65FR31265 Procedures for the Issuance of Administrative Subpoenas Under 39 U.S.C. 3016
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Posting-number: Volume 65, Issue 96, Page 31265
[Federal Register: May 17, 2000 (Volume 65, Number 96)]
[Rules and Regulations]
[Page 31265-31266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17my00-14]
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POSTAL SERVICE
39 CFR Part 913
Procedures for the Issuance of Administrative Subpoenas Under 39
U.S.C. 3016
<BD>AGENCY: <RM>Postal Service.
<BD>ACTION: <RM>Final rule.
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<BD>SUMMARY: <RM>This final rule establishes procedures for the
issuance of administrative subpoenas in investigations of false
representations and lotteries under 39 U.S.C. 3005(a). It adopts with
changes a proposed rule published for public comment on March 16, 2000
(65 FR 14229-30). For reasons stated below, this rule will become
effective immediately.
<BD>EFFECTIVE DATE: <RM>May 17, 2000.
<BD>FOR FURTHER INFORMATION CONTACT: <RM>Elizabeth P. Martin, (202)
268-3022.
<BD>SUPPLEMENTARY INFORMATION: <RM>The Deceptive Mail Prevention and
Enforcement Act, Public Law 106-168, 113 Stat. 1806 (December 12,
1999), generally amended chapter 30 of title 39, United States Code, to
make nonmailable certain deceptive matter relating to sweepstakes,
skill contests, and facsimile checks. It also amended provisions
relating to administrative procedures and orders, and added civil
penalties relating to such matters.
Under new 39 U.S.C. 3016, the Postmaster General has authority to
issue administrative subpoenas requiring the production of any records
(including books, papers, documents, and other tangible things which
constitute or contain evidence) which the Postmaster General considers
relevant or material in any investigation conducted under 39 U.S.C.
3005(a), dealing with false representations and lotteries.
On March 16, 2000, the Postal Service published in the <CS>Federal
Register <RM>a proposed new Part 913 to title 39 of the Code of Federal
Regulations to establish the procedures to be used for the issuance of
the administrative subpoenas authorized under 39 U.S.C. 3016 (65 FR
14229-30). The proposed rules set forth the conditions under which
subpoenas may be issued, the methods of service of subpoenas, the means
by which subpoenas may be enforced, and the restrictions on the
disclosure of subpoenaed information. Although exempt by 39 U.S.C.
410(a) from the notice and comment requirements of the Administrative
Procedure Act, the Postal Service invited comments on the proposed new
Part 913. The Postal Service received two comments, and has considered
and incorporated several of the points raised therein.
Publishers Clearing House (PCH) suggested that Sec. 913.1(a) should
acknowledge that the authority to issue the subpoenas lies with the
Postmaster General. The regulation has been changed to clarify that
fact. Both PCH and the Postal Service Office of the Inspector General
(OIG) expressed concern that the regulations should more closely track
the language of the statute regarding conditions precedent to the
issuance of a subpoena. A new Sec. 913.1(c) has been added to address
those concerns. Current subsections (c) and (d) are relettered as (d)
and (e). New Sec. 913.1(d)(3) similarly addresses the concern regarding
conditions precedent.
New section 913(d)(1) is changed to clarify that only a
specifically authorized Inspector may submit a request. At the
suggestion of the OIG, new 913.1(d)(4) is changed to clarify that the
General Counsel, at his or her discretion, may issue or deny a
subpoena, require additional information, or honor requests to amend or
supplement a request.
Both the OIG and PCH expressed concerns with respect to the clarity
of Sec. 913.4. We have considered their suggestions, however, we have
not adopted their proposed language. The language published is that
which is contained in the statute, and thus any lack of clarity is
statutory. We interpret that language to state that anything turned
over pursuant to a subpoena is exempt from release under the Freedom of
Information Act.
Finally, the OIG suggested that certain new reporting requirements
concerning the number of cases in which the authority under 39 U.S.C.
3016 is used should be addressed by these regulations. We have
determined that the reporting requirements are not relevant to the
process by which subpoenas are requested and issued, and have declined
to make the suggested change.
With regard to the effective date, we have determined that there is
good cause to make the new regulations effective upon publication. We
believe that the public interest would not be served by providing
persons who might
[[Page 31266]]
be subject to false representation or lottery investigations under 39
U.S.C. 3005(a) with a further ``window of opportunity'' until their
records become subject to administrative subpoena requirements.
List of Subjects in 39 CFR Part 913
Administrative practice and procedure, False Representations,
Lotteries.
Accordingly, for the reasons discussed above, the Postal Service
hereby adds Part 913 to title 39, of the Code of Federal Regulations as
set forth below.
PART 913--PROCEDURES FOR THE ISSUANCE OF ADMINISTRATIVE SUBPOENAS
UNDER 39 U.S.C. 3016
Sec.
913.1 Subpoena authority.
913.2 Service.
913.3 Enforcement.
913.4 Disclosure.
<CS>Authority: <RM>39 U.S.C. 204, 401, 404, 3005, 3016.
Sec. 913.1 Subpoena authority.
(a) General. The General Counsel by delegation from the Postmaster
General is responsible for the issuance of subpoenas in investigations
conducted under 39 U.S.C. 3005(a), with authority to delegate that
function to a Deputy General Counsel.
(b) Production of records. A subpoena issued by the General Counsel
may require the production of any records (including computer records,
books, papers, documents, and other tangible things which constitute or
contain evidence) which the General Counsel considers relevant or
material to an investigation.
(c) Requirements. No subpoena shall be issued until a specific case
(identifying the individual or entity that is the subject) has been
opened and an appropriate supervisory and legal review of a subpoena
request have been performed.
(d) Requests for subpoenas. (1) A request for a subpoena shall be
submitted to the Office of the General Counsel by a Postal Inspector,
Inspector Attorney, or other Inspector specifically authorized by the
Postal Inspection Service to submit such a request, after appropriate
review by an Inspector In Charge or that person's designee.
(2) A request for a subpoena shall state the specific case, with an
individual or entity identified as the subject, in which the subpoena
is requested.
(3) A request for a subpoena shall contain a specific description
of the records requested, and shall state how they are relevant or
material to the investigation.
(4) The General Counsel, in his or her discretion, may issue or
deny the requested subpoena, or require the requesting individual to
provide additional information. The General Counsel, in his or her
discretion, may also honor requests to amend or supplement a request
for a subpoena.
(e) Form and issuance. Every subpoena shall cite 39 U.S.C. 3016 as
the authority under which it is issued, and shall command each person
to whom it is directed to produce specified records at a time and place
therein specified. The General Counsel shall sign the subpoena and
enter the name of the individual or entity to whom it is directed.
Sec. 913.2 Service.
(a) Service within the United States. A subpoena issued under this
section may be served by a person designated under section 3061 of
title 18 at any place within the territorial jurisdiction of any court
of the United States.
(b) Foreign service. Any such subpoena may be served upon any
person who is not to be found within the territorial jurisdiction of
any court of the United States, in such manner as the Federal Rules of
Civil Procedure describe for service in a foreign country. To the
extent that the courts of the United States may assert jurisdiction
over such person consistent with due process, the United States
District Court for the District of Columbia shall have the same
jurisdiction to take any action respecting compliance with this section
by such person that such court would have if such person were
personally within the jurisdiction of such court.
(c) Service on business persons. Service of any such subpoena may
be made upon a partnership, corporation, association, or other legal
entity by--
(1) Delivering a duly executed copy thereof to any partner,
executive officer, managing agent, or general agent thereof, or to any
agent thereof authorized by appointment or by law to receive service of
process on behalf of such partnership, corporation, association, or
entity;
(2) Delivering a duly executed copy thereof to the principal office
or place of business of the partnership, corporation, association, or
entity; or
(3) Depositing such copy in the United States mails, by registered
or certified mail, return receipt requested, duly addressed to such
partnership, corporation, association, or entity at its principal
office or place of business.
(d) Service on natural persons. Service of any subpoena may be made
upon any natural person by--
(1) Delivering a duly executed copy to the person to be served; or
(2) Depositing such copy in the United States mails, by registered
or certified mail, return receipt requested, duly addressed to such
person at his residence or principal office or place of business.
(e) Verified return. A verified return by the individual serving
any such subpoena setting forth the manner of such service shall be
proof of such service. In the case of service by registered or
certified mail, such return shall be accompanied by the return post
office receipt of delivery of such subpoena.
Sec. 913.3 Enforcement.
(a) In general. Whenever any person, partnership, corporation,
association, or entity fails to comply with any subpoena duly served
upon him, the General Counsel may request that the Attorney General
seek enforcement of the subpoena in the district court of the United
States for any judicial district in which such person resides, is
found, or transacts business (or in the case of a person outside the
territorial jurisdiction of any district court, the district court for
the District of Columbia), and serve upon such person a petition for an
order of such court for the enforcement of this part.
(b) Jurisdiction. Whenever any petition is filed in any district
court of the United States under this section, such court shall have
jurisdiction to hear and determine the matter so presented, and to
enter such order or orders as may be required to carry into effect the
provisions of this section. Any final order entered shall be subject to
appeal under section 1291 of title 28, United States Code. Any
disobedience of any final order entered under this section by any court
may be punished as contempt.
Sec. 913.4 Disclosure.
Any documentary material provided pursuant to any subpoena issued
under this section shall be exempt from disclosure under section 552 of
title 5, United States Code.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 00-12319 Filed 5-16-00; 8:45 am]
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