Nonprofit Mailers Challenges USPS’s Regulation Authority

U.S. Postal Service (USPS) does not have the legal authority to put in place regulations limiting what fundraisers can put in envelopes to content that is only paper-based, printed matter. The proposed regulation changes violate multiple federal codes and requires adoption by the USPS Board of Governors, according to a letter sent by the Alliance of Nonprofit Mailers to the USPS.

The USPS proposal posted via an Advanced Federal Register Notice on August 23 would limit all USPS Marketing Mail, regular and nonprofit, “letter-size and flat-size, to content that is only paper-based/printed matter.” No merchandise or goods will be allowed of any type regardless of “value.”

Charities use premiums to acquire donors and to renew them. For example, religious organizations often include plastic prayer cards or rosary beads in fundraising appeals. The change would also impact periodical publications of nonprofits that cannot feasibly satisfy the subscriber or requester requirements for Periodicals Mail rates.

Organizations would be forced to Priority Mail, Parcel Select or another USPS rate.  Stephen Kearney, executive director of the Alliance of Nonprofit Mailers (ANM), said such a change would have “a huge negative effect on nonprofits. It would rule out all front-end and back-end premiums that nonprofits have been sending for years.”

A USPS spokesman told The NonProfit Times that the USPS requested comments from mailers. “This is not a notification of a change. It is to gain feedback from mailers on this proposal.” Comments are being accepted until Oct. 22. According to the Alliance’s letter to the USPS, proposal would “violate 39 U.S.C. §§ 3626(a) and (m), which entitle nonprofit mailers to mail products at nonprofit Marketing Mail rates” and that right can’t be regulated away.

Prior to the Postal Reorganization Act in 1970, both nonprofit and commercial mailers were entitled to send any kind of “mailable” merchandise at third-class rates. Title 39 imposed only three restrictions on what was allowed in Third-Class mail, according to the Alliance: A mail piece could not be mailed as third-class mail if it was mailed as First-Class Mail or its contents included personalized information that required mailing as First-Class Mail; A mail piece could not be mailed as Third-Class mail if mailed as “second class mail” (the precursor of Periodicals Mail); and, A Third-Class mail piece could not weigh 16 ounces or more. Excluding merchandise from Marketing Mail would amount to a classification change, according to the Alliance.

The current Mail Classification Schedule allows “any mailable matter weighing less than 16 ounces” to be mailed as Marketing Mail, “except matter that is required to be mailed as First-Class Mail service or copies of a publication that is authorized to be entered as Periodicals mail.”   The Alliance also contends it in some cases it would take an act of Congress to make such changes. The Postal Reorganization Act “confirms that Congress intended to reserve for itself the power to expand or limit the mail matter eligible for nonprofit rates and other preferred rates: H.R. 17070 continues the existing categories of free and reduced-rate mail . . . and provides that the preferential rates accorded these categories of mail will not be changed except by Congress,” according to the Alliance.

The letter was signed by David M. Levy and Eric S. Berman of Venable LLP in Washington, D.C., Counsel for Alliance of Nonprofit Mailers. Read the letter sent to the USPS at https://www.nonprofitmailers.org/7015-2/

The nonprofit community can comment on the proposal through Oct. 22. Comments can be mailed or delivered to the Manager, Product Classification, U.S. Postal Service, 475 L’Enfant Plaza SW, Room 4446, Washington, DC 20260-5015. Comments and questions can also be emailed to [email protected] using the subject line “USPS Marketing Mail Content Eligibility.”

An earlier story on this issue by The NonProfit Times is available at https://bit.ly/2MGbAlf