Title 39—Postal Service

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CHAPTER I—United States Postal Service ...... 1

CHAPTER III—Postal Regulatory Commission ...... 3000

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SUBCHAPTER A—THE BOARD OF GOVERNORS OF THE U.S. POSTAL SERVICE

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BYLAWS OF THE BOARD OF GOVERNORS 1 Postal policy [Article I] ...... 9 2 General and technical provisions [Article II] ...... 9 3 Board of Governors [Article III] ...... 10 4 Officials [Article IV] ...... 14 5 Committees [Article V] ...... 15 6 Meetings [Article VI] ...... 16 7 Public observation [Article VII] ...... 17 8–9 [Reserved] 10 Rules of conduct for Postal Service Governors [Ar- ticle X] ...... 21 11 Advisory boards [Article XI] ...... 22

SUBCHAPTER B—INTERNATIONAL MAIL 20 International Postal Service ...... 23

SUBCHAPTER C—POST OFFICE SERVICES [DOMESTIC MAIL]

GENERAL INFORMATION ON POSTAL SERVICE 111 General information on Postal Service ...... 25 121 Service standards for market-dominant mail products ...... 27 122 Service standards for market-dominant special services products ...... 33

SUBCHAPTER D—ORGANIZATION AND ADMINISTRATION 211 Application of regulations ...... 35 221 General organization...... 36 222 Delegations of authority ...... 39 223 Relationships and communication channels ...... 40

INSPECTION SERVICE REQUIREMENTS 230 Office of Inspector General ...... 41 3

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231 Protection of post offices ...... 47 232 Conduct on postal property ...... 48 233 Inspection Service authority ...... 51 235 Defense Department liaison ...... 75

POST OFFICE ORGANIZATION AND ADMINISTRATION 241 Establishment classification, and discontinuance .. 76 242 Change of site ...... 86 243 Conduct of offices ...... 86

GENERAL POSTAL ADMINISTRATION 254 Postal Service standards for facility accessibility pursuant to the Architectural Barriers Act ...... 87 255 Access of persons with disabilities to postal service programs, activities, facilities, and electronic and information technology ...... 89 259 Services performed for other agencies ...... 93

RECORDS AND INFORMATION 261 Records and information management ...... 95 262 Records and information management definitions 96 263 Records retention and disposition ...... 99 264 Vital records...... 99 265 Release of information ...... 100 266 Privacy of information ...... 127 267 Protection of information ...... 138 268 Privacy of information—employee rules of conduct 141 273 Administration of Program Fraud Civil Remedies Act ...... 142

DAMAGE TO OR DESTRUCTION OF FIRM MAILINGS 281 Firm mailings damaged or destroyed through transportation accidents or catastrophes ...... 147

SUBCHAPTER E—RESTRICTIONS ON PRIVATE CARRIAGE OF LETTERS 310 Enforcement of the private express statutes ...... 148 320 Suspension of the private express statutes ...... 152

SUBCHAPTER F—PERSONNEL 447 Rules of conduct for postal employees ...... 159

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491 Garnishment of salaries of employees of the Postal Service and the Postal Rate Commission ...... 163

SUBCHAPTER G—POSTAGE PROGRAMS 501 Authorization to manufacture and distribute postage meters ...... 167 551 Semipostal stamp program ...... 180

SUBCHAPTER H—PROCUREMENT SYSTEM FOR THE U.S. POSTAL SERVICE: INTELLECTUAL PROPERTY RIGHTS OTHER THAN PATENTS 601 Purchasing of property and services ...... 186 602 Intellectual property rights other than patents ..... 196

SUBCHAPTER I [RESERVED]

SUBCHAPTER J—POSTAL SERVICE DEBT OBLIGATIONS; DISBURSEMENT POSTAL MONEY ORDERS 760 Applicability of Treasury Department regulations 198 761 Book-entry procedures...... 198 762 Disbursement postal money orders ...... 201

SUBCHAPTER K—ENVIRONMENTAL REGULATIONS 775 National Environmental Policy Act procedures ..... 206 776 Floodplain and wetland procedures ...... 216

SUBCHAPTER L—SPECIAL REGULATIONS 777 Relocation assistance and real property acquisition policies ...... 221 778 Intergovernmental review of Postal Service facility actions ...... 240

SUBCHAPTER M [RESERVED]

SUBCHAPTER N—PROCEDURES

RULES OF PROCEDURE BEFORE THE OFFICE OF GENERAL COUNSEL 912 Procedures to adjudicate claims for personal injury or property damage arising out of the operation of the U.S. Postal Service ...... 244 913 Procedures for the issuance of administrative subpoenas under 39 U.S.C. 3016 ...... 247

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916 [Reserved]

RULES OF PROCEDURE BEFORE THE MAIL PROCESSING DEPARTMENT 927 Rules of procedure relating to fines, deductions, and damages ...... 249 931 Rules of procedure governing the compromise of obligations ...... 251

RULES OF PROCEDURE BEFORE THE POSTAL INSPECTION SERVICE 946 Rules of procedure relating to the disposition of stolen mail matter and property acquired by the Postal Inspection Service for use as evidence ...... 251

RULES OF PROCEDURE BEFORE THE JUDICIAL OFFICER 951 Procedure governing the eligibility of persons to practice before the Postal Service ...... 253 952 Rules of practice in proceedings relative to false representation and lottery orders (Eff. until 7-22- 2011) ...... 255 952 Rules of practice in proceedings relative to false representation and lottery orders (Eff. 7-22-2011) 266 953 Rules of practice in proceedings relative to mailability ...... 274 954 Rules of practice in proceedings relative to the denial, suspension, or revocation of periodicals mail privileges ...... 277 955 Rules of practice before the Postal Service Board of Contract Appeals ...... 283 956 [Reserved] 957 Rules of practice in proceedings relative to debarment and suspension from contracting ...... 296 958 Rules of practice in proceedings relative to civil penalties, clean-up costs and damages for violation of hazardous material regulations ...... 302 959 Rules of practice in proceedings relative to the private express statutes ...... 309 960 Rules relative to implementation of the Equal Ac- cess to Justice Act in Postal Service proceedings 316 961 Rules of practice in proceedings relative to employee hearing petitions under section 5 of the Debt Collection Act ...... 323 962 Rules of practice in proceedings relative to the Program Fraud Civil Remedies Act ...... 326

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963 Rules of practice in proceedings relative to violations of the pandering advertisements statute, 39 U.S.C. 3008 ...... 334 964 Rules of practice governing disposition of mail withheld from delivery pursuant to 39 U.S.C. 3003, 3004 ...... 338 965 Rules of practice in proceedings relative to mail disputes ...... 343 966 Rules of practice in proceedings relative to administrative offsets initiated against former employees of the Postal Service ...... 345

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Bylaws of the Board of Governors it has delegated, measures progress toward the goals it has set, and shapes PART 1—POSTAL POLICY (ARTICLE the policies to guide the future devel- I) opment of the Postal Service. Delega- tions of authority do not relieve the Sec. Board of full responsibility for carrying 1.1 Establishment of the U.S. Postal Serv- out its duties and functions, and are ice. revocable by the Governors in their ex- 1.2 Delegation of authority. clusive judgment. AUTHORITY: 39 U.S.C. 101, 202, 205, 401(2), 402, 403. PART 2—GENERAL AND TECHNICAL SOURCE: 73 FR 78983, Dec. 24, 2008, unless PROVISIONS (ARTICLE II) otherwise noted.

§ 1.1 Establishment of the U.S. Postal Sec. Service. 2.1 Office of the Board of Governors. 2.2 Agent for receipt of process. The U.S. Postal Service is estab- 2.3 Offices lished under the provisions of the Post- 2.4 Seal. al Reorganization Act (the Reorganiza- 2.5 Authority. tion Act) of 1970, Public Law 91–375, 84 2.6 Severability, amendment, repeal, and Stat. 719, as amended by the Postal Ac- waiver of bylaws. countability and Enhancement Act of 2006 (PAEA), Public Law 109–435, 120 AUTHORITY: 39 U.S.C. 202, 203, 205(c), 207, Stat. 3198, as an independent establish- 401(2); 5 U.S.C. 552b(f), (g). ment of the executive branch of the SOURCE: 73 FR 78983, Dec. 24, 2008, unless Government of the United States, otherwise noted. under the direction of a Board of Gov- ernors, with the Postmaster General as § 2.1 Office of the Board of Governors. its chief executive officer. The Board of There shall be located in Washington, Governors of the Postal Service (the DC an Office of the Board of Governors Board) directs the exercise of its pow- of the United States Postal Service. It ers through management that is ex- shall be the function of this Office to pected to be honest, efficient, economi- provide staff support for the Board, as cal, and mindful of the competitive directed by the Chairman of the Board, business environment in which the to enable the Board to carry out effec- Postal Service operates. The Board tively its duties and responsibilities. consists of nine Governors appointed by the President, by and with the ad- § 2.2 Agent for receipt of process. vice and consent of the Senate, to represent the public interest generally, to- The General Counsel of the Postal gether with the Postmaster General Service shall act as agent for the re- and Deputy Postmaster General. ceipt of legal process against the Post- al Service, and as agent for the receipt § 1.2 Delegation of authority. of legal process against the Board of Except for powers, duties, or obliga- Governors or a member of the Board, in tions specifically vested in the Gov- his or her official capacity, and all ernors by law, the Board may delegate other officers and employees of the its authority to the Postmaster Gen- Postal Service to the extent that the eral under such terms, conditions, and process arises out of the official func- limitations, including the power of re- tions of those officers and employees. delegation, as it finds desirable. The The General Counsel shall also issue bylaws of the Board are the framework public certifications concerning closed of the system through which the Board meetings of the Board as appropriate monitors the exercise of the authority under 5 U.S.C. 552b(f).

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§ 2.3 Offices. § 2.5 Authority. The principal office of the Postal These bylaws are adopted by the Service is located in Washington, DC, Board under the authority conferred with such regional and other offices upon the Postal Service by 39 U.S.C. and places of business as the Post- 401(2) and 5 U.S.C. 552b(g). master General establishes from time to time, or the business of the Postal § 2.6 Severability, amendment, repeal, Service requires. and waiver of bylaws. The invalidity of any provision of § 2.4 Seal. these bylaws does not affect the valid- (a) The Seal of the Postal Service is ity of the remaining provisions, and for filed by the Board in the Office of the this purpose these bylaws are sever- Secretary of State, and is required by able. The Board may amend or repeal 39 U.S.C. 207 to be judicially noticed. these bylaws at any special or regular The Seal shall be in the custody of the meeting, provided that each member of General Counsel, who shall affix it to the Board has received a written notice all commissions of officers of the Post- containing a statement of the proposed al Service, and use it to authenticate amendment or repeal at least 5 days records of the Postal Service and for before the meeting. The members of other official purposes. The following the Board may waive the 5 days’ notice describes the Seal adopted for the Post- or the operation of any other provision al Service: of these bylaws by unanimous consent, (1) A stylized bald eagle is poised for if that action is not prohibited by law. flight, facing to the viewer’s right, The Secretary shall submit the text of above two horizontal bars between any amendment to these bylaws for which are the words ‘‘U.S. MAIL’’, sur- publication in the FEDERAL REGISTER rounded by a square border with round- as soon as practicable after the amended corners consisting of the words ment is adopted by the Board. ‘‘UNITED STATES POSTAL SERVICE’’ on the left, top, and right, and con- PART 3—BOARD OF GOVERNORS sisting of nine five-pointed stars on the (ARTICLE III) base. (2) The color representation of the Sec. Seal shows, a white field on which the 3.1 Composition and responsibilities of bald eagle appears in dark blue, the Board. words ‘‘U.S. MAIL’’ in black, the bar 3.2 Compensation of Board. above the words in red, the bar below 3.3 Matters reserved for decision by the in blue, and the entire border con- Board. sisting of the words ‘‘UNITED STATES 3.4 Matters reserved for decision by the Governors. POSTAL SERVICE’’ and stars in ochre. 3.5 Delegation of authority by Board. 3.6 Information furnished to Board—financial and operating reports. 3.7 Information furnished to Board—program review. 3.8 Information furnished to Board—special reports. 3.9 Establishment of rates and classes of competitive products of general applicability. 3.10 Establishment of rates and classes of competitive products not of general applicability.

AUTHORITY: 39 U.S.C. 202, 203, 205, 401 (2), (10), 402, 404(b), 414, 416, 1003, 2005, 2011, 2802– 2804, 3013, 3622, 3632, 3642, 3652, 3654, 3691; 5 U.S.C. 552b(g), (j); 5 U.S.C. App.; Pub. L. 107– (b) The location and description of 67, 115 Stat. 514 (2001). the Postal Service emblem is described SOURCE: 73 FR 78983, Dec. 24, 2008, unless at 39 CFR 221.7. otherwise noted.

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§ 3.1 Composition and responsibilities (f) Approval of any use of the author- of Board. ity of the Postal Service to borrow The composition of the Board is de- money under 39 U.S.C. 2005 and 39 scribed in 39 U.S.C. 202. The Board di- U.S.C. 2011, except for short-term bor- rects the exercise of the powers of the rowings, having maturities of one year Postal Service, reviews the practices or less, assumed in the normal course and policies of the Postal Service, and of business. directs and controls the expenditures (g) Approval of the terms and condi- of the Postal Service. Consistent with tions of each series of obligations the broad delegation of authority to issued by the Postal Service under 39 the Postmaster General in § 3.5 of these U.S.C. 2005 and 39 U.S.C. 2011, including bylaws, and except for those powers, the time and manner of sale and the duties, or obligations which are specifi- underwriting arrangements, except for cally vested by statute in the Gov- short-term borrowings, having matu- ernors, as distinguished from the Board rities of one year or less, assumed in of Governors, the Board accomplishes the normal course of business. its purposes by monitoring the oper- (h) Approval of any use of the author- ations and performance of the Postal ity of the Postal Service to require the Service, and by establishing basic ob- Secretary of the Treasury to purchase jectives, broad policies, and long-range Postal Service obligations under 39 goals for the Postal Service. U.S.C. 2006(b), or to request the Sec- retary of the Treasury to pledge the § 3.2 Compensation of Board. full faith and credit of the Government Section 202(a)(1) of title 39 provides of the United States for the payment of for the compensation of the Governors principal and interest on Postal Serv- and for reimbursement for travel and ice obligations under 39 U.S.C. 2006(c). reasonable expenses incurred in attend- (i) Determination of the number of ing Board meetings. Compensation is officers, described in 39 U.S.C. 204 as provided for not more than 42 days of Assistant Postmasters General, wheth- meetings per year. er so denominated or not, as the Board authorizes by resolution. § 3.3 Matters reserved for decision by (j) Compensation and benefits of offi- the Board. cers of the Postal Service whose posi- The following matters are reserved tions are included in Level II of the for decision by the Board of Governors: Postal Career Executive Service. (a) Adoption of, and amendments to, (k) Approval of official statements the bylaws of the Board. adopting major policy positions or de- (b) (1) Approval of the annual Postal parting from established major policy Service Finance Plan; positions, and of official positions on (2) Approval of the annual Postal legislative proposals having a major Service Operating Plan; impact on the Postal Service. (3) Approval of the annual Postal (l) Approval of all major policy posi- Service Capital Plan. tions taken with the Department of (c) Approval of the annual financial Justice on petitioning the Supreme statements of the Postal Service fol- Court of the United States for writs of lowing receipt of the annual report of certiorari. the Postal Service’s independent, cer- (m) Approval and transmittal to the tified public accounting firm. President and the Congress of the an- (d) Authorization of the Postal Serv- nual report of the Postmaster General ice, in consultation with the Postal under 39 U.S.C. 2402. Regulatory Commission, to establish (n) Approval and transmittal to the service standards under 39 U.S.C. 3691. Congress of the annual report of the (e) Authorization of the Postal Serv- Board under 5 U.S.C. 552b(j). ice to request that the Postal Regu- (o) Approval of the annual com- latory Commission submit an advisory prehensive statement of the Postal opinion on a proposed change in the na- Service to Congress under 39 U.S.C. ture of postal services which will gen- 2401(e). erally affect service on a nationwide or (p) Approval and transmittal to the substantially nationwide basis. Congress of the semi-annual report of

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the Postmaster General under 39 U.S.C. Regulatory Commission for adjustment 3013, summarizing the investigative ac- of rates on an expedited basis due to tivities of the Postal Service. extraordinary or exceptional cir- (q) Approval and transmittal to the cumstances, as provided in 39 U.S.C. President and the Congress of the Post- 3622(d)(1)(E). al Service’s strategic plan pursuant to (i) Appointment and removal of the the Government Performance and Re- Inspector General under 39 U.S.C. sults Act of 1993, 39 U.S.C. 2802; ap- 202(e). proval of the Postal Service annual (j) Exercise of the authority of the performance plan under 39 U.S.C. 2803 Governors under 5 U.S.C. App. and the Postal Service program per- 8G(f)(3)(A). formance report under 39 U.S.C. 2804, (k) The Governors shall meet annu- which are included in the comprehen- ally in closed session to discuss com- sive statement under 39 U.S.C. 2401. pensation and benefits, term of service, (r) All other matters that the Board and appointment/removal of the Board may consider appropriate to reserve for Secretary and other necessary staff. its decision. (l) Transmittal to the Congress of the semi-annual report of the Inspector § 3.4 Matters reserved for decision by General under section 5 of the Inspec- the Governors. tor General Act. The following matters are reserved (m) Establishment of the price of the for decision by the Governors: breast cancer research special postage (a) Appointment, pay, term of serv- stamp under 39 U.S.C. 414 and any ice, and removal of the Postmaster semipostal stamp under 39 U.S.C. 416. General, 39 U.S.C. 202(c). (n) Selection of an independent, cer- (b) Appointment, term of service, and tified public accounting firm to certify removal of the Deputy Postmaster the accuracy of Postal Service finan- General (by the Governors and the cial statements as required by 39 U.S.C. Postmaster General, 39 U.S.C. 202(d)); 2008(e). pay of the Deputy Postmaster General, 39 U.S.C. 202(d). § 3.5 Delegation of authority by Board. (c) Election of the Chairman, 39 As authorized by 39 U.S.C. 402, these U.S.C. 202(a)(1), and Vice Chairman of bylaws delegate to the Postmaster the Board of Governors. General the authority to exercise the (d) Establishment of rates and classes powers of the Postal Service to the ex- of competitive products of both general tent that this delegation of authority and not of general applicability under does not conflict with powers reserved 39 U.S.C. 3632 in accordance with the to the Governors or to the Board by procedures set out in sections 3.9 and law, these bylaws, or resolutions adopt- 3.10 of these bylaws. ed by the Board. Any of the powers del- (e) Authorization of the Postal Serv- egated to the Postmaster General by ice to adjust the rates and fees for mar- these bylaws may be redelegated by the ket dominant products under 39 U.S.C. Postmaster General to any officer, em- 3622. ployee, or agency of the Postal Service. (f) Authorization of the Postal Serv- ice to request that the Postal Regu- § 3.6 Information furnished to Board— latory Commission, under 39 U.S.C. financial and operating reports. 3642, change the lists of market domi- (a) To enable the Board to monitor nant and competitive products by add- the performance of the Postal Service ing a product, removing a product, or during the most recent accounting pe- transferring a product. riods for which data are available, (g) Authorization of the Postal Serv- postal management shall furnish the ice to file a notice with the Postal Reg- Board (on a monthly basis) financial ulatory Commission of substantive and operating statements for the fiscal modifications to the product descrip- year to date, addressing the following tions in the Mail Classification Sched- categories: ule. (1) Mail volume by class; (h) Authorization of the Postal Serv- (2) Income and expense by principal ice to file a request with the Postal categories;

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(3) Balance sheet information; purposes of this paragraph, ‘‘signifi- (4) service quality measurements; cant’’ means a project anticipated to (5) productivity measurements (re- have a notable or conspicuous impact flecting workload and resource utiliza- on corporate visibility or the operating tion); and budget (including increases in expense (6) changes in postal costs. amounts) or the capital investment (b) These statements shall include, budget. The notification requirement where applicable, comparable figures of this paragraph governs applicable for the previous year and the current projects regardless of the level of ex- year’s plan. penditure or potential liability involved. § 3.7 Information furnished to Board— program review. § 3.8 Information furnished to Board— (a) To enable the Board to review the special reports. Postal Service operating program, To insure that the Board receives sig- postal management shall furnish the nificant information of developments Board information on all aspects of the meriting its attention, postal manage- Postal Service budget plan, including: ment shall bring to the Board’s atten- (1) The tentative and final annual tion the following matters: budgets submitted to the Office of (a) Major developments in personnel Management and Budget and the Con- areas, including but not limited to gress, and amendments to the budget; equal employment opportunity, career (2) Five-year plans, annual operating development and training, and grade and investment plans, and significant and salary structures. departures from estimates upon which the plans were based; (b) Major litigation activities. Postal (3) The need for rate adjustments and management shall also notify the the progress of any pending matters be- Board in a timely manner whenever it fore the Postal Regulatory Commission proposes to seek review by any United and related litigation; and States Court of Appeals of an adverse (4) Debt financing needs, including a judicial or regulatory decision signifi- review of all borrowings of the Postal cantly impacting the Postal Service or Service from the U.S. Treasury and pri- involving a new, novel, or potentially vate sources. controversial issue. (b) To enable the Board to review the (c) Any significant changes proposed effectiveness of the Postal Service’s in the Postal Service’s system of ac- equal employment opportunity pro- counts or methods of accounting. gram, performance data relating to (d) Matters of special importance, in- this program shall be furnished to the cluding but not limited to important Board at least quarterly. These data research and development initiatives, shall be categorized in such manner as major changes in Postal Service orga- the Board, from time to time, specifies. nization or structure, major law en- (c) Postal management shall also forcement activities, and other matters regularly furnish the Board informa- having a significant impact upon the tion regarding major programs for im- relationship of the Postal Service with proving postal service or reducing the its employees, with any major branch cost of postal operations. of Government, or with the general (d) Management shall furnish to the public. Board: information regarding any sig- (e) Information concerning any pro- nificant, new program, policy, major posed grant of unique or exclusive li- modification or initiative; any plan to censes to use Postal Service intellec- offer a significant, new or unique prod- tual properties (other than patents and uct or system implementation; or any technical data rights), or any proposed significant, new project not related di- joint venture involving the use of such rectly to the core business function of property. the Postal Service. This information (f) Major or significant financial, shall be provided to the Board in ad- operational and compliance reports or vance of entering into any agreement studies the Postal Service is required in furtherance of such project. For the by statute or regulation to prepare.

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(g) Other matters having important (2) Management analysis dem- policy implications. onstrating compliance with the standards of 39 U.S.C. 3633(a). § 3.9 Establishment of rates and class- (b) Pursuant to § 6.6(f) of these by- es of competitive products of gen- laws, the Governors shall issue a writ- eral applicability. ten decision on any changes in rates or This section relates to changes in classes of competitive products not of rates or classes of competitive products general applicability, which shall in- of general applicability. clude a statement as to when the deci- (a) Prior to establishing changes in sion becomes effective. rates or classes of competitive products (c) The Secretary shall certify that of general applicability, postal man- the vote of the Governors met the con- agement shall furnish to the Governors dition set forth in § 6.6(f) of these by- the following: laws. (1) The proposed rate and classifica- (d) The Secretary shall cause any de- tion changes; and cision of the Governors under this sec- (2) Management analysis dem- tion, along with the record of any pro- onstrating compliance with the stand- ceedings of the Governors, and any sup- ards of 39 U.S.C. 3633(a). porting documentation required by 39 (b) Pursuant to § 6.6(f) of these by- CFR Part 3015, to be filed with the laws, the Governors shall issue a writ- Postal Regulatory Commission. The ten decision on any changes in rates or record of the proceedings of the Gov- classes of competitive products of gen- ernors consists of the certification by eral applicability, which shall include the Secretary of the vote of the Gov- a statement as to when the decision be- ernors. comes effective. (e) Postal management is authorized (c) The Secretary shall certify that to conclude agreements with customers the vote of the Governors met the con- concerning any rates or classes of com- dition set forth in section 6.6(f) of these petitive products not of general appli- bylaws. cability, provided that any such rates are within the range, or such classes (d) The Secretary shall cause the de- are within the scope, of a decision of cision of the Governors and its at- the Governors then in effect. tached analysis, along with the record of the Governors’ proceedings in connection with such decision, to be pub- PART 4—OFFICIALS (ARTICLE IV) lished in the FEDERAL REGISTER at least 30 days before the effective date Sec. of the changes in rates or classes of 4.1 Chairman. competitive products of general appli- 4.2 Vice Chairman. cability. The record of the proceedings 4.3 Postmaster General. of the Governors consists of the certifi- 4.4 Deputy Postmaster General. cation by the Secretary of the vote of 4.5 Assistant Postmasters General, General the Governors. Counsel, Judicial Officer, Chief Postal Inspector. 4.6 Secretary of the Board. § 3.10. Establishment of rates and classes of competitive products not AUTHORITY: 39 U.S.C. 202–205, 401(2), (10), of general applicability. 402, 1003, 3013, 3686.

This section relates to changes in SOURCE: 73 FR 78983, Dec. 24, 2008, unless rates and classes of competitive prod- otherwise noted. ucts not of general applicability. (a) Prior to establishing rates or § 4.1 Chairman. classes of competitive products not of (a) The Chairman of the Board of general applicability, postal manage- Governors is elected by the Governors ment shall furnish to the Governors from among the members of the Board. the following: The Chairman: (1) The proposed changes in rates or (1) Shall preside at all regular and ranges of rates, along with the pro- special meetings of the Board, and posed changes in classes; and shall set the agenda for such meetings;

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(2) Shall select and appoint the chair- when a vacancy exists in the office of man, vice chairman (if any), and mem- Postmaster General. The Governors set bers of any committee properly estab- the compensation and benefits of the lished by the Board; Deputy Postmaster General, subject to (3) Serves a term that commences 39 U.S.C. 1003(a) and 3686. upon election and expires at the end of the first annual meeting following the § 4.5 Assistant Postmasters General, meeting at which he or she was elected. General Counsel, Judicial Officer, (b) If the Postmaster General is Chief Postal Inspector. elected Chairman of the Board, the There are within the Postal Service a Governors shall also elect one of their General Counsel, a Judicial Officer, a number to preside during proceedings Chief Postal Inspector, and such num- dealing with matters upon which only ber of officers, described in 39 U.S.C. the Governors may vote. 204 as Assistant Postmasters General, (c)(1) Upon the election of a new whether so denominated or not, as the Chairman of the Board, the immediate Board authorizes by resolution. These past Chairman shall become Chairman officers are appointed by, and serve at Pro Tempore of the Board, to preside the pleasure of, the Postmaster Gen- during the absence of the Chairman eral. The Chief Postal Inspector shall and Vice Chairman at any meeting of report to, and be under the general su- the Board during the year or years fol- pervision of, the Postmaster General. lowing the immediate past Chairman’s The Postmaster General shall prompt- tenure as Chairman and until another ly notify the Governors and both Chairman has been elected. Houses of Congress in writing if he or (2) The Chairman Pro Tempore shall, she removes the Chief Postal Inspector at the request of the Chairman or Vice- or transfers the Chief Postal Inspector Chairman, serve as the representative to another position or location within of the Board of Governors at con- the Postal Service, and shall include in ferences, trade shows, ceremonial func- any such notification the reasons for tions and other meetings important to such removal or transfer. Postal Service business. § 4.6 Secretary of the Board. § 4.2 Vice Chairman. The Secretary of the Board of Gov- The Vice Chairman is elected by the ernors is appointed by the Governors Governors from among the members of and serves at the pleasure of the Gov- the Board and shall perform the duties ernors. The Secretary shall be respon- and exercise the powers of the Chair- sible for carrying out the functions of man during the Chairman’s absence or the Office of the Board of Governors, disability. The Vice Chairman serves a under the direction of the Chairman of term that commences upon election the Board. The Secretary shall also and expires at the end of the first an- issue notices of meetings of the Board nual meeting following the meeting at and its committees, keep minutes of which he or she was elected. these meetings, and take steps necessary for compliance with all statutes § 4.3 Postmaster General. and regulations dealing with public ob- The appointment and role of the servation of meetings. The Secretary Postmaster General are described at 39 shall perform all those duties incident U.S.C. 202(c), 203. The Governors set the to this office, including those duties as- compensation and benefits of the Post- signed by the Board or by the Chair- master General by resolution, subject man of the Board. The Chairman may to 39 U.S.C. 1003(a) and 3686. designate such assistant secretaries as may be necessary to perform any of the § 4.4 Deputy Postmaster General. duties of the Secretary. The appointment and role of the Dep- uty Postmaster General are described PART 5—COMMITTEES (ARTICLE V) at 39 U.S.C. 202(d), 203. The Deputy Postmaster General shall act as Post- Sec. master General during the Postmaster 5.1 Establishment and appointment. General’s absence or disability, and 5.2 Committee procedure.

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AUTHORITY: 39 U.S.C. 202, 203, 204, 205, § 6.1 Regular meetings, annual meet- 401(2), (10), 1003. ing. SOURCE: 73 FR 78983, Dec. 24, 2008, unless The Board shall meet regularly on a otherwise noted. schedule established by the Board. The first regular meeting of each calendar § 5.1 Establishment and appointment. year is designated as the annual meet- From time to time the Board may es- ing. Consistent with the provisions of tablish by resolution special and stand- §§ 6.6 and 7.5 of these bylaws, the time ing committees of one or more mem- or place of a regular or annual meeting bers of the Board. The Board shall may be varied by recorded vote, with specify, in the resolution establishing the earliest practicable notice to the any committee, whether the com- Secretary. The Secretary shall dis- mittee is authorized to submit rec- tribute to the members an agenda set- ommendations or preliminary deci- ting forth the proposed subject matter sions to the Board, to conduct hearings for any regular or annual meeting in for the Board, or otherwise to take ac- advance of the meeting. tion on behalf of the Board. Each committee may exercise only those duties, § 6.2 Special meetings. functions, and powers prescribed from Consistent with the provisions of time to time by the Board, and the §§ 6.6 and 7.5 of these bylaws, the Chair- Board may affirm, alter, or revoke any man may call a special meeting of the action of any committee. Each member Board at any place in the United of the Board may have access to all of States, with the earliest practicable the information and records of any notice to the other members of the committee at any time. The Chairman Board and to the Secretary, specifying of the Board shall appoint the chair- the time, date, place, and subject mat- man, vice chairman (if any), and mem- ter of the meeting. Consistent with the bers of each committee, who serve provisions of §§ 6.6 and 7.5 of these by- terms which expire at the end of each laws, by recorded vote a majority of annual meeting. Each committee the members of the Board may call a chairman may assign responsibilities special meeting of the Board at any to members of the committee that are place in the United States, with the considered appropriate. The committee earliest practicable notice to the other chairman, or the chairman’s designee, members of the Board and to the Sec- shall preside at all meetings of the retary, specifying the time, date, place committee. and subject matter of the meeting.

§ 5.2 Committee procedure. § 6.3 Notice of meetings. The Chairman or the members of the Each committee establishes its own Board may give the notice required rules of procedure, consistent with under § 6.1 or § 6.2 of these bylaws in these bylaws, and meets as provided in oral, written, or e-mail form. Oral no- its rules. A majority of the members of tice to a member may be delivered by a committee constitute a quorum. telephone and is sufficient if made to the member personally or to a respon- PART 6—MEETINGS (ARTICLE VI) sible person in the member’s home or office. Any oral notice to a member Sec. must be subsequently confirmed by 6.1 Regular meetings, annual meeting. written or e-mail notice. Written no- 6.2 Special meetings. tice to a member may be delivered by 6.3 Notice of meetings. mail addressed to the member’s mail- 6.4 Attendance by conference telephone ing address of record filed with the Sec- call. retary. Notice by e-mail may be ad- 6.5 Minutes of meetings. dressed to the member’s e-mail address 6.6 Quorum and voting. of record filed with the Secretary. Ex- AUTHORITY: 39 U.S.C. 202, 205, 401(2), (10), cept for written or e-mail notice con- 1003, 3622, 3632; 5 U.S.C. 552b(e), (g). firming a previous oral notice, a writ- SOURCE: 73 FR 78983, Dec. 24, 2008, unless ten or e-mail notice must be sent in otherwise noted. sufficient time to reach the address of

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record at least 2 days before the meet- 6 members constitute a quorum for the ing date under normal delivery condi- transaction of business by the Board, tions. A member waives notice of any except: meeting by attending the meeting, and (a) In the appointment or removal of may otherwise waive notice of any the Postmaster General, and in setting meeting at any time. No notice— the compensation and benefits of the whether oral, written, or e-mail—to Postmaster General and Deputy Post- the Secretary is sufficient until actu- master General, 39 U.S.C. 205(c)(1) re- ally received by the Secretary. The quires a favorable vote of an absolute Secretary may not waive notice of any majority of the Governors in office; meeting. (b) In the appointment or removal of the Deputy Postmaster General, 39 § 6.4 Attendance by conference tele- U.S.C. 205(c)(2) requires a favorable phone call. vote of an absolute majority of the For regularly scheduled meetings of Governors in office and the Postmaster the Board, members are expected to at- General; tend in person. Unless prohibited by (c) In the appointment, removal, or law or by these bylaws, however, a in the setting of the compensation and member of the Board, under excep- benefits of the Secretary, Assistant tional circumstances, may participate Secretary, or other necessary staff, a in a meeting of the Board by con- favorable vote of an absolute majority ference telephone or similar commu- of the Governors in office is required; nications equipment which enables all (d) In the determination to close a persons participating in the meeting to portion of a meeting or to withhold in- hear each other and which permits full formation concerning a meeting, 5 compliance with the provisions of these U.S.C. 552b(d)(1) requires a vote of a bylaws concerning public observation majority of the entire membership of of meetings. Attendance at a meeting the Board; and by this method constitutes presence at (e) In the decision to call a meeting the meeting and a member of the Board with less than a week’s notice, 5 U.S.C. may be paid for his or her participation 552b(e)(1) requires a vote of a majority provided such meeting addresses sub- of the members of the Board. In the de- stantive, as opposed to procedural or cision to change the subject matter of administrative, matters on which the a meeting, or the determination to Board has decisionmaking authority. open or close a meeting, 5 U.S.C. 552b(e)(2) requires a vote of a majority § 6.5 Minutes of meetings. of the entire membership of the Board. The Secretary shall preserve the (f) In establishing rates or classes of minutes of Board meetings prepared competitive products of both general under § 4.6 of these bylaws. After the and not of general applicability in §§ 3.9 minutes of any meeting are approved and 3.10 of these bylaws, 39 U.S.C. by the Board, the Secretary shall 3632(a) requires the concurrence of a promptly make available to the public, majority of all of the Governors then in the Corporate Communications De- holding office. partment at Postal Service Head- (g) In removing the Inspector General quarters, or in another place easily ac- for cause, 39 U.S.C. 202(e) requires the cessible to the public, copies of the written concurrence of at least 7 Gov- minutes, except for those portions ernors. which contain information inappropriate for public disclosure under 5 U.S.C. 552(b) or 39 U.S.C. 410(c). PART 7—PUBLIC OBSERVATION (ARTICLE VII) § 6.6 Quorum and voting. As provided by 39 U.S.C. 205(c), the Sec. 7.1 Definitions. Board acts by resolution upon a major- 7.2 Open meetings. ity vote of those members who attend 7.3 Exceptions. a meeting in person or by teleconfer- 7.4 Procedure for closing a meeting. ence. No proxies are allowed in any 7.5 Public notice of meetings, subsequent vote of the members of the Board. Any changes.

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7.6 Certification and transcripts of closed of the Postal Service concerning the meetings. release of information. 7.7 Enforcement. (c) Without the permission of a ma- 7.8 Open meetings, Freedom of Information, jority of the Board, no person may par- and Privacy of Information. ticipate in, film, televise, or broadcast AUTHORITY: 39 U.S.C. 410; 5 U.S.C. 552b(a)– any portion of any meeting of the (m). Board. Any person may electronically SOURCE: 73 FR 78983, Dec. 24, 2008, unless record or photograph a meeting, as otherwise noted. long as that action does not tend to impede or disturb the members of the § 7.1 Definitions. Board in the performance of their du- For purposes of §§ 7.2 through 7.8 of ties, or members of the public while at- these bylaws: tempting to attend or observe a meet- (a) The term Board means the Board ing of the Board. The rules and pen- of Governors, and any subdivision or alties of 39 CFR Part 232, concerning committee of the Board authorized to conduct on postal property, apply with take action on behalf of the Board. regard to meetings of the Board. (b) The term meeting means the deliberations of at least the number of indi- § 7.3 Exceptions. vidual members required to take ac- Section 7.2 of these bylaws does not tion on behalf of the Board under § 5.2 apply to a portion of a meeting, and or § 6.6 of these bylaws, where such de- §§ 7.4 and 7.5 do not apply to informa- liberations determine or result in the tion concerning the meeting which oth- joint conduct or disposition of the offi- erwise would be required to be dis- cial business of the Board. The term closed to the public, if the Board prop- ‘‘meeting’’ does not include any proce- erly determines that the public inter- dural deliberations required or per- est does not require otherwise, and mitted by §§ 6.1, 6.2, 7.4, or 7.5 of these that such portion of the meeting or the bylaws. disclosure of such information is likely to: § 7.2 Open meetings. (a) Disclose matters that are: (a) It is the policy of the United (1) Specifically authorized under cri- States, established in section 2 of the teria established by an Executive order Government in the Sunshine Act, Pub- to be kept secret in the interests of na- lic Law 94–409, 90 Stat. 1241, that the tional defense or foreign policy, and public is entitled to the fullest prac- (2) In fact properly classified under ticable information regarding the deci- that Executive order; sionmaking processes of the Federal (b) Relate solely to the internal per- Government. The Postal Service is sonnel rules and practices of the Postal charged to provide the public with this Service, including the Postal Service information while protecting the rights position in negotiations or consulta- of individuals and the ability of the tions with employee organizations. Government to carry out its responsibilities. Accordingly, except as spe- (c) Disclose matters specifically ex- cifically permitted by statute, every empted from disclosure by statute portion of every meeting of the Board (other than the Freedom of Informa- of Governors is open to public observation Act, 5 U.S.C. 552), provided that tion. the statute: (b) Except as provided in § 7.3 of these (1) Requires that the matters be bylaws, every portion of every meeting withheld from the public in such a of the Board is open to public observa- manner as to leave no discretion on the tion. Members of the Board may not issue, or jointly conduct or dispose of business (2) Establishes particular criteria for of the Board without complying with withholding or refers to particular §§ 7.2 through 7.8 of these bylaws. Mem- types of matters to be withheld; bers of the public may obtain access to (d) Disclose trade secrets and com- documents considered at meetings to mercial or financial information ob- the extent provided in the regulations tained from a person and privileged or

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confidential, such as market informa- (2) The Postal Service is required by tion pertinent to Postal Service bor- law to make such disclosure on its own rowing or investments, technical or initiative before taking final action on patent information related to postal the proposal; or mechanization, or commercial infor- (j) Specifically concern the issuance mation related to purchases of real es- of a subpoena by the Postal Service, or tate; the participation of the Postal Service (e) Involve accusing any person of a in a civil action or proceeding, such as crime, or formally censuring any per- a postal rate or classification pro- son; ceeding, an action in a foreign court or (f) Disclose information of a personal international tribunal, or an arbitra- nature, such as personal or medical tion, or the initiation, conduct, or dis- data regarding any individual if disclo- position by the Postal Service of a par- sure would constitute a clearly unwar- ticular case of formal adjudication ranted invasion of personal privacy; under the procedures of 5 U.S.C. 554 or (g) Disclose investigatory records otherwise involving a determination on compiled for law enforcement purposes, the record after opportunity for a hear- or information which if written would ing. be contained in those records, but only § 7.4 Procedure for closing a meeting. to the extent that the production of those records or information would: (a) A majority of the entire member- (1) Interfere with enforcement pro- ship of the Board may vote to close a ceedings, portion of a meeting or to withhold in- (2) Deprive a person of a right to a formation concerning a meeting under fair trial or an impartial adjudication, the provisions of § 7.3 of these bylaws. The members shall take a separate (3) Constitute an unwarranted inva- vote with respect to each meeting a sion of personal privacy, portion of which is proposed to be (4) Disclose the identity of a con- closed to the public, or with respect to fidential source and, in the case of a any information which is proposed to record compiled by a criminal law en- be withheld, and shall make every rea- forcement authority in the course of a sonable effort to take any such vote at criminal investigation, or by an agency least 8 days before the date of the conducting a lawful national security meeting involved. The members may intelligence investigation, confidential take a single vote with respect to a se- information furnished only by the con- ries of meetings, portions of which are fidential source, proposed to be closed to the public, or (5) Disclose investigative techniques with respect to information concerning and procedures, or the series, so long as each portion of a (6) Endanger the life or physical safe- meeting in the series involves the same ty of law enforcement personnel; particular matters, and no portion of (h) Disclose information contained in any meeting is scheduled to be held or related to examination, operating, more than 30 days after the initial por- or condition reports prepared by, on be- tion of the first meeting in the series. half of, or for the use of an agency re- (b) Whenever any person whose inter- sponsible for the regulation or super- est may be directly affected by a por- vision of financial institutions; tion of a meeting requests that the (i) Disclose information the pre- Board close that portion to the public mature disclosure of which would be for any of the reasons referred to in likely significantly to frustrate imple- § 7.3(e), (f), or (g) of these bylaws, upon mentation of a proposed action of the request of any one of its members the Board, such as information relating to Board shall vote by recorded vote the negotiation of a labor contract or whether to close that portion of the proposed Postal Service procurement meeting. activity, except that this provision (c) The Secretary shall record the does not apply in any instance where: vote of each member participating in a (1) The Postal Service has already vote under paragraph (a) or (b) of this disclosed to the public the content or section. Within 1 day of any vote under nature of the proposed action, or paragraph (a) or (b) of this section, the

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Secretary shall make publicly avail- matter of the meeting, whether the able a written copy of the vote showing meeting is open or closed, any change the vote of each member on the ques- in the preceding, and the name and tion. If a portion of a meeting is to be phone number of the official designated closed to the public, the Secretary by the Board to respond to requests for shall, within 1 day of the vote, make information about the meeting. The publicly available a full written expla- Secretary shall also submit the an- nation of the action closing the por- nouncement and information to the tion, together with a list of all persons Corporate Communications Depart- expected to attend the meeting and ment for dissemination to the public. their affiliation. § 7.6 Certification and transcripts of § 7.5 Public notice of meetings, subse- closed meetings. quent changes. (a) At the beginning of every meeting (a) At least one week before any or portion of a meeting closed under meeting of the Board, the Secretary § 7.3(a) through (j) of these bylaws, the shall publicly announce the time, date, General Counsel shall publicly certify place, and subject matter of the meet- that, in his or her opinion, the meeting ing, whether it is to be open or closed or portion of the meeting may be to the public, and the name and phone closed to the public, stating each rel- number of the official designated by evant exemptive provision. The Sec- the Board to respond to requests for in- retary shall retain this certification, formation about the meeting. together with a statement from the of- (b) By a recorded vote, a majority of ficer presiding at the meeting which the members of the Board may deter- sets forth the time and place of the mine that the business of the Board re- meeting, and the persons present. quires a meeting to be called with less (b) The Secretary shall arrange for a than a week’s notice. At the earliest complete transcript or electronic re- practicable time, the Secretary shall cording adequate to record fully the publicly announce the time, date, proceedings to be made of each meet- place, and subject matter of the meeting or portion of a meeting of the ing, and whether it is to be open or Board which is closed to the public. closed to the public. The Secretary shall maintain a com- (c) Following the public announce- plete verbatim copy of the transcript, ment required by paragraphs (a) or (b) or a complete electronic recording of of this section: each meeting or portion of a meeting (1) As provided in § 6.1 of these by- closed to the public for at least 2 years laws, the Board may change the time after the meeting, or for 1 year after or place of a meeting. At the earliest the conclusion of any Postal Service practicable time, the Secretary shall proceeding with respect to which the publicly announce the change. meeting was held, whichever occurs (2) A majority of the entire member- later. ship of the Board may change the sub- (c) Except for those items of discus- ject matter of a meeting, or the deter- sion or testimony which the Board, by mination to open or close a meeting to a majority vote of those members who the public, if it determines by a re- are present, determines to contain in- corded vote that the change is required formation which may be withheld by the business of the Board and that under § 7.3 of these bylaws, the Sec- no earlier announcement of the change retary shall promptly make available was possible. At the earliest prac- to the public, in the Corporate Commu- ticable time, the Secretary shall pub- nications Department at Postal Serv- licly announce the change, and the ice Headquarters, or in another place vote of each member upon the change. easily accessible to the public, the (d) Immediately following each pub- transcript or electronic recording of a lic announcement required under para- closed meeting, including the testi- graphs (a), (b), or (c) of this section, mony of any witnesses received at the the Secretary shall submit for publica- meeting. The Secretary shall furnish a tion in the FEDERAL REGISTER a notice copy of this transcript, or a tran- of the time, date, place, and subject scription of this electronic recording

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disclosing the identity of each speaker, PART 10—RULES OF CONDUCT FOR to any person at the actual cost of du- POSTAL SERVICE GOVERNORS plication or transcription. (ARTICLE X) § 7.7 Enforcement. Sec. (a) Under 5 U.S.C. 552b(g), any person 10.1 Applicability. may bring a proceeding in the United 10.2 Advisory service. States Court of Appeals for the District 10.3 Post-employment activities. of Columbia to set aside any provisions 10.4 Financial disclosure reports. of these bylaws which are not in accord AUTHORITY: 39 U.S.C. 401(2), (10). with the requirements of 5 U.S.C. 552b (a)–(f) and to require the promulgation SOURCE: 73 FR 78983, Dec. 24, 2008, unless of provisions that are in accord with otherwise noted. those requirements. (b) Under 5 U.S.C. 552b(h) any person § 10.1 Applicability. may bring a civil action against the This part contains rules of conduct Board in an appropriate U.S. District for the members of the Board of Gov- Court to obtain judicial review of the ernors of the United States Postal alleged failure of the Board to comply Service. As special employees within with 5 U.S.C. 552b(a)–(f). The burden is the meaning of 18 U.S.C. 202(a), the on the Board to sustain its action. The members of the Board are also subject court may grant appropriate equitable to the Standards of Ethical Conduct for relief, including enjoining future viola- Employees of the Executive Branch, 5 tions, or ordering the Board to make CFR part 2635, and Postal Service regu- public information improperly with- lations supplemental thereto, 5 CFR held from the public. part 7001. (c) Under 5 U.S.C. 552b(i) the court may assess against any party reason- § 10.2 Advisory service. able attorney fees and other litigation (a) The General Counsel is the Eth- costs reasonably incurred by any other ical Conduct Officer of the Postal Serv- party who substantially prevails, ex- ice and the Designated Agency Ethics cept that the court may assess costs Official for purposes of the Ethics in against the plaintiff only if the court Government Act, as amended, and the finds that he initiated the suit pri- implementing regulations of the Office marily for frivolous or dilatory pur- of Government Ethics, including 5 CFR poses. part 2638. (b) A Governor may obtain advice § 7.8 Open meetings, Freedom of Infor- and guidance on questions of conflicts mation, and Privacy of Information. of interest, and may request any ruling The provisions of 5 U.S.C. 552b(c) (1)– provided for by either the Standards of (10), enacted by Public Law 94–409, the Ethical Conduct for Employees of the Government in the Sunshine Act, gov- Executive Branch, or the Postal Serv- ern in the case of any request under ice regulations supplemental thereto, the Freedom of Information Act, 5 from the General Counsel or a des- U.S.C. 552, to copy or to inspect the ignated assistant. transcripts or electronic recordings de- (c) If the General Counsel determines scribed in § 7.6 of these bylaws. Nothing that a Governor is engaged in activity in 5 U.S.C. 552b authorizes the Board to which involves a violation of federal withhold from any individual any statute or regulation, including the record, including the transcripts or ethical conduct regulations contained electronic recordings described in § 7.6 in 5 CFR parts 2635 and 7001, or conduct of these bylaws, to which the indi- which creates the appearance of such a vidual may otherwise have access violation, he or she shall bring this to under 5 U.S.C. 552a, enacted by the Pri- the attention of the Governor or shall vacy Act of 1974, Public Law 93–579. notify the Chairman of the Board of Governors, or the Vice Chairman, as PARTS 8–9 [RESERVED] appropriate. 21

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§ 10.3 Post-employment activities. with the provisions of this section Governors are subject to the restric- shall, within 60 days after the date of tions on the post-employment activi- filing, be reviewed by the General ties of special Government employees Counsel who shall either approve the imposed by 18 U.S.C. 207. Guidance con- report, or make an initial determina- cerning post-employment restrictions tion that a conflict or appearance applicable to Governors may be ob- thereof exists. If the General Counsel tained in accordance with section determines initially that a conflict or 10.2(b). the appearance of a conflict exists, he or she shall inform the Governor of his § 10.4 Financial disclosure reports. determination. (a) Requirement of submission of re- (2) If the General Counsel considers ports. At the time of their nomination, that additional information is needed Governors complete a financial disclo- to complete the report or to allow an sure report which, under the practice adequate review to be conducted, he or of the Senate Governmental Affairs she shall request the reporting Gov- Committee, is kept confidential. Be- ernor to furnish that information by a cause the Director of the Office of Gov- specified date. ernment Ethics has ruled that Gov- (3) The General Counsel shall refer to ernors who do not perform the duties of the Chairman of the Board of Gov- their office for more than 60 days in ernors or the Vice Chairman the name any calendar year are not required to of any Governor he or she has reason- file financial disclosure reports that able cause to believe has wrongfully are open to the public, Governors file failed to file a report or has falsified or non-public reports annually, in accord- wrongfully failed to report required in- ance with this section. A Governor who formation. performs the duties of his or her office (e) Custody of and public access to re- for more than 60 days in a particular ports. (1) Retention of reports. Each re- calendar year is required to file a pub- port filed with the General Counsel lic report in accordance with 5 CFR shall be retained by him or her for a 2634.204(c). period of six years. After the six-year (b) Person with whom reports should be period, the report shall be destroyed filed and time for filing. (1) A Governor unless needed in connection with an in- shall file a financial disclosure report vestigation then pending. with the General Counsel on or before (2) Confidentiality of reports. Unless a May 15 of each year when the Governor public report is required by this sec- has been in office for more than 60 con- tion, the financial disclosure reports secutive calendar days during the pre- filed by Governors shall not be made vious year. public. (2) The General Counsel may, for good cause shown, grant to a Governor an extension of up to 45 days. An addi- PART 11—ADVISORY BOARDS tional extension of up to 45 days may (ARTICLE XI) be granted by the Director of the Office of Government Ethics for good cause AUTHORITY: 39 U.S.C. 202, 205, 401(2), (10), shown. 402, 403. (c) Information required to be reported. Each report shall be a full and com- § 11.1 Establishment. plete statement, on the form prescribed The Board of Governors may create by the General Counsel and the Office such advisory boards as it may deem of Government Ethics and in accord- appropriate and may appoint persons ance with instructions issued by him or to serve thereon or may delegate such her. The form currently in use is latter authority to the Postmaster Standard Form 278. General. (d) Reviewing reports. (1) Financial disclosure reports filed in accordance [73 FR 78983, Dec. 24, 2008]

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PART 20—INTERNATIONAL POSTAL International mail manual Date of issuance SERVICE Issue 12 ...... July 8, 1993. Issue 13 ...... February 3, 1994. Sec. Issue 14 ...... August 4, 1994. 20.1 International Mail Manual; incorpora- Issue 15 ...... July 9, 1995. tion by reference. Issue 16 ...... January 4, 1996. Issue 17 ...... September 12, 1996. 20.2 Effective date of the International Mail Issue 18 ...... June 9, 1997. Manual. Issue 19 ...... October 9, 1997. 20.3 Availability of the International Mail Issue 20 ...... July 2, 1998. Manual. Issue 21 ...... May 3, 1999. 20.4 Amendments to the International Mail Issue 22 ...... January 1, 2000. Manual. Issue 23 ...... July 1, 2000. 20.5 [Reserved] Issue 24 ...... January 1, 2001. Issue 25 ...... July 1, 2001. AUTHORITY: 5 U.S.C. 552(a); 13 U.S.C. 301– Issue 26 ...... January 1, 2002. 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 401, 403, Issue 27 ...... June 30, 2002. 404, 407, 414, 416, 3001–3011, 3201–3219, 3403–3406, Issue 28 ...... January 1, 2003. 3621, 3622, 3626, 3632, 3633, and 5001. Issue 29 ...... July 1, 2003. Issue 30 ...... August 1, 2004. SOURCE: 69 FR 59546, Oct. 5, 2004, unless Issue 31 ...... May 31, 2005. otherwise noted. Issue 35 ...... May 12, 2008. Issue 36 ...... May 11, 2009. § 20.1 International Mail Manual; incorporation by reference. [75 FR 34017, June 16, 2010] (a) Section 552(a) of Title 5, U.S.C., relating to the public information re- § 20.2 Effective date of the Inter- quirements of the Administrative Pro- national Mail Manual. cedure Act, provides in pertinent part The provisions of the International that matter reasonably available to Mail Manual Issue 36, effective May 11, the class of persons affected thereby is 2009, are applicable with respect to the deemed published in the FEDERAL REG- international mail services of the Post- ISTER when incorporated by reference al Service. therein with the approval of the Direc- [75 FR 34017, June 16, 2010] tor of the Federal Register. In conformity with that provision, with 39 § 20.3 Availability of the International U.S.C. 410(b)(1), and as provided in this Mail Manual. part, the U.S. Postal Service hereby in- Copies of the International Mail corporates by reference its Inter- Manual may be purchased from the Su- national Mail Manual (IMM), Issue 36, perintendent of Documents, U.S. Gov- dated May 11, 2009. The Director of the ernment Printing Office, Washington, Federal Register approves this incorpo- DC 20402–9371. The IMM is available for ration by reference in accordance with examination on the Internet at http:// 5 U.S.C. 552(a) and 1 CFR part 51. (b) The current Issue of the IMM is pe.usps.gov. Copies are available for incorporated by reference in paragraph public inspection during regular busi- (a) of this section. Successive Issues of ness hours at area and district offices the IMM are listed in the following of the Postal Service and at all post of- table: fices, classified stations, and classified branches. You may also inspect a copy International mail manual Date of issuance at the U.S. Postal Service Library, 475 L’Enfant Plaza West SW., Washington, Issue 1 ...... November 13, 1981. Issue 2 ...... March 1, 1983. DC 20260–1641, or at the National Ar- Issue 3 ...... July 4, 1985. chives and Records Administration Issue 4 ...... September 18, 1986. (NARA). For information on the avail- Issue 5 ...... April 21, 1988. Issue 6 ...... October 5, 1988. ability of this material at NARA, call Issue 7 ...... July 20, 1989. 202–741–6030, or go to: http:// Issue 8 ...... June 28, 1990. www.archives.gov/federallregister/ Issue 9 ...... February 3, 1991. Issue 10 ...... June 25, 1992. codeloflfederallregulations/ Issue 11 ...... December 24, 1992. ibrllocations.html.

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§ 20.4 Amendments to the Inter- Manual will be published in the FED- national Mail Manual. ERAL REGISTER and will be available in New issues of the International Mail the Postal Bulletin, copies of which Manual will be incorporated by ref- may be accessed at http://www.usps.com/ erence into this part and will be avail- cpim/ftp/bulletin/pb.htm. able at http://pe.usps.gov. The text of amendments to the International Mail § 20.5 [Reserved]

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General Information on Postal § 111.2 Availability of the Mailing Service Standards of the United States Postal Service, Domestic Mail Man- ual. PART 111—GENERAL INFORMA- (a) Copies of the Mailing Standards TION ON POSTAL SERVICE of the United States Postal Service, Domestic Mail Manual, both current Sec. and previous issues, are available dur- 111.1 Mailing Standards of the United ing regular business hours for reference States Postal Service, Domestic Mail and public inspection at the U.S. Post- Manual; incorporation by reference of al Service Library, National Head- regulations governing domestic mail quarters in Washington, DC. Copies of services. only the current issue are available 111.2 Availability of the Mailing Standards of the United States Postal Service, Do- during regular business hours for pub- mestic Mail Manual. lic inspection at area and district of- 111.3 Amendments to the Mailing Standards fices of the Postal Service and at all of the United States Postal Service, Do- post offices, classified stations, and mestic Mail Manual. classified branches. The Mailing Stand- 111.4 Approval of the Director of the Fed- ards of the United States Postal Serv- eral Register. ice, Domestic Mail Manual is available 111.5 [Reserved] for examination on the Internet at http://pe.usps.gov. AUTHORITY: 5 U.S.C. 552(a); 13 U.S.C. 301– 307; 39 U.S.C. 101, 401, 403, 404, 407, 414, 416, (b) A copy of the current Mailing 3001–3011, 3201–3219, 3403–3406, 3621, 3622, 3626, Standards of the United States Postal 3632, 3633, and 5001. Service, Domestic Mail Manual is on file at the National Archives and SOURCE: 44 FR 39852, July 6, 1979, unless Records Administration (NARA). For otherwise noted. information on the availability of this § 111.1 Mailing Standards of the material at NARA, call 202–741–6030, or United States Postal Service, Do- go to: http://www.archives.gov/ mestic Mail Manual; incorporated federallregister/ by reference of regulations gov- codeloflfederallregulations/ erning domestic mail services. ibrllocations.html. (c) Subscriptions to the Mailing Section 552(a) of title 5, U.S.C., relat- Standards of the United States Postal ing to the public information require- Service, Domestic Mail Manual can be ments of the Administrative Procedure purchased by the public from the Su- Act, provides in pertinent part that ‘‘* perintendent of Documents, Wash- * * matter reasonably available to the ington, DC 20402–9375. class of persons affected thereby is deemed published in the FEDERAL REG- [62 FR 14827, Mar. 28, 1997, as amended at 69 ISTER when incorporated by reference FR 18803, Apr. 9, 2004; 69 FR 59139, Oct. 4, 2004; therein with the approval of the Direc- 70 FR 14535, Mar. 23, 2005] tor of the Federal Register. In con- ’’ § 111.3 Amendments to the Mailing formity with that provision, and with Standards of the United States 39 U.S.C. section 410(b)(1), and as pro- Postal Service, Domestic Mail Man- vided in this part, the U.S. Postal Serv- ual. ice hereby incorporates by reference in (a) Except for interim or final regula- this part, the Mailing Standards of the tions published as provided in para- United States Postal Service, Domestic graph (b) of this section, only notices Mail Manual, a looseleaf document rather than complete text of changes published and maintained by the Post- made to the Mailing Standards of the al Service. United States Postal Service, Domestic [62 FR 14827, Mar. 28, 1997, as amended at 69 Mail Manual are published in the FED- FR 59139, Oct. 4, 2004; 70 FR 14535, Mar. 23, ERAL REGISTER. These notices are pub- 2005] lished in the form of one summary

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transmittal letter for each issue of the Postal Bulletin as provided in para- Mailing Standards of the United States graph (c) are not deemed final under Postal Service, Domestic Mail Manual. the provisions of this part 111. A complete issue of the Mailing Stand- (f) For references to amendments to ards of the United States Postal Serv- the Mailing Standards of the United ice, Domestic Mail Manual, including States Postal Service, Domestic Mail the text of all changes published to Manual adopted under paragraph (b) of date, will be filed with the Director, Of- this section after issuance of the most fice of the Federal Register. Sub- recent transmittal letter (termed Sum- scribers to the Mailing Standards of mary of Changes in the Mailing Stand- the United States Postal Service, Do- ards of the United States Postal Serv- mestic Mail Manual receive the latest ice, Domestic Mail Manual) listed issue of the Mailing Standards of the below, see § 111.3 in the List of CFR United States Postal Service, Domestic Sections affected at the end of this vol- Mail Manual from the Government ume. Printing Office. Transmittal letter Federal Register (b) When the Postal Service invites for issue Dated publication comments from the public on a proposed change to the Mailing Standards 1 ...... July 30, 1979 ...... 44 FR 39742. 2 ...... May 15, 1980 ...... 45 FR 42616. of the United States Postal Service, 3 ...... July 30, 1980 ...... 45 FR 73925. Domestic Mail Manual, the proposed 4 ...... Oct. 1, 1980 ...... 46 FR 10154. change and, if adopted, the full text of 5 ...... Mar. 1, 1981 ...... 46 FR 25446. 6 ...... July 7, 1981 ...... 46 FR 58079. the interim or the final regulation is 7 ...... Nov. 1, 1981 ...... 47 FR 8179. published in the FEDERAL REGISTER. 8 ...... Jan. 21, 1982 ...... 47 FR 8358. (c) The Postal Bulletin contains the 9 ...... May 1, 1982 ...... 47 FR 27266. full text of all interim and final regula- 10 ...... Aug. 1, 1982 ...... 47 FR 43952. 11 ...... Jan. 20, 1983 ...... 48 FR 10649. tions published as provided in para- 13 ...... Dec. 29, 1983 ...... 49 FR 18304. graph (b) of this section, and the full 14 ...... Apr. 12, 1984 ...... 49 FR 26228. text of all other changes to the Mailing 15 ...... July 12, 1984 ...... 49 FR 33248. 16 ...... Sept. 27, 1984 ...... 49 FR 47232. Standards of the United States Postal 17 ...... Dec. 20, 1984 ...... 50 FR 5580. Service, Domestic Mail Manual that 18 ...... Feb. 21, 1985 ...... 50 FR 12019. are summarized in the notices pub- 19 ...... June 7, 1985 ...... 50 FR 30834. 20 ...... Nov. 14, 1985 ...... 51 FR 8495. lished under paragraph (a) of this sec- 21 ...... Sept. 4, 1986 ...... 51 FR 43910. tion, except for nonsubstantive 22 ...... Jan.22, 1987 ...... 52 FR 10750. changes and corrections of typo- 23 ...... May 1, 1987 ...... 52 FR 23981. graphical errors. The Postal Bulletin is 24 ...... Sept. 20, 1987 ...... 52 FR 34778. 25 ...... Dec. 20, 1987 ...... 52 FR 48437. a biweekly document issued by the 26 ...... April 3, 1988 ...... 53 FR 18557. Postal Service to amend and revise 27 ...... June 19, 1988 ...... 53 FR 21821. policies and procedures. A 1-year sub- 28 ...... Sept. 18, 1988 ...... 53 FR 35315. 29 ...... Dec.18, 1988 ...... 53 FR 49658. scription to the Postal Bulletin and 30 ...... Mar. 19, 1989 ...... 54 FR 9212. certain back copies can be purchased 31 ...... June 18, 1989 ...... 54 FR 27880. by the public from the Superintendent 32 ...... Sept. 17, 1989 ...... 54 FR 37795. of Documents, Washington, DC 20402– 33 ...... Dec. 17, 1989 ...... 54 FR 50619. 34 ...... Mar. 18, 1990 ...... 55 FR 10061. 9371. 35 ...... June 17, 1990 ...... 55 FR 24561. (d) Interim regulations published in 36 ...... Sept. 16, 1990 ...... 55 FR 40658. full text or referenced as provided in 37 ...... Dec. 16, 1990 ...... 56 FR 1112. 38 ...... Feb. 24, 1991 ...... 56 FR 11513. paragraphs (b) and (c) of this section, 39 ...... June 16, 1991 ...... 56 FR 56015 are published, as appropriate, in the 40 ...... September 15, 1991 56 FR 56013 Mailing Standards of the United States 41 ...... December 15, 1991 .. 57 FR 21611 Postal Service, Domestic Mail Manual 42 ...... March 15, 1992 ...... 57 FR 21613 43 ...... June 21, 1992 ...... 57 FR 37884 in full text or referenced at the place 44 ...... September 20, 1992 61 FR 67218 where they would appear if they be- 45 ...... December 20, 1992 .. 61 FR 67218 come final regulations. 46 ...... July 1, 1993 ...... 61 FR 67218 47 ...... April 10, 1994 ...... 61 FR 67218 (e) Announcements of changes to the 48 ...... January 1, 1995 ...... 61 FR 67218 Mailing Standards of the United States 49 ...... September 1, 1995 ... 61 FR 67218 Postal Service, Domestic Mail Manual 50 ...... July 1, 1996 ...... 61 FR 60190 not published in the FEDERAL REGISTER 51 ...... January 1, 1997 ...... 61 FR 64618 52 ...... July 1, 1997 ...... 62 FR 30457 as provided in paragraphs (a) and (b) of 53 ...... January 1, 1998 ...... 62 FR 63851 this section and not published in the 54 ...... January 10, 1999 ...... 64 FR 39

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ritories of Puerto Rico and the U.S. Transmittal letter Dated Federal Register for issue publication Virgin Islands, and intra-SCF mail 55 ...... January 10, 2000 ...... 65 FR 1321 originating and destinating in the fol- 56 ...... January 7, 2001 ...... 66 FR 8370 lowing 3-digit ZIP Code TM areas in the 57 ...... June 30, 2002 ...... 67 FR 46875 state of Alaska or designated portions 58 ...... August 10, 2003 ...... 68 FR 66018 Premier Edition .. January 6, 2005 ...... 70 FR 14535 thereof: 995 (5-digit ZIP Code areas Issue 300 ...... January 8, 2006 ...... 73 FR 25509 99540 through 99591) 996, 997, 998, and Issue 300 ...... July 15, 2007 ...... 73 FR 25509 999. First-Class Mail pieces addressed Issue 300 ...... May 12, 2008 ...... 75 FR 31702 Issue 300 ...... May 11, 2009 ...... 75 FR 31702 to a destination 3-digit ZIP Code area outside of an origin intra-SCF service area may be considered for overnight [45 FR 40115, June 13, 1980] delivery from that origin SCF, if that EDITORIAL NOTE: For FEDERAL REGISTER ci- mail is accepted before the day-zero tations affecting § 111.3, see the List of CFR Critical Entry Time at origin, if suffi- Sections Affected, which appears in the cient customer need exists [the des- Finding Aids section of the printed volume tination SCF receives at least 1.5 per- and at www.fdsys.gov. cent of the total annual First-Class § 111.4 Approval of the Director of the Mail volume originating from the ori- Federal Register. gin Processing & Distribution Center/ Incorporation by reference of the Facility (OPDC/F)], and if operational publication now titled the Mailing and transportation feasibility permit. Standards of the United States Postal (b) A 2-day service standard is estab- Service, Domestic Mail Manual was ap- lished for all domestic First-Class Mail proved by the Director of the Federal pieces properly accepted before the Register under 5 U.S.C 552(a) and 1 CFR day-zero Critical Entry Time at origin part 51 on June 4, 2010. if a 1-day service standard is not required, and if the origin PDC/F to Area (5 U.S.C. 552(a); 39 U.S.C. 401, 404, 407, 408, Distribution Center surface transpor- 3001–3011, 3201–3218, 3403–3405, 3601, 3621; 42 tation drive time is 12 hours or less, U.S.C. 1973cc–13, 1973cc–14) unless the origin and destination are [49 FR 47389, Dec. 4, 1984, as amended at 70 within the state of Alaska; or if the or- FR 14535, Mar. 23, 2005; 73 FR 25509, May 7, igin and delivery address are sepa- 2008; 75 FR 31702, June 4, 2010] rately in the territories of Puerto Rico and the U.S. Virgin Islands; or if the § 111.5 [Reserved] mail is intra-SCF and originating from or destinating to one of the following 3- PART 121—SERVICE STANDARDS digit ZIP Code areas in Alaska or des- FOR MARKET-DOMINANT MAIL ignated portions thereof: 995 (5-digit PRODUCTS ZIP Code areas 99540 through 99591), 996, 997, 998, and 999. Sec. (c) A 3-day service standard is estab- 121.1 First-Class Mail. lished for all remaining domestic First- 121.2 Periodicals. Class Mail pieces properly accepted be- 121.3 Standard mail. fore the day-zero Critical Entry Time 121.4 Package services. at origin, if neither a 1-day nor a 2-day APPENDIX A TO PART 121—SERVICE STANDARD service standard is required and DAY RANGE TABLES (1) Both the origin SCF and the deliv- AUTHORITY: 39 U.S.C., 101, 401, 403, 404, 1001, ery address are within the contiguous 3691. 48 states; SOURCE: 72 FR 72228, Dec. 19, 2007, unless (2) The origin SCF is in the contig- otherwise noted. uous 48 states, and the delivery address is in either of the following: the 995 3- § 121.1 First-Class Mail. digit ZIP Code area in the state of (a) For all intra-Sectional Center Fa- Alaska, or the 968 3-digit ZIP Code area cility (SCF) domestic First-Class Mail® in the state of Hawaii, or in the 006, pieces properly accepted before the 007, or 009 3-digit ZIP Code areas of the day-zero Critical Entry Time at origin, territory of Puerto Rico; the service standard is 1-day (over- (3) The origin is in the 006, 007 or 009 night), except for mail between the ter- 3-digit ZIP Code areas of the territory

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of Puerto Rico and the delivery address pieces from the 3-digit ZIP Code area is in the contiguous 48 states; in which that inbound mail’s des- (4) The origin SCF is in the state of ignated International Service Center is Hawaii and the delivery address is in located to the 3-digit ZIP Code of the the territory of Guam; the origin is in delivery address. the territory of Guam and the delivery address is in the state of Hawaii; or § 121.2 Periodicals. (5) Both the origin SCF and the deliv- (a) End-to-End. (1) For all SCF turn- ery address are within the state of around Periodicals properly accepted Alaska. before the established and published (d) A 4-day service standard is estab- day-zero Critical Entry Time at origin, lished for all remaining First-Class where the origin P&DC/F and SCF are Mail pieces properly accepted before in the same building, the service stand- the day-zero Critical Entry Time at or- ard is 1-day (overnight), except for mail igin, if either a 1-day, 2-day, or 3-day between the territories of Puerto Rico service standard is not required, and if: and the U.S. Virgin Islands, and mail (1) The origin SCF is in the contig- originating or destinating in the fol- uous 48 states and the delivery address lowing 3-digit ZIP Code areas within is in either of the following: any por- the state of Alaska or designated portion of the state of Alaska not in the tions thereof: 995 (5-digit ZIP Code 995 3-digit ZIP Code area; or any por- areas 99540 through 99591), 996, 997, 998, tion of the state of Hawaii not in the and 999. 968 3-digit ZIP Code area; or the terri- (2) The Periodicals service standard tory of the U.S. Virgin Islands. is the sum of the applicable (1-to-3-day) (2) The delivery address is in the con- First-Class Mail service standard plus tiguous 48 states and the origin is in ei- one day, for each 3-digit ZIP Code ori- ther of the following: the state of Alas- gin-destination pair for which Periodi- ka, the state of Hawaii, or the terri- cals are accepted before the day zero tory of the U.S. Virgin Islands; Critical Entry Time at origin and (3) The origin and delivery address merged with First-Class Mail pieces for are in different states or territories, surface transportation (as defined by excluding mail to and from the terri- the Periodicals Origin Split and First- tory of Guam and mail between the Class Mail mixed Area Distribution territories of Puerto Rico and the U.S. Center/Automated Area Distribution Virgin Islands. Center (ADC/AADC) Domestic Mail (e) A 5-day service standard is estab- Manual (incorporated by reference; see lished for all remaining domestic First- § 111.2) label list L201). Class Mail pieces properly accepted be- (3) The Periodicals service standard fore the day-zero Critical Entry Time for mail between the territories of at origin, if those pieces originate in Puerto Rico and the U.S. Virgin Is- the territory of Guam but are not des- lands is 3 days. tined for Guam or the state of Hawaii, (4) The Periodicals service standard or if those pieces originate other than for mail between the state of Hawaii in Guam or Hawaii and are destined for and the territory of Guam is 4 days. Guam. (5) The Periodicals service standard (f) The service standard for Outbound for intra-Alaska mail that is not over- Single-Piece First-Class Mail Inter- night is 2 to 4 days for the following 3- nationalTM pieces properly accepted digit ZIP Code areas or designated por- before the day-zero Critical Entry tions thereof: 995 (5-digit ZIP Code Time at origin is equivalent to the areas 99540 through 99591), 996, 997, 998, service standard for domestic First- and 999. Class Mail from the same origin 3-digit (6) The Periodicals service standard ZIP Code to the 3-digit ZIP Code area for each remaining 3-digit ZIP Code or- in which that origin’s designated Inter- igin-destination pair within the 48 con- national Service Center is located. tiguous states, for which Periodicals (g) The service standard for Inbound are accepted before the day zero Crit- Single-Piece First-Class Mail Inter- ical Entry Time at origin, is the sum of national is equivalent to the service 4 or 5 days, plus the number of addi- standard for domestic First-Class Mail tional days (from 1 to 4) required for

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surface transportation between each 3- Time at the proper destination NDC in digit ZIP Code origin-destination pair. the contiguous 48 states, and that are (7) The Periodicals service standard addressed for delivery in the contig- for each remaining 3-digit ZIP Code or- uous 48 states, have a service standard igin-destination pair, for which Peri- of 1 or 2 days, corresponding to the odicals are accepted before the day standard for mail qualifying for the zero Critical Entry Time at origin, is destination ADC rate, based on wheth- the sum of 4 or 5 days, plus the number er the destination ADC and SCF are in of additional days (from 4 to 15) re- the same building. quired for intermodal (highway, boat, (4) Periodicals that qualify for a Des- air-taxi) transportation outside of the tination Network Distribution Center 48 contiguous states for each 3-digit containerized rate, that are accepted ZIP Code origin-destination pair. before the day-zero Critical Entry (b) Destination Entry. (1) Periodicals Time at the proper destination NDC in that qualify for a Destination Delivery the 48 contiguous states, and that are Unit (DDU) or Destination Sectional addressed for delivery in the states of Center Facility (DSCF) rate, and that Alaska or Hawaii, or the territories of are accepted before the day-zero Crit- Guam, Puerto Rico, or the U.S. Virgin ical Entry Time at the proper DDU or Islands, have a service standard of 5 to DSCF, have a 1-day (overnight) service 8 days, corresponding to the standard standard, except for mail dropped at for mail qualifying for the destination the SCF in the territory of Puerto Rico ADC rate, which is based on the num- and destined for the territory of the ber of days required for transportation U.S. Virgin Islands, and intra SCF mail outside of the 48 contiguous states and in the following 3-digit ZIP Code areas whether the destination ADC and SCF in the state of Alaska or designated are in the same building. portions thereof: 995 (5-digit ZIP Code (5) Periodicals that qualify for a Des- areas 99540 through 99591), 996, 997, 998 tination Area Distribution Center and 999. (DADC) rate and that are accepted be- (2) Periodicals that qualify for a Des- fore the day zero Critical Entry Time tination Area Distribution Center at the proper DADC in the contiguous (DADC) rate, and that are accepted be- 48 states for delivery to addresses in fore the day zero Critical Entry Time the state of Alaska, or the territories at the proper DADC, unless the ADC is of Guam or the U.S. Virgin Islands, located with the 48 contiguous states have a service standard of 7 days. and the destination is not, and where [72 FR 72228, Dec. 19, 2007, as amended at 75 the DADC and DSCF are not the same FR 9344, Mar. 2, 2010] building, have a 2-day service standard, EFFECTIVE DATE NOTE: At 76 FR 37659, June unless the destination is the Alaska 997 28, 2011, § 121.2 was amended by revising para- 3-digit ZIP Code area. Mail that quali- graph (c), effective Jan. 22, 2012. For the con- fies for a Destination Sectional Center venience of the user, the revised text is set Facility (DSCF) rate has a 2-day serv- forth as follows: ice standard, if it is accepted before the § 121.2 Periodicals. day-zero Critical Entry Time, and the mail is dropped at the SCF in the terri- * * * * * tory of Puerto Rico and is destined for the territory of the U.S. Virgin Islands; (c) Combined Periodicals/Standard Mail mail- or if the mail is intra-SCF in the fol- ing. The Postal Service handles combined mailings of Periodicals flats and Standard lowing 3-digit ZIP Code areas of the Mail flats as Standard Mail. Periodicals flats state of Alaska: 996, 998 and 999. Peri- included within mailings of combined Stand- odicals that qualify for a DADC rate, ard Mail flats and Periodicals flats are sub- and that are accepted before the day ject to the service standards applicable to zero Critical Entry Time at the Alaska Standard Mail in § 121.3. 997 DADC have a 3-day service standard. § 121.3 Standard Mail. (3) Periodicals that qualify for a Des- (a) End-to-End. (1) The service stand- tination Network Distribution Center ard for Sectional Center Facility (SCF) containerized rate, that are accepted turnaround Standard Mail® pieces ac- before the day-zero Critical Entry cepted at origin before the day zero

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Critical Entry Time is 3 days when the cility (DSCF) rate and that are accept- origin Processing & Distribution Cen- ed before the day zero Critical Entry ter/Facility (OPD&C/F) and the SCF Time at the proper DSCF have a 3-day are the same building, except for mail service standard, except for mail between the territories of Puerto Rico dropped at the SCF in the territory of and the U.S. Virgin Islands. Puerto Rico and destined for the terri- (2) The service standard for Area Dis- tory of the U.S. Virgin Islands. tribution Center (ADC) turnaround (3) Standard Mail pieces that qualify Standard Mail pieces accepted at ori- for a Destination Sectional Center Fa- gin before the day zero Critical Entry cility (DSCF) rate, and that are accept- Time is 4 days when the OPD&C/F and ed before the day zero Critical Entry the ADC are the same building, unless Time at the SCF in the territory of the ADC is in the contiguous 48 states Puerto Rico, have a 4-day service and the delivery address is not, or standard if destined for the territory of when the mail is between the terri- the U.S. Virgin Islands. tories of Puerto Rico and the U.S. Vir- (4) Standard Mail pieces that qualify gin Islands. for a Destination Network Distribution (3) The service standard for intra- Center (DNDC) rate, and that are ac- Network Distribution Center (NDC) cepted before the day-zero Critical Standard Mail pieces accepted at ori- Entry Time at the proper DNDC have a gin before the day-zero Critical Entry 5-day service standard, if both the ori- Time is 5 days for each remaining 3- gin and the destination are in the 48 digit ZIP Code origin-destination pair contiguous states. within the same Network Distribution (5) Standard Mail pieces that qualify Center service area if the origin and for a Destination Network Distribution destination are within the contiguous Center (DNDC) rate, and that are ac- 48 states; the same standard applies to cepted before the day-zero Critical mail that is intra-Alaska, intra-Ha- Entry Time at the proper DNDC in the waii, or between the state of Hawaii contiguous 48 states for delivery to ad- and the territory of Guam. dresses in the states of Alaska or Ha- (4) For each remaining 3-digit ZIP waii or the territories of Guam, Puerto Code origin-destination pair within the Rico, or the U.S. Virgin Islands, have a 48 contiguous states, the service stand- service standard of either 9 or 10 days, ard for Standard Mail pieces accepted depending on the 3-digit origin-destina- at origin before the day zero Critical tion ZIP Code pair. For each such pair, Entry Time is the sum of 6 days plus the applicable day within the range is the number of additional days (from 1 based on the number of days required to 4) required for surface transpor- for transportation outside of the 48 tation between each 3-digit ZIP Code contiguous states. origin-destination pair. (5) For each remaining 3-digit ZIP [72 FR 72228, Dec. 19, 2007, as amended at 75 Code origin-destination pair, the serv- FR 9344, Mar. 2, 2010] ice standard for Standard Mail pieces accepted at origin before the day zero § 121.4 Package Services. Critical Entry Time is the sum of 5 or (a) End-to-End. (1) The service stand- 6 days plus the number of additional ard for Sectional Center Facility (SCF) days (from 4 to 16) required for inter- turnaround Package Services mail ac- modal (highway, boat, air-taxi) trans- cepted at the origin SCF before the day portation outside of the 48 contiguous zero Critical Entry Time is 2 days when states for each 3-digit ZIP Code origin- the origin Processing & Distribution destination pair. Center/Facility and the SCF are the (b) Destination Entry. (1) Standard same building, except for mail between Mail pieces that qualify for a Destina- the territories of Puerto Rico and the tion Delivery Unit (DDU) rate and that U.S. Virgin Islands. are accepted before the day zero Crit- (2) The service standard for intra- ical Entry Time at the proper DDU Network Distribution Center (NDC) have a 2-day service standard. Package Services mail accepted at ori- (2) Standard Mail pieces that qualify gin before the day-zero Critical Entry for a Destination Sectional Center Fa- Time is 3 days, for each remaining

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(non-intra-SCF) 3-digit ZIP Code ori- to the 3-digit ZIP Code in which the de- gin-destination pair within a Network livery address is located. Distribution Center service area, where (b) Destination Entry. (1) Package the origin and destination are within Services mail that qualifies for a Des- the contiguous 48 states and are not tination Delivery Unit (DDU) rate, and served by an Auxiliary Service Facil- that is accepted before the day zero ity; and for mail between the terri- Critical Entry Time at the proper tories of Puerto Rico and the U.S. Vir- DDU, has a 1-day (overnight) service gin Islands. standard. (3) The service standard for intra- (2) Package Services mail that quali- Network Distribution Center (NDC) fies for a Destination Sectional Center Package Services mail accepted at ori- Facility (DSCF) rate, and that is ac- gin before the day-zero Critical Entry cepted before the day zero Critical Time is 4 days for each remaining 3- Entry Time at the proper DSCF, has a digit ZIP Code origin-destination pair 2-day service standard, except for mail within a Network Distribution Center dropped at the SCF in the territory of service area, where the destination de- Puerto Rico and destined for the terri- livery address is served by an Auxiliary tory of the U.S. Virgin Islands. Service Facility; the same standard ap- (3) Package Services mail that quali- plies to all remaining intra-Alaska fies for a Destination Network Dis- mail and mail between the state of Ha- tribution Center (DNDC) rate, which is waii and the territory of Guam. accepted before the day-zero Critical (4) For each remaining 3-digit ZIP Entry Time at the proper DNDC or Code origin-destination pair within the Destination Auxiliary Service Facility, 48 contiguous states, the service stand- and that originates and destinates in ard for Package Services mail accepted the contiguous 48 states, has a 3-day at origin before the day zero Critical service standard. Mail that qualifies Entry Time is between 5 and 8 days. for a Destination Sectional Center Fa- For each such 3-digit ZIP Code origin- cility (DSCF) discount, and that is ac- destination pair, this is the sum of 4 cepted before the day-zero Critical days, plus the number of additional Entry Time at the SCF in the territory days (from 1 to 4) required for surface of Puerto Rico, has a 3-day service transportation between each 3-digit standard if it is destined for the terri- ZIP Code origin-destination pair, plus tory of the U.S. Virgin Islands. an additional day if the destination de- (4) Package Services mail that quali- livery address is served by an Auxiliary fies for a Destination Network Dis- Service Facility. tribution Center (DNDC) rate, and that (5) For each remaining 3-digit ZIP is accepted before the day-zero Critical Code origin-destination pair for which Entry Time at the proper DNDC in the either the origin or the destination is contiguous 48 states for delivery to ad- outside of the 48 contiguous states, the dresses in the states of Alaska or Ha- service standard for Package Services waii, or the territories of Guam, Puer- mail accepted at origin before the day to Rico, or the U.S. Virgin Islands has zero Critical Entry Time is between 7 a service standard of either 7 or 8 days, and 20 days. For each such 3-digit ZIP depending on the 3-digit ZIP Code ori- Code origin-destination pair, this rep- gin-destination pair. For each such resents the sum of 3 to 4 days, plus the pair, the applicable day within the number of days (ranging from 4 to 16) range is based on the number of days required for intermodal (highway, boat, required for transportation outside of air-taxi) transportation between each the 48 contiguous states. 3-digit ZIP Code origin-destination [72 FR 72228, Dec. 19, 2007, as amended at 75 pair. FR 9344, Mar. 2, 2010] (6) The service standard for Inbound Surface Parcel Post® pieces (subject to APPENDIX A TO PART 121—TABLES DE- Universal Postal Union rates) is the PICTING SERVICE STANDARD DAY same as the service standard for do- RANGES mestic Package Services mail from the The following tables reflect the service 3-digit ZIP Code area in which the standard day ranges resulting from the ap- International Service Center is located plication of the business rules applicable to

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the market-dominant mail products ref- CONTIGUOUS UNITED STATES—Continued erenced in §§ 121.1 through 121.4: Table 1. End-to-end service standard day Mail class End-to-end ranges for mail originating and destinating range (days) within the 48 contiguous states and the Dis- Standard Mail ...... 3–10 trict of Columbia. Package Services ...... 2–8 CONTIGUOUS UNITED STATES Table 2. End-to-end service standard day ranges for mail originating and/or desti- Mail class End-to-end range (days) nating within the states of Alaska and Ha- waii, and the territories of Guam, Puerto First-Class Mail ...... 1–3 Periodicals ...... 1–9 Rico and the U.S. Virgin Islands.

ALASKA, HAWAII & GUAM, PUERTO RICO & USVI

End-to-End To / from states of Alaska To / From 48 contiguous and Hawaii, and the Terri- Intra state / territory states tories of Guam, Puerto Rico Mail class and the U.S. Virgin Islands Puerto Puerto Puerto Alaska Hawaii & Rico & Alaska Hawaii & Rico & Alaska Hawaii & Rico & Guam USVI Guam USVI Guam USVI

First-Class Mail...... 1–3 1–3 1–2 3–4 3–5 3–4 4–5 4–5 4–5 Periodicals ...... 1–4 1–4 1–3 9–15 9–16 8–12 17–20 17–20 17–20 Standard Mail...... 3–5* 3–5 3–4 10–16 10–18 9–13 19–21 18–22 18–22 Package Services ...... 2–4 2–4 2–3 8–14 8–15 7–12 16–20 16–20 16–18 Excluding bypass mail. Table 3. Destination entry service standard day ranges for mail to the 48 contiguous states and the District of Columbia.

TABLE 3—DESTINATION ENTRY SERVICE STANDARD DAY RANGES FOR MAIL TO THE 48 CONTIGUOUS STATES AND THE DISTRICT OF COLUMBIA

Destination entry (at appropriate facility) Mail class DDU SCF ADC NDC (days) (days) (days) (days)

CONTIGUOUS UNITED STATES

Periodicals ...... 1 1 1–2 1–2 Standard Mail...... 2 3 5 Package Services...... 1 2 3 ......

Table 4. Destination entry service standard and Hawaii, and the territories of Guam, day ranges for mail to the states of Alaska Puerto Rico and the U.S. Virgin Islands.

TABLE 4—DESTINATION ENTRY SERVICE STANDARD DAY RANGES FOR MAIL TO THE STATES OF ALASKA AND HAWAII, AND THE TERRITORIES OF GUAM, PUERTO RICO AND THE U.S. VIRGIN ISLANDS

Destination entry (at appropriate facility) SCF (days) ADC (days) NDC (days) Mail class DDU Puerto Puerto Puerto (days) Alaska Hawaii Rico & Alaska Hawaii Rico & Alaska Hawaii Rico & & Guam USVI & Guam USVI & Guam USVI

ALASKA, HAWAII & GUAM, PUERTO RICO & USVI

Periodicals ...... 1 1–2 1 1–2 1–3 (AK) 1 (HI) ... 1–2 1–2 6–7 5–6 7 (JNU) 7 (GU) 7 (KTN) Standard Mail ...... 2 3 3 3–4 10 ...... 10 ...... 9 ......

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TABLE 4—DESTINATION ENTRY SERVICE STANDARD DAY RANGES FOR MAIL TO THE STATES OF ALASKA AND HAWAII, AND THE TERRITORIES OF GUAM, PUERTO RICO AND THE U.S. VIRGIN IS- LANDS—Continued

Package Services ..... 1 2 2 2–3 8 ...... 8 ...... 7 ...... AK = Alaska 3-digit ZIP Codes 995–997; JNU = Juneau AK 3-digit ZIP Code 998; KTN = Ketchikan AK 3-digit ZIP Code 999; HI = Hawaii 3-digit ZIP Codes 967 and 968; GU = Guam 3-digit ZIP Code 969.

[72 FR 72228, Dec. 19, 2007, as amended at 75 than 24 hours after the time of the scan FR 9344, Mar. 2, 2010] of the mailpiece by the Postal Auto- mated Redirection System. PART 122—SERVICE STANDARDS (b) For the market-dominant mail FOR MARKET-DOMINANT SPE- products identified above in part 121, CIAL SERVICES PRODUCTS mailers may purchase insurance from the Postal ServiceTM to provide indem- Sec. nity against loss or damage to the con- 122.1 Ancillary special services. tents of a mailpiece. The service stand- 122.2 Stand-alone special services. ard for the administrative resolution of AUTHORITY: 39 U.S.C. 101, 401, 403, 404, 1001, domestic insurance claims is that a 3691. final agency decision must be transmitted to the claimant no later than 30 SOURCE: 72 FR 72228, Dec. 19, 2007, unless otherwise noted. calendar days after the date on which the Postal Service has received all in- § 122.1 Ancillary special services. formation from the claimant necessary (a) For the market-dominant mail for analysis of the claim. products identified above in part 121, § 122.2 Stand-alone special services. mailers may purchase various ancillary special services products, which (a) The service standard for P. O. are designed to provide electronic ac- BoxTM service is that mail be available cess to information regarding delivery- for pickup at the box each delivery day related events or forwarding addresses no later than the daily ‘‘up-time’’ pub- for individual mailpieces. licly posted at the Post OfficeTM loca- (1) For the following special services, tion that includes the box section. the service standard for the electronic (b) The service standard for comple- provision of delivery-related information of Address List Services (change- tion is that it be made available to the of-address information for election sender no later than 24 hours after the boards and registration commissions, time of the recorded delivery-related correction and ZIP Code placement of scan performed by the Postal Service mailing lists, and address sequencing) on mail for which the following special is transmission of the corrected ad- services have been purchased: Domes- dresses within 15 business days of re- tic Certified MailTM service, domestic ceipt to the requester, except for the Delivery ConfirmationTM service, do- period from November 16 through Jan- mestic and inbound international Reg- uary 1. istered MailTM service, domestic Col- (c) For the domestic market-domi- lect On Delivery, domestic electronic nant mail products identified above in Return Receipt, and domestic Signa- part 121, CONFIRM® service allows sub- ture ConfirmationTM scans. scribing customers to obtain electronic (2) For domestic electronic Address information regarding when and where Correction Service, the service stand- mailpieces undergo barcode scans in ard for the electronic provision of ad- mail processing operations. The service dress change information is that it be standard for the electronic provision of made available to the sender no later CONFIRM service scan information is

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that it be made available to the sender mission of a response to the customer’s no later than 24 hours after the re- completed inquiry within 15 business corded time of the CONFIRM scan per- days of receipt of the inquiry by the formed by the Postal Service. Postal Service, excluding designated (d) The service standard for Postal postal holidays. Money Order Inquiry service is trans-

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PART 211—APPLICATION OF in the FEDERAL REGISTER and the Code REGULATIONS of Federal Regulations. (b) Except as otherwise provided by Sec. law, the resolutions of the Governors 211.1 Disposition of former title 39, U.S.C. and the Board of Governors of the U.S. 211.2 Regulations of the Postal Service. Postal Service and the bylaws of the 211.3 Executive orders and other executive Board of Governors take precedence pronouncements; circulars, bulletins, and other issuances of the Office of Manage- over all regulations issued by other au- ment and Budget. thority. 211.4 Interim personnel regulations. (c) The adoption, by reference or oth- AUTHORITY: 39 U.S.C. 201, 202, 401(2), 402, erwise, of any rule of law or regulation 403, 404, 410, 1001, 1005, 1209; Pub. L. 91–375, in this or any other regulation of the Secs. 3–5, 84 Stat. 773–75. Postal Service shall not be interpreted

SOURCE: 38 FR 20402, July 31, 1973, unless as any expression on the issue of otherwise noted. whether such rule of law or regulation would apply to the Postal Service if it § 211.1 Disposition of former title 39, were not adopted as a regulation, nor U.S.C. shall it restrict the authority of the Except as otherwise continued in ef- Postal Service to amend or revoke the fect as postal regulations, all provi- rule so adopted at a subsequent time. sions of former title 39, U.S.C., which (d) All regulations of the Post Office were continued in effect as regulations Department in effect at the time the of the Postal Service by section 5(f) of U.S. Postal Service commenced oper- the Postal Reorganization Act, are re- ations, continue in effect, except as voked. This revocation does not apply subsequently modified or repealed by to postal regulations which embody or the Postal Service. Except as otherwise are derived from provisions of former continued in effect as postal regula- title 39. tions, all regulations of other agencies of the United States continued in effect § 211.2 Regulations of the Postal Serv- ice. as postal regulations by section 5(a) of the Postal Reorganization Act are re- (a) The regulations of the Postal pealed. Service consist of: (1) The resolutions of the Governors [38 FR 20402, July 31, 1973, as amended at 46 and the Board of Governors of the U.S. FR 34329, July 1, 1981; 69 FR 36022, June 28, Postal Service and the bylaws of the 2004; 69 FR 59545, Oct. 5, 2004; 70 FR 20293, Board of Governors; Apr. 19, 2005] (2) The Mailing Standards of the § 211.3 Executive orders and other ex- United States Postal Service, Domestic ecutive pronouncements; circulars, Mail Manual; the Postal Operations bulletins, and other issuances of the Manual; the Administrative Support Office of Management and Budget. Manual; the Employee and Labor Rela- tions Manual; the Financial Management (a) By virtue of the Postal Reorga- Manual; the International Mail Manual; nization Act, certain executive orders, and those portions of Chapter 2 of the and other executive pronouncements former Postal Service Manual and chap- and certain circulars, bulletins, and ter 7 of the former Postal Manual re- other issuances of the Office of Man- tained in force. agement and Budget or particular pro- (3) Headquarters Circulars, Manage- visions thereof, or requirements there- ment Instructions, Regional Instruc- in, apply to the Postal Service and cer- tions, handbooks, delegations of au- tain others do not apply. thority, and other regulatory issuances (b) It is the policy of the Postal Serv- and directives of the Postal Service or ice to continue to comply with the former Post Office Department. issuances of the kind mentioned in Any of the foregoing may be published paragraph (a) of this section with

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which it has previously complied, un- Postal Service. Any regulation or law less a management decision by an ap- the applicability of which is continued propriate department head is made to by paragraphs (a) through (c) of this terminate compliance, in whole or in section which requires any action by part, following advice from the General any agency other than the Postal Serv- Counsel that the issuance is not bind- ice or Post Office Department shall be ing, in whole or in part, on the Postal deemed to require such action by the Service. This policy is not enforceable Postal Service, unless by agreement by any party outside the Postal Serv- with the Postal Service the other agen- ice. No party outside the Postal Serv- cy involved consents to the continu- ice is authorized to use the mere non- ation of its action. compliance with this policy against the (d) Effect of Collective Bargaining on Postal Service in any way. Certain Regulations. All rules and regulations continued or established by § 211.4 Interim personnel regulations. paragraphs (a) through (c) of this sec- (a) Continuation of Personnel Regula- tion which establish fringe benefits as tions of the Post Office Department. All defined in title 39, U.S.C. 1005(f) of em- regulations of the former Post Office ployees for whom there is a collective Department dealing with officers and bargaining representative continue to employees, in effect at the time the apply until modified by a collective U.S. Postal Service commenced oper- bargaining agreement concluded pursu- ations, continue in effect according to ant to the Postal Reorganization Act. their terms until modified or repealed Those rules and regulations affecting by the Postal Service or pursuant to a other terms and conditions of employ- collective bargaining agreement under ment encompassed by section 8(d) of the Postal Reorganization Act. the National Labor Relations Act, as (b) Continuation of Personnel Provi- amended, shall continue to apply to sions of Former title 39, U.S.C. Except as such employees until such collective they may be inconsistent with other bargaining agreement has been con- regulations adopted by the Postal cluded, and, unless specifically contin- Service or with a collective bargaining ued by such agreement, shall apply agreement under the Postal Reorga- thereafter until modified or repealed nization Act, all provisions of former by the Postal Service pursuant to its title 39, U.S.C., dealing with and appli- authority under title 39, U.S.C. 1001(e) cable to postal officers and employees and other pertinent provisions of the immediately prior to the commence- Postal Reorganization Act. In the ment of operations of the Postal Serv- event a condition occurs which shall ice continue in effect as regulations of excuse the Postal Service from con- the Postal Service. tinuing negotiations prior to the par- (c) Continuation of Other Laws and ties thereto concluding an agreement Regulations as Postal Regulations. Ex- in accordance with the Postal Reorga- cept as they may be inconsistent with nization Act, the Postal Service re- the provisions of the Postal Reorga- serves the right in accordance with the nization Act, with other regulations reorganization measures mandated by adopted by the Postal Service, or with the Congress and consistent with the a collective bargaining agreement provisions of the Act, and any collec- under the Postal Reorganization Act, tive bargaining agreements in exist- all regulations of Federal agencies ence at that time, insofar as they do other than the Postal Service or Post not unduly impede such reorganization Office Department and all laws other measures, to continue, discontinue, or than provisions of revised title 39, revise all compensation, benefits, and U.S.C., or provisions of other laws terms and conditions of employment of made applicable to the Postal Service such employees of the Postal Service. by revised title 39, U.S.C., dealing with officers and employees applicable to PART 221—GENERAL postal officers and employees imme- ORGANIZATION diately prior to the commencement of operations of the Postal Service, con- Sec. tinue in effect as regulations of the 221.1 The United States Postal Service.

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221.2 Board of Governors. (1) Provide an independent and objec- 221.3 Office of Inspector General. tive unit to conduct and supervise au- 221.4 Corporate officers. dits and investigations relating to pro- 221.5 Headquarters organization. grams and operations of the Postal 221.6 Field organization. Service. 221.7 Postal Service emblem. (2) Provide leadership and coordina- AUTHORITY: 39 U.S.C. 201, 202, 203, 204, 207, tion and recommend policies for activi- 401(2), 402, 403, 404, 409, 1001; Inspector Gen- ties designed to: eral Act of 1978 (Pub. L. 95–452), 5 U.S.C. App. (i) Promote economy, efficiency, and 3. effectiveness in the administration of SOURCE: 69 FR 53000, Aug. 31, 2004, unless postal programs and operations. otherwise noted. (ii) Prevent and detect fraud and abuse in postal programs and oper- § 221.1 The United States Postal Serv- ice. ations. (3) Provide a means of keeping the The United States Postal Service was governors and Congress fully and cur- established as an independent estab- rently informed about: lishment within the executive branch (i) Problems and deficiencies relating of the government of the United States to the administration of postal pro- under the Postal Reorganization Act of grams and operations. August 12, 1970 (Pub. L. 91–375, 84 Stat. (ii) The necessity for corrective ac- 719). tion. (iii) The progress of corrective ac- § 221.2 Board of Governors. tion. (a) Composition. The Board of Gov- (4) Provide oversight of all activities ernors consists of 11 members. Nine of the Postal Inspection Service. governors are appointed by the Presi- (c) Inspector General—(1) Appointment. dent of the United States, by and with The inspector general is appointed for the advice and consent of the Senate. a 7-year term by the nine governors. Not more than five governors may be (2) Responsibilities. The inspector gen- adherents of the same political party. eral is responsible for the operations of The governors are chosen to represent the OIG: ensuring independent and ob- the public interest generally, and they jective audits and investigations of may not be representatives of specific postal operations and programs; over- interests using the Postal Service. The seeing the Postal Inspection Service; governors may be removed only for and apprising the governors and Con- cause. The postmaster general and the gress of significant observations. The deputy postmaster general are also inspector general has no direct respon- voting members of the Board of Gov- sibility for designing, installing, and/or ernors. operating postal operations or pro- (b) Responsibilities. The Board of Gov- grams. ernors directs the exercise of the pow- (3) Extent of powers. In addition to the ers of the Postal Service, reviews the authority otherwise provided by the In- practices and policies of the Postal spector General Act of 1978, as amend- Service, and directs and controls its ex- ed, the inspector general is authorized penditures. to: (i) Have unrestricted access to all § 221.3 Office of Inspector General. Postal Service operations, programs, (a) Establishment. The Office of In- records, and documents, whether in spector General (OIG) was established custody of the Postal Service or avail- as an independent law enforcement and able by law, contract, or regulation. oversight agency for the United States (ii) Have direct and prompt access to Postal Service under the Inspector the governors when necessary for any General Act of 1978 (5 U.S.C. App. 3), as purpose pertaining to the performance amended in 1988 (Pub. L. 100–504, 102 of the functions and responsibilities of Stat. 2515) and 1996 (Pub. L. 104–208, 110 the OIG. Stat. 3009). (iii) Administer oaths when nec- (b) Responsibilities. The OIG was es- essary in performance of the functions tablished to: assigned to the OIG.

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(iv) Require by subpoena the produc- nate may also determine appeals with- tion of all information, documents, re- in the authority delegated. ports, answers, records, accounts, pa- (3) Extent of powers. The postmaster pers, and other data and documentary general, as directed by the Board of evidence necessary in the performance Governors, exercises the powers of the of the functions of the OIG. Postal Service to the extent that such (v) Select, appoint, and employ such exercise does not conflict with power officers and employees as may be nec- reserved to the Board by law. The post- essary for carrying out the functions, master general is authorized to direct powers, and duties of the OIG. any officer, employee, or agent of the (vi) Obtain the temporary or inter- Postal Service to exercise such of the mittent services of experts or consult- postmaster general’s powers as the ants in accordance with applicable laws postmaster general deems appropriate. and regulations. (b) Deputy Postmaster General. The deputy postmaster general is appointed § 221.4 Corporate officers. and can be removed by the postmaster The Board of Governors determines general and the governors in office. the number of corporate officers and The deputy postmaster general reports appoints the postmaster general. The directly to the postmaster general. governors and the postmaster general (c) Chief Operating Officer and Execu- appoint the deputy postmaster general. tive Vice President. The chief operating The postmaster general appoints the officer and executive vice president is remaining corporate officers. The cor- appointed by the postmaster general porate officers of the Postal Service and directs all processing, distribution, are the following: and customer service functions. (a) The postmaster general and chief (d) Officers in charge of Headquarters executive officer. organizational units. The officers in (b) The deputy postmaster general. charge of Headquarters organizational (c) The chief operating officer and ex- units are appointed by the postmaster ecutive vice president. general. They report directly to the (d) The chief financial officer and ex- postmaster general, the deputy post- ecutive vice president. master general, an executive vice president, a senior vice president, or (e) The senior vice presidents. another officer, as the postmaster gen- (f) The general counsel and senior eral may direct. vice president. (e) Responsibilities. The corporate offi- (g) The vice presidents. cers head the organizational units into (h) The chief inspector. which Headquarters and the field are (i) The consumer advocate and vice divided. They are responsible for the president. following: (j) The judicial officer. (1) Program planning, direction, and (k) Such other officers as the Board review. may designate from time to time. (2) Establishment of policies, procedures, and standards. § 221.5 Headquarters organization. (3) Operational determinations not (a) Postmaster General—(1) Appoint- delegated to district officials. ment. The postmaster general (PMG), the chief executive officer of the Postal § 221.6 Field organization. Service, is appointed by and can be re- (a) General. There are 8 areas, each moved by a majority of the governors with a vice president. in office. (b) Area locations. (2) Responsibilities. The postmaster general is responsible for the overall Area name Location operation of the Postal Service. The Eastern ...... Pittsburgh PA. postmaster general determines appeals Great Lakes ...... Chicago IL. from the actions of staff and corporate New York Metro ...... New York NY. officers, except in cases where he or she Northeast ...... Windsor CT. Pacific ...... San Francisco CA. has delegated authority to make a de- Southeast ...... Memphis TN. cision to a subordinate; such subordi- Southwest ...... Dallas TX.

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Area name Location a trademark and service mark by the U.S. Patent Office. Except for the em- Western ...... Denver CO. blem on official stationery, the em- (c) Area functions. Functional units blem must bear one of the following and reporting units are as follows: notations: ‘‘Reg. U.S. Pat. Off.’’, ‘‘Reg- (1) Functional units. Each area is di- istered in U.S. Patent Office’’, or the vided into functional units responsible letter R enclosed within a circle. for finance, human resources, marketing, and operations support. PART 222—DELEGATIONS OF (2) Reporting units. Areas are respon- AUTHORITY sible for: (i) Customer service districts (CSDs). Sec. (ii) Post offices (POs). 222.1 Authority to administer postal affairs. (iii) Vehicle maintenance facilities 222.2 Authority to administer oaths or func- (VMFs). tion as notaries public. (iv) Processing and distribution cen- 222.3 Other delegation. ters (P&DCs). AUTHORITY: 39 U.S.C. 201, 202, 203, 204, 207, (v) Processing and distribution facili- 401(2), 402, 403, 404, 409, 1001, 1011; Inspector ties (P&DFs). General Act of 1978 (Pub. L. 95–452), 5 U.S.C. (vi) Air mail centers (AMCs). App. 3. (vii) Air mail facilities (AMFs). SOURCE: 69 FR 53000, Aug. 31, 2004, unless (viii) Bulk mail centers (BMCs). otherwise noted. (ix) Bulk mail facilities (BMFs). (x) Remote encoding centers (RECs). § 222.1 Authority to administer postal (d) Customer Service District Offices. affairs. Functional units and reporting rela- (a) The Postmaster General. The post- tionships are as follows: master general has been authorized by (1) Functional units. The 80 district of- the Board of Governors to exercise the fices coordinate the day-to-day man- powers of the Postal Service to the full agement of post offices and customer extent that such exercise is lawful. The service activities other than processing postmaster general is empowered to and distribution within a geographical authorize any employee or agent of the area. EAS–26 and above postmasters re- Service to exercise any function vested port to their district manager. Each in the Postal Service, in the post- district office is organized into func- master general, or in any other Postal tional units responsible for post office Service employee. operations, operations programs sup- (b) Corporate officers. Corporate offi- port, customer service support, ficers are authorized to exercise the pow- nance, human resources, information ers and functions of the Postal Service technology, administrative support, under the Postal Reorganization Act and marketing. with respect to matters within their (2) Reporting relationships. Inde- areas of responsibility, except as lim- pendent delivery distribution centers ited by law or by the specific terms of and post offices level EAS–24 and below their assignment. report to the functional unit respon- (c) General counsel. The general coun- sible for post office operations. sel is authorized to settle federal tort (e) Support—(1) General. Headquarters claims under section 2672 of title 28, field units and service centers provide United States Code, up to $100,000. support for area offices. (2) Headquarters field units. As as- § 222.2 Authority to administer oaths signed, Headquarters field units are re- or function as notaries public. sponsible for legal services, corporate (a) Authority to approve personnel relations, human resources, facility actions and administer oaths of office services, finance, information tech- for employment. The postmaster gen- nology, and supply management. eral, corporate officers, and their delegatees are authorized to effect ap- § 221.7 Postal Service emblem. pointments, administer oaths of office The Postal Service emblem, which is for employment, and take other per- identical with the seal, is registered as sonnel actions.

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(b) Authority to administer oaths tain such specific limiting conditions other than for employment. The fol- as may be appropriate. lowing are authorized to administer (e) Further delegation. Authority may oaths concerning matters other than be further delegated unless prohibited employment: by law, a regulation that expressly pro- (1) Postal inspectors, with regard to hibits further delegation, or terms of any matter coming before them in the the delegation. performance of their official duties; (2) Any member of a board who is as- PART 223—RELATIONSHIPS AND signed to conduct hearings or inves- COMMUNICATION CHANNELS tigations in which sworn testimony, affidavits, or depositions are required, Sec. and each officer or employee assigned 223.1 Headquarters and areas. to conduct such hearings or investiga- 223.2 Channels of communication, head- tions; quarters with area offices. (3) Postmasters, where required in the performance of their official duties. AUTHORITY: 39 U.S.C. 201, 202, 203, 204, 207, 401(2), 402, 403, 404. (c) Authority to function as notaries public. (1) Postmasters in Alaska have SOURCE: 69 FR 53000, Aug. 31, 2004, unless the authority to administer oaths and otherwise noted. affirmations, take acknowledgments and make and execute certificates § 223.1 Headquarters and areas. thereof, and perform all other func- Headquarters provides policy guid- tions of a notary public within Alaska ance, procedures, and interpretation to when a certification is necessary to area officials. meet any Act of Congress or the Legis- lature of Alaska. No fees may be § 223.2 Channels of communication, charged for notarial services. headquarters with area offices. (2) An officer or employee who is a (a) General. Headquarters organiza- notary public shall not charge or re- tional units formulate the directives to ceive compensation for notarial serv- provide guidance to area officials. ices for another officer or employee re- (b) Policies. Policies are issued over garding Government business; nor for the signatures of the vice presidents of notarial services for any person during the functional organizations (unless the hours of the notary’s services to the postmaster general or deputy post- the Government, including the lunch master general issues these directives period. personally). Whether published on paper or online, such policies must be § 222.3 Other delegation. coordinated with other appropriate or- (a) Documentation. All delegations of ganizations before issuance, and re- authority must be officially docu- viewed, published, and managed by mented. Public Affairs and Communications. If (b) Position title. Delegations of au- within the authority of the issuer, thority must ordinarily be made by po- these policies have the same effect as sition title rather than by name of the though sent by the postmaster general individual involved. An officer or exec- or deputy postmaster general. utive acting for a principal has the (c) Procedures. Regulations, instruc- principal’s full authority. tions, and implementation guidelines (c) Level. When authority is delegated are issued over the signatures of vice to an officer, the officers above that of- presidents of functional organizations ficer shall have the same authority. or their accountable functional unit Delegated authority does not extend to managers and used to implement pro- aides unless an aide is acting for the grams and business activities. Whether supervisor (see paragraph (b) of this published on paper or online, such pro- section) or is specifically authorized by cedures must be coordinated with other the superior to exercise such authority. appropriate organizations before (d) Agreement with law. A delegation issuance and reviewed, published, and must agree with the law and regula- managed by Public Affairs and Com- tions under which it is made and con- munications.

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Inspection Service Requirements 230.22 May another employee be substituted for the employee requested to appear?. 230.23 May an Office of Inspector General PART 230—OFFICE OF INSPECTOR employee testify as an expert or opinion GENERAL witness? 230.24 How is a demand for employee docu- Subpart A—General Policy and Authority ments or testimony made to the Office of Inspector General? Sec. 230.25 Who pays the costs incurred when the 230.1 Establishment and authority. Office of Inspector General responds to a 230.2 Access to information and other re- demand for documents or testimony? sponsibilities. 230.26 Do these rules affect the service of 230.3 Cooperation with the Office of Inspec- process requirements of the Federal tor General. Rules of Civil Procedure (28 U.S.C. Ap- 230.4 Arrest and investigative powers of pendix)? criminal investigators. 230.27 Do these rules create any right or 230.5 Release of information. benefit enforceable by a party against the Postal Service? Subpart B—Rules Governing Compliance AUTHORITY: 5 U.S.C. App.3; 39 U.S.C. 401(2) with Subpoenas, Summonses, and and 1001. Court Orders by Postal Employees Within the Office of Inspector General SOURCE: 67 FR 16025, Apr. 4, 2002, unless Where Neither the Postal Service, the otherwise noted. United States, Nor Any Other Federal Agency Is a Party Subpart A—General Policy and Authority 230.10 What do these rules govern? 230.11 What special definitions apply to § 230.1 Establishment and authority. these rules? 230.12 Can Office of Inspector General em- (a) There is established, pursuant to ployees testify or produce documents the Inspector General Act of 1978, as that would assist me in my civil pro- amended (5 U.S.C. App.3), and 39 U.S.C. ceeding? 410, an independent Office of Inspector 230.13 Why are restrictions on Office of In- General. spector General employees in civil pro- (b) The Inspector General reports di- ceedings necessary? 230.14 Who owns the written or recorded rectly to the nine presidentially ap- notes, memoranda, reports, and tran- pointed Governors and shall not be su- scriptions made pursuant to an official pervised by, nor report to, the Post- investigation, audit, or review conducted master General and/or any designee ap- by an employee of the Office of Inspector pointed by the Postmaster General. General? (c) The Office of Inspector General 230.15 What must an Office of Inspector includes an Inspector General, an As- General employee do if served with a de- sistant Inspector General for Audit, mand requiring the production of documents or an appearance in court? and an Assistant Inspector General for 230.16 Is there a prohibition on presenting Investigations. The Office of Inspector Office of Inspector General reports or General maintains its own legal coun- records during an employee’s testimony? sel independent of the Postal Service 230.17 If an attempt is made to compel pro- Law Department for matters that are duction of reports and records during the within the jurisdiction of the Office. employee’s testimony, what is an Office (d) The Office of Inspector General is of Inspector General employee directed responsible for detecting and pre- to do? 230.18 If authorization to testify or produce venting fraud, waste, and abuse in the documents is not obtained by the em- programs and operations of the Postal ployee, what is the employee directed to Service, including, investigating all al- do? legations of violations of postal laws or 230.19 What criteria will the authorizing of- misconduct by postal employees, in- ficial use to determine whether to au- cluding mail theft, and for reviewing thorize testimony or production of docu- existing and proposed legislation and ments? regulations relating to the programs 230.20 What records will not be released? 230.21 May the General Counsel to the In- and operations of the Postal Service. spector General and/or a U.S. Depart- (e) The Inspector General has over- ment of Justice attorney represent the sight responsibilities for all activities employee in any appearance? 41

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of the Postal Inspection Service. The § 230.3 Cooperation with the Office of Chief Postal Inspector must promptly Inspector General. report to the Inspector General signifi- (a) All Postal Service employees cant activities and other information shall cooperate with all audits, re- related to the Inspection Service as reviews, and investigations conducted by quired by law. (f) The Inspector General has sole re- the Office of Inspector General. Delib- sponsibility for directing the Office of erately submitting information known Inspector General, including the au- to be false or misleading to the Office thority to select, appoint, and employ of Inspector General or failing to co- such officers and employees that the operate with all audits, reviews, and Inspector General deems necessary and investigations conducted by the Office appropriate to fulfill the mission of the of Inspector General may be grounds Office. In addition, the Inspector Gen- for disciplinary or other legal action. eral may delegate to such officers and (b) Any employee who has authority employees of the Inspector General to take, direct another to take, rec- such powers, duties, and responsibil- ommend or approve any personnel ac- ities, as the Inspector General deems tion shall not retaliate against any em- necessary and appropriate for the prop- ployee as a reprisal for cooperating and er functioning of the Office. assisting with any Office of Inspector (g) All employees in the Office of In- General audit, review, or investigation spector General shall take and sub- (including reporting facts or informa- scribe to the oath of office required of tion to the Office of Inspector General all Postal Service employees under 39 that leads to any audit, review, or in- U.S.C. 1011, and the Inspector General, vestigation). or designee, is authorized to administer such oath and affirmation. § 230.4 Arrest and investigative powers (h) The Inspector General has the au- of criminal investigators. thority to enter into contracts or other (a) Under the authority of 18 U.S.C. arrangements with public agencies and 3061, criminal investigators employed with private entities, and to make such by the Office of Inspector General are payments as may be necessary to carry authorized to perform the following out the duties and responsibilities of functions in connection with their offi- the Office of Inspector General. cial duties: (i) The Inspector General may hire and retain the services of expert con- (1) Serve warrants and subpoenas sultants and other personnel as nec- issued under the authority of the essary to fulfill the duties and respon- United States; sibilities of the Office. (2) Make arrests without warrant for (j) Except as required by law, the offenses against the United States Governors may not transfer to the In- committed in their presence; spector General responsibility for per- (3) Make arrests without warrant for forming any of the program activities felonies cognizable under the laws of of the Postal Service. the United States if they have reasonable grounds to believe that the person [67 FR 16025, Apr. 4, 2002, as amended at 72 to be arrested has committed or is FR 39011, July 17, 2007] committing such a felony; § 230.2 Access to information and (4) Carry firearms; and other responsibilities. (5) Make seizures of property as pro- (a) The Inspector General has author- vided by law. ity to have access to all postal records, (b) Administrative subpoenas may be reports, audits, reviews, documents, served by delivering a copy to a person papers, information, and other mate- or by mailing a copy to the person’s rial relating to any matter related to last known address. For the purposes of the responsibilities of the Inspector this provision, delivery of a copy in- General; cludes handing it to the party or leav- (b) The Inspector General shall be the ing it at the party’s office or residence Investigating Official for purposes of with a person of suitable age and dis- the Program Fraud Civil Remedies Act. cretion employed or residing therein.

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Service by mail is complete upon mail- Subpart B—Rules Governing Com- ing. pliance With Subpoenas, [67 FR 16025, Apr. 4, 2002, as amended at 71 Summonses, and Court Or- FR 12285, Mar. 10, 2006] ders by Postal Employees Within the Office of Inspector § 230.5 Release of information. General Where Neither the (a) The Office of Inspector General is Postal Service, the United responsible for maintaining and storing States, Nor Any Other Federal its own records and for assuring com- Agency Is a Party pliance with applicable records management, retention, and disclosure re- SOURCE: 68 FR 57372, Oct. 3, 2003, unless quirements. otherwise noted. (b) The Inspector General or a designee serves as the official custodian of § 230.10 What do these rules govern? the records and documents of the Office (a) Subpart B governs those situa- of Inspector General and is responsible tions where an employee of the Office for administering the rules and regula- of Inspector General has been sum- tions relating to public availability of moned, subpoenaed, or given a court Postal Service Office of Inspector Gen- order in connection with any federal, eral records insofar as the information state, local court, administrative, or is subject to the provisions of the Free- legislative proceeding. dom of Information Act, contained in (b) The rules in subpart B do not Section 552 of Title 5 of the U.S. Code apply to: and 39 U.S.C. 410 (c), and/or the Privacy (1) Proceedings where the United Act, Section 552a of Title 5 of the U.S. States, the Postal Service, or any Code. other federal agency is named as a (c) Requests for records and informa- party; tion under the Freedom of Information (2) Congressional requests or sub- Act or Privacy Act should be subpoenas for testimony or documents; mitted in writing to the Office of In- (3) Employees serving as expert wit- spector General, Freedom of Informa- nesses in connection with professional tion/Privacy Act Officer, located at and consultative services under Title 5, 1735 N. Lynn Street, Arlington, Vir- Code of Federal Regulations, Part 7001, ginia, 22209–2020. provided they state for the record that (d) The Office of Inspector General their testimony reflects their personal shall comply with and adhere to the opinions and should not be viewed as the official position of the Postal Serv- procedures governing the release of in- ice; formation maintained by the U.S. (4) Employees making appearances in Postal Service as set forth in Part 265 their private capacities in proceedings and related provisions of these regula- that do not relate to their Postal Serv- tions to the extent such procedures do ice employment, such as traffic acci- not conflict with any provision in this dents or domestic relations matters; part. and do not involve professional or con- (e) Appeals from the denial of any re- sultative services; quest for information should be di- (5) Situations where the Inspector rected to the General Counsel for the General or an official designated by the Office of Inspector General, who is re- Inspector General determines that the sponsible for deciding any timely ap- best interests of the public or the Of- peals authorized under this section. fice of Inspector General would be (f) Postal Service records in the cus- served by an exemption from the regu- tody of the Office of Inspector General lations. that contain proprietary information (c) These rules should be read to- will not be released by the Inspector gether with the Freedom of Informa- General without consultation with the tion Act (FOIA), which provides addi- appropriate Postal Service official re- tional information about access to sponsible for the record. records.

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§ 230.11 What special definitions apply Postal Service as outlined in part 221 of to these rules? this chapter. The following definitions apply to (i) Office of Inspector General Man- ual is the document containing the Subpart B: standard operating procedures for (a) Authorizing official means the In- criminal investigators, evaluators, and spector General or an official des- other employees of the Office of Inspec- ignated by the Inspector General to au- tor General. thorize release of documents or permis- (j) Reports include all written re- sion to testify. ports, letters, recordings, or other (b) Case or matter means any civil memoralizations made in conjunction proceeding before a court of law, ad- with the duties of an Office of Inspec- ministrative board, hearing officer, or tor General employee. other body conducting a judicial or ad- (k) Testify or testimony includes ministrative proceeding in which the both in-person oral statements before United States, the Postal Service, or any body conducting a judicial or ad- another federal agency is not a named ministrative proceeding and state- party. ments made in depositions, answers to (c) Demand includes any request, interrogatories, declarations, affida- order, or subpoena for testimony or the vits, or other similar documents. production of documents. (d) Document means all records, pa- § 230.12 Can Office of Inspector Gen- pers, or official files, including, but not eral employees testify or produce limited to, official letters, telegrams, documents that would assist me in memoranda, reports, studies, calendar my civil proceeding? and diary entries, graphs, notes, No current or former employee with- charts, tabulations, data analyses, sta- in the Office of Inspector General may tistical or information accumulations, testify or produce documents con- records of meetings and conversations, cerning information acquired in the film impressions, magnetic tapes, com- course of employment or as a result of puter discs, and sound or mechanical his or her relationship with the Postal reproductions. Service in any proceeding to which this (e) Employee or Office of Inspector subpart applies (see § 230.10), unless au- General employee, for the purpose of thorized to do so by an authorizing of- this subpart only, means a Postal Serv- ficial. ice employee currently or formerly assigned to the Postal Service Office of § 230.13 Why are restrictions on Office of Inspector General employees in Inspector General, student interns, civil proceedings necessary? contractors, and employees of contractors who have access to Office of In- The restrictions are intended to re- spector General information and duce the risk of inappropriate disclo- records. sures that might affect the operations (f) General Counsel to the Inspector of the Office of Inspector General; pre- General means the General Counsel of vent the expenditure of Office of In- the Office of Inspector General, or a spector General or Postal Service re- person authorized by the Inspector sources for private purposes; and en- General to give legal advice to Office of sure that employee time is serving the Inspector General employees. General best interests of the public. Counsel to the Inspector General does § 230.14 Who owns the written or re- not mean the General Counsel of the corded notes, memoranda, reports, Postal Service. and transcriptions made pursuant (g) Nonpublic includes any material to an official investigation, audit, or or information not subject to manda- review conducted by an employee tory public disclosure under § 265.6(b) or of the Office of Inspector General? which must be kept confidential under Notes, memoranda, reports, and tran- the Inspector General Act, 5 U.S.C. scriptions, whether written or recorded App. 3. and made pursuant to an official inves- (h) Office of Inspector General means tigation, audit, or review conducted by the organizational unit within the an employee of the Office of Inspector

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General, are the property of the Office mation. If the authorization is denied of Inspector General. or not received by the return date, the employee, together with counsel, where § 230.15 What must an Office of Inspec- appropriate, shall appear at the stated tor General employee do if served time and place, produce a copy of this with a demand requiring the pro- section, and respectfully decline to tes- duction of documents or an appearance in court? tify or produce any document on the basis of the regulations in this section. If an Office of Inspector General employee is served with a demand requir- § 230.19 What criteria will the author- ing the production of documents or an izing official use to determine appearance in court, the employee whether to authorize testimony or must promptly inform the authorizing production of documents? official of the nature of the documents (a) The authorizing official will de- or testimony sought and all relevant termine whether testimony or the pro- facts and circumstances. Office of In- duction of documents will be author- spector General employees are directed ized according to the following cri- to appear as the subpoena or summons teria: may require, but may not testify or (1) Statutory restrictions, as well as produce documents unless authorized. any legal objection, exemption, or privilege that may apply; § 230.16 Is there a prohibition on pre- (2) Relevant legal standards for dis- senting Office of Inspector General closure of nonpublic information and reports or records during an employee’s testimony? documents; (3) Office of Inspector General rules Yes, Office of Inspector General re- and regulations; ports or records will not be presented (4) The public interest; during an employee’s testimony, unless (5) Minimizing or preventing expendi- authorized by an authorizing official. tures of Office of Inspector General and § 230.17 If an attempt is made to com- Postal Service time and resources sole- pel production of reports and ly for private purposes. records during the employee’s testi- (6) Minimizing the appearance of im- mony, what is an Office of Inspector properly favoring one litigant over an- General employee directed to do? other; If an attempt is made to compel pro- (7) Minimizing the possibility that duction of reports and records during the public will misconstrue variances the employee’s testimony, the em- between personal opinions of Office of ployee is directed to decline to produce Inspector General employees and agen- the item or information and to state cy policy; and that the material cannot be disclosed (8) Preserving the integrity of the ad- or produced without the approval of ministrative process. the authorizing official. All such re- (b) Permission to testify or to release quests, and any other requests for doc- documents in all cases will be limited uments in judicial or administrative to matters outlined in the affidavit or proceedings in which the United States declaration described in section 230.24 is not a party, shall be deemed to be a of this part or to such matters as request for records under the Freedom deemed appropriate by the authorizing of Information Act and shall be han- official. If the authorizing official al- dled pursuant to 39 CFR 230.5. lows the release of documents or testimony to be given by an employee, ar- § 230.18 If authorization to testify or rangements shall be made for the tak- produce documents is not obtained ing of testimony or receipt of docu- by the employee, what is the em- ments by the method least disruptive ployee directed to do? to the employee’s official duties. Testi- Absent written authorization from mony may, for example, be provided by the authorizing official, the employee affidavits, answers to interrogatories, must respectfully decline to produce written depositions, or depositions the requested documents, testify, or transcribed, recorded, or preserved by otherwise disclose the requested infor- any other means allowable by law.

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(c) Upon issuance of an unfavorable in camera, ex parte conference to de- final determination by the authorizing termine the necessity for the release of official, the party or the party’s coun- the information. sel seeking testimony or documents may consult or negotiate with the au- § 230.21 May the General Counsel to thorizing official to refine and limit the Inspector General and/or a U.S. the demand. Department of Justice attorney rep- (d) The Office of Inspector General resent the employee in any appearance? will offer all possible assistance to the courts, but the question of disclosing At the option of the Attorney Gen- information for which an exemption eral, or an authorizing official, an Of- may be claimed is a matter of discre- fice of Inspector General legal counsel tion that rests with the authorizing of- may represent and assist the employee. ficial. If in the opinion of the author- The authorizing official designated by izing official the documents should not the Inspector General may also request be released or testimony should not be assistance from the U.S. Department of furnished, that determination will be Justice in representing and assisting final. the employee in any appearance.

§ 230.20 What records will not be re- § 230.22 May another employee be subleased? stituted for the employee requested to appear? Generally, any record demanded by a subpoena duces tecum or appropriate The Inspector General or designee court order can be released by a prop- may, where appropriate, designate an- erly authorized Office of Inspector Gen- other Office of Inspector General em- eral employee, except for the following: ployee to respond to a request for an (a) Records required to remain con- appearance. fidential by the Freedom of Informa- tion Act, the Privacy Act, and parts 230 § 230.23 May an Office of Inspector and 262 of this chapter, General employee testify as an ex- (b) Records containing information pert or opinion witness? relating to an employee’s security or No, an Office of Inspector General loyalty; employee may not testify as an expert (c) Original records; or opinion witness with regard to any (d) Office of Inspector General crimi- matter arising out of the employee’s nal investigative reports, unless there duties or functions at the Office of In- is specific authorization by an author- spector General for any party other izing official, after consulting with than the United States, except that in General Counsel to the Inspector Gen- extraordinary circumstances, and eral; and where the anticipated testimony will (e) The Office of Inspector General not be adverse to the interest of the Manual and other operating instruc- United States, the authorizing official tions issued to Office of Inspector Gen- may approve such testimony in private eral employees, unless there is specific litigation. A litigant must first obtain authorization by an authorizing offi- the permission of an authorizing official, after consultation with the Gen- cial designated by the Inspector Gen- eral Counsel to the Inspector General. eral before designating an Office of In- If the requested information relates to spector General employee as an expert confidential investigative techniques, or opinion witness. confidential sources of information, or information that must be kept con- § 230.24 How is a demand for employee fidential under the Inspector General documents or testimony made to Act, 5 U.S.C. app. 3, because release of the Office of Inspector General? the information would adversely affect (a) All demands for the production of the duties and obligations or law en- nonpublic documents or testimony of forcement mission of the Office of In- Office of Inspector General employees spector General, the subpoenaed offi- concerning matters relating to their cial, through the Inspector General, or official duties and subject to the condi- an authorizing official, may request an tions set forth in § 230.10(b) shall be

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made in writing and conform to the re- burse the Office of Inspector General quirements outlined in paragraph (b) of for the cost of responding to a demand, this section. may include the costs of time expended (b) Before or simultaneously with by Office of Inspector General employ- service of a demand, the requesting ees, including attorneys, to process and party shall serve on the General Coun- respond to the demand; attorney time sel to the Inspector General at the Of- for reviewing the demand and for legal fice of Inspector General, 1735 North work in connection with the demand; Lynn Street, Arlington, VA 22209–2020, expenses generated by equipment used a summons or subpoena issued in ac- to search for, produce, and copy the re- cordance with the appropriate rules of quested information; and travel costs civil procedure along with an affidavit of the employee and the agency attor- or sworn declaration containing the ney or other representative, including following information: lodging and per diem. Such fees shall (1) The title of the case and the be assessed at the rates and in the forum where it will be heard; manner specified in 39 CFR 265.9. (2) The party’s interest in the case; (2) At the discretion of the Office of (3) The reasons for the demand; Inspector General where appropriate, (4) A showing that the requested in- fees and costs may be estimated and formation is available, by law, to a collected before testimony is given. party outside the Postal Service; (b) The provisions of Subpart B do (5) If testimony is sought, a detailed not affect rights and procedures gov- summary of the anticipated testimony; erning public access to official docu- (6) If testimony is sought, a showing ments pursuant to the Freedom of In- that Office of Inspector General records formation Act, 5 U.S.C. 552a. could not be provided and used in place of the requested testimony; § 230.26 Do these rules affect the serv- (7) The intended use of the docu- ice of process requirements of the ments or testimony; and Federal Rules of Civil Procedure (8) An affirmative statement that the (28 U.S.C. Appendix)? documents or testimony is necessary No, the rules in subpart B in no way for defending or prosecuting the case at modify the requirements of the Federal issue. Rules of Civil Procedure regarding [68 FR 57372, Oct. 3, 2003, as amended at 71 FR service of process. 11161, Mar. 6, 2006] § 230.27 Do these rules create any § 230.25 Who pays the costs incurred right or benefit enforceable by a when the Office of Inspector Gen- party against the Postal Service? eral responds to a demand for docu- No, subpart B is intended to provide ments or testimony? instructions to Office of Inspector Gen- (a) Unless determined by 28 U.S.C. eral employees and members of the 1821 or other applicable statute, the public. It does not create any right or costs of providing testimony, including benefit, substantive or procedural, en- the cost of transcripts, shall be borne forceable by any party against the Of- by the requesting party. Furthermore, fice of Inspector General or the Postal unless limited by statute, such costs Service. shall also include reimbursement to the Office of Inspector General for the usual and ordinary expenses attendant PART 231—PROTECTION OF POST upon the employee’s absence from his OFFICES or her official duties in connection with the case or matter, including the Sec. employee’s salary and applicable over- 231.1 Responsibility. head charges, and any necessary travel 231.2 Security Control Officer. expenses as follows: (1) The Office of Inspector General is § 231.1 Responsibility. authorized to charge reasonable fees to (a) The protection of mail, postal parties demanding documents or infor- funds, and property is a responsibility mation. Such fees, calculated to reim- of every postal employee.

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(b) The Chief Postal Inspector is des- removed from the property are subject ignated as the Security Officer for the to inspection. However, items brought U.S. Postal Service. That official is re- directly to a postal facility’s customer sponsible for the issuance of instruc- mailing acceptance area and deposited tions and regulations pertaining to se- in the mail are not subject to inspec- curity requirements within the Postal tion, except as provided by section 274 Service. of the Administrative Support Manual. (39 U.S.C. 401) A person arrested for violation of this section may be searched incident to [36 FR 4762, Mar. 12, 1971] that arrest. § 231.2 Security Control Officer. (2) Vehicles and their contents brought into, while on, or being re- The postmaster or a supervisor des- moved from restricted nonpublic areas ignated by the postmaster shall act as are subject to inspection. A promi- Security Control Officer for each post nently displayed sign shall advise in office. The Security Control Officer advance that vehicles and their con- shall be responsible for the general security of the post office, its stations tents are subject to inspection when and branches, in accordance with rules entering the restricted nonpublic area, and regulations issued by the Chief while in the confines of the area, or Postal Inspector. when leaving the area. Persons entering these areas who object and refuse (39 U.S.C. 401) to consent to the inspection of the ve- [36 FR 4762, Mar. 12, 1971] hicle, its contents, or both, may be denied entry; after entering the area PART 232—CONDUCT ON POSTAL without objection, consent shall be im- PROPERTY plied. A full search of a person and any vehicle driven or occupied by the person may accompany an arrest. AUTHORITY: 18 U.S.C. 13, 3061, 3571; 21 U.S.C. (3) Except as otherwise ordered, prop- 802, 844; 39 U.S.C. 401, 403(b)(3), 404(a)(7), erties must be closed to the public 1201(2). after normal business hours. Properties § 232.1 Conduct on postal property. also may be closed to the public in emergency situations and at such other (a) Applicability. This section applies times as may be necessary for the or- to all real property under the charge derly conduct of business. Admission to and control of the Postal Service, to all properties during periods when such tenant agencies, and to all persons en- properties are closed to the public may tering in or on such property. This section shall be posted and kept posted at be limited to authorized individuals a conspicuous place on all such prop- who may be required to sign the reg- erty. This section shall not apply to— ister and display identification docu- (i) Any portions of real property, ments when requested by security force owned or leased by the Postal Service, personnel or other authorized individ- that are leased or subleased by the uals. Postal Service to private tenants for (c) Preservation of property. Improp- their exclusive use; erly disposing of rubbish, spitting, cre- (ii) With respect to sections ating any hazard to persons or things, 232.1(h)(1) and 232.1(o), sidewalks along throwing articles of any kind from a the street frontage of postal property building, climbing upon the roof or any falling within the property lines of the part of a building, or willfully destroy- Postal Service that are not physically ing, damaging, or removing any prop- distinguishable from adjacent munic- erty or any part thereof, is prohibited. ipal or other public sidewalks, and any (d) Conformity with signs and direc- paved areas adjacent to such sidewalks tions. All persons in and on property that are not physically distinguishable shall comply with official signs of a from such sidewalks. prohibitory or directory nature, and (b) Inspection, recording presence. (1) with the directions of security force Purses, briefcases, and other con- personnel or other authorized individ- tainers brought into, while on, or being uals.

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(e) Disturbances. Disorderly conduct, ited. These prohibitions do not apply or conduct which creates loud and un- to: usual noise, or which impedes ingress (i) Commercial or nonprofit activi- to or egress from post offices, or other- ties performed under contract with the wise obstructs the usual use of en- Postal Service or pursuant to the pro- trances, foyers, corridors, offices, ele- visions of the Randolph-Sheppard Act; vators, stairways, and parking lots, or (ii) Posting notices on bulletin which otherwise tends to impede or dis- boards as authorized in § 243.2(a) of this turb the public employees in the per- chapter; formance of their duties, or which oth- (iii) The solicitation of Postal Serv- erwise impedes or disturbs the general ice and other Federal military and ci- public in transacting business or ob- vilian personnel for contributions by taining the services provided on prop- recognized agencies as authorized erty, is prohibited. under Executive Order 12353, of March (f) Gambling. Participating in games 23, 1982. for money or other personal property, (2) Solicitations and other actions the operation of gambling devices, the which are prohibited by paragraph conduct of a lottery or pool, or the sell- (h)(1) of this section when conducted on ing or purchasing of lottery tickets, is Postal Service property should not be prohibited on postal premises. In ac- directed by mail or telephone to postal cordance with 20 U.S.C. 107a(a)(5), this employees on Postal Service property. prohibition does not apply to the vend- The Postal Service will not accept or ing or exchange of State Lottery tick- distribute mail or accept telephone ets at vending facilities operated by li- calls directed to its employees which censed blind persons where such lot- are believed to be contrary to para- teries are authorized by state law. graph (h)(1) of this section. (g) Alcoholic beverages, drugs, and (3) Leafleting, distributing lit- smoking. (1) A person under the influ- erature, picketing, and demonstrating ence of an alcoholic beverage or any by members of the public are prohib- drug that has been defined as a ‘‘con- ited in lobbies and other interior areas trolled substance’’ may not enter postal of postal buildings open to the public. property or operate a motor vehicle on Public assembly and public address, ex- postal property. The possession, sale, cept when conducted or sponsored by or use of any ‘‘controlled substance’’ the Postal Service, are also prohibited (except when permitted by law) or the in lobbies and other interior areas of sale or use of any alcoholic beverage postal building open to the public. (except as authorized by the Post- (4) Voter registration. Voter registra- master General or designee) on postal tion may be conducted on postal prem- premises is prohibited. The term ‘‘con- ises only with the approval of the post- trolled substance’’ is defined in section master or installation head provided 802 of title 21 U.S.C. that all of the following conditions are (2) Smoking (defined as having a met: lighted cigar, cigarette, pipe, or other (i) The registration must be con- smoking material) is prohibited in all ducted by government agencies or nonpostal buildings and office space, in- profit civic leagues or organizations cluding public lobbies. that operate for the promotion of so- (h) Soliciting, electioneering, collecting cial welfare but do not participate or debts, vending, and advertising. (1) Solic- intervene in any political campaign on iting alms and contributions, cam- behalf of any candidate or political paigning for election to any public of- party for any public office. fice, collecting private debts, soliciting (ii) Absolutely no partisan or polit- and vending for commercial purposes ical literature may be available, dis- (including, but not limited to, the played, or distributed. This includes vending of newspapers and other publi- photographs, cartoons, and other cations), displaying or distributing likenesses of elected officials and can- commercial advertising, collecting sig- didates for public office. natures on petitions, polls, or surveys (iii) The registration is permitted (except as otherwise authorized by only in those areas of the postal prem- Postal Service regulations), are prohib- ises regularly open to the public.

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(iv) The registration must not inter- safe manner at all times and shall com- fere with the conduct of postal busi- ply with the signals and directions of ness, postal customers, or postal oper- security force personnel, other author- ations. ized individuals, and all posted traffic (v) The organization conducting the signs. voter registration must provide and be (4) The blocking of entrances, drive- responsible for any equipment and sup- ways, walks, loading platforms, or fire plies. hydrants in or on property is prohib- (vi) Contributions may not be solicited. ited. (5) Parking without authority, park- (vii) Access to the workroom floor is ing in unauthorized locations or in lo- prohibited. cations reserved for other persons, or (viii) The registration activities are continuously in excess of 18 hours limited to an appropriate period before without permission, or contrary to the an election. direction of posted signs is prohibited. (5) Except as part of postal activities This section may be supplemented by or activities associated with those per- the postmaster or installation head mitted under paragraph (h)(4) of this from time to time by the issuance and section, no tables, chairs, freestanding posting of specific traffic directives as signs or posters, structures, or fur- may be required. When so issued and niture of any type may be placed in posted such directives shall have the postal lobbies or on postal walkways, same force and effect as if made a part steps, plazas, lawns or landscaped hereof. areas, driveways, parking lots, or other (l) Weapons and explosives. Notwith- exterior spaces. standing the provisions of any other (i) Photographs for news, advertising, law, rule or regulation, no person while or commercial purposes. Except as pro- on postal property may carry firearms, hibited by official signs or the direc- other dangerous or deadly weapons, or tions of security force personnel or explosives, either openly or concealed, other authorized personnel, or a Fed- eral court order or rule, photographs or store the same on postal property, for news purposes may be taken in en- except for official purposes. trances, lobbies, foyers, corridors, or (m) Nondiscrimination. There must be auditoriums when used for public meet- no discrimination by segregation or ings. Other photographs may be taken otherwise against any person or per- only with the permission of the local sons because of race, color, religion, postmaster or installation head. national origin, sex, or disability, in (j) Dogs and other animals. Dogs and furnishing, or by refusing to furnish to other animals, except those used to as- such person or persons the use of any sist persons with disabilities, must not facility of a public nature, including be brought upon postal property for all services, privileges, accommoda- other than official purposes. tions, and activities provided on postal (k) Vehicular and pedestrian traffic. (1) property. Drivers of all vehicles in or on property (n) Conduct with regard to meetings of shall be in possession of a current and the Board of Governors. (1) Without the valid state or territory issued driver’s permission of the chairman no person license and vehicle registration, and may participate in, film, televise, or the vehicle shall display all current broadcast any portion of any meeting and valid tags and licenses required by of the Board or any subdivision or com- the jurisdiction in which it is reg- mittee of the Board. Any person may istered. electronically record or photograph a (2) Drivers who have had their privi- meeting, as long as that action does lege or license to drive suspended or re- not tend to impede or disturb the mem- voked by any state or territory shall bers of the Board in the performance of not drive any vehicle in or on property their duties, or members of the public during such period of suspension or while attempting to attend or observe revocation. a meeting. (3) Drivers of all vehicles in or on (2) Disorderly conduct, or conduct property shall drive in a careful and which creates loud or unusual noise,

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obstructs the ordinary use of en- such rules should be directed to the re- trances, foyers, corridors, offices, gional counsel for the region involved. meeting rooms, elevators, stairways, or (2) Whoever shall be found guilty of parking lots, or otherwise tends to im- violating the rules and regulations in pede or disturb the members of the this section while on property under Board in the performance of their du- the charge and control of the Postal ties, or members of the public while at- Service is subject to a fine as provided tempting to attend or observe a meet- in 18 U.S.C. 3571 or imprisonment of ing of the Board or of any subdivision, not more than 30 days, or both. Noth- or committee of the Board, is prohib- ing contained in these rules and regula- ited. tions shall be construed to abrogate (3) Any person who violates para- any other Federal laws or regulations graph (n) (1) or (2) of this section may, or any State and local laws and regula- in addition to being subject to the pen- tions applicable to any area in which alties prescribed in paragraph (p) of the property is situated. this section, be removed from and (q) Enforcement. (1) Members of the barred from reentering postal property U.S. Postal Service security force shall during the meeting with respect to exercise the powers provided by 18 which the violation occurred. U.S.C. 3061(c)(2) and shall be respon- (4) A copy of the rules of this section sible for enforcing the regulations in governing conduct on postal property, this section in a manner that will pro- including the rules of this paragraph tect Postal Service property and per- appropriately highlighted, shall be sons thereon. posted in prominent locations at the (2) Local postmasters and installa- public entrances to postal property and tion heads may, pursuant to 40 U.S.C. outside the meeting room at any meet- 1315(d)(3) and with the approval of the ing of the Board of Governors or of any chief postal inspector or his designee, subdivision or committee of the Board. enter into agreements with State and (o) Depositing literature. Depositing or local enforcement agencies to insure posting handbills, flyers, pamphlets, that these rules and regulations are en- signs, poster, placards, or other lit- forced in a manner that will protect erature, except official postal and Postal Service property. other Governmental notices and an- (3) Postal Inspectors, Office of In- nouncements, on the grounds, walks, spector General Criminal Investiga- driveways, parking and maneuvering tors, and other persons designated by areas, exteriors of buildings and other the Chief Postal Inspector may like- structures, or on the floors, walls, wise enforce regulations in this sec- stairs, racks, counters, desks, writing tion. tables, window-ledges, or furnishings in [37 FR 24346, Nov. 16, 1972] interior public areas on postal premises, is prohibited. This prohibition EDITORIAL NOTE: For FEDERAL REGISTER ci- does not apply to: tations affecting § 232.1, see the List of CFR Sections Affected, which appears in the (1) Posting notices on bulletin boards Finding Aids section of the printed volume as authorized in § 243.2(a) of this chap- and at www.fdsys.gov. ter; (2) Interior space assigned to tenants PART 233—INSPECTION SERVICE for their exclusive use; AUTHORITY (3) Posting of notices by U.S. Govern- ment-related organizations, such as the Sec. Inaugural Committee as defined in 36 233.1 Arrest and investigative powers of U.S.C. 501. Postal Inspectors. (p) Penalties and other law. (1) Alleged 233.2 Circulars and rewards. violations of these rules and regula- 233.3 Mail covers. tions are heard, and the penalties pre- 233.4 Withdrawal of mail privileges. scribed herein are imposed, either in a 233.5 Requesting financial records from a fi- Federal district court or by a Federal nancial institution. magistrate in accordance with applica- 233.6 Test purchases under 39 U.S.C. 3005(e). ble court rules. Questions regarding 233.7 Forfeiture authority and procedures.

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233.8 Expedited forfeiture proceedings for ment of other laws of the United property seized for administrative for- States, if the Attorney General deter- feiture involving controlled substances mines that the violation of such laws in personal use quantities. 233.9 Expedited release of conveyances will have a detrimental effect upon the being forfeited in a judicial forfeiture operations of the Postal Service. proceeding for a drug-related offense. (c) Administrative subpoenas may be 233.10 Notice provisions. served by delivering a copy to a person 233.11 Mail reasonably suspected of being or by mailing a copy to his or her last dangerous to persons or property. known address. For the purposes of 233.12 Civil penalties. this provision, delivery of a copy in- AUTHORITY: 39 U.S.C. 101, 102, 202, 204, 401, cludes handing it to the party or leav- 402, 403, 404, 406, 410, 411, 1003, 3005(e)(1); 12 ing it at the party’s office or residence U.S.C. 3401–3422; 18 U.S.C. 981, 1956, 1957, 2254, with a person of suitable age and dis- 3061; 21 U.S.C. 881; Omnibus Budget Rec- cretion employed or residing therein. onciliation Act of 1996, sec. 662 (Pub. L. No. 104–208). Service by mail is complete upon mailing. § 233.1 Arrest and investigative powers (d) In conducting any investigation, of Postal Inspectors. Postal Inspectors are authorized to ac- (a) Authorization. Postal Inspectors cept, maintain custody of, and deliver are authorized to perform the following mail. functions in connection with their offi- [36 FR 4762, Mar. 12, 1971, as amended at 38 cial duties: FR 19124, July 18, 1973. Redesignated at 46 FR (1) Serve warrants and subpoenas 34330, July 1, 1981; 52 FR 12901, Apr. 20, 1987; issued under the authority of the 56 FR 55823, Oct. 30, 1991; 60 FR 5581, Jan. 30, United States; 1995; 67 FR 16024, Apr. 4, 2002; 72 FR 39011, (2) Make arrests without warrant for July 17, 2007] offenses against the United States § 233.2 Circulars and rewards. committed in their presence; (3) Make arrests without warrant for (a) Wanted circulars. The Inspection felonies cognizable under the laws of Service issues wanted circulars to as- the United States if they have reason- sist in locating and arresting fugitive able grounds to believe that the person postal offenders. Post these circulars in to be arrested has committed or is the most conspicuous place in the post committing such a felony; office lobby and in other prominent (4) Carry firearms; and places. Post near the Notice of Reward (5) Make seizures of property as pro- sign. Telephone or telegraph imme- vided by law. diately to the postal inspector in (b) Limitations. The powers granted charge any information on the possible by paragraph (a) of this section shall be location of the person wanted. Remove exercised only— and destroy circulars immediately (1) In the enforcement of laws regard- when notified of their cancellation or ing property in the custody of the when the circular is not listed in the Postal Service, property of the Postal periodic Postal Bulletin notices of cur- Service, the use of the mails, and other rent wanted circulars. postal offenses. With the exception of (b) Rewards. (1) Rewards will be paid enforcing laws related to the mails: up to the amounts and under the condi- (i) The Office of Inspector General tions stated in Poster 296, Notice of Re- will investigate all allegations of viola- ward, for the arrest and conviction of tions of postal laws or misconduct by persons for the following postal of- postal employees, including mail theft; fenses: and (i) Robbery or attempted robbery. (ii) The Inspection Service will inves- (ii) Mailing or causing to be mailed tigate all allegations of violations of bombs, explosives, poison, weapons of postal laws or misconduct by all other mass destruction, or controlled sub- persons. stances. (2) To the extent authorized by the (iii) Post office burglary. Attorney General pursuant to agree- (iv) Stealing or unlawful possession ment between the Attorney General of mail or money or property of the and the Postal Service, in the enforce- United States under the custody or

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control of the Postal Service, including gerous chemicals or biological materials, property of the Postal Service. which may kill or injure another, or injure (v) Destroying, obstructing or retard- the mails or other property. ing the passage of mail. Assault on Postal Employees, $50,000. Forc- (vi) Altering, counterfeiting, forging, ibly assaulting any officer or employee of the Postal Service while engaged in or on ac- unlawful uttering or passing of postal count of the performance of their official du- money orders; or the unlawful use, ties. counterfeiting or forgery of postage Controlled Substances, Illegal Drugs, or stamps or other postage; or the use, Cash Proceeds from Illegal Drugs, $50,000. sale or possession with intent to use or Mailing or causing to be mailed any con- sell, any forged or counterfeited post- trolled substances, illegal drugs, or proceeds age stamp or other postage. from the sale of illegal drugs. (vii) Assault on postal employee. Money Laundering, $50,000. Mailing or (viii) Murder or manslaughter of a causing to be mailed any money which has postal employee. been obtained illegally, or the use of postal money orders to launder illicit proceeds. (ix) Mailing or receiving through the Postage or Meter Tampering, $50,000. The mail any visual depiction involving the unlawful use, reuse, or forgery of postage use of a minor engaging in sexually ex- stamps, postage meter stamps, permit im- plicit conduct, or the use of the mail to prints or other postage; or the use, sale or facilitate any crime relating to the possession with intent to use or sell, any sexual exploitation of children. used, forged or counterfeited postage stamp (x) Mailing or causing to be mailed or other postage. any money which has been obtained il- Robbery, $50,000. Robbery or attempted legally, or the use of Postal Money Or- robbery of any custodian of any mail, or money or other property of the United ders to launder illicit proceeds. States under the control and jurisdiction of (2) The postmaster or a designated the United States Postal Service. employee should personally present re- Sexual Exploitation of Children, $50,000. ward notices to representatives of The use of the mails to traffic in child por- firms transporting mail, security or de- nography, or facilitate any other crime re- tective units of firms, police officers, lating to the sexual exploitation of children. sheriffs and their deputies, if prac- Burglary of Post Office, $10,000. Breaking ticable, and encourage their coopera- into, or attempting to break into, a post of- tion in protecting mail and Postal fice, station, branch, or building used wholly Service property. (See 273.14 of the Ad- or partially as a post office, or any building or area in a building where the business of ministrative Support Manual). the Postal Service is conducted, with intent NOTE: The text of Poster 296, referred to in to commit a larceny or other depredation paragraph (b)(1) of this section, reads as fol- therein. lows: Offenses Involving Postal Money Orders, The United States Postal Service offers a re- $10,000. Theft or possession of stolen postal ward up to the amounts shown for informa- money orders or any Postal Service equip- tion and services leading to the arrest and ment used to imprint money orders; or alter- conviction of any person for the following of- ing, counterfeiting, forging, unlawful utter- fenses: ing, or passing of postal money orders. Murder or Manslaughter, $100,000. The un- Theft, Possession, Destruction, or Obstruc- lawful killing of any officer or employee of tion of Mail, $10,000. Theft or attempted the Postal Service while engaged in or on ac- theft of any mail, or the contents thereof, or count of the performance of their official du- the theft of money or any other property of ties. the United States under the custody and Bombs or Explosives, $100,000. Mailing or control of the United States Postal Service causing to be mailed any bombs or explo- from any custodian, postal vehicle, railroad sives which may kill or harm another, or in- depot, airport, or other transfer point, post jure the mails or other property, or the plac- office or station or receptacle or depository ing of any bomb or explosive in a postal fa- established, approved, or designated by the cility, vehicle, depository or receptacle es- Postmaster General for the receipt of mail; tablished, approved or designated by the or destroying, obstructing, or retarding the Postmaster General for the receipt of mail. passage of mail, or any carrier or conveyance Offenses Involving the Mailing of Threat- carrying the mail. ening Communications, Weapons of Mass De- Workers’ Compensation Fraud, $10,000. De- struction, Poisons, or Hazardous Materials, frauding the Workers’ Compensation Pro- $100,000. Mailing or causing to be mailed any gram by any current or former postal em- threatening communications, actual or sim- ployee. ulated weapons of mass destruction, dan- Related Offenses

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The United States Postal Service also of- thereof shall be solely within the dis- fers rewards as stated above for information cretion of the Chief Postal Inspector or and services leading to the arrest and convic- his delegate and the submission of in- tion of any person: (1) For being an accessory to any of the above crimes; (2) for receiving formation or a claim for a reward shall or having unlawful possession of any mail, not establish a contractual right to re- money or property secured through the ceive any reward. The reward shall not above crimes; and (3) for conspiracy to com- exceed one-half of the amount col- mit any of the above crimes. lected by the Postal Service as a result General Provisions of civil or criminal proceedings to re- 1. The Postal Inspection Service inves- cover losses or penalties as a result of tigates the above described crimes. Informa- tion concerning the violations, requests for false or fraudulent claims or state- applications for rewards, and written claims ments submitted to the Postal Service. for rewards should be furnished to the near- Postal employees assigned to the Post- est Postal Inspector. The written claim for al Inspection Service or the Law De- reward payment must be submitted within partment are not eligible to receive a six months from the date of conviction of the reward under this section for informa- offender, or the date of formally deferred tion obtained while so employed. The prosecution or the date of the offender’s Chief Inspector may establish such pro- death, if killed in committing a crime or re- sisting lawful arrest for one of the above of- cedures and forms as may be desirable fenses. to give effect to this section including 2. The amount of any reward will be based procedures to protect the identity of on the significance of services rendered, persons claiming rewards under this character of the offender, risks and hazards section. involved, time spent, and expenses incurred. Amounts of rewards shown above are the [36 FR 4673, Mar. 12, 1971, as amended at 42 maximum amounts which will be paid. FR 43836, Aug. 31, 1977. Redesignated at 46 FR 3. The term ‘‘custodian’’ as used herein in- 34330, July 1, 1981, and amended at 47 FR cludes any person having lawful charge, con- 26832, June 22, 1982; 47 FR 46498, Oct. 19, 1982; trol, or custody of any mail matter, or any 49 FR 15191, Apr. 18, 1984; 54 FR 37795, Sept. money or other property of the United 13, 1989; 55 FR 32251, Aug. 8, 1990; 59 FR 5326, States under the control and jurisdiction of Feb. 4, 1994; 60 FR 54305, Oct. 23, 1995; 63 FR the United States Postal Service. 52160, Sept. 30, 1998; 69 FR 16166, Mar. 29, 2004] 4. The Postal Service reserves the right to reject a claim for reward where there has § 233.3 Mail covers. been collusion, criminal involvement, or im- (a) Policy. The U.S. Postal Service proper methods have been used to effect an arrest or to secure a conviction. It has the maintains rigid control and supervision right to allow only one reward when several with respect to the use of mail covers persons were convicted of the same offense, as an investigative technique for law or one person was convicted of several of the enforcement or the protection of na- above offenses. Postal employees are not eli- tional security. gible to receive a reward for the offenses list- (b) Scope. These regulations con- ed above, other than Workers’ Compensation stitute the sole authority and proce- fraud. Employees assigned to the Postal In- dure for initiating a mail cover, and for spection Service, the General Counsel’s office, and those who manage or administer processing, using and disclosing infor- the Injury Compensation Program are not el- mation obtained from mail covers. igible to receive rewards. (c) Definitions. For purpose of these 5. Other rewards not specifically referred regulations, the following terms are to in this notice may be offered upon the ap- hereby defined. proval of the Chief Postal Inspector (39 (1) Mail cover is the process by which U.S.C. 404(a)(8)). a nonconsensual record is made of any (c) The Chief Postal Inspector or his data appearing on the outside cover of delegate is authorized to pay a reward any sealed or unsealed class of mail to any person who provides informa- matter, or by which a record is made of tion leading to the detection of persons the contents of any unsealed class of or firms who obtain, or seek to obtain, mail matter as allowed by law, to ob- funds, property, or services from the tain information in order to: Postal Service based upon false or (i) Protect national security, fraudulent activities, statements or (ii) Locate a fugitive, claims. The decision as to whether a (iii) Obtain evidence of commission reward shall be paid and the amount or attempted commission of a crime,

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(iv) Obtain evidence of a violation or that is punishable by law by imprison- attempted violation of a postal statute, ment for a term exceeding one year. or (7) Postal statute refers to a statute (v) Assist in the identification of describing criminal activity, regardless property, proceeds or assets forfeitable of the term of imprisonment, for which under law. the Postal Service has investigative (2) For the purposes of § 233.3 record is authority, or which is directed against a transcription, photograph, photocopy the Postal Service, its operations, pro- or any other facsimile of the image of grams, or revenues. the outside cover, envelope, wrapper, (8) Law enforcement agency is any au- or contents of any class of mail. thority of the Federal Government or (3) Sealed mail is mail which under any authority of a State or local gov- postal laws and regulations is included ernment, one of whose functions is to: within a class of mail maintained by (i) Investigate the commission or at- the Postal Service for the transmission tempted commission of acts consti- of letters sealed against inspection. tuting a crime, or Sealed mail includes: First-Class Mail; (ii) Protect the national security. Priority Mail; Express Mail; Express (9) Protection of the national security Mail International; Global Express means to protect the United States Guaranteed items containing only doc- from any of the following actual or po- uments; Priority Mail International tential threats to its security by a for- flat-rate envelopes and small flat-rate eign power or its agents: boxes; International Priority Airmail, (i) An attack or other grave, hostile except M-bags; International Surface act; Air Lift, except M-bags; First-Class Mail International; Global Bulk Econ- (ii) Sabotage, or international ter- omy, except M-bags; certain Global Di- rorism; or rect mail as specified by customer con- (iii) Clandestine intelligence activi- tract; and International Transit Mail. ties, including commercial espionage. (4) Unsealed mail is mail which under (10) Emergency situation refers to cir- postal laws or regulations is not in- cumstances which require the imme- cluded within a class of mail main- diate release of information to prevent tained by the Postal Service for the the loss of evidence or in which there is transmission of letters sealed against a potential for immediate physical inspection. Unsealed mail includes: harm to persons or property. Periodicals; Standard Mail; Package (d) Authorizations—Chief Postal In- Services; incidental First-Class Mail spector. (1) The Chief Postal Inspector attachments and enclosures; Global is the principal officer of the Postal Express Guaranteed items containing Service in the administration of all non-documents; Priority Mail Inter- matters governing mail covers. The national, except flat-rate envelopes Chief Postal Inspector may delegate and small flat-rate boxes; International any or all authority in this regard to Direct Sacks—M-bags; certain Global not more than two designees at Inspec- Direct mail as specified by customer tion Service Headquarters. contract; and all items sent via ‘‘Free (2) Except for national security mail Matter for the Blind or Handicapped’’ covers, the Chief Postal Inspector may under 39 U.S.C. 3403–06 and Inter- also delegate any or all authority to national Mail Manual 270. the Manager, Inspector Service Oper- (5) Fugitive is any person who has fled ations Support Group, and, for emer- from the United States or any State, gency situations, to Inspectors in the District of Columbia, territory or Charge. The Manager, Inspection Serv- possession of the United States, to ice Operations Support Group, may del- avoid prosecution for a crime, to avoid egate this authority to no more than punishment for a crime, or to avoid two designees at each Operations Sup- giving testimony in a criminal pro- port Group. ceeding. (3) All such delegations of authority (6) Crime, for the purposes of this sec- shall be issued through official, written tion, is any commission of an act or directives. Except for delegations at the attempted commission of an act Inspection Service Headquarters, such

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delegations shall only apply to the geo- warrant, even though it may contain graphic areas served by the Manager, criminal or otherwise nonmailable Inspection Service Operation Support matter, or furnish evidence of the com- Group, or designee. mission of a crime, or the violation of (e) The Chief Postal Inspector, or his a postal statute. designee, may order mail covers under (2) No employee of the Postal Service the following circumstances: shall open or inspect the contents of (1) When a written request is received any unsealed mail, except for the pur- from a postal inspector that states rea- pose of determining: son to believe a mail cover will produce (i) Payment of proper postage, or evidence relating to the violation of a (ii) Mailability. postal statute. (3) No mail cover shall include mat- (2) When a written request is received ter mailed between the mail cover sub- from any law enforcement agency in ject and the subject’s known attorney. which the requesting authority speci- (4) No officer or employee of the fies the reasonable grounds to dem- Postal Service other than the Chief onstrate the mail cover is necessary to: Postal Inspector, Manager, Inspection (i) Protect the national security, Service Operations Support Group, and (ii) Locate a fugitive, their designees, are authorized to order (iii) Obtain information regarding mail covers. Under no circumstances the commission or attempted commis- may a postmaster or postal employee sion of a crime, or furnish information as defined in (iv) Assist in the identification of § 233.3(c)(1) to any person, except as au- property, proceeds or assets forfeitable thorized by a mail cover order issued because of a violation of criminal law. by the Chief Postal Inspector or des- (3) When time is of the essence, the ignee, or as directed by a postal inspec- Chief Postal Inspector, or designee, tor under the circumstances described may act upon an oral request to be in § 233.3(f). confirmed by the requesting authority (5) Except for mail covers ordered in writing within three calendar days. upon fugitives or subjects engaged, or Information may be released by the suspected to be engaged, in any activ- Chief Postal Inspector or designee, ity against the national security, no prior to receipt of the written request, mail cover order shall remain in effect only when the releasing official is sat- for more than 30 days, unless adequate isfied that an emergency situation ex- justification is provided by the request- ists. ing authority. At the expiration of the (f)(1) Exceptions. A postal inspector, mail cover order period, or prior there- or a postal employee acting at the di- to, the requesting authority may be rection of a postal inspector, may granted additional 30-day periods under record the information appearing on the same conditions and procedures ap- the envelope or outer wrapping, of mail plicable to the original request. The re- without obtaining a mail cover order, questing authority must provide a only under the circumstances in para- statement of the investigative benefit graph (f)(2) of this section. of the mail cover and anticipated bene- (2) The mail must be: fits to be derived from its extension. (i) Undelivered mail found abandoned (6) No mail cover shall remain in or in the possession of a person reason- force longer than 120 continuous days ably believed to have stolen or embez- unless personally approved for further zled such mail, extension by the Chief Postal Inspector (ii) Damaged or rifled, undelivered or designees at National Headquarters. mail, or (7) Except for fugitive cases, no mail (iii) An immediate threat to persons cover shall remain in force when an in- or property. formation has been filed or the subject (g) Limitations. (1) No person in the has been indicted for the matter for Postal Service except those employed which the mail cover is requested. If for that purpose in dead-mail offices, the subject is under investigation for may open, or inspect the contents of, further criminal violations, or a mail or permit the opening or inspection of cover is required to assist in the identi- sealed mail without a federal search fication of property, proceeds or assets

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forfeitable because of a violation of sive and not subject to further admin- criminal law, a new mail cover order istrative review. must be requested consistent with (k) Military postal system. Section these regulations. 233.3 does not apply to the military (8) Any national security mail cover postal system overseas or to persons request must be approved personally by performing military postal duties over- the head of the law enforcement agen- seas. Information about regulations cy requesting the cover or one designee prescribed by the Department of De- at the agency’s headquarters level. The fense for the military postal system head of the agency shall notify the overseas may be obtained from the De- Chief Postal Inspector in writing of partment of Defense. such designation. [58 FR 36599, July 8, 1993, as amended at 61 (h) Records. (1) All requests for mail FR 42557, Aug. 16, 1996; 74 FR 18297, Apr. 22, covers, with records of action ordered 2009] thereon, and all reports issued pursuant thereto, shall be deemed within the § 233.4 Withdrawal of mail privileges. custody of the Chief Postal Inspector. (a) False representation and lottery or- However, the physical storage of this ders—(1) Issuance. Pursuant to 39 U.S.C. data shall be at the discretion of the 3005, the Judicial Officer of the Postal Chief Postal Inspector. Service, acting upon a satisfactory evi- (2) If the Chief Postal Inspector, or dentiary basis, may issue a mail-stop his designee, determines a mail cover order against anyone seeking mailed was improperly ordered, all data ac- remittance of money or property by quired while the cover was in force means of a false-representation or lot- shall be destroyed, and the requesting tery scheme. Such orders provide for authority notified of the discontinu- return of mail and refund of postal ance of the mail cover and the reasons money orders to remitters. therefor. (2) Enforcement. Notice of these or- (3) Any data concerning mail covers ders, including any necessary instruc- shall be made available to any mail tions on enforcement responsibilities cover subject in any legal proceeding and procedures, is published in the through appropriate discovery proce- Postal Bulletin. Generally, an order dures. against a domestic enterprise is en- (4) The retention period for files and forced only by the post office des- records pertaining to mail covers shall ignated in the order. All personnel be 8 years. processing mail for dispatch abroad as- (i) Reporting to requesting authority. sist in enforcing orders against foreign Once a mail cover has been duly or- enterprises by forwarding mail ad- dered, authorization may be delegated dressed to such enterprises to des- to any employee in the Postal Inspec- ignated post offices. tion Service to transmit mail cover re- (b) Fictitious name or address and not ports directly to the requesting author- residents of the place of address orders— ity. (1) Issuance. Pursuant to 39 U.S.C. 3003, (j) Review. (1) The Chief Postal In- 3004, when there is satisfactory evi- spector, or his designee at Inspection dence that mail is addressed to a ficti- Service Headquarters shall periodically tious name, title, or address used for review mail cover orders issued by the any unlawful business, and no one has Manager, Inspection Service Oper- established a right to have the mail de- ations Support Group or their des- livered to him, or that mail is ad- ignees to ensure compliance with these dressed to places not the residence or regulations and procedures. regular business address of the person (2) The Chief Postal Inspector shall for whom they are intended to enable select and appoint a designee to con- the person to escape identification, the duct a periodic review of national secu- Judicial Officer may, pursuant to Part rity mail cover orders. 964, order that the mail be returned to (3) The Chief Postal Inspector’s de- the sender. termination in all matters concerning (2) Notice. (i) The Chief Postal Inspec- mail covers shall be final and conclu- tor or his delegate must give notice to

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the addressee of mail withheld from de- designated shall not delegate this au- livery pursuant to 39 U.S.C. 3003, 3004 thority to others; that such action has been taken and (4) The request adheres to the re- advise him that he may: quirements set forth in paragraph (d) (A) Obtain such mail upon presenting of this section; and proof of his identity and right to re- (5) The notice requirements set forth ceive such mail, or in section 1108(4) of the Act, or the re- (B) Petition the Judicial Officer for quirements pertaining to the delay of the return of such mail. (ii) The notice notice in section 1109 of the Act, are must be in writing and served by per- satisfied, except in situations (e.g., sec- sonal service upon the addressee or by tion 1113(g)) where no notice is re- Certified Mail (Return Receipt Re- quired. quested) and by First Class Mail. (d) Written request. (1) The formal re- (3) Enforcement. Notice of any order quest must be in the form of a letter or issued pursuant to 39 U.S.C. 3003, 3004, memorandum to an appropriate official and any necessary implementing in- of the financial institution and must structions, are published in the Postal contain: Bulletin. (i) The signature of the issuing official and the official’s name, title, busi- [45 FR 1613, Jan. 8, 1980. Redesignated at 46 FR 34330, July 1, 1981, and amended at 53 FR ness address, and business phone num- 1780, Jan. 22, 1988] ber; (ii) The identity of the customer or § 233.5 Requesting financial records customers to whom the records per- from a financial institution. tain; (a) Definitions. The terms used in this (iii) A reasonable description of the section have the same meaning as records sought; and similar terms used in the Right to Fi- (iv) Any additional information nancial Privacy Act of 1978, Title XI of which may be appropriate—e.g., the Pub. L. 95–630. Act means the Right to date when the opportunity for the cus- Financial Privacy Act of 1978. tomer to challenge the formal written (b) Purpose. The purpose of these reg- request expires, the date when the In- ulations is: (1) To authorize the Inspec- spection Service Department expects tion Service Department of the U.S. to present a certificate of compliance Postal Service to request financial with the applicable provisions of the records from a financial institution Act, the name and title of the indi- pursuant to the formal written request vidual (if known) to whom disclosure is procedure authorized by section 1108 of to be made. the Act and (2) to set forth the condi- (2) In cases where customer notice is tions under which such request may be delayed by court order, a copy of the made. court order must be attached to the (c) Authorization. The Inspection formal written request. Service Department is authorized to (e) Certification. Before obtaining the request financial records of any cus- requested records following a formal tomer from a financial institution pur- written request, a supervisory official suant to a formal written request authorized to issue a request must cer- under the Act only if: tify in writing to the financial institu- (1) No administrative summons or tion that the Inspection Service De- subpoena authority reasonably appears partment has complied with the appli- to be available to the Inspection Serv- cable provisions of the Act. ice Department to obtain financial [44 FR 39161, July 5, 1979. Redesignated at 46 records for the purpose for which the FR 34330, July 1, 1981] records are sought; (2) There is reason to believe that the § 233.6 Test purchases under 39 U.S.C. records sought are relevant to a legiti- 3005(e). mate law enforcement inquiry and will (a) Scope. This section, which imple- further that inquiry; ments 39 U.S.C. 3005(e), supplements (3) The request is issued by a super- any postal regulations or instructions visory official of a rank designated by regarding test purchases or test pur- the Chief Postal Inspector. Officials so chase procedures. It is limited to test

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purchases conducted according to 39 served. The person making the request U.S.C. 3005(e). must retain a copy of the Test Pur- (b) Definitions—(1) Test purchase. The chase Request, the record of service, acquisition of any article or service, and the money order receipt or a pho- for which money or property are tocopy of the issued check or the can- sought through the mails, from the celled check. Alternatively, the re- person or representative offering the quest may be made by certified mail. article or service. The purpose is to in- (d) Authorizations. The Chief Postal vestigate possible violations of postal Inspector is the principal officer of the laws. Postal Service for the administration (2) Test Purchase Request. A written of all matters governing test purchases document requesting the sale of an ar- under this section. The Chief Inspector ticle or service pursuant to 39 U.S.C. may delegate any or all authority in 3005(e) and containing the following in- this regard to any or all postal inspec- formation: tors. (i) The name and address of the per- [49 FR 7230, Feb. 28, 1984; 49 FR 8250, Mar. 6, son, firm, or corporation to whom the 1984] request is directed; (ii) The name, title, signature, office § 233.7 Forfeiture authority and proce- mailing address, and office telephone dures. number of the person making the re- (a) Designation of officials having for- quest; feiture authority. The Chief Postal In- (iii) A description of the article or spector is authorized to perform all du- service requested which is sufficient to ties and responsibilities necessary on enable the person to whom the request behalf of the Postal Service and the Of- is made to identify the article or serv- fice of Inspector General to enforce 18 ice being sought; U.S.C. 981, 2254, and 21 U.S.C. 881, to (iv) A statement of the nature of the delegate all or any part of this author- conduct under investigation; ity to Deputy Chief Inspectors, Inspec- (v) A statement that the article or tors in Charge, and Inspectors of the service must be tendered at the time Postal Inspection Service, and to issue and place stated in the purchase re- such instructions as may be necessary quest, unless the person making the re- to carry out this authority. quest and the person to whom it is (b) Administrative forfeiture authority. made agree otherwise in writing; The Chief Postal Inspector is author- (vi) A verbatim statement of 39 ized to conduct administrative forfeit- U.S.C. 3005, 3007; and ures under the statutes identified in (vii) A statement that failure to pro- paragraph (a) of this section, following, vide the requested article or service where applicable, the procedures pro- may be considered in a proceeding vided by the customs laws of the under 39 U.S.C. 3007 to determine United States (19 U.S.C. 1600 et seq.), whether probable cause exists to be- and to pay valid liens and mortgages lieve that 39 U.S.C. 3005 is being vio- against property that has been so for- lated. feited. (c) Service of Test Purchase Request. (1) (c) Inventory. An inventory of all The original of the Test Purchase Re- property seized for forfeiture under the quest must be delivered to the person, statutes identified in paragraph (a) of firm, or corporation to whom the re- this section shall be prepared and quest is made or to his or its represent- maintained by the Postal Inspection ative. It must be accompanied by a Service. The inventory should occur check or money order in the amount within seven days of the seizure. The for which the article or service is of- inventory must, at a minimum, iden- fered for sale, made payable to the per- tify all property seized, state the exact son, firm or corporation making the location of the property at the time of offer. its seizure, and describe in detail the (2) The person serving the Test Pur- condition of the property. A written re- chase Request must make and sign a ceipt containing such information and record, stating the date and place of identifying the Postal Inspector who service and the name of the person conducted the seizure must be provided

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to the party from whom the property must provide the U.S. Attorney a com- was seized, or the party’s agent or rep- plete written description of the prop- resentative, at the time of the seizure erty, a statement of the facts and cir- or as soon thereafter as is practicable. cumstances leading to the seizure of (d) Custody. Custody of all property the property, including all facts and seized for forfeiture under the statutes documentation leading to the conclu- identified in paragraph (a) of this sec- sion that the seized property is subject tion is maintained by the U.S. Mar- to forfeiture, and such additional infor- shals Service, except property held for mation as the U.S. Attorney may re- evidentiary purposes; retained for offi- quire for the purpose of instituting a cial use upon forfeiture; subject to eq- judicial forfeiture action. uitable transfer to federal, state or (h) Notice of seizure for property having local law enforcement agencies; or sub- a value of $500,000 or less, or for monetary ject to civil administrative forfeiture. instruments or for conveyances which (e) Appraisal. The Postal Inspection were used to transport or store any con- Service must promptly obtain or com- trolled substance; advertisement; declara- plete an appraisal of all seized prop- tion of forfeiture. (1) The Postal Inspec- erty. The appraisal value is the fair tion Service must cause written notice market value of the property, which is of the seizure of all property subject to the highest price, in terms of money, civil administrative forfeiture to be which a property will bring in a com- sent to each known party that may petitive and open market. have a possessory or ownership interest (f) Quick-release. Property subject to in the seized property. The notice must administrative forfeiture may, prior to describe the property seized; state the forfeiture, be released by the Postal In- date, place, and cause for seizure; and spection Service to the owner of the inform the party of the intent of the property having an immediate right to Postal Inspection Service to forfeit the possession of the property when the property. In addition, the notice must Postal Inspection Service concludes state that any person desiring a judi- that release of the property is in the cial determination of forfeiture must best interest of justice. An agreement file a claim and bond (see paragraph 2 to hold harmless the United States, the of this subsection) with a designated Postal Inspection Service, and all other official of the Postal Inspection Serv- involved entities should be obtained ice, within twenty days from the date from the owner. A decision for quick of the first publication of the notice of release of the property should be made seizure (see paragraph (4) of this sub- within five days of the seizure. section), or of the date of the letter of (g) Judicial forfeiture. If the appraised personal notice required by this para- value of property seized exceeds graph, whichever is later. Any claim $500,000, with the exception of: (1) Mon- submitted pursuant to this paragraph etary instruments within the meaning is invalid unless accompanied by a of 31 U.S.C. 5312(a)(3), or (2) any con- bond meeting the requirements of para- veyance which was used to import, ex- graph (2), or a completed PS Form 1518, port, transport, or store any controlled Petition to Proceed in Forma Pauperis. substance or if a claim and satisfactory (2) A bond in the amount of $5,000 or bond have been received for property ten percent of the value of the claimed appraised at $500,000 or less, or for any property, whichever is lower, but in no monetary instruments within the event less than $250, must accompany meaning of 31 U.S.C. 5312(a)(3) or any any claim submitted pursuant to para- conveyance which was used to import, graph (1). The bond may be in the form export, transport, or store any con- of a cashier’s check, certified check, or trolled substance the Postal Inspection money order made payable to the Service must transmit the claim and United States of America, or satisfac- bond to the U.S. Attorney for the judi- tory sureties. If a claimant is financial district in which the seizure was cially unable to post the bond because made and request that the U.S. Attor- of indigency, such a person may re- ney promptly institute a judicial for- quest a waiver of the bond by comple- feiture proceeding against the prop- tion of PS Form 1518, Petition to Proceed erty. The Postal Inspection Service in Forma Pauperis.

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(3) Upon receipt of the claim and forfeiture, then the Postal Service or bond, the Postal Inspection Service the Marshals Service may order de- must, upon determining that the docu- struction or other disposition of the ments are in proper form and the sure- property including alteration of the ties satisfactory, transmit the docu- property into an article that is not pro- ments to the appropriate U.S. Attorney hibited. as provided in subsection (g). If the (j) Remission or mitigation of adminis- documents are not satisfactory, the trative, civil, and criminal forfeitures—(1) Postal Inspection Service must notify Authority, purpose, and scope—(i) Pur- the party making the claim and may pose. This section sets forth the proce- allow a reasonable time for correction. dures for Postal Inspection Service of- If correction is not made within the ficials to follow when considering re- time allowed for that purpose, the admission or mitigation of administra- ministrative forfeiture must proceed as tive forfeitures under the jurisdiction though the claim and bond had not of the Postal Service. The purpose of been tendered. these regulations is to provide a basis (4) Notice of administrative for- for ameliorating the effects of forfeiture proceedings containing the in- feiture through the partial or total re- formation required by subsection (h)(1) mission of forfeiture for individuals must be published once each week for who have an interest in the forfeited at least three successive weeks in a property but who did not participate newspaper of general circulation in the in, or have knowledge of, the conduct judicial district in which the property that resulted in the property being sub- was seized. If a claim and satisfactory ject to forfeiture and, where required, bond is not filed within the time al- took all reasonable steps under the cir- lowed, the Postal Inspection Service cumstances to ensure that such prop- may declare the property forfeited. erty would not be used, acquired, or (i) Disposition of forfeited property. (1) disposed of contrary to law. Addition- Whenever property is forfeited admin- ally, these regulations provide for par- istratively, the Postal Inspection Serv- tial or total mitigation of the for- ice may: feiture and imposition of alternative (i) Retain the property for official conditions in appropriate cir- use; cumstances. (ii) Transfer ownership of the prop- (ii) Authority to grant remission and erty to any federal, state or local law mitigation. (A) Remission and mitiga- enforcement agency that participated tion functions in administrative for- in the investigation leading to the forfeitures are performed by the agency feiture; seizing the property. Within the Postal (iii) Sell any property which is not Inspection Service, authority to grant required to be destroyed by law and remission and mitigation is delegated which is not harmful to the public; to the Independent Counsel, Office of (iv) Destroy the property; or the Chief Inspector, Washington, DC. (v) Dispose of the property as other- (B) Remission and mitigation func- wise permitted by law. tions in judicial cases are within the (2) If the laws of a state in which an jurisdiction of the Criminal Division of article of forfeited property is located the Department of Justice. Within the prohibit the sale or possession of such Criminal Division, authority to grant property or if the Postal Service and remission and mitigation has been del- the Marshals Service are of the opinion egated to the Chief, Asset Forfeiture that it would be more advantageous to and Money Laundering Section. sell the forfeited property in another (C) The powers and responsibilities district, the property may be moved to within these regulations may be redele- and sold in such other district. gated to attorneys or managers work- (3) If, after an administrative for- ing under the supervision of the des- feiture of property is completed, it ap- ignated officials. pears that the proceeds of sale will not (D) The time periods and internal re- be sufficient to pay the costs of sale or quirements established in these regula- the proceeds will be insignificant in re- tions are designed to guide the orderly lation to the expenses involved in the administration of the remission and

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mitigation process and are not in- subject to forfeiture. A lien creditor tended to create rights or entitlements qualifies as a lienholder if the lien: in favor of individuals seeking remis- (A) Was established by operation of sion or mitigation. These regulations law or contract; will apply to all decisions on petitions (B) Was created as a result of an ex- for remission or mitigation made on or change of money, goods, or services; after July 1, 1997. These regulations and will apply to decisions on requests for (C) Is perfected against the specific reconsideration of a denial of a peti- property forfeited for which remission tion under paragraphs (j)(3)(x) and or mitigation is sought (e.g., a real es- (3)(xi) of this section only if the initial tate mortgage, a mechanic’s lien). decision on the petition was made under the provisions of this part effec- (ix) The term net equity means the tive July 1, 1997. amount of a lienholder’s monetary in- (E) This section governs any petition terest in property subject to forfeiture. for remission or mitigation filed with Net equity shall be computed by deter- the Chief Postal Inspector and super- mining the amount of unpaid principal sedes any Postal Service regulation and unpaid interest at the time of sei- governing petitions for remission or zure, and by adding to that sum unpaid mitigation to the extent such regula- interest calculated from the date of tion is inconsistent with this section. seizure through the last full month (2) Definitions. As used in this part: prior to the date of the decision on the (i) The term administrative forfeiture petition. Where a rate of interest is set means the process by which property forth in a security agreement, the rate may be forfeited by an investigative of interest to be used in this computa- agency rather than through judicial tion will be the annual percentage rate proceedings. so specified in the security agreement (ii) The term appraised value means that is the basis of the lienholder’s in- the estimated market value of an asset terest. In this computation, however, at the time and place of seizure if such there shall be no allowances for attor- or similar property was freely offered neys’ fees, accelerated or enhanced infor sale between a willing seller and a terest charges, amounts set by con- willing buyer. tract as damages, unearned extended (iii) The term Attorney General means warranty fees, insurance, service con- the Attorney General of the United tract charges incurred after the date of States or his or her designee. seizure, allowances for dealer’s reserve, (iv) The term beneficial owner means or any other similar charges. a person with actual use of, as well as (x) The term owner means the person an interest in, the property subject to in whom primary title is vested or forfeiture. whose interest is manifested by the ac- (v) The term general creditor means tual and beneficial use of the property, one whose claim or debt is not secured even though the title is vested in an- by a specific right to obtain satisfac- other. A victim of an offense as defined tion against the particular property subject to forfeiture. in paragraph (j) (2)(xxi) of this section (vi) The term judgment creditor means may also be an owner if he or she has one who has obtained a judgment a present legally cognizable ownership against the debtor but has not yet re- interest in the property forfeited. A ceived full satisfaction of the judg- nominal owner of property will not be ment. treated as its true owner if he or she is (vii) The term judicial forfeiture not its beneficial owner. means either a civil or criminal pro- (xi) The term person means an indi- ceeding in a United States District vidual, partnership, corporation, joint Court that may result in a final judg- business enterprise, estate, or other ment and order of forfeiture. legal entity capable of owning prop- (viii) The term lienholder means a erty. creditor whose claim or debt is secured (xii) The term petition means a peti- by a specific right to obtain satisfaction for remission or mitigation of for- tion against the particular property feiture under these regulations. This

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definition includes a petition for res- (xix) The term Ruling Official means toration of the proceeds of sale of for- any official to whom decision making feited property and a petition for the authority has been delegated pursuant value of forfeited property placed into to paragraph (j)(1)(ii) of this section. official use. (xx) The term seizing agency means (xiii) The term petitioner means the the federal agency that seized the prop- person applying for remission, mitiga- erty or adopted the seizure of another tion, restoration of the proceeds of agency for federal forfeiture. sale, or for the appraised value of for- (xxi) The term victim means a person feited property under these regula- who has incurred a pecuniary loss as a tions. A petitioner may be an owner of direct result of the commission of the forfeited property as defined in para- offense underlying a forfeiture. A drug graph (j)(2)(x) of this section; a user is not considered a victim of a lienholder as defined in paragraph drug trafficking offense under this defi- (j)(2)(viii) of this section; or a victim as nition. A victim does not include one defined in paragraph (j)(2)(xxi) of this who acquires a right to sue the perpe- section subject to the limitations of trator of the criminal offense for any paragraph (j)(8) of this section. loss by assignment, subrogation, inher- (xiv) The term Postal Service Fund itance, or otherwise from the actual means the United States Postal Fund victim, unless that person has acquired established under 39 U.S.C. 2003. an actual ownership interest in the forfeited property. (xv) The term property means real or (xxii) The term violator means the personal property of any kind capable person whose use or acquisition of the of being owned or possessed. property in violation of the law sub- (xvi) The term record means a series jected such property to seizure for for- of arrests for related crimes, unless the feiture. arrestee was acquitted or the charges (3) Petitions in administrative forfeiture were dismissed for lack of evidence; a cases—(i) Notice of seizure. The notice of conviction for a related crime or com- seizure and intent to forfeit the prop- pletion of sentence within ten years of erty shall advise any persons who may the acquisition of the property subject have a present ownership interest in to forfeiture; or two convictions for a the property to submit their petitions related crime at any time in the past. for remission or mitigation within (xvii) The term related crime as used thirty (30) days of the date they receive in paragraphs (j)(2)(xvi) and (6)(v) of the notice in order to facilitate proc- this section means any crime similar essing. Petitions shall be considered in nature to that which gives rise to any time after notice until the for- the seizure of property for forfeiture. feited property is placed into official For example, where property is seized use, sold, or otherwise disposed of ac- for a violation of the federal laws deal- cording to law, except in cases involving with drugs, a related crime would ing petitions to restore the proceeds be any offense involving a violation of from the sale of forfeited property. A the federal laws relating to drugs or notice of seizure shall include the title the laws of any state or political sub- of the seizing agency, the Ruling Offi- division thereof relating to drugs. cial, the mailing and street address of (xviii) The term related offense as the official to whom petitions should used in paragraph (j)(8) of this section be sent, and an asset identifier number. means: (ii) Persons who may file. A petition (A) Any predicate offense charged in for remission or mitigation must be a Federal Racketeer Influenced and filed by a petitioner as defined in para- Corrupt Organizations Act (RICO) graph (j)(2)(xiii) of this section or as count for which forfeiture was ordered; prescribed in paragraphs (j)(9) (vii) and or (viii) of this section. (B) An offense committed as part of (iii) Contents of petition. (A) All peti- the same scheme or design, or pursuant tions must include the following infor- to the same conspiracy, as was in- mation in clear and concise terms: volved in the offense for which the for- (1) The name, address, and social se- feiture was ordered. curity or other taxpayer identification

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number of the person claiming an in- cision shall be sent by certified mail to terest in the seized property who is the petitioner, or, if represented by an seeking remission or mitigation; attorney, to the petitioner’s attorney. (2) The name of the seizing agency, A copy of the decision shall also be the asset identifier number, and the sent to the U.S. Marshals Service or date and place of seizure; other property custodian. The written (3) A complete description of the decision shall include the terms and property including make, model, and conditions, if any, upon which the re- serial numbers, if any; and mission or mitigation is granted and (4) A description of the petitioner’s the procedures the petitioner must fol- interest in the property as owner, low to obtain release of the property or lienholder, or otherwise, supported by the monetary interest therein. original or certified bills of sale, con- (ix) Petitions denied. If the Ruling Of- tracts, deeds, mortgages, or other doc- ficial denies a petition, a copy of the umentary evidence. decision shall be sent by certified mail (B) Any factual recitation or docu- to the petitioner, or, if represented by mentation of any type in a petition an attorney, to the petitioner’s attor- must be supported by a sworn affidavit. ney of record. A copy of the decision (iv) Releases. In addition to the con- shall also be sent to the U.S. Marshals tents of the petition for remission or Service or other property custodian. mitigation set forth in paragraph The written decision shall specify the (j)(3)(iii) of this section, upon request, reason that the petition was denied. the petitioner shall also furnish the The decision shall advise the petitioner agency with an instrument executed by that a request for reconsideration of the titled or registered owner and any the denial of the petition may be sub- other known claimant of an interest in mitted to the Ruling Official in accord- the property releasing interest in such ance with paragraph (j)(3)(x) of this property. section. (v) Filing petition with agency. (A) A (x) Request for reconsideration. (A) A petition for remission or mitigation of request for reconsideration of the de- an administrative forfeiture by the nial of the petition shall be considered Postal Inspection Service shall be sent if: to the Chief Postal Inspector, United States Postal Service, 475 L’Enfant (1) It is postmarked or received by Plaza SW, Washington, DC 20260–2100. the office of the Ruling Official within (B) The petition shall be sworn to by ten (10) days from the receipt of the no- the petitioner or by the petitioner’s at- tice of the denial of the petition by the torney upon information and belief, petitioner; and supported by the client’s sworn notice (2) The request is based on informa- of representation pursuant to 28 U.S.C. tion or evidence not previously consid- 1746, as set out in paragraph (j)(9)(vii) ered that is material to the basis for of this section. the denial or presents a basis clearly (vi) Agency investigation. Upon receipt demonstrating that the denial was er- of a petition, the Postal Inspection roneous. Service shall investigate the merits of (B) In no event shall a request for re- the petition and prepare a written reconsideration be decided by the same port containing the results of that in- Ruling Official who ruled on the origi- vestigation. This report shall be sub- nal petition. mitted to the Ruling Official for review (C) Only one request for reconsider- and consideration. ation of a denial of a petition shall be (vii) Ruling. Upon receipt of the peti- considered. tion and the agency report, the Ruling (xi) Restoration of proceeds from sale. Official shall review the petition and (A) A petition for restoration of the the report, and shall rule on the merits proceeds from the sale of forfeited of the petition. No hearing shall be property, or for the appraised value of held. forfeited property when the forfeited (viii) Petitions granted. If the Ruling property has been retained by or deliv- Official grants a remission or mitiga- ered to a government agency for offi- tion of the forfeiture, a copy of the de- cial use, may be submitted by an owner

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or lienholder in cases in which the peti- the forfeited property by statute. (If tioner: the applicable civil forfeiture statute (1) Did not know of the seizure prior contains no innocent owner defense, to the entry of a declaration of for- the innocent owner provisions applica- feiture; and ble to 21 U.S.C. 881(a)(4) shall apply.) (2) Could not reasonably have known Unless otherwise provided by statute, of the seizure prior to the entry of a in the case of petitioners who acquired declaration of forfeiture. their interest in the property after the (B) Such a petition shall be sub- time of the violation underlying the mitted pursuant to paragraphs (j)(3)(ii) forfeiture, the question of whether the through (v) of this section within nine- petitioner had knowledge of the viola- ty (90) days from the date the property tion shall be determined as of the point is sold or otherwise disposed of. in time when the interest in the prop- (4) Petitions in judicial forfeiture erty was acquired. cases—(i) Procedure for filing petition. If (B) The knowledge and responsibil- the forfeiture proceedings are judicial, ities of petitioner’s representative, a petition for remission or mitigation agent, or employee in paragraph of a judicial forfeiture shall be ad- (j)(5)(i)(A)(2) of this section are im- dressed to the Attorney General; shall puted to the petitioner where the rep- be sworn to by the petitioner or by the resentative, agent, or employee was petitioner’s attorney upon information acting in the course of his or her em- and belief, supported by the client’s ployment and in furtherance of the pe- sworn notice of representation pursu- titioner’s business. ant to 28 U.S.C. 1746; and shall be sub- (C) The petitioner has the burden of mitted to the United States Attorney establishing the basis for granting a for the district in which the judicial petition for remission or mitigation of forfeiture proceedings are brought. A forfeited property, a restoration of pro- petitioner also shall submit a copy of ceeds of sale or appraised value of for- the petition to the Chief Postal Inspec- feited property, or a reconsideration of tor if the Postal Inspection Service was a denial of such a petition. Failure to the seizing agency. provide information or documents and (ii) Ruling. Department of Justice to submit to interviews, as requested, regulations on petitions for remission may result in a denial of the petition. or mitigation in judicial forfeiture (D) The Ruling Official shall presume cases are stated in 29 CFR 9.4. a valid forfeiture and shall not consider (5) Criteria governing administrative re- whether the evidence is sufficient to mission and mitigation—(i) Remission. (A) support the forfeiture. The Ruling Official shall not grant re- (E) Willful, materially false state- mission of a forfeiture unless the peti- ments or information, made or fur- tioner establishes that: nished by the petitioner in support of a (1) The petitioner has a valid, good petition for remission or mitigation of faith and legally cognizable interest in forfeited property, the restoration of the seized property as owner or proceeds or appraised value of forfeited lienholder as defined in these regula- property, or the reconsideration of a tions; and denial of any such petition, shall be (2) The petitioner is innocent within grounds for denial of such petition and the meaning of the innocent owner pro- possible prosecution for the filing of visions of the applicable civil forfeiture false statements. statute, is a bona fide purchaser for (ii) Mitigation. (A) The Ruling Official value without cause to believe that the may grant mitigation to a party not property was subject to forfeiture at involved in the commission of the of- the time of the purchase, or is one who fense underlying forfeiture: held a legally cognizable interest in (1) Where the petitioner has not met the seized property at the time of the the minimum conditions for remission, violation underlying the forfeiture su- but the Ruling Official finds that some perior to that of the defendant within relief should be granted to avoid ex- the meaning of the applicable criminal treme hardship and that return of the forfeiture statute, and is thereby enti- property combined with imposition of tled to recover his or her interest in monetary and/or other conditions of

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mitigation in lieu of a complete for- the property shall be sold, and the feiture will promote the interest of jus- monetary amount imposed and other tice and will not diminish the deter- costs chargeable as a condition to miti- rent effect of the law. Extenuating cir- gation shall be subtracted from the cumstances justifying such a finding proceeds of the sale before transmit- include those circumstances that re- ting the remainder to the petitioner. duce the responsibility of the peti- (6) Special rules for specific petitioner for knowledge of the illegal ac- tioners—(i) General creditors. A general tivity, knowledge of the criminal creditor may not be granted remission record of a user of the property, or fail- or mitigation of forfeiture unless he or ure to take reasonable steps to prevent she otherwise qualifies as a petitioner the illegal use or acquisition by an- under these regulations. other for some reason, such as a rea- (ii) Rival claimants. If the beneficial sonable fear of reprisal; or owner of the forfeited property and the (2) Where the minimum standards for remission have been satisfied but the owner of a security interest in the overall circumstances are such that, in same property each file a petition, and the opinion of the Ruling Official, com- if both petitions are found to be meri- plete relief is not warranted. torious, the claim of the beneficial (B) The Ruling Official may in his or owner shall take precedence. her discretion grant mitigation to a (iii) Voluntary bailments. A petitioner party involved in the commission of who allows another to use his or her the offense underlying the forfeiture property without cost, and who is not where certain mitigating factors exist, in the business of lending money se- including, but not limited to: The lack cured by property or of leasing or rent- of a prior record or evidence of similar ing property for profit, shall be granted criminal conduct; if the violation does remission or mitigation of forfeiture in not include drug distribution, manufac- accordance with the provisions of para- turing, or importation, the fact that graph (j)(5) of this section. the violator has taken steps, such as (iv) Lessors. A person engaged in the drug treatment, to prevent further business of leasing or renting real or criminal conduct; the fact that the vio- personal property on a long-term basis lation was minimal and was not part of with the right to sublease shall not be a larger criminal scheme; the fact that entitled to remission or mitigation of a the violator has cooperated with fed- forfeiture of such property unless the eral, state, or local investigations re- lessor can demonstrate compliance lating to the criminal conduct under- with all the requirements of paragraph lying the forfeiture; or the fact that (j)(5) of this section. complete forfeiture of an asset is not (v) Straw owners. A petition by any necessary to achieve the legitimate person who has acquired a property in- purposes of forfeiture. (C) Mitigation may take the form of terest recognizable under these regula- a monetary condition or the imposition tions and who knew or had reason to of other conditions relating to the con- believe that the interest was conveyed tinued use of the property, and the re- by the previous owner for the purpose turn of the property, in addition to the of circumventing seizure, forfeiture, or imposition of any other costs that these regulations, shall be denied. A would be chargeable as a condition to petition by a person who purchases or remission. This monetary condition is owns property for another who has a considered as an item of cost payable record for related crimes as defined in by the petitioner, and shall be depos- paragraph (j)(2)(xvii) of this section, or ited into the Postal Service Fund as an a petition by a lienholder who knows amount realized from forfeiture in ac- or has reason to believe that the pur- cordance with the applicable statute. If chaser or owner of record is not the the petitioner fails to accept the Rul- real purchaser or owner, shall be de- ing Official’s mitigation decision or nied unless both the purchaser of any of its conditions, or fails to pay record and the real purchaser or owner the monetary amount within twenty meet the requirements of paragraph (20) days of the receipt of the decision, (j)(5) of this section.

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(vi) Judgment creditors. (A) A judg- ficial, the property shall be sold. Fol- ment creditor will be recognized as a lowing the sale, the proceeds shall be lienholder if: used to pay all costs of the forfeiture (1) The judgment was duly recorded and disposition of the property, in ad- before the seizure of the property for dition to any monetary conditions im- forfeiture; posed. The remaining balance shall be (2) Under applicable state or other paid to the owner. local law, the judgment constitutes a (ii) Lienholders. (A) When the for- valid lien on the property that at- feited property is to be retained for of- tached to it before the seizure of the ficial use or transferred to a state or property for forfeiture; and local law enforcement agency or for- (3) The petitioner had no knowledge eign government pursuant to law, and of the commission of any act or acts remission or mitigation has been giving rise to the forfeiture at the time granted to a lienholder, the recipient of the judgment became a lien on the for- the property shall assure that: feited property. (B) A judgment creditor will not be (1) In the case of remission, the lien recognized as a lienholder if the prop- is satisfied as determined through the erty in question is not property of petition process; or which the judgment debtor is entitled (2) In the case of mitigation, an to claim ownership under applicable amount equal to the net equity, less state or other local law (e.g., stolen any monetary conditions imposed, is property). A judgment creditor is enti- paid to the lienholder prior to the re- tled under these regulations to no more lease of the property to the recipient than the amount of the judgment, ex- agency or foreign government. clusive of any interest, costs, or other (B) When the forfeited property is not fees including attorney’s fees associ- retained for official use or transferred ated with the action that led to the to another agency or foreign country judgment or its collection. pursuant to law, the lienholder shall be (C) A judgment creditor’s lien must notified by the Ruling Official of the be registered in the district where the right to select either of the following property is located if the judgment was alternatives: obtained outside the district. (1) Return of property. The lienholder (7) Terms and conditions of remission may obtain possession of the property and mitigation—(i) Owners. (A) An own- after paying the United States, er’s interest in property that has been through the Ruling Official, the costs forfeited is represented by the property and expenses incident to the forfeiture, itself or by a monetary interest equiva- the amount, if any, by which the ap- lent to that interest at the time of sei- praised value of the property exceeds zure. Whether the property or a mone- the lienholder’s net equity in the prop- tary equivalent will be remitted to an owner shall be determined at the dis- erty, and any amount specified in the cretion of the Ruling Official. Ruling Official’s decision as a condi- (B) If a civil judicial forfeiture action tion to remit the property. The Ruling against the property is pending, release Official, at his or her discretion, may of the property must await an appro- waive costs and expenses incident to priate court order. the forfeiture. The Ruling Official shall (C) Where the government sells or forward a copy of the decision, a disposes of the property prior to the memorandum of disposition, and the grant of the remission, the owner shall original releases to the U.S. Marshals receive the proceeds of that sale, less Service or other property custodian any costs incurred by the government who shall thereafter release the prop- in the sale. The Ruling Official, at his erty to the lienholder; or or her discretion, may waive the deduc- (2) Sale of Property and Payment to tion of costs and expenses incident to Lienholder—Subject to the provisions of the forfeiture. paragraph (j)(9)(i) of this section, upon (D) Where the owner does not comply sale of the property, the lienholder with the conditions imposed upon re- may receive the payment of a mone- lease of the property by the Ruling Of- tary amount up to the sum of the

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lienholder’s net equity, less the ex- like those of any other owners, shall penses and costs incident to the for- have priority over the claims of any feiture and sale of the property, and non-owner victims whose claims are any other monetary conditions im- recognized pursuant to this section. posed. The Ruling Official, at his or her (i) Qualifications to file. A victim, as discretion, may waive costs and ex- defined in paragraph (j)(2)(xxi) of this penses incident to the forfeiture. section, of an offense that was the un- (iii) If the lienholder does not notify derlying basis for the criminal, civil, or the Ruling Official of the selection of administrative forfeiture of specific one of the two options set forth above property, or a victim of a related of- in paragraph (j)(7)(ii)(B) of this section fense, may be granted remission of the within twenty (20) days of the receipt forfeiture of that property, if in addi- of such notification, the Ruling Official tion to complying with the other appli- shall direct the U.S. Marshal or other cable provisions of this section, the property custodian to sell the property victim satisfactorily demonstrates and pay the lienholder an amount up to the net equity, less the costs and ex- that: penses incurred incident to the for- (A) A pecuniary loss of a specific feiture and sale, and any monetary amount has been directly caused by the conditions imposed. In the event a criminal offense, or related offense, lienholder subsequently receives a pay- that resulted in the forfeiture, or by a ment of any kind on the debt owed for related offense, and that the loss is which he or she has already received supported by documentary evidence in- payment as a result of the granting of cluding invoices and receipts; remission or mitigation, the lienholder (B) The pecuniary loss is the direct shall reimburse the Postal Service result of the illegal acts and is not the Fund to the extent of the payment re- result of otherwise lawful acts which ceived. were committed in the course of a (iv) Where the lienholder does not criminal offense; comply with the conditions imposed (C) The victim did not knowingly upon the release of the property, the contribute to, participate in, benefit property shall be sold after forfeiture. from, or act in a willfully blind manner From the proceeds of the sale, all costs towards the commission of the offense, incident to the forfeiture and sale shall or related offense, that was the under- first be deducted, and the balance up to lying basis of the forfeiture; the net equity, less any monetary con- (D) The victim has not in fact been ditions, shall be paid to the lienholder. compensated for the wrongful loss of (8) Provisions applicable to victims. The the property by the perpetrator or oth- provisions of this section apply to vic- ers; and tims of an offense underlying the for- (E) The victim does not have re- feiture of property, or of a related of- course reasonably available to other fense, who do not have a present own- assets from which to obtain compensa- ership interest in the forfeited property tion for the wrongful loss of the prop- (or, in the case of multiple victims of an offense, who do not have a present erty. ownership interest in the forfeited (ii) Pecuniary loss. The amount of the property that is clearly superior to pecuniary loss suffered by a victim for that of other petitioner victims). The which remission may be granted is lim- provisions of this section apply only ited to the fair market value of the with respect to property forfeited pur- property of which the petitioner was suant to statutes that explicitly au- deprived as of the date of the occur- thorize restoration or remission of for- rence of the loss. No allowance shall be feited property to victims. Victims who made for interest foregone or for col- have a superior present legally cog- lateral expenses incurred to recover nizable ownership interest in forfeited lost property or to seek other rec- property may file petitions as other ompense. owners, subject to the regulations set (iii) Torts. A tort associated with ille- forth in paragraph (j)(7)(i) of this sec- gal activity that formed the basis for tion. The claims of such owner victims, the forfeiture shall not be a basis for

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remission, unless it constitutes the il- property forfeitable under 18 U.S.C. legal activity itself, nor shall remis- 981(a)(1)(C) or (a)(1)(D), the Ruling Offi- sion be granted for physical injuries to cial may decline to grant a petition a petitioner or for damage to a peti- filed by a petitioner in whole or in part tioner’s property. due to the lack of sufficient forfeitable (iv) Denial of petition. In the exercise funds to satisfy both the petition and of his or her discretion, the Ruling Of- claims of the financial institution reg- ficial may decline to grant remission ulatory agencies pursuant to 18 U.S.C. where: 981 (e)(3) or (7). Generally, claims of fi- (A) There is substantial difficulty in nancial regulatory agencies pursuant calculating the pecuniary loss incurred to 18 U.S.C. 981(e)(3) or (7) shall take by the victim or victims; priority over claims of victims. (B) The amount of the remission, if (9) Miscellaneous Provisions—(i) Pri- granted, would be small compared with ority of payment. Except where other- the amount of expenses incurred by the wise provided in this section, costs in- government in determining whether to curred by the Postal Inspection Service grant remission; or and other agencies participating in the (C) The total number of victims is forfeiture that were incident to the for- large and the monetary amount of the feiture, sale, or other disposition of the remission so small as to make its property shall be deducted from the granting impractical. amount available for remission or (v) Pro rata basis. In granting remis- mitigation. Such costs include, but are sion to multiple victims pursuant to not limited to, court costs, storage this section, the Ruling Official should costs, brokerage and other sales-re- generally grant remission on a pro rata lated costs, the amount of any liens basis to recognized victims when peti- and associated costs paid by the gov- tions cannot be granted in full due to ernment on the property, costs in- the limited value of the forfeited prop- curred in paying the ordinary and nec- erty. However, the Ruling Official may essary expenses of a business seized for consider, among others, the following forfeiture, awards for information as factors in establishing appropriate pri- authorized by statute, expenses of orities in individual cases: trustees or other assistants pursuant (A) The specificity and reliability of to paragraph (j)(9)(iii) of this section, the evidence establishing a loss; investigative or prosecutive costs spe- (B) The fact that a particular victim cially incurred incident to the par- is suffering an extreme financial hard- ticular forfeiture, and costs incurred ship; incident to the processing of the peti- (C) The fact that a particular victim tion(s) for remission or mitigation. The has cooperated with the government in remaining balance shall be available the investigation related to the for- for remission or mitigation. The Rul- feiture or to a related prosecution or ing Official shall direct the distribu- civil action; and tion of the remaining balance in the (D) In the case of petitions filed by following order of priority, except that multiple victims of related offenses, the fact that a particular victim is a he or she may exercise discretion in de- victim of the offense underlying the termining the priority between peti- forfeiture. tioners belonging to classes described (vi) Reimbursement. Any petitioner in paragraphs (j)(9)(iii) and (9)(iv) of granted remission pursuant to this sec- this section in exceptional cir- tion shall reimburse the Postal Service cumstances: Fund for the amount received to the (A) Owners; extent the individual later receives (B) Lienholders; compensation for the loss of the prop- (C) Federal financial institution reg- erty from any other source. The peti- ulatory agencies (pursuant to para- tioner shall surrender the reimburse- graph (j)(9)(vi) of this section, not con- ment upon payment from any sec- stituting owners or lienholders); and ondary source. (D) Victims not constituting owners (vii) Claims of financial institution reg- or lienholders (pursuant to paragraph ulatory agencies. In cases involving (j)(8) of this section).

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(ii) Sale or disposition of property prior written request, in lieu of ruling on a to ruling. If forfeited property has been petition for remission or mitigation. sold or otherwise disposed of prior to a (vi) Transfers to foreign governments. A ruling, the Ruling Official may grant Ruling Official may decline to grant relief in the form of a monetary remission to any petitioner other than amount. The amount realized by the an owner or lienholder so that forfeited sale of the property is presumed to be assets may be transferred to a foreign the value of the property. Monetary re- government pursuant to 18 U.S.C. lief shall not be greater than the ap- 981(i)(1), 19 U.S.C. 1616a(c)(2), or 21 praised value of the property at the U.S.C. 881(e)(1)(E). time of seizure and shall not exceed the (vii) Filing by attorneys. (A) A petition amount realized from the sale or other for remission or mitigation may be disposition. The proceeds of the sale filed by a petitioner or by his or her at- shall be distributed as follows: torney or legal guardian. If an attorney (A) Payment of the government’s ex- files on behalf of the petitioner, the pe- penses incurred incident to the for- tition must include a signed and sworn feiture and sale, including court costs statement by the client-petitioner and storage charges, if any; stating that: (B) Payment to the petitioner of an (1) The attorney has the authority to amount up to his or her interest in the represent the petitioner in this pro- property; ceeding; (C) Payment to the Postal Service (2) The petitioner has fully reviewed Fund of all other costs and expenses in- the petition; and cident to the forfeiture; (3) The petition is truthful and accu- (D) In the case of victims, payment of rate in every respect. any amount up to the amount of his or (B) Verbal notification of representa- her loss; and tion is not acceptable. Responses and (E) Payment of the balance remain- notification of rulings shall not be sent ing, if any, to the Postal Service Fund. to an attorney claiming to represent a (iii) Trustees and other assistants. In petitioner unless a written notice of the exercise of his or her discretion, representation is filed. No extensions the Ruling Official may use the serv- of time shall be granted due to delays ices of a trustee, other government of- in submission of the notice of represen- ficial, or appointed contractors to notation. tify potential petitioners, process peti- (viii) Consolidated petitions. At the tions, and make recommendations to discretion of the Ruling Official in in- the Ruling Official on the distribution dividual cases, a petition may be filed of property to petitioners. The expense by one petitioner on behalf of other pe- for such assistance shall be paid out of titioners, provided the petitions are the forfeited funds. based on similar underlying facts, and (iv) Other agencies of the United States. the petitioner who files the petition Where another agency of the United has written authority to do so on be- States is entitled to remission or miti- half of the other petitioners. This au- gation of forfeited assets because of an thority must be either expressed in interest that is recognizable under documents giving the petitioner the these regulations, or is eligible for such authority to file petitions for remis- transfer pursuant to 18 U.S.C. 981(e)(6), sion, or reasonably implied from docu- such agency shall request the transfer ments giving the petitioner express au- in writing, in addition to complying thority to file claims or lawsuits re- with the provisions of paragraphs (j)(3) lated to the course of conduct in ques- through (5) of this section. The deci- tion on behalf of these other peti- sion to make such transfer shall be tioners. An insurer or an administrator made in writing by the Ruling Official. of an employee benefit plan, for exam- (v) Financial institution regulatory ple, which itself has standing to file a agencies. A Ruling Official may direct petition as a ‘‘victim’’ within the mean- the transfer of property under 18 U.S.C. ing of paragraph (j)(2)(xxi) of this sec- 981(e) to certain federal financial insti- tion, may also file a petition on behalf tution regulatory agencies or an entity of all its insured or plan beneficiaries acting in their behalf, upon receipt of a for any claims they may have based on

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co-payments made to the perpetrator (5) Personal Use Quantities means pos- of the offense underlying the forfeiture session of a controlled substance in cir- or the perpetrator of a ‘‘related offense’’ cumstances where there is not other within the meaning of paragraph evidence of an intent to distribute, or (j)(2)(xviii) of this section, if the au- to facilitate the manufacturing, thority to file claims or lawsuits is compounding, processing, delivering, contained in the document or docu- importing, or exporting of any con- ments establishing the plan. Where trolled substance. Evidence of personal such a petition is filed, any amounts use quantities does not include granted as a remission must be trans- sweepings or other evidence of posses- ferred to the other petitioners, not the sion of quantities of a controlled sub- party filing the petition; although, in stance for other than personal use. his or her discretion, the Ruling Offi- (i) Such other evidence includes: cial may use the actual petitioner as (A) Evidence, such as drug scales, an intermediary for transferring the drug distribution paraphernalia, drug amounts authorized as a remission to records, drug packaging material, the other petitioners. method of drug packaging, drug ‘‘cut- [52 FR 4497, Feb. 12, 1987; 52 FR 5765, Feb. 26, ting’’ agents and other equipment, that 1987, as amended at 54 FR 47520, Nov. 15, 1989; indicates an intent to process, package 56 FR 20361, May 3, 1991; 57 FR 32726, July 23, or distribute a controlled substance; 1992; 59 FR 31154, June 17, 1994; 59 FR 35852, (B) Information from reliable sources July 14, 1994; 60 FR 5581, Jan. 30, 1995; 60 FR indicating possession of a controlled 8306, Feb. 14, 1995; 62 FR 31726, June 11, 1997; substance with intent to distribute; 72 FR 39012, July 17, 2007] (C) The arrest and/or conviction § 233.8 Expedited forfeiture pro- record of the person or persons in ac- ceedings for property seized for ad- tual or constructive possession of the ministrative forfeiture involving controlled substance for offenses under controlled substances in personal Federal, State or local law that indi- use quantities. cates an intent to distribute a con- (a) Definitions. As used in this sec- trolled substance; tion, the following terms have the (D) Relationship of the controlled meanings specified: substance to large amounts of cash or (1) Appraised Value means the esti- any amount of prerecorded government mated domestic price at the time of funds; seizure at which such or similar prop- (E) Possession of the controlled sub- erty is freely offered for sale. stance under circumstances that indi- (2) Controlled Substance has the mean- cate the substance is a sample intended ing given in 21 U.S.C. 802. for distribution in anticipation of a (3) Legal and Factual Basis of the Sei- transaction involving large quantities, zure means a statement of the applica- or is part of a larger delivery; or ble law under which the property is (F) Statements by the possessor, or seized, and a written statement of the otherwise attributable to the pos- circumstances of the seizure suffi- sessor, including statements of con- ciently precise to enable an owner or spirators, that indicate possession with other interested party to identify the intent to distribute. date, place, and use or acquisition (ii) Possession of a controlled sub- which makes the property subject to stance is presumed to be for personal forfeiture. use when there are no indicia of illicit (4) Owner means one having a legal drug trafficking or distribution such and possessory interest in the property as, but not limited to, the factors list- seized for forfeiture. Even though one ed in § 233.8(a)(5)(i), and the amounts do may hold primary and direct title to not exceed the following quantities: the property seized, such person may (A) One gram of a mixture of sub- not have sufficient actual beneficial instance containing a detectable amount terest in the property to support a pe- of heroin; tition as owner if the facts indicate (B) One gram of a mixture or sub- that another person had dominion and stance containing a detectable amount control over the property. of:

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(1) Coca leaves, except coca leaves (2) The owner filing the petition for and extracts of coca leaves from which expedited release must establish the cocaine, ecgonine, and derivations of following: ecgonine or their salts have been re- (i) The owner has a valid, good faith moved; interest in the seized property as owner (2) Cocaine, its salts, optical and geo- or otherwise; metric isomers, and salts of isomers; (ii) The owner reasonably attempted (3) Ecgonine, its derivatives, their to ascertain the use of the property in salts, isomers, and salts of isomers; or a normal and customary manner; and (4) Any compound, mixture or prepa- (iii) The owner did not know or con- ration which contains any quantity of sent to the illegal use of the property, any of the substances referred to in or in the event that the owner knew or § 233.8(a)(5) (ii)(B)(1)–(3); should have known of the illegal use, (5) 1⁄10th gram of a mixture or sub- the owner did what reasonably could be stance described in § 233.8(a)(5)(ii) expected to prevent the violation. which contains cocaine base; (3) In addition to those factors listed (6) 1⁄10 gram of a mixture or substance in § 233.8(b)(2), if an owner can dem- containing a detectable amount of onstrate that he has other statutory phencyclidine (PCP); rights or defenses that would cause (7) 500 micrograms of a mixture or him to prevail on the issue of for- substance containing a detectable feiture, such factors must also be con- amount of lysergic acid diethylamide sidered in ruling on the petition for ex- (LSD); pedited release. (8) One ounce of a mixture of sub- (4) A petition for expedited release stance containing a detectable amount must be: of marihuana; (i) Filed in a timely manner to be (9) One gram of methamphetamine, considered; in order to be filed in a its salts, isomers, and salts of its iso- timely manner, the petition must be mers, or one gram of a mixture or sub- received by the Postal Inspection Serv- stance containing a detectable amount ice within 20 days from the date of the of methamphetamine, its salts, iso- first publication of the notice of sei- mers, or salts of its isomer. zure. (iii) The possession of a narcotic, a (ii) Executed and sworn to by the depressant, a stimulant, a hallucinogen owner and both the envelope and the or cannabis-controlled substance will request must be clearly marked ‘‘PE- be considered in excess of personal use TITION FOR EXPEDITED RELEASE’’; quantities if the dosage unit amount (iii) Filed in accordance with the no- possessed provides the same or greater tice of seizure; and equivalent efficacy as described in (iv) Addressed to the Chief Postal In- § 233.8(a)(5)(ii). spector, Postal Inspection Service. (6) Property means property subject (5) The petition must include the fol- to forfeiture under title 21, U.S.C., Sec- lowing: tions 881(a)(4), (6), and (7). (i) A complete description of the (7) Statutory Rights or Defenses to the property, including identification num- Forfeiture means all legal and equitable bers, if any, and the date and place of rights and remedies available to a seizure; claimant of property seized for for- (ii) The petitioner’s interest in the feiture. property, which must be supported by (8) Sworn to as used in § 233.8(b)(4)(ii) title documentation, bills of sale, con- refers to the oath as provided by 28 tracts, mortgages, or other satisfac- U.S.C. 1746. tory documentary evidence; and (b) Petition for expedited release in an (iii) A statement of the facts and cir- administrative forfeiture action. (1) cumstances, to be established by satis- Where property is seized for adminis- factory proof, relied upon by the peti- trative forfeiture involving controlled tioner to justify expedited release of substances in personal use quantities, the seized property. the owner may petition the Postal In- (c) Ruling on petition for expedited re- spection Service for expedited release lease in an administrative forfeiture ac- of the property. tion involving personal use quantities of a

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controlled substance. (1) Upon receipt of will forfeit the substitute res in lieu of a petition for expedited release filed the property. pursuant to § 233.8(b), the Postal In- [54 FR 47520, Nov. 15, 1989] spection Service must determine first whether a final administrative deter- § 233.9 Expedited release of convey- mination of the case, without regard to ances being forfeited in a judicial the provisions of this section, can be forfeiture proceeding for a drug-re- made within 21 days of the seizure. If lated offense. such a final administrative determina- (a) Petition for expedited release of con- tion is made within 21 days, no further veyance. Where a conveyance has been action need be taken under this sec- seized and is being forfeited in a judi- tion. cial proceeding for a drug-related of- (2) If no such final administrative defense, the owner may petition the termination is made within 21 days of United States Attorney for an expe- the seizure, the following procedure ap- dited release of the conveyance in ac- plies: cordance with the regulations of the (i) The Postal Inspection Service, Department of Justice (21 CFR part within 20 days after the receipt of the 1316). petition for expedited release, deter- (b) Petition filed in timely manner. A mines whether the petition filed by the petition for expedited release must be owner has established the factors listed filed in a timely manner in order to be in § 233.8(b)(2); and considered by the United States Attor- (ii) If the Postal Inspection Service ney. To be considered as filed in a determines that those factors have timely manner, in accordance with 21 been established, it terminates the ad- CFR part 1316, the petition must be re- ministrative proceedings and returns ceived by the appropriate United the property to the owner except where States Attorney within 20 days from it is evidence of a violation of law; or the date of the first publication of the (iii) If the Postal Inspection Service notice of the action and arrest of the determines that those factors have not property, or within 30 days after filing been established, it proceeds with the of the claim, whichever occurs later. administrative forfeiture. (c) Obtaining release of the property by (d) Posting of substitute res. (1) Where filing a substitute res bond. Where a con- property is seized for administrative veyance is being forfeited in a judicial forfeiture involving controlled sub- proceeding for a drug-related offense, stances in personal use quantities, the the owner may obtain release of the owner may obtain release of the prop- property by filing a substitute res bond erty by posting a substitute res with with the Postal Inspection Service. The the Postal Service. The property will conveyance will be released to the be released to the owner upon the pay- owner upon the payment of a bond in ment of an amount equal to the ap- the amount of the appraised value of praised value of the property if it is not the conveyance if it is not evidence of evidence of a violation of law or has de- a violation of law or has design or sign or other characteristics that par- other characteristics that particularly ticularly suit it for use in illegal ac- suit it for use in illegal activities. This tivities. This payment must be in the bond must be in the form of a trav- form of a traveler’s check, a money eler’s check, a money order, a cashier’s order, a cashier’s check or an irrev- check or an irrevocable letter of credit ocable letter of credit made payable to made payable to the United States the Postal Service. A bond in the form Postal Service. A bond in the form of a of a cashier’s check will be considered cashier’s check will be considered as as paid once the check has been accept- paid once the check has been accepted ed for payment by the financial insti- for payment by the financial institu- tution which issued the check. tion which issued the check. (2) If a substitute res is posted and (d) Forfeiture of the bond. If a sub- the property is administratively for- stitute res bond is filed and the convey- feited, the Postal Inspection Service ance is judicially forfeited, the court

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will forfeit the bond in lieu of the prop- (3) The Chief Postal Inspector may erty. authorize screening of mail by postal employees and by persons not em- [54 FR 47522, Nov. 15, 1989] ployed by the Postal Service under § 233.10 Notice provisions. such instruction that require compliance with this part and protect the se- (a) Special notice provision. At the curity of the mail. No information ob- time of seizure of property defined in tained from such screening may be dis- § 233.8(b) for violations involving the closed unless authorized by this part. possession of personal use quantities of (4) Mail of insufficient weight to pose a controlled substance, written notice a hazard to air or surface transpor- will be provided to the possessor of the tation, or to contain firearms which property regarding applicable statutes are not mailable under Section C024 of and Federal regulations including the procedures established for the filing of the Domestic Mail Manual, and inter- a petition for expedited release and for national transit mail must be excluded the posting of a substitute res bond. from such screening. (b) Standard notice provision. The (5) After screening conducted under standard notice to the owner as re- paragraph (a) of this section, mail that quired by 19 U.S.C. 1607 will be made at is reasonably suspected of posing an the earliest practicable opportunity immediate and substantial danger to after determining ownership of the life or limb, or an immediate and sub- seized property and must include the stantial danger to property, may be legal and factual basis of the seizure. treated by postal employees as provided in paragraph (b) of this section. [54 FR 47522, Nov. 15, 1989] (6) After screening, mail sealed against inspection that presents doubts § 233.11 Mail reasonably suspected of being dangerous to persons or about whether its contents are haz- property. ardous, that cannot be resolved without opening, must be reported to the (a) Screening of mail. When the Chief Postal Inspection Service. Such mail Postal Inspector determines that there must be disposed of under instructions is a credible threat that certain mail promptly furnished by the Inspection may contain a bomb, explosives, or Service. other material that would endanger (b) Threatening pieces of mail. Mail, life or property, including firearms which are not mailable under Section sealed or unsealed, reasonably sus- C024 of the Domestic Mail Manual, the pected of posing an immediate danger Chief Postal Inspector may, without a to life or limb or an immediate and search warrant or the sender’s or ad- substantial danger to property may, dressee’s consent, authorize the screen- without a search warrant, be detained, ing of such mail by any means capable opened, removed from postal custody, of identifying explosives, nonmailable and processed or treated, but only to firearms, or other dangerous contents the extent necessary to determine and in the mails. The screening must be eliminate the danger and only if a com- within the limits of this section and plete written and sworn statement of without opening mail that is sealed the detention, opening, removal, or against inspection or revealing the treatment, and the circumstances that contents of correspondence within mail prompted it, signed by the person pur- that is sealed against inspection. The porting to act under this section, is screening is conducted according to promptly forwarded to the Chief Postal these requirements. Inspector. (1) Screening of mail authorized by (c) Reports. Any person purporting to paragraph (a) of this section must be act under this section who does not re- limited to the least quantity of mail port his or her action to the Chief necessary to respond to the threat. Postal Inspector under the require- (2) Such screening must be done in a ments of this section, or whose action manner that does not avoidably delay is determined after investigation not the screened mail. to have been authorized, is subject to

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disciplinary action or criminal pros- § 235.1 Postal Service to the Armed ecution or both. Forces. [61 FR 28060, June 4, 1996] (a) Publication 38, Postal Agreement with the Department of Defense, de- § 233.12 Civil penalties. fines the Postal Service’s responsibil- False representation and lottery orities for providing postal service to the ders— Armed Forces. (b) The Chief Inspector is responsible (a) Issuance. Pursuant to 39 U.S.C. for military liaison. 3005, the Judicial Officer of the Postal (c) Postal inspectors provide liaison Service, acting upon a satisfactory evi- between postmasters and military com- dentiary basis, may issue a mail return manders, visit military installations as and/or a cease and desist order against required, and make any necessary rec- anyone engaged in conducting a ommendations. scheme or device for obtaining money or property through the mail by means (39 U.S.C. 401(2), 402, 403, 404, as enacted by of a false representation, including the Pub. L. 91–375, 84 Stat. 719) mailing of matter which is non- [38 FR 26193, Sept. 9, 1973] mailable, or engaged in conducting a lottery, gift enterprise, or scheme for § 235.2 Civil preparedness. the distribution of money or of real or (a) Mission. The prime objective of personal property, by lottery, chance, postal emergency preparedness plan- or drawing of any kind. ning is to maintain or restore essential (b) Enforcement. Pursuant to 39 U.S.C. postal service in a national emergency, 3012, any person: natural disaster, or disruptive domes- (1) Who, through the use of the mail, tic crisis. evades or attempts to evade the effect (b) Emergency Coordinator. The Chief of an order issued under 39 U.S.C. Inspector is designated Emergency Co- 3005(a)(1) or 3005(a)(2); ordinator for the Postal Service. As (2) Who fails to comply with an order Emergency Coordinator, he provides issued under 39 U.S.C. 3005(a)(3); or general direction and coordination of (3) Who (other than a publisher de- the following programs: scribed by 39 U.S.C. 3007(b)) has actual (1) National Civil Preparedness and knowledge of any such order, is in priv- Defense Mobilization; ity with any person described by para- (2) Natural Disaster Preparedness; graph (b) (1) or (2) of this section, and (3) Emergency Response to Disrup- engages in conduct to assist any such tive Domestic Crisis. person to evade, attempt to evade, or (c) Regional Emergency Coordinator. fail to comply with such order, as the The Chief Inspector may delegate au- case may be, through the use of the thority to Regional Chief Postal In- mail; spectors, or others, for the function of Shall be liable to the United States for Regional Emergency Coordinator and a civil penalty in an amount not to ex- the general direction and coordination ceed $11,000 for each day that such per- of all such programs within the Postal son engages in conduct described by Regions, as are conducted by him at this paragraph (b). A separate penalty the National level. may be assessed under this paragraph (d) Postmaster General emergency line (b) with respect to the conduct de- of succession. (1) Deputy Postmaster scribed by paragraphs (b) (1), (2), or (3) General; (2) Senior Assistant Post- of this section. master General, Administration; (3) Senior Assistant Postmaster General, [61 FR 56450, Nov. 1, 1996] Operations. (e) Headquarters and field lines of suc- PART 235—DEFENSE DEPARTMENT cession. Each Headquarters organiza- LIAISON tional unit shall establish its own internal line of succession to provide for Sec. continuity under emergency condi- 235.1 Postal Service to the Armed Forces. tions. Each Regional Postmaster Gen- 235.2 Civil preparedness. eral, Regional Chief Inspector, Postal

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Data Center Director, Inspector in Postmaster General based on the al- Charge, and postmaster at first-class lowable postal revenue units for the post offices shall prepare a succession second preceding fiscal year as follows: list of officials who will act in his stead (1) First Class. Post offices having 950 in the event he is incapacitated or ab- or more revenue units. sent in an emergency. Orders of succes- (2) Second Class. Post offices having sion shall be shown by position titles, 190 but less than 950 revenue units. except those of the Inspection Service (3) Third Class. Post offices having 36 may be shown by names. but less 190 revenue units. (f) Field responsibilities. Postmasters (4) Fourth Class. Post offices having and heads of other installations shall: less than 36 revenue units. (1) Carry out civil preparedness as- (39 U.S.C. 401) signments, programs, etc., as directed by regional officials. [36 FR 4764, Mar. 12, 1971, as amended at 42 FR 59082, Nov. 15, 1977] (2) Comply with, and cooperate in community civil preparedness plans § 241.2 Stations and branches. (including exercise) for evacuation, (a) Description. (1) Stations are estab- take cover and other survival measures lished within the corporate limits or prescribed for local populations. boundary, and branches are established (3) Designate representatives for con- outside the corporate limits or bound- tinuing liaison with local civil pre- ary of the city, town, or village in paredness organizations where such ac- which the main post office is located. tivity will not interfere with normal Stations and branches may be des- duties. ignated by number, letter or name. As (4) Endeavor to serve (at their own a general rule, branches are named. option) as members on the staff of the (2) Stations and branches transact local civil preparedness director, pro- registry and money order business, sell vided such service will not interfere postage supplies, and accept matter for with their primary postal responsi- mailing. Delivery service, post office bility in an emergency. boxes, and other services may be pro- (5) Authorize and encourage their vided when directed by the postmaster. employees to participate voluntarily in (3) Stations and branches, except nonpostal pre-emergency training pro- nonpersonnel rural stations and grams and exercises in cooperation branches, are designated as inde- with States and localities. pendent when registered and other (39 U.S.C. 401(2), 402, 403, 404, as enacted by mail is received or dispatched without Pub. L. 91–375, 84 Stat. 719) passing through the main office. (b) Classification—(1) Classified. Oper- [38 FR 26193, Sept. 9, 1973] ated by postal employees in quarters provided by the Federal Government. Post Office Organization and (2) Contract. Operated under contract Administration by persons who are not Federal Gov- ernment employees. Persons operating PART 241—ESTABLISHMENT CLASSI- contract stations and branches are FICATION, AND DISCONTINU- independent contractors and neither ANCE the contractors nor any person employed by them to assist in the conduct Sec. of contract stations or branches shall 241.1 Post offices. be employees of the Federal Govern- 241.2 Stations and branches. ment for any purpose whatsoever. 241.3 Discontinuance of post offices. 241.4 Expansion, relocation, and construc- (39 U.S.C. 401) tion of post offices. [36 FR 4764, Mar. 12, 1971]

§ 241.1 Post offices. § 241.3 Discontinuance of post offices. (a) Establishment. See § 113.1 of this (a) Introduction—(1) Coverage. This chapter. section establishes the rules governing (b) Classification. As of July 1 each the Postal Service’s consideration of year, post offices are classified by the whether an existing post office should

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be discontinued. The rules cover any (ii) After public comments are re- proposal to replace a post office with a ceived and taken into account, any community post office, station or final determination to close or consoli- branch, consolidation with another date a post office must be made in post office, and any proposal to dis- writing and must include findings cov- continue a post office without pro- ering all the required considerations. viding a replacement facility. (iii) The written determination must (2) Legal requirements. Under 39 U.S.C. be made available to persons served by 404(b), any decision to close or consoli- the post office at least 60 days before date a post office must be based on cer- the discontinuance takes effect. tain criteria. These include the effect (iv) Within the first 30 days after the on the community served; the effect on written determination is made avail- employees of the post office; compli- able, any person regularly served by ance with government policy estab- the affected post office may appeal the lished by law that the Postal Service decision to the Postal Rate Commis- must provide a maximum degree of ef- sion. fective and regular postal services to rural areas, communities, and small (v) The Commission may only affirm towns where post offices are not self- the Postal Service determination or re- sustaining; the economic savings to the turn the matter for further consider- Postal Service; and any other factors ation but may not modify the deter- the Postal Service determines nec- mination. essary. In addition, certain mandatory (vi) The Commission is required by 39 procedures apply as follows: U.S.C. 404(b)(5) to make a determina- (i) The public must be given 60 days’ tion on the appeal no later than 120 notice of a proposed action to enable days after receiving the appeal. the persons served by a post office to (vii) The following is a summary evaluate the proposal and provide com- table of the notice and appeal periods ments. under the statute for these regulations.

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(3) Additional requirements. This sec- kept, wherever practical. In some tion also includes: cases, the ZIP Code originally assigned (i) Rules to ensure that the commu- to the discontinued post office may be nity’s identity as a postal address is changed if the responsible district preserved. manager, Customer Service and Sales, (ii) Rules for consideration of a pro- submits a request with justification to posed discontinuance and for its imple- his or her vice president, Area Oper- mentation, if approved. These rules are ations, before the proposal to dis- designed to ensure that the reasons continue the post office is posted. leading a district manager, Customer (i) In a consolidation, the ZIP Code Service and Sales, to propose the dis- for the replacement community post continuance of a particular post office office, station, or branch is the ZIP are fully articulated and disclosed at a Code originally assigned to the discon- stage that enables customer participa- tinued post office. tion to make a helpful contribution to- (ii) If the ZIP Code is changed and ward the final decision. the parent post office covers several (b) Preservation of community address— ZIP Codes, the ZIP Code must be that (1) Policy. The Postal Service permits of the delivery area within which the the use of a community’s separate ad- facility is located. dress to the extent practicable. (3) Post office name in address. If all (2) ZIP Code assignment. The ZIP Code the delivery addresses using the name for each address formerly served from of the post office to be discontinued are the discontinued post office should be assigned the same ZIP Code, customers

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may continue to use the discontinued written comments and suggestions as post office name in their addresses, in- part of the record when the proposal is stead of the new delivering post office reviewed. name. (4) Preparation of written proposal. The (4) Name of facility established by con- district manager, Customer Service solidation. If a post office to be discon- and Sales, must gather and preserve for tinued is consolidated with one or more the record all documentation used to other post offices by establishing in its assess the proposed change. If the man- place a community post office, classi- ager thinks the proposed action is war- fied or contract station, or branch af- ranted, he or she must prepare a docu- filiated with another post office in- ment titled ‘‘Proposal to (Close) (Con- volved in the consolidation, the re- solidate) the (Name) Post Office.’’ This placement unit is given the same name document must describe, analyze, and of the discontinued post office. justify in sufficient detail to Postal (5) List of discontinued post offices. Service management and affected cus- Publication 65, National Five-Digit ZIP tomers the proposed service change. Code and Post Office Directory, lists The written proposal must address all post offices discontinued after each of the following matters in sepa- March 14, 1977, for mailing address pur- rate sections: poses only if they are used in address- (i) Responsiveness to community postal es. The ZIP Codes listed for discon- needs. It is the policy of the Govern- tinued offices are those assigned under ment, as established by law, that the this subsection. Postal Service will provide a maximum (c) Initial proposal—(1) In general. If a degree of effective and regular postal district manager, Customer Service services to rural areas, communities, and Sales, believes that the discontinu- and small towns where post offices are ance of a post office within his or her not self-sustaining. The proposal responsibility may be warranted, the should (A) contrast the services avail- manager: able before and after the proposed (i) Must use the standards and proce- change; (B) describe how the changes dures in § 241.3 (c) and (d). respond to the postal needs of the af- (ii) Must investigate the situation. fected customers; and (C) highlight (iii) May propose the post office be particular aspects of customer service discontinued. that might be less advantageous as (2) Consolidation. The proposed action well as more advantageous. may include a consolidation of post offices to substitute a community post (ii) Effect on community. The proposal office or a classified or contract sta- must include an analysis of the effect tion or branch for the discontinued the proposed discontinuance might post office if: have on the community served, and (i) The communities served by two or discuss the application of the require- more post offices are being merged into ments in § 241.3(b). a single incorporated village, town, or (iii) Effect on employees. The written city; or proposal must summarize the possible (ii) A replacement facility is nec- effects of the change on the post- essary for regular and effective service master, supervisors, and other employ- to the area served by the post office ees of the post office considered for dis- considered for discontinuance. continuance. (The district manager, (3) Views of postmasters. Whether the Customer Service and Sales, must sug- discontinuance under consideration in- gest measures to comply with per- volves a consolidation or not, the dis- sonnel regulations related to post of- trict manager, Customer Service and fice discontinuance and consolidation.) Sales, must discuss the matter with (iv) Savings. The proposal must in- the postmaster (or the officer in clude an analysis of the economic sav- charge) of the post office considered for ings to the Postal Service from the discontinuance, and with the post- proposed action, including the cost or master of any other post office affected savings expected from each major fac- by the change. The manager should tor contributing to the overall esti- make sure that these officials submit mate.

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(v) Other factors. The proposal should customers may appeal that decision to include an analysis of other factors the Postal Rate Commission. Any such that the district manager, Customer appeal must be received by the Com- Service and Sales, determines are nec- mission within 30 days of the posting of essary for a complete evaluation of the the final determination. proposed change, whether favorable or (d) Notice, public comment, and unfavorable. record—(1) Posting proposal and comment (vi) Summary. The proposal must in- notice. A copy of the written proposal clude a summary that explains why the and a signed invitation for comments proposed action is necessary, and as- must be posted prominently in each af- sesses how the factors supporting the fected post office. The invitation for proposed change outweigh any negative comments must: factors. In taking competing consider- (i) Ask interested persons to provide ations into account, the need to pro- written comments within 60 days, to a vide regular and effective service is stated address, offering specific opin- paramount. ions and information, favorable or un- (vii) Notice. The proposal must in- favorable, on the potential effect of the clude the following notice: ‘‘This Is A proposed change on postal services and Proposal. It Is Not A Final Determina- the community. tion To (Close) (Consolidate) This Post (ii) State that copies of the proposal Office.’’ with attached optional comment forms (A) If a final determination is made are available in the affected post of- to close or consolidate this post office, fices. after public comments on this proposal (iii) Provide a name and telephone are received and taken into account, a number to call for information. notice of that final determination must (2) Proposal and comment notice. The be posted in this post office. following is a sample format that may (B) The final determination must be used for the proposal and comment contain instructions on how affected notice.

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(3) Other steps. In addition to pro- (i) If oral contacts develop views or viding notice and inviting comment, information not previously docu- the district manager, Customer Service mented, whether favorable or unfavor- and Sales, must take any other steps able to the proposal, the district man- necessary to ensure that the persons ager, Customer Service and Sales, served by the affected post office un- should encourage persons offering the derstand the nature and implications views or information to provide writ- of the proposed action (e.g., meeting ten comments to preserve them for the with community groups and following record. up on comments received that seem to (ii) As a factor in making his or her be based on incorrect assumptions or decision, the district manager, Cus- information). tomer Service and Sales, may not rely

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on communications received from any- to the extent possible how many com- one unless submitted in writing for the ments support each point listed. record. (2) Re-evaluation of proposal. After (4) Record. The district manager, Cus- completing the analysis, the district tomer Service and Sales, must keep as manager, Customer Service and Sales, part of the record for his or her consid- must review the proposal and re-evalu- eration and for review by the vice ate all the tentative conclusions pre- president, Delivery and Retail, all the viously made in light of additional cus- documentation gathered about the pro- tomer information and views in the posed change. record. (i) The record must include all infor- (i) Discontinuance not warranted. If mation that the district manager, Cus- the district manager, Customer Service tomer Service and Sales, considered, and Sales, decides against the proposed and the decision must stand on the discontinuance, he or she must post, in record. No information or views sub- the post office considered for dis- mitted by customers may be excluded. continuance, a notice stating that the (ii) The docket number assigned to proposed closing or consolidation is not the proposal must be the ZIP Code of warranted. the office proposed for closing or con- (ii) Discontinuance warranted. If the solidation. district manager, Customer Service (iii) The record must include a chron- and Sales, decides that the proposed ological index in which each document discontinuance is justified, the appro- contained is identified and numbered priate sections of the proposal must be as filed. revised, taking into account the com- (iv) As written communications are ments received from the public. After received in response to the public no- making necessary revisions, the man- tice and invitation for comments, they ager must: are included in the record. (A) Forward the revised proposal and (v) A complete copy of the record the entire record to the vice president, must be available for public inspection Delivery and Retail. during normal office hours at the post (B) Attach a certificate that all docu- office proposed for discontinuance or at ments in the record are originals or the post office providing alternative true and correct copies. service, if the office to be discontinued (f) Postal Service decision—(1) In gen- was temporarily suspended, beginning eral. The vice president, Delivery and no later than the date on which notice Retail, or a designee must review the is posted and extending through the proposal of the district manager, Cus- comment period. tomer Service and Sales. This review (vi) Copies of documents in the and the decision on the proposal must record (except the proposal and com- be based on and supported by the ment form) are provided on request and record developed by the district man- on payment of fees as noted in the Ad- ager, Customer Service and Sales. The ministrative Support Manual (ASM) vice president, Delivery and Retail, can § 352.6. instruct the district manager to pro- (e) Consideration of public comments vide more information to supplement and final local recommendation—(1) the record. Each instruction and the Analysis of comments. After waiting not response must be added to the record. less than 60 days after notice is posted The decision on the proposal of the dis- under § 241.3(d)(1) the district manager, trict manager, which must also be Customer Service and Sales, must pre- added to the record, may approve or pare an analysis of the public com- disapprove the proposal, or return it ments received for consideration and for further action as set forth in this inclusion in the record. If possible, paragraph (f). comments subsequently received (2) Approval. The vice president, De- should also be included in the analysis. livery and Retail or a designee may ap- The analysis should list and briefly de- prove the proposal of the district man- scribe each point favorable to the pro- ager, Customer Service and Sales, with posal and each point unfavorable to the or without further revisions. If ap- proposal. The analysis should identify proved, the term ‘‘Final Determination’’ 82

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is substituted for ‘‘Proposal’’ in the (i) Provide notice of the Final Deter- title. A copy of the Final Determina- mination by posting a copy promi- tion must be provided to the district nently in the affected post office or of- manager. The Final Determination fices. The date of posting must be constitutes the Postal Service deter- noted on the first page of the posted mination for the purposes of 39 U.S.C. copy as follows: ‘‘Date of posting:’’ The 404(b). The Final Determination must district manager, Customer Service include the following notices: and Sales, must notify the vice presi- (i) Supporting materials. ‘‘Copies of all dent, Delivery and Retail, of the date materials on which this Final Deter- of posting. mination is based are available for pub- (ii) Ensure that a copy of the com- lic inspection at the (Name) Post Office pleted record is available for public in- during normal office hours.’’ spection during normal business hours (ii) Appeal rights. ‘‘This Final Deter- at each post office where the Final De- mination to (close) (consolidate) the termination is posted for 30 days from (name) Post Office may be appealed by the posting date. any person served by that office to the (iii) Provide copies of documents in Postal Rate Commission. Any appeal the record on request and payment of must be received by the Commission fees as noted in the ASM 352.6. within 30 days of the date this Final (2) Implementation of determinations Determination was posted. If an appeal not appealed. If no appeal is filed pursu- is filed, copies of appeal documents ant to 39 U.S.C. 404(b)(5), the official prepared by the Postal Rate Commis- closing date of the office must be pub- sion, or the parties to the appeal, must lished in the Postal Bulletin, effective be made available for public inspection the first Saturday 90 days after the at the (name) Post Office during nor- Final Determination was posted. A dis- mal office hours.’’ trict manager, Customer Service and (3) Disapproval. The vice president, Sales, may request a different date for Delivery and Retail, or a designee may official discontinuance in the Post Of- disapprove the proposal of the district fice Change Announcement document manager, Customer Service and Sales, submitted to the vice president, Deliv- and return it and the record to the ery and Retail. However, the post office manager with written reasons for dis- may not be discontinued sooner than 60 approval. The manager must post a no- days after the posting of the notice re- tice in each affected post office that quired by paragraph (g)(1) of this sec- the proposed closing or consolidation tion. has been determined to be unwar- (3) Actions during appeal—(i) Imple- ranted. mentation of discontinuance. If an appeal (4) Return for further action. The vice is filed, only the vice president, Deliv- president, Delivery and Retail, or a ery and Retail, may direct a dis- designee may return the proposal of continuance before disposition of the the district manager, Customer Service appeal. However, the post office may and Sales, with written instructions to not be discontinued sooner than 60 days give additional consideration to mat- after the posting of notice required by ters in the record, or to obtain addi- paragraph (g)(1) of this section. tional information. Such instructions (ii) Display of appeal documents. Legal must be placed in the record. Policy and Ratemaking Law, Postal (5) Public file. Copies of each Final Service General Counsel, must provide Determination and each disapproval of the district manager, Customer Service a proposal by the vice president, Deliv- and Sales, with copies of all pleadings, ery and Retail, must be placed on file notices, orders, briefs, and opinions in the Postal Service Headquarters li- filed in the appeal proceeding. brary. (A) The district manager must ensure (g) Implementation of final determina- that copies of all these documents are tion—(1) Notice of final determination to prominently displayed and available discontinue post office. The district for public inspection in the post office manager, Customer Service and Sales, to be discontinued. If the operation of must: that post office has been suspended, the

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manager must display copies in the af- will be limited to 180 days in duration. fected post offices. Any additional incremental time peri- (B) All documents except the Postal ods of up to 180 days each must be ap- Rate Commission’s final order and proved by the Vice President, Facili- opinion must be displayed until the ties. final order and opinion are issued. The (2) This section does not apply when final order and opinion must be dis- the project under consideration is lim- played for 30 days. ited to repair and alterations, such as— (4) Actions following appeal decision— (i) Painting; (i) Determination affirmed. If the Com- (ii) Repairs; mission dismisses the appeal or affirms (iii) Replacement or upgrade of struc- the Postal Service’s determination, the tural or functional elements of a postal official closing date of the office must building or of its equipment; be published in the Postal Bulletin, ef- (iv) Paving, striping, or other repair fective the first Saturday 90 days after of parking areas; the Commission renders its opinion, if (v) Landscaping. not previously implemented under (b) Purpose. The purpose of the proce- § 241.3(g)(3)(i). However, the post office dures required by this section is to as- may not be discontinued sooner than 60 sure increased opportunities for mem- days after the posting of the notice re- bers of the communities who may be quired under § 241.3(g)(1). affected by certain USPS facility (ii) Determination returned for further projects, along with local officials, to consideration. If the Commission re- convey their views concerning the con- turns the matter for further consider- templated project and have them con- ation, the vice president, Delivery and sidered prior to any final decision to Retail, must direct that either: expand, relocate to another existing (A) Notice be provided under para- building, or construct a new building graph (f)(3) of this section that the pro- that is owned or leased. posed discontinuance is determined not (c) Expansion, relocation, new con- to be warranted or struction. When a need is identified that (B) The matter be returned to an ap- will require the expansion, relocation, propriate stage under this section for or new construction of a customer further consideration following such service facility, postal representatives instructions as the vice president, De- responsible for the project will take livery and Retail, may provide. the following steps in accordance with [59 FR 29725, June 9, 1994, as amended at 60 the time schedule shown: FR 32273, June 21, 1995; 69 FR 11536, Mar. 11, (1) Personally visit one or more of 2004] the highest ranking local public officials (generally individuals holding § 241.4 Expansion, relocation, and con- elective office). During the visit, the struction of post offices. postal representatives will— (a) Application. (1) This section ap- (i) Identify the need and fully de- plies when the USPS contemplates any scribe the project that is under consid- one of the following projects with re- eration to meet it, explain the process spect to a customer service facility: ex- by which the Postal Service will solicit pansion, relocation to another existing and consider input from the affected building, or new construction, except community, and solicit a working part- when the project is to meet an emer- nership with the community officials gency requirement or for temporary for the success of the project. use. Emergency situations include, but (ii) Emphasize that in meeting a need are not limited to, earthquakes, floods, for increased space, the first priority is fire, lease terminations, safety factors, to expand the existing facility; the sec- environmental causes, or any other ac- ond priority is to find an existing tions that would force an immediate building in the same area as the cur- relocation from an existing facility. rent facility; and the third option is to Temporary relocation of space is used build on a new site; all within the for, but not limited to, holidays, spe- downtown area, if possible. cial events, or for overflow business. (iii) Ask that a Postal Service pres- Use of emergency and temporary space entation of the project be placed on the

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regular agenda of a public meeting or process by which an appeal can be hearing. If no such meeting is planned made. Information provided must in- within the next 60 days or the agenda clude time limitations and an address of a planned meeting cannot accommo- for the appeal. date the project, the USPS will sched- (5) Review comments and notify local ule its own public hearing concerning officials of decision. Not less than 15 the project, and will advertise the days after the date of the most recent meeting or hearing in a local general public meeting, or after receipt of noti- circulation newspaper. fication cards, make a decision that (iv) Give the local officials a letter takes into account community input describing the intended project. and is consistent with postal objectives (2) Notify the lessor of the affected (e.g., expansion, relocation to another facility of the project, in writing. building, or construction of a new (3) Send an initial news release to owned or leased facility), and notify local communications media. local officials in writing. This notifica- (4)(i) Post in the public lobby of the tion must include information on the affected post offices a copy of the let- availability and terms of review under ter given to local officials, or the news paragraph (c)(6) of this section. At the release, or, space permitting, both. If same time, post a copy of the notifica- such information is available at the tion letter in the local post office for time, include in the posting a public the community. Take no action on the notice of the date, time, and location decision for at least 30 days following of a public meeting or hearing at least notification of local officials and the 7 days prior to the meeting or hearing. community. (ii) Except as provided in this para- (6) Within the time period identified graph, attend, or conduct, one or more in paragraph (c)(5) of this section, any public hearings to describe the project person may request in writing that the to the community, invite questions, so- decision be reviewed by the Vice Presi- licit written comment, and describe dent, Facilities, at Postal Service the process by which community input Headquarters. No particular format is will be considered. If it is believed at required for requesting review, but the the time that the existing facility is request must be in writing and identify not able to be expanded or that expan- the post office or location affected; and sion is impracticable, disclose that fact should identify the decision objected and the reasons supporting that belief. to, and state the reasons for the objec- If, during the public meeting or hear- tion. The Vice President, Facilities, ing process, a new development should will obtain the views of the decision occur to allow for an expansion of the maker, review relevant parts of the existing facility, the Postal Service project file, and if necessary request will make a good faith effort in pur- more information from the appellant. suing this alternative. Under excep- Upon review of the facts, the Vice tional circumstances that would pre- President, or a representative, will vent postal representatives from at- issue a written determination, if pos- tending a public meeting or conducting sible, within 15 days. In no event will a postal hearing on the planned project the Postal Service take action on the within a reasonable time, and subject decision being reviewed until 15 days to approval of the Vice President, Fa- following issuance of the final review cilities, the Postal Service may dis- determination. If the determination on tribute a notification card to all af- review is to set aside the decision, the fected customers, seeking their com- project process will return to the pub- ments or other feedback. An example lic hearing stage of paragraph (c)(4) of of exceptional circumstances would be this section. a project in a sparsely populated area (7) Advertise for sites and existing remote from the seat of local govern- buildings, in accordance with existing ment or any forum where a postal con- postal procedures. ducted meeting could be held. (d) Discontinuance of post offices; his- (iii) At any public meeting or hear- toric preservation. (1) It is the policy of ing, advise local officials and the com- the Postal Service, by virtue of Board munity of their appeal rights and the of Governors Resolution No. 82–7, to

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comply with Section 106 of the general tions that it does not plan to adopt or provisions of the National Historic implement. Preservation Act, 16 U.S.C. 470, et seq., (g) Continuing communication. During Executive Order 12072, and Executive construction, whether renovation or Order 13006. Therefore, any facility new construction, the postmaster project that will have an effect on cul- should keep local officials and the com- tural resources will be undertaken in munity informed via letters and news accordance with that policy. releases. The postmaster and other (2) Any action involving the closing postal officials should plan, conduct or other discontinuance of a post office and invite the community and local of- shall be undertaken only in accordance ficials to any ‘‘grand opening’’, as ap- with 39 U.S.C. 404(b) and 39 CFR 243.1. propriate. In the event a facility action is subject [63 FR 46656, Sept. 2, 1998] to both this section, and either the NHPA or the post office discontinuance PART 242—CHANGE OF SITE requirements, all comment periods and other public participation matters § 242.2 Change of site—fourth-class of- shall be governed by those statutes. fices. (e) Site selection. (1) When the decision Report by memorandum to chief, or- is to advertise for sites and existing ganization and management branch, buildings, and after such sites have when change in site is necessary. Com- been identified, advise local officials in plete Form 1021 when furnished. Retain writing of all contending sites, and one copy in files. If new location is one- with respect to all sites not selected, fourth of a mile or more from existing provide an explanation. This notice location, furnish a statement signed by will advise local officials, and the com- majority of customers approving munity, that no decision to select a change. When a change involves mov- site will be made for a minimum of 30 ing a post office from one county to an- days, and that comments or discus- other, notify the Deputy Postmaster sions of all sites are solicited. Post a General, of the circumstances (includ- copy of this letter in the lobby of the ing a sketch showing present and pro- affected post office for public notice. posed sites), and await approval of that (2) Once a specific site is then se- Division. lected, notify local officials in writing of the selection decision. (39 U.S.C. 401) (3) Take no final action to acquire or [36 FR 4765, Mar. 12, 1971] lease the selected site for 30 days following the notification in paragraph PART 243—CONDUCT OF OFFICES (e)(2) of this section. (f) Planning, zoning, building codes. In § 243.2 Quarters. carrying out customer service facilities (a) Employee bulletin boards. Bulletin projects, it is the policy of the Postal boards may be placed in workrooms Service to comply with local planning and employees’ lunchrooms for dis- and zoning requirements and building playing notices as prescribed in this codes consistent with prudent business manual and Management Labor Orga- practices and unique postal require- nization Agreements. ments. In order to promote a partner- (b) Location of offices. Postal units ship with local officials and assure con- may not be located in, or directly con- formance with local building codes, nected to, a room in which intoxicating plans and drawings will be sent to the liquor is sold to be consumed on the appropriate building department or premises. other officials for review. Where pay- (c) Lost articles. When articles are ment of fees is normally required of turned in to employees, the name and private entities, the Postal Service will address of the finder shall be recorded pay a reasonable fee for the review. so the article may be returned to him The Postal Service will give local pub- if not claimed by the loser. If the name lic officials written notice of any time- of the finder cannot be obtained, and ly, written objections or recommenda- the article is not claimed within 30

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days, it must be disposed of in the service areas such as elevator lobbies same manner as unidentified material and corridors in facilities owned by or found loose in the mail. Do not return leased to the Postal Service. Further, postal money orders to the finder. Mail such photographs are not to be requi- to Money Order Branch, Accounting sitioned or purchased by postal instal- Division, U.S. Postal Service, General lations at Postal Service expense. Accounting Office Building, Wash- (39 U.S.C. 501) ington, DC 20260, with a memorandum of explanation. [36 FR 4765, Mar. 12, 1971, as amended at 39 (d) Public use of restrooms. Restrooms FR 38376, Oct. 31, 1974; 40 FR 8820, Mar. 3, off public corridors shall normally be 1975; 42 FR 33722, July 1, 1977; 44 FR 39854, July 6, 1979] kept open during regular hours of business for the benefit of the public. Where vandalism or loitering cannot be General Postal Administration controlled, postmasters may lock restrooms, furnishing those agencies PART 254—POSTAL SERVICE served by the restrooms, keys for em- STANDARDS FOR FACILITY AC- ployee use. This shall not be construed CESSIBILITY PURSUANT TO THE to permit access by nonpostal per- ARCHITECTURAL BARRIERS ACT sonnel to restrooms in restricted postal areas. Sec. (e) Letter drops. At all except fourth- 254.1 Adoption of U.S. Access Board Stand- class post offices, provide a regulation ards as Postal Service Standards of Fa- letterbox for depositing mail in front of cility Accessibility or next to the post office. Show collec- 254.2 Definition of primary function area tion time schedules on letterboxes. At and criteria used to determine whether fourth-class offices, if a letterbox is not an alteration has an effect on an area supplied, provide a slot in the outer containing a primary function that is post office door. When messengers or disproportionate to the overall alterations. star route carriers have access to lobbies, door slot deposits must lead to a AUTHORITY: 39 U.S.C 101, 401, 403; 29 U.S.C. locked box. 792(b)(3) and 42 U.S.C. 12204. (f) Hour signs. Display hours of win- SOURCE: 70 FR 28214, May 17, 2005, unless dow service prominently at all first-, otherwise noted. second-, and third-class post offices, classified stations and branches, and § 254.1 Adoption of U.S. Access Board annexes. Use Sign 41, Hours decal set, Standards as Postal Service Stand- available in supply centers. ards of Facility Accessibility. (g) Service of process on postal premises. (a) The United States Postal Service Postmasters or other installation adopts as its Architectural Barriers heads shall permit service on postal Act (ABA) ‘‘Standards for Facility Ac- premises of civil and criminal process cessibility,’’ the following sections of 36 affecting employees in personal mat- CFR part 1191: ters, when such service of process will Appendix A to Part 1191, Table of not interfere with postal operations. Contents for apps. C, D, and E. Process servers should be directed to Appendix C to Part 1191, Architec- the postmaster’s or installation head’s tural Barriers Act, Scoping (which con- office, where the employee will be tains ABA Chapter 1, Application and called in and service made. Section Administration, and ABA Chapter 2, 265.10 of this chapter contains rules re- Scoping requirements); pertinent parts garding compliance with subpoena of Appendix D to Part 1191, Technical duces tecum, court orders, and sum- (which includes Chapters 3 through 10). monses where official business or offi- Appendix E to Part 1191, List of Fig- cial records are involved. ures and Index. (h) Public service areas—prohibited (b) These sections listed in paragraph items. Photographs of an incumbent or (a) of this section are adopted ver- former President or Postmaster Gen- batim, with the exception of the Advi- eral are not to be displayed in post of- sory Notes, which are expressly ex- fice lobbies or in common use public cluded.

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§ 254.2 Definition of primary function the usability of or access to an area area and criteria used to determine containing a primary function.’’ It is whether an alteration has an effect conceivable that almost any repair or on an area containing a primary alteration project in a ‘‘primary func- function that is disproportionate to the overall alterations. tion area’’ could affect the usability of the area. Therefore a literal interpreta- (a) Terminology. The new accessibility tion of this provision could require an guidelines require that certain terms expansion of the scope of virtually any be defined by the participating federal alteration in a primary function area, agencies. In the U.S. Access Board’s 36 regardless of the size and scope of the CFR part 1191, Appendix C, ABA chap- original project. According to Section ter 2, section F202.6.2 requires that F202.6.2, accessibility improvements ‘‘primary function areas’’ be defined and Section F202.4 contains requirements must be made to the path of travel to for alterations affecting ‘‘primary func- the altered area and to rest rooms, tion areas’’ stating, ‘‘* * *an alteration telephones, and drinking fountains that affects or could affect the that serve the altered area ‘‘unless such usability of or access to an area con- alterations are disproportionate to the taining a primary function shall be overall alterations in terms of cost and made so as to ensure that, to the max- scope’’. imum extent feasible, the path of trav- (2) For purposes of the accessibility el to the altered area, including the guidelines applicable to the Postal rest rooms, telephones, and drinking Service under the Architectural Bar- fountains serving the altered area, are riers Act, two criteria must be consid- readily accessible to and usable by in- ered in making a determination wheth- dividuals with disabilities, unless such er accessibility improvements are dis- alterations are disproportionate to the proportionate to the cost and scope of overall alterations in terms of cost and the original alteration: a magnitude scope as determined under criteria es- threshold for the original alteration tablished by the Administrator of * * * and a maximum ‘‘percentage threshold’’ the United States Postal Service.’’ for the accessibility alteration. (b) Primary function areas. For pur- (d) Magnitude threshold. It is antici- poses of this part, the primary function pated that, in most cases, a significant of the Postal Service is to provide mail additional effort would be required to service for its customers, that is to accept, distribute, transport and deliver assess physical conditions along the the mail. Two essential facilities for path of travel and for rest rooms, tele- fulfilling these functions are customer phones, and drinking fountains that lobby areas where customers conduct serve the altered area, and to deter- their retail transactions, access mail mine the scope, budget and appropriate depositories and post office boxes and design requirements for any corrective work room areas where postal employ- alterations. Unless the original alter- ees distribute the mail and perform ation is of substantial magnitude, a other core postal operations. There- disproportionate effort would be de- fore, for purposes of the accessibility voted to such investigation, design, guidelines applicable to the Postal and administration leaving few, if any Service under the Architectural Bar- funds to accomplish corrective work. riers Act, two primary function areas Accordingly, a ‘‘magnitude threshold’’ are identified: Customer Lobbies and is established such that no accessi- Workroom Areas. bility improvements to the path of (c) Disproportionality. (1) According to travel, nor to any associated facilities, Section F202.6.2, ‘‘alteration’’ of ele- shall be required under F202.6.2 for al- ments in a primary function area can terations that have an estimated total trigger a requirement to make accessi- cost less than 20 percent of the fair bility improvements along the path of market value of the facility. travel to the area and improvements to (e) Percentage threshold. For alter- rest rooms, telephones, and drinking ations subject to F202.6.2 that meet or fountains that serve the altered area if exceed the magnitude threshold, the the alteration ‘‘affects or could affect ‘‘ ’’ 88

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maximum cost for accessibility im- nounced by the Architectural and provements to the path of travel, in- Transportation Barriers Compliance cluding all costs for accessibility im- Board on December 21, 2000. Those provements to rest rooms, telephones, standards are codified at 36 CFR part and drinking fountains that serve the 1194. altered area, shall not exceed 20 percent of the total cost of the original al- § 255.2 Definitions. teration. Costs for accessibility im- (a) Agency as used in this part means provements in excess of the 20 percent the Postal Service. threshold shall be deemed dispropor- ‘‘ (b) Area/functional vice president also tionate. ’’ includes his or her designee. (c) Electronic and information tech- PART 255—ACCESS OF PERSONS nology (EIT) includes ‘‘information WITH DISABILITIES TO POSTAL technology’’ and any equipment or SERVICE PROGRAMS, ACTIVITIES, interconnected system or subsystem of FACILITIES, AND ELECTRONIC equipment that is used in the creation, AND INFORMATION TECH- conversion, or duplication of data or NOLOGY information. The term does not include any equipment that contains embedded Sec. information technology that is used as 255.1 Purpose. an integral part of the product, but the 255.2 Definitions. principal function of which is not the 255.3 Nondiscrimination under any program acquisition, storage, manipulation, or activity conducted by the Postal Serv- management, movement, control, dis- ice. 255.4 Accessibility to electronic and infor- play, switching, interchange, trans- mation technology. mission, or reception of data or infor- 255.5 Employment. mation. 255.6 Processing of complaints. (d) Formal complaint means a written 255.7 Special arrangements for postal serv- statement that contains the complain- ices. ant’s name, address, and telephone 255.8 Access to postal facilities. 255.9 Other postal regulations; authority of number, sets forth the nature of the postal managers and employees. complainant’s disability, and describes the agency’s alleged discriminatory ac- AUTHORITY: 39 U.S.C. 101, 401, 403, 1001, 1003, 3403, 3404; 29 U.S.C. 791, 794, 794d. tion in sufficient detail to inform the agency of the nature of the alleged vio- SOURCE: 69 FR 44962, July 28, 2004, unless lation of section 504 or of section 508. It otherwise noted. shall be signed by the complainant or § 255.1 Purpose. by someone authorized to do so on the complainant’s behalf. (a) This part implements section 504 (e) Individual with a disability. For of the Rehabilitation Act of 1973, as purposes of this part, ‘‘individual with a amended. Section 504 prohibits dis- disability’’ means any person who— crimination on the basis of disability in programs or activities conducted by (1) Has a physical or mental impair- executive agencies or by the Postal ment that substantially limits one or Service. This part also implements sec- more of such person’s major life activi- tion 508 of the Rehabilitation Act of ties; 1973, as amended. Section 508 requires (2) Has a record of such an impair- that executive agencies and the Postal ment; or Service ensure, absent an undue bur- (3) Is regarded as having such an im- den, that individuals with disabilities pairment. have access to electronic and informa- (f) Information technology means any tion technology that is comparable to equipment, or interconnected system the access of individuals who are not or subsystem of equipment, that is disabled. used in the automatic acquisition, (b) The standards relating to elec- storage, manipulation, management, tronic and information technology ex- movement, control, display, switching, pressed in this part are intended to be interchange, transmission, or reception consistent with the standards an- of data or information.

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(g) Postal manager. As used in this § 255.4 Accessibility to electronic and part, ‘‘postal manager’’ means the man- information technology. ager or official responsible for a serv- (a) In accordance with section 508 of ice, facility, program, or activity. the Rehabilitation Act, the Postal (h) Qualified individual with a dis- Service shall ensure, absent an undue ability. For purposes of this part, burden, that the electronic and infor- ‘‘qualified individual with a disability’’ mation technology the agency procures means— allows— (1) With respect to any Postal Serv- (1) Individuals with disabilities who ice program or activity, except for em- are Postal Service employees or appli- ployment, under which a person is re- cants to have access to and use of in- quired to perform services or to formation and data that is comparable achieve a level of accomplishment, an to the access to and use of information individual with a disability who meets and data by Postal Service employees the essential eligibility requirements or applicants who are not individuals and who can achieve the purpose of the with disabilities; and program or activity without modifica- (2) Individuals with disabilities who tions in the program or activity that are members of the public seeking in- the agency can demonstrate would re- formation or services from the Postal sult in a fundamental alteration in its Service to have access to and use of in- nature; or formation and data that is comparable (2) With respect to any other pro- to the access to and use of information gram or activity, except for employ- and data by members of the public who ment, an individual with a disability are not individuals with disabilities. who meets the essential eligibility re- (b) When procurement of electronic quirements for participation in, or re- and information technology that meets ceipt of benefits from, that program or the standards published by the Archi- activity; or tectural and Transportation Barriers (3) With respect to employment, an Compliance Board would pose an undue individual with a disability who can burden, the Postal Service shall pro- perform the essential functions of the vide individuals with disabilities cov- job in question with or without reason- ered by paragraph (a) of this section able accommodation. with the information and data by an (i) Section 501 means section 501 of the alternative means of access that allows Rehabilitation Act of 1973, as amended. the individuals to use the information Section 501 is codified at 29 U.S.C. 791. and data. (j) Section 504 means section 504 of the Rehabilitation Act of 1973, as amended. § 255.5 Employment. Section 504 is codified at 29 U.S.C. 794. No qualified individual with a dis- (k) Section 508 means section 508 of ability shall, on the basis of disability, the Rehabilitation Act of 1973, as be subjected to discrimination in em- amended. Section 508 is codified at 29 ployment with the Postal Service. The U.S.C. 794d. definitions, requirements, and proce- (l) Undue burden means significant dures of section 501 of the Rehabilita- difficulty or expense. tion Act of 1973, as established by the (m) Vice President and Consumer Advo- Equal Employment Opportunity Com- cate also includes his or her designee. mission in 29 CFR part 1614 shall apply to employment within the Postal Serv- § 255.3 Nondiscrimination under any ice. program or activity conducted by the Postal Service. § 255.6 Processing of complaints. In accordance with section 504 of the (a) Section 504 complaints, employment. Rehabilitation Act, no qualified indi- The Postal Service shall process com- vidual with a disability shall, solely by plaints of employees and applicants al- reason of his or her disability, be ex- leging violations of section 504 with re- cluded from participation in, be denied spect to employment according to the the benefits of, or be subjected to dis- procedures established by the Equal crimination under, any program or ac- Employment Opportunity Commission tivity conducted by the Postal Service. in 29 CFR part 1614 pursuant to section

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501 of the Rehabilitation Act of 1973, as responsible postal manager must send amended, 29 U.S.C. 791. In accordance the complainant a written acknowl- with 29 CFR part 1614, the Postal Serv- edgement of the informal complaint. ice has established procedures for proc- The written acknowledgment will in- essing complaints of alleged employ- clude the date the complaint was filed ment discrimination, based upon dis- and a description of the issue(s). If the ability, in the agency’s handbook, matter cannot be resolved within 30 Equal Employment Opportunity Com- days of its receipt, the complainant plaint Processing. must be sent a written interim report (b) Section 504 complaints, members of which explains the status of the infor- the public. The procedures of this part mal complaint and the proposed resolu- shall apply to section 504 complaints tion of the matter. On or before the alleging disability discrimination in 60th day from the agency’s receipt of any program or activity of the Postal the informal complaint, the appro- Service and brought by members of the priate area/functional vice president public. within the Postal Service shall send a (c) Section 508 complaints, members of written decision to the complainant de- the public, employees, and applicants. tailing the final disposition of the in- The procedures of this part shall apply formal complaint and the reasons for to section 508 complaints alleging fail- that disposition. The decision shall ure to provide access to electronic and contain the notice that the complain- information technology and brought by ant may challenge an informal decision members of the public or by employees which denies relief either by pro- or applicants. Section 508 complaints ceeding in any other appropriate forum shall be processed to provide the rem- or by filing a formal complaint with edies required by section 508 of the Re- the Vice President and Consumer Ad- habilitation Act. vocate. The notice will give the address (d) Complaint Procedures. Any indi- of the Vice President and Consumer vidual with a disability who believes Advocate. The notice shall also state that he or she has been subjected to that if the complainant chooses to file discrimination prohibited by this part a formal complaint, the complainant or by the alleged failure of the agency shall exhaust the formal complaint to provide access to electronic and in- procedures before filing suit in any formation technology may file a com- other forum. plaint by following the procedures de- (iii) Automatic review. The responsible scribed herein. A complainant shall postal manager’s proposed disposition first exhaust informal administrative of the informal complaint shall be sub- procedures before filing a formal committed to the appropriate district/pro- plaint. gram manager for review. The district/ (1) Informal complaints relating to Post- program manager shall forward the al Service programs or activities and to proposed disposition to the area/func- EIT. (i) A complainant initiates the in- tional vice president for review and formal process by informing the reissuance of the written decision. This sponsible postal manager orally or in automatic review process shall be com- writing of the alleged discrimination pleted such that the written decision of or inaccessibility of Postal Service pro- the area/functional vice president shall grams, activities, or EIT. Postal man- be sent to the complainant no later agers or employees who receive infor- than the 60th day from the agency’s re- mal complaints that they lack the au- ceipt of the informal complaint. thority to resolve must promptly refer (2) Formal complaints. If an informal any such informal complaint to the ap- complaint filed under paragraph (d)(1) propriate postal manager, and at the of this section denies relief, the com- same time must notify the complain- plainant may seek relief in any other ant of the name, address, and telephone appropriate forum, including the right number of the person handling the to file a formal complaint with the complaint. Vice President and Consumer Advocate (ii) Resolution of the informal com- in accordance with the following proce- plaint and time limits. Within 15 days of dures. If the complainant files a formal receipt of the informal complaint, the complaint with the Vice President and

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Consumer Advocate, the complainant stage of administrative or judicial pro- shall exhaust the formal complaint ceedings under the statute. procedures before filing suit in any other forum. § 255.7 Special arrangements for postal (i) Where to file. Formal complaints services. relating to programs or activities con- Members of the public who are un- ducted by the Postal Service or to ac- able to use or who have difficulty using cess of Postal Service EIT may be filed certain postal services may be eligible with the Vice President and Consumer under postal regulations for special ar- Advocate, United States Postal Serv- rangements. Some of the special ar- ice, 475 L’Enfant Plaza, SW., Wash- rangements that the Postal Service has ington, DC 20260. authorized are listed below. No one is (ii) When to file. A formal complaint required to use any special arrange- shall be filed within 30 days of the date ment offered by the Postal Service, but the complainant receives the decision an individual’s refusal to make use of a of the area/functional vice president to particular special arrangement does deny relief. For purposes of deter- not require the Postal Service to offer mining when a formal complaint is other special arrangements to that in- timely filed under paragraph (d)(2)(ii) dividual. of this section, a formal complaint (a) The Postal Operations Manual of- mailed to the agency shall be deemed fers information on special arrange- filed on the date it is postmarked. Any ments for the following postal services: other formal complaint shall be (1) Carrier delivery services and pro- deemed filed on the date it is received grams. by the Vice President and Consumer (2) Postal retail services and pro- Advocate. grams. (iii) Acceptance of the formal com- (i) Stamps by mail or phone. plaint. The Vice President and Con- (ii) Retail service from rural carriers. sumer Advocate shall accept a timely (iii) Self-service postal centers. Self- filed formal complaint that meets the service postal centers contain vending requirements of § 255.2(d), that is filed equipment for the sale of stamps and after fulfilling the informal exhaustion stamp items, and deposit boxes for par- procedures of § 255.6(d)(1), and over cels and letter mail. Many centers are which the agency has jurisdiction. The accessible to individuals in wheel- Vice President and Consumer Advocate chairs. Information regarding the loca- shall notify the complainant of receipt tion of the nearest center may be ob- and acceptance of the formal com- tained from a local post office. plaint within 15 days of the date the (b) The Domestic Mail Manual, the Ad- Vice President and Consumer Advocate ministrative Support Manual, and the received the formal complaint. International Mail Manual contain in- (iv) Resolution of the formal complaint. formation regarding postage-free mail- Within 180 days of receipt and accept- ing for mailings that qualify. ance of a formal complaint over which (c) Inquiries and requests. Members of the agency has jurisdiction, the Vice the public wishing further information President and Consumer Advocate about special arrangements for par- shall notify the complainant of the re- ticular postal services may contact sults of the investigation of the formal their local postal manager. complaint. The notice shall be a writ- (d) Response to a request or complaint ten decision stating whether or not re- regarding a special arrangement for postal lief is being granted and the reasons for services. A local postal manager receiv- granting or denying relief. The notice ing a request or complaint about a spe- shall state that it is the final decision cial arrangement for postal services of the Postal Service on the formal must provide any arrangement as re- complaint. quired by postal regulations. If no spe- (e) No retaliation. No person shall be cial arrangements are required by post- subject to retaliation for opposing any al regulations, the local postal man- practice made unlawful by the Reha- ager, in consultation with the district bilitation Act of 1973, as amended, 29 manager or area manager, as needed, U.S.C. 791, or for participating in any may provide a special arrangement or

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take any action that will accommodate case-by-case basis in accordance with an individual with a disability as re- the criteria listed in paragraph (a)(2) of quired by section 504 or by this part. this section. If a discretionary alteration is not made, the local postal § 255.8 Access to postal facilities. manager should determine if a special (a) Legal requirements and policy—(1) arrangement for postal services under ABA Standards. Where the design § 255.7 can be provided. standards of the Architectural Barriers Act (ABA) of 1968, 42 U.S.C. 4151 et seq., § 255.9 Other postal regulations; au- do not apply, the Postal Service may thority of postal managers and employees. perform a discretionary retrofit to a facility in accordance with this part to This part supplements all other post- accommodate individuals with disabil- al regulations. Nothing in this part is ities. intended either to repeal, modify, or (2) Discretionary modifications. The amend any other postal regulation, to Postal Service may modify facilities authorize any postal manager or em- not legally required to conform to ABA ployee to violate or exceed any regu- standards when it determines that latory limit, or to confer any budg- doing so would be consistent with effi- etary authority on any postal official cient postal operations. In determining or employee outside normal budgetary whether modifications not legally re- procedures. quired should be made, due regard is to be given to: PART 259—SERVICES PERFORMED (i) The cost of the discretionary FOR OTHER AGENCIES modification; (ii) The number of individuals to be Sec. benefited by the modification; 259.1 Government. (iii) The inconvenience, if any, to the 259.2 Red Cross. general public; (iv) The anticipated useful life of the § 259.1 Government. modification to the Postal Service; (a) Policy. The Postal Service cooper- (v) Any requirement to restore a ates with Federal Agencies whenever leased premises to its original condi- the overall costs to Government will be tion at the expiration of the lease, and reduced. Assistance in a number of spe- the cost of such restoration; cial projects and programs is provided (vi) The historic or architectural sig- when the knowledge and abilities of nificance of the property in accordance postal employees are helpful. with the National Historic Preserva- (b) Reimbursement. The Postal Service tion Act of 1966, 16 U.S.C. 470 et seq.; establishes reasonable fees and charges (vii) The availability of other options for nonpostal services performed for to foster service accessibility; and agencies of the Federal as well as State (viii) Any other factor that is rel- governments. In establishing such fees evant and appropriate to the decision. and charges, the Postal Service con- (b) Inquiries and requests. (1) Inquiries siders the value of time of the per- concerning access to postal facilities, sonnel directly involved in the per- and requests for discretionary alter- formance of the service, including di- ations of postal facilities not covered rect supervision and supporting func- by the design standards of the ABA, tions, plus the cost of materials and may be made to the local postal man- supplies specifically sold, used or con- ager of the facility involved. sumed. Also included is an element rep- (2) The local postal manager’s re- resenting a reasonable share of Postal sponse to a request or complaint re- Service general overhead costs which garding an alteration to a facility will are not attributable or assignable spe- be made after consultation with the cifically to any product or service. The district manager or the area manager. establishment of such fees and charges If the determination is made that shall be reasonably consistent with the modification to meet ABA design methods employed in establishing standards is not required, a discre- rates and fees for postal services then tionary alteration may be made on a in effect.

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(c) Except as provided in paragraph with less than 30 days advance notice. (d) of this section, arrangements for Since FHLBB has agreed to reimburse Postal Service participation in special USPS at twice the normal rates for surveys, censuses, and other activities promptly performing such surveys, must be made between the national every reasonable effort should be made headquarters of the requesting agen- to accommodate such requests in a cies and the Customer Services Depart- timely manner. ment, U.S. Postal Service, Washington, (iv) Housing Vacancy Surveys will DC 20260. Refer all requests to the Re- not be conducted during the month of gional Postmaster General for for- December of any year. warding to Headquarters. Authority to (v) Postmasters will notify the Office perform services for Government agen- of Delivery and Collection, Wash- cies is announced in the Postal Bul- ington, DC 20260, of the number of each letin or by individual letters to the of- type survey form completed for fices involved. FHLBB. FHLBB will then remit pay- (d) Housing Vacancy Surveys—(1) Gen- ment directly to Headquarters, USPS. eral. An interagency agreement be- (vi) USPS will not release or publish tween the U.S. Postal Service (USPS) any survey results except in response and the Federal Home Loan Bank to a court order, subpoena, or as re- Board (FHLBB) establishes the terms quired by the Freedom of Information and conditions and reimbursement Act. rates under which USPS will conduct (e) Unauthorized projects prohibited. Housing Vacancy Surveys in City De- Do not conduct special surveys or oth- livery offices when requested by erwise participate in any cooperative FHLBB. projects without the authorization in (2) Restrictions. The Agreement only paragraph (c) of this section. authorizes the disclosure of aggregate statistical data. Postal managers must (39 U.S.C. 401, 411) not permit the name or address of any [36 FR 4773, Mar. 12, 1971, as amended at 40 past or present postal patron, or any FR 26511, June 24, 1975; 41 FR 56196, Dec. 27, other person to be disclosed unless 1976; 42 FR 58170, Nov. 8, 1977; 42 FR 63170, such disclosure is authorized in writing Dec. 15, 1977] by USPS Regions or Headquarters and is not in violation of 39 U.S.C. 412. § 259.2 Red Cross. (3) Postmaster’s Responsibility. (i) A (a) General. The Postal Service and postmaster will receive notification the Red Cross cooperate to maintain from FHLBB when his office has been communication between the individual selected to conduct a Housing Vacancy and the community during times of Survey. Normally, written notification disaster. This applies only to natural will be mailed to the postmaster 30 disasters such as those caused by days in advance of the date FHLBB floods, tornados, hurricanes, earth- would like USPS to conduct the sur- quakes, fires, explosions, etc., and not vey, since USPS is under no obligation to those caused by enemy action. to use overtime or auxiliary assistance (b) Role of Postal Service. The Postal to conduct these surveys. The post- Service and the Red Cross will share master or his designee will schedule information on the whereabouts of per- the survey on or near the date re- sons displaced by disasters, and other- quested and will promptly reply to wise cooperate with each other, as fol- FHLBB so that the necessary forms lows: will be provided on time. (1) The Red Cross will use Form 3575, (ii) All necessary forms and instruc- Change of Address Order, as a standard tions will be supplied directly to each item in Red Cross disaster relief. It will post office to be surveyed. Postmasters urge disaster victims displaced from will designate a manager in each deliv- their homes to obtain and complete the ery unit to coordinate the survey with- forms, it will distribute the forms to in the unit and to review completed disaster victims who need them, and it survey forms for accuracy. will collect from the victims and turn (iii) FHLBB may request USPS to over to the Postal Service any com- perform special or emergency surveys pleted forms received.

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(2) The Postal Service will provide § 261.1 Purpose and scope. the Red Cross the blank forms needed. As a result of the Postal Reorganiza- (3) During each disaster and subse- tion Act, 39 U.S.C. 410, the U.S. Postal quent disaster relief efforts, the Postal Service is no longer subject to the pro- Service will establish a separate file of visions of the Federal Records Act of change of address forms completed by 1950, or any of its supporting regula- disaster victims, and will make avail- tions which provide for the conduct of able to the Red Cross information in records management in Federal agen- the file. This information will be used cies. The objective of Parts 261 through by the Red Cross only to locate individ- 268 is to provide the basis for a Postal uals and families, to answer inquiries Service-wide records and information from relatives and friends concerning management program affecting all or- the whereabouts and welfare of the dis- ganizational components having the aster victims, or to make contact with custody of any form of information and disaster victims who have applied for records. assistance from the Red Cross but who cannot be located because of a change [40 FR 45721, Oct. 2, 1975; 40 FR 48511, Oct. 16, of address. 1975] (4) The Postal Service and the Red Cross will encourage appropriate local § 261.2 Authority. postal officials and Red Cross chapters (a) 39 U.S.C. 401(5) states that the to maintain contact with each other Postal Service has the power to acquire and to participate in local and commu- property it deems necessary or conven- nity planning for disasters. ient in the transaction of its business (5) When appropriate, the Postal and to hold, maintain, sell, lease or Service and the Red Cross will meet otherwise dispose of such property. and exchange information at the na- (b) 39 CFR 262.2 assigns to the Postal tional headquarters level concerning Service Records Office, located under the effectiveness of their joint efforts the Privacy Office responsibility for for disaster relief. the retention, security, and privacy of (6) Regional Postmasters General and Postal Service records and the power Postal Inspectors in Charge are respon- to authorize the disclosure of such sible for seeing that post offices imple- records and to order their disposal by ment these cooperative arrangements destruction or transfer. Included is the in disaster situations. authority to issue records management (7) The instructions in § 259.2 serve as policy and to delegate or take appro- a broad framework within which field priate action if that policy is not ad- officials of both agencies may coordi- hered to or if questions of interpreta- nate their facilities and resources. tion of procedure arise. However, postal officials shall cooperate with Red Cross officials to the max- [40 FR 45721, Oct. 2, 1975, as amended at 44 FR imum feasible degree during times of 51223, Aug. 31, 1979; 60 FR 57344, Nov. 15, 1995; 68 FR 56558, Oct. 1, 2003] natural disasters. (39 U.S.C. 401, 411) § 261.3 Policy. [36 FR 4773, Mar. 12, 1971, as amended at 40 It is the policy of the Postal Service: FR 26511, June 24, 1975] (a) To, as appropriate, create, preserve, protect and disclose records Records and Information which contain adequate and proper documentation of the organization, PART 261—RECORDS AND functions, policies, decisions, operations, procedures, activities and INFORMATION MANAGEMENT transactions of the Postal Service, (b) To reduce to an absolute min- Sec. 261.1 Purpose and scope. imum the records holdings of the Post- 261.2 Authority. al Service by strict adherence to estab- 261.3 Policy. lished records retention schedules. 261.4 Responsibility. [40 FR 45721, Oct. 2, 1975, as amended at 44 FR AUTHORITY: 39 U.S.C. 401. 51223, Aug. 31, 1979]

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§ 261.4 Responsibility. ties of the Privacy Office and the (a) The Manager, Records Office, Records Office. under the Privacy Office, administers (b) Manager, Records Office. The Man- the Postal Service release of informa- ager, Records Office, manages the tion and privacy of information pro- Records Office, and is responsible for grams with the assistance of FOIA co- establishing procedures and guidelines ordinators in the Consumer Affairs to ensure that record management function of area and district offices. practices are in compliance with the (b) The Chief Privacy Officer, under Privacy Act and FOIA. The Manager, the Vice President and Consumer Ad- Records Office, may also delegate or vocate, is responsible for administering take appropriate action if policies are records and information management not adhered to or if questions of inter- policies and for the compliance of all pretation or procedures arise. handbooks, directives, and instructions (c) Records Custodian. The postmaster in support of this policy. or other head of a facility such as an (c) Postal Service managers are re- area vice president, district manager, sponsible for administering records and or head of a postal installation or de- information management policies and partment who maintains Postal Serv- for complying with all handbooks, di- ice records. Vice presidents are the rectives, and instructions in support of custodians of records maintained at this policy. Headquarters. Senior medical personnel are the custodians of restricted [64 FR 41290, July 30, 1999, as amended at 68 medical records maintained within FR 56558, Oct 1, 2003] postal facilities. (d) Information System Executive. The PART 262—RECORDS AND INFOR- Postal Service official who prescribes MATION MANAGEMENT DEFINI- the existence of and the policies for an TIONS information system; usually this is a Vice President. Sec. (e) Records Office. The Records Office 262.1 Purpose and scope. is responsible for the issuance of policy 262.2 Officials. on the maintenance and disposition of 262.3 Information. 262.4 Records. Postal Service records and informa- 262.5 Systems (Privacy). tion, and to delegate or take appro- 262.6 Retention and disposal. priate action if such policy is not ad- 262.7 Non-records. hered to or if questions of interpreta- AUTHORITY: 5 U.S.C. 552, 552a; 39 U.S.C. 401. tion or procedure arise.

SOURCE: 49 FR 30693, Aug. 1, 1984, unless [49 FR 30693, Aug. 1, 1984, as amended at 51 otherwise noted. FR 26385, July 23, 1986; 60 FR 57344, Nov. 15, 1995; 63 FR 6481, Feb. 9, 1998; 64 FR 41290, July § 262.1 Purpose and scope. 30, 1999; 68 FR 56558, Oct. 1, 2003] This part contains the official definition of those basic records and infor- § 262.3 Information. mation management terms that are Data combined with the knowledge of frequently used throughout Postal its context and having the potential to Service regulations and directives. serve a Postal Service use. (a) Sensitive information. Information § 262.2 Officials. which has been identified by the USPS (a) Chief Privacy Officer. The Chief as restricted or critical. Privacy Officer (CPO) is responsible for (1) Critical information. Information the issuance of policy on the protection that must be available in order that of privacy and the release of Postal the Postal Service effectively perform Service records with the power to au- its mission and meet legally assigned thorize the disclosure of such records responsibilities; and for which special and to delegate or take appropriate ac- precautions are taken to ensure its action if that policy is not adhered to or curacy, relevance, timeliness and com- if questions of interpretation or proce- pleteness. This information, if lost, dure arise. The CPO directs the activi- would cause significant financial loss,

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inconvenience or delay in performance precedential files, which have value of the USPS mission. only as examples. (2) Restricted information. Information (c) Active record. A record that con- that has limitations placed upon both tains information used for conducting its access within the Postal Service current business. and disclosure outside the Postal Serv- (d) Inactive record. A record that con- ice consistent with the Privacy and tains information which is not used for Freedom of Information Acts. conducting current business, but for (i) Restricted mandatory. Information which the retention period has not yet that has limitations upon its internal expired. access and that may be disclosed only (e) Vital records. Certain records in accordance with an Executive Order, which must be available in the event of public law, or other Federal statute a national emergency in order to en- and their supporting postal regula- sure the continuity of Postal Service tions. (ii) Restricted discretionary. Informa- operations and the preservation of the tion that has limitations upon its in- rights and interests of the Postal Serv- ternal access and that may be withheld ice, its employees, contractors and cus- from external disclosure solely in ac- tomers. There are two types of vital cordance with postal regulations, con- records: Emergency Operating Records sistent with the Freedom of Informa- and Rights and Interests Records. tion Act. (1) Emergency operating records. Cer- (b) Classified information (National Se- tain vital records necessary to support curity). Information about the national essential functions of the Postal Serv- defense and foreign relations of the ice during and immediately following a United States that has been deter- national emergency. mined under Executive Order 12356 to (2) Rights and interest records. Certain require protection against unauthor- vital records maintained to ensure the ized disclosure and has been so des- preservation of the rights and interests ignated. of the Postal Service, its employees, contractors and customers. § 262.4 Records. [49 FR 30693, Aug. 1, 1984, as amended at 51 Recorded information, regardless of FR 26385, July 23, 1986; 60 FR 57344, Nov. 15, media, format, or physical characteris- 1995; 63 FR 6481, Feb. 9, 1998; 64 FR 41290, July tics, including electronic data, devel- 30, 1999; 68 FR 56558, Oct. 1, 2003] oped or received by the Postal Service in connection with the transaction of § 262.5 Systems (Privacy). its business and retained in its cus- (a) Privacy Act system of records. A tody; for machine-readable records, a Postal Service system containing in- collection of logically related data formation about individuals, including treated as a unit. (a) Permanent record. A record deter- mailing lists, from which information mined by the Records Office or the Na- is retrieved by the name of an indi- tional Archives and Records Adminis- vidual or by some identifying number tration as having sufficient historical or symbol assigned to the individual, or other value to warrant continued such as a Social Security Account preservation. (All other records are Number. considered temporary and must be (b) Individual (record subject). A living scheduled for disposal.) person. Does not include sole propri- (b) Corporate records. Those records etorships, partnerships or corporations. series that are designated by the A business firm identified by the name Records Office as containing informa- of one or more persons is not an indi- tion of legal, audit, obligatory or archi- vidual. val value about events and trans- (c) Computer matching program. A actions of interest to the entire cor- ‘‘matching program,’’ as defined in the porate body of the Postal Service. Cor- Privacy Act, 5 U.S.C. 552a(a)(8), is sub- porate records are distinguished from ject to the matching provisions of the operational records, which have value Act, published guidance of the Office of only in their day-to-day use, and from Management and Budget, and these

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regulations. The term ‘‘matching pro- regulations may be applicable. No gram’’ includes any computerized com- matching program or other matching parison of: activity may be conducted without the (1) A Postal Service automated sys- prior approval of the Records Office. tem of records with an automated system of records of another Federal agen- [49 FR 30693, Aug. 1, 1984, as amended at 59 FR 37160, July 21, 1994; 60 FR 57344, Nov. 15, cy, or with non-Federal records, for the 1995; 64 FR 41290, July 30, 1999; 68 FR 56558, purpose of: Oct. 1, 2003] (i) Establishing or verifying the eligibility of, or continuing compliance § 262.6 Retention and disposal. with statutory and regulatory requirements by, applicants for, recipients or (a) Records control schedule. A direc- beneficiaries of, participants in, or pro- tive describing records series that are viders of services with respect to, cash maintained by components of the Post- or in-kind assistance or payments al Service; it provides maintenance, re- under Federal benefit programs, or tention, transfer, and disposal instruc- (ii) Recouping payments or delin- tions for each series listed, and serves quent debts under such Federal benefit as the authority for Postal officials to programs; implement such instructions. (2) A Postal Service automated per- (b) Disposal (records). The permanent sonnel or payroll system of records removal of records or information from with another automated personnel or Postal Service custody; included are: payroll system of records of the Postal (1) Transfer to the National Archives. Service or other Federal Agency or (2) Donation to the Smithsonian In- with non-Federal records. stitution, local museums or historical (d) Other computer matching activities. societies. (1) The following kinds of computer (3) Sale as waste material. matches are specifically excluded from (4) Discarding. the term ‘‘matching program’’: (5) Physical destruction. (i) Statistical matches whose purpose (c) Retention period. The authorized is solely to produce aggregate data length of time that a records series stripped of personal identifiers. must be kept before its disposal, usu- (ii) Statistical matches whose pur- ally stated in terms of months or pose is in support of any research or years, but sometimes expressed as con- statistical project. tingent upon the occurrence of an (iii) Law enforcement investigative event; usually the retention period re- matches whose purpose is to gather fers to the period of time between the evidence against a named person or creation of a series and its authorized persons in an existing investigation. disposal date; however, in some cases it (iv) Tax administration matches. refers to the length of time between (v) Routine administrative matches the cutoff point and the disposal date. using Federal personnel records, provided that the purpose is not to take § 262.7 Non-records. any adverse action against an individual. (a) Non-record material. Includes (vi) Internal matches using only blank forms and surplus publications, records from Postal Service systems of handbooks, circulars, bulletins, an- records, provided that the purpose is nouncements, and other directives as not to take any adverse action against well as any material not directly asso- any individual. ciated with the transaction of Postal (vii) Matches performed for security Service business. clearance background checks or for (b) Personal papers. Those materials foreign counterintelligence. created or received during an individ- (2) Although these and other match- ual’s period of employment with the ing activities that fall outside the defi- Postal Service which are of a purely nition of ‘‘matching program’’ are not private or nonofficial character, or subject to the matching provisions of which were neither created nor re- the Privacy Act or OMB guidance, ceived in connection with Postal Serv- other provisions of the Act and of these ice business.

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PART 263—RECORDS RETENTION plished in accordance with procedures AND DISPOSITION issued by the Records Office. [40 FR 45722, Oct. 2, 1975, as amended at 60 FR Sec. 57344, Nov. 15, 1995. Redesignated and amend- 263.1 Purpose and scope. ed at 64 FR 41290, July 30, 1999; 68 FR 56558, 263.2 Policy. Oct. 1, 2003] 263.3 Responsibility. 263.4 Records disposal. § 263.5 Inquiries. 263.5 Inquiries. Inquiries regarding records maintenance and disposition should be di- AUTHORITY: 39 U.S.C. 401. rected to the Manager, Records Office, SOURCE: 40 FR 45722, Oct. 2, 1975, unless United States Postal Service, 475 otherwise noted. L’Enfant Plaza, SW., Washington, DC 20260, or, by telephone, (202) 268–2608. § 263.1 Purpose and scope. [64 FR 41290, July 30, 1999, as amended at 68 This part contains the policy and FR 56558, Oct. 1, 2003] general regulations pertaining to the retention and disposition of records PART 264—VITAL RECORDS and information throughout all organizational levels and components. Sec. 264.1 Purpose and scope. § 263.2 Policy. 264.2 Policy. It is the policy of the U.S. Postal 264.3 Responsibility. Service to establish and maintain 264.4 Vital Records Program. schedules specifying the retention peri- AUTHORITY: 39 U.S.C. 401. ods required for all official and dupli- SOURCE: 44 FR 51224, Aug. 31, 1979, unless cate record copies. Furthermore, it is otherwise noted. the policy that all duplicate record copies and non-record material will be § 264.1 Purpose and scope. disposed of as soon as they have served Certain records are critical to the their purpose. continuity of Postal Service operations or to the preservation of the rights and § 263.3 Responsibility. interests of the Postal Service, its em- (a) Records Office. Records Office has ployees, contractors or customers. To the responsibility for providing for the ensure that these records are available establishment of retention schedules when needed, specific controls are re- and has the authority to approve them. quired which affect all organizational Furthermore, that office has the au- components having the custody of thority to dispose of Postal Service records defined as being ‘‘vital.’’ records by transfer or destruction. (b) Custodians. Custodians are respon- § 264.2 Policy. sible for the retention and prompt dis- It is the policy of the U.S. Postal posal of records in their custody and Service to ensure the availability of all for delegating in writing, persons to records considered critical to the con- perform these duties. tinuity of its operations and the preservation of the rights and interests of [40 FR 45722, Oct. 2, 1975, as amended at 60 FR the Postal Service, its employees, con- 57344, Nov. 15, 1995; 64 FR 41290, July 30, 1999; tractors, and customers. Vital records 68 FR 56558, Oct. 1, 2003] shall be routinely maintained at predesignated off-site locations to en- § 263.4 Records disposal. sure their availability when needed by All disposals of records containing management and operating personnel. sensitive information, i.e. transfers to records storage centers, destruction, § 264.3 Responsibility. transfers external to the USPS, and (a) Manager, Records Office. The Man- maintenance of accounting records re- ager, Records Office, is responsible for garding such disposal, must be accom- categorizing records as vital, and in

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conjunction with the Chief Postal In- AUTHORITY: 5 U.S.C. 552; 5 U.S.C. App. 3; 39 spector/Emergency Coordinator shall U.S.C. 401, 403, 410, 1001, 2601. establish and maintain the vital records program, and ensure compli- § 265.1 Purpose and scope. ance with supportive procedures. (a) This part contains the regulations (b) Chief Postal Inspector. As the of the Postal Service relating to the Postal Service’s Emergency Coordi- availability to the public of Postal nator, the Chief Postal Inspector shall Service records. Included in this part establish and maintain a program to are the regulations which implement ensure that vital records are available section 552 of title 5, U.S.C., the ‘‘Free- at predesignated off-site locations for dom of Information Act,’’ insofar as it use during a national emergency. applies to the Postal Service. (c) Custodians. Custodians are respon- (b) Official records of the Postal sible for following vital records program procedures including the for- Service made available pursuant to the warding of vital records to requirements of the Act shall be fur- predesignated off-site locations. nished to members of the public as prescribed by this part. [44 FR 51224, Aug. 31, 1979, as amended at 60 FR 57344, Nov. 15, 1995; 64 FR 41290, July 30, [40 FR 7331, Feb. 19, 1975] 1999; 68 FR 56558, Oct. 1, 2003] § 265.2 Policy. § 264.4 Vital Records Program. (a) It is the policy of the Postal Serv- Complete procedures concerning the ice to make its official records avail- identification, categorization, proc- able to the public to the maximum ex- essing, protection, and transfer of vital tent consistent with the public inter- records are provided by the office of est. This policy requires a practice of Corporate Accounting or the USPS full disclosure subject only to the spe- Emergency Coordinator, as appropriate. cific exemptions required or authorized by law. [44 FR 51224, Aug. 31, 1979, as amended at 60 (b) The exemptions from mandatory FR 57344, Nov. 15, 1995; 64 FR 41290, July 30, disclosure provided by section 552(b) of 1999] title 5, and section 410(c) of title 39, U.S.C., for various types of records, re- PART 265—RELEASE OF flect the fact that under some cir- INFORMATION cumstances the public interest may be better served by leaving the disclosure Sec. 265.1 Purpose and scope. of particular records to the discretion 265.2 Policy. of the Postal Service than by requiring 265.3 Responsibility. their disclosure. As to those records 265.4 Inquiries. the disclosure of which is not prohib- 265.5 Public reading rooms. ited by statute, Executive Order, or 265.6 Availability of records. 265.7 Procedure for inspection and copying regulation, the discretion vested in the of records. Postal Service is exercised after giving 265.8 Business information; procedures for consideration to the following: The ef- predisclosure notification to submitters. fect of non-disclosure on the public’s 265.9 Schedule of fees. right to know about a particular mat- 265.10 Annual report. 265.11 Compliance with subpoena duces ter; the effect of disclosure on the right tecum, court orders, and summonses. of privacy of any affected individuals; 265.12 Demands for testimony or records in the effect of disclosure on the public certain legal proceedings. interest in the economical, efficient, 265.13 Compliance with subpoenas, sum- and orderly operation of the nation’s monses, and court orders by postal em- mail system; and any other factors ployees within the Inspection Service where the Postal Service, the United that may be relevant under the cir- States, or any other federal agency is not cumstances. a party. [40 FR 7331, Feb. 19, 1975, as amended at 45 APPENDIX A TO PART 265—FEES FOR COM- FR 44270, July 1, 1980] PUTER SERVICES

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§ 265.3 Responsibility. § 265.6 Availability of records. (a) Custodian. Official records are in (a) Records available to the public on the custody of the postmaster or other request—(1) General. Postal Service head of a facility or department at records are available for inspection or which they are maintained, as defined copying at the request of any person, at § 262.2(c) of this chapter. These in accordance with the provisions of custodians are responsible for respond- this part, except as otherwise provided ing in the first instance to requests by law or regulations, including but not limited to paragraphs (b) through from members of the public for Postal (g) of this section. Certain categories Service records. of records of particular interest are (b) Manager, Records Office. The Post- available on a continuing basis as pro- al Service Manager, Records Office, vided in paragraphs (a)(2), (3), and (4) of under the Privacy Office, is responsible this section and are listed in a public for the overall administration of this index as provided in paragraphs (a)(4) part, including the issuance of detailed and (5) of this section. Access to other instructions to custodians. records may be requested on an indi- (c) General Counsel. The General vidual basis in accordance with the Counsel decides timely appeals author- procedures provided in § 265.7. Official ized by this part. records which are maintained on an electronic storage medium will nor- [40 FR 7331, Feb. 19, 1975, as amended at 45 mally be made available, in accordance FR 44270, July 1, 1980; 60 FR 57344, Nov. 15, with this part, as an exact duplicate of 1995; 63 FR 6481, Feb. 9, 1998; 64 FR 41290, July the requested original in a form read- 30, 1999; 68 FR 56558, Oct. 1, 2003] able by the human eye, such as a computer print-out. On request, records § 265.4 Inquiries. will be provided in a different form or Inquiries regarding the availability format if they are maintained in the of Postal Service records should be di- requested form or format or if they can rected to the appropriate records cus- be readily reproduced in the requested todian. If the appropriate records cus- form or format. todian is not known, inquiries should (2) Opinions. All final opinions and be directed to the Manager, Records Of- orders made in the adjudication of fice, U.S. Postal Service, 475 L’Enfant cases by the Judicial Officer and Ad- Plaza SW., Washington, DC 20260, tele- ministrative Law Judges, all final de- phone (202) 268–2608. terminations pursuant to section 404(b) of title 39, United States Code, to close [60 FR 57345, Nov. 15, 1995, as amended at 64 or consolidate a post office, or to dis- FR 41290, July 30, 1999; 68 FR 56559, Oct. 1, approve a proposed closing or consoli- 2003] dation, all advisory opinions concerning the private express statutes § 265.5 Public reading rooms. issued pursuant to 39 CFR 310.6, and all The Library of the Postal Service bid protest decisions are on file and Headquarters, 475 L’Enfant Plaza SW, available for inspection and copying at Washington, DC 20260–1641, serves as the Headquarters Library and, if cre- public reading room for the materials ated on or after November 1, 1996, also which are listed in paragraphs (a)(2), at the Postal Service’s world wide web (3), (4) and (5) of § 265.6 as available for site identified at § 265.5. public inspection and copying. Such of (3) Administrative manuals and instruc- this material as has been created by tions to staff. The manuals, instruc- the Postal Service on or after Novem- tions, and other publications of the ber 1, 1996, and has not been published Postal Service that affect members of the public are available through the and offered for sale, also will be avail- Headquarters Library and at many able in electronic format at the Postal post offices and other postal facilities. Service’s world wide web site at http:// Those which are available to the public www.usps.com/foia. but are not listed for sale may be in- [63 FR 6481, Feb. 9, 1998, as amended at 68 FR spected in the Headquarters Library, at 56559, Oct. 1, 2003] any postal facility which maintains a

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copy, or, if created on or after Novem- (iii) Any person may arrange for the ber 1, 1996, through the world wide web inspection of any matter in the public site identified at § 265.5. Copies of publi- index in accordance with the proce- cations which are not listed as for sale dures of § 265.7. or as available free of charge may be (iv) Copies of the public index and of obtained by paying a fee in accordance matters listed in the public index may with § 265.9. be purchased through the Headquarters (4) Previously released records. Records Library with payment of fees as listed processed and disclosed after March 31, in the index or as provided in § 265.9. 1997, in response to a Freedom of Infor- (v) Materials listed in the public mation Act request, which the Postal index that were created on or after No- Service determines have become or are vember 1, 1996, will also be available in likely to become the subject of subse- electronic format at the Postal Serv- quent requests for substantially the ice’s world wide web site at http:// same records, are available for inspec- www.usps.gov. tion and copying at the Headquarters (6) Listings of employees’ names. Upon Library. Any such records created by written request, the Postal Service the Postal Service on or after Novem- will, to the extent required by law, pro- ber 1, 1996, also will be available at the vide a listing of postal employees Postal Service’s world wide web site working at a particular postal facility. identified at § 265.5. Records described (b) Records not subject to mandatory in this paragraph that were not created public disclosure. Certain classes of by, or on behalf of, the Postal Service records are exempt from mandatory generally will not be available at the disclosure under exemptions contained world wide web site. Records will be in the Freedom of Information Act and available in the form in which they in section 410(c) of title 39, U.S.C. The were originally disclosed, except to the Postal Service will exercise its discre- extent that they contain information tion, in accordance with the policy that is not appropriate for public dis- stated in § 265.2, as implemented by in- closure and may be withheld pursuant structions issued by the Records Office to this section. Any deleted material with the approval of the General Coun- will be marked and the applicable ex- sel in determining whether the public emption(s) indicated in accordance interest is served by the inspection or with § 265.7(d)(3). A general index of the copying of records that are: records described in this paragraph is available for inspection and copying at (1) Related solely to the internal per- the Headquarters Library. [Beginning sonnel rules and practices of the Postal on or before December 31, 1999, the Service. index also will be available at the Post- (2) Trade secrets, or privileged or al Service’s world wide web site.] confidential commercial or financial (5) Public index. (i) A public index is information, obtained from any person. maintained in the Headquarters Li- (3) Information of a commercial na- brary and at the world wide web site of ture, including trade secrets, whether all final opinions and orders made by or not obtained from a person outside the Postal Service in the adjudication the Postal Service, which under good of cases, Postal Service policy state- business practice would not be publicly ments which may be relied on as prece- disclosed. This class includes, but is dents in the disposition of cases, ad- not limited to: ministrative staff manuals and instruc- (i) Information pertaining to meth- tions that affect the public, and other ods of handling valuable registered materials which the Postal Service mail. elects to index and make available to (ii) Records of money orders, except the public on request in the manner set as provided in R900 of the Domestic Mail forth in paragraph (a) of this section. Manual (DMM). (ii) The index contains references to (iii) Technical information con- matters issued after July 4, 1967, and cerning postage meters and prototypes may reference matters issued prior to submitted for Postal Service approval that date. prior to leasing to mailers.

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(iv) Reports of market surveys con- (i) Could reasonably be expected to ducted by or under contract in behalf interfere with enforcement proof the Postal Service. ceedings; (v) Records indicating rural carrier (ii) Would deprive a person of a right lines of travel. to a fair trial or an impartial adjudica- (vi) Records compiled within the tion; Postal Service which would be of po- (iii) Could reasonably be expected to tential benefit to persons or firms in constitute an unwarranted invasion of economic competition with the Postal personal privacy; Service. (iv) Could reasonably be expected to (vii) Information which, if publicly disclose the identity of a confidential disclosed, could materially increase source, including a State, local, or for- procurement costs. eign agency or authority or any pri- (viii) Information which, if publicly vate institution which furnished infor- disclosed, could compromise testing or mation on a confidential basis, and, in examination materials. the case of a record or information (4) Interagency or internal memo- compiled by a criminal law enforce- randa or letters that would not be ment authority (such as the Postal In- available by law to a private party in spection Service) in the course of a litigation with the Postal Service. criminal investigation, or by an agency (5) Reports and memoranda of con- conducting a lawful national security sultants or independent contractors, intelligence investigation, information except to the extent they would be re- furnished by a confidential source; quired to be disclosed if prepared with- (v) Would disclose techniques and in the Postal Service. procedures for law enforcement inves- (6) Files personal in nature, including tigations or prosecutions, or would dis- medical and personnel files, the disclo- close guidelines for law enforcement sure of which would constitute a clear- investigations or prosecutions if such ly unwarranted invasion of personal disclosure could reasonably be ex- privacy. pected to risk circumvention of the (7) Information prepared for use in law; or connection with proceedings under (vi) Could reasonably be expected to chapter 36 of title 39, U.S.C., relating endanger the life or physical safety of to rate, classification, and service any individual. changes. (2) Whenever a request is made which (8) Information prepared for use in involves access to records described in connection with the negotiation of col- § 265.6(c)(1)(i), and lective bargaining agreements under (i) The investigation or proceeding chapter 12 of title 39, U.S.C., or min- involves a possible violation of crimi- utes of, or notes kept during, negoti- nal law; and ating sessions conducted under such (ii) There is reason to believe that, chapter. (A) The subject of the investigation (9) Other matter specifically exempt- or proceeding is not aware of its pended from disclosure by statute. ency, and (c) Records or information compiled for (B) Disclosure of the existence of the law enforcement purposes. (1) Investiga- records could reasonably be expected to tory files compiled for law enforcement interfere with enforcement pro- purposes, whether or not considered ceedings, the Postal Service may, dur- closed, are exempt by statute from ing only such time as that cir- mandatory disclosure except to the ex- cumstance continues, treat the records tent otherwise available by law to a as not subject to the requirements of party other than the Postal Service, 39 the Freedom of Information Act. U.S.C. 410(c)(6). As a matter of policy, (3) Whenever informant records however, the Postal Service will nor- maintained by a criminal law enforce- mally make records or information ment agency (such as the Postal In- compiled for law enforcement purposes spection Service) under an informant’s available upon request unless the pro- name or personal identifier are reduction of these records: quested by a third party according to

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the informant’s name or personal iden- to members of the public. See para- tifier, the records may be treated as graph (e)(1) of this section.) not subject to the requirements of the (3) Name and address of postage evi- Freedom of Information Act unless the dencing user. The name and address of informant’s status as an informant has an authorized user of a postage meter been officially confirmed. or PC Postage product (postage evi- (4) Authority to disclose records or dencing systems) printing a specified information compiled for law enforce- indicium will be furnished to any per- ment purposes to persons outside the son upon the payment of any fees au- Postal Service must be obtained from thorized by paragraph (b) of § 265.9, pro- the Chief Postal Inspector, U.S. Postal vided the user is using the postage Service, Washington, DC 20260–2100, or meter or PC Postage product for busi- designee. ness purposes. The request for this in- (d) Disclosure of names and addresses of formation must be sent to the manager customers. Upon request, the names and of Postage Technology Management, addresses of specifically identified Postal Service Headquarters. The re- Postal Service customers will be made quest must include the original or a available only as follows: photocopy of the envelope or wrapper (1) Change of address. The new address on which the postage meter or PC post- of any specific customer who has filed age indicium in question is printed, a permanent or temporary change of and a copy or description of the con- address order (by submitting PS Form tents to support that the sender is a 3575, a hand-written order, or an elec- business or firm and not an individual. tronically communicated order) will be (Lists of authorized users of postage furnished to any person, except that meters or PC Postage products may the new address of a specific customer not be disclosed to members of the pub- who has indicated on the order that the lic.) address change is for an individual or (4) Post Office boxholder information. an entire family will be furnished only Information from PS Form 1093, Appli- in those circumstances stated at para- cation for Post Office Box or Caller Serv- graph (d)(5) of this section. Disclosure ice, will be provided as follows: will be limited to the address of the (i) Except as provided in paragraph specifically identified individual about (d)(4)(iii) of this section, the boxholder whom the information is requested applicant name and address from PS (not other family members or individ- Form 1093 will be provided only in uals whose names may also appear on those circumstances stated in para- the change of address order). The Post- graphs (d)(5)(i) through (d)(5)(iii) of al Service reserves the right not to dis- this section. close the address of an individual for (ii) Except as provided in paragraph the protection of the individual’s per- (d)(4)(iii) of this section, the names of sonal safety. Other information on PS persons listed as receiving mail, other Form 3575 or copies of the form will not than the boxholder applicant, will be be furnished except in those cir- furnished from PS Form 1093 only in cumstances stated at paragraphs those circumstances stated in para- (d)(5)(i), (d)(5)(iii), or (d)(5)(iv) of this graphs (d)(5)(i) and (d)(5)(iii) of this section. section. (2) Name and address of permit holder. (iii) When a copy of a protective The name and address of the holder of order has been filed with the post- a particular bulk mail permit, permit master, information from PS Form 1093 imprint or similar permit (but not in- will not be disclosed except pursuant to cluding postage meter licenses), and the order of a court of competent juris- the name of any person applying for a diction. permit in behalf of a holder will be fur- (5) Exceptions. Except as otherwise nished to any person upon the payment provided in these regulations, names or of any fees authorized by paragraph (b) addresses of Postal Service customers of § 265.9. For the name and address of will be furnished only as follows: a postage meter license holder, see (i) To a federal, state or local govern- paragraph (d)(3) of this section. (Lists ment agency upon prior written certifi- of permit holders may not be disclosed cation that the information is required

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for the performance of its duties. The NOTE: The term pro se means that a party Postal Service requires government is not represented by an attorney but by agencies to use the format appearing at himself or herself. the end of this section when requesting (iii) In compliance with a subpoena the verification of a customer’s current or court order, except that change of address or a customer’s new mailing address or boxholder information address. If the request lacks any of the which is not otherwise subject to dis- required information or a proper signa- closure under these regulations may be ture, the postmaster will return the re- disclosed only pursuant to a court quest to the agency, specifying the de- order. ficiency in the space marked ‘OTHER’. (iv) To a law enforcement agency, for A copy of PS Form 1093 may be pro- oral requests made through the Inspec- vided. tion Service, but only after the Inspec- (ii) To a person empowered by law to tion Service has confirmed that the in- serve legal process, or the attorney for formation is needed in the course of a a party in whose behalf service will be criminal investigation. (All other re- made, or a party who is acting pro se, quests from law enforcement agencies upon receipt of written information should be submitted in writing to the that specifically includes all of the fol- postmaster as in paragraph (d)(5)(i) of lowing: (A) A certification that the this section.) name or address is needed and will be (6) Jury service. The mailing address used solely for service of legal process of any customer sought in connection in connection with actual or prospec- with jury service, if known, will be fur- tive litigation; (B) a citation to the nished without charge upon prior writ- statute or regulation that empowers ten request to a court official, such as the requester to serve process, if the a judge, court clerk or jury commis- requester is other than the attorney sioner. for a party in whose behalf service will (7) Address verification. The address of be made, or a party who is acting pro a postal customer will be verified at se; (C) the names of all known parties the request of a Federal, State, or local to the litigation; (D) the court in which government agency upon written cer- the case has been or will be com- tification that the information is re- menced; (E) the docket or other identi- quired for the performance of the agen- fying number, if one has been issued; cy’s duties. ‘‘Verification’’ means advis- and (F) the capacity in which the ing such an agency whether or not its boxholder is to be served, e.g., defend- address for a postal customer is one at ant or witness. By submitting such in- which mail for that customer is cur- formation, the requester certifies that rently being delivered. ‘‘Verification’’ it is true. The address of an individual neither means nor implies knowledge who files with the postmaster a copy of on the part of the Postal Service as to a protective court order will not be dis- the actual residence of the customer or closed except as provided under para- as to the actual receipt by the cus- graphs (d)(5)(i), (d)(5)(iii), or (d)(5)(iv) tomer of mail delivered to that ad- of this section. A copy of Form 1093 dress. The Postal Service requires gov- will not be provided. ernment agencies to use the format ap- The Postal Service suggests use of pearing at the end of this section when the standard format appearing at the requesting the verification of a cus- end of this section when requesting in- tomer’s current address or a cus- formation under this paragraph. When tomer’s new mailing address. If the re- using the standard format on the sub- quest lacks any of the required infor- mitter’s own letterhead, the standard mation or a proper signature, the post- format must be used in its entirety. master will return the request to the The warning statement and certifi- agency, specifying the deficiency in the cation specifically must be included space marked ‘‘OTHER’’. immediately before the signature (8) Business/Residence location. If the block. If the request lacks any of the location of a residence or a place of required information or a proper signa- business is known to a Postal Service ture, the postmaster will return it to employee, whether as a result of offi- the requester specifying the deficiency. cial duties or otherwise, the employee

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may, but need not, disclose the loca- authorized by Executive Order 12356 tion or give directions to it. No fee is and implementing regulations to be charged for such information. kept secret in the interest of the na- (9) Private mailbox information. Infor- tional defense or foreign policy are not mation from PS Form 1583, Application subject to disclosure pursuant to this for Delivery of Mail Through Agent, will part. be provided as follows: (3) Records consisting of trade se- (i) Except as provided in paragraph crets or confidential financial data, the (d)(9)(iii) of this section, information disclosure of which is prohibited by from PS Form 1583 will be provided only in the circumstance stated in section 1905 of title 18, U.S.C., are not paragraph (d)(5)(iii) of this section. subject to disclosure pursuant to this (ii) To the public only for the purpose part. of identifying a particular address as (4) Other records, the disclosure of an address of an agent to whom mail is which is prohibited by statute, are not delivered on behalf of other persons. No subject to disclosure pursuant to this other information, including, but not part. limited to, the identities of persons on (f) Protection of the right of privacy. If whose behalf agents receive mail, may any record required or permitted by be disclosed to the public from PS this part to be disclosed contains the Form 1583. name of, or other identifying details (iii) Information concerning an indi- concerning, any person, including an vidual who has filed a protective court employee of the Postal Service, the order with the postmaster will not be disclosure of which would constitute a disclosed except pursuant to the order clearly unwarranted invasion of per- of a court of competent jurisdiction. sonal privacy, the name or other iden- (e) Information not available for public tifying details shall be deleted before disclosure. (1) Except as provided by paragraph (a)(6) of this section, the the record is disclosed and the re- Postal Service and its officers and em- quester so informed. ployees shall not make available to the (g) Disclosure in part of otherwise ex- public by any means or for any purpose empt record. Any reasonably segregable any mailing list or other list of names portion of a record shall be provided or addresses (past or present) of postal after deleting the information which is patrons or other persons. neither subject to mandatory disclo- (2) Records or other documents which sure nor available as a matter of dis- are classified or otherwise specifically cretion.

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[40 FR 7331, Feb. 19, 1975]

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 265.6, see the List of CFR Sec- tions Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§ 265.7 Procedure for inspection and Request’’ or otherwise be clearly and copying of records. prominently identified as a request for (a) Submission of requests—(1) Form records pursuant to the Freedom of In- and content of request. To permit expe- formation Act. A request shall be ditious handling and timely response in clearly and prominently identified as accordance with the provisions of this such on the envelope or other cover. part, a request to inspect or to obtain Other requests for information will be a copy of an identifiable Postal Service considered informal requests and will record shall be in writing and bear the be handled as expeditiously as prac- caption ‘‘Freedom of Information Act ticable but not necessarily within the 108

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time limitations set forth in § 265.7(b). whole or in part. A fee waiver request An informal request will be granted or shall indicate how the information will denied according to the substantive be used; to whom it will be provided; rules in § 265.6, if found to be a request whether the requester intends to use for a record. A Freedom of Information the information for resale at a fee Act request shall identify the record above actual cost; any personal or com- sought as completely as possible, by mercial benefit that the requester ex- name, description, or subject matter, pects as a result of disclosure; in what and be sufficient to permit the custo- manner the general public will benefit dian to locate it with a reasonable from disclosure; and information as to amount of effort. The request may the intended user’s identity, qualifica- state the maximum amount of fees for tions, expertise in the subject area, and which the requester is willing to accept ability and intention to disseminate liability without prior notice. See the information to the public. (See paragraph (f)(2) of § 265.8. If no amount § 265.9(g)(3).) is stated, the requester will be deemed (5) Categorical requests. A request for willing to accept liability for fees not all or substantially all of the records to exceed $25. within a specific category will be (2) To whom submitted. A request shall deemed a reasonable description of be submitted to the custodian of the those records only if it is possible, requested record. If the location of the without further information, to deter- record is not known, inquiry should be mine which particular records are directed to the Manager, Records Of- sought. See paragraph (b)(3) of this sec- fice, U.S. Postal Service, 475 L’Enfant tion concerning the providing of addi- Plaza, SW., Washington, DC 20260, tele- tional information. phone (202) 268–2608. If a request is sub- (6) Request for records located at nu- mitted to a facility other than that at merous facilities. A request for records which the record is maintained, it shall which are, or may be, located at all or be promptly transmitted to the appro- a substantial number of post offices or priate custodian with a copy of the other postal facilities will be deemed transmittal furnished to the requester. to be a reasonable description only of A request which is not initially sub- such of those records as are maintained mitted to the appropriate custodian at the post office or other facility to shall be deemed to have been received which the request is submitted, and of by the Postal Service for purposes of those records maintained at any other computing the time for response is ac- post offices or facilities specifically cordance with § 265.7(b) at the time identified in the request. See paragraph that it is actually received by the ap- (a)(2) of this section concerning the propriate custodian. If a request seeks custodian of records of two or more fa- records maintained at two or more facilities. cilities, the custodian shall be deemed (b) Responsibilities of the custodian. (1) to be the next senior common super- The custodian of the requested record visor of the heads of the facilities, e.g., is the person responsible for deter- district manager, area vice president. mining whether to comply with or to The Records Office is deemed to be the deny the request. A custodian who is custodian, for purposes of this part, in not an Officer as defined in § 221.8 of all instances in which a request is for a this chapter, however, should not deny listing of postal employees. See a request until he has obtained the ad- § 265.6(a)(6). vice of Chief Field Counsel. If denial of (3) Reasons for request. In view of the a request appears necessary, the custo- possibility that some or all of the dian should seek advice as soon as pos- records may be exempt from manda- sible after receipt of the request so as tory disclosure, the requester may to provide adequate time for legal re- state any reasons why the record view. Denial must be made in accord- should nevertheless be made available ance with paragraph (d) of this section. to him even if exempt. (2) The custodian shall make the de- (4) Request for waiver of fees. The re- termination whether to release or deny quester may ask that fees or the ad- the record(s) within 20 working days vance payment of fees be waived in (i.e., exclusive of Saturdays, Sundays,

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and holidays) of receiving the request, (6) When the custodian finds that the and more rapidly if feasible. The custo- additional time is required, he shall ac- dian and the requester may, by mutual knowledge the request in writing with- agreement, preferably in writing, es- in the initial 20-day response period, tablish a different response period. state the reason for the delay, and indi- (3) If a requested record cannot be locate the date on which a decision as to cated from the information supplied, disclosure is expected. the requester should be given an oppor- (7) If a request cannot be processed tunity to supply additional informa- within the additional time provided by tion and, if feasible, to confer with the paragraph (b)(5) of this section, in spite custodian or his/her representative, in of the exercise of due diligence, the an attempt to provide a reasonable de- custodian shall notify the requester of scription of the records sought. If addi- the exceptional circumstances pre- tional information is furnished, the re- venting timely compliance and of the quest will be deemed to have been re- date by which it is expected that the ceived by the custodian when sufficient determination will be made. The custo- additional information to identify and dian also shall provide the requester an locate the record with a reasonable opportunity to limit the scope of the amount of effort has been received. request so that it may be processed (4) The custodian shall make reason- within the extended time limit, or an able efforts to search for the records in opportunity to arrange with the custo- electronic form or format, except when dian an alternative time frame for such efforts would significantly inter- processing the request or a modified re- fere with the operation of the auto- quest. The custodian shall nonetheless mated information system. make a determination on the request as promptly as possible. (5) The 20 working day response pe- (8) If a requested record is known to riod allowed in paragraph (b)(2) of this have been destroyed, disposed of, or section may be extended by the custo- otherwise not to exist, the requester dian, after consultation with Chief shall be so notified. Field Counsel or with the General (c) Compliance with request upon af- Counsel if the custodian is at Head- firmative determination by custodian. (1) quarters, for a period not to exceed an When a requested record has been iden- additional 10 working days, except as tified and is to be disclosed in whole or provided in paragraph (b)(7) of this sec- in part, the custodian shall ensure that tion, when, and to the extent, reason- the record is made available promptly ably necessary to permit the proper and shall immediately notify the re- processing of a particular request, quester where and when and under under one or more of the following un- what reasonable conditions, if any, in- usual circumstances: cluding the payment of fees, the record (i) The request requires a search for will be available for inspection or cop- and collection of records from a facil- ies will be available. Postal Service ity other than that processing the re- records will normally be available for quest. inspection and copying during regular (ii) The request requires the search business hours at the postal facilities for, and collection and appropriate ex- at which they are maintained. The cus- amination of, a voluminous amount of todian may, however, designate other separate and distinct records. reasonable locations and times for in- (iii) The request requires consulta- spection and copying of some or all of tion: the records within his custody. (A) With another agency having a (2) Any fees authorized or required to substantial interest in the determina- be paid in advance by § 265.9(f)(3) shall tion of whether to comply with the re- be paid by the requester before the quest or record is made available or a copy is (B) Among two or more components furnished unless payment is waived or of the Postal Service having substan- deferred pursuant to § 265.9(g). tial subject matter interest in the de- (3) A custodian complying with a re- termination of whether to comply with quest may designate a representative the request. to monitor any inspection or copying.

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(d) Denial of request. (1) A reply deny- Counsel may, in his discretion, con- ing a request in whole or in part shall sider late appeals. be in writing, signed by the custodian (3) In the event of the denial of a re- or his designee, and shall include: quest or of other action or failure to (i) A statement of the reason for, or act on the part of a custodian from justification of, the denial (e.g., which no appeal is taken, the General records personal in nature), including, Counsel may, if he considers that there if applicable, a reference to the provi- is doubt as to the correctness of the sion or provisions of § 265.6 authorizing custodian’s action or failure to act, re- the withholding of the record and a view the action or failure to act as brief explanation of how each provision though an appeal pursuant to this sec- applies to the records requested. tion had been taken. (ii) If entire records or pages are (4) A letter of appeal should include, withheld, a reasonable estimate of the as applicable: number of records or pages, unless pro- (i) A copy of the request, of any noti- viding such estimate would harm an in- fication of denial or other action, and terest protected by the exemption re- of any other related correspondence; lied upon. (ii) A statement of the action, or fail- (iii) A statement of the right to ap- ure to act, from which the appeal is peal and of the appeal procedure within taken; the Postal Service (described in para- (iii) A statement of the reasons why graph (e) of this section). the requester believes the action or (2) The custodian is ordinarily the failure to act is erroneous; and person responsible for the denial of the (iv) A statement of the relief sought. request. If the denial of a particular re- (f) Action on appeals. (1) The decision quest has been directed by higher au- of the General Counsel or his designee thority, however, the name and title or constitutes the final decision of the position of the person directing the de- Postal Service on the right of the re- nial shall be given in the reply to the quester to inspect or copy a record, or requester in place of the custodian as to expedited processing of the request, the person responsible for the denial, as appropriate. The General Counsel and a copy of the denial shall be sent will give prompt consideration to an to that person. appeal for expedited processing of a re- (3) When information is deleted from quest. All other decisions normally will a record that is disclosed in part, the be made within 20 working days from custodian shall indicate, on the re- the time of the receipt by the General leased portion of the record, the Counsel. The 20-day response period amount of information deleted, unless may be extended by the General Coun- including that indication would harm sel or his designee for a period not to an interest protected by the exemption exceed an additional 10 working days relied on. The indication must appear, when reasonably necessary to permit if technically feasible, at the place in the proper consideration of an appeal, the record where such deletion is made. under one or more of the unusual cir- (e) Appeal procedure. (1) If a request cumstances set forth in paragraph to inspect or to copy a record, or a re- (b)(5) of this section. The aggregate quest for expedited processing of the number of additional working days uti- request, is denied, in whole or in part, lized pursuant to this paragraph (f)(1) if no determination is made within the and paragraph (b) of this section, how- period prescribed by this section, or if ever, may not exceed 10. a request for waiver of fees is not (2) The decision on the appeal shall granted, the requester may appeal to be in writing. If the decision sustains a the General Counsel, U.S. Postal Serv- denial of a record, in whole or in part, ice, Washington, DC 20260–1100. or if it denies expedited processing, it (2) The requester shall submit his ap- shall state the justification therefor peal in writing within 30 days of the and shall inform the requester of his date of the denial or of the other action right to judicial review. In the case of complained of, or within a reasonable records withheld, the decision also time if the appeal is from a failure of shall specify any exemption or exemp- the custodian to act. The General tions relied on and the manner in

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which they apply to the record, or por- § 265.8 Business information; proce- tion thereof, withheld. dures for predisclosure notification (3) If not prohibited by or under law, to submitters. the General Counsel or his designee (a) In general. This section provides a may direct the disclosure of a record procedure by which persons submitting even though its disclosure is not re- business information to the Postal quired by law or regulation. Service can request that the informa- (g) Expedited processing—(1) Criteria. A tion not be disclosed pursuant to a re- request for expedited processing of a quest under the Freedom of Informa- request for records shall be granted tion Act. This section does not affect when the requester demonstrates com- the Postal Service’s right, authority, or obligation to disclose information in pelling need. For purposes of this para- any other context, nor is it intended to graph, compelling need exists if: ‘‘ ’’ create any right or benefit, substantive (i) Failure of the requester to obtain or procedural, enforceable at law by a the records on an expedited basis could party against the Postal Service, its of- reasonably be expected to pose an im- ficers, or any person. Existing rights of minent threat to the life or physical submitters are also unaffected. For safety of an individual or; purposes of this section, the following (ii) In the case of a request made by definitions apply: a person primarily engaged in dissemi- (1) Business information means com- nating information, there is an ur- mercial or financial information pro- gency to inform the public concerning vided directly or indirectly to the Post- actual or alleged federal government al Service by a submitter that argu- activity. ably is protected from disclosure under (2) Request. A request for expedited Exemption 4 of the Freedom of Infor- processing shall be directed in writing mation Act, 5 U.S.C. 552(b)(4), which is to the records custodian. The requester restated in § 265.6(b)(2). must provide information in sufficient (2) Submitter means any person or en- detail to demonstrate compelling need tity who provides business information, directly or indirectly, to the for the records and certify this state- Postal Service. The term includes, but ment to be true and correct to the best is not limited to, corporations, state of the requester’s knowledge and belief. governments, and foreign governments. The custodian may waive the formality (b) Notice to submitters. (1) The custo- of certification when deemed appro- dian shall, to the extent permitted by priate. law, provide a submitter with prompt (3) Determination. The records custo- written notice of a Freedom of Infor- dian shall make a determination of mation Act request for the submitter’s whether to provide expedited proc- business information whenever re- essing and notify the requester within quired under paragraph (c) of this sec- ten days after the date of the request tion, except as provided in paragraph for expedited processing. If the request (d) of this section, in order to afford is granted, the records custodian shall the submitter an opportunity to object process the request for records as soon to disclosure pursuant to paragraph (f) as practicable. If the request for expe- of this section. Such written notice dited processing is denied, the written shall either describe the exact nature response will include the procedures at of the business information requested paragraph (d) of this section for appeal- or provide copies of the records or por- ing the denial. tions of records containing the business information. In the case of an ad- [40 FR 7331, Feb. 19, 1975, as amended at 45 ministrative appeal, the General Coun- FR 44271, July 1, 1980; 47 FR 20304, May 12, sel shall be responsible for providing 1982; 51 FR 26386, July 23, 1986; 52 FR 13668, such notification as may be appro- Apr. 24, 1987; 60 FR 57345, Nov. 15, 1995; 62 FR priate under this section. 64282, Dec. 5, 1997; 63 FR 6482, Feb. 9, 1998; 64 (2) When notice is given to a sub- FR 41290, July 30, 1999; 68 FR 56559, Oct. 1, mitter under paragraph (b)(1) of this 2003; 69 FR 34935, June 23, 2004] section, the requester also shall be notified that notice and an opportunity

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to object are being provided to the sub- (2) At the time a designation is made mitter pursuant to this section. pursuant to paragraph (e)(1) of this sec- (c) When notice is required. Notice tion, the submitter shall furnish the shall be given to a submitter whenever: Postal Service with the name, title, ad- (1) The submitter has in good faith dress and telephone number of the per- designated the information as informa- son or persons to be contacted for the tion deemed protected from disclosure purpose of the notification described in under Exemption 4, in accordance with paragraph (b) of this section. the procedure described in paragraph (3) Submitters who provide to a post- (e) of this section; or al facility business information on a (2) In the opinion of the custodian, or recurring basis and in substantially of the General Counsel in the case of an identical form may use the following administrative appeal, it is likely that simplified process: The first submission disclosure of the information would re- will provide in full the information result in competitive harm to the sub- quired in paragraphs (e)(1) and (2) of mitter. this section; shall identify the type of (d) Exceptions to notice requirements. information, e.g., PS Form 3602, to The notice requirements of paragraph which it is intended to apply; and shall (b) of this section shall not apply if: state that it is intended to serve as a (1) The Postal Service determines designation for all of the information without reference to the submitter of this type that is submitted to the that the information will not be dis- particular facility. Thereafter when closed; providing this type of information, the (2) The information lawfully has been submitter need only mark a submission published or has been officially made with a reference to the designation, available to the public; e.g., Privileged: see letter of 4–1–91. By (3) Disclosure of the information is written agreement with the head of the required by law (other than the Free- facility, even this marking may be dis- dom of Information Act, 5 U.S.C. 552); pensed with if it is not necessary to or alert postal employees at that facility (4) Disclosure of the particular kind of the claim of exemption. of information is required by a Postal (4) A designation made pursuant to Service regulation, except that, in such paragraph (e) of this section shall be case, advance written notice of a deci- deemed to have expired ten years after sion to disclose shall be provided to the the date the records were submitted submitter if the submitter had pro- unless the submitter requests, and provided written justification for protec- vides reasonable justification for, a tion of the information under Exemp- designation period of greater duration. tion 4 at the time of submission or a (5) The Postal Service will not deter- reasonable time thereafter. mine the validity of any request for (e) Procedure for designating business confidential treatment until a request information at the time of its submission. for disclosure of the information is re- (1) Submitters of business information ceived. shall use good-faith efforts to des- (f) Opportunity to object to disclosure. ignate, by appropriate markings, either Through the notice described in para- at the time of submission or at a rea- graph (b) of this section, the submitter sonable time thereafter, those portions shall be afforded a reasonable period of of their submissions which they deem time within which to provide the Post- to be protected from disclosure under al Service with a detailed written Exemption 4. Each record, or portion statement of any objection to disclo- thereof, to be so designated, shall be sure. Such statement shall specify all clearly marked with a suitable legend grounds for withholding any of the in- such as Privileged Business Informa- formation under any exemption of the tion—Do Not Release. When the des- Freedom of Information Act and, in the ignated records contain some informa- case of Exemption 4, shall demonstrate tion for which an exemption is not why the information is contended to be claimed, the submitter shall clearly in- a trade secret or commercial or finan- dicate the portions for which protec- cial information that is privileged or tion is sought. confidential. Whenever possible, the

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submitter’s claim of confidentiality § 265.9 Schedule of fees. should be supported by a statement or (a) Policy. The purpose of this section certification by an officer or author- is to establish fair and equitable fees to ized representative of the submitter permit the furnishing of records to that the information in question is in members of the public while recovering fact confidential, has not been dis- the full allowable direct costs incurred closed to the public by the submitter, by the Postal Service. The Postal Serv- and is not routinely available to the ice will use the most efficient and least public from other sources. Information costly methods available to it when provided by a submitter pursuant to complying with requests for records. this paragraph may itself be subject to (b) Standard rates—(1) Record retrieval. disclosure under the FOIA. Searches may be done manually or by (g) Determination that confidential computer using existing programming. treatment is warranted. If the custodian (i) Manual search. The fee for a man- determines that confidential treatment ual search is $32 per hour (fractions of is warranted for any part of the re- an hour are rounded to the nearest half quested records, he shall inform the re- hour). quester in writing in accordance with (ii) Computer search. The fee for re- the procedures set out in § 265.7(d) of trieving data by computer is the actual this chapter, and shall advise the redirect cost of the retrieval, including quester of the right to appeal. A copy computer search time, and personnel of the letter of denial shall also be pro- cost in effect at the time that the re- vided to the submitter of the records in trieval services are performed. The fees any case in which the submitter had are subject to periodic revision. A copy been notified of the request pursuant of the fees are included within the pub- to paragraph (c) of this section. lic index. (See appendix A.) (h) Notice of intent to disclose. The cus- (2) Duplication. (i) Except where oth- todian, in the case of an initial request, erwise specifically provided in postal or the General Counsel, in the case of regulations, the fee for duplicating any an appeal, shall consider carefully a record or publication is $.15 per page. submitter’s objections and specific (ii) The Postal Service may at its dis- grounds for nondisclosure prior to de- cretion make coin-operated copy ma- termining whether to disclose business chines available at any location or oth- information. In the event of a decision erwise give the requester the oppor- to disclose business information over tunity to make copies of Postal Service the objection of the submitter, the sub- records at his own expense. Unless au- mitter shall be furnished a written no- thorized by the Records Office, how- tice which shall include: ever, no off-site copying shall be per- (1) A description of the business in- mitted of records which, if lost, could formation to be disclosed; not be replaced without inconvenience (2) A statement of the reasons for to the Postal Service. which the submitter’s disclosure objec- (iii) The Postal Service will normally tions were not sustained; and furnish only one copy of any record. If (3) The specific date upon which dis- duplicate copies are furnished at the closure will occur. Such notice of in- request of the requester, the $.15 per- tent to disclose shall be forwarded to page fee shall be charged for each copy the submitter a reasonable number of of each duplicate page without regard days prior to the specified disclosure to whether the requester is eligible for date and the requester shall be notified free copies pursuant to paragraph (c) or likewise. (g) of this section. At his or her discre- (i) Notice of FOIA lawsuit. Whenever a tion, when it is reasonably necessary requester brings suit seeking to compel because of a lack of adequate copying disclosure of business information, the facilities or other circumstances, the custodian may make the requested General Counsel shall promptly notify record available to the requester for in- the submitter. spection under reasonable conditions [56 FR 56934, Nov. 7, 1991] and need not furnish a copy thereof.

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(3) Review. The fee for reviewing (b)(2) of this section, except that the records located in response to a com- first 100 pages furnished in response to mercial use request is $32 per hour a particular request shall be furnished (fractions of an hour are rounded to the without charge. (See also the general nearest half hour). Only requesters who waiver provision in paragraph (g)(1) of are seeking documents for commercial this section.) To be eligible for the reuse may be charged for review. ‘‘Re- duction of fees applicable to this cat- view’’ is defined in paragraph (h)(4) of egory, the requester must meet the cri- this section; ‘‘commercial use’’ is de- teria in paragraph (h)(8) of this section, fined in paragraph (h)(5) of this section. and the request must not be made for a (4) Micrographics. Paragraphs (b) (1), commercial use. (2) and (3) of this section also apply to (4) All other requesters. Fees shall be information stored within micro- charged for search and duplication in graphic systems. accordance with paragraphs (b) (1) and (c) Four categories of fees to be charged. (2) of this section, except that the first For the purpose of assessing fees under this section, a requester shall be classi- 100 pages of duplication and the first fied into one of four categories: com- two hours of search time shall be fur- mercial use requesters; educational and nished without charge. (See also para- noncommercial scientific institutions; graphs (g)(1) and (g)(2) of this section.) representatives of the news media; and (d) Aggregating requests. When the all other requesters. Requesters in each custodian reasonably believes that a category must reasonably describe the requester is attempting to break a re- records sought. Fees shall be charged quest down into a series of requests in requesters in each category in accord- order to evade the assessment of fees, ance with the following. the custodian may aggregate the re- (1) Commercial use requesters. Fees quests and charge accordingly. The shall be charged to recover the full di- custodian shall not aggregate multiple rect costs of search, review and dupli- requests when the requests pertain to cation in accordance with the rates unrelated subject matter. Requests prescribed in paragraphs (b) (1) through made by more than one requester may (3) of this section, subject only to the be aggregated only when the custodian general waiver set out in paragraph has a concrete basis on which to con- (g)(1) of this section. The term ‘‘com- clude that the requesters are acting in mercial use request’’ is defined in para- concert specifically to avoid payment graph (h)(5). of fees. (2) Educational and noncommercial sci- (e) Other costs—(1) Publications. Publi- entific institutions. Fees shall be cations and other printed materials charged only for duplication in accord- may, to the extent that they are avail- ance with paragraph (b)(2) of this sec- able in sufficient quantity, be made tion, except that the first 100 pages fur- available at the established price, if nished in response to a particular re- any, or at cost to the Postal Service. quest shall be furnished without Fees established for printed materials charge. (See also the general waiver provision in paragraph (g)(1) of this pursuant to laws, other than the Free- section.) To be eligible for the reduc- dom of Information Act, that specifi- tion of fees applicable to this category, cally provide for the setting of fees for the requester must show that the re- particular types of records are not sub- quest is being made as authorized by ject to waiver or reduction under this and under the auspices of a qualifying section. institution and that the records are not (2) Other charges. When a response to sought for a commercial use, but are a request requires services or materials sought in furtherance of scholarly or other than the common one listed in scientific research. These institutions paragraph (b) of this section, the direct are defined in paragraphs (h)(6) and cost of such services or materials to (h)(7) of this section, respectively. the Postal Service may be charged, but (3) Representatives of the news media. only if the requester has been notified Fees shall be charged only for duplica- of the nature and estimated amount of tion in accordance with paragraph such cost before it is incurred.

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(f) Advance notice and payment of request. If the requester has no history fees—(1) Liability and payment. The re- of payment, the custodian may require quester is responsible, subject to limi- an advance payment of an amount up tations on liability provided by this to the full estimated charge before section, for the payment of all fees for commencing work on the request. services resulting from his request, (ii) When a requester has previously even if responsive records are not lo- failed to pay a fee in a timely fashion cated or are determined to be exempt (i.e., within 30 days of the date of the from disclosure. Checks in payment of billing), the requester shall be required fees should be made payable to ‘‘U.S. to pay the full amount owed, and to Postal Service.’’ make an advance payment of the full (2) Advance notice. To protect mem- amount of the estimated fee before bers of the public from unwittingly in- processing will begin on a new or pend- curring liability for unexpectedly large ing request. fees, the custodian shall notify the re- (iii) When advance payment is requester if the estimated cost is ex- quired under paragraphs (f)(3)(i) or (ii) pected to exceed $25. When search fees of this section, the time periods for re- are expected to exceed $25, but it can- sponding to the initial request or to an not be determined in advance whether appeal shall not run during the inter- any records will be located or made val between the date that notice of the available, the custodian shall notify requirement is transmitted and the the requester of the estimated amount date that the required payment or as- and of the responsibility to pay search surance of payment is received. fees even through records are not lo- (g) Restrictions on assessing fees—(1) cated or are determined to be exempt General waiver. No fees shall be charged from disclosure. The notification shall to any requester if they would amount, be transmitted as soon as possible after in the aggregate, for a request or a se- physical receipt of the request, giving ries of related requests, to $10 or less. the best estimate then available. It When the fees for the first 100 pages or shall include a brief explanatory state- the first two hours of search time are ment of the nature and extent of the excludable under paragraph (c) of this services upon which the estimate is section, additional costs will not be as- based and shall offer the requester an sessed unless they exceed $10. opportunity to confer with the custo- (2) Certain fees not charged—(i) All re- dian or his representative in an at- quests except those for commercial use. tempt to reformulate the request so as Fees shall not be charged for the first to meet his needs at lower cost. The 100 pages of duplication and the first time period for responding to the re- two hours of search time except when quest shall not run during the interval the request is for a commercial use as between the date such notification is defined in paragraph (h)(5) of this sec- transmitted and the date of receipt of tion. When search is done by computer, the requester’s agreement to bear the the fees to be excluded for the first two cost. No notification is required if the hours of search time shall be deter- request specifically states that what- mined on the basis of fee for computer ever cost is involved is acceptable or is searches then in effect. (See appendix acceptable up to a specified amount A.) Assessment of search fees will begin that covers estimated costs or if pay- at the point when the cost of the ment of all fees in excess of $25 has search (including the cost of personnel been waived. and computer processing time) reaches (3) Advance payment. Advance pay- the equivalent dollar amount of per- ment of fees shall not be required, ex- sonnel fees for 2 hours. cept: (i) When it is estimated that the (ii) Requests of educational and non- fees chargeable under this section are commercial scientific institutions, and likely to exceed $250. If the requester representatives of the news media. Fees has a history of prompt payment of shall not be charged for time spent FOIA fees, the custodian shall notify searching for records in response to re- the requester of the likely cost and ob- quests submitted by educational and tain satisfactory assurance of full pay- noncommercial scientific institutions ment before commencing work on the or representatives of the news media.

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(3) Public interest waiver. The custo- and the cost of operating duplicating dian shall waive a fee, in whole or in machinery. Not included in direct costs part, and any requirement for advance are overhead expenses such as costs of payment of such a fee, when he deter- space, and heating or lighting the facil- mines that furnishing the records is ity in which the records are stored. deemed to be in the public interest be- (2) Search includes all time spent cause it is likely to contribute signifi- looking for material that is responsive cantly to public understanding of the to a request, including page-by-page or operations or activities of the federal line-by-line identification of material government, and is not primarily in within documents. Searches may be the commercial interest of the re- done manually or by computer using quester. This waiver may be granted existing programming. A line-by-line notwithstanding the applicability of search will be conducted only when other fee reductions prescribed by this necessary to determine whether the section for requesters in certain cat- document contains responsive informa- egories. In determining whether disclo- tion and will not be employed in those sure is in the public interest for the instances in which duplication of the purposes of this waiver, the following entire document would be the less ex- factors may be considered: pensive and quicker method of com- (i) The relation of the records to the plying with a request. Search does not operations or activities of the Postal include review of material to deter- Services; mine whether the material is exempt (ii) The informative value of the in- from disclosure (see paragraph (h)(4) of formation to be disclosed; this section). (iii) Any contribution to an under- (3) Duplication refers to the process of standing of the subject by the general making a copy of a document nec- public likely to result from disclosure; essary to respond to a FOIA request. (iv) The significance of that con- Such copies can take the form of paper tribution to the public understanding copy, microform, audio-visual mate- of the subject; rials, or machine readable documenta- (v) The nature of the requester’s per- tion (e.g., magnetic tape or disk), sonal interest, if any, in the disclosure among others. The copy provided must requested; and be in a form that is reasonably usable (vi) Whether the disclosure would be by requesters. primarily in the requester’s commer- (4) Review refers to the process of ex- cial interest. amining documents located in response (4) Waiver by officer. Any officer of to a request that is for a commercial the Postal Service, as defined in § 221.8, use (see paragraph (h)(5) of this sec- his designee, or the Manager, Records tion) to determine whether any portion Office may waive in whole or in part of any document located is exempt any fee required by this part or the re- from mandatory disclosure. It also in- quirement for advance payment of any cludes processing any documents for fee. disclosure, e.g., doing all that is nec- (5) Fee for other services. Waivers do essary to excise them and otherwise not apply for fees for address correc- prepare them for release. Review does tion services performed in accordance not include time spent resolving gen- with section R900 of the Domestic Mail eral legal or policy issues regarding the Manual. application of exemptions. Charges (h) Definitions. As used in this sec- may be assessed only for the initial re- tion, the term: view, i.e., the first time the applica- (1) Direct costs include expenditures bility of a specific exemption is ana- actually incurred in searching for and lyzed. Costs for a subsequent review duplicating (and in the case of com- are properly assessable only when a mercial requesters, reviewing) docu- record or portion of a record withheld ments to respond to a FOIA request. solely on the basis of an exemption Direct costs include, for example, the later determined not to apply must be salary of the employee performing reviewed again to determine the appli- work (the basic rate of pay for the em- cability of other exemptions not pre- ployee plus a factor to cover benefits) viously considered.

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(5) Commercial use request refers to a ‘‘freelance’’ journalist will be regarded request from or on behalf of one who as a representative of the news media if seeks information for a use or purpose he can demonstrate a solid basis for ex- that furthers the commercial, trade, or pecting publication through a news or- profit interests of the requester or the ganization, even though not actually person on whose behalf the request is employed by it. This may be dem- made. In determining whether a re- onstrated either by a publication con- quest properly belongs in this cat- tract with the news organization or by egory, the Postal Service will look to the past publication record of the re- the use to which the requester will put quester. the documents requested. If the use is not clear from the request itself, or if [52 FR 13668, Apr. 24, 1987, as amended at 53 there is reasonable cause to doubt the FR 49983, Dec. 13, 1988; 54 FR 7417, Feb. 21, 1989. Redesignated at 56 FR 56934, Nov. 7, requester’s stated use, the custodian 1991, and amended at 56 FR 57805, Nov. 14, shall seek additional clarification from 1991; 59 FR 11550, Mar. 11, 1994; 60 FR 57345, the requester before assigning the re- Nov. 15, 1995; 64 FR 41290, July 30, 1999; 68 FR quest to this category. 56559, Oct. 1, 2003; 69 FR 34935, June 23, 2004] (6) Educational institution refers to a pre-school, a public or private elemen- § 265.10 Annual report. tary or secondary school, an institu- A report concerning the administration of graduate higher education, an tion of the Freedom of Information Act institution of undergraduate higher and this part will be submitted to the education, an institution of profes- Attorney General of the United States sional education, and an institution of on or before February 1 of each year, vocational education, which operates a with the first such report, for fiscal program or programs of scholarly re- year 1998, due on or before February 1, search. 1999. Data for the report will be col- (7) Noncommercial scientific institution lected on the basis of fiscal year that refers to an institution that is not op- begins on October 1 of each year. The erated on a ‘‘commercial’’ basis as that Attorney General, in consultation with term is defined in paragraph (h)(5) of the Director, Office of Management this section, and which is operated and Budget, will prescribe the form and solely for the purpose of conducting content of the report. The report will scientific research the results of which be made available to the public at the are not intended to promote any par- headquarters Library and on the Postal ticular product or industry. Service’s world wide web site at http:// (8) Representative of the news media re- www.usps.com/foia. fers to any person actively gathering news for an entity that is organized [63 FR 6483, Feb. 9, 1998, as amended at 68 FR and operated to publish or broadcast 56559, Oct. 1, 2003] news to the public. The term ‘‘news’’ means information that is about cur- § 265.11 Compliance with subpoena rent events or that would be of current duces tecum, court orders, and summonses. interest to the public. Requests by news organizations for information (a) Compliance with subpoena duces that will be used for the furtherance of tecum. (1) Except as required by Part the organization’s commercial inter- 262, produce other records of the Postal ests, rather than for the dissemination Service only in compliance with a sub- of news to the public, shall be consid- poena duces tecum or appropriate ered commercial use requests. Exam- court order. ples of news media entities include tel- (2) Time, leave, and payroll records of evision or radio stations broadcasting postal employees are subject to produc- to the public at large, and publishers of tion when a subpoena duces tecum or periodicals (but only in those instances appropriate court order has been prop- when they can qualify as disseminators erly served. The custodian of the of ‘‘news’’) who make their products records may designate a postal em- available for purchase or subscription ployee to present the records. The pres- by the general public. These examples entation by a designee rather than the are not intended to be all-inclusive. A employee named in the subpoena or

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court order must meet with the ap- any condition which would cause a pru- proval of the attorneys for each side. In dent physician to hesitate to inform a addition, such records may be released person of the exact nature and probable if authorized in writing by the em- outcome of his condition, release it in ployee. response to a subpoena or court order, (3) If the subpoena involves a job-con- or to the employee or to any person, nected injury, the records are under firm, or organization he authorizes in the exclusive jurisdiction of the Office writing. of Workers’ Compensation Programs, (c) If a Federal medical officer is not Department of Labor. Requests for au- available, refer the request to the Civil thorization to produce these records Service Commission regional office shall be addressed to: Office of Work- with the medical certificates or other ers’ Compensation Programs, U.S. De- medical reports concerned. partment of Labor, Washington, DC (5) Do not release any records con- 20210–0001. Also notify the attorney re- taining information as to the employ- sponsible for the issuance of the sub- ee’s security or loyalty. poena or court order. (6) Honor subpoenas or court orders (4) Employee medical records are pri- only when disclosure is authorized. marily under the exclusive jurisdiction (7) When authorized to comply with a of the U.S. Civil Service Commission. subpoena duces tecum, do not leave the The Commission has delegated author- original records with the court. ity to the Postal Service and to the (b) [Reserved] Commission’s Regional Directors to release medical information, in response [40 FR 7331, Feb. 19, 1975, as amended at 51 to proper requests and upon competent FR 26386, July 23, 1986; 56 FR 55824, Oct. 30, medical advice, in accordance with the 1991. Redesignated at 56 FR 56934, Nov. 7, following criteria: 1991; 60 FR 36712, July 18, 1995; 60 FR 57345, Nov. 15, 1995] (i) Except in response to a subpoena or court order, do not release any med- § 265.12 Demands for testimony or ical information about an employee to records in certain legal pro- any non-Federal entity or individual ceedings. without authorization from the em- (a) Scope and applicability of this sec- ployee. tion. (1) This section establishes proce- (ii) With authorization from the em- dures to be followed if the Postal Serv- ployee, the Area, Information Systems ice or any Postal Service employee re- Service Center, or Chief Field Counsel ceives a demand for testimony con- will respond as follows to a request cerning or disclosure of: from a non-Federal source for medical information: (i) Records contained in the files of (a) If, in the opinion of a Federal the Postal Service; medical officer, the medical informa- (ii) Information relating to records tion indicates the existence of a malig- contained in the files of the Postal nancy, a mental condition, or other Service; or condition about which a prudent physi- (iii) Information or records acquired cian would hesitate to inform a person or produced by the employee in the suffering from such a condition as to course of his or her official duties or its exact nature and probable outcome, because of the employee’s official sta- do not release the medical information tus. to the employee or to any individual (2) This section does not create any designated by him, except to a physi- right or benefit, substantive or proce- cian, designated by the employee in dural, enforceable by any person writing. If a subpoena or court order against the Postal Service. was issued, the responding official shall (3) This section does not apply to any caution the moving party as to the pos- of the following: sible dangers involved if the medical (i) Any legal proceeding in which the information is divulged. United States is a party; (b) If, in the opinion of a Federal (ii) A demand for testimony or medical officer, the medical informa- records made by either House of Con- tion does not indicate the presence of gress or, to the extent of matter within

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its jurisdiction, any committee or sub- (8) Testimony means statements made committee of Congress; in connection with a legal proceeding, (iii) An appearance by an employee including but not limited to state- in his or her private capacity in a legal ments in court or other forums, deposi- proceeding in which the employee’s tions, declarations, affidavits, or re- testimony does not relate to the em- sponses to interrogatories. ployee’s official duties or the functions (9) United States means the federal of the Postal Service; or government of the United States and (iv) A demand for testimony or any of its agencies, establishments, or records submitted to the Postal Inspec- instrumentalities, including the United tion Service (a demand for Inspection States Postal Service. Service records or testimony will be (c) Requirements for submitting a de- handled in accordance with rules in mand for testimony or records. (1) Ordi- § 265.11). narily, a party seeking to obtain (4) This section does not exempt a re- records from the Postal Service should quest from applicable confidentiality submit a request in accordance with requirements, including the require- the provisions of the Freedom of Infor- ments of the Privacy Act. 5 U.S.C. 552a. mation Act (FOIA), 5 U.S.C. 552, and (b) Definitions. The following defini- the Postal Service’s regulations imple- tions apply to this section: menting the FOIA at 39 CFR 265.1 (1) Adjudicative authority includes, through 265.9 or the Privacy Act, 5 but is not limited to, the following: U.S.C. 552a and the Postal Service’s (i) A court of law or other judicial fo- regulations implementing the Privacy rums, whether local, state, or federal; Act at 39 CFR 266.1 through 266.9. and (2) A demand for testimony or records issued pursuant to the rules (ii) Mediation, arbitration, or other governing the legal proceeding in forums for dispute resolution. which the demand arises must: (2) Demand includes a subpoena, sub- (i) Be in writing; poena duces tecum, request, order, or (ii) Identify the requested record and/ other notice for testimony or records or state the nature of the requested arising in a legal proceeding. testimony, describe the relevance of (3) Employee means a current em- the record or testimony to the pro- ployee or official of the Postal Service. ceeding, and why the information (4) General Counsel means the General sought is unavailable by any other Counsel of the United States Postal means; and Service, the Chief Field Counsels, or an (iii) If testimony is requested, con- employee of the Postal Service acting tain a summary of the requested testi- for the General Counsel under a delega- mony and a showing that no document tion of authority. could be provided and used in lieu of (5) Legal proceeding means: testimony. (i) A proceeding before an adjudica- (3) Procedures for service of demand tive authority; are made as follows: (ii) A legislative proceeding, except (i) Service of a demand for testimony for a proceeding before either House of or records (including, but not limited Congress or before any committee or to, personnel or payroll information) subcommittee of Congress; or relating to a current or former em- (iii) An administrative proceeding. ployee must be made in accordance (6) Private litigation means a legal with the applicable rules of civil proce- proceeding to which the United States dure on the employee whose testimony is not a party. is requested or the records custodian. (7) Records custodian means the em- The requester also shall deliver a copy ployee who maintains a requested of the demand to the District Manager, record. For assistance in identifying Customer Services and Sales, for all the custodian of a specific record, concurrent employees whose work location tact the Manager, Records Office, U.S. is within the geographic boundaries of Postal Service, 475 L’Enfant Plaza, the manager’s district, and any former SW., Washington, DC 20260, telephone employee whose last position was with- (202) 268–2608. in the geographic boundaries of the

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manager’s district. A demand for testi- employee’s testimony shall be limited mony or records must be received by to facts within the personal knowledge the employee whose testimony is re- of the employee. A Postal Service em- quested and the appropriate District ployee authorized to give testimony Manager, Customer Services and Sales, under this rule is prohibited from giv- at least ten (10) working days before ing expert or opinion testimony, an- the date the testimony or records are swering hypothetical or speculative needed. questions, or giving testimony with re- (ii) Service of a demand for testi- spect to privileged subject matter. The mony or records other than those de- General Counsel may waive the prohi- scribed in paragraph (c)(3)(i) of this bition of expert testimony under this section must be made in accordance paragraph only upon application and with the applicable rules of civil proce- showing of exceptional circumstances dure on the employee whose testimony and the request substantially meets is requested or the records custodian. the requirements of this section. The requester also shall deliver a copy (4) The General Counsel may estab- of the demand to the General Counsel, lish conditions under which the em- United States Postal Service, 475 ployee may testify. If the General L’Enfant Plaza, SW, Washington DC Counsel authorizes the testimony of an 20260–1100, or the Chief Field Counsel. A employee, the party seeking testimony demand for testimony or records must shall make arrangements for the tak- be received by the employee and the ing of testimony by those methods General Counsel or Chief Field Counsel that, in the General Counsel’s view, at least ten (10) working days before will least disrupt the employee’s offi- the date testimony or records are need- cial duties. For example, at the Gen- ed. eral Counsel’s discretion, testimony (d) Procedures followed in response to a may be provided by affidavits, answers demand for testimony or records. (1) After to interrogatories, written depositions, an employee receives a demand for tes- or depositions transcribed, recorded, or timony or records, the employee shall preserved by any other means allow- immediately notify the General Coun- able by law. sel or Chief Field Counsel and request (5) If a response to a demand for tes- instructions. timony or records is required before (2) An employee may not give testi- the General Counsel determines wheth- mony or produce records without the er to allow an employee to testify, the prior authorization of the General employee or counsel for the employee Counsel. (3)(i) The General Counsel may allow shall do the following: an employee to testify or produce (i) Inform the court or other author- records if the General Counsel deter- ity of the regulations in this section; mines that granting permission: and (A) Would be appropriate under the (ii) Request that the demand be rules of procedure governing the mat- stayed pending the employee’s receipt ter in which the demand arises and of the General Counsel’s instructions. other applicable laws, privileges, rules, (6) If the court or other authority de- authority, and regulations; and clines the request for a stay, or rules (B) Would not be contrary to the in- that the employee must comply with terest of the United States. The inter- the demand regardless of the General est of the United States includes, but is Counsel’s instructions, the employee or not limited to, furthering a public in- counsel for the employee shall respect- terest of the Postal Service and pro- fully decline to comply with the detecting the human and financial remand, citing United States ex rel. Touhy sources of the United States. v. Ragen, 340 U.S. 462 (1951), and the (ii) An employee’s testimony shall be regulations in this section. limited to the information set forth in (7) The General Counsel may request the statement described at paragraph the assistance of the Department of (c)(2) of this section or to such portions Justice or a U.S. Attorney where nec- thereof as the General Counsel deter- essary to represent the interests of the mines are not subject to objection. An Postal Service and the employee.

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(8) At his or her discretion, the Gen- Service to process and respond to the eral Counsel may grant a waiver of any demand; procedure described by this section, (ii) Costs of attendance of the em- where waiver is considered necessary ployee and agency attorney at any dep- to promote a significant interest of the osition, hearing, or trial; United States or for other good cause. (iii) Travel costs of the employee and (9) If it otherwise is permissible, the agency attorney; records custodian may authenticate, (iv) Costs of materials and equipment upon the request of the party seeking used to search for, process, and make disclosure, copies of the records. No available information. employee of the Postal Service shall (2) All costs for employee time shall respond in strict compliance with the be calculated on the hourly pay of the terms of a subpoena duces tecum un- employee (including all pay, allowance, less specifically authorized by the Gen- and benefits) and shall include the eral Counsel. hourly fee for each hour, or portion of (e) Postal Service employees as expert each hour, when the employee is in witnesses. No Postal Service employee travel, in attendance at a deposition, may testify as an expert or opinion hearing, or trial, or is processing or re- witness, with regard to any matter sponding to a request or demand. arising out of the employee’s official (3) At the discretion of the Postal duties or the functions of the Postal Service, where appropriate, costs may Service, for any party other than the be estimated and collected before testi- United States, except that in extraor- mony is given. dinary circumstances, the General (h) Acceptance of service. This section Counsel may approve such expert testi- does not in any way abrogate or modify mony in private litigation. A Postal the requirements of the Federal Rules Service employee may not testify as of Civil Procedure (28 U.S.C. Appendix) such an expert witness without the ex- regarding service of process. press authorization of the General Counsel. A litigant must obtain au- [60 FR 17224, Apr. 5, 1995, as amended at 60 FR 57345, Nov. 15, 1995; 64 FR 41291, July 30, thorization of the General Counsel be- 1999; 68 FR 56559, Oct. 1, 2003] fore designating a Postal Service employee as an expert witness. § 265.13 Compliance with subpoenas, (f) Substitution of Postal Service em- summonses, and court orders by ployees. Although a demand for testi- postal employees within the Inspec- mony may be directed to a named tion Service where the Postal Serv- Postal Service employee, the General ice, the United States, or any other Counsel, where appropriate, may des- federal agency is not a party. ignate another Postal Service em- (a) Applicability of this section. The ployee to give testimony. Upon request rules in this section apply to all fed- and for good cause shown (for example, eral, state, and local court proceedings, when a particular Postal Service em- as well as administrative and legisla- ployee has direct knowledge of a mate- tive proceedings, other than: rial fact not known to the substitute (1) Proceedings where the United employee designated by the Postal States, the Postal Service, or any Service), the General Counsel may per- other federal agency is a party; mit testimony by a named Postal Serv- (2) Congressional requests or sub- ice employee. poenas for testimony or documents; (g) Fees and costs. (1) The Postal Serv- (3) Consultative services and tech- ice may charge fees, not to exceed ac- nical assistance rendered by the In- tual costs, to private litigants seeking spection Service in executing its nor- testimony or records by request or de- mal functions; mand. The fees, which are to be cal- (4) Employees serving as expert wit- culated to reimburse fully the Postal nesses in connection with professional Service for processing the demand and and consultative services under 5 CFR providing the witness or records, may part 7001, provided that employees act- include, among others: ing in this capacity must state for the (i) Costs of time spent by employees, record that their testimony reflects including attorneys, of the Postal their personal opinions and should not

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be viewed as the official position of the to the Postal Inspection Service, stu- Postal Service; dent interns, contractors and employ- (5) Employees making appearances in ees of contractors who have access to their private capacities in proceedings Inspection Service information and that do not relate to the Postal Service records. (e.g., cases arising from traffic acci- (6) Inspection Service means the orga- dents, domestic relations) and do not nizational unit within the Postal Serv- involve professional or consultative ice as outlined in § 224.3 of this chapter. services; and (7) Inspection Service Legal Counsel is (6) When in the opinion of the Coun- an attorney authorized by the Chief sel or the Counsel’s designee, Office of Postal Inspector to give legal advice to the Chief Postal Inspector, it has been members of the Inspection Service. determined that it is in the best inter- (8) Inspection Service Manual is the di- est of the Inspection Service or in the rective containing the standard oper- public interest. ating procedures for Postal Inspectors (b) Purpose and scope. The provisions and certain Inspection Service employ- in this section limit the participation ees. of postal employees within or assigned (9) Nonpublic includes any material or to the Inspection Service, in private information not subject to mandatory litigation, and other proceedings in public disclosure under § 265.6(b). which the Postal Service, the United States, or any other federal agency is (10) Official case file means official not a party. The rules are intended to documents that relate to a particular promote the careful supervision of In- case or investigation. These documents spection Service resources and to re- may be kept at any location and do not duce the risk of inappropriate disclo- necessarily have to be in the same lo- sures that might affect postal oper- cation in order to constitute the file. ations. (11) Postal Inspector reports include all (c) Definitions. For the purposes of written reports, letters, recordings, or this section: other memorializations made in con- (1) Authorizing official is the person junction with the duties of a Postal In- responsible for giving the authoriza- spector. tion for release of documents or per- (12) Testify or testimony includes both mission to testify. in-person oral statements before any (2) Case or matter means any civil pro- body conducting a judicial or adminis- ceeding before a court of law, administrative proceeding and statements trative board, hearing officer, or other made in depositions, answers to inter- body conducting a judicial or adminis- rogatories, declarations, affidavits, or trative proceeding in which the United other similar documents. States, the Postal Service, or another (13) Third-party action means an ac- federal agency is not a named party. tion, judicial or administrative, in (3) Demand includes any request, which the United States, the Postal order, or subpoena for testimony or the Service, or any other federal agency is production of documents. not a named party. (4) Document means all records, pa- (d) Policy. (1) No current or former pers, or official files, including, but not employee within the Inspection Service limited to, official letters, telegrams, may testify or produce documents con- memoranda, reports, studies, calendar cerning information acquired in the and diary entries, graphs, notes, course of employment or as a result of charts, tabulations, data analyses, sta- his or her relationship with the Postal tistical or information accumulations, Service in any proceeding to which this records of meetings and conversations, section applies (see paragraph (a) of film impressions, magnetic tapes, com- this section), unless authorized to do puter discs, and sound or mechanical so. Authorization will be provided by: reproductions; (i) The Postal Inspector in Charge of (5) Employee or Inspection Service em- the affected field Division, or designee, ployee, for the purpose of this section for Division personnel and records, only, refers to a Postal Service em- after that official has determined ployee currently or formerly assigned through consultation with Inspection

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Service legal counsel that no legal ob- authorization, after consultation with jection, privilege, or exemption applies Inspection Service legal counsel. If the to such testimony or production of doc- requested information relates to con- uments. fidential investigative techniques, or (ii) The Chief Postal Inspector or des- release of the information would ad- ignee for Headquarters employees and versely affect the law enforcement mis- records, after that official has deter- sion of the Inspection Service, the sub- mined through consultation with In- poenaed official, through Inspection spection Service legal counsel, that no Service legal counsel, may request an legal objection, privilege, or exemption in camera, ex parte conference to deter- applies to such testimony or produc- mine the necessity for the release of tion of documents. the information. The entire Manual (2) Consideration shall be given to: should not be given to any party. (i) Statutory restrictions, as well as (7) Notes, memoranda, reports, tran- any legal objection, exemption, or scriptions, whether written or recorded privilege that may apply; and made pursuant to an official inves- (ii) Relevant legal standards for dis- tigation conducted by a member of the closure of nonpublic information and Inspection Service, are the property of documents; the Inspection Service and are part of (iii) Inspection Service rules and reg- the official case file, whether stored ulations and the public interest; with the official file. (iv) Conservation of employee time; (f) Compliance with summonses and and subpoenas ad testificandum. (1) If an In- (v) Prevention of the expenditure of spection Service employee is served Postal Service resources for private with a third-party summons or a sub- purposes. poena requiring an appearance in (3) If additional information is nec- court, contact should be made with In- essary before a determination can be spection Service legal counsel to deter- made, the authorizing official may, in mine whether and which exemptions or coordination with Inspection Service restrictions apply to proposed testi- legal counsel, request assistance from mony. Inspection Service employees the Department of Justice. are directed to comply with sum- (e) Compliance with subpoena duces monses, subpoenas, and court orders, tecum. (1) Except as required by part as to appearance, but may not testify 262 of this chapter, produce any other without authorization. record of the Postal Service only in (2) Postal Inspector reports or compliance with a subpoena duces records will not be presented during tecum or appropriate court order. testimony, in either state or federal (2) Do not release any record con- courts in which the United States, the taining information relating to an em- Postal Service, or another federal ployee’s security or loyalty. agency is not a party in interest, un- (3) Honor subpoenas and court orders less authorized by the Chief Postal In- only when disclosure is authorized. spector or the Postal Inspector in (4) When authorized to comply with a Charge of the affected field Division, subpoena duces tecum or court order, do who will make the decision after con- not leave the originals with the court. sulting with Inspection Service legal (5) Postal Inspector reports are con- counsel. If an attempt is made to com- sidered to be confidential internal doc- pel production, through testimony, the uments and shall not be released unless employee is directed to decline to there is specific authorization by the produce the information or matter and Chief Postal Inspector or the Inspector to state that it may be exempted and in Charge of the affected field Division, may not be disclosed or produced with- after consulting with Inspection Serv- out the specific approval of the Chief ice legal counsel. Postal Inspector or the Postal Inspec- (6) The Inspection Service Manual tor in Charge of the affected field Divi- and other operating instructions issued sion. The Postal Service will offer all to Inspection Service employees are possible assistance to the courts, but considered to be confidential and shall the question of disclosing information not be released unless there is specific for which an exemption may be

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claimed is a matter of discretion that the production of documents from an rests with the appropriate official. Inspection Service employee con- Paragraph (e) of this section covers the cerning official matters shall be served release of Inspection Service docu- in accordance with the applicable rules ments in cases where the Postal Serv- of civil procedure. A copy of the sub- ice or the United States is not a party. poena and affidavit or declaration, if (g) General procedures for obtaining In- not previously furnished, shall also be spection Service documents and testimony sent to the Chief Postal Inspector or from Inspection Service employees. (1) To the appropriate Postal Inspector in facilitate the orderly response to de- Charge. mands for the testimony of Inspection (4) Any Inspection Service employee Service employees and production of who is served with a demand shall documents in cases where the United promptly inform the Chief Postal In- States, the Postal Service, or another spector, or the appropriate Postal In- federal agency is not a party, all de- spector in Charge, of the nature of the mands for the production of nonpublic documents or testimony sought and all documents or testimony of Inspection relevant facts and circumstances. Service employees concerning matters (h) Authorization of testimony or pro- relating to their official duties and not duction of documents. (1) The Chief subject to the exemptions set forth in Postal Inspector or the Postal Inspec- paragraph (a) of this section shall be in tor in Charge of the affected field Divi- writing and conform to the require- sion, after consulting with Inspection ments outlined in paragraphs (g)(2) and Service legal counsel, shall determine (g)(3) of this section. whether testimony or the production of (2) Before or simultaneously with documents will be authorized. service of a demand described in para- (2) Before authorizing the requested graph (g)(1) of this section, the request- testimony or the production of docu- ing party shall serve on the Counsel, ments, the Chief Postal Inspector or Office of the Chief Postal Inspector, 475 the Postal Inspector in Charge of the L’Enfant Plaza SW., Washington, DC affected field Division shall consider 20260–2181, an affidavit or declaration the following factors: containing the following information: (i) Statutory restrictions, as well as (i) The title of the case and the forum any legal objection, exemption, or where it will be heard; privilege that may apply; (ii) The party’s interest in the case; (iii) The reasons for the demand; (ii) Relevant legal standards for dis- (iv) A showing that the requested in- closure of nonpublic information and formation is available, by law, to a documents; party outside the Postal Service; (iii) Inspection Service rules and reg- (v) If testimony is sought, a sum- ulations and the public interest; mary of the anticipated testimony; (iv) Conservation of employee time; (vi) If testimony is sought, a showing and that Inspection Service records could (v) Prevention of expenditures of gov- not be provided and used in place of the ernment time and resources solely for requested testimony; private purposes. (vii) The intended use of the docu- (3) If, in the opinion of the author- ments or testimony; and izing official, the documents should not (viii) An affirmative statement that be released or testimony should not be the documents or testimony is nec- furnished, that official’s decision is essary for defending or prosecuting the final. case at issue. (4) Inspection Service legal counsel (3) The Counsel, Office of the Chief may consult or negotiate with the Postal Inspector, shall act as agent for party or the party’s counsel seeking the receipt of legal process for demands testimony or documents to refine and for production of records or testimony limit the demand, so that compliance of Inspection Service employees where is less burdensome, or obtain informa- the United States, the Postal Service, tion necessary to make the determina- or any other federal agency is not a tion whether the documents or testi- party. A subpoena for testimony or for mony will be authorized. If the party

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or party’s counsel seeking the docu- properly issued or served, has been ments or testimony fails to cooperate withdrawn, discovery has been stayed; in good faith, preventing Inspection or Service legal counsel from making an (ii) Where the Postal Service will informed recommendation to the au- present a legal objection to furnishing thorizing official, that failure may be the requested information or testi- presented to the court or other body mony. conducting the proceeding as a basis (i) Inspection Service employees as ex- for objection. pert or opinion witnesses. No Inspection (5) Permission to testify or to release Service employee may testify as an ex- documents in all cases will be limited pert or opinion witness, with regard to to matters outlined in the affidavit or any matter arising out of the employ- declaration described in paragraph ee’s duties or functions at the Postal (g)(2) of this section or to such parts as Service, for any party other than the deemed appropriate by the authorizing United States, except that in extraor- official. dinary circumstances, the Counsel, Of- (6) If the authorizing official allows fice of the Chief Postal Inspector, may the release of documents or testimony approve such testimony in private liti- to be given by an employee, arrange- gation. An Inspection Service em- ments shall be made for the taking of ployee may not testify as such an ex- testimony or receipt of documents by pert or opinion witness without the ex- the least disruptive methods to the em- press authorization of the Counsel, Of- ployee’s official duties. Testimony fice of the Chief Postal Inspector. A may, for example, be provided by affi- litigant must first obtain authoriza- davits, answers to interrogatories, tion of the Counsel, Office of the Chief written depositions, or depositions Postal Inspector, before designating an transcribed, recorded, or preserved by Inspection Service employee as an ex- any other means allowable by law. pert or opinion witness. (i) While giving a deposition, the em- (j) Postal liability. This section is in- ployee may, at the option of the au- tended to provide instructions to In- thorizing official, be represented by In- spection Service employees and does spection Service legal counsel. not create any right or benefit, sub- (ii) While completing affidavits, or stantive or procedural, enforceable by other written reports or at any time any party against the Postal Service. during the process of preparing for tes- (k) Fees. (1) Unless determined by 28 timony or releasing documents, the U.S.C. 1821 or other applicable statute, employee may seek the assistance of the costs of providing testimony, in- Inspection Service legal counsel. cluding transcripts, shall be borne by (7) Absent written authorization the requesting party. from the authorizing official, the em- (2) Unless limited by statute, such ployee shall respectfully decline to costs shall also include reimbursement produce the requested documents, tes- to the Postal Service for the usual and tify, or, otherwise, disclose the re- ordinary expenses attendant upon the quested information. employee’s absence from his or her of- (8) If the authorization is denied or ficial duties in connection with the not received by the return date, the case or matter, including the employ- employee, together with counsel, where ee’s salary and applicable overhead appropriate, shall appear at the stated charges, and any necessary travel ex- time and place, produce a copy of this penses as follows: section, and respectfully decline to tes- (i) The Inspection Service is author- tify or produce any document on the ized to charge reasonable fees to par- basis of the regulations in this section. ties demanding documents or informa- (9) The employee shall appear as or- tion. Such fees, calculated to reim- dered by the subpoena, summons, or burse the Postal Service for the cost of other appropriate court order, unless: responding to a demand, may include (i) Legal counsel has advised the em- the costs of time expended by Inspec- ployee that an appearance is inappro- tion Service employees, including at- priate, as in cases where the subpoena, torneys, to process and respond to the summons, or other court order was not demand; attorney time for reviewing

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the demand and for legal work in con- 266.7 Appeal procedure. nection with the demand; expenses gen- 266.8 Schedule of fees. erated by equipment used to search for, 266.9 Exemptions. produce, and copy the requested infor- 266.10 Computer matching. mation; travel costs of the employee AUTHORITY: 39 U.S.C. 401; 5 U.S.C. 552a. and the agency attorney, including lodging and per diem where appro- § 266.1 Purpose and scope. priate. Such fees shall be assessed at This part is intended to protect indi- the rates and in the manner specified vidual privacy and affects all personal in § 265.9. information collection and usage ac- (ii) At the discretion of the Inspec- tivities of the entire U.S. Postal Serv- tion Service where appropriate, fees ice. This includes the information and costs may be estimated and col- interface of Postal Service employees lected before testimony is given. to other employees, to individuals from (iii) The provisions in this section do the public at large, and to any private not affect rights and procedures gov- organization or governmental agency. erning public access to official documents pursuant to the Freedom of In- [40 FR 45723, Oct. 2, 1975] formation Act, 5 U.S.C 552a. § 266.2 Policy. (l) Acceptance of service. The rules in this section in no way modify the re- It is the policy of the U.S. Postal quirements of the Federal Rules of Service to ensure that any record with- Civil Procedure (28 U.S.C. Appendix) in its custody that identifies or de- regarding service of process. scribes any characteristic or provides historical information about an indi- [60 FR 36712, July 18, 1995, as amended at 69 vidual or that affords a basis for infer- FR 34935, June 23, 2004] ring personal characteristics, or things APPENDIX A TO PART 265—FEES FOR done by or to such individual, includ- COMPUTER SEARCHES ing the record of any affiliation with an organization or activity, or admis- When requested information must be re- sion to an institution, is accurate, trieved by computer, fees charged to the re- complete, timely, relevant, and reason- quester are based on rates for personnel and computer time. Estimates are provided to ably secure from unauthorized access. the requester in advance and are based on Additionally, it is the policy to provide the following rates: the means for individuals to know: (a) Of the existence of all Postal Service Price Unit Privacy Act systems of records, (b) the Personnel: recipients and usage made of such in- High technical ...... $120 per hour. formation, (c) what information is op- Medium technical ...... 70 per hour. tional or mandatory to provide to the Low technical ...... 50 per hour. Computer Processing: Postal Service, (d) the procedures for Mainframe usage ...... 39 per second. individuals to review and request up- Midrange server usage ...... 06 per second. date to all information maintained PC usage ...... 7.00 per 15 minutes. Printing computer output .... .14 per page. about themselves, (e) the reproduction Magnetic tape production ... 24.00 per volume. fees for releasing records, (f) the procedures for individual legal appeal in [68 FR 56559, Oct. 1, 2003] cases of dissatisfaction; and (g) of the establishment or revision of a com- PART 266—PRIVACY OF puter matching program. INFORMATION [45 FR 44272, July 1, 1980, as amended at 59 FR 37160, July 21, 1994] Sec. 266.1 Purpose and scope. § 266.3 Responsibility. 266.2 Policy. (a) Records Office. The Records Office, 266.3 Responsibility. within the Privacy Office, will ensure 266.4 Collection and disclosure of information about individuals. Postal Service-wide compliance with 266.5 Notification. this policy. 266.6 Procedures for requesting inspection, (b) Custodian. Custodians are respon- copying, or amendment of records. sible for adherence to this part within

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their respective units and in particular (vi) Chief Privacy Officer. for affording individuals their rights to [40 FR 45723, Oct. 2, 1975, as amended at 45 FR inspect and obtain copies of records 44272, July 1, 1980; 59 FR 37160, July 21, 1994; concerning them. 60 FR 57345, Nov. 15, 1995; 64 FR 41291, July 30, (c) Information System Executive. 1999; 68 FR 56560, Oct. 1, 2003] These managers are responsible for reporting to the Records Office the exist- § 266.4 Collection and disclosure of in- ence or proposed development of Pri- formation about individuals. vacy Act systems of records. They also (a) The following rules govern the must report any change that would collection of information about indi- alter the systems description as pub- viduals throughout Postal Service op- lished in the FEDERAL REGISTER. They erations; establish the relevancy of the informa- (1) The Postal Service will: tion within those systems. (i) Collect, solicit and maintain only (d) Data Integrity Board—(1) Respon- such information about an individual sibilities. The Data Integrity Board as is relevant and necessary to accom- oversees Postal Service computer plish a purpose required by statute or matching activities. Its principal func- Executive Order, tion is to review, approve, and main- (ii) Collect information, to the great- tain all written agreements for use of est extent practicable, directly from Postal Service records in matching the subject individual when such infor- programs to ensure compliance with mation may result in adverse deter- the Privacy Act and all relevant stat- minations about an individual’s rights, benefits or privileges, utes, regulations, and guidelines. In addition, the Board annually reviews (iii) Inform any individual who has been asked to furnish information matching programs and other match- about himself whether that disclosure ing activities in which the Postal Serv- is mandatory or voluntary, by what au- ice has participated during the pre- thority it is being solicited, the prin- ceding year to determine compliance cipal purposes for which it is intended with applicable laws, regulations, and to be used, the routine uses which may agreements; compiles a biennial be made of it, and any penalties and matching report of matching activi- specific consequences for the indi- ties; and performs review and advise- vidual, which are known to the Postal ment functions relating to records ac- Service, which will result from refusal curacy, recordkeeping and disposal to furnish it. practices, and other computer match- (2) The Postal Service will not dis- ing activities. criminate against any individual who (2) Composition. The Privacy Act re- fails to provide information about him- quires that the senior official respon- self unless that information is required sible for implementation of agency Pri- or necessary for the conduct of the sys- vacy Act policy and the Inspector Gen- tem or program in which the individual eral serve on the Board. The Chief Pri- desires to participate. vacy Officer, as administrator of Postal (3) No information will be collected Service Privacy Act policy, serves as (or maintained) describing how individ- Secretary of the Board and performs uals exercise rights guaranteed by the the administrative functions of the First Amendment unless the Post- Board. The Board is composed of these master General specifically determines and other members designated by the that such information is relevant and Postmaster General, as follows: necessary to carry out a statutory pur- (i) Vice President and Consumer Ad- pose of the Postal Service. vocate (Chairman). (4) The Postal Service will not require individuals to furnish their So- (ii) Chief Postal Inspector. cial Security account number or deny a (iii) Inspector General. right, privilege or benefit because of an (iv) Senior Vice President, Human individual’s refusal to furnish the num- Resources. ber unless it must be provided by Fed- (v) Vice President, General Counsel. eral law.

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(b) Disclosures—(1) Disclosure: Limita- such activity is authorized by law and tions On. The Postal Service will not if the head of the agency or instrumen- disseminate information about an indi- tality has made a written request to vidual unless reasonable efforts have the Postal Service specifying the par- been made to assure that the informa- ticular portion of the record desired tion is accurate, complete, timely and and the law enforcement activity for relevant and unless: which the record is sought; (i) The individual to whom the record (ix) To either House of Congress or pertains has requested in writing that its committees or subcommittees to the information be disseminated, or the extent of matter within their juris- (ii) It has obtained the prior written diction; consent of the individual to whom the (x) To the Comptroller General or record pertains, or any of his authorized representatives (iii) The dissemination is in accord- in the course of the performance of the ance with paragraph (b)(2) of this sec- duties of the General Accounting Of- tion. fice; (2) Dissemination of personal infor- (xi) Pursuant to the order of a court mation may be made: of competent jurisdiction. (i) To a person pursuant to a require- (3) Names and Addresses of Postal Cus- ment of the Freedom of Information tomers. The disclosure of lists of names Act (5 U.S.C. 552); or addresses of Postal customers or (ii) To those officers and employees other persons to the public is prohib- of the Postal Service who have a need for such information in the perform- ited (39 U.S.C. 412). Names or addresses ance of their duties; will be disclosed only in those cases (iii) For a routine use as contained in permitted by 39 CFR 265.6(d) relating to the system notices published in the the Release of Information. FEDERAL REGISTER; (4) Employee Credit References. A cred- (iv) To a recipient who has provided it bureau or commercial firm from advance adequate written assurance which an employee is seeking credit that the information will be used sole- may be given the following informa- ly as a statistical reporting or research tion upon request: grade, duty status, record, and to whom the information is length of service, job title, and salary. transferred in a form that is not indi- (5) Employee Job References. Prospec- vidually identifiable; tive employers of a postal employee or (v) To the Bureau of the Census for a former postal employee may be fur- purposes of planning or carrying out a nished with the information in para- census or survey or related activity graph (b)(4) of this section, in addition pursuant to the provisions of title 13, to the date and the reason for separa- U.S.C.; tion, if applicable. The reason for sepa- (vi) To the National Archives of the ration must be limited to one of the United States as a record which has following terms: retired, resigned, or sufficient historical or other value to separated. Other terms or variations of warrant its continued preservation by these terms (e.g., retired—disability) the U.S. Government, or for evaluation may not be used. If additional informa- by the Administrator of General Serv- tion is desired, the requester must sub- ices or his designee to determine mit the written consent of the em- whether the record has such value; ployee, and an accounting of the disclo- (vii) To a person pursuant to a show- sure must be kept. ing of compelling circumstances affect- (6) Computer matching purposes. ing the health or safety of an indi- Records from a Postal Service system vidual, if upon such disclosure notifica- of records may be disclosed to another tion is transmitted to the last known agency for the purpose of conducting a address of such individual; computer matching program or other (viii) To a federal agency or to an in- matching activity as defined in para- strumentality of any governmental ju- graphs (c) and (d) of § 262.5, but only risdiction within or under the control after a determination by the Data In- of the United States for a civil or tegrity Board that the procedural re- criminal law enforcement activity, if quirements of the Privacy Act, the

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guidelines issued by the Office of Man- paragraph (b)(2)(viii) of this section re- agement and Budget, and these regula- lating to law enforcement activities. tions as may be applicable are met. These requirements include: [40 FR 45723, Oct. 2, 1975, as amended at 45 FR 44272, July 1, 1980; 58 FR 62036, Nov. 24, 1993; (i) Routine use. Disclosure is made 59 FR 37160, July 21, 1994; 64 FR 41291, July 30, only when permitted as a routine use 1999; 68 FR 56560, Oct. 1, 2003] of the system of records. The Manager, Records Office, determines the applica- § 266.5 Notification. bility of a particular routine use and (a) Notification of Systems. Upon writ- the necessity for adoption of a new rou- ten request, the Postal Service will no- tine use. tify any individual whether a specific (ii) Notice. Publication of new or re- system named by the individual con- vised matching programs in the FED- tains a record pertaining to him or her. ERAL REGISTER and advance notice to Congress and the Office of Management See § 266.6 for suggested form of re- and Budget must be made pursuant to quest. paragraph (f) of § 266.5. (b) Notification of Disclosure. The (iii) Computer matching agreement. The Postal Service shall make reasonable participants in a computer matching efforts to serve notice on an individual program must enter into a written before any personal information on agreement specifying the terms under such individual is made available to which the matching program is to be any person under compulsory legal conducted (see § 266.10). The Manager, process when such process becomes a Records Office, may require that other matter of public record. matching activities be conducted in ac- (c) Notification of Amendment. (See cordance with a written agreement. § 266.6(c)(1) relating to amendment of (iv) Data Integrity Board approval. No records upon request.) record from a Postal Service system of (d) Notification of New Use. Any newly records may be disclosed for use in a intended use of personal information computer matching program unless the maintained by the Postal Service will matching agreement has received ap- be published in the FEDERAL REGISTER proval by the Postal Service Data In- thirty (30) days before such use be- tegrity Board (see § 266.10). Other comes operational. Public views may matching activities may, at the discre- then be submitted to the Records Of- tion of the Manager, Records Office, be fice. submitted for Board approval. (e) Notification of Exemptions. The (c) Correction Disclosure. Any person Postal Service will publish within the or other agency to which a personal FEDERAL REGISTER its intent to exempt record has been or is to be disclosed any system of records and shall specify shall be informed of any corrections or the nature and purpose of that system. notations of dispute relating thereto (f) Notification of computer matching affecting the accuracy, timeliness or program. The Postal Service publishes relevance of that personal record. in the FEDERAL REGISTER and forwards (d) Recording of Disclosure. (1) An ac- to Congress and the Office of Manage- curate accounting of each disclosure ment and Budget advance notice of its will be kept in all instances except intent to establish, substantially re- those in which disclosure is made to vise, or renew a matching program, un- the subject of the record, or to Postal less such notice is published by another Service employees in the performance participant agency. In those instances of their duties or is required by the in which the Postal Service is the ‘‘re- Freedom of Information Act (5 U.S.C. cipient’’ agency, as defined in the Act, 552). but another participant agency spon- (2) The accounting will be main- sors and derives the principal benefit tained for at least five (5) years or the from the matching program, the other life of the record, whichever is longer. agency is expected to publish the no- (3) The accounting will be made tice. The notice must be sent to Con- available to the individual named in gress and OMB 40 days, and published the record upon inquiry, except for dis- at least thirty (30) days, prior to (1) ini- closures made pursuant to provision tiation of any matching activity under

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a new or substantially revised pro- dian will respond with an acknowledge- gram, or (2) expiration of the existing ment of receipt within ten (10) days. If matching agreement in the case of a the inquiry requires the custodian to renewal of a continuing program. determine whether a particular record exists, the inquirer shall be informed of [40 FR 45724, Oct. 2, 1975; 40 FR 48512, Oct. 16, 1975, as amended at 45 FR 44272, July 1, 1980; this determination as a part of the ac- 59 FR 37161, July 21, 1994; 60 FR 57345, Nov. 15, knowledgement letter. 1995; 64 FR 41291, July 30, 1999; 68 FR 56560, (b) Compliance with Request for Ac- Oct. 1, 2003; 69 FR 34935, June 23, 2004] cess—(1) Notification of time and place for inspection. When a requested record has § 266.6 Procedures for requesting in- been identified and is to be disclosed, spection, copying, or amendment of the custodian shall ensure that the records. record is made available promptly and The purpose of this section is to pro- shall immediately notify the requester vide procedures by which an individual where and when the record will be may have access and request amend- available for inspection or copying. ment to personal information within a Postal Service records will normally be Privacy Act System of Records. available for inspection and copying (a) Submission of Requests—(1) Manner during regular business hours at the of submission. Inquiries regarding the postal facilities at which they are contents of records systems or access maintained. The custodian may, how- or amendment to personal information ever, designate other reasonable loca- should be submitted in writing to the tions and times for inspection and custodian of the official record, if copying of some or all of the records known, or to the Manager, Records Of- within his custody. fice, U.S. Postal Service, 475 L’Enfant (2) Identification of requester. The re- Plaza SW., Washington, DC 20260, tele- quester must present personal identi- phone (202) 268–2608. Requests sub- fication sufficient to satisfy the custo- mitted to the Office of Inspector Gen- dian as to his identity prior to record eral should be submitted to the Free- review. Examples of sufficient identi- dom of Information Act/Privacy Offi- fication are a valid driver’s license, cer, Office of Inspector General, 1735 Medicare card, and employee identi- North Lynn Street, Arlington, Vir- fication cards. ginia, 22209–2020. Inquiries should be (3) Responsibilities of requester. The re- clearly marked, ‘‘Privacy Act Request’’. quester shall assume the following re- Any inquiry concerning a specific sys- sponsibilities regarding the review of tem of records should provide the Post- official personal records: al Service with the information con- (i) Requester must agree not to leave tained under ‘‘Notification’’ for that Postal Services premises with official system as published in the FEDERAL records unless specifically given a copy REGISTER. If the information supplied for that purpose by the custodian or his is insufficient to locate or identify the representative. record, the requester will be notified (ii) Requester must sign a statement promptly and, if possible, informed of indicating he has reviewed a specific additional information required. If the record(s) or category of record. requester is not a Postal Service em- (iii) Requester may be accompanied ployee, he should designate the post of- by a person he so chooses to aid in the fice at which he wishes to review or ob- inspection of information; however, retain copies of records. Amendment requester must furnish the Postal Serv- quests contest the relevance, accuracy, ice with written authorization for such timeliness or completeness of the review in that person’s presence. record and will include a statement of (4) Special rules for medical records. A the amendment requested. medical record shall be disclosed to the (2) Third party inquiries. Anyone de- requester to whom it pertains unless, siring to review or copy records per- in the judgment of the medical officer, taining to another person must have access to such record could have an ad- the written consent of that person. verse effect upon such individual. When (3) Period for response by custodian. the medical officer determines that the Upon receipt of an inquiry, the custo- disclosure of medical information

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could have an adverse effect upon the prescribed by this part, the requester individual to whom it pertains, the shall appeal to the General Counsel, medical officer will transmit such in- U.S. Postal Service, Washington, DC formation to a medical doctor named 20260–1100. by the requesting individual. (2) The requester should submit his (5) Limitations on access. Nothing in appeal in writing within thirty (30) this section shall allow an individual days of the date of denial, or within access to any information compiled in ninety (90) days of such request if the reasonable anticipation of a civil ac- appeal is from a failure of the custo- tion or proceeding. Other limitations dian to make a determination. The let- on access are those specifically ad- ter of appeal should include, as applica- dressed in §§ 266.6(b)(4) and 266.9. ble: (6) Response when compliance is not (i) Reasonable identification of the possible. A reply denying a written re- record access to which or the amend- quest to review a record shall be in ment of which was requested. writing signed by the custodian or (ii) A statement of the Postal Service other appropriate official and shall be action or failure to act and of the relief made only if such a record does not sought. exist or does not contain personal in- (iii) A copy of the request, of the no- formation relating to the requester, or tification of denial and of any other re- is exempt from disclosure. This reply lated correspondence. shall include a statement regarding the (3) Any record found on appeal to be determining factors of denial, and the incomplete, inaccurate, not relevant, right to appeal to denial to the General or not timely, shall within thirty (30) Counsel. working days of the date of such find- (c) Compliance With Request for ings be appropriately amended. Amendment. (1) Correct or eliminate (4) The decision of the General Coun- any information that is found to be in- sel, constitutes the final decision of the complete, inaccurate, not relevant to a Postal Service on the right of the re- statutory purpose of the Postal Serv- quester to inspect, copy, change, or up- ice, or not timely and notify the re- date a record. The decision on the ap- quester when this action is complete, peal shall be in writing and in the or event of a denial shall set forth the (2) Not later than thirty (30) working reasons for such denial and state the days after receipt of a request to individual’s right to obtain judicial re- amend, notify the requester of a deter- view in a district court. An indexed file mination not to amend and of the re- of decisions on appeals shall be main- quester’s right to appeal, or to submit, tained by the General Counsel. in lieu of an appeal, a statement of rea- (b) Submission of Statement of Disagree- sonable length setting forth a position ment. If the final decision concerning a regarding the disputed information to request for the amendment of a record be attached to the contested personal does not satisfy the requester, any record. statement of reasonable length pro- (d) Availability of Assistance in Exer- vided by that individual setting forth a cising Rights. The Manager, Records Of- position regarding the disputed infor- fice is available to provide an indi- mation will be accepted and attached vidual with assistance in exercising to the relevant personal record. rights pursuant to this part. [40 FR 45723, Oct. 2, 1975, as amended at 41 FR [40 FR 45723, Oct. 2, 1975, as amended at 45 FR 24709, June 18, 1976; 45 FR 44273, July 1, 1980; 44272, July 1, 1980; 51 FR 26386, July 23, 1986; 51 FR 26386, July 23, 1986; 60 FR 57345, Nov. 15, 60 FR 57345, Nov. 15, 1995; 64 FR 41291, July 30, 1995; 64 FR 41291, July 30, 1999; 68 FR 56560, 1999; 67 FR 16024, Apr. 4, 2002; 68 FR 56560, Oct. 1, 2003] Oct. 1, 2003] § 266.8 Schedule of fees. § 266.7 Appeal procedure. (a) Policy. The purpose of this section (a) Appeal Procedure. (1) If a request is to establish fair and equitable fees to to inspect, copy, or amend a record is permit duplication of records for sub- denied, in whole or in part, or if no de- ject individuals (or authorized rep- termination is made within the period resentatives) while recovering the full

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allowable direct costs incurred by the quire compliance with provisions here- Postal Service. of implementing any subsections of 5 (b) Duplication. (1) For duplicating U.S.C. 552a from which those systems any paper or micrographic record or have been exempted. publication or computer report, the fee (b) Paragraph (b)(1) of this section is $.15 per page, except that the first contains a summary of provisions of 5 100 pages furnished in response to a U.S.C. 552a for which exemption is particular request shall be furnished claimed for some systems of records without charge. See paragraph (d) of pursuant to, and to the extent per- this section for fee limitations. mitted by, subsections 552a(j) and (k) of (2) The Postal Service may at its dis- 5 U.S.C. 552a. Paragraphs (b)(2) through cretion make coin-operated copy ma- (5) of this section identify the exempt- chines available at any location. In ed systems of records, the exemptions that event, requesters will be given the applied to each, and the reasons for the opportunity to make copies at their exemptions: own expense. (1) Explanation of provisions under 5 (3) The Postal Service normally will U.S.C. 552a for which an exemption is not furnish more than one copy of any claimed in the systems discussed below. (i) record. If duplicate copies are fur- Subsection (c)(3) requires an agency to nished at the request of the requester, make available to the individual $.15 per page fee is charged for each named in the records an accounting of copy of each duplicate page without re- each disclosure of records. gard to whether the requester is eligi- (ii) Subsection (c)(4) requires an ble for free copies pursuant to agency to inform any person or other § 266.8(b)(1). agency to which a record has been dis- (c) Aggregating requests. When the closed of any correction or notation of custodian reasonably believes that a dispute the agency has made to the requester is attempting to break a re- record in accordance with 5 U.S.C. quest for similar types of records down 552a(d). into a series of requests in order to (iii) Subsections (d)(1) through (4) re- evade the assessment of fees, the custo- quire an agency to permit an indi- dian may aggregate the requests and vidual to gain access to records about charge accordingly. the individual, to request amendment (d) Limitations. No fee will be charged of such records, to request a review of an individual for the process of retriev- an agency decision not to amend such ing, reviewing, or amending a record records, and to provide a statement of pertaining to that individual. disagreement about a disputed record (e) The Postal Service may, at its to be filed and disclosed with the dis- discretion, require reimbursement of puted record. its costs as a condition of participation (iv) Subsection (e)(1) requires an in a computer matching program or ac- agency to maintain in its records only tivity with another agency. The agency such information about an individual to be charged is notified in writing of that is relevant and necessary to ac- the approximate costs before they are complish a purpose required by statute incurred. Costs are calculated in ac- or executive order of the President. cordance with the schedule of fees at (v) Subsection (e)(2) requires an agen- § 265.9. cy to collect information to the great- [52 FR 38230, Oct. 15, 1987, as amended at 59 est extent practicable directly from FR 37161, July 21, 1994; 68 FR 56560, Oct. 1, the subject individual when the infor- 2003] mation may result in adverse determinations about an individual’s rights, § 266.9 Exemptions. benefits, and privileges under federal (a) Subsections 552a(j) and (k) of 5 programs. U.S.C. 552a empower the Postmaster (vi) Subsection (e)(3) requires an General to exempt systems of records agency to inform each person whom it meeting certain criteria from various asks to supply information of the au- other subsections of 5 U.S.C. 552a. With thority under which the information is respect to systems of records so ex- sought, the purposes for which the in- empted, nothing in this part shall re- formation will be used, the routine

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uses that may be made of the informa- enforcement of criminal laws. The rea- tion, whether disclosure is mandatory sons for exemption follow: or voluntary, and the effects of not (i) Disclosure to the record subject providing the information. pursuant to subsections (c)(3), (c)(4), or (vii) Subsection (e)(4)(G) and (H) re- (d)(1)–(4) could: quires an agency to publish a FEDERAL (A) Alert subjects that they are tar- REGISTER notice of its procedures gets of an investigation or mail cover whereby an individual can be notified by the Postal Inspection Service or an upon request whether the system of investigation by the Office of Inspector records contains information about the General; individual, how to gain access to any (B) Alert subjects of the nature and record about the individual contained scope of the investigation and of evi- in the system, and how to contest its content. dence obtained; (viii) Subsection (e)(5) requires an (C) Enable the subject of an inves- agency to maintain its records with tigation to avoid detection or appre- such accuracy, relevance, timeliness, hension; and completeness as is reasonably nec- (D) Subject confidential sources, wit- essary to ensure fairness to the indi- nesses, and law enforcement personnel vidual in making any determination to harassment or intimidation if their about the individual. identities were released to the target of (ix) Subsection (e)(8) requires an an investigation; agency to make reasonable efforts to (E) Constitute unwarranted invasions serve notice on an individual when any of the personal privacy of third parties record on such individual is made who are involved in a certain investiga- available to any person under compul- tion; sory legal process when such process (F) Intimidate potential witnesses becomes a matter of public record. and cause them to be reluctant to offer (x) Subsection (f) requires an agency information; to establish procedures whereby an in- (G) Lead to the improper influencing dividual can be notified upon request if of witnesses, the destruction or alter- any system of records named by the ination of evidence yet to be discovered, dividual contains a record pertaining the fabrication of testimony, or the to the individual, obtain access to the compromising of classified material; record, and request amendment. and (xi) Subsection (g) provides for civil (H) Seriously impede or compromise remedies if an agency fails to comply law enforcement, mail cover, or back- with the access and amendment provi- ground investigations that might in- sions of subsections (d)(1) and (d)(3), volve law enforcement aspects as a re- and with other provisions of 5 U.S.C. sult of the above. 552a, or any rule promulgated there- under, in such a way as to have an ad- (ii) Application of subsections (e)(1) verse effect on an individual. and (e)(5) is impractical because the (xii) Subsection (m) requires an agen- relevance, necessity, or correctness of cy to cause the requirements of 5 specific information might be estab- U.S.C. 552a to be applied to a con- lished only after considerable analysis tractor operating a system of records and as the investigation progresses. As to accomplish an agency function. to relevance (subsection (e)(1)), effec- (2) Pursuant to subsection 552a(j)(2), tive law enforcement requires the Emergency Management Records, USPS keeping of information not relevant to 500.300; Inspection Service Investigative a specific Postal Inspection Service in- File System, USPS 700.000; Mail Cover vestigation or Office of Inspector Gen- Program Records, USPS 700.100; and In- eral investigation. Such information spector General Investigative Records, may be kept to provide leads for appro- USPS 700.300, are exempt from sub- priate law enforcement and to estab- sections 552a (c)(3), (c)(4), (d)(1)–(4), lish patterns of activity that might re- (e)(1)–(3), (e)(4) (G) and (H), (e)(5), (e)(8), late to the jurisdiction of the Office of (f), (g), and (m) because the systems Inspector General, Postal Inspection contain information pertaining to the Service, and/or other agencies. As to

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accuracy (subsection (e)(5)), the cor- (i) Emergency Management Records, rectness of records sometimes can be USPS 500.300; Inspection Service Inves- established only in a court of law. tigative File System, USPS 700.000; Mail (iii) Application of subsections (e)(2) Cover Program Records, USPS 700.100; and (e)(3) would require collection of and Inspector General Investigative information directly from the subject Records, USPS 700.300, are exempt from of a potential or ongoing investigation. subsections 552a(c)(3), (d)(1)–(4), (e)(1), The subject would be put on alert that (e)(4) (G) and (H), and (f) for the same he or she is a target of an investigation reasons as stated in paragraph (b)(2) of by the Office of Inspector General, or this section. an investigation or mail cover by the (ii) Labor Relations Records, USPS Postal Inspection Service, enabling 200.000, is exempt from subsections avoidance of detection or apprehen- 552a(d)(1)–(4), (e)(4)(G) and (H), and (f) sion, thereby seriously compromising for the following reasons: law enforcement, mail cover, or back- (A) Application of the requirements ground investigations involving law en- at subsections (d)(1)-(4) would cause forcement aspects. Moreover, in cer- disruption of enforcement of the laws tain circumstances the subject of an relating to equal employment oppor- investigation is not required to provide tunity (EEO). It is essential to the in- information to investigators, and infor- tegrity of the EEO complaint system mation must be collected from other that information collected in the in- sources. vestigative process not be prematurely (iv) The requirements of subsections disclosed and that witnesses be free (e)(4)(G) and (H), and (f) do not apply from restraint, interference, coercion, because this system is exempt from the or reprisal. provisions of subsection (d). Neverthe- (B) The requirements of subsections less, the Postal Service has published (e)(4)(G) and (H), and (f) do not apply notice of its notification, access, and for the same reasons described in para- contest procedures because access is graph (b)(2)(iv) of this section. appropriate in some cases. (iii) Financial Transactions, USPS (v) Application of subsection (e)(8) 860.000, is exempt from subsections could prematurely reveal an ongoing 552a(c)(3), (d)(1)–(4), (e)(1), (e)(4)(G) and criminal investigation to the subject of (H), and (f) for the following reasons: the investigation. (A) Disclosure to the record subject (vi) The provisions of subsection (g) pursuant to subsections (c)(3) and do not apply because exemption from (d)(1)–(4) would violate the non-notifi- the provisions of subsection (d) renders cation provision of the Bank Secrecy the provisions on suits to enforce sub- Act, 31 U.S.C. 5318(g)(2), under which section (d) inapplicable. the Postal Service is prohibited from (vii) If one of these systems of notifying a transaction participant records is operated in whole or in part that a suspicious transaction report by a contractor, the exemptions has been made. In addition, the access claimed herein shall remain applicable provisions of subsections (c)(3) and to it (subsection (m)). (d)(1)–(4) would alert individuals that (3) Pursuant to subsection 552a(k)(2), they have been identified as suspects or Labor Relations Records, USPS 200.000; possible subjects of investigation and Emergency Management Records, USPS thus seriously hinder the law enforce- 500.300; Inspection Service Investigative ment purposes underlying the sus- File System, USPS 700.000; Mail Cover picious transaction reports. Program Records, USPS 700.100; Inspector (B) This system is in compliance with General Investigative Records, USPS subsection (e)(1) because maintenance 700.300; and Financial Transactions, of the records is required by law. Strict USPS 860.000, are exempt from certain application of the relevance and neces- subsections of 5 U.S.C. 552a because the sity requirements of subsection (e)(1) systems contain investigatory material to suspicious transactions would be im- compiled for law enforcement purposes practical, however, because the rel- other than material within the scope of evance or necessity of specific informa- subsection 552a(j)(2). tion can often be established only after

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considerable analysis and as an inves- (C) The requirements of subsections tigation progresses. (e)(4)(G) and (H), and (f) do not apply (C) The requirements of subsections because this system is exempt from the (e)(4)(G) and (H), and (f) do not apply provisions of subsection (d). Neverthe- because this system is exempt from the less, the Postal Service has published provisions of subsection (d). Neverthe- notice of its notification, access, and less, the Postal Service has published contest procedures because access is notice of its notification, access, and appropriate in some cases. contest procedures because access is (ii) Labor Relations Records, USPS appropriate in some cases. 200.000, is exempt from subsections (4) Pursuant to subsection 552a(k)(5), 552a(d)(1)–(4), (e)(4)(G) and (H), and (f) Recruiting, Examining, and Placement for the following reasons: Records, USPS 100.100; Labor Relations (A) Application of the provisions at Records, USPS 200.000; Inspection Service subsection (d)(1)–(4) would reveal to the Investigative File System, USPS 700.000; EEO complainant the identity of indi- and Inspector General Investigative viduals who supplied information under Records, USPS 700.300 are exempt from a promise of anonymity. It is essential certain subsections of 5 U.S.C. 552a be- to the integrity of the EEO complaint cause the systems contain investiga- system that information collected in tory material compiled for the purpose the investigative process not be pre- of determining suitability, eligibility, maturely disclosed and that witnesses or qualifications for employment, con- be free from restraint, interference, co- tracts, or access to classified informa- ercion, or reprisal. tion. (B) The requirements of subsections (i) Recruiting, Examining, and Place- (e)(4)(G) and (H), and (f) do not apply ment Records, USPS 100.100, is exempt because this system is exempt from the from subsections 552a(d)(1)–(4) and provisions of subsection (d). Neverthe- (e)(1) for the following reasons: less, the Postal Service has published (A) During its investigation and eval- notice of its notification, access, and uation of an applicant for a position, contest procedures because access is the Postal Service contacts individuals appropriate in some cases. who, without an assurance of anonym- (iii) Inspection Service Investigative ity, would refuse to provide informa- File System, USPS 700.000; and Inspector tion concerning the subject of the in- General Investigative Records, USPS vestigation. If a record subject were 700.300, are exempt from subsections given access pursuant to subsection 552a(c)(3), (d)(1)–(4), (e)(1), (e)(4) (G) and (d)(1)–(4), the promised confidentiality (H), and (f) for the same reasons as would be breached and the confidential stated in paragraph (b)(2) of this sec- source would be identified. The result tion. would be restriction of the free flow of (5) Pursuant to subsection 552a(k)(6), information vital to a determination of Employee Development and Training an individual’s qualifications and suit- Records, USPS 100.300; Personnel Re- ability for appointment to or continued search Records, 100.600; and Emergency occupancy of his or her position. Management Records, USPS 500.300 are (B) In collecting information for in- exempt from subsections 552a(d)(1)–(4), vestigative and evaluative purposes, it (e)(4)(G) and (H), and (f) because the is impossible to determine in advance systems contain testing or examina- what information might be of assist- tion material the disclosure of which ance in determining the qualifications would compromise the objectivity or and suitability of an individual for ap- fairness of the material. The reasons pointment. Information that seems ir- for exemption follow: relevant, when linked with other infor- (i) These systems contain questions mation, can sometimes provide a com- and answers to standard testing mate- posite picture of an individual that as- rials, the disclosure of which would sists in determining whether that indi- compromise the fairness of the future vidual should be appointed to or reuse of these materials. It is not feasible tained in a position. For this reason, to develop entirely new examinations exemption from subsection (e)(1) is after each administration as would be claimed. necessary if questions or answers were

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available for inspection and copying. to allow time to meet Privacy Act pub- Consequently, exemption from sub- lication and review requirements. section (d) is claimed. (d) Matching agreements. The partici- (ii) The requirements of subsections pants in a computer matching program (e)(4)(G) and (H), and (f) do not apply must enter into a written agreement because this system is exempt from the specifying the terms under which the provisions of subsection (d). Neverthe- matching program is to be conducted. less, the Postal Service has published The Manager, Records Office may re- notice of its notification, access, and quire similar written agreements for contest procedures because access is other matching activities. appropriate in some cases. (1) Content. Agreements must specify: (i) The purpose and legal authority [70 FR 22513, Apr. 29, 2005] for conducting the matching program; (ii) The justification for the program § 266.10 Computer matching. and the anticipated results, including, (a) General. Any agency or Postal when appropriate, a specific estimate Service component that wishes to use of any savings in terms of expected records from a Postal Service auto- costs and benefits, in sufficient detail mated system of records in a computer- for the Data Integrity Board to make ized comparison with other postal or an informed decision; non-postal records must submit its pro- (iii) A description of the records that posal to the Postal Service Manager are to be matched, including the data Records Office. Computer matching elements to be used, the number of programs as defined in paragraph (c) of records, and the approximate dates of § 262.5 must be conducted in accordance the matching program; with the Privacy Act, implementing (iv) Procedures for providing notice guidance issued by the Office of Man- to individuals who supply information agement and Budget and these regula- that the information may be subject to tions. Records may not be exchanged verification through computer match- for a matching program until all proce- ing programs; dural requirements of the Act and (v) Procedures for verifying informa- these regulations have been met. Other tion produced in a matching program matching activities must be conducted and for providing individuals an oppor- in accordance with the Privacy Act and tunity to contest the findings in ac- with the approval of the Manager, cordance with the requirement that an Records Office. See paragraph (b)(6) of agency may not take adverse action § 266.4. against an individual as a result of in- (b) Procedure for submission of match- formation produced by a matching pro- ing proposals. A proposal must include gram until the agency has independ- information required for the matching ently verified the information and pro- agreement discussed in paragraph (d)(1) vided the individual with due process; of this section. The Inspection Service (vi) Procedures for ensuring the ad- must submit its proposals for matching ministrative, technical, and physical programs and other matching activi- security of the records matched; for ties to the Postal Service Manager the retention and timely destruction of Records Office through: Independent records created by the matching pro- Counsel, Inspection Service, U.S. Post- gram; and for the use and return or deal Service, 475 L’Enfant Plaza SW, Rm struction of records used in the pro- 3417, Washington, DC 20260–2181. All gram; other matching proposals, whether (vii) Prohibitions concerning duplica- from postal organizations or other gov- tion and redisclosure of records ex- ernment agencies, must be mailed di- changed, except where required by law rectly to: Manager, Records Office, or essential to the conduct of the U.S. Postal Service, 475 L’Enfant Plaza matching program; SW., Washington, DC 20260. (viii) Assessments of the accuracy of (c) Lead time. Proposals must be sub- the records to be used in the matching mitted to the Postal Service Manager program; and Records Office at least 3 months in ad- (ix) A statement that the Comp- vance of the anticipated starting date troller General may have access to all

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records of the participant agencies in AUTHORITY: 39 U.S.C. 401; Pub. L. 93–579, 88 order to monitor compliance with the Stat. 1896. agreement. (2) Approval. Before the Postal Serv- § 267.1 Purpose and scope. ice may participate in a computer This part addresses the protection of matching program or other computer information and records in the custody matching activity that involves both of the Postal Service throughout all USPS and non-USPS records, the Data phases of information flow and within Integrity Board must have evaluated all organization components, and in- the proposed match and approved the cludes micromated, manual and data terms of the matching agreement. To processing information. be effective, the matching agreement [40 FR 45726, Oct. 2, 1975] must receive approval by each member of the Board. Votes are collected by the § 267.2 Policy. Postal Service Manager Records Office. Agreements are signed on behalf of the Consistent with the responsibility of Board by the Chairman. If a matching the Postal Service to make its official agreement is disapproved by the Board, records available to the public to the any party may appeal the disapproval maximum extent required by the pub- in writing to the Director, Office of lic interest, and to ensure the security, Management and Budget, Washington, confidentiality, and integrity of offi- DC 20503–0001, within 30 days following cial records containing sensitive or na- the Board’s written disapproval. tional security information, it is the (3) Effective dates. No matching agree- policy of the Postal Service to main- ment is effective until 40 days after the tain definitive and uniform informa- date on which a copy is sent to Con- tion security safeguards. These safe- gress. The agreement remains in effect guards will have as their purpose: (a) only as long as necessary to accom- Ensuring the effective operation of the plish the specific matching purpose, Postal Service through appropriate but no longer than 18 months, at which controls over critical information, and time the agreement expires unless ex- (b) Protecting personal privacy, the tended. The Data Integrity Board may public interest, and the national secu- extend an agreement for one additional rity by limiting unauthorized access to year, without further review, if within both restricted and national security 3 months prior to expiration of the 18- information. month period it finds that the match- [44 FR 51224, Aug. 31, 1979] ing program is to be conducted without change, and each party to the agree- § 267.3 Responsibility. ment certifies that the program has (a) Chief Postal Inspector and Chief been conducted in compliance with the Privacy Officer. The Chief Postal In- matching agreement. Renewal of a con- spector and the Chief Privacy Officer tinuing matching program that has run will ensure within their respective for the full 30-month period requires a areas of jurisdiction: new agreement that has received Data (1) Postal Service-wide compliance Integrity Board approval. with this policy and related standards [59 FR 37161, July 21, 1994, as amended at 60 and procedures; and FR 57345, Nov. 15, 1995; 64 FR 41291, July 30, (2) Implementation of remedial ac- 1999; 68 FR 56560, Oct. 1, 2003; 69 FR 34935, tion when violations or attempted vio- June 23, 2004] lations of these standards and procedures occur. PART 267—PROTECTION OF (b) Custodians. All custodians are re- INFORMATION sponsible for insuring that information security standards and procedures are Sec. followed and that all relevant employ- 267.1 Purpose and scope. ees participate in the information se- 267.2 Policy. curity awareness programs. 267.3 Responsibility. 267.4 Information security standards. [40 FR 45726, Oct. 2, 1975, as amended at 60 FR 267.5 National Security Information. 57345, Nov. 15, 1995; 68 FR 56560, Oct. 1, 2003]

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§ 267.4 Information security standards. (c) Responsibility and authority. (1) The Manager, Payroll Accounting and (a) The Postal Service will operate Records, serves as the USPS National under a uniform set of information se- Security Information Oversight Offi- curity standards which address the fol- cer. This officer shall: lowing functional aspects of informa- (i) Conduct an active oversight pro- tion flow and management: gram to ensure that the appropriate (1) Information system development, provisions of these regulations are (2) Information collection, complied with; (3) Information handling and proc- (ii) Chair a committee composed of essing, the Manager, Payroll Accounting and (4) Information dissemination and Records; the Chief Postal Inspector disclosure, (USPS Security Officer); the General (5) Information storage and destruc- Counsel; the Executive Assistant to the tion, Postmaster General; and the Director, (b) Supplementing this list are infor- Operating Policies Office; or their des- mation security standards pertaining ignees, with authority to act on all to the following administrative areas: suggestions and complaints concerning (1) Personnel selection and training, compliance by the Postal Service with (2) Physical environment protection, the regulations in this part; (3) Contingency planning, (iii) Ensure that appropriate and (4) Information processing or storage prompt corrective action is taken system procurement, whenever a postal employee know- (5) Contractual relationships. ingly, willfully and without authorization: [40 FR 45726, Oct. 2, 1975; 40 FR 48512, Oct. 16, (A) Discloses national security infor- 1975] mation properly classified under the Executive order, or prior orders, § 267.5 National Security Information. (B) Compromises properly classified (a) Purpose and scope. The purpose of information through negligence, or this section is to provide regulations (C) Violates any provisions of these implementing Executive Order 12356 regulations or procedures; National Security Information (herein- (iv) Establish, staff, and direct ac- after referred to as the Executive tivities for controlling documents con- Order) which deals with the protection, taining national security information handling and classification of national at USPS Headquarters and to provide security information. functional direction to the field. (b) Definitions. (1) In this section, Na- (v) In conjunction with the USPS Se- tional Security Information means infor- curity Officer, prepare and issue in- mation on the national defense and for- structions for the control, protection, eign relations of the United States that and derivative classification of na- has been determined under the Execu- tional security information in the cus- tive Order or prior Orders to require tody of, and use by, the Postal Service. protection against unauthorized disclo- These instructions shall include re- sure and has been so designated. quirements that: (2) Derivative Classification means the (A) A demonstrable need for access to carrying forward of a classification national security information is estab- from one document to a newly created lished before requesting the initiation document that contains national secu- of administrative clearance procedures; rity information which is in substance (B) Ensure that the number of people the same as information that is cur- granted access to national security in- rently classified. formation is reduced to and maintained (3) In the Custody of the Postal Service at the minimum number consistent means any national security informa- with operational requirements and tion transmitted to and held by the needs; U.S. Postal Service for the information (vi) Establish, staff and direct activi- and use of postal officials. (This does ties for controlling documents con- not include any national security in- taining national security information formation in the U.S. Mails.) at USPS Headquarters and provide

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functional direction to each Regional (d) Derivative classification. When ap- Records Control Officer; plying derivative classifications to doc- (vii) As part of the overall program uments created by the Postal Service, implementation, develop a training the Postal Service shall: program to familiarize appropriate (1) Respect original classification de- postal employees of the requirements cisions; for control, protection and classifica- (2) Verify the information’s current tion; and level of classification so far as prac- (viii) Report to the USPS Security ticable before applying the markings; Officer any incidents of possible loss or and compromise of national security infor- (3) Carry forward to any newly cre- mation. ated documents the assigned dates or (2) The USPS Security Officer (the events for declassification or review Chief Postal Inspector) shall: and any additional authorized mark- (i) Provide technical guidance to the ings in accordance with section 2 of the Manager, Payroll Accounting and Executive order. Records in implementing the national (e) General provisions—(1) Dissemina- security information program; tion. National security information re- (ii) Conduct investigations into received by the U.S. Postal Service shall ported program violations or loss or not be further disseminated to any possible compromise of national secu- other agency without the consent of rity information and report any actual the originating agency. loss or compromise to the originating (2) Disposal. Classified documents no agency; longer needed by the Postal Service (iii) Periodically conduct an audit of shall be either properly destroyed or the USPS national security informa- returned to the originating agency. tion program; (3) Freedom of Information Act or (iv) Process requests for sensitive mandatory review requests. clearances; conduct the appropriate in- (i) Requests for classified documents vestigations and grant or deny a sen- made under the Freedom of Informa- sitive clearance to postal employees tion Act (FOIA) and mandatory review having an official ‘‘need to know’’ na- requests (requests under Section 3–501 tional security information; and of the Executive Order for the declas- (v) Report to the Attorney General sification and release of information), any evidence of possible violations of including requests by the news media, federal criminal law by a USPS em- should be submitted to: Manager, ployee and of possible violations by Records Office, U.S. Postal Service, 475 any other person of those federal crimi- L’Enfant Plaza, SW., Washington, DC nal laws. 20260. (3) All postal employees who have ac- (ii) In response to an FOIA request or cess to national security information a mandatory review request, the Postal shall: Service shall not refuse to confirm the (i) Sign a nondisclosure agreement; existence or non-existence of a docu- (ii) Be familiar with and follow all ment, unless the fact of its existence or Program regulations and instructions; non-existence would itself be classifi- (iii) Actively protect and be accountable. able for all national security informa- (iii) The Postal Service shall forward tion entrusted to their care; all FOIA and mandatory review re- (iv) Disclose national security infor- quests for national security informa- mation only to another individual who tion in its custody (including that is authorized access; within records derivatively classified (v) Immediately report to the Man- by the USPS) to the originating agency ager, Payroll Accounting and Records for review unless the agency objects on and the USPS Security Officer any sus- the grounds that its association with pected or actual loss or compromise of the information requires protection. national security information; and The requester shall be notified that: (vi) Be subject to administrative (A) The request was referred; and sanctions should requirements (ii) (B) The originating agency will pro- through (v) not be followed. vide a direct response.

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(4) Research requests. Requests from tion about individuals that is collected, historical researchers for access to na- maintained and used for official Postal tional security information shall be re- Service business. Employees shall be ferred to the originating agency. held responsible for any violation of (39 U.S.C. 401 (2), (10), 404(a)(7)) these procedures. [44 FR 51224, Aug. 31, 1979, as amended at 45 [45 FR 44273, July 1, 1980, as amended at 60 FR 30069, May 7, 1980; 49 FR 22476, May 30, FR 57346, Nov. 15, 1995; 68 FR 56560, Oct. 1, 1984; 60 FR 57345, 57346, Nov. 15, 1995; 64 FR 2003] 41291, July 30, 1999; 68 FR 56560, Oct. 1, 2003] § 268.2 Consequences of non-compli- PART 268—PRIVACY OF INFORMA- ance. TION—EMPLOYEE RULES OF (a) The Privacy Act authorizes any CONDUCT individual, whether or not an employee, to bring a civil action in U.S. Sec. District Court to obtain judicial review 268.1 General principles. of the failure of the Postal Service to 268.2 Consequences of non-compliance. comply with the requirements of the AUTHORITY: 39 U.S.C. 401; 5 U.S.C. 552a. Act or its implementing regulations. In certain instances of willful or inten- § 268.1 General principles. tional non-compliance, the plaintiff In order to conduct its business, the may recover damages from the Postal Postal Service has the need to collect Service in the minimum amount of various types of personally identifiable $1,000 together with costs of the action information about its customers, em- and attorney fees. ployees and other individuals. Informa- (b) The Act provides criminal sanction of this nature has been entrusted tions for individuals, including employ- to the Postal Service, and employees ees, who violate certain of its provi- handling it have a legal and ethical ob- sions. ligation to hold it in confidence and to (1) Any officer or employee who, by actively protect it from uses other virtue of his employment or position, than those compatible with the pur- has possession of, or access to, official pose for which the information was col- records which contain individually lected. This obligation is legally im- identifiable information and who, posed by the Privacy Act of 1974, which knowing that disclosure of the specific places specific requirements upon all material is prohibited by Postal Serv- Federal agencies, including the Postal ice regulations, willfully discloses the Service, and their employees. In imple- material to a person or agency not en- mentation of these requirements, the titled to receive it, shall be guilty of a following rules of conduct apply: misdemeanor and fined not more than (a) Except as specifically authorized $5,000. in § 266.4(b)(2) of this chapter, no em- (2) Any officer or employee who will- ployee shall disclose, directly or indi- fully maintains a system of records rectly, the contents of any record without meeting the notice require- about another individual to any person or organization. Managers are to pro- ments set forth in Postal Service regu- vide guidance in this regard to all em- lations shall be guilty of a mis- ployees who must handle such informa- demeanor and fined not more than tion. $5,000. (b) No employee will maintain a secret (3) Any person who knowingly and system of records about individuals. All willfully requests or obtains any record records systems containing personally concerning another individual from the identifiable information about individ- Postal Service under false pretense uals must be reported to the Manager, shall be guilty of a misdemeanor and Records Office. fined not more than $5,000. (c) All employees shall adhere strict- (c) In addition to the criminal sanc- ly to the procedures established by the tions, any employee violating any pro- U.S. Postal Service to ensure the con- visions of these rules of conduct is sub- fidentiality and integrity of informa- ject to disciplinary action which may

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result in dismissal from the Postal (B) Provided any portion of the funds Service. for the purchase of such property or services; or [40 FR 45726, Oct. 2, 1975] (C) will reimburse such recipient or party for the purchase of such property PART 273—ADMINISTRATION OF or services; or PROGRAM FRAUD CIVIL REM- (ii) For the payment of money (in- EDIES ACT cluding money representing grants, loans, insurance or benefits) if the Sec. United States: 273.1 Purpose. (A) Provided any portion of the 273.2 Definitions. money requested or demanded; or 273.3 Liability for false claims and state- (B) Will reimburse such recipient or ments. party for any portion of the money 273.4 Non-exclusivity of penalty authority. paid on such request or demand; or 273.5 Investigations of alleged violations. (3) Made to the Postal Service which 273.6 Evaluation by reviewing official. 273.7 Concurrence of Attorney General. has the effect of decreasing an obliga- 273.8 Issuance of complaint. tion to pay or account for property, 273.9 Collection of civil penalties or assess- services, or money. ments. (b) Complaint refers to the adminis- 273.10 Reports. trative Complaint served by the Re- viewing Official on a Respondent pur- AUTHORITY: 31 U.S.C. Chapter 38; 39 U.S.C. 401. suant to § 273.8. (c) Investigating Official refers to the SOURCE: 52 FR 12901, Apr. 20, 1987, unless Inspector General of the Postal Service otherwise noted. or any designee within the United States Office of the Inspector General § 273.1 Purpose. who serves in a position for which the This part establishes procedures for rate of basic pay is not less than the imposing civil penalties and assess- minimum rate of basic pay for grade ments under the Program Fraud Civil GS–15 under the General Schedule. Remedies Act of 1986 (codified at 31 (d) Judicial Officer refers to the Judi- U.S.C. 3801–3812) against any person cial Officer or Acting Judicial Officer who makes, submits, or presents, or of the United States Postal Service or causes to be made, submitted, or pre- for purposes other than specified in sented, a false fictitious, or fraudulent § 962.21 of this title any designee within claim or written statement to the the Judicial Officer Department. Postal Service. Procedures governing (e) Knows or has reason to know, for the hearing and appeal rights of any purposes of establishing liability under person alleged to be liable for such pen- 31 U.S.C. 3802, means that, with respect alties and assessments are set forth in to a claim or statement, although no part 962 of this title. proof of specific intent to defraud is required, a person: § 273.2 Definitions. (1) Has actual knowledge that the (a) Claim means any request, demand, claim or statement is false, fictitious, or submission: or fraudulent; (1) Made to the Postal Service for (2) Acts in deliberate ignorance of the property, services, or money (including truth or falsity of the claim or state- money representing grants, loans, in- ment; or surance, or benefits); or (3) Acts in reckless disregard of the (2) Made to a recipient of property, truth or falsity of the claim or state- services, or money from the Postal ment. Service or to a party to a contract with (f) Person refers to any individual, the Postal Service: partnership, corporation, association, (i) For property or services if the or private organization. United States: (g) Postmaster General refers to the (A) Provided such property or serv- Postmaster General of the United ices; States or his designee.

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(h) Presiding Officer refers to an Ad- (iii) Includes or is supported by any ministrative Law Judge designated by written statement that— the Judicial Officer to conduct a hear- (A) Omits a material fact; ing authorized by 31 U.S.C. 3803 in ac- (B) Is false, fictitious, or fraudulent cordance with Part 962 of this title. as a result of such omission; and (i) Respondent refers to any person al- (C) Is a statement in which the per- leged to be liable for civil penalty or son making, presenting, or submitting assessment under 31 U.S.C. 3802. such statement has a duty to include (j) Reviewing Official refers to the such material fact; or General Counsel of the Postal Service (iv) Is for payment for the provision or any designee within the Law Depart- of property or services which the per- ment who serves in a position for son has not provided as claimed which the rate of basic pay is not less Shall be subject to, in addition to any than the minimum rate of basic pay for other remedy that may be prescribed grade GS–16 under the General Sched- by law, a civil penalty of not more ule. than $5,500 for each such claim. (k) Statement means any representa- (2) Each voucher, invoice, claim tion, certification, affirmation, docu- form, or other individual request or de- ment, record, or accounting or book- mand for property, services, or money keeping entry made: constitutes a separate claim. (1) With respect to a claim or to ob- (3) A claim shall be considered made, tain the approval or payment of a presented, or submitted to the Postal claim (including relating to eligibility Service, recipient, or party when such to make a claim); or claim is actually made to an agent, fis- (2) With respect to (including relat- cal intermediary, or other entity, in- ing to eligibility for)— cluding any State or political subdivi- (i) A contract with, or a bid or pro- sion thereof, acting for or on behalf of posal for a contract with; or the Postal Service, recipient, or party. (ii) A grant, loan, or benefit from, the (4) Each claim for property, services, Postal Service, or any State, political or money is subject to the civil penalty subdivision of a State, or other party, referred to in paragraph (a)(1) of this if the United States Government pro- section regardless of whether such vides any portion of the money or prop- property, service, or money is actually erty under such contract or for such delivered or paid. grant, loan, or benefit, or if the Gov- (5) If the Government has made pay- ernment will reimburse such State, po- ment on a claim, a person subject to litical subdivision, or party for any the civil penalty referred to in para- portion of the money or property under graph (a)(1) of this section shall also be such contract or for such grant, loan or subject to an assessment of not more benefit. than twice the amount of such claim or [52 FR 12901, Apr. 20, 1987, as amended at 56 twice the amount of that portion FR 55825, Oct. 30, 1991; 67 FR 16024, Apr. 4, thereof that is determined to be in vio- 2002; 72 FR 39012, July 17, 2007] lation of paragraph (a)(1) of this section. This assessment shall be in lieu of § 273.3 Liability for false claims and damages sustained by the United statements. States because of such claim. Section 3802 of title 31, United States (b) Statements. (1) Any person who Code, provides for liability as follows: makes, presents, or submits, or causes (a) Claims. (1) Any person who makes, to be made, presented, or submitted, a presents, or submits, or causes to be written statement that— made, presented, or submitted, a claim (i) The person knows or has reason to that the person knows or has reason to know— know— (A) Asserts a material fact which is (i) Is false, fictitious, or fraudulent; false, fictitious, or fraudulent; or or (B) Is false, fictitious, or fraudulent (ii) Includes or is supported by any because it omits a material fact that written statement asserting a material the person making, presenting or sub- fact which is false, fictitious, or fraud- mitting such statement had a duty to ulent; or include in such statement; and

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(ii) Contains or is accompanied by an chapter 38 of title 31, United States express certification or affirmation of Code. the truthfulness and accuracy of the (b) In the case of an administrative contents of the statement. or contractual action to suspend or Shall be subject to, in addition to any debar any person from eligibility to other remedy that may be prescribed enter into contracts with the Postal by law, a civil penalty of not more Service, a determination referred to in than $5,500 for each such statement. paragraph (a) of this section shall not (2) Each written representation, cer- be considered as a conclusive deter- tification, or affirmation constitutes a mination of such person’s responsi- separate statement. bility pursuant to Postal Service pro- (3) A statement shall be considered curement regulations. made, presented, or submitted to the Postal Service when such statement is § 273.5 Investigations of alleged viola- actually made to an agent, fiscal inter- tions. mediary, or other entity, including any (a) Investigations of allegations of li- State or political subdivision thereof, ability under 31 U.S.C. 3802 shall be acting for or on behalf of the Postal conducted by the Investigating Offi- Service. cial. (c) In any case in which it is deter- (b)(1) For purposes of an investiga- mined that more than one person is lia- tion under this part, the Investigating ble for making a claim or statement Official may issue a subpoena requiring under this section, the civil penalty re- the production of all information, doc- ferred to in paragraph (a)(1) of this sec- uments, reports, answers, records, action may be imposed on each such per- counts, papers, and data not otherwise son without regard to the amount of reasonably available to the Postal any penalties collected or demanded Service. Any subpoena issued by the from others. Investigating Official under this au- (d) In any case in which it is deter- thority shall cite 31 U.S.C. 3804(a) as mined that more than one person is lia- the authority under which it is issued, ble for making a claim under this sec- shall be signed by the Investigating Of- tion on which the Government has ficial, and shall command each person made payment, an assessment may be to whom it is directed to produce the imposed against any such person or specified documentary material at a jointly and severally against any com- prescribed time and place. bination of such persons. The aggre- (2) In the case of contumacy or re- gate amount of the assessments col- fusal to obey a subpoena issued pursu- lected with respect to such claim shall ant to paragraph (b)(1) of this section, not exceed twice the portion of such the district courts of the United States claim determined to be in violation of have jurisdiction to issue an appro- paragraph (a)(1) of this section. priate order for the enforcement of [52 FR 12901, Apr. 20, 1987, as amended at 56 such subpoena. Any failure to obey FR 55825, Oct. 30, 1991; 61 FR 55750, Oct. 29, such order of the court may be punish- 1996] able as contempt. In any case in which the Postal Service seeks the enforce- § 273.4 Non-exclusivity of penalty au- ment of a subpoena under this section, thority. the Postal Service shall request the At- (a) A determination by the Reviewing torney General to petition the district Official that there is adequate evidence court for the district in which the per- to believe that a person is liable under son receiving the subpoena resides or 31 U.S.C 3802, or a final determination conducts business to issue such an that a person is liable under such stat- order. ute, may provide the Postal Service (c) Upon completing an investigation with grounds for commencing any ad- under this part, the Investigating Offi- ministrative or contractual action cial shall submit to the Reviewing Offi- against such person which is author- cial a report containing the findings ized by law and which is in addition to and conclusions of his investigation, any action against such person under including:

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(1) A description of the claims or (2) A description of the claims or statements for which liability under 31 statements for which liability under 31 U.S.C. 3802 is alleged; U.S.C. 3802 is alleged; (2) A description of any evidence (3) A statement specifying the evi- which supports allegations of liability dence that supports the allegations of under 31 U.S.C. 3802, or where applica- liability; ble, a description of any evidence that (4) An estimate of the amount of tends to support a conclusion that such money or the value of property or serv- statute has not been violated; ices allegedly requested or demanded (3) An estimate of the amount of in violation of 31 U.S.C. 3802; money or the value of property or serv- (5) A statement of any exculpatory or ices allegedly requested or demanded mitigating circumstances which may in violation of 31 U.S.C. 3802; relate to the claims or statements (4) A statement of any exculpatory or under investigation; mitigating circumstances which may (6) A statement of the amount of pen- relate to the claims or statements alties and assessments that, consid- under investigation; ering the factors listed in paragraphs (5) A statement of the amount of pen- (b)(4) and (5) of this section, the Re- alties and assessments that, consid- viewing Official recommends be de- ering the information described in manded from the person alleged to be paragraphs (c) (3) and (4) of this sec- liable; and tion, the Investigating Official rec- (7) A statement that, in the opinion ommends be demanded from the person of the Reviewing Official, there is a alleged to be liable; and reasonable prospect of collecting the (6) An estimate of the prospects of amount specified in paragraph (b)(6) of collecting the amount specified in this section and the reasons supporting paragraph (c)(5) of this section, and such statement. any reasons supporting such estimate. (c) No allegations of liability under (d) Nothing in these regulations 31 U.S.C. 3802 with respect to any claim modifies any responsibility of the In- made, presented, or submitted by any vestigating Official to report violations person shall be referred to the Judicial of criminal law to the Attorney Gen- Officer if the Reviewing Official deter- eral mines that (1) an amount of money in [52 FR 12901, Apr. 20, 1987, as amended at 56 excess of $150,000; or (2) property or FR 55825, Oct. 30, 1991] service with a value in excess of $150,000 is requested or demanded in § 273.6 Evaluation by reviewing offi- violation of section 3802 in such claim cial. or in a group of related claims which (a) Based upon the investigatory re- are submitted at the time such claim is port prepared by the Investigating Offi- submitted. cial, the Reviewing Official shall determine whether there is adequate evi- § 273.7 Concurrence of Attorney Gen- dence to believe that a person is liable eral. under 31 U.S.C. 3802, and, if so, whether (a) The Attorney General is required prosecution would likely result in the by 31 U.S.C. 3803(b) to respond to the imposition and collection of civil pen- Reviewing Official’s written notice de- alties and applicable assessments. scribed in § 273.6 within 90 days. The (b) If the Reviewing Official deter- Reviewing Official may refer allega- mines that a case has merit and should tions of liability to the Judicial Officer be referred to the Judicial Officer for only if the Attorney General or his des- assignment to a Presiding Officer, he ignee approves such action in a written must first transmit to the Attorney statement which specifies: General a written notice containing (1) That the Attorney General or his the following information: designee approves the referral to the (1) A statement setting forth the Re- Judicial Officer of the allegations of li- viewing Official’s reasons for proposing ability set forth in the notice described to refer the case to a Presiding Officer; in § 273.6; and

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(2) That the initiation of a pro- (b) Service of a Complaint issued ceeding under the Program Fraud Civil under paragraph (a) of this section Remedies Act is appropriate. must be effected by registered or cer- (b) If at any time after the Attorney tified mail, return-receipt requested, or General approves the referral of a case by personal delivery. In the case of per- to the Judicial Officer, the Attorney sonal service, the person making serv- General or his designee transmits to ice shall, if possible, secure from the the Postmaster General a written find- person sought to be served, or his or ing that the continuation of any pro- her agent, a written acknowledgment ceeding under the Program Fraud Civil of receipt, showing the date and time Remedies Act with respect to a claim of such receipt. If the person upon or statement may adversely affect any whom service is made declines to ac- pending or potential criminal or civil knowledge receipt, the person effecting action related to such claim or state- service shall execute a statement, indi- ment, such proceeding shall be imme- cating the time, place and manner of diately stayed and may be resumed service, which shall constitute evi- only upon written authorization of the dence of service. Attorney General. [52 FR 12901, Apr. 20, 1987, as amended at 56 FR 55825, Oct. 30, 1991] § 273.8 Issuance of complaint. (a) If the Attorney General or his § 273.9 Collection of civil penalties or designee approves the referral of alle- assessments. gations of liability to the Judicial Offi- (a) Any penalty or assessment im- cer, the Reviewing Official shall serve posed under the Program Fraud Civil on the Respondent, pursuant to para- Remedies Act may be recovered in a graph (b) of this section, a Complaint, civil action brought by the Attorney which: General. In any such action, no matter (1) Specifies the allegations of liabil- that was raised or that could have been ity against the Respondent, including raised in a hearing conducted under the statutory basis for liability; part 962 of this title or pursuant to ju- (2) Identifies the claims or state- dicial review under 31 U.S.C. 3805 may ments that are the basis for the alleged be raised as a defense and the deter- liability, and the reasons why liability mination of liability and the deter- allegedly arises from such claims or mination of amounts of penalties and statements; assessments shall not be subject to re- (3) Specifies the amount of penalties view. A civil action to recover a pen- or assessments the Postal Service alty or assessment shall be commenced seeks to impose; within three years after the date on (4) Informs the Respondent of his which the determination of liability right to request an oral hearing before, for such penalty or assessment be- or a decision on the record by, a Pre- comes final. siding Officer concerning the allega- (b) The amount of any penalty or as- tions of liability and the amount of sessment which has become final may proposed penalties or assessments; be collected by administrative offset in (5) Informs the Respondent of how to accordance with 31 U.S.C 3716, 3807. request a hearing described in para- (c) Any penalty or assessment im- graph (a)(4) of this section; posed by the Postal Service under this (6) Includes a copy of the procedures part shall be deposited in the Postal which govern hearings under the Pro- Service Fund established by section gram Fraud Civil Remedies Act, and 2003 of title 39. which are set forth in part 962 of this title; and § 273.10 Reports. (7) Notifies the Respondent that his (a) Not later than October 31 of each or her failure to request a hearing on year, the Postmaster General shall pre- the issues raised by the Complaint pare and transmit to the appropriate within 30 days of its receipt may result committees and subcommittees of the in the imposition of the proposed pen- Congress an annual report summa- alty and assessments pursuant to rizing actions taken under the Pro- §§ 962.4(a) and 962.15(d) of this title. gram Fraud Civil Remedies Act during

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the most recent 12-month period end- the incident and its effect on their mail ing the previous September 30. shipment(s). (b) The report referred to in para- [39 FR 20974, June 17, 1974, as amended at 40 graph (a) of this section shall include FR 2179, Jan. 10, 1975] the following information for the period covered by the report: § 281.2 Action required by processing (1) A summary of matters referred by postal officials. the Investigating Official to the Re- Postal officials processing salvable viewing Official under this part; mail recovered from the scene of an ac- (2) A summary of matters trans- cident or catastrophe are responsible mitted to the Attorney General under for giving timely notification of the in- this part; cident to the sectional center director (3) A summary of all hearings con- of customer services at the office of ducted by a Presiding Officer under mailing. The notification should in- part 962 of this title, and the results of clude, but not be limited to: such hearings; and (a) The determinable names of the (4) A summary of the actions taken major mailers involved; during the reporting period to collect (b) The nature and extent of damage any civil penalty or assessment im- or destruction; posed under the Program Fraud Civil (c) Anticipated delivery delay; and Remedies Act. (d) If known, the shipment delivery destination(s). Damage to or Destruction of Firm [39 FR 20974, June 17, 1974, as amended at 40 Mailings FR 2179, Jan. 10, 1975]

PART 281—FIRM MAILINGS DAM- § 281.3 Postal inspector responsibil- AGED OR DESTROYED THROUGH ities. TRANSPORTATION ACCIDENTS The postal inspector investigating OR CATASTROPHES the incident should assure that the processing postal officials are fulfilling Sec. their notification responsibilities on a 281.1 Notification of firm mailers. timely basis. Should the situation arise 281.2 Action required by processing postal where no postal officials are involved officials. in processing affected mail, then the 281.3 Postal inspector responsibilities. investigating postal inspector will take 281.4 Disclaimer. necessary action to insure that appro- AUTHORITY: 39 U.S.C. 401, 403, and 404. priate notification is made. § 281.1 Notification of firm mailers. [39 FR 20974, June 17, 1974] Whenever bulk firm mail shipments § 281.4 Disclaimer. are involved in transportation acci- The Postal Service will not be liable dents or catastrophes, such as train or in damages for any loss occasioned by highway accidents, fire, flood, etc., it any failure to notify firm mailers in will be the responsibility of the sec- accordance with this part of damage to tional center director of customer serv- or destruction of firm mailings. ices at the office of mailing to give known mailers timely notification of [39 FR 20974, June 17, 1974]

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PART 310—ENFORCEMENT OF THE delivery with addressed articles of mer- PRIVATE EXPRESS STATUTES chandise, publications, or other items. Selective delivery plans do not include Sec. distributions of materials without 310.1 Definitions. written addresses to passersby on a 310.2 Unlawful carriage of letters. particular street corner, or to all resi- 310.3 Exceptions. dents or randomly selected residents of 310.4 Responsibility of carriers. an area. A message bearing the name 310.5 Payment of postage on violation. or address of a specific person or place 310.6 Advisory opinions. is a letter even if it is intended by the 310.7 Amendment of regulations. sender to be read or otherwise used by AUTHORITY: 39 U.S.C. 401, 404, 601–606; 18 some person or persons other than or U.S.C. 1693–1699. in addition to the addressee. SOURCE: 39 FR 33211, Sept. 16, 1974, unless (4) Methods by which messages are otherwise noted. recorded on tangible objects include, but are not limited to, the use of writ- § 310.1 Definitions. ten or printed characters, drawing, (a) Letter is a message directed to a holes, or orientations of magnetic par- specific person or address and recorded ticles in a manner having a predeter- in or on a tangible object, subject to mined significance. the following: (5) Whether a tangible object bears a (1) Tangible objects used for letters message is to be determined on an ob- include, but are not limited to, paper jective basis without regard to the in- (including paper in sheet or card form), tended or actual use made of the object recording disks, and magnetic tapes. sent. Tangible objects used for letters do not (6) Identical messages directed to include (i) objects the material or more than one specific person or ad- shape and design of which make them dress or separately directed to the valuable or useful for purposes other same person or address constitute sepa- than as media for long-distance com- rate letters. munications, unless they are actually (7) The following are not letters with- used as media for personal and business in the meaning of these regulations: 1 correspondence, and (ii) outsized, rigid (i) Telegrams. objects not capable of enclosure in en- (ii) Checks, drafts, promissory notes, velopes, sacks, boxes or other con- bonds, other negotiable and nonnego- tainers commonly used to transmit let- tiable financial instruments, stock cer- ters or packets of letters. tificates, other securities, insurance (2) Message means any information or policies, and title policies when intelligence that can be recorded as de- shipped to, from, or between financial scribed in paragraph (a)(4) of this sec- institutions. tion. (A) As used above, checks and drafts (3) A message is directed to a ‘‘spe- include documents intrinsically related cific person or address’’ when, for exam- to and regularly accompanying the ple, it, or the container in which it is movement of checks or drafts within carried, singly or with other messages, identical or different, is marked for de- 1 Several of the items enumerated in this livery to a specific person or place, or paragraph (a)(7) do not self-evidently lie out- is delivered to a specific person or side of the definition of ‘‘letter’’. To the ex- place in accordance with a selective de- tent, however, that there is any question livery plan. Selective delivery plans in- whether these items may properly be excluded by definition, the Postal Service has clude delivery to particular persons or determined by adoption of these regulations addresses by use of detached address la- that the restrictions of the Private Express bels or cards; address lists; memorized Statutes are suspended pursuant to 39 U.S.C. groups of addresses; or ‘‘piggy-backed’’ 601(b). 148

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the banking system. ‘‘Checks’’ do not vately, or privately and by mail, to include materials accompanying the fewer than 25 separate persons or movement of checks to financial insti- places will generally not be treated as tutions from persons who are not fi- a book or catalog falling within this nancial institutions, or vice versa, ex- exclusion. cept such materials as would qualify (vi) Matter sent from a printer, sta- under § 310.3(a) if ‘‘checks’’ were treated tioner, or similar source, to a person as cargo. Specifically, for example, ordering such matter for use as his let- ‘‘checks’’ do not include bank state- ters. This exclusion applies whether or ments sent to depositors showing de- not the printer, stationer, or similar posits, debits, and account balances. source is owned by or affiliated with (B) As used above, financial institu- the person who orders such matter for tions means: use as his letters. (1) As to checks and drafts: banks, (vii) Letters sent to a records storage savings banks, savings and loan insti- center exclusively for storage, letters tutions, credit unions, and their of- sent exclusively for destruction, letters fices, affiliates, and facilities. retrieved from a records storage cen- (2) As to other instruments: institu- ter, and letters sent as part of a house- tions performing functions involving hold or business relocation. the bulk generation, clearance, and (viii) Tags, labels, stickers, signs or transfer of such instruments. posters the type-size, layout or phys- (iii) Abstracts of title, mortgages and ical characteristics of which indicate other liens, deeds, leases, releases, arti- they are primarily intended to be at- cles of incorporation, papers filed in tached to other objects for reading. lawsuits or formal quasi-judicial proceedings, and orders of courts and of (ix) Photographic material being sent quasi-judicial bodies. by a person to a processor and proc- (iv) Newspapers and periodicals. essed photographic material being re- (v) Books and catalogs consisting of turned from the processor to the per- 24 or more bound pages with at least 22 son sending the material for proc- printed, and telephone directories. Sep- essing. arate letters of less than 24 bound and (x) Copy sent from a person to an 22 printed pages bound to other mate- independent or company-owned printer rial do not qualify for this exclusion. In or compositor, or between printers and determining whether separate letters compositors, and proofs or printed have been bound to other material, the matter returned from the printer or following factors will be considered, compositor to the office of the person along with any other relevant factors: who initially sent the copy. Whether the parts are visually similar; (xi) Sound recordings, films, and whether the parts were printed and packets of identical printed letters bound together at the same time and containing messages all or the over- by the same process; whether the bind- whelming bulk of which are to be dis- ing serves an important purpose and seminated to the public. The ‘‘public’’ has been a longstanding practice; and does not include individuals residing at whether the same individual reads all the place of address; individuals em- parts of the bound document. Ordi- ployed by the organization doing busi- narily, books and catalogs deal with ness at the place of address (whether or matters of interest to, and are intended not the actual place of employment is for, a substantial number of recipients. the place of address); individuals who In addition, books generally contain a are members of an organization, if an substantial number of pages. Accord- organization is located at the place of ingly, this exclusion will not apply address; or other individuals who, indi- when the nature of the message con- vidually or as members of a group, are veyed, the limited numbers of pub- reasonably identifiable to the sender. lished copies and of recipients, the lim- (xii) Computer programs recorded on ited number of pages, or other relevant media suitable for direct input. For the factors suggest that it is not appro- conditions under which the Private Ex- priate to treat the material as a book press Statutes are suspended for data or catalog. An item distributed pri- processing materials, see § 320.2.

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(b) Packet means two or more letters, (b) Activity described in paragraph identical or different, or two or more (a) of this section is lawful with respect packets of letters, under one cover or to a letter if: otherwise bound together. As used in (1)(i) The letter is enclosed in an en- these regulations, unless the context velope or other suitable cover; otherwise requires, ‘‘letter’’ or ‘‘letters’’ (ii) The amount of postage which includes ‘‘packet’’ or ‘‘packets’’. would have been charged on the letter (c) Person means an individual, cor- if it had been sent through the Postal poration, association, partnership, gov- Service is paid by stamps, or postage ernmental agency, or other organiza- meter stamps, on the cover or by other tion or entity. methods approved by the Postal Serv- (d) Post routes are routes on which ice; mail is carried by the Postal Service, (iii) The name and address of the per- and includes post roads as defined in 39 son for whom the letter is intended ap- U.S.C. 5003, as follows: pear on the cover; (1) The waters of the United States, (iv) The cover is so sealed that the during the time the mail is carried letter cannot be taken from it without thereon; defacing the cover; (2) Railroads or parts of railroads and (v) Any stamps on the cover are can- air routes in operation; celed in ink by the sender; and (3) Canals, during the time the mail (vi) The date of the letter, or of its is carried thereon; transmission or receipt by the carrier, (4) Public roads, highways, and toll is endorsed on the cover in ink by the roads during the time the mail is car- sender or carrier, as appropriate; or ried thereon; and (2)(i) The activity is in accordance with the terms of a written agreement (5) Letter-carrier routes established between the shipper or the carrier of for the collection and delivery of mail. the letter and the Postal Service. Such (e) Private carriage, private carrier, and an agreement may include some or all terms of similar import used in connec- of the provisions of paragraph (b)(1) of tion with the Private Express Statutes this section, or it may change them, or these regulations mean carriage by but it must: anyone other than the Postal Service, (A) Adequately ensure payment of an regardless of any meaning ascribed to amount equal to the postage to which similar terms under other bodies of law the Postal Service would have been en- or regulation. titled had the letters been carried in (f) The Private Express Statutes are set the mail; forth in 18 U.S.C. 1693–1699 and 39 (B) Remain in effect for a specified U.S.C. 601–606 (1970). period (subject to renewals); and (g) The term identical printed letters (C) Provide for periodic review, audit, includes letters that differ only in and inspection. name, address or serial number. (ii) Possible alternative arrange- [39 FR 33211, Sept. 16, 1974, as amended at 44 ments may include but are not limited FR 52833, Sept. 11, 1979; 45 FR 3034, Jan. 16, to: 1980; 45 FR 59873, Sept. 11, 1980; 48 FR 42354, (A) Payment of a fixed sum at speci- Sept. 27, 1982] fied intervals based on the shipper’s projected shipment of letters for a § 310.2 Unlawful carriage of letters. given period, as verified by the Postal (a) It is generally unlawful under the Service; or Private Express Statutes for any per- (B) Utilization of a computer record son other than the Postal Service in to determine the volume of letters any manner to send or carry a letter on shipped during an interval and the ap- a post route or in any manner to cause plicable postage to be remitted to the or assist such activity. Violation may Postal Service. result in injunction, fine or imprison- (c) The Postal Service may suspend ment or both and payment of postage the operation of any part of paragraph lost as a result of the illegal activity (b) of this section where the public in- (see § 310.5). terest requires the suspension.

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(d) Activity described in paragraph rying function), including but not lim- (a) of this section is permitted with re- ited to salary, annual vacation time, spect to letters which: absence allowed for illness, health ben- (1) Relate to some part of the cargo efits, workmen’s compensation insur- of, or to some article carried at the ance, and retirement benefits. same time by, the conveyance carrying (3) Separately incorporated carriers it (see § 310.3(a)); are separate entities for purposes of (2) Are sent by or addressed to the this exception, regardless of any sub- carrier (see § 310.3(b)); sidiary, ownership, or leasing arrange- (3) Are conveyed or transmitted with- ment. When, however, two concerns out compensation (see § 310.3(c)); jointly operate an enterprise with joint (4) Are conveyed or transmitted by employees and share directly in its rev- special messenger employed for the enues and expenses, either of the con- particular occasion only, provided that cerns may carry the letters of the joint not more than twenty-five such letters enterprise. are conveyed or transmitted by such (c) Private hands without compensa- special messenger (see § 310.3(d)); or tion. The sending or carrying of letters (5) Are carried prior or subsequent to without compensation is permitted. mailing (see § 310.3(e)). Compensation generally consists of a [39 FR 33211, Sept. 16, 1974, as amended at 45 monetary payment for services ren- FR 77029, Nov. 21, 1980] dered. Compensation may also consist, however, of non-monetary valuable § 310.3 Exceptions. consideration and of good will Thus, (a) Cargo. The sending or carrying of for example, when a business relation- letters is permissible if they accom- ship exists or is sought between the pany and relate in all substantial re- carrier and its user, carriage by the spects to some part of the cargo or to carrier of the user’s letter will ordi- the ordering, shipping or delivering of narily not fall under this exception; or, the cargo. when a person is engaged in the trans- (b) Letters of the carrier. (1) The send- portation of goods or persons for hire, ing or carrying of letters is permissible his carrying of letters ‘‘free of charge’’ if they are sent by or addressed to the for customers whom he does charge for person carrying them. If the individual the carriage of goods or persons does actually carrying the letters is not the not fall under this exception. person sending the letters or to whom (d) Special messenger. (1) The use of a the letters are addressed, then such in- special messenger employed for the dividual must be an officer or employee particular occasion only is permissible of such person (see § 310.3(b)(2)) and the to transmit letters if not more than letters must relate to the current busi- twenty-five letters are involved. The ness of such person. permission granted under this excep- (2) The fact that the individual actu- tion is restricted to use of messenger ally carrying the letters may be an of- service on an infrequent, irregular ficer or employee of the person sending basis by the sender or addressee of the the letters or to whom the letters are message. addressed for certain purposes does not (2) A special messenger is a person necessarily mean that he is an officer who, at the request of either the sender or employee for purposes of this excep- or the addressee, picks up a letter from tion. The following factors bear on the sender’s home or place of business qualifications for the exception: the and carries it to the addressees home carrying employee is employed for a or place of business, but a messenger or substantial time, if not fulltime (let- carrier operating regularly between ters must not be privately carried by fixed points is not a special messenger. casual employees); the carrying em- (e) Carriage prior or subsequent to mail- ployee carries no matter for other ing. (1) The private carriage of letters senders; the carrying employee is a which enter the mail stream at some regular salaried employee and shares in point between their origin and their all privileges enjoyed by other regular destination is permissible. Except as employees (including employees not provided in paragraph (e)(3) of this sec- engaged primarily by the letter car- tion, however, the carriage of letters

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from a place where they have been been entitled had it carried the letters opened, read, separated, or otherwise between their origin and destination. utilized, does not fall within this ex- (b) The amount equal to postage will ception even though such letters had be due and payable not later than 15 previously been in the mail stream. days after receipt of formal demand Similarly, the carriage of letters to a from the Inspection Service or the place where they will be consolidated Manager, Mailing Standards, USPS or otherwise utilized does not fall with- Headquarters, unless an appeal is in this exception even though they will taken to the Judicial Officer Depart- subsequently enter the mail stream. ment in accordance with rules of proce- (2) Examples of permitted activities dure set out in part 959 of this chapter. are the pickup and carriage of letters (c) Refusal to pay an unappealed de- which are delivered to post offices for mand or a demand that becomes final mailing; the pickup and carriage of let- after appeal will subject the violator to ters at post offices for delivery to ad- civil suit by the Postal Service to col- dressees; and the bulk shipment of in- lect the amount equal to postage. dividually addressed letters ultimately (d) The payment of amounts equal to carried by the Postal Service. postage on violation shall in no way (3) The private carriage of letters limit other actions to enforce the Pri- from branches of an organization to a vate Express Statutes by civil or crimi- location for preparation for mailing nal proceedings. does not constitute a consolidation. [39 FR 33211, Sept. 16, 1974, as amended at 69 The private carriage of letters from an FR 54006, Sept. 7, 2004; 75 FR 12123, Mar. 15, organization’s point of mail delivery to 2010] its branches in the locality does not constitute a separation. § 310.6 Advisory opinions. [39 FR 33211, Sept. 16, 1974, as amended at 44 An advisory opinion on any question FR 52834, Sept. 11, 1979; 45 FR 59873, Sept. 11, arising under this part and part 320 of 1980] this chapter may be obtained by writing the General Counsel, U.S. Postal § 310.4 Responsibility of carriers. Service, 475 L’Enfant Plaza SW., Wash- Private carriers are cautioned to ington, DC 20260–1100. A numbered se- make sure that their carriage of mat- ries of advisory opinions is available ter is lawful within the definition, ex- for inspection by the public in the Li- ceptions, suspension, and conditions brary of the U.S. Postal Service, and contained in this part and in part 320 of copies of individual opinions may be this chapter. They should take reason- obtained upon payment of charges for able measures to inform their cus- duplicating services. tomers of the contents of these regula- [75 FR 12123, Mar. 15, 2010] tions so that only proper matter is tendered to them for carriage. Carriers § 310.7 Amendment of regulations. should desist from carrying any matter when the form of shipment, identity of Amendments of the regulations in sender or recipient, or any other infor- this part and in part 320 may be made mation reasonably accessible to them only in accordance with the rule- indicates that matter tendered to them making provisions of the Administra- for carriage is not proper under these tive Procedure Act. regulations. [40 FR 23295, May 29, 1975]

§ 310.5 Payment of postage on violation. PART 320—SUSPENSION OF THE PRIVATE EXPRESS STATUTES (a) Upon discovery of activity made unlawful by the Private Express Stat- Sec. utes, the Postal Service may require 320.1 Definitions. any person or persons who engage in, 320.2 Suspension for certain data processing cause, or assist such activity to pay an materials. amount or amounts not exceeding the 320.3 Operations under suspension for cer- total postage to which it would have tain data processing materials.

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320.4 Suspension for certain letters of col- mestic point and a foreign point shall lege and university organizations. be deemed to begin at the time mate- 320.5 Suspension for certain international- rials of foreign origin are received at ocean carrier-related documents. the international gateway city or end 320.6 Suspension for extremely urgent letters. at the time materials of domestic ori- 320.7 Suspension for advertisements accom- gin leave the international gateway panying parcels or periodicals. city. This suspension does not apply to 320.8 Suspension for international re- carriages from or to originating offices mailing. that are neither part of the firm own- 320.9 Revocation or amendment of suspen- ing the data processing center nor data sions. processing customers of the firm own- AUTHORITY: 39 U.S.C. 401, 404, 601–606; 18 ing the data processing center. U.S.C. 1693–1699. (c) For purposes of this suspension, (1) ‘‘addressee’s next business day’’ § 320.1 Definitions. means the first calendar day, stated in The definitions in § 310.1 apply to part his local time, on which he conducts 320 as well. 1 business, following the calendar day of [39 FR 33212, Sept. 16, 1974] dispatch, stated in the sender’s local time; (2) ‘‘data processing’’ means § 320.2 Suspension for certain data electro-mechanical or electronic proc- processing materials. essing and includes the recording of (a) The operation of 39 U.S.C. 601(a) data by electro-mechanical or elec- (1) through (6) and § 310.2(b) (1) through tronic means for further processing; (6) of this chapter is suspended on all and (3) ‘‘data processing materials’’ post routes for data processing mate- means materials of all types that are rials defined in paragraph (c) of this sent exclusively for data processing section on the terms detailed in para- and are ready for immediate data proc- graph (b) of this section, subject to the essing, but only if they are produced operating requirements in § 320.3. recurringly in the course of the normal (b) The suspension referred to in business operations of the office origi- paragraph (a) of this section is for data nating them or receiving them back processing materials conveyed (1) to a from the processing center. The per- data processing center, if carriage is formance of clerical work which is completed within 12 hours or by noon merely preparatory and incidental to of the addressee’s next business day the commencement of data processing and if data processing work is com- is not, for purposes of this suspension, menced on such materials within 36 inconsistent with the requirement that hours of their receipt at the center; or the materials be sent exclusively for (2) back from the data processing cen- data processing and be ready for imme- ter to the address of the office origi- diate data processing. nating the incoming materials, if car- [44 FR 52834, Sept. 11, 1979] riage is completed within 12 hours or by noon of the addressee’s next busi- § 320.3 Operations under suspension ness day, and if data processing work for certain data processing mate- was commenced on the incoming materials. rials within 36 hours of their receipt at (a) Carriers intending to establish or the center. For purposes of the time alter operations based on the suspen- limitations for completion of delivery sion granted pursuant to § 320.2 shall, referred to in the preceding sentence, as a condition to the right to operate delivery of shipments between a do- under the suspension, notify the Man- ager, Mailing Standards, U.S. Postal 1 Several of the items enumerated in Service, 475 L’Enfant Plaza SW, Rm. § 310.1(a)(7) do not self-evidently lie outside 3436, Washington, DC 20260–3436, of of the definition of ‘‘letter’’. To the extent, their intention to establish such oper- however, that there is any question whether ations not later than the beginning of these items may properly be excluded by definition, the Postal Service has determined such operations. Such notification, on by adoption of these regulations that the re- a form available from the office of strictions of the Private Express Statutes Mailing Standards, shall include infor- are suspended pursuant to 39 U.S.C. 601(b). mation on the identity and authority

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of the carrier and the scope of its pro- Address lllllllllllllllllll posed operations. State of Incorporation lllllllllll (b) Carriers operating under the sus- Geographical Area To Be Served llllll pension granted pursuant to § 320.2 are 1. Designate the specific markets or areas responsible for making sure that their in which operations will be conducted. carriage of matter under the suspen- 2. Describe specifically any authorizations sion meets all conditions contained in issued by local, state, or federal regulatory § 320.2. (See § 310.4.) The containers or agencies under which operations will be con- covers of any matter carried under the ducted. suspension must be made available for (Signature of Officer) examination upon request by a properly identified representative of Mail- (Name and Title) ing Standards. Carrier records—either Subscribed and sworn to before me this in the form of notations on the con- ll day of lllll, 197ll. tainers or covers of any matter carried under the suspension granted pursuant Notary Public to § 320.2 or in the form of records kept Seal by employees of the actual times they My commission expires —————————— make delivery or pickup stops—must be sufficient to show that the delivery (NOTE: False statements contained herein of such matter was completed within are punishable by law, 18 U.S.C. 1001.) the applicable time limitation pre- [39 FR 33212, Sept. 16, 1974; 39 FR 34533, Sept. scribed in § 320.2. The provisions of this 26, 1974, as amended at 40 FR 23295, May 29, paragraph shall not restrict the Postal 1975; 44 FR 52835, Sept. 11, 1979; 69 FR 54006, Service in the exercise of search pow- Sept. 7, 2004; 75 FR 12123, Mar. 15, 2010] ers conferred upon it by law. (c) The filing of notifications under § 320.4 Suspension for certain letters this section does not relieve the oper- of college and university organiza- ator of responsibility for assuring that tions. its operations conform to applicable The operation of 39 U.S.C. 601(a) (1) statutes and regulations. through (6) and § 310.2(b) (1) through (6) (d) Failure to comply with the notifi- of this chapter is suspended on all post cation requirements of this section and routes to permit colleges and univer- carriage of material or other action in sities to carry in their internal mail violation of other provisions of this systems the letters of their bona fide part and of part 310 are grounds for ad- student or faculty organizations to ministrative revocation of the suspen- campus destinations. This suspension sion as to a particular carrier for a pe- does not cover the letters of faculty riod of not less than one year, in a pro- members, students, or organizations ceeding instituted by the General other than bona fide student or faculty Counsel, following a hearing by the Ju- organizations of the carrying college or dicial Officer Department in accord- university. Colleges and universities ance with the rules of procedure set choosing to provide their student or out in part 959 of this chapter. faculty organizations access to their NOTE: The form referred to in § 320.3 is re- internal mail systems are responsible produced below. for assuring that only letters of bona fide student or faculty organizations NOTICE OF INTENT TO ESTABLISH OPER- addressed to campus destinations are ATIONS UNDER SUSPENSION OF THE carried. (See § 310.4.) For purposes of PRIVATE EXPRESS STATUTES 1 this suspension, ‘‘internal mail sys- (SEE 39 CFR PART 320, SUSPENSION OF tems’’ are those which carry letters on, THE PRIVATE EXPRESS STATUTES) between, and among the various cam- puses of a single college or university Private Carriage of Letters and which operate in accordance with

Name of Carrier lllllllllllllll essing materials. This form should be used for an initial notice of operations and for 1 Information relates exclusively to oper- any amendments to the initial or subsequent ations under the suspension for data proc- notices.

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the Letters of the carrier exception in 39 (2) Letters sent from the 48 contig- CFR 310.3(b). uous states of the United States to other jurisdictions of the United States [44 FR 52835, Sept 11, 1979] or to other nations are deemed ‘‘deliv- § 320.5 Suspension for certain inter- ered’’ when they are in the custody of national-ocean carrier-related docu- the international or overseas carrier at ments. its last scheduled point of departure The operation of 39 U.S.C. 601(a) (1) from the 48 contiguous states. Letters through (6) and § 310.2(b) (1) through (6) sent from other jurisdictions of the of this chapter is suspended on all post United States or from other nations routes for documents, sent by a shipper into the 48 contiguous states are or an ocean carrier from a foreign ori- deemed ‘‘dispatched’’ when they are in gin to a United States ocean-carrier the custody of the domestic carrier, port city destination or from a United having been passed by United States States ocean-carrier port city origin to Customs, if applicable, at the letters’ a foreign destination, that would be ex- point of arrival in the 48 contiguous cepted under § 310.3(a) if the documents states. accompanied the cargo. This suspen- (3) Except as provided in this para- sion covers only shipments to or from graph (b)(3), the times and time limits ports where the cargo to which the doc- specified in paragraph (b)(1) of this sec- uments relate is actually loaded on, or tion are not applicable to any locations unloaded from, an ocean vessel. For outside the 48 contiguous states. The purposes of this suspension ‘‘foreign times and time limits specified in para- origins’’ or ‘‘foreign destinations’’ means graph (b)(1) of this section are applica- origins or destinations outside the con- ble to letters dispatched and delivered tiguous 48 states. wholly within Alaska, Hawaii, Puerto [44 FR 52835, Sept 11, 1979] Rico or a territory or possession of the United States. The regulations pro- § 320.6 Suspension for extremely ur- vided in paragraph (b)(2) of this section gent letters. relating to the delivery and dispatch of (a) The operation of 39 U.S.C. 601(a) letters are applicable by analogy to (1) through (6) and § 310.2(b) (1) through letters shipped between these jurisdic- (6) of this chapter is suspended on all tions and other nations. post routes for extremely urgent let- (c) It will be conclusively presumed ters if the conditions of either para- that a letter is extremely urgent and is graph (b) or (c) of this section, and of covered by the suspension if the the other paragraphs of this section, amount paid for private carriage of the are met. letter is at least three dollars or twice (b)(1) For letters dispatched within 50 the applicable U.S. postage for First- miles of the intended destination, de- Class Mail (including priority mail) livery of those dispatched by noon whichever is the greater. If a single must be completed within 6 hours or by shipment consists of a number of let- the close of the addressee’s normal ters that are picked up together at a business hours that day, whichever is single origin and delivered together to later, and delivery of those dispatched a single destination, the applicable after noon and before midnight must be U.S. postage may be computed for pur- completed by 10 A.M. of the addressee’s poses of this paragraph as though the next business day. For other letters, shipment constituted a single letter of delivery must be completed within 12 the weight of the shipment. If not actu- hours or by noon of the addressee’s ally charged on a letter-by-letter or next business day. The suspension is shipment-by-shipment basis, the available only if the value or useful- amount paid may be computed for pur- ness of the letter would be lost or poses of this paragraph on the basis of greatly diminished if it is not delivered the carrier’s actual charge divided by a within these time limits. For any part bona fide estimate of the average num- of a shipment of letters to qualify ber of letters or shipments during the under this paragraph (b), each of the period covered by the carrier’s actual letters must be extremely urgent. charge.

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(d) The sender must prominently istrative proceedings for collection of mark the outside covers or containers postage (see § 310.5) or by civil or crimi- of letters carried under this suspension nal proceedings. with the words ‘‘Extremely Urgent’’ or (f) The following examples illustrate ‘‘Private Carriage Authorized by Postal the application of this suspension. Regulations (39 CFR 320.6)’’ or with a Example (1). The headquarters of a city po- similar legend identifying the letters lice department each night compiles a list of as carried pursuant to this suspension. the license plate numbers and descriptions of In addition, each outside container or automobiles reported stolen within the met- cover must show the name and address ropolitan area during the previous 24 hours. of the carrier, and the name and ad- This list is delivered by 7 a.m. the following dress of the addressee. Carrier records day to each of the local precinct offices lo- must be sufficient to show that the de- cated throughout the city. By 9 a.m. that livery of the letters was completed day, the list is circulated for use by law enforcement units operating from each office. within the applicable time limitations, Effective police recovery of stolen vehicles if carried under the authority of para- depends upon having this information hand- graph (b) of this section, and must be ed out in written form to all units on at least made available for inspection at the re- a daily basis. The private carriage of these quest of the Postal Service. The re- lists would qualify under the test set in para- quired records may be either in the graph (b) of this section. form of notations on the containers or Example (2). The same police department covers of any letters asserted to be car- headquarters also from time to time distributes memoranda advising the local precinct ried under this suspension, or in the officers on departmental policy and vacation form of records kept by employees of schedules, and responding to inquiries from the actual times they pick up and de- the local precinct offices. Nothing substan- liver such materials. tial turns on whether these memoranda ar- (e) Violation by a shipper or carrier rive by midnight or by 10 a.m. of the next of the terms of this suspension is business day or whether their transmission grounds for administrative revocation takes a day or more longer to complete. The of the suspension as to such shipper or private carriage of these memoranda would not qualify under the test set out in para- carrier for a period of one year in a graph (b) of this section. proceeding instituted by the General Example (3). A health maintenance organi- Counsel, following a hearing by the Ju- zation (HMO) operating its own hospital, dicial Officer Department in accord- clinics, and medical laboratory daily sends ance with the rules of procedure set test samples and specimens from the HMO’s out in Part 959 of this chapter. The pe- hospital and clinics to its medical laboratory riod of the revocation may be reduced in a different location for immediate anal- or be extended for not to exceed one ad- ysis. In return, the HMO laboratory sends to ditional year by the Judicial Officer, the HMO’s hospital and clinics the laboratory reports for these samples and specimens depending on such mitigating or aggra- on the day the reports are completed. The re- vating factors as the extent of the ports are then promptly utilized by the hos- postal revenue lost because of the vio- pital and clinics as part of regular diagnostic lation and the presence or absence of procedures. The private carriage of these re- good faith error or of previous viola- ports would qualify under the loss-of-value tions. The failure of a shipper or car- test set out in paragraph (b) of this section. rier to cooperate with an authorized in- Example (4). The same HMO’s hospital and spection or audit conducted by the clinics send requisitions and invoices to the HMO’s central office as the need arises for Postal Inspection Service for the pur- the ordering of and payment for goods and pose of determining compliance with services, which are handled centrally. Every the terms of this suspension shall be other Friday, the central office sends to the deemed to create a presumption of a hospital and clinics reports and memoranda violation for the purpose of this para- on expenditures for personnel, supplies, utili- graph (e) and shall shift to the shipper ties, and other goods and services. Nothing or carrier the burden of establishing substantial turns on whether these materials the fact of compliance. Revocation of arrive the same day or by 10 a.m. of the next business day or whether their transmission this suspension as to a shipper or car- takes a day or more longer to complete. The rier shall in no way limit other actions private carriage of these materials would not as to such shipper or carrier to enforce qualify under the test set out in paragraph the Private Express Statutes by admin- (b) of this section.

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Example (5). On Sunday, Tuesday, and rials would not qualify under the test set out Thursday evenings, the central office of a re- in paragraph (b) of this section. gional grocery store chain sends out to its Example (9). An organization of real estate various stores in the area inventory bul- brokers in a community issues periodic bulletins prepared over the previous 24 hours letins containing information about prop- showing the current availability and prices erties which have been listed for sale by the of meat, produce, dairy products, constituent brokers. Each broker is entitled breadstuffs, frozen foods and similar items. to show the properties to prospective buyers. Early the following afternoon, each store In order to provide each broker with sub- must send these inventory bulletins back to stantially equal opportunity to secure a the central office with a notation of the buyer, it is necessary that the bulletins be store’s orders to assure that the central of- delivered on the same day and within the fice can ship sufficient supplies of such items shortest time span within that day. The bul- for sale by the store on its next business day. letins constitute the basic source of informa- The private carriage of these bulletins would tion for the brokers and delivery in the fore- qualify under the test set out in paragraph going manner is a key element in the func- (b) of this section. tioning of the brokers. The private carriage Example (6). On Sunday, Tuesday, and of the bulletins would therefore qualify Thursday evenings, the central office of a under the test set out in paragraph (b) of this different regional grocery chain sends out to section. its various stores in the area inventory bul- Example (10). The same organization dis- letins showing the current availability and tributes memoranda regarding speakers at prices of meat, produce, dairy products, real estate seminars, sales figures for a given breadstuffs, frozen foods and similar items. period, and other information of significance Early in the afternoon of the second day fol- and interest to real estate brokers but which lowing receipt of the bulletins, each store does not affect their competitive positions. A sends the bulletins back to the central office failure to make simultaneous or near simul- so that supplies of such items may be taneous delivery to the brokers, or a failure shipped to the store four days later. Nothing to make delivery within a specified period of substantial turns on whether these bulletins time, has no material bearing upon the day- arrive within 12 hours or by noon of the next to-day operations of the brokers and private business day or whether their transmission carriage of these materials would not qualify takes a day or more longer to complete. The under the test set out in paragraph (b) of this private carriage of these materials would not section. qualify under the test set out in paragraph (b) of this section. [44 FR 61181, Oct. 24, 1979] Example (7). The headquarters office of a large bank each business day prepares and § 320.7 Suspension for advertisements sends to its branch offices lists showing cur- accompanying parcels or periodi- rent foreign exchange rates and similar in- cals. formation that must be updated and distrib- (a) The operation of 39 U.S.C. 601(a) uted to the branches on a daily basis in order (1) through (6) and § 310.2(b) (1) through for the bank to avoid the risk of serious fi- (6) of this chapter is suspended on all nancial loss. Within three hours of their receipt by each branch office, these lists are post routes for advertisements enclosed circulated and utilized by officials of the with merchandise in parcels or accom- branch office in conducting regular banking panying periodicals under the following procedures involving the use of such lists. circumstances: The private carriage of these lists would (1) The advertisements must not be qualify under the test set out in paragraph marked with the names or addresses of (b) of this section. the intended recipients. Example (8). The field office of an insurance (2) The advertisements must be inci- company daily sends the insurance applications it has taken in that day to the com- dental to the shipment of the merchan- pany’s central office. The applications are dise or the periodical. bound (i.e., constitute evidence of insurance) (i) An advertisement is incidental to for 30 days, but may be canceled by the com- the shipment of the accompanying pany. Few if any policies have been canceled merchandise or the periodical when the by the company within 48 hours of their re- merchandise or the periodical has been ceipt at the central office, though the com- ordered by or would otherwise be sent pany normally begins processing the applica- to the recipient even without the actions soon after their receipt. Nothing sub- companying advertisement. stantial turns on whether these bound applications arrive within 12 hours or by noon of (ii) Notwithstanding § 320.7(a)(2)(i), an the next business day or whether their trans- advertisement is not incidental to the mission takes a day or more longer to com- merchandise when the pertinent cir- plete. The private carriage of these mate- cumstances, such as the nominal value

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of the merchandise, its shipment on an Example (1). A number of promotional let- unsolicited basis, or its status as a ters originated by firm F in Los Angeles are sample, reasonably indicate that the carried by Carrier G to Europe for deposit in shipper’s primary purpose is the con- the mails of a foreign country. Some of the veyance of the advertisement itself and letters are addressed to persons in Europe, some to persons in the United States. The that the merchandise is merely an ad- suspension for international remailing does junct to the advertisement. not apply to the letters addressed to persons (b) An item is an advertisement if its in the United States. primary purpose is to cause or induce the purchase of goods or services from (c) Violation by a shipper or carrier the shipper or others. of the terms of this suspension is grounds for administrative revocation [45 FR 59874, Sept. 11, 1980] of the suspension as to such shipper or carrier for a period of one year in a § 320.8 Suspension for international proceeding instituted by the General remailing. Counsel in accordance with part 959 of (a) The operation of 39 U.S.C. 601(a)(1) this chapter. The failure of a shipper or through (6) and § 310.2(b)(1) through (6) carrier to cooperate with an inspection of this chapter is suspended on all post or audit authorized and conducted by routes to permit the uninterrupted car- the Postal Inspection Service for the riage of letters from a point within the purpose of determining compliance United States to a foreign country for with the terms of this suspension shall deposit in its domestic or international be deemed to create a presumption of a mails for delivery to an ultimate des- violation for the purpose of this para- tination outside the United States. graph (c) and shall shift to the shipper Example (1). The letters to overseas cus- or carrier the burden of establishing tomers of commercial firm A in Chicago are the fact of compliance. Revocation of carried by Carrier B to New York where they this suspension as to a shipper or car- are delivered to Carrier C for carriage to Eu- rier shall in no way limit other actions rope. Carrier C holds the letters in its dis- as to such shipper or carrier to enforce tribution center overnight, then sorts them the Private Express Statutes by admin- by country of destination and merges them istrative proceedings for collection of with letters of other firms to those countries before starting the carriage to Europe in the postage (see § 310.5) or by civil or crimi- morning. The carriage of firm A’s letters is nal proceedings. not interrupted. The suspension for inter- [51 FR 29638, Aug. 20, 1986] national remailing applies to the carriage by Carrier B and by Carrier C. Example (2). The bills addressed to foreign § 320.9 Revocation or amendment of customers of the Chicago branch office of suspensions. commercial firm D are carried by Carrier E These suspensions may be revoked or to New York where they are delivered to the amended in accordance with § 310.7. No accounting department of firm D’s home of- revocation of the suspension provided fice. The accounting department uses the in- in § 320.2 will curtail operations of par- formation in the bills to prepare its reports of accounts receivable. The bills are then re- ticular carriers existing at the time of turned to Carrier E which carries them di- the revocation to a level of operations rectly to Europe where they are entered into (in dollar or volume terms, whichever the mails of a foreign country. The carriage is larger) lower than that antedating of the bills from Chicago to Europe is inter- the revocation in a particular market rupted in New York by the delivery to firm served prior to the revocation. Should D’s home office. The suspension for international remailing does not apply to the car- the suspension referred to in § 320.2 be riage from Chicago to New York. It does revoked, carriers, as a condition to apply to the subsequent carriage from New continuing operations under this sec- York to Europe. tion, will be required to provide reasonably complete and accurate data to (b) This suspension shall not permit support estimates of past operating the shipment or carriage of a letter or levels in particular markets. letters out of the mails to any foreign country for subsequent delivery to an [44 FR 52835, Sept. 11, 1979. Redesignated at address within the United States. 44 FR 61181, Oct. 24, 1979]

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PART 447—RULES OF CONDUCT ployees are referred to the Standards of FOR POSTAL EMPLOYEES Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635, and Subpart A—Applicability and Definitions Postal Service regulations supplemental thereto, 5 CFR part 7001. Sec. 447.11 Applicability. § 447.12 Definitions. 447.12 Definitions. The following definitions apply for Subpart B—Employee Conduct purposes of this part. (a) Postal Service. The United States 447.21 Prohibited conduct. Postal Service as established by 39 Subpart C—Ethical Conduct Advisory U.S.C. 201. Services and Post-Employment Activities (b) Employee. An individual appointed to a position, temporary or permanent, 447.31 Advisory service. within the Postal Service, or hired as 447.32 Post-employment activities. an executive under an employment Subpart D—Political Activities contract, including a substitute or a special employee as defined by 18 447.41 General. U.S.C. 202(a). The term ‘‘employee’’ does 447.42 Additional prohibited political activi- not include the Governors of the Postal ties. Service. 447.43 Investigation and enforcement. Subpart E—Participation in Community Subpart B—Employee Conduct Affairs § 447.21 Prohibited conduct. 447.51 General. 447.52 Holding of State or local office by (a) An employee must not engage, ei- Postal Service employees. ther on a paid or unpaid basis, in teaching, lecturing, or writing for the Subpart F—Bribery, Undue Influence, or purpose of the special preparation of a Coercion person or class of persons for an exam- 447.61 General. ination of the Office of Personnel Man- agement or Board of Examiners for the AUTHORITY: 39 U.S.C. 401. Foreign Service, or for appointment in SOURCE: 39 FR 1990, Jan. 16, 1974, unless the U.S. Postal Service, when these ac- otherwise noted. tivities are dependent on information obtained as a result of his or her em- Subpart A—Applicability and ployment with the Postal Service, ex- Definitions cept when that information has been made available to the general public, SOURCE: 60 FR 47243, Sept. 11, 1995, unless or will be made available on request, or otherwise noted. when the Postmaster General gives written authorization that the use of § 447.11 Applicability. nonpublic information is in the public This part contains rules of conduct interest. for the employees of the Postal Serv- (b) No employee shall take sick leave ice. Employees are required to comply to enable himself to engage in outside with the regulations in this part, and work. violations of the regulations may be (c) No employee while acting in his cause for disciplinary action. The regu- official capacity shall directly or indi- lations in this part are in addition to rectly authorize, permit, or participate other rules of conduct provided by ap- in any action, event or course of con- plicable statutes, regulations, or Post- duct which subjects any person to dis- al Service handbooks and manuals. For crimination, or results in any person applicable rules of ethical conduct, em- being discriminated against, on the

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basis of race, color, religion, sex, na- Subpart C—Ethical Conduct Advi- tional origin, or age. sory Services and Post-Em- (d) No employee shall engage in ployment Activities criminal, dishonest, notoriously dis- graceful or immoral conduct, or other § 447.31 Advisory service. conduct prejudicial to the Postal Serv- (a) The Ethical Conduct Officer is re- ice. Conviction of a violation of any sponsible for the administration of the criminal statute may be grounds for ethics program of the Postal Service. disciplinary action by the Postal Serv- In the exercise of that responsibility, ice in addition to any other penalty the Ethical Conduct Officer shall co- imposed by or pursuant to statute. ordinate the advisory service provided (e) No employee shall habitually use by this section, assure that authori- intoxicating beverages to excess. No tative interpretations of the Standards employee shall drink beer, wine, or of Ethical Conduct for Employees of other intoxicating beverages while on the Executive Branch (Standards) and duty. No employee shall begin work or Supplemental Postal Service Regula- return to duty while intoxicated. No tions (Supplemental Regulations) are available to the Associate Ethical Con- employee shall drink intoxicating bev- duct Officers, and render final rulings erages in a public place while in union behalf of the Postal Service in ap- form. Unless the Postmaster General peals by employees from rulings under specifically authorizes an exception (as the Standards and Supplemental Regu- in the case, for example, of an official lations made by an agency designee. reception) no employee shall have or The Ethical Conduct Officer shall pro- bring any container of beer, wine, or vide advice and guidance for the Post- other intoxicating beverage on prem- master General and all Associate Eth- ises occupied by a postal facility, ical Conduct Officers concerning ques- whether or not the container has been tions arising under the Standards and opened. Supplemental Regulations. The Ethical (f) Illegal use of drugs may be Conduct Officer may delegate to an As- grounds for removal from the Postal sistant Ethical Conduct Officer author- Service. ity to perform any duty or function (g) No employee while on property vested in him or her by this Section. owned or leased by the Postal Service The General Counsel is the Ethical Conduct Officer of the Postal Service or the United States or while on duty, and the Designated Agency Ethics Offi- shall participate in any gambling ac- cial for purposes of the Ethics in Gov- tivity, including the operation of a ernment Act, as amended, and imple- gambling device, in conducting or act- menting regulations of the Office of ing as an agent for a lottery or pool, in Government Ethics, including 5 CFR conducting a game for money or prop- part 2638. erty, or in selling or purchasing a num- (b) The Deputy Postmaster General bers slip or ticket. is the Associate Ethical Conduct Offi- NOTE: Paragraph (g) of this section does cer for the Office of the Postmaster not prohibit participation in activities speci- General and the Office of the Deputy fied herein if participation is necessitated by Postmaster General. The Chief Oper- an employee’s law enforcement duties, or if ating Officer, Senior Vice Presidents, participation is in accordance with section 7 Vice Presidents, and such other per- of Executive Order No. 12353, of March 23, sons as the Ethical Conduct Officer 1982, relating to agency-approved solicita- may designate are Associate Ethical tions. Conduct Officers for their respective [39 FR 1990, Jan. 16, 1974; 39 FR 3677, Jan. 28, organizational elements. Each Asso- 1974, as amended at 48 FR 48231, Oct. 18, 1983. ciate Ethical Conduct Officer shall des- Redesignated and amended at 60 FR 47244, ignate a suitable employee to coordi- Sept. 11, 1995; 72 FR 49195, Aug. 28, 2007] nate the ethics program within his or her organization and to act as liaison with the Ethical Conduct Officer. Each Associate may designate other suitable employees to assist or act for him or

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her and shall ensure that there is an the restrictions imposed under 18 adequate number of Qualified Ethics U.S.C. 207 in effect prior to that date, Trainers to comply with the require- while all other employees are subject ments of the annual ethics training to the restrictions imposed under 18 program. U.S.C. 207 as amended. (c) The Ethical Conduct Officer and, (b) The Office of Government Ethics with his or her approval, Associate has issued regulations, contained in 5 Ethical Conduct Officers, may delegate CFR part 2637, that implement 18 to additional persons or classes of per- U.S.C. 207 as in effect prior to January sons the authority to make determina- 1, 1991. Employees who terminated tions, to give approval, or to take their employment with the Postal other action in accordance with the Service prior to January 1, 1991, may Standards of Ethical Conduct, as is refer to 5 CFR part 2637 for guidance contemplated by 5 CFR 2635.102(b), de- concerning applicable post-employ- fining ‘‘agency designee.’’ ment restrictions, and further guidance (d) An employee may obtain advice may be obtained in accordance with and guidance on questions of conflicts § 447.31 of this part. of interest from the Ethical Conduct Officer or the Associate Ethical Con- (c) Employees who terminate their duct Officer having appropriate juris- postal employment on or after January diction. In order to avoid undue inter- 1, 1991, are subject to 18 U.S.C. 207 as ference with established grievance and amended. Guidance concerning post- disciplinary procedures, advisory serv- employment restrictions applicable to ice under this subpart will not nor- such employees may be obtained in ac- mally be available in an instance in cordance with § 447.31 of this part. which a grievance is pending or dis- [60 FR 47244, Sept. 11, 1995] ciplinary action has been initiated. (e) An employee may request any ruling provided for by the Standards and Subpart D—Political Activities Supplemental Regulations by submit- § 447.41 General. ting a request in writing to the Senior Counsel, Ethics, or, in the field, to the (a) Postal Service employees, except Chief Field Counsel or Deputy Chief those mentioned in paragraph (b) of Field Counsel, General Law. this section, are subject, at all times to (f) An employee may appeal to the restrictions on their participation in Ethical Conduct Officer from a ruling political activity (5 U.S.C. subchapter made by an agency designee concerning III of chapter 73, and 18 U.S.C. 602, 603, matters covered by the Standards and and 607), and to the regulations issued Supplemental Regulations within 30 by the Office of Personnel Management days from the date of the ruling. The relating thereto. appeal must be in writing and must (b) Those Postal Service employees contain a full statement of the rel- who are employed on an irregular or evant facts. It should be addressed to occasional basis; e.g., experts and con- the Ethical Conduct Officer, U.S. Post- sultants, substitute rural carriers, oth- al Service, Washington, DC 20260, and a ers on a per diem basis, and without copy thereof should be sent to the offi- compensation or when actually em- cial whose ruling is being appealed. ployed employees, are subject to the [60 FR 47244, Sept. 11, 1995] restrictions mentioned in paragraph (a) of this section only while in an active § 447.32 Post-employment activities. duty status and only for the entire 24 (a) Restrictions on the post-employ- hours of any day of actual employment activities of persons who have ment. Notwithstanding this paragraph, been employed by the Postal Service full-time employees in a leave status are imposed by 18 U.S.C. 207. The Eth- and part-time employees are fully sub- ics Reform Act of 1989 includes amend- ject to the restrictions of paragraph (a) ments to 18 U.S.C. 207, which became of this section. effective January 1, 1991. Employees [39 FR 1990, Jan. 16, 1974, as amended at 48 who terminated their employment FR 48231, Oct. 18, 1983. Redesignated at 60 FR prior to January 1, 1991, are subject to 47245, Sept. 11, 1995]

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§ 447.42 Additional prohibited political § 447.52 Holding of State or local office activities. by Postal Service employees. (a) In addition to the restrictions on (a) An employee may seek, accept, or political activities mentioned in hold a nonpartisan State or local office § 447.51, an employee may not: subject to the provisions of this Code (1) Display a political picture or and in particular this section. A ‘‘non- sticker on property owned or leased by partisan’’ office is one filled by a ‘‘non- the Postal Service. He is not forbidden partisan election’’, which is an election by this paragraph, however, from dis- at which none of the candidates are to playing a picture, including a person- be nominated or elected as rep- ally autographed picture of a political resenting a political party any of figure in his office or place of work if it whose candidates for presidential elec- tor received votes in the last preceding has no language in the nature of polit- election at which presidential electors ical campaigning; were selected. (2) Wear a political badge or button (b) An employee who wishes to seek, while in uniform or while on duty when accept, or hold a nonpartisan State or that duty requires him to deal with the local office is responsible for public or be in the view of the public; ascertaining: (3) Display a political picture or (1) Whether the office is ‘‘non- sticker on his private vehicle while partisan’’ within the definition in that vehicle is being used for official § 447.62(a). postal purposes. (2) Whether State or local law per- [39 FR 1990, Jan. 16, 1974. Redesignated at 60 mits a Postal Service employee to FR 47245, Sept. 11, 1995] seek, accept, or hold the particular office. § 447.43 Investigation and enforce- (3) Whether the duties of the office ment. would result in a conflict with his The Office of the Special Counsel and Postal Service employment. the Merit Systems Protection Board (4) Whether the discharge of the du- investigate and adjudicate allegations ties of the office would interfere with of political activity in violation of the the performance by the particular em- regulations of the Office of Personnel ployee of his Postal Service duties in Management by Postal Service em- an acceptable manner or would interfere with the performance by other ployees. For jurisdiction in such a case, Postal Service employees of their re- see 5 CFR 734.102 and part 1201. spective duties in an acceptable man- [60 FR 47245, Sept. 11, 1995] ner. (c) An employee is encouraged to Subpart E—Participation in seek advice from his Associate Ethical Community Affairs Conduct Counselor prior to taking any action to seek, accept, or hold a State § 447.51 General. or local office. If, after the employee has entered upon the discharge of the An employee is permitted to partici- duties of this non-postal office, his pate in community affairs to the ex- non-postal duties interfere with the tent consistent with the proper per- proper discharge of postal duties, ei- formance of his postal duties and with ther by him or by other postal employ- applicable laws and regulations. Noth- ees, the employee holding the non-posting in this section shall prevent an em- al office shall be advised by his supe- ployee from serving as an official of a rior to eliminate the interference, ei- religious or fraternal organization or of ther by resignation from the non-post- a civil nonpolitical organization which al office, or in such other manner as is is supported by dues or contributions appropriate under the circumstances. If from its own members. the employee fails, refuses, or neglects to comply with the foregoing advice [39 FR 1990, Jan. 16, 1974. Redesignated at 60 and the interference continues, he will FR 47245, Sept. 11, 1995] be subject to disciplinary proceedings.

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(d) Employees, other than post- 20260. The report shall be sent in a masters or acting postmasters in a sal- sealed envelope clearly marked ‘‘Lim- ary level of EAS–25 or higher, may be ited Official Use—To Be Opened by Ad- granted permission to campaign for a dressee Only’’. full-time State or local nonpartisan of- [39 FR 1990, Jan. 16, 1974. Redesignated at 60 fice while on annual leave or on au- FR 47245, Sept. 11, 1995] thorized leave without pay during the campaign when: (1) The criteria in paragraphs (b) (1) PART 491—GARNISHMENT OF SAL- and (2) of this section are met, and ARIES OF EMPLOYEES OF THE (2) The Vice President, Area Oper- POSTAL SERVICE AND THE POST- ations, determines that the employee’s AL RATE COMMISSION postal responsibilities are being conducted in a satisfactory manner and Sec. that the absence of the employee dur- 491.1 Authorized Agent to receive service. ing the campaign period will not dis- 491.2 Manner of service. 491.3 Sufficient legal form. rupt the operation of the facility where 491.4 Identification of employees. he or she is employed. 491.5 Costs. 491.6 Response to process. NOTE: Requests shall be submitted through 491.7 Release of information. the postmaster or other installation head to 491.8 Execution of process. the Vice President, Area Operations. If the 491.9 Restrictions on garnishment. employee is elected to and takes such a full- time office, he or she may either be sepa- AUTHORITY: 5 U.S.C. 5520a; 39 U.S.C. 401; rated from the Postal Service or granted E.O.12897, 59 FR 5517, 3 CFR, 1994 Comp., p. leave without pay. 858. (e) A postmaster or acting post- SOURCE: 63 FR 67403, Dec. 7, 1998, unless master in salary level EAS–25 or higher otherwise noted. shall not be authorized to take annual leave or leave without pay for the pur- § 491.1 Authorized Agent to receive service. pose of campaigning for a full-time State or local nonpartisan office. Notwithstanding the designation, in § 2.2 of this chapter, of the General [39 FR 1990, Jan. 16, 1974, as amended at 48 Counsel as agent for the receipt of FR 48231, Oct. 18, 1983. Redesignated and legal process against the Postal Serv- amended at 60 FR 47245, Sept. 11, 1995] ice, the sole agent for service of garnishment process directed to the pay of Subpart F—Bribery, Undue Postal Service employees and employ- Influence, or Coercion ees of the Postal Rate Commission (‘‘employees’’) is the Manager, Payroll § 447.61 General. Processing Branch, 2825 Lone Oak (a) An employee shall report imme- Parkway, Eagan, MN 55121–9650 (‘‘Au- diately to the General Counsel, U.S. thorized Agent’’). The Authorized Postal Service, Washington, DC 20260: Agent shall have sole authority to re- (1) Any instance in which a person ei- ceive service of legal process in the na- ther within or outside the Postal Serv- ture of garnishment (hereinafter some- ice uses or attempts to use a bribe, times referred to as ‘‘process’’) arising undue influence, or coercion to induce under the law of any state, territory, or attempt to induce the employee to or possession, or the order of a court of act or neglect to act in regard to his of- competent jurisdiction of any state, ficial responsibilities; and territory, or possession (including any (2) Any information that causes him order for child support and alimony or to believe that there has been a viola- bankruptcy). The Authorized Agent tion of a Federal criminal statute or may not receive or transmit service of any law or regulation directly or indi- process in a private legal matter on be- rectly related to the responsibilities of half of an employee. No process shall the Postal Service. A copy of a report be effectively served until it is received made under this paragraph shall also by the Authorized Agent or his des- be sent by the employee to the Chief ignee. No other employee shall have Postal Inspector, Washington, DC the authority to accept service of such

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process. Service of process in con- ment; that it is issued by a court of formity with Rule 4(i) of the Federal competent jurisdiction or an author- Rules of Civil Procedure (28 U.S.C. Ap- ized official pursuant to an order of pendix) is not waived for any suit or such a court or pursuant to federal, action wherein the Postal Service, its state or local law, evidenced by a sig- officers, or employees are parties. Any nature of the issuing person; and that Order, issued in bankruptcy, for the it contains the name of the garnished withholding of sums from pay due an party, with his or her social security employee and which is directed to the number, orders the employing agency Postal Service for handling outside the to withhold from pay a specific amount voluntary allotment procedure, is legal of money, specifically describes the process subject to the provisions of judgment of debt or administrative ac- these regulations. tion complete with statutory citation and contains specific advice as to § 491.2 Manner of service. where to send the funds as they are pe- Service of process on the Authorized riodically withheld including the com- Agent or his designee may be made in plete Zip Code (Zip + 4). When there is person or by certified or registered a suggestion that the employee is mail, with return receipt requested, at under the jurisdiction of a bankruptcy the address of the Authorized Agent. proceeding, the creditor must provide Service may also be made on the Au- documentary evidence to prove that thorized Agent by means of any private his legal process is not in violation of delivery service pursuant to its author- the bankruptcy court’s jurisdiction be- ity for the private carriage of letters fore the creditor’s garnishment may be under an exception to the Private Ex- processed. Documents deficient in any press Statutes, 39 U.S.C. 601–606, proof these respects may be returned to vided that the private delivery organi- the issuing court or authorized official zation issues a receipt bearing the inscribed ‘‘Insufficient as to legal name and address of both the addressee form.’’ and sender, as well as the date of delivery and the signature of the receiving § 491.4 Identification of employees. agent. No garnishment is effectively Garnishments must be accompanied served until it is received by the Au- by sufficient information to permit thorized Agent or his designee regard- prompt identification of the employee less of the chosen mode of delivery. and the payments involved. Garnish- Process addressed to, delivered to, or in ment of an employee whose name and any manner given to any employee, social security number is similar to other than the Authorized Agent or his but not identical with the name and so- designee, may, at the sole discretion of cial security number on the garnish- the employee, be returned to the ment will not be processed. An exact issuing court marked ‘‘Not Effectively match of both name and social security Served.’’ A copy of or reference to these number is required in order to permit regulations may be included. Employ- processing; otherwise, the garnishment ees are not authorized to redirect or will be returned marked ‘‘Insufficient forward garnishment process to the identifying information.’’ Garnish- Authorized Agent. In the event that ments which are insufficient in regard the address of the Authorized Agent is to identifying information will not be changed, mail may be forwarded from held pending receipt of further infor- his last published address to his new of- mation and must be served again when ficial address until such time as these the proper information is obtained. regulations are amended to reflect the new address. § 491.5 Costs. The Postal Service’s administrative § 491.3 Sufficient legal form. costs in executing the garnishment ac- No document purporting to garnish tion shall be added to each garnish- employee wages shall be deemed suffi- ment and the costs recovered shall be cient unless it can be determined from retained as offsetting collections. The the face of the document that it is Postal Service reserves the right to re- legal process in the nature of garnish- determine the administrative cost of

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any garnishment if, in administering defective with respect to service, lack of any garnishment, extra costs beyond legal sufficiency, failure to properly identify those normally encountered are in- the employee, or other reason, do not require curred, and add the extra cost to each a response or an answer but if the Postal Service chooses to act in any way, such as to garnishment. The extra costs recovered return the document, that act shall be a suf- shall be retained as offsetting collec- ficient answer. tions. § 491.7 Release of information. § 491.6 Response to process. (a) No employee whose duties include (a) Within fifteen days after receipt responding to interrogatories to gar- of process that is sufficient for legal nishments shall release information in form and contains sufficient informa- response to a garnishment until it is tion to identify the employee, the Au- determined that sufficient informa- thorized Agent shall send written no- tion, as required in § 491.4, has been re- tice that garnishment process has been ceived in writing as part of the gar- served, together with a copy thereof, to nishment legal process. The Authorized the affected employee at his or her Agent may, at his or her sole discre- duty station or last known address. tion, accept or initiate telephone or The Authorized Agent shall respond, in telefax inquiries concerning garnish- writing, to the garnishment or inter- ments. No other employee may release rogatories within thirty days of receipt any information about employees ex- of process. The Authorized Agent may cept in conformity with the Privacy respond within a longer period of time Act of 1974, 5 U.S.C. 552a, and the regu- as may be prescribed by applicable lations in 39 CFR Part 266, ‘‘Privacy of state Law. Neither the Authorized Information.’’ Agent nor any employee shall be re- (b) The Authorized Agent’s response quired to respond in person to any gar- to legal process is sufficient if it con- nishment served according to the pro- tains only that information not other- visions of 5 U.S.C. 5520a and the regula- wise protected from release by any fed- tions in this section. A sufficient re- eral statute including the Privacy Act. sponse to legal process shall consist of Neither the Postal Service nor the any action of the Postal Service con- Postal Rate Commission shall be re- sistent with these regulations. The acquired to provide formal answers to in- tion shall be considered to be given terrogatories received prior to the re- under penalty of perjury and shall con- ceipt of legal process. Employment stitute a legally sufficient answer to verification may be obtained by access- any garnishment. The Postal Service ing the Postal Service’s employment may, in its sole discretion, answer or verification system by dialing 1–(800) otherwise respond to documents pur- 276–9850. porting to be legal process which are insufficient as to the manner of serv- § 491.8 Execution of process. ice, insufficient as to the identification (a) All legal process in the nature of of the employee, insufficient as to legal garnishment shall be date and time form or insufficient for any other rea- stamped by the Authorized Agent when son. received for the purpose of determining (b) The requirements of paragraph (a) the order of receipt of process which is of this section are illustrated by the sufficient as to legal form and contains following example: sufficient information for identifica- Example: Each periodic check with the action of the employee, the Authorized companying Financial Institution State- Agent’s date and time stamp shall be ment shall be considered to be a legally suf- conclusive evidence. Child support and ficient answer. Where legal process has been alimony garnishments will be accorded processed but no money was deducted, (for priority over commercial garnishments the reason of insufficient pay, prior garnish- under 5 U.S.C. 5520a as provided in 5 ment in force, etc.) the mailing label or U.S.C. 5520a(h)(2). Garnishments shall other written response shall be a sufficient answer. Where the Postal Service sends a be executed provided that the pay cycle check or mailing label, no further action will is open for input or, if closed, will be be required (such as a cumulative report or held until the next cycle. In no event notarized statement.) Documents which are shall the Postal Service be required to

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vary its normal pay or disbursement total including the additional money cycles in order to comply with legal owed, as determined from his calcula- process of any kind. Garnishments tion of the variable amounts. The at- shall be recalculated, if required, to fit torney is deemed to certify on his pro- within the normal postal pay cycles. fessional responsibility that the cal- The Postal Service shall not be re- culations are correct and will indem- quired to withhold pay and hold the nify the employee directly for any er- funds in escrow. The Postal Service, in rors. All garnishments of periodic pay its sole discretion, may process more may be effectuated in accordance with than one garnishment at a time within the bi-weekly pay schedule. The Postal the restrictions on garnishments in Service need not vary its pay and dis- Section 491.9 of these regulations. The bursement cycles to accommodate Postal Service may, in its sole discre- withholding on any other cycle. tion, accept and hold for processing (c) Neither the Postal Service, the garnishments received after the gar- Postal Rate Commission nor any dis- nishment currently in force. bursing officer shall be liable for any (b) The Postal Service will only ac- payment made from moneys due from, cept and effectuate legal process for a or payable by the Postal Service or the person who is currently employed. Postal Rate Commission to any indi- Upon cessation of employment, process vidual pursuant to legal process reg- relating to that individual will be ter- ular on its face. minated and not retained. The Postal Service shall not be required to estab- (d) The Postal Service, the Postal lish an escrow account to comply with Rate Commission, any disbursing offi- legal process even if the applicable law cer or any other employee shall not be of the jurisdiction requires private em- liable to pay money damages for fail- ployers to do so. Legal process must ure to comply with legal process. state on its face that the Postal Serv- ice withhold up to a specific total § 491.9 Restrictions on garnishment. amount of money, the Postal Service Garnishments under this section will not calculate interest, charges, or shall be subject to the restrictions in 15 any variable in processing a garnish- U.S.C. 1671–1677, including limits on the ment. The Postal Service may continue amounts which can be withheld from processing a garnishment if the gar- an employee’s pay and the priority of nishing attorney provides the adjusted garnishments.

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PART 501—AUTHORIZATION TO to postage meters and PC Postage sys- MANUFACTURE AND DISTRIBUTE tems. POSTAGE EVIDENCING SYSTEMS (b) A postage meter is a Postal Serv- ice-approved Postage Evidencing Sys- Sec. tem that uses a device to account for 501.1 Definitions. postage purchased and printed. The 501.2 Postage Evidencing System provider term meter as used in this part refers to authorization. a postage meter. 501.3 Postage Evidencing System provider (c) PC Postage products are Postal qualification. 501.4 Changes in ownership or control, Service-approved Postage Evidencing bankruptcy, or insolvency. Systems that use a personal computer 501.5 Burden of proof standard. as an integral part of the system. PC 501.6 Suspension and revocation of author- Postage products may use the Internet ization. to download postage to a mailer’s com- 501.7 Postage Evidencing System require- puter from which the postage indicia ments. 501.8 Postage Evidencing System test and may then be printed. approval. (d) A provider is a person or entity 501.9 Demonstration or test Postage Evi- authorized under this section to manu- dencing Systems. facture and/or distribute Postage Evi- 501.10 Postage Evidencing System modifica- dencing Systems to customers. tions. 501.11 Reporting Postage Evidencing Sys- (e) A manufacturer of postage meters tem security weaknesses. produces postage meters. 501.12 Administrative sanctions. (f) A distributor of postage meters 501.13 False representations of Postal Serv- may be a manufacturer who leases ice actions. postage meters directly to end-user 501.14 Postage Evidencing System inven- customers or may be an independent tory control processes. 501.15 Computerized Meter Resetting Sys- entity who leases postage meters to tem. end-user customers on behalf of the 501.16 PC postage payment methodology. manufacturer. 501.17 Decertified Postage Evidencing Sys- (g) A customer is a person or entity tems. authorized by the Postal Service to use 501.18 Customer information and authoriza- a Postage Evidencing System in action. 501.19 Intellectual property. cordance with Mailing Standards of the United States Postal Service, Domestic AUTHORITY: 5 U.S.C. 552(a); 39 U.S.C. 101, Mail Manual (DMM) 604 Postage Pay- 401, 403, 404, 410, 2601, 2605; Inspector General Act of 1978, as amended (Pub. L. 95–452, as ment Methods, 4.0 Postage Meters and amended); 5 U.S.C. App. 3. PC Postage Products (Postage Evidenc- ing Systems). SOURCE: 71 FR 65733, Nov. 9, 2006, unless otherwise noted. § 501.2 Postage Evidencing System § 501.1 Definitions. provider authorization. (a) Postage Evidencing Systems regu- (a) The Postal Service considers lated by part 501 produce evidence of Postage Evidencing Systems and their prepayment of postage by any method respective infrastructure to be essen- other than postage stamps and permit tial to the exercise of its specific pow- imprints. A Postage Evidencing Sys- ers to prescribe postage and provide tem is a device or system of compo- evidence of payment of postage under nents that a customer uses to generate 39 U.S.C. 404(a)(2) and (4). and print evidence that postage re- (b) Due to the potential for adverse quired for mailing has been paid. Post- impact upon Postal Service revenue, age Evidencing Systems print indicia, the following activities may not be en- such as meter imprints or information- gaged in by any person or entity with- based indicia to indicate postage pay- out prior, written approval of the Post- ment. They include but are not limited al Service:

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(1) Producing or distributing any agreed to by the Postal Service and the Postage Evidencing System that gen- applicant. The applicant is approved in erates U.S. postage. writing to engage in the function(s) for (2) Repairing, distributing, refur- which authorization was sought and bishing, remanufacturing, modifying, approved. or destroying any component of a Post- (f) To the extent that any provider age Evidencing System that accounts manufactures and/or distributes any for or authorizes the printing of U.S. PC Postage product through any au- postage. thorized Postage Evidencing System, (3) Owning or operating an infra- such provider must adhere to the re- structure that maintains operating quirements of these regulations. data for the production of U.S. postage, (g) The Postal Service office respon- or accounts for U.S. postage purchased sible for administration of this Part 501 for distribution through a Postage Evi- is the office of Postage Technology dencing System. Management (PTM) or successor orga- (4) Owning or operating an infra- nization. All submissions to the Postal structure that maintains operating Service required or invited by this Part data that is used to facilitate registra- 501 are to be made to this office in per- tion with the Postal Service of cus- son or via mail to 475 L’Enfant Plaza tomers of a Postage Evidencing Sys- SW, North Building Suite 4200, Wash- tem. ington, DC 20260–4200. Information up- (c) Any person or entity seeking au- dates may be found on the Postal Serv- thorization to perform any activity de- ice Web site at http://www.usps.com/ scribed in paragraph (b) of this section, postagesolutions/flash.htm. or to materially modify any activity previously approved by the Postal § 501.3 Postage Evidencing System Service, must submit a request to the provider qualification. Postal Service in person or in writing. Any person or entity seeking author- Decisions of the Postal Service upon ization to manufacture and/or dis- such requests are effective only if in tribute Postage Evidencing Systems writing (including electronic mail). must: (d) Approval shall be based upon sat- (a) Satisfy the Postal Service of its isfactory evidence of the applicant’s in- integrity and financial responsibility. tegrity and financial responsibility, (b) Obtain Postal Service approval commitment to the security of the under this part of at least one Postage Postage Evidencing System, and a de- Evidencing System satisfying the re- termination that disclosure to the ap- quirements of Postal Service regula- plicant of Postal Service customer, fi- tions. nancial, or other data of a commercial (c) As a condition of obtaining au- nature necessary to perform the func- thorization under this section, the tion for which approval is sought would Postage Evidencing System provider’s be appropriate and consistent with facilities used for the manufacture, dis- good business practices within the tribution, storage, resetting, or de- meaning of 39 U.S.C. 410(c)(2). The struction of postage meters and all fa- Postal Service may condition its ap- cilities housing infrastructure sup- proval upon the applicant’s agreement porting Postage Evidencing Systems to undertakings that would give the will be subject to unannounced inspec- Postal Service appropriate assurance of tion by representatives of the Postal the applicant’s ability to meet its obli- Service. If such facilities are outside gations under this section, including the continental United States, the pro- but not limited to the method and vider will be responsible for all reason- manner of performing certain finan- able and necessary travel-related costs cial, security, and servicing functions incurred by the Postal Service to con- and the need to maintain sufficient fi- duct the inspections. Travel-related nancial reserves to guarantee uninter- costs are determined in accordance rupted performance of not less than 3 with Postal Service Handbook F–15, months of operation. Travel and Relocation. At its discretion, (e) Qualification and approval may be the Postal Service may continue to based upon additional conditions fund routine inspections outside the

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continental United States as it has in of the system or is a competitor to the the past, provided the costs are not as- Postal Service. Any person or entity sociated with particular security issues seeking to acquire ownership or con- related to a provider’s Postage Evi- trol of a person or entity authorized dencing System or supporting infra- under § 501.2 must provide the Postal structure, or with the start-up or im- Service satisfactory evidence that upon plementation of a new plant or of a completion of the contemplated trans- new or substantially changed manufac- action, it will satisfy the conditions for turing process. approval stated in § 501.2. Early notifi- (1) When conducting an inspection cation of a proposed change in owner- outside the continental United States, ship or control will facilitate expedi- the Postal Service will make every ef- tious review of an application to ac- fort to combine the inspection with quire ownership or control under this other inspections in the same general section. geographic area in order to enable af- (b) Any person or entity authorized fected providers to share the costs. The Postal Service team conducting such under § 501.2 must promptly notify the inspections will be limited to the min- Postal Service when it has a reasonable imum number necessary to conduct the expectation that there may be a inspection. All air travel will be con- change in the status of its financial tracted for at the rates for official gov- condition either through bankruptcy, ernment business, when available, insolvency, assignment for the benefit under such rules respecting class of of creditors, or other similar financial travel as apply to those Postal Service action. Any person or entity author- representatives inspecting the facility ized under § 501.2 who experiences a at the time the travel occurs. change in the status of its financial (2) If political or other impediments condition may, at the discretion of the prevent the Postal Service from con- Postal Service, have its authorization ducting security evaluations of Post- under § 501.2 modified or terminated. age Evidencing System facilities in foreign countries, Postal Service approval § 501.5 Burden of proof standard. of the activities conducted in such fa- The burden of proof is on the Postal cilities may be suspended until such Service in administrative determina- time as satisfactory inspections may tions of suspension and revocation be conducted. under § 501.6 and administrative sanc- (d) Have, or establish, and keep under tions under § 501.12. Except as other- its active supervision and control ade- wise indicated in those sections, the quate facilities for the control, dis- standard of proof shall be the prepon- tribution, and maintenance of Postage derance-of-evidence standard. Evidencing Systems and their replacement or secure disposal or destruction § 501.6 Suspension and revocation of when necessary and appropriate. authorization. § 501.4 Changes in ownership or con- (a) The Postal Service may suspend trol, bankruptcy, or insolvency. and/or revoke authorization to manu- (a) Any person or entity authorized facture and/or distribute any or all of a under § 501.2 must promptly notify the provider’s approved Postage Evidenc- Postal Service when it has a reasonable ing System(s) if the provider engages expectation that there may be a in any unlawful scheme or enterprise, change in its ownership or control in- fails to comply with any provision in cluding changes in the ownership of an this Part 501, fails to implement in- affiliate which exercises control over structions issued in accordance with its Postage Evidencing System oper- any final decision issued by the Postal ations in the United States. A change Service within its authority over Post- of ownership or control within the age Evidencing Systems or if the Post- meaning of this section includes entry age Evidencing System or infrastruc- into a strategic alliance or other agree- ture of the provider is determined to ment whereby a third party either has constitute an unacceptable risk to access to data related to the security Postal Service revenues.

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(b) The decision to suspend or revoke (4) If, upon consideration of the de- pursuant to paragraph (a) of this sec- fense as provided in paragraph (d) of tion shall be based upon the nature and this section, the Postal Service deems circumstances of the violation (e.g. that the suspension is warranted, the whether the violation was willful, suspension shall remain in effect for up whether the provider voluntarily ad- to 90 days unless withdrawn by the mitted to the violation, or cooperated Postal Service, as provided in para- with the Postal Service, whether the graph (c)(5)(iii) of this section. provider implemented successful reme- (5) At the end of the ninety (90) day dial measures) and on the provider’s suspension, the Postal Service may: performance history. Before deter- (i) Extend the suspension in order to mining that a provider’s authorization allow more time for investigation or to to manufacture and/or distribute Post- allow the provider time to correct the age Evidencing Systems should be sus- problem. pended or revoked, the procedures in (ii) Make a determination to revoke paragraph (c) of this section shall be authorization to manufacture and/or followed. distribute a Postage Evidencing Sys- (c) Suspension or revocation proce- tem in part or in whole. dures: (iii) Withdraw the suspension based (1) Upon determination by the Postal on identification and implementation Service that a provider is in violation of a satisfactory solution to the prob- of provisions of this Part 501, or that lem. its Postal Evidencing System poses an (d) The provider may present the unreasonable risk to postal revenue, Postal Service with a written defense PTM, acting on behalf of the Postal to any suspension or revocation deter- Service shall issue a written notice of mination within thirty (30) calendar proposed suspension citing the specific days of receiving the written notice conditions or deficiencies for which (unless a shorter period is deemed nec- suspension of authorization to manu- essary). The defense must include all facture and/or distribute a specific supporting evidence and state with Postage Evidencing System or class of specificity the reasons why the order Postage Evidencing Systems may be should not be imposed. imposed. Except in cases of willful vio- (e) After receipt and consideration of lation, the provider shall be given an the defense, PTM shall advise the pro- opportunity to correct deficiencies and vider of its decision and the facts and achieve compliance with all require- reasons for it. The decision shall be ef- ments within a time limit cor- fective on receipt unless provided oth- responding to the potential revenue erwise. The decision shall also advise risk to postal revenue. the provider that it may be appealed (2) In cases of willful violation, or if within thirty (30) calendar days of re- the Postal Service determines that the ceipt (unless a shorter time frame is provider has failed to correct cited de- deemed necessary). If an appeal is not ficiencies within the specified time filed in a timely manner, the decision limit, PTM shall issue a written notice of PTM shall become a final decision of of suspension setting forth the facts the Postal Service. The appeal may be and reasons for the decision to suspend filed with the Chief Marketing Officer and the effective date if a written de- of the Postal Service and must include fense is not presented as provided in all supporting evidence and state with paragraph (d) of this section. specificity the reasons the provider be- (3) The notice shall also advise the lieves that the decision is erroneous. provider of its right to file a response The decision of the Chief Marketing Of- under paragraph (d) of this section. If a ficer shall constitute a final decision of written response is not presented in a the Postal Service. timely manner the suspension may go (f) An order or final decision under into effect. The suspension shall re- this section does not preclude any main in effect for ninety (90) calendar other criminal or civil statutory, com- days unless revoked or modified by mon law, or administrative remedy PTM. that is available by law to the Postal

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Service, the United States, or any quirements must be approved in writ- other person or entity. ing by the Postal Service. (c) The provider must ensure that § 501.7 Postage Evidencing System re- any matter printed by a postage evi- quirements. dencing system, whether within the (a) A Postage Evidencing System boundaries of the indicia or outside the submitted to the Postal Service for ap- clear zone as defined in DMM 604.4.0 proval must meet the requirements of and the Performance Criteria for Infor- the Performance Criteria for Informa- mation-Based Indicia and Security Ar- tion-Based Indicia and Security Archi- chitecture for Open IBI Postage Evi- tecture for Open IBI Postage Evidenc- dencing Systems or Performance Cri- ing Systems or Performance Criteria teria for Information-Based Indicia and for Information-Based Indicia and Se- Security Architecture for Closed IBI curity Architecture for Closed IBI Postage Metering Systems, is: Postage Metering Systems published (1) Consistent with the Postal Serv- by PTM. The current versions of the ice’s intent to maintain neutrality on Performance Criteria may be found on religious, social, political, legal, moral, the Postal Service Web site at http:// or other public issues; www.usps.com/postagesolutions/ (2) Is not obscene, deceptive, or de- programdoc.html or requests for copies famatory of any person, entity, or may be submitted via mail to the ad- group, and does not advocate unlawful dress in § 501.2(g). action; (b) The provider must affix to all me- (3) Does not emulate any form of ters a cautionary message providing valid postage, government, or other of- the meter user with basic reminders on ficial indicia, or payment of postage; leasing and meter movement. and (1) The cautionary message must be (4) Does not harm the public image, placed on all meters in a conspicuous reputation, or good will of the Postal and highly visible location. PROP- Service and is not otherwise deroga- ERTY OF [NAME OF PROVIDER] as tory or detrimental to the interests of well as the provider’s toll-free number the Postal Service. must be emphasized by capitalized bold (d) Providers must also ensure that type and preferably printed in red. The customers acknowledge, agree, and minimum width of the message should warrant in writing that: be 3.25 inches, and the minimum height (1) The customer bears full responsi- should be 1.75 inches. The message bility and liability for obtaining au- should read as follows: thorization to reproduce and otherwise use the matter as proposed (including, RENTED POSTAGE METER-NOT FOR without limitation, any trademarks, SALE slogans, likenesses or copyrighted ma- PROPERTY OF [NAME OF PROVIDER] (800) ###–#### terial contained in the image); (2) The customer in fact has the legal Use of this meter is permissible only under U.S. Postal Service authorization. Call authority to reproduce and otherwise [Name of Provider] at (800) ###–#### to relo- use the matter as proposed; and cate/return this meter. (3) The customer understands that WARNING! METER TAMPERING IS A FED- images or other matter is not provided, ERAL OFFENSE. approved, or endorsed in any way by IF YOU SUSPECT METER TAMPERING, the Postal Service. CALL POSTAL INSPECTORS AT (800) 372– 8347 § 501.8 Postage Evidencing System test REWARD UP TO $50,000 for information and approval. leading to the conviction of any person who (a) To receive Postal Service ap- misuses postage meters resulting in the proval, each Postage Evidencing Sys- Postal Service not receiving correct postage tem must be submitted by the provider payments. and evaluated by the Postal Service in (2) Exceptions to the formatting of accordance with the Postage Evidenc- the required message are determined ing Product Submission Procedures on a case-by-case basis. Any deviation published by PTM. The current version from standardized meter message re- of the Product Submission Procedures

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may be found on the Postal Service sion of a customer under any cir- Web site at http://www.usps.com/ cumstance. postagesolutions/programdoc.html or re- (b) All indicia printed by a dem- quests for copies may be submitted via onstration or test Postage Evidencing mail to the address in 501.2(g). These System must be collected and de- procedures apply to all proposed Post- stroyed daily. age Evidencing Systems regardless of whether the provider is currently au- § 501.10 Postage Evidencing System thorized by the Postal Service to dis- modifications. tribute Postage Evidencing Systems. (a) An authorized provider must re- All testing required by the Postal Serv- ceive prior written approval from the ice will be an expense of the provider. manager, PTM, of any and all changes (b) As provided in § 501.11, the pro- made to a previously approved Postage vider has a duty to report security Evidencing System. The notification weaknesses to the Postal Service to en- must include a summary of all changes sure that each approved Postage Evi- made and the provider’s assessment as dencing System protects the Postal to the impact of those changes on the Service against loss of revenue at all security of the Postage Evidencing times. A grant of approval of a system System and postage funds. Upon re- does not constitute an irrevocable de- ceipt of the notification, PTM will re- termination that the Postal Service is view the summary of changes and satisfied with the revenue-protection make a decision regarding the need for capabilities of the system. After ap- the following: proval is granted to manufacture and/ (1) Additional documentation. or distribute a Postage Evidencing Sys- (2) Level of test and evaluation re- tem, no change affecting its basic fea- quired. tures or safeguards may be made ex- (3) Necessity for evaluation by a lab- cept as authorized or ordered by the oratory accredited by the National In- Postal Service in writing. stitutes of Standards and Technology (NIST) under the National Voluntary § 501.9 Demonstration or test Postage Laboratory Accreditation Program Evidencing Systems. (NVLAP). (a) A demonstration or test postage (b) Upon receipt and review of addi- evidencing system is any system that tional documentation and/or test re- produces an image that replicates a sults, PTM will issue a written ac- postage indicium for which the Postal knowledgement and/or approval of the Service has not received payment for change to the provider. postage. The following procedures must be followed to implement controls over § 501.11 Reporting Postage Evidencing demonstration or test Postage Evi- System security weaknesses. dencing Systems: (a) For purposes of this section, pro- (1) A demonstration or test Postage vider refers to the Postage Evidencing Evidencing System may print only System provider authorized under specimen or test indicia. A specimen or § 501.2 and its foreign affiliates, if any, test indicia must clearly indicate that subsidiaries, assigns, dealers, inde- the indicia does not represent valid pendent dealers, employees, and parent postage. corporations. (2) A demonstration or test Postage (b) Each authorized provider of a Evidencing System must be recorded as Postage Evidencing System must no- such on internal provider inventory tify the Postal Service within twenty- records and must be tracked by model four (24) hours, upon discovery of the number, serial number, and physical following: location. (1) All findings or results of any test- (3) A demonstration or test Postage ing known to the provider concerning Evidencing System must remain under the security or revenue protection fea- the provider’s direct control. A dem- tures, capabilities, or failings of any onstration or test Postage Evidencing Postage Evidencing System sold, System may not be left in the posses- leased, or distributed by it that has

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been approved for sale, lease, or dis- ured from the date that the provider tribution by the Postal Service or any knew, or should have known, of a po- foreign postal administration; or has tential security weakness, including, been submitted for approval by the pro- but not limited to, administrative and vider to the Postal Service or other investigative costs and documented foreign postal administration(s). revenue losses that result from any (2) All potential security weaknesses Postage Evidencing System for which or methods of tampering with the Post- the provider failed to comply with any age Evidencing Systems that the pro- provision in § 501.11. The Postal Service vider distributes of which it knows or issues a written demand for reimburse- should know and the Postage Evidenc- ment of any and all such costs and ing System model subject to each such losses (net of any amount collected by method. Potential security weaknesses the Postal Service from the customers) include but are not limited to suspected equipment defects, suspected with interest. The demand shall set abuse by a customer or provider em- forth the facts and reasons on which it ployee, suspected security breaches of is based. the Computerized Meter Resetting Sys- (c) The provider may present the tem (CMRS) or databases housing con- Postal Service with a written defense fidential customer data relating to the to the proposed action within thirty use of Postage Evidencing Systems, oc- (30) calendar days of receipt. The de- currences outside normal performance, fense must include all supporting evi- or any repeatable deviation from nor- dence and state with specificity the mal Postage Evidencing System per- reasons for which the sanction should formance. not be imposed. (c) Within a time limit corresponding (d) After receipt and consideration of to the potential revenue risk to postal the defense, the Postal Service shall revenue as determined by the Postal advise the provider of the decision and Service, the provider must submit a the facts and reasons for it; the deci- written report to the Postal Service. sion shall be effective on receipt unless The report must include the cir- it provides otherwise. The decision cumstances, proposed investigative shall also advise the provider that it procedure, and the anticipated comple- may, within thirty (30) calendar days tion date of the investigation. The proof receiving written notice, appeal that vider must also provide periodic status reports to the Postal Service during determination to the Chief Marketing subsequent investigation and, on com- Officer of the Postal Service who shall pletion, must submit a summary of the issue a written decision upon the ap- investigative findings. peal which will constitute the final (d) The provider must establish and Postal Service decision. adhere to timely and efficient proce- (e) The imposition of an administra- dures for internal reporting of poten- tive sanction under this section does tial security weaknesses and shall pro- not preclude any other criminal or vide a copy of such internal reporting civil statutory, common law, or admin- procedures and instructions to the istrative remedy that is available by Postal Service for review. law to the Postal Service, the United (e) Failure to comply with this sec- States, or any other person or entity. tion may result in suspension of ap- (f) An authorized Postage Evidencing proval under § 501.6 or the imposition of System provider, who without just sanctions under § 501.12. cause fails to follow any Postal Service § 501.12 Administrative sanctions. approved procedures, perform adequately any of the Postal Service ap- (a) An authorized Postage Evidencing proved controls, or fails to obtain ap- System provider may be responsible to proval of a required process in § 501.14 the Postal Service for revenue losses in a timely fashion, is subject to an ad- caused by failure to comply with ministrative sanction under this provi- § 501.11. (b) The Postal Service shall deter- sion § 501.12. mine all costs and revenue losses meas-

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§ 501.13 False representations of Post- (2) Transportation and storage of me- al Service actions. ters—procedures that provide reason- Providers, their agents, and employ- able precautions to prevent use by un- ees must not intentionally misrepre- authorized individuals. Providers must sent to customers of the Postal Service ship all meters by Postal Service Reg- decisions, actions, or proposed actions istered Mail unless given written per- of the Postal Service respecting its reg- mission by the Postal Service to use ulation of Postage Evidencing Sys- another carrier. The provider must tems. The Postal Service reserves the demonstrate that the alternative deliv- right to suspend and/or revoke the au- ery carrier employs security proce- thorization to manufacture or dis- dures equivalent to those for Reg- tribute Postage Evidencing Systems istered Mail. throughout the United States or any (3) Postage meter examination/in- part thereof pursuant to § 501.6 when it spection procedures and schedule—The determines that the provider, its provider is required to perform postage agents, or employees failed to comply meter examinations or inspections with this section. based on an approved schedule. Failure to complete the meter examination or § 501.14 Postage Evidencing System in- inspections by the due date may result ventory control processes. in the Postal Service requiring the pro- (a) Each authorized provider of Post- vider to disable the meter’s resetting age Evidencing Systems must perma- capability. If necessary, the Postal nently hold title to all Postage Evi- Service shall notify the customer that dencing Systems which it manufac- the meter is to be removed from serv- tures or distributes except those pur- ice and the authorization to use a chased by the Postal Service or distrib- meter revoked, following the proce- uted outside the United States. dures for revocation specified by regu- (b) An authorized provider must lation. The Postal Service shall notify maintain sufficient facilities for and the provider to remove the meter from records of the distribution, control, the customer’s location. storage, maintenance, repair, replace- (4) Check out of service procedures ment, and destruction or disposal of all for a non-faulty Postage Evidencing Postage Evidencing Systems and their System when the system is to be re- components to enable accurate ac- moved from service for any reason. counting and location thereof through- (5) Postage meter repair process—any out the entire life cycle of each Post- physical or electronic access to the in- age Evidencing System. A complete ternal components of a postage meter, record shall entail a list by serial num- as well as any access to software or se- ber of all Postage Evidencing Systems curity parameters, must be conducted manufactured or distributed showing within an approved facility under the all movements of each system from the provider’s direct control and active su- time that it is produced until it is pervision. To prevent unauthorized use, scrapped, and the reading of the as- the provider or any third party acting cending register each time the system on its behalf must keep secure any is checked into or out of service. These equipment or other component that records must be available for inspec- can be used to open or access the inter- tion by Postal Service officials at any nal, electronic, or secure components time during business hours. of a meter. (c) To ensure adequate control over (6) Faulty meter handling proce- Postage Evidencing Systems, plans for dures, including those that are inoper- the following processes must be sub- able, mis-registering, have unreadable mitted for prior approval, in writing, registers, inaccurately reflect their to PTM: current status, show any evidence of (1) Check in to service procedures for possible tampering or abuse, and those all Postage Evidencing Systems—the for which there is any indication that procedures are to address the process the meter has some mechanical or elec- to be used for new Postage Evidencing trical malfunction of any critical secu- Systems as well as those previously rity component, such as any compo- leased to another customer. nent the improper operation of which

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could adversely affect Postal Service vised in advance of all aspects of the revenues, or of any memory compo- relationship, as they relate to the cus- nent, or that affects the accuracy of tody and control of Postage Evidencing the registers or the accuracy of the Systems, and must specifically author- value printed. ize in writing the proposed arrange- (7) Lost or stolen meter procedures— ment between the parties. the provider must promptly report to (1) Postal Service authorization of a the Postal Service the loss or theft of third party relationship to perform any meter or the recovery of any lost specific functions applies only to the or stolen meter. Such notification to functions stated in the written author- the Postal Service will be made by ization but may be amended to em- completing and filing a standardized brace additional functions. lost and stolen meter incident report (2) No third-party relationship shall within ten (10) calendar days of the compromise the security of the Post- provider’s determination of a meter age Evidencing System, or its compo- loss, theft, or recovery. nents, including, but not limited to, (8) Postage meter destruction, when the hardware, software, communica- required-the postage meter must be tions, and security components, or of rendered completely inoperable by the any security-related system with destruction process and associated which it interfaces, including, but not postage—printing dies and components limited to, the resetting system, re- must be destroyed. Manufacturers/dis- porting systems, and Postal Service tributors of meters must submit the support systems. The functions of the proposed destruction method; a sched- third party with respect to a Postage ule listing the postage meters to be de- Evidencing System, its components, stroyed, by serial number and model; and the systems with which it inter- and the proposed time and place of de- faces are subject to the same scrutiny struction to PTM for approval prior to as the equivalent functions of the pro- any meter destruction. Providers must vider. record and retain the serial numbers of the meters to be destroyed and provide (3) Any authorized third party must a list of such serial numbers in elec- keep adequate facilities for and records tronic form in accordance with Postal of Postage Evidencing Systems and Service requirements for meter ac- their components in accordance with counting and tracking systems. Pro- paragraph (b) of this section. All such viders must give sufficient advance no- facilities and records are subject to in- tice of the destruction to allow PTM to spection by Postal Service representa- schedule observation by its designated tives, insofar as they are used to dis- representative who shall verify that tribute, control, store, maintain, re- the destruction is performed in accord- pair, replace, destroy, or dispose of ance with a Postal Service—approved Postage Evidencing Systems. method or process. To the extent that (4) The provider must ensure that the Postal Service elects not to observe any party acting on its behalf in any of a particular destruction, the provider the functions described in paragraph must submit a certification of destruc- (b) of this section maintains adequate tion, including the serial number(s) to facilities, records, and procedures for the Postal Service within five (5) cal- the security of the Postage Evidencing endar days of destruction. These re- Systems. Deficiencies in the operations quirements for meter destruction apply of a third party relating to the custody to all postage meters, Postage Evidenc- and control of Postage Evidencing Sys- ing Systems, and postal security de- tems, unless corrected in a timely vices included as a component of a manner, can place at risk a provider’s Postage Evidencing System. approval to manufacture and/or dis- (d) If the provider uses a third party tribute Postage Evidencing Systems. to perform functions that may affect (5) The Postal Service reserves the Postage Evidencing System security, right to review all aspects of any third including, but not limited to repair, party relationship if it appears that maintenance, and disposal of Postage the relationship poses a threat to Post- Evidencing Systems, PTM must be ad- age Evidencing System security and

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may require the provider to take ap- (2) Electronic funds transfers (wire propriate corrective action. transfers). (3) Checks. § 501.15 Computerized Meter Resetting (g) Returned checks and ACH debits System. are the responsibility of the Postal (a) Description. The Computerized Service. Upon notice from the Postal Meter Resetting System (CMRS) per- Service’s designated bank, the provider mits customers to reset their postage will be required to immediately lock meters at their places of business. Au- the customer account to prevent a thorized providers, who operate CMRS meter reset until the Postal Service re- services, are known as resetting com- ceives payment for the returned check panies (RCs). or the provider is provided with valid (b) A customer is required to have ACH credit or wire information. funds available on deposit with the (h) Refunds. The Postal Service will Postal Service before resetting a Post- issue a refund in the amount remaining age Evidencing System or the provider in a customer’s Computerized Meter may opt to provide a funds advance in Resetting System account, after such accordance with paragraph (c) of this time as the customer provides a writ- section. ten request to the provider, as long as (c) If the RC chooses to offer ad- the request meets the Postal Service vancement of funds to customers, the approved minimum and time frame. RC is required to maintain a deposit with the Postal Service equal to at (i) Security and Revenue Protection. To least one (1) day’s average funds ad- receive Postal Service approval to con- vanced. The total amount of funds ad- tinue to operate systems in the CMRS vanced to customers on any given day environment, the RC must submit to a shall not exceed the amount the pro- periodic examination of its CMRS sys- vider has on deposit with the Postal tem and any other applications and Service. The Postal Service shall not technology infrastructure that may be liable for any payment made by the have a material impact on Postal Serv- RC on behalf of a customer that is not ice revenues, as determined by the reimbursed by the customer, since the Postal Service. The examination shall RC is solely responsible for the collec- be performed by a qualified, inde- tion of advances made by the RC. pendent audit firm and shall be con- (d) The CMRS customer is permitted ducted in accordance with the State- to make deposits in one of three ways: ment on Auditing Standards (SAS) No. check, electronic funds transfer (or 70, Service Organizations, developed by wire transfer), or automated clearing- the American Institute of Certified house (ACH) transfer. These deposits Public Accountants (AICPA), as must be remitted to the Postal Serv- amended or superseded. The examina- ice’s designated bank account. tion shall include testing of the oper- (e) The RC must require each CMRS ating effectiveness of relevant RC in- customer that requests a meter reset- ternal controls (Type II SAS70 Report). ting to provide the meter serial num- If the service organization uses another ber, the CMRS account number, and service organization (sub-service pro- the meter’s ascending and descending vider), Postal Service Management register readings. The RC must verify should consider the nature and materi- that there are sufficient funds in the ality of the transactions processed by customer’s CMRS account to cover the the sub-service organization and the postage setting requested before pro- contribution of the sub-service organi- ceeding with the setting transaction zation’s processes and controls in the (unless the RC opts to provide the cus- achievement of the Postal Service’s in- tomer a funds advance). formation processing objectives. The (f) The Postal Service requires that Postal Service should have access to the RC publicize to all CMRS cus- the sub-service organization’s SAS 70 tomers the following payment options report. The control objectives to be (listed in order of preference): covered by the SAS 70 report are sub- (1) Automated clearinghouse (ACH) ject to Postal Service review and ap- debits/credits. proval and are to be provided to the

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Postal Service 30 days prior to the ini- ACKNOWLEDGMENT OF DEPOSIT tiation of each examination period. As REQUIREMENT—METERS a result of the examination, the audi- By signing this meter rental agreement, tor shall provide the RC and the Postal you the customer represent that you have Service with an opinion on the design read the Acknowledgment of Deposit Require- and operating effectiveness of the RC’s ment—Meters and are familiar with its terms. You agree that, upon execution of this agree- internal controls related to the CMRS ment with the RC, you will also be bound by system and any other applications and all terms and conditions of the Acknowledg- technology infrastructure considered ment of Deposit Requirement—Meters, as it material to the services provided to the may be amended from time to time. Postal Service by the RC. Such exami- [71 FR 65733, Nov. 9, 2006, as amended at 75 nations are to be conducted on no less FR 56472, Sept. 16, 2010] than an annual basis, and are to be as of and for the twelve months ended § 501.16 PC postage payment method- June 30 of each year (except for the pe- ology. riod ending June 30, 2010, for which the (a) The PC Postage customer is per- period of coverage will be no less than mitted to make payments for postage six months, and except for new con- in one of two ways: Automated clear- tracts for which the examination pe- inghouse (ACH) transfer or credit card. riod will be no less than the period (b) The provider must make pay- from the contract date to the following ments on behalf of the customer to the June 30, unless otherwise agreed to by Postal Service in accordance with con- the Postal Service). The examination tractual and/or regulatory responsibil- reports are to be provided to the Postal ities. Service by August 15 of each year. To (c) The Postal Service requires that the extent that internal control weak- the provider publicize to all PC Post- nesses are identified in a Type II SAS age customers the following payment 70 report, the Postal Service may re- options (listed in order of preference): quire the remediation of such weak- (1) Automated clearinghouse (ACH) debits/credits. nesses and review working papers and (2) Credit cards. engage in discussions about the work (d) Returned ACH debits are the re- performed with the auditor. Postal sponsibility of the Postal Service. The Service requires that all remediation RC must lock the customer account efforts (if applicable) are completed immediately so that the customer is and reported by the RC prior to the unable to reset the account until the Postal Service’s fiscal year end (Sep- Postal Service receives payment in tember 30). The RC will be responsible full. for all costs to conduct these examina- (e) Refunds. The provider issues a re- tions. fund to a customer for any unused (j) Inspection of records and facilities. postage in a Postage Evidencing Sys- The RC must make its facilities that tem. After verification by the Postal handle the operation of the computer- Service, the provider will be reim- ized resetting system and all records bursed by the Postal Service for the in- about the operation of the system dividual refunds provided to customers available for inspection by representa- by the provider. tives of the Postal Service at all rea- (f) Security and revenue protection. To sonable times. At its discretion, the receive Postal Service approval to con- Postal Service may continue to fund tinue to operate PC Postage systems, inspections as it has in the past, pro- the provider must submit to a periodic vided the costs are not associated with examination of its PC Postage system a particular security issue related to and any other applications and tech- the provider’s CMRS or supporting in- nology infrastructure that may have a frastructure. material impact on Postal Service rev- (k) The RC is required to incorporate enues, as determined by the Postal Service. The examination shall be per- the following language into its meter formed by a qualified, independent rental agreements: audit firm and shall be conducted in

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accordance with the Statement on Au- (g) Inspection of records and facilities. diting Standards (SAS) No. 70, Service The provider must make its facilities, Organizations, developed by the Amer- which handle the operation of the PC ican Institute of Certified Public Ac- Postage system and all records about countants (AICPA), as amended or su- the operation of the system, available perseded. The examination shall infor inspection by representatives of the clude testing of the operating effective- Postal Service at all reasonable times. ness of relevant provider internal con- (h) To the extent that the customer trols (Type II SAS 70 Report). If the maintains funds on deposit for the pay- service organization uses another serv- ment of postage, the provider is re- ice organization (sub-service provider), quired to incorporate the following lan- Postal Service Management should guage into its agreements with PC consider the nature and materiality of Postage customers: the transactions processed by the sub- service organization and the contribu- ACKNOWLEDGMENT OF DEPOSIT tion of the sub-service organization’s REQUIREMENT—PC POSTAGE processes and controls in the achieve- By signing this agreement with the pro- ment of the Postal Service’s informa- vider, you represent that you have read the tion processing objectives. The Postal Acknowledgment of Deposit Requirement— Service should have access to the sub- PC Postage and are familiar with its terms. service organization’s SAS 70 report. You agree that, upon execution of this agreement with the provider, you will also be The control objectives to be covered by bound by all terms and conditions of the Ac- the SAS 70 report are subject to Postal knowledgment of Deposit Requirement—PC Service review and approval and are to Postage, as it may be amended from time to be provided to the Postal Service 30 time. days prior to the initiation of each ex- [72 FR 33163, June 15, 2007, as amended at 75 amination period. As a result of the ex- FR 56472, Sept. 16, 2010] amination, the auditor shall provide the provider, and the Postal Service, § 501.17 Decertified Postage Evidenc- with an opinion on the design and oper- ing Systems. ating effectiveness of the internal con- (a) A Decertified Postage Evidencing trols related to the PC Postage system System is a device for which the pro- and any other applications and tech- vider’s authority to distribute has been nology infrastructure considered mate- withdrawn by the Postal Service as a rial to the services provided to the result of any retirement plan for a Postal Service by the provider. Such given class of meters published by the examinations are to be conducted on Postal Service in the FEDERAL REG- no less than an annual basis, and are to ISTER; a suspension or revocation under be as of and for the twelve months § 501.6; or a voluntary withdrawal un- ended June 30 of each year (except for dertaken by the provider. the period ending June 30, 2010 for (b) A Decertified Postage Evidencing which the period of coverage will be no System must be withdrawn from serv- less than six months, and except for ice by the date agreed to by the Postal new contracts for which the examina- Service and provider. tion period will be no less than the pe- (c) To the extent postage meters are riod from the contract date to the fol- involved, the provider must utilize the lowing June 30, unless otherwise agreed approved procedures for lost and stolen to by the Postal Service). The exam- meters under § 501.14(c)(7) to locate the ination reports are to be provided to meter and remove it from service by the Postal Service by August 15 of each the agreed upon date. year. To the extent that internal con- (d) Decertified Postage Evidencing trol weaknesses are identified in a Systems that are not submitted to the Type II SAS 70 report, the Postal Serv- Postal Service for refund within one ice may require the remediation of hundred and eighty (180) days of the such weaknesses and review working agreed upon withdrawal from service papers and engage in discussions about date will not be eligible for refund of the work performed with the auditor. unused postage. The provider will be responsible for all (e) Postage indicia printed by Decer- costs to conduct these examinations. tified Postage Evidencing Systems

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may no longer be considered valid post- the standards for its care or use are not age one hundred and eighty (180) days followed. from the agreed upon withdrawal from (4) The Postage Evidencing System is service date. kept or used outside the customs territory of the United States or those U.S. § 501.18 Customer information and au- territories and possessions where the thorization. Postal Service operates. (a) Authorized providers must elec- (5) The customer is in possession of a tronically transmit the necessary cus- Decertified Postage Evidencing Sys- tomer information to the designated tem. Postal Service central data processing (d) The provider must electronically facility, in Postal Service-specified for- transmit any updates to the necessary mat, in order for the Postal Service to customer information to the des- authorize a customer to use a Postage ignated Postal Service central data Evidencing System. Postal Service re- processing facility, in Postal Service- ceipt and acceptance of the customer specified format. information provides the customer (e) No one other than an authorized with the authorization to possess or provider may possess a Postage Evi- use a Postage Evidencing System in ac- dencing System without a valid rental cordance with DMM 604 Postage Pay- or other agreement with the provider. ment Methods, 4.0 Postage Meters and Other parties in possession of a Post- PC Postage Products (Postage Evidenc- age Evidencing System must imme- ing Systems). diately surrender it to the provider or (b) The Postal Service may refuse to the Postal Service. issue a customer authorization to use a (f) The Postal Service may use cus- Postage Evidencing System for the fol- tomer information consistent with the lowing reasons: Privacy Act and the Postal Service’s (1) The customer submitted false or privacy policies posted on http:// fictitious information. www.usps.com. Examples include the (2) Within five years preceding sub- following: mission of the information, the cus- (1) Communication with customers tomer violated any standard for the who may no longer be visiting a tradi- care or use of the Postage Evidencing tional Postal Service retail outlet or System that resulted in revocation of communication with customers that customer’s authorization. through any new retail channels. (3) Or there is sufficient reason to be- (2) Issuance (including re-authoriza- lieve that the Postage Evidencing Sys- tion, renewal, transfer, revocation or tem is to be used in violation of the ap- denial, as applicable) of authorization plicable standards. to use a Postage Evidencing System to (c) The Postal Service will notify the a postal patron that uses a Postage Ev- provider of the revocation of a cus- idencing System, and communications tomer’s authorization to use a Postage with respect to the status of such au- Evidencing System. Within ten (10) thorization. days of receipt of the notice of revoca- (3) Disclosure to a meter provider of tion, the provider must cancel any the identity of any meter required to lease or other agreement and remove be removed from service by that meter the Postage Evidencing System from provider, and any related customer service. A customer’s authorization to data, as the result of revocation of an use a Postage Evidencing system is authorization to use a Postage Evi- subject to revocation for any of the fol- dencing System, questioned accurate lowing reasons: registration of that meter, or de-cer- (1) A Postage Evidencing System is tification by the Postal Service of any used for any illegal scheme or enter- particular class or model of postage prise. meter. (2) The customer’s Postage Evidenc- (4) Tracking the movement of meters ing System is not used for twelve (12) between a meter provider and its cus- consecutive months. tomers and communications to a meter (3) Sufficient control of a Postage provider (but not to any third party Evidencing System is not exercised or other than the customer) concerning

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such movement. The term meter pro- that provider’s customers and systems vider includes a meter provider’s deal- that may be necessary to permit such ers and agents. provider to synchronize its computer (5) To transmit general information databases with information contained to all Postage Evidencing System cus- in the computer files of the Postal tomers concerning rate and rate cat- Service. egory changes implemented or pro- (14) Subject to the conditions stated posed for implementation by the Postal herein, to communicate in oral or writ- Service. ten form with any or all applicants any (6) To advertise Postal Service serv- information that the Postal Service ices relating to the acceptance, proc- views as necessary to enable the Postal essing, and delivery of, or postage pay- Service to carry out its duties and pur- ment for, metered mail. poses under part 501. (7) To allow the Postal Service to communicate with Postal Service cus- § 501.19 Intellectual property. tomers on products, services, and other Providers submitting Postage Evi- information otherwise available to dencing Systems to the Postal Service Postal Service customers through tra- for approval are responsible for obtain- ditional retail outlets. ing all intellectual property licenses (8) Any internal use by Postal Serv- that may be required to distribute ice personnel, including identification their product in commerce and to allow and monitoring activities relating to the Postal Service to process mail Postage Evidencing Systems, provided bearing the indicia produced by the that such use does not result in the dis- Postage Evidencing System. To the ex- closure of applicant information to any tent approval is granted and the Post- third party or will not enable any third age Evidencing System is capable of party to use applicant information for being used in commerce, the provider its own purposes; except that the appli- shall indemnify the Postal Service for cant information may be disclosed to use of such intellectual property in other governmental agencies for law both the use of the Postage Evidencing enforcement purposes as provided by System and the processing of mail law. bearing indicia produced by the Post- (9) Identification of authorized Post- age Evidencing System. age Evidencing System providers or announcement of the de-authorization of PART 551—SEMIPOSTAL STAMP an authorized provider, or provision of PROGRAM currently available public information, where an authorized provider is identi- Sec. fied. 551.1 Semipostal Stamp Program. (10) To promote and encourage the 551.2 Semipostal stamps. use of Postage Evidencing Systems as a 551.3 Procedure for selection of causes and recipient executive agencies. form of postage payment, provided that 551.4 Submission requirements and selec- the same information is provided to all tion criteria. Postage Evidencing System customers 551.5 Frequency and other limitations. and no particular Postage Evidencing 551.6 Pricing. System provider will be recommended 551.7 Calculation of funds for recipient exec- by the Postal Service. utive agencies. (11) To contact customers in cases of 551.8 Cost offset policy. revenue fraud or revenue security. AUTHORITY: 39 U.S.C. 101, 201, 203, 401, 403, (12) Disclosure to a Postage Evidenc- 404, 410, 414, 416. ing System provider of applicant infor- SOURCE: 66 FR 31826, June 12, 2001, unless mation pertaining to that provider’s otherwise noted. customers that the Postal Service views as necessary to enable the Postal § 551.1 Semipostal Stamp Program. Service to carry out its duties and pur- The Semipostal Stamp Program is poses. established under the Semipostal Au- (13) To transmit to a Postage Evi- thorization Act, Public Law 106–253, 114 dencing System provider all applicant Stat. 634 (2000), as amended by Public and system information pertaining to Law 107–67, section 652, 115 Stat. 514

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(2001). The Office of Stamp Services has (b) Proposals will be received by the primary responsibility for admin- office of Stamp Services, which will re- istering the Semipostal Stamp Pro- view each proposal under § 551.4. gram. The Office of Accounting, Fi- (c) Those proposals that the office of nance, Controller has primary respon- Stamp Services determines satisfy the sibility for the financial aspects of the requirements of § 551.4 will be for- Semipostal Stamp Program. warded for consideration by the Citi- [67 FR 5215, Feb. 5, 2002] zens’ Stamp Advisory Committee, which is described in Administrative § 551.2 Semipostal stamps. Support Manual (ASM) section 644.5. For availability of ASM 644.5, contact Semipostal stamps are stamps that the Office of Stamp Services (202) 268– are sold for a price that exceeds the postage value of the stamp. The dif- 2319. ference between the price and postage (d) The Citizens’ Stamp Advisory value of semipostal stamps, also known Committee will review eligible pro- as the differential, less an offset for posals forwarded by the office of Stamp reasonable costs, as determined by the Services. Based on the proposals sub- Postal Service, consists of a contribu- mitted, the Citizens’ Stamp Advisory tion to fund causes determined by the Committee will make recommenda- Postal Service to be in the national tions on a cause and eligible recipient public interest and appropriate. Funds executive agency(ies) to the post- are to be transferred to selected recipi- master general. If no eligible proposals ent executive agencies, as defined are recommended, the Postal Service under 5 U.S.C. 105. The office of Stamp will solicit additional proposals Services determines the print quan- through publication of a notice in the tities of semipostal stamps. The use of FEDERAL REGISTER and through other semipostal stamps shall be voluntary means as it determines in its discre- on the part of postal patrons. tion. (e) Meetings of the Citizens’ Stamp § 551.3 Procedure for selection of Advisory Committee are closed, and causes and recipient executive deliberations of the Citizens’ Stamp agencies. Advisory Committee are predecisional The Postal Service is authorized to in nature. select causes and recipient executive (f) The postmaster general will act on agencies to receive funds raised the recommendations of the Citizens’ through the sale of semipostal stamps. Stamp Advisory Committee. The deci- The procedure for selection of causes sion of the postmaster general shall and recipient executive agencies is as consist of the final agency decision. follows: (g) The office of Stamp Services will (a) In advance of the issuance of a notify the executive agency(ies) in semipostal stamp, the office of Stamp writing of a decision designating the Services will publish a request for pro- agency(ies) as recipients of funds from posals in the FEDERAL REGISTER invit- a semipostal stamp. ing interested persons to submit pro- (h)(1) A proposal submission may des- posals for a cause and recipient execu- ignate one or two recipient executive tive agencies for a future semipostal agencies to receive funds, but if more stamp. The notice will specify the be- than one executive agency is proposed, ginning and ending dates of the period the proposal must specify the percent- during which proposals may be sub- age shares of differential revenue, net mitted. The notice will also specify the of the Postal Service’s reasonable approximate period in which the semipostal stamp for which proposals costs, to be given to each agency. If are solicited is to be sold. The office of percentage shares are not specified, it Stamp Services may publicize the re- is presumed that the proposal intends quest for proposals through other that the funds be split evenly between means, as it determines in its discre- the agencies. If more than two recipi- tion. ent executive agencies are proposed to

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receive funds and the proposal is se- dinary circumstances, the office of lected, the proposal is treated as pre- Stamp Services may, in its discretion, scribed by paragraph (h)(3) of this sec- consider a late-filed proposal. tion. (2) The proposal submission must be (2) If more than one proposal is sub- signed by the individual or a duly au- mitted for the same cause, and the pro- thorized representative and must proposals would have different executive vide the mailing address, phone num- agencies receiving funds, the funds ber, fax number (if available), and E- would be evenly divided among the ex- mail address (if available) of a des- ecutive agencies, with no more than ignated point of contact. two agencies being designated to re- (3) The submission must describe the ceive funds, as determined by the vice cause and the purposes for which the president and consumer advocate. funds would be spent. (3) Within 10 days of receipt of a no- (4) The submission must demonstrate tice indicating that it has been se- that the cause to be funded has broad lected to receive funds, a selected agen- national appeal, and that the cause is cy could request a proportionately in the national public interest and fur- larger share if it can demonstrate that thers human welfare. Respondents are its share of total funding of the cause encouraged to submit supporting docu- from other sources (excluding any addi- mentation demonstrating that funding tional funds available as a result of the the cause would benefit the national semipostal stamp) exceeds that of the public interest. other recipient executive agency. The (5) The submission must be accom- request must be in writing and must be panied by a letter from an executive sent to the manager of Stamp Services. agency or agencies on agency letter- In those cases, the determination re- head representing that: garding the proportional share to be di- (i) it is an executive agency as de- vided among the recipient executive fined under 5 U.S.C. 105, agencies is made by the Postal Serv- (ii) it is willing and able to imple- ice’s vice president and consumer advo- ment the proposal, and cate. (iii) it is willing and able to meet the (i) As either a separate matter, or in requirements of the Semipostal Au- combination with recommendations on thorization Act, if it is selected. The a cause and a recipient executive agen- letter must be signed by a duly author- cy(ies), the Citizens’ Stamp Advisory ized representative of the agency. Committee will recommend to the (b) Proposal submissions become the postmaster general a design (i.e., art- property of the Postal Service and are work) for the semipostal stamp. The not returned to interested persons who postmaster general will make a final submit them. Interested persons who determination on the design to be fea- submit proposals are not entitled to tured. any remuneration, compensation, or any other form of payment, whether § 551.4 Submission requirements and their proposal submissions are selected selection criteria. or not, for any reason. (a) Proposals on recipient executive (c) The following persons are dis- agencies and causes must satisfy the qualified from submitting proposals: following requirements: (1) Any contractor of the Postal (1) Interested persons must timely Service that may stand to benefit fi- submit an original and 20 copies of the nancially from the Semipostal Stamp proposal. For purposes of this section, Program; or interested persons include, but are not (2) Members of the Citizens’ Stamp limited to, individuals, corporations, Advisory Committee and their imme- associations, and executive agencies diate families, and employees or con- under 5 U.S.C. 105. Interested persons tractors of the Postal Service, and submitting proposals are also encour- their immediate families, who are in- aged to submit an Adobe Acrobat (.pdf) volved in any decision-making related file saved on a 3.5 inch diskette or CD- to causes, recipient agencies, or art- ROM diskette containing the entire work for the Semipostal Stamp Pro- contents of the submission. In extraor- gram.

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(d) Consideration for evaluation will postmaster general, after review of not be given to proposals that request supporting documentation prepared by support for the following: Anniver- the office of Stamp Services. saries; public works; people; specific [66 FR 31826, June 12, 2001, as amended at 67 organizations or associations; commer- FR 5215, Feb. 5, 2002] cial enterprises or products; cities, towns, municipalities, counties, or sec- § 551.6 Pricing. ondary schools; hospitals, libraries, or (a) The Semipostal Authorization similar institutions; religious institu- Act, as amended by Public Law 107–67, tions; causes that do not further section 652, 115 Stat. 514 (2001), pre- human welfare; or causes determined scribes that the price of a semipostal by the Postal Service or the Citizens’ stamp is the rate of postage that would Stamp Advisory Committee to be in- otherwise regularly apply, plus a dif- consistent with the spirit, intent, or ferential of not less than 15 percent. history of the Semipostal Authoriza- The price of a semipostal stamp shall tion Act. be an amount that is evenly divisible (e) Artwork and stamp designs should by five. For purposes of this provision, not be submitted with proposals. the First-Class Mail ® single-piece first- § 551.5 Frequency and other limita- ounce rate of postage will be consid- tions. ered the rate of postage that would otherwise regularly apply. (a) The Postal Service is authorized (b) The prices of semipostal stamps to issue semipostal stamps for a 10- are determined by the Governors of the year period beginning on the date on United States Postal Service in accord- which semipostal stamps are first sold ance with the requirements of 39 U.S.C. to the public under 39 U.S.C. 416. The 416. 10-year period will commence after the sales period of the Breast Cancer Re- [66 FR 31826, June 12, 2001, as amended at 67 search stamp is concluded in accord- FR 5216, Feb. 5, 2002] ance with the Stamp Out Breast Can- cer Act, and as amended by the § 551.7 Calculation of funds for recipi- Semipostal Authorization Act, the ent executive agencies. Breast Cancer Research Stamp Act of (a) The Postal Service is to deter- 2001, and Public Law 107–67, section 650, mine its reasonable costs in executing 115 Stat. 514. The Office of Stamp Serv- its responsibilities pursuant to the ices will determine the date of com- Semipostal Authorization Act, as spec- mencement of the 10-year period. ified in § 551.8. These costs are offset (b) The Postal Service will offer only against the revenue received through one semipostal stamp for sale at any sale of each semipostal stamp in excess given time during the 10-year period. of the First-Class Mail single-piece (c) The sales period for any given first-ounce rate in effect at the time of semipostal stamp is limited to no more purchase. than 2 years, as determined by the of- (b) Any reasonable costs offset by the fice of Stamp Services. Postal Service shall be retained by it, (d) Prior to or after the issuance of a along with revenue from the sale of the given semipostal stamp, the Postal semipostal stamps, as recorded by sales Service reserves the right to withdraw units through the use of a specially the semipostal stamp from sale, or to designated account. reduce the sales period, if, inter alia: (c) The Postal Service is to pay des- (1) Its sales or revenue statistics are ignated recipient executive agency(ies) lower than expected, the remainder of the differential rev- (2) The sales or revenue projections enue less an amount to recover the rea- are lower than previously expected, or sonable costs of the Postal Service, as (3) The cause or recipient executive determined under § 551.8. agency does not further, or comply (d) The amounts for recipient execu- with, the statutory purposes or re- tive agencies are transferred in a man- quirements of the Semipostal Author- ner and frequency determined by mu- ization Act. The decision to withdraw a tual agreement, consistent with the re- semipostal stamp is to be made by the quirements of 39 U.S.C. 416.

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§ 551.8 Cost offset policy. (e) Cost items recoverable from the differential revenue include, but are (a) Postal Service policy is to recover not limited to, the following: from the differential revenue for each (1) Packaging costs in excess of the semipostal stamp those costs that are cost to package comparable stamps; determined to be attributable to the (2) Printing costs of flyers and spe- semipostal stamp and that would not cial receipts; normally be incurred for stamps having (3) Costs of changes to equipment; similar sales; physical characteristics; (4) Costs of developing and executing and marketing, promotional, and pub- marketing and promotional plans in lic relations activities (hereinafter excess of the cost for comparable comparable stamps ). ‘‘ ’’ stamps; (b) Overall responsibility for track- (5) Other costs specific to the ing costs associated with semipostal semipostal stamp that would not nor- stamps will rest with the Office of Ac- mally have been incurred for com- counting, Finance, Controller. Indi- parable stamps; and vidual organizational units incurring (6) Costs in paragraph (g) of this sec- costs will provide supporting docu- tion that materially exceed those that mentation to the Office of Accounting, would normally have been incurred for Finance, Controller. comparable stamps. (c) For each semipostal stamp, the (f) The Semipostal Stamp Program Office of Stamp Services, in coordina- incorporates the following provisions tion with the Office of Accounting, Fi- that are intended to maximize differen- nance, Controller, shall, based on judg- tial revenues available to the selected ment and available information, iden- causes. These include, but are not lim- tify the comparable stamp(s) and cre- ited to, the following: ate a profile of the typical cost charac- (1) Avoiding, to the extent prac- teristics of the comparable stamp(s) ticable, promotional costs that exceed (e.g., manufacturing process, gum those of comparable stamps; type), thereby establishing a baseline (2) Establishing restrictions on the for cost comparison purposes. The de- number of concurrently issued termination of comparable stamps may semipostal stamps; and change during or after the sales period, (3) Making financial and retail sys- and different comparable stamp(s) may tem changes in conjunction with regu- be used for specific cost comparisons. larly scheduled revisions. (d) Except as specified, all costs asso- (g) Other costs attributable to ciated with semipostal stamps will be semipostals but which would normally tracked by the Office of Accounting, be incurred for comparable stamps Finance, Controller. Costs that will not would be recovered through the post- be tracked include: age component of the semipostal stamp (1) Costs that the Postal Service de- price. Such costs are not recovered, un- termines to be inconsequentially less they materially exceed the costs of small, which include those cost items comparable stamps. These include, but which are less than $3,000 per invoice are not limited to, the following: and are not specifically charged to a (1) Costs of stamp design (including semipostal finance number. market research); (2) Costs for which the cost of track- (2) Costs of stamp production and ing or estimation would be burdensome printing; (e.g., costs for which the cost of track- (3) Costs of stamp shipping and dis- ing exceeds the cost to be tracked); tribution; (3) Costs attributable to mail to (4) Estimated training costs for field which semipostal stamps are affixed staff, except for special training associ- (which are attributable to the appro- ated with semipostal stamps; priate class and/or subclass of mail); (5) Costs of stamp sales (including and employee salaries and benefits); (4) Administrative and support costs (6) Costs associated with the with- that the Postal Service would have in- drawal of the stamp issue from sale; curred whether or not the Semipostal (7) Costs associated with the destruc- Stamp Program had been established. tion of unsold stamps; and

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(8) Costs associated with the incorpo- advertising for the Postal Service as an ration of semipostal stamp images into entity. [66 FR 31826, June 12, 2001, as amended at 67 FR 5216, Feb. 5, 2002; 69 FR 7689, Feb. 19, 2004; 70 FR 6765, Feb. 9, 2005]

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PART 601—PURCHASING OF sition of property (except real prop- PROPERTY AND SERVICES erty) and services. § 601.104 Postal purchasing authority. Sec. 601.100 Purchasing policy. Only the Postmaster General/CEO; 601.101 Effective date. the Postal Service’s vice president, 601.102 Revocation of prior purchasing regu- Supply Management; contracting offi- lations. cers with written statements of spe- 601.103 Applicability and coverage. cific authority; and others designated 601.104 Postal purchasing authority. in writing or listed in this part have 601.105 Business relationships. the authority to bind the Postal Serv- 601.106 Reserved. ice with respect to entering into, modi- 601.107 Initial disagreement resolution. fying, or terminating any contract re- 601.108 SDR Official disagreement resolu- garding the acquisition of property, tion. 601.109 Contract claims and disputes. services, and related purchasing mat- 601.110 Payment of claims. ters. The Postal Service’s vice presi- 601.111 Interest on claim amounts. dent, Supply Management, or his or 601.112 Review of adverse decisions. her designee, may also delegate in 601.113 Debarment, suspension, and ineligi- writing local buying authority bility. throughout the Postal Service. AUTHORITY: 39 U.S.C. 401, 404, 410, 411, 2008, 5001–5605. § 601.105 Business relationships. (a) General. A person or organization SOURCE: 72 FR 58252, Oct. 15, 2007, unless otherwise noted. wishing to have a continuing business relationship with the Postal Service in § 601.100 Purchasing policy. purchasing matters is expected to treat the Postal Service in the same manner The Postal Service acquires property as it would other valued customers of and services pursuant to the authority similar size and importance. The Post- of 39 U.S.C. 410. al Service reserves the right to decline § 601.101 Effective date. to accept or consider proposals from a person or organization when that per- These regulations are effective No- son or organization fails to meet rea- vember 14, 2007. Solicitations issued sonable business expectations or pro- and resulting contracts entered into vide a high level of confidence regard- prior to that date will be governed by ing quality, prompt service, and overall the regulations in effect at the time professionalism. the solicitation was issued. (b) Declining to accept or consider proposals. The Postal Service may decline § 601.102 Revocation of prior pur- to accept or consider proposals when a chasing regulations. person or organization exhibits unac- All previous postal purchasing regu- ceptable conduct or business practices lations, including the Postal Con- that do not meet reasonable business tracting Manual, Procurement Manual, expectations or does not provide a high the Purchasing Manual (Issues 1, 2 and level of confidence about the entity’s 3), and procurement handbooks, circu- current or future business relations. lars, and instructions, are revoked and Unacceptable conduct or business prac- are superseded by the regulations con- tices include, but are not limited to: tained in this part. (1) Marginal or dilatory contract performance; § 601.103 Applicability and coverage. (2) Failure to deliver on promises The regulations contained in this made in the course of dealings with the part apply to all Postal Service acqui- Postal Service;

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(3) Providing false or misleading in- (3) Interested parties. Actual or pro- formation regarding financial condi- spective offerors whose direct eco- tion, ability to perform, or other mate- nomic interests would be affected by rial matters, including any aspect of the award of, or failure to award, the performance on a contract; and contract. (4) Engaging in other questionable or (4) Lodge. A disagreement is lodged unprofessional conduct or business on the date it is received by the con- practices. tracting officer or the Supplier Dis- (c) Notice. If the Postal Service elects agreement Resolution Official, as ap- to decline to accept or consider pro- propriate. posals from a person or organization, (5) SDR Official. The Supplier Dis- the vice president, Supply Manage- agreement Resolution Official, a con- ment, or his or her designee, will pro- tracting officer designated by the Post- vide a written notice to the person or al Service to perform the functions es- organization by Certified Mail, return re- tablished under § 601.108. ceipt requested, explaining: (b) Policy. It is the policy of the Post- (1) The reasons for the decision; al Service and in the interest of its (2) The effective date of the decision; suppliers to resolve disagreements by (3) The scope of the decision; mutual agreement between the sup- (4) The period of time the decision plier and the responsible contracting will be in effect, (a matter at the Post- officer. All disagreements must be al Service’s discretion consistent with lodged with the responsible contracting the circumstances); and office in writing via facsimile, e-mail, (5) The supplier’s right to contest the hand delivery, or U.S. Mail. For dis- decision. agreements that concern the award of (d) Contesting Decisions. If a person or a contract, the disagreement shall be organization believes the decision not lodged within 10 days of the date the to accept or consider proposals is not supplier received notification of award merited, it may contest the matter in or 10 days from the date the supplier accordance with § 601.108. The Postal received a debriefing, whichever is Service may reconsider the matter and, later. For disagreements that concern if warranted, rescind or modify the de- alleged improprieties in a solicitation, cision to decline to accept or consider the contracting officer must receive proposals. the disagreement before the time set for the receipt of proposals, unless the § 601.106 [Reserved] disagreement concerns an alleged impropriety that does not exist in the ini- § 601.107 Initial disagreement resolu- tial solicitation but which is subse- tion. quently incorporated into the solicita- (a) Definitions. tion, in which event the contracting of- (1) Days. Calendar days; however, any ficer must receive the disagreement no time period will run until a day that is later than the next closing time for the not a Saturday, Sunday, or legal holi- receipt of proposals following the in- day. corporation. The resolution period (2) Disagreements. All disputes, pro- shall last 10 days from the date when tests, claims, disagreements, or de- the disagreement is lodged with the mands of whatsoever nature arising in contracting officer. During the sup- connection with the acquisition of plier-contracting officer 10-day resolu- property and services within the scope tion period, the responsible contracting of § 601.103 of this chapter, except those: officer’s management may help to re- (i) That arise pursuant to a contract solve the disagreement. At the conclu- under the Contract Disputes Act under sion of the 10-day resolution period, the § 601.109; contracting officer must communicate, (ii) That concern debarment, suspen- in writing, to the supplier his or her sion, or ineligibility under § 601.113; or resolution of the disagreement. (iii) That arise out of the nonrenewal (c) Alternative dispute resolution. Al- of transportation contracts containing ternative dispute resolution (ADR) pro- other provisions for the review of such cedures may be used to resolve a dis- decisions. agreement. If the use of ADR is agreed

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upon, the 10-day limitation is sus- agreement resolution attempt with the pended. If agreement cannot be contracting officer. The address of the reached, the supplier has 10 days to SDR Official is: Room 4130 (Attn: SDR lodge its disagreement with the SDR Official), United States Postal Service Official. Headquarters, 475 L’Enfant Plaza, SW., [75 FR 1542, Jan. 12, 2010] Washington, DC 20260–4130. e-mail Ad- dress: [email protected]. Fax Num- § 601.108 SDR Official disagreement ber: (202) 268–0075. resolution. (d) Lodging timeframes. Disagreements (a) General. If a disagreement under under § 601.107 or contests of decisions § 601.107 is not resolved within 10 days under § 601.105 must be lodged with the after it was lodged with the con- SDR Official within the following time- tracting officer, if the use of ADR fails frames: to resolve it at any time, if the sup- (1) Disagreements under § 601.107 not plier is not satisfied with the con- resolved with the contracting officer tracting officer’s resolution of the dis- must be lodged with the SDR Official agreement, or if the decision not to ac- within 20 days after they were lodged cept or consider proposals under with the contracting officer (unless § 601.105 is contested, the SDR Official ADR had been used to attempt to re- is available to provide final resolution solve them); of the matter. The Postal Service de- (2) Disagreements under § 601.107 for sires to resolve all such matters quick- which ADR had been agreed to be used ly and inexpensively in keeping with must be lodged with the SDR Official the regulations in this part. within 10 days after the supplier knew (b) Scope and applicability. This proce- or was informed by the contracting of- dure is established as the sole and ex- ficer or otherwise that the matter was clusive means to resolve disagreements not resolved; under § 601.107 and contests of decisions (3) Where a supplier is dissatisfied under § 601.105. This procedure is in- with the contracting officer’s resolu- tended to expeditiously resolve dis- tion of a disagreement under § 601.107, agreements that are not resolved at the supplier must lodge the disagree- the responsible contracting officer ment with the SDR Official within 10 level; to reduce litigation expenses, in- days after the supplier first receives convenience, and other costs for all notification of the contracting officer’s parties; to facilitate successful busi- resolution; and ness relationships with Postal Service (4) Contests of decisions under suppliers, the supplier community, and § 601.105 to decline to accept or consider other persons; and to develop further proposals must be lodged with the SDR the basis for the Postal Service’s pur- Official within 10 days of the supplier’s chasing decisions and the administra- receipt of the written notice explaining tive records concerning those deci- the decision. sions. All disagreements under § 601.107 (5) The SDR Official may grant an ex- and contests of decisions under § 601.105 tension of time to lodge a disagree- will be lodged with and resolved, with ment under § 601.107 or contest of deci- finality, by the SDR Official under and sion under § 601.105 or to provide sup- in accordance with the sole and exclu- porting information when warranted. sive procedure established in this sec- Any request for an extension must set tion. forth the reasons for the request, be (c) Lodging. The disagreement under made in writing, and be delivered to § 601.107 or contest of decision under the SDR Official on or before the time § 601.105 must be lodged with the SDR to lodge a disagreement lapses. Official in writing via facsimile, e- (e) Disagreement decision process. The mail, hand delivery, or U.S. Mail. The SDR Official will promptly provide a disagreement under § 601.107 or contest copy of a disagreement to the con- of decision under § 601.105 must state tracting officer, who will promptly no- the factual circumstances relating to it tify other interested parties. The SDR and the remedy sought. A disagree- Official will consider a disagreement ment under § 601.107 must also state the and any response by other interested scope and outcome of the initial dis- parties and appropriate Postal Service

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officials within a time frame estab- requested information may be taken lished by the SDR Official. The SDR into account by the SDR Official in the Official may also meet individually or decision. jointly with the person or organization (g) Final resolution by the SDR Official lodging the disagreement, other inter- and final contract award of the Postal ested parties, and/or Postal Service of- Service. A resolution by the SDR Offi- ficials, and may undertake other ac- cial will be final and binding. If the tivities in order to obtain materials, SDR Official’s final resolution affirms information, or advice that may help the original contract award of the con- to resolve the disagreement. The per- tracting officer, the contracting offi- son or organization lodging the dis- cer’s original contract award becomes agreement, other interested parties, or the Postal Service’s final contract Postal Service officials must promptly award, and may be subject to judicial provide all relevant, nonprivileged ma- review as described in paragraph (h) of terials and other information requested this section. If the SDR Official’s final by the SDR Official. If a submission resolution directs that the Postal Serv- contains trade secrets or other con- ice terminate the contract award and fidential information, it should be ac- issue a new solicitation, recompete the companied by a copy of the submission requirement, or reevaluate the current from which the confidential matter has award, the contracting officer shall im- been redacted. The SDR Official will plement promptly the SDR Official’s determine whether any redactions are final resolution. However, any contract appropriate and will be solely respon- award made by the contracting officer sible for determining the treatment of after a resolicitation, recompetition, any redacted materials. After obtain- or reevaluation directed by the SDR ing such information, materials, and Official is not a final contract award of advice as may be needed, the SDR Offi- the Postal Service that may be subject cial will promptly issue a written deci- to judicial review unless and until dis- sion resolving the disagreement and agreements concerning that contract will deliver the decision to the person award have been lodged and resolved or organization lodging the disagree- with finality by the SDR Official. ment, other interested parties, and ap- (h) Judicial review. The Postal Serv- propriate Postal Service officials. ice’s final contract award, as described When resolving a disagreement raised in paragraph § 601.108(g), may be ap- under § 601.107, the SDR Official may pealed to a Federal court with jurisdic- grant remedies including, but not lim- tion based only upon an alleged viola- ited to, the following: tion of the regulations contained in (1) Directing the contracting officer this part or an applicable public law enacted by Congress. The party lodging to revise the solicitation or to issue a the disagreement may seek review of new solicitation; the Postal Service’s final contract (2) Directing the contracting officer award only after the mandatory admin- to recompete the requirement; istrative remedies provided under (3) Directing the contracting officer § 601.107 and § 601.108 have been ex- to reevaluate the award on the basis of hausted. current proposals and the evaluation (i) Resolution timeframe. It is intended factors contained in the solicitation; that this procedure generally will re- and solve disagreements under § 601.107 or (4) Directing the contracting officer contests of decisions under § 601.105 to terminate the contract or to refrain within approximately 30 days after re- from exercising options under the con- ceipt by the SDR Official. The time tract. may be shortened or lengthened de- (f) Guidance. The SDR Official will be pending on the complexity of the issues guided by the regulations contained in and other relevant considerations. this part and all applicable public laws enacted by Congress. Non-Postal Serv- [75 FR 1542, Jan. 12, 2010] ice procurement rules or regulations and revoked Postal Service regulations § 601.109 Contract claims and disputes. will not apply or be taken into ac- (a) General. This section implements count. Failure of any party to provide the Contract Disputes Act of 1978, as

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amended (41 U.S.C. 601–613). If ADR is part of the claim and refer the matter used, the SDR official may serve as a to the Office of Inspector General. mediator for contract performance dis- (g) Decision and appeal—(1) Con- agreements prior to bringing a contracting officer’s authority. A contract claim or dispute under this part. tracting officer is authorized to decide (b) Policy. It is the Postal Service’s or settle all claims arising under or re- intent to resolve contractual claims lating to a contract subject to the Con- and disputes by mutual agreement at tract Disputes Act, except for: the level of an authorized contracting (i) Claims or disputes for penalties or officer whenever possible. In addition, forfeitures prescribed by statutes or the Postal Service supports and en- regulation that a Federal agency ad- courages the use of alternative dispute ministers; or resolution as an effective way to under- (ii) Claims involving fraud. stand, address, and resolve conflicts (2) Contracting officer’s decision. The with suppliers. Efforts to resolve dif- contracting officer must review the ferences should be made before the facts pertinent to the claim, and may issuance of a final decision on a claim, obtain assistance from assigned coun- and even when the supplier does not sel and other advisors, and issue a final agree to use ADR, the contracting offi- decision in writing. The decision must cer should consider holding informal include a description of the claim or discussions between the parties in dispute with references to the perti- order to resolve the conflict before the nent contract provisions, a statement issuance of a final decision. of the factual areas of agreement and (c) Supplier claim initiation. Supplier disagreement, and a statement of the claims must be submitted in writing to contracting officer’s decision with sup- the contracting officer for final deci- porting rationale. sion. The contracting officer must doc- (3) Insufficient information. When the ument the contract file with evidence contracting officer cannot issue a deci- of the date of receipt of any submission sion because the supplier has not pro- that the contracting officer determines vided sufficient information, the con- is a claim. Supplier claims must be tracting officer may request the re- submitted within 6 years after accrual quired information. Further failure to of a claim unless the parties agreed to provide the requested information is an a shorter time period. The 6-year time adequate reason to deny the claim. period does not apply to contracts (4) Furnishing Decisions. The con- awarded prior to October 1, 1995. tracting officer must furnish a copy of (d) Postal Service claim initiation. The the decision to the supplier by Cer- contracting officer must issue a writ- tified MailTM, return receipt requested, ten decision on any Postal Service or by any other method that provides claim against a supplier, within six evidence of receipt. years after accrual of a claim, unless (5) Decisions on claims for $100,000 or the parties agreed in writing to a less. If the supplier has asked for a deci- shorter time period. The 6-year time sion within sixty days, the contracting period does not apply to contracts officer must issue a final decision on a awarded prior to October 1, 1995, or to claim of $100,000 or less within sixty a Postal Service claim based on a sup- calendar days of its receipt. The supplier claim involving fraud. plier may consider the contracting offi- (e) Certified claims. Each supplier cer’s failure to issue a decision within claim exceeding $100,000 must be ac- the applicable time period as a denial companied by a certification in accord- of its claim, and may file a suit or ap- ance with the supplier’s contract. peal on the claim. (f) Misrepresentation or fraud. When (6) Decisions on certified claims. For the contracting officer determines that certified claims over $100,000, the con- the supplier is unable to support any tracting officer must either issue a part of the claim and there is evidence final decision within sixty days of their or reason to believe the inability is at- receipt or notify the supplier within tributable to either misrepresentation the 60-day period of the time when a of fact or fraud on the supplier’s part, decision will be issued. The time period the contracting officer must deny that established must be reasonable, taking

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into account the size and complexity of final decision is issued on a claim so the claim, the adequacy of the sup- resolution of an appeal within the pe- plier’s supporting data, and any other riod set for an expedited disposition relevant factors. will not be delayed. Once an appeal is (7) Wording of decisions. The con- docketed, and expedited disposition is tracting officer’s final decision must elected, contracting officers must de- contain the following paragraph: ‘‘This vote sufficient resources to the appeal is the final decision of the contracting to ensure the schedule for resolution is officer pursuant to the Contract Dis- met. Nothing in this part precludes an putes Act of 1978 and the clause of your effort by the parties to settle a con- contract entitled Claims and Disputes. troversy after an appeal has been filed, You may appeal this decision to the although such efforts to settle the con- Postal Service Board of Contract Ap- troversy will not suspend processing peals by mailing or otherwise furnishing written notice (preferably in the appeal, unless the Board of Con- triplicate) to the contracting officer tract Appeals so directs. within ninety days from the date you § 601.110 Payment of claims. receive this decision. The notice should identify the contract by number, ref- Any claim amount determined in a erence this decision, and indicate that final decision to be payable, less any an appeal is intended. Alternatively, portion previously paid, should be you may bring an action directly in the promptly paid to the supplier without United States Court of Federal Claims prejudice to either party in the event within twelve months from the date of appeal or action on the claim. In the you receive this decision.’’ absence of appeal by the Postal Serv- (8) Additional wording for decisions of ice, a board or court decision favorable $50,000 or less. When the claim or claims in whole or in part to the supplier must denied total $50,000 or less, the con- be implemented promptly. In cases tracting officer must add the following when only the question of entitlement to the paragraph: ‘‘In taking an appeal has been decided and the matter of to the Board of Contract Appeals, you amount has been remanded to the par- may include in your notice of appeal an ties for negotiation, a final decision of election to proceed under the Board’s the contracting officer must be issued small claims (expedited) procedure, which provides for a decision within if agreement is not reached promptly. approximately 120 days, or an election § 601.111 Interest on claim amounts. to proceed under the Board’s accelerated procedure, which provides for a Interest on the amount found due on decision within approximately 180 the supplier’s claim must be paid from days. If you do not make an election in the date the contracting officer re- the notice of appeal, you may do so by ceived the claim (properly certified, if written notice anytime thereafter.’’ required) or from the date payment (9) Additional wording for decisions would otherwise be due, if that date is over $50,000 up to $100,000. When the later, until the date of payment. Sim- claim or claims denied total $100,000 or ple interest will be paid at the rate es- less, but more than $50,000, the con- tablished by the Secretary of the tracting officer must add the following Treasury for each 6-month period in to the paragraph: ‘‘In taking an appeal which the claim is pending. Informa- to the Board of Contract Appeals, you tion on the rate at which interest is may include in your notice of appeal an payable is announced periodically in election to proceed under the Board’s the Postal Bulletin. accelerated procedure, which provides for a decision within approximately 180 § 601.112 Review of adverse decisions. days. If you do not make an election in the notice of appeal, you may do so by Any party may seek review of an ad- written notice anytime thereafter.’’ verse decision of the Board of Contract (10) Information and resources. Con- Appeals in the Court of Appeals for the tracting officers must have sufficient Federal Circuit or in any other appro- information available at the time a priate forum.

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§ 601.113 Debarment, suspension, and (6) Suspension. An exclusion from ineligibility. contracting and subcontracting for a (a) General. Except as provided other- reasonable period of time due to speci- wise in this part, contracting officers fied reasons or the pendency of a debar- may not solicit proposals from, award ment proceeding. contracts to, or, when a contract pro- (7) Supplier. For the purposes of this vides for such consent, consent to subpart, a supplier is any individual, per- contracts with debarred, suspended, or son, or other legal entity that: ineligible suppliers. (i) Directly or indirectly (e.g., (b) Definitions—(1) Affiliate. A busi- through an affiliate) submits offers for, ness, organization, person, or indi- is awarded, or reasonably may be ex- vidual connected by the fact that one pected to submit offers for or be award- controls or has the power to control ed, a Postal Service contract, including the other or by the fact that a third a contract for carriage under Postal party controls or has the power to con- Service or commercial bills of lading, trol both. Indications of control in- or a subcontract under a Postal Service clude, but are not limited to, inter- contract; or locking management or ownership, (ii) Conducts business or reasonably identity of interests among family may be expected to conduct business members, shared facilities and equip- with the Postal Service as a subcon- ment, contractual relationships, com- tractor, an agent, or as a representa- mon use of employees, or a business en- tive of another supplier. tity organized following the debar- (c) Establishment and maintenance of ment, suspension, or proposed debar- lists—(1) The vice president, Supply ment of a supplier which has the same Management will establish, maintain, or similar management, ownership, or and make available a list of suppliers principal employees as the supplier debarred or suspended by the Postal that was debarred, suspended, or pro- Service to contracting officers. posed for debarment. Franchise agree- (2) The General Services Administra- ments are not conclusive evidence of tion (GSA) compiles and maintains a affiliation if the franchisee has a right consolidated list of all persons and en- to profit in proportion to its ownership tities debarred, suspended, proposed for and bears the risk of loss or failure. debarment, or declared ineligible by (2) Debarment. An exclusion from con- Federal agencies or the Government tracting and subcontracting for a rea- Accountability Office. GSA posts the sonable, specified period of time com- list on the Internet. mensurate with the seriousness of the (3) The vice president, Supply Man- offense, failure, or inadequacy of per- agement will notify the GSA of any formance. Postal Service debarment, suspension, (3) General Counsel. This includes the and change in the status of suppliers, General Counsel’s authorized rep- including any of their affiliates, on the resentative. Postal Service list. (4) Indictment. Indictment for a crimi- (d) Treatment of suppliers on Postal nal offense. An information or other Service or GSA lists. (1) Contracting offi- filing by competent authority charging cers will review the Postal Service and a criminal offense is given the same ef- GSA lists before making a contract fect as an indictment. award. (5) Ineligible. An exclusion from con- (2) Suppliers on the Postal Service tracting and subcontracting by an enti- list are excluded from receiving con- ty other than the Postal Service under tracts and subcontracts, and con- statutes, executive orders, or regula- tracting officers may not solicit pro- tions, such as the Davis-Bacon Act, the posals or quotations from, award con- Service Contract Act, the Equal Em- tracts to, or, when a contract provides ployment Opportunity Acts, the Walsh- for such consent, consent to sub- Healy Public Contracts Act, or the En- contracts with such suppliers, unless vironmental Protection Acts and re- the vice president, Supply Manage- lated regulations or executive orders, ment, or his or her designee, after con- to which the Postal Service is subject sultation with the General Counsel, or has adopted as a matter of policy. has approved such action. Suppliers on

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the Postal Service list may not provide ment, by exercise of an option, or oth- goods or services to other persons or erwise (unless the work is classified as entities for resale, in whole or part, to an insignificant or significant minor the Postal Service and such other per- service change to a mail transportation sons or entities are obligated to review contract), except with the approval of the consolidated GSA list in order to the vice president, Supply Manage- exclude suppliers debarred or sus- ment, or designee. pended by the Postal Service from per- (e) Causes for debarment—(1) The vice forming any part of a Postal Service president, Supply Management, with contract. the concurrence of the General Coun- (3) Suppliers on the GSA list are as- sel, may debar a supplier, including its signed a code by GSA which is related affiliates, for cause such as the fol- to the basis of ineligibility. The vice president, Supply Management main- lowing: tains a table describing the Postal (i) Conviction of a criminal offense Service treatment assigned to each incidental to obtaining or attempting code. Suppliers on the GSA list who are to obtain contracts or subcontracts, or coded as ineligible are excluded from in the performance of a contract or receiving contracts and subcontracts, subcontract. and contracting officers may not so- (ii) Conviction under a Federal anti- licit proposals or quotations from, trust statute arising out of the submis- award contracts to, or, when the con- sion of bids or proposals. tract provides for such consent, con- (iii) Commission of embezzlement, sent to subcontracts with such sup- theft, forgery, bribery, falsification or pliers, unless the vice president, Sup- destruction of records, making false ply Management, or designee, after statements, tax evasion, or receiving consultation with the General Counsel, stolen property. has approved such action. Suppliers on (iv) Violation of a Postal Service the GSA list may not provide goods or contract so serious as to justify debar- services to other persons or entities for ment, such as willful failure to perform resale, in whole or part, to the Postal a Postal Service contract in accord- Service, and such other persons or enti- ance with the specifications or within ties are obligated to review the consolidated GSA list in order to exclude the time limit(s) provided in the con- debarred or suspended suppliers from tract; a record of failure to perform or performing any part of a Postal Service of unsatisfactory performance in ac- contract. cordance with the terms of one or more (4) Suppliers on the GSA list are as- Postal Service contracts occurring signed codes for which the table pro- within a reasonable period of time pre- vides other Postal Service guidance, ceding the determination to debar (ex- and are considered according to that cept that failure to perform or unsatis- guidance. When so indicated on the factory performance caused by acts be- table, contracting officers must obtain yond the control of the supplier may additional information from the entity not be considered a basis for debar- responsible for establishing the sup- ment); violation of a contractual provi- plier’s ineligibility, if such information sion against contingent fees; or accept- is available. ance of a contingent fee paid in viola- (5) The debarment, suspension, or in- tion of a contractual provision against eligibility of a supplier does not, of contingent fees. itself, affect the rights and obligations (v) Any other offense indicating a of the parties to any valid, pre-existing lack of business integrity or business contract. The Postal Service may ter- honesty. minate for default a contract with a (vi) Any other cause of a serious and supplier that is debarred, suspended, or determined to be ineligible. Con- compelling nature that debarment is tracting officers may not add new work warranted. to any contract with a supplier that is (2) The existence of a conviction in debarred, suspended, or determined to paragraph (e)(1)(i) or (ii) of this section be ineligible by supplemental agree-

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can be established by proof of a convic- (ii) Whether the supplier brought the tion in a court of competent jurisdic- activity cited as a cause for debarment tion. If appeal taken from such convic- to the attention of the Postal Service tion results in a reversal of the convic- in a prompt, timely manner. tion, the debarment may be removed (iii) Whether the supplier promptly upon the request of the supplier, unless and fully investigated the cir- another cause or another basis for de- cumstances involving debarment and, barment exists. if so, made the full results of the inves- (3) The existence of any of the other tigation available to appropriate offi- causes in paragraphs (e)(1)(iii), (iv),(v), cials of the Postal Service. or (vi) of this section can be estab- (iv) Whether the supplier cooperated lished by a preponderance of the evi- fully with the Postal Service during its dence, either direct or indirect, in the investigation into the matter. judgment of the vice president of Sup- (v) Whether the supplier paid or ply Management. agreed to pay all criminal, civil, and (4) The criminal, fraudulent, or im- administrative liability and other costs proper conduct of an individual may be arising out of the improper activity, imputed to the firm with which he or including any investigative or adminis- she is or has been connected when an trative costs incurred by the Postal impropriety was committed. Likewise, Service, and made or agreed to make when a firm is involved in criminal, full restitution. fraudulent, or other improper conduct, (vi) Whether the supplier took appro- any person who participated in, knew priate disciplinary action against the of, or had reason to know of the impro- individual(s) responsible for the activ- priety may be debarred. ity that could cause debarment. (5) The fraudulent, criminal, or other (vii) Whether the supplier imple- improper conduct of one supplier par- mented and/or agreed to implement re- ticipating in a joint venture or similar medial measures, including those iden- arrangement may be imputed to other tified by the Postal Service. participating suppliers if the conduct (viii) Whether the supplier instituted occurred for or on behalf of the joint and/or agreed to institute new and/or venture or similar arrangement, or revised review and control procedures with the knowledge, approval, or acqui- and ethics programs. escence of the supplier. Acceptance of (ix) Whether the supplier had ade- the benefits derived from the conduct quate time to eliminate circumstances will be evidence of such knowledge, ap- within the supplier’s organization that proval, or acquiescence. could lead to debarment. (f) Mitigating factors—(1) The exist- (x) Whether the supplier’s senior offi- ence of any cause for debarment does cers and mid-level management recog- not necessarily require that a supplier nize and understand the seriousness of be debarred. The decision to debar is the misconduct giving rise to debar- within the discretion of the vice presi- ment. dent, Supply Management, with the (2) The existence or nonexistence of concurrence of the General Counsel, mitigating factors or remedial meas- and must be made in the best interest ures such as those above is not deter- of the Postal Service. The following minative whether or not a supplier factors may be assessed in determining should be debarred. If a cause for de- the seriousness of the offense, failure, barment exists, the supplier has the or inadequacy of performance, and may burden of demonstrating, to the satis- be taken into account in deciding faction of the vice president, Supply whether debarment is warranted: Management that debarment is not (i) Whether the supplier had estab- warranted or necessary. lished written standards of conduct and (g) Period of debarment—(1) When an had published internal control systems applicable statute, executive order, or at the time of the activity that con- controlling regulation of other agen- stitutes cause for debarment or had cies provides a specific period of debar- adopted such procedures prior to any ment, that period applies. In other Postal Service investigation of the ac- cases, debarment by the Postal Service tivity cited as a cause for debarment. should be for a reasonable, definite,

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stated period of time, commensurate position to the proposed debarment to with the seriousness of the offense or the vice president, Supply Management the failure or inadequacy of perform- within the time allowed, the debar- ance. Generally, a period of debarment ment will become final with no further should not exceed three years. When review or appeal. debarment for an additional period is (2) If the proposed debarment is based deemed necessary, notice of the pro- on a conviction or civil judgment, the posed additional period of debarment vice president, Supply Management, must be furnished to the supplier as in with the concurrence of the General the case of original debarment. Counsel, may decide whether debar- (2) Except as precluded by an applica- ment is merited based on the convic- ble statute, executive order, or control- tion or judgment, including any infor- ling regulation of another agency, de- mation received from the supplier. If barment may be removed or the period the debarment is based on other cir- may be reduced by the vice president, cumstances or if there are questions re- Supply Management when requested by the debarred supplier and when the regarding material facts, the vice presi- quest is supported by a reasonable jus- dent, Supply Management may seek tification, such as newly discovered additional information from the sup- material evidence, reversal of a convic- plier and/or other persons, and may re- tion, bona fide change of ownership or quest the Judicial Officer to hold a management, or the elimination of the fact-finding hearing on such matters. causes for which debarment was im- The hearing will be governed by rules posed. The vice president, Supply Man- of procedure promulgated by the Judi- agement may, at his or her discretion, cial Officer. The vice president, Supply deny any request or refer it to the Ju- Management may reject any findings dicial Officer for a hearing and for find- of fact, in whole or in part, when they ings of fact, which the vice president, are clearly erroneous. Supply Management will consider when (3) When the vice president, Supply deciding the matter. When a debarment Management proposes to debar a sup- is removed or the debarment period is plier already debarred by another gov- reduced, the vice president, Supply ernment agency for a period concur- Management must state in writing the rent with such debarment, the debar- reason(s) for the removal of the debarment proceedings before the Postal ment or the reduction of the period of Service may be based entirely upon the debarment. record of evidence, facts, and pro- (h) Procedural requirements for debar- ceedings before the other agency, upon ment—(1) After securing the concur- any additional facts the Postal Service rence of the General Counsel, the vice deems relevant, or on the decision of president, Supply Management will ini- another government agency. In such tiate a debarment proceeding by send- cases, the findings of facts by another ing the supplier a written notice of pro- government agency may be considered posed debarment. The notice will be as established, but, within thirty days served by sending it to the last known of the notice of proposed debarment, address of the supplier by Certified the supplier may submit, in person or Mail, return receipt requested. A copy of the notice will be furnished to the in writing, or through a representative, Office of Inspector General. The notice any additional facts, information, or will state that debarment is being con- argument to the vice president, Supply sidered; the reason(s) for the proposed Management, and to explain why de- debarment; the anticipated period of barment by the Postal Service should debarment and the proposed effective not be imposed. date; and that, within thirty days of (4) Questions of fact to be resolved by the notice, the supplier may submit, in a hearing before the Judicial Officer person or in writing, or through a rep- will be based on the preponderance of resentative, information and argument the evidence. in opposition to the proposed debar- (5) After consideration of the cir- ment. In the event a supplier does not cumstances and any information and submit information or argument in op- argument submitted by the supplier,

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the vice president, Supply Manage- the effective date of the suspension or ment, with the concurrence of the Gen- extension. A copy of the notice will be eral Counsel, will issue a written deci- furnished to the Office of the Inspector sion regarding whether the supplier is General. debarred, and, if so, for the period of (2) The notice will state the cause(s) debarment. The decision will be mailed for the suspension or extension. to the supplier by Certified Mail, re- (3) Within thirty days of notice of turn receipt requested. A copy of the suspension or an extension, a supplier decision will be furnished to the Office may submit to the vice president, Sup- of the Inspector General. The decision ply Management, in writing, any infor- will be final and binding, unless the de- mation or reason(s) the supplier be- cision was procured by fraud or other lieves makes a suspension or an exten- criminal misconduct, or the decision sion inappropriate, and the vice presi- was obtained in violation of the regula- dent, Supply Management, in consulta- tions contained in this part or an appli- tion with the General Counsel, will cable public law enacted by Congress. consider the supplier’s submission, and, (i) Causes for suspension. The vice in their discretion, may revoke a sus- president, Supply Management, may pension or an extension of a suspen- suspend any supplier, including any of sion. If a suspension or extension is re- its affiliates: voked, the revocation will be in writing (1) If the supplier commits, is in- and a copy of the revocation will be dicted for, or is convicted of fraud or a sent to the supplier by Certified Mail, criminal offense incidental to obtain- return receipt requested. A copy of the ing, attempting to obtain, or per- revocation will be furnished to the Of- forming a government contract, vio- fice of the Inspector General. lates a Federal antitrust statute arising out of the submission of bids and PART 602—INTELLECTUAL PROPERTY proposals, or commits or engages in RIGHTS OTHER THAN PATENTS embezzlement, theft, forgery, bribery, falsification or destruction of records, Sec. or receipt of stolen property, or any 602.1 General principles. other offense indicating a lack of busi- 602.2 Office of Licensing, Philatelic and Re- ness integrity or business honesty; tail Services Department. (2) For any other cause of such seri- 602.3 Requests for use. ous and compelling nature that suspen- AUTHORITY: 39 U.S.C. 401(5). sion is warranted; or (3) If the Postal Service has notified SOURCE: 43 FR 42250, Sept. 20, 1978, unless a supplier of its proposed debarment otherwise noted. under this Part. (j) Period of suspension. A suspension § 602.1 General principles. will not exceed one year in duration, It is the policy of the Postal Service except a suspension may be extended to secure full ownership rights for its for reasonable periods of time beyond intellectual properties other than pat- one year by the vice president, Supply ents (hereinafter, intellectual prop- Management. The termination of a sus- erties) having significant economic or pension will not prejudice the Postal other business value, except when to do Service’s position in any debarment so would be contrary to the best inter- proceeding. A suspension will be super- est of the Postal Service. Intellectual seded by a decision rendered by the property rights shall be acquired and vice president, Supply Management, managed so as to: under paragraph (h)(5) of this section. (a) Promote the economic, oper- (k) Procedural requirements for suspen- ational, and competitive well-being of sion—(1) The vice president, Supply the Postal Service; Management will notify a supplier of a (b) Limit restrictions on the use of suspension or an extension of a suspen- Postal Service intellectual property to sion and the reason(s) for the suspen- a minimum consistent with its statu- sion or extension in writing sent to the tory obligations; supplier by Certified Mail, return re- (c) Assure that all potential users are ceipt requested, within ten days after treated fairly;

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(d) Give due regard to other relevant ice marks, copyright materials and in- considerations. tellectual property other than patents and technical data rights in Postal § 602.2 Office of Licensing, Philatelic Service contracts must be sent to: Of- and Retail Services Department. fice of Licensing, Philatelic and Retail In accordance with the foregoing pol- Services Department, US Postal Serv- icy, the Postal Service Office of Licens- ice, 475 L’Enfant Plaza SW., Wash- ing, Philatelic and Retail Services De- ington, DC 20260–6700. partment, formulates the program for (b) Requests for the use of intellec- the management of the Postal Serv- tual property should be submitted on ice’s rights in intellectual property the form provided by the Office of Li- (except patents and technical data censing to the licensing advisor des- rights in Postal Service contracts, ignated by that Office. Each request is which is the responsibility of Postal considered in a timely fashion in ac- Service contracting officers). The Of- cordance with the policy established in fice of Licensing and the contracting this section. Requests favorably con- officers identify intellectual properties sidered are forwarded to the Office of in which the Postal Service should se- Licensing for approval. cure its rights. It receives and makes (c) Approved requests contemplating recommendations for the disposition of a permissive (no fee) use of the intel- applications for use of Postal Service lectual property are evidenced by a let- intellectual property. It periodically ter of permission furnished to the re- reviews the intellectual property rights quester. portfolio to determine the extent of the utilization of protected properties and (d) Approved requests contemplating to recommend relinquishment of own- a contractual (fee) use of the intellec- ership when it considers ownership no tual property are forwarded to the Of- longer desirable. It is advised by the fice of Licensing for the negotiation of Office of Procurement of performance a satisfactory license agreement. under license agreements and makes (e) Each license agreement is subject recommendations for corrective meas- to legal review. ures when necessary. In consultation (f) Requesters are promptly advised with the Law Department, it rec- of unapproved requests. ommends appropriate action against A transmittal letter effecting the unauthorized use of intellectual prop- above changes to the Domestic Mail erty. Manual will be published and transmitted automatically to subscribers. [56 FR 58859, Nov. 22, 1991] Notice of issuance of the transmittal § 602.3 Requests for use. letter will be published in the FEDERAL REGISTER as provided by 39 CFR 111.3. (a) Inquiries concerning licenses to use Postal Service trademarks or serv- [56 FR 58859, Nov. 22, 1991]

SUBCHAPTER I [RESERVED]

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PART 760—APPLICABILITY OF ties in book-entry form) as fiscal agent TREASURY DEPARTMENT REGULA- of the United States acting on behalf of TIONS the Postal Service and when indicated acting in its individual capacity. § 760.1 Treasury Department regula- (b) Postal Service security means any tions; applicability to Postal Serv- obligation of the Postal Service issued ice. under 39 U.S.C. 2005, in the form of a The provisions of Treasury Depart- definitive Postal Service security or a ment Circular No. 300, 31 CFR part 306 book-entry Postal Service security. (other than subpart O), as amended (c) Definitive Postal Service security from time to time, shall apply insofar means a Postal Service security in en- as appropriate to obligations of the graved or printed form. U.S. Postal Service to the extent they (d) Book-entry Postal Service security are consistent with the Trust Inden- means a Postal Service security in the ture of the Postal Service and the form of an entry made as prescribed in agreement between the Postal Service these regulations on the records of a and the Federal Reserve Bank of New Reserve Bank. York acting as Fiscal Agent of the (e) Pledge includes a pledge of, or any United States on behalf of the Postal other security interest in, Postal Serv- Service. Definitions and terms used in ice securities as collateral for loans or Treasury Department Circular 300 advances or to secure deposits of public should be read as though modified to moneys or the performance of an obli- effectuate the application of the regu- gation. lations to the U.S. Postal Service. (f) Date of call is the date fixed in the (39 U.S.C. Secs. 401, 402, 2005) authorizing resolution of the Board of [37 FR 211, Jan. 7, 1972] Governors of the Postal Service on which the obligor will make payment of the security before maturity in ac- PART 761—BOOK-ENTRY cordance with its terms. PROCEDURES (g) Member bank means any national bank, State bank, or bank or trust Sec. 761.1 Definition of terms. company which is a member of a Re- 761.2 Authority of Reserve Banks. serve bank. 761.3 Scope and effect of book-entry procedure. § 761.2 Authority of Reserve Banks. 761.4 Transfer or pledge. 761.5 Withdrawal of Postal Service securi- Each Reserve Bank is hereby author- ties. ized, in accordance with the provisions 761.6 Delivery of Postal Service securities. of this part, to (a) issue book-entry 761.7 Registered bonds and notes. Postal Service securities by means of 761.8 Servicing book-entry Postal Service entries on its records which shall in- securities; payment of interest, payment clude the name of the depositor, the at maturity or upon call. amount, the loan title (or series) and AUTHORITY: 39 U.S.C. 401, 402, 2005. maturity date; (b) effect conversions SOURCE: 37 FR 16801, Aug. 19, 1972, unless between book-entry Postal Service se- otherwise noted. curities and definitive Postal Service securities; (c) otherwise service and § 761.1 Definition of terms. maintain book-entry Postal Service se- In this part, unless the context oth- curities; and (d) issue a confirmation of erwise requires or indicates: transaction in the form of a written ad- (a) Reserve Bank means the Federal vice (serially numbered or otherwise) Reserve Bank of New York (and any which specifies the amount and de- other Federal Reserve Bank which scription of any securities; that is, loan agrees to issue Postal Service securi- title (or series) and maturity date, sold

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or transferred, and the date of the both as revised and amended, and may transaction. apply the book-entry procedure, with the approval of the Secretary of the § 761.3 Scope and effect of book-entry Treasury, to any other Postal Service procedure. securities deposited with a Reserve (a) A Reserve Bank as fiscal agent of Bank as fiscal agent of the United the United States acting on behalf of States. the Postal Service may apply the book- (c) Any person having an interest in entry procedure provided for in this Postal Service securities which are depart to any Postal Service securities posited with a Reserve Bank (in either which have been or are hereafter deposits individual capacity or as fiscal ited for any purpose in accounts with it agent of the United States) for any in its individual capacity under terms purpose shall be deemed to have con- and conditions which indicate that the sented to their conversion to book- Reserve Bank will continue to main- entry Postal Service securities pursu- tain such deposit accounts in its indi- ant to the provisions of this part, and vidual capacity, notwithstanding appli- in the manner and under the proce- cation of the book-entry procedure to dures prescribed by the Reserve Bank. such securities. This paragraph is ap- (d) No deposits shall be accepted plicable, but not limited, to securities under this section on or after the date deposited: of maturity or call of the securities. (1) As collateral pledged to a Reserve Bank (in its individual capacity) for § 761.4 Transfer or pledge. advances by it; (a) A transfer or pledge of book-entry (2) By a member bank for its sole ac- Postal Service securities to a Reserve count; bank (in its individual capacity or as (3) By a member bank held for the ac- fiscal agent of the United States) or to count of its customers; the United States, or to any transferee (4) In connection with deposits in a or pledgee eligible to maintain an ap- member bank of funds of States, mu- propriate book-entry account in its nicipalities, or other political subdivi- name with a Reserve bank under this sions; or, part, is effected and perfected, notwith- (5) In connection with the perform- standing any provision of law to the ance of an obligation or duty under contrary, by a Reserve bank making an Federal, State, municipal, or local law, appropriate entry in its records of the or judgments or decrees of courts. securities transferred or pledged. The The application of the book-entry pro- making of such an entry in the records cedure under this paragraph shall not of a Reserve bank shall (1) have the ef- derogate from or adversely affect the fect of a delivery in bearer form of de- relationships that would otherwise finitive Postal Service securities; (2) exist between a Reserve Bank in its in- have the effect of a taking of delivery dividual capacity and its depositors by the transferee or pledgee; (3) con- concerning any deposits under this stitute the transferee or pledgee a paragraph. Whenever the book-entry holder; and (4) if a pledge, effect a per- procedure is applied to such Postal fected security interest therein in Service securities, the Reserve Bank is favor of the pledgee. A transfer or authorized to take all action necessary pledge of book-entry Postal Service se- in respect of the book-entry procedure curities effected under this paragraph to enable such Reserve Bank in its in- shall have priority over any transfer, dividual capacity to perform its obliga- pledge, or other interest, theretofore or tions as depository with respect to thereafter effected or perfected under such Postal Service securities. paragraph (b) of this section or in any (b) A Reserve Bank as fiscal agent of other manner. the United States acting on behalf of (b) A transfer or a pledge of transfer- the Postal Service may apply the book- able Postal Service securities, or any entry procedure to Postal Service secu- interest therein, which is maintained rities deposited as collateral pledged to by a Reserve bank (in its individual ca- the United States under Treasury De- pacity or as fiscal agent of the United partment Circulars Nos. 92 and 176, States) in a book-entry account under

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this part, including securities in book- (c) No filing or recording with a pub- entry form under § 761.3(a)(3), is ef- lic recording office or officer shall be fected, and a pledge is perfected, by necessary or effective with respect to any means that would be effective any transfer or pledge of book-entry under applicable law to effect a trans- Postal Service securities or any inter- fer or to effect and perfect a pledge of est therein. the Postal Service securities, or any (d) A Reserve Bank shall, upon re- interest therein, if the securities were ceipt of appropriate instructions, con- maintained by the Reserve bank in vert book-entry Postal Service securi- bearer definitive form. For purposes of ties into definitive Postal Service secu- transfer or pledge hereunder, book- rities and deliver them in accordance entry Postal Service securities main- with such instructions; no such conver- tained by a Reserve bank shall, not- sion shall effect existing interests in withstanding any provision of law to such Postal Service securities. the contrary, be deemed to be main- (e) A transfer of book-entry Postal tained in bearer definitive form. A Re- Service securities within a Reserve serve bank maintaining book-entry Bank shall be made in accordance with Postal Service securities either in its procedures established by the Bank not individual capacity or as fiscal agent of inconsistent with this part. the United States is not a bailee for (f) All requests for transfer or with- purposes of notification of pledges of drawal must be made prior to the ma- those securities under this paragraph, turity or date of call of the securities. or a third person in possession for pur- [37 FR 16801, Aug. 19, 1972, as amended at 38 poses of acknowledgment of transfers FR 12919, May 17, 1973] thereof under this paragraph. Where transferable Postal Service securities § 761.5 Withdrawal of Postal Service are recorded on the books of a deposi- securities. tary (a bank, banking institution, fi- (a) A depositor of book-entry Postal nancial firm, or similar party, which Service securities may withdraw them regularly accepts in the course of its from a Reserve Bank by requesting de- business Postal Service securities as a livery of like definitive Postal Service custodial service for customers, and securities to itself or on its order to a maintains accounts in the names of transferee. such customers reflecting ownership of (b) Postal Service securities which or interest in such securities) for ac- are actually to be delivered upon with- count of the pledgor or transferor drawal may be issued either in reg- thereof and such securities are on de- istered or in bearer form. posit with a Reserve bank in a book- entry account hereunder, such deposi- § 761.6 Delivery of Postal Service secu- tary shall, for purposes of perfecting a rities. pledge of such securities or effecting A Reserve Bank which has received delivery of such securities to a pur- Postal Service securities and effected chaser under applicable provisions of pledges, made entries regarding them, law, be the bailee to which notification or transferred or delivered them ac- of the pledge of the securities may be cording to the instructions of its de- given or the third person in possession positor is not liable for conversion or from which acknowledgment of the for participation in breach of fiduciary holding of the securities for the pur- duty even though the depositor had no chaser may be obtained. A Reserve right to dispose of or take other action bank will not accept notice or advice of in respect of the securities. A Reserve a transfer or pledge effected or per- Bank shall be fully discharged of its fected under this paragraph, and any obligations under this part by the de- such notice or advice shall have no ef- livery of Postal Service securities in fect. A Reserve bank may continue to definitive form to its depositor or upon deal with its depositor in accordance the order of such depositor. Customers with the provisions of this part, not- of a member bank or other depositary withstanding any transfer or pledge ef- (other than a Reserve Bank) may ob- fected or perfected under this para- tain Postal Service securities in defini- graph. tive form only by causing the depositor

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of the Reserve Bank to order the with- 762.15 Postal Service payments not made by drawal thereof from the Reserve Bank. disbursement postal money order.

§ 761.7 Registered bonds and notes. Subpart B—Endorsements, Payment, Guar- anties, Warranties and Processing of No formal assignment shall be re- Disbursement Postal Money Orders quired for the conversion to book-entry Postal Service securities of registered 762.21 Scope. Postal Service securities held by a Re- 762.22 Definitions. 762.23 General rules. serve Bank (in either its individual ca- 762.24 Guaranty of endorsements. pacity or as fiscal agent of the United 762.25 Reclamation of amounts of paid dis- States) on the effective date of this bursement postal money orders. part for any purpose specified in 762.26 Postal facilities not to cash disburse- § 761.3(a). Registered Postal Service se- ment postal money orders. curities deposited thereafter with a Re- 762.27 Processing of disbursement postal serve Bank for any purpose specified in money orders by Federal Reserve Banks. 762.28 Release of original disbursement § 761.3 shall be assigned for conversion postal money orders. to book-entry Postal Service securi- 762.29 Endorsement of disbursement postal ties. The assignment, which shall be money orders by payees. executed in accordance with the provi- 762.30 Disbursement postal money orders sions of part 760 of this subchapter and issued to incompetent payees. subpart F of 31 CFR part 306, so far as 762.31 Disbursement postal money orders issued to deceased payees. applicable, shall be to ‘‘Federal Reserve Bank of llllll as fiscal agent of Subpart C—Issuance of Substitutes for Lost, the United States acting on behalf of Destroyed, Mutilated, and Defaced the Postal Service for conversion to Disbursement Postal Money Orders book-entry Postal Service securities.’’ 762.41 Advice of non-receipt or loss, destruc- § 761.8 Servicing book-entry Postal tion, or mutilation. Service securities; payment of inter- 762.42 Request for substitute disbursement est, payment at maturity or upon postal money orders; requirements for undertaking of indemnity. call. 762.43 Issuance of substitute disbursement Interest becoming due on book-entry postal money order. Postal Service securities shall be 762.44 Receipt or recovery of original discharged in the Postal Service Fund on bursement postal money order. 762.45 Removal of stoppage of payment. the interest due date and remitted or credited in accordance with the deposi- AUTHORITY: 39 U.S.C. 401(2), 401(3), 401(4), tor’s instructions. Such securities shall 401(10), and 404(6). be redeemed and charged in the Postal SOURCE: 40 FR 52371, Nov. 10, 1975, unless Service Fund on the date of maturity, otherwise noted. call or advance refunding, and the re- demption proceeds, principal and inter- Subpart A—General, Definitions, est, shall be disposed of in accordance Issuance with the depositor’s instructions. § 762.11 General. PART 762—DISBURSEMENT POSTAL The Postal Service, at its discretion, MONEY ORDERS issues a specialized postal money order, designated a Disbursement Postal Money Order in payment of Postal Subpart A—General, Definitions, Issuance Service obligations. Disbursement Sec. Postal Money Orders are distinguish- 762.11 General. able on their face from other postal 762.12 Definitions. money orders in the following ways: 762.13 Issuance. (a) Disbursement Postal Money Or- 762.14 Amounts for which disbursement ders have words of negotiability—‘‘Pay postal money orders may be issued. to the order of’’—printed on their face, while other postal money orders simply bear the words ‘‘Pay to’’ on their face; 201

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(b) Disbursement Postal Money Or- priate to pay Postal Service Obliga- ders, unlike other postal money orders, tions. There is no maximum amount bear on their face the phrase, ‘‘This spe- above which a Disbursement Postal cial money order is drawn by the Post- Money Order may not be issued. al Service to pay one of its own obligations.’’; and § 762.15 Postal Service payments not (c) The amounts of Disbursement made by disbursement postal Postal Money Orders are printed in money order. words as well as numbers, while the Postal Service payments not made by amounts of postal money orders avail- Disbursement Postal Money Order are able at post offices are printed in num- made by cash, U.S. Treasury Check, or bers only. by regular postal money order, and may be made by electronic funds trans- § 762.12 Definitions. fer. As used in part 762 of this chapter, the term: Subpart B—Endorsements, Pay- (a) Disbursement Postal Money Order ment, Guaranties, Warranties means a money order (described in and Processing of Disburse- Part 762) issued by the Postal Service ment Postal Money Orders to pay one of its own obligations. (b) Federal Reserve Bank means a Fed- § 762.21 Scope. eral Reserve Bank or branch thereof. (c) Financial organization means any The regulations in this subpart pre- bank, savings bank, savings and loan scribe the requirements for endorse- association or similar institution, or ment and the conditions for payment Federal or State chartered credit of Disbursement Postal Money Orders union. drawn by the Postal Service. (d) Person or persons means an indi- § 762.22 Definitions. vidual or individuals, or an organization or organizations, whether incor- For definitions applicable to this sub- porated or not, including all forms of part see § 762.12 of this chapter. banking institutions. (e) Presenting Bank means a bank or § 762.23 General rules. other depositor of a Federal Reserve All Disbursement Postal Money Or- Bank which presents Disbursement ders drawn by the Postal Service are Postal Money Orders to and receives payable without limitation of time. credit therefor from a Federal Reserve The Postal Service shall have the usual Bank. right of a drawee to examine Disburse- (f) Reclamation means the action ment Postal Money Orders presented taken by the Postal Service to obtain for payment and refuse payment of any refund of the amounts of paid Disburse- Disbursement Postal Money Orders, ment Postal Money Orders. and shall have a reasonable time to (g) Postal Service means the U.S. make such examination. Disbursement Postal Service. Postal Money Orders shall be deemed to be paid by the Postal Service only § 762.13 Issuance. after first examination has been fully Disbursement Postal Money Orders completed. If the Postal Service is on are issued solely by Postal Data Cen- notice of a doubtful question of law or ters and solely for the purpose of pay- fact when a Disbursement Postal ing Postal Service obligations. Accord- Money Order is presented for payment, ingly, Disbursement Postal Money Or- payment will be deferred pending set- ders may be issued in lieu of U.S. tlement by the Postal Service. Treasury checks. § 762.24 Guaranty of endorsements. § 762.14 Amounts for which disburse- The presenting bank and the endors- ment postal money orders may be ers of a Disbursement Postal Money issued. Order presented to the Postal Service Disbursement Postal Money Orders for payment shall be deemed to guar- may be issued for any amount appro- antee to the Postal Service that all

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prior endorsements are genuine, wheth- bursement Postal Money Orders as fol- er or not an express guaranty is placed lows: on the Disbursement Postal Money (a) Federal Reserve Banks shall not Order. When the first endorsement has be expected to cash Disbursement Post- been made by one other than the payee al Money Orders presented directly to personally, the presenting bank and them for payment; and the endorsers shall be deemed to guar- (b) Each Federal Reserve Bank shall: antee to the Postal Service, in addition (1) Receive Disbursement Postal to other warranties, that the person Money Orders from its member banks, who so endorsed had unqualified capac- and its other depositors which guar- ity and authority to endorse the Dis- antee all prior endorsements thereon; bursement Postal Money Order on be- (2) Give immediate credit therefor in half of the payee. accordance with its current Time Schedules and charge the amount § 762.25 Reclamation of amounts of thereof to the general account of the paid disbursement postal money or- U.S. Treasury, subject to examination ders. and payment by the Postal Service; The Postal Service shall have the and right to demand refund from the pre- (3) Forward the Disbursement Postal senting bank of the amount of a paid Money Orders to the Postal Service. Disbursement Postal Money Order if § 762.28 Release of original disburse- after payment the Disbursement Postal ment postal money orders. Money Order is found to bear a forged or unauthorized endorsement, or an en- An original Disbursement Postal dorsement by another for a deceased Money Order may be released to a re- payee where the right to the proceeds sponsible endorser only upon receipt of of such Disbursement Postal Money Or- a properly authorized request showing ders terminated upon the death of the the reason it is required. payee, or to contain any other material § 762.29 Endorsement of disbursement defect or alteration which was not dis- postal money orders by payees. covered upon first examination. If refund is not made, the Postal Service (a) General requirements. Disburse- shall take such action against the ment Postal Money Orders shall be en- proper parties as may be necessary to dorsed by the payee or the payees protect its interests. named, or by another on behalf of such payee or payees as set forth in this sub- § 762.26 Postal facilities not to cash part B. The forms of endorsement shall disbursement postal money orders. conform to those recognized by general principles of law and commercial usage Post offices and other postal facili- for the negotiation, transfer, or collec- ties shall not be expected to cash Dis- tion of negotiable instruments. bursement Postal Money Orders or to (b) Endorsement of disbursement postal return cash for endorsed Disbursement money orders by a financial organization Postal Money Orders offered in pay- under the payee’s authorization. When a ment for postal service in amounts less Disbursement Postal Money Order is than the value of a Disbursement Post- credited by a financial organization to al Money Order. However, properly en- the payee’s account under his author- dorsed Disbursement Postal Money Or- ization, the financial organization may ders may be accepted as total or par- use an endorsement substantially as tial payment for postal services. follows: § 762.27 Processing of disbursement Credit to the account of the within-named postal money orders by Federal Re- payee in accordance with payee’s or payees’ serve Banks. instructions. Absence of endorsement guaranteed. In accordance with an agreement between the Postal Service and the Fed- A financial organization using this eral Reserve Banks as depositaries and form of endorsement shall be deemed fiscal agents of the United States, Fed- to guarantee to all subsequent endors- eral Reserve Banks will handle Dis- ers and to the Postal Service that it is

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acting as an attorney in fact for the Subpart C—Issuance of Substitutes payee or payees, under his or their au- for Lost, Destroyed, Mutilated, thorization. and Defaced Disbursement (c) Endorsement of disbursement postal Postal Money Orders money orders drawn in favor of financial organizations. All Disbursement Postal § 762.41 Advice of non-receipt or loss, Money Orders drawn in favor of finan- destruction, or mutilation. cial organizations, for credit to the ac- (a) In the event of the non-receipt, counts of persons designating payment loss, or destruction of a Disbursement so to be made, shall be endorsed in the Postal Money Order, or the mutilation name of the financial organization as or defacement of a Disbursement Post- payee in the usual manner. al Money Order to an extent which renders it non-negotiable, the owner § 762.30 Disbursement postal money should immediately contact the Money orders issued to incompetent pay- Order Division, Postal Data Center, ees. P.O. Box 14963, St. Louis, MO 63182, de- (a) If the Disbursement Postal Money scribing the Disbursement Postal Order is endorsed by a legal guardian Money Order, stating the purpose for or other fiduciary and presented for which it was issued, giving, if possible, payment by a bank it will be paid by its date, number, and amount, and re- the Postal Service without submission questing that payment be stopped. In to the Postal Service of documentary cases involving mutilated or defaced proof of authority of the guardian or Disbursement Postal Money Orders the other fiduciary. owner should enclose the mutilated or (b) If a guardian has not been or will defaced item with his communication. not be appointed, the Disbursement (b) If the Disbursement Postal Money Postal Money Order shall be forwarded Order, which is the basis of the owner’s to the Money Order Division, Postal claim, is determined to be outstanding, Data Center, P.O. Box 14963, St. Louis, the Money Order Division shall furnish MO 63182, with a full explanation of the the claimant an appropriate application form for obtaining a substitute circumstances. Disbursement Postal Money Order. § 762.31 Disbursement postal money However, the execution of an applica- orders issued to deceased payees. tion shall not be required in the event the original written statement sub- (a) If the Disbursement Postal Money mitted by the claimant substantially Order is endorsed by an Executor or meets the requirements of the pre- Administrator and presented for pay- scribed application form. ment by a bank it will be paid by the Postal Service without submission to § 762.42 Request for substitute dis- the Postal Service of documentary bursement postal money orders; re- proof of the authority of the Executor quirements for undertaking of in- or Administrator. demnity. (b) If an Executor or Administrator In the case of a request for a sub- has not been appointed or if there is stitute Disbursement Postal Money doubt as to whether the proceeds of the Order: Disbursement Postal Money Order pass (a) An undertaking of indemnity in to the estate of the deceased payee, the penal sum equal to the amount of the instrument should be returned to the Disbursement Postal Money Order Money Order Division, Postal Data shall, unless otherwise provided in this Center, P.O. Box 14963, St. Louis, MO section, be executed by the claimant, 63182, for determination whether, under as may be required by the Postal Serv- ice, and submitted to the Money Order applicable laws, payment is due, and Division. for reissuance to the appropriate (b) Unless the Postal Service deter- payee. mines that an undertaking of indemnity is essential in the public interest, no undertaking of indemnity shall be

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required in the following classes of ing such information as may be nec- cases: essary to identify the original instru- (1) If the Postal Service is satisfied ment. that the loss, theft, destruction, mutilation or defacement occurred without § 762.44 Receipt or recovery of original fault of the owner or holder, and while disbursement postal money order. the Disbursement Postal Money Order (a) If the original Disbursement Post- was in the custody or control of the al Money Order is received or recovered Postal Service; by the owner after he has requested the (2) If substantially the entire Dis- Postal Service to stop payment on the bursement Postal Money Order is pre- original but before a substitute has sented and surrendered by the owner or been received, he should immediately holder and the Postal Service is satis- advise the Money Order Division and fied as to the identity of the Disburse- hold such original Disbursement Postal ment Postal Money Order presented Money Order until receipt of instruc- and that any missing portions are not tions with respect to its negotiability. sufficient to form the basis of a valid (b) If the original Disbursement Post- claim against the Postal Service; al Money Order is received by the (3) If the Postal Service is satisfied owner after a substitute has been re- that the original Disbursement Postal ceived by him, the original shall not be Money Order is not negotiable and can- cashed, but shall be immediately for- not be made the basis of a valid claim warded to the Money Order Division. against the Postal Service; or Under no circumstances shall both the (4) If the amount of the Disbursement original and substitute be cashed. Postal Money Order is not more than $200. § 762.45 Removal of stoppage of payment. § 762.43 Issuance of substitute dis- Requests for removal of stoppage of bursement postal money order. payment shall be addressed to the Upon approval of the undertaking of Money Order Division. No request for indemnity, application, or statement of removal of stoppage of payment shall claim, the Money Order Division shall be accepted after issuance of a sub- issue to the claimant a substitute Dis- stitute Disbursement Postal Money bursement Postal Money Order show- Order has been approved.

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PART 775—NATIONAL ENVIRON- (f) Use all practicable means to pro- MENTAL POLICY ACT PROCE- tect, restore, and enhance the quality DURES of the human environment. (g) Reduce paperwork. (h) Reduce delay. Sec. 775.1 Purpose. 775.2 Policy. § 775.3 Responsibilities. 775.3 Responsibilities. (a) The Chief Environmental Officer 775.4 Definitions. is responsible for overall development 775.5 Classes of actions. of policy regarding NEPA and other en- 775.6 Categorical exclusions. vironmental policies. The officer in 775.7 Planning and early coordination. 775.8 Environmental evaluation guidelines. charge of the facilities or real estate 775.9 Environmental evaluation process. organization is responsible for the de- 775.10 Environmental assessments. velopment of NEPA policy as it affects 775.11 Environmental impact statements. real estate or acquisition, construction 775.12 Time frames for environmental im- and disposal of postal facilities con- pact statement actions. sistent with overall NEPA policy. Each 775.13 Public notice and information. officer with responsibility over the pro- 775.14 Hearings. posed program, project, action, or fa- AUTHORITY: 39 U.S.C. 401; 42 U.S.C.4321 et cility is responsible for compliance seq.; 40 CFR 1500.4. with NEPA as the responsible official. SOURCE: 44 FR 63525, Nov. 5, 1979, unless (b) Postal managers will designate otherwise noted. environmental coordinators to assist with compliance with NEPA proce- § 775.1 Purpose. dures. These procedures implement the Na- [63 FR 45719, Aug. 27, 1998] tional Environmental Policy Act (NEPA) regulations (40 CFR part 1500) § 775.4 Definitions. issued by the Council on Environ- (a) The definitions set forth in 40 mental Quality (CEQ). CFR part 1508 apply to this part 775. [63 FR 45719, Aug. 27, 1998] (b) In addition to the terms defined in 40 CFR part 1508, the following defi- § 775.2 Policy. nitions apply to this part: It is the policy of the Postal Service Approving official means the person or to: group of persons, who authorizes fund- (a) Interpret and administer applica- ing as established through the delega- ble policies, regulations, and public tions of approval authority issued by laws of the United States in accordance the finance organization. That person with the policies set forth in the Na- or group of persons may not have pro- tional Environmental Policy Act, as posed the action for which financial ap- amended, and the NEPA Regulations. proval is sought. (b) Make the NEPA process useful to Environmental checklist means a Post- Postal Service decision makers and the al Service form that identifies poten- public. tial environmental impacts for pro- (c) Emphasize environmental issues posed actions initiated by postal man- and alternatives in the consideration of agers. proposed actions. Mitigated FONSI means a FONSI (d) Encourage and facilitate public which requires the implementation of involvement in decisions which affect specified mitigation measures in order the quality of the human environment. to ensure that there are no significant (e) Use the NEPA process to identify impacts to the environment. and assess reasonable alternatives to Record of environmental consideration proposed actions in order to avoid or means the Postal Service form that minimize adverse effects on the envi- identifies the Postal Service’s review ronment. of proposed activities under NEPA.

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Responsible official means the person, (11) Postal facility function changes or designated representative, who pro- involving new uses of greater environ- poses an action and is responsible for mental intensity; compliance with NEPA. For larger (12) Reduction in force involving projects, that person may not have the more than 1000 positions; financial authority to approve such ac- (13) Relocation of 300 or more em- tion. The responsible official signs the ployees more than 50 miles; NEPA documents (FONSI, ROD) and (14) Initiation of legislation. the REC. [63 FR 45719, Aug. 27, 1998] [63 FR 45719, Aug. 27, 1998]

§ 775.5 Classes of actions. § 775.6 Categorical exclusions. (a) Actions which normally require an (a) The classes of actions in this sec- environment impact statement. None, tion are those that the Postal Service however the Postal Service will pre- has determined do not individually or pare an EIS when necessary based on cumulatively have a significant impact the factors identified in 40 CFR 1508.27. on the human environment. To be cat- (b) Actions requiring an environmental egorically excluded, it must be deter- assessment. Classes of actions that will mined that a proposed action fits with- require an environmental assessment in a class listed and there are no ex- unless categorically excluded include: traordinary circumstances that may (1) Any project that includes the con- affect the significance of the proposal. version, purchase, or any other alter- The action must not be connected to ation of the fuel source for 25 percent other actions with potentially signifi- or more of USPS vehicles operating cant impacts or is not related to other with fuel other than diesel or gasoline proposed actions with potentially sig- in any carbon monoxide or ozone non- nificant impacts. Extraordinary cir- attainment area; cumstances are those unique situations (2) Any action that would adversely presented by specific proposals, such as affect a federally listed threatened or scientific controversy about the envi- endangered species or its habitat; ronmental impacts of the proposal, un- (3) Any action that would directly af- certain effects or effects involving fect public health; unique or unknown risks. (4) Any action that would require de- (b) Categorical exclusions relating to velopment within park lands, or be lo- general agency actions: cated in close proximity to a wild or (1) Policy development, planning and scenic river or other ecologically crit- implementation that relate to routine ical area; activities such as personnel, organiza- (5) Any action affecting the quality tional changes or similar administra- of the physical environment that would tive functions. be scientifically highly controversial; (6) Any action that may have highly (2) Routine actions, including the uncertain or unknown risks on the management of programs or activities human environment; necessary to support the normal con- (7) Any action that threatens a viola- duct of agency business, such as admin- tion of applicable federal, state, or istrative, financial, operational and local law or requirements imposed for personnel action that involve no com- the protection of the environment; mitment of resources other than man- (8) New construction of a facility power and funding allocations. with vehicle maintenance or fuel dis- (3) Award of contracts for technical pensing capabilities, whether owned or support services, management and op- leased; eration of a government owned facility, (9) Acquisition or lease of an existing and personal services. building involving new uses or a (4) Research activities and studies change in use to a greater environ- and routine data collection when such mental intensity; actions are clearly limited in context (10) Real property disposal involving and intensity. a known change in use to a greater en- (5) Educational and informational vironmental intensity; programs and activities.

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(6) Reduction in force resulting from ‘‘reference actions’’ shall be maintained workload adjustments, reduced per- by the Chief Environmental Officer or sonnel or funding levels, skill imbal- designee. The proposed action must be ances or other similar causes that do essentially the same in context and the not affect more than 1,000 positions. same or less in intensity or create (7) Postal rate or mail classification fewer impacts than the ‘‘reference ac- actions, address information system tion’’ previously studied under an EA or changes, post office name and zip code EIS in order to qualify for this exclu- changes. sion. (8) Property protection, law enforce- (18) Rulemakings that are strictly ment and other legal activities under- procedural, and interpretations and taken by the Postal Inspection Service, rulings with existing regulations, or the Law Department, the Judicial Offi- modifications or rescissions of such in- cer, and the Inspector General. terpretations and rulings. (9) Activities related to trade rep- (c) Categorical exclusions relating to resentation and market development emergency or restoration actions: activities abroad. (1) Any cleanup, remediation or re- (10) Emergency preparedness plan- moval action conducted under the pro- ning activities, including designation visions of the Comprehensive Environ- of on-site evacuation routes. mental Response Compensation and Li- (11) Minor reassignment of motor ve- ability Act (CERCLA) or the Resource hicles and purchase or deployment of Conservation and Recovery Act motor vehicles to new locations that (RCRA), any asbestos abatement ac- do not adversely impact traffic safety, tions regulated under the provisions of congestion or air quality. the Occupational Safety and Health (12) Procurement or disposal of mail Act (OSHA), or the Clean Air Act or handling or transport equipment. any PCB transformer replacement or (13) Acquisition, installation, oper- any lead based paint abatement actions ation, removal or disposal of commu- regulated under the provisions of the nication systems, computers and data Toxic Substances Control Act (TSCA), processing equipment. OSHA or RCRA. (14) Postal facility function changes (2) Testing associated with environ- not involving construction, where mental cleanups or site investigations. there are no substantial relocation of employees, or no substantial increase (d) Categorical exclusions relating to in the number of motor vehicles at a maintenance or repair actions at exist- facility. ing facilities: (15) Closure or consolidation of post (1) Siting, construction or operation offices under 39 U.S.C. 404(b). of temporary support buildings or sup- (16) Minor operational changes at an port structures. existing facility to minimize waste (2) Routine maintenance and minor generation and for reuse of materials. activities, such as fencing, that occur These changes include but are not lim- in floodplains or state and local wet- ited to, adding filtration and recycling lands or pursuant to the nationwide, systems to allow reuse of vehicle or regional or general permitting process machine oil, setting up sorting areas to of the US Army Corps of Engineers. improve process efficiency, and segre- (3) Routine actions normally con- gating waste streams previously min- ducted to protect and maintain prop- gled and assigning new identification erties and which do not alter the con- codes to the two resulting streams. figuration of the building. (17) Actions which have an insignifi- (4) Changes in configuration of build- cant effect upon the environment as es- ings required to promote handicapped tablished in a previously written Envi- accessibility pursuant to the Architec- ronmental Assessment (EA) and Find- tural Barriers Act. ing of No Significant Impact (FONSI) (5) Repair to, or replacement in kind or Environmental Impact Statement or equivalent of building equipment or (EIS). Such repetitive actions shall be components (e.g., electrical distribu- considered ‘‘reference actions’’ and a tion, HVAC systems, doors, windows, record of all decisions concerning these roofs, etc.).

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(6) Internal modifications or im- tion that the proposed action is cat- provements to structure, or buildings egorically excluded can be based upon to accommodate mail processing, com- previous ‘‘reference actions’’ docu- puter, communication or other similar mented under § 775.6(b)(17). types of equipment or other actions (9) Acquisition and disposal through which do not involve modification to sale, lease, transfer, reservation or ex- the external walls of the facility. change of real property for nature and (7) Joint development and/or joint habitat preservation, conservation, a use projects that only involve internal park or wildlife management. modifications to an existing facility. (10) New construction, Postal Service (8) Noise abatement measures, such owned or leased, or joint development as construction of noise barriers and and joint use projects, of any facility installation of noise control materials. unless the proposed action is listed as (9) Actions which require concur- requiring an EA in § 775.5. rence or approval of another federal (11) Expansion or improvement of an agency where the action is a categor- existing facility where the expansion is ical exclusion under the NEPA regula- within the boundaries of the site or oc- tions of that federal agency. curs in a previously developed area un- (e) Categorical exclusions relating to less the proposed action is listed as re- real estate actions. quiring an EA in § 775.5. (1) Obtaining, granting, disposing, or (12) Construction and disturbance changing of easements, licenses and pursuant to a nationwide, regional or permits, rights-of-way and similar in- general permit issued by the US Army terests. Corps of Engineers. (2) Extension, renewal, renegotiation, (13) Any activity in floodplains being or termination of existing lease agree- regulated pursuant to § 775.6 and is not ments. listed as requiring an EA in § 775.5. (3) Purchase of Postal Service occu- [63 FR 45720, Aug. 27, 1998] pied leased property where the planned postal uses do not differ significantly § 775.7 Planning and early coordina- from the past uses of the site. tion. (4) Acquisition or disposal of existing Early planning and coordination facilities and real property where the among postal functional groups is re- planned uses do not differ significantly quired to properly consider environ- from past uses of the site. mental issues that may be attributable (5) Acquisition of real property not to the proposed action. Operational and connected to specific facility plans or facility personnel must cooperate in when necessary to protect the interests the early concept stages of a program of the Postal Service in advance of or project. If it is determined that final project approval. This categorical more than one postal organization will exclusion only applies to the acquisi- be involved in any action, a lead orga- tion. Any subsequent use of the site for nization will be selected to complete a facility project must be considered the NEPA process before any NEPA under this part. documents are prepared. If it is deter- (6) Disposal through sale or outlease mined that a project has both real es- of unimproved real property. tate and non-real estate actions, the (7) Disposal through sale, outlease, facilities functional organization will transfer or exchange of real property to take the lead. other federal or state agencies. (8) Acquisition and disposal through [63 FR 45721, Aug. 27, 1998] sale, lease, transfer or exchange of real property that does not involve an in- § 775.8 Environmental evaluation crease in volumes, concentrations, or guidelines. discharge rates of wastes, air emis- (a) Approach. When dealing with pro- sions, or water effluents, and that posals which may have an impact on under reasonably foreseeable uses, have the human environment, environ- generally similar environmental im- mental coordinators, planners, decision pacts as compared to those before the makers, and other officials responsible acquisition or disposal. A determina- for actions, will, as appropriate:

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(1) Use a systematic approach that (ii) The action is not affected by ex- integrates natural and social sciences traordinary circumstances which may and environmental design in planning cause it to have a significant environ- and making decisions. mental effect, or (2) Identify environmental effects (iii) The action is a type that is not and values in detail, and appraise them a major federal action with a signifi- in conjunction with economic and tech- cant impact upon the environment. nical analyses. (2) Findings of no significant impact. If (3) Consider environmental docu- an environmental assessment indicates ments at all decision points at which that there is no significant impact of a other planning documents are consid- proposed action on the environment, ered. (Plans and decisions are to reflect an environmental impact statement is environmental values. Proposed ac- not required. A ‘‘finding of no signifi- tions should be assessed as soon as cant impact’’ (FONSI) is prepared and their effects can be meaningfully eval- published in accordance with § 775.13. uated, to provide the bases for early de- When the proposed action is approved, cision on whether detailed environ- it may be accomplished without fur- mental impact statements must be pre- ther environmental consideration. A pared.) FONSI document briefly presents the (4) Study, develop, describe, and reasons why an action will not have a evaluate at all decision points, reason- significant effect on the human envi- able alternatives to recommended ac- ronment and states that an environ- tions which may have a significant ef- mental impact statement will not be fect on the environment. prepared. It must refer to the environ- (b) Proposal requirements. When an en- mental assessment and any other envi- vironmental impact statement has ronmentally pertinent documents re- been prepared, it must accompany the lated to it. The assessment may be in- proposal through and be used in the de- cluded in the finding if it is short, in cision-making process. Any other pro- which case the discussion in the assess- posal must refer to applicable environment need not be repeated in the find- mental documents (e.g., determination ing. The FONSI may be a mitigated of categorical exclusion; finding of no FONSI in which case the required miti- significant impact; notice of intent to gation factors should be listed in the prepare an impact statement), and rel- FONSI. The use of a mitigated FONSI evant comments and responses. is conditioned upon the implementa- (c) Lead agency arrangements. If the tion of the identified mitigation meas- Postal Service and another Federal ures in the EA that support the FONSI. agency become involved in a lead agen- Unless the mitigation measures are im- cy arrangement for the preparation of plemented by the responsible official, an environmental impact statement, the use of an EA in lieu of an EIS is not the Service will cooperate fully. acceptable. (3) Impact statement preparation de- [44 FR 63525, Nov. 5, 1979. Redesignated at 63 cision and notices. If an environmental FR 45719, Aug. 27, 1998] assessment indicates that a proposed major action would have a significant § 775.9 Environmental evaluation proc- impact on the environment, a notice of ess. intent to prepare an impact statement (a) All actions—(1) Assessment of ac- is published (see § 775.13) and an envi- tions. An environmental checklist may ronmental impact statement is pre- be used to support a record of environ- pared. mental consideration as the determina- (4) Role of impact statement in deci- tion that the proposed action does not sion making. An environmental impact require an environmental assessment. statement is used, with other analyses An environmental assessment must be and materials, to decide which alter- prepared for each proposed action ex- native should be pursued, or whether a cept that an assessment need not be proposed action should be abandoned or made if a determination is made that: other courses of action pursued. See (i) The action is one of a class listed § 775.12 for restrictions on the timing of in § 775.6, Categorical Exclusions, and this decision.

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(5) Record of decision. For actions re- not required until the contending quiring environmental impact state- project sites have been determined. ments, a concise public record of deci- The information contained in the envi- sion is prepared when a decision, or a ronmental assessment report must be proposal for legislation, is made. The used, together with other site planning record, which may be integrated into information, in the selection of the any other record, or notice, including final site. that required by Postal Service regula- (2) When an environmental assess- tions and procedures governing inter- ment indicates that an environmental governmental review of Postal Service impact statement may be needed for a facility project actions, must: proposed facility action, the respon- (i) State what the decision was. sible officer will make the decision (ii) Identify all alternatives considered in reaching a decision, specifying whether to prepare an environmental alternatives considered to be environ- impact statement for presentation to mentally preferable; identify and dis- the Capital Investment Committee, cuss all significant factors, including and to the Board of Governors if the any essential considerations of na- Board considers the proposal. tional policy, which were weighed in (3) If an environmental impact state- making the decision and state how ment is presented to the Committee or those considerations entered into the the Board, and an analysis indicates decision. that it would be more cost-effective to (iii) State whether all practicable proceed immediately with continued means to avoid or minimize environ- control of sites, (including advance ac- mental harm from the alternative se- quisition, if necessary, and where au- lected have been or will be adopted, thorized by postal procedures), envi- and if not, why not. ronmental impact statement prepara- (6) Actions prohibited prior to issuance tion, and project designs, a budgetary of record of decision. Until a record of request will include authorization of decision is issued, no action may be funds to permit: taken on a proposal on which an envi- (i) The preparation of an impact ronmental impact statement is made if statement encompassing all reasonable the action would: alternatives and site alternatives, (i) Have an adverse environmental impact, or (ii) The continued control of specified (ii) Limit the choice of reasonable al- competing sites (including advance ac- ternatives. quisition, if necessary, and where au- (7) Mitigation measures. Practicable thorized by postal procedures), chosen mitigation measures identified in an to preserve environmental or other op- environmental assessment must be im- tions, and plemented. Mitigation measures de- (iii) The development of limited described in an environmental impact signs of facilities for each competing statement and accepted in a decision site. must be implemented. Upon request, (4) A completed environmental im- the Postal Service informs federal, pact statement will be presented to the state, and local agencies and the public Capital Investment Committee, and to of the progress in carrying out adopted the Board of Governors if the Board mitigation measures. considers the proposal, for use in decid- (b) Additional requirements for facility ing whether a proposed project should actions. (1) The environmental assess- proceed, be restudied, or be abandoned. ment of any action which involves the If the decision is to proceed with a pro- construction or acquisition of a new posed project, the Committee, or the mail processing facility must include Board if it considers the proposal, de- reasonable alternatives to the proposed cides which alternative site is to be action and not just consideration of contending sites for a facility. This process must be started early in the planning of the action. An environmental assessment report, however, is

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used for project development, and au- sonable courses of action, and mitiga- thorizes the project. tion measures. (iii) Impacts, which may be direct, [44 FR 63525, Nov. 5, 1979, as amended at 48 FR 29378, June 24, 1983; 50 FR 32411, Aug. 12, indirect, or cumulative. 1985; 50 FR 33036, Aug. 16, 1985; 55 FR 10454, (3) Issues which are not significant Mar. 21, 1990. Redesignated and amended at are identified and eliminated. 63 FR 45719, 45721, Aug. 27, 1998; 65 FR 41012, (4) The determinations made must be July 3, 2000] revised if substantial changes are made later in the proposed action, or if sig- § 775.10 Environmental assessments. nificant new circumstances or informa- (a) An environmental assessment tion arise which bear on the proposal must contain: or its impacts. (1) A summary of major consider- (b) Preparation. (1) Except for pro- ations and conclusions, posals for legislation, environmental (2) A description of the proposed ac- impact statements are prepared in two tion, stages: (3) For each reasonable alternative, a (i) Draft environmental impact state- description of the affected environment, prepared in accordance with the ment, the environmental consequences, scope decided upon under paragraph (a) the mitigation measures, if any, and a of this section. comparison to all alternatives consid- (ii) Final environmental impact ered. statement, responding to comments on (4) A list of applicable environmental the draft statement and discussing and permits necessary to complete the pro- responding to any responsible opposing posed action. view which was not adequately dis- (b) Those preparing an environmental cussed in the draft statement. assessment must solicit information (2) Environmental impact statements and views from Federal, State, and must: local agencies and, where there is a (i) Be analytic rather than encyclo- substantial likelihood of significant ef- pedic. fects on the environment, the public. (ii) Contain discussions of impacts in All responsible views and information proportion to their significance. Insig- must be considered. nificant impacts eliminated during the [44 FR 63525, Nov. 5, 1979. Redesignated and process under § 775.11(a) to determine amended at 63 FR 45719, 45722, Aug. 27, 1998] the scope of issues must be discussed only to the extent necessary to state § 775.11 Environmental impact state- why they will not be significant. ments. (iii) Be concise, and not longer than (a) Determining scope. Before an envi- is necessary to comply with NEPA. ronmental impact statement is pre- They must not contain repeated state- pared, the following procedures must ments of the same basic points. be followed to determine what issues (iv) Contain discussions of alter- are to be addressed and in what depth: natives considered and of how alter- (1) Affected Federal, State, and local natives chosen will meet the require- agencies and other interested persons ments of NEPA and other environ- are invited to participate by furnishing mental laws and policies. written views and information, or at a (v) Encompass the range of alter- hearing if appropriate. Notice is given natives to be considered by the deci- in accordance with § 775.13. sion makers. (2) The significance of issues to be (vi) Serve to assess the environ- analyzed in depth in the environmental mental impact of proposed actions, impact statement is determined rather than to justify decisions already through consideration of: made. (i) Actions which are closely related, (3) The text of final environmental or similar, or have cumulative signifi- impact statements normally should be cant impacts. less than 150 pages. Statements on pro- (ii) Alternatives, which must include posals of unusual scope or complexity the ‘‘no action’’ alternative, other rea- normally should be less than 300 pages. 212

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(4) Staged or ‘‘tiered’’ environmental to the need for an authorization it impact statements must not contain must be indicated. repetitive discussions of the same (10) An environmental impact state- issues. Each document must state ment must contain a discussion of any where each earlier document is avail- inconsistency between the proposed ac- able. tion and any State or local law, ordi- (5) Material may be incorporated into nance, or approved plan; and must con- an environmental impact statement by tain a description of the manner and reference only when the material is extent to which the proposed action reasonably available for inspection by will be reconciled with the law, ordi- potentially interested persons within nance, or approved plan. the time allowed for comment. (6) If information relevant to reason- (11) Where State laws or local ordi- ably foreseeable adverse impacts can- nances impose environmental impact not be obtained because the overall statement requirements which are not cost of obtaining it is exorbitant or the in conflict with those in NEPA, an en- means to obtain it are not known, the vironmental impact statement made fact that such information is incom- by the Postal Service should satisfy plete or unavailable must be stated pertinent State and local requirements clearly. In addition, the relevance of to the extent practicable. the incomplete or unavailable informa- (c) Format. The standard format for tion to the evaluation of the impacts environmental statements is: must be stated, and a summary of ex- (1) Cover Sheet. The cover sheet, not isting credible scientific evidence rel- to exceed one page, must include: evant to evaluation of the impacts (i) A list of the responsible agencies must be included, as well as an evalua- including the lead agency and any co- tion of such impacts on the basis of operating agencies. theoretical approaches or generally ac- (ii) The title of the proposed action cepted research methods. For purposes that is the subject of the statement of this subsection, ‘‘reasonably foresee- (and if appropriate, the titles of related able’’ includes impacts which have cat- cooperating agency actions), together astrophic consequences, even if their probability of occurrence is low, pro- with any city, state, and county where vided that the analysis of the impacts the action is to take place. is supported by credible scientific evi- (iii) The name, address, and tele- dence, is not based on pure conjecture, phone number of a person at the agen- and is within the rule of reason. cy who can supply further information. (7) If a cost-benefit analysis relevant (iv) A designation of the document as to the choice among environmentally a draft or final statement or a draft or different alternatives was prepared for final supplement. the proposed action, it must be incor- (v) A one-paragraph abstract of the porated by reference or appended to the statement. statement to aid in evaluating the en- (vi) The date by which comments vironmental consequences. The rela- must be received. tionship between the cost-benefit anal- (2) Summary. The section should ysis and any analysis of unquantified compare and summarize the findings of environmental impacts, values, and the analyses of the affected environ- amenities must be discussed. ment, the environmental impacts, the (8) Methods used must be identified, environmental consequences, the alter- and footnote references must be made to scientific and other sources relied on natives, and the mitigation measures. for conclusions. Analytical techniques The summary should sharply define the may be incorporated in appendices. issues and provide a clear basis for (9) Permits, licenses, and other au- choosing alternatives. thorizations needed to implement a (3) Table of Contents. proposal must be listed in the draft en- (4) Proposed action. This section vironmental impact statement and the should clearly outline the need for the prospects for obtaining them must be EIS and the purpose and description of assessed. Where there is uncertainty as the proposed action. The entire action

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should be discussed, including con- sons who were primarily responsible nected and similar actions. A clear dis- for preparing the environmental im- cussion of the action will assist in con- pact statement or significant back- sideration of the alternatives. ground papers. (5) Alternatives and mitigation. This (9) List of Agencies, Organizations and portion of the environmental impact Persons to Whom Copies of the Statement statement is vitally important. Based Are Sent. on the analysis in the Affected Envi- (10) Index. ronment and Environmental Con- (11) Appendices. Include comments on sequences section (see § 775.11(c)(6)), the draft statement in final statement. environmental impacts and the alter- (d) Distribution. (1) Any completed natives are presented in comparative draft environmental impact statement form, thus sharply defining the issues which is made the subject of a public and providing a clear basis for choosing hearing, must be made available to the alternatives. Those preparing the public as provided in § 775.12, of this statement must: chapter at least 15 days in advance of (i) Explore and evaluate all reason- the hearing. able alternatives, including the no ac- ‘‘ (2) Draft and final environmental im- tion alternative, and briefly discuss ’’ pact statements must be filed with the the reasons for eliminating any alter- Environmental Protection Agency. natives. Five copies are filed with EPA’s head- (ii) Devote substantial treatment to quarters addressed to the Office of Fed- each alternative considered in detail, eral Activities (A–104), Environmental including the proposed action, so that Protection Agency, 401 M Street SW., reviewers may evaluate their compara- Washington, DC 20460; five copies are tive merits. also filed with the responsible EPA re- (iii) Identify the preferred alter- gion. Statements may not be filed with native or alternatives in the draft and the EPA earlier than they are trans- final statements. mitted to commenting agencies and (iv) Describe appropriate mitigation made available to the public. measures not considered to be an inte- (3) Copies of draft and final environ- gral part of the proposed action or al- mental impact statements must be fur- ternatives. See § 775.9(a)(7). nished to: (6) Affected Environment and Environ- mental Consequences. For each reason- (i) Any Federal agency which has ju- able alternative, each affected element risdiction by law or special expertise of the environment must be described, with respect to any environmental im- followed immediately by an analysis of pact involved. the impacts (environmental con- (ii) Any appropriate Federal, state, sequences). The analysis must include, or local agency authorized to develop among others, the following: and enforce environmental standards. (i) Any adverse environmental effects (iii) The appropriate review officials which cannot be avoided should the ac- identified in the Postal Service regulation be implemented. tions and procedures governing inter- (ii) The relationship between short- governmental review of Postal Service term uses of the environment and the facility project actions, the State His- maintenance and enhancement of long- toric Preservation Officer, and, when term productivity, National Register or eligible properties (iii) Any irreversible or irretrievable may be affected, the Advisory Council commitments of resources should the on Historic Preservation. action be implemented, and (iv) Any person, organization or (iv) Energy requirements and con- agency requesting them. servation; and natural, or depletable, (4) Copies of final environmental im- resource requirements and conserva- pact statements must be furnished to tion. any person who, or organization or (7) List of Mitigation Measures. agency which, submitted substantive (8) List of Preparers. List the names, comments on the draft. together with the qualifications (exper- (e) Responses to comments. (1) A final tise, professional disciplines), of per- statement responds to comments on a

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draft statement in one or more of the (1) A legislative environmental im- following ways: pact statement is considered part of (i) Modification of alternatives, in- the formal transmittal of a legislative cluding the proposed action. proposal to the Congress. It may be (ii) Development and evaluation of transmitted to the Congress up to 30 alternatives not previously given seri- days after the proposal. The statement ous consideration. must be available in time for Congres- (iii) Supplementation, improvement, sional hearings and deliberations. or modification of analyses. (2) Preparation and processing of a (iv) Correction of facts. legislative statement must conform to (v) Explanation of why a comment the requirements for impact state- does not warrant a direct response, cit- ments, except as follows: ing supporting sources, authorities, or (i) It is not necessary to determine reasons. Relevant circumstances which the scope of issues. may trigger reappraisal or further re- (ii) A draft is considered to be a final sponse must be indicated. statement. Both draft and final state- (2) Substantive comments received ments are needed only when: on a draft statement must be attached (A) A Congressional committee with to the final statement. jurisdiction over the proposal has a (3) If all of the changes are minor and rule requiring both. are confined to responses described in (B) Both are specifically required by paragraphs (e)(1) (iv) and (v) of this statute for proposals of the type being section, errata sheets may be written, submitted. and only the comments and errata (3) Comments received on a legisla- sheets need be recirculated. In such a tive statement, and the Postal Serv- case, the draft statement with the ice’s responses, must be forwarded to comments, errata sheets, and a new the Congress. cover, must be filed as the final statement. [44 FR 63525, Nov. 5, 1979, as amended at 48 (f) Supplements. (1) A supplement to a FR 29378, June 24, 1983; 55 FR 10455; Mar. 21, draft or final environmental impact 1990. Redesignated and amended at 63 FR statement must be issued if: 45719, 45722, Aug. 27, 1998] (i) Substantial changes are made in the proposed action that are relevant § 775.12 Time frames for environmental impact statement actions. to environmental concerns; or (ii) Significant new circumstances or (a) Each week the EPA publishes in information bearing on environmental the FEDERAL REGISTER a notice of the impacts of the proposed action arise or draft and final environmental impact are discovered. statements received in that office dur- (2) The decision on a proposed action ing the preceding week. The minimum involving an environmental impact time periods for decision on an action, statement, must be delayed until any specified in paragraphs (b) through (d) necessary supplement has been cir- of this section, are calculated from the culated and has gone through the com- date of publication of an EPA notice of menting period. A supplement is pre- receipt of the relevant impact state- pared, circulated, and filed in the same ment. manner (except for determining scope) (b) A decision on a proposed action as draft and final statements, unless may not be made or recorded until the alternative procedures are approved by later of the following dates: 90 days CEQ. after publication of the notice de- (g) Contracting. A contractor em- scribed in paragraph (a) of this section ployed to prepare an environmental for a draft statement or 30 days after impact statement must certify that it publication of the notice for a final has no financial or other interest in statement. the outcome of the project. (c) If a final statement is filed with (h) Proposals for Legislation. Legisla- the EPA within 90 days after a draft tive environmental impact statements statement is filed, the 30 day period must be prepared and transmitted as and the 90 day period may run concur- follows: rently.

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(d) A minimum of 45 days must be al- for information. Environmental docu- lowed for comments on draft statements are made available to the public ments. on request. Inspection, copying, and [44 FR 63525, Nov. 5, 1979. Redesignated at 63 the furnishing of copies will be in ac- FR 45719, Aug. 27, 1998] cordance with 39 CFR Part 265, ‘‘Re- lease of Information.’’ § 775.13 Public notice and information. [44 FR 63525, Nov. 5, 1979, as amended at 47 (a) Public notice is given of NEPA-re- FR 19992, May 10, 1982; 48 FR 29378, June 24, lated hearings, intent to undertake en- 1983. Redesignated and amended at 63 FR vironmental assessments and environ- 45719, 45722, Aug. 27, 1998] mental impact statements, and the availability of environmental docu- § 775.14 Hearings. ments (that is, environmental assess- (a) Public hearings must be held ments, findings of no significant im- whenever there is: pact, and environmental impact state- (1) Substantial environmental con- ments), as follows: troversy concerning a proposed action (1) Notices must be mailed to those and a request for a hearing by any re- who have requested them. sponsible individual or organization; (2) Notices concerning a proposal of (2) A request for a hearing by an national concern must be mailed to na- agency with jurisdiction over or special tional organizations reasonably ex- expertise concerning the proposed ac- pected to be interested. Any such no- tion; or tice must be published in the FEDERAL (3) A reasonable expectation that a REGISTER. (See paragraph (a)(4) of this hearing will produce significant infor- section. mation not likely to be obtained with- (3) Notices of any proposed action out a hearing. having effects primarily of local con- (b) The distribution and notice re- cern are given as follows: quirements of §§ 775.11(d)(1) and 775.13 (i) Any such notice, including a copy must be complied with whenever a of any pertinent environmental docu- hearing is to be held. ment, must be mailed to the appropriate review officials identified in the [44 FR 63525, Nov. 5, 1979. Redesignated and Postal Service regulations and proce- amended at 63 FR 45719, 45722, Aug. 27, 1998] dures governing intergovernmental review of Postal Service facility project PART 776—FLOODPLAIN AND actions, to the State Historic Preserva- WETLAND PROCEDURES tion Officer, and to local public officials. Subpart A—General Provisions (ii) Any such notice must be published in one or more local newspapers. Sec. 776.1 Purpose and policy. (iii) Any such notice must be posted 776.2 Responsibility. on and near any proposed and alternate 776.3 Definitions. sites for an action. (iv) Any such notice may be mailed Subpart B—Floodplain Management to potentially interested community organizations, including small business 776.4 Scope. associations. 776.5 Review procedures. (v) Any such notice may be mailed to 776.6 Design requirements for construction. 776.7 Lease, easement, right-of-way, or dis- owners and occupants of nearby or af- posal of property to non-federal parties. fected property. (4) A copy of every notice of intent to Subpart C—Wetlands Protection prepare an environmental impact statement must be furnished to the 776.8 Scope. Chief Counsel, Legislative, Law De- 776.9 Review procedures. 776.10 Lease, easement, right-of-way, or dis- partment, who will have it published in posal of property to non-Federal parties. the FEDERAL REGISTER. (b) All notices must give the name, AUTHORITY: 39 U.S.C. 401. address, and telephone number of a SOURCE: 64 FR 56254, Oct. 19, 1999, unless postal official who may be contacted otherwise noted.

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Subpart A—General Provisions a minimum, that area subject to a one percent or greater chance of flooding in § 776.1 Purpose and policy. any given year (also known as a 100- (a) The regulations in this part im- year floodplain). plement the goals of Executive Orders Practicable means capable of being ac- 11990, Protection of Wetlands, and complished within existing constraints. 11988, Floodplain Management, and are The test of what is practicable depends adopted pursuant to the Postal Reorga- on the situation and includes consider- nization Act, as the Postal Service ation of many factors, such as environ- does not meet the definition of the ment, cost, technology, implementa- term ‘‘agency’’ used in the Executive tion time, and postal operational Orders. needs. (b) The Postal Service intends to ex- Preferred area means the specific geo- ercise leadership in the acquisition and graphical area proposed for a new post- management of real property, con- al facility, as developed by the oper- struction of facilities, and disposal of ations organization within the Postal real property, located in floodplains Service. A preferred area’s boundaries and wetlands. Consistent with the are unique for each proposed facility goals of the Executive Orders, the regu- based on the operational and customer lations in this part are not intended to service needs of the Postal Service. prohibit floodplain and wetland devel- Preferred site means the most advan- opment in all circumstances, but rath- tageous site for a proposed facility, er to create a consistent policy to min- taking into consideration postal oper- imize adverse impacts. ational and customer service needs, cost, and availability, as determined by § 776.2 Responsibility. the operations organization within the The appropriate Manager, Facilities Postal Service. Service Office, or functional equivalent Wetlands means those areas that are within the Postal Service’s facilities inundated or saturated by surface or organization, in conjunction with the groundwater at a frequency and dura- appropriate Vice President, Area Oper- tion sufficient to support, and that ations, or functional equivalent within under normal circumstances do sup- the Postal Service’s operations organi- port, a prevalence of vegetation typi- zation, are responsible for overall com- cally adapted for life in saturated soil pliance with the regulations in this conditions. Wetlands generally include part pertaining to facilities projects. swamps, marshes, bogs, and similar The Vice President, Area Operations, is areas. responsible for compliance with these regulations for those projects within the Vice President’s delegated author- Subpart B—Floodplain ity. Management

§ 776.3 Definitions. § 776.4 Scope. Construction means construction, al- (a) The regulations in this subpart terations, renovations, and expansions are applicable to the following proof buildings, structures and improve- posed postal facility actions located in ments. a floodplain: Contending site means a site or exist- (1) New construction, owned or ing building for a proposed postal facil- leased; or ity action, which meets the require- (2) Construction projects at an exist- ments of the Postal Service as deter- ing facility that would increase the mined by the operations organization. amount of impervious surface at the Facility means any building, appur- site. tenant structures, or associated infra- (b) These procedures are not applica- structure. ble to the following postal facility ac- Floodplain means the lowland and rel- tions: atively flat areas adjoining inland and (1) Those actions identified in para- coastal waters including flood-prone graphs (a)(1) and (a)(2) of this section, areas of offshore islands, including, at when the entire preferred area, or all

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contending sites, for such actions lies determined based on the best available within a floodplain; information. (2) Incidental construction, such as (2) Once the preferred site has been construction of athletic fields, rec- identified, potential floodplain impacts reational facilities, sidewalks, and must be determined. As part of this de- other minor alteration projects; termination process, specific floodplain (3) Construction at existing postal fa- information should be developed, which cilities pursuant to the Architectural is to consider: Barriers Act or postal accessibility (i) Whether the proposed action will standards; directly or indirectly support flood- (4) Any facility construction project plain development; deemed necessary to comply with fed- (ii) Flood hazard and risk to lives and eral, state, or local health, sanitary, or property; safety code standards to ensure safe (iii) Effects on natural and beneficial working conditions; floodplain values, such as water qual- (5) Construction of facilities that are ity maintenance, groundwater re- functionally dependent on water, such charge, and agriculture; and as piers, docks, or boat ramps; (iv) Possible measures to minimize (6) Maintenance, repair, or renova- harm to, or impact on, the floodplain. tion of existing facilities; or (d) Reevaluation. After the above steps have been followed, if the deter- (7) Leasing or other use of space for mination is that there appears to be no not more than one year. practicable alternative to constructing § 776.5 Review procedures. in a floodplain, a further review of alternatives must be conducted by the Officials shall follow the decision- facilities organization in conjunction making process outlined in paragraphs with the operations organization re- (a) through (f) of this section, when a questing the construction of the facil- facility action may involve floodplain ity. The further review of alternatives issues. Under certain circumstances, must be conducted by the operations this process may be carried out with organization for projects within the fewer steps if all objectives of the deci- delegated authority of the Vice Presi- sion-making process can be achieved. A dent, Area Operations. general principle underlying this proc- (e) Final public notice. As a result of ess is that a postal facility action re- the reevaluation, if it is determined quiring construction in a floodplain that there is no practicable alternative may be considered only when there is to constructing in a floodplain, public no practicable alternative. notice shall be provided as soon as pos- (a) Analysis of alternatives. If a postal sible for the proposed action. The no- facility action would involve construc- tice should be publicized and should in- tion in a floodplain, alternative actions clude: shall be considered. (1) Identification of the project’s lo- (b) Early public notice. If a facility ac- cation; tion at the contending site(s) could re- (2) Provision for a 30-day public com- quire construction in a floodplain, pub- menting period before irrevocable ac- lic notice must be provided. tion is taken by the Postal Service; (c) Floodplain location and informa- and tion. (1) Personnel shall determine (3) Name and complete address of a whether construction would occur postal contact person responsible for within a floodplain. The determination providing further information on the shall be made by reference to appro- decision to proceed with a facility ac- priate Department of Housing and tion or construction project in a flood- Urban Development (HUD) floodplain plain. Upon request, that person shall maps (sometimes referred to as Flood- provide further information as follows: plain Insurance Rate Maps (FIRM)), or (i) A description of why the proposed Federal Emergency Management Agen- action must be located in a floodplain; cy (FEMA) maps, or more detailed (ii) A listing of alternative actions maps if available. If such maps are not considered in making the determina- available, floodplain location must be tion; and

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(iii) A statement indicating whether (1) Construction of foot and bike the action conforms to applicable state trails, or boardwalks, including signs, and local floodplain protection stand- the primary purposes of which are pub- ards. lic education, interpretation, or enjoy- (f) Distribution. The above public no- ment of wetland resources; tice will be sent to appropriate offi- (2) Construction at existing postal fa- cials, local newspapers, and other par- cilities pursuant to the Architectural ties who express interest in the project. Barriers Act or postal accessibility (g) NEPA coordination. If either an standards; Environmental Impact Statement or (3) Any facility construction project an Environmental Assessment is redeemed necessary to comply with fed- quired under the Postal Service’s Na- eral, state, or local health, sanitary, or tional Environmental Policy Act safety code standards to ensure safe (NEPA) regulations, the above review working conditions; procedures must be incorporated into (4) Construction of facilities that are and evaluated in that document. functionally dependent on water, such as piers, docks, or boat ramps; or § 776.6 Design requirements for construction. (5) Maintenance, repair, or renovation of existing facilities. If structures impact, are located in, or support development in a floodplain, § 776.9 Review procedures. construction must conform, at a minimum, to the standards and criteria of (a) Early public notice. If a facility ac- the National Flood Insurance Program tion at the contending site(s) could re- (NFIP), except where those standards quire construction in a wetland, public are demonstrably inappropriate for notice must be provided. postal purposes. (b) Finding of no practicable alternative. The Postal Service shall avoid § 776.7 Lease, easement, right-of-way, construction located in a wetland un- or disposal of property to non-fed- less it issues a finding of no practicable eral parties. alternative. The facilities organiza- When postal property in floodplains tion, in conjunction with the oper- is proposed for lease, easement, right- ations organization, or, for projects of-way, or disposal to non-federal pub- within the delegated authority of the lic or private parties, the Postal Serv- Vice President, Area Operations, the ice shall: operations organization, shall make a (a) Reference in the conveyance doc- written determination that: ument that the parcel is located in a (1) There is no practicable alter- floodplain and may be restricted in use native to such construction; and pursuant to federal, state, or local (2) The proposed action includes all floodplain regulations; or practicable measures to minimize (b) Withhold the property from con- harm to wetlands. veyance. (c) NEPA coordination. If either an Environmental Impact Statement or Subpart C—Wetlands Protection an Environmental Assessment is required under the Postal Service’s Na- § 776.8 Scope. tional Environmental Policy Act (a) The regulations in this subpart (NEPA) regulations, the above review are applicable to the following pro- procedures must be incorporated into posed postal facility actions located in and evaluated in that document. a wetland: (1) New construction, owned or § 776.10 Lease, easement, right-of-way, leased; or or disposal of property to non-fed- (2) Construction projects at an exist- eral parties. ing facility that would alter the exter- When postal-owned wetlands or por- nal configuration of the facility. tions of wetlands are proposed for (b) These procedures are not applica- lease, easement, right-of-way, or dis- ble to the following postal facility ac- posal to non-federal public or private tions: parties, the Postal Service shall:

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(a) Reference in the conveyance doc- suant to federal, state, or local wet- ument that the parcel contains wetlands regulations; or lands and may be restricted in use pur- (b) Withhold the property from conveyance.

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PART 777—RELOCATION ASSIST- § 777.12 Purpose. ANCE AND REAL PROPERTY AC- The purpose of these regulations is to QUISITION POLICIES update policy and procedures for the Postal Service’s voluntary compliance Subpart A—General Policy, Purpose and with the Act. Definitions § 777.13 Definitions. Sec. (a) The Act. The Uniform Relocation 777.11 General policy. Assistance and Real Property Acquisi- 777.12 Purpose. tion Policies Act of 1970 (Pub. L. 91–646; 777.13 Definitions. 84 Stat. 1894). 777.14 Certain indirect actions prohibited. (b) Business. Any lawful activity, except a farm operation, that is: Subpart B—Uniform Relocation Assistance (1) Conducted primarily for the pur- 777.21 General procedures. chase, sale, lease, and/or rental of per- 777.22 Relocation assistance advisory serv- sonal and/or real property, and for the ices. manufacturing, processing, and/or mar- 777.23 Moving expenses. keting of products, commodities, and/ 777.24 Replacement housing payments. or any other personal property; or 777.25 Additional rules for replacement (2) Conducted primarily for the sale housing payments. of services to the public; or 777.26 Mobile homes. (3) Solely for the purposes of reim- 777.27 Last resort housing. bursing moving and related expenses, 777.28 Claims and appeals. conducted primarily for outdoor advertising display purposes, when the dis- Subpart C—Acquisition play(s) must be moved as a result of 777.31 Acquisition procedures. the project; or 777.32 Acquisition of tenant-owned improve- (4) Conducted by a nonprofit organi- ments. zation that has established its non- 777.33 Expenses incidental to transfer of profit status under applicable Federal title to the Postal Service. or State law. (c) Small business. A business having Subpart D—Voluntary Acquisitions at least one but not more than 500 employees working at the location being 777.41 Acquisition procedures. acquired. (d) Comparable Replacement Dwelling. Subpart E—Donations A dwelling which is: 777.51 Acceptance of donations. (1) Decent, safe, and sanitary. (2) Functionally similar to the dis- AUTHORITY: 39 U.S.C. 401. placement dwelling with particular at- SOURCE: 51 FR 6983, Feb. 27, 1986, unless tention to the number of rooms and otherwise noted. living space. (3) In an area that is not subject to Subpart A—General Policy, unreasonably adverse environmental Purpose and Definitions conditions, is not generally less desirable than the location of the displace- § 777.11 General policy. ment dwelling with respect to public utilities and commercial and public fa- It is the policy of the Postal Service cilities, and is reasonably accessible to to comply voluntarily with the provi- the displaced person’s place of employ- sions of the Uniform Relocation Assist- ment. ance and Real Property Acquisition (4) On a site that is typical in size for Policies Act of 1970 (Pub. L. 91–646; 84 residential development with normal Stat. 1894), hereinafter referred to as site improvements including cus- the Act. tomary landscaping. The site need not

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include special improvements such as erty following Postal Service action to outbuildings, fences, swimming pools, obtain title to, or a leasehold interest and greenhouses. in, such real property by the exercise (5) Currently available to the dis- or the threat of the exercise of eminent placed person. domain. (6) Within the financial means of the (ii) A person who is a tenant and who displaced person. is required to move or to move his or (e) Decent, Safe, and Sanitary Dwell- her personal property from real prop- ing. A dwelling which meets local hous- erty: ing and occupancy codes and the fol- (A) Following Postal Service action lowing standards, unless they are to obtain the tenant’s leasehold inter- waived for good cause by the Postal est in such real property by the exer- Service. The dwelling must: cise or the threat of the exercise of (1) Be structurally sound, weather- eminent domain, or, tight, and in good repair. (2) Contain a safe electrical wiring (B) Where the Postal Service ac- system adequate for lighting and other quires a fee interest in the property electrical devices. (including long-term leases of 50 years (3) Contain a heating system capable or more), as a result of a Postal Service of sustaining a healthful temperature notice of displacement or notice to va- of approximately 70 degrees except in cate such real property, provided the those areas where local climatic condi- tenant was lawfully in possession on tions do not require such a system. the date title to such property trans- (4) Be adequate in size with respect fers to the Postal Service. (The re- to the number of rooms and areas of quirement that the tenant occupy such living space needed to accommodate real property on the date title in such the displaced persons. There shall be a real property transfers to the Postal separate, well-lighted and ventilated Service may be waived for good cause bathroom that provides privacy to the by the Postal Service.) user and contains a bathtub or shower (C) Where such real property was stall, sink, and toilet, all in good work- used to construct a new building for ing order and properly connected to ap- the express purpose of leasing to the propriate sources of water and to a Postal Service under circumstances sewage drainage system. In the case of where such tenant would have been a a housekeeping unit—as opposed to, for ‘‘displaced person’’ hereunder had the example, a room in a boarding house— Postal Service itself acquired the land there shall be a kitchen area that con- and required the removal of the tenant tains a fully usable sink, properly con- to undertake construction of the build- nected to potable hot and cold water ing for Postal Service ownership. and to a sewage draining system, and (iii) Where the Postal Service ac- adequate space and utility service con- nections for a stove and a refrigerator. quires either a fee interest or a lease- (5) Contain unobstructed egress to hold interest in the property, a person safe, open space at ground level. who is a residential tenant and is or (6) For displaced persons who are will be required to move or to move his handicapped, be free of any barriers or her property from the real property, which would preclude their reasonable in order for the Postal Service to ac- ingress, egress, or use of the dwelling. complish the project for which the (f) Displaced Person. (1) Subject to the property was acquired, provided such additional definitions, limitations and tenant occupies such real property on exceptions in paragraph (f)(2) of this the date title in such real property section, the term ‘‘displaced person’’ is transfers to the Postal Service or the defined as follows. (‘‘Displaced persons’’ date the Postal Service leases or con- are entitled to receive benefits only as tracts to lease such property, and fur- specifically provided for elsewhere in ther provided such tenant was lawfully these regulations.) in possession at the time of the initi- (i) A person who owns real property, ation of negotiations. (The require- and who is required to move or to move ment that the tenant occupy such real personal property from the real prop- property on the date title in such real

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property transfers to the Postal Serv- prevailing market conditions is not ice may be waived for good cause by considered to be a displaced person. the Postal Service.) (viii) A mobile home occupant who (2) The term ‘‘displaced person’’ cov- owns the site on which the mobile ers only persons meeting the require- home is located and who voluntarily ments in paragraph (f)(1) of this sec- sells the site to the Postal Service, re- tion. The term ‘‘displaced person’’ does gardless of whether such person owns not cover the following non-exclusive or rents the mobile home. list of examples. (ix) A person whose property is ac- (i) An owner who voluntarily sells his quired through a ‘‘friendly condemna- or her real property to the Postal Serv- tion action’’ where price is not an issue. ice, or, (g) Displacement Dwelling. The dwell- (ii) A tenant who voluntarily trans- ing acquired by the Postal Service fers his or her leasehold interest to the from which a displaced person is re- Postal Service without the exercise or quired to move. the threat of the exercise of eminent (h) Dwelling. The place of permanent domain, or, or customary and usual residence of a (iii) A tenant who is not lawfully in person including a single family house; possession at the times for which law- a single family unit in a two-family, ful possession is specified in paragraphs multi-family, or multi-purpose prop- (f)(1)(ii)(B) and (f)(1)(iii) of this section. erty; a unit of a condominium or coop- A tenant who was legally required by erative housing project; a non-house- the lease or otherwise to have moved keeping unit (i.e. room in a boarding from the property at the times speci- house); a mobile home; or any other fied in such paragraphs shall not be residential unit. considered to be lawfully in possession. (i) Family. Two or more individuals (iv) A person who, at the determina- who are related by blood, adoption, tion of the Postal Service, is not re- marriage, or legal guardianship who quired to relocate permanently, or, live together as a family unit. If the (v) A person who, after receiving a Postal Service considers that cir- notice of displacement or notice to va- cumstances warrant, others who live cate by the Postal Service, is notified together as a family unit may be treat- in writing that he or she will not be ed as if they are a family for the pur- displaced. Such later notification shall pose of determining assistance under not be issued if the person has already these regulations. moved. If such latter notification is (j) Farm Operation. Any activity con- issued, the Postal Service shall reim- ducted solely or primarily for the pro- burse the person for any reasonable ex- duction of one or more types of agricul- penses incurred to satisfy any binding tural products or commodities, includ- contractual relocation obligations ening timber, for sale or home use, and tered into after the effective date of customarily producing such products the notice of displacement or the no- or commodities in sufficient quantity tice to vacate or, to be capable of contributing materi- (vi) A person who is required to tem- ally to the operator’s support. porarily vacate the premises in order (k) Financial Means. A comparable re- to permit fumigation, repair, painting, placement dwelling is within the finan- or other maintenance or code of en- cial means of the displaced family or forcement work or, individual if the average monthly rent- (vii) A tenant who is required to al or housing cost (e.g., monthly mort- move from real property as a result of gage payments, insurance for the a notice from the Postal Service to va- dwelling unit, property taxes, and cate such real property where such no- other reasonable recurring related ex- tice to vacate is issued five years or penses) which the displaced person will more after the date of the acquisition be required to pay does not exceed the of such real property. A tenant who is greater of 25 percent of the monthly given a notice to vacate as a result of gross income of the displaced family or failure to comply with the terms of his/ individual or the ratio of the present her lease with the Postal Service or monthly rental or housing cost to the failure to renew his/her lease under gross income of the displaced family or

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individual. (Supplemental payments (p) Person. Any individual, family, made by public agencies are to be in- partnership, corporation, association, cluded in gross income for purposes of business or farm operation. these comparisons.) (q) Personal Property. Any tangible (l) Initiation of Negotiations. In the property, not considered part of the case where eminent domain is neither real property, for which payment has exercised nor threatened to be exer- not been included in the acquisition cised, the initiation of negotiations is cost. the initial written communication (r) Tenant. A person who has the stating a price by the owner or the legal right to temporary use and occu- owner’s representative to the Postal pancy of real property owned by an- Service, or by the Postal Service to the other. In some cases, these regulations owner or the owner’s representative, also use the term ‘‘tenant’’ to refer to a regarding a proposed acquisition (by person who occupies real property purchase or lease) or an interest in a owned by another but whose legal right specific piece of real property. In the was terminated due to a timely notice case where eminent domain is either to vacate the real property used and exercised or threatened to be exercised, occupied. the initiation of negotiations is the [51 FR 6983, Feb. 27, 1986, as amended at 54 date the Postal Service makes a writ- FR 10666, Mar. 15, 1989] ten offer of just compensation. (m) Notice of Displacement. A notice § 777.14 Certain indirect actions pro- given in writing by the Postal Service hibited. to a person that he or she will be dis- Postal employees shall take no indi- placed from his or her place of resi- rect, coercive, or deceptive actions to dence, business or farm, as a result of cause persons to move from real prop- a facility action by the Postal Service. erty in an effort to avoid the cir- A notice of displacement may be com- cumstances under which such persons bined with or in a notice to vacate. would be eligible to receive relocation (n) Notice to Vacate. A notice given in benefits as displaced persons under writing by the Postal Service to a per- these regulations. If a claimant dem- son that he or she is to vacate postal onstrates that such prohibited action owned property on or before a certain caused him or her to move, he or she date. A notice to vacate may be com- will be treated as a displaced person bined with or in a notice of displace- hereunder, if he or she otherwise meets ment. the definition of a displaced person. (o) Owner of Displacement Dwelling. A person is considered to be an owner, if, Subpart B—Uniform Relocation at the initiation of negotiations, the Assistance person holds any of the following interests in real property acquired for a § 777.21 General procedures. postal project: (a) Planning Prior to Site Selection. (1) Fee title, a life estate, a 99-year When acquisition of a site under con- lease, or a lease, including any options sideration would likely involve dis- for extension, with at least 50 years to placement of a person eligible under run from the date of acquisition; or § 777.13 for relocation assistance, the (2) An interest other than leasehold Postal Service representative shall pre- interest in a cooperative housing pare a relocation needs and avail- project which includes the right to oc- ability analysis. The Postal Service cupy a dwelling; or representative shall include in the (3) A contract to purchase any of the analysis a complete inventory of per- interests or estates described in para- sons who may be displaced and specifi- graph (o)(1) or (o)(2) of this section; or cally identify their needs. (4) Any other interest, including a (b) Planning Subsequent to Site Selec- partial interest, which in the judgment tion. Subsequent to site selection, the of the Postal Service, warrants consid- Postal Service must review the reloca- eration as ownership. tion needs and availability analysis

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and establish a specific plan for proof contracting or between the time of viding the assistance covered by these contracting and the time of acquisition regulations to any eligible displaced if the Postal Service considers it wise persons. It will further determine the to start the displacement process then necessity of establishing an on-site re- and if, in the judgment of the Postal location office which would be acces- Service, it is clear that person will in sible to displaced persons and would be fact be a displaced person. staffed with relocation personnel quali- (g) Notice of Availability of Advisory fied to render all relocation services. Services. The notice of displacement The Postal Service will assure that will state that relocation assistance cost estimates reflect current market advisory services will be available to conditions and that funding is avail- the displaced person and will designate able for all relocation assistance and who will provide such services. activities. (h) Eviction for cause. Any person oc- (c) Contracting for Relocation Services. cupying real property and not in un- When the Postal Service determines it lawful occupancy on the date of initi- to be advantageous, it may enter into a ation of negotiations is presumed to be relocation assistance service contract entitled to relocation payments and with a public agency or private firm other assistance unless the Postal having expertise in relocation assist- Service determines that: ance. The contract must require the (1) The person received an eviction contractor to follow Postal Service re- notice prior to initiation of negotia- location assistance regulations. tions and, as a result of that notice, is (d) Notice to Vacate, Ninety Day Re- later evicted; or quirement. Postal Service notices to va- (2) The person is evicted after initi- cate must be issued at least 90 days ation of negotiations for serious or re- prior to the date the property must be peated violation of material terms of vacated. Any such notice must be in the lease or occupancy agreement; and writing and delivered in person with re- (3) In either case the eviction is not ceipt acknowledged, or by certified undertaken for the purpose of evading mail, return receipt requested. The 90- the obligation to make the relocation day requirement does not apply to any payments and other assistance avail- such notice issued subsequent to a able. valid notice to vacate issued by the prior owner of the property. A 90-day [51 FR 6983, Feb. 27, 1986, as amended at 54 notice may be given with, or such no- FR 10667, Mar. 15, 1989] tice may be combined with, but such notice must not be given before, the § 777.22 Relocation assistance advisory services. notice of displacement referred to in paragraph (f) of this section. (a) General. The Postal Service car- (e) Shorter Notice Period, Unusual Cir- ries out an advisory assistance pro- cumstances. An occupant may be re- gram for displaced persons. quired to vacate the property on less (b) Relocation Information. The Postal than 90 days advance written notice if Service must contact each displaced the Postal Service determines that a person to provide an informational 90-day notice is impracticable. An ex- statement outlining the assistance ample of such a situation is when the available to the particular person. If it person’s continued occupancy of the is impracticable to contact the dis- property would constitute a substan- placed persons personally, the informa- tial danger to the person’s health or tional statement must be mailed to the safety. persons, certified mail, return receipt (f) Notice of Displacement. Normally, a requested. notice of displacement will be given at (c) Time of Initial Contact to Provide the time of acquisition or later. Such Relocation Information. The initial con- notice must not be given earlier than tact to provide relocation information the time of contracting, except in the must take place by the following dates: case of acquisitions by eminent domain (1) Where acquisition of the property or by the threat of eminent domain. is to occur as a result of the exercise or Such notice may be given at the time the threat of the exercise of eminent

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domain, at the time of initiation of ne- offered transportation to inspect hous- gotiation or within 30 days thereafter. ing to which they are referred. (2) In any other instance such con- (3) Provide current and continuing tact must be made prior to acquisition information on the availability, pur- and prior to the notice of displacement chase prices, and rental costs of com- or the notice to vacate, but it should parable and suitable commercial and normally not be made prior to con- farm properties and locations, and as- tracting for the acquisition. sist any person displaced from a busi- (d) Service to be Provided. The advi- ness or farm operation to obtain and sory program shall include such serv- become established in a suitable re- ices as may be necessary or appropriate placement location. to: (4) Minimize hardships to displaced (1) Provide current information on persons in adjusting to relocation by the availability, purchase prices, fi- providing counseling, advice about nancing, and rental costs of replace- other sources of assistance that may be ment dwellings. available, and such other help as may be appropriate. (2) For displaced persons eligible for (5) Supply displaced persons with ap- replacement housing payments, ex- propriate information concerning Fed- plain that the displaced person cannot eral, State, and local housing pro- be required to move unless at least one grams, disaster loan and other pro- comparable replacement dwelling is grams administered by the Small Busi- made available. ness Administration, and other Fed- (i) At the request of the displaced eral, State, and local programs offering person, the Postal Service must inform assistance to displaced persons. that person, in writing, of the specific (6) Upon selection of a replacement comparable replacement dwelling used property by a displaced person, the as the basis for the replacement hous- Postal Service may arrange for a rep- ing payment offer, the price or rent resentative to assist the displaced per- used to establish the upper limit of son with necessary arrangements for that offer, the basis for the determina- the move. tion, and the amount of the replacement housing payment to which he or § 777.23 Moving expenses. she may be entitled. (a) Eligibility. (1) Residential dis- (ii) Where feasible, housing must be placed persons are entitled to benefits inspected by the Postal Service rep- under paragraphs (b) and (c) of this sec- resentative prior to its being made tion. available to assure that it is a com- (2) Business and farm displaced per- parable replacement dwelling and sons are entitled to benefits under meets the decent, safe, and sanitary paragraphs (d) through (k) of this sec- standard. The displaced person must be tion. notified that a replacement housing (3) Those business or farm displaced payment will not be made unless the persons who reside on the property replacement dwelling is inspected and where the business or farm operation is determined to be decent, safe, and sani- conducted are eligible for applicable tary. benefits both as residents and as busi- (iii) Whenever possible, minority dis- ness or farm displaced persons, but no placed persons must be given reason- duplicate payments are allowed. able opportunities to relocate to com- (4) Persons who are required to move parable dwellings, not located in an or to move personal property from real area of minority concentration, that property, an interest in which is not are within their financial means. This acquired by the Postal Service, when it policy, however, does not require the is determined by the Postal Service Postal Service to provide a person a that such move is necessary or reason- larger payment than is necessary to able because of the Postal Service’s enable that person to relocate to a having acquired an interest in other comparable replacement dwelling. real property owned or leased by such (iv) All displaced persons, especially persons and on which such persons con- the elderly and handicapped, must be duct a business or farm operation,

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under circumstances where such per- lated expenses. This allowance shall be sons are displaced persons with regard determined according to the applicable to such other real property or would schedule approved by the Federal High- have been displaced persons with re- way Administration. This includes a gard to such other real property had provision that the expense and disloca- they been required to move or to move tion allowance to a person with mini- personal property from such other real mal personal possessions who is in oc- property, are entitled to benefits as cupancy of a dormitory style room residential, business or farm displaced shared by two or more other unrelated persons under paragraphs (a)(1) or (a)(2) persons or a person whose residential of this section. move is performed by an agency at no (5) Eligibility for moving expenses cost to the person shall be limited to does not depend upon the owner’s or $50. tenant’s actual occupancy of the dis- (d) Allowable Expenses, Business and placement real property. Farm Operations. Allowable expenses in- (b) Allowable Expenses, Residential clude: Moves. Allowable moving expenses in- (1) The expenses allowed under para- clude: graphs (b) (2), (4), (5) and (6) of this sec- (1) Transportation of the displaced tion; person and his or her personal prop- (2) Transportation of personal property. Transportation costs are limited erty. Transportation costs are limited to the costs of a move up to a distance to a distance up to 50 miles unless the of 50 miles unless the Postal Service Postal Service makes a finding that re- determines that relocation beyond 50 location beyond 50 miles is justified. miles is justified. (3) Disconnecting, dismantling, re- (2) Packing, crating, unpacking, and moving, reassembling, and reinstalling uncrating of the personal property. relocated machinery, equipment, and (3) Disconnecting, dismantling, re- other personal property, and substitute moving, reassembling, and reinstalling personal property as described in para- relocated household appliances and graph (d)(8) of this section. This in- other personal property. cludes connection to utilities available (4) Storage of the personal property at the replacement site or building and not to exceed 12 months unless the minor modifications to personal prop- Postal Service determines that a erty to adapt it to the replacement site longer period is necessary. or building. Excluded are expenses for (5) Reasonable costs for insurance for providing utilities to or installing util- the replacement value of the personal ities at the replacement site or build- property being moved or stored. ing and expenses for repair, alteration, (6) When determined to be fair and improvement or modification of the re- reasonable by the Postal Service the placement site or building. This exclu- replacement value of property lost, sto- sion includes, but is not limited to, any len, or damaged in the process of mov- repairs, alterations, improvements, or ing (not through the fault or neg- modifications required by local code to ligence of the displaced person, his or bring the building up to standard. her agent, or employee), but only (4) Any license, permit, or certifi- where insurance covering such loss, cation fee required of the displaced per- theft, or damage is not reasonably son by a governmental authority at the available. replacement location. However, this (7) Other moving related expenses payment is limited to the pro rata that are not listed as non-allowable value for the remaining useful life of under paragraph (l)(3) of this section any existing license, permit, or certifi- and which the Postal Service deter- cation. mines to be reasonable and necessary. (5) Reasonable professional services (c) Fixed payment for moving expenses. necessary for planning the move of the residential moves. Any person displaced personal property. Such professional from a dwelling or a seasonal residence services must be approved in advance is entitled to receive an expense and by the Postal Service and shall not ex- dislocation allowance as an alternative ceed the lowest of three acceptable to a payment for actual moving and re- bids.

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(6) Relettering signs and replacing home, time spent searching (based on stationary on hand at the time of dis- reasonable salary or earnings) and fees placement that are made obsolete as a paid to a real estate agent or broker to result of the move. locate a replacement site, exclusive of (7) Actual direct loss of tangible per- any fees or commissions related to the sonal property incurred as a result of purchase of such site. moving or discontinuing the business (10) Other moving-related expenses, or farm operation. The payment will not listed as non-allowable under para- consist of the reasonable costs incurred graph (l)(3) of this section, which the in attempting to sell the item plus the Postal Service determines to be rea- lesser of: sonable and necessary. (i) The fair market value of the item (e) Fixed Payment in Lieu of Moving for continued use at the displacement Expenses, Business Moves. Any displaced site, less the proceeds from its sale. (To business, other than an outdoor adver- be eligible for this payment the claim- tising display business, or a non-profit ant must make a good faith effort to organization, is eligible for a fixed pay- sell the personal property, unless the ment in lieu of actual moving and re- Postal Service determines that such ef- lated expenses. This payment must be fort is not necessary. When payment in an amount equal to the average an- for property loss is claimed for goods nual net earnings of the business at held for sale, the fair market value that location, as computed under para- must be based on the cost of the goods graph (i) of this section, but not less to the business, not the potential sell- than $1,000 nor more than $20,000. For a ing price.); or displaced person to qualify for this (ii) The estimated cost of moving the payment, the Postal Service must de- item no more than 50 miles, but with termine that: no allowance for storage. (1) The business owns or rents per- (8) If an item of personal property sonal property which must be moved in which is used as part of a business or connection with such displacement and farm operation is not moved, is promptly replaced with a substitute for which an expense would be incurred item that performs a comparable func- in such move; and, the business vacates tion at the replacement site, the dis- or relocates from its displacement site; placed person is entitled to payment of and the lesser of: (2) The business cannot be relocated (i) The cost of the substitute item, without a substantial loss of its exist- including installation costs at the re- ing patronage (clientele or net earn- placement site, less any proceeds from ings). A business is assumed to meet the sale. (To be eligible for payments this test unless the Postal Service de- under paragraph (d)(8) of this section, termines that it will not suffer a sub- the claimant must make a good faith stantial loss of its existing patronage; effort to sell the personal property, un- and less the Postal Service determines that (3) The business is not part of a com- such effort is not necessary.) mercial enterprise having more than (ii) The estimated cost of moving and three other entities which are not reinstalling the replaced item, based being acquired by the Postal Service, on the lowest acceptable bid or esti- and which are under the same owner- mate obtained by the Postal Service ship and engaged in the same or simi- for eligible moving and related ex- lar business activities. penses, but with no allowance for stor- (4) The business contributed materi- age. ally to the income of the displaced per- (9) A displaced business or farm oper- son during the 2 taxable years prior to ation is entitled to reimbursement for displacement (see paragraph (h) of this actual expenses, not to exceed $1,000, section). However, the Postal Service which the Postal Service determines to may waive this test for good cause. be reasonable and which are incurred (5) The business is not operated at a in searching for a replacement loca- displacement dwelling solely for the tion. These expenses include transpor- purpose of renting such dwelling to tation, meals and lodging away from others.

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(f) Determining the Number of Busi- (2) Had average annual net earnings nesses. In determining whether two or of at least $1,000; or more displaced legal entities con- (3) Contributed at least 331⁄3 percent stitute a single business which is enti- of the owner’s or operator’s average an- tled to only one fixed payment, all per- nual gross income from all sources. tinent factors shall be considered, in- (4) If the application of the above cri- cluding the extent to which: teria creates an inequity or hardship in (1) The same premises and equipment any given case, the Postal Service may are shared; approve the use of other criteria as de- (2) Substantially identical or inter- termined appropriate. related business functions are carried (i) Average Annual Net Earnings of a out and business and financial affairs Business or Farm Operation. The average are commingled; annual net earnings of a business or (3) The entities are held out to the farm operation are one-half of its net public, and to those customarily deal- earnings before Federal, State, and ing with them, as one business; and local income taxes during the 2 taxable years immediately prior to the taxable (4) The same person or closely related year in which it was displaced. If the persons own, control, or manage the af- business or farm was not in operation fairs of the entities. for the full 2 taxable years prior to dis- (g) Fixed Payment in Lieu of Moving placement, net earnings shall be based Expenses, Farm Operation. Any dis- on the actual period of operation at the placed farm operation may choose a displacement site during the 2 taxable fixed payment in lieu of a payment for years prior to displacement, projected actual moving and related expenses in to an annual rate. Average annual net an amount equal to its average annual earnings may be based upon a different net earnings as computed in accord- period of time when the Postal Service ance with paragraph (i) of this section, determines it to be more equitable. Net but not less than $1,000 nor more than earnings include any compensation ob- $20,000. For a displaced person to qual- tained from the business or farm oper- ify for this payment, the Postal Serv- ation by its owner, the owner’s spouse, ice must determine that the farm oper- and dependents. The displaced person ation contributed materially to the in- shall furnish the Postal Service proof come of the displaced person during the of net earnings through income tax re- two taxable years prior to the displace- turns, certified financial statements, ment (see paragraph (h) of this sec- or other reasonable evidence which the tion). In the case of acquisition of land Postal Service determines is satisfac- which was part of a farm operation be- tory. fore the acquisition, the fixed payment (j) Nonprofit Organizations. Any dis- shall be made only if the Postal Serv- placed nonprofit organization may ice determines that: choose a fixed payment in lieu of a pay- (1) The acquisition of part of the land ment for actual moving and related ex- caused the operator to be displaced penses in an amount of $2,500, if the from the operation on the remaining Postal Service determines that it: land; or (1) Cannot be relocated without a (2) The partial acquisition caused a substantial loss of existing patronage substantial change in the nature of the (membership or clientele). A nonprofit farm operation. organization is assumed to meet this (h) Contributes materially. The term test, unless the Postal Service dem- ‘‘contributes materially,’’ as used in onstrates otherwise; and paragraphs (e) and (g) of this section (2) Is not part of an enterprise having means that, during the 2 taxable years at least one other establishment en- prior to the taxable year in which dis- gaged in the same or similar activity placement occurs, or during such other which is not being acquired by the period as the Postal Service deter- Postal Service. mines to be more equitable, a business (k) Relocation of Outdoor Advertising or farm operation: Signs. The amount of a payment for di- (1) Had average annual gross receipts rect loss of an advertising sign which is of at least $5,000; or personal property is the lesser of:

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(1) The depreciated replacement cost (xi) Increased costs of operation dur- of the sign, as determined by the Post- ing the first two years at the replace- al Service, less the proceeds from its ment site, not to exceed $5,000, for such sale; (To be eligible for payments under items as lease or rental charges, per- this paragraph (k)(1), the claimant sonal or real property taxes, insurance must make a good faith effort to sell premiums, utility charges including the sign, unless the Postal Service de- impact fees or one time assessments termines that such effort is not nec- for anticipated heavy utility usage. essary.) or (xii) Other items that the Postal (2) The estimated cost of moving the Service considers essential to the rees- sign, no more than 50 miles, but with tablishment of the business. no allowance for storage. (2) Non-allowable expenses. Following (l) Payment for actual reasonable rees- is a non-exclusive listing of tablishment expenses, nonresidential restablishment expenditures not con- moves. In addition to the payments sidered to be reasonable, necessary or available as allowable expenses for otherwise allowable. nonresidential moves, a small business, (i) Purchase of capital assets such as farm or non-profit organization may be office furniture, filing cabinets, ma- eligible to receive a payment, not to chinery, or trade fixtures. exceed $10,000 for expenses actually in- (ii) Purchase of manufacturing mate- curred in relocating and reestablishing rials, production supplies, product in- such small business, farm or non-profit ventory, or other items used in the organization at a replacement site. normal course of the business oper- (1) Allowable expenses. Reestablish- ation. ment expenses must be reasonable and (iii) Interior or exterior refurbish- necessary, as determined by the Postal ment at the replacement site which are Service. They may include the fol- for cosmetic purposes only. lowing: (iv) Interest on money borrowed to (i) Repairs or improvements to the make the move or purchase the re- replacement real property as required placement property. by federal, state, local law, code or or- (v) Payment to a part-time business dinance. in the home which does not contribute (ii) Modifications to the replacement materially to the household income. property to accommodate the business (vi) Payment to a person whose sole operation or make replacement struc- business at a replacement dwelling is tures suitable for occupancy. the rental of such dwelling to others. (iii) Construction and installation (m) General Provisions—(1) Self moves. costs not to exceed $1,500 for exterior If the displaced person elects to take signing to advertise the business. full responsibility for all or a part of (iv) Installation of security or fire the move, the Postal Service may ap- protection devices. prove a payment for the person’s mov- (v) Provision of utilities from right- ing expenses in an amount not to ex- of-way to improvements on the re- ceed the lowest of three bids acceptable placement site. to the Postal Service. Bids may be ob- (vi) Redecoration or replacement of tained by either the displaced person or soiled or worn surfaces at the replace- the Postal Service. ment site, such as paint, panelling or (2) Transfer of Ownership. Upon re- carpeting. quest by the Postal Service and in ac- (vii) Licenses, fees and permits when cordance with applicable law, the dis- not paid as part of the moving ex- placed person may transfer to the Post- penses. al Service ownership of any personal (viii) Feasibility surveys, soil testing property that is not to be moved, sold, and marketing studies. or traded-in by executing a disclaimer (ix) Advertisement of replacement lo- of all rights or interest in the property. cation, not to exceed $1,500 (3) Non-Allowable Expenses. Except as (x) Professional services in connec- specifically otherwise provided herein, tion with the purchase or lease of a re- a displaced person is not entitled to placement site. payment for:

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(i) The cost of moving any structure ment dwelling to provide a total or other real property improvement. amount equal to the lesser of: (ii) Loss of goodwill. (A) The reasonable cost of a com- (iii) Loss of profits. parable replacement dwelling as deter- (iv) Loss of trained employees. mined by paragraph (c) of this section; (v) Any additional operating expenses or of a business or farm operation caused (B) The purchase price of a decent, by operating in a new location. safe and sanitary replacement dwelling (vi) Personal injury. actually purchased and occupied by the (vii) Any legal fee or other cost for displaced person; plus preparing a claim for a relocation pay- (ii) Interest Cost (see paragraph (d) of ment or for representing the displaced this section); plus person before the Postal Service. (iii) Incidental Expenses (see para- (viii) Expenses for searching for a re- graph (h) of this section). placement dwelling. (2) The benefits in paragraph (b)(1) of (ix) Costs for storage of personal this section, are limited to a maximum property on real property owned or payment of $22,500. leased by the displaced person. (3) The benefits in paragraph (b)(1) of this section, are available only if a de- [51 FR 6983, Feb. 27, 1986, as amended at 52 cent, safe and sanitary replacement FR 48029, Dec. 17, 1987; 54 FR 10667, Mar. 15, dwelling is purchased within 12 months 1989] after the latter of: (i) The date of acquisition or, in the § 777.24 Replacement housing payments. case of condemnation, the date the required amount is deposited in a court (a) Residential displaced persons are for the displaced person’s benefit, or eligible for replacement housing pay- (ii) The date the person moves from ments as follows: the displacement dwelling. (1) Residential displaced persons who (c) Determining the Cost of a Com- lawfully and continuously owned and parable Replacement Dwelling. The cost occupied a displacement dwelling for of a comparable replacement dwelling not less than 180 days prior to the initi- for purposes of benefits to be paid to ation of negotiations are entitled to 180 day owner occupants will be deter- the benefits set out in paragraph (b) of mined by applying the following: this section. Such displaced persons (1) If available, at least three rep- may alternately choose the benefits resentative comparable replacement under paragraph (f) of this section. dwellings must be examined and the (2) Residential displaced persons who payment offer computed on the cost of lawfully and continuously owned and the fair market value of the dwelling occupied, and residential displaced per- most closely comparable to the dis- sons who were tenants and lawfully and placement dwelling. continuously occupied, a displacement (2) To the extent, feasible, com- dwelling for not less than 90 days prior parable replacement dwellings will be to the initiation of negotiations are en- selected from the neighborhood in titled to the benefits set out in para- which the displacement dwelling was graph (e) of this section. located. If this is not possible, com- (3) Where the replacement housing parable replacement dwellings will be payment provided hereunder does not selected from nearby or similar neigh- provide for housing within the finan- borhoods where housing costs are simi- cial means (see § 777.13(j)) of the dis- lar. placed person, see § 777.27, Last Resort (d) Increased Mortgage Interest Costs. Housing. The amount to be paid to a displaced (b) Benefits for 180 Day Owner Occu- 180 day owner occupant for increased pants. Displaced persons eligible under mortgage interest costs is the amount, paragraph (a)(1) of this section are en- if any, by which the present value of titled to benefits as set out below: the interest on the mortgage loan(s) on (1) An amount which is the sum of: the replacement dwelling plus any (i) The amount which must be added other debt service costs exceeds the to the acquisition cost of the displace- present value of the interest on the

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mortgage loan(s) on the displacement itary replacement dwelling is pur- dwelling plus purchaser’s points and chased or rented within 12 months loan origination fees, subject to the after the latter of: following: (i) The date of acquisition or, in the (1) The payment must be based only case of condemnation, the date the re- on bona fide mortgages that were a quired amount is deposited in the court valid lien on the displacement dwelling for the displaced person’s benefit, or for at least 180 days prior to the initi- (ii) The date the person moves from ation of negotiations. All such mort- the displacement dwelling. gages on the displacement dwelling (f) Rental Assistance. The rental as- must be used to compute the payment. sistance benefits, not to exceed $5,250, (2) The payment must be based on for 90 day owner occupants and tenants the unpaid mortgage balance on the will be computed as follows: displacement dwelling or the new (1) The amount which must be added mortgage amount, whichever is less. to 42 times the average monthly rental (3) The payment must be based on paid at the displacement dwelling (or, the remaining term of the mortgage on if the displaced person is an owner oc- the displacement dwelling or the ac- cupant, the fair market rental value tual term of the new mortgage, which- had the displacement dwelling been ever is shorter. rented) for the three-month period (4) The new mortgage must be a bona prior to displacement to provide a total fide mortgage and its interest rate amount equal to the lesser of: must not exceed the prevailing interest (i) 42 times the reasonable monthly rate currently charged by mortgage rental of a comparable replacement lending institutions in the area in dwelling; or which the replacement dwelling is lo- (ii) 42 times the actual monthly rent- cated. al cost of the decent, safe, and sanitary (5) The discount rate used to compute dwelling actually rented and occupied the present value of the increased in- by the displaced person. terest cost must be the prevailing in- (2) If utilities are included in either terest rate paid on demand savings de- the replacement dwelling or the dis- posits by commercial banks in the area placement dwelling rent, appropriate in which the replacement dwelling is utilities must be factored into both located. rentals. If utilities are not included in (6) Purchaser’s points and loan origi- either monthly rental then the pay- nation fees, but not seller’s points, are ment will be computed using the base reimbursable to the extent they are rental rates. not paid as incidental expenses, they (3) If, in the opinion of the Postal do not exceed rates normal to similar Service, the monthly rental at the dis- real estate transactions in the area, placement dwelling is significantly and the Postal Service determines below the fair market rent of the dis- them to be necessary. The computation placement dwelling, such fair market of such points and fees shall be based rent must be used in computing the on the unpaid mortgage balance on the rental assistance payment. displacement dwelling, or the new (4) The payment under this section mortgage amount, whichever is less. must be disbursed in a lump-sum (e) Benefits for 90 Day Owner Occupant amount unless the Postal Service de- and Tenants. Displaced persons eligible termines on a case-by-case basis, for under paragraph (a)(2) of this section good cause, that the payment should be are entitled to benefits as set out made in installments. Where the rental below: assistance payment exceeds $5,250 (1) Rental assistance benefits, as set under the provisions of Last Resort out in paragraph (f) of this section or Housing, (§ 777.27), installment pay- downpayment assistance benefits, as ments or payments through escrow ac- set out in paragraph (g) of this section. counts may be considered. (2) The benefits in paragraph (e)(1) of (g) Downpayment assistance. Down- this section, are limited to $5,250. payment assistance, not to exceed (3) The benefits in (e)(1) above are $5,250, is available to 90 day owner oc- available only if a decent, safe and san- cupants and 90 day tenants. This $5,250

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amount may be considered to include (b) Multiple Occupants of One Dis- the full amount of the required down- placement Dwelling. If two or more oc- payment and incidental expenses. cupants of the displacement dwelling (h) Incidental Expenses. Incidental ex- move to separate replacement dwell- penses covered under paragraph ings, each occupant is entitled to a rea- (b)(1)(iii) or (g) of this section are those sonable prorated share, as determined reasonable costs actually incurred by by the Postal Service, of any reloca- the displaced person incident to the tion payments that would have been purchase of a replacement dwelling and made if the occupants moved together customarily paid by the buyer (not to to a comparable replacement dwelling. exceed the costs of such for a com- However, if the Postal Service deter- parable replacement dwelling). They mines that two or more occupants include: maintained separate households within (1) Legal, closing, and related costs, the same dwelling, such occupants including those for title search and in- have separate entitlements to reloca- surance, preparing conveyance instruments, notary fees, preparing surveys tion payments. and plats, and recording fees. (c) Mixed Use and Multi-Family Prop- (2) Lender, FHA, or VA appraisal erties Acquired. If the displacement fees. dwelling was part of a property that (3) FHA or VA application fee. contained another dwelling unit or (4) Certification of structural sound- space used for non-residential purposes, ness when required by the lender. or if it is located on a lot larger than (5) Credit report. that typical for residential purposes, (6) Owner’s and mortgagee’s evidence only that portion of the acquisition or assurance of title. payment which is actually attributable (7) Escrow agent’s fee. to the displacement dwelling and site (8) State revenue or documentary can be considered its acquisition cost stamps, sales or transfer taxes. when computing the price differential. (9) Such other costs as the Postal (d) Disaster-Related Insurance Pro- Service determines to be incidental to ceeds. To the extent necessary to avoid the purchase. duplicate compensation, the amount of any insurance proceeds received by a [51 FR 6983, Feb. 27, 1986, as amended at 52 FR 48029, Dec. 17, 1987] person in connection with a disaster related loss to the displacement dwelling § 777.25 Additional rules for replace- must be included in the acquisition ment housing payments. cost of the displacement dwelling when (a) Multiple Owners. When a single computing the price differential. family dwelling is owned by more than (e) Inspection of Replacement Dwelling. one person and occupied by only some Before making a replacement housing of the 180 day owners (for example, payment or releasing a payment from when the dwelling is owned by an es- escrow, the Postal Service must in- tate and only one of the heirs is in oc- spect the replacement dwelling and de- cupancy), the occupant(s) is (are) eligi- termine that it is a decent, safe, and ble to receive a maximum total price sanitary dwelling. differential which is the lesser of: (f) Purchase of Replacement Dwelling. (1) The difference between (i) the rea- A displaced person is considered to sonable cost of a comparable replace- have met the requirement to purchase ment dwelling, as determined under a replacement dwelling if the person § 777.24(c) and (ii) the acquisition cost has purchased an existing dwelling; of the displacement dwelling; or purchased and rehabilitated or moved (2) The difference between (i) the oc- and restored an existing dwelling; or cupant’s share of the acquisition cost constructed a new dwelling, provided in of the displacement dwelling and (ii) each instance the dwelling is deter- the purchase price of a decent, safe, mined to be decent, safe and sanitary. and sanitary replacement dwelling actually purchased and occupied by the displaced person.

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(g) Conversion of Payment. A displaced (3) Additional costs, if necessary, in- person who initially rents a replace- curred to make the unit a decent, safe, ment dwelling and receives a rental as- and sanitary replacement dwelling; and sistance payment may, within the re- (4) The cost of the replacement site, quired 12 month eligibility period, pur- not to exceed the cost of a comparable chase a decent, safe and sanitary re- available and suitable replacement placement dwelling. In such case, he or site. she is eligible to revise his or her origi- (j) 90 Day Owner/Retention of Displace- nal claim, and claim any additional as- ment Dwelling. A 90 day owner occupant sistance for which he or she was origi- who retains ownership of his or her nally eligible. However, any portion of dwelling or the right to remove his or the rental assistance payment that has her dwelling may receive the benefits been disbursed must be deducted from as if he or she were a 180 day owner oc- the resultant replacement housing pay- cupant subject, however, to a limita- ment or downpayment assistance pay- tion of $5,250 on maximum benefits in ment. lieu of the $22,500 limitation set out in paragraph § 777.24(b)(2). (h) Payment After Death. A replacement housing payment is personal to [51 FR 6983, Feb. 27, 1986, as amended at 54 the displaced person. Upon his or her FR 10668, Mar. 15, 1989] death, the undisbursed portion of any such payment shall not be paid to the § 777.26 Mobile homes. heirs or assigns, except that: (a) Moving Expenses. Displaced per- (1) The amount attributable to the sons who are occupants of mobile displaced person’s period of actual oc- homes are eligible for moving expenses cupancy of the replacement housing under § 777.23 subject to the following: will be paid. (1) If the person owns the mobile (2) The full payment must be dis- home, moving expenses may, at the owner’s option, include any reasonable bursed in any case in which a member costs incurred to move the mobile of a displaced family dies and other home to a replacement site, plus the family members continue to occupy reasonable cost of disassembling, mov- the replacement dwelling selected in ing, and reassembling any attached ap- accordance with these regulations. purtenances (such as porches, decks, (3) Any portion of a replacement skirting, and awnings) which were not housing payment necessary to satisfy acquired, anchoring of the unit, and the legal obligation of an estate in con- utility ‘‘hook-up charges.’’ nection with the selection of a replace- (2) If the person rents the mobile ment dwelling by or on behalf of a de- home, the Postal Service may allow ceased person must be disbursed to the the person moving expense benefits for estate. moving the mobile home as if the per- (i) 180 Day Owner Retention of Dis- son were an owner of the mobile home placement Dwelling. If a 180 day owner under paragraph (a)(1) of this section. occupant retains ownership of his or (3) If costs of moving a mobile home her dwelling or the right to move his or are paid as moving expenses under her dwelling from the displacement paragraph (a)(1) or (2) of this section, site, and he or she moves it and reoccu- the person may not receive housing as- pies it on a replacement site, the cost sistance benefits hereunder, other than of the actual replacement dwelling to any benefits to which they are entitled be computed for purposes of that are limited to the site of the mo- § 777.24(b)(1)(i)(A) (not to exceed the bile home. purchase price of a comparable replace- (4) Displaced occupants of mobile ment dwelling) will be the sum of: homes are eligible for moving expenses (1) The expenses of moving and re- for personal property other than the storing the retained dwelling to a con- mobile home and its appurtenances, dition comparable to that prior to the but only to the extent the Postal Serv- move; and ice does not pay the costs of moving (2) The salvage or other value de- the mobile home (either as moving ex- ducted from the acquisition cost for penses or replacement housing pay- the retained ownership; and ments or, if it does pay such costs, the

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personal property is of a type that is § 777.27 Last resort housing. customarily moved separately from the (a) Basic Determination to Provide Last mobile home.) Resort Housing. A displaced person can- (b) Replacement Housing Payments. Displaced persons who are 180 day or 90 not be required to move from his or her day occupants of mobile homes qualify dwelling unless at least one com- for replacement housing payments parable replacement dwelling is made under § 777.24 subject to the following: available to him or her which is within (1) If the displaced person owns the his or her financial means. When such mobile home and owns the site, the comparable replacement dwelling is person is eligible for benefits under ei- not available, additional measures may ther § 777.24 (b) or (e). be taken to provide for ‘‘last resort’’ (2) If the displaced person rents the housing for eligible displaced persons. mobile home and rents the site the per- (b) Basic Rights of Persons to be Dis- son is eligible for benefits under placed. The provisions of this section § 777.24(e). do not deprive any displaced person of (3) If the displaced person rents the any rights the person may have under mobile home and owns the site the per- these regulations such as the right to son is eligible for benefits under accept the maximum replacement § 777.24(e), with regard to the mobile housing payment available under these home and to benefits under § 777.24(b) regulations and to move to a decent, with regard to the site, subject to a safe and sanitary replacement dwelling limitation on the home and site bene- even if such dwelling is beyond the per- fits combined of $22,500. (Persons who son’s financial means. voluntarily sell mobile home sites are (c) Methods of Providing Replacement not displaced persons and are not enti- Housing. The Postal Service has broad tled to benefits under Subpart B. See latitude in implementing this section, § 777.13(e)(2)(viii)). but implementation must be on a rea- (4) If the displaced person owns the sonable cost basis. The Postal Service mobile home and rents the site the per- may provide last resort housing using son is eligible for benefits under either the following methods: § 777.24 (b) or (e) with regard to the mo- (1) Rehabilitation of and/or additions bile home and to benefits as a tenant to an existing replacement dwelling. under § 777.24(e) with regard to the site, (2) The construction of a new replace- subject to a limitation on home and ment dwelling. site benefits combined of $5,250. (3) The provision of a direct loan (c) Special Rules for Mobile Homes. (1) which requires regular amortization or In computing replacement housing deferred repayment. Terms of such payments for mobile home owners loan will be at the discretion of the under paragraph (b) of this section, Postal Service. apply the terms of § 777.25 (i) and (j) as (4) A replacement housing payment appropriate, to transactions involving in excess of the $5,250 and $22,500 limi- moving the mobile home to a new site. tations contained in § 777.24. A rental (2) The acquisition of a portion of a subsidy under this section may be pro- mobile home park may leave a remain- vided in installments. der that is not adequate to continue (5) The relocation and any needed re- the operation of the park. When the habilitation of a replacement dwelling. Postal Service determines that its ac- (6) The purchase or lease of land and/ quisition of the real property has had or a replacement dwelling by the Post- this effect and that for this reason a al Service and subsequent sale or lease mobile home occupant located on the to, or exchange with, a displaced per- remaining part of the property is re- son. quired to move, such occupant shall be (7) The removal of barriers to the considered a displaced person under handicapped. these regulations and shall be entitled (8) Any other method determined by to such benefits hereunder as the per- the Postal Service to be reasonable. son would otherwise qualify. (d) Proof of Financial Need. Last Re- [51 FR 6983, Feb. 27, 1986, as amended at 52 sort Housing benefits exceeding the FR 48029, Dec. 17, 1987] limitations under § 777.24(b)(2) and

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§ 777.24(e)(2) will not be paid unless re- the purpose of determining the eligi- quired to provide housing within the bility or the extent of eligibility of any displaced person’s financial means. To person for assistance under the Social establish financial means, the dis- Security Act or any other Federal Law. placed person must furnish the Postal (f) Certification. Certification that a Service proof of gross monthly income person is displaced will be provided any through income tax returns, certified agency requiring such information to financial statements or other reason- assist that person under any Federal able evidence which the Postal Service law or program. determines is satisfactory. (g) Advance of Funds. If the displaced [51 FR 6983, Feb. 27, 1986, as amended at 52 person cannot arrange for the acquisi- FR 48029, Dec. 17, 1987] tion of a replacement property because of financial problems and the problems § 777.28 Claims and appeals. would be solved by an advance of funds, (a) Preparation of Claim. The reloca- the Postal Service may determine the tion representative should assist eligi- estimated amount of the actual claim ble displaced persons in the prepara- and authorize an advance of that tion of claims for moving assistance amount or a portion thereof. The dis- and relocation housing assistance. Pre- placed person will be fully informed in liminary review should be conducted in writing that his or her final claim will the field by the relocation representative with the displaced person, to pre- then be subject to adjustment. Advance clude technical difficulties in proc- payments should not be made to per- essing the claim at a higher level. sons with a history of financial irre- (b) Documentation. Any claim for a responsibility. location payment must be supported by (h) Money Owed to the Postal Service. such documentation as may be re- In cases of Postal Service leasing the quired to support the claim, for exam- acquired property to a displaced per- ple the length of occupancy at the dis- sons, or in cases of advance moving placement dwelling, the rent paid at cost payments, any monies due the the displacement dwelling, expenses in- Postal Service by the displaced person curred in relocating, etc. A displaced and not paid before the remainder of person must be provided reasonable as- the relocation payments are made sistance to complete and file any re- must be deducted from such payments quired claim. and the relocation file so documented. (c) Time for Filing. All claims must be (i) Notice of Denial of Claim. If the filed with the Postal Service within 18 Postal Service disapproves all or part months after the date of the actual of a payment claimed, of refuses to move from the displacement property. consider the claim on its merits be- (d) Review, Approval and Payment. cause of untimely filing or other The Postal Service will review claims grounds, it must promptly notify the within 60 days of submission and ap- claimant in writing of the determina- prove or disapprove payment. Upon ap- tion, the basis for the determination, proval or partial approval of the dis- and the procedures for appealing the placed person’s claim, the Postal Serv- determination. ice will promptly authorize payment of the approved amount. The certification (j) Appeal Procedure. If a displaced that the claimant has occupied decent, person wishes to file an appeal: safe, and sanitary housing must be (1) The appeal must be in writing. completed prior to final payment of re- (2) The appeal must be directed to placement housing payments. the General Manager, Real Estate Divi- (e) Relocation Payments Not Considered sion, and must set forth the displaced as Income. Upon approval of the claim person’s reasons for the appeal. (The and delivery of the relocation payment, General Manager shall not have taken the displaced person must be advised part in the decision which led to the that no relocation payment made appeal. Appeals misdirected to others under these procedures shall be consid- must be forwarded immediately to the ered as income for the purpose of the General Manager with notification of Internal Revenue Code of 1954, or for the forwarding to the appellant.)

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(3) The appeal must be submitted acquire real property through the exer- within 60 days after the displaced per- cise or the threat of the exercise of son receives written notification of the eminent domain. This policy does not, Postal Service’s original determination however, prevent the Postal Service concerning the displacee’s claim. The from occasionally entering into mutu- Postal Service may extend this time ally agreeable condemnation pro- limit for good cause. ceedings with an owner, where price is (k) Right of Representation. A dis- not an issue, and for such purposes as placed person has a right to be rep- to clear title or to acquire property resented by legal counsel or other rep- from certain elected officials. For the resentative in connection with his or purposes of this section, the Postal her appeal, but solely at the person’s Service does not consider such vol- own expense. untary and mutually agreeable uses of (l) Review of Files by Appellant. The condemnation proceedings as the exer- Postal Service must permit a person to cise or the threat of the exercise of inspect and copy all materials perti- eminent domain. The following regula- nent to his or her appeal, except mate- tions apply only to acquisitions by the rials which are confidential. Such in- exercise or the threat of the exercise of spection will be permitted as allowed eminent domain: under the Freedom of Information Act, (1) Notice to Owner. As soon as fea- 39 CFR Part 265. sible after deciding to acquire a spe- (m) Scope of Review. In deciding an cific property through the exercise of appeal, the Postal Service must con- eminent domain, the Postal Service sider all pertinent justification and must notify the owner of its intent to other material submitted by the dis- acquire the property. placed person and all other available (2) Expeditious Negotiations. The Post- information that is needed to ensure a al Service must make every reasonable fair and full review of the appeal. effort to acquire real property expedi- (n) Determination and Notification tiously by negotiation. After Appeal. Promptly after receipt of (3) Appraisal and Invitation to Owner. all supporting information submitted Before the initiation of negotiations, by the appellant, the General Manager, the real property shall be appraised in Real Estate Division, must make a accordance with Postal Service ap- written determination on the appeal, praisal standards as outlined in RE–1 including the basis on which the deci- and the owner or the owner’s des- sion was made, and furnish the appel- ignated agent shall be given an oppor- lant a copy. If the full relief requested tunity to accompany the appraiser dur- is not granted at the Service Center ing the appraiser’s inspection of the level, the General Manager, Real Es- property. tate Division, must advise the person (4) Establishment of Offer of Just Com- of his or her right to appeal the deci- pensation. Prior to the initiation of ne- sion to the Director, Office of Real Es- gotiations (see § 777.13(k) for definition) tate. The rules stated here for appeals the Postal Service must establish an to the General Manager apply as well amount which it believes is just com- as to appeals to the Director, Office of pensation for the real property rights Real Estate. be acquired. The amount must not be [51 FR 6983, Feb. 27, 1986, as amended at 54 less than the approved appraisal of the FR 10668, Mar. 15, 1989] fair market value, including damages or benefits to the remaining property. Subpart C—Acquisition Appraisers shall not give consideration to, or include in their real property ap- § 777.31 Acquisition procedures. praisals, any allowances for the bene- (a) Policy; Application of Section. The fits provided by title II of the Act. Postal Service, as a matter of policy, (5) Summary Statement. Promptly acquires interests in real property after determining fair market value, through voluntary agreements with the Postal Service shall make a writ- owners. Only under unusual and com- ten offer to acquire the property for pelling circumstances, and on a case- the full amount believed to be just by-case basis, does the Postal Service compensation. Along with the written

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purchase offer, the owner must be offer is warranted, the Postal Service given a written statement of the basis must promptly reestablish just com- for the offer of just compensation. This pensation and offer the revised amount statement must include: to the owner in writing. (i) A statement of the amount offered (9) Contracts and Options. Contracts as just compensation. In the case of a to purchase shall cover only those partial acquisition, the compensation items related to the acquisition of the for the real property to be acquired and property, and not incorporate provi- the compensation for damages, if any, sions for making payments for reloca- must be separately stated. tion costs or related costs under title II (ii) The location and description of of these regulations. the real property and the interest(s) to (10) Title II Benefits Not To Be Consid- be acquired. ered. In the event of condemnation, es- (iii) An identification of the build- timated compensation shall be deter- ings, structures, and other improve- mined solely on the basis of the ap- ments (including removable building praised value of the real property with equipment and trade fixtures) which no consideration being given to or ref- are considered part of the real property erence contained therein to the pay- for which the offer of just compensa- ments to be made under title II. tion is made. Where appropriate, the (11) Coercive Action. The Postal Serv- statement shall identify and separately ice shall not advance the time of con- held ownership interest in the improve- demnation, or defer negotiations or ment(s), for example, a tenant-owned condemnation, or the deposit of funds improvement. with the court, or take any other coer- (6) Basic Negotiation Procedures. The cive action in order to induce an agree- Postal Service must make every rea- ment on the price to be paid for the sonable effort to contact the owner or property. the owner’s representative and: (12) Inverse Condemnation. If the Post- (i) Discuss the Postal Service’s offer al Service intends to acquire any inter- to purchase the property including the est in real property by exercise of the basis for the offer of just compensa- power of eminent domain, it must in- tion, and; stitute formal condemnation pro- (ii) Explain Postal Service acquisi- ceedings and not intentionally make it tion policies and procedures including necessary for the owner to institute the provisions for the payment of inci- proceedings to prove the fact of the dental expenses as described under taking of the real property. § 777.33. (13) Payment Before Taking Possession. (7) Opportunity to Consider Offer. The Before requiring the owner to sur- owner must be given a reasonable op- render possession of the real property, portunity to consider the Postal Serv- the Postal Service must either: ice’s offer, to present material which (i) Pay the agreed purchase price to he or she believes is relevant to deter- the owner; or mining the value of the property, and (ii) In the case of a condemnation to suggest modification in the proposed proceeding, deposit with the court for terms and conditions of the purchase. the benefit of the owner an amount not The Postal Service must consider the less than the amount of the approved owner’s presentation. appraised value of the property or the (8) Updating Offer of Just Compensa- amount of the award of compensation tion. If the information presented by in the condemnation proceeding for the the owner or a material change in the property. character or condition of the property (14) Right-of-Entry. With the prior ap- indicates the need for new appraisal in- proval of the owner, the Postal Service formation, or if a significant delay has may obtain a right-of-entry before occurred since the time of the ap- making payment to the owner. praisal(s) of the property, the Postal Service must have the appraisal(s) up- § 777.32 Acquisition of tenant-owned dated or obtain a new appraisal(s). If improvements. the latest appraisal information indi- (a) Acquisition of Improvements. When cates that a change in the purchase acquiring any interest in real property,

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the Postal Service must acquire at (b) Direct Payment. Whenever feasible least an equal interest in all buildings, the Postal Service must pay these structures, or other improvements lo- costs directly and thus avoid the need cated upon the real property. This for an owner to pay such costs and then must include any improvement of a seek reimbursement from the Postal tenant owner who has the right or obli- Service. gation to remove the improvement at (c) Certain Litigation Expenses. The the expiration of the lease term. owner of the real property acquired (b) Special Conditions. Payment for must be reimbursed any reasonable ex- tenant-owned improvements will be penses, including reasonable attorney, made to the tenant only if he or she appraisal, and engineering fees which meets the following conditions: the owner actually incurred because of (1) In consideration for the payment a condemnation proceeding if: the tenant-owner assigns, transfers, (1) The final judgment of the court is and releases to the Postal Service all of that the Postal Service cannot acquire the tenant-owner’s rights, title, and in- the real property by condemnation; or terests in the improvement; (2) The condemnation proceeding is (2) The owner of the real property on which the improvement is located dis- abandoned by the Postal Service other claims all interest in the improvement; than under an agreed-upon settlement; and or (3) The payment does not result in (3) The court having jurisdiction ren- the duplication of any compensation ders a judgment in favor of the owner otherwise authorized by law. in an inverse condemnation proceeding (c) Preservation of Tenant’s Rights. or the Postal Service effects a settle- Nothing in this section shall be con- ment of such a proceeding. strued to deprive the tenant-owner of any rights to reject payment under Subpart D—Voluntary Acquisitions this section and to obtain payment for such property interests in accordance § 777.41 Acquisition procedures. with other applicable law. (a) Voluntary Acquisitions. Acquisition § 777.33 Expenses incidental to trans- rules for voluntary purchases are set fer of title to the Postal Service. out in Handbook RE–1, Realty Acquisi- tion and Management and cover such (a) Reimbursement. When property is areas as appraisal and negotiation pro- acquired through the exercise or the cedures. threat of the exercise of eminent domain, the owner shall be reimbursed (b) Tenant-Owned Improvements. In for all reasonable expenses he or she general the Postal Service deals exclu- necessarily incurred in conveying the sively with the fee owner on the acqui- real property to the Postal Service for: sition of all real property interest at (1) Recording fees, transfer taxes, the site. The Postal Service may, how- documentary stamps, evidence of title, ever, in exceptional cases deal directly boundary surveys, legal descriptions of with a tenant on a leasehold improve- the real property, and similar inci- ments matter. Should the Postal Serv- dental expenses. However, the Postal ice acquire the fee interest without ac- Service will not pay costs solely requiring rights in a leasehold improve- quired to perfect the owner’s title to ment under circumstances in which the the real property. tenant would be entitled to compensa- (2) Penalty costs and other charges tion under § 777.32 of this part, if the for prepayment of any preexisting re- acquisition were by eminent domain or corded mortgage, entered into in good the under threat thereof, the tenant faith, encumbering the real property. will be entitled to the benefits that (3) The pro rata portion of any pre- would, under such circumstances, have paid real property taxes which are allo- been paid under § 777.32 of this part, un- cable to the period after the Postal less the tenant has formally disclaimed Service obtains title to the property or further right in the real property im- effective possession of it, whichever is provement beyond the time of the expi- earlier. ration of his or her tenancy.

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Subpart E—Donations also implement applicable provisions of section 401 of the Intergovernmental § 777.51 Acceptance of donations. Cooperation Act of 1968, which the Nothing in these regulations shall Postal Service follows as a matter of prevent a person from making a gift or policy. donation of real property or any part (b) These regulations are intended to thereof, or any interest therein, or of foster an intergovernmental partner- any compensation paid therefor, to the ship and a strengthened Federalism by Postal Service. The Postal Service may relying on state processes and on state, obtain an appraisal of the real property areawide, regional and local coordina- for income tax or other purposes if the tion for review of proposed direct fed- owner thereof requests the Postal Serv- eral development projects. ice to do so. (c) These regulations are not intended to create any right or benefit PART 778—INTERGOVERNMENTAL enforceable at law by a party against REVIEW OF POSTAL SERVICE FA- the Postal Service or its officers. (d) These regulations implement Ex- CILITY ACTIONS ecutive Order 12372 and are adopted under the Postal Reorganization Act Sec. 778.1 What is the purpose of these regula- rather than the statute and Executive tions? Order listed in paragraph (a) of this 778.2 What definitions apply to these regu- section to the extent the statute and lations? Executive Order do not apply to the 778.3 What categories of facility project ac- Postal Service under 39 U.S.C. 410(a). tions of the Postal Service are subject to these regulations? § 778.2 What definitions apply to these 778.4 What are the Postal Service’s general regulations? responsibilities under the Order? 778.5 What is the Postal Service’s obligation Order means Executive Order 12372, with respect to federal interagency co- issued July 14, 1982, and amended April ordination? 8, 1983, and titled ‘‘Intergovernmental 778.6 What procedures apply to a state’s Review of Federal Programs.’’ choice of facility action categories under State means any of the 50 states, the these regulations? 778.7 How does the Postal Service commu- District of Columbia, the Common- nicate with state and local officials con- wealth of Puerto Rico, the Common- cerning the Postal Service’s facility wealth of the Northern Mariana Is- project actions? lands, Guam, American Samoa, the 778.8 How does the Postal Service provide U.S. Virgin Islands, or the Trust Terri- states an opportunity to comment on tory of the Pacific Islands. proposed facility project actions? 778.9 How does the Postal Service receive § 778.3 What categories of facility and respond to comments? project actions of the Postal Service 778.10 How does the Postal Service make ef- are subject to these regulations? forts to accommodate intergovernmental concerns? The Postal Service publishes in the 778.11 What are the Postal Service’s obliga- FEDERAL REGISTER a list of its cat- tions in interstate situations? egories of facility project actions that 778.12 [Reserved] are subject to these regulations. 778.13 May the Postal Service waive any provision of these regulations? § 778.4 What are the Postal Service’s AUTHORITY: 39 U.S.C. 401. general responsibilities under the Order? SOURCE: 48 FR 29376, June 24, 1983, unless otherwise noted. (a) The Postal Service provides opportunities for consultation by elected § 778.1 What is the purpose of these officials of those state and local gov- regulations? ernments that would be directly af- (a) The regulations in this part im- fected by the Postal Service’s facility plement Executive Order 12372, ‘‘Inter- project actions. governmental Review of Federal Pro- (b) If a state adopts a process under grams,’’ issued July 14, 1982 and amend- the Order to review and coordinate pro- ed on April 8, 1983. These regulations posed direct Federal development

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projects, the Postal Service, to the ex- of changes in their facility action cat- tent permitted by law: egory selections. (1) Uses the state process to deter- (d) The Postal Service uses a state’s mine official views of state and local process as soon as feasible, after the elected officials; Postal Service is notified of the state’s (2) Communicates with state and selections. local elected officials as early in a facility project action’s planning cycle § 778.7 How does the Postal Service as is reasonably feasible to explain spe- communicate with state and local officials concerning the Postal Serv- cific plans and actions; ice’s facility project actions? (3) Makes efforts to accommodate state and local elected officials’ con- (a) [Reserved] cerns with proposed direct Federal de- (b) The Postal Service provides no- velopment projects that are commu- tice directly to affected state, nicated through the state process; and areawide, regional, and local entities (4)–(5) [Reserved] in a state of a proposed direct Federal (6) Seeks the coordination of views of development project if: affected state and local elected offi- (1) The state has not adopted a proc- cials in one state with those of another ess under the Order; or state when a proposed direct Federal (2) The development project involves development project has an impact on a facility project action category not interstate metropolitan urban centers selected for the state process. or other interstate areas. This notice may be made by publication in local newspapers and/or by let- § 778.5 What is the Postal Service’s ob- ter. ligation with respect to federal interagency coordination? § 778.8 How does the Postal Service The Postal Service, to the extent provide states an opportunity to comment on proposed facility practicable, consults with and seeks project actions? advice from other federal departments and agencies substantially affected by (a) Except in unusual circumstances, Postal Service facility project actions the Postal Service gives state processes covered under these regulations. or directly affected state, areawide, regional and local officials and entities: § 778.6 What procedures apply to a (1) [Reserved] state’s choice of facility action cat- (2) At least 60 days from the date es- egories under these regulations? tablished by the Postal Service to com- (a) A state may select any categories ment on proposed facility project ac- of facility project actions published in tions (except as noted in paragraph the FEDERAL REGISTER in accordance (a)(3) of this section). with § 778.3 for intergovernmental re- (3) For facility project actions in the view under these regulations. Each Washington, DC National Capital Re- state, before selecting categories of fa- gion, coordination also is accomplished cility project actions, shall consult with the National Capital Planning with local elected officials. Commission (NCPC). The Postal Serv- (b) Each state that adopts a process ice gives the NCPC 90 days to comment shall notify the Postal Service of the on projects in the Maryland and Vir- Postal Service’s categories of facility ginia portions of the National Capital actions selected for that process. Region. (c) A state may notify the Postal (b) This section also applies to com- Service of changes in its selections at ments in cases in which the review, co- any time. For each change, the state ordination, and communication with shall submit to the Postal Service an the Postal Service have been delegated. assurance that the state has consulted with local elected officials regarding § 778.9 How does the Postal Service re- the change. The Postal Service may es- ceive and respond to comments? tablish deadlines by which states are (a) The Postal Service follows the required to inform the Postal Service procedures in § 778.10 if:

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(1) A state office or official is des- discretion deems appropriate. The ignated to act as a single point of con- Postal Service may also supplement tact between a state process and all the written explanation by providing federal agencies, and the explanation to the single point of (2) That office or official transmits a contact by telephone, other tele- state process recommendation for a fa- communication, or other means. cility project action of a category se- (b) In any explanation under para- lected under § 778.6. graph (a)(3) of this section, the Postal (b)(1) The single point of contact is Service informs the single point of con- not obligated to transmit comments tact that: from state, areawide, regional or local (1) The Postal Service will not imple- officials and entities where there is no ment its decision for at least ten days state process recommendation. after the single point of contact re- (2) If a state process recommendation ceives the explanation; or is transmitted by a single point of con- (2) The Postal Service has reviewed tact, all comments from state, the decision and determined that be- areawide, regional, and local officials cause of unusual circumstances, the and entities that differ from it must waiting period of at least ten days is also be transmitted. not feasible. (c) If a state has not established a (c) For purposes of computing the process, or does not submit a state waiting period under paragraph (b)(1) process recommendation, state, of this section, a single point of con- areawide, regional and local officials tact is presumed to have received writ- and entities may submit comments di- ten notification 5 days after the date of rectly to the Postal Service. mailing of such notification. (d) If a facility project action is not selected for a state process, state, § 778.11 What are the Postal Service’s areawide, regional and local officials obligations in interstate situations? and entities may submit comments di- (a) The Postal Service is responsible rectly to the Postal Service. In addi- for: tion, if a state process recommendation for a nonselected facility project ac- (1) Identifying proposed direct federal tion is transmitted to the Postal Serv- development projects that have an im- ice by the single point of contact, the pact on interstate areas; Postal Service follows the procedures (2) Notifying appropriate officials of § 778.10. and entities in states which have (e) The Postal Service considers com- adopted a process and which select the ments which do not constitute a state Postal Service’s facility project action process recommendation submitted for review; under these regulations and for which (3) Making efforts to identify and no- the Postal Service is not required to tify the affected state, areawide, re- apply the procedures of § 778.10 when gional, and local officials and entities such comments are provided by a sin- in those states that have not adopted a gle point of contact or directly to the process under the Order or do not se- Postal Service by a commenting party. lect the Postal Service’s facility project action for review; § 778.10 How does the Postal Service (4) Responding pursuant to § 778.10 if make efforts to accommodate inter- the Postal Service receives a rec- governmental concerns? ommendation from a designated (a) If a state process provides a state areawide agency transmitted by a sin- process recommendation to the Postal gle point of contact in cases in which Service through its single point of con- the review, coordination, and commu- tact, the Postal Service either: nication with the Postal Service have (1) Accepts the recommendation; been delegated. (2) Reaches a mutually agreeable so- (b) The Postal Service uses the proce- lution with the state process; or dures in § 778.10 if a state process pro- (3) Provides the single point of con- vides a state process recommendation tact with such written explanation of to the Postal Service through a single its decision as the Postal Service in its point of contact.

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§ 778.12 [Reserved] § 778.13 May the Postal Service waive any provision of these regulations? In an emergency, the Postal Service may waive any provision of these regulations.

SUBCHAPTER M [RESERVED]

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Rules of Procedure Before the he may adjust and settle it under au- Office of General Counsel thority of 39 U.S.C. 2603. [45 FR 43719, June 30, 1980, as amended at 69 PART 912—PROCEDURES TO ADJU- FR 52607, Aug. 27, 2004] DICATE CLAIMS FOR PERSONAL § 912.3 Time limit for filing. INJURY OR PROPERTY DAMAGE (a) Claim. A claim under the Federal ARISING OUT OF THE OPERATION Tort Claims Act must be presented OF THE U.S. POSTAL SERVICE within two years from the date the claim accrues. Sec. (b) Suit. Suit must be filed within six 912.1 Claims responsibility. months after the date of mailing by 912.2 Applicability of Federal Tort Claims certified or registered mail of notice of Act. final denial of the claim by the Postal 912.3 Time limit for filing. Service. 912.4 Place of filing. 912.5 Administrative claim; when presented. [45 FR 43720, June 30, 1980] 912.6 Administrative claim; who may file. 912.7 Evidence and information to be sub- § 912.4 Place of filing. mitted. Claims should be filed with the Tort 912.8 Sufficiency of evidence and informa- Claims Coordinator for the Postal tion submitted. Service District Office where the acci- 912.9 Final denial of claim. dent occurred, but may be filed at any 912.10 Action on approved claims. office of the Postal Service, or sent di- 912.11 Exclusiveness of remedy. rectly to the Chief Counsel, National 912.12 Review by legal officers. Tort Center, U.S. Postal Service, P.O. 912.13 Attorneys’ fees. Box 66640, St. Louis, MO 63141–0640. 912.14 Conclusiveness of remedy. [69 FR 52607, Aug. 27, 2004, as amended at 73 AUTHORITY: 28 U.S.C. 2671–2680; 28 CFR 14.1 FR 75339, Dec. 11, 2008] through 14.11; 39 U.S.C. 409. § 912.5 Administrative claim; when § 912.1 Claims responsibility. presented. The General Counsel is responsible (a) For purposes of this part, a claim for settlement of claims made against shall be deemed to have been presented the U.S. Postal Service under the Fed- when the U.S. Postal Service receives eral Tort Claims Act and 39 U.S.C. 2603, from a claimant, his duly authorized with authority to redelegate the func- agent or legal representative, an exe- tions to General Counsel staff members cuted Standard Form 95, Claim for and other Postal Service employees. Damage or Injury, or other written notification of an incident, accompanied [36 FR 12448, June 30, 1971] by a claim for money damages in a sum certain for injury to or loss of prop- § 912.2 Applicability of Federal Tort Claims Act. erty, personal injury, or death alleged to have occurred by reason of the inci- (a) The provisions of chapter 171 and dent. A standard Form 95 may be ob- all other provisions of title 28, U.S.C., tained from the local District Tort relating to tort claims shall apply to Claims Coordinator, the National Tort tort claims arising out of the activities Center, or online at usa.gov (select of the Postal Service. (39 U.S.C. 409(c)). Government forms). (b) Where the General Counsel, or the (b) A claim presented in compliance General Counsel’s designee, finds a with paragraph (a) of this section may claim for damage to persons or prop- be amended by the claimant at any erty resulting from operation of the time prior to: U.S. Postal Service to be a proper (1) The claimant’s exercise of the op- charge against the United States and it tion to file a civil action pursuant to 28 is not cognizable under 28 U.S.C. 2672, U.S.C. 2675(a);

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(2) The Postal Service’s issuance of a § 912.7 Evidence and information to be payment in the full amount of the submitted. claim; or (a) Death. In support of a claim based (3) The Postal Service’s issuance of a on death, the claimant may be required written denial of the claim in accord- to submit the following evidence or in- ance with § 912.9. formation: (c) Amendments shall be submitted in writing and signed by the claimant (1) An authenticated death certifi- or his duly authorized agent or legal cate or other competent evidence show- representative. Upon the timely filing ing cause of death, date of death, and of an amendment to a pending claim, age of the decedent. the Postal Service shall have six (2) Decedent’s employment or occu- months in which to make final disposi- pation at time of death, including tion of the claim as amended, and the monthly or yearly salary or earnings, claimant’s option under 28 U.S.C. if any, and the duration of his last em- 2675(a) shall not accrue until six ployment or occupation. months after the filing of an amend- (3) Full names, addresses, birth dates, ment. kinship, and marital status of the dece- [36 FR 12448, June 30, 1971, as amended at 45 dent’s survivors, including identifica- FR 43720, June 30, 1980; 69 FR 52607, Aug. 27, tion of those survivors who were de- 2004; 73 FR 75339, Dec. 11, 2008] pendent for support upon the decedent at the time of his death. § 912.6 Administrative claim; who may (4) Degree of support afforded by the file. decedent to each survivor dependent (a) A claim for injury to or loss of upon him for support at the time of his property may be presented by the death. owner of the property, his duly author- (5) Decedent’s general physical and ized agent, or legal representative. mental condition before death. (b) A claim for personal injury may (6) Itemized bills for medical and bur- be presented by the injured person, his ial expenses incurred by reason of the duly authorized agent, or legal rep- incident causing death, or itemized re- resentative. ceipts of payment for such expenses. (c) A claim based on death may be (7) If damages for pain and suffering presented by the executor or administrator of the decedent’s estate, or by prior to death are claimed, a physi- any other person legally entitled to as- cian’s detailed statement specifying sert such a claim in accordance with the injuries suffered, duration of pain applicable State law. and suffering, any drugs administered (d) A claim for loss wholly com- for pain, and the decedent’s physical pensated by an insurer with the rights condition in the interval between in- of a subrogee may be presented by the jury and death. insurer. A claim for loss partially com- (8) Any other evidence or information pensated by an insurer with the rights which may have a bearing on either the of a subrogee may be presented by the responsibility of the United States for parties individually as their respective the death or the damages claimed. interests appear, or jointly. (b) Personal injury. In support of a (e) A claim presented by an agent or claim for personal injury, including legal representative shall be presented pain and suffering, the claimant may in the name of the claimant, be signed be required to submit the following by the agent or legal representative, evidence or information: show the title or legal capacity of the (1) A written report by his attending person signing, and be accompanied by physician or dentist setting forth the evidence of his authority to present a nature and extent of the injury, nature claim on behalf of the claimant as and extent of treatment, any degree of agent, executor, administrator, parent, temporary or permanent disability, the guardian, or other representative. prognosis, period of hospitalization, [36 FR 12448, June 30, 1971, as amended at 45 and any diminished earning capacity. FR 43720, June 30, 1980]

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In addition, the claimant may be re- § 912.8 Sufficiency of evidence and in- quired to submit to a physical or men- formation submitted. tal examination by a physician em- In order to exhaust the administra- ployed by the agency or another Fed- tive remedy provided, a claimant shall eral agency. A copy of the report of the submit substantial evidence to prove examining physician shall be made the extent of any losses incurred and available to the claimant upon the any injury sustained, so as to provide claimant’s written request, provided the Postal Service with sufficient evi- that he has, upon request, furnished dence for it to properly evaluate the the report referred to in the first sen- claim. tence of this paragraph and has made, [45 FR 43720, June 30, 1980] or agrees to make available to the agency or another Federal agency. A § 912.9 Final denial of claim. copy previously or thereafter made of (a) Final denial of an administrative the physical or mental condition which claim shall be in writing and sent to is the subject matter of his claim. the claimant, his attorney, or legal (2) Itemized bills for medical, dental, representative by certified or reg- and hospital expenses incurred, or istered mail. The notification of final itemized the report referred to in the denial may include a statement of the first expenses. reasons for the denial and shall include (3) If the prognosis reveals the neces- a statement that, if the claimant is sity for future treatment, a statement dissatisfied with the agency action, he of expected expenses for such treat- may file suit in an appropriate U.S. ment. District Court not later than 6 months (4) If a claim is made for loss of time after the date of mailing of the nota- for employment, a written statement tion. from his employment, whether he is a (b) Prior to the commencement of full- or part-time employee, and wages suit and prior to the expiration of the or salary actually lost. 6 month period provided in 28 U.S.C. 2401(b), a claimant, his duly authorized (5) If a claim is made for loss of in- agent, or legal representative, may file come and the claimant is self-em- a written request with the postal offi- ployed, documentary evidence showing cial who issued the final denial or with the amount of earnings actually lost. the Chief Counsel, National Tort Cen- (6) Any other evidence or information ter, U.S. Postal Service, P.O. Box 66640, which may have a bearing on either the St. Louis, MO 63141–0640, for a reconsid- responsibility of the United States for eration of a final denial of a claim the personal injury or the damages under paragraph (a) of this section. claimed. Upon the timely filing of a request for (c) Property damage. In support of a reconsideration, the Postal Service claim for injury to or loss of property, shall have 6 months from the date of real or personal, the claimant may be filing in which to make a disposition of required to submit the following evi- the claim and the claimant’s option dence or information: under 28 U.S.C. 2675(a) shall not accrue (1) Proof of ownership. until 6 months after the filing of a re- (2) A detailed statement of the quest for reconsideration. Final Postal amount claimed with respect to each Service action on a request for recon- item of property. sideration shall be effected in accordance with this part. (3) An itemized receipt of payment (c) For purposes of this section, a re- for necessary repairs or itemized writ- quest for reconsideration of a final de- ten estimates of the cost of such re- nial of a claim shall be deemed to have pairs. been filed when received in the office of (4) A statement listing date of pur- the official who issued the final denial chase, purchase price and salvage or in the office of the Chief Counsel, value, where repair is not economical. National Tort Center, U.S. Postal Serv- [36 FR 12449, June 30, 1971] ice, P.O. Box 66640, St. Louis, MO 63141– 0640.

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(d) Only one request for reconsider- § 912.13 Attorneys’ fees. ation of a final denial may be filed. A The provisions of 28 U.S.C. 2678 claimant shall have no right to file a should be consulted in determining the request for reconsideration of a final amount of the attorneys’ fees. denial issued in response to a request for reconsideration. [36 FR 12448, June 30, 1971. Redesignated at 45 FR 43720, June 30, 1980] (28 U.S.C. 2671–2680; 28 CFR 14.1–14.11; 39 U.S.C. 401, 409, 2008) § 912.14 Conclusiveness of remedy. [36 FR 12448, June 30, 1971, as amended at 38 Payment by the Postal Service of the FR 16868, June 27, 1973; 49 FR 19478, May 8, full amount claimed or acceptance by 1984; 69 FR 52607, Aug. 27, 2004; 73 FR 75340, the claimant, his agent, or legal rep- Dec. 11, 2008] resentative, of any award, compromise, § 912.10 Action on approved claims. or settlement made pursuant to the provisions of the Federal Tort Claims In any case where the General Coun- Act, shall be final and conclusive on sel or the General Counsel’s designee, the claimant, his agent, or legal rep- upon consideration of all the evidence resentative, and any other person on submitted, finds that compensation is whose behalf or for whose benefit the due a claimant, payment will be made claim has been presented, and shall by the U.S. Postal Service and in due constitute a complete release of any course a settlement check will be for- claim against the United States and warded to the claimant or his rep- against any employee of the Govern- resentative. ment whose act or omission gave rise [36 FR 12450, June 30, 1971, as amended at 69 to the claim by reason of the same sub- FR 52607, Aug. 27, 2004] ject matter.

§ 912.11 Exclusiveness of remedy. [45 FR 43720, June 30, 1980] The provisions of 28 U.S.C. 2679(b) provide that the remedy against the PART 913—PROCEDURES FOR THE United States, as provided by sections ISSUANCE OF ADMINISTRATIVE 1346(b) and 2672 of title 28, for injury or SUBPOENAS UNDER 39 U.S.C. loss or personal injury or death result- 3016 ing from the operation by an employee of the Government of any motor vehi- Sec. cle while acting within the scope of his 913.1 Subpoena authority. employment is exclusive of any other 913.2 Service. civil action or proceeding by reason of 913.3 Enforcement. the same subject matter against the 913.4 Disclosure. employee or his estate whose act or AUTHORITY: 39 U.S.C. 204, 401, 404, 3005, 3016. omission gave rise to the claim. SOURCE: 65 FR 31266, May 17, 2000, unless [45 FR 43720, June 30, 1980] otherwise noted.

§ 912.12 Review by legal officers. § 913.1 Subpoena authority. The authority of the Postal Service (a) General. The General Counsel by to adjust, determine, compromise, and delegation from the Postmaster Gen- settle a claim under the provisions of eral is responsible for the issuance of the Federal Tort Claims Act shall, if subpoenas in investigations conducted the amount of a proposed compromise, under 39 U.S.C. 3005(a), with authority settlement, or award exceeds $5,000, be to delegate that function to a Deputy exercised only after review by a legal General Counsel. officer of the Postal Service. (b) Production of records. A subpoena issued by the General Counsel may re- [45 FR 43720, June 30, 1980, as amended at 69 quire the production of any records (in- FR 52607, Aug. 27, 2004] cluding computer records, books, papers, documents, and other tangible

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things which constitute or contain evi- United States, in such manner as the dence) which the General Counsel con- Federal Rules of Civil Procedure de- siders relevant or material to an inves- scribe for service in a foreign country. tigation. To the extent that the courts of the (c) Requirements. No subpoena shall United States may assert jurisdiction be issued until a specific case (identi- over such person consistent with due fying the individual or entity that is process, the United States District the subject) has been opened and an ap- Court for the District of Columbia propriate supervisory and legal review shall have the same jurisdiction to of a subpoena request have been per- take any action respecting compliance formed. with this section by such person that (d) Requests for subpoenas. (1) A re- such court would have if such person quest for a subpoena shall be submitted to the Office of the General Counsel by were personally within the jurisdiction a Postal Inspector, Inspector Attorney, of such court. or other Inspector specifically author- (c) Service on business persons. Serv- ized by the Postal Inspection Service ice of any such subpoena may be made to submit such a request, after appro- upon a partnership, corporation, asso- priate review by an Inspector In Charge ciation, or other legal entity by— or that person’s designee. (1) Delivering a duly executed copy (2) A request for a subpoena shall thereof to any partner, executive offi- state the specific case, with an indi- cer, managing agent, or general agent vidual or entity identified as the sub- thereof, or to any agent thereof au- ject, in which the subpoena is re- thorized by appointment or by law to quested. receive service of process on behalf of (3) A request for a subpoena shall such partnership, corporation, associa- contain a specific description of the tion, or entity; records requested, and shall state how (2) Delivering a duly executed copy they are relevant or material to the in- thereof to the principal office or place vestigation. of business of the partnership, corpora- (4) The General Counsel, in his or her tion, association, or entity; or discretion, may issue or deny the requested subpoena, or require the re- (3) Depositing such copy in the questing individual to provide addi- United States mails, by registered or tional information. The General Coun- certified mail, return receipt re- sel, in his or her discretion, may also quested, duly addressed to such part- honor requests to amend or supplement nership, corporation, association, or a request for a subpoena. entity at its principal office or place of (e) Form and issuance. Every sub- business. poena shall cite 39 U.S.C. 3016 as the (d) Service on natural persons. Serv- authority under which it is issued, and ice of any subpoena may be made upon shall command each person to whom it any natural person by— is directed to produce specified records (1) Delivering a duly executed copy to at a time and place therein specified. the person to be served; or The General Counsel shall sign the sub- (2) Depositing such copy in the poena and enter the name of the indi- United States mails, by registered or vidual or entity to whom it is directed. certified mail, return receipt re- § 913.2 Service. quested, duly addressed to such person at his residence or principal office or (a) Service within the United States. place of business. A subpoena issued under this section (e) Verified return. A verified return may be served by a person designated by the individual serving any such sub- under section 3061 of title 18 at any place within the territorial jurisdiction poena setting forth the manner of such of any court of the United States. service shall be proof of such service. (b) Foreign service. Any such sub- In the case of service by registered or poena may be served upon any person certified mail, such return shall be ac- who is not to be found within the terri- companied by the return post office re- torial jurisdiction of any court of the ceipt of delivery of such subpoena.

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§ 913.3 Enforcement. § 927.1 Noncontractual carriage of (a) In general. Whenever any person, international mail by vessel. partnership, corporation, association, (a) Report of infraction. Where evi- or entity fails to comply with any sub- dence is found or reported that a car- poena duly served upon him, the Gen- rier of mail by vessel which has trans- eral Counsel may request that the At- ported mail pursuant to the provisions torney General seek enforcement of the of Chapter 4, USPS Purchasing Man- subpoena in the district court of the ual, has unreasonably or unnecessarily United States for any judicial district delayed the mails, or committed other in which such person resides, is found, delinquencies in the transportation of or transacts business (or in the case of mail, has failed to carry the mail in a a person outside the territorial juris- safe and secure manner, or has caused diction of any district court, the dis- loss or damage to the mail, the facts trict court for the District of Colum- will be reported to International Net- bia), and serve upon such person a peti- work Operations, Headquarters. tion for an order of such court for the (b) Review, investigation, recommenda- enforcement of this part. tion. International Network Operations (b) Jurisdiction. Whenever any peti- will investigate the matter, record tion is filed in any district court of the findings of fact, make a recommenda- United States under this section, such tion concerning the need for imposition court shall have jurisdiction to hear of fine or penalty with reasons for the and determine the matter so presented, recommendation, and will advise the and to enter such order or orders as carrier of the recommendation. may be required to carry into effect (c) Penalty action. International Net- the provisions of this section. Any final work Operations, upon review of the order entered shall be subject to appeal record, may impose a fine or penalty under section 1291 of title 28, United against a carrier for any irregularity States Code. Any disobedience of any properly documented, whether or not final order entered under this section penalty action has been recommended. by any court may be punished as con- A tentative decision of International tempt. Network Operations to take penalty action will be set forth in detail the § 913.4 Disclosure. facts and reasons upon which the deter- Any documentary material provided mination is based. International Net- pursuant to any subpoena issued under work Operations will send the ten- this section shall be exempt from dis- tative decision, including notice of the closure under section 552 of title 5, irregularities found and the amount of United States Code. fine or penalty proposed, to the carrier. The carrier may present a written defense to the proposed action within 21 PART 916 [RESERVED] days after receipt of the tentative decision. International Network Operations Rules of Procedure Before the Mail will advise the carrier of the final deci- Processing Department sion. (d) Appeal. If the final decision in- PART 927—RULES OF PROCEDURE cludes a penalty International Network RELATING TO FINES, DEDUC- Operations will advise the carrier that TIONS, AND DAMAGES it may, within 30 days, appeal the action in writing to the Vice President, Sec. Network Operations Management, U.S. 927.1 Noncontractual carriage of inter- Postal Service Headquarters and that national mail by vessel. its written appeal should include all 927.2 Noncontractual air service for inter- facts and arguments upon which the national and military mail. carrier relies in support of the appeal. 927.3 Other remedies. If an appeal is not received, Inter- AUTHORITY: 39 U.S.C. 401, 2601 Chap. 56 Sec- national Network Operations will close tion 5604; 49 U.S.C. 1357, 1471. the record. When an appeal is taken, SOURCE: 67 FR 50353, Aug. 2, 2002, unless the Vice President, Network Oper- otherwise noted. ations Management will review the

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complete record the decide the appeal. carrier has disputed the facts alleged He will advise the carrier of the deci- by the reporting authority, Inter- sion in writing and will take actions national Network Operations will inconsistent with that decision. The Vice vestigate the matter to resolve the dif- President, Network Operations Man- ferences. International Network Oper- agement, may sustain, rescind, or com- ations, upon review of the record, may promise a fine or penalty. The decision impose a fine or penalty against an air of the Vice President, Network Oper- carrier for any irregularity properly ations Management on appeal shall be documented, whether or not penalty the final decision of the Postal Service. action has been recommended. Inter- The Postal Service may, in its discre- national Network Operations will send tion, deduct from payment otherwise the decision, including notice of the due the carrier an amount necessary to irregularities alleged and the amount satisfy the penalty action taken under of fine or penalty proposed to the car- this section. rier. The Postal Service may, in its dis- (e) Details of administration. For fur- cretion, deduct from payment other- ther administrative details, see USPS wise due the air carrier an amount nec- Purchasing Manual, chapter 4. essary to satisfy the penalty action taken under this section. § 927.2 Noncontractual air service for (d) Appeal. If the final decision in- international and military mail. cludes a penalty, International Net- (a) Report of infraction. Each mail work Operations will advise the carrier handling irregularity will be reported that it may, within 30 days, appeal the in the prescribed format by the cog- action in writing to the Vice President, nizant postal official or designated rep- Network Operations Management, resentative. As soon as possible the re- Postal Headquarters, and that its writ- porting authority will ask the local ten appeal should include all facts and representative of the air carrier to pro- arguments upon which the carrier re- vide an explanation of the irregularity. lies in support of the appeal. If an ap- A summary of the explanation, if any, peal is not received, International Net- will be entered in the record. A copy of work Operations will close the file. the report will be provided to the local When an appeal is taken, the Vice station manager of the air carrier con- President, Network Operations Man- cerned at the close of each tour or not agement, will review the complete less frequently than each 24 hours. record and decide the appeals. He will (b) Carrier conferences. At least one a advise the carrier of the decision in month, postal officials will schedule writing and will take action consistent meetings with the local representa- with that decision. The Vice President, tives of the affected air carriers to dis- Network Operations Management, may cuss the reported irregularities. The sustain, rescind, or compromise a fine carrier’s representative will be advised or penalty. The decision of the Vice of any irregularity for which the re- President, Network Operations Man- porting authority will recommend pen- agement, on appeal shall be the final alty action. The carrier’s representa- decision of the Postal Service. The tive will be offered the opportunity to Postal Service, may, in its discretion, comment on any irregularity, and any deduct from pay otherwise due the air comments will be attached and/or be carrier an amount necessary to satisfy made part of the record. The reports on the penalty action taken under this which penalty action is recommended section. will then be processed by International (e) Details of administration. For fur- Network Operations, Postal Head- ther administrative details, forms, and quarters. other implementing materials adapted (c) Review, investigation, penalty ac- to the respective modes of transpor- tion. International Network Operations tation, see International Mail Oper- will review the matter and advise the ations, Handbook T–5, chapter 5. carrier of the recommendations. The carrier has 21 days from receipt of no- § 927.3 Other remedies. tice to dispute the recommended pen- The procedures and other require- alties. In those instances which the ments of this part apply only where the

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Postal Service proposes to assess pen- Rules of Procedure Before the alties, fines, deductions, or damages. Postal Inspection Service This part does not limit other remedies available to the Postal Service, includ- PART 946—RULES OF PROCEDURE ing such remedies as summary action RELATING TO THE DISPOSITION to withhold tender of mail to protect the public interest in the event of OF STOLEN MAIL MATTER AND major irregularities such as theft, de- PROPERTY ACQUIRED BY THE liberate loss, damage, abandonment of POSTAL INSPECTION SERVICE the mail or service failures by the air FOR USE AS EVIDENCE carrier. Sec. 946.1 Scope of part. PART 931—RULES OF PROCEDURE 946.2 Disposition of property of apparent GOVERNING THE COMPROMISE owners. OF OBLIGATIONS 946.3 Contraband and property subject to court order. 946.4 Disposition of property of unknown § 931.1 Compromise of obligations. owners. Any proposition of compromise shall 946.5 Disposition of property having a value be submitted in writing, and the of less than $200. 946.6 Disposition of abandoned property; ad- amount offered in compromise shall be ditional period for filing claims. deposited with the Manager, Account- 946.7 Submission of claims. ing Division or the appropriate postal 946.8 Determination of claims. data center. If the offer in compromise 946.9 Reconsideration of claims. is rejected the amount deposited will 946.10 Record retention. be returned. The amount of a com- 946.11 Disposition of property declared abandoned. promise offer must be tendered uncon- ditionally for deposit pending the con- AUTHORITY: 5 U.S.C. 552(a); 39 U.S.C. 401(2), sideration of acceptance. Checks and (5), (8), 404(a)(7), 2003, 3001. drafts cannot be accepted as offers in SOURCE: 53 FR 6986, Mar. 4, 1988, unless oth- compromise when they bear endorse- erwise noted. ments or instructions to the effect that § 946.1 Scope of part. the acceptance of such checks or drafts constitutes settlement in full of the This part prescribes procedures gov- claim, fine, penalty, or liability in con- erning the disposition of recovered sto- nection with which the offer is made, len mail matter and any other property except that such checks or drafts may (real, personal, tangible or intangible) be accepted when they are accom- obtained by the Postal Inspection Serv- ice for possible use as evidence after panied with a written waiver of the en- the need to retain such property no dorsements or instructions printed longer exists. Property obtained by thereon. Offers in compromise should Postal Inspectors which appears to be transmitted or delivered to the of- have been loose in the mails but is not fice or officer of the Postal Service retained for use as evidence, except un- from whom demand is received for pay- lawful matter, must be treated in ac- ment of the amount due. cordance with postal regulations con- (39 U.S.C. 401) cerning disposition of dead mail (see Domestic Manual (DMM) 159.4). Unlaw- [26 FR 11662, Dec. 6, 1961. Redesignated at 33 ful matter must be disposed of in ac- FR 6291, April 25, 1968] cordance with § 946.3.

§ 946.2 Disposition of property of apparent owners. Where an apparent owner of property subject to this part is known, the Chief Postal Inspector or delegate will mail, by certified mail to the apparent owner’s last known address, written notice

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describing the property and the proce- first publication of the notice (See dure for filing a claim for its return § 946.7). (see §§ 946.3 and 946.7). Such claims (b) The notice under § 946.4(a) must be must be filed within 30 days from the published once a week for three con- date the notice is postmarked. If the secutive weeks in a publication of gen- apparent owner of the property fails to eral circulation within the judicial dis- file a timely claim, the property is con- trict where the Postal Inspection Serv- sidered abandoned and must be dis- ice took possession of the property. posed of as provided in § 946.6. § 946.5 Disposition of property having § 946.3 Contraband and property sub- a value of less than $200. ject to court order. Where the owner of property subject Claims submitted with respect to to this part is unknown and the Chief property subject to this part, posses- Postal Inspector or delegate estimates sion of which is unlawful, must be de- that fair market value of such property nied, in writing, by certified mail and is $200 or less, title to the property the person submitting the claim must vests in the United States Postal Serv- be accorded 45 days from the post- ice, subject to the right of the owner to marked date to institute judicial pro- submit a valid claim as provided in ceedings to challenge the denial. If ju- § 946.6. dicial proceedings are not instituted within 45 days, or any extension of § 946.6 Disposition of abandoned prop- time for good cause shown, the contra- erty; additional period for filing band property must be destroyed un- claims. less the Chief Postal Inspector or dele- (a) Upon expiration of the time pro- gate determines that it should be vided in §§ 946.2 and 946.4(a)(3) for the placed in official use by the Postal In- filing of claims or any extension there- spection Service. Property subject to of, and without the receipt of a timely this part, the disposition of which is in- claim, the property described in the no- volved in litigation or is subject to an tice is considered abandoned and be- order of court, must be disposed of as comes the property of the United determined by the court. States Postal Service. However, if the owner satisfies the requirements of § 946.4 Disposition of property of un- § 946.6(b), except for property described known owners. in § 946.3, such abandoned property (a) Where no apparent owner of prop- must be returned to the owner if a erty subject to this part is known, ex- valid claim is filed within 3 years from cept property described in § 946.3, and the date the property became aban- the Chief Postal Inspector or delegate doned, with the following qualifica- estimates that the fair market value of tions: the property exceeds $200, and the prop- (1) Where property has been placed in erty is not needed as evidence, the official use by the Postal Inspection Chief Postal Inspector or delegate must Service, a person submitting a valid publish notice providing the following claim under this section must be reim- information: bursed the fair market value of the (1) A description of the property in- property at the time title vested in the cluding model or serial numbers, if United States Postal Service, less costs known; incurred by the Postal Service in re- (2) The name, address, and telephone turning or attempting to return such number of the Postal Inspector in property to the owner and; Charge who has custody of the prop- (2) Where property has been sold, a erty; and person submitting a valid claim under (3) A statement inviting any person this section must be reimbursed the who believes that he or she is fully en- same amount as the last appraised titled to the property to submit a value of the property prior to the sale claim for its return with the Postal In- of such property. spector in Charge who is identified in (b) In order to present a valid claim the notice. Such claim must be sub- under § 946.6(a), the claimant must es- mitted within 30 days from the date of tablish that he or she had no actual or

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constructive notice prior to the date shared by the Postal Inspection Service the property became abandoned that he with federal, state, or local law en- or she was entitled to file a claim pur- forcement agencies. Unless the Chief suant to § 946.2 or § 946.4. Publication of Postal Inspector determines that cash notice pursuant to § 946.4 provides con- or the proceeds of the sale of the aban- structive notice unless a claimant can doned property are to be shared with demonstrate circumstances which rea- other law enforcement agencies, such sonably precluded his access to the cash or proceeds shall be deposited in published notice. the Postal Service Fund established by 39 U.S.C. 2003. The authority to make [53 FR 6986, Mar. 4, 1988, as amended at 63 FR this determination may be delegated 8126, Feb. 18, 1998] by the Chief Postal Inspector. § 946.7 Submission of claims. [59 FR 29372, June 7, 1994] Claims submitted pursuant to this part must be submitted on Postal Serv- Rules of Procedure Before the ice Form 1503 which may be obtained Judicial Officer from the Inspector in Charge who has custody of the property. PART 951—PROCEDURE GOV- § 946.8 Determination of claims. ERNING THE ELIGIBILITY OF PER- SONS TO PRACTICE BEFORE THE Upon receipt of a claim under this POSTAL SERVICE part, the Postal Inspection Service must conduct an investigation to de- Sec. termine the merits of the claim. The 951.1 Authority for rules. results of the investigation must be 951.2 Eligibility to practice. submitted to the Chief Postal Inspector 951.3 Persons ineligible for admission to or delegate who must approve or deny practice. the claim by written decision, a copy of 951.4 Authorization of appearance may be which must be forwarded to the claim- required. 951.5 Complaint of misconduct. ant by certified mail. If the claim is 951.6 Censure, suspension or disbarment; approved, the procedures to be followed grounds. by the claimant to obtain return of the 951.7 Notice of disbarment; exclusion from property, or its determined value, must practice. be stated. If the claim is denied, the de- 951.8 Ex parte communications. cision must state the reasons therefor. AUTHORITY: 39 U.S.C. 204, 401. § 946.9 Reconsideration of claims. SOURCE: 36 FR 11562, June 16, 1971, unless otherwise noted. A written request for reconsideration of denied claims may be submitted § 951.1 Authority for rules. within 10 days of the postmarked date The Judicial Officer promulgates of the mailing denying the claim. Such these rules pursuant to authority dele- requests must be addressed to the Chief gated by the Postmaster General. Postal Inspector or delegate and must be based on evidence recently devel- § 951.2 Eligibility to practice. oped or not previously presented. (a) Any individual who is a party to any proceeding before the Judicial Offi- § 946.10 Record retention. cer, the Board of Contract Appeals or Records regarding property subject an Administrative Law Judge may ap- to this part will be retained for a pe- pear for himself or by an attorney at riod of 3 years following return of the law. property to its owner or a determina- (b) The head of any department of tion that the property is abandoned. the Postal Service may establish such special rules and regulations per- § 946.11 Disposition of property de- taining to eligibility to practice before clared abandoned. such department as he may deem to be Property declared abandoned, includ- necessary or desirable. ing cash, and proceeds from the sale of (c) Generally, except as provided in property subject to this part may be § 951.3, any attorney at law who is a

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member in good standing of the Bar of § 951.4 Authorization of appearance the Supreme Court of the United may be required. States or of the highest court of any The Judicial Officer, the head of any State, District, Territory, Protectorate department of the Postal Service or or Possession of the United States, or any Administrative Law Judge may re- of the District of Columbia, and is not quire any person to present satisfac- under any order of any court or execu- tory evidence of his authority to rep- tive department of one of the foregoing resent the person for whom he appears. governmental entities suspending, enjoining, restraining, disbarring, or oth- § 951.5 Complaint of misconduct. erwise restricting him in the practice (a) If the head of any department of of law may represent others before the the Postal Service has reason to be- U.S. Postal Service. lieve, or if complaint be made to him, (d) When any person acting in a rep- that any person is guilty of conduct resentative capacity appears in person subjecting him to suspension or disbar- or signs a paper in practice before the ment, the head of such office shall re- Postal Service his personal appearance port the same to the Judicial Officer. or signature shall constitute a rep- (b) Whenever any person submits to resentation to the Postal Service that the Judicial Officer a complaint under the provisions of this part and against any person who has practiced, the law he is authorized and qualified is practicing or holding himself out as to represent the particular party in entitled to practice before the Postal whose behalf he acts. The Postal Serv- Service, the Judicial Officer may refer ice does not generally take formal ac- such complaint to the Chief Inspector tion or issue any certificate to show for a complete investigation and re- that an individual is eligible to prac- port. tice before it. (See § 951.4.) (c) At any time, the Judicial Officer may refer the complaint to the General § 951.3 Persons ineligible for admis- Counsel for the preparation of formal sion to practice. charges to be lodged against and served (a) No person disbarred from practice upon the person against whom the before the Postal Service or in any complaint has been made. other executive department of any of the governmental entities mentioned § 951.6 Censure, suspension or disbar- in § 951.2(c) will be eligible to practice ment; grounds. before the Postal Service until said (a) The Judicial Officer may censure, order of disbarment shall have been re- suspend or disbar any person against voked. whom a complaint has been made and (b) Any person who, subsequently to upon whom charges have been served being admitted to practice before the as provided in § 951.5 if he finds that Postal Service, is disbarred by any gov- such person: ernmental entity mentioned in (1) Does not possess the qualifica- § 951.2(c) shall be deemed suspended tions required by § 951.2; from practice before the Postal Service (2) Has failed to conform to standards during the pendency of said order or of ethical conduct required of practi- disbarment. tioners at the Bar of any court of (c) No person who has been an attor- which he is a member; ney, officer, clerk, or employee in the (3) Represents, as an associate, an at- Postal Service will be recognized as attorney who, known to him, solicits torney for prosecuting before it or any practice by means of runners or other office thereof any case or matter which unethical methods; he was in anywise connected while he (4) By use of his name, personal ap- was such attorney, officer, clerk, or pearance, or any device, aids or abets employee. an attorney to practice during the pe- (d) No person coming within the pro- riod of his suspension or disbarment, hibitions of 18 U.S.C. 203, 205, or 207, such suspension or disbarment being will be recognized as attorney before known to him; the Postal Service or any office there- (5) Displays toward the Judicial Offi- of. cer, Board of Contract Appeals or any

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Administrative Law Judge assigned to PART 952—RULES OF PRACTICE IN the Postal Service, conduct which, if PROCEEDINGS RELATIVE TO displayed toward any court of any FALSE REPRESENTATION AND State, the United States, any of its LOTTERY ORDERS (EFF. UNTIL 7- Territories or the District of Columbia, would be cause for censure, suspension 22-2011) or disbarment; or Sec. (6) Is otherwise guilty of misconduct 952.1 Authority for rules. or lacking in character or professional 952.2 Scope of rules. integrity. 952.3 Informal dispositions. (b) Before any person shall be cen- 952.4 Office business hours. sured, suspended or disbarred, he shall 952.5 Complaints. be afforded an opportunity to be heard 952.6 Interim impounding. by the Judicial Officer on the charges 952.7 Notice of answer and hearing. made against him. The General Coun- 952.8 Service. sel or his designee shall prosecute such 952.9 Filing documents for the record. cases. 952.10 Answer. (c) In the event the Judicial Officer is 952.11 Default. unavailable for any reason, he may as- 952.12 Amendment of pleadings. 952.13 Continuances and extensions. sign complaints of misconduct to the 952.14 Hearings. Associate Judicial Officer, an Adminis- 952.15 Change of place of hearings. trative Law Judge appointed pursuant 952.16 Appearances. to the provisions of the Administrative 952.17 Presiding officers. Procedure Act, an Administrative 952.18 Evidence. Judge appointed pursuant to the provi- 952.19 Subpoenas. sions of the Contract Disputes Act of 952.20 Witness fees. 1978, or some other disinterested mem- 952.21 Depositions, interrogatories, requests ber of the headquarters staff of the for admission of fact and production of Postal Service recommended by the documents. Deputy Postmaster General, for the de- 952.22 Transcript. terminations required by § 951.5, the 952.23 Proposed findings and conclusions. 952.24 Decisions. conduct of the hearings, and the deci- 952.25 Exceptions to initial decision or tension to censure, suspend, or debar per- tative decision. sons as provided herein. 952.26 Judicial Officer. [36 FR 11562, June 16, 1971, as amended at 51 952.27 Motion for reconsideration. FR 16517, May 5, 1986] 952.28 Orders. 952.29 Modification or revocation of orders. § 951.7 Notice of disbarment; exclusion 952.30 Supplemental orders. from practice. 952.31 Computation of time. 952.32 Official record. Upon the disbarment of any person, 952.33 Public information. notice thereof will be given to the 952.34 Ex parte communications. heads of the departments of the Postal Service and to the other Executive De- AUTHORITY: 39 U.S.C. 204, 401, 3005, 3012, 3016. partments, and thereafter, until otherwise ordered, such disbarred persons SOURCE: 36 FR 11563, June 16, 1971, unless will not be entitled to practice before otherwise noted. the Postal Service or any department EFFECTIVE DATE NOTE: At 76 FR 36320, June thereof. 22, 2011, part 952 was revised, effective July 22, 2011. For the convenience of the user, the § 951.8 Ex parte communications. revised text follows this part. The provisions of 5 U.S.C. 551(14), § 952.1 Authority for rules. 556(d) and 557(d) prohibiting ex parte communications are made applicable These rules of practice are issued by to proceedings under these rules of the Judicial Officer of the U.S. Postal Service (See § 952.26) pursuant to au- practice. thority delegated by the Postmaster [42 FR 5357, Jan. 28, 1977] General.

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§ 952.2 Scope of rules. The term ‘‘person’’ (1 U.S.C. 1) shall include any name, address, number or These rules of practice shall be appli- other designation under or by use of cable in all formal proceedings before which the Respondent seeks remit- the Postal Service, 39 U.S.C. 3005, in- tances of money or property through cluding such cases instituted under the mail. prior rules of practice pertaining to these or predecessor statutes, unless [48 FR 55126, Dec. 9, 1983, as amended at 65 timely shown to be prejudicial to the FR 32027, May 22, 2000; 67 FR 62179, Oct. 4, respondent. 2002; 71 FR 53972, Sept. 13, 2006] [36 FR 11563, June 16, 1971, as amended at 52 § 952.6 Interim impounding. FR 36763, Oct. 1, 1987] In preparation for or during the pend- § 952.3 Informal dispositions. ency of a proceeding initiated under 39 U.S.C. 3005, mail addressed to a re- These rules do not preclude the dis- spondent may be impounded upon ob- position of any matter by agreement taining an appropriate order from a between the parties either before or U.S. District Court, as provided in 39 after the filing of a complaint when U.S.C. 3007. time, the nature of the proceeding, and the public interest permit. § 952.7 Notice of answer and hearing. § 952.4 Office business hours. (a) When a complaint is filed against a Respondent whose mailing address is The offices of the officials mentioned within the United States, the Recorder in these rules are located at 2101 Wil- shall issue a notice of answer and hear- son Boulevard, Suite 600, Arlington, VA ing stating the date for filing an an- 22201–3078, and are open Monday swer which shall not exceed 15 days through Friday except holidays from from the service of the complaint, the 8:15 a.m. to 4:45 p.m. time and place of the hearing and a ref- [63 FR 66050, Dec. 1, 1998] erence to the effect of failure to file an answer or appear at the hearing. (See § 952.5 Complaints. §§ 952.10 and 952.11.) Whenever prac- When the the Chief Postal Inspector ticable, the hearing date shall be with- or his or her designated representative in 30 days of the date of the notice. believes that a person is using the (b) Where a complaint is filed against mails in a manner requiring formal ad- a Respondent whose mailing address is ministrative action under 39 U.S.C. not within the United States, the Judi- 3005, he shall prepare and file with the cial Officer shall review the complaint Recorder a complaint which names the and any supporting information and person involved; states the name, ad- determine whether a prima facie show- dress and telephone number of the ating has been made that Respondent is torney representing Complainant; engaged in conduct warranting states the legal authority and jurisdic- issuance of the orders authorized by 39 tion under which the proceeding is ini- U.S.C. 3005(a) and/or the assessment of tiated; states the facts in a manner suf- civil penalties authorized by 39 U.S.C. ficient to enable the person named 3012. Where he concludes that a prima therein to make answer thereto; and facie showing has not been made he requests the issuance of an appropriate shall dismiss the complaint. Where he order or orders and/or the assessment concludes that a prima facie showing of civil penalties. Complainant shall has been made, he shall issue a ten- attach to the complaint a copy of the tative decision and orders which: set order or orders requested which may, forth findings of fact and conclusions at any time during the proceedings, be of law; direct Respondent to cease and modified. The person named in the desist from engaging in conduct war- complaint shall be known as the ‘‘Re- ranting the issuance of an order au- spondent’’, and the Chief Postal Inspec- thorized by 39 U.S.C. 3005(a); direct tor or his or designee shall be known as that postal money orders drawn to the the ‘‘Complainant.’’ order of Respondent not be paid for 45 256

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days from date of the tentative deci- paragraph (a) of this section, the notice sion; direct that mail addressed to Re- may be delivered in the usual manner spondent be forwarded to designated fa- as other mail addressed to the respond- cilities and detained for 45 days from ent. A statement, showing the time the date of the tentative decision sub- and place of delivery, signed by the ject to survey by Respondent and re- postal employee who delivered the no- lease of mail unrelated to the matter tice of answer and hearing and com- complained of; tentatively assess such plaint shall be forwarded to the Re- civil penalties as he considers appro- corder and such statement shall con- priate under applicable law; and pro- stitute evidence of service. vide that unless Respondent presents, (c) Where the only address against within 45 days of the date of the ten- which Complainant seeks relief is out- tative decision, good cause for dis- side the United States, a copy of the missing the complaint, or modifying complaint, the tentative decision, and the tentative decision and orders, the a copy of these rules of practice shall tentative decision and orders shall be- be sent by registered air mail, return come final. The Judicial Officer may, receipt requested, by the Recorder to upon a showing of good cause made the address cited in the complaint. A within 45 days of the date of the ten- written statement by the Recorder not- tative decision, hold a hearing to deter- ing the time and place of mailing shall mine whether the tentative decision be accepted as evidence of service in and orders should be revoked, modified the event a signed return receipt is not or allowed to become final. Should a returned to the Recorder. hearing be granted, the Judicial Officer may modify the tentative decision and [36 FR 11563, June 16, 1971, as amended at 37 orders to extend the time during which FR 7321, Apr. 13, 1972; 44 FR 61959, Oct. 29, the payment of postal money orders 1979; 44 FR 65399, Nov. 13, 1979; 63 FR 66050, Dec. 1, 1998] payable to Respondent is suspended and mail addressed to Respondent is § 952.9 Filing documents for the detained. record. [44 FR 61959, Oct. 29, 1979, as amended at 48 (a) Each party shall file with the Re- FR 55126, Dec. 9, 1983; 65 FR 32027, May 22, corder pleadings, motions, proposed or- 2000] ders and other documents for the § 952.8 Service. record. The Recorder shall cause copies to be delivered promptly to other par- (a) Where the Respondent’s mailing ties to the proceeding and to the pre- address is within the United States, siding officer. the Recorder shall cause a notice of an- (b) The parties shall submit four cop- swer and hearing and a copy of the ies of all documents unless otherwise complaint to be transmitted to the ordered by the presiding officer. One postmaster at any office of address of copy shall be signed as the original. the Respondent or to the inspector in (c) Documents shall be dated and charge of any division in which the Re- state the docket number and title of spondent is doing business, which shall the proceeding. Any pleading or other be delivered to the Respondent or his document required by order of the pre- agent by said postmaster or a super- siding officer to be filed by a specified visory employee of his post office or a date shall be delivered to the Recorder postal inspector. A receipt acknowl- on or before such date. The date of fil- edging delivery of the notice shall be ing shall be entered thereon by the Re- secured from the Respondent or his corder. agent and forwarded to the Recorder, U.S. Postal Service, 2101 Wilson Boule- [36 FR 11563, June 16, 1971, as amended at 44 vard, Suite 600, Arlington, VA 22201– FR 61960, Oct. 29, 1979] 3078, to become a part of the official record. § 952.10 Answer. (b) If, after 5 days, the postmaster or (a) The answer shall contain a con- his agent can find no person to accept cise statement admitting, denying, or service of the notice of answer and explaining each of the allegations set hearing and complaint pursuant to forth in the complaint.

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(b) Any facts alleged in the com- (b) By consent of the parties a plead- plaint which are not denied or are ex- ing may be amended at any time. Also, pressly admitted in the answer may be a party may move to amend a pleading considered as proved, and no further at any time prior to the close of the evidence regarding these facts need be hearing and, provided that the amend- adduced at the hearing. ment is reasonably within the scope of (c) The answer shall be signed person- the proceeding initiated by the com- ally by an individual respondent, or in plaint, the presiding officer shall make the case of a partnership by one of the such ruling on the motion as he deems partners, or, in the case of a corpora- to be fair and equitable to the parties. tion or association, by an officer there- (c) When issues not raised by the of. pleadings but reasonably within the (d) The answer shall set forth the Re- scope of the proceedings initiated by spondent’s address and telephone num- the complaint are tried by express or ber or the name, address and telephone implied consent of the parties, they number of its attorney. shall be treated in all respects as if (e) The answer shall affirmatively they had been raised in the pleadings. state whether the respondent will ap- Such amendments as may be necessary pear in person or by counsel at the to make the pleadings conform to the hearing. evidence and to raise such issues shall (f) If the respondent does not desire be allowed at any time upon the mo- to appear at the hearing in person or tion of any party. by counsel he may request that the (d) If a party objects to the introduc- matter be submitted for determination tion of evidence at the hearing on the pursuant to paragraph (b) of § 952.11. ground that it is not within the issues [36 FR 11563, June 16, 1971, as amended at 44 made by the pleadings, but fails to sat- FR 61960, Oct. 29, 1979] isfy the presiding officer that an amendment of the pleadings would § 952.11 Default. prejudice him on the merits, the pre- (a) If the Respondent fails to file an siding officer may allow the pleadings answer within the time specified in the to be amended and may grant a con- notice of answer and hearing, he shall tinuance to enable the objecting party be deemed in default, and to have to rebut the evidence presented. waived hearing and further procedural (e) The presiding officer may, upon steps. The Judicial Officer shall there- reasonable notice and upon such terms after issue orders and/or assess civil as are just, permit service of a supple- penalties without further notice to the mental pleading setting forth trans- Respondent. actions, occurrences, or events which (b) If the Respondent files an answer have happened since the date of the but fails to appear at the hearing, the pleading sought to be supplemented Respondent may, unless timely indica- and which are relevant to any of the tions to the contrary are received, be issues involved. deemed to have abandoned the intention to present a defense to the charges [36 FR 11563, June 16, 1971, as amended at 44 FR 61960, Oct. 29, 1979] of the complaint, and the Judicial Offi- cer, without further notice to Respond- § 952.13 Continuances and extensions. ent, may issue the orders and/or assess civil penalties sought in the complaint. Continuances and extensions will not be granted by the presiding officer ex- [48 FR 55126, Dec. 9, 1983, as amended at 65 cept for good cause shown. FR 32027, May 22, 2000] § 952.14 Hearings. § 952.12 Amendment of pleadings. Hearings are held at 2101 Wilson Bou- (a) Amendments proposed prior to levard, Suite 600, Arlington, VA 22201– the hearing shall be filed with the Re- 3078, or other locations designated by corder. Amendments proposed there- the presiding officer. after shall be filed with the presiding officer. [63 FR 66050, Dec. 1, 1998]

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§ 952.15 Change of place of hearings. (4) Order any pleading amended upon motion of a party at any time prior to Not later than the date fixed for the the close of the hearing; filing of the answer, a party may file a (5) Maintain discipline and decorum request that a hearing be held to re- and exclude from the hearing any per- ceive evidence in his behalf at a place son acting in an indecorous manner; other than that designated for hearing (6) Require the filing of briefs or in the notice. He shall support his re- memoranda of law on any matter upon quest with a statement outlining: which he is required to rule; (a) The evidence to be offered in such (7) Order prehearing conferences for place; the purpose of the settlement or sim- (b) The names and addresses of the plification of issues by the parties; witnesses who will testify; (8) Order the proceeding reopened at (c) The reasons why such evidence any time prior to his decision for the cannot be produced at Arlington, VA. receipt of additional evidence; The presiding officer shall give consid- (9) Render an initial decision, which eration to the convenience and neces- becomes the final Agency decision un- sity of the parties and the relevancy of less a timely appeal is taken: The Judi- the evidence to be offered. cial Officer may issue a tentative or a final decision; [36 FR 11563, June 16, 1971, as amended at 63 (10) Rule upon applications and re- FR 66050, Dec. 1, 1998] quests filed under § 952.19 and § 952.21. § 952.16 Appearances. [36 FR 11563, June 16, 1971, as amended at 38 FR 17216, June 29, 1973; 38 FR 20263, July 30, (a) A respondent may appear and be 1973; 44 FR 61960, Oct. 29, 1979; 65 FR 32027, heard in person or by attorney. May 22, 2000] (b) An attorney may practice before the Postal Service in accordance with § 952.18 Evidence. applicable rules issued by the Judicial (a) Except as otherwise provided in Officer. See part 951 of this chapter. these rules, the Federal Rules of Evi- (c) When a respondent is represented dence shall govern. However, such rules by an attorney, all pleadings and other may be relaxed to the extent that the papers subsequent to the complaint presiding officer deems proper to in- shall be mailed to the attorney. sure a fair hearing. The presiding offi- (d) A respondent must promptly file a cer shall exclude irrelevant, immate- notice of change of attorney. rial or repetitious evidence. (b) Testimony shall be under oath or § 952.17 Presiding officers. affirmation and witnesses shall be sub- (a) The presiding officer at any hear- ject to cross-examination. ing shall be an Administrative Law (c) Agreed statements of fact may be received in evidence. Judge qualified in accordance with law (d) Official notice or knowledge may or the Judicial Officer (39 U.S.C. 204). be taken of the types of matters of The Chief Administrative Law Judge which judicial notice or knowledge shall assign cases to Administrative may be taken. Law Judges upon rotation so far as (e) Authoritative writings of the practicable. The Judicial Officer may, medical or other sciences, may be ad- for good cause shown, preside at the remitted in evidence but only through ception of evidence in proceedings the testimony of expert witnesses or by where expedited hearings are requested stipulation. by either party. (f) Lay testimonials will not be re- (b) The presiding officer shall have ceived in evidence as proof of the effi- authority to: cacy or quality of any product or thing (1) Administer oaths and affirma- sold through the mails. tions; (g) The written statement of a com- (2) Examine witnesses; petent witness may be received in evi- (3) Rule upon offers of proof, admissi- dence provided that such statement is bility of evidence and matters of proce- relevant to the issues, that the witness dure; shall testify under oath at the hearing

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that the statement is in all respects (d) Requests to quash or modify. Upon true, and, in the case of expert wit- written request by the person subpoe- nesses, that the statement correctly naed or by a party, made within 10 days states his opinion or knowledge con- after service but in any event not later cerning the matters in question. than the time specified in the subpoena (h) A party who objects to the admis- for compliance, the presiding officer sion of evidence shall make a brief may: statement of the grounds for the objec- (1) Quash or modify the subpoena if it tion. Formal exceptions to the rulings is unreasonable and oppressive or for of the presiding officer are unneces- other good cause shown, or sary. (2) require the person in whose behalf [36 FR 11563, June 16, 1971, as amended at 44 the subpoena was issued to advance the FR 61960, Oct. 29, 1979] reasonable cost of producing subpoenaed records. Where circumstances re- § 952.19 Subpoenas. quire, the presiding officer may act (a) General. Upon written request of upon such a request at any time after either party filed with the Recorder or a copy has been served upon the oppos- on his own initiative, the presiding of- ing party. ficer may issue a subpoena requiring: (e) Form; issuance. (1) Every subpoena (1) Testimony at a deposition. The de- shall state the title of the proceeding, posing of a witness in the city or coun- shall cite 39 U.S.C. 3016(a)(2) as the au- ty where the witness resides or is em- thority under which it is issued, and ployed or transacts business in person, shall command each person to whom it or at another location convenient for is directed to attend and give testi- the witness that is specifically deter- mony, and if appropriate, to produce mined by the presiding officer; specified records at a time and place (2) Testimony at a hearing. The attend- therein specified. In issuing a subpoena ance of a witness for the purpose of to a requesting party, the presiding of- taking testimony at a hearing; and ficer shall sign the subpoena and may, (3) Production of records. In addition in his discretion, enter the name of the to paragraphs (a)(1) and (a)(2) of this witness and otherwise leave it blank. section, the production by the witness The party to whom the subpoena is at the deposition or hearing of records issued shall complete the subpoena be- designated in the subpoena. fore service. (b) Voluntary cooperation. Each party (2) The party at whose instance a is expected: subpoena is issued shall be responsible (1) To cooperate and make available for the payment of fees and mileage of witnesses and evidence under its con- the witness and of the officer who trol as requested by the other party, serves the subpoena. The failure to without issuance of a subpoena, and make payment of such charges on de- (2) To secure voluntary production of mand may be deemed by the presiding desired third-party records whenever officer as sufficient ground for striking possible. the testimony of the witness and the (c) Requests for subpoenas. (1) A re- evidence the witness has produced. quest for a subpoena shall to the extent (f) Service—(1) In general. The party practical be filed: requesting issuance of a subpoena shall (i) At the same time a request for arrange for service. deposition is filed; or (2) Service within the United States. A (ii) 15 days before a scheduled hearing subpoena issued under this section may where the attendance of a witness at a be served by a person designated under hearing is sought. 18 U.S.C. 3061 or by a United States (2) A request for a subpoena shall marshal or deputy marshal, or by any state the reasonable scope and general other person who is not a party and not relevance to the case of the testimony less than 18 years of age at any place and of any records sought. within the territorial jurisdiction of (3) The presiding officer, in his dis- any court of the United States. cretion, may honor requests for sub- (3) Foreign Service. Any such subpoena poenas not made within the time limi- may be served upon any person who is tations specified in this paragraph. not to be found within the territorial

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jurisdiction of any court of the United fusal to obey a subpoena, the Judicial States, in such manner as the Federal Officer may request the Attorney Gen- Rules of Civil Procedure prescribe for eral to petition the district court for service in a foreign country. To the ex- any district in which the person receiv- tent that the courts of the United ing the subpoena resides, is found, or States may assert jurisdiction over conducts business (or in the case of a such person consistent with due proc- person outside the territorial jurisdic- ess, the United States District Court tion of any district court, the district for the District of Columbia shall have court for the District of Columbia) to the same jurisdiction to take any ac- issue an appropriate order for the en- tion respecting compliance with this forcement of such subpoena. Any fail- section by such person that such court ure to obey such order of the court would have if such person were person- may be punishable as contempt. ally within the jurisdiction of such [65 FR 32027, May 22, 2000] court. (4) Service on Business Persons. Service § 952.20 Witness fees. of any such subpoena may be made The Postal Service does not pay fees upon a partnership, corporation, asso- and expenses for respondent’s witnesses ciation, or other legal entity by: or for depositions requested by re- (i) Delivering a duly executed copy spondent. thereof to any partner, executive officer, managing agent, or general agent § 952.21 Depositions, interrogatories, thereof, or to any agent thereof au- requests for admission of fact and thorized by appointment or by law to production of documents. receive service of process on behalf of (a) Not later than 5 days after the fil- such partnership, corporation, associa- ing of Respondent’s answer, any party tion, or entity; may file application with the Recorder (ii) Delivering a duly executed copy for the taking of testimony by deposi- thereof to the principal office or place tion. In support of such application the of business of the partnership, corpora- applicant shall submit under oath or tion, association, or entity; or affirmation a statement setting out (iii) Depositing such copy in the the reasons why such testimony should United States mails, by registered or be taken by deposition, the time and certified mail, return receipt re- the place, and the name and address of quested, duly addressed to such part- the witness whose deposition is desired, nership, corporation, association, or the subject matter of the testimony of entity at its principal office or place of each witness and its relevancy. business. (b) If the application is granted, the (5) Service on Natural Persons. Service order for the taking of the deposition of any subpoena may be made upon any will specify the time and place thereof, natural person by: the name of the witness, and require (i) delivering a duly executed copy to that the deposition be taken before a the person to be served; or person authorized to administer oaths (ii) depositing such copy in the as required by paragraph (f) of this sec- United States mails, by registered or tion. certified mail, return receipt re- (c) Each witness testifying upon dep- quested, duly addressed to such person osition shall be duly sworn, and the ad- at his residence or principal office or verse party shall have the right to place of business. cross-examine. The questions and an- (6) Verified Return. A verified return swers together with all objections, by the individual serving any such sub- shall be reduced to writing and, unless poena setting forth the manner of such waived by stipulation of the parties, service shall be proof of service. In the shall be read to and subscribed by the case of service by registered or cer- witness in the presence of the deposi- tified mail, such return shall be accom- tion officer who shall certify it in the panied by the return post office receipt usual form. The deposition officer shall of delivery of such subpoena. file the testimony taken by deposition (g) Contumacy or refusal to obey a sub- as directed in the order. The deposition poena. In the case of contumacy or re- officer shall put the witness on oath.

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All objections made at the time of ex- upon written interrogatories and cross- amination shall be noted by the deposi- interrogatories, none of the parties ex- tion officer and the evidence objected cept a witness who is a party shall be to shall be taken subject to the objec- present or represented, and no person, tions. In lieu of participating in the other than the witness, a stenographic oral examination, a party may trans- reporter, and the officer shall be mit written interrogatories to the offi- present at the examination of the wit- cer, who shall propound them to the ness, which fact shall be certified by witness and record the answers ver- the officer, who shall propound the in- batim. Objections to relevancy or ma- terrogatories and cross-interrogatories teriality of testimony, or to errors and to the witness in their order and reduce irregularities occurring at the oral ex- the testimony to writing in the wit- amination in the manner of taking the ness’ own words. For good cause shown deposition, in the form of the questions or by stipulation of the parties, written or answers, in the oath or affirmation, interrogatories and cross-interrog- or in the conduct of the parties and er- atories propounding questions of fact rors of any kind which might be obviated, cured or removed if promptly pre- may be answered by the witness in sented, are waived unless timely objec- writing, without the presence of an of- tion is made at the taking of the depo- ficer and without being recorded by a sition. stenographic reporter, provided the an- (d) At the hearing any part or all of swers are sworn to by the witness be- the deposition may be offered in evi- fore a person authorized to administer dence by any party who was present or an oath prescribed by paragraph (f). represented at the taking of the deposi- (h) Not later than 5 days after the fil- tion or who had notice thereof. If the ing of Respondent’s answer, any party deposition is not offered and received may serve on the other party a request in evidence, it shall not be considered for the admission of specified facts. In as a part of the record in the pro- the event the party served refuses ceeding. The admissibility of deposi- timely to respond to the request for ad- tions or parts thereof shall be governed missions, the presiding officer for good by the rules of evidence. cause shown may require the party (e) The party requesting the deposi- served to admit or deny each requested tion shall pay all fees required to be fact. The factual propositions set out paid to witnesses and the deposition of- in the request shall be deemed admit- ficer, and shall provide an original and ted upon the failure of a party to re- one copy of the deposition for the offi- spond to the presiding officer’s order cial record, and shall serve one copy for admission or denial. upon the opposing party. (i) Not later than 5 days after the fil- (f) Within the United States or with- ing of Respondent’s answer, either in a territory or insular possession, party may file an application for the subject to the dominion of the United production of documents or objects. States, depositions or interrogatories The application shall state the cause may be taken or certified before an of- therefor and specifically identify the ficer authorized to administer oaths by the laws of the United States or of the documents or objects and their rel- place where the examination is held; evance and materiality to the cause or within a foreign country, depositions causes in issue. The presiding officer or interrogatories may be taken or cer- may order the other party to produce tified before a secretary of an embassy and permit the inspection and or legation, consul general, vice consul photographing of any designated docu- or consular agent of the United States, ments or objects not privileged which or any other person designated in the are reasonably calculated to lead to order for the taking of a deposition. the discovery of admissible evidence. If (g) Depositions may also be taken the parties cannot themselves agree and submitted on written interrog- thereon, the presiding officer shall atories in substantially the same man- specify such terms and conditions in ner as depositions taken by oral exam- making the inspection and taking the ination. When a deposition is taken copies and photographs.

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(j) Failure of a party to comply with rence or disagreement with the re- an order pursuant to this rule may requested corrections. Failure to inter- sult in the presiding officer’s ruling pose timely objection to a proposed that the disobedient party may not correction shall be considered to be support or oppose designated charges concurrence. Thereafter, the presiding or defenses or may not introduce des- officer shall by order specify the cor- ignated matters in evidence. The pre- rections to be made in the transcript. siding officer may also infer from the The presiding officer on his own initia- disobedient party’s failure to comply tive may order corrections to be made with the order that the facts to which in the transcript with prompt notice to the order related would, if produced or the parties of the proceeding. Any admitted, be adverse to such party’s in- changes ordered by the presiding offi- terests. The admissibility of matter ad- cer other than by agreement of the par- duced by operation of § 952.21 shall be ties shall be subject to objection and governed by § 952.18. exception. [36 FR 11563, June 16, 1971, as amended at 44 [36 FR 11563, June 16, 1971, as amended at 44 FR 61960, Oct. 29, 1979; 44 FR 65399, Nov. 13, FR 61961, Oct. 29, 1979] 1979]

§ 952.22 Transcript. § 952.23 Proposed findings and conclusions. (a) Hearings shall be stenographi- cally reported by a contract reporter of (a) Each party to a proceeding, ex- the Postal Service under the super- cept one who fails to answer the com- vision of the assigned presiding officer. plaint or, having answered, either fails Argument upon any matter may be ex- to appear at the hearing or indicates in cluded from the transcript by order of the answer that he does not desire to the presiding officer. A copy of the appear, may, unless at the discretion of transcript shall be a part of the record the presiding officer such is not appro- and the sole official transcript of the priate, submit proposed findings of proceeding. Copies of the transcript fact, conclusions of law, orders and shall be supplied to the parties to the supporting reasons either in oral or proceeding by the reporter at rates not written form in the discretion of the to exceed the maximum rates fixed by presiding officer. The presiding officer contract between the Postal Service may also require parties to any pro- and the reporter. Copies of parts of the ceeding to submit proposed findings of official record including exhibits ad- fact, conclusions of law, orders, and mitted into evidence, other than the supporting reasons. Unless given oral- transcript, may be obtained by the Re- ly, the date set for filing of proposed spondent from the Recorder upon the findings of fact, conclusions of law, or- payment of reasonable copying ders and supporting reasons shall be charges. Items that cannot reasonably within 15 days after the delivery of the be photocopied may be photographed official transcript to the Recorder who and furnished in that form to Respond- shall notify both parties of the date of ent. its receipt. The filing date for proposed (b) Changes in the official transcript findings of fact, conclusions of law, or- may be made only when they involve ders and supporting reasons shall be errors affecting substance and then the same for both parties. If not sub- only in the manner herein provided. No mitted by such date, or unless exten- physical changes shall be made in or sion of time for the filing thereof is upon the official transcript, or copies granted, they will not be included in thereof, which have been filed with the the record or given consideration. record. Within 10 days after the receipt (b) Except when presented orally be- by any party of a copy of the official fore the close of the hearing, proposed transcript, or any part thereof, he may findings of fact shall be set forth in se- file a motion requesting correction of rially numbered paragraphs and shall the transcript. Opposing counsel shall, state with particularity all evidentiary within such time as may be specified facts in the record with appropriate ci- by the presiding officer, notify the pre- tations to the transcript or exhibits siding officer in writing of his concur- supporting the proposed findings. Each

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proposed conclusion shall be separately § 952.25 Exceptions to initial decision stated. or tentative decision. (c) Except when presented orally be- (a) A party in a proceeding presided fore the close of the hearing, proposed over by an Administrative Law Judge, orders shall state the statutory basis of except a party who failed to file an an- the order and, with respect to orders proposed to be issued pursuant to 39 swer, may appeal to the Judicial Offi- U.S.C. 3005(a)(3), shall be set forth in cer by filing exceptions in a brief on serially numbered paragraphs stating appeal within 15 days from the receipt with particularity the representations of the Administrative Law Judge’s ini- Respondent and its representatives tial decision. shall cease and desist from using for (b) A party in a proceeding presided the purpose of obtaining money or over by the Judicial Officer, except one property through the mail. who has failed to file an answer, may file exceptions within 15 days from the [48 FR 55126, Dec. 9, 1983] receipt of the Judicial Officer’s ten- § 952.24 Decisions. tative decision. (a) Initial decision by Administrative (c) If an initial or tentative decision Law Judge. A written initial decision is rendered orally by the presiding offi- shall be rendered by an Administrative cer at the close of the hearing, he may Law Judge with all due speed. The ini- then orally give notice to the parties tial decision shall include findings and participating in the hearing of the time conclusions with the reasons therefor limit within which an appeal must be upon all the material issues of fact or filed. law presented on the record, and the (d) The date for filing the reply to an appropriate orders or denial thereof. appeal brief or to a brief in support of The initial decision shall become the exceptions to a tentative decision by final Agency decision unless an appeal the Judicial Officer is 10 days after the is taken in accordance with § 952.25. receipt thereof. No additional briefs (b) Tentative or final decision by the shall be received unless requested by Judicial Officer. When the Judicial Offi- the Judicial Officer. cer presides at the hearing he shall (e) Briefs upon appeal or in support of issue a final or a tentative decision. exceptions to a tentative decision by Such decision shall include findings the Judicial Officer and replies thereto and conclusions with the reasons there- shall be filed in triplicate with the Re- for upon all the material issues of fact corder and contain the following mat- or law presented on the record, and the ter in the order indicated: appropriate orders or denial thereof. The tentative decision shall become (1) A subject index of the matters the final Agency decision unless excep- presented, with page references; a table tions are filed in accordance with of cases alphabetically arranged; a list § 952.25. of statutes and texts cited with page (c) Oral decisions. The presiding Offi- references. cer may render an oral decision (an ini- (2) A concise abstract or statement of tial decision by an Administrative Law the case in briefs on appeal or in sup- Judge, or a tentative or final decision port of exceptions. by the Judicial Officer) at the close of (3) Numbered exceptions to specific the hearing when the nature of the findings and conclusions of fact, con- case and the public interest warrant. A clusions of law, or recommended orders party who desires an oral decision shall of the presiding officer in briefs on ap- notify the presiding officer and the op- peal or in support of exceptions. posing party at least 5 days prior to the (4) A concise argument clearly set- date set for the hearing. Either party ting forth points of fact and of law re- may submit proposed findings, conclu- lied upon in support of or in opposition sions, and proposed orders either orally to each exception taken, together with or in writing at the conclusion of the specific references to the parts of the hearing. record and the legal or other authori- [48 FR 55126, Dec. 9, 1983] ties relied upon.

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(f) Unless permission is granted by § 952.28 Orders. the Judicial Officer no brief shall ex- (a) If an order is issued which proceed 50 printed or 100 typewritten pages hibits delivery of mail to a respondent double spaced. it shall be incorporated in the record of (g) The Judicial Officer will extend the proceeding. The Recorder shall the time to file briefs only upon writ- cause notice of the order to be pub- ten application for good cause shown. lished in the Postal Bulletin and cause The Recorder shall promptly notify the the order to be transmitted to such applicant of the decision of the Judi- postmasters and other officers and em- cial Officer on the application. If the ployees of the Postal Service as may be appeal brief or brief in support of ex- required to place the order into effect. ceptions is not filed within the time (b) If an order is issued which re- prescribed, the defaulting party will be quires the Respondent to cease and de- deemed to have abandoned the appeal sist from using certain representations or waived the exceptions, and the ini- for the purpose of obtaining money or tial or tentative decision shall become property through the mail, it shall be the final Agency decision. incorporated in the record of the pro- [36 FR 11563, June 16, 1971, as amended at 38 ceeding and a copy thereof shall be FR 17216, June 29, 1973; 44 FR 61961, Oct. 29, served upon the Respondent or his 1979; 48 FR 55127, Dec. 9, 1983] agent by certified mail or by personal service, or if no person can be found to § 952.26 Judicial Officer. accept service, service shall be accom- The Judicial Officer is authorized: (a) plished by ordinary mail to the last To act as presiding officer at hearings, known address of Respondent or his (b) to render tentative decisions, (c) to agent. If service is not accomplished by render final Agency decisions, (d) to certified mail, a statement, showing issue Postal Service orders for the the time and place of delivery, signed Postmaster General, (e) to refer the by the postal employee who delivered record in any proceeding to the Post- the order, shall be forwarded to the Re- master General or the Deputy Post- corder. master General for final Agency decision, (f) to remand a case to the pre- [36 FR 11563, June 16, 1971, as amended at 38 siding officer for consideration, (g) to FR 17216, June 29, 1973; 44 FR 61961, Oct. 29, 1979; 48 FR 55127, Dec. 9, 1983] revise or amend these rules of practice. In determining appeals from initial de- § 952.29 Modification or revocation of cisions or exceptions to tentative deci- orders. sions (see § 952.24 (a) and (b) supra), the A party against whom an order or or- entire official record will be considered ders have been issued may file an appli- before a final Agency decision is ren- cation for modification or revocation dered. Before rendering a final Agency thereof. The Recorder shall transmit a decision, the Judicial Officer may copy of the application to the Chief order the hearing reopened for the Postal Inspector or his or her designee, presentation of additional evidence by who shall file a written reply within 10 the parties. days after filing or such other period as [44 FR 61961, Oct. 29, 1979] the Judicial Officer may fix. A copy of the reply shall be sent to the applicant § 952.27 Motion for reconsideration. by the Recorder. Thereafter an order A party may file a motion for recon- granting or denying such application sideration of a final agency decision will be issued by the Judicial Officer. within 10 days after receiving it or [48 FR 55127, Dec. 9, 1983, as amended at 71 within such longer period as the Judi- FR 53972, Sept. 13, 2006] cial Officer may fix. Each motion for reconsideration shall be accompanied § 952.30 Supplemental orders. by a brief clearly setting forth the When the Chief Postal Inspector or points of fact and of law relied upon in his or her designee or his designated support of said motion. representative shall have reason to be- [36 FR 11563, June 16, 1971, as amended at 38 lieve that a person is evading or at- FR 17216, June 29, 1973] tempting to evade the provisions of

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any such orders by conducting the 22, 2011. For the convenience of the user, the same or a similar enterprise under a revised text is set forth as follows: different name or at a different address he may file a petition with accom- PART 952—RULES OF PRACTICE IN panying evidence setting forth the al- PROCEEDINGS RELATIVE TO FALSE leged evasion or attempted evasion and REPRESENTATION AND LOTTERY OR- requesting the issuance of a supple- DERS (EFF. 7-22-2011) mental order or orders against the § 952.1 Authority. name or names allegedly used. Notice These rules of practice are issued by the shall then be given by the Recorder to Judicial Officer of the United States Postal the person that the order has been re- Service (see § 952.26) pursuant to authority quested and that an answer may be delegated by the Postmaster General, and in filed within 10 days of the notice. The accordance with 39 U.S.C. 3005, and are gov- Judicial Officer, for good cause shown, erned by the Administrative Procedure Act, may hold a hearing to consider the 5 U.S.C. 551, et seq. issues in controversy, and shall, in any § 952.2 Scope. event, render a final decision granting These rules of practice shall be applicable or denying the supplemental order or in all formal proceedings before the Postal orders. Service under 39 U.S.C. 3005, including such cases instituted under prior rules of practice [48 FR 55127, Dec. 9, 1983, as amended at 71 pertaining to these or predecessor statutes, FR 53972, Sept. 13, 2006] unless timely shown to be prejudicial to Re- spondent. § 952.31 Computation of time. A designated period of time under § 952.3 Informal dispositions. these rules excludes the day the period This part does not preclude the disposition begins, and includes the last day of the of any matter by agreement between the parties either before or after the filing of a com- period unless the last day is a Satur- plaint when time, the nature of the pro- day, Sunday, or legal holiday, in which ceeding, and the public interest permit. event the period runs until the close of business on the next business day. § 952.4 Office business hours. The offices of the officials identified in § 952.32 Official record. these rules are located at 2101 Wilson Boule- The transcript of testimony together vard, Suite 600, Arlington, VA 22201–3078, and are open Monday through Friday except holi- with all pleadings, orders, exhibits, days from 8:15 a.m. to 4:45 p.m. briefs and other documents filed in the proceeding shall constitute the official § 952.5 Complaints. record of the proceeding. When the Chief Postal Inspector or his or her designated representative believes that a § 952.33 Public Information. person is using the mails in a manner requiring formal administrative action under 39 The Librarian of the Postal Service U.S.C. 3005, he or she shall prepare and file maintains for public inspection in the with the Recorder a complaint which names Library copies of all initial, tentative the person involved; states the name, address and final Agency decisions and orders. and telephone number of the attorney rep- The Recorder maintains the complete resenting Complainant; states the legal au- official record of every proceeding. thority and jurisdiction under which the proceeding is initiated; states the facts in a [48 FR 55127, Dec. 9, 1983, as amended at 67 manner sufficient to enable the person FR 62179, Oct. 4, 2002] named therein to answer; and requests the issuance of an appropriate order or orders § 952.34 Ex parte communications. and/or the assessment of civil penalties. The provisions of 5 U.S.C. 551(14), Complainant shall attach to the complaint a 556(d) and 557(d) prohibiting ex parte copy of the order or orders requested which may, at any time during the proceedings, be communications are made applicable modified. The person named in the com- to proceedings under these rules of plaint shall be known as ‘‘Respondent’’, and practice. the Chief Postal Inspector or his or her designee shall be known as ‘‘Complainant’’. The [42 FR 5357, Jan. 28, 1977] term ‘‘person’’ (1 U.S.C. 1) shall include any EFFECTIVE DATE NOTE: At 76 FR 36320, June name, address, number or other designation 22, 2011, part 952 was revised, effective July under or by use of which Respondent seeks

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remittances of money or property through granted, the Judicial Officer may modify the the mail. tentative decision and orders to extend the time during which the payment of postal § 952.6 Interim impounding. money orders payable to Respondent is sus- In preparation for or during the pendency pended and mail addressed to Respondent is of a proceeding initiated under 39 U.S.C. 3005, detained. mail addressed to Respondent may be impounded upon obtaining an appropriate order § 952.8 Service. from a United States District Court, as pro- (a) Where Respondent’s mailing address is vided in 39 U.S.C. 3007. within the United States, the Recorder shall cause a notice of docketing and answer due § 952.7 Notice of docketing and answer. date (the ‘‘Notice’’), a copy of these rules of (a) Upon receipt of a complaint filed practice, and a copy of the complaint to be against a Respondent whose mailing address transmitted to Complainant who shall serve is within the United States, the Recorder those documents upon Respondent or his or shall issue a notice of docketing and answer her agent by certified mail, return receipt due date stating the date for an answer requested. Service shall be complete upon which shall not exceed 30 days from the serv- mailing. A receipt acknowledging delivery of ice of the complaint and a reference to the the notice shall be secured from Respondent effect of failure to file an answer and/or the or his or her agent and forwarded to the Re- assessment of civil penalties authorized by 39 corder, U.S. Postal Service, 2101 Wilson Bou- U.S.C. 3012. (See §§ 952.10 and 952.11). levard, Suite 600, Arlington, VA 22201–3078, to (b) Upon receipt of a complaint filed become a part of the official record. In the against a Respondent whose mailing address absence of a receipt, Complainant shall file is not within the United States, the Judicial an Affidavit of Service, along with returned Officer shall review the complaint and any undelivered mail, or other appropriate evi- supporting information and determine dence of service, with the Recorder. In the whether a prima facie showing has been alternative Complainant may, in its discre- made that Respondent is engaged in conduct tion, effectuate service by hand on Respond- warranting issuance of the orders authorized ent and file an Affidavit of Service with the by 39 U.S.C. 3005(a). Where the Judicial Offi- Recorder. cer concludes that a prima facie showing has (b) Where the only address against which not been made the complaint shall be dis- Complainant seeks relief is outside the missed. Where the Judicial Officer concludes United States, a copy of the complaint, the that a prima facie showing has been made, tentative decision, and a copy of these rules he or she shall issue a tentative decision and of practice shall be sent by international orders which: mail, return receipt requested, by the Re- (1) Set forth findings of fact and conclu- corder to the address cited in the complaint. sions of law; A written statement by the Recorder noting (2) Direct Respondent to cease and desist the time and place of mailing shall be ac- from engaging in conduct warranting the cepted as evidence of service in the event a issuance of an order authorized by 39 U.S.C. signed return receipt is not returned to the 3005(a); Recorder. (3) Direct that postal money orders drawn to the order of Respondent not be paid for 45 § 952.9 Filing documents for the record. days from date of the tentative decision; (a) Each party shall file with the Recorder (4) Direct that mail addressed to Respond- pleadings, motions, proposed orders, and ent be forwarded to designated facilities and other documents for the record. Discovery detained for 45 days from the date of the ten- need not be filed except as may be sought to tative decision subject to survey by Respond- be included in the record, or as may be or- ent and release of mail unrelated to the mat- dered by the presiding officer. Each filing ter complained of; after the initial complaint shall be served (5) Tentatively assess such civil penalties upon all other parties to the proceeding by as he considers appropriate under applicable the filing party, and an affidavit of such law; and service signed and dated by the filing party (6) Provide that unless Respondent pre- shall be included on the last page of such fil- sents, within 45 days of the date of the ten- ing, which shall state as follows: tative decision, good cause for dismissing I, [name of filing party] hereby certify that the complaint, or modifying the tentative I served the within [title of document] upon decision and orders, the tentative decision each party of record by electronic mail or and orders shall become final. first class mail on [date]. (c) The Judicial Officer may, upon a showing of good cause made within 45 days of the (b) The parties shall file one original of all date of the tentative decision, hold a hearing documents filed under this section unless to determine whether the tentative decision otherwise ordered by the presiding officer. and orders should be revoked, modified, or (c) Documents shall be dated and state the allowed to become final. Should a hearing be docket number and title of the proceeding.

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Any pleading or other document required by ders and/or assess civil penalties sought in order of the presiding officer to be filed by a the complaint. specified date must be received by the Re- corder on or before such date. The date of fil- § 952.12 Amendment of pleadings. ing shall be entered thereon by the Recorder. (a) Amendments shall be filed with the Re- (d) The presiding officer may permit filing corder. of pleadings, motions, proposed orders, and (b) By consent of the parties, a pleading other documents for the record by facsimile may be amended at any time. Also, a party or by electronic mail with the Recorder. may move to amend a pleading at any time prior to the close of the hearing and, pro- § 952.10 Answer. vided that the amendment is reasonably (a) The answer shall contain a concise within the scope of the proceeding initiated statement admitting, denying, or explaining by the complaint, the presiding officer rule each of the allegations set forth in the com- on the motion as he or she deems to be fair plaint. and equitable to the parties. (b) Any facts alleged in the complaint (c) When issues not raised by the pleadings which are not denied or are expressly admit- but reasonably within the scope of the pro- ted in the answer may be considered as ceedings initiated by the complaint are tried proved, and no further evidence regarding by express or implied consent of the parties, these facts need be adduced at the hearing. they shall be treated in all respects as if (c) The answer shall be signed personally they had been raised in the pleadings. Such by an individual Respondent, or in the case amendments as may be necessary to conform of a partnership by one of the partners, or, in the pleadings to the evidence and to raise the case of a corporation or association, by such issues may be allowed at any time upon an officer thereof. the motion of any party. (d) The answer shall set forth Respondent’s (d) If a party objects to the introduction of address, electronic mail address, and tele- evidence at the hearing on the ground that it phone number or the name, address, elec- is not within the issues raised by the plead- tronic mail address, and telephone number of ings, but fails to satisfy the presiding officer an attorney representing Respondent. that an amendment of the pleadings would (e) The answer shall affirmatively state prejudice him or her on the merits, the pre- whether the Respondent will appear in per- siding officer may allow the pleadings to be son or by counsel at the hearing. amended and may grant a continuance to en- (f) In lieu of appearing at the hearing in able the objecting party to rebut the evi- person or by counsel, Respondent may re- dence presented. quest that the matter be submitted for de- (e) The presiding officer may, upon reason- termination pursuant to § 952.17(b)(10). able notice and upon such terms as are just, permit service of a supplemental pleading § 952.11 Default. setting forth transactions, occurrences, or (a) If Respondent fails to file an answer events which have occurred since the date of within the time specified in the notice of the pleading sought to be supplemented and docketing and answer, Respondent may be which are relevant to any of the issues in- deemed in default, and to have waived hear- volved. ing and further procedural steps. The Judi- cial Officer may thereafter issue orders and/ § 952.13 Continuances and extensions. or assess civil penalties without further no- Continuances and extensions will not be tice. granted by the presiding officer except for (b) If Respondent files an answer but fails good cause shown. to appear at the hearing, Respondent may, unless timely indications to the contrary are § 952.14 Hearings. received, be deemed to have abandoned the Hearings are held at 2101 Wilson Boulevard, intention to present a defense to the charges Suite 600, Arlington, VA 22201–3078, or other of the complaint, and the Judicial Officer, locations designated by the presiding officer. without further notice to Respondent, may Time, date, and location for the hearing issue the orders and/or assess civil penalties shall be set by the presiding officer in his or sought in the complaint. her sole discretion. (c) If Respondent or Complainant fails to respond to or comply with an order of the § 952.15 Change of place of hearings. presiding officer, the party may be held in (a) A party may file a request that a hear- default, and absent good cause shown, the ing be held to receive evidence in his or her party may be deemed to have abandoned the behalf at a place other than that designated intention to present a defense, or to pros- in § 952.14. The party shall support the re- ecute the complaint, and the presiding offi- quest with a statement outlining: cer or Judicial Officer, without further no- (1) The evidence to be offered in such place; tice to the offending party, may, as appro- (2) The names and addresses of the wit- priate, dismiss the complaint or issue the or- nesses who will testify; and,

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(3) The reasons why such evidence cannot (10) Rule on motion by either party, or on be produced at Arlington, VA. his or her own initiative, for a determination (b) The presiding officer shall give consid- on the written record in lieu of an oral hear- eration to the convenience and necessity of ing in his or her sole discretion; the parties and witnesses and the relevance (11) Rule on motion by either party, or on of the evidence to be offered. his or her own initiative, to permit a hearing to be conducted by telephone, video con- § 952.16 Appearances. ference, or other appropriate means; (a) Respondent may appear and be heard in (12) Rule upon applications and requests person or by attorney. A Notice of Appear- filed under §§ 952.19 and 952.21; and ance must be filed by any attorney rep- (13) Exercise all other authority conferred resenting Respondent. upon the presiding officer by the Administra- (b) An attorney may practice before the tive Procedure Act or other applicable law. Postal Service in accordance with applicable rules issued by the Judicial Officer. See 39 § 952.18 Evidence. CFR Part 951. (a) Except as otherwise provided in these (c) When Respondent is represented by an rules, the Federal Rules of Evidence shall attorney, all pleadings and other papers sub- govern. However, such rules may be relaxed sequent to the complaint shall be mailed to to the extent that the presiding officer the attorney. deems proper to ensure a fair hearing. The (d) Withdrawal by any attorney rep- presiding officer may exclude irrelevant, im- resenting a party must be preceded by a mo- material, or repetitious evidence. tion to withdraw stating the reasons there- (b) Testimony shall be under oath or affir- fore, and shall be granted in the discretion of mation and witnesses shall be subject to the presiding officer. If a successor attorney cross-examination. is not appointed at the same time, with- (c) Agreed statements of fact may be re- drawing counsel shall provide adequate con- ceived in evidence. tact information for Respondent. (e) Parties must promptly file a notice of (d) Official notice, judicial notice or ad- change of attorney. ministrative notice of appropriate information may be taken in the discretion of the § 952.17 Presiding officers. presiding officer. (a) The presiding officer at any hearing (e) Authoritative writings of the medical shall be an Administrative Law Judge quali- or other sciences may be admitted in evi- fied in accordance with law or the Judicial dence, but only through the testimony of ex- Officer (39 U.S.C. 204). The Chief Administra- pert witnesses or by stipulation. tive Law Judge shall assign cases. The Judi- (f) Lay testimonials may be received in cial Officer may, for good cause shown, pre- evidence as proof of the efficacy or quality of side at the hearing if an Administrative Law any product, service, or thing sold through Judge is unavailable. the mails, in the discretion of the presiding (b) The presiding officer shall have author- officer. ity to: (g) The written statement of a competent (1) Administer oaths and affirmations; witness may be received in evidence provided (2) Examine witnesses; that such statement is relevant to the (3) Rule upon offers of proof, admissibility issues, that the witness shall testify under of evidence, and matters of procedure; oath at the hearing that the statement is in (4) Order any pleading amended upon mo- all respects true, and, in the case of expert tion of a party at any time prior to the close witnesses, that the statement correctly of the hearing; states the witness’s opinion or knowledge (5) Maintain discipline and decorum and concerning the matters in question. exclude from the hearing any person acting (h) A party which objects to the admission in an inappropriate manner; of evidence shall explain the grounds for the (6) Require the filing of briefs or memo- objection. Formal exceptions to the rulings randa of law on any matter upon which he or of the presiding officer are unnecessary. she is required to rule; (7) Order prehearing conferences for the § 952.19 Subpoenas. purpose of the settlement or simplification (a) General. Upon written request of either of issues by the parties; party filed with the Recorder or on his or her (8) Order the proceeding reopened at any own initiative, the presiding officer may time prior to his or her decision for the re- issue a subpoena requiring: ceipt of additional evidence; (1) Testimony at a deposition. The deposing (9) Render an initial decision, which be- of a witness in the city or county where the comes the final agency decision unless a witness resides or is employed or transacts timely appeal is taken, except that the Judi- business in person, or at another location cial Officer may issue a tentative or a final convenient for the witness that is specifi- decision; cally determined by the presiding officer;

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(2) Testimony at a hearing. The attendance ance with 28 U.S.C. 1821, or other applicable of a witness for the purpose of taking testi- law, and of the officer who serves the sub- mony at a hearing; and poena. The failure to make payment of such (3) Production of records. The production by charges on demand may be deemed by the the witness at a deposition or hearing of presiding officer as sufficient ground for records designated in the subpoena. striking the testimony of the witness and (b) Voluntary cooperation. Each party is ex- the evidence the witness has produced. pected: (f)(1) Service in general. The party request- (1) To cooperate and make available wit- ing issuance of a subpoena shall arrange for nesses and evidence under its possession, service. custody or control as requested by the other (2) Service within the United States. A sub- party, without issuance of a subpoena, and poena issued under this section may be (2) To secure voluntary production of de- served by a person designated under 18 U.S.C. sired third-party records whenever possible. 3061 or by a United States marshal or deputy (c) Requests for subpoenas. (1) A request for marshal, or by any other person who is not a subpoena shall to the extent practical be a party and not less than 18 years of age at filed: any place within the territorial jurisdiction (i) At the same time a request for deposi- of any court of the United States. tion is filed; or (3) Service outside the United States. Any (ii) Fifteen (15) days before a scheduled such subpoena may be served upon any per- hearing where the attendance of a witness at son who is not to be found within the terri- a hearing is sought. torial jurisdiction of any court of the United (2) A request for a subpoena shall state the States, in such manner as the Federal Rules reasonable scope and relevance to the case of of Civil Procedure prescribe for service in a the testimony and of any records sought. foreign country. To the extent that the (3) The presiding officer, in his or her sole courts of the United States may assert juris- discretion, may honor requests for subpoenas diction over such person consistent with due not presented within the time limitations process, the United States District Court for specified in this paragraph. the District of Columbia shall have the same (d) Motion to quash or modify. (1) Upon writ- jurisdiction to take any action respecting ten request by the person subpoenaed or by a compliance with this section by such person party, the presiding officer may: that such court would have if such person (i) Quash or modify the subpoena if it is were personally within the jurisdiction of unreasonable, oppressive or for other good such court. cause shown, or (4) Service on business persons. Service of (ii) Require the person in whose behalf the any such subpoena may be made upon a part- subpoena was issued to advance the reason- nership, corporation, association, or other able cost of producing subpoenaed records. legal entity by: Where circumstances require, the presiding (i) Delivering a duly executed copy thereof officer may act upon such a request at any to any partner, executive officer, managing time after a copy has been served upon the agent, or general agent thereof, or to any opposing party. agent thereof authorized by appointment or (2) Motions to quash or modify a subpoena by law to receive service of process on behalf shall be filed within 10 days of service, or at of such partnership, corporation, associa- least one day prior to any scheduled hearing, tion, or entity; whichever first occurs. The presiding officer, (ii) Delivering a duly executed copy thereof in his or her sole discretion, may entertain to the principal office or place of business of motions to quash or modify not made within the partnership, corporation, association, or the time limitations specified in this para- entity; or graph. (iii) Depositing such copy in the United (e) Form; issuance. (1) Every subpoena shall States mails, by registered or certified mail, state the title of the proceeding, shall cite 39 return receipt requested, duly addressed to U.S.C. 3016(a)(2) as the authority under such partnership, corporation, association, which it is issued, and shall command each or entity at its principal office or place of person to whom it is directed to attend and business. give testimony, and if appropriate, to (5) Service on natural persons. Service of any produce specified records at a time and place subpoena may be made upon any natural per- therein specified. In issuing a subpoena to a son by: requesting party, the presiding officer shall (i) Delivering a duly executed copy to the sign the subpoena and may, in his or her dis- person to be served; or cretion, enter the name of the witness and (ii) Depositing such copy in the United otherwise leave it blank. The party to whom States mails, by registered or certified mail, the subpoena is issued shall complete the return receipt requested, duly addressed to subpoena before service. such person at his or her residence or prin- (2) The party at whose instance a subpoena cipal office or place of business. is issued shall be responsible for the payment (6) Verified return. A verified return by the of fees and mileage of the witness in accord- individual serving any such subpoena setting

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forth the manner of such service shall con- (3) The discovery is unduly burdensome stitute proof of service. In the case of service and expensive, taking into account the needs by registered or certified mail, such return of the case, the amount in controversy, limi- shall be accompanied by the return post of- tations on the parties’ resources, and the im- fice receipt of delivery of such subpoena, or portance of the issues at stake. a statement of service by registered or cer- (d) Interrogatories. At any time after serv- tified mail in the event that receipt of deliv- ice of the complaint, a party may serve on ery is unavailable. the other party written interrogatories to be (g) Contumacy or refusal to obey a subpoena. answered separately in writing, signed under In the case of refusal to obey a subpoena, the oath and returned within 30 days. Upon time- Judicial Officer may request the Attorney ly objection, the presiding officer will deter- General to petition the district court for any mine the extent to which the interrogatories district in which the person receiving the will be permitted. subpoena resides, is found, or conducts busi- (e) Requests for admission. At any time after ness (or in the case of a person outside the service of the complaint, a party may serve territorial jurisdiction of any district court, the district court for the District of Colum- upon the other party a request for the admis- bia) to issue an appropriate order for the en- sion of specified facts. Within 30 days after forcement of such subpoena. Any failure to service, the party served shall answer each obey such order of the court may be punish- requested fact or file objections thereto. The able as contempt. factual propositions set out in the request may be ordered by the presiding officer as § 952.20 Witness fees. deemed admitted upon the failure of a party The Postal Service does not pay fees and to respond timely and fully to the request expenses for Respondent’s witnesses or for for admissions. depositions requested by Respondent, unless (f) Requests for production of documents. At otherwise ordered by the presiding officer. any time after service of the complaint, a party may serve on the other party written § 952.21 Discovery. requests for the production, inspection, and (a) Voluntary discovery. The parties are en- copying of any documents, electronically couraged to engage in voluntary discovery stored information, or things, to be answered procedures. In connection with any deposi- within 30 days. Upon timely objection, the tion or other discovery procedure, the pre- presiding officer will determine the extent to siding officer may issue any order which jus- which the requests must be satisfied, and if tice requires to protect a party or person the parties cannot themselves agree thereon, from annoyance, embarrassment, oppression, the presiding officer shall specify just terms or undue burden or expense, and those orders and conditions for compliance. may include limitations on the scope, meth- (g) Depositions. Except as stated herein, od, time and place for discovery, and provi- depositions shall be conducted in accordance sions for protecting the secrecy of confiden- with Rule 30 of the Federal Rules of Civil tial information or documents. Procedure. (b) Discovery disputes. The parties are re- (1) After a complaint has been filed and quired to make a good faith effort to resolve docketed, the parties may mutually agree to, objections to discovery requests informally. or the presiding officer may, upon applica- A party receiving an objection to a discovery tion of either party and for good cause request, or a party which believes that an- shown, order the taking of testimony of any other party’s response to a discovery request person by deposition upon oral examination is incomplete or entirely absent, may file a or written interrogatories before any officer motion to compel a response, but such a motion must include a representation that the authorized to administer oaths at the place moving party has tried in good faith, prior to of examination, for use as evidence or for filing the motion, to resolve the matter in- purpose of discovery. The application for formally. The motion to compel shall in- order shall specify whether the purpose of clude a copy of each discovery request at the deposition is discovery or for use as evi- issue and the response, if any. dence. (c) Discovery limitations. The presiding offi- (2) The time, place, and manner of con- cer may limit the frequency or extent of use ducting depositions shall be as mutually of discovery methods described in these agreed by the parties or, failing such agree- rules. In doing so, generally the presiding of- ment, and upon proper application, governed ficer will consider whether: by order of the presiding officer. (1) The discovery sought is unreasonably (3) No testimony taken by deposition shall cumulative or duplicative, or is obtainable be considered as part of the evidence in the from some other source that is more conven- hearing of an appeal unless and until such ient, less burdensome, or less expensive; testimony is offered and received in evidence (2) The party seeking discovery has had at or before such hearing. It will not ordi- ample opportunity by discovery in the case narily be received in evidence if the depo- to obtain the information sought; or nent is available to testify at the hearing,

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but the presiding officer may admit testi- presiding officer in writing of his or her con- mony taken by deposition in his or her dis- currence or disagreement with the requested cretion. A deposition may be used to con- corrections. Failure to interpose timely ob- tradict or impeach the testimony of the wit- jection to a proposed correction shall be con- ness given at the hearing. In cases submitted sidered to be concurrence. Thereafter, the on the written record in lieu of an oral hear- presiding officer shall by order specify the ing, the presiding officer may, in his or her corrections to be made in the transcript. The discretion, receive depositions as evidence in presiding officer on his or her own initiative supplementation of that record. may order corrections to be made in the (4) Each party shall bear its own expenses transcript with prompt notice to the parties associated with the taking of any deposition of the proceeding. Any changes ordered by unless otherwise ordered by the presiding of- the presiding officer other than by agree- ficer. ment of the parties shall be subject to objec- (h) Sanctions. If a party fails to appear for tion and exception. a deposition, after being served with a proper notice, or fails to serve answers or objections § 952.23 Proposed findings and conclusions. to interrogatories, requests for admissions, (a) Each party to a proceeding, except one or requests for the production or inspection who fails to answer the complaint or, having of documents, after proper service, the party answered, either fails to appear at the hear- seeking discovery may request that the pre- ing or indicates in the answer that he or she siding officer impose appropriate orders. does not desire to appear, may, unless at the Failure of a party to comply with an order discretion of the presiding officer such is not pursuant to this rule may result in the pre- appropriate, submit proposed findings of siding officer’s ruling that the disobedient fact, conclusions of law, orders and sup- party may not support or oppose designated porting reasons either in oral or written charges or defenses or may not introduce form in the discretion of the presiding offi- designated matters in evidence. The pre- cer. The presiding officer may also require siding officer may also infer from the disobe- parties to any proceeding to submit proposed dient party’s failure to comply with the findings of fact, conclusions of law, orders, order that the facts to which the order re- and supporting reasons. Unless given orally, lated would, if produced or admitted, be ad- the date set for filing of proposed findings of verse to such party’s interests. In the sole fact, conclusions of law, orders and sup- discretion of the presiding officer, failure of porting reasons shall be within 30 days after a party to comply with an order pursuant to the delivery of the official transcript to the this rule may result in the presiding officer’s Recorder who shall notify both parties of the issuance of an order of default under date of its receipt. The filing date for pro- § 952.11(c). posed findings of fact, conclusions of law, orders and supporting reasons shall be the § 952.22 Transcript. same for both parties. If not submitted by (a) Hearings shall be reported and tran- such date, or unless extension of time for the scribed by a court reporter. Argument upon filing thereof is granted, they will not be in- any matter may be excluded from the tran- cluded in the record or given consideration. script by order of the presiding officer. A (b) Except when presented orally before the copy of the transcript shall be a part of the close of the hearing, proposed findings of fact record and the sole official transcript of the shall be set forth in serially numbered para- proceeding. Copies of the transcript shall be graphs and shall state with particularity all supplied to the parties to the proceeding by evidentiary facts in the record with appro- the reporter at rates not to exceed the max- priate citations to the transcript or exhibits imum rates fixed by contract between the supporting the proposed findings. Each pro- Postal Service and the reporter. Copies of posed conclusion shall be separately stated. parts of the official record including exhibits (c) Except when presented orally before the admitted into evidence, other than the tran- close of the hearing, proposed orders shall script, may be obtained by Respondent from state the statutory basis of the order and, the Recorder upon the payment of reason- with respect to orders proposed to be issued able copying charges. Items that cannot rea- pursuant to 39 U.S.C. 3005(a)(3), shall be set sonably be photocopied may be photographed forth in serially numbered paragraphs stat- and furnished in that form. ing with particularity the representations (b) Changes in the official transcript may Respondent and its representative shall be ordered by the presiding officer only to cease and desist from using for the purpose correct errors affecting substance and then of obtaining money or property through the only in the manner herein provided. Within mail. 10 days after the receipt by any party of a copy of the official transcript, or any part § 952.24 Decisions. thereof, he or she may file a motion request- (a) Initial decision by Administrative Law ing correction of the transcript. Opposing Judge. A written initial decision shall be ren- counsel shall, within such time as may be dered by an Administrative Law Judge as specified by the presiding officer, notify the soon as practical after completion of the

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hearing, or after close of the record in mat- alphabetically arranged; a list of statutes ters heard upon the written record in lieu of and texts cited with page references; an oral hearing under § 952.17(b)(10). The ini- (2) A concise abstract or statement of the tial decision shall include findings and con- case in briefs on appeal or in support of exclusions with the reasons therefor upon all ceptions; the material issues of fact or law presented (3) Numbered exceptions to specific find- on the record, and the appropriate orders or ings and conclusions of fact, conclusions of denial thereof. The initial decision shall be- law, or recommended orders of the presiding come the final agency decision unless an ap- officer in briefs on appeal or in support of ex- peal is taken in accordance with § 952.25. ceptions; and (b) Tentative or final decision by the Judicial (4) A concise argument clearly setting Officer. When the Judicial Officer presides at forth points of fact and of law relied upon in the hearing he or she shall issue a final or a support of or in opposition to each exception tentative decision. Such decision shall in- taken, together with specific references to clude findings and conclusions with the rea- the parts of the record and the legal or other sons therefor upon all the material issues of authorities relied upon. fact or law presented on the record, and the (f) Unless permission is granted by the Ju- appropriate orders or denial thereof. The dicial Officer no brief shall exceed 50 printed tentative decision shall become the final pages double spaced, using 12 point type. agency decision unless exceptions are filed in (g) The Judicial Officer will extend the accordance with § 952.25. time to file briefs only upon written applica- (c) Oral decisions. The presiding officer may tion for good cause shown. If the appeal brief render an oral decision (an initial decision or brief in support of exceptions is not filed by an Administrative Law Judge, or a ten- within the time prescribed, the defaulting tative or final decision by the Judicial Offi- party may be deemed to have abandoned the cer) at the close of the hearing when the na- appeal or waived the exceptions, and the ini- ture of the case and the public interest war- tial or tentative decision shall become the rant. A party which desires an oral decision final agency decision. shall notify the presiding officer and the op- § 952.26 Judicial Officer. posing party at least 5 days prior to the date (a) The Judicial Officer is authorized: set for the hearing. Either party may submit (1) To act as presiding officer; proposed findings, conclusions, and proposed (2) To render tentative decisions; orders either orally or in writing at the con- (3) To render final agency decisions; clusion of the hearing. (4) To issue Postal Service orders for the § 952.25 Exceptions to initial decision or Postmaster General; tentative decision. (5) To refer the record in any proceeding to the Postmaster General or the Deputy Post- (a) A party in a proceeding presided over master General for final agency decision; by an Administrative Law Judge may appeal (6) To remand a case to the presiding offi- to the Judicial Officer by filing exceptions in cer for consideration; and, a brief on appeal within 15 days from the re- (7) To revise or amend these rules of prac- ceipt of the Administrative Law Judge’s ini- tice. tial decision. (b) In determining appeals from initial de- (b) A party in a proceeding presided over cisions or exceptions to tentative decisions, by the Judicial Officer may file exceptions the entire official record will be considered within 15 days from the receipt of the Judi- before a final agency decision is rendered. cial Officer’s tentative decision. Before rendering a final agency decision, the (c) If an initial or tentative decision is ren- Judicial Officer may order the hearing re- dered orally by the presiding officer at the opened for the presentation of additional evi- close of the hearing, he or she may then oral- dence by the parties. ly provide notice to the parties participating in the hearing of the time limit within which § 952.27 Motion for reconsideration. an appeal must be filed. A party may file a motion for reconsider- (d) The date for filing the reply to an ap- ation of a final agency decision within 10 peal brief or to a brief in support of excep- days after receiving it or within such longer tions to a tentative decision by the Judicial period as the Judicial Officer may order. Officer is 10 days after the receipt thereof. Each motion for reconsideration shall be ac- No additional briefs shall be received unless companied by a brief clearly setting forth requested by the Judicial Officer. the points of fact and of law relied upon in (e) Briefs upon appeal or in support of ex- support of said motion. ceptions to a tentative decision by the Judi- cial Officer and replies thereto shall be filed § 952.28 Orders. in duplicate with the Recorder and contain (a) If an order is issued which prohibits de- the following matter: livery of mail to Respondent it shall be in- (1) A subject index of the matters pre- corporated in the record of the proceeding. sented, with page references; a table of cases The Recorder shall cause notice of the order

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to be published in the Postal Bulletin and day, in which event the period runs until the cause the order to be transmitted to such close of business on the next business day. postmasters and other officers and employees of the Postal Service as may be required § 952.32 Official record. to place the order into effect. The hearing transcript together with all (b) If an order is issued which requires Re- pleadings, orders, exhibits, briefs and other spondent to cease and desist from using cer- documents filed in the proceeding shall contain representations for the purpose of ob- stitute the official record of the proceeding. taining money or property through the mail, it shall be incorporated in the record of the § 952.33 Public information. proceeding and a copy thereof shall be served The Librarian of the Postal Service main- upon Respondent or his or her or its agent by tains for public inspection in the Library certified mail or by personal service, or if no copies of all initial, tentative and final agen- person can be found to accept service, serv- cy decisions and orders. The Recorder main- ice shall be accomplished by ordinary mail tains the complete official record of every to the last known address of Respondent or proceeding. his or her or its agent. If service is not accomplished by certified mail, a statement, § 952.34 Ex parte communications. showing the time and place of delivery, The provisions of 5 U.S.C. 551(14), 556(d), signed by the postal employee who delivered and 557(d) prohibiting ex parte communica- the order, shall be forwarded to the Re- tions apply to proceedings under these rules corder. of practice.

§ 952.29 Modification or revocation of orders. PART 953—RULES OF PRACTICE IN A party against which an order or orders PROCEEDINGS RELATIVE TO have been issued may file an application for MAILABILITY modification or revocation thereof. The Re- corder shall transmit a copy of the applica- Sec. tion to the Chief Postal Inspector or his or 953.1 Authority for rules. her designee, who shall file a written reply 953.2 Initiation. within 10 days after filing or such other pe- 953.3 Appeal. riod as the Judicial Officer may order. A 953.4 Service of notice; Reply; Motion for copy of the reply shall be sent to the appli- summary judgment. cant by the Recorder. Thereafter an order 953.5 Hearings. granting or denying such application will be 953.6 Compromise and informal dispositions. issued by the Judicial Officer. 953.7 Default; Appearances. 953.8 Location of hearing. § 952.30 Supplemental orders. 953.9 Change of place of hearing. When the Chief Postal Inspector or his or 953.10 Presiding officers. her designee, or the Chief Postal Inspector’s 953.11 Proposed findings of fact and conclu- designated representative shall have reason sions of law. to believe that a person is evading or at- 953.12 Initial decision. tempting to evade the provisions of any such 953.13 Appeal from initial decision. orders by conducting the same or a similar 953.14 Final Agency decision. enterprise under a different name or at a dif- 953.15 Expedition. ferent address, he or she may file a petition 953.16 Disposition. with accompanying evidence setting forth 953.17 Ex parte communications. the alleged evasion or attempted evasion and requesting the issuance of a supplemental AUTHORITY: 39 U.S.C. 204, 401. order or orders against the name or names SOURCE: 59 FR 31538, June 20, 1994, unless allegedly used. Notice shall then be given by otherwise noted. the Recorder to the person that the order has been requested and that an answer may be § 953.1 Authority for rules. filed within 10 days of the notice. The Judi- cial Officer, for good cause shown, may hold These rules of practice are issued by a hearing to consider the issues in con- the Judicial Officer of the U.S. Postal troversy, and shall, in any event, render a Service pursuant to authority dele- final decision granting or denying the sup- gated by the Postmaster General. plemental order or orders. § 953.2 Initiation. § 952.31 Computation of time. A designated period of time under these Mailability proceedings are initiated rules excludes the day the period begins, and upon the filing of a written appeal with includes the last day of the period unless the the Recorder, Judicial Officer Depart- last day is a Saturday, Sunday, or legal holi- ment, U.S. Postal Service, 2101 Wilson

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Boulevard, Suite 600, Arlington, VA (i) The notice, with a copy of the ap- 22201–3078. peal, shall be sent to the General Coun- sel or the Chief Postal Inspector or his [63 FR 66050, Dec. 1, 1998] or her designee at Postal Service head- § 953.3 Appeal. quarters. (ii) When the appellant’s address is The appeal shall: within the United States, the notice, (a) Identify the appellant; with a copy of the appeal, shall be sent (b) Describe or be accompanied by a to the postmaster at the office that de- copy of the determination or ruling livers mail to the appellant’s address. being appealed; The postmaster shall be instructed (c) Describe the character or content that, acting personally or through a of the matter the appellant wishes to supervisory employee or a postal in- have carried and delivered by the U.S. spector, he or she is to serve these doc- Postal Service; uments on the appellant. If the appel- (d) Request review of the determina- lant cannot be found within 3 days, the tion or ruling, specifying each and every reason why the appellant be- postmaster shall send these documents lieves the determination or ruling to the appellant by ordinary mail and should be reversed; forward a statement to the Recorder (e) Indicate whether the appellant de- that is signed by the delivering em- sires to have an oral hearing or, in- ployee and that specifies the time and stead, to have the case decided solely place of delivery. on the basis of the written record (i.e., (iii) When the appellant’s address is the appeal, the General Counsel’s or outside the United States, the notice, Chief Postal Inspector’s or his or her with a copy of the appeal, shall be sent designee’s reply reply, and any docu- to the appellant by registered airmail, ments submitted by the parties pursu- return receipt requested. A written ant to an order of the presiding offi- statement by the Recorder, noting the cer); and time and place of mailing, shall be ac- (f) Bear the signature, typed or print- cepted as proof of service in the event ed name, title, business address, and a signed and dated return receipt is not telephone number of any attorney at received. law representing the appellant in (b) Reply. The General Counsel or the bringing the appeal, and of each indi- Chief Postal Inspector or his or her vidual appellant or, if the appellant is designee shall file a written reply, in a partnership, corporation, limited li- triplicate, with the Recorder, within ability company, or unincorporated as- the aforementioned 15-day period or sociation, of the managing partner, any extension granted by the presiding chief executive officer, chief operating officer for good cause shown. If the officer, or other officer authorized to General Counsel’s or the Chief Postal bind the organization. Inspector’s or his or her designee’s [59 FR 31538, June 20, 1994, as amended at 71 reply fails to address any allegation in FR 53972, Sept. 13, 2006] the appeal, that allegation shall be deemed admitted. § 953.4 Service of notice; Reply; Motion for summary judgment. (c) Motion for summary judgment. Upon motion of either the General (a) Service of notice. (1) Upon receiving Counsel, the Chief Postal Inspector, or the appeal, the Recorder shall issue a his or her designee, or the appellant, or notice specifying that the Postal Serv- on the presiding officer’s own initia- ice General Counsel’s or Chief Postal tive, the presiding officer may find Inspector’s or his or her designee’s that the appeal and answer present no reply shall be filed within 15 days of re- genuine and material issues of fact receipt of the notice; and the time and place of the hearing (if one was requiring an evidentiary hearing, and quested). thereupon may render an initial deci- (2) The Recorder shall promptly serve sion upholding or reversing the deter- this notice on the parties as follows: mination or ruling. The initial decision

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shall become the final Agency decision spector or his or her designee has been if a timely appeal is not taken. deemed to be in default, the Judicial [59 FR 31538, June 20, 1994, as amended at 71 Officer shall take whatever action on FR 53972, Sept. 13, 2006] the appeal he deems appropriate. If an oral evidentiary hearing is to be held, § 953.5 Hearings. the appellant may appear at the hear- (a) In general, admissibility of evi- ing in person or by counsel. If either dence at hearings conducted under this party fails to appear at the hearing, part hinges on relevancy and materi- the presiding officer shall receive the ality. However, relevant evidence may evidence of the party appearing and be excluded if its probative value is render a decision. substantially outweighed by the danger of unfair prejudice, or by consider- [59 FR 31538, June 20, 1994, as amended at 71 ations of undue delay, or by needless FR 53972, Sept. 13, 2006] presentation of cumulative evidence. Testimony shall be given under oath or § 953.8 Location of hearing. affirmation, and witnesses are subject Unless otherwise ordered by the pre- to cross-examination. Stipulations of siding officer, the hearing shall be held fact are encouraged and may be re- at 2101 Wilson Boulevard, Suite 600, Ar- ceived in evidence. lington, VA 22201–3078, on the date set (b) Objections to the admission or ex- in the notice. clusion of evidence shall be in short form, stating the grounds of objections [63 FR 66050, Dec. 1, 1998] relied upon. The transcript shall not include argument or debate thereon ex- § 953.9 Change of place of hearing. cept as ordered by the presiding officer. (a) Not later than the date fixed for Rulings on such objections shall be a the filing of the reply, a party may file part of the transcript. a motion that the scheduled hearing be (c) Formal exceptions to the rulings held at a place other than that des- of the presiding officer made during ignated in the notice. The motion shall the course of the hearing are unneces- include a supporting statement out- sary. For all purposes for which an ex- lining: ception otherwise would be taken, it is (1) The evidence to be offered in such sufficient that a party, when the ruling place; of the presiding officer is made or sought, makes known the action he de- (2) The names and addresses of the sires the presiding officer to take or his witnesses who will testify; and objection to an action taken, and his (3) The reasons why such evidence grounds therefor. cannot be presented in Arlington, VA. (b) In ruling on the motion, the pre- § 953.6 Compromise and informal dis- siding officer shall consider the con- positions. venience and necessity of the parties Either party may request the other and the relevancy of the evidence to be to consider informal disposition of any offered. question of mailability, and the scheduled hearing date may be postponed by [59 FR 31538, June 20, 1994, as amended at 63 FR 66050, Dec. 1, 1998] the presiding officer for such period of time as may be necessary to accommo- § 953.10 Presiding officers. date settlement discussions between the parties. The presiding officer at any hearing shall be an Administrative Law Judge § 953.7 Default; Appearances. qualified in accordance with law (5 If a timely reply to the appeal is not U.S.C. 3105) and assigned by the Judi- filed, the presiding officer shall refer cial Officer (39 U.S.C. 204), or the Judi- the appeal to the Judicial Officer, who cial Officer, may at his discretion, may find that the General Counsel or elect to preside at the reception of evi- the Chief Postal Inspector or his or her dence. The Judicial Officer shall assign designee is in default. Whenever the cases to Administrative Law Judges General Counsel or the Chief Postal In- upon rotation if practicable.

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§ 953.11 Proposed findings of fact and the Judicial Officer, agree to waive any conclusions of law. of the procedures established in these Proposed findings of fact and conclu- rules. sions of law shall be submitted orally § 953.16 Disposition. or in writing at the conclusion of the hearing, or otherwise, as ordered by Mail matter found to be nonmailable the presiding officer. shall be held at the post office where detained for a period of 15 days from § 953.12 Initial decision. the date of the Postal Service decision, Unless given orally at the conclusion unless that period is extended by the of the hearing, the Administrative Law Judicial Officer. During this holding Judge shall render an initial decision period, the appellant may apply for the as expeditiously as practicable after withdrawal of the matter. If any such the conclusion of the hearing and the application is made, the General Coun- receipt of the proposed findings and sel or Chief Postal Inspector or his or conclusions, if any. The initial decision her designee shall be given notice and shall become the decision of the Postal the opportunity to oppose the applica- Service if an appeal is not perfected. tion. Upon the expiration of the hold- When the Judicial Officer presides at ing period with no application having the hearing, his powers shall include been made, the Judicial Officer shall those of an Administrative Law Judge, order that the matter be disposed of in but the Judicial Officer may render ei- accordance with 39 U.S.C. 3001(b). If a ther an initial or final decision. Excep- timely application is made, the Judi- tions may be filed to an initial decision cial Officer shall consider the applica- rendered by the Judicial Officer in action and any reasons advanced by the cordance with § 953.13. General Counsel or Chief Postal Inspec- tor or his or her designee for denying § 953.13 Appeal from initial decision. the application. The Judicial Officer shall thereafter order either that the Either party may file exceptions in a matter be returned to the applicant or brief on appeal to the Judicial Officer that it be disposed of in accordance within 5 days after receipt of the ini- with 39 U.S.C. 3001(b). tial decision unless additional time is granted. A reply brief may be filed [59 FR 31538, June 20, 1994, as amended at 71 within 5 days after the receipt of the FR 53972, Sept. 13, 2006] appeal brief by the opposing party. § 953.17 Ex parte communications. § 953.14 Final Agency decision. The provisions of 5 U.S.C. 551(14), The Judicial Officer shall render a 556(d), and 557(d) prohibiting ex parte final Agency decision. The decision communications are made applicable shall be served upon the parties and to proceedings under these rules of the postal official having custody of practice. any mail detained pursuant to the determination or ruling. PART 954—RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO THE § 953.15 Expedition. DENIAL, SUSPENSION, OR REV- For the purpose of further expedi- OCATION OF PERIODICALS MAIL tion, either party may move to have PRIVILEGES the hearing held at an earlier date than that specified in the notice. Either Sec. party may also move to have the ini- 954.1 Authority for rules. tial decision (if an Administrative Law 954.2 Scope of rules. Judge or the Judicial Officer is pre- 954.3 Informal dispositions. siding) or the final Agency decision (if 954.4 Office business hours. the Judicial Officer is presiding) ren- 954.5 Application. 954.6 Revocation or suspension. dered orally at the conclusion of the 954.7 Failure to appeal proposed action. hearing. The presiding officer may 954.8 Pleading. grant or deny any such motion. The 954.9 Default. parties may, with the concurrence of 954.10 Intervention or other participation.

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954.11 Hearings. § E213 of the Domestic Mail Manual.) 954.12 Change of place of hearing. An authorized administrative official 954.13 Appearances. of the Postal Service (hereinafter 954.14 Presiding officers. 954.15 Judicial Officer. called ‘‘the authorized official’’) rules 954.16 Procedure. upon all applications. If he or she de- 954.17 Transcript. nies the application he or she shall no- 954.18 Proposed findings and conclusions. tify the publisher specifying the rea- 954.19 Initial decision. sons for his or her denial and attaching 954.20 Appeals. a copy of these rules. Before taking ac- 954.21 Motion for reconsideration. tion on an application, the authorized 954.22 Continuances. 954.23 Computation of time. official may call upon the publisher for 954.24 Official record. additional information or evidence to 954.25 Public information. support or clarify the application. Fail- 954.26 Ex parte communications. ure of the publisher to furnish such in- AUTHORITY: 39 U.S.C. 204, 401. formation or evidence may be cause for the authorized official to deny the ap- SOURCE: 36 FR 11567, June 16, 1971, unless plication as incomplete or, on its face, otherwise noted. not fulfilling the requirements for § 954.1 Authority for rules. entry. These rules of practice are issued by [36 FR 11567, June 16, 1971, as amended at 38 the Judicial Officer of the U.S. Postal FR 17217, June 29, 1973; 42 FR 30504, June 15, Service pursuant to authority dele- 1977; 62 FR 66998, Dec. 23, 1997] gated by the Postmaster General. § 954.6 Revocation or suspension. § 954.2 Scope of rules. When the authorized official deter- The rules of practice shall apply to mines that a publication is no longer all Postal Service proceedings con- entitled to Periodicals mailing privi- cerning applications, denials, suspen- leges, he or she shall issue a ruling of sions and revocations of Periodicals suspension or revocation to the pub- mailing privileges arising under former lisher at the last known address of the title 39 U.S.C. 4351, 4352, 4353, 4354, 4355, office of publication stating the rea- 4356, and 4369 as continued by sec. 3 of sons and attaching a copy of these the Postal Reorganization Act (Pub. L. rules. 91–375). [36 FR 11567, June 16, 1971, as amended at 38 FR 17217, June 29, 1973; 62 FR 66998, Dec. 23, [36 FR 11567, June 16, 1971, as amended at 62 1997] FR 66998, Dec. 23, 1997]

§ 954.3 Informal dispositions. § 954.7 Failure to appeal proposed action. These rules do not preclude the infor- A ruling of the authorized official mal dispositions of Periodicals mailing shall become final upon failure of the privilege matters before or after insti- publisher to file a petition in accord- tution of proceedings. ance with the requirements of § 954.8(b). [36 FR 11567, June 16, 1971, as amended at 62 [36 FR 11567, June 16, 1971, as amended at 38 FR 66998, Dec. 23, 1997] FR 17217, June 29, 1973] § 954.4 Office business hours. § 954.8 Pleading. The offices of the officials mentioned (a) Place of filing. Parties shall file an in these rules are located at 2101 Wil- original and three copies of all docu- son Boulevard, Suite 600, Arlington, VA ments of record, unless otherwise or- 22201–3078 and are open Monday dered by the presiding officer with the through Friday from 8:15 a.m. to 4:45 Recorder of the Postal Service, who p.m. shall cause copies to be delivered to [63 FR 66050, Dec. 1, 1998] the other parties and to the presiding officer. Service is ordinarily made on § 954.5 Application. the private parties by certified mail A publisher may file an application and delivery is deemed complete when for Periodicals mailing privileges. (See a document or notice of its arrival is

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left at the designated address. The Re- an Administrative Law Judge, the dis- corder shall maintain a docket and the missal may be appealed to the Judicial files in all proceedings. Officer within 15 days from the date of (b) Petition. A publisher may appeal the order. from a ruling of the authorized official by filing a petition within 15 days of § 954.10 Intervention or other partici- the receipt of the ruling unless the pation. time is extended by the authorized offi- To intervene or otherwise participate cial. The petition shall state the rea- in a proceeding, any person may file a sons why the publisher (designated timely application in accordance with ‘‘Petitioner’’ in the proceeding) believes the ruling of the authorized official is § 954.8(a). A timely application is one erroneous and shall provide the address which will not unduly delay the pro- at which documents may be served on ceeding. The application shall state the Petitioner. The petition shall also whom the potential intervenor rep- allege facts showing compliance with resents, his or her interest, the extent each provision of law or regulation on to which he or she desires to partici- which the publisher’s claim to Periodi- pate, and the evidence he or she seeks cals mail privileges is based. The pub- to introduce. The presiding officer lisher shall attach to his or her peti- shall fix the time within which the par- tion a copy of the letter of the author- ties shall answer the application. The ized official denying, suspending or re- presiding officer shall grant or deny voking Periodicals mail privileges. the application on such terms and con- (c) Notice of hearing. Upon receipt of ditions as he or she deems appropriate. the petition the Recorder shall set a In so doing the presiding officer will date for the hearing and issue a notice consider, among other things, whether of hearing to the parties stating the intervention or other participation is time and place of the hearing, the date consistent with the timely and proper for filing an answer, and the name of adjudication of the rights of the origi- the presiding officer. nal parties. (d) Answer. The authorized official (designated the ‘‘Respondent’’ in the [31 FR 5198, Mar. 31, 1966. Redesignated at 31 proceeding) shall answer the petition FR 16270, Dec. 20, 1966; 62 FR 66998, Dec. 23, within 15 days after filing and admit or 1997] deny each allegation of the petition. (e) Amendment. An amendment of a § 954.11 Hearings. pleading may be offered by any party Hearings are held at 2101 Wilson Bou- at any time prior to the close of the levard, Suite 600, Arlington, VA 22201– hearing. If the presiding officer deems 3078, or other locations designated by it appropriate to permit the amend- the presiding officer. ment of a pleading, he or she may impose such conditions, by way of con- [63 FR 66050, Dec. 1, 1998] tinuance of the hearing date or otherwise, as he or she considers necessary § 954.12 Change of place of hearing. to assure a fair hearing. Not later than the date fixed for the [36 FR 11567, June 16, 1971, as amended at 38 filing of the answer, a party may file a FR 17217, June 29, 1973; 62 FR 66998, Dec. 23, request that a hearing be held to re- 1997] ceive evidence in his or her behalf at a place other than that designated for § 954.9 Default. hearing in the notice. He or she shall If a publisher fails to appear at the support his request with a statement hearing, the presiding officer may: (a) setting forth: Dismiss the petition; (b) order the peti- (a) The evidence to be offered in such tioner to show cause within 30 days place; from the date of the order why an order (b) The names and addresses of the of dismissal should not be entered, and witnesses who will testify; thereafter enter such order as the presiding officer deems to be appropriate. (c) The reasons why such evidence If the petition is dismissed by order of cannot be produced at Arlington, VA.

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The presiding officer shall give consid- (7) Order prehearing conferences for eration to the convenience and neces- the settlement or simplification of sity of the parties and the relevancy of issues by consent of the parties; the evidence to be offered. (8) Order the proceeding reopened at any time prior to his or her decision [36 FR 11567, June 16, 1971, as amended at 62 for the receipt of additional evidence; FR 66998, Dec. 23, 1997; 63 FR 66050, Dec. 1, (9) Render an initial decision. 1998] [36 FR 11567, June 16, 1971, as amended at 38 § 954.13 Appearances. FR 17217, June 29, 1973; 38 FR 20263, July 30, (a) The General Counsel of the Postal 1973; 62 FR 66998, Dec. 23, 1997] Service or a member of his or her staff § 954.15 Judicial Officer. designated by him or her shall represent the authorized official. The Judicial Officer is authorized (a) (b) A publisher or intervenor may ap- to act as presiding officer at hearings pear and be heard in person or by at- and (b) to render a final Postal Service torney. Attorneys may practice before Decision for the Postmaster General. the Postal Service in accordance with On appeal from an Initial Decision of an Administrative Law Judge, the Ju- applicable rules issued by the Judicial dicial Officer will consider the entire Officer. See part 951 of this chapter. record including the initial decision (c) An attorney representing a pub- and the exceptions to that decision. Be- lisher or intervenor shall file a written fore any final agency decision has been authorization from the publisher or in- rendered, the Judicial Officer may tervenor before he or she may partici- order the hearing reopened for the pre- pate in the proceeding. The publisher siding officer to take additional evi- or intervenor must promptly file a no- dence. tice of change of attorneys. (d) When a publisher or intervenor is § 954.16 Procedure. represented by an authorized attorney (a) Evidence. The general rules of evi- all subsequent pleadings shall be served dence governing civil proceedings in upon the attorney. matters not involving trial by jury in [36 FR 11567, June 16, 1971, as amended at 62 the courts of the United States apply. FR 66998, Dec. 23, 1997] The rules may be relaxed to the extent that the presiding officer may deem § 954.14 Presiding officers. proper to insure an adequate and fair (a) The Chief Administrative Law hearing. The presiding officer may ex- Judge shall assign each case to an Ad- clude irrelevant or repetitious evi- ministrative Law Judge qualified in ac- dence. cordance with law to preside over the (b) Subpoenas. The Postal Service is hearing. Such assignments shall be not authorized to issue subpoenas. made, so far as practical, in rotation. (c) Fees. The Postal Service does not pay fees and expenses for witnesses of, (b) The presiding officer shall have or depositions requested by, the pub- authority to: lisher or intervenor. (1) Administer oaths and affirma- (d) Depositions. Depositions may be tions; taken as follows: (2) Examine witnesses; (1) Not later than 5 days after the fil- (3) Rule upon matters of evidence and ing of the authorized officials’s answer, procedure; any party may file application with the (4) Order any pleading amended upon presiding officer for the taking of testi- motion of a party at any time prior to mony by deposition. In support of such the close of the hearing; application the applicant shall submit (5) Maintain discipline and decorum under oath or affirmation a statement and exclude from the hearing any per- setting out the reasons why such testi- son acting in an indecorous manner; mony should be taken by deposition, (6) Require the filing of briefs on any the time and the place, and the name matter upon which he or she is re- and address of the witness whose depo- quired to rule; sition is desired, the subject matter of

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the testimony of each witness, its rel- one copy of the deposition for the offi- evancy, and the name and address of cial record, and shall serve one copy the person before whom the deposition upon the opposing party. is to be taken. (6) Within the United States or with- (2) If the application is granted, the in a territory or insular possession sub- order for the taking of the deposition ject to the dominion of the United will specify the time and place thereof, States, depositions may be taken be- the name of the witness, the person before an officer authorized to administer fore whom the deposition is to be taken oaths by the laws of the United States and any other necessary information. or of the place where the examination (3) Each witness testifying upon dep- is held; within a foreign country, depo- osition shall be duly sworn by the dep- sitions may be taken before a secretary osition officer and the adverse party of an embassy or legation, consul gen- shall have the right to cross-examine. eral, vice consul or consular agent of The questions and answers together the United States, or any other person with all objections, shall be reduced to designated in the order for the taking writing and, unless waived by stipula- of a deposition. tion of the parties, shall be read to and (7) Depositions may also be taken subscribed by the witness in the pres- and submitted on written interrog- ence of the deposition officer who shall atories in substantially the same man- certify it in the usual form. The deposi- ner as depositions taken by oral exam- tion officer shall file the testimony ination. When a deposition is taken taken by deposition as directed in the upon written interrogatories and cross- order. All objections made at the time interrogatories, none of the parties of examination shall be noted by the shall be present or represented, and no deposition officer and the evidence ob- person, other than the witness, a steno- jected to shall be taken subject to the graphic reporter, and the deposition of- objections. In lieu of participating in ficer shall be present at the examina- the oral examination, a party may tion of the witness, which fact shall be transmit written interrogatories to the certified by the officer, who shall pro- deposition officer, who shall propound pound the interrogatories and cross-in- them to the witness and record the an- terrogatories to the witness in their swers verbatim. Objections to rel- order and reduce the testimony to evancy or materiality of testimony, or writing in the witness’ own words. to errors and irregularities occurring at the oral examination in the manner [36 FR 11567, June 16, 1971, as amended at 62 of taking the deposition, in the form of FR 66998, Dec. 23, 1997] the questions or answers, in the oath or § 954.17 Transcript. affirmation, or in the conduct of the parties and errors of any kind which (a) A contract reporter of the Postal might be obviated, cured or removed if Service under the supervision of the promptly presented, are waived unless presiding officer shall report hearings. timely objection is made at the taking The reporter shall supply the parties of the deposition. with copies of the transcript at rates (4) At the hearing any part or all of not to exceed those fixed by contract the deposition may be offered in evi- between the Postal Service and the re- dence by any party who was present or porter. represented at the taking of the deposi- (b) Changes in the official transcript tion or who had notice thereof. If the may be made only when they involve deposition is not offered and received substantial errors. A party may file a in evidence, it shall not be considered motion for correction of the official as a part of the record in the pro- transcript within 10 days after his or ceeding. The admissibility of deposi- her receipt of the transcript or any tions or parts thereof shall be governed part thereof. Other parties shall, with- by the rules of evidence. in such time as may be specified by the (5) The party requesting the deposi- presiding officer, notify the presiding tion shall pay all fees required to be officer in writing if they object to the paid to witnesses and the deposition of- requested corrections. Failure of a ficer, and shall provide an original and party to interpose timely objection to

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a proposed correction may be consid- (b) If an oral initial decision is not ered by the presiding officer to be con- rendered, the presiding officer shall currence. The presiding officer shall render a written initial decision with then specify the corrections to be made all due speed after the parties have in the transcript. He or she may on his submitted all posthearing material. or her own initiative order corrections The initial decision shall become the in the transcript after notice to the final agency decision unless it is ap- parties subject to their objection. pealed. (c) The initial decision shall include [36 FR 11567, June 16, 1971, as amended at 62 FR 66998, Dec. 23, 1997] findings upon all material issues of fact and law presented on the record and § 954.18 Proposed findings and conclu- the reasons for those findings. sions. [36 FR 11567, June 16, 1971, as amended at 62 (a) A party to a proceeding may sub- FR 66998, Dec. 23, 1997] mit proposed findings of fact and conclusions of law to the presiding officer. § 954.20 Appeals. The presiding officer shall determine (a) A party may appeal to the Judi- whether they shall be oral or written. cial Officer from an initial decision by The presiding officer may require par- filing exceptions in a brief on appeal ties to a proceeding to submit proposed within 15 days from the receipt of a findings of fact and conclusions of law written or oral initial decision. with supporting reasons. When the pro- (b) The time for the filing of the posed findings and conclusions are not reply brief is 10 days after receipt of submitted orally they shall be filed the appeal brief. No additional briefs within 15 days after delivery of the offi- shall be received unless requested by cial transcript to the Recorder. The the Judicial Officer. Recorder shall notify the parties of the (c) Appeal briefs shall contain the filing date which shall be the same for following matter in the order indi- both parties. If not submitted by that cated: date, the findings and conclusions will (1) A subject index of the matters not be considered or included in the presented with page references; record. (2) A table of cases alphabetically ar- (b) Except when presented orally, ranged; proposed findings of fact and conclu- (3) A list of statutes and texts cited sions of law shall be set forth in num- with page references; bered paragraphs and shall state with (4) A concise abstract or statement of particularity all evidentiary facts in the case; the record with appropriate citations (5) Numbered exceptions to the find- to the transcript or exhibits relied ings and conclusions of the presiding upon to support the conclusions pro- officer and the reasons for the excep- posed. Each proposed conclusion shall tions. be separately stated. (d) Reply briefs shall contain paragraphs (c) (1), (2), and (3) of this section [36 FR 11567, June 16, 1971, as amended at 62 FR 66998, Dec. 23, 1997] and the reasons for opposing the exceptions. § 954.19 Initial decision. [36 FR 11567, June 16, 1971, as amended at 38 (a) Upon request of either party the FR 17217, June 29, 1973] presiding officer may render an oral initial decision at the close of the hear- § 954.21 Motion for reconsideration. ing when the nature of the case and the Within 10 days from the date thereof, public interest warrant. If a party de- or such longer period as may be fixed sires an oral initial decision he or she by the Judicial Officer, either party shall notify the presiding officer and may file a motion for reconsideration the opposing party at least 5 days prior of a final Agency decision. to the date set for hearing. Parties may then submit proposed findings and § 954.22 Continuances. conclusions orally or in writing at the For good cause shown, continuances conclusion of the hearing. or extensions may be granted by the

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presiding officer. Similar action may 955.12 Submission without a hearing. be taken by the Judicial Officer when 955.13 Optional Small Claims (Expedited) the proceeding is on appeal. and Accelerated Procedures. 955.14 Settling the record. § 954.23 Computation of time. 955.15 Discovery. 955.16 Interrogatories to parties, admission A designated period of time under of facts, and production and inspection of these rules excludes the day the period documents. begins, and includes the last day of the 955.17 Depositions. period unless the last day is a Satur- 955.18 Hearings—where and when held. 955.19 Notice of hearings. day, Sunday, or holiday, in which 955.20 Unexcused absence of a party. event the period runs until the close of 955.21 Nature of hearings. business on the next working day. 955.22 Examination of witnesses. 955.23 Copies of papers, withdrawal of exhib- § 954.24 Official record. its. The pleadings, orders, exhibits, tran- 955.24 Posthearing briefs. 955.25 Transcript of proceedings. script of testimony, briefs, decisions 955.26 Representation of the parties. and other documents filed in the pro- 955.27 Withdrawal of attorney. ceeding constitute the official record of 955.28 Suspension. the proceeding. 955.29 Decisions. 955.30 Motion for reconsideration. § 954.25 Public information. 955.31 Dismissal without prejudice. 955.32 Dismissal for failure to prosecute. The Librarian of the Postal Service 955.33 Ex parte communications. maintains for public inspection in the 955.34 Sanctions. Library copies of all initial and final 955.35 Subpoenas. Agency decisions. The Recorder of the 955.36 Effective dates and applicability. Postal Service maintains a complete AUTHORITY: 39 U.S.C. 204, 401; 41 U.S.C. 607, official record of every proceeding. A 608, 610. person may examine a record upon au- EFFECTIVE DATE NOTE: At 76 FR 37660, June thorization by the Judicial Officer. 28, 2011, the authority citation to part 955 [36 FR 11567, June 16, 1971, as amended at 62 was revised, effective July 28, 2011. For the FR 66998, Dec. 23, 1997] convenience of the user, the revised text is set forth as follows: § 954.26 Ex parte communications. AUTHORITY: 39 U.S.C. 204, 401; 41 U.S.C. 7101–7109. The provisions of 5 U.S.C. 551(14), 556(d) and 557(d) prohibiting ex parte SOURCE: 74 FR 20592, May 5, 2009, unless otherwise noted. communications are made applicable to proceedings under these rules of § 955.1 Jurisdiction, procedure, service practice. of documents. [42 FR 5358, Jan. 28, 1977] (a) Jurisdiction for considering appeals. Pursuant to the Contract Disputes Act PART 955—RULES OF PRACTICE BE- of 1978, 41 U.S.C. 601–613, the Postal FORE THE POSTAL SERVICE Service Board of Contract Appeals (Board) has jurisdiction to consider and BOARD OF CONTRACT APPEALS decide any appeal from a decision of a contracting officer of the United States Sec. Postal Service or the Postal Regu- 955.1 Jurisdiction, procedure, service of documents. latory Commission relative to a con- 955.2 Notice of appeals. tract made by either. In addition the 955.3 Contents of notice of appeal. Board has jurisdiction over other mat- 955.4 Forwarding of appeals. ters assigned to it by the Postmaster 955.5 Preparation, contents, organization, General, and over matters otherwise forwarding, and status of appeal file. authorized by applicable law. 955.6 Motions. (b) Organization and location of the 955.7 Pleadings. Board. (1) The Board is located at 2101 955.8 Amendments of pleadings or record. 955.9 Hearing election. Wilson Boulevard, Suite 600, Arlington, 955.10 Prehearing briefs. Virginia 22201–3078. The Board’s tele- 955.11 Prehearing or presubmission con- phone number is (703) 812–1900, and its ference. Web site is http://www.usps.gov/judicial.

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The Board’s fax number is (703) 812– (iii) Requests for extensions of time 1901. from either party shall be made in (2) The Board consists of the Judicial writing stating good cause therefor, Officer as Chairman, the Associate Ju- shall represent that the moving party dicial Officer as Vice Chairman, and has contacted the opposing party about the Judges of the Board, as appointed the request, or made reasonable and by the Postmaster General in accord- good faith efforts to do so, and shall in- ance with the Contract Disputes Act of dicate whether the opposing party con- 1978, 41 U.S.C. 601–613. All members of sents to the extension. If the request the Board shall meet the qualifications for extension of time is filed after the established in the Contract Disputes time for taking the required action has Act. In general, appeals are assigned to expired, the request should indicate the a panel of at least three members of reasons for the party’s failure to have the Board. The decision of a majority submitted the request before that time of the panel constitutes the decision of expired. the Board. (4) Place of filings. Unless the Board otherwise directs, pleadings and other (c) Board procedures— (1) Rules. Ap- communications shall be filed with the peals to the Board are handled in ac- Recorder of the Board at its office at cordance with the rules of the Board. 2101 Wilson Boulevard, Suite 600, Ar- (2) Administration and interpretation of lington, Virginia 22201–3078. Generally, rules. These rules will be interpreted so and unless otherwise prescribed by law, as to secure a just and inexpensive de- rule or applicable Board order, the termination of appeals without unnec- Board considers documents filed upon essary delay. Emphasis is placed upon the earlier of receipt by the Recorder the sound administration of these rules of the Board during the Board’s work- in specific cases, because it is impracti- ing hours (8:45–4:45) or, if mailed, the cable to articulate a rule to fit every date mailed to the Board. A United possible circumstance which may be States Postal Service postmark shall encountered. The Board may consider be prima facie evidence that the docu- the Federal Rules of Civil Procedure ment with which it is associated was for guidance in construing those Board mailed on the date of the postmark. rules that are similar to Federal Rules (5) Service. Documents shall be served and for matters not specifically cov- personally or by mail, addressed to the ered herein. party upon whom service is to be made. (3) Time, computation, and extensions. Copies of simultaneous briefs shall be (i) All time limitations specified for filed directly with the Board for dis- various procedural actions are com- tribution and shall not be sent directly puted as maximums, and are not to be by the parties to each other. The party fully exhausted if the action described filing any other document with the can be accomplished in a lesser period. Board shall send a copy thereof to the These time limitations are similarly opposing party, by an equally or more eligible for extension in appropriate expeditious means of transmittal, not- circumstances. ing on the document filed with the (ii) Except as otherwise provided by Board, or on the transmitting letter, law, in computing any period of time that a copy has been so furnished. The prescribed by these rules or by any filing of a document by fax trans- order of the Board, the day of the event mission occurs upon receipt by the from which the designated period of Board of the entire legible submission time begins to run shall not be in- by fax. The Board may determine not cluded, but the last day of the period to extend a deadline for filing if the ex- shall be included unless it is a Satur- tension is necessary solely because the day, Sunday, or a federal holiday in Board’s fax machine is busy or other- which event the period shall run to the wise unavailable when a filing is due. end of the next business day. Except as Submissions filed by fax shall be fol- otherwise provided in these rules or an lowed promptly by filing by mail. applicable order, prescribed periods of EFFECTIVE DATE NOTE: At 76 FR 37660, June time are measured in calendar days 28, 2011, § 955.1 was amended in the first sen- rather than business days. tence of paragraph (a) and the first sentence

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of paragraph (b)(2) by removing ‘‘41 U.S.C. erwise), the contractor and contracting 601–613’’, and adding ‘‘41 U.S.C. 7101–7109’’ in officer will be advised promptly of its its place, effective July 28, 2011. receipt, and the contractor will be furnished a copy of these rules. § 955.2 Notice of appeals. Notice of an appeal must be in writ- § 955.5 Preparation, contents, organi- ing, and the original, together with zation, forwarding, and status of two copies, may be filed with the con- appeal file. tracting officer from whose decision (a) Duties of the respondent. Within 30 the appeal is taken, or may be filed di- days from receipt of the Board’s dock- rectly with the Board. The notice of eting notice, or such other period as appeal must be mailed or otherwise the Board may order, the respondent’s filed within the time specified by appli- counsel shall file with the Board an ap- cable law. peal file consisting of all documents § 955.3 Contents of notice of appeal. pertinent to the appeal and shall provide a copy to the appellant. The ap- (a) A notice of appeal from a con- peal file shall include: tracting officer’s decision should indi- (1) The claim and contracting offi- cate that an appeal is thereby in- cer’s final decision from which the ap- tended. It should identify the contract peal is taken; by number or other identifying ref- (2) The contract, including pertinent erence, and identify the decision from specifications, amendments, plans and which the appeal is taken, or it should drawings; attach a copy of the contracting officer’s decision. If an appeal is taken (3) All correspondence between the from the failure of a contracting offi- parties pertinent to the appeal; cer to issue a decision, the notice of ap- (4) Transcripts of any testimony peal should describe in detail the claim taken during the course of proceedings, that the contracting officer has failed and affidavits or statements of any to decide and/or attach a copy of the witnesses on the matter in dispute claim that the contracting officer has made prior to the filing of the notice of failed to decide, and explain that the appeal with the Board; and contracting officer has failed to decide (5) Any additional information con- the claim as required. sidered pertinent. (b) The notice of appeal should be (b) Duties of the appellant. Within 30 signed personally by the appellant (the days after receipt of a copy of the ap- contractor taking the appeal), or by an peal file, the appellant shall supple- officer of the appellant corporation or ment the appeal file by transmitting to member of the appellant firm, or by the Board any documents not con- the contractor’s duly authorized rep- tained therein considered to be perti- resentative or attorney. The complaint nent to the appeal, and shall furnish referred to in § 955.7 may be filed with copies of such documents to Postal the notice of appeal, or the appellant Service counsel. may designate the notice of appeal as a (c) Organization of appeal file. Docu- complaint, if it otherwise fulfills the ments in the appeal file or supplement, requirements of a complaint. as applicable, may be originals or legible copies thereof, and shall be ar- § 955.4 Forwarding of appeals. ranged in chronological order where Upon receipt of a notice of appeal in practicable, numbered sequentially, any form, the contracting officer shall tabbed, and indexed to identify the indicate thereon the date of mailing contents. Page numbering shall be con- (or date of receipt, if otherwise consecutive and continuous from one docu- veyed) and within 10 days shall forward ment to the next, so that the complete said notice of appeal to the Board, and file or supplement, as applicable, will shall include a copy of the contracting consist of one set of consecutively officer’s final decision if one has been numbered pages. issued. Following receipt by the Board (d) Lengthy documents. The Board of the notice of an appeal (whether may waive the requirement of fur- through the contracting officer or oth- nishing to the other party copies of

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bulky, lengthy, or out-of-size docu- § 955.12, in lieu of a motion for sum- ments in the appeal file when a party mary judgment. has shown that doing so would impose (1) Motions for summary judgment an undue burden. The party filing with shall include a separate document ti- the Board a document as to which such tled Statement of Uncontested Facts, a waiver has been granted, shall notify which shall contain in separately num- the other party at the time of filing bered paragraphs all of the material that the document is available for in- facts upon which the moving party spection at the offices of the Board or bases its motion and as to which it of the party. contends there is no genuine issue. (e) Status of documents in appeal file. This statement shall include references Documents contained in the appeal file to affidavits, declarations and/or docu- are considered, without further action ments relied upon to support such by the parties, as part of the record statement. upon which the Board will render its (2) The opposing party shall file with decision, unless a party objects to the its opposition a separate document ti- consideration of a particular docu- tled Statement of Genuine Issues. This ment. Unless otherwise provided by Board order, any such objection shall document shall identify, by reference be made at least 10 days prior to a to specific paragraph numbers in the hearing or the date specified for set- moving party’s Statement of tling the record in the event there is no Uncontested Facts, those facts as to hearing on the appeal. If timely objec- which the opposing party claims there tion to a document is made, the Board is a genuine issue necessary to be liti- will rule upon its admissibility into the gated. An opposing party shall state record as evidence in accordance with the precise nature of its disagreement, §§ 955.14 and 955.21. and support its opposition with references to affidavits, declarations and/ § 955.6 Motions. or documents that demonstrate the ex- (a) Any motion addressed to the ju- istence of a genuine dispute. risdiction of the Board shall be prompt- (3) The moving party and the non- ly filed. Hearing on the motion may be moving party shall each submit a afforded on application of either party. memorandum of law supporting or op- The Board may at any time and on its posing summary judgment. own motion raise the issue of its juris- (4) If, despite reasonable efforts, the diction to proceed with a particular opposing party cannot present facts es- case. sential to justify its opposition, the (b) A motion filed in lieu of an an- Board may defer ruling on the motion swer shall be filed no later than the to permit affidavits to be obtained or date on which the answer is required to depositions to be taken or other dis- be filed or such later date as may be es- covery to be conducted, or may issue tablished by Board order. Any other such other order as is just. The parties dispositive motion shall be filed as should not expect the Board to search soon as practicable after the grounds the record for evidence in support of ei- therefor are known. ther party’s position. (c) Motions for summary judgment may be considered by the Board. How- EFFECTIVE DATE NOTE: At 76 FR 37660, June ever, the Board may defer ruling on a 28, 2011, § 955.6 was amended by revising paragraph (a), effective July 28, 2011. For the con- motion for summary judgment, in its venience of the user, the revised text is set discretion, until after a hearing or forth as follows: other presentation of evidence. Mo- tions for summary judgment may be § 955.6 Motions. filed only when a party believes that, (a) Any motion addressed to the jurisdic- based upon uncontested material facts, tion of the Board shall be promptly filed. it is entitled to relief as a matter of Oral argument on the motion may be af- law. The parties are to consider pro- forded on application of either party, in the ceeding by submission of the case with- Board’s discretion, or on the Board’s initia- out a hearing in accordance with tive. The Board may at any time and on its

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own initiative raise the issue of its jurisdic- EFFECTIVE DATE NOTE: At 76 FR 37660, June tion to proceed with a particular case. 28, 2011, § 955.7 was amended by revising paragraph (a), effective July 28, 2011. For the con- * * * * * venience of the user, the revised text is set forth as follows:

§ 955.7 Pleadings. § 955.7 Pleadings. (a) Appellant. Within 45 days after re- (a) Appellant. Within 45 days after receipt ceipt of notice of docketing of the ap- of notice of docketing of the appeal, the appeal, the appellant shall file with the pellant shall file with the Board a complaint Board a complaint setting forth simple, setting forth simple, concise and direct statements of each of its claims, alleging the concise and direct statements of each basis, with appropriate reference to contract of its claims, alleging the basis, with provisions, for each claim, and the dollar appropriate reference to contract pro- amount claimed, and shall serve the respond- visions, for each claim, and the dollar ent with a copy. This pleading shall fulfill amount claimed, and shall serve the re- the generally recognized requirements of a spondent with a copy. This pleading complaint although no particular form or shall fulfill the generally recognized formality is required. Upon the appellant’s request or on the Board’s own initiative, the requirements of a complaint although appellant’s claim, notice of appeal or other no particular form or formality is re- document may be deemed to constitute the quired. Should the complaint not be complaint if in the opinion of the Board the filed within the time required, appel- issues before the Board are sufficiently de- lant’s claim and notice of appeal may, fined. if in the opinion of the Board the issues before the Board are sufficiently de- * * * * * fined, be deemed to constitute the complaint and the respondent shall be so § 955.8 Amendments of pleadings or notified. record. (b) Respondent. Within 30 days from (a) Upon its own initiative or upon receipt of said complaint, or the afore- application by a party, the Board may, said notice from the Board, the re- in its discretion, order a party to sub- spondent shall prepare and file with mit a more definite statement of the the Board an answer thereto, setting complaint or answer, or to reply to an forth simple, concise, and direct state- answer. ments of the respondent’s defenses to (b) When issues within the proper each claim asserted by the appellant, scope of an appeal, but not raised in and shall serve the appellant with a the pleadings, have been raised without copy. This pleading shall fulfill the objection or with permission of the generally recognized requirements of Board at a hearing or in record submis- an answer, and shall set forth any af- sions, they may be treated in all re- firmative defenses or counterclaims as spects as if they had been raised in the appropriate. Should the answer not be pleadings. If evidence is objected to at filed within the time required, the a hearing on the ground that it is not Board may, in its discretion, enter a within the issues raised by the plead- general denial on behalf of the respond- ings, in its discretion the Board may ent, and the appellant shall be so noti- admit the evidence and grant the ob- fied. jecting party a continuance or other (c) Affirmative claims by the respond- relief if necessary to enable it to meet ent. Where an appellant has appealed such evidence. an affirmative claim by the respondent asserted in a final decision by a Postal § 955.9 Hearing election. Service contracting officer, such as a As directed by Board order, each termination for default or a Postal party shall inform the Board, in writ- Service claim that a contractor owes ing, whether it desires a hearing as pre- the Postal Service money under a con- scribed in §§ 955.18 through 955.25, or in tract, the Board may order the re- the alternative submission of its case spondent to file the complaint as de- on the record without a hearing as prescribed in § 955.7(a), and the appellant scribed in § 955.12. If a hearing is elect- to file the answer as described in ed, the election should state where and § 955.7(b). when the electing party desires the

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hearing to be conducted and should ex- § 955.11 Prehearing or presubmission plain the reasons for its choices. conference.

EFFECTIVE DATE NOTE: At 76 FR 37660, June (a) Whether the case is to be sub- 28, 2011, § 955.9 was revised, effective July 28, mitted pursuant to § 955.12, or heard 2011. For the convenience of the user, the re- pursuant to §§ 955.18 through 955.25, the vised text is set forth as follows: Board may upon its own initiative or upon the application of either party, § 955.9 Hearing request. convene a conference to consider: As directed by Board order, each party (1) The simplification or clarification shall inform the Board, in writing, whether of the issues; it requests a hearing as prescribed in §§ 955.18 (2) The possibility of obtaining stipu- through 955.25, or in the alternative submis- lations, admissions, agreements on sion of its case on the record without a hearing as prescribed in § 955.12. If a hearing is re- documents, understandings on matters quested, the request should state where and already of record, or similar agree- when the requesting party desires the hear- ments which will avoid unnecessary ing to be conducted and should explain the proof; reasons for its choices. After considering the (3) The limitation of the number of parties’ requests, the Board will determine expert witnesses, or avoidance of simi- whether a hearing will be held. lar cumulative evidence, if the case is to be heard; § 955.10 Prehearing briefs. (4) The possibility of agreement dis- Based on an examination of the docu- posing of all or any of the issues in dis- mentation described in § 955.5, the pute; and pleadings, and a determination of (5) Such other matters as may aid in whether the arguments and authorities the disposition of the appeal. addressed to the issues are adequately (b) The results of the conference shall set forth therein, the Board may, in its be reduced to writing by the Board and discretion, require the parties to sub- this writing shall thereafter constitute mit prehearing briefs in any case in part of the record. which a hearing has been elected pur- § 955.12 Submission without a hearing. suant to § 955.9. In the absence of a Board requirement therefor, either Submission of the case without hear- party may, in its discretion and upon ing does not relieve the parties from appropriate and sufficient notice to the the necessity of proving the facts supporting their allegations or defenses. other party, furnish a prehearing brief Affidavits, depositions, admissions, an- to the Board. In any case where a pre- swers to interrogatories, and stipula- hearing brief is submitted, it shall be tions may be employed to supplement furnished so as to be received by the other documentary evidence in the Board at least 15 days prior to the date record which will be settled pursuant set for hearing, and a copy shall be fur- to § 955.14. The Board may permit such nished simultaneously to the other submission to be supplemented by oral party. argument (transcribed if requested), EFFECTIVE DATE NOTE: At 76 FR 37660, June and by briefs in accordance with 28, 2011, § 955.10 was amended by revising the § 955.24. first sentence, effective July 28, 2011. For the convenience of the user, the revised text is § 955.13 Optional Small Claims (Expe- set forth as follows: dited) and Accelerated Procedures. (a) The Small Claims (Expedited) Proce- § 955.10 Prehearing briefs. dure. (1) The Expedited Procedure is Based on an examination of the docu- available solely at the election of the mentation described in § 955.5, the pleadings, appellant. Such election requires deci- and a determination of whether the argu- sion of the appeal, whenever possible, ments and authorities addressed to the issues are adequately set forth therein, the within 120 days after the Board re- Board may, in its discretion, require the par- ceives written notice of the appellant’s ties to submit prehearing briefs in any case election to utilize this procedure. in which a hearing has been ordered pursu- (2) The appellant may elect this pro- ant to § 955.9. * * * cedure when:

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(i) There is a monetary amount in dered, the Board will subsequently fur- dispute and that amount is $50,000 or nish the parties a printed copy of such less, or oral decision for the record and pay- (ii) There is a monetary amount in ment purposes and for the establish- dispute and that amount is $150,000 or ment of the commencement date of the less and the appellant is a small busi- period for filing a motion for reconsid- ness concern (as that term is defined in eration under § 955.30. the Small Business Act and regulations (6) Decisions of the Board under the promulgated under the Act). Expedited Procedure will not be pub- (3) In cases proceeding under the Ex- lished, will have no value as prece- pedited Procedure, the respondent shall dents, and in the absence of fraud, can- send the Board a copy of the contract, not be appealed. the contracting officer’s final decision, (b) The Accelerated Procedure. (1) The and the appellant’s claim letter or let- Accelerated Procedure is available ters, if any, within ten days from the respondent’s first receipt from either solely at the election of the appellant the appellant or the Board of a copy of and shall apply only to appeals where the appellant’s notice of election of the there is a monetary amount in dispute Expedited Procedure. If either party re- and the amount in dispute is $100,000 or quests an oral hearing in accordance less. Such election requires decision of with § 955.9, the Board shall promptly the appeal, whenever possible, within schedule such a hearing for a mutually 180 days after the Board receives writ- convenient time consistent with ad- ten notice of the appellant’s election to ministrative due process and the 120- utilize this procedure. day limit for a decision, at a place de- (2) Promptly after receipt of the ap- termined under § 955.18. If a hearing is pellant’s election of the Accelerated not requested by either party, the ap- Procedure, the Board shall establish a peal shall be deemed to have been sub- schedule of proceedings that will allow mitted under § 955.12 without a hearing. for the timely resolution of the appeal. (4) Promptly after receipt of the ap- The Board, in its discretion, may pellant’s election of the Expedited Pro- shorten time periods prescribed else- cedure, the Board shall establish a where in these Rules as necessary to schedule of proceedings that will allow enable the Board to decide the appeal for the timely resolution of the appeal. within 180 days after the Board has re- Pleadings, discovery, and other pre- ceived the appellant’s notice of elec- hearing activities may be restricted or tion of the Accelerated Procedure. eliminated at the Board’s discretion as (3) Written decisions by the Board in necessary to enable the Board to decide cases processed under the Accelerated the appeal within 120 days after the Procedure will normally be short and Board has received the appellant’s no- contain only summary findings of fact tice of election of the Expedited Proce- and conclusions. Decisions will be ren- dure. In so doing, the Board may reserve whatever time it considers nec- dered for the Board by a single Judge essary for preparation of the decision. with the concurrence of the Chairman (5) Written decisions by the Board in or Vice Chairman or other designated cases processed under the Expedited Judge, or by a majority among these Procedure will be short and contain two and an additional designated mem- only summary findings of fact and con- ber in case of disagreement. In cases clusions. Decisions will be rendered for where the amount in dispute is $50,000 the Board by a single Judge. If there or less and in which there has been a has been a hearing, the Judge presiding hearing, the single Judge presiding at at the hearing may, in his or her dis- the hearing may, with the concurrence cretion, at the conclusion of the hear- of both parties, convert the appeal to ing and after entertaining such oral ar- an Expedited Proceeding and at the guments as he or she deems appro- conclusion of the hearing, after enter- priate, render on the record oral sum- taining such oral arguments as he or mary findings of fact, conclusions of she deems appropriate, render on the law, and a decision of the appeal. record oral summary findings of fact, Whenever such an oral decision is ren- conclusions of law, and a decision of

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the appeal. Whenever such an oral deci- other party, to submit additional evision is rendered, the Board will subse- dence on any matter relevant to the quently furnish the parties a printed appeal. copy of such oral decision for record (d) The Board may consider the Fed- and payment purposes and to establish eral Rules of Evidence for guidance re- the date of commencement of the pe- garding admissibility of evidence and riod for filing a motion for reconsider- other evidentiary issues in construing ation under § 955.30. those Board rules that are similar to (c) Denial of election. At the request Federal Rules and for matters not spe- of the respondent, or on its own initia- cifically covered herein. tive, the Board may determine whether the amount in dispute and/or the appel- § 955.15 Discovery. lant’s status make the election of the (a) The parties are encouraged to en- Expedited Procedure or the Acceler- gage in voluntary discovery proce- ated Procedure inappropriate. dures. In connection with any deposi- (d) Motions for Reconsideration in tion or other discovery procedure, the Cases Arising Under § 955.13. Motions for reconsideration of cases decided under Board may issue any order which jus- either the Expedited Procedure or the tice requires to protect a party or per- Accelerated Procedure need not be de- son from annoyance, embarrassment, cided within the time periods pre- oppression, or undue burden or ex- scribed by this § 955.13 for the initial pense, and those orders may include decision of the appeal, but all such mo- limitations on the scope, method, time tions shall be processed and decided and place for discovery, and provisions rapidly so as to fulfill the intent of this for protecting the secrecy of confiden- section. tial information or documents. (e) General rule. Except as herein (b)(1) The Board may limit the fre- modified, the rules of this Part 955 oth- quency or extent of use of discovery erwise apply in all aspects. methods described in these rules. In doing so, generally the Board will con- § 955.14 Settling the record. sider whether: (a) The record upon which the (i) The discovery sought is unreason- Board’s decision will be rendered con- ably cumulative or duplicative, or is sists of the appeal file described in obtainable from some other source that § 955.5, and to the extent the following is more convenient, less burdensome, items have been filed, pleadings, pre- or less expensive; hearing conference memoranda or or- (ii) The party seeking discovery has ders, prehearing briefs, depositions or had ample opportunity by discovery in interrogatories received in evidence, the case to obtain the information admissions, stipulations, transcripts of sought; or conferences and hearings, hearing ex- (iii) The discovery is unduly burden- hibits, posthearing briefs, and docu- some and expensive, taking into ac- ments which the Board has specifically count the needs of the case, the designated be made a part of the amount in controversy, limitations on record. The record will at all reason- the parties’ resources, and the impor- able times be available for inspection tance of the issues at stake. by the parties at the Board. (2) The parties are required to make (b) Except as the Board may other- a good faith effort to resolve objections wise order in its discretion, no proof to discovery requests informally. A shall be received in evidence after com- party receiving an objection to a dis- pletion of an oral hearing or, in cases covery request, or a party which be- submitted on the record, after notifica- lieves that another party’s response to tion by the Board that the case is a discovery request is incomplete or ready for decision. entirely absent, may file a motion to (c) The weight to be attached to any compel a response, but such a motion evidence of record will rest within the must include a representation that the sound discretion of the Board. The moving party has tried in good faith, Board may in any case require either prior to filing the motion, to resolve party, with appropriate notice to the the matter informally. The motion to

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compel shall include a copy of each disagree to, or the Board may, upon appli- covery request at issue and the re- cation of either party and for good sponse, if any. cause shown, order the taking of testi- (c) If a party fails to appear for a dep- mony of any person by deposition upon osition, after being served with a prop- oral examination or written interrog- er notice, or fails to serve answers or atories before any officer authorized to objections to interrogatories, requests administer oaths at the place of exam- for admission of facts, or requests for ination, for use as evidence or for pur- the production or inspection of docu- pose of discovery. The application for ments, after proper service, the party order shall specify whether the purpose seeking discovery may request that the of the deposition is discovery or for use Board impose appropriate rulings or as evidence. sanctions. (b) Orders on depositions. The time, § 955.16 Interrogatories to parties, ad- place, and manner of taking deposi- mission of facts, and production tions shall be as mutually agreed by and inspection of documents. the parties or, failing such agreement, (a) Interrogatories to parties. After an governed by order of the Board. appeal has been filed with the Board, a (c) Use as evidence. No testimony party may serve on the other party taken by deposition shall be considered written interrogatories to be answered as part of the evidence in the hearing separately in writing, signed under of an appeal unless and until such tes- oath and returned within 30 days. Upon timony is offered and received in evi- timely objection, the Board will deter- dence at or before such hearing. It will mine the extent to which the interrog- not ordinarily be received in evidence atories will be permitted. The scope if the deponent is available to testify and use of interrogatories will be con- at the hearing, but the Board may trolled by § 955.15. admit testimony taken by deposition (b) Admission of facts. After an appeal in its discretion. A deposition may be has been filed with the Board, a party used to contradict or impeach the tes- may serve upon the other party a re- timony of the witness given at the quest for the admission of specified hearing. In cases submitted on the facts. Within 30 days after service, the party served shall answer each re- record, the Board may, in its discre- quested fact or file objections thereto. tion, receive depositions as evidence in The factual propositions set out in the supplementation of that record. request may be ordered by the Board as (d) Expenses. Each party shall bear its deemed admitted upon the failure of a own expenses associated with the tak- party to respond timely and fully to ing of any deposition. the request for admissions. (c) Production and inspection of docu- § 955.18 Hearings—where and when ments. After an appeal has been filed held. with the Board, a party may serve on If there is to be a hearing, it will be the other party written requests for held at a time and place prescribed by the production, inspection, and copying the Board after consultation with the of any documents, electronically party or parties electing the hearing. stored information, or things, to be an- At the discretion of the Board, hear- swered within 30 days. Upon timely ob- ings may be held in the Board’s hearing jection, the Board will determine the room in Arlington, Virginia or may be extent to which the requests must be held at another location with due con- satisfied, and if the parties cannot sideration to the just, informal, expedi- themselves agree thereon, the Board tious and inexpensive resolution of shall specify just terms and conditions each case. of compliance. EFFECTIVE DATE NOTE: At 76 FR 37660, June § 955.17 Depositions. 28, 2011, § 955.18 was amended by revising the (a) When depositions permitted. After first sentence, effective July 28, 2011. For the an appeal has been docketed and com- convenience of the user, the revised text is plaint filed, the parties may mutually set forth as follows:

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§ 955.18 Hearings—where and when held. testimony of a witness is not given If there is to be a hearing, it will be held under oath or affirmation, the Board at a time and place prescribed by the Board may warn the witness that his or her after consultation with the parties. * * * statements may be subject to the provisions of 18 U.S.C. 287 and 1001, and § 955.19 Notice of hearings. any other provisions of law imposing The Board shall issue an order rea- penalties for knowingly making false sonably in advance of the hearing iden- representations in connection with tifying the time and place thereof. claims against the United States or in any matter within the jurisdiction of § 955.20 Unexcused absence of a party. any department or agency thereof. The unexcused absence of a party at Upon the request of either party, or if the time and place set for hearing will the Board deems it advisable, the not be occasion for delay. In the event Board may exclude witnesses from the of such absence, the hearing will pro- hearing room. The Board will not exceed and the case will be regarded as clude a party who is an individual, the submitted by the absent party as pro- properly designated representative of a vided in § 955.12. party which is an entity, a person whose presence is essential to the pres- § 955.21 Nature of hearings. entation of a party’s case, or a person Hearings shall be as informal as may required by statute to be present. be reasonable and appropriate under the circumstances. The Board may ex- § 955.23 Copies of papers, withdrawal clude evidence to avoid unfair preju- of exhibits. dice, confusion of the issues, undue (a) When books, records, papers, or delay, waste of time, or presentation of documents have been received in evi- irrelevant, immaterial or cumulative dence, a true copy thereof or of such evidence. Although the Board will con- part thereof as may be material or rel- sider the Federal Rules of Evidence as evant may be substituted therefor, dur- described in § 955.14(d), letters or copies ing the hearing or at the conclusion thereof, affidavits, or other evidence thereof. not ordinarily admissible under the (b) After a decision has become final, Federal Rules, may be admitted in the upon request and after notice to the discretion of the Board. The weight to other party, the Board in its discretion be attached to evidence presented in may permit the withdrawal of original any particular form will be within the exhibits, or any part thereof, by the discretion of the Board, taking into party entitled thereto. The substi- consideration all the circumstances of tution of true copies of exhibits or any the particular case. Stipulations of fact part thereof may be required by the agreed upon by the parties may be ac- Board in its discretion as a condition of cepted as evidence at the hearing. The granting permission for such with- parties may stipulate the testimony drawal. that would be given by a witness if the witness were present. The Board may § 955.24 Posthearing briefs. in any case require evidence in addition to that offered by the parties. A Posthearing briefs may be submitted party requiring the use of a foreign upon such terms as may be ordered by language interpreter allowing testi- the Board at the conclusion of the mony to be taken in English for itself hearing. Ordinarily, they will be simul- or witnesses it proffers is responsible taneous briefs, submitted to the Board for making all necessary arrangements on a date established by the Board, fol- and paying all costs and expenses asso- lowing receipt of transcripts. ciated with the use of an interpreter. § 955.25 Transcript of proceedings. § 955.22 Examination of witnesses. Testimony and argument at hearings Witnesses before the Board will be shall be reported verbatim, unless the examined orally under oath or affirma- Board otherwise orders. Transcripts of tion, unless the facts are stipulated, or the proceedings will be provided to the the Board shall otherwise order. If the parties by the Board.

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§ 955.26 Representation of the parties. § 955.28 Suspension. (a) The term appellant means a party (a) Whenever at any time it appears that has filed an appeal for resolution that the parties are in agreement as to by the Board. An individual appellant disposition of the controversy, the may appear before the Board in his or Board may suspend further processing her own behalf, a corporation may ap- of the appeal: Provided, however, That if pear before the Board by an officer the Board is advised thereafter by ei- thereof, a partnership or joint venture ther party that the controversy has not may appear before the Board by a been disposed of by agreement, the case member thereof, or any of these may shall be restored to the Board’s active appear before the Board by an attorney docket. at law duly licensed in any state, com- (b) The Board may in its discretion monwealth, territory of the United suspend proceedings to permit a con- States, or in the District of Columbia. tracting officer to issue a decision An attorney representing an appellant when an appeal has been taken from shall file a written notice of appear- the contracting officer’s failure to ance with the Board, including his or render a timely decision, or for other her address, telephone number, fax good cause. number, and jurisdiction in which the attorney is licensed to practice law. § 955.29 Decisions. (b) The term respondent means the Decisions of the Board will be made U.S. Postal Service. Postal Service in writing and sent simultaneously to counsel, who shall be an attorney at both parties. The rules of the Board law licensed to practice in a state, and all final orders and decisions shall commonwealth, or territory of the be open for public inspection at the of- United States, or in the District of Co- fices of the Board, and may be made lumbia, designated by the General available on its official Web site and to Counsel, will represent the interest of commercial publishers. Decisions of the Postal Service before the Board. the Board will be made solely upon the Postal Service counsel shall file a writ- record, as described in § 955.14. ten notice of appearance with the Board, including his or her address, § 955.30 Motion for reconsideration. telephone number, fax number, and ju- A motion for reconsideration, if filed risdiction in which the attorney is li- by either party, shall set forth specifi- censed to practice law. cally the ground or grounds relied upon (c) References to contractor, appel- to sustain the motion, and shall be lant, contracting officer, respondent filed within 30 days from the date of and parties shall include respective the receipt of a copy of the decision of counsel for the parties, as soon as ap- the Board by the party filing the mo- propriate notices of appearance have tion. been filed with the Board. A self-represented party or an attorney rep- § 955.31 Dismissal without prejudice. resenting either party shall inform the In certain cases, appeals docketed be- Board promptly of any change in his or fore the Board are required to be placed her address, telephone number, or fax in a suspense status and the Board is number. unable to proceed with disposition thereof for reasons not within the con- § 955.27 Withdrawal of attorney. trol of the Board. In any such case Any attorney for either party who where the suspension has continued, or has filed a notice of appearance and it appears that it will continue, for an who wishes to withdraw from a case inordinate length of time, the Board must file a motion or notice which in- may, in its discretion, dismiss such ap- cludes the name, address, telephone peals from its docket without prejudice number, and fax number of the person to their restoration when the cause of who will assume responsibility for rep- suspension has been removed. Unless resentation of the party in question. either party or the Board acts within

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three years to reinstate any appeal dis- (1) Taking the facts pertaining to the missed without prejudice, the dismissal matter in dispute to be established for shall be deemed with prejudice. the purpose of the case; (2) Forbidding challenge of the accu- § 955.32 Dismissal for failure to prosecute. racy of any evidence; (3) Refusing to allow the disobedient Whenever a record discloses the fail- party to support or oppose designated ure of either party to file documents claims or defenses; required by these rules, respond to notices or correspondence from the (4) Prohibiting the disobedient party Board, comply with orders of the from introducing in evidence des- Board, or otherwise indicates an inten- ignated documents or testimony; tion not to continue the prosecution or (5) Striking pleadings or parts there- defense of an appeal, the Board may of, or staying further proceedings until issue an order requiring the offending the order is obeyed; party to show cause why the appeal (6) Dismissing or granting the case or should not be either dismissed or any part thereof; granted, as appropriate. If the offend- (7) Imposing such other sanctions as ing party shall fail to show such cause, the Board deems appropriate. the Board may take such action as it (c) In addition, the Board may sanc- deems reasonable and proper under the tion individual attorneys for a viola- circumstances. tion of any Board order or direction or standard of conduct applicable to such § 955.33 Ex parte communications. individual where the violation seri- No member of the Board or of the ously affects the integrity of the Board’s staff shall entertain, nor shall Board, its process, or its proceedings. any person directly or indirectly in- Sanctions may be public or private, volved in an appeal submit to the and may include admonishment, dis- Board or the Board’s staff, off the qualification from a particular matter, record, any evidence, explanation, analysis, or advice, whether written or disqualification from practice before oral, regarding any matter at issue in the Board in accordance with 39 CFR an appeal. This provision does not Part 951, referral to an appropriate li- apply to consultation among Board censing authority, or such other action members nor to ex parte communica- as circumstances may warrant. tions concerning the Board’s administrative functions or procedures. § 955.35 Subpoenas. (a) General. Upon written request of § 955.34 Sanctions. either party filed with the Recorder, or (a) All parties and their attorneys on the Board’s own initiative, the must obey directions and orders pre- Board may issue a subpoena requiring: scribed by the Board and adhere to (1) Testimony at a deposition. The de- standards of conduct applicable to such posing of a witness in the city or coun- parties and attorneys. As to an attor- ty where the witness resides or is em- ney, the standards include the rules of ployed or transacts business in person, professional conduct and ethics of the or at another convenient location as jurisdictions in which that attorney is determined by the Board; licensed to practice, to the extent that (2) Testimony at a hearing. The attend- those rules are relevant to conduct affecting the integrity of the Board, its ance of a witness for the purpose of process, or its proceedings. taking testimony at a hearing; or (b) If any party or its attorney fails (3) Production of books and papers. The to comply with any direction or order production by a witness of books, pa- issued by the Board, or engages in mis- pers, documents, electronically stored conduct affecting the Board, its proc- information, and other tangible and in- ess, or its proceedings, the Board may tangible things designated in the sub- issue such orders as are just, including poena. the imposition of appropriate sanc- (b) Voluntary cooperation. Each party tions. Sanctions may include: is expected:

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(1) To cooperate and make available issuing a subpoena to a requesting witnesses and evidence under its con- party, the Judge shall sign the sub- trol as requested by the other party, poena and may enter the name of the without issuance of a subpoena; and witness and otherwise leave it blank. (2) To secure voluntary attendance of The party to whom the subpoena is desired third-party witnesses, books, issued shall complete the subpoena be- papers, documents, or tangible things fore service. whenever possible. (2) Where the witness is located in a (c) Requests for subpoenas. (1) A re- foreign country, a letter rogatory or quest for a subpoena shall normally be subpoena may be issued and served filed at least: under the circumstances and in the (i) 15 days before a scheduled deposi- manner provided in 28 U.S.C. 1781–1784. tion where the attendance of a witness (f) Service. (1) The party requesting at a deposition is sought, and/or where issuance of a subpoena shall arrange the production by a witness of books, for service. papers, documents, electronically (2) A subpoena may be served by a stored information, and other tangible United States marshal or deputy mar- and intangible things is sought; and shal, or by any other person who is not (ii) 30 days before a scheduled hearing a party and not less than 18 years of where the attendance of a witness at a age. Service of a subpoena upon a per- hearing is sought; except that son named therein shall be made by (iii) In its discretion the Board may personally delivering a copy to that honor requests for subpoenas not made person and tendering the fees for one within these time limitations. day’s attendance and the mileage pro- (2) A request for a subpoena shall vided by 28 U.S.C. 1821 or other applica- state the reasonable scope and general ble law. relevance to the case of the testimony (3) The party at whose instance a and of any books, papers, documents, subpoena is issued shall be responsible electronically stored information, and for the payment of fees and mileage of other tangible and intangible things the witness and of the officer who sought. serves the subpoena. The failure to (d)(1) Requests to quash or modify. make payment of such charges on de- Upon written request by the person mand may be deemed by the Board as subpoenaed or by a party, made within a sufficient ground for striking the tes- 10 days after service but in any event timony of the witness and the evidence not later than the time specified in the the witness has produced. subpoena for compliance, the Board (g) Contumacy or refusal to obey a sub- may: poena. In case of contumacy or refusal (i) Quash or modify the subpoena if it to obey a subpoena by a person who re- is unreasonable and oppressive or for sides, is found, or transacts business other good cause shown; or within the jurisdiction of a U.S. Dis- (ii) Require the person in whose be- trict Court, the Board will apply to the half the subpoena was issued to ad- Court through the Attorney General of vance the reasonable cost of compli- the United States for an order requir- ance. ing the person to appear before the (2) Where circumstances require, the Board or a member thereof to give tes- Board may act upon such a request at timony or produce evidence or both. any time after a copy has been served Any failure of any such person to obey upon the opposing party. the order of the Court may be punished (e) Form; issuance. (1) Every subpoena by the Court as a contempt thereof. shall state the name of the Board and the title of the appeal and shall com- § 955.36 Effective dates and applica- mand each person to whom it is di- bility. rected to attend and give testimony, and where appropriate, to produce These revised rules govern pro- specified books, papers, documents, ceedings in all cases docketed by the electronically stored information, and Board on or after June 1, 2009. other tangible and intangible things at a time and place therein specified. In PART 956 [RESERVED] 295

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PART 957—RULES OF PRACTICE IN of the Postal Service Purchasing Man- PROCEEDINGS RELATIVE TO DE- ual. BARMENT AND SUSPENSION [36 FR 11574, June 16, 1971, as amended at 41 FROM CONTRACTING FR 19309, May 12, 1976; 63 FR 66051, Dec. 1, 1998; 67 FR 62179, Oct. 4, 2002]

Sec. § 957.3 Definitions. 957.1 Authority for rules. 957.2 Scope of rules. (a) the term Vice President means a 957.3 Definitions. Vice President with purchasing author- 957.4 Initiation of debarment proceedings. ity in the Postal Service or the Vice 957.5 The request for a hearing. President’s representative for the pur- 957.6 Order relative to hearing. pose of carrying out the provisions of 957.7 Reply. chapter 3, section 7 of the Postal Serv- 957.8 Service and filing documents for the ice Purchasing Manual. record. (b) The term General Counsel includes 957.9 Respondent’s failure to appear at the the General Counsel’s authorized rep- hearing. resentative. 957.10 Respondent already debarred by an- (c) The term Judicial Officer includes other Government agency. the Acting Judicial Officer. 957.11 Amendment of pleadings. (d) Debarment means, in general, an 957.12 Continuances and extensions. exclusion from Government con- 957.13 Hearings. tracting and subcontracting for a rea- 957.14 Appearances. sonable, specified period of time com- 957.15 Conduct of the hearing. mensurate with the seriousness of the 957.16 Evidence. offense or failure, or the inadequacy of 957.17 Witness fees. performance. 957.18 Depositions. (e) Suspension means a disqualifica- 957.19 Transcript. tion from Government contracting and 957.20 Proposed findings and conclusions. subcontracting for a temporary period 957.21 Decision. of time because a concern or individual 957.22 Motion for reconsideration. is suspected upon adequate evidence of 957.23 Modification or revocation of orders. engaging in criminal, fraudulent, or se- 957.24 Computation of time. riously improper conduct. 957.25 Official record. 957.26 Public information. (f) Respondent means any individual, 957.27 Suspension. firm or other entity which has been 957.28 Ex parte communications. served a written notice of proposed debarment pursuant to chapter 3, section AUTHORITY: 39 U.S.C. 204, 401. 7 of the Postal Service Purchasing SOURCE: 36 FR 11574, June 16, 1971, unless Manual. otherwise noted. (g) The Recorder means the Recorder of the United States Postal Service, § 957.1 Authority for rules. 2101 Wilson Boulevard, Suite 600, Ar- The rules in this part are issued by lington, VA 22201–3078. the Judicial Officer of the Postal Serv- [36 FR 11574, June 16, 1971, as amended at 38 ice pursuant to authority delegated by FR 17217, June 29, 1973; 41 FR 19309, May 12, the Postmaster General (39 U.S.C. secs. 1976; 63 FR 66051, Dec. 1, 1998] 204, 401; chapter 3, section 7 of the Post- § 957.4 Initiation of debarment pro- al Service Purchasing Manual). ceedings. [36 FR 11574, June 16, 1971, as amended at 41 (a) A Vice President shall initiate a FR 19309, May 12, 1976; 63 FR 66051, Dec. 1, debarment proceeding by serving upon 1998] the proposed Respondent a written notice of proposed debarment in the man- § 957.2 Scope of rules. ner hereinafter (§ 957.8(d)) provided for The rules in this part shall be appli- the service of all other papers. cable in all formal proceedings before (b) The notice shall state: the Postal Service pertaining to hear- (1) That debarment is being consid- ings initiated under chapter 3, section 7 ered;

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(2) The reasons for the proposed de- debarment and stating the relief debarment; sired. (3) The period of debarment and the [36 FR 11574, June 16, 1971, as amended at 63 proposed effective date thereof; FR 66051, Dec. 1, 1998] (4) That the debarment will not become effective until after a hearing if § 957.6 Order relative to hearing. such hearing is requested within 20 (a) The Judicial Officer shall issue an days following the receipt of the no- order granting the Respondent’s re- tice; and quest for a hearing, establishing the (5) That the request for a hearing is time and place thereof and advising the to be submitted in the manner pre- Respondent of the consequences of a scribed by the rules in this part, a copy failure to appear at the hearing (see of which shall be enclosed with the no- § 957.9). Whenever practicable, the hear- tice. ing date shall be within 30 days of the (c) If no hearing is requested within date of the Judicial Officer’s order rel- 20 days following the receipt of the no- ative to hearing. tice, the action of the Vice President (b) The notice of proposed debarment set forth in the notice shall become the and the request for a hearing together with the reply, if any, shall become the final agency determination without pleadings in any proceeding in which further notice to the Respondent. the Judicial Officer orders a hearing to (d) The party against which a final be held. agency determination has been entered pursuant to paragraph (c) of this sec- § 957.7 Reply. tion shall, however, at any time have Not more than 15 days from the serv- the privilege of reopening a case for ice of the request for a hearing, the the limited purpose of contesting the General Counsel may submit a reply on issue of service. Such party’s conten- behalf of the Vice President who initi- tions on that issue shall be addressed ated the debarment proceeding. to the Judicial Officer in the same manner as a request for a hearing (see [36 FR 11574, June 16, 1971, as amended at 63 FR 66051, Dec. 1, 1998] § 957.5). The Judicial Officer may require such additional showings or proof § 957.8 Service and filing documents as the Judicial Officer may deem nec- for the record. essary on the issue of service and shall (a) Each party shall file with the Re- reopen any debarment proceeding pre- corder pleadings, motions, orders and viously closed pursuant to paragraph other documents for the record. The (c) of this section if the Judicial Officer Recorder shall cause copies to be shall find that service was incomplete served promptly on other parties to the or otherwise failed to adequately ad- proceeding and on the Judicial Officer. vise of the pendency of the proposed de- (b) The parties shall submit four cop- barment. ies of all documents unless otherwise ordered by the Judicial Officer. One [36 FR 11574, June 16, 1971, as amended at 63 FR 66051, Dec. 1, 1998] copy shall be signed as the original. (c) Documents shall be dated and § 957.5 The request for a hearing. shall state the docket number and title of the proceeding. Any pleading or A respondent may, within 20 days fol- other document required by order of lowing the receipt of a written notice the Judicial Officer to be filed by a of proposed debarment, file a request specified date shall be served upon the for a hearing before the Judicial Offi- Recorder on or before such date. The cer. The request shall be addressed to date of such service shall be the filing the presiding officer through the Vice date and shall be entered thereon by President who initiated the debarment the Recorder. proceeding and shall be accompanied (d) Service of all papers shall be ef- by a concise statement admitting, de- fected by mailing the same, postage nying or explaining each of the allega- prepaid registered, or certified mail, tions set forth in the notice of proposed return receipt requested, or by causing

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said notice to be personally served on notice of proposed debarment shall the proposed Respondent by an author- contain a statement so stating in suffi- ized representative of the Vice Presi- cient detail to apprise the Respondent dent. In the case of personal service the of the extent of such reliance. person making service shall secure (c) The Vice President’s reliance from the proposed Respondent or his or upon provisions of paragraph (a) of this her agent, a written acknowledgment section, stated in conformity with the of receipt of said notice, showing the directions set forth in paragraph (b) of date and time of such receipt. Said ac- this section does not deprive the Re- knowledgment (or the return receipt spondent of the right to request the Ju- where service is effectuated by mail) dicial Officer to grant a hearing pursu- shall be made a part of the record by ant to these rules, nor the Judicial Of- the Vice President initiating the debar- ficer the full discretion to grant or ment proceeding. The date of delivery, deny such request. as shown by the acknowledgment of personal service or the return receipt, [36 FR 11574, June 16, 1971, as amended at 63 shall be the date of service. FR 66051, Dec. 1, 1998] [36 FR 11574, June 16, 1971, as amended at 63 § 957.11 Amendment of pleadings. FR 66051, Dec. 1, 1998] (a) By consent of the parties a plead- § 957.9 Respondent’s failure to appear ing may be amended at any time. Also, at the hearing. a party may move to amend a pleading If the Respondent shall fail to appear at any time prior to the close of the at the hearing, the Judicial Officer hearing: Provided, That the proposed shall receive the Vice President’s evi- amendment is reasonably within the dence and render a Postal Service Deci- scope of the proceeding. sion without requirement of further (b) When issues not raised by the notice to the Respondent. pleadings but reasonably within the scope of the proceedings initiated by [36 FR 11574, June 16, 1971, as amended at 37 the notice of proposed debarment are FR 23422, Nov. 3, 1972; 63 FR 66051, Dec. 1, 1998] tried by express or implied consent of the parties, they shall be treated in all § 957.10 Respondent already debarred respects as if they had been raised in by another Government agency. the pleadings. Such amendments as (a) When a Vice President proposes to may be necessary to make the plead- debar a firm or individual already ings conform to the evidence and to debarred by another Government agen- raise such issues shall be allowed at cy for a term concurrent with such de- any time upon the motion of any barment, the debarment proceedings party. before the Postal Service may be based (c) If a party objects to the introduc- entirely upon the record of facts ob- tion of evidence at the hearing on the tained from such other agency or upon ground that it is not within the issues such facts and additional other facts. framed by the pleadings, but fails to In such cases the facts obtained from satisfy the Judicial Officer that an the other agency shall be considered as amendment of the pleadings would established, but the party to be prejudice him on the merits, the Judi- debarred shall have opportunity to cial Officer may allow the pleadings to present information to the Judicial Of- be amended and may grant a continu- ficer and to explain why the debarment ance to enable the objecting party to by the Postal Service should not be im- rebut the evidence presented. posed. (d) The Judicial Officer may, upon (b) Where the Vice President initi- reasonable notice and upon such terms ating the debarment proceeding relies: as are just, permit service of a supple- (1) Upon the provisions of paragraph mental pleading setting forth trans- (a) of this section, or actions, occurrences, or events which (2) Upon all or part of the record of have transpired since the date of the the proposed Respondent’s previous de- pleading sought to be supplemented barment by another Government agen- and which are relevant to any of the cy, in initiating such proceeding, the issues involved.

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§ 957.12 Continuances and extensions. fice who has been assigned to handle the case on its behalf. Continuances and extensions will not be granted by the Judicial Officer ex- [36 FR 11574, June 16, 1971, as amended at 63 cept for good cause shown. FR 66051, Dec. 1, 1998]

§ 957.13 Hearings. § 957.15 Conduct of the hearing. (a) Hearings are held at 2101 Wilson The Judicial Officer shall have au- Boulevard, Suite 600, Arlington, VA thority to: 22201–3078, or other locations des- (a) Administer oaths and affirma- ignated by the Judicial Officer. tions; (b) A party may, not later than 7 (b) Examine witnesses; days prior to the scheduled date of a (c) Rule upon offers of proof, admissi- hearing, file a request that such hear- bility of evidence, and matters of pro- ing be held at a place other than that cedure; designated in the Judicial Officer’s (d) Order any pleading amended upon motion of a party at any time prior to order relative to hearing. The party the close of the hearing; shall support his or her request with a (e) Maintain discipline and decorum statement outlining: and exclude from the hearing any per- (1) The evidence to be offered in such son acting in an indecorous manner; place; (f) Require the filing of briefs or (2) The names and addresses of the memoranda of law on any matter upon witnesses who will testify; which the Judicial Officer is required (3) The reasons why such evidence to rule; cannot be produced at Arlington, VA. (g) Order prehearing conferences for The Judicial Officer shall give consid- the purpose of the settlement or sim- eration to the convenience and neces- plification of issues by the parties; sity of the parties and the relevancy of (h) Order the proceeding reopened at the evidence to be offered. any time prior to his or her decision for the receipt of additional evidence; [36 FR 11574, June 16, 1971, as amended at 63 FR 66051, Dec. 1, 1998] (i) Render a final agency decision; (j) Take such other further action as § 957.14 Appearances. may be necessary to properly preside over the debarment proceeding and (a) A Respondent may appear and be render decision therein. heard in person or by attorney. (b) An attorney may practice before [36 FR 11574, June 16, 1971, as amended at 63 the Postal Service in accordance with FR 66051, Dec. 1, 1998] applicable rules issued by the Judicial § 957.16 Evidence. Officer (see part 951 of this chapter). (c) When a Respondent is represented (a) Except as otherwise provided in by an attorney, all pleadings and other the rules in this part, the rules of evi- papers subsequent to the notice of pro- dence governing civil proceedings in posed debarment shall be mailed to the matters not involving trial by jury in the courts of the United States shall attorney. govern. However, such rules may be re- (d) All counsel shall promptly file no- laxed to the extent that the Judicial tices of appearance. Changes of Re- Officer deems proper to insure a fair spondent’s counsel shall be recorded by hearing. notices from retiring and succeeding (b) Testimony shall be under oath or counsel and from the Respondent. affirmation and witnesses shall be sub- (e) After a request for a hearing has ject to cross-examination. been filed pursuant to the rules in this (c) Agreed statements of fact may be part, the Law Department shall rep- received in evidence. resent the Vice President in further (d) Official notice or knowledge may proceedings relative to the hearing and be taken of the types of matters of shall in its notice of appearance iden- which judicial notice or knowledge tify the individual member of such of- may be taken.

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(e) The written statement of a com- to shall be taken subject to the objec- petent witness may be received in evi- tions. In lieu of participating in the dence: Provided, That such statement is oral examination, a party may trans- relevant to the issues, that the witness mit written interrogatories to the offi- shall testify under oath at the hearing cer, who shall propound them to the that the statement is in all respects witness and record the answers ver- true, and, in the case of expert wit- batim. Objections to relevancy or ma- nesses, that the statement correctly teriality of testimony, or to errors and states his or her opinion or knowledge irregularities occurring at the oral ex- concerning the matters in question. amination in the manner of taking the [36 FR 11574, June 16, 1971, as amended at 63 deposition, in the form of the questions FR 66051, Dec. 1, 1998] or answers, in the oath or affirmation, or in the conduct of the parties and er- § 957.17 Witness fees. rors of any kind which might be obvi- The Postal Service does not pay fees ated, cured or removed if promptly pre- and expenses for Respondent’s wit- sented, are waived unless timely objec- nesses or for depositions requested by tion is made at the taking of the depo- Respondent. sition. (d) At the hearing any part or all of § 957.18 Depositions. the deposition may be offered in evi- (a) Not later than 7 days prior to the dence by any party who was present or scheduled date of the hearing any represented at the taking of the deposi- party may file application with the Re- tion or who had notice thereof. If the corder for the taking of testimony by deposition is not offered and received deposition. In support of such applica- in evidence, it shall not be considered tion the applicant shall submit under as a part of the record in the pro- oath or affirmation a statement set- ceeding. The admissibility of depositing out the reasons why such testi- tions or parts thereof shall be governed mony should be taken by deposition, by the rules of evidence. the time and the place, and the name (e) The party requesting the deposi- and address of the witness whose depo- tion shall pay all fees required to be sition is desired, the subject matter of paid to witnesses and the deposition of- the testimony of each witness, its rel- ficer, and shall provide an original and evancy, and the name and address of one copy of the deposition for the offi- the person before whom the deposition cial record, and shall serve one copy is to be taken. upon the opposing party. (b) If the application be granted, the order for the taking of the deposition (f) Within the United States or with- will specify the time and place thereof, in a territory or insular possession, the name of the witness, the person be- subject to the dominion of the United fore whom the deposition is to be taken States, depositions may be taken be- and any other necessary information. fore an officer authorized to administer (c) Each witness testifying upon dep- oaths by the laws of the United States osition shall be duly sworn, and the ad- or of the place where the examination verse party shall have the right to is held; within a foreign country, depo- cross-examine. The questions and an- sitions may be taken before a secretary swers together with all objections, of an embassy or legation, consul gen- shall be reduced to writing and, unless eral, vice consul or consular agent of waived by stipulation of the parties, the United States, or any other person shall be read to and subscribed by the designated in the order for the taking witness in the presence of the deposi- of a deposition. tion officer who shall certify it in the (g) Depositions may also be taken usual form. The deposition officer shall and submitted on written interrog- file the testimony taken by deposition atories in substantially the same man- as directed in the order. The deposition ner as depositions taken by oral exam- officer shall put the witness on oath. ination. When a deposition is taken All objections made at the time of ex- upon written interrogatories and cross- amination shall be noted by the deposi- interrogatories, none of the parties tion officer and the evidence objected shall be present or represented, and no

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person, other than the witness, a steno- ment of the parties shall be subject to graphic reporter, and the officer shall objection and exception. be present at the examination of the [36 FR 11574, June 16, 1971, as amended at 63 witness, which fact shall be certified by FR 66051, Dec. 1, 1998] the officer, who shall propound the interrogatories and cross-interrogatories § 957.20 Proposed findings and conclu- to the witness in their order and reduce sions. the testimony to writing in the wit- (a) Each party to a proceeding, ex- ness’ own words. cept one who fails to appear at the [36 FR 11574, June 16, 1971, as amended at 63 hearing may, unless at the discretion FR 66051, Dec. 1, 1998] of the Judicial Officer such is not appropriate, submit proposed findings of § 957.19 Transcript. fact, conclusions of law and supporting (a) Hearings shall be stenographi- reasons either in oral or written form in the discretion of the Judicial Offi- cally reported by a contract reporter of cer. The Judicial Officer may also re- the Postal Service under the super- quire parties to any proceeding to sub- vision of the Judicial Officer. Argu- mit proposed findings of fact and con- ment upon any matter may be excluded clusions of law with supporting rea- from the transcript by order of the Ju- sons. Unless given orally the date set dicial Officer. A copy of the transcript for filing of proposed findings of fact shall be a part of the record and the and conclusions of law shall be within sole official transcript of the pro- 15 days after the delivery of the official ceeding. Copies of the transcript may transcript to the Recorder who shall be obtained by the Respondent from notify both parties of the date of its re- the reporter upon the payment of a ceipt. The filing date for proposed find- reasonable price therefor. Copies of ings shall be the same for both parties. parts of the official record other than If not submitted by such date, or un- the transcript may be obtained from less extension of time for the filing the librarian of the Postal Service or thereof is granted, they will not be in- the Recorder. cluded in the record or given consider- (b) Changes in the official transcript ation. may be made only when they involve (b) Except when presented orally be- errors affecting substance and then fore the close of the hearing, proposed only in the manner herein provided. No findings of fact shall be set forth in se- physical changes shall be made in or rially numbered paragraphs and shall upon the official transcript, or copies state with particularity all evidentiary thereof, which have been filed with the facts in the record with appropriate ci- record. Within 10 days after the receipt tations to the transcript or exhibits by any party of a copy of the official supporting the proposed findings. Each transcript, or any part thereof, the proposed conclusion shall be separately party may file a motion requesting cor- stated. rection of the transcript. Opposing counsel shall, within such time as may [36 FR 11574, June 16, 1971, as amended at 63 be specified by the Judicial Officer, no- FR 66051, Dec. 1, 1998] tify the Judicial Officer in writing of his or her concurrence or disagreement § 957.21 Decision. with the requested corrections. Failure The Judicial Officer shall issue a to interpose timely objection to a pro- final agency decision. Such decision posed correction shall be considered to shall include findings and conclusions, be concurrence. Thereafter, the Judi- with the reasons therefor, upon all the cial Officer shall by order specify the material issues of fact or law presented corrections to be made in the tran- on the record, and the appropriate script. The Judicial Officer on his or order. her own initiative may order corrections to be made in the transcript with § 957.22 Motion for reconsideration. prompt notice to the parties of the pro- Within 10 days from the date thereof, ceeding. Any changes ordered by the or such longer period as may be fixed Judicial Officer other than the agree- by the Judicial Officer, either party

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may file a motion for reconsideration ulations, may appeal to the Judicial of the final agency decision. Each mo- Officer for a review of the suspension. tion for reconsideration shall be ac- (b) Any such appeal shall be ad- companied by a brief clearly setting dressed to the Judicial Officer through forth the points of fact and of law re- the Vice President who ordered the lied upon in support of said motion. suspension within 20 days of the date upon which the respondent has been § 957.23 Modification or revocation of notified of the suspension. Such appeal orders. shall concisely and in the manner of a A party against whom an order of de- pleading set forth the grounds upon barment has been issued may file an which the suspension is contested and application for modification or revoca- may be supported by a brief and such tion thereof. The Recorder shall trans- evidence as the respondent may desire mit a copy of the application to the to submit. General Counsel, who shall file a writ- (c) Should the respondent desire oral ten reply. A copy of the reply shall be argument or a hearing before the Judi- sent to the applicant by the Recorder. cial Officer in connection with the ap- Thereafter an order granting or deny- peal, application therefor shall be in- ing such application will be issued by cluded in the appeal. In the event that the Judicial Officer. the Judicial Officer grants the respondent’s application for a hearing the no- [36 FR 11574, June 16, 1971, as amended at 63 tice of suspension and the appeal shall FR 66051, Dec. 1, 1998] constitute the pleadings defining the issues therein and the hearing shall be § 957.24 Computation of time. regulated in accordance with the rules A designated period of time under the in this part concerning debarment pro- rules in this part excludes the day the ceedings. period begins, and includes the last day (d) The decision of the Judicial Offi- of the period unless the last day is a cer in any appeal shall constitute the Saturday, Sunday, or legal holiday, in final agency determination of the which event the period runs until the issues presented thereby. Either party close of business on the next business thereto may, however, file a motion for day. reconsideration thereof, in accordance with the provisions of § 957.22. § 957.25 Official record. [36 FR 11574, June 16, 1971, as amended at 41 The transcript of testimony together FR 19309, May 12, 1976; 63 FR 66051, Dec. 1, with all pleadings, orders, exhibits, 1998] briefs, and other documents filed in the proceeding shall constitute the official § 957.28 Ex parte communications. record of the proceeding. The provisions of 5 U.S.C. 551(14), 556(d) and 557(d) prohibiting ex parte § 957.26 Public information. communications are made applicable The Librarian of the Postal Service to proceedings under these rules of shall maintain for public inspection in practice. the Library copies of all final deci- [42 FR 5358, Jan. 28, 1977] sions. The Recorder maintains the complete official record of every proceeding. PART 958—RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO [36 FR 11574, June 16, 1971, as amended at 63 CIVIL PENALTIES, CLEAN-UP FR 66051, Dec. 1, 1998] COSTS AND DAMAGES FOR VIO- § 957.27 Suspension. LATION OF HAZARDOUS MATE- RIAL REGULATIONS (a) Any firm or individual suspended under chapter 3, section 7 of the Postal Sec. Service Purchasing Manual who be- 958.1 Purpose. lieves that the suspension has not been 958.2 Definitions. in accordance with the provisions 958.3 Petition for hearing. thereof, or with applicable laws or reg- 958.4 Referral of complaint.

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958.5 Scope of hearing; evidentiary stand- (g) Presiding Officer refers to an Ad- ard. ministrative Law Judge designated by 958.6 Notice of docketing and hearing. the Judicial Officer to conduct a hear- 958.7 Hearing location. 958.8 Rights of parties. ing. 958.9 Responsibilities and authority of pre- (h) Recorder refers to the Recorder of siding officer. the Judicial Office of the United States 958.10 Prehearing conferences. Postal Service, 2101 Wilson Boulevard, 958.11 Respondent access to information. 958.12 Depositions; interrogatories; admis- Suite 600, Arlington, Virginia 22201– sion of facts; production and inspection 3078. of documents. (i) Representative refers to an attor- 958.13 Sanctions. ney or other advocate. 958.14 Ex parte communications. (j) Respondent refers to any person 958.15 Post-hearing briefs. 958.16 Transcript of proceedings. determined by the Determining Official 958.17 Initial decision. to be liable for civil penalties, clean-up 958.18 Appeal of initial decision to Judicial costs and/or damages for mailing haz- Officer. ardous materials and/or related viola- 958.19 Form and filing of documents. tions under 39 U.S.C. 3018. 958.20 Service of notice of docketing and hearing, other documents. 958.21 Computation of time. § 958.3 Petition for hearing. 958.22 Continuances and extensions. Within 30 days of being served the 958.23 Settlement. Postal Service’s Complaint alleging li- AUTHORITY: 39 U.S.C. 204; 39 U.S.C. 401; 39 ability under 39 U.S.C. 3018, the re- U.S.C. 3001; 39 U.S.C. 3018. spondent may request a hearing by fil- SOURCE: 74 FR 18631, Apr. 24, 2009, unless ing a written Hearing Petition with the otherwise noted. Recorder. The respondent’s Petition must include the following: § 958.1 Purpose. (a) The words ‘‘Petition for Hearing This part establishes the procedures Related to Prohibitions Regarding the governing the hearing and appeal Mailing of Hazardous Material’’ or rights of any person alleged to be liable other words reasonably identifying it for civil penalties, clean-up costs and/ as such; or damages for mailing hazardous materials and/or related violations under (b) The name of the respondent as 39 U.S.C. 3018. well as his or her work and home addresses, and work and home telephone § 958.2 Definitions. numbers; and other address and tele- As used in this part: phone number where the respondent (a) Complaint refers to the determina- may be contacted about the hearing tion by the Determining Official that proceedings; an individual has violated the prohibi- (c) The date on which the respondent tion against mailing hazardous mate- received the Complaint issued by the rials and/or related violations under 39 Determining Official; U.S.C. 3018. (d) A statement indicating whether (b) Initial Decision refers to the writ- the respondent requests an oral hear- ten decision which the Presiding Offi- ing or a decision solely on the written cer renders. record; (c) Determining Official refers to the (e) If the respondent requests an oral Chief Postal Inspector or designee. hearing, a statement proposing a city (d) Judicial Officer refers to the Judi- for the hearing site, with justification cial Officer or Acting Judicial Officer of the United States Postal Service or for holding the hearing in that city, as designee within the Judicial Officer well as recommended dates for the Department. hearing; and (e) Party refers to the Postal Service (f) A statement admitting or denying or the respondent. each of the allegations of liability (f) Person refers to any individual, made in the Complaint, and stating partnership, corporation, association, any defense on which the respondent or private organization. intends to rely.

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§ 958.4 Referral of complaint. (b) The Notice of Docketing and Hearing required by paragraph (a) of (a) If the respondent fails to request this section may include: a hearing within the specified period, the Determining Official shall transmit (1) The tentative site, date, and time the Complaint to the Judicial Officer of the oral hearing, if one is requested; for referral to a Presiding Officer, who (2) The legal authority and jurisdic- shall issue an Initial Decision based tion under which the hearing is to be upon the information contained in the held; Complaint. (3) The nature of the hearing; (b) If the respondent files a Hearing (4) The matters of fact and law to be Petition, the Determining Official, decided; upon receiving a copy of the Petition, (5) A description of the procedures shall promptly transmit to the Pre- governing the conduct of the hearing; siding Officer a copy of the Postal and Service’s Complaint. (6) Such other information as the Presiding Officer deems appropriate. § 958.5 Scope of hearing; evidentiary standard. § 958.7 Hearing location. (a) A hearing under this part shall be An oral hearing under this part shall conducted by the Presiding Officer on be held: the record: (a) In the judicial district of the (1) To determine whether the re- United States in which the respondent spondent is liable under 39 U.S.C. 3018, resides or transacts business; and (b) In the judicial district of the (2) If so, to determine the amount of United States in which the incident or any civil penalties, clean-up costs and/ incidents occurred upon which the de- or damages to be imposed. termination of liability under 39 U.S.C. (b) The Postal Service must prove its 3018 was made by the Determining Offi- case against a respondent by a prepon- cial; or derance of the evidence. (c) In such other place as may be de- (c) The parties may offer for inser- termined by the Presiding Officer. tion onto the record such relevant evidence as they deem appropriate and as § 958.8 Rights of parties. would be admissible under the gen- Subject to the sound discretion of the erally accepted rules of evidence ap- Presiding Officer, acting under § 958.9, plied in the courts of the United States parties to a hearing under this part in nonjury trials, subject, however, to shall have the right: the sound discretion of the Presiding (a) To be accompanied, represented, Officer in supervising the extent and and advised, by an attorney or rep- manner of presentation of such evi- resentative of his or her own choosing; dence. In general, admissibility will hinge on relevancy and materiality. (b) To participate in any conferences However, relevant evidence may be ex- held by the Presiding Officer; cluded if its probative value is substan- (c) To agree to stipulations of fact or tially outweighed by the danger of unlaw, which shall be made part of the fair prejudice, or by considerations of record; undue delay, waste of time, or needless (d) To make opening and closing presentation of cumulative evidence. statements at the oral hearing; (e) To present oral and documentary § 958.6 Notice of docketing and hear- evidence relevant to the issues; ing. (f) To submit rebuttal evidence; (a) Within a reasonable time after re- (g) To conduct such cross-examina- ceiving the respondent’s Hearing Peti- tion as may be required for a full and tion and the Complaint, the Presiding true disclosure of the facts; and Officer shall serve upon the respondent (h) To submit written briefs, pro- and the Determining Official, a Notice posed findings of fact, and proposed of Docketing and Hearing. conclusions of law.

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§ 958.9 Responsibilities and authority alty considerations contained in 39 of presiding officer. U.S.C. 3018(e). (a) The Presiding Officer shall con- § 958.10 Prehearing conferences. duct a fair and impartial hearing, avoid unnecessary delay, maintain order, and (a) At a reasonable time after issuing assure that a record of the proceeding the Notice of Docketing and Hearing, is made. and with adequate notice to the par- (b) The Presiding Officer’s authority ties, the Presiding Officer may con- includes, but is not limited to, the fol- duct, in person or by telephone, one or lowing: more prehearing conferences to discuss (1) Establishing, upon adequate no- the following: tice to all parties, the date and time of (1) Simplification of the issues; the oral hearing, if any, as well as, in (2) The necessity or desirability of accordance with § 958.7, selecting the amendments to the pleadings, includ- hearing site; ing the need for a more definite statement; (2) Holding conferences, by telephone (3) Stipulations or admissions of fact or in person, to identify or simplify the or as to the contents and authenticity issues, or to consider other matters of documents; that may aid in the expeditious resolu- (4) Limitation of the number of wit- tion of the proceeding; nesses; (3) Continuing or recessing the hear- (5) Exchange of witness lists, copies ing in whole or in part for a reasonable of prior statements of witnesses, and period of time; copies of hearing exhibits; (4) Administering oaths and affirma- (6) Scheduling dates for the exchange tions to witnesses; of witness lists and of proposed exhib- (5) Ruling on all offers, motions, re- its; quests by the parties, and other proce- (7) Discovery; dural matters; (8) Possible changes in the scheduled (6) Issuing any notices, orders, or oral hearing date, time or site, if re- memoranda to the parties concerning quested; and the proceedings; (9) Any other matters related to the (7) Regulating the scope and timing proceeding. of discovery; (b) Within a reasonable time after (8) Regulating the course of the hear- the completion of a prehearing con- ing and the conduct of the parties and ference, the Presiding Officer shall their representatives; issue an order detailing all matters (9) Examining witnesses; agreed upon by the parties, or ordered (10) Receiving, ruling on, excluding, by the Presiding Officer, at such con- or limiting evidence in order to assure ference. that relevant, reliable and probative evidence is elicited on the issues in dis- § 958.11 Respondent’s access to infor- pute, but irrelevant, immaterial or rep- mation. etitious evidence is excluded; Except as provided in this section, (11) Deciding cases, upon motion of a after receiving the Notice of Docketing party, in whole or in part by summary and Hearing the respondent may re- judgment where there is no disputed view and obtain a copy of all relevant issue of material fact; and material documents, transcripts, (12) Establishing the record in the records, and other materials which re- case; and late to the determination of liability (13) Issuing a written Initial Decision by the Determining Official under 39 containing findings of fact, conclusions U.S.C. 3018, and all exculpatory infor- of law, and determinations with re- mation in the possession of the Deter- spect to whether civil penalties, clean- mining Official relating to liability for up costs and/or damages for mailing civil penalties, clean-up costs and/or hazardous materials and/or related vio- damages for mailing hazardous mate- lations under 39 U.S.C. 3018 should be rials and/or related violations under 39 imposed, and if so, the amounts there- U.S.C. 3018. The respondent is not enti- of, after taking into account the pen- tled to review or obtain a copy of any

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document, transcript, record, or other testify personally at the hearing. In material which is privileged under Fed- such instances, however, deposition eral law. The Presiding Officer is au- testimony may be used to contradict or thorized to issue orders placing limita- impeach the testimony of the witness tions on the scope, method, time and given at the hearing. In cases sub- place for accessing this information, mitted for a decision on a written and provisions for protecting the se- record, the Presiding Officer may, in crecy of confidential information or his or her discretion, receive deposition documents. testimony as evidence in supplementation of that record. § 958.12 Depositions; interrogatories; (c) Interrogatories to parties. After the admission of facts; production and inspection of documents. issuance of a Notice of Docketing and Hearing, a party may serve on the (a) General policy and protective orders. other party written interrogatories. The parties are encouraged to engage Within 30 days after service, the party in voluntary discovery procedures. In served shall answer each interrogatory connection with any discovery proce- separately in writing, signed under dure permitted under this part, the oath, or file objections thereto. Upon Presiding Officer may issue any order timely objection by the party, the Pre- which justice requires to protect a siding Officer will determine the extent party or person from annoyance, em- to which the interrogatories will be barrassment, oppression, or undue bur- permitted. den or expense. Such orders may in- (d) Admission of facts. After the clude limitations on the scope, method, issuance of a Notice of Docketing and time and place for discovery, and provi- Hearing, a party may serve upon the sions for protecting the secrecy of confidential information or documents. other party a request for the admission Each party shall bear its own expenses of specified facts. Within 30 days after relating to discovery. service, the party served shall answer (b) Depositions. After the issuance of each requested fact or file objections a Notice of Docketing and Hearing, the thereto. Upon timely objection by the parties may mutually agree to, or the party, the Presiding Officer will deter- Presiding Officer may, upon applica- mine the extent to which the request tion of either party and for good cause for admission will be permitted. The shown, order the taking of testimony factual propositions set out in the re- of any person by deposition upon oral quest shall be deemed admitted upon examination or written interrogatories the failure of a party to respond to the before any officer authorized to admin- request for admission. ister oaths at the place of examination, (e) Production and inspection of docu- for use as evidence or for purposes of ments. Upon motion of a party showing discovery. The application for an order good cause therefor, and upon notice, of the Presiding Officer under this the Presiding Officer may order the paragraph shall specify whether the other party to produce and permit the purpose of the deposition is discovery inspection and copying or or for use as evidence. photographing of any designated docu- (1) The time, place, and manner of ments or objects, not privileged, spe- taking depositions shall be as mutually cifically identified, and their relevance agreed by the parties, or failing such and materiality to the cause or causes agreement, governed by order of the in issue explained, which are reason- Presiding Officer. ably calculated to lead to the discovery (2) No testimony taken by deposi- or admissible evidence. If the parties tions shall be considered as part of the cannot themselves agree thereon, the record in the hearing unless and until Presiding Officer shall specify just such testimony is offered and received terms and conditions in making the in- into evidence by order of the Presiding spection and taking the copies and pho- Officer. Deposition testimony will not tographs. ordinarily be received in evidence if an (f) Limitations. A discovery procedure oral hearing is requested by either may not be used to reach documents, party, and the deponent is available to transcripts, records, or other material

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which a person is not entitled to review randum of any communication between pursuant to § 958.11. the Presiding Officer and a party shall be transmitted by the Presiding Officer § 958.13 Sanctions. to all parties. (a) In general. The Presiding Officer may sanction a person, including any § 958.15 Post-hearing briefs. party, attorney or representative, for: Post-hearing briefs and reply briefs (1) Failing to comply with a lawful may be submitted upon such terms as order or prescribed procedure; established by the Presiding Officer at (2) Failing to prosecute or defend an the conclusion of the hearing. action; or (3) Engaging in other misconduct § 958.16 Transcript of proceedings. that interferes with the speedy, or- Testimony and argument at oral derly, or fair conduct of the hearing. hearings shall be reported verbatim, (b) Reasonableness. Any such sanc- unless the Presiding Officer orders oth- tion, including but not limited to those erwise. Transcripts or copies of the listed in paragraphs (c), (d), and (e) of proceedings may be obtained by the this section, shall reasonably relate to parties at such rates as may be fixed by the severity and nature of the failure contract between the reporter and the or misconduct. Postal Service. (c) Failure to comply with an order. When a party fails to comply with an § 958.17 Initial decision. order, including an order for taking a (a) After the conclusion of the hear- deposition, the production of evidence ing, and the receipt of briefs, if any, within the party’s control, or a request from the parties, the Presiding Officer for admission, the Presiding Officer shall issue a written Initial Decision, may: including his or her findings and deter- (1) Draw an inference in favor of the minations. Such decision shall include requesting party with regard to the in- the findings of fact and conclusions of formation sought; law which the Presiding Officer relies (2) Prohibit such party from intro- upon in determining whether the reducing evidence concerning, or other- spondent is liable for civil penalties, wise relying upon, testimony relating clean-up costs and/or damages for mail- to the information sought; ing hazardous materials and/or related (3) Permit the requesting party to in- violations under 39 U.S.C. 3018, and, if troduce secondary evidence concerning liability is found, shall set forth the the information sought; and amount of any civil penalties, clean-up (4) Strike any part of the pleadings costs and/or damages imposed. or other submissions of the party fail- (b) The Presiding Officer shall ing to comply with such request. promptly send to each party a copy of (d) Failure to prosecute or defend. If a his or her Initial Decision. A party party fails to prosecute or defend an may, in accordance with § 958.18, appeal action under this part, the Presiding an adverse Initial Decision to the Judi- Officer may dismiss the action, or cial Officer. Unless a party timely ap- enter an order of default and an Initial peals in accordance with § 958.18, the Decision. Presiding Officer’s Initial Decision, in- (e) Failure to file timely. The Presiding cluding the findings and determina- Officer may refuse to consider any motions, becomes the final agency deci- tion or other pleading, report, or re- sion. sponse which is not filed in a timely fashion. § 958.18 Appeal of initial decision to Judicial Officer. § 958.14 Ex parte communications. (a) Notice of appeal and supporting Communications between a Presiding brief. A party may appeal an adverse Officer and a party shall not be made Initial Decision by filing, within 30 on any matter in issue unless on notice days after the Presiding Officer issues and opportunity for all parties to par- the Initial Decision, a Notice of Appeal ticipate. This prohibition does not with the Recorder. The Judicial Officer apply to procedural matters. A memo- may extend the filing period but only if

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the party files a request for an exten- (b) The original and three copies of sion within the initial 30-day period all pleadings and documents in a pro- and demonstrates good cause for such ceeding conducted under this part shall extension. be filed with the Recorder, Judicial Of- (1) The Notice of Appeal must be ac- ficer Department, United States Postal companied by a written brief speci- Service, 2101 Wilson Boulevard, Suite fying the party’s exceptions, and any 600, Arlington, Virginia 22201–3078. Nor- reasons for such exceptions, to the Pre- mal Recorder business hours are be- siding Officer’s Initial Decision. tween 8:15 a.m. and 4:45 p.m., eastern (2) Within 30 days of receiving the standard or daylight saving time. The party’s brief, the opposing party may Recorder will transmit a copy of each file with the Judicial Officer a response document filed to the other party, and to the specified exceptions to the Pre- the original to the Presiding Officer. siding Officer’s Initial Decision. (c) Pleadings or other document (b) Form of review. Review by the Ju- transmittals to, or communications dicial Officer will be based entirely on with, the Postal Service, other than to the record and written submissions. the Recorder under paragraph (a) of this section, shall be made through the (1) The Judicial Officer may affirm, Determining Official or designated reduce, reverse, or remand any deter- Postal Service attorney. If a notice of mination about a penalty or assess- appearance by a representative is filed ment by the Presiding Officer. on behalf of the respondent, pleadings (2) The Judicial Officer shall not con- or document transmittals to, or com- sider any argument or objection that munications with, the respondent shall was not raised in the hearing unless be made through his or her representa- the interested party demonstrates that tive. the failure to raise the argument or objection before the Presiding Officer was § 958.20 Service of notice of docketing caused by extraordinary cir- and hearing, other documents. cumstances. Unless otherwise specified, service of (3) If any party demonstrates to the a Notice of Docketing and Hearing or satisfaction of the Judicial Officer that any other document under this part additional evidence not presented at shall be effected by registered or cer- the hearing is material and that there tified mail, return receipt requested, or were reasonable grounds for the failure by personal delivery. In the case of per- to present such evidence, the Judicial sonal service, the person making serv- Officer may remand the matter to the ice shall, if possible, secure from the Presiding Officer for consideration of party or other person sought to be such additional evidence. served, or his or her agent, a written (c) Decision of Judicial Officer. The Ju- acknowledgement of receipt, showing dicial Officer shall promptly serve each the date and time of such receipt. If party to the appeal with a copy of his the person upon whom service is made or her decision. The decision of the Ju- declines to acknowledge receipt, the dicial Officer constitutes final agency person effecting service shall execute a action and becomes final and binding statement, indicating the time, place on the parties. and manner of service, which shall constitute evidence of service. § 958.19 Form and filing of documents. (a) Every pleading filed in a pro- § 958.21 Computation of time. ceeding under this part must contain a In computing any period of time pro- caption setting forth the title of the vided for by this part, or any order action, the docket number (after as- issued pursuant to this part, the time signment by the Recorder), an accurate begins with the day following the act, designation of the document, and the event, or default, and includes the last name, address, and telephone number day of the period, unless it is a Satur- of the party on whose behalf the paper day, Sunday, or legal holiday observed was filed. It shall also be signed by the by the Federal Government, in which party or party representative submit- event it includes the next business day. ting the document. Except as otherwise provided in these

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rules or an applicable order, prescribed SOURCE: 39 FR 33213, Sept. 16, 1974, unless periods of time are measured in cal- otherwise noted. endar days rather than business days. § 959.1 Authority for rules. § 958.22 Continuances and extensions. These rules are issued by the Judicial Continuances and extensions may be Officer of the U.S. Postal Service pur- granted under these rules for good suant to authority delegated by the cause shown. Postmaster General.

§ 958.23 Settlement. § 959.2 Scope of rules. Either party may make offers of set- These rules apply to all Postal Serv- tlement or proposals of adjustment at ice proceedings in which part 310 of any time. The Determining Official has this title authorizes appeals to the Ju- the exclusive authority to compromise dicial Officer from demands for postage or settle any determinations of liabil- for matter carried in violation of the ity for civil penalties, clean-up costs Private Express Statutes, and in pro- and/or damages for mailing hazardous ceedings to revoke, as to any person, materials and/or related violations the suspension of provisions of the Pri- under 39 U.S.C. 3018, without the con- vate Express Statutes in accordance sent of the Presiding Officer or Judi- with part 320 of this title. cial Officer. § 959.3 Office, business hours. PART 959—RULES OF PRACTICE IN The offices of the officials mentioned PROCEEDINGS RELATIVE TO THE in these rules are located at 2101 Wil- PRIVATE EXPRESS STATUTES son Boulevard, Suite 600, Arlington, VA 22201–3078 and are open Monday Sec. through Friday from 8:15 a.m. to 4:45 959.1 Authority for rules. p.m. 959.2 Scope of rules. 959.3 Office, business hours. [63 FR 66052, Dec. 1, 1998] 959.4 Demands for payment of postage. 959.5 Appeals from demands. § 959.4 Demands for payment of post- 959.6 Revocations of suspension. age. 959.7 Notice of hearing. Final demands for payment of post- 959.8 Service of petition filed under § 959.6. age will be accompanied by a copy of 959.9 Filing documents for the record. these rules and will: 959.10 Default. 959.11 Amendment of pleadings. (a) State that the demand is final un- 959.12 Continuances and extensions. less appealed under these rules within 959.13 Hearings. 15 days after receipt of the demand; 959.14 Change of place of hearings. (b) Describe the transaction on which 959.15 Appearances. the demand is based and the provisions 959.16 Presiding officers. of law or regulation alleged to have 959.17 Evidence. been violated; and 959.18 Subpoenas. (c) State the manner in which the 959.19 Witness fees. 959.20 Depositions. amount of the demand is computed. 959.21 Transcript. 959.22 Proposed findings and conclusions. § 959.5 Appeals from demands. 959.23 Decisions. (a) A party upon whom a demand for 959.24 Exceptions to initial decision or ten- postage has been made may appeal tative decision. from the demand by filing a petition, 959.25 Judicial Officer. in triplicate, with the Recorder, Judi- 959.26 Motion for reconsideration. 959.27 Modification or revocation of orders. cial Officer Department, within 15 days 959.28 Computation of time. after receipt of the demand. 959.29 Official record. (b) The petition shall: 959.30 Public information. (1) Be signed personally by an indi- 959.31 Ex parte communications. vidual petitioner, by one of the part- AUTHORITY: 39 U.S.C. 204, 401; 39 CFR ners of a partnership, or by an officer 224.1(c)(6)(ii)(D). of a corporation or association;

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(2) State the reasons why the person tion or association, by an officer there- filing the petition (designated the ‘‘Pe- of. titioner’’ in these rules) believes the de- (5) The answer shall set forth the remand is not justified; spondent’s address and the name and (3) Admit or deny each fact alleged in address of respondent’s attorney, if re- the demand and allege any facts upon spondent is represented by counsel. which the Petitioner relies to show (6) The answer shall affirmatively compliance with applicable laws and state whether the respondent will ap- regulations; and, pear in person or by counsel at the (4) Be accompanied by a copy of the hearing. demand. (7) If the respondent does not desire (c) Factual allegations that are not to appear at the hearing in person or denied by the petition may be deemed by counsel, the matter shall be deemed to have been admitted. The demand submitted for determination pursuant and the petition (together with other to paragraph (b) of § 959.10. documents authorized in this part) [39 FR 33213, Sept. 16, 1974, as amended at 63 shall become the pleadings in appeals FR 66052, Dec. 1, 1998] from demands. [39 FR 33213, Sept. 16, 1974, as amended at 63 § 959.7 Notice of hearing. FR 66052, Dec. 1, 1998] When a petition is filed, the Recorder shall issue a notice of hearing, stating § 959.6 Revocations of suspension. the time and place of the hearing and (a) The General Counsel, or a member the date for filing an answer which of the General Counsel’s staff as may shall not exceed 15 days from the date be designated, may initiate a revoca- of service of the petition, and a ref- tion of the suspension of the Private erence to the effect of failure to file an Express Statutes as provided in part answer or appear at the hearing. (See 320 of this title as to any person, by fil- §§ 959.5(c), 959.6(b), and 959.10.) When- ing, in triplicate, a petition with the ever practicable, the hearing date shall Recorder which be within 30 days of the date of the no- (1) Names the person involved; tice. (2) States the legal authority under [39 FR 33213, Sept. 16, 1974, as amended at 63 which the proceeding is initiated; FR 66052, Dec. 1, 1998] (3) States the facts in a manner sufficient to enable the person named to § 959.8 Service of petition filed under make answer thereto; and, § 959.6. (4) Recommends the issuance of an (a) The Recorder shall cause a notice appropriate order. of hearing and a copy of the petition to (b) Answer. (1) The person named in be transmitted to the postmaster at the petition (designated the ‘‘Respond- any office of address of the respondent ent’’ in these rules) shall file an answer in which the respondent is doing busi- with the Recorder within 15 days after ness, which shall be delivered to the re- being served with a copy of the petition spondent or respondent’s agent by said in accordance with § 959.8. postmaster or the postmaster’s des- (2) The answer shall contain a con- ignee. A receipt acknowledging deliv- cise statement admitting, denying, or ery of the notice shall be secured from explaining each of the allegations set the respondent or respondent’s agent forth in the petition. and forwarded to the Recorder, to be- (3) Any facts alleged in the petition come a part of the official record. which are not denied, or which are ex- (b) If, after 5 days, the postmaster or pressly admitted in the answer, may be the postmaster’s designee, can find no considered as proved, and no further person to accept service of the notice evidence regarding these facts need be of hearing and petition pursuant to adduced at the hearing. paragraph (a) of this section, the notice (4) The answer shall be signed person- and copy of the petition may be deliv- ally by an individual respondent, or in ered in the usual manner as other mail the case of a partnership, by one of the addressed to the respondent. A state- partners, or, in the case of a corpora- ment, showing the time and place of

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delivery, signed by the postal employee (b) By consent of the parties, a plead- who delivered the notice of hearing and ing may be amended at any time. Also, petition shall be forwarded to the Re- a party may move to amend a pleading corder and such statement shall con- at any time prior to the close of the stitute evidence of service. hearing and, provided that the amend- [39 FR 33213, Sept. 16, 1974, as amended at 63 ment is reasonably within the scope of FR 66052, Dec. 1, 1998] the proceeding initiated by the petition, the presiding officer shall make § 959.9 Filing documents for the such ruling on the motion as he or she record. deems fair and equitable to the parties. (a) Each party shall file with the Re- (c) When issues not raised by the corder pleadings, motions, orders and pleadings, but reasonably within the other documents for the record. The scope of the proceedings initiated by Recorder shall cause copies to be deliv- the petition, are tried by express or im- ered promptly to other party(ies) to plied consent of the parties, they shall the proceeding and to the presiding of- be treated in all respects as if they had ficer. been raised in the pleadings. Such (b) The parties shall submit three amendments as may be necessary to copies of all documents unless other- make the pleadings conform to the evi- wise ordered by the presiding officer. dence, and to raise such issues, shall be One copy shall be signed as the origi- allowed at any time upon the motion of nal. any party. (c) Documents shall be dated and state the title of the proceeding and, (d) If a party objects to the introduc- except initial petitions, the docket tion of evidence at the hearing on the number. Any pleading or other docu- ground that it is not within the issues ment required by order of the presiding made by the pleadings, but fails to sat- officer to be filed by a specified date, isfy the presiding officer that an shall be delivered to the Recorder on or amendment of the pleadings would before such date. The date of filing prejudice the objecting party on the shall be entered thereon by the Re- merits, the presiding officer may allow corder. the amendment and may grant a continuance to enable the objecting party [39 FR 33213, Sept. 16, 1974, as amended at 63 to rebut the evidence presented. FR 66052, Dec. 1, 1998] (e) The presiding officer may, upon § 959.10 Default. reasonable notice and upon such terms (a) If the respondent fails to file an as are just, permit service of supple- answer within the time specified in the mental pleadings setting forth trans- notice of hearing, the respondent shall actions, occurrences, or events which be deemed in default and to have have happened since the date of the waived hearing and further procedural pleading sought to be supplemented steps. The Judicial Officer shall there- and which are relevant to any of the after issue an order without further no- issues involved. tice to the respondent. [39 FR 33213, Sept. 16, 1974, as amended at 63 (b) If the respondent files an answer FR 66052, Dec. 1, 1998] but fails to appear at the hearing, the presiding officer shall receive peti- § 959.12 Continuances and extensions. tioner’s evidence and render an initial Continuances and extensions will not decision. be granted by the presiding officer ex- [39 FR 33213, Sept. 16, 1974, as amended at 63 cept for good cause found. FR 66052, Dec. 1, 1998] § 959.13 Hearings. § 959.11 Amendment of pleadings. Hearings are held at 2101 Wilson Bou- (a) Amendments proposed prior to levard, Suite 600, Arlington, VA 22201– the hearing shall be filed with the Re- 3078, or other locations designated by corder. Amendments proposed there- the presiding officer. after shall be filed with the presiding officer. [63 FR 66052, Dec. 1, 1998]

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§ 959.14 Change of place of hearings. (6) Require the filing of briefs or Not later than the date fixed for the memoranda of law on any matter upon filing of the answer, a party may file a which he or she is required to rule; written request that a hearing be held (7) Order prehearing conferences for at a place other than that designated the purpose of settlement or sim- in the notice. The party shall support plification of issues by the parties; the request with a statement outlining: (8) Order the proceeding reopened at (a) The evidence to be offered in such any time prior to his or her decision place; for the receipt of additional evidence; (b) The names and addresses of the and, witnesses who will testify; and, (9) Render an initial decision if the (c) The reasons why such evidence presiding officer is an Administrative cannot be produced at Arlington, VA. Law Judge, which becomes the final de- The presiding officer shall give consid- cision of the Postal Service unless a eration to the convenience and neces- timely appeal is taken; the Judicial Of- sity of the parties and the relevancy of ficer may issue a tentative or a final the evidence to be offered. decision. [39 FR 33213, Sept. 16, 1974, as amended at 63 [39 FR 33213, Sept. 16, 1974, as amended at 63 FR 66052, Dec. 1, 1998] FR 66052, Dec. 1, 1998] § 959.15 Appearances. § 959.17 Evidence. (a) A respondent may appear and be heard in person or by attorney. (a) Except as otherwise provided in (b) An attorney may practice before these rules, the rules of evidence gov- the Postal Service in accordance with erning civil proceedings in matters not the rules in part 951 of this title. involving trial by jury in the District (c) When a respondent is represented courts of the United States shall gov- by an attorney, all pleadings and other ern. However, such rules may be re- papers subsequent to the initial peti- laxed to the extent that the presiding tion shall be mailed to the attorney. officer deems proper to insure a fair (d) A respondent must promptly file a hearing. The presiding officer shall ex- notice of change of attorney. clude irrelevant, immaterial or repetitious evidence. § 959.16 Presiding officers. (b) Testimony shall be under oath or (a) The presiding officer shall be ei- affirmation and witnesses shall be sub- ther an Administrative Law Judge ject to cross-examination. qualified in accordance with law, or the (c) Agreed statements of fact may be Judicial Officer. The Chief Administra- received into evidence. tive Law Judge shall assign cases to (d) Official notice or knowledge may Administrative Law Judges upon rota- be taken of the types of matters of tion so far as practicable. The Judicial which judicial notice or knowledge Officer may, for good cause found, preside at the reception of evidence in pro- may be taken. ceedings upon request of either party. (e) The written statement of a com- (b) The presiding officer shall have petent witness may be received into authority to: evidence provided that such statement (1) Administer oaths and affirma- is relevant to the issues, that the wit- tions; ness shall testify under oath at the (2) Examine witnesses; hearing that the statement is in all re- (3) Rule upon offers of proof, admissi- spects true, and, in the case of expert bility of evidence and matters of proce- witnesses, that the statement correctly dure; states his or her opinion or knowledge (4) Order any pleading amended upon concerning the matters in question. motion of a party at any time prior to (f) A party who objects to the admis- the close of the hearing; sion of evidence shall make a brief (5) Maintain discipline and decorum statement of the grounds for the objec- and exclude from the hearing any per- tion. Formal exceptions to the rulings son acting in an indecorous manner;

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of the presiding officer are unneces- taken by deposition as directed in the sary. order. All objections made at the time [39 FR 33213, Sept. 16, 1974, as amended at 63 of examination shall be noted by the FR 66052, Dec. 1, 1998] deposition officer and the evidence objected to shall be taken subject to the § 959.18 Subpoenas. objections. In lieu of participating in The Postal Service is not authorized the oral examination, a party may by law to issue subpoenas requiring the transmit written interrogatories to the attendance or testimony of witnesses deposition officer, who shall propound or the production of documents. This them to the witness and record the an- does not affect the authority of the swers verbatim. Objections to rel- Chief Postal Inspector to issue sub- evancy or materiality of testimony, or poenas for the production of documents to errors and irregularities occurring or information pursuant to § 233.1(c) of at the oral examination in the manner this chapter. of taking the deposition, in the form or [39 FR 33213, Sept. 16, 1974, as amended at 56 relevancy or materiality of the ques- FR 55825, Oct. 30, 1991] tions or answers, in the oath or affirmation, or in the conduct of the par- § 959.19 Witness fees. ties, and errors of any kind which The Postal Service does not pay fees might be obviated, cured or removed if and expenses for a respondent’s wit- promptly presented, are waived unless nesses or for depositions requested by a timely objection is made at the taking respondent. of the deposition. (d) At the hearing, any part or all of § 959.20 Depositions. the deposition may be offered into evi- (a) Not later than 5 days after the fil- dence by any party who was present or ing of respondent’s answer, any party represented at the taking of the deposi- may file an application with the Re- tion or who had notice thereof. If the corder for the taking of testimony by deposition is not offered and received deposition. In support of such applica- into evidence, it shall not be consid- tion, the applicant shall submit under ered as a part of the record. The admis- oath or affirmation, a statement con- sibility of depositions or parts thereof taining the reasons why such testi- shall be governed by the rules of evi- mony should be taken by deposition, dence. the time and place, and the name and address of the witness whose deposition (e) The party requesting the deposi- is desired, the subject matter of the tion shall pay all fees required to be testimony of each witness, its rel- paid to witnesses and the deposition of- evancy, and the name and address of ficer, and shall provide an original and the person before whom the deposition one copy thereof for the official record, is to be taken. and shall serve one copy upon the op- (b) If the application be granted, the posing party. order shall specify the time and place (f) Within the United States, or with- thereof, the name of the witness, the in a territory or possession subject to person before whom the deposition is the dominion of the United States, to be taken, and any other necessary depositions may be taken before an of- information. ficer authorized to administer oaths by (c) Each deponent shall first be duly the laws of the United States or of the sworn, and the adverse party shall have place where the examination is held; the right to cross-examine. The ques- within a foreign country, depositions tions and answers, together with all may be taken before a secretary of an objections, shall be reduced to writing embassy or legation, consul general, and, unless waived by stipulation of vice consul or consular agent of the the parties, shall be read to and sub- United States, or any other person des- scribed by the witness in the presence ignated in the order for the taking of of the deposition officer who shall cer- the deposition. tify it in the usual form. The deposition officer shall file the testimony

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(g) Depositions may also be taken to a proposed correction shall be con- and submitted on written interrog- sidered to be concurrence. Thereafter, atories in substantially the same man- the presiding officer shall by order ner as depositions taken by oral exam- specify the corrections to be made in ination. When a deposition is taken the transcript. The presiding officer on upon written interrogatories and cross- his or her own initiative may order interrogatories, none of the parties corrections to be made in the tran- shall be present or represented, and no script with prompt notice to the par- person, other than the witness, a steno- ties of the proceeding. Any changes or- graphic reporter, and the deposition of- dered by the presiding officer other ficer, shall be present at the examina- than by agreement of the parties shall tion of the witness, which fact shall be be subject to objection and exception. certified by the deposition officer, who shall propound the interrogatories and [39 FR 33213, Sept. 16, 1974, as amended at 63 cross-interrogatories to the witness in FR 66052, Dec. 1, 1998] their order and cause the testimony to § 959.22 Proposed findings and conclu- be reduced to writing in the witness’ sions. own words. (a) Each party, except one who fails [39 FR 33213, Sept. 16, 1974, as amended at 63 to answer the complaint or, having an- FR 66052, Dec. 1, 1998] swered, either fails to appear at the hearing or indicates in the answer that § 959.21 Transcript. he or she does not desire to appear, (a) Hearings shall be stenographi- may submit proposed findings of fact, cally reported by a contract reporter of conclusions of law and supporting rea- the Postal Service under the super- sons either in oral or written form. The vision of the assigned presiding officer. presiding officer may also require the Argument upon any matter may be ex- parties to submit proposed findings of cluded from the transcript by order of fact and conclusions of law with sup- the presiding officer. A copy of the porting reasons. transcript shall be a part of the record (b) Proposed findings of fact, conclu- and the sole official transcript of the sions of law and supporting reasons not proceeding. Copies of the transcript presented orally before the close of the shall be supplied to the parties by the hearing, shall, unless otherwise di- reporter at rates not to exceed the rected by the presiding officer, be filed maximum rates fixed by the contract within 15 days after the delivery of the between the Postal Service and the re- official transcript to the Recorder, who porter. Copies of parts of the official shall notify the parties of the date of record, other than the transcript, may its receipt. The proposed findings of be obtained by the respondent from the fact, conclusions of law and supporting reporter upon the payment of a reason- reasons shall be set forth in serially able price therefor. numbered paragraphs, and shall state (b) Changes in the official transcript with particularity, all pertinent evi- may be made only when they involve dentiary facts in the record with appro- errors affecting substance, and then priate citations to the transcript or ex- only in the manner herein provided. No hibits supporting the proposed find- physical changes shall be made in or ings. Each proposed conclusion of law upon the official transcript, or copies shall be separately stated. thereof, which have been filed with the record. Within 10 days after the receipt [39 FR 33213, Sept. 16, 1974, as amended at 63 by any party of a copy of the official FR 66052, Dec. 1, 1998] transcript, or any part thereof, a party may file a motion requesting correc- § 959.23 Decisions. tion of the transcript. The opposing (a) Oral decisions. The presiding offi- party shall, within such time as may cer may, in his or her discretion, be specified by the presiding officer, render an oral decision (an initial deci- notify the presiding officer in writing sion by an Administrative Law Judge, of his or her concurrence or disagree- or a tentative or final decision by the ment with the requested corrections. Judicial Officer) at the close of the Failure to interpose timely objection hearing. A party who desires an oral

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decision shall notify the presiding offi- (d) Upon receipt of the brief on ap- cer and the opposing party at least 5 peal from an initial decision of an Ad- days prior to the date set for the hear- ministrative Law Judge, the Recorder ing. Either party may submit proposed shall promptly transmit the record to findings of fact and conclusions of law the Judicial Officer. The date for filing either orally or in writing at the con- the reply to a brief on appeal or to a clusion of the hearing. brief in support of exceptions to a ten- (b) Written initial decision by Adminis- tative decision by the Judicial Officer trative Law Judge. A written initial de- is 10 days after the receipt thereof. No cision shall be rendered with all due additional briefs shall be received un- speed. The initial decision shall include less requested by the Judicial Officer. findings of fact and conclusions of law, (e) Briefs on appeal or in support of with the reasons therefor, upon all the exceptions and replies thereto shall be material issues of fact or law presented filed in triplicate with the Recorder, on the record, and an appropriate and contain the following matter in order. The initial decision shall become the order indicated: the final decision of the Postal Service (1) A subject index of the matters unless an appeal is taken in accordance presented, with page references; a table with § 959.24. of cases alphabetically arranged; a list of statutes and texts cited, with page (c) Written tentative or final decision by references. the Judicial Officer. When the Judicial (2) A concise abstract or statement of Officer presides at the hearing, he or the case. she shall issue a final or a tentative de- (3) Numbered exceptions to specific cision. Such decision shall include find- findings of fact or conclusions of law of ings of fact and conclusions of law, the presiding officer. with the reasons therefor, upon all the (4) A concise argument clearly set- material issues of fact or law presented ting forth points of fact and of law re- on the record, and appropriate order. lied upon in support of, or in opposition The tentative decision shall become to, each exception taken, together with the final decision of the Postal Service specific references to the pertinent unless exceptions are filed in accord- parts of the record and the legal or ance with § 959.24. other authorities relied upon. [39 FR 33213, Sept. 16, 1974, as amended at 63 (f) Unless permission is granted by FR 66052, Dec. 1, 1998] the Judicial Officer, no brief on appeal or in support of exceptions shall exceed § 959.24 Exceptions to initial decision 50 printed or 100 typewritten pages dou- or tentative decision. ble spaced. (a) A party in a proceeding presided (g) The Judicial Officer will extend over by an Administrative Law Judge, the time to file briefs only upon writ- except a party who failed to file an an- ten motion for good cause found. The swer, may appeal to the Judicial Offi- Recorder shall promptly notify the cer by filing exceptions in a brief on movant of the Judicial Officer’s deci- appeal within 15 days from the receipt sion on the motion. If a brief is not of the Administrative Law Judge’s filed within the time prescribed, the written initial decision. defaulting party will be deemed to (b) A party in a proceeding presided have abandoned the appeal or waived over by the Judicial Officer, except one the exceptions, and the initial or ten- who has failed to file an answer, may tative decision shall become the final file exceptions within 15 days from the decision of the Postal Service. receipt of the Judicial Officer’s written [39 FR 33213, Sept. 16, 1974, as amended at 63 tentative decision. FR 66052, Dec. 1, 1998] (c) When an initial or tentative decision is rendered orally at the close of § 959.25 Judicial Officer. the hearing, the presiding officer may The Judicial Officer is authorized (a) then establish and orally give notice to to act as presiding officer at hearings, the parties participating in the hearing (b) to render tentative decisions, (c) to of the time limit within which excep- render final decisions of the Postal tions must be filed. Service, (d) to refer the record in any

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proceedings to the Postmaster General § 959.30 Public information. or the Deputy Postmaster General who The Librarian of the Postal Service will make the final decision of the maintains for public inspection in the Postal Service, and (e) to revise or Library copies of all initial, tentative amend these rules of practice. The en- and final decisions of the Postal Serv- tire official record will be considered ice. The Recorder maintains the com- before a final decision of the Postal plete official record of every pro- Service is rendered. Before rendering a ceeding. final decision of the Postal Service, the Judicial Officer may order the hearing [39 FR 33213, Sept. 16, 1974, as amended at 63 reopened for the presentation of addi- FR 66052, Dec. 1, 1998] tional evidence by the parties. § 959.31 Ex parte communications. § 959.26 Motion for reconsideration. The provisions of 5 U.S.C. 551(14), A party may file a motion for recon- 556(d) and 557(d) prohibiting ex parte sideration of a final decision of the communications are made applicable Postal Service within 10 days after re- to proceedings under these rules of ceiving it, or within such longer period practice. as the Judicial Officer may fix. Each [42 FR 5358, Jan. 28, 1977] motion for reconsideration shall be accompanied by a brief clearly setting PART 960—RULES RELATIVE TO IM- forth the points of fact and of law relied upon in support of said motion. PLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN § 959.27 Modification or revocation of POSTAL SERVICE PROCEEDINGS orders. A party against whom an order has Subpart A—General Provisions been issued may file with the Recorder Sec. an application for modification or rev- 960.1 Purpose of these rules. ocation, addressed to the Judicial Offi- 960.2 When the Act applies. cer. The Recorder shall transmit a 960.3 Proceedings covered. copy of the application to the General 960.4 Eligibility of applicants. Counsel, who shall file a written reply 960.5 Standards for awards. within 10 days after filing, or such 960.6 Allowable fees and expenses. 960.7 Rulemaking on maximum rates for at- other period as the Judicial Officer torney fees. may fix. A copy of the reply shall be 960.8 Official authorized to take final action sent to the applicant by the Recorder. under the Act. Thereafter an order granting or denying such application in whole or in part Subpart B—Information Required from will be issued by the Judicial Officer. Applicants [39 FR 33213, Sept. 16, 1974, as amended at 63 960.9 Contents of application. FR 66052, Dec. 1, 1998] 960.10 Net worth exhibit. 960.11 Documentation of fees and expenses. § 959.28 Computation of time. 960.12 When an application may be filed. A designated period of time excludes Subpart C—Procedures for Considering the day the period begins, and includes Applications the last day of the period unless the last day is a Saturday, Sunday, or legal 960.13 Filing and service of documents. holiday, in which event the period runs 960.14 Answer to application. until the close of business on the next 960.15 Reply. business day. 960.16 Comments by other parties. 960.17 Settlement. § 959.29 Official record. 960.18 Further proceedings. 960.19 Decision. The transcript of testimony together 960.20 Further Postal Service review. with all pleadings, orders, exhibits, 960.21 Judicial review. briefs and other documents filed in the 960.22 Payment of award. proceedings shall constitute the offi- AUTHORITY: 5 U.S.C. 504 (c)(1); 39 U.S.C. 204, cial record of the proceeding. 401 (2).

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SOURCE: 46 FR 45945, Sept. 16, 1981, unless types of proceedings generally covered otherwise noted. are proceedings relative to false representation and cease and desist orders Subpart A—General Provisions and mailability under chapter 30 of title 39, U.S.C., with the exception of § 960.1 Purpose of these rules. proceedings under 39 U.S.C. 3008); and The Equal Access to Justice Act, 5 (2) Appeals of decisions of con- U.S.C. 504 (called ‘‘the Act’’ in this tracting officers made pursuant to sec- part), provides for the award of attor- tion 6 of the Contract Disputes Act of ney fees and other expenses to eligible 1978 (41 U.S.C. 605) before the Postal individuals and entities who are parties Service Board of Contract Appeals as to certain administrative proceedings provided in section 8 of that Act. (41 (called ‘‘adversary adjudications’’) be- U.S.C. 607). fore the Postal Service. An eligible (b) The Postal Service may also des- party may receive an award when it ignate a proceeding not listed in para- prevails over the Postal Service, unless graph (a) of this section as an adver- the Postal Service’s position was sub- sary adjudication for purposes of the stantially justified or special cir- Act by so stating in an order initiating cumstances make an award unjust. The the proceeding or designating the mat- rules in this part describe the parties ter for hearing. The failure to des- eligible for awards and the proceedings ignate a proceeding as an adversary ad- that are covered. They also explain judication shall not preclude the filing how to apply for awards, and the proce- of an application by a party who be- dures and standards that the Postal lieves the proceeding is covered by the Service will use to make them. Act; whether the proceeding is covered [46 FR 45945, Sept. 16, 1981, as amended at 52 will then be an issue for resolution in FR 6797, Mar. 5, 1987] proceedings on the application. (c) If a proceeding includes both mat- § 960.2 When the Act applies. ters covered by the Act and matters The Act applies to any adversary ad- specifically excluded from coverage, judication pending or commenced be- any award made will include only fees fore the Postal Service on or after Au- and expenses related to covered issues. gust 5, 1985. It also applies to any ad- [46 FR 45945, Sept. 16, 1981, as amended at 52 versary adjudication commenced on or FR 6798, Mar. 5, 1987; 67 FR 62179, Oct. 4, 2002] after October 1, 1984, and finally disposed of before August 5, 1985, provided § 960.4 Eligibility of applicants. that an application for fees and ex- (a) To be eligible for an award of at- penses, as described in subpart B of torney fees and other expenses under these rules, has been filed with the the Act, the applicant must be a party Postal Service within 30 days after Au- to the adversary adjudication for which gust 5, 1985, and to any adversary adju- it seeks an award. The term ‘‘party’’ is dication pending on or commenced on defined in 5 U.S.C. 551(3). The applicant or after October 1, 1981, in which an ap- must show by clear and convincing evi- plication for fees and other expenses dence that it meets all conditions of was timely filed and was dismissed for eligibility set out in this subpart and lack of jurisdiction. in subpart B and must submit addi- [52 FR 6797, Mar. 5, 1987] tional information to verify its eligibility upon order by the adjudicative § 960.3 Proceedings covered. officer. (a) The Act applies to adversary adju- (b) The types of eligible applicants dications conducted by the Postal are as follows: Service. These are: (1) An individual with a net worth of (1) Adjudications under 5 U.S.C. 554 not more than $2 million; in which the position of the Postal (2) The sole owner of an unincor- Service is presented by an attorney or porated business who has a net worth other representative who enters an ap- of not more than $7 million, including pearance and participates in the pro- both personal and business interests, ceeding (for the Postal Service, the and not more than 500 employees;

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(3) A charitable or other tax-exempt special circumstances that would make organization described in section an award unjust. 501(c)(3) of the Internal Revenue Code (g) An applicant that participates in (26 U.S.C. 501(c)(3)) with not more than a proceeding primarily on behalf of one 500 employees; or more other persons or entities that (4) A cooperative association as de- would be ineligible is not itself eligible fined in section 15(a) of the Agricul- for an award. tural Marketing Act (12 U.S.C. 1141j(a)) [46 FR 45945, Sept. 16, 1981, as amended at 52 with not more than 500 employees; and FR 6798, Mar. 5, 1987] (5) Any other partnerships, corporation, association, unit of local govern- § 960.5 Standards for awards. ment, or organization with a net worth (a) A prevailing applicant may re- of not more than $7 million and not ceive an award for fees and expenses in- more than 500 employees. curred in connection with a proceeding, (c) For the purposes of eligibility, the including expenses and fees incurred in net worth and number of employees of filing for an award under the Act, or in an applicant shall be determined as of a significant and discrete substantive the date the proceeding was initiated, portion of the proceeding, unless the which in proceedings before the Board position of the agency over which the of Contract Appeals is the date the ap- applicant has prevailed was substan- plicant files its appeal to the Board. tially justified. The position of the (d) An applicant who owns an unin- agency includes in addition to the posi- corporated business will be considered tion taken by the agency in the adver- as an ‘‘individual’’ rather than a ‘‘sole sary adjudication, the action or failure owner of an unincorporated business’’ if to act by the agency upon which the the issues on which the applicant pre- adversary adjudication is based. The vails are related primarily to personal burden of proof that an award should interests rather than to business inter- not be made to an eligible prevailing ests. applicant is on Postal Service counsel. (e) The employees of an applicant in- (b) An award will be reduced or de- clude all persons who regularly per- nied if the applicant has unduly or un- form services for remuneration for the reasonably protracted the proceeding applicant, under the applicant’s direc- or if special circumstances make the tion and control. Part-time employees award sought unjust. shall be included on a proportional [46 FR 45945, Sept. 16, 1981, as amended at 52 basis. FR 6798, Mar. 5, 1987] (f) The net worth and number of employees of the applicant and all of its § 960.6 Allowable fees and expenses. affiliates shall be aggregated to deter- (a) Awards will be based on rates cus- mine eligibility. Any individual, cor- tomarily charged by persons engaged poration or other entity that directly in the business of acting as attorneys, or indirectly controls or owns a major- agents and expert witnesses, even if the ity of the voting shares or other inter- services were made available without est of the applicant, or any corporation charge or at a reduced rate to the ap- or other entity of which the applicant plicant. Attorney fees may not be re- directly or indirectly owns or controls covered by parties appearing pro se in a majority of the voting shares or postal proceedings. other interest, will be considered an af- (b) No award for the fee of an attor- filiate for purposes of this part, unless ney or agent under these rules may ex- the adjudicative officer determines ceed $125.00 per hour, or such rate as that such treatment would be unjust prescribed by 5 U.S.C. 504. No award to and contrary to the purposes of the Act compensate an expert witness may ex- in light of the actual relationship be- ceed the highest rate at which the tween the affiliated entities. In addi- Postal Service pays expert witnesses. tion, the adjudicative officer may de- However, an award may also include termine that financial relationships of the reasonable expenses of the attor- the applicant other than those de- ney, agent, or witness as a separate scribed in this paragraph constitute item, if the attorney, agent or witness

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ordinarily charges clients separately rate should be used. It should also ex- for such expenses. plain fully the reasons why the higher (c) In determining the reasonableness rate is warranted. The Postal Service of the fee sought for an attorney, agent will respond to the request within 60 or expert witness, the adjudicative offi- days after it is filed, by determining to cer shall consider the following: initiate a rulemaking proceeding, de- (1) If the attorney, agent or witness nying the request, or taking other ap- is in private practice, his or her cus- propriate action. tomary fee for similar services, or, if an employee of the applicant, the fully [46 FR 45945, Sept. 16, 1981, as amended at 66 FR 55577, Nov. 2, 2001] allocated cost of the services; (2) The prevailing rate for similar § 960.8 Official authorized to take final services in the community in which the action under the Act. attorney, agent or witness ordinarily The Postal Service official who ren- performs services; ders the final agency decision in a pro- (3) The time actually spent in the ceeding under § 952.26 or § 953.15, or the representation of the applicant; panel that renders the decision in an (4) The time reasonably spent in light appeal before the Board of Contract of the difficulty or complexity of the Appeals under part 955 procedures, as issues in the proceeding; and the case may be, is authorized to take (5) Such other factors as may bear on final action on matters pertaining to the value of the services provided. the Equal Access to Justice Act as ap- (d) The reasonable cost of any study, plied to the proceeding. analysis, engineering report, test, project or similar matter prepared on [52 FR 6798, Mar. 5, 1987] behalf of a party may be awarded, to the extent that the charge for the serv- Subpart B—Information Required ice does not exceed the prevailing rate From Applicants for similar services, and the study or other matter was necessary for prepa- § 960.9 Contents of application. ration of the applicant’s case. (a) An application for an award of [46 FR 45945, Sept. 16, 1981, as amended at 52 fees and expenses under the Act shall FR 6798, Mar. 5, 1987; 66 FR 55577, Nov. 2, 2001] identify the applicant and the proceeding for which an award is sought. § 960.7 Rulemaking on maximum rates The application shall show that the ap- for attorney fees. plicant has prevailed and identify the (a) If warranted by an increase in the position of the Postal Service in the cost of living or by special cir- proceeding that the applicant alleges cumstances (such as limited avail- was not substantially justified. Unless ability of attorneys qualified to handle the applicant is an individual, the ap- certain types of proceedings), the Post- plication shall also state the number of al Service may adopt regulations pro- employees of the applicant and de- viding that attorney fees may be scribe briefly the type and purpose of awarded at a rate higher than $125.00 its organization or business. per hour, or such rate as prescribed by (b) The application shall also include 5 U.S.C. 504, in some or all of the types a statement that the applicant’s net of proceedings covered by this part. worth does not exceed $2 million (if an The Postal Service will conduct any individual) or $7 million (for all other rulemaking proceedings for this pur- applicants, including their affiliates.) pose under the informal rulemaking However, an applicant may omit this procedures of the Administrative Pro- statement if: cedure Act. (1) It attaches a copy of a ruling by (b) Any person may request the Post- the Internal Revenue Service that it al Service to initiate a rulemaking pro- qualifies as an organization described ceeding to increase the maximum rate in section 501(c)(3) of the Internal Rev- for attorney fees. The request should enue Code (26 U.S.C. 501(c)(3)) or, in the identify the rate the person believes case of a tax-exempt organization not the Postal Service should establish and required to obtain a ruling from the In- the types of proceedings in which the ternal Revenue Service on its exempt

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status, a statement that describes the detail, why it falls within one or more basis for the applicant’s belief that it of the specific exemptions from manda- qualifies under such section; or tory disclosure under the Freedom of (2) It states on the application that it Information Act, 5 U.S.C. 552(b) (1) is a cooperative association as defined through (9), why public disclosure of in section 15(a) of the Agricultural the information would adversely affect Marketing Act (12 U.S.C. 1141j(a)). the applicant, and why disclosure is (c) The application shall state the not required in the public interest. The amount of fees and expenses for which material in question shall be served on an award is sought. counsel representing the agency (d) The application may also include against which the applicant seeks an any other matters that the applicant award, but need not be served on any wishes the Postal Service to consider other party to the proceeding. If the in determining whether and in what adjudicative officer finds that the in- amount an award should be made. formation should not be withheld from (e) The application shall be signed by disclosure, it shall be placed in the the applicant or an authorized officer public record of the proceeding. Other- or attorney of the applicant. It shall also contain or be accompanied by a wise, any request to inspect or copy written verification under oath or the exhibit shall be disposed of in ac- under penalty of perjury that the infor- cordance with the Postal Service’s es- mation provided in the application is tablished procedures under the Free- true and correct. dom of Information Act, part 265 of this title. [46 FR 45945, Sept. 16, 1981, as amended at 52 FR 6798, Mar. 5, 1987] § 960.11 Documentation of fees and expenses. § 960.10 Net worth exhibit. (a) The application shall be accom- (a) Each applicant except a qualified panied by full documentation of the tax-exempt organization or cooperative fees and expenses, including the cost of association must provide with its application a detailed exhibit showing any study, analysis, engineering re- the net worth of the applicant and any port, test, project or similar matter, affiliates (as defined in § 960.4(f)) when for which an award is sought. A sepa- the proceeding was initiated. The ex- rate itemized statement shall be sub- hibit may be in any form convenient to mitted for each professional firm or in- the applicant that provides full disclo- dividual whose services are covered by sure of the applicant’s and its affili- the application, showing the hours ates’ assets and liabilities and is suffi- spent in connection with the pro- cient to determine whether the appli- ceeding by each individual, a descrip- cant qualifies under the standards in tion of the specific services performed, this part. The adjudicative officer may the rate at which each fee has been require an applicant to file additional computed, any expenses for which re- information to determine its eligibility imbursement is sought, the total for an award. amount claimed, and the total amount (b) Ordinarily, the net worth exhibit paid or payable by the applicant or by will be included in the public record of any other person or entity for the serv- the proceeding. However, an applicant ices provided. The adjudicative officer that objects to public disclosure of in- may require the applicant to provide formation in any portion of the exhibit vouchers, receipts, or other substan- and believes there are legal grounds for tiation for any expenses claimed. In ad- withholding it from disclosure may dition, the Board of Contract Appeals submit that portion of the exhibit di- may require an applicant to submit to rectly to the adjudicative officer in a an audit by the Postal Service of its sealed envelope labeled ‘‘Confidential claimed fees and expenses. Financial Information’’, accompanied (b) Where the case has been sustained by a motion to withhold the informa- in part and denied in part or where the tion from public disclosure. The mo- applicant has prevailed in only a sig- tion shall describe the information nificant and discrete substantive por- sought to be withheld and explain, in tion of the case, the application must

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be limited to fees and expenses allo- Board, when the Board issues a deci- cable to the portion of the case as to sion on quantum. which the applicant was the prevailing [46 FR 45945, Sept. 16, 1981, as amended at 52 party. FR 6798, Mar. 5, 1987] [46 FR 45945, Sept. 16, 1981, as amended at 52 FR 6798, Mar. 5, 1987] Subpart C—Procedures for Considering Applications § 960.12 When an application may be filed. § 960.13 Filing and service of docu- (a) An application may be filed when- ments. ever the applicant has prevailed in the Any application for an award or proceeding or in a significant and dis- other pleading or document related to crete substantive portion of the pro- an application shall be filed and served ceeding, but in no case later than 30 on all parties to the proceeding in the days after the Postal Service’s final same manner as other pleadings in the disposition of the proceeding. proceeding, except as provided in (b) If review or reconsideration is § 960.11(b) for confidential financial in- sought or taken of a decision as to formation. which an applicant believes it has prevailed, proceedings for the award of § 960.14 Answer to application. fees shall be stayed pending final dis- (a) Within 30 days after service of an position of the underlying controversy. application, counsel representing the (c) For purposes of this rule, final Postal Service may file an answer to disposition means the later of (1) the the application. Unless the Postal date on which an initial decision or Service counsel requests an extension other recommended disposition of the of time for filing or files a statement of merits of the proceeding by an adju- intent to negotiate under paragraph (b) dicative officer or intermediate review of this section, failure to file an answer board becomes administratively final; within the 30-day period may be treat- (2) Issuance of an order disposing of ed as a consent to the award requested. any petitions for reconsideration of the (b) If the Postal Service counsel and Postal Service’s final order in the pro- the applicant believe that the issues in ceeding; the fee application can be settled, they (3) If no petition for reconsideration may jointly file a statement of their is filed, the last date on which such a intent to negotiate a settlement. The petition could have been filed; filing of this statement shall extend (4) Issuance of a final order or any the time for filing an answer for an ad- other final resolution of a proceeding, ditional 30 days, and further extensions such as a settlement or voluntary dis- may be granted by the adjudicative of- missal, which is not subject to a peti- ficer upon request by Postal Service tion for reconsideration; counsel and the applicant. (5) In proceedings under 39 U.S.C. (c) The answer shall explain in detail 3005, on the date that an Administra- any objections to the award requested tive Law Judge enters an order indefi- and identify the facts relied on in sup- nitely suspending further proceedings port of the Postal Service’s position. If on the basis of a compromise agree- the answer is based on any alleged ment entered into between the parties; facts not already in the record of the or proceeding, the Postal Service shall in- (6) In proceedings before the Board of clude with the answer either sup- Contract Appeals, the Board of Con- porting affidavits or a request for fur- tract Appeals decision on quantum. ther proceedings under § 960.19. When the Board decides only entitlement and remands the issue of quan- § 960.15 Reply. tum to the parties, the final disposi- Within 15 days after service of an an- tion occurs when the parties execute swer, the applicant may file a reply. If an agreement on quantum, or if the the reply is based on any alleged facts parties cannot agree on quantum and not already in the record of the pro- resubmit the quantum dispute to the ceeding, the applicant shall include

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with the reply either supporting affida- tional proceedings are necessary to re- vits or a request for further pro- solve the issues. ceedings under § 960.19. [46 FR 45945, Sept. 16, 1981, as amended at 52 § 960.16 Comments by other parties. FR 6798, Mar. 5, 1987] Any party to a proceeding other than § 960.19 Decision. the applicant and Postal Service may file comments on an application within (a) The adjudicative officer shall 30 days after it is served or on an an- issue an initial decision on the applica- swer within 15 days after it is served. A tion as promptly as possible after com- commenting party may not participate pletion of proceedings on the applica- further in proceedings on the application. The decision shall include written tion unless the adjudicative officer de- findings and conclusions on the appli- termines that the public interest re- cant’s eligibility and status as a pre- quires such participation in order to vailing party, and an explanation of permit full exploration of matters the reasons for any difference between raised in the comments. the amount requested and the amount awarded. The decision shall also in- § 960.17 Settlement. clude, if at issue, findings on whether The applicant and the Postal Service the Postal Service’s position was sub- may agree on a proposed settlement of stantially justified, whether the appli- the award before final action on the ap- cant unduly protracted the pro- plication, either in connection with a ceedings, or whether special cir- settlement of the underlying pro- cumstances make an award unjust. If ceeding, or after the underlying pro- the applicant has sought an award ceeding has been concluded. If a pre- against the Postal Service and another vailing party and Postal Service coun- agency, the decision shall allocate re- sel agree on a proposed settlement of sponsibility for payment of any award an award before an application has made between the Postal Service and been filed, the application shall be filed the other agency, and shall explain the with the proposed settlement. reasons for the allocation made. (b) The Board of Contract Appeals § 960.18 Further proceedings. shall issue its decision on the applica- (a) Ordinarily, the determination of tion as promptly as possible after com- an award will be made on the basis of pletion of proceedings on the applica- the written record. However, on re- tion. Whenever possible, the decision quest of either the applicant or Postal shall be made by the same Administra- Service counsel, or on his or her own tive Judge or panel that decided the initiative, the adjudicative officer may contract appeal for which fees are order further proceedings, such as an sought. The decision shall be in the for- informal conference, oral argument, mat described in paragraph (a) of this additional written submissions, or an section. evidentiary hearing. Such further proceedings shall be held only when nec- [46 FR 45945, Sept. 16, 1981, as amended at 52 essary for full and fair resolution of the FR 6798, Mar. 5, 1987] issues arising from the application, and § 960.20 Further Postal Service review. shall be conducted as promptly as possible. Whether or not the position of (a) Either the applicant or Postal the agency was substantially justified Service counsel may seek review of the shall be determined on the basis of the initial decision on the fee application, entire administrative record that is in accordance with § 952.25 or § 953.14. If made in the adversary adjudication for neither the applicant nor the Postal which fees and other expenses are Service counsel seeks review, the ini- sought. tial decision on the application shall (b) A request that the adjudicative become a final decision of the Postal officer order further proceedings under Service 30 days after it is issued. If re- this section shall specifically identify view is taken, the Judicial Officer will the information sought or the disputed issue a final decision on the applica- issues and shall explain why the addition or remand the application to the

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adjudicative officer for further pro- 961.6 Filing, docketing and serving docu- ceedings. ments; computation of time; representa- (b) In Board of Contract Appeals pro- tion of parties. ceedings, either party may seek recon- 961.7 Answer to Petition and Supplement to Petition. sideration of the decision on the fee ap- 961.8 Hearing Official authority and respon- plication in accordance with 39 CFR sibilities. 955.30. 961.9 Effect of Hearing Official’s decision; motion for reconsideration. [46 FR 45945, Sept. 16, 1981, as amended at 52 961.10 Waiver of employee rights. FR 6798, Mar. 5, 1987] 961.11 Ex parte communications. § 960.21 Judicial review. AUTHORITY: 39 U.S.C. 204, 401; 5 U.S.C. 5514(a). A party other than the Postal Serv- ice may, within 30 days after a deter- SOURCE: 51 FR 1251, Jan. 10, 1986, unless mination on the award is made, appeal otherwise noted. the determination to the court of the § 961.1 Authority for rules. United States having jurisdiction to review the merits of the underlying deci- These rules are issued by the Judicial sion of the agency adversary adjudica- Officer pursuant to authority delegated tion in accordance with 5 U.S.C. by the Postmaster General. 504(c)(2). § 961.2 Scope of rules. [52 FR 6799, Mar. 5, 1987] The rules in this part apply to the hearing provided by section 5 of the § 960.22 Payment of award. Debt Collection Act of 1982, as amend- An applicant seeking payment of an ed, 5 U.S.C. 5514(a), on the Postal Serv- award shall submit to the Judicial Offi- ice’s determination of the existence or cer a copy of the Postal Service’s final amount of an employee debt to the decision granting the award, accom- Postal Service, or of the terms of the panied by a statement that the appli- employee’s debt repayment schedule. cant will not seek review of the deci- In addition, these rules, as appropriate, sion in the United States courts. Re- apply to a hearing under section 5 of quests for payment should be sent to: the Debt Collection Act when an Ad- Judicial Officer, 2101 Wilson Boulevard, ministrative Law Judge or an Adminis- Suite 600, Arlington, VA 22201–3078. The trative Judge in the Judicial Officer Judicial Officer shall submit certifi- Department is designated as the Hear- cation for payment to the Postal Data ing Official for a creditor Federal agen- Center. The Postal Service will pay the cy other than the Postal Service pursu- amount awarded to the applicant with- ant to an agreement between the Post- in 60 days, unless judicial review of the al Service and that agency. award or of the underlying decision of the adversary adjudication has been § 961.3 Definitions. sought by the applicant or any other (a) Employee refers to a current em- party to the proceeding. ployee of the Postal Service or another [46 FR 45945, Sept. 16, 1981, as amended at 63 Federal agency who is alleged to be in- FR 66052, Dec. 1, 1998] debted to the Postal Service or another creditor Federal agency and whose PART 961—RULES OF PRACTICE IN hearing under section 5 of the Debt PROCEEDINGS RELATIVE TO EM- Collection Act is being conducted under these rules. PLOYEE HEARING PETITIONS (b) General Counsel refers to the Gen- UNDER SECTION 5 OF THE DEBT eral Counsel of the Postal Service, and COLLECTION ACT includes a designated representative. (c) Hearing Official refers to an Ad- Sec. ministrative Law Judge qualified to 961.1 Authority for rules. hear cases under the Administrative 961.2 Scope of rules. 961.3 Definitions. Procedure Act, an Administrative 961.4 Employee petition for a hearing and Judge appointed under the Contract supplement to petition. Disputes Act of 1978, or any other 961.5 Effect of Petition filing. qualified person not under the control

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or supervision of the Postmaster Gen- and telephone number where the em- eral, who is designated by the Judicial ployee may be contacted about the Officer to conduct the hearing under hearing proceedings; section 5 of the Debt Collection Act of (3) A statement of the date the em- 1982, as amended, 5 U.S.C. 5514(a). ployee received the ‘‘Notice of Involun- (d) Judicial Officer refers to the Judi- tary Administrative Salary Offsets cial Officer or Acting Judicial Officer Under the Debt Collection Act,’’ and a of the United States Postal Service. copy of the Notice; (e) Notice of Involuntary Administrative (4) A statement indicating whether Salary Offsets Under the Debt Collection the employee requests an oral hearing Act refers to the formal written notice or a hearing based solely on written required by section 5 of the Debt Col- submissions; lection Act before involuntary collec- (5) If the employee requests an oral tion deductions can be taken from an hearing, a statement of the evidence he employee’s salary. or she will produce which makes an (f) Postmaster/Installation Head refers oral hearing necessary, including a list to the Postal Service official who is au- of witnesses, with their addresses, thorized under the Postal Service Em- whom the employee expects to call; the ployee and Labor Relations Manual to proposed city for the hearing site, with make the initial determination of em- justification for holding the hearing in ployee indebtedness and to issue the that city; and recommended alter- ‘‘Notice of Involuntary Administrative native dates for the hearing; which Salary Offsets Under the Debt Collec- should be within 40 days from filing the tion Act.’’ Petition; (g) Recorder refers to the Recorder, (6) A statement of the grounds upon Judicial Officer Department, U.S. Post- which the employee objects to the al Service, 2101 Wilson Boulevard, Postal Service’s determination of the Suite 600, Arlington, VA 22201–3078. existence or amount of the debt, or to [51 FR 1251, Jan. 10, 1986, as amended at 63 the proposed offset schedule. This FR 66053, Dec. 1, 1998] statement should identify and explain with reasonable specificity and brevity § 961.4 Employee petition for a hearing the facts, evidence, and legal argu- and supplement to petition. ments, if any, which the employee be- (a) If an employee desires a hearing, lieves support his or her position; prescribed by section 5 of the Debt Col- (7) Copies of all records in the em- lection Act, on the Postal Service’s de- ployee’s possession which relate to the termination of the existence or amount debt; and of a debt, or on the involuntary repay- (8) If an employee contends that the ment terms proposed by the Postal Postal Service’s proposed offset sched- Service, the employee must file a writ- ule would result in a severe financial ten, signed petition with the Recorder, hardship on the employee and his or Judicial Officer Department, U.S. Post- her spouse and dependents, an alter- al Service, 2101 Wilson Boulevard, native offset schedule, and a statement Suite 600, Arlington, VA 22201–3078, on and supporting documents indicating or before the fifteenth (15th) calendar for the employee and his or her spouse day following the employee’s receipt of and dependents for the one year pre- the Postal Service’s ‘‘Notice of Involun- ceding the Postal Service’s notice and tary Administrative Salary Offsets for the repayment period proposed by Under the Debt Collection Act.’’ the employee in his or her alternative (b) The hearing petition is to include offset schedule, their total income the following: from all sources; assets; liabilities; (1) The words, ‘‘Petition for Hearing number of dependents; and expenses for Under the Debt Collection Act,’’ promi- food, housing, clothing, transportation, nently captioned at the top of the first medical care, and exceptional expenses, page: if any. (2) The name of the employee peti- (c) The employee may, if necessary, tioner and the employee’s work and file with the Recorder, additional in- home addresses, and work and home formation as a Supplement to the Peti- telephone numbers; or other address tion on or before the thirtieth (30th)

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calendar day following the employee’s an attorney authorized to practice law receipt of the Postal Service’s ‘‘Notice in any of the United States or the Dis- of Involuntary Administrative Salary trict of Columbia or a territory of the Offsets Under the Debt Collection Act.’’ United States is filed in behalf of an [51 FR 1251, Jan. 10, 1986, as amended at 63 employee, further transmissions of FR 66053, Dec. 1, 1998] documents and other communications with the employee shall be made § 961.5 Effect of Petition filing. through his or her attorney rather Upon receipt and docketing of the than directly with the employee. employee’s Petition for a hearing, the § 961.7 Answer to Petition and Supple- Recorder will notify the Postmaster/In- ment to Petition. stallation Head and the General Coun- sel that the Petition has been filed and If the employee’s Petition states rea- that pursuant to section 5 of the Debt sons to support the employee’s posi- Collection Act, a timely-filed Petition tion, within 15 days from notice of the for a hearing stays further collection Petition, the General Counsel shall file action. an Answer to the Petition, and attach all available relevant records and docu- § 961.6 Filing, docketing and serving ments in support of the Postal Serv- documents; computation of time; ice’s claim, and a list of witnesses the representation of parties. Postal Service intends to call if an oral (a) Filing. All documents relating to hearing is granted. If the employee the Debt Collection Act hearing pro- files a Supplement to the Petition, the ceedings must be filed by the employee General Counsel, within ten (10) cal- or the General Counsel with the Re- endar days from the filing of the Sup- corder. (Normal Recorder office busi- plement with the Recorder must file ness hours are between 8:15 a.m. and any Supplemental Answer and records 4:45 p.m., eastern standard or day-light to support the position of the Postal saving time as appropriate during the Service. year.) The Recorder will transmit a copy of each document filed to the § 961.8 Hearing Official authority and other party, and the original to the responsibilities. Hearing Official. The Hearing Official shall provide a (b) Docketing. The Recorder will full and fair hearing. The proceedings maintain a docket record of Debt Col- must be expedited to ensure issuance of lection Act hearing petition pro- the final decision no later than 60 days ceedings and will assign each employee after the filing of the employee’s hear- Petition a docket number. After notifi- ing Petition. The Hearing Official’s au- cation of the docket number, the em- thority includes, but is not limited to, ployee and General Counsel should the following: refer to it on any further filings re- (a) Ruling on all offers, motions or garding the Petition. requests by the parties; (c) Time computation. A filing period (b) Issuing any notices, orders or under the rules in this part excludes memoranda to the parties concerning the day the period begins, and includes the hearing proceedings; the last day of the period unless the (c) Using telephone conferences with last day is a Saturday, Sunday, or legal the parties to expedite the proceedings. holiday, in which event the period runs A memorandum of a telephone con- until the close of business on the next ference will be transmitted to both par- business day. ties; (d) Representation of parties. After the (d) Determining if an oral hearing filing of the Petition, further document should be held; and setting the place, transmittals for, or communications date and time for the hearing or the with, the Postmaster/Installation Head taking of testimony by telephone con- or Postal Service shall be through ference; their representative, the General Coun- (e) Administering oaths or affirma- sel, or, if an appropriate notice of ap- tions to witnesses, and conducting the pearance is filed, the General Counsel’s hearing in a manner to maintain dis- designee. If a notice of appearance by cipline and decorum while assuring

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that relevant, reliable and probative (d) Files a withdrawal of his or her evidence is elicited on the issues in dis- Petition for a hearing with the Re- pute, but irrelevant, immaterial or rep- corder. etitious evidence is excluded; (f) Establishing the record in the § 961.11 Ex parte communications. case; Ex parte communications between a (g) Issuing the final decision orally or Hearing Official or his staff and a party in writing no later than sixty (60) days shall not be made. This prohibition after the filing of the employee’s hear- does not apply to procedural matters. ing Petition. When an oral decision is A memorandum of any communication rendered, a written confirmation will between the Hearing Official and a thereafter be sent to the parties. The party will be transmitted to both par- decision must include the determina- ties. tion of the amount and validity of the alleged debt and, where applicable, the PART 962—RULES OF PRACTICE IN repayment schedule. It should also in- PROCEEDINGS RELATIVE TO THE clude findings and reasons. PROGRAM FRAUD CIVIL REM- § 961.9 Effect of Hearing Official’s de- EDIES ACT cision; motion for reconsideration. The Hearing Official’s decision shall Sec. 962.1 Purpose. be the final administrative determina- 962.2 Definitions. tion on the employee’s debt or repay- 962.3 Petition for hearing. ment schedule. No reconsideration of 962.4 Referral of complaint. the decision will be allowed unless a 962.5 Scope of hearing; evidentiary stand- motion for reconsideration is filed by ard. either party within 10 days from re- 962.6 Notice of hearing. ceipt of the decision and shows good 962.7 Hearing location. reasons for reconsideration. Reconsid- 962.8 Rights of parties. 962.9 Responsibilities and authority of pre- eration will be allowed only in the dis- siding officer. cretion of the Hearing Official. A mo- 962.10 Prehearing conferences. tion for reconsideration by the em- 962.11 Respondent access to information. ployee will not operate to stay the col- 962.12 Depositions; interrogatories; admis- lection action authorized by the Hear- sion of facts; production and inspection ing Official’s decision. of documents. 962.13 Subpoenas. § 961.10 Waiver of employee rights. 962.14 Enforcement of subpoenas. 962.15 Sanctions. The Hearing Official may determine 962.16 Disqualification of reviewing official the employee has waived his or her or presiding official. right to a hearing and the employee’s 962.17 Ex parte communications. pay shall be offset in accordance with 962.18 Post-hearing briefs. the Postal Service’s offset schedule, if 962.19 Transcript of proceedings. the employee: 962.20 Initial decision. 962.21 Appeal of initial decision to judicial (a) Files a Petition for hearing after officer. the end of the 15-day period allowed by 962.22 Form and filing of documents. the Act for filing the Petition, and fails 962.23 Service of notice of hearing, other to demonstrate to the satisfaction of documents. the Hearing Official good cause for the 962.24 Computation of time. delay; 962.25 Continuances and extensions. (b) Has received notice to appear at 962.26 Settlement. 962.27 Limitations. an oral hearing but fails to do so without showing circumstances beyond the AUTHORITY: 31 U.S.C. Chapter 38; 39 U.S.C. employee’s control; 401. (c) Fails to file required submissions SOURCE: 52 FR 12904, Apr. 20, 1987, unless or to comply with orders of the Hear- otherwise noted. ing Official, and the failure makes it difficult or impossible to hold the hear- § 962.1 Purpose. ing or to issue the decision within the This part establishes the procedures statutory time; governing the hearing and appeal

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rights of any person alleged to be liable section 5376 of title 5 of the United for civil penalties and assessments States Code. under the Program Fraud Civil Rem- [52 FR 12904, Apr. 20, 1987, as amended at 63 edies Act of 1986 (codified at 31 U.S.C. FR 66053, Dec. 1, 1998; 67 FR 62179, Oct. 4, 3801–3812). 2002]

§ 962.2 Definitions. § 962.3 Petition for hearing. (a) Attorney refers to an individual Within 30 days of receiving the Post- authorized to practice law in any of the al Service’s Complaint, issued pursuant United States or the District of Colum- to § 273.8 of this title, alleging liability bia or a territory of the United States. under 31 U.S.C. 3802, the Respondent (b) Complaint refers to the adminis- may request a hearing under the Pro- trative Complaint served by the Re- gram Fraud Civil Remedies Act by fil- viewing Official on a Respondent pur- ing a written Hearing Petition with the suant to § 273.8 of this title. Recorder in accordance with § 962.22(b). (c) Initial Decision refers to the writ- The Respondent’s Petition must inten decision which the Presiding Offi- clude the following: cer is required by § 962.20 to render, and (a) The words ‘‘Petition for Hearing includes a revised initial decision Under the Program Fraud Civil Rem- issued following a remand. edies Act,’’ or other words reasonably (d) Investigating Official refers to the identifying it as such; Inspector General of the United States (b) The name of the Respondent as Postal Service or any designee within well as his or her work and home ad- the Office of the Inspector General. dresses, and work and home telephone numbers; or other address and tele- (e) Judicial Officer refers to the Judi- phone number where the Respondent cial Officer or Acting Judicial Officer may be contacted about the hearing of the United States Postal Service or proceedings; for purposes other than specified in § 962.21 any designee within the Judi- (c) A statement of the date the Re- spondent received the Complaint issued cial Officer Department. by the Reviewing Official; (f) Party refers to the Postal Service (d) A statement indicating whether or the Respondent. the Respondent requests an oral hear- (g) Person refers to any individual, ing or a decision on the record; partnership, corporation, association, (e) If the Respondent requests an oral or private organization. hearing, a statement proposing a city (h) Postmaster General refers to the for the hearing site, with justification Postmaster General of the United for holding the hearing in that city, as States or his designee. well as recommended dates for the (i) Presiding Officer refers to an Ad- hearing; and ministrative Law Judge designated by (f) A statement admitting or denying the Judicial Officer to conduct a hear- each of the allegations of liability ing authorized by 31 U.S.C. 3803. made in the Complaint, and stating (j) Recorder refers to the Recorder of any defense on which the Respondent the United States Postal Service, 2101 intends to rely. Wilson Boulevard, Suite 600, Arlington, VA 22201–3078. § 962.4 Referral of complaint. (k) Representative refers to an attor- (a) If the Respondent fails to request ney or other advocate. a hearing within the specified period, (l) Respondent refers to any person al- the Reviewing Official shall transmit leged to be liable for a civil penalty or the Complaint to the Judicial Officer assessment under 31 U.S.C. 3802. for referral to a Presiding Officer, who (m) Reviewing Official refers to the shall issue an initial decision based General Counsel of the Postal Service upon the information contained in the or any designee within the Law Depart- Complaint. ment who serves in a position for (b) If the Respondent files a Hearing which the rate of basic pay is not less Petition, the Reviewing Official, upon than the minimum rate payable under receiving a copy of the Petition, shall

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promptly transmit to the Presiding Of- (6) Such other information as the ficer a copy of the Postal Service’s Presiding Officer deems appropriate. Complaint. § 962.7 Hearing location. § 962.5 Scope of hearing; evidentiary An oral hearing under this part shall standard. be held (a) A hearing under this part shall be (a) In the judicial district of the conducted by the Presiding Officer on United States in which the Respondent the record (1) to determine whether the resides or transacts business; or Respondent is liable under 31 U.S.C. (b) In the judicial district of the 3802, and (2) if so, to determine the United States in which the claim or amount of any civil penalty or assess- statement upon which the allegation of ment to be imposed. liability under 31 U.S.C. 3802 was made, (b) The Postal Service must prove its presented, or submitted; or case against a Respondent by a prepon- (c) In such other place as may be derance of the evidence. agreed upon by the Respondent and the (c) The parties may offer at a hearing Presiding Officer. on the merits such relevant evidence as they deem appropriate and as would be § 962.8 Rights of parties. admissible under the generally accept- Any party to a hearing under this ed rules of evidence applied in the part shall have the right courts of the United States in nonjury (a) To be accompanied, represented, trials, subject, however, to the sound and advised, by a representative of his discretion of the Presiding Officer in own choosing; supervising the extent and manner of (b) To participate in any prehearing presentation of such evidence. In gen- or post-hearing conference held by the eral, admissibility will hinge on rel- Presiding Officer; evancy and materiality. However, rel- (c) To agree to stipulations of fact or evant evidence may be excluded if its law, which shall be made part of the probative value is substantially out- record; weighed by the danger of unfair preju- (d) To make opening and closing dice, or by considerations of undue statements at the hearing; delay, waste of time, or needless pres- (e) To present oral and documentary entation of cumulative evidence. evidence relevant to the issues at the hearing; § 962.6 Notice of hearing. (f) To submit rebuttal evidence; (g) To conduct such cross-examina- (a) Within a reasonable time after re- tion as may be required for a full and ceiving the Respondent’s Hearing Peti- true disclosure of the facts; and tion and the Complaint, the Presiding (h) To submit written briefs, pro- Officer shall serve, in accordance with posed findings of fact, and proposed § 962.23, upon the Respondent and the conclusions of law. Reviewing Official, a Notice of Hearing containing the information set forth in § 962.9 Responsibilities and authority paragraph (b) of this section. of presiding officer. (b) The Notice of Hearing required by (a) The Presiding Officer shall con- paragraph (a) of this section must in- duct a fair and impartial hearing, avoid clude: delay, maintain order, and assure that (1) The tentative hearing site, date, a record of the proceeding is made. and time; (b) The Presiding Officer’s authority (2) The legal authority and jurisdic- includes, but is not limited to, the fol- tion under which the hearing is to be lowing: held; (1) Establishing, upon adequate no- (3) The nature of the hearing; tice to all parties, the date and time of (4) The matters of fact and law to be the hearing, as well as, in accordance decided; with § 962.7, selecting the hearing site; (5) A description of the procedures (2) Holding conferences, by telephone governing the conduct of the hearing; or in person, to identify or simplify the and issues, or to consider other matters

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that may aid in the expeditious dis- (3) Stipulations or admissions of fact position of the proceeding; or as to the contents and authenticity (3) Continuing or recessing the hear- of documents; ing in whole or in part for a reasonable (4) Limitation of the number of wit- period of time; nesses; (4) Administering oaths and affirma- (5) Exchange of witness lists, copies tions to witnesses; of prior statements of witnesses, and (5) Issuing subpoenas, requiring the copies of hearing exhibits; attendance and testimony of witnesses (6) Scheduling dates for the exchange and the production of all information, of witness lists and of proposed exhib- documents, reports, answers, records, its; accounts, papers, and other data and (7) Discovery; documentary evidence which the Pre- (8) Possible changes in the scheduled siding Officer considers relevant and hearing date, time or site; and material to the hearing; (9) Any other matters related to the (6) Ruling on all offers, motions, re- proceeding. quests by the parties, and other proce- (b) Within a reasonable time after dural matters; the completion of a prehearing con- (7) Issuing any notices, orders, or ference, the Presiding Officer shall memoranda to the parties concerning issue an order detailing all matters the proceedings; agreed upon by the parties, or ordered (8) Regulating the scope and timing by the Presiding Officer, at such con- of discovery; ference. (9) Regulating the course of the hear- § 962.11 Respondent access to informa- ing and the conduct of the parties and tion. their representatives; (10) Examining witnesses; (a)(1) Except as provided in paragraph (a)(2) of this section, the Re- (11) Receiving, ruling on, excluding, spondent, at any time after receiving or limiting evidence in order to assure the Notice of Hearing required by that relevant, reliable and probative § 962.6, may review, and upon payment evidence is elicited on the issues in dis- of a duplication fee established under pute, but irrelevant, immaterial or rep- § 265.8(c) of this title, may obtain a etitious evidence is excluded; copy of, all relevant and material docu- (12) Deciding cases, upon motion of a ments, transcripts, records, and other party, in whole or in part by summary materials, which relate to the allega- judgment where there is no disputed tions of liability, and upon which the issue of material fact; findings and conclusions of the Inves- (13) Establishing the record in the tigating Official under § 273.5 of this case; and title are based. (14) Issuing a written initial decision (2) The Respondent is not entitled to containing findings of fact, conclusions review or obtain a copy of any docu- of law, and determinations with re- ment, transcript, record, or other ma- spect to whether a penalty or assess- terial which is privileged under Federal ment should be imposed, and if so, the law. amount of such penalty or assessment. (b) At any time after receiving the Notice of Hearing required by § 962.6, § 962.10 Prehearing conferences. the Respondent shall be entitled to ob- (a) At a reasonable time in advance tain all exculpatory information in the of the hearing, and with adequate no- possession of the Investigating Official tice to all parties, the Presiding Officer or the Reviewing Official relating to may conduct, in person or by tele- the allegations or liability under 31 phone, one or more prehearing con- U.S.C. 3802. Paragraph (a)(2) of this sec- ference to discuss the following: tion does not apply to any document, (1) Simplification of the issues; transcript, record, or other material, (2) The necessity or desirability of or any portion thereof, in which such amendments to the pleadings, includ- exculpatory information is contained. ing the need for a more definite state- (c) Requests to review or copy mate- ment; rial under this section must be directed

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to the Reviewing Official who must re- (c) Interrogatories to parties. After the spond within a reasonable time. issuance of a Notice of Hearing described in § 962.6, a party may serve on § 962.12 Depositions; interrogatories; the other party written interrogatories admission of facts; production and to be answered separately in writing, inspection of documents. signed under oath and returned within (a) General Policy and protective or- 30 days. Upon timely objection by the ders. The parties are encouraged to en- party, the Presiding Officer will deter- gage in voluntary discovery proce- mine the extent to which the interrog- dures. In connection with any dis- atories will be permitted. covery procedure permitted under this (d) Admission of facts. After the part, the Presiding Officer may issue issuance of a Notice of Hearing de- any order which justice requires to pro- scribed in § 962.6, a party may serve tect a party or person from annoyance, upon the other party a request for the embarrassment, oppression, or undue admission of specified facts. Within 30 burden or expense. Such orders may in- days after service, the party served clude limitations on the scope, method, shall answer each requested fact or file time and place for discovery, and provi- objections thereto. The factual propo- sions for protecting the secrecy of con- sitions set out in the request shall be fidential information or documents. deemed admitted upon the failure of a Each party shall bear its own expenses party to respond to the request for ad- relating to discovery. mission. (b) Depositions. (1) After the issuance (e) Production and inspection of docu- of a Notice of Hearing described in ments. Upon motion of any party show- § 962.6, the parties may mutually agree ing good cause therefor, and upon no- to, or the Presiding Officer may, upon tice, the Presiding Officer may order application of either party and for good the other party to produce and permit cause shown, order the taking of testi- the inspection and copying or mony of any person by deposition upon photographing of any designated docu- oral examination or written interrog- ments or objects, not privileged, spe- atories before any officer authorized to cifically identified, and their relevance administer oaths at the place of exam- and materiality to the cause or causes ination, for use as evidence or for pur- in issue explained, which are reason- poses of discovery. The application for ably calculated to lead to the discovery order shall specify whether the purpose or admissible evidence. If the parties of the deposition is discovery or for use cannot themselves agree thereon, the as evidence. Presiding Officer shall specify just (2) The time, place, and manner of terms and conditions in making the in- taking depositions shall be as mutually spection and taking the copies and pho- agreed by the parties, or failing such tographs. agreement, governed by order of the (f) Limitations. Under no cir- Presiding Officer. cumstances may a discovery procedure (3) No testimony taken by deposi- be used to reach tions shall be considered as part of the (1) Documents, transcripts, records, evidence in the hearing unless and or other material which a person is not until such testimony is offered and re- entitled to review pursuant to § 962.11; ceived in evidence at such hearing. (2) The notice sent to the Attorney Depositions will not ordinarily be re- General from the Reviewing Official ceived in evidence if the deponent is under § 273.6 of this title; or present and can testify personally at (3) Other documents which are privi- the hearing. In such instances, how- leged under Federal law. ever, the deposition may be used to [52 FR 12904, Apr. 20, 1987, as amended at 67 contradict or impeach the testimony of FR 62179, Oct. 4, 2002] the witness given at the hearing. In cases submitted for a decision on the § 962.13 Subpoenas. record, the Presiding Officer may, in (a) General. Upon written request of his discretion, receive depositions as either party filed with the Recorder or evidence in supplementation of that on his own initiative, the Presiding Of- record. ficer may issue a subpoena requiring:

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(1) Testimony at a deposition. The de- time after a copy has been served upon posing of a witness in the city or coun- the opposing party. ty where he resides or is employed or (e) Form; issuance. (1) Every subpoena transacts his business in person, or at shall state the title of the proceeding, another location convenient for him shall cite 31 U.S.C. 3804(b) as the au- that is specifically determined by the thority under which it is issued, and Presiding Officer; shall command each person to whom it (2) Testimony at a hearing. The attend- is directed to attend and give testi- ance of a witness for the purpose of mony, and if appropriate, to produce taking testimony at a hearing; and specified books and papers at a time (3) Production of books and papers. In and place therein specified. In issuing a addition to paragraphs (a)(1) and (a)(2) subpoena to a requesting party, the of this section, the production by the Presiding Officer shall sign the subpoena and may, in his discretion, enter witness at the deposition or hearing of the name of the witness and otherwise books and papers designated in the sub- leave it blank. The party to whom the poena. subpoena is issued shall complete the (b) Voluntary cooperation. Each party subpoena before service. is expected (1) to cooperate and make (2) Where the witness is located in a available witnesses and evidence under foreign country, a letter rogatory or its control as requested by the other subpoena may be issued and served party, without issuance of a subpoena, under the circumstances and in the and (2) to secure voluntary attendance manner provided in 28 U.S.C. 1781–1784. of desired third-party books, papers, (f) Service. (1) The party requesting documents, or other tangible things issuance of a subpoena shall arrange whenever possible. for service. (c) Requests for subpoenas. (1) A re- (2) A subpoena requiring the attend- quest for a subpoena shall normally be ance of a witness at a deposition or filed at least: hearing may be served at any place. A (i) 15 days before a scheduled deposi- subpoena may be served by a United tion where the attendance of a witness States marshal or deputy marshal, or at a deposition is sought; by any other person who is not a party (ii) 30 days before a scheduled hearing and not less than 18 years of age. Serv- where the attendance of a witness at a ice of a subpoena upon a person named hearing is sought. therein shall be made by personally de- (2) A request for a subpoena shall livering a copy to that person and ten- state the reasonable scope and general dering the fees for one day’s attend- relevance to the case of the testimony ance and the mileage provided by 28 and of any books, papers, documents, U.S.C. 1821 or other applicable law. or other tangible things sought. (3) The party at whose instance a (3) The Presiding Officer, in his dis- subpoena is issued shall be responsible cretion, may honor requests for sub- for the payment of fees and mileage of poenas not made within the time limi- the witness and of the officer who tations specified in this paragraph. serves the subpoena. The failure to (d) Requests to quash or modify. Upon make payment of such charges on de- written request by the person subpoe- mand may be deemed by the Presiding naed or by a party, made within 10 days Officer as sufficient ground for striking after service but in any event not later the testimony of the witness and the than the time specified in the subpoena evidence the witness has produced. for compliance, the Presiding Officer [52 FR 12904, Apr. 20, 1987, as amended at 67 may (1) quash or modify the subpoena FR 62179, Oct. 4, 2002] if it is unreasonable and oppressive or for other good cause shown, or (2) re- § 962.14 Enforcement of subpoenas. quire the person in whose behalf the In the case of contumacy or refusal subpoena was issued to advance the to obey a subpoena issued pursuant to reasonable cost of producing subpoe- §§ 962.9(b)(5) and 962.13, the district naed books and papers. Where cir- courts of the United States have juris- cumstances require, the Presiding Offi- diction to issue an appropriate order cer may act upon such a request at any for the enforcement of such subpoena.

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Any failure to obey such order of the report, or response which is not filed in court may be punishable as contempt. a timely fashion. In any case in which the Postal Service seeks the enforcement of a subpoena § 962.16 Disqualification of reviewing under this section, the Postal Service official or presiding official. shall request the Attorney General to If a Respondent believes, in good petition the district court for the dis- faith, that the Reviewing Official or trict in which a hearing under this part Presiding Officer should be disqualified is being conducted or in which the per- because of personal bias, or other reason receiving the subpoena resides or son, the Respondent may file a timely conducts business to issue such an and sufficient affidavit alleging such order. belief with supporting evidence. If the Presiding Officer finds that such alle- § 962.15 Sanctions. gations concerning the Reviewing Offi- (a) The Presiding Officer may sanc- cial are meritorious, he may direct the tion a person, including any party or Reviewing Official to disqualify him- representative, for self and request the appointment of a (1) Failing to comply with a lawful new Reviewing Official. Where a Re- order or prescribed procedure; spondent seeks the disqualification of a (2) Failing to prosecute or defend an Presiding Officer, such Presiding Offi- action; or cer, may, in his discretion, disqualify (3) Engaging in other misconduct himself at any time during the pro- that interferes with the speedy, or- ceeding. In the event a Reviewing Offi- derly, or fair conduct of the hearing. cial or Presiding Officer withdraws (b) Any such sanction, including but from a hearing, the proceeding shall be not limited to those listed in para- stayed until the assignment of a new graphs (c), (d), and (e) of this section, Reviewing Official or Presiding Officer. shall reasonably relate to the severity § 962.17 Ex parte communications. and nature of the failure or misconduct. Communications between a Presiding (c) Failure to comply with an order. Officer and a party shall not be made When a party fails to comply with an on any matter in issue unless on notice order, including an order for taking a and opportunity for all parties to par- deposition, the production of evidence ticipate. This prohibition does not within the party’s control, or a request apply to procedural matters. A memo- for admission, the Presiding Officer randum of any communication between may: the Presiding Officer and a party shall (1) Draw an inference in favor of the be transmitted by the Presiding Officer requesting party with regard to the in- to all parties. formation sought; (2) Prohibit such party from intro- § 962.18 Post-hearing briefs. ducing evidence concerning, or other- Post-hearing briefs and reply briefs wise relying upon, testimony relating may be submitted upon such terms as to the information sought; established by the Presiding Officer at (3) Permit the requesting party to in- the conclusion of the hearing. troduce secondary evidence concerning the information sought; and § 962.19 Transcript of proceedings. (4) Strike any part of the pleadings Testimony and argument at hearings or other submissions of the party fail- shall be reported verbatim, unless the ing to comply with such request. Presiding Officer orders otherwise. (d) Failure to prosecute or defend. If Transcripts or copies of the pro- a party fails to prosecute or defend an ceedings may be obtained by the par- action under this part commenced by ties at such rates as may be fixed by service of a Complaint, the Presiding contract between the reporter and the Officer may dismiss the action or enter Postal Service. an order of default. (e) Failure to make timely filing. § 962.20 Initial decision. The Presiding Officer may refuse to (a) After the conclusion of the hear- consider any motion or other pleading, ing, and the receipt of briefs, if any,

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from the parties, the Presiding Officer party demonstrates that the failure to shall issue a written initial decision, raise the objection before the Presiding including his or her findings and deter- Officer was caused by extraordinary minations. Such decision shall include circumstances. the findings of fact and conclusions of (4) If any party demonstrates to the law which the Presiding Officer relied satisfaction of the Judicial Officer that upon in determining whether the Re- additional evidence not presented at spondent is liable under 31 U.S.C. 3802, the hearing is material and that there and, if liability is found, shall set forth were reasonable grounds for the failure the amount of any penalties and as- to present such evidence, the Judicial sessments imposed. Officer shall remand the matter to the (b) The Presiding Officer shall Presiding Officer for consideration of promptly send to each party a copy of such additional evidence. his or her initial decision, and a state- (c) Decision of judicial officer. (1) The ment describing the right of any person Judicial Officer shall promptly serve determined to be liable under 31 U.S.C. each party to the appeal with a copy of 3802, to appeal, in accordance with his decision and a statement describing § 962.21, the decision of the Presiding the right to judicial review under 31 Officer to the Judicial Officer. U.S.C. 3805 of any Respondent deter- (c) Unless the Respondent appeals the mined to be liable under 31 U.S.C. 3802. Presiding Officer’s initial decision, (2) The decision of the Judicial Offi- such decision, including the findings cer constitutes final agency action and and determinations, is final. becomes final and binding on the parties 60 days after it is issued unless a § 962.21 Appeal of initial decision to petition for judicial review is filed. judicial officer. (a) Notice of appeal and supporting [52 FR 12904, Apr. 20, 1987, as amended at 67 brief. (1) A Respondent may appeal an FR 62179, Oct. 4, 2002] adverse initial decision by filing, with- § 962.22 Form and filing of documents. in 30 days after the Presiding Officer issues an initial decision, a Notice of (a) Every pleading filed in a pro- Appeal with the Recorder. The Judicial ceeding under this part must Officer may extend the filing period if (1) Contain a caption setting forth the Respondent files a request for an the title of the action, the docket num- extension within the initial 30-day pe- ber (after assignment by the Recorder), riod and demonstrates good cause for and a designation of the document such extension. (e.g., ‘‘Motion to Quash Subpoena’’); (2) The Respondent’s Notice of Ap- (2) Contain the name, address, and peal must be accompanied by a written telephone number of the party or other brief specifying the Respondent’s ex- person on whose behalf the paper was ceptions, and any reasons for such ex- filed, or the name, address and tele- ceptions, to the Presiding Officer’s ini- phone number of the representative tial decision. who prepared such paper; and (3) Within 30 days of receiving the (3) Be signed by the party or other Respondent’s brief, the Reviewing Offi- person submitting the document, or by cial may file with the Judicial Officer such party’s or person’s representative. a response to the Respondent’s speci- (b) The original and three copies of fied exceptions to the Presiding Offi- all pleadings and documents in a pro- cer’s initial decision. ceeding conducted under this part shall (b) Form of review. (1) Review by the be filed with the Recorder, Judicial Of- Judicial Officer will be based entirely ficer Department, United States Postal on the record and written submissions. Service, 2101 Wilson Boulevard, Suite (2) The Judicial Officer may affirm, 600, Arlington, VA 22201–3078. Normal reduce, reverse, or remand any penalty Recorder business hours are between or assessment determined by the Pre- 8:15 a.m. and 4:45 p.m., eastern standard siding Officer. or daylight saving time. The Recorder (3) The Judicial Officer shall not con- will transmit a copy of each document sider any objection that was not raised filed to the other party, and the origi- in the hearing unless the interested nal to the Presiding Officer.

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(c) Pleadings or document transmit- § 962.26 Settlement. tals to, or communications with, the (a) Either party may make offers of Postal Service, other than to the Re- settlement or proposals of adjustment corder under paragraph (b) of this sec- at any time. tion, shall be made through the Re- (b) The Reviewing Official has the ex- viewing Official or designated Postal clusive authority to compromise or Service attorney. If a notice of appear- settle any allegations or determina- ance by a representative is filed on be- tions of liability under 31 U.S.C. 3802 half of a Respondent, pleadings or doc- without the consent of the Presiding ument transmittals to, or communica- Officer, except during the pendency of tions with, the Respondent shall be an appeal to the appropriate United made through his representative. States district court pursuant to 31 U.S.C. 3805 or during the pendency of [52 FR 12904, Apr. 20, 1987, as amended at 63 an action to collect any penalties or FR 66053, Dec. 1, 1998] assessments pursuant to 31 U.S.C. 3806. § 962.23 Service of notice of hearing, (c) The Attorney General has the ex- other documents. clusive authority to compromise or settle any penalty or assessment the Unless otherwise specified, service of determination of which is the subject a Notice of Hearing or any other docu- of a pending petition for judicial re- ment under this part must be effected view, or a pending action to recover by registered or certified mail, return- such penalty or assessment. receipt requested, or by personal deliv- (d) The Reviewing Official may rec- ery. In the case of personal service, the ommend settlement terms to the At- person making service shall, if pos- torney General, as appropriate. sible, secure from the party or other [59 FR 51860, Oct. 13, 1994] person sought to be served, or his or her agent, a written acknowledgement § 962.27 Limitations. of receipt, showing the date and time A hearing under this part concerning of such receipt. If the person upon a claim or statement allegedly made, whom service is made declines to ac- presented, or submitted in violation of knowledge receipt, the person effecting 31 U.S.C. 3802 shall be commenced with- service shall execute a statement, indi- in six years after the date on which cating the time, place and manner of such claim or statement is made, pre- service, which shall constitute evi- sented, or submitted. dence of service.

§ 962.24 Computation of time. PART 963—RULES OF PRACTICE IN PROCEEDINGS RELATIVE TO VIO- (a) In computing any period of time provided for by this part, or any order LATIONS OF THE PANDERING AD- issued pursuant to this part, the time VERTISEMENTS STATUTE, 39 U.S.C. begins with the day following the act, 3008 event, or default, and includes the last day of the period, unless it is a Satur- Sec. day, Sunday, or legal holiday observed 963.1 Authority for the rules. 963.2 Scope of the rules. by the Federal Government, in which 963.3 Petition; notice of hearing; answer; fil- event it includes the next business day. ing and copies of documents; summary (b) When the applicable period of judgment. time is less than seven days, inter- 963.4 Presiding Officer. mediate Saturdays, Sundays, and legal 963.5 Appearances. 963.6 Computation of time. holidays observed by the Federal Gov- 963.7 Location of hearing. ernment shall be excluded from the 963.8 Change of place of hearing. computation. 963.9 Election as to hearing. 963.10 Continuances and extensions. § 962.25 Continuances and extensions. 963.11 Default. 963.12 Settlement agreements. Continuances and extensions may be 963.13 Subpoenas and witness fees not au- granted under these rules for good thorized. cause shown. 963.14 Discovery.

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963.15 Evidence. deposited in the U.S. mail on or before 963.16 Transcript. the 15th day. The Manager will forward 963.17 Proposed findings of fact and conclu- each timely petition to the Recorder, sions of law. 963.18 Initial decision. Judicial Officer Department, U.S. Post- 963.19 Appeal. al Service, 2101 Wilson Boulevard, 963.20 Final agency decision. Suite 600, Arlington, VA 22201–3078. 963.21 Official record. (b) Notice of hearing. Upon receiving a 963.22 Public information. petition, the Recorder shall schedule a AUTHORITY: 39 U.S.C. 204, 401, 3008. hearing for a date not later than 30 SOURCE: 52 FR 18912, May 20, 1987, unless days after the date of receipt, issue and otherwise noted. send a notice of hearing to the parties, and send a copy of the petition to the § 963.1 Authority for the rules. General Counsel of the U.S. Postal These rules of practice are issued by Service. the Judicial Officer of the U.S. Postal (c) Answer. The General Counsel shall Service pursuant to authority dele- file with the Recorder an answer to the gated by the Postmaster General (39 petition within 15 days after the date CFR 226.2(e)(1)). of receiving a copy thereof. A certified [52 FR 18912, May 20, 1987, as amended at 59 copy of the material documents from FR 10751, Mar. 8, 1994] the Manager’s case file (i.e., of the PS Forms 1500, Application for Listing and/ § 963.2 Scope of the rules. or Prohibitory Order, 2152, Prohibitory These rules of practice are applicable Order, and 2153, Complaint, underlying to cases in which the Prohibitory Order mail pieces, and pertinent return re- Processing Center Manager (herein- ceipts) shall be appended to the answer. after, ‘‘Manager’’) has issued a com- (d) Filing and copies of documents. plaint, pursuant to 39 U.S.C. 3008(d), al- With the exception of the initial peti- leging violation of a prohibitory order, tion, all documents shall be filed with and in which the alleged violator has the Recorder in triplicate at the ad- petitioned for a hearing in the matter. dress set forth above. The Recorder As provided in 39 U.S.C. 3008(h), sub- shall promptly provide copies to the chapter II of chapter 5 (relating to administrative procedure) and chapter 7 other party to the proceeding and to (relating to judicial review) of part I of the presiding officer. title 5, U.S.C., do not apply to the hear- (e) Summary Judgment. Upon motion ings authorized by 39 U.S.C. 3008(d). of either the General Counsel or the petitioner, or on his or her own initia- [52 FR 18912, May 20, 1987, as amended at 59 tive, the presiding officer may find FR 10751, Mar. 8, 1994, 62 FR 4459, Jan. 30, 1997] that the petition and answer present no genuine and material issues of fact re- § 963.3 Petition; notice of hearing; an- quiring an evidentiary hearing, and swer; filing and copies of docu- thereupon may render an initial deci- ments; summary judgment. sion upholding or dismissing the com- (a) Petition. Anyone against whom a plaint. The initial decision shall be- complaint has been issued pursuant to come the final agency decision if a 39 U.S.C 3008(d) may submit to the timely appeal is not taken. Manager a petition for hearing on the alleged violation. The petition must be [52 FR 18912, May 20, 1987; 52 FR 20599, June in writing, signed by the petitioner or 2, 1987, as amended at 59 FR 10752, Mar. 8, his or her attorney, and filed with the 1994; 62 FR 4459, Jan. 30, 1997; 63 FR 66053, Dec. 1, 1998] Manager on or before the 15th day after receipt of the complaint. The petition shall state the reasons why the petitioner believes the complaint to be erroneous. No petition received after the 15th day will be considered to have been filed on time, unless it was duly sent to the Manager via certified mail,

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§ 963.4 Presiding Officer. 3078, or other locations designated by the presiding officer. (a) The presiding officer shall be an Administrative Law Judge or an Ad- [63 FR 66053, Dec. 1, 1998] ministrative Judge qualified in accordance with law. The Judicial Officer as- § 963.8 Change of place of hearing. signs cases under this part. Judicial Of- Not later than the date fixed for the ficer includes Associate Judicial Offi- filing of the answer, a party may file a cer upon delegation thereto. The Judi- request that a hearing be held to re- cial Officer may, on his or her own ini- ceive evidence in his or her behalf at a tiative or for good cause found, preside place other than that designated for at the reception of evidence. hearing in the notice. The party shall (b) The presiding officer has author- support his or her request with a state- ity to: ment outlining: (1) Take such action as may be nec- (a) The evidence to be offered in such essary properly to preside over the pro- place; ceeding and render decision therein; (b) The names and addresses of the (2) Render an initial decision, if the witnesses who will testify; presiding officer is not the Judicial Of- (c) The reasons why such evidence ficer, which becomes the final agency decision unless a timely appeal is cannot be produced at Arlington, VA. taken; the Judicial Officer may issue a The presiding officer shall consider the tentative or a final decision. convenience and necessity of the parties and the relevance of the evidence [52 FR 18912, May 20, 1987, as amended at 62 to be offered. FR 4459, Jan. 30, 1997] [52 FR 18912, May 20, 1987, as amended at 62 § 963.5 Appearances. FR 4459, Jan. 30, 1997; 63 FR 66053, Dec. 1, 1998] (a) Petitioner. A petitioner may appear and be heard in person or by at- § 963.9 Election as to hearing. torney. An attorney may practice before the Postal Service in accordance If both parties elect, an oral hearing with applicable rules issued by the Ju- may be waived and the matter sub- dicial Officer (see Part 951 of this chap- mitted for decision on the basis of the ter). When a petitioner is represented petition and answer, and of any docu- by an attorney, all pleadings and other mentary evidence or briefs requested papers to be served on petitioner after by the presiding officer. The written entry of the attorney’s appearance election to waive oral hearing must be shall be mailed to the attorney. A peti- received by the Recorder no later than tioner must promptly file notice of any 10 days prior to the scheduled hearing change of attorney. date. (b) Postal Service. The Postal Service will be represented by its General § 963.10 Continuances and extensions. Counsel or any attorney designated by Continuances and extensions will be the General Counsel. granted by the presiding officer for good cause shown. § 963.6 Computation of time. A designated period of time under § 963.11 Default. these rules means calendar days, ex- If a petitioner, without notice or cludes the day the period begins, and cause satisfactory to the presiding offi- includes the last day of the period un- cer, fails to appear at the hearing or less the last day is a Saturday, Sunday, comply with any of the provisions of or legal holiday, in which case the pe- these rules or an order issued by the riod runs until the close of business on presiding officer, the petitioner may be the next business day. deemed to have abandoned his or her petition and to have acquiesced in the § 963.7 Location of hearing. allegations of the complaint. The pre- Hearings are held at 2101 Wilson Bou- siding officer thereupon may find the levard, Suite 600, Arlington, VA 22201– petitioner to be in default and refer the

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matter to the Judicial Officer for dis- such rate as may be fixed by contract missal of the petition. between the reporter and Postal Serv- ice. Any party desiring a copy of the [52 FR 18912, May 20, 1987, as amended at 62 FR 4459, Jan. 30, 1997] transcript shall order it from the contract reporter in a timely manner to § 963.12 Settlement agreements. avoid delay in filing briefs. These rules do not preclude the dis- § 963.17 Proposed findings of fact and position of any matter by agreement conclusions of law. between the parties at any stage of the proceeding. (a) Each party who participates in the hearing may, unless the presiding § 963.13 Subpoenas and witness fees officer orders otherwise, submit pro- not authorized. posed findings of fact, conclusions of The Postal Service is not authorized law, orders, and supporting reasons, ei- to issue subpoenas requiring the at- ther in writing or orally at the discre- tendance or testimony of witnesses, tion of the presiding officer. Unless nor to pay fees and expenses for a peti- given orally, the date set for filing of tioner’s witnesses or for depositions re- proposed findings of fact, conclusions quested by a petitioner. of law, orders, and supporting reasons shall be within 15 days after the deliv- § 963.14 Discovery. ery of the official transcript to the Re- Discovery is to be conducted on a corder, who shall notify both parties of voluntary basis to the extent possible. the date of its receipt. The filing date The presiding officer may, upon appli- for proposed findings of fact, conclu- cation of either party, order such dis- sions of law, orders, and supporting covery as he or she deems reasonable reasons shall be the same for both par- and necessary. Discovery may include ties. If not submitted by such date, un- one or more of the following: produc- less extension of time for the filing tion of documents, requests for admis- thereof is granted, they will not be in- sions, interrogatories, depositions, and cluded in the record or given consider- witness lists. The presiding officer will ation. establish the terms upon which re- (b) Except when presented orally be- quested discovery will be allowed. fore the close of the hearing, proposed findings of fact shall be set forth in se- [52 FR 18912, May 20, 1987, as amended at 62 rially numbered paragraphs and shall FR 4459, Jan. 30, 1997] state with particularity all evidentiary facts in the record with appropriate ci- § 963.15 Evidence. tations to the transcript or exhibits (a) In general, admissibility will supporting the proposed findings. Each hinge on relevancy and materiality. proposed conclusion shall be stated However, relevant evidence may be ex- separately. cluded if its probative value is substantially outweighed by the danger of un- [52 FR 18912, May 20, 1987; 52 FR 20599, June fair prejudice, or by considerations of 2, 1987] undue delay, waste of time, or needless § 963.18 Initial decision. presentation of cumulative evidence. (b) Testimony shall be given under Unless given orally at the conclusion oath or affirmation and witnesses are of the hearing, the presiding officer subject to cross-examination. shall render an initial decision as expe- (c) Agreed statements of fact are en- ditiously as practicable following the couraged and may be received in evi- conclusion of the hearing and the re- dence. ceipt of the proposed findings and conclusions, if any. The initial decision be- § 963.16 Transcript. comes the final agency decision if a Testimony and argument at hearings timely appeal is not taken. shall be reported verbatim, unless the presiding officer otherwise orders. § 963.19 Appeal. Transcripts or copies of the pro- Either party may file exceptions in a ceedings are supplied to the parties at brief on appeal to the Judicial Officer

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within 15 days after receipt of the ini- 964.13 Continuances and extensions. tial or tentative decision unless addi- 964.14 Proposed findings of fact and conclu- tional time is granted. A reply brief sions of law. may be filed within 15 days after the 964.15 Decisions. receipt of the appeal brief by the op- 964.16 Appeal. posing party. The Judicial Officer has 964.17 Final agency decision. all powers of a presiding officer and is 964.18 Compromise and informal disposition. authorized to decide all issues de novo. 964.19 Orders. 964.20 Modification or revocation of orders. § 963.20 Final agency decision. 964.21 Official record. 964.22 Public information. The Judicial Officer, or by delegation 964.23 Ex Parte communications. the Associate Judicial Officer, renders the final agency decision which will be AUTHORITY: 39 U.S.C. 204, 401, 3003, 3004. served upon the parties. If the decision SOURCE: 52 FR 36763, Oct. 1, 1987, unless is that the Postal Service’s prohibitory otherwise noted. order was violated, the Recorder shall provide a certified copy of the record § 964.1 Authority for rules. to the General Counsel for use in seek- These rules of practice are issued by ing court enforcement of the order. the Judicial Officer of the United States Postal Service pursuant to au- § 963.21 Official record. thority delegated by the Postmaster The transcript of testimony together General (39 CFR 224.1(c)(4)). with all pleadings, orders, exhibits, [52 FR 36763, Oct. 1, 1987, as amended at 67 FR briefs, and other documents filed in the 62179, Oct. 4, 2002] proceeding constitute the official record of the proceeding. § 964.2 Scope of rules. § 963.22 Public information. The rules in this part provide for administrative review of cases in which The Librarian of the Postal Service the Chief Postal Inspector or his dele- maintains for public inspection in the gate, acting pursuant to 39 U.S.C. Library copies of all initial, tentative, 3003(a), has withheld from delivery and final agency decisions and orders. mail which he believes is involved in a The Recorder maintains the complete scheme described in section 3003(a), and official record of every proceeding. cases in which the Chief Postal Inspec- [52 FR 18912, May 20, 1987, as amended at 63 tor or his delegate, acting pursuant to FR 66053, Dec. 1, 1998] 39 U.S.C. 3004, determines that letters or parcels sent in the mail are ad- PART 964—RULES OF PRACTICE dressed to places not the residence or GOVERNING DISPOSITION OF regular business address of the person MAIL WITHHELD FROM DELIVERY for whom they are intended to enable PURSUANT TO 39 U.S.C. 3003, the person to escape identification. 3004 [52 FR 36763, Oct. 1, 1987, as amended at 67 FR 62179, Oct. 4, 2002] Sec. 964.1 Authority for rules. § 964.3 Customer petitions; notice of 964.2 Scope of rules. hearing; answer; summary judg- 964.3 Customer petitions; notice of hearing; ment. answer; summary judgment. 964.4 Hearings. (a) Petition. Any addressee who re- 964.5 Election as to hearing. ceives notice from the Chief Postal In- 964.6 Default. spector or his delegate that his mail 964.7 Presiding officers. has been withheld pursuant to 39 U.S.C. 964.8 Subpoenas and witness fees not au- 3003(a) or 3004 may oppose such action thorized. by filing with the Judicial Officer a 964.9 Discovery; interrogatories; admission written Petition stating the reasons of facts; production; and inspection of documents. for his or her opposition. The Petition, 964.10 Evidence. signed by the Petitioner or his attor- 964.11 Transcript. ney, shall be filed by sending the Peti- 964.12 Computation of time. tion via certified mail to the Recorder,

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Judicial Officer Department, U.S. Post- § 964.4 Hearings. al Service, 2101 Wilson Boulevard, Hearings are held at 2101 Wilson Bou- Suite 600, Arlington, VA 22201–3078. The levard, Suite 600, Arlington, VA 22201– Petition must be postmarked within 14 3078, or other locations designated by days of the date upon which the Peti- the presiding officer. Not later than 10 tioner received the notice. The failure days prior to the date fixed for the of an addressee who has received notice hearing, a party may file a request of withheld mail to file a Petition op- that a hearing be held to receive evi- posing such action with the Judicial dence in his behalf at a place other Officer shall constitute a waiver of than that designated for hearing in the hearing and further procedural steps by notice. He shall support his request the addressee. The Chief Postal Inspec- with a statement outlining: tor or his or her designee of the Postal (a) The evidence to be offered in such Service shall thereupon file the matter place; with the Judicial Officer for issuance (b) The names and addresses of the of a final order pursuant to § 964.19. witnesses who will testify; and Such referral shall contain a statement (c) The reasons why such evidence of the basis for the detention, evidence cannot be produced at Arlington, VA. that the notice of the detention and The presiding officer shall give consideration to the convenience and ne- the addressee’s right to petition for re- cessity of the parties and the relevance view under this part were served on the of the evidence to be offered addressee in person or by mailing a copy to the address to which the de- [52 FR 36763, Oct. 1, 1987, as amended at 63 FR tained mail is directed, the date of 66053, Dec. 1, 1998] such service, and a copy of the pro- § 964.5 Election as to hearing. posed order sought by the Chief Postal Inspector or his or her designee. If both parties elect, they may waive (b) Notice of hearing. On receipt of the an oral hearing and submit the matter Petition, the Recorder shall schedule a for decision on the basis of the Petition hearing on a date not later than 28 and Answer, subject to the authority of the presiding officer to require the par- days after the date of receipt. A Notice ties to furnish such further evidence or of Hearing shall be sent to the Peti- such briefs as necessary. The request to tioner. A copy of the Notice of Hearing waive oral hearing should be filed not and the Petition shall be sent to the later than 10 days prior to the date set Chief Postal Inspector or his or her for hearing. designee of the U.S. Postal Service. (c) Answer. The Chief Postal Inspec- § 964.6 Default. tor or his or her designee of the Postal If a Petitioner fails to appear at the Service shall file an Answer to the Pe- hearing without notice or without ade- tition within 10 days of receipt of the quate cause the presiding officer may Petition from the Recorder. issue an order dismissing the Petition (d) Summary judgment. Upon motion and refer the matter to the Judicial Of- of either the Chief Postal Inspector or ficer for issuance of the order provided his or her designee or the Petitioner, or for under § 964.19. An order of dismissal upon his own initiative, the presiding issued under this section may be ap- officer may find that the Petition and pealed to the Judicial Officer within 10 Answer present no material issues of days from the date of the order. fact requiring an evidentiary hearing [52 FR 36763, Oct. 1, 1987, as amended at 53 FR and thereupon may render an initial 4849, Feb. 18, 1988] decision granting or dismissing the Pe- tition. The initial decision shall be- § 964.7 Presiding officers. come the final agency decision if a (a) The presiding officer shall be an timely appeal is not taken pursuant to Administrative Law Judge qualified in § 964.16 of this part. accordance with law. The Judicial Offi- [52 FR 36763, Oct. 1, 1987, as amended at 53 FR cer shall assign cases upon rotation as 4849, Feb. 18, 1988; 63 FR 66053, Dec. 1, 1998; 71 far as practicable. The Judicial Officer FR 53972, Sept. 13, 2006] may on his own initiative or for good

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cause shown, preside at the reception time and place for discovery, and provi- of evidence. sions for protecting confidential infor- (b) The presiding officer has author- mation or documents from unwar- ity to: ranted public disclosure. Each party (1) Administer oaths and affirma- shall bear its own expenses relating to tions; discovery. (2) Examine witnesses; (b) Depositions. (1) After the issuance (3) Rule upon offers of proof, admissi- of a notice of hearing described in bility of evidence and matters of proce- § 964.3 of this part, the parties may mu- dure; tually agree to, or the presiding officer (4) Order any pleadings amended may, upon application of either party upon motion of a party at any time and for good cause shown, order the prior to the close of the hearing; taking of testimony of any person by (5) Maintain discipline and decorum deposition upon oral examination or and exclude from the hearing any per- written interrogatories before any offi- son acting in an indecorous manner; cer authorized to administer oaths at (6) Require the filing of briefs or the place of examination, for use as memoranda of law on any matter upon evidence or for purposes of discovery. which he is required to rule; The application for order shall specify (7) Order prehearing conferences for whether the purpose of the deposition the purpose of the settlement or sim- is discovery or for use as evidence, or plification of issues by the parties or both. for any other purpose he believes will (2) The time, place, and manner of facilitate the processing of the pro- taking depositions shall be as mutually ceeding; agreed by the parties, or failing such (8) Order the proceeding reopened at agreement, governed by order of the any time prior to his decision for the presiding officer. receipt of additional evidence; (3) No testimony taken by deposi- (9) Render an initial decision, which tions shall be considered as part of the becomes the final agency decision un- evidence in the hearing unless and less a timely appeal is taken: The Judi- until such testimony is offered and re- cial Officer may issue a tentative or a ceived in evidence at such hearing. final decision; Depositions will not ordinarily be re- (10) Rule upon applications and received in evidence if the deponent is quests filed under § 964.9 of this part. present and can testify personally at § 964.8 Subpoenas and witness fees not the hearing. In such instances, how- authorized. ever, the deposition may be used to contradict or impeach the testimony of The Postal Service is not authorized the witness given at the hearing. In to issue subpoenas requiring the attendance or testimony of witnesses, cases submitted on the record, the pre- nor to pay fees and expenses for a Peti- siding officer may, in his discretion, re- tioner’s witnesses or for depositions receive depositions as evidence in sup- quested by a Petitioner. plementation of the record. (c) Interrogatories to parties. Not later § 964.9 Discovery; interrogatories; ad- than 5 days after the filing of the An- mission of facts; production and in- swer described in § 964.3, a party may spection of documents. serve on the other party written inter- (a) General policy and protective orders. rogatories to be answered separately in The parties are encouraged to engage writing, signed under oath and re- in voluntary discovery procedures. In turned within 10 days. Upon timely ob- connection with any discovery proce- jection by the party, the presiding offi- dure permitted under this part, the cer will determine the extent to which presiding officer may issue any order the interrogatories will be permitted. which justice requires to protect a (d) Admission of facts. Not later than party or person from annoyance, em- 5 days after the filing of the Answer de- barrassment, oppression, or undue bur- scribed in § 964.3, a party may serve den or expense. Such orders may in- upon the other party a request for the clude limitations on the scope, method, admission of specified facts. Within 10

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days after receipt of the request for ad- includes the last day of the period un- missions, the party served shall admit less the last day is a Saturday, Sunday, or answer each specified fact or file ob- or legal holiday, in which case the pe- jections thereto. Any factual propo- riod runs until the close of business on sitions set out in the request to which the next business day. a party fails to respond shall be deemed admitted. § 964.13 Continuances and extensions. (e) Production and inspection of docu- Continuances and extensions will be Upon motion of any party show- ments. granted by the presiding officer for ing good cause therefor, and upon no- good cause shown. tice, the presiding officer may order the other party to produce and permit § 964.14 Proposed findings of fact and the inspection and copying or conclusions of law. photographing of any designated documents and or objects, provided that (a) Each party to a proceeding, ex- such documents and objects are not cept one who fails to answer the Peti- privileged, their relevance to the cause tion or, having answered, either fails to or causes in issue is explained, and appear at the hearing or indicates in they are reasonably calculated to lead the answer that he does not desire to to the discovery of admissible evi- appear, may, unless at the discretion of dence. If the parties cannot themselves the presiding officer such is not appro- agree thereon, the presiding officer priate, submit proposed findings of shall specify the terms and conditions fact, conclusions of law, orders and for making the inspection and taking supporting reasons either in oral or the copies and photographs. written form in the discretion of the presiding officer. The presiding officer § 964.10 Evidence. may also require parties to submit pro- (a) In general, admissibility will posed findings of fact, conclusions of hinge on relevancy and materiality. law, orders, and supporting reasons. However, relevant evidence may be ex- Unless given orally, the date set for fil- cluded if its probative value is substan- ing of proposed findings of fact, conclu- tially outweighed by the danger of un- sions of law, orders and supporting rea- fair prejudice, or by considerations of sons shall be within 15 days after the undue delay, waste of time, or needless delivery of the official transcript to presentation of cumulative evidence. the Recorder who shall notify both par- (b) Testimony shall be given under ties of the date of its receipt. The filing oath or affirmation and witnesses shall date for proposed findings of fact, con- be subject to cross-examination. clusions of law, orders and supporting (c) Agreed statements of fact are en- reasons shall be the same for both par- couraged and may be received in evi- ties. If not submitted by such date, un- dence. less extension of time for the filing thereof is granted, they will not be in- § 964.11 Transcript. cluded in the record or given consider- Testimony and argument at hearings ation. shall be reported verbatim, unless the (b) Except when presented orally be- presiding officer orders otherwise. fore the close of the hearing, proposed Transcripts or copies of the pro- findings of fact shall be set forth in se- ceedings are supplied to the parties at rially numbered paragraphs and shall such rate as may be fixed by contract state with particularity all evidentiary between the reporter and Postal Serv- facts in the record with appropriate ci- ice. Any party desiring a copy of the tations to the transcript or exhibits transcript shall order it from the con- supporting the proposed finding. Each tract reporter in a timely manner to proposed conclusion shall be separately avoid delay in filing briefs. stated.

§ 964.12 Computation of time. § 964.15 Decisions. A designated period of time under (a) Initial decision by Administrative these rules means calendar days, ex- Law Judge. A written initial decision cludes the day the period begins, and shall be rendered by an Administrative

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Law Judge with all due speed. The ini- record and the legal or other authori- tial decision shall include findings and ties relied upon. conclusions with the reasons therefor upon all the material issues of fact or § 964.17 Final agency decision. law presented in the record, and the ap- The Judicial Officer renders the final propriate orders or denial thereof. The agency decision and order which will be initial decision shall become the final served upon the parties and upon the agency decision unless an appeal is postmaster at the office where the mail taken in accordance with § 964.16. at issue is being held. (b) Tentative or final decision by the [52 FR 36763, Oct. 1, 1987, as amended at 53 FR Judicial Officer. When the Judicial Offi- 4849, Feb. 18, 1988] cer presides at the hearing he shall issue a final or a tentative decision. § 964.18 Compromise and informal dis- Such decision shall include findings position. and conclusions with the reasons there- Nothing in these rules precludes the for upon all the material issues of fact compromise, settlement, and informal or law presented in the record, and the disposition of proceedings initiated appropriate orders or denial thereof. under these rules at any time prior to The tentative decision shall become the issuance of the final agency deci- the final agency decision unless excep- sion. tions are filed in accordance with § 964.16. § 964.19 Orders. If an order is issued by the Judicial § 964.16 Appeal. Officer which prohibits delivery of mail (a) Either party may file exceptions to a Petitioner it shall be incorporated in a brief on appeal to the Judicial Of- in the record of the proceeding. The ficer within 15 days after receipt of the Recorder shall cause notice of the initial or tentative decision unless ad- order to be published in the Postal Bul- ditional time is granted. A reply brief letin and cause the order to be trans- may be filed within 15 days after remitted to such postmasters and other ceipt of the appeal brief by the oppos- officers and employees of the Postal ing party. The Judicial Officer has all Service as may be required to place the powers of a presiding officer and is au- order into effect. thorized to decide all issues de novo. [52 FR 36763, Oct. 1, 1987, as amended at 53 FR (b) Briefs upon appeal or in support 4849, Feb. 18, 1988] of exceptions to a tentative decision by the Judicial Officer and replies thereto § 964.20 Modification or revocation of shall be filed in triplicate with the Re- orders. corder and contain the following mat- A party against whom an order or or- ter in the order indicated: ders have been issued may file an appli- (1) A subject index of the matters cation for modification or revocation presented, with page references; a table thereof. The Recorder shall transmit a of cases alphabetically arranged; a list copy of the application to the Chief of statutes and texts cited with page Postal Inspector or his or her designee, references. who shall file a written reply within 10 (2) A concise abstract or statement of days after receipt or such other period the case in briefs on appeal or in sup- as the Judicial Officer may fix. A copy port of exceptions. of the reply shall be sent to the appli- (3) Numbered exceptions to specific cant by the Recorder. Thereafter an findings and conclusions of fact, con- order granting or denying such applica- clusions of law, or recommended orders tion will be issued by the Judicial Offi- of the presiding officer in briefs on ap- cer. peal or in support of exceptions. [52 FR 36763, Oct. 1, 1987, as amended at 71 FR (4) A concise argument clearly set- 53972, Sept. 13, 2006] ting forth points of fact and of law relied upon in support of or in opposition § 964.21 Official record. to each exception taken, together with The transcript of testimony together specific references to the parts of the with all pleadings, orders, exhibits,

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briefs, and other documents filed in the § 965.3 Notice to parties. proceeding constitute the official Upon receipt of a mail dispute case, record of the proceeding. the Recorder, Office of the Judicial Of- § 964.22 Public information. ficer, United States Postal Service, 2101 Wilson Boulevard, Suite 600, Ar- The Librarian of the Postal Service maintains for public inspection in the lington, VA 22201–3078, will send a no- Library copies of all initial, tentative, tice of docketing and submission due and final agency decisions and orders. date to the parties together with a The Recorder maintains the complete copy of these rules. official record of every proceeding. [76 FR 15219, Mar. 21, 2011] [52 FR 36763, Oct. 1, 1987, as amended at 63 FR 66053, Dec. 1, 1998] § 965.4 Presiding officers. (a) The presiding officer shall be an § 964.23 Ex parte communications. Administrative Law Judge, an Admin- The provisions of 5 U.S.C. 551(14), istrative Judge qualified in accordance 556(d), and 557(d) prohibiting ex parte with law, or any other qualified person communications are made applicable licensed to practice law designated by to proceedings under these rules of the Judicial Officer to preside over a practice. proceeding conducted pursuant to this part. The Judicial Officer assigns cases PART 965—RULES OF PRACTICE IN under this part. Judicial Officer in- PROCEEDINGS RELATIVE TO MAIL cludes Associate Judicial Officer upon DISPUTES delegation thereto. The Judicial Offi- cer may, on his or her own initiative or Sec. for good cause found, preside at the re- 965.1 Authority for rules. ception of evidence. 965.2 Scope of rules. (b) The presiding officer has author- 965.3 Notice to parties. ity to: 965.4 Presiding officers. 965.5 Initial submissions by parties. (1) Take such action as may be nec- 965.6 Comments by parties. essary to preside properly over the pro- 965.7 Default. ceeding and render decision therein; 965.8 Hearings. (2) Render an initial decision, if the 965.9 Evidence. presiding officer is not the Judicial Of- 965.10 Transcript. 965.11 Initial decision. ficer; or if the presiding officer is the 965.12 Appeal. Judicial Officer, issue a tentative or a 965.13 Compromise and informal disposition. final decision or order. 965.14 Public information. [52 FR 29012, Aug. 5, 1987, as amended at 75 AUTHORITY: 39 U.S.C. 204, 401. FR 6570, Feb. 10, 2010; 76 FR 15219, Mar. 21, SOURCE: 52 FR 29012, Aug. 5, 1987, unless 2011] otherwise noted. § 965.5 Initial submissions by parties. § 965.1 Authority for rules. Within 15 days after receipt of the These rules of practice are issued by Recorder’s notice, each party shall file the Judicial Officer of the U.S. Postal with the Recorder a sworn statement Service pursuant to authority dele- of the facts supporting its claim to re- gated by the Postmaster General. ceipt of the mail together with a copy [76 FR 15219, Mar. 21, 2011] of each document on which it relies in making such claim, and any arguments § 965.2 Scope of rules. supporting its claim. The rules in this part shall be appli- [76 FR 15219, Mar. 21, 2011] cable to mail dispute cases forwarded to the Judicial Officer pursuant to § 965.6 Comments by parties. Postal Operations Manual section Within 10 days of receipt of the other 616.21. party’s initial submission under § 965.5, [76 FR 15219, Mar. 21, 2011] each party may file with the Recorder

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an additional statement or rebuttal ar- § 965.11 Initial decision. gument setting forth in detail its dis- The presiding officer shall render an agreements, if any, with its opponent’s initial decision in writing, based on the initial submission. Such rebuttal may record, as expeditiously as possible, but include any additional documents rel- to the extent practicable within 10 evant to the dispute. working days of closing of the record. [76 FR 15219, Mar. 21, 2011] The decision will be brief, containing summary findings of fact, conclusions § 965.7 Default. of law, and reasons therefor. If there has been a hearing the presiding officer A party who fails to file the sub- may in his discretion render an oral de- mittal required by § 965.5 may be held cision. A typed copy of such oral deci- in default and the presiding officer may sion will subsequently be furnished to issue an initial decision that mail be the parties to establish the date for delivered to the other party. commencement of time for requesting § 965.8 Hearings. review of the initial decision. (a) Generally, mail dispute cases are § 965.12 Appeal. resolved based on written submissions. Within 10 days after receipt by the However, in the discretion of the pre- parties of the initial or tentative deci- siding officer an oral hearing may be sion, either party may file an appeal to conducted where in the opinion of the the Judicial Officer. The Judicial Offi- presiding officer, the case cannot be re- cer, or by delegation the Associate Ju- solved by a review of the documentary dicial Officer, in his or her sole discre- evidence. tion, also may review the initial or (b) Hearings are held at 2101 Wilson tentative decision on his or her own Boulevard, Suite 600, Arlington, VA initiative. If an appeal is denied, the 22201–3078, or such other place as may initial or tentative decision becomes be designated by the presiding officer. the final agency decision upon the issuance of such denial. If an appeal is [52 FR 29012, Aug. 5, 1987, as amended at 63 FR 66053, Dec. 1, 1998; 76 FR 15219, Mar. 21, not filed and the Judicial Officer, or by 2011] delegation the Associate Judicial Offi- cer does not review the initial or ten- § 965.9 Evidence. tative decision on his or her own initiative, a final order will be issued. The (a) In general, admissibility will Judicial Officer’s decision on appeal or hinge on relevancy and materiality. his or her final order is the final agen- However, relevant evidence may be ex- cy decision with no further agency re- cluded if its probative value is substan- view or appeal rights. tially outweighed by the danger of unfair prejudice, or by considerations of [76 FR 15219, Mar. 21, 2011] undue delay, waste of time, or needless presentation of cumulative evidence. § 965.13 Compromise and informal disposition. (b) Testimony shall be given under oath or affirmation and witnesses are Nothing in these rules precludes the subject to cross-examination. compromise, settlement, and informal disposition of proceedings initiated [52 FR 29012, Aug. 5, 1987, as amended at 76 under these rules at any time prior to FR 15219, Mar. 21, 2011] the issuance of the final agency decision. § 965.10 Transcript. Testimony and argument at hearings § 965.14 Public information. shall be reported verbatim, unless the The Librarian of the Postal Service presiding officer otherwise orders. maintains for public inspection in the Transcripts or copies of the pro- Library copies of all initial, tentative, ceedings are supplied to the parties at and final agency decisions and orders. such rate as may be fixed by contract Copies of decisions also are available between the reporter and Postal Serv- on the Judicial Officer’s section of the ice. official Web site of the U.S. Postal

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Service. The Recorder maintains the be owed by the former employee to the complete official record of every pro- Postal Service. ceeding. (b) Debt refers to any amount determined by the Postal Service to be owed [76 FR 15219, Mar. 21, 2011] to the Postal Service by a former employee. PART 966—RULES OF PRACTICE IN (c) Former employee refers to an indi- PROCEEDINGS RELATIVE TO AD- vidual whose employment with the MINISTRATIVE OFFSETS INITIATED Postal Service has ceased. An em- AGAINST FORMER EMPLOYEES ployee is considered formally separated OF THE POSTAL SERVICE from the Postal Service rolls as of close of business on the effective date Sec. of his or her separation. Postal Service 966.1 Authority for rules. Form 50. 966.2 Scope of rules. (d) General Counsel refers to the Gen- 966.3 Definitions. eral Counsel of the Postal Service, and 966.4 Petition for a hearing and supplement includes a designated representative. to petition. 966.5 Effect of petition filing. (e) Hearing Official refers to an Ad- 966.6 Filing, docketing and serving docu- ministrative Law Judge qualified to ments; computation of time; representa- hear cases under the Administrative tion of parties. Procedure Act, an Administrative 966.7 Answer to petition. Judge appointed under the Contract 966.8 Authority and responsibilities of Hear- Disputes Act of 1978, or any other ing Official or Judicial Officer. qualified person licensed to practice 966.9 Opportunity for oral hearing. law designated by the Judicial Officer 966.10 Initial decision. 966.11 Appeal. to preside over a hearing conducted 966.12 Waiver of rights. pursuant to this part. 966.13 Ex parte communications. (f) Judicial Officer refers to the Judi- cial Officer, Associate Judicial Officer, AUTHORITY: 39 U.S.C. 204, 401, 2601. or Acting Judicial Officer of the Postal SOURCE: 62 FR 63279, Nov. 28, 1997, unless Service. otherwise noted. (g) Postmaster/Installation Head refers to the top management official at a § 966.1 Authority for rules. particular post office or installation These rules of practice are issued by when an alleged debt owed by a former the Judicial Officer pursuant to au- employee was incurred, or to that offi- thority delegated by the Postmaster cial’s successor, or to the department General. head who had general supervisory responsibility for a former employee at § 966.2 Scope of rules. Area Offices or National Headquarters The rules in this part apply to any when an alleged debt owed by that petition filed by a former postal em- former employee was incurred, or to ployee: that official’s successor. Where the (a) To challenge the Postal Service’s former employee was a Postmaster/In- determination that he or she is liable stallation Head, the term refers to the to the Postal Service for a debt in- official to whom the Postmaster/Instal- curred in connection with his or her lation Head reported when an alleged Postal Service employment; and/or debt owed by that former employee was (b) To challenge the administrative incurred, or to that official’s successor. offset schedule proposed by the Postal Where the former employee was in the Service for collecting any such debt. Inspection Service, the term refers to the former employee’s immediate su- § 966.3 Definitions. pervisor when an alleged debt owed by (a) Administrative offset refers to the that former employee was incurred, or withholding of money payable by the to that official’s successor. Where the Postal Service or the United States to, former employee was in the Office of or held by the Postal Service or the Inspector General, the term refers to United States for, a former employee the Inspector General, or to the Inspec- in order to satisfy a debt determined to tor General’s delegate.

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(h) Reconsideration refers to the re- (4) A statement of the date the view of an alleged debt and/or the pro- former employee received the Post- posed offset schedule conducted by the master/Installation Head’s written de- Postmaster/Installation Head at the re- cision upon reconsideration of the al- quest of a former employee alleged to leged debt, and a copy of the decision; be indebted to the Postal Service. (5) A statement indicating whether (i) Recorder refers to the Recorder, the former employee requests an oral Judicial Officer Department, United hearing or a decision based solely on States Postal Service, 2101 Wilson Bou- written submissions; levard, Suite 600, Arlington, VA 22201– (6) If the former employee requests 3078. an oral hearing, a statement describing [62 FR 63279, Nov. 28, 1997, as amended at 63 the evidence he or she will produce FR 66053, Dec. 1, 1998] which makes an oral hearing necessary, including a list of witnesses, § 966.4 Petition for a hearing and sup- with their addresses, whom the former plement to petition. employee expects to call; a summary of (a) A former employee who is alleged the testimony the witnesses are ex- to be responsible for a debt to the Post- pected to present; the city requested al Service may petition for a hearing for the hearing site, with justification under this part, provided: for holding the hearing in that city; (1) Liability for the debt and/or the and at least three proposed dates for proposed offset schedule has not been the hearing at least forty-five (45) days established under Part 452.3 or Part after the filing of the petition; 462.3 of the Employee & Labor Rela- (7) A statement of the grounds upon tions Manual; (2) He or she has received a Notice which the former employee objects to from the Minneapolis Accounting Serv- the Postal Service’s determination of ice Center (or its successor installa- the debt or to the administrative offset tion) informing him or her of the debt schedule proposed by the Postal Serv- and an offset schedule to satisfy the ice for collecting any such debt. This debt and of the right to request recon- statement should identify with reason- sideration by the Postmaster/Installa- able specificity and brevity the facts, tion Head; and evidence, and legal arguments, if any, (3) He or she has requested and re- which support the former employee’s ceived reconsideration of the existence position; and or amount of the alleged debt and/or (8) Copies of all records in the former the offset schedule proposed by the employee’s possession which relate to Postal Service. the debt and which the former em- (b) Within thirty (30) calendar days ployee may enter into the record of the after the date of receipt of the Post- hearing. master/Installation Head’s written de- (d) The former employee may, if nec- cision upon reconsideration, the former essary, file with the Recorder addi- employee must file a written, signed tional information as a supplement to petition, requesting a written or oral the petition at any time prior to the hearing, with the Recorder, Judicial filing of the answer to the petition Officer Department, United States under § 966.7, or at such later time as Postal Service, 2101 Wilson Boulevard, permitted by the Hearing Official upon Suite 600, Arlington, VA 22201–3078. a showing of good cause. (c) The petition must include the following: [62 FR 63279, Nov. 28, 1997, as amended at 63 (1) The words, ‘‘Petition for Review FR 66053, Dec. 1, 1998] Under 39 CFR Part 966’’; § 966.5 Effect of petition filing. (2) The former employee’s name and social security number; Upon receipt and docketing of the (3) The former employee’s home ad- former employee’s petition, the Re- dress and telephone number, and any corder will notify the General Counsel other address and telephone number at that the petition has been filed and which the former employee may be that a timely filed petition stays fur- contacted about these proceedings; ther collection action.

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§ 966.6 Filing, docketing and serving former employee requests one, with the documents; computation of time; reason(s) for the Postal Service’s objec- representation of parties. tion; a list of witnesses the Postal (a) Filing. All documents required Service intends to call if an oral hear- under this part must be filed by the ing is requested and the request is former employee or the General Coun- granted; a synopsis of the testimony of sel in triplicate with the Recorder. each witness; a statement of concur- (Normal Recorder office business hours rence or objection to the proposed loca- are between 8:15 a.m. and 4:45 p.m., tion and dates for the oral hearing; and eastern standard or daylight saving a statement of the basis for the deter- time as appropriate during the year.) mination of debt or offset schedule if The Recorder will transmit a copy of not contained in the relevant records each document filed to the other party, or documents. If the former employee and the original to the Hearing Offi- files a supplement to the petition, the cial. General Counsel may file any supple- (b) Docketing. The Recorder will mental answer and records to support maintain a docket record of pro- the position of the Postal Service with- ceedings under this part and will assign in twenty (20) calendar days from the each petition a docket number. After notification of the docket number, the date of receipt of the supplement filed former employee and General Counsel with the Recorder. should refer to it on any further filings § 966.8 Authority and responsibilities regarding the petition. of Hearing Official or Judicial Offi- (c) Time computation. A filing period cer. under the rules in this part excludes the day the period begins, and includes (a) In processing a case under this the last day of the period unless the part, the Hearing Official’s authority last day is a Saturday, Sunday, or legal includes, but is not limited to, the fol- holiday, in which event the period runs lowing: until the close of business on the next (1) Ruling on all offers, motions, or business day. requests by the parties; (d) Representation of parties. After the (2) Issuing any notices, orders, or filing of the petition, further document memoranda to the parties concerning transmittals for, or communications the hearing procedures; with, the Postal Service shall be (3) Conducting telephone conferences through its representative, the General with the parties to expedite the pro- Counsel. If a former employee is rep- ceedings (a memorandum of a tele- resented by an attorney authorized to phone conference will be transmitted practice law in any of the United to both parties); States or the District of Columbia or a (4) Determining if an oral hearing is territory of the United States, further necessary, the type of oral hearing that transmissions of documents and other would be appropriate, and setting the communications with the former em- place, date, and time for such hearing; ployee shall be made through his or her (5) Administering oaths or affirma- attorney rather than directly with the tions to witnesses; former employee. (6) Conducting the hearing in a man- § 966.7 Answer to petition. ner to maintain discipline and decorum Within thirty (30) days after the date while assuring that relevant, reliable, of receipt of the petition, the General and probative evidence is elicited on Counsel shall file an answer to the pe- the issues in dispute, and that irrele- tition, and attach all available rel- vant, immaterial, or repetitious evi- evant records and documents in sup- dence is excluded; port of the Postal Service’s claim, or (7) Establishing the record in the the administrative offset schedule pro- case; posed by the Postal Service for col- (8) Issuing an initial decision or one lecting any such claim; a statement of on remand; and whether the Postal Service concurs in, (9) Granting, at the request of either or objects to, an oral hearing, if the party, reasonable time extensions.

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(b) The Judicial Officer, in addition § 966.11 Appeal. to possessing such authority as is de- The initial or tentative decision will scribed elsewhere in this part, shall become final and an order to that ef- possess all of the authority and respon- fect will be issued by the Judicial Offi- sibilities of a Hearing Official. cer thirty (30) days after issuance and receipt by the parties of the initial or § 966.9 Opportunity for oral hearing. tentative decision unless the Judicial An oral hearing generally will be Officer, in his discretion, grants review held only in those cases which, in the upon appeal by either party, or on his opinion of the Hearing Official, cannot own motion. If an appeal is denied, the be resolved by a review of the docu- initial or tentative decision becomes mentary evidence, such as when the ex- the final agency decision upon the istence, or amount, of a debt turns on issuance of such denial. The Judicial issues of credibility or veracity. An Officer’s decision on appeal is the final oral hearing includes an in-person agency decision with no further right hearing, a telephonic hearing, or a of appeal within the agency. hearing by video conference. When the § 966.12 Waiver of rights. Hearing Official determines that an oral hearing is not necessary, the deci- The Hearing Official may determine sion shall be based solely on written the former employee has waived his or her right to a hearing and administra- submissions. tive offset may be initiated if the § 966.10 Initial decision. former employee: (a) Files a petition for hearing after (a) After the receipt of written sub- the end of the prescribed thirty (30) day missions or after the conclusion of the period, and fails to demonstrate to the hearing and the receipt of any post- satisfaction of the Hearing Official hearing briefs, the Hearing Official good cause for the delay; shall issue a written initial decision, (b) Has received notice to appear at including findings of fact and conclu- an oral hearing but fails to do so with- sions of law, which the Hearing Official out showing circumstances beyond the relied upon in determining whether the former employee’s control; former employee is indebted to the (c) Fails to file required submissions Postal Service, or in upholding or re- or to comply with orders of the Hear- vising the administrative offset sched- ing Official; or ule proposed by the Postal Service for (d) Files a withdrawal of his or her collecting a former employee’s debt. petition for a hearing with the Re- When the Judicial Officer presides at a corder. hearing he or she shall issue a final or § 966.13 Ex parte communications. a tentative decision. (b) The Hearing Official shall Ex parte communications between a promptly send to each party a copy of Hearing Official or his or her staff and a party shall not be made. This prohi- the initial or tentative decision, and a bition does not apply to procedural statement describing the right of ap- matters. A memorandum of any com- peal to the Judicial Officer in accord- munication between the Hearing Offi- ance with § 966.11. cial and a party will be transmitted to both parties.

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