02-78. Eligibility Standards for Free Matter for the Blind and Other Physically Handicapped Persons

AGENCY:

Postal Service.

ACTION:

Proposed rule.

SUMMARY:

The Postal Service proposes 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 for its National Library Service for the Blind and Physically Handicapped. This proposed rule also would require free matter mailers that submit mailings of at least 200 pieces to register with the post office(s) of mailing and submit statements of mailing that document information relating to each such mailing.

DATES:

Comments on the proposed standards must be received on or before February 4, 2002.

ADDRESSES:

Written comments should be delivered to the Manager, Mail Preparation and Standards, United States Postal Service, 1735 N. Lynn St., Room 3025, Arlington, VA 22209-6038. Comments transmitted via facsimile or by e-mail cannot be accepted. Copies of all written comments will be available for inspection and photocopying at USPS Headquarters Library, 475 L'Enfant Plaza SW., 11th Floor N, Washington, DC 20260-1450 between 9 a.m. and 4 p.m., Monday through Friday.

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, Pub. L. No. 171). In 1931, the national books-for-the-blind 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, Pub. L. 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 books-for-the-blind program to include other physically handicapped persons (Pub. L. 89-522, 2 U.S.C. secs. 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 them 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 also 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). In addition, the Postal Service is proposing a process to identify the quantity of mailings being made and to verify that those using the free matter privilege are using it for mailings that qualify for the privilege.

On September 1, 2000, the Postal Service published a proposed rule amending the standards for free matter for the blind and other physically handicapped persons (65 FR 53212). In view of changes from the original proposal and because we believe that the public interest will be served by the fullest practicable exposition of views on these issues, the Postal Service is publishing this revised proposal for comment. There are two major changes from the first proposed rule. First, based on comments received from the original proposal, this new proposal eliminates the requirement that organizations maintain individual records of eligible recipients and makes the maintenance of such records optional. Second, this new proposal requires mailers of free matter that enter mailings of 200 or more pieces to register with the post office(s) of mailing and to submit statements of mailing. Mailers are required to register once at each facility where they deposit bulk mailings. Mailers must submit statements of mailing with each free matter mailing of 200 pieces or more. The Postal Service will provide a form that will require minimal mailing information for this purpose. In addition, this proposal includes a provision that the Postal Service may audit an organization's use of the free matter privilege. This standard is new to the Domestic Mail Manual, but codifies existing authority and practice.

The Postal Service received six comments on the original proposed rule. All of them supported the overall goal to clarify standards for eligibility and certification for recipients of free matter. Two commenters supported the rulemaking without reservation or revision. Of the remaining four, each commenter had reservations and recommendations for revisions to proposed DMM E040.1.5, Certification by Organizations. Two organizations objected to the record-keeping requirement described in E040.1.5, asserting that this requirement places an undue burden on the resources of organizations that mail free matter. This objection has been addressed in this new proposed rule by making the standard for maintaining records optional and not requiring organizations to maintain individual records of eligible recipients. Under these standards, any organization that mails under the free matter privilege, whether maintaining individual records or not, is subject to postal reviews of the eligibility of the addressees. This 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 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 is not routinely required of all addressees in the new process established under this proposal. It should be noted that, whether or not they maintain 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.

Two commenters requested amendments to DMM E040.1.5 to allow permanent eligibility for persons who are “intermittently” eligible; one commenter requested an amendment to indicate an organization may certify eligible individuals provided the organization had a “good faith” belief of the individual's eligibility; and one commenter requested the “competent authority” requirement as defined in E040.1.4 be replaced with a “self-declaration” requirement. These requests cannot be accommodated. Eligibility for free matter is established by statute and the postage for this mail is provided to the Postal Service through appropriations. As explained above, this privilege is related to programs provided by the Library of Congress. Accordingly, to ensure consistency and adherence to congressional intent in the administration of the program, the proposed standards for free matter conform as near as practical with the standards of the Library of Congress. Consistent with those standards, this rule proposes that an eligible individual must meet the standards in E040.1.3 at the time of mailing and the proposed rule continues to establish eligibility by a competent authority as defined in E040.1.4. Persons certified by competent authority as 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 are eligible for the period specified by the certifying authority.

One commenter requested an amendment to DMM E040.3.0 to provide for letters sent by eligible individuals to include handwritten letters in equivalent size of 14-point sightsaving type. 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 * * *” Therefore, this request is not accommodated in this proposed rule.

Lastly, one commenter objected to the use of the term “handicapped” in the proposed standards, suggesting the term be replaced throughout with “persons with disabilities.” Although the Postal Service is sympathetic to the request, the proposed standards continue the use of the term “handicapped” to remain consistent with the language in the statute and that used by the Library of Congress.

Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553 (b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites comments on the following proposed revisions to the Domestic Mail Manual, incorporated by reference in the Code of Federal Regulations. (see 39 CFR part 111).

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

List of Subjects in 39 CFR Part 111

• Administrative practice and procedure
• Postal Service

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

* * * * *

[Amend 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

[Amend 1.1 to read as follows:]

1.1 General

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.

* * * * *

[Amend titles and text of 1.3 and 1.4 and add new 1.5 and 1.6 to read as follows:]

1.3 Eligibility

The following persons are eligible to send and receive free matter:

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 as follows:

(1) Persons certified by competent authority as someone whose visual disability, with correction and regardless of optical measurement, prevents the reading of standard printed material.

(2) Persons certified by competent authority as unable to read or unable to use standard printed material as a result of physical limitations.

(3) Persons certified by competent authority as having a reading disability resulting from organic dysfunction and of sufficient severity to prevent their reading printed material in a normal manner.

(4) Persons certified by competent authority as 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 are eligible during the time in which the person is certified by a competent authority as unable to read or use conventional materials.

d. Eligible participants must be residents of the United States, including the several states, territories, insular possessions, and the District of Columbia, or American citizens domiciled abroad.

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.

1.5 Certification of Eligible Recipients by Organizations

An organization using the free matter privilege (for mailings of at least 200 pieces) to mail matter to persons who claim eligibility under 1.3 is required to certify on statements of mailing that each recipient is eligible to receive free matter. An organization is subject to Postal Service audits of addressees receiving free matter to substantiate recipients' eligibility consistent with the standards of eligibility articulated by the Library of Congress on its applications for free library service and as specified in these standards.

1.6 Qualifying Individuals

The Postal Service 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:

[Amend 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:

* * * * *

[Amend item d by adding “as defined in E211” to read as follows:]

d. The matter contains no advertising as defined in E211.

* * * * *

3.0 Matter Sent by Blind or Other Physically Handicapped Persons

[Amend 3.1 to read as follows:]

3.1 Acceptable Letters

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.

* * * * *

[Add new section 5.0 to read as follows:]

5.0 Documentation

5.1 Register to Mail

Before submitting free matter mailings of 200 pieces or more, mailers must register with the post office(s) where the mailings will be presented.

5.2 Reporting Mailings

Each mailing of 200 pieces or more of free matter must be presented with a statement of mailing, Statement of Mailing, Free Matter for the Blind and Other Physically Handicapped Persons. [Note: This statement of mailing is currently being developed.] The statement of mailing must be completed in ink, by typewriter, or by computer printer (in duplicate if the mailer wants a receipted copy) and signed by the mailer. The mailer may submit a computer-generated facsimile of the USPS form.

* * * * *

An appropriate amendment to 39 CFR. part 111 will be published if this proposal is adopted.

Stanley F. Mires,

Chief Counsel, Legislative.