[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Proposed Rules]
[Pages 23176-23178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9300]
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POSTAL REGULATORY COMMISSION
39 CFR Part 3001
[Docket No. RM2012-4; Order No. 1309]
Revisions to Procedural Rules
AGENCY: Postal Regulatory Commission.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Commission is establishing a docket to consider proposed
changes in procedures for handling cases under 39 U.S.C. 3661. These
cases involve changes in the nature of postal services which affect
service on a nationwide or substantially nationwide basis. The
Commission invites comments from interested persons on ways to improve
and expedite its procedures, consistent with due process. Following
review of the comments, the Commission may institute a rulemaking
proceeding to consider adoption of updated procedures.
DATES: Comments Date: June 18, 2012.
Reply Comment Date: July 17, 2012.
ADDRESSES: Submit comments electronically by accessing the ``Filing
Online'' link in the banner at the top of the Commission's Web site
(http://www.prc.gov) or by directly accessing the Commission's Filing
Online system at https://www.prc.gov/prc-pages/filing-online/login.aspx. Commenters who cannot submit their views electronically
should contact the person identified in the FOR FURTHER INFORMATION
CONTACT section as the source for case-related information for advice
on alternatives to electronic filing.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
at 202-789-6820 (case-related information) or [email protected]
(electronic filing assistance).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Legal Requirements
III. Commission's Section 701 Report
IV. Commission's Authority To Modify Procedures
V. Comment Procedures
VI. Ordering Paragraphs
I. Background
The Commission is soliciting comments on its current procedures
under 39 U.S.C. 3661 for reviewing proposals by the Postal Service to
make changes in the nature of postal services. After reviewing the
comments submitted in this proceeding, the Commission may institute
rulemaking proceedings to consider the adoption of new, updated
procedures for processing nature of service cases. The goal of any such
changes would be to increase the efficiency and timely resolution of
nature of service cases while protecting the rights of all
participants, including affected mail users.
In this proceeding, the Commission welcomes comments on (1) whether
changes to the current procedures and regulations are warranted; (2) if
so, what those changes would be; and (3) such other relevant subjects
as commenters may wish to address.
Nature of service proceedings conducted pursuant to 39 U.S.C. 3661
have traditionally been referred to as ``N-cases.'' In N-cases, the
Commission issues advisory opinions on proposals by the Postal Service
for ``a change in the nature of postal services which will generally
affect service on a nationwide, or substantially nationwide basis * *
*.'' 39 U.S.C. 3661(b).
The Commission's authority to conduct N-cases was originally
established by the Postal Reorganization Act of 1970, Public Law 91-
375, August 12, 1970 (PRA). Five N-cases were initiated between the
enactment of the PRA in 1970 and the passage 36 years later of the
Postal Accountability and Enhancement Act (PAEA), Public Law 109-435,
120 Stat. 3219 (2006).\1\ In the 5 years since passage of the PAEA, the
Commission has docketed four N-cases.\2\
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\1\ Docket No. N75-1, Retail Analysis for Facilities Development
Program; Docket No. N75-2, Changes in Operating Procedures Affecting
First-Class Mail and Airmail; Docket No. N86-1, Change in Service,
1986, Collect on Delivery Service; Docket No. N89-1, Change in
Service, 1989, First-Class Delivery Standards Realignment; Docket
No. N2006-1, Evolutionary Network Development Service Changes, 2006.
\2\ Docket No. N2009-1, Station and Branch Optimization and
Consolidation Initiative, 2009; Docket No. N2010-1, Six-Day to Five-
Day Street Delivery and Related Service Changes, 2010; Docket No.
N2011-1, Retail Access Optimization Initiative, 2011; Docket No.
N2012-1, Mail Processing Network Rationalization Service Changes,
2012.
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The varying degrees of complexity presented by N-cases affects the
time required to issue advisory opinions. Ordinarily, cases that
present the most far-reaching implications to mailers require more
extensive procedures and a greater time between the initial filing and
the issuance of an advisory opinion by the Commission. To date, the
Commission has issued advisory opinions in three of the four N-cases
instituted since enactment of the PAEA.\3\ The length of those
proceedings ranged from a low of 5 months in Docket No. N2011-1 to a
high of 12 months in Docket No. N2010-1.\4\ The fourth post-PAEA
proceeding was filed on December 5, 2011, and remains pending.
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\3\ Docket No. N2009-1, Station and Branch Optimization and
Consolidation Initiative, 2009; Docket No. N2010-1, Six-Day to Five-
Day Street Delivery and Related Service Changes, 2010; Docket No.
N2011-1, Retail Access Optimization Initiative, 2011.
\4\ In Docket No. N2009-1, the Postal Service filed its request
on July 2, 2009, and the Commission issued its advisory opinion 8
months later on March 10, 2010. In Docket No. N2010-1, the Postal
Service filed its request on March 30, 2010, and the Commission
issued its advisory opinion nearly 12 months later on March 24,
2011. In Docket No. N2011-1, the Postal Service filed its request on
July 27, 2011, and the Commission issued its advisory opinion almost
5 months later on December 23, 2011.
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Recently, the Postal Service has found itself in an extremely
challenging financial situation, and is seeking to act quickly to
remedy its financial difficulties. The Postal Service has expressed a
need for a more expeditious hearing process for N-cases in light of its
present financial situation. Thus, the Commission is soliciting
comments on the advisability of adjusting N-case procedures in ways
that allow more timely and relevant advisory opinions.
II. Legal Requirements
A. 39 U.S.C. 3661
If the Postal Service determines that a change in the nature of its
services that will affect mail users on a nationwide or substantially
nationwide basis may be called for, it must, prior to implementation,
submit a proposal to the Commission requesting an advisory opinion on
the proposed changes. 39 U.S.C. 3661(b). After the request is
submitted, the Postal Service, mail users, and an officer of the
Commission required to represent the interests of the general public
must be afforded an opportunity for a hearing on the record in
accordance with the provisions of 5
[[Page 23177]]
U.S.C. 556 and 5 U.S.C. 557. 39 U.S.C. 3661(c). Those two statutory
sections--section 556 and section 557--are part of the federal
Administrative Procedure Act. Section 556 sets forth the procedures by
which administrative agencies must conduct evidentiary hearings.
Section 557 establishes requirements for decisions issued in those
administrative hearings. At the conclusion of an N-Case proceeding, the
Commission must issue a decision in the form of a written opinion and
must include a certification by each Commissioner stating that, in the
Commissioner's judgment, the opinion conforms to the appropriate
statutory requirements. 39 U.S.C. 3661(c).
B. Current Procedural Regulations
The Commission's procedural rules implementing the requirements of
section 3661 can be found in 39 CFR 3001.71 through 3001.75. These
procedural rules were first written in 1973 and last updated nearly 20
years ago. Procedural rules of general applicability in subpart A of 39
CFR part 3001 also apply.
III. Commission's Section 701 Report
On September 22, 2011, the Commission presented an analysis to
Congress and the President discussing how the PAEA is operating and
recommending measures to improve the effectiveness and efficiency of
postal laws.\5\ In the 701 Report, the Commission recommends that
Congress consider adding statutory language allowing the Postal Service
to request expedited consideration for time-sensitive N-cases and
requiring the Postal Service to provide a written response to
Commission advisory opinions as well as submitting its response to
Congress prior to implementing such changes in service. Id. at 71-85.
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\5\ Section 701 Report Analysis of the Postal Accountability and
Enhancement Act of 2006, September 22, 2011 (701 Report). The report
draws its name from section 701 of the PAEA.
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Attached to the 701 Report was a Postal Service response to the
Commission's recommendations, including legislative changes to N-case
procedures.\6\ In its response, the Postal Service stated its
preference for a pending legislative proposal which, if adopted, would
require the Commission to issue advisory opinions on Postal Service
requests within 90 days of filing and would remove the formal hearing
requirement from N-case procedural rules.\7\ Postal Service Response to
701 Report at 24. The Postal Service reiterated the need for expedition
in handling such cases, while acknowledging that the level of
Commission analysis should be consistent with its work in other areas.
Id.
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\6\ United States Postal Service Response to Commission's Draft
Section 701 Report, September 16, 2011 (Postal Service Response to
701 Report).
\7\ The proposed legislation referred to by the Postal Service
is contained in S.1010, 112th Cong. Sec. 206. The bill discussed by
the Postal Service is one of several currently pending before
Congress.
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IV. Commission's Authority To Modify Procedures
The Commission has historically conducted N-case hearings as
formal, trial-type proceedings. The Commission recently elaborated on
this historic approach in an order denying a Postal Service request for
reconsideration of the procedural schedule in Docket No. N2012-1: \8\
\8\ Docket No. N2012-1, Order Denying Motion for Reconsideration
of Ruling Establishing Procedural Schedule, January 31, 2012 (Order
No. 1183).
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Before the Commission is permitted to issue an advisory opinion,
it is required to provide an opportunity for hearing on the record *
* *. Participants [in this proceeding have] justified requests for
hearings on the record. The Commission has procedures in place, both
by precedent and rule, to implement these [statutory] requirements,
which provide due process to all participants. The procedures are
flexible enough to accommodate various complexities of cases, and
levels of controversy, but also include procedural steps that once
triggered require somewhat rigid increments of time * * *. A
reasonable amount of time, consistent with the complexity of the
case, must be provided for each step to ensure due process.
Order No. 1183 at 2-3.
The proceedings in Docket No. N2012-1, currently under
consideration by the Commission, highlight the challenges that the
Commission can face in N-cases. In this case, the Commission has been
presented with a multifaceted proposal by the Postal Service with far-
reaching implications for mail users. Parties have urged the Commission
to permit extensive discovery and sufficient time to allow preparation
of technical rebuttal evidence. The Postal Service has emphasized its
need for expedition. The Commission has had to balance the competing
concerns for due process against the need for expedition.
In light of the increasing frequency of N-cases and their varying
degrees of complexity, it is appropriate for the Commission to re-
examine its historic practice of conducting N-cases as trial-type
proceedings, according participants extensive discovery and oral cross-
examination opportunities in all cases. The authority of regulatory
agencies like the Commission to revise their regulations to place
limits on the use of formal litigation procedures in certain types of
cases has been judicially recognized. In Citizens Awareness Network v.
U.S., 391 F.3d 338 (1st Cir. 2004), the court held that it was a valid
exercise of agency discretion for the Nuclear Regulatory Commission to
expedite nuclear reactor licensing proceedings by changing its long-
standing procedural regulations to eliminate discovery and restrict
cross-examination:
The APA [Administrative Procedure Act] lays out only the most
skeletal framework for conducting agency adjudications, leaving
broad discretion to the affected agencies in formulating detailed
procedural rules (citation omitted)* * * short of constitutional
constraints, a court may not impose procedural requirements * * *
beyond those mandated by statute * * *. (Citation omitted).
Citizens Awareness at 349.
While procedures differ from agency to agency and while changes in
those procedures require careful consideration in the specific
statutory and regulatory contexts presented, the Citizens Awareness
decision supports the general proposition that agencies have
flexibility to tailor their procedures to make hearing processes more
efficient. As the court in that case recognized: ``An agency's rules,
once adopted, are not frozen in place. The opposite is true: an agency
may alter its rules in light of its accumulated experience in
administering them (citation omitted).'' Id. at 351.
Commenters are encouraged to address what form any new procedures
might take, and what procedural safeguards must be preserved to assure
that meaningful public participation and the Commission's decisions are
helpful to the Postal Service's decision making process as required by
law.
V. Comment Procedures
Pursuant to 39 U.S.C. 505, Patricia Gallagher is designated as the
Public Representative in this proceeding to represent the interests of
the general public.
Interested persons are invited to provide written comments and
suggestions as to how the Commission can best fulfill its statutory
obligations. Comments are due within 60 days of the date of publication
of this notice in the Federal Register. All comments and suggestions
received will be available for review on the Commission's Web site,
http://www.prc.gov. Interested persons are further invited to review
these submissions and provide follow-up comments and suggestions within
30
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additional days of the due date for initial comments.
VI. Ordering Paragraphs
It is ordered:
1. Docket No. RM2012-4 is established for the purpose of receiving
comments in advance of developing regulations regarding new rules of
procedure for evaluating requests for advisory opinions under 39 U.S.C.
3661.
2. Interested parties may submit comments no later than 60 days
from the date of publication of this notice in the Federal Register.
3. Reply comments may be filed no later than 30 days from the due
date for initial comments.
4. Pursuant to 39 U.S.C. 505, Patricia Gallagher is appointed to
serve as an officer of the Commission (Public Representative) to
represent the interests of the general public in this proceeding.
5. The Secretary shall arrange for publication of this document in
the Federal Register.
By the Commission.
Shoshana M. Grove,
Secretary.
[FR Doc. 2012-9300 Filed 4-17-12; 8:45 am]
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