P.S. Docket No. 3/59
October 06, 1975
In the Matter of the Petition by
AMERICAN CHEMICAL SOCIETY
1155 16th Street,
N.W., Washington, D. C. 20036
Revocation of Second-Class Mail Privileges for "CHEMICAL ABSTRACTS
SERVICE SOURCE INDEX"
P.S. Docket No. 3/59
October 6, 1975
William A. Duvall Chief Administrative Law Judge
APPEARANCES: Ralph N. Albright, Jr., Esq.
888 17th Street, N.W.
Washington, D.C. 20006
for Petitioner
Arpad de Kovacsy, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260
for Respondent
INITIAL DECISION
This is a proceeding initiated by Petitioner pursuant to 39 C.F.R. Part 954 to contest the ruling of Respondent, represented by the Manager of the Mail Classification Division, Finance Department (hereinafter the "Manager"), which annulled, subject to the outcome of this proceeding, Petitioner's second-class mail privileges in respect of its publication, "Chemical Abstracts Service Source Index" (hereinafter sometimes referred to as the "publication").
The reasons for the ruling were stated by the Manager as follows (Ex. A to petition):
Pursuant to section 132.211, Postal Service Manual, only newspapers and other periodical publications may be mailed at the second-class rates of postage. A periodical as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily, each number is incomplete in itself and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the articles appearing in them, whether they be successive chapters of the same story or novel of essays upon subjects pertaining to general literature.
The preceding definition of a periodical is based on a Supreme Court ruling in the case Houghton v. Payne , 194 U.S. 88 (1904).
Section 132.224, Postal Service Manual, provides that second-class publications must be originated and published for the purpose of disseminating information of a public character, or they must be devoted to literature, the sciences, art or some special industry.
We have examined copies of the issues of "Chemical Abstracts Service Source Index" covering the last quarter of 1973, and the first quarter of 1974. The publication contains lists of indexes of sources of information on given subjects. The publication contains no original articles and is, in fact, a reference book or directory. Accordingly, the publication is not a periodical. [See In The Matter of One-Spot Publishers, Inc., P.O.D. Docket 1/232 (1960) and In the Matter of R. R. Bowker Company, P.O.D. Docket No. 2/97 (1964)]
Upon filing of the Petition, a hearing was scheduled for July 29, 1974. However, on request of respondent, without objection by petitioner, the hearing was continued pending issuance of a Reconsideration Decision in Florists' Transworld Delivery Association case, P.S. Docket No. 1/167. A hearing thereafter scheduled for December 11, 1974, was continued to March 4, 1975, on request of petitioner, without objection by respondent. At the hearing on March 4, 1975, both parties presented evidence. After the close of the hearing, proposed findings of fact, conclusions of law and supporting briefs were filed by both parties.
The parties stipulated at the hearing that the only issue to be adjudicated is whether the publication is a periodical within the meaning of 132.2 of the Postal Service Manual. They further stipulated the facts alleged in paragraphs numbered 1 through 8 of the petition and exhibits A and B attached thereto (Tr. 3).
FINDINGS OF FACT
1. The American Chemical Society is a non-profit scientific and educational membership corporation, organized and existing by an Act of Congress, P.L. 358, 75th Congress, 1st Session, 50 Stat. 798, whose principal place of business is at 1155 Sixteenth Street, N.W., Washington, D. C. The Society is exempt from federal income taxation by virtue of 26 U.S.C. 501(c)(3)(1964) (Petition, Par. 1; Stip., T. 3).
2. According to the above-mentioned act of incorporation, the American Chemical Society's corporate objects and purposes are, inter alia , to encourage in the broadest and most liberal manner the advancement of chemistry in all its branches; and to increase and diffuse chemical knowledge to the fullest extent (Petition, Par. 2; Stip., Tr. 3).
3. The American Chemical Society is one of the largest organizations in the world devoted to science. Its membership consists of over 100,000 chemists and chemical engineers, including among these members Nobel prize winners, university presidents and professors, heads of prominent chemical industries, leading research and industrial chemists, and leading chemists in Government (Petition, Par. 3; Stip., Tr. 3).
4. All of the revenue of the American Chemical Society is obtained from membership dues, subscriptions to its numerous journal and abstract publications, sale of advertising in these publications, and from cost-type contracts with the Government and other organizations. It also engages in research and development activities funded partially by its subscription income, and partially by Government grants (Petition, Par. 4; Stip., Tr. 3).
5. In connection with its corporate purposes, the Society publishes numerous scientific journals and other publications, one of which is the "Chemical Abstracts Service Source Index", published through the Chemical Abstracts Service, a division of the American Chemical Society (Petition, Par. 5; Stip., Tr. 3).
6. Effective January 30, 1970, the then Post Office Department granted second-class privileges for "Chemical Abstracts Service Index", and said publication has enjoyed such privileges since that date (Petition, Par. 6; Stip., Tr. 3).
7. On May 22, 1974, the Manager, Mail Classification Division, United States Postal Service, notified the petitioner that second-class mail privileges for "Chemical Abstracts Service Source Index" would be annulled on the stated ground that said publication was not a "periodical" (Petition, Par. 7 and Ex. A; Stip., Tr. 3).
8. On June 4, 1974, the publisher through counsel requested, and on June 7, 1974 obtained, an extension of time until June 28, 1974, within which to file its appeal from the action annulling said second-class privileges (Petition, Par. 8 and Ex. B; Stip., Tr. 3).
9. The publication meets the basic qualifications set forth in Postal Service Manual, 132.22 as to (a) frequency of issue, (b) issuance and mailing at a known office of publication, (c) preparation, (d) contents, and (e) list of subscribers (Tr. 4).
10. The publication is published quarterly. Each issue bears a consecutive volume and issue number.
11. According to its cover and testimony adduced at the hearing it contains "bibliographic descriptions for the source literature of the chemical sciences with key to library holdings" (Pet'r Exs. 1A - 1D; Tr. 12). According to the "Foreword" appearing in each issue and testimony adduced at the hearing, the publication is composed by computer from a continually updated, computer-maintained data base. Also, according to such "Foreword," the publication provides complete identifications of source publications in the chemical sciences customarily cited by their abbreviated titles and a list of libraries at which a searcher may gain access to complete, original documents (Pet'r Exs. 1A - 1D; Tr. 14, 28, 29).
12. The issues of the publication placed in the record (Pet'r Exs. 1A - 1D) are the quarterly issues covering October-December 1973, January-March 1974, April-June 1974, and July-September 1974, the latter being also the annual cumulative issue covering the period October 1973-September 1974. They are representative of one year's production of the publications. (Tr. 40)
13. The publication consists of booklets 8 by 11 inches in size under a flexible cardboard cover. The first three quarterly issues in evidence consist of from 37 to 55 pages and are stapled. The fourth, cumulative, issue consists of 124 pages and is bound glued.
14. The contents of a typical issue (Ex. 1B covering the period January-March 1974) may be tabulated as follows:
Number of
Subject Matter Description Pages
Title page Title, volume and issue 1
number, and information
as to publishing, postage,
and copyright.
"Contents" As title implies together 1
with subscription information
and an explanation of the
coded bibliographic strip on
the cover identifying each
issue.
"Foreword" Explanation of method of 3
composition of the publi-
cation and its contents, sum-
mary of entries, sample entries
illustrating and explaining the
format, and an "entry content
key" explaining the meaning of
each element of the entries.
"Directory of Listing of libraries which 7
Participating routinely supply information
Libraries" as to their holdings of source
publications in the chemical
sciences.
"Directory of Listing of abbreviations used 8
Publishers and in the publication for identifi-
Sales Agencies" cation of publishers of source
(appears only publications and the addresses
in Pet'r Ex. of such publishers.
1B)
"Entries" Abbreviated bibliographic 35
identification of each item
of source literature of which
petitioner has become aware
during the quarter, identification
of libraries holding each such
item, and price of each item.
15. The publication provides a unique and comprehensive bibliographic identity, in abbreviated form, of new source scientific and technical literature in the fields of chemistry, chemical technology, and chemical engineering together with the history of each item insofar as petitioner has been able to ascertain it (Tr. 10, 13). The history consists mainly of the years of publication and changes in title. The bibliographic identity includes an abbreviation of the title of the item, constructed according to conventions established by the International Standards Organization (Tr. 12).
16. The publication informs users as to which of the world's approximately 400 major research libraries subscribe to, or possess, each source item.
17. Information included in the entries is obtained by petitioner's staff from the masthead of source items, correspondence with publishers, bibliographies, the Library of Congress, and to a large extent from various questionnaires, called "checking editions," sent periodically to major research libraries (Tr. 13-15, 18; Pet'r Exs. 2, 3A - 3D).
18. The entries in the publication are in highly abbreviated form, rather than standard prose form, to achieve compactness for convenience in handling and use (Tr. 22). None of the information on the entries is presented in the form of ordinary sentences composes of words constituting articles or literary compositions as these phrases are commonly understood.
19. The entries in the publication are composed by members of petitioner's staff from information derived from sources mentioned in paragraph 17, above.
20. The entries in the publication are original and unique in the sense that they contain information extracted from many sources, are compiled or presented according to a highly structured set of conventions by trained librarians and linguists, and are not found in any other publication (Tr. 24, 25). A considerable amount of editorial effort is required in the collection, preparation and arrangement of the information included in the entries.
21. The source literature listed in the publication emanates from more than 100 countries and is published in over 50 different languages (Tr. 13).
22. The subscribers to the publications are academic and public libraries, libraries in private industry, government, medical, hospital and research institute libraries (Tr. 20).
23. These libraries subscribe to the publication for three principal reasons. First, the publication provides them a means of fully identifying primary or periodical literature from an abbreviated citation furnished by a researcher. Second, it enables libraries to determine where such literature may be located. Third, because of the publication's accurate bibliographic description of such literature, libraries use it as a reference tool for their own internal work, such as cataloging (Tr. 20, 21).
24. The publication is unique in that it is the only one which lists together both journals and the proceedings of symposia and conferences (Tr. 51).
25. The publication is the official standard for abbreviations of periodical titles and is the authority for abbreviations used in bibliographies (Tr. 50).
26. Fewer than three of the approximately 400 listings of libraries contained in the "Directory of Participating Libraries" are changed from issue to issue (Tr. 33).
27. The "Entries" section of each issue, except the annual cumulative issue, contains approximately 800 to 1100 entries identifying source publications which have come to petitioner's attention since the last issue and have not been listed previously, and updated information, such as changes in title or discontinuations, concerning source publications which have been listed previously (Pet'r Exs. 1A - 1C, "Foreword"; Tr. 33, 34).
28. The annual cumulative issue contains the same type of entries as the regular quarterly issues covering new source publications and updated information which have come to petitioner's attention during the fourth quarter plus all the entries contained in the three previous quarterly issues (Tr. 35, 36). Subscribers may dispose of the three previous quarterly issues when the annual cumulative issue is received (Tr. 39).
29. According to petitioner's evidence, approximately 5 percent of entries in each quarterly issue, or 20 percent of all entries for a one year period, constitute changes relating to identity or cessation of publication of previous entries (Tr. 34-36).
THE REGULATIONS
The authority cited for the proposed revocation action is found in 39 C.F.R. 132.2(a)(1) (Postal Service Manual, 132.211) which provides as follows: "Only newspapers and other periodical publications which meet the mailability criteria established in Part 123 may be mailed at the second-class rates."
The mailability criteria referred to in the quoted provision are not involved in this proceeding because the parties have stipulated that they have been satisfied and that the only issue for determination is whether "Chemical Abstracts Service Source Index" is a periodical.
CONTENTIONS OF THE PARTIES
Respondent argues that the publication does not meet certain elements of the Supreme Court's definition of the term "periodical" stated in Houghton v. Payne , 194 U.S. 88, 97 (1904) as follows:
A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature.
Respondent says the publication (a) does not contain a variety of original articles by different authors, (b) does not meet the requirement of incompleteness, and (c) does not meet the requirement of continuity, all of which are encompassed by the Houghton v. Payne definition.
Respondent argues that the publication is simply an index and reference source, not a periodical, citing American Chemical Society,P.O.D. Docket No. 3/90; American Bibliographical Center, CLIO Press Inc ., P.S. Docket No. 2/106; Shepard's Citations, Inc ., P.S. Docket No. 1/88.
Further, respondent says that the publication does not fall within the definition of "nondescript publications" entitled to second-class status, such definition being limited to transportation guides (citing Florists' Transworld Delivery Association , P.S. Docket No. 1/167 (Amended Postal Service Decision, p. 34)).
Petitioner argues, in effect, that the publication is a periodical within the Houghton v. Payne definition. It says that an index can be considered a periodical for purposes of determining second-class mailing eligibility if a test of "considerable editorial effort" in the preparation thereof is applied. For the necessity or propriety of applying such a test, petitioner refers to certain testimony of the Manager, Mail Classification Division, Finance Department, U. S. Postal Service in American Chemical Society , P.O.D. Docket No. 3/90. Such testimony reflected the Manager's understanding of the basis on which certain index publications ("Index to Legal Periodicals", "Readers' Guide to Periodical Literature", Education Index", and "Cumulative Book Index") were considered periodical publications for second-class mail purposes.
Finally, petitioner contends that if the publication is not a periodical as that term is ordinarily understood, it is a "nondescript publication" published according to the mandate of petitioner's Congressional charter to disseminate widely chemical information and as such, should be accorded second-class mailing privileges.
DISCUSSION
There is no definition of the term "periodical publication" in the applicable regulations or related statutes. However, in Houghton v. Payne , supra , the leading case on second-class mail, the Supreme Court formulated a working definition of the term "periodical" (see Florists' Transworld Delivery Association , P.S. Docket No. 1/167, Amended Postal Service Decision, September 17, 1974). This definition has been quoted above under "Contentions of the Parties" and will not be repeated here. It has been followed by the Postal Service and its predecessor through the years and to the present time.
Although not entirely free from doubt, the publication appears to meet the portion of the Houghton v. Payne definition that each number of a periodical publication be incomplete in itself and indicate a relation with prior or subsequent numbers of the same series. The publication in question appears to fill this requirement in the updating and change characteristics of many of its entries.
Also the continuity requirement is perceived in the same updating and change characteristics as well as the fact that entries in each succeeding issue continue the identification of the latest source publications in the chemical field with the result that currency of such information is maintained for users.
Petitioner's claim that the individual entries in the publication constitute "a variety of original articles by different authors" in keeping with the Houghton v. Payne definition is not persuasive. As found in paragraph 18 of the findings of fact, above, none of the information in the entries is presented in the form of ordinary sentences composed of words constituting articles or literary compositions as these phrases are commonly understood. The entries consist of nothing more than the titles of source publications, followed by abbreviated information concerning former titles, language of publication, years of publication, frequency of publication, price, publisher, successor titles, alternate titles, abbreviation of main entry title, dates and places of meetings (if a record of proceedings of a symposium or conference) and a list of libraries holding the publication. Although the entries are the product of considerable research and editorial effort, they are simply a listing in abbreviated form, of numerous items of information concerning other publications. They possess none of the characteristics of literary compositions or nonfictional prose compositions which the term "article" is commonly defined to mean (see The American College Dictionary (Random House, 1970); Webster's Seventh New Collegiate Dictionary (1971)).
The publication is used primarily by libraries and researchers as a very sophisticated index and reference tool. It is completely devoid of "a variety of original articles by different authors." For similar cases where second-class mailing privileges have been denied because the publications involved did not contain a variety of articles by different authors see American Chemical Society , P.O.D. Docket No. 3/90; American Bibliographical Center CLIO Press, Inc ., P.S. Docket No. 1/88; Institute for Scientific Information, Inc ., P.S. Docket Nos. 2/60, 2/61, 2/62, 2/63, 2/64, 2/70, 2/82 and 2/114.
Petitioner makes a strong, but unpersuasive, argument that the considerable editorial effort that goes into the publication establishes its entitlement to second-class mail rates even though it is an index. The decision in American Chemical Society , P.O.D. Docket No. 3/90, cited by petitioner as support for this argument, distinguishes, on the basis of the amount of editorial effort applied thereto, certain other indexes not directly involved in that proceeding from the publication which was the subject thereof. The discussion in that decision regarding editorial effort was dicta. The nub of the decision was that the publication did not consist of original articles by different authors, and basically lacked the character of a periodical.
We are not aware of any decisional precedent for the proposition that the application of considerable editorial effort qualifies as a periodical a publication which does not contain original articles by different authors as that phrase is commonly understood. In this connection see American Bibliographical Center CLIO Press, Inc ., and Institute for Scientific Information, Inc . both supra , wherein publications involving "original editorial effort" and "important editorial efforts" were denied second-class privileges because they did not contain original articles by different authors.
Finally, petitioner has not supported its argument that it should be granted second-class privileges as a "nondescript publication". The definition of "nondescript publications" for the purpose of second-class mailing privileges has been confined to transportation guides. See Florists' Transworld Delivery Association , P.S. Docket No. 1/167 (Amended Postal Service Decision, September 17, 1974).
In spite of the obvious high quality and usefulness of the publication, the foregoing considerations compel the finding that the publication is not a "periodical publication."
CONCLUSIONS OF LAW
1. The publication "CHEMICAL ABSTRACTS SERVICE SOURCE INDEX" is not a "periodical publication" within the meaning of 39 U. S. Code 4351 and 4354 and Section 132.2 of the Postal Service Manual.
2. The publication is, therefore, not eligible for carriage in the mails as second-class mail matter.
3. The decision by respondent to annul or revoke the second-class mail permit previously in effect for the publication was correct and is hereby sustained.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. To the extent indicated herein, they have been adopted; otherwise they have been rejected for reasons stated, or because they are contrary to or unsupported by the evidence, or because they are immaterial.