[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Rules and Regulations]
[Pages 22190-22202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9630]
[[Page 22189]]
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Part II
Postal Regulatory Commission
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39 CFR Parts 3001 and 3005
Obtaining Information From the Postal Service; Final Rule
Federal Register / Vol. 75, No. 80 / Tuesday, April 27, 2010 / Rules
and Regulations
[[Page 22190]]
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POSTAL REGULATORY COMMISSION
39 CFR Parts 3001 and 3005
[Docket No. RM2009-12; Order No. 441]
Obtaining Information From the Postal Service
AGENCY: Postal Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Commission is adopting a final rule on procedures for
obtaining information from the Postal Service. Their adoption is
consistent with Commission obligations under a recent change in law.
DATES: Effective April 27, 2010.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6820 or [email protected].
SUPPLEMENTARY INFORMATION: Regulatory History, 74 FR 51815 (October 8,
2009).
Table of Contents
I. Introduction
II. Comments
III. Summary of Changes to Proposed Rules
IV. Discussion
V. Section-by-Section Analysis of the Rules
VI. Effective Date
VII. Ordering Paragraphs
I. Introduction
In this order, the Postal Regulatory Commission (Commission) adopts
rules governing (1) the issuance of subpoenas requiring officers,
employees, agents, or contractors of the United States Postal Service
(Covered Persons) to appear and present testimony or to produce
documentary or other evidence; (2) the enforcement of Commission
subpoenas by district courts of the United States; and (3) the issuance
of orders requiring depositions and responses to written
interrogatories by any of those same Covered Persons. These rules
implement section 602 of the Postal Accountability and Enhancement Act
(PAEA), Public Law 109-435, 120 Stat. 3198, December 20, 2006, which
amended section 504 of title 39 of the United States Code by adding a
new subsection 504(f) authorizing the issuance of subpoenas and the
taking of depositions and responses to written interrogatories by
certain persons.\1\
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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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Comments were solicited by Order No. 293.\2\ After careful
consideration of the comments submitted, the Commission is adopting the
proposed rules with several minor modifications, clarifications, and
corrections.
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\2\ Notice and Order of Proposed Rulemaking Concerning Obtaining
Information From the Postal Service, September 2, 2009 (Order No.
293).
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II. Comments
The Commission received a total of five comments and reply comments
on the proposed rules.\3\ In its comments, the Postal Service raises
essentially five issues. First, it requests that the Commission revise
proposed rule 12(c), which authorizes the summary issuance of subpoenas
without a prior opportunity to provide information voluntarily.\4\ The
suggested revision would require the Commission to make a good faith
attempt to reach the Postal Service's General Counsel (or other
authorized person) prior to invoking rule 12(c). Postal Service
Comments at 1-2.
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\3\ Comments of the Public Representative in Response to Notice
and Order Concerning Information from the Postal Service (Public
Representative Comments); United States Postal Service Comments in
Response to Order No. 293 (Postal Service Comments); Valpak Direct
Marketing Systems, Inc. and Valpak Dealers' Association, Inc.
Initial Comments on Proposed Rulemaking Concerning Obtaining
Information from the Postal Service (Valpak Comments), all filed on
November 9, 2009; Valpak Direct Marketing Systems, Inc. and Valpak
Dealers' Association, Inc. Reply Comments on Proposed Rulemaking
Concerning Obtaining Information from the Postal Service, November
23, 2009 (Valpak Reply Comments); and Reply Comments of American
Postal Workers Union, AFL-CIO, November 24, 2009 (APWU Reply
Comments). On November 25, 2009, APWU filed American Postal Workers'
Union, AFL-CIO, Motion for Late Acceptance of Reply Comments. The
motion is granted.
\4\ The Postal Service has referred to discrete sections of
proposed 39 CFR part 3005 as ``rules.'' To avoid confusion, that
convention will be followed in this order.
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Second, the Postal Service suggests two changes to the procedures
set forth in proposed rule 13 that apply to third-party requests for
subpoenas. The first change would prohibit a third party from
requesting a subpoena to enforce a Commission (as opposed to a third-
party) information request. Id. at 2-3. The second proposed change
would require third-party applicants for subpoenas to include in their
application three certifications in addition to the certification that
the Postal Service (or other subpoena target) had failed to comply with
a Commission order directing the production of information. Id. at 3-4.
Third, the Postal Service objects to the requirement in proposed
rule 14(a) that places responsibility on the Postal Service for serving
a subpoena on a third-party contractor. Id. at 4-9.
Fourth, the Postal Service challenges the requirement in proposed
rule 15(e) that the failure or refusal to produce electronically stored
information on grounds of undue burden or cost must demonstrate that
undue burden or cost by clear and convincing evidence. Id. at 9-12.
Finally, the Postal Service suggests that the Commission clarify
that proposed rule 31 will not apply to Commission proceedings.\5\ The
purpose of this clarification would be to prevent the use of ``rule
31'' as a means of circumventing the requirements contained in rule 33
of the Commission's existing rules of practice. Id. at 13-14.
Alternatively, the Postal Service requests that proposed rule 31 be
modified to include the same requirements contained in rule 33 of the
rules of practice. Id. at 14.
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\5\ As the Postal Service correctly points out, the correct
number of the proposed rule in subpart C of the proposed regulations
is ``Sec. 3005.21,'' not ``Sec. 3005.31'' as set forth in the text
of the rule. Id. at 12, n.21. The Postal Service nevertheless refers
to this rule as ``rule 31'' in its comments. Id. at 12-14. APWU also
refer to this rule as ``rule 31.'' See APWU Comments at 2. For
consistency and to avoid confusion, the Commission refers to this
rule as ``rule 31.'' The Commission is, however, correcting the
erroneous number in the final version of the rules adopted by this
order.
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In its initial comments, Valpak states that the proposed
regulations appear to conform to the Commission's statutory
authorization, but urges a clarification to the subpoena form that was
attached to Order No. 293. Valpak Comments at 2-3. Specifically, Valpak
urges the Commission to revise the subpoena form by adding a field to
identify the name of the report, if any, to which a subpoena
applies.\6\ Id. at 3. The purpose of this change would be to ``ensure
that the jurisdictional basis for each subpoena would be clarified at
the outset.'' Id. In reply comments, Valpak opposes the Postal
Service's attempt to preclude third parties from seeking subpoenas to
enforce Commission information requests. Valpak Reply Comments at 1-3.
Valpak also opposes the Postal Service's attempt to require additional
certifications in third-party subpoena requests. Id. at 3-4.
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\6\ The proposed subpoena form attached to Order No. 293
included an analogous field for specifying the Commission proceeding
to which a subpoena relates.
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APWU objects to the changes proposed by the Postal Service to rule
15 that relate to the showing of undue burden or cost required to
justify a failure or refusal to disclose or provide electronically
stored information. APWU Comments at 1-2. APWU also opposes the Postal
Service's requested clarification regarding the application of proposed
rule 31 to Commission proceedings, as well as the Postal Service's
proposed alternative to modify proposed rule 31 to conform to rule 33
of the rules of practice. Id. at 2-3.
[[Page 22191]]
The Public Representative states that the proposed rules appear to
conform to the statutory requirements of 39 U.S.C. 504, but suggests
several modifications and clarifications. Public Representative
Comments at 8-9. First, the Public Representative suggests a
modification to the provisions of proposed rule 11 that allow for the
attachment to a subpoena of conditions deemed `` `necessary and
appropriate under the circumstances presented.' '' Id. at 4-5. Second,
the Public Representative suggests that the Commission revise proposed
rule 12 to clarify the procedures or standards used to demonstrate that
the Postal Service has been given an opportunity to provide information
voluntarily (or that the Postal Service has failed to respond) before a
subpoena is issued. Id. at 5-6.
Third, the Public Representative suggests that the Commission
consider changes in the procedures under proposed rule 13 by which the
Postal Service would confirm that a Covered Person does not object to a
subpoena. The Public Representative also suggests that the Commission
consider modifications that ensure a Covered Person's right to state
his objections to a subpoena request directly to the Commission, not
through the Postal Service. Id. at 6-7.
Fourth, the Public Representative suggests that comparisons to the
Federal Rules of Civil Procedure or the adoption of analogous
provisions may, in limited instances, be of benefit to the Commission
and parties to Commission proceedings. Id. at 7.
Finally, the Public Representative states its support for the use
in an adjudicatory proceeding of proposed rule 31 as an alternative to
the procedures in part 3001 of the rules of practice for compelling
discovery. Id. at 7-8.
III. Summary of Changes to Proposed Rules
As discussed below, the Commission is making the following changes
to its proposed rules:
Rule 13 is modified to require Postal Service confirmation that
requests for subpoenas have been transmitted to third-party agents or
contractors.
Rule 14 is modified to revise the Postal Service's responsibilities
for transmitting subpoenas to Covered Persons. As modified, the Postal
Service will be responsible for transmitting subpoenas to persons
currently holding positions with the Postal Service (such as officers
and employees), to persons or entities currently acting as agents for
the Postal Service, or to persons serving as a Postal Service
contractor under an existing contract. In addition, the proposed rule
will be modified to eliminate any Postal Service responsibility for
transmitting subpoenas to former officers, employees, agents, and
contractors. Instead, the person who requested the subpoena and, in
some cases, the Commission, will be responsible for serving subpoenas
on former officers, employees, agents, and contractors.
Rule 14(b) is modified to state expressly the Commission's
authority to extend the time for filing a return of service of a
subpoena.
Rule 15(e) is revised by removing the requirement that a refusal to
produce electronically stored information must be justified by ``clear
and convincing evidence.'' Rule 15(e) is replaced by additions to rules
12 (governing summarily issued subpoenas) and 13 (governing subpoenas
requested by third parties) that require opponents of subpoenas to
state ``with particularity'' the reasons why a subpoena would be unduly
burdensome or costly.
The subpoena form is modified by adding a placeholder for ``Report
Name-If Applicable.'' The proposed form already has a placeholder for
``Case Name-If Applicable.''
Finally, the Commission redesignates rule 31 as rule 21 and
clarifies the relationship between rule 21 and existing rule 33 of the
rules of practice.
In all other respects, the Commission adopts the rules as proposed
in Order No. 293.
IV. Discussion
The final rules adopted by this order establish a new part 3005
organized in three subparts. Subpart A integrates part 3005 into the
Commission's existing rules and regulations by making various existing
rules applicable to part 3005. Subpart B establishes regulations
governing the issuance and enforcement of subpoenas under the authority
of sections 504(f)(2)(A) and 504(f)(3). Finally, subpart C implements
section 504(f)(2)(B) of title 39, which authorizes the Commission to
order depositions and responses to written interrogatories. The
regulations in both subpart B and subpart C apply to Covered Persons.
The term ``covered persons'' is defined in subsection 504(f)(4) of
title 39.
The comments filed in this proceeding address six of the proposed
rules and the subpoena form proposed as Appendix A to part 3005. Those
six proposed rules are rule 11, rule 12, rule 13, rule 14, rule 15, and
rule 31.
Rule 11(d) Conditions placed on subpoenas. The Public
Representative proposes a modification to rule 11(d) to clarify that
conditions imposed on a subpoena by the Commission are in conformity
with statutory and other applicable authorities under which the
Commission functions. Public Representative Comments at 4-5. The Public
Representative makes this proposal because she finds ambiguity in
phraseology of rule 11 as proposed. As proposed, rule 11(d) would
permit the attachment of conditions to a subpoena that are ``necessary
and appropriate under the circumstances presented.''
The Commission recognizes that any conditions attached to a
subpoena must be authorized by law and consistent with statutory
authorities under which the Commission operates. Subpoena conditions
must also reflect the specific need for information and the
circumstances in which the subpoena is issued. The Commission believes
that the requirement in rule 11(d) that subpoena conditions be
``necessary and appropriate'' implicitly includes an obligation to
attach conditions that are in conformance with the legal authorities
under which the Commission functions. The change proposed by the Public
Representative could be interpreted as a limitation on the Commission's
discretion and thereby undermine, rather than foster, the attachment of
lawful conditions. The Commission therefore finds the formulation of
rule 11(d), as proposed, to be appropriate and rejects the Public
Representative's suggested modification.
Rule 12(c) Subpoenas issued summarily by the Commission. The Postal
Service requests that rule 12 be modified to require the Commission to
make a good faith attempt to reach its General Counsel or other
appropriate person before invoking the provisions of rule 12(c) under
which a subpoena may be issued summarily without a prior opportunity to
provide information voluntarily.
The Commission does not believe that such a change is necessary or
desirable. Rule 12 addresses situations in which a subpoena can be
issued without the prior receipt of a third-party request. In other
words, the Chairman, a designated Commissioner, or an administrative
law judge appointed under 5 U.S.C. 3105 could seek authorization from
the full Commission for the issuance of a subpoena. Rule 12(b) provides
that, with a limited exception provided in rule 12(c), the Postal
Service would be given the opportunity to provide the information
voluntarily before the subpoena is issued. The exception provided in
rule 12(c) is expressly limited to situations in which ``a delay in the
issuance of the subpoena could unreasonably limit or prevent
[[Page 22192]]
production of the information being sought.''
Given the limited applicability of rule 12(c), the Commission does
not believe the modification proposed by the Postal Service is
necessary. In addition to the express limitations that rule 12 places
on its own operation, the Commission noted its expectation in the
analysis section to Order No. 293 that ``the summary issuance of a
subpoena [would] rarely, if ever, be necessary....'' Order No. 293 at
18.
Moreover, the Commission does not believe that the proposed
modification would necessarily be desirable since neither the
Commission, nor the Postal Service, can contemplate all of the possible
situations in which the summary issuance of a subpoena might be deemed
necessary. Notwithstanding its decision to reject the proposed change
to rule 12, the Commission will certainly, as a matter of comity,
consider informal notification to the Postal Service's General Counsel
or other appropriate person prior to the summary issuance of a subpoena
if such prior notification appears feasible.
The Public Representative proposes a further and slightly different
modification to rule 12 that would apply to situations in which the
Postal Service has been given an opportunity to provide information
voluntarily. Specifically, the Public Representative suggests that
clarification is needed to ``provide some standard for evidence of the
Postal Service's receipt of an opportunity to respond voluntarily as
well as evidence showing that it has failed to respond.'' Public
Representative Comments at 5-6.
The Commission is not persuaded that this clarification is
necessary. Any proposal by the Chairman, a designated Commissioner, or
an administrative law judge for the issuance of a subpoena must in all
cases be affirmatively approved by a majority of the Commissioners. See
proposed rule 11(b). Except for subpoenas issued under the authority of
rule 12(c), the Commissioners must decide that the Postal Service has
had an opportunity to provide the information voluntarily. Whether or
not such an opportunity has been provided will depend upon the specific
facts and circumstances surrounding the attempt to obtain the
information. Not all such facts and circumstances are readily
predictable. This makes the formulation of an evidentiary standard or
evidentiary requirements suggested by the Public Representative
problematic and therefore undesirable. If further experience
demonstrates the need for, and feasibility of, such clarifications, the
Commission will consider the adoption of a specific proposal.
Rule 13 Eligibility to make third-party requests for subpoenas and
contents of the request. The Postal Service seeks two changes to rule
13. First, it seeks to eliminate the right of third parties to request
subpoenas to enforce a Commission information request. Postal Service
Comments at 2-3. In support of this proposed modification, the Postal
Service argues that, as proposed, rule 13 ``allows participants to prod
the Commission as to its own information requests. Whether and how to
enforce a Commission information request is a matter between the
Commission and the Postal Service.'' Id. In the view of the Postal
Service, this ``would produce little clear benefit'' and would threaten
``to embroil participants in the Commission's exercise of
discretion....'' Id. at 3. Valpak opposes the Postal Service's
suggestion. Valpak Reply Comments at 1-3.
The Commission does not view the possibility that third parties
might seek enforcement of a Commission information request as a threat
to the exercise of its discretion. Moreover, if the Commission were to
preclude third parties from seeking subpoenas to enforce a Commission
information request, this could prompt third-party attempts to preserve
their right to request subpoenas by making duplicative requests for
information that merely track outstanding Commission information
requests. Finally, if the concerns articulated by the Postal Service
materialize, the Commission can always amend its rules to restrict the
right of third parties to seek enforcement of Commission information
requests.
As an alternative to its first proposed change, the Postal Service
proposes an amendment to rules 13(c)(4) and 13(c)(5) that would require
third-party applicants for subpoenas to provide more than a
certification that the Postal Service has failed to comply with a
Commission order. Postal Service Comments at 3-4. Specifically, the
Postal Service requests that persons requesting subpoenas be required
to include in their requests a description of the efforts of the Postal
Service (or other subpoena target) to respond; to await passage of a
specified period of time following issuance of an order or reply
deadline before requesting a subpoena; and to provide the subpoena
target's response to an inquiry from the applicant as to whether a
response would be forthcoming. Id. at 3-4. Once again, Valpak opposes
the Postal Service's suggestion. Valpak Reply Comments at 3-4.
The Commission is not persuaded that this second change should be
made. The person in the best position to describe the efforts of the
subpoena target to respond to a discovery order or information request
is the subpoena target, not the person requesting the subpoena.
Moreover, if additional time is needed to respond to a discovery order
or information request, the target of the subpoena is free to request
additional time.
Finally, the obligation to state that a response will be
forthcoming after a response deadline is an obligation of the
responding party whether or not the requesting party inquires as to the
status of the response effort. In those situations in which a formal
response deadline has not been established or in which efforts to
respond are not ``visible externally,''\7\ any person who requests a
subpoena without first checking the status of the response effort will
do so at his own peril, since subpoenas cannot be issued automatically
upon request. They require formal approval by the Commission. If the
Postal Service (or other responding party) is still engaged in a good
faith process of responding, that fact will undoubtedly be communicated
to the Commission in the responder's answer to the subpoena request
pursuant to rule 13(a)(3), and the requesting party risks that its
request will be summarily denied.
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\7\ See Postal Service Comments at 3, n.3.
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Rule 13 Responses to third-party requests for subpoenas. Proposed
rule 13 governs requests by third parties for the issuance of
subpoenas. Rule 13(a) covers situations in which hearings have been
ordered. Rule 13(b) governs situations in which hearings have not been
ordered. As proposed, both rule 13(a) and 13(b) make the Postal Service
responsible for notifying the Covered Person of the request and for
transmitting any objections it might have.
The Public Representative makes two suggestions. First, she
suggests that the Postal Service be required to provide proof that it
has notified the Covered Person of the subpoena request. Second, the
Public Representative suggests that some Covered Persons, such as
Postal Service contractors, should be given the opportunity to respond
directly to the subpoena request. Public Representative Comments at 6.
The Commission agrees with both suggestions.
With regard to the first suggestion, the Commission concludes that
it would be useful to require the Postal Service to identify the
persons to whom it has given notification of the subpoena request.
While the Commission has no
[[Page 22193]]
doubt that the Postal Service will provide such third-party
notifications, it would be useful for the Commission, the requesting
party, and other interested persons to have information regarding the
recipients of such notifications. While the requesting party may be
aware of at least one Covered Person who possesses or controls relevant
information, identification of additional persons who the Postal
Service knows or believes possess or control the information being
requested will foster the efficient operation of the proposed
regulations. To ensure that such additional sources are identified, the
Commission is revising rule 13(a)(2) to require the Postal Service to
identify such sources and provide relevant contact information. Similar
changes are being made to rule 13(b)(1).
With regard to the Public Representative's second suggestion
regarding the right of Covered Persons to respond to a subpoena
request, the Commission never intended to preclude a Covered Person
from submitting its own answer without the assistance of the Postal
Service. To eliminate any misunderstanding and to reduce administrative
burdens on the Postal Service, the Commission is modifying and
clarifying rule 13(a)(3) and rule 13(b)(2) in two ways. First, the
Commission is eliminating any Postal Service responsibility for
transmitting a Covered Person's objections to the request for subpoena.
Second, both proposed subsections of rule 13 are revised to include
Covered Persons among those who are eligible to answer a request for
subpoena. Together, these two changes will make it clear that Covered
Persons are permitted to submit their own answers to subpoena requests.
In making these changes, the Commission recognizes that the Postal
Service remains an interested party and therefore will be eligible to
file its own answer to a request for a subpoena directed to a third
party.
Rule 14 Service of subpoenas on third-party contractors. The Postal
Service objects to the proposed requirement in rule 14(a) that it
transmit and deliver Commission subpoenas to contractors or agents
outside the Postal Service.\8\ Id. at 4-9. It argues that the proposed
procedure appears to be unnecessary, is without precedent, and raises
potentially serious constitutional issues. Id. The Postal Service also
explains that because of the complexities involved in serving foreign
entities, it may not be possible to file a return of service within 2
days of a subpoena's issuance. Id. at 8.
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\8\ The Postal Service also seems to interpret the proposed
rules as imposing an obligation on the Postal Service regarding the
Covered Person's ``responsiveness'' to the subpoena. Postal Service
Comments at 5. However, the proposed rules already make clear that
compliance with a subpoena is the responsibility of the Covered
Person. See proposed rule 15. Accordingly, the Commission need not
address the Postal Service's request that the Commission provide in
its rules that the Postal Service has no liability for responses to
a subpoena by an entity having only a contractual relationship with
the Postal Service. See id. at 9.
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Section 504(f)(2)(A) grants the authority ``to issue subpoenas
requiring the attendance and presentation of testimony by, or the
production of documentary or other evidence in the possession of, any
covered person....'' [emphasis added]. A ``covered person'' is ``an
officer, employee, agent, or contractor of the Postal Service.''
Section 504(f)(4).
As formulated, section 504(f) does not authorize the issuance of
subpoenas to the Postal Service itself, but to officers, employees,
agents, and contractors of the Postal Service. Information sought from
a Covered Person must be related to a proceeding or request related to
the Postal Service.\9\ Given the Postal Service's obvious interest in
attempts to subpoena information from its officers, employees, agents,
and contractors, the Commission has provided in rule 14 that subpoenas
be served upon the Postal Service and its General Counsel and other
representatives authorized to receive legal process regardless of which
officer, employee, agent, or contractor is the ultimate target of the
subpoena.\10\
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\9\ Section 504(f)(2) authorizes the issuance of subpoenas
``with respect to any proceeding conducted by the Commission under
this title [i.e., title 39] or to obtain information to be used to
prepare a report under this title [i.e., title 39]....''
\10\ For that same reason, the Commission has authorized the
Postal Service to address subpoenas and subpoena requests regardless
of which Covered Person is the target of the subpoena. See rules 12
and 13.
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The Postal Service objects to its obligation to transmit a subpoena
on five grounds. First, the Postal Service argues that the Commission
is equally capable of knowing which of the Covered Persons is likely to
have possession of the information being sought. Second, it argues that
it ``cannot be accountable for independent third parties' behavior or
responsiveness with respect to their own proprietary information.''
Postal Service Comments at 5. Third, it argues that service on an
entity through an independent third party (in this case, the Postal
Service) can implicate an entity's due process rights. Id. at 6.
Fourth, the Postal Service asserts that it is unaware of any Federal or
administrative procedures that permit substituted service of subpoenas.
Id. Finally, it argues that Congress has not indicated its intent to
have the Postal Service play a role in the service of Commission
subpoenas. Id. 6-7.
Contrary to the Postal Service's first contention, the Commission
may not necessarily be able to ascertain the identity of Covered
Persons in possession of relevant information at the time a subpoena is
issued. For example, when the Postal Service is provided an opportunity
under rule 12 to produce information voluntarily, a subpoena could be
issued without the identity of the appropriate Covered Person or
Covered Persons being known to the Commission.\11\ The Commission's
inability to identify appropriate Covered Persons could also occur
because of a Postal Service refusal voluntarily to provide both the
requested information and the identities of the Covered Persons in
possession of the information. Rule 14 would address such a situation
by requiring the Postal Service to transmit the subpoena to each
Covered Person needed to obtain the information. Without rule 14's
provisions for transmitting subpoenas to the relevant Covered Persons,
the Commission might first have to issue one or more subpoenas just to
ascertain the identity of the relevant Covered Persons.\12\
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\11\ Such a situation could also arise in cases under rule 12(c)
in which it is not possible to provide the Postal Service with an
opportunity to produce information voluntarily before resorting to
the issuance of a subpoena.
\12\ The problem of identifying Covered Persons would not be
presented in Federal district courts. Fed. R. Civ. P. rule 26(a)
requires, inter alia, that parties must, without awaiting a
discovery request, provide the names, addresses, and phone numbers
of individuals likely to have discoverable information. The
Commission's current rules of practice contain no such requirement.
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The Postal Service's second argument is that it should not be held
accountable for the response of a third party, such as a Postal Service
agent or contractor, to a Commission subpoena that might seek
information that is arguably proprietary. This concern is misplaced.
The proposed rules already make clear that compliance with a subpoena
is the responsibility of the Covered Person. See rule 15. In that
connection, the Commission would point out that claims for confidential
treatment can be made by any Covered Person. See proposed rule 15(f).
Accordingly, it is unnecessary for the Commission to address the Postal
Service's request that the Commission provide in its rules that the
Postal Service has no liability for responses to a subpoena by an
entity having only a contractual relationship with the Postal Service.
See Postal Service Comments at 9.
[[Page 22194]]
As its third argument, the Postal Service asserts that transmission
of a subpoena by the Postal Service to a Covered Person could violate
the Covered Person's due process rights.\13\ Id. at 6. The Commission
is not persuaded by this argument. In the first place, the cases cited
by the Postal Service all involve some type of substituted,
alternative, or constructive service which either did not, or might
not, result in notice actually being given to the intended recipient of
process.\14\ Without notice of process, the intended recipient of
process would be denied the opportunity to be heard, which, as the
Postal Service recognizes, is `` `the essential element of due process
of law....' '' Postal Service Comments at 6 citing Jacob, 223 U.S. at
265-66. By contrast, under the provisions of rule 14, the Postal
Service would actually transmit the Commission subpoena to the Covered
Person and the Covered Person would be able to respond directly to the
Commission.
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\13\ The Postal Service's argument addresses situations in which
the Covered Person to whom the subpoena is directed is a Postal
Service agent or contractor. The Postal Service makes no due process
objection to the Commission's proposal that subpoenas be transmitted
by the Postal Service to its officers and employees. It therefore
appears that the Postal Service sees no due process problem with
transmission of a subpoena by the Postal Service to one of its
officers or employees. The basis for this distinction is not
provided.
\14\ E.g., Jacob v. Roberts 223 U.S. 261 (1912) (service by
publication); Mulhane v. Central Hanover Bank & Trust Co., 339 U.S.
306 (1950) (service by publication); and Calabro v. Leiner, 464
F.Supp.2d 470 (E.D. Pa. 2006) (alternative service). It should be
noted that some of the very cases cited by the Postal Service upheld
the constitutionality of substituted or alternative service. See
Jacob, 223 U.S. at 267; and Mulhane, 339 U.S. at 318.
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Historically, judicial subpoenas required personal service by an
officer of the court, such as a marshal or deputy marshal.\15\ Over
time, these service requirements have been relaxed by a number of
courts. Id. at 399-400. In the view of these courts, it is the delivery
of the subpoena and actual notice of what is being demanded of the
person being subpoenaed that is the touchstone of due process and the
obligation to respond. From the standpoint of due process, there
appears to be nothing unusual about personal service by an officer of
the court.\16\
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\15\ 9A Charles Alan Wright and Arthur R. Miller, Federal
Practice and Procedure, Sec. 2454 at 397 (Civil 3d. 2002 and Supp.
2008) (Wright and Miller).
\16\ Indeed, at least one Federal court has noted that even
under Fed. R. Civ. P. rule 45, there is no specific requirement for
personal service of a subpoena. All that the rule requires is
``delivery'' to the person being served. Ultradent Prods., Inc. v.
Hayman, D.C.N.Y. 2002, 2002 WL 31119425, *3 (Patterson, J.). as
cited in Wright and Miller, Sec. 2454, n.10.
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The fourth ground for opposing rule 14's service mechanism is that
the Commission has failed to identify any other Federal or
administrative precedent that supports substituted service of a
subpoena. The short answer to this contention is, as noted above, that
the Commission's proposed mechanism for service does not constitute
substituted service. Whereas substituted service typically involves
delivery to a person's place of work when the person is not present,
delivery to an address by certified or registered mail, or posting of a
notice in a public place, and publication in a newspaper,\17\ the
Commission's proposed rule 14 provides for transmission of a subpoena
by the Postal Service to the particular person responsible for
responding. This is actual service, not substituted service. Adoption
of the proposed mechanism in rule 14 does not depend upon a
justification for substituted service.
---------------------------------------------------------------------------
\17\ See 62B Am. Jur.2d Process Sec. 143.
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Finally, the Postal Service argues that Congress has not expressed
an intent that the Postal Service play a role in the service of
Commission subpoenas. The Commission agrees. But neither does section
504(f) prohibit the Commission's proposed method of service. In light
of the more recent judicial developments identified above and in
further view of the absence of specific congressional direction
regarding the manner in which Commission subpoenas must be served, the
Commission continues to believe that its proposed method for serving
subpoenas on outside Postal Service contractors and agents implements
section 504(b) reasonably and effectively. This is particularly true
when the Postal Service has an agency or contractual relationship with
the Covered Person at the time the subpoena is issued. In such cases,
the requirement that the Postal Service transmit the subpoena to its
agent or contractor is similar to transmission by the Postal Service of
a subpoena to one of its own officers or employees. Because of its
existing relationships with agents and contractors, the Postal Service
is in the best position to accomplish transmission of the subpoena to
an agent or contractor.
Without the requirement that the Postal Service transmit the
subpoena to its agent or contractor, more formal and potentially time
consuming methods would be required.\18\ If, for some unexpected
reason, the Postal Service is unable to locate or transmit the subpoena
to the appropriate recipient, it can so advise the Commission and an
alternate and more traditional means of service can be employed.
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\18\ In some cases, this could require the Commission to involve
the assistance of a United States Attorney or the Justice Department
in serving the subpoena. There appears to be no need for such
additional complexity given that the agency or contractor
relationship will be an existing relationship and the fact that the
agent or contractor will be able to assert any objections or claims
of privilege or confidentiality directly to the Commission. See
rules 12 and 13.
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By contrast, if, at the time a subpoena is issued, the Postal
Service no longer has an agency or contractual relationship with the
third-party agent or contractor, it may no longer be in any better
position to transmit the subpoena than the third party who requested
the subpoena or the Commission itself. Accordingly, the Commission is
revising proposed rule 14 to eliminate the requirement that the Postal
Service transmit a subpoena to a former agent or contractor. Service on
such Covered Persons will be the responsibility of either the third
party who requested the subpoena or the Commission.
While the service requirements for outside Covered Persons, such as
former Postal Service agents or contractors, will be modified, the
Commission expects the Postal Service to provide subpoenaed information
to which the Postal Service has contractual or other proprietary rights
whether or not such information is in the physical possession of the
Postal Service at the time a subpoena is issued. It is the Commission's
understanding that the Postal Service does not oppose that position.
See Postal Service Comments at 7, n.13. Similarly, the Commission
expects the Postal Service to provide all relevant subpoenaed
information that is under its physical control at the time a subpoena
is issued, even if that information is information of an outside
Covered Person, such as a Postal Service contractor.\19\
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\19\ The third-party contractor would, of course, have the
opportunity to oppose production of such information, either by
opposing a third-party request for a subpoena made under rule 13 or
by filing a motion to quash a subpoena that is issued summarily
under rule 12.
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Rule 15(e) Standard for opposing production of electronically
stored information. The Postal Service expresses concern that the
formulation of proposed rule 15(e) establishes a ``high bar to cost-
based objections...[that] would lead to severe imbalances between the
probative value of requested information and the cost inflicted on the
Postal Service.'' Id. at 9. As an alternative, the Postal Service
requests the Commission to adopt a standard akin to Fed R. Civ. P. rule
26(b)(2)(C). Id. at 12. Fed. R. Civ. P. rule 26 provides general
provisions for discovery in Federal district courts and is expressly
referred to in Fed. R. Civ. P. rule 45(d), the rule that sets forth
duties in responding to judicial
[[Page 22195]]
subpoenas. APWU opposes the Postal Service's request and urges the
Commission to adopt rule 15(e) as proposed. APWU Comments at 1-2.
The concern expressed by the Postal Service focuses primarily on
the requirement in proposed rule 15(e) that to justify the failure or
refusal to provide discovery of electronically stored information, the
Postal Service (or other Covered Person) must show ``by clear and
convincing evidence'' that the burden or cost of production is undue.
See Postal Service Comments at 10-11. The Postal Service argues that a
more appropriate standard would be a ``preponderance of the evidence.''
Id. Implicit in the Postal Service's argument is also an assumption
that a determination of whether a burden or cost was ``undue'' would
not involve a balancing of competing considerations (such as the cost
of producing the requested information, the importance of the issues,
and the importance of the requested discovery in resolving the issues),
as would occur in Federal district court under Fed. R. Civ. P. rule
26(b)(2)(C).\20\ APWU responds by pointing out that proposed rule 11,
which makes provision for attaching conditions to a subpoena, should
provide adequate protection to the Postal Service. APWU Comments at 2.
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\20\ The Commission would note that its rules of practice, which
are applicable to the subpoena process by rule 1(b), do not
currently contain a rule analogous to Fed. R. Civ. P. rule 26. The
Commission has, however, from time to time relied on the principles
embodied in Fed. R. Civ. P. rule 26. See, e.g., Order No. 381,
Docket No. C2009-1, Order Affirming Presiding Officer's Ruling
C2009-1/12, January 7, 2010, at 11-12. In the current context, the
Postal Service's reference to Fed. R. Civ. P. rule 26(b)(2)(C) is
appropriate.
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In proposing rule 15(e), the Commission was not attempting to
require the production of information without regard to cost, burden,
or consideration of other relevant factors of the type discussed by the
Postal Service. What the Commission was attempting to make clear was
that it would not accept vague and unsubstantiated claims of burden or
cost as justification for failing or refusing to provide necessary
information. Indeed, cost and other relevant factors should be given
due consideration in the process of considering the attachment of
conditions to a subpoena, as APWU suggests.
Upon consideration of the points presented by the Postal Service
and APWU, the Commission concludes that the appropriate context for
resolving claims of burden, cost, and protective conditions is before
the Covered Person responds to a subpoena. Accordingly, the Commission
is removing subsection (e) from proposed rule 15 and is modifying
proposed rules 12 and 13 as described below.
Proposed rule 12 covers situations in which subpoenas are issued
without a third-party request. Subsection (d) of that rule will be
modified by requiring that motions to quash, limit, or condition a
subpoena that allege undue burden or cost must state with particularity
the basis for such a claim.\21\ Similar requirements will be added to
proposed rules 13(a)(3) and 13(b)(2). Those latter subsections provide
for answers to third-party requests for subpoenas. By requiring the
issues of undue burden and cost be addressed prior to the compliance
stage, participants (including the Postal Service and Covered Persons)
will be able to address all relevant factors that relate to alleged
costs and burdens in a more timely manner that will hopefully foster
compliance. As APWU suggests, applicable conditions, if any, can be
attached prior to issuance of the subpoena.
Rule 31 \22\ Deposition orders. As enacted, 39 U.S.C. 504(f)(2)(B)
authorizes the Chairman of the Commission, any Commissioner designated
by the Chairman, and any administrative law judge appointed by the
Commission under 5 U.S.C. 3105 to order the taking of depositions and
responses to written interrogatories by a Covered Person. Proposed rule
31 closely follows the text of section 504(f)(2)(B).
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\21\ The requirement that the showing of undue burden or cost be
made ``with particularity'' avoids unintended implications of the
``clear and convincing evidence'' standard. The requirement of a
showing ``with particularity'' is also consistent with the
Commission's existing rules of practice. See 39 CFR 3001.26,
3001.27, and 3001.28.
\22\ See n.5, supra.
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The Postal Service acknowledges that, as proposed, rule 31 directly
tracks the provisions of section 504(f)(2)(B). Postal Service Comments
at 12. However, it is concerned that, without clarification, rule 31
could be used to circumvent certain restrictions contained in rule 33
of the Commission's existing rules of practice. That latter rule is
limited in its application to Commission proceedings. Id. at 13.
The Postal Service proposes that the Commission clarify that
parties who seek information or testimony that they believe would be
useful in Commission proceedings should pursue discovery under the
rules of practice (which would include rule 33 of the rules of
practice), not proposed rule 31 that is being adopted pursuant to
section 504(f)(2)(B). Id. at 13-14. Alternatively, the Postal Service
requests that the Commission clarify that proposed rule 31 is subject
to the same conditions applicable to discovery under rule 33 of the
rules of practice.
APWU opposes the Postal Service's suggested clarifications. APWU
Comments at 2-3. The Public Representative agrees with the Commission's
statement in Order No. 293 that the authority embodied by proposed rule
31 ``can be used within the scope of an adjudicatory hearing as an
alternative to the procedures in part 3001 [the Commission's rules of
practice] for compelling discovery.'' Public Representative Comments at
8.
In light of these divergent views, clarification is in order. It is
useful, first, to summarize the background against which the rule is
being proposed. The Commission's rules of practice apply to proceedings
before the Commission. See 39 CFR 3001.3. In those proceedings,
participants have the opportunity to propound written interrogatories
to other participants or to request the Commission for authorization to
take the deposition of a witness. See 39 CFR 3001.26 and 3001.33.
Historically, a refusal to respond to a written interrogatory or to
appear at a deposition presented a serious problem for the Commission.
Although rule 26(g) provided for the issuance of orders compelling
responses to written interrogatories, there were, on occasion,
situations in which the Postal Service refused to comply with such an
order. See Order No. 293 at 4, n.3. Rule 33 governing depositions
presented a similar problem in that the rule did not include provision
for compelling appearance for a deposition.
Against this background, Congress enacted section 504(f)(2)(B).
This new section provides the authority for ordering the taking of
depositions and responses to written interrogatories by a Covered
Person. Thus, in a proceeding in which the Commission has authorized a
deposition in response to an application made pursuant to rule 33 of
the rules of practice, the Commission can, by virtue of section
504(f)(2)(B) and proposed rule 31, compel a Covered Person to appear
for the deposition. Similarly, in a Commission proceeding, the
Commission can compel a Covered Person to respond to written
interrogatories propounded under rule 26 of the rules of practice.
In addition, the authority provided by section 504(f)(2)(B) and
proposed rule 31 empowers the Chairman, a Commissioner designated by
the Chairman, or an administrative law judge appointed under 5 U.S.C.
3105, sua sponte, to order depositions and responses to written
interrogatories,
[[Page 22196]]
even if no participant in a Commission proceeding has requested such a
deposition or propounded such a written interrogatory.
Such depositions and responses can also be ordered sua sponte when
no proceeding is pending. Section 504(f)(2)(B) authorizes the Chairman,
a Designated Commissioner, or an administrative law judge to order
depositions and responses to written interrogatories in order to obtain
information to be used to prepare reports under title 39. This
authority also goes beyond the scope of a Commission proceeding.
From the Commission's perspective, proposed rule 31 is a mechanism
for enforcing discovery in Commission proceedings and for pursuing, sua
sponte, discovery and information needed to prepare reports by means of
either depositions or written interrogatories.
It was with the foregoing situations in mind that the Commission
stated in Order No. 293 that ``the authority to issue orders under
section 504(f)(2)(B) can...be exercised in the context of an
adjudicatory hearing as an alternative to the procedures in part 3001
for compelling discovery...[and that an] order can also be issued under
section 504(f)(2)(B) outside the context of a Commission proceeding.''
Id. at 16.
Appendix A to part 3005--Subpoena form. Valpak proposes that the
subpoena form attached as Appendix A to Order No. 293 be revised to add
a field to specify a report for which information is sought. Valpak
Comments at 2-3. Valpak makes this suggestion to ``ensure that the
jurisdictional basis for each subpoena would be clarified at the
outset'' and, presumably, to guard against the unauthorized use of the
Commission's subpoena power. Id. at 3.
The Commission accepts Valpak's suggested modification to the
subpoena form. Whether or not the Commission has the authority to issue
specific subpoenas will depend upon the facts and circumstances
surrounding the issuance of those subpoenas and upon their formulations
and purposes. Additional relevant information on the subpoena form may
eliminate confusion and reduce controversy.
V. Section-By-Section Analysis of the Rule
Section 3001.3 Scope of rules. The amendment to rule 3 of the rules
of practice clarifies 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 39 CFR part 3007; and identifies the rule
that establishes the service requirements for a subpoena. A proposed
subpoena form 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 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).
In the vast majority of circumstances, Covered Persons 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 recipient of
the subpoena and other interested persons, 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.
Motions alleging undue burden or cost would be required to state with
particularity the basis for any such claim. Pending resolution of the
motion, 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 part 3001 of the Commission's 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.
The rule has been revised to require the Postal Service to provide
the name, business address and phone number of any persons to whom the
Postal Service transmits the subpoena request.
[[Page 22197]]
Covered Persons expected to produce the requested information will
have an opportunity to present any objections to the issuance of a
subpoena. All objections, including allegations of undue burden or
cost, must state with particularity the basis for such claims.
Section 3005.14 Service of subpoenas. This proposed rule specifies
the manner in which subpoenas are to be served. The Commission
originally proposed that subpoenas be served initially upon the Postal
Service with the requirement that the Postal Service transmit and
deliver the subpoena to the officer, employee, agent, or contractor
ultimately responsible for testifying or for otherwise providing the
information being sought. The Commission has retained that procedure
when information is sought from existing Postal Service officers,
employees, and from those agents and contractors having an agency or
contractual relationship at the time the subpoena is issued. However,
the Commission has revised the service requirements to provide for
personal service by the Commission (or by third parties who requested
the subpoena) upon former Postal Service officers, employees, agents,
or contractors. Conforming changes have been made to the provisions
governing proof of service upon the Postal Service and Covered Persons
and proof of transmission by the Postal Service to Covered Persons.
Changes have also been made to provide for shorter or longer return
periods as may be ordered by the Commission in specific cases. The
provision for longer return of service periods has been made, in part,
to accommodate longer periods that may be needed to accomplish service
upon foreign persons or entities. Finally, revisions have been made to
the provisions of notice to the public of service, proof of
transmission, and 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. Removed from the final rule is proposed Sec. 3005.15(e).
That section had required that claims of undue burden or cost made to
support a failure or refusal to produce electronically stored
information be supported by clear and convincing evidence. In place of
that section, modifications have been made to Sec. Sec. 3005.12(d),
3005.13(a)(3), and 3005.13(b)(2). Those latter modifications require
that any claim of undue burden or cost made in motions to quash, limit,
or condition a subpoena, or in answers in opposition to requests for
subpoenas must be supported by a particularized showing of the basis
for such claims.
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. Effective Date
Generally, a rule becomes effective not less than 30 days after
publication in the Federal Register. 5 U.S.C. 553(d). A rule may become
effective sooner if it is an interpretative rule, a statement of
policy, or if the agency finds good cause to make it effective sooner.
Id. Since the rules promulgated by this order are being adopted after
public notice and opportunity for comment, procedures that are not
statutorily required for the adoption of procedural rules, the
Commission finds that good cause exists to make the rules promulgated
by this order effective upon their publication in the Federal Register.
VII. Ordering Paragraphs
It is ordered:
1. The Commission hereby adopts the final rules for obtaining
information from the Postal Service that follow the Secretary's
signature as part of 39 CFR part 3005.
2. The Commission hereby adopts conforming rule changes to 39 CFR
part 3001 that follow the Secretary's signature.
3. These rules shall take effect upon publication of this order in
the Federal Register.
4. The Secretary shall arrange for publication of this order 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 amends chapter III of title 39 of the Code of Federal
Regulations as follows:
Part 3001-RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 3001 is revised to read as follows:
Authority: 39 U.S.C. 404(d); 503; 504; 3661.
0
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.
0
3. Add part 3005 to read as follows:
PART 3005--PROCEDURES FOR COMPELLING PRODUCTION OF INFORMATION BY
THE POSTAL SERVICE
Subpart A-General
Sec.
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 Subpoenas 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.
[[Page 22198]]
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: 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 that title.
(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
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 covered person 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). Such motion shall include any
objections to the subpoena that are personal to the covered person
responsible for providing the information being sought. Motions
alleging undue burden or cost must state with particularity the basis
for such claims. Answers to the motion may be filed by any interested
person pursuant to Sec. 3001.21(b) of this chapter. Pending the
resolution of any such motion, the covered person shall secure and
maintain the requested information.
Sec. 3005.13 Subpoenas 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 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 and shall provide the person requesting the
subpoena with the name, business address and business phone number of
the persons to whom the request has been transmitted.
(3) Answers to the motion may be filed by the Postal Service, by
any person to whom the Postal Service has transmitted the request, and
by any other participant. Answers raising objections, including
allegations of undue burden or cost, must state with particularity the
basis for such claims. Answers shall be filed as required by Sec.
3001.21(b) of this chapter.
(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
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
[[Page 22199]]
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. The Postal Service shall
transmit a copy of the request to any covered person that it deems
likely to be affected by the request and shall provide the person
requesting the subpoena with the name, business address and business
phone number of the persons to whom the request has been transmitted.
Proof of service of the request 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 filing answers
to the request.
(2) Answers to the motion may be filed by the Postal Service, by
any person to whom the Postal Service has transmitted the request, and
by any other person. Answers raising objections, including allegations
of undue burden or cost, must state with particularity the basis for
such claims. Answers shall be filed as required by Sec. 3001.21(b) 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 covered
person 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. (1) Existing Postal Service officers and
employees. In addition to electronic service as provided by Sec.
3001.12(a) of this chapter, subpoenas directed to existing Postal
Service officers and employees 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, the subpoena shall be transmitted and delivered
by the Postal Service to the existing officers and employees
responsible for providing the information being sought by the subpoena.
Subpoenas served upon the Postal Service and transmitted to Postal
Service officers and employees shall be accompanied by a written notice
of the return date of the subpoena.
(2) Existing Postal Service agents and contractors. In addition to
electronic service as provided by Sec. 3001.12(a) of this chapter,
subpoenas directed to existing Postal Service agents and contractors
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, the subpoena shall
be transmitted and delivered by the Postal Service to existing agents
and contractors responsible for providing the information being sought
by the subpoena. Service upon such agents and contractors shall be
accompanied by a written notice of the return date of the subpoena.
(3) Prior Postal Service officers, employees, agents, and
contractors. Subpoenas directed to Postal Service officers, employees,
agents, and contractors who, at the time the subpoena is issued, are no
longer officers or employees of the Postal Service or are no longer
agents or contractors in an existing agency or contract relationship
with the Postal Service, must be served by personal service. Service
upon such officers, employees, agents, or contractors shall be
accompanied by a written notice of the return date of the subpoena.
(4) Service arrangements. Arrangements for service upon the Postal
Service under Sec. Sec. 3001.14(a)(1) or 14(a)(2) of this chapter or
upon former Postal Service officers, employees, agents, or contractors
under Sec. 3001.14(a)(3) of this chapter shall be arranged either by
the Commission or by the third party who requested issuance of the
subpoena.
(b) Return of service and proof of transmission. (1) Return of
service. Proof of service under Sec. 3001.14(a) of this chapter must
be filed with the Secretary within 2 business days following service,
unless a shorter or longer period is ordered by the Commission, and
must be accompanied by certifications of:
(i) The manner, date, and time of delivery of the subpoena;
(ii) The name, business address, telephone number, and e-mail
address of the perseon upon whom the subpoena was served; and
(iii) The return date of the subpoena.
(2) Proof of transmission. The Postal Service shall within 2
business days of transmission of a subpoena by the Postal Service to an
existing Postal Service officer, employee, agent, or contractor
pursuant to Sec. Sec. 3001.14(a)(i) or (ii) of this chapter, or such
shorter or longer period ordered by the Commission, file with the
Secretary a certification of:
(i) The manner, date, and time of delivery of the subpoena;
(ii) The name, business address, telephone number, and e-mail
address of the person to whom the subpoena was transmitted; and
(iii) The return date of the subpoena.
(c) Notice of service, proof of transmission, and return date. The
Secretary shall post a notice of service and proof of transmission upon
the Commission's Web site which specifies the return date of the
subpoena.
[[Page 22200]]
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 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.
(f) 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 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 that title.
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Appendix A to Part 3005--Subpoena Form
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[GRAPHIC] [TIFF OMITTED] TR27AP10.001
[FR Doc. 2010-9630 Filed 4-26-10; 8:45 am]
BILLING CODE 7710-FW-C