[Federal Register Volume 66, Number 58 (Monday, March 26, 2001)]
[Notices]
[Pages 16504-16509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7439]


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POSTAL RATE COMMISSION

[Docket No. C2001-1; Order No. 1307]


Notice and Order on Complaint Concerning Sunday and Holiday Mail 
Collections

AGENCY: Postal Rate Commission.

ACTION: Notice and order on complaint docket no. C2000-1.

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SUMMARY: This document addresses a complaint and related motion 
practice concerning Sunday and holiday mail collections. It established 
deadlines for certain actions. It also addresses other aspects of the 
filing.

DATES: Notice and order issued March 20, 2001; complainant's filing due 
April 3, 2001; participants' responses due April 10, 2001.

ADDRESSES: Send filings to the attention of Steven W. Williams, acting 
secretary, 1333 H Street NW., suite 300, Washington, DC 20268-0001.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
202-789-6820.

SUPPLEMENTARY INFORMATION:

Authority to Consider the Complaint 39 U.S.C. 3662

Background

    On October 27, 2000, Douglas F. Carlson filed a complaint with the 
Commission pursuant to 39 U.S.C. 3662, rate and service complaints, 
alleging that the Postal Service has made changes to the nature of mail 
service without first seeking an advisory opinion from the Commission 
as required by section 3661(b).\1\ He alleges that the Postal Service 
has made changes to the nature of mail service on either a nationwide 
or a substantially nationwide basis by eliminating: (1) Sunday 
collection and processing of outgoing First-Class Mail; (2) processing 
of outgoing First-Class Mail on several holidays; and (3) normal mail 
collections on Christmas eve and possibly on New Year's eve. As a 
second basis to sustain his section 3662 complaint, Carlson further 
alleges that the current level of Sunday, holiday, Christmas eve, and 
New Year's eve service does not conform to the requirements delineated 
in the Postal Service's postal operations manual (POM).
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    \1\ Douglas F. Carlson complaint on Sunday and holiday 
collections, filed October 27, 2000 (complaint).
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    Carlson requests that the Commission issue a public report 
documenting the alleged Postal Service's noncompliance with collection 
and outgoing mail processing on Sundays, holidays, Christmas eve, and 
New Year's eve as delineated in the POM. Furthermore, he requests that 
the Commission consider conducting a hearing to determine: (1) The 
extent to which the Postal Service provides collection service on 
Christmas eve and New Year's eve; (2) the extent to which customers 
have access to collection and processing of outgoing First-Class Mail 
on holidays; and (3) whether the Postal Service provides adequate 
postal services within the meaning of section 3661(a) when customers do 
not have access to outgoing First-Class Mail service on Sundays, 
holidays, or for any two consecutive days.

Postal Service Answer and Motion to Dismiss

    On November 27, 2000, the Postal Service filed an answer to the 
Complaint concurrent with a motion to dismiss.\2\ The answer 
demonstrates considerable agreement as to the events that have 
occurred, but disagreement in interpreting these events as they relate 
to the requirements of the Postal Service. Procedurally important, the 
Postal Service acknowledges that it did not seek advisory opinions for 
any of the three service changes alleged by Carlson. The facts that 
follow briefly describe the Postal Service's position on Sunday, 
holiday, and holiday eve service, and the significance of the POM.
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    \2\ Answer of the United States Postal Service and motion to 
dismiss, filed November 27, 2000 (answer).
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    The Postal Service admits that Sunday collection and outgoing mail 
processing were eliminated effective February 14, 1988. The Service 
specifically denies that an advisory opinion was required to take this 
action. The Service acknowledges that this policy change was never 
incorporated into the POM. However, the Service states that the POM is 
in the process of being amended to reflect the current policy.
    The POM discusses Sunday and holiday collections ``to ensure that 
the mail will connect with dispatches of value * * *.'' Specifically 
for Sunday collections, the Postal Service alleges that there are no 
longer dispatches of value because outgoing mail processing does not 
occur on Sundays. Therefore, the Postal Service infers that the POM 
does not require Sunday collections. Answer at 4-12.
    The Service concedes that in the 1970s and early 1980s it tended to 
do more processing of outgoing mail on holidays than it does now. The 
Service states that collection and outgoing mail processing tend not to 
be done on several widely observed holidays, and outgoing mail 
processing is now rare on Christmas day and New Year's day. However, 
the Service denies outgoing mail processing has been phased out over 
time. If a holiday occurs on a Monday, the Service admits that there 
may be two consecutive days without collections or outgoing mail 
processing.
    The Postal Service acknowledges instances of Christmas eve, and 
possibly New Year's eve, final collections occurring prior to the times 
posted on the collection boxes, and that customers were not given prior 
notice that this would happen. However, the Postal Service notes that 
the POM allows the Service to make exceptions to the specific level of 
service provided. The Service denies that service exceptions were not 
granted, as alleged by Carlson.
    The Postal Service notes that the POM allows exceptions to be made 
to holiday and holiday eve service levels. There is evidence that the 
POM and the Domestic Mail Manual (DMM) exception provisions are in 
conflict. However, the Service denies the allegation that the 
provisions in the POM control the provisions in the DMM. The Postal 
Service also contends that the POM is not intended to be relied upon by 
the general public.
    The Postal Service separately discusses allegations of providing 
service inconsistent with the POM, Sunday collections, and holiday and 
holiday eve collections as part of the motion to dismiss as allowed by 
rule 84(b)-(c). The Service first states that the provisions of the POM 
``are not necessarily commensurate with the policies of the [Postal 
Reorganization] Act.'' It then asserts that the complaint fails to 
allege that the complainant is not receiving postal services in 
accordance with the policies of title 39. From this, the Postal Service 
concludes that the allegations regarding the POM are outside the scope 
of section 3662 and should be dismissed. In conjunction with the above 
argument, the Postal Service argues that the Commission lacks 
jurisdiction to entertain a complaint, such as the instant complaint, 
which does not allege that

[[Page 16505]]

the service provided is not in accordance with the policies of title 
39.\3\ Answer at 12-13.
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    \3\ The Service cites PRC order no. 1088 as support for the 
premise that the Commission lacks jurisdiction to enterain 
complaints which fail to allege that the service provided is not in 
accordance with the policies of title 39. In PRC order no. 1088, the 
Commission ruled that the violation of a criminal statute, 18 U.S.C. 
1721, did not fall within the scope of 39 U.S.C. 3662. The Service's 
interpretation is much broader than what was actually stated in that 
order. In the instant complaint, the service provided (or not 
provided), collection and processing of mail, is within the scope of 
section 3662.
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    The Postal Service indicates that it is amending the POM to 
eliminate the discrepancies from actual practice cited in the 
complaint. Thus, there is no need to pursue analysis of this situation 
because it will soon cease to exist. The Postal Service alleges that 
the complaint overstates the significance of the POM provisions cited 
by blurring the distinction between collection and mail processing. 
Furthermore, the complaint does not cite any provision of the POM that 
mandates a level of outgoing mail processing on Sundays, holidays, 
Christmas eve and New Year's eve. Id. at 13-14.
    The Postal Service requests that the Commission dismiss the 
portions of the complaint regarding the elimination in 1988 of Sunday 
collections and outgoing mail processing. The Service argues that 
common sense principles of equity and laches suggest that 13 years is 
an inordinate amount of time to wait before bringing this matter before 
the Commission. It summarizes that there would be no practical utility 
in reviewing this history at this time. In addition, the Service argues 
that its actions were reasonable under the circumstances, and its 
ability to expediently comply with the Omnibus Budget Reconciliation 
Act of 1987 (OBRA) legislation with the least possible harm to the 
mailing public would have been frustrated by first having to seek an 
advisory opinion. Id. at 14-16.
    The Postal Service argues that the holiday and holiday eve 
collection issues are generally temporary and local in nature, and do 
not rise to the level of a nationwide change in service. Because this 
is an ``individual, localized, or temporary service issue not on a 
substantially nationwide basis,'' the Service concludes that this issue 
should not be considered by the Commission and thus, dismissed. 
Furthermore, the Service states that it needs the latitude to assess 
local conditions and adjust its operations accordingly. Id. at 16-18. 
In summation, the Postal Service concludes that the complaint fails to 
raise a matter of policy to be considered by the Commission, and, 
citing the requirements of section 3662, as implemented by rule 82, 
therefore should be dismissed.

Carlson Motion for Extension of Time

    The deadline for filing answers to the Postal Service motion to 
dismiss passed on December 4, 2000. On December 7, 2000, Carlson filed 
a motion for extension of time to answer the Postal Service motion.\4\ 
Carlson requested a deadline of December 11, 2000 to serve an answer on 
the Postal Service, and estimated three additional days for delivery of 
the associated document. The Carlson response to Postal Service motion 
to dismiss was subsequently filed on December 14, 2000. The Postal 
Service does not oppose this request, and the late filing will not 
prejudice any interested party. The Commission grants the Carlson 
motion for extension of time in as far as allowing the late filing of 
the Carlson response.\5\
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    \4\ Douglas F. Carlson motion for extension of time to respond 
to Postal Service motion to dismiss, filed December 7, 2000.
    \5\ Historically, the Commission liberally grants reasonable 
extensions of time to file documents when no party is prejudiced by 
such an extension. Recognizing this practice, participants should 
note that the requirement to observe the ``filing date'' of a 
document is an integral part to many of the Commission's rules. 
Motions for extensions of time that request the Commission to wave a 
filing date requirement and replace it with a service date 
requirement, without more, do not adequately reflect the 
requirements of the Commission's rules. Therefore, in as far as the 
Carlson motion requests the observance of a service deadline, the 
motion is denied.
    The expected filing date is described in Carlson's motion. This 
date was met. The Commission will consider the Carlson motion as a 
motion for extension of time with a requested filing deadline of 
December 14, 2000.
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Carlson Response to Motion to Dismiss

    Carlson filed a response in opposition to the motion to dismiss on 
December 14, 2000.\6\ Carlson states that his Complaint is brought 
pursuant to section 3662 which allows interested parties who believe 
that they are not receiving postal services in accordance with the 
policies of title 39 to lodge a complaint with the Commission. He cites 
the alleged failure of the Postal Service to provide the level of 
service delineated in the POM and failure of the Postal Service to seek 
an advisory opinion when changing its policy on collections as the 
bases for arguing that postal customers are not receiving postal 
services in accordance with the policies of title 39.
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    \6\ Douglas F. Carlson answer in opposition to Postal Service 
motion to dismiss, filed December 14, 2000. Douglas F. Carlson 
answer in opposition to Postal Service motion to dismiss--erratum, 
filed December 20, 2000. Douglas F. Carlson answer in opposition to 
Postal Service motion to dismiss--erratum, filed January 7, 2001. 
(Response).
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    To support his argument based on the POM, Carlson traces the 
requirements of the Act to the promulgation of the rules and 
regulations delineated in the POM. From this, Carlson infers that the 
POM contains the Postal Service's rules and regulations establishing an 
efficient system of collecting mail. Therefore, he concludes, a 
customer not receiving collection service as set forth in the POM is 
not receiving postal services in accordance with the policies of the 
Act, and may file a complaint. Response at 4-5.
    The second basis used by Carlson to show that postal customers may 
not be receiving postal services in accordance with the policies of 
title 39 is through an alleged violation of a provision of the Act. 
Section 3661(b) requires the Postal Service to seek an advisory opinion 
under specific circumstances when it decides to change the nature of a 
postal service. If the Postal Service does not request an advisory 
opinion when required, Carlson concludes that a complaint may be filed. 
Id at 4-5.
    The response also provides rebuttal to many of the allegations made 
by the Postal Service in the answer. Id at 5-19. This material will not 
be reviewed here, but will be drawn upon as necessary in the 
Commission's analysis of the Postal Service motion to dismiss.

Subsequent Motion Practice

    The Postal Service filed a motion for leave to reply to alleged 
misstatements of material fact and an erroneous standard for initiating 
a proceeding contained in Carlson's answer.\7\ This motion is granted. 
The Postal Service reply was received on December 26, 2000, and will be 
considered.\8\ The USPS Reply contains additional argument on the 
statutory requirements for initiating a complaint, and on the 
approximately 12-year delay in initiating a complaint regarding Sunday 
service. The Postal Service also argues the distinction between the 
policy of discretion over the level of holiday service and the policy 
of curtailing holiday service.
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    \7\ Motion of the United States Postal Service for leave to 
reply to Douglas F. Carlson answer in opposition to Postal Service 
motion to dismiss, filed December 26, 2000.
    \8\ Reply of the United States Postal Service to Douglas F. 
Carlson answer in opposition to Postal Service motion to dismiss, 
filed December 26, 2000 (USPS reply).

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[[Page 16506]]

    Carlson's final reply was received on January 7, 2001.\9\ This 
reply provides additional argument and reiterates the basis of the 
complaint. This additional pleading is also accepted and will be 
considered.
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    \9\ Douglas F. Carlson response to Postal Service reply to 
answer in opposition to motion to dismiss, filed January 7, 2001 
(Carlson reply).
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Commission Analysis

    This Complaint is brought pursuant to rate and service complaints, 
39 U.S.C. 3662. The subject of the complaint is Sunday, holiday, and 
holiday eve service. It does not involve rate issues, or subchapter II, 
permanent rates and classes of mail, issues. The applicable part of 
section 3662 states:

    Interested parties * * * who believe that they are not receiving 
postal service in accordance with the policies of this title may 
lodge a complaint with the Postal Rate Commission in such form and 
in such manner as it may prescribe.

39 U.S.C. 3662. Thus, to sustain a complaint, the complainant must show 
(1) that the complainant is receiving (or not receiving) the service in 
question, and (2) a belief that the service in question is not in 
accordance with the policies of the Act.
    The Postal Service argues that the complaint fails to allege that 
the complainant is not receiving postal services in accordance with the 
policies of the Act. Answer at 12-13. Carlson replies that he has 
demonstrated a clear belief that he is not receiving the services in 
question. He states that he is not receiving outgoing mail collection 
and processing on Sunday, he has given examples of failure to provide 
holiday outgoing mail processing in an area that he has lived, and he 
states that the curtailment of holiday eve service could affect anyone 
traveling through the affected areas. Response at 5-7.
    The Commission finds the complaint sufficiently alleges the 
complainant is not receiving the services in question. Although the 
Complaint fails to state specifically that Carlson is not receiving the 
services in question, it is also clear from the complaint that no one, 
including Carlson, is receiving Sunday collections and outgoing mail 
processing. The complaint also demonstrates a sufficient personal nexus 
to the holiday and holiday eve service issues. The holiday service 
issue allegedly has occurred in an area in which Carlson resided, and 
the nature of the holiday and holiday eve service issues logically may 
affect a broad spectrum of mailers, including Carlson. Finally, the 
allegations surrounding the holiday and holiday eve issues may 
indicate, upon further examination, that these service issues approach 
the nationwide magnitude of the Sunday collection and outgoing mail 
processing allegations, where no mailer is receiving the services in 
question.
    Once the complainant shows that he is receiving (or not receiving) 
the service in question, he must then demonstrate a belief that the 
service in question is not in accordance with the policies of the Act. 
Carlson attempts to demonstrate this belief using two separate 
arguments. One argument, although loosely based on the Postal Service 
requirement to develop and promote adequate and efficient postal 
services, section 3661(a), is more accurately characterized as based on 
the Postal Service's alleged failure to seek an advisory opinion as 
required by section 3661(b). The other argument is based on the Postal 
Service not conforming its actual service practice to the 
specifications delineated in the POM.
    Carlson's argument that the Postal Service's failure to seek an 
advisory opinion as required by section 3661(b) is sufficient to 
demonstrate a reasonable belief that the services in question are not 
in accordance with the policies of the Act is examined first. The 
question before the Commission in the motion to dismiss becomes whether 
a section 3662 rate and service complaint is sustainable based upon the 
Postal Service's alleged failure to follow a procedural provision of 
the Act, specifically section 3661(b).\10\ The Commission has 
previously stated: ``[T]o the extent that the section 3662 complaint 
mechanism has been viewed as a remedial supplement to the review of 
substantially nationwide service changes required under section 3661, 
consideration of a Postal Service action purportedly in violation of 
section 3661 in a complaint proceeding appears compatible with the 
statutory scheme of the Reorganization Act.'' Order no. 1239 at 14 
(footnote omitted). Although that order viewed this contention as a 
novel approach, the conclusion was that a complaint may be heard on 
this basis.
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    \10\ A purpose of section 3661(b) is to provide the opportunity 
for public input to inform a review of the policy requirement that 
``the Postal Service shall develop and promote adequate and 
efficient postal services,'' section 3661(a), whenever the Postal 
Service seeks to change the nature of a postal service which will 
generally affect the service on a nationwide or substantially 
nationwide basis.
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    The Commission finds that to properly exercise its discretion and 
hear a complaint under this basis, the section 3662 ``belief'' that the 
complainant is not receiving postal services in accordance with the 
policies of the Act must be reasonable, and not merely a naked 
assertion. The complainant does not have to ``prove'' a violation of 
the statute. An opportunity to develop evidence and make a case is 
provided if the complaint is heard. In the instant complaint, to 
determine if the belief is reasonable the Commission must consider 
whether the complainant has at least made a colorable claim alleging a 
violation of section 3661(b).\11\
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    \11\ The Commission finds that a colorable claim standard is 
appropriate to screen out complaints without merit. A higher 
standard would not be appropriate because it may require the 
Commission to hear evidence on the complaint prior to ruling on the 
initial motion to dismiss. In many cases, such a ruling may also be 
conclusive as to the outcome of the complaint.
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    The starting point is a review of the requirements of section 
3661(b). Section 3661(b) states:

    When the Postal Service determines that there should be a change 
in the nature of postal services which will generally affect service 
on a nationwide or substantially nationwide basis, it shall submit a 
proposal, within a reasonable time prior to the effective date of 
such proposal, to the Postal Rate Commission requesting an advisory 
opinion on the change.

The statute places the burden upon the Postal Service to determine 
whether to request an advisory opinion from the Commission when it is 
contemplating a change to a service. To make this determination, the 
Postal Service must resolve two factual issues. First, does the change 
involve a change to the nature of a postal service, and second, does 
the change generally affect service on a nationwide or substantially 
nationwide basis? If both factual conditions exist, the Postal Service 
must submit a proposal requesting an advisory opinion from the 
Commission, prior to the effective date of such proposal.
    The pleadings show that the Postal Service has not requested an 
advisory opinion on alleged changes to either Sunday, holiday or 
holiday eve service. The Postal Service admits to the elimination of 
Sunday collection and outgoing mail processing. This arguably rises to 
the level of a ``change in the nature of postal services which will 
generally affect service on a nationwide or substantially nationwide 
basis.''
    Carlson and the Postal Service differ on whether the holiday and 
holiday eve service concerns rise to the level of a change in the 
nature of a postal service, or of the nationwide or substantially 
nationwide applicability of the actual service levels. The Postal 
Service raises a factual dispute as to whether local offices are 
exercising discretion on holiday and holiday eve service levels

[[Page 16507]]

or, as Carlson alleges, it has in fact instituted a de facto policy 
change in the nature of a postal service. There is also disagreement as 
to the nationwide or substantially nationwide applicability of 
Carlson's allegations. In the opinion of the Commission, Carlson has 
provided sufficient basis to make a colorable claim as to whether the 
Postal Service should have requested an advisory opinion pursuant to 
section 3661(b). Because Carlson has made a colorable claim of a 
substantially nationwide change in service, the Complaint is 
sustainable on this basis.
    Carlson's second argument, based on the POM, attempts to establish 
a direct relationship between the POM and the policies of the Act. To 
summarize, Carlson alleges that the provisions of the POM flow from the 
policies of the Act. Therefore, if the Postal Service is not providing 
the level of service delineated in the POM, it is not providing the 
level of service required by the policies of the Act. Separately for 
each service in question, he alleges that the Postal Service is not 
providing the level of service delineated in the POM. Therefore, he 
concludes, the Postal Service is failing to provide the level of 
service that the policies of the Act require. The Postal Service argues 
that the provisions of the POM are not necessarily commensurate with 
the policies of the Act. For this reason, including the contention that 
Carlson did not allege that he was not receiving the services in 
question (discussed above), the Postal Service argues that the 
Complaint should be dismissed. Answer at 12.
    The Commission generally concurs with the Postal Service that 
various provisions of the POM may not necessarily rise to the level of 
interpreting or implementing a policy of the Act. The significance of 
the POM in relation to the policies of the Act can only be determined 
after examining the specific provisions of the POM and the related 
policies of the Act, in conjunction with the surrounding facts of the 
allegation. The Commission is not attempting to diminish the 
significance of the POM, but only trying to put its significance in 
proper perspective. There are many instances where examining the POM 
could provide valuable insight into the Postal Service's interpretation 
of a specific policy of the Act. The Postal Service providing service 
inconsistent with provisions of the POM is not conclusive to answering 
whether the Postal Service is providing service inconsistent with the 
policies of the Act.
    However, as described above, the Complainant demonstrates a 
reasonable belief that the service in question is not in accordance 
with the policies of the Act. The failure to obtain an advisory 
opinion, when required by section 3661(b), indicates that the service 
in question might not be in accordance with the policies of the Act. 
Once a party has demonstrated a proper basis for bringing a complaint, 
the Commission is given discretion on whether or not to hear the 
complaint. The statute simply states: ``The Commission may in its 
discretion hold hearings on such complaint.'' 39 U.S.C. 3662.
    The Commission adopted a rule to guide it in determining when to 
apply its discretion to hold hearings, as granted in section 3662, 
which states in part:

    The Commission shall entertain only those complaints which 
clearly raise an issue concerning whether or not rates or services 
contravene the policies of the Act; thus, complaints raising a 
question as to whether the Postal Service has properly applied its 
existing rates and fees or mail classification schedule to a 
particular mail user or with regard to an individual, localized, or 
temporary service issue not on a substantially nationwide basis 
shall generally not be considered as properly raising a matter of 
policy to be considered by the Commission.

39 CFR 3001.82. This empowers the Commission to entertain complaints 
raising rate and service issues that contravene the policies of title 
39 and that have nationwide implications. The Commission generally 
considers that the following types of complaints are not a matter of 
policy that have nationwide implications and thus, will not be 
entertained: (1) Whether the Postal Service has properly applied its 
existing rates and fees or mail classification schedule to a particular 
mail user, or (2) complaints with regard to an individual, localized, 
or temporary service issue.
    Carlson's allegations, if proven, certainly may rise to the level 
of clearly contravening the policies of title 39. The level of service 
issues have substantially nationwide implications. The Sunday service 
issue occurs on a nationwide and not on an individual, localized, or 
temporary basis. Finally, there is a sufficient allegation that the 
holiday and holiday eve service issues may occur at least on a 
substantially nationwide basis and are not localized or temporary in 
nature. Rule 82 does not provide sufficient cause to dismiss this 
complaint. However, the Commission will exercise its prerogative and 
examine other factors to determine whether to exercise discretion to 
hear various aspects of the instant complaint.

Commission's Discretion on the Sunday Service Issue

    The Postal Service presents three arguments for dismissing the 
Sunday service section of the complaint that the Commission considers 
in exercising its discretion on whether to hear this portion of the 
complaint. The Service states that more than 12 years have passed since 
it eliminated Sunday collections and outgoing mail processing. Because 
such a long time has passed, the Postal Service argues that equity and 
laches dictate that the Commission should exercise its discretion and 
dismiss this part of the complaint. Second, the Postal Service alleges 
that it acted reasonably under the circumstances. The Service states 
that it had to rapidly respond to the requirements of the OBRA in a way 
that would cause the least inconvenience to the mailing public. Thus, 
an advisory opinion would have been a meaningless gesture. Therefore, 
this section of the complaint should be dismissed. Finally, the Service 
argues that the complaint should be dismissed because there is no 
practical purpose to dredging up ancient history. Answer at 14-16.
    Carlson succinctly states that the Postal Service has provided no 
legal authority in support of its decision to bypass the requirements 
of section 3661(b). Carlson reply at 18. The Commission agrees. 
Eliminating one out of the possible seven days for collection and mail 
processing reduces mail service, and this appears to be a change in the 
nature of a postal service.\12\ The effect that this has had on postal 
customers can only be speculated. The level of service change has 
unquestionably occurred at the national level. The statute does not 
provide for exceptions to seeking an advisory opinion, and in fact 
contemplates that changes may be made before the section 3661 
proceeding is concluded. Therefore, the Commission must conclude that 
the Postal Service was required, but failed, to seek an advisory 
opinion as required by section 3661(b)

[[Page 16508]]

prior to implementing this change in the level of Sunday service.
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    \12\ There is no bright line for determining when a reduction in 
collection and mail processing service is a change in the nature of 
a postal service. A one out of seven day reduction appears to be a 
substantial reduction. However, the Commission recognizes the 
possibility that the Postal Service might have been able to show 
that this reduction had only a minor impact on the actual nature of 
the postal service. A timely and properly instituted section 3661(b) 
proceeding would have allowed for public participation and the 
development of a record on the impact that this change would have on 
mailers. If the impact was more substantial than first assumed by 
the Service, alternatives to comply with the OBRA could have been 
considered.
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    However, the Postal Service's failure to seek an advisory opinion 
is not the only consideration. The Commission agrees with the Postal 
Service argument that there is no practical benefit to reviewing a 
policy change that occurred more than 12 years ago. There is little 
relevance in discussing the impact that this service change would have 
on mailers, when mailers have been operating under this level of 
service for more than 12 years.\13\ Carlson does not allege any benefit 
to reinstituting 7-day a week collection and mail processing, nor does 
he allege any detriment caused by the current 6-day a week collection 
and mail processing service level. Furthermore, the Commission is not 
aware of any timely anecdotal or mailer initiated discussions 
concerning the sufficiency of the current level of service. For these 
reasons, the Commission shall exercise its discretion and grant the 
Postal Service motion to dismiss in the area of Sunday service.
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    \13\ The passage of time may properly be considered in 
exercising discretion to hear a service related complaint. In 
contrast, the passage of time would have considerably less influence 
on a rate-related complaint where the complainant alleged that a 
rate is ``illegal,'' because the passage of time would be unlikely 
to cure the illegal rate.
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Commission's Discretion Concerning the POM

    Carlson makes a logical argument that relates the provisions 
contained in the POM to the policy requirements of the Act--up to a 
point. The persuasiveness of the argument becomes weak in two areas. 
First, Carlson's argument does not account for the relationship between 
the Postal Service and the Commission. This relationship is similar to 
a partnership. Each partner has explicit responsibilities of their own, 
plus a vast area of responsibilities that both partners share to some 
varying degree. The POM is a Postal Service generated and maintained 
document. It is an ``internal'' document to the extent that the POM is 
used by the Postal Service to explain its policies, regulations or 
procedures to its employees.\14\
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    \14\ The term ``internal'' is not meant to infer that the POM is 
in any way privileged, or cannot be used as evidence of a Postal 
Service policy, regulation or procedure.
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    Second, failure to follow a provision of the POM is not per se 
conclusive in determining that the Postal Service has failed to follow 
a policy of the Act. There are provisions of the POM that may be very 
significant in relation to the policies of the Act. The procedure 
contained in Discontinuance of Post Offices, section 123.6, is an 
example of a provision that has a strong relationship with the policies 
of the Act. Other provisions have varying degrees of significance. A 
determination of a provision's significance requires a thorough 
examination of the specific POM provision, the specific policy 
requirement, and the surrounding facts of the specific case.
    However, focusing on the POM, in this case, may do little more than 
highlight inconsistencies between a Postal Service document, and actual 
policy and practice. A more prudent focus would be on the sufficiency 
of the Postal Service's actual policies and practice.
    The POM is often useful to explain how an actual Postal Service 
policy, regulation or procedure relates to provisions of the Act. The 
POM may be used as evidence of the Postal Service's intent, 
interpretation or implementation of that policy, regulation or 
procedure. The Postal Service needlessly places itself in a precarious 
position when an internal manual, such as the POM, and the actual 
Postal Service policy or procedure, do not correspond. This may require 
the Postal Service to explain its actual policy, regulation or 
procedure, and why the actual policy, regulation or procedure does not 
correspond to its written documentation.

Commission's Discretion Concerning Holiday and Holiday Eve Service

    What remains of the instant complaint are the holiday and holiday 
eve service issues based on the Postal Service's alleged failure to 
seek an advisory opinion as required by section 3661(b). The 
determination that Carlson has at least made a colorable claim that the 
Postal Service has violated section 3661(b) is discussed above. This 
allowed the section 3662 complaint to proceed to this stage. The 
remaining determination is whether the Commission will exercise its 
discretion to hear this portion of the complaint.
    As a preliminary matter, the Commission considers whether the 
Postal Service policy on holiday and holiday eve service levels is 
clear and understandable, or is it likely to cause confusion to the 
mailing public. It may reasonably be argued that the policies of the 
Act include the requirement that the public be adequately and clearly 
informed of what postal services are available, and also of when 
existing services are to be discontinued. At this point in the 
proceeding, the Commission does not have an adequate record describing 
the Postal Service policy as to holiday and holiday eve service, and as 
to whether that policy has recently been changed. The existing policy 
may be ambiguous, and possibly confusing to the mailing public. 
Complainant should be given the opportunity to fully develop a record 
on this issue. Therefore, the Commission denies the Postal Service 
request to dismiss this portion of the complaint.
    Because the Commission has decided to hear this portion of this 
complaint, the final section of section 3662 provides direction as to 
the appropriate course of action. It states,

    If a matter not covered by subchapter II of this chapter is 
involved, and the Commission after hearing finds the complaint to be 
justified, it shall render a public report thereon to the Postal 
Service which shall take such action as it deems appropriate.

39 U.S.C. 3662. This statement applies to all section 3662 issues that 
are not related to permanent rates and classifications. It directs the 
Commission to hold hearings of an unspecified degree of formality. See 
39 CFR 3001.85-86. Section 3662 acts to limit the authority of the 
Commission to rendering a public report to the Postal Service on its 
findings. Further, it allows the Postal Service the discretion to take 
such action as it deems appropriate on the findings in the public 
report.
    Although the Commission has agreed to hear this portion of the 
complaint, it finds it necessary to frame the issues in such a way to 
ensure that an adequate record will be developed. This is done to 
increase the probability that a final report will be beneficial to the 
Postal Service, the Complainant, and the mailing public.
    The Commission would like to determine whether current Postal 
Service policy is clear, concise, and not deceptive to the mailing 
public. The first issue that the Commission would like to resolve is 
whether postal customers are adequately informed when the Postal 
Service temporarily or permanently modifies its holiday and holiday eve 
collection and mail processing schedules. This includes the issue of 
mail collections occurring prior to the time indicated on the 
collection receptacle. Accurately informing the mailing public of 
Postal Service policy is important. The failure to accurately inform 
the public of a policy has the potential to rise to a failure or denial 
to provide a particular service.
    The second issue is to determine the actual Postal Service policy 
on holiday and holiday eve collection and mail processing. This 
includes an examination of the Postal Service's alleged policy of 
``exceptions'' or ``discretion'' and whether the exception, or frequent 
use of discretion, has effectively changed stated policy. The

[[Page 16509]]

exceptions or discretion topic also should include exploration of what 
are the decision-making criteria, and at what levels are the decisions 
implemented at, i.e., national, regional, local, or facility specific. 
Discussion of all issues will be aided by developing a record of the 
historical trends that have occurred in holiday and holiday eve service 
levels.
    The Commission does not contemplate consideration at this time of 
whether the level of holiday and holiday eve service is adequate under 
section 3661(a). Carlson has not made a specific allegation that these 
service levels are not adequate. As with the Sunday service issue, the 
Commission is not aware of any timely anecdotal or mailer initiated 
discussions concerning the sufficiency of the current level of service. 
However, the complainant will be given the opportunity to modify his 
complaint and make this allegation if he is going to enter evidence in 
support of an allegation that holiday and holiday eve service levels 
are not adequate. This opportunity is granted to curtail the 
possibility of a future complaint that would necessarily cover much of 
the same territory that will be covered in the instant complaint.
    The burden is on the complainant to go forward with the case. The 
first action that must occur is for the complainant to inform the 
Commission of the time required to develop his case. This includes 
several items. First, the complainant shall inform the Commission if he 
is going to modify his complaint, as stated above, and if so, the date 
when this filing will be made. Second, the complainant shall state the 
number of days requested for discovery. Third, the complainant shall 
indicate the nature of the presentation he expects to make in support 
of this complaint. The complainant shall provide the Commission with 
the information requested by April 3, 2001. At this time, the 
complainant should submit any other requests for time along with a 
description of the contemplated task. Other participants may respond 
regarding this filing by April 10, 2001.

Representation of the General Public

    In conformance with 39 U.S.C. 3624(a), the Commission designates 
Ted P. Gerarden, director of the Commission's office of the consumer 
advocate (OCA), to represent the interests of the general public in 
this proceeding. Pursuant to this designation, Mr. Gerarden will direct 
the activities of Commission personnel assigned to assist him and, when 
requested, will supply their names for the record. Neither Mr. Gerarden 
nor any of the assigned personnel will participate in or provide advice 
on any Commission decision in this proceeding. The OCA shall be 
separately served with three copies of all filings, in addition to and 
contemporaneous with, service on the Commission of the 24 copies 
required by rule 10(d). 39 CFR. 3001.10(d).

Ordering Paragraphs

    It is ordered:
    1. The unopposed Douglas F. Carlson motion for extension of time to 
respond to Postal Service motion to dismiss, filed December 7, 2000, is 
granted.
    2. The unopposed motion of the United States Postal Service for 
leave to reply to Douglas F. Carlson answer in opposition to Postal 
Service motion to dismiss, filed December 26, 2000, is granted.
    3. The motion to dismiss included with the answer of the United 
States Postal Service and motion to dismiss, filed November 27, 2000, 
is granted in part, and denied in part, consistent with the body of 
this ruling.
    4. The Carlson filing providing the information requested in the 
body of this ruling concerning going forward with this case is due by 
April 3, 2001. Other participants may respond regarding this filing by 
April 10, 2001.
    5. Ted P. Gerarden, director of the office of the consumer 
advocate, is designated to represent the general public in this 
proceeding.
    6. The acting secretary shall arrange for publication of this 
notice and order in the Federal Register.

    By the Commission.
Steven W. Williams,
Acting Secretary.
[FR Doc. 01-7439 Filed 3-23-01; 8:45 am]
BILLING CODE 7710-12-P