[Federal Register Volume 67, Number 130 (Monday, July 8, 2002)]
[Rules and Regulations]
[Pages 45061-45064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16908]


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POSTAL SERVICE

39 CFR Part 111


Eligibility Standards for Free Matter for the Blind and Other 
Physically Handicapped Persons

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: This final rule adopts a proposal to amend the Domestic Mail 
Manual (DMM) to clarify and simplify the eligibility standards for free 
matter for the blind and other physically handicapped persons in 
conformance, to the extent practicable, with similar standards adopted 
by the Library of Congress (LOC) for its National Library Service for 
the Blind and Physically Handicapped (NLS). In addition, other 
standards applicable to the use of free matter for the blind and other 
physically handicapped persons are clarified.

EFFECTIVE DATE: August 8, 2002.

FOR FURTHER INFORMATION CONTACT: Joel Walker, 703-292-3652.

SUPPLEMENTARY INFORMATION: Congress established the free matter 
privilege in 1904 to provide reading materials for the blind when sent 
by public institutions and public libraries as a loan and when returned 
by the blind readers to those institutions (Ch. 1612, 33 Stat. 313, 
Public Law No. 171). In 1931, the National-Books-for-the-Blind

[[Page 45062]]

program was established under the auspices of the Library of Congress 
to provide books for use by adult residents of the United States, 
``including the several States, Territories, insular possessions, and 
the District of Columbia.'' (Ch. 400, 46 Stat. 1487, Public Law No. 
787). The Library of Congress issued standards for making arrangements 
for circulation of books (using the free matter privilege) to and from 
blind users through libraries designated as local or regional centers.
    In 1966, Congress expanded the National Books-for-the-Blind program 
to include other physically handicapped persons (Public Law 89-522, 2 
U.S.C. 135a and 135b). Congress expanded the program to meet the 
reading needs of physically handicapped persons who cannot read or use 
conventional printed books because of impaired eyesight or other 
factors that make these persons physically unable to manipulate these 
materials. Certification by competent authority of individuals for 
eligibility to participate in the program was (and remains today) 
pursuant to regulations prescribed by the Library of Congress. From 
this time on, the program became known as the National Library Service 
for the Blind and Physically Handicapped (see 36 CFR 701.10).
    Consistent with the intent of Congress embodied in the Act that 
created the Library of Congress National Library Service for the Blind 
and Physically Handicapped, the Postal Reorganization Act (39 U.S.C. 
3403(a)(1)) expanded the free matter privilege to include mail for the 
use of the blind or other persons who cannot use or read conventionally 
printed material because of a physical impairment. The persons must be 
certified by competent authority in accordance with the regulations 
established by the Library of Congress. Under the current law, Congress 
reimburses the Postal Service for free matter mailings (39 U.S.C. 
2401(c)). Accordingly, the Postal Service is clarifying its eligibility 
standards for the free matter privilege to incorporate, as closely as 
practicable, the standards devised by the Library of Congress for 
establishing eligibility and certification for participation in the 
National Library Service for the Blind and Physically Handicapped (see 
36 CFR. 701.10).
    On September 1, 2000, the Postal Service published a proposed rule 
in the Federal Register (65 FR 53212) amending the postal standards for 
free matter for the blind and other physically handicapped persons. 
Based on comments received, the Postal Service published a second, 
revised proposed rule for comment on January 3, 2002 (67 FR 275). The 
revised rule contained two major changes. First, it eliminated the 
requirement that organizations maintain individual records of eligible 
recipients and made the maintenance of such records optional. Second, 
the new proposal required mailers of free matter who entered mailings 
of 200 or more pieces to register with the Post Office(s) of mailing 
and to submit statements of mailing. A form requiring minimal mailing 
information would have been developed for this purpose. In addition, 
the proposal included a provision that the Postal Service may audit an 
organization's use of the free matter privilege. The proposal explained 
that this specification was new to the Domestic Mail Manual but 
codified existing authority and practice.
    The Postal Service received eight comments on the January 3, 2002, 
proposal. The comments generally supported the overall goal to clarify 
standards for eligibility and most expressed support for or did not 
object to the clarifying language for eligibility in 1.3 and certifying 
authority in 1.4. Accordingly, these proposed standards are adopted 
without change. However, one comment requested that a provision be 
added that clarifies that mailings of acceptable matter may be mailed 
by organizations. The Postal Service acknowledges that the comment is 
correct and consistent with the standards for the mailing of free 
matter. However, since 1.1 already addresses these circumstances by 
permitting matter for the use of blind or other physically handicapped 
persons to be mailed free of postage, an additional provision is not 
incorporated in the new standards. One comment supported the proposal 
in its entirety and one objected only to any change that would not 
allow the mailing of cassette talking machines. The proposed rule does 
not contemplate changing the standards for acceptable matter mailed as 
free matter. Therefore, cassette talking machines and other devices for 
use by eligible recipients remain acceptable to be mailed as free 
matter.
    There were several common objections to the proposal. Six comments 
objected to the proposal requiring free matter mailers to submit 
statements of mailings for mailings of 200 pieces or more. Three of the 
six comments expressed concern about the additional administrative 
burden of submitting statements of mailing, and three comments objected 
to the proposal in 1.5 that required an organization to certify on the 
statements of mailing that each recipient is eligible to receive free 
matter. By law, free matter may be sent only to eligible persons. The 
proposed certification standard for organizations using the free matter 
privilege to mail matter to eligible persons did not change mailers' 
obligations. Nevertheless, the Postal Service has removed the standards 
in 1.5, Certification of Eligible Recipients by Organizations, and 5.2, 
Reporting Mailings, from this final rule to accommodate the concerns of 
the comments. The proposed requirement for registration and submission 
of statements of mailing for large volume mailings was intended to 
facilitate a more precise count of free matter volume and appropriation 
to the Postal Service to cover the revenue forgone on this mail. 
However, in view of the comments, the Postal Service finds that this 
need does not outweigh the administrative burden that would be placed 
on mailers. Accordingly, under this final rule, mailers of free matter 
will not at this time be required to submit statements of mailing with 
free matter mailings of more than 200 pieces. Furthermore, the Postal 
Service has eliminated the proposal in 5.1 that would have required a 
mailer to register with the Post Office(s) of mailing prior to 
submitting mailings of over 200 pieces.
    Two comments expressed concerns about the provision in 1.5 that 
discussed potential audits of mailers of free matter by the Postal 
Service. This section attempts to clarify what is already in practice 
today. As stated in the January 3, 2002, proposal, any organization 
that mails under the free matter privilege, whether maintaining 
individual records or not, is subject to Postal Service reviews of the 
eligibility of the addressees.
    Any method of audit is determined on a case-by-case basis. For 
example, an audit may include a review of the individuals on the 
organization's mailing list to ensure they meet the eligibility 
standards for receipt of free matter. The procedures used in these 
reviews may depend on the records maintained by the organization. 
Record keeping by organizations making use of the free matter privilege 
will facilitate any audits that take place. For example, if the 
organization chooses to maintain records substantiating that each 
person on its mailing list is eligible to receive free matter, the 
Postal Service might be able to complete an audit simply by reviewing a 
sample of those records. If the organization does not maintain such 
records, the Postal Service might need to contact an outside source, 
such as the Library of Congress, for addressees registered with that 
organization to determine whether the addressees are eligible to 
receive free matter. If no other source is available to provide that

[[Page 45063]]

confirmation, the Postal Service might, as a last resort, contact the 
individual addressees directly. However, it should be noted that, under 
current policy, all recipients of free matter are required to provide 
such evidence of eligibility to their postmasters. This policy will not 
change under this proposal. Postmasters will still be required to 
maintain a list of eligible recipients under their jurisdiction.
    It should be noted that whether or not an organization maintains 
records to confirm that addressees meet the eligibility standards for 
free matter, the entry of matter at the ``free'' rates is the mailer's 
certification that the matter qualifies for free matter privileges and 
that the recipients are eligible to receive free matter.
    Two organizations expressed concern that the potential for audits 
of mailing lists containing names of those receiving free matter 
creates privacy issues that should be addressed before such audits are 
undertaken. As noted earlier, the authority to audit and practice of 
auditing mailing lists is not new. And, to the knowledge of the Postal 
Service, no breaches of privacy have occurred. Moreover, by statute (39 
U.S.C. 410(c)(1), 412), the Postal Service is required to keep the 
names and addresses of its patrons confidential. As a result, there 
will be no releases of the names and addresses of individual patrons 
based on the collection of the information as part of assuring that 
those using and benefiting from the free matter privilege are qualified 
individuals.
    Two comments had concerns about the Postal Service's definition of 
advertising. The two comments misinterpreted the standard to prohibit 
material such as a ``meeting notice.'' As a general standard for any 
material sent as free matter, the material may not contain any 
advertising. The Postal Service does not consider meeting notices and 
other informational material as advertising unless it falls within the 
Postal Service definition of advertising. Under DMM standards, 
advertising is defined as:
    1. All material of which a valuable consideration is paid, 
accepted, or promised, that calls attention to something to get people 
to buy it, sell it, seek it, or support it.
    2. Reading matter or other material of which an advertising rate is 
charged.
    3. Articles, items, and notices in the form of reading matter 
inserted by custom or understanding that textual matter is to be 
inserted for the advertiser or the advertiser's products in which a 
display advertisement appears.
    4. An organization's advertisement of its own services or issues, 
or any other business of the publisher, whether in display advertising 
or reading matter.

See DMM E211.1. In order to alleviate any confusion, this language has 
been incorporated into the free matter standards.
    The Postal Service also adopts additional standards clarifying what 
may be mailed as free matter. These do not create substantive changes, 
but codify existing policies.
    Three comments expressed concern that the proposed change in 2.1a 
was intended to further limit the standards for acceptable matter 
mailed as free matter. To the contrary, the change simply clarifies 
section (a) to say ``reading matter in braille or 14-point or larger 
sightsaving type'' is eligible to be sent as free matter. There was no 
change in sections (b) through (e) which list other acceptable matter 
that may be mailed as free matter.
    Two comments requested that the Postal Service extend the standards 
for free matter to include handwritten letters that are written or 
printed in 14-point or larger type. This issue was addressed in the 
January 3, 2002, proposed rule. To reiterate the Postal Service's 
position, the history of the free matter privilege does not support 
that the intent was to include handwritten letters. Section 3404 of 
Title 39 specifically requires that letters sent using the privilege 
must be ``in raised characters, or sightsaving type, or in the form of 
sound recordings * * *'' Since the Postal Service does not have the 
authority to consider such a change, this request is outside the scope 
of this final rule.

List of Subjects in 39 CFR Part 111

    Administrative practice and procedure, Postal Service.


    For the reasons discussed above, the Postal Service hereby adopts 
the following amendments to the Domestic Mail Manual, which is 
incorporated by reference in the Code of Federal Regulations (see 39 
CFR part 111).

PART 111--[AMENDED]

    1. The authority citation for 39 CFR part 111 continues to read as 
follows:

    Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 
3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001.


    2. Revise the Domestic Mail Manual as follows:

E  Eligibility

E000  Special Eligibility Standards

* * * * *
    [Revise E040 to insert the word ``physically'' before the word 
``handicapped'' in each instance where it appears.]

E040  Free Matter for the Blind and Other Physically Handicapped 
Persons

* * * * *
1.0  BASIC INFORMATION

1.1  General

    [Revise 1.1 to read as follows:]
    Subject to the standards below, matter may be entered free of 
postage if mailed by or for the use of blind or other persons who 
cannot read or use conventionally printed materials due to a physical 
handicap. The provisions of E040 apply to domestic mail only.
* * * * *
    [Revise title and text of 1.3 to read as follows:]

1.3  Eligibility

    The following persons are considered to be blind or unable to read 
or use conventionally printed material due to a physical handicap for 
purposes of this section:
    a. Certified participants in the Library of Congress National 
Library Service for the Blind and Physically Handicapped (NLS).
    b. Blind persons whose visual acuity, as determined by competent 
authority, is 20/200 or less in the better eye with correcting lenses, 
or whose widest diameter of visual field subtends angular distance no 
greater than 20 degrees.
    c. Other physically handicapped persons certified by competent 
authority as meeting one or more of the following conditions:
    (1) Having a visual disability, with correction and regardless of 
optical measurement, that prevents the reading of standard printed 
material.
    (2) Being unable to read or unable to use standard printed material 
as a result of physical limitations.
    (3) Having a reading disability resulting from organic dysfunction 
and of sufficient severity to prevent their reading printed material in 
a normal manner.
    (4) Meeting the requirements of eligibility resulting from a 
degenerative, variable disease that renders them unable to read or use 
conventional printed material because of impaired eyesight or other 
physical factors. These persons are eligible during the time in which 
they are certified by a competent authority as unable to read or use 
conventional materials.
    d. Eligible participants must be residents of the United States, 
including

[[Page 45064]]

the several states, territories, insular possessions, and the District 
of Columbia, or American citizens domiciled abroad.
    [Revise title and text of 1.4 to read as follows:]

1.4  Certifying Authority

    For purposes of this standard:
    a. The postmaster may extend the free matter privilege to an 
individual recipient based on personal knowledge of the individual's 
eligibility.
    b. In cases of blindness, visual impairment, or physical 
limitations, ``competent authority'' is defined to include doctors of 
medicine; doctors of osteopathy; ophthalmologists; optometrists; 
registered nurses; therapists; and professional staff of hospitals, 
institutions, and public or private welfare agencies (e.g., social 
workers, caseworkers, counselors, rehabilitation teachers, and 
superintendents). In the absence of any of these, certification may be 
made by professional librarians or by any person whose competence under 
specific circumstances is acceptable to the Library of Congress (see 36 
CFR 701.10(b)(2)(i)).
    c. In the case of reading disability from organic dysfunction, 
``competent authority'' is defined as doctors of medicine and doctors 
of osteopathy.
    [Add new 1.5 to read as follows:]

1.5  Qualifying Individuals

    The USPS may require individuals claiming entitlement to the free 
matter privilege to furnish evidence of eligibility consistent with the 
standards in 1.3 and 1.4, or verify by other means that the recipients 
are eligible to receive free matter.
2.0  MATTER SENT TO BLIND OR OTHER PHYSICALLY HANDICAPPED PERSONS

2.1  Acceptable Matter

    Subject to 2.2, this matter may be mailed free:
    [Revise item a by adding ``in braille or 14-point or larger 
sightsaving type'' to read as follows:]
    a. Reading matter in braille or 14-point or larger sightsaving type 
and musical scores.
* * * * *

2.2  Conditions

    The matter listed in 2.1 must meet these conditions:
    [Revise item d by adding the definition of advertising to read as 
follows:]
    d. The matter contains no advertising. Advertising is defined as:
    (1) All material of which a valuable consideration is paid, 
accepted, or promised, that calls attention to something to get people 
to buy it, sell it, seek it, or support it.
    (2) Reading matter or other material of which an advertising rate 
is charged.
    (3) Articles, items, and notices in the form of reading matter 
inserted by custom or understanding that textual matter is to be 
inserted for the advertiser or the advertiser's products in which a 
display advertisement appears.
    (4) An organization's advertisement of its own services or issues, 
or any other business of the publisher, whether in display advertising 
or reading matter.
* * * * *
3.0  MATTER SENT BY BLIND OR OTHER PHYSICALLY HANDICAPPED PERSONS

3.1  Acceptable Letters

    [Revise 3.1 to read as follows:]
    Only letters in braille or in 14-point or larger sightsaving type 
or in the form of sound recordings, and containing no advertising, may 
be mailed free, and only if unsealed and sent by a blind or other 
physically handicapped person as described in 1.3.
* * * * *
    An appropriate amendment to 39 CFR part 111 to reflect these 
changes will be published.

Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 02-16908 Filed 7-5-02; 8:45 am]
BILLING CODE 7710-12-P