[Federal Register: April 19, 2004 (Volume 69, Number 75)]
[Proposed Rules]
[Page 20841-20845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ap04-29]
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POSTAL SERVICE
39 CFR Part 111
Eligibility Requirements for Standard Mail
AGENCY: Postal Service.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the Domestic Mail Manual (DMM)
standards concerning material eligible for mailing at Standard Mail
postage rates. Specifically, it would clarify the circumstances in
which mail containing ``personal'' information may be eligible for
Standard Mail rather than First-Class Mail rates. The proposal also
reorganizes and renumbers other provisions for First-Class Mail and
Standard Mail to better describe the service provided under each class.
DATES: Written comments must be received on or before June 18, 2004.
ADDRESSES: Written comments should be mailed or delivered to the
Manager, Mailing Standards, U.S. Postal Service, 1735 N Lynn St Rm
3025, Arlington VA 22209-6038. 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 between 9 a.m. and
4 p.m., Monday through Friday. Comments may not be submitted via fax or
e-mail.
FOR FURTHER INFORMATION CONTACT: Sherry Freda, Manager, Mailing
Standards, U.S. Postal Service, 703-292-3648 or
Sherry.L.Freda@usps.gov.
SUPPLEMENTARY INFORMATION: Certain types of mail, such as bills,
statements
[[Page 20842]]
of account, and handwritten and typewritten material, are required to
be mailed as First-Class Mail (which includes Priority Mail) or Express
Mail. In addition, material having the character of actual and personal
correspondence must be mailed as First-Class Mail or Express Mail.
As technology has evolved, mailers have been able to increase the
amount of personal information in computer-generated mailings,
including advertising material typically entered as Standard Mail.
These advances in technology have motivated some Postal Service
customers to request more explicit guidance on Standard Mail
eligibility. The Postal Service has reviewed the standards and proposes
the following revisions to the Domestic Mail Manual to clarify the
distinction between First-Class Mail and Standard Mail.
Background
Postal Service standards for First-Class Mail and Standard Mail are
based, in part, on laws enacted by Congress. These regulations specify
that printed material weighing less than 16 ounces may be sent as
Standard Mail if it is not required to be entered as First-Class Mail.
Generally, mail wholly or partially in writing or typewriting, mail
closed against postal inspection, material having the character of
actual and personal correspondence, and bills and statements of account
must be mailed as First-Class Mail or Express Mail.
Printed material, most of which is prepared by computers, often
qualifies at the Standard Mail rates. If it includes personal
information, printed material may have the character of actual and
personal correspondence and be subject to the First-Class Mail rates.
However, under certain conditions, printed material containing personal
information may be eligible for Standard Mail rates.
The distinction is based on a regulation adopted by the Postal
Service in the early 1980s. At that time, as computers were becoming
increasingly sophisticated and commonplace, mailers were able to
include personal information to individuals in an otherwise generic
mailing. Marketers began to use personal information, such as
information concerning previous purchases, to influence an addressee to
make new purchases. Since such materials, albeit without the personal
information, usually had been sent at Standard Mail rates, mailers
sought to continue to use those rates.
These efforts resulted in the adoption of the standards in current
DMM E610.2.3, which create a limited exception to the general principle
that material containing personal information be entered as First-Class
Mail. Over the last several years this provision has become more
significant. As mailers have been able to build more complex data files
on customers, they have increasingly sought to include personal
information in Standard Mail mailings. Furthermore, questions have been
raised recently concerning printed material, including computer-
generated personal information in mailpieces such as tax materials,
warranties, proxy materials, financial services mailings such as credit
card and equity loan advertisements, and others. Some of these mailings
included advertising, while others did not. Given the potential
consequences of a decision that a mailing is not eligible for Standard
Mail rates, mailers have sought, and the Postal Service proposes, the
following guidance to distinguish First-Class Mail from Standard Mail.
The classification of a mailpiece is based upon an examination of
its specific contents. This rulemaking is intended to help mailers and
Postal Service employees determine how to design and decide whether
mail may be sent as Standard Mail or First-Class Mail, and help mailers
plan and budget for their mailing campaigns.
Summary of Standard Mail Eligibility Decisions and the Scope of the
Proposed Changes
As the Postal Service has discussed with customers, the proposed
changes are intended to create a ``bright line'' concerning the
inclusion of personal information in Standard Mail. Other eligibility
standards are left unchanged, although we reorganized them for clarity
and to better describe our services.
This proposal concerns the content limits for Standard Mail.
However, before considering whether the content of printed material
qualifies for entry as Standard Mail, there are basic requirements to
consider. First, there is a weight limit on Standard Mail: each piece
must weigh less than 16 ounces. There are also volume and preparation
requirements. Mail that does not comply with any of these standards is
not eligible for Standard Mail rates, regardless of content. These
provisions are not affected by the proposal.
To be eligible for Standard Mail rates, printed material must be
sent in identical terms to more than one person. This standard has not
changed.
Mail that is authorized to be entered as Periodicals mail is
ineligible for Standard Mail rates. The proposal does not affect this
restriction.
Mail that is required to be mailed as First-Class Mail, and is
therefore ineligible for Standard Mail, includes material containing
the following: (1) Bills and statements of account; (2) handwritten or
typewritten material; (3) mail sealed against postal inspection; and
(4) material having the character of actual and personal
correspondence. This proposal would not affect any of the first three
categories.
The Domestic Mail Manual does not provide any exceptions to the
requirement that mail having the character of actual and personal
correspondence be entered as First-Class Mail other than the
stipulation that the inclusion of the date and name of the addressee
and sender does not render a piece ineligible for Standard Mail.
However, as explained above, the Postal Service created standards in
the early 1980s recognizing technological advancements that permitted
the inclusion of personalized information in advertising material
historically sent as Standard Mail. Customers sought to include such
personal information in their mailings, without forfeiting eligibility
to mail at Standard Mail rates, because the inclusion of this
information increased the effectiveness of their advertising.
An example of such a mailpiece is one produced by a firm that
markets and ships candies. Rather than sending a generic catalog to
potential customers, the company includes with the catalog a list of
the specific purchases the addressee made the previous year (i.e., the
items purchased and the names and addresses of the recipients) and asks
whether the addressee wishes to duplicate or add to that order. The
previous year's purchases are considered to be personal information for
the addressee. However, that information is directly related to the
mailer's advertising for the sale of its products, has no intended use
other than to increase the effectiveness of the advertising, and has no
purpose other than to promote additional sales of candy. Consequently,
the mailing is eligible for Standard Mail rates.
The ``Exclusive Purpose'' Test
The Postal Service continues to believe that this example mailpiece
should be entitled to Standard Mail rates, and this proposal would not
change its eligibility. The mailpieces that are the subject of recent
concerns are certain pieces with the dual purpose of conveying personal
information to the addressee while advertising a product or service or
soliciting donations. Postal Service standards did not provide guidance
for accepting dual-
[[Page 20843]]
purpose pieces that convey personal information.
Clarifying the standards should benefit mailers and consumers. For
mailers, this lack of guidance for dual-purpose mailpieces has led to
two consequences. First, they might be uncertain if a piece would be
accepted at Standard Mail rates, making budgeting and marketing
decisions difficult. And second, a competitive advantage might be
created if they are required to mail at First-Class Mail rates while a
business competitor is permitted to mail a similar piece at Standard
Mail rates. Clarifying the standard should ensure that nonmarketing,
personal material is mailed as First-Class Mail. First-Class Mail is
sealed against postal inspection and is the most secure class of mail.
Clarifying the standard has become increasingly important given the
heightened awareness and sensitivity about the need to safeguard
personal information.
While reviewing the cases that prompted customer concerns it became
clear that it was important to establish a ``purpose'' test. Customer
comments confirmed that this issue needed to be addressed. After
careful review, the Postal Service proposes that personal information
be permitted in advertising and solicitation mail sent at Standard Mail
rates only when advertising or solicitation is the exclusive purpose of
the piece, and personal information is included solely to increase the
effectiveness of the advertising or solicitation.
There are three reasons for this choice. First, but of least
importance, it is consistent with the spirit of the original rulemaking
in the 1980s. We caution that this is the least important reason since
the standard could be changed if there are worthy reasons for changing
it.
Second, it is open to question whether dual-purpose pieces--pieces
intended to convey personal information to the addressee as well as to
advertise products or services or solicit donations--are eligible for
Standard Mail rates. The authority on which the DMM standards are
based, the Domestic Mail Classification Schedule and, before that,
federal statute, provides that material having the character of actual
and personal correspondence is not eligible for Standard Mail rates. It
is questionable whether such material is eligible for Standard Mail
rates by ``piggybacking'' on advertising or solicitation matter that,
by itself, is eligible for that rate.
Finally, an ``exclusive purpose'' test lends itself to clearer
administration. It will promote consistent classification decisions by
Postal Service personnel and an understanding among customers of how
their mail will be classified. In turn, this will promote two of the
goals that mailers have advised are important to them: (1) Certainty in
planning and budgeting mailing campaigns; and (2) minimizing situations
where a business, because of mail classification decisions, gains a
competitive advantage over another business.
Explanation of Proposed Changes
The proposed standards reorganize and renumber Domestic Mail Manual
E110 and E610, which provide the basic descriptions of First-Class Mail
and Standard Mail. These revisions, which do not effect any substantive
changes, are intended to better describe our services and allow
customers to compare the characteristics and benefits of each.
The clarification of the circumstances in which personal
information may be included in Standard Mail is in proposed E610.3.1.
In addition, the provisions for First-Class Mail, E110.3.4, would
clearly explain that mail eligible for Standard Mail rates under new
E610.3.1 would not be required to be entered as First-Class Mail.
One change between the existing and proposed standards is that the
proposed provisions no longer differentiate between ``circulars'' and
other types of printed material as do current E610.2.1 and E610.2.2.
Similar standards apply to all printed material entered as Standard
Mail.
The existing provisions explaining when personal information may be
included in Standard Mail, current E610.2.3, would be renumbered and
revised as E610.3.1. Current provisions E610.2.3(a), (b), and (c) would
be deleted from the proposed standards. These provisions describe
certain types of personal information that might be included in
Standard Mail under proposed E610.3.1. However, we do not see a reason
to limit the types of personal information that might be included in
Standard Mail under the revised standard. Rather, under the proposal,
personal information might be included in Standard Mail if the piece
meets the conditions outlined in proposed E610.3.1.
In contrast to current DMM E610.2.3, revised E610.3.1 would list
the conditions that must be met for a mailpiece containing personal
information to be eligible for Standard Mail rates. If a mailpiece
contains personal information concerning the addressee, it will be
eligible for Standard Mail rates only if it meets each of the following
conditions: (1) It contains explicit advertising for a product or
service for sale or lease or a solicitation for a donation; (2) all of
the personal information concerning the addressee is directly related
to the advertising or solicitation; and (3) advertising or soliciting
is the exclusive purpose of the mailpiece.
Whether the piece contains personal information will be determined
under the same policies as those that apply today. As explained in
proposed E110.3.2, personal information includes any information
specific to the addressee. For the purposes of applying the standard,
personal information need not be unique to the addressee: for example,
two addressees may share the same birthday, which is personal
information specific to the addressee, but not unique to one addressee
alone.
The Postal Service will make a determination of mailpiece
eligibility based on the mailpiece itself. For example, numbers that
are not labeled or elsewhere defined in the mailpiece are not
considered to be personal, even if information provided apart from the
mailpiece reveals the numbers to be PINs or other personal information.
Instructions or other information in the mailpiece that are provided
equally to all addressees in the mailing are not considered personal.
And, finally, under the conditions in proposed E610.3.1, even if
personal information is included in the mailpiece it will not
disqualify it from entry at Standard Mail rates if conditions (a)
through (c) are met.
The requirement that the mailpiece contain advertising for a
product or service for sale or lease or a solicitation for a donation
is similar to the current standard, except that the proposal states
that the advertising or solicitation must be explicit. That is, the
advertisement or solicitation should not be ``subtle'' or ``implied.''
Anyone reading the piece should understand that it includes advertising
or a solicitation and should be able to easily identify the product or
service advertised or the cause for which donations are sought.
The requirement that the personal information be directly related
to the advertising or solicitation is similar to the current standard.
The proposal makes clear that all of the personal information must be
directly related to the advertisement or solicitation.
Proposed E610.3.1(c) explains the ``exclusive purpose'' test, which
is discussed more fully in an earlier section of this notice. Under
this standard, the personal information in the piece should have no
intended purpose other than to increase the appeal of the advertising
or solicitation.
[[Page 20844]]
A finding that the personal information has an intended use other than
to increase the appeal of the advertising or solicitation may be based,
for example, on how the information is labeled (i.e., if the piece
explains a use for the information), or on the sender's legal,
contractual, or other obligation to provide the information to the
addressee.
The mere fact that the information may incidentally serve some
useful purpose to the addressee does not disqualify the piece from
entry at Standard Mail rates. For example, in the candy shipper
scenario described above, the list of the names and addresses of the
previous year's purchases may remind the addressee of a relative's
address he or she had misplaced. However, that was not the intended use
of that information and would not disqualify the piece from entry at
Standard Mail rates.
Implementation Schedule
If the proposal is adopted, the Postal Service intends to defer its
implementation until January 1, 2005. This time frame is intended to
provide customers adequate time to budget and plan future mail
campaigns. Until then, the Postal Service will continue to apply the
current standards.
As explained in previous sections of this notice, most of the
current policies would remain intact under the proposed standard, with
the major difference being the ``exclusive purpose'' test in proposed
E610.3.1(c). Accordingly, if personal information is included in the
mailpiece, it still must be directly related to advertising for a
product or service for sale or lease or solicitation for donations to
qualify for Standard Mail rates before January 1, 2005. However, until
that date, the Postal Service will not employ a purpose test, and a
piece in which the personal information is directly related to
advertising or a solicitation will qualify for Standard Mail rates
without regard to compliance with a purpose test.
If the proposal is adopted, the Postal Service will review and
revise as needed existing Customer Support Rulings concerning Standard
Mail and will issue new rulings as appropriate.
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, which is
incorporated by reference in the Code of Federal Regulations. See 39
CFR 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,
416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
2. Revise the following sections of the Domestic Mail Manual (DMM)
as set forth below:
E ELIGIBILITY
* * * * *
E100 First-Class Mail
E110 Basic Standards
[Renumber current 2.0 through 5.0 as 4.0 through 7.0. Replace
current 1.0 with new 1.0, 2.0, and 3.0, as follows:]
1.0 DESCRIPTION OF SERVICE
1.1 Service Objectives
First-Class Mail receives expeditious handling and transportation.
Service objectives for delivery are 1 to 3 days; however, delivery time
is not guaranteed.
1.2 Rate Options
First-Class Mail offers the flexibility of single-piece rates, and
discounted rates for mailings of 500 or more pieces that weigh 13
ounces or less.
1.3 Mailable Items
First-Class Mail may be used for any mailable item, including
postcards, letters, flats, and small packages. Customized MarketMail
under E660 and other restricted material as described in C020 may not
be mailed as First-Class Mail.
2.0 DEFINING CHARACTERISTICS
2.1 Inspection of Contents
First-Class Mail is closed against postal inspection. Federal law
and Postal Service regulations restrict both opening and reviewing the
contents of First-Class Mail by anyone other than the addressee.
2.2 Forwarding Service
The price of First-Class Mail includes forwarding service to a new
address for up to 12 months.
2.3 Return Service
The price of First-Class Mail includes return service if the
mailpiece is undeliverable.
2.4 Extra Services Exclusive to First-Class Mail
First-Class Mail is the only class of mail eligible to receive the
following extra services: registered mail service and certified mail
service.
2.5 Additional Extra Services
Additional extra services available with First-Class Mail are
certificate of mailing service, COD service, Delivery Confirmation
service (parcels only), insured mail service (merchandise only), return
receipt service, restricted delivery service, Signature Confirmation
service (parcels only), and special handling. See S900.
3.0 CONTENT STANDARDS
3.1 Bills and Statements of Account
Bills and statements of account must be mailed as First-Class Mail
(or Express Mail) as follows:
a. Bills and statements of account assert a debt in a definite
amount owed by the addressee to the sender or a third party. In
addition, bills include a demand for payment; statements of account do
not include a demand for payment. The debt does not have to be due
immediately but may become due at a later time or on demand. The debt
asserted need not be legally collectible or owed.
b. Bills and statements of account do not need to state the precise
amount due if they contain information that would enable the debtor to
determine that amount.
3.2 Personal Information
Mail containing personal information must be mailed as First-Class
Mail (or Express Mail). Personal information is any information
specific to the addressee.
3.3 Handwritten and Typewritten Material
Mail containing handwritten or typewritten material must be mailed
as First-Class Mail (or Express Mail).
3.4 Material Not Required to be Mailed as First-Class Mail
Mail eligible for Standard Mail or Package Services rates under
E610 or E700 is not required to be mailed as First-Class Mail or
Express Mail.
* * * * *
E600 Standard Mail
E610 Basic Standards
[Renumber current 3.0 through 9.0 as 4.0 through 10.0. Replace
current 1.0 and 2.0 with new 1.0, 2.0, and 3.0, as follows:]
[[Page 20845]]
1.0 DESCRIPTION OF SERVICE
1.1 Service Objectives
Standard Mail may receive deferred handling. Service objectives for
delivery are 2 to 9 days; however, delivery time is not guaranteed.
1.2 Quantity
Standard Mail provides economical rates for mailings of 200 or more
pieces or at least 50 pounds of mail.
2.0 DEFINING CHARACTERISTICS
2.1 Mailpiece Weight Limit
All Standard Mail pieces--letters, flats, and small packages--must
weigh less than 16 ounces.
2.2 Preparation Requirements
Standard Mail is subject to specific volume, marking, and
preparation requirements.
2.3 Inspection of Contents
Standard Mail is not sealed against postal inspection.
2.4 Forwarding Service
The price of Standard Mail does not include forwarding service.
Forwarding is available for an additional fee. Undeliverable Standard
Mail with no ancillary service endorsement is disposed of by the Postal
Service under F010.5.3.
2.5 Return Service
The price of Standard Mail does not include return service. Return
service is available under F010.5.3 for an additional fee.
2.6 Extra Services
Extra services available with Standard Mail are insured mail
service (bulk insurance only), certificate of mailing service (bulk
certificate of mailing only), return receipt for merchandise service,
and Delivery Confirmation service (parcels only). See S900.
2.7 Periodicals
Authorized Periodicals may not be entered as Standard Mail unless
permitted by standard.
2.8 Identical Pieces
The contents of printed matter in a Standard Mail mailing must be
identical to a piece sent to at least one other addressee. Standard
Mail may include the addressee's name and address but may not transmit
personal information except as permitted under 3.0.
3.0 CONTENT STANDARDS
3.1 Personal Information
Personal information may not be included in a Standard Mail
mailpiece unless all of the following conditions are met:
a. The mailpiece contains explicit advertising for a product or
service for sale or lease or an explicit solicitation for a donation.
b. All of the personal information is directly related to the
advertising or solicitation.
c. Advertising or solicitation is the exclusive purpose of the
mailpiece.
3.2 Bills and Statements of Account
Mail containing bills or statements of account as defined in
E110.3.0 may not be entered as Standard Mail except under the
conditions described in 5.2.
3.3 Handwritten and Typewritten Matter
Mail containing handwritten or typewritten matter may not be
entered as Standard Mail except under the conditions described in 4.0.
An appropriate amendment to 39 CFR part 111 will be published if
the proposal is adopted.
Neva R. Watson,
Attorney, Legislative.
[FR Doc. 04-8722 Filed 4-16-04; 8:45 am]
BILLING CODE 7710-12-P