Post Office Organization and Administration: Establishment, Classification, and Discontinuance, 66184-66187 [2011-27641]
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66184
Federal Register / Vol. 76, No. 207 / Wednesday, October 26, 2011 / Rules and Regulations
Dated: October 18, 2011.
Waverly W. Gregory, Jr.,
Bridge Program Manager, By direction of the
Commander, Fifth Coast Guard District.
[FR Doc. 2011–27721 Filed 10–25–11; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–0972]
Drawbridge Operation Regulation;
Nanticoke, Seaford, DE
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
ACTION:
The Commander, Fifth Coast
Guard District, has issued a temporary
deviation from the regulation governing
the operation of the SR 13 Bridge across
the Nanticoke River, mile 39.6, at
Seaford, DE. The deviation is necessary
to accommodate the cleaning and
painting of the bridge. This deviation
allows the bridge to remain in the
closed position throughout the month of
November to facilitate the maintenance
work.
DATES: This deviation is effective from
12:01 a.m. on November 1, 2011 to
11:59 on November 30, 2011.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of docket USCG–2011–
0972 and are available online by going
to https://www.regulations.gov, inserting
USCG–2011–0972 in the ‘‘Keyword’’
box and then clicking ‘‘Search’’. They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
e-mail Lindsey Middleton, Bridge
Management Specialist, Coast Guard;
telephone 757–398–6629, e-mail
Lindsey.R.Middleton@uscg.mil. If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION: Marinis
Bros. Inc., on behalf of Delaware
Department of Transportation (DelDOT),
has requested a temporary deviation
from the current operating regulation of
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SUMMARY:
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the SR 13 Bridge across the Nanticoke
River, mile 39.6, at Seaford, DE. The
requested deviation is to accommodate
painting and cleaning of the bridge. The
vertical clearance of this single-leaf
bascule bridge is three feet at mean high
water (MHW) in the closed position and
unlimited in the open position. During
this deviation period, the vertical
clearance will be limited to one foot at
MHW due to the scaffolding that will be
used for the maintenance of the bridge.
The bridge will remain in the closed
position for the entire month. In critical
situations the bridge will be able to
open if at least 24 hours of notice is
given. There are no alternate routes
available to vessels.
The current operating schedule for the
bridge is set out in 33 CFR 117.243(b).
According to that schedule, during the
month of November the bridge shall
open on signal, except that from 6 p.m.
to 8 a.m. Monday through Friday and
3:30 p.m. through 7:30 a.m. Saturday
and Sunday, if at least four hours notice
is given.
Logs from November 2010 have
shown that there were 20 openings for
the entire month. Sixteen of those
openings were on November 13th and
14th. The openings were due to a Bass
Fishing Tournament; however, the
tournament is not scheduled for this
year minimizing the amount of
anticipated openings. The majority of
vessel traffic utilizing this waterway is
recreational boaters. There is one
mariner that requests most of the bridge
openings throughout the winter months.
Marinis Bros., Inc. has coordinated with
this mariner. DelDOT has coordinated
with the town concerning the month
long bridge closure as well. The Coast
Guard will inform all other users of the
waterway through our Local and
Broadcast Notices to Mariners so that
mariners can arrange their transits to
minimize any impact caused by the
temporary deviation. The Coast Guard
will also require the bridge owner to
post signs on either side of the bridge
notifying mariners of the temporary
regulation change.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: October 12, 2011.
Waverly W. Gregory, Jr.,
Bridge Program Manager, Fifth Coast Guard
District.
[FR Doc. 2011–27722 Filed 10–25–11; 8:45 am]
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POSTAL SERVICE
39 CFR Part 241
Post Office Organization and
Administration: Establishment,
Classification, and Discontinuance
Postal Service.
Final rule.
AGENCY:
ACTION:
The Postal Service is
amending its regulations to improve the
administration of the Post Office closing
and consolidation process. This final
rule adopts changes to Postal Service
regulations pertaining to the definition
of ‘‘consolidation’’ and the staffing of
Post Offices.
DATES: Effective Date: December 1, 2011.
FOR FURTHER INFORMATION CONTACT: Jim
Boldt, (202) 268–6799.
SUPPLEMENTARY INFORMATION: On March
31, 2011, the Postal Service published a
proposed rule in the Federal Register
(76 FR 17794) to improve the process for
discontinuing Post Offices and other
Postal Service-operated retail facilities.
The proposed rule also included various
proposals to apply certain
discontinuance procedures to all retail
facilities operated by Postal Service
employees. The Postal Service requested
comments on the proposed rule.
On July 13, 2011, the Postal Service
published an initial final rule (76 FR
41413), with minor corrections
published on July 21, 2011 (76 FR
43898). That final rule responded to
comments and made numerous changes
from the proposed rule, resulting in
revised regulations that took effect on
July 14, 2011. In the final rule, the
Postal Service noted that certain aspects
of the proposed rule were subject to
then-ongoing consultations under 39
U.S.C. 1004(b)–(d). As a result, the first
final rule implemented only changes to
39 CFR part 241 that were not subject
to ongoing consultations. 76 FR 41413.
The Postal Service advised that changes
subject to consultation—namely, those
concerning the definition of
‘‘consolidation’’ and the staffing of Post
Offices—were being deferred and could
be addressed in a subsequent final rule.
Id. at 41414–15.
At this time, the consultations
referenced in the first final rule have
run their course, and the Postal Service
is prepared to issue the remaining
proposed changes, with minor
modifications as explained in section III
below. Analysis of the pertinent
comments received appears below. With
the changes described herein, the final
rule will take effect upon the
publication of corresponding changes in
SUMMARY:
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the Postal Bulletin, scheduled for
December 1, 2011.
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I. Response to Comments Received
As recounted in the first final rule (76
FR 41413), the Postal Service received
approximately 257 comments in
response to the proposed rule.
Commenters included 34 Members of
Congress, the Postal Regulatory
Commission (‘‘Commission’’ or ‘‘PRC’’),
five state legislators, three postmasters’
and postal supervisors’ organizations,
one postal lessors’ organization and
various of its members, one mailing
industry stakeholder, and numerous
other postal customers. Although some
comments were favorable about certain
aspects of the proposed rule, almost all
of the comments expressed concerns
about various aspects of the proposed
rule. Below we discuss the comments
pertinent to this final rule and our
response to each.
A. Definition of ‘‘Consolidation’’
Several commenters expressed
concern about the proposed rule’s
interpretation of ‘‘consolidation,’’ such
that the term would no longer apply to
the conversion of a Post Office into a
Postal Service-operated station or
branch. In particular, these commenters
claim that this approach, combined with
the fact that 39 U.S.C. 404(d)(5) does not
confer appeal rights for closings or
consolidations of stations and branches,
could result in an effective denial of
appeal rights if the Postal Service were
to convert a Post Office into a station or
branch and then proceed to close or
consolidate the facility. Comments
about appeal rights were discussed in
the first final rule (76 FR 41414–15).
Overall, this rulemaking expands the
circumstances in which full-blown
discontinuance studies are used; hence,
it increases the overall transparency of
discontinuance decisions affecting
Postal Service-operated retail facilities.
Previously, stations and branches
studied for discontinuance were studied
in a faster, less intensive process. See
PRC, Advisory Opinion Concerning the
Process for Evaluating Closing Stations
and Branches (‘‘SBOC Opinion’’),
Docket No. N2009–1, March 10, 2010, at
48–57, 61–65 (exploring differences
between the discontinuance processes
for Post Offices and for stations and
branches).
Contrary to longstanding arguments
by the Postal Service resting on much of
the legislative history and case law on
which some of the comments rely, the
Commission, labor organizations, and
others have asserted that customers
perceive no functional difference
between a Post Office and a classified
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station or classified branch. See, e.g.,
SBOC Opinion at 52, 64; Comments of
American Postal Workers Union, AFL–
CIO, Eugene Area Local No. 679, PRC
Docket No. A2011–4, January 21, 2011,
at 1–3. While the Postal Service
continues to disagree with the
proponents of this view as to whether
that lack of perceived difference has
legal relevance, the Postal Service
acknowledges the practical vitality of
the observation. As a result, it is
difficult to understand what concrete
purpose would be furthered by
continuing to apply discontinuance
procedures to the conversion of one
Postal Service-operated retail facility
type to another, when customers will
not see any significant difference in
service. In contrast, customers are more
likely to experience or perceive an
impact from the replacement of a Postal
Service-operated retail facility with a
contractor-operated retail facility.
‘‘Consolidation,’’ in its former sense
of changing a Post Office into a station
or branch of another Post Office, has
rarely been applied over the last 20
years. From the perspective of postal
customers, a conversion between Postal
Service-operated retail facility types has
only minimal impact, as few customers
are aware of the distinction between
different types of retail units.
Unlike classified stations and
branches, contractor-operated retail
facilities can be closed without being
subject to the discontinuance process.
Relationships established through a
contract have alternative mechanisms
for termination or other changes. The
continuation of contractor-operated
facilities is much more dependent on
the contractor’s willingness to furnish
services under contract for a reasonable
fee. Contractor-operated units may
accordingly experience less
predictability in their continuation.
Hence, it is more important that
customers and other stakeholders have
an opportunity to provide input when a
Postal Service-operated retail facility is
converted into a contractor-operated
retail facility than when a conversion
results in Postal Service-operated
classified station or branch. The latter
are not subject to the greater
unpredictability of a contractoroperator, and so customers are unlikely
to perceive a significant difference in
service when a Post Office is converted
into a Postal Service-operated classified
station or branch.
Two postmaster organizations
submitted a legal opinion to the effect
that the proposed approach to
‘‘consolidation’’ runs counter to a
consistent definition provided by
legislative history, courts, and the Postal
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66185
Service itself. This legal analysis
appears to overlook the fact that most of
the authorities on which it relies, some
of which date back to the 1970s, were
premised on Postal Service regulations
in effect at the time and did not speak
to whether the Postal Service was
somehow precluded from changing
those regulations. That the Postal
Service’s previous interpretation of
‘‘consolidation’’ was found to be
reasonable does not mean that that
interpretation is the only reasonable and
valid one. See Citizens for the Hopkins
Post Office v. United States Postal Serv.,
830 F. Supp. 296, 299 (D.S.C. 1993)
(‘‘This court finds the definition of
‘consolidation’ advanced by the Postal
Service [in its then-current regulations]
to be one which is reasonable[.]’’
(emphasis added)).1
The United States Supreme Court has
long held that an ‘‘initial agency
interpretation [of a statute] is not
instantly carved in stone’’ and that any
agency ‘‘must consider varying
interpretations and the wisdom of its
policy on a continuing basis.’’ Chevron,
U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837,
863–64 (1984). This is the case even
where a revised interpretation
‘‘represents a sharp break with prior
interpretations.’’ Id. at 862. Because the
plain language of the statute is silent
and ambiguous as to the intended
definition of ‘‘consolidation,’’ and
because the Postal Service is charged
with implementing 39 U.S.C. 404(d), the
Postal Service is free to revise its
interpretation of the statute so long as
its interpretation is reasonable. See id. at
842–43; Rust v. Sullivan, 500 U.S. 173,
186–87 (1991); see also Citizens for the
Hopkins Post Office, 830 F. Supp. at
298–99 (‘‘The term ‘consolidation’ as
used in § 404(b) [now 404(d)] is not
defined in the statute. Consequently,
this court will begin with the principle
that the construction placed on a statute
by the agency charged with
administering it is entitled to
considerable deference and should be
upheld if reasonable.’’). In the proposed
rule and elsewhere in this final rule, the
Postal Service has explained why it is
reasonable to revise its interpretation of
‘‘consolidation’’ in order to give sensible
and feasible effect to larger regulatory
1 The author of the legal opinion appears to have
misquoted this sentence of the Citizens for the
Hopkins Post Office opinion as referring to ‘‘the
[sic] one which is reasonable.’’ This error may help
to explain why the author reads the opinion as
supporting the author’s conclusion that the Postal
Service’s historical interpretation of
‘‘consolidation’’ is the only permissible one, rather
than one of multiple interpretive possibilities. The
actual quotation supports the latter view.
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changes that will increase transparency
and public participation.
The same legal opinion cited a
pleading filed by the Postal Service in
an ongoing federal action to support its
view that the instant rulemaking
somehow undoes an indelible aspect of
postal law. The legal opinion fails to
note that the subject matter of the
litigation and the quoted pleading itself
concern Postal Service regulations in
effect at the time. They do not prejudice
the Postal Service’s authority or
discretion to revise those regulations at
a later time. An agency is entitled to
defend its actions based on its legal
interpretation and regulations in effect
at the applicable time, rather than on
prior or subsequent policies and
regulations. As the Postal Service noted
in its proposed rule and first final rule,
and reiterates here, this rulemaking is
not retroactive and does not affect any
actions taken by the Postal Service
under previous regulations. See
generally, Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 208 (1988) (holding
that agency regulations are not
retroactive except as specifically
authorized by Congress).
In sum, the proposed reinterpretation
of ‘‘consolidation’’ is within the Postal
Service’s authority to administer the
statutory scheme. The Postal Service is
adopting a new interpretation of the
existing statutory term, while
continuing to apply the discontinuance
procedures established by Congress to
consolidations as distinct from closings.
The proposed interpretation is
reasonable in its own right and goes a
long way toward closing the gap
between respective Postal Service and
Commission positions. It also fits into
the larger framework of changes to
orient discontinuance processes more
appropriately around customer
expectations—as the Commission and
others have recommended for years—
and to increase public transparency and
participation.
B. Staffing of Post Offices
Many commenters expressed the view
that the Postmaster Equity Act, Public
Law 108–86 (2003), precludes the
proposed change to 39 CFR 241.1 such
that a Post Office may be staffed by nonpostmaster personnel. As codified in 39
U.S.C. 1004(i)(3), the Postmaster Equity
Act defines a ‘‘postmaster’’ as ‘‘an
individual who is the manager in charge
of the operations of a post office, with
or without the assistance of subordinate
managers or supervisors.’’
The Postmaster Equity Act serves the
purpose of requiring consultation by the
Postal Service with groups representing
middle management tiers regarding,
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among other things, pay policies and
schedules. It was not intended to—and
unambiguously did not—modify the
Postal Service’s authority to determine
the staffing and scope of its retail
facility network. See 39 U.S.C. 403(b)(1),
403(b)(3), 404(a)(3), 1001(e)(4)–(5).
Congress was explicit in framing
Section 1004(i)’s definitions as
applicable only ‘‘for purposes of this
section.’’ 39 U.S.C. 1004(i). Cf. United
States v. Cons. Life Ins. Co., 430 U.S.
725, 769 (1977) (White, J., dissenting)
(finding a definition under section
801(c)(2) and (3) of the Internal Revenue
Code of 1954 to be inapplicable to rules
for taxing the income of life insurance
companies from modified coinsured
contracts under section 820 of the
Internal Revenue Code of 1954, because
the definition was applicable only ‘‘for
purposes of * * * subsection 801(a)’’);
Thomas v. U.S. Bank Nat’l Ass’n, 575
F.3d 794, 798 (8th Cir. 2009) (construing
preemption language ‘‘for purposes of
this section’’ in 12 U.S.C. 1831d(a) as
meaning that ‘‘conflicting state
constitutions or statutes are not
preempted for every and all purposes,
but only for purposes of ‘this section’’’).
Congress could have applied Section
1004(i)’s definitions to title 39 more
broadly or even to section 404(d) in
particular, but it did not do so.
Therefore, the limited context of the
Postmaster Equity Act is inapposite to
this rulemaking.
Even if the Postmaster Equity Act had
some import in this context, the
proposed rule would not be inconsistent
with the definition of a ‘‘postmaster’’
therein. The Postmaster Equity Act does
not require that each postmaster manage
only one Post Office or that every Post
Office be individually staffed by a
postmaster. Indeed, in many cities,
postmasters are responsible for a main
Post Office and several classified
stations and branches, which the
Commission has repeatedly described as
having no functional difference from
customers’ perspectives from Post
Offices. The Postal Service is confident
that rural postmasters would be
similarly capable of overseeing
operations at more than one retail
facility.
Decisions about the staffing of Post
Offices are within the Postal Service’s
general authority to manage Post Offices
and staff appointments under the Postal
Reorganization Act provisions cited
above. The proposed rule is consistent
with the definition of a postmaster
under the Postmaster Equity Act,
exercises appropriate and reasonable
rule-making authority under the Postal
Reorganization Act, and streamlines
postal operations in order to reduce
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costs and enhance value. Therefore, it is
a reasonable exercise of the Postal
Service’s authority to administer its
statutory objectives, and it is not
inconsistent with title 39 of the U.S.
Code.
One commenter was concerned that,
as a result of the same change, the
presence of Post Offices staffed by nonpostmaster personnel would make it
easier for the Postal Service to close
those facilities. It is unclear how such
an effect would flow from mere staffing
arrangements, however. The same
requirements, criteria, and procedures
apply to all Post Offices, regardless of
how they are staffed. As explained in
the proposed rule, those same
requirements, criteria, and procedures
are now applied, as a matter of policy,
to Postal Service-operated stations and
branches, which are not staffed by
postmasters today. If anything, this
change could lead to the continued
operation of Post Offices that otherwise
would be discontinued, due to the
Postal Service’s ability to staff them in
a more flexible and economical fashion.
Another commenter viewed the
proposed change to 39 CFR 241.1 as
inconsistent with Employee and Labor
Relations Manual (ELM) 113.3, which
the commenter believed to correspond
to 39 U.S.C. 1004(i)(3). ELM 113.3(k)
reflects the Postal Service’s previous
practice of requiring a postmaster at all
Post Offices. As explained above, 39
U.S.C. 1004(i)(3) defines a ‘‘postmaster’’
in association with a Post Office, but
does not require that a Post Office be
associated with a postmaster staffing
each Post Office in all cases. Hence, the
Postal Service is not precluded by
statute from taking a different approach.
The Postal Service plans to update ELM
113.3(k) to reflect the change to 39 CFR
241.1.
A postal supervisors’ organization
raised concerns that the replacement of
Executive and Administrative Schedule
(EAS) employees with bargaining-unit
employees, and/or postmasters with
clerks-in-charge, would increase
workload, deprive communities of
access to knowledgeable management
personnel, and not offer significant cost
savings in light of current pay ceilings.
The Postal Service has not yet
determined to take any such specific
action in furtherance of these changes to
the overarching regulations. Any
particular staffing decision would
presumably take account of workload,
community needs, and cost savings. In
this rulemaking, the Postal Service only
removes, as a general matter, a selfimposed restriction on its discretion to
make such decisions in instances where
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more flexible staffing may be the most
rational option.
Authority: 39 U.S.C. 101, 401, 403, 404,
410, 1001.
II. Explanation of Changes From
Proposed Rule
■
The final rule includes the following
additional changes to the proposed rule.
Paragraph 241.1(a) has been revised to
clarify that the operation or staffing of
a Post Office by non-postmaster
personnel must be at the direction of the
postmaster, and that it may include
times when the postmaster is not
physically present. While the proposed
rule referred to whether a Post Office
was ‘‘operated or managed’’ by nonpostmaster personnel, the phrase
‘‘operated or staffed’’ better reflects the
intended meaning that a postmaster
would continue to manage operations at
the Post Office, albeit possibly without
personally operating or staffing it on a
continuous basis.
A sentence is added to paragraph
241.3(a)(1)(ii) (redesignated as
241.3(a)(1)(iii)) to clarify that these
regulations will no longer apply to
discontinuance actions pending as of
December 1, 2011, that pertain to the
conversion of a Post Office to another
type of USPS-operated facility.
The definition of ‘‘consolidation’’ in
paragraph 241.3(a)(2)(iv) is revised to
restrict the term’s definition to instances
where a Postal Service-operated retail
facility is replaced with a contractoroperated retail facility that reports to a
Postal Service-operated retail facility.
Consistent with the proposed rule, the
term no longer encompasses situations
where a Post Office is replaced with a
Classified Station or Classified Branch.
Paragraph 241.3(b)(4) is revised to
indicate the possibility that a
consolidated facility’s name, or a similar
name, can be used by the succeeding
facility, rather than suggesting an
expectation that the former name will be
maintained, thereby allowing for the
range of contract- and service-specific
circumstances that can affect such a
determination.
The Postal Service hereby adopts the
following changes to 39 CFR part 241.
§ 241.1
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Organization and functions
(government agencies), Postal Service.
Accordingly, 39 CFR part 241 is
amended as follows:
PART 241—RETAIL ORGANIZATION
AND ADMINISTRATION:
ESTABLISHMENT, CLASSIFICATION,
AND DISCONTINUANCE
1. The authority citation for 39 CFR
part 241 continues to read as follows:
■
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(a) Establishment. Post Offices are
established and maintained at locations
deemed necessary to ensure that regular
and effective postal services are
available to all customers within
specified geographic boundaries. A Post
Office may be operated or staffed by a
postmaster or by another type of postal
employee at the direction of the
postmaster, including when the
postmaster is not physically present.
*
*
*
*
*
■ 3. In § 241.3:
■ a. Paragraph (a)(1)(i)(B) is revised;
■ b. Paragraph (a)(1)(ii) is redesignated
as paragraph (a)(1)(iii), and new
paragraph (a)(1)(ii) is added;
■ c. Newly redesignated paragraph
(a)(1)(iii) is revised;
■ d. Paragraph (a)(2)(iv) is revised;
■ e. Paragraph (b)(2)(i) is revised;
■ f. Paragraph (b)(4) is revised; and
■ g. Paragraph (c)(2) is revised.
The revisions and additions read as
follows:
(iv) ‘‘Consolidation’’ means an action
that converts a Postal Service-operated
retail facility into a contractor-operated
retail facility. The resulting contractoroperated retail facility reports to a Postal
Service-operated retail facility.
*
*
*
*
*
(b) * * *
(2) * * *
(i) In a consolidation, the ZIP Code for
the replacement contractor-operated
retail facility is the ZIP Code originally
assigned to the discontinued facility.
*
*
*
*
*
(4) Name of facility established by
consolidation. If a USPS-operated retail
facility is consolidated by establishing
in its place a contractor-operated
facility, the replacement unit can be
given the same name of the facility that
is replaced, if appropriate in light of the
nature of the contract and level of
service provided.
(c) * * *
(2) Consolidation. The proposed
action may include a consolidation of
USPS-operated retail facilities. A
consolidation arises when a USPSoperated retail facility is replaced with
a contractor-operated retail facility.
*
*
*
*
*
§ 241.3 Discontinuance of USPS-operated
retail facilities.
Stanley F. Mires,
Attorney, Legal Policy and Legislative Advice.
(a) * * *
(1) * * *
(i) * * *
(B) Combine a USPS-operated Post
Office, station, or branch with another
USPS-operated retail facility, or
(ii) The conversion of a Post Office
into, or the replacement of a Post Office
with, another type of USPS-operated
retail facility is not a discontinuance
action subject to this section. A change
in the staffing of a Post Office such that
it is staffed only part-time by a
postmaster, or not staffed at all by a
postmaster, but rather by another type of
USPS employee, is not a discontinuance
action subject to this section.
(iii) The regulations in this section are
mandatory only with respect to
discontinuance actions for which initial
feasibility studies have been initiated on
or after July 14, 2011. Unless otherwise
provided by responsible personnel, the
rules under § 241.3 as in effect prior to
July 14, 2011 shall apply to
discontinuance actions for which initial
feasibility studies have been initiated
prior to July 14, 2011. Discontinuance
actions pending as of December 1, 2011,
that pertain to the conversion of a Post
Office to another type of USPS-operated
facility are no longer subject to these
regulations.
(2) * * *
[FR Doc. 2011–27641 Filed 10–25–11; 8:45 am]
2. In § 241.1, paragraph (a) is revised
to read as follows:
List of Subjects in 39 CFR Part 241
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BILLING CODE 7710–12–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2009–0538; FRL–8891–3]
Bacteriophage of Clavibacter
Michiganensis Subspecies
Michiganensis; Exemption From the
Requirement of a Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes an
exemption from the requirement of a
tolerance for residues of lytic
bacteriophage of Clavibacter
michiganensis subspecies
michiganensis produced in Clavibacter
michiganensis subspecies
michiganensis in or on tomato when
applied as a bactericide in accordance
with good agricultural practices. On
behalf of OmniLytics, Inc., Interregional
Research Project Number 4 (IR–4)
submitted a petition to EPA under the
Federal Food, Drug, and Cosmetic Act
(FFDCA) requesting an exemption from
SUMMARY:
E:\FR\FM\26OCR1.SGM
26OCR1
Agencies
[Federal Register Volume 76, Number 207 (Wednesday, October 26, 2011)]
[Rules and Regulations]
[Pages 66184-66187]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27641]
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POSTAL SERVICE
39 CFR Part 241
Post Office Organization and Administration: Establishment,
Classification, and Discontinuance
AGENCY: Postal Service.
ACTION: Final rule.
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SUMMARY: The Postal Service is amending its regulations to improve the
administration of the Post Office closing and consolidation process.
This final rule adopts changes to Postal Service regulations pertaining
to the definition of ``consolidation'' and the staffing of Post
Offices.
DATES: Effective Date: December 1, 2011.
FOR FURTHER INFORMATION CONTACT: Jim Boldt, (202) 268-6799.
SUPPLEMENTARY INFORMATION: On March 31, 2011, the Postal Service
published a proposed rule in the Federal Register (76 FR 17794) to
improve the process for discontinuing Post Offices and other Postal
Service-operated retail facilities. The proposed rule also included
various proposals to apply certain discontinuance procedures to all
retail facilities operated by Postal Service employees. The Postal
Service requested comments on the proposed rule.
On July 13, 2011, the Postal Service published an initial final
rule (76 FR 41413), with minor corrections published on July 21, 2011
(76 FR 43898). That final rule responded to comments and made numerous
changes from the proposed rule, resulting in revised regulations that
took effect on July 14, 2011. In the final rule, the Postal Service
noted that certain aspects of the proposed rule were subject to then-
ongoing consultations under 39 U.S.C. 1004(b)-(d). As a result, the
first final rule implemented only changes to 39 CFR part 241 that were
not subject to ongoing consultations. 76 FR 41413. The Postal Service
advised that changes subject to consultation--namely, those concerning
the definition of ``consolidation'' and the staffing of Post Offices--
were being deferred and could be addressed in a subsequent final rule.
Id. at 41414-15.
At this time, the consultations referenced in the first final rule
have run their course, and the Postal Service is prepared to issue the
remaining proposed changes, with minor modifications as explained in
section III below. Analysis of the pertinent comments received appears
below. With the changes described herein, the final rule will take
effect upon the publication of corresponding changes in
[[Page 66185]]
the Postal Bulletin, scheduled for December 1, 2011.
I. Response to Comments Received
As recounted in the first final rule (76 FR 41413), the Postal
Service received approximately 257 comments in response to the proposed
rule. Commenters included 34 Members of Congress, the Postal Regulatory
Commission (``Commission'' or ``PRC''), five state legislators, three
postmasters' and postal supervisors' organizations, one postal lessors'
organization and various of its members, one mailing industry
stakeholder, and numerous other postal customers. Although some
comments were favorable about certain aspects of the proposed rule,
almost all of the comments expressed concerns about various aspects of
the proposed rule. Below we discuss the comments pertinent to this
final rule and our response to each.
A. Definition of ``Consolidation''
Several commenters expressed concern about the proposed rule's
interpretation of ``consolidation,'' such that the term would no longer
apply to the conversion of a Post Office into a Postal Service-operated
station or branch. In particular, these commenters claim that this
approach, combined with the fact that 39 U.S.C. 404(d)(5) does not
confer appeal rights for closings or consolidations of stations and
branches, could result in an effective denial of appeal rights if the
Postal Service were to convert a Post Office into a station or branch
and then proceed to close or consolidate the facility. Comments about
appeal rights were discussed in the first final rule (76 FR 41414-15).
Overall, this rulemaking expands the circumstances in which full-
blown discontinuance studies are used; hence, it increases the overall
transparency of discontinuance decisions affecting Postal Service-
operated retail facilities. Previously, stations and branches studied
for discontinuance were studied in a faster, less intensive process.
See PRC, Advisory Opinion Concerning the Process for Evaluating Closing
Stations and Branches (``SBOC Opinion''), Docket No. N2009-1, March 10,
2010, at 48-57, 61-65 (exploring differences between the discontinuance
processes for Post Offices and for stations and branches).
Contrary to longstanding arguments by the Postal Service resting on
much of the legislative history and case law on which some of the
comments rely, the Commission, labor organizations, and others have
asserted that customers perceive no functional difference between a
Post Office and a classified station or classified branch. See, e.g.,
SBOC Opinion at 52, 64; Comments of American Postal Workers Union, AFL-
CIO, Eugene Area Local No. 679, PRC Docket No. A2011-4, January 21,
2011, at 1-3. While the Postal Service continues to disagree with the
proponents of this view as to whether that lack of perceived difference
has legal relevance, the Postal Service acknowledges the practical
vitality of the observation. As a result, it is difficult to understand
what concrete purpose would be furthered by continuing to apply
discontinuance procedures to the conversion of one Postal Service-
operated retail facility type to another, when customers will not see
any significant difference in service. In contrast, customers are more
likely to experience or perceive an impact from the replacement of a
Postal Service-operated retail facility with a contractor-operated
retail facility.
``Consolidation,'' in its former sense of changing a Post Office
into a station or branch of another Post Office, has rarely been
applied over the last 20 years. From the perspective of postal
customers, a conversion between Postal Service-operated retail facility
types has only minimal impact, as few customers are aware of the
distinction between different types of retail units.
Unlike classified stations and branches, contractor-operated retail
facilities can be closed without being subject to the discontinuance
process. Relationships established through a contract have alternative
mechanisms for termination or other changes. The continuation of
contractor-operated facilities is much more dependent on the
contractor's willingness to furnish services under contract for a
reasonable fee. Contractor-operated units may accordingly experience
less predictability in their continuation. Hence, it is more important
that customers and other stakeholders have an opportunity to provide
input when a Postal Service-operated retail facility is converted into
a contractor-operated retail facility than when a conversion results in
Postal Service-operated classified station or branch. The latter are
not subject to the greater unpredictability of a contractor-operator,
and so customers are unlikely to perceive a significant difference in
service when a Post Office is converted into a Postal Service-operated
classified station or branch.
Two postmaster organizations submitted a legal opinion to the
effect that the proposed approach to ``consolidation'' runs counter to
a consistent definition provided by legislative history, courts, and
the Postal Service itself. This legal analysis appears to overlook the
fact that most of the authorities on which it relies, some of which
date back to the 1970s, were premised on Postal Service regulations in
effect at the time and did not speak to whether the Postal Service was
somehow precluded from changing those regulations. That the Postal
Service's previous interpretation of ``consolidation'' was found to be
reasonable does not mean that that interpretation is the only
reasonable and valid one. See Citizens for the Hopkins Post Office v.
United States Postal Serv., 830 F. Supp. 296, 299 (D.S.C. 1993) (``This
court finds the definition of `consolidation' advanced by the Postal
Service [in its then-current regulations] to be one which is
reasonable[.]'' (emphasis added)).\1\
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\1\ The author of the legal opinion appears to have misquoted
this sentence of the Citizens for the Hopkins Post Office opinion as
referring to ``the [sic] one which is reasonable.'' This error may
help to explain why the author reads the opinion as supporting the
author's conclusion that the Postal Service's historical
interpretation of ``consolidation'' is the only permissible one,
rather than one of multiple interpretive possibilities. The actual
quotation supports the latter view.
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The United States Supreme Court has long held that an ``initial
agency interpretation [of a statute] is not instantly carved in stone''
and that any agency ``must consider varying interpretations and the
wisdom of its policy on a continuing basis.'' Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 863-64 (1984).
This is the case even where a revised interpretation ``represents a
sharp break with prior interpretations.'' Id. at 862. Because the plain
language of the statute is silent and ambiguous as to the intended
definition of ``consolidation,'' and because the Postal Service is
charged with implementing 39 U.S.C. 404(d), the Postal Service is free
to revise its interpretation of the statute so long as its
interpretation is reasonable. See id. at 842-43; Rust v. Sullivan, 500
U.S. 173, 186-87 (1991); see also Citizens for the Hopkins Post Office,
830 F. Supp. at 298-99 (``The term `consolidation' as used in Sec.
404(b) [now 404(d)] is not defined in the statute. Consequently, this
court will begin with the principle that the construction placed on a
statute by the agency charged with administering it is entitled to
considerable deference and should be upheld if reasonable.''). In the
proposed rule and elsewhere in this final rule, the Postal Service has
explained why it is reasonable to revise its interpretation of
``consolidation'' in order to give sensible and feasible effect to
larger regulatory
[[Page 66186]]
changes that will increase transparency and public participation.
The same legal opinion cited a pleading filed by the Postal Service
in an ongoing federal action to support its view that the instant
rulemaking somehow undoes an indelible aspect of postal law. The legal
opinion fails to note that the subject matter of the litigation and the
quoted pleading itself concern Postal Service regulations in effect at
the time. They do not prejudice the Postal Service's authority or
discretion to revise those regulations at a later time. An agency is
entitled to defend its actions based on its legal interpretation and
regulations in effect at the applicable time, rather than on prior or
subsequent policies and regulations. As the Postal Service noted in its
proposed rule and first final rule, and reiterates here, this
rulemaking is not retroactive and does not affect any actions taken by
the Postal Service under previous regulations. See generally, Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (holding that agency
regulations are not retroactive except as specifically authorized by
Congress).
In sum, the proposed reinterpretation of ``consolidation'' is
within the Postal Service's authority to administer the statutory
scheme. The Postal Service is adopting a new interpretation of the
existing statutory term, while continuing to apply the discontinuance
procedures established by Congress to consolidations as distinct from
closings. The proposed interpretation is reasonable in its own right
and goes a long way toward closing the gap between respective Postal
Service and Commission positions. It also fits into the larger
framework of changes to orient discontinuance processes more
appropriately around customer expectations--as the Commission and
others have recommended for years--and to increase public transparency
and participation.
B. Staffing of Post Offices
Many commenters expressed the view that the Postmaster Equity Act,
Public Law 108-86 (2003), precludes the proposed change to 39 CFR 241.1
such that a Post Office may be staffed by non-postmaster personnel. As
codified in 39 U.S.C. 1004(i)(3), the Postmaster Equity Act defines a
``postmaster'' as ``an individual who is the manager in charge of the
operations of a post office, with or without the assistance of
subordinate managers or supervisors.''
The Postmaster Equity Act serves the purpose of requiring
consultation by the Postal Service with groups representing middle
management tiers regarding, among other things, pay policies and
schedules. It was not intended to--and unambiguously did not--modify
the Postal Service's authority to determine the staffing and scope of
its retail facility network. See 39 U.S.C. 403(b)(1), 403(b)(3),
404(a)(3), 1001(e)(4)-(5). Congress was explicit in framing Section
1004(i)'s definitions as applicable only ``for purposes of this
section.'' 39 U.S.C. 1004(i). Cf. United States v. Cons. Life Ins. Co.,
430 U.S. 725, 769 (1977) (White, J., dissenting) (finding a definition
under section 801(c)(2) and (3) of the Internal Revenue Code of 1954 to
be inapplicable to rules for taxing the income of life insurance
companies from modified coinsured contracts under section 820 of the
Internal Revenue Code of 1954, because the definition was applicable
only ``for purposes of * * * subsection 801(a)''); Thomas v. U.S. Bank
Nat'l Ass'n, 575 F.3d 794, 798 (8th Cir. 2009) (construing preemption
language ``for purposes of this section'' in 12 U.S.C. 1831d(a) as
meaning that ``conflicting state constitutions or statutes are not
preempted for every and all purposes, but only for purposes of `this
section'''). Congress could have applied Section 1004(i)'s definitions
to title 39 more broadly or even to section 404(d) in particular, but
it did not do so. Therefore, the limited context of the Postmaster
Equity Act is inapposite to this rulemaking.
Even if the Postmaster Equity Act had some import in this context,
the proposed rule would not be inconsistent with the definition of a
``postmaster'' therein. The Postmaster Equity Act does not require that
each postmaster manage only one Post Office or that every Post Office
be individually staffed by a postmaster. Indeed, in many cities,
postmasters are responsible for a main Post Office and several
classified stations and branches, which the Commission has repeatedly
described as having no functional difference from customers'
perspectives from Post Offices. The Postal Service is confident that
rural postmasters would be similarly capable of overseeing operations
at more than one retail facility.
Decisions about the staffing of Post Offices are within the Postal
Service's general authority to manage Post Offices and staff
appointments under the Postal Reorganization Act provisions cited
above. The proposed rule is consistent with the definition of a
postmaster under the Postmaster Equity Act, exercises appropriate and
reasonable rule-making authority under the Postal Reorganization Act,
and streamlines postal operations in order to reduce costs and enhance
value. Therefore, it is a reasonable exercise of the Postal Service's
authority to administer its statutory objectives, and it is not
inconsistent with title 39 of the U.S. Code.
One commenter was concerned that, as a result of the same change,
the presence of Post Offices staffed by non-postmaster personnel would
make it easier for the Postal Service to close those facilities. It is
unclear how such an effect would flow from mere staffing arrangements,
however. The same requirements, criteria, and procedures apply to all
Post Offices, regardless of how they are staffed. As explained in the
proposed rule, those same requirements, criteria, and procedures are
now applied, as a matter of policy, to Postal Service-operated stations
and branches, which are not staffed by postmasters today. If anything,
this change could lead to the continued operation of Post Offices that
otherwise would be discontinued, due to the Postal Service's ability to
staff them in a more flexible and economical fashion.
Another commenter viewed the proposed change to 39 CFR 241.1 as
inconsistent with Employee and Labor Relations Manual (ELM) 113.3,
which the commenter believed to correspond to 39 U.S.C. 1004(i)(3). ELM
113.3(k) reflects the Postal Service's previous practice of requiring a
postmaster at all Post Offices. As explained above, 39 U.S.C.
1004(i)(3) defines a ``postmaster'' in association with a Post Office,
but does not require that a Post Office be associated with a postmaster
staffing each Post Office in all cases. Hence, the Postal Service is
not precluded by statute from taking a different approach. The Postal
Service plans to update ELM 113.3(k) to reflect the change to 39 CFR
241.1.
A postal supervisors' organization raised concerns that the
replacement of Executive and Administrative Schedule (EAS) employees
with bargaining-unit employees, and/or postmasters with clerks-in-
charge, would increase workload, deprive communities of access to
knowledgeable management personnel, and not offer significant cost
savings in light of current pay ceilings. The Postal Service has not
yet determined to take any such specific action in furtherance of these
changes to the overarching regulations. Any particular staffing
decision would presumably take account of workload, community needs,
and cost savings. In this rulemaking, the Postal Service only removes,
as a general matter, a self-imposed restriction on its discretion to
make such decisions in instances where
[[Page 66187]]
more flexible staffing may be the most rational option.
II. Explanation of Changes From Proposed Rule
The final rule includes the following additional changes to the
proposed rule.
Paragraph 241.1(a) has been revised to clarify that the operation
or staffing of a Post Office by non-postmaster personnel must be at the
direction of the postmaster, and that it may include times when the
postmaster is not physically present. While the proposed rule referred
to whether a Post Office was ``operated or managed'' by non-postmaster
personnel, the phrase ``operated or staffed'' better reflects the
intended meaning that a postmaster would continue to manage operations
at the Post Office, albeit possibly without personally operating or
staffing it on a continuous basis.
A sentence is added to paragraph 241.3(a)(1)(ii) (redesignated as
241.3(a)(1)(iii)) to clarify that these regulations will no longer
apply to discontinuance actions pending as of December 1, 2011, that
pertain to the conversion of a Post Office to another type of USPS-
operated facility.
The definition of ``consolidation'' in paragraph 241.3(a)(2)(iv) is
revised to restrict the term's definition to instances where a Postal
Service-operated retail facility is replaced with a contractor-operated
retail facility that reports to a Postal Service-operated retail
facility. Consistent with the proposed rule, the term no longer
encompasses situations where a Post Office is replaced with a
Classified Station or Classified Branch.
Paragraph 241.3(b)(4) is revised to indicate the possibility that a
consolidated facility's name, or a similar name, can be used by the
succeeding facility, rather than suggesting an expectation that the
former name will be maintained, thereby allowing for the range of
contract- and service-specific circumstances that can affect such a
determination.
The Postal Service hereby adopts the following changes to 39 CFR
part 241.
List of Subjects in 39 CFR Part 241
Organization and functions (government agencies), Postal Service.
Accordingly, 39 CFR part 241 is amended as follows:
PART 241--RETAIL ORGANIZATION AND ADMINISTRATION: ESTABLISHMENT,
CLASSIFICATION, AND DISCONTINUANCE
0
1. The authority citation for 39 CFR part 241 continues to read as
follows:
Authority: 39 U.S.C. 101, 401, 403, 404, 410, 1001.
0
2. In Sec. 241.1, paragraph (a) is revised to read as follows:
Sec. 241.1 Post offices.
(a) Establishment. Post Offices are established and maintained at
locations deemed necessary to ensure that regular and effective postal
services are available to all customers within specified geographic
boundaries. A Post Office may be operated or staffed by a postmaster or
by another type of postal employee at the direction of the postmaster,
including when the postmaster is not physically present.
* * * * *
0
3. In Sec. 241.3:
0
a. Paragraph (a)(1)(i)(B) is revised;
0
b. Paragraph (a)(1)(ii) is redesignated as paragraph (a)(1)(iii), and
new paragraph (a)(1)(ii) is added;
0
c. Newly redesignated paragraph (a)(1)(iii) is revised;
0
d. Paragraph (a)(2)(iv) is revised;
0
e. Paragraph (b)(2)(i) is revised;
0
f. Paragraph (b)(4) is revised; and
0
g. Paragraph (c)(2) is revised.
The revisions and additions read as follows:
Sec. 241.3 Discontinuance of USPS-operated retail facilities.
(a) * * *
(1) * * *
(i) * * *
(B) Combine a USPS-operated Post Office, station, or branch with
another USPS-operated retail facility, or
(ii) The conversion of a Post Office into, or the replacement of a
Post Office with, another type of USPS-operated retail facility is not
a discontinuance action subject to this section. A change in the
staffing of a Post Office such that it is staffed only part-time by a
postmaster, or not staffed at all by a postmaster, but rather by
another type of USPS employee, is not a discontinuance action subject
to this section.
(iii) The regulations in this section are mandatory only with
respect to discontinuance actions for which initial feasibility studies
have been initiated on or after July 14, 2011. Unless otherwise
provided by responsible personnel, the rules under Sec. 241.3 as in
effect prior to July 14, 2011 shall apply to discontinuance actions for
which initial feasibility studies have been initiated prior to July 14,
2011. Discontinuance actions pending as of December 1, 2011, that
pertain to the conversion of a Post Office to another type of USPS-
operated facility are no longer subject to these regulations.
(2) * * *
(iv) ``Consolidation'' means an action that converts a Postal
Service-operated retail facility into a contractor-operated retail
facility. The resulting contractor-operated retail facility reports to
a Postal Service-operated retail facility.
* * * * *
(b) * * *
(2) * * *
(i) In a consolidation, the ZIP Code for the replacement
contractor-operated retail facility is the ZIP Code originally assigned
to the discontinued facility.
* * * * *
(4) Name of facility established by consolidation. If a USPS-
operated retail facility is consolidated by establishing in its place a
contractor-operated facility, the replacement unit can be given the
same name of the facility that is replaced, if appropriate in light of
the nature of the contract and level of service provided.
(c) * * *
(2) Consolidation. The proposed action may include a consolidation
of USPS-operated retail facilities. A consolidation arises when a USPS-
operated retail facility is replaced with a contractor-operated retail
facility.
* * * * *
Stanley F. Mires,
Attorney, Legal Policy and Legislative Advice.
[FR Doc. 2011-27641 Filed 10-25-11; 8:45 am]
BILLING CODE 7710-12-P