Administrative Practice and Procedure, Postal Service, 51888-51894 [E8-20581]

Agencies

• POSTAL REGULATORY COMMISSION

[Federal Register Volume 73, Number 173 (Friday, September 5, 2008)]
[Proposed Rules]
[Pages 51888-51894]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20581]



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Part II





Postal Regulatory Commission





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39 CFR Parts 3001, 3030, and 3031



Administrative Practice and Procedure, Postal Service; Proposed Rule

Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / 
Proposed Rules

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POSTAL REGULATORY COMMISSION

39 CFR Parts 3001, 3030, and 3031

[Docket No. RM2008-3; Order No. 101]


Administrative Practice and Procedure, Postal Service

AGENCY: Postal Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission is proposing new rules to address two types of 
administrative filings authorized under a new postal law: complaints 
and rate and service inquiries. It is also proposing to delete existing 
complaint rules, as they are overtaken by the proposal. Issuance of 
this document reflects the Commission's ongoing implementation of new 
and revised statutory provisions.

DATES: Initial comments are due October 6, 2008. Reply comments are due 
October 27, 2008.

ADDRESSES: Submit comments electronically via the Commission's Filing 
Online system at https://www.prc.gov.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
202-789-6820 and stephen.sharfman@prc.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

    This rulemaking is part of the series of rulemakings initiated by 
the Postal Regulatory Commission (Commission) to fulfill its 
responsibilities under the Postal Accountability and Enhancement Act 
(PAEA), Public Law No. 109-435, 120 Stat. 3218 (2006). The proposed 
rules seek to implement 39 U.S.C. 3662 setting forth procedures 
governing the disposition of complaints filed with the Commission. The 
proposed rules replace existing regulations and are designed to enable 
the Commission to hear and resolve complaints in a streamlined and 
efficient manner while providing appropriate due process for all 
participants.
    The Commission's current complaint procedures are found in 39 CFR 
3001.81 et seq. The proposed rules would locate the revised, enhanced 
complaint regulations in part 3030 and delete those located in subpart 
E of part 3001. The proposed regulations would also add a new part 3031 
to set up procedures for dealing with rate or service inquiries.
    Below, the Commission discusses the proposed rules with respect to 
the complaint process. Part II presents a more thorough discussion and 
detailed outline of the main issues raised in this docket by the 
Commission's proposed rules. Part III provides a section-by-section 
analysis of each proposed new rule. The proposed rules are set forth at 
the end of this Notice. Comments by interested persons are due October 
6, 2008. Reply comments are due by October 27, 2008.
    These proposed rules represent the Commission's initial effort to 
establish a basic functional framework for addressing complaints and 
other written communications received by the Commission under its 
enhanced responsibilities due to the passage of the PAEA. These 
regulations are designed to serve as a reasonable starting point. The 
Commission expects that these rules will evolve as the Commission grows 
more familiar with the types of issues that it may be asked to 
consider. If the Commission subsequently is made aware that the 
complaint or rate or service inquiry rules are not adequate, the 
Commission will promptly begin proceedings to enhance these rules.

II. Discussion of the Proposed Rules

    The PAEA imposes a new regulatory structure on the Postal Service 
which, among other things, elevates the role that complaints play in 
providing interested persons a forum for addressing issues arising 
under specified sections in title 39. The Commission's complaint 
authority stems from amended section 3662, which provides, in relevant 
part, as follows:

    Any interested person (including an officer of the Postal 
Regulatory Commission representing the interests of the general 
public) who believes the Postal Service is not operating in 
conformance with the requirements of the provisions of sections 
101(d), 401(2), 403(c), 404a, or 601, or this chapter (or 
regulations promulgated under any of those provisions) may lodge a 
complaint with the Postal Regulatory Commission in such form and 
manner as the Commission may prescribe.

39 U.S.C. 3662(a).
    To implement amended section 3662, the Commission proposes to 
revise its existing complaint procedures and add procedures to deal 
with rate or service inquiries that are not filed as complaints. These 
proposed rules are designed to fulfill the intent of Congress as 
expressed in the text of the PAEA.
    The PAEA changed the Commission's role and its relationship with 
the Postal Service. Due to this new role, the Commission's complaint 
authority was significantly expanded by the PAEA.
    Under the former Postal Reorganization Act of 1970 (PRA), if the 
Commission found a complaint to be justified, its remedial authority 
consisted of issuing a public report or a recommended decision to the 
Governors of the Postal Service. See former 39 U.S.C. 3662 (2000), 
superseded by Pub. L. 109-435. The Commission's complaint authority 
under the PRA was much more limited and the Commission's rules 
reflected that limited role. This limited complaint authority reflected 
the Commission's greater role under the PRA in the rate setting process 
and the fact that rates were set in an open, public proceeding. In that 
process, if the public felt that the Postal Service was not complying 
appropriately with the policies of the PRA, the public could bring 
those concerns to the Commission during the rate setting proceeding and 
the Commission could move to balance these and other public policies in 
recommending domestic rates.
    Under the PAEA, the Postal Service has much greater independence 
and flexibility in managing and setting its rates subject to a limited 
number of requirements. Subject to these limits, the Postal Service now 
has broad flexibility to balance policies related to rates and 
services. The PAEA implemented Congress' goal of allowing the Postal 
Service to operate more like a business in setting its rates and 
offering services in order to allow it to more effectively compete with 
its private sector competitors.
    At the same time, the PAEA changed and expanded the Commission's 
complaint authority. The Commission is authorized to order the Postal 
Service to come into compliance with the statute and remedy the effects 
of any non-compliance, see 39 U.S.C. 3662(c), order fines for 
deliberate non-compliance, section 3662(d), and have the district 
courts of the United States enforce these administrative orders, 
section 3664. The PAEA also altered the scope of the Commission's 
complaint jurisdiction. See section 3662 (citing 39 U.S.C. 101(d), 
401(2), 403(c), 601, and chapter 36).
    This enhancement of the Commission's complaint authority reflects 
Congress' intent for complaints to become one of the major tools to 
achieve the PAEA goal of increased accountability and transparency of 
the Postal Service to the public it serves. See 39 U.S.C. 3622(b)(6) 
(``increase the transparency of the ratemaking process''); 39 U.S.C. 
3691 (transparency of service standards); 39 U.S.C. 3622(b)(3) 
(``maintain high quality service standards''); 39 U.S.C. 504(g)(3)(A) 
(``public interest in maintaining the financial transparency of a 
government establishment * * *''). However, even though Congress

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expanded the number of issues that the Commission could consider in a 
complaint proceeding, the Commission's complaint jurisdiction was not 
intended to be without limit. See U.S.C. 3662(a).
    The proposed rules distinguish between the nature of complaints 
that may be filed with the Commission. They recognize that the 
Commission's primary role is to foster public postal policy as set 
forth in the PAEA by focusing on issues and decisions with substantial 
ramifications.
    To carry out this intent of Congress, the Commission believes that 
it is appropriate to focus more of its limited resources on important 
issues that raise rate and service issues with broad implications or 
unfair competition issues, and less of its resources on issues that can 
more easily be remedied by postal management on a local level.
    Toward these ends, the Commission proposes a two-tiered approach to 
deal efficiently and expeditiously with written communications directed 
to the Commission regarding the Postal Service. As proposed, these 
communications fall into one of two categories: (1) Complaints, and (2) 
rate or service inquiries. The proposed rules treat written 
communications that satisfy the form and manner requirements discussed 
below as ``complaints'' filed under section 3662. Written 
communications that do not meet the form and manner requirements would 
be treated as rate or service inquiries provided they include some 
minimal identifying information. The differences and reasons for this 
proposed differentiation between the categories of written 
communications received by the Commission as well as the proposed 
methods of dealing with such communications are discussed below.
    These rules are intended to reflect Congressional intent that the 
complaint process be available for hearing such broad policy matters 
which, under the PRA, would have been handled in the context of a 
comprehensive proceeding. Additionally, these proposed rules are 
intended to provide for some residual remedy for mailers in the 
potential situation where the Postal Service does not adequately deal 
with mailers' individual concerns.

A. Complaints

    Form and manner requirements. The Commission's new proposed 
complaint procedures are designed largely to deal with problems, needs, 
or concerns of more than only a limited number of persons or those 
dealing with claims of unfair competition. The proposed rules 
categorize written communications as complaints under section 3662 if 
they satisfy certain ``form and manner'' requirements.\1\ These 
requirements are designed to elicit all the information necessary for 
the Commission to be able to make an informed judgment about whether or 
not the complaint raises a material issue of fact or law under section 
3662(b)(1)(A). The proposed rules, consistent with past practice, 
explicitly encourage settlement of disputes and add the option of 
alternative dispute resolution procedures.
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    \1\ The law provides the Commission with discretion to determine 
the form and procedures to use for dealing with the variety of 
complaints it may hear under 39 U.S.C. section 3662 (``Any 
interested person * * * may lodge a complaint with the Postal 
Regulatory Commission in such form and manner as the Commission may 
prescribe.'').
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    In addition to specifying the statutory section or sections to 
which a complaint must apply, Congress only intended for the Commission 
to begin proceedings if a particular complaint raised a material issue 
of fact or law. See 39 U.S.C. 3662(b)(1)(A)(i).
    Nature of complaints. 39 U.S.C. 3662 provides the basis for the 
Commission's authority to hear complaints. It provides that a complaint 
may be filed by any person who believes that the Postal Service is not 
acting in accordance with sections 101(d), 401(2), 403(c), 404(a), 601, 
and chapter 36 (or any regulations promulgated under these sections). 
It is helpful for this analysis (and to explain why the proposed rules 
were crafted in this fashion) to explore the commonalities of these 
statutory provisions. First, the Commission discusses the statutory 
provisions that may raise broad policy issues. Then, the Commission 
discusses those statutory sections that may raise issues relating to 
unfair competition.
    In the Commission's new role created by the PAEA, chapter 36 
controls the Postal Service's and Commission's authority over rates and 
services of market dominant products, competitive products, and 
experimental products. Chapter 36 expresses Congressional intent with 
respect to the national policies that the Postal Service and the 
Commission are to apply with respect to rate setting and providing 
services to the public.\2\
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    \2\ Under the PAEA, the Commission no longer recommends rates. 
The new statute provides the Postal Service with increased 
flexibility which is balanced by an increase in transparency and 
oversight by the Commission.
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    These rates and services are typically designed in a manner that 
affects a significant number of individuals, represents a pattern or 
practice, or impacts a substantial region of the nation. In certain 
circumstances, rates or services are designed to apply to individual 
mail users or limited numbers of mail users. In such situations, 
competitors may be harmed and be the most likely to seek redress.
    Chapter 36 also prescribes specific reports that the Postal Service 
and the Commission are tasked with providing. These broad reports are 
designed to increase the accountability and the transparency of the 
Postal Service to the general public it serves.
    Congress authorized complaints to be brought for violations of 
section 101(d) which requires the costs of postal operations to be 
apportioned on a fair and equitable basis. The distribution of postal 
operational costs through rates is, by its very nature, done on more 
than a localized basis. Related costs are pooled to determine national 
average costs for different categories of mail. Specific costs for an 
individual mailpiece are not typically considered under this section.
    It is important to recognize that Congress chose not to include the 
other paragraphs of section 101 in providing interested persons with an 
avenue for bringing complaints. For example, Congress's decision not to 
include paragraphs 101(a) and (b) should be read as an indicator that 
Congress did not want the Commission to focus its limited resources on 
considering complaints of individuals alleging isolated violations of 
section 101. For example, section 101(a) requires the Postal Service to 
``provide prompt, reliable, and efficient services to patrons in all 
areas and shall render postal services to all communities.'' 
Furthermore, section 101(b) provides that ``[n]o small post office 
shall be closed solely for operating at a deficit * * *.'' By excluding 
these provisions, Congress altered the Commission's complaint 
jurisdiction to controversies raising broad policy issues such as these 
cost apportionment concerns.
    Section 401(2) deals with the Postal Service's authority to 
promulgate regulations. In allowing complaints to be brought for 
violations of this section, Congress authorized interested persons to 
petition for review of specific Postal Service rules and regulations 
claimed to be unlawful. This section concerns the adoption and 
amendment of the Postal Service's rules and regulations and the overall 
policy behind those regulations, not the application of a particular 
rule to an individual mail user. This provides further support that 
Congress intended the Commission's complaint authority typically be 
used to consider issues of broad applicability.

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    Section 601 permits the carriage of letters out of the mail under 
certain conditions. Thus, it may affect potential competitors' 
abilities to compete with the Postal Service for certain aspects of the 
Postal Service's business. In allowing complaints for violations of 
this section, Congress provided a check on the monopoly powers of the 
Postal Service and a means to address claims that it was using those 
powers to give itself an unfair competitive advantage in those areas 
where Congress believed that competition with the Postal Service is in 
the best interest of the nation. Accordingly, individualized complaints 
may be based upon this section as such complaints are rooted in claims 
of unfair competition.
    Section 403(c) prohibits the Postal Service from establishing 
rates, classifications, and fees that either unduly discriminate 
against or grant an unreasonable preference to any mail users. By 
including section 403(c) within the statutory provisions that 
interested persons are allowed to file complaints under, section 3662 
provides individuals with a forum for seeking relief against the Postal 
Service action alleged to be unduly discriminatory or preferential. 
This section reflects the bedrock regulatory principle of maintaining a 
level playing field among competing private entities as well as those 
entities that compete against the Postal Service for the non-monopoly 
aspects of its business. Accordingly, individualized complaints would 
lie under this section.
    Section 404a limits the Postal Service power (1) to establish 
regulations which have the effect of harming competition; (2) to compel 
private entities to disclose information about their intellectual 
property; or (3) to use information obtained from a person without 
their consent and then offer any postal product that uses or is based 
on such information. These provisions effectively limit the Postal 
Service's authority to control certain aspects of the marketplace. In 
allowing complaints to be brought for violations of this section, 
Congress provides for an independent regulatory body to maintain fair 
competition and a level playing field among the Postal Service, its 
competitors, and its suppliers. Accordingly, individualized complaints 
may be based upon this section.
    The proposed rules are designed to help the Commission identify 
those complaints that are more likely to raise material issues of fact 
or law as required by section 3662(b)(1)(A) related to the policy 
issues attendant to chapter 36 and the enumerated sections discussed 
above. They allow for efficient use of the Commission's limited 
resources on complaints that may raise material issues of fact or law.
    At the same time, the Commission's rules are designed to encourage 
the expeditious resolution of complaints that may be less likely to 
raise broader material issues of fact or law under 3662(b)(1)(A) or 
raise broad issues of public postal policy. The proposed complaint 
rules are designed to strike an appropriate balance between ensuring 
that postal management receives increased flexibility while providing 
the accountability and transparency of the Postal Service as envisioned 
by the PAEA.
    Most local issues related to problems associated with individual 
mailers do not raise postal public policy concerns. Instead, they raise 
issues which are typically isolated incidents or those affecting only a 
few mail users. These are typically best resolved by the Postal Service 
at the local level. To ensure that the Commission is effective and 
efficient, the Commission proposes to initially take a more informal 
approach toward dealing with these types of complaints. Such procedures 
provide the Postal Service with an opportunity to remedy the alleged 
wrongdoing prior to the Commission taking any action. This serves the 
PAEA goal of allowing postal management greater flexibility in dealing 
with its customers without unnecessary and potentially burdensome 
regulatory involvement.
    The Commission, however, recognizes that some of these complaints 
may in fact raise public postal policy issues that are important to the 
postal system and have a greater potential to raise material issues of 
fact or law. Accordingly, if the Postal Service is unable to resolve 
such complaints on a more informal basis, the Commission will take 
appropriate action. If the complaint raises material issues of fact or 
law in accordance with 39 U.S.C. 3662(b)(1)(A) formal complaint 
procedures will be initiated.
    The Commission's proposed rules are also designed to provide more 
formal treatment for issues raised by individual matters when those 
issues appear to represent a potential pattern or practice affecting a 
significant number of mail users. The Commission believes that such 
systemic patterns or practices have a significant likelihood of raising 
broad policy issues whereby more formal procedures may be appropriate.

B. Rate or Service Inquiries

    The complaint procedures apply to written communications directed 
to the Commission that meet the form and manner requirements of the 
proposed complaint rules. The proposed rate or service inquiry 
procedures apply to written communications directed to the Commission 
that are not filed as complaints. The Postal Service typically is best 
suited to address these matters and should deal with such issues in the 
first instance in accordance with the PAEA goal of greater management 
responsibility and flexibility.
    Nonetheless, the Commission believes that it should be informed 
concerning matters that may bear on future complaints or its other 
responsibilities under the PAEA. By helping facilitate public 
communication with the Postal Service, the Commission furthers the PAEA 
goal of increased accountability and transparency of the Postal 
Service.
    The Commission believes also that its enhanced authority under the 
PAEA may encourage more individuals to seek the Commission's assistance 
in resolving their issues with the Postal Service. As a result, the 
proposed rules provide the mailing public with an avenue for bringing 
their concerns to appropriate Postal Service personnel.
    Rate and service inquiry procedures also allow the Commission to 
ensure that issues raised and resolved under these rules remain 
isolated incidents. The rate or service inquiry process will help the 
Commission in deciding whether to address these matters in a more 
formal manner, which could potentially include the initiation of a 
complaint proceeding by a public representative or the appointment of 
an investigator to explore the matter. 39 U.S.C. 503 allows the 
Commission to promulgate these regulations to carry out its enhanced 
responsibilities under the PAEA.

C. Commission Investigator

    The Commission's proposed rules allow it to appoint an investigator 
to explore issues raised in a complaint or rate or service inquiry 
filing. The Commission believes that the ability to appoint an 
investigator will allow it to deal more efficiently with complaints in 
certain situations, particularly where more information that cannot be 
easily obtained through more conventional means may be needed, or where 
the use of conventional means would bring undue delay. With the 
assistance of an investigator, the Commission may be able to resolve a 
complaint at an early stage of the proceeding, thereby saving the 
parties litigation costs, time, and resources.
    39 U.S.C. 503 allows the Commission to promulgate regulations to 
carry out its obligations and functions under its new, PAEA-enhanced 
responsibilities. One of these enhanced responsibilities is the 
Commission's enforcement

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authority to order the Postal Service to take remedial action. If the 
Commission finds a complaint to be justified and remedial action 
appropriate, the Commission might seek the assistance of an 
investigator to ensure that any proposed remedial action is tailored 
narrowly to address the violation without causing undue or unnecessary 
disruption.
    The Commission does not envision the investigator playing a 
dominant role in any complaint proceedings. The parties remain 
advocates for their positions and the investigator will act as a 
neutral fact gatherer in order to develop the record. As a check and 
balance, the parties will always have the opportunity to review the 
investigator's public, written findings and make comments to the 
Commission prior to its decision.

D. Conclusion

    As noted earlier, these complaint and rate or service inquiry rules 
are meant to provide structure, and allow the Commission to effectively 
and efficiently deal with concerns as they arise. At the current time, 
the Commission has confidence in the Postal Service's ability to manage 
and direct remediation of individual, localized mailer problems. If, 
over the course of time, the Commission determines through its data 
collection and monitoring of complaints and rate or service inquiries 
that the Postal Service is not dealing effectively with such 
individual, localized mailer issues, the Commission may determine that 
revised rules are necessary to allow it to play a more active role in 
the process.

III. Section-by-Section Analysis

    In this part, the Commission reviews the proposed rules, describing 
what each rule seeks to accomplish. The purpose of this section-by-
section analysis is to assist the commenters in determining the nature 
of each proposed regulation and the rationale behind it. Each proposed 
section is discussed below.
    Section 3030.1 Applicability. This proposed rule identifies the 
types of complaints that the Commission will consider as specified by 
39 U.S.C. 3662. It also identifies the other Commission rules that will 
apply to complaint proceedings including the filing requirements and 
the Commission's adjudication procedures. Paragraph (b) of this section 
makes the discovery rules inapplicable to complaint proceedings until 
the Commission initiates a proceeding on the complaint, i.e., until the 
Commission finds that the complaint raises a material issue of fact or 
law. Without such a provision, the discovery process might be abused. 
This paragraph ensures that only complainants raising material issues 
of fact or law will subject the Postal Service to the time and expense 
of the discovery process.
    Section 3030.2 Scope and nature of complaints. This proposed rule 
describes the nature of complaints that the Commission will consider. 
It expands upon the Commission's current ``Scope and nature of 
complaints'' rule, 39 CFR 3001.82, to conform with the statutory 
changes to 39 U.S.C. 3662.
    Section 3030.10 Complaint contents. This proposed rule identifies 
the information that must be included in a complaint filing in order to 
satisfy the ``form and manner'' requirements. These requirements, which 
are based largely upon the Federal Energy Regulatory Commission's 
formal complaint rule, 18 CFR 385.206, are designed to provide 
specificity as to the legal and factual basis for the complaint. The 
intent is to apprise the Postal Service of the key elements of the 
complaint, and in concert with the Postal Service's answer, to enable 
the Commission to determine whether the complaint raises a material 
issue of fact or law.
    The proposed rule requires the complainant to certify that it has 
attempted to meet or confer with the Postal Service. This criterion has 
two purposes. First, it is designed to allow the parties to explore 
whether alternative dispute resolution procedures might be effective in 
settling the issues raised by the complaint. Second, it requires an 
attempt to resolve the complaint before involving the Commission. This 
follows the Commission's long-standing policy favoring settlement. See 
39 CFR 3001.85(b).
    Section 3030.11 Service. This proposed rule requires the 
complainant to serve the complaint on the Postal Service at the same 
time the complaint is filed with the Commission. This rule ensures that 
the Postal Service receives a copy of the complaint at the time it is 
sent to the Commission instead of having to wait to be notified of the 
pending complaint.
    Section 3030.12 Pleadings filed in response to a complaint. This 
proposed rule governs the timeline for the Postal Service to respond to 
complaints. The Postal Service has 20 days to respond to a formal 
complaint. If the Postal Service files an appropriate motion, the 
timeline for the Postal Service to file its answer to a complaint is 
altered as it would be under the Federal Rules of Civil Procedure.
    Section 3030.13 Conditions for application of rate or service 
inquiry procedures. This proposed rule addresses the Commission's 
ability to apply the rate or service inquiry special procedures in 
order to attempt to resolve a complaint using the Postal Service's 
internal procedures.
    This section does not allow the Commission to use the special rate 
or service inquiry procedures in connection with complaints that raise 
unfair competition issues or concern rate or service matters with broad 
implications. As discussed above, these topics raise important policy 
issues that Congress intended the Commission to consider in the first 
instance.
    Section 3030.14 Answer contents. This proposed rule identifies the 
information to be included in an answer filed with the Commission. The 
requirements for the proposed rule are based largely upon the Federal 
Energy Regulatory Commission's answer rule, 18 CFR 385.213. The 
proposed rule is designed to elicit information necessary for the 
Commission to determine if the appropriate statutory and regulatory 
requirements have been met as well as to determine if the complaint 
raises a material issue of fact or law. The rule requires the Postal 
Service to certify that it has attempted to meet or confer with the 
complainant. This mirrors the provision in proposed rule 3030.10 
designed to foster settlement.
    Section 3030.20 Sufficiency of information. This proposed rule is 
designed to give the Commission flexibility to obtain additional 
information if it determines it would be better able to make an 
informed determination on whether a complaint raises a material issue 
of fact or law under 39 U.S.C. 3662(b)(1). This section allows 
additional information to be obtained by issuing a request or through 
the appointment of an investigator.
    Section 3030.21 Investigator. This proposed rule allows the 
Commission to appoint an investigator to explore some or all of the 
issues raised in a complaint. This proposed rule also makes public the 
investigator's findings and report to ensure that the process remains 
open and transparent.
    Section 3030.30 Beginning proceedings on complaints. This proposed 
rule explains the various procedural paths that a complaint will take 
when the Commission makes a finding under 39 U.S.C. 3662(b)(1)(A)(i) or 
(ii). Upon making a finding under these sections, the Commission will 
either (1) issue a notice that includes setting forth the next steps in 
the proceeding, or (2) issue a final order dismissing the complaint.

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    Section 3030.40 Policy on settlement. This proposed rule is a re-
codification of 39 CFR 3001.85(b) as a separate rule. The Commission 
believes that its policy favoring settlement is important and should be 
in a separate rule to emphasize its importance and so that it can be 
found easily in the Code of Federal Regulations.
    Section 3030.41 Satisfaction. This proposed rule sets forth the 
procedural requirements that a complainant must follow in the event 
that the complaint is resolved informally (in whole or in part). The 
rule is designed to ensure that parties are free to explore settlement 
at any stage of litigating a complaint. However, once a determination 
that a complaint raises a material issue of fact or law has been made, 
the Commission believes it is prudent to evaluate whether the issues 
raised by the complaint may continue to impact a significant segment of 
the mailing community prior to closing its docket.
    Section 3030.50 Remedies. This proposed rule sets forth the 
potential statutory remedies for a complaint that the Commission finds 
to be justified. The Commission has three types of remedial authority. 
The Commission may issue an order designed to ensure that the Postal 
Service achieves compliance with the applicable requirements found to 
be violated through the complaint proceeding. The Commission also may 
issue an order to remedy the effects of non-compliance with applicable 
requirements or postal policy. Finally, in cases of deliberate non-
compliance by the Postal Service, the Commission may fine the Postal 
Service for each incidence of deliberate non-compliance. The rule 
ensures that in those circumstances where the Commission is considering 
fining the Postal Service, participants will be afforded an opportunity 
to comment, including addressing any aggravating and mitigating factors 
related to the violation prior to the Commission making a determination 
that such extraordinary relief is warranted.
    Section 3031.10 Rate or service inquiry contents. This proposed 
rule identifies the information that should be included in rate or 
service inquiries. The requirements for this proposed rule are based in 
part on the Federal Communications Commission's informal complaint 
rules, 47 CFR 1.716. The proposed rule is designed to elicit the 
information necessary for the Commission to determine how to deal 
efficiently with the inquiry so that the party's needs or concerns can 
be addressed appropriately.
    Section 3031.11 Rate or service inquiry procedures. This proposed 
rule sets forth the special procedures that the Commission will take 
when it receives a rate or service inquiry. The Commission will send 
the inquiry to the Postal Service for appropriate action, and review 
reports submitted by the Postal Service in connection with rate or 
service inquiries filed under this part.
    Section 3031.12 Treatment as a complaint. The purpose of part 3031 
is to assist individuals in resolving rate or service matters through 
informal means. This proposed rule also provides for the appointment of 
an investigator or officer to represent the general public if the 
Commission believes that a systematic pattern may be at issue. Such 
action could ultimately result in the prosecution of a complaint 
proceeding under part 3030 if such pattern or practice affects a 
substantial number of persons or region of the nation in an important 
respect.

IV. Public Representative

    Pursuant to 39 U.S.C. 505, Kenneth E. Richardson is appointed to 
serve as officer of the Commission (Public Representative) to represent 
the interests of the general public in the above-captioned docket.
    It is Ordered:
    1. Docket No. RM2008-3 is established for the purpose of receiving 
comments on the Commission's proposed rules under the Postal 
Accountability and Enhancement Act establishing procedures governing 
the disposition of complaints filed with the Commission.
    2. The Commission proposes to amend its rules of practice and 
procedure as shown below. The proposed amendments involve removing 
subpart E of part 3001 and adding new parts 3030 and 3031.
    3. Kenneth E. Richardson is designated as an officer of the 
Commission representing the interests of the general public in this 
docket.
    4. Interested persons may submit comments by October 6, 2008.
    5. Interested persons may submit reply comments by October 27, 
2008.
    6. The Secretary shall arrange for publication of this Notice in 
the Federal Register.

List of Subjects in 39 CFR Parts 3030 and 3031

    Administrative practice and procedure, Postal Service.

    Issued: August 21, 2008.

    By the Commission.
Judith M. Grady,
Acting Secretary.

    For the reasons stated in the preamble, under the authority at 39 
U.S.C. 3662, the Postal Regulatory Commission proposes to amend 39 CFR 
chapter III 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(d); 503; 3622; 3633; 3652; 3661.

Subpart E--[Removed]

    2. Remove and reserve subpart E of part 3001, consisting of 
Sec. Sec.  3001.81 through 3001.87.
    3. Add part 3030 to read as follows:

PART 3030--RULES FOR COMPLAINTS

Subpart A--General
Sec.
3030.1 Applicability.
3030.2 Scope and nature of complaints.
Subpart B--Form and Manner Requirements of Initial Pleadings
3030.10 Complaint contents.
3030.11 Service.
3030.12 Pleadings filed in response to a complaint.
3030.13 Conditions for application of rate and service inquiry 
procedures.
3030.14 Answer contents.
Subpart C--Supplemental Information
3030.20 Sufficiency of information.
3030.21 Investigator.
Subpart D--Proceedings
3030.30 Beginning proceedings on complaints.
Subpart E--Settlement
3030.40 Policy on settlement.
3030.41 Satisfaction.
Subpart F--Commission Determinations and Relief
3030.50 Remedies.

    Authority: 39 U.S.C. 503; 3662.

Subpart A--General


Sec.  3030.1  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 3001, subpart A of this chapter applies 
unless otherwise stated in this part or otherwise ordered by the 
Commission.
    (b) Sections 3001.25 through 3001.27 of this chapter do not apply 
to this part unless and until the Commission makes a finding under 
Sec.  3030.30(a)(1) that the complaint raises material issues of fact 
or law.

[[Page 51893]]

Sec.  3030.2  Scope and nature of complaints.

    Any interested person (including a duly appointed officer of the 
Commission representing the interests of the general public) may file a 
written complaint with the Commission if that person believes that the 
Postal Service is not operating in conformance with:
    (a) The provisions of 39 U.S.C. chapter 36, or 39 U.S.C. 101(d), 
401(2), 403(c), 404a, or 601; or
    (b) Any rule, order, or other regulatory requirement based on any 
of these statutory provisions.

Subpart B--Form and Manner Requirements of Initial Pleadings


Sec.  3030.10  Complaint contents.

    (a) A complaint must:
    (1) Set forth the facts and circumstances that give rise to the 
complaint;
    (2) Clearly identify and explain how the Postal Service action or 
inaction violates applicable statutory standards or regulatory 
requirements including citations to the relied upon section or sections 
of title 39, order, regulation, or other regulatory requirements;
    (3) Set forth the business, commercial, economic or other issues 
presented by the action or inaction as such relate to the complainant;
    (4) Include a description of persons or classes of persons known or 
believed to be similarly affected by the issues involved in the 
complaint, if applicable;
    (5) State the nature of the evidentiary support that the 
complainant has or expects to obtain during discovery to support the 
facts alleged in the complaint;
    (6) Include an explanation as to why such facts could not 
reasonably be ascertained by the complainant where claims are premised 
on information and belief;
    (7) State whether the issues presented are pending in or have been 
resolved by an existing Commission proceeding or a proceeding in any 
other forum in which the complainant is a party; and if so, provide an 
explanation why timely resolution cannot be achieved in that forum;
    (8) State the specific relief or remedy requested and the basis for 
that relief;
    (9) Include a certification that states that prior to filing, the 
complainant attempted to meet or confer with the Postal Service to 
resolve or settle the complaint, why the complainant believes 
additional such steps or utilizing some form of alternative dispute 
resolution would be inadequate, and the reasons for that belief; and
    (10) Include a certification that the complaint has been served on 
the United States Postal Service as required by Sec.  3030.11.
    (b) The Commission may waive any of the requirements listed in 
paragraph (a) of this section to serve the interests of justice.


Sec.  3030.11  Service.

    Any person filing a complaint must simultaneously serve a copy of 
the complaint on the Postal Service at the following address: [Postal 
Service designated e-mail to be determined in final rule]. A complaint 
is not deemed filed until it is served on the Postal Service.


Sec.  3030.12  Pleadings filed in response to a complaint.

    (a) Unless otherwise ordered by the Commission, the Postal Service 
shall file its answer to a complaint within 20 days after the complaint 
is filed.
    (b) If appropriate, the Postal Service may file a dispositive 
motion or otherwise move to delay disposition of the complaint. If the 
Postal Service files such a motion, unless otherwise ordered by the 
Commission, the period of time for filing its answer is altered as 
follows:
    (1) If the Commission denies the motion or postpones disposition, 
the answer is due within 10 days of the Commission's action; or
    (2) If the Commission invokes the rate or service inquiry special 
procedures under Sec.  3030.13 to the complaint, the answer is due 
contemporaneously with the Postal Service's report under Sec.  3031.11 
of this chapter if the complaint has not been resolved by that date.
    (c) If the Postal Service answer is delayed by the filing of a 
motion under paragraph (b) of this section, it may not obtain a further 
delay by filing another motion under paragraph (b) of this section 
raising an issue or objection that was available to the Postal Service 
but omitted from its earlier motion.


Sec.  3030.13  Conditions for application of rate or service inquiry 
procedures.

    (a) This section applies to complaints that concern rate or service 
matters that are isolated incidents affecting few mail users provided 
that the complaint does not either:
    (1) Raise unfair competition issues;
    (2) Raise issues affecting a significant number of mail users;
    (3) Represent a pattern, practice, or systemic issue that affects a 
significant number of mail users (or is reasonably likely to be the 
beginning of such a pattern); or
    (4) Impact a substantial region of the nation.
    (b) The Commission may in its discretion, sua sponte, attempt to 
resolve a complaint through the rate or service inquiry procedures of 
Sec.  3031.11 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.  3031.11 of this chapter prior to the due date for 
the Postal Service answer set forth in Sec.  3030.12.
    (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.  3030.12(b)(2).


Sec.  3030.14  Answer contents.

    (a) An answer must:
    (1) Contain a clear and concise statement of any disputed factual 
allegations upon which the answer relies;
    (2) Contain a clear and concise statement of any legal 
interpretation upon which the answer relies;
    (3) Admit or deny, specifically and with explanatory detail, each 
material factual allegation of the complaint. Denials based on 
information and belief must include an explanation as to why such facts 
could not reasonably be ascertained by the Postal Service prior to 
filing the answer;
    (4) Set forth every defense relied upon. The answer shall advise 
the complainant and the Commission fully and completely of the nature 
of any defense, including factual allegations and law upon which the 
Postal Service relies. Affirmative defenses shall be specifically 
captioned as such and presented separately from any denials;
    (5) State the nature of the evidentiary support that the Postal 
Service has or expects to obtain to support its factual allegations and 
defenses; and
    (6) Include a certification that states that prior to the filing, 
the Postal Service attempted to meet or confer with the complainant to 
resolve or settle the complaint, whether the Postal Service believes 
additional such steps or utilizing some form of alternative dispute 
resolution would be inappropriate and the reasons for that belief.
    (b) The Commission may waive any of the requirements listed in 
paragraph (a) to serve the interests of justice.

Subpart C--Supplemental Information


Sec.  3030.20  Sufficiency of information.

    If, after review of the information submitted pursuant to this 
part, the

[[Page 51894]]

Commission determines that additional information is necessary to 
enable it to evaluate whether the complaint raises material issues of 
fact or law, the Commission may, in its discretion, require the 
complainant and/or the Postal Service to provide additional information 
as deemed necessary or issue an appropriate order to appoint an 
investigator in accordance with Sec.  3030.21.


Sec.  3030.21  Investigator.

    The Commission may appoint an investigator to examine issues raised 
by the complaint and responses thereto. The investigator will use 
appropriate due diligence under the circumstances and provide a public, 
written report to the Commission.

Subpart D--Proceedings


Sec.  3030.30  Beginning proceedings on complaints.

    (a) Within 90 days after receiving a properly filed complaint under 
this part, the Commission will issue:
    (1) A notice and order in accordance with Sec.  3001.17 of this 
chapter that finds the complaint raises material issues of fact or law 
and begin proceedings on the complaint; or
    (2) An order dismissing the complaint.
    (b) Orders issued pursuant to paragraph (a) of this section shall 
include the Commission's written statement setting forth the bases of 
its determination.
    (c) Contemporaneously with, or shortly after issuing a notice and 
order under paragraph (a)(1) of this section, the Commission will 
appoint a public representative to represent the interests of the 
general public in the complaint proceeding.

Subpart E--Settlement


Sec.  3030.40  Policy on settlement.

    It shall be the general policy and practice of the Commission to 
encourage the resolution and settlement of complaints by informal 
procedures, such as correspondence, conferences between the parties, 
and the conduct of proceedings off the record with the consent of the 
parties.


Sec.  3030.41  Satisfaction.

    (a) If a complaint is resolved informally, in whole or in part, 
subsequent to Commission action under Sec.  3030.30(a)(1), the 
complainant must promptly file:
    (1) A statement explaining the resolution; and
    (2) A motion to dismiss or amend the complaint based on the 
resolution.
    (b) The Commission may order the submission of additional 
information before acting on any motion filed under paragraph (a)(2) of 
this section.

Subpart F--Commission Determinations and Relief


Sec.  3030.50  Remedies.

    (a) If the Commission finds that a complaint is justified, it will 
order that the Postal Service take such action as the Commission 
determines appropriate to:
    (1) Achieve compliance with the applicable requirements; and
    (2) Remedy the effects of any non-compliance.
    (b) If the Commission finds deliberate non-compliance on the part 
of the Postal Service, the Commission may order, based on the nature, 
circumstances, extent, and seriousness of the non-compliance, a fine 
for each incidence of non-compliance.
    (c) In any case where the Commission is considering the 
extraordinary relief described in paragraph (b) of this section, the 
Commission will provide notice to the participants that such relief is 
being considered. It will allow the participants a reasonable 
opportunity to comment and present aggravating and mitigating factors 
for its consideration.
    4. Add part 3031 to read as follows:

PART 3031--RULES FOR RATE OR SERVICE INQUIRIES

Subpart A--Rate or Service Inquiry Forms and Procedures
Sec.
3031.10 Rate or service inquiry contents.
3031.11 Rate or service inquiry procedures.
3031.12 Treatment as a complaint.
Subpart B--[Reserved]

    Authority: 39 U.S.C. 503; 3662.

Subpart A--Rate or Service Inquiry Forms and Procedures


Sec.  3031.10  Rate or service inquiry contents.

    (a) A rate or service inquiry shall be in writing and should 
contain:
    (1) The name, address, and telephone number of the inquiring party;
    (2) Details regarding the Postal Service's action or inaction;
    (3) A statement of facts supporting the inquiring party's 
allegations; and
    (4) The specific relief being sought, if any.
    (b) The Commission may waive any of the requirements listed in 
paragraph (a) of this section to serve the interests of justice.


Sec.  3031.11  Rate or service inquiry procedures.

    (a) The Commission will forward rate or service inquiries to the 
Postal Service for investigation. The Postal Service will, within 45 
days of receipt of such inquiry, advise the Commission in writing, with 
a copy to the inquiring party, of its resolution of the inquiry or its 
refusal or inability to do so.
    (b) The Commission will monitor all rate or service inquiries to 
determine if Commission action under Sec.  3031.12 is appropriate.
    (c) Where there are clear indications from the Postal Service's 
report or from other communications between the parties that the 
inquiry has been resolved, the Commission may, in its discretion, 
consider such proceeding to be resolved, without response to the 
inquiring party.


Sec.  3031.12  Treatment as a complaint.

    If the Commission receives a sufficient volume of rate or service 
inquiries on the same or similar issue such that there may be 
sufficient cause to warrant treatment as a complaint, it may appoint an 
investigator to review the matter under Sec.  3030.21 of this chapter 
or appoint a public representative representing the interests of the 
general public to pursue the matter.

Subpart B--[Reserved]

[FR Doc. E8-20581 Filed 9-4-08; 8:45 am]
BILLING CODE 7710-FW-P