[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14927]
[[Page Unknown]]
[Federal Register: June 20, 1994]
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POSTAL SERVICE
39 CFR Part 953
Rules of Practice in Proceedings Relative to Mailability
AGENCY: Postal Service.
ACTION: Final rule.
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SUMMARY: This rule revises the procedures for appealing non-mailability
determinations, to update, clarify, amplify, and otherwise improve
them.
EFFECTIVE DATE: June 20, 1994.
FOR FURTHER INFORMATION CONTACT: Donna Aspell, (202) 268-5438.
SUPPLEMENTARY INFORMATION: A recent review of the procedural rules in
39 CFR part 953 has revealed several references that require updating
and several provisions that require some rewording for further clarity.
Moreover, the review has revealed that the rules could be improved by
expressing heretofore implicit requirements (e.g., in Sec. 953.17, the
requirement to give the Postal Service's General Counsel notice and the
opportunity to respond when the appellant seeks return of matter found
to be nonmailable); by amplifying requirements that were incompletely
expressed (e.g., in Sec. 953.4, specifying the steps required for
effecting service of notice when the appellant's address is outside the
United States; and in Sec. 953.16, specifying ways in which the hearing
process may be expedited); and by expressly authorizing summary
judgment to dispose of cases presenting no genuine and material issues
of fact.
Most of the sections in part 953 have been changed or modified.
Section 953.5, concerning the reply to be made by the General Counsel,
is moved to Sec. 953.4; the sections following the expanded Sec. 953.4
are consequently renumbered. The text of Sec. 953.1, concerning
authority for the rules, Sec. 953.14, concerning appeal from an initial
decision, and Sec. 953.18, concerning ex parte communications, is
carried forward unchanged in the revised rules.
List of Subjects in 39 CFR Part 953
Administrative practice and procedure, Mailability, Postal Service.
Accordingly, the Postal Service revises 39 CFR part 953 to read as
set forth below:
PART 953--RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO MAILABILITY
Sec.
953.1 Authority of rules.
953.2 Initiation.
953.3 Appeal.
953.4 Service of notice; Reply; Motion for summary judgment.
953.5 Hearings.
953.6 Compromise and informal dispositions.
953.7 Default; Appearances.
953.8 Location of hearing.
953.9 Change of place of hearing.
953.10 Presiding officers.
953.11 Proposed findings of fact and conclusions of law.
953.12 Initial decision.
953.13 Appeal from initial decision.
953.14 Final Agency decision.
953.15 Expedition.
953.16 Disposition.
953.17 Exparte communications.
Authority: 39 U.S.C. 204, 401.
Sec. 953.1 Authority for rules.
These rules of practice are issued by the Judicial Officer of the
U.S. Postal Service pursuant to authority delegated by the Postmaster
General.
Sec. 953.2 Initiation.
Mailability proceedings are initiated upon the filing of a written
appeal with the Recorder, Judicial Officer Department, U.S. Postal
Service, 475 L'Enfant Plaza, SW., Washington, DC 20260-6100.
Sec. 953.3 Appeal.
The appeal shall:
(a) Identify the appellant;
(b) Describe or be accompanied by a copy of the determination or
ruling being appealed;
(c) Describe the character or content of the matter the appellant
wishes to have carried and delivered by the U.S. Postal Service;
(d) Request review of the determination or ruling, specifying each
and every reason why the appellant believes the determination or ruling
should be reversed;
(e) Indicate whether the appellant desires to have an oral hearing
or, instead, to have the case decided solely on the basis of the
written record (i.e., the appeal, the General Counsel's reply, and any
documents submitted by the parties pursuant to an order of the
presiding officer); and
(f) Bear the signature, typed or printed name, title, business
address, and telephone number of any attorney at law representing the
appellant in bringing the appeal, and of each individual appellant or,
if the appellant is a partnership, corporation, limited liability
company, or unincorporated association, of the managing partner, chief
executive officer, chief operating officer, or other officer authorized
to bind the organization.
Sec. 953.4 Service of notice; Reply; Motion for summary judgment.
(a) Service of notice. (1) Upon receiving the appeal, the Recorder
shall issue a notice specifying that the Postal Service General
Counsel's reply shall be filed within 15 days of receipt of the notice;
and the time and place of the hearing (if one was requested).
(2) The Recorder shall promptly serve this notice on the parties as
follows:
(i) The notice, with a copy of the appeal, shall be sent to the
General Counsel at Postal Service headquarters.
(ii) When the appellant's address is within the United States, the
notice, with a copy of the appeal, shall be sent to the postmaster at
the office that delivers mail to the appellant's address. The
postmaster shall be instructed that, acting personally or through a
supervisory employee or a postal inspector, he or she is to serve these
documents on the appellant. If the appellant cannot be found within 3
days, the postmaster shall send these documents to the appellant by
ordinary mail and forward a statement to the Recorder that is signed by
the delivering employee and that specifies the time and place of
delivery.
(iii) When the appellant's address is outside the United States,
the notice, with a copy of the appeal, shall be sent to the appellant
by registered airmail, return receipt requested. A written statement by
the Recorder, noting the time and place of mailing, shall be accepted
as proof of service in the event a signed and dated return receipt is
not received.
(b) Reply. The General Counsel shall file a written reply, in
triplicate, with the Recorder, within the aforementioned 15-day period
or any extension granted by the presiding officer for good cause shown.
If the General Counsel's reply fails to address any allegation in the
appeal, that allegation shall be deemed admitted.
(c) Motion for summary judgment. Upon motion of either the General
Counsel or the appellant, or on the presiding officer's own initiative,
the presiding officer may find that the appeal and answer present no
genuine and material issues of fact requiring an evidentiary hearing,
and thereupon may render an initial decision upholding or reversing the
determination or ruling. The initial decision shall become the final
Agency decision if a timely appeal is not taken.
Sec. 953.5 Hearings.
(a) In general, admissibility of evidence at hearings conducted
under this part hinges 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, or by needless presentation of cumulative evidence.
Testimony shall be given under oath or affirmation, and witnesses are
subject to cross-examination. Stipulations of fact are encouraged and
may be received in evidence.
(b) Objections to the admission or exclusion of evidence shall be
in short form, stating the grounds of objections relied upon. The
transcript shall not include argument or debate thereon except as
ordered by the presiding officer. Rulings on such objections shall be a
part of the transcript.
(c) Formal exceptions to the rulings of the presiding officer made
during the course of the hearing are unnecessary. For all purposes for
which an exception otherwise would be taken, it is sufficient that a
party, when the ruling of the presiding officer is made or sought,
makes known the action he desires the presiding officer to take or his
objection to an action taken, and his grounds therefor.
Sec. 953.6 Compromise and informal dispositions.
Either party may request the other to consider informal disposition
of any question of mailability, and the scheduled hearing date may be
postponed by the presiding officer for such period of time as may be
necessary to accommodate settlement discussions between the parties.
Sec. 953.7 Default; Appearances.
If a timely reply to the appeal is not filed, the presiding officer
shall refer the appeal to the Judicial Officer, who may find that the
General Counsel is in default. Whenever the General Counsel has been
deemed to be in default, the Judicial Officer shall take whatever
action on the appeal he deems appropriate. If an oral evidentiary
hearing is to be held, the appellant may appear at the hearing in
person or by counsel. If either party fails to appear at the hearing,
the presiding officer shall receive the evidence of the party appearing
and render a decision.
Sec. 953.8 Location of hearing.
Unless otherwise ordered by the presiding officer, the hearing
shall be held at Postal Service headquarters, 475 L'Enfant Plaza, SW.,
Washington, DC, on the date set in the notice.
Sec. 953.9 Change of place of hearing.
(a) Not later than the date fixed for the filing of the reply, a
party may file a motion that the scheduled hearing be held at a place
other than that designated in the notice. The motion shall include a
supporting statement outlining:
(1) The evidence to be offered in such place;
(2) The names and addresses of the witnesses who will testify; and
(3) The reasons why such evidence cannot be presented in
Washington, DC.
(b) In ruling on the motion, the presiding officer shall consider
the convenience and necessity of the parties and the relevancy of the
evidence to be offered.
Sec. 953.10 Presiding officers.
The presiding officer at any hearing shall be an Administrative Law
Judge qualified in accordance with law (5 U.S.C. 3105) and assigned by
the Judicial Officer (39 U.S.C. 204), or the Judicial Officer, may at
his discretion, elect to preside at the reception of evidence. The
Judicial Officer shall assign cases to Administrative Law Judges upon
rotation if practicable.
Sec. 953.11 Proposed findings of fact and conclusions of law.
Proposed findings of fact and conclusions of law shall be submitted
orally or in writing at the conclusion of the hearing, or otherwise, as
ordered by the presiding officer.
Sec. 953.12 Initial decision.
Unless given orally at the conclusion of the hearing, the
Administrative Law Judge shall render an initial decision as
expeditiously as practicable after the conclusion of the hearing and
the receipt of the proposed findings and conclusions, if any. The
initial decision shall become the decision of the Postal Service if an
appeal is not perfected. When the Judicial Officer presides at the
hearing, his powers shall include those of an Administrative Law Judge,
but the Judicial Officer may render either an initial or final
decision. Exceptions may be filed to an initial decision rendered by
the Judicial Officer in accordance with Sec. 953.13.
Sec. 953.13 Appeal from initial decision.
Either party may file exceptions in a brief on appeal to the
Judicial Officer within 5 days after receipt of the initial decision
unless additional time is granted. A reply brief may be filed within 5
days after the receipt of the appeal brief by the opposing party.
Sec. 953.14 Final Agency decision.
The Judicial Officer shall render a final Agency decision. The
decision shall be served upon the parties and the postal official
having custody of any mail detained pursuant to the determination or
ruling.
Sec. 953.15 Expedition.
For the purpose of further expedition, either party may move to
have the hearing held at an earlier date than that specified in the
notice. Either party may also move to have the initial decision (if an
Administrative Law Judge or the Judicial Officer is presiding) or the
final Agency decision (if the Judicial Officer is presiding) rendered
orally at the conclusion of the hearing. The presiding officer may
grant or deny any such motion. The parties may, with the concurrence of
the Judicial Officer, agree to waive any of the procedures established
in these rules.
Sec. 953.16 Disposition.
Mail matter found to be nonmailable shall be held at the post
office where detained for a period of 15 days from the date of the
Postal Service decision, unless that period is extended by the Judicial
Officer. During this holding period, the appellant may apply for the
withdrawal of the matter. If any such application is made, the General
Counsel shall be given notice and the opportunity to oppose the
application. Upon the expiration of the holding period with no
application having been made, the Judicial Officer shall order that the
matter be disposed of in accordance with 39 U.S.C. 3001(b). If a timely
application is made, the Judicial Officer shall consider the
application and any reasons advanced by the General Counsel for denying
the application. The Judicial Officer shall thereafter order either
that the matter be returned to the applicant or that it be disposed of
in accordance with 39 U.S.C. 3001(b).
Sec. 953.17 Ex parte communications.
The provisions of 5 U.S.C. 551(14), 556(d), and 557(d) prohibiting
ex parte communications are made applicable to proceedings under these
rules of practice.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 94-14927 Filed 6-15-94; 4:38 pm]
BILLING CODE 7710-12-P
