2011-24311. Appeals of Post Office Closings

AGENCY:

Postal Regulatory Commission.

ACTION:

Proposed rulemaking—supplement.

SUMMARY:

This document supplements a recently-issued proposed rulemaking on appeals of post office closings by eliminating a publication requirement and by making several minor conforming changes. Including these changes as part of the more comprehensive rulemaking promotes efficiency by allowing interested persons to address proposed changes in one filing. These changes affect only the Commission's general rules of practice and procedure. They do not affect any of the provisions in proposed new part 3025. Persons who need additional time to comment on the changes in this supplemental proposed rule may request additional time.

DATES:

Comments are due: October 3, 2011.

ADDRESSES:

Submit comments electronically by accessing the “Filing Online” link in the banner at the top of the Commission's Web site (http://www.prc.gov) or by directly accessing the Commission's Filing Online system at https:www.prc.gov/​prc-pages/​filingonline/​login.aspx. Commenters who cannot submit their views electronically should contact the person identified in the FOR FURTHER INFORMATION CONTACT section for advice on alternatives to electronic filing.

FOR FURTHER INFORMATION CONTACT:

Stephen L. Sharfman, General Counsel, at 202-789-6920 (for proposal-related information) or [e-mail] (for electronic filing assistance).

SUPPLEMENTARY INFORMATION:

Regulatory history: 76 FR 54179 (August 31, 2011).

On August 18, 2011, the Commission issued Order No. 814 proposing to amend rules governing appeals of Postal Service final determinations to close or consolidate post offices.^[1] One of the purposes of the proposed rules is to streamline the appeals process. Upon further consideration, the Commission believes that further streamlining is possible by eliminating the current requirement that notice of each appeal filed with the Commission be published in the Federal Register. Publication of such notice in the Federal Register is not required by statute or the Constitution. Accordingly, the Commission proposes to amend 39 CFR 3001.17.^[2] Comments on the amendment to rule 17 are due October 3, 2011 (the same date comments are due pursuant to Order No. 814).

Appeals of Postal Service determinations to close or consolidate a post office are limited to persons served by that post office. 39 U.S.C. 404(d)(5). Postal Service determinations to close or consolidate a post office must be in writing and must be made available to persons served by such office. 39 U.S.C. 404(d)(3). Such determinations should apprise affected persons of their right to appeal the decision to the Commission within 30 days of its being made available to such persons.

Under its current rules, upon receipt of an appeal the Commission's practice has been to notify the Postal Service of the filing and to issue an order docketing the appeal, appointing a Public Representative, and establishing a procedural schedule governing submission of the underlying record and briefs in the proceeding. Pursuant to 39 CFR 3001.17(c), the Commission also directed that its order be published in the Federal Register. The Commission has determined that publication of its order in the Federal Register is unnecessary. It, therefore, proposes to eliminate that requirement.

Under the Administrative Procedure Act, Public Law 79-404, 60 Stat. 237, 1946 (APA), “ ‘adjudication' means agency process for formulation of an order.” 5 U.S.C. 551(7). Appeals initiated under section 404(d) are not formal adjudications under the APA (5 U.S.C. 554) because, pursuant to section 404(d)(5)(C), the provisions of 5 U.S.C. 556 and 557 do not apply to post office appeal proceedings.

Instead, appeals of post office closings are a form of informal adjudication.^[3] The Commission is not required by section 404(d) or any other statutory provision to publish in the Federal Register notice that a post office appeal has been filed with it. As with all its orders, the Commission does publish orders issued in post office appeal proceedings on its Web site and, if needed, mails a copy of it to parties without access to the Commission's Web site. Moreover, both the Commission's and the Postal Service's rules require that documents relating to an appeal be displayed at a post office to be closed.^[4] Such postings also serve to apprise persons served by such post office that an appeal has been initiated.

Accordingly, the Commission proposes to amend rule 3001.17 to eliminate the requirement that notice of each post office appeal be published in the Federal Register. In addition, the Commission proposes several housekeeping changes to that rule to delete outdated provisions:

• Remove subparagraphs (a)(1) and (2) and redesignate subparagraphs (a)(3), (4), and (5) as (a)(1), (2), and (3), respectively;
• Revise redesignated subparagraph (a)(2) by changing “subpart E of this part” to “part 3030 of this chapter”;
• Revise redesignated subparagraph (a)(3) by changing “to institute any other proceeding under the Act.” to “it is appropriate.”;
• Remove paragraph (b) and redesignate paragraphs (c) and (d) as (b) and (c), respectively;
• Revise redesignated paragraph (b) by inserting “and” after “on the Postal Service,” and by striking “, and the appellant in the appeal of a Postal Service determination to close or consolidate a post office”;
• Revise redesignated subparagraph (c)(1) by changing “paragraphs (a) and (b)” to “paragraph (a)”; and
• Revise redesignated subparagraph (c)(3) by inserting “and” after “nature of postal services;”, and by striking “or, in the case of an appeal, an identification of the appellant and a summarization of the Postal Service determination to close or consolidate under review”.

Lastly, in Order No. 814, the Commission proposed to allow participants in appeal proceedings (other than the Postal Service) to file hard copy documents thereby eliminating the need for participants to request a waiver of the Commission's online filing requirements. See Order No. 814 at 2, 13. This change is reflected in proposed revisions to rules 3001.9(a) and 10(d). To conform to the proposed changes and to eliminate an outdated reference, the Commission proposes the following change to rule 3001.10(b):

• Revise redesignated paragraph (b) by removing “Participants in proceedings conducted under subpart H who are unable to comply with these requirements may seek to have them waived.”

It is ordered:

1. Comments on the amendments to 39 CFR 3001.17 and 3001.10(b) specified in the body of this Order are due October 3, 2011.

2. The Secretary shall arrange for publication of this document in the Federal Register.

List of Subjects in Part 3001

• Administrative practice and procedure; Freedom of information; Postal service; Sunshine Act

Ruth Ann Abrams,

Acting Secretary.

For the reasons discussed in the preamble, the Postal Regulatory Commission proposes to amend chapter III of title 39 of the Code of Federal Regulations as follows.

PART 3001—[AMENDED]

1. The authority citation for part 3001 continues to read as follows:

Authority: 39 U.S.C. 404(d); 503; 504; 3661.

Subpart A—Rules of General Applicability

2. In § 3001.10, revise paragraph (b) to read as follows:

§ 3001.10

Form and number of copies of documents.

* * * * *

(b) Hard copies. Each document filed in paper form must be produced on letter-size paper, 8 to 81/2 inches wide by 101/2 to 11 inches long, with left- and right-hand margins not less than 1 inch and other margins not less than .75 inches, except that tables, charts or special documents attached thereto may be larger if required, provided that they are folded to the size of the document to which they are attached. If the document is bound, it shall be bound on the left side. Copies of documents for filing and service must be printed from a text-based pdf version of the document, where possible. Otherwise, they may be reproduced by any duplicating process that produces clear and legible copies. Each person filing a hardcopy document with the Commission mut prove an original and two fully conformed copies of the document required or permitted to be filed under this part, except for a document filed under seal, for which only the original and two (2) copies need be filed. The copies need not be signed but shall show the full name of the individual signing the original document and the certificate of service attached thereto.

* * * * *

2. Revise § 3001.17 to read as follows:

§ 3001.17

Notice of proceeding.

(a) When issued. The Commission shall issue a notice of proceeding to be determined on the record with an opportunity for any interested person to request a hearing whenever:

(1) The Postal Service files a request with the Commission to issue an advisory opinion on a proposed change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis;

(2) The Commission in the exercise of its discretion determines that an opportunity for hearing should be provided with regard to a complaint filed pursuant to part 3030 of this chapter; or

(3) The Commission in the exercise of its discretion determines it is appropriate.

(b) Service of notice. Each notice of proceeding shall be served on the Postal Service and the complainant in a complaint proceeding.

(c) Contents of notice. The notice of proceeding shall include the following:

(1) The general nature of the proceeding involved in terms of categories listed in paragraph (a) of this section;

(2) A reference to the legal authority under which the proceeding is to be conducted;

(3) A concise description of proposals for changes in rates or fees; proposals for changes in the nature of postal services; and in the case of a complaint, an identification of the complainant and a concise description of the subject matter of the complaint;

(4) The date by which notices of intervention and requests for hearing must be filed; and

(5) Such other information as the Commission may desire to include.

Footnotes

1.  Notice of Proposed Rulemaking Appeals of Postal Service Determinations to Close or Consolidate Post Offices, August 18, 2011 (Order No. 814).

2.  As noted below, the Commission also proposes several conforming changes to rule 300.17 to remove outdated provisions and one change to rule 3001.10(b).

3.  “Informal adjudications are not covered by the APA at all, generally do not involve a hearing, and are subject to the specific enabling statute of each agency.” James T. O'Reilly, Administrative Rulemaking: Structuring, Opposing, and Defending Federal Agency Regulations 621 (2d ed. 2011).

4.  See 39 CFR 241.3(g)(3)(ii) and 3001.117.