Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 46339 

1The May 30, 2008 correspondence includes a 

copy of a negotiated service agreement proffered by 

Capital One to the Postal Service. 

5.0 Alternatives to the Proposed 

Action 

The staff considered denial of Rio 

Algom’s request (i.e., the no action 

alternative) as the only reasonable 

alternative to the proposed action. 

Denial of the Licensee’s request would 

result in no protection from the 

spreading of contaminants from the 

capped mill tailing cells or the 

contaminants in Ponds 4, 5, and 6 from 

potential flooding in the Arroyo del 

Puerto floodplain. 

6.0 Agencies and Persons Consulted 

This EA was prepared by the NRC 

staff, and coordinated with the NMDEQ. 

NRC staff provided a draft of its EA to 

NMDEQ for review. NMDEQ had 

multiple comments on the Draft EA and 

the overall design of the proposed 

channel. Several discussions were held 

with the staff of NMDEQ and their 

comments were incorporated into the 

Draft EA and the technical evaluation 

report which would accompany the 

license amendment. 

A cultural resource survey was 

conducted on the archeological site 

discovered during the site inspection, 

and concluded that no cultural resource 

sites are present, and that the area is 

ineligible for inclusion in the National 

Register. Rio Algom sent a letter to the 

State of New Mexico Department of 

Cultural Affairs (NMDCA), Historic 

Preservation Division (HPD), notifying 

them of the archeological site and the 

redesign of the channel and 1000-year 

(flood control) berm to avoid disturbing 

the area. The NRC staff contacted the 

NMDCA, HPD, which stated that the site 

was eligible for inclusion in the 

National Register, but concurred with 

the proposed realignment of the channel 

project to avoid the archeological site, 

and stated that, as long as the site is 

avoided, the project would not affect 

historic properties. The NRC staff has 

determined that no further consultation 

would be required under Section 106 of 

the National Historic Preservation Act. 

The NRC staff has determined that the 

proposed action would not affect any 

federally- or state-listed (threatened and 

endangered) species or their critical 

habitat. Therefore, no further 

consultation would be required under 

Section 7 of the Endangered Species 

Act. The NRC staff advised the Licensee 

to contact the U.S. Army Corps of 

Engineers (USACE) to inquire if this 

project would require a Section 404 

(Clean Water Act) permit. The NRC staff 

contacted the USACE about the Section 

404 permit and they requested that NRC 

send the technical memoranda from the 

licensee, the concurrence from NMDCA, 

HPD on the proposed channel design, 

and the Federal Register Notice (FRN) 

with the EA (See ADAMS 

ML081890038). The NRC staff sent the 

technical memorandums and 

concurrence from NMDCA, HPD to the 

USACE and will send the FRN when it 

is finalized. The USACE will then 

decide if a Section 404 permit is 

required. 

7.0 Conclusion 

The NRC staff prepared this EA in 

support of the proposed action. Based 

on the analysis contained in this EA, the 

staff concluded that there are no 

environmental impacts from the 

proposed action, and that the 

preparation of an Environmental Impact 

Statement is not warranted. 

Accordingly, the NRC determined that a 

Finding of No Significant Impact is 

appropriate. 

III. Further Information 

For further details with respect to the 

proposed action, see the Licensee’s 

letter and report dated October 24, 2007 

(See ADAMS ML073060379, 

ML073060380, ML073060381, 

ML073060382, and ML073060383), a 

report from the Licensee dated January 

31, 2008 (See ADAMS ML080350250, 

ML080350251, ML080350252, 

ML080350254, and ML080350259), a 

report from the Licensee dated March 

21, 2008 (See ADAMS ML080990026, 

ML080990027, ML080990034, and 

ML080990035), a technical 

memorandum from the Licensee 

dated May 8, 2008 (See ADAMS 

ML081280101), and a revised technical 

memorandum from the Licensee dated 

May 21, 2008 (See ADAMS 

ML081490526), all of which are 

available for public inspection, and can 

be copied for a fee, at the U.S. Nuclear 

Regulatory Commission’s Public 

Document Room (PDR), located at One 

White Flint North, 11555 Rockville Pike 

(first floor), Rockville, Maryland, 20852. 

The NRC maintains an Agency-wide 

Documents Access and Management 

System (ADAMS), which provides text 

and image files of NRC’s public 

documents. These documents may be 

accessed through the NRC’s Public 

Electronic Reading Room on the internet 

at http://www.nrc.gov. 

Persons who do not have access to 

ADAMS or who have problems in 

accessing the documents located in 

ADAMS may contact the PDR reference 

staff at 1–800–397–4209, 301–415–4737 

or by e-mail at pdr@nrc.gov. 

Dated at Rockville, Maryland, this 1st day 

of August, 2008. 

For The Nuclear Regulatory Commission. 

Rebecca Tadesse, 

Acting Deputy Director, Decommissioning 

and Uranium Recovery, Licensing Directorate, 

Division of Waste Management, and 

Environmental Protection, Office of Federal 

and State Materials and Environmental 

Management Programs. 

[FR Doc. E8–18289 Filed 8–7–08; 8:45 am] 

BILLING CODE 7590–01–P 

POSTAL REGULATORY COMMISSION 

[Docket No. C2008–3; Order No. 92] 

Complaint of Capital One Services, Inc. 

AGENCY: Postal Regulatory Commission. 

ACTION: Notice. 

SUMMARY: The Commission has initiated 

a case to address allegations of undue 

discrimination and other issues raised 

by Capital One Services, Inc. (Capital 

One) in a formal complaint. The 

allegations stem from Capital One’s 

interest in obtaining a rate agreement 

from the Postal Service on terms that are 

the same as or similar to those another 

major mailer has received. Accepting 

the case will provide an opportunity for 

review of pertinent issues. 

DATES: Notices of intervention are due 

on August 13, 2008. A prehearing 

conference will be held on August 14, 

2008. 

ADDRESSES: Submit comments 

electronically via the Commission’s 

Filing Online system at http:// 

www.prc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Sharfman, General Counsel, 

202–789–6820 and 

stephen.sharfman@prc.gov. 

SUPPLEMENTARY INFORMATION: The 

Complaint of Capital One Services, Inc. 

Regarding Discrimination and Other 

Violations of Law by the United States 

Postal Service (Complaint) was filed on 

June 19, 2008. The Complaint asserts 

several claims concerning Capital One’s 

unsuccessful attempts to enter into a 

negotiated service agreement similar to 

the agreement that the Postal Service 

recently commenced with Bank of 

America. In support of the Complaint, 

Capital One filed the Declaration of Ben 

Lamm, and correspondence between 

Capital One and the Postal Service 

dated May 15, 2008, May 27, 2008, May 

30, 2008, and June 4, 2008.1

The Answer of the United States 

Postal Service (Answer) in response to 

the Complaint was filed on July 21, 


pwalker on PROD1PC71 with NOTICES
46340 Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 

2See PRC Op. MC2007–1. The Bank of America 

negotiated service agreement requires Bank of 

America to implement several advanced mailing 

practices and provides Bank of America discounts 

for proven performance improvements relative to 

six negotiated baselines. 

3Capital One argues that requiring Capital One to 

use mailer-specific baselines in place of the Bank 

of America baselines (which were developed from 

dated industry averages) radically alters the 

incentives (and implicitly the agreement) available 

to Capital One. Complaint at 16. 

4 Id. at 3. See also Docket No. MC2007–4, Order 

Regarding Limitation of Issues and Establishing 

Procedural Schedule, September 7, 2007, at 2 

referencing Docket No. RM2003–5, PRC Order No. 

1391, February 11, 2004, at 49–51. 

2008, together with a Motion of the 

United States Postal Service to Dismiss 

Complaint (Motion to Dismiss). On July 

28, 2008, the Opposition of Capital One 

Services, Inc. to Motion to Dismiss of 

the United States Postal Service 

(Opposition to Dismiss) was filed in 

response to this motion. 

The Commission finds that the 

Complaint raises material issues of fact 

and law, and shall begin proceedings to 

hear the issues involved. 39 U.S.C. 

3662(b). The Motion to Dismiss does not 

persuade the Commission that Capital 

One should not be provided an 

opportunity to present evidence and 

argument in support of its Complaint, 

and thus, the Motion to Dismiss is 

denied. 

I. The Capital One Complaint 

Capital One asserts that it has 

repeatedly approached the Postal 

Service in attempts to obtain a 

negotiated service agreement that is 

similar to the agreement that the Postal 

Service entered with Bank of America 

Corporation.2 It alleges that the Postal 

Service refuses to enter into a similar 

agreement and insists that any 

agreement with Capital One would have 

to include mailer-specific baselines and 

reduced per-piece discounts.3

Complaint at 3. Capital One contends 

that because the Postal Service insists 

on an agreement incorporating mailerspecific baselines and reduced per-piece 

discounts, Capital One is not being 

offered an agreement on similar terms to 

Bank of America. 

By denying Capital One a negotiated 

service agreement under the same terms, 

Capital One contends that (1) the Postal 

Service has unduly or unreasonably 

discriminated among users of the mails 

and granted an undue or unreasonable 

preference in violation of 39 U.S.C. 

403(c); (2) the Postal Service has created 

a special classification not available on 

public and reasonable terms to similarly 

situated mailers, which creates 

unreasonable harm to the marketplace 

in violation of 39 U.S.C. 3622(c)(10); 

and (3) the Postal Service has violated 

Commission rules 3010.40 et seq. 

because the rules incorporate by 

reference the legal standards of 39 

U.S.C. 3622(c)(10). Id. at 17–19. 

Capital One contends the Postal 

Service should not be allowed to deny 

an agreement to Capital One on the 

same terms granted to Bank of America. 

Capital One also argues the Postal 

Service should not be allowed to contest 

whether the Bank of America agreement 

is a pay-for-performance agreement, 

arguing that this was fully litigated and 

resolved in Docket No. MC2007–1. Id. at 

19–20. 

Capital One requests relief in the form 

of a ruling that the Postal Service has 

violated 39 U.S.C. 403(c), 39 U.S.C. 

3622(c)(10), and/or Commission rules 

3010.40 et seq. It requests a ruling 

stating that Capital One is entitled to an 

agreement with the same substantive 

terms, or at a minimum, includes the 

same financial incentives offered to 

Bank of America. It requests any other 

relief deemed appropriate, including but 

not limited to the Commission ordering 

approval of a new product (agreement) 

substantively identical to the Bank of 

America agreement, without further 

need for negotiations between the Postal 

Service and Capital One. Id. at 22. 

II. The Postal Service Motion to Dismiss 

The Postal Service argues that the 

Complaint fails to establish that the 

Postal Service unduly discriminated 

against Capital One or otherwise 

violated title 39. Motion to Dismiss at 2–

4. In support of this argument, the 

Postal Service asserts that it has long 

been established that functional 

equivalence does not mean identical, 

and that all agreements, including 

functionally equivalent agreements, are 

tailored to each partner’s unique 

situation and to how the agreement then 

benefits the Postal Service. It quotes 

Commission holdings that a proposed 

functionally equivalent agreement must 

primarily rest on the same substantive 

functional elements as the identified 

baseline agreement, and must provide a 

comparable benefit to the Postal 

Service.4 It argues that an analysis of 

functional elements would allow for a 

far wider range of functionally 

equivalent agreements than Capital 

One’s argument allows. It concludes 

that the Postal Service’s refusal to 

approve just one example of a 

functionally equivalent agreement as 

presented by Capital One does not 

constitute an undue or unreasonable 

preference or create a special 

classification not available on public 

and reasonable terms to similarly 

situated mailers. 

The Postal Service further contends 

that the Complaint is premature because 

the parties never engaged in, or 

exhausted, reasonable efforts to 

negotiate a functionally equivalent 

agreement. Id. at 4–7. It asserts that the 

Postal Service was and remains 

prepared to continue negotiations with 

Capital One. 

In response, Capital One contends 

that reference to its Complaint at 3 and 

12–15, and the Opposition to Dismiss at 

9–12, present ample indications that 

despite its extended good faith efforts to 

negotiate, additional discussions would 

be futile. 

III. Commission Analysis 

The Postal Service asserts that Capital 

One fails to establish undue 

discrimination. Id. at 2–4. Capital One 

discusses the importance of the 

opportunity to bring complaints under 

the Postal Accountability and 

Enhancement Act (PAEA) and suggests 

a standard for the legal sufficiency of 

complaints similar to the standard set 

forth in the Federal Rules of Civil 

Procedure. Opposition to Dismiss at 4–

5. The Commission has previously 

applied a ‘‘colorable claim’’ standard. 

See PRC Order No. 1307 at 9. The 

Commission finds this an applicable 

standard to apply under section 3662. 

Under this standard, Capital One does 

not have to establish undue 

discrimination as argued in the Motion 

to Dismiss; it only has to establish a 

colorable claim raising material issues 

of fact or law for the Commission to 

initiate a proceeding. Once a colorable 

claim is established, the complainant is 

provided an opportunity to develop its 

case, and the respondent is given an 

opportunity to refute the allegations. 

Capital One contends that it has not 

been able to obtain a negotiated service 

agreement with the Postal Service on 

similar terms to the agreement that the 

Postal Service has with Bank of 

America. Complaint at 3, para. 6. The 

Postal Service appears to acknowledge 

that any agreement with Capital One 

must use mailer-specific baselines, and 

that the discounts will have to be 

reduced to reflect that Capital One was 

not the first adopter. See Complaint at 

15, para. 42 and Answer at 7, para. 42. 

Capital One alleges this constitutes 

undue or unreasonable discrimination 

in violation of 39 U.S.C. 403(c). 

The Postal Service argues that 

negotiations have not been given an 

opportunity to run their course. Motion 

to Dismiss at 4–7. Capital One contends 

that negotiations are at a standstill. 

Opposition to Dismiss at 9–12. 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices 46341 

The Commission finds that this 

exchange raises issues of both law and 

fact relevant to whether or not the 

actions, or inactions, of the Postal 

Service rise to the level of undue or 

unreasonable discrimination among 

users of the mails, or to the granting of 

undue or unreasonable preferences to 

any such users in violation of 39 U.S.C. 

403(c). 

The pleadings raise several other 

mixed issues of law and fact. These 

include whether Capital One and Bank 

of America are ‘‘similarly situated,’’

what constitutes a ‘‘functionally 

equivalent’’ agreement in this situation, 

and what, if any, harm Capital One has 

or will incur. 

Capital One contends that because the 

Postal Service only addresses one of the 

six claims presented by Capital One, the 

claims that were not addressed are 

properly before the Commission. Id. at 

14–15. For example, Capital One raises 

claims concerning the factor of the 

PAEA that encourages special 

classifications, available on public and 

reasonable terms to similarly situated 

mailers, which do not cause 

unreasonable harm to the marketplace. 

See 39 U.S.C. 3622(c)(10). The Postal 

Service does not specifically address 

these claims other than offering a 

denial. Motion to Dismiss at 3. The 

Commission shall hear all issues 

presented by the Complaint. 

IV. Opportunity for Intervention 

Any interested person may file a 

notice of intervention, consistent with 

the Commission’s rules of practice, as a 

full or limited participant. See 39 CFR 

3001.20 and 3001.20a. The notice of 

intervention shall be filed using the 

Internet (Filing Online) at the 

Commission’s Web site (http:// 

www.prc.gov), unless a waiver is 

obtained for hard copy filing. See 39 

CFR 3001.9(a) and 3001.10(a). Notices of 

intervention are due no later than 

August 13, 2008. 

V. Discovery 

Capital One, the Postal Service, and 

the Public Representative may begin 

discovery immediately. Discovery may 

begin upon intervention by others. See 

39 CFR 3001.25–28. 

VI. Prehearing Conference 

A prehearing conference is scheduled 

for August 14, 2008, at 2:30 p.m. in the 

Commission’s hearing Room. Capital 

One shall be prepared to discuss any 

additional time needed for discovery, 

and the time needed to prepare to 

present its case. In light of the 

representations made as to the potential 

for further negotiations (Motion to 

Dismiss at 6), the parties are encouraged 

to search for common ground and report 

on any progress during the prehearing 

conference. 

VII. Representation of the General 

Public 

Pursuant to 39 U.S.C. 505, E. Rand 

Costich is appointed to serve as officer 

of the Commission (Public 

Representative) to represent the 

interests of the general public in the 

above-captioned docket. 

It is Ordered 

1. The Commission finds that the 

Complaint of Capital One Services, Inc., 

Regarding Discrimination and Other 

Violations of Law by the United States 

Postal Service, filed June 19, 2008, 

raises material issues of fact or law and 

shall begin proceedings in this 

Complaint. 

2. The Motion of the United States 

Postal Service to Dismiss Complaint, 

filed July 21, 2008, is denied. 

3. The Commission will sit en banc in 

this proceeding. 

4. The deadline for filing notices of 

intervention is August 13, 2008. Notices 

shall indicate whether the intervening 

party intends to participate in the 

hearing and the nature of that 

participation. 

5. A prehearing conference will be 

held in the Commission’s hearing Room 

on August 14, 2008, at 2:30 p.m. 

6. The Commission appoints E. Rand 

Costich as Public Representative to 

represent the interests of the general 

public in this proceeding. 

7. The Secretary shall arrange for 

publication of this order in the Federal 

Register. 

By the Commission. 

Steven W. Williams, 

Secretary. 

[FR Doc. E8–18292 Filed 8–7–08; 8:45 am] 

BILLING CODE 7710–FW–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Sunshine Act Meeting 

Notice is hereby given, pursuant to 

the provisions of the Government in the 

Sunshine Act, Public Law 94–409, that 

the Securities and Exchange 

Commission will hold a Closed Meeting 

on August 5, 2008 at 5 p.m. 

Commissioners, Counsel to the 

Commissioners, the Secretary to the 

Commission, and recording secretaries 

will attend the Closed Meeting. Certain 

staff members who have an interest in 

the matters also may be present. 

The General Counsel of the 

Commission, or his designee, has 

certified that, in his opinion, one or 

more of the exemptions set forth in 5 

U.S.C. 552b(c)(5), (7), 9(B) and (10) and 

17 CFR 200.402(a)(5), (7), 9(ii) and (10), 

permit consideration of the scheduled 

matters at the Closed Meeting. 

Commissioner Casey, as duty officer, 

voted to consider the items listed for the 

Closed Meeting in closed session, and 

determined that no earlier notice thereof 

was possible. 

The subject matter of the Closed 

Meeting scheduled for August 5, 2008 

will be: Institution and settlement of 

injunctive actions; and other matters 

related to enforcement proceedings. 

At times, changes in Commission 

priorities require alterations in the 

scheduling of meeting items. 

For further information and to 

ascertain what, if any, matters have been 

added, deleted or postponed, please 

contact: 

The Office of the Secretary at (202) 

551–5400. 

Dated: August 5, 2008. 

Florence E. Harmon, 

Acting Secretary. 

[FR Doc. E8–18394 Filed 8–7–08; 8:45 am] 

BILLING CODE 8010–01–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of proposed priorities. 

SUMMARY: As part of its statutory 

authority and responsibility to analyze 

sentencing issues, including operation 

of the federal sentencing guidelines, and 

in accordance with Rule 5.2 of its Rules 

of Practice and Procedure, the 

Commission is seeking comment on 

possible priority policy issues for the 

amendment cycle ending May 1, 2009. 

DATES: Public comment should be 

received on or before September 8, 

2008. 

ADDRESSES: Send comments to: United 

States Sentencing Commission, One 

Columbus Circle, NE., Suite 2–500, 

South Lobby, Washington, DC 20002–

8002, Attention: Public Affairs-Priorities 

Comment. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, Telephone: (202) 502–4590. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 


pwalker on PROD1PC71 with NOTICES