[Federal Register Volume 62, Number 93 (Wednesday, May 14, 1997)]
[Pages 26594-26595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12669]



[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 

    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,
[FR Doc. 97-12669 Filed 5-13-97; 8:45 am]