[Federal Register Volume 67, Number 98 (Tuesday, May 21, 2002)]
[Proposed Rules]
[Pages 35766-35774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12644]
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POSTAL RATE COMMISSION
39 CFR Part 3001
[Docket No. RM2002-1; Order No. 1341]
Rules of Practice and Procedure
AGENCY: Postal Rate Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission proposes revising its rules of practice to
require, in most instances, that participants file documents
electronically over the Internet. This will allow the Commission and
others to apply modern technology to certain routine procedures. This
should reduce the burden and expense associated with traditional hard
copy filing. Conforming and related changes to other rules, including
those addressing service and submission of computer-generated studies
and analyses, are also proposed. These changes also will contribute to
more efficient participation in Commission proceedings and enhance
administration.
DATES: Working session on June 12, 2002 (10:00 a.m.); comments due by
June 21, 2002.
ADDRESSES: Send correspondence concerning this proposal to Steven W.
Williams, Secretary, Postal Rate Commission, 1333 H Street, NW., Suite
300, Washington, DC 20268-0001. The working session will be held
at the same address.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
Postal Rate Commission, 1333 H Street, NW., Suite 300, Washington, DC
20268-0001, 202-789-6820.
SUPPLEMENTARY INFORMATION:
Regulatory History
See 66 FR 33034 (June 20, 2001).
Procedural History
The Commission has preliminarily concluded that it is feasible and
desirable to make electronic filing of documents over the Internet the
standard procedure for filing official documents with the Commission.
The Internet-based filing system that the Commission has developed is
referred to as Filing Online. Nearly all participants in Commission
proceedings rely on word processing software to generate the documents
that they file, and nearly all have the capability to send those
documents in electronic form to the Commission via the Internet using
standard browser technology. The Commission has developed a user
interface to support the electronic filing of documents by participants
in Commission proceedings. Tests of this interface have shown it to be
secure, reliable, and user-friendly. It is therefore appropriate to
propose that online filing be made the standard procedure for filing
documents in Commission proceedings.
The Commission laid the groundwork for the conversion from hard
copy to online filing in its notice and order concerning electronic
filing (order no. 1317), issued June 13, 2001. There the Commission
notified the public of the specific online filing procedures that it
was developing, and of its intention to incorporate them in a notice of
proposed rulemaking. It invited both written comments on those
procedures and oral comments at a technical conference that it
conducted on July 11, 2001. The public's suggestions resulted in some
adjustments to the procedures proposed.
On October 24, 2001, the Commission issued a notice to participants
in all of the dockets that were active at that time. The notice
announced that the Commission was setting up docket no. T2002-1
as a vehicle for conducting a live test of its proposed online filing
procedures. Participants were encouraged to take hard copy documents
that they were filing in other dockets and file them simultaneously in
docket no. T2002-1 via the Internet. Additional minor revisions
were made to the Commission's proposed electronic filing procedures as
a result of this test. The notice indicated the Commission's desire to
make online filing procedures available on an optional basis shortly
after the conclusion of the test.
Proposal To Make Filing Over the Internet Standard Procedure
The results of the T2002-1 test docket have led the
Commission to conclude preliminarily that the potential benefits to
participants and the Commission promised by online filing are
substantial, but that to fully realize them it will be necessary to
make online filing the standard procedure for filing and serving
documents in its proceedings. Therefore, the Commission is proposing to
make the use of Filing Online mandatory. A participant may obtain a
waiver of the online filing requirement if it demonstrates to the
Commission that it faces special circumstances that make online filing
infeasible. The Commission proposes to revise its rules of practice and
arrange for any training that may be necessary to ensure that the
benefits of online filing will be available to all participants in the
next major rate or classification proceeding that the Commission
conducts.
The Benefits of Filing Online
As noted in order no. 1317, using Filing Online should
substantially reduce the cost of participating in Commission
proceedings. The process for filing documents will be greatly
simplified. Transaction costs associated with the actual filing of hard
copy, as well as the costs of paper, printing, and postage, will be
largely eliminated. The need to serve participants will be eliminated
for all but the most lengthy documents. The cumbersome attestation
requirement for interrogatory answers will be eliminated as well. This
streamlining should reduce the time and expense of filing documents
with the Commission. It should also give participants earlier access to
documents filed by others, making it possible to shorten the current
cycle of pleading and response. It should also eliminate any confusion
over service dates.
Because documents will be available in portable document format
(pdf), they will be vastly more efficient to download. It will also be
easier to cut and paste portions of filed documents into related
pleadings and testimony. Conversion to Filing Online should also
facilitate document management and electronic archiving for
participants. It should bring about these improvements without a
reduction in security, since web transmissions between participants and
the Commission's server will be over encrypted channels. Processing
documents on the Commission's Web site will be secure as well.
Procedures are provided that allow a participant to temporarily store
documents that it plans to file in a reserved area on the Commission's
server without losing control over its documents. Filing Online also
provides procedures that safeguard against inadvertent filing of
documents that have not been finalized. Materials subject to a
protective order, however, may not be filed through Filing Online, and
will not be posted on the Commission's Web site.
Conversion to Filing Online also offers significant benefits to the
Commission. The time and expense of applying scanning and optical
character recognition procedures to filed documents will be eliminated
for most
[[Page 35767]]
filings. As a result, filings can be posted on the Commission's Web
site more quickly, in drastically reduced file sizes, and in a form
that will ensure consistency when they are reproduced on different
printers by different users. This will enable the Commission to provide
participants with faster and more efficient service.
Account Holders
The specific procedures that are proposed for filing documents
online with the Secretary of the Commission are set forth in the Filing
Online user guide, which may be accessed from the Filing Online Login
page on the Commission's Web site (url: www.prc.gov). A hard copy of
the Filing Online user guide will also be mailed to each person who was
on a service list of any Commission docket that was active within the
past year. It will also be mailed to anyone else that requests it.
Basic to the proposed Filing Online procedures is the requirement
that each individual who wishes to represent a participant in a
Commission proceeding become an account holder. An individual may
become an account holder by filling out the account holder application
that is attached to this notice as attachment 2 and mailing it to the
Secretary.
When the Commission accepts an application to become an account
holder, the account holder assumes a contractual duty to ensure that
each document that he or she files online is authentic, accurate, and
authorized by the participant that the account holder purports to
represent. This duty is the same as that imposed by the Commission's
current subscription rule [39 CFR 3001.11(e)]. Under proposed 39 CFR
3001.6(c), the account holder must notify the Commission if this
authority to represent a particular participant ends.
The Secretary will assign the new account holder a user name and
temporary password and deliver them by e-mail. The e-mail will instruct
the new account holder to immediately access the Profile page through
the Commission's Filing Online link and select a new password. The new
password and all files subsequently submitted using the new password
will be transmitted to the Commission's server over an encrypted
channel. The account holder will be encouraged to take the added
precaution of periodically changing his or her password, which can be
done on the Profile page. These procedures will keep the password-
protected material in each account holder's dedicated user area on the
Commission's server secure.
By submitting a document for filing under the account holder's user
name and password, the account holder would vouch for the accuracy and
authenticity of that document in the same way that a person would vouch
for the accuracy and authenticity of the documents that he or she
submits under the Commission's current subscription rule. This
procedure will dispense with the need to sign individual documents that
are filed online. For the same reason, submitting an interrogatory
answer to the Commission for filing under an account holder's user name
and password will dispense with the need for the witness to attest to
the accuracy of his or her answer. Attestation will not be required
until the interrogatory is offered as record evidence.
The Basic Mechanics of Filing Documents Online
In order to use Filing Online, an account holder will access the
Commission's Web site. The account holder will click on the Filing
Online link in the banner at the top of the Home page and log in by
providing the appropriate user name and password. A Welcome page will
appear. This page will offer several choices. A page can be selected
that will explain how to file a document (the Create Filing Record
page). Another page can be selected that will list and display all the
documents the account holder is currently preparing for filing (the
User Activity page). The account holder may also select a page that
will list all of the documents that have been submitted on behalf of a
participant that the account holder represents, indicate which account
holder submitted them, and whether the filings are pending or accepted
(the Participant Activity page). Finally, a page can be selected that
will explain how the account holder's password or address information
can be changed (the Profile page).
There are several ways for an account holder to file a document.
All begin with the creation of a filing record. A filing record may be
thought of as an empty receptacle that the account holder will fill.
The account holder will begin this process by clicking on "create
filing record." If the document to be filed consists of a single
file, the account holder will fill in the basic record-identifying
fields by selecting the appropriate docket number and filing party, and
entering the title of the document to be filed exactly as it appears on
the first page of that document. The document may be uploaded either
from the account holder's personal computer or from the user area
reserved for the account holder on the Commission's server.
In order for the document to be filed, however, it must be in text-
based pdf form. Requiring that all Filing Online documents be submitted
in this form is essential to the Commission's ability to provide a
seamless exchange among all participants of documents that are filed
online. It will ensure that page and line citations to any document
downloaded via Filing Online will be consistent; it will make it
feasible to assemble Filing Online documents into a searchable
database; and it will drastically reduce the size of downloaded files.
The account holder can produce a document in text-based pdf form on
a personal computer using standard Adobe Acrobat software.
Alternatively, the account holder can convert a document to text-based
pdf form when submitting it to the Commission by simply clicking on
either the "create pdf" button on the Edit Filing page, the
Add Files to Computer page, or the User Activity page.
If the material that the user wishes to file consists of a set of
files, the user must select a text file from the set to treat as the
"host document." A host document is one that references all
other files in the set and describes them (as attachments, exhibits,
workpapers, et cetera). The user will be required to enter the title of
the host document exactly as it appears on the first page of that
document. The host document and any collateral files that belong in the
set should then be uploaded, either from the user's work station or
from the user's area on the Commission's web server. The host document
must be submitted in text-based pdf form. Any collateral files that can
be produced in text-based pdf must also be submitted in that form. The
"create pdf" button on the Commission's Edit Filing page,
Add Files from Computer page, and the User Activity page can convert
Postscript, Word, Rich Text Format or Wordperfect files into text-based
pdf files. While data files may be submitted in their native format,
they must accompany a host document that is in the required pdf format.
This is necessary to enable the Commission to track and archive the
filed material.
After the record-identifying information has been supplied, the
host document and attachments have been assembled, and the host
document and any other documents capable of being converted to text-
based pdf format have been converted, the user will then click the
"proceed with filing" button. This will bring up the
Confirmation page.
[[Page 35768]]
The confirmation page gives the user a final chance to view a filing
before submitting it. Clicking the "Save on Activity page"
button saves the record on the User Activity page without filing it. If
the account holder submits the record to the Commission, a Receipt page
will appear that reflects the time that the Commission received the
submission. The account holder should print a copy of this record. The
receipt acknowledges only the fact that the Commission's server has
received the submission. It does not constitute acceptance of the
submission as an officially filed document. The receipt will contain a
unique document identifier that may be used if problems subsequently
arise.
The Secretary or designee will check the document-identifying
information for the host document and review any collateral files. If
they are found to be in compliance with the Commission's rules, the
filing will be posted on the Daily Listing page. This will indicate
that the filing has been accepted. If a problem is found the account
holder will be contacted.
A dedicated User Activity page will be provided for the account
holder's convenience. It will be password-protected and will have three
parts. The "holding area" screen provides a space on the
Commission's server where the account holder can temporarily upload
individual files in order to assemble them into a set, or test their
conversion to pdf format, without creating an official filing record.
Documents in the holding area can be added directly to a prospective
filing using the "add files from holding area" button.
Files will remain in the holding area for 7 days.
Filings not yet submitted will be listed in the "filings in
progress" table on the User Activity page. An account holder will
be able to save a filing record and return to it later from this
screen. Unsubmitted filings will remain on this screen for seven days.
Filings that the account holder has submitted to the Commission in the
last seven days appear in the "submitted filings" table on
the same page. All submitted filings will be listed on this screen as
"pending" until they have been reviewed and accepted or
rejected. Once a document is accepted, its status will change from
"pending" to "filed."
A Participant Activity page will be available where multiple
account holders who represent the same participant can view a list of
all of the filings that they submitted on behalf of that participant,
on that day and the previous business day, whether the filings are
pending or accepted. Both hard copy and electronic files will be
listed.
A Profile page will be made available where account holders can
change their password and update their address information. To maintain
security, account holders are encouraged to periodically change their
password. Updating the address information on the Profile page will
simultaneously update the account holder's address on the service list
and participant representative pages on the Commission's Web site.
A Help page will be available where the public may obtain
information in a question and answer format about how to use the Filing
Online system. Commission information specialists will also be
available to answer questions by telephone at (202) 789-6847
during regular Commission office hours.
Compatibility With Users' Systems
Filing Online is designed to be compatible with most commonly-used
web browsers, computer operating systems, and word processing software.
The basic uploading and downloading functions provided by Filing Online
are available to account holders that use any recent edition of the
Internet Explorer, Netscape, or AOL web browsers, the Windows or Mac
operating systems, and Word or WordPerfect word processing software.
The Commission recommends that all account holders download and use the
most recent version of Adobe Acrobat Reader to view documents
downloaded through Filing Online. Adobe Acrobat Reader may be
downloaded free of charge at www.Adobe.com.
At its inception, Filing Online will offer some enhanced functions
as well, such as batch downloading and batch printing. These will be
available to account holders that use any recent version of the Windows
operating system together with either Internet Explorer, Netscape 4.7
or Netscape 6.2. Batch downloading and batch printing, however, will
not initially be available to account holders who use other versions of
Netscape, or who use a Mac operating system. The availability of these
enhanced functions will gradually be expanded.
Comparison With Hard Copy Filing System
Filing Online filing procedures should prove to be easier to comply
with than the hard copy-based filing procedures that are currently
followed. Most documents filed with the Commission will be generated in
the same manner as they are currently, using standard word processing,
spreadsheet, and statistical software. The principal restriction that
Filing Online will impose on users is the requirement that each filing
have at least a host document that is submitted in text-based pdf form.
This conversion is straightforward for users who have Adobe Acrobat
software. Users who do not have Adobe Acrobat software can make the
conversion on the Commission's Web site at the touch of a button. This
will ensure that all copies subsequently made of host documents filed
through Filing Online will be true to the original, wherever and
however they are generated.
The requirement that host documents be filed in text-based pdf
format should not add to the complexity of producing such documents for
filing with the Commission. Currently, hard copy text documents are
typically composed in Word or Wordperfect format and then printed
before they are filed with the Commission. If a filer uses different
printers with different printer drivers to print the same document, it
may affect the formatting, and therefore, the appearance of the
document, particularly if the document incorporates a graph or table
generated by non-text based software. For this reason, the prudent
participant currently will review a document one final time after it
has been printed but before it has been submitted to the Commission, in
order to catch such discrepancies. The same precaution should be
followed when submitting a document under Filing Online. A document
should be reviewed one final time in pdf form before it is submitted to
the Commission in order to catch similar discrepancies that might arise
between the word-processed version and the pdf version.
Once produced in pdf form, it should be much easier and cheaper to
file documents with the Commission under Filing Online than under the
current hard copy system, for the reasons discussed above. As was also
noted above, the need to serve documents filed through Filing Online on
other participants will largely be eliminated.
Training and Implementation
After comments on this notice of proposed rulemaking have been
received and evaluated, the Commission hopes to adopt Filing Online as
the standard procedure for filing documents in Commission proceedings.
The Commission expects to have Filing Online rules in place and to
implement the system in the summer of 2002.
As noted, the Commission established docket no. T2002-1 on
October 24, 2001, as a vehicle for testing online
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filing procedures. Participants in docket no. T2002-1 became
account holders by submitting the application that was attached to the
notice to participants in that docket. Those who became account holders
in that docket should continue to test the Filing Online system until
they are familiar with its procedures. Those who expect to represent
participants in future Commission proceedings who are not account
holders should apply to become account holders and become familiar with
Filing Online procedures by filing test documents in docket no.
T2002-1. An account holder may file documents in any active
docket. An account holder application is provided with this notice of
proposed rulemaking as attachment 2. A workshop for current and
prospective account holders will be conducted by the Commission where
instruction on Filing Online procedures will be provided. That workshop
is scheduled for June 12, 2002, at 10:00 a.m. Those interested in
participating are asked to notify the secretary by June 5, 2002.
Proposed Changes to the Commission's Rules of Practice
The changes to the Commission's rules of practice that implement
Filing Online are set forth in attachment 1. Included in these changes
are some that relate only indirectly to Filing Online.
The basic change that the Commission proposes is to revise rule 9
to make it mandatory that all documents that are filed with the
Commission be filed via the internet through Filing Online, unless a
waiver is obtained. To obtain a waiver, a participant must demonstrate
that there are special circumstances that make it infeasible for it to
use Filing Online to file a document.
The Commission proposes to revise rule 10 to include a list of
documents that must be filed both through Filing Online and in hard
copy form. The list consists of testimony and briefs that exceed 20
pages in length, and formal rate or classifications change requests.
Such documents are likely to be cumbersome for participants to download
and print because they are likely to be long, to include images or
spreadsheets, or are likely to be submitted in large batches. Where
supplementary hard copy filing is required, the form, content, and
service requirements for hard copy documents that are set forth in
proposed rules 9 though 12 must be followed. Among them is a
requirement that hard copy documents filed with the Commission be
printed from a text-based pdf version of the document, where possible.
See proposed rule 10(b). The proposal that lengthy documents still be
served in hard copy form reflects requests made by the attendees at the
technical conference that was held at the Commission on July 11, 2001.
Documents that are filed through Filing Online will be posted on
the Commission's Web site and will be available to participants and the
public for downloading, normally on the same business day that they are
submitted. When Filing Online becomes the standard form of filing
documents with the Commission, documents filed online will be
considered served when the document is posted by the Commission on the
Daily Listing page of its Web site. Participants will not be required
to serve those documents on other participants. This change in
procedure is reflected in proposed rule 12(a). However, participants
would still be required to serve documents in hard copy form on
individuals found to be unable to receive service through the
Commission's Web site.
Proposed rule 9 requires that each individual, whether representing
himself or herself or a participant in Commission proceedings, become
an account holder in order to file documents in Commission dockets.
This requirement is set forth in proposed rule 9(b). As discussed
above, account holders would assume a contractual obligation to warrant
the authenticity and accuracy of the documents that they file through
Filing Online. They would receive a user name and a password, and a
dedicated user area on the Commission web server. Relying on account
holders to warrant the authenticity and accuracy of the documents that
they file through Filing Online would dispense with the need for the
participant's representatives to sign specific documents that they
file. This change in procedure is reflected in proposed rule 11(e).
With respect to interrogatory answers, the reliance on account
holders to warrant the authenticity and accuracy of documents filed
through Filing Online dispenses with the need for witnesses to
specifically attest to the accuracy of their answers. It is
contemplated that attestation will be not required until interrogatory
answers are offered as evidence. This change in procedure is reflected
in proposed rule 26(b).
As noted, there will be restrictions on the formats and computer
technologies that account holders may use to submit documents via
Filing Online in order to make them compatible with the Commission's
data processing system. These will be prescribed by the secretary of
the Commission in a set of instructions that will be maintained on the
Commission's Web site. Chief among them, as discussed above, is the
requirement that documents submitted via Filing Online be accompanied
by a host document that is in text-based pdf format. Proposed rule
10(a)(2) would authorize the secretary to compile and maintain these
instructions. These instructions are expected to be adapted over time
to reflect new technology and to facilitate the use of Filing Online by
all interested persons. A set of instructions in the form of a Filing
Online user guide is available on the Commission's web site, and in
hard copy form upon request.
While reviewing its proposal to require that documents filed with
the Commission be in a standardized electronic form, the Commission
also re-evaluated the form requirements that are set forth in its rules
of practice with respect to library references and computer analyses.
Current rule 31(b)(2)(vii) requires that material filed as a library
reference be provided in an "electronic version" unless it
is shown that an electronic version cannot be provided. The current
rule is broad enough to permit material to be filed as a library
reference even if it can only be read and executed on a mainframe or on
a Macintosh computer. Neither of these is commonly available hardware.
If material can only be accessed through such hardware, it imposes on
participants and the Commission the undue burden of acquiring such
hardware, or converting the files to a PC compatible form, in order to
read and execute the files. To avoid this, the Commission proposes to
revise this rule to require that material filed as a library reference
be provided on "PC media," unless it is shown that it
cannot be provided in that form.
The Commission's evidence rule governing the submission of computer
analyses requires that a listing of input data, output data, and source
codes be provided, unless it is shown that they cannot be provided. See
current rule 31(k)(3)(i). As with the current library reference rule,
this is broad enough to allow such material to be submitted in a form
that can only be read and executed by a mainframe or a Macintosh
computer. To make such material reasonably accessible to participants
and the Commission, the Commission proposes to revise this rule to
require that a copy of input data, output data, and source codes be
provided in a form that allows them to be replicated using a publicly
available PC application.
[[Page 35770]]
Postal Rate Commission Filing Online Account Holder
Application \1\
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\1\ This application appears as attachment 2 in the notice
distributed to the service list and in the notice as posted on the
Commission's web site. The changes proposed in the Code of Federal
Regulations appear as attachment 1. The order of appearance has been
reversed for purposes of publication in the Federal Register.
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To file documents electronically, each account holder must have a
login name and password. Upon submitting a completed application to the
Commission, the account holder will receive a login name and password.
The login name/password procedure is designed to ensure that material
filed using the Filing Online system conforms to the Commission's rules
of practice, is authorized by the account holder, that it is filed on
behalf of the participant that it purports to represent, that the
account holder has read the material filed and is familiar with its
contents, and that the account holder warrants that it is authentic,
accurate and otherwise in compliance with rule 11(e). If the account
holder authorizes support staff to use his/her login name and password
for purposes of filing documents with the Commission, the account
holder remains ultimately responsible for ensuring that each filing
submitted under his/her login name and password is in full compliance
with rule 11(e). The Commission, therefore, cautions each account
holder to employ suitable monitoring procedures to ensure that any
material filed under his/her account fully conforms to that rule.
Account Holder Name
Affiliation
Address
Phone
Fax
Email Address
I, ________recognize that as the
account holder I remain responsible for the authenticity and accuracy
of all documents filed under my login name and password and undertake
to monitor filings with the Commission to safeguard that no
unauthorized filing is made under my login name and password.
Signature of account holder.
Privacy Act Notice: The collection of this information is
authorized by 39 U.S.C. 3603. This information will be used for
administering the filing of documents in electronic form by
participants in Postal Rate Commission proceedings. It may be publicly
disclosed under the routine uses given in the Privacy Act system notice
published at 64 FR 56819 (1999).
For the reasons discussed above, the Commission proposes to amend
subpart A of its rules of practice and procedure as set forth below.
Ordering Paragraphs
It is ordered:
1. Interested persons are invited to submit comments on the
Commission's proposed Filing Online proposal and this notice of
proposed rulemaking no later than June 21, 2002.
2. The Secretary shall cause this notice of proposed rulemaking to
be published in the Federal Register.
3. A workshop for current and prospective account holders will be
held on June 12, 2002, at 10:00 a.m., in the hearing room of the
Commission, 1333 H Street NW., Washington, DC.
Steven W. Williams,
Secretary.
List of Subjects in 39 CFR Part 3001
Administrative practice and procedure, Postal Service.
For the reasons discussed in the preamble, the Commission proposes
to amend 39 CFR part 3001-Rules of Practice and Procedure Subpart
A-Rules of General Applicability as follows:
PART 3001-RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 3001 continues to read as
follows:
Authority: 39 U.S.C. 404(b); 3603; 3622-24; 3661; 3662;
3663.
Subpart A-Rules of General Applicability
2. Revise 3001.6(c) to read as follows:
3001.6 Appearances.
* * * * *
(c) Notice of appearance and withdrawal of appearance. An
individual intending to appear before the Commission or its presiding
officer in a representative capacity for a participant in a proceeding
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 participant whom he/she represents as a person to
whom communications from the Commission in regard to the filing are to
be addressed. A person whose authority to represent a participant in a
specific Commission proceeding has been terminated shall file a timely
notice of withdrawal of appearance with the Commission.
* * * * *
3. Revise 3001.9 through 3001.13 to read as
follows:
3001.9 Filing of documents.
(a) Filing with the Commission. The filing of each written document
required or authorized by these rules or any applicable statute, rule,
regulation, or order of the Commission, or by direction of the
presiding officer shall be made using the Internet (Filing Online)
pursuant to 3001.10(a) at the following url: www.prc.gov,
unless a waiver is obtained. If a waiver is obtained, a hard copy
document may be filed either by mailing or by hand delivery to the
Office of the Secretary, Postal Rate Commission, 1333 H Street, NW.,
suite 300, Washington, DC 20268-0001 during regular business
hours on a date no later than that specified for such filing.
(b) Account holder. In order for a document to be accepted using
Filing Online, it must be submitted to the Commission by a Filing
Online account holder. The authority of the account holder to represent
the participant on whose behalf the document is filed must be valid and
current, in conformance with 3001.6.
(c) Acceptance for filing. Only such documents as conform to the
requirements of this part and any other applicable rule, regulation, or
order of the Commission shall be accepted for filing. In order for a
document to be accepted using Filing Online, it must be submitted to
the Commission by a Filing Online account holder.
(1) Subject to rule 9(d):
(i) A document submitted through Filing Online is filed on the date
indicated on the receipt issued by the Secretary. It is accepted when
the Secretary, after review, has posted it on the Daily Listing page of
the Commission's Web site.
(ii) A hard copy document is filed on the date stamped by the
secretary. It is accepted when the Secretary, after review, has posted
it on the Daily Listing page of the Commission's Web site.
(2) Any document received after the close of regular business hours
or on a Saturday, Sunday, or holiday, shall be deemed to be filed on
the next regular business day.
(d) Rejected filings. Any filing that does not comply with any
applicable statute, rule, regulation, 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 or the secretary's
designee will 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 such failure may be cause for
[[Page 35771]]
subsequently striking all or any part of any document.
3001.10 Form and number of copies of documents.
(a) Documents. Each document filed with the Commission must be
submitted through Filing Online by an account holder, unless a waiver
is obtained. The text of documents filed with the Commission shall be
formatted in not less than one and one-half spaced lines except that
footnotes and quotations may be single spaced. Documents must be
submitted in Arial 12 point font, or such program, format, or font as
the presiding officer may designate.
(b) Attachments to documents filed online will be accepted in their
native format (i.e., Excel, Lotus, et cetera). The form of documents
filed as library references is governed by
3001.31(b)(2)(iv).
(1) The following shall be filed both online and in hard copy form
pursuant to paragraph (b):
(i) Requests for changes in rates or classifications, including
supporting documentation.
(ii) Written testimony, including appendices and exhibits, that
exceeds 20 pages in length.
(iii) Briefs that exceed 20 pages in length.
(2) Documents filed online must satisfy computer system
compatibility requirements specified by the Secretary. They may be
accessed from the Filing Online page on the Commission's Web site,
www.prc.gov.
(3) Documents requiring privileged or protected treatment shall not
be filed online.
(b) Hard copies. Each document filed in paper form must 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 .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.
If the document is bound, it shall be bound on the left side. Copies of
documents for filing and service must be printed from a text-based pdf
version of the document, where possible. Otherwise, they may be
reproduced by any duplicating process that produces clear and legible
copies. Participants in proceedings conducted under subpart H who are
unable to comply with these requirements may seek to have them waived.
Each person filing a hard copy document with the Commission must
provide an original and 24 fully conformed copies of the document
required or permitted to be filed under this part, except for a
document filed under seal, for which only the original and two (2)
copies need be filed. The copies need not be signed but shall show the
full name of the individual signing the original document and the
certificate of service attached thereto.
(c) Computer media. A participant that has obtained a waiver of the
online filing requirement of 3001.9(a) may submit a
document on standard PC media, simultaneously with the filing of one
printed original and three hard copies, provided that the stored
document is a file generated in either Acrobat (pdf), Word, or
WordPerfect, or Rich Text Format (rtf).
3001.11 General contents of documents.
(a) Caption and title. 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).
(b) Designation of individuals to receive service. Each notice of
intervention filed pursuant to 3001.20 or 20a must
state the name, full mailing address, telephone number, and e-mail
address of up to two individuals designated to receive service of hard
copy documents relating to the proceeding.
(c) Contents. In the event there is no rule, regulation, or order
of the Commission which specifically prescribes the contents of any
document to be filed, such document shall contain a proper
identification of the parties concerned and a concise but complete
statement of the relief sought and of the facts and citations of
authority and precedent relied upon.
(d) Improper matter. Defamatory, scurrilous, or unethical matter
shall not be included in any document filed with the Commission.
(e) Subscription. Each document filed with the Commission shall be
subscribed. Subscription constitutes a certification that he/she has
read the document being subscribed and filed; that he/she knows the
contents thereof; that if executed in any representative capacity, the
document has been subscribed and executed in the capacity specified in
the document with full power and authority so to do; that to the best
of his/her 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.
(1) For a document filed via the Internet by an account holder, the
subscription requirement is met when the document is filed with the
Commission.
(2) For a hard copy document filed under either
3001.10(b) or (c), the original shall be signed in ink by
the individual filing the same or by an authorized officer, employee,
attorney, or other representative and all other copies of such document
filed with the Commission and served on the participants in any
proceeding shall be fully conformed thereto.
(f) Table of contents. Each document filed with the Commission
consisting of 20 or more pages shall include a table of contents with
page references. For briefs see 3001.34.
(g) Certificate of service. A certificate of service signed in ink
must be attached to the original of each hard copy document filed with
the Commission showing service on all participants in a proceeding as
prescribed by 3001.12. All copies filed and served shall
be fully conformed thereto.
3001.12 Service of documents.
(a) Service by account holders. Each document filed in a proceeding
via the Internet by an Account Holder shall be deemed served on all
participants upon its acceptance for filing by the Commission, except
for:
(1) A document subject to 3001.10(a)(1), which must
meet the service requirements that apply to hard copy documents as well
as those that apply to documents filed online.
(2) A document that must be served on a participant that the
Commission or presiding officer has determined is unable to receive
service through the Commission's Web site.
(b) Service by others. If the Commission or presiding officer has
determined that a participant is unable to file documents online,
documents filed by that participant must meet the service requirements
that apply to hard copy documents.
(c) Service by the Commission. Except as provided in this section,
each document issued by the Commission or presiding officer shall be
deemed served upon the participants in the proceeding upon its posting
by the Commission on its Web site. Service of Commission documents on
any participant that the Commission or presiding officer has determined
is unable to receive service
[[Page 35772]]
through the Commission Web site shall be by mail.
(d) Hard copy documents. Each participant filing a hard copy
document in a proceeding shall serve such document upon each person on
the proceeding's service list, unless the Commission or presiding
officer otherwise directs.
(e) Limitation on extent of hard copy service. To avoid the
imposition of an unreasonable burden upon participants, the Commission
or the presiding officer may, by appropriate order, limit service of
hard copy documents to service upon participants intending to actively
participate in the hearing, or upon a person or persons designated for
properly representative groups, or by requiring the making of documents
available for convenient public inspection, or by any combination of
such methods.
(f) Service list. The Secretary shall maintain a current service
list in each proceeding which shall include the participants in that
proceeding and up to two individuals designated for service of
documents by each participant . The service list for each current
proceeding will be available on the Commission's Web site, www.prc.gov.
Each participant is responsible for ensuring that its listing on the
Commission's Web site is accurate, and should promptly notify the
Commission of any errors.
(g) Method of hard copy service. Service of hard copy documents may
be made by First-Class Mail or personal delivery, to the address shown
for the individuals designated on the Secretary's service list. Service
of any hard copy document upon the Postal Service shall be made by
delivering or mailing six copies thereof to the address shown for the
individual designated in the Secretary's service list.
(h) Date of hard copy service. Whenever service is made by mail,
the date of the postmark shall be the date of service. Whenever service
is made by personal delivery, the date of such delivery shall be the
date of service.
(i) Form of hard copy certificate of service. The certificate of
service of hard copy documents shall show the name of the participant
or his/her counsel making service, the date and place of service, and
include the statement that "I hereby certify that I have this day
served the foregoing document upon all participants of record in this
proceeding in accordance with section 12 of the rules of
practice."
3001.13 Docket and hearing calendar.
The Secretary shall maintain a docket of all proceedings, and each
proceeding as initiated shall be assigned an appropriate designation.
The Secretary shall maintain a hearing calendar of all proceedings that
have been set for hearing. Proceedings shall be heard on the date set
in the hearing order, except that the Commission may for cause, with or
without motion, at any time with due notice to the parties advance or
postpone the date of hearing. All documents filed in a docket, other
than matter filed under seal, and the hearing calendar may be accessed
remotely via the Commission's Web site, or viewed at the Commission's
docket section during regular business hours.
4. Amend 3001.20 by revising paragraph (c) to read as
follows:
3001.20 Formal Intervention.
* * * * *
(c) Form and time of filing. Notices of intervention shall be filed
no later than the date fixed for such filing in any notice or order
with respect to the proceeding issued by the Commission or its
Secretary, unless in extraordinary circumstances for good cause shown,
the Commission authorizes a late filing. Notices of intervention shall
conform to the requirements of 3001.9 through
3001.12.
* * * * *
5. Amend 3001.20a by revising paragraph (a) to read as
follows:
3001.20a Limited participation by persons not parties.
* * * * *
(a) Form of Intervention. Notices of intervention as a limited
participator shall be in writing, shall set forth the nature and extent
of the intervenor's interest in the proceeding, and shall conform to
the requirements of 3001.9 through 3001.12.
* * * * *
6. Amend 3001.26 to revise paragraphs (a) through (c)
and paragraph (e) to read as follows:
3001.26 Interrogatories for purpose of discovery.
(a) Service and contents. In the interest of expedition and limited
to information which appears reasonably calculated to lead to the
discovery of admissible evidence, any participant may propound to any
other participant in a proceeding written, sequentially numbered
interrogatories, by witness, requesting nonprivileged information
relevant to the subject matter in such proceeding, to be answered by
the participant served, who shall furnish such information as is
available to the participant. A participant through interrogatories may
require any other participant to identify each person whom the other
participant expects to call as a witness at the hearing and to state
the subject matter on which the witness is expected to testify. The
participant propounding the interrogatories shall file them with the
Commission in conformance with 3001.9 through
3001.12. 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 7 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 participant 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
participant responding to the interrogatories shall file the answers in
conformance with 3001.9 through 3001.12 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 bases for
objection shall be clearly and fully stated. If objection is made to
part of an interrogatory, the part shall be specified. A participant
claiming privilege shall identify the specific evidentiary privilege
asserted and state the reasons for its applicability. A participant
claiming undue burden shall state with particularity the effort 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 in conformance with 3001.9
through 3001.12 within 10 days of the filing of the interrogatories.
* * * * *
[[Page 35773]]
(e) Compelled answers. The Commission, or the presiding officer,
upon motion of any participant 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 found not to be valid, or
may compel an additional answer if the initial answer is found to be
inadequate. Such compelled answers shall be filed in conformance with
3001.9 through 3001.12 within 7 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.
* * * * *
7. Amend 3001.27 to revise paragraphs (a) through (c)
and paragraph (e) to read as follows:
3001.27 Requests for production of documents or things
for purpose of discovery.
(a) Service and contents. In the interest of expedition and limited
to information which appears reasonably calculated to lead to the
discovery of admissible evidence, any participant may serve on any
other participant to the proceeding a request to produce and permit the
participant making the request, or someone acting in his/her behalf, to
inspect and copy any designated documents or things 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 participant 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 participant requesting the production of
documents or things shall file its request with the Commission in
conformance with 3001.9 through 3001.12.
(b) Answers. The participant responding to the request shall file
an answer with the Commission in conformance with
3001.9 through 3001.12 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 request is objected to pursuant to paragraph (c)
of this section.
(c) Objections. In the interest of expedition, the bases for
objection shall be clearly and fully stated. If objection is made to
part of an item or category, the part shall be specified. A participant
claiming privilege shall identify the specific evidentiary privilege
asserted and state with particularity the reasons for its
applicability. A participant 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 in conformance
with 3001.9 through 3001.12 within ten days of the
request for production.
* * * * *
(e) Compelled answers. Upon motion of any participant 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 found not to
be valid. Such compelled documents or things shall be made available to
the participant making the motion within 7 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. When complying with orders to produce documents or things,
notice shall be filed in conformance with 3001.9
through 3001.12. The Commission or the presiding officer may, on such
terms and conditions as are just and reasonable, order that any
participant in a proceeding shall respond to a request for inspection,
and may make any protective order of the nature provided in
3001.26(g) as may be appropriate.
8. Amend 3001.28 to revise paragraphs (a) through (c)
and paragraph (e) to read as follows:
3001.28 Requests for admissions for purpose of discovery.
(a) Service and content. In the interest of expedition, any
participant may serve upon any other participant a written request for
the admission, for purposes of the pending proceeding only, of any
relevant, unprivileged facts, including the genuineness of any
documents or exhibits to be presented in the hearing. The participant
requesting the admission shall file its request with the Commission in
conformance with 3001.9 through 3001.12.
(b) Answers. Each matter of which an admission is requested shall
be separately set forth and is admitted unless within 14 days after the
request is filed, or within such other period as may be fixed by the
Commission or presiding officer, the participant to whom the request is
directed files a written answer or objection pursuant to paragraph (c)
of this section. A participant who answers a request for admission
shall file its answer with the Commission in conformance with
3001.9 through 3001.12.
(c) Objections. In the interest of expedition, the bases for
objection shall be clearly and fully stated. If objection is made to
part of an item, the part shall be specified. A participant claiming
privilege shall identify the specific evidentiary privilege asserted
and state the reasons for its applicability. A participant claiming
undue burden shall state with particularity the effort 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 in conformance with 3001.9 through
3001.12, within 10 days of the request for admissions.
* * * * *
(e) Compelled answers. Upon motion of any participant to the
proceeding 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 found not to be valid. Such compelled answers shall be
filed with the Commission in conformance with 3001.9
through 3001.12 within 7 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.
9. Amend 3001.30 by revising paragraph (e)(3) to read
as follows:
3001.30 Hearings.
* * * * *
(e) * * *
(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 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. Participants
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 calendar days (including
[[Page 35774]]
one working day) before the scheduled appearance of the witness. If a
participant has obtained permission to receive service of documents in
hard copy form, hard copy notices of intent to conduct oral cross-
examination of witnesses for that participant should be delivered to
counsel for that participant and served three or more working days
before the announced appearance of the witness, and cross-examination
exhibits should be delivered to counsel for the witness at least two
calendar days (including one working day) before the scheduled
appearance of the witness.
* * * * *
10. Amend 3001.31 by:
a. Revising the first sentence of paragraph (b)(2)(iv);
b. Revising paragraph (b)(2)(vii);
c. Removing and reserving paragraph (f);
d. Removing and reserving paragraph (g);
e. Revising paragraph (k)(3)(i); and
f. Revising paragraph (k)(3)(i)(i).
3001.31 Evidence.
* * * * *
(b) * * *
(2) * * *
(iv) Filing procedure. Participants filing material as a library
reference shall file contemporaneous written notice of this action in
conformance with 3001.9 through 3001.12.
* * *
* * * * *
(vii) Electronic version. Material filed as a library reference
shall also be made available on standard PC media, absent a showing of
why a version on PC media cannot be supplied or should not be required
to be supplied. The material provided on PC media must be submitted in
a form that allows it to be replicated using a publicly available PC
application. The library reference documentation shall include file
names and corresponding descriptions of file contents, and shall
identify the applications necessary to execute the files. This
documentation should be included in both the hard copy and the
electronic version of the library reference.
* * * * *
The revisions are to read as follows:
(k) * * *
(3) Computer analyses. (i) In the case of computer analyses that
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 copy of the input and output data and
source codes (or a showing pursuant to paragraph (k)(3)(iii) of this
section as to why such codes cannot be so furnished). The copy provided
must be submitted in a form that allows it to be replicated using a
publicly available PC application. For the purpose of completing such
foundation, the following additional items shall be deemed
presumptively necessary and shall be furnished upon request of a
participant, the Commission, or the presiding officer, unless the
presumption is overcome by an affirmative showing.
* * * * *
(i) 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. Machine-readable data
files and program files shall be provided in a form that allows them to
be replicated using a publicly available PC application. Any machine-
readable data file or program file so provided must be identified and
described in accompanying hard copy documentation. In addition, files
in text format must be accompanied by hard copy instructions for
printing them. Files in machine code must be accompanied by hard copy
instructions for executing them.
* * * * *
11. Amend 3001.42 by revising paragraph (a) to read as
follows:
3001.42 Public information and requests.
* * * * *
(a) Notice and publication. Service of intermediate and recommended
decisions, advisory opinions and public reports upon parties to the
proceedings is provided in 3001.12(c) and
3001.39(d). Descriptions of the Commission's organization, its methods
of operation, statements of policy and interpretations, procedural and
substantive rules, and amendments thereto will be filed with and
published in the Federal Register, and are available on the
Commission's Web site, www.prc.gov. Commission recommended decisions,
advisory opinions and public reports, orders, and intermediate
decisions will be released to the press and made available to the
public promptly, by posting on the Commission's Web site.
* * * * *
[FR Doc. 02-12644 Filed 5-20-02; 8:45 am]
BILLING CODE 7710-FW-P