51888 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 

POSTAL REGULATORY COMMISSION 

39 CFR Parts 3001, 3030, and 3031 

[Docket No. RM2008–3; Order No. 101] 

Administrative Practice and Procedure, 

Postal Service 

AGENCY: Postal Regulatory Commission. 

ACTION: Proposed rule. 

SUMMARY: The Commission is proposing 

new rules to address two types of 

administrative filings authorized under 

a new postal law: complaints and rate 

and service inquiries. It is also 

proposing to delete existing complaint 

rules, as they are overtaken by the 

proposal. Issuance of this document 

reflects the Commission’s ongoing 

implementation of new and revised 

statutory provisions. 

DATES: Initial comments are due October 

6, 2008. Reply comments are due 

October 27, 2008. 

ADDRESSES: Submit comments 

electronically via the Commission’s 

Filing Online system at http:// 

www.prc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Sharfman, General Counsel, 

202–789–6820 and 

stephen.sharfman@prc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction and Background 

This rulemaking is 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 No. 109–435, 

120 Stat. 3218 (2006). The proposed 

rules seek to implement 39 U.S.C. 3662 

setting forth procedures governing the 

disposition of complaints filed with the 

Commission. The proposed 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. 

The Commission’s current complaint 

procedures are found in 39 CFR 3001.81 

et seq. The proposed rules would locate 

the revised, enhanced complaint 

regulations in part 3030 and delete 

those located in subpart E of part 3001. 

The proposed regulations would also 

add a new part 3031 to set up 

procedures for dealing with rate or 

service inquiries. 

Below, the Commission discusses the 

proposed rules with respect to the 

complaint process. Part II presents a 

more thorough discussion and detailed 

outline of the main issues raised in this 

docket by the Commission’s proposed 

rules. Part III provides a section-bysection analysis of each proposed new 

rule. The proposed rules are set forth at 

the end of this Notice. Comments by 

interested persons are due October 6, 

2008. Reply comments are due by 

October 27, 2008. 

These proposed rules represent the 

Commission’s initial effort to establish a 

basic functional framework for 

addressing complaints and other written 

communications received by the 

Commission under its enhanced 

responsibilities due to the passage of 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, 

the Commission will promptly begin 

proceedings to enhance these rules. 

II. Discussion of the Proposed Rules 

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. 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 

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). 

To implement amended section 3662, 

the Commission proposes to revise its 

existing complaint procedures and add 

procedures to deal with rate or service 

inquiries that are not filed as 

complaints. These proposed rules are 

designed to fulfill the intent of Congress 

as expressed in the text of the PAEA. 

The PAEA changed the Commission’s 

role and its relationship with the Postal 

Service. Due to this new role, the 

Commission’s complaint authority was 

significantly expanded by the PAEA. 

Under the former Postal 

Reorganization Act of 1970 (PRA), if the 

Commission found a complaint to be 

justified, its remedial authority 

consisted of issuing a public report or a 

recommended decision to the Governors 

of the Postal Service. See former 39 

U.S.C. 3662 (2000), superseded by Pub. 

L. 109–435. The Commission’s 

complaint authority under the PRA was 

much more limited and the 

Commission’s rules reflected that 

limited role. This limited complaint 

authority reflected the Commission’s 

greater role under the PRA in the rate 

setting process and the fact that rates 

were set in an open, public proceeding. 

In that process, if the public felt that the 

Postal Service was not complying 

appropriately with the policies of the 

PRA, the public could bring those 

concerns to the Commission during the 

rate setting proceeding and the 

Commission could move to balance 

these and other public policies in 

recommending domestic rates. 

Under the PAEA, the Postal Service 

has much greater independence and 

flexibility in managing and setting its 

rates subject to a limited number of 

requirements. Subject to these limits, 

the Postal Service now has broad 

flexibility to balance policies related to 

rates and services. The PAEA 

implemented Congress’ goal of allowing 

the Postal Service to operate more like 

a business in setting its rates and 

offering services in order to allow it to 

more effectively compete with its 

private sector competitors. 

At the same time, the PAEA changed 

and expanded the Commission’s 

complaint authority. The Commission is 

authorized to order the Postal Service to 

come into compliance with the statute 

and remedy the effects of any noncompliance, see 39 U.S.C. 3662(c), order 

fines for deliberate non-compliance, 

section 3662(d), and have the district 

courts of the United States enforce these 

administrative orders, section 3664. The 

PAEA also altered the scope of the 

Commission’s complaint jurisdiction. 

See section 3662 (citing 39 U.S.C. 

101(d), 401(2), 403(c), 601, and chapter 

36). 

This enhancement of the 

Commission’s complaint authority 

reflects Congress’ intent for complaints 

to become one of the major tools to 

achieve the PAEA goal of increased 

accountability and transparency of the 

Postal Service to the public it serves. 

See 39 U.S.C. 3622(b)(6) (‘‘increase the 

transparency of the ratemaking 

process’’); 39 U.S.C. 3691 (transparency 

of service standards); 39 U.S.C. 

3622(b)(3) (‘‘maintain high quality 

service standards’’); 39 U.S.C. 

504(g)(3)(A) (‘‘public interest in 

maintaining the financial transparency 

of a government establishment * * *’’). 

However, even though Congress 


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1The law provides the Commission with 

discretion to determine the form and procedures to 

use for dealing with the variety of complaints it 

may hear under 39 U.S.C. section 3662 (‘‘Any 

interested person * * * may lodge a complaint 

with the Postal Regulatory Commission in such 

form and manner as the Commission may 

prescribe.’’). 

2Under the PAEA, the Commission no longer 

recommends rates. The new statute provides the 

Postal Service with increased flexibility which is 

balanced by an increase in transparency and 

oversight by the Commission. 

expanded the number of issues that the 

Commission could consider in a 

complaint proceeding, the 

Commission’s complaint jurisdiction 

was not intended to be without limit. 

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

The proposed rules distinguish 

between the nature of complaints that 

may be filed with the Commission. They 

recognize that the Commission’s 

primary role is to foster public postal 

policy as set forth in the PAEA by 

focusing on issues and decisions with 

substantial ramifications. 

To carry out this intent of Congress, 

the Commission believes that it is 

appropriate to focus more of its limited 

resources on important issues that raise 

rate and service issues 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 

proposes a two-tiered approach to deal 

efficiently and expeditiously with 

written communications directed to the 

Commission regarding the Postal 

Service. As proposed, these 

communications fall into one of two 

categories: (1) Complaints, and (2) rate 

or service inquiries. The proposed rules 

treat written communications that 

satisfy the form and manner 

requirements discussed below as 

‘‘complaints’’ filed under section 3662. 

Written communications that do not 

meet the form and manner requirements 

would be treated as rate or service 

inquiries provided they include some 

minimal identifying information. The 

differences and reasons for this 

proposed differentiation between the 

categories of written communications 

received by the Commission as well as 

the proposed methods of dealing with 

such communications are discussed 

below. 

These rules are intended to reflect 

Congressional intent that the complaint 

process be available for hearing such 

broad policy matters which, under the 

PRA, would have been handled in the 

context of a comprehensive proceeding. 

Additionally, these proposed rules are 

intended to provide for some residual 

remedy for mailers in the potential 

situation where the Postal Service does 

not adequately deal with mailers’

individual concerns. 

A. Complaints 

Form and manner requirements. The 

Commission’s new proposed complaint 

procedures are designed largely to deal 

with problems, needs, or concerns of 

more than only a limited number of 

persons or those dealing with claims of 

unfair competition. The proposed rules 

categorize written communications as 

complaints under section 3662 if they 

satisfy certain ‘‘form and manner’’

requirements.1 These requirements are 

designed to elicit all the information 

necessary for the Commission to be able 

to make an informed judgment about 

whether or not the complaint raises a 

material issue of fact or law under 

section 3662(b)(1)(A). The proposed 

rules, consistent with past practice, 

explicitly encourage settlement of 

disputes and add the option of 

alternative dispute resolution 

procedures. 

In addition to specifying the statutory 

section or sections to which a complaint 

must apply, Congress only intended for 

the Commission to begin proceedings if 

a particular complaint raised a material 

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

3662(b)(1)(A)(i). 

Nature of complaints. 39 U.S.C. 3662 

provides the basis for the Commission’s 

authority to hear complaints. It provides 

that a complaint may be filed by any 

person who believes that the Postal 

Service is not acting in accordance with 

sections 101(d), 401(2), 403(c), 404(a), 

601, and chapter 36 (or any regulations 

promulgated under these sections). It is 

helpful for this analysis (and to explain 

why the proposed rules were crafted in 

this fashion) to explore the 

commonalities of these statutory 

provisions. First, the Commission 

discusses the statutory provisions that 

may raise broad policy issues. Then, the 

Commission discusses those statutory 

sections that may raise issues relating to 

unfair competition. 

In the Commission’s new role created 

by the PAEA, chapter 36 controls the 

Postal Service’s and Commission’s 

authority over rates and services of 

market dominant products, competitive 

products, and experimental products. 

Chapter 36 expresses Congressional 

intent with respect to the national 

policies that the Postal Service and the 

Commission are to apply with respect to 

rate setting and providing services to the 

public.2

These rates and services are typically 

designed in a manner that affects a 

significant number of individuals, 

represents a pattern or practice, or 

impacts a substantial region of the 

nation. In certain circumstances, rates or 

services are designed to apply to 

individual mail users or limited 

numbers of mail users. In such 

situations, competitors may be harmed 

and be the most likely to seek redress. 

Chapter 36 also prescribes specific 

reports that the Postal Service and the 

Commission are tasked with providing. 

These broad reports are designed to 

increase the accountability and the 

transparency of the Postal Service to the 

general public it serves. 

Congress authorized complaints to be 

brought for violations of section 101(d) 

which requires the costs of postal 

operations to be apportioned on a fair 

and equitable basis. The distribution of 

postal operational costs through rates is, 

by its very nature, done on more than 

a localized basis. Related costs are 

pooled to determine national average 

costs for different categories of mail. 

Specific costs for an individual 

mailpiece are not typically considered 

under this section. 

It is important to recognize that 

Congress chose not to include the other 

paragraphs of section 101 in providing 

interested persons with an avenue for 

bringing complaints. For example, 

Congress’s decision not to include 

paragraphs 101(a) and (b) should be 

read as an indicator that Congress did 

not want the Commission to focus its 

limited resources on considering 

complaints of individuals alleging 

isolated violations of section 101. For 

example, section 101(a) requires the 

Postal Service to ‘‘provide prompt, 

reliable, and efficient services to patrons 

in all areas and shall render postal 

services to all communities.’’

Furthermore, section 101(b) provides 

that ‘‘[n]o small post office shall be 

closed solely for operating at a deficit 

* * *.’’ By excluding these provisions, 

Congress altered the Commission’s 

complaint jurisdiction to controversies 

raising broad policy issues such as these 

cost apportionment concerns. 

Section 401(2) deals with the Postal 

Service’s authority to promulgate 

regulations. In allowing complaints to 

be brought for violations of this section, 

Congress authorized interested persons 

to petition for review of specific Postal 

Service rules and regulations claimed to 

be unlawful. This section concerns the 

adoption and amendment of the Postal 

Service’s rules and regulations and the 

overall policy behind those regulations, 

not the application of a particular rule 

to an individual mail user. This 

provides further support that Congress 

intended the Commission’s complaint 

authority typically be used to consider 

issues of broad applicability. 


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Section 601 permits the carriage of 

letters out of the mail under certain 

conditions. Thus, it may affect potential 

competitors’ abilities to compete with 

the Postal Service for certain aspects of 

the Postal Service’s business. In 

allowing complaints for violations of 

this section, Congress provided a check 

on the monopoly powers of the Postal 

Service and a means to address claims 

that it was using those powers to give 

itself an unfair competitive advantage in 

those areas where Congress believed 

that competition with the Postal Service 

is in the best interest of the nation. 

Accordingly, individualized complaints 

may be based upon this section as such 

complaints are rooted in claims of 

unfair competition. 

Section 403(c) prohibits the Postal 

Service from establishing rates, 

classifications, and fees that either 

unduly discriminate against or grant an 

unreasonable preference to any mail 

users. By including section 403(c) 

within the statutory provisions that 

interested persons are allowed to file 

complaints under, section 3662 

provides individuals with a forum for 

seeking relief against the Postal Service 

action alleged to be unduly 

discriminatory or preferential. This 

section reflects the bedrock regulatory 

principle of maintaining a level playing 

field among competing private entities 

as well as those entities that compete 

against the Postal Service for the nonmonopoly aspects of its business. 

Accordingly, individualized complaints 

would lie under this section. 

Section 404a limits the Postal Service 

power (1) to establish regulations which 

have the effect of harming competition; 

(2) to compel private entities to disclose 

information about their intellectual 

property; or (3) to use information 

obtained from a person without their 

consent and then offer any postal 

product that uses or is based on such 

information. These provisions 

effectively limit the Postal Service’s 

authority to control certain aspects of 

the marketplace. In allowing complaints 

to be brought for violations of this 

section, Congress provides for an 

independent regulatory body to 

maintain fair competition and a level 

playing field among the Postal Service, 

its competitors, and its suppliers. 

Accordingly, individualized complaints 

may be based upon this section. 

The proposed rules are designed to 

help the Commission identify those 

complaints that are more likely to raise 

material issues of fact or law as required 

by section 3662(b)(1)(A) related to the 

policy issues attendant to chapter 36 

and the enumerated sections discussed 

above. They allow for efficient use of 

the Commission’s limited resources on 

complaints that may raise material 

issues of fact or law. 

At the same time, the Commission’s 

rules are designed to encourage the 

expeditious resolution of complaints 

that may be less likely to raise broader 

material issues of fact or law under 

3662(b)(1)(A) or raise broad issues of 

public postal policy. The proposed 

complaint rules are designed to strike an 

appropriate balance between ensuring 

that postal management receives 

increased flexibility while providing the 

accountability and transparency of the 

Postal Service as envisioned by the 

PAEA. 

Most local issues related to problems 

associated with individual mailers do 

not raise postal public policy concerns. 

Instead, they raise issues which are 

typically isolated incidents or those 

affecting only a few mail users. These 

are typically best resolved by the Postal 

Service at the local level. To ensure that 

the Commission is effective and 

efficient, the Commission proposes to 

initially take a more informal approach 

toward dealing with these types of 

complaints. Such procedures provide 

the Postal Service with an opportunity 

to remedy the alleged wrongdoing prior 

to the Commission taking any action. 

This serves the PAEA goal of allowing 

postal management greater flexibility in 

dealing with its customers without 

unnecessary and potentially 

burdensome regulatory involvement. 

The Commission, however, recognizes 

that some of these complaints may in 

fact raise public postal policy issues that 

are important to the postal system and 

have a greater potential to raise material 

issues of fact or law. Accordingly, if the 

Postal Service is unable to resolve such 

complaints on a more informal basis, 

the Commission will take appropriate 

action. If the complaint raises material 

issues of fact or law in accordance with 

39 U.S.C. 3662(b)(1)(A) formal 

complaint procedures will be initiated. 

The Commission’s proposed rules are 

also designed to provide more formal 

treatment for issues raised by individual 

matters when those issues appear to 

represent a potential pattern or practice 

affecting a significant number of mail 

users. The Commission believes that 

such systemic patterns or practices have 

a significant likelihood of raising broad 

policy issues whereby more formal 

procedures may be appropriate. 

B. Rate or Service Inquiries 

The complaint procedures apply to 

written communications directed to the 

Commission that meet the form and 

manner requirements of the proposed 

complaint rules. The proposed rate or 

service inquiry procedures apply to 

written communications directed to the 

Commission that are not filed as 

complaints. The Postal Service typically 

is best suited to address these matters 

and should deal with such issues in the 

first instance in accordance with the 

PAEA goal of greater management 

responsibility and flexibility. 

Nonetheless, the 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. 

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. 

C. Commission Investigator 

The Commission’s proposed rules 

allow it to appoint an investigator to 

explore issues raised in a complaint or 

rate or service inquiry filing. The 

Commission believes that the ability to 

appoint an investigator will allow it to 

deal more efficiently with complaints in 

certain situations, particularly where 

more information that cannot be easily 

obtained through more conventional 

means may be needed, or where the use 

of conventional means would bring 

undue delay. With the assistance of an 

investigator, the Commission may be 

able to resolve a complaint at an early 

stage of the proceeding, thereby saving 

the parties litigation costs, time, and 

resources. 

39 U.S.C. 503 allows the Commission 

to promulgate regulations to carry out 

its obligations and functions under its 

new, PAEA-enhanced responsibilities. 

One of these enhanced responsibilities 

is the Commission’s enforcement 


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authority to order the Postal Service to 

take remedial action. 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. 

The Commission does not envision 

the investigator playing a dominant role 

in any complaint proceedings. The 

parties remain advocates for their 

positions and the investigator will act as 

a neutral fact gatherer in order to 

develop the record. As a check and 

balance, the parties will always have the 

opportunity to review the investigator’s 

public, written findings and make 

comments to the Commission prior to 

its decision. 

D. Conclusion 

As noted earlier, these complaint and 

rate or service inquiry rules are meant 

to provide structure, and allow the 

Commission to effectively and 

efficiently deal with concerns as they 

arise. At the current time, the 

Commission has confidence in the 

Postal Service’s ability to manage and 

direct remediation of individual, 

localized mailer problems. If, over the 

course of time, the Commission 

determines through its data collection 

and monitoring of complaints and rate 

or service inquiries that the Postal 

Service is not dealing effectively with 

such individual, localized mailer issues, 

the Commission may determine that 

revised rules are necessary to allow it to 

play a more active role in the process. 

III. Section-by-Section Analysis 

In this part, the Commission reviews 

the proposed rules, describing what 

each rule seeks to accomplish. The 

purpose of this section-by-section 

analysis is to assist the commenters in 

determining the nature of each proposed 

regulation and the rationale behind it. 

Each proposed section is discussed 

below. 

Section 3030.1 Applicability. This 

proposed rule 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 rules 

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 proposed rule 

describes the nature of complaints that 

the Commission will consider. It 

expands upon the Commission’s current 

‘‘Scope and nature of complaints’’ rule, 

39 CFR 3001.82, to conform with the 

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

Section 3030.10 Complaint contents. 

This proposed rule 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 proposed rule requires the 

complainant to certify that it has 

attempted to meet or confer with the 

Postal Service. 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 an 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 

proposed rule requires the complainant 

to serve the complaint on the Postal 

Service at the same time the complaint 

is filed with the Commission. This rule 

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. 

Section 3030.12 Pleadings filed in 

response to a complaint. This proposed 

rule governs the timeline for the Postal 

Service to respond to complaints. The 

Postal Service has 20 days to respond to 

a formal 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 

application of rate or service inquiry 

procedures. This proposed rule 

addresses the Commission’s ability to 

apply the rate or service inquiry special 

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 special 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 above, these 

topics raise important policy issues that 

Congress intended the Commission to 

consider in the first instance. 

Section 3030.14 Answer contents. 

This proposed rule identifies the 

information to be included in an answer 

filed with the Commission. The 

requirements for the proposed rule are 

based largely upon the Federal Energy 

Regulatory Commission’s answer rule, 

18 CFR 385.213. The proposed rule 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 rule 

requires the Postal Service to certify that 

it has attempted to meet or confer with 

the complainant. This mirrors the 

provision in proposed rule 3030.10 

designed to foster settlement. 

Section 3030.20 Sufficiency of 

information. This proposed rule 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 

proposed rule allows the Commission to 

appoint an investigator to explore some 

or all of the issues raised in a complaint. 

This proposed 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 

proposed rule 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. 


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Section 3030.40 Policy on 

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

separate rule. The Commission believes 

that its policy favoring settlement is 

important and should be in a separate 

rule to emphasize its importance and so 

that it can be found easily in the Code 

of Federal Regulations. 

Section 3030.41 Satisfaction. This 

proposed rule 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 rule 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 

proposed rule sets forth the potential 

statutory remedies for a complaint that 

the Commission finds to be justified. 

The Commission has three types of 

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 rule 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 proposed rule 

identifies the information that should be 

included in rate or service inquiries. 

The requirements for this proposed rule 

are based in part on the Federal 

Communications Commission’s 

informal complaint rules, 47 CFR 1.716. 

The proposed rule 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 proposed rule 

sets forth the special 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 proposed rule also provides for the 

appointment of an investigator or officer 

to represent the general public if the 

Commission believes that a systematic 

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. 

IV. Public Representative 

Pursuant to 39 U.S.C. 505, Kenneth E. 

Richardson is appointed to serve as 

officer of the Commission (Public 

Representative) to represent the 

interests of the general public in the 

above-captioned docket. 

It is Ordered: 

1. Docket No. RM2008–3 is 

established for the purpose of receiving 

comments on the Commission’s 

proposed rules under the Postal 

Accountability and Enhancement Act 

establishing procedures governing the 

disposition of complaints filed with the 

Commission. 

2. The Commission proposes to 

amend its rules of practice and 

procedure as shown below. The 

proposed amendments involve 

removing subpart E of part 3001 and 

adding new parts 3030 and 3031. 

3. Kenneth E. Richardson is 

designated as an officer of the 

Commission representing the interests 

of the general public in this docket. 

4. Interested persons may submit 

comments by October 6, 2008. 

5. Interested persons may submit 

reply comments by October 27, 2008. 

6. The Secretary shall arrange for 

publication of this Notice in the Federal 

Register. 

List of Subjects in 39 CFR Parts 3030 

and 3031 

Administrative practice and 

procedure, Postal Service. 

Issued: August 21, 2008. 

By the Commission. 

Judith M. Grady, 

Acting Secretary. 

For the reasons stated in the 

preamble, under the authority at 39 

U.S.C. 3662, the Postal Regulatory 

Commission proposes to amend 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. 

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 application of rate 

and service inquiry procedures. 

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 3001.27 

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. 


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Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Proposed Rules 51893 

§ 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; 

(9) Include a certification that states 

that prior to filing, the complainant 

attempted to meet or confer with the 

Postal Service to resolve or settle the 

complaint, why the complainant 

believes additional such steps or 

utilizing some form of alternative 

dispute resolution 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: [Postal Service 

designated e-mail to be determined in 

final rule]. A complaint is not deemed 

filed until it is served on the Postal 

Service. 

§ 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 application of 

rate or service inquiry procedures. 

(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 the beginning of such a 

pattern); 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 

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; 

(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, the Postal Service 

attempted to meet or confer with the 

complainant to resolve or settle the 

complaint, whether the Postal Service 

believes additional such steps or 

utilizing some form of alternative 

dispute resolution would be 

inappropriate and the reasons for that 

belief. 

(b) The Commission may waive any of 

the requirements listed in paragraph (a) 

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 


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Commission determines that additional 

information is necessary to enable it to 

evaluate whether the complaint raises 

material issues of fact or law, the 

Commission may, in its discretion, 

require the complainant and/or the 

Postal Service to provide additional 

information as deemed necessary or 

issue an appropriate order to appoint an 

investigator in accordance with 

§ 3030.21. 

§ 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 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 

the 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. 

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. 

(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 

sufficient volume of rate or service 

inquiries on the same or similar issue 

such that there may be sufficient 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. E8–20581 Filed 9–4–08; 8:45 am] 

BILLING CODE 7710–FW–P 


jlentini on PROD1PC65 with PROPOSALS2