General Counsel or his designee constitutes final action so far as the Department is concerned.

(b) If a claim is disallowed or if the claimant is unwilling to accept the amount awarded, the claimant may resort to the U.S. courts for relief. Conditions under which relief may be sought in the courts may be found in Title 28 U.S.C. 2675 and other pertinent sections of the Code referred to therein. Before such suit is brought, the pertinent provisions of Title 28 of the United States Code should be examined by the claim

ant.

§ 912.9 Exclusiveness of remedy.

The provisions of 28 U.S.C. 2679 provide that the remedy against the United States, as provided by sections 1346(b) and 2672 of Title 28, for injury or loss or personal injury or death resulting from the operation by an employee of the government of any motor vehicle while acting within the scope of his employment is exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

§ 912.10 Attorneys' fees.

The provisions of 28 U.S.C. 2678 should be consulted in determining the amount of the attorneys' fees.

The rules of practice are issued by the General Counsel of the Post Office Department pursuant to the authority delegated by the Postmaster General.

§ 916.2 Scope of the rules.

The rules of practice shall be applicable to administrative hearings requested pursuant to 39 United States Code 4009 (d). The provisions of Subchapter II of Chapter 5 (relative to administrative procedures) and Chapter 7 (relative to judicial review) of Part I of Title 5, United States Code, shall not apply to the (administrative) hearings conducted under 39 United States Code 4009 (d).

§ 916.3

Notice of demand for hearing.

(a) Respondent served with a complaint by the postmaster charging violation of 39 United States Code 4009, may request a hearing on the issues. The mailer shall file a written request for such hearing with the postmaster no later than 15 days from the date of receipt of a complaint issued pursuant to paragraph (d) of 39 United States Code 4009.

(b) The postmaster, upon receipt of a request for a hearing from the respondent, shall promptly forward such request with the file in the matter to the appropriate regional counsel.

§ 916.4 Notice of hearing.

(a) The regional counsel, upon receipt of the respondent's request for a hearing, shall serve upon the respondent, by registered or certified mail, a notice of hearing setting forth the date, time, and place of hearing, and the name of the hearing officer who will preside. A copy of the rules will accompany the notice of hearing.

(b) Whenever practicable, the hearing date will be within 30 days from date of the notice of hearing served on the mailer.

(c) Requests for continuances and extensions of the scheduled hearing date shall be filed with the hearing officer and such requests, within the discretion of the hearing officer, shall not be granted except for good and substantial reasons shown.

(d) The parties in the proceeding initiated under 39 United States Code 4009 shall be the mailer, referred to as "Respondent", and the postmaster, referred to as "Complainant”.

§ 916.5 Hearing officers.

The presiding officer at the hearing held under this part shall be the appropriate regional counsel of the Post Office Department, or an alternate hearing officer designated by the regional counsel or by the General Counsel of the Department, to preside as hearing officer and to exercise the same authority as the regional counsel in the proceeding under this part.

[33 F.R. 15026, Oct. 8, 1968]

§ 916.6 Change of place of hearing.

Requests for change of place of hearing based on good and substantial reasons therefor, may be filed with the hearing officer. Such requests may be granted or denied, within the discretion of the hearing officer, who shall consider the convenience and necessity of all parties concerned and the jurisdictional requirements. § 916.7

Conduct of the hearings.

(a) Testimony shall be under oath and witnesses shall be subject to cross examination.

(b) Hearings shall be stenographically reported by postal personnel, or if necessary, a contract reporter of the Post Office Department under the supervision of the hearing officer. Copies of the transcript shall be supplied to the parties to the proceeding by Post Office personnel at the rates provided by Part 113 of this chapter, or if by the reporter, at rates not to exceed the maximum rates fixed by the contract between the Post Office Department and the reporter.

(c) A party may object to admissions of evidence and shall make a brief statement of the grounds for the objections. Formal exceptions to the rulings of the presiding officer are unnecessary.

(d) All relevant and material evidence is admissible, including hearsay evidence of a trustworthy nature.

(e) The Post Office Department is not authorized by law to issue subpoenas requiring the attendance or testimony of witnesses or the production of documents.

(f) The Post Office Department is not authorized to pay fees and expenses for the respondent's witnesses or for depositions requested by the respondent pursuant to § 916.8.

under § 916.4, either party may file with the hearing officer a request for the taking of testimony by deposition. A copy of the request shall be served on complainant. Requests shall contain a statement under oath, signed by the respondent, setting out the reasons for the request, the time and place for the taking of depositions, the name and address of the person before whom the deposition will be taken, and the name and address of the witness or witnesses whose deposition or depositions are sought. The statement shall also show the relevancy of the testimony to be abduced. The granting or denying of the request shall lie within the discretion of the presiding officer.

(b) Parties shall have the right to examine witnesses at the taking of depositions and to interpose objections to questions. Testimony shall be under oath. The deposition officer shall file the testimony taken, as directed by order of the hearing officer.

(c) The party requesting the deposition shall pay all fees required to be paid to witnesses and the deposition officer.

(d) All or any part of the deposition may be offered in evidence at the hearing by any party and shall become part of the record in the proceeding. If the deposition is not offered and received in evidence, it shall not be considered part of the record.

§ 916.9 Submission in lieu of testimony.

(a) In lieu of presenting testimony at a hearing, the parties may, with the approval of the hearing officer, enter into a stipulation for the submission of verified documentary evidence to the hearing officer. The hearing officer will render a decision on the issue of alleged violation of 39 United States Code 4009 based solely on the evidence submitted.

(b) Submissions by the parties may be accompanied by a memorandum in support of respective positions on the issue or issues involved.

(c) A party against whom an adverse decision has been rendered by the hearing officer, may file an appeal from such decision, in accordance with § 916.12. § 916.10

Consolidation.

(a) Where the postmaster has issued an order or orders directed to the respondent, under 39 United States Code 4009, involving more than one designated address, the hearing officer may

(b) The decision of the Assistant General Counsel, Mailability Division, shall be the final Departmental decision, from which no further appeal will lie.

§ 916.13 Waiver of right to appeal.

In the event the respondent files a response pursuant to paragraph (d) of 39 United States Code 4009 and does not request a hearing on the issues, he shall be deemed to have waived the provisions of § 916.11, in which event the determination by the complainant as to violation of 39 United States Code 4009 shall become the final Departmental decision, from which no appeal shall lie.

§ 916.14 Settlement agreements.

(a) These rules do not preclude the disposition of any matter by agreement between the parties at any stage of the proceeding and in accordance with paragraphs (b) and (c) of this section.

(b) Settlement agreements undertaken between the parties after filing of a demand for a hearing shall be subject to the approval of the hearing officer.

(c) Settlement agreements between the parties subsequent to the filing of an appeal shall be subject to approval of the appellate officer-the Assistant General Counsel, Mailability Division.

PART 926-RULES OF PRACTICE IN PROCEEDINGS TO REVOKE ORDERS CHANGING THE MODE OF TRANSPORTATION OF PERIODICAL MAIL OF THE SECOND CLASS

§ 926.1 Rules of practice_governing proceedings before the Post Office Department to revoke orders changing the mode_of_transportation of periodical mail of the second class. (a) Proceedings governed. This section shall govern all proceedings under 39 U.S.C. 6212, relating to the revocation of orders of the Post Office Department changing the mode of transportation of periodical mail.

(b) How instituted. Whenever the owner of any publication entered as second class matter believes that a Post Office Department order requiring the transportation of his publication by freight constitutes unjust discrimination he may petition the Assistant

Postmaster General, Bureau of Transportation, for revocation of said order. (c) Contents of petition. The petition shall state the statute and portions of the regulations of the Post Office Department involved; shall identify the order sought to be revoked; and shall contain a concise statement of the manner in which the said order is alleged to constitute unjust discrimination. All petitions shall be signed by the petitioner or his attorney. If the petitioner is a corporation, association or partnership the petition shall be signed by a bona fide officer thereof or by one or more partners. All petitions shall show the office and post office address of the petitioner. All petitions shall be verified. Petitions may be accompanied by supporting affidavits or other documentary evidence.

(d) Filing. The original and two copies of the petition shall be filed with the Assistant Postmaster General, Bureau of Transportation, Post Office Department, Washington 25, D. C.

(e) Amendment. The petition may be amended or supplemented at any time prior to the hearing.

(f) Designation of Trial Examiners. All hearings shall be held before one or more trial examiners designated by the Postmaster General to preside at administrative proceedings before the Post Office Department.

(g) Authority of Trial Examiners; powers. The Trial Examiners are charged with the duty of conducting a fair, impartial, expeditious and orderly hearing to the end that petitioners shall have a full and fair hearing. Trial Examiners shall have the authority to rule upon offers of proof; to receive oral or documentary evidence; to regulate the course of the hearing and the conduct of participants; to grant continuances after commencement of the hearing; dispose of procedural motions; hold prehearing conferences for the settlement or simplification of the issues by consent of the parties; require oral argument or briefs upon any question at the close of the hearing; and make recommended decisions to the Assistant Postmaster General, Bureau of Transportation. The Trial Examiners shall have no power to decide any matter which involves a final determination of the merits of the proceeding.

(h) Place of hearing. In setting the place for the hearing due regard will be given to the convenience and necessity of all parties.

(1) Preliminary review of petition. Upon receipt of the petition the Assistant Postmaster General, Bureau of Transportation, shall, when time, the nature of the proceeding and public interest permit, examine the same and determine whether the relief requested can be granted upon the basis of the matter submitted.

(j) Responsive pleadings. If the petition cannot be granted as provided in paragraph (i) of this section the Assistant Postmaster General, Bureau of Transportation, shall serve a copy thereof upon the General Counsel of the Post Office Department, the Trial Examiners and any person or concern directly interested in the proceedings. He shall also notify the interested parties that they may intervene, if they see fit, by

filing a responsive pleading within the time limit designated. The General Counsel of the Post Office Department shall also be required to file a responsive pleading. Responsive pleadings shall clearly show the controverted issues of fact or law.

(k) Date and time of hearing. After the time for filing responsive pleadings has expired the Assistant Postmaster General, Bureau of Transportation, shall set a time and place for the hearing.

(1) Continuances prior to commencement of hearing. Continuances of the hearing will be granted only in unusual or extraordinary circumstances. All requests for continuances prior to the commencement of the hearing shall be in writing and directed to the Assistant Postmaster General, Bureau of Transportation. The request shall contain a concise statement of the basis for the continuance.

(m) Prehearing conferences. In any proceeding assigned for hearing the Trial Examiners or either party may request a prehearing conference for the settlement or simplification of the issues by consent of the parties. No transcript of such conference shall be made but the Trial Examiners shall prepare and file for the record a written summary of the action taken at the conference which shall incorporate any written stipulations or agreements made by the parties at the conference or as a result of the conference.

(n) Order of procedure. The Petitioner shall have the burden of proof and shall have the right to open and close.

(0) Witnesses. All witnesses shall be duly sworn and shall be subject to crossexamination.

(p) Evidence. Competent, material and relevant oral or documentary evidence may be offered and received. Documentary evidence must be properly identified or authenticated. Three copies of all documentary exhibits must be supplied for the record.

(q) Objections. If any party objects to the admission or rejection of any evidence, or to the limitation of the scope of direct or cross-examination, he shall state briefly the grounds for such objection. Exceptions to all adverse rulings are automatic. The objection, grounds

and ruling thereon shall become a part of the record. Oral argument thereon shall be omitted from the record.

(r) Subpoenas. The Post Office Department is not authorized by law to issue subpoenas requiring the attendance or testimony of witnesses.

(s) Oral argument. At the conclusion of the testimony the parties shall have the right to argue the issues orally before the Trial Examiner, within such limits as to time and subject matter as may be prescribed by him. Oral arguments shall become a part of the record of the case. The petitioner shall have the right to open and close.

(t) Transcript of proceedings. The hearing shall be reported and transcribed by the reporting system made available by the Post Office Department. Said transcript together with all preliminary papers filed in the case and exhibits received in evidence and those identified and offered but excluded and which are necessary to complete the record of the proceeding and all briefs, proposed findings of fact and conclusions of law; the Trial Examiner's findings, report and recommended decision, shall be included in the official record of the proceeding and shall become a part of the files of the Post Office Department. A copy thereof shall be loaned to each party for use in preparing briefs and must be returned to the Department with the brief.

(u) Briefs. Within such time limit as the Trial Examiner shall specify and prior to any recommended decision each party may file a brief and proposed findings of fact and conclusions of law. If it shall be deemed necessary the Trial Examiner may require the attorney for the Department to brief his side of the case.

(v) Trial Examiner's report. Upon the basis of the entire record as hereinabove defined the Trial Examiner shall promptly prepare a report which shall include his recommended decision and his rulings upon each proposed finding of fact and conclusion of law with the reasons or basis for such ruling, and transmit it to the Assistant Postmaster General, Bureau of Transportation, together with the transcript of proceedings. Such report will be advisory only and

not binding upon the Assistant Postmaster General, Bureau of Transportation.

(w) Decision. Upon the basis of the transcript of proceedings, the Assistant Postmaster General, Bureau of Transportation, shall revoke the order in question or deny the petition. No oral argument before the Assistant Postmaster General, Bureau of Transportation will be allowed.

(x) Administrative appeals. Section 6212 of Title 39, U.S. Code, provides for direct appeal to the United States Court of Appeals for the District of Columbia within twenty days of any final decision adverse to the petitioner. Rehearings or administrative appeals to the Post Office Department are neither allowed nor necessary.

(R.S. 161, as amended; 5 U.S.C. 301, 39 U.S.C. 309, 501, 6212) [26 F.R. 11657, Dec. 6, 1961. Redesignated at 33 F.R. 6291, April 25, 1968]

PART 927-RULES OF PROCEDURE RELATING TO FINES, DEDUCTIONS, AND DAMAGES

Sec.

927.1 927.2

Fines, deductions, and damages.
Appeal.

AUTHORITY: The provisions of this Part 927 issued under R.S. 161, as amended, sec. 901, 72 Stat. 783; 5 U.S.C. 301, 39 U.S.C. 309, 501, 6203, 6207, 6208, 6304, 6434, 6435, 49 U.S.C. 1471.

SOURCE: The provisions of this Part 927 appear at 26 F.R. 11658, Dec. 6, 1961, unless otherwise noted. Redesignated at 33 F.R. 6291, April 25, 1968.

§ 927.1 Fines, deductions, and damages. (a) Fines. Where evidence is found or reported against:

(1) Rail and noncontractual steamship and air carriers for unjustified failure to discharge their responsibilities in violation of the applicable provisions of Title 39, or Title 49, U.S. Code, or of the Rules, Regulations and Orders of the Postmaster General issued under those statutory provisions, or for other irregularities or delinquencies;

(2) Mail contractors for failure to observe the contract terms or failure to perform full service, or for other irregularities or delinquencies;

such carriers and contractors, after investigation, are given notice of the irregularity or delinquency, in writing, by