[Federal Register Volume 74, Number 78 (Friday, April 24, 2009)]
[Rules and Regulations]
[Pages 18630-18634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9376]
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POSTAL SERVICE
39 CFR Part 958
Rules of Practice in Proceedings Relative to Mailing Hazardous
Materials
AGENCY: Postal Service.
ACTION: Final rule.
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SUMMARY: The Postal Accountability and Enhancement Act requires the
Postal Service to prescribe regulations for the safe transportation of
hazardous materials in the mail, and to prescribe regulations for the
conduct of
[[Page 18631]]
proceedings to determine the implementation of civil penalties, clean-
up costs and damages for violations of these hazardous materials
regulations. Accordingly, the Postal Service is adopting new rules of
practice for its Office of the Judicial Officer.
DATES: Effective Date: April 24, 2009.
FOR FURTHER INFORMATION CONTACT: Administrative Judge Gary E. Shapiro,
(703) 812-1910.
SUPPLEMENTARY INFORMATION: Title X of the Postal Accountability and
Enhancement Act, Public Law 109-435, enacted 39 U.S.C. 3018, concerning
the mailing of hazardous material. Section 3018(a) requires the Postal
Service ``to prescribe regulations for the safe transportation of
hazardous material in the mail.'' Section 3018(c) requires the Postal
Service to implement procedures for the imposition of civil penalties,
clean-up costs and damages for violations of these hazardous materials
regulations. Section 3018(d) provides that the Postal Service may
determine that a person has violated these regulations only after
notice and an opportunity for a hearing in accordance with section
3001(m) of title 39, United States Code.
To further the implementation of this statute, on January 29, 2009,
the Postal Service published for comment its proposed Rules of Practice
in Proceedings Relative to Mailing Hazardous Materials (74 FR 5137).
The time for comment on the proposed rules expired on March 2, 2009,
and no comments have been received. Accordingly, the Postal Service has
determined that it is appropriate to adopt the rules of practice as
proposed, without further revision. The Postal Service has also
determined that it is appropriate to make these rules of practice
effective upon publication, in the interest of public safety and
orderly administration of the statute.
List of Subjects in 39 CFR Part 958
Administrative practice and procedure, Penalties, Postal Service.
0
For the reasons stated in the preamble, the Postal Service adds 39 CFR
part 958 to read as follows:
PART 958--RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO CIVIL
PENALTIES, CLEAN-UP COSTS AND DAMAGES FOR VIOLATION OF HAZARDOUS
MATERIAL REGULATIONS
Sec.
958.1 Purpose.
958.2 Definitions.
958.3 Petition for hearing.
958.4 Referral of complaint.
958.5 Scope of hearing; evidentiary standard.
958.6 Notice of docketing and hearing.
958.7 Hearing location.
958.8 Rights of parties.
958.9 Responsibilities and authority of presiding officer.
958.10 Prehearing conferences.
958.11 Respondent access to information.
958.12 Depositions; interrogatories; admission of facts; production
and inspection of documents.
958.13 Sanctions.
958.14 Ex parte communications.
958.15 Post-hearing briefs.
958.16 Transcript of proceedings.
958.17 Initial decision.
958.18 Appeal of initial decision to Judicial Officer.
958.19 Form and filing of documents.
958.20 Service of notice of docketing and hearing, other documents.
958.21 Computation of time.
958.22 Continuances and extensions.
958.23 Settlement.
Authority: 39 U.S.C. 204; 39 U.S.C. 401; 39 U.S.C. 3001; 39
U.S.C. 3018.
Sec. 958.1 Purpose.
This part establishes the procedures governing the hearing and
appeal rights of any person alleged to be liable for civil penalties,
clean-up costs and/or damages for mailing hazardous materials and/or
related violations under 39 U.S.C. 3018.
Sec. 958.2 Definitions.
As used in this part:
(a) Complaint refers to the determination by the Determining
Official that an individual has violated the prohibition against
mailing hazardous materials and/or related violations under 39 U.S.C.
3018.
(b) Initial Decision refers to the written decision which the
Presiding Officer renders.
(c) Determining Official refers to the Chief Postal Inspector or
designee.
(d) Judicial Officer refers to the Judicial Officer or Acting
Judicial Officer of the United States Postal Service or designee within
the Judicial Officer Department.
(e) Party refers to the Postal Service or the respondent.
(f) Person refers to any individual, partnership, corporation,
association, or private organization.
(g) Presiding Officer refers to an Administrative Law Judge
designated by the Judicial Officer to conduct a hearing.
(h) Recorder refers to the Recorder of the Judicial Office of the
United States Postal Service, 2101 Wilson Boulevard, Suite 600,
Arlington, Virginia 22201-3078.
(i) Representative refers to an attorney or other advocate.
(j) Respondent refers to any person determined by the Determining
Official to be liable for civil penalties, clean-up costs and/or
damages for mailing hazardous materials and/or related violations under
39 U.S.C. 3018.
Sec. 958.3 Petition for hearing.
Within 30 days of being served the Postal Service's Complaint
alleging liability under 39 U.S.C. 3018, the respondent may request a
hearing by filing a written Hearing Petition with the Recorder. The
respondent's Petition must include the following:
(a) The words ``Petition for Hearing Related to Prohibitions
Regarding the Mailing of Hazardous Material'' or other words reasonably
identifying it as such;
(b) The name of the respondent as well as his or her work and home
addresses, and work and home telephone numbers; and other address and
telephone number where the respondent may be contacted about the
hearing proceedings;
(c) The date on which the respondent received the Complaint issued
by the Determining Official;
(d) A statement indicating whether the respondent requests an oral
hearing or a decision solely on the written record;
(e) If the respondent requests an oral hearing, a statement
proposing a city for the hearing site, with justification for holding
the hearing in that city, as well as recommended dates for the hearing;
and
(f) A statement admitting or denying each of the allegations of
liability made in the Complaint, and stating any defense on which the
respondent intends to rely.
Sec. 958.4 Referral of complaint.
(a) If the respondent fails to request a hearing within the
specified period, the Determining Official shall transmit the Complaint
to the Judicial Officer for referral to a Presiding Officer, who shall
issue an Initial Decision based upon the information contained in the
Complaint.
(b) If the respondent files a Hearing Petition, the Determining
Official, upon receiving a copy of the Petition, shall promptly
transmit to the Presiding Officer a copy of the Postal Service's
Complaint.
Sec. 958.5 Scope of hearing; evidentiary standard.
(a) A hearing under this part shall be conducted by the Presiding
Officer on the record:
(1) To determine whether the respondent is liable under 39 U.S.C.
3018, and
[[Page 18632]]
(2) If so, to determine the amount of any civil penalties, clean-up
costs and/or damages to be imposed.
(b) The Postal Service must prove its case against a respondent by
a preponderance of the evidence.
(c) The parties may offer for insertion onto the record such
relevant evidence as they deem appropriate and as would be admissible
under the generally accepted rules of evidence applied in the courts of
the United States in nonjury trials, subject, however, to the sound
discretion of the Presiding Officer in supervising the extent and
manner of presentation of such evidence. In general, admissibility will
hinge on relevancy and materiality. However, relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.
Sec. 958.6 Notice of docketing and hearing.
(a) Within a reasonable time after receiving the respondent's
Hearing Petition and the Complaint, the Presiding Officer shall serve
upon the respondent and the Determining Official, a Notice of Docketing
and Hearing.
(b) The Notice of Docketing and Hearing required by paragraph (a)
of this section may include:
(1) The tentative site, date, and time of the oral hearing, if one
is requested;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The nature of the hearing;
(4) The matters of fact and law to be decided;
(5) A description of the procedures governing the conduct of the
hearing; and
(6) Such other information as the Presiding Officer deems
appropriate.
Sec. 958.7 Hearing location.
An oral hearing under this part shall be held:
(a) In the judicial district of the United States in which the
respondent resides or transacts business;
(b) In the judicial district of the United States in which the
incident or incidents occurred upon which the determination of
liability under 39 U.S.C. 3018 was made by the Determining Official; or
(c) In such other place as may be determined by the Presiding
Officer.
Sec. 958.8 Rights of parties.
Subject to the sound discretion of the Presiding Officer, acting
under Sec. 958.9, parties to a hearing under this part shall have the
right:
(a) To be accompanied, represented, and advised, by an attorney or
representative of his or her own choosing;
(b) To participate in any conferences held by the Presiding
Officer;
(c) To agree to stipulations of fact or law, which shall be made
part of the record;
(d) To make opening and closing statements at the oral hearing;
(e) To present oral and documentary evidence relevant to the
issues;
(f) To submit rebuttal evidence;
(g) To conduct such cross-examination as may be required for a full
and true disclosure of the facts; and
(h) To submit written briefs, proposed findings of fact, and
proposed conclusions of law.
Sec. 958.9 Responsibilities and authority of presiding officer.
(a) The Presiding Officer shall conduct a fair and impartial
hearing, avoid unnecessary delay, maintain order, and assure that a
record of the proceeding is made.
(b) The Presiding Officer's authority includes, but is not limited
to, the following:
(1) Establishing, upon adequate notice to all parties, the date and
time of the oral hearing, if any, as well as, in accordance with Sec.
958.7, selecting the hearing site;
(2) Holding conferences, by telephone or in person, to identify or
simplify the issues, or to consider other matters that may aid in the
expeditious resolution of the proceeding;
(3) Continuing or recessing the hearing in whole or in part for a
reasonable period of time;
(4) Administering oaths and affirmations to witnesses;
(5) Ruling on all offers, motions, requests by the parties, and
other procedural matters;
(6) Issuing any notices, orders, or memoranda to the parties
concerning the proceedings;
(7) Regulating the scope and timing of discovery;
(8) Regulating the course of the hearing and the conduct of the
parties and their representatives;
(9) Examining witnesses;
(10) Receiving, ruling on, excluding, or limiting evidence in order
to assure that relevant, reliable and probative evidence is elicited on
the issues in dispute, but irrelevant, immaterial or repetitious
evidence is excluded;
(11) Deciding cases, upon motion of a party, in whole or in part by
summary judgment where there is no disputed issue of material fact;
(12) Establishing the record in the case; and
(13) Issuing a written Initial Decision containing findings of
fact, conclusions of law, and determinations with respect to whether
civil penalties, clean-up costs and/or damages for mailing hazardous
materials and/or related violations under 39 U.S.C. 3018 should be
imposed, and if so, the amounts thereof, after taking into account the
penalty considerations contained in 39 U.S.C. 3018(e).
Sec. 958.10 Prehearing conferences.
(a) At a reasonable time after issuing the Notice of Docketing and
Hearing, and with adequate notice to the parties, the Presiding Officer
may conduct, in person or by telephone, one or more prehearing
conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
(3) Stipulations or admissions of fact or as to the contents and
authenticity of documents;
(4) Limitation of the number of witnesses;
(5) Exchange of witness lists, copies of prior statements of
witnesses, and copies of hearing exhibits;
(6) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(7) Discovery;
(8) Possible changes in the scheduled oral hearing date, time or
site, if requested; and
(9) Any other matters related to the proceeding.
(b) Within a reasonable time after the completion of a prehearing
conference, the Presiding Officer shall issue an order detailing all
matters agreed upon by the parties, or ordered by the Presiding
Officer, at such conference.
Sec. 958.11 Respondent's access to information.
Except as provided in this section, after receiving the Notice of
Docketing and Hearing the respondent may review and obtain a copy of
all relevant and material documents, transcripts, records, and other
materials which relate to the determination of liability by the
Determining Official under 39 U.S.C. 3018, and all exculpatory
information in the possession of the Determining Official relating to
liability for civil penalties, clean-up costs and/or damages for
mailing hazardous materials and/or related violations under 39 U.S.C.
3018. The respondent is not entitled to review or obtain a copy of any
document, transcript, record, or other material which is privileged
under Federal law. The Presiding Officer is
[[Page 18633]]
authorized to issue orders placing limitations on the scope, method,
time and place for accessing this information, and provisions for
protecting the secrecy of confidential information or documents.
Sec. 958.12 Depositions; interrogatories; admission of facts;
production and inspection of documents.
(a) General policy and protective orders. The parties are
encouraged to engage in voluntary discovery procedures. In connection
with any discovery procedure permitted under this part, the Presiding
Officer may issue any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense. Such orders may include limitations on the scope, method, time
and place for discovery, and provisions for protecting the secrecy of
confidential information or documents. Each party shall bear its own
expenses relating to discovery.
(b) Depositions. After the issuance of a Notice of Docketing and
Hearing, the parties may mutually agree to, or the Presiding Officer
may, upon application of either party and for good cause shown, order
the taking of testimony of any person by deposition upon oral
examination or written interrogatories before any officer authorized to
administer oaths at the place of examination, for use as evidence or
for purposes of discovery. The application for an order of the
Presiding Officer under this paragraph shall specify whether the
purpose of the deposition is discovery or for use as evidence.
(1) The time, place, and manner of taking depositions shall be as
mutually agreed by the parties, or failing such agreement, governed by
order of the Presiding Officer.
(2) No testimony taken by depositions shall be considered as part
of the record in the hearing unless and until such testimony is offered
and received into evidence by order of the Presiding Officer.
Deposition testimony will not ordinarily be received in evidence if an
oral hearing is requested by either party, and the deponent is
available to testify personally at the hearing. In such instances,
however, deposition testimony may be used to contradict or impeach the
testimony of the witness given at the hearing. In cases submitted for a
decision on a written record, the Presiding Officer may, in his or her
discretion, receive deposition testimony as evidence in supplementation
of that record.
(c) Interrogatories to parties. After the issuance of a Notice of
Docketing and Hearing, a party may serve on the other party written
interrogatories. Within 30 days after service, the party served shall
answer each interrogatory separately in writing, signed under oath, or
file objections thereto. Upon timely objection by the party, the
Presiding Officer will determine the extent to which the
interrogatories will be permitted.
(d) Admission of facts. After the issuance of a Notice of Docketing
and Hearing, a party may serve upon the other party a request for the
admission of specified facts. Within 30 days after service, the party
served shall answer each requested fact or file objections thereto.
Upon timely objection by the party, the Presiding Officer will
determine the extent to which the request for admission will be
permitted. The factual propositions set out in the request shall be
deemed admitted upon the failure of a party to respond to the request
for admission.
(e) Production and inspection of documents. Upon motion of a party
showing good cause therefor, and upon notice, the Presiding Officer may
order the other party to produce and permit the inspection and copying
or photographing of any designated documents or objects, not
privileged, specifically identified, and their relevance and
materiality to the cause or causes in issue explained, which are
reasonably calculated to lead to the discovery or admissible evidence.
If the parties cannot themselves agree thereon, the Presiding Officer
shall specify just terms and conditions in making the inspection and
taking the copies and photographs.
(f) Limitations. A discovery procedure may not be used to reach
documents, transcripts, records, or other material which a person is
not entitled to review pursuant to Sec. 958.11.
Sec. 958.13 Sanctions.
(a) In general. The Presiding Officer may sanction a person,
including any party, attorney or representative, for:
(1) Failing to comply with a lawful order or prescribed procedure;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Reasonableness. Any such sanction, including but not limited to
those listed in paragraphs (c), (d), and (e) of this section, shall
reasonably relate to the severity and nature of the failure or
misconduct.
(c) Failure to comply with an order. When a party fails to comply
with an order, including an order for taking a deposition, the
production of evidence within the party's control, or a request for
admission, the Presiding Officer may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) Prohibit such party from introducing evidence concerning, or
otherwise relying upon, testimony relating to the information sought;
(3) Permit the requesting party to introduce secondary evidence
concerning the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) Failure to prosecute or defend. If a party fails to prosecute
or defend an action under this part, the Presiding Officer may dismiss
the action, or enter an order of default and an Initial Decision.
(e) Failure to file timely. The Presiding Officer may refuse to
consider any motion or other pleading, report, or response which is not
filed in a timely fashion.
Sec. 958.14 Ex parte communications.
Communications between a Presiding Officer and a party shall not be
made on any matter in issue unless on notice and opportunity for all
parties to participate. This prohibition does not apply to procedural
matters. A memorandum of any communication between the Presiding
Officer and a party shall be transmitted by the Presiding Officer to
all parties.
Sec. 958.15 Post-hearing briefs.
Post-hearing briefs and reply briefs may be submitted upon such
terms as established by the Presiding Officer at the conclusion of the
hearing.
Sec. 958.16 Transcript of proceedings.
Testimony and argument at oral hearings shall be reported verbatim,
unless the Presiding Officer orders otherwise. Transcripts or copies of
the proceedings may be obtained by the parties at such rates as may be
fixed by contract between the reporter and the Postal Service.
Sec. 958.17 Initial decision.
(a) After the conclusion of the hearing, and the receipt of briefs,
if any, from the parties, the Presiding Officer shall issue a written
Initial Decision, including his or her findings and determinations.
Such decision shall include the findings of fact and conclusions of law
which the Presiding Officer relies upon in determining whether the
respondent is liable for civil penalties, clean-up costs and/or damages
for mailing hazardous
[[Page 18634]]
materials and/or related violations under 39 U.S.C. 3018, and, if
liability is found, shall set forth the amount of any civil penalties,
clean-up costs and/or damages imposed.
(b) The Presiding Officer shall promptly send to each party a copy
of his or her Initial Decision. A party may, in accordance with Sec.
958.18, appeal an adverse Initial Decision to the Judicial Officer.
Unless a party timely appeals in accordance with Sec. 958.18, the
Presiding Officer's Initial Decision, including the findings and
determinations, becomes the final agency decision.
Sec. 958.18 Appeal of initial decision to Judicial Officer.
(a) Notice of appeal and supporting brief. A party may appeal an
adverse Initial Decision by filing, within 30 days after the Presiding
Officer issues the Initial Decision, a Notice of Appeal with the
Recorder. The Judicial Officer may extend the filing period but only if
the party files a request for an extension within the initial 30-day
period and demonstrates good cause for such extension.
(1) The Notice of Appeal must be accompanied by a written brief
specifying the party's exceptions, and any reasons for such exceptions,
to the Presiding Officer's Initial Decision.
(2) Within 30 days of receiving the party's brief, the opposing
party may file with the Judicial Officer a response to the specified
exceptions to the Presiding Officer's Initial Decision.
(b) Form of review. Review by the Judicial Officer will be based
entirely on the record and written submissions.
(1) The Judicial Officer may affirm, reduce, reverse, or remand any
determination about a penalty or assessment by the Presiding Officer.
(2) The Judicial Officer shall not consider any argument or
objection that was not raised in the hearing unless the interested
party demonstrates that the failure to raise the argument or objection
before the Presiding Officer was caused by extraordinary circumstances.
(3) If any party demonstrates to the satisfaction of the Judicial
Officer that additional evidence not presented at the hearing is
material and that there were reasonable grounds for the failure to
present such evidence, the Judicial Officer may remand the matter to
the Presiding Officer for consideration of such additional evidence.
(c) Decision of Judicial Officer. The Judicial Officer shall
promptly serve each party to the appeal with a copy of his or her
decision. The decision of the Judicial Officer constitutes final agency
action and becomes final and binding on the parties.
Sec. 958.19 Form and filing of documents.
(a) Every pleading filed in a proceeding under this part must
contain a caption setting forth the title of the action, the docket
number (after assignment by the Recorder), an accurate designation of
the document, and the name, address, and telephone number of the party
on whose behalf the paper was filed. It shall also be signed by the
party or party representative submitting the document.
(b) The original and three copies of all pleadings and documents in
a proceeding conducted under this part shall be filed with the
Recorder, Judicial Officer Department, United States Postal Service,
2101 Wilson Boulevard, Suite 600, Arlington, Virginia 22201-3078.
Normal Recorder business hours are between 8:15 a.m. and 4:45 p.m.,
eastern standard or daylight saving time. The Recorder will transmit a
copy of each document filed to the other party, and the original to the
Presiding Officer.
(c) Pleadings or other document transmittals to, or communications
with, the Postal Service, other than to the Recorder under paragraph
(a) of this section, shall be made through the Determining Official or
designated Postal Service attorney. If a notice of appearance by a
representative is filed on behalf of the respondent, pleadings or
document transmittals to, or communications with, the respondent shall
be made through his or her representative.
Sec. 958.20 Service of notice of docketing and hearing, other
documents.
Unless otherwise specified, service of a Notice of Docketing and
Hearing or any other document under this part shall be effected by
registered or certified mail, return receipt requested, or by personal
delivery. In the case of personal service, the person making service
shall, if possible, secure from the party or other person sought to be
served, or his or her agent, a written acknowledgement of receipt,
showing the date and time of such receipt. If the person upon whom
service is made declines to acknowledge receipt, the person effecting
service shall execute a statement, indicating the time, place and
manner of service, which shall constitute evidence of service.
Sec. 958.21 Computation of time.
In computing any period of time provided for by this part, or any
order issued pursuant to this part, the time begins with the day
following the act, event, or default, and includes the last day of the
period, unless it is a Saturday, Sunday, or legal holiday observed by
the Federal Government, in which event it includes the next business
day. Except as otherwise provided in these rules or an applicable
order, prescribed periods of time are measured in calendar days rather
than business days.
Sec. 958.22 Continuances and extensions.
Continuances and extensions may be granted under these rules for
good cause shown.
Sec. 958.23 Settlement.
Either party may make offers of settlement or proposals of
adjustment at any time. The Determining Official has the exclusive
authority to compromise or settle any determinations of liability for
civil penalties, clean-up costs and/or damages for mailing hazardous
materials and/or related violations under 39 U.S.C. 3018, without the
consent of the Presiding Officer or Judicial Officer.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. E9-9376 Filed 4-23-09; 8:45 am]
BILLING CODE 7710-12-P