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Rule

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

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Information about this document as published in the Federal Register.

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AGENCY:

Postal Service.

ACTION:

Final rule.

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.

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FOR FURTHER INFORMATION CONTACT:

Joel Walker, 703-292-3652.

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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 Start Printed Page 45062program 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 Start Printed Page 45063confirmation, 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.

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List of Subjects in 39 CFR Part 111

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For the reasons discussed above, the Postal Service hereby adopts the following amendments to the

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PART 111—[AMENDED]

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1. The authority citation for

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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.

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2. Revise the Domestic Mail Manual as follows:

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E Eligibility

E000 Special Eligibility Standards

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[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

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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 Start Printed Page 45064the 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.

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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.

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An appropriate amendment to

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Stanley F. Mires,

Chief Counsel, Legislative.

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[FR Doc. 02-16908 Filed 7-5-02; 8:45 am]

BILLING CODE 7710-12-P