[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.

------------------------------------------------------------------------
         Service description              Price             Unit        
------------------------------------------------------------------------
                                                                        
               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