The Postal Regulatory Commission (Commission) establishes the following policy in 

regard to ex parte communications. The policy applies to all interactions, oral or in writing 

(including electronic), between Commission decision-making personnel, and the United States 

Postal Service (Postal Service) or public stakeholders in matters before the Commission. 

39 C.F.R. part 3000, subpart B. The policy seeks to provide additional guidance and explanation 

to the regulations set forth in 39 C.F.R. part 3008, as they relate to Commission employees’

responsibilities.

The policy is organized into nine sections. Section I explains the purpose for an ex parte 

policy. Section II explains that the ex parte communications policy applies to all Commission 

proceedings, with three exceptions. Section III explains that the ex parte communications policy 

applies to those persons with an interest in a matter before the Commission. It divides interested 

persons into two groups: Commission decision-making personnel and all others. Section IV

explains when matters are considered to be before the Commission. Section V explains when 

matters are no longer before the Commission. Section VI establishes a broad definition of ex 

parte communications and then limits the scope of that definition by providing specific 

exceptions. Section VII defines the limitations imposed upon ex parte communications. Section 

VIII describes the consequences for breaching the ex parte communications policy and provides 

remedies designed to ameliorate such breaches. Section IX describes special situations 

applicable to the Commission.

Issued By: David A. Trissell

Effective Date: June 30, 2016

Policy#: OGC-16-1

Ex Parte Communications

Policy
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I. The Purpose of Establishing an Ex Parte Communications Policy

An ex parte communications policy promotes transparency and openness in government 

concerning its interactions with public stakeholders and, in the case of the Commission, with the 

Postal Service. A principal goal of the policy is to prevent the perception that an entity may gain 

an unfair advantage over another by communicating with the Commission on an ex parte basis. 

Another goal is to reduce the risk that Commission decisions will be challenged in court based 

on alleged reliance on information obtained through inappropriate ex parte communications. 

The policy, by design, accounts for the varying nature of matters that come before the 

Commission, and the differing statutes, regulations, and case law applicable to each matter. In 

addition to this PRC Policy, the Commission has also published regulations which describe the 

statutory prohibitions on ex parte communications.

II. Proceeding Applicability of the Ex Parte Communications Policy

The Commission’s policy concerning ex parte communications is applicable to all 

Commission proceedings, except for:

 Public inquiry proceedings, undertaken to gather 

information and which are not intended to result in a 

binding Commission decision;

 International mail proceedings undertaken pursuant to part 

3017; and

 Specifically identified proceedings upon written directive 

from the Commission.

See 39 C.F.R. § 3008.1.

Public inquiry proceedings are initiated to gather information, and may or may not lead to 

a binding Commission decision. Depending upon the subject matter, whether or not a binding 

decision will be issued is usually known at the time the proceeding is noticed.

Public inquiry dockets that are not intended to lead to a binding Commission decision are 

typically non-adversarial in nature. As such, the concerns regarding certain parties receiving an 

unfair advantage from ex parte communications are largely mitigated. The Commission’s goal 

of information gathering, coupled with the fact that the proceeding is not contested by interested 

parties, justifies not applying ex parte restrictions to these types of proceedings.
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Public inquiry proceedings that are intended to lead to a binding Commission decision 

may be adversarial in nature. An example of these proceeding types are the service performance 

measurement decisions pursuant to 39 U.S.C. § 3691(b)(2). These proceedings are adversarial 

because the Commission is deciding whether or not the Postal Service is permitted to take certain 

actions. Thus, ex parte communications restrictions will apply where the intent of the 

proceeding is to issue a binding Commission decision.

International mail proceedings involve extensive consultations with outside parties 

including the Postal Service, the United States Department of State, and private sector 

stakeholders. A restriction on these communications would hinder the deliberative and 

collaborative process that is required by these undertakings. Thus, ex parte communications 

restrictions will not apply to international mail proceedings.

Finally, there may be instances where the Commission can articulate a benefit to 

suspending ex parte communications restrictions. In these instances, the Commission may direct 

in writing the suspension of ex parte communications restrictions.

III. Personnel Applicability of the Ex Parte Communication Policy

The ex parte communications policy only applies to Commission decision-making 

personnel, and all Commission decision-making personnel must abide by the policy in all 

interactions with the Postal Service and other public stakeholders. However, the policy mirrors 

the requirements imposed by regulation on all persons with an interest in a matter before the 

Commission as set forth in 39 C.F.R. part 3008. The policy applies to all interactions, oral or in 

writing (including electronic), between Commission decision-making personnel, and the Postal 

Service or public stakeholders. Any interaction between these groups concerning a matter before 

the Commission indicates an interest in a matter before the Commission. Persons included 

within the groups (A) Commission decision-making personnel, and (B) the Postal Service and 

public stakeholders, are described below.
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A. Commission decision-making personnel

Commission decision-making personnel include the following:

 The Commissioners and their staffs;

 The General Counsel and staff;

 The Director of the Office of Accountability and 

Compliance and staff;

 Contractors, consultants, and others hired by the 

Commission to assist with the Commission’s analysis and 

decision; and

 Any other employee who may reasonably be expected to be 

involved in the decisional process.

See 39 C.F.R. § 3008.4(a).

B. The Postal Service and public stakeholders

The Postal Service includes all Postal Service employees, contractors, consultants, and 

others with an interest in a matter before the Commission. See 39 C.F.R. § 3008.4(b).

Public stakeholders include all other persons not previously described with an interest in 

a matter before the Commission. This includes Commission non-decision-making personnel. 

Commission non-decision-making personnel include the following:

 All Commission personnel other than decision-making 

personnel;

 Commission personnel not participating in the decisional 

process owing to the prohibitions of 39 C.F.R. § 3001.8 

regarding no participation by investigative or prosecuting 

officers;

 The Public Representative and other Commission personnel 

assigned to represent the interests of the general public 

pursuant to 39 U.S.C. § 505 in the specific case or 

controversy at issue (regardless of normally assigned 

duties); and

 Contractors, consultants, and others hired by the 

Commission to provide an independent analysis of issues 

before the Commission (and Commission employees 

assigned thereto).

See 39 C.F.R. § 3008.4(c).
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IV. When Matters are Before the Commission

The Commission’s ex parte communications policy is only applicable once a matter is 

considered “before the Commission.”

In cases where the Commission must provide an opportunity for hearing on the record 

pursuant to 5 U.S.C. §§ 556-557, the determination of when a matter is considered before the 

Commission is governed by statute. As applicable to the Commission, this includes nature of 

postal services cases pursuant to 39 U.S.C. § 3661. Determining when such proceedings are 

before the Commission is governed by the following provision:

at such time as the agency may designate, but in no case shall they 

begin to apply later than the time at which a proceeding is noticed 

for hearing unless the person responsible for the communication 

has knowledge that it will be noticed, in which case the 

prohibitions shall apply beginning at the time of his acquisition of 

such knowledge.

5 U.S.C. § 557(d)(1)(E).

The Commission has made a policy decision to apply the above requirement to all 

proceedings before the Commission (with specific exceptions). The policy is implemented 

through the regulations set forth in 39 C.F.R. part 3008. The regulations specify that a matter is

considered to be before the Commission the earlier of: (1) the Commission issuing a notice of 

proceeding or the filing of a request to initiate a proceeding; or (2) at such time as the person

responsible for the communication has knowledge that a request to initiate a proceeding is 

expected to be filed. The regulations also provide the Commission with the discretion to 

consider a matter as being before the Commission at an earlier time if warranted. See 39 C.F.R. 

§ 3008.3(a) and (b).

The Commission has placed bounds on the second specification: “at such time as the 

person responsible for the communication has knowledge that a request to initiate a proceeding is 

expected to be filed.” 39 C.F.R. § 3008.3(b). The mere potential that a request may be filed 

does not place a matter before the Commission. An affirmative action announcing or actively 

preparing an actual request with the intent to file in a reasonable period of time must be present. 

39 C.F.R. § 3008.3(d)(4).
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Furthermore, the second specification has been waived where its application is

impractical. For example, proceedings involving period reports (such as the Annual Compliance 

Review) occur on a regular predictable basis. There is always knowledge that such proceedings 

are forthcoming. However, there also is benefit to allowing the free flow of information after the 

conclusion of each report, to better prepare for the following year’s report. Accordingly, 

proceedings involving statutorily required periodic reports will only be considered before the 

Commission upon the Commission issuing a notice of the proceeding. Mere knowledge of the 

eventual filing of a periodic report is deemed not sufficient to put the matter before the 

Commission.

V. When Matters are No Longer Before the Commission 

The Commission’s ex parte communications policy is no longer applicable once a matter 

is “no longer before the Commission.” This generally occurs upon the Commission’s issuance 

of the final order or decision in a docketed matter. See 39 C.F.R. § 3008.3(d)(1).

However, after a final order or decision is issued, there are four instances in which the 

Commission may continue or impose further restrictions upon communications: (A) requests for 

reconsiderations; (B) during the window for filing for appellate review; (C) during an appellate 

review until a final appellate decision is reached; and (D) upon remand from an appellate court.

A. Request for Reconsideration

An interested person, including the Postal Service, may ask for reconsideration of a 

Commission’s decision or final order. Upon the filing of a request for reconsideration, the 

matter is again before the Commission and the policies regarding ex parte communications 

apply. The matter is no longer before the Commission upon resolution of the issue under 

reconsideration. See 39 C.F.R. § 3008.3(d)(2).

B. Window for Filing of Appellate Review

An interested person, including the Postal Service, may seek appellate review of a 

Commission’s decision or final order, within 30 days of issuing the decision or final order. See

39 U.S.C. § 3663. If it appears likely that an appeal will be filed, the Commission may upon the 
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advice of the Office of the General Counsel (in consultation with the Department of Justice) 

continue or impose further restrictions upon communications as the needs of litigation require.

C. Once a Petition for Appellate Review is Filed

If an appeal is filed, the Commission may, upon the advice of the Office of General 

Counsel (in consultation with the Department of Justice), continue or impose further restrictions 

upon communications as the needs of litigation require.

D. Upon Remand from an Appellate Court

If a final decision or opinion of the Commission is remanded to the Commission by an 

appellate court, the matter is again before the Commission and the policies regarding ex parte 

communications apply. The matter is no longer before the Commission upon resolution of the 

issue under remand. See 39 C.F.R. § 3008.3(d)(3).

VI. Ex Parte Communications Defined

The Commission adopts a broad definition of ex parte communications subject to specific 

exceptions.

Ex parte communications include all communications, oral or 

written (including electronic), between Commission decisionmaking personnel, and the Postal Service or public stakeholders 

regarding matters before the Commission.

See 39 C.F.R. § 3008.2(a).

The following shall not be considered ex parte communications: (A) material filed using 

the Commission’s docketing system; (B) communications in the course of public Commission 

meetings, hearings, and other widely publicized Commission events; (C) questions regarding 

procedures, status, or scheduling; and (D) communications unrelated to the matter before the 

Commission.

A. Material filed using the Commission’s docketing system

All material that is timely filed, and that is either required or permitted to be filed 

pursuant to a Commission order, ruling, notice, information request, directive, or rule shall not 

be considered an ex parte communication. This includes but is not limited to all timely filed 
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complaints, appeals, requests, notices, motions, answers, responses, discovery related material, 

reports, testimony and supporting material, comments, reply comments, briefs, reply brief, and 

other requests of the Commission. See 39 C.F.R. § 3008.2(b)(1).

B. Commission meetings, hearings, and other widely publicized Commission 

events

Communications occurring during the course of Commission meetings or hearings (both 

where the Commission is required to provide an opportunity for hearing on the record, and 

otherwise), or other widely publicized Commission events, shall not be considered ex parte 

communications when: (1) the Commission provides advance public notice of the event, 

indicating the matter to be discussed; (2) the event is open to all interested persons; and (3) a 

summary of the event is provided for the record. See 39 C.F.R. § 3008.2(b)(2).

For events that include presentation of non-public materials, interested persons may be 

limited to persons complying with provisions intended to protect non-public materials. For 

hearings that require formal intervention, interested persons may be limited to persons that have 

formally intervened, and to persons that are included in the proceeding without the requirement 

to formally intervene.

The summary of the event may consist of a transcript and/or an audio recording, but at a 

minimum must provide a summary of the major topics discussed and positions presented. Only 

items appearing in the summary of the event may be relied upon by the Commission.

C. Procedural, status, and scheduling questions

Communications concerning Commission procedures, the status of matters before the 

Commission, or the procedural schedule of a pending docket shall not be considered ex parte 

communications. See 39 C.F.R. § 3008.2(b)(4).

D. Communications unrelated to the matters before the Commission

Communications unrelated to a matter before the Commission shall not be considered ex 

parte communications. See 39 C.F.R. § 3008.2(b)(5).
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VII. Limitations on Ex Parte Communications

The general policy of the Commission is to prohibit all ex parte communications for 

matters that are before the Commission. See 39 C.F.R. § 3008.5. The prohibition operates in 

both directions, i.e., neither Commission decision-making personnel, nor the Postal Service or a 

public stakeholder may initiate an ex parte communication. The onus is upon Commission 

decision-making personnel to inform the Postal Service or public stakeholder of this policy in the 

event of an attempt to initiate ex parte communications. The primary onus also is upon 

Commission decision-making personnel to inform the Commission of all breaches of this policy.

In cases in which the Commission must provide an opportunity for hearing on the record 

pursuant to 5 U.S.C. §§ 556-557, ex parte communications are prohibited by statute. As related 

to the Commission, the statutory prohibition is applicable only to nature of postal services cases 

pursuant to 39 U.S.C. § 3661.

The prohibition, as applicable to the Postal Service and public stakeholders, is stated as 

follows:

no interested person outside the agency shall make or knowingly 

cause to be made to any member of the body comprising the 

agency, administrative law judge, or other employee who is or may 

reasonably be expected to be involved in the decisional process of 

the proceeding, an ex parte communication relevant to the merits 

of the proceeding.

5 U.S.C. § 557(d)(1)(A). The prohibition, as applicable to Commission decision-making 

personnel, is stated as follows:

no member of the body comprising the agency, administrative law 

judge, or other employee who is or may reasonably be expected to 

be involved in the decisional process of the proceeding, shall make 

or knowingly cause to be made to any interested person outside the 

agency an ex parte communication relevant to the merits of the 

proceeding.

5 U.S.C. § 557(d)(1)(B).

The Commission effectively incorporates the same prohibition when considering all other 

matters before the Commission (with limited exceptions). The regulations are consistent with 
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the following policy concerns: (1) the simplicity, consistency, and understandability of having 

one general policy covering all types of matters before the Commission; (2) the expenditure of 

the least amount of Commission resources in administering the policy; (3) the presentation of the 

least legal risk; and (4) the most favorable perception of fairness and equity to persons 

interacting with the Commission.

Because of the remedies and penalties applicable to breach of the ex parte 

communications policy, the prohibition has a different significance when applied to nature of 

postal service cases, appeal of post office closing, and complaint cases than it has when applied 

to most other proceeding types. For nature of postal service cases, appeal of post office closing, 

and complaint cases the prohibition combined with the potential severe penalties acts as a strong 

deterrent to ex parte communications.

For all other matters, the penalty is effectively the requirement to disclose the 

communications, or risk that the communications will not be considered in the final decision. 

Although the policy is still intended to discourage ex parte communications, it effectively is a 

permit-but-disclose policy.

There is one important caveat to the ex parte communications policy. Nothing in this 

policy constitutes authority to withhold information from Congress.

VIII. Remedies and Penalties

Violation of the ex parte communications policy could result in court challenges to 

Commission decisions, which may lead to a decision being overturned, sent back to the 

Commission for reconsideration, or possibly other sanctions. Violation of the policy also may 

foster a perception that the Commission is providing an unfair advantage to one entity over

another by allowing “secret” communications.

For these reasons, when an ex parte communication occurs, every attempt should be 

made to remedy the situation. Unless a sufficient remedy is implemented, Commission 

decision-making personnel shall not rely on any information obtained through ex parte 

communications in any decision of the Commission. The primary remedy for an ex parte 

communications is prompt disclosure. The Commission will treat known sensitive material
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contained within an ex parte communications as confidential, subject to the Freedom of 

Information Act requirements. For example, the Commission may not allow outside persons 

access to information provided by the Postal Service and identified as exempt from public 

disclosure. Once the communication is disclosed, the provisions of 39 C.F.R. part 3007 may be 

applied to further protect the confidentiality of the material.

A. Remedy

As a preliminary step, Commission decision-making personnel shall inform others 

attempting to initiate ex parte communications of the Commission’s policy prohibiting ex 

parte communications. This may include providing procedural information on how to 

appropriately submit material so as to not raise ex parte communications issues. See

39 C.F.R. § 3008.6(a).

If ex parte communications cannot be discouraged and occur regardless of 

warning, the primary remedy for ex parte communications begins with prompt disclosure 

of those communications to all interested persons. See 39 C.F.R. § 3008.6(b). Statutory 

guidance is provided for matters where the Commission is required to provide an 

opportunity for hearing on the record, i.e., nature of postal services cases. The 

Commission shall follow this same guidance in all matters before the Commission.

[A] member of the body comprising the agency, administrative law 

judge, or other employee who is or may reasonably be expected to 

be involved in the decisional process of such proceeding who 

receives, or who makes or knowingly causes to be made, a 

communication prohibited by this subsection shall place on the 

public record of the proceeding:

(i) all such written communications;

(ii) memoranda stating the substance of all such oral 

communications; and

(iii) all written responses, and memoranda stating 

the substance of all oral responses, to the materials 

described in clauses (i) and (ii) of this 

subparagraph.

5 U.S.C. § 557(d)(1)(C).
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The typical method of disclosure shall be by filing of notice with the Commission. 

The notice shall identify the persons involved in the ex parte communication, the time 

period the ex parte communication occurred, and a copy of all associated material (either 

filed with the notice or separately). If the ex parte communication included oral 

conversation, a summary of the conversation must be included. The onus is upon 

Commission decision-making personnel to ensure that proper disclosure occurs. In some 

instances it may be acceptable to have the Postal Service or public stakeholder prepare 

and make the actual disclosure.

After disclosure, the Commission shall decide what, if any, additional steps are 

necessary. Additional steps typically are driven by fairness and due process concerns. 

Where the opportunity does not already exist, the Commission shall consider providing 

all interested persons an opportunity to respond to the disclosed material. See 39 C.F.R.

§ 3008.6(c).

B. Penalty

In most instances, an ex parte communication in violation of Commission policy 

will be remedied by prompt disclosure, with an appropriate opportunity to respond. 

However, in some instances, the breach of policy will be so severe as to detrimentally 

affect the rights of other interested participants. In these instances, the Commission may 

consider the imposition of additional penalties directed towards the breaching party.

The Commission is required to consider the application of penalties where the 

Commission is required to provide an opportunity for a hearing on the record, i.e., nature of 

postal services proceedings. The Commission also applies by regulation the same consideration 

of penalties to appeal of post office closing and complaint cases. Significant rights may be 

affected in these proceedings, which warrant the availability of penalties. See 39 C.F.R.

§ 3008.7.

The statutory requirement for the consideration of penalties, as applicable to the Postal 

Service and public stakeholders, is stated as follows:

upon receipt of a communication knowingly made or knowingly 

caused to be made by a party in violation of this subsection, the 
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agency, administrative law judge, or other employee presiding at 

the hearing may, to the extent consistent with the interests of 

justice and the policy of the underlying statutes, require the party 

to show cause why his claim or interest in the proceeding should 

not be dismissed, denied, disregarded, or otherwise adversely 

affected on account of such violation;

5 U.S.C. § 557(d)(1)(D). Again, the statutory requirement applicable to nature of postal 

services proceedings are extended to the appeal of post office closing and complaint 

cases by regulation.

For notice and comment type proceedings, which encompass most other matters before 

the Commission, the penalties made available either by statute or regulation do not apply. The 

level of rights affected when considering these matters typically do not warrant the availability of 

penalties. However, the Commission reserves the right to consider the weight of the evidence 

when considering ex parte material in these matters, even when the communications is disclosed.

Commission decision-making personnel wholly or partially responsible for breaching the 

ex parte communication policy may also incur sanctions, where disclosure appears to be an 

insufficient remedy. Based upon the seriousness of the breach, sanctions may range from a 

warning, all the way through recusal from participating further in the matter before the 

Commission.

IX. Special Situations

The following situations require special consideration: (A) consultations between the 

Commission and the Postal Service; (B) briefings by the Postal Service; (C) internal case specific 

Commission briefings; and (D) technical conferences.

A. Consultations between the Commission and the Postal Service

The Commission and the Postal Service regularly consult (at the highest organizational 

levels) to share information of interest concerning the operations of both organizations. These 

non-decisional sessions are limited to the sharing of information for the purpose of familiarizing 

each entity with the operations of the other organization. This may include reporting on the 

status of major initiatives within each organization. The consultations involve two-way 

conversations between the entities. The consultations are not open to the public.
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The policy on ex parte communications is applicable to consultations. For the purpose of 

consultations, all Commission personnel in attendance shall be considered decision-making 

personnel. Pending or anticipated matters before the Commission (as previously described in 

this policy) shall not be discussed, nor deliberations or decisional discussions take place, during 

these sessions. Public notice of the consultations shall be made following the session.

B. Briefings by the Postal Service to the Commission

Periodically, the Postal Service briefs the Commission (at all organizational levels) on 

matters of interest to provide the Commission with a more in depth understanding of specific 

subject matter. The briefings typically are a one-way provision of information, with 

Commission personnel in a “listening mode.” The briefings are not open to the public.

The policy on ex parte communications is applicable to briefings. For the purpose of 

briefings, all Commission personnel in attendance shall be considered decision-making 

personnel. Pending or anticipated matters before the Commission (as previously described in 

this policy) shall not be discussed, nor deliberations or decisional discussions take place, during 

these sessions.

C. Internal case specific Commission briefings

Periodically, Commission decision-making personnel brief Commissioners and other 

Commission decision-making personnel on matters before the Commission. The briefings are 

not open to the public. Commission non-decision-making personnel shall be excluded from 

Commission briefings concerning matters before the Commission. Attendance by the Public 

Representative (including assigned staff) in the specific matter before the Commission that is 

being briefed is a violation of this ex parte communication policy. Inadvertent attendance by 

non-decision-making personnel, other than the Public Representative and assigned staff, changes 

the status of that person to Commission decision-making personnel until the matter is no longer 

before the Commission.

D. Technical Conferences

Commission decision-making personnel may host or attend technical conferences 

concerning matters that are, or likely to be, before the Commission provided that: (1) advance 
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public notice of the technical conference is provided, and (2) the technical conference is open to 

all interested persons. Technical Conferences shall be considered outside the scope of the ex 

parte communications policy. See 39 C.F.R. §.3008.2(b)(3).

Typically, technical conferences related to a matter before the Commission are conducted 

off the record. The purpose of a technical conference is to facilitate a technical understanding of 

material. It is not to probe policy decisions, or to persuade that one approach is superior to 

another. To promote free discussion, presented material is not included in the record, and may 

not be referred to outside of the technical conference. This does not prohibit separate discovery 

to formulate record evidence based upon what was disclosed during a technical conference.

In dockets that require formal intervention, interested persons may be limited to persons 

that have formally intervened, and to persons that are included in the proceeding without the 

requirement to formally intervene. In dockets that include non-public materials, interested 

persons may be limited to persons complying with provisions intended to protect non-public 

materials.

Technical conferences may take other forms than what is described above. Before 

hosting or attending such a technical conference, the potential host or attendee should seek the 

opinion of the Office of General Counsel on whether or not attendance is permissible or 

advisable.