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Federal Register / Vol. 71, No.

47 / Friday, March 10, 2006 / Notices 12405

information permit. Discussions may availability of video teleconferencing Estimated Number of Respondents:
include future Committee Meetings. services is not guaranteed. 100.
Procedures for the conduct of and Dated: March 6, 2006. Estimated Time Per Response: 30
participation in ACNW meetings were minutes.
Andrew L. Bates,
published in the Federal Register on Estimated Total Annual Burden: 50
Advisory Committee Management Officer.
October 11, 2005 (70 FR 59081). In hours.
accordance with these procedures, oral [FR Doc. 06–2319 Filed 3–9–06; 8:45 am] Estimated Federal Cost: $10,075.00.
or written statements may be presented BILLING CODE 7590–01–P Authority for Information Collection:
by members of the public. Electronic Sections 231 and 234 of the Foreign
recordings will be permitted only Assistance Act of 1961, as amended.
during those portions of the meeting OVERSEAS PRIVATE INVESTMENT Abstract (Needs and Uses of
that are open to the public. Persons CORPORATION Information Collected): OPIC is
desiring to make oral statements should conducting a telephone survey of its
notify Mr. Michael P. Lee (Telephone Agency Information Collection clients to determine their satisfaction
301–415–6887), between 8:15 a.m. and Activities: Proposed Collection; with its products and services. OPIC
5 p.m. ET, as far in advance as Comment Request will use the survey results to develop
practicable so that appropriate AGENCY: Overseas Private Investment strategies to improve customer service.
arrangements can be made to schedule Corporation (OPIC). Comments are invited on: (1) Whether
the necessary time during the meeting ACTION: Request for Comments the proposed collection of information
for such statements. Use of still, motion is necessary for the proper performance
picture, and television cameras during SUMMARY: In compliance with the of the functions of OPIC, including
this meeting will be limited to selected Paperwork Reduction Act (44 U.S.C. whether the information collected will
portions of the meeting as determined 3501 et seq.), this document announces have practical utility; (2) the accuracy of
by the ACNW Chairman. Information that OPIC is planning to submit the OPIC’s estimate of the burden of the
regarding the time to be set aside for following proposed information proposed collection of information; (3)
taking pictures may be obtained by Collection Request (ICR) to the Office of ways to enhance the quality, utility, and
contacting the ACNW office prior to the Management and Budget (OMB): OPIC clarity of the information to be
meeting. In view of the possibility that 2006 Client Satisfaction Survey. Before collected; and (4) ways to minimize the
the schedule for ACNW meetings may submitting the ICR to OMB for review burden of the collection of information
be adjusted by the Chairman as and approval, OPIC is soliciting public on respondents, including automated
necessary to facilitate the conduct of the comment on the client survey. collection techniques or the use of other
meeting, persons planning to attend Comments are being solicited on the forms of information technology.
should notify Mr. Lee as to their need for the information, its practical Signature Date: March 7, 2006.
particular needs. utility, the accuracy of the Agency’s
John P. Crowley III,
Further information regarding topics burden estimate, and on ways to
to be discussed, whether the meeting minimize the reporting burden. The Senior Counsel for Administrative Law,
has been canceled or rescheduled, the Department of Legal Affairs.
proposed ICR is summarized below.
Chairman’s ruling on requests for the [FR Doc. 06–2339 Filed 3–9–06; 8:45am]
DATES: All comments must be received
opportunity to present oral statements by OPIC within 60 calendar days from BILLING CODE 3210–01–M
and the time allotted, therefore can be the publication date of this Notice.
obtained by contacting Mr. Lee. ADDRESSES: Information regarding this
ACNW meeting agenda, meeting information collection request and/or a POSTAL RATE COMMISSION
transcripts, and letter reports are copy of the survey questions can be [Docket No. C2004–2; Order No. 1455]
available through the NRC Public obtained from the Agency Submitting
Document Room (PDR) at pdr@nrc.gov, Officer below. Comments on the survey Complaint on Electronic Postmark
or by calling the PDR at 1–800–397– should be submitted to the Agency
4209, or from the Publicly Available AGENCY: Postal Rate Commission.
Submitting Officer.
Records System component of NRC’s ACTION: Notice and order.
document system (ADAMS) which is
accessible from the NRC Web site at OPIC Agency Submitting Officer SUMMARY: This document identifies
http://www.nrc.gov/reading-rm/ preliminary procedural steps in a formal
Essie Bryant, Records Manager, complaint case involving a challenge to
adams.html or http://www.nrc.gov/ Overseas Private Investment
reading-rm/doc-collections/ (ACRS & an electronic postmark service offered
Corporation, 1100 New York Avenue, by the Postal Service. It discusses the
ACNW Mtg schedules/agendas). NW., Washington, DC 20527, telephone
Video Teleconferencing service is basis for the challenge, reviews
(202) 336–8563. pertinent filings, and sets deadlines for
available for observing open sessions of
SUPPLEMENTARY INFORMATION: a submission of a statement by the
ACNW meetings. Those wishing to use
Type of Request: New information complainant and for filing notices of
this service for observing ACNW
collection. intervention. Issuance of this document
meetings should contact Mr. Theron Title: 2006 OPIC Client Satisfaction
Brown, ACNW Audiovisual Technician informs interested parties of the
Survey. Commission’s determinations to date.
(301–415–8066), between 7:30 a.m. and OMB Approval Number: None.
3:45 p.m. ET, at least 10 days before the Frequency of Response: Once per DATES: 1. Deadline for complainant to
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meeting to ensure the availability of this client. provide a statement estimating amount
service. Individuals or organizations Type of Respondents: Individual of time required to develop and file a
requesting this service will be business officer representatives of U.S. direct case: March 20, 2006.
responsible for telephone line charges companies sponsoring projects overseas. 2. Deadline for notices of
and for providing the equipment and Respondent’s Obligation: Voluntary. intervention: March 21, 2006.
facilities that they use to establish the Affected Public: U.S. companies or ADDRESSES: Submit comments
video teleconferencing link. The citizens sponsoring projects overseas. electronically via the Commission’s

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12406 Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Notices

Filing Online system at http:// The motion to dismiss is, however, to dismiss the complaint. In its answer,
www.prc.gov. granted in one respect, specifically, as to the Postal Service, among other things:
FOR FURTHER INFORMATION CONTACT: DigiStamp’s claim that the Postal Denies that electronic postmark is a
Stephen L. Sharfman, general counsel, Service violated section 3661 by failing ‘‘document delivery service;’ ’’ 8
to request an advisory opinion on Clarifies that electronic postmark
at 202–789–6820.
electronic postmark. See section IV, service in ‘‘its current configuration,’’
below. which is offered through a strategic
Regulatory History alliance with AuthentiDate, ‘‘was
I. The Pleadings launched in January, 2003.’’ Id. at 2,
Definition of Postal Services Order, 69
FR 3288 (January 23, 2004). The complaint. DigiStamp’s para. 2 and 5, paras. 14–16;
Definition of Postal Services Proposed complaint contains three principal ∑ Denies any continuing relevance of
Rule, 69 FR 67514 (November 18, 2004). claims. First, DigiStamp alleges that the 18 U.S.C. 1341. Id. at 3, para. 9;
Definition of Postal Services Order, 71 Postal Service is providing electronic ∑ Admits that electronic postmark is
FR 2464 (January 17, 2006). postmark service in violation of the Act. a service provided by the Postal Service.
In a complaint, filed in Docket No. It contends that electronic postmark is Id. at 4, para. 11;
MC2004–2, DigiStamp, Inc. (DigiStamp ∑ Denies that electronic postmark has
a class of mail or type of service and
or Complainant) contends that the incurred a large net loss in its current
thus requires the Postal Service to
Postal Service is providing a document configuration, stating that a large net
request a recommended decision
delivery service called Electronic loss was incurred during the period
pursuant to sections 3622 and 3623 of
Postmark(tm) in violation of the Postal from its inception in 1996 until
the Act before service may be
Reorganization Act.1 It requests, among termination of that configuration. Id. at
implemented or rates charged for the 5, para. 16;
other things, an order from the service.5 It describes electronic ∑ Denies that electronic postmark is a
Commission finding that the ‘‘Postal postmark as ‘‘largely an electronic class of mail, type of mail service, or
Service’s document delivery service service [that] functions as a type of mail service ancillary to mail; id. at 6, paras.
called ‘Electronic Postmark (EPM)’ is a (and a service ancillary to mail), using 17 and 21; and
‘postal service’ subject to the recent technology, to provide evidence ∑ Denies that the Postal Service cross-
[Commission’s] jurisdiction[.]’’ 2 of the time and date of a document subsidizes electronic postmark with
The Postal Service moves to dismiss transmission and security against ‘‘ ‘monopoly revenue.’ ’’ Id. at 12, para.
DigiStamp’s complaint on two grounds. tampering with the contents of the 47.
First, it contends that the Commission document.’’ Id. at 4, para. 21. DigiStamp In moving to dismiss the complaint,
lacks authority to resolve a complaint characterizes electronic postmark as the Postal Service advances two
over the nature of the service provided.3 ‘‘mail,’’ asserting that it substitutes for principal arguments. First, it contends
Second, the Postal Service argues that, hardcopy mail. Ibid. paras. 23–24. that its decision to launch electronic
even assuming the Commission’s Second, DigiStamp contends that the postmark is unreviewable by the
jurisdiction, the complaint should be rates charged for electronic postmark Commission.9 This assertion rests on
dismissed since electronic postmark is fail to comply with section 3622(b).6 It the premise that the Postal Service’s
not a postal service.4 asserts that the Postal Service is offering unilateral classification of a service as
The motion to dismiss is denied
electronic postmark in competition with ‘‘nonpostal’’ is dispositive and is
because, as discussed in detail below,
companies in the private sector, reviewable, if at all, only by a United
the Commission: (a) Rejects the Postal
including DigiStamp, providing similar States district court. Id. at 3.
Service’s contention that the Second, the Postal Service argues that,
Commission lacks authority to service. Id. at 7, paras. 43–44. DigiStamp
further alleges that the Postal Service is even assuming the Commission has
determine the scope of its own authority to determine whether
jurisdiction; and (b) finds that the cross-subsidizing electronic postmark
service ‘‘with monopoly revenues electronic postmark is a postal service,
parties’ conflicting claims whether ‘‘EPM is not a ‘postal service’ for
electronic postmark is or is not a postal [which] may inhibit competition to the
detriment of consumers of all such purposes of sections 3622, 3623, 3661,
service raise genuine issues of material and 3662 of title 39, United States
fact that require a hearing in conformity services.’’ Ibid. para. 47.
Third, DigiStamp contends that the Code.’’ Id. at 6. In support, the Postal
with § 3624. See sections II and III, Service highlights ‘‘the primary
below. To that end, the Complainant is provision of electronic postmark
violates section 3661,7 asserting that precedents,’’ which include the ATCMU
directed to file a statement, no later than and NAGCP I 10 opinions and the
March 20, 2006, estimating the amount electronic postmark may affect the use
of other mail services, e.g., First-Class Commission’s decisions in Docket Nos.
of time it will require to develop and R76–1, C95–1, and C96–1. Based on its
file a case-in-chief. Thereafter the Mail, registered or certified mail,
because it will be used in lieu of such review, the Postal Service concludes
Commission will issue a procedural that these authorities stand for the
schedule and, if warranted, special rules services. Ibid. para. 49. DigiStamp
asserts that providing electronic proposition that ‘‘such services [to be
of practice. deemed a postal service] must bear, at
postmark service therefore represents a
1 Complaint of DigiStamp, February 25, 2004 change in the nature of postal services minimum, some relation to hardcopy
(Complaint). On its Web site, the Postal Service which will generally affect service on a postal delivery networks.’’ 11
refers to this service as ‘‘USPS Electronic nationwide or substantially nationwide
Postmark(tm) (EPM).’’ For purposes of this Order, 8 Answer of the United States Postal Service,

the service will be referred to as electronic basis. April 26, 2004, at 2, para. 2 (Postal Service Answer).
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postmark or USPS EPM. The Postal Service’s responses. 9 Motion to Dismiss at 2–3.
2 Motion to Notify the Postal Rate Commission of
Concurrently, the Postal Service filed an 10 Associated Third Class Mail Users v. U.S.
a Recent Example Where the Use of USPS EPM answer to the complaint and a motion Postal Service, 405 F. Supp. 1109 (D. D.C. 1975)
Replaces Traditional Mail Service, November 12, (ATCMU), affirmed, National Association of
2004, at 1 (DigiStamp Motion). Greeting Card Publishers v. U.S. Postal Service, 569
3 Motion of the United States Postal Service to 5 Complaint at 4–5, paras. 17–29. F.2d 570 (D.C. Cir. 1976) (NAGCP I), vacated on
Dismiss, April 26, 2004, at 2–5 (Motion to Dismiss). 6 Id. at 5–7, paras. 48–53. other grounds, 434 U.S. 884 (1977).
4 Id. at 6–17. 7 Id. at 5–7, paras. 30–47. 11 Motion to Dismiss at 7.

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Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Notices 12407

In addition, the Postal Service preclude review by the Commission via It contends that the ‘‘specific
contends that electronic postmark the complaint process. Id. at 4–5. application of UETA in South Carolina
service is not a postal service because it Regarding the Postal Service’s second excludes any service provider other
is entirely electronic and, further, does principal argument—that even assuming than the Postal Service.’’ Id. at 2.
not deliver anything between senders Commission authority to consider the
DigiStamp also asserts that ‘‘EPM
and recipients. Id. at 12–13. The Postal complaint, electronic postmark is not a
postal service—DigiStamp contends that software and service [include] what has
Service describes the purpose of
the issue is a matter for hearing. Id. at been historically marketed as the
electronic postmark service as being ‘‘to
protect the integrity of electronic data.’’ 6–14. In support, DigiStamp, among Electronic Courier Service.’’ Ibid.
Id. at 13. The Postal Service states that other things: Stating that the Postal Service had
electronic postmark service neither ∑ Cites several examples from a discontinued the latter line of business
requires nor accomplishes the Postal Service press release comparing in November 2002, but subsequently re-
transmission of content. Id. at 14. Thus, the similarities of electronic postmark to entered it in July 2004, DigiStamp
the Postal Service contends that, since mail service, e.g., ‘‘ ‘creating the first in asserts that ‘‘EPM is now being
nothing moves between the sender and a series of ‘First-Class’ Mail electronic combined with other communications
recipient, ‘‘it is impossible to construe commerce services[,]’ ’’ and ‘‘the Postal functions to operate as Electronic
any ‘carriage of mail’ that is the sine qua Service is developing ‘‘ ‘a series of Courier Service under a new name.’’ Id.
non of a postal service.’’ Id. 14–15. services to mirror those of First-Class at 3. It requests that this allegation be
The Postal Service notes that that Mail.’ ’’ Id. at 8, citing Exhibit A to the made part of its complaint. Ibid. The
electronic postmark service may Complaint; 14 Postal Service did not file an answer to
‘‘enhance the utility of subsequent ∑ Contends that electronic postmark this motion.
electronic document exchange,’’ service adds value to the mail similar to
other security and evidentiary features II. The Commission’s Jurisdiction To
describing the ‘‘EPM process [as] often
such as certified and registered mail. Id. Consider Complaints
a step towards broader participation in
electronic commerce, and other varieties at 9;
∑ Disputes the Postal Service’s The complaint alleges that electronic
of electronic information transmission.’’ postmark is a postal service and
Id. at 15. It characterizes electronic contention that electronic postmark
service does not entail ‘‘ ‘the transfer of therefore the Postal Service should have
postmark service as ‘‘a wholly requested a recommended decision
independent transaction,’’ not ancillary something from a sender to a recipient,’
* * * indicat[ing] a product ancillary to before initiating service. The Postal
to the electronic information Service argues that the Commission
transmission.12 mail.’’ Ibid.;
∑ Quotes material from the Postal lacks ‘‘authority to approve or review
DigiStamp’s answer to the motion. the Postal Service’s exercise of its
DigiStamp filed an answer opposing Service’s web site which, DigiStamp
contends, suggests the Postal Service independent authority to carry out its
the Postal Service’s motion to dismiss.13
views ‘‘EPM service as a substitute for own powers and duties under the
It addresses each of the Postal Service’s
traditional services.’’ Ibid.; statute.’’ 16 The issue raised by the
principal claims. First, DigiStamp
∑ Cites Postal Service advertising complaint is not whether the Postal
contests the Postal Service’s conclusion
claims implying an ancillary Service’s action is lawful or not; rather
that the Commission lacks authority to
relationship to hard-copy mail and it is whether electronic postmark service
determine the scope of its own
imbuing electronic postmark service is a postal service, a matter
jurisdiction as well as its
with characteristics reserved only for appropriately before the Commission.
characterization of the issue as entailing
mail service. Id. at 10; and
approval or review of the Postal ∑ Contends that the status of In Docket No. RM2004–1, the
Service’s exercise of its independent electronic postmark service as a postal Commission proposed and, after several
authority under the Postal service or not ‘‘requires a hearing into rounds of comments, subsequently
Reorganization Act. Id. at 2–3. the specific facts surrounding this adopted an amendment to its rules of
DigiStamp also contends that the Postal service[.]’’ Id. at 14–15. practice defining the term postal service
Service mischaracterizes the complaint DigiStamp also moves to supplement as follows: Postal service means the
by misreading section 3662. According its complaint with information not receipt, transmission, or delivery by the
to DigiStamp, the complaint is not available when the complaint was Postal Service of correspondence,
primarily about the lawfulness of filed.15 The motion indicates that the including, but not limited to, letters,
electronic postmark service, but Postal Service’s electronic postmark printed matter, and like materials;
whether the Postal Service must obtain service has been added to South mailable packages; or other services
Commission review and a Carolina’s Uniform Electronic incidental thereto. See PRC Order No.
recommended decision prior to Transactions Act (UETA) as an 1449, January 4, 2006. This definition
commencing a new postal service. Id. at alternative to certified or registered mail became effective February 16, 2006.
3–4. Further, DigiStamp counters the for certain types of electronic
Postal Service’s claim that review, if The rulemaking proceeding was
communications, e.g., process of initiated, in large part, because the
any, is available only by a U.S. district service. Id. at 1–2. DigiStamp represents
court, arguing that the statute does not Commission determined that the
that the electronic service has the ‘‘same
jurisdictional implications of a spate of
force of law and legal effect as those
12 Ibid. In an accompanying footnote, the Postal new services implemented unilaterally
Service briefly discusses the ‘‘superficial physical mail services.’’ Id. at Exhibit A.
by the Postal Service would be most
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resemblance’’ between electronic postmark service

and money orders, discounting the appropriateness 14 DigiStamp acknowledges that the press release efficaciously addressed by rule rather
of any such comparison. Id. at 15, n.12. It also relates to a superseded version of the service, but
compares electronic postmark service with services asserts that there has been no showing that the 16 Motion to Dismiss at 1. As a variation of this
provided by a notary public. Id. at 15–16. essential elements of the current service are claim, the Postal Service argues that the
13 DigiStamp Answer in Response to Motion of significantly different. Id. at 8. Commission lacks authority ‘‘to declare
the United States Postal Service to Dismiss, May 3, 15 See DigiStamp Motion, supra, November 12, independent actions of the Postal Service to be
2004 (DigiStamp Answer). 2004. either lawful or unlawful.’’ Id. at 3.

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12408 Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Notices

than on an ad hoc basis.17 In Docket No. user of the service. DigiStamp’s claim of under section 3662, an election made by
RM2004–1, based on a detailed analysis unfair competition goes to this issue.21 DigiStamp.
of statute, legislative history, precedent, The gravamen of the complaint, Second, the court’s jurisdiction is not
and the parties’ comments, the according to the Postal Service, is exclusive. See 39 U.S.C. 409(a). (‘‘[T]he
Commission rejected the Postal unrelated to the rates being charged, United States district courts shall have
Service’s contention that the ‘‘but [rather] whether the Postal Service original but not exclusive jurisdiction
Commission lacked authority to acted lawfully when offering USPS EPM over all actions brought by or against the
determine the scope of its own without a recommended decision from Postal Service.’’) Furthermore, section
jurisdiction. Consequently, the the Commission.’’22 The Postal Service 409(a) expressly exempts cases covered
Commission finds it unnecessary to mischaracterizes the complaint. by section 3628 from its reach, thus
revisit that issue, choosing instead to DigiStamp contends that electronic assuring the Commission’s primary
incorporate by reference its findings and postmark is a postal service. Its jurisdiction over postal rate and
conclusions from that rulemaking.18 complaint satisfies the elements of classification matters. In sum, nothing
section 3662 by raising both rate and in the statute either precludes a
Section 3662 provides interested complainant from electing to proceed
parties an independent means to bring service issues. It may be that the latter
become moot if the Commission under section 3662 or bars the
rate and classification matters before the Commission from considering, on
Commission between rate cases. A concludes that electronic postmark is
not a postal service, but that conclusion complaint, the jurisdictional status of
complaint will lie if the interested party the subject service.24
believes that ‘‘the Postal Service is (or any other jurisdictional finding
made by the Commission) is not, as the The court cases relied upon by the
charging rates which do not conform to Postal Service stand for the proposition
the policies set out in [title 39] or * * * Postal Service would characterize it,
synonymous with finding the Postal that the services there at issue fell
that [he/she is] not receiving postal within the Commission’s jurisdiction. In
service in accordance with the policies Service’s actions lawful or unlawful.
the first two omnibus rate cases, the
of this title[.]’’ If, in its discretion, the Rather, the result is a product of the
Postal Service did not propose any
Commission holds hearings, its Commission acting properly under the
changes in special service fees. The
response is dependent, in the first statute to determine the scope of its own
Commission, nonetheless, asserted its
instance, on finding the complaint to be jurisdiction.
jurisdiction over special services.25 That
justified and, secondly, on whether the The Postal Service argues its decision issue, however, did not come to a head
subject matter of the complaint is not to seek a recommended decision is until the Postal Service proposed a
covered by subchapter II of title 39. unreviewable by the Commission and unilateral increase in special service
Subchapter II encompasses rate and that review, if any, may be obtained by fees in 1975. The litigation that
classification matters. DigiStamp only by filing suit in a ensued—ATCMU and NAGCP I—
United States district court. Id. at 2–3. resolved the issue whether those
DigiStamp’s complaint includes both
The Postal Service argues that its services were postal or not and, in doing
rate and classification elements. It
position is supported by ‘‘the so, confirmed that the Commission had
complains that the rates charged for
contemporaneous interpretation’’ of the primary jurisdiction over postal rate and
electronic postmark service do not
Act ‘‘immediately following postal classification matters, including
conform to the policies of title 39 since:
reorganization.’’ Id. at 3. Citing the determining the scope of its own
(a) The Postal Service implemented
ATCMU case, it concludes that ‘‘district jurisdiction. In discussing the ‘‘great
service and began charging rates
courts are available to address and deference [a reviewing court must give]
without first obtaining a recommended
resolve the exact issue upon which the to the interpretation given a statute by
decision from the Commission; (b) the
DigiStamp complaint must hinge.’’23 the agency charged with its
rates charged do not comply with
While this statement is accurate administration,’’ the NAGCP I court
section 3622(b); and (c) the rates for
regarding the availability of district observed, ‘‘[t]he district court, in short,
electronic postmark service are being
court review, it does not get the Postal without expressly stating so might
Service very far. simply have deferred to a long-held and
DigiStamp’s classification claim, that First, that parties in prior cases reasonable interpretation given the
the Postal Service has failed to comply challenged certain services as postal by statute by the very agency [the
with section 3623,20 also bears on the filing in district court rather than with
issue whether ‘‘postal service’’ is being the Commission is not dispositive of 24 The Postal Service also cites Order No. 724 as
received in accordance with the policies subsequent complainants’ choice of lending support for its contention that the district
of title 39. That facet of the complaint forum. They are free to elect to proceed court is the only forum in which this complaint
is framed in terms of a competitor, not may be heard. Its reliance on Order No. 724 is
misplaced. The Postal Service suggests that in
21 See Complaint at 3–4, para. 13, 7, para. 45, and
Order No. 724 the Commission ‘‘redirect[ed] parties
17 PRC Order No. 1389, January 16, 2004, at 8; Exhibit G. initiating complaints under section 3662 to district
PRC Order No. 1424, supra, at 3 and PRC Order No. 22 Motion to Dismiss at 2. court.’’ Motion to Dismiss at 4. In fact, however, the
1449, supra, at 16–17. 23 Ibid. (footnote omitted). Regarding the ATCMU Commission asserted jurisdiction over the
18 See PRC Order No. 1424, November 12, 2004,
case, the Postal Service asserts that it initially took complaint filed in that proceeding. The language
at 6–39, and PRC Order No. 1449, supra, at 5–21. the position that ‘‘all special services were relied on by the Postal Service is taken out of
The Postal Service Motion to Dismiss predated both ‘nonpostal’ and [thus] excluded from Commission context and does not support the Postal Service’s
of the foregoing orders. Postal Service arguments in jurisdiction.’’ Ibid. That contention appears to position. The passages cited by the Postal Service
this proceeding reiterated arguments it advanced in misstate the Postal Service’s argument regarding the concern a challenge to a Postal Service regulation
Docket No. RM2004–1. The merits of its arguments special services at issue in that case. The Postal issued in the Domestic Mail Manual. The
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were thoroughly considered in the latter docket. Service did not argue that those special services Commission found that the regulation did not raise
19 See Complaint at 4–8, paras. 20, 27–29, 42, 45– a classification issue and therefore was outside its
were nonpostal. Rather, it argued, inter alia, that
47, and 54. DigiStamp’s allegations of an unlevel those services were not subject to the requirements jurisdiction. The relevant point, however, is that the
playing field may have implications for whether or of chapter 36 of the Act and further that ‘‘special’’ Commission did decide the jurisdictional issue in
not the Postal Service’s provision of this service has services were exempt from the Commission’s that proceeding, the very result that DigiStamp
a substantial public effect. See ATCMU, supra, 405 jurisdiction by virtue of section 404(a)(6). See urges in this proceeding.
F. Supp. at 1115. ATCMU, supra, 405 F. Supp. at 1116–18. The court 25 See, e.g., PRC Op. R74–1, August 28, 1975,
20 Complaint at 4–5, paras. 19, and 27–29. rejected the Postal Service’s arguments. Appendix F.

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Commission] whose jurisdiction is at of content.30 The Postal Service argues nation together through the * * *
issue.’’26 that ‘‘[t]here is no necessary linkage correspondence of the people;’’ and the
between application of an USPS EPM to history of providing postmarks with
III. Issues of Material Fact
electronic data, and the transmission of legal significance. Ibid.
The Postal Service’s contention that that data between a sender and a In addition, the web site also lists
electronic postmark service is a recipient.’’ Ibid. According to the Postal various criminal statutes applicable to
nonpostal service has two prongs: First, Service, this is not meant to imply that the Postal Service’s electronic postmark,
that it is a totally electronic service and, electronic postmark service could not be e.g., 18 U.S.C. 1343 concerning wire
second, that it does not entail the used to ‘‘enhance the utility of fraud, and 18 U.S.C. 2510 concerning
transfer of something from a sender to subsequent electronic document electronic communications. See http://
a recipient, which the Service exchange.’’ Id. at 15. The Postal Service www.usps.com/electronicpostmark
characterizes as the essence of a postal views electronic postmark service as a /benefits.htm. DigiStamp argues that by
function.27 It contends that ‘‘either of totally independent transaction, not extending the criminal statutes designed
these facts would be sufficient to ancillary to any electronic transmission. to protect mail to electronic postmark
demonstrate that USPS EPM is not a It compares electronic postmark with service, the Postal Service gives ‘‘EPM
postal service.’’ Ibid. notarial services, noting that the the status of a mail service.’’ Ibid. The
That electronic postmark service is Commission previously found notary Postal Service acknowledges that, at the
totally electronic is not conclusive of public services by postmasters in Alaska time the complaint was filed, the web
whether or not it is a postal service. to be nonpostal. Id. at 15–16. site did include a reference to 18 U.S.C.
Currently, the Postal Service offers For its part, DigiStamp refers to a 1341, concerning mail fraud. It states,
several wholly electronic services that 1996 Postal Service press release that however, that the reference was
are postal services, e.g., electronic characterizes electronic postmark inadvertent, has been removed, and
return receipt, Confirm, and Delivery service in terms of its postal or mail-like denies that section 1341 has any
Confirmation. Moreover, this issue was attributes, including, for example, continuing relevance to this matter.34
specifically addressed in Docket No. describing electronic postmark as the DigiStamp describes the Postal
RM2004–1 in orders issued subsequent first in ‘‘a series of services to mirror Service’s electronic postmark as a
to the Postal Service’s filing of its those of First-Class Mail.’’ 31 The Postal document delivery service, a
motion to dismiss. The Commission Service denies that this press release characterization that the Postal Service
concluded that services in which the ‘‘accurately describes the current status rejects, arguing that there is ‘‘no
Postal Service receives, transmits, or of, or its current expectation regarding, necessary linkage’’ between application
delivers correspondence, including the Postal Service’s programs in these of the electronic postmark to data and
electronic communication services, areas.’’ 32 This denial, however, does not the transmission of that data.35
constitute postal services under the resolve the factual dispute between the DigiStamp takes issue with the Postal
Act.28 The Commission noted, however, parties. That the ‘‘current status’’ is Service’s statement. It notes that the
that ‘‘inclusion of [electronic] services different from what it may have been Postal Service’s previously mentioned
in the definition should not be read as does not reveal what it has become or press release specifically states that a
a conclusion that all such services are how it is different. Nor does the denial third party sends the electronically
jurisdictional; only such services that shed any light on the Postal Service’s postmarked message to the recipient
entail correspondence become postal current expectations. Moreover, as ‘‘ ‘via a value-added network.’ ’’ 36
services.’’ Id. at 4. Consequently, DigiStamp observes, the Postal Service DigiStamp asserts that electronic
whether or not electronic postmark has not shown that its strategic alliance postmark service adds value similar to
service is postal or not turns on the with AuthentiDate, apparently that of various special services, such as
nature of the service provided. commenced in 2003, effects any certified mail, registered mail, and
The Postal Service and DigiStamp significant change in the elements of the signature confirmation.37 DigiStamp
offer significantly different views on the service.33 concludes, contrary to the Postal
nature of the service itself. The parties DigiStamp also cites statements Service’s characterization, that ‘‘there
agree, however, that electronic contained on the Postal Service web site will nevertheless apparently be the
postmark: Features the use of auditable which it contends give the impression ‘transfer of something from a sender to
time stamps, digital signatures, and that electronic postmark is, at a a recipient’ * * * indicat[ing] a product
hash codes; provides proof (as minimum, ‘‘a service ancillary to the ancillary to mail.’’ Ibid.
postmarked by the Postal Service) for a Postal Service’s historical activity of Elsewhere, DigiStamp expands on its
third party to verify the authenticity of carrying the mail.’’ Id. at 10. These contention that electronic postmark is a
the electronic postmark item’s content; include attributing unique postal value-added service, arguing that it has
provides evidence to support non- statutory attributes to electronic the attributes of a special service. Id. at
repudiation of the item’s content; and is postmark service such as:
designed to deter and detect any ‘‘ ‘correspondence handled by USPS [is] 34 Postal Service Answer at 3, para. 9. The Postal

tampering or alteration of the item’s subject to confidentiality statutes and Service suggests that criminal interference with the
content.29 They differ in almost all other regulations;’ ’’ referencing the mandate operation of the Postal Service’s electronic
postmark service may be subject to investigation by
respects about the nature of electronic of section 101 of the Act ‘‘to bind the the United States Postal Inspection Service and to
postmark service. prosecution under several federal statutes. Id. at 4,
The Postal Service states that 30 Motion to Dismiss at 14. para. 11.
31 Complaint at Exhibit A; see also DigiStamp 35 Compare Complaint at 4, para. 12 and Postal
electronic postmark service neither
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Answer at 7–9. In addition, the press release Service Answer at 2, para. 2; and see Motion to
requires nor accomplishes transmission identifies future electronic services such as return Dismiss at 14.
receipt, certified, registered, and verification of the 36 DigiStamp Answer at 9; see also Complaint,
26 NAGCP I, supra, 569 F.2d. at 595, n.110. sender and recipient, each of which, DigiStamp Exhibit A.
27 Motion to Dismiss at 12. contends, are already deemed to be postal services. 37 DigiStamp Answer at 9. As relates to its third
28 PRC Order No. 1424, supra, at 31–39. DigiStamp Answer at 8. claim, DigiStamp argues that electronic postmark
29 See Complaint at 1, para. 3 and Postal Service 32 Postal Service Answer at 3, para. 6.
service may even replace or cannibalize some
Answer at 2. 33 DigiStamp Answer at 8. special services. Ibid.

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11. DigiStamp compares electronic legislation adopting the UETA,40 postmark will generally affect service on
postmark service to money orders, DigiStamp alleges that electronic a nationwide basis. Id. at 7–8, paras. 49–
noting that transactions involving the postmark software and service 50.
latter may be independent of subsequent ‘‘includes what has been historically The Postal Service addresses the
mailing.38 In response to the Postal marketed as the Electronic Courier claim in a footnote, arguing that the
Service’s discussion of notarial services, Service.’’ Ibid. It provides a brief claim is without merit because section
DigiStamp argues that the mails can timeline of the latter, noting that Docket 3661 does not apply to nonpostal
serve a similar purpose suggesting the No. C99–1 was dismissed when the services.42 In addition, the Postal
postmark and certified delivery offer Postal Service exited that business, but Service argues that, while unstated by
third-party proof that a document contending ‘‘that EPM is now being DigiStamp, this claim must be in the
existed or was received on a specific combined with other communications alternative to the first claim ‘‘because
date. Implicitly acknowledging that the functions to operate as Electronic there is no basis in the Act * * * that
comparison may be less than perfect, Courier Service under a new name.’’ Id. a new service proposed to be
DigiStamp’s larger point appears to be at 3. It requests that its complaint be established in accordance with sections
that the legal implications of the effects broadened to include this allegation. As 3622–3625 also be the subject of a
of changing technology on services noted above, the Postal Service did not request for an advisory opinion
offered by the Postal Service must be respond to this motion. The relationship pursuant to section 3661.’’ Ibid.
considered and that hearings on its between these two services may be DigiStamp does not address the Postal
complaint are an appropriate forum for addressed at the hearings. However, if Service’s arguments in its reply to the
doing so. DigiStamp Answer at 11–12. no nexus is demonstrated between the Service’s motion to dismiss.
Based on the pleadings, the two services, the Commission reserves
It is not apparent that premising this
Commission is unable to determine the right to limit the issues to the
claim on electronic postmark being a
whether electronic postmark service is original complaint.
In Docket No. RM2004–1, the postal service is necessary to support a
or is not a postal service. The parties’ claim based on section 3661. If the
sharply contrasting contentions Commission adopted a definition of the
term postal service. That definition Commission finds electronic postmark
regarding the nature of the service service to be a postal service, section
cannot be resolved on this record. Thus, became effective February 16, 2006. In
light of this and in summary fashion, 3623, change in mail classification,
it would be premature to grant the would apply, rather than section 3661,
Postal Service’s motion to dismiss. The the task of the parties in this proceeding
is to develop a record demonstrating concerning a change in the nature of
facts necessary to support the parties’ postal services. On the other hand, if
contentions need to be developed on the that, by the nature of the service
provided, electronic postmark falls electronic postmark is found not to be
record. a postal service, section 3661 may apply
Each party challenges the other’s within (or outside) that meaning. The
parties’ contentions lack factual support if, as DigiStamp alleges, there is a
characterization of the service. For nationwide or substantially nationwide
example, the Postal Service argues that needed before the Commission can
fairly determine whether electronic affect on existing postal services.
electronic postmark service can be Nonetheless, since DigiStamp premises
viewed as a stand-alone service, and postmark service is (or is not) a postal
service. In addition to the foregoing, the its third claim on electronic postmark
that it is independent of transmission. It being a postal service and further chose
suggests that the non-electronic service parties may also wish to develop a
record, to the extent deemed relevant, not to reply to the Postal Service’s
most analogous to electronic postmark arguments, the Commission will dismiss
is notarial service.39 on the experience of foreign posts in
offering electronic postmark as a postal this claim from this proceeding without
DigiStamp counters that apparently prejudice to reconsidering this issue, on
service or not. Accordingly, the
something is transferred between the motion or otherwise, should the record
Commission shall set this matter for
sender and recipient. In addition, developed herein support it.43
DigiStamp touts electronic postmark’s
value-added properties, contending that IV. DigiStamp’s Third Claim V. Procedural Matters
electronic postmark service has Neither party devotes much attention Hearing. For the reasons discussed
attributes indistinguishable from to DigiStamp’s third claim, that the above, the Commission concludes that
recognized special services such as Postal Service failure to request an consideration of DigiStamp’s complaint
return receipt, certified mail, registered advisory opinion on electronic postmark is authorized under 39 U.S.C. 3662.
mail, and verification of the sender and service violates 39 U.S.C. 3661. Accordingly, this matter will be set for
recipient. DigiStamp predicates this claim on hearing.
Furthermore, in its supplemental electronic postmark being a postal Notice. Pursuant to Rule 17 of the
motion addressing South Carolina’s service.41 It argues that electronic Commission’s rules of practice and
postmark service may have an adverse procedure, 39 CFR 3001.17, this order
38 The Postal Service, too, discusses money
affect on the use of various mail provides notice of this proceeding.
orders, arguing that, unlike purchasers of electronic
postmark service, purchasers are unlikely to use services, such as First-Class Mail,
money orders other than to transfer funds from one Express Mail, Certified Mail, Return 42 Motion to Dismiss at 2, n.1.
person or entity to another. It contends that ‘‘[t]he Receipt, and Delivery Confirmation. 43 A similar issue arose in Docket No. C99–1. The
broad range of potential applications of EPMs DigiStamp contends that by Commission found that considering the issue would
precludes any such facile analysis.’’ Motion to not exceed the scope of its authority under section
Dismiss at 15, n.12. cannibalizing these services, electronic 3662, noting that ‘‘to the extent that the § 3662
dsatterwhite on PROD1PC65 with PROPOSAL

39 Motion to Dismiss at 15–16. The Postal Service complaint mechanism has been viewed as a
40 DigiStamp Motion, supra, at 2. Under the
also suggests that electronic postmark may be remedial supplement to the review of substantially
applied to electronic data intended to be stored in legislation, USPS EPM applied e-mails may be used nationwide service changes required under § 3661,
the user’s own files; for example, a doctor might as an alternative to certified or registered mail for consideration of a Postal Service action purportedly
apply it to electronic notes of patient records on a certain types of electronic communications. in violation of § 3661 in a complaint proceeding
daily basis to verify, if required, that the records DigiStamp contends that the Postal Service is the appears compatible with the statutory scheme of the
were created contemporaneously with the patient’s exclusive electronic postmark provider. Ibid. Reorganization Act.’’ PRC Order No. 1239, May 3,
visit. Id. at 14. 41 Complaint at 7, para. 48. 1999 at 14 (footnote omitted).

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Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Notices 12411

Intervention. Those wishing to be 7. The Secretary shall arrange for registered under Section 12(b) of the
heard in this matter are directed to publication of this Order in the Federal Act.4
submit a notice of intervention, on or Register. Any interested person may, on or
before March 21, 2006, via the By the Commission. before March 29, 2006, comment on the
Commission’s Filing Online system, Steven W. Williams, facts bearing upon whether the
which can be accessed electronically at
Secretary. application has been made in
http://www.prc.gov. Persons needing
assistance with Filing Online may [FR Doc. E6–3403 Filed 3–9–06; 8:45 am] accordance with the rules of CHX, and
contact the Commission’s Docket BILLING CODE 7710–FW–P what terms, if any, should be imposed
Section at 202–789–6846. Notices shall by the Commission for the protection of
indicate whether participation will be investors. All comment letters may be
on a full or limited basis. See 39 CFR SECURITIES AND EXCHANGE submitted by either of the following
3001.20 and 3001.20a. COMMISSION methods:
Statement. To facilitate the Electronic Comments
development of a procedural schedule [File No. 1–00043]
for this docket, DigiStamp is directed to
Issuer Delisting; Notice of Application • Send an e-mail to rule-
provide a statement, due on or before comments@sec.gov. Please include the
of General Motors Corporation To
March 20, 2006, estimating the amount File Number 1–00043
Withdraw Its Common Stock, $12⁄3 Par
of time it will require to develop and
Value, From Listing and Registration or;
file a case-in-chief. The Commission
on the Chicago Stock Exchange, Inc.
will thereafter issue a procedural Paper Comments
File No. 1–00043
schedule and, if need be, special rules
of practice. March 6, 2006. • Send paper comments in triplicate
Representation of the general public. On March 2, 2006, General Motors to Nancy M. Morris, Secretary,
In conformance with § 3624(a) of title Corporation, a Delaware corporation Securities and Exchange Commission,
39, the Commission designates Shelley (‘‘Issuer’’), filed an application with the 100 F Street, NE., Washington, DC
S. Dreifuss, director of the Securities and Exchange Commission 20549–1090.
Commission’s Office of the Consumer (‘‘Commission’’), pursuant to Section
Advocate, to represent the interests of All submissions should refer to File
12(d) of the Securities Exchange Act of
the general public in this proceeding. Number 1–00043. This file number
1934 (‘‘Act’’) 1 and Rule 12d2–2(d)
Pursuant to this designation, Ms. should be included on the subject line
thereunder,2 to withdraw its common
Dreifuss will direct the activities of if e-mail is used. To help us process and
stock, $12⁄3 par value (‘‘Security’’), from
Commission personnel assigned to listing and registration on the Chicago review your comments more efficiently,
assist her and, upon request, will supply Stock Exchange, Inc. (‘‘CHX’’). please use only one method. The
their names for the record. Neither Ms. The Administrative Committee of the Commission will post all comments on
Dreifuss nor any of the assigned Issuer’s Board of Directors (‘‘Board’’) the Commission’s Internet Web site
personnel will participate in or provide approved a resolution on September 9, (http://www.sec.gov/rules/delist.shtml).
advice on any Commission decision in 2005, to delist the Security from listing Comments are also available for public
this proceeding. and registration on CHX. The Issuer inspection and copying in the
Public notice. The Commission stated that the purposes for seeking to Commission’s Public Reference Room.
directs the Secretary to arrange for delist the Security from CHX are to All comments received will be posted
publication of this order in the Federal avoid dual regulatory oversight and dual without change; we do not edit personal
Register. listing fees. The Security is traded, and identifying information from
Ordering Paragraphs will continue to trade on the New York submissions. You should submit only
Stock Exchange, Inc. (‘‘NYSE’’). In information that you wish to make
It is ordered: addition, the Issuer stated that CHX available publicly.
1. The Motion of the United States advised the Issuer that the Security will
Postal Service to Dismiss, filed April 26, The Commission, based on the
continue to trade on CHX under information submitted to it, will issue
2004, is denied, in part, and granted, in unlisted trading privileges.
part, as set forth in the body of this an order granting the application after
The Issuer stated in its application
order. the date mentioned above, unless the
that it has complied with applicable
2. Proceedings in conformity with 39 Commission determines to order a
rules of CHX by providing CHX with the
U.S.C. 3624 shall be held in this matter. hearing on the matter.
required documents governing the
3. The Commission will sit en banc in For the Commission, by the Division of
withdrawal of securities from listing
this proceeding. Market Regulation, pursuant to delegated
and registration on CHX. The Issuer’s
4. Notices of intervention are due no authority.5
application relates solely to the
later than March 21, 2006.
withdrawal of the Security from listing Nancy M. Morris,
5. Shelley Dreifuss, director of the
on CHX and shall not affect its Secretary.
Commission’s Office of the Consumer
continued listing on NYSE, the Pacific [FR Doc. E6–3436 Filed 3–9–06; 8:45 am]
Advocate, is designated to represent the
Exchange, Inc. (‘‘PCX’’), or the
dsatterwhite on PROD1PC65 with PROPOSAL

interests of the general public in Docket BILLING CODE 8010–01–P

Philadelphia Stock Exchange, Inc.
No. C2004–2.
(‘‘PHLX’’),3 or its obligation to be
6. Complainant shall provide a
and registration on PCX and PHLX on February 23,
statement, due on or before March 20, 1 15 U.S.C. 78l(d). 2006 and February 27, 2006, respectively. Notice of
2006, estimating the amount of time it 2 17 CFR 240.12d2–2(d). such applications will be published separately.
will require to develop and file a direct 3 The Issuer filed applications with the 4 15 U.S.C. 78l(b).

case in this proceeding. Commission to withdraw the Security from listing 5 17 CFR 200.30–3(a)(1).

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