16734 Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 

1This order focuses primarily on comments 

suggesting the need for changes. The Commission 

incorporates by reference its discussion of the 

rationale for the Commission’s structural design of 

these complaint and rate or service inquiry 

procedures as well as those issues that did not elicit 

comments published in PRC Order No. 101, August 

21, 2008, located at 73 FR 51888 (September 5, 

2008). 

2PRC Order No. 101, Notice and Order of 

Proposed Rulemaking Establishing Rules for 

Complaints, August 21, 2008 (Order No. 101). 

3Public Representative Comments on Proposed 

Rulemaking Establishing Rules for Complaints 

(Public Representative Comments); Initial 

Comments of Time Warner Inc. in Response to 

Order No. 101 (Time Warner Comments); Initial 

Comments of David B. Popkin (Popkin Comments); 

Comments of Pitney Bowes Inc. (Pitney Bowes 

Comments); Valpak Direct Marketing Systems, Inc. 

and Valpak Dealers’ Association, Inc. Comments 

Regarding Proposed Rules Governing the 

Disposition of Complaints (Valpak Comments); 

Comments of the Newspaper Association of 

America on Notice and Order of Proposed 

Rulemaking Establishing Rules for Complaints 

(NAA Comments); Initial Comments of the Greeting 

Card Association (GCA Comments), all filed on 

October 6, 2008. 

4 Initial comments of the United States Postal 

Service, October 7, 2008. 

5Motion for the Late Acceptance of the Initial 

Comments of the United States Postal Service, 

October 7, 2008 (Motion for Late Acceptance). The 

Postal Service’s Motion for Late Acceptance is 

granted. 

6Reply Comments of the Greeting Card 

Association (GCA Reply Comments); Valpak Direct 

Marketing Systems, Inc. and Valpak Dealers’ 

Association, Inc. Reply Comments Regarding 

Proposed Rules Governing the Disposition of 

Complaints (Valpak Reply Comments); Reply 

Comments of the United States Postal Service 

(Postal Service Reply Comments); Reply Comments 

of David B. Popkin (Popkin Reply Comments); 

Reply Comments of Time Warner Inc. in Response 

to Order No. 101 (Time Warner Reply Comments); 

all filed on October 27, 2008. 

7Reply Comments of Magazine Publishers of 

America, Inc., Alliance of Nonprofit Mailers, and 

American Business Media (MPA, et al. Comments); 

Reply Comments of Association for Postal 

Commerce, Alliance of Nonprofit Mailers, Direct 

Marketing Association and Magazine Publishers of 

America, Inc. (PostCom, et al. Comments), both 

filed on October 27, 2008. 

POSTAL REGULATORY COMMISSION 

39 CFR Parts 3001, 3030 and 3031 

[Docket No. RM2008–3; Order No. 195] 

Postal Complaints and Rate and 

Service Inquiries 

AGENCY: Postal Regulatory Commission 

ACTION: Final rule. 

SUMMARY: The Commission is adopting 

a final rule on procedures for certain 

postal complaints and rate and service 

inquiries. Their adoption is consistent 

with Commission obligations under a 

recent change in law. 

DATES: Effective May 11, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Sharfman, General Counsel, 

202–789–6820 and 

stephen.sharfman@prc.gov. 

SUPPLEMENTARY INFORMATION: Regulatory 

History: 73 FR 51888 (September 5, 

2008). 

I. Introduction and Background 

This order completes part of the series 

of rulemakings initiated by the Postal 

Regulatory Commission (Commission) 

to fulfill its responsibilities under the 

Postal Accountability and Enhancement 

Act (PAEA), Public Law 109–435, 120 

Stat. 3218 (2006). These final rules 

implement 39 U.S.C. 3662 setting forth 

procedures governing the disposition of 

complaints filed with the Commission. 

The rules replace existing regulations 

and are designed to enable the 

Commission to hear and resolve 

complaints in a streamlined and 

efficient manner while providing 

appropriate due process for all 

participants. These rules also set up a 

rate or service inquiry procedure for 

dealing with issues that do not appear 

to require the more formalized 

procedures applicable to complaints. 

The Commission appreciates the 

commenters’ thoughtful review of 

proposed parts 3030 and 3031 and their 

reasoned observations.1 The comments 

have been helpful in sharpening the 

issues and suggesting alternative 

resolutions. 

The Commission acknowledges that 

the commenters identify aspects of the 

proposed sections that would benefit 

from clarification or correction. 

Accordingly, the final rules differ from 

the proposed rules in ways designed to 

clarify and improve the rules in 

response to the comments received. The 

Commission, on its own accord, also 

makes some editorial and conforming 

changes to improve the clarity and 

readability of the rules or to conform 

them more closely to official publication 

requirements. 

These rules represent the 

Commission’s initial effort to establish a 

basic functional framework for 

addressing complaints and other similar 

written communications received by the 

Commission in accordance with its 

enhanced responsibilities under the 

PAEA. These regulations are designed to 

serve as a reasonable starting point. The 

Commission expects that these rules 

will evolve as the Commission grows 

more familiar with the types of issues 

that it may be asked to consider. If the 

Commission subsequently is made 

aware that the complaint or rate or 

service inquiry rules are not adequate or 

would benefit from additional detail, 

the Commission may begin proceedings 

to enhance these rules. 

Below, the Commission discusses the 

proposed and final rules with respect to 

the complaint and rate or service 

inquiry procedures. Part II sets forth the 

procedural history of this docket. Part III 

presents a more thorough discussion of 

the issues raised by the parties in 

response to the Commission’s notice of 

proposed rulemaking. Part IV provides a 

thorough section-by-section analysis of 

each final rule. The final rules 

themselves are set forth at the end of 

this order. 

II. Procedural History 

On August 21, 2008, the Commission 

issued a notice and order of proposed 

rulemaking to establish complaint rules 

in accordance with its new, enhanced 

responsibilities under the PAEA.2 The 

Commission set the deadline for 

comments on October 6, 2008, and the 

deadline for reply comments on October 

27, 2008. Id. On October 6, 2008, the 

Public Representative; Time Warner Inc. 

(Time Warner); David B. Popkin 

(Popkin); Pitney Bowes Inc. (Pitney 

Bowes); Valpak Direct Marketing 

Systems, Inc. and Valpak Dealers’ 

Association, Inc. (collectively, Valpak); 

Newspaper Association of America 

(NAA); and Greeting Card Association 

(GCA) filed comments.3 The Postal 

Service filed its comments on October 7, 

2008 4 together with a motion for late 

acceptance of its comments.5

On October 27, 2008, GCA, Valpak, 

the Postal Service, Popkin, and Time 

Warner, filed reply comments.6 Two 

groups of mailer organizations also filed 

joint reply comments on October 27, 

2008: the Magazine Publishers of 

America, Inc., the Alliance of Nonprofit 

Mailers, and American Business Media 

(collectively, MPA, et al.) and the 

Association for Postal Commerce, 

Alliance of Nonprofit Mailers, Direct 

Marketing Association, and Magazine 

Publishers of America, Inc. (collectively, 

PostCom, et al.).7

III. Discussions of Parts 3030 and 3031 

As discussed in more detail in Order 

No. 101, the PAEA imposes a new 

regulatory structure on the Postal 

Service which, among other things, 

elevates the role that complaints play in 

providing interested persons a forum for 

addressing issues arising under 

specified sections in title 39 of the U.S. 

Code. The Commission’s complaint 

authority stems from amended section 

3662, which provides, in relevant part, 

as follows: 

Any interested person (including an officer 

of the Postal Regulatory Commission 

representing the interests of the general 

public) who believes the Postal Service is not 

operating in conformance with the 

Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 16735 

8Compare Postal Service Reply Comments at 1– 

8 with Postal Service Comments at 5. 

requirements of the provisions of sections 

101(d), 401(2), 403(c), 404a, or 601, or this 

chapter (or regulations promulgated under 

any of those provisions) may lodge a 

complaint with the Postal Regulatory 

Commission in such form and manner as the 

Commission may prescribe. 

39 U.S.C. 3662(a). 

In Order No. 101, the Commission 

proposed to revise its existing complaint 

procedures and add procedures to deal 

with rate or service inquiries that are 

not filed as complaints to implement 

amended section 3662 and fulfill the 

intent of Congress as expressed in the 

text of the PAEA. 

To carry out this Congressional intent, 

the Commission believes that it is 

appropriate to focus more of its limited 

resources on important issues that raise 

rate and service concerns with broad 

implications or unfair competition 

issues, and less of its resources on 

issues that can more easily be remedied 

by postal management on a local level. 

Toward these ends, the Commission’s 

final rules adopt a two-tiered approach 

to deal efficiently and expeditiously 

with written communications directed 

to the Commission regarding the Postal 

Service. These communications fall into 

one of two categories: (1) Complaints, 

and (2) rate or service inquiries. Written 

communications that satisfy the form 

and manner requirements discussed 

below are treated as ‘‘complaints’’ under 

section 3662. Other written 

communications that do not meet the 

form and manner requirements that seek 

assistance with Postal Service-related 

problems would be treated as rate or 

service inquiries provided they include 

some minimal identifying information. 

The remainder of this part addresses 

the parties’ comments and the 

Commission’s rationales for either 

changing the final rules from their 

proposed form or issuing the final rules 

as proposed. With respect to certain 

issues, the Commission believes that no 

changes from the proposed rules is 

necessary, but that the parties and 

general public will benefit from 

clarifying guidance from the 

Commission. These issues and guidance 

are also discussed below. 

A. Two-Tier System 

The Postal Service initially seemed to 

support the proposed rate or service 

inquiry procedures but in its reply 

comments, ‘‘strongly recommends 

eliminating the provisions of the 

proposed rules establishing a role for 

the Commission in regulating the 

handling of ordinary rate and service 

inquiries.’’ 8 Its reply comments argue 

against the rate or service inquiry 

provisions for the following reasons: (1) 

It believes that part 3031 will create an 

‘‘overly bureaucratic encumbrance’’ that 

will interfere with the efficient 

operation of the Postal Service; (2) it 

will force the Postal Service to divert 

resources toward developing different 

procedures for handling inquiries from 

the Commission; (3) the Postal Service 

already has a variety of channels by 

which customers can submit their 

inquiries; (4) part 3031 will encourage 

customers to bypass the Postal Service’s 

more direct avenues of resolving issues; 

and (5) it believes that the Commission 

does not have a statutory basis for 

issuing rules under part 3031. Postal 

Service Reply Comments at 1–8. 

Valpak also asserts that there is no 

statutory basis for the Commission’s rate 

or service inquiry rules since they are 

not complaints under section 3662. 

Valpak Comments at 16–20. Valpak 

contends that if rate or service inquiries 

are considered a second, lower tier of 

complaints under section 3662, then 

‘‘the proposed rules would be deficient 

in failing to provide full complaint 

treatment to the second type of 

complaints.’’ Id. at 17. Valpak is also 

concerned about the situation where an 

interested person meets all the filing 

requirements of section 3030.10 but is 

‘‘denied’’ complaint status because the 

complaint fails to meet the criteria of 

paragraph 3030.13(a). Id. at 18. 

Popkin is concerned that the rate or 

service inquiry rules give the Postal 

Service the option to submit less 

responsive information in a longer 

period of time than the Postal Service’s 

Postal Operations Manual requires. 

Popkin Comments at 3. 

On reply, Time Warner notes that the 

Commission uses section 503 as its 

statutory basis for its authority to issue 

rules under part 3031. Time Warner 

Reply Comments at 2. It also contends 

that section 3662 does not require a 

hearing on the record under sections 

556 and 557 of the Administrative 

Procedure Act. It believes that the 

Commission need only follow the 

requirements of informal adjudications 

under section 555. Id. at 6–8. 

Pitney Bowes and the Public 

Representative generally support the 

Commission’s proposed rate or service 

inquiry procedures believing they are 

sound and satisfy the accountability and 

transparency objectives of the PAEA 

through the Commission’s monitoring 

role. Pitney Bowes Comments at 5–6; 

and Public Representative Comments at 

1–2. 

Commission analysis. In part, the rate 

or service inquiry procedures are 

designed to enhance the accountability 

and transparency of the Postal Service 

to the public it serves. The Postal 

Service should be accessible and the 

public should be able to see how the 

Postal Service handles issues that arise 

with customers. Part 3031 does not 

require the Postal Service to create an 

entirely new set of procedures for 

dealing with customer inquiries. The 

rules merely require the Postal Service 

to send a written response to an inquirer 

and send a copy of that response to the 

Commission. Popkin notes that the 

Postal Service’s own Postal Operations 

Manual requires the Postal Service to 

respond to customer issues and that part 

3031 requires a lesser degree of 

formality than the Postal Service’s own 

internal operating procedures. See 

Postal Operations Manual sections 165– 

167. Thus, part 3031 should not be 

overly burdensome on the Postal 

Service or force the Postal Service to 

create entirely new procedures for 

dealing with inquiries from the 

Commission. 

The Postal Service’s concerns that 

part 3031 would encourage customers to 

bypass the Postal Service’s current 

variety of direct avenues of 

communication are unfounded. The 

Commission’s part 3031 rules are meant 

to be an additional method of contact 

for mailers. The Commission’s proposed 

procedures contemplate a longer turnaround time for inquiries then the Postal 

Service’s internal operating procedures. 

If anything, this would discourage 

customers from using the Commission’s 

rules in part 3031 as a primary tool for 

dealing with issues with the Postal 

Service. 

Valpak and the Postal Service’s 

argument that the Commission does not 

have authority to issue the rate or 

service inquiry rules in part 3031 

reflects a fundamental 

misunderstanding of the relationship of 

part 3031 to part 3030. As Time Warner 

notes, the Commission’s authority for 

issuing the rules in part 3031 is section 

503, not section 3662. As the 

Commission stated in Order No. 101: 

[T]he Commission believes that it should 

be informed concerning matters that may 

bear on future complaints or its other 

responsibilities under the PAEA. By helping 

facilitate public communication with the 

Postal Service, the Commission furthers the 

PAEA goal of increased accountability and 

transparency of the Postal Service. 

The Commission believes also that its 

enhanced authority under the PAEA may 

encourage more individuals to seek the 

Commission’s assistance in resolving their 

issues with the Postal Service. As a result, 

the proposed rules provide the mailing 

public with an avenue for bringing their 

concerns to appropriate Postal Service 

personnel. 

16736 Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 

9Popkin comments that this section is not clear, 

but does not state what exactly is not clear about 

it or make a suggestion on how to clarify it. Without 

such guidance, the Commission does not believe 

altering this provision at this time will improve the 

rule. 

10Several parties argue that the Commission’s 

rules may not be in compliance with the 

requirements of 5 U.S.C. 556. As Time Warner 

points out, 39 U.S.C. 3662 does not require the 

Commission to conduct its complaint proceedings 

on the record after an opportunity for a hearing as 

was required by former section 3624. See Pension 

Benefit Guaranty Corp. v. LTV, 496 U.S. 633, 655– 

56 (1990). Time Warner Reply Comments at 6–9. 

Nonetheless, the Commission’s complaint rule 

procedures are in compliance with sections 556 and 

557 of title 5. 

Rate and service inquiry procedures also 

allow the Commission to ensure that issues 

raised and resolved under these rules remain 

isolated incidents. The rate or service inquiry 

process will help the Commission in 

deciding whether to address these matters in 

a more formal manner, which could 

potentially include the initiation of a 

complaint proceeding by a public 

representative or the appointment of an 

investigator to explore the matter. 39 U.S.C. 

503 allows the Commission to promulgate 

these regulations to carry out its enhanced 

responsibilities under the PAEA. 

Order No. 101 at 10–11. This statement 

provides the Commission’s rationale for 

determining that the rules in part 3031 

allow the Commission to ‘‘carry out 

their functions and obligations * * * as 

prescribed under this title [title 39 of the 

U.S. Code].’’ 39 U.S.C. 503. With a 

limited exception discussed below, the 

Commission’s rate or service inquiry 

procedures have no basis under 39 

U.S.C. 3662. 

The one potential circumstance where 

the Commission may use a portion of its 

rate or service inquiry procedures with 

respect to a complaint filed under 

section 3662 occurs when the 

Commission exercises its authority in 

section 3030.13. Section 3030.13 

provides that if the Commission 

determines that there is a reasonable 

likelihood that the part 3031 procedures 

may result in resolution of the issues 

raised by a complaint, the Commission 

may apply the procedures of section 

3031.11 provided that the complaint 

does not fall within one of the 

exceptions listed in paragraphs 

3030.13(a)(1)–(4).9 This furthers the 

Commission’s goal of encouraging 

settlement. However, section 3030.13 

also provides that if application of 

section 3031.11 procedures does not 

result in resolution of the issues raised 

by the complaint, it is sent back to the 

Commission to be resolved under part 

3030. See paragraph 3030.13(c). Thus, 

all complaints that meet the filing 

requirements of section 3030.10 and 

other applicable criteria are given full 

consideration under part 3030. 

B. Burden of Proof 

NAA suggests that the Commission’s 

complaint rules address who has the 

burden of proof after the Commission 

makes a determination that the 

complaint raises a material issue of fact 

or law and begins proceedings on the 

complaint. It believes that the burden of 

proof should be on the Postal Service. 

NAA provides the following four 

reasons in support of this contention. 

First, it believes that because the Postal 

Service is a government service 

operated by the Federal Government, it 

is appropriate to ask that a 

governmental service bear the burden of 

demonstrating that it acts in accordance 

with the law. NAA Comments at 5–9. 

Second, NAA believes that because 

the structure of the PAEA’s rate-setting 

system focuses primarily on compliance 

with the price cap at a class level, 

Commission review of proposed rate 

changes do not result in a finding by the 

Commission that a particular rate is 

‘‘lawful.’’ Third, it believes that the 

statutory provisions regarding the 

annual compliance review support 

placing the burden on the Postal 

Service. Fourth, NAA contends that 

when the regulated entity controls all 

the data likely to be relevant to a 

complaint, it is appropriate to place the 

burden on that entity. For these reasons, 

NAA proposes three separate burden of 

proof standards depending on the 

subject matter of the complaint and 

whether the issue has been subject to an 

annual compliance determination. Id. at 

8–9. 

Valpak states that ‘‘it may be possible 

that the Commission could fulfill its 

statutory obligation to address and 

resolve burden of proof issues by 

waiting until they arise in litigating 

specific complaints.’’ However, it 

believes that it is ‘‘preferable’’ for the 

Commission to address the issue in this 

docket. Valpak Reply Comments at 3–5. 

It believes that the complainant should 

typically bear the burden of proof to 

show the existence of a material issue of 

fact or law, but once that showing is 

made, it argues that the Postal Service 

should bear the ultimate burden of proof 

that its rates and practices comply with 

applicable law and regulations since it 

possesses all the relevant information. 

Id. at 6–8. 

The Postal Service believes that 

whether burden shifting in a manner 

that diverges from the ordinary 

adjudicatory process is appropriate may 

depend on the nature and type of 

complaint before the Commission. 

Therefore, noting that this is ‘‘a complex 

issue,’’ the Postal Service suggests that 

the final rules not assign a burden of 

proof upon any specific party. Postal 

Service Reply Comments at 13–14. 

MPA, et al. argue that NAA’s proposal 

is contrary to 5 U.S.C. 556(d).10 MPA, et 

al. Reply Comments at 2. It cites Nat’l 

Ass’n of Recycling Industries, Inc. v. 

ICC, 627 F.2d 1341, 1344 (D.C. Cir. 

1980) and Council of Forest Industries 

of British Columbia v. ICC, 570 F.2d 

1056 (D.C. Cir. 1978) in support of its 

argument that the burden of proof 

should be on the complainant. 

Nonetheless, MPA, et al. emphasizes 

that the placement of the burden of 

proof on the complainant is not without 

limit. Burden shifting may be 

appropriate if, for example, the Postal 

Service fails to respond to legitimate 

discovery requests. 

Time Warner believes that NAA’s 

rationale for concluding that the Postal 

Service should bear the burden of proof 

in complaint proceedings is ‘‘ill 

conceived.’’ Time Warner Reply 

Comments at 4–6. First, Time Warner 

contends that NAA’s notion that it is 

appropriate to shift the burden to the 

Postal Service because it is a 

government service is contrary to the 

ordinary presumption of regularity 

afforded to agency actions. Second, 

Time Warner argues that NAA’s crossreference to the annual compliance 

review statutory provisions is 

immaterial. If anything, the absence of 

an express provision on the burden of 

proof in the complaint provision similar 

to the annual compliance determination 

provisions in the statute implies that the 

burden of proof would not lie with the 

Postal Service. Third, Time Warner 

takes issue with NAA’s contention that 

the rebuttable presumption under 

paragraph 3653(e) implies that Congress 

intended for the Postal Service to have 

the burden in cases dealing with those 

matters. It argues that a rebuttable 

presumption only relieves the Postal 

Service of the burden of producing some 

evidence of legality at the outset of the 

proceeding by shifting the initial burden 

of production of evidence of illegality to 

the complaining party. 

Commission analysis. Both NAA and 

Valpak correctly note that the 

Commission’s current rules do not 

address which party has the burden of 

proof. Valpak Reply Comments at 2–3; 

and NAA Comments at 5–6, and n.6 

(noting that ‘‘Commission decisions on 

complaints under the Postal 

Reorganization Act typically recited the 

parties’ contentions and then presented 

the Commission’s discussion and 

decision. Burdens of proof were 

typically not mentioned’’.) This 

demonstrates that Commission 

Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 16737 

11Similarly, both the Postal Service and Time 

Warner argue that the Commission has discretion to 

refrain from beginning proceedings on a complaint 

even if the complaint raises a material issue of fact 

or law. Postal Service Reply Comments at 16; Time 

Warner Reply Comments at 28. On the other hand, 

GCA, NAA, Popkin, and Valpak appear to argue 

that the Commission must hear all complaints that 

raise a material issue. GCA Comments at 2; NAA 

Comments at 3; Popkin Comments at 2; and Valpak 

Comments at 18–19. At this time, it is unnecessary 

for the Commission to determine whether it has 

discretion in a particular case to refrain from 

hearing a complaint that meets the requirements of 

part 3030 subpart B. Here, the Commission is 

promulgating procedural rules for parties to follow 

in submitting a complaint for the Commission’s 

consideration. It is not attempting to define the 

complete scope of its complaint jurisdiction. The 

Commission will likely need to make 

determinations on the scope of its complaint 

authority when circumstances arise where such a 

determination becomes an issue with respect to the 

facts and circumstances of a particular complaint. 

The Commission believes that it is more 

appropriate to make such decisions with an 

underlying factual predicate upon which to base 

such decisions. 

12Public Representative Comments at 2–3; 

Popkin Comments at 2; and NAA Comments at 12– 

13. 

complaint rules can function effectively 

without promulgating rules of general 

applicability addressing burdens of 

proof. 

Additionally, while there may be 

certain instances where burden shifting 

is appropriate, with so few complaints 

yet filed under the PAEA, the 

Commission is not confident that it 

could effectively forecast the universe of 

possible future complaint scenarios 

where it would be best to place the 

burden of proof on the Postal Service 

instead of the complainant. Addressing 

the issue on a case-by-case basis, on the 

other hand, will provide the 

Commission with the flexibility to apply 

appropriate legal standards in varying 

factual circumstances.11 The Postal 

Service suggests this resolution, and 

Valpak concedes that the Commission 

could fulfill its statutory mandate in this 

manner. Postal Service Reply Comments 

at 13–14; and Valpak Reply Comments 

at 3. 

Moreover, there is question as to 

whether the Commission could even 

issue a final rule addressing burden of 

proof at this time without another round 

of notice and comment. Notice and 

comment rulemaking require an 

agency’s proposed rule and its final rule 

to differ only insofar as the latter is a 

‘‘logical outgrowth’’ of the former. See 

Environmental Integrity Project v. EPA, 

425 F.3d 992 (DC Cir. 2005); and Shell 

Oil Co. v. EPA, 950 F.2d 741, 750–51 

(DC Cir. 1991). It may be difficult to 

support a claim that burden of proof 

regulations would be a ‘‘logical 

outgrowth’’ of the proposed rules which 

did not address or hint at burdens of 

proof. 

Accordingly, for these reasons, the 

Commission finds that it would be best 

to gain experience with the effectiveness 

of the complaint rules prior to 

proposing any rules on allocating the 

burden of proof between the parties. If 

the Commission finds, through 

experience, that such rules may be 

helpful in fulfilling its statutory 

responsibilities, it may propose rules on 

burdens of proof at that time or upon 

petition of an interested person. 

C. Meet or Confer Requirement 

Paragraph 3030.10(a)(9) requires the 

complainant to certify that it has 

attempted to ‘‘meet or confer’’ with the 

Postal Service in an effort to resolve or 

settle its issues prior to filing a 

complaint. Several parties seek 

clarification from the Commission on 

the extent and effort necessary to 

comply with this requirement.12 These 

commenters are concerned that the 

certification requirement may be 

interpreted ‘‘as to allow litigation over 

whether such a meeting was attempted, 

or whether, if attempted, the meeting 

was sufficiently substantive.’’ See, e.g., 

NAA Comments at 13. Several 

commenters suggest that the Postal 

Service be directed to designate one or 

more appropriate individuals with 

whom the complainant should attempt 

to make contact in order to satisfy this 

requirement. Id. The Postal Service 

agrees with this proposal and suggests 

that the designee be its general counsel. 

Postal Service Reply Comments at 10– 

11, 17. 

Time Warner suggests that the 

Commission carve out an exception to 

the ‘‘meet or confer’’ requirement. In 

particular, Time Warner argues that the 

Commission should waive the 

requirement if doing so would be futile 

or unduly burdensome. Time Warner 

Comments at 7. The Postal Service does 

not support this exception. It believes 

that all parties will act in good faith in 

an attempt to settle matters. 

Commission analysis. The majority of 

the parties’ comments stem from the 

Commission’s admittedly limited 

discussion in Order No. 101 of the 

intended scope of the ‘‘meet or confer’’ 

requirement. Accordingly, the 

Commission provides a more complete 

explanation in this order as to the level 

of ‘‘meeting or conferring’’ that the 

Commission anticipates will satisfy the 

requirements of paragraph 3030.10(a)(9). 

This should alleviate the vast majority 

of the commenters’ concerns. 

The goal of the meet or confer 

provision is to ensure that complainants 

attempt to resolve their issues with the 

Postal Service prior to bringing a more 

formal proceeding to the Commission 

for its consideration. Under the 

Commission’s prior complaint 

procedures, in some cases, the first time 

that the appropriate officials at the 

Postal Service were notified of the 

existence of the issues leading to the 

complaint was upon the complaint’s 

filing. Some of these issues could have 

been resolved without filing a complaint 

with the Commission if the appropriate 

officials at the Postal Service had been 

made aware of the issues prior to the 

filing. 

The Commission’s meet or confer 

requirement is simply an attempt to 

make sure that the appropriate 

individuals at the Postal Service—those 

with authority to resolve the issues 

raised by complainant—are aware of the 

issues and are given a reasonable 

opportunity to resolve them prior to the 

complainant’s filing with the 

Commission. An e-mail, letter, or 

similar attempt at communication with 

appropriate Postal Service personnel 

explaining the nature of the 

complainant’s concerns should 

ordinarily initiate the meet or confer 

requirement. After the complainant has 

initiated communication, the Postal 

Service has a reasonable time to resolve 

the issue, or notify the complainant that 

a resolution in a reasonable period of 

time is likely. What constitutes a 

‘‘reasonable period of time’’ will vary 

depending on the circumstances and 

complexity of the issues involved. If the 

Postal Service believes settlement to be 

unlikely, it should immediately notify 

the complainant of this fact. 

In an effort to identify a designated 

appropriate individual within the Postal 

Service who has the authority to settle 

issues raised by a complaint, 

commenters suggest, and the Postal 

Service agrees, that the Postal Service’s 

general counsel be designated as the 

appropriate official to whom 

complainants should direct their meet 

or confer communications. The 

Commission finds this reasonable and 

therefore changes its final rule from the 

proposed rule in order to state that the 

complainant’s meet or confer attempts 

be directed to the Postal Service’s 

general counsel. 

Time Warner’s proposal, while 

superficially appealing, could result in 

unnecessary litigation over the issue of 

whether a meet or confer attempt would 

be futile. The meet or confer 

requirement is not burdensome. It is a 

procedural mechanism which could 

lead to resolution of issues prior to a 

complaint being filed. For these reasons, 

the Commission does not create an 

16738 Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 

13Several parties raise a concern that an 

investigator will act as a decision-maker or ‘‘fact 

finder.’’ See, e.g., PostCom, et al. Reply Comments 

at 6–9. The investigator will not be involved in the 

Commission’s decision-making responsibilities 

with respect to that particular complaint. An 

investigator is neutral, in the sense that the 

investigator is not seeking to advocate on behalf of 

a particular party. One of the major differences 

between the role of the Public Representative 

appointed under section 505 and the investigator is 

that the Public Representative advocates on behalf 

of the interests of the general public, whereas the 

investigator has no client. The investigator seeks to 

help the Commission base its decision on all 

relevant facts. In the ordinary case, investigators 

will develop information from their own 

observations, interviews, and site visits, instead of 

directly from the parties. Investigators will not 

serve as mediators or arbitrators, though it bears 

mention that the Commission may appoint a 

different person to act as a mediator in complaint 

cases if it believes that such an alternative dispute 

resolution process may aid in resolving the 

complaint. See section 3030.40. 

14The appropriate level of confidentiality that the 

Commission affords to certain information is the 

subject of another rulemaking docket. See Docket 

No. RM2008–1. 

15 Valpak makes an argument based on the 

placement of the rule within the regulatory scheme 

that the investigator’s appointment only lasts until 

the Commission makes a finding on whether the 

complaint raises a material issue of fact or law. 

Valpak Reply Comments at 10–11. Section 3030.21 

is not limited in that manner. The regulation is 

contained in subpart C of part 3030 which deals 

with the collection of supplemental information 

throughout the proceeding—prior to and after a 

Commission finding that a material issue of fact or 

law exists. See also Order No. 101 (using the 

following as an example of when an investigator 

might be appropriate: ‘‘If the Commission finds a 

complaint to be justified and remedial action 

appropriate, the Commission might seek the 

assistance of an investigator to ensure that any 

proposed remedial action is tailored narrowly to 

address the violation without causing undue or 

unnecessary disruption)’’. 

16Several comments seek clarification as to 

whether an investigator will have the authority to 

issue subpoenas on behalf of the Commission. See, 

e.g., NAA Comments at 11–12. An investigator is 

not qualified to issue subpoenas. See 39 U.S.C. 

504(f)(2). 

exception to the meet or confer 

requirement of paragraph 3030.10(a)(9). 

D. Scope of Investigator Authority 

Several commenters ask the 

Commission to clarify the role, 

responsibilities, activities, and powers 

of an investigator appointed under 

section 3030.21. See, e.g., PostCom, et 

al. Reply Comments at 2–9; and NAA 

Comments at 11–12. It appears that 

some parties are concerned that an 

investigator could supplant the 

complainant’s control of the 

development and presentation of its 

case. See, e.g., id. 

The Public Representative seeks 

clarification on whether the investigator 

can call conferences, accept written 

documents or pleadings, take testimony, 

issue subpoenas, or conduct on-site 

visits. Public Representative Comments 

at 4. NAA seeks clarification on whether 

an investigator would be able to invoke 

the Commission’s subpoena power and 

whether an investigator would be 

recused from the Commission’s 

decision-making responsibilities. NAA 

Comments at 12. 

The Postal Service believes that if the 

Commission sets forth a framework and 

guidelines for how investigators are 

expected to be deployed, it would help 

ensure the efficiency and effectiveness 

of the Commission’s investigation, 

minimize disruption of postal 

operations, and protect confidentiality 

of any relevant law enforcement 

activity. Postal Service Comments at 5– 

7. 

Valpak sees the investigator’s role as 

completed once the Commission makes 

a determination as to whether a material 

issue of fact or law exists. Valpak Reply 

Comments at 10. Similarly, PostCom, et 

al. seek clarification as to when in the 

procedural process an investigator may 

be introduced. PostCom, et al. Reply 

Comments at 2. It believes that the 

examples provided in the preamble of 

Order No. 101 create confusion on this 

temporal issue, and it argues that the 

statute does not contemplate any role 

for an investigator before the 

Commission makes an initial 

determination of materiality. Id. at 3–4. 

Commission analysis. The majority of 

the parties’ comments stem from the 

Commission’s limited discussion in 

Order No. 101 of the role, 

responsibilities and powers of an 

investigator appointed under section 

3030.21. Accordingly, the Commission 

believes that the parties and the general 

public will benefit from a more detailed 

explanation of the functions that the 

Commission envisions a typical 

investigator undertaking. This should 

alleviate the vast majority of the 

commenters’ concerns. 

The investigator will not play a 

dominant role in complaint 

proceedings. The Commission 

anticipates that its use of an investigator 

will be an unusual occurrence. It 

envisions the investigator helping the 

Commission as a ‘‘fact gatherer’’—not 

fact finder 13—in extraordinary 

circumstances where more conventional 

methods would delay or provide 

incomplete information for the 

Commission to base its decision. 

An investigator will produce a public, 

written report on the facts and 

circumstances of the particular case or 

on any specific task that the 

Commission assigns. When this report is 

complete, parties will be able to view 

the report, including the underlying 

data substantiating the report, assuming 

that appropriate levels of confidentiality 

are maintained, and provide 

comments.14

The commenters seek clarification as 

to the investigator’s authority. Similarly, 

several parties seek clarification on the 

timing of an investigator’s appointment. 

The commenters appear to be concerned 

that they will be unaware of the size and 

scope of the investigation until the 

investigator releases a final report at an 

undetermined time during the 

proceeding. The Commission does not 

envision using the investigator in this 

way as it does not foster the PAEA’s 

goals of enhanced transparency and 

accountability. 

The Commission believes it is 

important to clarify some of the 

potential methods it may use for 

ensuring that the investigators will not 

be conducting their investigations in 

secret. The role of investigator is new 

and the Commission has not yet gained 

experience as to the benefits and 

drawbacks of its use. Nonetheless, the 

Commission believes the following 

discussion on these topics will be 

beneficial. 

The Commission anticipates that the 

powers of an investigator will vary 

depending on the facts and 

circumstances of the particular case to 

which the investigator is assigned, and 

is therefore not appropriate for a rule of 

general applicability. For the same 

reason, the Commission does not 

believe that it can specify when a 

typical investigation will begin or end.15

The Commission order appointing an 

investigator in a particular case will 

detail the size and scope of the 

investigator’s responsibilities and 

authorities. The Commission anticipates 

that all interested parties will cooperate 

fully with the investigator by providing 

all information needed to complete the 

assigned investigation.16 The parties 

will be allowed to communicate with 

the investigator; there will not be any ex 

parte prohibition. How to best conduct 

the investigation meeting the goals and 

using the tools that the Commission set 

out in its appointing order will be at the 

discretion of the particular investigator. 

E. Appointment of a Public 

Representative 

Valpak argues that the PAEA 

mandates that the Commission have one 

permanent officer of the Commission to 

represent the interests of the general 

public in complaint cases. Valpak 

Comments at 7–15. Valpak contends 

that the current Commission practice of 

appointing different public 

representatives in various cases reduces 

the likelihood that a public 

representative will initiate a 

Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 16739 

17 Valpak actually contends, with limited 

explanation, that public representatives are 

precluded from ever filing a complaint. 

complaint,17 and is inconsistent with 

the intent of the PAEA. Popkin requests 

that the Commission establish an 

organization within the Commission to 

provide an ongoing evaluation of the 

Postal Service’s activities. Popkin 

Comments at 1–2. 

NAA and Time Warner argue that 

nothing in section 505 or in the PAEA 

generally requires the Commission to 

maintain a single, fixed individual to 

advocate on behalf of the interests of the 

general public. NAA Reply Comments at 

4–6; and Time Warner Reply Comments 

at 9–26. GCA believes that given the 

relatively specific focus of this docket, 

it would be premature to argue in 

general terms the merits of a continuing 

public representation office within the 

Commission. GCA Reply Comments at 

1–2. 

Commission analysis. The 

Commission’s internal organizational 

structure is outside the scope of this 

proceeding. Indeed, under 5 U.S.C. 

553(b)(3)(A), Congress recognized that 

agencies should be given wide latitude 

in their development of agency 

management and administration. 

Section 553(b)(3)(A) provides that rules 

of ‘‘agency organization’’ are exempt 

from the requirements of notice and 

comment ruling. See American Hosp. 

Ass’n v. Bowen, 834 F.2d 1037, 1047 

(DC Cir. 1987) (The distinctive purpose 

of [5 U.S.C.] 553’s third exemption, for 

‘‘rules of agency organization, procedure 

or practice,’’ is to ensure ‘‘that agencies 

retain latitude in organizing their 

internal operations.’’) Courts have also 

recognized that internal agency 

organization, management, and the 

ordering of its priorities are better left to 

the discretion of the agency. Heckler v. 

Chaney, 470 U.S. 821, 831–32 (1985) 

(‘‘The agency is far better equipped than 

the courts to deal with the many 

variables involved in the proper 

ordering of its priorities.’’) 

The Commission agrees with NAA 

and Time Warner that nothing in the 

PAEA requires the Commission to 

designate a single individual to serve as 

the officer of the Commission to 

represent the interests of the general 

public. The issue of how best to allocate 

Commission resources to effectuate the 

intent of the PAEA is of continuing 

concern, and the Commission 

appreciates suggestions for how it can 

fulfill its responsibilities under the law 

more efficiently or effectively. The 

Commission regularly evaluates its 

operations, and therefore Valpak’s and 

Popkin’s views will be considered in 

that context. 

F. An Annual Compliance 

Determination’s Impact on Complaint 

Proceedings 

NAA is concerned that a Commission 

finding of compliance or 

noncompliance in an annual 

compliance determination could moot a 

pending complaint on the same issue. It 

argues that if an annual compliance 

determination renders a complaint 

moot, in practice, this will relegate 

complaints to a short period between 

the end of March and early June so 

parties can ensure that the Commission 

makes a final determination on the 

complaint prior to the next annual 

compliance determination. NAA 

Comments at 9–11. NAA urges the 

Commission to address this issue in a 

manner that fairly balances the interests 

of the complainant and the Postal 

Service and allows the Commission to 

manage its resources efficiently. It 

suggests (1) modifying the procedural 

schedule of the complaint to allow both 

proceedings to be resolved at the same 

time, or (2) reserving judgment on the 

subject matter of the pending complaint 

in the annual compliance 

determination. Id. 

The Postal Service believes that such 

modifications are unnecessary. It 

contends that the annual compliance 

determination reviews matters ‘‘on a 

macro level,’’ whereas a complaint 

would presumably seek relief for a 

specific problem. Accordingly, the 

Postal Service reaches the conclusion 

that it is unlikely that a finding of 

compliance as part of an annual 

compliance determination would 

completely eviscerate a complaint. 

Postal Service Reply Comments at 15. 

Commission analysis. Some 

complaints probably will be seeking 

particular relief for a specific problem 

on a more ‘‘micro level,’’ as the Postal 

Service suggests. This does not solve the 

problem identified by NAA for 

complaints dealing with issues on the 

same ‘‘macro level’’ as those typically 

reviewed in an annual compliance 

determination. The Commission agrees 

with NAA that it would not give full 

effect to the statutory scheme if 

complaints could be rendered moot by 

the issuance of an annual compliance 

determination. 

Congress contemplated this very issue 

and addressed it directly in the statute. 

Paragraph 3653(e) states: 

A timely written determination * * * [of 

compliance] shall, for purposes of any 

proceeding under section 3662, create a 

rebuttable presumption of compliance by the 

Postal Service [of those issues] during the 

year to which such determination relates. 

39 U.S.C. 3653(e). Had Congress chosen 

to have an annual compliance 

determination render a complaint moot, 

it would have made paragraph 3653(e) 

into an irrebuttable presumption. 

Instead, Congress chose to provide the 

Postal Service with a rebuttable 

presumption with respect to a 

complaint proceeding. 

Congress recognized that annual 

compliance determination proceedings 

are completed in a very short, fixed 

timeframe and are not subject to the 

same opportunities for contesting 

evidence as exist in an adversarial 

proceeding. These rules contemplate 

full complaint proceedings to provide a 

thorough, in-depth review of any 

particular subject matter in the context 

of a complaint. Commission findings in 

an annual compliance determination are 

relevant to a pending complaint 

proceeding, but are not necessarily 

dispositive of those issues. 

G. The Requirements of Section 3030.10 

Several comments raise issues with 

the requirements of section 3030.10, 

which sets forth the content 

requirements for the filing of a 

complaint. Their comments are 

discussed below. 

1. Overall Complaint Content 

Requirements 

Popkin and Valpak argue that the 

form and manner requirements of 

section 3030.10 are too burdensome. 

Valpak Comments at 5–6; and Popkin 

Comments at 2. More specifically, 

Valpak has issues with the following 

requirements: (1) Paragraph (a)(5), 

which requires a statement as to the 

nature of the evidentiary support that 

the complainant expects to obtain 

during discovery, and (2) paragraph 

(a)(6), which requires facts premised on 

information and belief to explain why 

those facts could not be ascertained by 

the complainant. 

The Postal Service supports these 

enhanced requirements because they 

provide specificity as to the legal and 

factual basis for the complaint and 

allow the Postal Service to respond 

more completely in the limited 

timeframe for answers. It also believes 

that such information will provide the 

Postal Service with a better 

understanding of the complaint, 

determine if the information expected to 

be obtained during discovery actually 

exists, identify the appropriate 

employees to provide such information, 

and encourage the informal resolution 

of complaints. Postal Service Reply 

Comments at 8–10. 

16740 Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 

Commission analysis. Paragraph 

3662(b) requires the Commission to 

make a determination as to whether the 

complaint raises a material issue of fact 

or law within 90 days after the filing of 

such complaint. This potentially 

requires the Commission to consider a 

significant amount of information in an 

abbreviated timeframe in order to make 

a finding whether a particular complaint 

raises a material issue of fact or law. In 

order for the Commission to fulfill these 

statutory responsibilities in a timely 

fashion, the Commission must have all 

the potentially relevant information 

when the parties file their initial 

pleadings. If the Commission were to 

require less information at the outset 

from the complainant, the result would 

be less responsive information from the 

Postal Service in its answer. This could 

cause the Commission to have to 

routinely solicit additional information 

from the parties in order to determine if 

the complaint raises material issues of 

fact or law. These required 

supplemental submissions would delay 

the Commission’s determination under 

paragraph 3662(b)(1) and possibly result 

in a dismissal of a complaint under 

paragraph 3662(b)(2). The Commission 

believes it is in the best interest of all 

stakeholders to have it consider 

complaints under paragraph 3662(b)(1), 

rather than having them dismissed 

under paragraph 3662(b)(2). The best 

way for the Commission to accomplish 

this goal is to have all the information 

necessary to make such determinations 

as early in the process as possible. This 

is what the requirements of paragraph 

3030.10(a) are designed to accomplish. 

Paragraphs (a)(5) and (a)(6) of section 

3030.10 are designed to elicit 

information to ensure that the 

complainant has completed an 

appropriate level of due diligence prior 

to filing the complaint. The Commission 

clarifies that paragraph (a)(5) merely 

requires the complainant to state to the 

extent possible the nature of the 

evidentiary support it expects to obtain 

during discovery. This allows the 

Commission to better understand the 

nature of the complainant’s case in 

order to make a determination under 

paragraph 3662(b)(1) as to whether a 

material issue of fact or law exists. The 

Commission recognizes that frequently 

such information will be in the control 

of the Postal Service. Nonetheless, the 

complainant must have some general 

understanding of how it intends to 

gather evidence in support of its case 

prior to filing. 

Similarly, paragraph (a)(6) merely 

requires the complainant to state why 

facts premised on information and belief 

are alleged on that basis as opposed to 

actually being ascertained by the 

complainant. This ensures that the 

complainant’s case is based on more 

then mere speculation. These provisions 

are not burdensome. 

2. Issues Pending in Other Forums 

Paragraph (a)(7) of section 3030.10 

requires the complainant to alert the 

Commission as to whether the same or 

similar issues raised in the complaint 

are pending in another proceeding. 

Popkin takes issue with this provision 

arguing that the Commission should not 

be a ‘‘court of last resort.’’ Popkin 

Comments at 2. Popkin’s concern that 

the Commission will become a ‘‘court of 

last resort’’ is unfounded. The 

Commission is not requiring parties to 

attempt to resolve their disputes in 

other adjudicatory forums prior to 

bringing a complaint to the 

Commission. Paragraph 3030.10(a)(7) 

will make the Commission aware of 

other forums that have addressed or 

may be dealing with the same dispute. 

This information will help the 

Commission avoid duplication and 

potential inconsistency between 

adjudicatory bodies. Further, having 

multiple governmental entities resolving 

the same dispute at the same time is a 

waste of governmental resources. 

3. Alternative Dispute Resolution 

Popkin asks for clarification as to the 

meaning of the term ‘‘alternative dispute 

resolution’’ (ADR) in paragraph 

3030.10(a)(9). Presumably, Popkin finds 

the provision confusing, unclear, or 

misplaced. Popkin Comments at 2. 

Commission analysis. This provision 

explores whether the issues being raised 

in the complaint may be resolved 

through settlement, negotiation, 

mediation, arbitration or other dispute 

resolution procedures. The Commission 

believes that in certain circumstances 

ADR imposes fewer costs than litigation, 

provides parties with more 

confidentiality when they believe it is 

appropriate, provides greater flexibility 

in remedies, and faster resolution. The 

parties may find these alternatives 

desirable, and the Commission wants to 

encourage these alternative procedures 

when appropriate. 

Nonetheless, the Commission agrees 

with Popkin that the wording of this 

provision could be unclear and may be 

more appropriately located as part of the 

Commission’s settlement rule, section 

3030.40. Accordingly, the Commission 

will move the alternative dispute 

resolution provision from paragraph 

3030.10(a)(9) to section 3030.40, where 

the Commission discusses the possible 

informal resolution procedures it may 

undertake in the context of a complaint 

proceeding. 

4. Pre-Complaint Written 

Correspondence 

The Postal Service suggests that 

Commission section 3030.10 require a 

complainant to provide copies of all 

correspondence or written 

communications between the 

complainant and the Postal Service. 

Postal Service Comments at 1–3. The 

Postal Service is concerned that without 

this information, it will have to spend 

a significant portion of time attempting 

to locate the appropriate personnel 

within the Postal Service that the 

complainant attempts to contact with 

respect to his or her issue. Popkin 

points out that since paragraph 

3030.10(a)(9) requires the complainant 

to meet or confer with the Postal Service 

prior to filing the complaint, it will be 

aware of the facts and circumstances 

surrounding the complaint prior to 

filing. Popkin Reply Comments at 1. 

Commission analysis. In the current 

complaint rules, there is no requirement 

that the complainant and Postal Service 

meet or confer prior to a complaint 

filing. The new rules include the 

requirement that the complainant put 

the Postal Service on notice that a 

complaint may be forthcoming. 

Dialogue at the meet or confer stage 

should provide the Postal Service with 

enough detail to identify Postal Service 

employees who have been dealing with 

the complainant. 

These rules also provide the Postal 

Service with a much greater level of 

detail as to the facts and circumstances 

surrounding the complaint then the 

current rules provide. This significant 

additional detail should ensure that the 

Postal Service does not have to use 

‘‘valuable time and postal headquarters 

resources * * * seeking local internal 

sources of information that either verify 

or refute allegations in a service 

complaint or inquiry.’’ Postal Service 

Comments at 2. 

The Commission has concerns that 

requiring the complainant to publicly 

produce all copies of correspondence or 

written communications with the Postal 

Service on the topic of the complaint 

may have a chilling effect on the efforts 

of the complainant to attempt to settle 

the matter. See, e.g., Federal Rule of 

Evidence 408. Additionally, 

complainants are likely to provide this 

information in support of the 

requirement in paragraph 3030.10(a)(9) 

that they explain why they believe 

settlement unlikely. 

Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 16741 

H. Answer Contents and Timing 

Several comments raise issues with 

the requirements of rules relating to the 

Postal Service’s filing of its answer and 

the timeframe allowed for filing such 

answer. These comments are discussed 

below. 

1. Postal Service Certification of Meet or 

Confer 

The Public Representative notes that 

paragraph 3030.14(a)(6) requires the 

Postal Service to certify, in its answer, 

that it attempted to meet or confer with 

the complainant in an attempt to resolve 

the matter ‘‘prior to the filing.’’ 

Proposed rule 3030.14(a)(6). The Public 

Representative believes that the 

language of the proposed rule is unclear 

as to whether the meet or confer attempt 

must be made by the Postal Service (1) 

prior to the complaint filing, or (2) prior 

to the filing of the answer. Public 

Representative Comments at 3–4. 

Valpak makes a similar point. Valpak 

Comments at 7. The Public 

Representative believes that the better 

approach is to require the Postal Service 

to certify an attempt to meet or confer 

after the complaint is filed since that is 

when the complaint is committed to 

writing and all the facts and 

circumstances are set out in detail. 

Commission analysis. The 

Commission appreciates the parties’ 

identification of a potential ambiguity in 

its proposed rules. The Commission 

believes that the Postal Service should 

attempt to meet or confer with the 

complainant in an attempt to resolve the 

issues raised in the complaint, but is not 

seeking to add additional settlement 

attempt requirements that may be 

fruitless. The Commission wants to 

ensure that a good faith attempt at 

settlement was undertaken by both 

parties. Thus, if the Postal Service does 

not believe that the complainant 

initiated a good faith settlement attempt 

prior to the filing of its complaint, the 

Postal Service should strive to 

undertake a good faith settlement 

attempt with the complainant prior to 

filing its answer. If the Postal Service 

believes that the complainant did, in 

good faith, attempt to settle the issues 

raised in the complaint, the Postal 

Service need not make another attempt. 

Additionally, the Postal Service only 

has a limited amount of time to respond 

to the complaint. Requiring additional 

meet or confer attempts may 

compromise the Postal Service’s ability 

to effectively respond to the complaint 

litigation. A simple certification that the 

complainant and the Postal Service 

undertook good faith settlement 

negotiations and those attempts did not 

result in settlement will suffice. Thus, to 

clarify this conclusion in the final rule, 

the Commission accepts Valpak’s 

suggestion and will add the language 

‘‘of its answer’’ after the words ‘‘prior to 

the filing’’ in paragraph 3030.14(a)(6). 

To further clarify, the Commission also 

alters the language of that rule from 

‘‘attempted to meet or confer’’ to ‘‘met 

or conferred.’’ 

Additionally, for the same reasons 

discussed in part III.G.3 of this order, 

the Commission alters paragraph 

3030.14(a)(6) in the same manner as it 

altered paragraph 3030.10(a)(9). 

2. Deemed Admissions 

Valpak notes that the Commission’s 

current complaint rules state that 

‘‘[e]ach fact alleged in a complaint not 

thus specifically answered shall be 

deemed to have been admitted.’’ Valpak 

suggests that the Commission carry this 

provision over to its new complaint 

rules. Valpak Comments at 6. 

Commission analysis. The 

Commission agrees with Valpak. This 

provision ensures that the Postal Service 

responds to every allegation of the 

complaint and will allow the 

Commission to have a better record for 

decision. Accordingly, the Commission 

will add Valpak’s requested provision to 

paragraph 3030.14(a)(3). 

3. Timeframe for Responsive Pleadings 

The Postal Service notes that section 

3030.12 provides the Postal Service 

with 20 days to file its answer. It 

contends that this time period is too 

short and that the Commission did not 

provide a rationale for choosing a 20- 

day deadline. It believes that it would 

be difficult for the Postal Service to 

meet the requirements of section 

3030.14 in this short timeframe. Postal 

Service Comments at 3–4. 

Commission analysis. In Order No. 

101, the Commission provided its 

rationale for the timeframes in proposed 

rule 3030.14. See Order No. 101 at 14. 

There, it noted that the timeframes in 

the proposed rule for answers parallel 

those provided to civil litigants under 

the Federal Rules of Civil Procedure. 

See Federal Rule of Civil Procedure 12. 

As a result of paragraph 3030.10(a)(9), 

the Postal Service will have notice that 

a complaint may be filed. Also, if the 

Postal Service files a motion to dismiss 

the complaint or similar motion, the 

rules provide the Postal Service with 

additional time to file its answer. While 

20 days may be shorter than the current 

timeframe, private parties in civil 

litigation routinely meet such a 

deadline. 

The Commission only has 90 days to 

make its determination as to whether a 

complaint raises a material issue of fact 

or law. This requirement supports a 

limited time for the Postal Service’s 

answer. In certain circumstances, the 

Commission may have to request 

supplemental information from the 

parties pursuant to section 3030.20 prior 

to making a decision under section 

3030.30. If the Commission provides the 

Postal Service with more time than 

proposed, the Commission may not be 

able to fulfill its duties within the 

statutorily mandated timeframe of 

paragraph 3662(b)(1). Section 3030.11 

provides the Postal Service with 

immediate service of the complaint via 

e-mail. This should allow the Postal 

Service to begin working on its answer 

and litigation strategy quickly. 

I. Service of Process 

Valpak and the Popkin comment on 

proposed rule 3030.11 which requires 

service of the complaint on the Postal 

Service via e-mail. Valpak suggests that 

hand delivery or U.S. Mail should also 

be sufficient service. Valpak Comments 

at 5. Popkin believes that posting the 

complaint on the Commission’s Web 

site should be considered adequate 

service. Popkin Comments at 2. 

Commission analysis. The 

Commission wants to ensure that the 

appropriate individuals at the Postal 

Service receives the complaint as 

contemporaneously as possible with the 

filing. Hand delivery may not be 

delivered to appropriate Postal Service 

personnel as rapidly as e-mail. It could 

be received by a receptionist or be left 

by the person who signed for the 

delivery in the mailroom. Similarly, 

U.S. Mail sent to Federal Government 

offices in the District of Columbia is 

subject to unpredictable, and 

occasionally extended delays a result of 

security screening procedures. With a 

20-day deadline for the Postal Service’s 

answer after the complaint is filed, the 

Commission wanted to ensure that the 

date the Postal Service receives service 

coincidences with the date the 

complaint is deemed filed. This also 

helps ensure the Commission can make 

its required findings within the 90-day 

statutory deadline. The provision 

requiring e-mail service of the 

complaint on the Postal Service requires 

minimal effort. It is not a burdensome 

requirement. 

Nonetheless, to ensure that parties 

that do not have access to e-mail are not 

barred from filing complaints, the 

Commission alters its proposed rule to 

allow waivers of e-mail service in 

accordance with its paper filing 

requirements under paragraph 

3001.9(a). 

16742 Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 

18See, e.g., U.S. v. Gomez, 431 F.3d 818, 824 (DC 

Cir. 2005) (reasonably likelihood standard applied 

in sentencing of criminals); United States v. 

Holmquist, 36 F.3d 154, 168 (1st Cir. 1994) (‘‘the 

standard for authentication, and hence for 

admissibility, is one of reasonable likelihood’’); SEC 

v. Int’l Loan Network, Inc., 770 F.Supp. 678, 688 

(D.D.C. 1991) (reasonable likelihood standard 

applied to preliminary injunction application by 

SEC); SEC v. Yu, 231 F. Supp. 2d 16, 19 (D.D.C. 

2002) (quoting Int’l Loan Network and finding, 

‘‘[u]nder the law of this Circuit, the SEC is entitled 

to a preliminary injunction if ‘the evidence 

establishes a strong prima facie case of previous 

violations and a reasonable likelihood that the 

wrong will be repeated.’’’); see also Hinkley v. U.S., 

163 F.3d 647, 650 (DC Cir. 1999) (noting that the 

‘‘capable of repetition but evading review’’ standard 

means that if there is a showing that there is ‘‘a 

reasonable likelihood that [the complainant] will 

again suffer the deprivation * * * that gave rise to 

this suit, his case is capable of repetition.’’ (internal 

citations omitted)). 

19Of course, this test only affects the 

Commission’s discretionary ability to attempt to 

resolve the matter informally through its rate or 

service inquiry procedures. It has no substantive 

application to the complaint. See paragraph 

3030.13(b). 

J. Availability of Rate or Service 

Inquiries on the Commission’s Web Site 

Several commenters suggest that rate 

or service inquiries directed to the 

Commission be available on the 

Commission’s Web site. Popkin 

Comments at 3; and Public 

Representative Comments at 7. The 

Public Representative believes that if 

the general public has access to issues 

previously addressed by inquiries, 

together with the Postal Service’s 

response to such inquiries, there could 

be a greater understanding of the extent 

of the questions and problems 

experienced by other mailers as well as 

a knowledge of the Postal Service 

responses and the potential for 

resolution of problems. The Public 

Representative also notes that the 

number of inquiries may be significantly 

reduced if the public understands the 

Postal Service’s policies and the reasons 

for the policies through publicly 

available application of those policies to 

particular rate or service inquiries. 

Commission analysis. The 

Commission finds this proposal to have 

merit. It will enhance transparency and 

accountability in furtherance of the 

goals and policies of the PAEA. 

However, there are also countervailing 

privacy concerns that need to be 

accommodated. Prior to placing the rate 

and service inquiries on the 

Commission’s Web site, the Commission 

will have to ensure that its methods are 

in compliance with the Privacy Act, 5 

U.S.C. 552a, and other applicable 

privacy related statutes. This suggestion 

requires no textual change from the 

Commission’s proposed rules. 

K. Reasonable Likelihood Standard 

The Postal Service argues that 

proposed rule 3030.13(a)(3) contains a 

provision where the exception is ‘‘so 

vague that it swallows the rule.’’ Postal 

Service Comments at 4. Proposed rule 

3030.13(a)(3) provides that a complaint 

will not be sent to the Postal Service for 

an attempt at informal resolution if it 

‘‘[r]epresents a pattern, practice, or 

systematic issue that affects a significant 

number of mail users (or is reasonably 

likely to be the beginning of such a 

pattern).’’ Proposed rule 3030.13(a)(3) 

(emphasis added). The Postal Service 

believes that the ‘‘reasonably likely’’ 

standard ‘‘lacks criteria that give any 

confidence that it could be applied 

other than arbitrarily.’’ Postal Service 

Comments at 5. It suggests that the 

Commission should either provide 

criteria that much more clearly define 

the basis for determining that something 

is reasonably likely to be the beginning 

of a pattern or delete this provision. 

Commission analysis. The Federal 

courts routinely apply a ‘‘reasonable 

likelihood’’ standard in a wide variety 

of circumstances.18 Thus, the 

Commission interprets the Postal 

Service’s concern to be with the 

proposed rules’ use of the term 

‘‘beginning.’’ The Commission 

understands that it may not be clear 

when something is the beginning, as 

opposed to the middle or end, of a 

pattern. The Commission’s goal for this 

provision is to identify occurrences that 

may indicate that a pattern is 

developing. If the complaint, together 

with other information such as service 

performance data, indicates that a 

pattern is evolving, it may be 

appropriate for the Commission to treat 

that filing as a complaint. In those 

situations, the Commission would deal 

with issues promptly before a 

substantial number of mail users are 

harmed. 

Therefore, to clarify the intent of this 

provision, the Commission will change 

the wording of this standard to ‘‘or is 

reasonably likely to be evidence that 

such a pattern has begun.’’ This 

clarifying change should satisfy the 

Postal Service’s concern that the 

Commission not apply its standards of 

review in an arbitrary manner.19

L. Satisfaction Provision 

The Postal Service suggests that the 

Commission clarify how it intends to 

close complaint dockets under 

paragraph 3030.41(a) that have been 

resolved informally after the 

Commission has made a finding under 

paragraph 3030.30(a)(1) that a complaint 

raises a material issue of fact or law. 

Postal Service Comments at 7–8. The 

Postal Service notes that Order No. 

101’s section-by-section analysis states 

that after the Commission makes a 

finding that a complaint raises a 

material issue of fact or law, the 

Commission would like the opportunity 

to evaluate whether the issues raised by 

the complaint may continue to impact a 

significant segment of the mailing 

community prior to closing its docket. 

Id. The Postal Service argues that the 

proposed rule is unclear and provides 

no guidance on how the Commission 

will evaluate whether to allow the 

complaint to be dismissed at that stage. 

Commission analysis. In the 

circumstances where the Commission 

makes a finding under paragraph 

3030.30(a)(1) that the complaint raises a 

material issue of fact or law and begins 

proceedings on the complaint, the 

issues raised in the complaint typically 

impact a significant segment of the 

mailing community. While a settlement 

agreement between the Postal Service 

and complainant may also resolve the 

issues of the other members of the 

mailing community affected by the 

Postal Service’s action, it is possible for 

the informal resolution reached by the 

parties to only resolve the issue with 

respect to that individual complaining 

party. If this occurs, then the other 

affected individuals remain aggrieved 

parties. If the Postal Service and 

complainant’s settlement are limited in 

scope to only solving the issue with 

respect to the complainant, it may be in 

the interest of national postal policy to 

continue the complaint until a solution 

is reached that resolves the issues for all 

affected mailers. 

Accordingly, in light of the Postal 

Service’s suggestion and in line with the 

section-by-section analysis of this rule 

in Order No. 101, the Commission will 

clarify the standard by which it will 

determine whether to allow a complaint 

to be dismissed under section 3030.41. 

In line with its section-by-section 

analysis in Order No. 101 with respect 

to the proposed rule, it will insert a 

paragraph (c) into the final rule that 

states: ‘‘In determining whether to allow 

the complaint to be dismissed or 

amended under this rule, the 

Commission will take into consideration 

whether the issues raised by the 

complaint may continue to impact a 

significant segment of the mailing 

community.’’ 

M. Availability of Depositions 

NAA points out that the 

Commission’s rule authorizing 

depositions is not contained in sections 

3001.25 through 3001.27 and thus 

appears to be available under section 

3030.1 prior to section 3030.30’s finding 

Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 16743 

of a material issue of fact or law. NAA 

Comments at 4, n.3 (noting that the 

deposition rule is 39 U.S.C. 3001.33). 

The Postal Service seeks clarification on 

this issue due to the fact that it believes 

that witness depositions are similar to 

section 3001.27’s requests for 

production, which the proposed rule 

does not allow prior to the Commission 

making a section 3030.30 finding. Postal 

Service Reply Comments at 14. 

Commission analysis. While it is true 

that section 3001.33 is plainly not 

contained in sections 3001.25 through 

3001.27, that does not mean that 

depositions are routinely available prior 

to a finding under section 3030.30 that 

the complaint raises a material issue of 

fact or law. Commission rule 3001.33 

requires an application for authorization 

from the Commission for approval to 

take depositions. Furthermore, 

depositions are only allowed in very 

limited circumstances. It is difficult to 

envision any of those circumstances 

arising in the pre-rule 3030.30 finding 

stage. Nonetheless, to clarify the 

Commission’s intent that all discovery 

(including depositions) not be available 

prior to a finding under section 3030.30 

that the complaint raises a material 

issue of fact or law, the Commission 

will add that exception to paragraph 

3030.1(b). 

N. Other Suggestions 

Several commenters suggest minor 

uncontroversial wording changes to the 

proposed rules. These changes are 

outlined below. 

1. Heading of Section 3030.13 

The Public Representative suggests 

that the Commission change the heading 

of proposed section 3030.13 to clarify 

that the section applies rate or service 

inquiry procedures to complaints. 

Public Representative Comments at 3. 

The Commission agrees with the Public 

Representative that a change to the 

section’s heading provides clarification. 

Accordingly, the Commission changes 

the heading of proposed section 3030.13 

to ‘‘Conditions for applying rate or 

service inquiry procedures to 

complaints’’ in the final rule. 

2. Ambiguity in Section 3030.20 

GCA points out an ambiguity in 

proposed section 3030.20. Read 

literally, the proposed section could 

mean that the Commission will, in its 

discretion: (1) Require additional 

information, (2) appoint an investigator, 

or (3) take no action. To clarify that the 

Commission will apply either options 

number (1) or (2), but not (3), GCA 

provides suggested revised language. 

Commission analysis. GCA’s 

suggested changes better reflect 

Commission intent. Accordingly, the 

Commission accepts GCA’s suggested 

change with a minor revision. 

3. Ambiguity in Section 3030.20 

Valpak raises a concern that a literal 

reading of the statute requires the 

complaint to raise ‘‘material issues of 

fact or law.’’ Valpak Comments at 4 

(quoting 39 U.S.C. 3662) (emphasis in 

original). This could be read to imply 

that more than one issue must be raised 

prior to a Commission decision to begin 

proceedings on a complaint under 

paragraph 3030.30(a)(1). To avoid 

confusion, Valpak suggests changing 

this text to the singular form. The 

Commission agrees that only one 

material issue of fact or law must be 

raised to satisfy paragraph 3030.30(a)(1). 

Accordingly, it changes the final rule in 

the manner suggested by Valpak. 

IV. Section-by-Section Analysis 

In this part, the Commission reviews 

its final rules and describes what each 

rule seeks to accomplish. The purpose 

of this section-by-section analysis is to 

assist in determining the nature of each 

regulation and the rationale behind it. 

Each section is discussed below. 

Section 3030.1 Applicability. This 

section identifies the types of 

complaints that the Commission will 

consider as specified by 39 U.S.C. 3662. 

It also identifies the other Commission 

rules that will apply to complaint 

proceedings including the filing 

requirements and the Commission’s 

adjudication procedures. Paragraph (b) 

of this section makes the discovery and 

deposition sections inapplicable to 

complaint proceedings until the 

Commission initiates a proceeding on 

the complaint, i.e., until the 

Commission finds that the complaint 

raises a material issue of fact or law. 

Without such a provision, the discovery 

process might be abused. This 

paragraph ensures that only 

complainants raising material issues of 

fact or law will subject the Postal 

Service to the time and expense of the 

discovery process. 

Section 3030.2 Scope and nature of 

complaints. This section describes the 

nature of complaints that the 

Commission will consider. It expands 

upon the Commission’s current ‘‘Scope 

and nature of complaints’’ section, 39 

CFR 3001.82, to conform with the 

statutory changes to 39 U.S.C. 3662. 

Section 3030.10 Complaint contents. 

This section identifies the information 

that must be included in a complaint 

filing in order to satisfy the ‘‘form and 

manner’’ requirements. These 

requirements, which are based largely 

upon the Federal Energy Regulatory 

Commission’s formal complaint rule, 18 

CFR 385.206, are designed to provide 

specificity as to the legal and factual 

basis for the complaint. The intent is to 

apprise the Postal Service of the key 

elements of the complaint, and in 

concert with the Postal Service’s 

answer, to enable the Commission to 

determine whether the complaint raises 

a material issue of fact or law. 

The rule requires the complainant to 

certify that it has attempted to meet or 

confer with the Postal Service’s general 

counsel prior to filing the complaint. 

This criterion has two purposes. First, it 

is designed to allow the parties to 

explore whether alternative dispute 

resolution procedures might be effective 

in settling the issues raised by the 

complaint. Second, it requires a 

minimal, good faith attempt to resolve 

the complaint before involving the 

Commission. This follows the 

Commission’s long-standing policy 

favoring settlement. See 39 CFR 

3001.85(b). 

Section 3030.11 Service. This 

section requires the complainant to 

serve the complaint on the Postal 

Service at the same time the complaint 

is filed with the Commission. This 

section ensures that the Postal Service 

receives a copy of the complaint at the 

time it is sent to the Commission 

instead of having to wait to be notified 

of the pending complaint. Those parties 

who do not have e-mail access may 

obtain a waiver of this section. 

Section 3030.12 Pleadings filed in 

response to a complaint. This section 

governs the timeline for the Postal 

Service to respond to complaints. The 

Postal Service has 20 days to respond to 

a complaint. If the Postal Service files 

an appropriate motion, the timeline for 

the Postal Service to file its answer to 

a complaint is altered as it would be 

under the Federal Rules of Civil 

Procedure. 

Section 3030.13 Conditions for 

applying rate or service inquiry 

procedures to complaints. This section 

addresses the Commission’s ability to 

apply the rate or service inquiry 

procedures in order to attempt to 

resolve a complaint using the Postal 

Service’s internal procedures. 

This section does not allow the 

Commission to use the rate or service 

inquiry procedures in connection with 

complaints that raise unfair competition 

issues or concern rate or service matters 

with broad implications. As discussed 

in more detail in Order No. 101 [73 FR 

51888 (September 5, 2008)], these topics 

raise important policy issues that 

16744 Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 

Congress intended the Commission to 

consider in the first instance. 

Section 3030.14 answer contents. 

This section identifies the information 

to be included in an answer filed with 

the Commission. The requirements for 

the section are based largely upon the 

Federal Energy Regulatory 

Commission’s answer rule, 18 CFR 

385.213. The section is designed to 

elicit information necessary for the 

Commission to determine if the 

appropriate statutory and regulatory 

requirements have been met as well as 

to determine if the complaint raises a 

material issue of fact or law. The section 

requires the Postal Service to certify that 

it met or conferred with the 

complainant. This mirrors the provision 

in section 3030.10 designed to foster 

settlement. 

Section 3030.20 Sufficiency of 

information. This section is designed to 

give the Commission flexibility to 

obtain additional information if it 

determines it would be better able to 

make an informed determination on 

whether a complaint raises a material 

issue of fact or law under 39 U.S.C. 

3662(b)(1). This section allows 

additional information to be obtained by 

issuing a request or through the 

appointment of an investigator. 

Section 3030.21 Investigator. This 

section allows the Commission to 

appoint an investigator to explore some 

or all of the issues raised in a complaint. 

This rule also makes public the 

investigator’s findings and report to 

ensure that the process remains open 

and transparent. 

Section 3030.30 Beginning 

proceedings on complaints. This section 

explains the various procedural paths 

that a complaint will take when the 

Commission makes a finding under 39 

U.S.C. 3662(b)(1)(A)(i) or (ii). Upon 

making a finding under these sections, 

the Commission will either (1) issue a 

notice that includes setting forth the 

next steps in the proceeding, or (2) issue 

a final order dismissing the complaint. 

Section 3030.40 Policy on 

settlement. This section is a recodification of 39 CFR 3001.85(b) as a 

separate section. The Commission 

believes that its policy favoring 

settlement and alternative dispute 

resolution is important and should be in 

a separate section to emphasize its 

importance and so that it can be found 

easily in the Code of Federal 

Regulations. 

Section 3030.41 Satisfaction. This 

section sets forth the procedural 

requirements that a complainant must 

follow in the event that the complaint 

is resolved informally (in whole or in 

part). The section is designed to ensure 

that parties are free to explore 

settlement at any stage of litigating a 

complaint. However, once a 

determination that a complaint raises a 

material issue of fact or law has been 

made, the Commission believes it is 

prudent to evaluate whether the issues 

raised by the complaint may continue to 

impact a significant segment of the 

mailing community prior to closing its 

docket. 

Section 3030.50 Remedies. This 

section sets forth the potential statutory 

remedies for a complaint that the 

Commission finds to be justified. The 

Commission has broad remedial 

authority. The Commission may issue 

an order designed to ensure that the 

Postal Service achieves compliance with 

the applicable requirements found to be 

violated through the complaint 

proceeding. The Commission also may 

issue an order to remedy the effects of 

non-compliance with applicable 

requirements or postal policy. Finally, 

in cases of deliberate non-compliance 

by the Postal Service, the Commission 

may fine the Postal Service for each 

incidence of deliberate non-compliance. 

The section ensures that in those 

circumstances where the Commission is 

considering fining the Postal Service, 

participants will be afforded an 

opportunity to comment, including 

addressing any aggravating and 

mitigating factors related to the 

violation prior to the Commission 

making a determination that such 

extraordinary relief is warranted. 

Section 3031.10 Rate or service 

inquiry contents. This section identifies 

the information that should be included 

in rate or service inquiries. The 

requirements for this section are based 

in part on the Federal Communications 

Commission’s informal complaint rules, 

47 CFR 1.716. The section is designed 

to elicit the information necessary for 

the Commission to determine how to 

deal efficiently with the inquiry so that 

the party’s needs or concerns can be 

addressed appropriately. 

Section 3031.11 Rate or service 

inquiry procedures. This section sets 

forth the procedures that the 

Commission will take when it receives 

a rate or service inquiry. The 

Commission will send the inquiry to the 

Postal Service for appropriate action, 

and review reports submitted by the 

Postal Service in connection with rate or 

service inquiries filed under this part. 

Section 3031.12 Treatment as a 

complaint. The purpose of part 3031 is 

to assist individuals in resolving rate or 

service matters through informal means. 

This section also provides for the 

appointment of an investigator, an 

officer to represent the general public, 

or both, if the Commission believes that 

a systemic or recurring pattern may be 

at issue. Such action could ultimately 

result in the prosecution of a complaint 

proceeding under part 3030 if such 

pattern or practice affects a substantial 

number of persons or region of the 

nation in an important respect. 

V. Ordering Paragraphs 

It is Ordered: 

1. The Commission hereby deletes the 

complaint procedures located at part 

3001, subpart E of the Commission’s 

Rules of Practice and Procedure. 

2. The Commission hereby adopts the 

final rules applicable to Complaints 

(part 3030) and Rate or Service Inquiries 

(part 3031) that follow the Secretary’s 

signature into the Commission’s Rules 

of Practice and Procedure to appear in 

39 CFR parts 3030 and 3031, 

respectively. 

3. The Secretary shall arrange for 

publication of this order in the Federal 

Register. These actions will take effect 

30 days after publication in the Federal 

Register. 

4. The Motion for the Late Acceptance 

of the Initial Comments of the United 

States Postal Service filed on October 7, 

2008, is granted. 

List of Subjects in 39 CFR Parts 3001, 

3030 and 3031 

Administrative practice and 

procedure, Postal Service. 

Issued: March 24, 2009. 

By the Commission. 

Steven W. Williams, 

Secretary. 

■ For the reasons stated in the preamble, 

under the authority at 39 U.S.C. 3662, 

the Postal Regulatory Commission 

amends 39 CFR chapter III as follows: 

PART 3001—RULES OF PRACTICE 

AND PROCEDURE 

■ 1. The authority citation for part 3001 

continues to read as follows: 

Authority. 39 U.S.C 404(d); 503; 3622; 

3633, 3652; 3661. 

Subpart E—[Removed] 

■ 2. Remove and reserve subpart E of 

part 3001, consisting of §§ 3001.81 

through 3001.87. 

■ 3. Add part 3030 to read as follows: 

PART 3030—RULES FOR 

COMPLAINTS 

Subpart A—General 

Sec. 

3030.1 Applicability. 

3030.2 Scope and nature of complaints. 

Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 16745 

Subpart B—Form and Manner 

Requirements of Initial Pleadings 

3030.10 Complaint contents. 

3030.11 Service. 

3030.12 Pleadings filed in response to a 

complaint. 

3030.13 Conditions for applying rate or 

service inquiry procedures to 

complaints. 

3030.14 Answer contents. 

Subpart C—Supplemental Information 

3030.20 Sufficiency of information. 

3030.21 Investigator. 

Subpart D—Proceedings 

3030.30 Beginning proceedings on 

complaints. 

Subpart E—Settlement 

3030.40 Policy on settlement. 

3030.41 Satisfaction. 

Subpart F—Commission Determinations 

and Relief 

3030.50 Remedies. 

Authority: 39 U.S.C. 503; 3662. 

Subpart A—General 

§ 3030.1 Applicability. 

(a) The rules in this part govern the 

procedure for complaints filed under 39 

U.S.C. 3662 that meet the form and 

manner requirements of subpart B of 

this part. Part 3001, subpart A of this 

chapter, applies unless otherwise stated 

in this part or otherwise ordered by the 

Commission. 

(b) Sections 3001.25 through 27 of 

this chapter and § 3001.33 of this 

chapter do not apply to this part unless 

and until the Commission makes a 

finding under § 3030.30(a)(1) that the 

complaint raises material issues of fact 

or law. 

§ 3030.2 Scope and nature of complaints. 

Any interested person (including a 

duly appointed officer of the 

Commission representing the interests 

of the general public) may file a written 

complaint with the Commission if that 

person believes that the Postal Service 

is not operating in conformance with: 

(a) The provisions of 39 U.S.C. 

chapter 36, or 39 U.S.C. 101(d), 401(2), 

403(c), 404a, or 601; or 

(b) Any rule, order, or other regulatory 

requirement based on any of these 

statutory provisions. 

Subpart B—Form and Manner 

Requirements of Initial Pleadings 

§ 3030.10 Complaint contents. 

(a) A complaint must: 

(1) Set forth the facts and 

circumstances that give rise to the 

complaint; 

(2) Clearly identify and explain how 

the Postal Service action or inaction 

violates applicable statutory standards 

or regulatory requirements including 

citations to the relied upon section or 

sections of title 39, order, regulation, or 

other regulatory requirements; 

(3) Set forth the business, commercial, 

economic or other issues presented by 

the action or inaction as such relate to 

the complainant; 

(4) Include a description of persons or 

classes of persons known or believed to 

be similarly affected by the issues 

involved in the complaint, if applicable; 

(5) State the nature of the evidentiary 

support that the complainant has or 

expects to obtain during discovery to 

support the facts alleged in the 

complaint; 

(6) Include an explanation as to why 

such facts could not reasonably be 

ascertained by the complainant where 

claims are premised on information and 

belief; 

(7) State whether the issues presented 

are pending in or have been resolved by 

an existing Commission proceeding or a 

proceeding in any other forum in which 

the complainant is a party; and if so, 

provide an explanation why timely 

resolution cannot be achieved in that 

forum; 

(8) State the specific relief or remedy 

requested and the basis for that relief; 

and 

(9) Include a certification that states 

that prior to filing, the complainant 

attempted to meet or confer with the 

Postal Service’s general counsel to 

resolve or settle the complaint, why the 

complainant believes additional such 

steps would be inadequate, and the 

reasons for that belief; and 

(10) Include a certification that the 

complaint has been served on the 

United States Postal Service as required 

by § 3030.11. 

(b) The Commission may waive any of 

the requirements listed in paragraph (a) 

of this section to serve the interests of 

justice. 

§ 3030.11 Service. 

Any person filing a complaint must 

simultaneously serve a copy of the 

complaint on the Postal Service at the 

following address: 

sandra.t.broadus@usps.gov. A 

complaint is not deemed filed until it is 

served on the Postal Service. A waiver 

may be obtained pursuant to § 3001.9(a) 

of this chapter. 

§ 3030.12 Pleadings filed in response to a 

complaint. 

(a) Unless otherwise ordered by the 

Commission, the Postal Service shall 

file its answer to a complaint within 20 

days after the complaint is filed. 

(b) If appropriate, the Postal Service 

may file a dispositive motion or 

otherwise move to delay disposition of 

the complaint. If the Postal Service files 

such a motion, unless otherwise ordered 

by the Commission, the period of time 

for filing its answer is altered as follows: 

(1) If the Commission denies the 

motion or postpones disposition, the 

answer is due within 10 days of the 

Commission’s action; or 

(2) If the Commission invokes the rate 

or service inquiry special procedures 

under § 3030.13 to the complaint, the 

answer is due contemporaneously with 

the Postal Service’s report under 

§ 3031.11 of this chapter if the 

complaint has not been resolved by that 

date. 

(c) If the Postal Service answer is 

delayed by the filing of a motion under 

paragraph (b) of this section, it may not 

obtain a further delay by filing another 

motion under paragraph (b) of this 

section raising an issue or objection that 

was available to the Postal Service but 

omitted from its earlier motion. 

§ 3030.13 Conditions for applying rate or 

service inquiry procedures to complaints. 

(a) This section applies to complaints 

that concern rate or service matters that 

are isolated incidents affecting few mail 

users provided that the complaint does 

not either: 

(1) Raise unfair competition issues; 

(2) Raise issues affecting a significant 

number of mail users; 

(3) Represent a pattern, practice, or 

systemic issue that affects a significant 

number of mail users (or is reasonably 

likely to be evidence that such a pattern 

has begun); or 

(4) Impact a substantial region of the 

nation. 

(b) The Commission may in its 

discretion, sua sponte, attempt to 

resolve a complaint through the rate or 

service inquiry procedures of § 3031.11 

of this chapter if the Commission finds 

that there is a reasonable likelihood that 

such procedures may result in 

resolution of the complaint. The 

Commission will issue an order to apply 

the procedures of § 3031.11 of this 

chapter prior to the due date for the 

Postal Service answer set forth in 

§ 3030.12. 

(c) If the Commission determines that 

application of paragraph (a) of this 

section is appropriate and the Postal 

Service is unable to resolve the 

complaint within 45 days, or such other 

period of time as ordered by the 

Commission, the Postal Service shall 

file its answer in accordance with 

§ 3030.12(b)(2). 

§ 3030.14 Answer contents. 

(a) An answer must: 

(1) Contain a clear and concise 

statement of any disputed factual 

16746 Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 

allegations upon which the answer 

relies; 

(2) Contain a clear and concise 

statement of any legal interpretation 

upon which the answer relies; 

(3) Admit or deny, specifically and 

with explanatory detail, each material 

factual allegation of the complaint. 

Denials based on information and belief 

must include an explanation as to why 

such facts could not reasonably be 

ascertained by the Postal Service prior 

to filing the answer. Each fact alleged in 

a complaint not thus specifically 

answered shall be deemed to have been 

admitted; 

(4) Set forth every defense relied 

upon. The answer shall advise the 

complainant and the Commission fully 

and completely of the nature of any 

defense, including factual allegations 

and law upon which the Postal Service 

relies. Affirmative defenses shall be 

specifically captioned as such and 

presented separately from any denials; 

(5) State the nature of the evidentiary 

support that the Postal Service has or 

expects to obtain to support its factual 

allegations and defenses; and 

(6) Include a certification that states 

that prior to the filing of its answer, the 

Postal Service met or conferred with the 

complainant to resolve or settle the 

complaint, whether the Postal Service 

believes additional such steps would be 

inappropriate and the reasons for that 

belief. 

(b) The Commission may waive any of 

the requirements listed in paragraph (a) 

of this section to serve the interests of 

justice. 

Subpart C—Supplemental Information 

§ 3030.20 Sufficiency of information. 

If, after review of the information 

submitted pursuant to this part, the 

Commission determines that additional 

information is necessary to enable it to 

evaluate whether the complaint raises 

material issues of fact or law, the 

Commission shall, in its discretion, 

either require the complainant and/or 

the Postal Service to provide additional 

information as deemed necessary, issue 

an appropriate order to appoint an 

investigator in accordance with 

§ 3030.21, or do both. 

§ 3030.21 Investigator. 

The Commission may appoint an 

investigator to examine issues raised by 

the complaint and responses thereto. 

The investigator will use appropriate 

due diligence under the circumstances 

and provide a public, written report to 

the Commission. 

Subpart D—Proceedings 

§ 3030.30 Beginning proceedings on 

complaints. 

(a) Within 90 days after receiving a 

properly filed complaint under this part, 

the Commission will issue: 

(1) A notice and order in accordance 

with § 3001.17 of this chapter that finds 

the complaint raises one or more 

material issues of fact or law and begin 

proceedings on the complaint; or 

(2) An order dismissing the 

complaint. 

(b) Orders issued pursuant to 

paragraph (a) of this section shall 

include the Commission’s written 

statement setting forth the bases of its 

determination. 

(c) Contemporaneously with, or 

shortly after issuing a notice and order 

under paragraph (a)(1) of this section, 

the Commission will appoint a public 

representative to represent the interests 

of the general public in the complaint 

proceeding. 

Subpart E—Settlement 

§ 3030.40 Policy on settlement. 

It shall be the general policy and 

practice of the Commission to encourage 

alternative dispute resolution and 

settlement of complaints by informal 

procedures, such as correspondence, 

conferences between the parties, and the 

conduct of proceedings off the record 

with the consent of the parties. 

§ 3030.41 Satisfaction. 

(a) If a complaint is resolved 

informally, in whole or in part, 

subsequent to Commission action under 

§ 3030.30(a)(1), the complainant must 

promptly file: 

(1) A statement explaining the 

resolution; and 

(2) A motion to dismiss or amend the 

complaint based on the resolution. 

(b) The Commission may order the 

submission of additional information 

before acting on any motion filed under 

paragraph (a)(2) of this section. 

(c) In determining whether to allow 

the complaint to be dismissed or 

amended under this section, the 

Commission will take into consideration 

whether the issues raised by the 

complaint may continue to impact a 

significant segment of the mailing 

community. 

Subpart F—Commission 

Determinations and Relief 

§ 3030.50 Remedies. 

(a) If the Commission finds that a 

complaint is justified, it will order that 

the Postal Service take such action as 

the Commission determines appropriate 

to: 

(1) Achieve compliance with the 

applicable requirements; and 

(2) Remedy the effects of any noncompliance. 

(b) If the Commission finds deliberate 

non-compliance on the part of the Postal 

Service, the Commission may order, 

based on the nature, circumstances, 

extent, and seriousness of the noncompliance, a fine for each incidence of 

non-compliance. 

(c) In any case where the Commission 

is considering the extraordinary relief 

described in paragraph (b) of this 

section, the Commission will provide 

notice to the participants that such relief 

is being considered. It will allow the 

participants a reasonable opportunity to 

comment and present aggravating and 

mitigating factors for its consideration. 

4. Add part 3031 to read as follows: 

PART 3031—RULES FOR RATE OR 

SERVICE INQUIRIES 

Subpart A—Rate or Service Inquiry Forms 

and Procedures 

Sec. 

3031.10 Rate or service inquiry contents. 

3031.11 Rate or service inquiry procedures. 

3031.12 Treatment as a complaint. 

Subpart B—[Reserved] 

Authority: 39 U.S.C. 503, 3662. 

Subpart A—Rate or Service Inquiry 

Forms and Procedures 

§ 3031.10 Rate or service inquiry contents. 

(a) A rate or service inquiry shall be 

in writing and should contain: 

(1) The name, address, and telephone 

number of the inquiring party; 

(2) Details regarding the Postal 

Service’s action or inaction; 

(3) A statement of facts supporting the 

inquiring party’s allegations; and 

(4) The specific relief being sought, if 

any. 

(b) The Commission may waive any of 

the requirements listed in paragraph (a) 

of this section to serve the interests of 

justice. 

§ 3031.11 Rate or service inquiry 

procedures. 

(a) The Commission will forward rate 

or service inquiries to the Postal Service 

for investigation. The Postal Service 

will, within 45 days of receipt of such 

inquiry, advise the Commission in 

writing, with a copy to the inquiring 

party, of its resolution of the inquiry or 

its refusal or inability to do so. 

(b) The Commission will monitor all 

rate or service inquiries to determine if 

Commission action under § 3031.12 is 

appropriate. 

Federal Register / Vol. 74, No. 68 / Friday, April 10, 2009 / Rules and Regulations 16747 

(c) Where there are clear indications 

from the Postal Service’s report or from 

other communications between the 

parties that the inquiry has been 

resolved, the Commission may, in its 

discretion, consider such proceeding to 

be resolved, without response to the 

inquiring party. 

§ 3031.12 Treatment as a complaint. 

If the Commission receives a volume 

of rate or service inquiries on the same 

or similar issue such that there may be 

cause to warrant treatment as a 

complaint, it may appoint an 

investigator to review the matter under 

§ 3030.21 of this chapter or appoint a 

public representative representing the 

interests of the general public to pursue 

the matter. 

Subpart B—[Reserved] 

[FR Doc. E9–8153 Filed 4–9–09; 8:45 am] 

BILLING CODE 7710–FW–P