Rules of Practice in Proceedings Relative to Mailing Hazardous Materials, 5137-5141 [E9-1864]
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Federal Register / Vol. 74, No. 18 / Thursday, January 29, 2009 / Proposed Rules
a. 5-digit, required, 50 piece
minimum; one less-than-full or overflow
tray allowed; labeling:
1. Line 1: Use city, state, and 5-digit
ZIP Code destination (see 335.4.3 for
military mail).
2. Line 2: ‘‘FCM FLTS 5D BC/NBC.’’
b. 3-digit, required, 50 piece
minimum; one less-than-full or overflow
tray allowed; labeling:
1. Line 1: Use L002, Column A.
2. Line 2: ‘‘FCM FLTS 3D BC/NBC.’’
c. Origin/entry 3-digit, required for
each 3-digit ZIP Code served by the SCF
of the origin (verification) office,
optional for each 3-digit ZIP Code
served by the SCF of an entry office
other than the origin office, no
minimum; labeling:
1. Line 1: Use L002, Column A.
2. Line 2: ‘‘FCM FLTS 3D BC/NBC.’’
d. ADC, required, 50 piece minimum;
one less-than-full or overflow tray
allowed; use L004 to determine ZIP
Codes served by each ADC; labeling:
1. Line 1: Use L004, Column B.
2. Line 2: ‘‘FCM FLTS ADC BC/NBC.’’
e. Mixed ADC, required, no minimum;
labeling:
1. Line 1: Use L201; for mail
originating in ZIP Code areas in Column
A, use ‘‘MXD’’ followed by the city,
state, and 3-digit ZIP Code prefix in the
corresponding row in Column C (use
‘‘MXD’’ instead of ‘‘OMX’’ in the
destination line and ignore Column B).
2. Line 2: ‘‘FCM FLTS BC/NBC
WKG.’’
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[Revise heading of 11.0 as follows:]
11.0 Combining Automation and
Nonautomation Flats in Bundles
[Delete 11.1 and renumber current
11.2 through 11.4 as new 11.1 through
11.3.]
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We will publish an appropriate
amendment to 39 CFR Part 111 to reflect
these changes if our proposal is
adopted.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. E9–1862 Filed 1–28–09; 8:45 am]
BILLING CODE 7710–12–P
POSTAL SERVICE
rmajette on PRODPC74 with PROPOSALS
39 CFR Part 958
Rules of Practice in Proceedings
Relative to Mailing Hazardous
Materials
Service to prescribe regulations for the
safe transportation of hazardous
materials in the mail, and to prescribe
regulations for the conduct of
proceedings to determine the
implementation of civil penalties, cleanup costs and damages for violations of
these hazardous materials regulations.
Accordingly, the Postal Service
proposes to adopt new rules of practice
for its Office of the Judicial Officer.
DATES: Comments must be received on
or before March 2, 2009.
ADDRESSES: Judicial Officer Department,
United States Postal Service, 2101
Wilson Boulevard, Suite 600, Arlington,
VA 22201–3078.
FOR FURTHER INFORMATION CONTACT:
Administrative Judge Gary E. Shapiro,
(703) 812–1910.
SUPPLEMENTARY INFORMATION: The Postal
Accountability and Enhancement Act
(Pub. L. 109–435, 120 Stat. 3198
(December 20, 2006)) inserted section
3018 into title 39, United States Code.
Section 3018(a) requires the Postal
Service ‘‘to prescribe regulations for the
safe transportation of hazardous
material in the mail.’’ Section 3018(c)
requires the Postal Service to implement
procedures for the imposition of civil
penalties, clean-up costs and damages
for violations of these hazardous
materials regulations. Section 3018(d)
provides that the Postal Service may
determine that a person has violated
these regulations only after notice and
an opportunity for a hearing in
accordance with section 3001(m) of title
39, United States Code.
Accordingly, the Postal Service is
proposing to adopt implementing
regulations as new 39 CFR part 958,
which would designate the Chief Postal
Inspector as the Postal Service’s
Determining Official for purposes of
these rules. Any hearing would be
presided over by an Administrative Law
Judge designated by the Postal Service
Judicial Officer. Administrative appeals
of a Presiding Officer’s decision would
be determined by the Judicial Officer.
Although exempt from the notice and
comment requirements of the
Administrative Procedure Act (5 U.S.C.
553(b), (c)) regarding proposed
rulemaking by 39 U.S.C. 410(a), the
Postal Service invites public comment
on the following rules proposed to be
codified at title 39, Code of Federal
Regulations, part 958.
List of Subjects in 39 CFR Part 958
Postal Service.
ACTION: Proposed rule.
AGENCY:
Administrative practice and
procedure, Penalties, Postal Service.
For the reasons stated in the
SUMMARY: The Postal Accountability and
preamble, the Postal Service proposes to
Enhancement Act requires the Postal
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amend 39 CFR part 958 as set forth
below:
1. Part 958 is added to read as follows:
PART 958—RULES OF PRACTICE IN
PROCEEDINGS RELATIVE TO CIVIL
PENALTIES, CLEAN-UP COSTS AND
DAMAGES FOR VIOLATION OF
HAZARDOUS MATERIAL
REGULATIONS
Sec.
958.1 Purpose.
958.2 Definitions.
958.3 Petition for hearing.
958.4 Referral of complaint.
958.5 Scope of hearing; evidentiary
standard.
958.6 Notice of docketing and hearing.
958.7 Hearing location.
958.8 Rights of parties.
958.9 Responsibilities and authority of
presiding officer.
958.10 Prehearing conferences.
958.11 Respondent access to information.
958.12 Depositions; interrogatories;
admission of facts; production and
inspection of documents.
958.13 Sanctions.
958.14 Ex parte communications.
958.15 Post-hearing briefs.
958.16 Transcript of proceedings.
958.17 Initial decision.
958.18 Appeal of initial decision to Judicial
Officer.
958.19 Form and filing of documents.
958.20 Service of notice of docketing and
hearing, other documents.
958.21 Computation of time.
958.22 Continuances and extensions.
958.23 Settlement.
Authority: 39 U.S.C. 204; 39 U.S.C. 401; 39
U.S.C. 3001; 39 U.S.C. 3018.
§ 958.1
Purpose.
This part establishes the procedures
governing the hearing and appeal rights
of any person alleged to be liable for
civil penalties, clean-up costs and/or
damages for mailing hazardous
materials and/or related violations
under 39 U.S.C. 3018.
§ 958.2
Definitions.
(a) Complaint refers to the
determination by the Determining
Official that an individual has violated
the prohibition against mailing
hazardous materials and/or related
violations under 39 U.S.C. 3018.
(b) Initial Decision refers to the
written decision which the Presiding
Officer renders.
(c) Determining Official refers to the
Chief Postal Inspector or designee.
(d) Judicial Officer refers to the
Judicial Officer or Acting Judicial
Officer of the United States Postal
Service or designee within the Judicial
Officer Department.
(e) Party refers to the Postal Service or
the respondent.
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(f) Person refers to any individual,
partnership, corporation, association, or
private organization.
(g) Presiding Officer refers to an
Administrative Law Judge designated by
the Judicial Officer to conduct a hearing.
(h) Recorder refers to the Recorder of
the Judicial Office of the United States
Postal Service, 2101 Wilson Boulevard,
Suite 600, Arlington, Virginia 22201–
3078.
(i) Representative refers to an attorney
or other advocate.
(j) Respondent refers to any person
determined by the Determining Official
to be liable for civil penalties, clean-up
costs and/or damages for mailing
hazardous materials and/or related
violations under 39 U.S.C. 3018.
§ 958.3
Petition for hearing.
Within 30 days of being served the
Postal Service’s Complaint alleging
liability under 39 U.S.C. 3018, the
respondent may request a hearing by
filing a written Hearing Petition with
the Recorder. The respondent’s Petition
must include the following:
(a) The words ‘‘Petition for Hearing
Related to Prohibitions Regarding the
Mailing of Hazardous Material’’ or other
words reasonably identifying it as such;
(b) The name of the respondent as
well as his or her work and home
addresses, and work and home
telephone numbers; and other address
and telephone number where the
respondent may be contacted about the
hearing proceedings;
(c) The date on which the respondent
received the Complaint issued by the
Determining Official;
(d) A statement indicating whether
the respondent requests an oral hearing
or a decision solely on the written
record;
(e) If the respondent requests an oral
hearing, a statement proposing a city for
the hearing site, with justification for
holding the hearing in that city, as well
as recommended dates for the hearing;
and
(f) A statement admitting or denying
each of the allegations of liability made
in the Complaint, and stating any
defense on which the respondent
intends to rely.
rmajette on PRODPC74 with PROPOSALS
§ 958.4
Referral of complaint.
(a) If the respondent fails to request a
hearing within the specified period, the
Determining Official shall transmit the
Complaint to the Judicial Officer for
referral to a Presiding Officer, who shall
issue an Initial Decision based upon the
information contained in the Complaint.
(b) If the respondent files a Hearing
Petition, the Determining Official, upon
receiving a copy of the Petition, shall
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promptly transmit to the Presiding
Officer a copy of the Postal Service’s
Complaint.
§ 958.5 Scope of hearing; evidentiary
standard.
(a) A hearing under this part shall be
conducted by the Presiding Officer on
the record (1) to determine whether the
respondent is liable under 39 U.S.C.
3018, and (2) if so, to determine the
amount of any civil penalties, clean-up
costs and/or damages to be imposed.
(b) The Postal Service must prove its
case against a respondent by a
preponderance of the evidence.
(c) The parties may offer for insertion
onto the record such relevant evidence
as they deem appropriate and as would
be admissible under the generally
accepted rules of evidence applied in
the courts of the United States in
nonjury trials, subject, however, to the
sound discretion of the Presiding Officer
in supervising the extent and manner of
presentation of such evidence. In
general, admissibility will hinge on
relevancy and materiality. However,
relevant evidence may be excluded if its
probative value is substantially
outweighed by the danger of unfair
prejudice, or by considerations of undue
delay, waste of time, or needless
presentation of cumulative evidence.
§ 958.6
Notice of docketing and hearing.
(a) Within a reasonable time after
receiving the respondent’s Hearing
Petition and the Complaint, the
Presiding Officer shall serve upon the
respondent and the Determining
Official, a Notice of Docketing and
Hearing.
(b) The Notice of Docketing and
Hearing required by paragraph (a) of this
section may include:
(1) The tentative site, date, and time
of the oral hearing, if one is requested;
(2) The legal authority and
jurisdiction under which the hearing is
to be held;
(3) The nature of the hearing;
(4) The matters of fact and law to be
decided;
(5) A description of the procedures
governing the conduct of the hearing;
and
(6) Such other information as the
Presiding Officer deems appropriate.
§ 958.7
Hearing location.
An oral hearing under this part shall
be held:
(a) In the judicial district of the
United States in which the respondent
resides or transacts business;
(b) In the judicial district of the
United States in which the incident or
incidents occurred upon which the
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determination of liability under 39
U.S.C. 3018 was made by the
Determining Official; or
(c) In such other place as may be
determined by the Presiding Officer.
§ 958.8
Rights of parties.
Subject to the sound discretion of the
Presiding Officer, acting under § 958.9,
parties to a hearing under this part shall
have the right:
(a) To be accompanied, represented,
and advised, by an attorney or
representative of his or her own
choosing;
(b) To participate in any conferences
held by the Presiding Officer;
(c) To agree to stipulations of fact or
law, which shall be made part of the
record;
(d) To make opening and closing
statements at the oral hearing;
(e) To present oral and documentary
evidence relevant to the issues;
(f) To submit rebuttal evidence;
(g) To conduct such crossexamination as may be required for a
full and true disclosure of the facts; and
(h) To submit written briefs, proposed
findings of fact, and proposed
conclusions of law.
§ 958.9 Responsibilities and authority of
presiding officer.
(a) The Presiding Officer shall
conduct a fair and impartial hearing,
avoid unnecessary delay, maintain
order, and assure that a record of the
proceeding is made.
(b) The Presiding Officer’s authority
includes, but is not limited to, the
following:
(1) Establishing, upon adequate notice
to all parties, the date and time of the
oral hearing, if any, as well as, in
accordance with § 958.7, selecting the
hearing site;
(2) Holding conferences, by telephone
or in person, to identify or simplify the
issues, or to consider other matters that
may aid in the expeditious resolution of
the proceeding;
(3) Continuing or recessing the
hearing in whole or in part for a
reasonable period of time;
(4) Administering oaths and
affirmations to witnesses;
(5) Ruling on all offers, motions,
requests by the parties, and other
procedural matters;
(6) Issuing any notices, orders, or
memoranda to the parties concerning
the proceedings;
(7) Regulating the scope and timing of
discovery;
(8) Regulating the course of the
hearing and the conduct of the parties
and their representatives;
(9) Examining witnesses;
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(10) Receiving, ruling on, excluding,
or limiting evidence in order to assure
that relevant, reliable and probative
evidence is elicited on the issues in
dispute, but irrelevant, immaterial or
repetitious evidence is excluded;
(11) Deciding cases, upon motion of a
party, in whole or in part by summary
judgment where there is no disputed
issue of material fact;
(12) Establishing the record in the
case; and
(13) Issuing a written Initial Decision
containing findings of fact, conclusions
of law, and determinations with respect
to whether civil penalties, clean-up
costs and/or damages for mailing
hazardous materials and/or related
violations under 39 U.S.C. 3018 should
be imposed, and if so, the amounts
thereof, after taking into account the
penalty considerations contained in 39
U.S.C. 3018(e).
§ 958.10
Prehearing conferences.
(a) At a reasonable time after issuing
the Notice of Docketing and Hearing,
and with adequate notice to the parties,
the Presiding Officer may conduct, in
person or by telephone, one or more
prehearing conferences to discuss the
following:
(1) Simplification of the issues;
(2) The necessity or desirability of
amendments to the pleadings, including
the need for a more definite statement;
(3) Stipulations or admissions of fact
or as to the contents and authenticity of
documents;
(4) Limitation of the number of
witnesses;
(5) Exchange of witness lists, copies of
prior statements of witnesses, and
copies of hearing exhibits;
(6) Scheduling dates for the exchange
of witness lists and of proposed
exhibits;
(7) Discovery;
(8) Possible changes in the scheduled
oral hearing date, time or site, if
requested; and
(9) Any other matters related to the
proceeding.
(b) Within a reasonable time after the
completion of a prehearing conference,
the Presiding Officer shall issue an
order detailing all matters agreed upon
by the parties, or ordered by the
Presiding Officer, at such conference.
rmajette on PRODPC74 with PROPOSALS
§ 958.11 Respondent’s access to
information.
Except as provided in this paragraph,
after receiving the Notice of Docketing
and Hearing the respondent may review
and obtain a copy of all relevant and
material documents, transcripts,
records, and other materials which
relate to the determination of liability by
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the Determining Official under 39
U.S.C. 3018, and all exculpatory
information in the possession of the
Determining Official relating to liability
for civil penalties, clean-up costs and/or
damages for mailing hazardous
materials and/or related violations
under 39 U.S.C. 3018. The respondent is
not entitled to review or obtain a copy
of any document, transcript, record, or
other material which is privileged under
Federal law. The Presiding Officer is
authorized to issue orders placing
limitations on the scope, method, time
and place for accessing this information,
and provisions for protecting the
secrecy of confidential information or
documents.
§ 958.12 Depositions; interrogatories;
admission of facts; production and
inspection of documents.
(a) General policy and protective
orders. The parties are encouraged to
engage in voluntary discovery
procedures. In connection with any
discovery procedure permitted under
this part, the Presiding Officer may
issue any order which justice requires to
protect a party or person from
annoyance, embarrassment, oppression,
or undue burden or expense. Such
orders may include limitations on the
scope, method, time and place for
discovery, and provisions for protecting
the secrecy of confidential information
or documents. Each party shall bear its
own expenses relating to discovery.
(b) Depositions. After the issuance of
a Notice of Docketing and Hearing, the
parties may mutually agree to, or the
Presiding Officer may, upon application
of either party and for good cause
shown, order the taking of testimony of
any person by deposition upon oral
examination or written interrogatories
before any officer authorized to
administer oaths at the place of
examination, for use as evidence or for
purposes of discovery. The application
for an order of the Presiding Officer
under this paragraph shall specify
whether the purpose of the deposition is
discovery or for use as evidence.
(1) The time, place, and manner of
taking depositions shall be as mutually
agreed by the parties, or failing such
agreement, governed by order of the
Presiding Officer.
(2) No testimony taken by depositions
shall be considered as part of the record
in the hearing unless and until such
testimony is offered and received into
evidence by order of the Presiding
Officer. Deposition testimony will not
ordinarily be received in evidence if an
oral hearing is requested by either party,
and the deponent is available to testify
personally at the hearing. In such
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instances, however, deposition
testimony may be used to contradict or
impeach the testimony of the witness
given at the hearing. In cases submitted
for a decision on a written record, the
Presiding Officer may, in his or her
discretion, receive deposition testimony
as evidence in supplementation of that
record.
(c) Interrogatories to parties. After the
issuance of a Notice of Docketing and
Hearing, a party may serve on the other
party written interrogatories. Within 30
days after service, the party served shall
answer each interrogatory separately in
writing, signed under oath, or file
objections thereto. Upon timely
objection by the party, the Presiding
Officer will determine the extent to
which the interrogatories will be
permitted.
(d) Admission of facts. After the
issuance of a Notice of Docketing and
Hearing, a party may serve upon the
other party a request for the admission
of specified facts. Within 30 days after
service, the party served shall answer
each requested fact or file objections
thereto. Upon timely objection by the
party, the Presiding Officer will
determine the extent to which the
request for admission will be permitted.
The factual propositions set out in the
request shall be deemed admitted upon
the failure of a party to respond to the
request for admission.
(e) Production and inspection of
documents. Upon motion of a party
showing good cause therefor, and upon
notice, the Presiding Officer may order
the other party to produce and permit
the inspection and copying or
photographing of any designated
documents or objects, not privileged,
specifically identified, and their
relevance and materiality to the cause or
causes in issue explained, which are
reasonably calculated to lead to the
discovery or admissible evidence. If the
parties cannot themselves agree thereon,
the Presiding Officer shall specify just
terms and conditions in making the
inspection and taking the copies and
photographs.
(f) Limitations. A discovery procedure
may not be used to reach documents,
transcripts, records, or other material
which a person is not entitled to review
pursuant to § 958.11.
§ 958.13
Sanctions.
(a) In general. The Presiding Officer
may sanction a person, including any
party, attorney or representative, for:
(1) Failing to comply with a lawful
order or prescribed procedure;
(2) Failing to prosecute or defend an
action; or
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(3) Engaging in other misconduct that
interferes with the speedy, orderly, or
fair conduct of the hearing.
(b) Reasonableness. Any such
sanction, including but not limited to
those listed in paragraphs (c), (d), and
(e) of this section, shall reasonably
relate to the severity and nature of the
failure or misconduct.
(c) Failure to comply with an order.
When a party fails to comply with an
order, including an order for taking a
deposition, the production of evidence
within the party’s control, or a request
for admission, the Presiding Officer
may:
(1) Draw an inference in favor of the
requesting party with regard to the
information sought;
(2) Prohibit such party from
introducing evidence concerning, or
otherwise relying upon, testimony
relating to the information sought;
(3) Permit the requesting party to
introduce secondary evidence
concerning the information sought; and
(4) Strike any part of the pleadings or
other submissions of the party failing to
comply with such request.
(d) Failure to prosecute or defend. If
a party fails to prosecute or defend an
action under this part, the Presiding
Officer may dismiss the action, or enter
an order of default and an Initial
Decision.
(e) Failure to file timely. The
Presiding Officer may refuse to consider
any motion or other pleading, report, or
response which is not filed in a timely
fashion.
§ 958.14
Ex parte communications.
Communications between a Presiding
Officer and a party shall not be made on
any matter in issue unless on notice and
opportunity for all parties to participate.
This prohibition does not apply to
procedural matters. A memorandum of
any communication between the
Presiding Officer and a party shall be
transmitted by the Presiding Officer to
all parties.
§ 958.15
Post-hearing briefs.
Post-hearing briefs and reply briefs
may be submitted upon such terms as
established by the Presiding Officer at
the conclusion of the hearing.
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§ 958.16
Transcript of proceedings.
Testimony and argument at oral
hearings shall be reported verbatim,
unless the Presiding Officer orders
otherwise. Transcripts or copies of the
proceedings may be obtained by the
parties at such rates as may be fixed by
contract between the reporter and the
Postal Service.
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§ 958.17
Initial decision.
(a) After the conclusion of the
hearing, and the receipt of briefs, if any,
from the parties, the Presiding Officer
shall issue a written Initial Decision,
including his or her findings and
determinations. Such decision shall
include the findings of fact and
conclusions of law which the Presiding
Officer relies upon in determining
whether the respondent is liable for
civil penalties, clean-up costs and/or
damages for mailing hazardous
materials and/or related violations
under 39 U.S.C. 3018, and, if liability is
found, shall set forth the amount of any
civil penalties, clean-up costs and/or
damages imposed.
(b) The Presiding Officer shall
promptly send to each party a copy of
his or her Initial Decision. A party may,
in accordance with § 958.18, appeal an
adverse Initial Decision to the Judicial
Officer. Unless a party timely appeals in
accordance with § 958.18, the Presiding
Officer’s Initial Decision, including the
findings and determinations, becomes
the final agency decision.
§ 958.18 Appeal of initial decision to
Judicial Officer.
(a) Notice of appeal and supporting
brief. A party may appeal an adverse
Initial Decision by filing, within 30 days
after the Presiding Officer issues the
Initial Decision, a Notice of Appeal with
the Recorder. The Judicial Officer may
extend the filing period but only if the
party files a request for an extension
within the initial 30-day period and
demonstrates good cause for such
extension.
(1) The Notice of Appeal must be
accompanied by a written brief
specifying the party’s exceptions, and
any reasons for such exceptions, to the
Presiding Officer’s Initial Decision.
(2) Within 30 days of receiving the
party’s brief, the opposing party may file
with the Judicial Officer a response to
the specified exceptions to the Presiding
Officer’s Initial Decision.
(b) Form of review. Review by the
Judicial Officer will be based entirely on
the record and written submissions.
(1) The Judicial Officer may affirm,
reduce, reverse, or remand any
determination about a penalty or
assessment by the Presiding Officer.
(2) The Judicial Officer shall not
consider any argument or objection that
was not raised in the hearing unless the
interested party demonstrates that the
failure to raise the argument or objection
before the Presiding Officer was caused
by extraordinary circumstances.
(3) If any party demonstrates to the
satisfaction of the Judicial Officer that
additional evidence not presented at the
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hearing is material and that there were
reasonable grounds for the failure to
present such evidence, the Judicial
Officer may remand the matter to the
Presiding Officer for consideration of
such additional evidence.
(c) Decision of Judicial Officer. The
Judicial Officer shall promptly serve
each party to the appeal with a copy of
his or her decision. The decision of the
Judicial Officer constitutes final agency
action and becomes final and binding
on the parties.
§ 958.19
Form and filing of documents.
(a) Every pleading filed in a
proceeding under this part must contain
a caption setting forth the title of the
action, the docket number (after
assignment by the Recorder), an
accurate designation of the document,
and the name, address, and telephone
number of the party on whose behalf the
paper was filed. It shall also be signed
by the party or party representative
submitting the document.
(b) The original and three copies of all
pleadings and documents in a
proceeding conducted under this part
shall be filed with the Recorder, Judicial
Officer Department, United States Postal
Service, 2101 Wilson Boulevard, Suite
600, Arlington, Virginia 22201–3078.
Normal Recorder business hours are
between 8:15 a.m. and 4:45 p.m., eastern
standard or daylight saving time. The
Recorder will transmit a copy of each
document filed to the other party, and
the original to the Presiding Officer.
(c) Pleadings or other document
transmittals to, or communications
with, the Postal Service, other than to
the Recorder under paragraph (a) of this
section, shall be made through the
Determining Official or designated
Postal Service attorney. If a notice of
appearance by a representative is filed
on behalf of the respondent, pleadings
or document transmittals to, or
communications with, the respondent
shall be made through his or her
representative.
§ 958.20 Service of notice of docketing
and hearing, other documents.
Unless otherwise specified, service of
a Notice of Docketing and Hearing or
any other document under this part
shall be effected by registered or
certified mail, return receipt requested,
or by personal delivery. In the case of
personal service, the person making
service shall, if possible, secure from the
party or other person sought to be
served, or his or her agent, a written
acknowledgement of receipt, showing
the date and time of such receipt. If the
person upon whom service is made
declines to acknowledge receipt, the
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person effecting service shall execute a
statement, indicating the time, place
and manner of service, which shall
constitute evidence of service.
DEPARTMENT OF COMMERCE
§ 958.21
50 CFR Part 226
Computation of time.
In computing any period of time
provided for by this part, or any order
issued pursuant to this part, the time
begins with the day following the act,
event, or default, and includes the last
day of the period, unless it is a
Saturday, Sunday, or legal holiday
observed by the Federal Government, in
which event it includes the next
business day. Except as otherwise
provided in these rules or an applicable
order, prescribed periods of time are
measured in calendar days rather than
business days.
§ 958.22
Continuances and extensions.
Continuances and extensions may be
granted under these rules for good cause
shown.
§ 958.23
Settlement.
Either party may make offers of
settlement or proposals of adjustment at
any time. The Determining Official has
the exclusive authority to compromise
or settle any determinations of liability
for civil penalties, clean-up costs and/or
damages for mailing hazardous
materials and/or related violations
under 39 U.S.C. 3018, without the
consent of the Presiding Officer or
Judicial Officer.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. E9–1864 Filed 1–28–09; 8:45 am]
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National Oceanic and Atmospheric
Administration
RIN 0648–AV74
Endangered and Threatened Species;
Critical Habitat for the Endangered
Distinct Population Segment of
Smalltooth Sawfish
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; reopening of
public comment period.
SUMMARY: On November 20, 2008,
NMFS proposed to designate critical
habitat for the endangered U.S. distinct
population segment (DPS) of smalltooth
sawfish. As part of that proposal, NMFS
provided a 60–day public comment
period, ending on January 20, 2009.
Additionally, NMFS held two public
hearings in Cape Coral and Naples, FL
in January 2009. NMFS has received
requests for an extension of the public
comment period. In response to these
requests, NMFS is reopening the public
comment period for the proposed
action.
DATES: Written comments on this
proposed rule must be received by 5
p.m. EST on February 13, 2009.
Comments received between the close of
the first comment period on January 20,
2009, and the reopening of the comment
period on January 29, 2009 will be
considered.
You may submit comments,
identified by the Regulatory Information
Number (RIN) 0648–AV74, by any of the
following methods:
Mail: Assistant Regional
Administrator, Protected Resources
Division, NMFS, Southeast Regional
Office, 263 13th Avenue South, St.
Petersburg, FL 33701.
Facsimile (fax) to: 727–824–5309
Attention Shelley Norton.
Electronic Submissions: Submit all
electronic comments to
www.regulations.gov by clicking on
ADDRESSES:
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
5141
‘‘Search for Dockets’’ at the top of the
screen, then entering the RIN in the
‘‘RIN’’ field and clicking the ‘‘Submit’’
tab.
Instructions: All comments received
are considered part of the public record
and will generally be posted to https://
www.regulations.gov. All Personal
Identifying Information (i.e., name,
address, etc.) voluntarily submitted may
be publicly accessible. Do not submit
Confidential Business Information or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments. Please provide
electronic attachments using Microsoft
Word, Excel, WordPerfect, or Adobe
PDF file formats only.
FOR FURTHER INFORMATION CONTACT:
Shelley Norton, NMFS, Southeast
Regional Office, at 727–824–5312; or
Lisa Manning, NMFS, Office of
Protected Resources, at 301–713–1401.
SUPPLEMENTARY INFORMATION:
Background
On November 20, 2008, we published
a proposed rule (73 FR 70290) to
designate critical habitat for the
endangered U.S. DPS of smalltooth
sawfish. We held two public hearings
on the proposed designation, one in
Naples, FL on January 5, 2009, and one
in Cape Coral, FL on January 14, 2009.
Several requests have been received to
reopen the public comment period for
the proposed listing. The public
comment period for the proposed listing
closed on January 20, 2009. NMFS is
reopening the public comment period
until February 13, 2009, to receive
additional local and public information
and comments that may be relevant to
our consideration of this rulemaking.
Public comments received between the
close of the first comment period on
January 20, 2009, and the reopening of
the comment period January 29, 2009
will also be considered timely.
Authority: 16 U.S.C. 1531 et seq.
Dated: January 23, 2009.
James H. Lecky,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. E9–1956 Filed 1–28–09; 8:45 am]
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[Federal Register Volume 74, Number 18 (Thursday, January 29, 2009)]
[Proposed Rules]
[Pages 5137-5141]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1864]
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POSTAL SERVICE
39 CFR Part 958
Rules of Practice in Proceedings Relative to Mailing Hazardous
Materials
AGENCY: Postal Service.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Postal Accountability and Enhancement Act requires the
Postal Service to prescribe regulations for the safe transportation of
hazardous materials in the mail, and to prescribe regulations for the
conduct of proceedings to determine the implementation of civil
penalties, clean-up costs and damages for violations of these hazardous
materials regulations. Accordingly, the Postal Service proposes to
adopt new rules of practice for its Office of the Judicial Officer.
DATES: Comments must be received on or before March 2, 2009.
ADDRESSES: Judicial Officer Department, United States Postal Service,
2101 Wilson Boulevard, Suite 600, Arlington, VA 22201-3078.
FOR FURTHER INFORMATION CONTACT: Administrative Judge Gary E. Shapiro,
(703) 812-1910.
SUPPLEMENTARY INFORMATION: The Postal Accountability and Enhancement
Act (Pub. L. 109-435, 120 Stat. 3198 (December 20, 2006)) inserted
section 3018 into title 39, United States Code. Section 3018(a)
requires the Postal Service ``to prescribe regulations for the safe
transportation of hazardous material in the mail.'' Section 3018(c)
requires the Postal Service to implement procedures for the imposition
of civil penalties, clean-up costs and damages for violations of these
hazardous materials regulations. Section 3018(d) provides that the
Postal Service may determine that a person has violated these
regulations only after notice and an opportunity for a hearing in
accordance with section 3001(m) of title 39, United States Code.
Accordingly, the Postal Service is proposing to adopt implementing
regulations as new 39 CFR part 958, which would designate the Chief
Postal Inspector as the Postal Service's Determining Official for
purposes of these rules. Any hearing would be presided over by an
Administrative Law Judge designated by the Postal Service Judicial
Officer. Administrative appeals of a Presiding Officer's decision would
be determined by the Judicial Officer.
Although exempt from the notice and comment requirements of the
Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed
rulemaking by 39 U.S.C. 410(a), the Postal Service invites public
comment on the following rules proposed to be codified at title 39,
Code of Federal Regulations, part 958.
List of Subjects in 39 CFR Part 958
Administrative practice and procedure, Penalties, Postal Service.
For the reasons stated in the preamble, the Postal Service proposes
to amend 39 CFR part 958 as set forth below:
1. Part 958 is added to read as follows:
PART 958--RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO CIVIL
PENALTIES, CLEAN-UP COSTS AND DAMAGES FOR VIOLATION OF HAZARDOUS
MATERIAL REGULATIONS
Sec.
958.1 Purpose.
958.2 Definitions.
958.3 Petition for hearing.
958.4 Referral of complaint.
958.5 Scope of hearing; evidentiary standard.
958.6 Notice of docketing and hearing.
958.7 Hearing location.
958.8 Rights of parties.
958.9 Responsibilities and authority of presiding officer.
958.10 Prehearing conferences.
958.11 Respondent access to information.
958.12 Depositions; interrogatories; admission of facts; production
and inspection of documents.
958.13 Sanctions.
958.14 Ex parte communications.
958.15 Post-hearing briefs.
958.16 Transcript of proceedings.
958.17 Initial decision.
958.18 Appeal of initial decision to Judicial Officer.
958.19 Form and filing of documents.
958.20 Service of notice of docketing and hearing, other documents.
958.21 Computation of time.
958.22 Continuances and extensions.
958.23 Settlement.
Authority: 39 U.S.C. 204; 39 U.S.C. 401; 39 U.S.C. 3001; 39
U.S.C. 3018.
Sec. 958.1 Purpose.
This part establishes the procedures governing the hearing and
appeal rights of any person alleged to be liable for civil penalties,
clean-up costs and/or damages for mailing hazardous materials and/or
related violations under 39 U.S.C. 3018.
Sec. 958.2 Definitions.
(a) Complaint refers to the determination by the Determining
Official that an individual has violated the prohibition against
mailing hazardous materials and/or related violations under 39 U.S.C.
3018.
(b) Initial Decision refers to the written decision which the
Presiding Officer renders.
(c) Determining Official refers to the Chief Postal Inspector or
designee.
(d) Judicial Officer refers to the Judicial Officer or Acting
Judicial Officer of the United States Postal Service or designee within
the Judicial Officer Department.
(e) Party refers to the Postal Service or the respondent.
[[Page 5138]]
(f) Person refers to any individual, partnership, corporation,
association, or private organization.
(g) Presiding Officer refers to an Administrative Law Judge
designated by the Judicial Officer to conduct a hearing.
(h) Recorder refers to the Recorder of the Judicial Office of the
United States Postal Service, 2101 Wilson Boulevard, Suite 600,
Arlington, Virginia 22201-3078.
(i) Representative refers to an attorney or other advocate.
(j) Respondent refers to any person determined by the Determining
Official to be liable for civil penalties, clean-up costs and/or
damages for mailing hazardous materials and/or related violations under
39 U.S.C. 3018.
Sec. 958.3 Petition for hearing.
Within 30 days of being served the Postal Service's Complaint
alleging liability under 39 U.S.C. 3018, the respondent may request a
hearing by filing a written Hearing Petition with the Recorder. The
respondent's Petition must include the following:
(a) The words ``Petition for Hearing Related to Prohibitions
Regarding the Mailing of Hazardous Material'' or other words reasonably
identifying it as such;
(b) The name of the respondent as well as his or her work and home
addresses, and work and home telephone numbers; and other address and
telephone number where the respondent may be contacted about the
hearing proceedings;
(c) The date on which the respondent received the Complaint issued
by the Determining Official;
(d) A statement indicating whether the respondent requests an oral
hearing or a decision solely on the written record;
(e) If the respondent requests an oral hearing, a statement
proposing a city for the hearing site, with justification for holding
the hearing in that city, as well as recommended dates for the hearing;
and
(f) A statement admitting or denying each of the allegations of
liability made in the Complaint, and stating any defense on which the
respondent intends to rely.
Sec. 958.4 Referral of complaint.
(a) If the respondent fails to request a hearing within the
specified period, the Determining Official shall transmit the Complaint
to the Judicial Officer for referral to a Presiding Officer, who shall
issue an Initial Decision based upon the information contained in the
Complaint.
(b) If the respondent files a Hearing Petition, the Determining
Official, upon receiving a copy of the Petition, shall promptly
transmit to the Presiding Officer a copy of the Postal Service's
Complaint.
Sec. 958.5 Scope of hearing; evidentiary standard.
(a) A hearing under this part shall be conducted by the Presiding
Officer on the record (1) to determine whether the respondent is liable
under 39 U.S.C. 3018, and (2) if so, to determine the amount of any
civil penalties, clean-up costs and/or damages to be imposed.
(b) The Postal Service must prove its case against a respondent by
a preponderance of the evidence.
(c) The parties may offer for insertion onto the record such
relevant evidence as they deem appropriate and as would be admissible
under the generally accepted rules of evidence applied in the courts of
the United States in nonjury trials, subject, however, to the sound
discretion of the Presiding Officer in supervising the extent and
manner of presentation of such evidence. In general, admissibility will
hinge on relevancy and materiality. However, relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.
Sec. 958.6 Notice of docketing and hearing.
(a) Within a reasonable time after receiving the respondent's
Hearing Petition and the Complaint, the Presiding Officer shall serve
upon the respondent and the Determining Official, a Notice of Docketing
and Hearing.
(b) The Notice of Docketing and Hearing required by paragraph (a)
of this section may include:
(1) The tentative site, date, and time of the oral hearing, if one
is requested;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The nature of the hearing;
(4) The matters of fact and law to be decided;
(5) A description of the procedures governing the conduct of the
hearing; and
(6) Such other information as the Presiding Officer deems
appropriate.
Sec. 958.7 Hearing location.
An oral hearing under this part shall be held:
(a) In the judicial district of the United States in which the
respondent resides or transacts business;
(b) In the judicial district of the United States in which the
incident or incidents occurred upon which the determination of
liability under 39 U.S.C. 3018 was made by the Determining Official; or
(c) In such other place as may be determined by the Presiding
Officer.
Sec. 958.8 Rights of parties.
Subject to the sound discretion of the Presiding Officer, acting
under Sec. 958.9, parties to a hearing under this part shall have the
right:
(a) To be accompanied, represented, and advised, by an attorney or
representative of his or her own choosing;
(b) To participate in any conferences held by the Presiding
Officer;
(c) To agree to stipulations of fact or law, which shall be made
part of the record;
(d) To make opening and closing statements at the oral hearing;
(e) To present oral and documentary evidence relevant to the
issues;
(f) To submit rebuttal evidence;
(g) To conduct such cross-examination as may be required for a full
and true disclosure of the facts; and
(h) To submit written briefs, proposed findings of fact, and
proposed conclusions of law.
Sec. 958.9 Responsibilities and authority of presiding officer.
(a) The Presiding Officer shall conduct a fair and impartial
hearing, avoid unnecessary delay, maintain order, and assure that a
record of the proceeding is made.
(b) The Presiding Officer's authority includes, but is not limited
to, the following:
(1) Establishing, upon adequate notice to all parties, the date and
time of the oral hearing, if any, as well as, in accordance with Sec.
958.7, selecting the hearing site;
(2) Holding conferences, by telephone or in person, to identify or
simplify the issues, or to consider other matters that may aid in the
expeditious resolution of the proceeding;
(3) Continuing or recessing the hearing in whole or in part for a
reasonable period of time;
(4) Administering oaths and affirmations to witnesses;
(5) Ruling on all offers, motions, requests by the parties, and
other procedural matters;
(6) Issuing any notices, orders, or memoranda to the parties
concerning the proceedings;
(7) Regulating the scope and timing of discovery;
(8) Regulating the course of the hearing and the conduct of the
parties and their representatives;
(9) Examining witnesses;
[[Page 5139]]
(10) Receiving, ruling on, excluding, or limiting evidence in order
to assure that relevant, reliable and probative evidence is elicited on
the issues in dispute, but irrelevant, immaterial or repetitious
evidence is excluded;
(11) Deciding cases, upon motion of a party, in whole or in part by
summary judgment where there is no disputed issue of material fact;
(12) Establishing the record in the case; and
(13) Issuing a written Initial Decision containing findings of
fact, conclusions of law, and determinations with respect to whether
civil penalties, clean-up costs and/or damages for mailing hazardous
materials and/or related violations under 39 U.S.C. 3018 should be
imposed, and if so, the amounts thereof, after taking into account the
penalty considerations contained in 39 U.S.C. 3018(e).
Sec. 958.10 Prehearing conferences.
(a) At a reasonable time after issuing the Notice of Docketing and
Hearing, and with adequate notice to the parties, the Presiding Officer
may conduct, in person or by telephone, one or more prehearing
conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
(3) Stipulations or admissions of fact or as to the contents and
authenticity of documents;
(4) Limitation of the number of witnesses;
(5) Exchange of witness lists, copies of prior statements of
witnesses, and copies of hearing exhibits;
(6) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(7) Discovery;
(8) Possible changes in the scheduled oral hearing date, time or
site, if requested; and
(9) Any other matters related to the proceeding.
(b) Within a reasonable time after the completion of a prehearing
conference, the Presiding Officer shall issue an order detailing all
matters agreed upon by the parties, or ordered by the Presiding
Officer, at such conference.
Sec. 958.11 Respondent's access to information.
Except as provided in this paragraph, after receiving the Notice of
Docketing and Hearing the respondent may review and obtain a copy of
all relevant and material documents, transcripts, records, and other
materials which relate to the determination of liability by the
Determining Official under 39 U.S.C. 3018, and all exculpatory
information in the possession of the Determining Official relating to
liability for civil penalties, clean-up costs and/or damages for
mailing hazardous materials and/or related violations under 39 U.S.C.
3018. The respondent is not entitled to review or obtain a copy of any
document, transcript, record, or other material which is privileged
under Federal law. The Presiding Officer is authorized to issue orders
placing limitations on the scope, method, time and place for accessing
this information, and provisions for protecting the secrecy of
confidential information or documents.
Sec. 958.12 Depositions; interrogatories; admission of facts;
production and inspection of documents.
(a) General policy and protective orders. The parties are
encouraged to engage in voluntary discovery procedures. In connection
with any discovery procedure permitted under this part, the Presiding
Officer may issue any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense. Such orders may include limitations on the scope, method, time
and place for discovery, and provisions for protecting the secrecy of
confidential information or documents. Each party shall bear its own
expenses relating to discovery.
(b) Depositions. After the issuance of a Notice of Docketing and
Hearing, the parties may mutually agree to, or the Presiding Officer
may, upon application of either party and for good cause shown, order
the taking of testimony of any person by deposition upon oral
examination or written interrogatories before any officer authorized to
administer oaths at the place of examination, for use as evidence or
for purposes of discovery. The application for an order of the
Presiding Officer under this paragraph shall specify whether the
purpose of the deposition is discovery or for use as evidence.
(1) The time, place, and manner of taking depositions shall be as
mutually agreed by the parties, or failing such agreement, governed by
order of the Presiding Officer.
(2) No testimony taken by depositions shall be considered as part
of the record in the hearing unless and until such testimony is offered
and received into evidence by order of the Presiding Officer.
Deposition testimony will not ordinarily be received in evidence if an
oral hearing is requested by either party, and the deponent is
available to testify personally at the hearing. In such instances,
however, deposition testimony may be used to contradict or impeach the
testimony of the witness given at the hearing. In cases submitted for a
decision on a written record, the Presiding Officer may, in his or her
discretion, receive deposition testimony as evidence in supplementation
of that record.
(c) Interrogatories to parties. After the issuance of a Notice of
Docketing and Hearing, a party may serve on the other party written
interrogatories. Within 30 days after service, the party served shall
answer each interrogatory separately in writing, signed under oath, or
file objections thereto. Upon timely objection by the party, the
Presiding Officer will determine the extent to which the
interrogatories will be permitted.
(d) Admission of facts. After the issuance of a Notice of Docketing
and Hearing, a party may serve upon the other party a request for the
admission of specified facts. Within 30 days after service, the party
served shall answer each requested fact or file objections thereto.
Upon timely objection by the party, the Presiding Officer will
determine the extent to which the request for admission will be
permitted. The factual propositions set out in the request shall be
deemed admitted upon the failure of a party to respond to the request
for admission.
(e) Production and inspection of documents. Upon motion of a party
showing good cause therefor, and upon notice, the Presiding Officer may
order the other party to produce and permit the inspection and copying
or photographing of any designated documents or objects, not
privileged, specifically identified, and their relevance and
materiality to the cause or causes in issue explained, which are
reasonably calculated to lead to the discovery or admissible evidence.
If the parties cannot themselves agree thereon, the Presiding Officer
shall specify just terms and conditions in making the inspection and
taking the copies and photographs.
(f) Limitations. A discovery procedure may not be used to reach
documents, transcripts, records, or other material which a person is
not entitled to review pursuant to Sec. 958.11.
Sec. 958.13 Sanctions.
(a) In general. The Presiding Officer may sanction a person,
including any party, attorney or representative, for:
(1) Failing to comply with a lawful order or prescribed procedure;
(2) Failing to prosecute or defend an action; or
[[Page 5140]]
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Reasonableness. Any such sanction, including but not limited to
those listed in paragraphs (c), (d), and (e) of this section, shall
reasonably relate to the severity and nature of the failure or
misconduct.
(c) Failure to comply with an order. When a party fails to comply
with an order, including an order for taking a deposition, the
production of evidence within the party's control, or a request for
admission, the Presiding Officer may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) Prohibit such party from introducing evidence concerning, or
otherwise relying upon, testimony relating to the information sought;
(3) Permit the requesting party to introduce secondary evidence
concerning the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) Failure to prosecute or defend. If a party fails to prosecute
or defend an action under this part, the Presiding Officer may dismiss
the action, or enter an order of default and an Initial Decision.
(e) Failure to file timely. The Presiding Officer may refuse to
consider any motion or other pleading, report, or response which is not
filed in a timely fashion.
Sec. 958.14 Ex parte communications.
Communications between a Presiding Officer and a party shall not be
made on any matter in issue unless on notice and opportunity for all
parties to participate. This prohibition does not apply to procedural
matters. A memorandum of any communication between the Presiding
Officer and a party shall be transmitted by the Presiding Officer to
all parties.
Sec. 958.15 Post-hearing briefs.
Post-hearing briefs and reply briefs may be submitted upon such
terms as established by the Presiding Officer at the conclusion of the
hearing.
Sec. 958.16 Transcript of proceedings.
Testimony and argument at oral hearings shall be reported verbatim,
unless the Presiding Officer orders otherwise. Transcripts or copies of
the proceedings may be obtained by the parties at such rates as may be
fixed by contract between the reporter and the Postal Service.
Sec. 958.17 Initial decision.
(a) After the conclusion of the hearing, and the receipt of briefs,
if any, from the parties, the Presiding Officer shall issue a written
Initial Decision, including his or her findings and determinations.
Such decision shall include the findings of fact and conclusions of law
which the Presiding Officer relies upon in determining whether the
respondent is liable for civil penalties, clean-up costs and/or damages
for mailing hazardous materials and/or related violations under 39
U.S.C. 3018, and, if liability is found, shall set forth the amount of
any civil penalties, clean-up costs and/or damages imposed.
(b) The Presiding Officer shall promptly send to each party a copy
of his or her Initial Decision. A party may, in accordance with Sec.
958.18, appeal an adverse Initial Decision to the Judicial Officer.
Unless a party timely appeals in accordance with Sec. 958.18, the
Presiding Officer's Initial Decision, including the findings and
determinations, becomes the final agency decision.
Sec. 958.18 Appeal of initial decision to Judicial Officer.
(a) Notice of appeal and supporting brief. A party may appeal an
adverse Initial Decision by filing, within 30 days after the Presiding
Officer issues the Initial Decision, a Notice of Appeal with the
Recorder. The Judicial Officer may extend the filing period but only if
the party files a request for an extension within the initial 30-day
period and demonstrates good cause for such extension.
(1) The Notice of Appeal must be accompanied by a written brief
specifying the party's exceptions, and any reasons for such exceptions,
to the Presiding Officer's Initial Decision.
(2) Within 30 days of receiving the party's brief, the opposing
party may file with the Judicial Officer a response to the specified
exceptions to the Presiding Officer's Initial Decision.
(b) Form of review. Review by the Judicial Officer will be based
entirely on the record and written submissions.
(1) The Judicial Officer may affirm, reduce, reverse, or remand any
determination about a penalty or assessment by the Presiding Officer.
(2) The Judicial Officer shall not consider any argument or
objection that was not raised in the hearing unless the interested
party demonstrates that the failure to raise the argument or objection
before the Presiding Officer was caused by extraordinary circumstances.
(3) If any party demonstrates to the satisfaction of the Judicial
Officer that additional evidence not presented at the hearing is
material and that there were reasonable grounds for the failure to
present such evidence, the Judicial Officer may remand the matter to
the Presiding Officer for consideration of such additional evidence.
(c) Decision of Judicial Officer. The Judicial Officer shall
promptly serve each party to the appeal with a copy of his or her
decision. The decision of the Judicial Officer constitutes final agency
action and becomes final and binding on the parties.
Sec. 958.19 Form and filing of documents.
(a) Every pleading filed in a proceeding under this part must
contain a caption setting forth the title of the action, the docket
number (after assignment by the Recorder), an accurate designation of
the document, and the name, address, and telephone number of the party
on whose behalf the paper was filed. It shall also be signed by the
party or party representative submitting the document.
(b) The original and three copies of all pleadings and documents in
a proceeding conducted under this part shall be filed with the
Recorder, Judicial Officer Department, United States Postal Service,
2101 Wilson Boulevard, Suite 600, Arlington, Virginia 22201-3078.
Normal Recorder business hours are between 8:15 a.m. and 4:45 p.m.,
eastern standard or daylight saving time. The Recorder will transmit a
copy of each document filed to the other party, and the original to the
Presiding Officer.
(c) Pleadings or other document transmittals to, or communications
with, the Postal Service, other than to the Recorder under paragraph
(a) of this section, shall be made through the Determining Official or
designated Postal Service attorney. If a notice of appearance by a
representative is filed on behalf of the respondent, pleadings or
document transmittals to, or communications with, the respondent shall
be made through his or her representative.
Sec. 958.20 Service of notice of docketing and hearing, other
documents.
Unless otherwise specified, service of a Notice of Docketing and
Hearing or any other document under this part shall be effected by
registered or certified mail, return receipt requested, or by personal
delivery. In the case of personal service, the person making service
shall, if possible, secure from the party or other person sought to be
served, or his or her agent, a written acknowledgement of receipt,
showing the date and time of such receipt. If the person upon whom
service is made declines to acknowledge receipt, the
[[Page 5141]]
person effecting service shall execute a statement, indicating the
time, place and manner of service, which shall constitute evidence of
service.
Sec. 958.21 Computation of time.
In computing any period of time provided for by this part, or any
order issued pursuant to this part, the time begins with the day
following the act, event, or default, and includes the last day of the
period, unless it is a Saturday, Sunday, or legal holiday observed by
the Federal Government, in which event it includes the next business
day. Except as otherwise provided in these rules or an applicable
order, prescribed periods of time are measured in calendar days rather
than business days.
Sec. 958.22 Continuances and extensions.
Continuances and extensions may be granted under these rules for
good cause shown.
Sec. 958.23 Settlement.
Either party may make offers of settlement or proposals of
adjustment at any time. The Determining Official has the exclusive
authority to compromise or settle any determinations of liability for
civil penalties, clean-up costs and/or damages for mailing hazardous
materials and/or related violations under 39 U.S.C. 3018, without the
consent of the Presiding Officer or Judicial Officer.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. E9-1864 Filed 1-28-09; 8:45 am]
BILLING CODE 7710-12-P
