NOTE: Information from FY 90 was only available for the first three quarters of the fiscal year.

On average, the number of appeals to the Office of Federal Operations represent about 15 percent of the total complaints filed over those years. The findings of discrimination represent less than 5 percent of the total decisions.

The findings of discrimination in the U.S. District Court cases represent less than 2 percent of the total decisions.

k.

We only maintain records on the Office of Federal Operations (OFO) decisions. Over the past three fiscal years, the average time between appeal to the OFO and date of decision has been 186 days.

ANSWERS TO POST-HEARING QUESTIONS

TRANSMITTED BY THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE

1.

The IPA report on the Ratemaking Process finds that, "Every
change in service by the Postal Service - large or small
is subject to prior review". The report says that the PRC
interprets this rule in an exaggerated fashion. The last
time the PRC testified before this Committee, you did not
have enough time to digest the IPA report. Now that it's
seven months later, would you please comment on this finding
in the IPA report.

1. The IPA report does not make it quite clear what sorts of "change[s] in service" are meant. There are two possibilities, both of which we will discuss.

A. One type of "change" is a change in the defining characteristics of a postal service: mailer eligibility, preparation requirements, permissible physical characteristics of the mail such as rigidity or envelope color, and the like. Some of these characteristics fall under the heading of mail classification, for which a Commission hearing and recommended decision and a Governors' decision are required by 39 U.S.c. §§ 3623-3625. A great many, however, are made without participation by the Commission or the Governors. detailed operational rules implementing the classification schedule are issued by the Postal Service, usually (though not invariably) after publication in the Federal Register and an opportunity for public comment.

The more

The line between classification and operational rulemaking was first drawn in National Retired Teachers Association v. U. S. Postal Service, 430 F. Supp. 141 (D.D.C. 1977), affirmed, 593 F.2d 1360 (D.C. Cir. 1979). The court stated:

a classification is a "grouping" of mailing

matter for the purpose of assigning it a specific rate
or method of handling. Relevant factors include size,
weight, content, ease of handling, and identity of both
posting party and recipient.

430 F. Supp. at 146-7. This definition, and the division of responsibility between the Commission and Governors (on the "classification" side) and the Postal Service (for operational rules), were reaffirmed in Combined Communications Corp. v. U.S. Postal Service, 686 F. Supp. 663 (M.D. Tenn. 1988), affirmed, 891 F.2d 1221 (6th Cir. 1989).

From the mailers' point of view, both the classification decisions of the Commission and the Governors and the rules issued unilaterally by the Service can "change" the service they receive or the requirements they must satisfy to receive it. In terms of sheer volume and level of detail, the Service's Domestic Mail Manual regulations considerably exceed the Domestic Mail Classification Schedule.'

As stated above, these "changes" can be made without reference to the Commission, provided they fall short of changing the basic "grouping of mailing matter" referred to in the NRTA decision. The Domestic Mail Classification Schedule, indeed, often specifically provides for requirements to be set administratively by the Postal Service. To the extent that the

1 It is interesting that the recent Competitive Services Task Force report reflects interest by mailers in reducing the size and complexity of the regulations in the Domestic Mail Manual.

2 See, for instance, DMCS §

100.0201 (d) [First-Class address readability]; 100.0202 [FIMs and machinability standards]; 100.0204 [presort standards]; 100.0211 and 100.0214 [machinability and address readability standards - cards]; 100.0231 [rules for availability of Priority Mail pickup];

IPA report was concerned with changes in the practical definition of the services offered, therefore, it is inaccurate in stating that all such changes must be submitted to the Commission.

B. A further possibility is that the statement refers to changes not in the definitions of types of mail service or requirements for using them, but in the way such services are rendered. This is a relevant concern because 39 U.S.C. § 3661(b) requires that

When the Postal Service determines that there
should be a change in the nature of postal services
which will generally affect service on a nationwide or
substantially nationwide basis, it shall submit a
proposal, within a reasonable period of time prior to
the effective date of such proposal, to the Postal Rate
Commission requesting an advisory opinion on the
change.

Section 3661(c) requires the Commission to hold trial-type hearings on the proposed change.

This provision seems relevant to IPA's assertion because it does, in so many words, address "change[s] in service." We would question whether the rendering of an advisory opinion constitutes "review" in the normal sense: the Postal Service is legally free to disregard the advisory opinion, and in the most recent § 3661 case3 has done so.

100.041 [Postal Service to set presort regulations]; 100.042 [presentation and identification marks for presort mail]; 100.043 [certain cards not mailable unless prepared as prescribed by Postal Service]; 100.047 [general First-Class/Priority presentation and marking requirements]. These are provisions governing only First Class; the other major classes have many similar provisions.

3

Change in Service, 1989: First-Class Delivery Standards Realignment, PRC Op. N89-1, July 25, 1990. This advisory opinion reported unfavorably on the Service's plan to reduce the scope of overnight and second-day First-Class Mail delivery standards.

What is certainly not accurate in IPA's observation, as applied to § 3661, is the proposition that "[e]very change in service by the Postal Service large or small" must be reviewed. Buchanan v. U.S. Postal Service, 508 F.2d 259 (5th Cir. 1975), established early in the history of the Act that (i) § 3661 should be construed narrowly so as not to interfere unduly with postal management, and (ii) consequently, an advisory opinion is required only where the change is nationwide or substantially so, of significant import, and concerned with service. This case has governed the interpretation of § 3661 ever since.

As might be expected, therefore, § 3661 cases have been few and far between. Since Reorganization, there have been four of

them. They have concerned, respectively: a program for

identifying redundant retail facilities, the abolition of Airmail as a distinct category, the acceptance of checks in payment for COD shipments, and the 1989 reduction in First-Class delivery

standards.

The

If accurate, the IPA statement quoted in the question would signal the need for a fresh look at the process. But it is inaccurate in asserting that all changes must be reviewed. Act, as consistently interpreted and applied, draws a commonsense line between changes fundamental enough to require independent evaluation by the Commission and final approval by the Governors (or, in the § 3661 case, the Commission's independent but non-binding advice) and those better left to operating management.

2.

The IPA report also determined that, "The ratemaking process is not linked effectively to planning, budgeting or leadership objectives in the Postal Service." Again, now that you have had time to digest the IPA report, would you please comment on this finding.