[Federal Register: December 5, 1997 (Volume 62, Number 234)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
39 CFR Parts 262 and 265
Records and Information Management Definitions and Release of
AGENCY: Postal Service.
ACTION: Interim rule.
SUMMARY: The Postal Service is amending its 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
DATES: The interim regulations take effect on December 5, 1997.
Comments must be received on or before January 5, 1998.
ADDRESSES: Written comments may be mailed or delivered to Freedom of
Information/Privacy Acts Officer, United States Postal Service, 475
L'Enfant Plaza, SW, Room 8800, Washington, DC 20260-5243.
FOR FURTHER INFORMATION CONTACT: Betty Sheriff, (202) 268-2608.
SUPPLEMENTARY INFORMATION: 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, the interim 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
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 interim changes update organizational titles and the schedule
of fees for searching for records by computer.
The Postal Service has determined to place the amendments
immediately into effect on an interim basis, because many of the key
provisions implement statutory changes that take effect by force of law
on October 2, 1997. Nonetheless, the Postal Service invites interested
persons to submit written comments concerning the interim rule.
These comments will be considered before a final rule is adopted.
List of Subjects
39 CFR Part 262
Archives and records, Records and information management
39 CFR 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
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
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). 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. Any such
material created by the Postal Service on or after November 1, 1996,
also will be available, as of November 1, 1997, 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, Administrative Law
Judges, and Board of Contract Appeals, 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, and 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 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 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
(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. Beginning November 1, 1997, 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
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 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 beginning November 1,
1997, in electronic format at the Postal Service's world wide web site
(6) Listings of employees' names. With 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. Section 265.6(e)(1) is amended by revising the citation
``paragraph (a)(5)'' to read ``paragraph (a)(6)''.
9. Section 265.7(a)(2) is amended by revising the citation
``Sec. 265.6(a)(5)'' to read ``Sec. 265.6(a)(6)''.
10. Sections 265.7 (b) and (c), (d)(1), (e)(1) and (f) (1) and (2)
are revised and sections 265.7 (d)(3) and (g) are added to read as
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
(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
(5) The 20 working day response period allowed in paragraph (b)(2)
of this section may be extended by the custodian, after consultation
with the 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
(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
(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
(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 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 Postal Service (described in paragraph (e) of this section).
* * * * *
(3) When information is deleted from a record that is disclosed in
part, the custodian shall indicate, on the released portion of the
record, the amount of information deleted, unless including that
indication would harm an interest protected by the exemption relied on.
The indication must appear, if technically feasible, at the place in
the record where such deletion is made.
(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.
(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.
11. 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 a 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
A. OS390 Servers:
Batch or On-line Services...... $1,350.00 Hour.
Media Charge (Tape Produced)... 25.00 Volume.
Print.......................... .10 Page.
B. Production Servers:
(Running UNIX or NT OS) On-line 155.00 Hour.
Print.......................... .13 Page.
C. Personal Computers:
On-line search................. 6.25 15 minutes.
Print.......................... .13 Page.
D. Personnel Charges:
Software Systems Services...... 81.00 Hour.
Programming Services........... 70.00 Hour.
Manual Unit Services........... 48.00 Hour.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 97-31598 Filed 12-4-97; 8:45 am]
BILLING CODE 7710-12-P