[Federal Register: March 26, 2001 (Volume 66, Number 58)]
[Notices]
[Page 16504-16509]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26mr01-105]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \1\ Douglas F. Carlson complaint on Sunday and holiday
collections, filed October 27, 2000 (complaint).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \2\ Answer of the United States Postal Service and motion to
dismiss, filed November 27, 2000 (answer).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).

---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------

    \9\ Douglas F. Carlson response to Postal Service reply to
answer in opposition to motion to dismiss, filed January 7, 2001
(Carlson reply).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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