[Federal Register Volume 63, Number 26 (Monday, February 9, 1998)]
[Rules and Regulations]
[Pages 6480-6483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2907]
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POSTAL SERVICE
39 CFR Parts 262 and 265
Records and Information Management Definitions and Release of
Information
AGENCY: Postal Service.
ACTION: Final rule.
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SUMMARY: This final rule amends Postal Service regulations relating to
the availability of records to the public. This rule is made necessary
by amendments to the Freedom of Information Act, made by Public Law
104-231, the ``Electronic Freedom of Information Act Amendments of
1996.'' The amendments address the availability of electronic records,
the creation of a new electronic reading room, and procedural aspects,
such as time limits, expedited processing, denial specifications, and
reporting requirements.
EFFECTIVE DATE: February 9, 1998.
FOR FURTHER INFORMATION CONTACT: Betty Sheriff, (202) 268-2608.
SUPPLEMENTARY INFORMATION: This rule is substantially the same as the
interim rule with request for comments published on December 5, 1997.
The Freedom of Information Act (5 U.S.C. 552) was amended on October 2,
1996, by Public Law 104-231, the ``Electronic Freedom of Information
Act Amendments of 1996.'' Consistent with the amended law, these
regulations:
a. Add a new category of reading room records consisting of any
records processed and disclosed in response to a FOIA request that the
Postal Service determines have become or are likely to become the
subject of subsequent requests for substantially the same records.
These and other reading room records created on or after November 1,
1996, also will be made available through the Postal Service's world
wide web home page after November 1, 1997.
b. Define the term ``record'' to include electronic records;
provide that the requester may choose the form or format in which to
receive records; and state that the Postal Service will make reasonable
efforts to search for records in electronic form or format unless such
efforts would significantly interfere with the operation of its
computer systems.
c. Extend the period for response from 10 to 20 working days as of
October 2, 1997; provide for notification of the requester when that
period cannot be met to arrange for an alternative time frame or a
modified request; and establish a new procedure for handling requests
for expedited processing.
d. Require the custodian to indicate on the released portion of a
record the amount of information deleted and to include in a written
response an estimate of the volume of any records withheld in full.
e. Change the annual reporting period from a calendar year to the
fiscal year that, for most of the Executive branch, begins on October
1, and provide that those reports will be made available to the
Attorney General and on the Postal Service's world wide web page.
Other changes update organizational titles and the schedule of fees
for searching for records by computer.
Analysis of Comments Received
Two written comments were received. One commenter objected to the
Postal Service's exclusion from the category of reading room records
that will be made available on its world wide web site those records
that were not created by, or on behalf of, the Postal Service. The
commenter stated that a limitation based on who created the records is
unauthorized and contrary to law. It requested that the exclusionary
language appearing in paragraphs 265.5 and 265.6(a)(4) be removed. The
Postal Service disagrees with the commenter's analysis of the statutory
requirement regarding electronic availability as set out in section
552(a)(2) and declines to adopt the requested change for the following
reasons.
The bulk of the material covered by section 552(a)(2)--that is, the
materials described in subparagraphs (A), (B) and (C) of that section--
consists of records that are created by an agency, not merely obtained
by it. Only the newly added category of records subject to multiple
FOIA requests, subparagraph (D), has the potential to include records
created by another entity and later obtained by the agency. The
language of the statute unequivocally limits the electronic
availability requirement to records ``created'' on or after November 1,
1996. This strongly suggests that Congress had in mind records created
by the agency, not records obtained by it. If Congress had meant to
include in this requirement records generated elsewhere, it could have
said ``records created or obtained'' on or after November 1, 1996. We
believe the more reasonable interpretation of the provision--and the
one that better comports with the practicalities of agency
recordkeeping--is that Congress intended only records created by the
agency to be subject to the requirement.
Category (D) records will, of course, be available as conventional
reading room records. Also, the Postal Service may exercise its
discretion to make them electronically available in the appropriate
circumstance.
The other commenter requested the Postal Service add language to
section 265.7(g) to allow records custodians in their discretion to
waive certification in processing requests for expedited review. The
Postal Service sees merit in
[[Page 6481]]
this request and is adopting the suggested change.
Other Changes from Interim Rule
Sections 265.6(a)(2) and (a)(3) are amended to more accurately
identify the Opinions and Manuals available on the Internet.
List of Subjects
Part 262
Archives and records, Records and information management
definitions.
Part 265
Administrative practice and procedure, Courts, Freedom of
information, Government employees, Release of information.
For the reasons set out in the preamble, 39 CFR parts 262 and 265
are amended as set forth below.
PART 262--RECORDS AND INFORMATION MANAGEMENT DEFINITIONS
1. The authority citation for part 262 is revised to read as
follows:
Authority: 5 U.S.C. 552, 552a; 39 U.S.C. 401.
2. Section 262.2(a) is revised to read as follows:
Sec. 262.2 Officials.
(a) Records Custodian. The postmaster or other head of a facility
such as an area vice president, district manager, or head of a postal
installation or department who maintains Postal Service records. Vice
presidents are the custodians of records maintained at Headquarters.
Senior medical personnel are the custodians of restricted medical
records maintained within postal facilities.
* * * * *
3. Section 262.4 introductory text is revised to read as follows:
Sec. 262.4. Records.
Recorded information, regardless of media, format, or physical
characteristics, including electronic data, developed or received by
the Postal Service in connection with the transaction of its business
and retained in its custody; for machine-readable records, a collection
of logically related data treated as a unit.
* * * * *
PART 265--RELEASE OF INFORMATION
4. The authority citation for part 265 continues to read as
follows:
Authority: 5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403,
410, 1001, 2601.
5. Section 265.3(a) is revised to read as follows:
Sec. 265.3 Responsibility.
(a) Custodian. Official records are in the custody of the
postmaster or other head of a facility or department at which they are
maintained, as defined at Sec. 262.2(a) of this chapter. These
custodians are responsible for responding in the first instance to
requests from members of the public for Postal Service records.
* * * * *
6. Section 265.5 is revised to read as follows:
Sec. 265.5 Public reading rooms.
The Library of the Postal Service Headquarters, 475 L'Enfant Plaza
SW, Washington, DC 20260-1641, serves as public reading room for the
materials which are listed in paragraphs (a)(2), (3), (4) and (5) of
Sec. 265.6 as available for public inspection and copying. Such of this
material as has been created by the Postal Service on or after November
1, 1996, and has not been published and offered for sale, also will be
available in electronic format at the Postal Service's world wide web
site at http://www.usps.gov.
7. Section 265.6(a) is revised to read as follows:
Sec. 265.6 Availability of records.
(a) Records available to the public on request--(1) General. Postal
Service records are available for inspection or copying at the request
of any person, in accordance with the provisions of this part, except
as otherwise provided by law or regulations, including but not limited
to paragraphs (b) through (g) of this section. Certain categories of
records of particular interest are available on a continuing basis as
provided in paragraphs (a)(2), (3), and (4) of this section and are
listed in a public index as provided in paragraphs (a)(4) and (5) of
this section. Access to other records may be requested on an individual
basis in accordance with the procedures provided in Sec. 265.7.
Official records which are maintained on an electronic storage medium
will normally be made available, in accordance with this part, as an
exact duplicate of the requested original in a form readable by the
human eye, such as a computer print-out. On request, records will be
provided in a different form or format if they are maintained in the
requested form or format or if they can be readily reproduced in the
requested form or format.
(2) Opinions. All final opinions and orders made in the
adjudication of cases by the Judicial Officer and Administrative Law
Judges, all final determinations pursuant to section 404(b) of title
39, United States Code, to close or consolidate a post office, or to
disapprove a proposed closing or consolidation, all advisory opinions
concerning the private express statutes issued pursuant to 39 CFR
310.6, and all bid protest decisions are on file and available for
inspection and copying at the Headquarters Library and, if created on
or after November 1, 1996, also at the Postal Service's world wide web
site identified at Sec. 265.5.
(3) Administrative manuals and instructions to staff. The manuals,
instructions, and other publications of the Postal Service that affect
members of the public are available through the Headquarters Library
and at many post offices and other postal facilities. Those which are
available to the public but are not listed for sale may be inspected in
the Headquarters Library, at any postal facility which maintains a
copy, or, if created on or after November 1, 1996, through the world
wide web site identified at Sec. 265.5. Copies of publications which
are not listed as for sale or as available free of charge may be
obtained by paying a fee in accordance with Sec. 265.9.
(4) Previously released records. Records processed and disclosed
after March 31, 1997, in response to a Freedom of Information Act
request, which the Postal Service determines have become or are likely
to become the subject of subsequent requests for substantially the same
records, are available for inspection and copying at the Headquarters
Library. Any such records created by the Postal Service on or after
November 1, 1996, also will be available at the Postal Service's world
wide web site identified at Sec. 265.5. Records described in this
paragraph that were not created by, or on behalf of, the Postal Service
generally will not be available at the world wide web site. Records
will be available in the form in which they were originally disclosed,
except to the extent that they contain information that is not
appropriate for public disclosure and may be withheld pursuant to this
section. Any deleted material will be marked and the applicable
exemption(s) indicated in accordance with Sec. 265.7(d)(3). A general
index of the records described in this paragraph is available for
inspection and copying at the Headquarters Library. [Beginning on or
before December 31, 1999, the index also will be available at the
Postal Service's world wide web site.]
(5) Public index. (i) A public index is maintained in the
Headquarters Library and at the world wide web site of all
[[Page 6482]]
final opinions and orders made by the Postal Service in the
adjudication of cases, Postal Service policy statements which may be
relied on as precedents in the disposition of cases, administrative
staff manuals and instructions that affect the public, and other
materials which the Postal Service elects to index and make available
to the public on request in the manner set forth in paragraph (a) of
this section.
(ii) The index contains references to matters issued after July 4,
1967, and may reference matters issued prior to that date.
(iii) Any person may arrange for the inspection of any matter in
the public index in accordance with the procedures of Sec. 265.7.
(iv) Copies of the public index and of matters listed in the public
index may be purchased through the Headquarters Library with payment of
fees as listed in the index or as provided in Sec. 265.9.
(v) Materials listed in the public index that were created on or
after November 1, 1996, will also be available in electronic format at
the Postal Service's world wide web site at http://www.usps.gov.
(6) Listings of employees' names. Upon written request, the Postal
Service will, to the extent required by law, provide a listing of
postal employees working at a particular postal facility.
* * * * *
8.-10. Sections 265.7(b) and (c), (d)(1), (e)(1), (f) (1) and (2),
and (g) are revised to read as follows:
Sec. 265.7 Procedure for inspection and copying of records.
* * * * *
(b) Responsibilities of the custodian. (1) The custodian of the
requested record is the person responsible for determining whether to
comply with or to deny the request. A custodian who is not an Officer
as defined in Sec. 221.8 of this chapter, however, should not deny a
request until he has obtained the advice of Chief Field Counsel. If
denial of a request appears necessary, the custodian should seek advice
as soon as possible after receipt of the request so as to provide
adequate time for legal review. Denial must be made in accordance with
paragraph (d) of this section.
(2) The custodian shall make the determination whether to release
or deny the record(s) within 20 working days (i.e., exclusive of
Saturdays, Sundays, and holidays) of receiving the request, and more
rapidly if feasible. The custodian and the requester may, by mutual
agreement, preferably in writing, establish a different response
period.
(3) If a requested record cannot be located from the information
supplied, the requester should be given an opportunity to supply
additional information and, if feasible, to confer with the custodian
or his/her representative, in an attempt to provide a reasonable
description of the records sought. If additional information is
furnished, the request will be deemed to have been received by the
custodian when sufficient additional information to identify and locate
the record with a reasonable amount of effort has been received.
(4) The custodian shall make reasonable efforts to search for the
records in electronic form or format, except when such efforts would
significantly interfere with the operation of the automated information
system.
(5) The 20 working day response period allowed in paragraph (b)(2)
of this section may be extended by the custodian, after consultation
with Chief Field Counsel or with the General Counsel if the custodian
is at Headquarters, for a period not to exceed an additional 10 working
days, except as provided in paragraph (b)(7) of this section, when, and
to the extent, reasonably necessary to permit the proper processing of
a particular request, under one or more of the following unusual
circumstances:
(i) The request requires a search for and collection of records
from a facility other than that processing the request.
(ii) The request requires the search for, and collection and
appropriate examination of, a voluminous amount of separate and
distinct records.
(iii) The request requires consultation:
(A) With another agency having a substantial interest in the
determination of whether to comply with the request or
(B) Among two or more components of the Postal Service having
substantial subject matter interest in the determination of whether to
comply with the request.
(6) When the custodian finds that the additional time is required,
he shall acknowledge the request in writing within the initial 20-day
response period, state the reason for the delay, and indicate the date
on which a decision as to disclosure is expected.
(7) If a request cannot be processed within the additional time
provided by paragraph (b)(5) of this section, in spite of the exercise
of due diligence, the custodian shall notify the requester of the
exceptional circumstances preventing timely compliance and of the date
by which it is expected that the determination will be made. The
custodian also shall provide the requester an opportunity to limit the
scope of the request so that it may be processed within the extended
time limit, or an opportunity to arrange with the custodian an
alternative time frame for processing the request or a modified
request. The custodian shall nonetheless make a determination on the
request as promptly as possible.
(8) If a requested record is known to have been destroyed, disposed
of, or otherwise not to exist, the requester shall be so notified.
(c) Compliance with request upon affirmative determination by
custodian. (1) When a requested record has been identified and is to be
disclosed in whole or in part, the custodian shall ensure that the
record is made available promptly and shall immediately notify the
requester where and when and under what reasonable conditions, if any,
including the payment of fees, the record will be available for
inspection or copies will be available. Postal Service records will
normally be available for inspection and copying during regular
business hours at the postal facilities at which they are maintained.
The custodian may, however, designate other reasonable locations and
times for inspection and copying of some or all of the records within
his custody.
(2) Any fees authorized or required to be paid in advance by
Sec. 265.9(f)(3) shall be paid by the requester before the record is
made available or a copy is furnished unless payment is waived or
deferred pursuant to Sec. 265.9(g).
(3) A custodian complying with a request may designate a
representative to monitor any inspection or copying.
(d) Denial of request. (1) A reply denying a request in whole or in
part shall be in writing, signed by the custodian or his designee, and
shall include:
(i) A statement of the reason for, or justification of, the denial
(e.g., records personal in nature), including, if applicable, a
reference to the provision or provisions of Sec. 265.6 authorizing the
withholding of the record and a brief explanation of how each provision
applies to the records requested.
(ii) If entire records or pages are withheld, a reasonable estimate
of the number of records or pages, unless providing such estimate would
harm an interest protected by the exemption relied upon.
(iii) The name and title or position of the person responsible for
the denial of the request (see paragraph (d)(2) of this section).
(iv) A statement of the right to appeal and of the appeal procedure
within the
[[Page 6483]]
Postal Service (described in paragraph (e) of this section).
* * * * *
(e) Appeal procedure. (1) If a request to inspect or to copy a
record, or a request for expedited processing of the request, is
denied, in whole or in part, if no determination is made within the
period prescribed by this section, or if a request for waiver of fees
is not granted, the requester may appeal to the General Counsel, U.S.
Postal Service, Washington, DC 20260-1100.
* * * * *
(f) Action on appeals. (1) The decision of the General Counsel or
his designee constitutes the final decision of the Postal Service on
the right of the requester to inspect or copy a record, or to expedited
processing of the request, as appropriate. The General Counsel will
give prompt consideration to an appeal for expedited processing of a
request. All other decisions normally will be made within 20 working
days from the time of the receipt by the General Counsel. The 20-day
response period may be extended by the General Counsel or his designee
for a period not to exceed an additional 10 working days when
reasonably necessary to permit the proper consideration of an appeal,
under one or more of the unusual circumstances set forth in paragraph
(b)(5) of this section. The aggregate number of additional working days
utilized pursuant to this paragraph (f)(1) and paragraph (b) of this
section, however, may not exceed 10.
(2) The decision on the appeal shall be in writing. If the decision
sustains a denial of a record, in whole or in part, or if it denies
expedited processing, it shall state the justification therefor and
shall inform the requester of his right to judicial review. In the case
of records withheld, the decision also shall specify any exemption or
exemptions relied on and the manner in which they apply to the record,
or portion thereof, withheld.
* * * * *
(g) Expedited processing. (1) Criteria. A request for expedited
processing of a request for records shall be granted when the requester
demonstrates compelling need. For purposes of this paragraph,
``compelling need'' exists if:
(i) Failure of the requester to obtain the records on an expedited
basis could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual or;
(ii) In the case of a request made by a person primarily engaged in
disseminating information, there is an urgency to inform the public
concerning actual or alleged federal government activity.
(2) Request. A request for expedited processing shall be directed
in writing to the records custodian. The requester must provide
information in sufficient detail to demonstrate compelling need for the
records and certify this statement to be true and correct to the best
of the requester's knowledge and belief. The custodian may waive the
formality of certification when deemed appropriate.
(3) Determination. The records custodian shall make a determination
of whether to provide expedited processing and notify the requester
within ten days after the date of the request for expedited processing.
If the request is granted, the records custodian shall process the
request for records as soon as practicable. If the request for
expedited processing is denied, the written response will include the
procedures at paragraph (d) of this section for appealing the denial.
Section 265.10 is revised to read as follows:
Sec. 265.10 Annual report.
A report concerning the administration of the Freedom of
Information Act and this part will be submitted to the Attorney General
of the United States on or before February 1 of each year, with the
first such report, for fiscal year 1998, due on or before February 1,
1999. Data for the report will be collected on the basis of fiscal year
that begins on October 1 of each year. The Attorney General, in
consultation with the Director, Office of Management and Budget, will
prescribe the form and content of the report. The report will be made
available to the public at the headquarters Library and on the Postal
Service's world wide web site at http://www.usps.gov.
12. Appendix A to Part 265--Information Services Price List is
revised to read as follows:
Appendix A to Part 265--Information Services Price List
When information is requested that must be retrieved by
computer, the requester is charged for the resources required to
furnish the information. Estimates are provided to the requester in
advance and are based on the following price list.
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Service description Price Unit
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Servers
A. OS390 Servers:
Batch or on-line................... $1,350.00 Hour.
Services........................... 25.00 Volume.
Media Charge (Tape Produced)....... .10 Page.
Print.
B. Production Servers:
(Running UNIX or NT OS)............ 155.00 Hour.
On-line Services................... .13 Page.
Print.
C. Personal Computers:
On-line search..................... 6.25 15.
.13 Minutes.
Print.............................. .......... Page.
D. Personnel Charges:
Software Systems................... 81.00 Hour.
Services........................... 70.00 Hour.
Programming Services............... 48.00 Hour.
Manual Unit Services.
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Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 98-2907 Filed 2-6-98; 8:45 am]
BILLING CODE 7710-12-P