[Federal Register Volume 65, Number 99 (Monday, May 22, 2000)]
[Rules and Regulations]
[Pages 32026-32028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12784]


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POSTAL SERVICE

39 CFR Part 952


Rules of Practice in Proceedings Relative to False Representation 
and Lottery Orders

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: This final rule amends the Rules of Practice in Proceedings 
Relative to False Representation and Lottery Orders to establish 
administrative procedures for issuing subpoenas and imposing the 
statutorily authorized civil penalties in proceedings conducted under 
39 U.S.C. 3005(a).

EFFECTIVE DATE: May 22, 2000.

FOR FURTHER INFORMATION CONTACT: Diane M. Mego, Esq., (703) 812-1905.

SUPPLEMENTARY INFORMATION: On March 14, 2000, the Postal Service 
published in the Federal Register a proposed rule to amend the Rules of 
Practice in Proceedings Relative to False Representation and Lottery 
Orders (65 FR 13707-13709). The proposed rule implements The Deceptive 
Mail Prevention and Enforcement Act, Pub. L. 106-168, 113 Stat. 1806, 
enacted on December 12, 1999, which grants the Judicial Officer 
authority to issue subpoenas requiring the attendance and testimony of 
witnesses and the production of any records (including books, papers, 
documents, and other tangible things which constitute or contain 
evidence) which the Judicial Officer considers relevant or material in 
any statutory proceeding conducted under 39 U.S.C. 3005(a). The Act 
also authorizes new administrative civil penalties.
    Comments on the proposed rule were due on or before April 13, 2000. 
Two comments were received. One commenter was concerned that the 
proposed time limits for requesting a subpoena do not give the 
subpoenaed party a reasonable opportunity to comply with a document 
request or to appear at the hearing. The proposed time limits are 
consistent with the time limits already provided in part 952 and, 
therefore, have not been revised in this final rule. However, the rule 
recognizes the possibility that further time may be needed, and the 
presiding officer, at his discretion, may waive the time limits in the 
appropriate circumstances.
    The other commenter, however, believed that the language allowing 
the presiding officer to exercise his discretion in granting subpoenas 
outside the proposed time limits improperly created standardless 
discretion in the presiding officer that could violate the subpoenaed 
individual's due process rights. Contrary to the commenter's belief, 
the rule could never be fashioned to cover every possibility that could 
arise throughout a proceeding. Granting the presiding officer the right 
to exercise his discretion protects the parties' rights by allowing the 
presiding officer to conduct each proceeding fairly. Therefore, the 
discretion language has been adopted as proposed.
    The second commenter was also concerned that the proposed rule 
exceeds the authority granted by the Act by allowing the presiding 
officer to issue the subpoena, permitting the Judicial Officer to seek 
enforcement of a subpoena, and not providing sufficient oversight for 
the issuance of subpoenas.
    Two of the comments concern the right to delegate authority. The 
commenter questions authorizing the presiding officer to issue 
subpoenas when 39 U.S.C. 3016(a)(2) gives that authority to the 
Judicial Officer. The commenter points out that the Act specifies that 
the Postmaster General may delegate the subpoena authority in 
investigations, but does not contain similar provisions applicable to 
the Judicial Officer. The language relied on by the commenter with 
respect to investigative subpoenas appears to be a specific limitation 
on the right to delegate, however, rather than a grant of authority to 
delegate. By limiting the authority to approve a subpoena during an 
investigation to only the Postmaster General, the General Counsel or 
Deputy General Counsel, the Act assures that the subpoena authority 
remains with a high-level official. Absent a specific, legislative 
intent to limit the Judicial Officer's ability to delegate his 
authority, the subpoena authority is impliedly delegable to the 
presiding officer, a high-level and independent official under his 
supervision.
    The commenter also questions the authority of the Judicial Officer 
to seek enforcement of a subpoena when 39 U.S.C. 3016(c)(1) gives that 
authority to the Postmaster General. However, the ability of the 
Postmaster General to delegate this enforcement authority is not 
limited by the statute. Further, the Postmaster General would be 
considered one of the parties to any proceeding conducted under part 
952. Therefore, it makes sense that the authority to seek enforcement 
of a subpoena should be delegated to the Judicial Officer absent a 
specific limitation on that authority by Congress.
    The final comment concerns the form and issuance of the subpoena. 
The commenter was concerned that the proposed language did not offer 
sufficient oversight of the subpoena process by allowing the presiding 
officer to enter the name of the witness and sign the subpoena, but 
otherwise allow the requesting party to complete the subpoena before 
service. The proposed rules provide sufficient oversight by requiring 
the requesting party to ``state the reasonable scope and general 
relevance to the case of the testimony and any records sought,'' which 
provides initial review by the presiding officer, and by allowing a 
motion to quash, which gives the presiding officer a further review if 
necessary. Furthermore, issuing subpoenas signed but otherwise in blank 
is a standard

[[Page 32027]]

practice (cf. Fed. R. Civ. P. 45(a)(3)). After careful review, the 
Judicial Officer determined that the proposed language does not require 
revision.
    With regard to the effective date, the Postal Service has 
determined that there is good cause to make the new regulations 
effective upon publication. The public interest in the enforcement of 
consumer protection laws would not be served by delaying the 
application of subpoena requirements to persons who are subject to 
false representation or lottery proceedings under 39 U.S.C. 3005(a).
    The Postal Service hereby adopts the following amendments to 39 CFR 
part 952.

List of Subjects in 39 CFR Part 952

    Administrative practice and procedure, False representations, 
Fraud, Lotteries, Penalties, Postal Service.

PART 952--[AMENDED]

    1. The authority citation for part 952 is revised to read as 
follows:

    Authority: 39 U.S.C. 204, 401, 3005, 3012, 3016.


Sec. 952.5  [Amended]

    2. Section 952.5 is amended by adding ``and/or the assessment of 
civil penalties'' to the end of the first sentence.


Sec. 952.7  [Amended]

    3. Section 952.7(b) is amended by:
    A. Adding ``and/or the assessment of civil penalties authorized by 
39 U.S.C. 3012'' to the end of the first sentence; and
    B. Adding ``tentatively assess such civil penalties as he considers 
appropriate under applicable law;'' after the phrase ``release of mail 
unrelated to the matter complained of;'' in the third sentence.


Sec. 952.11  [Amended]

    4. Section 952.11 is amended by:
    A. Adding ``and/or assess civil penalties'' after ``orders'' in the 
second sentence of paragraph (a); and
    B. Adding ``and/or assess civil penalties'' after ``orders'' in 
paragraph (b).


Sec. 952.17  [Amended]

    5. Section 952.17(b)(10) is amended by adding ``Sec. 952.19 and'' 
before ``Sec. 952.21''.

    6. Section 952.19 is revised to read as follows:


Sec. 952.19  Subpoenas.

    (a) General. Upon written request of either party filed with the 
Recorder or on his own initiative, the presiding officer may issue a 
subpoena requiring:
    (1) Testimony at a deposition. The deposing of a witness in the 
city or county where the witness resides or is employed or transacts 
business in person, or at another location convenient for the witness 
that is specifically determined by the presiding officer;
    (2) Testimony at a hearing. The attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (3) Production of records. In addition to paragraphs (a)(1) and 
(a)(2) of this section, the production by the witness at the deposition 
or hearing of records designated in the subpoena.
    (b) Voluntary cooperation. Each party is expected:
    (1) To cooperate and make available witnesses and evidence under 
its control as requested by the other party, without issuance of a 
subpoena, and
    (2) To secure voluntary production of desired third-party records 
whenever possible.
    (c) Requests for subpoenas. (1) A request for a subpoena shall to 
the extent practical be filed:
    (i) At the same time a request for deposition is filed; or
    (ii) 15 days before a scheduled hearing where the attendance of a 
witness at a hearing is sought.
    (2) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any records 
sought.
    (3) The presiding officer, in his discretion, may honor requests 
for subpoenas not made within the time limitations specified in this 
paragraph.
    (d) Requests to quash or modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the presiding officer may:
    (1) Quash or modify the subpoena if it is unreasonable and 
oppressive or for other good cause shown, or
    (2) require the person in whose behalf the subpoena was issued to 
advance the reasonable cost of producing subpoenaed records. Where 
circumstances require, the presiding officer may act upon such a 
request at any time after a copy has been served upon the opposing 
party.
    (e) Form; issuance. (1) Every subpoena shall state the title of the 
proceeding, shall cite 39 U.S.C. 3016(a)(2) as the authority under 
which it is issued, and shall command each person to whom it is 
directed to attend and give testimony, and if appropriate, to produce 
specified records at a time and place therein specified. In issuing a 
subpoena to a requesting party, the presiding officer shall sign the 
subpoena and may, in his discretion, enter the name of the witness and 
otherwise leave it blank. The party to whom the subpoena is issued 
shall complete the subpoena before service.
    (2) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of 
such charges on demand may be deemed by the presiding officer as 
sufficient ground for striking the testimony of the witness and the 
evidence the witness has produced.
    (f) Service. (1) In general. The party requesting issuance of a 
subpoena shall arrange for service.
    (2) Service within the United States. A subpoena issued under this 
section may be served by a person designated under 18 U.S.C. 3061 or by 
a United States marshal or deputy marshal, or by any other person who 
is not a party and not less than 18 years of age at any place within 
the territorial jurisdiction of any court of the United States.
    (3) Foreign Service. Any such subpoena may be served upon any 
person who is not to be found within the territorial jurisdiction of 
any court of the United States, in such manner as the Federal Rules of 
Civil Procedure prescribe for service in a foreign country. To the 
extent that the courts of the United States may assert jurisdiction 
over such person consistent with due process, the United States 
District Court for the District of Columbia shall have the same 
jurisdiction to take any action respecting compliance with this section 
by such person that such court would have if such person were 
personally within the jurisdiction of such court.
    (4) Service on Business Persons. Service of any such subpoena may 
be made upon a partnership, corporation, association, or other legal 
entity by:
    (i) Delivering a duly executed copy thereof to any partner, 
executive officer, managing agent, or general agent thereof, or to any 
agent thereof authorized by appointment or by law to receive service of 
process on behalf of such partnership, corporation, association, or 
entity;
    (ii) Delivering a duly executed copy thereof to the principal 
office or place of business of the partnership, corporation, 
association, or entity; or
    (iii) Depositing such copy in the United States mails, by 
registered or certified mail, return receipt requested, duly addressed 
to such partnership,

[[Page 32028]]

corporation, association, or entity at its principal office or place of 
business.
    (5) Service on Natural Persons. Service of any subpoena may be made 
upon any natural person by:
    (i) delivering a duly executed copy to the person to be served; or
    (ii) depositing such copy in the United States mails, by registered 
or certified mail, return receipt requested, duly addressed to such 
person at his residence or principal office or place of business.
    (6) Verified Return. A verified return by the individual serving 
any such subpoena setting forth the manner of such service shall be 
proof of service. In the case of service by registered or certified 
mail, such return shall be accompanied by the return post office 
receipt of delivery of such subpoena.
    (g) Contumacy or refusal to obey a subpoena. In the case of 
contumacy or refusal to obey a subpoena, the Judicial Officer may 
request the Attorney General to petition the district court for any 
district in which the person receiving the subpoena resides, is found, 
or conducts business (or in the case of a person outside the 
territorial jurisdiction of any district court, the district court for 
the District of Columbia) to issue an appropriate order for the 
enforcement of such subpoena. Any failure to obey such order of the 
court may be punishable as contempt.

Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 00-12784 Filed 5-19-00; 8:45 am]
BILLING CODE 7710-12-U