Proposed Rule2021-14636
Public Inquiry
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 9, 2021
Issuing agencies
Postal Regulatory Commission
Abstract
The Commission seeks further input from the public about what regulations promulgated by the Commission may be necessary to carry out the requirements of agency law. This document informs the public of this proceeding, invites public comment, and takes other administrative steps.
Full Text
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<title>Federal Register, Volume 86 Issue 129 (Friday, July 9, 2021)</title>
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[Federal Register Volume 86, Number 129 (Friday, July 9, 2021)]
[Proposed Rules]
[Pages 36246-36248]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-14636]
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POSTAL REGULATORY COMMISSION
39 CFR Chapter III
[Docket No. PI2021-2; Order No. 5930]
Public Inquiry
AGENCY: Postal Regulatory Commission.
ACTION: Advanced notice of proposed rulemaking.
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SUMMARY: The Commission seeks further input from the public about what
regulations promulgated by the Commission may be necessary to carry out
the requirements of agency law. This document informs the public of
this proceeding, invites public comment, and takes other administrative
steps.
DATES: Comments are due: August 26, 2021.
ADDRESSES: Submit comments electronically via the Commission's Filing
Online system at <a href="http://www.prc.gov">http://www.prc.gov</a>. Those who cannot submit comments
electronically should contact the person identified in the FOR FURTHER
INFORMATION CONTACT section by telephone for advice on filing
alternatives.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background
III. Discussion
IV. Comments
V. Ordering Paragraphs
I. Introduction
In this docket, the Commission seeks further input from the public
about what regulations promulgated by the Commission may be necessary
to carry out the requirements of 39 U.S.C. 601. Section 601 describes
instances when letters may be carried out of the mail, or when the
letter monopoly does not apply to a mailpiece. In particular, the
Commission seeks to determine whether regulations promulgated by the
Commission are needed to carry out those statutory exemptions.
II. Background
The Postal Service has exclusive rights in the carriage and
delivery of letters under certain circumstances. This letter monopoly
is codified in the Private Express Statutes (PES), which are a group of
civil and criminal statutes that make it unlawful for any entity other
than the Postal Service to send or carry letters. See 18 U.S.C. 1693-
1699; 39 U.S.C. 601-606.\1\
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\1\ Although these provisions of the U.S. Code are customarily
referred to collectively as the ``Private Express Statutes,'' they
do not all relate to private expresses or prohibit carriage of
letters out of the mails.
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Section 601 provides specific instances (exceptions) where letters
may be carried out of the mail (i.e., not subject to the letter
monopoly). Section 601(a) sets forth the conditions under which a
letter may be carried out of the mail, which include requiring that the
letter be enclosed in an envelope, that the proper amount of postage is
affixed to the envelope, and that the postage is canceled. 39 U.S.C.
601(a).
Section 601(b) provides additional exceptions such that the letter
monopoly does not apply to letters charged more than six times the
current rate for the first ounce of a Single-Piece First Class Letter
or to letters weighing more than 12.5 ounces. See 39 U.S.C. 601(b)(1),
(b)(2). The ``grandfather clause'' in Section 601(b)(3) references
exceptions from prior Postal Service regulations that permitted private
carriage as in effect on July 1, 2005. 39 U.S.C. 601(b)(3); see also 39
CFR 310.1 and 39 CFR 320.2-320.8 (2005).
Section 601(c), which is the subject of this proceeding, directs
the Commission (rather than the Postal Service) to promulgate any
regulations necessary to carry out this section. 39 U.S.C. 601(c). This
Public Inquiry seeks to answer how the Commission shall meet this
statutory requirement.
Prior to the Postal Accountability and Enhancement Act (PAEA) of
2006, the Postal Service issued regulations that purported to suspend
the PES.\2\ The PAEA included the term ``purport'' to describe the
Postal Service's efforts to suspend the PES, reflecting some
disagreement between the Postal Service and policymakers about the
Postal Service's authority to promulgate such regulations prior to the
PAEA.\3\ Post-PAEA, the law clearly cedes such authority to the
Commission. These regulations defined the term ``letter'' as ``a
message directed to a specific person or address and recorded in or on
a tangible object,'' subject to several provisions. 39 CFR 310.1(a)
(2005). The regulations also described several statutory exceptions to
the letter monopoly, such as when the letter accompanies and relates to
cargo or when a special messenger is used. See 39 CFR 310.3 (2005). In
addition, the
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regulations purported to establish administrative suspensions of the
PES (39 CFR 310.1(a)(7) n.1, 320 (2005)), including suspensions for
certain data processing materials or for extremely urgent letters. See
39 CFR 320.2, 320.6 (2005).
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\2\ See Postal Accountability and Enhancement Act, Public Law
109-435, 120 Stat. 3198 (2006); see also 39 CFR 310, 320 (2005).
\3\ See H.R. Rep. No. 109-66, 109th Cong., 1st Sess., pt. 1, at
58 (2005) (H.R. Rep. No. 109-66).
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These regulations were originally promulgated by the Postal Service
in 1974 and were amended several times prior to enactment of the
PAEA.\4\ In 2003, the President's Commission on the United States
Postal Service recommended that the scope of the letter monopoly should
be clarified and periodically reviewed by a Postal Regulatory Board.\5\
In 2006, Congress passed the PAEA, which, inter alia, added new price
and weight limits to the postal monopoly, repealed the Postal Service's
purported authority to adopt administrative suspension of the monopoly,
and repealed the Postal Service's authority to implement provisions of
the criminal code defining the scope of the monopoly.\6\
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\4\ See Comprehensive Standards for Permissible Private
Carriage, 39 FR 33211 (Sept. 16, 1974).
\5\ Report of the President's Commission on the United States
Postal Service, Embracing the Future: Making the Tough Choices to
Preserve Universal Mail Service, July 31, 2003, at 71 (President's
Commission). The President's Commission recommended ``transforming
the narrowly focused Postal Rate Commission [ ] into an independent
Postal Regulatory Board.'' Id. at XIII.
\6\ See H.R. Rep. No. 109-66 at 57. Congress stated that ``the
bill clarifies the scope of the statutory monopoly that historically
has been defined solely by the [Postal Service].'' Id. at 58.
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In addition to adding price and weight limits as exceptions
(Sections 601(b)(1), (b)(2)), Congress also added a ``grandfather
clause'' in Section 601(b)(3) to authorize the continuation of private
activities that the Postal Service had purportedly permitted by
regulations to be carried out of the mail. The House Report on the PAEA
explains that this paragraph protects mailers and private carriers who
had relied upon the regulations adopted as of the date of the bill. See
H.R. Rep. No. 109-66 at 58. Congress also eliminated the Postal
Service's authority to adopt any regulations creating exceptions or
defining the scope of the postal monopoly. See 39 U.S.C. 401(2),
404(a)(1), 601. Congress instead gave the Commission the authority to
promulgate ``[a]ny regulations necessary to carry out this section
[601].'' \7\ To date, the Commission has not promulgated any
regulations pursuant to Section 601(c).
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\7\ 39 U.S.C. 601(c). See Docket Nos. MC2012-14 and R2012-8,
Order Approving Addition of Valassis Direct Mail, Inc. Negotiated
Service Agreement to the Market Dominant Product List, August 23,
2012, at 6-7 (Order No. 1448) (citing Section 601(c) and stating
that the Postal Service no longer has authority to issue regulations
interpreting or defining the postal monopoly); see also Docket No.
MC2012-13, Order Conditionally Granting Request to Transfer Parcel
Post to the Competitive Product List, July 20, 2012, at 6-7 (Order
No. 1411) (``As a result of the PAEA, the Postal Service no longer
has authority to issue regulations interpreting or defining the
postal monopoly. The Commission now has the authority to promulgate
such regulations.''). Order No. 1411 at 7 n.13.
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In Docket No. RM2020-4, the Commission issued an advance notice of
proposed rulemaking to seek input from the public about what
regulations promulgated by the Commission may be necessary to carry out
the requirements of 39 U.S.C. 601.\8\ In particular, the Commission
sought comments on fourteen issues, such as whether the statutory
requirements of Section 601 are clear and concise, whether any terms in
the statute required further definition, and whether consumers and
competitors can easily determine when a mailpiece is subject to
monopoly protections. Order No. 5422 at 7-8.
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\8\ See Docket No. RM2020-4, Advance Notice of Proposed
Rulemaking to Consider Regulations to Carry Out the Statutory
Requirements of 39 U.S.C. 601, February 7, 2020 (Order No. 5422).
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Prior to the comment deadline, the Commission issued two Chairman's
Information Requests, regarding certain Postal Service regulations.\9\
In its response, the Postal Service explained that it had not issued
regulations or other administrative directives in connection with
Sections 601(b)(1) and (2) since the effective date of amended Section
601(b).\10\ The Postal Service also provided information regarding
alternative payment agreements pursuant to 39 CFR 310.2(b).\11\ In
addition, the Postal Service provided information regarding advisory
opinions pursuant to 39 CFR 310.6. Docket No. RM2020-4, Response to
CHIR No. 1, question 2.
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\9\ Docket No. RM2020-4, Chairman's Information Request No. 1,
March 4, 2020 (Docket No. RM2020-4, CHIR No. 1); Docket No. RM2020-
4, Chairman's Information Request No. 2, April 1, 2020 (Docket No.
RM2020-4, CHIR No. 2).
\10\ Docket No. RM2020-4, Responses of the United States Postal
Service to Questions 1-3 of Chairman's Information Request No. 1,
March 11, 2020, question 1 (Docket No. RM2020-4, Response to CHIR
No. 1).
\11\ Docket No. RM2020-4, Response to CHIR No. 1, question 3;
see also Response of the United States Postal Service to Chairman's
Information Request No. 2, April 3, 2020, question 1 (Docket No.
RM2020-4, Response to CHIR No. 2).
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Comments were received from The Berkshire Company; Taxpayers
Protection Alliance; American Consumer Institute Center for Citizen
Research; United Parcel Service, Inc.; FedEx Corporation; Netflix,
Inc.; Small Business & Entrepreneurship Council; the National Postal
Policy Council and the National Association of Presort Mailers; the
Association for Postal Commerce; the Postal Service; and the Public
Representative.\12\ Based on the comments received, the Commission
found it necessary to gather more information from the public before
promulgating regulations under Section 601 and therefore, that
proceeding is held in abeyance until the conclusion of this
inquiry.\13\
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\12\ Docket No. RM2020-4, Comments of The Berkshire Company in
Response to Order No. 5442, April 6, 2020; Docket No. RM2020-4,
Comments of Taxpayers Protection Alliance, April 6, 2020; Docket No.
RM2020-4, Comments of American Consumer Institute Center for Citizen
Research Regarding Docket No. RM2020-4 Submitted to the United
States Postal Regulatory Commission, April 6, 2020; Docket No.
RM2020-4, Comments of United Parcel Service, Inc. on Advance Notice
of Proposed Rulemaking to Consider Regulations to Carry Out the
Statutory Requirements of 39 U.S.C. 601, April 7, 2020; Docket No.
RM2020-4, Comments of FedEx Corporation, April 7, 2020; Docket No.
RM2020-4, Comments of Netflix, Inc., April 7, 2020; Docket No.
RM2020-4, Comments of Small Business & Entrepreneurship Council,
April 7, 2020; Docket No. RM2020-4, Comments of the National Postal
Policy Council and the National Association of Presort Mailers,
April 7, 2020; Docket No. RM2020-4, Comments of the Association for
Postal Commerce, April 7, 2020; Docket No. RM2020-4, Comments of the
United States Postal Service in Response to Order No. 5422, April 7,
2020; Docket No. RM2020-4, Public Representative Comments, April 7,
2020.
\13\ Docket No. RM2020-4, Order Holding Rulemaking in Abeyance,
July 2, 2021 (Order No. 5929).
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III. Discussion
In this proceeding, the Commission seeks to focus its inquiry on
the statutory exemptions in Sections 601(a) and (b), and what
regulations under Section 601(c), if any, are needed to carry out those
exemptions. In particular, the Commission limits this inquiry to two
issues: (1) Whether Postal Service regulations administering current
Sections 601(a), 601(b)(1), and 601(b)(2) should be adopted by the
Commission; and (2) what private carrier services are within the scope
of Section 601(b)(3).
First, the Commission is interested in identifying Postal Service
regulations that administer Sections 601(a), 601(b)(1), and 601(b)(2)
and if the Commission should adopt them. Section 601(a) provides for
the private carriage of letters when, among other things, the letter is
in an envelope that is properly addressed, the proper amount of postage
is affixed to the envelope, and the postage is canceled in ink by the
sender. 39 U.S.C. 601(a). Sections 601(b)(1) and (b)(2) further provide
that a letter must meet price and weight requirements in order to be
carried out of the mail. 39 U.S.C. 601(b)(1), 601(b)(2).
Prior to the PAEA, the Postal Service issued regulations concerning
the restrictions on the private carriage of
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letters. Several of these regulations were modified and superseded by
the adoption of the PAEA. For example, the PAEA supersedes a Postal
Service regulation that allows private carriage if the amount paid is
``at least three dollars or twice the applicable U.S. postage for
First-Class Mail (including priority mail) whichever is greater.'' 39
CFR 320.6(c). In addition, a Postal Service regulation closely tracks
the language in Section 601(a) but also allows for alternative payment
agreements in written agreements between customers and the Postal
Service. 39 CFR 310.2(b). The Commission is specifically interested in
whether certain Postal Service regulations implement the current
statutory exemptions found in Sections 601(a), 601(b)(1), and
601(b)(2), and whether the Commission should adopt or revise these and
other regulations to clarify the statutory exemptions.
Second, the Commission is interested in identifying what private
carrier services are within the scope of Section 601(b)(3). See 39
U.S.C. 601(b)(3). The ``grandfather clause'' in Section 601(b)(3)
authorized the continuation of private activities that the Postal
Service had purportedly permitted by regulations to be carried out of
the mail. Specifically, it allows private carriage that is within the
scope of specific purported suspensions to the letter monopoly. 39 CFR
310.1 (2005) included twelve putative exceptions to the definition of
``letter'' and/or purported suspensions of the letter monopoly. 39 CFR
320.2-8 (2005) provided seven additional purported suspensions of the
PES, including for certain data processing materials, for certain
letters of college and university organizations, and for certain
international-ocean carrier-related documents. The Commission seeks
comments on what services were ``described by regulations of the United
States Postal Service . . . that purport to permit private carriage by
suspension of the operation of this section'' as of July 1, 2005. See
39 U.S.C. 601(b)(3). Additionally, the Commission seeks suggestions
regarding what regulations may be needed to enumerate in clear terms
all instances where private carrier services are within the scope of
Section 601(b)(3).
For both issues, the goal of the Commission is to determine whether
it is necessary to clarify the statutory exemptions regarding the
letter monopoly. The Commission seeks information as to how best to
resolve any ambiguities in the application of the exceptions. The
Commission also inquires whether consolidating regulations and
definitions under one section, rescinding redundant and/or conflicting
sections, or standardizing the terminology used in the regulations
would be helpful.
IV. Comments
The Commission invites interested persons to identify whether there
are any Postal Service regulations that the Commission should adopt to
carry out the requirements of Section 601 and if so, whether the
Commission should revise those regulations. In addition, the Commission
seeks comments that identify what private carrier services are within
the scope of Section 601(b)(3) and whether regulations are needed to
clearly enumerate those services. Commenters are encouraged to provide
specific suggestions on revisions or recommend new regulations.
The Commission recognizes that comments on these issues have been
provided in Docket No. RM2020-4. However, given the length of time
since those comments were received and the breadth of different topics
covered by the previous advance notice of proposed rulemaking, the
Commission finds it prudent to solicit updated comments to assist in
focusing this proceeding on a few particular issues. Commenters who
previously submitted comments in Docket No. RM2020-4 may provide
updated comments in this proceeding. The Commission envisions that the
comments provided in this proceeding will help inform any proposed
rules that may be issued in Docket No. RM2020-4.
Comments are due August 26, 2021. Material filed in this docket
will be available for review on the Commission's website, <a href="http://www.prc.gov">http://www.prc.gov</a>.
Pursuant to 39 U.S.C. 505, Kenneth E. Richardson will serve as the
officer of the Commission (Public Representative) to represent the
interests of the general public in this docket.
V. Ordering Paragraphs
It is ordered:
1. The Commission establishes Docket No. PI2021-2 for the purpose
of considering potential regulations under 39 U.S.C. 601.
2. Interested persons may submit written comments on potential
regulations no later than August 26, 2021.
3. Pursuant to 39 U.S.C. 505, Kenneth E. Richardson will serve as
the officer of the Commission (Public Representative) to represent the
interests of the general public in this proceeding.
4. The Secretary shall arrange for publication of this Notice in
the Federal Register.
By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2021-14636 Filed 7-8-21; 8:45 am]
BILLING CODE 7710-FW-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.