Title 39—Postal Service

Part

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

CHAPTER III—Postal Rate Commission ...... 3000

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00011 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00012 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 CHAPTER I—UNITED STATES POSTAL SERVICE

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

BYLAWS OF THE BOARD OF GOVERNORS

Part Page 1 Postal policy [Article I] ...... 9 2 General and technical provisions [Article II] ...... 9 3 Board of Governors [Article III] ...... 10 4 Officers [Article IV] ...... 14 5 Committees [Article V] ...... 15 6 Meetings [Article VI] ...... 16 7 Public observation [Article VII] ...... 17 8 [Reserved] 9 Policy on communications with Governors of the Postal Service during pendency of rate and classification proceedings [Appendix] ...... 21 10 Rules of conduct for Postal Service Governors [Ap- pendix] ...... 22 11 Advisory boards [Article XI] ...... 23

SUBCHAPTER B—INTERNATIONAL MAIL 20 International Postal Service ...... 24

SUBCHAPTER C—POST OFFICE SERVICES [DOMESTIC MAIL]

GENERAL INFORMATION ON POSTAL SERVICE 111 General information on Postal Service ...... 26

SUBCHAPTER D—ORGANIZATION AND ADMINISTRATION 211 Application of regulations ...... 29 221 General organization...... 30 222 Delegations of authority ...... 33 223 Relationships and communication channels ...... 34

INSPECTION SERVICE REQUIREMENTS 230 Office of Inspector General ...... 35 231 Protection of post offices ...... 41 232 Conduct on postal property ...... 42 3

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00013 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 39 CFR Ch. I (7–1–06 Edition)

Part Page 233 Inspection Service authority ...... 46 235 Defense Department liaison ...... 69

POST OFFICE ORGANIZATION AND ADMINISTRATION 241 Establishment classification, and discontinuance .. 70 242 Change of site ...... 79 243 Conduct of offices ...... 79

GENERAL POSTAL ADMINISTRATION 254 Postal Service Standards for facility accessibility pursuant to the Architectural Barriers Act ...... 80 255 Access of persons with disabilities to postal service programs, activities, facilities, and electronic and information technology ...... 82 259 Services performed for other agencies ...... 86

RECORDS AND INFORMATION 261 Records and information management ...... 88 262 Records and information management definitions 89 263 Records retention and disposition ...... 92 264 Vital records...... 92 265 Release of information ...... 93 266 Privacy of information ...... 120 267 Protection of information ...... 131 268 Privacy of information—employee rules of conduct 134 273 Administration of Program Fraud Civil Remedies Act ...... 135

DAMAGE TO OR DESTRUCTION OF FIRM MAILINGS 281 Firm mailings damaged or destroyed through transportation accidents or catastrophes ...... 140

SUBCHAPTER E—RESTRICTIONS ON PRIVATE CARRIAGE OF LETTERS 310 Enforcement of the private express statutes ...... 141 320 Suspension of the private express statutes ...... 145

SUBCHAPTER F—PERSONNEL 447 Rules of conduct for postal employees ...... 153 491 Garnishment of salaries of employees of the Postal Service and the Postal Rate Commission ...... 157

SUBCHAPTER G—POSTAGE PROGRAMS 501 Authorization to Manufacture and Distribute Post- age Meters ...... 161 4

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00014 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 United States Postal Service

Part Page 551 Semipostal stamp program ...... 181

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 ..... 195

SUBCHAPTER I [RESERVED]

SUBCHAPTER J—POSTAL SERVICE DEBT OBLIGATIONS; DISBURSEMENT POSTAL MONEY ORDERS 760 Applicability of Treasury Department regulations 197 761 Book-entry procedures...... 197 762 Disbursement postal money orders ...... 200

SUBCHAPTER K—ENVIRONMENTAL REGULATIONS 775 National Environmental Policy Act procedures ..... 205 776 Floodplain and wetland procedures ...... 215

SUBCHAPTER L—SPECIAL REGULATIONS 777 Relocation assistance and real property acquisition policies ...... 220 778 Intergovernmental review of Postal Service facility actions ...... 239

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 ...... 243 913 Procedures for the issuance of administrative subpoenas under 39 U.S.C. 3016 ...... 246 916 [Reserved]

RULES OF PROCEDURE BEFORE THE MAIL PROCESSING DEPARTMENT 927 Rules of procedure relating to fines, deductions, and damages ...... 248

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00015 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 39 CFR Ch. I (7–1–06 Edition)

Part Page 931 Rules of procedure governing the compromise of obligations ...... 249

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 ...... 250

RULES OF PROCEDURE BEFORE THE JUDICIAL OFFICER 951 Procedure governing the eligibility of persons to practice before the Postal Service ...... 252 952 Rules of practice in proceedings relative to false representation and lottery orders ...... 254 953 Rules of practice in proceedings relative to mailability ...... 265 954 Rules of practice in proceedings relative to the denial, suspension, or revocation of periodicals mail privileges ...... 268 955 Rules of practice before the Board of Contract Ap- peals ...... 273 956 Rules of practice in proceedings relative to disciplinary action for violation of restrictions on post-employment activity ...... 284 957 Rules of practice in proceedings relative to debarment and suspension from contracting ...... 290 958 Rules of practice in proceedings relative to the refusal to provide Post Office box or caller service and the termination of Post Office box or caller service ...... 297 959 Rules of practice in proceedings relative to the private express statutes ...... 299 960 Rules relative to implementation of the Equal Ac- cess to Justice Act in Postal Service proceedings 306 961 Rules of practice in proceedings relative to employee hearing petitions under section 5 of the Debt Collection Act ...... 313 962 Rules of practice in proceedings relative to the Program Fraud Civil Remedies Act ...... 316 963 Rules of practice in proceedings relative to violations of the pandering advertisements statute, 39 U.S.C. 3008 ...... 325 964 Rules of practice governing disposition of mail withheld from delivery pursuant to 39 U.S.C. 3003, 3004 ...... 328 965 Rules of practice in proceedings relative to mail disputes ...... 333 6

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00016 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 United States Postal Service

Part Page 966 Rules of practice in proceedings relative to administrative offsets initiated against former employees of the Postal Service ...... 335

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00017 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00018 Fmt 8008 Sfmt 8008 Y:\SGML\208140.XXX 208140 SUBCHAPTER A—THE BOARD OF GOVERNORS OF THE U.S. POSTAL SERVICE

Bylaws of the Board of Governors opment of the Postal Service. Delega- tions of authority do not relieve the PART 1—POSTAL POLICY (ARTICLE I) Board of full responsibility for carrying out its duties and functions, and are Sec. revocable by the Governors in their ex- 1.1 Establishment of the U.S. Postal Serv- clusive judgment. ice. 1.2 Delegation of authority. PART 2—GENERAL AND TECHNICAL AUTHORITY: 39 U.S.C. 101, 202, 205, 401(2), PROVISIONS (ARTICLE II) 402, 403, 3621, as enacted by Public Law 91– 375. Sec. SOURCE: 59 FR 18447, Apr. 18, 1994, unless 2.1 Office of the Board of Governors. otherwise noted. 2.2 Agent for receipt of process. § 1.1 Establishment of the U.S. Postal 2.3 Offices. Service. 2.4 Seal. 2.5 Authority. The U.S. Postal Service is estab- 2.6 Severability, amendment, repeal, and lished under the provisions of the Post- waiver of bylaws. al Reorganization Act (the Reorganiza- tion Act) of August 12, 1970, Public Law AUTHORITY: 39 U.S.C. 202, 203, 205(c), 207, 91–375, 84 Stat. 719, as an independent 401(2), as enacted by Pub. L. 91–375, and 5 U.S.C. 552b(f), (g), as enacted by Pub. L. 94– establishment of the executive branch 409. of the Government of the United States, under the direction of a Board SOURCE: 59 FR 18447, Apr. 18, 1994, unless of Governors, with the Postmaster otherwise noted. General as its chief executive officer. The Board of Governors of the Postal § 2.1 Office of the Board of Governors. Service (the Board) directs the exercise There shall be located in Washington, of its powers through management DC an Office of the Board of Governors that is expected to be honest, efficient, of the United States Postal Service. It economical, and mindful of the com- shall be the function of this Office to petitive business environment in which provide staff support for the Board, as the Postal Service operates. The Board directed by the Chairman of the Board, consists of nine Governors appointed to enable the Board to carry out effec- by the President, by and with the ad- tively its duties under the Reorganiza- vice and consent of the Senate, to rep- tion Act. resent the public interest generally, together with the Postmaster General § 2.2 Agent for receipt of process. and Deputy Postmaster General. The General Counsel of the Postal § 1.2 Delegation of authority. Service shall act as agent for the re- Except for powers, duties, or obliga- ceipt of legal process against the Post- tions specifically vested in the Gov- al Service, and as agent for the receipt ernors by law, the Board may delegate of legal process against the Board of its authority to the Postmaster Gen- Governors or a member of the Board, in eral under such terms, conditions, and his or her official capacity, and all limitations, including the power of re- other officers and employees of the delegation, as it finds desirable. The Postal Service to the extent that the bylaws of the Board are the framework process arises out of the official func- of the system through which the Board tions of those officers and employees. monitors the exercise of the authority The General Counsel shall also issue it has delegated, measures progress to- public certifications concerning closed ward the goals it has set, and shapes meetings of the Board as appropriate the policies to guide the future devel- under 5 U.S.C. 552b(f).

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00019 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 2.3 39 CFR Ch. I (7–1–06 Edition)

§ 2.3 Offices. The principal office of the Postal Service is located in Washington, DC, with such regional and other offices and places of business as the Post- master General establishes from time to time, or the business of the Postal Service requires.

§ 2.4 Seal. (a) The Seal of the Postal Service is filed by the Board in the Office of the Secretary of State, and is required by 39 U.S.C. 207 to be judicially noticed. The Seal shall be in the custody of the General Counsel, who shall affix it to all commissions of officers of the Post- al Service, and use it to authenticate records of the Postal Service and for (b) The location and description of other official purposes. The following the Postal Service emblem is described describes the Seal adopted for the Post- at 39 CFR 221.9. al Service: (1) A stylized bald eagle is poised for § 2.5 Authority. flight, facing to the viewer’s right, These bylaws are adopted by the above two horizontal bars between Board under the authority conferred which are the words ‘‘U.S. MAIL’’, sur- upon the Postal Service by 39 U.S.C. rounded by a square border with round- 401(2) and 5 U.S.C. 552b(g). ed corners consisting of the words ‘‘UNITED STATES POSTAL SERV- § 2.6 Severability, amendment, repeal, ICE’’ on the left, top, and right, and and waiver of bylaws. consisting of nine five-pointed stars on The invalidity of any provision of the base. these bylaws does not affect the valid- (2) The color representation of the ity of the remaining provisions, and for Seal shows, a white field on which the this purpose these bylaws are sever- bald eagle appears in dark blue, the able. The Board may amend or repeal words ‘‘U.S. MAIL’’ in black, the bar these bylaws at any special or regular meeting, provided that each member of above the words in red, the bar below the Board has received a written notice in blue, and the entire border con- containing a statement of the proposed sisting of the words ‘‘UNITED STATES amendment or repeal at least 5 days POSTAL SERVICE’’ and stars in ochre. before the meeting. The members of the Board may waive the 5 days’ notice or the operation of any other provision of these bylaws by unanimous consent, if that action is not prohibited by law. The Secretary shall submit the text of any amendment to these bylaws for publication in the FEDERAL REGISTER as soon as practicable after the amendment is adopted by the Board.

PART 3—BOARD OF GOVERNORS (ARTICLE III)

Sec. 3.1 Responsibilities of Board. 3.2 Compensation of Board.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00020 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 ER18ap94.000 United States Postal Service § 3.3

3.3 Matters reserved for decision by the (2) Approval of the annual Postal Board. Service operating budget. 3.4 Matters reserved for decision by the (d) Approval of the annual financial Governors. 3.5 Delegation of authority by Board. statements of the Postal Service fol- 3.6 Information furnished to Board—finan- lowing receipt of the annual report of cial and operating reports. the Postal Service’s independent, cer- 3.7 Information furnished to Board—pro- tified public accounting firm. gram review. (e) Approval of the Postal Service 3.8 Information furnished to Board—special Five-Year Capital Investment Plans, reports. including specific approval of each cap- AUTHORITY: 39 U.S.C. 202, 203, 205, 401 (2), ital investment project, each new (10), 402, 414, 416, 1003, 2802–2804, 3013; 5 U.S.C. lease/rental agreement, and each re- 552b (g), (j); Inspector General Act, 5 U.S.C. search and development project exceed- app.; Pub. L. 107–67, 115 Stat. 514 (2001). ing such amount specified by resolu- SOURCE: 59 FR 18448, Apr. 18, 1994, unless tion at the annual Board meeting in otherwise noted. January. In the case of any project or agreement subject to the requirement § 3.1 Responsibilities of Board. of Board approval under this provision, The composition of the Board is de- the expenditure of any funds in excess scribed in 39 U.S.C. 202. The Board di- of the amount previously authorized by rects the exercise of the powers of the the Board must be specifically ap- Postal Service, reviews the practices proved by the Board. For the purpose and policies of the Postal Service, and of determining the cost of a capital in- directs and controls the expenditures vestment project, lease/rental agree- of the Postal Service. Consistent with ment, or research and development the broad delegation of authority to project, the Postmaster General in § 3.5 of these (1) All such projects and agreements bylaws, and except for those powers, undertaken as part of a unitary plan duties, or obligations which the Reor- (either for contemporaneous or sequen- ganization Act specifically vests in the tial development in one of several loca- Governors, as distinguished from the tions) shall be considered one project Board of Governors, the Board accom- or agreement, and plishes its purposes by monitoring the (2) The cost of a lease/rental agree- operations and performance of the Postal Service, and by establishing ment shall be the present value of all basic objectives, broad policies, and lease payments over the term of the long-range goals for the Postal Service. lease, including all periods covered by renewal options or all periods for which § 3.2 Compensation of Board. failure to renew imposes a penalty or a hardship such that renewal appears to Section 202(a) of title 39 provides for be reasonably assured, plus the cost of the compensation of the Governors and any leasehold improvements planned in for reimbursement for travel and rea- connection with the lease/rental agree- sonable expenses incurred in attending Board meetings. Compensation is pro- ment. The present value will be deter- vided for not more than 42 days of mined using the cost of capital of the meetings per year. Postal Service. (3) The cost of a developmental real § 3.3 Matters reserved for decision by estate project shall be the sum of: the Board. (i) The as-is value of the postal assets The following matters are reserved contributed to the project; for decision by the Board of Governors: (ii) Cash contributed by the Postal (a) [Reserved] Service; and (b) Adoption of, and amendments to, (iii) Debt that impacts the Postal the bylaws of the Board. Service’s investment. (c) (1) Approval of the annual Postal (f) Authorization of the Postal Serv- Service budget program in both ten- ice to request the Postal Rate Commis- tative and final form, including re- sion to submit a recommended decision quests for appropriations; on changes in postal rates.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00021 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 3.4 39 CFR Ch. I (7–1–06 Edition)

(g) Authorization of the Postal Serv- Court of the United States for writs of ice to request the Postal Rate Commis- certiorari. sion to submit a recommended decision (r) Approval and transmittal to the on changes in the mail classification President and the Congress of the an- schedule. nual report of the Postmaster General (h) Determination of an effective under 39 U.S.C. 2402. date for changes in postal rates or mail (s) Approval and transmittal to the classification. Congress of the annual report of the (i) Authorization of the Postal Serv- Board under 5 U.S.C. 552b(j). ice to request the Postal Rate Commis- (t) Approval of the annual com- sion to submit an advisory opinion on prehensive statement of the Postal a proposed change in the nature of Service to Congress under 39 U.S.C. postal services which will generally af- 2401(g). fect service on a nationwide or sub- (u) Approval and transmittal to the stantially nationwide basis. Congress of the semi-annual report of (j) Approval of any use of the author- the Postmaster General under 39 U.S.C. ity of the Postal Service to borrow 3013, summarizing the investigative ac- money under 39 U.S.C. 2005, except for tivities of the Postal Service. short-term borrowings, having matu- (v) Approval and transmittal to the rities of one year or less, assumed in President and the Congress of the Post- the normal course of business. al Service’s strategic plan pursuant to (k) Approval of the terms and condi- the Government Performance and Re- tions of each series of obligations sults Act of 1993, 39 U.S.C. 2802; ap- issued by the Postal Service under 39 proval of the Postal Service annual U.S.C. 2005, including the time and performance plan under 39 U.S.C. 2803 manner of sale and the underwriting and the Postal Service program per- arrangements, except for short-term formance report under 39 U.S.C. 2804, borrowings, having maturities of one which are included in the comprehen- year or less, assumed in the normal sive statement under 39 U.S.C. 2401. course of business. (w) All other matters that the Board (l) Approval of any use of the author- may consider appropriate to reserve for ity of the Postal Service to require the its decision. Secretary of the Treasury to purchase Postal Service obligations under 39 [59 FR 18448, Apr. 18, 1994, as amended at 62 U.S.C. 2006(b), or to request the Sec- FR 41853, Aug. 4, 1997; 62 FR 43642, Aug. 15, retary of the Treasury to pledge the 1997; 69 FR 42340, July 15, 2004; 69 FR 58057, full faith and credit of the Government Sept. 29, 2004] of the United States for the payment of § 3.4 Matters reserved for decision by principal and interest on Postal Serv- the Governors. ice obligations under 39 U.S.C. 2006(c). (m) Determination of the number of The following matters are reserved officers, described in 39 U.S.C. 204 as for decision by the Governors: Assistant Postmasters General, wheth- (a) Appointment, pay, term of server so denominated or not, as the Board ice, and removal of the Postmaster authorizes by resolution. General, 39 U.S.C. 202(c). (n) Compensation of officers of the (b) Appointment, term of service, and Postal Service whose positions are in- removal of the Deputy Postmaster cluded in Level II of the Postal Career General (by the Governors and the Executive Service. Postmaster General, 39 U.S.C. 202(d)); (o) [Reserved] pay of the Deputy Postmaster General, (p) Approval of official statements 39 U.S.C. 202(d). adopting major policy positions or de- (c) Election of the Chairman and parting from established major policy Vice Chairman of the Board of Gov- positions, and of official positions on ernors, 39 U.S.C. 202(a). legislative proposals having a major (d) Approval of the budget of the impact on the Postal Service. Postal Rate Commission, or adjust- (q) Approval of all major policy posi- ment of the total amount of the budget tions taken with the Department of (by unanimous written vote of the Gov- Justice on petitioning the Supreme ernors in office, 39 U.S.C. 3604(d)).

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00022 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 3.7

(e) Action upon a recommended deci- income and expense by principal cat- sion of the Postal Rate Commission, egories; (c) balance sheet information; including action to approve, allow (d) service quality measurements; (e) under protest, reject, or modify that productivity measurements (reflecting decision, 39 U.S.C. 3625. workload and resource utilization); and (f) Concurrence of the Governors with (f) changes in postal costs. These state- the Postmaster General in the removal ments shall include, where applicable, or transfer of the Chief Postal Inspec- comparable figures for the previous tor under 5 U.S.C. App. 8E(f). year and the current year’s plan. (g) The Governors shall meet annually in closed session to discuss com- § 3.7 Information furnished to Board— pensation, term of service, and ap- program review. pointment/removal of the Secretary (a) To enable the Board to review the and other necessary staff. Postal Service operating program, (h) Transmittal to the Congress of postal management shall furnish the the semi-annual report of the Inspector Board information on all aspects of the General under section 5 of the Inspec- Postal Service budget plan, including: tor General Act. (1) The tentative and final annual (i) Establishment of the price of the budgets submitted to the Office of breast cancer research semipostal Management and Budget and the Con- stamp under 39 U.S.C. 414. gress, and amendments to the budget; (j) Establishment of the price of (2) Five-year plans, annual operating semipostal stamps under 39 U.S.C. 416. and investment plans, and significant (k) Selection of an independent, cer- departures from estimates upon which tified public accounting firm to certify the plans were based; the accuracy of Postal Service finan- (3) The need for rate increases or de- cial statements as required by 39 U.S.C. creases and the progress of any pending 2008(e). rate cases and related litigation; and [59 FR 18448, Apr. 18, 1994, as amended at 62 (4) Debt financing needs, including a FR 41853, Aug. 4, 1997; 63 FR 28485, May 26, review of all borrowings of the Postal 1998; 67 FR 2135, Jan. 16, 2002; 69 FR 42340, Service from the U.S. Treasury and pri- July 15, 2004; 69 FR 58057, Sept. 29, 2004] vate sources. (b) To enable the Board to review the § 3.5 Delegation of authority by Board. effectiveness of the Postal Service’s As authorized by 39 U.S.C. 402, these equal employment opportunity pro- bylaws delegate to the Postmaster gram, performance data relating to General the authority to exercise the this program shall be furnished to the powers of the Postal Service to the ex- Board at least quarterly. This data tent that this delegation of authority shall be categorized in such manner as does not conflict with powers reserved the Board, from time to time, specifies. to the Governors or to the Board by (c) Postal management shall also law, these bylaws, or resolutions adopt- regularly furnish the Board informa- ed by the Board. Any of the powers del- tion regarding major programs for im- egated to the Postmaster General by proving postal service or reducing the these bylaws may be redelegated by the cost of postal operations. Postmaster General to any officer, em- (d) Management shall furnish to the ployee, or agency of the Postal Service. Board: (1) Information regarding any signifi- § 3.6 Information furnished to Board— cant, new program, policy, major modi- financial and operating reports. fication or initiative; any plan to offer To enable the Board to monitor the a significant, new or unique product or performance of the Postal Service dur- system implementation; or any signifi- ing the most recent accounting periods cant, new project not related directly for which data are available, postal to the core business function of the management shall furnish the Board Postal Service. This information shall (on a monthly basis) financial and op- be provided to the Board in advance of erating statements for the fiscal year entering into any agreement in fur- to date, addressing the following cat- therance of such project. For the pur- egories: (a) Mail volume by class; (b) poses of this paragraph, ‘‘significant’’

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00023 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 3.8 39 CFR Ch. I (7–1–06 Edition)

means a project anticipated to have a joint venture involving the use of such notable or conspicuous impact on (i) property. corporate visibility or (ii) the oper- (f) Other matters having important ating budget (including increases in ex- policy implications. pense amounts) or the capital investment budget. The notification require- PART 4—OFFICERS (ARTICLE IV) ment of this paragraph governs applicable projects regardless of the level of Sec. expenditure involved. 4.1 Chairman. (2) Information regarding any 4.2 Vice Chairman. project, in advance of entering into any 4.3 Postmaster General. agreement in furtherance of such 4.4 Deputy Postmaster General. project, where the potential liability 4.5 Assistant Postmasters General, General due to termination, breach, or other Counsel, Judicial Officer, Chief Postal reason would equal or exceed the Inspector. amount specified by resolution for ap- 4.6 Secretary of the Board. proval of capital investment projects AUTHORITY: 39 U.S.C. 202–205, 401(2), (10), pursuant to section 3.3(e) hereof. 402, 1003, 3013.

[59 FR 18448, Apr. 18, 1994, as amended 62 FR SOURCE: 59 FR 18450, Apr. 18, 1994, unless 18519, Apr. 16, 1997] otherwise noted.

§ 3.8 Information furnished to Board— § 4.1 Chairman. special reports. (a) The Chairman of the Board of To insure that the Board receives sig- Governors is elected by the Governors nificant information of developments from among the members of the Board. meriting its attention, postal manage- The Chairman: ment shall bring to the Board’s atten- (1) Shall preside at all regular and tion the following matters: special meetings of the Board, and (a) Major developments in personnel shall set the agenda for such meetings; areas, including but not limited to (2) Shall select and appoint the equal employment opportunity, career Chairman and members of any com- development and training, and grade mittee properly established by the and salary structures. Board; (b) Major litigation activities. Postal (3) Serves a term that commences management shall also notify the upon election and expires at the end of Board in a timely manner whenever it the first annual meeting following the proposes to seek review by any United meeting at which he or she was elected. States Court of Appeals of an adverse (b) If the Postmaster General is judicial decision. elected Chairman of the Board, the (c) Any significant changes proposed Governors shall also elect one of their in the Postal Service’s system of ac- number to preside during proceedings counts or methods of accounting. dealing with matters upon which only (d) Matters of special importance, in- the Governors may vote. cluding but not limited to important research and development initiatives, § 4.2 Vice Chairman. major changes in Postal Service organization or structure, major law en- The Vice Chairman is elected by the forcement activities, and other matters Governors from among the members of having a significant impact upon the the Board and shall perform the duties relationship of the Postal Service with and exercise the powers of the Chair- its employees, with any major branch man during the Chairman’s absence or of Government, or with the general disability. The Vice Chairman serves a public. term that commences upon election (e) Information concerning any pro- and expires at the end of the first an- posed grant of unique or exclusive li- nual meeting following the meeting at censes to use Postal Service intellec- which he or she was elected. tual properties (other than patents and [59 FR 18450, Apr. 18, 1994, as amended at 69 technical data rights), or any proposed FR 58058, Sept. 29, 2004]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00024 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 5.2

§ 4.3 Postmaster General. these meetings, and take steps nec- The appointment and role of the essary for compliance with all statutes Postmaster General are described at 39 and regulations dealing with public ob- U.S.C. 202(c), 203. The Governors set the servation of meetings. The Secretary salary of the Postmaster General by shall perform all those duties incident resolution, subject to the limitations to this office, including those duties as- of 39 U.S.C. 1003(a). signed by the Board or by the Chair- man of the Board. The Chairman may § 4.4 Deputy Postmaster General. designate such assistant secretaries as may be necessary to perform any of the The appointment and role of the Dep- duties of the Secretary. uty Postmaster General are described at 39 U.S.C. 202(d), 203. The Deputy [59 FR 18450, Apr. 18, 1994. Redesignated at 62 Postmaster General shall act as Post- FR 61914, Nov. 20, 1997] master General during the Postmaster General’s absence or disability, and PART 5—COMMITTEES (ARTICLE V) when a vacancy exists in the office of Postmaster General. The Governors set Sec. the salary of the Deputy Postmaster 5.1 Establishment and appointment. General by resolution, subject to the 5.2 Committee procedure. limitations of 39 U.S.C. 1003(a). AUTHORITY: 39 U.S.C. 202, 203, 204, 205, 401(2), (10), 1003, 3013. § 4.5 Assistant Postmasters General, General Counsel, Judicial Officer, SOURCE: 59 FR 18450, Apr. 18, 1994, unless Chief Postal Inspector. otherwise noted. There are within the Postal Service a § 5.1 Establishment and appointment. General Counsel, a Judicial Officer, a From time to time the Board may es- Chief Postal Inspector, and such num- tablish by resolution special and stand- ber of officers, described in 39 U.S.C. ing committees of one or more mem- 204 as Assistant Postmasters General, bers of the Board. The Board shall whether so denominated or not, as the specify, in the resolution establishing Board authorizes by resolution. These any committee, whether the com- officers are appointed by, and serve at mittee is authorized to submit rec- the pleasure of, the Postmaster Gen- ommendations or preliminary deci- eral. The Chief Postal Inspector shall sions to the Board, to conduct hearings report to, and be under the general su- for the Board, or otherwise to take ac- pervision of, the Postmaster General. tion on behalf of the Board. Each com- The Postmaster General shall prompt- mittee may exercise only those duties, ly notify the Governors and both functions, and powers prescribed from Houses of Congress in writing if he or time to time by the Board, and the she removes the Chief Postal Inspector Board may affirm, alter, or revoke any or transfers the Chief Postal Inspector action of any committee. Each member to another position or location within of the Board may have access to all of the Postal Service, and shall include in the information and records of any any such notification the reasons for committee at any time. The Chairman such removal or transfer. of the Board shall appoint the chair- [62 FR 61914, Nov. 20, 1997] man and members of each committee, who serve terms which expire at the § 4.6 Secretary of the Board. end of each annual meeting. Each com- The Secretary of the Board of Gov- mittee chairman may assign respon- ernors is appointed by the Governors sibilities to members of the committee and serves at the pleasure of the Gov- that are considered appropriate. The ernors. The Secretary shall be respon- committee chairman, or the chair- sible for carrying out the functions of man’s designee, shall preside at all the Office of the Board of Governors, meetings of the committee. under the direction of the Chairman of the Board. The Secretary shall also § 5.2 Committee procedure. issue notices of meetings of the Board Each committee establishes its own and its committees, keep minutes of rules of procedure, consistent with

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00025 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 6 39 CFR Ch. I (7–1–06 Edition)

these bylaws, and meets as provided in § 6.3 Notice of meetings. its rules. A majority of the members of The Chairman or the members of the a committee constitute a quorum. Board may give the notice required [61 FR 36499, July 11, 1996] under § 6.1 or § 6.2 of these bylaws in oral or written form. Oral notice to a PART 6—MEETINGS (ARTICLE VI) member may be delivered by telephone and is sufficient if made to the member personally or to a responsible person in Sec. the member’s home or office. Any oral 6.1 Regular meetings, annual meeting. notice to a member must be subse- 6.2 Special meetings. quently confirmed by written notice. 6.3 Notice of meetings. Written notice to a member may be de- 6.4 Attendance by conference telephone call. livered by telegram or by mail sent by 6.5 Minutes of meetings. the fastest regular delivery method ad- 6.6 Quorum and voting. dressed to the member’s address of record filed with the Secretary, and ex- AUTHORITY: 39 U.S.C. 202, 205, 401(2), (10), cept for written notice confirming a 1003, 3013; 5 U.S.C 552b (e), (g). previous oral notice, must be sent in SOURCE: 59 FR 18451, Apr. 18, 1994, unless sufficient time to reach that address at otherwise noted. least 2 days before the meeting date under normal delivery conditions. A § 6.1 Regular meetings, annual meet- member waives notice of any meeting ing. by attending the meeting, and may The Board shall meet regularly on a otherwise waive notice of any meeting schedule established annually by the at any time. Neither oral nor written Board. The first regular meeting of notice to the Secretary is sufficient each calendar year is designated as the until actually received by the Sec- annual meeting. Consistent with the retary. The Secretary may not waive provisions of § 7.5 of these bylaws, the notice of any meeting. time or place of a regular or annual § 6.4 Attendance by conference tele- meeting may be varied by recorded phone call. vote, with the earliest practicable notice to the Secretary. The Secretary Unless prohibited by law or by these shall distribute to the members an bylaws, a member of the Board may participate in a meeting of the Board agenda setting forth the proposed sub- by conference telephone or similar ject matter for any regular or annual communications equipment which en- meeting in advance of the meeting. ables all persons participating in the [68 FR 28773, May 27, 2003, as amended at 69 meeting to hear each other and which FR 58058, Sept. 29, 2004] permits full compliance with the provisions of these bylaws concerning public § 6.2 Special meetings. observation of meetings. Attendance at Consistent with the provisions of § 7.5 a meeting by this method constitutes of these bylaws, the Chairman may call presence at the meeting; and no Gov- a special meeting of the Board at any ernor attending by telephone may replace in the United States, with not ceive compensation, except for a spe- less than 8 days’ notice to the other cial meeting by conference telephone members of the Board and to the Sec- that is more than one hour in duration, retary, specifying the time, date, place, or a special committee meeting be- and subject matter of the meeting. By tween Board meetings called under § 6.2 recorded vote a majority of the mem- of these bylaws. bers of the Board may call a special [63 FR 57912, Oct. 29, 1998] meeting of the Board at any place in the United States, with the earliest § 6.5 Minutes of meetings. practicable notice to the other mem- The Secretary shall preserve the bers of the Board and to the Secretary, minutes of Board meetings prepared specifying the time, date, place and under § 4.7 of these bylaws. After the subject matter of the meeting. minutes of any meeting are approved

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00026 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 7.1

by the Board, the Secretary shall majority of the entire membership of promptly make available to the public, the Board; and in the Communications Department at (h) In the decision to call a meeting Postal Service Headquarters, or in an- with less than a week’s notice, 5 U.S.C. other place easily accessible to the 552b(e)(1) requires a vote of a majority public, copies of the minutes, except of the members of the Board. In the de- for those portions which contain infor- cision to change the subject matter of mation inappropriate for public disclo- a meeting, or the determination to sure under 5 U.S.C. 552(b) or 39 U.S.C. open or close a meeting, 5 U.S.C. 410(c). 552b(e)(2) requires a vote of a majority § 6.6 Quorum and voting. of the entire membership of the Board. As provided by 39 U.S.C. 205(c), the [59 FR 18451, Apr. 18, 1994, as amended at 69 Board acts by resolution upon a major- FR 58058, Sept. 29, 2004] ity vote of those members who are present. No proxies are allowed in any PART 7—PUBLIC OBSERVATION vote of the members of the Board. Any (ARTICLE VII) 6 members constitute a quorum for the transaction of business by the Board, Sec. except: 7.1 Definitions. (a) In the appointment or removal of 7.2 Open meetings. the Postmaster General, and in setting 7.3 Exceptions. the compensation of the Postmaster 7.4 Procedure for closing a meeting. General and Deputy Postmaster Gen- 7.5 Public notice of meetings, subsequent eral, 39 U.S.C. 205(c)(1) requires a favor- changes. able vote of an absolute majority of the 7.6 Certification and transcripts of closed Governors in office; meetings. (b) In the appointment or removal of 7.7 Enforcement. the Deputy Postmaster General, 39 7.8 Open meetings, Freedom of Information, U.S.C. 205(c)(2) requires a favorable and Privacy of Information.

vote of an absolute majority of the AUTHORITY: 39 U.S.C. 401(a), as enacted by Governors in office and the Postmaster Pub. L. 91–375, and 5 U.S.C. 552b(a)–(m) as en- General; acted by Pub. L. 94–409. (c) In the appointment, removal, or in the setting of the compensation of SOURCE: 59 FR 18451, Apr. 18, 1994, unless the Secretary, Assistant Secretary, or otherwise noted. other necessary staff, a favorable vote § 7.1 Definitions. of an absolute majority of the Gov- ernors in office is required; For purposes of §§ 7.2 through 7.8 of (d) In the adjustment of the total these bylaws: budget of the Postal Rate Commission, (a) The term Board means the Board 39 U.S.C. 3604(c) requires a unanimous of Governors, and any subdivision or written vote of the Governors in office; committee of the Board authorized to (e) In the modification of a rec- take action on behalf of the Board. ommended decision of the Postal Rate (b) The term meeting means the delib- Commission, 39 U.S.C. 3625 requires a erations of at least the number of indi- unanimous written vote of the Gov- vidual members required to take ac- ernors in office; and tion on behalf of the Board under § 5.2 (f) In the approval, allowance under or § 6.5 of these bylaws, where such de- protest, or rejection of a recommended liberations determine or result in the decision of the Postal Rate Commis- joint conduct or disposition of the offi- sion, the Governors act upon a major- cial business of the Board. The term ity vote of the Governors present, and ‘‘meeting’’ does not include any proce- the required quorum of 6 members dural deliberations required or per- must include at least 4 Governors; mitted by §§ 6.1, 6.2, 7.4, or § 7.5 of these (g) In the determination to close a bylaws. portion of a meeting or to withhold information concerning a meeting, 5 [59 FR 18451, Apr. 18, 1994, as amended at 61 U.S.C. 552b(d)(1) requires a vote of a FR 36499, July 11, 1996]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00027 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 7.2 39 CFR Ch. I (7–1–06 Edition)

§ 7.2 Open meetings. (a) Disclose matters that are (1) specifically authorized under criteria es- (a) It is the policy of the United tablished by an Executive order to be States, established in section 2 of the kept secret in the interests of national Government in the Sunshine Act, Pub- defense or foreign policy, and (2) in fact lic Law 94–409, 90 Stat. 1241, that the properly classified under that Execu- public is entitled to the fullest prac- tive order; ticable information regarding the deci- (b) Relate solely to the internal per- sionmaking processes of the Federal sonnel rules and practices of the Postal Government. The Postal Service is Service, including the Postal Service charged to provide the public with this position in negotiations or consulta- information while protecting the rights tions with employee organizations. of individuals and the ability of the (c) Disclose matters specifically ex- Government to carry out its respon- empted from disclosure by statute sibilities. Accordingly, except as spe- (other than the Freedom of Informa- cifically permitted by statute, every tion Act, 5 U.S.C. 552), provided that portion of every meeting of the Board the statute (1) requires that the mat- of Governors is open to public observa- ters be withheld from the public in tion. such a manner as to leave no discretion (b) Except as provided in § 7.3 of these on the issue, or (2) establishes par- bylaws, every portion of every meeting ticular criteria for withholding or re- of the Board is open to public observa- fers to particular types of matters to tion. Members of the Board may not be withheld; jointly conduct or dispose of business (d) Disclose trade secrets and com- of the Board without complying with mercial or financial information ob- §§ 7.2 through 7.8 of these bylaws. Mem- tained from a person and privileged or bers of the public may obtain access to confidential, such as market informa- documents considered at meetings to tion pertinent to Postal Service bor- the extent provided in the regulations rowing or investments, technical or of the Postal Service concerning the patent information related to postal release of information. mechanization, or commercial infor- (c) Without the permission of a ma- mation related to purchases of real es- jority of the Board, no person may par- tate; ticipate in, film, televise, or broadcast (e) Involve accusing any person of a any portion of any meeting of the crime, or formally censuring any per- Board. Any person may electronically son; record or photograph a meeting, as (f) Disclose information of a personal long as that action does not tend to nature, such as personal or medical impede or disturb the members of the data regarding any individual if disclo- Board in the performance of their du- sure would constitute a clearly unwar- ties, or members of the public while at- ranted invasion of personal privacy; tempting to attend or observe a meet- (g) Disclose investigatory records ing of the Board. The rules and pen- compiled for law enforcement purposes, alties of 39 CFR 232.6, concerning con- or information which if written would duct on postal property, apply with re- be contained in those records, but only gard to meetings of the Board. to the extent that the production of those records or information would (1) § 7.3 Exceptions. interfere with enforcement pro- Section 7.2 of these bylaws does not ceedings, (2) deprive a person of a right apply to a portion of a meeting, and to a fair trial or an impartial adjudica- §§ 7.4 and 7.5 do not apply to information, (3) constitute an unwarranted in- tion concerning the meeting which oth- vasion of personal privacy, (4) disclose erwise would be required to be dis- the identity of a confidential source closed to the public, if the Board prop- and, in the case of a record compiled by erly determines that the public inter- a criminal law enforcement authority est does not require otherwise, and in the course of a criminal investiga- that such portion of the meeting or the tion, or by an agency conducting a law- disclosure of such information is likely ful national security intelligence in- to: vestigation, confidential information

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00028 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 7.5

furnished only by the confidential proposed to be closed to the public, or source, (5) disclose investigative tech- with respect to information concerning niques and procedures, or (6) endanger the series, so long as each portion of a the life or physical safety of law en- meeting in the series involves the same forcement 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 dis- vote under paragraph (a) or (b) of this closed to the public the content or na- section. Within 1 day of any vote under ture of the proposed action, or (2) the paragraph (a) or (b) of this section, the Postal Service is required by law to Secretary shall make publicly avail- make such disclosure on its own initia- able a written copy of the vote showing tive before taking final action on the the vote of each member on the ques- proposal; or tion. If a portion of a meeting is to be (j) Specifically concern the issuance closed to the public, the Secretary of a subpoena by the Postal Service, or shall, within 1 day of the vote, make the participation of the Postal Service publicly available a full written explain a civil action or proceeding, such as nation of the action closing the por- a postal rate or classification pro- tion, together with a list of all persons ceeding, an action in a foreign court or expected to attend the meeting and international tribunal, or an arbitra- their affiliation. tion, or the initiation, conduct, or disposition by the Postal Service of a par- [59 FR 18451, Apr. 18, 1994, as amended at 62 ticular case of formal adjudication FR 4459, Jan. 30, 1997] under the procedures of 5 U.S.C. 554 or otherwise involving a determination on § 7.5 Public notice of meetings, subse- the record after opportunity for a hear- quent changes. ing. (a) At least one week before any meeting of the Board, the Secretary § 7.4 Procedure for closing a meeting. shall publicly announce the time, date, (a) A majority of the entire member- place, and subject matter of the meet- ship of the Board may vote to close a ing, whether it is to be open or closed portion of a meeting or to withhold in- to the public, and the name and phone formation concerning a meeting under number of the official designated by the provisions of § 7.3 of these bylaws. the Board to respond to requests for in- The members shall take a separate formation about the meeting. vote with respect to each meeting a (b) By a recorded vote, a majority of portion of which is proposed to be the members of the Board may deter- closed to the public, or with respect to mine that the business of the Board re- any information which is proposed to quires a meeting to be called with less be withheld, and shall make every rea- than a week’s notice. At the earliest sonable effort to take any such vote at practicable time, the Secretary shall least 8 days before the date of the publicly announce the time, date, meeting involved. The members may place, and subject matter of the meet- take a single vote with respect to a se- ing, and whether it is to be open or ries of meetings, portions of which are closed to the public.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00029 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 7.6 39 CFR Ch. I (7–1–06 Edition)

(c) Following the public announce- The Secretary shall maintain a comment required by paragraphs (a) or (b) plete verbatim copy of the transcript, of this section: or a complete electronic recording of (1) As provided in § 6.1 of these by- each meeting or portion of a meeting laws, the Board may change the time closed to the public for at least 2 years or place of a meeting. At the earliest after the meeting, or for 1 year after practicable time, the Secretary shall the conclusion of any Postal Service publicly announce the change. proceeding with respect to which the (2) A majority of the entire member- meeting was held, whichever occurs ship of the Board may change the sub- later. ject matter of a meeting, or the deter- (c) Except for those items of discus- mination to open or close a meeting to sion or testimony which the Board, by the public, if it determines by a re- a majority vote of those members who corded vote that the change is required are present, determines to contain in- by the business of the Board and that formation which may be withheld no earlier announcement of the change under § 7.3 of these bylaws, the Sec- was possible. At the earliest prac- retary shall promptly make available ticable time, the Secretary shall pub- to the public, in the Public and Em- licly announce the change, and the ployee Communications Department at vote of each member upon the change. Postal Service Headquarters, or in an- (d) Immediately following each pub- other place easily accessible to the lic announcement required under para- public, the transcript or electronic re- graphs (a), (b), or (c) of this section, cording of a closed meeting, including the Secretary shall submit for publica- the testimony of any witnesses re- tion in the FEDERAL REGISTER a notice ceived at the meeting. The Secretary of the time, date, place, and subject shall furnish a copy of this transcript, matter of the meeting, whether the or a transcription of this electronic re- meeting is open or closed, any change cording disclosing the identity of each in the preceding, and the name and speaker, to any person at the actual phone number of the official designated cost of duplication or transcription. by the Board to respond to requests for information about the meeting. The § 7.7 Enforcement. Secretary shall also submit the an- (a) Under 5 U.S.C. 552b(g), any person nouncement and information to the may bring a proceeding in the United Postal Service Public and Employee States Court of Appeals for the District Communications Department for dis- of Columbia to set aside any provisions semination to the public. of these bylaws which are not in accord with the requirements of 5 U.S.C. 552b § 7.6 Certification and transcripts of (a)–(f) and to require the promulgation closed meetings. of provisions that are in accord with (a) At the beginning of every meeting those requirements. or portion of a meeting closed under (b) Under 5 U.S.C. 552b(h) any person § 7.3 (a) through (j) of these bylaws, the may bring a civil action against the General Counsel shall publicly certify Board in an appropriate U.S. District that, in his or her opinion, the meeting Court to obtain judicial review of the or portion of the meeting may be alleged failure of the Board to comply closed to the public, stating each rel- with 5 U.S.C. 552b (a)–(f). The burden is evant exemptive provision. The Sec- on the Board to sustain its action. The retary shall retain this certification, court may grant appropriate equitable together with a statement from the of- relief, including enjoining future viola- ficer presiding at the meeting which tions, or ordering the Board to make sets forth the time and place of the public information improperly with- meeting, and the persons present. held from the public. (b) The Secretary shall arrange for a (c) Under 5 U.S.C. 552b(i) the court complete transcript or electronic re- may assess against any party reason- cording adequate to record fully the able attorney fees and other litigation proceedings to be made of each meet- costs reasonably incurred by any other ing or portion of a meeting of the party who substantially prevails, ex- Board which is closed to the public. cept that the court may assess costs

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00030 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 9.2

against the plaintiff only if the court tions. These restrictions should reflect finds that he initiated the suit pri- a balance between, on the one hand, marily for frivolous or dilatory pur- the need to safeguard the integrity of poses. the administrative process for setting rates and classifications and insure § 7.8 Open meetings, Freedom of Infor- meaningful judicial review of decisions mation, and Privacy of Information. of the Governors on these subjects, and The provisions of 5 U.S.C. 552b(c) (1)– on the other hand, the need for open (10), enacted by Public Law 94–409, the access to the Board to permit the mem- Government in the Sunshine Act, gov- bers to meet their statutory respon- ern in the case of any request under sibilities. To strike an appropriate bal- the Freedom of Information Act, 5 ance, the Board has adopted the fol- U.S.C. 552, to copy or to inspect the lowing general guidelines: From the transcripts or electronic recordings de- time the Postal Rate Commission scribed in § 7.6 of these bylaws. Nothing issues a recommended decision until in 5 U.S.C. 552b authorizes the Board to the Governors have acted on the rec- withhold from any individual any ommended decision, any communica- record, including the transcripts or tion from an interested person to the electronic recordings described in § 7.6 Governors that is relevant to the mer- of these bylaws, to which the indi- its of the proceeding should be on the vidual may otherwise have access public record and available for public under 5 U.S.C. 552a, enacted by the Pri- inspection. vacy Act of 1974, Public Law 93–579. (b) In reviewing recommended decisions of the Commission, the Governors PART 8 [RESERVED] act on the record before them. They are under no obligation to take com- PART 9—POLICY ON COMMU- munications from the public into ac- NICATIONS WITH GOVERNORS count in reaching their decision. OF THE POSTAL SERVICE DURING § 9.2 Communications with the Gov- PENDENCY OF RATE AND CLAS- ernors during the restricted period. SIFICATION PROCEEDINGS [AP- Once the Commission issues a rec- PENDIX] ommended decision, and until the Gov- ernors have acted on that rec- Sec. ommended decision by approving, re- 9.1 General policy. jecting, allowing under protest or 9.2 Communications with the Governors modifying it, the following guidelines during the restricted period. apply to communications with the 9.3 Public availability of communications. Governors that are relevant to the AUTHORITY: 39 U.S.C. 202, 203, 205, 401 (2), merits of the proceeding. (10), 3621, 3625. (a) Oral communications. During the SOURCE: 49 FR 2888, Jan. 24, 1984, unless restricted period, it is the policy of the otherwise noted. Governors not to receive oral communications relevant to the merits of the § 9.1 General policy. proceeding from any interested person. (a) To represent the public interest In the event such a conversation does generally and to insure that the Postal inadvertently take place, the Governor Service meets the needs of the mailing involved shall prepare a memorandum public, the Governors must be free to of the conversation and submit it to hold uninhibited discussions on broad the Secretary of the Board for inclu- postal issues with mailers and the gen- sion in the public record, where it shall eral public. Nevertheless, the Gov- be available for public inspection. ernors believe that certain restrictions (b) Written communications. (1) During on communications with the public are the restricted period any communica- appropriate when the Governors act in tion relevant to the merits of the pro- their capacity as final administrative ceeding that an interested person may decisionmakers on recommended deci- wish to submit to the Governors must sions of the Postal Rate Commission be in writing and should not exceed fif- concerning postal rates and classifica- teen pages in length. Such comments

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00031 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 9.3 39 CFR Ch. I (7–1–06 Edition)

should be based on the record and ad- PART 10—RULES OF CONDUCT FOR dressed to the Governors through the POSTAL SERVICE GOVERNORS Secretary of the Board. If the com- [APPENDIX] menter has been a party to the Com- mission proceeding, copies should be Sec. sent to all other parties to that pro- 10.1 Applicability. ceeding. The Secretary shall make all 10.2 Advisory service. such communications available for 10.3 Post-employment activities. 10.4 Financial disclosure reports. public inspection. (2) Because the Governors are often AUTHORITY: 39 U.S.C. 401. required to act promptly on a rec- SOURCE: 52 FR 29697, Aug. 11, 1987, unless ommended decision from the Commis- otherwise noted. sion, interested persons seeking to § 10.1 Applicability. communicate with the Governors should submit their comments no later This part contains rules of conduct than ten (10) days after the Commis- for the members of the Board of Gov- sion has issued its recommended deci- ernors of the United States Postal sion. This period may be extended at Service. As special employees within the meaning of 18 U.S.C. 202(a), the the discretion of the Governors. members of the Board are also subject (c) Scope of the guidelines. These to the Standards of Ethical Conduct for guidelines apply to communications Employees of the Executive Branch, 5 from interested persons to the Gov- CFR part 2635, and Postal Service regu- ernors, their staff, personal assistants lations supplemental thereto, 5 CFR (if any), the Secretary of the Board and part 7001. any official of the Office of the Board. Since the Act assigns final decision- [61 FR 36499, July 11, 1996] making authority on Commission rec- § 10.2 Advisory service. ommended decisions to the Governors (a) The General Counsel is the Eth- and not the Board, these guidelines do ical Conduct Officer of the Postal Serv- not apply to the Postmaster General or ice and the Designated Agency Ethics the Deputy Postmaster General, nor do Official for purposes of the Ethics in they apply to other officers or officials Government Act, as amended, and the of the Postal Service. Moreover, in implementing regulations of the Office order to carry out their statutory re- of Government Ethics, including 5 CFR sponsibility to direct ‘‘the exercise of part 2638. the power of the Postal Service,’’ 39 (b) A Governor may obtain advice U.S.C. 202(a), the Governors must be and guidance on questions of conflicts free to discuss all matters of postal of interest, and may request any ruling policy with officers and employees of provided for by either the Standards of the Postal Service. Accordingly, no re- Ethical Conduct for Employees of the strictions apply to communications be- Executive Branch, or the Postal Serv- tween the Governors and Postal Serv- ice regulations supplemental thereto, ice employees. from the General Counsel or a designated assistant. § 9.3 Public availability of communica- (c) If the General Counsel determines tions. that a Governor is engaged in activity which involves a violation of federal All communications placed on the statute or regulation, including the public record pursuant to these guide- ethical conduct regulations contained lines shall be available for public in- in 5 CFR parts 2635 and 7001, or conduct spection at the Office of the Board of which creates the appearance of such a Governors, United States Postal Serv- violation, he or she shall bring this to ice, Room 10–300, 475 L’Enfant Plaza the attention of the Governor or shall West, SW., Washington, DC 20260–1000, notify the Chairman of the Board of between 8:30 a.m. and 4:30 p.m., Monday Governors, or the Vice Chairman, as through Friday except Federal holi- appropriate. days. [61 FR 36499, July 11, 1996]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00032 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 11.1

§ 10.3 Post-employment activities. filing, be reviewed by the General Governors are subject to the restric- Counsel who shall either approve the tions on the post-employment activi- report, or make an initial determina- ties of special Government employees tion that a conflict or appearance imposed by 18 U.S.C. 207. Guidance con- thereof exists. If the General Counsel cerning post-employment restrictions determines initially that a conflict or applicable to Governors may be ob- the appearance of a conflict exists, he tained in accordance with § 10.2(b). or she shall inform the Governor of his determination. [61 FR 36500, July 11, 1996] (2) If the General Counsel considers § 10.4 Financial disclosure reports. that additional information is needed to complete the report or to allow an (a) Requirement of submission of reports. At the time of their nomination, adequate review to be conducted, he or Governors complete a financial disclo- she shall request the reporting Gov- sure report which, under the practice ernor to furnish that information by a of the Senate Governmental Affairs specified date. Committee, is kept confidential. Be- (3) The General Counsel shall refer to cause the Director of the Office of Gov- the Chairman of the Board of Gov- ernment Ethics has ruled that Gov- ernors or the Vice Chairman the name ernors who do not perform the duties of of any Governor he or she has reason- their office for more than 60 days in able cause to believe has wrongfully any calendar year are not required to failed to file a report or has falsified or file financial disclosure reports that wrongfully failed to report required in- are open to the public, Governors file formation. non-public reports annually, in accord- (e) Custody of and public access to re- ance with this section. A Governor who ports—(1) Retention of reports. Each re- performs the duties of his or her office port filed with the General Counsel for more than 60 days in a particular shall be retained by him or her for a calendar year is required to file a pub- period of six years. After the six-year lic report in accordance with 5 CFR period, the report shall be destroyed 2634.204(c). unless needed in connection with an in- (b) Person with whom reports should be vestigation then pending. filed and time for filing. (1) A Governor shall file a financial disclosure report (2) Confidentiality of reports. Unless a with the General Counsel on or before public report is required by this sec- May 15 of each year when the Governor tion, the financial disclosure reports has been in office for more than 60 con- filed by Governors shall not be made secutive calendar days during the pre- public. vious year. [52 FR 29697, Aug. 11, 1987. Redesignated and (2) The General Counsel may, for amended at 61 FR 36500, July 11, 1996] good cause shown, grant to a Governor an extension of up to 45 days. An additional extension of up to 45 days may PART 11—ADVISORY BOARDS be granted by the Director of the Office [ARTICLE XI] of Government Ethics for good cause shown. AUTHORITY: 39 U.S.C. 202, 203, 204, 205, (c) Information required to be reported. 401(2), (10), 402, 403, 1003, 3013, 5 U.S.C. 552b(a), Each report shall be a full and com- (b) (g). plete statement, on the form prescribed by the General Counsel and the Office § 11.1 Establishment. of Government Ethics and in accord- The Board of Governors may create ance with instructions issued by him or such advisory boards as it may deem her. The form currently in use is appropriate and may appoint persons Standard Form 278. to serve thereon or may delegate such (d) Reviewing reports. (1) Financial latter authority to the Postmaster disclosure reports filed in accordance General. with the provisions of this section shall, within 60 days after the date of [59 FR 18454, Apr. 18, 1994]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00033 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER B—INTERNATIONAL MAIL

PART 20—INTERNATIONAL POSTAL International Mail Manual Date of issuance SERVICE Issue 11 ...... December 24, 1992. Sec. Issue 12 ...... July 8, 1993. 20.1 International Mail Manual; incorpora- Issue 13 ...... February 3, 1994. Issue 14 ...... August 4, 1994. tion by reference. Issue 15 ...... July 9, 1995. 20.2 Effective date of the International Mail Issue 16 ...... January 4, 1996. Manual. Issue 17 ...... September 12, 20.3 Availability of the International Mail 1996. Manual. Issue 18 ...... June 9, 1997. 20.4 Amendments to the International Mail Issue 19 ...... October 9, 1997. Manual. Issue 20 ...... July 2, 1998. Issue 21 ...... May 3, 1999. 20.5 [Reserved] Issue 22 ...... January 1, 2000. AUTHORITY: 5 U.S.C. 552(a); 39 U.S.C. 401, Issue 23 ...... July 1, 2000. Issue 24 ...... January 1, 2001. 404, 407, 408. Issue 25 ...... July 1, 2001. SOURCE: 69 FR 59546, Oct. 5, 2004, unless Issue 26 ...... January 1, 2002. otherwise noted. Issue 27 ...... June 30, 2002. Issue 28 ...... January 1, 2003. Issue 29 ...... July 1, 2003. § 20.1 International Mail Manual; in- Issue 30 ...... August 1, 2004. corporation by reference. Issue 31 ...... May 31, 2005. (a) Section 552(a) of Title 5, U.S.C., relating to the public information re- [70 FR 70964, Nov. 23, 2005] quirements of the Administrative Pro- cedure Act, provides in pertinent part § 20.2 Effective date of the Inter- that ‘‘* * * matter reasonably avail- national Mail Manual. able to the class of persons affected The provisions of the International thereby is deemed published in the Mail Manual Issue 31, effective May 31, FEDERAL REGISTER when incorporated 2005 are applicable with respect to the by reference therein with the approval international mail services of the Post- of the Director of the Federal Reg- al Service. ister.’’ In conformity with that provi- [70 FR 70964, Nov. 23, 2005] sion, with 39 U.S.C. section 410(b)(1), and as provided in this part, the U.S. § 20.3 Availability of the International Postal Service hereby incorporates by Mail Manual. reference its International Mail Man- Copies of the International Mail ual (IMM), Issue 31, dated May 31, 2005. Manual may be purchased from the Su- The Director of the Federal Register perintendent of Documents, U.S. Gov- approves this incorporation by ref- ernment Printing Office, Washington, erence in accordance with 5 U.S.C. DC 20402–9371. The IMM is available for 552(a) and 1 CFR part 51. examination on the Internet at http:// (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 International Mail Manual Date of issuance branches. You may also inspect a copy at the U.S. Postal Service Library, 475 Issue 1 ...... November 13, L’Enfant Plaza West SW., Washington, 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, (NARA). For information on the avail- 1986. Issue 5 ...... April 21, 1988. ability of this material at NARA, call Issue 6 ...... October 5, 1988. 202–741–6030, or go to: http:// Issue 7 ...... July 20, 1989. www.archives.gov/federallregister/ Issue 8 ...... June 28, 1990. Issue 9 ...... February 3, 1991. codeloflfederallregulations/ Issue 10 ...... June 25, 1992. ibrllocations.html.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00034 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 20.5

§ 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]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00035 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER C—POST OFFICE SERVICES [DOMESTIC MAIL]

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 during regular business hours for pub- of the United States Postal Service, Do- lic inspection at area and district of- mestic Mail Manual. fices of the Postal Service and at all 111.3 Amendments to the Mailing Standards 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); 39 U.S.C. 101, (b) A copy of the current Mailing 401, 403, 414, 416, 3001–3011, 3201–3219, 3403–3406, Standards of the United States Postal 3621, 3626, 5001. Service, Domestic Mail Manual is on SOURCE: 44 FR 39852, July 6, 1979, unless file at the National Archives and otherwise noted. Records Administration (NARA). For 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. Section 552(a) of title 5, U.S.C., relat- (c) Subscriptions to the Mailing ing to the public information require- Standards of the United States Postal ments of the Administrative Procedure Service, Domestic Mail Manual can be Act, provides in pertinent part that ‘‘* purchased by the public from the Su- * * matter reasonably available to the perintendent of Documents, Wash- class of persons affected thereby is ington, DC 20402–9375. 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 conformity with that provision, and with § 111.3 Amendments to the Mailing 39 U.S.C. section 410(b)(1), and as pro- Standards of the United States 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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00036 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 111.3

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 for Federal Register (b) When the Postal Service invites 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, 56 FR 56013 Mailing Standards of the United States 1991. Postal Service, Domestic Mail Manual 41 ...... December 15, 57 FR 21611 1991. in full text or referenced at the place 42 ...... March 15, 1992 .. 57 FR 21613 where they would appear if they be- 43 ...... June 21, 1992 ..... 57 FR 37884 come final regulations. 44 ...... September 20, 61 FR 67218 1992. (e) Announcements of changes to the 45 ...... December 20, 61 FR 67218 Mailing Standards of the United States 1992. Postal Service, Domestic Mail Manual 46 ...... July 1, 1993 ...... 61 FR 67218 not published in the FEDERAL REGISTER 47 ...... April 10, 1994 ..... 61 FR 67218 48 ...... January 1, 1995 .. 61 FR 67218 as provided in paragraphs (a) and (b) of 49 ...... September 1, 61 FR 67218 this section and not published in the 1995.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00037 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 111.4 39 CFR Ch. I (7–1–06 Edition)

Transmittal letter for Dated Federal Register § 111.4 Approval of the Director of the issue publication Federal Register. 50 ...... July 1, 1996 ...... 61 FR 60190 Incorporation by reference of the 51 ...... January 1, 1997 .. 61 FR 64618 52 ...... July 1, 1997 ...... 62 FR 30457 publication now titled the Mailing 53 ...... January 1, 1998 .. 62 FR 63851 Standards of the United States Postal 54 ...... January 10, 1999 64 FR 39 Service, Domestic Mail Manual was ap- 55 ...... January 10, 2000 65 FR 1321 56 ...... January 7, 2001 .. 66 FR 8370 proved by the Director of the Federal 57 ...... June 30, 2002 ..... 67 FR 46875 Register under 5 U.S.C 552(a) and 1 CFR 58 ...... August 10, 2003 68 FR 66018 part 51 on March 23, 2005. Premier Edition ...... January 6, 2005 .. 70 FR 14535 (5 U.S.C. 552(a); 39 U.S.C. 401, 404, 407, 408, [45 FR 40115, June 13, 1980] 3001–3011, 3201–3218, 3403–3405, 3601, 3621; 42 U.S.C. 1973cc–13, 1973cc–14) EDITORIAL NOTE: For Federal Register citations affecting § 111.3, see the List of CFR [49 FR 47389, Dec. 4, 1984, as amended at 70 Sections Affected, which appears in the FR 14535, Mar. 23, 2005] Finding Aids section of the printed volume and on GPO Access. § 111.5 [Reserved]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00038 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER D—ORGANIZATION AND ADMINISTRATION

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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00039 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 211.4 39 CFR Ch. I (7–1–06 Edition)

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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00040 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 221.3

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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00041 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 221.4 39 CFR Ch. I (7–1–06 Edition)

(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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00042 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 222.2

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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00043 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 222.3 39 CFR Ch. I (7–1–06 Edition)

(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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00044 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 230.1

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 with Subpoenas, Summonses, and AUTHORITY: 5 U.S.C. App.3; 39 U.S.C. 401(2) Court Orders by Postal Employees and 1001. 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 230.10 What do these rules govern? Authority 230.11 What special definitions apply to these rules? § 230.1 Establishment and authority. 230.12 Can Office of Inspector General employees testify or produce documents (a) There is established, pursuant to that would assist me in my civil pro- the Inspector General Act of 1978, as ceeding? amended (5 U.S.C. App.3), and 39 U.S.C. 230.13 Why are restrictions on Office of In- 410, an independent Office of Inspector spector General employees in civil pro- General. ceedings necessary? (b) The Inspector General reports di- 230.14 Who owns the written or recorded rectly to the nine presidentially ap- notes, memoranda, reports, and transcriptions made pursuant to an official pointed Governors and shall not be su- investigation, audit, or review conducted pervised by, nor report to, the Post- by an employee of the Office of Inspector master General and/or any designee ap- General? pointed by the Postmaster General. 230.15 What must an Office of Inspector (c) The Office of Inspector General General employee do if served with a de- includes an Inspector General, an As- mand requiring the production of docu- sistant Inspector General for Audit, ments or an appearance in court? 230.16 Is there a prohibition on presenting and an Assistant Inspector General for Office of Inspector General reports or Investigations. The Office of Inspector records during an employee’s testimony? General maintains its own legal coun- 230.17 If an attempt is made to compel pro- sel independent of the Postal Service duction of reports and records during the Law Department for matters that are employee’s testimony, what is an Office within the jurisdiction of the Office. of Inspector General employee directed (d) The Office of Inspector General is to do? responsible for detecting and pre- 230.18 If authorization to testify or produce documents is not obtained by the em- venting fraud, waste, and abuse in the ployee, what is the employee directed to programs and operations of the Postal do? Service, and for reviewing existing and 230.19 What criteria will the authorizing of- proposed legislation and regulations re- ficial use to determine whether to au- lating to the programs and operations thorize testimony or production of docu- of the Postal Service. ments? (e) The Inspector General has over- 230.20 What records will not be released? 230.21 May the General Counsel to the In- sight responsibilities for all activities spector General and/or a U.S. Depart- of the Postal Inspection Service. The ment of Justice attorney represent the Chief Postal Inspector must promptly employee in any appearance? 35

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00045 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 230.2 39 CFR Ch. I (7–1–06 Edition)

report to the Inspector General signifi- § 230.3 Cooperation with the Office of cant activities and other information Inspector General. related to the Inspection Service as re- (a) All Postal Service employees quired by law. shall cooperate with all audits, re- (f) The Inspector General has sole reviews, and investigations conducted by sponsibility for directing the Office of the Office of Inspector General. Delib- Inspector General, including the au- erately submitting information known thority to select, appoint, and employ to be false or misleading to the Office such officers and employees that the of Inspector General or failing to co- Inspector General deems necessary and operate with all audits, reviews, and appropriate to fulfill the mission of the investigations conducted by the Office Office. In addition, the Inspector Gen- of Inspector General may be grounds eral may delegate to such officers and for disciplinary or other legal action. employees of the Inspector General (b) Any employee who has authority such powers, duties, and responsibil- to take, direct another to take, rec- ities, as the Inspector General deems ommend or approve any personnel ac- necessary and appropriate for the prop- tion shall not retaliate against any emer functioning of the Office. ployee as a reprisal for cooperating and (g) All employees in the Office of In- assisting with any Office of Inspector spector General shall take and sub- General audit, review, or investigation scribe to the oath of office required of (including reporting facts or informa- all Postal Service employees under 39 tion to the Office of Inspector General U.S.C. 1011, and the Inspector General, that leads to any audit, review, or in- or designee, is authorized to administer vestigation). such oath and affirmation. (h) The Inspector General has the au- § 230.4 Arrest and investigative powers of criminal investigators. thority to enter into contracts or other arrangements with public agencies and (a) Under the authority of 18 U.S.C. with private entities, and to make such 3061, criminal investigators employed payments as may be necessary to carry by the Office of Inspector General are out the duties and responsibilities of authorized to perform the following the Office of Inspector General. functions in connection with their offi- (i) The Inspector General may hire cial duties: 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 § 230.2 Access to information and to be arrested has committed or is other responsibilities. committing such a felony; (4) Carry firearms; and (a) The Inspector General has author- (5) Make seizures of property as pro- ity to have access to all postal records, vided by law. reports, audits, reviews, documents, (b) Administrative subpoenas may be papers, information, and other mate- served by delivering a copy to a person rial relating to any matter related to or by mailing a copy to the person’s the responsibilities of the Inspector last known address. For the purposes of General; this provision, delivery of a copy in- (b) The Inspector General shall be the cludes handing it to the party or leav- Investigating Official for purposes of ing it at the party’s office or residence the Program Fraud Civil Remedies Act. with a person of suitable age and discretion employed or residing therein.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00046 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 230.10

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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00047 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 230.11 39 CFR Ch. I (7–1–06 Edition)

§ 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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00048 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 230.19

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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00049 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 230.20 39 CFR Ch. I (7–1–06 Edition)

(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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00050 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 231.1

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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00051 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 231.2 39 CFR Ch. I (7–1–06 Edition)

(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; 21 U.S.C. 802, (3) Except as otherwise ordered, prop- 844; 39 U.S.C. 401, 403(b)(3), 404(a)(7); 40 U.S.C. erties must be closed to the public 1315; Sec. 811, Pub. L. 109–115, 119 Stat. 2396. 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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00052 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 232.1

(e) Disturbances. Disorderly conduct, natures on petitions, polls, or surveys or conduct which creates loud and un- (except as otherwise authorized by usual noise, or which impedes ingress Postal Service regulations), are prohib- to or egress from post offices, or other- ited. These prohibitions do not apply wise obstructs the usual use of en- to: trances, foyers, corridors, offices, ele- (i) Commercial or nonprofit activi- vators, stairways, and parking lots, or ties performed under contract with the which otherwise tends to impede or dis- Postal Service or pursuant to the pro- turb the public employees in the per- visions of the Randolph-Sheppard Act; formance of their duties, or which oth- (ii) Posting notices on bulletin erwise impedes or disturbs the general boards as authorized in § 243.2(a) of this public in transacting business or ob- chapter; taining the services provided on prop- (iii) The solicitation of Postal Serv- erty, is prohibited. ice and other Federal military and ci- (f) Gambling. Participating in games vilian personnel for contributions by for money or other personal property, recognized agencies as authorized by the operation of gambling devices, the the Manual on Fund Raising Within conduct of a lottery or pool, or the sell- the Federal Service, issued by the ing or purchasing of lottery tickets, is Chairman of the U.S. Civil Service prohibited on postal premises. This Commission under Executive Order prohibition does not apply to the vend- 10927 of March 13, 1961. ing or exchange of State Lottery tick- (2) Solicitations and other actions ets at vending facilities operated by li- which are prohibited by paragraph censed blind persons where such lot- (h)(1) of this section when conducted on teries are authorized by state law. (See Postal Service property should not be Domestic Mail Manual 123.351 and directed by mail or telephone to postal 123.42; Administrative Support Manual employees on Postal Service property. 221.42; Regional Instructions, Part 782, The Postal Service will not accept or section IV G 2c.) distribute mail or accept telephone (g) Alcoholic beverages, drugs, and calls directed to its employees which smoking. (1) A person under the influ- are believed to be contrary to para- ence of an alcoholic beverage or any graph (h)(1) of this section. drug that has been defined as a ‘‘con- (3) Leafleting, distributing lit- trolled substance’’ may not enter post- erature, picketing, and demonstrating al property or operate a motor vehicle by members of the public are prohib- on postal property. The possession, ited in lobbies and other interior areas sale, or use of any ‘‘controlled sub- of postal buildings open to the public. stance’’ (except when permitted by Public assembly and public address, ex- law) or the sale or use of any alcoholic cept when conducted or sponsored by beverage (except as authorized by the the Postal Service, are also prohibited Postmaster General or designee) on in lobbies and other interior areas of postal premises is prohibited. The term postal building open to the public. ‘‘controlled substance’’ is defined in (4) Voter registration. Voter registra- section 802 of title 21 U.S.C. tion may be conducted on postal prem- (2) Smoking (defined as having a ises only with the approval of the post- lighted cigar, cigarette, pipe, or other master or installation head provided smoking material) is prohibited in all that all of the following conditions are postal buildings and office space, in- met: cluding public lobbies. (i) The registration must be con- (h) Soliciting, electioneering, collecting ducted by government agencies or non- debts, vending, and advertising. (1) Solic- profit civic leagues or organizations iting alms and contributions, cam- that operate for the promotion of so- paigning for election to any public of- cial welfare but do not participate or fice, collecting private debts, soliciting intervene in any political campaign on and vending for commercial purposes behalf of any candidate or political (including, but not limited to, the party for any public office. vending of newspapers and other publi- (ii) Absolutely no partisan or polit- cations), displaying or distributing ical literature may be available, dis- commercial advertising, collecting sig- played, or distributed. This includes

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00053 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 232.1 39 CFR Ch. I (7–1–06 Edition)

photographs, cartoons, and other voked by any state or territory shall likenesses of elected officials and cannot drive any vehicle in or on property didates for public office. during such period of suspension or (iii) The registration is permitted revocation. only in those areas of the postal prem- (3) Drivers of all vehicles in or on ises regularly open to the public. property shall drive in a careful and (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. No person exterior spaces. while on postal property may carry (i) Photographs for news, advertising, firearms, other dangerous or deadly or commercial purposes. Except as pro- weapons, or explosives, either openly hibited by official signs or the direc- or concealed, or store the same on tions of security force personnel or postal property, except for official pur- other authorized personnel, or a Fed- poses. eral court order or rule, photographs (m) Nondiscrimination. There must be for news purposes may be taken in en- no discrimination by segregation or trances, lobbies, foyers, corridors, or otherwise against any person or per- auditoriums when used for public meet- sons because of race, color, religion, ings. Other photographs may be taken national origin, sex, age (persons 40 only with the permission of the local years of age or older are protected), re- postmaster or installation head. prisal (discrimination against a person (j) Dogs and other animals. Dogs and for having filed or for having partici- other animals, except those used to as- pated in the processing of an EEO com- sist persons with disabilities, must not plaint—29 CFR 1613.26l–262), or physical be brought upon postal property for or mental handicap, in furnishing, or other than official purposes. by refusing to furnish to such person or (k) Vehicular and pedestrian traffic. (1) persons the use of any facility of a pub- Drivers of all vehicles in or on property lic nature, including all services, privi- shall be in possession of a current and leges, accommodations, and activities valid state or territory issued driver’s provided on postal property. license and vehicle registration, and (n) Conduct with regard to meetings of the vehicle shall display all current the Board of Governors. (1) Without the and valid tags and licenses required by permission of the chairman no person the jurisdiction in which it is reg- may participate in, film, televise, or istered. broadcast any portion of any meeting (2) Drivers who have had their privi- of the Board or any subdivision or com- lege or license to drive suspended or re- mittee of the Board. Any person may

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00054 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 232.1

electronically record or photograph a Inaugural Committee as defined in 36 meeting, as long as that action does U.S.C. 721. not tend to impede or disturb the mem- (p) Penalties and other law. (1) Alleged bers of the Board in the performance of violations of these rules and regula- their duties, or members of the public tions are heard, and the penalties pre- while attempting to attend or observe scribed herein are imposed, either in a a meeting. Federal district court or by a Federal (2) Disorderly conduct, or conduct magistrate in accordance with applica- which creates loud or unusual noise, ble court rules. Questions regarding 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 fine of not more tempting to attend or observe a meet- than $50 or imprisonment of not more ing of the Board or of any subdivision, than 30 days, or both. Nothing con- or committee of the Board, is prohib- tained in these rules and regulations ited. shall be construed to abrogate any (3) Any person who violates para- other Federal laws or regulations of graph (n) (1) or (2) of this section may, 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 such special police powers pro- which the violation occurred. vided by 40 U.S.C. 1315(b)(2) as have (4) A copy of the rules of this section been given to the security force by the governing conduct on postal property, Postal Service and shall be responsible including the rules of this paragraph for enforcing the regulations in this appropriately highlighted, shall be section in a manner that will protect posted in prominent locations at the Postal Service property. public entrances to postal property and (2) Local postmasters and installa- outside the meeting room at any meet- tion heads may, pursuant to 40 U.S.C. ing of the Board of Governors or of any 1315(d)(3) and with the approval of the subdivision or committee of the Board. chief postal inspector or his designee, (o) Depositing literature. Depositing or enter into agreements with State and posting handbills, flyers, pamphlets, local enforcement agencies to insure signs, poster, placards, or other lit- that these rules and regulations are en- erature, except official postal and forced in a manner that will protect other Governmental notices and an- Postal Service property. nouncements, on the grounds, walks, (3) Postal Inspectors, Office of In- driveways, parking and maneuvering spector General Criminal Investiga- areas, exteriors of buildings and other structures, or on the floors, walls, tors, and other persons designated by stairs, racks, counters, desks, writing the Chief Postal Inspector may like- tables, window-ledges, or furnishings in wise enforce regulations in this sec- interior public areas on postal prem- tion. ises, is prohibited. This prohibition [37 FR 24346, Nov. 16, 1972, as amended at 38 does not apply to: FR 27824, Oct. 9, 1973; 41 FR 23955, June 14, (1) Posting notices on bulletin boards 1976; 42 FR 17443, Apr. 1, 1977; 43 FR 38825, as authorized in § 243.2(a) of this chap- Aug. 31, 1978; 46 FR 898, Jan. 5, 1981. Redesig- ter; nated and amended at 46 FR 34330, July 1, 1981; 47 FR 32113, July 26, 1982; 53 FR 29460, (2) Interior space assigned to tenants Aug. 5, 1988; 54 FR 20527, May 12, 1989; 57 FR for their exclusive use; 36903, Aug. 17, 1993; 57 FR 38443, Aug. 25, 1992; (3) Posting of notices by U.S. Govern- 63 FR 34600, June 25, 1998; 70 FR 72078, Dec. 1, ment-related organizations such as the 2005; 71 FR 11161, Mar. 6, 2006]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 233 39 CFR Ch. I (7–1–06 Edition)

PART 233—INSPECTION SERVICE ment between the Attorney General AUTHORITY and the Postal Service, in the enforcement of other laws of the United Sec. States, if the Attorney General deter- 233.1 Arrest and investigative powers of mines that the violation of such laws Postal Inspectors. will have a detrimental effect upon the 233.2 Circulars and rewards. operations of the Postal Service. 233.3 Mail covers. (c) Administrative subpoenas may be 233.4 Withdrawal of mail privileges. served by delivering a copy to a person 233.5 Requesting financial records from a financial institution. or by mailing a copy to his or her last 233.6 Test purchases under 39 U.S.C. 3005(e). known address. For the purposes of 233.7 Forfeiture authority and procedures. this provision, delivery of a copy in- 233.8 Expedited forfeiture proceedings for cludes handing it to the party or leav- property seized for administrative for- ing it at the party’s office or residence feiture involving controlled substances with a person of suitable age and dis- in personal use quantities. cretion employed or residing therein. 233.9 Expedited release of conveyances being forfeited in a judicial forfeiture Service by mail is complete upon mail- proceeding for a drug-related offense. ing. 233.10 Notice provisions. (d) In conducting any investigation, 233.11 Mail reasonably suspected of being Postal Inspectors are authorized to ac- dangerous to persons or property. cept, maintain custody of, and deliver 233.12 Civil penalties. mail. AUTHORITY: 39 U.S.C. 101, 102, 202, 204, 401, [36 FR 4762, Mar. 12, 1971, as amended at 38 402, 403, 404, 406, 410, 411, 1003, 3005(e)(1); 12 FR 19124, July 18, 1973. Redesignated at 46 FR U.S.C. 3401–3422; 18 U.S.C. 981, 1956, 1957, 2254, 34330, July 1, 1981; 52 FR 12901, Apr. 20, 1987; 3061; 21 U.S.C. 881; Omnibus Budget Rec- 56 FR 55823, Oct. 30, 1991; 60 FR 5581, Jan. 30, onciliation Act of 1996, sec. 662 (Pub. L. No. 1995; 67 FR 16024, Apr. 4, 2002] 104–208).

§ 233.1 Arrest and investigative powers § 233.2 Circulars and rewards. of Postal Inspectors. (a) Wanted circulars. The Inspection (a) Authorization. Postal Inspectors Service issues wanted circulars to as- are authorized to perform the following sist in locating and arresting fugitive functions in connection with their offi- postal offenders. Post these circulars in cial duties: the most conspicuous place in the post (1) Serve warrants and subpoenas office lobby and in other prominent issued under the authority of the places. Post near the Notice of Reward United States; sign. Telephone or telegraph imme- (2) Make arrests without warrant for diately to the postal inspector in offenses against the United States charge any information on the possible committed in their presence; location of the person wanted. Remove (3) Make arrests without warrant for and destroy circulars immediately felonies cognizable under the laws of when notified of their cancellation or the United States if they have reason- when the circular is not listed in the able grounds to believe that the person periodic Postal Bulletin notices of cur- to be arrested has committed or is rent wanted circulars. committing such a felony; (b) Rewards. (1) Rewards will be paid (4) Carry firearms; and up to the amounts and under the condi- (5) Make seizures of property as pro- tions stated in Poster 296, Notice of Re- vided by law. ward, for the arrest and conviction of (b) Limitations. The powers granted persons for the following postal of- by paragraph (a) of this section shall be fenses: exercised only— (i) Robbery or attempted robbery. (1) In the enforcement of laws regard- (ii) Mailing or causing to be mailed ing property in the custody of the bombs, explosives, poison, weapons of Postal Service, property of the Postal mass destruction, or controlled sub- Service, the use of the mails, and other stances. postal offenses; and (iii) Post office burglary. (2) To the extent authorized by the (iv) Stealing or unlawful possession Attorney General pursuant to agree- of mail or money or property of the

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.2

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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.3 39 CFR Ch. I (7–1–06 Edition)

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,

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.3

(iv) Obtain evidence of a violation or (9) Protection of the national security attempted violation of a postal statute, means to protect the United States or from any of the following actual or po- (v) Assist in the identification of tential threats to its security by a for- property, proceeds or assets forfeitable eign power or its agents: under law. (i) An attack or other grave, hostile (2) For the purposes of § 233.3 record is act; a transcription, photograph, photocopy (ii) Sabotage, or international ter- or any other facsimile of the image of rorism; or the outside cover, envelope, wrapper, (iii) Clandestine intelligence activi- or contents of any class of mail. ties, including commercial espionage. (3) Sealed mail is mail on which appro- (10) Emergency situation refers to cir- priate postage is paid, and which under cumstances which require the imme- postal laws and regulations is included diate release of information to prevent within a class of mail maintained by the loss of evidence or in which there is the Postal Service for the transmission a potential for immediate physical of mail sealed against inspection, in- harm to persons or property. cluding First-Class Mail, Express Mail, (d) Authorizations—Chief Postal In- international letter mail, and spector. (1) The Chief Postal Inspector mailgram messages. is the principal officer of the Postal Service in the administration of all (4) Unsealed mail is mail on which ap- matters governing mail covers. The propriate postage for sealed mail has Chief Postal Inspector may delegate not been paid and which under postal any or all authority in this regard to laws or regulations is not included not more than two designees at Inspec- within a class of mail maintained by tion Service Headquarters. the Postal Service for the transmission (2) Except for national security mail of mail sealed against inspection. Un- covers, the Chief Postal Inspector may sealed mail includes second-, third-, also delegate any or all authority to and fourth-class mail, and inter- the Manager, Inspector Service Oper- national parcel post mail. ations Support Group, and, for emer- (5) is any person who has fled Fugitive gency situations, to Inspectors in from the United States or any State, Charge. The Manager, Inspection Serv- the District of Columbia, territory or ice Operations Support Group, may del- possession of the United States, to egate this authority to no more than avoid prosecution for a crime, to avoid two designees at each Operations Sup- punishment for a crime, or to avoid port Group. giving testimony in a criminal pro- (3) All such delegations of authority ceeding. shall be issued through official, written (6) Crime, for the purposes of this sec- directives. Except for delegations at tion, is any commission of an act or Inspection Service Headquarters, such the attempted commission of an act delegations shall only apply to the geo- that is punishable by law by imprison- graphic areas served by the Manager, ment for a term exceeding one year. Inspection Service Operation Support (7) Postal statute refers to a statute Group, or designee. describing criminal activity, regardless (e) The Chief Postal Inspector, or his of the term of imprisonment, for which designee, may order mail covers under the Postal Service has investigative the following circumstances: authority, or which is directed against (1) When a written request is received the Postal Service, its operations, pro- from a postal inspector that states rea- grams, or revenues. son to believe a mail cover will produce (8) Law enforcement agency is any au- evidence relating to the violation of a thority of the Federal Government or postal statute. any authority of a State or local gov- (2) When a written request is received ernment, one of whose functions is to: from any law enforcement agency in (i) Investigate the commission or at- which the requesting authority speci- tempted commission of acts consti- fies the reasonable grounds to dem- tuting a crime, or onstrate the mail cover is necessary to: (ii) Protect the national security. (i) Protect the national security,

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.3 39 CFR Ch. I (7–1–06 Edition)

(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 warrant, even though it may contain forfeitable because of a violation of criminal or otherwise nonmailable criminal law, a new mail cover order matter, or furnish evidence of the com- must be requested consistent with mission of a crime, or the violation of these regulations. a postal statute. (8) Any national security mail cover (2) No employee of the Postal Service request must be approved personally by shall open or inspect the contents of the head of the law enforcement agen- any unsealed mail, except for the pur- cy requesting the cover or one designee pose of determining: at the agency’s headquarters level. The (i) Payment of proper postage, or head of the agency shall notify the (ii) Mailability. Chief Postal Inspector in writing of (3) No mail cover shall include mat- such designation. ter mailed between the mail cover sub- (h) Records. (1) All requests for mail ject and the subject’s known attorney. covers, with records of action ordered (4) No officer or employee of the thereon, and all reports issued pursu- Postal Service other than the Chief ant thereto, shall be deemed within the Postal Inspector, Manager, Inspection custody of the Chief Postal Inspector. Service Operations Support Group, and However, the physical storage of this

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.4

data shall be at the discretion of the dentiary basis, may issue a mail-stop Chief Postal Inspector. order against anyone seeking mailed (2) If the Chief Postal Inspector, or remittance of money or property by his designee, determines a mail cover means of a false-representation or lot- was improperly ordered, all data ac- tery scheme. Such orders provide for quired while the cover was in force return of mail and refund of postal shall be destroyed, and the requesting money orders to remitters. authority notified of the discontinu- (2) Enforcement. Notice of these or- ance of the mail cover and the reasons ders, including any necessary instruc- therefor. tions on enforcement responsibilities (3) Any data concerning mail covers and procedures, is published in the shall be made available to any mail Postal Bulletin. Generally, an order cover subject in any legal proceeding against a domestic enterprise is en- through appropriate discovery proce- forced only by the post office des- dures. ignated in the order. All personnel (4) The retention period for files and processing mail for dispatch abroad as- records pertaining to mail covers shall sist in enforcing orders against foreign be 8 years. enterprises by forwarding mail ad- (i) Reporting to requesting authority. dressed to such enterprises to des- Once a mail cover has been duly or- ignated post offices. dered, authorization may be delegated (b) Fictitious name or address and not to any employee in the Postal Inspec- residents of the place of address orders— tion Service to transmit mail cover re- (1) Issuance. Pursuant to 39 U.S.C. 3003, ports directly to the requesting author- 3004, when there is satisfactory evi- ity. dence that mail is addressed to a ficti- (j) Review. (1) The Chief Postal In- tious name, title, or address used for spector, or his designee at Inspection any unlawful business, and no one has Service Headquarters shall periodically established a right to have the mail de- review mail cover orders issued by the livered to him, or that mail is ad- Manager, Inspection Service Oper- dressed to places not the residence or ations Support Group or their des- regular business address of the person ignees to ensure compliance with these for whom they are intended to enable regulations and procedures. the person to escape identification, the (2) The Chief Postal Inspector shall Judicial Officer may, pursuant to Part select and appoint a designee to con- 964, order that the mail be returned to duct a periodic review of national secu- the sender. rity mail cover orders. (2) Notice. (i) The Chief Postal Inspec- (3) The Chief Postal Inspector’s de- tor or his delegate must give notice to termination in all matters concerning the addressee of mail withheld from de- mail covers shall be final and conclu- livery pursuant to 39 U.S.C. 3003, 3004 sive and not subject to further admin- that such action has been taken and istrative review. advise him that he may: (k) Military postal system. Section (A) Obtain such mail upon presenting 233.3 does not apply to the military proof of his identity and right to re- postal system overseas or to persons ceive such mail, or performing military postal duties over- (B) Petition the Judicial Officer for seas. Information about regulations the return of such mail. (ii) The notice prescribed by the Department of De- must be in writing and served by per- fense for the military postal system sonal service upon the addressee or by overseas may be obtained from the De- Certified Mail (Return Receipt Re- partment of Defense. quested) and by First Class Mail. [58 FR 36599, July 8, 1993, as amended at 61 (3) Enforcement. Notice of any order FR 42557, Aug. 16, 1996] issued pursuant to 39 U.S.C. 3003, 3004, and any necessary implementing in- § 233.4 Withdrawal of mail privileges. structions, are published in the Postal (a) False representation and lottery or- Bulletin. ders—(1) Issuance. Pursuant to 39 U.S.C. [45 FR 1613, Jan. 8, 1980. Redesignated at 46 3005, the Judicial Officer of the Postal FR 34330, July 1, 1981, and amended at 53 FR Service, acting upon a satisfactory evi- 1780, Jan. 22, 1988]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.5 39 CFR Ch. I (7–1–06 Edition)

§ 233.5 Requesting financial records (ii) The identity of the customer or from a financial institution. customers to whom the records per- (a) Definitions. The terms used in this tain; section have the same meaning as (iii) A reasonable description of the similar terms used in the Right to Fi- records sought; and nancial Privacy Act of 1978, Title XI of (iv) Any additional information Pub. L. 95–630. Act means the Right to which may be appropriate—e.g., the Financial Privacy Act of 1978. date when the opportunity for the cus- (b) Purpose. The purpose of these reg- tomer to challenge the formal written ulations is: (1) To authorize the Inspec- request expires, the date when the In- tion Service Department of the U.S. spection Service Department expects Postal Service to request financial to present a certificate of compliance records from a financial institution with the applicable provisions of the pursuant to the formal written request Act, the name and title of the indi- procedure authorized by section 1108 of vidual (if known) to whom disclosure is the Act and (2) to set forth the condi- to be made. tions under which such request may be (2) In cases where customer notice is made. delayed by court order, a copy of the (c) Authorization. The Inspection court order must be attached to the Service Department is authorized to formal written request. request financial records of any cus- (e) Certification. Before obtaining the tomer from a financial institution pur- requested records following a formal suant to a formal written request written request, a supervisory official under the Act only if: authorized to issue a request must cer- (1) No administrative summons or tify in writing to the financial institu- subpoena authority reasonably appears tion that the Inspection Service De- to be available to the Inspection Serv- partment has complied with the appli- ice Department to obtain financial cable provisions of the Act. records for the purpose for which the [44 FR 39161, July 5, 1979. Redesignated at 46 records are sought; FR 34330, July 1, 1981] (2) There is reason to believe that the records sought are relevant to a legiti- § 233.6 Test purchases under 39 U.S.C. mate law enforcement inquiry and will 3005(e). further that inquiry; (a) Scope. This section, which imple- (3) The request is issued by a super- ments 39 U.S.C. 3005(e), supplements visory official of a rank designated by any postal regulations or instructions the Chief Postal Inspector. Officials so regarding test purchases or test pur- designated shall not delegate this au- chase procedures. It is limited to test thority to others; purchases conducted according to 39 (4) The request adheres to the re- U.S.C. 3005(e). quirements set forth in paragraph (d) (b) Definitions—(1) Test purchase. The of this section; and acquisition of any article or service, (5) The notice requirements set forth for which money or property are in section 1108(4) of the Act, or the re- sought through the mails, from the quirements pertaining to the delay of person or representative offering the notice in section 1109 of the Act, are article or service. The purpose is to in- satisfied, except in situations (e.g., sec- vestigate possible violations of postal tion 1113(g)) where no notice is re- laws. quired. (2) Test Purchase Request. A written (d) Written request. (1) The formal re- document requesting the sale of an ar- quest must be in the form of a letter or ticle or service pursuant to 39 U.S.C. memorandum to an appropriate official 3005(e) and containing the following in- of the financial institution and must formation: contain: (i) The name and address of the per- (i) The signature of the issuing offi- son, firm, or corporation to whom the cial and the official’s name, title, busi- request is directed; ness address, and business phone num- (ii) The name, title, signature, office ber; mailing address, and office telephone

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00062 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.7

number of the person making the re- § 233.7 Forfeiture authority and proce- quest; dures. (iii) A description of the article or (a) Designation of officials having for- service requested which is sufficient to feiture authority. The Chief Postal In- enable the person to whom the request spector is authorized to perform all du- is made to identify the article or serv- ties and responsibilities necessary on ice being sought; behalf of the Postal Service to enforce (iv) A statement of the nature of the 18 U.S.C. 981, 2254, and 21 U.S.C. 881, to conduct under investigation; delegate all or any part of this author- (v) A statement that the article or ity to Deputy Chief Inspectors, Inspec- service must be tendered at the time tors in Charge, and Inspectors of the and place stated in the purchase re- Postal Inspection Service, and to issue 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 maintained by the Postal Inspection quest is made or to his or its represent- Service. The inventory should occur ative. It must be accompanied by a within seven days of the seizure. The check or money order in the amount inventory must, at a minimum, iden- for which the article or service is of- tify all property seized, state the exact fered for sale, made payable to the per- location of the property at the time of son, firm or corporation making the its seizure, and describe in detail the offer. condition of the property. A written re- (2) The person serving the Test Pur- ceipt containing such information and chase Request must make and sign a identifying the Postal Inspector who record, stating the date and place of conducted the seizure must be provided service and the name of the person to the party from whom the property served. The person making the request was seized, or the party’s agent or rep- must retain a copy of the Test Pur- resentative, at the time of the seizure chase Request, the record of service, or as soon thereafter as is practicable. and the money order receipt or a pho- (d) Custody. Custody of all property tocopy of the issued check or the can- seized for forfeiture under the statutes celled check. Alternatively, the re- identified in paragraph (a) of this sec- quest may be made by certified mail. tion is maintained by the U.S. Mar- (d) Authorizations. The Chief Postal shals Service, except property held for Inspector is the principal officer of the evidentiary purposes; retained for offi- Postal Service for the administration cial use upon forfeiture; subject to eq- of all matters governing test purchases uitable transfer to federal, state or under this section. The Chief Inspector local law enforcement agencies; or subject to civil administrative forfeiture. may delegate any or all authority in (e) Appraisal. The Postal Inspection this regard to any or all postal inspec- Service must promptly obtain or com- tors. plete an appraisal of all seized prop- [49 FR 7230, Feb. 28, 1984; 49 FR 8250, Mar. 6, erty. The appraisal value is the fair 1984] market value of the property, which is

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.7 39 CFR Ch. I (7–1–06 Edition)

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. must provide the U.S. Attorney a com- (3) Upon receipt of the claim and plete written description of the prop- bond, the Postal Inspection Service erty, a statement of the facts and cir- must, upon determining that the docu- cumstances leading to the seizure of ments are in proper form and the sure- the property, including all facts and ties satisfactory, transmit the docu- documentation leading to the conclu- ments to the appropriate U.S. Attorney sion that the seized property is subject as provided in subsection (g). If the to forfeiture, and such additional infor- documents are not satisfactory, the mation as the U.S. Attorney may re- Postal Inspection Service must notify quire for the purpose of instituting a the party making the claim and may judicial forfeiture action. allow a reasonable time for correction. (h) Notice of seizure for property having If correction is not made within the a value of $500,000 or less, or for monetary time allowed for that purpose, the ad- instruments or for conveyances which ministrative forfeiture must proceed as were used to transport or store any con- though the claim and bond had not trolled substance; advertisement; declara- been tendered. tion of forfeiture. (1) The Postal Inspec- (4) Notice of administrative for- tion Service must cause written notice feiture proceedings containing the in- of the seizure of all property subject to formation required by subsection (h)(1)

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00064 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.7

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 forfeiture, then the Postal Service or mitigation process and are not in- the Marshals Service may order de- tended to create rights or entitlements struction or other disposition of the in favor of individuals seeking remis- property including alteration of the sion or mitigation. These regulations property into an article that is not pro- will apply to all decisions on petitions hibited. for remission or mitigation made on or (j) Remission or mitigation of adminis- after July 1, 1997. These regulations trative, civil, and criminal forfeitures—(1) will apply to decisions on requests for Authority, purpose, and scope—(i) Pur- reconsideration of a denial of a peti- pose. This section sets forth the proce- tion under paragraphs (j)(3)(x) and dures for Postal Inspection Service of- (3)(xi) of this section only if the initial ficials to follow when considering re- decision on the petition was made mission or mitigation of administra- under the provisions of this part effective forfeitures under the jurisdiction tive July 1, 1997. of the Postal Service. The purpose of (E) This section governs any petition these regulations is to provide a basis for remission or mitigation filed with for ameliorating the effects of for- the Chief Postal Inspector and super- feiture through the partial or total re- sedes any Postal Service regulation mission of forfeiture for individuals governing petitions for remission or

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00065 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.7 39 CFR Ch. I (7–1–06 Edition)

mitigation to the extent such regula- seizure through the last full month tion is inconsistent with this section. prior to the date of the decision on the (2) Definitions. As used in this part: petition. Where a rate of interest is set (i) The term administrative forfeiture forth in a security agreement, the rate means the process by which property of interest to be used in this computa- may be forfeited by an investigative tion will be the annual percentage rate agency rather than through judicial so specified in the security agreement proceedings. that is the basis of the lienholder’s in- (ii) The term appraised value means terest. In this computation, however, the estimated market value of an asset there shall be no allowances for attor- at the time and place of seizure if such neys’ fees, accelerated or enhanced in- or similar property was freely offered terest charges, amounts set by con- for sale between a willing seller and a tract as damages, unearned extended willing buyer. warranty fees, insurance, service con- (iii) The term Attorney General means tract charges incurred after the date of the Attorney General of the United seizure, allowances for dealer’s reserve, States or his or her designee. or any other similar charges. (iv) The term beneficial owner means (x) The term owner means the person a person with actual use of, as well as in whom primary title is vested or an interest in, the property subject to whose interest is manifested by the ac- forfeiture. tual and beneficial use of the property, (v) The term general creditor means even though the title is vested in an- one whose claim or debt is not secured other. A victim of an offense as defined by a specific right to obtain satisfac- in paragraph (j) (2)(xxi) of this section tion against the particular property may also be an owner if he or she has subject to forfeiture. a present legally cognizable ownership (vi) The term judgment creditor means interest in the property forfeited. A one who has obtained a judgment nominal owner of property will not be against the debtor but has not yet re- treated as its true owner if he or she is ceived full satisfaction of the judg- not its beneficial owner. ment. (xi) The term person means an indi- (vii) The term judicial forfeiture vidual, partnership, corporation, joint means either a civil or criminal pro- business enterprise, estate, or other ceeding in a United States District legal entity capable of owning prop- Court that may result in a final judg- erty. ment and order of forfeiture. (xii) The term petition means a peti- (viii) The term lienholder means a tion for remission or mitigation of for- creditor whose claim or debt is secured feiture under these regulations. This by a specific right to obtain satisfac- definition includes a petition for res- tion against the particular property toration of the proceeds of sale of for- subject to forfeiture. A lien creditor feited property and a petition for the qualifies as a lienholder if the lien: value of forfeited property placed into (A) Was established by operation of official use. law or contract; (xiii) The term petitioner means the (B) Was created as a result of an ex- person applying for remission, mitiga- change of money, goods, or services; tion, restoration of the proceeds of and sale, or for the appraised value of for- (C) Is perfected against the specific feited property under these regula- property forfeited for which remission tions. A petitioner may be an owner of or mitigation is sought (e.g., a real es- forfeited property as defined in para- tate mortgage, a mechanic’s lien). graph (j)(2)(x) of this section; a (ix) The term net equity means the lienholder as defined in paragraph amount of a lienholder’s monetary in- (j)(2)(viii) of this section; or a victim as terest in property subject to forfeiture. defined in paragraph (j)(2)(xxi) of this Net equity shall be computed by deter- section subject to the limitations of mining the amount of unpaid principal paragraph (j)(8) of this section. and unpaid interest at the time of sei- (xiv) The term Postal Service Fund zure, and by adding to that sum unpaid means the United States Postal Fund interest calculated from the date of established under 39 U.S.C. 2003.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00066 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.7

(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 (xix) The term Ruling Official means number of the person claiming an in- any official to whom decision making terest in the seized property who is authority has been delegated pursuant seeking remission or mitigation; to paragraph (j)(1)(ii) of this section. (2) The name of the seizing agency, (xx) The term seizing agency means the asset identifier number, and the the federal agency that seized the prop- date and place of seizure; erty or adopted the seizure of another (3) A complete description of the agency for federal forfeiture. property including make, model, and (xxi) The term victim means a person serial numbers, if any; and who has incurred a pecuniary loss as a (4) A description of the petitioner’s direct result of the commission of the interest in the property as owner, offense underlying a forfeiture. A drug lienholder, or otherwise, supported by user is not considered a victim of a original or certified bills of sale, con- drug trafficking offense under this defi- tracts, deeds, mortgages, or other doc- nition. A victim does not include one umentary evidence. who acquires a right to sue the perpe- (B) Any factual recitation or docu- trator of the criminal offense for any mentation of any type in a petition loss by assignment, subrogation, inher- must be supported by a sworn affidavit. itance, or otherwise from the actual (iv) Releases. In addition to the con- victim, unless that person has acquired tents of the petition for remission or an actual ownership interest in the for- mitigation set forth in paragraph feited property. (j)(3)(iii) of this section, upon request,

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00067 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.7 39 CFR Ch. I (7–1–06 Edition)

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 (1) It is postmarked or received by States Postal Service, 475 L’Enfant the office of the Ruling Official within Plaza SW, Washington, DC 20260–2100. ten (10) days from the receipt of the no- (B) The petition shall be sworn to by tice of the denial of the petition by the the petitioner or by the petitioner’s at- petitioner; and torney upon information and belief, (2) The request is based on informa- supported by the client’s sworn notice tion or evidence not previously consid- of representation pursuant to 28 U.S.C. ered that is material to the basis for 1746, as set out in paragraph (j)(9)(vii) the denial or presents a basis clearly of this section. demonstrating that the denial was er- (vi) Agency investigation. Upon receipt roneous. of a petition, the Postal Inspection (B) In no event shall a request for re- Service shall investigate the merits of consideration be decided by the same the petition and prepare a written re- Ruling Official who ruled on the origi- port containing the results of that in- nal petition. vestigation. This report shall be submitted to the Ruling Official for review (C) Only one request for reconsider- and consideration. ation of a denial of a petition shall be considered. (vii) Ruling. Upon receipt of the petition 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 cision shall be sent by certified mail to or lienholder in cases in which the peti- the petitioner, or, if represented by an tioner: attorney, to the petitioner’s attorney. (1) Did not know of the seizure prior A copy of the decision shall also be to the entry of a declaration of for- sent to the U.S. Marshals Service or feiture; and other property custodian. The written (2) Could not reasonably have known decision shall include the terms and of the seizure prior to the entry of a conditions, if any, upon which the re- declaration of forfeiture. mission or mitigation is granted and (B) Such a petition shall be sub- the procedures the petitioner must fol- mitted pursuant to paragraphs (j)(3)(ii) low to obtain release of the property or through (v) of this section within nine- the monetary interest therein. ty (90) days from the date the property (ix) Petitions denied. If the Ruling Of- is sold or otherwise disposed of. ficial denies a petition, a copy of the (4) Petitions in judicial forfeiture decision shall be sent by certified mail cases—(i) Procedure for filing petition. If to the petitioner, or, if represented by the forfeiture proceedings are judicial, an attorney, to the petitioner’s attor- a petition for remission or mitigation ney of record. A copy of the decision of a judicial forfeiture shall be ad- shall also be sent to the U.S. Marshals dressed to the Attorney General; shall Service or other property custodian. be sworn to by the petitioner or by the The written decision shall specify the petitioner’s attorney upon information reason that the petition was denied. and belief, supported by the client’s

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00068 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.7

sworn notice of representation pursu- ployment and in furtherance of the pe- ant to 28 U.S.C. 1746; and shall be sub- titioner’s business. mitted to the United States Attorney (C) The petitioner has the burden of for the district in which the judicial establishing the basis for granting a forfeiture proceedings are brought. A petition for remission or mitigation of petitioner also shall submit a copy of forfeited property, a restoration of pro- the petition to the Chief Postal Inspec- ceeds of sale or appraised value of for- tor if the Postal Inspection Service was feited property, or a reconsideration of the seizing agency. a denial of such a petition. Failure to (ii) Ruling. Department of Justice provide information or documents and regulations on petitions for remission to submit to interviews, as requested, or mitigation in judicial forfeiture may result in a denial of the petition. cases are stated in 29 CFR 9.4. (D) The Ruling Official shall presume (5) Criteria governing administrative re- a valid forfeiture and shall not consider mission and mitigation—(i) Remission. (A) whether the evidence is sufficient to The Ruling Official shall not grant re- support the forfeiture. mission of a forfeiture unless the peti- (E) Willful, materially false state- tioner establishes that: ments or information, made or fur- (1) The petitioner has a valid, good nished by the petitioner in support of a faith and legally cognizable interest in petition for remission or mitigation of 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 the forfeited property by statute. (If mitigation in lieu of a complete for- the applicable civil forfeiture statute feiture will promote the interest of jus- contains no innocent owner defense, tice and will not diminish the deter- the innocent owner provisions applica- rent effect of the law. Extenuating cir- ble to 21 U.S.C. 881(a)(4) shall apply.) cumstances justifying such a finding Unless otherwise provided by statute, include those circumstances that re- in the case of petitioners who acquired duce the responsibility of the peti- their interest in the property after the tioner for knowledge of the illegal ac- time of the violation underlying the tivity, knowledge of the criminal forfeiture, the question of whether the record of a user of the property, or fail- petitioner had knowledge of the viola- ure to take reasonable steps to prevent tion shall be determined as of the point the illegal use or acquisition by an- in time when the interest in the prop- other for some reason, such as a rea- erty was acquired. sonable fear of reprisal; or (B) The knowledge and responsibil- (2) Where the minimum standards for ities of petitioner’s representative, remission have been satisfied but the agent, or employee in paragraph overall circumstances are such that, in (j)(5)(i)(A)(2) of this section are im- the opinion of the Ruling Official, computed to the petitioner where the rep- plete relief is not warranted. resentative, agent, or employee was (B) The Ruling Official may in his or acting in the course of his or her em- her discretion grant mitigation to a

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.7 39 CFR Ch. I (7–1–06 Edition)

party involved in the commission of property without cost, and who is not the offense underlying the forfeiture in the business of lending money se- where certain mitigating factors exist, cured by property or of leasing or rent- including, but not limited to: The lack ing property for profit, shall be granted of a prior record or evidence of similar remission or mitigation of forfeiture in criminal conduct; if the violation does accordance with the provisions of para- not include drug distribution, manufac- graph (j)(5) of this section. turing, or importation, the fact that (iv) Lessors. A person engaged in the the violator has taken steps, such as business of leasing or renting real or drug treatment, to prevent further personal property on a long-term basis criminal conduct; the fact that the vio- with the right to sublease shall not be lation was minimal and was not part of entitled to remission or mitigation of a a larger criminal scheme; the fact that forfeiture of such property unless the the violator has cooperated with fed- lessor can demonstrate compliance eral, state, or local investigations re- with all the requirements of paragraph lating to the criminal conduct under- (j)(5) of this section. lying the forfeiture; or the fact that (v) Straw owners. A petition by any complete forfeiture of an asset is not person who has acquired a property in- necessary to achieve the legitimate terest recognizable under these regula- purposes of forfeiture. tions and who knew or had reason to (C) Mitigation may take the form of believe that the interest was conveyed a monetary condition or the imposition by the previous owner for the purpose of other conditions relating to the con- of circumventing seizure, forfeiture, or tinued use of the property, and the re- these regulations, shall be denied. A turn of the property, in addition to the petition by a person who purchases or imposition of any other costs that owns property for another who has a would be chargeable as a condition to record for related crimes as defined in remission. This monetary condition is paragraph (j)(2)(xvii) of this section, or considered as an item of cost payable a petition by a lienholder who knows by the petitioner, and shall be depos- or has reason to believe that the pur- ited into the Postal Service Fund as an chaser or owner of record is not the amount realized from forfeiture in ac- real purchaser or owner, shall be de- cordance with the applicable statute. If nied unless both the purchaser of the petitioner fails to accept the Rul- record and the real purchaser or owner ing Official’s mitigation decision or meet the requirements of paragraph any of its conditions, or fails to pay (j)(5) of this section. the monetary amount within twenty (20) days of the receipt of the decision, (vi) Judgment creditors. (A) A judg- the property shall be sold, and the ment creditor will be recognized as a monetary amount imposed and other lienholder if: costs chargeable as a condition to miti- (1) The judgment was duly recorded gation shall be subtracted from the before the seizure of the property for proceeds of the sale before transmit- forfeiture; ting the remainder to the petitioner. (2) Under applicable state or other (6) Special rules for specific peti- local law, the judgment constitutes a tioners—(i) General creditors. A general valid lien on the property that at- creditor may not be granted remission tached to it before the seizure of the or mitigation of forfeiture unless he or property for forfeiture; and she otherwise qualifies as a petitioner (3) The petitioner had no knowledge under these regulations. of the commission of any act or acts (ii) Rival claimants. If the beneficial giving rise to the forfeiture at the time owner of the forfeited property and the the judgment became a lien on the for- owner of a security interest in the feited property. same property each file a petition, and (B) A judgment creditor will not be if both petitions are found to be meri- recognized as a lienholder if the prop- torious, the claim of the beneficial erty in question is not property of owner shall take precedence. which the judgment debtor is entitled (iii) Voluntary bailments. A petitioner to claim ownership under applicable who allows another to use his or her state or other local law (e.g., stolen

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00070 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.7

property). A judgment creditor is enti- lease of the property to the recipient tled under these regulations to no more agency or foreign government. than the amount of the judgment, ex- (B) When the forfeited property is not clusive of any interest, costs, or other retained for official use or transferred fees including attorney’s fees associ- to another agency or foreign country ated with the action that led to the pursuant to law, the lienholder shall be judgment or its collection. notified by the Ruling Official of the (C) A judgment creditor’s lien must right to select either of the following be registered in the district where the alternatives: property is located if the judgment was (1) Return of property. The lienholder obtained outside the district. may obtain possession of the property (7) Terms and conditions of remission after paying the United States, and mitigation—(i) Owners. (A) An own- through the Ruling Official, the costs er’s interest in property that has been and expenses incident to the forfeiture, forfeited is represented by the property the amount, if any, by which the ap- itself or by a monetary interest equiva- praised value of the property exceeds lent to that interest at the time of sei- the lienholder’s net equity in the prop- zure. Whether the property or a mone- erty, and any amount specified in the tary equivalent will be remitted to an Ruling Official’s decision as a condi- owner shall be determined at the dis- tion to remit the property. The Ruling cretion of the Ruling Official. Official, at his or her discretion, may (B) If a civil judicial forfeiture action waive costs and expenses incident to against the property is pending, release the forfeiture. The Ruling Official shall of the property must await an appro- forward a copy of the decision, a priate court order. memorandum of disposition, and the (C) Where the government sells or original releases to the U.S. Marshals disposes of the property prior to the Service or other property custodian grant of the remission, the owner shall who shall thereafter release the prop- receive the proceeds of that sale, less erty to the lienholder; or any costs incurred by the government (2) Sale of Property and Payment to in the sale. The Ruling Official, at his Lienholder—Subject to the provisions of or her discretion, may waive the deduc- paragraph (j)(9)(i) of this section, upon tion of costs and expenses incident to sale of the property, the lienholder the forfeiture. may receive the payment of a mone- (D) Where the owner does not comply tary amount up to the sum of the with the conditions imposed upon re- lienholder’s net equity, less the ex- lease of the property by the Ruling Of- penses and costs incident to the for- ficial, the property shall be sold. Fol- feiture and sale of the property, and lowing the sale, the proceeds shall be any other monetary conditions im- used to pay all costs of the forfeiture posed. The Ruling Official, at his or her and disposition of the property, in ad- discretion, may waive costs and ex- dition to any monetary conditions im- penses incident to the forfeiture. posed. The remaining balance shall be (iii) If the lienholder does not notify paid to the owner. the Ruling Official of the selection of (ii) Lienholders. (A) When the for- one of the two options set forth above feited property is to be retained for of- in paragraph (j)(7)(ii)(B) of this section ficial use or transferred to a state or within twenty (20) days of the receipt local law enforcement agency or for- of such notification, the Ruling Official eign government pursuant to law, and shall direct the U.S. Marshal or other remission or mitigation has been property custodian to sell the property granted to a lienholder, the recipient of and pay the lienholder an amount up to the property shall assure that: the net equity, less the costs and ex- (1) In the case of remission, the lien penses incurred incident to the for- is satisfied as determined through the feiture and sale, and any monetary petition process; or conditions imposed. In the event a (2) In the case of mitigation, an lienholder subsequently receives a pay- amount equal to the net equity, less ment of any kind on the debt owed for any monetary conditions imposed, is which he or she has already received paid to the lienholder prior to the repayment as a result of the granting of

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00071 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.7 39 CFR Ch. I (7–1–06 Edition)

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 erty. an offense, who do not have a present (ii) Pecuniary loss. The amount of the ownership interest in the forfeited pecuniary loss suffered by a victim for which remission may be granted is lim- property that is clearly superior to ited to the fair market value of the that of other petitioner victims). The property of which the petitioner was provisions of this section apply only deprived as of the date of the occur- with respect to property forfeited pur- rence of the loss. No allowance shall be suant to statutes that explicitly au- made for interest foregone or for col- thorize restoration or remission of for- lateral expenses incurred to recover feited property to victims. Victims who lost property or to seek other rec- have a superior present legally cog- ompense. nizable ownership interest in forfeited (iii) Torts. A tort associated with ille- property may file petitions as other gal activity that formed the basis for owners, subject to the regulations set the forfeiture shall not be a basis for forth in paragraph (j)(7)(i) of this sec- remission, unless it constitutes the il- tion. The claims of such owner victims, legal activity itself, nor shall remis- like those of any other owners, shall sion be granted for physical injuries to have priority over the claims of any a petitioner or for damage to a peti- non-owner victims whose claims are tioner’s property. recognized pursuant to this section. (iv) Denial of petition. In the exercise (i) Qualifications to file. A victim, as of his or her discretion, the Ruling Of- defined in paragraph (j)(2)(xxi) of this ficial may decline to grant remission section, of an offense that was the un- where: derlying basis for the criminal, civil, or (A) There is substantial difficulty in administrative forfeiture of specific calculating the pecuniary loss incurred property, or a victim of a related of- by the victim or victims; fense, may be granted remission of the (B) The amount of the remission, if forfeiture of that property, if in addi- granted, would be small compared with tion to complying with the other appli- the amount of expenses incurred by the cable provisions of this section, the government in determining whether to victim satisfactorily demonstrates grant remission; or that: (C) The total number of victims is (A) A pecuniary loss of a specific large and the monetary amount of the amount has been directly caused by the remission so small as to make its criminal offense, or related offense, granting impractical. that resulted in the forfeiture, or by a (v) Pro rata basis. In granting remis- related offense, and that the loss is sion to multiple victims pursuant to supported by documentary evidence in- this section, the Ruling Official should cluding invoices and receipts; generally grant remission on a pro rata

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00072 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.7

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 multiple victims of related offenses, following order of priority, except that 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). property forfeitable under 18 U.S.C. (ii) Sale or disposition of property prior 981(a)(1)(C) or (a)(1)(D), the Ruling Offi- to ruling. If forfeited property has been cial may decline to grant a petition sold or otherwise disposed of prior to a filed by a petitioner in whole or in part ruling, the Ruling Official may grant due to the lack of sufficient forfeitable relief in the form of a monetary funds to satisfy both the petition and amount. The amount realized by the claims of the financial institution reg- sale of the property is presumed to be ulatory agencies pursuant to 18 U.S.C. the value of the property. Monetary re- 981 (e)(3) or (7). Generally, claims of fi- lief shall not be greater than the ap- nancial regulatory agencies pursuant praised value of the property at the to 18 U.S.C. 981(e)(3) or (7) shall take time of seizure and shall not exceed the priority over claims of victims. amount realized from the sale or other (9) Miscellaneous Provisions—(i) Pri- disposition. The proceeds of the sale ority of payment. Except where otherwise provided in this section, costs in- shall be distributed as follows: curred by the Postal Inspection Service (A) Payment of the government’s ex- and other agencies participating in the penses incurred incident to the for- forfeiture that were incident to the forfeiture and sale, including court costs feiture, sale, or other disposition of the and storage charges, if any; property shall be deducted from the (B) Payment to the petitioner of an amount available for remission or amount up to his or her interest in the mitigation. Such costs include, but are property; not limited to, court costs, storage (C) Payment to the Postal Service costs, brokerage and other sales-re- Fund of all other costs and expenses in- lated costs, the amount of any liens cident to the forfeiture;

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00073 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.7 39 CFR Ch. I (7–1–06 Edition)

(D) In the case of victims, payment of (3) The petition is truthful and accu- any amount up to the amount of his or rate in every respect. her loss; and (B) Verbal notification of representa- (E) Payment of the balance remain- tion is not acceptable. Responses and ing, if any, to the Postal Service Fund. notification of rulings shall not be sent (iii) Trustees and other assistants. In to an attorney claiming to represent a the exercise of his or her discretion, petitioner unless a written notice of the Ruling Official may use the serv- representation is filed. No extensions ices of a trustee, other government of- of time shall be granted due to delays ficial, or appointed contractors to no- in submission of the notice of represen- tify potential petitioners, process peti- tation. tions, and make recommendations to (viii) Consolidated petitions. At the the Ruling Official on the distribution discretion of the Ruling Official in in- of property to petitioners. The expense dividual cases, a petition may be filed for such assistance shall be paid out of by one petitioner on behalf of other pe- the forfeited funds. titioners, provided the petitions are (iv) Other agencies of the United States. based on similar underlying facts, and Where another agency of the United the petitioner who files the petition States is entitled to remission or miti- has written authority to do so on be- gation of forfeited assets because of an half of the other petitioners. This au- interest that is recognizable under thority must be either expressed in these regulations, or is eligible for such documents giving the petitioner the transfer pursuant to 18 U.S.C. 981(e)(6), authority to file petitions for remis- such agency shall request the transfer sion, or reasonably implied from docu- in writing, in addition to complying ments giving the petitioner express au- with the provisions of paragraphs (j)(3) thority to file claims or lawsuits re- through (5) of this section. The deci- lated to the course of conduct in question 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 the transfer of property under 18 U.S.C. meaning of paragraph (j)(2)(xxi) of this 981(e) to certain federal financial insti- section, may also file a petition on be- tution regulatory agencies or an entity half of all its insured or plan bene- acting in their behalf, upon receipt of a ficiaries for any claims they may have written request, in lieu of ruling on a based on co-payments made to the per- petition for remission or mitigation. petrator of the offense underlying the (vi) Transfers to foreign governments. A forfeiture or the perpetrator of a ‘‘re- Ruling Official may decline to grant lated offense’’ within the meaning of remission to any petitioner other than paragraph (j)(2)(xviii) of this section, if an owner or lienholder so that forfeited the authority to file claims or lawsuits assets may be transferred to a foreign is contained in the document or docu- government pursuant to 18 U.S.C. ments establishing the plan. Where 981(i)(1), 19 U.S.C. 1616a(c)(2), or 21 such a petition is filed, any amounts U.S.C. 881(e)(1)(E). granted as a remission must be trans- (vii) Filing by attorneys. (A) A petition ferred to the other petitioners, not the for remission or mitigation may be party filing the petition; although, in filed by a petitioner or by his or her at- his or her discretion, the Ruling Offi- torney or legal guardian. If an attorney cial may use the actual petitioner as files on behalf of the petitioner, the pe- an intermediary for transferring the tition must include a signed and sworn amounts authorized as a remission to statement by the client-petitioner the other petitioners. stating that: (1) The attorney has the authority to [52 FR 4497, Feb. 12, 1987; 52 FR 5765, Feb. 26, represent the petitioner in this pro- 1987, as amended at 54 FR 47520, Nov. 15, 1989; 56 FR 20361, May 3, 1991; 57 FR 32726, July 23, ceeding; 1992; 59 FR 31154, June 17, 1994; 59 FR 35852, (2) The petitioner has fully reviewed July 14, 1994; 60 FR 5581, Jan. 30, 1995; 60 FR the petition; and 8306, Feb. 14, 1995; 62 FR 31726, June 11, 1997]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00074 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.8

§ 233.8 Expedited forfeiture pro- tual or constructive possession of the ceedings for property seized for ad- controlled substance for offenses under ministrative forfeiture involving Federal, State or local law that indi- controlled substances in personal cates an intent to distribute a con- use quantities. trolled substance; (a) Definitions. As used in this sec- (D) Relationship of the controlled tion, the following terms have the substance to large amounts of cash or meanings specified: any amount of prerecorded government (1) Appraised Value means the esti- funds; mated domestic price at the time of (E) Possession of the controlled sub- seizure at which such or similar prop- stance under circumstances that indi- erty is freely offered for sale. cate the substance is a sample intended (2) Controlled Substance has the mean- for distribution in anticipation of a ing given in 21 U.S.C. 802. transaction involving large quantities, (3) Legal and Factual Basis of the Sei- or is part of a larger delivery; or zure means a statement of the applica- (F) Statements by the possessor, or ble law under which the property is otherwise attributable to the pos- seized, and a written statement of the sessor, including statements of con- circumstances of the seizure suffi- spirators, that indicate possession with ciently precise to enable an owner or intent to distribute. other interested party to identify the (ii) Possession of a controlled sub- date, place, and use or acquisition stance is presumed to be for personal which makes the property subject to use when there are no indicia of illicit forfeiture. drug trafficking or distribution such (4) Owner means one having a legal as, but not limited to, the factors list- and possessory interest in the property ed in § 233.8(a)(5)(i), and the amounts do seized for forfeiture. Even though one not exceed the following quantities: may hold primary and direct title to (A) One gram of a mixture of sub- the property seized, such person may stance containing a detectable amount not have sufficient actual beneficial in- of heroin; terest in the property to support a pe- (B) One gram of a mixture or sub- tition as owner if the facts indicate stance containing a detectable amount that another person had dominion and of: control over the property. (1) Coca leaves, except coca leaves (5) Personal Use Quantities means pos- and extracts of coca leaves from which session of a controlled substance in cir- cocaine, ecgonine, and derivations of cumstances where there is not other ecgonine or their salts have been re- evidence of an intent to distribute, or moved; to facilitate the manufacturing, (2) Cocaine, its salts, optical and geo- compounding, processing, delivering, metric isomers, and salts of isomers; importing, or exporting of any con- (3) Ecgonine, its derivatives, their trolled substance. Evidence of personal salts, isomers, and salts of isomers; or use quantities does not include (4) Any compound, mixture or prepa- sweepings or other evidence of posses- ration which contains any quantity of sion of quantities of a controlled sub- any of the substances referred to in stance for other than personal use. § 233.8(a)(5) (ii)(B)(1)–(3); (i) Such other evidence includes: (5) 1⁄10th gram of a mixture or sub- (A) Evidence, such as drug scales, stance described in § 233.8(a)(5)(ii) drug distribution paraphernalia, drug which contains cocaine base; records, drug packaging material, (6) 1⁄10 gram of a mixture or substance method of drug packaging, drug ‘‘cut- containing a detectable amount of ting’’ agents and other equipment, that phencyclidine (PCP); indicates an intent to process, package (7) 500 micrograms of a mixture or or distribute a controlled substance; substance containing a detectable (B) Information from reliable sources amount of lysergic acid diethylamide indicating possession of a controlled (LSD); substance with intent to distribute; (8) One ounce of a mixture of sub- (C) The arrest and/or conviction stance containing a detectable amount record of the person or persons in ac- of marihuana;

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00075 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.8 39 CFR Ch. I (7–1–06 Edition)

(9) One gram of methamphetamine, (i) Filed in a timely manner to be its salts, isomers, and salts of its iso- considered; in order to be filed in a mers, or one gram of a mixture or sub- timely manner, the petition must be stance containing a detectable amount received by the Postal Inspection Serv- of methamphetamine, its salts, iso- ice within 20 days from the date of the mers, or salts of its isomer. first publication of the notice of sei- (iii) The possession of a narcotic, a zure. depressant, a stimulant, a hallucinogen (ii) Executed and sworn to by the or cannabis-controlled substance will owner and both the envelope and the be considered in excess of personal use request must be clearly marked ‘‘PE- quantities if the dosage unit amount TITION FOR EXPEDITED RELEASE’’; possessed provides the same or greater (iii) Filed in accordance with the no- equivalent efficacy as described in tice of seizure; and § 233.8(a)(5)(ii). (iv) Addressed to the Chief Postal In- (6) Property means property subject spector, Postal Inspection Service. to forfeiture under title 21, U.S.C., Sec- (5) The petition must include the fol- tions 881(a)(4), (6), and (7). lowing: (7) Statutory Rights or Defenses to the (i) A complete description of the Forfeiture means all legal and equitable property, including identification num- rights and remedies available to a bers, if any, and the date and place of claimant of property seized for for- seizure; feiture. (ii) The petitioner’s interest in the (8) Sworn to as used in § 233.8(b)(4)(ii) property, which must be supported by refers to the oath as provided by 28 title documentation, bills of sale, con- U.S.C. 1746. tracts, mortgages, or other satisfac- (b) Petition for expedited release in an tory documentary evidence; and administrative forfeiture action. (1) (iii) A statement of the facts and cir- Where property is seized for adminis- cumstances, to be established by satis- trative forfeiture involving controlled factory proof, relied upon by the peti- substances in personal use quantities, tioner to justify expedited release of the owner may petition the Postal In- the seized property. spection Service for expedited release (c) Ruling on petition for expedited re- of the property. lease in an administrative forfeiture ac- (2) The owner filing the petition for tion involving personal use quantities of a expedited release must establish the controlled substance. (1) Upon receipt of following: a petition for expedited release filed (i) The owner has a valid, good faith pursuant to § 233.8(b), the Postal In- interest in the seized property as owner spection Service must determine first or otherwise; whether a final administrative deter- (ii) The owner reasonably attempted mination of the case, without regard to to ascertain the use of the property in the provisions of this section, can be a normal and customary manner; and made within 21 days of the seizure. If (iii) The owner did not know or con- such a final administrative determina- sent to the illegal use of the property, tion is made within 21 days, no further or in the event that the owner knew or action need be taken under this sec- should have known of the illegal use, tion. the owner did what reasonably could be (2) If no such final administrative de- expected to prevent the violation. termination is made within 21 days of (3) In addition to those factors listed the seizure, the following procedure ap- in § 233.8(b)(2), if an owner can dem- plies: onstrate that he has other statutory (i) The Postal Inspection Service, rights or defenses that would cause within 20 days after the receipt of the him to prevail on the issue of for- petition for expedited release, deter- feiture, such factors must also be con- mines whether the petition filed by the sidered in ruling on the petition for ex- owner has established the factors listed pedited release. in § 233.8(b)(2); and (4) A petition for expedited release (ii) If the Postal Inspection Service must be: determines that those factors have

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00076 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 233.10

been established, it terminates the ad- States Attorney within 20 days from ministrative proceedings and returns the date of the first publication of the the property to the owner except where notice of the action and arrest of the it is evidence of a violation of law; or property, or within 30 days after filing (iii) If the Postal Inspection Service of the claim, whichever occurs later. determines that those factors have not (c) Obtaining release of the property by been established, it proceeds with the filing a substitute res bond. Where a con- administrative forfeiture. veyance is being forfeited in a judicial (d) Posting of substitute res. (1) Where proceeding for a drug-related offense, property is seized for administrative the owner may obtain release of the forfeiture involving controlled substances in personal use quantities, the property by filing a substitute res bond owner may obtain release of the prop- with the Postal Inspection Service. The erty by posting a substitute res with conveyance will be released to the the Postal Service. The property will owner upon the payment of a bond in be released to the owner upon the pay- the amount of the appraised value of ment of an amount equal to the ap- the conveyance if it is not evidence of praised value of the property if it is not a violation of law or has design or evidence of a violation of law or has de- other characteristics that particularly sign or other characteristics that par- suit it for use in illegal activities. This ticularly suit it for use in illegal ac- bond must be in the form of a trav- tivities. This payment must be in the eler’s check, a money order, a cashier’s form of a traveler’s check, a money check or an irrevocable letter of credit order, a cashier’s check or an irrev- made payable to the United States ocable letter of credit made payable to Postal Service. A bond in the form of a the Postal Service. A bond in the form cashier’s check will be considered as of a cashier’s check will be considered paid once the check has been accepted as paid once the check has been accept- for payment by the financial institu- ed for payment by the financial insti- tion which issued the check. tution which issued the check. (d) Forfeiture of the bond. If a sub- (2) If a substitute res is posted and stitute res bond is filed and the convey- the property is administratively for- ance is judicially forfeited, the court feited, the Postal Inspection Service will forfeit the substitute res in lieu of will forfeit the bond in lieu of the prop- the property. erty. [54 FR 47520, Nov. 15, 1989] [54 FR 47522, Nov. 15, 1989]

§ 233.9 Expedited release of convey- § 233.10 Notice provisions. ances being forfeited in a judicial (a) Special notice provision. At the forfeiture proceeding for a drug-related offense. time of seizure of property defined in § 233.8(b) for violations involving the (a) Petition for expedited release of con- possession of personal use quantities of veyance. Where a conveyance has been a controlled substance, written notice seized and is being forfeited in a judi- will be provided to the possessor of the cial proceeding for a drug-related offense, the owner may petition the property regarding applicable statutes United States Attorney for an expe- and Federal regulations including the dited release of the conveyance in ac- procedures established for the filing of cordance with the regulations of the a petition for expedited release and for Department of Justice (21 CFR part the posting of a substitute res bond. 1316). (b) Standard notice provision. The (b) Petition filed in timely manner. A standard notice to the owner as re- petition for expedited release must be quired by 19 U.S.C. 1607 will be made at filed in a timely manner in order to be the earliest practicable opportunity considered by the United States Attor- after determining ownership of the ney. To be considered as filed in a seized property and must include the timely manner, in accordance with 21 legal and factual basis of the seizure. CFR part 1316, the petition must be received by the appropriate United [54 FR 47522, Nov. 15, 1989]

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00077 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 233.11 39 CFR Ch. I (7–1–06 Edition)

§ 233.11 Mail reasonably suspected of ardous, that cannot be resolved with- being dangerous to persons or out opening, must be reported to the property. Postal Inspection Service. Such mail (a) Screening of mail. When the Chief must be disposed of under instructions Postal Inspector determines that there promptly furnished by the Inspection is a credible threat that certain mail Service. may contain a bomb, explosives, or (b) Threatening pieces of mail. Mail, other material that would endanger sealed or unsealed, reasonably sus- life or property, including firearms pected of posing an immediate danger which are not mailable under Section to life or limb or an immediate and C024 of the Domestic Mail Manual, the substantial danger to property may, Chief Postal Inspector may, without a without a search warrant, be detained, search warrant or the sender’s or ad- opened, removed from postal custody, dressee’s consent, authorize the screen- and processed or treated, but only to ing of such mail by any means capable the extent necessary to determine and of identifying explosives, nonmailable eliminate the danger and only if a com- firearms, or other dangerous contents plete written and sworn statement of in the mails. The screening must be the detention, opening, removal, or within the limits of this section and treatment, and the circumstances that without opening mail that is sealed prompted it, signed by the person pur- against inspection or revealing the porting to act under this section, is contents of correspondence within mail promptly forwarded to the Chief Postal that is sealed against inspection. The Inspector. screening is conducted according to (c) Reports. Any person purporting to these requirements. act under this section who does not re- (1) Screening of mail authorized by port his or her action to the Chief paragraph (a) of this section must be Postal Inspector under the require- limited to the least quantity of mail ments of this section, or whose action necessary to respond to the threat. is determined after investigation not (2) Such screening must be done in a to have been authorized, is subject to manner that does not avoidably delay disciplinary action or criminal pros- the screened mail. ecution or both. (3) The Chief Postal Inspector may authorize screening of mail by postal [61 FR 28060, June 4, 1996] employees and by persons not em- § 233.12 Civil penalties. ployed by the Postal Service under such instruction that require compli- False representation and lottery or- ance with this part and protect the se- ders— curity of the mail. No information ob- (a) Issuance. Pursuant to 39 U.S.C. tained from such screening may be dis- 3005, the Judicial Officer of the Postal closed unless authorized by this part. Service, acting upon a satisfactory evi- (4) Mail of insufficient weight to pose dentiary basis, may issue a mail return a hazard to air or surface transpor- and/or a cease and desist order against tation, or to contain firearms which anyone engaged in conducting a are not mailable under Section C024 of scheme or device for obtaining money the Domestic Mail Manual, and inter- or property through the mail by means national transit mail must be excluded of a false representation, including the from such screening. mailing of matter which is non- (5) After screening conducted under mailable, or engaged in conducting a paragraph (a) of this section, mail that lottery, gift enterprise, or scheme for is reasonably suspected of posing an the distribution of money or of real or immediate and substantial danger to personal property, by lottery, chance, life or limb, or an immediate and sub- or drawing of any kind. stantial danger to property, may be (b) Enforcement. Pursuant to 39 U.S.C. treated by postal employees as pro- 3012, any person: vided in paragraph (b) of this section. (1) Who, through the use of the mail, (6) After screening, mail sealed evades or attempts to evade the effect against inspection that presents doubts of an order issued under 39 U.S.C. about whether its contents are haz- 3005(a)(1) or 3005(a)(2);

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00078 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 235.2

(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) [61 FR 56450, Nov. 1, 1996] Senior Assistant Postmaster General, Operations. PART 235—DEFENSE DEPARTMENT (e) Headquarters and field lines of suc- LIAISON cession. Each Headquarters organizational unit shall establish its own in- Sec. ternal line of succession to provide for 235.1 Postal Service to the Armed Forces. continuity under emergency condi- 235.2 Civil preparedness. tions. Each Regional Postmaster Gen- eral, Regional Chief Inspector, Postal § 235.1 Postal Service to the Armed Data Center Director, Inspector in Forces. Charge, and postmaster at first-class (a) Publication 38, Postal Agreement post offices shall prepare a succession with the Department of Defense, de- list of officials who will act in his stead fines the Postal Service’s responsibil- in the event he is incapacitated or ab- ities for providing postal service to the sent in an emergency. Orders of succes- Armed Forces. sion shall be shown by position titles, (b) The Chief Inspector is responsible except those of the Inspection Service for military liaison. may be shown by names. (c) Postal inspectors provide liaison (f) Field responsibilities. Postmasters between postmasters and military com- and heads of other installations shall: manders, visit military installations as (1) Carry out civil preparedness as- required, and make any necessary rec- signments, programs, etc., as directed ommendations. by regional officials. (39 U.S.C. 401(2), 402, 403, 404, as enacted by (2) Comply with, and cooperate in Pub. L. 91–375, 84 Stat. 719) community civil preparedness plans [38 FR 26193, Sept. 9, 1973] (including exercise) for evacuation, take cover and other survival measures § 235.2 Civil preparedness. prescribed for local populations. (a) Mission. The prime objective of (3) Designate representatives for con- postal emergency preparedness plan- tinuing liaison with local civil pre- ning is to maintain or restore essential paredness organizations where such ac- postal service in a national emergency, tivity will not interfere with normal natural disaster, or disruptive domes- duties. tic crisis. (4) Endeavor to serve (at their own (b) Emergency Coordinator. The Chief option) as members on the staff of the Inspector is designated Emergency Co- local civil preparedness director, pro- ordinator for the Postal Service. As vided such service will not interfere

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00079 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 241 39 CFR Ch. I (7–1–06 Edition)

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. [38 FR 26193, Sept. 9, 1973] (b) Classification—(1) Classified. Oper- ated by postal employees in quarters Post Office Organization and provided by the Federal Government. Administration (2) Contract. Operated under contract 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. 241.3 Discontinuance of post offices. ment for any purpose whatsoever. 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. (a) Establishment. See § 113.1 of this § 241.3 Discontinuance of post offices. chapter. (a) Introduction—(1) Coverage. This (b) Classification. As of July 1 each section establishes the rules governing year, post offices are classified by the the Postal Service’s consideration of Postmaster General based on the al- whether an existing post office should lowable postal revenue units for the be discontinued. The rules cover any second preceding fiscal year as follows: proposal to replace a post office with a (1) First Class. Post offices having 950 community post office, station or or more revenue units. branch, consolidation with another (2) Second Class. Post offices having post office, and any proposal to dis- 190 but less than 950 revenue units. continue a post office without pro- (3) Third Class. Post offices having 36 viding a replacement facility. but less 190 revenue units. (2) Legal requirements. Under 39 U.S.C. (4) Fourth Class. Post offices having 404(b), any decision to close or consoli- less than 36 revenue units. date a post office must be based on cer- (39 U.S.C. 401) tain criteria. These include the effect [36 FR 4764, Mar. 12, 1971, as amended at 42 on the community served; the effect on FR 59082, Nov. 15, 1977] employees of the post office; compliance with government policy estab- § 241.2 Stations and branches. lished by law that the Postal Service (a) Description. (1) Stations are estab- must provide a maximum degree of ef- lished within the corporate limits or fective and regular postal services to boundary, and branches are established rural areas, communities, and small outside the corporate limits or bound- towns where post offices are not self- ary of the city, town, or village in sustaining; the economic savings to the which the main post office is located. Postal Service; and any other factors Stations and branches may be des- the Postal Service determines nec- ignated by number, letter or name. As essary. In addition, certain mandatory a general rule, branches are named. procedures apply as follows: (2) Stations and branches transact (i) The public must be given 60 days’ registry and money order business, sell notice of a proposed action to enable postage supplies, and accept matter for the persons served by a post office to

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00080 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 241.3

evaluate the proposal and provide com- the affected post office may appeal the ments. decision to the Postal Rate Commis- (ii) After public comments are re- sion. ceived and taken into account, any (v) The Commission may only affirm final determination to close or consoli- the Postal Service determination or re- date a post office must be made in turn the matter for further consider- writing and must include findings cov- ation but may not modify the deter- ering all the required considerations. mination. (iii) The written determination must (vi) The Commission is required by 39 be made available to persons served by U.S.C. 404(b)(5) to make a determina- the post office at least 60 days before tion on the appeal no later than 120 the discontinuance takes effect. days after receiving the appeal. (iv) Within the first 30 days after the (vii) The following is a summary written determination is made avail- table of the notice and appeal periods able, any person regularly served by under the statute for these regulations.

(3) Additional requirements. This sec- (ii) Rules for consideration of a pro- tion also includes: posed discontinuance and for its imple- (i) Rules to ensure that the commu- mentation, if approved. These rules are nity’s identity as a postal address is designed to ensure that the reasons preserved. leading a district manager, Customer

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00081 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 ER09JN94.001 § 241.3 39 CFR Ch. I (7–1–06 Edition)

Service and Sales, to propose the dis- (c) Initial proposal—(1) In general. If a continuance of a particular post office district manager, Customer Service are fully articulated and disclosed at a and Sales, believes that the discontinu- stage that enables customer participa- ance of a post office within his or her tion to make a helpful contribution to- responsibility may be warranted, the ward the final decision. manager: (b) Preservation of community address— (i) Must use the standards and proce- (1) Policy. The Postal Service permits dures in § 241.3 (c) and (d). the use of a community’s separate ad- (ii) Must investigate the situation. dress to the extent practicable. (iii) May propose the post office be (2) ZIP Code assignment. The ZIP Code discontinued. for each address formerly served from (2) Consolidation. The proposed action the discontinued post office should be may include a consolidation of post of- kept, wherever practical. In some fices to substitute a community post cases, the ZIP Code originally assigned office or a classified or contract sta- to the discontinued post office may be tion or branch for the discontinued changed if the responsible district post office if: manager, Customer Service and Sales, (i) The communities served by two or submits a request with justification to more post offices are being merged into his or her vice president, Area Oper- a single incorporated village, town, or ations, before the proposal to dis- city; or continue the post office is posted. (ii) A replacement facility is nec- (i) In a consolidation, the ZIP Code essary for regular and effective service for the replacement community post to the area served by the post office office, station, or branch is the ZIP considered for discontinuance. Code originally assigned to the discon- (3) Views of postmasters. Whether the tinued post office. discontinuance under consideration in- (ii) If the ZIP Code is changed and volves a consolidation or not, the dis- the parent post office covers several trict manager, Customer Service and ZIP Codes, the ZIP Code must be that Sales, must discuss the matter with of the delivery area within which the the postmaster (or the officer in facility is located. charge) of the post office considered for (3) Post office name in address. If all discontinuance, and with the post- the delivery addresses using the name master of any other post office affected of the post office to be discontinued are by the change. The manager should assigned the same ZIP Code, customers make sure that these officials submit 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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00082 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 241.3

degree of effective and regular postal factors. In taking competing consider- services to rural areas, communities, ations into account, the need to pro- and small towns where post offices are vide regular and effective service is not self-sustaining. The proposal paramount. should (A) contrast the services avail- (vii) Notice. The proposal must in- able before and after the proposed clude the following notice: ‘‘This Is A change; (B) describe how the changes Proposal. It Is Not A Final Determina- respond to the postal needs of the af- tion To (Close) (Consolidate) This Post fected customers; and (C) highlight Office.’’ particular aspects of customer service (A) If a final determination is made that might be less advantageous as to close or consolidate this post office, well as more advantageous. after public comments on this proposal (ii) Effect on community. The proposal are received and taken into account, a must include an analysis of the effect notice of that final determination must the proposed discontinuance might be posted in this post office. have on the community served, and (B) The final determination must discuss the application of the require- contain instructions on how affected ments in § 241.3(b). customers may appeal that decision to (iii) Effect on employees. The written the Postal Rate Commission. Any such proposal must summarize the possible appeal must be received by the Com- effects of the change on the post- mission within 30 days of the posting of master, supervisors, and other employ- the final determination. ees of the post office considered for dis- (d) Notice, public comment, and continuance. (The district manager, —(1) Customer Service and Sales, must sug- record Posting proposal and comment gest measures to comply with per- notice. A copy of the written proposal sonnel regulations related to post of- and a signed invitation for comments fice discontinuance and consolidation.) must be posted prominently in each af- (iv) Savings. The proposal must in- fected post office. The invitation for clude an analysis of the economic sav- comments must: ings to the Postal Service from the (i) Ask interested persons to provide proposed action, including the cost or written comments within 60 days, to a savings expected from each major fac- stated address, offering specific opin- tor contributing to the overall esti- ions and information, favorable or un- mate. favorable, on the potential effect of the (v) Other factors. The proposal should proposed change on postal services and include an analysis of other factors the community. that the district manager, Customer (ii) State that copies of the proposal Service and Sales, determines are nec- with attached optional comment forms essary for a complete evaluation of the are available in the affected post of- proposed change, whether favorable or fices. unfavorable. (iii) Provide a name and telephone (vi) Summary. The proposal must in- number to call for information. clude a summary that explains why the (2) Proposal and comment notice. The proposed action is necessary, and as- following is a sample format that may sesses how the factors supporting the be used for the proposal and comment proposed change outweigh any negative notice.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00083 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 241.3 39 CFR Ch. I (7–1–06 Edition)

(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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00084 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 ER09JN94.002 United States Postal Service § 241.3

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 submitted by customers may be excluded. the post office considered for dis- (ii) The docket number assigned to continuance, a notice stating that the the proposal must be the ZIP Code of proposed closing or consolidation is not the office proposed for closing or con- warranted. solidation. (ii) Discontinuance warranted. If the (iii) The record must include a chron- district manager, Customer Service ological index in which each document and Sales, decides that the proposed contained is identified and numbered discontinuance is justified, the appro- as filed. priate sections of the proposal must be (iv) As written communications are revised, taking into account the com- received in response to the public no- ments received from the public. After tice and invitation for comments, they making necessary revisions, the man- are included in the record. ager must: (v) A complete copy of the record (A) Forward the revised proposal and must be available for public inspection the entire record to the vice president, during normal office hours at the post Delivery and Retail. office proposed for discontinuance or at (B) Attach a certificate that all docu- the post office providing alternative ments in the record are originals or service, if the office to be discontinued true and correct copies. was temporarily suspended, beginning (f) Postal Service decision—(1) In gen- no later than the date on which notice eral. The vice president, Delivery and is posted and extending through the Retail, or a designee must review the comment period. proposal of the district manager, Cus- (vi) Copies of documents in the tomer Service and Sales. This review record (except the proposal and com- and the decision on the proposal must ment form) are provided on request and on payment of fees as noted in the Ad- be based on and supported by the ministrative Support Manual (ASM) record developed by the district man- § 352.6. ager, Customer Service and Sales. The (e) Consideration of public comments vice president, Delivery and Retail, can and final local recommendation—(1) instruct the district manager to pro- Analysis of comments. After waiting not vide more information to supplement less than 60 days after notice is posted the record. Each instruction and the under § 241.3(d)(1) the district manager, response must be added to the record. Customer Service and Sales, must pre- The decision on the proposal of the dis- pare an analysis of the public com- trict manager, which must also be ments received for consideration and added to the record, may approve or inclusion in the record. If possible, disapprove the proposal, or return it comments subsequently received for further action as set forth in this should also be included in the analysis. paragraph (f). The analysis should list and briefly de- (2) Approval. The vice president, De- scribe each point favorable to the pro- livery and Retail or a designee may ap- posal and each point unfavorable to the prove the proposal of the district man- proposal. The analysis should identify ager, Customer Service and Sales, with

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00085 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 241.3 39 CFR Ch. I (7–1–06 Edition)

or without further revisions. If ap- manager, Customer Service and Sales, proved, the term ‘‘Final Determina- must: tion’’ is substituted for ‘‘Proposal’’ in (i) Provide notice of the Final Deter- the title. A copy of the Final Deter- mination by posting a copy promi- mination must be provided to the dis- nently in the affected post office or of- trict manager. The Final Determina- fices. The date of posting must be tion constitutes the Postal Service de- noted on the first page of the posted termination for the purposes of 39 copy as follows: ‘‘Date of posting:’’ The U.S.C. 404(b). The Final Determination district manager, Customer Service must 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 Final Determination was posted. A dis- at the (name) Post Office during nor- trict manager, Customer Service and mal office hours.’’ Sales, may request a different date for (3) The vice president, Disapproval. official discontinuance in the Post Of- Delivery and Retail, or a designee may fice Change Announcement document disapprove the proposal of the district submitted to the vice president, Deliv- manager, Customer Service and Sales, ery and Retail. However, the post office and return it and the record to the may not be discontinued sooner than 60 manager with written reasons for dis- days after the posting of the notice re- approval. The manager must post a no- quired by paragraph (g)(1) of this sec- tice in each affected post office that tion. the proposed closing or consolidation (3) Actions during appeal—(i) Imple- has been determined to be unwar- mentation of discontinuance. If an appeal ranted. is filed, only the vice president, Deliv- (4) Return for further action. The vice ery and Retail, may direct a dis- president, Delivery and Retail, or a continuance before disposition of the designee may return the proposal of appeal. However, the post office may the district manager, Customer Service not be discontinued sooner than 60 days and Sales, with written instructions to after the posting of notice required by give additional consideration to mat- paragraph (g)(1) of this section. ters in the record, or to obtain addi- (ii) Display of appeal documents. Legal tional information. Such instructions Policy and Ratemaking Law, Postal must be placed in the record. Service General Counsel, must provide (5) Public file. Copies of each Final the district manager, Customer Service Determination and each disapproval of and Sales, with copies of all pleadings, a proposal by the vice president, Deliv- notices, orders, briefs, and opinions ery and Retail, must be placed on file filed in the appeal proceeding. in the Postal Service Headquarters li- (A) The district manager must ensure brary. that copies of all these documents are (g) Implementation of final determina- prominently displayed and available tion—(1) Notice of final determination to for public inspection in the post office discontinue post office. The district to be discontinued. If the operation of

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00086 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 241.4

that post office has been suspended, the Use of emergency and temporary space 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, effective the first Saturday 90 days after (iv) Paving, striping, or other repair the Commission renders its opinion, if of parking areas; not previously implemented under (v) Landscaping. § 241.3(g)(3)(i). However, the post office (b) Purpose. The purpose of the proce- may not be discontinued sooner than 60 dures required by this section is to as- days after the posting of the notice re- sure increased opportunities for mem- quired under § 241.3(g)(1). bers of the communities who may be (ii) Determination returned for further affected by certain USPS facility consideration. If the Commission re- projects, along with local officials, to turns the matter for further consider- convey their views concerning the con- ation, the vice president, Delivery and templated project and have them con- Retail, must direct that either: sidered prior to any final decision to (A) Notice be provided under para- expand, relocate to another existing graph (f)(3) of this section that the pro- building, or construct a new building posed discontinuance is determined not that is owned or leased. to be warranted or (c) Expansion, relocation, new con- (B) The matter be returned to an ap- struction. When a need is identified that propriate stage under this section for will require the expansion, relocation, further consideration following such or new construction of a customer instructions as the vice president, De- service facility, postal representatives livery and Retail, may provide. responsible for the project will take 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, 2004] (1) Personally visit one or more of the highest ranking local public offi- § 241.4 Expansion, relocation, and con- cials (generally individuals holding struction of post offices. elective office). During the visit, the (a) Application. (1) This section ap- postal representatives will— plies when the USPS contemplates any (i) Identify the need and fully de- one of the following projects with re- scribe the project that is under consid- spect to a customer service facility: ex- eration to meet it, explain the process pansion, relocation to another existing by which the Postal Service will solicit building, or new construction, except and consider input from the affected when the project is to meet an emer- community, and solicit a working part- gency requirement or for temporary nership with the community officials use. Emergency situations include, but for the success of the project. are not limited to, earthquakes, floods, (ii) Emphasize that in meeting a need fire, lease terminations, safety factors, for increased space, the first priority is environmental causes, or any other ac- to expand the existing facility; the sections that would force an immediate ond priority is to find an existing relocation from an existing facility. building in the same area as the cur- Temporary relocation of space is used rent facility; and the third option is to for, but not limited to, holidays, spe- build on a new site; all within the cial events, or for overflow business. downtown area, if possible.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00087 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 241.4 39 CFR Ch. I (7–1–06 Edition)

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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00088 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 243.2

(d) Discontinuance of post offices; his- The Postal Service will give local pub- toric preservation. (1) It is the policy of lic officials written notice of any time- the Postal Service, by virtue of Board ly, written objections or recommenda- of Governors Resolution No. 82–7, to tions that it does not plan to adopt or comply with Section 106 of the general implement. provisions of the National Historic (g) Continuing communication. During Preservation Act, 16 U.S.C. 470, et seq., construction, whether renovation or Executive Order 12072, and Executive new construction, the postmaster Order 13006. Therefore, any facility should keep local officials and the com- project that will have an effect on cul- munity informed via letters and news tural resources will be undertaken in releases. The postmaster and other accordance with that policy. postal officials should plan, conduct (2) Any action involving the closing and invite the community and local of- or other discontinuance of a post office ficials to any ‘‘grand opening’’, as ap- shall be undertaken only in accordance propriate. with 39 U.S.C. 404(b) and 39 CFR 243.1. [63 FR 46656, Sept. 2, 1998] In the event a facility action is subject 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 offices. shall be governed by those statutes. (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 (39 U.S.C. 401) of the selection decision. [36 FR 4765, Mar. 12, 1971] (3) Take no final action to acquire or 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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 254 39 CFR Ch. I (7–1–06 Edition)

if not claimed by the loser. If the name former President or Postmaster Gen- of the finder cannot be obtained, and eral are not to be displayed in post of- the article is not claimed within 30 fice lobbies or in common use public 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- ington, DC 20260, with a memorandum (39 U.S.C. 501) 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, kept open during regular hours of busi- July 6, 1979] ness for the benefit of the public. Where vandalism or loitering cannot be General Postal Administration controlled, postmasters may lock restrooms, furnishing those agencies served by the restrooms, keys for em- PART 254—POSTAL SERVICE ployee use. This shall not be construed STANDARDS FOR FACILITY AC- to permit access by nonpostal per- CESSIBILITY PURSUANT TO THE sonnel to restrooms in restricted postal ARCHITECTURAL BARRIERS ACT areas. (e) Letter drops. At all except fourth- Sec. class post offices, provide a regulation 254.1 Adoption of U.S. Access Board Stand- letterbox for depositing mail in front of ards as Postal Service Standards of Fa- or next to the post office. Show collec- cility Accessibility tion time schedules on letterboxes. At 254.2 Definition of primary function area fourth-class offices, if a letterbox is not and criteria used to determine whether supplied, provide a slot in the outer an alteration has an effect on an area post office door. When messengers or containing a primary function that is star route carriers have access to lob- disproportionate to the overall alter- bies, door slot deposits must lead to a ations. locked box. AUTHORITY: 39 U.S.C 101, 401, 403; 29 U.S.C. (f) Hour signs. Display hours of win- 792(b)(3) and 42 U.S.C. 12204. dow service prominently at all first-, SOURCE: 70 FR 28214, May 17, 2005, unless second-, and third-class post offices, otherwise noted. classified stations and branches, and annexes. Use Sign 41, Hours decal set, § 254.1 Adoption of U.S. Access Board available in supply centers. Standards as Postal Service Stand- (g) Service of process on postal premises. ards of Facility Accessibility. Postmasters or other installation (a) The United States Postal Service heads shall permit service on postal adopts as its Architectural Barriers premises of civil and criminal process Act (ABA) ‘‘Standards for Facility Ac- affecting employees in personal mat- cessibility,’’ the following sections of ters, when such service of process will 36 CFR part 1191: not interfere with postal operations. Process servers should be directed to Appendix A to Part 1191, Table of the postmaster’s or installation head’s Contents for apps. C, D, and E. office, where the employee will be Appendix C to Part 1191, Architec- called in and service made. Section tural Barriers Act, Scoping (which con- 265.10 of this chapter contains rules retains ABA Chapter 1, Application and garding compliance with subpoena Administration, and ABA Chapter 2, duces tecum, court orders, and sum- Scoping requirements); pertinent parts monses where official business or offi- of Appendix D to Part 1191, Technical cial records are involved. (which includes Chapters 3 through 10). (h) Public service areas—prohibited Appendix E to Part 1191, List of Fig- items. Photographs of an incumbent or ures and Index.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 254.2

(b) These sections listed in paragraph bility improvements along the path of (a) of this section are adopted ver- travel to the area and improvements to batim, with the exception of the Advi- rest rooms, telephones, and drinking sory Notes, which are expressly ex- fountains that serve the altered area if cluded. the alteration ‘‘affects or could affect the usability of or access to an area § 254.2 Definition of primary function containing a primary function.’’ It is area and criteria used to determine 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 tion area’’ could affect the usability of the overall alterations. 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 must be made to the path of travel to and Section F202.4 contains require- the altered area and to rest rooms, ments for alterations affecting ‘‘pri- telephones, and drinking fountains mary function areas’’ stating, ‘‘* * *an that serve the altered area ‘‘unless alteration that affects or could affect such alterations are disproportionate the usability of or access to an area to the overall alterations in terms of containing a primary function shall be cost and scope’’. made so as to ensure that, to the max- (2) For purposes of the accessibility imum extent feasible, the path of trav- guidelines applicable to the Postal el to the altered area, including the Service under the Architectural Bar- rest rooms, telephones, and drinking riers Act, two criteria must be consid- fountains serving the altered area, are ered in making a determination wheth- readily accessible to and usable by in- er accessibility improvements are dis- dividuals with disabilities, unless such proportionate to the cost and scope of alterations are disproportionate to the the original alteration: a magnitude overall alterations in terms of cost and threshold for the original alteration scope as determined under criteria es- and a maximum ‘‘percentage thresh- tablished by the Administrator of * * * old’’ for the accessibility alteration. the United States Postal Service.’’ (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 ac- assess physical conditions along the cept, distribute, transport and deliver path of travel and for rest rooms, tele- the mail. Two essential facilities for phones, and drinking fountains that fulfilling these functions are customer serve the altered area, and to deter- lobby areas where customers conduct mine the scope, budget and appropriate their retail transactions, access mail design requirements for any corrective depositories and post office boxes and alterations. Unless the original alter- work room areas where postal employ- ation is of substantial magnitude, a ees distribute the mail and perform disproportionate effort would be de- other core postal operations. There- voted to such investigation, design, fore, for purposes of the accessibility and administration leaving few, if any guidelines applicable to the Postal funds to accomplish corrective work. Service under the Architectural Bar- Accordingly, a ‘‘magnitude threshold’’ riers Act, two primary function areas is established such that no accessi- are identified: Customer Lobbies and bility improvements to the path of Workroom Areas. travel, nor to any associated facilities, (c) Disproportionality. (1) According to shall be required under F202.6.2 for al- Section F202.6.2, ‘‘alteration’’ of ele- terations that have an estimated total ments in a primary function area can cost less than 20 percent of the fair trigger a requirement to make accessi- market value of the facility.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00091 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 255 39 CFR Ch. I (7–1–06 Edition)

(e) Percentage threshold. For alter- (b) The standards relating to elec- ations subject to F202.6.2 that meet or tronic and information technology ex- exceed the ‘‘magnitude threshold,’’ the pressed in this part are intended to be maximum cost for accessibility im- consistent with the standards an- provements to the path of travel, in- nounced by the Architectural and cluding all costs for accessibility im- Transportation Barriers Compliance provements to rest rooms, telephones, Board on December 21, 2000. Those and drinking fountains that serve the standards are codified at 36 CFR part altered area, shall not exceed 20 per- 1194. cent of the total cost of the original alteration. Costs for accessibility im- § 255.2 Definitions. provements in excess of the 20 percent (a) Agency as used in this part means threshold shall be deemed ‘‘dispropor- the Postal Service. tionate.’’ (b) Area/functional vice president also includes his or her designee. PART 255—ACCESS OF PERSONS (c) Electronic and information tech- WITH DISABILITIES TO POSTAL nology (EIT) includes ‘‘information SERVICE PROGRAMS, ACTIVITIES, technology’’ and any equipment or 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 or activity conducted by the Postal Serv- acquisition, storage, manipulation, ice. management, movement, control, dis- 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. number, sets forth the nature of the 255.9 Other postal regulations; authority of 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, tion in sufficient detail to inform the 3403, 3404; 29 U.S.C. 791, 794, 794d. 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 by someone authorized to do so on the § 255.1 Purpose. 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 amended. Section 504 prohibits dis- a disability’’ means any person who— crimination on the basis of disability (1) Has a physical or mental impair- in programs or activities conducted by ment that substantially limits one or executive agencies or by the Postal more of such person’s major life activi- Service. This part also implements sec- ties; tion 508 of the Rehabilitation Act of (2) Has a record of such an impair- 1973, as amended. Section 508 requires ment; or that executive agencies and the Postal (3) Is regarded as having such an im- Service ensure, absent an undue bur- pairment. den, that individuals with disabilities (f) Information technology means any have access to electronic and informa- equipment, or interconnected system tion technology that is comparable to or subsystem of equipment, that is the access of individuals who are not used in the automatic acquisition, disabled. storage, manipulation, management,

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00092 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 255.5

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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00093 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 255.6 39 CFR Ch. I (7–1–06 Edition)

§ 255.6 Processing of complaints. any such informal complaint to the ap- (a) Section 504 complaints, employment. propriate postal manager, and at the The Postal Service shall process com- same time must notify the complain- plaints of employees and applicants al- ant of the name, address, and telephone leging violations of section 504 with re- number of the person handling the spect to employment according to the complaint. procedures established by the Equal (ii) Resolution of the informal com- Employment Opportunity Commission plaint and time limits. Within 15 days of in 29 CFR part 1614 pursuant to section receipt of the informal complaint, the 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 members of the public or by employees ant may challenge an informal decision or applicants. Section 508 complaints which denies relief either by pro- shall be processed to provide the rem- ceeding in any other appropriate forum edies required by section 508 of the Re- or by filing a formal complaint with habilitation Act. the Vice President and Consumer Ad- (d) Complaint Procedures. Any indi- vocate. The notice will give the address vidual with a disability who believes of the Vice President and Consumer that he or she has been subjected to Advocate. The notice shall also state discrimination prohibited by this part that if the complainant chooses to file or by the alleged failure of the agency a formal complaint, the complainant to provide access to electronic and in- shall exhaust the formal complaint formation technology may file a com- procedures before filing suit in any plaint by following the procedures de- other forum. scribed herein. A complainant shall (iii) Automatic review. The responsible first exhaust informal administrative postal manager’s proposed disposition procedures before filing a formal com- of the informal complaint shall be sub- plaint. mitted to the appropriate district/pro- (1) Informal complaints relating to Post- gram manager for review. The district/ al Service programs or activities and to program manager shall forward the EIT. (i) A complainant initiates the in- proposed disposition to the area/func- formal process by informing the re- tional vice president for review and sponsible postal manager orally or in issuance of the written decision. This writing of the alleged discrimination automatic review process shall be com- or inaccessibility of Postal Service pro- pleted such that the written decision of grams, activities, or EIT. Postal man- the area/functional vice president shall agers or employees who receive infor- be sent to the complainant no later mal complaints that they lack the au- than the 60th day from the agency’s re- thority to resolve must promptly refer ceipt of the informal complaint.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 255.7

(2) Formal complaints. If an informal lief is being granted and the reasons for complaint filed under paragraph (d)(1) granting or denying relief. The notice of this section denies relief, the com- shall state that it is the final decision plainant may seek relief in any other of the Postal Service on the formal appropriate forum, including the right complaint. to file a formal complaint with the (e) No retaliation. No person shall be Vice President and Consumer Advocate subject to retaliation for opposing any in accordance with the following proce- practice made unlawful by the Reha- dures. If the complainant files a formal bilitation Act of 1973, as amended, 29 complaint with the Vice President and U.S.C. 791, or for participating in any 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 accepting 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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00095 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 255.8 39 CFR Ch. I (7–1–06 Edition)

services. A local postal manager receiv- may be made to the local postal man- ing a request or complaint about a spe- ager of the facility involved. cial arrangement for postal services (2) The local postal manager’s re- must provide any arrangement as response to a request or complaint required by postal regulations. If no spe- garding an alteration to a facility will cial arrangements are required by post- be made after consultation with the al regulations, the local postal man- district manager or the area manager. ager, in consultation with the district If the determination is made that manager or area manager, as needed, modification to meet ABA design may provide a special arrangement or standards is not required, a discre- take any action that will accommodate tionary alteration may be made on a an individual with a disability as re- case-by-case basis in accordance with quired by section 504 or by this part. the criteria listed in paragraph (a)(2) of this section. If a discretionary alter- § 255.8 Access to postal facilities. ation is not made, the local postal (a) Legal requirements and policy—(1) manager should determine if a special ABA Standards. Where the design arrangement for postal services under standards of the Architectural Barriers § 255.7 can be provided. 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 em- perform a discretionary retrofit to a fa- ployees. cility in accordance with this part to accommodate individuals with disabil- This part supplements all other post- ities. al regulations. Nothing in this part is 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: (i) The cost of the discretionary PART 259—SERVICES PERFORMED modification; FOR OTHER AGENCIES (ii) The number of individuals to be benefited by the modification; Sec. 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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00096 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 259.2

supplies specifically sold, used or con- FHLBB so that the necessary forms sumed. Also included is an element rep- will be provided on time. resenting a reasonable share of Postal (ii) All necessary forms and instruc- Service general overhead costs which tions will be supplied directly to each are not attributable or assignable spe- post office to be surveyed. Postmasters cifically to any product or service. The will designate a manager in each deliv- establishment of such fees and charges ery unit to coordinate the survey with- shall be reasonably consistent with the in the unit and to review completed methods employed in establishing survey forms for accuracy. rates and fees for postal services then (iii) FHLBB may request USPS to in effect. perform special or emergency surveys (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 otherwise participate in any cooperative livery offices when requested by projects without the authorization in FHLBB. paragraph (c) of this section. (2) Restrictions. The Agreement only authorizes the disclosure of aggregate (39 U.S.C. 401, 411) statistical data. Postal managers must [36 FR 4773, Mar. 12, 1971, as amended at 40 not permit the name or address of any FR 26511, June 24, 1975; 41 FR 56196, Dec. 27, past or present postal patron, or any 1976; 42 FR 58170, Nov. 8, 1977; 42 FR 63170, other person to be disclosed unless Dec. 15, 1977] such disclosure is authorized in writing by USPS Regions or Headquarters and § 259.2 Red Cross. is not in violation of 39 U.S.C. 412. (a) General. The Postal Service and (3) Postmaster’s Responsibility. (i) A the Red Cross cooperate to maintain postmaster will receive notification communication between the individual from FHLBB when his office has been and the community during times of selected to conduct a Housing Vacancy disaster. This applies only to natural Survey. Normally, written notification disasters such as those caused by will be mailed to the postmaster 30 floods, tornados, hurricanes, earth- days in advance of the date FHLBB quakes, fires, explosions, etc., and not would like USPS to conduct the sur- to those caused by enemy action. vey, since USPS is under no obligation (b) Role of Postal Service. The Postal to use overtime or auxiliary assistance Service and the Red Cross will share to conduct these surveys. The post- information on the whereabouts of per- master or his designee will schedule sons displaced by disasters, and other- the survey on or near the date re- wise cooperate with each other, as fol- quested and will promptly reply to lows:

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00097 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 261 39 CFR Ch. I (7–1–06 Edition)

(1) The Red Cross will use Form 3575, Records and Information Change of Address Order, as a standard item in Red Cross disaster relief. It will PART 261—RECORDS AND urge disaster victims displaced from INFORMATION MANAGEMENT their homes to obtain and complete the forms, it will distribute the forms to Sec. disaster victims who need them, and it 261.1 Purpose and scope. will collect from the victims and turn 261.2 Authority. over to the Postal Service any com- 261.3 Policy. pleted forms received. 261.4 Responsibility. (2) The Postal Service will provide AUTHORITY: 39 U.S.C. 401. the Red Cross the blank forms needed. § 261.1 Purpose and scope. (3) During each disaster and subsequent disaster relief efforts, the Postal As a result of the Postal Reorganiza- Service will establish a separate file of tion Act, 39 U.S.C. 410, the U.S. Postal change of address forms completed by Service is no longer subject to the pro- disaster victims, and will make avail- visions of the Federal Records Act of able to the Red Cross information in 1950, or any of its supporting regula- the file. This information will be used tions which provide for the conduct of records management in Federal agen- by the Red Cross only to locate individ- cies. The objective of Parts 261 through uals and families, to answer inquiries 268 is to provide the basis for a Postal from relatives and friends concerning Service-wide records and information the whereabouts and welfare of the dis- management program affecting all or- aster victims, or to make contact with ganizational components having the disaster victims who have applied for custody of any form of information and assistance from the Red Cross but who records. cannot be located because of a change of address. [40 FR 45721, Oct. 2, 1975; 40 FR 48511, Oct. 16, 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 cooper- [40 FR 45721, Oct. 2, 1975, as amended at 44 FR ate with Red Cross officials to the max- 51223, Aug. 31, 1979; 60 FR 57344, Nov. 15, 1995; imum feasible degree during times of 68 FR 56558, Oct. 1, 2003] natural disasters. § 261.3 Policy. (39 U.S.C. 401, 411) It is the policy of the Postal Service: [36 FR 4773, Mar. 12, 1971, as amended at 40 (a) To, as appropriate, create, pre- FR 26511, June 24, 1975] serve, protect and disclose records

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00098 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 262.3

which contain adequate and proper § 262.2 Officials. documentation of the organization, (a) Chief Privacy Officer. The Chief functions, policies, decisions, operations, procedures, activities and Privacy Officer (CPO) is responsible for transactions of the Postal Service, the issuance of policy on the protection (b) To reduce to an absolute min- of privacy and the release of Postal imum the records holdings of the Post- Service records with the power to au- al Service by strict adherence to estab- thorize the disclosure of such records lished records retention schedules. and to delegate or take appropriate action if that policy is not adhered to or [40 FR 45721, Oct. 2, 1975, as amended at 44 FR if questions of interpretation or proce- 51223, Aug. 31, 1979] dure arise. The CPO directs the activi- § 261.4 Responsibility. ties of the Privacy Office and the Records Office. (a) The Manager, Records Office, (b) Manager, Records Office. The Man- under the Privacy Office, administers ager, Records Office, manages the the Postal Service release of informa- Records Office, and is responsible for tion and privacy of information pro- establishing procedures and guidelines grams with the assistance of FOIA co- to ensure that record management ordinators in the Consumer Affairs practices are in compliance with the function of area and district offices. Privacy Act and FOIA. The Manager, (b) The Chief Privacy Officer, under Records Office, may also delegate or the Vice President and Consumer Ad- take appropriate action if policies are vocate, is responsible for administering 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. 262.3 Information. on the maintenance and disposition of 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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00099 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 262.4 39 CFR Ch. I (7–1–06 Edition)

(a) Sensitive information. Information considered temporary and must be which has been identified by the USPS scheduled for disposal.) as restricted or critical. (b) Corporate records. Those records (1) Critical information. Information series that are designated by the that must be available in order that Records Office as containing informa- the Postal Service effectively perform tion of legal, audit, obligatory or archi- its mission and meet legally assigned val value about events and trans- responsibilities; and for which special actions of interest to the entire cor- precautions are taken to ensure its ac- porate body of the Postal Service. Cor- curacy, relevance, timeliness and com- porate records are distinguished from pleteness. This information, if lost, operational records, which have value would cause significant financial loss, only in their day-to-day use, and from 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- ice consistent with the Privacy and (d) Inactive record. A record that con- Freedom of Information Acts. tains information which is not used for (i) Restricted mandatory. Information conducting current business, but for that has limitations upon its internal which the retention period has not yet access and that may be disclosed only expired. in accordance with an Executive Order, (e) Vital records. Certain records public law, or other Federal statute which must be available in the event of and their supporting postal regula- a national emergency in order to en- tions. sure the continuity of Postal Service (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, § 262.4 Records. contractors and customers. Recorded information, regardless of [49 FR 30693, Aug. 1, 1984, as amended at 51 media, format, or physical characteris- FR 26385, July 23, 1986; 60 FR 57344, Nov. 15, tics, including electronic data, devel- 1995; 63 FR 6481, Feb. 9, 1998; 64 FR 41290, July oped or received by the Postal Service 30, 1999; 68 FR 56558, Oct. 1, 2003] in connection with the transaction of § 262.5 Systems (Privacy). its business and retained in its custody; for machine-readable records, a (a) Privacy Act system of records. A collection of logically related data Postal Service system containing in- treated as a unit. formation about individuals, including (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.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00100 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 262.7

(b) Individual (record subject). A living records, provided that the purpose is person. Does not include sole propri- not to take any adverse action against etorships, partnerships or corporations. any individual. A business firm identified by the name (vii) Matches performed for security of one or more persons is not an indi- clearance background checks or for vidual. foreign counterintelligence. (c) Computer matching program. A (2) Although these and other match- ‘‘matching program,’’ as defined in the ing activities that fall outside the defi- Privacy Act, 5 U.S.C. 552a(a)(8), is sub- nition of ‘‘matching program’’ are not ject to the matching provisions of the subject to the matching provisions of Act, published guidance of the Office of the Privacy Act or OMB guidance, Management and Budget, and these other provisions of the Act and of these 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 require- (a) Records control schedule. A direc- ments by, applicants for, recipients or tive describing records series that are beneficiaries of, participants in, or pro- maintained by components of the Post- viders of services with respect to, cash al Service; it provides maintenance, re- or in-kind assistance or payments tention, transfer, and disposal instruc- under Federal benefit programs, or tions for each series listed, and serves (ii) Recouping payments or delin- as the authority for Postal officials to quent debts under such Federal benefit implement such instructions. programs; (b) Disposal (records). The permanent (2) A Postal Service automated per- removal of records or information from sonnel or payroll system of records Postal Service custody; included are: with another automated personnel or 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 indi- (a) Non-record material. Includes vidual. blank forms and surplus publications, (vi) Internal matches using only handbooks, circulars, bulletins, an- records from Postal Service systems of nouncements, and other directives as

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00101 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 263 39 CFR Ch. I (7–1–06 Edition)

well as any material not directly asso- for delegating in writing, persons to ciated with the transaction of Postal perform these duties. Service business. [40 FR 45722, Oct. 2, 1975, as amended at 60 FR (b) Personal papers. Those materials 57344, Nov. 15, 1995; 64 FR 41290, July 30, 1999; created or received during an individ- 68 FR 56558, Oct. 1, 2003] ual’s period of employment with the Postal Service which are of a purely § 263.4 Records disposal. private or nonofficial character, or All disposals of records containing which were neither created nor re- sensitive information, i.e. transfers to ceived in connection with Postal Serv- records storage centers, destruction, ice business. transfers external to the USPS, and maintenance of accounting records re- PART 263—RECORDS RETENTION garding such disposal, must be accom- AND DISPOSITION plished in accordance with procedures issued by the Records Office. Sec. [40 FR 45722, Oct. 2, 1975, as amended at 60 FR 263.1 Purpose and scope. 57344, Nov. 15, 1995. Redesignated and amend- 263.2 Policy. ed at 64 FR 41290, July 30, 1999; 68 FR 56558, 263.3 Responsibility. Oct. 1, 2003] 263.4 Records disposal. 263.5 Inquiries. § 263.5 Inquiries.

AUTHORITY: 39 U.S.C. 401. Inquiries regarding records maintenance and disposition should be di- SOURCE: 40 FR 45722, Oct. 2, 1975, unless rected to the Manager, Records Office, otherwise noted. United States Postal Service, 475 L’Enfant Plaza, SW., Washington, DC § 263.1 Purpose and scope. 20260, or, by telephone, (202) 268–2608. This part contains the policy and general regulations pertaining to the [64 FR 41290, July 30, 1999, as amended at 68 FR 56558, Oct. 1, 2003] retention and disposition of records and information throughout all organizational levels and components. PART 264—VITAL RECORDS

§ 263.2 Policy. Sec. 264.1 Purpose and scope. It is the policy of the U.S. Postal 264.2 Policy. Service to establish and maintain 264.3 Responsibility. schedules specifying the retention peri- 264.4 Vital Records Program. ods required for all official and duplicate record copies. Furthermore, it is AUTHORITY: 39 U.S.C. 401. the policy that all duplicate record SOURCE: 44 FR 51224, Aug. 31, 1979, unless copies and non-record material will be otherwise noted. disposed of as soon as they have served § 264.1 Purpose and scope. their purpose. Certain records are critical to the § 263.3 Responsibility. continuity of Postal Service operations (a) Records Office. Records Office has or to the preservation of the rights and the responsibility for providing for the interests of the Postal Service, its employees, contractors or customers. To establishment of retention schedules ensure that these records are available and has the authority to approve them. when needed, specific controls are re- Furthermore, that office has the au- quired which affect all organizational thority to dispose of Postal Service components having the custody of records by transfer or destruction. records defined as being ‘‘vital.’’ (b) Custodians. Custodians are responsible for the retention and prompt dis- § 264.2 Policy. posal of records in their custody and It is the policy of the U.S. Postal Service to ensure the availability of all

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00102 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.2

records considered critical to the con- 265.8 Business information; procedures for tinuity of its operations and the pres- predisclosure notification to submitters. ervation of the rights and interests of 265.9 Schedule of fees. 265.10 Annual report. the Postal Service, its employees, con- 265.11 Compliance with subpoena duces tractors, and customers. Vital records tecum, court orders, and summonses. shall be routinely maintained at 265.12 Demands for testimony or records in predesignated off-site locations to en- certain legal proceedings. sure their availability when needed by 265.13 Compliance with subpoenas, sum- management and operating personnel. monses, and court orders by postal employees within the Inspection Service § 264.3 Responsibility. where the Postal Service, the United States, or any other federal agency is not (a) Manager, Records Office. The Man- a party. ager, Records Office, is responsible for APPENDIX A TO PART 265—FEES FOR COM- categorizing records as vital, and in PUTER SERVICES 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 pro- Service made available pursuant to the gram procedures including the for- requirements of the Act shall be fur- warding of vital records to nished to members of the public as pre- predesignated off-site locations. scribed by this part. [44 FR 51224, Aug. 31, 1979, as amended at 60 [40 FR 7331, Feb. 19, 1975] FR 57344, Nov. 15, 1995; 64 FR 41290, July 30, 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 appro- cific exemptions required or authorized priate. by law. (b) The exemptions from mandatory [44 FR 51224, Aug. 31, 1979, as amended at 60 disclosure provided by section 552(b) of FR 57344, Nov. 15, 1995; 64 FR 41290, July 30, title 5, and section 410(c) of title 39, 1999] U.S.C., for various types of records, reflect the fact that under some cir- PART 265—RELEASE OF cumstances the public interest may be INFORMATION better served by leaving the disclosure of particular records to the discretion Sec. of the Postal Service than by requiring 265.1 Purpose and scope. their disclosure. As to those records 265.2 Policy. the disclosure of which is not prohib- 265.3 Responsibility. ited by statute, Executive Order, or 265.4 Inquiries. 265.5 Public reading rooms. regulation, the discretion vested in the 265.6 Availability of records. Postal Service is exercised after giving 265.7 Procedure for inspection and copying consideration to the following: The ef- of records. fect of non-disclosure on the public’s

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00103 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.3 39 CFR Ch. I (7–1–06 Edition)

right to know about a particular mat- this material as has been created by ter; the effect of disclosure on the right the Postal Service on or after Novem- of privacy of any affected individuals; ber 1, 1996, and has not been published the effect of disclosure on the public and offered for sale, also will be avail- interest in the economical, efficient, able in electronic format at the Postal and orderly operation of the nation’s Service’s world wide web site at http:// mail system; and any other factors www.usps.com/foia. that may be relevant under the circumstances. [63 FR 6481, Feb. 9, 1998, as amended at 68 FR 56559, Oct. 1, 2003] [40 FR 7331, Feb. 19, 1975, as amended at 45 FR 44270, July 1, 1980] § 265.6 Availability of records. § 265.3 Responsibility. (a) Records available to the public on request—(1) General. Postal Service (a) Custodian. Official records are in records are available for inspection or the custody of the postmaster or other copying at the request of any person, head of a facility or department at in accordance with the provisions of which they are maintained, as defined this part, except as otherwise provided at § 262.2(c) of this chapter. These by law or regulations, including but custodians are responsible for respond- not limited to paragraphs (b) through ing in the first instance to requests (g) of this section. Certain categories from members of the public for Postal of records of particular interest are Service records. available on a continuing basis as pro- (b) Manager, Records Office. The Post- vided in paragraphs (a)(2), (3), and (4) of al Service Manager, Records Office, this section and are listed in a public under the Privacy Office, is responsible index as provided in paragraphs (a)(4) for the overall administration of this and (5) of this section. Access to other part, including the issuance of detailed records may be requested on an indi- instructions to custodians. vidual basis in accordance with the (c) General Counsel. The General procedures provided in § 265.7. Official Counsel decides timely appeals author- records which are maintained on an ized by this part. 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) [60 FR 57345, Nov. 15, 1995, as amended at 64 of title 39, United States Code, to close FR 41290, July 30, 1999; 68 FR 56559, Oct. 1, or consolidate a post office, or to dis- 2003] approve a proposed closing or consolidation, all advisory opinions con- § 265.5 Public reading rooms. cerning the private express statutes The Library of the Postal Service issued pursuant to 39 CFR 310.6, and all Headquarters, 475 L’Enfant Plaza SW, bid protest decisions are on file and Washington, DC 20260–1641, serves as available for inspection and copying at public reading room for the materials the Headquarters Library and, if cre- which are listed in paragraphs (a)(2), ated on or after November 1, 1996, also (3), (4) and (5) of § 265.6 as available for at the Postal Service’s world wide web public inspection and copying. Such of site identified at § 265.5.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00104 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.6

(3) Administrative manuals and instruc- ministrative staff manuals and instructions to staff. The manuals, instructions that affect the public, and other tions, and other publications of the materials which the Postal Service Postal Service that affect members of elects to index and make available to the public are available through the the public on request in the manner set Headquarters Library and at many forth in paragraph (a) of this section. post offices and other postal facilities. (ii) The index contains references to Those which are available to the public matters issued after July 4, 1967, and but are not listed for sale may be in- may reference matters issued prior to spected in the Headquarters Library, at that date. any postal facility which maintains a (iii) Any person may arrange for the copy, or, if created on or after Novem- inspection of any matter in the public ber 1, 1996, through the world wide web index in accordance with the proce- site identified at § 265.5. Copies of publi- dures of § 265.7. cations which are not listed as for sale 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:

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00105 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.6 39 CFR Ch. I (7–1–06 Edition)

(i) Information pertaining to meth- mandatory disclosure except to the ex- ods of handling valuable registered tent otherwise available by law to a mail. party other than the Postal Service, 39 (ii) Records of money orders, except U.S.C. 410(c)(6). As a matter of policy, as provided in R900 of the Domestic Mail however, the Postal Service will nor- Manual (DMM). mally make records or information (iii) Technical information con- compiled for law enforcement purposes cerning postage meters and prototypes available upon request unless the pro- submitted for Postal Service approval duction of these records: prior to leasing to mailers. (i) Could reasonably be expected to (iv) Reports of market surveys con- interfere with enforcement pro- ducted by or under contract in behalf ceedings; of the Postal Service. (ii) Would deprive a person of a right (v) Records indicating rural carrier to a fair trial or an impartial adjudica- lines of travel. tion; (vi) Records compiled within the (iii) Could reasonably be expected to Postal Service which would be of po- constitute an unwarranted invasion of tential benefit to persons or firms in personal privacy; economic competition with the Postal (iv) Could reasonably be expected to Service. disclose the identity of a confidential (vii) Information which, if publicly source, including a State, local, or for- disclosed, could materially increase eign agency or authority or any pri- procurement costs. vate institution which furnished infor- (viii) Information which, if publicly mation on a confidential basis, and, in disclosed, could compromise testing or the case of a record or information examination materials. compiled by a criminal law enforce- (4) Interagency or internal memo- ment authority (such as the Postal In- randa or letters that would not be spection Service) in the course of a available by law to a private party in criminal investigation, or by an agency litigation with the Postal Service. conducting a lawful national security (5) Reports and memoranda of con- intelligence investigation, information sultants or independent contractors, furnished by a confidential source; except to the extent they would be re- (v) Would disclose techniques and quired to be disclosed if prepared with- procedures for law enforcement inves- in the Postal Service. tigations or prosecutions, or would dis- (6) Files personal in nature, including close guidelines for law enforcement medical and personnel files, the disclo- investigations or prosecutions if such sure of which would constitute a clear- disclosure could reasonably be ex- ly unwarranted invasion of personal pected to risk circumvention of the privacy. law; or (7) Information prepared for use in (vi) Could reasonably be expected to connection with proceedings under endanger the life or physical safety of chapter 36 of title 39, U.S.C., relating any individual. to rate, classification, and service (2) Whenever a request is made which changes. involves access to records described in (8) Information prepared for use in § 265.6(c)(1)(i), and connection with the negotiation of col- (i) The investigation or proceeding lective bargaining agreements under involves a possible violation of crimi- chapter 12 of title 39, U.S.C., or min- nal law; and utes of, or notes kept during, negoti- (ii) There is reason to believe that, ating sessions conducted under such (A) The subject of the investigation chapter. or proceeding is not aware of its pend- (9) Other matter specifically exempt- ency, and ed from disclosure by statute. (B) Disclosure of the existence of the (c) Records or information compiled for records could reasonably be expected to law enforcement purposes. (1) Investiga- interfere with enforcement pro- tory files compiled for law enforcement ceedings, the Postal Service may, dur- purposes, whether or not considered ing only such time as that cir- closed, are exempt by statute from cumstance continues, treat the records

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00106 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.6

as not subject to the requirements of the name of any person applying for a the Freedom of Information Act. permit in behalf of a holder will be fur- (3) Whenever informant records nished to any person upon the payment maintained by a criminal law enforce- of any fees authorized by paragraph (b) ment agency (such as the Postal In- of § 265.9. For the name and address of spection Service) under an informant’s a postage meter license holder, see name or personal identifier are re- paragraph (d)(3) of this section. (Lists quested by a third party according to of permit holders may not be disclosed 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 in those circumstances stated at para- Information from PS Form 1093, Appli- graph (d)(5) of this section. Disclosure cation for Post Office Box or Caller Serv- will be limited to the address of the ice, will be provided as follows: specifically identified individual about (i) Except as provided in paragraph whom the information is requested (d)(4)(iii) of this section, the boxholder (not other family members or individ- applicant name and address from PS uals whose names may also appear on Form 1093 will be provided only in the change of address order). The Post- those circumstances stated in para- al Service reserves the right not to dis- graphs (d)(5)(i) through (d)(5)(iii) of close the address of an individual for this section. the protection of the individual’s per- (ii) Except as provided in paragraph sonal safety. Other information on PS (d)(4)(iii) of this section, the names of Form 3575 or copies of the form will not persons listed as receiving mail, other be furnished except in those cir- than the boxholder applicant, will be cumstances stated at paragraphs furnished from PS Form 1093 only in (d)(5)(i), (d)(5)(iii), or (d)(5)(iv) of this those circumstances stated in para- section. graphs (d)(5)(i) and (d)(5)(iii) of this (2) Name and address of permit holder. section. The name and address of the holder of (iii) When a copy of a protective a particular bulk mail permit, permit order has been filed with the post- imprint or similar permit (but not in- master, information from PS Form 1093 cluding postage meter licenses), and will not be disclosed except pursuant to

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00107 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.6 39 CFR Ch. I (7–1–06 Edition)

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

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.6

requesting the verification of a cus- ployees shall not make available to the tomer’s current address or a cus- public by any means or for any purpose tomer’s new mailing address. If the re- any mailing list or other list of names quest lacks any of the required infor- or addresses (past or present) of postal mation or a proper signature, the post- patrons or other persons. master will return the request to the (2) Records or other documents which agency, specifying the deficiency in the are classified or otherwise specifically space marked ‘‘OTHER’’. authorized by Executive Order 12356 (8) Business/Residence location. If the and implementing regulations to be location of a residence or a place of kept secret in the interest of the na- business is known to a Postal Service tional defense or foreign policy are not employee, whether as a result of offi- subject to disclosure pursuant to this cial duties or otherwise, the employee part. may, but need not, disclose the loca- (3) Records consisting of trade se- tion or give directions to it. No fee is crets or confidential financial data, the charged for such information. disclosure of which is prohibited by (9) Private mailbox information. Infor- section 1905 of title 18, U.S.C., 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: (i) Except as provided in paragraph (4) Other records, the disclosure of (d)(9)(iii) of this section, information which is prohibited by statute, are not from PS Form 1583 will be provided subject to disclosure pursuant to this only in the circumstance stated in part. paragraph (d)(5)(iii) of this section. (f) Protection of the right of privacy. If (ii) To the public only for the purpose any record required or permitted by of identifying a particular address as this part to be disclosed contains the an address of an agent to whom mail is name of, or other identifying details delivered on behalf of other persons. No concerning, any person, including an other information, including, but not employee of the Postal Service, the limited to, the identities of persons on disclosure of which would constitute a whose behalf agents receive mail, may clearly unwarranted invasion of per- be disclosed to the public from PS sonal privacy, the name or other iden- Form 1583. tifying details shall be deleted before (iii) Information concerning an indi- the record is disclosed and the re- vidual who has filed a protective court quester so informed. order with the postmaster will not be (g) Disclosure in part of otherwise ex- disclosed except pursuant to the order empt record. Any reasonably segregable of a court of competent jurisdiction. portion of a record shall be provided (e) Information not available for public after deleting the information which is disclosure. (1) Except as provided by neither subject to mandatory disclo- paragraph (a)(6) of this section, the sure nor available as a matter of dis- Postal Service and its officers and em- cretion.

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00109 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.6 39 CFR Ch. I (7–1–06 Edition)

100

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00110 Fmt 8010 Sfmt 8006 Y:\SGML\208140.XXX 208140 ER01SE05.084 United States Postal Service § 265.7

[40 FR 7331, Feb. 19, 1975, as amended at 41 § 265.7 Procedure for inspection and FR 52052, Nov. 26, 1976; 42 FR 59085, Nov. 15, copying of records. 1977; 45 FR 44270, July 1, 1980; 47 FR 20304, May 12, 1982; 47 FR 21248, May 18, 1982; 48 FR (a) Submission of requests—(1) Form 1969, Jan. 17, 1983; 51 FR 8825, Mar. 14, 1986; 51 and content of request. To permit expe- FR 26386, July 23, 1986; 52 FR 13668, Apr. 24, ditious handling and timely response in 1987; 52 FR 22778, June 16, 1987; 53 FR 49983, accordance with the provisions of this Dec. 13, 1988; 54 FR 3558, Jan. 24, 1989; 59 FR 11550, Mar. 11, 1994; 59 FR 22757, May 3, 1994; part, a request to inspect or to obtain 59 FR 62324, Dec. 5, 1994; 59 FR 67225, 67226, a copy of an identifiable Postal Service 67227, Dec. 29, 1994; 60 FR 57345, Nov. 15, 1995; record shall be in writing and bear the 62 FR 64282, Dec. 5, 1997; 63 FR 6481, Feb. 9, caption ‘‘Freedom of Information Act 1998; 64 FR 41290, July 30, 1999; 65 FR 3859, Request’’ or otherwise be clearly and Jan. 25, 2000; 67 FR 46393, July 15, 2002; 68 FR 56559, Oct. 1, 2003; 69 FR 34932, June 23, 2004; prominently identified as a request for 69 FR 39851, July 1, 2004; 70 FR 22512, Apr. 29, records pursuant to the Freedom of In- 2005; 70 FR 52016, Sept. 1, 2005] formation Act. A request shall be

101

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00111 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 ER01SE05.085 § 265.7 39 CFR Ch. I (7–1–06 Edition)

clearly and prominently identified as state any reasons why the record such on the envelope or other cover. should nevertheless be made available Other requests for information will be to him even if exempt. considered informal requests and will (4) Request for waiver of fees. The re- be handled as expeditiously as prac- quester may ask that fees or the ad- ticable but not necessarily within the vance payment of fees be waived in 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 submitted to a facility other than that at (6) Request for records located at nu- which the record is maintained, it shall merous facilities. A request for records be promptly transmitted to the appro- which are, or may be, located at all or priate custodian with a copy of the a substantial number of post offices or transmittal furnished to the requester. other postal facilities will be deemed A request which is not initially sub- to be a reasonable description only of mitted to the appropriate custodian such of those records as are maintained shall be deemed to have been received at the post office or other facility to by the Postal Service for purposes of which the request is submitted, and of computing the time for response is ac- those records maintained at any other cordance with § 265.7(b) at the time post offices or facilities specifically that it is actually received by the ap- identified in the request. See paragraph propriate custodian. If a request seeks (a)(2) of this section concerning the records maintained at two or more fa- custodian of records of two or more facilities, the custodian shall be deemed cilities. to be the next senior common super- (b) Responsibilities of the custodian. (1) visor of the heads of the facilities, e.g., The custodian of the requested record district manager, area vice president. is the person responsible for deter- The Records Office is deemed to be the mining whether to comply with or to custodian, for purposes of this part, in deny the request. A custodian who is all instances in which a request is for a not an Officer as defined in § 221.8 of listing of postal employees. See this chapter, however, should not deny § 265.6(a)(6). a request until he has obtained the ad- (3) Reasons for request. In view of the vice of Chief Field Counsel. If denial of possibility that some or all of the a request appears necessary, the custo- records may be exempt from manda- dian should seek advice as soon as pos- tory disclosure, the requester may sible after receipt of the request so as

102

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00112 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.7

to provide adequate time for legal re- tion of whether to comply with the review. Denial must be made in accord- quest or ance with paragraph (d) of this section. (B) Among two or more components (2) The custodian shall make the de- of the Postal Service having substan- termination whether to release or deny tial subject matter interest in the de- the record(s) within 20 working days termination of whether to comply with (i.e., exclusive of Saturdays, Sundays, the request. 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 within the extended time limit, or an (4) The custodian shall make reason- opportunity to arrange with the custo- able efforts to search for the records in dian an alternative time frame for electronic form or format, except when processing the request or a modified re- such efforts would significantly inter- quest. The custodian shall nonetheless fere with the operation of the auto- make a determination on the request mated information system. 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

103

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00113 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.7 39 CFR Ch. I (7–1–06 Edition)

be paid by the requester before the the General Counsel, U.S. Postal Serv- record is made available or a copy is ice, Washington, DC 20260–1100. furnished unless payment is waived or (2) The requester shall submit his ap- deferred pursuant to § 265.9(g). peal in writing within 30 days of the (3) A custodian complying with a re- date of the denial or of the other action quest may designate a representative complained of, or within a reasonable to monitor any inspection or copying. time if the appeal is from a failure of (d) Denial of request. (1) A reply deny- the custodian to act. The General ing a request in whole or in part shall Counsel may, in his discretion, con- be in writing, signed by the custodian sider late appeals. or his designee, and shall include: (3) In the event of the denial of a re- (i) A statement of the reason for, or quest or of other action or failure to justification of, the denial (e.g., act on the part of a custodian from records personal in nature), including, which no appeal is taken, the General if applicable, a reference to the provi- Counsel may, if he considers that there sion or provisions of § 265.6 authorizing is doubt as to the correctness of the the withholding of the record and a custodian’s action or failure to act, re- brief explanation of how each provision view the action or failure to act as applies to the records requested. though an appeal pursuant to this section 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

104

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00114 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.8

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

105

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00115 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.8 39 CFR Ch. I (7–1–06 Edition)

or provide copies of the records or por- to be protected from disclosure under tions of records containing the busi- Exemption 4. Each record, or portion ness information. In the case of an ad- thereof, to be so designated, shall be ministrative appeal, the General Coun- clearly marked with a suitable legend sel shall be responsible for providing such as Privileged Business Informa- such notification as may be appro- tion—Do Not Release. When the des- priate under this section. ignated records contain some informa- (2) When notice is given to a sub- tion for which an exemption is not mitter under paragraph (b)(1) of this claimed, the submitter shall clearly in- section, the requester also shall be no- dicate the portions for which protec- tified that notice and an opportunity tion is sought. 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; (3) Disclosure of the information is e.g., Privileged: see letter of 4–1–91. By required by law (other than the Free- written agreement with the head of the dom of Information Act, 5 U.S.C. 552); facility, even this marking may be dis- or pensed with if it is not necessary to (4) Disclosure of the particular kind alert postal employees at that facility of information is required by a Postal of the claim of exemption. Service regulation, except that, in such (4) A designation made pursuant to case, advance written notice of a deci- paragraph (e) of this section shall be sion to disclose shall be provided to the deemed to have expired ten years after submitter if the submitter had pro- the date the records were submitted vided written justification for protec- unless the submitter requests, and pro- tion of the information under Exemp- vides reasonable justification for, a tion 4 at the time of submission or a designation period of greater duration. reasonable time thereafter. (5) The Postal Service will not deter- (e) Procedure for designating business mine the validity of any request for information at the time of its submission. confidential treatment until a request (1) Submitters of business information for disclosure of the information is re- shall use good-faith efforts to des- ceived. ignate, by appropriate markings, either (f) Opportunity to object to disclosure. at the time of submission or at a rea- Through the notice described in para- sonable time thereafter, those portions graph (b) of this section, the submitter of their submissions which they deem shall be afforded a reasonable period of

106

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00116 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.9

time within which to provide the Post- days prior to the specified disclosure al Service with a detailed written date and the requester shall be notified statement of any objection to disclo- likewise. sure. Such statement shall specify all (i) Notice of FOIA lawsuit. Whenever a grounds for withholding any of the in- requester brings suit seeking to compel formation under any exemption of the disclosure of business information, the Freedom of Information Act and, in the General Counsel shall promptly notify case of Exemption 4, shall demonstrate the submitter. why the information is contended to be [56 FR 56934, Nov. 7, 1991] a trade secret or commercial or financial information that is privileged or § 265.9 Schedule of fees. confidential. Whenever possible, the (a) Policy. The purpose of this section submitter’s claim of confidentiality is to establish fair and equitable fees to should be supported by a statement or permit the furnishing of records to certification by an officer or author- members of the public while recovering ized representative of the submitter the full allowable direct costs incurred that the information in question is in by the Postal Service. The Postal Serv- fact confidential, has not been dis- ice will use the most efficient and least closed to the public by the submitter, costly methods available to it when and is not routinely available to the complying with requests for records. public from other sources. Information (b) Standard rates—(1) Record retrieval. provided by a submitter pursuant to Searches may be done manually or by this paragraph may itself be subject to computer using existing programming. disclosure under the FOIA. (i) Manual search. The fee for a man- (g) Determination that confidential ual search is $32 per hour (fractions of treatment is warranted. If the custodian an hour are rounded to the nearest half determines that confidential treatment hour). is warranted for any part of the re- (ii) Computer search. The fee for requested records, he shall inform the re- trieving data by computer is the actual quester in writing in accordance with direct cost of the retrieval, including the procedures set out in § 265.7(d) of computer search time, and personnel this chapter, and shall advise the re- cost in effect at the time that the requester of the right to appeal. A copy trieval services are performed. The fees of the letter of denial shall also be pro- are subject to periodic revision. A copy vided to the submitter of the records in of the fees are included within the pub- any case in which the submitter had lic index. (See appendix A.) been notified of the request pursuant (2) Duplication. (i) Except where oth- to paragraph (c) of this section. erwise specifically provided in postal (h) Notice of intent to disclose. The cus- regulations, the fee for duplicating any todian, in the case of an initial request, record or publication is $.15 per page. or the General Counsel, in the case of (ii) The Postal Service may at its dis- an appeal, shall consider carefully a cretion make coin-operated copy ma- submitter’s objections and specific chines available at any location or oth- grounds for nondisclosure prior to de- erwise give the requester the oppor- termining whether to disclose business tunity to make copies of Postal Service information. In the event of a decision records at his own expense. Unless au- to disclose business information over thorized by the Records Office, how- the objection of the submitter, the sub- ever, no off-site copying shall be per- mitter shall be furnished a written no- mitted of records which, if lost, could tice which shall include: not be replaced without inconvenience (1) A description of the business in- to the Postal Service. formation to be disclosed; (iii) The Postal Service will normally (2) A statement of the reasons for furnish only one copy of any record. If which the submitter’s disclosure objec- duplicate copies are furnished at the tions were not sustained; and request of the requester, the $.15 per- (3) The specific date upon which dis- page fee shall be charged for each copy closure will occur. Such notice of in- of each duplicate page without regard tent to disclose shall be forwarded to to whether the requester is eligible for the submitter a reasonable number of free copies pursuant to paragraph (c) or

107

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00117 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.9 39 CFR Ch. I (7–1–06 Edition)

(g) of this section. At his or her discre- sought for a commercial use, but are tion, when it is reasonably necessary sought in furtherance of scholarly or because of a lack of adequate copying scientific research. These institutions facilities or other circumstances, the are defined in paragraphs (h)(6) and custodian may make the requested (h)(7) of this section, respectively. record available to the requester for in- (3) Representatives of the news media. spection under reasonable conditions Fees shall be charged only for duplica- and need not furnish a copy thereof. tion in accordance with paragraph (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 100 pages of duplication and the first this section, a requester shall be classi- two hours of search time shall be fur- fied into one of four categories: com- nished without charge. (See also para- mercial use requesters; educational and graphs (g)(1) and (g)(2) of this section.) noncommercial scientific institutions; (d) Aggregating requests. When the representatives of the news media; and custodian reasonably believes that a all other requesters. Requesters in each requester is attempting to break a re- category must reasonably describe the quest down into a series of requests in records sought. Fees shall be charged order to evade the assessment of fees, requesters in each category in accord- the custodian may aggregate the re- ance with the following. quests and charge accordingly. The (1) Commercial use requesters. Fees custodian shall not aggregate multiple shall be charged to recover the full di- requests when the requests pertain to rect costs of search, review and dupli- unrelated subject matter. Requests cation in accordance with the rates made by more than one requester may prescribed in paragraphs (b) (1) through be aggregated only when the custodian (3) of this section, subject only to the has a concrete basis on which to con- general waiver set out in paragraph clude that the requesters are acting in (g)(1) of this section. The term ‘‘com- concert specifically to avoid payment mercial use request’’ is defined in para- of fees. graph (h)(5). (e) Other costs—(1) Publications. Publi- (2) Educational and noncommercial sci- cations and other printed materials entific institutions. Fees shall be may, to the extent that they are avail- charged only for duplication in accord- able in sufficient quantity, be made ance with paragraph (b)(2) of this sec- available at the established price, if tion, except that the first 100 pages fur- any, or at cost to the Postal Service. nished in response to a particular re- Fees established for printed materials quest shall be furnished without pursuant to laws, other than the Free- charge. (See also the general waiver dom of Information Act, that specifi- provision in paragraph (g)(1) of this cally provide for the setting of fees for section.) To be eligible for the reduc- particular types of records are not sub- tion of fees applicable to this category, ject to waiver or reduction under this the requester must show that the re- section. quest is being made as authorized by (2) Other charges. When a response to and under the auspices of a qualifying a request requires services or materials institution and that the records are not other than the common one listed in

108

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00118 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.9

paragraph (b) of this section, the direct likely to exceed $250. If the requester cost of such services or materials to has a history of prompt payment of the Postal Service may be charged, but FOIA fees, the custodian shall notify only if the requester has been notified the requester of the likely cost and ob- of the nature and estimated amount of tain satisfactory assurance of full pay- such cost before it is incurred. ment before commencing work on the (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

109

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00119 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.9 39 CFR Ch. I (7–1–06 Edition)

representatives of the news media. Fees mercial requesters, reviewing) docu- shall not be charged for time spent ments to respond to a FOIA request. searching for records in response to re- Direct costs include, for example, the quests submitted by educational and salary of the employee performing noncommercial scientific institutions work (the basic rate of pay for the em- or representatives of the news media. ployee plus a factor to cover benefits) (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

110

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00120 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.11

record or portion of a record withheld periodicals (but only in those instances solely on the basis of an exemption when they can qualify as disseminators later determined not to apply must be of ‘‘news’’) who make their products reviewed again to determine the appli- available for purchase or subscription cability of other exemptions not pre- by the general public. These examples viously considered. are not intended to be all-inclusive. A (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

111

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00121 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.12 39 CFR Ch. I (7–1–06 Edition)

appropriate court order has been prop- caution the moving party as to the pos- erly served. The custodian of the sible dangers involved if the medical records may designate a postal em- information is divulged. ployee to present the records. The pres- (b) If, in the opinion of a Federal entation by a designee rather than the medical officer, the medical informa- employee named in the subpoena or tion does not indicate the presence of 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 retaining 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 FR 26386, July 23, 1986; 56 FR 55824, Oct. 30, to proper requests and upon competent 1991. Redesignated at 56 FR 56934, Nov. 7, medical advice, in accordance with the 1991; 60 FR 36712, July 18, 1995; 60 FR 57345, following criteria: 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 (i) Records contained in the files of information: the Postal Service; (a) If, in the opinion of a Federal (ii) Information relating to records medical officer, the medical informa- contained in the files of the Postal tion indicates the existence of a malig- Service; or nancy, a mental condition, or other (iii) Information or records acquired condition about which a prudent physi- or produced by the employee in the cian would hesitate to inform a person course of his or her official duties or suffering from such a condition as to because of the employee’s official sta- its exact nature and probable outcome, tus. do not release the medical information (2) This section does not create any to the employee or to any individual right or benefit, substantive or proce- designated by him, except to a physi- dural, enforceable by any person cian, designated by the employee in against the Postal Service. writing. If a subpoena or court order (3) This section does not apply to any was issued, the responding official shall of the following:

112

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00122 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.12

(i) Any legal proceeding in which the tact the Manager, Records Office, U.S. United States is a party; Postal Service, 475 L’Enfant Plaza, (ii) A demand for testimony or SW., Washington, DC 20260, telephone records made by either House of Con- (202) 268–2608. gress or, to the extent of matter within (8) Testimony means statements made its jurisdiction, any committee or sub- in connection with a legal proceeding, committee of Congress; including but not limited to state- (iii) An appearance by an employee ments in court or other forums, deposi- in his or her private capacity in a legal tions, declarations, affidavits, or re- proceeding in which the employee’s sponses to interrogatories. testimony does not relate to the em- (9) United States means the federal ployee’s official duties or the functions government of the United States and of the Postal Service; or any of its agencies, establishments, or (iv) A demand for testimony or instrumentalities, including the United records submitted to the Postal Inspec- States Postal Service. tion Service (a demand for Inspection (c) Requirements for submitting a de- Service records or testimony will be mand for testimony or records. (1) Ordi- handled in accordance with rules in narily, a party seeking to obtain § 265.11). records from the Postal Service should (4) This section does not exempt a resubmit a request in accordance with quest from applicable confidentiality the provisions of the Freedom of Infor- requirements, including the require- mation Act (FOIA), 5 U.S.C. 552, and ments of the Privacy Act. 5 U.S.C. 552a. the Postal Service’s regulations imple- (b) Definitions. The following defini- menting the FOIA at 39 CFR 265.1 tions apply to this section: through 265.9 or the Privacy Act, 5 (1) Adjudicative authority includes, U.S.C. 552a and the Postal Service’s but is not limited to, the following: regulations implementing the Privacy (i) A court of law or other judicial fo- Act at 39 CFR 266.1 through 266.9. rums, whether local, state, or federal; (2) A demand for testimony or and 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

113

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00123 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.12 39 CFR Ch. I (7–1–06 Edition)

is within the geographic boundaries of the statement described at paragraph the manager’s district, and any former (c)(2) of this section or to such portions employee whose last position was with- thereof as the General Counsel deter- in the geographic boundaries of the mines are not subject to objection. An 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. shall do the following: (3)(i) The General Counsel may allow (i) Inform the court or other author- an employee to testify or produce ity of the regulations in this section; records if the General Counsel deter- and mines that granting permission: (ii) Request that the demand be (A) Would be appropriate under the stayed pending the employee’s receipt rules of procedure governing the mat- of the General Counsel’s instructions. ter in which the demand arises and (6) If the court or other authority de- other applicable laws, privileges, rules, clines the request for a stay, or rules authority, and regulations; and that the employee must comply with (B) Would not be contrary to the in- the demand regardless of the General terest of the United States. The inter- Counsel’s instructions, the employee or est of the United States includes, but is counsel for the employee shall respect- not limited to, furthering a public in- fully decline to comply with the de- terest of the Postal Service and pro- mand, citing United States ex rel. Touhy tecting the human and financial re- v. Ragen, 340 U.S. 462 (1951), and the sources of the United States. regulations in this section. (ii) An employee’s testimony shall be (7) The General Counsel may request limited to the information set forth in the assistance of the Department of

114

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00124 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.13

Justice or a U.S. Attorney where nec- providing the witness or records, may essary to represent the interests of the include, among others: Postal Service and the employee. (i) Costs of time spent by employees, (8) At his or her discretion, the Gen- including attorneys, of the Postal eral Counsel may grant a waiver of any Service to process and respond to the procedure described by this section, demand; where waiver is considered necessary (ii) Costs of attendance of the em- to promote a significant interest of the ployee and agency attorney at any dep- United States or for other good cause. osition, hearing, or trial; (9) If it otherwise is permissible, the (iii) Travel costs of the employee and records custodian may authenticate, agency attorney; upon the request of the party seeking (iv) Costs of materials and equipment disclosure, copies of the records. No used to search for, process, and make employee of the Postal Service shall available information. respond in strict compliance with the (2) All costs for employee time shall terms of a subpoena duces tecum un- be calculated on the hourly pay of the less specifically authorized by the Gen- employee (including all pay, allowance, eral Counsel. and benefits) and shall include the (e) Postal Service employees as expert hourly fee for each hour, or portion of witnesses. No Postal Service employee each hour, when the employee is in may testify as an expert or opinion travel, in attendance at a deposition, witness, with regard to any matter hearing, or trial, or is processing or re- arising out of the employee’s official sponding to a request or demand. duties or the functions of the Postal (3) At the discretion of the Postal Service, for any party other than the Service, where appropriate, costs may United States, except that in extraor- be estimated and collected before testi- dinary circumstances, the General mony is given. Counsel may approve such expert testi- (h) Acceptance of service. This section mony in private litigation. A Postal does not in any way abrogate or modify Service employee may not testify as the requirements of the Federal Rules such an expert witness without the ex- of Civil Procedure (28 U.S.C. Appendix) press authorization of the General regarding service of process. Counsel. A litigant must obtain au- [60 FR 17224, Apr. 5, 1995, as amended at 60 thorization of the General Counsel be- FR 57345, Nov. 15, 1995; 64 FR 41291, July 30, fore designating a Postal Service em- 1999; 68 FR 56559, Oct. 1, 2003] ployee 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

115

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00125 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.13 39 CFR Ch. I (7–1–06 Edition)

part 7001, provided that employees act- (5) Employee or Inspection Service em- ing in this capacity must state for the ployee, for the purpose of this section record that their testimony reflects only, refers to a Postal Service em- their personal opinions and should not ployee currently or formerly assigned 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 (10) Official case file means official States, or any other federal agency is documents that relate to a particular not a party. The rules are intended to case or investigation. These documents promote the careful supervision of In- may be kept at any location and do not spection Service resources and to re- necessarily have to be in the same lo- duce the risk of inappropriate disclo- cation in order to constitute the file. sures that might affect postal oper- (11) Postal Inspector reports include all ations. written reports, letters, recordings, or (c) Definitions. For the purposes of other memorializations made in con- this section: junction with the duties of a Postal In- (1) Authorizing official is the person spector. responsible for giving the authoriza- (12) Testify or testimony includes both tion for release of documents or per- in-person oral statements before any mission to testify. body conducting a judicial or adminis- (2) Case or matter means any civil pro- trative proceeding and statements ceeding before a court of law, adminis- made in depositions, answers to inter- trative board, hearing officer, or other rogatories, declarations, affidavits, or body conducting a judicial or adminis- other similar documents. trative proceeding in which the United (13) Third-party action means an ac- States, the Postal Service, or another tion, judicial or administrative, in federal agency is not a named party. which the United States, the Postal (3) Demand includes any request, Service, or any other federal agency is order, or subpoena for testimony or the not a named party. production of documents. (d) Policy. (1) No current or former (4) Document means all records, pa- employee within the Inspection Service pers, or official files, including, but not may testify or produce documents con- limited to, official letters, telegrams, cerning information acquired in the memoranda, reports, studies, calendar course of employment or as a result of and diary entries, graphs, notes, his or her relationship with the Postal charts, tabulations, data analyses, sta- Service in any proceeding to which this tistical or information accumulations, section applies (see paragraph (a) of records of meetings and conversations, this section), unless authorized to do film impressions, magnetic tapes, com- so. Authorization will be provided by: puter discs, and sound or mechanical (i) The Postal Inspector in Charge of reproductions; the affected field Division, or designee,

116

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00126 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.13

for Division personnel and records, to Inspection Service employees are after that official has determined considered to be confidential and shall through consultation with Inspection not be released unless there is specific 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

117

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00127 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 265.13 39 CFR Ch. I (7–1–06 Edition)

possible assistance to the courts, but the United States, the Postal Service, the question of disclosing information or any other federal agency is not a for which an exemption may be party. A subpoena for testimony or for 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 of Inspection documents or testimony sought and all Service employees concerning matters relevant facts and circumstances. relating to their official duties and not (h) Authorization of testimony or pro- subject to the exemptions set forth in duction of documents. (1) The Chief paragraph (a) of this section shall be in Postal Inspector or the Postal Inspec- writing and conform to the require- tor in Charge of the affected field Divi- ments outlined in paragraphs (g)(2) and sion, after consulting with Inspection (g)(3) of this section. Service legal counsel, shall determine (2) Before or simultaneously with whether testimony or the production of service of a demand described in para- documents will be authorized. graph (g)(1) of this section, the request- (2) Before authorizing the requested ing party shall serve on the Counsel, testimony or the production of docu- Office of the Chief Postal Inspector, 475 ments, the Chief Postal Inspector or L’Enfant Plaza SW., Washington, DC the Postal Inspector in Charge of the 20260–2181, an affidavit or declaration affected field Division shall consider containing the following information: the following factors: (i) The title of the case and the forum (i) Statutory restrictions, as well as where it will be heard; any legal objection, exemption, or (ii) The party’s interest in the case; privilege that may apply; (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 not be provided and used in place of the (v) Prevention of expenditures of gov- requested testimony; ernment time and resources solely for (vii) The intended use of the docu- private purposes. ments or testimony; and (3) If, in the opinion of the author- (viii) An affirmative statement that izing official, the documents should not the documents or testimony is nec- be released or testimony should not be essary for defending or prosecuting the furnished, that official’s decision is case at issue. final. (3) The Counsel, Office of the Chief (4) Inspection Service legal counsel Postal Inspector, shall act as agent for may consult or negotiate with the the receipt of legal process for demands party or the party’s counsel seeking for production of records or testimony testimony or documents to refine and of Inspection Service employees where limit the demand, so that compliance

118

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00128 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 265.13

is less burdensome, or obtain informa- (i) Legal counsel has advised the em- tion necessary to make the determina- ployee that an appearance is inappro- tion whether the documents or testi- priate, as in cases where the subpoena, mony will be authorized. If the party summons, or other court order was not 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

119

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00129 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 265, App. A 39 CFR Ch. I (7–1–06 Edition)

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

120

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00130 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 266.4

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

121

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00131 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 266.4 39 CFR Ch. I (7–1–06 Edition)

individual’s refusal to furnish the num- risdiction within or under the control ber unless it must be provided by Fed- of the United States for a civil or eral law. criminal law enforcement activity, if (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 Act (5 U.S.C. 552); tomers. The disclosure of lists of names (ii) To those officers and employees or addresses of Postal customers or of the Postal Service who have a need other persons to the public is prohib- 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

122

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00132 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 266.5

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

123

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00133 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 266.6 39 CFR Ch. I (7–1–06 Edition)

agency is expected to publish the no- (2) Third party inquiries. Anyone de- tice. The notice must be sent to Con- siring to review or copy records per- gress and OMB 40 days, and published taining to another person must have at least thirty (30) days, prior to (1) ini- the written consent of that person. tiation of any matching activity under (3) Period for response by custodian. a new or substantially revised pro- Upon receipt of an inquiry, the custo- gram, or (2) expiration of the existing dian will respond with an acknowledge- matching agreement in the case of a ment of receipt within ten (10) days. If renewal of a continuing program. the inquiry requires the custodian to determine whether a particular record [40 FR 45724, Oct. 2, 1975; 40 FR 48512, Oct. 16, 1975, as amended at 45 FR 44272, July 1, 1980; exists, the inquirer shall be informed of 59 FR 37161, July 21, 1994; 60 FR 57345, Nov. 15, this determination as a part of the ac- 1995; 64 FR 41291, July 30, 1999; 68 FR 56560, knowledgement letter. Oct. 1, 2003; 69 FR 34935, June 23, 2004] (b) Compliance with Request for Ac- cess—(1) Notification of time and place for § 266.6 Procedures for requesting in- inspection. When a requested record has spection, copying, or amendment of been identified and is to be disclosed, records. the custodian shall ensure that the The purpose of this section is to pro- record is made available promptly and vide procedures by which an individual shall immediately notify the requester may have access and request amend- where and when the record will be ment to personal information within a available for inspection or copying. Privacy Act System of Records. Postal Service records will normally be (a) Submission of Requests—(1) Manner available for inspection and copying of submission. Inquiries regarding the during regular business hours at the contents of records systems or access postal facilities at which they are or amendment to personal information maintained. The custodian may, how- should be submitted in writing to the ever, designate other reasonable loca- custodian of the official record, if tions and times for inspection and known, or to the Manager, Records Of- copying of some or all of the records fice, U.S. Postal Service, 475 L’Enfant within his custody. Plaza SW., Washington, DC 20260, tele- (2) Identification of requester. The re- phone (202) 268–2608. Requests sub- quester must present personal identi- mitted to the Office of Inspector Gen- fication sufficient to satisfy the custo- eral should be submitted to the Free- dian as to his identity prior to record dom of Information Act/Privacy Offi- review. Examples of sufficient identi- cer, Office of Inspector General, 1735 fication are a valid driver’s license, North Lynn Street, Arlington, Vir- Medicare card, and employee identi- ginia, 22209–2020. Inquiries should be fication cards. clearly marked, ‘‘Privacy Act Re- (3) Responsibilities of requester. The request’’. Any inquiry concerning a spe- quester shall assume the following re- cific system of records should provide sponsibilities regarding the review of the Postal Service with the informa- official personal records: tion contained under ‘‘Notification’’ (i) Requester must agree not to leave for that system as published in the Postal Services premises with official FEDERAL REGISTER. If the information records unless specifically given a copy supplied is insufficient to locate or for that purpose by the custodian or his identify the record, the requester will representative. be notified promptly and, if possible, (ii) Requester must sign a statement informed of additional information re- indicating he has reviewed a specific quired. If the requester is not a Postal record(s) or category of record. Service employee, he should designate (iii) Requester may be accompanied the post office at which he wishes to by a person he so chooses to aid in the review or obtain copies of records. inspection of information; however, re- Amendment requests contest the rel- quester must furnish the Postal Serv- evance, accuracy, timeliness or com- ice with written authorization for such pleteness of the record and will include review in that person’s presence. a statement of the amendment re- (4) Special rules for medical records. A quested. medical record shall be disclosed to the

124

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00134 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 266.7

requester to whom it pertains unless, § 266.7 Appeal procedure. in the judgment of the medical officer, (a) Appeal Procedure. (1) If a request access to such record could have an adverse effect upon such individual. When to inspect, copy, or amend a record is the medical officer determines that the denied, in whole or in part, or if no de- disclosure of medical information termination is made within the period 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 any information that is found to be in- (4) The decision of the General Coun- complete, inaccurate, not relevant to a sel, constitutes the final decision of the statutory purpose of the Postal Serv- Postal Service on the right of the re- ice, or not timely and notify the requester to inspect, copy, change, or up- quester when this action is complete, date a record. The decision on the ap- or peal shall be in writing and in the (2) Not later than thirty (30) working event of a denial shall set forth the days after receipt of a request to reasons for such denial and state the amend, notify the requester of a deter- individual’s right to obtain judicial re- mination not to amend and of the review in a district court. An indexed file quester’s right to appeal, or to submit, of decisions on appeals shall be main- in lieu of an appeal, a statement of rea- tained by the General Counsel. sonable length setting forth a position (b) Submission of Statement of Disagree- regarding the disputed information to ment. If the final decision concerning a be attached to the contested personal request for the amendment of a record record. does not satisfy the requester, any (d) Availability of Assistance in Exer- statement of reasonable length pro- cising Rights. The Manager, Records Of- vided by that individual setting forth a fice is available to provide an indi- position regarding the disputed infor- vidual with assistance in exercising mation will be accepted and attached rights pursuant to this part. to the relevant personal record. [40 FR 45723, Oct. 2, 1975, as amended at 45 FR [40 FR 45723, Oct. 2, 1975, as amended at 41 FR 44272, July 1, 1980; 51 FR 26386, July 23, 1986; 24709, June 18, 1976; 45 FR 44273, July 1, 1980; 60 FR 57345, Nov. 15, 1995; 64 FR 41291, July 30, 51 FR 26386, July 23, 1986; 60 FR 57345, Nov. 15, 1999; 67 FR 16024, Apr. 4, 2002; 68 FR 56560, 1995; 64 FR 41291, July 30, 1999; 68 FR 56560, Oct. 1, 2003] Oct. 1, 2003]

125

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 266.8 39 CFR Ch. I (7–1–06 Edition)

§ 266.8 Schedule of fees. § 266.9 Exemptions. (a) Policy. The purpose of this section (a) Subsections 552a(j) and (k) of 5 is to establish fair and equitable fees to U.S.C. 552a empower the Postmaster permit duplication of records for sub- General to exempt systems of records ject individuals (or authorized rep- meeting certain criteria from various resentatives) while recovering the full other subsections of 5 U.S.C. 552a. With allowable direct costs incurred by the respect to systems of records so ex- Postal Service. empted, nothing in this part shall require compliance with provisions here- (b) Duplication. (1) For duplicating of implementing any subsections of 5 any paper or micrographic record or U.S.C. 552a from which those systems publication or computer report, the fee have been exempted. is $.15 per page, except that the first (b) Paragraph (b)(1) of this section 100 pages furnished in response to a contains a summary of provisions of 5 particular request shall be furnished U.S.C. 552a for which exemption is without charge. See paragraph (d) of claimed for some systems of records this section for fee limitations. pursuant to, and to the extent per- (2) The Postal Service may at its dis- mitted by, subsections 552a(j) and (k) of cretion make coin-operated copy ma- 5 U.S.C. 552a. Paragraphs (b)(2) through chines available at any location. In (5) of this section identify the exempt- that event, requesters will be given the ed systems of records, the exemptions opportunity to make copies at their applied to each, and the reasons for the own expense. exemptions: (3) The Postal Service normally will (1) Explanation of provisions under 5 not furnish more than one copy of any U.S.C. 552a for which an exemption is record. If duplicate copies are fur- claimed in the systems discussed below. (i) nished at the request of the requester, Subsection (c)(3) requires an agency to 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 that is relevant and necessary to ac- to be charged is notified in writing of complish a purpose required by statute the approximate costs before they are or executive order of the President. incurred. Costs are calculated in ac- (v) Subsection (e)(2) requires an agen- cordance with the schedule of fees at cy to collect information to the great- § 265.9. est extent practicable directly from [52 FR 38230, Oct. 15, 1987, as amended at 59 the subject individual when the infor- FR 37161, July 21, 1994; 68 FR 56560, Oct. 1, mation may result in adverse deter- 2003] minations about an individual’s rights,

126

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 266.9

benefits, and privileges under federal File System, USPS 700.000; Mail Cover programs. Program Records, USPS 700.100; and In- (vi) Subsection (e)(3) requires an spector General Investigative Records, agency to inform each person whom it USPS 700.300, are exempt from sub- asks to supply information of the au- sections 552a (c)(3), (c)(4), (d)(1)–(4), thority under which the information is (e)(1)–(3), (e)(4) (G) and (H), (e)(5), (e)(8), sought, the purposes for which the in- (f), (g), and (m) because the systems formation will be used, the routine contain information pertaining to the 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 dence obtained; content. (C) Enable the subject of an inves- (viii) Subsection (e)(5) requires an tigation to avoid detection or appre- agency to maintain its records with hension; such accuracy, relevance, timeliness, (D) Subject confidential sources, wit- and completeness as is reasonably nec- nesses, and law enforcement personnel essary to ensure fairness to the indi- to harassment or intimidation if their vidual in making any determination identities were released to the target of about the individual. an investigation; (ix) Subsection (e)(8) requires an (E) Constitute unwarranted invasions agency to make reasonable efforts to of the personal privacy of third parties serve notice on an individual when any who are involved in a certain investiga- record on such individual is made tion; available to any person under compul- (F) Intimidate potential witnesses sory legal process when such process and cause them to be reluctant to offer becomes a matter of public record. information; (x) Subsection (f) requires an agency (G) Lead to the improper influencing to establish procedures whereby an in- of witnesses, the destruction or alter- dividual can be notified upon request if ation of evidence yet to be discovered, any system of records named by the in- the fabrication of testimony, or the dividual contains a record pertaining compromising of classified material; to the individual, obtain access to the and record, and request amendment. (H) Seriously impede or compromise (xi) Subsection (g) provides for civil law enforcement, mail cover, or back- remedies if an agency fails to comply ground investigations that might in- with the access and amendment provi- volve law enforcement aspects as a re- sions of subsections (d)(1) and (d)(3), sult of the above. and with other provisions of 5 U.S.C. (ii) Application of subsections (e)(1) 552a, or any rule promulgated there- and (e)(5) is impractical because the under, in such a way as to have an ad- relevance, necessity, or correctness of verse effect on an individual. specific information might be estab- (xii) Subsection (m) requires an agen- lished only after considerable analysis cy to cause the requirements of 5 and as the investigation progresses. As U.S.C. 552a to be applied to a con- to relevance (subsection (e)(1)), effec- tractor operating a system of records tive law enforcement requires the to accomplish an agency function. keeping of information not relevant to (2) Pursuant to subsection 552a(j)(2), a specific Postal Inspection Service in- Emergency Management Records, USPS vestigation or Office of Inspector Gen- 500.300; Inspection Service Investigative eral investigation. Such information

127

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00137 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 266.9 39 CFR Ch. I (7–1–06 Edition)

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

128

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00138 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 266.9

to suspicious transactions would be im- vidual should be appointed to or re- practical, however, because the rel- tained in a position. For this reason, evance or necessity of specific informa- exemption from subsection (e)(1) is tion can often be established only after claimed. 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

129

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00139 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 266.10 39 CFR Ch. I (7–1–06 Edition)

use of these materials. It is not feasible (c) Lead time. Proposals must be sub- to develop entirely new examinations mitted to the Postal Service Manager after each administration as would be Records Office at least 3 months in ad- necessary if questions or answers were vance of the anticipated starting date 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: [70 FR 22513, Apr. 29, 2005] (i) The purpose and legal authority for conducting the matching program; § 266.10 Computer matching. (ii) The justification for the program (a) General. Any agency or Postal and the anticipated results, including, Service component that wishes to use when appropriate, a specific estimate records from a Postal Service auto- of any savings in terms of expected mated system of records in a computer- costs and benefits, in sufficient detail ized comparison with other postal or for the Data Integrity Board to make non-postal records must submit its pro- an informed decision; posal to the Postal Service Manager (iii) A description of the records that Records Office. Computer matching are to be matched, including the data programs as defined in paragraph (c) of elements to be used, the number of § 262.5 must be conducted in accordance records, and the approximate dates of with the Privacy Act, implementing the matching program; guidance issued by the Office of Man- (iv) Procedures for providing notice agement and Budget and these regula- to individuals who supply information tions. Records may not be exchanged that the information may be subject to for a matching program until all proce- verification through computer match- dural requirements of the Act and ing programs; these regulations have been met. Other (v) Procedures for verifying informa- matching activities must be conducted tion produced in a matching program in accordance with the Privacy Act and and for providing individuals an oppor- with the approval of the Manager, tunity to contest the findings in ac- Records Office. See paragraph (b)(6) of cordance with the requirement that an § 266.4. agency may not take adverse action (b) Procedure for submission of match- against an individual as a result of in- ing proposals. A proposal must include formation produced by a matching pro- information required for the matching gram until the agency has independ- agreement discussed in paragraph (d)(1) ently verified the information and proof this section. The Inspection Service vided the individual with due process; must submit its proposals for matching (vi) Procedures for ensuring the ad- programs and other matching activi- ministrative, technical, and physical ties to the Postal Service Manager security of the records matched; for Records Office through: Independent the retention and timely destruction of Counsel, Inspection Service, U.S. Post- records created by the matching pro- al Service, 475 L’Enfant Plaza SW, Rm gram; and for the use and return or de- 3417, Washington, DC 20260–2181. All struction of records used in the pro- other matching proposals, whether gram; from postal organizations or other gov- (vii) Prohibitions concerning duplica- ernment agencies, must be mailed dition and redisclosure of records ex- rectly to: Manager, Records Office, changed, except where required by law U.S. Postal Service, 475 L’Enfant Plaza or essential to the conduct of the SW., Washington, DC 20260. matching program;

130

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 267.3

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

131

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 267.4 39 CFR Ch. I (7–1–06 Edition)

(b) Custodians. All custodians are re- the same as information that is cur- sponsible for insuring that information rently classified. security standards and procedures are (3) In the Custody of the Postal Service followed and that all relevant employ- means any national security informa- ees participate in the information se- tion transmitted to and held by the curity awareness programs. U.S. Postal Service for the information [40 FR 45726, Oct. 2, 1975, as amended at 60 FR and use of postal officials. (This does 57345, Nov. 15, 1995; 68 FR 56560, Oct. 1, 2003] not include any national security information in the U.S. Mails.) § 267.4 Information security standards. (c) Responsibility and authority. (1) (a) The Postal Service will operate The Manager, Payroll Accounting and under a uniform set of information se- Records, serves as the USPS National curity standards which address the fol- Security Information Oversight Offi- lowing functional aspects of informa- cer. This officer shall: tion flow and management: (i) Conduct an active oversight pro- (1) Information system development, gram to ensure that the appropriate 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 authoriza- [40 FR 45726, Oct. 2, 1975; 40 FR 48512, Oct. 16, tion: 1975] (A) Discloses national security information properly classified under the § 267.5 National Security Information. Executive order, or prior orders, (a) Purpose and scope. The purpose of (B) Compromises properly classified this section is to provide regulations information through negligence, or implementing Executive Order 12356 (C) Violates any provisions of these National Security Information (herein- regulations or procedures; after referred to as the Executive (iv) Establish, staff, and direct ac- Order) which deals with the protection, tivities for controlling documents con- handling and classification of national taining national security information security information. at USPS Headquarters and to provide (b) Definitions. (1) In this section, Na- functional direction to the field. tional Security Information means infor- (v) In conjunction with the USPS Se- mation on the national defense and for- curity Officer, prepare and issue in- eign relations of the United States that structions for the control, protection, has been determined under the Execu- and derivative classification of native Order or prior Orders to require tional security information in the cus- protection against unauthorized disclo- tody of, and use by, the Postal Service. sure and has been so designated. These instructions shall include re- (2) Derivative Classification means the quirements that: carrying forward of a classification (A) A demonstrable need for access to from one document to a newly created national security information is estab- document that contains national secu- lished before requesting the initiation rity information which is in substance of administrative clearance procedures;

132

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 267.5

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

133

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00143 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 268 39 CFR Ch. I (7–1–06 Edition)

(iii) The Postal Service shall forward vide guidance in this regard to all em- all FOIA and mandatory review re- ployees who must handle such informa- quests for national security information. tion in its custody (including that (b) No employee will maintain a secret within records derivatively classified system of records about individuals. All by the USPS) to the originating agency records systems containing personally for review unless the agency objects on identifiable information about individ- the grounds that its association with uals must be reported to the Manager, the information requires protection. Records Office. The requester shall be notified that: (c) All employees shall adhere strict- (A) The request was referred; and ly to the procedures established by the (B) The originating agency will provide a direct response. U.S. Postal Service to ensure the con- (4) Research requests. Requests from fidentiality and integrity of informa- historical researchers for access to nation about individuals that is collected, tional security information shall be re- maintained and used for official Postal ferred to the originating agency. Service business. Employees shall be 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 FR 30069, May 7, 1980; 49 FR 22476, May 30, [45 FR 44273, July 1, 1980, as amended at 60 1984; 60 FR 57345, 57346, Nov. 15, 1995; 64 FR FR 57346, Nov. 15, 1995; 68 FR 56560, Oct. 1, 41291, July 30, 1999; 68 FR 56560, Oct. 1, 2003] 2003]

§ 268.2 Consequences of non-compli- PART 268—PRIVACY OF INFORMA- ance. TION—EMPLOYEE RULES OF CONDUCT (a) The Privacy Act authorizes any individual, whether or not an em- Sec. ployee, to bring a civil action in U.S. 268.1 General principles. District Court to obtain judicial review 268.2 Consequences of non-compliance. of the failure of the Postal Service to AUTHORITY: 39 U.S.C. 401; 5 U.S.C. 552a. comply with the requirements of the Act or its implementing regulations. In § 268.1 General principles. certain instances of willful or inten- In order to conduct its business, the tional non-compliance, the plaintiff Postal Service has the need to collect may recover damages from the Postal various types of personally identifiable Service in the minimum amount of information about its customers, em- $1,000 together with costs of the action ployees and other individuals. Informa- and attorney fees. tion of this nature has been entrusted (b) The Act provides criminal sanc- to the Postal Service, and employees tions for individuals, including employ- handling it have a legal and ethical ob- ees, who violate certain of its provi- ligation to hold it in confidence and to sions. actively protect it from uses other (1) Any officer or employee who, by than those compatible with the pur- virtue of his employment or position, pose for which the information was col- has possession of, or access to, official lected. This obligation is legally im- records which contain individually posed by the Privacy Act of 1974, which identifiable information and who, places specific requirements upon all knowing that disclosure of the specific Federal agencies, including the Postal Service, and their employees. In imple- material is prohibited by Postal Serv- mentation of these requirements, the ice regulations, willfully discloses the following rules of conduct apply: material to a person or agency not en- (a) Except as specifically authorized titled to receive it, shall be guilty of a in § 266.4(b)(2) of this chapter, no em- misdemeanor and fined not more than ployee shall disclose, directly or indi- $5,000. rectly, the contents of any record (2) Any officer or employee who will- about another individual to any person fully maintains a system of records or organization. Managers are to pro-

134

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00144 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 273.2

without meeting the notice require- § 273.2 Definitions. ments set forth in Postal Service regu- (a) Claim means any request, demand, lations shall be guilty of a mis- or submission: demeanor and fined not more than (1) Made to the Postal Service for $5,000. property, services, or money (including (3) Any person who knowingly and money representing grants, loans, in- willfully requests or obtains any record surance, or benefits); or concerning another individual from the (2) Made to a recipient of property, Postal Service under false pretense services, or money from the Postal shall be guilty of a misdemeanor and Service or to a party to a contract with fined not more than $5,000. the Postal Service: (c) In addition to the criminal sanc- (i) For property or services if the tions, any employee violating any pro- United States: visions of these rules of conduct is sub- (A) Provided such property or serv- ject to disciplinary action which may ices; 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. has the effect of decreasing an obliga- 273.7 Concurrence of Attorney General. tion to pay or account for property, 273.8 Issuance of complaint. services, or money. 273.9 Collection of civil penalties or assess- (b) Complaint refers to the adminis- ments. trative Complaint served by the Re- 273.10 Reports. viewing Official on a Respondent pur- AUTHORITY: 31 U.S.C. Chapter 38; 39 U.S.C. suant to § 273.8. 401. (c) Investigating Official refers to the Inspector General of the Postal Service SOURCE: 52 FR 12901, Apr. 20, 1987, unless 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 rate of basic pay is not less than the This part establishes procedures for minimum rate of basic pay for grade imposing civil penalties and assess- GS–16 under the General Schedule. ments under the Program Fraud Civil (d) Judicial Officer refers to the Judi- Remedies Act of 1986 (codified at 31 cial Officer or Acting Judicial Officer U.S.C. 3801–3812) against any person of the United States Postal Service or who makes, submits, or presents, or for purposes other than specified in causes to be made, submitted, or pre- § 962.21 of this title any designee within sented, a false fictitious, or fraudulent the Judicial Officer Department. claim or written statement to the (e) Knows or has reason to know, for Postal Service. Procedures governing purposes of establishing liability under the hearing and appeal rights of any 31 U.S.C. 3802, means that, with respect person alleged to be liable for such pen- to a claim or statement, although no alties and assessments are set forth in proof of specific intent to defraud is re- part 962 of this title. quired, a person:

135

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00145 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 273.3 39 CFR Ch. I (7–1–06 Edition)

(1) Has actual knowledge that the § 273.3 Liability for false claims and claim or statement is false, fictitious, statements. or fraudulent; Section 3802 of title 31, United States (2) Acts in deliberate ignorance of the Code, provides for liability as follows: truth or falsity of the claim or state- (a) Claims. (1) Any person who makes, ment; or presents, or submits, or causes to be (3) Acts in reckless disregard of the made, presented, or submitted, a claim truth or falsity of the claim or state- that the person knows or has reason to ment. know— (f) Person refers to any individual, (i) Is false, fictitious, or fraudulent; partnership, corporation, association, or or private organization. (ii) Includes or is supported by any (g) Postmaster General refers to the written statement asserting a material Postmaster General of the United fact which is false, fictitious, or fraud- States or his designee. ulent; or (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 such material fact; or (j) Reviewing Official refers to the (iv) Is for payment for the provision General Counsel of the Postal Service of property or services which the per- or any designee within the Law Depart- son has not provided as claimed ment who serves in a position for 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. (3) A claim shall be considered made, (1) With respect to a claim or to ob- presented, or submitted to the Postal tain the approval or payment of a Service, recipient, or party when such claim (including relating to eligibility claim is actually made to an agent, fis- to make a claim); or cal intermediary, or other entity, in- (2) With respect to (including relat- cluding any State or political subdivi- ing to eligibility for)— sion thereof, acting for or on behalf of (i) A contract with, or a bid or pro- the Postal Service, recipient, or party. posal for a contract with; or (4) Each claim for property, services, (ii) A grant, loan, or benefit from, the or money is subject to the civil penalty Postal Service, or any State, political referred to in paragraph (a)(1) of this subdivision of a State, or other party, section regardless of whether such if the United States Government pro- property, service, or money is actually vides any portion of the money or prop- delivered or paid. erty under such contract or for such (5) If the Government has made pay- grant, loan, or benefit, or if the Gov- ment on a claim, a person subject to ernment will reimburse such State, po- the civil penalty referred to in para- litical subdivision, or party for any graph (a)(1) of this section shall also be portion of the money or property under subject to an assessment of not more such contract or for such grant, loan or than twice the amount of such claim or benefit. twice the amount of that portion [52 FR 12901, Apr. 20, 1987, as amended at 56 thereof that is determined to be in vio- FR 55825, Oct. 30, 1991; 67 FR 16024, Apr. 4, lation of paragraph (a)(1) of this sec- 2002] tion. This assessment shall be in lieu of

136

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00146 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 273.5

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

137

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00147 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 273.6 39 CFR Ch. I (7–1–06 Edition)

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

138

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00148 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 273.9

only if the Attorney General or his des- which are set forth in part 962 of this ignee approves such action in a written title; and statement which specifies: (7) Notifies the Respondent that his (1) That the Attorney General or his or her failure to request a hearing on designee approves the referral to the the issues raised by the Complaint Judicial Officer of the allegations of li- within 30 days of its receipt may result ability set forth in the notice described in the imposition of the proposed pen- in § 273.6; and alty and assessments pursuant to (2) That the initiation of a pro- §§ 962.4(a) and 962.15(d) of this title. ceeding under the Program Fraud Civil (b) Service of a Complaint issued Remedies Act is appropriate. under paragraph (a) of this section (b) If at any time after the Attorney must be effected by registered or cer- General approves the referral of a case tified mail, return-receipt requested, or to the Judicial Officer, the Attorney by personal delivery. In the case of personal 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 § 273.8 Issuance of complaint. FR 55825, Oct. 30, 1991] (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.

139

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00149 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 273.10 39 CFR Ch. I (7–1–06 Edition)

§ 273.10 Reports. will be the responsibility of the sec- (a) Not later than October 31 of each tional center director of customer serv- year, the Postmaster General shall pre- ices at the office of mailing to give pare and transmit to the appropriate known mailers timely notification of committees and subcommittees of the the incident and its effect on their mail Congress an annual report summa- shipment(s). rizing actions taken under the Pro- [39 FR 20974, June 17, 1974, as amended at 40 gram Fraud Civil Remedies Act during FR 2179, Jan. 10, 1975] the most recent 12-month period ending the previous September 30. § 281.2 Action required by processing (b) The report referred to in para- postal officials. graph (a) of this section shall include Postal officials processing salvable the following information for the pe- mail recovered from the scene of an ac- riod covered by the report: cident or catastrophe are responsible (1) A summary of matters referred by for giving timely notification of the in- the Investigating Official to the Re- cident to the sectional center director viewing Official under this part; of customer services at the office of (2) A summary of matters trans- mailing. The notification should in- mitted to the Attorney General under clude, but not be limited to: this part; (a) The determinable names of the (3) A summary of all hearings con- major mailers involved; ducted by a Presiding Officer under (b) The nature and extent of damage part 962 of this title, and the results of or destruction; such hearings; and (c) Anticipated delivery delay; and (4) A summary of the actions taken (d) If known, the shipment delivery during the reporting period to collect destination(s). any civil penalty or assessment imposed under the Program Fraud Civil [39 FR 20974, June 17, 1974, as amended at 40 Remedies Act. FR 2179, Jan. 10, 1975] § 281.3 Postal inspector responsibil- Damage to or Destruction of Firm ities. Mailings The postal inspector investigating the incident should assure that the PART 281—FIRM MAILINGS DAM- processing postal officials are fulfilling AGED OR DESTROYED THROUGH their notification responsibilities on a TRANSPORTATION ACCIDENTS timely basis. Should the situation arise OR CATASTROPHES where no postal officials are involved in processing affected mail, then the Sec. investigating postal inspector will take 281.1 Notification of firm mailers. necessary action to insure that appro- 281.2 Action required by processing postal priate notification is made. officials. 281.3 Postal inspector responsibilities. [39 FR 20974, June 17, 1974] 281.4 Disclaimer. § 281.4 Disclaimer. AUTHORITY: 39 U.S.C. 401, 403, and 404. The Postal Service will not be liable § 281.1 Notification of firm mailers. in damages for any loss occasioned by any failure to notify firm mailers in Whenever bulk firm mail shipments accordance with this part of damage to are involved in transportation acci- or destruction of firm mailings. dents or catastrophes, such as train or highway accidents, fire, flood, etc., it [39 FR 20974, June 17, 1974]

140

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00150 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER E—RESTRICTIONS ON PRIVATE CARRIAGE OF LETTERS

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

141

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00151 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 310.1 39 CFR Ch. I (7–1–06 Edition)

movement of checks or drafts within or catalog. An item distributed pri- 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 treat- tioner, or similar source, to a person ed 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 pro- (ix) Photographic material being sent ceedings, and orders of courts and of by a person to a processor and proc- quasi-judicial bodies. essed photographic material being re- (iv) Newspapers and periodicals. turned from the processor to the per- (v) Books and catalogs consisting of son sending the material for proc- 24 or more bound pages with at least 22 essing. printed, and telephone directories. Sep- (x) Copy sent from a person to an arate letters of less than 24 bound and independent or company-owned printer 22 printed pages bound to other mate- or compositor, or between printers and rial do not qualify for this exclusion. In compositors, and proofs or printed determining whether separate letters matter returned from the printer or have been bound to other material, the compositor to the office of the person following factors will be considered, who initially sent the copy. along with any other relevant factors: (xi) Sound recordings, films, and Whether the parts are visually similar; packets of identical printed letters whether the parts were printed and containing messages all or the over- bound together at the same time and whelming bulk of which are to be dis- by the same process; whether the bind- seminated to the public. The ‘‘public’’ ing serves an important purpose and does not include individuals residing at has been a longstanding practice; and the place of address; individuals em- whether the same individual reads all ployed by the organization doing busi- parts of the bound document. Ordi- ness at the place of address (whether or narily, books and catalogs deal with not the actual place of employment is matters of interest to, and are intended the place of address); individuals who for, a substantial number of recipients. are members of an organization, if an In addition, books generally contain a organization is located at the place of substantial number of pages. Accord- address; or other individuals who, indi- ingly, this exclusion will not apply vidually or as members of a group, are when the nature of the message con- reasonably identifiable to the sender. veyed, the limited numbers of pub- (xii) Computer programs recorded on lished copies and of recipients, the lim- media suitable for direct input. For the ited number of pages, or other relevant conditions under which the Private Ex- factors suggest that it is not appro- press Statutes are suspended for data priate to treat the material as a book processing materials, see § 320.2.

142

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00152 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 310.2

(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 ‘‘let- (ii) The amount of postage which ters’’ 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.

143

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00153 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 310.3 39 CFR Ch. I (7–1–06 Edition)

(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

144

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00154 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service Pt. 320

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 Chi- place where they will be consolidated cago Rates and Classification Service or otherwise utilized does not fall with- Center (RCSC) 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] organization’s point of mail delivery to its branches in the locality does not § 310.6 Advisory opinions. constitute a separation. An advisory opinion on any question [39 FR 33211, Sept. 16, 1974, as amended at 44 arising under this part and part 320 of FR 52834, Sept. 11, 1979; 45 FR 59873, Sept. 11, this chapter may be obtained by writ- 1980] ing the Senior Counsel, Ethics and In- formation, U.S. Postal Service, 475 § 310.4 Responsibility of carriers. L’Enfant Plaza SW., Washington, DC Private carriers are cautioned to 20260–1127. A numbered series of advi- make sure that their carriage of mat- sory opinions is available for inspec- ter is lawful within the definition, ex- tion by the public in the Library of the ceptions, suspension, and conditions U.S. Postal Service, and copies of indi- contained in this part and in part 320 of vidual opinions may be obtained upon this chapter. They should take reason- payment of charges for duplicating able measures to inform their cus- services. tomers of the contents of these regula- [69 FR 54006, Sept. 7, 2004] 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.

145

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00155 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 320.1 39 CFR Ch. I (7–1–06 Edition)

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 Na- tional Administrator for the Private 1 Several of the items enumerated in Express Statutes, U.S. Postal Service, § 310.1(a)(7) do not self-evidently lie outside RCSC, 3900 Gabrielle Lane, Rm. 111, of the definition of ‘‘letter’’. To the extent, Fox Valley, IL 60597–9599, of their in- however, that there is any question whether tention to establish such operations these items may properly be excluded by definition, the Postal Service has determined not later than the beginning of such by adoption of these regulations that the re- operations. Such notification, on a strictions of the Private Express Statutes form available from the office of the are suspended pursuant to 39 U.S.C. 601(b). National Administrator for the Private

146

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00156 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 320.4

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

1 Information relates exclusively to operations under the suspension for data processing materials. This form should be used for an initial notice of operations and for any amendments to the initial or subsequent notices.

147

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00157 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 320.5 39 CFR Ch. I (7–1–06 Edition)

for assuring that only letters of bona hours or by noon of the addressee’s fide student or faculty organizations next business day. The suspension is addressed to campus destinations are available only if the value or useful- carried. (See § 310.4.) For purposes of ness of the letter would be lost or this suspension, ‘‘internal mail sys- greatly diminished if it is not delivered tems’’ are those which carry letters on, within these time limits. For any part between, and among the various cam- of a shipment of letters to qualify puses of a single college or university under this paragraph (b), each of the and which operate in accordance with letters must be extremely urgent. 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’’ graph (b)(1) of this section are applica- means origins or destinations outside ble to letters dispatched and delivered the contiguous 48 states. wholly within Alaska, Hawaii, Puerto Rico or a territory or possession of the [44 FR 52835, Sept 11, 1979] United States. The regulations provided in paragraph (b)(2) of this section § 320.6 Suspension for extremely ur- relating to the delivery and dispatch of gent letters. letters are applicable by analogy to (a) The operation of 39 U.S.C. 601(a) letters shipped between these jurisdic- (1) through (6) and § 310.2(b) (1) through tions and other nations. (6) of this chapter is suspended on all (c) It will be conclusively presumed post routes for extremely urgent let- that a letter is extremely urgent and is ters if the conditions of either para- covered by the suspension if the graph (b) or (c) of this section, and of amount paid for private carriage of the the other paragraphs of this section, letter is at least three dollars or twice are met. the applicable U.S. postage for First- (b)(1) For letters dispatched within 50 Class Mail (including priority mail) miles of the intended destination, de- whichever is the greater. If a single livery of those dispatched by noon shipment consists of a number of let- must be completed within 6 hours or by ters that are picked up together at a the close of the addressee’s normal single origin and delivered together to business hours that day, whichever is a single destination, the applicable later, and delivery of those dispatched U.S. postage may be computed for pur- after noon and before midnight must be poses of this paragraph as though the completed by 10 A.M. of the addressee’s shipment constituted a single letter of next business day. For other letters, the weight of the shipment. If not actu- delivery must be completed within 12 ally charged on a letter-by-letter or

148

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00158 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 320.6

shipment-by-shipment basis, the violation for the purpose of this para- amount paid may be computed for pur- graph (e) and shall shift to the shipper poses of this paragraph on the basis of or carrier the burden of establishing the carrier’s actual charge divided by a the fact of compliance. Revocation of bona fide estimate of the average num- this suspension as to a shipper or car- ber of letters or shipments during the rier shall in no way limit other actions period covered by the carrier’s actual as to such shipper or carrier to enforce charge. the Private Express Statutes by admin- (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 Post- the application of this suspension. al 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 distrib- utes 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

149

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00159 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 320.7 39 CFR Ch. I (7–1–06 Edition)

on expenditures for personnel, supplies, utili- by the company within 48 hours of their re- ties, and other goods and services. Nothing ceipt at the central office, though the com- substantial turns on whether these materials pany normally begins processing the applica- arrive the same day or by 10 a.m. of the next tions soon after their receipt. Nothing sub- business day or whether their transmission stantial turns on whether these bound appli- takes a day or more longer to complete. The cations arrive within 12 hours or by noon of private carriage of these materials would not the next business day or whether their trans- qualify under the test set out in paragraph mission takes a day or more longer to com- (b) of this section. plete. The private carriage of these mate- 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 applica- dental to the shipment of the merchan- tions it has taken in that day to the company’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

150

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00160 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 320.9

merchandise or the periodical has been apply to the subsequent carriage from New ordered by or would otherwise be sent York to Europe. to the recipient even without the ac- (b) This suspension shall not permit companying advertisement. the shipment or carriage of a letter or (ii) Notwithstanding § 320.7(a)(2)(i), an letters out of the mails to any foreign advertisement is not incidental to the country for subsequent delivery to an merchandise when the pertinent cir- address within the United States. cumstances, such as the nominal value 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 remailing. proceeding instituted by the General 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 by country of destination and merges them the Private Express Statutes by admin- with letters of other firms to those countries istrative proceedings for collection of 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 international remailing applies to the carriage by [51 FR 29638, Aug. 20, 1986] 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 accounting department of firm D’s home of- amended in accordance with § 310.7. No fice. The accounting department uses the in- revocation of the suspension provided formation in the bills to prepare its reports in § 320.2 will curtail operations of par- 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 interrupted in New York by the delivery to firm the revocation in a particular market D’s home office. The suspension for inter- served prior to the revocation. Should national 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

151

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00161 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 320.9 39 CFR Ch. I (7–1–06 Edition)

continuing operations under this sec- support estimates of past operating tion, will be required to provide reason- levels in particular markets. ably complete and accurate data to [44 FR 52835, Sept. 11, 1979. Redesignated at 44 FR 61181, Oct. 24, 1979]

152

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00162 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER F—PERSONNEL

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’’ 447.42 Additional prohibited political activi- does not include the Governors of the ties. Postal 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

153

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00163 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 447.31 39 CFR Ch. I (7–1–06 Edition)

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 3 Vice Presidents, and such other per- of Executive Order No. 10927, of March 18, sons as the Ethical Conduct Officer 1961, 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] 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

154

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00164 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 447.41

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]

155

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00165 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 447.42 39 CFR Ch. I (7–1–06 Edition)

§ 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 the Postal Service. He is not forbidden ‘‘nonpartisan election’’, which is an by this paragraph, however, from dis- election at which none of the can- playing a picture, including a person- didates are to be nominated or elected ally autographed picture of a political as representing 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.

156

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00166 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 491.1

(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

157

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00167 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 491.2 39 CFR Ch. I (7–1–06 Edition)

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 number is required in order to permit these regulations may be included. Em- processing; otherwise, the garnishment ployees are not authorized to redirect will be returned marked ‘‘Insufficient or 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

158

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00168 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 491.8

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

159

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00169 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 491.9 39 CFR Ch. I (7–1–06 Edition)

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.

160

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00170 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER G—POSTAGE PROGRAMS

PART 501—AUTHORIZATION TO of its specific powers to prescribe post- MANUFACTURE AND DISTRIBUTE age and provide evidence of payment of POSTAGE METERS postage under 39 U.S.C. 404(a)(2) and (4). Sec. (b) Due to the potential for adverse 501.1 Postage evidencing system/infrastruc- impact upon Postal Service revenue, ture authorization. the following activities may not be en- 501.2 Manufacturer qualification. gaged in by any person or concern 501.3 Changes in ownership or control, without prior, written approval of the bankruptcy, or insolvency. 501.4 Burden of proof standard. Postal Service: 501.5 Suspension and revocation of author- (1) Producing or distributing any ization. postage evidencing system that gen- 501.6 Specifications. erates U.S. postage. 501.7 Test plans. (2) Repairing, distributing, refur- 501.8 Submission of each model. 501.9 Security testing. bishing, remanufacturing, or destroy- 501.10 Meter approval. ing any component of a postage evi- 501.11 Conditions for approval. dencing system that accounts for or 501.12 Suspension and revocation of ap- authorizes the printing of U.S. postage. proval. (3) Owning or operating an infra- 501.13 Reporting and Communications. 501.14 Administrative sanction on report- structure that maintains operating ing. data for the production of U.S. postage, 501.15 Materials and workmanship. or accounts for U.S. postage purchased 501.16 Breakdown and endurance testing. for distribution through a postage evi- 501.17 Protection of printing dies and keys. dencing system. 501.18 Secure destruction. 501.19 Destruction of meter stamps. (4) Owning or operating an infra- 501.20 Inspection of new and rebuilt meters. structure that maintains operating 501.21 Keys and setting equipment. data that is used to facilitate licensing 501.22 Inventory control. or registration with the Postal Service 501.23 Distribution controls. of users of a postage evidencing sys- 501.24 Administrative sanction. tem. 501.25 Meter replacement. 501.26 Inspection of meters in use. (c) Any person or entity seeking au- 501.27 Meters not located. thorization to perform any activity de- 501.28 Protection and control of internal scribed in paragraph (b) of this section and security components. must submit a request to the Postal 501.29 Computerized remote postage meter Service in person or in writing. resetting. 501.30 Licensee information. (d) Approval shall be based upon satisfactory evidence of the applicant’s in- AUTHORITY: 5 U.S.C. 552(a); 39 U.S.C. 101, tegrity and financial responsibility, 401, 403, 404, 410, 2601, 2605; Inspector General Act of 1978, as amended (Pub. L. 95–452, as and commitment to the security of the amended), 5 U.S.C. App. 3. postage evidencing system, and a determination that disclosure to the ap- SOURCE: 60 FR 30726, June 9, 1995, unless otherwise noted. plicant of the Postal Service customer, financial, or other data of a commer- § 501.1 Postage evidencing system/in- cial nature necessary to perform the frastructure authorization. function for which approval is sought (a) Postage evidencing systems would be appropriate and consistent produce evidence of prepayment of U.S. with good business practices within the postage by any method other than meaning of 39 U.S.C. 410 (c)(2). The postage stamps or permit imprint. Postal Service may condition its ap- They include but are not limited to proval on the agreement to under- postage meters and PC Postage  sys- takings by the applicant that would tems. The Postal Service considers the give the Postal Service appropriate as- infrastructure associated with such surance of the applicant’s ability to systems to be essential to the exercise meet its obligations under this section,

161

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00171 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.2 39 CFR Ch. I (7–1–06 Edition)

including but not limited to the meth- Service may continue to fund routine od and manner of performing certain fi- inspections outside the continental nancial, security, and servicing func- United States as it has in the past, pro- tions and the need to maintain suffi- vided the costs are not associated with cient financial reserves to guarantee particular security issues related to a uninterrupted performance of not less manufacturer’s product, or with the than 3 months of operation. start-up or implementation of a new (e) Qualification and approval may be plant or of a new or substantially based upon conditions agreed to by the changed manufacturing process. Postal Service and the applicant. The (1) When conducting an inspection applicant is approved in writing to en- outside the continental United States, gage in the function(s) for which au- the Postal Service will make every ef- thorization was sought and approved. fort to combine the inspection with (f) The Postal Service functional area other inspections in the same general charged with administering authoriza- geographic area in order to enable af- tion as described in this part 501 is the fected manufacturers to share the Postage Technology Management pro- costs. The Postal Service team con- gram office. All submissions cited ducting such inspections will be lim- throughout all sections of 39 CFR part ited to the minimum number necessary 501 are to be made to this office in per- to conduct the inspection. All air trav- son or via U.S. mail to 1735 N. Lynn el will be contracted for at the rates Street Room 5011, Rosslyn, VA 22209– 6370 or via fax to 703–292–4073. Inquiries for official government business, when may be made via telephone to 703–292– available, under such rules respecting 3691, and information updates may be class of travel as apply to those Postal found on the U.S. Postal Service Web Service representatives inspecting the page at www.usps.com/postagesolutions/ facility at the time the travel occurs. flash.htm. (2) If political or other impediments prevent the Postal Service from con- [69 FR 60090, Oct. 7, 2004; 69 FR 61085, Oct. 14, ducting security evaluations of meter 2004, as amended at 69 FR 67508, Nov. 18, 2004] manufacturing facilities in foreign § 501.2 Manufacturer qualification. countries, Postal Service approval to distribute meters produced in those fa- Any concern wanting authorization cilities may be suspended until such to manufacture and/or lease postage time as satisfactory inspections may meters for use by licensees under Do- be conducted. P030 must: mestic Mail Manual (d) Have, or establish, and keep under (a) Satisfy the Postal Service of its its active supervision and control ade- integrity and financial responsibility; quate facilities for the control, dis- (b) Obtain approval of at least one tribution, and maintenance of meters meter model incorporating all the fea- and their replacement or secure dis- tures and safeguards specified in § 501.6; posal or destruction when necessary. (c) Have, or establish, and keep under its supervision and control, adequate [60 FR 30726, June 9, 1995, as amended at 67 production facilities suitable to carry FR 69479, Nov. 18, 2002; 67 FR 71843, Dec. 3, out the provisions of §§ 501.15 through 2002] 501.21 to the satisfaction of the Postal Service. The production facilities must § 501.3 Changes in ownership or con- be subject to unannounced inspection trol, bankruptcy, or insolvency. by representatives of the Postal Serv- (a) Any person or entity authorized ice. If the provider’s production facili- under § 501.1 must promptly notify the ties are located outside the continental Postal Service when it has a reasonable United States, the provider will be re- expectation that there may be a sponsible for all reasonable and nec- change in its ownership or control in- essary travel-related costs incurred by cluding changes in the ownership of an the Postal Service to conduct the in- affiliate which exercises control over spections. Travel-related costs are de- its postage evidencing system oper- termined in accordance with Postal ations in the United States. A change Service Handbook F–15, Travel and Re- of ownership or control within the location. At its discretion, the Postal meaning of this section includes entry

162

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00172 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.5

into a strategic alliance or other agree- the violation was willful, whether the ment whereby the third party has ac- manufacturer voluntarily admitted to cess to data related to the security of the violation, whether the manufac- the system or the third party is a com- turer cooperated with the Postal Serv- petitor to the Postal Service. Any per- ice, whether the manufacturer imple- son or entity seeking to acquire owner- mented successful remedial measures) ship or control of a person or entity au- and on the manufacturer’s performance thorized under § 501.1 must provide the history. Before determining whether a Postal Service satisfactory evidence manufacturer’s authorization to manu- that it satisfies the conditions for ap- facture and/or distribute meters should proval stated in § 501.1. Early notifica- be revoked, the procedures in para- tion of a proposed change in ownership graph (c) of this section shall be fol- or control will facilitate expeditious lowed. review of an application to acquire (c) Suspension in all cases shall be as ownership or control under this sec- follows: tion. (1) Upon determination by the Postal (b) Any person or entity authorized Service that a manufacturer is in vio- under § 501.1 must promptly notify the lation of the provisions in this part 501, Postal Service when it has a reasonable the Postal Service shall issue a written expectation that there may be a notice of proposed suspension citing de- change in the status of its financial ficiencies for which suspension of au- condition either through bankruptcy, thorization to manufacture and/or dis- insolvency, assignment for the benefit tribute a specific meter or class of me- of creditors, or other similar financial ters may be imposed under paragraph action. Any person or entity author- (c)(2) of this section. Except in cases of ized under § 501.1 who experiences a willful violation, the manufacturer change in the status of its financial shall be given an opportunity to cor- condition may, at the discretion of the rect deficiencies and achieve compli- Postal Service, have its authorization ance with all requirements within a under § 501.1 modified or terminated. time limit corresponding to the poten- [69 FR 60091, Oct. 7, 2004] tial risk to postal revenue. (2) In cases of willful violation, or if § 501.4 Burden of proof standard. the Postal Service determines that the The burden of proof is on the Postal manufacturer has failed to correct Service in adjudications of suspension cited deficiencies within the specified and revocation under §§ 501.5 and 501.12 time limit, the Postal Service shall and administrative sanctions under issue a written notice setting forth the §§ 501.14 and 501.23. Except as otherwise facts and reasons for the decision to indicated in those sections, the stand- suspend and the effective date if a writ- ard of proof shall be the preponderance- ten defense is not presented as provided of-evidence standard. in paragraph (d) of this section. (3) If, upon consideration of the de- § 501.5 Suspension and revocation of fense as provided in paragraph (e) of authorization. this section, the Postal Service deems (a) The Postal Service may suspend that the suspension is warranted, the and/or revoke authorization to manu- suspension shall remain in effect for up facture and/or distribute any or all of a to 90 days unless withdrawn by the manufacturer’s postage meters if the Postal Service, as provided in para- manufacturer engages in any unlawful graph (c)(4)(iii) of this section. scheme or enterprise, fails to comply (4) At the end of the 90-day suspen- with any provision in this part 501, or sion, the Postal Service may: fails to implement instructions issued (i) Extend the suspension in order to in accordance with any final decision allow more time for investigation or to issued by the Postal Service within its allow the manufacturer to correct the authority over the meter program. problem; (b) The decision to suspend or revoke (ii) Make a determination to revoke a manufacturer’s authorization shall authorization to manufacture and/or be based on the nature and cir- distribute the manufacturer’s meters cumstances of the violation (whether in part or in whole; or

163

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00173 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.6 39 CFR Ch. I (7–1–06 Edition)

(iii) Withdraw the suspension based multiples of the smallest unit printed on identification and implementation (multidenomination) or the currency of a satisfactory solution to the prob- value of the impressions made lem. Manufacturer suspensions may be (omnidenomination). The printing die withdrawn before the end of the 90- or dies, counters, and counteractuating day period if the Postal Service deter- mechanism must be inseparable from mines that the manufacturer’s solution the meter, except by the manufacturer. and implementation are satisfactory. (c) In each meter, there must be two (d) The manufacturer may present accurate and dependable counting de- the Postal Service with a written devices: one ascending and registering fense to any suspension or revocation the total imprinted, the other descend- determination within 30 calendar days ing and registering the unused postage of receiving the written notice (unless balance. The descending register must a shorter period is deemed necessary). actuate a locking mechanism that pre- The defense must include all sup- vents further operation of the meter porting evidence and state with speci- after the register descends to zero or ficity the reasons for which the order an amount less than the largest de- should not be imposed. nomination printable in one operation. (e) After receipt and consideration of In electronic meters, the locking de- the defense, the Postal Service shall vice must prevent printing if the advise the manufacturer of the decision amount to be printed reduces the de- and the facts and reasons for it. The decision shall be effective on receipt scending register to less than zero. The unless it provides otherwise. The deci- construction of the descending register sion shall also advise the manufacturer must allow the post office to set any that it may appeal that determination amount of postage or number of im- within 30 calendar days of receiving pressions within its capacity, prepaid written notice (unless a shorter time by the licensee. frame is deemed necessary), as speci- (d) The entire meter must be encased fied therein. The appeal must include in a substantial housing to which un- all supporting evidence and state with authorized access cannot be gained specificity the reasons the manufac- without creating obvious damage. The turer believes that the decision is erro- descending register must be accessible neous. to the post office by a door equipped (f) An order or final decision under with a suitable lock and with provision this section does not preclude any for a post office seal. The requirement other criminal or civil statutory, com- that accessibility to the descending mon law, or administrative remedy register be restricted does not apply to that is available by law to the Postal Computerized Remote Postage Meter Service, the United States, or any Resetting System electronic meters other person or concern. that have no access to the descending register of the meter. Descending reg- § 501.6 Specifications. isters on this type of meter are reset Postage meters must incorporate all electronically by coded input only. The the following features and safeguards: ascending register and all other compo- (a) A postage meter is the postage nents must be so shielded as not to be printing die and postage registering accessible even when the door is open. mechanism of a mailing machine. It The readings of both registers must be may be integral with the mailing ma- easily obtainable at any time between chine or separable. In either case, the operations, by visibility through closed licensee must be able to take the meter windows, by imprint on tape or card, or to the post office for setting or exam- by a combination of the two methods. ination. The construction of the housing must (b) A meter may be capable of print- make it impossible to alter the reading one denomination of postage and ings of the ascending register except by registering the number of such impres- normal operation or impossible to gain sions made (single denomination), or it access to the internal components, ex- may be capable of printing varying de- cept for setting the descending register nominations and registering either under § 501.20(c), without mutilation.

164

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00174 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.7

(e) The printing die must either con- ternal power applied and with suffi- form in design to one already in use or cient redundancy to be self-checking. be approved by the Postal Service. The (2) Be able to display the amounts in die must include the serial number of both the ascending and the descending the meter and identification of the registers (not necessarily at the same manufacturer, and the die must be so time). constructed or shielded that it is not (3) Be able to display, free from acci- practically possible without proper dental changes, the next amount of registration in the ascending and de- postage to be printed. scending register to obtain imprints (4) Be resettable by Postal Service fraudulently. The die must be attached employees, preferably without cus- to the meter in a manner (such as with tomized equipment. breakoff screws) that it is not practicable to remove or replace the die (5) Contain a fault-detection device fraudulently. for computational security that auto- (f) The meter die must include a post- matically locks out the meter and pre- mark to print the name of the city and vents printing of additional postage in state from which mail is dispatched the event of malfunction. and the date of mailing, except as spec- (6) Meet Postal Service test specifica- ified by the Postal Service. Informa- tions in United States Postal Service tion that must appear in the meter Specification, Postage Meters, Elec- postmark and the location of that post- tronic, Postal Service-M–942 (RDC). mark must be as specified by the Post- Persons wanting to manufacture elec- al Service. tronic meters may obtain a copy of (g) A meter may be designed to print this Postal Service test specification a meter slogan or ad plate to the left from Postal Service Headquarters. of, and next to, the postmark. The size (j) Auxiliary equipment required for and position of a meter slogan or ad the operation of the meters must be plate must not interfere with or ob- part of the final production models scure the meter stamp or postmark, submitted for Postal Service approval. and it must be possible to install the Failure of the auxiliary equipment, plate easily without exposing the which could cause malfunction in meter stamp die. Plates must be made meter operation, is considered the of suitable, durable material that does same as a meter failure. not soften or disintegrate while in use. Plates must be well-fitted and so se- § 501.7 Test plans. curely fastened to the printing mecha- To receive Postal Service approval, a nism that they do not become loose or postage meter must be tested. Manu- detached or otherwise interfere with facturers of electronic meters must proper operation of a meter. submit a detailed test plan to the Post- (h) The entire meter must be of suffi- al Service for approval at least 60 days ciently solid, substantial, and depend- before conducting the tests. The test able construction that protects the plan must include tests that, if passed Postal Service amply against loss of revenue from fraud, manipulation, by a meter, prove compliance by the misoperation, or breakdown. meter with all postal requirements. The test plan must list the parameters (i) In addition to the features and safeguards above, electronic meters to be tested, test equipment, proce- must: dures, test sample sizes, and test data (1) Have either nonvolatile ascending formats. Also, the plan must include and descending registers or a solid- detailed descriptions, specifications, state memory that stores the data for design drawings, schematic diagrams, the ascending and descending registers. and explanations of the purposes of all Solid-state memories that rely on ap- special test equipment and non- plied voltage for memory retention standard or noncommercial instrumen- must be powered by batteries with a tation. minimum support life of 5 years from the date of battery renewal with no ex-

165

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00175 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.8 39 CFR Ch. I (7–1–06 Edition)

§ 501.8 Submission of each model. that includes an explanation of how the device is reset as well as rec- Each meter model proposed for man- ommended methods for detecting evi- ufacture must be approved by the Post- dence of tampering. al Service after testing at the manu- (c) As a condition of approval, the facturer’s expense. A preliminary manufacturer has a continuing obliga- working model that meets the speci- tion to provide the Postal Service with fications in § 501.6 may be submitted for copies of service manuals and updates tentative approval. No meter of any to setting instructions. The manufac- model may be distributed or used for turer must also promptly provide Re- postage payment until a complete unit tail Systems and Equipment, Postal made to production drawings and speci- Service Headquarters, with any addi- fications is submitted, tested, and ap- tional documentation on request. proved, unless authorized for prelimi- (d) On request by the Postal Service, nary field testing. additional meters must be submitted § 501.9 Security testing. to the Postal Service for testing, at the expense of the manufacturer. The Postal Service reserves the right to require or conduct additional exam- § 501.12 Suspension and revocation of ination and testing at any time, with- approval. out cause, of any meter submitted to (a) The Postal Service may suspend the Postal Service for approval or ap- meter approval under § 501.10 if the proved by the Postal Service for manu- Postal Service has probable cause to facture and distribution. believe that a manufacturer’s meter or class of meters poses an unreasonable § 501.10 Meter approval. risk to postal revenue. Suspension of As provided in § 501.13, the manufac- approval to manufacture or distribute turer has a duty to report security a meter or class of meters in whole or weaknesses to the Postal Service to en- in part shall be based on the potential sure that each meter model and every risk to postal revenue. Before deter- meter in service protects the Postal mining whether approval of a meter or Service against loss of revenue at all class of meters should be revoked, the times. A grant of approval of a model procedures in paragraph (b) of this sec- does not constitute an irrevocable de- tion shall be followed. termination that the Postal Service is (b) Suspension in all cases shall be as satisfied with the revenue-protection follows: capabilities of the model. After ap- (1) Upon determination by the Postal proval is granted to manufacture and Service that a meter poses an unrea- distribute a meter, no change affecting sonable risk to postal revenue, the the basic features or safeguards of a Postal Service shall issue a written no- meter may be made except as author- tice of proposed suspension citing defi- ized or ordered by the Postal Service in ciencies for which suspension may be writing. imposed under paragraph (b)(2) of this section. The manufacturer shall be § 501.11 Conditions for approval. given an opportunity to correct defi- (a) The Postal Service may require, ciencies and achieve compliance with and reserves future rights to require, all requirements within a time limit that production models of approved corresponding to the potential risk to meters be deposited with the Postal postal revenue. Service. (2) If the Postal Service determines (b) The manufacturer must provide that the manufacturer has failed to copies of resetting and inspection correct cited deficiencies within the media to each licensing post office be- specified time limit, the Postal Service fore distribution. The contents of the shall issue a written notice setting media must explain how the meter is forth the facts and reasons for the deci- reset and describe any special or sion to suspend and the effective date if unique features of the meter. The man- a written defense is not presented as ufacturer must also provide a training provided in paragraph (c) of this sec- video for any new metering product tion.

166

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00176 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.13

(3) If, upon consideration of the de- § 501.13 Reporting and Communica- fense as provided in paragraph (d) of tions. this section, the Postal Service deems (a) For purposes of this section, that the suspension is warranted, the ‘‘manufacturer’’ refers to the author- suspension shall remain in effect for up ized postage meter manufacturer in to 90 days unless withdrawn by the § 501.1 and its foreign affiliates, subsidi- Postal Service, as provided in para- aries, assigns, dealers, independent graph (b)(4)(iii) of this section. dealers, employees, and parent cor- (4) At the end of the 90-day suspen- porations. sion, the Postal Service may: (b) Each authorized meter manufac- (i) Extend the suspension in order to turer in § 501.1 must submit a prelimi- allow more time for investigation or to nary report to notify the Postal Serv- allow the manufacturer to correct the ice promptly (in no event more than 21 problem; calendar days of discovery or 21 cal- (ii) Make a determination to revoke endar days from June 30, 1995) of the the approval of the manufacturer’s following: meter or class of meters; or (1) All findings or results of any test- (iii) Withdraw the suspension based ing known to the manufacturer con- on identification and implementation cerning the security or revenue protec- of a satisfactory solution to the prob- tion features, capabilities, or failings of any meters sold, leased, or distrib- lem. Manufacturer suspensions may be uted by the manufacturer that have withdrawn before the end of the 90-day been approved for sale, lease, or dis- period if the Postal Service determines tribution by the Postal Service or any that the manufacturer’s solution and foreign postal administration; or have implementation are satisfactory. been submitted for approval by the (c) The manufacturer may present manufacturer to the Postal Service or the Postal Service with a written de- other foreign postal administration(s). fense to any suspension or revocation (2) All potential security weaknesses determination within 30 calendar days or methods of meter tampering of the of receiving the written notice (unless meters that the manufacturer distrib- a shorter period is deemed necessary). utes of which the manufacturer knows The defense must include all sup- or should know, and the meter or porting evidence and state with speci- model subject to each method. These ficity the reasons for which the order potential security weaknesses include should not be imposed. but are not limited to suspected equip- (d) After receipt and consideration of ment defects, suspected abuse by a the written defense, the Postal Service meter licensee or manufacturer em- shall advise the manufacturer of the ployee, suspected security breaches of decision and the facts and reasons for the Computerized Remote Postage it. The decision shall be effective on re- Meter Resetting System, occurrences ceipt unless it provides otherwise. The outside normal performance, or any re- decision shall also advise the manufac- peatable deviation from normal meter turer that it may appeal that deter- performance (within the same model mination within 30 calendar days of re- family and/or by the same licensee). ceiving written notice (unless a shorter (c) Within 45 days of the preliminary period is deemed necessary), as speci- notification of the Postal Service fied therein. The appeal must include under § 501.13(b), the manufacturer all supporting evidence and state with must submit a written report to the specificity the reasons that the manu- Postal Service. The report must in- facturer believes that the decision is clude the circumstances, proposed in- erroneous. vestigative procedure, and the antici- (e) An order or final decision under pated completion date of the investiga- this section does not preclude any tion. The manufacturer must also pro- other criminal or civil statutory, com- vide periodic status reports to the mon law, or administrative remedy Postal Service during subsequent in- that is available by law to the Postal vestigation and, on completion, must Service, the United States, or any submit a summary of the investigative other person or concern. findings.

167

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00177 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.14 39 CFR Ch. I (7–1–06 Edition)

(d) The manufacturer must establish (c) The manufacturer may present and adhere to timely and efficient pro- the Postal Service with a written de- cedures for internal reporting of poten- fense to the proposed action within 30 tial security weaknesses. The manufac- calendar days of receipt. The defense turer is required to submit a copy of must include all supporting evidence internal reporting procedures and in- and state with specificity the reasons structions to the Postal Service for re- for which the sanction should not be view. imposed. (e) Authorized postage meter manu- (d) After receipt and consideration of facturers and distributors, and their the defense, the Postal Service shall agents and employees, must not inten- advise the manufacturer of the decision tionally misrepresent to customers of and the facts and reasons for it; the de- the Postal Service decisions, actions, cision shall be effective on receipt un- or proposed actions of the Postal Serv- less it provides otherwise. The decision ice respecting its regulation of postage shall also advise the manufacturer that meters in the United States. The Post- it may, within 30 calendar days of real Service reserves the right to suspend ceiving written notice, appeal that de- and/or revoke the authorization to termination as specified therein. manufacture and/or distribute postage (e) The manufacturer may submit a meters throughout the United States written appeal to the Postal Service or in any part thereof under § 501.5 within 30 calendar days of receipt of when the manufacturer, distributor, or the decision. The appeal must include agent or employee of either fails to all supporting evidence and state with comply with this requirement. specificity the reasons that the manufacturer believes that the administra- [60 FR 30726, June 9, 1995, as amended at 70 tive sanction was erroneously imposed. FR 1349, Jan. 7, 2005] The submission of an appeal stays the effectiveness of the sanction. § 501.14 Administrative sanction on re- (f) The imposition of an administra- porting. tive sanction under this section does (a) Notwithstanding any act, admis- not preclude any other criminal or sion, or omission by the Postal Service civil statutory, common law, or admin- before June 30, 1995, an authorized post- istrative remedy that is available by age meter manufacturer may be sub- law to the Postal Service, the United ject to an administrative sanction for States, or any other person or concern. failing to comply with § 501.13. (b) The Postal Service shall deter- § 501.15 Materials and workmanship. mine all costs and revenue losses meas- All meters must adhere to the qual- ured from the date that the manufac- ity in materials and workmanship of turer knew, or should have known, of a the approved production model and potential security weakness, including, must be manufactured with suitable but not limited to, administrative and jigs, dies, tools, etc., to ensure proper investigative costs and documented maintenance and interchangeability of revenue losses that result from any parts. meter for which the manufacturer failed to comply with any provision in § 501.16 Breakdown and endurance § 501.13. The Postal Service shall re- testing. cover any and all such costs and losses Each meter model proposed for man- (net of any amount collected by the ufacturing must pass without error or Postal Service from the licensees or breakdown the following described meter users) with interest by issuing a printing cycle endurance test, which written notice to the manufacturer set- includes operation of the printing ting forth the facts and reasons on mechanism with proper registration of which the determination to impose the the selected postage value in both the sanction is based. The notice shall ad- ascending and descending registers. At vise the manufacturer of the date that reasonably frequent intervals, the the action takes effect if a written de- manufacturer must take meters at ran- fense is not presented within 30 cal- dom from production and subject them endar days of receipt of the notice. to breakdown tests to make certain

168

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00178 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.21

that quality and performance stand- Postage Technology Management for ards are maintained. approval prior to any meter destruc- (a) For meters that operate at 100 or tion. Manufacturers/distributors must more printing cycles per minute—4 record and retain the serial numbers of million cycles. For meters that operate the meters to be destroyed, and provide at less than 100 printing cycles per the list in electronic form in accord- minute (and cannot be used inter- ance with Postal Service requirements changeably on power-base machines for postage meter accounting and that operate at 100 or more printing cy- tracking systems. Manufacturers/dis- cles per minute)—2 million cycles. tributors must give sufficient advance (b) For multidenomination and notice of the destruction to allow the omnidenomination meters, postage manager of Postage Technology Man- value selection elements must be test- agement to schedule observation by ed for one-half million operations. A Postage Technology Management or its complete operation includes selection designated representative. The Postal of a value and return to zero. Service representative must ensure (c) Balance register lockout oper- that the serial numbers of the meters ation must be done at the start of, at destroyed are the same as the serial intervals during, and after the printing numbers recorded by the manufacturer/ cycle test. distributor on the list of destroyed meters, and that the destruction is per- § 501.17 Protection of printing dies formed in accordance with a Postal and keys. Service-approved method or process. During the process of fabricating (b) These requirements for meter de- parts and assembling postage meters, struction apply to all postage meters, the manufacturer must exercise due postage evidencing systems, and postal care to prevent loss or theft of keys or security devices included as a compo- of serially numbered postage-printing nent of a postage evidencing system. dies or component parts (such as de- [66 FR 55097, Nov. 1, 2001] nomination-printing dies, or auxiliary power supply and meter-setting equip- § 501.19 Destruction of meter stamps. ment for electronic meters) that might All meter stamps printed in the proc- be used in some manner to defraud the ess of testing dies or meters must be Postal Service of revenue. All serially collected and destroyed daily. numbered printing dies produced should be accounted for by assembly [60 FR 30726, June 9, 1995. Redesignated at 66 into meters or by evidence of mutila- FR 55097, Nov. 1, 2001] tion or destruction. Postage printing dies removed from meters and not suit- § 501.20 Inspection of new and rebuilt meters. able for reassembly must also be mutilated so that the dies cannot be used or All new and rebuilt meters must be they must be completely destroyed. inspected carefully before leaving the manufacturer’s meter service station. § 501.18 Secure destruction. [60 FR 30726, June 9, 1995. Redesignated at 66 (a) Authorized meter manufacturers/ FR 55097, Nov. 1, 2001] distributors may destroy meters, when required, in accordance with methods § 501.21 Keys and setting equipment. approved in advance by the manager of The meter manufacturer must fur- Postage Technology Management. The nish keys and other essential equip- postage meter must be rendered comment for setting the meters to all post pletely inoperable by the destruction offices under whose jurisdiction its me- process and associated postage-printing ters are licensed for use. These items dies must be destroyed in accordance must be protected and must not be fur- with § 501.17. Manufacturers/distribu- nished to persons not authorized by the tors must submit the proposed destruc- Postal Service to possess them. The tion method; a schedule listing the me- Postal Service shall maintain control ters to be destroyed, by serial number over the procurement, manufacture, and model; and the proposed time and and distribution of meter security place of destruction to the manager of seals. Manufacturers must reimburse

169

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00179 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.22 39 CFR Ch. I (7–1–06 Edition)

the Postal Service promptly for the (3) Any authorized third party must cost of the seals. All costs associated keep adequate facilities for and records with meter security seals are appor- of meters and their components in ac- tioned twice annually to the meter cordance with paragraph (a) of this sec- manufacturers by the installed base of tion. All such facilities and records are each manufacturer. subject to inspection by Postal Service [60 FR 30726, June 9, 1995. Redesignated at 66 representatives, insofar as they are FR 55097, Nov. 1, 2001] used to distribute, control, store, maintain, repair, replace, destroy, or dis- § 501.22 Inventory control. pose of meters. (a) An authorized manufacturer must (4) The manufacturer must ensure maintain sufficient facilities for and that any party acting in its behalf in records of the distribution, control, any of the functions described in para- storage, maintenance, repair, replace- graph (a) of this section maintains ade- ment, and destruction or disposal of all quate facilities, records, and proce- meters and their components to enable dures for the security of the meters. accurate accounting thereof through- Deficiencies in the operations of a out the entire meter life cycle. Record- third party relating to the custody and keeping is required for all meters in- control of postage meters, unless cor- cluding newly produced meters, active rected in a timely manner, can place at leased meters, inactive meters, un- risk a manufacturer’s approval to man- leased meters, and lost or stolen me- ufacture and/or distribute postage meters. All such facilities and records are ters. subject to inspection by Postal Service (5) The Postal Service reserves the representatives. right to review all aspects of any third- (b) If the manufacturer uses a third party relationship when it becomes party to perform functions that may aware that the relationship poses a affect meter security, including, but threat to meter security under para- not limited to meter repair, mainte- graph (b)(2) of this section, whether or nance, and disposal, the manager of not that relationship required author- Postage Technology Management, ization under paragraph (b) of this sec- Postal Service Headquarters, must re- tion. view in advance all aspects of the relationship, as they relate to the custody [68 FR 2698, Jan. 21, 2003] and control of meters, and must spe- § 501.23 Distribution controls. cifically authorize in writing the arrangement between the parties. Each authorized postage meter man- (1) Postal Service authorization of a ufacturer must do the following: third-party relationship for a given (a) Hold title permanently to all me- function does not extend to any other ters of its manufacture except those function. Extension of the third-party purchased by the Postal Service. relationship to another function must (b) On behalf of applicants, transmit be implemented and approved as if it electronically copies of completed PS were a new relationship. Forms 3601–A, Application for a Li- (2) No third-party relationship shall cense to Lease and Use Postage Meters, compromise the security of the meter, to the designated Postal Service cen- or of any of its components, including, tral processing facility. but not limited to, the hardware, soft- (c) Lease meters only to parties that ware, communications, and security have valid licenses issued by the Postal components, or of any system with Service. which it interfaces, including, but not (d) Supply only those meter slogan or limited to, the resetting system, read plates that meet the Postal Service porting systems, and Postal Service requirements for suitable quality and support systems. The functions of the content. third party with respect to a meter, its (e) (1) Have all meters set, sealed (if components, and the systems with applicable), and checked into service which it interfaces are subject to the by the appropriate Postal Service rep- same scrutiny as the equivalent func- resentative before delivering them to tions of the manufacturer. licensees. Meters must be checked into

170

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00180 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.23

service at the licensing post office, un- tems. Ensure that no employee of the less the meter is serviced under the on- meter manufacturer or any third-party site meter-setting program. changes, interferes with, or performs (2) The meter manufacturer must any element of the Postal Service em- present the meter and a completed PS ployee’s established checkout and Form 3601–C, Postage Meter Installa- withdrawal process for any meter, un- tion, Withdrawal, or Replacement, to less approval for the change in proce- the appropriate Postal Service rep- dures is granted in writing by the Post- resentative when checking a meter al Service. into service. (h) Handle faulty meters, including (3) A meter should show a zero in the those that are inoperable, those that descending register before being are misregistering or the registers are checked into service. If a zero is not unreadable, those that inaccurately re- shown, the initial payment must in- flect their current status, those that clude the residual amount the locked- show any evidence of tampering or out meter could not imprint. abuse, and those for which there is in- (f) Notify Computerized Remote formation or other indication that the Postage Meter Resetting System li- meter has some mechanical or elec- censees of the dates on which meter ex- trical malfunction of any critical secu- aminations are due, and notify the li- rity component, such as any compo- censing post offices of CMRS meters nent the improper operation of which that have not been reset during the could adversely affect Postal Service previous 3 months and/or are due for an revenues, or of any memory compo- annual examination. Resetting trans- nent, or that affects the accuracy of actions must not be completed by the the registers or the accuracy of the manufacturer if the meters are not value printed, as follows: taken to the post office for examina- (1) Ensure that all functions required tion by the due date. Licensees who do to handle faulty meters are completed not bring in their meters after the ini- in a timely manner and in accordance tial manufacturer notification must be with Postal Service regulations and approached again within 15 days, pref- procedures. erably by personal contact. If a re- (2) Begin the process to retrieve any sponse is not received within another faulty meter within 2 business days of 15 days, the Postal Service shall notify being notified of a problem. the licensee that the meter is to be re- (3) Complete PS Form 3601–C, Post- moved from service and the meter li- age Meter Activity Report, in the pres- cense revoked, following the proce- ence of the licensee and obtain the li- dures for revocation specified by regu- censee’s signature on the form con- lation. The Postal Service shall notify firming that the information is accu- the manufacturer to remove the meter rate. from the licensee’s location and (i) Include the register information present it to the licensing post office to on the form when the registers can be be checked out of service within 15 read. days. (ii) Print the system report, if avail- (g) Check a nonfaulty meter out of able for the meter, and attach the re- service in accordance with the proce- port to PS Form 3601–C when the reg- dures that the Postal Service has ap- ister values cannot be read. proved for that meter when the meter (iii)Have the licensee provide any is to be removed from service for any original daily usage logs with PS Form reason. Ensure that a Postal Service 3601–C for refund calculation when the employee certifies the register read- register values cannot be read. ings and clears the descending register (4) Identify and tag the meter as when the meter is checked out of serv- faulty as soon as the manufacturer or ice, unless the Postal Service has ap- the manufacturer’s agent receives it proved other procedures for the specific from the customer. Keep the identifica- meter model. Complete the checkout tion tag and the PS Form 3601–C, which process in a timely manner and trans- was completed under paragraph (h)(3) mit the required data to the appro- of this section, with the faulty meter priate Postal Service information sys- until processing is completed and the

171

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00181 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.23 39 CFR Ch. I (7–1–06 Edition)

meter is returned to service or is processing. Ship these faulty meters scrapped. via Registered Mail service, Express (5) Secure all faulty meters and Mail service, or Priority Mail service maintain the integrity of the meter with Delivery Confirmation service. and of the information residing on the (12) If there is no evidence of tam- meter. Maintain control of the meter pering, if the meter registers cannot be until processing is completed. read, and if a summary report of the (6) Ensure that under no cir- appropriate redundant electronic reg- cumstance are registers on a faulty ister memory readouts cannot be re- meter cleared or any funds refunded or trieved: transferred until examination and (i) Develop other data to support the processing are completed, the Postal request for Postal Service approval of a Service has reviewed and analyzed the postage adjustment amount, such as a manufacturer’s report and determined manual calculation of the estimated the appropriate postage adjustment, if value of the descending register based any, and approved refund procedures on estimated highest average daily are followed. usage, or applicable system-generated (7) Maintain a record of the faulty register documentation. Include the meter and all changes in its custody, original daily usage logs maintained by state, and condition (including avail- the customer, if any, with the sup- ability of register information) from porting data. the time the meter is reported as (ii) Furnish a report explaining the faulty until processing is completed malfunction to the Postal Service under paragraphs (h)(9), (12), or (14) of within 7 days of receiving the meter. this section. Make the record available Accompany the report with a rec- to the Postal Service for its review ommendation of the postage adjust- upon request. ment amount that includes all data de- (8) Examine each meter withdrawn veloped to support the recommenda- for faulty operation as soon it is re- tion. ceived from the customer to determine (iii) Maintain control of those meters if the registers can be read and if there that have unreadable registers and is any evidence of tampering. hold them in the manufacturer’s dedi- (9) When the registers can be read or cated, secure facility described in para- a summary report of the appropriate graph (h)(10) of this section until a rep- redundant electronic register memory resentative of the Postal Service ap- readouts is available using Postal Serv- proves the postage adjustment amount ice-approved methods, and there is no or verifies the condition of the meter evidence of tampering or any problem before proceeding with the meter recovered by paragraph (h)(13) of this sec- pair or destruction. tion: (13) In some instances, even though (i) Check out the meter and withdraw the registers can be read, there is infor- it from service under paragraph (g) of mation or other indication that the this section. meter has some mechanical or elec- (ii) Submit a report to the Postal trical malfunction that affects the ac- Service by the 15th of each month list- curacy of the registers or the accuracy ing all faulty meters with readable dis- of the value printed. Handle such me- plays and no other problems received ters under paragraph (h)(12) of this sec- in the prior month, identifying the tion. meter and including an explanation of (14) If there is evidence or suspicion the meter malfunction. of tampering: (10) Maintain a dedicated, secure fa- (i) Ensure that the meter is handled cility, approved by the Postal Service, in a secure manner and maintained in for handling faulty meters that cannot its original state until the Postal Serv- be handled under paragraph (h)(9) of ice or its agent can be present during this section. the examination. (11) Ship faulty meters not handled (ii) After examination, if approved by under paragraph (h)(9) of this section the Postal Service or its agent, process directly to the secure facility described the meter under paragraph (h)(12) of in paragraph (h)(10) of this section for this section.

172

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00182 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.23

(15) Issue the refund of any postage must be destroyed 3 years after the value said to remain in a faulty meter, meter is scrapped. after Postal Service approval of the (l) Cancel a lease agreement with any amount of the refund, when the Postal lessee whose meter license is revoked Service requires it. Request reimburse- by the Postal Service, remove the ment from the Postal Service for these meter within 15 calendar days, and refunds by periodically submitting a have the meter checked out of service. reimbursement request letter to the (m) Promptly remove from service Postal Service. Accompany the letter any meter that the Postal Service indi- with listings and support documenta- cates should be removed from service. tion for each refund and indicate the When a meter license is canceled, all cause of failure for each incident. meters in use by the licensee must be (i) Report promptly the loss or theft removed from service. of any meter or the recovery of any (n) Keep a permanent record by serial lost or stolen meter. The manufacturer number of all meter keys issued to must provide notification by the Postal postmasters, as well as those sections Service with completing a standardized of the manufacturer’s establishment in lost and stolen meter incident report which their use of the keys is essential, notifying within 30 calendar days of preferably in the form of signed receipt the manufacturer’s determination of a cards. The record must include the meter loss, theft, or recovery. The date, location, and details of any loss, manufacturer must complete all pre- theft, or recovery of such keys. liminary location activities specified (o) Examine each meter withdrawn in § 501.26 before submitting this report from service for failure to record its to the Postal Service. operations correctly and accurately, (j) Provide the designated Postal and report to the Postal Service the Service Information Systems Service mechanical condition or fault that Center (ISSC) with a compatible com- caused the failure. puter magnetic tape, computer disk- (p) Provide monthly the designated ette, or electronic transmission, listing ISSC with a compatible computer tape all licensee meters in service, at the of lost or stolen meters. The file is due close of business each postal quarter. on the first of each month (for the pre- Include in each file record the meter ceding month’s activity). serial number, model number, the (q) Take reasonable precautions in user’s name and address, the date that the transportation and storage of me- the meter was placed in service, and ters to prevent use by unauthorized in- the ZIP Code or finance number of the dividuals. Manufacturers must ship all licensing post office. Manufacturers meters by Postal Service registered are responsible for reconciling dif- mail unless given written permission ferences and keeping accurate records. by the Postal Service to use another This reporting includes reconciliation carrier. The manufacturer must dem- of differences with licensing post of- onstrate that the alternative delivery fices by the manufacturer’s branches or carrier employs security procedures dealers, which results from meters that equivalent to those for registered mail. are not in Postal Service or manufac- (r) Affix to all meters a cautionary turer records. label providing the meter user with (k) Keep at manufacturer’s head- basic reminders on leasing and meter quarters a complete record by serial movement. number of all meters manufactured, (1) The cautionary label must be showing all movements of each from placed on all meters in a conspicuous the time that the meter is produced and highly visible location. ‘‘PROP- until it is scrapped, and the reading of ERTY OF [NAME OF MANUFAC- the ascending register each time the TURER]’’ as well as the manufactur- meter is checked into or out of service er’s toll-free number must be empha- through a post office. These records sized by capitalized bold type and pref- must be available for inspection by erably printed in red. The minimum Postal Service officials at any time width of the label should be 3.25 inches, during business hours. These records and the minimum height should be 1.75

173

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00183 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.23 39 CFR Ch. I (7–1–06 Edition)

inches. The label should read as fol- the customer awaits delivery of a new lows: meter. The following procedures must be followed to implement controls over RENTED POSTAGE METER—NOT FOR SALE loaner meters: (1) A loaner meter prints valid indi- PROPERTY OF [NAME OF cia and may be used to apply postage MANUFACTURER] to a mailpiece. Only electronic, re- (800) ###-#### mote-set meters may be used as loaner Use of this meter is permissible only under meters. The city/state designation in U.S. Postal Service authorization. Call the loaner meter indicia must show the [Name of Manufacturer] at (800) ###- #### to location where the user’s mail will be relocate/return this meter. deposited. WARNING! METER TAMPERING IS A (2) A customer may have possession FEDERAL OFFENSE. IF YOU SUSPECT METER TAMPERING, of a loaner meter for a maximum of CALL POSTAL INSPECTORS AT 1–800–372– five consecutive business days. When 8347 the customer chooses to continue the REWARD UP TO $50,000 for information use of a postage meter, the loaner leading to the conviction of any person who meter must be retrieved and a new misuses postage meters resulting in the meter must be installed under the cus- Postal Service not receiving correct postage payments. tomer’s license. (3) The manufacturer’s dealer or (2) Exceptions to the formatting of branch representative (‘‘representa- required labeling are determined on a tive’’) must have a USPS-issued meter case-by-case basis. Any deviation from user license to place a loaner meter. A standardized meter labeling require- single license per USPS district can be ments must be approved in writing by the Postal Service. used to issue loaner meters to cus- (s) A demonstration meter is typi- tomers in any of the different Post Of- cally used to acquaint a potential user fice service areas within that district. with the features of a meter as part of (4) Loaner meters must be reported the sales effort. The following proce- electronically to the USPS meter dures must be followed to implement tracking system when activated. A controls over demonstration meters: Form 3601–C, Postage Meter Activity (1) A demonstration meter may print Report, must be initiated to activate a only specimen indicia and must not be loaner meter under the representa- used to meter live mail. tive’s meter license. The licensee and (2) A demonstration meter must be meter location information on the recorded as such on internal manufac- form will show the representative rath- turer inventory records and must be er than the temporary user. However, tracked by model number, serial num- loaner meters may only be placed with ber, and physical location. If the me- customers who have been issued a ter’s status as a demonstration meter USPS meter license. changes, the meter must be adminis- (5) Representatives must record and tered according to the procedures that verify the accuracy of the ascending apply to its new status. and descending register readings when (3) A demonstration meter may be a loaner meter is placed with the cus- used only for demonstrations by a tomer. Any discrepancies detected dur- manufacturer’s dealer or branch rep- ing the verification process must be re- resentative and must remain under the dealer’s or representative’s direct con- ported immediately to the meter man- trol. A demonstration meter may not ufacturer, who will then notify Postage be left in the possession of the poten- Technology Management. tial customer under any circumstance. (6) The representative is responsible (t) A postage meter loaned to a cus- for resetting the loaner meter with tomer for temporary use (a ‘‘loaner postage and must arrange for reim- meter’’) is typically used to acquaint a bursement directly with the customer. potential user with the features of a (7) The representative maintains full meter as part of the sales effort, or responsibility for the loaner meter. As serves as a temporary placement while both a manufacturer’s representative

174

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00184 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.24

and a meter licensee, the representa- revenue losses (net of any amount col- tive is subject to the provision of Do- lected by the Postal Service from the mestic Mail Manual part P030 and Code licensee or meter user) with interest of Federal Regulations part 501. As a li- per occurrence measured from the date censee, the representative assumes all on which the cost and/or loss occurred, licensee responsibilities under USPS as determined by the Postal Service. meter regulations and must ensure Sanctions shall be based on the costs that loaner meters are available for ex- and revenue losses that result from the amination by the Postal Service on de- manufacturer’s failure to comply with mand and are examined in accordance these requirements. with Postal Service policy. Any losses (c) The Postal Service may impose an incurred by the Postal Service as a re- administrative sanction under this sec- sult of fraudulent use of the loaner tion by issuing a written notice to the meter by the customer are the respon- manufacturer setting forth the facts sibility of the meter licensee, the cus- and reasons on which the determina- tomer, and the manufacturer. tion to impose the sanction is based. (8) When the customer returns the The Postal Service shall determine all meter, the dealer or branch representa- costs and losses. The notice shall ad- tive must record and verify the accu- vise the manufacturer of the date that racy of the ascending and descending the action shall take effect if a written register readings and inspect the defense is not presented within 30 cal- meter. Any discrepancies or indication of tampering or fraudulent use must be endar days of receipt of the notice. reported immediately to the meter (d) The manufacturer may present to manufacturer, who will then notify the Postal Service a written defense to Postage Technology Management. In the proposed action within 30 calendar such circumstance, the meter must not days of receipt of the notice. The de- be used and must be returned to the fense must include all supporting evi- manufacturer’s QAR department via dence and state with specificity the Registered Mail. reasons for which the sanction should (9) Loaner meters must be reported not be imposed. electronically to the USPS meter (e) After receipt and consideration of tracking system when withdrawn from the written defense, the Postal Service service. The dealer or branch rep- shall advise the manufacturer of the resentative must prepare Form 3601–C, decision and the facts and reasons for Postage Meter Activity Report, for it. The decision shall be effective on re- each loaner meter withdrawn. ceipt unless it provides otherwise. [60 FR 30726, June 9, 1995, as amended at 66 (f) The manufacturer may submit a FR 20745, Apr. 25, 2001. Redesignated at 66 FR written appeal of the decision within 30 55097, Nov. 1, 2001, and amended at 67 FR calendar days of receiving the decision, 69138, Nov. 15, 2002; 69 FR 55506, Sept. 15, 2004; addressed to the manager of Retail and 70 FR 705, Jan. 5, 2005] Customer Service, Postal Service Headquarters. The appeal must include § 501.24 Administrative sanction. all supporting evidence and state with (a) Meter for purposes of this section specificity the reasons that the manu- means any postage meter manufac- facturer believes that the administra- tured by an authorized postage meter tive sanction was erroneously imposed. manufacturer under § 501.1 that is not The submission of an appeal stays the owned or leased by the Postal Service. effectiveness of the sanction. (b) An authorized manufacturer that, (g) The imposition of an administra- without just cause, fails to conduct or tive sanction under this section does perform adequately any of the controls not preclude any other criminal or in § 501.22, to follow standardized lost civil statutory, common law, or admin- and stolen meter incident reporting in istrative remedy that is available by § 501.26, or to conduct any of the inspec- law to the Postal Service, the United tions required by § 501.25 in a timely States, or any other person or concern. fashion is subject to an administrative sanction based on the investigative and [60 FR 30726, June 9, 1995. Redesignated at 66 administrative costs and documented FR 55097, Nov. 1, 2001]

175

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00185 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.25 39 CFR Ch. I (7–1–06 Edition)

§ 501.25 Meter replacement. § 501.26 Inspection of meters in use. The manufacturer must keep its (a) The manufacturer must have all postage meters in proper operating its meters in service with licensees in- condition for licensees by replacing spected according to the following them when necessary or desirable to schedule. A high-volume mailer is de- prevent mechanical breakdown. fined as one who has annual metered [60 FR 30726, June 9, 1995. Redesignated at 66 postage in excess of $12,000. FR 55097, Nov. 1, 2001]

(b) Manufacturer inspections must be ly pulled up to the lock cover or post. sufficiently thorough to determine Ensure that the locking-seal identifica- that each meter is clean, in proper option number matches the seal number erating condition, and recording its op- recorded at the time of the last meter erations correctly and accurately. The resetting. manufacturers must: (6) Check to determine that the lock (1) Compare the meter serial number cover properly protects the lock and on the meter with the serial number on has not been loosened, bent, or tam- the source document (manufacturer’s pered with. records). (7) Complete the following, as appli- (2) Record the ascending and descend- cable to the specific meter model: ing register readings and calculate the (i) Check to ensure that the meter total readings. Record the locking-seal fits properly on the meter base. identification number. (ii) Check all breakoff screws to de- (3) Obtain the licensee’s PS Form termine that no screw is missing or 3602–A, Record of Meter Register Read- loose or shows signs of removal. ings, or equivalent, and a copy of the most recent PS Form 3603, Receipt for (iii) Operate the dater and meter ad Postage Meter Setting, and verify the selector dials to test the dater, post- control total after the last setting with mark die, and meter ad plate. the control total calculated during the (iv) Check the alignment and condi- proof-of-register procedure. tion of engraving on the denomination (4) Verify the accuracy of postage se- printing wheels, when visible. lection, denomination indicator wheels (v) Check the descending register or electronic display, and denomina- door for damage, pry marks, or scar- tion printing wheels following the ring. Make certain that the door can- proof of registers by printing a .00 not be opened without unlocking it. meter stamp and then comparing the (vi) Examine the meter drum for register readings with the recorded reg- damage, pry marks, or scarring. ister readings. (vii) Examine the meter cover for pry (5) Check to determine that the post marks or scarring near the post office office locking seal is in place and prop- lock or breakoff screws, any drilled erly sealed and that the seal wire is holes, or any signs of attempted entry properly wound and tightly gripped by into the internal mechanism of the the seal-locking mechanism, and tight- meter.

176

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00186 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 ER09jn95.008 United States Postal Service § 501.27

(viii) Examine the meter stamp die (8) Mail a certified letter with return for excessive wear, damage, breakage, receipt to the licensee at the last or scars from prying, and the postage known address with the notation die retaining screws for signs of wear ‘‘Forwarding and Address Correction to ensure that none is missing or shows Requested.’’ signs of removal. (9) If new address information is ob- (ix) Check the register, counter, and tained during these steps, any sched- display windows for breakage or cloudi- uled meter inspections must be com- ness. pleted promptly. (x) Obtain the signature of the li- (b) If a meter is reported to be lost or censee to show that a meter inspection stolen by the licensee, the manufac- has taken place. turer must, at a minimum, complete (8) Report immediately to the licens- the following actions: ee’s licensing postmaster any irregu- (1) Ensure that the meter licensee larity in the operation of the meter or has filed a police report and that copies sign of improper use, and take steps to have been provided to the appropriate replace or remove the meter. Inspection Service Contraband Postage [60 FR 30726, June 9, 1995. Redesignated at 66 Identification Program (CPIP) spe- FR 55097, Nov. 1, 2001] cialist. (2) Withhold issuance of a replace- § 501.27 Meters not located. ment meter until the missing meter Upon learning that one or more of its has been properly reported to the po- postage meters in service cannot be lo- lice and to the appropriate Inspection cated, the manufacturer must under- Service CPIP specialist. take reasonable efforts to locate the (c) If the manufacturer later learns meters by following a series of Postal that the meter has been located and/or Service-specified actions designed to recovered, the manufacturer must up- locate the meters. If these efforts are date lost and stolen meter activity unsuccessful and a meter is determined records, inspect the meter promptly, to be lost or stolen, the manufacturer initiate a postage adjustment or trans- must notify the Postal Service within fer if appropriate, and check the meter 30 days by submitting a Lost and Sto- out of service if a replacement meter len Meter Incident Report. has been supplied to the meter li- (a) If a licensee cannot be located, censee. the manufacturer must, at a minimum, (d) If a meter reported to the Postal complete the following actions: Service as lost or stolen is later lo- (1) Call the licensee’s last known cated, the manufacturer is responsible telephone number. for submitting a new Lost and Stolen (2) Call directory assistance for the Meter Incident Report that references licensee’s new telephone number. the initial report and outlines the de- (3) Contact the licensee’s local post tails of how the meter was recovered. office for current change of address in- This report must be submitted to the formation. Postal Service within 30 days of recov- (4) Contact the local post office for a ery of the meter. The meter manufac- copy of the applicable PS Form 3610 turer is also responsible for purging and PS Form 3601–C. Verify the loca- lost and stolen meter reports that are tion of the meter or licensee currently provided on a periodic basis to the maintained in those meter records. Postal Service ISSC for those meters (5) Contact the rental agency respon- that have been recovered. sible for the property where the licensee was located, if applicable. (e) Any authorized manufacturer that fails to comply with standardized (6) Visit the licensee’s last known address to see whether the building su- lost and stolen reporting procedures perintendent or a neighbor knows the and instructions is subject to an ad- meter licensee’s new address. ministrative sanction under § 501.23, as (7) Check the centralized meter in- determined by the Postal Service. spection file for change of address no- [60 FR 30726, June 9, 1995. Redesignated at 66 tation. FR 55097, Nov. 1, 2001]

177

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00187 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.28 39 CFR Ch. I (7–1–06 Edition)

§ 501.28 Protection and control of in- with paragraph (b)(4) of this section. ternal and security components. The details of this deposit requirement Any physical or electronic access to are covered within the Acknowledg- the internal components of a meter, as ment of Deposit Requirement docu- well as any access to software or secu- ment. By signing this document, the li- rity parameters, must be conducted censee agrees to transfer funds to the within an approved factory or meter Postal Service through a lockbox bank, repair facility under the manufactur- as specified by the MRC, for the pur- er’s direct control and active super- pose of prepayment of postage. The vision. The Postal Service must have MRC representative must provide all checked a meter out of service before new CMRS licensees with this docu- any component, software, or security ment when a new account is estab- parameter is accessed or modified in lished. The document must be com- any way, or internal repairs are under- pleted and signed by the licensee and taken. This does not apply to Postal sent to the licensing post office by the Service-approved user, field, or Postal MRC. Service access to a specific internal (3) The MRC is required to incor- component or software. To prevent un- porate the following language into its authorized use, the manufacturer or meter rental agreements: any third party acting on its behalf llllllllllllllllllllllll must keep secure any equipment or other component that can be used to ACKNOWLEDGMENT OF DEPOSIT REQUIREMENT open or access the internal, electronic, By signing this meter rental agreement, you or secure components of a meter. represent that you have read the Acknowl- [68 FR 2699, Jan. 21, 2003] edgment of Deposit Requirement and are familiar with its terms. You agree that, § 501.29 Computerized remote postage upon execution of this Agreement with meter resetting. [the MRC], you will also be bound by all terms and conditions of the Acknowledg- (a) Description. The Computerized Re- ment of Deposit Requirement, as it may be mote Postage Meter Resetting System amended from time to time. (CMRS) permits postal licensees using llllllllllllllllllllllll specially designed postage meters to reset their meters at their places of (4) The licensee is permitted to make business via telephonic communica- deposits in one of three ways: check, tions. Authorized meter manufacturers electronic funds transfer (or wire that offer CMRS services are known as transfer), or automated clearinghouse meter resetting companies (MRCs). To (ACH) transfer. These deposits are to reset a meter, the licensee telephones be processed by the lockbox bank. The the MRC and provides identifying data. lockbox bank must wire daily all avail- Before proceeding with the setting able balances to the Postal Service. transaction, the MRC must verify the (5) If the MRC chooses to offer ad- data and ascertain from its own files vancement of funds to licensees, the whether the licensee has sufficient MRC is required to maintain a deposit funds on deposit with the Postal Serv- with the Postal Service equal to at ice. If the funds are available or the least 1 day’s average funds advanced. manufacturer opts to provide a funds The total amount of funds advanced to advance in accordance with paragraph licensees on any given day may not ex- (b)(5) of this section, the MRC may ceed the amount the manufacturer has complete the setting transaction. on deposit with the Postal Service. The (b) Deposits with the Postal Service. (1) MRC is not authorized to perform set- Deposits in the Postal Service Fund at tings in excess of the licensee’s balance Treasury are backed in full faith and in any other circumstance. The Postal credit by the U. S. Treasury. Service shall not be liable for any pay- (2) A CMRS licensee is required to ment made by the MRC on behalf of a have funds available on deposit with licensee that is not reimbursed by the the Postal Service before resetting a licensee because the MRC is solely re- meter or the manufacturer may opt to sponsible for the collection of ad- provide a funds advance in accordance vances.

178

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00188 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 501.29

(c) Revenue protection. The Postal ting requested before proceeding with Service shall conduct periodic assess- the setting transaction (unless the ments of the revenue protection safe- manufacturer opts to provide the li- guards of each MRC system and shall censee a funds advance). Immediately reserve the right to revoke an MRC’s following each such resetting, the MRC authorization if the CMRS system does must charge the licensee’s account for not meet all requirements set forth by the amount of the postage reset. After the Postal Service. In addition, the the completion of each transaction, the Postal Service shall reserve the right manufacturer must promptly provide to suspend the operation of the MRC the licensee with a statement docu- for any serious operational deficiency menting the transaction and the bal- that is likely to result in the loss of ance remaining in the licensee’s ac- funds to the Postal Service as provided count. As an alternative, the manufac- in § 501.12. turer may provide a statement month- (d) Equipment. The meters used in the ly that documents all transactions for computerized resetting system must the period and that shows the balance conform to the specifications in § 501.6. in the licensee’s account after each They must be tested under § 501.7 and transaction. conform to the safeguards, distribu- (4) Each banking day, the lockbox tion, and maintenance requirements of bank is to transfer, by 10 a.m. local §§ 501.15 through 501.23 to protect the time, amounts payable to the Postal Postal Service against loss of revenue Service from the transactions during from fraud, manipulation, the previous day to a designated Fed- misoperation, or breakdown. eral Reserve Bank. The MRC must (e) Financial operation. (1) Before the maintain licensee service activity data Postal Service’s selection of a lockbox to accept and respond to inquiries from provider, the MRC must establish a licensees concerning the status of their lockbox account in the name of the payments. The lockbox bank must pro- Postal Service at a bank or banks ap- vide the MRCs with a nationwide, toll- proved by the Postal Service to handle free telephone number for licensee the deposits of licensees. The MRC service. The Postal Service lockbox must make arrangements with such bank must assign a dedicated senior banks under which the banks are to in- level licensee service representative to form the manufacturer of the amounts handle all inquiries and investigations. of licensee funds received each banking (5) The Postal Service requires that day. the MRCs publicize to all CMRS licens- (2) The Postal Service lockbox bank ees the following payment options processes the CMRS deposits daily, (listed in order of preference): consolidates the data, and performs a (i) Automated clearinghouse (ACH) direct file transmission to each MRC. debits/credits. The daily deposit processing cutoff (ii) Electronic funds transfers (wire times and the automated file trans- transfers). mission times are coordinated inde- (iii) Checks. pendently with each of the MRCs. Man- (6) Licensee check deposits must be ufacturers must ensure that their data mailed to a predetermined post office center computers are programmed to box address specified by the lockbox reflect each licensee deposit and track bank and accompanied by a preencoded all licensee activity. deposit ticket. The Postal Service pro- (3) The MRC must require each li- vides CMRS customers with deposit censee that requests meter resetting to tickets for inclusion with check pay- provide the meter serial number, the ments. At the time a new account is licensee account number, and the me- opened, a licensee not possessing a ter’s ascending and descending register preencoded deposit slip must present readings. The manufacturer must the initial payment to the MRC rep- verify that the information provided to resentative who in turn assigns the li- the licensee is consistent with its censee a new account number and records. The MRC must also verify that manually prepares a deposit ticket to there are sufficient funds in the licens- be mailed to the lockbox bank for proc- ee’s account to cover the postage set- essing.

179

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00189 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 501.30 39 CFR Ch. I (7–1–06 Edition)

(7) If a licensee prefers to use a pay- payment in full for the check returned. ment form other than a check, the li- The lockbox bank provides collection censee must contact the MRC rep- services for returned checks on behalf resentative for instructions, and the of the Postal Service. The Postal Serv- MRC must provide the licensee with ice lockbox bank notifies the MRC the appropriate information regarding once this item is paid. The MRC then the use of ACH debits/credits and elec- releases the account for activity. tronic funds transfers (wire transfers). (f) Refunds. The Postal Service issues (8) Returned checks and ACH debits a refund to a licensee for any unused are the responsibility of the Postal postage in a meter. Refunds of licensee Service. In the case of a returned balances maintained by the Postal check, the Postal Service lockbox Service in the Postal Service fund are bank, after an automatic second pre- intended to be made directly to the li- sentment, advises the MRC of the ac- censee by the lockbox bank within 48 count in question so that the MRC data hours after receipt of a licensee’s re- file can be locked. The MRC must lock quest. the licensee account immediately so (g) Reports. The manufacturer must that the licensee is unable to reset the provide reports according to the fol- meter until the Postal Service receives lowing schedule:

Report description Content Frequency Medium

MRC CMRS Daily Activity Report Summary of Business Activity .... Daily ...... Paper (facsimile). Revenue Allocation Report ...... ZIP Code of Licensing Post Of- Postal Accounting Period ...... Electronic. fice; Amount of Resettings. Postage Refunds Report ...... Customer ID; ZIP Code; Amount Daily (by request only) ...... Paper. of Refund. Funds Advanced Report ...... Customer ID; ZIP Code; Amount Daily (by request only) ...... Paper. of Funds Advanced.

(h) Inspection of records and facilities. tail channels, and for the following The manufacturer must make its fa- purposes: cilities that handle the operation of (1) Issuance (including re-licensing, the computerized resetting system and renewal, transfer, revocation or denial, all records about the operation of the as applicable) of a meter license to a system available for inspection by rep- postal patron that uses a postage resentatives of the Postal Service at meter, and communications with re- all reasonable times. spect to the status of such license. (2) Disclosure to a meter manufac- [60 FR 30726, June 9, 1995. Redesignated at 66 turer of the identity of any meter re- FR 55097, Nov. 1, 2001] quired to be removed from service by that meter manufacturer, and any re- § 501.30 Licensee information. lated licensee data, as the result of rev- (a) As stated in § 501.22(b) manufac- ocation of a meter license, questioned turers must transmit electronically, accurate registration of that meter, or copies of completed PS Forms 3601–A, de-certification by the Postal Service Application for a License to Lease and of any particular class or model of Use Postage meters, to the designated postage meter. Postal Service central data processing (3) Use for the purpose of tracking facility. the movement of meters between a meter manufacturer and its customers (b) The Postal Service may use appli- and communications to a meter manu- cant information in the administration facturer (but not to any third party of postage meter and metered mail ac- other than the applicant/licensee) con- tivities, and to communicate with cus- cerning such movement. The term tomers who may no longer be visiting a ‘‘meter manufacturer’’ includes a traditional USPS retail outlet. The meter manufacturer’s dealers and Postal Service will also use applicant agents. information to communicate with (4) To transmit general information USPS customers through any new re- to all meter customers concerning rate

180

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00190 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 551.2

and rate category changes imple- puter meter database with information mented or proposed for implementa- contained in the computer files of the tion by the United States Postal Serv- Postal Service, including but not lim- ice. ited to computerized data that reside (5) To advertise Postal Service serv- in Postal Service meter management ices relating to the acceptance, proc- databases. essing and delivery of, or postage pay- (13) Subject to the conditions stated ment for, metered mail. herein, to communicate in oral or writ- (6) To allow the Postal Service to ten form with any or all applicants any communicate with USPS customers on information that the Postal Service products, services and other informa- views as necessary to enable the Postal tion otherwise available to USPS cus- Service to carry out its duties and pur- tomers through traditional retail out- poses under part 501. lets. [63 FR 53812, Oct. 7, 1998. Redesignated at 66 (7) Any internal use by Postal Serv- FR 55097, Nov. 1, 2001] ice personnel, including identification and monitoring activities relating to PART 551—SEMIPOSTAL STAMP postage meters, provided that such use PROGRAM does not result in the disclosure of applicant information to any third party Sec. or will not enable any third party to 551.1 Semipostal Stamp Program. use applicant information for its own 551.2 Semipostal stamps. purposes; except that the applicant in- 551.3 Procedure for selection of causes and formation may be disclosed to other recipient executive agencies. governmental agencies for law enforce- 551.4 Submission requirements and selec- ment purposes as provided by law. tion criteria. (8) Identification of authorized meter 551.5 Frequency and other limitations. 551.6 Pricing. manufacturers or announcements of 551.7 Calculation of funds for recipient exec- de-authorization of an authorized utive agencies. meter manufacturer, or provision of 551.8 Cost offset policy. currently available public information, AUTHORITY: 39 U.S.C. 101, 201, 203, 401, 403, where an authorized meter manufac- 404, 410, 414, 416. turer is identified. (9) To promote and encourage the use SOURCE: 66 FR 31826, June 12, 2001, unless otherwise noted. of postage meters, including remotely set postage meters, as a form of post- § 551.1 Semipostal Stamp Program. age payment, provided that the same The Semipostal Stamp Program is information is provided to all meter established under the Semipostal Au- customers, and no particular meter thorization Act, Public Law 106–253, 114 manufacturer will be recommended by Stat. 634 (2000), as amended by Public the Postal Service. Law 107–67, section 652, 115 Stat. 514 (10) To contact meter customers in (2001). The Office of Stamp Services has cases of revenue fraud or revenue secu- primary responsibility for admin- rity except that any meter customer istering the Semipostal Stamp Pro- suspected of fraud shall not be identi- gram. The Office of Accounting, Fi- fied to other meter customers. nance, Controller has primary respon- (11) Disclosure to a meter manufac- sibility for the financial aspects of the turer of applicant information per- Semipostal Stamp Program. taining to that meter manufacturer’s customers that the Postal Service [67 FR 5215, Feb. 5, 2002] views as necessary to enable the Postal Service to carry out its duties and pur- § 551.2 Semipostal stamps. poses. Semipostal stamps are stamps that (12) To transmit to a manufacturer are sold for a price that exceeds the all applicant and postage meter infor- postage value of the stamp. The dif- mation pertaining to that manufactur- ference between the price and postage er’s customers and postage meters that value of semipostal stamps, also known may be necessary to permit such meter as the differential, less an offset for manufacturer to synchronize its com- reasonable costs, as determined by the

181

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00191 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 551.3 39 CFR Ch. I (7–1–06 Edition)

Postal Service, consists of a contributions on a cause and eligible recipient tion to fund causes determined by the executive agency(ies) to the post- Postal Service to be in the national master general. If no eligible proposals public interest and appropriate. Funds are recommended, the Postal Service are to be transferred to selected recipi- will solicit additional proposals ent executive agencies, as defined through publication of a notice in the under 5 U.S.C. 105. The office of Stamp FEDERAL REGISTER and through other Services determines the print quan- means as it determines in its discre- tities of semipostal stamps. The use of tion. semipostal stamps shall be voluntary (e) Meetings of the Citizens’ Stamp on the part of postal patrons. Advisory Committee are closed, and deliberations of the Citizens’ Stamp § 551.3 Procedure for selection of Advisory Committee are predecisional causes and recipient executive in nature. agencies. (f) The postmaster general will act on The Postal Service is authorized to the recommendations of the Citizens’ select causes and recipient executive Stamp Advisory Committee. The deci- agencies to receive funds raised sion of the postmaster general shall through the sale of semipostal stamps. consist of the final agency decision. The procedure for selection of causes (g) The office of Stamp Services will and recipient executive agencies is as notify the executive agency(ies) in follows: writing of a decision designating the (a) In advance of the issuance of a agency(ies) as recipients of funds from semipostal stamp, the office of Stamp a semipostal stamp. Services will publish a request for pro- (h)(1) A proposal submission may des- posals in the FEDERAL REGISTER invit- ignate one or two recipient executive ing interested persons to submit pro- agencies to receive funds, but if more posals for a cause and recipient execu- than one executive agency is proposed, tive agencies for a future semipostal the proposal must specify the percent- stamp. The notice will specify the be- age shares of differential revenue, net ginning and ending dates of the period of the Postal Service’s reasonable during which proposals may be sub- costs, to be given to each agency. If mitted. The notice will also specify the percentage shares are not specified, it approximate period in which the is presumed that the proposal intends semipostal stamp for which proposals that the funds be split evenly between are solicited is to be sold. The office of the agencies. If more than two recipi- Stamp Services may publicize the re- ent executive agencies are proposed to quest for proposals through other receive funds and the proposal is se- means, as it determines in its discre- lected, the proposal is treated as pre- tion. scribed by paragraph (h)(3) of this sec- (b) Proposals will be received by the tion. office of Stamp Services, which will re- (2) If more than one proposal is sub- view each proposal under § 551.4. mitted for the same cause, and the pro- (c) Those proposals that the office of posals would have different executive Stamp Services determines satisfy the agencies receiving funds, the funds requirements of § 551.4 will be for- would be evenly divided among the ex- warded for consideration by the Citi- ecutive agencies, with no more than zens’ Stamp Advisory Committee, two agencies being designated to re- which is described in Administrative ceive funds, as determined by the vice Support Manual (ASM) section 644.5. president and consumer advocate. For availability of ASM 644.5, contact (3) Within 10 days of receipt of a no- the Office of Stamp Services (202) 268– tice indicating that it has been se- 2319. lected to receive funds, a selected agen- (d) The Citizens’ Stamp Advisory cy could request a proportionately Committee will review eligible pro- larger share if it can demonstrate that posals forwarded by the office of Stamp its share of total funding of the cause Services. Based on the proposals sub- from other sources (excluding any addi- mitted, the Citizens’ Stamp Advisory tional funds available as a result of the Committee will make recommenda- semipostal stamp) exceeds that of the

182

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00192 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 551.4

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 a cause and a recipient executive agen- thorization Act, if it is selected. The cy(ies), the Citizens’ Stamp Advisory letter must be signed by a duly author- Committee will recommend to the ized representative of the agency. postmaster general a design (i.e., art- (b) Proposal submissions become the work) for the semipostal stamp. The property of the Postal Service and are postmaster general will make a final not returned to interested persons who determination on the design to be fea- submit them. Interested persons who tured. submit proposals are not entitled to any remuneration, compensation, or § 551.4 Submission requirements and any other form of payment, whether selection criteria. their proposal submissions are selected (a) Proposals on recipient executive or not, for any reason. agencies and causes must satisfy the (c) The following persons are dis- following requirements: qualified from submitting proposals: (1) Interested persons must timely (1) Any contractor of the Postal submit an original and 20 copies of the Service that may stand to benefit fi- proposal. For purposes of this section, nancially from the Semipostal Stamp interested persons include, but are not Program; or limited to, individuals, corporations, (2) Members of the Citizens’ Stamp associations, and executive agencies under 5 U.S.C. 105. Interested persons Advisory Committee and their imme- submitting proposals are also encour- diate families, and employees or con- aged to submit an Adobe Acrobat (.pdf) tractors of the Postal Service, and file saved on a 3.5 inch diskette or CD- their immediate families, who are in- ROM diskette containing the entire volved in any decision-making related contents of the submission. In extraor- to causes, recipient agencies, or art- dinary circumstances, the office of work for the Semipostal Stamp Pro- Stamp Services may, in its discretion, gram. consider a late-filed proposal. (d) Consideration for evaluation will (2) The proposal submission must be not be given to proposals that request signed by the individual or a duly au- support for the following: Anniver- thorized representative and must pro- saries; public works; people; specific vide the mailing address, phone num- organizations or associations; commer- ber, fax number (if available), and E- cial enterprises or products; cities, mail address (if available) of a des- towns, municipalities, counties, or sec- ignated point of contact. ondary schools; hospitals, libraries, or (3) The submission must describe the similar institutions; religious institu- cause and the purposes for which the tions; causes that do not further funds would be spent. human welfare; or causes determined (4) The submission must demonstrate by the Postal Service or the Citizens’ that the cause to be funded has broad Stamp Advisory Committee to be in- national appeal, and that the cause is in the national public interest and fur- consistent with the spirit, intent, or thers human welfare. Respondents are history of the Semipostal Authoriza- encouraged to submit supporting docu- tion Act. mentation demonstrating that funding (e) Artwork and stamp designs should the cause would benefit the national not be submitted with proposals. public interest.

183

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00193 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 551.5 39 CFR Ch. I (7–1–06 Edition)

§ 551.5 Frequency and other limita- ounce rate of postage will be consid- tions. ered the rate of postage that would (a) The Postal Service is authorized otherwise regularly apply. to issue semipostal stamps for a 10- (b) The prices of semipostal stamps year period beginning on the date on are determined by the Governors of the which semipostal stamps are first sold United States Postal Service in accord- to the public under 39 U.S.C. 416. The ance with the requirements of 39 U.S.C. 10-year period will commence after the 416. 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 commencement of the 10-year period. Semipostal Authorization Act, as spec- (b) The Postal Service will offer only ified in § 551.8. These costs are offset one semipostal stamp for sale at any against the revenue received through given time during the 10-year period. sale of each semipostal stamp in excess (c) The sales period for any given of the First-Class Mail single-piece semipostal stamp is limited to no more first-ounce rate in effect at the time of than 2 years, as determined by the of- purchase. fice of Stamp Services. (b) Any reasonable costs offset by the (d) Prior to or after the issuance of a Postal Service shall be retained by it, given semipostal stamp, the Postal along with revenue from the sale of the Service reserves the right to withdraw semipostal stamps, as recorded by sales the semipostal stamp from sale, or to units through the use of a specially reduce the sales period, if, inter alia: designated account. (1) Its sales or revenue statistics are (c) The Postal Service is to pay des- lower than expected, ignated recipient executive agency(ies) (2) The sales or revenue projections the remainder of the differential rev- are lower than previously expected, or enue less an amount to recover the rea- (3) The cause or recipient executive sonable costs of the Postal Service, as agency does not further, or comply determined under § 551.8. with, the statutory purposes or re- (d) The amounts for recipient execu- quirements of the Semipostal Author- tive agencies are transferred in a man- ization Act. The decision to withdraw a ner and frequency determined by mu- semipostal stamp is to be made by the tual agreement, consistent with the re- postmaster general, after review of quirements of 39 U.S.C. 416. supporting documentation prepared by the office of Stamp Services. § 551.8 Cost offset policy. [66 FR 31826, June 12, 2001, as amended at 67 (a) Postal Service policy is to recover FR 5215, Feb. 5, 2002] from the differential revenue for each semipostal stamp those costs that are § 551.6 Pricing. determined to be attributable to the (a) The Semipostal Authorization semipostal stamp and that would not Act, as amended by Public Law 107–67, normally be incurred for stamps having section 652, 115 Stat. 514 (2001), pre- similar sales; physical characteristics; scribes that the price of a semipostal and marketing, promotional, and pub- stamp is the rate of postage that would lic relations activities (hereinafter otherwise regularly apply, plus a dif- ‘‘comparable stamps’’). ferential of not less than 15 percent. (b) Overall responsibility for track- The price of a semipostal stamp shall ing costs associated with semipostal be an amount that is evenly divisible stamps will rest with the Office of Ac- by five. For purposes of this provision, counting, Finance, Controller. Indi- the First-Class Mail  single-piece first- vidual organizational units incurring

184

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00194 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 551.8

costs will provide supporting docu- (5) Other costs specific to the mentation to the Office of Accounting, semipostal stamp that would not nor- Finance, Controller. mally have been incurred for com- (c) For each semipostal stamp, the parable stamps; and Office of Stamp Services, in coordina- (6) Costs in paragraph (g) of this section with the Office of Accounting, Fi- tion that materially exceed those that nance, Controller, shall, based on judg- would normally have been incurred for ment and available information, iden- comparable stamps. tify the comparable stamp(s) and cre- (f) The Semipostal Stamp Program ate a profile of the typical cost charac- incorporates the following provisions teristics of the comparable stamp(s) that are intended to maximize differen- (e.g., manufacturing process, gum tial revenues available to the selected type), thereby establishing a baseline causes. These include, but are not lim- for cost comparison purposes. The de- ited to, the following: termination of comparable stamps may (1) Avoiding, to the extent prac- change during or after the sales period, ticable, promotional costs that exceed and different comparable stamp(s) may those of comparable stamps; be used for specific cost comparisons. (2) Establishing restrictions on the (d) Except as specified, all costs asso- number of concurrently issued ciated with semipostal stamps will be semipostal stamps; and tracked by the Office of Accounting, (3) Making financial and retail sys- Finance, Controller. Costs that will not tem changes in conjunction with regu- be tracked include: larly scheduled revisions. (1) Costs that the Postal Service de- (g) Other costs attributable to termines to be inconsequentially semipostals but which would normally small, which include those cost items be incurred for comparable stamps which are less than $3,000 per invoice would be recovered through the post- and are not specifically charged to a age component of the semipostal stamp semipostal finance number. price. Such costs are not recovered, un- (2) Costs for which the cost of track- less they materially exceed the costs of ing or estimation would be burdensome comparable stamps. These include, but (e.g., costs for which the cost of track- are not limited to, the following: ing exceeds the cost to be tracked); (1) Costs of stamp design (including (3) Costs attributable to mail to market research); which semipostal stamps are affixed (2) Costs of stamp production and (which are attributable to the appro- printing; priate class and/or subclass of mail); (3) Costs of stamp shipping and dis- and tribution; (4) Administrative and support costs (4) Estimated training costs for field that the Postal Service would have in- staff, except for special training associ- curred whether or not the Semipostal ated with semipostal stamps; Stamp Program had been established. (5) Costs of stamp sales (including (e) Cost items recoverable from the employee salaries and benefits); differential revenue include, but are (6) Costs associated with the with- not limited to, the following: drawal of the stamp issue from sale; (1) Packaging costs in excess of the (7) Costs associated with the destruc- cost to package comparable stamps; tion of unsold stamps; and (2) Printing costs of flyers and spe- (8) Costs associated with the incorpo- cial receipts; ration of semipostal stamp images into (3) Costs of changes to equipment; advertising for the Postal Service as an (4) Costs of developing and executing entity. marketing and promotional plans in [66 FR 31826, June 12, 2001, as amended at 67 excess of the cost for comparable FR 5216, Feb. 5, 2002; 69 FR 7689, Feb. 19, 2004; stamps; 70 FR 6765, Feb. 9, 2005]

185

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00195 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER H—PROCUREMENT SYSTEM FOR THE U.S. POSTAL SERVICE: INTELLECTUAL PROPERTY RIGHTS OTHER THAN PATENTS

PART 601—PURCHASING OF erty) and services. Solicitations issued PROPERTY AND SERVICES and contracts entered into prior to the effective date of the regulations in this Sec. part will be governed by the regula- 601.100 Purchasing policy. tions in effect at the time the contract 601.101 Effective date. was signed. 601.102 Revocation of prior purchasing regulations. § 601.104 Postal purchasing authority. 601.103 Applicability and coverage. Only the Postmaster General/CEO; 601.104 Postal purchasing authority. the Postal Service’s vice president of 601.105 Business relationships. 601.106 Declining to accept or consider pro- Supply Management; contracting offi- posals. cers with written statements of spe- 601.107 Initial disagreement resolution. cific authority; and others designated 601.108 Ombudsman disagreement resolu- in writing or listed in this part have tion. the authority to bind the Postal Serv- 601.109 Contract claims and disputes. ice with respect to entering into, modi- 601.110 Payment of claims. fying, or terminating any contract re- 601.111 Interest on claim amounts. garding the acquisition of property, 601.112 Review of adverse decisions. 601.113 Debarment, suspension, and ineligi- services, and related purchasing mat- bility. ters. The Postal Service’s vice president of Supply Management, or his or AUTHORITY: 39 U.S.C. 401, 404, 410, 411, 2008, her designee, may also delegate in 5001–5605. writing local buying authority SOURCE: 70 FR 20293, Apr. 19, 2005, unless throughout the Postal Service. otherwise noted. § 601.105 Business relationships. § 601.100 Purchasing policy. A person or organization wishing to It is the policy of the Postal Service enjoy a continuing business relation- to acquire property and services in ac- ship with the Postal Service in pur- cordance with 39 U.S.C. 410 and all chasing matters is expected to treat other applicable public laws enacted by the Postal Service in the same manner Congress. as it would other valued customers of similar size and importance. The Post- § 601.101 Effective date. al Service reserves the right to cease These regulations are effective May accepting or considering proposals 19, 2005. from a person or organization when that person or organization fails to § 601.102 Revocation of prior pur- meet reasonable business expectations chasing regulations. of high quality, prompt service, and All previous Postal Service pur- overall professionalism. chasing regulations, including the Post- al Contracting Manual, Procurement § 601.106 Declining to accept or con- Manual, the Purchasing Manual (Issues sider proposals. 1, 2 and 3), and procurement hand- (a) General. The Postal Service may books, circulars, and instructions, are decline to accept or consider proposals revoked and are superseded by the reg- from a person or organization that does ulations contained in this part, except not meet reasonable business expecta- as provided in § 601.103. tions or does not provide a high level of confidence about current or future § 601.103 Applicability and coverage. business relations. Typically, these The regulations contained in this sorts of unacceptable conduct and busi- part apply to all Postal Service acqui- ness practices will not rise to the level sition of property (except real prop- of unethical or criminal activities that

186

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00196 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 601.108

could lead to the debarment, suspen- arise pursuant to a contract under the sion, or ineligibility of a supplier. Un- Contract Disputes Act or claims con- acceptable conduct or business prac- cerning debarment, suspension, or in- tices include, but are not limited to: eligibility under § 601.113, must be (1) Marginal or dilatory contract per- lodged with the responsible contracting formance; officer for resolution within 10 days of (2) Failure to deliver on promises the date the disagreement arose. If the made in the course of dealings with the matter is not resolved within 10 days Postal Service; following the lodging of the dispute, (3) Providing false or misleading in- the disagreement may be lodged with formation as to financial condition, the Ombudsman as described in ability to perform, or other material § 601.108. Alternative dispute resolution matters, including any aspect of per- (ADR) procedures may be used, if formance on a contract; and agreed to by both parties. The Postal (4) Engaging in other questionable or Service supports and encourages the unprofessional conduct or business use of ADR as an effective way to un- practices. derstand, address, and resolve disagree- (b) Notice. If the Postal Service elects ments and conflicts. A person or orga- to decline to accept or consider pro- nization disagreeing with a Postal posals from a person or organization, Service decision and the Postal Service the vice president of Supply Manage- contracting officer must consider the ment, or his or her designee, will pro- use of ADR to resolve a particular pur- vide a written notice to the person or chasing disagreement, regardless of the organization explaining: nature of the disagreement or when it (1) The reasons for the decision; occurs during the purchasing process. (2) The effective date of the decision; ADR methods include informal nego- (3) The scope of the decision; tiation, mediation by a neutral third (4) The duration of the decision (this party, and any other agreed-upon may be limited to a specified length of method. time or may extend indefinitely); and (5) The supplier’s right to contest the § 601.108 Ombudsman disagreement decision. resolution. (c) Contesting Decisions. If a person or (a) Policy. From time to time, dis- organization believes the decision not agreements may arise between sup- to accept or consider proposals is not pliers, potential suppliers, and the merited, it may contest the matter in Postal Service regarding awards of con- accordance with the ombudsman and tracts and related matters that are not disagreement-resolution procedures resolved as set forth in § 601.107. When a contained in this part, seek to resolve disagreement under § 601.107 is not re- the matter by agreement through al- solved within ten calendar days of ternative dispute resolution, or both. when it was lodged with the con- The Postal Service may reconsider the tracting officer, then the disagreement matter and, if warranted, rescind or may be lodged with the ombudsman es- modify the decision to decline to ac- tablished in this part for final resolu- cept or consider proposals. tion. The Postal Service desires to resolve all such disagreements quickly § 601.107 Initial disagreement resolu- and inexpensively in keeping with the tion. regulations in this part, 39 U.S.C. 410, It is the policy of the Postal Service and all other applicable public laws en- and in the interest of suppliers to re- acted by Congress. In resolving dis- solve potential disagreements by mu- agreements, non-Postal Service pro- tual agreement at the contracting offi- curement rules or regulations will not cer or appropriate management level. govern. Therefore, all disputes, protests, (b) Scope and Applicability. In order to claims, disagreements, or demands of expeditiously resolve disagreements whatsoever nature (hereinafter ‘‘dis- that are not resolved at the con- agreements’’) against the Postal Serv- tracting officer or appropriate manage- ice arising in connection with the pur- ment level, to reduce litigation ex- chasing process, except claims that penses, inconvenience, and other costs

187

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00197 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 601.108 39 CFR Ch. I (7–1–06 Edition)

for all parties, and to facilitate suc- (f) The ombudsman will promptly cessful business relationships with provide a copy of a disagreement to the Postal Service suppliers, the supplier contracting officer, who will promptly community, and other persons, the fol- notify other interested persons (i.e., ac- lowing procedure is established as the tual or prospective offerors whose di- sole and exclusive means to resolve dis- rect economic interests would be af- agreements arising in connection with fected by the award of, or failure to awards of contracts for the purchase of award, the contract). The ombudsman property (excluding real property) or will consider a disagreement and any services and all related matters. All response by other interested persons disputes, protests, claims, disagree- and appropriate Postal Service officials ments, or demands of whatsoever na- within a time frame established by the ture (hereinafter ‘‘disagreements’’) ombudsman. The ombudsman may also against the Postal Service arising in meet individually or jointly with the connection with the purchasing proc- person or organization lodging the dis- ess, except claims that arise pursuant agreement, other interested persons, to a contract under the Contract Dis- and/or Postal Service officials, and putes Act or claims concerning debar- may undertake other activities in ment, suspension, or ineligibility under order to obtain materials, information, § 601.113, will be lodged with and re- or advice that may help to resolve the solved, with finality, by the ombuds- disagreement. The person or organiza- man under and in accordance with the tion lodging the disagreement, other sole and exclusive procedure estab- interested persons, or Postal Service lished in this section. officials must promptly provide all rel- (c) A disagreement may be lodged evant, nonprivileged materials and with the ombudsman by an organiza- other information requested by the om- tion or a person with respect to the budsman. After obtaining such infor- Postal Service’s decision not to accept mation, materials, and advice as may or consider business proposals or the be needed, the ombudsman will award of a contract. promptly issue a decision in writing re- (d) The disagreement must be lodged solving a disagreement and will deliver in writing and must state the factual the decision to the person or organiza- circumstances relating to it, the rem- tion lodging the disagreement, other edy sought, and the rationale for the interested persons, and appropriate disagreement. Counsel is not required, Postal Service officials. If confidential but may be retained to assist in the or privileged material is needed in disagreement process. The person or order to reach a decision, the ombuds- organization lodging the disagreement man will notify the appropriate party must indicate in the disagreement to provide such material to the om- whether it is willing to attempt to re- budsman only. The confidential mate- solve the matter through informal dis- rial will be held in confidence by the cussions, mediation, or another means ombudsman and will be returned to the of ADR. party upon request at the conclusion of (e) A disagreement must be lodged the matter. with the ombudsman within twenty (g) In considering and in resolving a calendar days after the time it was pre- disagreement, the ombudsman will be sented in § 601.107. The ombudsman guided by the regulations contained in may grant an extension of time to this part and all applicable public laws lodge a disagreement or to provide sup- enacted by Congress. Non-Postal Serv- porting information when warranted. ice procurement rules or regulations Any request for an extension must set and revoked Postal Service regulations forth the reasons for the request, be will not apply or be taken into account made in writing, and be delivered to in resolving disagreements. Failure of the ombudsman on or before the time any party to provide promptly re- to lodge a disagreement lapses. The ad- quested information may be taken into dress of the ombudsman is: Attn: Om- account by the ombudsman in the deci- budsman, United States Postal Service sion. Headquarters, 475 L’Enfant Plaza, SW., (h) A decision of the ombudsman will Room 4110, Washington, DC 20260–6200. be final and binding on the person or

188

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00198 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 601.109

organization lodging the disagreement, (d) Postal Service Claim Initiation. The other interested persons, and the Post- contracting officer must issue a writ- al Service. However, the person or or- ten decision on any Postal Service ganization that lodged the disagree- claim against a supplier, within 6 years ment or another interested person may after accrual of a claim, unless the par- appeal the decision to a federal court ties agreed in writing to a shorter time with jurisdiction over such claims, but period. The 6-year time period does not only on the grounds that the decision: apply to contracts awarded prior to Oc- (1) Was procured by fraud or other tober 1, 1995, or to a Postal Service criminal misconduct; or claim based on a supplier claim involv- (2) Was obtained in violation of the ing fraud. regulations contained in this part or an (e) Certified Claims. Each supplier applicable public law enacted by Con- claim exceeding $100,000 must be ac- gress. companied by a certification in accord- (i) It is intended that this procedure ance with the supplier’s contract. generally will resolve disagreements (f) When the contracting officer de- within approximately 30 days after the termines that the supplier is unable to ombudsman receives the disagreement. support any part of the claim and there The time may be shortened or length- is evidence or reason to believe the in- ened depending on the complexity of ability is attributable to either mis- the issues and other relevant consider- representation of fact or fraud on the ations. supplier’s part, the contracting officer must deny that part of the claim and § 601.109 Contract claims and disputes. refer the matter to the Office of Inspec- (a) General. This section implements tor General. the Contract Disputes Act of 1978, as (g) Decision and Appeal—(1) Con- amended (41 U.S.C. 601–613). tracting Officer’s Authority. A con- (b) Policy. It is Postal Service policy tracting officer is authorized to decide to resolve contractual claims and dis- or settle all claims arising under or re- putes by mutual agreement at the level lating to a contract subject to the Con- of an authorized contracting officer tract Disputes Act, except for: whenever possible. In addition, the (i) Claims or disputes for penalties or Postal Service supports and encourages forfeitures prescribed by statutes or the use of alternative dispute resolu- regulation that a Federal agency ad- tion as an effective way to understand, ministers; or address, and resolve conflicts with sup- (ii) Claims involving fraud. pliers. Efforts to resolve differences (2) Contracting Officer’s Decision. The should be made before the issuance of a contracting officer must review the final decision on a claim, and even facts pertinent to the claim, obtain as- when the supplier does not agree to use sistance from assigned counsel and ADR, the contracting officer should other advisors, and issue a final deci- consider holding informal discussions sion in writing. The decision must in- between the parties in order to resolve clude a description of the claim or dis- the conflict before the issuance of a pute with references to the pertinent final decision. contract provisions, a statement of the (c) Contractor Claim Initiation. Sup- factual areas of agreement and dis- plier claims must be submitted in writ- agreement, and a statement of the con- ing to the contracting officer for final tracting officer’s decision with sup- decision. The contracting officer must porting rationale. document the contract file with evi- (3) Insufficient Information. When the dence of the date of receipt of any subcontracting officer cannot issue a deci- mission that the contracting officer de- sion because the supplier has not pro- termines is a claim. Supplier claims vided sufficient information, the con- must be submitted within 6 years after tracting officer must promptly request accrual of a claim unless the parties the required information. Further fail- agreed to a shorter time period. The 6- ure to provide the requested informa- year time period does not apply to con- tion is an adequate reason to deny the tracts awarded prior to October 1, 1995. claim.

189

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00199 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 601.110 39 CFR Ch. I (7–1–06 Edition)

(4) Furnishing Decisions. The con- procedure, which provides for a deci- tracting officer must furnish a copy of sion within approximately 120 days, or the decision to the supplier by Cer- an election to proceed under the tified Mail, return receipt requested, or Board’s accelerated procedure, which by any other method that provides evi- provides for a decision within approxi- dence of receipt. mately 180 days. If you do not make an (5) Decisions on Claims for $100,000 or election in the notice of appeal, you Less. If the supplier has asked for a de- may do so by written notice anytime cision within 60 days, the contracting thereafter.’’ officer must issue a final decision on a (9) Additional Wording for Decisions claim of $100,000 or less within 60 cal- Over $50,000 Up to $100,000. When the endar days of its receipt. The supplier claim or claims denied total $100,000 or may consider the contracting officer’s less, but more than $50,000, the con- failure to issue a decision within the tracting officer must add the following applicable time period as a denial of its to the paragraph: ‘‘In taking an appeal claim, and may file a suit or appeal on to the Board of Contract Appeals, you the claim. may include in your notice of appeal an (6) Decisions on Certified Claims. For election to proceed under the Board’s certified claims over $100,000, the con- accelerated procedure, which provides tracting officer must either issue a for a decision within approximately 180 final decision within 60 calendar days days. If you do not make an election in of their receipt or notify the supplier the notice of appeal, you may do so by within the 60-day period of the time written notice anytime thereafter.’’ when a decision will be issued. The (10) Contracting officers must have time period established must be rea- sufficient information available at the sonable, taking into account the size time a final decision is issued on a and complexity of the claim, the ade- claim so resolution of an appeal within quacy of the supplier’s supporting data, the period set for an expedited disposi- and any other relevant factors. tion will not be delayed. Once an ap- (7) Wording of Decisions. The con- peal is docketed, and expedited disposi- tracting officer’s final decision must tion is elected, contracting officers contain the following paragraph: ‘‘This must devote sufficient resources to the is the final decision of the contracting appeal to ensure the schedule for reso- officer pursuant to the Contract Dis- lution is met. Nothing in this part pre- putes Act of 1978 and the clause of your cludes an effort by the parties to settle contract entitled Claims and Disputes. a controversy after an appeal has been You may appeal this decision to the Postal Service Board of Contract Ap- filed, although such efforts to settle peals by mailing or otherwise fur- the controversy will not suspend proc- nishing written notice (preferably in essing the appeal, unless the Board of triplicate) to the contracting officer Contract Appeals so directs. within 90 days from the date you re- § 601.110 Payment of claims. ceive 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 12 months from the date you re- of appeal or action on the claim. In the ceive 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 in whole or in part to the supplier must claims denied total $50,000 or less, the be implemented promptly. In cases contracting officer must add the fol- when only the question of entitlement lowing to the paragraph: ‘‘In taking an has been decided and the matter of appeal to the Board of Contract Ap- amount has been remanded to the par- peals, you may include in your notice ties for negotiation, a final decision of of appeal an election to proceed under the contracting officer must be issued the Board’s small claims (expedited) if agreement is not reached promptly.

190

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00200 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 601.113

§ 601.111 Interest on claim amounts. (5) Ineligible. An exclusion from con- Interest on the amount found due on tracting and subcontracting by an enti- the supplier’s claim must be paid from ty other than the Postal Service under the date the contracting officer re- statutes, executive orders, or regula- ceived the claim (properly certified, if tions, such as the Davis Bacon Act, the required) or from the date payment Service Contract Act, the Equal Em- would otherwise be due, if that date is ployment Opportunity Acts, the Walsh- later, until the date of payment. Sim- Healy Public Contracts Act, or the En- ple interest will be paid at the rate es- vironmental Protection Acts and re- tablished by the Secretary of the lated regulations or executive orders, Treasury for each 6-month period in to which the Postal Service is subject which the claim is pending. Informa- or has adopted as a matter of policy. tion on the rate at which interest is (6) Judicial Officer. This includes the payable is announced periodically in acting Judicial Officer. the Postal Bulletin. (7) Suspension. An exclusion from contracting and subcontracting for a § 601.112 Review of adverse decisions. reasonable period of time due to speci- Any party may seek review of an ad- fied reasons or the pendency of a debar- verse decision of the Board of Contract ment proceeding. Appeals in the Court of Appeals for the (8) Supplier. For the purposes of this Federal Circuit or in any other appro- part, a supplier is any individual, per- priate forum. son, or other legal entity that: § 601.113 Debarment, suspension, and (i) Directly or indirectly (e.g., ineligibility. through an affiliate) submits offers for, (a) General. Except as provided other- is awarded, or reasonably may be ex- wise in this part, contracting officers pected to submit offers for or be award- may not solicit proposals from, award ed, a Postal Service contract, including contracts to, or consent to sub- a contract for carriage under Postal contracts with debarred, suspended, or Service or commercial bills of lading, ineligible suppliers. or a subcontract under a Postal Service (b) Definitions—(1) Affiliate. A busi- contract; or ness, organization, person, or indi- (ii) Conducts business or reasonably vidual connected by the fact that one may be expected to conduct business controls or has the power to control with the Postal Service as a subcon- the other or by the fact that a third tractor, an agent, or as a representa- party controls or has the power to con- tive of another supplier. trol both. Factors such as common (c) Establishment and Maintenance of ownership, common management, and Lists. (1) The vice president of Supply contractual relationships may be con- Management will establish, maintain, sidered. Franchise agreements are not and distribute to purchasing offices a conclusive evidence of affiliation if the list of suppliers debarred or suspended franchisee has a right to profit in pro- by the Postal Service. portion to its ownership and bears the risk of loss or failure. (2) The General Services Administra- (2) Debarment. An exclusion from con- tion (GSA) compiles and maintains a tracting and subcontracting for a rea- consolidated list of all persons and en- sonable, specified period of time com- tities debarred, suspended, proposed for mensurate with the seriousness of the debarment, or declared ineligible by offense, failure, or inadequacy of per- Federal agencies or the Government formance. Accountability Office. GSA posts the (3) General Counsel. This includes the list on the Internet and publishes a General Counsel’s authorized rep- hardcopy of the list. resentative. (3) The vice president of Supply Man- (4) Indictment. Indictment for a crimi- agement will notify the GSA of any nal offense. An information or other Postal Service debarment, suspension, filing by competent authority charging and change in the status of suppliers, a criminal offense is given the same ef- including any of their affiliates, on the fect as an indictment. Postal Service list.

191

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00201 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 601.113 39 CFR Ch. I (7–1–06 Edition)

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

192

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00202 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 601.113

(v) Any other offense indicating a (i) Whether the supplier had estab- lack of business integrity or business lished written standards of conduct and honesty. had published internal control systems (vi) Any other cause of a serious and at the time of the activity that con- compelling nature that debarment is stitutes cause for debarment or had warranted. adopted such procedures prior to any (2) The existence of a conviction in Postal Service investigation of the ac- paragraph (e)(1)(i) or (ii) of this section tivity cited as a cause for debarment. 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 debarring official. (v) Whether the supplier paid or (4) The criminal, fraudulent, or im- agreed to pay all criminal, civil, and proper conduct of an individual may be administrative liability and other costs imputed to the firm with which he or arising out of the improper activity, she is or has been connected when an including any investigative or adminis- impropriety was committed. Likewise, trative costs incurred by the Postal when a firm is involved in criminal, Service, and made or agreed to make fraudulent, or other improper conduct, full restitution. any person who participated in, knew (vi) Whether the supplier took appro- of, or had reason to know of the impro- priate disciplinary action against the priety may be debarred. individual(s) responsible for the activ- (5) The fraudulent, criminal, or other ity that could cause debarment. improper conduct of one supplier par- (vii) Whether the supplier imple- ticipating in a joint venture or similar mented and/or agreed to implement re- arrangement may be imputed to other medial measures, including those iden- participating suppliers if the conduct tified by the Postal Service. occurred for or on behalf of the joint (viii) Whether the supplier instituted venture or similar arrangement, or and/or agreed to institute new and/or with the knowledge, approval, or acqui- revised review and control procedures escence of the supplier. Acceptance of and ethics programs. the benefits derived from the conduct (ix) Whether the supplier had ade- will be evidence of such knowledge, ap- quate time to eliminate circumstances proval, or acquiescence. within the supplier’s organization that (f) Mitigating Factors. (1) The exist- could lead to debarment. ence of any cause for debarment does (x) Whether the supplier’s senior offi- not necessarily require that a supplier cers and mid-level management recog- be debarred. The decision to debar is nize and understand the seriousness of within the discretion of the vice presi- the misconduct giving rise to debar- dent of Supply Management, with the ment. concurrence of the General Counsel, (2) The existence or nonexistence of and must be made in the best interest mitigating factors or remedial meas- of the Postal Service. The following ures such as those above is not deter- factors may be assessed in determining minative whether or not a supplier the seriousness of the offense, failure, should be debarred. If a cause for de- or inadequacy of performance, and may barment exists, the supplier has the be taken into account in deciding burden of demonstrating, to the satis- whether debarment is warranted: faction of the vice president of Supply

193

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 601.113 39 CFR Ch. I (7–1–06 Edition)

Management that debarment is not debarment; the anticipated period of warranted or necessary. debarment and the proposed effective (g) Period of Debarment. (1) When an date; and, within 30 days of the notice, applicable statute, executive order, or the supplier may submit, in person or controlling regulation of other agen- in writing, or through a representative, cies provides a specific period of debar- information and argument in opposi- ment, that period applies. In other tion to the proposed debarment. In the cases, debarment by the Postal Service event a supplier does not submit infor- should be for a reasonable, definite, mation or argument in opposition to stated period of time, commensurate the proposed debarment to the vice with the seriousness of the offense or president of Supply Management with- the failure or inadequacy of perform- in the time allowed, the debarment ance. Generally, a period of debarment will become final with no further re- should not exceed 3 years. When debar- view or appeal. ment 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 of 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 of cumstances or if there are questions re- Supply Management when requested by garding material facts, the vice presi- the debarred supplier and when the re- dent of, Supply Management may seek quest is supported by a reasonable jus- additional information from the sup- tification, such as newly discovered plier and/or other persons, and may re- material evidence, reversal of a convic- quest the Judicial Officer to hold a tion, bona fide change of ownership or fact-finding hearing on such matters. management, or the elimination of the The hearing will be governed by rules causes for which debarment was im- of procedure promulgated by the Judi- posed. The vice president of Supply cial Officer. The vice president of Sup- Management may, at his or her discre- ply Management may reject any find- tion, deny any request or refer it to the ings of fact, in whole or in part, when Judicial Officer for a hearing and for they are clearly erroneous. findings of fact, which the vice presi- (3) When the vice president of Supply dent of Supply Management will con- Management proposes to debar a sup- sider when deciding the matter. When a plier already debarred by another gov- debarment is removed or the debar- ernment agency for a period concur- ment period is reduced, the vice presi- rent with such debarment, the debar- dent of Supply Management must state ment proceedings before the Postal in writing the reason(s) for the removal Service may be based entirely upon the of the debarment or the reduction of record of evidence, facts, and pro- the period of debarment. ceedings before the other agency, upon (h) Procedural Requirements for Debar- any additional facts the Postal Service ment. (1) After securing the concur- deems relevant, or on the decision of rence of the General Counsel, the vice another government agency. In such president of Supply Management will cases, the findings of facts by another initiate a debarment proceeding by government agency may be considered sending the supplier a written notice of as established, but, within 30 days of proposed debarment. The notice will be the notice of proposed debarment, the served by sending it to the last known supplier may submit, in person or in address of the supplier by Certified writing, or through a representative, Mail, return receipt requested. A copy any additional facts, information, or of the notice will be furnished to the argument to the vice president of Sup- Office of Inspector General. The notice ply Management, and to explain why will state that debarment is being con- debarment by the Postal Service sidered; the reason(s) for the proposed should not be imposed.

194

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00204 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 602.1

(4) Questions of fact to be resolved by of a suspension or an extension of a a hearing before the Judicial Office suspension and the reason(s) for the will be based on the preponderance of suspension or extension in writing sent the evidence. to the supplier by Certified Mail, re- (5) After consideration of the cir- turn receipt requested, within 10 days cumstances and any information and after the effective date of the suspen- argument submitted by the supplier, sion or extension. A copy of the notice the vice president of Supply Manage- will be furnished to the Office of the In- ment, with the concurrence of the Gen- spector General. eral Counsel, will issue a written deci- (2) The notice will state the cause(s) sion regarding whether the supplier is for the suspension or extension. debarred, and, if so, for the period of (3) Within 30 days of notice of suspen- debarment. The decision will be mailed sion or an extension, a supplier may to the supplier by Certified Mail, resubmit to the vice president of Supply turn receipt requested. A copy of the Management in writing, any informa- decision will be furnished to the Office tion or reason(s) the supplier believes of the Inspector General. The decision makes a suspension or an extension in- will be final and binding, unless: appropriate, and the vice president of (i) The decision was procured by Supply Management in consultation fraud or other criminal misconduct or with the General Counsel, will consider (ii) The decision was obtained in vio- the supplier’s submission, and, in their lation of the regulations contained in discretion, may revoke a suspension or this part or an applicable public law an extension of a suspension. If a sus- enacted by Congress. pension or extension is revoked, the (i) Causes for Suspension. The vice revocation will be in writing and a president of Supply Management may copy of the revocation will be sent to suspend any supplier, including any of the supplier by Certified Mail, return its affiliates, if: receipt requested. A copy of the revoca- (1) The supplier commits, is indicted tion will be furnished to the Office of for, or is convicted of fraud or a crimi- the Inspector General. nal offense incidental to obtaining, attempting to obtain, or performing a PART 602—INTELLECTUAL PROPERTY government contract, violates a Fed- RIGHTS OTHER THAN PATENTS eral antitrust statute arising out of the submission of bids and proposals, or Sec. commits or engages in embezzlement, 602.1 General principles. theft, forgery, bribery, falsification or 602.2 Office of Licensing, Philatelic and Re- destruction of records, receipt of stolen tail Services Department. 602.3 Requests for use. property, or any other offense indicating a lack of business integrity or AUTHORITY: 39 U.S.C. 401(5). business honesty; or SOURCE: 43 FR 42250, Sept. 20, 1978, unless (2) If the Postal Service has notified otherwise noted. a supplier of its proposed debarment under this Part. § 602.1 General principles. (j) Period of Suspension. A suspension It is the policy of the Postal Service will not exceed 1 year in duration, ex- to secure full ownership rights for its cept a suspension may be extended for intellectual properties other than pat- reasonable periods of time beyond 1 ents (hereinafter, intellectual prop- year by the vice president of Supply erties) having significant economic or Management. The termination of a sus- other business value, except when to do pension will not prejudice the Postal so would be contrary to the best inter- Service’s position in any debarment est of the Postal Service. Intellectual proceeding. A suspension will be super- property rights shall be acquired and seded by a decision rendered by the managed so as to: vice president of Supply Management, (a) Promote the economic, oper- under paragraph (h)(5) of this section. ational, and competitive well-being of (k) Procedural Requirements for Sus- the Postal Service; pension. (1) The vice president of Sup- (b) Limit restrictions on the use of ply Management will notify a supplier Postal Service intellectual property to

195

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00205 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 602.2 39 CFR Ch. I (7–1–06 Edition)

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

SUBCHAPTER I [RESERVED]

196

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00206 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER J—POSTAL SERVICE DEBT OBLIGATIONS; DISBURSEMENT POSTAL MONEY ORDERS

PART 760—APPLICABILITY OF TREA- of the United States acting on behalf of SURY DEPARTMENT REGULATIONS 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 authorizing resolution of the Board of (39 U.S.C. Secs. 401, 402, 2005) Governors of the Postal Service on [37 FR 211, Jan. 7, 1972] 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. company which is a member of a Re- 761.1 Definition of terms. serve bank. 761.2 Authority of Reserve Banks. 761.3 Scope and effect of book-entry proce- § 761.2 Authority of Reserve Banks. dure. 761.4 Transfer or pledge. Each Reserve Bank is hereby author- 761.5 Withdrawal of Postal Service securi- ized, in accordance with the provisions ties. of this part, to (a) issue book-entry 761.6 Delivery of Postal Service securities. Postal Service securities by means of 761.7 Registered bonds and notes. entries on its records which shall in- 761.8 Servicing book-entry Postal Service clude the name of the depositor, the securities; payment of interest, payment amount, the loan title (or series) and at maturity or upon call. maturity date; (b) effect conversions AUTHORITY: 39 U.S.C. 401, 402, 2005. between book-entry Postal Service se- SOURCE: 37 FR 16801, Aug. 19, 1972, unless curities and definitive Postal Service otherwise noted. securities; (c) otherwise service and maintain book-entry Postal Service se- § 761.1 Definition of terms. curities; and (d) issue a confirmation of In this part, unless the context oth- transaction in the form of a written ad- erwise requires or indicates: vice (serially numbered or otherwise) (a) Reserve Bank means the Federal which specifies the amount and de- Reserve Bank of New York (and any scription of any securities; that is, loan other Federal Reserve Bank which title (or series) and maturity date, sold agrees to issue Postal Service securi- or transferred, and the date of the ties in book-entry form) as fiscal agent transaction.

197

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00207 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 761.3 39 CFR Ch. I (7–1–06 Edition)

§ 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 both as revised and amended, and may this part, including securities in book- apply the book-entry procedure, with entry form under § 761.3(a)(3), is ef- the approval of the Secretary of the fected, and a pledge is perfected, by

198

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00208 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 761.6

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 purposes of acknowledgment of transfers [37 FR 16801, Aug. 19, 1972, as amended at 38 thereof under this paragraph. Where FR 12919, May 17, 1973] transferable Postal Service securities § 761.5 Withdrawal of Postal Service are recorded on the books of a deposi- securities. tary (a bank, banking institution, financial firm, or similar party, which (a) A depositor of book-entry Postal regularly accepts in the course of its Service securities may withdraw them business Postal Service securities as a from a Reserve Bank by requesting de- custodial service for customers, and livery of like definitive Postal Service maintains accounts in the names of securities to itself or on its order to a such customers reflecting ownership of transferee. or interest in such securities) for ac- (b) Postal Service securities which count of the pledgor or transferor are actually to be delivered upon with- thereof and such securities are on de- drawal may be issued either in reg- posit with a Reserve bank in a book- istered or in bearer form. entry account hereunder, such depositary shall, for purposes of perfecting a § 761.6 Delivery of Postal Service secu- pledge of such securities or effecting rities. delivery of such securities to a pur- A Reserve Bank which has received chaser under applicable provisions of Postal Service securities and effected law, be the bailee to which notification pledges, made entries regarding them, of the pledge of the securities may be or transferred or delivered them ac- given or the third person in possession cording to the instructions of its de- from which acknowledgment of the positor is not liable for conversion or holding of the securities for the pur- for participation in breach of fiduciary chaser may be obtained. A Reserve duty even though the depositor had no bank will not accept notice or advice of right to dispose of or take other action a transfer or pledge effected or per- in respect of the securities. A Reserve fected under this paragraph, and any Bank shall be fully discharged of its such notice or advice shall have no ef- obligations under this part by the defect. A Reserve bank may continue to livery of Postal Service securities in deal with its depositor in accordance definitive form to its depositor or upon with the provisions of this part, not- the order of such depositor. Customers withstanding any transfer or pledge ef- of a member bank or other depositary fected or perfected under this para- (other than a Reserve Bank) may ob- graph. tain Postal Service securities in defini- (c) No filing or recording with a pub- tive form only by causing the depositor lic recording office or officer shall be of the Reserve Bank to order the with- necessary or effective with respect to drawal thereof from the Reserve Bank.

199

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00209 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 761.7 39 CFR Ch. I (7–1–06 Edition)

§ 761.7 Registered bonds and notes. 762.22 Definitions. 762.23 General rules. No formal assignment shall be re- 762.24 Guaranty of endorsements. quired for the conversion to book-entry 762.25 Reclamation of amounts of paid dis- Postal Service securities of registered bursement postal money orders. Postal Service securities held by a Re- 762.26 Postal facilities not to cash disburse- serve Bank (in either its individual ca- ment postal money orders. pacity or as fiscal agent of the United 762.27 Processing of disbursement postal money orders by Federal Reserve Banks. States) on the effective date of this 762.28 Release of original disbursement part for any purpose specified in postal money orders. § 761.3(a). Registered Postal Service se- 762.29 Endorsement of disbursement postal curities deposited thereafter with a Re- money orders by payees. serve Bank for any purpose specified in 762.30 Disbursement postal money orders § 761.3 shall be assigned for conversion issued to incompetent payees. to book-entry Postal Service securi- 762.31 Disbursement postal money orders ties. The assignment, which shall be issued to deceased payees. executed in accordance with the provi- Subpart C—Issuance of Substitutes for Lost, sions of part 760 of this subchapter and Destroyed, Mutilated, and Defaced subpart F of 31 CFR part 306, so far as Disbursement Postal Money Orders applicable, shall be to ‘‘Federal Re- serve Bank of llllll as fiscal 762.41 Advice of non-receipt or loss, destruc- agent of the United States acting on tion, or mutilation. behalf of the Postal Service for conver- 762.42 Request for substitute disbursement sion to book-entry Postal Service secu- postal money orders; requirements for rities.’’ undertaking of indemnity. 762.43 Issuance of substitute disbursement § 761.8 Servicing book-entry Postal postal money order. Service securities; payment of inter- 762.44 Receipt or recovery of original dis- est, payment at maturity or upon bursement postal money order. call. 762.45 Removal of stoppage of payment. Interest becoming due on book-entry AUTHORITY: 39 U.S.C. 401(2), 401(3), 401(4), Postal Service securities shall be 401(10), and 404(6). charged in the Postal Service Fund on SOURCE: 40 FR 52371, Nov. 10, 1975, unless the interest due date and remitted or otherwise noted. credited in accordance with the depositor’s instructions. Such securities shall Subpart A—General, Definitions, be redeemed and charged in the Postal Issuance Service Fund on the date of maturity, call or advance refunding, and the re- § 762.11 General. demption proceeds, principal and inter- The Postal Service, at its discretion, est, shall be disposed of in accordance issues a specialized postal money order, with the depositor’s instructions. designated a Disbursement Postal Money Order in payment of Postal PART 762—DISBURSEMENT POSTAL Service obligations. Disbursement MONEY ORDERS Postal Money Orders are distinguishable on their face from other postal Subpart A—General, Definitions, Issuance money orders in the following ways: (a) Disbursement Postal Money Or- Sec. ders have words of negotiability—‘‘Pay 762.11 General. 762.12 Definitions. to the order of’’—printed on their face, 762.13 Issuance. while other postal money orders simply 762.14 Amounts for which disbursement bear the words ‘‘Pay to’’ on their face; postal money orders may be issued. (b) Disbursement Postal Money Or- 762.15 Postal Service payments not made by ders, unlike other postal money orders, disbursement postal money order. bear on their face the phrase, ‘‘This special money order is drawn by the Subpart B—Endorsements, Payment, Guar- Postal Service to pay one of its own ob- anties, Warranties and Processing of ligations.’’; and Disbursement Postal Money Orders (c) The amounts of Disbursement 762.21 Scope. Postal Money Orders are printed in

200

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00210 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 762.24

words as well as numbers, while the § 762.15 Postal Service payments not amounts of postal money orders avail- made by disbursement postal able at post offices are printed in num- money order. bers only. Postal Service payments not made by Disbursement Postal Money Order are § 762.12 Definitions. made by cash, U.S. Treasury Check, or As used in part 762 of this chapter, by regular postal money order, and the term: may be made by electronic funds trans- (a) Disbursement Postal Money Order fer. means a money order (described in Part 762) issued by the Postal Service Subpart B—Endorsements, Pay- to pay one of its own obligations. ment, Guaranties, Warranties (b) Federal Reserve Bank means a Fed- and Processing of Disburse- eral Reserve Bank or branch thereof. ment Postal Money Orders (c) Financial organization means any bank, savings bank, savings and loan § 762.21 Scope. association or similar institution, or The regulations in this subpart pre- Federal or State chartered credit scribe the requirements for endorse- union. ment and the conditions for payment (d) Person or persons means an indi- of Disbursement Postal Money Orders vidual or individuals, or an organiza- drawn by the Postal Service. tion or organizations, whether incor- § 762.22 Definitions. porated or not, including all forms of For definitions applicable to this sub- banking institutions. part see § 762.12 of this chapter. (e) Presenting Bank means a bank or other depositor of a Federal Reserve § 762.23 General rules. Bank which presents Disbursement All Disbursement Postal Money Or- Postal Money Orders to and receives ders drawn by the Postal Service are credit therefor from a Federal Reserve payable without limitation of time. Bank. The Postal Service shall have the usual (f) Reclamation means the action right of a drawee to examine Disburse- taken by the Postal Service to obtain ment Postal Money Orders presented refund of the amounts of paid Disburse- for payment and refuse payment of any ment Postal Money Orders. Disbursement Postal Money Orders, (g) Postal Service means the U.S. and shall have a reasonable time to Postal Service. make such examination. Disbursement Postal Money Orders shall be deemed § 762.13 Issuance. to be paid by the Postal Service only Disbursement Postal Money Orders after first examination has been fully are issued solely by Postal Data Cen- completed. If the Postal Service is on 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 disbursement postal money orders may be The presenting bank and the endors- issued. ers of a Disbursement Postal Money 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 priate to pay Postal Service Obliga- prior endorsements are genuine, wheth- tions. There is no maximum amount er or not an express guaranty is placed above which a Disbursement Postal on the Disbursement Postal Money Money Order may not be issued. Order. When the first endorsement has been made by one other than the payee

201

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00211 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 762.25 39 CFR Ch. I (7–1–06 Edition)

personally, the presenting bank and (b) Each Federal Reserve Bank shall: the endorsers shall be deemed to guar- (1) Receive Disbursement Postal antee to the Postal Service, in addition Money Orders from its member banks, to other warranties, that the person and its other depositors which guar- who so endorsed had unqualified capac- antee all prior endorsements thereon; ity and authority to endorse the Dis- (2) Give immediate credit therefor in bursement Postal Money Order on be- accordance with its current Time half of the payee. Schedules and charge the amount thereof to the general account of the § 762.25 Reclamation of amounts of U.S. Treasury, subject to examination paid disbursement postal money or- and payment by the Postal Service; ders. and The Postal Service shall have the (3) Forward the Disbursement Postal right to demand refund from the pre- Money Orders to the Postal Service. senting bank of the amount of a paid 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 An original Disbursement Postal or unauthorized endorsement, or an en- Money Order may be released to a re- dorsement by another for a deceased sponsible endorser only upon receipt of payee where the right to the proceeds a properly authorized request showing of such Disbursement Postal Money Or- the reason it is required. ders terminated upon the death of the 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 re- (a) General requirements. Disburse- fund is not made, the Postal Service ment Postal Money Orders shall be en- shall take such action against the dorsed by the payee or the payees proper parties as may be necessary to named, or by another on behalf of such protect its interests. payee or payees as set forth in this subpart B. The forms of endorsement shall § 762.26 Postal facilities not to cash conform to those recognized by general disbursement postal money orders. 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 bursement Postal Money Orders as fol- acting as an attorney in fact for the lows: payee or payees, under his or their au- (a) Federal Reserve Banks shall not thorization. be expected to cash Disbursement Post- (c) Endorsement of disbursement postal al Money Orders presented directly to money orders drawn in favor of financial them for payment; and organizations. All Disbursement Postal

202

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00212 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 762.42

Money Orders drawn in favor of finan- or defacement of a Disbursement Post- cial organizations, for credit to the ac- al Money Order to an extent which ren- counts of persons designating payment ders it non-negotiable, the owner so to be made, shall be endorsed in the should immediately contact the Money name of the financial organization as Order Division, Postal Data Center, payee in the usual manner. P.O. Box 14963, St. Louis, MO 63182, describing the Disbursement Postal § 762.30 Disbursement postal money orders issued to incompetent pay- Money Order, stating the purpose for ees. which it was issued, giving, if possible, (a) If the Disbursement Postal Money its date, number, and amount, and re- Order is endorsed by a legal guardian questing that payment be stopped. In or other fiduciary and presented for cases involving mutilated or defaced payment by a bank it will be paid by Disbursement Postal Money Orders the the Postal Service without submission owner should enclose the mutilated or to the Postal Service of documentary defaced item with his communication. proof of authority of the guardian or (b) If the Disbursement Postal Money other fiduciary. Order, which is the basis of the owner’s (b) If a guardian has not been or will claim, is determined to be outstanding, not be appointed, the Disbursement the Money Order Division shall furnish Postal Money Order shall be forwarded the claimant an appropriate applica- to the Money Order Division, Postal tion form for obtaining a substitute Data Center, P.O. Box 14963, St. Louis, Disbursement Postal Money Order. MO 63182, with a full explanation of the However, the execution of an applica- circumstances. tion shall not be required in the event the original written statement sub- § 762.31 Disbursement postal money orders issued to deceased payees. mitted by the claimant substantially meets the requirements of the pre- (a) If the Disbursement Postal Money scribed application form. Order is endorsed by an Executor or Administrator and presented for pay- § 762.42 Request for substitute dis- ment by a bank it will be paid by the bursement postal money orders; re- Postal Service without submission to quirements for undertaking of in- the Postal Service of documentary demnity. proof of the authority of the Executor In the case of a request for a sub- or Administrator. (b) If an Executor or Administrator stitute Disbursement Postal Money has not been appointed or if there is Order: doubt as to whether the proceeds of the (a) An undertaking of indemnity in Disbursement Postal Money Order pass penal sum equal to the amount of the to the estate of the deceased payee, the Disbursement Postal Money Order instrument should be returned to the shall, unless otherwise provided in this Money Order Division, Postal Data section, be executed by the claimant, Center, P.O. Box 14963, St. Louis, MO as may be required by the Postal Serv- 63182, for determination whether, under 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, Subpart C—Issuance of Substitutes no undertaking of indemnity shall be for Lost, Destroyed, Mutilated, required in the following classes of and Defaced Disbursement cases: Postal Money Orders (1) If the Postal Service is satisfied that the loss, theft, destruction, muti- § 762.41 Advice of non-receipt or loss, lation or defacement occurred without destruction, or mutilation. fault of the owner or holder, and while (a) In the event of the non-receipt, the Disbursement Postal Money Order loss, or destruction of a Disbursement was in the custody or control of the Postal Money Order, or the mutilation Postal Service;

203

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00213 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 762.43 39 CFR Ch. I (7–1–06 Edition)

(2) If substantially the entire Dis- § 762.44 Receipt or recovery of original bursement Postal Money Order is pre- disbursement postal money order. sented and surrendered by the owner or (a) If the original Disbursement Post- holder and the Postal Service is satis- al Money Order is received or recovered fied as to the identity of the Disburse- by the owner after he has requested the ment Postal Money Order presented Postal Service to stop payment on the and that any missing portions are not original but before a substitute has sufficient to form the basis of a valid been received, he should immediately claim against the Postal Service; advise the Money Order Division and (3) If the Postal Service is satisfied hold such original Disbursement Postal that the original Disbursement Postal Money Order until receipt of instruc- Money Order is not negotiable and can- tions with respect to its negotiability. not be made the basis of a valid claim (b) If the original Disbursement Post- against the Postal Service; or al Money Order is received by the (4) If the amount of the Disbursement owner after a substitute has been re- Postal Money Order is not more than ceived by him, the original shall not be cashed, but shall be immediately for- $200. warded to the Money Order Division. § 762.43 Issuance of substitute dis- Under no circumstances shall both the bursement postal money order. original and substitute be cashed. Upon approval of the undertaking of § 762.45 Removal of stoppage of pay- indemnity, application, or statement of ment. claim, the Money Order Division shall Requests for removal of stoppage of issue to the claimant a substitute Dis- payment shall be addressed to the bursement Postal Money Order show- Money Order Division. No request for ing such information as may be nec- removal of stoppage of payment shall essary to identify the original instru- be accepted after issuance of a sub- ment. stitute Disbursement Postal Money Order has been approved.

204

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00214 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER K—ENVIRONMENTAL REGULATIONS

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.

205

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00215 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 775.5 39 CFR Ch. I (7–1–06 Edition)

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.

206

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00216 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 775.6

(6) Reduction in force resulting from ‘‘reference actions’’ shall be main- workload adjustments, reduced per- tained by the Chief Environmental Of- sonnel or funding levels, skill imbal- ficer or designee. The proposed action ances or other similar causes that do must be essentially the same in con- not affect more than 1,000 positions. text and the same or less in intensity (7) Postal rate or mail classification or create fewer impacts than the ‘‘ref- actions, address information system erence action’’ previously studied changes, post office name and zip code under an EA or EIS in order to qualify changes. for this exclusion. (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.).

207

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00217 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 775.7 39 CFR Ch. I (7–1–06 Edition)

(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:

208

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00218 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 775.9

(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.

209

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00219 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 775.9 39 CFR Ch. I (7–1–06 Edition)

(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

210

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00220 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 775.11

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.

211

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00221 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 775.11 39 CFR Ch. I (7–1–06 Edition)

(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

212

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00222 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 775.11

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

213

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00223 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 775.12 39 CFR Ch. I (7–1–06 Edition)

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.

214

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00224 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service Pt. 776

(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.

215

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00225 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 776.1 39 CFR Ch. I (7–1–06 Edition)

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

216

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00226 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 776.5

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

217

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00227 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 776.6 39 CFR Ch. I (7–1–06 Edition)

(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:

218

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00228 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 776.10

(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.

219

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00229 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER L—SPECIAL REGULATIONS

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

220

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00230 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.13

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 per- date the Postal Service leases or con- sons’’ are entitled to receive benefits tracts to lease such property, and fur- only as specifically provided for else- ther provided such tenant was lawfully where in 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

221

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00231 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.13 39 CFR Ch. I (7–1–06 Edition)

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

222

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00232 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.21

gross income of the displaced family or (p) Person. Any individual, family, individual. (Supplemental payments partnership, corporation, association, made by public agencies are to be in- business or farm operation. cluded in gross income for purposes of (q) Personal Property. Any tangible these comparisons.) property, not considered part of the (l) Initiation of Negotiations. In the real property, for which payment has case where eminent domain is neither not been included in the acquisition exercised nor threatened to be exer- cost. cised, the initiation of negotiations is (r) Tenant. A person who has the the initial written communication legal right to temporary use and occu- stating a price by the owner or the pancy of real property owned by an- owner’s representative to the Postal other. In some cases, these regulations Service, or by the Postal Service to the also use the term ‘‘tenant’’ to refer to owner or the owner’s representative, a person who occupies real property regarding a proposed acquisition (by owned by another but whose legal right purchase or lease) or an interest in a was terminated due to a timely notice specific piece of real property. In the to vacate the real property used and case where eminent domain is either occupied. exercised or threatened to be exercised, the initiation of negotiations is the [51 FR 6983, Feb. 27, 1986, as amended at 54 FR 10666, Mar. 15, 1989] date the Postal Service makes a written offer of just compensation. § 777.14 Certain indirect actions pro- (m) Notice of Displacement. A notice hibited. given in writing by the Postal Service Postal employees shall take no indi- to a person that he or she will be dis- rect, coercive, or deceptive actions to placed from his or her place of resi- cause persons to move from real prop- dence, business or farm, as a result of erty in an effort to avoid the cir- a facility action by the Postal Service. cumstances under which such persons A notice of displacement may be com- would be eligible to receive relocation bined with or in a notice to vacate. benefits as displaced persons under (n) Notice to Vacate. A notice given in these regulations. If a claimant dem- writing by the Postal Service to a per- onstrates that such prohibited action son that he or she is to vacate postal caused him or her to move, he or she owned property on or before a certain will be treated as a displaced person date. A notice to vacate may be com- hereunder, if he or she otherwise meets bined with or in a notice of displace- the definition of a displaced person. ment. (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

223

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00233 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.22 39 CFR Ch. I (7–1–06 Edition)

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

224

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00234 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.23

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,

225

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00235 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.23 39 CFR Ch. I (7–1–06 Edition)

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.

226

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00236 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.23

(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.

227

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00237 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.23 39 CFR Ch. I (7–1–06 Edition)

(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:

228

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00238 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.23

(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:

229

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00239 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.24 39 CFR Ch. I (7–1–06 Edition)

(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

230

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00240 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.24

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

231

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00241 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.25 39 CFR Ch. I (7–1–06 Edition)

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 rahabilitated 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.

232

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.26

(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

233

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00243 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.27 39 CFR Ch. I (7–1–06 Edition)

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

234

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00244 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.28

§ 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.)

235

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00245 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.31 39 CFR Ch. I (7–1–06 Edition)

(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

236

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00246 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 777.32

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,

237

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00247 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 777.33 39 CFR Ch. I (7–1–06 Edition)

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.

238

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00248 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 778.4

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

239

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00249 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 778.5 39 CFR Ch. I (7–1–06 Edition)

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:

240

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00250 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 778.11

(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.

241

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00251 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 778.12 39 CFR Ch. I (7–1–06 Edition)

§ 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]

242

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00252 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 SUBCHAPTER N—PROCEDURES

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 ARISING OUT OF THE OPERATION (a) Claim. A claim under the Federal 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. 912.4 Place of filing. Service. 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 information submitted. Claims Coordinator for the Postal 912.9 Final denial of claim. Service District Office where the acci- 912.10 Action on approved claims. dent occurred, but may be filed at any 912.11 Exclusiveness of remedy. office of the Postal Service, or sent di- 912.12 Review by legal officers. rectly to the Chief Counsel, National 912.13 Attorneys’ fees. Tort Center, U.S. Postal Service, P.O. 912.14 Conclusiveness of remedy. Box 66640, St. Louis, MO 63166–6640.

AUTHORITY: 28 U.S.C. 2671–2680; 28 CFR 14.1 [69 FR 52607, Aug. 27, 2004] 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 erty, personal injury, or death alleged Claims Act. 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);

243

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00253 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 912.6 39 CFR Ch. I (7–1–06 Edition)

(2) The Postal Service’s issuance of a monthly or yearly salary or earnings, payment in the full amount of the if any, and the duration of his last em- claim; or ployment or occupation. (3) The Postal Service’s issuance of a (3) Full names, addresses, birth dates, written denial of the claim in accord- kinship, and marital status of the dece- ance with § 912.9. dent’s survivors, including identifica- [36 FR 12448, June 30, 1971, as amended at 45 tion of those survivors who were de- FR 43720, June 30, 1980; 69 FR 52607, Aug. 27, pendent for support upon the decedent 2004] at the time of his death. (4) Degree of support afforded by the § 912.6 Administrative claim; who may decedent to each survivor dependent file. upon him for support at the time of his (a) A claim for injury to or loss of death. property may be presented by the (5) Decedent’s general physical and owner of the property, his duly author- mental condition before death. ized agent, or legal representative. (6) Itemized bills for medical and bur- (b) A claim for personal injury may ial expenses incurred by reason of the be presented by the injured person, his incident causing death, or itemized re- duly authorized agent, or legal rep- ceipts of payment for such expenses. resentative. (7) If damages for pain and suffering (c) A claim based on death may be prior to death are claimed, a physi- presented by the executor or adminis- cian’s detailed statement specifying trator of the decedent’s estate, or by the injuries suffered, duration of pain any other person legally entitled to as- and suffering, any drugs administered sert such a claim in accordance with for pain, and the decedent’s physical applicable State law. condition in the interval between in- (d) A claim for loss wholly com- jury and death. pensated by an insurer with the rights (8) Any other evidence or information of a subrogee may be presented by the which may have a bearing on either the insurer. A claim for loss partially com- responsibility of the United States for pensated by an insurer with the rights the death or the damages claimed. of a subrogee may be presented by the (b) Personal injury. In support of a parties individually as their respective claim for personal injury, including interests appear, or jointly. pain and suffering, the claimant may (e) A claim presented by an agent or be required to submit the following legal representative shall be presented evidence or information: in the name of the claimant, be signed (1) A written report by his attending by the agent or legal representative, physician or dentist setting forth the show the title or legal capacity of the nature and extent of the injury, nature person signing, and be accompanied by and extent of treatment, any degree of evidence of his authority to present a temporary or permanent disability, the claim on behalf of the claimant as prognosis, period of hospitalization, agent, executor, administrator, parent, and any diminished earning capacity. guardian, or other representative. In addition, the claimant may be re- [36 FR 12448, June 30, 1971, as amended at 45 quired to submit to a physical or men- FR 43720, June 30, 1980] tal examination by a physician employed by the agency or another Fed- § 912.7 Evidence and information to be eral agency. A copy of the report of the submitted. examining physician shall be made (a) Death. In support of a claim based available to the claimant upon the on death, the claimant may be required claimant’s written request, provided to submit the following evidence or in- that he has, upon request, furnished formation: the report referred to in the first sen- (1) An authenticated death certifi- tence of this paragraph and has made, cate or other competent evidence show- or agrees to make available to the ing cause of death, date of death, and agency or another Federal agency. A age of the decedent. copy previously or thereafter made of (2) Decedent’s employment or occu- the physical or mental condition which pation at time of death, including is the subject matter of his claim.

244

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00254 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 912.10

(2) Itemized bills for medical, dental, denial may include a statement of the and hospital expenses incurred, or reasons for the denial and shall include itemized the report referred to in the a statement that, if the claimant is first expenses. dissatisfied with the agency action, he (3) If the prognosis reveals the neces- may file suit in an appropriate U.S. sity for future treatment, a statement District Court not later than 6 months of expected expenses for such treat- after the date of mailing of the nota- ment. tion. (4) If a claim is made for loss of time (b) Prior to the commencement of for employment, a written statement suit and prior to the expiration of the from his employment, whether he is a 6 month period provided in 28 U.S.C. full- or part-time employee, and wages 2401(b), a claimant, his duly authorized or salary actually lost. agent, or legal representative, may file (5) If a claim is made for loss of in- a written request with the postal offi- come and the claimant is self-em- cial who issued the final denial or with ployed, documentary evidence showing the Chief Counsel, National Tort Cen- the amount of earnings actually lost. ter, U.S. Postal Service, P.O. Box 66640, (6) Any other evidence or information St. Louis, MO 63166–6640, for a reconsid- which may have a bearing on either the eration of a final denial of a claim responsibility of the United States for under paragraph (a) of this section. the personal injury or the damages Upon the timely filing of a request for claimed. reconsideration, the Postal Service (c) Property damage. In support of a shall have 6 months from the date of claim for injury to or loss of property, filing in which to make a disposition of real or personal, the claimant may be the claim and the claimant’s option required to submit the following evi- under 28 U.S.C. 2675(a) shall not accrue dence or information: until 6 months after the filing of a re- (1) Proof of ownership. quest for reconsideration. Final Postal (2) A detailed statement of the Service action on a request for recon- amount claimed with respect to each sideration shall be effected in accord- item of property. ance 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 deten 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- ice, P.O. Box 66640, St. Louis, MO 63166– [36 FR 12449, June 30, 1971] 6640. (d) Only one request for reconsider- § 912.8 Sufficiency of evidence and ination of a final denial may be filed. A formation submitted. claimant shall have no right to file a In order to exhaust the administra- request for reconsideration of a final tive remedy provided, a claimant shall denial issued in response to a request submit substantial evidence to prove for reconsideration. the extent of any losses incurred and (28 U.S.C. 2671–2680; 28 CFR 14.1–14.11; 39 any injury sustained, so as to provide U.S.C. 401, 409, 2008) the Postal Service with sufficient evidence for it to properly evaluate the [36 FR 12448, June 30, 1971, as amended at 38 claim. FR 16868, June 27, 1973; 49 FR 19478, May 8, 1984; 69 FR 52607, Aug. 27, 2004] [45 FR 43720, June 30, 1980] § 912.10 Action on approved claims. § 912.9 Final denial of claim. In any case where the General Coun- (a) Final denial of an administrative sel or the General Counsel’s designee, claim shall be in writing and sent to upon consideration of all the evidence the claimant, his attorney, or legal submitted, finds that compensation is representative by certified or reg- due a claimant, payment will be made istered mail. The notification of final by the U.S. Postal Service and in due

245

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00255 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 912.11 39 CFR Ch. I (7–1–06 Edition)

course a settlement check will be for- to the claim by reason of the same sub- warded to the claimant or his rep- ject matter. resentative. [45 FR 43720, June 30, 1980] [36 FR 12450, June 30, 1971, as amended at 69 FR 52607, Aug. 27, 2004] PART 913—PROCEDURES FOR THE § 912.11 Exclusiveness of remedy. ISSUANCE OF ADMINISTRATIVE SUBPOENAS UNDER 39 U.S.C. The provisions of 28 U.S.C. 2679(b) 3016 provide that the remedy against the United States, as provided by sections Sec. 1346(b) and 2672 of title 28, for injury or 913.1 Subpoena authority. loss or personal injury or death result- 913.2 Service. ing from the operation by an employee 913.3 Enforcement. of the Government of any motor vehi- 913.4 Disclosure. cle while acting within the scope of his AUTHORITY: 39 U.S.C. 204, 401, 404, 3005, 3016. employment is exclusive of any other civil action or proceeding by reason of SOURCE: 65 FR 31266, May 17, 2000, unless otherwise noted. the same subject matter against the employee or his estate whose act or § 913.1 Subpoena authority. omission gave rise to the claim. (a) General. The General Counsel by [45 FR 43720, June 30, 1980] delegation from the Postmaster Gen- eral is responsible for the issuance of § 912.12 Review by legal officers. subpoenas in investigations conducted The authority of the Postal Service under 39 U.S.C. 3005(a), with authority to adjust, determine, compromise, and to delegate that function to a Deputy settle a claim under the provisions of General Counsel. the Federal Tort Claims Act shall, if (b) Production of records. A subpoena the amount of a proposed compromise, issued by the General Counsel may re- settlement, or award exceeds $5,000, be quire the production of any records (in- exercised only after review by a legal cluding computer records, books, pa- officer of the Postal Service. pers, documents, and other tangible things which constitute or contain evi- [45 FR 43720, June 30, 1980, as amended at 69 FR 52607, Aug. 27, 2004] dence) which the General Counsel considers relevant or material to an inves- § 912.13 Attorneys’ fees. tigation. (c) Requirements. No subpoena shall The provisions of 28 U.S.C. 2678 be issued until a specific case (identi- should be consulted in determining the fying the individual or entity that is amount of the attorneys’ fees. the subject) has been opened and an ap- [36 FR 12448, June 30, 1971. Redesignated at 45 propriate supervisory and legal review FR 43720, June 30, 1980] of a subpoena request have been performed. § 912.14 Conclusiveness of remedy. (d) Requests for subpoenas. (1) A re- Payment by the Postal Service of the quest for a subpoena shall be submitted full amount claimed or acceptance by to the Office of the General Counsel by the claimant, his agent, or legal rep- a Postal Inspector, Inspector Attorney, resentative, of any award, compromise, or other Inspector specifically author- or settlement made pursuant to the ized by the Postal Inspection Service provisions of the Federal Tort Claims to submit such a request, after appro- Act, shall be final and conclusive on priate review by an Inspector In Charge the claimant, his agent, or legal rep- or that person’s designee. resentative, and any other person on (2) A request for a subpoena shall whose behalf or for whose benefit the state the specific case, with an indi- claim has been presented, and shall vidual or entity identified as the sub- constitute a complete release of any ject, in which the subpoena is re- claim against the United States and quested. against any employee of the Govern- (3) A request for a subpoena shall ment whose act or omission gave rise contain a specific description of the

246

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00256 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 913.3

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 re- (3) Depositing such copy in the quested subpoena, or require the re- United States mails, by registered or questing individual to provide addi- certified mail, return receipt re- tional information. The General Coun- quested, duly addressed to such part- sel, in his or her discretion, may also nership, corporation, association, or honor requests to amend or supplement entity at its principal office or place of a request for a subpoena. business. (e) Form and issuance. Every sub- (d) Service on natural persons. Serv- poena shall cite 39 U.S.C. 3016 as the ice of any subpoena may be made upon authority under which it is issued, and any natural person by— shall command each person to whom it (1) Delivering a duly executed copy to is directed to produce specified records the person to be served; or at a time and place therein specified. (2) Depositing such copy in the The General Counsel shall sign the sub- United States mails, by registered or poena and enter the name of the indi- certified mail, return receipt re- vidual or entity to whom it is directed. quested, duly addressed to such person at his residence or principal office or § 913.2 Service. place of business. (e) Verified return. A verified return (a) Service within the United States. by the individual serving any such sub- A subpoena issued under this section poena setting forth the manner of such may be served by a person designated service shall be proof of such service. under section 3061 of title 18 at any In the case of service by registered or place within the territorial jurisdiction certified mail, such return shall be ac- of any court of the United States. companied by the return post office re- (b) Foreign service. Any such sub- ceipt of delivery of such subpoena. poena may be served upon any person who is not to be found within the terri- § 913.3 Enforcement. torial jurisdiction of any court of the (a) In general. Whenever any person, United States, in such manner as the partnership, corporation, association, Federal Rules of Civil Procedure de- or entity fails to comply with any sub- scribe for service in a foreign country. poena duly served upon him, the Gen- To the extent that the courts of the eral Counsel may request that the At- United States may assert jurisdiction torney General seek enforcement of the over such person consistent with due subpoena in the district court of the process, the United States District United States for any judicial district Court for the District of Columbia in which such person resides, is found, shall have the same jurisdiction to or transacts business (or in the case of take any action respecting compliance a person outside the territorial juris- with this section by such person that diction of any district court, the dis- such court would have if such person trict court for the District of Colum- were personally within the jurisdiction bia), and serve upon such person a peti- of such court. tion for an order of such court for the (c) Service on business persons. Serv- enforcement of this part. ice of any such subpoena may be made (b) Jurisdiction. Whenever any peti- upon a partnership, corporation, asso- tion is filed in any district court of the ciation, or other legal entity by— United States under this section, such (1) Delivering a duly executed copy court shall have jurisdiction to hear thereof to any partner, executive offi- and determine the matter so presented, cer, managing agent, or general agent and to enter such order or orders as thereof, or to any agent thereof au- may be required to carry into effect thorized by appointment or by law to the provisions of this section. Any final receive service of process on behalf of order entered shall be subject to appeal such partnership, corporation, associa- under section 1291 of title 28, United tion, or entity; States Code. Any disobedience of any

247

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00257 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 913.4 39 CFR Ch. I (7–1–06 Edition)

final order entered under this section properly documented, whether or not by any court may be punished as con- penalty action has been recommended. tempt. A tentative decision of International Network Operations to take penalty § 913.4 Disclosure. action will be set forth in detail the Any documentary material provided facts and reasons upon which the deter- pursuant to any subpoena issued under mination is based. International Net- this section shall be exempt from dis- work Operations will send the ten- closure under section 552 of title 5, tative decision, including notice of the United States Code. irregularities found and the amount of fine or penalty proposed, to the carrier. PART 916 [RESERVED] The carrier may present a written defense to the proposed action within 21 days after receipt of the tentative deci- Rules of Procedure Before the Mail sion. International Network Operations Processing Department will advise the carrier of the final decision. PART 927—RULES OF PROCEDURE (d) Appeal. If the final decision in- RELATING TO FINES, DEDUC- cludes a penalty International Network TIONS, AND DAMAGES Operations will advise the carrier that it may, within 30 days, appeal the ac- Sec tion in writing to the Vice President, 927.1 Noncontractual carriage of inter- Network Operations Management, U.S. national mail by vessel. Postal Service Headquarters and that 927.2 Noncontractual air service for inter- its written appeal should include all national and military mail. facts and arguments upon which the 927.3 Other remedies. carrier relies in support of the appeal. AUTHORITY: 39 U.S.C. 401, 2601 Chap. 56 Sec- If an appeal is not received, Inter- tion 5604; 49 U.S.C. 1357, 1471. national Network Operations will close SOURCE: 67 FR 50353, Aug. 2, 2002, unless the record. When an appeal is taken, otherwise noted. the Vice President, Network Oper- ations Management will review the § 927.1 Noncontractual carriage of complete record the decide the appeal. international mail by vessel. He will advise the carrier of the deci- (a) Report of infraction. Where evision in writing and will take actions dence is found or reported that a car- consistent with that decision. The Vice rier of mail by vessel which has trans- President, Network Operations Man- ported mail pursuant to the provisions agement, may sustain, rescind, or com- of Chapter 4, USPS Purchasing Man- promise a fine or penalty. The decision ual, has unreasonably or unnecessarily of the Vice President, Network Oper- delayed the mails, or committed other ations Management on appeal shall be delinquencies in the transportation of the final decision of the Postal Service. mail, has failed to carry the mail in a The Postal Service may, in its discre- safe and secure manner, or has caused tion, deduct from payment otherwise loss or damage to the mail, the facts due the carrier an amount necessary to will be reported to International Net- satisfy the penalty action taken under work Operations, Headquarters. this section. (b) Review, investigation, recommenda- (e) Details of administration. For fur- tion. International Network Operations ther administrative details, see USPS will investigate the matter, record Purchasing Manual, chapter 4. findings of fact, make a recommendation concerning the need for imposition § 927.2 Noncontractual air service for of fine or penalty with reasons for the international and military mail. recommendation, and will advise the (a) Report of infraction. Each mail carrier of the recommendation. handling irregularity will be reported (c) Penalty action. International Net- in the prescribed format by the cog- work Operations, upon review of the nizant postal official or designated rep- record, may impose a fine or penalty resentative. As soon as possible the re- against a carrier for any irregularity porting authority will ask the local

248

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00258 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 931.1

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 representative will be offered the opportunity to decision of the Postal Service. The comment on any irregularity, and any Postal Service, may, in its discretion, comments will be attached and/or be deduct from pay otherwise due the air made part of the record. The reports on carrier an amount necessary to satisfy which penalty action is recommended the penalty action taken under this will then be processed by International section. Network Operations, Postal Head- (e) Details of administration. For fur- quarters. ther administrative details, forms, and (c) Review, investigation, penalty ac- other implementing materials adapted tion. International Network Operations to the respective modes of transpor- will review the matter and advise the tation, see International Mail Oper- carrier of the recommendations. The ations, Handbook T–5, chapter 5. carrier has 21 days from receipt of notice to dispute the recommended pen- § 927.3 Other remedies. alties. In those instances which the The procedures and other require- carrier has disputed the facts alleged ments of this part apply only where the by the reporting authority, Inter- Postal Service proposes to assess pen- national Network Operations will in- alties, fines, deductions, or damages. vestigate the matter to resolve the dif- This part does not limit other remedies ferences. International Network Oper- available to the Postal Service, includ- ations, upon review of the record, may ing such remedies as summary action impose a fine or penalty against an air to withhold tender of mail to protect carrier for any irregularity properly documented, whether or not penalty the public interest in the event of action has been recommended. Inter- major irregularities such as theft, de- national Network Operations will send liberate loss, damage, abandonment of the decision, including notice of the the mail or service failures by the air irregularities alleged and the amount carrier. of fine or penalty proposed to the carrier. The Postal Service may, in its dis- PART 931—RULES OF PROCEDURE cretion, deduct from payment other- GOVERNING THE COMPROMISE wise due the air carrier an amount nec- OF OBLIGATIONS essary to satisfy the penalty action taken under this section. § 931.1 Compromise of obligations. (d) Appeal. If the final decision includes a penalty, International Net- Any proposition of compromise shall work Operations will advise the carrier be submitted in writing, and the that it may, within 30 days, appeal the amount offered in compromise shall be action in writing to the Vice President, deposited with the Manager, Account- Network Operations Management, ing Division or the appropriate postal Postal Headquarters, and that its writ- data center. If the offer in compromise ten appeal should include all facts and is rejected the amount deposited will

249

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 946 39 CFR Ch. I (7–1–06 Edition)

be returned. The amount of a com- § 946.1 Scope of part. promise offer must be tendered uncon- This part prescribes procedures gov- ditionally for deposit pending the con- erning the disposition of recovered sto- sideration of acceptance. Checks and len mail matter and any other property drafts cannot be accepted as offers in (real, personal, tangible or intangible) compromise when they bear endorse- obtained by the Postal Inspection Serv- ments or instructions to the effect that ice for possible use as evidence after the acceptance of such checks or drafts the need to retain such property no constitutes settlement in full of the longer exists. Property obtained by claim, fine, penalty, or liability in con- Postal Inspectors which appears to nection with which the offer is made, have been loose in the mails but is not except that such checks or drafts may retained for use as evidence, except un- be accepted when they are accom- lawful matter, must be treated in ac- panied with a written waiver of the en- cordance with postal regulations con- dorsements or instructions printed cerning disposition of dead mail (see thereon. Offers in compromise should Domestic Manual (DMM) 159.4). Unlaw- be transmitted or delivered to the of- ful matter must be disposed of in ac- fice or officer of the Postal Service cordance with § 946.3. from whom demand is received for payment of the amount due. § 946.2 Disposition of property of apparent owners. (39 U.S.C. 401) Where an apparent owner of property [26 FR 11662, Dec. 6, 1961. Redesignated at 33 subject to this part is known, the Chief FR 6291, April 25, 1968] Postal Inspector or delegate will mail, by certified mail to the apparent own- Rules of Procedure Before the er’s last known address, written notice Postal Inspection Service describing the property and the procedure for filing a claim for its return PART 946—RULES OF PROCEDURE (see §§ 946.3 and 946.7). Such claims must be filed within 30 days from the RELATING TO THE DISPOSITION date the notice is postmarked. If the OF STOLEN MAIL MATTER AND apparent owner of the property fails to PROPERTY ACQUIRED BY THE file a timely claim, the property is con- POSTAL INSPECTION SERVICE sidered abandoned and must be dis- FOR USE AS EVIDENCE posed of as provided in § 946.6.

Sec. § 946.3 Contraband and property subject to court order. 946.1 Scope of part. 946.2 Disposition of property of apparent Claims submitted with respect to owners. property subject to this part, posses- 946.3 Contraband and property subject to sion of which is unlawful, must be de- court order. nied, in writing, by certified mail and 946.4 Disposition of property of unknown the person submitting the claim must owners. be accorded 45 days from the post- 946.5 Disposition of property having a value marked date to institute judicial proof less than $200. ceedings to challenge the denial. If ju- 946.6 Disposition of abandoned property; ad- dicial proceedings are not instituted ditional period for filing claims. within 45 days, or any extension of 946.7 Submission of claims. time for good cause shown, the contra- 946.8 Determination of claims. band property must be destroyed un- 946.9 Reconsideration of claims. less the Chief Postal Inspector or dele- 946.10 Record retention. gate determines that it should be 946.11 Disposition of property declared abandoned. placed in official use by the Postal In- spection Service. Property subject to AUTHORITY: 5 U.S.C. 552(a); 39 U.S.C. 401(2), this part, the disposition of which is in- (5), (8), 404(a)(7), 2003, 3001. volved in litigation or is subject to an SOURCE: 53 FR 6986, Mar. 4, 1988, unless oth- order of court, must be disposed of as erwise noted. determined by the court.

250

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 946.8

§ 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; (2) Where property has been sold, a Charge who has custody of the prop- person submitting a valid claim under erty; and this section must be reimbursed the (3) A statement inviting any person same amount as the last appraised who believes that he or she is fully en- value of the property prior to the sale titled to the property to submit a of such property. claim for its return with the Postal In- (b) In order to present a valid claim spector in Charge who is identified in under § 946.6(a), the claimant must es- the notice. Such claim must be sub- tablish that he or she had no actual or mitted within 30 days from the date of constructive notice prior to the date first publication of the notice (See the property became abandoned that he § 946.7). or she was entitled to file a claim pur- (b) The notice under § 946.4(a) must be suant to § 946.2 or § 946.4. Publication of published once a week for three con- notice pursuant to § 946.4 provides consecutive weeks in a publication of gen- structive notice unless a claimant can eral circulation within the judicial dis- demonstrate circumstances which rea- trict where the Postal Inspection Serv- sonably precluded his access to the ice took possession of the property. published notice. § 946.5 Disposition of property having [53 FR 6986, Mar. 4, 1988, as amended at 63 FR a value of less than $200. 8126, Feb. 18, 1998] Where the owner of property subject § 946.7 Submission of claims. to this part is unknown and the Chief Postal Inspector or delegate estimates Claims submitted pursuant to this that fair market value of such property part must be submitted on Postal Serv- is $200 or less, title to the property ice Form 1503 which may be obtained vests in the United States Postal Serv- from the Inspector in Charge who has ice, subject to the right of the owner to custody of the property. submit a valid claim as provided in § 946.6. § 946.8 Determination of claims. Upon receipt of a claim under this § 946.6 Disposition of abandoned prop- part, the Postal Inspection Service erty; additional period for filing must conduct an investigation to de- claims. termine the merits of the claim. The (a) Upon expiration of the time pro- results of the investigation must be vided in §§ 946.2 and 946.4(a)(3) for the submitted to the Chief Postal Inspector filing of claims or any extension there- or delegate who must approve or deny of, and without the receipt of a timely the claim by written decision, a copy of claim, the property described in the no- which must be forwarded to the claim- tice is considered abandoned and be- ant by certified mail. If the claim is comes the property of the United approved, the procedures to be followed States Postal Service. However, if the by the claimant to obtain return of the owner satisfies the requirements of property, or its determined value, must

251

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 946.9 39 CFR Ch. I (7–1–06 Edition)

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 § 946.10 Record retention. any proceeding before the Judicial Offi- 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 declared abandoned. taining to eligibility to practice before 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 shared by the Postal Inspection Service member in good standing of the Bar of with federal, state, or local law en- the Supreme Court of the United forcement agencies. Unless the Chief States or of the highest court of any Postal Inspector determines that cash State, District, Territory, Protectorate or the proceeds of the sale of the aban- or Possession of the United States, or doned property are to be shared with of the District of Columbia, and is not other law enforcement agencies, such under any order of any court or execu- cash or proceeds shall be deposited in tive department of one of the foregoing the Postal Service Fund established by governmental entities suspending, en- 39 U.S.C. 2003. The authority to make joining, restraining, disbarring, or oth- this determination may be delegated erwise restricting him in the practice by the Chief Postal Inspector. of law may represent others before the [59 FR 29372, June 7, 1994] U.S. Postal Service. (d) When any person acting in a representative capacity appears in person Rules of Procedure Before the or signs a paper in practice before the Judicial Officer Postal Service his personal appearance or signature shall constitute a rep- PART 951—PROCEDURE GOV- resentation to the Postal Service that ERNING THE ELIGIBILITY OF PER- under the provisions of this part and SONS TO PRACTICE BEFORE THE the law he is authorized and qualified POSTAL SERVICE to represent the particular party in whose behalf he acts. The Postal Serv- Sec. ice does not generally take formal ac- 951.1 Authority for rules. tion or issue any certificate to show 951.2 Eligibility to practice. that an individual is eligible to prac- 951.3 Persons ineligible for admission to tice before it. (See § 951.4.) practice. 951.4 Authorization of appearance may be § 951.3 Persons ineligible for admis- required. sion to practice. 951.5 Complaint of misconduct. 951.6 Censure, suspension or disbarment; (a) No person disbarred from practice grounds. before the Postal Service or in any 951.7 Notice of disbarment; exclusion from other executive department of any of practice. the governmental entities mentioned

252

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00262 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 951.6

in § 951.2(c) will be eligible to practice § 951.6 Censure, suspension or disbar- before the Postal Service until said ment; grounds. order of disbarment shall have been re- (a) The Judicial Officer may censure, voked. suspend or disbar any person against (b) Any person who, subsequently to whom a complaint has been made and being admitted to practice before the upon whom charges have been served Postal Service, is disbarred by any gov- as provided in § 951.5 if he finds that ernmental entity mentioned in such person: § 951.2(c) shall be deemed suspended (1) Does not possess the qualifica- from practice before the Postal Service tions required by § 951.2; during the pendency of said order or disbarment. (2) Has failed to conform to standards of ethical conduct required of practi- (c) No person who has been an attor- tioners at the Bar of any court of ney, officer, clerk, or employee in the which he is a member; Postal Service will be recognized as attorney for prosecuting before it or any (3) Represents, as an associate, an at- office thereof any case or matter which torney who, known to him, solicits he was in anywise connected while he practice by means of runners or other was such attorney, officer, clerk, or unethical methods; employee. (4) By use of his name, personal ap- (d) No person coming within the pro- pearance, or any device, aids or abets hibitions of 18 U.S.C. 203, 205, or 207, an attorney to practice during the pe- will be recognized as attorney before riod of his suspension or disbarment, the Postal Service or any office there- such suspension or disbarment being of. known to him; (5) Displays toward the Judicial Offi- § 951.4 Authorization of appearance cer, Board of Contract Appeals or any may be required. Administrative Law Judge assigned to The Judicial Officer, the head of any the Postal Service, conduct which, if department of the Postal Service or displayed toward any court of any any Administrative Law Judge may re- State, the United States, any of its quire any person to present satisfac- Territories or the District of Columbia, tory evidence of his authority to rep- would be cause for censure, suspension resent the person for whom he appears. or disbarment; or (6) Is otherwise guilty of misconduct § 951.5 Complaint of misconduct. or lacking in character or professional (a) If the head of any department of integrity. the Postal Service has reason to be- (b) Before any person shall be cen- lieve, or if complaint be made to him, sured, suspended or disbarred, he shall that any person is guilty of conduct be afforded an opportunity to be heard subjecting him to suspension or disbar- by the Judicial Officer on the charges ment, the head of such office shall re- made against him. The General Coun- port the same to the Judicial Officer. sel or his designee shall prosecute such (b) Whenever any person submits to cases. the Judicial Officer a complaint (c) In the event the Judicial Officer is against any person who has practiced, unavailable for any reason, he may as- is practicing or holding himself out as sign complaints of misconduct to the entitled to practice before the Postal Associate Judicial Officer, an Adminis- Service, the Judicial Officer may refer trative Law Judge appointed pursuant such complaint to the Chief Inspector to the provisions of the Administrative for a complete investigation and re- Procedure Act, an Administrative port. Judge appointed pursuant to the provi- (c) At any time, the Judicial Officer sions of the Contract Disputes Act of may refer the complaint to the General 1978, or some other disinterested mem- Counsel for the preparation of formal ber of the headquarters staff of the charges to be lodged against and served Postal Service recommended by the upon the person against whom the Deputy Postmaster General, for the de- complaint has been made. terminations required by § 951.5, the

253

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00263 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 951.7 39 CFR Ch. I (7–1–06 Edition)

conduct of the hearings, and the deci- 952.27 Motion for reconsideration. sion to censure, suspend, or debar per- 952.28 Orders. sons as provided herein. 952.29 Modification or revocation of orders. 952.30 Supplemental orders. [36 FR 11562, June 16, 1971, as amended at 51 952.31 Computation of time. FR 16517, May 5, 1986] 952.32 Official record. 952.33 Public information. § 951.7 Notice of disbarment; exclusion 952.34 Ex parte communications. from practice. AUTHORITY: 39 U.S.C. 204, 401, 3005, 3012, Upon the disbarment of any person, 3016. notice thereof will be given to the SOURCE: 36 FR 11563, June 16, 1971, unless heads of the departments of the Postal otherwise noted. Service and to the other Executive De- partments, and thereafter, until other- § 952.1 Authority for rules. wise ordered, such disbarred persons These rules of practice are issued by will not be entitled to practice before the Judicial Officer of the U.S. Postal the Postal Service or any department Service (See § 952.26) pursuant to au- thereof. thority delegated by the Postmaster § 951.8 Ex parte communications. General. The provisions of 5 U.S.C. 551(14), § 952.2 Scope of rules. 556(d) and 557(d) prohibiting ex parte These rules of practice shall be appli- communications are made applicable cable in all formal proceedings before to proceedings under these rules of the Postal Service, 39 U.S.C. 3005, in- practice. cluding such cases instituted under [42 FR 5357, Jan. 28, 1977] prior rules of practice pertaining to these or predecessor statutes, unless PART 952—RULES OF PRACTICE IN timely shown to be prejudicial to the PROCEEDINGS RELATIVE TO respondent. FALSE REPRESENTATION AND [36 FR 11563, June 16, 1971, as amended at 52 LOTTERY ORDERS FR 36763, Oct. 1, 1987]

Sec. § 952.3 Informal dispositions. 952.1 Authority for rules. These rules do not preclude the dis- 952.2 Scope of rules. position of any matter by agreement 952.3 Informal dispositions. between the parties either before or 952.4 Office business hours. after the filing of a complaint when 952.5 Complaints. 952.6 Interim impounding. time, the nature of the proceeding, and 952.7 Notice of answer and hearing. the public interest permit. 952.8 Service. 952.9 Filing documents for the record. § 952.4 Office business hours. 952.10 Answer. The offices of the officials mentioned 952.11 Default. in these rules are located at 2101 Wil- 952.12 Amendment of pleadings. 952.13 Continuances and extensions. son Boulevard, Suite 600, Arlington, VA 952.14 Hearings. 22201–3078, and are open Monday 952.15 Change of place of hearings. through Friday except holidays from 952.16 Appearances. 8:15 a.m. to 4:45 p.m. 952.17 Presiding officers. 952.18 Evidence. [63 FR 66050, Dec. 1, 1998] 952.19 Subpoenas. 952.20 Witness fees. § 952.5 Complaints. 952.21 Depositions, interrogatories, requests When the General Counsel of the for admission of fact and production of Postal Service or his designated rep- documents. resentative believes that a person is 952.22 Transcript. using the mails in a manner requiring 952.23 Proposed findings and conclusions. 952.24 Decisions. formal administrative action under 39 952.25 Exceptions to initial decision or ten- U.S.C. 3005, he shall prepare and file tative decision. with the Recorder a complaint which 952.26 Judicial Officer. names the person involved; states the

254

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00264 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 952.8

name, address and telephone number of issuance of the orders authorized by 39 the attorney representing Complain- U.S.C. 3005(a) and/or the assessment of ant; states the legal authority and ju- civil penalties authorized by 39 U.S.C. risdiction under which the proceeding 3012. Where he concludes that a prima is initiated; states the facts in a man- facie showing has not been made he ner sufficient to enable the person shall dismiss the complaint. Where he named therein to make answer thereto; concludes that a prima facie showing and requests the issuance of an appro- has been made, he shall issue a ten- priate order or orders and/or the assess- tative decision and orders which: set ment of civil penalties. Complainant forth findings of fact and conclusions shall attach to the complaint a copy of of law; direct Respondent to cease and the order or orders requested which desist from engaging in conduct war- may, at any time during the pro- ranting the issuance of an order au- ceedings, be modified. The person thorized by 39 U.S.C. 3005(a); direct named in the complaint shall be known that postal money orders drawn to the as the ‘‘Respondent’’, and the General order of Respondent not be paid for 45 Counsel shall be known as the ‘‘Com- days from date of the tentative deci- plainant.’’ sion; direct that mail addressed to Re- The term ‘‘person’’ (1 U.S.C. 1) shall in- spondent be forwarded to designated fa- clude any name, address, number or cilities and detained for 45 days from other designation under or by use of the date of the tentative decision sub- which the Respondent seeks remit- ject to survey by Respondent and re- tances of money or property through lease of mail unrelated to the matter the mail. complained of; tentatively assess such [48 FR 55126, Dec. 9, 1983, as amended at 65 civil penalties as he considers appro- FR 32027, May 22, 2000; 67 FR 62179, Oct. 4, priate under applicable law; and pro- 2002] vide that unless Respondent presents, within 45 days of the date of the ten- § 952.6 Interim impounding. tative decision, good cause for dis- In preparation for or during the pend- missing the complaint, or modifying ency of a proceeding initiated under 39 the tentative decision and orders, the U.S.C. 3005, mail addressed to a re- tentative decision and orders shall be- spondent may be impounded upon ob- come final. The Judicial Officer may, taining an appropriate order from a upon a showing of good cause made U.S. District Court, as provided in 39 within 45 days of the date of the ten- U.S.C. 3007. tative decision, hold a hearing to deter- § 952.7 Notice of answer and hearing. mine whether the tentative decision and orders should be revoked, modified (a) When a complaint is filed against or allowed to become final. Should a a Respondent whose mailing address is hearing be granted, the Judicial Officer within the United States, the Recorder may modify the tentative decision and shall issue a notice of answer and hear- orders to extend the time during which ing stating the date for filing an an- the payment of postal money orders swer which shall not exceed 15 days payable to Respondent is suspended from the service of the complaint, the and mail addressed to Respondent is time and place of the hearing and a ref- detained. erence to the effect of failure to file an answer or appear at the hearing. (See [44 FR 61959, Oct. 29, 1979, as amended at 48 §§ 952.10 and 952.11.) Whenever prac- FR 55126, Dec. 9, 1983; 65 FR 32027, May 22, ticable, the hearing date shall be with- 2000] in 30 days of the date of the notice. (b) Where a complaint is filed against § 952.8 Service. a Respondent whose mailing address is (a) Where the Respondent’s mailing not within the United States, the Judi- address is within the United States, cial Officer shall review the complaint the Recorder shall cause a notice of an- and any supporting information and swer and hearing and a copy of the determine whether a prima facie show- complaint to be transmitted to the ing has been made that Respondent is postmaster at any office of address of engaged in conduct warranting the Respondent or to the inspector in

255

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00265 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 952.9 39 CFR Ch. I (7–1–06 Edition)

charge of any division in which the Re- (c) Documents shall be dated and spondent is doing business, which shall state the docket number and title of be delivered to the Respondent or his the proceeding. Any pleading or other agent by said postmaster or a super- document required by order of the pre- visory employee of his post office or a siding officer to be filed by a specified postal inspector. A receipt acknowl- date shall be delivered to the Recorder edging delivery of the notice shall be on or before such date. The date of fil- secured from the Respondent or his ing shall be entered thereon by the Re- agent and forwarded to the Recorder, corder. 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. paragraph (a) of this section, the notice may be delivered in the usual manner (b) Any facts alleged in the complaint which are not denied or are ex- as other mail addressed to the respond- pressly admitted in the answer may be ent. A statement, showing the time considered as proved, and no further and place of delivery, signed by the evidence regarding these facts need be postal employee who delivered the no- adduced at the hearing. tice of answer and hearing and complaint shall be forwarded to the Re- (c) The answer shall be signed person- corder and such statement shall con- ally by an individual respondent, or in stitute evidence of service. the case of a partnership by one of the partners, or, in the case of a corpora- (c) Where the only address against tion or association, by an officer there- which Complainant seeks relief is out- of. side the United States, a copy of the (d) The answer shall set forth the Re- complaint, the tentative decision, and spondent’s address and telephone num- a copy of these rules of practice shall ber or the name, address and telephone be sent by registered air mail, return number of its attorney. receipt requested, by the Recorder to the address cited in the complaint. A (e) The answer shall affirmatively written statement by the Recorder not- state whether the respondent will ap- ing the time and place of mailing shall pear in person or by counsel at the be accepted as evidence of service in hearing. the event a signed return receipt is not (f) If the respondent does not desire returned to the Recorder. to appear at the hearing in person or by counsel he may request that the [36 FR 11563, June 16, 1971, as amended at 37 matter be submitted for determination FR 7321, Apr. 13, 1972; 44 FR 61959, Oct. 29, pursuant to paragraph (b) of § 952.11. 1979; 44 FR 65399, Nov. 13, 1979; 63 FR 66050, Dec. 1, 1998] [36 FR 11563, June 16, 1971, as amended at 44 FR 61960, Oct. 29, 1979] § 952.9 Filing documents for the record. § 952.11 Default. (a) Each party shall file with the Re- (a) If the Respondent fails to file an corder pleadings, motions, proposed or- answer within the time specified in the ders and other documents for the notice of answer and hearing, he shall record. The Recorder shall cause copies be deemed in default, and to have to be delivered promptly to other par- waived hearing and further procedural ties to the proceeding and to the pre- steps. The Judicial Officer shall there- siding officer. after issue orders and/or assess civil (b) The parties shall submit four cop- penalties without further notice to the ies of all documents unless otherwise Respondent. ordered by the presiding officer. One (b) If the Respondent files an answer copy shall be signed as the original. but fails to appear at the hearing, the

256

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00266 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 952.17

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 inten- [36 FR 11563, June 16, 1971, as amended at 44 tion to present a defense to the charges 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 Continuances and extensions will not civil penalties sought in the complaint. 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- levard, Suite 600, Arlington, VA 22201– (a) Amendments proposed prior to 3078, or other locations designated by the hearing shall be filed with the Re- the presiding officer. corder. Amendments proposed thereafter shall be filed with the presiding [63 FR 66050, Dec. 1, 1998] officer. § 952.15 Change of place of hearings. (b) By consent of the parties a pleading may be amended at any time. Also, Not later than the date fixed for the a party may move to amend a pleading filing of the answer, a party may file a at any time prior to the close of the request that a hearing be held to re- hearing and, provided that the amend- ceive evidence in his behalf at a place ment is reasonably within the scope of other than that designated for hearing the proceeding initiated by the com- in the notice. He shall support his re- plaint, the presiding officer shall make quest with a statement outlining: (a) The evidence to be offered in such such ruling on the motion as he deems place; to be fair and equitable to the parties. (b) The names and addresses of the (c) When issues not raised by the witnesses who will testify; pleadings but reasonably within the (c) The reasons why such evidence scope of the proceedings initiated by cannot be produced at Arlington, VA. the complaint are tried by express or The presiding officer shall give consid- implied consent of the parties, they eration to the convenience and neces- shall be treated in all respects as if sity of the parties and the relevancy of they had been raised in the pleadings. the evidence to be offered. Such amendments as may be necessary to make the pleadings conform to the [36 FR 11563, June 16, 1971, as amended at 63 FR 66050, Dec. 1, 1998] evidence and to raise such issues shall be allowed at any time upon the mo- § 952.16 Appearances. tion of any party. (a) A respondent may appear and be (d) If a party objects to the introduc- heard in person or by attorney. tion of evidence at the hearing on the (b) An attorney may practice before ground that it is not within the issues the Postal Service in accordance with made by the pleadings, but fails to sat- applicable rules issued by the Judicial isfy the presiding officer that an Officer. See part 951 of this chapter. amendment of the pleadings would (c) When a respondent is represented prejudice him on the merits, the pre- by an attorney, all pleadings and other siding officer may allow the pleadings papers subsequent to the complaint to be amended and may grant a con- shall be mailed to the attorney. tinuance to enable the objecting party (d) A respondent must promptly file a to rebut the evidence presented. notice of change of attorney. (e) The presiding officer may, upon reasonable notice and upon such terms § 952.17 Presiding officers. as are just, permit service of a supple- (a) The presiding officer at any hear- mental pleading setting forth trans- ing shall be an Administrative Law actions, occurrences, or events which Judge qualified in accordance with law have happened since the date of the or the Judicial Officer (39 U.S.C. 204). pleading sought to be supplemented The Chief Administrative Law Judge

257

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00267 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 952.18 39 CFR Ch. I (7–1–06 Edition)

shall assign cases to Administrative which judicial notice or knowledge Law Judges upon rotation so far as may be taken. practicable. The Judicial Officer may, (e) Authoritative writings of the for good cause shown, preside at the re- medical or other sciences, may be ad- ception of evidence in proceedings mitted in evidence but only through where expedited hearings are requested the testimony of expert witnesses or by by either party. stipulation. (b) The presiding officer shall have (f) Lay testimonials will not be re- authority to: ceived in evidence as proof of the effi- (1) Administer oaths and affirma- cacy or quality of any product or thing tions; sold through the mails. (2) Examine witnesses; (g) The written statement of a com- (3) Rule upon offers of proof, admissi- petent witness may be received in evi- bility of evidence and matters of proce- dence provided that such statement is dure; relevant to the issues, that the witness shall testify under oath at the hearing (4) Order any pleading amended upon that the statement is in all respects motion of a party at any time prior to true, and, in the case of expert wit- the close of the hearing; nesses, that the statement correctly (5) Maintain discipline and decorum states his opinion or knowledge con- and exclude from the hearing any per- cerning the matters in question. son acting in an indecorous manner; (h) A party who objects to the admis- (6) Require the filing of briefs or sion of evidence shall make a brief memoranda of law on any matter upon statement of the grounds for the objec- which he is required to rule; tion. Formal exceptions to the rulings (7) Order prehearing conferences for of the presiding officer are unneces- the purpose of the settlement or sim- sary. plification of issues by the parties; (8) Order the proceeding reopened at [36 FR 11563, June 16, 1971, as amended at 44 any time prior to his decision for the FR 61960, Oct. 29, 1979] receipt of additional evidence; § 952.19 Subpoenas. (9) Render an initial decision, which becomes the final Agency decision un- (a) General. Upon written request of less a timely appeal is taken: The Judi- either party filed with the Recorder or cial Officer may issue a tentative or a on his own initiative, the presiding of- final decision; ficer may issue a subpoena requiring: (10) Rule upon applications and re- (1) Testimony at a deposition. The de- quests filed under § 952.19 and § 952.21. posing of a witness in the city or county where the witness resides or is em- [36 FR 11563, June 16, 1971, as amended at 38 ployed or transacts business in person, FR 17216, June 29, 1973; 38 FR 20263, July 30, or at another location convenient for 1973; 44 FR 61960, Oct. 29, 1979; 65 FR 32027, the witness that is specifically deter- May 22, 2000] mined by the presiding officer; (2) Testimony at a hearing. The attend- § 952.18 Evidence. ance of a witness for the purpose of (a) Except as otherwise provided in taking testimony at a hearing; and these rules, the Federal Rules of Evi- (3) Production of records. In addition dence shall govern. However, such rules to paragraphs (a)(1) and (a)(2) of this may be relaxed to the extent that the section, the production by the witness presiding officer deems proper to in- at the deposition or hearing of records sure a fair hearing. The presiding offi- designated in the subpoena. cer shall exclude irrelevant, immate- (b) Voluntary cooperation. Each party rial or repetitious evidence. is expected: (b) Testimony shall be under oath or (1) To cooperate and make available affirmation and witnesses shall be sub- witnesses and evidence under its con- ject to cross-examination. trol as requested by the other party, (c) Agreed statements of fact may be without issuance of a subpoena, and received in evidence. (2) To secure voluntary production of (d) Official notice or knowledge may desired third-party records whenever be taken of the types of matters of possible.

258

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00268 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 952.19

(c) Requests for subpoenas. (1) A re- the testimony of the witness and the quest for a subpoena shall to the extent evidence the witness has produced. practical be filed: (f) Service—(1) In general. The party (i) At the same time a request for requesting issuance of a subpoena shall deposition is filed; or arrange for service. (ii) 15 days before a scheduled hearing (2) Service within the United States. A where the attendance of a witness at a subpoena issued under this section may hearing is sought. be served by a person designated under (2) A request for a subpoena shall 18 U.S.C. 3061 or by a United States state the reasonable scope and general marshal or deputy marshal, or by any relevance to the case of the testimony other person who is not a party and not and of any records sought. less than 18 years of age at any place (3) The presiding officer, in his dis- within the territorial jurisdiction of cretion, may honor requests for sub- any court of the United States. poenas not made within the time limi- (3) Foreign Service. Any such subpoena tations specified in this paragraph. may be served upon any person who is (d) Requests to quash or modify. Upon not to be found within the territorial written request by the person subpoe- jurisdiction of any court of the United naed or by a party, made within 10 days States, in such manner as the Federal after service but in any event not later Rules of Civil Procedure prescribe for than the time specified in the subpoena service in a foreign country. To the ex- for compliance, the presiding officer tent that the courts of the United may: States may assert jurisdiction over (1) Quash or modify the subpoena if it such person consistent with due proc- is unreasonable and oppressive or for ess, the United States District Court other good cause shown, or for the District of Columbia shall have (2) require the person in whose behalf the same jurisdiction to take any ac- the subpoena was issued to advance the tion respecting compliance with this reasonable cost of producing subpoe- section by such person that such court naed records. Where circumstances re- would have if such person were person- quire, the presiding officer may act ally within the jurisdiction of such upon such a request at any time after court. a copy has been served upon the oppos- (4) Service on Business Persons. Service ing party. of any such subpoena may be made (e) Form; issuance. (1) Every subpoena upon a partnership, corporation, asso- shall state the title of the proceeding, ciation, or other legal entity by: shall cite 39 U.S.C. 3016(a)(2) as the au- (i) Delivering a duly executed copy thority under which it is issued, and thereof to any partner, executive offi- shall command each person to whom it cer, managing agent, or general agent is directed to attend and give testi- thereof, or to any agent thereof au- mony, and if appropriate, to produce thorized by appointment or by law to specified records at a time and place receive service of process on behalf of therein specified. In issuing a subpoena such partnership, corporation, associa- to a requesting party, the presiding of- tion, or entity; ficer shall sign the subpoena and may, (ii) Delivering a duly executed copy in his discretion, enter the name of the thereof to the principal office or place witness and otherwise leave it blank. of business of the partnership, corpora- The party to whom the subpoena is tion, association, or entity; or issued shall complete the subpoena be- (iii) Depositing such copy in the fore service. United States mails, by registered or (2) The party at whose instance a certified mail, return receipt re- subpoena is issued shall be responsible quested, duly addressed to such part- for the payment of fees and mileage of nership, corporation, association, or the witness and of the officer who entity at its principal office or place of serves the subpoena. The failure to business. make payment of such charges on de- (5) Service on Natural Persons. Service mand may be deemed by the presiding of any subpoena may be made upon any officer as sufficient ground for striking natural person by:

259

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00269 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 952.20 39 CFR Ch. I (7–1–06 Edition)

(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. fusal to obey a subpoena, the Judicial All objections made at the time of ex- Officer may request the Attorney Gen- amination shall be noted by the deposi- eral to petition the district court for tion officer and the evidence objected any district in which the person receiv- to shall be taken subject to the objec- ing the subpoena resides, is found, or tions. In lieu of participating in the conducts business (or in the case of a oral examination, a party may trans- person outside the territorial jurisdic- mit written interrogatories to the offi- tion of any district court, the district cer, who shall propound them to the court for the District of Columbia) to witness and record the answers ver- issue an appropriate order for the en- batim. Objections to relevancy or ma- forcement of such subpoena. Any fail- teriality of testimony, or to errors and ure to obey such order of the court irregularities occurring at the oral ex- may be punishable as contempt. amination in the manner of taking the [65 FR 32027, May 22, 2000] deposition, in the form of the questions or answers, in the oath or affirmation, § 952.20 Witness fees. or in the conduct of the parties and er- The Postal Service does not pay fees rors of any kind which might be obvi- and expenses for respondent’s witnesses ated, cured or removed if promptly pre- or for depositions requested by resented, are waived unless timely objec- spondent. tion is made at the taking of the deposition. § 952.21 Depositions, interrogatories, (d) At the hearing any part or all of requests for admission of fact and the deposition may be offered in evi- production of documents. dence by any party who was present or (a) Not later than 5 days after the fil- represented at the taking of the deposi- ing of Respondent’s answer, any party tion or who had notice thereof. If the may file application with the Recorder deposition is not offered and received for the taking of testimony by deposi- in evidence, it shall not be considered tion. In support of such application the as a part of the record in the pro- applicant shall submit under oath or ceeding. The admissibility of deposi- affirmation a statement setting out tions or parts thereof shall be governed the reasons why such testimony should by the rules of evidence. be taken by deposition, the time and (e) The party requesting the deposi- the place, and the name and address of tion shall pay all fees required to be the witness whose deposition is desired, paid to witnesses and the deposition of- the subject matter of the testimony of ficer, and shall provide an original and each witness and its relevancy. one copy of the deposition for the offi- (b) If the application is granted, the cial record, and shall serve one copy order for the taking of the deposition upon the opposing party. will specify the time and place thereof, (f) Within the United States or with- the name of the witness, and require in a territory or insular possession,

260

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00270 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 952.22

subject to the dominion of the United The application shall state the cause States, depositions or interrogatories therefor and specifically identify the may be taken or certified before an of- documents or objects and their rel- ficer authorized to administer oaths by evance and materiality to the cause or the laws of the United States or of the causes in issue. The presiding officer place where the examination is held; may order the other party to produce within a foreign country, depositions and permit the inspection and or interrogatories may be taken or cer- photographing of any designated docu- tified before a secretary of an embassy ments or objects not privileged which or legation, consul general, vice consul are reasonably calculated to lead to or consular agent of the United States, the discovery of admissible evidence. If or any other person designated in the the parties cannot themselves agree order for the taking of a deposition. thereon, the presiding officer shall (g) Depositions may also be taken specify such terms and conditions in and submitted on written interrog- making the inspection and taking the atories in substantially the same man- copies and photographs. ner as depositions taken by oral exam- (j) Failure of a party to comply with ination. When a deposition is taken an order pursuant to this rule may re- upon written interrogatories and cross- sult in the presiding officer’s ruling interrogatories, none of the parties ex- that the disobedient party may not cept a witness who is a party shall be support or oppose designated charges present or represented, and no person, or defenses or may not introduce des- other than the witness, a stenographic ignated matters in evidence. The pre- reporter, and the officer shall be siding officer may also infer from the present at the examination of the wit- disobedient party’s failure to comply ness, which fact shall be certified by with the order that the facts to which the officer, who shall propound the in- the order related would, if produced or terrogatories and cross-interrogatories admitted, be adverse to such party’s in- to the witness in their order and reduce terests. The admissibility of matter ad- the testimony to writing in the wit- duced by operation of § 952.21 shall be ness’ own words. For good cause shown governed by § 952.18. or by stipulation of the parties, written interrogatories and cross-interrog- [36 FR 11563, June 16, 1971, as amended at 44 atories propounding questions of fact FR 61960, Oct. 29, 1979; 44 FR 65399, Nov. 13, may be answered by the witness in 1979] writing, without the presence of an officer and without being recorded by a § 952.22 Transcript. stenographic reporter, provided the an- (a) Hearings shall be stenographi- swers are sworn to by the witness be- cally reported by a contract reporter of fore a person authorized to administer the Postal Service under the super- an oath prescribed by paragraph (f). vision of the assigned presiding officer. (h) Not later than 5 days after the fil- Argument upon any matter may be ex- ing of Respondent’s answer, any party cluded from the transcript by order of may serve on the other party a request the presiding officer. A copy of the for the admission of specified facts. In transcript shall be a part of the record the event the party served refuses and the sole official transcript of the timely to respond to the request for ad- proceeding. Copies of the transcript missions, the presiding officer for good shall be supplied to the parties to the cause shown may require the party proceeding by the reporter at rates not served to admit or deny each requested to exceed the maximum rates fixed by fact. The factual propositions set out contract between the Postal Service in the request shall be deemed admit- and the reporter. Copies of parts of the ted upon the failure of a party to re- official record including exhibits ad- spond to the presiding officer’s order mitted into evidence, other than the for admission or denial. transcript, may be obtained by the Re- (i) Not later than 5 days after the fil- spondent from the Recorder upon the ing of Respondent’s answer, either payment of reasonable copying party may file an application for the charges. Items that cannot reasonably production of documents or objects. be photocopied may be photographed

261

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00271 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 952.23 39 CFR Ch. I (7–1–06 Edition)

and furnished in that form to Respond- its receipt. The filing date for proposed ent. findings of fact, conclusions of law, or- (b) Changes in the official transcript ders and supporting reasons shall be may be made only when they involve the same for both parties. If not sub- errors affecting substance and then mitted by such date, or unless exten- only in the manner herein provided. No sion of time for the filing thereof is physical changes shall be made in or granted, they will not be included in upon the official transcript, or copies the record or given consideration. thereof, which have been filed with the (b) Except when presented orally be- record. Within 10 days after the receipt fore the close of the hearing, proposed by any party of a copy of the official findings of fact shall be set forth in se- transcript, or any part thereof, he may rially numbered paragraphs and shall file a motion requesting correction of state with particularity all evidentiary the transcript. Opposing counsel shall, facts in the record with appropriate ci- within such time as may be specified tations to the transcript or exhibits by the presiding officer, notify the pre- supporting the proposed findings. Each siding officer in writing of his concur- proposed conclusion shall be separately rence or disagreement with the restated. quested corrections. Failure to inter- (c) Except when presented orally be- pose timely objection to a proposed fore the close of the hearing, proposed correction shall be considered to be orders shall state the statutory basis of concurrence. Thereafter, the presiding the order and, with respect to orders officer shall by order specify the cor- proposed to be issued pursuant to 39 rections to be made in the transcript. U.S.C. 3005(a)(3), shall be set forth in The presiding officer on his own initia- serially numbered paragraphs stating tive may order corrections to be made with particularity the representations in the transcript with prompt notice to Respondent and its representatives the parties of the proceeding. Any shall cease and desist from using for changes ordered by the presiding offi- the purpose of obtaining money or cer other than by agreement of the par- property through the mail. ties shall be subject to objection and exception. [48 FR 55126, Dec. 9, 1983]

[36 FR 11563, June 16, 1971, as amended at 44 § 952.24 Decisions. FR 61961, Oct. 29, 1979] (a) Initial decision by Administrative § 952.23 Proposed findings and conclu- Law Judge. A written initial decision sions. shall be rendered by an Administrative (a) Each party to a proceeding, ex- Law Judge with all due speed. The ini- cept one who fails to answer the com- tial decision shall include findings and plaint or, having answered, either fails conclusions with the reasons therefor to appear at the hearing or indicates in upon all the material issues of fact or the answer that he does not desire to law presented on the record, and the appear, may, unless at the discretion of appropriate orders or denial thereof. the presiding officer such is not appro- The initial decision shall become the priate, submit proposed findings of final Agency decision unless an appeal fact, conclusions of law, orders and is taken in accordance with § 952.25. supporting reasons either in oral or (b) Tentative or final decision by the written form in the discretion of the Judicial Officer. When the Judicial Offi- presiding officer. The presiding officer cer presides at the hearing he shall may also require parties to any pro- issue a final or a tentative decision. ceeding to submit proposed findings of Such decision shall include findings fact, conclusions of law, orders, and and conclusions with the reasons there- supporting reasons. Unless given oral- for upon all the material issues of fact ly, the date set for filing of proposed or law presented on the record, and the findings of fact, conclusions of law, or- appropriate orders or denial thereof. ders and supporting reasons shall be The tentative decision shall become within 15 days after the delivery of the the final Agency decision unless excep- official transcript to the Recorder who tions are filed in accordance with shall notify both parties of the date of § 952.25.

262

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00272 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 952.26

(c) Oral decisions. The presiding Offi- (2) A concise abstract or statement of cer may render an oral decision (an ini- the case in briefs on appeal or in sup- tial decision by an Administrative Law port of exceptions. Judge, or a tentative or final decision (3) Numbered exceptions to specific by the Judicial Officer) at the close of findings and conclusions of fact, con- the hearing when the nature of the clusions of law, or recommended orders case and the public interest warrant. A of the presiding officer in briefs on ap- party who desires an oral decision shall peal or in support of exceptions. notify the presiding officer and the op- (4) A concise argument clearly set- posing party at least 5 days prior to the ting forth points of fact and of law re- date set for the hearing. Either party lied upon in support of or in opposition may submit proposed findings, conclu- to each exception taken, together with sions, and proposed orders either orally specific references to the parts of the or in writing at the conclusion of the record and the legal or other authori- hearing. ties relied upon. [48 FR 55126, Dec. 9, 1983] (f) Unless permission is granted by the Judicial Officer no brief shall ex- § 952.25 Exceptions to initial decision ceed 50 printed or 100 typewritten pages or tentative decision. double 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 application for good cause shown. swer, may appeal to the Judicial Offi- The Recorder shall promptly notify the cer by filing exceptions in a brief on applicant of the decision of the Judi- appeal within 15 days from the receipt cial Officer on the application. If the of the Administrative Law Judge’s ini- appeal brief or brief in support of ex- tial decision. ceptions is not filed within the time (b) A party in a proceeding presided prescribed, the defaulting party will be over by the Judicial Officer, except one deemed to have abandoned the appeal who has failed to file an answer, may or waived the exceptions, and the ini- file exceptions within 15 days from the tial or tentative decision shall become receipt of the Judicial Officer’s ten- the final Agency decision. tative decision. (c) If an initial or tentative decision [36 FR 11563, June 16, 1971, as amended at 38 is rendered orally by the presiding offi- FR 17216, June 29, 1973; 44 FR 61961, Oct. 29, 1979; 48 FR 55127, Dec. 9, 1983] cer at the close of the hearing, he may then orally give notice to the parties § 952.26 Judicial Officer. participating in the hearing of the time limit within which an appeal must be The Judicial Officer is authorized: (a) filed. To act as presiding officer at hearings, (d) The date for filing the reply to an (b) to render tentative decisions, (c) to appeal brief or to a brief in support of render final Agency decisions, (d) to exceptions to a tentative decision by issue Postal Service orders for the the Judicial Officer is 10 days after the Postmaster General, (e) to refer the receipt thereof. No additional briefs record in any proceeding to the Post- shall be received unless requested by master General or the Deputy Post- the Judicial Officer. master General for final Agency deci- (e) Briefs upon appeal or in support of sion, (f) to remand a case to the pre- exceptions to a tentative decision by siding officer for consideration, (g) to the Judicial Officer and replies thereto revise or amend these rules of practice. shall be filed in triplicate with the Re- In determining appeals from initial de- corder and contain the following mat- cisions or exceptions to tentative deci- ter in the order indicated: sions (see § 952.24 (a) and (b) supra), the (1) A subject index of the matters entire official record will be considered presented, with page references; a table before a final Agency decision is ren- of cases alphabetically arranged; a list dered. Before rendering a final Agency of statutes and texts cited with page decision, the Judicial Officer may references. order the hearing reopened for the

263

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00273 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 952.27 39 CFR Ch. I (7–1–06 Edition)

presentation of additional evidence by Counsel, who shall file a written reply the parties. within 10 days after filing or such other period as the Judicial Officer may fix. [44 FR 61961, Oct. 29, 1979] A copy of the reply shall be sent to the § 952.27 Motion for reconsideration. applicant by the Recorder. Thereafter an order granting or denying such ap- A party may file a motion for recon- plication will be issued by the Judicial sideration of a final agency decision Officer. within 10 days after receiving it or within such longer period as the Judi- [48 FR 55127, Dec. 9, 1983] cial Officer may fix. Each motion for reconsideration shall be accompanied § 952.30 Supplemental orders. by a brief clearly setting forth the When the General Counsel or his des- points of fact and of law relied upon in ignated representative shall have rea- support of said motion. son to believe that a person is evading [36 FR 11563, June 16, 1971, as amended at 38 or attempting to evade the provisions FR 17216, June 29, 1973] of any such orders by conducting the same or a similar enterprise under a § 952.28 Orders. different name or at a different address (a) If an order is issued which pro- he may file a petition with accom- hibits delivery of mail to a respondent panying evidence setting forth the al- it shall be incorporated in the record of leged evasion or attempted evasion and the proceeding. The Recorder shall requesting the issuance of a supple- cause notice of the order to be pub- mental order or orders against the lished in the Postal Bulletin and cause name or names allegedly used. Notice the order to be transmitted to such shall then be given by the Recorder to postmasters and other officers and em- the person that the order has been re- ployees of the Postal Service as may be quested and that an answer may be required to place the order into effect. filed within 10 days of the notice. The (b) If an order is issued which re- Judicial Officer, for good cause shown, quires the Respondent to cease and de- may hold a hearing to consider the sist from using certain representations issues in controversy, and shall, in any for the purpose of obtaining money or event, render a final decision granting property through the mail, it shall be or denying the supplemental order or incorporated in the record of the pro- orders. ceeding and a copy thereof shall be [48 FR 55127, Dec. 9, 1983] served upon the Respondent or his agent by certified mail or by personal § 952.31 Computation of time. service, or if no person can be found to accept service, service shall be accom- A designated period of time under plished by ordinary mail to the last these rules excludes the day the period known address of Respondent or his begins, and includes the last day of the agent. If service is not accomplished by period unless the last day is a Satur- certified mail, a statement, showing day, Sunday, or legal holiday, in which the time and place of delivery, signed event the period runs until the close of by the postal employee who delivered business on the next business day. the order, shall be forwarded to the Re- corder. § 952.32 Official record. The transcript of testimony together [36 FR 11563, June 16, 1971, as amended at 38 FR 17216, June 29, 1973; 44 FR 61961, Oct. 29, with all pleadings, orders, exhibits, 1979; 48 FR 55127, Dec. 9, 1983] briefs and other documents filed in the proceeding shall constitute the official § 952.29 Modification or revocation of record of the proceeding. orders. A party against whom an order or or- § 952.33 Public Information. ders have been issued may file an appli- The Librarian of the Postal Service cation for modification or revocation maintains for public inspection in the thereof. The Recorder shall transmit a Library copies of all initial, tentative copy of the application to the General and final Agency decisions and orders.

264

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00274 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 953.4

The Recorder maintains the complete (b) Describe or be accompanied by a official record of every proceeding. copy of the determination or ruling being appealed; [48 FR 55127, Dec. 9, 1983, as amended at 67 FR 62179, Oct. 4, 2002] (c) Describe the character or content of the matter the appellant wishes to § 952.34 Ex parte communications. have carried and delivered by the U.S. The provisions of 5 U.S.C. 551(14), Postal Service; 556(d) and 557(d) prohibiting ex parte (d) Request review of the determina- communications are made applicable tion or ruling, specifying each and to proceedings under these rules of every reason why the appellant be- practice. lieves the determination or ruling should be reversed; [42 FR 5357, Jan. 28, 1977] (e) Indicate whether the appellant desires to have an oral hearing or, in- PART 953—RULES OF PRACTICE IN stead, to have the case decided solely PROCEEDINGS RELATIVE TO on the basis of the written record (i.e., MAILABILITY the appeal, the General Counsel’s reply, and any documents submitted by Sec. the parties pursuant to an order of the 953.1 Authority for rules. presiding officer); and 953.2 Initiation. (f) Bear the signature, typed or print- 953.3 Appeal. ed name, title, business address, and 953.4 Service of notice; Reply; Motion for telephone number of any attorney at summary judgment. law representing the appellant in 953.5 Hearings. 953.6 Compromise and informal dispositions. bringing the appeal, and of each indi- 953.7 Default; Appearances. vidual appellant or, if the appellant is 953.8 Location of hearing. a partnership, corporation, limited li- 953.9 Change of place of hearing. ability company, or unincorporated as- 953.10 Presiding officers. sociation, of the managing partner, 953.11 Proposed findings of fact and conclu- chief executive officer, chief operating sions of law. 953.12 Initial decision. officer, or other officer authorized to 953.13 Appeal from initial decision. bind the organization. 953.14 Final Agency decision. 953.15 Expedition. § 953.4 Service of notice; Reply; Motion 953.16 Disposition. for summary judgment. 953.17 Ex parte communications. (a) Service of notice. (1) Upon receiving AUTHORITY: 39 U.S.C. 204, 401. the appeal, the Recorder shall issue a notice specifying that the Postal Serv- SOURCE: 59 FR 31538, June 20, 1994, unless otherwise noted. ice General Counsel’s reply shall be filed within 15 days of receipt of the no- § 953.1 Authority for rules. tice; and the time and place of the These rules of practice are issued by hearing (if one was requested). the Judicial Officer of the U.S. Postal (2) The Recorder shall promptly serve Service pursuant to authority dele- this notice on the parties as follows: gated by the Postmaster General. (i) The notice, with a copy of the appeal, shall be sent to the General Coun- § 953.2 Initiation. sel at Postal Service headquarters. (ii) When the appellant’s address is Mailability proceedings are initiated within the United States, the notice, upon the filing of a written appeal with with a copy of the appeal, shall be sent the Recorder, Judicial Officer Depart- to the postmaster at the office that de- ment, U.S. Postal Service, 2101 Wilson livers mail to the appellant’s address. Boulevard, Suite 600, Arlington, VA The postmaster shall be instructed 22201–3078. that, acting personally or through a [63 FR 66050, Dec. 1, 1998] supervisory employee or a postal inspector, he or she is to serve these doc- § 953.3 Appeal. uments on the appellant. If the appel- The appeal shall: lant cannot be found within 3 days, the (a) Identify the appellant; postmaster shall send these documents

265

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00275 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 953.5 39 CFR Ch. I (7–1–06 Edition)

to the appellant by ordinary mail and Rulings on such objections shall be a forward a statement to the Recorder part of the transcript. that is signed by the delivering em- (c) Formal exceptions to the rulings ployee and that specifies the time and of the presiding officer made during place of delivery. the course of the hearing are unneces- (iii) When the appellant’s address is sary. For all purposes for which an ex- outside the United States, the notice, ception otherwise would be taken, it is with a copy of the appeal, shall be sent sufficient that a party, when the ruling to the appellant by registered airmail, of the presiding officer is made or return receipt requested. A written sought, makes known the action he de- statement by the Recorder, noting the sires the presiding officer to take or his time and place of mailing, shall be ac- objection to an action taken, and his cepted as proof of service in the event grounds therefor. a signed and dated return receipt is not received. § 953.6 Compromise and informal dis- (b) Reply. The General Counsel shall positions. file a written reply, in triplicate, with Either party may request the other the Recorder, within the aforemen- to consider informal disposition of any tioned 15-day period or any extension question of mailability, and the sched- granted by the presiding officer for uled hearing date may be postponed by good cause shown. If the General Coun- the presiding officer for such period of sel’s reply fails to address any allega- time as may be necessary to accommo- tion in the appeal, that allegation shall date settlement discussions between be deemed admitted. the parties. (c) Motion for summary judgment. Upon motion of either the General § 953.7 Default; Appearances. Counsel or the appellant, or on the pre- If a timely reply to the appeal is not siding officer’s own initiative, the pre- filed, the presiding officer shall refer siding officer may find that the appeal the appeal to the Judicial Officer, who and answer present no genuine and ma- may find that the General Counsel is in terial issues of fact requiring an evi- default. Whenever the General Counsel dentiary hearing, and thereupon may has been deemed to be in default, the render an initial decision upholding or Judicial Officer shall take whatever ac- reversing the determination or ruling. tion on the appeal he deems appro- The initial decision shall become the priate. If an oral evidentiary hearing is final Agency decision if a timely ap- to be held, the appellant may appear at peal is not taken. the hearing in person or by counsel. If either party fails to appear at the hear- § 953.5 Hearings. ing, the presiding officer shall receive (a) In general, admissibility of evi- the evidence of the party appearing and dence at hearings conducted under this render a decision. part hinges on relevancy and materiality. However, relevant evidence may § 953.8 Location of hearing. be excluded if its probative value is Unless otherwise ordered by the pre- substantially outweighed by the danger siding officer, the hearing shall be held of unfair prejudice, or by consider- at 2101 Wilson Boulevard, Suite 600, Ar- ations of undue delay, or by needless lington, VA 22201–3078, on the date set presentation of cumulative evidence. in the notice. Testimony shall be given under oath or affirmation, and witnesses are subject [63 FR 66050, Dec. 1, 1998] to cross-examination. Stipulations of fact are encouraged and may be re- § 953.9 Change of place of hearing. ceived in evidence. (a) Not later than the date fixed for (b) Objections to the admission or ex- the filing of the reply, a party may file clusion of evidence shall be in short a motion that the scheduled hearing be form, stating the grounds of objections held at a place other than that des- relied upon. The transcript shall not ignated in the notice. The motion shall include argument or debate thereon ex- include a supporting statement out- cept as ordered by the presiding officer. lining:

266

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00276 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 953.17

(1) The evidence to be offered in such within 5 days after the receipt of the place; appeal brief by the opposing party. (2) The names and addresses of the witnesses who will testify; and § 953.14 Final Agency decision. (3) The reasons why such evidence The Judicial Officer shall render a cannot be presented in Arlington, VA. final Agency decision. The decision (b) In ruling on the motion, the pre- shall be served upon the parties and siding officer shall consider the con- the postal official having custody of venience and necessity of the parties any mail detained pursuant to the de- and the relevancy of the evidence to be termination or ruling. offered. § 953.15 Expedition. [59 FR 31538, June 20, 1994, as amended at 63 FR 66050, Dec. 1, 1998] For the purpose of further expedition, either party may move to have § 953.10 Presiding officers. the hearing held at an earlier date than The presiding officer at any hearing that specified in the notice. Either shall be an Administrative Law Judge party may also move to have the ini- qualified in accordance with law (5 tial decision (if an Administrative Law U.S.C. 3105) and assigned by the Judi- Judge or the Judicial Officer is pre- cial Officer (39 U.S.C. 204), or the Judi- siding) or the final Agency decision (if cial Officer, may at his discretion, the Judicial Officer is presiding) ren- elect to preside at the reception of evi- dered orally at the conclusion of the dence. The Judicial Officer shall assign hearing. The presiding officer may cases to Administrative Law Judges grant or deny any such motion. The upon rotation if practicable. parties may, with the concurrence of the Judicial Officer, agree to waive any § 953.11 Proposed findings of fact and of the procedures established in these conclusions of law. rules. Proposed findings of fact and conclusions of law shall be submitted orally § 953.16 Disposition. or in writing at the conclusion of the Mail matter found to be nonmailable hearing, or otherwise, as ordered by shall be held at the post office where the presiding officer. detained for a period of 15 days from the date of the Postal Service decision, § 953.12 Initial decision. unless that period is extended by the Unless given orally at the conclusion Judicial Officer. During this holding of the hearing, the Administrative Law period, the appellant may apply for the Judge shall render an initial decision withdrawal of the matter. If any such as expeditiously as practicable after application is made, the General Coun- the conclusion of the hearing and the sel shall be given notice and the oppor- receipt of the proposed findings and tunity to oppose the application. Upon conclusions, if any. The initial decision the expiration of the holding period shall become the decision of the Postal with no application having been made, Service if an appeal is not perfected. the Judicial Officer shall order that the When the Judicial Officer presides at matter be disposed of in accordance the hearing, his powers shall include with 39 U.S.C. 3001(b). If a timely appli- those of an Administrative Law Judge, cation is made, the Judicial Officer but the Judicial Officer may render ei- shall consider the application and any ther an initial or final decision. Excep- reasons advanced by the General Coun- tions may be filed to an initial decision sel for denying the application. The Ju- rendered by the Judicial Officer in ac- dicial Officer shall thereafter order ei- cordance with § 953.13. ther that the matter be returned to the applicant or that it be disposed of in § 953.13 Appeal from initial decision. accordance with 39 U.S.C. 3001(b). Either party may file exceptions in a brief on appeal to the Judicial Officer § 953.17 Ex parte communications. within 5 days after receipt of the ini- The provisions of 5 U.S.C. 551(14), tial decision unless additional time is 556(d), and 557(d) prohibiting ex parte granted. A reply brief may be filed communications are made applicable

267

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00277 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 Pt. 954 39 CFR Ch. I (7–1–06 Edition)

to proceedings under these rules of § 954.3 Informal dispositions. practice. These rules do not preclude the informal dispositions of Periodicals mailing PART 954—RULES OF PRACTICE IN privilege matters before or after insti- PROCEEDINGS RELATIVE TO THE tution of proceedings. DENIAL, SUSPENSION, OR REV- [36 FR 11567, June 16, 1971, as amended at 62 OCATION OF PERIODICALS MAIL FR 66998, Dec. 23, 1997] PRIVILEGES § 954.4 Office business hours. Sec. The offices of the officials mentioned 954.1 Authority for rules. in these rules are located at 2101 Wil- 954.2 Scope of rules. 954.3 Informal dispositions. son Boulevard, Suite 600, Arlington, VA 954.4 Office business hours. 22201–3078 and are open Monday 954.5 Application. through Friday from 8:15 a.m. to 4:45 954.6 Revocation or suspension. p.m. 954.7 Failure to appeal proposed action. [63 FR 66050, Dec. 1, 1998] 954.8 Pleading. 954.9 Default. § 954.5 Application. 954.10 Intervention or other participation. 954.11 Hearings. A publisher may file an application 954.12 Change of place of hearing. for Periodicals mailing privileges. (See 954.13 Appearances. § E213 of the Domestic Mail Manual.) 954.14 Presiding officers. An authorized administrative official 954.15 Judicial Officer. of the Postal Service (hereinafter 954.16 Procedure. called ‘‘the authorized official’’) rules 954.17 Transcript. upon all applications. If he or she de- 954.18 Proposed findings and conclusions. nies the application he or she shall no- 954.19 Initial decision. tify the publisher specifying the rea- 954.20 Appeals. sons for his or her denial and attaching 954.21 Motion for reconsideration. a copy of these rules. Before taking ac- 954.22 Continuances. tion on an application, the authorized 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 SOURCE: 36 FR 11567, June 16, 1971, unless the authorized official to deny the ap- otherwise noted. plication as incomplete or, on its face, 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 [36 FR 11567, June 16, 1971, as amended at 62 FR 17217, June 29, 1973; 62 FR 66998, Dec. 23, FR 66998, Dec. 23, 1997] 1997]

268

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00278 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 954.11

§ 954.7 Failure to appeal proposed ac- at any time prior to the close of the tion. hearing. If the presiding officer deems A ruling of the authorized official it appropriate to permit the amend- shall become final upon failure of the ment of a pleading, he or she may im- publisher to file a petition in accord- pose such conditions, by way of con- ance with the requirements of § 954.8(b). tinuance of the hearing date or otherwise, as he or she considers necessary [36 FR 11567, June 16, 1971, as amended at 38 to assure a fair hearing. FR 17217, June 29, 1973] [36 FR 11567, June 16, 1971, as amended at 38 § 954.8 Pleading. FR 17217, June 29, 1973; 62 FR 66998, Dec. 23, 1997] (a) Place of filing. Parties shall file an original and three copies of all docu- § 954.9 Default. ments of record, unless otherwise or- If a publisher fails to appear at the dered by the presiding officer with the hearing, the presiding officer may: (a) Recorder of the Postal Service, who Dismiss the petition; (b) order the peti- shall cause copies to be delivered to tioner to show cause within 30 days the other parties and to the presiding from the date of the order why an order officer. Service is ordinarily made on of dismissal should not be entered, and the private parties by certified mail thereafter enter such order as the pre- and delivery is deemed complete when siding officer deems to be appropriate. a document or notice of its arrival is If the petition is dismissed by order of 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 official. The petition shall state the rea- To intervene or otherwise participate sons why the publisher (designated in a proceeding, any person may file a ‘‘Petitioner’’ in the proceeding) be- timely application in accordance with lieves the ruling of the authorized offi- § 954.8(a). A timely application is one cial is erroneous and shall provide the which will not unduly delay the pro- address at which documents may be ceeding. The application shall state served on the Petitioner. The petition whom the potential intervenor rep- shall also allege facts showing compli- resents, his or her interest, the extent ance with each provision of law or reg- to which he or she desires to partici- ulation on which the publisher’s claim pate, and the evidence he or she seeks to Periodicals mail privileges is based. to introduce. The presiding officer The publisher shall attach to his or her shall fix the time within which the par- petition a copy of the letter of the au- ties shall answer the application. The thorized official denying, suspending or presiding officer shall grant or deny revoking 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 [31 FR 5198, Mar. 31, 1966. Redesignated at 31 (designated the ‘‘Respondent’’ in the FR 16270, Dec. 20, 1966; 62 FR 66998, Dec. 23, proceeding) shall answer the petition 1997] within 15 days after filing and admit or deny each allegation of the petition. § 954.11 Hearings. (e) Amendment. An amendment of a Hearings are held at 2101 Wilson Bou- pleading may be offered by any party levard, Suite 600, Arlington, VA 22201–

269

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00279 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 954.12 39 CFR Ch. I (7–1–06 Edition)

3078, or other locations designated by hearing. Such assignments shall be the presiding officer. made, so far as practical, in rotation. (b) The presiding officer shall have [63 FR 66050, Dec. 1, 1998] authority to: § 954.12 Change of place of hearing. (1) Administer oaths and affirmations; Not later than the date fixed for the (2) Examine witnesses; filing of the answer, a party may file a (3) Rule upon matters of evidence and request that a hearing be held to re- procedure; ceive evidence in his or her behalf at a (4) Order any pleading amended upon place other than that designated for motion of a party at any time prior to hearing in the notice. He or she shall the close of the hearing; support his request with a statement (5) Maintain discipline and decorum setting forth: and exclude from the hearing any per- (a) The evidence to be offered in such son acting in an indecorous manner; place; (6) Require the filing of briefs on any (b) The names and addresses of the matter upon which he or she is re- witnesses who will testify; quired to rule; (c) The reasons why such evidence (7) Order prehearing conferences for cannot be produced at Arlington, VA. the settlement or simplification of The presiding officer shall give consid- issues by consent of the parties; eration to the convenience and neces- (8) Order the proceeding reopened at sity of the parties and the relevancy of any time prior to his or her decision the evidence to be offered. for the receipt of additional evidence; [36 FR 11567, June 16, 1971, as amended at 62 (9) Render an initial decision. FR 66998, Dec. 23, 1997; 63 FR 66050, Dec. 1, 1998] [36 FR 11567, June 16, 1971, as amended at 38 FR 17217, June 29, 1973; 38 FR 20263, July 30, § 954.13 Appearances. 1973; 62 FR 66998, Dec. 23, 1997] (a) The General Counsel of the Postal § 954.15 Judicial Officer. Service or a member of his or her staff The Judicial Officer is authorized (a) designated by him or her shall rep- to act as presiding officer at hearings resent the authorized official. and (b) to render a final Postal Service (b) A publisher or intervenor may ap- Decision for the Postmaster General. pear and be heard in person or by at- On appeal from an Initial Decision of torney. Attorneys may practice before an Administrative Law Judge, the Ju- the Postal Service in accordance with dicial Officer will consider the entire applicable rules issued by the Judicial record including the initial decision Officer. See part 951 of this chapter. and the exceptions to that decision. Be- (c) An attorney representing a pub- fore any final agency decision has been lisher or intervenor shall file a written rendered, the Judicial Officer may authorization from the publisher or in- order the hearing reopened for the pre- tervenor before he or she may partici- siding officer to take additional evi- pate in the proceeding. The publisher dence. or intervenor must promptly file a notice of change of attorneys. § 954.16 Procedure. (d) When a publisher or intervenor is (a) Evidence. The general rules of evi- represented by an authorized attorney dence governing civil proceedings in all subsequent pleadings shall be served matters not involving trial by jury in upon the attorney. the courts of the United States apply. [36 FR 11567, June 16, 1971, as amended at 62 The rules may be relaxed to the extent FR 66998, Dec. 23, 1997] that the presiding officer may deem proper to insure an adequate and fair § 954.14 Presiding officers. hearing. The presiding officer may ex- (a) The Chief Administrative Law clude irrelevant or repetitious evi- Judge shall assign each case to an Ad- dence. ministrative Law Judge qualified in ac- (b) Subpoenas. The Postal Service is cordance with law to preside over the not authorized to issue subpoenas.

270

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00280 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 954.17

(c) Fees. The Postal Service does not promptly presented, are waived unless pay fees and expenses for witnesses of, timely objection is made at the taking or depositions requested by, the pub- of the deposition. lisher or intervenor. (4) At the hearing any part or all of (d) Depositions. Depositions may be the deposition may be offered in evi- taken as follows: dence by any party who was present or (1) Not later than 5 days after the fil- represented at the taking of the deposi- ing of the authorized officials’s answer, tion or who had notice thereof. If the any party may file application with the deposition is not offered and received presiding officer for the taking of testi- in evidence, it shall not be considered mony by deposition. In support of such as a part of the record in the pro- application the applicant shall submit ceeding. The admissibility of deposi- under oath or affirmation a statement tions or parts thereof shall be governed setting out the reasons why such testi- by the rules of evidence. mony should be taken by deposition, (5) The party requesting the deposi- the time and the place, and the name tion shall pay all fees required to be and address of the witness whose depo- paid to witnesses and the deposition of- sition is desired, the subject matter of ficer, and shall provide an original and 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 [36 FR 11567, June 16, 1971, as amended at 62 at the oral examination in the manner FR 66998, Dec. 23, 1997] of taking the deposition, in the form of the questions or answers, in the oath or § 954.17 Transcript. affirmation, or in the conduct of the (a) A contract reporter of the Postal parties and errors of any kind which Service under the supervision of the might be obviated, cured or removed if presiding officer shall report hearings.

271

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00281 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 954.18 39 CFR Ch. I (7–1–06 Edition)

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

272

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00282 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service Pt. 955

officer and the reasons for the excep- to proceedings under these rules of tions. practice. (d) Reply briefs shall contain para- [42 FR 5358, Jan. 28, 1977] graphs (c) (1), (2), and (3) of this section and the reasons for opposing the excep- PART 955—RULES OF PRACTICE BE- tions. FORE THE BOARD OF CONTRACT [36 FR 11567, June 16, 1971, as amended at 38 APPEALS FR 17217, June 29, 1973] Sec. § 954.21 Motion for reconsideration. 955.1 Jurisdiction, procedure, representa- Within 10 days from the date thereof, tion of parties. or such longer period as may be fixed PRELIMINARY PROCEDURES by the Judicial Officer, either party 955.2 Appeals, how taken. may file a motion for reconsideration 955.3 Notice of appeal, contents of. of a final Agency decision. 955.4 Forwarding of appeals. 955.5 Preparation, contents, organization, § 954.22 Continuances. forwarding, and status of appeal file. For good cause shown, continuances 955.6 Dismissal for lack of jurisdiction. 955.7 Pleadings. or extensions may be granted by the 955.8 Amendments of pleadings or record. presiding officer. Similar action may 955.9 Hearing election. be taken by the Judicial Officer when 955.10 Prehearing briefs. the proceeding is on appeal. 955.11 Prehearing or presubmission conference. § 954.23 Computation of time. 955.12 Submission without a hearing. 955.13 Optional small claims (expedited) and A designated period of time under accelerated procedures. these rules excludes the day the period 955.14 Settling the record. begins, and includes the last day of the 955.15 Discovery—depositions. period unless the last day is a Satur- 955.16 Interrogatories to parties, admission day, Sunday, or holiday, in which of facts, and production and inspection of documents. event the period runs until the close of 955.17 Service of papers. business on the next working day. Hearings § 954.24 Official record. 955.18 Where and when held. The pleadings, orders, exhibits, tran- 955.19 Notice of hearings. script of testimony, briefs, decisions 955.20 Unexcused absence of a party. and other documents filed in the pro- 955.21 Nature of hearings. 955.22 Examination of witnesses. ceeding constitute the official record of 955.23 Copies of papers. the proceeding. 955.24 Posthearing briefs. 955.25 Transcript of proceedings. § 954.25 Public information. 955.26 Withdrawal of exhibits.

The Librarian of the Postal Service Representation maintains for public inspection in the Library copies of all initial and final 955.27 The appellant. 955.28 The respondent. Agency decisions. The Recorder of the Postal Service maintains a complete Decisions official record of every proceeding. A 955.29 Decisions. person may examine a record upon authorization by the Judicial Officer. Motion for Reconsideration 955.30 Motion for reconsideration. [36 FR 11567, June 16, 1971, as amended at 62 FR 66998, Dec. 23, 1997] Dismissals § 954.26 Ex parte communications. 955.31 Dismissal without prejudice. 955.32 Dismissal for failure to prosecute. The provisions of 5 U.S.C. 551(14), 556(d) and 557(d) prohibiting ex parte Ex Parte Communications communications are made applicable 955.33 Ex parte communications.

273

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00283 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 955.1 39 CFR Ch. I (7–1–06 Edition)

Sanctions findings of fact with respect to such a 955.34 Sanctions. claim without expressing an opinion on the question of liability. Effective Date and Applicability (d) Board of contract appeals proce- 955.35 Subpoenas. dure—(1) Rules. Appeals referred to the 955.36 Effective dates and applicability. Board are handled in accordance with AUTHORITY: 39 U.S.C. 204, 401; 41 U.S.C. 607, the rules of the Board. 608. (2) Administration and interpretation of SOURCE: 41 FR 7408, Feb. 18, 1976, unless rules. Emphasis is placed upon the otherwise noted. sound administration of these rules in specific cases, because it is impracti- § 955.1 Jurisdiction, procedure, rep- cable to articulate a rule to fit every resentation of parties. possible circumstance which may be (a) Jurisdiction for considering appeals. encountered. These rules will be inter- The U.S. Postal Service Board of Con- preted so as to secure a just and inex- tract Appeals (Board) shall consider pensive determination of appeals with- and determine appeals from decisions out unnecessary delay. of contracting officers arising under contracts which contain provisions re- (3) Preliminary procedures. Prelimi- quiring the determination of appeals nary procedures are available to en- by the Postmaster General or his duly courage full disclosure of relevant and authorized representative or board. In material facts, and to discourage un- addition the Board shall have jurisdic- warranted surprise. tion over other matters assigned to it (4) Time, computation, and extensions. by the Postmaster General. The Board (i) All time limitations specified for has authority to determine appeals various procedural actions are com- falling within the scope of its jurisdic- puted as maximums, and are not to be tion as fully and finally as might the fully exhausted if the action described Postmaster General himself. can be accomplished in a lesser period. (b) Organization and location of the These time limitations are similarly Board. (1) The Board is located in Ar- eligible for extension in appropriate lington, VA and its mailing address is circumstances, on good cause shown. 2101 Wilson Boulevard, Suite 600, Ar- (ii) Except as otherwise provided by lington, VA 22201–3078. law, in computing any period of time (2) The Board consists of the Judicial prescribed by these rules or by any Officer as Chairman, the Associate Ju- order of the Board, the day of the event dicial Officer as Vice Chairman, and from which the designated period of the Administrative Judges of the Post- time begins to run shall not be in- al Service. All members of the Board cluded, but the last day of the period shall be attorneys at law duly licensed shall be included unless it is a Satur- by any state, commonwealth, terri- day, Sunday, or a legal holiday in tory, or the District of Columbia. In which event the period shall run to the general, the appeals are assigned to a end of the next business day. panel of at least three members of the (iii) Requests for extensions of time Board. The decision of a majority of the panel constitutes the decision of from either party shall be made in the Board. writing stating good cause therefor. (c) Decisions on questions of law. When (5) Place of filings. Unless the Board an appeal is taken pursuant to a Dis- otherwise directs, all notices of appeal, putes Clause in a contract which limits pleadings and other communications appeals to disputes concerning ques- shall be filed with the Recorder of the tions of fact, the Board may, in its dis- Board at its office at 2101 Wilson Boule- cretion, hear, consider, and decide all vard, Suite 600, Arlington, VA 22201– questions of law necessary for the com- 3078. plete adjudication of the issue. In the (e) Representation of parties. Whenever consideration of an appeal, should it reference is made to contractor, appel- appear that a claim is involved which lant, contracting officer, respondent is not cognizable under the terms of and parties, this shall include respec- the contract, the Board may make tive counsel for the parties, as soon as

274

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00284 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 955.5

appropriate notices of appearance have § 955.5 Preparation, contents, organi- been filed with the Board. zation, forwarding, and status of appeal file. [41 FR 7408, Feb. 18, 1976, as amended at 43 FR 60275, Dec. 27, 1978; 60 FR 57938, Nov. 24, (a) Duties of contracting officer. Within 1995; 63 FR 66050, Dec. 1, 1998] 30 days of receipt of an appeal, or advice that an appeal has been filed, the PRELIMINARY PROCEDURES contracting officer shall assemble and transmit to the Board through Postal § 955.2 Appeals, how taken. Service counsel an appeal file consisting of all documents pertinent to Notice of an appeal must be in writ- the appeal, including: ing, and the original, together with (1) The decision and findings of fact two copies, may be filed with the con- from which appeal is taken; tracting officer from whose decision (2) The contract including specifica- the appeal is taken. The notice of ap- tions and pertinent amendments, plans peal must be mailed or otherwise filed and drawings; within the time specified therefor in (3) All correspondence between the the contract or allowed by applicable parties pertinent to the appeal, includ- provision of directive or law. ing the letter or letters of claim in response to which decision was issued; § 955.3 Notice of appeal, contents of. (4) Transcripts of any testimony A notice of appeal should indicate taken during the course of proceedings, that an appeal is thereby intended, and and affidavits or statements of any should identify the contract (by num- witnesses on the matter in dispute made prior to the filing of the notice of ber), the department and agency or bu- appeal with the Board; and reau cognizant of the dispute, and the (5) Any additional information con- decision from which the appeal is sidered pertinent. taken. The notice of appeal should be Within the same time above specified signed personally by the appellant (the Postal Service counsel shall furnish contractor making the appeal), or by the appellant a copy of each document an officer of the appellant corporation he transmits to the Board, except those or member of the appellant firm, or by stated in paragraph (a)(2) of this sec- the contractor’s duly authorized rep- tion, as to which a list furnished appel- resentative or attorney. The complaint lant indicating specific contractual referred to in § 955.7 may be filed with documents transmitted will suffice, the notice of appeal, or the appellant and those stated in paragraph (d) of may designate the notice of appeal as a this section. complaint, if it otherwise fulfills the (b) Duties of the appellant. Within 30 requirements of a complaint. days after receipt of a copy of the appeal file assembled by the contracting § 955.4 Forwarding of appeals. officer, the appellant shall supplement When a notice of appeal in any form the same by transmitting to the Board has been received by the contracting any documents not contained therein officer, he shall endorse thereon the which he considers pertinent to the ap- date of mailing (or date of receipt, if peal, furnishing two copies of such doc- otherwise conveyed) and within 10 days uments to the Government trial attorney. shall forward said notice of appeal to (c) Organization of appeal file. Docu- the Board. Following receipt by the ments in the appeal file may be origi- Board of the original notice of an ap- nals or legible facsimile or authenti- peal (whether through the contracting cated copies thereof, and shall be ar- officer or otherwise), the contractor ranged in chronological order where and contracting officer will be prompt- practicable, numbered sequentially, ly advised of its receipt and the con- tabbed, and indexed to identify the tractor will be furnished a copy of contents of the file. these rules. (d) Lengthy documents. The Board may waive the requirement of furnishing to the other party copies of

275

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00285 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 955.6 39 CFR Ch. I (7–1–06 Edition)

bulky, lengthy, or out-of-size docu- appellant’s claim and appeal may, if in ments in the appeal file when a party the opinion of the Board the issues be- has shown that doing so would impose fore the Board are sufficiently defined, an undue burden. At the time a party be deemed to set forth his complaint files with the Board a document as to and the respondent shall be so notified. which such a waiver has been granted, (b) Respondent. Within 30 days from he shall notify the other party that the receipt of said complaint, or the afore- same or a copy is available for inspec- said notice from the Board, respondent tion at the offices of the Board or of shall prepare and file with the Board the party filing same. an original and one copy of an answer (e) Status of documents in appeal file. thereto, setting forth simple, concise, Documents contained in the appeal file and direct statements of respondent’s are considered, without further action defenses to each claim asserted by ap- by the parties, as part of the record pellant. This pleading shall fulfill the upon which the Board will render its generally recognized requirements of decision, unless a party objects to the an answer, and shall set forth any af- consideration of a particular document firmative defenses or counter-claims as in advance of hearing or of settling the appropriate. Upon receipt thereof, the record in the event there is no hearing Board shall serve a copy upon appel- on the appeal. If objection to a docu- lant. Should the answer not be received ment is made, the Board will rule upon within 30 days, the Board may, in its its admissibility into the record as evi- discretion, enter a general denial on dence in accordance with §§ 955.14 and behalf of the Government, and the ap- 955.21. pellant shall be so notified.

§ 955.6 Dismissal for lack of jurisdic- § 955.8 Amendments of pleadings or tion. record. Any motion addressed to the jurisdic- (a) The Board upon its own initiative tion of the Board shall be promptly or upon application by a party may, in filed. Hearing on the motion shall be its discretion, order a party to make a afforded on application of either party, more definite statement of the com- unless the Board determines that its plaint or answer, or to reply to an an- decision on the motion will be deferred swer. pending hearing on both the merits and (b) The Board may, in its discretion, the motion. The Board shall have the and within the proper scope of the ap- right at any time and on its own mo- peal, permit either party to amend his tion to raise the issue of its jurisdic- pleading upon conditions just to both tion to proceed with a particular case, parties. When issues within the proper and shall do so by an appropriate order, scope of the appeal, but not raised by affording the parties an opportunity to the pleadings or the documentation de- be heard thereon. scribed in § 955.5, are tried by express or implied consent of the parties, or by § 955.7 Pleadings. permission of the Board, they shall be (a) Appellant. Within 30 days after re- treated in all respects as if they had ceipt of notice of docketing of the ap- been raised therein. In such instances, peal, the appellant shall file with the motions to amend the pleadings to con- Board an original and one copy of a form to the proof may be entered, but complaint setting forth simple, concise are not required. If evidence is objected and direct statements of each of his to at a hearing on the ground that it is claims, alleging the basis, with appro- not within the issues raised by the priate reference to contract provisions, pleadings or the documentation re- for each claim, and the dollar amount quired pursuant to § 955.5 (which shall claimed. This pleading shall fulfill the be deemed part of the pleadings for this generally recognized requirements of a purpose), it may be admitted within complaint although no particular form the proper scope of the appeal, pro- or formality is required. Upon receipt vided, however, that the objecting thereof, the Board shall serve a copy party may be granted a continuance if upon the respondent. Should the com- necessary to enable him to meet such plaint not be received within 30 days, evidence.

276

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 955.13

§ 955.9 Hearing election. (c) The limitation of the number of expert witnesses, or avoidance of simi- Upon receipt of respondent’s answer lar cumulative evidence, if the case is or the notice referred to in the last to be heard; sentence of § 955.7(b), appellant shall advise whether he desires a hearing as (d) The possibility of agreement dis- prescribed in §§ 955.18 through 955.26, or posing of all or any of the issues in dis- whether, in the alternative, he elects pute; and to submit his case on the record with- (e) Such other matters as may aid in out a hearing, as prescribed in § 955.12. the disposition of the appeal. In appropriate cases, the appellant The results of the conference shall be shall also elect whether he desires the reduced to writing by the Board Mem- optional small claims (expedited) pro- ber and this writing shall thereafter cedure or accelerated procedure pre- constitute part of the record. scribed in § 955.13. § 955.12 Submission without a hearing. [41 FR 7408, Feb. 18, 1976, as amended at 60 FR 57938, Nov. 24, 1995] Either party may elect to waive a hearing and to submit his case upon § 955.10 Prehearing briefs. the record before the Board, as settled Based on an examination of the docu- pursuant to § 955.14. Submission of the mentation described in § 955.5, the case without hearing does not relieve pleadings, and a determination of the parties from the necessity of prov- whether the arguments and authorities ing the facts supporting their allega- addressed to the issues are adequately tions or defenses. Affidavits, deposi- set forth therein, the Board may, in its tions, admissions, answers to interrog- discretion, require the parties to sub- atories, and stipulations may be em- mit prehearing briefs in any case in ployed to supplement other documen- which a hearing has been elected pur- tary evidence in the Board record. The suant to § 955.9. In the absence of a Board may permit such submission to Board requirement therefor, either be supplemented by oral argument party may, in its discretion and upon (transcribed if requested), and by briefs appropriate and sufficient notice to the arranged in accordance with § 955.24. other party, furnish a prehearing brief to the Board. In any case where a pre- § 955.13 Optional small claims (expedited) and accelerated procedures. hearing brief is submitted, it shall be furnished so as to be received by the (a) These procedures are available Board at least 15 days prior to the date solely at the election of the appellant. set for hearing, and a copy shall simul- (b) Elections to Utilize SMALL taneously be furnished to the other CLAIMS (EXPEDITED) and ACCELER- party as previously arranged. ATED Procedure. (1) In appeals where the amount in § 955.11 Prehearing or presubmission dispute is $50,000 or less, the appellant conference. may elect to have the appeal processed Whether the case is to be submitted under a small claims (expedited) proce- pursuant to § 955.12, or heard pursuant dure requiring decision of the appeal, to §§ 955.18 through 955.26, the Board whenever possible, within 120 days may upon its own initiative or upon after the Board receives written notice the application of either party, call of the appellant’s election to utilize upon the parties to appear before a this procedure. The details of this pro- Board Member for a conference to con- cedure appear in paragraph (c) of this sider: section. An appellant may elect the (a) The simplification or clarification ACCELERATED procedure rather than of the issues; the SMALL CLAIMS (EXPEDITED) (b) The possibility of obtaining stipu- procedure for any appeal eligible for lations, admissions, agreements on the SMALL CLAIMS (EXPEDITED) documents, understandings on matters procedure. already of record, or similar agree- (2) In appeals where the amount in ments which will avoid unnecessary dispute is $100,000 or less, the appellant proof; may elect to have the appeal processed

277

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00287 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 955.13 39 CFR Ch. I (7–1–06 Edition)

under an accelerated procedure requir- termined under § 955.18. If a hearing is ing the decision of the appeal, when- not requested by either party within ever possible, within 180 days after the the time prescribed by this Rule, the Board receives written notice of the ap- appeal shall be deemed to have been pellant’s election to utilize this proce- submitted under § 955.12 without a dure. The details of this procedure ap- hearing. pear in paragraph (d) of this section. (3) In cases proceeding under the (3) The appellant’s election of either SMALL CLAIMS (EXPEDITED) proce- the SMALL CLAIMS (EXPEDITED) dure, pleadings, discovery, and other procedure or the ACCELERATED pro- prehearing activity will be allowed cedure may be made either in his no- only as consistent with the require- tice of appeal or by other written no- ment to conduct the hearing on the tice at any time thereafter. date scheduled or, if no hearing is (4) In deciding whether the SMALL scheduled, to close the record on a date CLAIMS (EXPEDITED) procedure or that will allow decision within the 120- the ACCELERATED procedure is appli- day limit. The Board, in its discretion, cable to a given appeal the Board shall may shorten time periods prescribed determine the amount in dispute by elsewhere in these Rules as necessary adding the amount claimed by the ap- to enable the Board to decide the appellant against the respondent to the peal within 120 days after the Board amount claimed by respondent against has received the appellant’s notice of the appellant. If either party making a election of the SMALL CLAIMS (EX- claim against the other party does not PEDITED) procedure. In so doing the otherwise state in writing the amount Board may reserve whatever time up to of its claim, the amount claimed by 30 days it considers necessary for prep- such party shall be the maximum aration of the decision. amount which such party represents in (4) Written decision by the Board in writing to the Board that it can rea- cases processed under the SMALL sonably expect to recover against the CLAIMS (EXPEDITED) procedure will other. be short and contain only summary (c) The SMALL CLAIMS (EXPE- findings of fact and conclusions. Deci- DITED) Procedure. sions will be rendered for the Board by (1) This procedure shall apply only to a single Administrative Judge. If there appeals where the amount in dispute is has been a hearing, the Administrative $50,000 or less as to which the appellant Judge presiding at the hearing may, in has elected the small claims (expe- his discretion, at the conclusion of the dited) procedure. hearing and after entertaining such (2) In cases proceeding under the oral arguments as he deems appro- SMALL CLAIMS (EXPEDITED) proce- priate, render on the record oral sum- dure, the following time periods shall mary findings of fact, conclusions, and apply (i) within ten days from the re- a decision of the Appeal. Whenever spondent’s first receipt from either the such an oral decision is rendered, the appellant or the Board of a copy of the Board will subsequently furnish the appellant’s notice of election of the parties a typed copy of such oral deci- SMALL CLAIMS (EXPEDITED) proce- sion for the record and payment pur- dure, the respondent shall send the poses and for the establishment of the Board a copy of the contract, the con- commencement date of the period for tracting officer’s final decision, and filing a motion for reconsideration the appellant’s claim letter or letters, under § 955.30. if any; (ii) within 5 days after the (5) Decisions of the Board under the Board has acknowledged receipt of the SMALL CLAIMS (EXPEDITED) proce- notice of election, either party desiring dure will not be published, will have no an oral hearing shall so inform the value as precedents, and in the absence Board. If either party requests an oral of fraud, cannot be appealed. hearing, the Board shall promptly (d) The ACCELERATED Procedure schedule such a hearing for a mutually (1) This procedure shall apply only to convenient time consistent with ad- appeals where the amount in dispute is ministrative due process and the 120- $100,000 or less as to which the appel- day limit for a decision, at a place de- lant has made the requisite election.

278

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00288 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 955.15

(2) In cases proceeding under the AC- (f) Except as herein modified, the CELERATED procedure, the parties rules of this part 955 otherwise apply in are encouraged, to the extent possible all aspects. consistent with adequate presentation [44 FR 13014, Mar. 9, 1979; 44 FR 23828, Apr. 23, of their factual and legal positions, to 1979. Redesignated and amended at 60 FR waive pleadings, discovery, and briefs. 57939, Nov. 24, 1995] The Board, in its discretion, may shorten time periods prescribed else- § 955.14 Settling the record. where in these Rules as necessary to (a) The record upon which the enable the Board to decide the appeal Board’s decision will be rendered con- within 180 days after the Board has re- sists of the appeal file described in ceived the appellant’s notice of elec- § 955.5, and to the extent the following tion of the ACCELERATED procedure, items have been filed, pleadings, pre- and may reserve 30 days for prepara- hearing conference memoranda or or- tion of the decision. ders, prehearing briefs, depositions or (3) Written decisions by the Board in interrogatories received in evidence, cases processed under the ACCELER- admissions, stipulations, transcripts of ATED procedure will normally be short conferences and hearings, hearing ex- and contain only summary findings of hibits, posthearing briefs, and docu- fact and conclusions. Decisions will be ments which the Board has specifically rendered for the Board by a single Ad- designated be made a part of the record. The record will at all reason- ministrative Judge with the concur- able times be available for inspection rence of the Chairman or Vice Chair- by the parties at the office of the man or other designated Administra- Board. tive Judge, or by a majority among (b) Except as the Board may other- these two and an additional designated wise order in its discretion, no proof member in case of disagreement. Alter- shall be received in evidence after com- natively, in cases where the amount in pletion of an oral hearing or, in cases dispute is $50,000 or less as to which the submitted on the record, after notifica- accelerated procedure has been elected tion by the Board that the case is and in which there has been a hearing, ready for decision. the single Administrative Judge pre- (c) The weight to be attached to any siding at the hearing may, with the evidence of record will rest within the concurrence of both parties, at the con- sound discretion of the Board. The clusion of the hearing and after enter- Board may in any case require either taining such oral arguments as he party, with appropriate notice to the deems appropriate, render on the other party, to submit additional evi- record oral summary findings of fact, dence on any matter relevant to the conclusions, and a decision of the ap- appeal. peal. Whenever such an oral decision is rendered, the Board will subsequently § 955.15 Discovery—depositions. furnish the parties a typed copy of such (a) General policy and protective orders. oral decision for record and payment The parties are encouraged to engage purposes and to establish the date of in voluntary discovery procedures. In commencement of the period for filing connection with any deposition or a motion for reconsideration under other discovery procedure, the Board § 955.30. may make any order which justice re- (e) Motions for Reconsideration in quires to protect a party or person Cases Arising Under § 955.13. Motions from annoyance, embarrassment, op- for Reconsideration of cases decided pression, or undue burden or expense, under either the small claims (expe- and those orders may include limita- dited) procedure or the accelerated pro- tions on the scope, method, time and cedure need not be decided within the place for discovery, and provisions for time periods prescribed by this § 955.13 protecting the secrecy of confidential for the initial decision of the appeal, information or documents. but all such motions shall be processed (b) When depositions permitted. After and decided rapidly so as to fulfill the an appeal has been docketed and com- intent of this section. plaint filed, the parties may mutually

279

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00289 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 955.16 39 CFR Ch. I (7–1–06 Edition)

agree to, or the Board may, upon appli- request shall be deemed admitted upon cation of either party and for good the failure of a party to respond to the cause shown, order the taking of testi- request for admission. mony of any person by deposition upon (c) Production and inspection of docu- oral examination or written interrog- ments. Upon motion of any party show- atories before any officer authorized to ing good cause therefor, and upon no- administer oaths at the place of exam- tice, the Board may order the other ination, for use as evidence or for pur- party to produce and permit the in- pose of discovery. The application for spection and copying or photographing order shall specify whether the purpose of any designated documents or ob- of the deposition is discovery or for use jects, not privileged, specifically iden- as evidence. tified, and their relevance and materi- (c) Orders on depositions. The time, ality to the cause or causes in issue ex- place, and manner of taking deposi- plained, which are reasonably cal- tions shall be as mutually agreed by culated to lead to the discovery of ad- the parties, or failing such agreement, missible evidence. If the parties cannot governed by order of the Board. themselves agree thereon, the Board (d) Use as evidence. No testimony shall specify just terms and conditions taken by depositions shall be consid- in making the inspection and taking ered as part of the evidence in the the copies and photographs. hearing of an appeal unless and until such testimony is offered and received § 955.17 Service of papers. in evidence at such hearing. It will not Papers shall be served personally or ordinarily be received in evidence if by mailing the same, addressed to the the deponent is present and can testify party upon whom service is to be made. personally at the hearing. In such in- Copies of complaints, answers and si- stances, however, the deposition may multaneous briefs shall be filed di- be used to contradict or impeach the rectly with the Board. The party filing testimony of the witness given at the any other paper with the Board shall hearing. In cases submitted on the send a copy thereof to the opposing record, the Board may, in its discre- party, noting on the paper filed with tion, receive depositions as evidence in the Board, or on the letter transmit- supplementation of that record. ting the same, that a copy has been so (e) Expenses. Each party shall bear its furnished. own expenses associated with the taking of any deposition. HEARINGS § 955.18 Where and when held. § 955.16 Interrogatories to parties, admission of facts, and production Hearings will ordinarily be held in and inspection of documents. the Arlington, VA, area, except that (a) Interrogatories to parties. After an upon request seasonably made and appeal has been filed with the Board, a upon good cause shown, the Board may party may serve on the other party set the hearing at another location. written interrogatories to be answered Hearings will be scheduled at the dis- separately in writing, signed under cretion of the Board with due consider- oath and returned within 30 days. Upon ation to the regular order of appeals timely objection by the party, the and other pertinent factors. On request Board will determine the extent to or motion by either party and upon which the interrogatories will be per- good cause shown, the Board may, in mitted. The scope and use of interrog- its discretion, advance a hearing. atories will be controlled by § 955.15. [41 FR 7408, Feb. 18, 1976, as amended at 60 (b) Admission of facts. After an appeal FR 57938, Nov. 24, 1995; 63 FR 66050, Dec. 1, has been filed with the Board, a party 1998] may serve upon the other party a request for the admission of specified § 955.19 Notice of hearings. facts. Within 30 days after service, the The parties shall be given at least 15 party served shall answer each re- days notice of the time and place set quested fact or file objections thereto. for hearings. In scheduling hearings, The factual propositions set out in the the Board will give due regard to the

280

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00290 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 955.27

desires of the parties and to the re- may be subject to the provisions of quirement for just and inexpensive de- Title 18, U.S.C., sections 287 and 1001, termination of appeals without unnec- and any other provisions of law impos- essary delay. Notices of hearing shall ing penalties for knowingly making be promptly acknowledged by the par- false representations in connection ties. with claims against the United States or in any matter within the jurisdic- § 955.20 Unexcused absence of a party. tion of any department or agency The unexcused absence of a party at thereof. the time and place set for hearing will not be occasion for delay. In the event § 955.23 Copies of papers. of such absence, the hearing will pro- When books, records, papers, or docu- ceed and the case will be regarded as ments have been received in evidence, submitted by the absent party as provided in § 955.12. a true copy thereof or of such part thereof as may be material or relevant § 955.21 Nature of hearings. may be substituted therefor, during the Hearings shall be as informal as may hearing or at the conclusion thereof. be reasonable and appropriate under § 955.24 Posthearing briefs. the circumstances. Appellant and respondent may offer at a hearing on the Posthearing briefs may be submitted merits such relevant evidence as they upon such terms as may be agreed upon deem appropriate and as would be ad- by the parties and the presiding officer missible under the generally accepted at the conclusion of the hearing. Ordi- rules of evidence applied in the courts narily, they will be simultaneous of the United States in nonjury trials, briefs, exchanged within 30 days after subject, however, to the sound discre- receipt of transcript. tion of the presiding officer in supervising the extent and manner of pres- § 955.25 Transcript of proceedings. entation of such evidence. In general, Testimony and argument at hearings admissibility will hinge on relevancy shall be reported verbatim, unless the and materiality. Letters or copies Board otherwise orders. Transcripts or thereof, affidavits, or other evidence copies of the proceedings shall be sup- not ordinarily admissible under the plied to the parties at such rates as generally accepted rules of evidence, may be fixed by contract between the may be admitted in the discretion of Reporter and the U.S. Postal Service. the presiding officer. The weight to be attached to evidence presented in any § 955.26 Withdrawal of exhibits. particular form will be within the discretion of the Board, taking into con- After a decision has become final the sideration all the circumstances of the Board may, upon request and after no- particular case. Stipulations of fact tice to the other party, in its discre- agreed upon by the parties may be re- tion, permit the withdrawal of original garded and used as evidence at the exhibits, or any part thereof, by the hearing. The parties may stipulate the party entitled thereto. The substi- testimony that would be given by a tution of true copies of exhibits or any witness if the witness were present. part thereof may be required by the The Board may in any case require evi- Board in its discretion as a condition of dence in addition to that offered by the granting permission for such with- parties. drawal.

§ 955.22 Examination of witnesses. REPRESENTATION Witnesses before the Board will be examined orally under oath or affirma- § 955.27 The appellant. tion, unless the facts are stipulated, or An individual appellant may appear the presiding officer shall otherwise before the Board in person, a corpora- order. If the testimony of a witness is tion by an officer thereof, a partner- not given under oath, the Board may ship or joint venture by a member warn the witness that his statements thereof, or any of these by an attorney

281

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00291 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 955.28 39 CFR Ch. I (7–1–06 Edition)

at law duly licensed in any State, com- DISMISSALS monwealth, territory, or in the Dis- trict of Columbia. An attorney rep- § 955.31 Dismissal without prejudice. resenting an appellant shall file a writ- In certain cases, appeals docketed be- ten notice of appearance with the fore the Board are required to be placed Board. in a suspense status and the Board is unable to proceed with disposition § 955.28 The respondent. thereof for reasons not within the con- Postal Service counsel, designated by trol of the Board. In any such case the General Counsel, will represent the where the suspension has continued, or interest of the Government before the it appears that it will continue, for an Board. Counsel shall file a notice of ap- inordinate length of time, the Board pearance with the Board, and notice may, in its discretion, dismiss such ap- thereof will be given appellant or his peals from its docket without prejudice attorney in the form specified by the to their restoration when the cause of Board from time to time. Whenever at suspension has been removed. Unless any time it appears that appellant and either party or the Board acts within Postal Service Counsel are in agree- three years to reinstate any appeal dis- ment as to disposition of the con- missed without prejudice, the dismissal troversy, the Board may suspend fur- shall be deemed with prejudice. ther processing of the appeal: Provided, however, That if the Board is advised § 955.32 Dismissal for failure to pros- thereafter by either party that the con- ecute. troversy has not been disposed of by Whenever a record discloses the fail- agreement, the case shall be restored ure of either party to file documents to the Board’s calendar without loss of required by these rules, respond to no- position. tices or correspondence from the Board, comply with orders of the DECISIONS Board, or otherwise indicates an intention not to continue the prosecution or § 955.29 Decisions. defense of an appeal, the Board may Decisions of the Board will be made issue an order requiring the offending in writing and authenticated copies party to show cause why the appeal thereof will be forwarded simulta- should not be either dismissed or neously to both parties. The rules of granted, as appropriate. If the offend- the Board and all final orders and deci- ing party shall fail to show such cause, sions shall be open for public inspec- the Board may take such action as it tion at the offices of the Board in Ar- deems reasonable and proper under the lington, VA. Decisions of the Board circumstances. will be made solely upon the record, as described in § 955.14. EX PARTE COMMUNICATIONS

[41 FR 7408, Feb. 18, 1976, as amended at 63 § 955.33 Ex parte communications. FR 66050, Dec. 1, 1998] No member of the Board or of the MOTION FOR RECONSIDERATION Board’s staff shall entertain, nor shall any person directly or indirectly in- § 955.30 Motion for reconsideration. volved in an appeal submit to the A motion for reconsideration, if filed Board or the Board’s staff, off the by either party, shall set forth specifi- record, any evidence, explanation, cally the ground or grounds relied upon analysis, or advice, whether written or to sustain the motion, and shall be oral, regarding any matter at issue in filed within 30 days from the date of an appeal. This provision does not the receipt of a copy of the decision of apply to consultation among Board the Board by the party filing the mo- members nor to ex parte communication. tions concerning the Board’s administrative functions or procedures.

282

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00292 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 955.35

SANCTIONS relevance to the case of the testimony and of any books and papers sought. § 955.34 Sanctions. (d) Requests to quash or modify. Upon If any party fails or refuses to obey written request by the person subpoe- an order issued by the Board, the Board naed or by a party, made within 10 days may make such order in regard to the after service but in any event not later failure as it considers necessary to the than the time specified in the subpoena just and expeditious conduct of the ap- for compliance, the Board may (1) peal. quash or modify the subpoena if it is unreasonable and oppressive or for EFFECTIVE DATE AND APPLICABILITY other good cause shown, or (2) require the person in whose behalf the sub- § 955.35 Subpoenas. poena was issued to advance the rea- (a) General. Upon written request of sonable cost of producing subpoenaed either party filed with the Recorder or books and papers. Where circumstances on his own initiative, the Administra- require, the Board may act upon such a tive Judge to whom a case is assigned request at any time after a copy has or who is otherwise designated by the been served upon the opposing party. Chairman may issue a subpoena requir- (e) Form; issuance. (1) Every subpoena ing: shall state the name of the Board and (1) Testimony at a deposition. The de- the title of the appeal and shall com- posing of a witness in the city or coun- mand each person to whom it is di- ty where he resides or is employed or rected to attend and give testimony, transacts his business in person, or at and if appropriate, to produce specified another location convenient for him books and papers at a time and place that is specifically determined by the therein specified. In issuing a subpoena Board; to a requesting party, the Administra- (2) Testimony at a hearing. The attend- tive Judge shall sign the subpoena and ance of a witness for the purpose of may in his discretion, enter the name taking testimony at a hearing; and of the witness and otherwise leave it blank. The party to whom the sub- (3) Production of books and papers. In addition to (1) and (2), the production poena is issued shall complete the sub- by the witness at the deposition or poena before service. hearing of books and papers designated (2) Where the witness is located in a in the subpoena. foreign country, a letter rogatory or subpoena may be issued and served (b) Voluntary cooperation. Each party under the circumstances and in the is expected (1) To cooperate and make manner provided in 28 U.S.C. 1781–1784. available witnesses and evidence under (f) Service. (1) The party requesting its control as requested by the other issuance of a subpoena shall arrange party, without issuance of a subpoena, for service. and (2) To secure voluntary attendance (2) A subpoena requiring the attend- of desired third-party books, papers, ance of a witness at a deposition or documents, or tangible things when- hearing may be served at any place. A ever possible. subpoena may be served by a United (c) Requests for subpoenas. (1) A re- States marshal or deputy marshal, or quest for a subpoena shall normally be by any other person who is not a party filed at least: and not less than 18 years of age. Serv- (i) 15 days before a scheduled deposi- ice of a subpoena upon a person named tion where the attendance of a witness therein shall be made by personally de- at a deposition is sought; livering a copy to that person and ten- (ii) 30 days before a scheduled hearing dering the fees for one day’s attend- where the attendance of a witness at a ance and the mileage provided by 28 hearing is sought. U.S.C. 1821 or other applicable law. In its discretion the Board may honor (3) The party at whose instance a requests for subpoenas not made within subpoena is issued shall be responsible these time limitations. for the payment of fees and mileage of (2) A request for a subpoena shall the witness and of the officer who state the reasonable scope and general serves the subpoena. The failure to

283

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00293 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 955.36 39 CFR Ch. I (7–1–06 Edition)

make payment of such charges on de- 956.15 Presiding officer. mand may be deemed by the Board as 956.16 Burden of proof and evidence. a sufficient ground for striking the tes- 956.17 Discovery—depositions. timony of the witness and the evidence 956.18 Interrogatories to parties, admission of facts, and production of documents. the witness has produced. 956.19 Transcript. (g) Contumacy or refusal to obey a sub- 956.20 Proposed findings and conclusions. poena. In case of contumacy or refusal 956.21 Decisions. to obey a subpoena by a person who re- 956.22 Exceptions to initial decision or ten- sides, if found, or transacts business tative decision. within the jurisdiction of a U.S. Dis- 956.23 Judicial Officer. trict Court, the Board will apply to the 956.24 Motion for reconsideration. 956.25 Modification or revocation of orders. Court through the Attorney General of 956.26 Computation of time. the United States for an order requir- 956.27 Official record. ing the person to appear before the 956.28 Ex parte communications. Board or a member thereof to give tes- AUTHORITY: 18 U.S.C. 207(j), 39 U.S.C. 204, timony or produce evidence or both. 401. Any failure of any such person to obey the order of the Court may be punished SOURCE: 49 FR 40771, Oct. 17, 1984, unless by the Court as a contempt thereof. otherwise noted. [44 FR 13015, Mar. 9, 1979. Redesignated and § 956.1 Authority for rules. amended at 60 FR 57939, Nov. 24, 1995] The rules in this part are issued by the Judicial Officer of the Postal Serv- § 955.36 Effective Dates and Applica- bility. ice pursuant to authority delegated by the Postmaster General (39 U.S.C. 204, The provisions of §§ 955.9 and 955.13 401). took effect on October 1, 1995. Pursuant to the Contract Disputes Acts of 1978 § 956.2 Scope of rules. (41 U.S.C. 601–613), §§ 955.13 and 955.35 The rules in this part shall be appli- apply to appeals relating to contracts cable in all formal proceedings before entered into on or after March 1, 1979. the Postal Service pertaining to pro- All other provisions of this part 955 posed disciplinary action initiated took effect February 18, 1976. Except as under § 447.34(e) of this title. otherwise directed by the Board, these rules shall not apply to appeals dock- § 956.3 Definitions. eted prior to their effective dates. (a) The term Ethical Conduct Officer [60 FR 57939, Nov. 24, 1995] has the same meaning as in § 447.31 of this title and includes his authorized PART 956—RULES OF PRACTICE IN representative. PROCEEDINGS RELATIVE TO DIS- (b) Respondent means any individual CIPLINARY ACTION FOR VIOLA- who has been served a written notice of TION OF RESTRICTIONS ON POST- proposed disciplinary action pursuant to § 447.34 of this title. EMPLOYMENT ACTIVITY (c) The Recorder means the Recorder of the U.S. Postal Service, 2101 Wilson Sec. 956.1 Authority for rules. Boulevard, Suite 600, Arlington, VA 956.2 Scope of rules. 22201–3078. 956.3 Definitions. [49 FR 40771, Oct. 17, 1984, as amended at 63 956.4 Initiation of proceedings. FR 66051, Dec. 1, 1998] 956.5 Answer. 956.6 Hearing election. § 956.4 Initiation of proceedings. 956.7 Notice of hearing. 956.8 Reply. (a) The Ethical Conduct Officer shall 956.9 Service and filing of documents for the initiate a proceeding by serving upon record. the proposed respondent a written no- 956.10 Respondent’s failure to appear at the tice of proposed disciplinary action in hearing. 956.11 Amendment of pleadings. the manner hereinafter (§ 956.9(d)) pro- 956.12 Continuances and extensions. vided for the service of all other pa- 956.13 Hearings. pers. 956.14 Appearances. (b) The notice shall:

284

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00294 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 956.9

(1) State that disciplinary action is failure to appear at the hearing, will be being proposed; issued (see § 956.10). In setting a hearing (2) Inform the respondent of the sub- date, due regard shall be given to the section of section 207 (18 U.S.C. 207) respondent’s need for: that he is alleged to have violated and (1) Adequate time to prepare a de- of the basis of the allegation; fense properly; and (3) Inform the respondent of the dis- (2) An expeditious resolution of alle- ciplinary action which is proposed; gations that may be damaging to his or (4) Advise the respondent that he her reputation. Subject to those con- may oppose the proposed disciplinary siderations, whenever practicable, the action by filing an answer within 20 hearing date shall be within 30 days of days following receipt of the notice; the date of the notice of hearing. (5) State that the disciplinary action (b) The notice of proposed discipli- will not become effective until after a nary action and the answer together final agency decision is issued; with the reply, if any, shall become the (6) Inform the respondent of the rules pleadings in any proceeding in which a in this part, a copy of which shall be hearing is held. enclosed with the notice. (c) If no answer is filed within 20 days § 956.8 Reply. following the receipt of the notice, the Not more than 15 days from the serv- proposed disciplinary action set forth ice of the answer, the Ethical Conduct in the notice shall become the final Officer may submit a reply. agency decision without further notice to the respondent. § 956.9 Service and filing of documents for the record. § 956.5 Answer. (a) Each party shall file with the Re- Within 20 days from receipt of the no- corder pleadings, motions, orders and tice of proposed disciplinary action, other documents for the record. The the respondent may file an answer set- Recorder shall cause copies to be ting forth simple, concise, and direct served promptly on other parties to the statements admitting, denying or ex- proceeding and on the presiding officer. plaining each of the allegations set (b) The parties shall submit four cop- forth in the notice. ies of all documents unless otherwise ordered by the presiding officer. One § 956.6 Hearing election. copy shall be signed as the original. Either party may, within, 10 days fol- (c) Documents shall be dated and lowing the filing of the respondent’s shall state the docket number and title answer, request a hearing. If a timely of the proceeding. Any pleading or request is not made, the case shall be other document required by these rules submitted on the record without a or by order of the presiding officer to hearing. Submission of the case with- be filed by a specified date shall be out a hearing does not relieve the par- filed with the Recorder on or before ties of the necessity of proving the such date. The filing date shall be en- facts supporting their allegations or tered thereon by the Recorder. defenses. Affidavits, depositions, ad- (d) Service of all papers shall be ef- missions, answers to interrogatories fected by mailing the same, postage and stipulations may be employed to prepaid registered or certified mail, re- supplement the pleadings which con- turn receipt requested, or by causing stitute the record. The presiding officer said notice to be personally served on may permit such submission to be sup- the proposed respondent by an author- plemented by oral argument (tran- ized representative of the Postal Serv- scribed if requested) and by proposed ice. In the case of personal service, the findings of fact and conclusions of law. person making service shall, if possible, secure from the proposed re- § 956.7 Notice of hearing. spondent or his agent, a written ac- (a) When a request for a hearing is knowledgment of receipt of said notice, filed, a notice of hearing, stating the showing the date and time of such re- time and place thereof and advising the ceipt. If the person upon whom service respondent of the consequences of a is made will not acknowledge receipt,

285

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00295 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 956.10 39 CFR Ch. I (7–1–06 Edition)

the person effecting service shall exe- have transpired since the date of the cute a statement, showing the time, pleading sought to be supplemented place and manner of service, which and which are relevant to any of the shall constitute evidence of service. issues involved. The acknowledgment, statement, or return receipt, when service is effected § 956.12 Continuances and extensions. by mail, shall be made a part of the Continuances and extensions will not record by the Ethical Conduct Officer. be granted by the presiding officer ex- The date of delivery, as shown by the cept for good cause shown. acknowledgment or statement of personal service or the return receipt, § 956.13 Hearings. shall be the date of service. (a) Hearings are held at 2101 Wilson Boulevard, Suite 600, Arlington, VA § 956.10 Respondent’s failure to appear at the hearing. 22201–3078, or other locations designated by the presiding officer. If the respondent shall fail to appear (b) A party may, not later than 7 at the hearing, the presiding officer days prior to the scheduled date of a shall receive the Ethical Conduct Offi- hearing, file a request that such hear- cer’s evidence and render a decision ing be held at a place other than that without requirement of further notice designated in the notice of hearing. He to the respondent. shall support his request with a state- § 956.11 Amendment of pleadings. ment outlining: (1) The evidence to be offered in such (a) By consent of the parties, a plead- place; ing may be amended at any time. Also, (2) The names and addresses of the a party may move to amend a pleading witnesses who will testify; at any time prior to the close of the (3) The reasons why such evidence hearing, provided that the proposed cannot be produced at the place des- amendment is reasonably within the ignated in the notice of hearing. scope of the proceeding. (b) When issues not raised by the The presiding officer shall give consid- pleadings but reasonably within the eration to the convenience and neces- scope of the proceedings initiated by sity of the parties and the relevance of the notice of proposed disciplinary ac- the evidence to be offered. tion are tried by express or implied [49 FR 40771, Oct. 17, 1984, as amended at 63 consent of the parties, they shall be FR 66051, Dec. 1, 1998] treated in all respects as if they had been raised in the pleadings. Such § 956.14 Appearances. amendments, as may be necessary to (a) A respondent may appear and be make the pleadings conform to the evi- heard in person or by attorney. dence and to raise such issues, shall be (b) An attorney may practice before allowed at any time upon the motion of the Postal Service in accordance with any party. applicable rules issued by the Judicial (c) If a party objects to the introduc- Officer (see part 951 of this chapter). tion of evidence at the hearing on the (c) When a respondent is represented ground that it is not within the issues by an attorney, all pleadings and other framed by the pleadings, but fails to papers subsequent to the notice of pro- satisfy the presiding officer that an posed disciplinary action shall be amendment of the pleadings would mailed to the attorney. prejudice him on the merits, the pre- (d) All counsel shall promptly file no- siding officer may allow the pleadings tices of appearance. Changes of the re- to be amended and may grant a con- spondent’s counsel shall be recorded by tinuance to enable the objecting party notices from retiring and succeeding to rebut the evidence presented. counsel and from the respondent. (d) The presiding officer may, upon (e) After an answer has been filed reasonable notice and upon such terms pursuant to the rules in this part, the as are just, permit service of a supple- Law Department shall represent the mental pleading setting forth trans- Ethical Conduct Officer in further pro- actions, occurrences, or events which ceedings relative to the hearing and

286

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00296 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 956.17

shall in its notice of appearance iden- (b) Except as otherwise provided in tify the individual member of such de- these rules, the Federal Rules of Evi- partment who has been assigned to dence shall be applicable to the hear- handle the case on its behalf. ings conducted under this part. Such rules may be relaxed, however, to the § 956.15 Presiding officer. extent that the presiding officer deems (a) The presiding officer shall be an proper to insure a fair hearing. Administrative Law Judge qualified in (c) Testimony shall be under oath or accordance with law. The Chief Admin- affirmation, and witnesses shall be sub- istrative Law Judge shall assign cases ject to cross-examination. under this part upon rotation so far as (d) Agreed statements of fact may be practicable. The Judicial Officer may, received in evidence. for good cause found, preside at the re- (e) Official notice or knowledge may ception of evidence upon request of ei- be taken of the types of matters of ther party. which judicial notice or knowledge (b) The presiding officer shall have may be taken. authority to: (f) Each party may present oral argu- (1) Administer oaths and affirma- ment. tions; (2) Examine witnesses; § 956.17 Discovery—depositions. (3) Rule upon offers of proof, admissi- (a) The parties are encouraged to en- bility of evidence, and matters of pro- gage in voluntary discovery proce- cedure; dures. In connection with any deposi- (4) Order any pleading amended upon tion or other discovery procedure, the motion of a party at any time prior to presiding officer may make any order the close of the hearing; which justice requires to protect a (5) Maintain discipline and decorum party or person from annoyance, em- and exclude from the hearing any per- barrassment, oppression, or undue bur- son acting in an indecorous manner; den or expense; and those orders may (6) Require the filing of briefs or include limitations on the scope, meth- memoranda of law on any matter upon od, time and place for discovery, and which he is required to rule; provisions for protecting the secrecy of (7) Order prehearing conferences for confidential information or documents. the purposes of the settlement or sim- (b) After an answer has been filed, plification of issues by the parties; the parties may mutually agree to, or (8) Permit oral argument by any the presiding officer may, upon appli- party; cation of either party and for good (9) Order the proceeding reopened at cause shown, order the taking of the any time prior to his decision for the testimony of any person by deposition receipt of additional evidence; upon oral examination or written in- (10) Render an initial decision, if the terrogatories before any officer author- presiding officer is not the Judicial Of- ized to administer oaths at the place of ficer, which becomes the final agency examination, for use as evidence or for decision unless a timely appeal is purposes of discovery. The application taken; the Judicial Officer may issue a for order shall specify whether the pur- tentative or a final decision; pose of the deposition is discovery or (11) Take such other and further ac- for use as evidence. tion as may be necessary properly to (c) The time, place, and manner of preside over the proceeding and render taking depositions shall be mutually decision therein. agreed by the parties or, failing such agreement, governed by order of the § 956.16 Burden of proof and evidence. presiding officer. (a) Each party may introduce and ex- (d) No testimony taken by deposi- amine witnesses and submit physical tions shall be considered as part of the evidence. The Ethical Conduct Officer evidence in a hearing unless and until has the burden of proof in any pro- such testimony is offered and received ceeding under this part and must es- in evidence at such hearing. It will not tablish a violation by a preponderance ordinarily be received in evidence if of the evidence. the deponent is present and can testify

287

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00297 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 956.18 39 CFR Ch. I (7–1–06 Edition)

personally at the hearing. In such in- ceedings shall be supplied to the par- stances, however, the deposition may ties at such rates as may be fixed by be used to contradict or impeach the contract between the reporter and the testimony of the witness given at the Postal Service. hearing. In cases submitted on the record, the presiding officer may, in his § 956.20 Proposed findings and conclu- discretion, receive depositions as evi- sions. dence in supplementation of that (a) Each party to a proceeding, ex- record. cept one who fails to appear at the (e) Each party shall bear its own ex- hearing may, unless the presiding offi- penses associated with the taking of cer orders otherwise, submit proposed any deposition. findings of fact, conclusions of law and supporting reasons, either in oral or § 956.18 Interrogatories to parties, ad- written form at the discretion of the mission of facts, and production of presiding officer. The presiding officer documents. may also require parties to any pro- (a) After an answer has been filed, a ceeding to submit proposed findings of party may serve on the other party fact and conclusions of law with sup- written interrogatories to be answered porting reasons. Unless ordered other- separately in writing, signed under wise by the presiding officer, the date oath and returned within 30 days. Upon set for filing of proposed findings of timely objection by the party, the pre- fact and conclusions of law shall be siding officer will determine the extent within 15 days after the delivery of the to which the interrogatories will be official transcript to the Recorder who permitted. The scope and use of inter- shall notify both parties of the date of rogatories will be controlled by § 956.17. its receipt. The filing date for proposed (b) After an answer has been filed, a findings shall be the same for both par- party may serve upon the other party a ties. If not submitted by such date, or request for the admission of specified unless an extension of time for the fil- facts. Within 30 days after service, the ing thereof is granted, they will not be party served shall answer each re- included in the record or given consid- quested fact or file objections thereto. eration. The factual propositions set out in the (b) Proposed findings of fact shall be request shall be deemed admitted upon set forth in serially numbered para- the failure of a party to respond to the graphs and shall state with particu- request for admission. larity all evidentiary facts in the (c) Upon motion of any party show- record with appropriate citations to ing good cause therefore, and upon no- the transcript or exhibits supporting tice, the presiding officer may order the proposed findings. Each proposed the other party to produce and permit conclusion shall be separately stated. the inspection and copying or photocopying of any designated docu- § 956.21 Decisions. ments or objects, not privileged, spe- (a) A written initial decision by an cifically identified, and their relevance Administrative Law Judge shall be ren- and materiality to the cause or causes dered with all due speed. The initial de- in issue explained, which are reason- cision shall include findings of fact and ably calculated to lead to the discovery conclusions of law, with the reasons of admissible evidence. If the parties therefor, upon all the material issues cannot themselves agree thereon, the of fact or law presented on the record, presiding officer shall specify just and an appropriate order. A tentative terms and conditions in making the in- decision shall become the final decision spection and making the copies and of the Postal Service unless exceptions photographs. are filed in accordance with § 956.22. (b) When the Judicial Officer presides § 956.19 Transcript. at the hearing, he shall issue a final or Testimony and argument at hearings a tentative decision. Such decision shall be reported verbatim, unless the shall include findings of fact and con- presiding officer otherwise orders. clusions of law, with the reasons there- Transcripts or copies of the pro- for, upon all the material issues of fact

288

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00298 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 956.25

or law presented on the record, and an 50 printed or 100 typewritten pages dou- appropriate order. A tentative decision ble spaced. shall become the final decision of the (f) The Judicial Officer will extend Postal Service unless exceptions are the time to file briefs only upon mo- filed in accordance with § 956.22. tion for good cause found. The movant shall be promptly notified of the Judi- § 956.22 Exceptions to initial decision cial Officer’s decision on the motion. or tentative decision. § 956.23 Judicial Officer. (a) A party in a proceeding presided over by an Administrative Law Judge, The Judicial Office is authorized: except a party who failed to file an an- (a) To act as presiding officer at swer, may appeal to the Judicial Offi- hearings; cer by filing exceptions in a brief on (b) To render tentative decisions; appeal within 15 days from the receipt (c) To render final decisions of the of the Administrative Law Judge’s Postal Service; written initial decision. (d) To refer the record in any pro- (b) A party in a proceeding presided ceedings to the Postmaster General or over by the Judicial Officer, except one the Deputy Postmaster General who who has failed to file an answer, may will make the final decision of the file exceptions within 15 days from the Postal Service; and receipt of the Judicial Officer’s written (e) To revise or amend these rules of tentative decision. practice. In determining appeals from initial decisions or exceptions to ten- (c) Upon receipt of the brief on ap- tative decisions, the entire official peal from an initial decision of an Ad- record will be considered before a final ministrative Law Judge, the Recorder decision of the Postal Service is ren- shall promptly transmit the record to dered. Before rendering a final decision the Judicial Officer. The date for filing of the Postal Service, the Judicial Offi- the reply to a brief on appeal or to a cer may order the hearing reopened for brief in support of exceptions to a ten- the presentation of additional evidence tative decision by the Judicial Officer by the parties. is 10 days after the receipt thereof. No additional briefs shall be received un- § 956.24 Motion for reconsideration. less requested by the Judicial Officer. Within 10 days from the date thereof, (d) Briefs on appeal or in support of or such longer period as may be fixed exceptions and replies thereto shall be by the Judicial Officer, either party filed in quadruplicate with the Re- may file a motion for reconsideration corder and contain the following mat- of the final agency decision. Each mo- ter in the order indicated: tion for reconsideration shall be ac- (1) A subject index of the matters companied by a brief clearly setting presented, with page references; a table forth the points of fact and of law re- of cases alphabetically arranged; a list lied upon in support of said motion. of statutes and texts cited, with page The Judicial Officer, in his discretion, references. may hold a hearing on the issues raised (2) A concise abstract or statement of by the motion. the case. (3) Numbered exceptions to specific § 956.25 Modification or revocation of findings of fact or conclusions of law of orders. the presiding officer. A party against whom an order has (4) A concise argument clearly set- been issued may file an application setting forth points of fact and of law re- ting forth reasons which he believes lied upon in support of, or in opposition warrant the modification or revocation to, each exception taken, together with of the order. The Recorder shall trans- specific references to the pertinent mit a copy of the application to the part of the record and the legal or Ethical Conduct Officer who shall file a other authorities relied upon. written reply. A copy of the reply shall (e) Unless permission is granted by be sent to the applicant by the Re- the Judicial Officer, no brief on appeal corder. The Judicial Officer, in his dis- or in support of exceptions shall exceed cretion, may hold a hearing on the

289

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00299 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 956.26 39 CFR Ch. I (7–1–06 Edition)

issues raised by the application. There- 957.24 Computation of time. after an order granting or denying such 957.25 Official record. application will be issued by the Judi- 957.26 Public information. cial Officer. 957.27 Suspension. 957.28 Ex parte communications.

§ 956.26 Computation of time. AUTHORITY: 39 U.S.C. 204, 401.

A designated period of time under the SOURCE: 36 FR 11574, June 16, 1971, unless rules of this part excludes the day the otherwise noted. period begins and includes the last day of the period unless the last day is a § 957.1 Authority for rules. Saturday or Sunday or legal holiday, The rules in this part are issued by in which event the period runs until the Judicial Officer of the Postal Serv- the close of business on the next busi- ice pursuant to authority delegated by ness day. the Postmaster General (39 U.S.C. secs. 204, 401; chapter 3, section 7 of the Post- § 956.27 Official record. al Service Purchasing Manual). The transcript of testimony together [36 FR 11574, June 16, 1971, as amended at 41 with all pleadings, orders, exhibits, FR 19309, May 12, 1976; 63 FR 66051, Dec. 1, briefs, and other documents filed in the 1998] proceeding shall constitute the official record of the proceeding. § 957.2 Scope of rules. The rules in this part shall be appli- § 956.28 Ex parte communications. cable in all formal proceedings before The provisions of 5 U.S.C. 551(14), the Postal Service pertaining to hear- 556(d) and 557(d) prohibiting ex parte ings initiated under chapter 3, section 7 communications are made applicable of the Postal Service Purchasing Man- to proceedings under these rules of ual. practice. [36 FR 11574, June 16, 1971, as amended at 41 FR 19309, May 12, 1976; 63 FR 66051, Dec. 1, PART 957—RULES OF PRACTICE IN 1998; 67 FR 62179, Oct. 4, 2002] PROCEEDINGS RELATIVE TO DE- BARMENT AND SUSPENSION § 957.3 Definitions. FROM CONTRACTING (a) the term Vice President means a Vice President with purchasing author- Sec. ity in the Postal Service or the Vice 957.1 Authority for rules. President’s representative for the pur- 957.2 Scope of rules. pose of carrying out the provisions of 957.3 Definitions. chapter 3, section 7 of the Postal Serv- 957.4 Initiation of debarment proceedings. 957.5 The request for a hearing. ice Purchasing Manual. 957.6 Order relative to hearing. (b) The term General Counsel includes 957.7 Reply. the General Counsel’s authorized rep- 957.8 Service and filing documents for the resentative. record. (c) The term Judicial Officer includes 957.9 Respondent’s failure to appear at the the Acting Judicial Officer. hearing. (d) Debarment means, in general, an 957.10 Respondent already debarred by an- exclusion from Government con- other Government agency. 957.11 Amendment of pleadings. tracting and subcontracting for a rea- 957.12 Continuances and extensions. sonable, specified period of time com- 957.13 Hearings. mensurate with the seriousness of the 957.14 Appearances. offense or failure, or the inadequacy of 957.15 Conduct of the hearing. performance. 957.16 Evidence. (e) Suspension means a disqualifica- 957.17 Witness fees. tion from Government contracting and 957.18 Depositions. subcontracting for a temporary period 957.19 Transcript. 957.20 Proposed findings and conclusions. of time because a concern or individual 957.21 Decision. is suspected upon adequate evidence of 957.22 Motion for reconsideration. engaging in criminal, fraudulent, or se- 957.23 Modification or revocation of orders. riously improper conduct.

290

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00300 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 957.8

(f) Respondent means any individual, reopen any debarment proceeding pre- firm or other entity which has been viously closed pursuant to paragraph served a written notice of proposed de- (c) of this section if the Judicial Officer barment pursuant to chapter 3, section shall find that service was incomplete 7 of the Postal Service Purchasing or otherwise failed to adequately ad- Manual. vise of the pendency of the proposed de- (g) The Recorder means the Recorder barment. of the United States Postal Service, [36 FR 11574, June 16, 1971, as amended at 63 2101 Wilson Boulevard, Suite 600, Ar- FR 66051, Dec. 1, 1998] lington, VA 22201–3078. [36 FR 11574, June 16, 1971, as amended at 38 § 957.5 The request for a hearing. FR 17217, June 29, 1973; 41 FR 19309, May 12, A respondent may, within 20 days fol- 1976; 63 FR 66051, Dec. 1, 1998] lowing the receipt of a written notice of proposed debarment, file a request § 957.4 Initiation of debarment pro- for a hearing before the Judicial Offi- ceedings. cer. The request shall be addressed to (a) A Vice President shall initiate a the presiding officer through the Vice debarment proceeding by serving upon President who initiated the debarment the proposed Respondent a written no- proceeding and shall be accompanied tice of proposed debarment in the man- by a concise statement admitting, de- ner hereinafter (§ 957.8(d)) provided for nying or explaining each of the allega- the service of all other papers. tions set forth in the notice of proposed (b) The notice shall state: debarment and stating the relief de- (1) That debarment is being consid- sired. ered; (2) The reasons for the proposed de- [36 FR 11574, June 16, 1971, as amended at 63 barment; FR 66051, Dec. 1, 1998] (3) The period of debarment and the § 957.6 Order relative to hearing. proposed effective date thereof; (4) That the debarment will not be- (a) The Judicial Officer shall issue an come effective until after a hearing if order granting the Respondent’s re- such hearing is requested within 20 quest for a hearing, establishing the days following the receipt of the no- time and place thereof and advising the tice; and Respondent of the consequences of a (5) That the request for a hearing is failure to appear at the hearing (see to be submitted in the manner pre- § 957.9). Whenever practicable, the hear- scribed by the rules in this part, a copy ing date shall be within 30 days of the of which shall be enclosed with the no- date of the Judicial Officer’s order rel- tice. ative to hearing. (c) If no hearing is requested within (b) The notice of proposed debarment 20 days following the receipt of the no- and the request for a hearing together tice, the action of the Vice President with the reply, if any, shall become the set forth in the notice shall become the pleadings in any proceeding in which final agency determination without the Judicial Officer orders a hearing to further notice to the Respondent. be held. (d) The party against which a final § 957.7 Reply. agency determination has been entered pursuant to paragraph (c) of this sec- Not more than 15 days from the serv- tion shall, however, at any time have ice of the request for a hearing, the the privilege of reopening a case for General Counsel may submit a reply on the limited purpose of contesting the behalf of the Vice President who initi- issue of service. Such party’s conten- ated the debarment proceeding. tions on that issue shall be addressed [36 FR 11574, June 16, 1971, as amended at 63 to the Judicial Officer in the same FR 66051, Dec. 1, 1998] manner as a request for a hearing (see § 957.5). The Judicial Officer may re- § 957.8 Service and filing documents quire such additional showings or proof for the record. as the Judicial Officer may deem nec- (a) Each party shall file with the Re- essary on the issue of service and shall corder pleadings, motions, orders and

291

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00301 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 957.9 39 CFR Ch. I (7–1–06 Edition)

other documents for the record. The cy for a term concurrent with such de- Recorder shall cause copies to be barment, the debarment proceedings served promptly on other parties to the before the Postal Service may be based proceeding and on the Judicial Officer. entirely upon the record of facts ob- (b) The parties shall submit four cop- tained from such other agency or upon ies of all documents unless otherwise such facts and additional other facts. ordered by the Judicial Officer. One In such cases the facts obtained from copy shall be signed as the original. the other agency shall be considered as (c) Documents shall be dated and established, but the party to be shall state the docket number and title debarred shall have opportunity to of the proceeding. Any pleading or present information to the Judicial Of- other document required by order of ficer and to explain why the debarment the Judicial Officer to be filed by a by the Postal Service should not be im- specified date shall be served upon the posed. Recorder on or before such date. The (b) Where the Vice President initi- date of such service shall be the filing ating the debarment proceeding relies: date and shall be entered thereon by (1) Upon the provisions of paragraph the Recorder. (a) of this section, or (d) Service of all papers shall be ef- (2) Upon all or part of the record of fected by mailing the same, postage the proposed Respondent’s previous de- prepaid registered, or certified mail, barment by another Government agen- return receipt requested, or by causing cy, in initiating such proceeding, the 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 from the proposed Respondent or his or (c) The Vice President’s reliance her agent, a written acknowledgment upon provisions of paragraph (a) of this of receipt of said notice, showing the section, stated in conformity with the date and time of such receipt. Said ac- directions set forth in paragraph (b) of knowledgment (or the return receipt this section does not deprive the Re- where service is effectuated by mail) spondent of the right to request the Ju- shall be made a part of the record by dicial Officer to grant a hearing pursu- the Vice President initiating the debar- ant to these rules, nor the Judicial Of- ment proceeding. The date of delivery, ficer the full discretion to grant or as shown by the acknowledgment of deny such request. 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 FR 66051, Dec. 1, 1998] § 957.11 Amendment of pleadings. (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 [36 FR 11574, June 16, 1971, as amended at 37 scope of the proceedings initiated by FR 23422, Nov. 3, 1972; 63 FR 66051, Dec. 1, the notice of proposed debarment are 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

292

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00302 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 957.15

any time upon the motion of any applicable rules issued by the Judicial party. Officer (see part 951 of this chapter). (c) If a party objects to the introduc- (c) When a Respondent is represented tion of evidence at the hearing on the by an attorney, all pleadings and other ground that it is not within the issues papers subsequent to the notice of pro- framed by the pleadings, but fails to posed debarment shall be mailed to the satisfy the Judicial Officer that an attorney. amendment of the pleadings would (d) All counsel shall promptly file no- prejudice him on the merits, the Judi- tices of appearance. Changes of Re- cial Officer may allow the pleadings to spondent’s counsel shall be recorded by be amended and may grant a continu- notices from retiring and succeeding ance to enable the objecting party to counsel and from the Respondent. rebut the evidence presented. (d) The Judicial Officer may, upon (e) After a request for a hearing has reasonable notice and upon such terms been filed pursuant to the rules in this as are just, permit service of a supple- part, the Law Department shall rep- mental pleading setting forth trans- resent the Vice President in further actions, occurrences, or events which proceedings relative to the hearing and have transpired since the date of the shall in its notice of appearance iden- pleading sought to be supplemented tify the individual member of such of- and which are relevant to any of the fice who has been assigned to handle issues involved. the case on its behalf.

§ 957.12 Continuances and extensions. [36 FR 11574, June 16, 1971, as amended at 63 FR 66051, Dec. 1, 1998] Continuances and extensions will not be granted by the Judicial Officer ex- § 957.15 Conduct of the hearing. cept for good cause shown. The Judicial Officer shall have au- § 957.13 Hearings. thority to: (a) Hearings are held at 2101 Wilson (a) Administer oaths and affirma- Boulevard, Suite 600, Arlington, VA tions; 22201–3078, or other locations des- (b) Examine witnesses; ignated by the Judicial Officer. (c) Rule upon offers of proof, admissi- (b) A party may, not later than 7 bility of evidence, and matters of pro- days prior to the scheduled date of a cedure; hearing, file a request that such hear- (d) Order any pleading amended upon ing be held at a place other than that motion of a party at any time prior to designated in the Judicial Officer’s the close of the hearing; order relative to hearing. The party (e) Maintain discipline and decorum shall support his or her request with a and exclude from the hearing any per- statement outlining: son acting in an indecorous manner; (1) The evidence to be offered in such (f) Require the filing of briefs or place; memoranda of law on any matter upon (2) The names and addresses of the which the Judicial Officer is required witnesses who will testify; to rule; (3) The reasons why such evidence 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 (i) Render a final agency decision; FR 66051, Dec. 1, 1998] (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]

293

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00303 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 957.16 39 CFR Ch. I (7–1–06 Edition)

§ 957.16 Evidence. the name of the witness, the person be- (a) Except as otherwise provided in fore whom the deposition is to be taken the rules in this part, the rules of evi- and any other necessary information. dence governing civil proceedings in (c) Each witness testifying upon dep- matters not involving trial by jury in osition shall be duly sworn, and the ad- the courts of the United States shall verse party shall have the right to govern. However, such rules may be re- cross-examine. The questions and an- laxed to the extent that the Judicial swers together with all objections, Officer deems proper to insure a fair shall be reduced to writing and, unless hearing. waived by stipulation of the parties, (b) Testimony shall be under oath or shall be read to and subscribed by the affirmation and witnesses shall be sub- witness in the presence of the deposi- ject to cross-examination. tion officer who shall certify it in the (c) Agreed statements of fact may be usual form. The deposition officer shall received in evidence. file the testimony taken by deposition (d) Official notice or knowledge may as directed in the order. The deposition be taken of the types of matters of officer shall put the witness on oath. which judicial notice or knowledge All objections made at the time of ex- may be taken. amination shall be noted by the deposi- (e) The written statement of a com- tion officer and the evidence objected petent witness may be received in evi- to shall be taken subject to the objections. In lieu of participating in the dence: Provided, That such statement is relevant to the issues, that the witness oral examination, a party may trans- shall testify under oath at the hearing mit written interrogatories to the offi- that the statement is in all respects cer, who shall propound them to the true, and, in the case of expert wit- witness and record the answers ver- nesses, that the statement correctly batim. Objections to relevancy or ma- states his or her opinion or knowledge teriality of testimony, or to errors and concerning the matters in question. irregularities occurring at the oral examination 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 (f) Within the United States or with- order for the taking of the deposition in a territory or insular possession, will specify the time and place thereof, subject to the dominion of the United

294

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00304 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 957.20

States, depositions may be taken be- party may file a motion requesting cor- fore an officer authorized to administer rection of the transcript. Opposing oaths by the laws of the United States counsel shall, within such time as may or of the place where the examination be specified by the Judicial Officer, no- is held; within a foreign country, depo- tify the Judicial Officer in writing of sitions may be taken before a secretary his or her concurrence or disagreement of an embassy or legation, consul gen- with the requested corrections. Failure eral, vice consul or consular agent of to interpose timely objection to a pro- the United States, or any other person posed correction shall be considered to designated in the order for the taking be concurrence. Thereafter, the Judi- of a deposition. cial Officer shall by order specify the (g) Depositions may also be taken corrections to be made in the tran- and submitted on written interrog- script. The Judicial Officer on his or atories in substantially the same man- her own initiative may order correc- ner as depositions taken by oral exam- tions to be made in the transcript with ination. When a deposition is taken prompt notice to the parties of the pro- upon written interrogatories and cross- ceeding. Any changes ordered by the interrogatories, none of the parties Judicial Officer other than the agree- shall be present or represented, and no ment of the parties shall be subject to person, other than the witness, a steno- objection and exception. graphic reporter, and the officer shall 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 cally reported by a contract reporter of in the discretion of the Judicial Offi- the Postal Service under the super- cer. The Judicial Officer may also revision of the Judicial Officer. Argu- quire parties to any proceeding to sub- ment upon any matter may be excluded mit proposed findings of fact and con- from the transcript by order of the Ju- clusions of law with supporting rea- dicial Officer. A copy of the transcript sons. Unless given orally the date set shall be a part of the record and the for filing of proposed findings of fact sole official transcript of the pro- and conclusions of law shall be within ceeding. Copies of the transcript may 15 days after the delivery of the official be obtained by the Respondent from transcript to the Recorder who shall the reporter upon the payment of a notify both parties of the date of its re- reasonable price therefor. Copies of ceipt. The filing date for proposed find- parts of the official record other than ings shall be the same for both parties. the transcript may be obtained from If not submitted by such date, or un- the librarian of the Postal Service or less extension of time for the filing the Recorder. thereof is granted, they will not be in- (b) Changes in the official transcript cluded in the record or given consider- may be made only when they involve ation. errors affecting substance and then (b) Except when presented orally be- only in the manner herein provided. No fore the close of the hearing, proposed physical changes shall be made in or findings of fact shall be set forth in se- upon the official transcript, or copies rially numbered paragraphs and shall thereof, which have been filed with the state with particularity all evidentiary record. Within 10 days after the receipt facts in the record with appropriate ci- by any party of a copy of the official tations to the transcript or exhibits transcript, or any part thereof, the supporting the proposed findings. Each

295

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00305 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 957.21 39 CFR Ch. I (7–1–06 Edition)

proposed conclusion shall be separately § 957.26 Public information. stated. The Librarian of the Postal Service [36 FR 11574, June 16, 1971, as amended at 63 shall maintain for public inspection in FR 66051, Dec. 1, 1998] the Library copies of all final decisions. The Recorder maintains the § 957.21 Decision. complete official record of every pro- The Judicial Officer shall issue a ceeding. final agency decision. Such decision [36 FR 11574, June 16, 1971, as amended at 63 shall include findings and conclusions, FR 66051, Dec. 1, 1998] with the reasons therefor, upon all the material issues of fact or law presented § 957.27 Suspension. on the record, and the appropriate (a) Any firm or individual suspended order. under chapter 3, section 7 of the Postal Service Purchasing Manual who be- § 957.22 Motion for reconsideration. lieves that the suspension has not been Within 10 days from the date thereof, in accordance with the provisions or such longer period as may be fixed thereof, or with applicable laws or reg- by the Judicial Officer, either party ulations, may appeal to the Judicial may file a motion for reconsideration Officer for a review of the suspension. of the final agency decision. Each mo- (b) Any such appeal shall be ad- tion for reconsideration shall be ac- dressed to the Judicial Officer through companied by a brief clearly setting the Vice President who ordered the forth the points of fact and of law re- suspension within 20 days of the date lied upon in support of said motion. upon which the respondent has been notified of the suspension. Such appeal § 957.23 Modification or revocation of shall concisely and in the manner of a orders. pleading set forth the grounds upon A party against whom an order of de- which the suspension is contested and barment has been issued may file an may be supported by a brief and such application for modification or revoca- evidence as the respondent may desire tion thereof. The Recorder shall trans- to submit. mit a copy of the application to the (c) Should the respondent desire oral General Counsel, who shall file a writ- argument or a hearing before the Judi- ten reply. A copy of the reply shall be cial Officer in connection with the ap- sent to the applicant by the Recorder. peal, application therefor shall be in- Thereafter an order granting or deny- cluded in the appeal. In the event that ing such application will be issued by the Judicial Officer grants the respond- the Judicial Officer. ent’s application for a hearing the notice of suspension and the appeal shall [36 FR 11574, June 16, 1971, as amended at 63 constitute the pleadings defining the FR 66051, Dec. 1, 1998] issues therein and the hearing shall be regulated in accordance with the rules § 957.24 Computation of time. in this part concerning debarment pro- A designated period of time under the ceedings. rules in this part excludes the day the (d) The decision of the Judicial Offi- period begins, and includes the last day cer in any appeal shall constitute the of the period unless the last day is a final agency determination of the Saturday, Sunday, or legal holiday, in issues presented thereby. Either party which event the period runs until the thereto may, however, file a motion for close of business on the next business reconsideration thereof, in accordance day. with the provisions of § 957.22. [36 FR 11574, June 16, 1971, as amended at 41 § 957.25 Official record. FR 19309, May 12, 1976; 63 FR 66051, Dec. 1, The transcript of testimony together 1998] with all pleadings, orders, exhibits, briefs, and other documents filed in the § 957.28 Ex parte communications. proceeding shall constitute the official The provisions of 5 U.S.C. 551(14), record of the proceeding. 556(d) and 557(d) prohibiting ex parte

296

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00306 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 958.4

communications are made applicable mination. The Petition, signed by the to proceedings under these rules of Petitioner or his attorney, shall be practice. filed by sending the Petition via certified mail to the postmaster who [42 FR 5358, Jan. 28, 1977] issued the Determination, or by otherwise delivering it to the postmaster’s PART 958—RULES OF PRACTICE IN office. The Petition must be filed with- PROCEEDINGS RELATIVE TO THE in twenty days (Sundays and holidays REFUSAL TO PROVIDE POST OF- included) after the date on which the FICE BOX OR CALLER SERVICE Petitioner received the Determination. AND THE TERMINATION OF POST The postmaster shall immediately for- OFFICE BOX OR CALLER SERV- ward two copies of the Petition to the ICE Recorder, Judicial Officer Department, U.S. Postal Service, 2101 Wilson Boule- Sec. vard, Suite 600, Arlington, VA 22201– 958.1 Authority for rules. 3078. 958.2 Scope of rules. (b) Notice of hearing. On receipt of the 958.3 Petition; notice of hearing; answer; Petition, the Recorder shall schedule a summary judgment. hearing on a date not later than 30 958.4 Hearings. days after the date of receipt. A Notice 958.5 Election as to hearing. of Hearing shall be sent to the Peti- 958.6 Default. 958.7 Presiding officers. tioner. A copy of the Notice of Hearing 958.8 Proposed findings of fact and conclu- and the Petition shall be sent to the sions of law. General Counsel of the U.S. Postal 958.9 Initial decision. Service. 958.10 Appeal. (c) Answer. The General Counsel of 958.11 Final agency decision. the Postal Service shall file an Answer 958.12 Compromise and informal disposi- to the Petition within fifteen days tion. 958.13 Petition to revoke, amend, or modify. after the date the General Counsel re- 958.14 Ex parte communications. ceived a copy of the Petition from the Recorder. AUTHORITY: 39 U.S.C. 204, 401. (d) Summary judgment. Upon motion SOURCE: 36 FR 11578, June 16, 1971, unless of either the General Counsel or the otherwise noted. Petitioner, or on his or her own initiative, the presiding officer may find § 958.1 Authority for rules. that the Petition and Answer present The Judicial Officer promulgates the no genuine or material issues of fact rules in this part pursuant to authority requiring an evidentiary hearing and delegated by the Postmaster General. may thereupon render an initial decision granting or dismissing the Peti- § 958.2 Scope of rules. tion. The initial decision shall become The rules in this part shall be appli- the final agency decision if a timely cable to cases in which a postmaster appeal is not taken. has issued a Determination denying an application for post office box or caller [46 FR 62847, Dec. 29, 1981, as amended at 63 FR 66052, Dec. 1, 1998; 67 FR 62179, Oct. 4, service, or terminating the box or call- 2002] er service being provided to a customer, and in which a Petition in oppo- § 958.4 Hearings. sition to that Determination has been Hearings are held at 2101 Wilson Bou- filed. levard, Suite 600, Arlington, VA 22201– [46 FR 62847, Dec. 29, 1981] 3078, or such other location as may be designated by the presiding officer. Not § 958.3 Petition; notice of hearing; an- later than 5 days prior to the date fixed swer; summary judgment. for the hearing, a party may file a re- (a) Petition. Any applicant or cus- quest that a hearing be held to receive tomer who receives a postmaster’s De- evidence in his behalf at a place other termination may oppose it by filing, in than that designated for hearing in the triplicate, a written Petition stating notice. He shall support his request his reasons for opposing the Deter- with a statement outlining: (a) The

297

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00307 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 958.5 39 CFR Ch. I (7–1–06 Edition)

evidence to be offered in such place; (b) assign cases to Administrative Law the names and addresses of the wit- Judges by rotation so far as prac- nesses who will testify; (c) the reasons ticable. The Judicial Officer may, for why such evidence cannot be produced good cause shown, preside at the recep- at Arlington, VA. The presiding officer tion of evidence in proceedings where shall give consideration to the conven- expedited hearings are requested by ei- ience and necessity of the parties and ther party. When the Judicial Officer the relevancy of the evidence to be of- presides at the hearing, he shall, in his fered. sole discretion, render a tentative or [36 FR 11578, June 16, 1971, as amended at 38 final decision after the conclusion of FR 17217, June 29, 1973; 63 FR 66052, Dec. 1, the hearing. Exceptions may be filed to 1998] a tentative decision in accordance with § 958.10. § 958.5 Election as to hearing. If both parties so elect, they may [36 FR 11578, June 16, 1971, as amended at 38 waive an oral hearing and submit the FR 20263, July 30, 1973; 42 FR 30504, June 15, matter for decision on the basis of the 1977] appeal and answer, with the approval § 958.8 Proposed findings of fact and of the presiding officer and subject to conclusions of law. the right of the presiding officer to require the parties to furnish such fur- Unless otherwise ordered by the pre- ther evidence or such briefs as the presiding officer, proposed findings of fact siding officer may deem necessary. The and conclusions of law and supporting request to waive oral hearing shall be arguments shall be submitted orally or mailed to the presiding officer not in writing at the conclusion of the later than 10 days prior to the date set hearing. for the hearing. § 958.9 Initial decision. § 958.6 Default. Unless given orally at the conclusion If a person who has not waived oral of the hearing, the Administrative Law hearing fails, without notice or with- Judge shall render an initial decision out adequate cause, satisfactory to the as expeditiously as practicable fol- presiding officer, to appear at the hear- lowing the conclusion of the hearing, ing, the presiding officer shall issue an and the receipt of the proposed find- order dismissing the appeal. If no pro- ings, if any. The initial decision shall test to such order of dismissal is re- become the final agency decision if a ceived within 10 days from the date of timely appeal is not taken. issuance of the order, such order shall become final. Any protest to the order § 958.10 Appeal. of dismissal received within 10 days from the date of its issuance shall be Either party may file exceptions in a given such consideration as the pre- brief on appeal to the Judicial Officer siding officer deems to be warranted by within 5 days after receipt of the ini- the facts and circumstances alleged in tial or tentative decision unless addi- the protest. An order of dismissal tional time is granted. A reply brief issued under this section by an Admin- may be filed within 5 days after the re- istrative Law Judge may be appealed ceipt of the appeal brief by the oppos- to the Judicial Officer within 10 days ing party. from the date of the order. § 958.11 Final agency decision. [36 FR 11578, June 16, 1971, as amended by 42 FR 30504, June 15, 1977] The Judicial Officer shall render a final agency decision or he shall refer § 958.7 Presiding officers. the matter to the Postmaster General The presiding officer at any hearing or the Deputy Postmaster General for shall be an Administrative Law Judge such final decision. The decision shall qualified in accordance with law, or the be served upon the parties and upon Judicial Officer (39 U.S.C. 204). The the postmaster at the office where the Chief Administrative Law Judge shall box is located.

298

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00308 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 959.4

§ 958.12 Compromise and informal dis- 959.23 Decisions. position. 959.24 Exceptions to initial decision or tentative decision. Nothing in these rules precludes the 959.25 Judicial Officer. compromise, settlement, and informal 959.26 Motion for reconsideration. disposition of proceedings initiated 959.27 Modification or revocation of orders. under these rules at any time prior to 959.28 Computation of time. the issuance of the final agency deci- 959.29 Official record. sion. 959.30 Public information. 959.31 Ex parte communications. § 958.13 Petition to revoke, amend, or modify. AUTHORITY: 39 U.S.C. 204, 401; 39 CFR A party against whom an order has 224.1(c)(6)(ii)(D). been issued may file a petition for the SOURCE: 39 FR 33213, Sept. 16, 1974, unless revocation, amendment or modifica- otherwise noted. tion thereof. The Recorder shall transmit a copy of the petition to the Gen- § 959.1 Authority for rules. eral Counsel, who may file a written These rules are issued by the Judicial reply. A copy of the reply shall be sent Officer of the U.S. Postal Service pur- to the petitioner by the Recorder. suant to authority delegated by the Thereafter an order granting or deny- Postmaster General. ing such application will be issued by the Judicial Officer. § 959.2 Scope of rules. [36 FR 11578, June 16, 1971, as amended at 63 These rules apply to all Postal Serv- FR 66052, Dec. 1, 1998] ice proceedings in which part 310 of § 958.14 Ex parte communications. this title authorizes appeals to the Ju- dicial Officer from demands for postage The provisions of 5 U.S.C. 551(14), for matter carried in violation of the 556(d) and 557(d) prohibiting ex parte Private Express Statutes, and in pro- communications are made applicable ceedings to revoke, as to any person, to proceedings under these rules of the suspension of provisions of the Pri- practice. vate Express Statutes in accordance [42 FR 5358, Jan. 28, 1977] with part 320 of this title. PART 959—RULES OF PRACTICE IN § 959.3 Office, business hours. PROCEEDINGS RELATIVE TO THE The offices of the officials mentioned PRIVATE EXPRESS STATUTES in these rules are located at 2101 Wil- son Boulevard, Suite 600, Arlington, VA Sec. 22201–3078 and are open Monday 959.1 Authority for rules. through Friday from 8:15 a.m. to 4:45 959.2 Scope of rules. p.m. 959.3 Office, business hours. 959.4 Demands for payment of postage. [63 FR 66052, Dec. 1, 1998] 959.5 Appeals from demands. 959.6 Revocations of suspension. § 959.4 Demands for payment of post- 959.7 Notice of hearing. age. 959.8 Service of petition filed under § 959.6. 959.9 Filing documents for the record. Final demands for payment of post- 959.10 Default. age will be accompanied by a copy of 959.11 Amendment of pleadings. these rules and will: 959.12 Continuances and extensions. 959.13 Hearings. (a) State that the demand is final un- 959.14 Change of place of hearings. less appealed under these rules within 959.15 Appearances. 15 days after receipt of the demand; 959.16 Presiding officers. (b) Describe the transaction on which 959.17 Evidence. the demand is based and the provisions 959.18 Subpoenas. of law or regulation alleged to have 959.19 Witness fees. 959.20 Depositions. been violated; and 959.21 Transcript. (c) State the manner in which the 959.22 Proposed findings and conclusions. amount of the demand is computed.

299

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00309 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 959.5 39 CFR Ch. I (7–1–06 Edition)

§ 959.5 Appeals from demands. explaining each of the allegations set forth in the petition. (a) A party upon whom a demand for postage has been made may appeal (3) Any facts alleged in the petition from the demand by filing a petition, which are not denied, or which are ex- in triplicate, with the Recorder, Judi- pressly admitted in the answer, may be cial Officer Department, within 15 days considered as proved, and no further after receipt of the demand. evidence regarding these facts need be adduced at the hearing. (b) The petition shall: (1) Be signed personally by an indi- (4) The answer shall be signed person- vidual petitioner, by one of the part- ally by an individual respondent, or in ners of a partnership, or by an officer the case of a partnership, by one of the of a corporation or association; partners, or, in the case of a corporation or association, by an officer there- (2) State the reasons why the person of. filing the petition (designated the ‘‘Petitioner’’ in these rules) believes (5) The answer shall set forth the re- the demand 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. § 959.7 Notice of hearing. [39 FR 33213, Sept. 16, 1974, as amended at 63 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

300

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00310 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 959.11

the respondent or respondent’s agent presiding officer shall receive peti- and forwarded to the Recorder, to be- tioner’s evidence and render an initial come a part of the official record. decision. (b) If, after 5 days, the postmaster or the postmaster’s designee, can find no [39 FR 33213, Sept. 16, 1974, as amended at 63 FR 66052, Dec. 1, 1998] person to accept service of the notice of hearing and petition pursuant to § 959.11 Amendment of pleadings. paragraph (a) of this section, the notice and copy of the petition may be deliv- (a) Amendments proposed prior to ered in the usual manner as other mail the hearing shall be filed with the Re- addressed to the respondent. A state- corder. Amendments proposed there- ment, showing the time and place of after shall be filed with the presiding delivery, signed by the postal employee officer. who delivered the notice of hearing and (b) By consent of the parties, a plead- petition shall be forwarded to the Re- ing may be amended at any time. Also, corder and such statement shall con- a party may move to amend a pleading stitute evidence of service. at any time prior to the close of the [39 FR 33213, Sept. 16, 1974, as amended at 63 hearing and, provided that the amend- FR 66052, Dec. 1, 1998] ment is reasonably within the scope of the proceeding initiated by the peti- § 959.9 Filing documents for the tion, the presiding officer shall make record. such ruling on the motion as he or she (a) Each party shall file with the Re- deems fair and equitable to the parties. corder pleadings, motions, orders and (c) When issues not raised by the other documents for the record. The pleadings, but reasonably within the Recorder shall cause copies to be deliv- scope of the proceedings initiated by ered promptly to other party(ies) to the petition, are tried by express or im- the proceeding and to the presiding of- plied consent of the parties, they shall ficer. be treated in all respects as if they had (b) The parties shall submit three been raised in the pleadings. Such copies of all documents unless other- amendments as may be necessary to wise ordered by the presiding officer. make the pleadings conform to the evi- One copy shall be signed as the origi- dence, and to raise such issues, shall be nal. allowed at any time upon the motion of (c) Documents shall be dated and any party. 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 before such date. The date of filing amendment of the pleadings would shall be entered thereon by the Re- prejudice the objecting party on the corder. merits, the presiding officer may allow the amendment and may grant a con- [39 FR 33213, Sept. 16, 1974, as amended at 63 tinuance to enable the objecting party FR 66052, Dec. 1, 1998] to rebut the evidence presented. § 959.10 Default. (e) The presiding officer may, upon 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 thereafter issue an order without further no- and which are relevant to any of the tice to the respondent. issues involved. (b) If the respondent files an answer [39 FR 33213, Sept. 16, 1974, as amended at 63 but fails to appear at the hearing, the FR 66052, Dec. 1, 1998]

301

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00311 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 959.12 39 CFR Ch. I (7–1–06 Edition)

§ 959.12 Continuances and extensions. (1) Administer oaths and affirma- Continuances and extensions will not tions; be granted by the presiding officer ex- (2) Examine witnesses; cept for good cause found. (3) Rule upon offers of proof, admissibility of evidence and matters of proce- § 959.13 Hearings. dure; Hearings are held at 2101 Wilson Bou- (4) Order any pleading amended upon levard, Suite 600, Arlington, VA 22201– motion of a party at any time prior to 3078, or other locations designated by the close of the hearing; the presiding officer. (5) Maintain discipline and decorum and exclude from the hearing any per- [63 FR 66052, Dec. 1, 1998] son acting in an indecorous manner; § 959.14 Change of place of hearings. (6) Require the filing of briefs or memoranda of law on any matter upon Not later than the date fixed for the which he or she is required to rule; filing of the answer, a party may file a (7) Order prehearing conferences for written request that a hearing be held the purpose of settlement or sim- at a place other than that designated plification of issues by the parties; in the notice. The party shall support (8) Order the proceeding reopened at the request with a statement outlining: any time prior to his or her decision (a) The evidence to be offered in such for the receipt of additional evidence; place; and, (b) The names and addresses of the (9) Render an initial decision if the witnesses who will testify; and, presiding officer is an Administrative (c) The reasons why such evidence Law Judge, which becomes the final de- cannot be produced at Arlington, VA. 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 (a) Except as otherwise provided in heard in person or by attorney. these rules, the rules of evidence gov- (b) An attorney may practice before erning civil proceedings in matters not the Postal Service in accordance with involving trial by jury in the District the rules in part 951 of this title. courts of the United States shall gov- (c) When a respondent is represented ern. However, such rules may be re- by an attorney, all pleadings and other laxed to the extent that the presiding papers subsequent to the initial peti- officer deems proper to insure a fair tion shall be mailed to the attorney. hearing. The presiding officer shall ex- (d) A respondent must promptly file a clude irrelevant, immaterial or repeti- notice of change of attorney. tious evidence. (b) Testimony shall be under oath or § 959.16 Presiding officers. affirmation and witnesses shall be sub- (a) The presiding officer shall be ei- ject to cross-examination. ther an Administrative Law Judge (c) Agreed statements of fact may be qualified in accordance with law, or the received into evidence. Judicial Officer. The Chief Administra- (d) Official notice or knowledge may tive Law Judge shall assign cases to be taken of the types of matters of Administrative Law Judges upon rota- which judicial notice or knowledge tion so far as practicable. The Judicial may be taken. Officer may, for good cause found, pre- (e) The written statement of a com- side at the reception of evidence in pro- petent witness may be received into ceedings upon request of either party. evidence provided that such statement (b) The presiding officer shall have is relevant to the issues, that the wit- authority to: ness shall testify under oath at the

302

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00312 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 959.20

hearing that the statement is in all re- the right to cross-examine. The ques- spects true, and, in the case of expert tions and answers, together with all witnesses, that the statement correctly objections, shall be reduced to writing states his or her opinion or knowledge and, unless waived by stipulation of concerning the matters in question. the parties, shall be read to and sub- (f) A party who objects to the admis- scribed by the witness in the presence sion of evidence shall make a brief of the deposition officer who shall cer- statement of the grounds for the objec- tify it in the usual form. The deposition. Formal exceptions to the rulings tion officer shall file the testimony of the presiding officer are unneces- taken by deposition as directed in the sary. order. All objections made at the time of examination shall be noted by the [39 FR 33213, Sept. 16, 1974, as amended at 63 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 relevancy or materiality of the ques- [39 FR 33213, Sept. 16, 1974, as amended at 56 tions or answers, in the oath or affir- FR 55825, Oct. 30, 1991] mation, or in the conduct of the parties, and errors of any kind which § 959.19 Witness fees. might be obviated, cured or removed if The Postal Service does not pay fees promptly presented, are waived unless and expenses for a respondent’s wit- timely objection is made at the taking nesses or for depositions requested by a of the deposition. respondent. (d) At the hearing, any part or all of the deposition may be offered into evi- § 959.20 Depositions. dence by any party who was present or (a) Not later than 5 days after the fil- represented at the taking of the deposi- ing of respondent’s answer, any party tion or who had notice thereof. If the may file an application with the Re- deposition is not offered and received corder for the taking of testimony by into evidence, it shall not be consid- deposition. In support of such applica- ered as a part of the record. The admis- tion, the applicant shall submit under sibility of depositions or parts thereof oath or affirmation, a statement con- shall be governed by the rules of evi- taining the reasons why such testi- dence. mony should be taken by deposition, (e) The party requesting the deposi- the time and place, and the name and tion shall pay all fees required to be address of the witness whose deposition paid to witnesses and the deposition of- is desired, the subject matter of the ficer, and shall provide an original and testimony of each witness, its rel- one copy thereof for the official record, evancy, and the name and address of and shall serve one copy upon the op- the person before whom the deposition posing party. is to be taken. (f) Within the United States, or with- (b) If the application be granted, the in a territory or possession subject to order shall specify the time and place the dominion of the United States, thereof, the name of the witness, the depositions may be taken before an of- person before whom the deposition is ficer authorized to administer oaths by to be taken, and any other necessary the laws of the United States or of the information. place where the examination is held; (c) Each deponent shall first be duly within a foreign country, depositions sworn, and the adverse party shall have may be taken before a secretary of an

303

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00313 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 959.21 39 CFR Ch. I (7–1–06 Edition)

embassy or legation, consul general, be specified by the presiding officer, vice consul or consular agent of the notify the presiding officer in writing United States, or any other person des- of his or her concurrence or disagree- ignated in the order for the taking of ment with the requested corrections. the deposition. Failure to interpose timely objection (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 § 959.21 Transcript. hearing or indicates in the answer that 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,

304

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00314 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 959.24

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

305

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00315 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 959.25 39 CFR Ch. I (7–1–06 Edition)

§ 959.25 Judicial Officer. § 959.29 Official record. The Judicial Officer is authorized (a) The transcript of testimony together to act as presiding officer at hearings, with all pleadings, orders, exhibits, (b) to render tentative decisions, (c) to briefs and other documents filed in the render final decisions of the Postal proceedings shall constitute the offi- Service, (d) to refer the record in any cial record of the proceeding. proceedings to the Postmaster General or the Deputy Postmaster General who § 959.30 Public information. will make the final decision of the The Librarian of the Postal Service Postal Service, and (e) to revise or maintains for public inspection in the amend these rules of practice. The en- Library copies of all initial, tentative tire official record will be considered and final decisions of the Postal Serv- before a final decision of the Postal ice. The Recorder maintains the com- Service is rendered. Before rendering a plete official record of every pro- final decision of the Postal Service, the ceeding. 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 forth the points of fact and of law re- PART 960—RULES RELATIVE TO IM- lied 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. 960.6 Allowable fees and expenses. within 10 days after filing, or such 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 960.13 Filing and service of documents. last day is a Saturday, Sunday, or legal 960.14 Answer to application. holiday, in which event the period runs 960.15 Reply. until the close of business on the next 960.16 Comments by other parties. business day. 960.17 Settlement.

306

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00316 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 960.4

960.18 Further proceedings. § 960.3 Proceedings covered. 960.19 Decision. 960.20 Further Postal Service review. (a) The Act applies to adversary adju- 960.21 Judicial review. dications conducted by the Postal 960.22 Payment of award. Service. These are: (1) Adjudications under 5 U.S.C. 554 AUTHORITY: 5 U.S.C. 504 (c)(1); 39 U.S.C. 204, 401 (2). in which the position of the Postal Service is presented by an attorney or SOURCE: 46 FR 45945, Sept. 16, 1981, unless other representative who enters an ap- otherwise noted. pearance and participates in the proceeding (for the Postal Service, the Subpart A—General Provisions types of proceedings generally covered are proceedings relative to false rep- § 960.1 Purpose of these rules. resentation and cease and desist orders The Equal Access to Justice Act, 5 and mailability under chapter 30 of U.S.C. 504 (called ‘‘the Act’’ in this title 39, U.S.C., with the exception of part), provides for the award of attor- proceedings under 39 U.S.C. 3008); and ney fees and other expenses to eligible (2) Appeals of decisions of con- individuals and entities who are parties tracting officers made pursuant to sec- to certain administrative proceedings tion 6 of the Contract Disputes Act of (called ‘‘adversary adjudications’’) be- 1978 (41 U.S.C. 605) before the Postal fore the Postal Service. An eligible Service Board of Contract Appeals as party may receive an award when it provided in section 8 of that Act. (41 prevails over the Postal Service, unless U.S.C. 607). the Postal Service’s position was sub- (b) The Postal Service may also des- stantially justified or special cir- ignate a proceeding not listed in para- cumstances make an award unjust. The graph (a) of this section as an adver- rules in this part describe the parties sary adjudication for purposes of the eligible for awards and the proceedings Act by so stating in an order initiating that are covered. They also explain the proceeding or designating the mat- how to apply for awards, and the proce- ter for hearing. The failure to des- dures and standards that the Postal ignate a proceeding as an adversary ad- Service will use to make them. judication shall not preclude the filing [46 FR 45945, Sept. 16, 1981, as amended at 52 of an application by a party who be- FR 6797, Mar. 5, 1987] lieves the proceeding is covered by the Act; whether the proceeding is covered § 960.2 When the Act applies. will then be an issue for resolution in proceedings on the application. The Act applies to any adversary adjudication pending or commenced be- (c) If a proceeding includes both mat- fore the Postal Service on or after Au- ters covered by the Act and matters gust 5, 1985. It also applies to any ad- specifically excluded from coverage, versary adjudication commenced on or any award made will include only fees after October 1, 1984, and finally dis- and expenses related to covered issues. posed of before August 5, 1985, provided [46 FR 45945, Sept. 16, 1981, as amended at 52 that an application for fees and ex- FR 6798, Mar. 5, 1987; 67 FR 62179, Oct. 4, 2002] penses, as described in subpart B of these rules, has been filed with the § 960.4 Eligibility of applicants. Postal Service within 30 days after Au- (a) To be eligible for an award of at- gust 5, 1985, and to any adversary adju- torney fees and other expenses under dication pending on or commenced on the Act, the applicant must be a party or after October 1, 1981, in which an ap- to the adversary adjudication for which plication for fees and other expenses it seeks an award. The term ‘‘party’’ is was timely filed and was dismissed for defined in 5 U.S.C. 551(3). The applicant lack of jurisdiction. must show by clear and convincing evi- [52 FR 6797, Mar. 5, 1987] dence that it meets all conditions of eligibility set out in this subpart and

307

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00317 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 960.5 39 CFR Ch. I (7–1–06 Edition)

in subpart B and must submit addi- a majority of the voting shares or tional information to verify its eligi- other interest, will be considered an af- bility upon order by the adjudicative filiate for purposes of this part, unless officer. the adjudicative officer determines (b) The types of eligible applicants that such treatment would be unjust are as follows: and contrary to the purposes of the Act (1) An individual with a net worth of in light of the actual relationship be- not more than $2 million; tween the affiliated entities. In addi- (2) The sole owner of an unincor- tion, the adjudicative officer may de- porated business who has a net worth termine that financial relationships of of not more than $7 million, including the applicant other than those de- both personal and business interests, scribed in this paragraph constitute and not more than 500 employees; special circumstances that would make (3) A charitable or other tax-exempt 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 of not more than $7 million and not (a) A prevailing applicant may re- more than 500 employees. ceive an award for fees and expenses in- (c) For the purposes of eligibility, the curred in connection with a proceeding, net worth and number of employees of including expenses and fees incurred in an applicant shall be determined as of filing for an award under the Act, or in the date the proceeding was initiated, a significant and discrete substantive which in proceedings before the Board portion of the proceeding, unless the of Contract Appeals is the date the ap- position of the agency over which the plicant files its appeal to the Board. applicant has prevailed was substan- (d) An applicant who owns an unin- tially justified. The position of the corporated business will be considered agency includes in addition to the posi- as an ‘‘individual’’ rather than a ‘‘sole tion taken by the agency in the adver- owner of an unincorporated business’’ sary adjudication, the action or failure if the issues on which the applicant to act by the agency upon which the prevails are related primarily to per- adversary adjudication is based. The sonal interests rather than to business burden of proof that an award should interests. not be made to an eligible prevailing (e) The employees of an applicant in- applicant is on Postal Service counsel. clude all persons who regularly per- (b) An award will be reduced or de- form services for remuneration for the nied if the applicant has unduly or un- applicant, under the applicant’s direc- reasonably protracted the proceeding tion and control. Part-time employees shall be included on a proportional or if special circumstances make the basis. award sought unjust. (f) The net worth and number of em- [46 FR 45945, Sept. 16, 1981, as amended at 52 ployees of the applicant and all of its FR 6798, Mar. 5, 1987] affiliates shall be aggregated to determine eligibility. Any individual, cor- § 960.6 Allowable fees and expenses. poration or other entity that directly (a) Awards will be based on rates cus- or indirectly controls or owns a major- tomarily charged by persons engaged ity of the voting shares or other inter- in the business of acting as attorneys, est of the applicant, or any corporation agents and expert witnesses, even if the or other entity of which the applicant services were made available without directly or indirectly owns or controls

308

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00318 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 960.9

charge or at a reduced rate to the ap- per hour, or such rate as prescribed by plicant. Attorney fees may not be re- 5 U.S.C. 504, in some or all of the types covered by parties appearing pro se in of proceedings covered by this part. postal proceedings. The Postal Service will conduct any (b) No award for the fee of an attor- rulemaking proceedings for this pur- ney or agent under these rules may ex- pose under the informal rulemaking ceed $125.00 per hour, or such rate as procedures of the Administrative Pro- prescribed by 5 U.S.C. 504. No award to cedure Act. compensate an expert witness may ex- (b) Any person may request the Post- ceed the highest rate at which the al Service to initiate a rulemaking pro- Postal Service pays expert witnesses. ceeding to increase the maximum rate However, an award may also include for attorney fees. The request should the reasonable expenses of the attor- identify the rate the person believes ney, agent, or witness as a separate the Postal Service should establish and item, if the attorney, agent or witness the types of proceedings in which the 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 [46 FR 45945, Sept. 16, 1981, as amended at 66 an employee of the applicant, the fully 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.

309

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00319 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 960.10 39 CFR Ch. I (7–1–06 Edition)

(b) The application shall also include (b) Ordinarily, the net worth exhibit a statement that the applicant’s net will be included in the public record of worth does not exceed $2 million (if an the proceeding. However, an applicant individual) or $7 million (for all other that objects to public disclosure of in- applicants, including their affiliates.) formation in any portion of the exhibit However, an applicant may omit this and believes there are legal grounds for statement if: withholding it from disclosure may (1) It attaches a copy of a ruling by submit that portion of the exhibit di- the Internal Revenue Service that it rectly to the adjudicative officer in a qualifies as an organization described sealed envelope labeled ‘‘Confidential in section 501(c)(3) of the Internal Rev- Financial Information’’, accompanied enue Code (26 U.S.C. 501(c)(3)) or, in the by a motion to withhold the informa- case of a tax-exempt organization not tion from public disclosure. The mo- required to obtain a ruling from the In- tion shall describe the information ternal Revenue Service on its exempt sought to be withheld and explain, in 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 wise, any request to inspect or copy also contain or be accompanied by a the exhibit shall be disposed of in ac- written verification under oath or cordance with the Postal Service’s es- under penalty of perjury that the infor- tablished procedures under the Free- mation provided in the application is dom of Information Act, part 265 of true and correct. 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 ap- any study, analysis, engineering re- plication a detailed exhibit showing port, test, project or similar matter, the net worth of the applicant and any for which an award is sought. A sepa- affiliates (as defined in § 960.4(f)) when rate itemized statement shall be sub- the proceeding was initiated. The ex- mitted for each professional firm or in- hibit may be in any form convenient to dividual whose services are covered by the applicant that provides full disclo- the application, showing the hours sure of the applicant’s and its affili- spent in connection with the pro- ates’ assets and liabilities and is suffi- ceeding by each individual, a descrip- cient to determine whether the appli- tion of the specific services performed, cant qualifies under the standards in the rate at which each fee has been this part. The adjudicative officer may computed, any expenses for which re- require an applicant to file additional imbursement is sought, the total information to determine its eligibility amount claimed, and the total amount for an award. paid or payable by the applicant or by

310

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00320 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 960.14

any other person or entity for the serv- on the basis of a compromise agree- ices provided. The adjudicative officer ment entered into between the parties; may require the applicant to provide or vouchers, receipts, or other substan- (6) In proceedings before the Board of tiation for any expenses claimed. In ad- Contract Appeals, the Board of Con- dition, the Board of Contract Appeals tract Appeals decision on quantum. may require an applicant to submit to When the Board decides only entitle- an audit by the Postal Service of its ment and remands the issue of quan- claimed fees and expenses. tum to the parties, the final disposi- (b) Where the case has been sustained tion occurs when the parties execute in part and denied in part or where the an agreement on quantum, or if the applicant has prevailed in only a sig- parties cannot agree on quantum and nificant and discrete substantive por- resubmit the quantum dispute to the tion of the case, the application must Board, when the Board issues a deci- be limited to fees and expenses allo- sion on quantum. cable to the portion of the case as to 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 Subpart C—Procedures for FR 6798, Mar. 5, 1987] Considering Applications § 960.12 When an application may be filed. § 960.13 Filing and service of documents. (a) An application may be filed whenever 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 pre- § 960.14 Answer to application. vailed, proceedings for the award of 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

311

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00321 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 960.15 39 CFR Ch. I (7–1–06 Edition)

the answer is based on any alleged shall be conducted as promptly as pos- facts not already in the record of the sible. Whether or not the position of proceeding, the Postal Service shall in- the agency was substantially justified clude with the answer either sup- shall be determined on the basis of the porting affidavits or a request for fur- entire administrative record that is ther proceedings under § 960.19. made in the adversary adjudication for which fees and other expenses are § 960.15 Reply. sought. Within 15 days after service of an an- (b) A request that the adjudicative swer, the applicant may file a reply. If officer order further proceedings under the reply is based on any alleged facts this section shall specifically identify not already in the record of the pro- the information sought or the disputed ceeding, the applicant shall include with the reply either supporting affida- issues and shall explain why the addi- vits or a request for further pro- tional proceedings are necessary to re- ceedings under § 960.19. solve the issues. [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 the applicant and Postal Service may § 960.19 Decision. 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 unless the adjudicative officer de- tion. The decision shall include written termines that the public interest re- findings and conclusions on the appli- quires such participation in order to cant’s eligibility and status as a pre- permit full exploration of matters vailing party, and an explanation of raised in the comments. the reasons for any difference between the amount requested and the amount § 960.17 Settlement. awarded. The decision shall also in- The applicant and the Postal Service clude, if at issue, findings on whether may agree on a proposed settlement of the Postal Service’s position was sub- the award before final action on the ap- stantially justified, whether the appli- plication, either in connection with a cant unduly protracted the pro- settlement of the underlying proceedings, or whether special cir- ceeding, or after the underlying pro- cumstances make an award unjust. If ceeding has been concluded. If a pre- the applicant has sought an award vailing party and Postal Service coun- against the Postal Service and another sel agree on a proposed settlement of agency, the decision shall allocate re- an award before an application has sponsibility for payment of any award been filed, the application shall be filed made between the Postal Service and with the proposed settlement. the other agency, and shall explain the reasons for the allocation made. § 960.18 Further proceedings. (b) The Board of Contract Appeals (a) Ordinarily, the determination of shall issue its decision on the applica- an award will be made on the basis of tion as promptly as possible after com- the written record. However, on re- pletion of proceedings on the applica- quest of either the applicant or Postal tion. Whenever possible, the decision Service counsel, or on his or her own shall be made by the same Administra- initiative, the adjudicative officer may tive Judge or panel that decided the order further proceedings, such as an contract appeal for which fees are informal conference, oral argument, sought. The decision shall be in the for- additional written submissions, or an mat described in paragraph (a) of this evidentiary hearing. Such further pro- section. ceedings shall be held only when necessary for full and fair resolution of the [46 FR 45945, Sept. 16, 1981, as amended at 52 issues arising from the application, and FR 6798, Mar. 5, 1987]

312

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00322 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 961.3

§ 960.20 Further Postal Service review. PART 961—RULES OF PRACTICE IN (a) Either the applicant or Postal PROCEEDINGS RELATIVE TO EM- Service counsel may seek review of the PLOYEE HEARING PETITIONS initial decision on the fee application, UNDER SECTION 5 OF THE DEBT in accordance with § 952.25 or § 953.14. If COLLECTION ACT neither the applicant nor the Postal Service counsel seeks review, the ini- Sec. tial decision on the application shall 961.1 Authority for rules. become a final decision of the Postal 961.2 Scope of rules. Service 30 days after it is issued. If re- 961.3 Definitions. view is taken, the Judicial Officer will 961.4 Employee petition for a hearing and supplement to petition. issue a final decision on the applica- 961.5 Effect of Petition filing. tion or remand the application to the 961.6 Filing, docketing and serving docu- adjudicative officer for further pro- ments; computation of time; representa- ceedings. tion of parties. (b) In Board of Contract Appeals pro- 961.7 Answer to Petition and Supplement to ceedings, either party may seek recon- Petition. sideration of the decision on the fee ap- 961.8 Hearing Official authority and responsibilities. plication in accordance with 39 CFR 961.9 Effect of Hearing Official’s decision; 955.30. motion for reconsideration. 961.10 Waiver of employee rights. [46 FR 45945, Sept. 16, 1981, as amended at 52 961.11 Ex parte communications. FR 6798, Mar. 5, 1987] AUTHORITY: 39 U.S.C. 204, 401; 5 U.S.C. § 960.21 Judicial review. 5514(a). A party other than the Postal Serv- SOURCE: 51 FR 1251, Jan. 10, 1986, unless ice may, within 30 days after a deter- otherwise noted. mination on the award is made, appeal the determination to the court of the § 961.1 Authority for rules. United States having jurisdiction to re- These rules are issued by the Judicial view the merits of the underlying deci- Officer pursuant to authority delegated sion of the agency adversary adjudica- by the Postmaster General. tion in accordance with 5 U.S.C. 504(c)(2). § 961.2 Scope of rules. The rules in this part apply to the [52 FR 6799, Mar. 5, 1987] hearing provided by section 5 of the § 960.22 Payment of award. Debt Collection Act of 1982, as amended, 5 U.S.C. 5514(a), on the Postal Serv- An applicant seeking payment of an ice’s determination of the existence or award shall submit to the Judicial Offi- amount of an employee debt to the cer a copy of the Postal Service’s final Postal Service, or of the terms of the decision granting the award, accom- employee’s debt repayment schedule. panied by a statement that the appli- In addition, these rules, as appropriate, cant will not seek review of the deci- apply to a hearing under section 5 of sion in the United States courts. Re- the Debt Collection Act when an Ad- quests for payment should be sent to: ministrative Law Judge or an Adminis- Judicial Officer, 2101 Wilson Boulevard, trative Judge in the Judicial Officer Suite 600, Arlington, VA 22201–3078. The Department is designated as the Hear- Judicial Officer shall submit certifi- ing Official for a creditor Federal agen- cation for payment to the Postal Data cy other than the Postal Service pursu- Center. The Postal Service will pay the ant to an agreement between the Post- amount awarded to the applicant with- al Service and that agency. in 60 days, unless judicial review of the award or of the underlying decision of § 961.3 Definitions. the adversary adjudication has been (a) Employee refers to a current em- sought by the applicant or any other ployee of the Postal Service or another party to the proceeding. Federal agency who is alleged to be in- [46 FR 45945, Sept. 16, 1981, as amended at 63 debted to the Postal Service or another FR 66052, Dec. 1, 1998] creditor Federal agency and whose

313

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00323 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 961.4 39 CFR Ch. I (7–1–06 Edition)

hearing under section 5 of the Debt the Postal Service’s ‘‘Notice of Invol- Collection Act is being conducted untary Administrative Salary Offsets under these rules. Under the Debt Collection Act.’’ (b) General Counsel refers to the Gen- (b) The hearing petition is to include eral Counsel of the Postal Service, and the following: includes a designated representative. (1) The words, ‘‘Petition for Hearing (c) Hearing Official refers to an Ad- Under the Debt Collection Act,’’ promi- ministrative Law Judge qualified to nently captioned at the top of the first hear cases under the Administrative page: Procedure Act, an Administrative (2) The name of the employee peti- Judge appointed under the Contract tioner and the employee’s work and Disputes Act of 1978, or any other home addresses, and work and home qualified person not under the control telephone numbers; or other address or supervision of the Postmaster Gen- and telephone number where the em- eral, who is designated by the Judicial Officer to conduct the hearing under ployee may be contacted about the section 5 of the Debt Collection Act of hearing proceedings; 1982, as amended, 5 U.S.C. 5514(a). (3) A statement of the date the em- (d) Judicial Officer refers to the Judi- ployee received the ‘‘Notice of Involun- cial Officer or Acting Judicial Officer tary Administrative Salary Offsets of the United States Postal Service. Under the Debt Collection Act,’’ and a (e) Notice of Involuntary Administrative copy of the Notice; Salary Offsets Under the Debt Collection (4) A statement indicating whether Act refers to the formal written notice the employee requests an oral hearing required by section 5 of the Debt Col- or a hearing based solely on written lection Act before involuntary collec- submissions; tion deductions can be taken from an (5) If the employee requests an oral employee’s salary. hearing, a statement of the evidence he (f) Postmaster/Installation Head refers or she will produce which makes an to the Postal Service official who is au- oral hearing necessary, including a list thorized under the Postal Service Em- of witnesses, with their addresses, ployee and Labor Relations Manual to whom the employee expects to call; the make the initial determination of em- proposed city for the hearing site, with ployee indebtedness and to issue the justification for holding the hearing in ‘‘Notice of Involuntary Administrative that city; and recommended alter- Salary Offsets Under the Debt Collec- native dates for the hearing; which tion Act.’’ should be within 40 days from filing the (g) Recorder refers to the Recorder, Petition; Judicial Officer Department, U.S. Post- (6) A statement of the grounds upon al Service, 2101 Wilson Boulevard, which the employee objects to the Suite 600, Arlington, VA 22201–3078. Postal Service’s determination of the [51 FR 1251, Jan. 10, 1986, as amended at 63 existence or amount of the debt, or to FR 66053, Dec. 1, 1998] the proposed offset schedule. This statement should identify and explain § 961.4 Employee petition for a hearing with reasonable specificity and brevity and supplement to petition. the facts, evidence, and legal argu- (a) If an employee desires a hearing, ments, if any, which the employee be- prescribed by section 5 of the Debt Col- lieves support his or her position; lection Act, on the Postal Service’s de- (7) Copies of all records in the em- termination of the existence or amount ployee’s possession which relate to the of a debt, or on the involuntary repay- debt; and ment terms proposed by the Postal (8) If an employee contends that the Service, the employee must file a writ- Postal Service’s proposed offset sched- ten, signed petition with the Recorder, ule would result in a severe financial Judicial Officer Department, U.S. Post- hardship on the employee and his or al Service, 2101 Wilson Boulevard, her spouse and dependents, an alter- Suite 600, Arlington, VA 22201–3078, on native offset schedule, and a statement or before the fifteenth (15th) calendar and supporting documents indicating day following the employee’s receipt of for the employee and his or her spouse

314

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00324 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 961.8

and dependents for the one year pre- the day the period begins, and includes ceding the Postal Service’s notice and the last day of the period unless the for the repayment period proposed by last day is a Saturday, Sunday, or legal the employee in his or her alternative holiday, in which event the period runs offset schedule, their total income until the close of business on the next from all sources; assets; liabilities; business day. number of dependents; and expenses for (d) Representation of parties. After the food, housing, clothing, transportation, filing of the Petition, further document medical care, and exceptional expenses, transmittals for, or communications if any. with, the Postmaster/Installation Head (c) The employee may, if necessary, or Postal Service shall be through file with the Recorder, additional information as a Supplement to the Peti- their representative, the General Coun- tion on or before the thirtieth (30th) sel, or, if an appropriate notice of ap- calendar day following the employee’s pearance is filed, the General Counsel’s receipt of the Postal Service’s ‘‘Notice designee. If a notice of appearance by of Involuntary Administrative Salary an attorney authorized to practice law Offsets Under the Debt Collection in any of the United States or the Dis- Act.’’ trict of Columbia or a territory of the 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 § 961.5 Effect of Petition filing. with the employee shall be made Upon receipt and docketing of the through his or her attorney rather employee’s Petition for a hearing, the than directly with the employee. Recorder will notify the Postmaster/In- § 961.7 Answer to Petition and Supple- stallation Head and the General Coun- ment to Petition. sel that the Petition has been filed and that pursuant to section 5 of the Debt If the employee’s Petition states rea- Collection Act, a timely-filed Petition sons to support the employee’s posi- for a hearing stays further collection tion, within 15 days from notice of the action. Petition, the General Counsel shall file an Answer to the Petition, and attach § 961.6 Filing, docketing and serving all available relevant records and docu- documents; computation of time; ments in support of the Postal Serv- representation of parties. ice’s claim, and a list of witnesses the (a) Filing. All documents relating to Postal Service intends to call if an oral the Debt Collection Act hearing pro- hearing is granted. If the employee ceedings must be filed by the employee files a Supplement to the Petition, the or the General Counsel with the Re- General Counsel, within ten (10) cal- corder. (Normal Recorder office busi- endar days from the filing of the Sup- ness hours are between 8:15 a.m. and plement with the Recorder must file 4:45 p.m., eastern standard or day-light any Supplemental Answer and records saving time as appropriate during the to support the position of the Postal year.) The Recorder will transmit a Service. copy of each document filed to the other party, and the original to the § 961.8 Hearing Official authority and Hearing Official. responsibilities. (b) Docketing. The Recorder will maintain a docket record of Debt Col- The Hearing Official shall provide a lection Act hearing petition pro- full and fair hearing. The proceedings ceedings and will assign each employee must be expedited to ensure issuance of Petition a docket number. After notifi- the final decision no later than 60 days cation of the docket number, the em- after the filing of the employee’s hear- ployee and General Counsel should ing Petition. The Hearing Official’s au- refer to it on any further filings re- thority includes, but is not limited to, garding the Petition. the following: (c) Time computation. A filing period (a) Ruling on all offers, motions or under the rules in this part excludes requests by the parties;

315

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00325 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 961.9 39 CFR Ch. I (7–1–06 Edition)

(b) Issuing any notices, orders or the Postal Service’s offset schedule, if memoranda to the parties concerning the employee: the hearing proceedings; (a) Files a Petition for hearing after (c) Using telephone conferences with the end of the 15-day period allowed by the parties to expedite the proceedings. the Act for filing the Petition, and fails A memorandum of a telephone con- to demonstrate to the satisfaction of ference will be transmitted to both par- the Hearing Official good cause for the ties; delay; (d) Determining if an oral hearing (b) Has received notice to appear at should be held; and setting the place, an oral hearing but fails to do so with- date and time for the hearing or the out showing circumstances beyond the taking of testimony by telephone con- employee’s control; ference; (c) Fails to file required submissions (e) Administering oaths or affirma- or to comply with orders of the Hear- tions to witnesses, and conducting the ing Official, and the failure makes it hearing in a manner to maintain dis- difficult or impossible to hold the hear- cipline and decorum while assuring ing or to issue the decision within the that relevant, reliable and probative statutory time; evidence is elicited on the issues in dis- (d) Files a withdrawal of his or her pute, but irrelevant, immaterial or rep- Petition for a hearing with the Re- etitious evidence is excluded; corder. (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 repayment schedule. It should also in- PART 962—RULES OF PRACTICE IN clude findings and reasons. PROCEEDINGS RELATIVE TO THE 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. be the final administrative determina- 962.1 Purpose. tion on the employee’s debt or repay- 962.2 Definitions. 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. eration will be allowed only in the dis- 962.9 Responsibilities and authority of pre- cretion of the Hearing Official. A mo- siding officer. 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.

316

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00326 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 962.3

962.19 Transcript of proceedings. the Judicial Officer to conduct a hear- 962.20 Initial decision. ing authorized by 31 U.S.C. 3803. 962.21 Appeal of initial decision to judicial (j) Recorder refers to the Recorder of officer. the United States Postal Service, 2101 962.22 Form and filing of documents. Wilson Boulevard, Suite 600, Arlington, 962.23 Service of notice of hearing, other VA 22201–3078. documents. 962.24 Computation of time. (k) Representative refers to an attor- 962.25 Continuances and extensions. ney or other advocate. 962.26 Settlement. (l) Respondent refers to any person al- 962.27 Limitations. leged to be liable for a civil penalty or assessment under 31 U.S.C. 3802. AUTHORITY: 31 U.S.C. Chapter 38; 39 U.S.C. 401. (m) Reviewing Official refers to the General Counsel of the Postal Service SOURCE: 52 FR 12904, Apr. 20, 1987, unless or any designee within the Law Depart- otherwise noted. ment who serves in a position for which the rate of basic pay is not less § 962.1 Purpose. than the minimum rate payable under This part establishes the procedures section 5376 of title 5 of the United governing the hearing and appeal States Code. rights of any person alleged to be liable for civil penalties and assessments [52 FR 12904, Apr. 20, 1987, as amended at 63 FR 66053, Dec. 1, 1998; 67 FR 62179, Oct. 4, under the Program Fraud Civil Rem- 2002] edies Act of 1986 (codified at 31 U.S.C. 3801–3812). § 962.3 Petition for hearing. § 962.2 Definitions. Within 30 days of receiving the Post- al Service’s Complaint, issued pursuant (a) Attorney refers to an individual to § 273.8 of this title, alleging liability authorized to practice law in any of the under 31 U.S.C. 3802, the Respondent United States or the District of Colum- may request a hearing under the Pro- bia or a territory of the United States. gram Fraud Civil Remedies Act by fil- (b) Complaint refers to the adminis- ing a written Hearing Petition with the trative Complaint served by the Re- Recorder in accordance with § 962.22(b). viewing Official on a Respondent pur- The Respondent’s Petition must in- suant to § 273.8 of this title. clude the following: (c) Initial Decision refers to the writ- (a) The words ‘‘Petition for Hearing ten decision which the Presiding Offi- Under the Program Fraud Civil Rem- cer is required by § 962.20 to render, and edies Act,’’ or other words reasonably includes a revised initial decision identifying it as such; issued following a remand. (b) The name of the Respondent as (d) Investigating Official refers to the well as his or her work and home ad- Inspector General of the United States dresses, and work and home telephone Postal Service or any designee within numbers; or other address and tele- the Office of the Inspector General. phone number where the Respondent (e) Judicial Officer refers to the Judi- may be contacted about the hearing cial Officer or Acting Judicial Officer proceedings; of the United States Postal Service or (c) A statement of the date the Re- for purposes other than specified in spondent received the Complaint issued § 962.21 any designee within the Judi- by the Reviewing Official; cial Officer Department. (d) A statement indicating whether (f) Party refers to the Postal Service the Respondent requests an oral hear- or the Respondent. ing or a decision on the record; (g) Person refers to any individual, (e) If the Respondent requests an oral partnership, corporation, association, hearing, a statement proposing a city or private organization. for the hearing site, with justification (h) Postmaster General refers to the for holding the hearing in that city, as Postmaster General of the United well as recommended dates for the States or his designee. hearing; and (i) Presiding Officer refers to an Ad- (f) A statement admitting or denying ministrative Law Judge designated by each of the allegations of liability

317

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00327 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 962.4 39 CFR Ch. I (7–1–06 Edition)

made in the Complaint, and stating containing the information set forth in any defense on which the Respondent paragraph (b) of this section. intends to rely. (b) The Notice of Hearing required by paragraph (a) of this section must in- § 962.4 Referral of complaint. clude: (a) If the Respondent fails to request (1) The tentative hearing site, date, a hearing within the specified period, and time; the Reviewing Official shall transmit (2) The legal authority and jurisdic- the Complaint to the Judicial Officer tion under which the hearing is to be for referral to a Presiding Officer, who held; shall issue an initial decision based (3) The nature of the hearing; upon the information contained in the (4) The matters of fact and law to be Complaint. decided; (b) If the Respondent files a Hearing (5) A description of the procedures Petition, the Reviewing Official, upon governing the conduct of the hearing; receiving a copy of the Petition, shall and 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; (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, in accordance with (h) To submit written briefs, pro- § 962.23, upon the Respondent and the posed findings of fact, and proposed Reviewing Official, a Notice of Hearing conclusions of law.

318

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00328 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 962.11

§ 962.9 Responsibilities and authority ment should be imposed, and if so, the of presiding officer. amount of such penalty or assessment. (a) The Presiding Officer shall conduct a fair and impartial hearing, avoid § 962.10 Prehearing conferences. delay, maintain order, and assure that (a) At a reasonable time in advance a record of the proceeding is made. of the hearing, and with adequate no- (b) The Presiding Officer’s authority tice to all parties, the Presiding Officer includes, but is not limited to, the fol- may conduct, in person or by tele- lowing: phone, one or more prehearing con- (1) Establishing, upon adequate no- ference to discuss the following: tice to all parties, the date and time of (1) Simplification of the issues; the hearing, as well as, in accordance (2) The necessity or desirability of with § 962.7, selecting the hearing site; amendments to the pleadings, includ- (2) Holding conferences, by telephone or in person, to identify or simplify the ing the need for a more definite state- issues, or to consider other matters ment; 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 material to the hearing; hearing date, time or site; and (6) Ruling on all offers, motions, re- (9) Any other matters related to the quests by the parties, and other proce- proceeding. dural matters; (b) Within a reasonable time after (7) Issuing any notices, orders, or the completion of a prehearing con- memoranda to the parties concerning ference, the Presiding Officer shall the proceedings; issue an order detailing all matters (8) Regulating the scope and timing agreed upon by the parties, or ordered of discovery; by the Presiding Officer, at such con- (9) Regulating the course of the hear- ference. ing and the conduct of the parties and their representatives; § 962.11 Respondent access to informa- (10) Examining witnesses; tion. (11) Receiving, ruling on, excluding, (a)(1) Except as provided in para- or limiting evidence in order to assure graph (a)(2) of this section, the Re- that relevant, reliable and probative spondent, at any time after receiving evidence is elicited on the issues in dis- the Notice of Hearing required by pute, but irrelevant, immaterial or repetitious evidence is excluded; § 962.6, may review, and upon payment (12) Deciding cases, upon motion of a of a duplication fee established under party, in whole or in part by summary § 265.8(c) of this title, may obtain a judgment where there is no disputed copy of, all relevant and material docu- issue of material fact; ments, transcripts, records, and other (13) Establishing the record in the materials, which relate to the allega- case; and tions of liability, and upon which the (14) Issuing a written initial decision findings and conclusions of the Inves- containing findings of fact, conclusions tigating Official under § 273.5 of this of law, and determinations with re- title are based. spect to whether a penalty or assess-

319

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00329 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 962.12 39 CFR Ch. I (7–1–06 Edition)

(2) The Respondent is not entitled to agreement, governed by order of the review or obtain a copy of any docu- Presiding Officer. ment, transcript, record, or other ma- (3) No testimony taken by deposi- terial which is privileged under Federal tions shall be considered as part of the law. evidence in the hearing unless and (b) At any time after receiving the until such testimony is offered and re- Notice of Hearing required by § 962.6, ceived in evidence at such hearing. the Respondent shall be entitled to ob- Depositions will not ordinarily be retain all exculpatory information in the ceived in evidence if the deponent is possession of the Investigating Official present and can testify personally at or the Reviewing Official relating to the hearing. In such instances, how- the allegations or liability under 31 ever, the deposition may be used to U.S.C. 3802. Paragraph (a)(2) of this sec- contradict or impeach the testimony of tion does not apply to any document, the witness given at the hearing. In transcript, record, or other material, cases submitted for a decision on the or any portion thereof, in which such record, the Presiding Officer may, in exculpatory information is contained. his discretion, receive depositions as (c) Requests to review or copy mate- evidence in supplementation of that rial under this section must be directed record. 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.

320

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00330 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 962.13

(f) Limitations. Under no cir- (3) The Presiding Officer, in his dis- cumstances may a discovery procedure cretion, may honor requests for sub- be used to reach poenas not made within the time limi- (1) Documents, transcripts, records, tations specified in this paragraph. or other material which a person is not (d) Requests to quash or modify. Upon entitled to review pursuant to § 962.11; written request by the person subpoe- (2) The notice sent to the Attorney naed or by a party, made within 10 days General from the Reviewing Official after service but in any event not later under § 273.6 of this title; or than the time specified in the subpoena (3) Other documents which are privi- for compliance, the Presiding Officer leged under Federal law. may (1) quash or modify the subpoena if it is unreasonable and oppressive or [52 FR 12904, Apr. 20, 1987, as amended at 67 FR 62179, Oct. 4, 2002] for other good cause shown, or (2) require the person in whose behalf the § 962.13 Subpoenas. subpoena was issued to advance the reasonable cost of producing subpoe- (a) General. Upon written request of naed books and papers. Where cir- either party filed with the Recorder or on his own initiative, the Presiding Of- cumstances require, the Presiding Offi- ficer may issue a subpoena requiring: cer may act upon such a request at any time after a copy has been served upon (1) Testimony at a deposition. The de- the opposing party. posing of a witness in the city or county 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 sub- witness at the deposition or hearing of poena and may, in his discretion, enter books and papers designated in the sub- the name of the witness and otherwise poena. leave it blank. The party to whom the (b) Voluntary cooperation. Each party subpoena is issued shall complete the is expected (1) to cooperate and make subpoena before service. available witnesses and evidence under (2) Where the witness is located in a its control as requested by the other foreign country, a letter rogatory or party, without issuance of a subpoena, subpoena may be issued and served and (2) to secure voluntary attendance under the circumstances and in the of desired third-party books, papers, manner provided in 28 U.S.C. 1781–1784. documents, or other tangible things (f) Service. (1) The party requesting whenever possible. issuance of a subpoena shall arrange (c) Requests for subpoenas. (1) A re- for service. quest for a subpoena shall normally be (2) A subpoena requiring the attend- filed at least: ance of a witness at a deposition or (i) 15 days before a scheduled deposi- hearing may be served at any place. A tion where the attendance of a witness subpoena may be served by a United at a deposition is sought; States marshal or deputy marshal, or (ii) 30 days before a scheduled hearing by any other person who is not a party where the attendance of a witness at a and not less than 18 years of age. Serv- hearing is sought. ice of a subpoena upon a person named (2) A request for a subpoena shall therein shall be made by personally de- state the reasonable scope and general livering a copy to that person and ten- relevance to the case of the testimony dering the fees for one day’s attend- and of any books, papers, documents, ance and the mileage provided by 28 or other tangible things sought. U.S.C. 1821 or other applicable law.

321

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00331 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 962.14 39 CFR Ch. I (7–1–06 Edition)

(3) The party at whose instance a (1) Draw an inference in favor of the subpoena is issued shall be responsible requesting party with regard to the infor the payment of fees and mileage of formation sought; the witness and of the officer who (2) Prohibit such party from intro- serves the subpoena. The failure to ducing evidence concerning, or other- make payment of such charges on de- wise relying upon, testimony relating mand may be deemed by the Presiding to the information sought; Officer as sufficient ground for striking (3) Permit the requesting party to in- the testimony of the witness and the troduce secondary evidence concerning evidence the witness has produced. the information sought; and (4) Strike any part of the pleadings [52 FR 12904, Apr. 20, 1987, as amended at 67 or other submissions of the party fail- FR 62179, Oct. 4, 2002] ing to comply with such request. (d) Failure to prosecute or defend. If § 962.14 Enforcement of subpoenas. a party fails to prosecute or defend an In the case of contumacy or refusal action under this part commenced by to obey a subpoena issued pursuant to service of a Complaint, the Presiding §§ 962.9(b)(5) and 962.13, the district Officer may dismiss the action or enter courts of the United States have juris- an order of default. diction to issue an appropriate order (e) Failure to make timely filing. for the enforcement of such subpoena. The Presiding Officer may refuse to Any failure to obey such order of the consider any motion or other pleading, court may be punishable as contempt. report, or response which is not filed in In any case in which the Postal Service a timely fashion. seeks the enforcement of a subpoena under this section, the Postal Service § 962.16 Disqualification of reviewing shall request the Attorney General to official or presiding official. petition the district court for the dis- If a Respondent believes, in good trict in which a hearing under this part faith, that the Reviewing Official or is being conducted or in which the per- Presiding Officer should be disqualified son receiving the subpoena resides or because of personal bias, or other rea- conducts business to issue such an son, the Respondent may file a timely order. and sufficient affidavit alleging such belief with supporting evidence. If the § 962.15 Sanctions. Presiding Officer finds that such allegations 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 and nature of the failure or mis- § 962.17 Ex parte communications. conduct. 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

322

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00332 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 962.22

be transmitted by the Presiding Officer (2) The Respondent’s Notice of Ap- to all parties. peal must be accompanied by a written brief specifying the Respondent’s ex- § 962.18 Post-hearing briefs. ceptions, and any reasons for such ex- Post-hearing briefs and reply briefs ceptions, to the Presiding Officer’s ini- may be submitted upon such terms as tial decision. established by the Presiding Officer at (3) Within 30 days of receiving the the conclusion of the hearing. Respondent’s brief, the Reviewing Offi- cial may file with the Judicial Officer § 962.19 Transcript of proceedings. a response to the Respondent’s speci- Testimony and argument at hearings fied exceptions to the Presiding Offi- shall be reported verbatim, unless the cer’s initial decision. Presiding Officer orders otherwise. (b) Form of review. (1) Review by the Transcripts or copies of the pro- Judicial Officer will be based entirely ceedings may be obtained by the par- on the record and written submissions. ties at such rates as may be fixed by (2) The Judicial Officer may affirm, contract between the reporter and the reduce, reverse, or remand any penalty Postal Service. or assessment determined by the Pre- siding Officer. § 962.20 Initial decision. (3) The Judicial Officer shall not con- (a) After the conclusion of the hear- sider any objection that was not raised ing, and the receipt of briefs, if any, in the hearing unless the interested 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 judicial officer. petition for judicial review is filed. (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, within 30 days after the Presiding Officer § 962.22 Form and filing of documents. 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’’);

323

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00333 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 962.23 39 CFR Ch. I (7–1–06 Edition)

(2) Contain the name, address, and § 962.24 Computation of time. telephone number of the party or other (a) In computing any period of time person on whose behalf the paper was provided for by this part, or any order filed, or the name, address and tele- issued pursuant to this part, the time phone number of the representative begins with the day following the act, who prepared such paper; and event, or default, and includes the last (3) Be signed by the party or other day of the period, unless it is a Satur- person submitting the document, or by day, Sunday, or legal holiday observed such party’s or person’s representative. by the Federal Government, in which (b) The original and three copies of event it includes the next business day. all pleadings and documents in a pro- (b) When the applicable period of ceeding conducted under this part shall time is less than seven days, inter- be filed with the Recorder, Judicial Of- mediate Saturdays, Sundays, and legal ficer Department, United States Postal holidays observed by the Federal Gov- Service, 2101 Wilson Boulevard, Suite ernment shall be excluded from the 600, Arlington, VA 22201–3078. Normal computation. Recorder business hours are between 8:15 a.m. and 4:45 p.m., eastern standard § 962.25 Continuances and extensions. or daylight saving time. The Recorder Continuances and extensions may be will transmit a copy of each document granted under these rules for good filed to the other party, and the origi- cause shown. nal to the Presiding Officer. (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 [52 FR 12904, Apr. 20, 1987, as amended at 63 U.S.C. 3805 or during the pendency of FR 66053, Dec. 1, 1998] an action to collect any penalties or 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 Unless otherwise specified, service of settle any penalty or assessment the 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 person sought to be served, or his or [59 FR 51860, Oct. 13, 1994] her agent, a written acknowledgement of receipt, showing the date and time § 962.27 Limitations. of such receipt. If the person upon A hearing under this part concerning whom service is made declines to ac- a claim or statement allegedly made, knowledge receipt, the person effecting presented, or submitted in violation of service shall execute a statement, indi- 31 U.S.C. 3802 shall be commenced with- cating the time, place and manner of in six years after the date on which service, which shall constitute evi- such claim or statement is made, pre- dence of service. sented, or submitted.

324

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00334 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 963.3

PART 963—RULES OF PRACTICE IN title 5, U.S.C., do not apply to the hear- PROCEEDINGS RELATIVE TO VIO- ings authorized by 39 U.S.C. 3008(d). LATIONS OF THE PANDERING AD- [52 FR 18912, May 20, 1987, as amended at 59 VERTISEMENTS STATUTE, 39 U.S.C. FR 10751, Mar. 8, 1994, 62 FR 4459, Jan. 30, 3008 1997]

Sec. § 963.3 Petition; notice of hearing; an- 963.1 Authority for the rules. swer; filing and copies of documents; summary judgment. 963.2 Scope of the rules. 963.3 Petition; notice of hearing; answer; fil- (a) Petition. Anyone against whom a ing and copies of documents; summary complaint has been issued pursuant to judgment. 39 U.S.C 3008(d) may submit to the 963.4 Presiding Officer. Manager a petition for hearing on the 963.5 Appearances. alleged violation. The petition must be 963.6 Computation of time. 963.7 Location of hearing. in writing, signed by the petitioner or 963.8 Change of place of hearing. his or her attorney, and filed with the 963.9 Election as to hearing. Manager on or before the 15th day after 963.10 Continuances and extensions. receipt of the complaint. The petition 963.11 Default. shall state the reasons why the peti- 963.12 Settlement agreements. tioner believes the complaint to be er- 963.13 Subpoenas and witness fees not au- roneous. No petition received after the thorized. 15th day will be considered to have 963.14 Discovery. 963.15 Evidence. been filed on time, unless it was duly 963.16 Transcript. sent to the Manager via certified mail, 963.17 Proposed findings of fact and conclu- deposited in the U.S. mail on or before sions of law. the 15th day. The Manager will forward 963.18 Initial decision. each timely petition to the Recorder, 963.19 Appeal. Judicial Officer Department, U.S. Post- 963.20 Final agency decision. al Service, 2101 Wilson Boulevard, 963.21 Official record. Suite 600, Arlington, VA 22201–3078. 963.22 Public information. (b) Notice of hearing. Upon receiving a AUTHORITY: 39 U.S.C. 204, 401, 3008. petition, the Recorder shall schedule a SOURCE: 52 FR 18912, May 20, 1987, unless hearing for a date not later than 30 otherwise noted. days after the date of receipt, issue and send a notice of hearing to the parties, § 963.1 Authority for the rules. and send a copy of the petition to the These rules of practice are issued by General Counsel of the U.S. Postal the Judicial Officer of the U.S. Postal Service. Service pursuant to authority dele- (c) Answer. The General Counsel shall gated by the Postmaster General (39 file with the Recorder an answer to the CFR 226.2(e)(1)). petition within 15 days after the date [52 FR 18912, May 20, 1987, as amended at 59 of receiving a copy thereof. A certified FR 10751, Mar. 8, 1994] copy of the material documents from the Manager’s case file (i.e., of the PS § 963.2 Scope of the rules. Forms 1500, Application for Listing and/ These rules of practice are applicable or Prohibitory Order, 2152, Prohibitory to cases in which the Prohibitory Order Order, and 2153, Complaint, underlying Processing Center Manager (herein- mail pieces, and pertinent return re- after, ‘‘Manager’’) has issued a com- ceipts) shall be appended to the answer. plaint, pursuant to 39 U.S.C. 3008(d), al- (d) Filing and copies of documents. leging violation of a prohibitory order, With the exception of the initial peti- and in which the alleged violator has tion, all documents shall be filed with petitioned for a hearing in the matter. the Recorder in triplicate at the ad- As provided in 39 U.S.C. 3008(h), sub- dress set forth above. The Recorder chapter II of chapter 5 (relating to ad- shall promptly provide copies to the ministrative procedure) and chapter 7 other party to the proceeding and to (relating to judicial review) of part I of the presiding officer.

325

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00335 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 963.4 39 CFR Ch. I (7–1–06 Edition)

(e) Summary Judgment. Upon motion Counsel or any attorney designated by of either the General Counsel or the pe- the General Counsel. titioner, or on his or her own initiative, the presiding officer may find § 963.6 Computation of time. that the petition and answer present no A designated period of time under genuine and material issues of fact re- these rules means calendar days, ex- quiring an evidentiary hearing, and cludes the day the period begins, and thereupon may render an initial deci- includes the last day of the period un- sion upholding or dismissing the com- less the last day is a Saturday, Sunday, plaint. The initial decision shall be- or legal holiday, in which case the pe- come the final agency decision if a timely appeal is not taken. riod runs until the close of business on the next business day. [52 FR 18912, May 20, 1987; 52 FR 20599, June 2, 1987, as amended at 59 FR 10752, Mar. 8, § 963.7 Location of hearing. 1994; 62 FR 4459, Jan. 30, 1997; 63 FR 66053, Dec. 1, 1998] Hearings are held at 2101 Wilson Bou- levard, Suite 600, Arlington, VA 22201– § 963.4 Presiding Officer. 3078, or other locations designated by (a) The presiding officer shall be an the presiding officer. 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- ficer includes Associate Judicial Offi- Not later than the date fixed for the cer upon delegation thereto. The Judi- filing of the answer, a party may file a cial Officer may, on his or her own ini- request that a hearing be held to re- tiative or for good cause found, preside ceive evidence in his or her behalf at a at the reception of evidence. place other than that designated for (b) The presiding officer has author- hearing in the notice. The party shall ity to: support his or her request with a state- (1) Take such action as may be nec- ment outlining: essary properly to preside over the pro- (a) The evidence to be offered in such ceeding and render decision therein; place; (2) Render an initial decision, if the (b) The names and addresses of the presiding officer is not the Judicial Of- witnesses who will testify; ficer, which becomes the final agency (c) The reasons why such evidence 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 par- [52 FR 18912, May 20, 1987, as amended at 62 ties and the relevance of the evidence FR 4459, Jan. 30, 1997] to be offered. § 963.5 Appearances. [52 FR 18912, May 20, 1987, as amended at 62 FR 4459, Jan. 30, 1997; 63 FR 66053, Dec. 1, (a) Petitioner. A petitioner may ap- 1998] pear and be heard in person or by attorney. An attorney may practice be- § 963.9 Election as to hearing. fore the Postal Service in accordance with applicable rules issued by the Ju- If both parties elect, an oral hearing dicial Officer (see Part 951 of this chap- may be waived and the matter sub- ter). When a petitioner is represented mitted for decision on the basis of the by an attorney, all pleadings and other petition and answer, and of any docu- papers to be served on petitioner after mentary evidence or briefs requested entry of the attorney’s appearance by the presiding officer. The written shall be mailed to the attorney. A peti- election to waive oral hearing must be tioner must promptly file notice of any received by the Recorder no later than change of attorney. 10 days prior to the scheduled hearing (b) Postal Service. The Postal Service date. will be represented by its General

326

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00336 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 963.17

§ 963.10 Continuances and extensions. tially outweighed by the danger of un- Continuances and extensions will be fair prejudice, or by considerations of granted by the presiding officer for undue delay, waste of time, or needless good cause shown. presentation of cumulative evidence. (b) Testimony shall be given under § 963.11 Default. oath or affirmation and witnesses are If a petitioner, without notice or subject to cross-examination. cause satisfactory to the presiding offi- (c) Agreed statements of fact are en- cer, fails to appear at the hearing or couraged and may be received in evi- comply with any of the provisions of dence. these rules or an order issued by the presiding officer, the petitioner may be § 963.16 Transcript. deemed to have abandoned his or her Testimony and argument at hearings petition and to have acquiesced in the shall be reported verbatim, unless the allegations of the complaint. The pre- presiding officer otherwise orders. siding officer thereupon may find the Transcripts or copies of the pro- petitioner to be in default and refer the matter to the Judicial Officer for dis- ceedings are supplied to the parties at missal of the petition. such rate as may be fixed by contract between the reporter and Postal Serv- [52 FR 18912, May 20, 1987, as amended at 62 ice. Any party desiring a copy of the FR 4459, Jan. 30, 1997] transcript shall order it from the con- § 963.12 Settlement agreements. tract reporter in a timely manner to avoid delay in filing briefs. These rules do not preclude the disposition of any matter by agreement § 963.17 Proposed findings of fact and between the parties at any stage of the conclusions of law. proceeding. (a) Each party who participates in § 963.13 Subpoenas and witness fees the hearing may, unless the presiding not authorized. officer orders otherwise, submit pro- The Postal Service is not authorized posed findings of fact, conclusions of to issue subpoenas requiring the at- law, orders, and supporting reasons, ei- tendance or testimony of witnesses, ther in writing or orally at the discre- nor to pay fees and expenses for a petition of the presiding officer. Unless tioner’s witnesses or for depositions re- given orally, the date set for filing of quested by a petitioner. proposed findings of fact, conclusions of law, orders, and supporting reasons § 963.14 Discovery. shall be within 15 days after the deliv- Discovery is to be conducted on a ery of the official transcript to the Re- voluntary basis to the extent possible. corder, who shall notify both parties of The presiding officer may, upon appli- the date of its receipt. The filing date cation of either party, order such dis- for proposed findings of fact, conclu- covery as he or she deems reasonable sions of law, orders, and supporting and necessary. Discovery may include reasons shall be the same for both par- one or more of the following: production of documents, requests for admis- ties. If not submitted by such date, un- sions, interrogatories, depositions, and less extension of time for the filing witness lists. The presiding officer will thereof is granted, they will not be in- establish the terms upon which re- cluded in the record or given consider- quested discovery will be allowed. ation. (b) Except when presented orally be- [52 FR 18912, May 20, 1987, as amended at 62 fore the close of the hearing, proposed FR 4459, Jan. 30, 1997] findings of fact shall be set forth in se- § 963.15 Evidence. rially numbered paragraphs and shall (a) In general, admissibility will state with particularity all evidentiary hinge on relevancy and materiality. facts in the record with appropriate ci- However, relevant evidence may be ex- tations to the transcript or exhibits cluded if its probative value is substan- supporting the proposed findings. Each

327

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00337 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 963.18 39 CFR Ch. I (7–1–06 Edition)

proposed conclusion shall be stated PART 964—RULES OF PRACTICE separately. GOVERNING DISPOSITION OF [52 FR 18912, May 20, 1987; 52 FR 20599, June MAIL WITHHELD FROM DELIVERY 2, 1987] PURSUANT TO 39 U.S.C. 3003, 3004 § 963.18 Initial decision. Unless given orally at the conclusion Sec. of the hearing, the presiding officer 964.1 Authority for rules. 964.2 Scope of rules. shall render an initial decision as expe- 964.3 Customer petitions; notice of hearing; ditiously as practicable following the answer; summary judgment. conclusion of the hearing and the re- 964.4 Hearings. ceipt of the proposed findings and con- 964.5 Election as to hearing. clusions, if any. The initial decision be- 964.6 Default. 964.7 Presiding officers. comes the final agency decision if a 964.8 Subpoenas and witness fees not au- timely appeal is not taken. thorized. 964.9 Discovery; interrogatories; admission § 963.19 Appeal. of facts; production; and inspection of Either party may file exceptions in a documents. 964.10 Evidence. brief on appeal to the Judicial Officer 964.11 Transcript. within 15 days after receipt of the ini- 964.12 Computation of time. tial or tentative decision unless addi- 964.13 Continuances and extensions. tional time is granted. A reply brief 964.14 Proposed findings of fact and conclu- may be filed within 15 days after the sions of law. 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. 964.21 Official record. § 963.20 Final agency decision. 964.22 Public information. The Judicial Officer, or by delegation 964.23 Ex Parte communications. the Associate Judicial Officer, renders AUTHORITY: 39 U.S.C. 204, 401, 3003, 3004. the final agency decision which will be SOURCE: 52 FR 36763, Oct. 1, 1987, unless served upon the parties. If the decision otherwise noted. is that the Postal Service’s prohibitory order was violated, the Recorder shall § 964.1 Authority for rules. provide a certified copy of the record These rules of practice are issued by to the General Counsel for use in seek- the Judicial Officer of the United ing court enforcement of the order. States Postal Service pursuant to authority delegated by the Postmaster § 963.21 Official record. General (39 CFR 224.1(c)(4)). The transcript of testimony together [52 FR 36763, Oct. 1, 1987, as amended at 67 FR with all pleadings, orders, exhibits, 62179, Oct. 4, 2002] briefs, and other documents filed in the proceeding constitute the official § 964.2 Scope of rules. record of the proceeding. The rules in this part provide for administrative review of cases in which § 963.22 Public information. the Chief Postal Inspector or his dele- The Librarian of the Postal Service gate, acting pursuant to 39 U.S.C. maintains for public inspection in the 3003(a), has withheld from delivery Library copies of all initial, tentative, mail which he believes is involved in a and final agency decisions and orders. scheme described in section 3003(a), and The Recorder maintains the complete cases in which the Chief Postal Inspec- tor or his delegate, acting pursuant to official record of every proceeding. 39 U.S.C. 3004, determines that letters [52 FR 18912, May 20, 1987, as amended at 63 or parcels sent in the mail are ad- FR 66053, Dec. 1, 1998] dressed to places not the residence or

328

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00338 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 964.6

regular business address of the person ceipt of the Petition from the Re- for whom they are intended to enable corder. the person to escape identification. (d) Summary judgment. Upon motion of either the General Counsel or the [52 FR 36763, Oct. 1, 1987, as amended at 67 FR Petitioner, or upon his own initiative, 62179, Oct. 4, 2002] the presiding officer may find that the § 964.3 Customer petitions; notice of Petition and Answer present no mate- hearing; answer; summary judg- rial issues of fact requiring an evi- ment. dentiary hearing and thereupon may render an initial decision granting or (a) Petition. Any addressee who re- dismissing the Petition. The initial de- ceives notice from the Chief Postal In- cision shall become the final agency spector or his delegate that his mail decision if a timely appeal is not taken has been withheld pursuant to 39 U.S.C. pursuant to § 964.16 of this part. 3003(a) or 3004 may oppose such action by filing with the Judicial Officer a [52 FR 36763, Oct. 1, 1987, as amended at 53 FR written Petition stating the reasons 4849, Feb. 18, 1988; 63 FR 66053, Dec. 1, 1998] for his or her opposition. The Petition, § 964.4 Hearings. signed by the Petitioner or his attorney, shall be filed by sending the Peti- Hearings are held at 2101 Wilson Bou- tion via certified mail to the Recorder, levard, Suite 600, Arlington, VA 22201– Judicial Officer Department, U.S. Post- 3078, or other locations designated by al Service, 2101 Wilson Boulevard, the presiding officer. Not later than 10 Suite 600, Arlington, VA 22201–3078. The days prior to the date fixed for the Petition must be postmarked within 14 hearing, a party may file a request days of the date upon which the Peti- that a hearing be held to receive evi- tioner received the notice. The failure dence in his behalf at a place other of an addressee who has received notice than that designated for hearing in the of withheld mail to file a Petition op- notice. He shall support his request posing such action with the Judicial with a statement outlining: Officer shall constitute a waiver of (a) The evidence to be offered in such hearing and further procedural steps by place; the addressee. The General Counsel of (b) The names and addresses of the the Postal Service shall thereupon file witnesses who will testify; and the matter with the Judicial Officer for (c) The reasons why such evidence issuance of a final order pursuant to cannot be produced at Arlington, VA. § 964.19. Such referral shall contain a The presiding officer shall give con- statement of the basis for the deten- sideration to the convenience and ne- tion, evidence that the notice of the de- cessity of the parties and the relevance tention and the addressee’s right to pe- of the evidence to be offered tition for review under this part were [52 FR 36763, Oct. 1, 1987, as amended at 63 FR served on the addressee in person or by 66053, Dec. 1, 1998] mailing a copy to the address to which the detained mail is directed, the date § 964.5 Election as to hearing. of such service, and a copy of the pro- If both parties elect, they may waive posed order sought by the General an oral hearing and submit the matter Counsel. for decision on the basis of the Petition (b) Notice of hearing. On receipt of the and Answer, subject to the authority of Petition, the Recorder shall schedule a the presiding officer to require the par- hearing on a date not later than 28 ties to furnish such further evidence or days after the date of receipt. A Notice such briefs as necessary. The request to of Hearing shall be sent to the Peti- waive oral hearing should be filed not tioner. A copy of the Notice of Hearing later than 10 days prior to the date set and the Petition shall be sent to the for hearing. General Counsel of the U.S. Postal Service. § 964.6 Default. (c) Answer. The General Counsel of If a Petitioner fails to appear at the the Postal Service shall file an Answer hearing without notice or without ade- to the Petition within 10 days of re- quate cause the presiding officer may

329

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00339 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 964.7 39 CFR Ch. I (7–1–06 Edition)

issue an order dismissing the Petition tioner’s witnesses or for depositions re- and refer the matter to the Judicial Of- quested by a Petitioner. ficer for issuance of the order provided for under § 964.19. An order of dismissal § 964.9 Discovery; interrogatories; ad- issued under this section may be ap- mission of facts; production and in- pealed to the Judicial Officer within 10 spection of documents. days from the date of the order. (a) General policy and protective orders. [52 FR 36763, Oct. 1, 1987, as amended at 53 FR The parties are encouraged to engage 4849, Feb. 18, 1988] in voluntary discovery procedures. In connection with any discovery proce- § 964.7 Presiding officers. dure permitted under this part, the (a) The presiding officer shall be an presiding officer may issue any order Administrative Law Judge qualified in which justice requires to protect a accordance with law. The Judicial Offi- party or person from annoyance, em- cer shall assign cases upon rotation as barrassment, oppression, or undue bur- far as practicable. The Judicial Officer den or expense. Such orders may in- may on his own initiative or for good clude limitations on the scope, method, 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: (1) Administer oaths and affirma- ranted public disclosure. Each party tions; shall bear its own expenses relating to (2) Examine witnesses; discovery. (3) Rule upon offers of proof, admissi- (b) Depositions. (1) After the issuance bility of evidence and matters of proce- of a notice of hearing described in dure; § 964.3 of this part, the parties may mu- (4) Order any pleadings amended tually agree to, or the presiding officer upon motion of a party at any time may, upon application of either party prior to the close of the hearing; and for good cause shown, order the (5) Maintain discipline and decorum taking of testimony of any person by and exclude from the hearing any per- deposition upon oral examination or son acting in an indecorous manner; written interrogatories before any offi- (6) Require the filing of briefs or cer authorized to administer oaths at memoranda of law on any matter upon the place of examination, for use as which he is required to rule; evidence or for purposes of discovery. (7) Order prehearing conferences for The application for order shall specify the purpose of the settlement or sim- whether the purpose of the deposition plification of issues by the parties or is discovery or for use as evidence, or for any other purpose he believes will both. facilitate the processing of the proceeding; (2) The time, place, and manner of (8) Order the proceeding reopened at taking depositions shall be as mutually any time prior to his decision for the agreed by the parties, or failing such receipt of additional evidence; agreement, governed by order of the (9) Render an initial decision, which presiding officer. becomes the final agency decision un- (3) No testimony taken by deposi- less a timely appeal is taken: The Judi- tions shall be considered as part of the cial Officer may issue a tentative or a evidence in the hearing unless and final decision; until such testimony is offered and re- (10) Rule upon applications and received in evidence at such hearing. quests filed under § 964.9 of this part. Depositions will not ordinarily be received in evidence if the deponent is § 964.8 Subpoenas and witness fees not authorized. present and can testify personally at the hearing. In such instances, how- The Postal Service is not authorized ever, the deposition may be used to to issue subpoenas requiring the at- contradict or impeach the testimony of tendance or testimony of witnesses, the witness given at the hearing. In nor to pay fees and expenses for a Peti-

330

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00340 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 964.14

cases submitted on the record, the pre- (c) Agreed statements of fact are en- siding officer may, in his discretion, re- couraged and may be received in evi- ceive depositions as evidence in sup- dence. plementation of the record. (c) Interrogatories to parties. Not later § 964.11 Transcript. than 5 days after the filing of the An- Testimony and argument at hearings swer described in § 964.3, a party may shall be reported verbatim, unless the serve on the other party written inter- presiding officer orders otherwise. rogatories to be answered separately in Transcripts or copies of the pro- writing, signed under oath and re- ceedings are supplied to the parties at turned within 10 days. Upon timely ob- such rate as may be fixed by contract jection by the party, the presiding offi- between the reporter and Postal Serv- cer will determine the extent to which ice. Any party desiring a copy of the the interrogatories will be permitted. transcript shall order it from the con- (d) Admission of facts. Not later than tract reporter in a timely manner to 5 days after the filing of the Answer de- avoid delay in filing briefs. scribed in § 964.3, a party may serve § 964.12 Computation of time. upon the other party a request for the admission of specified facts. Within 10 A designated period of time under days after receipt of the request for ad- these rules means calendar days, ex- missions, the party served shall admit cludes the day the period begins, and or answer each specified fact or file ob- includes the last day of the period un- jections thereto. Any factual propo- less the last day is a Saturday, Sunday, sitions set out in the request to which or legal holiday, in which case the pe- a party fails to respond shall be deemed riod runs until the close of business on admitted. the next business day. (e) Production and inspection of docu- § 964.13 Continuances and extensions. ments. Upon motion of any party showing good cause therefor, and upon no- Continuances and extensions will be tice, the presiding officer may order granted by the presiding officer for the other party to produce and permit good cause shown. the inspection and copying or photographing of any designated docu- § 964.14 Proposed findings of fact and conclusions of law. ments and or objects, provided that such documents and objects are not (a) Each party to a proceeding, ex- privileged, their relevance to the cause cept one who fails to answer the Peti- or causes in issue is explained, and tion or, having answered, either fails to they are reasonably calculated to lead appear at the hearing or indicates in to the discovery of admissible evi- the answer that he does not desire to dence. If the parties cannot themselves appear, may, unless at the discretion of agree thereon, the presiding officer the presiding officer such is not appro- shall specify the terms and conditions priate, submit proposed findings of for making the inspection and taking fact, conclusions of law, orders and the copies and photographs. supporting reasons either in oral or written form in the discretion of the § 964.10 Evidence. presiding officer. The presiding officer 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

331

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00341 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 964.15 39 CFR Ch. I (7–1–06 Edition)

reasons shall be the same for both par- corder and contain the following mat- ties. If not submitted by such date, un- ter in the order indicated: less extension of time for the filing (1) A subject index of the matters thereof is granted, they will not be in- presented, with page references; a table cluded in the record or given consider- of cases alphabetically arranged; a list ation. of statutes and texts cited with page (b) Except when presented orally be- references. fore the close of the hearing, proposed (2) A concise abstract or statement of findings of fact shall be set forth in se- the case in briefs on appeal or in sup- rially numbered paragraphs and shall state with particularity all evidentiary port of exceptions. facts in the record with appropriate ci- (3) Numbered exceptions to specific tations to the transcript or exhibits findings and conclusions of fact, con- supporting the proposed finding. Each clusions of law, or recommended orders proposed conclusion shall be separately of the presiding officer in briefs on ap- stated. peal or in support of exceptions. (4) A concise argument clearly set- § 964.15 Decisions. ting forth points of fact and of law re- (a) Initial decision by Administrative lied upon in support of or in opposition Law Judge. A written initial decision to each exception taken, together with shall be rendered by an Administrative specific references to the parts of the 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. (b) Tentative or final decision by the at issue is being held. Judicial Officer. When the Judicial Offi- [52 FR 36763, Oct. 1, 1987, as amended at 53 FR cer presides at the hearing he shall 4849, Feb. 18, 1988] issue a final or a tentative decision. Such decision shall include findings § 964.18 Compromise and informal dis- and conclusions with the reasons there- position. for upon all the material issues of fact Nothing in these rules precludes the or law presented in the record, and the compromise, settlement, and informal appropriate orders or denial thereof. disposition of proceedings initiated The tentative decision shall become under these rules at any time prior to the final agency decision unless excep- the issuance of the final agency deci- tions are filed in accordance with sion. § 964.16.

§ 964.16 Appeal. § 964.19 Orders. (a) Either party may file exceptions If an order is issued by the Judicial in a brief on appeal to the Judicial Of- Officer which prohibits delivery of mail ficer within 15 days after receipt of the to a Petitioner it shall be incorporated initial or tentative decision unless ad- in the record of the proceeding. The ditional time is granted. A reply brief Recorder shall cause notice of the may be filed within 15 days after re- order to be published in the Postal Bul- ceipt of the appeal brief by the oppos- letin and cause the order to be trans- ing party. The Judicial Officer has all mitted to such postmasters and other powers of a presiding officer and is au- officers and employees of the Postal thorized to decide all issues de novo. Service as may be required to place the (b) Briefs upon appeal or in support order into effect. of exceptions to a tentative decision by the Judicial Officer and replies thereto [52 FR 36763, Oct. 1, 1987, as amended at 53 FR shall be filed in triplicate with the Re- 4849, Feb. 18, 1988]

332

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00342 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 965.4

§ 964.20 Modification or revocation of AUTHORITY: 39 U.S.C. 204, 401. orders. SOURCE: 52 FR 29012, Aug. 5, 1987, unless A party against whom an order or or- otherwise noted. ders have been issued may file an application for modification or revocation § 965.1 Authority for rules. thereof. The Recorder shall transmit a These rules of practice are issued by copy of the application to the General the Judicial Officer of the U.S. Postal Counsel, who shall file a written reply Service pursuant to authority dele- within 10 days after receipt or such gated by the Postmaster General. (39 other period as the Judicial Officer CFR 224.1(c)(4)). may fix. A copy of the reply shall be sent to the applicant by the Recorder. § 965.2 Scope of rules. Thereafter an order granting or deny- The rules in this part shall be appli- ing such application will be issued by cable to mail dispute cases forwarded the Judicial Officer. to the Judicial Officer Department by the chief field counsel pursuant to § 964.21 Official record. Postal Operations Manual section The transcript of testimony together 616.21. with all pleadings, orders, exhibits, briefs, and other documents filed in the [52 FR 29012, Aug. 5, 1987, as amended at 63 proceeding constitute the official FR 66053, Dec. 1, 1998] record of the proceeding. § 965.3 Notice to parties. § 964.22 Public information. Upon receipt of a mail dispute case The Librarian of the Postal Service from the chief field counsel, the Re- maintains for public inspection in the corder, Judicial Officer Department, Library copies of all initial, tentative, United States Postal Service, 2101 Wil- and final agency decisions and orders. son Boulevard, Suite 600, Arlington VA The Recorder maintains the complete 22201–3078, will send a notice of dock- official record of every proceeding. eting and submittal due date to the parties together with a copy of these [52 FR 36763, Oct. 1, 1987, as amended at 63 FR rules. 66053, Dec. 1, 1998] [52 FR 29012, Aug. 5, 1987, as amended at 63 § 964.23 Ex parte communications. FR 66053, Dec. 1, 1998; 67 FR 62179, Oct. 4, 2002] The provisions of 5 U.S.C. 551(14), 556(d), and 557(d) prohibiting ex parte § 965.4 Presiding officers. communications are made applicable to proceedings under these rules of (a) The presiding officer shall be an practice. Administrative Law Judge or an Ad- ministrative Judge qualified in accordance with law. The Judicial Officer as- PART 965—RULES OF PRACTICE IN signs cases under this part. Judicial Of- PROCEEDINGS RELATIVE TO MAIL ficer includes Associate Judicial Offi- DISPUTES cer upon delegation thereto. The Judi- cial Officer may, on his own initiative Sec. or for good cause found, preside at the 965.1 Authority for rules. reception of evidence. 965.2 Scope of rules. 965.3 Notice to parties. (b) The presiding officer has author- 965.4 Presiding officers. ity to: 965.5 Submittals 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, which becomes the final agency 965.12 Appeal. decision unless a timely appeal is 965.13 Compromise and informal disposition. taken; the Judicial Officer may issue a 965.14 Public information. tentative or a final decision.

333

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00343 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 965.5 39 CFR Ch. I (7–1–06 Edition)

§ 965.5 Submittals by parties. (c) Agreed statements to fact are en- Within 15 days after receipt of the couraged and may be received in evi- Recorder’s notice, each party shall file dence. with the Recorder a sworn statement of the facts supporting its claim to re- § 965.10 Transcript. ceipt of the mail together with a copy Testimony and argument at hearings of each document on which it relies in shall be reported verbatim, unless the making such claim. All such submit- presiding officer otherwise orders. tals shall be in duplicate. Upon receipt Transcripts or copies of the proof such evidence, the Recorder shall ceedings are supplied to the parties at send a copy of each submittal to the such rate as may be fixed by contract opposing party. between the reporter and Postal Serv- ice. § 965.6 Comments by parties. Within 10 days of receipt of the other § 965.11 Initial decision. party’s evidence, each party may file The presiding officer shall render an with the Recorder a statement setting initial decision in writing, based on the forth in detail its disagreements, if any, with its opponent’s statement and record, as expeditiously as possible, but documents. The Recorder will send to to the extent practicable within 10 each party a copy of the other party’s working days of closing of the record. comments. The decision will be brief, containing summary findings of fact, conclusions § 965.7 Default. of law, and reasons therefor. If there A party who fails to file the sub- has been a hearing the presiding officer mittal required by § 965.5 may be held may in his discretion render an oral de- in default and the presiding officer may cision. A typed copy of such oral deci- issue an initial decision that mail be sion will subsequently be furnished to delivered to the other party. the parties to establish the date for commencement of time for requesting § 965.8 Hearings. review of the initial decision. (a) In the discretion of the presiding officer an oral hearing may be granted § 965.12 Appeal. at the request of either, or both, par- The initial or tentative decision will ties or on the presiding officer’s own become final 10 days after its issuance initiative if there is a dispute as to a and receipt by the parties unless the material issue of fact which can only Judicial Officer, or by delegation the be resolved by examination of wit- Associate Judicial Officer, in his sole nesses. discretion, grants review upon appeal (b) Hearings are held at 2101 Wilson of either party filed within that period, Boulevard, Suite 600, Arlington, VA 22201–3078, or such other place as may or on his own motion within that pe- be designated by the presiding officer. riod. If an appeal is denied, the initial or tentative decision becomes the final [52 FR 29012, Aug. 5, 1987, as amended at 63 agency decision on the issuance of such FR 66053, Dec. 1, 1998] denial. The judicial Officer’s decision § 965.9 Evidence. on appeal is the final agency decision with no further agency review or ap- (a) In general, admissibility will peal rights. hinge on relevancy and materiality. However, relevant evidence may be ex- § 965.13 Compromise and informal dis- cluded if its probative value is substan- position. tially outweighed by the danger of unfair prejudice, or by considerations of Nothing in these rules precludes the undue delay, waste of time, or needless compromise, settlement, and informal presentation of cumulative evidence. disposition of proceedings initiated (b) Testimony shall be given under under these rules at any time prior to oath or affirmation and witnesses are the issuance of the final agency deci- subject to cross-examination. sion.

334

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00344 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 966.3

§ 965.14 Public Information. § 966.3 Definitions. The Librarian of the Postal Service (a) Administrative offset refers to the maintains for public inspection in the withholding of money payable by the Library copies of all initial, tentative, Postal Service or the United States to, and final agency decisions and orders. or held by the Postal Service or the The Recorder maintains the complete United States for, a former employee official record of every proceeding. in order to satisfy a debt determined to be owed by the former employee to the [52 FR 29012, Aug. 5, 1987, as amended at 63 Postal Service. FR 66053, Dec. 1, 1998] (b) Debt refers to any amount determined by the Postal Service to be owed PART 966—RULES OF PRACTICE IN to the Postal Service by a former em- PROCEEDINGS RELATIVE TO AD- ployee. MINISTRATIVE OFFSETS INITIATED (c) Former employee refers to an indi- AGAINST FORMER EMPLOYEES vidual whose employment with the OF THE POSTAL SERVICE Postal Service has ceased. An employee is considered formally separated Sec. from the Postal Service rolls as of 966.1 Authority for rules. close of business on the effective date 966.2 Scope of rules. of his or her separation. Postal Service 966.3 Definitions. Form 50. 966.4 Petition for a hearing and supplement (d) General Counsel refers to the Gen- to petition. eral Counsel of the Postal Service, and 966.5 Effect of petition filing. includes a designated representative. 966.6 Filing, docketing and serving docu- (e) Hearing Official refers to an Ad- ments; computation of time; representa- ministrative Law Judge qualified to tion of parties. hear cases under the Administrative 966.7 Answer to petition. Procedure Act, an Administrative 966.8 Authority and responsibilities of Hear- Judge appointed under the Contract ing Official or Judicial Officer. Disputes Act of 1978, or any other 966.9 Opportunity for oral hearing. qualified person licensed to practice 966.10 Initial decision. law designated by the Judicial Officer 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- AUTHORITY: 39 U.S.C. 204, 401, 2601. cial Officer, Associate Judicial Officer, SOURCE: 62 FR 63279, Nov. 28, 1997, unless or Acting Judicial Officer of the Postal otherwise noted. Service. (g) Postmaster/Installation Head refers § 966.1 Authority for rules. to the top management official at a These rules of practice are issued by particular post office or installation the Judicial Officer pursuant to au- when an alleged debt owed by a former thority delegated by the Postmaster employee was incurred, or to that offi- General. cial’s successor, or to the department head who had general supervisory re- § 966.2 Scope of rules. sponsibility for a former employee at 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

335

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00345 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 966.4 39 CFR Ch. I (7–1–06 Edition)

the former employee’s immediate su- (1) The words, ‘‘Petition for Review pervisor when an alleged debt owed by Under 39 CFR Part 966’’; that former employee was incurred, or (2) The former employee’s name and to that official’s successor. Where the social security number; former employee was in the Office of (3) The former employee’s home ad- Inspector General, the term refers to dress and telephone number, and any the Inspector General, or to the Inspec- other address and telephone number at tor General’s delegate. which the former employee may be (h) Reconsideration refers to the re- contacted about these proceedings; view of an alleged debt and/or the pro- (4) A statement of the date the posed offset schedule conducted by the former employee received the Post- Postmaster/Installation Head at the re- master/Installation Head’s written de- quest of a former employee alleged to cision upon reconsideration of the al- be indebted to the Postal Service. leged debt, and a copy of the decision; (i) Recorder refers to the Recorder, (5) A statement indicating whether Judicial Officer Department, United the former employee requests an oral States Postal Service, 2101 Wilson Bou- hearing or a decision based solely on levard, Suite 600, Arlington, VA 22201– written submissions; 3078. (6) If the former employee requests [62 FR 63279, Nov. 28, 1997, as amended at 63 an oral hearing, a statement describing FR 66053, Dec. 1, 1998] the evidence he or she will produce which makes an oral hearing nec- § 966.4 Petition for a hearing and sup- essary, including a list of witnesses, plement to petition. with their addresses, whom the former (a) A former employee who is alleged employee expects to call; a summary of to be responsible for a debt to the Post- the testimony the witnesses are ex- al Service may petition for a hearing pected to present; the city requested under this part, provided: for the hearing site, with justification (1) Liability for the debt and/or the for holding the hearing in that city; proposed offset schedule has not been and at least three proposed dates for established under Part 452.3 or Part the hearing at least forty-five (45) days 462.3 of the Employee & Labor Rela- after the filing of the petition; tions Manual; (7) A statement of the grounds upon (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 fol- [62 FR 63279, Nov. 28, 1997, as amended at 63 lowing: FR 66053, Dec. 1, 1998]

336

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00346 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 United States Postal Service § 966.8

§ 966.5 Effect of petition filing. tition, and attach all available rel- Upon receipt and docketing of the evant records and documents in sup- former employee’s petition, the Re- port of the Postal Service’s claim, or corder will notify the General Counsel the administrative offset schedule pro- that the petition has been filed and posed by the Postal Service for col- that a timely filed petition stays fur- lecting any such claim; a statement of ther collection action. whether the Postal Service concurs in, or objects to, an oral hearing, if the § 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 date of receipt of the supplement filed notification of the docket number, the with the Recorder. former employee and General Counsel 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 (a) In processing a case under this the day the period begins, and includes part, the Hearing Official’s authority the last day of the period unless the includes, but is not limited to, the fol- last day is a Saturday, Sunday, or legal lowing: holiday, in which event the period runs (1) Ruling on all offers, motions, or until the close of business on the next requests by the parties; business day. (2) Issuing any notices, orders, or (d) Representation of parties. After the memoranda to the parties concerning filing of the petition, further document the hearing procedures; transmittals for, or communications (3) Conducting telephone conferences with, the Postal Service shall be with the parties to expedite the pro- through its representative, the General ceedings (a memorandum of a tele- Counsel. If a former employee is rep- phone conference will be transmitted resented by an attorney authorized to to both parties); practice law in any of the United (4) Determining if an oral hearing is States or the District of Columbia or a necessary, the type of oral hearing that territory of the United States, further would be appropriate, and setting the transmissions of documents and other place, date, and time for such hearing; communications with the former em- (5) Administering oaths or affirma- ployee shall be made through his or her tions to witnesses; attorney rather than directly with the (6) Conducting the hearing in a man- former employee. ner to maintain discipline and decorum while assuring that relevant, reliable, § 966.7 Answer to petition. and probative evidence is elicited on Within thirty (30) days after the date the issues in dispute, and that irrele- of receipt of the petition, the General vant, immaterial, or repetitious evi- Counsel shall file an answer to the pe- dence is excluded;

337

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00347 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140 § 966.9 39 CFR Ch. I (7–1–06 Edition)

(7) Establishing the record in the § 966.11 Appeal. case; (8) Issuing an initial decision or one The initial or tentative decision will on remand; and become final and an order to that ef- (9) Granting, at the request of either fect will be issued by the Judicial Offi- party, reasonable time extensions. cer thirty (30) days after issuance and (b) The Judicial Officer, in addition receipt by the parties of the initial or to possessing such authority as is de- tentative decision unless the Judicial scribed elsewhere in this part, shall Officer, in his discretion, grants review possess all of the authority and respon- upon appeal by either party, or on his sibilities of a Hearing Official. own motion. If an appeal is denied, the initial or tentative decision becomes § 966.9 Opportunity for oral hearing. the final agency decision upon the An oral hearing generally will be issuance of such denial. The Judicial held only in those cases which, in the Officer’s decision on appeal is the final opinion of the Hearing Official, cannot agency decision with no further right be resolved by a review of the docu- of appeal within the agency. mentary evidence, such as when the existence, or amount, of a debt turns on § 966.12 Waiver of rights. issues of credibility or veracity. An The Hearing Official may determine oral hearing includes an in-person the former employee has waived his or hearing, a telephonic hearing, or a her right to a hearing and administra- hearing by video conference. When the Hearing Official determines that an tive offset may be initiated if the oral hearing is not necessary, the deci- former employee: sion shall be based solely on written (a) Files a petition for hearing after submissions. the end of the prescribed thirty (30) day period, and fails to demonstrate to the § 966.10 Initial decision. satisfaction of the Hearing Official (a) After the receipt of written sub- good cause for the delay; missions or after the conclusion of the (b) Has received notice to appear at hearing and the receipt of any post- an oral hearing but fails to do so with- hearing briefs, the Hearing Official out showing circumstances beyond the shall issue a written initial decision, former employee’s control; including findings of fact and conclu- (c) Fails to file required submissions sions of law, which the Hearing Official or to comply with orders of the Hear- relied upon in determining whether the ing Official; or former employee is indebted to the (d) Files a withdrawal of his or her Postal Service, or in upholding or re- petition for a hearing with the Re- vising the administrative offset sched- corder. ule proposed by the Postal Service for collecting a former employee’s debt. § 966.13 Ex parte communications. When the Judicial Officer presides at a hearing he or she shall issue a final or Ex parte communications between a a tentative decision. Hearing Official or his or her staff and (b) The Hearing Official shall a party shall not be made. This prohi- promptly send to each party a copy of bition does not apply to procedural the initial or tentative decision, and a matters. A memorandum of any com- statement describing the right of ap- munication between the Hearing Offi- peal to the Judicial Officer in accord- cial and a party will be transmitted to ance with § 966.11. both parties.

338

VerDate Aug<31>2005 09:42 Aug 01, 2006 Jkt 208140 PO 00000 Frm 00348 Fmt 8010 Sfmt 8010 Y:\SGML\208140.XXX 208140