[Federal Register Volume 63, Number 44 (Friday, March 6, 1998)]
[Proposed Rules]
[Pages 11199-11200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5772]
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POSTAL SERVICE
39 CFR Part 111
Eligibility Requirements for Certain Nonprofit Standard Mail Rate
Matter
AGENCY: Postal Service.
ACTION: Proposed rule.
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SUMMARY: This proposed rule will amend the standards for mail matter
eligible to be sent at the Nonprofit Standard Mail rates. Specifically,
mail matter that seeks or solicits membership dues payments may contain
``promotional'' material concerning membership benefits when certain
criteria are met.
DATES: Comments must be received on or before April 6, 1998.
ADDRESSES: Written comments should be mailed or delivered to Manager,
Business Mail Acceptance, USPS Headquarters, 475 L'Enfant Plaza SW.,
Washington, DC 20260-6808. Copies of all written comments will be
available for inspection and photocopying between 9 a.m. and 4 p.m.,
Monday through Friday, in Room 6801 at the above address.
FOR FURTHER INFORMATION CONTACT: Jerome M. Lease, 202-268-5188.
SUPPLEMENTARY INFORMATION: Nonprofit organizations authorized to mail
at the Nonprofit Standard Mail rates often list ``member benefits''
when soliciting new members or renewals. The Postal Service has long
held that references to benefits are ``permissible,'' i.e., not
considered solicitations under the statutory restrictions on matter
eligible for the nonprofit rates, provided advertising, promotional, or
application materials for such benefits are not included in the
mailpiece.
The Postal Service position is based on 39 U.S.C. 3626(j)(2)(B),
which is implemented in Domestic Mail Manual (DMM) E670.5.7b, and
states that an authorized nonprofit organization's material is not
disqualified from being mailed at the Nonprofit Standard Mail rates
solely because that material contains, but is not primarily devoted to,
references to and a response card or other instructions for making
inquiries about services or benefits available from membership in the
authorized organization, if advertising, promotional, or application
materials for such services or benefits are not included. If
advertising, promotional, or application materials are present in a
mailpiece that announces the availability of membership services or
benefits, the mailpiece is not eligible for the Nonprofit Standard Mail
rates unless the provision of such services or benefits is
``substantially related'' to the exercise or performance by the
organization of one or more of the purposes under which the
organization qualified to mail at the Nonprofit Standard Mail rates or,
if the benefit is for travel, insurance, or financial instruments such
as credit cards which are subject to separate rules, other prescribed
exceptions are met. See 39 U.S.C. 3626(j) and DMM E670.5.4.
The Postal Service considers descriptive information printed in
conjunction with the generic name of a service or product constituting
a membership benefit, to be promotional. For example, information such
as ``low cost,'' ``no annual fee,'' or ``5% interest rate'' to describe
a credit card offered as a membership benefit would be considered
promotional material (in the same manner as words such as
``delicious,'' ``nutritional,'' or ``inexpensive'' would be considered
promotional if used to describe food products) which may make the
mailpiece ineligible for the Nonprofit Standard Mail rates. Purchase
terms and conditions, and brand names are also considered promotional.
On November 14, 1997, the Postal Service published a final rule in
the Federal Register allowing solicitations for contributions or
membership dues payments that offer ``backend premiums'' not to be
considered advertising for the premium(s) when certain criteria are met
(See 62 FR 61014-61015 (November 14, 1997)). In doing so, the Postal
Service determined to consider the solicitation as a single
transaction, and considered whether it was predominantly a request for
contributions or dues payments. The Postal Service believes it
appropriate to adopt a similar approach with respect to the
announcements of benefits available to members. Nevertheless, the
Postal Service is mindful of section 39 U.S.C 3626(j)(2)(B), which
prohibits the inclusion of advertising, promotional, or application
materials in conjunction with these advertisements.
The Postal Service proposes an amendment to Domestic Mail Manual
E670.5.7b., to provide that a solicitation for new members or renewal
of membership may, to a minor extent, describe membership benefits with
the use of promotional terms provided it can be determined by an actual
measurement that the piece is primarily a solicitation for new members
or a renewal offer. For purposes of this exception, minor is defined as
less than half. Measurement would be performed in accordance with the
same standards for measuring advertising and nonadvertising in a
Periodicals publication. See DMM P200.1.7. This change, which will
affect mailings made after the date any rule change is adopted and not
retroactively to previous mailings, only applies to the solicitation
letter itself, and not to any brochures, circulars, flyers, or other
separate, distinct, or independent documents. Any advertising,
promotional, or application materials in these latter documents may
cause the mailpiece to be ineligible for the nonprofit rates. The
proposal does establish a limited exception for an organization which
prepares a standard, preprinted document, consisting of a single sheet,
that lists and describes its member benefits. This document may be
[[Page 11200]]
enclosed with and considered part of the solicitation letter for
purposes of applying the proposed test, provided that the letter does
not itself list or describe the member benefits. The latter may,
however, refer the addressee to the separate list of benefits. (For
example, the letter may state: ``For a description of benefits
available to members, please see the attached sheet'', as long as no
promotional material concerning the benefits is included.)
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 of the DMM, incorporated by reference
in the Code of Federal Regulations. (see CFR part 111).
List of Subjects in 39 CFR Part 111
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, 3001-
3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
2. Amend Domestic Mail Manual E670.5.7, by revising b. to read as
follows:
E Eligibility
* * * * *
E670 Nonprofit Standard Mail
* * * * *
* * * * *
5.0 ELIGIBLE AND INELIGIBLE MATTER
* * * * *
5.7 Other Matter
An authorized nonprofit organization's material is not disqualified
from being mailed at the Nonprofit Standard Mail rates solely because
that material contains, but is not primarily devoted to:
* * * * *
b. References to and a response card or other instructions for
making inquiries about services or benefits available from membership
in the authorized organization, if advertising, promotional, or
application materials for such services or benefits are not included.
For purposes of this section, descriptions of member benefits available
as a part of membership including the use of adjectives, terms,
conditions, and brand names, are permissible when they are a minor part
of a solicitation or renewal request for membership payments. For
purposes of this provision, ``minor'' is defined as ``less than half.''
Measurement is made in accordance with P200.1. The solicitation or
renewal request in which, to a minor degree, member benefits may be
promoted is considered to include only a printed letter to prospective
members or current members whose membership is about to expire, and not
to any separate, distinct, or independent brochure, circular, flyer, or
other documents. Such separate documents will be considered advertising
if they contain any advertising, promotional, or application materials.
Exception: A separate document prepared by the qualifying organization,
consisting of one sheet, will be considered to be part of the
solicitation letter if it describes the organization's member benefits
and the solicitation letter does not describe the organization's
benefits but instead refers the reader to the separate document.
* * * * *
An appropriate amendment to 39 CFR 111.3 to reflect these changes
will be published if the proposal is adopted.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 98-5772 Filed 3-5-98; 8:45 am]
BILLING CODE 7710-12-U
