may obtain
from any particular geographic market
as necessary to prevent the creation of
an unfair or otherwise inappropriate
competitive advantage for the Postal
Service or any mailer, particularly in
regard to small business concerns, as
defined in § 3010.101(t) of this chapter.
■ 124. Amend newly redesignated
§ 3045.18 by revising paragraphs (a),
(d)(1)(i)(B), and (d)(2)(i)(B) to read as
follows:
§ 3045.18 Request to add a nonexperimental product or price category
based on an experimental product to the
product list.
(a) If the Postal Service seeks to add
a non-experimental product or price
category based on a former or current
experimental product to the market
dominant or competitive product list,
the Postal Service shall file a request,
pursuant to 39 U.S.C. 3642 and part
3040, subpart B of this chapter, to add
a non-experimental product or price
category to the applicable product list.
*
*
*
*
*
PO 00000
Frm 00047
Fmt 4701
Sfmt 4700
9659
(d) * * *
(1)(i) * * *
(B) The market test is expected to
exceed any authorized limitation
specified in §§ 3045.15 and 3045.16
during any fiscal year, whichever is
earlier.
* * *
(2)(i) * * *
(B) The market test is expected to
exceed any authorized limitation
specified in §§ 3035.15 and 3035.16
§§ 3045.15 and 3045.16 during any
fiscal year, whichever is earlier.
*
*
*
*
*
■ 125. Amend newly redesignated
§ 3045.20 by revising paragraph (a)
introductory text to read as follows:
§ 3045.20 Data collection and reporting
requirements.
(a) A notice of a market test shall
include a data collection plan for the
market test as required by
§ 3045.3(a)(2)(vi). Data collection plans
shall include, at a minimum:
PART 3055—SERVICE
PERFORMANCE AND CUSTOMER
SATISFACTION REPORTING
126. The authority for part 3055
continues to read as follows:
■
Authority: 39 U.S.C. 503, 3622(a), 3652(d)
and (e); 3657(c).
■
127. Revise 3055.1 to read as follows:
§ 3055.1 Annual reporting of service
performance achievements.
For each market dominant product
specified in the Mail Classification
Schedule in part 3040, appendix A to
subpart A of part 3040 of this chapter,
the Postal Service shall file a report as
part of the section 3652 report
addressing service performance
achievements for the preceding fiscal
year.
■ 128. Revise § 3055.30 to read as
follows:
§ 3055.30 Periodic reporting of service
performance achievements.
For each market dominant product
specified in the Mail Classification
Schedule in part 3040, appendix A to
subpart A of part 3040 of this chapter,
the Postal Service shall file a Quarterly
Report with the Commission addressing
service performance achievements for
the preceding fiscal quarter (within 40
days of the close of each fiscal quarter).
■ 129. Revise § 3055.90 to read as
follows:
§ 3055.90 Reporting of customer
satisfaction.
For each market dominant product
specified in the Mail Classification
E:\FR\FM\19FER2.SGM
19FER2
9660
Federal Register / Vol. 85, No. 33 / Wednesday, February 19, 2020 / Rules and Regulations
Schedule in part 3040, appendix A to
subpart A of part 3040 of this chapter,
the Postal Service shall file a report as
part of the section 3652 report, unless a
more frequent filing is specifically
indicated, addressing customer
satisfaction achievements for the
preceding fiscal year. The report shall
include, at a minimum, the specific
reporting requirements presented in
§§ 3055.91 through 3055.92.
Authority: 39 U.S.C. 503, 2011, 3633,
3634.
PART 3060—ACCOUNTING
PRACTICES AND TAX RULES FOR
THE THEORETICAL COMPETITIVE
PRODUCTS ENTERPRISE
■
130. The authority for part 3060
continues to read as follows:
■
131. Revise § 3060.21 to read as
follows:
§ 3060.21
Income report.
The Postal Service shall file an
Income Report in the form and content
of table 1 to § 3060.21.
TABLE 1 TO § 3060.21—COMPETITIVE PRODUCTS INCOME STATEMENT—PRC FORM CP–01
[$ in 000s]
Revenue:
(1) Mail and Services Revenues ..............................................................
(2) Investment Income ..............................................................................
(3) Total Competitive Products Revenue .................................................
Expenses:
(4) Volume-Variable Costs .......................................................................
(5) Product Specific Costs ........................................................................
(6) Incremental Inframarginal Costs .........................................................
(7) Total Competitive Products Attributable Costs ...................................
(8) Net Contribution Competitive Products Market Tests ........................
(9) Net Income Before Institutional Cost Contribution .............................
(10) Required Institutional Cost Contribution ...........................................
(11) Net Income (Loss) Before Tax ..........................................................
(12) Assumed Federal Income Tax ..........................................................
(13) Net Income (Loss) After Tax .............................................................
FY 20xx
FY 20xx–1
Change
from
SPLY
Percent
change
from SPLY
$x,xxx
xxx
x,xx
........................
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
$x,xxx
xxx
x,xxx
........................
........................
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
x,xxx
$xxx
xx
xxx
........................
........................
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xx.x
xx.x
xx.x
........................
........................
xx.x
xx.x
xx.x
xx.x
xx.x
........................
x.x.x
xx.x
xx.x
xx.x
Line (1): Total revenues from Competitive Products volumes and Ancillary Services.
Line (2): Income provided from investment of surplus Competitive Products revenues.
Line (3): Sum total of revenues from Competitive Products volumes, services, and investments.
Line (4): Total Competitive Products volume-variable costs as shown in the Cost and Revenue Analysis (CRA) report.
Line (5): Total Competitive Products product-specific costs as shown in the CRA report.
Line (6): Inframarginal costs calculated as part of total Competitive Products incremental costs as shown in ACR Library Reference ‘‘Competitive Product Incremental and Group Specific Costs’’ (Currently NP10).
Line (7): Sum total of Competitive Products costs (sum of lines 4, 5, and 6).
Line (8): Net Contribution Competitive Products Market Tests as shown in the Annual Compliance Report.
Line (9): Difference between Competitive Products total revenues and attributable costs and Market Tests Contributions (line 3 less line 7 plus
line 8).
Line (10): Minimum amount of Institutional cost contribution required under 39 CFR 3035.7 of this chapter.
Line (11): Line 9 less line 10.
Line (12): Total assumed Federal income tax as calculated under 39 CFR 3060.40.
Line (13): Line 11 less line 12.
CHAPTER III—[AMENDED]
132. In chapter III of title 39, revise all
references to ‘‘Web site’’ to read
‘‘website.’’
■
Ruth Ann Abrams,
Acting Secretary.
[FR Doc. 2020–01055 Filed 2–18–20; 8:45 am]
By the Commission.
khammond on DSKJM1Z7X2PROD with RULES2
BILLING CODE 7710–FW–P
VerDate Sep<11>2014
19:26 Feb 18, 2020
Jkt 250001
PO 00000
Frm 00048
Fmt 4701
Sfmt 9990
E:\FR\FM\19FER2.SGM
19FER2
]]>Agencies
[Federal Register Volume 85, Number 33 (Wednesday, February 19, 2020)]
[Rules and Regulations]
[Pages 9614-9660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01055]
[[Page 9613]]
Vol. 85
Wednesday,
No. 33
February 19, 2020
Part III
Postal Regulatory Commission
-----------------------------------------------------------------------
39 CFR Chapter III
Reorganization of Postal Regulatory Commission Rules; Final Rule
Federal Register / Vol. 85 , No. 33 / Wednesday, February 19, 2020 /
Rules and Regulations
[[Page 9614]]
-----------------------------------------------------------------------
POSTAL REGULATORY COMMISSION
39 CFR Chapter III
[Docket No. RM2019-13; Order No. 5407]
Reorganization of Postal Regulatory Commission Rules
AGENCY: Postal Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission is adopting final rules that reorganize the
order of appearance of its regulations and revise multiple sections
therein.
DATES: This rule is effective on April 20, 2020.
ADDRESSES: For additional information, Order No. 5407 can be accessed
electronically through the Commission's website at https://www.prc.gov.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Relevant Statutory Requirements
II. Background
III. Basis and Purpose of Final Rules
IV. Implementation of the Final Rules
Final Rules
I. Relevant Statutory Requirements
Section 503 of title 39 of the United States Code authorizes the
Commission to ``promulgate rules and regulations and establish
procedures, subject to chapters 5 and 7 of title 5, and take any other
action they deem necessary and proper to carry out their functions and
obligations to the government of the United States and the people as
prescribed under this title.'' 39 U.S.C. 503.
The rules and regulations previously adopted by the Commission
cover a broad spectrum of subjects and activities subject to statutory
requirements, including standards of conduct for Commission employees
(39 U.S.C. 503, 504, and Pub. L. 93-579); access to information in the
possession of the Commission (5 U.S.C. 552; 39 U.S.C. 503, and 504(g));
rules of practice and procedure (5 U.S.C. 553, 554; 39 U.S.C. 404(d),
404a, 503, 504(f), 3661, and 3662); and rules applicable to Postal
Service rates, products and services, and reports (39 U.S.C. 2011,
3622, 3631, 3633, 3644, 3641, 3642, 3651, 3652, and 3682).
II. Background
Shortly after its creation in 1970, the Commission's predecessor,
the Postal Rate Commission, adopted rules governing practice before
it.\1\ Since most proceedings were at that time conducted as trial-type
hearings, referred to as hearings on the record, most of the rules of
practice addressed practices tailored to administrative litigation.
Only one of the original rules of practice addressed procedures in
rulemaking proceedings. 39 CFR 3001.41. The rules of practice were all
contained in 39 CFR part 3001. In the years following adoption of the
original rules of practice, the Commission added new subparts to 39 CFR
part 3001 that either supplemented the original rules or adopted rules
applicable to additional regulatory responsibilities.\2\
---------------------------------------------------------------------------
\1\ Postal Rate Commission, Rules of Practice and Procedure, 36
FR 396 (January 12, 1971).
\2\ E.g., 39 CFR part 3001, subpart F, Rules Applicable to the
Filing of Testimony by Intervenors, 38 FR 7536 (March 22, 1973); 39
CFR part 3001, subpart L, Rules Applicable to Negotiated Service
Agreements, 69 FR 7574 (February 18, 2004).
---------------------------------------------------------------------------
In 2006, Congress enacted the Postal Accountability and Enhancement
Act, Pub. L. 109-435, 120 Stat. 3198 (2006) (PAEA). The PAEA made
significant changes to the regulatory framework within which the
Commission (renamed the Postal Regulatory Commission) exercised
oversight of the Postal Service's rates and services. The PAEA also
streamlined the process for approval of price increases by replacing
the requirement for trial-type hearings on the record with notice and
comment procedures closely analogous to informal rulemaking
proceedings. These statutory changes required significant changes to
the Commission's regulations, including its rules of practice.
The demands of implementing the far-reaching changes mandated by
the PAEA in a timely manner prevented the Commission from undertaking a
more comprehensive review and update of its rules. In their current
form, the Commission's rules and regulations are not presented in any
logical order or with a grouping of similar materials to facilitate
their application.
III. Basis and Purpose of Final Rules
The proposed amendments to the rules of practice will codify
existing Commission practice and make changes needed to make
proceedings more efficient. Implementation of these changes should also
enhance the ability of participants in Commission proceedings to
participate more efficiently and effectively. The reorganization of the
Commission's remaining regulations will accommodate changes to the
rules of practice and will facilitate the location of relevant
regulations.
The Commission's order organizes rules and regulations in six
subchapters. Subchapter A to 39 CFR chapter III provides for the
organization of the Commission and establishes standards of conduct for
Commission employees. Subchapter B to 39 CFR chapter III contains rules
governing access to information in the Commission's possession.
Subchapter C to 39 CFR chapter III contains generally applicable rules
of practice. Subchapter D to 39 CFR chapter III contains special rules
of practice for specific types of Commission proceedings. Subchapter E
to 39 CFR chapter III contains regulations governing Postal Service
products and services. Subchapter F to 39 CFR chapter III contains
regulations governing periodic reports by the Postal Service, its
accounting practices, and its treatment of taxes.
The generally applicable rules of practice in subchapter C to 39
CFR chapter III are grouped in subparts containing related rules and
should make the rules easier to use by regular participants in
Commission proceedings and by those who participate less frequently.
Subpart A to 39 CFR part 3010 contains generally applicable rules, such
as rules that establish definitions, rules that govern the
establishment of dockets, and rules that establish how time periods are
to be computed. Subpart B to 39 CFR part 3010 addresses filing
requirements. Subpart C to 39 CFR part 3010 governs participation in
Commission proceedings. Subpart D to 39 CFR part 3010 establishes
requirements for notice, motions, and Commission information requests.
Subpart E to 39 CFR part 3010 establishes procedures for notice and
comment rulemaking proceedings. Subpart F to 39 CFR part 3010
establishes procedures for on-the-record hearings.
IV. Implementation of the Final Rules
The Commission is delaying the effective date of these changes
until April 20, 2020. This should facilitate the transition from the
Commission's existing rules and regulations to the reorganized and
revised rules by providing the Postal Service and interested persons an
opportunity to familiarize themselves with the changes prior to
implementation. It should also prevent unnecessary confusion in several
major pending proceedings, such as the annual compliance review
proceeding currently underway in Docket No. ACR2019, by delaying
implementation of the revised and reorganized rules until after those
[[Page 9615]]
proceedings are either concluded or have gone before the Commission for
decision. Further Commission guidance regarding implementation of the
revised and reorganized rules will be provided as necessary in
proceedings that are still in progress as of April 20, 2020.
Final Rules
List of Subjects
39 CFR Part 3000
Conflict of interests.
39 CFR Part 3001
Administrative practice and procedure, Confidential business
information, Freedom of information, Sunshine Act.
39 CFR Part 3002
Organization and functions (Government agencies), Seals and
insignia.
39 CFR Part 3003
Privacy.
39 CFR Part 3004
Administrative practice and procedure, Freedom of information,
Reporting and recordkeeping requirements.
39 CFR Part 3005
Administrative practice and procedure, Confidential business
information, Postal Service, Reporting and recordkeeping requirements.
39 CFR Part 3007
Administrative practice and procedure, Confidential business
information.
39 CFR Part 3008
Administrative practice and procedure, Courts.
39 CFR Parts 3010, 3020, and 3035
Administrative practice and procedure, Postal Service.
39 CFR Parts 3015, 3025, 3030, and 3031
Administrative practice and procedure.
39 CFR Part 3017
Administrative practice and procedure, Postal Service, Treaties.
39 CFR Part 3032
Administrative practice and procedure, Postal Service, Trademarks.
39 CFR Part 3050
Administrative practice and procedure, Postal Service, Reporting
and recordkeeping requirements.
39 CFR Part 3055 and 3060
Administrative practice and procedure, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, the Commission amends
chapter III of title 39 of the Code of Federal Regulations as follows:
0
1. Under the authority of 39 U.S.C. 503, redesignate the parts in the
``Current part'' column as the parts in the ``New part'' column as
shown in the following table:
------------------------------------------------------------------------
Current part New part
------------------------------------------------------------------------
3035......................................................... 3045
3020......................................................... 3040
3015......................................................... 3035
3030......................................................... 3022
3010......................................................... 3030
3025......................................................... 3021
3017......................................................... 3025
3032......................................................... 3024
3031......................................................... 3023
3005......................................................... 3013
3008......................................................... 3012
3007......................................................... 3011
3001......................................................... 3010
3004......................................................... 3006
3003......................................................... 3005
3000......................................................... 3001
3002......................................................... 3000
------------------------------------------------------------------------
Subchapter A--The Commission
0
2. Designate newly redesignated parts 3000 and 3001 as subchapter A
under the heading set forth above.
Subchapter B--Seeking Information From the Commission
0
3. Designate newly redesignated parts 3005 and 3006 as subchapter B
under the heading set forth above.
Subchapter C--General Rules of Practice for Proceedings Before the
Commission
0
4. Designate newly redesignated parts 3010 through 3013 as subchapter C
under the heading set forth above.
Subchapter D--Special Rules of Practice for Specific Proceeding
Types
0
5. Designate newly redesignated parts 3020 through 3025 as subchapter D
under the heading set forth above.
Subchapter E--Regulations Governing Market Dominant Products,
Competitive Products, Product Lists, and Market Tests
0
6. Designate newly redesignated parts 3030 through 3045 as subchapter E
under the heading set forth above.
Subchapter F--Periodic Reporting, Accounting Practices, and Tax
Rules
0
7. Designate parts 3050 through 3099 as subchapter F under the heading
set forth above.
PART 3040--PRODUCT LISTS
0
8. Under the authority of 39 U.S.C. 503, for newly redesignated part
3040, redesignate Sec. Sec. 3020.1 through 3020.112 as Sec. Sec.
3040.101 through 3040.212, respectively.
PART 3035--REGULATION OF RATES FOR COMPETITIVE PRODUCTS
0
9. Under the authority of 39 U.S.C. 503, for newly redesignated part
3035, redesignate Sec. Sec. 3015.1 through 3015.7 as Sec. Sec.
3035.101 through 3035.107, respectively.
PART 3030--REGULATION OF RATES FOR MARKET DOMINANT PRODUCTS
0
10. Under the authority of 39 U.S.C. 503, for newly redesignated part
3030, redesignate Sec. Sec. 3010.1 through 3010.66 as Sec. Sec.
3030.501 through 3030.566, respectively.
PART 3025--PROCEDURES RELATED TO COMMISSION VIEWS
0
11. Under the authority of 39 U.S.C. 503, for newly redesignated part
3025, redesignate Sec. Sec. 3017.1 through 3017.5 as Sec. Sec.
3025.101 through 3025.105, respectively.
PART 3005--PRIVACY ACT RULES
0
12. Under the authority of 39 U.S.C. 503, for newly redesignated part
3005, redesignate Sec. Sec. 3003.1 through 3003.7 as Sec. Sec.
3005.101 through 3005.107, respectively.
PART 3001--STANDARDS OF CONDUCT
0
13. Under the authority of 39 U.S.C. 503, for newly redesignated part
3001, redesignate Sec. Sec. 3000.5 through 3000.55 as Sec. Sec.
3001.105 through 3001.155, respectively.
PART 3000--ORGANIZATION
0
14. Under the authority of 39 U.S.C. 503, for newly redesignated part
3000, redesignate Sec. Sec. 3002.1 through 3002.16 as Sec. Sec.
3000.101 through 3000.116, respectively.
[[Page 9616]]
PART 3000--THE COMMISSION AND ITS OFFICES
0
15. The authority for newly redesignated part 3000 continues to read
as follows:
Authority: 39 U.S.C. 503; 5 U.S.C. 552.
0
16. Revise heading for newly redesignated part 3000 to read as set
forth above.
0
17. Amend newly redesignated Sec. 3000.102 by revising paragraph (b)
to read as follows:
Sec. 3000.102 Statutory functions.
* * * * *
(b) Public participation. Interested persons may participate in
proceedings before the Commission as described in part 3010, subpart C
of this chapter. Pursuant to 39 U.S.C. 3662(a) and part 3022 of this
chapter, any interested person may lodge rate and service complaints
with the Commission. Persons served by a post office that the Postal
Service decides to close or consolidate may appeal such determinations
in accordance with 39 U.S.C. 404(d) and part 3021 of this chapter.
0
18. Amend newly redesignated Sec. 3000.110 by revising paragraphs (b)
and (c) to read as follows:
Sec. 3000.110 The Commission and its offices.
* * * * *
(b) The Chairman and Vice Chairman. The Chairman has the
administrative responsibility for assigning the business of the
Commission to the other Commissioners and to the offices and employees
of the Commission. The Chairman has the administrative duty to preside
at the meetings and sessions of the Commission and to represent the
Commission in matters specified by statute or executive order or as the
Commission directs. The Commission shall elect annually a member of the
Commission to serve as Vice Chairman of the Commission for a term of
one year or until a successor is elected. In case of a vacancy in the
Office of the Chairman of the Commission, or in the absence or
inability of the Chairman to serve, the Vice Chairman, unless otherwise
directed by the Chairman, shall have the administrative
responsibilities and duties of the Chairman during the period of
vacancy, absence, or inability.
(c) Commission offices. The Commission's offices are located at 901
New York Avenue NW, Suite 200, Washington, DC 20268-0001. On these
premises, the Commission maintains offices for Commissioners and staff;
a docket room where documents may be filed with the Commission pursuant
to part 3010, subpart B of this chapter and examined by interested
persons, a public reading room where the Commission's public records
are available for inspection and copying; and a hearing room where
formal evidentiary proceedings are held on matters before the
Commission. The Commission also maintains an electronic reading room
accessible through the internet, on its website at https://www.prc.gov.
0
19. Amend newly redesignated Sec. 3000.112 by revising paragraph (b)
introductory text to read as follows:
Sec. 3000.112 Office of Accountability and Compliance.
* * * * *
(b) The Office of Accountability and Compliance provides the
analytic support to the Commission for the review of rate changes,
negotiated service agreements, classification of products, the Annual
Compliance Determination, the Annual Report, changes to postal
services, post office closings and other issues which come before the
Commission. The functional areas of expertise within this office are:
* * * * *
0
20. Amend newly redesignated Sec. 3000.115 by revising paragraph
(b)(2) to read as follows:
Sec. 3000.115 Office of Public Affairs and Government Relations.
* * * * *
(b) * * *
(2) Consumer Affairs. As the principal source of outreach and
education to the public, the Office of Public Affairs and Government
Relations provides information to postal consumers and assists in the
resolution of rate and service inquiries from members of the public
pursuant to part 3023 of this chapter. It supports the impartial
resolution of those inquiries through use of the Postal Service's
Office of Consumer Advocate and reports the results to the Commission.
The Office of Public Affairs and Government Relations also utilizes
procedures available under the Commission's rules and applicable law to
assist relevant stakeholders in appeals of Postal Service decisions to
close or consolidate individual post offices; maintains a record of
service-related inquiries; and posts calendar updates and other public
information on the Commission's website.
* * * * *
PART 3001--EMPLOYEE STANDARDS OF CONDUCT
0
21. The authority for newly redesignated part 3001 continues to read
as follows:
Authority: 39 U.S.C. 503, 504, 3603; E.O. 12674, 54 FR 15159, 3
CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 56 FR 42547, 3
CFR, 1990 Comp., p. 396; 5 CFR parts 2634 and 2635.
0
22. Revise the heading of newly redesignated part 3001 to read as set
forth above.
0
23. Amend newly redesignated Sec. 3001.105 by revising paragraph (b)
to read as follows:
Sec. 3001.105 Post-employment restrictions.
* * * * *
(b) No former employee of the Commission may within one year after
the individual's employment has ceased, practice before or act as an
attorney, expert witness, or representative in connection with any
proceeding or matter before the Commission that was under the official
responsibility of such individual, as defined in 18 U.S.C. 202(b),
while in the service of the Commission.
0
24. Amend newly redesignated Sec. 3001.150 by revising paragraph (b)
to read as follows:
Sec. 3001.150 Ex parte communications prohibited.
* * * * *
(b) Additional ex parte communications requirements, applicable to
specific docket types, are described in part 3012 of this chapter.
PART 3005--PRIVACY ACT RULES
0
25. The authority for newly redesignated part 3005 continues to read as
follows:
Authority: Privacy Act of 1974 (Pub. L. 93-579), 5 U.S.C. 552a.
0
26. Amend newly redesignated Sec. 3005.103 by revising paragraphs
(a)(1) through (3) and (c)(3) and (4) to read as follows:
Sec. 3005.103 Procedures for requesting inspection, copying, or
correction.
(a) * * *
(1) Wishes to know whether a Commission system of records contains
a record about the individual,
(2) Seeks access to a Commission record about the individual that
is maintained in a system of records (including the accounting of
disclosures), or
(3) Seeks to amend a record about the individual that is maintained
in a system of records, may file a written
[[Page 9617]]
request with the chief administrative officer of the Commission at the
Commission's current address (901 New York Avenue NW, Suite 200,
Washington, DC 20268-0001). The request should state on the outside of
the envelope and in the request that it is a Privacy Act request.
* * * * *
(c) * * *
(3) If accompanied by another individual, must sign a statement, if
requested by the chief administrative officer, authorizing discussion
of the individual's record in the presence of that individual;
(4) Who files a request by mail must include the individual's date
of birth, dates of employment at the Commission (if applicable), and
suitable proof of identity, such as a facsimile of a driver's license,
employee identification card, or Medicare card; and
* * * * *
PART 3006--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT
0
27. The authority for newly redesignated part 3006 continues to read
as follows:
Authority: 5 U.S.C. 552; 39 U.S.C. 503.
0
28. Amend newly redesignated Sec. 3006.1 by revising paragraphs (b)
and (c) to read as follows:
Sec. 3006.1 Purpose.
* * * * *
(b) Information required to be published or made available pursuant
to 5 U.S.C. 552(a)(1) and (a)(2) may be found in part 3000 of this
chapter, and on the Commission's website at https://www.prc.gov. The
Commission's guide to FOIA, all required FOIA indexes, and recent
annual FOIA reports are also available on the website.
(c) Section 3006.10 identifies records that the Commission has
determined to be public.
0
29. Amend newly redesignated Sec. 3006.2 by revising paragraph (b) to
read as follows:
Sec. 3006.2 Presumption of openness.
* * * * *
(b) It is the stated policy of the Commission that FOIA requests
shall be administered with a clear presumption of openness. The
Commission will only withhold information if it reasonably foresees
that disclosure would harm an interest protected by a FOIA exemption,
as enumerated in Sec. 3006.11, or disclosure is otherwise prohibited
by law.
* * * * *
0
30. Amend newly redesignated Sec. 3006.10 by revising paragraph (a)
introductory text to read as follows:
Sec. 3006.10 Public records.
(a) Except as provided in Sec. 3006.11 and in Sec. 3011.200 of
this chapter, the public records of the Commission include all
submissions and filings as follows:
* * * * *
0
31. Amend newly redesignated Sec. 3006.12 by revising paragraph (b) to
read as follows:
Sec. 3006.12 Reading room.
* * * * *
(b) The records available for public inspection and printing
include, for example, decisions; reports; opinions; orders; notices;
findings; determinations; statements of policy; copies of selected
records released under FOIA; indexes required to be maintained under
FOIA; and records described in Sec. 3006.10 relating to any matter or
proceeding before the Commission.
* * * * *
0
32. Amend newly redesignated Sec. 3006.30 by revising paragraphs (b),
(d) introductory text, (d)(2), and (e)(2) to read as follows:
Sec. 3006.30 Relationship among the Freedom of Information Act, the
Privacy Act, and the Commission's procedures for according appropriate
confidentiality.
* * * * *
(b) Requesting records subject to the Privacy Act. A request by an
individual for the individual's own records contained in a system of
records is governed by the Privacy Act. Release will first be
considered under the Privacy Act pursuant to part 3005 of this chapter.
However, if there is any record that the Commission need not release
under the Privacy Act, the Commission will also consider the request
under FOIA, and will release the record if FOIA requires it.
* * * * *
(d) Requesting a Postal Service record. The Commission maintains
custody of records that are both Commission and Postal Service records.
In all instances that the Postal Service submits materials to the
Commission that the Postal Service reasonably believes to be exempt
from public disclosure, the Postal Service shall follow the procedures
described in subpart B of part 3011 of this chapter.
* * * * *
(2) A request made pursuant to part 3011 of this chapter for
records designated as non-public by the Postal Service shall be
considered under the applicable standards set forth in that part.
(e) * * *
(2) A request made pursuant to part 3011 of this chapter for
records designated as non-public by a person other than the Postal
Service shall be considered under the applicable standards set forth in
that part.
0
33. Amend newly redesignated Sec. 3006.40 by revising paragraph (a)(6)
to read as follows:
Sec. 3006.40 Hard copy requests for records and for expedited
processing.
(a) * * *
(6) Identify the request category under Sec. 3006.51; and
* * * * *
0
34. Amend newly redesignated Sec. 3006.41 by revising paragraph (a)(4)
to read as follows:
Sec. 3006.41 Electronic requests for records and for expedited
processing.
(a) * * *
(4) Identify the request category under Sec. 3006.51; and
* * * * *
0
35. Amend newly redesignated Sec. 3006.43 by revising paragraph (f) to
read as follows:
Sec. 3006.43 Response to requests.
* * * * *
(f) Where a compelling need is not shown in an expedited request as
specified in Sec. 3006.41(b)(1), the Commission may grant requests for
expedited processing at its discretion.
0
36. Amend newly redesignated Sec. 3006.51 by revising paragraph (b) to
read as follows:
Sec. 3006.51 Fees--request category.
* * * * *
(b) Privacy Act. A request by an individual for the individual's
own records in a system of records will be charged fees as provided
under the Commission's Privacy Act regulations in part 3005 of this
chapter.
0
37. Amend newly redesignated Sec. 3006.52 by revising paragraphs (e)
introductory text and (e)(1) to read as follows:
Sec. 3006.52 Fees--general provisions.
* * * * *
(e) No requester will be charged a fee after any search or response
which occurs after the applicable time limits as described in
Sec. Sec. 3006.43 and 3006.44, unless:
(1) The Commission extends the time limit for its response due to
unusual circumstances, pursuant to Sec. 3006.45(a),
[[Page 9618]]
and the Commission completes its response within the extension of time
provided under that section; or
* * * * *
0
38. Amend newly redesignated Sec. 3006.53 by revising paragraph (b) to
read as follows:
Sec. 3006.53 Fee schedule.
* * * * *
(b) In addition to the fee waiver provisions of Sec. 3006.52(d),
fees may be waived at the discretion of the Commission.
0
39. Amend newly redesignated Sec. 3006.54 by revising paragraph (a)(2)
to read as follows:
Sec. 3006.54 Procedure for assessing and collecting fees.
(a) * * *
(2) When advance payment is required, the administrative time
limits prescribed in 5 U.S.C. 552(a)(6) (Sec. 3006.43) begin only
after such payment has been received.
* * * * *
0
40. Revise newly redesignated Sec. 3006.61 to read as follows:
Sec. 3006.61 Freedom of Information Act Public Liaison.
The Commission designates the Director of the Office of Public
Affairs and Government Relations or the individual's designee as the
FOIA Public Liaison who shall assist in the resolution of any dispute
between a requester and the Commission. The FOIA Public Liaison may be
contacted via email at [email protected] or telephone at 202-789-6800.
0
41. Amend newly redesignated Sec. 3006.70 by revising paragraphs (a)
through (c) to read as follows:
Sec. 3006.70 Submission of non-public materials by a person other
than the Postal Service.
(a) Overlap with treatment of non-public materials. Any person who
submits materials to the Commission (submitter) that the submitter
reasonably believes to be exempt from public disclosure shall follow
the procedures described in subpart B of part 3011 of this chapter.
(b) Notice of request. Except as provided in Sec. 3006.30(d), if a
FOIA request seeks materials designated as non-public materials, the
Commission will provide the submitter with notice of the request. The
Commission may also provide notice when it has reason to believe that
materials submitted by a person other than the Postal Service are
possibly exempt from disclosure and may fall within the scope of any
FOIA request.
(c) Objections to disclosure. A submitter may file written
objections to the request specifying all grounds for withholding the
information under FOIA within seven days of the date of the notice. If
the submitter fails to respond to the notice, the submitter will be
considered to have no objection, beyond those objections articulated in
its application for non-public treatment pursuant to Sec. 3011.201 of
this chapter, to the disclosure of the information.
* * * * *
0
42. Add new part 3007, consisting of Sec. 3007.100, to subchapter B to
read as follows:
PART 3007--COMMISSION MEETINGS
Authority: 39 U.S.C. 404(d); 503; 504; 3661.
Sec. 3007.100 Public access to Commission meetings.
(a) Definition. Commission meeting means the deliberations of at
least three Commissioners where such deliberations determine or result
in the joint conduct or disposition of official Commission business.
(b) Open Commission meetings. (1) Commissioners shall not jointly
conduct or dispose of agency business other than in accordance with
this section. Except as provided in paragraph (d) of this section,
every portion of every meeting of the Commission shall be open to
public observation.
(2) Members of the public may not participate in open meetings.
They may record the proceedings, provided they use battery-operated
recording devices at their seats. Cameras may be used by observers to
photograph proceedings, provided it is done from their seats and no
flash or lighting equipment is used. Persons may electronically record
or photograph a meeting, as long as such activity does not impede or
disturb the members of the Commission in the performance of their
duties, or members of the public attempting to observe, or to record or
photograph, the Commission meeting.
(c) Physical arrangements for open meetings. The Secretary shall be
responsible for seeing that ample space, sufficient visibility, and
adequate acoustics are provided for public observation of the
Commission meetings.
(d) Closed Commission meetings. Except in a case where the
Commission finds that the public interest requires otherwise, the
second sentence of paragraph (b)(1) of this section shall not apply to
any portion of a Commission meeting, and the requirements of paragraphs
(f) and (g) of this section shall not apply to any information
pertaining to such meeting otherwise required by this section to be
disclosed to the public, where the Commission properly determines that
such portion or portions of its meetings or the disclosure of such
information is likely to:
(1) Disclose matters that:
(i) Are specifically authorized under criteria established by an
Executive order to be kept secret in the interests of national defense
or foreign policy; and
(ii) Are in fact properly classified pursuant to such Executive
order.
(2) Relate solely to the internal personnel rules and practices of
the Commission;
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552), provided that such statute:
(i) Requires the matter to be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(4) Disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
(5) Involve accusing any person of a crime, or formally censuring
any person;
(6) Disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal privacy;
(7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would:
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source and, in the
case of a record compiled by a criminal law enforcement authority in
the course of a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, confidential
information furnished only by the confidential source;
(v) Disclose investigative techniques and procedures; or
(vi) Endanger the life or physical safety of law enforcement
personnel.
(8) Disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of an agency responsible for the regulation or supervision of
financial institutions;
[[Page 9619]]
(9) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed
Commission action, except that this paragraph (d)(9) shall not apply in
any instance where the Commission has already disclosed to the public
the content or nature of its proposed action, or where the Commission
is required by law to make such disclosure on its own initiative prior
to taking final Commission action on such proposal; or
(10) Specifically concern the Commission's issuance of a subpoena
or the Commission's participation in a civil action or appellate
proceeding, an action in a foreign court or international tribunal, or
an arbitration, or the initiation, conduct or disposition by the
Commission of a particular case of formal Commission adjudication
pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a
determination on the record after opportunity for a hearing.
(e) Procedures for closing meetings. (1) Action under paragraph (d)
of this section shall be taken only when three Commissioners vote to
take such action. A separate vote of the Commissioners shall be taken
with respect to each agency meeting a portion or portions of which are
proposed to be closed to the public pursuant to paragraph (d) of this
section, or with respect to any information which is proposed to be
withheld under paragraph (d) of this section. A single vote may be
taken with respect to a series of meetings, a portion or portions of
which are proposed to be closed to the public, or with respect to any
information concerning such series of meetings, so long as each meeting
in such series involves the same particular matters and is scheduled to
be held no more than 30 days after the initial meeting in such series.
The vote of each Commissioner participating in such vote shall be
recorded and no proxies shall be allowed.
(2) Whenever any person whose interests may be directly affected by
a portion of a meeting requests that the Commission close such portion
to the public for any of the reasons referred to in paragraph (d)(5),
(6), or (7) of this section, the Commission upon request of any one of
its members, shall vote by recorded vote whether to close such meeting.
(3) Within one day of any vote taken pursuant to paragraph (e)(1)
or (2) of this section, the Commission shall make publicly available a
written copy of such vote reflecting the vote of each member on the
question. If a portion of a meeting is to be closed to the public, the
Commission shall, within one day of the vote taken pursuant to
paragraph (e)(1) or (2) of this section, make publicly available a full
written explanation of its action closing the portion together with a
list of all persons expected to attend the meeting and their
affiliation.
(4) Any person may protest a Commission decision to hold a closed
meeting under paragraph (e)(1) or (2) of this section by filing a
motion to open the meeting. Such motion shall be addressed to the
Commission and shall set forth with particularity the statutory or
other authority relied upon, the reasons for which the movant believes
the meeting should not be closed, and the reasons for which the movant
believes that the public interest requires the meeting to be open. Such
motion shall be filed with the Secretary no later than 24 hours prior
to the time for which the closed meeting is scheduled.
(5) The Commission has determined that a majority of its meetings
may be closed to the public pursuant to paragraph (d)(4), (8), or (10)
of this section or any combination thereof. Therefore, pursuant to 5
U.S.C. 552b(d)(4), Commission meetings shall be closed to the public
pursuant to paragraph (d)(4), (8), or (10) of this section or any
combination thereof when three Commissioners vote by recorded vote at
the beginning of such meeting, or portion thereof, to close the exempt
portion or portions of the meeting, and a copy of such vote, reflecting
the vote of each Commissioner on the question, is made available to the
public. The provisions of paragraphs (e)(1) through (3) and (f) of this
section shall not apply to any portion of a meeting to which paragraph
(e)(5) of this section applies: Provided, that the Commission shall,
except to the extent that such information is exempt from disclosure
under the provisions of paragraph (d) of this section, provide the
public with public announcement of the time, place, and subject matter
of the meeting and of each portion thereof at the earliest practicable
time.
(f) Scheduling and public announcement. (1) In the case of each
meeting, the Commission shall make public announcement, at least one
week before the meeting, of the time, place, and subject matter of the
meeting, whether it is to be open or closed to the public, and the name
and phone number of the official designated by the Commission to
respond to requests for information about the meeting. Such
announcement shall be made unless three Commissioners determine by a
recorded vote that Commission business requires that such meeting be
called at an earlier date, in which case the Commission shall make
public announcement of the time, place, and subject matter of such
meeting, and whether open or closed to the public, at the earliest
practicable time.
(2) The time or place of a meeting may be changed following the
public announcement required by paragraph (f)(1) of this section only
if the Commission publicly announces such change at the earliest
practicable time. The subject matter of a meeting, or the determination
of the Commission to open or close a meeting, or a portion of a
meeting, to the public, may be changed following the public
announcement required by paragraph (f)(1) of this section only if:
(i) Three Commissioners determine by a recorded vote that
Commission business so requires and that no earlier announcement of the
change was possible; and
(ii) The Commission publicly announces such change and the vote of
each Commissioner upon such change at the earliest practicable time.
(3) Immediately following each public announcement required by this
paragraph (f), notice of the time, place, and subject matter of a
meeting, whether the meeting is open or closed, any change in one of
the preceding, and the name and phone number of the official designated
by the Commission to respond to requests for information about the
meeting, shall also be submitted for publication in the Federal
Register.
(4) The public announcement required by this section may consist of
the Secretary:
(i) Publicly posting a copy of the document in the reception area
of the Postal Regulatory Commission located at 901 New York Avenue NW,
Suite 200, Washington, DC 20268-0001;
(ii) Mailing a copy to all persons whose names are on a mailing
list maintained for this purpose;
(iii) Operating a recorded telephone announcement, giving the
announcement; and
(iv) Any other means which the Secretary believes will serve to
further inform any persons who might be interested.
(g) Certification of closed meetings; transcripts, electronic
recordings, and minutes. (1) Before any meeting to be closed pursuant
to paragraphs (d)(1) through (10) of this section, the General Counsel
of the Commission, or in the General Counsel's absence, the senior
advisory staff attorney available, should publicly certify that, in the
individual's opinion, the meeting may be closed to the public and shall
state each relevant exemptive provision. A copy of such
[[Page 9620]]
certification, together with a statement from the presiding officer of
the meeting setting forth the time and place of the meeting, and the
persons present, shall be retained by the Commission. The Commission
shall maintain a complete transcript or electronic recording adequate
to record fully the proceedings of each meeting, or portion of a
meeting, closed to the public, except that in the case of a meeting, or
portion of a meeting, closed to the public pursuant to paragraph (d)(8)
or (10) of this section, the Commission shall maintain either such a
transcript or recording, or a set of minutes. Such minutes shall fully
and clearly describe all matters discussed and shall provide a full and
accurate summary of any actions taken, and the reasons therefor,
including a description of the views expressed on any item and the
record of any rollcall vote (reflecting the vote of each Commissioner
on the question). All documents considered in connection with any
action shall be identified in such minutes.
(2) The Commission shall make promptly available to the public, in
a place easily accessible to the public, the transcript, electronic
recording, or minutes (as required by paragraph (g)(1) of this section)
of the discussion of any item on the agenda, or of any item of the
testimony of any witness received at the meeting, except for such item
or items of such discussion or testimony as the Commission determines
by a majority vote of all its members contains information which may be
withheld under paragraph (d) of this section, and is not required by
the public interest to be made available. Copies of such transcript, or
minutes, or a transcription of such recording disclosing the identity
of each speaker, shall be furnished to any person at the actual cost of
duplication or transcription. The Commission shall maintain a complete
verbatim copy of the transcript, a complete copy of the minutes, or a
complete electronic recording of each meeting, or portion of a meeting,
closed to the public, for a period of at least two years after such
meeting, or until one year after the conclusion of any Commission
proceeding with respect to which the meeting or portion was held,
whichever occurs later.
(h) Requests to open or close Commission meetings. (1)(i) Any
person may request in writing that the Commission open to public
observation discussion of a matter which it has earlier decided to
close.
(ii) Such requests shall be captioned ``Request to open __ (date)
Commission meeting on item __ (number or description).'' The request
shall state the reason(s) therefor, the name and address of the person
making the request and, if desired, a telephone number.
(iii) Ten copies of such requests must be received by the Office of
Secretary and Administration no later than three working days after the
issuance of the notice of meeting to which the request pertains.
Requests received after that time will be returned to the requester
with a statement that the request was untimely received and that copies
of any nonexempt portions of the transcript or minutes for the meeting
in question will ordinarily be available in the Office of Secretary and
Administration ten working days after the meeting.
(2)(i) Any person whose interests may be directly affected may
request in writing that the Commission close to public observation
discussion of a matter which it has earlier decided to open as provided
for in paragraph (e)(2) of this section.
(ii) Such requests shall be captioned ``Request to Close __ (date)
Commission meeting on item __ (number or description),'' shall state
the reason(s) therefor, the name and address of the person making the
request and, if desired, a telephone number.
(iii) Ten copies of such requests should be filed with the Office
of Secretary and Administration as soon as possible after the issuance
of the notice of meeting to which the request pertains. However, a
single copy of the request will be accepted. Requests to close meetings
must be received by the Office of Secretary and Administration no later
than the time scheduled for the meeting to which such a request
pertains.
(3) The Secretary shall retain one copy of timely requests and
forward one copy to each Commissioner, one copy to the interested
Office, and two copies to the Docket Section, one for entry in the
appropriate docket file, if any, and one to be posted on the Public
Notice Board located in that section as an attachment to the Notice of
Meeting to which it pertains.
(4) Pleadings replying to requests to open or close shall not be
accepted.
(5) Any Commissioner may require that the Commission vote upon the
request to open or close. If the request is supported by the votes of a
majority of the agency membership, notice of change in meeting shall be
issued and the Secretary shall immediately notify the requester and,
before the close of business the next working day, have posted such
vote and other material required by paragraphs (e) and (f) of this
section on the Commission's Public Notice Board.
(6) If no Commissioner requests that a vote be taken on a request
to open or close a Commission meeting, the Secretary shall by the close
of the next working day after the meeting to which such request
pertains certify that no vote was taken. The Secretary shall forward
one copy of that certification to the requester and two copies of that
certification to the Docket Section, one to be placed in the
appropriate docket file, if any, and one to be posted on the Public
Notice Board, where it will be displayed for one week.
0
43. Revise newly redesignated part 3010 to read as follows:
PART 3010--RULES OF PRACTICE AND PROCEDURE
Subpart A--General Provisions
Sec.
3010.100 Applicability and scope.
3010.101 Definitions.
3010.102 Commission dockets.
3010.103 Procedural schedules in docketed proceedings.
3010.104 Consolidation and severance of proceedings.
3010.105 Consideration of matters before the Commission.
3010.106 Presiding officers.
3010.107 Appeals from interlocutory rulings by presiding officers.
3010.108 Computation of time.
3010.109 Automatic closure of inactive dockets.
Subpart B--Filing Requirements
3010.120 Filing material with the Commission.
3010.121 Filing Online system.
3010.122 Material filed using method other than the Filing Online
system.
3010.123 Rejected filings.
3010.124 Form and content of text-based documents filed with the
Commission.
3010.125 Library references.
3010.126 Subscription.
3010.127 Service.
Subpart C--Participation in Commission Proceedings
3010.140 Opportunity for comment.
3010.141 Appeals of Postal Service determinations to close or
consolidate post offices.
3010.142 Parties to hearings on the record.
3010.143 Representation of persons.
3010.144 Limitation of participation by investigative or prosecuting
officers.
Subpart D--Notices, Motions, and Information Requests
3010.150 Notices.
3010.151 Notices and orders initiating proceeding.
3010.152 Notices initiating dockets for consideration of negotiated
service agreements.
3010.160 Motions.
3010.161 Motions for waiver.
3010.162 Motions for continuances and extensions of time.
[[Page 9621]]
3010.163 Motions for late acceptance.
3010.164 Motions to strike.
3010.170 Information requests.
Subpart E--Proceedings Using Notice and Comment Procedures
3010.200 Applicability.
3010.201 Initiation of a proceeding.
3010.202 Participation in notice and comment proceedings.
3010.203 Commission action.
Subpart F--Proceedings With an Opportunity for a Hearing on the Record
3010.300 Applicability.
3010.301 Notice of proceeding.
3010.302 Prehearing conferences.
3010.303 Hearing format.
3010.304 Scheduling order.
3010.310 Discovery--general policy.
3010.311 Interrogatories for purpose of discovery.
3010.312 Requests for production of documents or things for purpose
of discovery.
3010.313 Requests for admissions for purpose of discovery.
3010.320 Settlement conferences.
3010.321 Hearings.
3010.322 Evidence--general.
3010.323 Evidence--introduction and reliance upon studies and
analyses.
3010.324 In camera orders.
3010.325 Depositions.
3010.330 Briefs.
3010.331 Proposed findings and conclusions.
3010.332 Oral argument before the presiding officer.
3010.333 Oral argument before the Commission.
3010.334 Commission decisions.
3010.335 Intermediate decisions.
3010.336 Exceptions to intermediate decisions.
Authority: 39 U.S.C. 404(d); 503; 504; 3661.
Subpart A--General Provisions
Sec. 3010.100 Applicability and scope.
(a) The rules in this part apply to practice before the Postal
Regulatory Commission.
(b) When a general rule conflicts with a rule governing a specific
practice area, the rule governing the specific practice area shall take
precedence.
(c) The rules in this part shall be liberally construed to secure a
just and speedy determination of issues. They permit the informal
disposition of any matter for which formal procedures are not
specifically required by statute.
(d) Except when specifically required by statute, the rules in this
part may be waived for good cause and appropriate alternative
procedures may be prescribed.
(e) The rules in this part shall be referred to as the ``rules of
practice.'' Rules are to be cited using only the numbers and letters to
the right of the decimal point. For example, paragraph (a) of ``Sec.
3010.120 Filing material with the Commission'' shall be referred to as
``section 120(a) of the rules of practice (39 CFR 3-1-.120(a))'' or as
``rule 120(a)'' (39 CFR 3010.120(a)).
Sec. 3010.101 Definitions.
(a) Act means title 39 of the United States Code, as amended.
(b) Commission or Commissioner means, respectively, the Postal
Regulatory Commission established by the Act or a member thereof. The
Commission is located at 901 New York Avenue NW, Suite 200, Washington,
DC 20268-0001. The Commission's regular business hours are from 8 a.m.
to 4:30 p.m. Eastern Time, except for Saturdays, Sundays, and Federal
holidays.
(c) Complainant means a person who files a complaint with the
Commission pursuant to section 3662 of the Act in the form and manner
hereinafter prescribed.
(d) Effective date, when used with respect to a notice, order,
ruling, or other document issued by the Commission or an officer
thereof (excluding documents issued for publication in the Federal
Register), means the date the filing is posted on the Daily Listing
page of the Commission's website unless otherwise specifically
provided.
(e) Hearing on the record means a hearing conducted under sections
556 and 557 of title 5, U.S.C. (80 Stat. 386), as provided by section
3661 of the Act or in any other proceeding noticed by the Commission
for a hearing on the record.
(f) Negotiated service agreement means a written contract, to be in
effect for a defined period of time, between the Postal Service and a
mailer, which provides for customer-specific rates or fees and/or terms
of service in accordance with the terms and conditions of the contract.
A rate associated with a negotiated service agreement is not a rate of
general applicability.
(g) Participant means any person who participates, or seeks to
participate, in a proceeding before the Commission.
(h) Party means the Postal Service, the Public Representative, a
complainant, or a person who has intervened in a proceeding docketed
for a hearing on the record before the Commission.
(i) Person means an individual, a partnership, corporation, limited
liability company, trust, unincorporated association, public or private
organization, or governmental entity.
(j) Petitioner means a person who is permitted by section 404(d)(5)
of the Act to appeal to the Commission a determination of the Postal
Service to close or consolidate a post office.
(k) Postal Service means the United States Postal Service
established by the Act.
(l) Postal service refers to the delivery of letters, printed
matter, or mailable packages, including acceptance, collection,
sorting, transportation, or other functions ancillary thereto.
(m) Presiding officer means a person designated by the Chairman of
the Commission or the Commission to preside over a Commission
proceeding or over a hearing held on the record before the Commission.
(n) Proceeding means a Commission process initiated by the issuance
of a notice or order that establishes a docket for the consideration of
a matter before the Commission.
(o) Product means a postal service with a distinct cost or market
characteristic for which a rate or rates are, or may reasonably be,
applied.
(p) Public Representative or PR means an officer of the Commission
designated to represent the interests of the general public in a
Commission proceeding.
(q) Rate or class of general applicability means a rate or class
that is available to all mailers equally on the same terms and
conditions.
(r) Record means all documents and other material in a docket,
including pleadings, testimony, exhibits, library references,
transcripts of oral testimony or statements given or made during a
hearing, comments, briefs, and in camera material, whether or not
relied upon by the Commission or presiding officer in reaching a
decision.
(s) Secretary means the Secretary of the Commission, the Acting
Secretary, or the Secretary's designee.
(t) Small business concern means a for-profit business entity that:
(1) Is independently owned and operated;
(2) Is not dominant in its field of operation;
(3) Has a place of business located in the United States;
(4) Operates primarily within the United States or makes a
significant contribution to the United States economy by paying taxes
or using American products, materials, or labor; and
(5) Together with its affiliates, qualifies as small in its primary
industry under the criteria and size standards established by the Small
Business Administration in 13 CFR 121.201 based on annual receipts or
number of employees.
(u) Website means the Commission's website located at https://www.prc.gov.
[[Page 9622]]
Sec. 3010.102 Commission dockets.
(a) The Commission may initiate a proceeding by issuing a notice or
order that establishes a docket in which a proceeding is to be
conducted.
(b) When permitted by statute or regulation, any person may seek
the initiation of a proceeding by filing a request with the Commission
that complies with the rules governing the type of proceeding being
requested.
(c) The Secretary shall maintain a docket for all matters that come
before the Commission.
(d)(1) The Secretary shall assign docket designations to each
matter that comes before the Commission that reflect the nature of the
matter, set forth the fiscal year in which the matter came before the
Commission, and where applicable, the sequential number of the docket
type within the fiscal year. Available docket types are:
(i) Appeal of a Post Office Closing (A);
(ii) Annual Compliance Report (ACR);
(iii) Complaint (C);
(iv) Competitive Product Rates (CP);
(v) General (G);
(vi) International Mail (IM);
(vii) Mail Classification (MC);
(viii) Market Test (MT);
(ix) Change in the Nature of Postal Services (N);
(x) Public Inquiry (PI);
(xi) Market Dominant Rates (R);
(xii) Rulemaking (RM);
(xiii) Special Studies (SS); and
(xiv) Annual Review of Tax Calculation (T).
(2) The Commission may modify the list of docket types and document
formats without prior notice.
(e) The Secretary's assignment of a docket designation does not, by
itself, establish a docket or initiate a proceeding. A docket is
formally established and proceedings initiated only by the issuance of
a Commission notice or order except for certain negotiated service
agreements for which the authority to establish a docket and initiate a
proceeding by issuance of a Secretary's notice has been delegated to
the Secretary.
(f) The substance of the matter presented to the Commission, not
the assigned docket type, shall govern the procedural requirements for
the docket.
(g) Material filed with the Commission following the Secretary's
assignment of a docket designation shall include the assigned docket
designation.
(h) Public material filed within a docket may be viewed at the
Commission's Docket Section during regular business hours. Public
documents filed in a docket that appear in electronic format may also
be accessed remotely via the Commission's website. Confidential
material filed under seal in a docket may only be accessed with prior
authorization. Part 3011 of this chapter sets forth the procedures for
obtaining such authorization. Persons who wish to access confidential
material should contact the Commission's Docket Section for the
appropriate mode for transmitting material filed under seal.
(i) Active dockets may only be closed by the Commission.
Sec. 3010.103 Procedural schedules in docketed proceedings.
Procedural schedules shall be established and may be periodically
modified for each matter that is assigned a docket designation.
Sec. 3010.104 Consolidation and severance of proceedings.
The Commission may order proceedings involving related issues or
facts to be consolidated for consideration of any or all matters at
issue in such proceedings. The Commission may sever proceedings which
have been consolidated or order separate proceedings on any issue
presented if it appears that separate proceedings will be more
convenient, expeditious, or otherwise appropriate.
Sec. 3010.105 Consideration of matters before the Commission.
(a) Unless it orders otherwise, the Commission shall sit en banc in
all matters that come before it. In those proceedings in which a
presiding officer is appointed, the Commission will continue to sit en
banc, unless modified by Commission notice or order, with the presiding
officer responsible for those matters within the scope of the presiding
officer's authority.
(b) A decision to establish a docket (other than certain negotiated
service agreement dockets), close an active docket, or reach a final
decision in any docket shall be by majority vote of the Commissioners
then in office.
Sec. 3010.106 Presiding officers.
(a) Designation of presiding officers. The Chairman, in
consultation with all other Commissioners then in office, may designate
any Commissioner, including the Chairman, to act as presiding officer
over any matter before the Commission. Subject to approval by majority
vote of all Commissioners then in office, the Chairman may also
designate any member of the Commission's staff, an Administrative Law
Judge employed by the Commission for a specific proceeding, or any
person under contract with the Commission to serve as presiding officer
over any matter before the Commission. Contracts between the Commission
and any person who is to serve as a presiding officer must include
provisions that incorporate the ethical requirements and standards
applicable to Commission employees who serve as presiding officers.
(b) Notice of designation. The Secretary shall issue a notice of
any decision to designate a presiding officer. The notice shall
identify the presiding officer and the date of appointment. Any
expansion or limitation on the presiding officer's authority, or
specific direction to a presiding officer (such as specific direction
to issue an intermediate decision for the Commission's consideration)
not specified in this section shall be included in the notice.
(c) Authority delegated. Presiding officers shall have the
authority, within the Commission's powers and subject to its published
rules to:
(1) Regulate the course of a proceeding before the Commission,
including ruling on all matters not specifically reserved for the
Commission, either orally during a hearing or by issuing written
presiding officer rulings;
(2) Regulate the course of a public hearing, including the
recessing, reconvening, and adjournment thereof;
(3) Issue presiding officer information requests;
(4) Administer oaths and affirmations;
(5) Issue subpoenas authorized by law (limited to Commissioners and
Administrative Law Judges designated as presiding officers);
(6) Rule upon offers of proof and receive relevant evidence;
(7) Take or authorize that depositions be taken as provided in
Sec. 3010.324;
(8) Hold appropriate conferences before or during hearings and to
rule on matters raised at such conferences, including prehearing
conferences held pursuant to Sec. 3010.302;
(9) Dispose of procedural requests or similar matters except for
motions to dismiss or to otherwise make a final determination of a
proceeding prior to the issuance of an intermediate decision as
provided in paragraph (c)(11) of this section;
(10) Certify, within their discretion, or upon direction of the
Commission, any question to the Commission for its consideration and
disposition including, without limitation, motions to dismiss or to
otherwise make a final determination of a proceeding prior to the
issuance of an intermediate decision as provided in paragraph (c)(11)
of this section;
[[Page 9623]]
(11) Submit an intermediate decision in accordance with Sec.
3010.335, when directed; and
(12) Take any other action necessary or appropriate to the
discharge of the duties vested in them, consistent with the statutory
or other authorities under which the Commission functions and with the
rules, regulations, and policies of the Commission.
(d) Conduct of hearings. It is the duty of the presiding officer to
conduct fair and impartial hearings and to maintain order. Any
disregard by participants or counsel of presiding officer rulings on
matters of order or procedure shall be noted on the record, and where
the presiding officer deems it necessary shall be made the subject of a
special written report to the Commission. In the event that
participants or counsel should be guilty of disrespectful, disorderly,
or contumacious language or conduct in connection with any hearing, the
presiding officer may immediately submit to the Commission a report
thereon, together with recommendations, and in the presiding officer's
discretion, suspend the hearing.
(e) Disqualification. A presiding officer may withdraw from a
proceeding when necessary due to disqualification, or may be removed by
the Commission for good cause.
Sec. 3010.107 Appeals from interlocutory rulings by presiding
officers.
(a) General policy. The Commission will not review interlocutory
rulings of a presiding officer except in extraordinary circumstances.
(b) Appeals certified by the presiding officer. (1) Rulings of the
presiding officer may be appealed to the Commission when the presiding
officer certifies in writing that an interlocutory appeal is warranted.
The presiding officer shall not certify an appeal unless the officer
finds that:
(i) The ruling involves an important question of law or policy
concerning which there is substantial ground for difference of opinion;
and
(ii) An immediate appeal from the ruling will materially advance
the ultimate termination of the proceeding or subsequent review will be
an inadequate remedy.
(2) A request for the presiding officer to certify an appeal shall
be made by motion within five days after the presiding officer's ruling
has been issued. The request shall set forth with specificity the
reasons that a participant believes that an appeal meets the criteria
of paragraphs (b)(1)(i) and (ii) of this section. Such requests shall
also state in detail the legal, policy, and factual arguments
supporting the participant's position that the ruling should be
modified. If the appeal is from a ruling rejecting or excluding
evidence, such request shall include a statement of the substance of
the evidence which the participant contends would be adduced by the
excluded evidence and the conclusions intended to be derived therefrom.
(3) The presiding officer may request responsive pleadings from
other participants prior to ruling upon the request to certify an
appeal to the Commission.
(c) Appeals not certified by the presiding officer. A participant
may request Commission review of a presiding officer's decision denying
certification of an appeal by motion within five days of the decision.
If the presiding officer fails to act on a request for certification
within 15 days of the issuance of the ruling in question, the
participant seeking certification may apply for review by the
Commission within 20 days of the ruling in question. Unless the
Commission directs otherwise, its review of the application for review
will be based on the record and pleadings filed before the presiding
officer pursuant to paragraph (b) of this section.
(d) Action by the Commission. (1) The Commission may dismiss an
appeal certified by the presiding officer if it determines that:
(i) The objection to the ruling should be deferred until the
Commission's consideration of the entire proceeding; or
(ii) Interlocutory review is otherwise not warranted or appropriate
under the circumstances.
(2) When the presiding officer declines to certify an appeal, the
Commission will not permit an interlocutory appeal unless it
determines:
(i) That the presiding officer should have certified the matter;
(ii) That extraordinary circumstances exist; and
(iii) That prompt Commission decision is necessary to prevent grave
detriment to the public interest.
(3) If the Commission fails to issue an order permitting an
interlocutory appeal within 15 days after the presiding officer
certifies the appeal or a participant files an application for review,
the appeal shall be deemed denied. If the Commission issues an order
permitting an appeal, it may rule upon the merits of the appeal in that
order or at a later time.
(e) Effect of appeals. Unless the presiding officer or the
Commission so orders, the certification of an appeal or the filing of
an application for review shall not stay the proceeding or the
effectiveness of any ruling.
(f) Review at conclusion of proceeding. If the Commission does not
entertain an interlocutory appeal of a presiding officer's ruling,
objection to the ruling may be raised:
(1) In briefs to the presiding officer or the Commission at the
conclusion of hearings on the record; or
(2) By the deadline for submission of comments or reply comments,
whichever is later, in all other proceedings in which a hearing on the
record is not held.
Sec. 3010.108 Computation of time.
(a) In computing time periods, the term ``day'' shall mean calendar
day.
(b) Except as otherwise provided by law, in computing any period of
time prescribed or allowed by this part, or by any notice, order, rule,
presiding officer ruling, or regulation of the Commission or a
presiding officer, the day of the act, event, or default after which a
designated period of time begins to run is not to be included.
(c) The last day of the period so computed is to be included unless
it is a Saturday, Sunday, Federal holiday, or a day on which the
Commission is not continuously open from 8 a.m. to 4:30 p.m. or on
which the Commission's docketing system is not accessible continuously
during that time. In any such case, the applicable time period shall
run until the end of the next full business day that the Commission is
open and its docketing system is accessible.
(d) Except in proceedings to consider changes in the nature of
postal services conducted under part 3020 of this chapter, in computing
a period of time which is five days or less, all Saturdays, Sundays,
Federal holidays, or days on which the Commission is not continuously
open from 8 a.m. to 4:30 p.m. or on which the Commission's docketing
system is not accessible continuously during that time are to be
excluded.
Sec. 3010.109 Automatic closure of inactive dockets.
(a) Automatic closure. The Commission shall automatically close a
docket in which there has been no activity of record by any person for
12 consecutive months, except dockets in which further action by the
Commission is required by statute or regulation, or dockets for which
the Commission finds good cause to remain open.
(b) Notice of closure. Each month, the Commission shall post on its
website a list of dockets that will be subject to automatic closure
during the following
[[Page 9624]]
calendar month and will include the date on which the docket will
automatically close.
(c) Motions to stay automatic closure. (1) Persons, including the
Postal Service or a Public Representative, may file a motion to stay
automatic closure of a docket and request that the docket remain open
for a specified term not to exceed 12 months. Motions to stay automatic
closure must be filed at least 15 days prior to the automatic closure
date.
(2) The Commission may order a docket remain open for a specified
term not to exceed 12 months and must file such order at least 15 days
prior to the automatic closure date.
(d) Motions to reopen automatically closed dockets. (1) If, at any
time after a docket has been automatically closed, persons, including
the Postal Service or a Public Representative, may file a motion to
reopen the docket and must set forth with particularity good cause for
reopening the docket.
(2) The Commission may order a closed docket to be reopened, and
must set forth the basis for reopening the docket.
Subpart B--Filing Requirements
Sec. 3010.120 Filing material with the Commission.
(a) All material filed with the Commission shall be transmitted to
the Commission in electronic format using the Filing Online system
available over the internet through the Commission's website at https://www.prc.gov. The material must satisfy the Filing Online system
compatibility requirements specified by the Secretary in the Filing
Online User Guide, which shall also be accessible on the Commission's
website. The exceptions to this rule are:
(1) Material that cannot reasonably be converted to electronic
format;
(2) Confidential material filed under seal pursuant to part 3011 of
this chapter shall not be transmitted electronically using the Filing
Online system or any other electronic filing system unless authorized
in advance by the Secretary;
(3) Hardcopy material filed by persons who do not have the ability
to submit material using the Filing Online system and who files not
more than ten pages of material with the Commission in any one calendar
year;
(4) Hardcopy material filed by persons participating in proceedings
that consider the appeal of a Postal Service determination to close or
consolidate a post office, other than the Postal Service, that do not
have the ability to submit material using the internet; and
(5) Hardcopy material filed in docketed proceedings with the
approval of the Secretary for good cause shown.
(b) Material subject to the exceptions specified in paragraph (a)
of this section may be filed either by mailing or by hand delivery
during regular business hours to the Office of Secretary and
Administration, Postal Regulatory Commission, 901 New York Avenue NW,
Suite 200, Washington, DC 20268-0001. The Secretary has authority to
approve the use of secure alternative electronic filing systems
pursuant to Sec. 3011.203(c)(2) of this chapter for confidential
material filed under seal. The Secretary also has authority to approve
the use of alternative electronic filing systems for non-confidential
material on a case-by-case basis when necessary to facilitate efficient
docketing operations.
Sec. 3010.121 Filing Online system.
(a) Only registered users of the Filing Online system may file
material using the Filing Online system. Both temporary and permanent
account registrations are available. Information for establishing a
Filing Online account may be obtained on the Commission's website at
https://www.prc.gov.
(b) A temporary account allows a user to file materials
immediately, but expires after 35 days. The purpose of a temporary
account is to permit persons to file comments solicited by the
Commission on a one-time or infrequent basis, or to file notices of
intervention where there is limited time in which to establish a
permanent account. A temporary account also may be used on an
extraordinary basis for good cause shown.
(c) A permanent account requires the authorization of the Secretary
prior to use, but remains active until cancelled. Registration can be
in the form of a principal account holder or as an agent of the
principal account holder. When a principal account holder is
representing the interests of another person, the authority of the
principal account holder to represent the person on whose behalf the
document is filed must be valid and current, in conformance with Sec.
3010.143. The authority of an agent account holder to submit documents
for a principal account holder must be valid and current. A principal
account holder must promptly inform the Secretary of any change in the
principal account holder's authority to represent participants in a
proceeding or any change in the authority delegated to an agent account
holder to submit documents on the principal account holder's behalf.
(d) Only such material that conforms to the requirements of this
part and any other applicable Commission rule or order shall be
accepted for filing. In order for material to be accepted using the
Filing Online system, it must be submitted to the Commission by a
temporary or permanent account holder. Material submitted through the
Filing Online system is considered to have been filed on the date
indicated on the receipt issued by the Secretary. A filing is accepted
when the Secretary, after review, posts the filing on the Daily Listing
page of the Commission's website. Material received after the close of
regular business hours or on a Saturday, Sunday, Federal holiday or
other day on which the Commission is closed shall be deemed to be filed
on the next regular business day.
Sec. 3010.122 Material filed using method other than the Filing
Online system.
(a) Hardcopy and other forms of material. A hardcopy document is
filed on the date stamped by the Secretary. It is accepted when the
Secretary, after review, posts the document on the Daily Listing page
of the Commission's website. Any other form of material filed with the
Commission must be accompanied by a hardcopy notice of filing, which
describes the material being filed, identifies the person filing the
material, and specifies the docket caption and docket number under
which the material is being filed. This material is accepted when the
Secretary, after review, posts the notice of filing on the Daily
Listing page of the Commission's website. Material received after the
close of regular business hours or on a Saturday, Sunday, or Federal
holiday shall be deemed to be filed on the next regular business day.
(b) Computer media. With the prior approval of the Secretary, a
participant may submit a document on a compact disk or other media or
method approved in advance by the Secretary, simultaneously with the
filing of one printed original hardcopy, provided that the stored
document is a file generated in either Acrobat (pdf), Word,
WordPerfect, or Rich Text Format (rtf).
Sec. 3010.123 Rejected filings.
Any filing that does not comply with an applicable Commission rule
or order may be rejected. Any filing that is rejected is deemed not to
have been filed with the Commission. If a filing is rejected, the
Secretary will attempt to notify the person submitting the filing,
indicating the reason(s) for rejection. Acceptance for filing shall not
waive any failure to comply with this part, and
[[Page 9625]]
such failure may be cause for subsequently striking all or any part of
any document. Any controversies concerning the acceptability of a
filing shall be resolved after review by the Office of General Counsel.
Sec. 3010.124 Form and content of text-based documents filed with
the Commission.
(a) Equivalent paper size. Each document filed in paper form shall
be produced on letter-size paper, 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 that 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. For a multiple page document, the preference is for the
document to be not stapled, hole-punched, or bound, but may be fastened
together by paper or binder clip, or equivalent. If the document is
bound, it shall be bound on the left side. Each document filed in
electronic form must be capable of meeting the above requirements when-
printed from a text-based pdf formatted file version of the document.
Consideration may be given to alternative file formats where necessary.
(b) Line spacing and font. The text of documents filed with the
Commission shall be formatted in not less than one and one-half spaced
lines except that tables of content, captions, tables, footnotes and
quotations may be single-spaced. Documents shall be submitted in a san-
serif font such as Arial (or substantially equivalent). Body text shall
be 12 point, except that footnotes and quotations may appear as small
as 10 point. Where necessary, special text such as in tables or charts,
may appear as small as 9 point. These requirements may be waived on a
case-by-case basis, based on both substantial compliance and the
readability of the document.
(c) Caption, title, page numbering, and table of contents. The
caption of each document filed with the Commission in any proceeding
shall clearly show the docket designation and title of the proceeding
before the Commission. The title of such document shall identify each
participant on whose behalf the filing is made and include a brief
description of the document or the nature of the relief sought therein
(e.g., motion for extension, brief on exceptions, complaint, notice of
intervention, answer to complaint). Each page, after the first page, of
a document shall be consecutively numbered. Unique page numbers are
permissible for introductory material such as cover pages and table of
contents, and for appendixes. Each document filed with the Commission
consisting of 20 or more pages shall include a table of contents with
page references. For briefs also see Sec. 3010.330.
(d) Improper matter. Defamatory, scurrilous, or unethical matter
shall not be included in any document filed with the Commission.
(e) Exception for appeals of post office closings and
consolidations. The requirements of paragraphs (a) through (c) of this
section are encouraged, but optional, for participants other than the
Postal Service in proceedings to consider the appeal of a Postal
Service determination to close or consolidate a post office conducted
pursuant to part 3021 of this chapter.
Sec. 3010.125 Library references.
(a) In general. A library reference is a special type of filing,
which is accepted by the Commission for the convenience of the person
filing material that is not conducive to typical text based filings.
The filing of a document as a library reference is appropriate when
interest in the material is limited, when the material constitutes a
secondary source that provides background or support for a position or
matter, or when references to, or identification of, the material filed
as a library reference would be facilitated. Examples of materials that
are appropriate for filing as library references include electronic
spreadsheets, workpapers in support of primary documents, pre-existing
materials, secondary sources such as books or materials that are not
readily available elsewhere, or other foundational materials filed in
support of a primary document. Whenever possible, library references
are to be filed in electronic format. The Commission reserves the right
to refuse acceptance of any library reference material in its docket
room and its right to take other action to ensure all persons' ability
to obtain access to the material.
(b) Categorization of library references. To the extent possible,
material filed as a library reference shall be identified and referred
to by participants in terms of the following categories:
(1) Category 1--Reporting Systems Material (consisting of library
references relating to the Postal Service's statistical cost and
revenue reporting systems, and their primary outputs);
(2) Category 2--Witness Foundational Material (consisting of
material relating to the testimony of specific witnesses, primarily
that which is essential to the establishment of a proper foundation for
receiving into evidence the results of studies and analyses);
(3) Category 3--Reference Material (consisting of previously
published material provided for the convenience of the reader, such as
books, chapters or other portions of books, articles, reports, manuals,
handbooks, guides, and contracts);
(4) Category 4--Material Provided in Response to Discovery
(consisting of material provided in response to discovery requests);
(5) Category 5--Disassociated Material (consisting of material
filed at the request of another, from which the filing party wishes to
be disassociated, is not vouching for or sponsoring the material
provided);
(6) Category 6--All Other Material (consisting of library
references not fitting any of the other categories).
(c) Labeling. Material filed as a library reference shall be
labeled in a manner consistent with standard Commission notation and
any other conditions the Commission or presiding officer establishes.
Each library reference shall be identified by a unique identification
number. The standard format for an identification number shall be
``[abbreviated name of person filing]-LR-[docket identification]-
[optional: NP][sequential number by person filing].'' For example,
``PRC-LR-CP2010-1-NP8'' read right to left would be the eighth (8) non-
public (NP) item filed in Docket No. (CP2010-1) as a library reference
(LR) by the Postal Regulatory Commission (PRC). Alternative formats may
be used when required for clear identification of the material being
filed.
(d) Filing procedure. Participants filing material as a library
reference shall file contemporaneous written notice of this action. The
notice shall:
(1) Set forth the reason(s) why the material is being designated as
a library reference;
(2) Identify the category into which the material falls and
describe in detail what the material consists of or represents, noting
matters such as the presence of survey results;
(3) Explain in detail how the material relates to the participant's
case or to issues in the proceeding;
(4) Identify authors or others materially contributing to
substantive aspects of the preparation or development of the library
reference;
(5) Identify the documents (such as testimony, exhibits, and an
interrogatory) or request to which the library reference relates, to
the extent practicable;
(6) Identify other library references or testimony relied upon or
referred to in
[[Page 9626]]
the designated material, to the extent practicable;
(7) Indicate whether the library reference is an update or revision
to another library reference and, if it is, clearly identify the
predecessor material; and
(8) To the extent feasible, for proceedings scheduled for a hearing
on the record, identify portions expected to be entered into the record
and the expected sponsor (if the participant filing a library reference
anticipates seeking, on its own behalf, to enter all or part of the
material contained therein into the evidentiary record). To the extent
feasible, in all other proceeding types, identify portions relevant to
the proceeding.
(e) Optional preface or summary. Inclusion of a preface or summary
in a library reference addressing the matters set out in paragraphs
(d)(1) through (8) of this section is encouraged, but optional.
Sec. 3010.126 Subscription.
(a) Each document filed with the Commission shall be subscribed.
Subscription constitutes a certification that the person filing the
document has read the document being filed; that the person filing the
document knows the contents thereof; that if executed in any
representative capacity, the document has been subscribed in the
capacity specified in the document with full power and authority so to
do; that to the best of the person's knowledge, information and belief
every statement contained in the document is true and no such
statements are misleading; and that such document is not filed for
purposes of delay. This requirement extends to notices of filing for
library references or other material, including the underlying library
references or other material to the extent referenced in the notice of
filing.
(b) For a document or notice of filing filed via the Filing Online
system, the subscription requirement is met when the document or notice
of filing is filed with the Commission.
(c) For a hardcopy document or hardcopy notice of filing, the
subscription requirement is met by signing in ink, by affixing an
electronic signature, or by including the typed name of the individual,
authorized office, employee, attorney, or other representative who
files the document or notice.
Sec. 3010.127 Service.
(a) Material filed by a person participating in a docket shall be
deemed served on all other persons (except those served by the
Secretary pursuant to paragraph (b) of this section) who are
participating in the docket as of the date the material, or notice of
the material's filing is posted by the Secretary on the Commission's
website.
(b) The Secretary shall provide service by First-Class Mail, which
is deemed complete upon mailing, to the following persons upon a
demonstration of the inability to effectively utilize the Filing Online
system (until alternative arrangements are established):
(1) Petitioners in dockets appealing Postal Service determinations
to close or consolidate post offices conducted pursuant to part 3021 of
this chapter;
(2) Parties that have intervened in proceedings docketed for a
hearing on the record; and
(3) Where necessary for fairness and protection of due process, an
active participant in a proceeding affecting the substantial rights of
that participant.
(c) The Secretary shall maintain a current service list in each
proceeding docketed for a hearing on the record which shall include the
parties that have intervened in that proceeding and up to two
individuals designated for physical service of documents, if necessary,
by each party. The service list for each current proceeding will be
available on the Commission's website at https://www.prc.gov. Each party
who has internet access shall be responsible for ensuring that its
listing on the Commission's website is accurate and should promptly
notify the Secretary of any errors. The Secretary or the Secretary's
designee shall be responsible for ensuring the accuracy of listings of
any parties who lack internet access.
Subpart C--Participation in Commission Proceedings
Sec. 3010.140 Opportunity for comment.
Except for proceedings involving an appeal of a Postal Service
determination to close or consolidate a post office, any person may
submit comments in proceedings before the Commission. An opportunity to
provide a reply to comments shall be at the discretion of the
Commission, or the presiding officer if one is appointed. The scope and
timing of comments and reply comments may be specified by notice,
order, or presiding officer's ruling. There is no requirement to
intervene in a proceeding as a party in order to submit comments.
Sec. 3010.141 Appeals of Postal Service determinations to close or
consolidate post offices.
(a) Only a person served by the post office in which the Postal
Service has issued a decision to close or consolidate a post office may
file an appeal of the decision with the Commission.
(b) Any other person served by the same post office under review
who desires to participate in the proceeding, or any Postmaster,
counsel, agent, or other person authorized or recognized by the Postal
Service as such person's representative, may participate in an appeal
by submitting comments.
(c) Except for persons identified in paragraph (a) or (b) of this
section, the designated Public Representative, and the Postal Service,
no other person may participate in a proceeding to consider the appeal
of a Postal Service determination to close or consolidate a post
office.
(d) Opposition to a person asserting eligibility for participation
shall be made within three days of that person's first filing in the
proceeding.
Sec. 3010.142 Parties to hearings on the record.
(a) Parties to a proceeding. Any interested person may become a
party to proceedings docketed for a hearing on the record by filing a
notice of intervention. The Postal Service, and the Public
Representative are automatically deemed parties in such proceedings
without the need to file a notice of intervention. Persons who file a
complaint are also automatically deemed a party to a complaint
proceeding without the need to file a notice of intervention. Parties
may be provided an opportunity to participate in discovery, file
testimony, participate in the written or oral examination of witnesses,
file briefs, or present oral argument before the Commission or the
presiding officer. Persons that have not intervened may participate in
a proceeding docketed for a hearing on the record, but such
participation shall be limited to providing comments pursuant to Sec.
3010.140 unless otherwise directed.
(b) Notices of intervention. A notice of intervention shall clearly
and concisely set forth the nature and extent of the intervenor's
interest in the issues to be decided, including the postal services
utilized by the intervenor giving rise to the intervenor's interest in
the proceeding, and to the extent known, the position of the intervenor
with regard to the proposed changes in postal rates, fees,
classifications, or services, or the subject matter of the complaint,
as described in the notice of the proceeding. Such notice shall state
whether or not the intervenor requests a hearing or in lieu thereof, a
conference, and whether or not the intervenor intends to actively
[[Page 9627]]
participate in a hearing. Such notice shall also include on page one
thereof the name and full mailing address of no more than two persons
who are to receive service, when necessary, of any documents relating
to such proceeding.
(c) Form and time of filing. Notices of intervention shall be filed
no later than the date fixed for such filing by the Commission or its
Secretary, unless for good cause shown, the Commission authorizes a
late filing. Without a showing for good cause, late intervenors shall
be subject to and may not challenge decisions by the Commission or
presiding officer made prior to acceptance of the request for late
intervention.
(d) Oppositions. (1) Except as otherwise provided in paragraph
(d)(2) of this section, oppositions to notices of intervention may be
filed by any party in the proceeding no later than ten days after the
notice of intervention is filed.
(2) Oppositions to notices of interventions in proceedings
considering the change in the nature of a postal service pursuant to
part 3020 of this chapter may be filed by any party in the proceeding
no later than three days after the notice of intervention is filed.
(3) Pending Commission action, an opposition to intervention shall,
in all proceedings except those considering the change in the nature of
a postal service pursuant to part 3020 of this chapter, delay on a day-
for-day basis the date for responses to discovery requests filed by
that intervenor.
(e) Effect of intervention. A person filing a notice of
intervention shall be a party to the proceeding subject, however, to a
determination by the Commission, either in response to an opposition,
or sua sponte, that party status is not appropriate under the Act.
Intervenors are also subject to the right of the Commission or the
presiding officer as specified in Sec. 3010.104 to require two or more
intervenors having substantially like interests and positions to join
together for purposes of service of documents, presenting evidence,
making and arguing motions and objections, propounding discovery,
cross-examining witnesses, filing briefs, and presenting oral arguments
to the Commission or presiding officer. No intervention shall be deemed
to constitute a decision by the Commission that the intervenor is
aggrieved for purposes of perfecting an appeal of any final order of
the Commission.
Sec. 3010.143 Representation of persons.
(a) By whom. An individual may participate on the individual's own
behalf; a member of a partnership may represent the partnership; and an
officer may represent a corporation, limited liability company, trust,
unincorporated association, or governmental entity. A person may be
represented in a proceeding by an attorney at law admitted to practice
and in good standing before the Supreme Court of the United States, the
highest court of any State or Territory of the United States or the
District of Columbia, or the Court of Appeals or the District Court for
the District of Columbia.
(b) Authority to act. When an officer or an attorney acting in a
representative capacity appears in person, submits a document to the
Commission using the Filing Online system as a principal account
holder, or signs a paper filed with the Commission, the personal
appearance, online submission, or signature, shall constitute a
representation to the Commission that that individual is authorized to
represent the particular person on whose behalf the individual acts.
Any individual appearing before or transacting business with the
Commission in a representative capacity may be required by the
Commission or the presiding officer to file evidence of the
individual's authority to act in such capacity.
(c) Notice of appearance and withdrawal of appearance. An
individual intending to appear before the Commission or its presiding
officer in a representative capacity in a proceeding before the
Commission shall file with the Commission a notice of appearance in the
form prescribed by the Secretary unless that individual is named in an
initial filing of the person whom the individual represents as the
individual to whom communications from the Commission in regard to the
filing are to be addressed. An individual whose authority to represent
a person in a specific Commission proceeding has been terminated shall
file a timely notice of withdrawal of appearance with the Commission.
(d) Standards of conduct. Individuals practicing before the
Commission shall conform to the standards of ethical conduct required
of practitioners by the District of Columbia Rules of Professional
Conduct.
(e) Disqualification and suspension. After hearing, the Commission
may disqualify and deny, temporarily or permanently, the privilege of
appearing and practicing before it in any way to any individual who is
found not to possess the requisite qualifications, or to have engaged
in unethical or improper professional conduct. Contumacious conduct at
any hearing before the Commission or its presiding officer shall be
grounds for exclusion of any individual from such hearing and for
summary suspension for the duration of the hearing by the Commission or
the presiding officer.
Sec. 3010.144 Limitation of participation by investigative or
prosecuting officers.
No officer, employee, or agent of the Commission who participates
in a proceeding before the Commission as an attorney or witness or who
actively participates in the preparation of evidence or argument
presented by such persons, shall participate or advise as to the
intermediate decision or Commission decision in that proceeding.
Subpart D--Notices, Motions, and Information Requests
Sec. 3010.150 Notices.
(a) Purpose. A notice is a document that announces a past, present,
or future, event or occurrence. A notice shall not be combined with a
request for any order or ruling that otherwise should be presented by
motion. The Commission or presiding officer shall not combine a notice
with a Commission order or a presiding officer's ruling, unless the
title of the document clearly states the intent of document being
issued.
(b) Filing requirements. The title of any document filed as a
notice shall contain the word ``notice.'' Additional requirements for
the content of specific forms of notices are provided throughout
chapter III of this title, where appropriate.
Sec. 3010.151 Notices and orders initiating proceeding.
(a) Upon a finding that a matter is properly before the Commission,
the Commission shall issue a notice and order initiating the proceeding
to consider that matter. The rules in this section apply to all
proceedings except for:
(1) Proceedings to consider certain negotiated service agreements,
which are noticed pursuant to Sec. 3010.152; and
(2) Proceedings to consider the appeal of a Postal Service
determination to close or consolidate post office, pursuant to part
3021 of this chapter.
(b) The notice and order shall:
(1) Describe the general nature of the proceeding, i.e., a
complaint, a rulemaking, a change in rates, a change in the product
lists, a change in the nature of postal services, etc.;
(2) Identify the person(s) requesting the initiation of the docket,
if applicable;
[[Page 9628]]
(3) Refer to the legal authority under which the proceeding is to
be conducted;
(4) Provide a sufficient description of the matter being considered
such that the reader is informed of the substance of the proceeding,
and provide direction as to where further information may be obtained;
(5) Establish the docket under which the proceeding will be
conducted;
(6) Assign a Public Representative to represent the interests of
the public, when required;
(7) Describe how interested persons may participate in the
proceeding;
(8) Establish procedural deadlines, if known; and
(9) Include such other information as the Commission deems
appropriate.
(c) For proceedings docketed for a hearing on the record pursuant
to subpart F of this part, the notice and order shall also:
(1) Specify the date by which notices of intervention and requests
for hearing must be filed;
(2) Specify the date, time, and place of a prehearing conference or
first public hearing, if known; and
(3) Include the procedural schedule provided for under Sec.
3020.110 of this chapter in proceedings to consider changes in the
nature of postal services pursuant to part 3020 of this chapter.
(d) The document shall be published in the Federal Register.
Sec. 3010.152 Notices initiating dockets for consideration of
negotiated service agreements.
(a) The Secretary shall issue a notice to initiate a docket for
each Postal Service request which proposes the addition or removal of a
negotiated service agreement from the market dominant or the
competitive product list, or the modification of an existing product
currently appearing on the market dominant or the competitive product
list. Multiple requests may be combined into a single notice.
(b) The document shall specify:
(1) The docket number associated with each Postal Service request;
(2) The title of each Postal Service request;
(3) The request's acceptance date;
(4) The legal authority cited by the Postal Service for each
request;
(5) The appointment of an officer of the Commission to represent
the interests of the general public in the proceeding; and
(6) The comment deadline pertaining to each request.
(c) The document shall be published in the Federal Register.
Sec. 3010.160 Motions.
(a) Motions. A motion is an application for a Commission order or
ruling by a presiding officer. Motions may be presented by any person
who participates in, or who seeks to participate in, a proceeding
before the Commission. Motions may be supported by declarations,
exhibits, library references, attachments, and other submissions.
Motions shall set forth with particularity the ruling or relief sought,
the grounds therefore and the statutory and other authorities relied
upon. Motions shall be in writing, except that after a hearing has
convened, motions may be made orally to the Commission or to the
presiding officer if one has been appointed.
(b) Responses to motions. A response to a motion may be presented
by any person who participates in, or who seeks to participate in, a
proceeding before the Commission. Responses shall state with
particularity the position of the person submitting the response with
regard to the relief or ruling requested in the motion and the grounds
therefore and the statutory and other authorities relied upon.
Responses to written motions must be filed within seven days after the
motion is filed and posted on the Commission's website, or such other
deadline as the rules of practice provide or as the Commission or
presiding officer may establish. Responses to oral motions made during
a hearing may be made orally to the Commission or to the presiding
officer if one has been appointed, unless directed to reduce the
response to writing for subsequent consideration.
(c) Replies. Unless the Commission or presiding officer otherwise
provides, no reply to a response or any further responsive document may
be filed.
(d) Rulings. The Commission or the presiding office may rule on a
motion in writing, or orally during a hearing. A ruling may be issued
immediately, without waiting for a response, whenever the person
propounding the motion asserts that all affected persons have been
contacted and agree not to oppose the motion or when the Commission in
its discretion determines that immediate action is appropriate.
Sec. 3010.161 Motions for waiver.
(a) Any person may file a motion requesting that any requirement
imposed by regulation, order, ruling, or Commission, Chairman, or
presiding officer request be waived.
(b) Motions for waiver will not be entertained unless timely filed
so as to permit disposition of the motion prior to the date specified
for the requirement for which waiver is requested. The pendency of a
motion for waiver does not excuse any person from timely meeting the
requirement for which the waiver is requested.
(c) Motions for waiver may be granted in whole or in part to the
extent permitted by law upon a showing of good cause and that such
waiver will be consistent with the public interest and will not unduly
prejudice the interests of other participants.
Sec. 3010.162 Motions for continuances and extensions of time.
(a) Any person may file a motion requesting the continuance of a
hearing or the extension of time for any deadline.
(b) The motion should be filed before the expiration of the
specified time for the deadline for preforming the act for which the
continuance or extension is requested.
(c) The motion shall only be granted upon consideration of the
potential adverse impact, if any, on other participants and the overall
impact on the procedural schedule.
Sec. 3010.163 Motions for late acceptance.
(a) Any person may file a motion requesting that the Commission or
the presiding officer accept any material filed by that person after an
established filing deadline.
(b) The motion should be filed prior to or concurrent with the
filing of any material filed after the established deadline.
(c) The Commission or the presiding officer are under no obligation
to further consider any material filed after an established deadline,
unless late acceptance is approved by the Commission or presiding
officer. Posting late filed material to the Commission's website alone
is not an indication that the material will be considered.
Sec. 3010.164 Motions to strike.
(a) Any person may, by motion, request that any material be
stricken from consideration in any proceeding.
(b) Motions to strike are requests for extraordinary relief that
must be supported with justification for why the material should be
stricken from consideration. Motions to strike shall not be used as a
substitute for rebuttal testimony, briefs, comments, or any other form
of pleading.
Sec. 3010.170 Information requests.
(a) An information request is an informal discovery mechanism used
at the discretion of the Commission, the Chairman of the Commission, or
a presiding officer to obtain information that is likely to materially
assist the
[[Page 9629]]
Commission in the conduct of its proceedings, in the preparation of its
reports, or in the performance of its functions under title 39 of the
United States Code.
(b) Information requests may be used to:
(1) Require the Postal Service in any proceeding, or any party to a
Commission hearing on the record, to provide any information, and
associated documents or things in its possession or control, or any
information, and any associated documents or things that it can obtain
through reasonable effort and expense; or
(2) Request that any person other than the Postal Service or a
party to a Commission hearing on the record provide any information,
and any associated documents or things that it can obtain through
reasonable effort and expense.
(c) Information that can be sought by information request includes,
but is not limited to, explanations, confirmations, factual
descriptions, data, documents, and other materials. Documents refer to
hard copy or electronic conveyance of information and may be stored in
any medium from which information can be obtained either directly or,
if necessary, after translation into a reasonably usable form.
Documents include, but are not limited to, writings, notes, graphs,
charts, data files, emails, drawings, photographs, and images.
Materials include all matter, other than documents, that convey
information.
(d) Information requests shall describe the information, documents,
or things sought; shall briefly explain the reason for the request; and
shall specify a date by which the response(s) shall be due.
(e) Any person may request the issuance of an information request
by motion. The motion shall list the information, documents, or things
sought; shall explain the reasons the information request should be
issued; and shall demonstrate why the information sought is relevant
and material to the Commission's duties under title 39 of the United
States Code. Upon consideration of the motion and any responses, the
Commission, the Chairman of the Commission, or presiding officer may
issue an information request that includes some or all of the proposed
questions or modified versions of some or all of the proposed
questions. Motions that do not result in the issuance of an information
request prior to the Commission's final decision in the docket shall be
deemed denied.
Subpart E--Proceedings Using Notice and Comment Procedures
Sec. 3010.200 Applicability.
(a) Except as otherwise provided in this section, the Commission
shall conduct proceedings in conformance with the notice and comment
procedures of this subpart whenever:
(1) The Commission is considering the issuance, amendment, or
repeal of any Commission rule or regulation;
(2) The Commission is seeking information to inform potential
future Commission action with or without the issuance of a final
decision; or
(3) The Commission in the exercise of its discretion determines it
is appropriate.
(b) Unless the Commission orders otherwise, the rules in this
subpart shall not apply to proceedings governed by subpart F of this
part (Proceedings with an Opportunity for a Hearing on the Record). The
rules in this subpart also shall not apply to the following parts of
subchapter D of chapter III (Special Rules of Practice for Specific
Proceeding Types) of this title: part 3020 (Rules Applicable to
Requests for Changes in the Nature of Postal Services) of this chapter,
part 3021 (Rules for Appeals of Postal Service Determinations to Close
or Consolidate Post Offices) of this chapter, part 3022 (Rules for
Complaints) of this chapter, part 3023 (Rules for Rate or Service
Inquiries) of this chapter, and part 3024 (Special Rules for Complaints
Alleging Violations of 39 U.S.C. 404a) of this chapter.
Sec. 3010.201 Initiation of a proceeding.
(a) The Commission may on its own motion initiate a proceeding
under this subpart by issuing a notice and order initiating proceeding
pursuant to Sec. 3010.151.
(b)(1) Any person may request the initiation of a proceeding under
this subpart by filing a petition with the Commission pursuant to the
filing requirements of subpart B of this part. The petition shall:
(i) Provide the name, address, phone number and other pertinent
contact information of the requesting person;
(ii) Identify the subject matter of the petition;
(iii) Provide specific proposals, including specific language, in
regard to the subject matter of the petition;
(iv) Provide all facts, views, arguments, and data deemed to
support the action requested; and
(v) Describe the impact of the proposal on the person filing the
petition, the Postal Service, the mailing community, and the
Commission, as applicable.
(2) Upon consideration of the petition, the Commission in its
discretion may initiate a proceeding under this subpart by issuing a
notice and order initiating proceeding pursuant to Sec. 3010.151,
reject the petition, or defer a decision whether to grant or reject the
petition. The Commission shall provide an explanation for the rejection
or delay in consideration of any petition.
(c) Subparts A, B, C, and D of this part apply to the initiation
and conduct of proceedings under this subpart E.
Sec. 3010.202 Participation in notice and comment proceedings.
(a) Comments. The primary method for participating in notice and
comment proceedings is through the filing of comments in accordance
with Sec. 3010.140. The notice and order initiating proceeding filed
pursuant to Sec. 3010.151 shall provide the deadline for filing
comments, and if provided for, reply comments.
(b) Information requests. The Commission, Chairman, or presiding
officer may in its or their own discretion or, if requested by an
interested person by motion, issue information requests pursuant to
Sec. 3010.170.
(c) Technical conferences. The Commission, Chairman, or presiding
officer may in its or their own discretion or, if requested by an
interested person by motion, convene one or more off the record
technical conferences to consider the matters being considered.
(d) Oral presentations. The Commission, Chairman, or presiding
officer may in its or their own discretion or, if requested by an
interested person by motion, permit oral presentations regarding the
matters being considered.
(e) Other procedures. The Commission, the Chairman, or presiding
officer may order additional procedures as appropriate.
Sec. 3010.203 Commission action.
(a) The Commission shall consider all relevant comments and
material of record before taking any final action. Any final decision
which includes the issuance, amendment, or repeal of a rule or
regulation, shall, at a minimum, publish the final rule or regulation
in the Federal Register.
(b) Any issuance, amendment, or repeal of a rule or regulation will
be made effective not less than 30 days from the time it is published
in the Federal Register except as otherwise specified in paragraph (c)
of this section. If the order issuing, amending, or repealing a rule
does not specify an effective date, the effective date shall be 30 days
after the date on which the Commission's order is published in the
[[Page 9630]]
Federal Register, unless a later date is required by statute or is
otherwise specified by the Commission.
(c) For good cause shown by publication with the rule, any
issuance, amendment, or repeal of a rule may be made effective in less
than 30 days from the time the Commission's order is published in the
Federal Register.
(d) Rules involving any military, naval or foreign affairs function
of the United States; matters relating to agency management or
personnel, public property, loans, grants, benefits or contracts; rules
granting or recognizing exemption or relieving restriction; rules of
organization, procedure or practice; or interpretative rules; and
statements of policy may be made effective without regard to the 30-day
requirement.
Subpart F--Proceedings With an Opportunity for a Hearing on the
Record.
Sec. 3010.300 Applicability.
The Commission shall conduct proceedings on the record with the
opportunity for a hearing subject to this subpart whenever:
(a) The Commission determines that a complaint filed under part
3022 of this chapter raises one or more material issues of fact or law
in accordance with Sec. 3022.30 of this chapter and a proceeding on
the record with the opportunity for a hearing is necessary;
(b) The Commission determines that the streamlined procedures in
part 3020 of this chapter applicable to a Postal Service request to
change the nature of postal services which will generally affect
service on a nationwide or substantially nationwide basis are not
appropriate; or
(c) The Commission in the exercise of its discretion determines it
is appropriate.
Sec. 3010.301 Notice of proceeding.
Whenever the Commission determines that a proceeding will be held
on the record with an opportunity for a hearing under this part, it
shall publish notice of the proceeding in the Federal Register pursuant
to Sec. 3010.151.
Sec. 3010.302 Prehearing conferences.
(a) Initiation and purposes. The Commission or the presiding
officer, if one has been appointed, may direct the parties in a
proceeding to appear for a prehearing conference for the purposes of
considering all possible ways of expediting the proceeding, including
those in paragraph (e) of this section. Prehearing conference
procedures shall be rigorously pursued by all parties.
(b) Who presides. The presiding officer, if one has been
designated, shall preside over prehearing conferences. If a presiding
officer has not been designated or is otherwise unavailable for a
prehearing conference, then the ranking Commissioner in attendance
shall be considered the presiding officer for that conference. The
presiding officer shall open and close each prehearing conference
session and shall be responsible for controlling the conduct of the
conference.
(c) Informal off-the-record procedures. In order to make the
prehearing conference as effective as possible, the presiding officer
may direct that conferences be held off the record, without the
presiding officer present. Informal off-the-record conferences shall be
presided over by the Public Representative or such other person as the
parties may select. At off-the-record conferences, parties shall be
expected to reach agreement on those matters, which will expedite the
proceeding, including the matters specified in the notice of the
prehearing conference, in the ruling of the presiding officer directing
that the off-the-record conference be held, and in paragraph (e) of
this section. A report on the results of off-the-record conferences
shall be made to the presiding officer on the record at a time
specified by the presiding officer. The presiding officer shall then
determine the further prehearing procedures, if any, to be followed.
(d) Required preparation and cooperation of all parties. All
parties in any proceeding before the Commission are required and
expected to come to prehearing conferences fully prepared to discuss in
detail and resolve all matters, such as those specified in paragraph
(e) of this section, in the notice of the prehearing conference, and in
such other notice or agenda as may have been issued by the Commission
or the presiding officer. All parties are required and expected to
cooperate fully at all stages of the proceeding to achieve these
objectives through thorough advance preparation for the prehearing
conference, including informal communications between the parties,
requests for discovery and appropriate discovery procedures at the
earliest possible time and no later than at the prehearing conference,
and the commencement of preparation of evidence and cross-examination.
The failure of any party to appear at the prehearing conference or to
raise any matters that could reasonably be anticipated and resolved at
the prehearing conference shall not be permitted to unduly delay the
progress of the proceeding and shall constitute a waiver of the rights
of the party with regard thereto, including all objections to the
agreements reached, actions taken, or rulings issued by the presiding
officer with regard thereto.
(e) Matters to be pursued. At the prehearing conference, the
presiding officer and the parties shall consider and resolve such
matters as:
(1) The definition and simplification of the issues, including any
appropriate explanation, clarification, or amendment of any proposal,
filing, evidence, complaint or other pleading filed by any party;
(2) Arrangements for timely completion of discovery from the Postal
Service or any other party of information regarding any issues in the
proceeding, prior filings, evidence or pleadings of any party;
(3) Procedures for timely discovery with regard to any future
evidentiary filings of any party;
(4) Stipulations, admissions or concessions as to evidentiary
facts, and agreements as to documentary matters, exhibits and matters
of official notice, which will avoid unnecessary proof or dispute;
(5) The possible grouping of parties with substantially like
interests for purposes of presenting evidence, making and arguing
motions and objections, cross-examining witnesses, filing briefs, and
presenting oral argument to the Commission or presiding officer;
(6) Disclosure of the number, identity and qualifications of
witnesses, and the nature of their testimony, particularly with respect
to the policies of the Act and, as applicable according to the nature
of the proceeding;
(7) Limitation of the scope of the evidence and the number of
witnesses in order to eliminate irrelevant, immaterial, or cumulative
and repetitious evidence;
(8) Procedures to direct and control the use of discovery prior to
the hearing and submission of written testimony and exhibits on matters
in dispute so as to restrict to a bare minimum the amount of hearing
time required for oral cross-examination of witnesses;
(9) Division of the proceeding where practicable into two or more
phases for separate and, if advisable, simultaneous hearings;
(10) Establishment of dates for the submission and service of such
written testimony and exhibits as may be appropriate in advance of the
hearing;
(11) The order of presentation of the evidence and cross-
examination of witnesses so that the hearing may proceed in the most
expeditious and orderly manner possible; and
[[Page 9631]]
(12) All other matters which would aid in an expeditious
disposition of the proceeding, including consent of the parties to the
conduct of the entire proceedings off the record.
(f) Rulings by presiding officer. (1) The presiding officer at a
prehearing conference, shall, irrespective of the consent of the
parties, dispose of by ruling:
(i) Any of the procedural matters itemized in paragraph (e) of this
section; and
(ii) Such other procedural matters on which the presiding officer
is authorized to rule during the course of the hearing if ruling at
this stage would expedite the proceeding.
(2) Either on the record at the conclusion of such prehearing
conference, or by order issued shortly thereafter, the presiding
officer shall state the agreements reached by the parties, the actions
taken, and the rulings made by the presiding officer. Such rulings
shall control the subsequent course of the proceedings unless modified
during the hearing to prevent manifest injustice.
Sec. 3010.303 Hearing format.
(a) In any case noticed for a proceeding to be determined on the
record, the Commission or the presiding officer, if one has been
appointed, may determine whether to hold a public hearing, or to hold a
hearing by written submission of material only. A public hearing may be
held if a hearing is requested by any party to the proceeding or if the
Commission determines that a hearing is in the public interest.
Generally, public hearings provide an opportunity for oral cross-
examination of witnesses whereas hearings held by written submission of
material only do not.
(b) Once established, requests to change the hearing format may be
proposed by motion, or by the Commission's or presiding officer's own
motion.
(c) Only representatives of the Commission, parties that have
intervened in a proceeding, or persons intending to intervene prior to
the deadline for notices of intervention may participate in a public
hearing. However, public hearings are generally open to the public for
observation. Public hearings may be closed to the public for good
cause, or when confidential material is being presented.
Sec. 3010.304 Scheduling order.
(a) When issued. Upon consideration of the outcome of the
prehearing conference, if held, and a determination of the need for a
public hearing, the Commission, or the presiding officer if one has
been appointed, shall issue a scheduling order. The scheduling order
may be combined with any other order or ruling that the Commission or
the presiding officer may issue. The scheduling order may be
periodically modified as warranted.
(b) Content of scheduling order. The content of the scheduling
order shall be tailored to the specifics of the matter before the
Commission, including any requirement for a public hearing. The
Commission or the presiding officer shall consider scheduling the
following:
(1) A deadline for conclusion of discovery on proponent's direct
case;
(2) A deadline to request oral cross-examination of proponent's
witnesses;
(3) A deadline for designation of written cross-examination on
proponent's direct case;
(4) The time and date for a public hearing on proponent's direct
case, or the date and procedures for entering a proponent's direct case
into evidence in a hearing by written submission of material only;
(5) A deadline for parties other than the proponent to file
testimony in support of, or in rebuttal to, the proponent's direct
case;
(6) A deadline for conclusion of discovery on testimony supporting
or rebutting the proponent's direct case;
(7) A deadline to request oral cross-examination of other parties'
witnesses;
(8) A deadline for designation of written cross-examination on
other parties' testimony;
(9) The time and date for a public hearing on other parties'
testimony, or the date and procedures for entering other parties'
testimony in a hearing by written submission of material only;
(10) A deadline for the proponent to file surrebuttal testimony to
other parties' direct cases;
(11) A deadline for conclusion of discovery on any proponent's
surrebuttal rebuttal testimony;
(12) A deadline to request oral cross-examination of proponent's
surrebuttal witnesses;
(13) A deadline for designation of written cross-examination on
proponent's surrebuttal testimony;
(14) The time and date for a public hearing on a proponent's
surrebuttal testimony, or the date and procedures for entering a
proponent's surrebuttal testimony in a hearing by written submission of
material only;
(15) A deadline for filing briefs;
(16) A deadline for filing reply briefs; and
(17) A deadline for requesting oral argument.
(c) Witness availability. Parties shall promptly file notice of
potential witness unavailability to appear at any public hearing as
soon as known. Witness unavailability will be considered when
establishing the initial, or any subsequent, procedural schedules. Once
the initial scheduling order is issued, but no later than ten calendar
days prior to a scheduled hearing, parties may file notice of
preferences for dates and times of witness appearance at any public
hearing.
(d) Subsequent scheduling of public hearings. At the adjournment of
any public hearing (including prehearing conferences), the Commission,
or the presiding officer if appointed, shall announce when the hearing
will reconvene. If an announcement is not made, the Commission or the
presiding officer shall announce the time, date, and location of the
subsequent hearing, or prehearing conference in writing by notice,
order, or presiding officer ruling.
Sec. 3010.310 Discovery--general policy.
(a) Sections 3010.311 through 3010.313 allow discovery reasonably
calculated to lead to admissible evidence during a proceeding noticed
for hearing on the record. In general, discovery against a party will
be scheduled to end prior to the receipt into evidence of that party's
direct case. An exception to this procedure shall operate in all
proceedings set for hearing when a party needs to obtain information
(such as operating procedures or data) available only from the Postal
Service. Such discovery requests are permissible only for the purpose
of the development of rebuttal testimony and may be made up to 20 days
prior to the filing date for final rebuttal testimony.
(b) The discovery procedures set forth in Sec. Sec. 3010.311
through 3010.313 are not exclusive. Parties are encouraged to engage in
informal discovery whenever possible to clarify exhibits and testimony.
The results of these efforts may be introduced into the record by
stipulation, by supplementary testimony or exhibit, by presenting
selected written interrogatories and answers for adoption by a witness
at the hearing, or by other appropriate means. In the interest of
reducing motion practice, parties also are expected to use informal
means to clarify questions and to identify portions of discovery
requests considered overbroad or burdensome.
(c) If a party or an officer or agent of a party fails to obey an
order of the Commission or the presiding officer to provide or permit
discovery pursuant to Sec. Sec. 3010.311 through 3010.313, the
Commission or the presiding officer may make such orders in regard to
the failure as are just, and among others,
[[Page 9632]]
may direct that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the
purposes of the proceeding in accordance with the claim of the parties
obtaining the order, or prohibit the disobedient party from introducing
designated matters in evidence, or strike the evidence, complaint or
pleadings or parts thereof.
Sec. 3010.311 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 party may propound to any other
party in a proceeding written, sequentially numbered interrogatories,
by witness, requesting non-privileged information relevant to the
subject matter and reasonably calculated to lead to the discovery of
admissible evidence in such proceeding, to be answered by the party
served, who shall furnish such information as is available to the
requesting party. A party through interrogatories may require any other
party to identify each person whom the other party expects to call as a
witness at the hearing and to state the subject matter on which the
witness is expected to testify. The party propounding the
interrogatories shall file them with the Commission and serve them on
the answering party. Follow-up interrogatories to clarify or elaborate
on the answer to an earlier discovery request may be filed after the
initial discovery period ends. They must be filed within seven days of
receipt of the answer to the previous interrogatory unless
extraordinary circumstances are shown.
(b) Answers. Answers to discovery requests shall be prepared so
that they can be incorporated as written cross-examination. Each answer
shall begin on a separate page, identify the individual responding and
the relevant testimony number, if any, the party who asked the
question, and the number and text of the question. 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 file the answers with the
Commission and serve them on the requesting party within 14 days of the
filing of the interrogatories or within such other period as may be
fixed by the Commission or presiding officer, but before the conclusion
of the hearing.
(c) Objections. In the interest of expedition, the grounds for
every objection shall be clearly and fully stated. If an objection is
made to part of an interrogatory, the part shall be specified. A party
claiming privilege shall identify the specific evidentiary privilege
asserted and state the reasons for its applicability. A party claiming
undue burden shall state with particularity the effort that 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 shall be filed with the Commission and
served on the requesting party within ten days of the filing of the
interrogatories. Any ground not stated in a timely objection is waived
unless excused by the Commission or presiding officer for good cause
shown.
(d) Motions to compel responses to discovery. Motions to compel a
more responsive answer, or an answer to an interrogatory to which an
objection was interposed, should be filed within 14 days of the answer
or objection to the discovery request. The text of the discovery
request, and any answer provided, should be provided as an attachment
to the motion to compel. Parties who have objected to interrogatories
which are the subject of a motion to compel shall have seven days to
answer. Answers will be considered supplements to the arguments
presented in the initial objection.
(e) Compelled answers. The Commission, or the presiding officer,
upon motion of any party to the proceeding, may compel a more
responsive answer, or an answer to an interrogatory to which an
objection has been raised if the objection is overruled, or may compel
an additional answer if the initial answer is found to be inadequate.
Such compelled answers shall be filed with the Commission and served on
the compelling party within seven days of the date of the order
compelling an answer or within such other period as may be fixed by the
Commission or presiding officer, but before the conclusion of the
hearing.
(f) Supplemental answers. The individual or party who has answered
interrogatories is under the duty to seasonably amend a prior answer if
the individual or party obtains information upon the basis of which the
individual or party knows that the answer was incorrect when made or is
no longer true. Parties shall serve supplemental answers to update or
to correct responses whenever necessary, up until the date the answer
could have been accepted into evidence as written cross-examination.
Parties filing supplemental answers shall indicate whether the answer
merely supplements the previous answer to make it current or whether it
is a complete replacement for the previous answer.
(g) Orders. The Commission or the presiding officer may order that
any party or person shall answer on such terms and conditions as are
just and may for good cause make any protective order, including an
order limiting or conditioning interrogatories, as justice requires to
protect a party or person from undue annoyance, embarrassment,
oppression, or expense.
Sec. 3010.312 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 party may serve on any other
party to the proceeding a request to produce and permit the party
making the request, or someone acting on behalf of the requesting party
or the requesting party's agent to inspect and copy any designated
documents or things that constitute or contain matters, not privileged,
that are relevant to the subject matter involved in the proceeding or
reasonably calculated to lead to the discovery of admissible evidence
and that are in the custody or control of the party to whom the request
is addressed. 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 party requesting the
production of documents or things shall file its request with the
Commission and serve the request on the responding party.
(b) Answers. The party responding to the request shall file an
answer with the Commission and serve the answer on the requesting party
within 14 days after the request is filed, or within such other period
as may be fixed by the Commission or presiding officer. The answer
shall state, with respect to each item or category, that inspection
will be permitted as requested unless the
[[Page 9633]]
request is objected to pursuant to paragraph (c) of this section. The
responding party may produce copies of documents or of electronically
stored information in lieu of permitting inspection. Production must be
completed no later than the time for inspection specified in the
request unless good cause is shown.
(c) Objections. In the interest of expedition, the grounds for
objection shall be clearly and fully stated. If an objection is made to
part of an item or category, the part shall be specified. Any objection
must state whether any responsive materials are being withheld on the
basis of that objection. A party claiming privilege shall identify the
specific evidentiary privilege asserted and state with particularity
the reasons for its applicability. A party claiming undue burden shall
state with particularity the effort that would be required to answer
the request, providing estimates of cost and work hours required, to
the extent possible. Objections shall be filed with the Commission and
served on the requesting party within ten days of the request for
production. The responding party may state an objection to a request to
produce electronically stored information. If it objects to the form of
the documents or things requested (or if no form was specified in the
request), the responding party must state the form or forms it intends
to use to produce the requested information.
(d) Motions to compel requests for production of documents or
things for purposes of discovery. Motions to compel shall be filed
within 14 days of the answer or objection to the discovery request. The
text of the discovery request, and any answer provided, should be
provided as an attachment to the motion to compel. Parties who have
objected to requests for production of documents or things which are
the subject of a motion to compel shall have seven days to answer.
Answers will be considered supplements to the arguments presented in
the initial objection.
(e) Compelled answers. Upon motion of any party to the proceeding
to compel a response to discovery, as provided in paragraph (d) of this
section, the Commission or the presiding officer may compel production
of documents or things to which an objection is overruled. Such
compelled documents or things shall be made available to the party
making the motion within seven days of the date of the order compelling
production or within such other period as may be fixed by the
Commission or presiding officer, but before the conclusion of the
hearing.
(f) Orders and rulings. The Commission or the presiding officer may
direct any party or person to respond to a request for inspection on
such terms and conditions as are just and may for good cause impose any
protective conditions, including limitations or preconditions for
inspections, as justice requires to protect a party or person from
undue annoyance, embarrassment, oppression, or expense.
Sec. 3010.313 Requests for admissions for purpose of discovery.
(a) Service and content. In the interest of expedition, any party
may serve upon any other party 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. Each requested admission shall be set forth
separately and shall be deemed admitted unless within 14 days after the
request is filed (or such other period as may be fixed by the
Commission or presiding officer) the party to whom the request is
directed files a written answer denying the requested admission
pursuant to paragraph (c) of this section or objecting pursuant to
paragraph (d) of this section. The party requesting an admission shall
file its request with the Commission and serve the request on the
responding party.
(b) Answers. Answers that fail to admit a matter as requested shall
specifically deny the matter or set forth in detail the reasons why the
answering party cannot truthfully admit or deny the matter. A denial
shall fairly meet the substance of the requested admission. When a
party qualifies an answer or denies only a part of the admission
requested, the party shall specify so much of the requested admission
as is true and qualify or deny the remainder. A failure to admit or
deny for lack of information or knowledge shall not be made unless the
responding party states that it has made a reasonable inquiry and that
information known or readily obtainable by the party is insufficient to
enable the party to admit or deny. A party who answers a request for
admission shall file its answer with the Commission and serve the
answer on the requesting party.
(c) Objections. If an objection is made, the grounds for such
objection shall be clearly and fully stated. If an objection is made to
part of an item, the part to which an objection is made shall be
specified. A party claiming privilege shall identify the specific
evidentiary privilege asserted and state the reasons for its
applicability. A party claiming undue burden shall state with
particularity the effort that would be required to answer the request,
providing estimates of cost and work hours required to the extent
possible. Objections shall be filed with the Commission and served on
the requesting party, within ten days of the request for admissions.
(d) Motions to compel responses to requests for admissions. The
party who has requested an admission may move to determine the
sufficiency of the answers or objections. Motions to compel a more
responsive answer, or an answer to a request to which an objection was
interposed, shall be filed within 14 days of the answer or objection to
the request for admissions. The text of the request for admissions, and
any answer provided, should be provided as an attachment to the motion
to compel. Parties who have objected to requests for admissions which
are the subject of a motion to compel shall have seven days to file a
response. Responses will be considered supplements to the arguments
presented in the initial objection.
(e) Compelled answers. The Commission or the presiding officer may
compel answers to a request for admissions to which an objection has
been raised if the objection is overruled. Such compelled answers shall
be filed with the Commission and served on the requesting party within
seven days of the date of the order compelling production or within
such other period as may be fixed by the Commission or the presiding
officer, but before the conclusion of the hearing. If the Commission or
presiding officer determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is
admitted or that an amended answer be filed.
Sec. 3010.320 Settlement conferences.
Any party to a proceeding may submit offers of settlement or
proposals of adjustment at any time and may request a conference
between the parties to consider such offers or proposals. The
Commission or the presiding officer shall afford the parties
appropriate opportunity prior to or during the hearing for conferences
for the purpose of considering such offers or proposals as time, the
nature of the proceeding, and the public interest permit. Unaccepted
offers of settlement or adjustment and proposed stipulations not agreed
to shall be privileged and shall not be admissible in evidence against
any party claiming such privilege.
[[Page 9634]]
Sec. 3010.321 Hearings.
(a) How convened. (1) Hearings shall be convened by the issuance of
a notice, order, or presiding officer's ruling that is published in the
Federal Register. Only the first session of a public hearing need be
noticed and published in the Federal Register. All subsequent sessions
within a docket are to be considered part of the same hearing. If there
is a prehearing conference, the prehearing conference is to be
considered the first hearing session in that docket.
(2) At the adjournment of each hearing session, the presiding
officer responsible for the conduct of that hearing session shall
announce if and when the hearing will reconvene. If an announcement is
not made at the adjournment of the hearing session, the Commission or
presiding officer shall announce the time, date, and location of any
subsequent hearing, or prehearing conference, in writing by notice,
order, or presiding officer ruling.
(b) Who presides. The presiding officer, if designated, shall
preside over a public hearing. If a presiding officer has not been
designated or is otherwise unavailable for a hearing, then the ranking
Commissioner in attendance shall be considered the presiding officer
for that hearing. The presiding officer shall open and close each
session of the hearing, and shall be responsible for controlling the
conduct of the hearing.
(c) Entering of appearances. The presiding officer before whom the
hearing is held will cause to be entered on the record all appearances
together with a notation showing on whose behalf each such appearance
has been made.
(d) Witnesses. All witnesses are expected to be available for
public hearings. Unless otherwise ordered by the presiding officer, a
witness need only attend a hearing on those days scheduled for entering
that witness's testimony. Subject to the discretion and prior approval
of the presiding officer, a witness may be excused from appearing at a
hearing and may have the witness's written testimony and cross-
examination entered into evidence by counsel.
(e) Order of presentations. (1) The proponent of a matter before
the Commission shall present the proponent's direct case first. In
matters initiated by the Postal Service, the Postal Service shall be
considered the proponent. In complaint proceedings under section 3662
of the Act, the complainant shall be considered the proponent. The
proponent also shall be provided an opportunity to respond to any
rebuttal to the proponent's direct case. In all other instances, the
Commission or the presiding officer shall determine the order of
presentation.
(2) The order of presentations by parties other than the proponent
shall be determined by the Commission or the presiding officer.
(3) The Commission or presiding officer shall announce the order of
presentation of parties and individual witnesses prior to hearing
sessions and shall issue such other procedural orders as may be
necessary to assure the orderly and expeditious conclusion of the
hearing. Parties may present their preferences for order of appearance
to the Commission or the presiding officer orally at a hearing or by
filing a notice prior to the scheduled hearing date. Parties who
disagree with a proposed order of appearances may move for a revised
order of appearances either orally at a hearing or by filing a written
motion pursuant to Sec. 3010.160.
(f) Swearing in of witnesses. (1) Witnesses attending a hearing
whose testimony is to be taken shall be sworn, or shall affirm, before
their testimony shall be deemed evidence in the proceeding or any
questions are put to them. The witness shall be sworn by means of the
following (or an equivalent): ``Please raise your right hand. Do you
solemnly swear (or affirm), that the testimony that you are about to
give is the truth, the whole truth, and nothing but the truth? Please
state your full name.''
(2) The oath shall be given upon the first appearance of the
witness providing testimony. Upon subsequent appearances, the witness
is to be reminded by the presiding officer that the witness remains
under oath for the duration of the proceeding.
(3) Witnesses not attending a hearing whose testimony is entered by
counsel during a hearing shall attach a signed declaration that the
testimony being submitted is that of the witness. A declaration shall
be included with each piece of written testimony, and each set of
written cross-examination. The declaration shall state the following
(or an equivalent): ``Declaration of [witness name]. I, [witness name],
hereby declare under penalty of perjury that: The [testimony,
designated responses to written cross-examination] filed under my name
were prepared by me or under my direction; and were I to [provide oral
testimony, respond orally to the questions appearing in the
interrogatories], my answers would be the same.''
(4) Hearings that are conducted by the written submission of
testimony only shall also attach written declarations to testimony and
cross-examination as described above.
(g) Presentation of the evidence--(1) Presentations by parties.
Each party shall have the right to present evidence, cross-examine
witnesses (limited to testimony adverse to the party conducting the
cross-examination), and to present objections, motions, and arguments.
The case-in-chief of parties other than the proponent shall be in
writing and shall include the party's direct case and rebuttal, if any,
to the initial proponent's case-in-chief. A party's presentation may be
accompanied by a trial brief or legal memoranda. Legal memoranda on
matters at issue are generally welcome at any stage of the proceeding.
Parties will be given an opportunity to rebut presentations of other
parties, including an opportunity for the initial proponent to present
surrebuttal evidence. New affirmative matter (not in reply to another
party's direct case) should not be included in rebuttal testimony or
exhibits. When objections to the admission or exclusion of evidence
before the Commission or the presiding officer are made, the grounds
relied upon shall be stated. Formal exceptions to rulings are
unnecessary.
(2) Written testimony. (i) Written testimony shall be offered in
evidence by motion. The motion shall be made orally during a hearing,
or in writing when the hearing is conducted by the written submission
of testimony only. When a party moves to enter testimony into the
record, three hard copies of the document shall simultaneously be
submitted to the Commission for the record. The copies are to be
printed single-sided, and not stapled, hole-punched, or bound, but may
be fastened together by paper or binder clip, or equivalent.
(ii) Witnesses shall be provided an opportunity to verify that the
written testimony they are sponsoring is their testimony and that it
would be the same if given orally. The witness, or counsel, shall state
the original filing date of the testimony and identify all subsequent
filings that amended the original testimony. If there are any final
corrections to the testimony, the corrections may be noted on the hard
copies submitted to the Commission. However, the witness shall be
required to file errata to the testimony within seven days of the
hearing, making corrections only to the extent as identified during the
hearing. Any other changes shall be requested separately by motion to
amend the record.
(iii) Parties shall be provided an opportunity to object to all or
part of a witness's written testimony prior to
[[Page 9635]]
entering that testimony into the record. Objections that have not
previously been made in writing at least 14 days prior to the hearing
date shall be granted only under extraordinary circumstances.
(iv) After resolution of all objections, the presiding officer
shall order the testimony entered into the record as evidence. Unless
otherwise ordered by the presiding officer, the written testimony shall
not be copied into the hearing transcript.
(3) Library references. (i) Library references sponsored by a
witness and associated with the witness's written testimony or written
cross-examination may be offered in evidence by motion. The motion
shall be made orally during a public hearing, or in writing for a
hearing that is conducted by the written submission of testimony only.
(ii) Witnesses shall be provided an opportunity to verify that the
library reference is their library reference and to affirm that they
are in fact sponsoring the library reference. If a witness
inadvertently fails to verify and affirm that the witness is sponsoring
a library reference that is cited in written testimony or in response
to written cross-examination, it will be presumed that the library
reference is to be included in the record to the extent specified in
the notice of the filing of the library reference.
(iii) Parties shall be provided an opportunity to object to all or
any part of the library reference being entered into the record.
Objections that have not been made in writing at least 14 days prior to
the hearing date shall be granted only under extraordinary
circumstances.
(iv) After resolution of all objections, the presiding officer
shall order the library reference be entered into the record as
evidence. Unless ordered by the presiding officer, library references
shall not be copied into the hearing transcript.
(4) Written cross-examination. (i) Written cross-examination will
be utilized as a substitute for oral cross-examination whenever
possible, particularly to introduce factual or statistical evidence.
Written cross-examination may be offered in evidence by motion. The
motion shall be made orally during a public hearing, or in writing for
a hearing that is conducted by the written submission of testimony
only. Written cross-examination proposed by parties other than the
party associated with the witness shall be considered first, followed
by that of the party of the witness.
(ii) Designations of written cross-examination should be filed with
the Commission and served on the answering party no later than three
working days before the scheduled appearance of a witness. Designations
shall identify every item to be offered as evidence, listing the party
who initially posed the discovery request, the witness and/or party to
whom the question was addressed (if different from the witness
answering), the number of the request and, if more than one answer is
provided, the dates of all answers to be included in the record. (For
example, ``PR-T1-17 to USPS witness Jones, answered by USPS witness
Smith (March 1, 1997) as updated (March 21, 1997)).'' When a party
designates written cross-examination, three hard copies of the
documents to be included shall simultaneously be submitted to the
Secretary. The documents are to be printed single-sided, and not
stapled, hole-punched, or bound, but may be fastened together by paper
or binder clip, or equivalent. The Secretary shall prepare for the
record a packet containing all materials designated for written cross-
examination in a format that facilitates review by the witness and
counsel.
(iii) A witness shall be provided an opportunity to verify that the
written cross-examination is that of the witness and to assert that if
the written cross-examination were being provided orally at the hearing
it would be that of the witness. If there are any final corrections to
the written cross-examination, the corrections may be noted on the hard
copies before submission to the Commission.
(iv) Parties shall be provided an opportunity to object to all or
any part of the written cross-examination prior to entering the
testimony into the record.
(v) After resolution of all objections, the presiding officer shall
order the written cross-examination entered into the record as
evidence. The presiding office shall direct that the written cross-
examination be copied into the hearing transcript.
(5) Oral cross-examination. (i) Oral cross-examination will be
permitted for clarifying written cross-examination and for testing
assumptions, conclusions, or other opinion evidence.
(ii) Notices of intent to conduct oral cross-examination should be
filed three or more working days before the announced appearance of the
witness and should include specific references to the subject matter to
be examined and page references to the relevant direct testimony and
exhibits. If no notices are filed, and the Commission or presiding
officer has no other reason for the witness to appear, the Commission
or the presiding officer, in their discretion, may excuse the witness
from appearing at the hearing and direct that the witness's testimony
be entered by counsel.
(iii) A party intending to use complex numerical hypotheticals, or
to question using intricate or extensive cross-references, shall
provide adequately documented cross-examination exhibits for the
record. Copies of these exhibits should be filed at least two full
business days before the scheduled appearance of the witness. They may
be filed online or delivered in hardcopy form to counsel for the
witness, at the discretion of the party. When presented, examination
exhibits are not to be considered record evidence. They are to be
transcribed into the record for reference only. If adopted by the
witness, the examination exhibit may be offered in evidence by motion.
(iv) At the conclusion of oral cross-examination, the witness shall
be given an opportunity to consult with counsel. Counsel shall then be
provided an opportunity to examine the witness for the purpose of
clarifying statements previously made during oral cross-examination.
(h) Institutional testimony. (1) This paragraph (h) is applicable
to testimony offered in evidence that is not sponsored by an individual
witness. This typically occurs when discovery questions are answered by
the institution, and not by an individual witness.
(2) When institutional responses are offered in evidence by any
party, the responding party shall make available at the hearing an
officer of the institution that has the authority to attest to the
authenticity and truthfulness of the responses, and that has the
knowledge to be subject to oral cross-examination in regard to the
responses. Section 3010.321 applies as if the officer of the
institution were an individual witness.
(i) Limitations on presentation of the evidence. The taking of
evidence shall proceed with all reasonable diligence and dispatch, and
to that end, the Commission or the presiding officer may limit
appropriately the number of witnesses to be heard upon any issue, the
examination by any party to specific issues, and the cross-examination
of a witness to that required for a full and true disclosure of the
facts necessary for the disposition of the proceeding and to avoid
irrelevant, immaterial, or unduly repetitious testimony.
(j) Motions during hearing. After a hearing has commenced, a
request may be made by motion to the presiding officer for any
procedural ruling or relief desired. Such motions shall specify the
ruling or relief sought, and state the grounds therefor and statutory
or other supporting authority. Motions made
[[Page 9636]]
during hearings may be stated orally upon the record, except that the
presiding officer may require that such motions be reduced to writing
and filed separately. Any party shall have the opportunity to answer or
object to such motions at the time and in the manner directed by the
presiding officer.
(k) Rulings on motions. The presiding officer is authorized to rule
upon any such motion not formally acted upon by the Commission prior to
the commencement of a prehearing conference or hearing where immediate
ruling is essential in order to proceed with the prehearing conference
or hearing, and upon any motion to the presiding officer filed or made
after the commencement thereof, except that no motion made to the
presiding officer, a ruling upon which would involve or constitute a
final determination of the proceeding, shall be ruled upon
affirmatively by the presiding officer except as a part of a presiding
officer's intermediate decision. This section shall not preclude a
presiding officer, within the presiding officer's discretion, from
referring any motion made in hearing to the Commission for ultimate
determination.
(l) 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. Any request
to correct a transcript shall be by motion filed no later than seven
days after the transcript, or notice of the availability of a
confidential transcript, is posted to the Commission's website.
Corrections or changes to actual testimony shall not be allowed.
Sec. 3010.322 Evidence--general.
(a) Form and admissibility. In all hearings, relevant and material
evidence which is not unduly repetitious or cumulative shall be
admissible. Witnesses whose testimony is to be taken shall be sworn, or
shall affirm, before their testimony shall be deemed evidence in the
proceeding or any questions are put to them.
(b) Documentary material--(1) General. Documents and detailed data
and information shall be presented as exhibits. Exhibits should be
self-explanatory. They should contain appropriate footnotes or
narrative explaining the source of each item of information used and
the methods employed in statistical compilations. The principal title
of each exhibit should state what it contains or represents. The title
may also contain a statement of the purpose for which the exhibit is
offered; however, this statement will not be considered part of the
evidentiary record. Where one part of a multi-part exhibit is based on
another part or on another exhibit, appropriate cross-references should
be made. Relevant exposition should be included in the exhibits or
provided in accompanying testimony. Testimony, exhibits and supporting
workpapers prepared for Commission proceedings that are premised on
data or conclusions developed in a library reference shall provide the
location of that information within the library reference with
sufficient specificity to permit ready reference, such as the page and
line, or the file and the worksheet or spreadsheet page or cell. Where
relevant and material matter offered in evidence is embraced in a
document containing other matter not material or relevant or not
intended to be put in evidence, the party offering the same shall
plainly designate the matter offered excluding the immaterial or
irrelevant parts. If other matter in such document is in such bulk or
extent as would unnecessarily encumber the record, it may be marked for
identification, and, if properly authenticated, the relevant and
material parts may be read into the record, or, if the Commission or
presiding officer so directs, a true copy of such matter in proper form
shall be received in evidence as an exhibit. Copies of documents shall
be delivered by the party offering the same to the other parties or
their attorneys appearing at the hearing, who shall be afforded an
opportunity to examine the entire document and to offer in evidence in
like manner other material and relevant portions thereof.
(2) Status of library references. Designation of material as a
library reference and acceptance in the Commission's docket section do
not confer evidentiary status. The evidentiary status of the material
is governed by Sec. 3010.321(g)(3).
(c) Commission's files. Except as otherwise provided in paragraph
(e) of this section, any matter contained in a report or other document
on file with the Commission may be offered in evidence by specifying
the report, document, or other file containing the matter so offered
and the report or other document need not be produced or marked for
identification.
(d) Public document items. Whenever there is offered in evidence
(in whole or in part) a public document, such as an official report,
decision, opinion or published scientific or economic statistical data
issued by any of the Executive Departments (or their subdivisions),
legislative agencies or committees, or administrative agencies of the
Federal Government (including Government-owned corporations) and such
document (or part thereof) has been shown by the offeror thereof to be
reasonably available to the public, such document need not be produced
or physically marked for identification, but may be offered in evidence
as a public document item by clearly identifying the document and the
relevant parts thereof.
(e) Designation of evidence from other Commission dockets. (1)
Parties may request that evidence received in other Commission
proceedings be entered into the record of the current proceeding. These
requests shall be made by motion, shall explain the purpose of the
designation, and shall identify material by page and line or paragraph
number.
(2) In proceedings to consider the appeal of a Postal Service
determination to close or consolidate a post office conducted pursuant
to part 3021 of this chapter, these requests must be made at least six
days before the date for filing the party's direct case. Oppositions to
motions for designations and/or requests for counter-designations shall
be filed within three days. Oppositions to requests for counter-
designations are due within two days.
(3) In all other proceedings subject to this section, these
requests must, in the absence of extraordinary circumstances, be made
at least 28 days before the date for filing the party's direct case.
Oppositions to motions for designations and/or requests for counter-
designations shall be filed within 14 days. Oppositions to requests for
counter-designations are due within seven days.
(4) In all proceedings subject to this section, the moving party
must submit two copies of the identified material to the Secretary at
the time requests for designations and counter-designations are made.
(f) Form of prepared testimony and exhibits. Unless the presiding
officer otherwise directs, the direct testimony of witnesses shall be
reduced to writing and offered either as such or as an exhibit. All
prepared testimony and exhibits of a documentary character shall, so
far as practicable, conform to the requirements of Sec. 3010.124(a)
and (b).
(g) Copies to parties. Except as otherwise provided in these rules,
copies of exhibits shall be furnished to the presiding officer and to
the parties or counsel during a hearing, unless the presiding officer
otherwise directs.
(h) Reception and ruling. The presiding officer shall rule on the
admissibility of evidence and otherwise control the reception of
evidence so as
[[Page 9637]]
to confine it to the issues in the proceeding.
(i) Offers of proof. Any offer of proof made in connection with any
ruling of the presiding officer rejecting or excluding proffered oral
testimony shall consist of a statement of the substance of the evidence
which counsel contends would be adduced by such testimony; and if the
excluded evidence consists of evidence in documentary or written form,
or of reference to documents or records, a copy of such evidence shall
be marked for identification and shall constitute the offer of proof.
(j) Official notice of facts. Official notice may be taken of such
matters as might be judicially noticed by the courts of the United
States or of any other matter peculiarly within the knowledge of the
Commission as an expert body. Any party shall, on timely request, be
afforded an opportunity to show the contrary.
Sec. 3010.323 Evidence--introduction and reliance upon studies and
analyses.
(a) Statistical studies. All statistical studies offered in
evidence in hearing proceedings or relied upon as support for other
evidence shall include a comprehensive description of the assumptions
made, the study plan utilized, the procedures undertaken, and
references from the academic literature supporting the procedures
undertaken. Machine-readable data files, program files, workbooks, and
all other necessary materials to enable independent replication of the
results or program output if requested by the Commission or parties
shall be provided in the form of a compact disk or other media or
method approved in advance by the Secretary. Where a computer analysis
is employed to obtain the result of a statistical study, all of the
submissions required by paragraph (b) of this section shall be
furnished, upon request. In addition, for each of the following types
of statistical studies, the following information should be provided:
(1) Market research. The following information shall be provided:
(i) A clear and detailed description of the sample, observational,
and data preparation designs, including definitions of the target
population, sampling frame, units of analysis, questionnaires or data
collection instruments, survey variables, and the possible values;
(ii) An explanation of methodology for the production and analysis
of the major survey estimates and associated sampling errors;
(iii) A presentation of response, coverage and editing rates, and
any other potential sources of error associated with the survey's
quality assurance procedures;
(iv) A discussion of data comparability over time and with other
data sources;
(v) A complete description and assessment of the effects of all
editing and imputation employed;
(vi) Identification of all applicable statistical models considered
and the reasons the model based procedures and/or models were selected
over other models or procedures, when model-based procedures are
employed; and
(vii) An explanation of all statistical tests performed and an
appropriate set of summary statistics summarizing the results of each
test.
(2) Other sample surveys. The following information shall be
provided:
(i) A clear description of the survey design, including the
definition of the universe under study, the sampling frame and units,
and the validity and confidence limits that can be placed on major
estimates; and
(ii) An explanation of the method of selecting the sample and the
characteristics measured or counted.
(3) Experimental analyses. The following information shall be
provided:
(i) A complete description of the experimental design, including a
specification of the controlled conditions and how the controls were
realized; and
(ii) A complete description of the methods of making observations
and the adjustments, if any, to observed data.
(4) Econometric studies. The following information shall be
provided:
(i) A presentation of the economic theory and assumptions
underlying the study;
(ii) A complete description of the econometric model(s) and the
reasons for each major assumption and specification;
(iii) The definition of the variables selected and the
justification for their selection;
(iv) For any alternative model whose computed econometric results
influenced the choice of the preferred model, a statement of the
reasons for rejecting that alternative, an identification of any
differences between that alternative and the preferred model with
respect to variable definitions, equation forms, data, or estimation
methods, and, upon request, the computed econometric results for that
alternative;
(v) A reference to a detailed description in a text, manual, or
technical journal for every econometric technique used in the
estimation process and the reasons for selecting the technique, or, in
the alternative, a description and analysis of the technique that is
sufficient for a technical evaluation;
(vi) Summary descriptions and source citations for all input data
and, upon request, a complete listing of the data. Complete
descriptions of any alterations, adjustments, or transformations made
to the data as received from the original sources, and the reasons for
making the alterations, adjustments, or transformations;
(vii) A complete report of the econometric results including, where
applicable coefficient estimates, standard errors and t-values,
goodness-of-fit statistics, other appropriate test statistics, the
variance/covariance matrix of the estimates, and computed residuals for
results computed from samples composed of fewer than 250 observations,
and, upon request, other computed residuals; and
(viii) Descriptions of all statistical tests of hypotheses and the
results of such tests.
(5) All other studies involving statistical methodology. The
following information shall be provided:
(i) The formula used for statistical estimates;
(ii) The standard errors of each component estimated;
(iii) Test statistics and the description of statistical tests and
all related computations, and final results; and
(iv) Summary descriptions of input data, and upon request the
actual input data shall be made available at the offices of the
Commission.
(b) Computer analyses. (1) In the case of computer studies or
analyses which are being offered in evidence, or relied upon as support
for other evidence, a foundation for the reception of such materials
must be laid by furnishing a general description of the program that
includes the objectives of the program, the processing tasks performed,
the methods and procedures employed, and a listing of the input and
output data and source codes (or a showing pursuant to paragraph (b)(3)
of this section as to why such codes cannot be so furnished) and such
description shall be furnished in all cases. For the purpose of
completing such foundation, the following additional items shall be
deemed presumptively necessary and shall be furnished upon request of a
party, the Commission, or the presiding officer, unless the presumption
is overcome by an affirmative showing. The following information shall
be provided:
(i) For all input data, designations of all sources of such data,
and
[[Page 9638]]
explanations of any modifications to such data made for use in the
program;
(ii) Definitions of all input and output variables or sets of
variables;
(iii) A description of input and output data file organization;
(iv) For all source codes, documentation sufficiently comprehensive
and detailed to satisfy generally accepted software documentation
standards appropriate to the type of program and its intended use in
the proceeding;
(v) All pertinent operating system and programming language
manuals;
(vi) If the requested program is user interactive, a representative
sample run, together with any explanation necessary to illustrate the
response sequence;
(vii) An expert on the design and operation of the program shall be
provided at a technical conference to respond to any oral or written
questions concerning information that is reasonably necessary to enable
independent replication of the program output; and
(viii) Computer simulation models offered in evidence or relied
upon as support for other evidence, shall be bound by all applicable
provisions of this paragraph (b) and the separate requirements of
paragraph (a) of this section, to the extent that portions of the
simulation model utilize or rely upon such studies. Information that
compares the simulation model output results to the actual phenomena
being modelled, using data other than those from which the model was
developed, shall be separately identified and submitted as evidence
supporting the test and validation of the simulation model. Separate
statements concerning the model limitations, including limiting model
design assumptions and range of data input utilized in model design,
shall be provided. Where test and validation of the entire simulation
model are not possible, test and validation information shall be
provided for disaggregate portions of the model. If disaggregate
testing and validation are not possible, separate statements to that
effect and statements regarding operational experts' review of model
validity shall be provided.
(2) Upon timely and otherwise proper request of a party, or sua
sponte, the Commission or the presiding officer may rule that matters
other than those listed in paragraphs (b)(1)(i) through (viii) of this
section are necessary to establish the foundation for reception of the
evidence concerned and must be furnished.
(3) When the requestor is other than the Commission or the
presiding officer, the cost of producing the material required in
paragraphs (b)(1)(iv), (vi), and (vii) of this section, shall be borne
by the requesting party unless otherwise ordered, for good cause shown
by the requestor. When the Commission or the presiding officer is the
requestor, it may assume or equitably allocate such costs for good
cause shown by the requester.
(4) If the recipient of a request for materials pursuant to this
paragraph (b) asserts that compliance with the request would conflict
with patent, copyright, trade secret or contract rights applicable to
the requested material, the recipient shall immediately notify the
requestor and the presiding officer. If valid, the presiding officer
shall devise means of accommodating such rights. Such means may include
protective orders, including access under protective conditions to the
computer facilities of the recipient of a request, making material
available for inspection, compensation, or other procedures, according
to the nature of the right affected by compliance with this paragraph
(b). If the presiding officer determines that compensation is necessary
to accommodate the affected right, the cost of compensation shall be
borne in the same manner that paragraph (b)(3) of this section
prescribes for bearing the costs referenced there. If such right cannot
be accommodated by reasonable compensation, or by protective orders or
other procedures, and, as a result, materials required by this
paragraph (b) cannot be provided, the presiding officer shall
determine, in the presiding officer's discretion, whether evidence that
relies upon the materials not provided shall be admissible or afforded
limited weight.
(c) Other studies and analyses. In the case of all studies and
analyses offered in evidence in hearing proceedings or relied upon as
support for other evidence, other than the kinds described in
paragraphs (a) and (b) of this section, there shall be a clear
statement of the study plan, all relevant assumptions and a description
of the techniques of data collection, estimation and/or testing. In
addition, there shall be a clear statement of the facts and judgments
upon which conclusions are based, together with an indication of the
alternative courses of action considered and the steps taken to ensure
the validity, accuracy, and reliability of the evidence. Tabulations of
input data, workbooks, and all other materials necessary to replicate
results shall be made available upon request at the offices of the
Commission.
(d) Expedition. The party who offers studies or analyses in
evidence shall expedite responses to requests made pursuant to this
section for data or other information. Responses shall be served on the
requesting party, and notice thereof filed with the Secretary in
accordance with the provisions of Sec. 3010.127 no later than 3 days
after a request is made under Sec. 3010.322(e)(2) or no later than 14
days after a request is made under Sec. 3010.322(e)(3).
Sec. 3010.324 In camera orders.
(a) Definition. Except as hereinafter provided, documents and
testimony made subject to in camera orders are not made a part of the
public record, but are kept confidential, and only authorized parties,
their counsel, authorized Commission personnel, and court personnel
concerned with judicial review shall have access thereto. The right of
the presiding officer, the Commission, and reviewing courts to disclose
in camera data to the extent necessary for the proper disposition of
the proceeding is specifically reserved.
(b) In camera treatment of documents and testimony. (1) Presiding
officers shall have authority, but only in those unusual and
exceptional circumstances when good cause is found on the record, to
order documents or oral testimony offered in evidence whether admitted
or rejected, to be placed in camera. The order shall specify the date
on which in camera treatment expires and shall include:
(i) A description of the documents and testimony;
(ii) A full statement of the reasons for granting in camera
treatment; and
(iii) A full statement of the reasons for the date on which in
camera treatment expires.
(2) Any party desiring, for the preparation and presentation of the
case, to disclose in camera documents or testimony to experts,
consultants, prospective witnesses, or witnesses, shall make
application to the presiding officer setting forth the justification
therefor. The presiding officer, in granting such application for good
cause found, shall enter an order protecting the rights of the affected
parties and preventing unnecessary disclosure of information. In camera
documents and the transcript of testimony subject to an in camera order
shall be segregated from the public record and filed in a sealed
envelope, bearing the title and docket number of the proceeding, the
notation ``In Camera Record under Sec. 3010.323,'' and the date on
which in camera treatment expires.
(c) Release of in camera information. In camera documents and
testimony shall constitute a part of the confidential records of the
Commission. However, the Commission, on its own motion or pursuant to a
request, may make in
[[Page 9639]]
camera documents and testimony available for inspection, copying, or
use by any other governmental agency. The Commission shall, in such
circumstances, give reasonable notice of the impending disclosure to
the affected party. However, such notice may be waived in extraordinary
circumstances for good cause.
(d) Briefing of in camera information. In the submittal of proposed
findings, briefs, or other papers, counsel for all parties shall make a
good faith attempt to refrain from disclosing the specific details of
in camera documents and testimony. This shall not preclude references
in such proposed findings, briefs, or other papers to such documents or
testimony including generalized statements based on their contents. To
the extent that counsel consider it necessary to include specific
details of in camera data in their presentations, such data shall be
incorporated in separate proposed findings, briefs, or other papers
marked ``confidential,'' which shall be placed in camera and become a
part of the in camera record.
Sec. 3010.325 Depositions.
(a) When permissible. The testimony of a witness may be taken by
deposition when authorized by the Commission or the presiding officer
on application of any party before the hearing is closed. An
authorization to take the deposition of a witness will be issued only
if:
(1) The person whose deposition is to be taken would be unavailable
at the hearing;
(2) The deposition is deemed necessary to perpetuate the testimony
of the witness; or
(3) The taking of the deposition is necessary to prevent undue and
excessive expense to a party and will not result in undue delay or an
undue burden to other parties.
(b) Application. An application for authorization to take testimony
by deposition shall be filed with the Commission or the presiding
officer and shall state:
(1) The name, identification, and post office address of the
witness;
(2) The subject matter of the testimony.
(3) The time and place of taking the deposition;
(4) The name, identification, and post office address of the
officer before whom the deposition is to be taken; and
(5) The reasons why the testimony of such witness should be taken
by deposition.
(c) Authorization. If the application so warrants, the Commission
or the presiding officer will issue and serve or cause to be served on
the parties within a reasonable time in advance of the time fixed for
taking testimony, an authorization for the taking of such testimony by
deposition. Such authorization shall name the witness, the time, place,
and officer before whom the deposition shall be taken, and shall
specify the number of copies of the deposition to be submitted to the
Commission. The authorization may include such terms and conditions as
the Commission or the presiding officer deems fair and reasonable.
(d) Qualifications of officer before whom taken. Such deposition
may be taken before a presiding officer or other authorized
representative of the Commission, or any officer, not being counsel or
attorney for any party or having an interest in the proceeding,
authorized to administer oaths by the laws of the United States or of
the place where the deposition is to be taken.
(e) Oath and reduction to writing. The officer before whom the
deposition is to be taken shall put the witness on oath or affirmation
and shall personally, or by someone acting under the officer's
direction and in the officer's presence, record the examination of the
witness. The examination shall be transcribed in the form specified in
Sec. 3010.124(a), signed by the witness, and certified in the usual
form by the officer. The original of the deposition, together with the
number of copies required by the authorization to be made by such
officer, shall be forwarded by the officer to the Secretary by personal
delivery or registered mail. Upon receipt, the Secretary shall hold the
original for use in the hearing upon request by any party and shall
make copies available for public inspection.
(f) Scope and conduct of examination. Unless otherwise directed in
the authorization, the witness may be questioned regarding any matter
which is relevant to the issues involved in the proceeding. Parties
shall have the right for cross-examination and objection. In lieu of
participation in the oral examination, parties may transmit written
interrogatories to the officer who shall propound them to the witness.
(g) Objections. The officer before whom the deposition is taken
shall not have the power to rule upon procedural matters or the
competency, materiality, or relevancy of questions. Procedural
objections or objections to questions of evidence shall be stated
briefly and recorded in the deposition without argument. Objections not
stated before the officer shall be deemed waived.
(h) When a part of the record. No portion of a deposition shall
constitute a part of the record in the proceeding unless received in
evidence by the presiding officer. If only a portion of the deposition
is offered in evidence by a party, any other party may require the
party to introduce all of it which is relevant to the part introduced,
and any party may offer in evidence any other portions.
(i) Fees. Witnesses whose depositions are taken and the officer
taking the same shall be entitled to the same fees as are paid for like
services in the District Courts of the United States to be paid
directly by the party or parties on whose application the deposition
was taken.
Sec. 3010.330 Briefs.
(a) When filed. At the close of the taking of testimony in any
proceeding, the Commission or the presiding officer shall fix the time
for the filing and service of briefs, giving due regard to the timely
issuance of the decision. In addition, subject to such consideration,
due regard shall be given to the nature of the proceeding, the
complexity and importance of the issues involved, and the magnitude of
the record. In cases subject to a limitation on the time available to
the Commission for decision, the Commission may direct each party to
file its brief simultaneously with the filing of briefs by other
parties. In cases where, because of the nature of the issues and the
record or the limited number of parties involved, the filing of initial
and reply briefs, or the filing of initial, answering, and reply
briefs, will not unduly delay the conclusion of the proceeding and will
aid in the proper disposition of the proceeding, the parties may be
directed to file more than one brief and at different times rather than
a single brief filed simultaneously with briefs filed by other parties.
The Commission or presiding officer may also order the filing of briefs
during the course of the proceeding.
(b) Contents. Each brief filed with the Commission shall be as
concise as possible, within any page limitation specified by the
Commission or the presiding officer, and shall include the following in
the order indicated:
(1) A subject index with page references, and a list of all cases
and authorities relied upon, arranged alphabetically, with references
to the pages where the citation appears;
(2) A concise statement of the case from the viewpoint of the
filing party;
(3) A clear, concise, and definitive statement of the position of
the filing party as to the matter before the Commission and the
decision to be issued;
(4) A discussion of the evidence, reasons, and authorities relied
upon
[[Page 9640]]
with exact references to the record and the authorities; and
(5) Proposed findings and conclusions with appropriate references
to the record or the prior discussion of the evidence and authorities
relied upon.
(c) Incorporation by references. Briefs before the Commission or a
presiding officer shall be completely self-contained and shall not
incorporate by reference any portion of any other brief, pleading, or
document.
(d) Excerpts from the record. Testimony and exhibits shall not be
quoted or included in briefs except for short excerpts pertinent to the
argument presented.
(e) Filing and service. Briefs shall be filed with the Commission
and served on all parties as required pursuant to subpart B of this
part.
Sec. 3010.331 Proposed findings and conclusions.
The Commission or the presiding officer may direct the filing of
proposed findings and conclusions with a brief statement of the
supporting reasons for each proposed finding and conclusion.
Sec. 3010.332 Oral argument before the presiding officer.
In any case in which the presiding officer is to issue an
intermediate decision, such officer may permit the presentation of oral
argument when, in the presiding officer's opinion, time permits, and
the nature of the proceedings, the complexity or importance of the
issues of fact or law involved, and the public interest warrants
hearing such argument. The presiding officer shall determine the time
and place for oral argument, and may specify the issue or issues on
which oral argument is to be presented, the order in which the
presentations shall be made, and the amount of time allowed each party.
A request for oral argument before the issuance of an intermediate
decision shall be made during the course of the hearing on the record.
Sec. 3010.333 Oral argument before the Commission.
(a) When ordered. In any proceeding before the Commission for
decision, the Commission, upon the request of any party or on its own
initiative, may order oral argument when, in the Commission's
discretion, time permits, and the nature of the proceedings, the
complexity or importance of the issues of fact or law involved, and
public interest warrants such argument.
(b) How requested. Any party in a proceeding before the Commission
for decision may request oral argument before the Commission by filing
a timely motion. In a proceeding before the Commission on exceptions to
an intermediate decision, such motion shall be filed no later than the
date for the filing of briefs on exceptions.
(c) Notice of oral argument. The Commission shall rule on requests
for oral argument, and if argument is allowed, the Commission shall
notify the parties of the time and place set for argument, the amount
of time allowed each party, and the issue or issues on which oral
argument is to be heard. Unless otherwise ordered by the Commission,
oral argument shall be limited to matters properly raised on the record
and in the briefs before the Commission.
(d) Use of documents at oral argument. Charts, graphs, maps,
tables, and other written material may be presented to the Commission
at oral argument only if limited to facts in the record of the case
being argued and if copies of such documents are filed with the
Secretary and served on all parties at least seven days in advance of
the argument. Enlargements of such charts, graphs, maps, and tables may
be used at the argument provided copies are filed and served as
required by this paragraph.
Sec. 3010.334 Commission decisions.
(a) At the conclusion of a proceeding on the record with the
opportunity for a hearing, the Commission shall issue a final decision
which either:
(1) Adopts an intermediate decision prepared by a presiding
officer; or
(2) Rules upon the matters that are before the Commission, or
provides explanation for why such rulings are not being provided.
(b) Commission decisions shall be based on the evidence entered
into the record, and consider the arguments filed on brief. Argument
provided in comments may further inform the Commission's decision, but
have no evidentiary standing and are not required to be addressed in
the final decision.
(c) An intermediate decision may be adopted by the Commission in
whole or in part. When an intermediate decision is adopted in part, the
Commission shall explain its decisions regarding both what is and is
not adopted.
(d) When exceptions, or objections to exceptions, to an
intermediate decision are filed pursuant to Sec. 3010.336 by any party
to the proceeding, the Commission shall consider and rule upon such
exceptions, or objections to exceptions in its final decision.
(e) Commission decisions shall be filed in the docket and served on
all parties. Commission decisions shall be part of the record of the
proceeding.
Sec. 3010.335 Intermediate decisions.
(a) An intermediate decision shall be issued by the presiding
officer which rules upon the matters that are before the Commission, or
provides explanation for why such rulings are not being provided, in a
proceeding on the record with the opportunity for a hearing when:
(1) The Commission is not sitting en banc; or
(2) The presiding office has been directed to issue an intermediate
decision by Commission notice or order.
(b) Intermediate decisions shall be based on the evidence entered
into the record, and shall consider the arguments filed on brief.
Arguments provided in comments may further inform the presiding
officer's decision, but are not required to be addressed in the
intermediate decision.
(c) Intermediate decisions shall be filed in the docket and served
on all parties. Intermediate decisions shall be part of the record of
the proceeding.
(d) Intermediate decisions are subject to review by the Commission
and subject to challenge by parties to the proceeding through the
filing of exceptions pursuant to Sec. 3010.336. After review and
consideration of the exceptions filed, intermediate decisions may be
adopted by the Commission, in whole or in part, as part of the final
decision in the proceeding.
(e)(1) The Commission may, at any time, direct the omission of an
intermediate decision and the certification of the record for the
Commission's consideration sitting en banc. Parties to a proceeding
may, by motion, request the omission of an intermediate decision and
the certification of the record for the Commission's consideration
sitting en banc. Motions shall specify:
(i) The concurrence of other parties; and
(ii) Whether opportunity for filing briefs or presenting oral
argument to the Commission is desired or waived.
(2) Failure of any party to object to such request shall constitute
a waiver of any objections. Motions shall be filed no later than the
deadline for the filing of briefs. In either instance, the decision to
omit an intermediate decision shall be based upon the consideration of
the novelty of the matters before the Commission, and the timely and
efficient operation of the docket.
Sec. 3010.336 Exceptions to intermediate decisions.
(a) Briefs on exceptions and opposing exceptions. Any party in a
proceeding
[[Page 9641]]
may file exceptions to any intermediate decision by first filing a
notice of intent to file a brief on exceptions with the Commission
within seven days after the date of issuance of the intermediate
decision or such other time as may be fixed by the Commission. The
brief on exceptions shall be filed with the Commission within 30 days
after the date of issuance of the intermediate decision or such other
time as may be fixed by the Commission. Any party to a proceeding may
file a response to briefs on exceptions within 20 days after the time
limited for the filing of briefs on exceptions or such other time as
may be fixed by the Commission. No further response will be entertained
unless the Commission, upon motion for good cause shown or on its own
initiative, so orders.
(b) Filing and contents. Briefs on exceptions and briefs opposing
exceptions shall be filed in accordance with Sec. 3010.330. In briefs
on exceptions, the discussion of evidence, reasons and authorities
shall be specifically directed to the findings, conclusions and
recommendations in the intermediate decision to which exception is
taken. Briefs on exceptions should not include a discussion of evidence
and authorities on matters and issues to which no exception to the
intermediate decision is taken. Briefs on exceptions and briefs
opposing exceptions need not contain a statement of the case to the
extent that it was correctly stated in either the intermediate decision
or the brief on exceptions of another party to which reference is made.
(c) Failure to except results in waiver. Any party who fails to
except or object to any part of an intermediate decision in its brief
on exceptions may not thereafter raise such exceptions or objections
which shall be deemed to have been waived.
PART 3011--NON-PUBLIC MATERIALS PROVIDED TO THE COMMISSION
0
44. The authority for newly redesignated part 3011 continues to read as
follows:
Authority: 39 U.S.C. 503, 504.
0
45. Amend newly redesignated Sec. 3011.101 by revising paragraph (a)
to read as follows:
Sec. 3011.101 Definitions.
(a) Non-public materials means any documents or things that are
provided to the Commission and identified as containing non-public
information. The Postal Service may claim that information that would
be exempt from disclosure pursuant to 39 U.S.C. 410(c), 504(g),
3652(f), or 3654(f) is non-public information. Any person other than
the Postal Service with a proprietary interest in the materials may
claim that information that would be protectable under Federal Rule of
Civil Procedure 26(c) is non-public information. Any person may claim
that information that is exempt from public disclosure under 5 U.S.C.
552(b) is non-public information. Non-public materials cease to be non-
public if the status has expired or has been terminated by the
Commission pursuant to this part. Except as provided by Sec. 3011.205,
non-public materials cease to be non-public if the submitter publicly
discloses the materials with the consent of each affected person with a
propriety interest in the materials (if applicable). The cessation of
non-public status applies to the particular document or thing and the
particular information contained therein (in whole or in part, as
applicable).
* * * * *
0
46. Amend newly redesignated Sec. 3011.102 by revising paragraph (a)
to read as follows:
Sec. 3011.102 Treatment of non-public materials.
(a) Except as described in part 3011 or part 3006 of this chapter,
the Commission will neither disclose nor grant access to any non-public
materials (and the non-public information contained therein).
* * * * *
0
47. Amend newly redesignated Sec. 3011.103 by revising paragraphs (a)
and (c) to read as follows:
Sec. 3011.103 Commission action to determine non-public treatment.
(a) Information requests as described in Sec. 3010.170 of this
chapter, preliminary notices, or interim orders may be issued to help
the Commission determine the non-public treatment, if any, to be
accorded to the materials claimed by any person to be non-public.
* * * * *
(c) Upon its own motion, the Commission may issue notice of its
preliminary determination concerning the appropriate degree of
protection, if any, to be accorded to materials claimed by any person
to be non-public. A response is due within seven calendar days of
issuance of the preliminary determination, unless the Commission
otherwise provides. No reply to a response shall be filed, unless the
Commission otherwise provides. Pending the Commission's resolution of
the preliminary determination, information designated as non-public
will be accorded non-public treatment. The Commission will enter an
order determining what non-public treatment, if any, will be accorded
to the materials after the response period described in this paragraph
has expired. The determination of the Commission shall follow the
applicable standard described in Sec. 3011.104.
0
48. Amend newly redesignated Sec. 3011.200 by revising paragraph (a)
to read as follows:
Sec. 3011.200 General requirements for submitting non-public
materials and seeking non-public treatment.
(a) Whenever providing non-public materials to the Commission, the
submitter shall concomitantly provide the following: An application for
non-public treatment that clearly identifies all non-public materials
and describes the circumstances causing them to be submitted to the
Commission in accordance with Sec. 3011.201, a redacted (public)
version of the non-public materials in accordance with Sec. 3011.202,
and an unredacted (sealed) version of the non-public materials in
accordance with Sec. 3011.203.
* * * * *
0
49. Amend newly redesignated Sec. 3011.203 by revising paragraph (b)
to read as follows:
Sec. 3011.203 Unredacted version of the non-public materials.
* * * * *
(b) The Filing Online method that results in posting a document
that is available to the public, which is accessible through the
Commission's website (https://www.prc.gov) described under part 3010,
subpart B of this chapter may not be used to submit the unredacted
version of non-public materials.
* * * * *
0
50. Amend newly redesignated Sec. 3011.205 by revising paragraphs (a)
through (c) introductory text and (c)(3) to read as follows:
Sec. 3011.205 Non-public materials inadvertently submitted publicly.
(a) Any filer or person with a proprietary interest that discovers
the inclusion of materials that could have been subject to a claim for
non-public treatment are contained within a public filing made in
accordance with subpart B to part 3010 of this chapter shall telephone
Dockets personnel immediately to request that the non-public materials
be removed from the publicly available materials. Upon receipt of that
telephone request, Dockets personnel will remove from the publicly
available materials those materials for which non-public
[[Page 9642]]
treatment are being requested until the end of the next business day in
order to provide the filer or person with a proprietary interest an
opportunity to file an application for non-public treatment and the
non-public materials in accordance with the requirements of this
subpart. If any filer makes repeated use of this rule, the Secretary
has discretion to impose additional requirements on this filer as
necessary to ensure secure filing of non-public materials.
(b) Any submitter or person with a proprietary interest that
discovers the inclusion of materials that could have been subject to a
claim for non-public treatment are contained within a publicly
available submission made to the Commission in circumstances other than
through a public filing made in accordance with subpart B to part 3010
of this chapter shall telephone the Commission personnel to whom the
submission was directed immediately to request that the non-public
materials be removed from the publicly available materials. Upon
receipt of that telephone request, the Commission personnel will remove
from the publicly available materials those materials for which non-
public treatment are being requested until the end of the next business
day in order to provide the submitter or person with a proprietary
interest an opportunity to submit an application for non-public
treatment and the non-public materials in accordance with the
requirements of this subpart. If any submitter makes repeated use of
this rule, the Secretary has discretion to impose additional
requirements on this submitter as necessary to ensure secure submission
of non-public materials.
(c) An application for non-public treatment made under paragraph
(a) or (b) of this section shall also clearly indicate if any special
relief is sought. Examples of special relief include a request that any
person not granted access to the materials under Sec. 3011.300 or
Sec. 3011.301 perform any or all of the following actions:
* * * * *
(3) Take reasonable steps to retrieve any materials, and the
information contained therein, that are claimed to be non-public and
were disclosed to any person not granted access to the materials under
Sec. 3011.300 or Sec. 3011.301 prior to the submission of application
for non-public treatment.
0
51. Amend newly redesignated Sec. 3011.300 by revising paragraphs (a)
and (c) to read as follows:
Sec. 3011.300 Eligibility for access to non-public materials.
(a) The following persons may access non-public materials without
an order issued pursuant to Sec. 3011.301(e):
* * * * *
(c) Any person not described in paragraph (a) or (b) of this
section may request access to non-public materials as described in
Sec. 3011.301, for the purpose of aiding participation in a pending
Commission proceeding (including compliance proceedings) or aiding the
initiation of a proceeding before the Commission.
0
52. Amend newly redesignated Sec. 3011.301 by revising paragraphs
(b)(4), (c), and (e) to read as follows:
Sec. 3011.301 Motion for access to non-public materials.
* * * * *
(b) * * *
(4) Specify if actual notice of the motion has been provided to
each person identified in the application pursuant to Sec.
3011.201(b)(2). If the motion states that actual notice has been
provided, the motion shall identify the individual(s) to whom actual
notice was provided, the date(s) and approximate time(s) of actual
notice, the method(s) of actual notice (by telephone conversation,
face-to-face conversation, or an exchange of telephone or email
messages), and whether the movant is authorized to represent that the
motion (in whole or in part) has been resolved or is contested by the
submitter or any other affected person;
* * * * *
(c) Response. If actual notice of the motion was provided in
advance of the filing to each person identified pursuant to Sec.
3011.201(b)(2) by telephone conversation, face-to-face conversation, or
an exchange of telephone or email messages, a response to the motion is
due within three business days of the filing of the motion, unless the
Commission otherwise provides. In all other circumstances, a response
to the motion is due within seven calendar days of filing the motion,
unless the Commission otherwise provides.
* * * * *
(e) Commission ruling. The Commission may enter an order at any
time after receiving a motion if the movant states that actual notice
has been given to each person identified pursuant to Sec.
3011.201(b)(2) and that the movant is authorized to represent that the
motion is uncontested. In all other circumstances, the Commission will
enter an order determining if access will be granted after the response
period described in paragraph (c) of this section has expired. If no
opposition to the motion has been filed by the submitter or any person
other than the submitter with a proprietary interest before the
expiration of the response period described in paragraph (c) of this
section, the Commission may issue an order granting access, subject to
the agreed protective conditions. In determining whether to grant
access to non-public materials, the Commission shall balance the
interests of the parties consistent with the analysis undertaken by a
Federal court when applying the protective conditions appearing in
Federal Rule of Civil Procedure 26(c). If access is granted, access
shall commence following the issuance of the appropriate order setting
forth all protective conditions.
0
53. Revise newly redesignated Sec. 3011.302 to read as follows:
Sec. 3011.302 Non-dissemination, use, and care of non-public
materials.
(a) No person who has been granted access to non-public materials
in accordance with Sec. 3011.300 or Sec. 3011.301 may disseminate the
materials or the information contained therein, in whole or in part, to
any person not allowed access pursuant to Sec. 3011.300 or Sec.
3011.301.
(b) Persons with access to non-public materials under Sec.
3011.300 or Sec. 3011.301 shall use non-public materials only for the
purposes for which the non-public materials are supplied.
(c) Persons with access to non-public materials under Sec.
3011.300 or Sec. 3011.301 shall protect the non-public materials from
any person not granted access under Sec. 3011.300 or Sec. 3011.301 by
using the same degree of care, but no less than a reasonable degree of
care, to prevent the unauthorized disclosure of these materials as
those persons, in the ordinary course of business, would be expected to
use to protect their own proprietary material or trade secrets and
other internal, confidential, commercially sensitive, and privileged
information.
0
54. Amend newly redesignated Sec. 3011.303 by revising paragraph (a)
introductory text to read as follows:
Sec. 3011.303 Sanctions for violating protective conditions.
(a) If a person who has been granted access to non-public materials
under Sec. 3011.301 violates the terms of the order granting access,
the Commission may impose sanctions on the person who violated the
order, the persons or entities on whose behalf the person was
[[Page 9643]]
acting, or both. The sanctions may include any or all of the following:
* * * * *
0
55. Amend newly redesignated Sec. 3011.304 by revising paragraphs
(a)(1) and (b) to read as follows:
Sec. 3011.304 Termination and amendment of access to non-public
materials.
(a) * * *
(1) Except as provided in paragraph (b) of this section, access to
non-public materials granted under Sec. 3011.301 terminates either
when the Commission issues the final order or report concluding the
proceeding(s) in which the participant who filed the motion seeking
access represented that the non-public materials would be used, or when
the person granted access withdraws or is otherwise no longer involved
in the proceeding(s), whichever occurs first. For purposes of this
paragraph, an order or report is not considered final until after the
possibility of judicial review expires (including the completion of any
Commission response to judicial review, if applicable).
* * * * *
(b) Amendment of access. Any person may file a motion seeking to
amend any protective conditions related to access of non-public
materials, including extending the timeframe for which access is
granted or expanding the persons to whom access is to be granted, in
accordance with Sec. 3011.301.
0
56. Amend newly redesignated Sec. 3011.305 by revising paragraph (a)
to read as follows:
Sec. 3011.305 Producing non-public materials in non-Commission
proceedings.
(a) If a court or other administrative agency issues a subpoena or
orders production of non-public materials that a person obtained under
protective conditions ordered by the Commission, the target of the
subpoena or order shall, within two days of receipt of the subpoena or
order, notify each person identified pursuant to Sec. 3011.201(b)(2)
of the pendency of the subpoena or order to allow time to object to
that production or to seek a protective order or other relief.
* * * * *
0
57. Revise the newly redesignated appendix A to subpart C of part 3011
to read as follows:
Appendix A to Subpart C of Part 3011--Template Forms Protective
Conditions Statement
______ (name of submitter of non-public materials) requests
confidential treatment of non-public materials identified as ____
(non-confidential description of non-public materials) (hereinafter
``these materials'') in Commission Docket No(s). ____ (designation
of docket(s) in which these materials were filed).
______ (name of participant filing motion) (hereinafter ``the
movant'') requests access to these materials related to ____
(designation of docket(s) or description of proposed proceeding(s)
in which these materials are to be used) (hereinafter ``this
matter'').
The movant has provided to each person seeking access to these
materials:
[cir] This Protective Conditions Statement;
[cir] the Certification to Comply with Protective Conditions;
[cir] the Certification of Compliance with Protective Conditions
and Termination of Access; and
[cir] the Commission's rules applicable to access to non-public
materials filed in Commission proceedings (subpart C of part 3011 of
the U.S. Code of Federal Regulations).
Each person (and any individual working on behalf of that
person) seeking access to these materials has executed a
Certification to Comply with Protective Conditions by signing in ink
or by typing/s/before his or her name in the signature block. The
movant attaches the Protective Conditions Statement and the executed
Certification(s) to Comply with Protective Conditions to the motion
for access filed with the Commission.
The movant and each person seeking access to these materials
agree to comply with the following protective conditions:
In accordance with 39 CFR 3011.303, the Commission may impose
sanctions on any person who violates these protective conditions,
the persons or entities on whose behalf the person was acting, or
both.
2. In accordance with 39 CFR 3011.300(b), no person involved in
competitive decision-making for any individual or entity that might
gain competitive advantage from using these materials shall be
granted access to these materials. Involved in competitive decision-
making includes consulting on marketing or advertising strategies,
pricing, product research and development, product design, or the
competitive structuring and composition of bids, offers or
proposals. It does not include rendering legal advice or performing
other services that are not directly in furtherance of activities in
competition with an individual or entity having a proprietary
interest in the protected material.
3. In accordance with 39 CFR 3011.302(a), a person granted
access to these materials may not disseminate these materials in
whole or in part to any person not allowed access pursuant to 39 CFR
3011.300(a) (Commission and court personnel) or 3011.301 (other
persons granted access by Commission order) except in compliance
with:
a. Specific Commission order,
b. Subpart B of 39 CFR 3011 (procedure for filing these
materials in Commission proceedings), or
c. 39 CFR 3011.305 (production of these materials in a court or
other administrative proceeding).
4. In accordance with 39 CFR 3011.302(b) and (c), all persons
granted access to these materials:
a. Must use these materials only related to this matter; and
b. must protect these materials from any person not authorized
to obtain access under 39 CFR 3011.300 or 3011.301 by using the same
degree of care, but no less than a reasonable degree of care, to
prevent the unauthorized disclosure of these materials as those
persons, in the ordinary course of business, would be expected to
use to protect their own proprietary material or trade secrets and
other internal, confidential, commercially sensitive, and privileged
information.
5. The duties of each person granted access to these materials
apply to all:
a. Disclosures or duplications of these materials in writing,
orally, electronically, or otherwise, by any means, format, or
medium;
b. Excerpts from, parts of, or the entirety of these materials;
c. Written materials that quote or contain these materials; and
d. Revised, amended, or supplemental versions of these
materials.
6. All copies of these materials will be clearly marked as
``Confidential'' and bear the name of the person granted access.
7. Immediately after access has terminated pursuant to 39 CFR
3011.304(a)(1), each person (and any individual working on behalf of
that person) who has obtained a copy of these materials must execute
the Certification of Compliance with Protective Conditions and
Termination of Access. In compliance with 39 CFR 3011.304(a)(2), the
movant will attach the executed Certification(s) of Compliance with
Protective Conditions and Termination of Access to the notice of
termination of access filed with the Commission.
8. Each person granted access to these materials consents to
these or such other conditions as the Commission may approve.
Respectfully submitted,
(signature of representative)
/s/--------------------------------------------------------------------
(print name of representative)
(address line 1 of representative)
(address line 2 of representative)
(telephone number of representative)
(e-mail address of representative)
(choose the appropriate response)
Attorney/Non[dash]Attorney Representative for
(name of the movant)
You may delete the instructional text to complete this form. This
form may be filed as an attachment to the motion for access to non-
public materials under 39 CFR 3011.301(b)(5).
Certification To Comply With Protective Conditions
______ (name of submitter of non-public materials) requests
confidential treatment of non-public materials identified as ____
(non-confidential description of non-public materials) (hereinafter
``these materials'') filed in Commission Docket No(s). ____
(designation of docket(s) in which these materials were filed).
[[Page 9644]]
______ (name of participant filing motion) requests that the
Commission grant me access to these materials to use related to ____
(designation of docket(s) or description of proposed proceeding(s)
in which these materials are to be used) (hereinafter ``this
matter'').
I certify that:
[cir] I have read and understand the Protective Conditions
Statement and this Certification to Comply with Protective
Conditions;
[cir] I am eligible to receive access to these materials because
I am not involved in competitive decision-making for any individual
or entity that might gain competitive advantage from using these
materials; and
[cir] I will comply with all protective conditions established
by the Commission.
(signature of individual receiving access)
/s/--------------------------------------------------------------------
(print name of individual receiving access)
(title of individual receiving access)
(employer of individual receiving access)
(name of the participant filing the motion)
(date)
You may delete the instructional text to complete this form. This
form may be filed as an attachment to the motion for access to non-
public materials under 39 CFR 3011.301(b)(6).
Certification of Compliance with Protective Conditions and Termination
of Access
______ (name of submitter of non-public materials) requests
confidential treatment of non-public materials identified as ____
(non-confidential description of non-public materials) (hereinafter
``these materials'') filed in Commission Docket No(s). ____
(designation of docket(s) in which these materials were filed).
The Commission granted the request by ____ (name of participant
filing notice) to grant me access to these materials to use related
to ____ (designation of docket(s) or description of proposed
proceeding(s) in which these materials are to be used) (hereinafter
``this matter'').
I certify that:
[cir] I accessed, maintained, and used these materials in
accordance with the protective conditions established by the
Commission;
[cir] Effective ____ (date), my access to these materials was
terminated; and
[cir] Effective ____ (date), I no longer have any of these
materials or any duplicates.
(signature of individual granted access)
/s/--------------------------------------------------------------------
(print name of individual granted access)
(title of individual granted access)
(employer of individual granted access)
(name of participant filing notice)
(date)
You may delete the instructional text to complete this form. This
form should be filed as an attachment to the notice of termination
of access to non-public materials under 39 CFR 3011.304(a)(2).
0
58. Amend newly redesignated Sec. 3011.400 by revising paragraphs (a)
through (c) and (f) to read as follows:
Sec. 3011.400 Motion for disclosure of non-public materials.
(a) Application of this section. This section applies to non-public
materials during the initial duration of non-public status, up to ten
years, and any non-public materials for which the Commission enters an
order extending the duration of that status under Sec. 3011.401(a).
(b) Motion for disclosure of non-public materials. Any person may
file a motion with the Commission requesting that non-public materials
be publicly disclosed. Any part of the motion revealing non-public
information shall be filed in accordance with subpart B of this part.
The motion shall justify why the non-public materials should be made
public and specifically address any pertinent rationale(s) provided in
the application for non-public treatment. The motion shall specify
whether actual notice of the motion has been provided to each person
identified in the application pursuant to Sec. 3011.201(b)(2). If the
motion states that actual notice has been provided, the motion shall
identify the individual(s) to whom actual notice was provided, the
date(s) and approximate time(s) of actual notice, the method(s) of
actual notice (by telephone conversation, face-to-face conversation, or
an exchange of telephone or email messages), and whether the movant is
authorized to represent that the motion (in whole or in part) has been
resolved or is contested by the submitter or any other affected person.
The motion shall be filed in the docket in which the materials were
filed or in the docket in which the materials will be used; in all
other circumstances, the motion shall be filed in the G docket for the
applicable fiscal year.
(c) Response. If actual notice of the motion was provided in
advance of the filing to each person identified pursuant to Sec.
3011.201(b)(2) by telephone conversation, face-to-face conversation, or
an exchange of telephone or email messages, a response to the motion is
due within three business days of the filing of the motion, unless the
Commission otherwise provides. In all other circumstances, a response
to the motion is due within seven calendar days of filing the motion,
unless the Commission otherwise provides.
* * * * *
(f) Commission ruling. The Commission may enter an order at any
time after receiving a motion if the movant states that actual notice
has been given to each person identified pursuant to Sec.
3011.201(b)(2) and that the movant is authorized to represent that the
motion is uncontested. In all other circumstances, the Commission will
enter an order determining what non-public treatment, if any, will be
accorded to the materials after the response period described in
paragraph (c) of this section has expired. The determination of the
Commission shall follow the applicable standard described in Sec.
3011.104.
0
59. Amend newly redesignated Sec. 3011.401 by revising paragraphs (c)
and (f) to read as follows:
Sec. 3011.401 Materials for which non-public treatment has expired.
* * * * *
(c) Response. A response to the request is due within seven
calendar days of the filing of the request, unless the Commission
otherwise provides. Any response opposing the request shall seek an
extension of non-public status by including an application for non-
public treatment compliant with Sec. 3007.201 of this chapter. This
extension application shall also include specific facts in support of
any assertion that commercial injury is likely to occur if the
information contained in the materials is publicly disclosed despite
the passage of ten years or the timeframe established by Commission
order.
* * * * *
(f) Ruling. The Commission may grant the request at any time after
the response period described in paragraph (c) of this section has
expired. The Commission may deny the request and enter an order
extending the duration of non-public status at any time after the reply
period described in paragraph (d) of this section has expired. The
determination of the Commission shall follow the applicable standard
described in Sec. 3011.104.
0
60. Revise the newly redesignated appendix A to subpart D of part 3011
to read as follows:
Appendix A to Subpart D of Part 3011--Template Forms
Before the POSTAL REGULATORY COMMISSION WASHINGTON, DC 20268-0001
(Caption)--------------------------------------------------------------
Docket No.-------------------------------------------------------------
-----------------------------------------------------------------------
REQUEST FOR MATERIALS FOR WHICH NON-PUBLIC TREATMENT HAS EXPIRED
____ , 20__ (date)
On ____ (date non-public materials were initially submitted),
non-public treatment was requested for the materials identified as
____ (non-confidential description of non-public materials)
(hereinafter ``these materials''). Because the non-public treatment
of these materials has
[[Page 9645]]
expired, I request that these materials be disclosed to the public.
Respectfully submitted,
(signature of representative)
/s/--------------------------------------------------------------------
(print name of representative)
(address line 1 of representative)
(address line 2 of representative)
(telephone number of representative)
(e-mail address of representative)
(choose the appropriate response)
Attorney/Non[dash]Attorney Representative for
(name of the requestor)
You may delete the instructional text to complete this form and
file a request under 39 CFR 3011.401(b).
PART 3012--EX PARTE COMMUNICATIONS
0
61. The authority for newly redesignated part 3012 continues to read as
follows:
Authority: 39 U.S.C. 404(d)(5); 503; 504; 3661(c); 3662.
0
62. Amend newly redesignated Sec. 3012.1 by revising paragraph (c) to
read as follows:
Sec. 3012.1 Applicability.
* * * * *
(c) The rules in this section are not applicable to international
mail (IM) proceedings undertaken pursuant to part 3025 of this chapter.
* * * * *
0
63. Amend newly redesignated Sec. 3012.2 by revising paragraph (b)(3)
to read as follows:
Sec. 3012.2 Definition of ex parte communications.
* * * * *
(b) * * *
(3) Communications during the course of off-the-record technical
conferences associated with a matter before the Commission, or the pre-
filing conference for nature of service cases required by Sec.
3020.111 of this chapter, where advance public notice of the event is
provided indicating the matter to be discussed, and the event is open
to all persons participating in the matter before the Commission;
* * * * *
0
64. Amend newly redesignated Sec. 3012.4 by revising paragraph (d)(2)
to read as follows:
Sec. 3012.4 Definitions of persons subject to ex parte communication
rules.
* * * * *
(d) * * *
(2) Commission personnel not participating in the decisional
process owing to the prohibitions of Sec. 3010.144 of this chapter
regarding no participation by investigative or prosecuting officers;
* * * * *
0
65. Amend newly redesignated Sec. 3012.7 by revising paragraphs (b)
and (c) to read as follows:
Sec. 3012.7 Penalty for violation of ex parte communication rules.
* * * * *
(b) Upon notice of a communication knowingly made or knowingly
caused to be made by a participant in violation of Sec. 3012.5(a), the
Commission or presiding officer may, to the extent consistent with the
interests of justice and the policy of the underlying statutes, require
the participant to show cause why the participant's claim or interest
in the proceeding should not be dismissed, denied, disregarded, or
otherwise adversely affected on account of such violation.
(c) The Commission may, to the extent consistent with the interests
of justice and the policy of the underlying statutes administered by
the Commission, consider a violation of Sec. 3012.5(a) sufficient
grounds for a decision adverse to a party who has knowingly committed
such violation or knowingly caused such violation to occur.
PART 3013--PROCEDURES FOR COMPELLING PRODUCTION OF INFORMATION BY
THE POSTAL SERVICE
0
66. The authority for newly redesignated part 3013 continues to read
as follows:
Authority: 39 U.S.C. 503; 504; 3651(c); 3652(d).
0
67. Amend newly redesignated Sec. 3013.1 by revising paragraph (b) to
read as follows:
Sec. 3013.1 Scope and applicability of other parts of this title.
* * * * *
(b) Subparts A, B, and D to part 3010 of this chapter apply unless
otherwise stated in this part or otherwise ordered by the Commission.
0
68. Amend newly redesignated Sec. 3013.11 by revising paragraphs
(d)(4) and (e) to read as follows:
Sec. 3013.11 General rule--subpoenas.
* * * * *
(d) * * *
(4) That a trade secret or other confidential research,
development, or commercial information not be revealed or be revealed
only in a designated way as provided in part 3011 of this chapter; and
* * * * *
(e) Subpoenas shall be served in the manner provided by Sec.
3013.14.
0
69. Amend newly redesignated Sec. 3013.12 by revising paragraphs (a)
and (d) to read as follows:
Sec. 3013.12 Subpoenas issued without receipt of a third-party
request.
(a) A subpoena duly authorized by a majority of the Commissioners
then holding office may be issued by the Chairman, a designated
Commissioner, or an administrative law judge under Sec. 3013.11
without a request having been made by a third party under Sec.
3013.13.
* * * * *
(d) Subpoenas issued under this section shall be issued subject to
the right of the Postal Service and other interested persons to file a
motion pursuant to Sec. 3010.160(a) of this chapter to quash the
subpoena, to limit the scope of the subpoena, or to condition the
subpoena as provided in Sec. 3013.11(d). Such motion shall include any
objections to the subpoena that are personal to the covered person
responsible for providing the information being sought. Motions
alleging undue burden or cost must state with particularity the basis
for such claims. Answers to the motion may be filed by any interested
person pursuant to Sec. 3010.160(b) of this chapter. Pending the
resolution of any such motion, the covered person shall secure and
maintain the requested information.
0
70. Amend newly redesignated Sec. 3013.13 by revising paragraphs (a)
introductory text, (a)(2) through (4), (b) introductory text, and
(b)(1) and (2) to read as follows:
Sec. 3013.13 Subpoenas issued in response to a third-party request.
(a) Procedure for requesting and issuing subpoenas when hearings
have been ordered. A participant in any proceeding in which a hearing
has been ordered by the Commission may request the issuance of a
subpoena to a covered person pursuant to Sec. 3013.11.
* * * * *
(2) Requests for subpoenas under this section shall be made by
written motion filed with the presiding officer in the manner provided
in Sec. 3010.160 of this chapter. The Postal Service shall transmit a
copy of the request to any covered person that it deems likely to be
affected by the request and shall provide the person requesting the
subpoena with the name, business address, and business phone number of
the persons to whom the request has been transmitted.
(3) Answers to the motion may be filed by the Postal Service, by
any
[[Page 9646]]
person to whom the Postal Service has transmitted the request, and by
any other participant. Answers raising objections, including
allegations of undue burden or cost, must state with particularity the
basis for such claims. Answers shall be filed as required by Sec.
3010.160(b) of this chapter.
(4) The presiding officer shall forward copies of the motion and
any responses to the Commission together with a recommendation of
whether or not the requested subpoena should be issued and, if so, the
scope and content thereof and conditions, if any, that should be placed
on the subpoena. Copies of the presiding officer's recommendation shall
be served in accordance with Sec. 3010.127 of this chapter.
* * * * *
(b) Procedure for requesting and issuing subpoenas when no hearings
have been ordered. Any person may request the issuance of a subpoena to
a covered person pursuant to Sec. 3013.11 to enforce an information
request issued by the Commission or a Commissioner even though no
hearings have been ordered by the Commission.
(1) A request for the issuance of a subpoena shall be made by
motion as provided by Sec. 3010.160 of this chapter. A copy of the
request shall be served upon the Postal Service as provided by Sec.
3010.127 of this chapter and by forwarding a copy to the General
Counsel of the Postal Service, or such other person authorized to
receive process by personal service, by Express Mail or Priority Mail,
or by First-Class Mail, Return Receipt requested. The Postal Service
shall transmit a copy of the request to any covered person that it
deems likely to be affected by the request and shall provide the person
requesting the subpoena with the name, business address and business
phone number of the persons to whom the request has been transmitted.
Proof of service of the request shall be filed with the Secretary by
the person requesting the subpoena. The Secretary shall issue a notice
of the filing of proof of service and the deadline for filing answers
to the request.
(2) Answers to the motion may be filed by the Postal Service, by
any person to whom the Postal Service has transmitted the request, and
by any other person. Answers raising objections, including allegations
of undue burden or cost, must state with particularity the basis for
such claims. Answers shall be filed as required by Sec. 3010.160(b) of
this chapter.
* * * * *
0
71. Amend newly redesignated Sec. 3013.14 by revising paragraphs
(a)(1), (2), and (4), (b)(1) introductory text, and (b)(2) introductory
text to read as follows:
Sec. 3013.14 Service of subpoenas.
(a) * * *
(1) Existing Postal Service officers and employees. In addition to
electronic service as provided by Sec. 3010.127(a) of this chapter,
subpoenas directed to existing Postal Service officers and employees
must be served by personal service upon the General Counsel of the
Postal Service or upon such other representative of the Postal Service
as is authorized to receive process. Upon receipt, the subpoena shall
be transmitted and delivered by the Postal Service to the existing
officers and employees responsible for providing the information being
sought by the subpoena. Subpoenas served upon the Postal Service and
transmitted to Postal Service officers and employees shall be
accompanied by a written notice of the return date of the subpoena.
(2) Existing Postal Service agents and contractors. In addition to
electronic service as provided by Sec. 3010.127(a) of this chapter,
subpoenas directed to existing Postal Service agents and contractors
must be served by personal service upon the General Counsel of the
Postal Service or upon such other representative of the Postal Service
as is authorized to receive process. Upon receipt, the subpoena shall
be transmitted and delivered by the Postal Service to existing agents
and contractors responsible for providing the information being sought
by the subpoena. Service upon such agents and contractors shall be
accompanied by a written notice of the return date of the subpoena.
* * * * *
(4) Service arrangements. Arrangements for service upon the Postal
Service under paragraph (a)(1) of this section or upon former Postal
Service officers, employees, agents, or contractors under paragraph
(a)(3) of this section shall be arranged either by the Commission or by
the third party who requested issuance of the subpoena.
(b) * * *
(1) Return of service. Proof of service under paragraph (a) of this
section must be filed with the Secretary within two business days
following service, unless a shorter or longer period is ordered by the
Commission, and must be accompanied by certifications of:
* * * * *
(2) Proof of transmission. The Postal Service shall within two
business days of transmission of a subpoena by the Postal Service to an
existing Postal Service officer, employee, agent, or contractor
pursuant to paragraph (a)(1) or (2) of this section, or such shorter or
longer period ordered by the Commission, file with the Secretary a
certification of:
* * * * *
0
72. Amend newly redesignated Sec. 3013.15 by revising paragraph (f)
to read as follows:
Sec. 3013.15 Duties in responding to a subpoena.
* * * * *
(f) Request for confidential treatment of information shall be made
in accordance with part 3011 of this chapter.
0
73. Revise newly redesignated appendix A to part 3013 to read as
follows:
Appendix A to Part 3013--Subpoena Form
BILLING CODE 7710-FW-P
[[Page 9647]]
[GRAPHIC] [TIFF OMITTED] TR19FE20.000
[[Page 9648]]
[GRAPHIC] [TIFF OMITTED] TR19FE20.001
[[Page 9649]]
[GRAPHIC] [TIFF OMITTED] TR19FE20.002
BILLING CODE 7710-FW-C
0
74. Add a new part 3020 to read as follows:
PART 3020--RULES APPLICABLE TO POSTAL SERVICE REQUESTS FOR CHANGES
IN THE NATURE OF POSTAL SERVICES
Sec.
3020.101 Applicability.
3020.102 Advisory opinion and special studies.
3020.103 Computation of time.
3020.104 Service by the Postal Service.
3020.105 Motions.
3020.106-3020.109 [Reserved]
3020.110 Procedural schedule.
3020.111 Pre-filing requirements.
3020.112 Filing of formal requests.
3020.113 Contents of formal requests.
3020.114 Filing of prepared direct evidence.
3020.115 Mandatory technical conference.
3020.116 Discovery--in general.
3020.117 Interrogatories.
3020.118 Production of documents.
3020.119 Admissions.
3020.120 Rebuttal testimony.
3020.121 Surrebuttal testimony.
3020.122 Hearings.
3020.123 Initial and reply briefs.
Appendix A to Part 3020--Pro Forma N-Case Procedural Schedule
Authority: 39 U.S.C. 404(d); 503; 504; 3661.
Sec. 3020.101 Applicability.
The rules in this part govern the procedure with regard to
proposals of the Postal Service pursuant to 39 U.S.C. 3661 requesting
from the Commission an advisory opinion on changes in the nature of
postal services that will generally affect service on a nationwide or
substantially nationwide basis. The Rules of General Applicability in
part 3010 of this chapter are also applicable to proceedings conducted
pursuant to this subpart except that Sec. Sec. 3010.160 through
3010.164 (Motions); Sec. 3010.310 (Discovery--general policy); Sec.
3010.311 (Interrogatories for purposes of discovery); Sec. 3010.312
(Requests for production of documents or things for the purpose of
discovery); Sec. 3010.321 (Hearings); Sec. 3010.325 (Depositions);
and Sec. 3010.330 (Briefs) of this chapter do not apply in proceedings
conducted under this part.
Sec. 3020.102 Advisory opinion and special studies.
(a) Issuance of opinion. In the absence of a determination of good
cause for extension, the Commission shall issue an advisory opinion in
proceedings conducted under this subpart not later than 90 days
following the filing of the
[[Page 9650]]
Postal Service's request for an advisory opinion.
(b) Special studies. Advisory opinions shall address the specific
changes proposed by the Postal Service in the nature of postal
services. If, in any proceeding, alternatives or related issues of
significant importance arise, the Commission may, in its discretion,
undertake an evaluation of such alternative or issues by means of
special studies, public inquiry proceedings, or other appropriate
means.
Sec. 3020.103 Computation of time.
In computing any period of time prescribed or allowed by this
subpart, the term day means a calendar day unless explicitly specified
otherwise. The last day of the period so computed is to be included
unless it is a Saturday, Sunday, or Federal holiday for the Commission,
in which event the period runs until the end of the next day which is
neither a Saturday, Sunday, nor Federal holiday.
Sec. 3020.104 Service by the Postal Service.
By filing its request electronically with the Commission, the
Postal Service is deemed to have effectively served copies of its
formal request and its prepared direct evidence upon those persons,
including the officer of the Commission, who participated in the pre-
filing conference held under Sec. 3020.111. The Postal Service shall
be required to serve hard copies of its formal request and prepared
direct evidence only upon those persons who have notified the Postal
Service, in writing, during the pre-filing conference(s), that they do
not have access to the Commission's website.
Sec. 3020.105 Motions.
(a) In general. (1) An application for an order or ruling not
otherwise specifically provided for in this subpart shall be made by
motion. A motion shall set forth with particularity the ruling or
relief sought, the grounds and basis therefor, and the statutory or
other authority relied upon, and shall be filed with the Secretary and
served pursuant to the provisions of subpart B to part 3010 of this
chapter. A motion to dismiss proceedings or any other motion that
involves a final determination of the proceeding, any motion under
Sec. 3020.121, and a motion that seeks to extend the deadline for
issuance of an advisory opinion shall be addressed to the Commission.
After a presiding officer is designated in a proceeding, all other
motions in that proceeding, except those filed under part 3011 of this
chapter, shall be addressed to the presiding officer.
(2) Within five days after a motion is filed, or such other period
as the Commission or presiding officer in any proceeding under this
subpart may establish, any participant to the proceeding may file and
serve an answer in support of or in opposition to the motion pursuant
to subpart B to part 3010 of this chapter. Such an answer shall state
with specificity the position of the participant with regard to the
ruling or relief requested in the motion and the grounds and basis and
statutory or other authority relied upon. Unless the Commission or
presiding officer otherwise provides, no reply to an answer or any
further responsive document shall be filed.
(b) Motions to be excused from answering discovery requests. (1) A
motion to be excused from answering discovery requests shall be filed
with the Commission within three days of the filing of the
interrogatory, request for production, or request for admission to
which the motion is directed. If a motion to be excused from answering
is made part of an interrogatory, request for production, or request
for admission, the part to which objection is made shall be clearly
identified. Claims of privilege shall identify the specific evidentiary
privilege asserted and state the reasons for its applicability. Claims
of undue burden shall state with particularity the effort that would be
required to answer or respond to the request, providing estimates of
costs and workhours required, to the extent possible.
(2) An answer to a motion to be excused from answering a discovery
request shall be filed within two days of the filing of the motion. The
text of the discovery request and any answer previously provided by the
Postal Service shall be included as an attachment to the answer.
(3) Unless the Commission or presiding officer grants the motion to
be excused from answering, the Postal Service shall answer the
interrogatory, production request, or request for admission. Answers
shall be filed in conformance with subpart B to part 3010 of this
chapter within three days of the date on which a motion to be excused
from answering is denied.
(4) The Commission or presiding officer may impose such terms and
conditions as are just and may, for good cause, issue a protective
order, including an order limiting or conditioning interrogatories,
requests for production, and requests for admission as justice requires
to protect the Postal Service from undue annoyance, embarrassment,
oppression, or expense.
(c) Motions to strike. Motions to strike are requests for
extraordinary relief and are not substitutes for briefs or rebuttal
evidence in a proceeding. A motion to strike testimony or exhibit
materials must be submitted in writing at least three days before the
scheduled appearance of a witness, unless good cause is shown.
Responses to motions to strike are due within two days.
(d) Motions for leave to file surrebuttal testimony. Motions for
leave to file surrebuttal testimony submitted pursuant to Sec.
3020.121 and any answers thereto must be filed on or before the dates
provided in the procedural schedule established by the Commission.
Sec. Sec. 3020.106-3020.109 [Reserved]
Sec. 3020.110 Procedural schedule.
(a) Notice. Subject to paragraph (b) of this section, the
Commission shall include in the notice of proceeding issued under Sec.
3010.151 of this chapter a procedural schedule based upon the pro forma
schedule set forth in appendix A of this part. The procedural schedule
shall include:
(1) A deadline for notices of interventions;
(2) The date(s) for the mandatory technical conference between the
Postal Service, Commission staff, and interested parties;
(3) The deadline for discovery on the Postal Service's direct case;
(4) The deadline for responses to participant in discovery on the
Postal Service's case;
(5) The deadline for participants to confirm their intent to file a
rebuttal case;
(6) The date for filing participant rebuttal testimony, if any;
(7) The dates for filing motions for leave to file surrebuttal
testimony and answers thereto;
(8) The date for filing surrebuttal, if any;
(9) The date(s) for hearings on the Postal Service's direct case,
rebuttal testimony, and surrebuttal testimony, if any;
(10) The date for filing initial briefs;
(11) The date for filing reply briefs; and
(12) A deadline for issuance of an advisory opinion which is 90
days from the date of filing.
(b) Changes for good cause. These dates are subject to change for
good cause only.
(c) Incomplete request. If at any time the Commission determines
that the Postal Service's request is incomplete or that changes made
subsequent to its filing significantly modify the request,
[[Page 9651]]
the Commission may extend the deadlines established or take any other
action as justice may require.
Sec. 3020.111 Pre-filing requirements.
(a) Pre-filing conference required. Prior to the Postal Service
filing a request that the Commission issue an advisory opinion on a
proposed change in the nature of postal services subject to the
procedures established in this subpart, the Postal Service shall
conduct one or more pre-filing conference(s) with interested persons in
the proceeding and shall make a good faith effort to address the
concerns of such persons.
(b) Purpose. The purpose of a pre-filing conference is to expedite
consideration of the Postal Service's request for the issuance of
advisory opinions by informing interested persons of the Postal
Service's proposal; by providing an opportunity for interested persons
to give feedback to the Postal Service that can be used by the Postal
Service to modify or refine its proposal before it is filed at the
Commission; and by identifying relevant issues and information needed
to address those issues during proceedings at the Commission.
(c) Rationale for the proposal. The Postal Service shall make
available at the pre-filing conference a representative capable of
discussing the policy rationale behind the Postal Service's proposal
with interested persons.
(d) Notice. The Postal Service shall file with the Commission a
notice of its intent to conduct any pre-filing conference(s) at least
ten days before the first scheduled conference. The notice filed by the
Postal Service shall include a schedule of proposed date(s) and
location(s) for the conference(s). Upon receipt of such notice, the
Commission shall issue a notice of pre-filing conference(s), which
shall be published in the Federal Register, and appoint a Public
Representative.
(e) Nature of conferences. Discussions during the pre-filing
conference(s) shall be informal and off the record. No formal record
will be created during a pre-filing conference.
(f) Noncompliance. If the Postal Service's noncompliance with the
requirements of the pre-filing conference under Sec. 3020.113(b)(4) is
established by a participant, the Commission may, in its discretion,
consider an extension of, or modification to, the procedural schedule.
(g) Informal meetings. Interested persons may meet outside the
context of a pre-filing conference, among themselves or with the Postal
Service, individually or in groups, to discuss the proposed changes in
the nature of postal services.
Sec. 3020.112 Filing of formal requests.
Whenever the Postal Service determines to request that the
Commission issue an advisory opinion on a proposed change in the nature
of postal services subject to this subpart, the Postal Service shall
file with the Commission a formal request for such an opinion in
accordance with the requirements of subpart B to part 3010 of this
chapter and Sec. 3020.113. The request shall be filed not less than 90
days before the proposed effective date of the change in the nature of
postal services involved. Within five days after the Postal Service has
filed a formal request for an advisory opinion in accordance with this
section, the Secretary shall lodge a notice thereof with the director
of the Office of the Federal Register for publication in the Federal
Register.
Sec. 3020.113 Contents of formal requests.
(a) General requirements. A formal request filed under this subpart
shall include such information and data and such statements of reasons
and basis as are necessary and appropriate to fully inform the
Commission and interested persons of the nature, scope, significance,
and impact of the proposed change in the nature of postal services and
to show that the change in the nature of postal services is in
accordance with and conforms to the policies established under title
39, United States Code.
(b) Specific information. A formal request shall include:
(1) A detailed statement of the present nature of the postal
services proposed to be changed and the change proposed;
(2) The proposed effective date for the proposed change in the
nature of postal services;
(3) A full and complete statement of the reasons and basis for the
Postal Service's determination that the proposed change in the nature
of postal services is in accordance with and conforms to the policies
of title 39, United States Code;
(4) A statement that the Postal Service has completed the pre-
filing conference(s) required by Sec. 3020.111, including the time and
place of each conference and a certification that the Postal Service
has made a good faith effort to address concerns of interested persons
about the Postal Service's proposal raised at the pre-filing
conference(s);
(5) The prepared direct evidence required by Sec. 3020.114;
(6) The name of an institutional witness capable of providing
information relevant to the Postal Service's proposal that is not
provided by other Postal Service witnesses; and
(7) Confirmation that Postal Service witnesses, including its
institutional witness, will be available for the mandatory technical
conference provided for in Sec. 3020.115.
(c) Additional information. The Commission may request additional
information from the Postal Service concerning a formal request.
(d) Reliance on prepared direct evidence. The Postal Service may
incorporate detailed data, information, and statements of reason or
basis contained in prepared direct evidence submitted under paragraph
(b)(5) of this section into its formal request by reference to specific
portions of the prepared direct evidence.
Sec. 3020.114 Filing of prepared direct evidence.
As part of a formal request for an advisory opinion under this
subpart, the Postal Service shall file all of the prepared direct
evidence upon which it proposes to rely in the proceeding on the record
before the Commission to establish that the proposed change in the
nature of postal services is in accordance with and conforms to the
policies of title 39, United States Code. Such prepared direct evidence
shall be in the form of prepared written testimony and documentary
exhibits which shall be filed in accordance with Sec. Sec. 3010.322
and 3010.323 of this chapter.
Sec. 3020.115 Mandatory technical conference.
(a) Date. A date for a mandatory technical conference shall be
included in the procedural schedule required by Sec. 3020.110. The
date for this technical conference shall be set based upon the pro
forma schedule set forth in appendix A to this part. The conference
shall be held at the offices of the Commission.
(b) Witnesses. The Postal Service shall make available at the
technical conference each witness whose prepared direct testimony was
filed pursuant to Sec. 3020.114. If the Postal Service seeks for any
witness to be excused on the basis that the witness's testimony neither
presents nor is based upon technical information, it shall make such a
motion concurrent with its request.
(c) Purpose. The purpose of the technical conference is to provide
an
[[Page 9652]]
informal, off-the-record opportunity for participants, the officer of
the Commission representing the interests of the general public, and
Commission staff to clarify technical issues and to identify and
request information relevant to an evaluation of the nature of changes
to postal services proposed by the Postal Service. The technical
conference is not part of the formal record in the proceeding.
(d) Relation to discovery process. Information obtained during the
mandatory technical conference may be used to discover additional
relevant information by means of the formal discovery mechanisms
provided for in Sec. Sec. 3020.116 through 3020.119.
(e) Record. Information obtained during, or as a result of, the
mandatory technical conference is not part of the decisional record
unless admitted under the standards of Sec. 3010.322(a) of this
chapter.
Sec. 3020.116 Discovery--in general.
(a) Purpose. The rules in this subpart allow discovery that is
reasonably calculated to lead to admissible evidence during a
proceeding. The notice and scheduling order issued pursuant to Sec.
3020.110 shall provide that discovery will be scheduled to end at least
three days prior to the commencement of hearings.
(b) Informal discovery. The discovery procedures in this section
and Sec. Sec. 3020.117 through 3020.119 are not exclusive.
Participants are encouraged to engage in informal discovery whenever
possible to clarify exhibits and testimony. The results of these
efforts may be introduced into the record by stipulation, or by other
appropriate means. In the interest of reducing motion practice,
participants also are expected to use informal means to clarify
questions and to identify portions of discovery requests considered
overbroad or burdensome.
(c) Failure to obey orders or rulings. If a participant fails to
obey an order of the Commission or ruling of presiding officer to
provide or permit discovery pursuant to this section or Sec. Sec.
3020.117 through 3020.119, the Commission or the presiding officer may
issue orders or rulings in regard to the failure as are just. These
orders or rulings may, among other things:
(1) Direct that certain designated facts are established for the
purposes of the proceeding;
(2) Prohibit a participant from introducing certain designated
matters in evidence;
(3) Strike certain evidence, requests, pleadings, or parts thereof;
or
(4) Such other relief as the Commission deems appropriate.
Sec. 3020.117 Interrogatories.
(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 in a proceeding may
propound to any other participant no more than a total of 25 written,
sequentially numbered interrogatories, by witness, requesting non-
privileged information relevant to the subject matter of the
proceeding. An interrogatory with subparts that are logically or
factually subsumed within and necessarily related to the primary
question will be counted as one interrogatory. The respondent shall
answer each interrogatory and furnish such information as is available.
The participant propounding the interrogatories shall file them with
the Commission in conformance with part 3010, subpart B, of this
chapter. Follow-up interrogatories that clarify or elaborate on the
answer to an earlier discovery request may be filed after the period
for intervenor discovery on the Postal Service case ends, if the
interrogatories are filed within seven days of receipt of the answer to
the previous interrogatory. In extraordinary circumstances, follow-up
interrogatories may be filed not less than six days prior to the filing
date for the participant's rebuttal or surrebuttal testimony.
(b) Answers. (1) Answers to interrogatories shall be prepared so
that they can be incorporated into the record as written cross-
examination. Each answer shall begin on a separate page, identify the
individual responding and the relevant testimony number, if any, the
participant who propounded the interrogatory, and the number and text
of the question.
(2) Each interrogatory shall be answered separately and fully in
writing by the individual responsible for the answer, unless it is
objected to, in which event the reasons for objection shall be stated
in a motion to be excused from answering in the manner prescribed by
paragraph (c) of this section.
(3) 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.
(4) Answers filed by a respondent shall be filed in conformance
with subpart B to part 3010 of this chapter within seven days of the
filing of the interrogatories or within such other period as may be
fixed by the Commission or presiding officer. Any other period fixed by
the Commission or presiding officer shall end before the conclusion of
the hearing.
(c) Motion to be excused from answering. A respondent may, in lieu
of answering an interrogatory, file a motion pursuant to Sec.
3020.105(b) to be excused from answering.
(d) Supplemental answers. A respondent has a duty to timely amend a
prior answer if it obtains information upon the basis of which it knows
that the answer was incorrect when made or is no longer true. A
respondent shall serve supplemental answers to update or to correct
responses whenever necessary, up until the date the answer could have
been accepted into evidence as written cross-examination. A respondent
shall indicate whether the answer merely supplements the previous
answer to make it current or whether it is a complete replacement for
the previous answer.
Sec. 3020.118 Production of documents.
(a) Service and contents. (1) 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 a request to produce and permit the participant
making the request, or someone acting on behalf of the participant, to
inspect and copy any designated documents or things that constitute or
contain matters, not privileged, that are relevant to the subject
matter involved in the proceeding and that are in the custody or
control of the respondent.
(2) 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 items shall file its request with the
Commission in conformance with part 3010, subpart B, of this chapter.
(b) Answers. (1) The respondent shall file an answer to a request
under paragraph (a) of this section with the Commission in conformance
with subpart B to part 3010 of this chapter within seven days after the
request is filed, or within such other period as may be fixed by the
Commission or presiding officer. The answer shall state, with respect
to each item or category, whether inspection will be permitted as
requested.
(2) If the respondent objects to an item or category, it shall
state the reasons for objection in a motion to be excused
[[Page 9653]]
from answering as prescribed by paragraph (c) of this section.
(c) Motions to be excused from answering. A respondent may, in lieu
of answering a request for production, file a motion pursuant to Sec.
3020.105(b) to be excused from answering.
Sec. 3020.119 Admissions.
(a) Service and content. In the interest of expedition, any
participant may serve upon any other participant a written request for
the admission of any relevant, unprivileged facts, including the
genuineness of any documents or exhibits to be presented in the
hearing. The admission shall be for purposes of the pending proceeding
only. The participant requesting the admission shall file its request
with the Commission in conformance with subpart B to part 3010 of this
chapter.
(b) Answers. (1) A matter for which admission is requested shall be
separately set forth in the request and is deemed admitted unless,
within seven days after the request is filed, or within such other
period as may be established by the Commission or presiding officer,
the respondent files a written answer or motion to be excused from
answering pursuant to paragraph (c) of this section. Answers to
requests for admission shall be filed with the Commission in
conformance with subpart B to part 3010 of this chapter.
(2) If the answer filed by the respondent does not admit a matter
asserted in the participant's request, it must either specifically deny
the matter or explain in detail why it cannot truthfully admit or deny
the asserted matter. When good faith requires, the respondent must
admit a portion of the asserted matter and either deny or qualify the
remaining portion of such asserted matter. Lack of knowledge for
failing to admit or deny can be invoked only after reasonable inquiry
if the information already possessed or reasonably obtainable is
insufficient to enable an admission or denial.
(3) Grounds for objection to requests for admission must be stated.
Objections cannot be based solely upon the ground that the request
presents a genuine issue for trial.
(c) Motion to be excused from answering. A respondent may, in lieu
of answering a request for admission, file a motion pursuant to Sec.
3020.105(b) to be excused from answering.
Sec. 3020.120 Rebuttal testimony.
(a) Timing. Any participant may file rebuttal testimony on or
before the date established for that purpose by the procedural schedule
issued by the Commission pursuant to Sec. 3020.110. Hearing on
rebuttal testimony shall proceed as set forth in the procedural
schedule.
(b) Limitations. The scope of rebuttal testimony shall be limited
to material issues relevant to the specific proposal made by the Postal
Service. Rebuttal testimony shall not propose, or seek to address,
alternatives to the Postal Service's proposal.
(c) Intent to file rebuttal testimony. If a participant wishes to
file rebuttal testimony, it must file a document confirming its intent
to file rebuttal testimony with the Commission by the date provided in
the procedural schedule.
(d) Adjustment of dates. If no participant files a confirmation of
intent to file rebuttal testimony on or before the date established by
the procedural schedule issued by the Commission pursuant to Sec.
3020.110, the Commission may adjust other dates in the procedural
schedule as it deems to be necessary and appropriate.
Sec. 3020.121 Surrebuttal testimony.
(a) Scope. Surrebuttal testimony shall be limited to material
issues relevant to the Postal Service's proposal and to the rebuttal
testimony which the surrebuttal testimony seeks to address. Testimony
that exceeds the scope of the Postal Service's proposal or rebuttal
testimony shall not be permitted.
(b) Motion for leave to file surrebuttal. A participant who wishes
to file surrebuttal testimony must obtain prior approval by filing with
the Commission a motion for leave to file surrebuttal pursuant to Sec.
3020.105(d) on or before the date provided in the procedural schedule
established by the Commission. The motion must summarize the
surrebuttal testimony the participant wishes to file and must identify
and explain exceptional circumstances that require the filing of such
testimony. The moving participant bears the burden of demonstrating
exceptional circumstances that warrant a grant of the motion. Answers
to such motions may be filed as provided in Sec. 3020.105(d).
(c) Deadline for filing surrebuttal authorized by the Commission.
In the event the Commission grants the motion for leave to file
surrebuttal testimony, the moving participant must file its proposed
surrebuttal testimony by the date provided in the procedural schedule
established pursuant to Sec. 3020.110.
(d) Adjustment of procedural dates. If no participant files a
motion for leave to file surrebuttal testimony, or if the Commission
denies all such motions as may be filed, the remaining dates in the
procedural schedule may be adjusted by the Commission as it deems to be
necessary and appropriate.
Sec. 3020.122 Hearings.
(a) Initiation. Hearings for the purpose of taking evidence shall
be initiated by the issuance of a notice and scheduling order pursuant
to Sec. 3020.110.
(b) Presiding officer. All hearings shall be held before the
Commission sitting en banc with a duly designated presiding officer.
(c) Entering of appearances. The Commission or the presiding
officer before whom the hearing is held will cause to be entered on the
record all appearances together with a notation showing on whose behalf
each such appearance has been made.
(d) Order of procedure. In requests for advisory opinions before
the Commission, the Postal Service shall be the first participant to
present its case. Unless otherwise ordered by the Commission, the
presiding officer shall direct the order of presentation of all other
participants and issue such other procedural orders as may be necessary
to assure the orderly and expeditious conclusion of the hearing.
(e) Presentation of the evidence--(1) Presentations by
participants. Each participant shall have the right in public hearings
to present evidence relevant to the Postal Service's proposal, cross-
examine (limited to testimony adverse to the participant conducting the
cross-examination), object, move, and argue. The participant's
presentation shall be in writing and may be accompanied by a trial
brief or legal memoranda. (Legal memoranda on matters at issue will be
welcome at any stage of the proceeding.) When objections to the
admission or exclusion of evidence before the Commission or the
presiding officer are made, the grounds relied upon shall be stated.
Formal exceptions to rulings are unnecessary.
(2) Written cross-examination. Written cross-examination will be
utilized as a substitute for oral cross-examination whenever possible,
particularly to introduce factual or statistical evidence. Designations
of written cross-examination shall be served in accordance with part
3010, subpart B, of this chapter no later than three days before the
scheduled appearance of a witness. Designations shall identify every
item to be offered as evidence, listing the participant who initially
posed the discovery request, the witness and/or party to whom the
question was addressed (if different from the witness answering), the
number of the request and, if more than one answer is provided, the
dates of all
[[Page 9654]]
answers to be included in the record. (For example, ``PR-T1-17 to USPS
witness Jones, answered by USPS witness Smith (March 1, 1997) as
updated (March 21, 1997)''). When a participant designates written
cross-examination, two hard copies of the documents (unfastened,
single-spaced, not hole-punched) are to be included and shall
simultaneously be submitted to the Secretary of the Commission. The
Secretary of the Commission shall prepare for the record a packet
containing all materials designated for written cross-examination in a
format that facilitates review by the witness and counsel. The witness
will verify the answers and materials in the packet, and they will be
entered into the transcript by the presiding officer. Counsel may
object to written cross-examination at that time, and any designated
answers or materials ruled objectionable will not be admitted into the
record.
(3) Oral cross-examination. Oral cross-examination will be
permitted for clarifying written cross-examination and for testing
assumptions, conclusions or other opinion evidence. Notices of intent
to conduct oral cross-examination shall be filed three or more days
before the announced appearance of the witness and shall include
specific references to the subject matter to be examined and page
references to the relevant direct testimony and exhibits. A participant
intending to use complex numerical hypotheticals, or to question using
intricate or extensive cross-references, shall provide adequately
documented cross-examination exhibits for the record. Copies of these
exhibits shall be filed at least two days (including one working day)
before the scheduled appearance of the witness. They may be filed
online or delivered in hardcopy form to counsel for the witness, at the
discretion of the participant. If a participant has obtained permission
to receive service of documents in hardcopy form, hardcopy notices of
intent to conduct oral cross-examination of witnesses for that
participant shall be delivered to counsel for that participant and
served three or more working days before the announced appearance of
the witness. Cross-examination exhibits shall be delivered to counsel
for the witness at least two days (including one working day) before
the scheduled appearance of the witness.
(f) Limitations on presentation of the evidence. The taking of
evidence shall proceed with all reasonable diligence and dispatch, and
to that end, the Commission or the presiding officer may limit
appropriately:
(1) The number of witnesses to be heard upon any issue;
(2) The examination by any participant to specific issues; and
(3) The cross-examination of a witness to that required for a full
and true disclosure of the facts necessary for exploration of the
Postal Service's proposal, disposition of the proceeding, and the
avoidance of irrelevant, immaterial, or unduly repetitious testimony.
(g) Motions during hearing. Except as provided in Sec.
3020.105(a), after a hearing has commenced in a proceeding, a request
may be made by motion to the presiding officer for any procedural
ruling or relief desired. Such motions shall set forth the ruling or
relief sought, and state the grounds therefore and statutory or other
supporting authority. Motions made during hearings may be stated orally
upon the record, except that the presiding officer may require that
such motions be reduced to writing and filed separately. Any
participant shall have the opportunity to answer or object to such
motions at the time and in the manner directed by the presiding
officer.
(h) Rulings on motions. The presiding officer is authorized to rule
upon any motion not reserved for decision by the Commission in Sec.
3020.105(a). This section shall not preclude a presiding officer from
referring any motion made in hearing to the Commission for ultimate
determination.
(i) Transcript corrections. Corrections to the transcript of a
hearing shall not be requested except to correct a material substantive
error in the transcription made at the hearing.
(j) Field hearings. Field hearings will not be held except upon a
showing by any participant and determination by the Commission that
there is exceptional need or utility for such a hearing which cannot be
accomplished by alternative means.
Sec. 3020.123 Initial and reply briefs.
(a) When filed. At the close of the taking of testimony in any
proceeding, participants may file initial and reply briefs. The dates
for filing initial and reply briefs shall be established in the
procedural schedule issued pursuant to Sec. 3020.110. Such dates may
be modified by subsequent order issued by the Commission or the
presiding officer.
(b) Contents. Each brief filed with the Commission shall be as
concise as possible and shall include the following in the order
indicated:
(1) A subject index with page references, and a list of all cases
and authorities relied upon, arranged alphabetically, with references
to the pages where the citation appears;
(2) A concise statement of the case from the viewpoint of the
filing participant;
(3) A clear, concise, and definitive statement of the position of
the filing participant as to the Postal Service request;
(4) A discussion of the evidence, reasons, and authorities relied
upon with precise references to the record and the authorities; and
(5) Proposed findings and conclusions with appropriate references
to the record or the prior discussion of the evidence and authorities
relied upon.
(c) Length. Initial briefs filed by all participants other than the
Postal Service shall not exceed 14,000 words. Initial briefs filed by
the Postal Service shall not exceed 21,000 words. Reply briefs filed by
all participants other than the Postal Service shall not exceed 7,000
words. Reply briefs filed by the Postal Service shall not exceed 10,500
words. All participants shall attest to the number of words contained
in their brief. Tables of cases, tables of citations, and appendices
shall not be considered as part of the word count.
(d) Include by reference. Briefs before the Commission or a
presiding officer shall be completely self-contained and shall not
incorporate by reference any portion of any other brief, pleading, or
document.
(e) Excerpts from the record. Testimony and exhibits shall not be
quoted or included in briefs except for short excerpts pertinent to the
argument presented.
(f) Filing and service. Briefs shall be filed in the form and
manner and served as required by subpart B to part 3010 of this
chapter.
(g) Statements of Position. As an alternative to filing a formal
brief, a participant may file a Statement of Position. To the extent
practicable, the contents of each Statement of Position should include
a clear, concise, and definitive statement of the position of the
filing participant as to the Postal Service request, as well as any
points or factors in the existing record that support the participant's
position. Statements of Position shall be limited to the existing
record and shall not include any new evidentiary material.
Appendix A to Part 3020--Pro Forma N-Case Procedural Schedule
[[Page 9655]]
------------------------------------------------------------------------
Line Action Day number
------------------------------------------------------------------------
1................. Pre-Filing Consultations \1\.. n/a.
2................. Commission Order \2\.......... n/a.
3................. Filing of Postal Service 0.
Request.
4................. Commission Notice and Order 1-3.
\3\.
5................. Technical Conference.......... 10.
6................. Participant Discovery on 28.
Postal Service Case Ends.
7................. Responses to Participant 35.
Discovery on Postal Service
Case.
8................. Participants Confirm Intent to 37.\4\
File a Rebuttal Case.
9................. Filing of Rebuttal Cases (if 42.
submitted).
10................ Deadline for Motions to Leave 44.\5\
to File Surrebuttal.
11................ Deadline for Answers to 46.
Motions for Surrebuttal.
12................ Filing of Surrebuttal Cases 49.\6\
(if authorized).
13................ Hearings: ....................
Hearings (with no Rebuttal 42-44.
Cases).
Hearings (with Rebuttal 49-51.
Cases, but no requests for
leave to file Surrebuttal
Cases).
Hearings (with Rebuttal 54-56.
Cases and requests for
leave to file Surrebuttal
Cases).
14................ Initial Briefs................ (7 days after
conclusion of
hearings).
15................ Reply Briefs.................. (7 days after filing
of Initial Briefs).
16............... Target Issuance Date of 90.
Advisory Opinion.
------------------------------------------------------------------------
\1\ The Postal Service would initiate pre-filing consultations and would
file a notice with the Commission of such consultations prior to their
commencement.
\2\ This order would appoint a Public Representative.
\3\ This notice and order would announce the Postal Service request, set
a deadline for interventions, set a date for a technical conference,
and establish a procedural schedule.
\4\ If no participant elects to file a rebuttal case, hearings begin on
Day 42.
\5\ If no surrebuttal cases are requested, hearings begin on Day 49.
\6\ If one or more surrebuttal cases are requested (whether or not
authorized by the Commission), hearings begin on Day 54.
PART 3021--RULES FOR APPEALS OF POSTAL SERVICE DETERMINATIONS TO
CLOSE OR CONSOLIDATE POST OFFICES
0
75. The authority for newly redesignated part 3021 continues to read
as follows:
Authority: 39 U.S.C. 404(d).
0
76. Amend newly redesignated Sec. 3021.2 by revising paragraph (b) to
read as follows:
Sec. 3021.2 Applicability.
* * * * *
(b) Subparts A through D to part 3010 of this chapter apply to
appeals of post office closings or consolidations.
* * * * *
0
77. Amend newly redesignated Sec. 3021.13 by revising paragraph (a)
to read as follows:
Sec. 3021.13 Deadlines for appeals.
(a) In general. If the Postal Service has issued a final
determination to close or consolidate a post office, an appeal is due
within 30 days of the final determination being made available in
conformance with Sec. 3021.3(b).
* * * * *
0
78. Revise newly redesignated Sec. 3021.14 to read as follows:
Sec. 3021.14 Participation by others.
(a) A person served by the post office to be closed or consolidated
pursuant to the Postal Service written determination under review who
desires to intervene in the proceeding, or any other interested person,
or any counsel, agent, or other person authorized or recognized by the
Postal Service as such interested person's representative or the
representative of such interested person's recognized group, such as
Postmasters, may participate in an appeal by sending written comments
to the Postal Regulatory Commission in the manner described in Sec.
3021.11.
(b) Persons may submit comments supporting or opposing a Commission
order returning the entire matter to the Postal Service for further
consideration. Comments must be filed in accordance with the deadlines
established in Sec. Sec. 3021.41 through 3021.43. Commenters may use
PRC Form 61, which is available on the Commission's website, https://www.prc.gov.
0
79. Amend newly redesignated Sec. 3021.40 by revising paragraph (a)
to read as follows:
Sec. 3021.40 Participant statement.
(a) When a timely Petition for Review of a decision to close or
consolidate a post office is filed, the Secretary shall furnish
petitioner with a copy of PRC Form 61. This form is designed to inform
petitioners on how to make a statement of the petitioner's arguments in
support of the petition.
* * * * *
PART 3022--RULES FOR COMPLAINTS
0
80. The authority for newly redesignated part 3022 continues to read
as follows:
Authority: 39 U.S.C. 503; 3622.
0
81. Revise newly redesignated Sec. 3022.1 to read as follows:
Sec. 3022.1 Applicability.
(a) The rules in this part govern the procedure for complaints
filed under 39 U.S.C. 3662 that meet the form and manner requirements
of subpart B of this part. Part 3010 of this chapter applies unless
otherwise stated in this part or otherwise ordered by the Commission.
(b) Subpart E to part 3010 of this chapter does not apply to this
part unless and until the Commission makes a finding under Sec.
3022.30(a)(1) that the complaint raises material issues of fact or law
and that the issues shall be considered through a hearing on the
record.
0
82. Amend newly redesignated Sec. 3022.10 by revising paragraph
(a)(10) to read as follows:
Sec. 3022.10 Complaint contents.
(a) * * *
(10) Include a certification that the complaint has been served on
the United States Postal Service as required by Sec. 3022.11.
* * * * *
0
83. Revise newly redesignated Sec. 3022.11 to read as follows:
Sec. 3022.11 Service.
Any person filing a complaint must simultaneously serve a copy of
the complaint on the Postal Service at this address:
[email protected].
[[Page 9656]]
A person without internet access may contact the Secretary to obtain
approval for alternative methods of service.
0
84. Amend newly redesignated Sec. 3022.12 by revising paragraph
(b)(2) to read as follows:
Sec. 3022.12 Pleadings filed in response to a complaint.
* * * * *
(b) * * *
(2) If the Commission invokes the rate or service inquiry special
procedures under Sec. 3022.13 to the complaint, the answer is due
contemporaneously with the Postal Service's report under Sec. 3023.11
of this chapter if the complaint has not been resolved by that date.
* * * * *
0
85. Amend newly redesignated Sec. 3022.13 by revising paragraphs (b)
and (c) to read as follows:
Sec. 3022.13 Conditions for applying rate or service inquiry
procedures to complaints.
* * * * *
(b) The Commission may in its discretion, sua sponte, attempt to
resolve a complaint through the rate or service inquiry procedures of
Sec. 3023.11 of this chapter if the Commission finds that there is a
reasonable likelihood that such procedures may result in resolution of
the complaint. The Commission will issue an order to apply the
procedures of Sec. 3023.11 of this chapter prior to the due date for
the Postal Service answer set forth in Sec. 3022.12.
(c) If the Commission determines that application of paragraph (a)
of this section is appropriate and the Postal Service is unable to
resolve the complaint within 45 days, or such other period of time as
ordered by the Commission, the Postal Service shall file its answer in
accordance with Sec. 3022.12(b)(2).
0
86. Revise newly redesignated Sec. 3022.20 to read as follows:
Sec. 3022.20 Sufficiency of information.
If, after review of the information submitted pursuant to this
part, the Commission determines that additional information is
necessary to enable it to evaluate whether the complaint raises
material issues of fact or law, the Commission shall, in its
discretion, either require the complainant and/or the Postal Service to
provide additional information as deemed necessary, issue an
appropriate order to appoint an investigator in accordance with Sec.
3022.21, or do both.
0
87. Amend newly redesignated Sec. 3022.30 by revising paragraph
(a)(1) to read as follows:
Sec. 3022.30 Beginning proceedings on complaints.
(a) * * *
(1) A notice and order in accordance with Sec. 3010.151 of this
chapter that finds the complaint raises one or more material issues of
fact or law and begin proceedings on the complaint; or
* * * * *
0
88. Amend newly redesignated Sec. 3022.41 by revising paragraph (a)
introductory text to read as follows:
Sec. 3022.41 Satisfaction.
(a) If a complaint is resolved informally, in whole or in part,
subsequent to Commission action under Sec. 3022.30(a)(1), the
complainant must promptly file:
* * * * *
PART 3023--RULES FOR RATE OR SERVICE INQUIRIES BY THE PUBLIC ABOUT
POSTAL SERVICE ACTIVITY
0
89. The authority for newly redesignated part 3023 continues to read
as follows:
Authority: 39 U.S.C. 503; 3662.
0
90. Amend newly redesignated Sec. 3023.11 by revising paragraph (b)
to read as follows:
Sec. 3023.11 Rate or service inquiry procedures.
* * * * *
(b) The Commission will monitor all rate or service inquiries to
determine if Commission action under Sec. 3023.12 is appropriate.
* * * * *
0
91. Revise newly redesignated Sec. 3023.12 to read as follows:
Sec. 3023.12 Treatment as a complaint.
If the Commission receives a volume of rate or service inquiries on
the same or similar issue such that there may be cause to warrant
treatment as a complaint, it may appoint an investigator to review the
matter under Sec. 3022.21 of this chapter or appoint a Public
Representative representing the interests of the general public to
pursue the matter.
PART 3024--SPECIAL RULES FOR COMPLAINTS ALLEGING VIOLATIONS OF 39
U.S.C. 404a
0
92. The authority for newly redesignated part 3024 continues to read
as follows:
Authority: 39 U.S.C. 404a; 3662.
0
93. Revise newly redesignated Sec. 3024.1 to read as follows:
Sec. 3024.1 Applicability.
The rules in this part govern proceedings filed under 39 U.S.C.
3662 alleging violations of 39 U.S.C. 404a that meet the requirements
of Sec. Sec. 3022.2 and 3022.10 of this chapter.
0
94. Amend newly redesignated Sec. 3024.5 by revising paragraph (a)
introductory text to read as follows:
Sec. 3024.5 Postal Service rules that create an unfair competitive
advantage.
(a) A complaint alleging a violation of 39 U.S.C. 404a(a)(1) must
show that a Postal Service rule, regulation, or standard has the effect
of:
* * * * *
PART 3025--PROCEDURES RELATED TO COMMISSION VIEWS SUBMITTED TO THE
SECRETARY OF STATE
0
95. The authority for part 3025 continues to read as follows:
Authority: 39 U.S.C. 407; 503.
0
96. The heading for newly redesignated part 3025 is revised to read as
set forth above.
PART 3030--REGULATION OF RATES FOR MARKET DOMINANT PRODUCTS
0
97. The authority for newly redesignated part 3030 continues to read
as follows:
Authority: 39 U.S.C. 503; 3622.
0
98. Amend newly redesignated Sec. 3030.501 by revising paragraphs
(b)(1) through (3), (d), (e), (h) through (l), and (m)(1) and (2) to
read as follows:
Sec. 3030.501 Definitions.
* * * * *
(b) * * *
(1) In the case of a notice of a Type 1-A or Type 1-B rate
adjustment filed 12 or more months after the last Type 1-A or Type 1-B
notice of rate adjustment, the full year limitation on the size of rate
adjustments calculated pursuant to Sec. 3030.521;
(2) In the case of a notice of a Type 1-A or Type 1-B rate
adjustment filed less than 12 months after the last Type 1-A or Type 1-
B notice of rate adjustment, the partial year limitation on the size of
rate adjustments calculated pursuant to Sec. 3030.522; and
(3) In the case of a notice of a Type 1-C rate adjustment, the
annual limitation calculated pursuant to Sec. 3030.521 or Sec.
3030.522, as applicable, for the most recent notice of a Type 1-A or
Type 1-B rate adjustment.
* * * * *
(d) De minimis rate increase means a rate adjustment described in
Sec. 3030.530.
(e) Maximum rate adjustment means the maximum rate adjustment that
the
[[Page 9657]]
Postal Service may make for a class pursuant to a notice of Type 1-A or
Type 1-B rate adjustment. The maximum rate adjustment is calculated in
accordance with Sec. 3030.520.
* * * * *
(h) Type 1-A rate adjustment means a rate adjustment described in
Sec. 3030.504.
(i) Type 1-B rate adjustment means a rate adjustment described in
Sec. 3030.505.
(j) Type 1-C rate adjustment means a rate adjustment described in
Sec. 3030.506.
(k) Type 2 rate adjustment means a rate adjustment described in
Sec. 3030.507.
(l) Type 3 rate adjustment means a rate adjustment described in
Sec. 3030.508.
(m) * * *
(1) In the case of a Type 1-A or Type 1-B rate adjustment, the
percentage calculated pursuant to Sec. 3030.526; and
(2) In the case of a Type 1-C rate adjustment, the percentage
calculated pursuant to Sec. 3030.527.
0
99. Amend newly redesignated Sec. 3030.504 by revising paragraph (c)
to read as follows:
Sec. 3030.504 Type 1-A rate adjustment--in general.
* * * * *
(c) A Type 1-A rate adjustment for any class that is less than the
applicable annual limitation results in unused rate adjustment
authority associated with that class. Part or all of the unused rate
adjustment authority may be used in a subsequent rate adjustment for
that class, subject to the expiration terms in Sec. 3030.526(e).
0
100. Amend newly redesignated Sec. 3030.506 by revising paragraph
(b)(1) to read as follows:
Sec. 3030.506 Type 1-C rate adjustment--in general.
* * * * *
(b)(1) Except as provided in paragraph (b)(2) of this section, a
Type 1-C rate adjustment may generate unused rate adjustment authority,
as described in Sec. 3030.527.
* * * * *
0
101. Amend newly redesignated Sec. 3030.511 by revising paragraphs
(b)(1) and (2), (d), and (k) to read as follows:
Sec. 3030.511 Proceedings for Type 1-A, Type 1-B, and Type 1-C rate
adjustment filings.
* * * * *
(b) * * *
(1) Whether the planned rate adjustments measured using the formula
established in Sec. 3030.523(c) are at or below the annual limitation
calculated under Sec. 3030.521 or Sec. 3030.522, as applicable; and
(2) Whether the planned rate adjustments measured using the formula
established in Sec. 3030.523(c) are at or below the limitation
established in Sec. 3030.529.
* * * * *
(d) Within 14 days of the conclusion of the public comment period
the Commission will determine, at a minimum, whether the planned rate
adjustments are consistent with the annual limitation calculated under
Sec. 3030.521 or Sec. 3030.522, as applicable, the limitation set
forth in Sec. 3030.529, and 39 U.S.C. 3626, 3627, and 3629 and issue
an order announcing its findings.
* * * * *
(k) A Commission finding that a planned Type 1-A, Type 1-B, or Type
1-C rate adjustment is in compliance with the annual limitation
calculated under Sec. 3030.521 or Sec. 3030.522, as applicable; the
limitation set forth in Sec. 3030.529; and 39 U.S.C. 3626, 3627, and
3629 is decided on the merits. A Commission finding that a planned Type
1-A, Type 1-B, or Type 1-C rate adjustment does not contravene other
policies of 39 U.S.C. chapter 36, subchapter I is provisional and
subject to subsequent review.
0
102. Amend newly redesignated Sec. 3030.512 by revising paragraphs
(b)(1), (3), and (4), (b)(9)(ii), and (e) to read as follows:
Sec. 3030.512 Contents of notice of rate adjustment.
* * * * *
(b) * * *
(1) The annual limitation calculated as required by Sec. 3030.521
or Sec. 3030.522, as appropriate. This information must be supported
by workpapers in which all calculations are shown and all input values,
including all relevant CPI-U values, are listed with citations to the
original sources.
* * * * *
(3) The percentage change in rates for each class of mail
calculated as required by Sec. 3030.523. This information must be
supported by workpapers in which all calculations are shown and all
input values, including current rates, new rates, and billing
determinants, are listed with citations to the original sources.
(4) The amount of new unused rate adjustment authority, if any,
that will be generated by the rate adjustment calculated as required by
Sec. 3030.526 or Sec. 3030.527, as applicable. All calculations are
to be shown with citations to the original sources. If new unused rate
adjustment authority will be generated for a class of mail that is not
expected to cover its attributable costs, the Postal Service must
provide the rationale underlying this rate adjustment.
* * * * *
(9) * * *
(ii) Whether the Postal Service has excluded the rate incentive
from the calculation of the percentage change in rates under Sec.
3030.523(e) or Sec. 3030.524.
* * * * *
(e) The notice of rate adjustment shall identify for each affected
class how much existing unused rate adjustment authority is used in the
planned rates calculated as required by Sec. 3030.528. All
calculations are to be shown, including citations to the original
sources.
* * * * *
0
103. Amend newly redesignated Sec. 3030.520 by revising paragraphs
(b) and (d)(2) to read as follows:
Sec. 3030.520 Calculation of maximum rate adjustment.
* * * * *
(b) Type 1-A and Type 1-B rate adjustments are subject to an
inflation-based annual limitation computed using CPI-U values as
detailed in Sec. Sec. 3030.521(a) and 3030.522(a).
* * * * *
(d) * * *
(2) For a Type 1-B notice of rate adjustment, the annual limitation
for the class plus the unused rate adjustment authority for the class
that the Postal Service elects to use, subject to the limitation under
Sec. 3030.529.
* * * * *
0
104. Amend newly redesignated Sec. 3030.523 by revising paragraph
(e)(1) to read as follows:
Sec. 3030.523 Calculation of percentage change in rates.
* * * * *
(e) * * *
(1) Rate incentives may be excluded from a percentage change in
rates calculation. If the Postal Service elects to exclude a rate
incentive from a percentage change in rates calculation, the rate
incentive shall be treated in the same manner as a rate under a
negotiated service agreement (as described in Sec. 3030.524).
* * * * *
0
105. Amend newly redesignated Sec. 3030.524 by revising paragraph (a)
to read as follows:
Sec. 3030.524 Treatment of volume associated with negotiated service
agreements and rate incentives that are not rates of general
applicability.
(a) Mail volumes sent at rates under a negotiated service agreement
or a rate incentive that is not a rate of general applicability are to
be included in the
[[Page 9658]]
calculation of percentage change in rates under Sec. 3030.523 as
though they paid the appropriate rates of general applicability. Where
it is impractical to identify the rates of general applicability (e.g.,
because unique rate categories are created for a mailer), the volumes
associated with the mail sent under the terms of the negotiated service
agreement or the rate incentive that is not a rate of general
applicability shall be excluded from the calculation of percentage
change in rates.
* * * * *
0
106. Revise newly redesignated Sec. 3030.525 to read as follows:
Sec. 3030.525 Limitation on application of unused rate adjustment
authority.
Unused rate adjustment authority may only be applied after applying
the annual limitation calculated pursuant to Sec. 3030.521 or Sec.
3030.522.
0
107. Amend newly redesignated Sec. 3030.526 by revising paragraphs
(b) and (c)(2) to read as follows:
Sec. 3030.526 Calculation of unused rate adjustment authority for
Type 1-A and Type 1-B rate adjustments.
* * * * *
(b) When notices of Type 1-A or Type 1-B rate adjustments are filed
12 months apart or less, annual unused rate adjustment authority will
be calculated. Annual unused rate adjustment authority for a class is
equal to the difference between the annual limitation calculated
pursuant to Sec. 3030.521 or Sec. 3030.522 and the percentage change
in rates for the class calculated pursuant to Sec. 3030.523(b)(1).
(c) * * *
(2) Interim unused rate adjustment authority is equal to the Base
Average applicable to the second notice of rate adjustment (as
developed pursuant to Sec. 3030.521(b)) divided by the Recent Average
utilized in the first notice of rate adjustment (as developed pursuant
to Sec. 3030.521(b)) and subtracting 1 from the quotient. The result
is expressed as a percentage.
* * * * *
0
108. Amend newly redesignated Sec. 3030.527 by revising paragraphs
(a), (c), and (d) to read as follows:
Sec. 3030.527 Calculation of unused rate adjustment authority for
Type 1-C rate adjustments.
(a) For a notice of Type 1-C rate adjustment, unused rate
adjustment authority for a class is calculated in two steps. First, the
difference between the annual limitation calculated pursuant to Sec.
3030.521 or Sec. 3030.522 for the most recent notice of Type 1-A or
Type 1-B rate adjustment and the percentage change in rates for the
class calculated pursuant to Sec. 3030.523(b)(2) is calculated.
Second, the unused rate adjustment authority generated in the most
recent Type 1-A or Type 1-B rate adjustment is subtracted from that
result.
* * * * *
(c) Unused rate adjustment authority generated under paragraph (a)
of this section for a class shall be added to the unused rate
adjustment authority generated in the most recent notice of Type 1-A
rate adjustment on the schedule maintained under Sec. 3030.526(f). For
purposes of Sec. 3030.528, the unused rate adjustment authority
generated under paragraph (a) of this section for a class shall be
deemed to have been added to the schedule maintained under Sec.
3030.526(f) on the same date as the most recent notice of Type 1-A or
Type 1-B rate adjustment.
(d) Unused rate adjustment authority generated under paragraph (a)
of this section shall be subject to the limitation under Sec.
3030.529, regardless of whether it is used alone or in combination with
other existing unused rate adjustment authority.
0
109. Amend newly redesignated Sec. 3030.530 by revising paragraph (b)
to read as follows:
Sec. 3030.530 De minimis rate increases.
* * * * *
(b) No unused rate adjustment authority will be added to the
schedule of unused rate adjustment authority maintained under Sec.
3030.526(f) as a result of a de minimis rate increase.
* * * * *
0
110. Revise newly redesignated Sec. 3030.562 to read as follows:
Sec. 3030.562 Supplemental information.
The Commission may require the Postal Service to provide
clarification of its request or to provide information in addition to
that called for by Sec. 3030.561 in order to gain a better
understanding of the circumstances leading to the request or the
justification for the specific rate adjustments requested.
0
111. Amend newly redesignated Sec. 3030.563 by revising paragraph (b)
to read as follows:
Sec. 3030.563 Treatment of unused rate adjustment authority.
* * * * *
(b) Pursuant to an exigent request, rate adjustments may use
existing unused rate adjustment authority in amounts greater than the
limitation described in Sec. 3030.528 of this subpart.
* * * * *
0
112. Amend newly redesignated Sec. 3030.565 by revising paragraphs
(b) and (c) to read as follows:
Sec. 3030.565 Special procedures applicable to exigent requests.
* * * * *
(b) The Commission will hold a public hearing on the Postal Service
request. During the public hearing, responsible Postal Service
officials will appear and respond under oath to questions from the
Commissioners or their designees addressing previously identified
aspects of the Postal Service's request and the supporting information
provided in response to the topics specified in Sec. 3010.561 of this
chapter.
(c) Interested persons will be given an opportunity to submit to
the Commission suggested relevant questions that might be posed during
the public hearing. Such questions, and any explanatory materials
submitted to clarify the purpose of the questions, should be filed in
accordance with part 3010, subpart B, of this chapter and will become
part of the administrative record of the proceeding.
* * * * *
PART 3040--PRODUCT LISTS AND THE MAIL CLASSIFICATION SCHEDULE
0
113. The authority for newly redesignated part 3040 continues to read
as follows:
Authority: 39 U.S.C. 503; 3622; 3631; 3642; 3682.
0
114. Revise the heading to part 3040 to read as set forth above.
0
115. Revise newly redesignated Sec. 3040.102 to read as follows:
Sec. 3040.102 Product lists.
(a) Market dominant product list. The market dominant product list
shall be published in the Federal Register at appendix A to subpart A
of part 3040--Market Dominant Product List.
(b) Competitive product list. The competitive product list shall be
published in the Federal Register at appendix B to subpart A of part
3040--Competitive Product List.
0
116. Amend newly redesignated Sec. 3040.181 by revising paragraph (b)
to read as follows:
Sec. 3040.181 Supporting justification for material changes to
product descriptions.
* * * * *
(b)(1) As to market dominant products, explain why the changes are
not inconsistent with each requirement of 39 U.S.C. 3622(d) and part
3030 of this chapter; or
[[Page 9659]]
(2) As to competitive products, explain why the changes will not
result in the violation of any of the standards of 39 U.S.C. 3633 and
part 3035 of this chapter.
* * * * *
0
117. Amend newly redesignated Sec. 3040.190 by revising paragraph
(c)(1) to read as follows:
Sec. 3040.190 Minor corrections to product descriptions.
* * * * *
(c) * * *
(1) Explain why the proposed corrections do not constitute material
changes to the product description for purposes of Sec. 3040.180;
* * * * *
PART 3045--RULES FOR MARKET TESTS OF EXPERIMENTAL PRODUCTS
0
118. The authority for newly redesignated part 3045 continues to read
as follows:
Authority: 39 U.S.C. 3641.
0
119. Amend newly redesignated Sec. 3045.3 by revising paragraphs
(a)(1)(ii) and (a)(2)(vi) and adding reserved paragraph (b) to read as
follows:
Sec. 3045.3 Contents of notice.
(a) * * *
(1) * * *
(ii) Establish that the introduction or continued offering of the
experimental product will not create an unfair or otherwise
inappropriate competitive advantage for the Postal Service or any
mailer, particularly in regard to small business concerns, as defined
in Sec. 3010.101(t) of this chapter; and
* * * * *
(2) * * *
(vi) Includes a data collection plan for the market test, including
a description of the specific data items to be collected. The minimum
data collection plan requirements are described in Sec. 3045.20.
(b) [Reserved]
0
120. Revise newly redesignated Sec. 3045.10 to read as follows:
Sec. 3045.10 Duration.
A market test may not exceed 24 months in duration unless the
Commission authorizes an extension pursuant to a request filed by the
Postal Service under Sec. 3045.11.
0
121. Amend newly redesignated Sec. 3045.15 by revising paragraphs (a)
and (b) to read as follows:
Sec. 3045.15 Dollar amount limitation.
(a) The Consumer Price Index used for calculations under this part
is the CPI-U index, as specified in Sec. Sec. 3030.521(a) and
3030.522(a) of this chapter.
(b) An experimental product may only be tested if total revenues
that are anticipated or received by the Postal Service do not exceed
$10 Million in any fiscal year, as adjusted for the change in the CPI-U
index, as specified in paragraph (d) of this section ($10 Million
Adjusted Limitation). Total revenues anticipated or received may exceed
the $10 Million Adjusted Limitation in any fiscal year if an exemption
is granted pursuant to Sec. 3045.16.
* * * * *
0
122. Amend newly redesignated Sec. 3045.16 by revising paragraph
(f)(3) to read as follows:
Sec. 3045.16 Exemption from dollar amount limitation.
* * * * *
(f) * * *
(3) Estimate the additional revenue that is anticipated by the
Postal Service for each fiscal year remaining on the market test,
including any extension period granted by the Commission in accordance
with Sec. 3045.11(c), and provide available supporting documentation;
and
* * * * *
0
123. Revise newly redesignated Sec. 3045.17 to read as follows:
Sec. 3045.17 Prevention of market disruption.
Notwithstanding the $10 Million Adjusted Limitation or any
adjustment granted pursuant to Sec. 3045.16, the Commission may limit
the amount of revenues the Postal Service may obtain from any
particular geographic market as necessary to prevent the creation of an
unfair or otherwise inappropriate competitive advantage for the Postal
Service or any mailer, particularly in regard to small business
concerns, as defined in Sec. 3010.101(t) of this chapter.
0
124. Amend newly redesignated Sec. 3045.18 by revising paragraphs
(a), (d)(1)(i)(B), and (d)(2)(i)(B) to read as follows:
Sec. 3045.18 Request to add a non-experimental product or price
category based on an experimental product to the product list.
(a) If the Postal Service seeks to add a non-experimental product
or price category based on a former or current experimental product to
the market dominant or competitive product list, the Postal Service
shall file a request, pursuant to 39 U.S.C. 3642 and part 3040, subpart
B of this chapter, to add a non-experimental product or price category
to the applicable product list.
* * * * *
(d) * * *
(1)(i) * * *
(B) The market test is expected to exceed any authorized limitation
specified in Sec. Sec. 3045.15 and 3045.16 during any fiscal year,
whichever is earlier.
* * *
(2)(i) * * *
(B) The market test is expected to exceed any authorized limitation
specified in Sec. Sec. 3035.15 and 3035.16 Sec. Sec. 3045.15 and
3045.16 during any fiscal year, whichever is earlier.
* * * * *
0
125. Amend newly redesignated Sec. 3045.20 by revising paragraph (a)
introductory text to read as follows:
Sec. 3045.20 Data collection and reporting requirements.
(a) A notice of a market test shall include a data collection plan
for the market test as required by Sec. 3045.3(a)(2)(vi). Data
collection plans shall include, at a minimum:
PART 3055--SERVICE PERFORMANCE AND CUSTOMER SATISFACTION REPORTING
0
126. The authority for part 3055 continues to read as follows:
Authority: 39 U.S.C. 503, 3622(a), 3652(d) and (e); 3657(c).
0
127. Revise 3055.1 to read as follows:
Sec. 3055.1 Annual reporting of service performance achievements.
For each market dominant product specified in the Mail
Classification Schedule in part 3040, appendix A to subpart A of part
3040 of this chapter, the Postal Service shall file a report as part of
the section 3652 report addressing service performance achievements for
the preceding fiscal year.
0
128. Revise Sec. 3055.30 to read as follows:
Sec. 3055.30 Periodic reporting of service performance achievements.
For each market dominant product specified in the Mail
Classification Schedule in part 3040, appendix A to subpart A of part
3040 of this chapter, the Postal Service shall file a Quarterly Report
with the Commission addressing service performance achievements for the
preceding fiscal quarter (within 40 days of the close of each fiscal
quarter).
0
129. Revise Sec. 3055.90 to read as follows:
Sec. 3055.90 Reporting of customer satisfaction.
For each market dominant product specified in the Mail
Classification
[[Page 9660]]
Schedule in part 3040, appendix A to subpart A of part 3040 of this
chapter, the Postal Service shall file a report as part of the section
3652 report, unless a more frequent filing is specifically indicated,
addressing customer satisfaction achievements for the preceding fiscal
year. The report shall include, at a minimum, the specific reporting
requirements presented in Sec. Sec. 3055.91 through 3055.92.
PART 3060--ACCOUNTING PRACTICES AND TAX RULES FOR THE THEORETICAL
COMPETITIVE PRODUCTS ENTERPRISE
0
130. The authority for part 3060 continues to read as follows:
Authority: 39 U.S.C. 503, 2011, 3633, 3634.
0
131. Revise Sec. 3060.21 to read as follows:
Sec. 3060.21 Income report.
The Postal Service shall file an Income Report in the form and
content of table 1 to Sec. 3060.21.
Table 1 to Sec. 3060.21--Competitive Products Income Statement--PRC Form CP-01
[$ in 000s]
----------------------------------------------------------------------------------------------------------------
Percent
FY 20xx FY 20xx-1 Change from change from
SPLY SPLY
----------------------------------------------------------------------------------------------------------------
Revenue: $x,xxx $x,xxx $xxx xx.x
(1) Mail and Services Revenues.............. xxx xxx xx xx.x
(2) Investment Income....................... x,xx x,xxx xxx xx.x
(3) Total Competitive Products Revenue...... .............. .............. .............. ..............
Expenses: x,xxx .............. .............. ..............
(4) Volume-Variable Costs................... x,xxx x,xxx xxx xx.x
(5) Product Specific Costs.................. x,xxx x,xxx xxx xx.x
(6) Incremental Inframarginal Costs......... x,xxx x,xxx xxx xx.x
(7) Total Competitive Products Attributable x,xxx x,xxx xxx xx.x
Costs......................................
(8) Net Contribution Competitive Products x,xxx x,xxx xxx xx.x
Market Tests...............................
(9) Net Income Before Institutional Cost x,xxx x,xxx xxx ..............
Contribution...............................
(10) Required Institutional Cost x,xxx x,xxx xxx x.x.x
Contribution...............................
(11) Net Income (Loss) Before Tax........... x,xxx x,xxx xxx xx.x
(12) Assumed Federal Income Tax............. x,xxx x,xxx xxx xx.x
(13) Net Income (Loss) After Tax............ x,xxx x,xxx xxx xx.x
----------------------------------------------------------------------------------------------------------------
Line (1): Total revenues from Competitive Products volumes and Ancillary Services.
Line (2): Income provided from investment of surplus Competitive Products revenues.
Line (3): Sum total of revenues from Competitive Products volumes, services, and investments.
Line (4): Total Competitive Products volume-variable costs as shown in the Cost and Revenue Analysis (CRA)
report.
Line (5): Total Competitive Products product-specific costs as shown in the CRA report.
Line (6): Inframarginal costs calculated as part of total Competitive Products incremental costs as shown in ACR
Library Reference ``Competitive Product Incremental and Group Specific Costs'' (Currently NP10).
Line (7): Sum total of Competitive Products costs (sum of lines 4, 5, and 6).
Line (8): Net Contribution Competitive Products Market Tests as shown in the Annual Compliance Report.
Line (9): Difference between Competitive Products total revenues and attributable costs and Market Tests
Contributions (line 3 less line 7 plus line 8).
Line (10): Minimum amount of Institutional cost contribution required under 39 CFR 3035.7 of this chapter.
Line (11): Line 9 less line 10.
Line (12): Total assumed Federal income tax as calculated under 39 CFR 3060.40..................................
Line (13): Line 11 less line 12.
----------------------------------------------------------------------------------------------------------------
CHAPTER III--[AMENDED]
0
132. In chapter III of title 39, revise all references to ``Web site''
to read ``website.''
By the Commission.
Ruth Ann Abrams,
Acting Secretary.
[FR Doc. 2020-01055 Filed 2-18-20; 8:45 am]
BILLING CODE 7710-FW-P
