[Federal Register Volume 79, Number 241 (Tuesday, December 16, 2014)]
[Notices]
[Pages 74780-74782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29344]
=======================================================================
-----------------------------------------------------------------------
POSTAL SERVICE
Exercise of Powers Reserved to the Governors and the Board of
Governors
AGENCY: Postal Service.
ACTION: Notice of resolutions regarding the absence of a quorum.
-----------------------------------------------------------------------
SUMMARY: The Board of Governors of the Postal Service has adopted a
resolution regarding the exercise of those powers reserved to the Board
upon the loss of a quorum of the Board. During the time in which the
Board is unable to form a quorum, those powers needed to provide for
continuity of operations would be delegated to a Temporary Emergency
Committee composed of the remaining members of the Board. The Governors
of the Postal Service have also issued a resolution regarding the
exercise of the powers vested solely in
[[Page 74781]]
the Governors, as distinguished from the Board of Governors. The
resolution clarifies that the inability of the Board to constitute a
quorum does not inhibit or affect the authority of the Governors then
in office to exercise those powers vested solely in the Governors, upon
the concurrence of an absolute majority of the Governors then in
office.
DATES: Effective Date: November 14, 2014.
FOR FURTHER INFORMATION CONTACT: Julie S. Moore, Secretary of the
Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC
20260-1000. Telephone: (202) 268-4800.
SUPPLEMENTARY INFORMATION:
Overview
The Board of Governors of the Postal Service has promulgated a
resolution regarding the exercise of those powers reserved to the Board
upon the loss of a quorum of the Board. The resolution delegates to a
Temporary Emergency Committee, consisting of the remaining members of
the Board, those powers reserved to the Board that are needed to
provide for continuity of operations during the period of time in which
the Board is unable to form a quorum. In addition, the Governors of the
Postal Service have issued a separate resolution regarding the exercise
of the powers vested solely in the Governors, as distinguished from the
Board of Governors. The resolution clarifies that the inability of the
Board to constitute a quorum does not inhibit or affect the authority
of the Governors then in office to exercise those powers vested solely
in the Governors. The resolution states that except as otherwise
provided by statute, the Governors shall exercise those powers vested
in the Governors upon the concurrence of an absolute majority of
Governors then in office.
Background
While the powers of the Postal Service are generally directed by
the Board of Governors, 39 U.S.C. 202(a)(1), the statute broadly
authorizes the powers conferred on the Board to be delegated to a
committee of the Board, or to the Postmaster General, 39 U.S.C. 402.
Thus, the determination whether authority conferred on the Board by
statute should be delegated, or should be exercised through the
mechanism of the full Board, is ultimately made by the Governors. In
addition, certain other actions are reserved by statute solely to the
Governors, including the appointment and removal of the Postmaster
General and the establishment of prices and classifications for postal
products, 39 U.S.C. 202(c), 404(b), 3632. These authorities demonstrate
that the Governors, who are principal officers under the Constitution,
have ``ultimate control and authority'' over the Postal Service. Silver
v. United States Postal Serv., 951 F.2d 1033 (9th Cir. 1991).
The statute requires the Board to have a quorum of 6 members in
order to exercise those powers which have been reserved to the Board
rather than delegated, 39 U.S.C. 206(c). In anticipation of the
situation in which the Board is unable to constitute a quorum due to
the fact that an insufficient number of Governors are in office, the
Board issued a resolution regarding the continued exercise of those
powers that are reserved to the Board by its by-laws during a period in
which it is disabled from assembling a quorum. This resolution was
approved in a meeting in which a quorum of the Board was present.
Furthermore, the Governors determined that it was appropriate to
issue a resolution articulating their position concerning the exercise
of those powers vested solely in the Governors, as distinguished from
the Board. The Governors anticipated that questions may be raised as to
whether the inability of the Board to assemble a quorum affects the
Governors' ability to exercise those powers.
Powers Reserved to the Board of Governors
After considering the legal issues involved, including the specific
statutory structure under which the Postal Service operates, the Board
has promulgated a resolution that delegates to a Temporary Emergency
Committee certain powers reserved to the Board by its by-laws during
any period of time in which vacancies on the Board prevent it from
assembling a quorum. This delegation would also apply in emergency
circumstances in which death, incapacity, or disruption of
transportation or communications reasonably prevent a Board quorum from
being assembled.
The Temporary Emergency Committee consists of the remaining members
of the Board who are able to assemble, and exercises those powers
reserved to the Board by its by-laws that are necessary to provide for
continuity of operations. The Temporary Emergency Committee will
exercise those reserved Board powers necessary for operational
continuity until such time as sufficient members are available to
enable a quorum of the Board to convene.
Powers Reserved to the Governors
After considering the legal issues involved, the Governors have
issued a resolution that makes two determinations. First, the
resolution states that the inability of the Board to constitute a
quorum does not prevent the Governors then in office from exercising
those powers vested solely in the Governors, as distinguished from the
Board. Second, the resolution states that, except as otherwise provided
by statute, the Governors will exercise those powers upon the
concurrence of an absolute majority of Governors then in office.
The Governors issued this resolution after considering the plain
language of the statute. The Governors determined that, with one
express exception (concerning the removal of the Inspector General),
there is no requirement that a specific number of Governors be in
office in order to exercise those powers vested solely in them. Rather,
the statute generally specifies that there must be the concurrence of
an absolute majority of the Governors then ``in office'' or ``holding
office'' in order for the Governors to exercise those powers. See 39
U.S.C. 205(c)(1) (appointment and removal of Postmaster General);
3632(a) (establishment of rates and classifications for competitive
products).
The Governors also determined that it would raise serious
constitutional concerns to interpret the statute as preventing the
exercise of their powers if the Board cannot form a quorum. The powers
to appoint and remove the Postmaster General, revoke delegated Board
authority, and make pricing and classification decisions ensure that,
as principal officers under the Constitution, the Governors have
``ultimate control and authority'' over the Postal Service, and
therefore that the Postal Service's governance structure is
constitutionally sound. Silver, 951 F.2d at 1036-1041. Interpreting the
statute as imposing implicit limits on the ability of the Governors to
exercise those powers would be inconsistent with the court's holding.
Furthermore, such an interpretation would violate separation of powers
principles. In particular, it would violate Article II of the
Constitution for the Governors, who are directly accountable to the
President, to be completely prevented from removing the Postmaster
General, an inferior officer under the Constitution who exercises
significant executive authority.
The statute does not specify a particular requirement regarding the
exercise of the Governors' authority in
[[Page 74782]]
certain circumstances, including in the establishment of prices and
classifications for market-dominant products and the revocation of a
delegation of Board authority. In such circumstances, the Governors
determined that it was reasonable and appropriate to apply the same
rule as generally specified by the statute for the exercise of its
powers: action can be taken with the consent of an absolute majority of
the Governors then in office.
Stanley F. Mires,
Attorney, Federal Requirements.
[FR Doc. 2014-29344 Filed 12-15-14; 8:45 am]
BILLING CODE 7710-12-P