[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14927]


[[Page Unknown]]

[Federal Register: June 20, 1994]


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POSTAL SERVICE

39 CFR Part 953

 

Rules of Practice in Proceedings Relative to Mailability

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: This rule revises the procedures for appealing non-mailability 
determinations, to update, clarify, amplify, and otherwise improve 
them.

EFFECTIVE DATE: June 20, 1994.

FOR FURTHER INFORMATION CONTACT: Donna Aspell, (202) 268-5438.

SUPPLEMENTARY INFORMATION: A recent review of the procedural rules in 
39 CFR part 953 has revealed several references that require updating 
and several provisions that require some rewording for further clarity. 
Moreover, the review has revealed that the rules could be improved by 
expressing heretofore implicit requirements (e.g., in Sec. 953.17, the 
requirement to give the Postal Service's General Counsel notice and the 
opportunity to respond when the appellant seeks return of matter found 
to be nonmailable); by amplifying requirements that were incompletely 
expressed (e.g., in Sec. 953.4, specifying the steps required for 
effecting service of notice when the appellant's address is outside the 
United States; and in Sec. 953.16, specifying ways in which the hearing 
process may be expedited); and by expressly authorizing summary 
judgment to dispose of cases presenting no genuine and material issues 
of fact.
    Most of the sections in part 953 have been changed or modified. 
Section 953.5, concerning the reply to be made by the General Counsel, 
is moved to Sec. 953.4; the sections following the expanded Sec. 953.4 
are consequently renumbered. The text of Sec. 953.1, concerning 
authority for the rules, Sec. 953.14, concerning appeal from an initial 
decision, and Sec. 953.18, concerning ex parte communications, is 
carried forward unchanged in the revised rules.

List of Subjects in 39 CFR Part 953

    Administrative practice and procedure, Mailability, Postal Service.

    Accordingly, the Postal Service revises 39 CFR part 953 to read as 
set forth below:

PART 953--RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO MAILABILITY

Sec.
953.1  Authority of rules.
953.2  Initiation.
953.3  Appeal.
953.4  Service of notice; Reply; Motion for summary judgment.
953.5  Hearings.
953.6  Compromise and informal dispositions.
953.7  Default; Appearances.
953.8  Location of hearing.
953.9  Change of place of hearing.
953.10  Presiding officers.
953.11  Proposed findings of fact and conclusions of law.
953.12  Initial decision.
953.13  Appeal from initial decision.
953.14  Final Agency decision.
953.15  Expedition.
953.16  Disposition.
953.17  Exparte communications.

    Authority: 39 U.S.C. 204, 401.


Sec. 953.1  Authority for rules.

    These rules of practice are issued by the Judicial Officer of the 
U.S. Postal Service pursuant to authority delegated by the Postmaster 
General.


Sec. 953.2  Initiation.

    Mailability proceedings are initiated upon the filing of a written 
appeal with the Recorder, Judicial Officer Department, U.S. Postal 
Service, 475 L'Enfant Plaza, SW., Washington, DC 20260-6100.


Sec. 953.3  Appeal.

    The appeal shall:
    (a) Identify the appellant;
    (b) Describe or be accompanied by a copy of the determination or 
ruling being appealed;
    (c) Describe the character or content of the matter the appellant 
wishes to have carried and delivered by the U.S. Postal Service;
    (d) Request review of the determination or ruling, specifying each 
and every reason why the appellant believes the determination or ruling 
should be reversed;
    (e) Indicate whether the appellant desires to have an oral hearing 
or, instead, to have the case decided solely on the basis of the 
written record (i.e., the appeal, the General Counsel's reply, and any 
documents submitted by the parties pursuant to an order of the 
presiding officer); and
    (f) Bear the signature, typed or printed name, title, business 
address, and telephone number of any attorney at law representing the 
appellant in bringing the appeal, and of each individual appellant or, 
if the appellant is a partnership, corporation, limited liability 
company, or unincorporated association, of the managing partner, chief 
executive officer, chief operating officer, or other officer authorized 
to bind the organization.


Sec. 953.4  Service of notice; Reply; Motion for summary judgment.

    (a) Service of notice. (1) Upon receiving the appeal, the Recorder 
shall issue a notice specifying that the Postal Service General 
Counsel's reply shall be filed within 15 days of receipt of the notice; 
and the time and place of the hearing (if one was requested).
    (2) The Recorder shall promptly serve this notice on the parties as 
follows:
    (i) The notice, with a copy of the appeal, shall be sent to the 
General Counsel at Postal Service headquarters.
    (ii) When the appellant's address is within the United States, the 
notice, with a copy of the appeal, shall be sent to the postmaster at 
the office that delivers mail to the appellant's address. The 
postmaster shall be instructed that, acting personally or through a 
supervisory employee or a postal inspector, he or she is to serve these 
documents on the appellant. If the appellant cannot be found within 3 
days, the postmaster shall send these documents to the appellant by 
ordinary mail and forward a statement to the Recorder that is signed by 
the delivering employee and that specifies the time and place of 
delivery.
    (iii) When the appellant's address is outside the United States, 
the notice, with a copy of the appeal, shall be sent to the appellant 
by registered airmail, return receipt requested. A written statement by 
the Recorder, noting the time and place of mailing, shall be accepted 
as proof of service in the event a signed and dated return receipt is 
not received.
    (b) Reply. The General Counsel shall file a written reply, in 
triplicate, with the Recorder, within the aforementioned 15-day period 
or any extension granted by the presiding officer for good cause shown. 
If the General Counsel's reply fails to address any allegation in the 
appeal, that allegation shall be deemed admitted.
    (c) Motion for summary judgment. Upon motion of either the General 
Counsel or the appellant, or on the presiding officer's own initiative, 
the presiding officer may find that the appeal and answer present no 
genuine and material issues of fact requiring an evidentiary hearing, 
and thereupon may render an initial decision upholding or reversing the 
determination or ruling. The initial decision shall become the final 
Agency decision if a timely appeal is not taken.


Sec. 953.5  Hearings.

    (a) In general, admissibility of evidence at hearings conducted 
under this part hinges 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, or by needless presentation of cumulative evidence. 
Testimony shall be given under oath or affirmation, and witnesses are 
subject to cross-examination. Stipulations of fact are encouraged and 
may be received in evidence.
    (b) Objections to the admission or exclusion of evidence shall be 
in short form, stating the grounds of objections relied upon. The 
transcript shall not include argument or debate thereon except as 
ordered by the presiding officer. Rulings on such objections shall be a 
part of the transcript.
    (c) Formal exceptions to the rulings of the presiding officer made 
during the course of the hearing are unnecessary. For all purposes for 
which an exception otherwise would be taken, it is sufficient that a 
party, when the ruling of the presiding officer is made or sought, 
makes known the action he desires the presiding officer to take or his 
objection to an action taken, and his grounds therefor.


Sec. 953.6  Compromise and informal dispositions.

    Either party may request the other to consider informal disposition 
of any question of mailability, and the scheduled hearing date may be 
postponed by the presiding officer for such period of time as may be 
necessary to accommodate settlement discussions between the parties.


Sec. 953.7  Default; Appearances.

    If a timely reply to the appeal is not filed, the presiding officer 
shall refer the appeal to the Judicial Officer, who may find that the 
General Counsel is in default. Whenever the General Counsel has been 
deemed to be in default, the Judicial Officer shall take whatever 
action on the appeal he deems appropriate. If an oral evidentiary 
hearing is to be held, the appellant may appear at the hearing in 
person or by counsel. If either party fails to appear at the hearing, 
the presiding officer shall receive the evidence of the party appearing 
and render a decision.


Sec. 953.8  Location of hearing.

    Unless otherwise ordered by the presiding officer, the hearing 
shall be held at Postal Service headquarters, 475 L'Enfant Plaza, SW., 
Washington, DC, on the date set in the notice.


Sec. 953.9  Change of place of hearing.

    (a) Not later than the date fixed for the filing of the reply, a 
party may file a motion that the scheduled hearing be held at a place 
other than that designated in the notice. The motion shall include a 
supporting statement outlining:
    (1) The evidence to be offered in such place;
    (2) The names and addresses of the witnesses who will testify; and
    (3) The reasons why such evidence cannot be presented in 
Washington, DC.
    (b) In ruling on the motion, the presiding officer shall consider 
the convenience and necessity of the parties and the relevancy of the 
evidence to be offered.


Sec. 953.10  Presiding officers.

    The presiding officer at any hearing shall be an Administrative Law 
Judge qualified in accordance with law (5 U.S.C. 3105) and assigned by 
the Judicial Officer (39 U.S.C. 204), or the Judicial Officer, may at 
his discretion, elect to preside at the reception of evidence. The 
Judicial Officer shall assign cases to Administrative Law Judges upon 
rotation if practicable.


Sec. 953.11  Proposed findings of fact and conclusions of law.

    Proposed findings of fact and conclusions of law shall be submitted 
orally or in writing at the conclusion of the hearing, or otherwise, as 
ordered by the presiding officer.


Sec. 953.12  Initial decision.

    Unless given orally at the conclusion of the hearing, the 
Administrative Law Judge shall render an initial decision as 
expeditiously as practicable after the conclusion of the hearing and 
the receipt of the proposed findings and conclusions, if any. The 
initial decision shall become the decision of the Postal Service if an 
appeal is not perfected. When the Judicial Officer presides at the 
hearing, his powers shall include those of an Administrative Law Judge, 
but the Judicial Officer may render either an initial or final 
decision. Exceptions may be filed to an initial decision rendered by 
the Judicial Officer in accordance with Sec. 953.13.


Sec. 953.13  Appeal from initial decision.

    Either party may file exceptions in a brief on appeal to the 
Judicial Officer within 5 days after receipt of the initial decision 
unless additional time is granted. A reply brief may be filed within 5 
days after the receipt of the appeal brief by the opposing party.


Sec. 953.14  Final Agency decision.

    The Judicial Officer shall render a final Agency decision. The 
decision shall be served upon the parties and the postal official 
having custody of any mail detained pursuant to the determination or 
ruling.


Sec. 953.15  Expedition.

    For the purpose of further expedition, either party may move to 
have the hearing held at an earlier date than that specified in the 
notice. Either party may also move to have the initial decision (if an 
Administrative Law Judge or the Judicial Officer is presiding) or the 
final Agency decision (if the Judicial Officer is presiding) rendered 
orally at the conclusion of the hearing. The presiding officer may 
grant or deny any such motion. The parties may, with the concurrence of 
the Judicial Officer, agree to waive any of the procedures established 
in these rules.


Sec. 953.16  Disposition.

    Mail matter found to be nonmailable shall be held at the post 
office where detained for a period of 15 days from the date of the 
Postal Service decision, unless that period is extended by the Judicial 
Officer. During this holding period, the appellant may apply for the 
withdrawal of the matter. If any such application is made, the General 
Counsel shall be given notice and the opportunity to oppose the 
application. Upon the expiration of the holding period with no 
application having been made, the Judicial Officer shall order that the 
matter be disposed of in accordance with 39 U.S.C. 3001(b). If a timely 
application is made, the Judicial Officer shall consider the 
application and any reasons advanced by the General Counsel for denying 
the application. The Judicial Officer shall thereafter order either 
that the matter be returned to the applicant or that it be disposed of 
in accordance with 39 U.S.C. 3001(b).


Sec. 953.17  Ex parte communications.

    The provisions of 5 U.S.C. 551(14), 556(d), and 557(d) prohibiting 
ex parte communications are made applicable to proceedings under these 
rules of practice.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 94-14927 Filed 6-15-94; 4:38 pm]
BILLING CODE 7710-12-P