[Federal Register Volume 86, Number 228 (Wednesday, December 1, 2021)]
[Proposed Rules]
[Pages 68202-68203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26035]


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POSTAL REGULATORY COMMISSION

39 CFR Part 3065

[Docket Nos. RM2020-4; Order No. 6047]
RIN 3211-AA26


Market Dominant Products

AGENCY: Postal Regulatory Commission.

ACTION: Proposed rulemaking.

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SUMMARY: The Commission is proposing to add rules which describe 
instances when letters may be carried out of the mail, or when the 
letter monopoly does not apply to a mailpiece. The Commission invites 
public comment on the proposed rule.

DATES: Comments are due: January 3, 2022.

ADDRESSES: For additional information, Order No. 6047 can be accessed 
electronically through the Commission's website at https://www.prc.gov. 
Submit comments electronically via the Commission's Filing Online 
system at http://www.prc.gov. Those who cannot submit comments 
electronically should contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section by telephone for advice on filing 
alternatives.

FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 
202-789-6820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Relevant Statutory Requirements
II. Background
III. Basis and Purpose of Proposed Rules
IV. Proposed Rules

I. Relevant Statutory Requirements

    Section 601 of title 39 describes instances when letters may be 
carried out of the mail, or when the letter monopoly does not apply to 
a mailpiece. Section 601(a) sets forth the conditions under which a 
letter may be carried out of the mail, which include requiring that the 
letter be enclosed in an envelope, that the proper amount of postage is 
affixed to the envelope, and that the postage is canceled. 39 U.S.C. 
601(a). Section 601(b) provides the price and weight limitations such 
that the letter monopoly does not apply to letters charged more than 
six times the current rate for the first ounce of a Single-Piece First-
Class Letter or to letters weighing more than 12.5 ounces. 39 U.S.C. 
601(b)(1) and (2). Section 601(b)(3) references exceptions from the 
Postal Service regulations that purported to permit private carriage as 
in effect on July 1, 2005. 39 U.S.C. 601(b)(3); see also 39 CFR 310.1; 
39 CFR 320.2 through 320.8. Section 601(c) directs the Commission to 
promulgate any regulations necessary to carry out this section. 39 
U.S.C. 601(c).

II. Background

    The Postal Service has exclusive rights in the carriage and 
delivery of letters under certain circumstances.\1\ This letter 
monopoly is codified in the Private Express Statutes (PES), a group of 
civil and criminal statutes that make it unlawful for any entity other 
than the Postal Service to send or carry letters. See 18 U.S.C. 1693-
1699; 39 U.S.C. 601-606.\2\
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    \1\ This exclusive right is known as the ``letter monopoly.'' 
The Commission has previously discussed the background and history 
of the letter monopoly. See Advance Notice of Proposed Rulemaking to 
Consider Regulations to Carry Out the Statutory Requirements of 39 
U.S.C. 601, February 7, 2020 (Order No. 5422); 85 FR 8789 (Feb. 18, 
2020).
    \2\ Although these provisions of the U.S. Code are customarily 
referred to collectively as the ``PES,'' they do not all relate to 
private expresses or prohibit carriage of letters out of the mails.
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    Under the Postal Accountability and Enhancement Act (PAEA) of 
2006,\3\ Congress added Section 601(b)(3) to authorize the continuation 
of private activities that the Postal Service had purportedly permitted 
by regulations to be carried out of the mail.\4\ Congress gave the 
Commission the authority to promulgate any regulations necessary to 
carry out the section. 39 U.S.C. 601(c).
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    \3\ See Postal Accountability and Enhancement Act, Public Law 
109-435, 120 Stat. 3198 (2006).
    \4\ The House Report on the PAEA explains that the clause 
protects mailers and private carriers who had relied upon the 
regulations adopted as of the date of the bill. See H.R. Rep. No. 
109-66, 109th Cong., 1st Sess., pt. 1, at 58 (2005) (H.R. Rep. No. 
109-66), at 58.
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    On February 7, 2020, the Commission issued Order No. 5422, seeking 
input from the public about what regulations promulgated by the 
Commission may be necessary to carry out the requirements of 39 U.S.C. 
601. In particular, the Commission sought comments on 14 issues, such 
as whether the statutory requirements of Section 601 are clear and 
concise, whether any terms in the statute required further definition, 
and whether consumers and competitors can easily determine when a 
mailpiece is subject to monopoly protections. Order No. 5422 at 7-8.
    The Commission received a wide range of comments in response to 
Order No. 5422, but found it necessary to gather more information 
before promulgating regulations under Section 601. Thus, the Commission 
held this docket in abeyance and initiated a public inquiry seeking 
further input from the public.\5\ In particular, the Commission sought 
comments on two issues: (1) Whether Postal Service regulations 
administering current Sections 601(a), 601(b)(1), and 601(b)(2) should 
be adopted by the Commission; and (2) what private carrier services are 
within the scope of Section 601(b)(3). For both issues, the goal of the 
Commission was to determine whether it is necessary to clarify the 
statutory exemptions regarding the letter monopoly. The Commission 
sought information as to how best to resolve any ambiguities in the 
application of the exceptions. The Commission also inquired whether 
consolidating regulations and definitions under one section, rescinding 
redundant and/or conflicting sections, or standardizing the terminology 
used in the regulations would be helpful.
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    \5\ See Order Holding Rulemaking in Abeyance, July 2, 2021 
(Order No. 5929); Docket No. PI2021-2, Notice and Order Providing an 
Opportunity to Comment on Regulations Pertaining to 39 U.S.C. 601, 
July 2, 2021 (Order No. 5930); 86 FR 36246 (Jul. 9, 2021).

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[[Page 68203]]

    Having received adequate input from the public in order to propose 
regulations in this docket, the Commission issued an order, filed 
concurrently with this order, closing the public inquiry docket.\6\
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    \6\ See Docket No. PI2021-2, Order Closing Docket, November 24, 
2021 (Order No. 6046).
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III. Basis and Purpose of Proposed Rule

    The Commission finds it necessary to provide some clarity on the 
statute, and its relationship with the Postal Service's regulations. 
The Commission also finds it necessary to provide the public a process 
to seek clarification of the statute or the letter monopoly should the 
need arise in the future. Thus, the Commission proposes the following 
rules.
    First, the Commission proposes a provision stating that certain 
Postal Service regulations in parts 310 and 320 of this title are 
within the scope of these new rules and subject to Commission 
interpretation. The Postal Service asserts that only certain provisions 
in parts 310 and 320 of this title are subject to Commission authority, 
namely Sec.  310.1(a)(7) of this title, Sec.  310.2(b)(1) and (2) of 
this title, and Sec. Sec.  320.2 through 320.8 of this title. However, 
the Commission notes that Section 601(b)(3) specifically references 
Sec.  310.1 of this title in its entirety and thus, the entirety of 
that provision is under Commission authority. Additionally, the 
definitions referenced in Sec.  310.1 of this title are referenced in 
Sec.  320.1 of this title and therefore, the Commission also includes 
Sec.  320.1 of this title. The Commission also proposes a provision 
that if there is a conflict between the Postal Service regulations and 
Section 601, Section 601 takes precedence.
    Next, the Commission proposes a provision explicitly stating that 
the Postal Service no longer has authority to issue regulations 
interpreting, suspending or otherwise defining the scope of the letter 
monopoly. These provisions also include a prohibition on issuing 
guidance or entering into agreements purporting to do the same. The 
Commission also proposes a provision stating that it has the sole 
authority to promulgate regulations necessary to carry out Section 601.
    Finally, the Commission proposes a provision allowing interested 
parties to seek interpretation of Postal Service regulations or 
statutory language by filing a rulemaking petition with the Commission, 
or requesting an advisory opinion from the Commission's General 
Counsel. The Commission may also initiate its own proceeding. These 
procedures allow for interpretation of statutory and regulatory 
requirements that is accessible and transparent to the public.

IV. Proposed Rule

    The Commission proposes to place the new regulations clarifying 
Section 601 in new 39 CFR part 3065.
    Proposed Sec.  3050.1 states that the rules in this part implement 
39 U.S.C. 601. It lists the Postal Service regulations that are subject 
to the proposed rules and clarifies that the Commission has authority 
to interpret them. It also provides that in the event of a conflict 
between Section 601 and the Postal Service regulations, Section 601 
would supersede any applicable requirements.
    Proposed Sec.  3065.2 provides that the Commission has the sole 
authority to promulgate new regulations necessary to carry out Section 
601. It also prohibits the Postal Service from promulgating any new 
regulations, issuing any guidance, or entering into agreements 
purporting to suspend or otherwise define the letter monopoly. It 
further states that the Postal Service may not promulgate new 
regulations or issue any guidance purporting to interpret Section 601.
    Proposed Sec.  3065.3 provides two procedures for parties seeking 
clarification or interpretation of the statute or regulations 
concerning Section 601. It also states that the Commission may initiate 
its own proceeding for clarification or interpretation.

List of Subjects in 39 CFR Part 3065

    Administrative practice and procedure, Postal Service.
    For the reasons stated in the preamble, the Commission proposes to 
amend chapter III of title 39 of the Code of Federal Regulations as 
follows:

PART 3065--RULES FOR LETTERS CARRIED OUT OF THE MAIL

0
1. Add part 3065 to read as follows:

PART 3065--RULES FOR LETTERS CARRIED OUT OF THE MAIL

 Sec.
3065.1 Applicability and scope.
3065.2 Prohibition on new regulations.
3065.3 Procedure for seeking clarification or interpretation.

    Authority:  39 U.S.C. 503, 601.


Sec.  3065.1   Applicability and scope.

    (a) The rules in this part implement 39 U.S.C. 601, which generally 
describes when letters may be carried out of the mail.
    (b) Notwithstanding placement in Postal Service chapter I of this 
title, the following provisions in parts 310 and 320 of this title are 
within the scope of this part and the Commission has the authority to 
interpret them:
    (1) Sec.  310.1 of this title;
    (2) Sec.  310.2(b)(1) and (2) of this title; and
    (3) Sec. Sec.  320.1 through 320.8 of this title.
    (c) In the event of a conflict between 39 U.S.C. 601 and applicable 
regulations under parts 310 and 320 of this title, 39 U.S.C. 601 shall 
supersede any other generally applicable requirements.


Sec.  3065.2   Prohibition on new regulations.

    (a) The Postal Service may not promulgate any new regulations, 
issue guidance, or enter into agreements purporting to suspend or 
otherwise define the scope of the letter monopoly.
    (b) The Postal Service may not promulgate any new regulations or 
issue guidance purporting to interpret 39 U.S.C. 601.
    (c) The Commission has the sole authority to promulgate new 
regulations necessary to carry out 39 U.S.C. 601.


Sec.  3065.3   Procedure for seeking clarification or interpretation.

    (a) The Commission may, on its own motion, initiate a proceeding 
under this subpart pursuant to Sec.  3010.201(a) of this chapter.
    (b) The Commission may provide interpretation of these regulations 
or 39 U.S.C. 601 upon:
    (1) A party's request to initiate a rulemaking proceeding with the 
Commission pursuant to the requirements of Sec.  3010.201(b) of this 
chapter; or
    (2) a party's request for an advisory opinion from the General 
Counsel.

By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2021-26035 Filed 11-30-21; 8:45 am]
BILLING CODE 7710-FW-P