[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5428]


[[Page Unknown]]

[Federal Register: March 10, 1994]


=======================================================================
-----------------------------------------------------------------------

POSTAL SERVICE

39 CFR Part 20

 

Amendment of International Mail Manual Subchapter 790

AGENCY: Postal Service.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Postal Service is adopting amendments of International 
Mail Manual Subchapter 790 to clarify when a mailing in a foreign 
country is by or on behalf of a United States resident for purposes of 
collecting United States domestic postage and to authorize the 
collection of United States domestic postage on certain mail posted in 
a foreign country by or on behalf of persons who do not reside in that 
country.

EFFECTIVE DATE: 12:01 a.m., March 10, 1994.

FOR FURTHER INFORMATION CONTACT:
Walter J. Grandjean, (202) 268-5180.

SUPPLEMENTARY INFORMATION: On April 28, 1993, the Postal Service 
published in the Federal Register (58 FR 25959) a proposed rule that 
would amend Subchapter 790 of the International Mail Manual to clarify 
when mail is posted in a foreign country is by or on behalf of a United 
States resident (ABA remail) for purposes of collecting United States 
domestic postage. The proposed rule would also authorize the Postal 
Service to collect United States domestic postage on certain mailings 
posted in countries with which the Postal Service has not negotiated 
cost-based terminal dues arrangements by or on behalf of persons who 
reside in countries with which the Postal Service has negotiated cost-
based terminal dues arrangements (ABC remail). The Post Service 
proposed a broad definition of United States resident that would allow 
it to collect United States domestic postage on mailings posted in 
another country not only by firms or entities organized in the United 
States, but also by firms or entities organized under the laws of other 
countries when there was a substantial connection between such firms or 
entities and individuals or firms in the United States. The Postal 
Service also proposed to define when a mailing was by or on behalf of a 
United States resident as those mailings in which a United States 
resident seeks or expects to receive an economic advantage. The Postal 
Service also proposed a definition of resident of a country with which 
the Postal Service has cost-based terminal dues arrangements and a 
definition of when a mailing was by or on behalf of such a resident. 
Comments were due on or before June 1, 1993, and ten comments were 
received by that date. Of those comments, six opposed and four 
supported the proposed rule. In view of the comments, the Postal 
Service has decided to adopt the proposed rule with amendments to take 
into account some of the criticisms of the proposal.

Legal Authority

    One commenter, an association of companies that compete with the 
Postal Service, asserts that this rulemaking violates the separation of 
powers and due process principles of the Constitution because the rule 
would regulate companies that compete with the Postal Service. The 
Postal Service disagrees. The commenter cited no cases or other 
authority to support its assertion, and the Postal Service is not aware 
of any authority which would support such an assertion. Moreover, the 
rule does not regulate competitors of the Postal Service who do not use 
the Postal Service's services, but only specifies when mailers must pay 
U.S. domestic postage to secure delivery of their mail. Mailers can 
continue to use remailers and can deposit their mail in any country 
they choose. They will be required, however, to pay the full cost of 
the services they obtain from the Postal Service.
    Two commenters, a competitor of the Postal Service and the 
association of competitors, assert that the proposed rule violates the 
Postal Reorganization Act because it would extend the application of 
the Private Express Statutes beyond the United States and to mailable 
matter other than letters. These commenters also assert that the 
proposed rule would either impose the Postal Service's bilateral cost-
based terminal dues arrangements on third countries or boycott mail 
from non-cost-based terminal dues countries unless the mailer agreed to 
pay United States domestic postage. They further assert that the Postal 
Service is not authorized to adopt an interpretation of the Universal 
Postal Convention without the approval of the President. The Postal 
Service disagrees.
    The proposed rule would not extend the territorial reach of the 
Private Express Statutes. The Private Express Statutes, 18 U.S.C. 1694-
99, 39 U.S.C. 601-06, generally prohibit the private carriage of 
letters on post routes without paying postage. There are exceptions to 
this prohibition, and the Postal Service has suspended the prohibition 
in some cases, e.g., for extremely urgent letters and for outbound 
international remail. 39 CFR 320.6, 320.8.
    The proposed rule would not require that anything be sent by mail, 
or that United States postage be paid on non-letter mail sent by a 
private carrier. It simply prescribes when United States postage must 
be paid to the Postal Service when the mailer chooses to use the Postal 
Service to deliver items in the United States. Mailers are free, 
subject to the internal legislation of the countries where they are, to 
use any carrier they want for both letter and non-letter mailable 
matter. The Private Express Statutes would come into play only when a 
mailer chooses to send letters to the United States via a private 
carrier. When those letters arrive in the United States, unless they 
come within an exception or suspension of the Statutes, they must be 
entered into the mails or have United States postage affixed. That is 
entirely different from the requirement in this rule that U.S. domestic 
postage be paid on matter entering the United States through the 
international mail system and which is tendered to the Postal Service 
for delivery by choice.
    The proposed rule would not impose bilateral terminal dues 
arrangements on third countries nor would it constitute a boycott of 
mail from countries with which the Postal Service does not have cost-
based terminal dues arrangements. The rule does not alter the terms 
under which the Postal Service exchanges mail with any other country. 
Countries that are part of the UPU terminal dues system will continue 
to pay UPU terminal dues. Mail from those countries will continue to be 
accepted and processed, except for mail posted by or on behalf of 
mailers who reside in the United States or one of the countries with 
which the Postal Service has cost-based terminal dues arrangements. 
That mail will be held for postage or returned as authorized by Article 
25 of the Universal Postal Convention (Washington 1989).
    The Postal Service is not required to obtain the approval of the 
President to adopt this rule. Section 407 of title 39, United States 
Code, provides in pertinent part, ``The decisions of the Postal Service 
construing or interpreting the provisions of any treaty or convention 
which has been or may be negotiated and concluded shall, if approved by 
the President, be conclusive on all officers of the Government of the 
United States.'' This provision does not limit the authority to adopt 
regulations, 39 U.S.C. 401(2), but establishes the conditions under 
which any interpretation of a postal convention will be binding on all 
officers of the Government. Indeed, the absence of Presidential 
approval does not make the Postal Service's interpretation invalid, it 
merely leaves open the possibility that there might be a disagreement 
with some other interested agency. Presidential approval simply 
provides a mechanism for resolving disagreements in favor of the Postal 
Service.
    One commenter asserted that the proposed rule would impermissibly 
extend the territorial jurisdiction of the Postal Service and could 
cause conflicts between it and the internal legislation of other 
countries in which mailers are present. The Postal Service disagrees. 
The basis of the proposed rule is Article 25 of the Universal Postal 
Convention. That article authorizes postal administrations to collect 
domestic postage on certain international mail and the decline to 
deliver certain international mail. Thus, the proposed rule is not 
based on domestic law alone, but is based on an international agreement 
to which virtually all countries adhere. That is far different from the 
case of purporting to apply domestic legislation to conduct outside the 
United States. That the Postal Service has decided to apply Article 25 
selectively to avoid interference with mailers' decisions which do not 
adversely affect it does not change the application of Article 25 into 
an extraterritorial extension of United States jurisdiction.
    One commenter asserts that the proposed rule exceeds the authority 
given by Article 25 because the proposed rule would allow the Postal 
Service to collect domestic postage on remail posted in a country other 
than the country where the mailer resides, and Article 25 provides only 
that postal administrations ``shall not be bound to accept, forward, or 
deliver'' such mail and ``may send back such items to origin or return 
them to the senders without repaying the prepaid charge.'' This comment 
is accurate insofar as there is no express authorization to collect 
domestic postage on ABC remail as there is for ABA remail. However, the 
Postal Service does not believe that the absence of an express 
authorization precludes it from providing mailers an alternative that 
can be much less onerous than returning the mail to origin. The purpose 
of Article 25 and IMM 790 is not to punish remail per se, or for that 
matter, disrupt commercial activities via the mails. As viewed by the 
Postal Service, Article 25 is intended to ensure that postal 
administrations receive appropriate compensation for the services they 
render. Returning mail to origin can take time, and the mail being 
returned may be time sensitive. The mailer may also have invested more 
in a mailing than the postage that has been or will have to be paid. In 
these cases, the option of securing delivery by paying United States 
domestic postage can be much more desirable than incurring the expense 
of waiting for the mail to come back, preparing the mail for posting in 
a third country, and paying new postage to a third postal 
administration. Moreover, since United States domestic postage rates 
are among the lowest in the world, there is some likelihood that the 
mail would simply come back to the United States prepared as United 
States mail. This being the case, there appears to be no good reason to 
require mailers to incur the additional expense of re-preparing the 
mail, shipping it to the United States or some other country, and then 
paying new postage.
    One commenter asserts that the proposed rule would be a repudiation 
of the Universal Postal Convention's basic terminal dues arrangements. 
The Postal Service disagrees. The Convention contains both terminal 
dues provisions and Article 25 which authorizes administrations not to 
accept or deliver ABA or ABC remail. As both those provisions are in 
the Convention, they must be understood as being consistent with one 
another. In this respect, the existence of Article 25 is a recognition 
that terminal dues arrangements that are appropriate, and even 
essential, for the efficient exchange of mails between many countries 
can be unfairly exploited for individual gain. Enforcement of Article 
25 is not a repudiation of the terminal dues system, it is a 
recognition of a vulnerability that permits administrations to protect 
themselves and their customers from unfair exploitation.
    One commenter asserts that the Postal Service is not exempt from 
the Administrative Procedures Act (APA) and that the Supreme Court has 
rejected the Postal Service's claim to be exempt from the APA. The 
Postal Service disagrees. Section 410 of title 39, United States Code, 
provides expressly that ``Except as provided by subsection (b) of this 
section, and except as otherwise provided in this title * * * no 
Federal law dealing with public or Federal contracts, property, works, 
officers, employees, budgets, or funds, including the provisions of 
chapters 5 and 7 of title 5, shall apply to the exercise of the powers 
of the Postal Service.'' 39 U.S.C. 410(a). This language plainly 
exempts the Postal Service from the APA, which is in chapters 5 and 7 
of title 5. In subsection (b) of section 410, only sections 552 (public 
information), 552a (records about individuals), 552b (open meetings) of 
title 5 are made applicable. Elsewhere in title 39, only section 3001 
makes the APA applicable to the Postal Service and then only for 
mailability proceedings. Thus, nothing in the statute makes the APA 
applicable to this rulemaking. As for the Supreme Court, in the case 
mentioned by the commenter, Air Courier Conference of America v. 
American Postal Workers Union, the Court did not rule on the merits of 
whether the Postal Service was subject to the APA, but refused to 
consider an argument based on exemption from the APA because that 
argument had not been presented to the court below. Not considering an 
argument is far different from considering an argument and rejecting 
it.

Definition of United States Resident and of Other Country Resident

    Several commenters assert that the proposed rule, insofar as it 
attempts to elaborate criteria for determining whether a firm or 
business is resident in the United States in terms of the percentage of 
ownership of that firm or business by persons who reside in the United 
States or by other firms or organizations incorporated or organized in 
the United States, is unreasonable and that it is too broad and could 
result in legitimate international mailings having to pay twice or 
having to pay a different compensation rate than the one they are 
entitled to under the Universal Postal (UPU) Convention. They further 
assert that it is ambiguous, that it would require a knowledge of 
corporate information which would be too burdensome for a foreign 
private carrier or postal administration to ascertain, that it would 
have adverse consequences operationally and for customers, that efforts 
to apply the rule will lead to arbitrary actions and disputes, and that 
it would erect a trade barrier. Similar objections are raised regarding 
the application of such percentage of ownership criteria to determine 
the resident status of a sender in another country. In response to 
these views, the Postal Service is eliminating the percentage of 
ownership criteria from its proposed rulemaking.

Trade Policy

    Two commenters have asserted that the proposed rule is contrary to 
U.S. trade interests and anti-competitive and that the European 
Commission has recently started proceedings against enforcement of 
Article 25. One of the commenters has asserted that Article 25 itself 
is an anti-competitive, market-allocation scheme. The Postal Service 
does not agree with these assertions. These commenters have also 
asserted that President Reagan had instructed the Postal Service not to 
apply UPU Convention Article 25(4) in an anti-competitive manner. The 
Postal Service does not consider the proposed rule to be inconsistent 
with the position President Reagan communicated to the Postal Service 
or to be anti-competitive. First, the Postal Service sees no 
inconsistency between U.S. trade interests and its own efforts to 
assure that it is fairly and adequately compensated for the costs of 
handling mail from other countries. It would not agree with the 
implication that remail companies, which target a specific, high-
density type of mailing for their services, are entitled to subsidized, 
below-cost delivery of their mailings by postal administrations or that 
efforts to assure adequate compensation for the cost of delivery of 
such mailings are anti-competitive. To the extent that remail companies 
depend upon such below-cost delivery for the services they offer, they 
are engaged in an abuse of the international mail system and of U.S. 
mailers whose payments in effect subsidize such services. Article 25 
permits postal administrations to take action which, rather than being 
anti-competitive, serves to protect themselves against such abuse. To 
the extent that private carriers provide end-to-end delivery services, 
Article 25 simply does not apply to their activities. Furthermore, the 
contention that the European Commission is proceeding against 
enforcement of Article 25 is ambiguous. The manner in which actions 
were taken by some European administrations in the past has been 
challenged by the European Commission. However, there are postal 
administrations in Europe, such as the German postal administration, 
which are now aggressively applying Article 25 and these actions are 
not being challenged by the European Commission.

Improvements in the Terminal Dues System

    Three commenters assert that the Postal Service should deal with 
the problem of uneconomic remail by correcting the flaws of the UPU 
terminal dues system instead of taking administrative action. The 
Postal Service agrees that the best way of dealing with uneconomic 
remail would be to correct the flaws of the terminal dues system, but 
it has concerns about whether the 186 member countries of the Universal 
Postal Union, many of which have a vested interest in the current 
structure, can agree on a system that will adequately solve the 
problem.
    The Postal Service is, nevertheless, working to establish a fully 
cost-based terminal dues system, that is, a system to cover the 
specific costs of each delivering postal administration which agrees to 
participate in the new system, thus providing fair and equal 
reimbursement for delivery services regardless of where mail is entered 
in the new system by participating administrations. Fewer than thirty 
industrialized countries, however, have an interest in developing such 
a system. Although these countries have made progress in achieving 
consensus on the requirements for and operation of such a system, the 
problem of ``unequal access'' is likely to be exacerbated. The majority 
of countries which will continue to apply a simplified, lower-rate UPU 
system in all their mail exchanges will have more favorable access to 
the industrialized countries participating in the cost-based system 
than the industrialized countries will have with each other.
    To permit a new country-specific cost-based system to operate 
equitably and without the unfair arbitrage experienced between the 
current cost-related system and the UPU terminal dues system would 
require a majority of the member countries of the Universal Postal 
Union to agree either to a global country-specific cost-based terminal 
dues system or to an interface or ``bridge'' arrangement between the 
simpler UPU terminal dues system and the country-specific cost-based 
system. In considering the difficulties of persuading the UPU of the 
market-influenced reasons for cost-based terminal dues, it should be 
noted that a majority of UPU member countries, many of which are 
developing countries, would lose significant terminal dues revenues 
under a country-specific cost-based system which would require payment 
of higher prices for delivery services to the industrialized countries 
and lower prices for the same services to approximately 160 other 
countries.
    Despite the obstacles, the Postal Service is working toward the 
adoption at UPU Congress of proposals which, if approved, will 
significantly reduce the flaws in the current terminal dues system. 
Although the Postal Service is optimistic about the adoption of some of 
these proposals, it has only one of approximately 186 votes at UPU 
Congress and cannot guarantee the outcome.
    Furthermore, the Postal Service is obligated to comply with the 
terms of the Acts of the Universal Postal Union currently in effect. 
Outside of the framework of these Acts, the Postal Service can 
negotiate other terminal dues arrangements only with the agreement of 
another country or group of countries; it cannot impose a particular 
cost-based terminal dues arrangement on other countries nor can it 
unilaterally impose a particular level of terminal dues on inbound 
international mail.
    The UPU meets in Congress every five years, and the next 
opportunity to achieve the agreement necessary to implement an 
equitable and fully cost-based terminal dues system among the 
industrialized countries will arise at the Seoul Congress in late 1994. 
The Acts of the Universal Postal Union adopted at that Congress will 
take effect in 1996.
    In the meantime, therefore, the application of the proposed rule is 
the only means of providing protection against the abuse of the current 
terminal dues system.

Administration of Proposed Rule

    One commenter asserted that enforcement of the rule is bound to be 
arbitrary and capricious, that it cannot be strictly enforced without 
incurring excessive costs, and that, if selectively enforced, it would 
be enforced only against competitors of the Postal Service. The Postal 
Service disagrees with this assertion. The elimination of the criteria 
for determining resident status which relates to percentage of 
ownership will simplify enforcement activity. Although excessive costs 
might be incurred if one-hundred percent effectiveness were required, 
enforcement can still be undertaken in a sufficiently vigorous and 
cost-effective manner to maintain a credible deterrent to abuse of the 
system. Furthermore, the effort to distinguish so-called competitors 
from non-competitors engaged in efforts to evade fair payment of 
delivery costs would, even if it were possible, certainly lead to 
excessive administrative costs and be self-defeating. As the purpose of 
the rule is solely to assure fair and adequate reimbursement of 
delivery costs, there is no incentive to make such an effort.
    One commenter asserts that there has been no independent 
verification that UPU terminal dues do not adequately compensate the 
Postal Service for its expense in delivering foreign-origin mail and 
that participation in a study of international costs and revenues by 
the Postal Rate Commission should be a prerequisite to implementing the 
proposed rule. The Postal Service disagrees. The Postal Service alone 
is responsible international mail services, and there is no legal 
requirement that its determinations be subject to verification by any 
other agency. The Postal Rate Commission, in particular, has no 
jurisdiction over international rates or services, so any study 
conducted by the Commission would have no legal significance. The 
Postal Service has concluded that the proposed rule, as amended, would 
benefit users of United States mail. No persuasive reason has been put 
forward why implementation of that rule should be deferred while an 
agency with no responsibility for international services conducts a 
cost study that would have no legal significance. Accordingly, the 
Postal Service will not defer implementation of the proposed rule.
    One commenter asserts that the Postal Service has offered no data 
on the losses against which the proposed rule would provide protection 
and no support of the need for such a rulemaking. The assertion that 
the Postal Service has not attempted to precisely quantify all losses 
is correct as far as it goes. However, based upon mailings already 
found to be in violation of Subchapter 790 and upon the continuing 
nature of these activities, the Postal Service considers that it has an 
adequate basis for its estimate that it has already suffered 
significant losses and for its judgment that it will continue to incur 
such losses unless more effective remedial action is taken. Therefore, 
by giving the sender the option of either paying domestic postage to 
secure delivery or accepting their return to origin, such losses can be 
avoided or significantly reduced.
    One commenter asserted that, under the proposed rule, the Postal 
Service could decide at its own discretion whether mail was of 
legitimate international origin or whether it should have been entered 
as domestic mail and that it could make such decisions without prior 
consultation with regulators, other postal administrations, or other 
administrative bodies. The Postal Service agrees that it will exercise 
its own discretion in implementing the proposed rule, but disagrees 
with any implication that this will be done in an arbitrary manner and 
without opportunity for consultation. The Postal Service considers the 
exercise of this responsibility to be fully consistent with its 
statutory authority and responsibility to assure that it is 
appropriately and adequately compensated for the costs of the services 
it provides. The purpose of the proposed rule is to provide senders and 
foreign postal administrations with information about Postal Service 
enforcement activities which will help assure that mailings comply with 
Postal Service regulations and are not subject to such decisions. It is 
the responsibility of the sender to be informed about these regulations 
and to comply with them. The elimination of the percentage of ownership 
criteria should simplify compliance with these Postal Service 
regulations. If the sender or a foreign postal administration remains 
uncertain about whether a mailing complies with Postal Service 
regulations, then it is the responsibility of the sender or the foreign 
postal administration to consult with the Postal Service in advance of 
the mailing. In any event, when the Postal Service determines that it 
is appropriate to apply the proposed rule, it will attempt to consult 
with the sender and to give the sender an opportunity to pay the 
required domestic postage or to explain why the mailing should be 
delivered without such payment. The sending administration will then 
also have an opportunity to comment on the enforcement of the rule by 
the Postal Service.
    One commenter asserts that the proposed rule is inconsistent with 
the policy of allowing outbound remail from the United States, that it 
would deny to foreign firms the opportunities for remail to the United 
States that the Postal Service allows to firms in the United States, 
that it does not take into account remailing opportunities to the 
United States ``between countries not listed in Exhibit 792.1,'' that, 
if adopted by other countries, the rule would eliminate the possibility 
of sending ``prepaid mailshots'' from the country of choice of the 
sender, and that the proposed ruling would disturb the climate for 
establishing cost-based terminal dues. The Postal Service disagrees 
with these assertions, at least to the extent that they refer to 
mailings for which the country of destination will be adequately 
compensated for its delivery costs. It is true that the suspension of 
the Private Express Statutes for outbound international mail will 
permit private delivery services, including remail companies, to carry 
mail to other countries without Postal Service constraint. In such 
circumstances, however, the Postal Service itself incurs no costs and 
suffers no cost disadvantage. The purpose of the proposed rule is to 
provide protection only in those circumstances where the Postal Service 
does incur costs and would suffer a cost disadvantage. Furthermore, the 
fact that Postal Service has suspended its own Private Express Statutes 
with respect to outbound international mail does not mean that private 
delivery services or remail companies are not subject to the 
corresponding statutes of other countries or to the actions which other 
postal administrations may take to enforce Article 25 or to assure 
adequate compensation for the delivery of mail from senders in the 
United States sent indirectly by way of third countries providing 
access to the international mail system at below-cost postage rates. 
With respect to remail opportunities to the United States ``between 
countries not listed in Exhibit 792.1,'' as long as the sender is a 
resident of such a country, the Postal Service suffers no cost 
disadvantage for such mailings. With respect to the threat to ``prepaid 
mailshots'' from the country of choice of the sender, there is no 
threat to ``prepaid mailshots'' as long as there has been no evasion of 
the payment to the delivering country of appropriate postage rates or 
terminal dues. With respect to the assertion that the proposed rule 
would disturb the climate for establishing cost-based terminal dues, 
the Postal Service is of the view that such a rule vigorously enforced 
will strengthen the incentive to adopt a cost-based terminal dues 
system in order to reduce the need for such enforcement activity.
    One commenter suggested what he considered to be clarifying changes 
to sections 792.31 and 792.32 of the proposed rule, which explain that 
a mailing is ``by or on behalf of a person or firm who resides in the 
United States'' or ``by or on behalf of a person or firm who resides in 
a country listed in Exhibit 792.1'' where ``such a person or firm seeks 
or expects to derive economic benefit or advantage from that mailing'' 
in relation to activities or to ``operations physically conducted'' in 
the United States or in one of the countries listed in Exhibit 792.1. 
The commenter suggested the addition of ``with respect to the cost of 
postage'' after ``if such a person seeks or expects to derive economic 
benefit or advantage from that mailing'' to clarify that the economic 
benefit is with respect to the cost of the postage for the mailing and 
not because of the content of the mailing. The Postal Service has not 
adopted this suggestion because the ``economic benefit or advantage'' 
noted in Sec. 792.31 and 792.32 refers to the gains which are the 
result of the addressees response to the mailings expected by the 
person or firm engaged in the mailing and not gain which result from 
avoiding the cost of postage.
    The Postal Service adopts the following amendments to the 
International Mail Manual, which is incorporated by reference in the 
Code of Federal Regulations. See 39 CFR 20.1.

List of Subjects in 39 CFR Part 20

    Foreign relations, international postal services.

PART 20--[AMENDED]

    1. The authority citation for 39 CFR part 20 continues to read as 
follows:

    Authority: 5 U.S.C. 552(a); 39 U.S.C. 401, 404, 407, 408.

    2. Chapter 7 of the International Mail Manual is amended by 
revising section 790 to read as follows:

CHAPTER 7--TREATMENT OF INBOUND MAIL

* * * * *


790    Items Mailed Abroad by or on Behalf of Senders in the U.S. and 
Certain Other Countries.


791  Postage Payment Required.

    Payment of United States postage is required to secure delivery of 
mail described in 792 under the following circumstances:
    a. The mailing is by or on behalf of a person or firm that resides 
in the United States and the foreign rate of postage applied to such 
items is lower than the comparable United States domestic rate of 
postage, or 1000 or more such items are mailed in a 30 day period 
regardless of whether the foreign postage is lower than the comparable 
United States postage; or
    b. The mailing is by or on behalf of a person or firm that resides 
in a country listed in Exhibit 792.1, is posted in a country not listed 
in Exhibit 792.1, and 1000 or more items are mailed in a 30 day period.


792  Mailings Affected.

    792.1  Special Conditions. The special conditions apply to items of 
mail which are posted in foreign countries:
    a. By or on behalf of persons or firms who reside in the United 
States; or
    b. By or on behalf of persons or firms who reside in one of the 
countries listed in Exhibit 792.1.

792.2  Residency

    792.21  Criteria for U.S. Residency. A firm is a resident of the 
United States if it meets the following criteria:
    a. It has a place of business in the United States; or
    b. It is incorporated or otherwise in the United States, its 
territories, or possessions.
    792.22  Criteria for Countries Listed in Exhibit 792.1 A firm is a 
resident of a country listed in Exhibit 792.1 if it meets the following 
criteria:
    a. It has its principal place of business in that country; or
    b. It is incorporated or otherwise in that country, its territories 
or possessions.

792.3  By or on Behalf

    792.31  United States Resident. A mailing is by or on behalf of a 
person or firm who resides in the United States if such a person or 
firm seeks or expects to derive economic benefit or advantage from that 
mailing.
    792.32  Resident of a County Listed in Exhibit 972.1. A mailing is 
by or on behalf of a person or firm who resides in a country listed in 
Exhibit 792.1 if such a person or firm seeks or expects to derive 
economic benefit or advantage from that mailing related to operations 
physically conducted in any of those countries. These operations 
include, but are not limited to, selling goods manufactured in those 
countries and selling services provided in those countries.
    792.4  Place of Business. A place of business in the United States 
is any location in the United States, its territories, or possessions 
where a firm's employees or agents regulatory have personal contact 
with other individuals for the purpose of conducting the firm's 
business. For the purposes of this section, a firm whose employees or 
agents have personal contact with others for the purpose of conducting 
the firm's business in different places in the United States for short 
periods of time, e.g., at hotels in different cities for one or two 
days at a time, has a place of business in the United States if the 
aggregate amount of time spent in the United States is 180 days or more 
during a one year period.
    792.5  Agents. The use of a non-exclusive agent in the United 
States for the sole purposes of accepting orders and remissions for 
transmission to a firm in another country or of distributing 
merchandise manufactured in another country and shipped to the United 
States in bulk does not by itself constitute establishment of a place 
in the United States.


793  Advance Payment Required.

    793.1  Sample of Envelope. Senders affected by 791 must submit a 
sample of the proposed mailing (envelope and contents) with (1) a 
statement as to the number of items to be mailed, (2) when and where 
the mailing will take place, and (3) a check, made payable to the U.S. 
Postal Service, to cover the amount of the applicable U.S. postage, to 
the:

Manager, Business Mail Acceptance, Customer Service and Sales, U.S. 
Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-6808.

    793.2  Headquarters Notification. Notification of postage 
acceptance and approval of the mailing will be given by Headquarters to 
the sender and to the appropriate U.S. receiving exchange office. This 
will permit the items in the mailing to go forward to the addresses 
without delay when the items reach the United States.


794  Treatment if Advance Payment Not Made.

    794.1  Return or Disposal of Items. Items may be returned to origin 
or disposed of in accordance with postal regulations if U.S. postage is 
not paid.
    794.2  Mailings Received Without Advance Payment. A mailing subject 
to 791 received without advance payment of U.S. domestic postage will 
be held at the receiving exchange office. The exchange office will 
report all such mailings to the:

Manager, Business Mail Acceptance, Customer Service and Sales, U.S. 
Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-6808.

    Reports must contain (1) title and/or nature of the items, (2) 
identity of sender, (3) number of items detained, (4) weight of a 
single item, (5) foreign postage paid per item, and (6) office of 
mailing. The exchange office will be advised to release the mail when 
the applicable postage has been paid.


795  Report of Mailings.

    Any mail appearing to be subject to the conditions of this 
subchapter must be reported to Business Mail Acceptance, at USPS 
Headquarters, by the U.S. receiving exchange office.

Exhibit 792.1

Canada
Denmark
Finland
France
Germany
Great Britain and Northern Ireland
Iceland
Ireland
Italy
Luxembourg
Netherlands
Norway
Spain
Sweden
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 94-5428 Filed 3-9-94; 8:45 am]
BILLING CODE 7710-12-M