[Federal Register: September 2, 1998 (Volume 63, Number 170)]
[Rules and Regulations]
[Page 46654-46658]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02se98-16]

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POSTAL SERVICE

39 CFR Part 241


Expansion, Relocation, Construction of New Post Offices

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: This final rule establishes procedures by which the Postal
Service notifies local citizens and public officials of facility
projects, and solicits and considers the community's input before
making a final decision to expand an existing facility, relocate to a
new building, or start new construction. The purpose of the rule is to
build into the facility project planning process specific opportunities
and adequate time for the community to be an active participant in the
decision making process and to have its views heard and considered.

DATE: Effective October 5, 1998.

FOR FURTHER INFORMATION CONTACT: John Sorenson, U.S. Postal Service,
Facilities, 4301 Wilson Boulevard, Suite 300, Arlington, VA 22203-1861.
Phone (703) 526-2782.

SUPPLEMENTARY INFORMATION: On May 7, 1998, the Postal Service published
an interim rule (63 FR 25166) that added a new section 241.4 to 39 CFR
Part 241 to require that local citizens and public officials be
notified and invited to comment at critical stages of the planning to
enlarge, relocate, or construct a postal customer service facility. In
addition, the interim rule required postal officials to take into
account community input, including alternative recommendations.
Although the interim rule took effect immediately, the Postal Service
established a 30-day comment period and invited comments from
interested persons and organizations. Nine responses were received.
    The respondents generally supported the intent of the interim
rule--involvement of local communities in facility decisions by the
Postal Service--but differed as to whether and how the rule would
accomplish that intent. Following is a summary of the comments
received, in order of the specific sections of the interim rule to
which they relate.

General Comments and Application; 241.4(a)

    One respondent's letter noted that ``the changes proposed fail to
provide assurance that citizens and postal customers will have any
voice at all in the decisions impacting their communities.'' A state
agency is concerned that the rule does not suggest any significant
changes in USPS policies and urges a greater emphasis on a clear
protocol for dialog between the Postal Service and the public. Another
state agency opposes the rule generally as not giving full
consideration of alternatives or of community preferences as a top
priority. On the other hand, another state agency approved of the
interim rule's clear statement of priorities for facilities projects,
which establish the right context for public participation and the
consideration of alternatives.
    We disagree with the respondents who doubt that the interim rule
sets out effective means to ensure community participation in facility
project decisions. The final rule published today, like the interim
rule, states the Postal Service's priorities for facility projects: the
first consideration is expansion of the present facility; next is
relocation to another building; and last is new construction. The rule
requires and sets time tables for pre-decisional in-person discussion
and formal written notices to elected local officials of the affected
community. It also requires press releases to the local media and
posting in the local post office, as well as an opportunity for a
minimum of one public hearing or meeting (and more as needed), followed
by a comment period for receipt and consideration of additional
comments before a decision is made to expand, relocate, or construct a
post office.
    The question of whether the interim rule is a statement of existing
policies was mentioned by several respondents. The interim rule, and
this final rule, clarify, expand, and formalize, through the Federal
Regulation process, the opportunities for public participation in
facility project decisions that are already embodied in postal policy.
    The views, ideas, and proposals of local citizens and postal
customers are an important part of the process of making facility
project decisions. However, many other factors must also be considered.
Among them are whether an expiring lease can be renegotiated at a
reasonable rent, and operational requirements including access to
transportation, local population growth, and the availability of
buildings that are safe and environmentally healthful for both
customers and employees. The Postal Service agrees that the community's
voice must be heard and its views considered in facility projects that
affect them; however, the final decision remains the responsibility of
the Postal Service.
    One state governmental office expressed concern that the interim
rule does not address the consolidation or closing (i.e., the
``discontinuance'') of post offices. In fact, this facility project
rule is independent of the criteria and requirements for closing or
consolidating post offices. It is not intended to broaden, reduce, or
otherwise modify the scope of the rules related to the discontinuance
of post offices--prescribed by U.S.C. 404(b) and 39 CFR 241.3. Those
requirements and criteria are unchanged by this rule and will continue
in full effect.
    There may be instances where the facility project rule issued today
governs a project that is also covered by the discontinuance rules. For
example, if two post offices are both housed in substandard buildings
in a rural area that has experienced significant population loss, the
Postal Service may consider consolidating the post offices and
relocating all operations to a single new building convenient to both
affected areas. In that situation, the Postal Service would comply both
with the discontinuance rules at 39 CFR 243.1 with respect to the
closing/consolidation decision and with this facility project rule with
respect to the decisions about selecting or building a new facility.
Where the rules prescribe different notice requirements or comment or
waiting periods for a particular action, the longer one, resulting in
greater public participation, would be used. Similarly, as discussed
below, the requirements of section 106 of the National Historic
Preservation Act (NHPA) would also continue to be applicable
independently of this facility

[[Page 46655]]

project rule. Accordingly, no change is required in the language of the
rule in order to preserve the applicability of the consolidation/
closing requirements.

Exemption From Rule for Temporary or Emergency Use; 241.4(a)(1)

    Most of the respondents recommended that the exemption from public
notification and participation when a project is ``to meet an emergency
requirement or is for temporary use'' should be modified to define
``emergency'' and to impose time limits for both emergency and
temporary use. The Postal Service agrees with this recommendation and
has therefore defined ``emergency'' in the final rule to include such
situations as earthquakes, flood, fire, or any other acts of God, and
also the possible inability to renegotiate a renewal of an expiring
lease that could necessitate the relocation of a post office. Also
included within ``emergency'' would be acts of violence against people
or a building. ``Temporary'' space is typically used for special events
such as state or county fairs where the Postal Service might set up a
retail office. It also includes space used during a holiday season,
such as Christmas, for overflow business that cannot safely and
efficiently be handled at an existing post office.
    We agree that time limitations, whether for emergency or temporary
space are important, but are more difficult to define in a way that
allows the reasonable flexibility needed in a nationwide organization
that serves the public under a wide range of conditions. An example of
the need for flexibility is when a fire forces the relocation of postal
operations from one building to another on a temporary basis, but
matters of liability and damages require months or even years to
resolve. Another is when an earthquake or flood devastates an entire
region and there is no realistic way to predict accurately when the
area's governmental infrastructure will return to normalcy so that a
postal relocation project can be shepherded through its system. We
believe that the need for reasonable time limits on the use of
temporary and emergency space without public involvement in the
decision process, and the need for reasonable operational flexibility
can both be met. Accordingly, we have modified this section to include
a time limitation of 180 days for emergency and temporary space, with
additional authorizations in 180-day increments to be made only with
specific approval by the office of Facilities at Postal Service
Headquarters.

Exception for Repairs and Alterations; 241.4(a)(2)

    Several respondents expressed concern about exempting from this
rule facility projects that are limited to repair and alterations,
which include painting, replacement or upgrade of a structural or
functional element of a building, or landscaping. The rule expressly
puts no limit on the amount of repair, replacement, or painting work
that would be exempted from this rule.
    Comments about this section were of two kinds. One is the
recommendation that the Postal Service be required to comply with all
local zoning, land use, and building codes. The other is a concern
that, because the instant rule does not cover maintenance, repair, and
alterations projects, those projects would not be subject to NHPA
procedures that would otherwise apply. Several respondents also raised
these concerns separately from the exception for repairs and
alterations.

Public Meetings or Hearings; 241.4(c)(1) and (c)(4)

    Almost all of the respondents recommended that the public meeting
required by sections 241.4 (c)(1)(iii) and (c)(4)(ii) be mandatory, and
they objected to leaving the door open to any exception. There may be
exceptional circumstances, however, that prevent postal representatives
from attending or conducting a public meeting or hearing on the planned
project within a reasonable time. In that event, and subject in each
instance to the specific approval of the Vice President, Facilities,
the Postal Service would distribute a notification card to all affected
customers, seeking their comment or other feedback. An example of
exceptional circumstances warranting this means of soliciting community
input would be a project in an area quite distant from the seat of
local government or any forum where a postal-conducted meeting could be
held. Therefore, no change was made to this provision other than to
reserve approval for such action to the Vice President, Facilities.
    Three respondents objected to the statement in the interim rule
that if an expansion project was impracticable, that fact would be
disclosed at the meeting and noted in the project file. In some cases,
the Postal Service may have been notified that a leased post office
will no longer be available at the conclusion of a lease term; or the
landlord is demanding rent far above its fair value. In other cases, a
landlord may refuse to make much needed repairs or properly to maintain
the building. In still other situations, a post office may be bounded
by public sidewalks and streets, and it is obvious that expansion is
not possible. Nevertheless, the respondents pointed out the exchange of
needs and information at the public meeting could disclose alternatives
that were not previously apparent or available to the Postal Service.
Having experienced in at least a few instances the expansion of options
as a consequence of public meetings and other public participation, the
Postal Service has revised section 241.4(c)(4)(ii) of the final rule to
incorporate the recommendation.

Posting of Notices in Affected Post Offices; 241.4(c)(4)

    One respondent recommended that the same notice of a facility
project that is given to local officials be posted in the lobby of the
affected post office. In many post offices, that is already a standard
practice. Accordingly, the recommendation is expanded and incorporated
in the final rule to require the posting of the letter to local
officials or the media release or, space permitting, both. If not
already contained in the notice, when a meeting or hearing date is
known, that information will be added to the posting.

Time for Review of Community Input; 241.4(c)(5) and (c)(6)

    In different ways, most respondents felt that the interim rule
allowed little or no time after a public meeting before a project
decision could be made, thus precluding feedback from the community.
They recommended both a waiting period, and an appeals process after
the community is notified of decisions. Three respondents made a
similar recommendation, suggesting the appeals process employed for a
post office discontinuance.
    We agree that community participation in the facility project
process could be improved with longer waiting periods between, for
example, a public meeting and the next decision. We also agree that
some avenue of appeal is an appropriate safeguard of the process.
However, the appeal route used for a post office discontinuance, as
proposed, would stifle rather than open the facility project process.
Accordingly, we have carefully reviewed the entire process for
community input, and in the final rule extended some of the comment
periods and added an avenue of appeal to the Vice President,
Facilities. We have also added a requirement that postal
representatives will advise of appeal rights during the public meeting
or hearing.

[[Page 46656]]

National Historic Preservation Act Concerns; 241.4(d)(1)

    Several respondents addressed the relationship between the interim
rule relating to repair and maintenance projects and the relationship
with the NHPA compliance process.
    Three preservation groups were concerned that the language of the
interim rule meant that the Postal Service intended not to comply with
section 106 of the NHPA or that its compliance would be limited to the
selection of a new building after a decision to move from an existing
post office had been made. In addition, most of the respondents
expressed concern that the protections offered in section 241.4(d)(1)
were ``gutted'' by section 241.4(a)(2) which exempts repairs and
alterations from the rule. Nothing in the interim rule or this final
rule is meant to avoid or diminish the Postal Service's compliance with
historic preservation policies. To the contrary, section 106 of the
NHPA, and the applicable Executive Orders addressing downtown areas and
historic buildings were mentioned in the interim rule specifically to
emphasize that commitment.
    If any project, including repair, maintenance, alteration,
expansion, relocation, or new construction, will have an adverse effect
under provisions of the NHPA or executive orders, the Postal Service
will continue to consider and mitigate such effects independently from
this rule. Accordingly, in order to prevent any misunderstanding, we
have revised section 241.4(d).

Recommendations of Sites for New Facilities; 241.4.(e)

    Two respondents noted a lack of clarity about who may propose
recommended sites, and urged that members of the public be permitted to
do so. One of the two respondents further suggested that an owner of
property not being given further consideration should be notified, in
some manner, in addition to local official notification. For projects
that are relocations or new construction, for example, it has been
standard procedure to advertise in local newspapers for land or
buildings, and to post a notice in the local post office. In addition,
individual contacts are normally made with community officials or
members of the community who may be aware of sites that are not on the
market but might be made available for a postal project. It is the
property owners themselves (or their agents) who propose their sites.
This is generally done in response to an advertisement describing
specific postal requirements, including the preferred area for the new
facility. The notice and public meeting provisions of this final rule
may provide additional opportunity for property owners to indicate
their interest in a sale or lease to the Postal Service. It is also
standard postal practice to notify property owners if their property is
not being considered.

Zoning and Other Local Codes; 241.4(f)

    The Postal Service is a long-term member of nearly every community
and wants to be a good neighbor and supporter of the community's
values. People view their post office as much more than a place to send
and receive mail. A community's post office is a vital part of its
infrastructure; a place to greet old friends, make new ones, and
exchange information. Post offices support the commercial activities of
a town and are relied upon by many businesses to ship and receive
goods, and to communicate with customers. With more than 35,000 leased
and owned postal facilities, the Postal Service takes seriously its
commitment to be a good neighbor and a vital part of every community.
    The facility project rule published today also contains the Postal
Service's policy of complying with local zoning and land use ordinances
and building codes in new construction, repairs, upgrades, and
alterations to its facilities, when it can do so consistent with
dynamic service needs and unique postal requirements. We believe our
record of compliance is a good one. However, to make it mandatory--and
thereby abandon standardized, national service mandates and the need to
accommodate postal needs--would impose an unreasonable burden on the
conduct of a basic service of the national government. It would
severely hamper the Postal Service's ability to provide adequate
facilities to serve all communities in the country, and it could result
in a great departure from the mandate to provide the nation ``basic and
fundamental service'' that is ``prompt, reliable and efficient.'' 39
U.S.C. 101(a). It could result, moreover, in anomalies such as
sprinkler systems that would damage or destroy mail, or handicapped
accessibility for Inspection Service lookout galleries. Delivering mail
is an important federal function. Like other federal entities, the
Postal Service should not be in a position where the fundamental
quality, consistency, and efficiency of its services can be compromised
by various and oftentimes conflicting local requirements.

Summary

    Adding new facilities and upgrading or replacing existing ones is a
continuing activity that is influenced by population growth and shifts,
the increasing automation of mail processing, aging and deteriorating
building stock, and changing environmental and energy conservation
requirements. In order to fulfill its role as a member of virtually
every U.S. community--yet also provide a standardized platform of
economical and universal mail service for the entire country--the
Postal Service believes that to the maximum extent possible it should
undertake its most visibly significant projects--to expand, relocate,
or build a new facility--in partnership with the local community.
    These community relations procedures are being published to help
assure that communities and local public officials, as well as postal
employees, will have the most up-to-date policy for projects that
involve expansion, relocation, or new construction of a postal customer
service facility, and to help assure that such projects are handled in
accordance with the revised procedures.

List of Subjects in 39 CFR Part 241

    Organization and functions (Government agencies).
    Accordingly, the Postal Service adopts the following amendment to
39 CFR Part 241.

PART 241--[AMENDED]

    1. The authority citation for 39 CFR part 241 continues to read as
follows:

    Authority: 39 U.S.C. 401.

    2. Effective October 5, 1998, 39 CFR part 241 is amended by
revising Sec. 241.4, to read as follows:

Sec. 241.4  Expansion, relocation, and construction of post offices.

    (a) Application. (1) This section applies when the USPS
contemplates any one of the following projects with respect to a
customer service facility: expansion, relocation to another existing
building, or new construction, except when the project is to meet an
emergency requirement or for temporary use. Emergency situations
include, but are not limited to, earthquakes, floods, fire, lease
terminations, safety factors, environmental causes, or any other
actions that would force an immediate relocation from an existing
facility. Temporary relocation of space is used for, but not limited
to, holidays, special events, or for overflow business. Use of
emergency and temporary space will be limited to 180 days in duration.
Any

[[Page 46657]]

additional incremental time periods of up to 180 days each must be
approved by the Vice President, Facilities.
    (2) This section does not apply when the project under
consideration is limited to repair and alterations, such as----
    (i) Painting;
    (ii) Repairs;
    (iii) Replacement or upgrade of structural or functional elements
of a postal building or of its equipment;
    (iv) Paving, striping, or other repair of parking areas;
    (v) Landscaping.
    (b) Purpose. The purpose of the procedures required by this section
is to assure increased opportunities for members of the communities who
may be affected by certain USPS facility projects, along with local
officials, to convey their views concerning the contemplated project
and have them considered prior to any final decision to expand,
relocate to another existing building, or construct a new building that
is owned or leased.
    (c) Expansion, relocation, new construction. When a need is
identified that will require the expansion, relocation, or new
construction of a customer service facility, postal representatives
responsible for the project will take the following steps in accordance
with the time schedule shown:
    (1) Personally visit one or more of the highest ranking local
public officials (generally individuals holding elective office).
During the visit, the postal representatives will--
    (i) Identify the need and fully describe the project that is under
consideration to meet it, explain the process by which the Postal
Service will solicit and consider input from the affected community,
and solicit a working partnership with the community officials for the
success of the project.
    (ii) Emphasize that in meeting a need for increased space, the
first priority is to expand the existing facility; the second priority
is to find an existing building in the same area as the current
facility; and the third option is to build on a new site; all within
the downtown area, if possible.
    (iii) Ask that a Postal Service presentation of the project be
placed on the regular agenda of a public meeting or hearing. If no such
meeting is planned within the next 60 days or the agenda of a planned
meeting cannot accommodate the project, the USPS will schedule its own
public hearing concerning the project, and will advertise the meeting
or hearing in a local general circulation newspaper.
    (iv) Give the local officials a letter describing the intended
project.
    (2) Notify the lessor of the affected facility of the project, in
writing.
    (3) Send an initial news release to local communications media.
    (4)(i) Post in the public lobby of the affected post offices a copy
of the letter given to local officials, or the news release, or, space
permitting, both. If such information is available at the time, include
in the posting a public notice of the date, time, and location of a
public meeting or hearing at least 7 days prior to the meeting or
hearing.
    (ii) Except as provided in this paragraph, attend, or conduct, one
or more public hearings to describe the project to the community,
invite questions, solicit written comment, and describe the process by
which community input will be considered. If it is believed at the time
that the existing facility is not able to be expanded or that expansion
is impracticable, disclose that fact and the reasons supporting that
belief. If, during the public meeting or hearing process, a new
development should occur to allow for an expansion of the existing
facility, the Postal Service will make a good faith effort in pursuing
this alternative. Under exceptional circumstances that would prevent
postal representatives from attending a public meeting or conducting a
postal hearing on the planned project within a reasonable time, and
subject to approval of the Vice President, Facilities, the Postal
Service may distribute a notification card to all affected customers,
seeking their comments or other feedback. An example of exceptional
circumstances would be a project in a sparsely populated area remote
from the seat of local government or any forum where a postal conducted
meeting could be held.
    (iii) At any public meeting or hearing, advise local officials and
the community of their appeal rights and the process by which an appeal
can be made. Information provided must include time limitations and an
address for the appeal.
    (5) Review comments and notify local officials of decision. Not
less than 15 days after the date of the most recent public meeting, or
after receipt of notification cards, make a decision that takes into
account community input and is consistent with postal objectives (e.g.,
expansion, relocation to another building, or construction of a new
owned or leased facility), and notify local officials in writing. This
notification must include information on the availability and terms of
review under paragraph (c)(6) of this section. At the same time, post a
copy of the notification letter in the local post office for the
community. Take no action on the decision for at least 30 days
following notification of local officials and the community.
    (6) Within the time period identified in paragraph (c)(5) of this
section, any person may request in writing that the decision be
reviewed by the Vice President, Facilities, at Postal Service
Headquarters. No particular format is required for requesting review,
but the request must be in writing and identify the post office or
location affected; and should identify the decision objected to, and
state the reasons for the objection. The Vice President, Facilities,
will obtain the views of the decision maker, review relevant parts of
the project file, and if necessary request more information from the
appellant. Upon review of the facts, the Vice President, or a
representative, will issue a written determination, if possible, within
15 days. In no event will the Postal Service take action on the
decision being reviewed until 15 days following issuance of the final
review determination. If the determination on review is to set aside
the decision, the project process will return to the public hearing
stage of paragraph (c)(4) of this section.
    (7) Advertise for sites and existing buildings, in accordance with
existing postal procedures.
    (d) Discontinuance of post offices; historic preservation. (1) It
is the policy of the Postal Service, by virtue of Board of Governors
Resolution No. 82-7, to comply with Section 106 of the general
provisions of the National Historic Preservation Act, 16 U.S.C. 470, et
seq., Executive Order 12072, and Executive Order 13006. Therefore, any
facility project that will have an effect on cultural resources will be
undertaken in accordance with that policy.
    (2) Any action involving the closing or other discontinuance of a
post office shall be undertaken only in accordance with 39 U.S.C.
404(b) and 39 CFR 243.1. In the event a facility action is subject to
both this section, and either the NHPA or the post office
discontinuance requirements, all comment periods and other public
participation matters shall be governed by those statutes.
    (e) Site selection.  (1) When the decision is to advertise for
sites and existing buildings, and after such sites have been
identified, advise local officials in writing of all contending sites,
and with respect to all sites not selected, provide an explanation.
This notice will advise local officials, and the community, that no
decision to select a site will be made for a minimum of 30 days, and
that comments or discussions

[[Page 46658]]

of all sites are solicited. Post a copy of this letter in the lobby of
the affected post office for public notice.
    (2) Once a specific site is then selected, notify local officials
in writing of the selection decision.
    (3) Take no final action to acquire or lease the selected site for
30 days following the notification in paragraph (e)(2) of this section.
    (f) Planning, zoning, building codes. In carrying out customer
service facilities projects, it is the policy of the Postal Service to
comply with local planning and zoning requirements and building codes
consistent with prudent business practices and unique postal
requirements. In order to promote a partnership with local officials
and assure conformance with local building codes, plans and drawings
will be sent to the appropriate building department or other officials
for review. Where payment of fees is normally required of private
entities, the Postal Service will pay a reasonable fee for the review.
The Postal Service will give local public officials written notice of
any timely, written objections or recommendations that it does not plan
to adopt or implement.
    (g) Continuing communication. During construction, whether
renovation or new construction, the postmaster should keep local
officials and the community informed via letters and news releases. The
postmaster and other postal officials should plan, conduct and invite
the community and local officials to any ``grand opening'', as
appropriate.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 98-23377 Filed 9-1-98; 8:45 am]
BILLING CODE 7710-12-P