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USPS' Proposed Rule To Amend Regulations for Closing/Consolidating Post Offices

USPS' Proposed Rule To Amend Regulations for Closing/Consolidating Post Offices

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Published by PostalReporter.com
USPS Proposed Rule On Amending Regulations for Closing/Consolidating Post Offices
USPS Proposed Rule On Amending Regulations for Closing/Consolidating Post Offices

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Published by: PostalReporter.com on Mar 29, 2011
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03/31/2011

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This section of the FEDERAL REGISTERcontains notices to the public of the proposedissuance of rules and regulations. Thepurpose of these notices is to give interestedpersons an opportunity to participate in therule making prior to the adoption of the finalrules.
Proposed Rules
Federal Register
17794
Vol. 76, No. 62Thursday, March 31, 2011
POSTAL SERVICE39 CFR Part 241Post Office Organization andAdministration: Establishment,Classification, and Discontinuance
AGENCY
:
Postal Service.
ACTION
:
Proposed rule.
SUMMARY
:
This proposed rule wouldamend postal regulations to improve theadministration of the Post Office closingand consolidation process. In addition,certain procedures employed for thediscontinuance of Post Offices would beapplied to the discontinuance of othertypes of retail facilities operated byPostal Service employees.
DATES
:
Comments must be received onor before May 2, 2011.
ADDRESSES
:
Written comments shouldbe mailed or delivered to the Manager,Customer Service Standardization,ATTN: Retail Discontinuance, 475L’Enfant Plaza SW., Room 6816,Washington, DC 20260–6816. Copies of all written comments will be availablefor inspection and photocopyingbetween 9 a.m. and 4 p.m., Mondaythrough Friday, in the Postal ServiceLibrary, at the above address.Arrangements should be made inadvance for inspection by contacting(202) 268–2900.
FOR FURTHER INFORMATION CONTACT
:
Annette Raney, (202) 268–4307.
SUPPLEMENTARY INFORMATION
:
The PostalReorganization Act of 1970 directs thePostal Service to establish and maintainpostal facilities
‘‘
of such character andin such locations that postal patronsthroughout the nation will, consistentwith reasonable economies of postaloperations, have ready access toessential postal services.
’’
39 U.S.C.403(b)(3). The 1976 amendments to thePostal Reorganization Act (PRA),codified in former section 404(b) of title39 of the U.S. Code, require that thePostal Service provide adequate noticeto customers of its intention to close orconsolidate a Post Office
TM
. (Thecodified statute was re-designated as 39U.S.C. 404(d) under the PostalAccountability and Enhancement Act of 2006 (PAEA), Public Law 109–435,section 1010(e), 120 Stat. 3261.) Noticemust be given at least 60 days inadvance to enable customers to presenttheir views. Section 404(d) furtherrequires that the Postal Service considerspecific criteria in makingdeterminations to close or consolidate apost office, including the effects oncommunity and employees, the abilityto provide a maximum degree of effective and regular postal services tothe affected community, and economicsavings. A determination to close orconsolidate any Post Office may beappealed to the Postal RegulatoryCommission (Commission) within 30days after such determination is madeavailable to customers. The Commissionhas up to 120 days to issue a decisionif an appeal is filed. Even if no appealis filed, the Postal Service is preventedfrom taking action to close orconsolidate a post office until 60 dayshave elapsed since its finaldetermination has been made availableto customers.As part of ongoing efforts torationalize its retail network, the PostalService has undertaken a review of itsregulations in 39 CFR part 241 todetermine how the administration of theclosing process can be improved. ThePostal Service has identified variousamendments to section 241.3 that wouldfurther the Plan’s objective of improvingthe closing process. In addition, thePostal Service has determined, as amatter of policy, to apply the samediscontinuance procedures to all retailfacilities operated by Postal Serviceemployees. These proposed measuresare described below.
I. Application of Post OfficeDiscontinuance Procedures to OtherRetail Facilities
Section 404(d) of title 39, U.S. Code,applies only to the
‘‘
closing orconsolidation
’’
of 
‘‘
post offices.
’’
A PostOffice is an organizational unit headedby a postmaster that provides retail anddelivery services, and mail processing,to residents and businesses in the ZIPCode areas that comprise that office’sexclusive delivery service area. In usingthe term
‘‘
Post Office
’’
in its technicalsense for well over a century, Congresshas recognized the need for postalofficials to establish facilities, includingPost Offices, stations, and branches, andalso to discontinue them. The authorityof Congress
‘‘
to establish post offices,
’’
U.S. Const. art. I, section 8, cl. 7, hasbeen consistently delegated to thePostmaster General since theestablishment of the Nation’s postalsystem. See the discussion in
Ware
v.
United States,
71 U.S. 617, 630–633(1866).Numerous other postal statutes, notdirectly concerned with theestablishment of postal facilities, havealso illustrated the distinction betweena station or branch and a Post Office.For example, former 39 U.S.C. 3524–3530, which set compensation levels forpostmasters and other managementemployees, clearly show theadministrative distinction between aPost Office, supervised by a postmaster,and its subordinate stations andbranches, generally under the directionof an officer in charge. Similarly, inextending the protection of criminalstatutes to postal facilities andoperations, Congress was careful toapply those statutes not only to PostOffices, but to their subordinate serviceunits.
See, e.g.,
18 U.S.C. 1703, 1708,1709, 1712, 1721.Furthermore, Congress was wellaware of the longstanding distinctionbetween Post Offices and other types of postal facilities when it enacted 39U.S.C. 404(d). In proposing thelegislation which provided thefoundation for current section 404(d),Senator Jennings Randolph expressedhis opposition to the
‘‘
indiscriminateclosing of our rural and small town postoffices
’’
as well as to the decision
‘‘
tocreate branches out of many post officesclose to large cities.
’’
To curtail suchactions, he offered legislation requiringthe Postal Service to
‘‘
substantiate anyproposal to change or eliminateindependent post offices.
’’
See
122Cong. Rec. 6314 (March 11, 1976). In itsanalysis of the subsequently enacted
‘‘
Randolph Amendment,
’’
the conferencereport on H.R. 8603 explicitly limited itsapplication to Post Offices:
‘‘
[T]hemanagers intend that this provisionapply to post offices only and not toother postal facilities.
’’
H.R. Rep. No.94–1444, 94th Cong., 2d Sess. 17 (1976).Thus, as a legal matter, former 39 U.S.C.404(b) and its modern analogue, 39U.S.C. 404(d), apply only to PostOffices.
See Wilson
v.
United States
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17795
Federal Register
/Vol. 76, No. 62/Thursday, March 31, 2011/Proposed Rules
Postal Service,
441 F. Supp. 803, 806(C.D. Cal. 1977);
Knapp
v.
United StatesPostal Service,
449 F. Supp. 158, 161–62 (E.D. Mich. 1978).As a matter of policy, the PostalService recognizes that the functionaldifferences among respective types of retail facilities staffed by postalemployees may not be readily apparentto its retail customers. The PostalService is mindful of comments that theCommission has provided to this effectin multiple contexts. Accordingly, manycustomers expect the samediscontinuance procedures to apply fortheir local station as to the nearestindependent Post Office. In the interestof transparency and responsiveness tocustomer needs, the Postal Service hasconcluded that it makes sense, as apolicy matter, to propose theapplication of a single set of discontinuance procedures to postalemployee-operated retail facilities.Although customers of contractor-operated retail facilities may alsoexperience and expect comparablelevels of service to those of postalemployee-operated retail facilities,exigencies of contracting relationshipsmake it generally impractical toharmonize their discontinuanceprocedures with the deliberativetimeframe and procedures required fordiscontinuance of Postal Service-operated facilities.The Postal Service recognizes that itsproposed rule represents a policychange that significantly enhancestransparency for its customers. Theproposed rule does not, however,change the text or legislative history of 39 U.S.C. 404(d), which indicateCongress’s intent that the statute shouldapply only to independent Post Officesand not to subordinate retail facilities.By proposing the application of uniformprocedures to all Postal Service-operated retail facilities, the PostalService would exceed the proceduralrequirements of its operating statute inthe interests of public transparency andparticipation.One consequence of this proceduralharmonization is that the distinguishingfactor would become the identity of thefacility as operated by the Postal Serviceor a contractor, and not theadministrative classification of affectedfacilities as Post Offices, stations, orbranches. The conversion of anindependent Post Office to asubordinate Postal Service-operatedretail facility would no longer constitutea
‘‘
consolidation
’’
that triggersdiscontinuance proceedings, as it doestoday. The governing statute does notdefine
‘‘
close
’’
and
‘‘
consolidate,
’’
nordoes it offer any guidance as to thedistinction between the two terms.Postal Service facilities generally offerthe same retail services to customersregardless of the facilities’administrative designation. Moreover,by applying the same discontinuanceprocedures to all Postal Service-operated retail facilities, the proposedrule would erase the effect of administrative designations onapplicable discontinuance procedures.Therefore, the Postal Service does notconsider it reasonable to continueapplying discontinuance procedures tofacility re-designations that do not entailany practical effect for customers. Thesechanges would also harmonize withchanges regarding administrativeoversight of particular offices.The proposed rule would not beretroactive. Therefore, until such time asany proposed changes are issued in afinal rule and take effect, the proposedchange in policy is not effective andwould not affect the procedurescurrently in use for discontinuance of Postal Service retail facilities.
II. Procedural Changes
After an extensive review, the PostalService is in the process of revising andupdating its discontinuance procedures.This process significantly improves theinternal timeframes, level of coordination, and approvals; it willmaintain compliance with the statuteand enhances public notice andinvolvement. The internal proceduresfor discontinuance actions are detailedin Handbook PO–101,
Post OfficeDiscontinuance Guide,
which isundergoing revision. Certain changesare also required to 39 CFR 241.3 toreflect the new processes. For example,retail facility discontinuances may beprompted not only by local evaluations,but also by nationwide directives fromthe responsible Headquarters office.In addition, current regulationsrequire at least a 90-day waiting periodafter posting of a final determination (if not appealed to the Commission) orafter a Commission order upholding thefinal determination. The statute,however, only requires a 60-day periodafter posting of the final determination.Accordingly, the proposed rule wouldmake the mandatory waiting periodconsistent with statutory requirements,although the Postal Service could, at itsdiscretion, defer implementation.Finally, the proposed rule would giveexplicit guidance to District Managers asto the circumstances that may justifycommencement of a discontinuancestudy.
III. Analysis of Proposed Changes
Section 241.1(a) and (b) would beupdated to state the establishmentrequirements and classification systemfor Post Offices in accordance with
Postal Operations Manual 
(POM)123.11. The change in the classificationsystem does not entail any change inhow respective retail facilities are ratedby revenue units within accountinggroups. Subsection 241.1(a) would alsoclarify that Post Offices may be managedby postmasters, as is commonly thecase, or by other designated personnel.The designation of a retail facility as aPost Office, classified station, orclassified branch would not depend onwhether any responsible personnel is apostmaster.In keeping with the policy changeconcerning the scope of discontinuanceprocedures, the proposed rule wouldreplace all references to
‘‘
post office
’’
in39 CFR 241.3 with
‘‘
USPS-operatedretail facility
’’
(or a similar term). A newsubparagraph (a)(1)(ii) would be addedto define
‘‘
USPS-operated retail facility
’’
as any Post Office, station, or branchthat is operated by Postal Serviceemployees, rather than by contractorpersonnel. Subparagraph (a)(1)(ii)would also define
‘‘
contractor-operatedretail facility
’’
as any community postoffice, station, branch, or other facilityoffering retail postal services that isoperated by a contractor, rather than byPostal Service employees.Paragraph (a)(1) would be renumberedas subparagraph (a)(1)(i), and the scopeof 39 CFR 241.3 would be defined inthat subparagraph as applying to theclosure or combination of any PostalService-operated retail facility orfacilities, or the replacement of such afacility with a contractor-operated retailfacility. Corresponding changes wouldbe made to paragraph (c)(2) with respectto the scope of a
‘‘
consolidation
’’
forpurposes of 39 CFR 241.3. Subparagraph(a)(1)(iii) would be added to clarify thatthe reclassification of a Post Office as aPostal Service-operated station orbranch, or the replacement of the formerwith the latter, is not a closing orconsolidation subject to 39 CFR 241.3.Subparagraph (a)(1)(iii) would alsoclarify that discontinuance actionssubject to 39 CFR 241.3 do not includestaffing changes in the management of apost office such that it is staffed by apostmaster part-time or not at all and byanother type of USPS employee duringthe remaining office hours.Because the discontinuanceprocedures in 39 CFR 241.3 wouldapply beyond the extent legally requiredby 39 U.S.C. 404(d), paragraph (a)(2)would be renamed simply
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17796
Federal Register
/Vol. 76, No. 62/Thursday, March 31, 2011/Proposed Rules
‘‘
Requirements,
’’
and the reference to 39U.S.C. 404(d) as the statutory source of such requirements would be deleted.Paragraph (a)(2), subparagraph(a)(3)(ii), and paragraph (c)(1) would beamended to allow for the possibility thatdiscontinuance actions may result frominitiatives or instructions by theresponsible Vice President or fromDistrict Managers. Although manydiscontinuance actions will continue tobe prompted by local personnel’sassessment of prevailing conditions, thischange would reflect the fact thatdiscontinuance actions could also flowfrom nationwide requirements for retailfacilities established by relevantHeadquarters offices.Subparagraph (a)(2)(iv) currentlyrefers to the statutory right of personsserved by an affected Post Office toappeal a discontinuance determinationto the Commission. Although the PostalService is proposing to extend theapplicability of its post officediscontinuance procedures to othertypes of Postal Service-operated retailfacilities, the Postal Service does nothave the power to alter the scope of theCommission’s statutory jurisdiction.Therefore, the Postal Service proposesto add a sentence to subparagraph(a)(2)(iv) to clarify that, in cases wherecustomers of an affected Postal Service-operated retail facility other than a postoffice file an appeal with theCommission, the Postal Service’s Officeof General Counsel will determinewhether to raise jurisdictional defenseson a case-by-case basis, without waivingany objections as to the Commission’sgeneral lack of jurisdiction over suchattempted appeals. In addition,subparagraph (a)(2)(iv) would beamended to incorporate the
‘‘
mailboxrule
’’
for receipt of appeals by theCommission, in accordance with39 U.S.C. 404(d)(6).A new paragraph (a)(4) would beadded to clarify the circumstances thatmay prompt a District Manager, VicePresident, or a designee of either toinitiate a discontinuance study.Permissible factors include postmastervacancies, emergency suspensions,workload changes, drops in customerdemand, availability of reasonablealternate access to postal services, andother special circumstances. Absent oneor more such permissiblecircumstances, a deciding official of either may not initiate a discontinuancestudy because restroom facilities orbuilding modifications for thehandicapped are required, for reasons of compliance with the OccupationalHealth and Safety Act of 1970 (29 U.S.C.651
et seq.
), or because the retail facilityis a small Post Office operating at adeficit.The scope of paragraph (b)(4) wouldbe extended to the replacement of anyPostal Service-operated retail facilitywith another type of Postal Service-operated or contractor-operated retailfacility.Paragraph (b)(5) would be deleted,because the Publication that listsdiscontinued Post Offices referenced inthat paragraph is obsolete.Subparagraph (c)(4)(vii) would bereorganized to more accurately indicatethe contents of the proposal notice.Clause (c)(4)(vii)(B) and subparagraph(f)(2)(ii) would be amended to requirenotice of appeal rights only for proposeddiscontinuances of post offices, inaccordance with the scope of theCommission’s statutory jurisdiction, asdescribed in the analysis of subparagraph (a)(2)(iv) above.Paragraph (d)(2) and the sample formincluded therein would be deleted. Thisform will be available to customers inaccordance with these regulations.Current paragraphs (d)(3) and (4) wouldbe renumbered (d)(2) and (3),respectively.Paragraph (d)(3) (re-designated as(d)(2)) would be amended to clarify thata community meeting should be heldunless the responsible Vice President orArea Manager of Delivery ProgramsSupport instructs otherwise.Subparagraph (d)(4)(v) (re-designatedas (d)(3)(v)) would advise that certainpersonally identifiable information maybe redacted from publicly accessiblecopies of the discontinuance record, inthe interest of protecting personalprivacy.Subsection (e)(2)(ii)(A) and (B) wouldbe amended to reflect the fact thatdiscontinuance records are typicallytransmitted electronically, as well asforwarded in paper form. Therefore, it ismore appropriate for the DistrictManager to certify accuracy of therecord being transmitted, rather than toattach a separate certification as to theaccuracy of copies.Subparagraph (g)(1)(i) would beamended to remove the DistrictManager’s obligation to notify theresponsible Vice President of the date of posting.The timeframe for implementation inthe event that a final determination isnot appealed, set forth in paragraph(g)(2), would be amended such thatimplementation can occur anytime afterthe statutorily required 60-day waitingperiod that commences the first dayafter posting of the final determination.Similarly, when the Commissionupholds the Postal Service’s finaldetermination under subparagraph(g)(4)(i), the proposed rule would allowimplementation anytime after issuanceof the Commission’s Order, so long asthe 60-day waiting period after postingof the final determination is alsosatisfied. The current rule for bothinstances, that a discontinuance beeffective on the first Saturday 90 daysafter the Commission’s order, is notrequired by statute. Although the PostalService may continue to apply a longertime period in some cases, the proposedrule would allow the Postal Service todo otherwise within the statutoryframework.Clause (g)(3)(ii)(B) would be amendedto clarify that the Commission’s finalorder and opinion need only bedisplayed at the Postal Service-operatedretail facility subject to discontinuancefor 30 days or until the effective date of the discontinuance, whichever isearlier.The proposed rule would also makeseveral minor changes to update terms.References to the former
‘‘
Postal RateCommission
’’
would be replaced with
‘‘
Postal Regulatory Commission,
’’
inaccordance with the renaming of thatentity under Section 604 of the PAEA,Public Law 109–435, 120 Stat. 3241–3242. References to AdministrativeSupport Manual (ASM) 352.6 would beupdated to refer to chapter 4 of Handbook AS–353,
Guide to Privacy,the Freedom of Information Act, and Records Management,
to which theASM’s records request regulations havebeen transferred. References to former39 U.S.C. 404(b) would be updated to39 U.S.C. 404(d). Subparagraph (g)(3)(ii)would assign responsibility to the PostalService’s Office of the General Counsel,rather than specifically to the formersection for Legal Policy and RatemakingLaw. Finally, the position titles of District Manager, Customer Service andSales, and Vice President, Delivery andRetail, throughout the section would beupdated to District Manager andresponsible Vice President, respectively.Although exempt from the notice andcomment requirements of theAdministrative Procedure Act (5 U.S.C.553(b), (c)) regarding proposedrulemaking by 39 U.S.C. 410(a), thePostal Service invites comments on thefollowing proposed amendments to theCode of Federal Regulations.An appropriate amendment to 39 CFRpart 241 to reflect these changes will bepublished if the proposal is adopted.
List of Subjects in 39 CFR Part 241
Organization and functions(government agencies), Postal Service.For the reasons set out in thisdocument, the Postal Service proposesto amend 39 CFR part 241 as follows:
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