P.S. Docket No. 21/36
September 30, 1985
In the Matter of the Petition by
ALABAMA DEPARTMENT OF ECONOMIC AND
COMMUNITY AFFAIRS
3465 Norman Bridge Road
P. O. Box 2939
Montgomery, AL 36105-0939
Denial of Second-Class Mail Privileges
for "ADECA NEWS"
P.S. Docket No. 21/36
September 30, 1985
APPEARANCE FOR PETITIONER: Norman Ridenhour
Director, Public Relations
Alabama Department of Economic
and Community Affairs
3465 Norman Bridge Road
P. O. Box 2939
Montgomery, AL 36105-0939
APPEARANCE FOR RESPONDENT: Jeffrey H. Zelkowitz, Esq.
Law Department
United States Postal Service
475 L'Enfant Plaza W., SW
Washington, DC 20260-1143
Grant, Quentin E.
INITIAL DECISION
The petition herein, dated May 14, l985, appeals from the decision of the Director, Office of Mail Classification denying petitioner's application under Domestic Mail Manual (DMM), § 422.3 for a second-class mail permit for its publication ADECA NEWS. Respondent's answer to the petition alleges that the application was properly denied because the publication does not qualify for second class mail privileges under that section of the DMM.
The parties have waived oral hearing and have submitted the case on a Joint Stipulation of Facts and Exhibits. Respondent has filed proposed conclusions of law and a memorandum in support of its posi tion.
FINDINGS OF FACT
Following are the facts stipulated by the parties:
1. ADECA News applied for second-class privileges at the Montgomery, Alabama, Post Office, on January 17, l984, as a publica tion of an institution or society under Domestic Mail Manual § 422.3. This application was filed on Postal Service Form 3502, Application for Second-Class Privileges, as required by Domestic Mail Manual § 441.13, and is submitted as Joint Exhibit 1.
2. ADECA News is published by the Alabama Department of Econo mic and Community Affairs.
3. ADECA News' application indicates that it seeks second-class eligibility on the basis that it is issued by a state board or department of health; public charities and corrections; agricul ture; state conservation or fish and game agency; or state industrial development agency. Joint Exhibit 1, question 19. The application does not indicate which of the specifically named state boards or departments issue the ADECA News, but states that it is published by the Alabama Department of Economic and Community Affairs. Id.
4. The ADECA News is a quarterly publication, and generally has 12 to 20 pages. The January l984, and January 1985, issues of the ADECA News, Joint Exhibit 2 and 3, respectively, are typical issues of the publication.
5. The ADECA News does not contain any advertising.
6. The ADECA News is distributed, free of charge, to anyone who requests it. The persons and organizations to whom it is sent include mayors; probate judges; police chiefs; sheriffs; and agencies serving industrial, juvenile, welfare, and training programs.
7. The Alabama Department of Economic and Community Affairs was created under Alabama law, 22 Code of Alabama ??41-23-1 et seq. (1984 Cum. Supp.). Under these statutory provisions, five state agencies, The Office of State Planning and Federal Programs; the Alabama Department of Energy; the Alabama Law Enforcement Planning Agency; the Office of Highway and Traffic Safety; and the Office of Employment and Training were merged to form the Alabama Department of Economic and Community Affairs in l983, 22 Code of Alabama § 41-23-1. Each of these former agencies is a division of the Alabama Department of Economic and Community Affairs, 22 Code of Alabama § 41-23-5(b).
8. The central function of the Alabama Department of Economic and Community Affairs is the administration and coordination of programs under which funds granted by the United States Government are distributed or awarded to Alabama citizens, firms, organiza tions, and agencies.
9. The duties, responsibilities, and purposes of the Alabama Department of Economic and Community Affairs are more fully set forth in the legislation which established it, 22 Code of Alabama ??41-23-1 et seq., as well as in the statutes establishing the agencies which were merged to form the Alabama Department of Economic and Community Affairs, and which are incorporated in 22 Code of Alabama § 41-23-1. Additional evidence of the Department's duties, responsibilities, and purposes are set forth in Executive Order 34, October 27, l980; Executive Order 7, April 11, l983; and Executive Order 8, May 9, l983, which are submitted as Joint Exhibits 4, 5, and 6, respectively.
10. The major programs in which the Department of Economic and Community Affairs is involved are described in the Alabama Depart ment of Economic and Community Affairs' 1984 Annual Report, which is submitted as Joint Exhibit 7. This Exhibit, at page 29, also sets forth the expenditures of the Alabama Department of Economic and Community Affairs for fiscal year l984. All of these monies, including monies used for the administration of the Department, were provided in the form of grants, awards, and other disbursements from the United States Government.
11. In addition to the Department of Economic and Community Affairs, there are a number of other agencies and departments within the executive branch of the Alabama state government. These agencies and departments include the Alabama Department of Correc tions; the Alabama Development Office; the Alabama Industrial
Development Advisory Board; the Alabama Department of Pensions and Security; and the Alabama Commission on the Aging and their duties, responsibilities, and purposes are set forth by state statutes at 12A Code of Alabama ??14-1-1 et seq.; 22 Code of Alabama § 41-9-200 et seq.; 22 Code of Alabama ??41-9-185 et seq.; 20 Code of Alabama ??38-2-1 et seq.; and 20 Code of Alabama ??38-3-1 et seq., respec tively.
12. The Council of State Governments publishes a directory of state officials entitled State Administrative Officials Classified by Function 1983-1984 (CSG Directory). This directory was last pub lished in l984. The "Foreword" on page v of the directory states that it provides "the names, numbers and addresses of state admini strative officials, listed by functional categories," and that this "information . . . came from hundreds of state officials." The section entitled "A Note on Use" on the same page states that the "names listed . . . were supplied by state officials who decided where to place administrative functions." Excerpts from this directory are submitted as Joint Exhibit 8.
13. A. The CSG Directory provides a listing on "Aging," which provides the name of the official directing the agency which "administers provisions of the Older Americans Act through comprehensive services and nutrition programs for the elderly." The Director of the Alabama Commission on Aging is listed under the heading for Alabama in this category.
13. B. The CSG Directory provides a listing on "Child Welfare," which provides the name of the official directing the agency which "supervises services to protect children from abuse, neglect and exploitation." The Director of the Bureau of Family and Children Services of the Alabama Department of Pensions and Security is listed under the heading for Alabama in this category.
13. C. The CSG Directory provides a listing on "Corrections," which provides the name of the official directing the agency which "controls and supervises adult prison inmates." The Commissioner of the Alabama Board of Corrections is listed under the heading for Alabama in this category.
13. D. The CSG Directory provides a listing on "Human Resources," which provides the name of the official directing the agency which "administers public assistance, medical care and social services; heads an umbrella human resources department." The Com missioner of the Alabama Department of Pensions and Security is listed under the heading for Alabama in this category.
13. E. The CSG Directory provides a listing on "Industrial Development," which provides the name of the official directing the agency which "assists new industry in locating in the state and assists established industry in the state to expand." The Director of the Alabama Office of Development is listed under the heading for Alabama in this category.
13. F. The CSG Directory provides a listing on "Social Services," which provides the name of the official directing the agency which "delivers services to children, the blind, the disabled and the elderly." The Commissioner of the Alabama Department of Pensions and Security is listed under the heading for Alabama in this category.
13. G. The CSG Directory provides a listing on "Welfare," which provides the name of the official directing the agency which "supervises administration of the federal Food Stamp Program, Aid to Families with Dependent Children, and Supplemental Security Income programs." The Commissioner of the Alabama Department of Pensions and Security is listed under the heading for Alabama in this category.
14. The National Association of State Development Agencies (NASDA) "was formed in l946 to provide a forum for directors of state economic development agencies . . . . Member agencies generally are state commerce departments, or other state govern ment offices with economic development responsibilities." Joint Exhibit 9(a). NASDA defines a state economic development agency as the agency "generally responsible for promoting economic growth within the state, primarily through the retention, expansion and attraction of business and industry." Id.
15. NASDA published a listing of state development directors in April 1985. Three officials are listed for Alabama, including the Director, Assistant Director, and Industrial Development Director of the Alabama Development Office. Joint Exhibit 9(b).
16. The Office of Mail Classification denied ADECA News' second-class application on May 8, l985. Joint Exhibit 10.
DISCUSSION
DMM § 422.31 provides exceptions to certain second-class mail requirements in authorizing second-class mail privileges for publi cations of the following types of state boards and agencies (and certain categories of institutions and organizations not pertinent to this proceeding):
* * *
c. A bulletin issued by a state board of health or a state industrial development agency.
d. A bulletin issued by a state conservation or fish and game agency or department.
e. A bulletin issued by a state board or department of public charities or corrections.
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Petitioner seeks second-class privileges for ADECA News as a publication of an agency performing diverse functions including those of several of the listed boards and agencies.
The boards, agencies, and organizations listed in DMM § 422.31, supra, follow the statutory provisions previously codified in former 39 U.S.C. § 4355. Section 4355 established exceptions to the general rule that second-class privileges are extended only to publications which can demonstrate reader demand. In construing § 422.31, there fore, it is appropriate to apply the rule of construction that if a statute specifies one exception to its general application, other exceptions are excluded; expressio unius est exclusio alterius. United States v. Jones, 567 F.2d 965, 967 (10th Cir. l967). Peti tioner has shown no contrary legislative intent with respect to former 39 U.S.C. § 4355 so as to preclude application of this rule.
Petitioner is not one of the boards, agencies or departments named in DMM § 422.31. None of the types of agencies combined to form ADECA when it was created is named in that regulation. In the State of Alabama there exist, separate and apart from ADECA, agencies of the kinds listed in § 422.31. Some of ADECA's acti vities are related to the functions of such agencies but ADECA's primary functions and responsibilities are not those of such agencies.
CONCLUSIONS OF LAW
1. The ADECA News does not meet the eligibility requirements for second-class entry under DMM § 422.3 because its publisher is not an institution, agency, board, or department of the types named in that regulation.
2. The decision of the Director, Office of Mail Classification, denying the second-class application for ADECA News was correct. The decision is affirmed.