The Postal Service has decided to go ahead with the sale of the historic Bronx General Post Office.  Tom Samra, Vice President of Facilities for the USPS, has issued his “Final Decision for Relocation of Retail Services in Bronx, New York.”  (A copy is here.)

The Bronx GPO is on the National Register of Historic Places, it's an official New York City landmark, and it's the largest of 29 Depression-era post offices in the city.  As David Dunlap wrote in the New York Times, the post office has been "a centerpiece of life in the borough for more than 75 years, and a monumental gallery of the work of Ben Shahn, one of America's leading Social Realist artists."  Needless to say, the plan to sell the Bronx GPO has received a lot of attention.

The Postal Service announced its decision to close the Bronx GPO, sell the building, and relocate retail services on March 14, 2013.  As required by federal regulations, a thirty-day period for appeals followed.  The Postal Service received a lot of them.  There were twenty-one letters from individual citizens, plus letters from the Executive Director of the Bronx River Art Center, the President of the East Bronx History Forum, and the National Trust for Historic Preservation. 

The Office of the Bronx Borough President filed an appeal as well.  This one was signed by nine New York City Council members, ten New York State Assembly members, six New York State Senate members, and three members of the U.S. House of Representatives.  An appeal was also submitted by the law firm of Ford & Huff, acting on behalf of Bronx activist Julio Pabon and the National Post Office Collaborate, a Berkeley-based citizens organization fighting to save historic post offices.  (More about that here.)

The appeals were not enough to change Mr. Samra’s mind.  His five-page Final Decision briefly addresses the concerns expressed in these appeals, then concludes: “While the Postal Service is not insensitive to the impact of this decision on its customers and the Bronx community, the relocation of the Bronx GPO is in the best interest of the Postal Service.”

Several of the appeals argue that the Postal Service did not follow the procedural requirements described by the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), and the statutes and regulations governing the closure of post offices.  Mr. Samra says the Postal Service has correctly followed all of the proper procedures so far, and it will continue to do so as the process continues.  But there’s plenty of reason to doubt that.

 

Relocation vs. Discontinuance

Normally when the Postal Service wants to close a post office, it must go through a lengthy discontinuance process, but the Postal Service says that it doesn’t need to do that for the Bronx GPO because it’s not really “closing” the post office.  It will be opening another retail facility somewhere close by, so in fact it’s merely “relocating” the post office.  That's what the Postal Service said when it sold the Venice post office, and that's what it's saying as it moves forward on selling the post offices in Santa Monica, La Jolla, Berkeley, Ukiah, and elsewhere.

That’s not just a word game.  It’s a legal distinction. The requirements for a discontinuance are outlined in 39 U.S.C. 404(b), and they’re described in more detail in 39 CFR 241.3 and the USPS Discontinuance Guide.  The relocation procedures are described in 39 CFR 241.4.  

As a look at these regulations shows, the requirements for a relocation are much less stringent and time consuming than for a discontinuance.  That’s because the impacts on the community are usually less significant when the post office is simply moving.  Of course, when the post office being “relocated” is a historic landmark building that plays a crucial role in the life of the community, things are a lot more complicated, but the Postal Service still maintains that it just needs to go through a simple relocation procedure, not a full discontinuance process.

Mr. Samra’s Final Decision makes a big point out of the fact the Postal Service is following the relocation procedures outlined in CFR 241.4, but that may not be the case.  There's a passage in these regulations that says if the relocation involves a property that is a historic building, the Postal Service should be following the more rigorous requirements of a discontinuance. 

 

Section 241.4(d)

CFR 241.4 is entitled “Expansion, relocation, and construction of post offices.”  Part (d) of this section of the Code of Federal Regulations is called “Discontinuance of post offices; historic preservation.”  It contains two paragraphs.  The first reads as follows:

“(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.”

This paragraph indicates that when a relocation involves a historic property, the Postal Service must follow the NHPA Section 106 procedures.  Mr. Samra says that the Postal Service will follow the Section 106 requirements when it comes time to sell the building.  In the meantime, the Postal Service is just focusing on the decision to relocate retail services.  (We’ll get back to that issue later.)

The second paragraph of part 241.4(d) proceeds to state the following:

“(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.”

This paragraph requires clarification.  The first sentence points to the statute and regulations where the discontinuance procedure is described.  It may be intended to indicate that relocations are a different matter than discontinuances, subject to different regulations, or it may mean that relocations that involve closing a post office should still be treated as discontinuances.  (The reference to CFR 243.1 appears to be a typo for 241.3.)

In any case, the key sentence is the second one in the paragraph.  It says that there may be times when a “facility action” may be subject to both this section (i.e., 241.4 on relocations) and either (1) the NHPA requirements or (2) the discontinuance requirements.

Relocating retail services from a historic post office building is precisely one such facility action.  It involves both a relocation under 241.4 and the NHPA requirements.  

When a facility action meets both of these criteria, “all comment periods and other public participation matters shall be governed by those statutes.”  “Those statutes” refers back to the 39 U.S.C. 404(b) and 39 CFR 241.3, where the discontinuance requirements are spelled out.

In other words, while a normal relocation may be subject to the requirements of CFR 241.4, a relocation that also involves a historic property is another matter.  In these instances, the Postal Service should be following the discontinuance process in 39 USC 404(b) and CFR 241.3, not the relocation process in CFR 241.4.  The Postal Service has thus been following the wrong procedures.

 

The Rule change

CFR 241.4 was added to the Code of Federal Regulations in 1998.  A first version (called the interim rule) was published in the Federal Register in May 1998.  A comment period followed; then the revised version (called the final rule) was published in September.

The interim rule contains the paragraph on historic preservation and NHPA quoted above, but not the second paragraph.  That key passage was added to the final rule.  The  “supplementary information” reviewing the comments received on the interim rule may explain why: Historic preservation groups had expressed concern that the interim rule did not provide enough safeguards for historic buildings. 

The summary of the interim rule explains why these new regulations were being added: “The purpose of the interim rule is to build into the facility project planning process specific opportunities and adequate time for the community to be a partner in the decision-making process and to have its views considered.”

The aim of the new regulations was to provide more opportunity for public input about decisions involving post offices other than closing them.  The aim was not to make it easier to close a post office, which is precisely how CFR 241.4 is now being used by the Postal Service.  The supplementary information on the final rule makes this point very clearly.  It’s worth quoting in full:

“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 project rule.”

This passage indicates that when a post office closes and retail services are moved to another location, the Postal Service is supposed to do a discontinuance procedure to close the post office, and then a relocation procedure about the new office.  The paragraph makes it clear that if there’s an issue about which rules apply, the Postal Service should use the procedure that results in greater public participation — i.e., a discontinuance procedure rather than a relocation process.

Despite this paragraph, the Postal Service and the Postal Regulatory Commission have decided that closing a post office and opening a new one elsewhere is a simple relocation and no discontinuance procedure is necessary.  The PRC has dismissed several cases involving relocations, including appeals on the closure of the post offices in Ukiah, Venice, and Santa Monica post office, and it has revised its regulations on appeals to state that relocations are not subject to appeals.  This interpretation of the law on relocations, by the way, is currently being challenged in DC District court by attorney Elaine Mittleman on behalf of Venice and her own community, Pimmit, Virginia (the brief is here).

That issue aside, the paragraph quoted above indicates that the new regulations on relocations and new construction were not intended to make it easier to close a post office — particularly if it’s a historic post office.

 

Comparing the two procedures

Both the discontinuance procedures and the relocation procedures provide opportunity for public participation, but there are significant differences between the two processes.  A discontinuance is much more complicated, and it can take over seven months; a relocation process can be completed in about two months.  Here are some of the other differences:

Notification and questionnaire: For a discontinuance, the Postal Service must notify employees, customers, and other stakeholders of the proposed closure by posting a notice in the lobby and by sending each customer a notice and questionnaire for feedback.  That includes everyone in the ZIP code — PO box holders and customers receiving carrier delivery out of the post office.  For a relocation, a notice in the lobby and a press release suffice; no questionnaire is required or letter to individual customers is necessary.  As a result, in many relocation cases, many customers didn’t even know a relocation was in the works.  That's exactly what happened in the Bronx, and Bronx Borough President Ruben Diaz Jr. wrote an angry letter to the Postal Service saying he was "appalled" over the notification process and the perfunctory effort to reach out to the community.

Public meeting: For a discontinuance, the Postal Service must hold a meeting with the public, and if the announced meeting time turns out to be inconvenient, the Postal Service is supposed to reschedule.  For a relocation, the Postal Service can hold a meeting or it can simply send a representative to the regular meeting of an elected body, like a city council.  In the past, the Postal Service has slipped in under radar by putting itself on the agenda of such a meeting; elected officials may have thought that this was just the first occasion for public comment, but it was also the last.  Due to the notification process in the Bronx, many people didn't even know about the meeting, and it wasn't very well attended.

Comment periods: For a discontinuance, the public has 60 days to comment before a final determination is announced.  For a relocation, the Postal Service must wait only 15 days after the public meeting before making a decision.  (In the case of the Bronx GPO, the public meeting took place on February 6, the comment period closed on March 5, and a decision was announced on March 14.)

Access to the record: A discontinuance procedure makes the administrative record part of the PRC’s appeals docket, and it’s readily available to the public.  No such access is guaranteed for a relocation, and communities like the City of Berkeley have had to file a FOIA request to get some of the records.  

Appeals: In both procedures, the public has 30 days to file an appeal after a decision has been announced.  An appeal on a final determination about a discontinuance goes to the PRC, which can take up to 120 days (or longer) reviewing the appeal; during much of that time, the appellant and interveners can file comments, briefs, and reply briefs.  The PRC cannot overturn the Postal Service's decision to close the post office, but it can remand the decision back to the Postal Service for further consideration.  A relocation appeal goes to the Vice President of Facilities, who may have already been involved in the decision to relocate to begin with.  He can render a final decision in as little as 15 days after the appeals period ended.  Mr. Samra waited several weeks longer than that, but an appeal to a USPS VP obviously offers much less opportunity for debate and scrutiny than an appeal to the PRC, and that's one of the main reasons the Postal Service prefers to treat cases like the Bronx GPO merely as relocations.

 

Section 106 of the NHPA

In addition to the issue of whether or not the Postal Service has properly followed CFR 241.4 on relocations, there are questions about how the Postal Service is dealing with Section 106 of the NHPA.

In his Final Decision on the Bronx GPO, Mr. Samra states, “The Postal Service voluntarily complies with Section 106 and 111 of the NHPA,” and it “may initiate consultation under Section 106 when, following relocation of retail services from a postal facility, a potential alternative may be the sale of the property out of federal ownership.”  He adds that the Postal Service will, when the time comes, consider alternatives for the property and “enter into a loan agreement that provides protection for the artwork and public access to the artwork.”

It’s not quite clear why Mr. Samra thinks that the Postal Service is not required to follow the NHPA and only does so “voluntarily.”  CFR 241.4 makes it very clear that the Postal Service must follow (not "may") the NHPA requirements if the building is historic.

The real issue, though, is the timing.  When the Postal Service issued its Final Decision on the relocation of the Venice post office, it said that the relocation of retail services did not constitute an "undertaking" under Section 106.  That would only occur when the Postal Service decided to sell the building.  

Mr. Samra says pretty much the same thing in his Final Decision on the Bronx GPO.  His letter acknowledges that the March 14 determination indicated that "plans also include marketing the sale of the property," but he now says that "a final decision on the sale of the property has not yet been made."  

According to the Postal Service, the Section 106 procedural requirements do not go into effect until the Postal Service actually takes steps to sell the building.  Even though it's obvious that selling the Bronx GPO is behind the decision to relocate retail services, the Postal Service says no "final decision" to sell the building has yet been made so the time for a section 106 procedure has not yet arrived.  

The National Trust and others have challenged this reading of Section 106, arguing that the process should begin much earlier.  The Section 106 regulations state the following: “The agency official shall ensure that the section 106 process is initiated early in the undertaking's planning, so that a broad range of alternatives may be considered during the planning process for the undertaking.” 

The 106 process is supposed to begin with consultation with the State Historic Preservation Office (SHPO) and the Advisory Council on Historic Preservation.  Together with the Postal Service and the public, they are supposed to examine the potential for “adverse effects.”  One such effect is “change of the character of the property’s use or of physical features within the property's setting that contribute to its historic significance.”  

The Bronx post office is going to become an office building, apartments, a retail business, whatever.  That’s obviously a “change of the character of the property’s use.”  

The Section 106 process should have begun as soon as the Postal Service began planning to relocate retail services and to sell the building — months ago.

 

In whose interest?

The procedures for discontinuances, relocations, and disposal of historic properties are all designed to ensure that the public and other interested parties have sufficient opportunity to “partner” with the Postal Service on the decision making.  

Mr. Samra says that "the relocation of the Bronx GPO is in the best interest of the Postal Service" and that the objections expressed in the appeals “do not outweigh the financial exigencies facing the Postal Service.”  He says that “the Postal Service must operate as a business to be self-sustaining.”

But the Postal Service is not a “business” in the conventional sense of the word, and it's not supposed to act in its own interest.  It is a government agency, it's owned by the American people, and it's supposed to act in the interest of the communities it serves.  That’s why the Postal Service must follow federal regulations that guarantee opportunity for public input.  That input should have some effect on the decision, but time and again, the Postal Service pretends to be listening, then does what it wanted to do from the outset.

As for "financial exigencies," it's hard to understand why it's necessarily to sell off historic post offices just to bring in a relatively small amount of fast cash when the Postal Service passes up many opportunities to bring in much more significant amounts of revenue.  According to the PRC’s most recent compliance report, the Postal Service lost $1.5 billion last year because it charged some mailers less than it costs to deliver their mail.  The Postal Service offers workshare discounts that often exceed the avoided costs, and it took the PRC to court so that it could offer even larger discounts.  What kind of a business operates like that?

Selling historic landmark post offices does little to help the Postal Service's bottom line, but it is doing immeasurable harm to communities across the country and seriously damaging the reputation of the Postal Service in the eyes of average citizens.  Those buildings were intended to inspire pride and confidence in the federal government.  Handing them over to people looking to exploit a situation for their own profit has the opposite effect.  When the landmark post office becomes a real estate office or a restaurant or a film studio, what does that say about the status of the Postal Service and the federal government?

Despite what the Postal Service may say, selling historic post offices is not about bringing in some extra money, and all the downsizing is not simply about adjusting to lower mail volumes.  For decades now, the Postal Service has been quietly privatizing itself by sending billions of dollars worth of business to presort companies, by offering postal rates that don't cover costs, and by outsourcing work to corporate suppliers.  

Selling off properties like the Bronx GPO is simply another form of privatization.  The Postal Service isn’t struggling to be “self-sustaining.”  It’s working at eliminating itself.

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(Photo credits: Rally in front of the Bronx GPO; mural in the Bronx GPO depicting Walt Whitman)

Related posts on the Bronx GPO:

Postal Service looks to close five large New York City Post Offices

Binding the nation together: Berkeley and the Bronx join forces to save the post office

A Bronx Cheer for the Postal Service: The Fire Sale of Historic Post Offices Continues