[Federal Register Volume 74, Number 194 (Thursday, October 8, 2009)]
[Proposed Rules]
[Pages 51815-51823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24222]
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POSTAL REGULATORY COMMISSION
39 CFR Parts 3001 and 3005
[Docket No. RM2009-12; Order No. 293]
Subpoena Procedures
AGENCY: Postal Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission is proposing rules to address issuance of,
compliance with, and enforcement of administrative subpoenas directed
to the Postal Service. The proposed rules also address orders related
to depositions and interrogatory responses. The Commission has
developed this proposal in response to new statutory authority. It
invites comments on its proposed approach to implementation of this new
authority.
DATES: Comments due November 9, 2009. Reply comments due November 23,
2009.
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 or [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
III. Changes Made by the PAEA
IV. Discussion of the Proposed Rules
V. Section-by-Section Analysis
VI. Public Representative
VII. Ordering Paragraphs
I. Introduction
This notice of proposed rulemaking is the latest in a series of
actions being taken by the Postal Regulatory Commission (Commission) to
implement provisions of the Postal Accountability and Enhancement Act
(PAEA), Public Law 109-435, 120 Stat. 3198, December 20, 2006. Section
602 of the PAEA amends section 504 of title 39 of the United States
Code by adding a new paragraph 504(f) \1\ which, among other things,
authorizes: (a) The issuance of subpoenas requiring officers,
employees, agents, or contractors of the United States Postal Service
(Postal Service) to appear and present testimony or to produce
documentary or other evidence; and (b) the issuance of orders that
require the taking of depositions and responses to written
interrogatories by any of those same persons. As amended, section 504
further authorizes the enforcement of subpoenas by appropriate district
courts of the United States. See 39 U.S.C. 504(f)(3).
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\1\ Section 601(a)(3) of the PAEA created section 504 by re-
designating then-existing section 3604 of title 39 as section 504.
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II. Background
Prior to passage of the PAEA, the Commission's authority to compel
the production of relevant information from the Postal Service was
limited. Section 3603 of the Postal Reorganization Act (PRA) \2\ gave
the Commission's predecessor, the Postal Rate Commission, the authority
to
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\2\ Sections 601(a)(3), 604(a) and 1010(c)(1) of the PAEA
renumbered section 3603 of the PRA as Sec. 503 and amended Sec.
503 by, inter alia, replacing ``Postal Rate Commission'' with
``Postal Regulatory Commission.''
promulgate rules and regulations and establish procedures, subject
to chapters 5 [Administrative Procedure] and 7 [Judicial Review] of
* * * [the Administrative Procedure Act, 5 U.S.C. 101, et seq.] * *
*, and [to] take any other action they deem necessary and proper to
carry out their functions and obligations to the Government of the
United States and the people as prescribed under this chapter [of
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the PRA].
Acting pursuant to these authorities, the Postal Rate Commission
established a number of procedures and adopted rules of practice.
Among the procedures regularly used by the Commission and presiding
officers in proceedings over the years has been the procedure of
issuing information requests. Such requests have been routinely issued
to obtain information that supplemented, clarified or more fully
explained information presented by, or positions taken by, the Postal
Service and other participants in Commission proceedings.
In addition, the Commission's original rules of practice were
codified as 39 CFR part 3001. Rule 3 of those rules states that ``[t]he
rules of practice in this part are applicable to proceedings before the
* * * Commission under the Act, including those which involve a hearing
on the record before the Commission or its designated presiding
officer.'' Several rules govern discovery in Commission proceedings:
Rule 25 (Discovery--general policy); rule 26 (Interrogatories for the
purpose of discovery); rule 27 (Requests for production of documents or
things for purpose of discovery); and rule 28 (Requests for admission
for purpose of discovery).
Prior to passage of the PAEA, there were occasions on which the
Commission and the Postal Service could not agree on whether certain
information requested by the Commission had to be produced. While in
most cases the Commission and the Postal Service were able to resolve
their disagreements in a mutually satisfactory manner, there were cases
in which disagreements proved to be irreconcilable. In those instances,
the Postal Service's refusal to provide information delayed and
complicated the Commission's ability to carry out its duties.\3\ The
Postal Service's refusal to provide the requested information forced
the Commission to rely upon alternate and less desirable information in
order to carry out its statutory responsibilities.
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\3\ See PRC Op. R94-1, paras. 3188-93 (refusal of Postal Service
to comply with order compelling responses to interrogatories); and
PRC Op. MC96-3 at 35 (refusal of Postal Service to comply with order
directing it to present additional cost presentations).
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The Commission's inability to obtain the specific information it
had requested in those cases was ultimately due to the fact that the
Commission could not enforce its orders. Neither the PRA, nor the
Administrative Procedure Act (APA), authorized the Commission to seek a
court order directing production of the requested information.
The typical mechanism for enabling an administrative agency to
compel production of information is the judicially enforceable
administrative subpoena.\4\ Without the authority to
[[Page 51816]]
issue subpoenas and enforce them in court, the Commission's only
recourse was to deal indirectly with the Postal Service's refusal to
provide the desired information.\5\
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\4\ See Report to Congress on the Use of Administrative Subpoena
Authorities by Executive Branch Agencies and Entities, U.S.
Department of Justice Office of Legal Policy (December 2002).
Administrative subpoenas and their enforcement by courts must be
specifically provided for by statute. Id. The PRA contains no
provision for issuing administrative subpoenas. Section 555(d) of
the APA provides that ``[a]gency subpoenas authorized by law shall
be issued to a party on request and, when required by rules of
procedure, on a statement or showing of general relevance and
reasonable scope of the evidence sought.'' (Emphasis added.) Without
further authorization by law, Sec. 555(d) does not give an agency
the power to issue subpoenas. Similarly, Sec. 556(c)(2) authorizes
presiding officers at agency hearings to ``issue subpoenas
authorized by law * * *.'' (Emphasis added.) Once again, further
authorization is needed for an agency to issue an administrative
subpoena. Without the authority to issue a subpoena, an agency
cannot seek judicial enforcement of its attempts to obtain
information.
\5\ For example, the remedy for failing to obey a Commission
order directing compliance with a discovery request is narrowly
limited. Rule 25 of the rules of practice states that ``[t]he
Commission or the presiding officer may make such orders in regard
to the failure as are just, and among others, may direct that the
matters regarding which the order was made or any other designated
facts shall be taken to be established for the purposes of the
proceeding in accordance with the claim of the participants
obtaining the order, or prohibit the disobedient participant from
introducing designated matters in evidence, or strike the evidence,
complaint or pleadings or parts thereof.'' 39 CFR 3001.25(c).
Notwithstanding the potential availability of those remedies, there
have been occasions on which the Postal Service has refused to
produce data requested by a party to a Commission proceeding. See,
e.g., Docket No. 94-1, Statement of the United States Postal Service
Concerning Order No. 1034, November 3, 1994, at 2 (Postal Service
refusal to release disputed international mail data under amended
protective order).
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III. Changes Made by the PAEA
While limitations on the Commission's ability to compel the
production of information may have been acceptable prior to the passage
of the PAEA, that is no longer the case. Implementation of the PAEA's
``modern system of regulation'' requires that the Commission have
access to information needed to insure financial transparency and to
make informed decisions.\6\ To enable the Commission to carry out its
mission, the PAEA strengthened the Commission's ability to obtain
information by giving it authority under section 504(f) to compel the
production of relevant and material information by order and by
subpoena.
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\6\ Prior to enactment of the PAEA, the Commission's need for
enhanced authority to compel the production of needed information
was expressly recognized by the 2003 Report of the President's
Commission on the United States Postal Service entitled Embracing
the Future: Making the Tough Choices to Preserve Universal Mail
Service (Presidential Commission Report). That report recommended
that the Commission be given ``the authority to request accurate and
complete financial information from the Postal Service, including
through the use of subpoena powers, if necessary. * * *'' Commission
access to such information was deemed essential for it ``to ensure
financial transparency and make fully informed determinations on
issues ranging from rate ceilings to cross-subsidies. * * *'' Id. at
69.
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The pre-PAEA mechanisms for seeking information from the Postal
Service remain available to the Commission. For example, the Commission
continues to issue information requests.\7\ In addition, the rules of
practice in 39 CFR part 3001 remain in effect and will continue to
provide important mechanisms for seeking needed information and data
from the Postal Service.
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\7\ E.g., Docket No. ACR2008, Commission Information Request No.
1, January 14, 2009; Docket No. CP2009-20, Chairman's Information
Request No. 1 and Notice of Filing of Questions (Under Seal),
January 18, 2009.
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Building upon the Commission's existing information collection
mechanisms, Congress enacted 39 U.S.C. 504(f)(2)(A) authorizing the
issuance of subpoenas and 39 U.S.C. 504(f)(2)(B) authorizing the
issuance of orders to take depositions and to provide responses to
written interrogatories.
Hopefully, the mere availability of the new authorities in section
504 will facilitate the resolution of future disagreements between the
Commission and the Postal Service over the appropriateness of producing
requested information and resort to compulsory measures will be
rare.\8\
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\8\ Successful implementation of the PAEA depends heavily upon
the cooperation of all participants, including the Postal Service.
While the Commission considers its authority to compel the
production of information an important addition to its regulatory
tools, it hopes that resort to that new authority will be
unnecessary.
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IV. Discussion of the Proposed Rules
The Commission is proposing the adoption of a new part 3005
organized in three subparts. Subpart A integrates subpart 3005 into the
Commission's existing rules and regulations by making various existing
rules applicable to part 3005. Conforming changes are proposed to 39
CFR 3001.3 of the rules of practice to make clear that the rules of
practice apply to the new part 3005. Subpart B establishes regulations
governing the issuance and enforcement of subpoenas under the authority
of 39 U.S.C. 504(f)(2)(A) and 504(f)(3). Finally, subpart C implements
39 U.S.C. 504(f)(2)(B), which authorizes the ordering of depositions
and responses to written interrogatories. Both the regulations in
subpart B (governing subpoenas) and subpart C (providing for orders
that require depositions and responses to written interrogatories)
apply to ``covered persons'' as defined in 39 U.S.C. 504(f)(4).
A. Part 3001--Rules of Practice and Procedure
Subpart A--Rules of General Applicability. The Commission's
authority under 39 U.S.C. 504(f)(2) to compel the Postal Service to
provide information applies both to proceedings before the Commission
and to situations in which the Commission requires information from the
Postal Service to prepare a report in order to carry out its functions
and obligations. In both situations, procedures are needed to invoke
the authority of 39 U.S.C. 504(f)(2). The proposed amendment to rule 3
is being made to clarify that the rules of practice are to be used in
conjunction with part 3005. This change is consistent with the
inclusion of references in part 3005 to specific rules of practice.
B. Part 3005--Procedures for Compelling Production of Information by
the Postal Service
Subpart A--General. This subpart confirms that part 3005 implements
39 U.S.C. 504(f); makes the Commission's rules of practice applicable
to part 3005; and defines certain terms consistent with the definitions
and usage of those terms in 39 U.S.C. 504(f).
C. Part 3005--Procedures for Compelling the Production of Information
by the Postal Service
Subpart B--Subpoenas. Under the provisions of 39 U.S.C.
504(f)(2)(A), the Chairman, Commissioners designated by the Chairman,
and administrative law judges appointed by the Commission may, upon
compliance with certain statutory requirements, issue subpoenas to a
``covered person.'' A ``covered person'' is defined in 39 U.S.C.
504(f)(4) to mean ``an officer, employee, agent, or contractor of the
Postal Service.'' For a subpoena to be issued, a majority of the
Commissioners holding office must concur in writing prior to its
issuance. 39 U.S.C. 504(f)(2). The Commission can apply to an
appropriate United States district court to enforce its subpoena. 39
U.S.C. 504(f)(3). Failure to obey an order of the court is punishable
as contempt.
The Commission expects that in most cases, its subpoena authority
will be exercised as an enforcement mechanism in the sense that it will
be used to compel the production of information if a prior attempt to
obtain the information was unsuccessful.\9\ Any Commissioner,
administrative law judge, presiding officer, or third party will have
an opportunity to invoke the procedures for issuing a subpoena.\10\
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\9\ The exception, discussed below, would be presented in those
situations in which the Commissioners authorize the issuance of a
subpoena without an information request having previously been made
because of unique circumstances that require the immediate
production of information.
\10\ While Sec. 504(f) authorizes only the Chairman,
Commissioners designated by the Chairman, and administrative law
judges to issue subpoenas, nothing in that section precludes other
persons from seeking the issuance of a subpoena by one of the three
authorized officials.
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[[Page 51817]]
The Commission would emphasize that a subpoena issued under 39
U.S.C. 504(f)(2)(A) is not intended to be a new discovery tool for
third parties. Instead, it will, in most cases, be a mechanism for
enforcing information requests and discovery orders. Issuance of a
subpoena will give the Commission the power to obtain information, but
will not unnecessarily burden the Postal Service. Accordingly, when
discovery disputes arise during a Commission proceeding, the Commission
will not, in general, consider the issuance of a subpoena until the
normal process of seeking information by means of an order to compel
has been unsuccessful. It is at that point that enforcement could be
sought by subpoena.
As a means of enforcing information requests or Commission orders
to compel, a Commission subpoena differs in important ways from
judicial subpoenas.\11\ For example, in the district courts of the
United States, rule 45 of the Federal Rules of Civil Procedure
authorizes the issuance of subpoenas by the clerk of the court or by
attorneys as officers of the court without prior court approval. By
contrast, the Commission's subpoena power under 39 U.S.C. 504(f)(2) is
more narrowly circumscribed and can only be issued by the Chairman,
Commissioners designated by the Chairman, or administrative law judges
appointed by the Commission under 5 U.S.C. 3105. Moreover, to be
issued, a subpoena must receive prior written concurrence from the
majority of Commissioners then holding office.
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\11\ This is not unusual since the issuance of an administrative
subpoena is typically authorized by specific statutory provisions
that reflect the unique mission and needs of a particular agency.
See Report to Congress on the Use of Administrative Subpoena
Authorities by Executive Branch Agencies and Entities Pursuant to
Public Law 106-544, U.S. Department of Justice, Office of Legal
Policy (2001).
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While third parties, such as parties or participants in Commission
proceedings, will not be able to issue their own subpoenas unilaterally
as is the case in court litigation, they can benefit indirectly from
the availability of subpoenas by having the opportunity to request the
Commissioners or an administrative law judge to issue a subpoena. The
proposed regulations expressly authorize such requests. These requests
are analogous to, and a further extension of, the long-standing
procedure available to participants in Commission hearings under which
they can seek a Commission order compelling compliance with a discovery
request. For example, proposed rule 3005.13(a)(1) would permit a party
to seek Commission enforcement by subpoena of a Commission order to
compel a Postal Service response to the party's discovery request.\12\
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\12\ The same would be true with respect to a Commission
information request. Under current practice, any interested person
can request the Commission to issue an information request. See,
e.g., Docket No. ACR2008, Valpak Direct Marketing Systems, Inc. and
Valpak Dealers' Association, Inc. Motion For Issuance of Commission
Information Request Concerning Core Costing Data On Detached Address
Labels, January 13, 2009; and United States Postal Service FY2008
Annual Compliance Report, January 30, 2009. If the Commission issues
the requested information request, an interested person could also
request the issuance of a subpoena to enforce the information
request.
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Another important difference between a judicial subpoena and a
subpoena authorized by 39 U.S.C. 504(f)(2)(A) is that while a judicial
subpoena can be issued to obtain information from almost anyone upon
whom service can be made, a subpoena authorized by 39 U.S.C.
504(f)(2)(A) can only seek information in the possession of a ``covered
person,'' i.e., ``an officer, employee, agent, or contractor of the
Postal Service.''
The process whereby a third party seeks issuance of a subpoena
would begin by filing a written motion under rule 21(a) of the rules of
practice. In cases in which hearings have been ordered by the
Commission, the motion would be filed with the presiding officer.\13\
In the interest of avoiding delay, the Commission is proposing that
requests for administrative subpoenas be served on the Postal Service
even if the information being sought is apt to be in the possession of
a third party, such as a Postal Service contractor. Service upon the
Postal Service would seem appropriate since the information being
sought is information related to the Postal Service and the Postal
Service is therefore the real party in interest. Moreover, the Postal
Service is in the best position to know who within, or outside of, the
Postal Service is in possession of the information. In the event the
information is in the possession of such a third party covered person,
the Postal Service would be required to transmit the request to the
third party.
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\13\ The presiding officer could be the Chairman, another
Commissioner, an administrative law judge appointed under 5 U.S.C.
3105 or a Commission employee.
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The Postal Service and others would be permitted to file answers
under rule 21(b). Since a covered person other than the Postal Service
could ultimately be responsible for producing the requested
information, the Postal Service will be required to obtain from that
covered person any objections that are personal to that covered person
and to presenting such objections in the answer that it files pursuant
to rule 21(b).\14\
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\14\ By giving individuals served with a subpoena the
opportunity to raise objections unique to them, the procedure will
ensure their rights to due process are protected. This procedure
will also obviate the need, as there is in court litigation, for a
motion to quash the subpoena. See Fed. R. Civ. P. 45(c)(3). While
there would be no motion to quash, per se, objections, attempts to
reduce the scope of a subpoena, or requests for protective
conditions by the Postal Service, covered persons, and others would
be made and considered before issuance of the subpoena.
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Upon consideration of the motion, the responses, and any oral
presentations, the presiding officer would forward a recommendation to
the Commission together with the pleadings and relevant portions of the
record. The Commissioners would decide whether issuance of a subpoena
is appropriate and, if so, whether any conditions should be attached to
the subpoena, including conditions requiring confidential treatment
pursuant to part 3007 of the Commission's regulations. In reaching
their decision, the Commissioners could, if they deemed it necessary,
entertain further written or oral submissions before deciding whether
to approve the issuance of a subpoena.
The Commissioners who approve of the issuance of a subpoena would
give their approval in writing and the subpoena would be issued by the
Chairman, a Commissioner designated by the Chairman, or by the
presiding officer (provided the presiding officer was an administrative
law judge appointed under 5 U.S.C. 3105).\15\
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\15\ Attached to this notice is a suggested form for subpoenas
that would be issued under this part 3005. Comments are invited on
this illustrative sample.
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A similar process for requesting the issuance of subpoenas would
apply in situations in which hearings have not been ordered by the
Commission. For example, if the Postal Service fails or refuses to
respond to an information request issued by the Commission, a third
party could file a request for the issuance of a subpoena. In such a
case, a motion would be filed with the Secretary of the Commission
under rule 21(a). The Postal Service and other interested persons could
file answers pursuant to rule 21(b) and the Commission would determine
whether the subpoena should be issued.
Individual Commissioners and presiding officers would also be able
to seek the enforcement of information and discovery requests by
subpoena in the absence of a third party request. Requests by a
Commissioner or presiding officer would be made directly to the full
Commission. If a majority of the Commissioners give
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written approval, a subpoena would be issued by the Chairman, a
Commissioner designated by the Chairman, or an administrative law
judge. Since neither the Postal Service, nor any other interested
person would have had an opportunity to oppose the subpoena, the
subpoena would be subject to motions to quash, limit, or condition the
subpoena.
Although the Commission views the principal purpose of a subpoena
to be the enforcement of information or discovery requests, a subpoena
could also be used as a primary information collection tool. For
example, a properly authorized and issued subpoena could be used to
obtain information even if an information or discovery request has not
previously been presented to the Postal Service. To insure the
availability of subpoenas for this purpose, the Commission has included
provisions in its proposed regulations expressly providing for the
issuance of subpoenas without requiring prior information requests as a
precondition to such issuance.\16\ Subpoenas issued as primary
information collection tools would also be subject to motions to quash,
limit, or condition the subpoena.
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\16\ These provisions are contained in proposed section 3005.12
and are described, infra.
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Section 504(f)(2)(A) does not specify on whom the subpoena must be
served. In a judicial context, when a subpoena seeks information from a
particular person or entity, such as a corporation, the subpoena is
served upon that person or entity. The judicial procedure is
facilitated by the fact that in court litigation there is usually both
sufficient time and opportunity (by means of other discovery methods)
to ascertain who possesses the needed information. By contrast, the
timeframe in which the Commission must act in the wake of the PAEA is
relatively tight given the amount of review and analysis that must be
accomplished. Moreover, the identity of the individuals or entities in
possession of the required information may not be known to the
Commission at the time the information is sought.
To facilitate the transmission of the subpoena to the appropriate
person or persons, the proposed rules provide that subpoenas would be
served on the Postal Service. The Postal Service would, in turn, be
required to transmit the subpoena to the persons responsible for
providing the requested information. After delivery of the subpoena to
the appropriate person, the Postal Service would be required to certify
to the Commission that the subpoena had been delivered and to advise
the Commission of the manner, date, and time of delivery, and the name,
business address, telephone number and e-mail address of the person
receiving the subpoena. The Postal Service would also be required to
confirm that the person receiving the subpoena had been advised of the
return date of the subpoena.
The proposed rules would also establish the parameters for
responses to subpoenas. For example, documents are to be produced in
the form they are kept in the usual course of business; and claims of
undue burden and confidentiality must be adequately supported.
Finally, the rules contemplate the possible need for judicial
enforcement of an administrative subpoena issued by the Commission. The
filing and service requirements are governed by other federal statutes
and rules of court applicable to proceedings in the United States
district courts.
D. Part 3005--Procedures for Compelling the Production of Information
by the Postal Service
Subpart C--Orders Regarding Depositions and Responses to Written
Interrogatories. Section 504(f)(2)(B) of title 39 expressly authorizes
the Chairman, Commissioners authorized by the Chairman, and
administrative law judges appointed by the Commission to ``order the
taking of depositions and responses to written interrogatories by a
covered person.'' Concurrence by a majority of the Commissioners is not
required for the issuance of such an order.
The authorities contained in this section are in addition to the
authorities provided by the PRA and APA which underlie the part 3001
rules of practice and authorize orders compelling discovery. It is the
Commission's view that the authority to issue orders under Sec.
504(f)(2)(B) can therefore be exercised in the context of an
adjudicatory hearing as an alternative to the procedures in part 3001
for compelling discovery. An order can also be issued under Sec.
504(f)(2)(B) outside the context of a Commission proceeding.
V. Section-By-Section Analysis
Section 3001.3 Scope of rules. The amendment to rule 3 of the rules
of practice is intended to clarify that the rules of practice apply
both to proceedings before the Commission and to the procedures in part
3005 for compelling the production of information by the Postal
Service. This change is consistent with the inclusion in part 3005 of
references to specific rules of practice.
Section 3005.1 Scope of rules. This proposed rule states that part
3005 implements 39 U.S.C. 504(f). It also makes applicable the rules of
practice in part 3001, unless otherwise ordered by the Commission.
Section 3005.2 Terms defined. This proposed rule provides
definitions for the terms ``administrative law judge,'' ``Chairman,''
``covered person,'' and ``designated Commissioner'' as used in part
3005.
Section 3005.11 General rule--subpoenas. This proposed rule sets
forth the basic requirements for the issuance of a subpoena pursuant to
39 U.S.C. 504(f)(2)(A). Subpoenas may only be issued by the Chairman, a
designated Commissioner or an administrative law judge. When authorized
in writing by a majority of the Commissioners then in office, a
subpoena shall be issued by the Chairman, a designated Commissioner, or
an administrative law judge. This rule also lists the purposes for
which a subpoena may be issued; the types of conditions or limitations
that may be imposed on the subpoena to protect the recipient of the
subpoena from oppression, undue burden, or expense, including the
possible imposition of confidentiality or non-disclosure conditions as
provided in part 3007 of this chapter; and identifies the rule that
establishes the service requirements for a subpoena. A proposed form of
subpoena is provided as Appendix A to Part 3005--Subpoena Form.
Section 3005.12 Subpoenas issued without receipt of a third-party
request. This proposed rule provides for the issuance of a subpoena
without a request having been received from a third party. For example,
the Commission could deem a subpoena necessary if the Postal Service
were to refuse to provide information during preliminary review of a
Postal Service filing. Or a subpoena could be needed if the Postal
Service were to refuse to provide information needed for the
preparation of a report. Finally, a presiding officer might deem it
necessary to obtain the issuance of a subpoena to enforce a presiding
officer's information request. In such cases, there would be no ``third
party'' request for the subpoena.
From a procedural standpoint, the request would be made directly to
the full Commission by a Commissioner or presiding officer. To insure
that the Postal Service and other interested persons, including covered
persons potentially affected by the subpoena, have an opportunity to
oppose the subpoena, or to limit or condition its scope and operation,
any duly authorized subpoena would be subject
[[Page 51819]]
to a motion under rule 21(a) to quash, limit, or condition the
subpoena. Replies to such a motion could be made by any interested
person under rule 21(b).
As a general rule, the Postal Service would be given an opportunity
to produce information voluntarily before a subpoena is issued under
this section. However, provision is also made for the summary issuance
of a subpoena without issuance of a prior information request. While
the Commission would expect the summary issuance of a subpoena to
rarely, if ever, be necessary, it is including provision for such
summary issuance in order to insure the ability to act promptly if
necessary. In such cases, the Postal Service would have an opportunity
following issuance of the subpoena to file a motion to quash the
subpoena, limit its scope, or to place conditions on the subpoena.
Objections by covered persons could be asserted in any such filing by
the Postal Service. Pending resolution of the Postal Service's motion,
the Postal Service and all covered persons would be required to
maintain the information being sought by the subpoena.
Section 3005.13 Subpoenas issued in response to a third-party
request. This proposed rule establishes procedures by which subpoenas
can be requested by third parties. One set of procedures applies to
those situations in which the Commission has ordered hearings.
Typically, in those cases the subpoena will be available as a means of
enforcing the discovery rules in the Commission's part 3001 rules of
practice. A second set of procedures applies to situations in which no
hearings have been ordered, such as an annual compliance review. In
these cases, information will typically be sought by means of
information requests, including information requests that have been
proposed by a third party and issued by the Commission or a
Commissioner. In this latter situation, a third party would be able to
request the issuance of a subpoena to enforce the information request.
Requests under either procedure must include certain minimum showings
and demonstrations in order to be granted, including showings of
relevance of the information and adequate specification of the
information requested.
Requirements are imposed upon the Postal Service to insure that the
covered person expected to produce the requested information has an
opportunity to present any objections to the issuance of a subpoena
that are unique to that covered person.
Section 3005.14 Service of subpoenas. This proposed rule specifies
the manner in which subpoenas are to be served on covered persons. The
Commission is proposing that subpoenas will be served initially upon
the Postal Service with the requirement that the Postal Service
transmit and deliver the subpoena to the person or contractor
ultimately responsible for testifying or for otherwise providing the
information being sought and that the Postal Service file proof of
service with the Secretary of the Commission that identifies the
covered person expected to supply the requested information. Finally,
provision is made for advising the public as to the return date of the
subpoena.
Section 3005.15 Duties in responding to a subpoena. This proposed
rule specifies the manner in which the recipient of a subpoena will be
required to respond to the subpoena. It covers such subjects as the
form in which documentary information is to be produced; the manner in
which electronically stored information is to be produced; and the
showing that must be made if information is not disclosed on grounds of
privilege, confidentiality, or trade secret. Requests for confidential
treatment of information produced in response to a subpoena are to be
made in the manner provided in part 3007 of the Commission's
regulations.
Section 3005.16 Enforcement of subpoenas. This proposed rule
implements the authority in 39 U.S.C. 504(f)(3) under which the
Commission can seek judicial enforcement of an administrative subpoena
issued pursuant to 39 U.S.C. 504(f)(2)(A).
Section 3005.21 Authority to order depositions and responses to
written interrogatories. This proposed rule implements the authority of
the Chairman, any designated Commissioner or any administrative law
judge to order that a deposition be taken of a covered person or that
the covered person respond to a written interrogatory.
VI. Public Representative
Pursuant to 39 U.S.C. 505, Cassandra Hicks is appointed to serve as
officer of the Commission (Public Representative) to represent the
interests of the general public in the captioned docket.
VII. Ordering Paragraphs
It is ordered:
1. Docket No. RM2009-12 is established for the purpose of receiving
comments on the Commission's proposed rules establishing procedures for
obtaining information from the Postal Service under the Postal
Accountability and Enhancement Act.
2. Interested persons may submit initial comments no later than 30
days from the date of publication of this notice in the Federal
Register.
3. Reply comments may be filed no later than 45 days from the date
of publication of this notice in the Federal Register.
4. Pursuant to 39 U.S.C. 505, Cassandra Hicks is appointed to
represent the interests of the general public in this docket.
5. The Secretary shall arrange for publication of this notice in
the Federal Register.
List of Subjects
39 CFR Part 3001
Administrative practice and procedure, Postal Service.
39 CFR Part 3005
Administrative practice and procedure, Confidential business
information, Postal Service, Reporting and recordkeeping requirements.
By the Commission.
Shoshana M. Grove,
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--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for 39 CFR part 3001 is revised to read
as follows:
Authority: 39 U.S.C. 404(d); 503; 504; 3661.
2. Revise Sec. 3001.3 to read as follows:
Sec. 3001.3 Scope of rules.
The rules of practice in this part are applicable to proceedings
before the Postal Regulatory Commission under the Act, including those
which involve a hearing on the record before the Commission or its
designated presiding officer and, as specified in part 3005 of this
chapter to the procedures for compelling the production of information
by the Postal Service. They do not preclude the informal disposition of
any matters coming before the Commission not required by statute to be
determined upon notice and hearing.
3. Add part 3005 to read as follows:
PART 3005--PROCEDURES FOR COMPELLING PRODUCTION OF INFORMATION BY
THE POSTAL SERVICE
Subpart A--General
Sec.
[[Page 51820]]
3005.1 Scope and applicability of other parts of this title.
3005.2 Terms defined for purposes of this part.
Subpart B--Subpoenas
3005.11 General rule--subpoenas.
3005.12 Subpoenas issued without receipt of a third-party request.
3005.13 Subpoena issued in response to a third-party request.
3005.14 Service of subpoenas.
3005.15 Duties in responding to a subpoena.
3005.16 Enforcement of subpoenas.
Subpart C--Depositions and Written Interrogatories
3005.21 Authority to order depositions and responses to written
interrogatories.
Appendix A to Part 3005--Subpoena Form
Authority: 39 U.S.C. 503; 504; 3651(c); 3652(d).
Subpart A--General
Sec. 3005.1 Scope and applicability of other parts of this title.
(a) The rules in this part govern the procedures for compelling the
production of information by the Postal Service pursuant to 39 U.S.C.
504(f).
(b) Part 3001, subpart A of this chapter applies unless otherwise
stated in this part or otherwise ordered by the Commission.
Sec. 3005.2 Terms defined for purposes of this part.
(a) Administrative law judge means an administrative law judge
appointed by the Commission under 5 U.S.C. 3105.
(b) Chairman means the Chairman of the Commission.
(c) Covered person means an officer, employee, agent, or contractor
of the Postal Service.
(d) Designated Commissioner means any Commissioner who has been
designated by the Chairman to act under this part.
Subpart B--Subpoenas
Sec. 3005.11 General rule--subpoenas.
(a) Subject to the provisions of this part, the Chairman, any
designated Commissioner, and any administrative law judge may issue a
subpoena to any covered person.
(b) The written concurrence of a majority of the Commissioners then
holding office shall be required before any subpoena may be issued
under this subpart. When duly authorized by a majority of the
Commissioners then holding office, a subpoena shall be issued by the
Chairman, a designated Commissioner, or an administrative law judge.
(c) Subpoenas issued pursuant to this subpart may require the
attendance and presentation of testimony or the production of
documentary or other evidence with respect to any proceeding conducted
by the Commission under title 39 of the United States Code or to obtain
information for preparation of a report under said title 39.
(d) Subpoenas issued pursuant to this subpart shall include such
conditions as may be necessary or appropriate to protect a covered
person from oppression, or undue burden or expense, including the
following:
(1) That disclosure may be had only on specified terms and
conditions, including the designation of the time or place;
(2) That certain matters not be inquired into, or that the scope of
disclosure be limited to certain matters;
(3) That disclosure occur with no one present except persons
designated by the Commission;
(4) That a trade secret or other confidential research,
development, or commercial information not be revealed or be revealed
only in a designated way as provided in part 3007 of this chapter; and
(5) Such other conditions deemed necessary and appropriate under
the circumstances presented.
(e) Subpoenas shall be served in the manner provided by Sec.
3005.14.
Sec. 3005.12 Subpoenas issued without receipt of a third-party
request.
(a) A subpoena duly authorized by a majority of the Commissioners
then holding office may be issued by the Chairman, a designated
Commissioner, or an administrative law judge under Sec. 3005.11 of
this part without a request having been made by a third party under
Sec. 3005.13.
(b) Except as provided in paragraph (c) of this section, a subpoena
shall not be issued until after the Postal Service has been provided an
opportunity to produce the requested information voluntarily.
(c) A subpoena may be issued summarily without first providing an
opportunity to produce the requested information voluntarily if a delay
in the issuance of the subpoena could unreasonably limit or prevent
production of the information being sought.
(d) Subpoenas issued under this section shall be issued subject to
the right of the Postal Service and other interested persons to file a
motion pursuant to Sec. 3001.21(a) of this chapter to quash the
subpoena, to limit the scope of the subpoena, or to condition the
subpoena as provided in Sec. 3005.11(d) of this section. Such motion
shall include any objections to the subpoena that are personal to the
covered person responsible for providing the information being sought.
Answers to the motion may be filed by any interested person pursuant to
Sec. 3001.21(a) of this chapter. Pending the resolution of any such
motion, the Postal Service shall secure and maintain the requested
information.
Sec. 3005.13 Subpoena issued in response to a third-party request.
(a) Procedure for requesting and issuing subpoenas when hearings
have been ordered. A participant in any proceeding in which a hearing
has been ordered by the Commission may request the issuance of a
subpoena to a covered person pursuant to Sec. 3005.11.
(1) Subpoenas may be requested to enforce an order to compel
previously issued pursuant to the rules of practice with which the
Postal Service has failed to comply.
(2) Requests for subpoenas under this section shall be made by
written motion filed with the presiding officer in the manner provided
in Sec. 3001.21(a) of this chapter. The Postal Service shall transmit
a copy of the request to any covered person that it deems likely to be
affected by the request.
(3) Answers to the motion may be filed by the Postal Service and by
any other participant. In filing an answer, the Postal Service must
obtain from the covered person responsible for providing the
information being sought any objections that are personal to that
covered person and must provide those objections in its answer together
with the objections, if any, that the Postal Service wishes to assert
on its own behalf. Answers shall be filed as required by Sec.
3001.21(b).
(4) The presiding officer shall forward copies of the motion and
any responses to the Commission together with a recommendation of
whether or not the requested subpoena should be issued and, if so, the
scope and content thereof and conditions, if any, that should be placed
on the subpoena. Copies of the presiding officer's recommendation shall
be served in accordance with Sec. 3001.12 of this chapter.
(5) Following receipt of the materials forwarded by the presiding
officer, the Commissioners shall determine whether the requested
subpoena should be issued and, if so, whether any conditions should be
placed on the scope or content of the subpoena or on the responses to
the subpoena. The Commissioners may, but are not required, to entertain
further oral or written submissions from the Postal Service or the
participants before acting on the request. In making their
[[Page 51821]]
determination, the Commissioners are not bound by any recommendation of
a presiding officer.
(b) Procedure for requesting and issuing subpoenas when no hearings
have been ordered. Any person may request the issuance of a subpoena to
a covered person pursuant to Sec. 3005.11 to enforce an information
request issued by the Commission or a Commissioner even though no
hearings have been ordered by the Commission.
(1) A request for the issuance of a subpoena shall be made by
motion as provided by Sec. 3001.21 of this chapter. A copy of the
request shall be served upon the Postal Service as provided by Sec.
3001.12 of this chapter and by forwarding a copy to the General Counsel
of the Postal Service, or such other person authorized to receive
process by personal service, by Express Mail or Priority Mail, or by
First-Class Mail, Return Receipt requested. Proof of service of the
request upon the Postal Service shall be filed with the Secretary by
the person requesting the subpoena. The Secretary shall issue a notice
of the filing of proof of service and the deadline for the Postal
Service's answer to the request.
(2) Answers to the motion may be filed by the Postal Service and by
any other participant. In filing an answer, the Postal Service must
obtain from the covered person responsible for providing the
information being sought any objections that are personal to that
covered person responsible for providing the information being sought
and must provide those objections in its answer together with the
objections, if any, that the Postal Service wishes to assert on its own
behalf. Answers shall be filed as required by Sec. 3001.21 of this
chapter.
(3) Following receipt of the request and any answers to the
request, the Commissioners shall determine whether the requested
subpoena should be issued and, if so, whether any conditions should be
placed on the scope or content of the subpoena or on the responses to
the subpoena. The Commissioners may, but are not required, to entertain
further oral or written submissions before acting. A majority of the
Commissioners then holding office must concur in writing before a
subpoena may be issued.
(c) Contents of requests for subpoenas. Each motion requesting the
issuance of a subpoena shall include the following:
(1) A demonstration that the subpoena is being requested with
respect to a proceeding conducted by the Commission under title 39 of
the United States Code or that the purpose of the subpoena is to obtain
information to be used by the Commission to prepare a report under
title 39 of the United States Code;
(2) A showing of the relevance and materiality of the testimony,
documentary or other evidence being sought;
(3) Specification with particularity of any books, papers,
documents, writings, drawings, graphs, charts, photographs, sound
recordings, images, or other data or data compilations stored in any
medium from which information can be obtained, including, without
limitation, electronically stored information which is being sought
from the covered person;
(4) In situations in which a hearing has been ordered, the request
must include in addition to the information required by paragraphs
(c)(1), (2) and (3) of this section, a certification that the Postal
Service has failed to comply with an order compelling discovery
previously issued pursuant to the Commission's rules of practice; and
(5) In situations in which a hearing has not been ordered, the
request must include in addition to the information required by
paragraphs (c)(1), (2) and (3) of this section, an explanation of the
reason for the request and the purposes for which the appearance,
testimony, documentary or other evidence is being sought, and a
certification that the Postal Service has failed to comply with a
previously issued Commission order or information request.
Sec. 3005.14 Service of subpoenas.
(a) Manner of service. In addition to electronic service as
provided by Sec. 3005.12(a), subpoenas must be served by personal
service upon the General Counsel of the Postal Service or upon such
other representative of the Postal Service as is authorized to receive
process. Upon receipt of the subpoena, the Postal Service shall
transmit and deliver the subpoena to the person or contractor
responsible for providing the information being sought by the subpoena.
Service upon any such person or contractor shall be accompanied by a
written notice of the return date of the subpoena.
(b) Return of service. Proof of service upon the covered person
designated as responsible for responding to the subpoena must be filed
with the Secretary by the Postal Service within 2 business days
following service, unless a shorter period is ordered by the
Commission, and must be accompanied by certifications of:
(1) The manner, date, and time of delivery of the subpoena to the
person designated as responsible for responding to the subpoena;
(2) The name, business address, telephone number, and e-mail
address of the person designated as responsible for responding to the
subpoena; and
(3) The return date of the subpoena.
(c) Notice of service. The Secretary shall post a notice of service
upon the Commission's Web site which specifies the return date of the
subpoena.
Sec. 3005.15 Duties in responding to a subpoena.
(a) A covered person responding to a subpoena to produce documents
shall produce them as they are kept in the usual course of business or
shall organize and label them to correspond with the categories in the
subpoena.
(b) If a subpoena does not specify the form or forms for producing
electronically stored information, a covered person responding to a
subpoena must produce the information in a form or forms in which the
covered person ordinarily maintains it or in a form or forms that are
reasonably usable.
(c) A covered person responding to a subpoena need not produce the
same electronically stored information in more than one form.
(d) A covered person commanded to produce and permit inspection or
copying of designated electronically stored information, books, papers,
or documents need not appear in person at the place of production or
inspection unless commanded to appear for deposition, hearing, or
trial.
(e) A covered person who fails or refuses to disclose or provide
discovery of electronically stored information on the grounds that the
sources of such information is not reasonably accessible because of
undue burden or cost must show by clear and convincing evidence that
the burden or costs are undue.
(f) A covered person who fails or refuses to disclose or provide
discovery of information on the grounds that the information is
privileged or subject to protection as a trade secret or other
confidential research, development, or commercial information must
expressly support all such claims and shall provide a description of
the nature of the information and the potential harm that is sufficient
to enable the Commission to evaluate and determine the propriety of the
claim.
(g) Request for confidential treatment of information shall be made
in accordance with part 3007 of this chapter.
Sec. 3005.16 Enforcement of subpoenas.
In the case of contumacy or failure to obey a subpoena issued under
this subpart, the Commission may apply for
[[Page 51822]]
an order to enforce its subpoena as permitted by 39 U.S.C. 504(f)(3).
Subpart C--Depositions and Written Interrogatories
Sec. 3005.21 Authority to order depositions and responses to written
interrogatories.
The Chairman, any designated Commissioner, or any administrative
law judge may order the taking of depositions and responses to written
interrogatories by a covered person with respect to any proceeding
conducted under title 39 of the United States Code or to obtain
information to be used to prepare a report under title 39.
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BILLING CODE 7710-FW-C