Appeals of Post Office Closings, 6676-6681 [2012-2931]
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Federal Register / Vol. 77, No. 27 / Thursday, February 9, 2012 / Rules and Regulations
POSTAL SERVICE
Authority: 5 U.S.C. App. 3; 39 U.S.C.
401(2) and 1001.
39 CFR Part 230
■
Office of Inspector General; Contractor
Requirements
§ 230.6
Postal Service.
ACTION: Final rule.
AGENCY:
This rule establishes
standards of qualification and
responsibility for contractors employed
by the Office of Inspector General. The
rule also emphasizes consistency in
contractor selection, and clarifies the
OIG’s exclusive authority to set
qualifications and standards for its own
contractors, as well as ensure the use of
contracting best practices as established
by the Federal Acquisition Regulations
and other applicable sources in making
contract awards.
DATES: Effective Date: March 12, 2012.
FOR FURTHER INFORMATION CONTACT: Anil
Murjani, Office of General Counsel,
Office of Inspector General, United
States Postal Service, (703) 248–2244.
SUPPLEMENTARY INFORMATION: The OIG
possesses contracting authority
pursuant to the Inspector General Act of
1978, as amended (section 6(a)(9) of 5
U.S.C. App. 3). Under 39 CFR 230.1(i),
the Postal Service’s Office of the
Inspector General (OIG) may hire and
retain the services of expert consultants
and other personnel as necessary to
fulfill the duties and responsibilities of
the Office. This rule establishes general
standards of qualification and
responsibility for such contractors. The
rule also emphasizes consistency in
contractor selection, and clarifies the
OIG’s exclusive authority to set
qualifications and standards for its own
contractors, as well as ensure the use of
contracting best practices as established
by the Federal Acquisition Regulations
and other applicable sources in making
contract awards. Neither the United
States Postal Service nor the OIG will be
bound by the Federal Acquisition
Regulations through the adoption of this
rule.
SUMMARY:
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List of Subjects in 39 CFR Part 230
Authority delegations (Government
agencies), Freedom of information,
Organization and functions
(Government agencies), Privacy.
For the reasons stated, the Postal
Service adopts the following
amendment to 39 CFR Part 230:
PART 230—OFFICE OF INSPECTOR
GENERAL
1. The authority citation for Part 230
continues to read as follows:
■
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2. Subpart A of Part 230 is amended
by adding new § 230.6 to read as
follows:
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Contractor requirements.
(a) The Office of Inspector General
shall be the exclusive judge of its
contractors’ qualifications.
(b) The Office of Inspector General
shall award contracts to and make
purchases from only responsible
contractors. In order to award a contract,
a contracting officer must make an
affirmative determination of
responsibility.
(c) A responsible prospective
contractor is one who:
(1) Has the financial and logistical
resources to perform the contract;
(2) Has the necessary organization,
experience, and technical ability to
perform the contract;
(3) Is able to comply with the delivery
and performance schedules established
by the Office of Inspector General;
(4) Has a satisfactory performance
record (although a lack of relevant
performance history shall not disqualify
a prospective contractor from award);
(5) Has a satisfactory record of
integrity and business ethics; and,
(6) Is otherwise qualified and eligible
to receive an award under applicable
federal laws and regulations.
Stanley F. Mires,
Attorney, Legal Policy & Legislative Advice.
[FR Doc. 2012–2941 Filed 2–8–12; 8:45 am]
BILLING CODE 7710–12–P
POSTAL REGULATORY COMMISSION
39 CFR Parts 3001 and 3025
[Order No. 1171; Docket No. RM2011–13]
Appeals of Post Office Closings
Postal Regulatory Commission.
Final rule.
AGENCY:
ACTION:
The Commission is adopting
a new set of rules for appeals of post
office closings. The new rules are
intended to update existing rules; foster
clarity and simplicity, especially in
terms of requirements that apply to the
public; and expedite the appeal process.
The rules incorporate some, but not all,
of the proposed rules, as well as some
commenters’ suggestions. Some
proposals have been deferred to allow
time for further consideration. Adoption
of a new set of rules will improve the
post office closing appeal process.
DATES: Effective Date: March 12, 2012.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Stephen L. Sharfman, General Counsel,
at 202–789–6820.
SUPPLEMENTARY INFORMATION: Regulatory
history: 76 FR 54179 (August 31, 2011)
and 76 FR 59085 (September 23, 2011).
Table of Contents
I. Introduction
II. Unopposed Rules
III. Suggested Improvements
IV. Easily Resolved Opposition
V. Substantial Opposition—Consideration
Deferred
I. Introduction
On August 18, 2011, the Commission
issued a notice of proposed
rulemaking.1 That notice was intended,
in part, to simplify the rules applicable
to appeals of post office closings and
consolidations and to make the rules
consistent with current practice. See
Order No. 814 at 1–3. On August 25,
2011, the Commission issued a
supplemental notice proposing to
remove from the current rules the
requirement that the Commission
publish notice of appeals in the Federal
Register.2
Some of the proposed rules generated
opposition. Others were relatively
uncontroversial. The Commission finds
that it will be beneficial to promptly
adopt rules that were, for the most part,
unopposed. The Commission will
address the other proposed rules in a
later order. This order is organized as
follows. First, proposed rules that
generated no opposition are described
and adopted. Next, proposed rules that
generated suggestions for improvement
are described, modified as appropriate,
and adopted or deferred for further
consideration. Third, proposed rules
that generated controversy that is easily
resolved are described, modified as
appropriate, and adopted. Finally,
proposed rules that generated
significant opposition that requires
additional research and analysis are
described and deferred to a later date.
II. Unopposed Rules
Rules of general applicability. The
Commission has proposed amendments
to rules of practice 9, 10, 12, and 17 in
39 CFR part 3001, subpart A. These
amendments are intended to ease
requirements for persons who file
appeals of post office closings or
consolidations but who do not or cannot
1 Notice of Proposed Rulemaking Regarding
Appeals of Postal Service Determinations to Close
or Consolidate Post Offices, August 18, 2011 (Order
No. 814).
2 Supplemental Notice Regarding Proposed Rules
Governing Appeals, August 25, 2011 (Order No.
823).
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use the Internet. They also correct crossreferences and remove the requirement
to publish in the Federal Register notice
of an appeal of a post office closing or
consolidation. The Commission
confirms that it will continue to publish
on its Web site a notice of each appeal
containing the applicable procedural
schedule.3 The proposed amendments
to rules 9, 10, 12, and 17 in 39 CFR part
3001, subpart A are unopposed and are
adopted as proposed. The Commission
also amends rule 3001.7(b) to replace
the words ‘‘Subpart H’’ with ‘‘Part
3025’’. Rule 7(b) would be incorrect if
not amended, which constitutes good
cause under 5 U.S.C. 553(d)(3) for not
publishing proposed notice of this
amendment.4
Consolidation of appeals. Proposed
rule 3025.12 explains that the
Commission consolidates appeals
relating to the same post office into a
single docket. This rule is unopposed.
Rule 3025.12 is adopted as proposed.
Participant statement. Proposed rule
3025.40, which describes participant
statements (Form 61), is unopposed. It
is adopted as proposed.
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III. Suggested Improvements
Rules of general applicability. The
Public Representative suggests a change
to rule 3001.5(m) as well as changes to
the list of rules of general applicability
contained in proposed rule 3025.2(b).5
Rule 5(m) defines the word
‘‘Appellant.’’ Proposed Part 3025 uses
the word ‘‘Petitioner’’ instead of
‘‘Appellant.’’ Rule 5(m) is hereby
amended accordingly. Proposed rule
3025.2(b) makes rule 3001.11 applicable
in appeal proceedings. Rule 11(b) refers
to notices of intervention, which are no
longer required under proposed part
3025. Interested persons may file
comments without first intervening.
Rule 11(g) concerns certificates of
service for documents filed as hard
copy. Amended rule 12 provides that
the Secretary will serve hard-copy
documents filed by participants in
appeals cases. There is thus no need to
refer to rules 11(b) and 11(g) in
proposed rule 3025.2(b).
The Public Representative also
suggests that participants in appeals be
given 14 days to respond to Postal
Service motions and briefs rather than
the 7 days allowed by rule 3001.20(b)
and proposed rule 3025.43. This is
3 See Initial Comments of the United States Postal
Service, October 3, 2011, at 25 (Postal Service
Comments).
4 Comments of the Public Representative, October
3, 2011, at 7–8 (PR Comments).
5 American Postal Workers Union, AFL–CIO
Comments on Proposed Rules, October 5, 2011, at
2–4 (APWU Comments).
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based on the expectation that many, if
not most, participants will be
corresponding with the Commission by
mail rather than using the Internet.
Seven days does appear to be
inadequate. Most of the 7 days could
easily be consumed in transit to and
from a participant. However, the
proposed rules are also intended to
expedite Commission consideration of
appeals. Order No. 814 at 5. A 14-day
response time, especially for motions to
dismiss, could necessitate revisions to
the procedural schedule. Under the
Public Representative’s proposed
change, responses to motions to dismiss
would be due 14 days after their filing,
while participant statements are due 20
days after the filing of such motions.
Proposed rule 3025.41. Ten days will
be allowed for the response to Postal
Service motions and briefs.
Definitions. The Public Representative
suggests moving the definition of
‘‘Petition for Review’’ from proposed
rule 3025.10(a) to the definitions
section, proposed rule 3025.1. PR
Comments at 6. That suggestion is
adopted. The Public Representative also
proposes additions to the definition of
‘‘Petition for Review,’’ such as
permissible and impermissible modes of
submission. This topic is covered in
proposed rule 3025.11.
Applicability. Rule 3025.2, as
proposed, explains when the rules in
part 3025 apply. It also sets out rules in
part 3001 that apply to appeals. The
Postal Service suggests changing the
phrase ‘‘wants to appeal’’ in proposed
rule 3025.2(a)(2) to ‘‘appeals.’’ Postal
Service Comments at 2–7, 13–19, 21.
This change is adopted.
Petitions for Review. The Postal
Service and the Public Representative
suggest changes to proposed rule
3025.10. Postal Service Comments,
Appendix at iv; PR Comments,
Attachment A at 2–3. This rule explains
what information must be included in a
Petition for Review. The Public
Representative suggests that a Petition
for Review include a petitioner’s phone
number, the ZIP Code of the post office
involved, and the final determination.
The Postal Service suggests that a
Petition for Review include the date on
which the final determination was
posted. One of the purposes of the
proposed rules is to reduce the burden
involved in filing an appeal. See Order
No. 814 at 2. Consideration of these
suggestions is deferred. Rule 3025.10 is
adopted as proposed except for the
addition of the word ‘‘only’’ between
‘‘appealed’’ and ‘‘by.’’ This tracks the
statutory requirement that a petitioner
be served by the office to be closed or
consolidated.
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Proposed rule 3025.11 explains how
to submit a Petition for Review to the
Commission. The Public Representative
proposes changes to rule 11. PR
Comments, Attachment A at 3. The
Public Representative proposes that the
means of submission of appeals set out
in rule 11 apply to all documents
submitted by participants other than the
Postal Service. Rule 3025.11 is adopted
as modified by the Public
Representative.
Rule 3025.13, as proposed, explains
when a Petition for Review is
considered timely. The statutory
deadline for an appeal is 30 days from
a final determination’s being made
available to patrons. The exact deadline
depends on whether a petition is
mailed, filed electronically, or delivered
by someone other than the Postal
Service. The Postal Service and the
Public Representative suggest changing
the event that triggers the running of the
30 days from the day the final
determination is made available, to the
date of posting of the final
determination. Postal Service
Comments, Appendix at v; PR
Comments at 3–4. The phrase ‘‘made
available’’ is the statutory description.
Consideration of this proposed change
is deferred. Rule 13 is adopted as
proposed.
Record on review. Rule 3025.20, as
proposed, describes the material that the
Commission considers when reaching a
decision on an appeal. Rules 20(a)(1)
through (4) are adopted as proposed and
designated as paragraph (a). The Postal
Service objects to proposed rule 20(a)(5)
and to the sentence that follows, both of
which concern the Commission’s
treatment of factual matters. Postal
Service Comments at 17–18, 21–22.
Consideration of those proposals is
deferred. The sentence in current rule
3001.112 that limits the record to all
and only evidence considered by the
Postal Service is retained as paragraph
(b).
Administrative record. Proposed rule
3025.21 requires the Postal Service to
notify participants who do not use
Filing Online when the administrative
record is filed with the Commission.
The Postal Service points out that the
administrative record is available at
affected post offices while a proposal to
close is under consideration and when
a final determination to close is under
appeal. Id. at 26–27. The Postal Service
suggests that the Commission include
information on the location of
administrative records in the orders
establishing procedural schedules or in
the letters transmitting Form 61 to
participants. Id. at 27, n.18. Proposed
rule 3025.21 is amended to make the
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Secretary responsible for informing
participants that the administrative
record is available at the post office(s)
where the final determination was
posted.
Posting of filings during appeal.
Proposed rule 3025.22 requires the
Postal Service to maintain for public
inspection copies of all filings related to
an appeal at the post office whose
closure or consolidation is under
review. If the post office is suspended,
the filings are to be maintained at the
nearest open post office. Also, the Postal
Service is to notify participants by mail
where the filings may be inspected. The
Postal Service points out that its own
regulations require posting the filings in
the same locations where the
administrative record is available—i.e.,
where the final determination was
posted. Id. at 27. Rule 22 is amended to
make the Secretary responsible for
informing participants that all filings
related to an appeal are available at the
post office(s) where the final
determination was posted.
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IV. Easily Resolved Opposition
Participation by others. For the most
part, the Commission is deferring
consideration of proposed rules that
generated opposition. One exception is
proposed rule 3025.14(a), which defines
the class of persons who may participate
in an appeal initiated by someone else.
This proposed rule is the analog of
current rule 3001.111(b).
The purposes of rule 14(a), as
proposed, are: (1) To remove the
requirement for filing notices of
intervention, and (2) to simplify
language. The Postal Service reads
proposed rule 14(a) as expanding the
class of persons who may participate in
an appeal. Postal Service Comments at
20 (as revised October 7, 2011).
American Postal Workers Union
(APWU) reads proposed rule 14 as
narrowing the class of persons who may
participate in an appeal.6 In addition to
persons served by a post office to be
closed or consolidated, current rule
111(b) allows ‘‘any other interested
person, or any counsel, agent or other
person authorized or recognized by the
Postal Service as such interested
person’s representative or the
representative of such interested
person’s recognized group, such as
Postmasters’’ to intervene in an appeal
(emphasis added). Proposed rule 14(a)
intended no change in the class of
persons currently allowed to intervene.
6 See section 404(d)(5)—American Postal Workers
Union, AFL–CIO Comments on Proposed Rules,
October 5, 2011, at 2–4 (APWU Comments).
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The language of current rule 3001.111(b)
will be retained as rule 14(a).
Filing deadlines. Rules 3025.41
through 43, as proposed, set deadlines
for participant statements, briefs, or
comments. The Postal Service objects to
categorizing participants as supporting
either the Postal Service or the
petitioner. It asks, ‘‘[a]re participants
supposed to decide what due date to use
based on their alignment with or against
the Postal Service regarding a particular
issue, the ultimate issue, or some
combination?’’ Postal Service Comments
at 23. The wording of these rules will be
changed to categorize participants as
either supporting or opposing a
Commission order that the entire matter
be returned to the Postal Service for
further consideration.
Rule 3025.14(b), as proposed, is also
changed to categorize comments as
supporting or opposing an order
returning the matter for further
consideration.7
Oral argument. The proposed rules do
not include a provision for oral
argument. As was explained in the
notice of proposed rulemaking, the
Commission has never held oral
argument in an appeal proceeding.
Order No. 814 at 6. Oral argument
would also extend the time needed to
decide an appeal, which the new rules
are intended to shorten. See id. at 5.
APWU requests preservation of the right
to appeal in unusual situations. APWU
Comments at 4. Participants in appeal
proceedings may request oral argument
or any other relief pursuant to rule
3001.21(a) (Motions) when
circumstances warrant.
V. Substantial Opposition—
Consideration Deferred
Definitions. Rule 3025.1 (Definitions),
as proposed, has been changed by
removing definitions of the terms
‘‘administrative record,’’ ‘‘post office,’’
and ‘‘relocate’’ and by adding the
definition of ‘‘Petition for Review.’’
Proposed rule 3025.1 defines
‘‘administrative record’’ as ‘‘all
documents and materials created by the
Postal Service or made available by the
public to the Postal Service for its
review in anticipation of the action for
which review is sought.’’ It defines
‘‘post office’’ as ‘‘a Postal Service
operated retail facility.’’ It defines
‘‘relocate’’ to mean a situation in which
‘‘the location of a post office within a
community changes, but the total
number of post offices within the
community remains the same or
increases.’’
The Postal Service objects to the
definitions of ‘‘administrative record’’
and ‘‘post office’’ as overbroad and to
the definition of ‘‘relocate’’ as too
narrow. Postal Service Comments at
2–7, 13–19, 21. Valpak objects to the
definition of ‘‘post office’’ as
overbroad.8 APWU objects to the
definition of ‘‘relocate’’ as overbroad.
APWU Comments at 1–2. Consideration
of these proposed definitions is
deferred.
Notice. Proposed rule 3025.3 requires
the Postal Service to post notice of
proposals and final determinations to
close or consolidate a post office. It also
requires the Postal Service to mail such
notices to patrons of suspended offices.
The Postal Service and Valpak object to
this rule. They claim that the
Commission has no authority to regulate
Postal Service actions that occur before
an appeal has been filed. Postal Service
Comments at 7–11; Valpak Comments at
5–7. Consideration of proposed rule
3025.3 is deferred. Two sentences from
current rule 3001.110 setting out
existing notice requirements, with
minor editorial corrections to accurately
state statutory language are retained as
rules 3025.3(a) through (b).
Automatic suspension. Rule 3025.30,
as proposed, would replace current rule
3001.114 and automatically suspend a
final determination to close or
consolidate a post office when a timely
appeal is filed. The Postal Service and
Valpak object to this proposed rule as
ultra vires. Postal Service Comments at
11–13; Valpak Comments at 7–8.
Consideration of this proposal is
deferred. The language of current rule
3001.114 related to suspension pending
review is retained as rule 3025.30,
except that a sentence referring to
notices of intervention and a sentence
referring to the filing of the record are
deleted.
It is ordered:
1. Changes to part 3001 of title 39,
chapter III, Code of Federal Regulations,
as set forth below, are hereby adopted,
effective 30 days after publication in the
Federal Register.
2. A new part 3025 of title 39, chapter
III, Code of Federal Regulations, as set
forth below, is hereby adopted, effective
30 days after publication in the Federal
Register.
3. The Secretary shall arrange for
publication of this order in the Federal
Register.
7 See section 404(d)(5) (‘‘The Commission may
affirm the determination of the Postal Service or
order that the entire matter be returned for further
consideration, but the Commission may not modify
the determination of the Postal Service.’’)
8 Valpak Direct Marketing Systems, Inc. and
Valpak Dealers’ Association, Inc. Comments
Regarding Proposed Rules Applicable to Appeals of
Post Office Closings, October 3, 2011, at 4–5
(Valpak Comments).
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List of Subjects
39 CFR Part 3001
Administrative practice and
procedure, Freedom of information,
Postal Service, Sunshine Act.
39 CFR Part 3025
Administrative practice and
procedure, Postal Service.
By the Commission.
Issued: January 25, 2012.
Ruth Ann Abrams,
Secretary.
For the reasons discussed in the
preamble, the Postal Regulatory
Commission amends chapter III of title
39 of the Code of Federal Regulations as
follows.
of the presiding officer, shall be made
using the Internet (Filing Online)
pursuant to § 3001.10(a) at the
Commission’s Web site (https://
www.prc.gov), unless a waiver is
obtained. If a waiver is obtained, a hard
copy document may be filed either by
mailing or by hand delivery to the
Office of the Secretary, Postal
Regulatory Commission, 901 New York
Ave., NW., Suite 200, Washington, DC
20268–0001 during regular business
hours on a date no later than that
specified for such filing. The
requirements of this section do not
apply to participants other than the
Postal Service in proceedings conducted
pursuant to part 3025 of this chapter.
*
*
*
*
*
5. In § 3001.10, revise paragraph (b)
and add new paragraph (d) to read as
follows:
■
PART 3001—RULES OF PRACTICE
AND PROCEDURE
■
1. The authority citation for part 3001
continues to read as follows:
§ 3001.10 Form and number of copies of
documents.
Authority: 39 U.S.C. 404(d); 503; 504;
3661.
*
Subpart A—Rules of General
Applicability
2. In § 3001.5, revise paragraph (m) to
read as follows:
■
Subpart A—Rules of General
Applicability
§ 3001.5
Definitions.
*
*
*
*
*
(m) Petitioner means a person who as
permitted by 39 U.S.C. 404(b) appeals to
the Commission a determination of the
Postal Service to close or consolidate a
post office.
*
*
*
*
*
■ 3. In § 3001.7, revise paragraph (b)
introductory text to read as follows:
§ 3001.7
Ex parte communications.
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*
*
*
*
*
(b) Prohibition. In any agency
proceeding that is required to be
conducted in accordance with section
556 of Title 5 or a proceeding conducted
pursuant to part 3025 of this chapter
except to the extent required for the
disposition of ex parte matters as
authorized by law:
*
*
*
*
*
■ 4. In § 3001.9, revise paragraph (a) to
read as follows:
§ 3001.9
Filing of documents.
(a) Filing with the Commission. The
filing of each written document required
or authorized by these rules or any
applicable statute, rule, regulation, or
order of the Commission, or by direction
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*
*
*
*
(b) Hard copies. Each document filed
in paper form must be produced on
letter-size paper, 8 to 81⁄2 inches wide
by 101⁄2 to 11 inches long, with left- and
right-hand margins not less than 1 inch
and other margins not less than .75
inches, except that tables, charts or
special documents attached thereto may
be larger if required, provided that they
are folded to the size of the document
to which they are attached. If the
document is bound, it shall be bound on
the left side. Copies of documents for
filing and service must be printed from
a text-based pdf version of the
document, where possible. Otherwise,
they may be reproduced by any
duplicating process that produces clear
and legible copies. Each person filing a
hardcopy document with the
Commission must provide an original
and two fully conformed copies of the
document required or permitted to be
filed under this part, except for a
document filed under seal, for which
only the original and two (2) copies
need be filed. The copies need not be
signed but shall show the full name of
the individual signing the original
document and the certificate of service
attached thereto.
*
*
*
*
*
(d) Exception for appeals of post
office closings and consolidations. The
requirements of this section do not
apply to participants other than the
Postal Service in proceedings conducted
pursuant to part 3025 of this chapter.
6. In § 3001.12, add new paragraph
(a)(3) to read as follows:
■
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§ 3001.12
6679
Service of documents.
(a) * * *
(3) In proceedings conducted
pursuant to part 3025 of this chapter,
the Secretary will serve documents
(except an administrative record) on
participants who do not use Filing
Online. Service will be by First-Class
Mail.
*
*
*
*
*
■ 7. Revise § 3001.17 to read as follows:
§ 3001.17
Notice of proceeding.
(a) When issued. The Commission
shall issue a notice of a proceeding to
be determined on the record with an
opportunity for any interested person to
request a hearing whenever:
(1) The Postal Service files a request
with the Commission to issue an
advisory opinion on a proposed change
in the nature of postal services which
will generally affect service on a
nationwide or substantially nationwide
basis;
(2) The Commission in the exercise of
its discretion determines that an
opportunity for hearing should be
provided with regard to a complaint
filed pursuant to part 3030 of this
chapter; or
(3) The Commission in the exercise of
its discretion determines it is
appropriate.
(b) Publication and service of notice.
Each notice of proceeding shall be
published in the Federal Register and
served on the Postal Service, and the
complainant in a complaint proceeding.
(c) Contents of notice. The notice of a
proceeding shall include the following:
(1) The general nature of the
proceeding involved in terms of
categories listed in paragraph (a) of this
section;
(2) A reference to the legal authority
under which the proceeding is to be
conducted;
(3) A concise description of proposals
for changes in rates or fees, proposals
for the establishment of or changes in
the mail classification schedule,
proposals for changes in the nature of
postal services and, in the case of a
complaint, an identification of the
complainant and a concise description
of the subject matter of the complaint;
(4) The date by which notices of
intervention and requests for hearing
must be filed; and
(5) Such other information as the
Commission may desire to include
Subpart H—[Removed and Reserved]
8. Remove and reserve Subpart H,
consisting of §§ 3001.110 through
3001.117.
■ 9. Add part 3025, to read as follows:
■
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Federal Register / Vol. 77, No. 27 / Thursday, February 9, 2012 / Rules and Regulations
PART 3025—RULES FOR APPEALS OF
POSTAL SERVICE DETERMINATIONS
TO CLOSE OR CONSOLIDATE POST
OFFICES
Sec.
3025.1 Definitions.
3025.2 Applicability.
3025.3 Notice by the Postal Service.
3025.10 Starting an appeal.
3025.11 Submitting an appeal and other
documents.
3025.12 Duplicate appeals.
3025.13 Deadlines for appeals.
3025.14 Participation by others.
3025.20 The record on review.
3025.21 Filing of the administrative record.
3025.22 Making documents available for
inspection by the public.
3025.30 Suspension pending review.
3025.40 Participant statement.
3025.41 Due date for participant statement.
3025.42 Due date for Postal Service
response.
3025.43 Due date for replies to the Postal
Service.
Authority: 39 U.S.C. 404(d).
§ 3025.1
Definitions.
The following definitions apply in
this part:
(a) Final determination means the
written determination and findings
required by 39 U.S.C. 404(d)(3).
(b) Petitioner means a person who
files a Petition for Review.
(c) Petition for Review means a
written document that the Commission
accepts as an appeal of a post office
closing or consolidation.
emcdonald on DSK29S0YB1PROD with RULES
§ 3025.2
Applicability.
(a) The rules in this part apply when:
(1) The Postal Service decides to close
or consolidate a post office, and
(2) A patron of that post office appeals
the closing or consolidation.
(b) The following sections in part
3001, subpart A of this chapter, apply to
appeals of post office closings or
consolidations: §§ 3001.1 through
3001.9 of this chapter; § 3001.11(a) of
this chapter, § 3001.11(c) through (f) of
this chapter; §§ 3001.12 through 3001.17
of this chapter; and §§ 3001.21 and
3001.22 of this chapter.
(c) Answers to motions filed by the
Postal Service are due within 10 days.
§ 3025.3 Notice by the Postal Service.
(a) Pursuant to section 404(d) of title
39, United States Code, any decision to
close or consolidate a post office must
be preceded by 60 days’ notice to
persons served by such post office, the
opportunity for such persons to present
their views, and a written determination
based upon consideration of each of the
factors listed in section 404(d)(2) of title
39, United States Code.
(b) This notice must include a
provision stating that, pursuant to
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15:13 Feb 08, 2012
Jkt 226001
section 404(d)(5) of title 39, United
States Code, a final Postal Service
determination to close or consolidate a
post office may be appealed by any
person served by such office to the
Postal Regulatory Commission at 901
New York Avenue NW., Suite 200,
Washington, DC 20268–0001, within 30
days after such determination is made
available to such person by the Postal
Service.
§ 3025.10
Starting an appeal.
(a) A Postal Service decision to close
or consolidate a post office may be
appealed only by a person served by
that office. An appeal is commenced by
submitting a Petition for Review to the
Postal Regulatory Commission.
(b) The Petition for Review must state
that the person(s) submitting it is/are
served by the post office that the Postal
Service has decided to close or
consolidate. The petition should
include the name(s) and address(es) of
the person(s) filing it and the name or
location of the post office to be closed
or consolidated. A petitioner may
include other information deemed
pertinent.
§ 3025.11 Submitting an appeal and other
documents.
Petitions for Review, comments,
motions, answers, and other documents
may be submitted by persons other than
the Postal Service by mail,
electronically through the Commission’s
Web site, https://www.prc.gov, or by
delivery to the Commission’s offices at
901 New York Avenue NW., Suite 200,
Washington, DC 20268–0001.
§ 3025.12
Duplicate appeals.
If the Commission receives more than
one Petition for Review of the same post
office closing or consolidation, the
petitions will be considered in a single
docket.
§ 3025.13
Deadlines for appeals.
(a) In general. If the Postal Service has
issued a final determination to close or
consolidate a post office, an appeal is
due within 30 days of the final
determination being made available in
conformance with § 3025.3(b).
(b) Appeals sent by mail. If sent by
mail, a Petition for Review must be
postmarked no later than 30 days after
the final determination has been made
available.
(c) Appeals sent by other physical
delivery. If sent by some other form of
physical delivery, a Petition for Review
must be received in the Commission’s
Docket Section no later than 4:30 p.m.,
eastern time, on the 30th day after the
final determination has been made
available.
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(d) Appeals sent electronically. If
submitted electronically, a Petition for
Review must be received in the
Commission’s Docket Section no later
than 4:30 p.m., eastern time, on the 30th
day after the final determination has
been made available.
§ 3025.14
Participation by others.
(a) A person served by the post office
to be closed or consolidated pursuant to
the Postal Service written determination
under review who desires to intervene
in the proceeding, or any other
interested person, or any counsel, agent,
or other person authorized or
recognized by the Postal Service as such
interested person’s representative or the
representative of such interested
person’s recognized group, such as
Postmasters, may participate in an
appeal by sending written comments to
the Postal Regulatory Commission in the
manner described in § 3025.11.
(b) Persons may submit comments
supporting or opposing a Commission
order returning the entire matter to the
Postal Service for further consideration.
Comments must be filed in accordance
with the deadlines established in
§§ 3025.41 through 3025.43.
Commenters may use PRC Form 61,
which is available on the Commission’s
Web site, https://www.prc.gov.
§ 3025.20
The record on review.
(a) The record on review includes:
(1) The final determination;
(2) The notices to persons served by
the post office to be closed or
consolidated;
(3) The administrative record; and
(4) All documents submitted in the
appeal proceeding.
(b) The record shall contain all
evidence considered by the Postal
Service in making its determination and
shall contain no evidence not
previously considered by the Postal
Service.
§ 3025.21
record.
Filing of the administrative
The Postal Service shall file the
administrative record within 10 days of
the date of posting of a Petition for
Review on the Commission’s Web site.
The Commission may alter this time for
good cause. The Secretary will notify
participants that they may view the
administrative record at post offices
where the final determination was
posted.
§ 3025.22 Making documents available for
inspection by the public.
Copies of all filings (including the
administrative record) related to an
appeal shall be available for public
inspection at the post offices where the
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Federal Register / Vol. 77, No. 27 / Thursday, February 9, 2012 / Rules and Regulations
final determination was posted. The
Secretary will notify participants that
they may view copies of filings at post
offices where the final determination
was posted.
§ 3025.30
Suspension pending review.
(a) Application. Application for
suspension of a determination of the
Postal Service to close or consolidate
any post office pending the outcome of
an appeal to the Postal Regulatory
Commission shall be made at the time
of the filing of a Petition for Review.
The application shall show the reasons
for the relief requested and the facts
relied upon, and if the facts are subject
to dispute the application shall be
supported by affidavits or other sworn
statements or copies thereof. The
applicant must be a person served by
the affected post office. Immediate
notice of the application shall be given
to all parties to the proceeding. The
application shall be filed with the
Secretary of the Commission.
(b) Answer and filing of the relevant
record by the Postal Service. Within 10
days after the application for suspension
is filed, the Postal Service shall file with
the Secretary of the Commission and
serve on the petitioners an answer to the
application supported by affidavits or
other sworn statements or copies
thereof.
§ 3025.40
Participant statement.
(a) When a timely Petition for Review
of a decision to close or consolidate a
post office is filed, the Secretary shall
furnish petitioner with a copy of PRC
Form 61. This form is designed to
inform petitioners on how to make a
statement of his/her arguments in
support of the petition.
(b) The instructions for PRC Form 61
shall provide:
(1) A concise explanation of the
purpose of the form;
(2) A copy of section 404(d)(2)(A) of
title 39, United States Code; and
(3) Notification that, if petitioner
prefers, he or she may file a brief in lieu
of or in addition to completing PRC
Form 61.
emcdonald on DSK29S0YB1PROD with RULES
§ 3025.41 Due date for participant
statement.
The statement or brief of petitioner
and of any other participant seeking to
have the Commission return the entire
matter to the Postal Service for further
consideration, shall be filed not more
than 20 days after the filing of the
administrative record.
§ 3025.42 Due date for Postal Service
response.
The statement or brief of the Postal
Service, and of any other participant
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15:13 Feb 08, 2012
Jkt 226001
opposing return of the matter for further
consideration, shall be filed not more
than 14 days after the date for filing of
petitioner’s statement.
§ 3025.43
Service.
Due date for replies to the Postal
Petitioner, and any other participant
seeking to have the Commission return
the matter for further consideration,
may file a reply to the Postal Service
response not more than 10 days after the
date of the Postal Service response.
Replies are limited to issues discussed
in the responses of the Postal Service
and other participants seeking
affirmation of the Postal Service
determination.
[FR Doc. 2012–2931 Filed 2–8–12; 8:45 am]
BILLING CODE 7710–FW–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 62
[EPA–R04–OAR–2010–0392(a); FRL–9628–
6]
Approval and Promulgation of State
Plans for Designated Facilities and
Pollutants; State of Florida; Control of
Large Municipal Waste Combustor
(LMWC) Emissions From Existing
Facilities; Correction
Environmental Protection
Agency (EPA).
ACTION: Final rule; correcting
amendment.
AGENCY:
On December 30, 2010, EPA
published a final rule approving the
Clean Air Act (CAA) section 111(d)/129
State Plan (the Plan) submitted by the
Florida Department of Environmental
Protection for the State of Florida on
July 12, 2007, for implementing and
enforcing the Emissions Guidelines
(EGs) applicable to existing Large
Municipal Waste Combustors (LMWCs).
These EGs apply to municipal waste
combustors with a capacity to combust
more than 250 tons per day of
municipal solid waste (MSW). This
action corrects an error in the regulatory
language in paragraph (a) of EPA’s
December 30, 2010, final rule.
DATES: This action is effective February
9, 2012.
ADDRESSES: Copies of the
documentation used in the action being
corrected are available for inspection
during normal business hours at the
following location: U.S. Environmental
Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303–
8960. The Regional Office’s official
SUMMARY:
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
6681
hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT:
Daniel Garver, Air Toxics Assessment
and Implementation Section, Air Toxics
and Monitoring Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9839.
Mr. Garver can also be reached via
electronic mail at
garver.daniel@epa.gov.
SUPPLEMENTARY INFORMATION: This
action corrects an error in the regulatory
language for an entry that appears in
paragraph (a) of Florida’s Identification
of Sources at 40 CFR 62.2355. The final
action determined that EPA approved
the CAA section 111(d)/129 Plan
applicable to LMWCs in the State of
Florida on December 30, 2010 (75 FR
82269). However, EPA inadvertently
indicated in 40 CFR 62.2355(a) that ‘‘the
plan applies to existing facilities with a
municipal waste combustor (MWC) unit
capacity greater than 250 tons per day
of MSW, and for which construction,
reconstruction, or modification was
commenced on or before July 12, 2007.’’
The correct date is September 20, 1994.
Therefore, EPA is correcting this error
by deleting the date ‘‘July 12, 2007’’ and
inserting the correct date ‘‘September
20, 1994.’’
EPA has determined that today’s
action falls under the ‘‘good cause’’
exemption in section 553(b)(3)(B) of the
Administrative Procedure Act (APA)
which, upon finding ‘‘good cause,’’
authorizes agencies to dispense with
public participation where public notice
and comment procedures are
impracticable, unnecessary, or contrary
to the public interest. Public notice and
comment for this action are unnecessary
because today’s action to correct an
inadvertent error contained in
paragraph (a) of 40 CFR 62.2355 of the
rulemaking and has no substantive
impact on EPA’s December 30, 2010,
approval. In addition, EPA can identify
no particular reason why the public
would be interested in being notified of
the correction, or in having the
opportunity to comment on the
correction prior to this action being
finalized, since this correction action
does not change the meaning of EPA’s
analysis or action to approve the
amendment in paragraph (a) to 40 CFR
62.2355.
EPA also finds that there is good
cause under APA section 553(d)(3) for
this correction to become effective on
the date of publication of this action.
E:\FR\FM\09FER1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 27 (Thursday, February 9, 2012)]
[Rules and Regulations]
[Pages 6676-6681]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2931]
=======================================================================
-----------------------------------------------------------------------
POSTAL REGULATORY COMMISSION
39 CFR Parts 3001 and 3025
[Order No. 1171; Docket No. RM2011-13]
Appeals of Post Office Closings
AGENCY: Postal Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission is adopting a new set of rules for appeals of
post office closings. The new rules are intended to update existing
rules; foster clarity and simplicity, especially in terms of
requirements that apply to the public; and expedite the appeal process.
The rules incorporate some, but not all, of the proposed rules, as well
as some commenters' suggestions. Some proposals have been deferred to
allow time for further consideration. Adoption of a new set of rules
will improve the post office closing appeal process.
DATES: Effective Date: March 12, 2012.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
at 202-789-6820.
SUPPLEMENTARY INFORMATION: Regulatory history: 76 FR 54179 (August 31,
2011) and 76 FR 59085 (September 23, 2011).
Table of Contents
I. Introduction
II. Unopposed Rules
III. Suggested Improvements
IV. Easily Resolved Opposition
V. Substantial Opposition--Consideration Deferred
I. Introduction
On August 18, 2011, the Commission issued a notice of proposed
rulemaking.\1\ That notice was intended, in part, to simplify the rules
applicable to appeals of post office closings and consolidations and to
make the rules consistent with current practice. See Order No. 814 at
1-3. On August 25, 2011, the Commission issued a supplemental notice
proposing to remove from the current rules the requirement that the
Commission publish notice of appeals in the Federal Register.\2\
---------------------------------------------------------------------------
\1\ Notice of Proposed Rulemaking Regarding Appeals of Postal
Service Determinations to Close or Consolidate Post Offices, August
18, 2011 (Order No. 814).
\2\ Supplemental Notice Regarding Proposed Rules Governing
Appeals, August 25, 2011 (Order No. 823).
---------------------------------------------------------------------------
Some of the proposed rules generated opposition. Others were
relatively uncontroversial. The Commission finds that it will be
beneficial to promptly adopt rules that were, for the most part,
unopposed. The Commission will address the other proposed rules in a
later order. This order is organized as follows. First, proposed rules
that generated no opposition are described and adopted. Next, proposed
rules that generated suggestions for improvement are described,
modified as appropriate, and adopted or deferred for further
consideration. Third, proposed rules that generated controversy that is
easily resolved are described, modified as appropriate, and adopted.
Finally, proposed rules that generated significant opposition that
requires additional research and analysis are described and deferred to
a later date.
II. Unopposed Rules
Rules of general applicability. The Commission has proposed
amendments to rules of practice 9, 10, 12, and 17 in 39 CFR part 3001,
subpart A. These amendments are intended to ease requirements for
persons who file appeals of post office closings or consolidations but
who do not or cannot
[[Page 6677]]
use the Internet. They also correct cross-references and remove the
requirement to publish in the Federal Register notice of an appeal of a
post office closing or consolidation. The Commission confirms that it
will continue to publish on its Web site a notice of each appeal
containing the applicable procedural schedule.\3\ The proposed
amendments to rules 9, 10, 12, and 17 in 39 CFR part 3001, subpart A
are unopposed and are adopted as proposed. The Commission also amends
rule 3001.7(b) to replace the words ``Subpart H'' with ``Part 3025''.
Rule 7(b) would be incorrect if not amended, which constitutes good
cause under 5 U.S.C. 553(d)(3) for not publishing proposed notice of
this amendment.\4\
---------------------------------------------------------------------------
\3\ See Initial Comments of the United States Postal Service,
October 3, 2011, at 25 (Postal Service Comments).
\4\ Comments of the Public Representative, October 3, 2011, at
7-8 (PR Comments).
---------------------------------------------------------------------------
Consolidation of appeals. Proposed rule 3025.12 explains that the
Commission consolidates appeals relating to the same post office into a
single docket. This rule is unopposed. Rule 3025.12 is adopted as
proposed.
Participant statement. Proposed rule 3025.40, which describes
participant statements (Form 61), is unopposed. It is adopted as
proposed.
III. Suggested Improvements
Rules of general applicability. The Public Representative suggests
a change to rule 3001.5(m) as well as changes to the list of rules of
general applicability contained in proposed rule 3025.2(b).\5\ Rule
5(m) defines the word ``Appellant.'' Proposed Part 3025 uses the word
``Petitioner'' instead of ``Appellant.'' Rule 5(m) is hereby amended
accordingly. Proposed rule 3025.2(b) makes rule 3001.11 applicable in
appeal proceedings. Rule 11(b) refers to notices of intervention, which
are no longer required under proposed part 3025. Interested persons may
file comments without first intervening. Rule 11(g) concerns
certificates of service for documents filed as hard copy. Amended rule
12 provides that the Secretary will serve hard-copy documents filed by
participants in appeals cases. There is thus no need to refer to rules
11(b) and 11(g) in proposed rule 3025.2(b).
---------------------------------------------------------------------------
\5\ American Postal Workers Union, AFL-CIO Comments on Proposed
Rules, October 5, 2011, at 2-4 (APWU Comments).
---------------------------------------------------------------------------
The Public Representative also suggests that participants in
appeals be given 14 days to respond to Postal Service motions and
briefs rather than the 7 days allowed by rule 3001.20(b) and proposed
rule 3025.43. This is based on the expectation that many, if not most,
participants will be corresponding with the Commission by mail rather
than using the Internet. Seven days does appear to be inadequate. Most
of the 7 days could easily be consumed in transit to and from a
participant. However, the proposed rules are also intended to expedite
Commission consideration of appeals. Order No. 814 at 5. A 14-day
response time, especially for motions to dismiss, could necessitate
revisions to the procedural schedule. Under the Public Representative's
proposed change, responses to motions to dismiss would be due 14 days
after their filing, while participant statements are due 20 days after
the filing of such motions.
Proposed rule 3025.41. Ten days will be allowed for the response to
Postal Service motions and briefs.
Definitions. The Public Representative suggests moving the
definition of ``Petition for Review'' from proposed rule 3025.10(a) to
the definitions section, proposed rule 3025.1. PR Comments at 6. That
suggestion is adopted. The Public Representative also proposes
additions to the definition of ``Petition for Review,'' such as
permissible and impermissible modes of submission. This topic is
covered in proposed rule 3025.11.
Applicability. Rule 3025.2, as proposed, explains when the rules in
part 3025 apply. It also sets out rules in part 3001 that apply to
appeals. The Postal Service suggests changing the phrase ``wants to
appeal'' in proposed rule 3025.2(a)(2) to ``appeals.'' Postal Service
Comments at 2-7, 13-19, 21. This change is adopted.
Petitions for Review. The Postal Service and the Public
Representative suggest changes to proposed rule 3025.10. Postal Service
Comments, Appendix at iv; PR Comments, Attachment A at 2-3. This rule
explains what information must be included in a Petition for Review.
The Public Representative suggests that a Petition for Review include a
petitioner's phone number, the ZIP Code of the post office involved,
and the final determination. The Postal Service suggests that a
Petition for Review include the date on which the final determination
was posted. One of the purposes of the proposed rules is to reduce the
burden involved in filing an appeal. See Order No. 814 at 2.
Consideration of these suggestions is deferred. Rule 3025.10 is adopted
as proposed except for the addition of the word ``only'' between
``appealed'' and ``by.'' This tracks the statutory requirement that a
petitioner be served by the office to be closed or consolidated.
Proposed rule 3025.11 explains how to submit a Petition for Review
to the Commission. The Public Representative proposes changes to rule
11. PR Comments, Attachment A at 3. The Public Representative proposes
that the means of submission of appeals set out in rule 11 apply to all
documents submitted by participants other than the Postal Service. Rule
3025.11 is adopted as modified by the Public Representative.
Rule 3025.13, as proposed, explains when a Petition for Review is
considered timely. The statutory deadline for an appeal is 30 days from
a final determination's being made available to patrons. The exact
deadline depends on whether a petition is mailed, filed electronically,
or delivered by someone other than the Postal Service. The Postal
Service and the Public Representative suggest changing the event that
triggers the running of the 30 days from the day the final
determination is made available, to the date of posting of the final
determination. Postal Service Comments, Appendix at v; PR Comments at
3-4. The phrase ``made available'' is the statutory description.
Consideration of this proposed change is deferred. Rule 13 is adopted
as proposed.
Record on review. Rule 3025.20, as proposed, describes the material
that the Commission considers when reaching a decision on an appeal.
Rules 20(a)(1) through (4) are adopted as proposed and designated as
paragraph (a). The Postal Service objects to proposed rule 20(a)(5) and
to the sentence that follows, both of which concern the Commission's
treatment of factual matters. Postal Service Comments at 17-18, 21-22.
Consideration of those proposals is deferred. The sentence in current
rule 3001.112 that limits the record to all and only evidence
considered by the Postal Service is retained as paragraph (b).
Administrative record. Proposed rule 3025.21 requires the Postal
Service to notify participants who do not use Filing Online when the
administrative record is filed with the Commission. The Postal Service
points out that the administrative record is available at affected post
offices while a proposal to close is under consideration and when a
final determination to close is under appeal. Id. at 26-27. The Postal
Service suggests that the Commission include information on the
location of administrative records in the orders establishing
procedural schedules or in the letters transmitting Form 61 to
participants. Id. at 27, n.18. Proposed rule 3025.21 is amended to make
the
[[Page 6678]]
Secretary responsible for informing participants that the
administrative record is available at the post office(s) where the
final determination was posted.
Posting of filings during appeal. Proposed rule 3025.22 requires
the Postal Service to maintain for public inspection copies of all
filings related to an appeal at the post office whose closure or
consolidation is under review. If the post office is suspended, the
filings are to be maintained at the nearest open post office. Also, the
Postal Service is to notify participants by mail where the filings may
be inspected. The Postal Service points out that its own regulations
require posting the filings in the same locations where the
administrative record is available--i.e., where the final determination
was posted. Id. at 27. Rule 22 is amended to make the Secretary
responsible for informing participants that all filings related to an
appeal are available at the post office(s) where the final
determination was posted.
IV. Easily Resolved Opposition
Participation by others. For the most part, the Commission is
deferring consideration of proposed rules that generated opposition.
One exception is proposed rule 3025.14(a), which defines the class of
persons who may participate in an appeal initiated by someone else.
This proposed rule is the analog of current rule 3001.111(b).
The purposes of rule 14(a), as proposed, are: (1) To remove the
requirement for filing notices of intervention, and (2) to simplify
language. The Postal Service reads proposed rule 14(a) as expanding the
class of persons who may participate in an appeal. Postal Service
Comments at 20 (as revised October 7, 2011). American Postal Workers
Union (APWU) reads proposed rule 14 as narrowing the class of persons
who may participate in an appeal.\6\ In addition to persons served by a
post office to be closed or consolidated, current rule 111(b) allows
``any other interested person, or any counsel, agent or other person
authorized or recognized by the Postal Service as such interested
person's representative or the representative of such interested
person's recognized group, such as Postmasters'' to intervene in an
appeal (emphasis added). Proposed rule 14(a) intended no change in the
class of persons currently allowed to intervene. The language of
current rule 3001.111(b) will be retained as rule 14(a).
---------------------------------------------------------------------------
\6\ See section 404(d)(5)--American Postal Workers Union, AFL-
CIO Comments on Proposed Rules, October 5, 2011, at 2-4 (APWU
Comments).
---------------------------------------------------------------------------
Filing deadlines. Rules 3025.41 through 43, as proposed, set
deadlines for participant statements, briefs, or comments. The Postal
Service objects to categorizing participants as supporting either the
Postal Service or the petitioner. It asks, ``[a]re participants
supposed to decide what due date to use based on their alignment with
or against the Postal Service regarding a particular issue, the
ultimate issue, or some combination?'' Postal Service Comments at 23.
The wording of these rules will be changed to categorize participants
as either supporting or opposing a Commission order that the entire
matter be returned to the Postal Service for further consideration.
Rule 3025.14(b), as proposed, is also changed to categorize
comments as supporting or opposing an order returning the matter for
further consideration.\7\
---------------------------------------------------------------------------
\7\ See section 404(d)(5) (``The Commission may affirm the
determination of the Postal Service or order that the entire matter
be returned for further consideration, but the Commission may not
modify the determination of the Postal Service.'')
---------------------------------------------------------------------------
Oral argument. The proposed rules do not include a provision for
oral argument. As was explained in the notice of proposed rulemaking,
the Commission has never held oral argument in an appeal proceeding.
Order No. 814 at 6. Oral argument would also extend the time needed to
decide an appeal, which the new rules are intended to shorten. See id.
at 5. APWU requests preservation of the right to appeal in unusual
situations. APWU Comments at 4. Participants in appeal proceedings may
request oral argument or any other relief pursuant to rule 3001.21(a)
(Motions) when circumstances warrant.
V. Substantial Opposition--Consideration Deferred
Definitions. Rule 3025.1 (Definitions), as proposed, has been
changed by removing definitions of the terms ``administrative record,''
``post office,'' and ``relocate'' and by adding the definition of
``Petition for Review.'' Proposed rule 3025.1 defines ``administrative
record'' as ``all documents and materials created by the Postal Service
or made available by the public to the Postal Service for its review in
anticipation of the action for which review is sought.'' It defines
``post office'' as ``a Postal Service operated retail facility.'' It
defines ``relocate'' to mean a situation in which ``the location of a
post office within a community changes, but the total number of post
offices within the community remains the same or increases.''
The Postal Service objects to the definitions of ``administrative
record'' and ``post office'' as overbroad and to the definition of
``relocate'' as too narrow. Postal Service Comments at 2-7, 13-19, 21.
Valpak objects to the definition of ``post office'' as overbroad.\8\
APWU objects to the definition of ``relocate'' as overbroad. APWU
Comments at 1-2. Consideration of these proposed definitions is
deferred.
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\8\ Valpak Direct Marketing Systems, Inc. and Valpak Dealers'
Association, Inc. Comments Regarding Proposed Rules Applicable to
Appeals of Post Office Closings, October 3, 2011, at 4-5 (Valpak
Comments).
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Notice. Proposed rule 3025.3 requires the Postal Service to post
notice of proposals and final determinations to close or consolidate a
post office. It also requires the Postal Service to mail such notices
to patrons of suspended offices. The Postal Service and Valpak object
to this rule. They claim that the Commission has no authority to
regulate Postal Service actions that occur before an appeal has been
filed. Postal Service Comments at 7-11; Valpak Comments at 5-7.
Consideration of proposed rule 3025.3 is deferred. Two sentences from
current rule 3001.110 setting out existing notice requirements, with
minor editorial corrections to accurately state statutory language are
retained as rules 3025.3(a) through (b).
Automatic suspension. Rule 3025.30, as proposed, would replace
current rule 3001.114 and automatically suspend a final determination
to close or consolidate a post office when a timely appeal is filed.
The Postal Service and Valpak object to this proposed rule as ultra
vires. Postal Service Comments at 11-13; Valpak Comments at 7-8.
Consideration of this proposal is deferred. The language of current
rule 3001.114 related to suspension pending review is retained as rule
3025.30, except that a sentence referring to notices of intervention
and a sentence referring to the filing of the record are deleted.
It is ordered:
1. Changes to part 3001 of title 39, chapter III, Code of Federal
Regulations, as set forth below, are hereby adopted, effective 30 days
after publication in the Federal Register.
2. A new part 3025 of title 39, chapter III, Code of Federal
Regulations, as set forth below, is hereby adopted, effective 30 days
after publication in the Federal Register.
3. The Secretary shall arrange for publication of this order in the
Federal Register.
[[Page 6679]]
List of Subjects
39 CFR Part 3001
Administrative practice and procedure, Freedom of information,
Postal Service, Sunshine Act.
39 CFR Part 3025
Administrative practice and procedure, Postal Service.
By the Commission.
Issued: January 25, 2012.
Ruth Ann Abrams,
Secretary.
For the reasons discussed in the preamble, the Postal Regulatory
Commission amends chapter III of title 39 of the Code of Federal
Regulations as follows.
PART 3001--RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 3001 continues to read as follows:
Authority: 39 U.S.C. 404(d); 503; 504; 3661.
Subpart A--Rules of General Applicability
0
2. In Sec. 3001.5, revise paragraph (m) to read as follows:
Subpart A--Rules of General Applicability
Sec. 3001.5 Definitions.
* * * * *
(m) Petitioner means a person who as permitted by 39 U.S.C. 404(b)
appeals to the Commission a determination of the Postal Service to
close or consolidate a post office.
* * * * *
0
3. In Sec. 3001.7, revise paragraph (b) introductory text to read as
follows:
Sec. 3001.7 Ex parte communications.
* * * * *
(b) Prohibition. In any agency proceeding that is required to be
conducted in accordance with section 556 of Title 5 or a proceeding
conducted pursuant to part 3025 of this chapter except to the extent
required for the disposition of ex parte matters as authorized by law:
* * * * *
0
4. In Sec. 3001.9, revise paragraph (a) to read as follows:
Sec. 3001.9 Filing of documents.
(a) Filing with the Commission. The filing of each written document
required or authorized by these rules or any applicable statute, rule,
regulation, or order of the Commission, or by direction of the
presiding officer, shall be made using the Internet (Filing Online)
pursuant to Sec. 3001.10(a) at the Commission's Web site (https://www.prc.gov), unless a waiver is obtained. If a waiver is obtained, a
hard copy document may be filed either by mailing or by hand delivery
to the Office of the Secretary, Postal Regulatory Commission, 901 New
York Ave., NW., Suite 200, Washington, DC 20268-0001 during regular
business hours on a date no later than that specified for such filing.
The requirements of this section do not apply to participants other
than the Postal Service in proceedings conducted pursuant to part 3025
of this chapter.
* * * * *
0
5. In Sec. 3001.10, revise paragraph (b) and add new paragraph (d) to
read as follows:
Sec. 3001.10 Form and number of copies of documents.
* * * * *
(b) Hard copies. Each document filed in paper form must be produced
on letter-size paper, 8 to 8\1/2\ inches wide by 10\1/2\ to 11 inches
long, with left- and right-hand margins not less than 1 inch and other
margins not less than .75 inches, except that tables, charts or special
documents attached thereto may be larger if required, provided that
they are folded to the size of the document to which they are attached.
If the document is bound, it shall be bound on the left side. Copies of
documents for filing and service must be printed from a text-based pdf
version of the document, where possible. Otherwise, they may be
reproduced by any duplicating process that produces clear and legible
copies. Each person filing a hardcopy document with the Commission must
provide an original and two fully conformed copies of the document
required or permitted to be filed under this part, except for a
document filed under seal, for which only the original and two (2)
copies need be filed. The copies need not be signed but shall show the
full name of the individual signing the original document and the
certificate of service attached thereto.
* * * * *
(d) Exception for appeals of post office closings and
consolidations. The requirements of this section do not apply to
participants other than the Postal Service in proceedings conducted
pursuant to part 3025 of this chapter.
0
6. In Sec. 3001.12, add new paragraph (a)(3) to read as follows:
Sec. 3001.12 Service of documents.
(a) * * *
(3) In proceedings conducted pursuant to part 3025 of this chapter,
the Secretary will serve documents (except an administrative record) on
participants who do not use Filing Online. Service will be by First-
Class Mail.
* * * * *
0
7. Revise Sec. 3001.17 to read as follows:
Sec. 3001.17 Notice of proceeding.
(a) When issued. The Commission shall issue a notice of a
proceeding to be determined on the record with an opportunity for any
interested person to request a hearing whenever:
(1) The Postal Service files a request with the Commission to issue
an advisory opinion on a proposed change in the nature of postal
services which will generally affect service on a nationwide or
substantially nationwide basis;
(2) The Commission in the exercise of its discretion determines
that an opportunity for hearing should be provided with regard to a
complaint filed pursuant to part 3030 of this chapter; or
(3) The Commission in the exercise of its discretion determines it
is appropriate.
(b) Publication and service of notice. Each notice of proceeding
shall be published in the Federal Register and served on the Postal
Service, and the complainant in a complaint proceeding.
(c) Contents of notice. The notice of a proceeding shall include
the following:
(1) The general nature of the proceeding involved in terms of
categories listed in paragraph (a) of this section;
(2) A reference to the legal authority under which the proceeding
is to be conducted;
(3) A concise description of proposals for changes in rates or
fees, proposals for the establishment of or changes in the mail
classification schedule, proposals for changes in the nature of postal
services and, in the case of a complaint, an identification of the
complainant and a concise description of the subject matter of the
complaint;
(4) The date by which notices of intervention and requests for
hearing must be filed; and
(5) Such other information as the Commission may desire to include
Subpart H--[Removed and Reserved]
0
8. Remove and reserve Subpart H, consisting of Sec. Sec. 3001.110
through 3001.117.
0
9. Add part 3025, to read as follows:
[[Page 6680]]
PART 3025--RULES FOR APPEALS OF POSTAL SERVICE DETERMINATIONS TO
CLOSE OR CONSOLIDATE POST OFFICES
Sec.
3025.1 Definitions.
3025.2 Applicability.
3025.3 Notice by the Postal Service.
3025.10 Starting an appeal.
3025.11 Submitting an appeal and other documents.
3025.12 Duplicate appeals.
3025.13 Deadlines for appeals.
3025.14 Participation by others.
3025.20 The record on review.
3025.21 Filing of the administrative record.
3025.22 Making documents available for inspection by the public.
3025.30 Suspension pending review.
3025.40 Participant statement.
3025.41 Due date for participant statement.
3025.42 Due date for Postal Service response.
3025.43 Due date for replies to the Postal Service.
Authority: 39 U.S.C. 404(d).
Sec. 3025.1 Definitions.
The following definitions apply in this part:
(a) Final determination means the written determination and
findings required by 39 U.S.C. 404(d)(3).
(b) Petitioner means a person who files a Petition for Review.
(c) Petition for Review means a written document that the
Commission accepts as an appeal of a post office closing or
consolidation.
Sec. 3025.2 Applicability.
(a) The rules in this part apply when:
(1) The Postal Service decides to close or consolidate a post
office, and
(2) A patron of that post office appeals the closing or
consolidation.
(b) The following sections in part 3001, subpart A of this chapter,
apply to appeals of post office closings or consolidations: Sec. Sec.
3001.1 through 3001.9 of this chapter; Sec. 3001.11(a) of this
chapter, Sec. 3001.11(c) through (f) of this chapter; Sec. Sec.
3001.12 through 3001.17 of this chapter; and Sec. Sec. 3001.21 and
3001.22 of this chapter.
(c) Answers to motions filed by the Postal Service are due within
10 days. Sec. 3025.3 Notice by the Postal Service.
(a) Pursuant to section 404(d) of title 39, United States Code, any
decision to close or consolidate a post office must be preceded by 60
days' notice to persons served by such post office, the opportunity for
such persons to present their views, and a written determination based
upon consideration of each of the factors listed in section 404(d)(2)
of title 39, United States Code.
(b) This notice must include a provision stating that, pursuant to
section 404(d)(5) of title 39, United States Code, a final Postal
Service determination to close or consolidate a post office may be
appealed by any person served by such office to the Postal Regulatory
Commission at 901 New York Avenue NW., Suite 200, Washington, DC 20268-
0001, within 30 days after such determination is made available to such
person by the Postal Service.
Sec. 3025.10 Starting an appeal.
(a) A Postal Service decision to close or consolidate a post office
may be appealed only by a person served by that office. An appeal is
commenced by submitting a Petition for Review to the Postal Regulatory
Commission.
(b) The Petition for Review must state that the person(s)
submitting it is/are served by the post office that the Postal Service
has decided to close or consolidate. The petition should include the
name(s) and address(es) of the person(s) filing it and the name or
location of the post office to be closed or consolidated. A petitioner
may include other information deemed pertinent.
Sec. 3025.11 Submitting an appeal and other documents.
Petitions for Review, comments, motions, answers, and other
documents may be submitted by persons other than the Postal Service by
mail, electronically through the Commission's Web site, https://www.prc.gov, or by delivery to the Commission's offices at 901 New York
Avenue NW., Suite 200, Washington, DC 20268-0001.
Sec. 3025.12 Duplicate appeals.
If the Commission receives more than one Petition for Review of the
same post office closing or consolidation, the petitions will be
considered in a single docket.
Sec. 3025.13 Deadlines for appeals.
(a) In general. If the Postal Service has issued a final
determination to close or consolidate a post office, an appeal is due
within 30 days of the final determination being made available in
conformance with Sec. 3025.3(b).
(b) Appeals sent by mail. If sent by mail, a Petition for Review
must be postmarked no later than 30 days after the final determination
has been made available.
(c) Appeals sent by other physical delivery. If sent by some other
form of physical delivery, a Petition for Review must be received in
the Commission's Docket Section no later than 4:30 p.m., eastern time,
on the 30th day after the final determination has been made available.
(d) Appeals sent electronically. If submitted electronically, a
Petition for Review must be received in the Commission's Docket Section
no later than 4:30 p.m., eastern time, on the 30th day after the final
determination has been made available.
Sec. 3025.14 Participation by others.
(a) A person served by the post office to be closed or consolidated
pursuant to the Postal Service written determination under review who
desires to intervene in the proceeding, or any other interested person,
or any counsel, agent, or other person authorized or recognized by the
Postal Service as such interested person's representative or the
representative of such interested person's recognized group, such as
Postmasters, may participate in an appeal by sending written comments
to the Postal Regulatory Commission in the manner described in Sec.
3025.11.
(b) Persons may submit comments supporting or opposing a Commission
order returning the entire matter to the Postal Service for further
consideration. Comments must be filed in accordance with the deadlines
established in Sec. Sec. 3025.41 through 3025.43. Commenters may use
PRC Form 61, which is available on the Commission's Web site, https://www.prc.gov.
Sec. 3025.20 The record on review.
(a) The record on review includes:
(1) The final determination;
(2) The notices to persons served by the post office to be closed
or consolidated;
(3) The administrative record; and
(4) All documents submitted in the appeal proceeding.
(b) The record shall contain all evidence considered by the Postal
Service in making its determination and shall contain no evidence not
previously considered by the Postal Service.
Sec. 3025.21 Filing of the administrative record.
The Postal Service shall file the administrative record within 10
days of the date of posting of a Petition for Review on the
Commission's Web site. The Commission may alter this time for good
cause. The Secretary will notify participants that they may view the
administrative record at post offices where the final determination was
posted.
Sec. 3025.22 Making documents available for inspection by the public.
Copies of all filings (including the administrative record) related
to an appeal shall be available for public inspection at the post
offices where the
[[Page 6681]]
final determination was posted. The Secretary will notify participants
that they may view copies of filings at post offices where the final
determination was posted.
Sec. 3025.30 Suspension pending review.
(a) Application. Application for suspension of a determination of
the Postal Service to close or consolidate any post office pending the
outcome of an appeal to the Postal Regulatory Commission shall be made
at the time of the filing of a Petition for Review. The application
shall show the reasons for the relief requested and the facts relied
upon, and if the facts are subject to dispute the application shall be
supported by affidavits or other sworn statements or copies thereof.
The applicant must be a person served by the affected post office.
Immediate notice of the application shall be given to all parties to
the proceeding. The application shall be filed with the Secretary of
the Commission.
(b) Answer and filing of the relevant record by the Postal Service.
Within 10 days after the application for suspension is filed, the
Postal Service shall file with the Secretary of the Commission and
serve on the petitioners an answer to the application supported by
affidavits or other sworn statements or copies thereof.
Sec. 3025.40 Participant statement.
(a) When a timely Petition for Review of a decision to close or
consolidate a post office is filed, the Secretary shall furnish
petitioner with a copy of PRC Form 61. This form is designed to inform
petitioners on how to make a statement of his/her arguments in support
of the petition.
(b) The instructions for PRC Form 61 shall provide:
(1) A concise explanation of the purpose of the form;
(2) A copy of section 404(d)(2)(A) of title 39, United States Code;
and
(3) Notification that, if petitioner prefers, he or she may file a
brief in lieu of or in addition to completing PRC Form 61.
Sec. 3025.41 Due date for participant statement.
The statement or brief of petitioner and of any other participant
seeking to have the Commission return the entire matter to the Postal
Service for further consideration, shall be filed not more than 20 days
after the filing of the administrative record.
Sec. 3025.42 Due date for Postal Service response.
The statement or brief of the Postal Service, and of any other
participant opposing return of the matter for further consideration,
shall be filed not more than 14 days after the date for filing of
petitioner's statement.
Sec. 3025.43 Due date for replies to the Postal Service.
Petitioner, and any other participant seeking to have the
Commission return the matter for further consideration, may file a
reply to the Postal Service response not more than 10 days after the
date of the Postal Service response. Replies are limited to issues
discussed in the responses of the Postal Service and other participants
seeking affirmation of the Postal Service determination.
[FR Doc. 2012-2931 Filed 2-8-12; 8:45 am]
BILLING CODE 7710-FW-P
