AUTHORITY: The provisions of this Part 203 issued under R.S. 161, as amended, 74 Stat. 554; 5 U.S.C. 22, 39 U.S.C. 307 note, 309, 501. Headquarters Circ. 61-45, 26 F.R. 10813.

SOURCE: The provisions of this Part 203 appear at 26 F.R. 12777, Dec. 30, 1961, unless otherwise noted:

§ 203.1 Authority for rules.

These rules of practice are issued by the Judicial Officer of the Post Office Department pursuant to authority delegated by the Postmaster General. § 203.2 Limitation.

The rules shall be applicable only to cases where the matter offered for mailing shall be of substantial value or quantity. The initial determination of this question by the General Counsel may be appealed to the Judicial Officer. § 203.3

Initiation.

Upon receipt of mail matter of doubtful mailability under the provisions of 18 U.S.C. 1302, 1461, 1463, 1717 or 1718 (see also 39 U.S.C. 4001) submitted by a postmaster pursuant to § 14.9 (b) of this chapter (§ 124.92 of the Postal Manual), the General Counsel shall: (a) File a complaint with the Docket Clerk of the Post Office Department or (b) instruct the postmaster to accept such matter for mailing.

§ 203.4 Complaint.

The complaint shall: (a) State statutory and/or regulatory authority for withholding the matter from the mails; (b) specify the character or content of the matter which the Complainant believes to be nonmailable; and (c) request the issuance of a notice of hearing by the Docket Clerk. § 203.5

Notice of hearing; service. Upon receipt of the complaint the Docket Clerk shall issue a notice setting the time and place for the hearing. The date set for the hearing shall be within ten days of the date of the filing of the complaint. The notice, together with copies of the complaint and these rules, shall be sent promptly to the postmaster at the place of mailing to be

served upon the mailer or his agent. A receipt therefor shall be obtained and forwarded immediately to the Docket Clerk. If personal service cannot be made, the notice of hearing shall be deposited in the mails for delivery in the regular course which shall constitute valid service. A report of such delivery shall be promptly forwarded to the Docket Clerk.

§ 203.6 Compromise and informal dispositions.

The mailer may request a conference with the Complainant to consider informal disposition of any question of mailability or apply to the Complainant for the withdrawal of the matter from the mails. When such a request is received, the scheduled hearing date will be postponed for such period of time as may be necessary but in no event longer than five days unless specifically requested by the mailer. If no agreement is reached, the proceeding shall promptly be rescheduled for hearing. § 203.7

Answer.

request that a hearing be held to receive evidence in his behalf at a place other than that designated for hearing in the notice. He shall support his request with a statement outlining: (a) The evidence to be offered in such place; (b) the names and addresses of the witnesses who will testify; (c) the reasons why such evidence cannot be produced at Washington, D.C. The presiding officer shall give consideration to the convenience and necessity of the parties and the relevancy of the evidence to be offered. § 203.11 Presiding officers.

The presiding officer at any hearing shall be a Hearing Examiner qualified pursuant to the Administrative Procedure Act (5 U.S.C. 1010) or the Judicial Officer (74 Stat. 554, Public Law 86-676). The Chief Hearing Examiner shall assign cases to Hearing Examiners upon rotation so far as practicable. The Judicial Officer may, for good cause shown, preside at the reception of evidence in proceedings where expedited hearings are requested by either party. § 203.12 Proposed findings of fact.

Unless otherwise ordered, proposed findings of fact and conclusions of law shall be submitted orally or in writing at the conclusion of the hearing. § 203.13 Initial decision.

Unless given orally at the conclusion of the hearing, the Hearing Examiner shall render an initial decision as expeditiously as practicable following the conclusion of the hearing, and the receipt of the proposed findings, if any. The initial decision shall become the departmental decision if an appeal is not perfected.

§ 203.14 Appeal.

Either party may file exceptions in a brief on appeal to the Judicial Officer within five days after receipt of the initial decision unless additional time is granted. A reply brief may be filed within five days after the receipt of the appeal brief by the opposing party. § 203.15 Departmental decision.

The Judicial Officer shall render a Departmental decision or refer the matter to the Postmaster General for decision. The decision shall be served upon the parties and the postmaster.

§ 203.16 Expedition.

For the purposes of further expedition the parties may, with the concurrence of

Department pursuant to authority delegated by the Postmaster General.

§ 204.2 Scope of rules.

The rules of practice shall apply to all Post Office Department proceedings concerning applications, denials, suspensions and revocations of second-class mailing privileges arising under 39 U.S.C. 4351, 4352, 4353, 4354, 4355, 4356, and 4369. § 204.3 Informal dispositions.

These rules do not preclude the informal disposition of second-class mailing privilege matters before or after institution of proceedings.

§ 204.4

Office, business hours.

The offices of the officials mentioned in these rules are located at the Post Office Department, 12th and Pennsylvania Avenue NW., Washington 25, D.C., and are open Monday through Friday from 8:45 a.m., to 5:15 p.m.

§ 204.5 Application.

A publisher may file an application for second-class mailing privileges. (See Part 22 of this chapter.) An authorized official of the Bureau of Operations, Post Office Department (hereinafter called "the Director") rules upon all applications. If he denies the application he shall notify the publisher specifying the reasons for his denial and attaching a copy of these rules. Before taking action on an application, the Director may call upon the publisher for additional information or evidence to support or clarify the application. Failure of the publisher to furnish such information or evidence may be cause for the Director to deny the application as incomplete or, on its face, not fulfilling the requirements for entry. § 204.6 Revocation or suspension.

When the Director determines that a publication is no longer entitled to second-class mailing privileges, he shall issue a ruling of suspension or revocation to the publisher at the last known address of the office of publication stating the reasons and attaching a copy of these rules.

§ 204.7 Failure to appeal proposed ac

tion.

A ruling of the Director shall become final upon failure of the publisher to file a petition in accordance with the requirements of § 204.8.

(a) Place of filing. Parties shall file documents of record in triplicate, unless otherwise ordered by the presiding officer after intervention pursuant to § 204.10 with Docket Clerk of the Post Office Department, who shall cause copies to be delivered to the other parties and to the presiding officer. The Docket Clerk shall maintain a docket and the files in all proceedings.

(b) Petition. A publisher may appeal from a ruling of the Director by filing a petition within 15 days of the receipt of the ruling unless the time is extended by the Director. The petition shall state the reasons why the publisher believes the ruling of the Director is erroneous. The petition shall also allege facts showing compliance with each provision of law or regulation on which the publisher's claim to second-class mail privileges is based. The publisher shall attach to his petition a copy of the letter of the Director denying, suspending or revoking second-class mail privileges.

(c) Notice of hearing. Upon receipt of the petition the Docket Clerk shall set a date for the hearing and issue a notice of hearing to the parties stating the time and place of the hearing, the date for filing an answer, and the name of the presiding officer.

(d) Answer. The director shall answer the petition within 15 days after filing and admit or deny each allegation of the petition.

(e) Amendment. An amendment of a pleading may be offered by any party at any time prior to the close of the hearing. If the presiding officer deems it appropriate to permit the amendment of a pleading, he may impose such conditions, by way of continuance of the hearing date or otherwise, as he considers necessary to assure a fair hearing.

§ 204.10 Intervention.

To intervene a person not a party to the proceeding shall file an application in writing not less than three days before the time fixed for hearing. The application shall state whom the potential intervenor represents, his interest, the extent to which he desires to participate, and the evidence he seeks to introduce. The presiding officer shall grant an application to intervene upon a proper showing of interest. Participation of an intervenor shall be limited to the filing of a brief before the presiding officer. § 204.11 Hearings.

Hearings are held in Room 5241, Post Office Department, Washington 25, D.C., or other locations designated by the presiding officer.

§ 204.12 Change of place of hearing.

Not later than the date fixed for the filing of the answer, a party may file a request that a hearing be held to receive evidence in his behalf at a place other than that designated for hearing in the notice. He shall support his request with a statement setting forth:

(a) The evidence to be offered in such place;

(b) The names and addresses of the witnesses who will testify;

(c) The reasons why such evidence cannot be produced at Washington, D.C. The presiding officer shall give consideration to the convenience and necessity of the parties and the relevancy of the evidence to be offered.

(a) The General Counsel of the Post Office Department or a member of his staff designated by him shall represent the Director.

(b) A publisher or intervenor may appear and be heard in person or by attorney. Attorneys may practice before the Department in accordance with applicable rules issued by the Judicial Officer. See Part 202 of this chapter.

(c) An attorney representing a publisher or intervenor shall file a written authorization from the publisher or intervenor before he may participate in the proceeding. The publisher or intervenor must promptly file a notice of change of attorneys.

(d) When a publisher or intervenor is represented by an authorized attorney all subsequent pleadings shall be served upon the attorney.

(b) The presiding officer shall have authority to:

(1) Administer oaths and affirmations;

(2) Examine witnesses;

(3) Rule upon matters of evidence and procedure;

(4) Order any pleading amended upon motion of a party at any time prior to the close of the hearing;

(5) Maintain discipline and decorum and exclude from the hearing any person acting in an indecorous manner;

(6) Require the filing of briefs on any matter upon which he is required to rule;

(7) Order prehearing conferences for the settlement or simplification of issues by consent of the parties;

(8) Order the proceeding reopened at any time prior to his decision for the receipt of additional evidence;

(9) Render an initial decision.

§ 204.15 Judicial Officer.

The Judicial Officer is authorized (a) to act as presiding officer at hearings and (b) to render a final Departmental Decision for the Postmaster General. On appeal from an Initial Decision of a Hearing Examiner, the Judicial Officer will consider the entire record including the initial decision and the exceptions to that decision. Before any final agency decision has been rendered, the Judicial Officer may order the hearing reopened for the presiding officer to take additional evidence.

nesses of, or depositions requested by, the publisher or intervenor.

(d) Depositions. Depositions may be taken as follows:

(1) Not later than five days after the filing of Director's answer, any party may file application with the presiding officer for the taking of testimony by deposition. In support of such application the applicant shall submit, under oath or affirmation a statement setting out the reasons why such testimony should be taken by deposition, the time and the place, and the name and address of the witness whose deposition is desired, the subject matter of the testimony of each witness, its relevancy, and the name and address of the person before whom the deposition is to be taken.

(2) If the application is granted, the order for the taking of the deposition will specify the time and place thereof, the name of the witness, the person before whom the deposition is to be taken and any other necessary information.

(3) Each witness testifying upon deposition shall be duly sworn by the deposition officer and the adverse party shall have the right to cross-examine. The questions and answers together with all objections, shall be reduced to writing and, unless waived by stipulation of the parties, shall be read to and subscribed by the witness in the presence of the deposition officer who shall certify it in the usual form. The deposition officer shall file the testimony taken by deposition as directed in the order. All objections made at the time of examination shall be noted by the deposition officer and the evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, a party may transmit written interrogatories to the deposition officer, who shall propound them to the witness and record the answers verbatim. Objections to relevancy or materiality of testimony, or to errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, cured or removed if promptly presented, are waived unless timely objection is made at the taking of the deposition.

(4) At the hearing any part or all of the deposition may be offered in evidence by any party who was present or represented at the taking of the deposition or