[Federal Register: May 14, 1997 (Volume 62, Number 93)] [Notices] [Page 26594-26595] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr14my97-135] ======================================================================= ----------------------------------------------------------------------- POSTAL RATE COMMISSION [Docket No. MC97-2] Parcel Classification Reform; Notice of Withdrawal of Request by United States Postal Service and Order Granting Motion to Close Docket May 9, 1997. On April 14, 1997, the United States Postal Service filed a pleading announcing the withdrawal of its Request in this proceeding and moving that the Commission close this docket. Notice of United States Postal Service of Withdrawal of Request for a Recommended Decision and Motion to Close Docket, April 14, 1997. In its pleading, the Postal Service states that it is currently engaged in evaluating its financial situation, as well as existing schedules of all postal rates and fees, and that this review may lead to an omnibus request for changes in rates and fees pursuant to 39 U.S.C. Sec. 3622. According to the Service, such a request would include the subclasses for which it proposed mail classification and other changes in this proceeding, and these latter proposals ``would be considered for inclusion in such a request.'' Id. at 1, n.1. The Postal Service claims that the current review of its financial status and existing rate and fee schedules has four consequences. First, it says the review has required an allocation of significant time and resources, many of which ``are unique and would be required for both litigation of the current case and preparation and litigation of a general rate case.'' Id. at 1. Second, the Service has found that developing comprehensive proposals ``requires reliance on projections and assumptions that in some respects overtake the bases of its proposals in the instant proceeding.'' Id. at 1-2.\1\ Third, should the Governors decide to submit an omnibus rate request in the near future, the Service notes that simultaneous litigation of a rate case and the current case might present a burden for mailers, other participants, and perhaps the Commission. Finally, the Service argues that the successive implementation of rate and fee changes resulting from decisions in this case and a rate proceeding could prove to be unduly disruptive to mailers and to the Postal Service. Id. at 2. --------------------------------------------------------------------------- \1\ The Service also claims that efforts by some parties to expand the scope of the instant proceeding, if successful, would require allocation of additional resources and increase the possibility of differences between its initial request here and proposals currently undergoing review. --------------------------------------------------------------------------- In light of all these considerations, the Postal Service states that it ``has concluded that it cannot continue to participate in the instant docket in light of its efforts to develop appropriate options for the Board's consideration with respect to a general rate case.'' Ibid. Accordingly, the Service notes that the Board of Governors has authorized it to withdraw its Request in this docket, and gives notice of such withdrawal, as well as its cessation from participation in the case as of April 14, 1997. No participant has opposed the Postal Service's motion to terminate this docket in light of the withdrawal of its Request.2 However, in a response filed [[Page 26595]] on April 24, the Office of the Consumer Advocate argues that discovery in this proceeding had been hampered by certain practices of the Postal Service; that the Service has relied on flawed legal premises regarding appropriate use of Motions to Excuse from Answering; that the Commission should make greater use of its authority to suspend proceedings when the Postal Service fails to comply with discovery requests; and that the Commission should consider initiating a rulemaking proceeding to address problems with the discovery process. Response of the Office of the Consumer Advocate to the Notice of Withdrawal of Request for a Recommended Decision and Motion to Close Docket Pursuant to Presiding Officer's Ruling No. MC97-2/7, April 24, 1997. OCA claims that the difficulties it cites ``have occurred in many, if not all, ratemaking and classification proceedings in recent memory[,]'' and therefore recommends that the Commission take a ``fresh look'' at its discovery process, perhaps culminating in a rulemaking proceeding. Id. at 22. --------------------------------------------------------------------------- \2\ On April 23, the Commission received in this docket a pleading captioned, ``Joint Motion of Advertising Mail Marketing Association, Association of American Publishers and the Direct Marketing Association for Bound Printed Matter.'' The movants do not oppose the Postal Service's motion to terminate this proceeding, nor request that the Commission keep the docket open for a limited purpose. Instead, they request ``that the Commission exercise its powers pursuant to 39 U.S.C. Sec. 3623(b) and, on its own motion, initiate a proceeding to consider whether the maximum weight limitation * * * imposed upon mail otherwise eligible for bound printed matter should be increased to 15 pounds, as the Postal Service has proposed in this proceeding.'' Id. at 1. Because the Joint Motion is intended, by its own terms, as a petition for the Commission's initiation of a special-purpose mail classification change proceeding sua sponte, it will be considered independently, rather than ruled upon as a pending motion in this docket. --------------------------------------------------------------------------- The Commission shall grant the Postal Service's motion to terminate this proceeding. In view of postal management's determination to discontinue its efforts in support of the proposals pending before the Commission in this docket--an action which the Board of Governors has specifically authorized--continuing these proceedings would appear to serve no practical purpose. However, while this docket will be closed, the Commission strongly encourages the Postal Service to supply the Commission and participants with as much material responsive to outstanding Presiding Officer's Information Requests and discovery requests as is feasible at this time. Both the Commission and the participants have invested considerable efforts in exploring the factual bases of the Service's mail classification and rate proposals in this case.3 To the extent that the Service had undertaken to prepare responses to these discovery efforts prior to the determination to withdraw the Request, failure to produce them would appear wasteful, especially if the same proposals are to likely to be re-litigated in an omnibus rate case or other subsequent proceeding. Consequently, while proceedings will be terminated formally by this order, the Commission urges the Postal Service to provide responses to discovery requests or to outstanding Presiding Officer's Information Requests it might be able to prepare conveniently, in order to avoid needless duplication of effort by the Commission and participants in a putative later proceeding. --------------------------------------------------------------------------- \3\ OCA's response, supra, is indicative of the zealous, but sometimes unavailing, discovery efforts of some participants in this proceeding. In light of the current posture of the case, there is no opportunity to resolve the discovery-related issues raised by OCA. However, the Commission will continue to bear these considerations in mind in adapting its rules to discovery practice in future proceedings. --------------------------------------------------------------------------- The Commission does not believe that terminating proceedings at this time will result in prejudice to the due process rights of any participant. The Complainant in Docket No. C97-1, who moved to hold that proceeding in abeyance pending consideration of the Postal Service's proposed changes in parcel pricing in this case, has resumed prosecution of its Complaint in that docket, and the Commission has granted its request to convene an informal conference to discuss the possibility of settlement. Order No. 1170, Order Granting Request To Schedule Informal Conference, April 18, 1997.4 Additionally, as noted earlier, the Commission will consider the joint motion to initiate a new proceeding to consider one proposed mail classification change in the Postal Service's Request--and any other similar motions-- independently of this docket. --------------------------------------------------------------------------- \4\ The informal conference was held on May 1, 1997. According to a status report subsequently filed by the Postal Service, the consensus of those attending the conference was that there are sufficient grounds for exploring the possibility of settlement, and to that end parties are now engaged in a joint effort to draft a settlement agreement. Status Report Pursuant to Order No. 1170, May 7, 1997. --------------------------------------------------------------------------- It is ordered: 1. The Motion of the United States Postal Service to Close Docket No. MC97-2 is granted. 2. In view of the termination of these proceedings, all pending motions in Docket No. MC97-2 are rendered moot. 3. The Secretary shall cause this Notice and Order to be published in the Federal Register. By the Commission. Margaret P. Crenshaw, Secretary. [FR Doc. 97-12669 Filed 5-13-97; 8:45 am] BILLING CODE 7710-FW-P