18630 Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 / Rules and Regulations 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 1– 

888–REG–FAIR (1–888–734–3247). The 

Coast Guard will not retaliate against 

small entities that question or complain 

about this rule or any policy or action 

of the Coast Guard. 

Collection of Information 

This rule calls for no new collection 

of information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under that Order and have 

determined that it does not have 

implications for federalism. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 or more in any one year. 

Though this rule will not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. 

Taking of Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

would not create an environmental risk 

to health or risk to safety that might 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 0023.1 and 

Commandant Instruction M16475.lD, 

which guides the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that this action is one 

of a category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(32)(e), of the Instruction. 

Under figure 2–1, paragraph (32)(e), of 

the Instruction, an environmental 

analysis checklist and a categorical 

exclusion determination are not 

required for this rule. 

List of Subjects in 33 CFR Part 117 

Bridges. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

■ 1. The authority citation for part 117 

continues to read as follows: 

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

■ 2. From 6 a.m. on April 15, 2009, to 

6 p.m. on November 15, 2009, in 

§ 117.635, temporarily add paragraphs 

(a), (b), and (c). 

§ 117.635 Keweenaw Waterway. 

* * * * * 

(a) From April 15 through November 

15, from 6 a.m. to 8 a.m., 11:30 a.m. to 

1 p.m. and 3:30 p.m. to 5:30 p.m., seven 

days a week, the bridge shall not be 

required to open for recreational craft. 

(b) At all other times, the draw of the 

U.S. 41 Bridge need not be opened for 

the passing of recreational craft except 

for once an hour, on the hour. 

(c) Public vessels of the United States, 

state or local vessels used for public 

safety, commercial vessels, and vessels 

in distress shall be passed through the 

draw of the bridge at all times. 

Dated: March 19, 2009. 

D.R. Callahan, 

Captain, U.S. Coast Guard, Commander, 

Ninth Coast Guard District, Acting. 

[FR Doc. E9–9448 Filed 4–23–09; 8:45 am] 

BILLING CODE 4910–15–P 

POSTAL SERVICE 

39 CFR Part 958 

Rules of Practice in Proceedings 

Relative to Mailing Hazardous 

Materials 

AGENCY: Postal Service. 

ACTION: Final rule. 

SUMMARY: The Postal Accountability and 

Enhancement Act requires the Postal 

Service to prescribe regulations for the 

safe transportation of hazardous 

materials in the mail, and to prescribe 

regulations for the conduct of 


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proceedings to determine the 

implementation of civil penalties, cleanup costs and damages for violations of 

these hazardous materials regulations. 

Accordingly, the Postal Service is 

adopting new rules of practice for its 

Office of the Judicial Officer. 

DATES: Effective Date: April 24, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Administrative Judge Gary E. Shapiro, 

(703) 812–1910. 

SUPPLEMENTARY INFORMATION: Title X of 

the Postal Accountability and 

Enhancement Act, Public Law 109–435, 

enacted 39 U.S.C. 3018, concerning the 

mailing of hazardous material. Section 

3018(a) requires the Postal Service ‘‘to 

prescribe regulations for the safe 

transportation of hazardous material in 

the mail.’’ Section 3018(c) requires the 

Postal Service to implement procedures 

for the imposition of civil penalties, 

clean-up costs and damages for 

violations of these hazardous materials 

regulations. Section 3018(d) provides 

that the Postal Service may determine 

that a person has violated these 

regulations only after notice and an 

opportunity for a hearing in accordance 

with section 3001(m) of title 39, United 

States Code. 

To further the implementation of this 

statute, on January 29, 2009, the Postal 

Service published for comment its 

proposed Rules of Practice in 

Proceedings Relative to Mailing 

Hazardous Materials (74 FR 5137). The 

time for comment on the proposed rules 

expired on March 2, 2009, and no 

comments have been received. 

Accordingly, the Postal Service has 

determined that it is appropriate to 

adopt the rules of practice as proposed, 

without further revision. The Postal 

Service has also determined that it is 

appropriate to make these rules of 

practice effective upon publication, in 

the interest of public safety and orderly 

administration of the statute. 

List of Subjects in 39 CFR Part 958 

Administrative practice and 

procedure, Penalties, Postal Service. 

■ For the reasons stated in the preamble, 

the Postal Service adds 39 CFR part 958 

to read as follows: 

PART 958—RULES OF PRACTICE IN 

PROCEEDINGS RELATIVE TO CIVIL 

PENALTIES, CLEAN-UP COSTS AND 

DAMAGES FOR VIOLATION OF 

HAZARDOUS MATERIAL 

REGULATIONS 

Sec. 

958.1 Purpose. 

958.2 Definitions. 

958.3 Petition for hearing. 

958.4 Referral of complaint. 

958.5 Scope of hearing; evidentiary 

standard. 

958.6 Notice of docketing and hearing. 

958.7 Hearing location. 

958.8 Rights of parties. 

958.9 Responsibilities and authority of 

presiding officer. 

958.10 Prehearing conferences. 

958.11 Respondent access to information. 

958.12 Depositions; interrogatories; 

admission of facts; production and 

inspection of documents. 

958.13 Sanctions. 

958.14 Ex parte communications. 

958.15 Post-hearing briefs. 

958.16 Transcript of proceedings. 

958.17 Initial decision. 

958.18 Appeal of initial decision to Judicial 

Officer. 

958.19 Form and filing of documents. 

958.20 Service of notice of docketing and 

hearing, other documents. 

958.21 Computation of time. 

958.22 Continuances and extensions. 

958.23 Settlement. 

Authority: 39 U.S.C. 204; 39 U.S.C. 401; 

39 U.S.C. 3001; 39 U.S.C. 3018. 

§ 958.1 Purpose. 

This part establishes the procedures 

governing the hearing and appeal rights 

of any person alleged to be liable for 

civil penalties, clean-up costs and/or 

damages for mailing hazardous 

materials and/or related violations 

under 39 U.S.C. 3018. 

§ 958.2 Definitions. 

As used in this part: 

(a) Complaint refers to the 

determination by the Determining 

Official that an individual has violated 

the prohibition against mailing 

hazardous materials and/or related 

violations under 39 U.S.C. 3018. 

(b) Initial Decision refers to the 

written decision which the Presiding 

Officer renders. 

(c) Determining Official refers to the 

Chief Postal Inspector or designee. 

(d) Judicial Officer refers to the 

Judicial Officer or Acting Judicial 

Officer of the United States Postal 

Service or designee within the Judicial 

Officer Department. 

(e) Party refers to the Postal Service or 

the respondent. 

(f) Person refers to any individual, 

partnership, corporation, association, or 

private organization. 

(g) Presiding Officer refers to an 

Administrative Law Judge designated by 

the Judicial Officer to conduct a hearing. 

(h) Recorder refers to the Recorder of 

the Judicial Office of the United States 

Postal Service, 2101 Wilson Boulevard, 

Suite 600, Arlington, Virginia 22201– 

3078. 

(i) Representative refers to an attorney 

or other advocate. 

(j) Respondent refers to any person 

determined by the Determining Official 

to be liable for civil penalties, clean-up 

costs and/or damages for mailing 

hazardous materials and/or related 

violations under 39 U.S.C. 3018. 

§ 958.3 Petition for hearing. 

Within 30 days of being served the 

Postal Service’s Complaint alleging 

liability under 39 U.S.C. 3018, the 

respondent may request a hearing by 

filing a written Hearing Petition with 

the Recorder. The respondent’s Petition 

must include the following: 

(a) The words ‘‘Petition for Hearing 

Related to Prohibitions Regarding the 

Mailing of Hazardous Material’’ or other 

words reasonably identifying it as such; 

(b) The name of the respondent as 

well as his or her work and home 

addresses, and work and home 

telephone numbers; and other address 

and telephone number where the 

respondent may be contacted about the 

hearing proceedings; 

(c) The date on which the respondent 

received the Complaint issued by the 

Determining Official; 

(d) A statement indicating whether 

the respondent requests an oral hearing 

or a decision solely on the written 

record; 

(e) If the respondent requests an oral 

hearing, a statement proposing a city for 

the hearing site, with justification for 

holding the hearing in that city, as well 

as recommended dates for the hearing; 

and 

(f) A statement admitting or denying 

each of the allegations of liability made 

in the Complaint, and stating any 

defense on which the respondent 

intends to rely. 

§ 958.4 Referral of complaint. 

(a) If the respondent fails to request a 

hearing within the specified period, the 

Determining Official shall transmit the 

Complaint to the Judicial Officer for 

referral to a Presiding Officer, who shall 

issue an Initial Decision based upon the 

information contained in the Complaint. 

(b) If the respondent files a Hearing 

Petition, the Determining Official, upon 

receiving a copy of the Petition, shall 

promptly transmit to the Presiding 

Officer a copy of the Postal Service’s 

Complaint. 

§ 958.5 Scope of hearing; evidentiary 

standard. 

(a) A hearing under this part shall be 

conducted by the Presiding Officer on 

the record: 

(1) To determine whether the 

respondent is liable under 39 U.S.C. 

3018, and 


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(2) If so, to determine the amount of 

any civil penalties, clean-up costs and/ 

or damages to be imposed. 

(b) The Postal Service must prove its 

case against a respondent by a 

preponderance of the evidence. 

(c) The parties may offer for insertion 

onto the record such relevant evidence 

as they deem appropriate and as would 

be admissible under the generally 

accepted rules of evidence applied in 

the courts of the United States in 

nonjury trials, subject, however, to the 

sound discretion of the Presiding Officer 

in supervising the extent and manner of 

presentation of such evidence. In 

general, admissibility will hinge on 

relevancy and materiality. However, 

relevant evidence may be excluded if its 

probative value is substantially 

outweighed by the danger of unfair 

prejudice, or by considerations of undue 

delay, waste of time, or needless 

presentation of cumulative evidence. 

§ 958.6 Notice of docketing and hearing. 

(a) Within a reasonable time after 

receiving the respondent’s Hearing 

Petition and the Complaint, the 

Presiding Officer shall serve upon the 

respondent and the Determining 

Official, a Notice of Docketing and 

Hearing. 

(b) The Notice of Docketing and 

Hearing required by paragraph (a) of this 

section may include: 

(1) The tentative site, date, and time 

of the oral hearing, if one is requested; 

(2) The legal authority and 

jurisdiction under which the hearing is 

to be held; 

(3) The nature of the hearing; 

(4) The matters of fact and law to be 

decided; 

(5) A description of the procedures 

governing the conduct of the hearing; 

and 

(6) Such other information as the 

Presiding Officer deems appropriate. 

§ 958.7 Hearing location. 

An oral hearing under this part shall 

be held: 

(a) In the judicial district of the 

United States in which the respondent 

resides or transacts business; 

(b) In the judicial district of the 

United States in which the incident or 

incidents occurred upon which the 

determination of liability under 39 

U.S.C. 3018 was made by the 

Determining Official; or 

(c) In such other place as may be 

determined by the Presiding Officer. 

§ 958.8 Rights of parties. 

Subject to the sound discretion of the 

Presiding Officer, acting under § 958.9, 

parties to a hearing under this part shall 

have the right: 

(a) To be accompanied, represented, 

and advised, by an attorney or 

representative of his or her own 

choosing; 

(b) To participate in any conferences 

held by the Presiding Officer; 

(c) To agree to stipulations of fact or 

law, which shall be made part of the 

record; 

(d) To make opening and closing 

statements at the oral hearing; 

(e) To present oral and documentary 

evidence relevant to the issues; 

(f) To submit rebuttal evidence; 

(g) To conduct such crossexamination as may be required for a 

full and true disclosure of the facts; and 

(h) To submit written briefs, proposed 

findings of fact, and proposed 

conclusions of law. 

§ 958.9 Responsibilities and authority of 

presiding officer. 

(a) The Presiding Officer shall 

conduct a fair and impartial hearing, 

avoid unnecessary delay, maintain 

order, and assure that a record of the 

proceeding is made. 

(b) The Presiding Officer’s authority 

includes, but is not limited to, the 

following: 

(1) Establishing, upon adequate notice 

to all parties, the date and time of the 

oral hearing, if any, as well as, in 

accordance with § 958.7, selecting the 

hearing site; 

(2) Holding conferences, by telephone 

or in person, to identify or simplify the 

issues, or to consider other matters that 

may aid in the expeditious resolution of 

the proceeding; 

(3) Continuing or recessing the 

hearing in whole or in part for a 

reasonable period of time; 

(4) Administering oaths and 

affirmations to witnesses; 

(5) Ruling on all offers, motions, 

requests by the parties, and other 

procedural matters; 

(6) Issuing any notices, orders, or 

memoranda to the parties concerning 

the proceedings; 

(7) Regulating the scope and timing of 

discovery; 

(8) Regulating the course of the 

hearing and the conduct of the parties 

and their representatives; 

(9) Examining witnesses; 

(10) Receiving, ruling on, excluding, 

or limiting evidence in order to assure 

that relevant, reliable and probative 

evidence is elicited on the issues in 

dispute, but irrelevant, immaterial or 

repetitious evidence is excluded; 

(11) Deciding cases, upon motion of a 

party, in whole or in part by summary 

judgment where there is no disputed 

issue of material fact; 

(12) Establishing the record in the 

case; and 

(13) Issuing a written Initial Decision 

containing findings of fact, conclusions 

of law, and determinations with respect 

to whether civil penalties, clean-up 

costs and/or damages for mailing 

hazardous materials and/or related 

violations under 39 U.S.C. 3018 should 

be imposed, and if so, the amounts 

thereof, after taking into account the 

penalty considerations contained in 39 

U.S.C. 3018(e). 

§ 958.10 Prehearing conferences. 

(a) At a reasonable time after issuing 

the Notice of Docketing and Hearing, 

and with adequate notice to the parties, 

the Presiding Officer may conduct, in 

person or by telephone, one or more 

prehearing conferences to discuss the 

following: 

(1) Simplification of the issues; 

(2) The necessity or desirability of 

amendments to the pleadings, including 

the need for a more definite statement; 

(3) Stipulations or admissions of fact 

or as to the contents and authenticity of 

documents; 

(4) Limitation of the number of 

witnesses; 

(5) Exchange of witness lists, copies of 

prior statements of witnesses, and 

copies of hearing exhibits; 

(6) Scheduling dates for the exchange 

of witness lists and of proposed 

exhibits; 

(7) Discovery; 

(8) Possible changes in the scheduled 

oral hearing date, time or site, if 

requested; and 

(9) Any other matters related to the 

proceeding. 

(b) Within a reasonable time after the 

completion of a prehearing conference, 

the Presiding Officer shall issue an 

order detailing all matters agreed upon 

by the parties, or ordered by the 

Presiding Officer, at such conference. 

§ 958.11 Respondent’s access to 

information. 

Except as provided in this section, 

after receiving the Notice of Docketing 

and Hearing the respondent may review 

and obtain a copy of all relevant and 

material documents, transcripts, 

records, and other materials which 

relate to the determination of liability by 

the Determining Official under 39 

U.S.C. 3018, and all exculpatory 

information in the possession of the 

Determining Official relating to liability 

for civil penalties, clean-up costs and/or 

damages for mailing hazardous 

materials and/or related violations 

under 39 U.S.C. 3018. The respondent is 

not entitled to review or obtain a copy 

of any document, transcript, record, or 

other material which is privileged under 

Federal law. The Presiding Officer is 


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authorized to issue orders placing 

limitations on the scope, method, time 

and place for accessing this information, 

and provisions for protecting the 

secrecy of confidential information or 

documents. 

§ 958.12 Depositions; interrogatories; 

admission of facts; production and 

inspection of documents. 

(a) General policy and protective 

orders. The parties are encouraged to 

engage in voluntary discovery 

procedures. In connection with any 

discovery procedure permitted under 

this part, the Presiding Officer may 

issue any order which justice requires to 

protect a party or person from 

annoyance, embarrassment, oppression, 

or undue burden or expense. Such 

orders may include limitations on the 

scope, method, time and place for 

discovery, and provisions for protecting 

the secrecy of confidential information 

or documents. Each party shall bear its 

own expenses relating to discovery. 

(b) Depositions. After the issuance of 

a Notice of Docketing and Hearing, the 

parties may mutually agree to, or the 

Presiding Officer may, upon application 

of either party and for good cause 

shown, order the taking of testimony of 

any person by deposition upon oral 

examination or written interrogatories 

before any officer authorized to 

administer oaths at the place of 

examination, for use as evidence or for 

purposes of discovery. The application 

for an order of the Presiding Officer 

under this paragraph shall specify 

whether the purpose of the deposition is 

discovery or for use as evidence. 

(1) The time, place, and manner of 

taking depositions shall be as mutually 

agreed by the parties, or failing such 

agreement, governed by order of the 

Presiding Officer. 

(2) No testimony taken by depositions 

shall be considered as part of the record 

in the hearing unless and until such 

testimony is offered and received into 

evidence by order of the Presiding 

Officer. Deposition testimony will not 

ordinarily be received in evidence if an 

oral hearing is requested by either party, 

and the deponent is available to testify 

personally at the hearing. In such 

instances, however, deposition 

testimony may be used to contradict or 

impeach the testimony of the witness 

given at the hearing. In cases submitted 

for a decision on a written record, the 

Presiding Officer may, in his or her 

discretion, receive deposition testimony 

as evidence in supplementation of that 

record. 

(c) Interrogatories to parties. After the 

issuance of a Notice of Docketing and 

Hearing, a party may serve on the other 

party written interrogatories. Within 30 

days after service, the party served shall 

answer each interrogatory separately in 

writing, signed under oath, or file 

objections thereto. Upon timely 

objection by the party, the Presiding 

Officer will determine the extent to 

which the interrogatories will be 

permitted. 

(d) Admission of facts. After the 

issuance of a Notice of Docketing and 

Hearing, a party may serve upon the 

other party a request for the admission 

of specified facts. Within 30 days after 

service, the party served shall answer 

each requested fact or file objections 

thereto. Upon timely objection by the 

party, the Presiding Officer will 

determine the extent to which the 

request for admission will be permitted. 

The factual propositions set out in the 

request shall be deemed admitted upon 

the failure of a party to respond to the 

request for admission. 

(e) Production and inspection of 

documents. Upon motion of a party 

showing good cause therefor, and upon 

notice, the Presiding Officer may order 

the other party to produce and permit 

the inspection and copying or 

photographing of any designated 

documents or objects, not privileged, 

specifically identified, and their 

relevance and materiality to the cause or 

causes in issue explained, which are 

reasonably calculated to lead to the 

discovery or admissible evidence. If the 

parties cannot themselves agree thereon, 

the Presiding Officer shall specify just 

terms and conditions in making the 

inspection and taking the copies and 

photographs. 

(f) Limitations. A discovery procedure 

may not be used to reach documents, 

transcripts, records, or other material 

which a person is not entitled to review 

pursuant to § 958.11. 

§ 958.13 Sanctions. 

(a) In general. The Presiding Officer 

may sanction a person, including any 

party, attorney or representative, for: 

(1) Failing to comply with a lawful 

order or prescribed procedure; 

(2) Failing to prosecute or defend an 

action; or 

(3) Engaging in other misconduct that 

interferes with the speedy, orderly, or 

fair conduct of the hearing. 

(b) Reasonableness. Any such 

sanction, including but not limited to 

those listed in paragraphs (c), (d), and 

(e) of this section, shall reasonably 

relate to the severity and nature of the 

failure or misconduct. 

(c) Failure to comply with an order. 

When a party fails to comply with an 

order, including an order for taking a 

deposition, the production of evidence 

within the party’s control, or a request 

for admission, the Presiding Officer 

may: 

(1) Draw an inference in favor of the 

requesting party with regard to the 

information sought; 

(2) Prohibit such party from 

introducing evidence concerning, or 

otherwise relying upon, testimony 

relating to the information sought; 

(3) Permit the requesting party to 

introduce secondary evidence 

concerning the information sought; and 

(4) Strike any part of the pleadings or 

other submissions of the party failing to 

comply with such request. 

(d) Failure to prosecute or defend. If 

a party fails to prosecute or defend an 

action under this part, the Presiding 

Officer may dismiss the action, or enter 

an order of default and an Initial 

Decision. 

(e) Failure to file timely. The 

Presiding Officer may refuse to consider 

any motion or other pleading, report, or 

response which is not filed in a timely 

fashion. 

§ 958.14 Ex parte communications. 

Communications between a Presiding 

Officer and a party shall not be made on 

any matter in issue unless on notice and 

opportunity for all parties to participate. 

This prohibition does not apply to 

procedural matters. A memorandum of 

any communication between the 

Presiding Officer and a party shall be 

transmitted by the Presiding Officer to 

all parties. 

§ 958.15 Post-hearing briefs. 

Post-hearing briefs and reply briefs 

may be submitted upon such terms as 

established by the Presiding Officer at 

the conclusion of the hearing. 

§ 958.16 Transcript of proceedings. 

Testimony and argument at oral 

hearings shall be reported verbatim, 

unless the Presiding Officer orders 

otherwise. Transcripts or copies of the 

proceedings may be obtained by the 

parties at such rates as may be fixed by 

contract between the reporter and the 

Postal Service. 

§ 958.17 Initial decision. 

(a) After the conclusion of the 

hearing, and the receipt of briefs, if any, 

from the parties, the Presiding Officer 

shall issue a written Initial Decision, 

including his or her findings and 

determinations. Such decision shall 

include the findings of fact and 

conclusions of law which the Presiding 

Officer relies upon in determining 

whether the respondent is liable for 

civil penalties, clean-up costs and/or 

damages for mailing hazardous 


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18634 Federal Register / Vol. 74, No. 78 / Friday, April 24, 2009 / Rules and Regulations 

materials and/or related violations 

under 39 U.S.C. 3018, and, if liability is 

found, shall set forth the amount of any 

civil penalties, clean-up costs and/or 

damages imposed. 

(b) The Presiding Officer shall 

promptly send to each party a copy of 

his or her Initial Decision. A party may, 

in accordance with § 958.18, appeal an 

adverse Initial Decision to the Judicial 

Officer. Unless a party timely appeals in 

accordance with § 958.18, the Presiding 

Officer’s Initial Decision, including the 

findings and determinations, becomes 

the final agency decision. 

§ 958.18 Appeal of initial decision to 

Judicial Officer. 

(a) Notice of appeal and supporting 

brief. A party may appeal an adverse 

Initial Decision by filing, within 30 days 

after the Presiding Officer issues the 

Initial Decision, a Notice of Appeal with 

the Recorder. The Judicial Officer may 

extend the filing period but only if the 

party files a request for an extension 

within the initial 30-day period and 

demonstrates good cause for such 

extension. 

(1) The Notice of Appeal must be 

accompanied by a written brief 

specifying the party’s exceptions, and 

any reasons for such exceptions, to the 

Presiding Officer’s Initial Decision. 

(2) Within 30 days of receiving the 

party’s brief, the opposing party may file 

with the Judicial Officer a response to 

the specified exceptions to the Presiding 

Officer’s Initial Decision. 

(b) Form of review. Review by the 

Judicial Officer will be based entirely on 

the record and written submissions. 

(1) The Judicial Officer may affirm, 

reduce, reverse, or remand any 

determination about a penalty or 

assessment by the Presiding Officer. 

(2) The Judicial Officer shall not 

consider any argument or objection that 

was not raised in the hearing unless the 

interested party demonstrates that the 

failure to raise the argument or objection 

before the Presiding Officer was caused 

by extraordinary circumstances. 

(3) If any party demonstrates to the 

satisfaction of the Judicial Officer that 

additional evidence not presented at the 

hearing is material and that there were 

reasonable grounds for the failure to 

present such evidence, the Judicial 

Officer may remand the matter to the 

Presiding Officer for consideration of 

such additional evidence. 

(c) Decision of Judicial Officer. The 

Judicial Officer shall promptly serve 

each party to the appeal with a copy of 

his or her decision. The decision of the 

Judicial Officer constitutes final agency 

action and becomes final and binding 

on the parties. 

§ 958.19 Form and filing of documents. 

(a) Every pleading filed in a 

proceeding under this part must contain 

a caption setting forth the title of the 

action, the docket number (after 

assignment by the Recorder), an 

accurate designation of the document, 

and the name, address, and telephone 

number of the party on whose behalf the 

paper was filed. It shall also be signed 

by the party or party representative 

submitting the document. 

(b) The original and three copies of all 

pleadings and documents in a 

proceeding conducted under this part 

shall be filed with the Recorder, Judicial 

Officer Department, United States Postal 

Service, 2101 Wilson Boulevard, Suite 

600, Arlington, Virginia 22201–3078. 

Normal Recorder business hours are 

between 8:15 a.m. and 4:45 p.m., eastern 

standard or daylight saving time. The 

Recorder will transmit a copy of each 

document filed to the other party, and 

the original to the Presiding Officer. 

(c) Pleadings or other document 

transmittals to, or communications 

with, the Postal Service, other than to 

the Recorder under paragraph (a) of this 

section, shall be made through the 

Determining Official or designated 

Postal Service attorney. If a notice of 

appearance by a representative is filed 

on behalf of the respondent, pleadings 

or document transmittals to, or 

communications with, the respondent 

shall be made through his or her 

representative. 

§ 958.20 Service of notice of docketing 

and hearing, other documents. 

Unless otherwise specified, service of 

a Notice of Docketing and Hearing or 

any other document under this part 

shall be effected by registered or 

certified mail, return receipt requested, 

or by personal delivery. In the case of 

personal service, the person making 

service shall, if possible, secure from the 

party or other person sought to be 

served, or his or her agent, a written 

acknowledgement of receipt, showing 

the date and time of such receipt. If the 

person upon whom service is made 

declines to acknowledge receipt, the 

person effecting service shall execute a 

statement, indicating the time, place 

and manner of service, which shall 

constitute evidence of service. 

§ 958.21 Computation of time. 

In computing any period of time 

provided for by this part, or any order 

issued pursuant to this part, the time 

begins with the day following the act, 

event, or default, and includes the last 

day of the period, unless it is a 

Saturday, Sunday, or legal holiday 

observed by the Federal Government, in 

which event it includes the next 

business day. Except as otherwise 

provided in these rules or an applicable 

order, prescribed periods of time are 

measured in calendar days rather than 

business days. 

§ 958.22 Continuances and extensions. 

Continuances and extensions may be 

granted under these rules for good cause 

shown. 

§ 958.23 Settlement. 

Either party may make offers of 

settlement or proposals of adjustment at 

any time. The Determining Official has 

the exclusive authority to compromise 

or settle any determinations of liability 

for civil penalties, clean-up costs and/or 

damages for mailing hazardous 

materials and/or related violations 

under 39 U.S.C. 3018, without the 

consent of the Presiding Officer or 

Judicial Officer. 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. E9–9376 Filed 4–23–09; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2008–0239; FRL–8896–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Minnesota 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving site specific 

revisions to the Minnesota sulfur 

dioxide (SO2) State Implementation 

Plan (SIP) for the Federal Cartridge 

Company and Hoffman Enclosures, 

located in the city of Anoka, Anoka 

County, Minnesota. On March 3, 2008, 

the Minnesota Pollution Control Agency 

(MPCA) requested that EPA approve 

certain portions of joint Title I/Title V 

documents into the Minnesota SO2 SIP 

for Federal Cartridge Company and 

Hoffman Enclosures. The state is also 

requesting in this submittal that EPA 

rescind the Administrative Order issued 

to Federal Hoffman, Inc. which is 

currently included in Minnesota’s SIP 

for SO2. The emissions units previously 

owned by Federal Hoffman, Inc., are 

now owned by Federal Cartridge 

Company and Hoffman Enclosures. 

Because the sulfur dioxide emission 

limits are being reduced, the air quality 

of Anoka County will be protected. 


tjames on PRODPC75 with RULES