Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Rules and Regulations 47833 

1Request of the United States Postal Service to 

Add Express Mail Contract to Competitive Product 

List and Notice of Establishment of Rates and Class 

Not of General Applicability, July 21, 2008 

(Request). 

2The draft Mail Classification Schedule (MCS) 

remains under review. The Commission anticipates 

providing interested persons an opportunity to 

comment on the draft MCS in the near future. 

3Commission Information Request No. 1, July 29, 

2008. 

4See Notice of Response of the United States 

Postal Service to Commission Information Request 

No. 1, August 4, 2008. 

5Comments of United Parcel Service in Response 

to Order Concerning Modification of the Mail 

Classification Schedule and Prices Under Express 

Mail Negotiated Service Agreement, July 31, 2008 

(UPS Comments). 

6Public Representative Comments in Response to 

United States Postal Service Request to Modify the 

Mail Classification Schedule and Prices Under 

Express Mail Negotiated Service Agreement, July 

31, 2008 (Public Representative Comments). 

7 Initial Comments of David B. Popkin, July 31, 

2008 (Popkin Comments). Popkin also filed a Letter 

of Intervention and Request for Information. Letter 

from David B. Popkin to Steven W. Williams, 

Notice of Intervention and Request for Information, 

July 30, 2008 (Letter). The Commission notes that 

notices of intervention are not necessary for the 

filing of comments in these types of proceedings 

and are, in fact, discouraged. Where appropriate, 

motions may be filed under Commission rule 

3001.21. 

Issued in Washington, DC, on this 11th day 

of August 2008. 

Vincent K. Snowbarger, 

Deputy Director for Operations, Pension 

Benefit Guaranty Corporation. 

[FR Doc. E8–19061 Filed 8–14–08; 8:45 am] 

BILLING CODE 7709–01–P 

POSTAL REGULATORY COMMISSION 

39 CFR Part 3020 

[Docket No. MC2008–5; Order No. 94] 

Administrative Practice and Procedure, 

Postal Service 

AGENCY: Postal Regulatory Commission. 

ACTION: Final rule. 

SUMMARY: The Commission is adding 

the Postal Service’s Express Mail 

Contract 1 to the competitive product 

list. This action is consistent with 

changes in a recent law governing postal 

operations. Re-publication of the lists of 

market dominant and competitive 

products is also consistent with new 

requirements in the law. 

DATES: Effective August 15, 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: 

I. Background 

On July 21, 2008, the Postal Service 

filed a request pursuant to 39 U.S.C. 

3642 and 39 CFR 3020.30, et seq. to 

modify the Mail Classification Schedule 

by adding Express Mail Contract 1 to the 

competitive product list. The Postal 

Service asserts that Express Mail 

Contract 1 is a competitive product ‘‘not 

of general applicability’’ within the 

meaning of 39 U.S.C. 3632(b)(3).1 A 

redacted version of the Governors’

Decision establishing the price and 

classification and a certification of the 

Governors’ vote is included as 

Attachment A to the filing (Attachment 

A). The requested changes in the Mail 

Classification Schedule product list are 

included in the filing as Attachment B 

with the new product shown in 

brackets.2 The statement of supporting 

justification required by 39 CFR 3020.32 

is included as Attachment C to the filing 

(Attachment C). 

In the same July 21, 2008 filing, the 

Postal Service gives notice, pursuant to 

39 U.S.C. 3632(b)(3) and 39 CFR 3015.5, 

that the Governors have established 

prices and classifications not of general 

applicability for Express Mail Contract 

1. Request at 2. 

In support of its Request, the Postal 

Service has also filed materials under 

seal, including an unredacted version of 

an explanation and justification in the 

Governors’ Decision and an unredacted 

analysis. Also filed under seal are the 

cost and revenue data and the 

certification of compliance with 39 

U.S.C. 3633(a)(1), (2), and (3). The 

Postal Service asserts ‘‘that the contract, 

related financial information, the 

customer’s name and the portions of the 

Governors’ Decision and accompanying 

analysis that provides prices, terms, and 

conditions should remain confidential.’’

Id. 

After its initial review, the 

Commission sought additional 

information with respect to several 

issues in this case. Toward that end, it 

issued Commission Information Request 

No. 1 on July 29, 2008.3 The Postal 

Service promptly responded providing 

the requested clarifying information on 

August 4, 2008.4

As noted above, the Postal Service 

filing in this docket was made pursuant 

to rule 3015.5 and rule 3020.30 et seq. 

As a consequence, the Commission will 

review the filing under both rule 3015 

and part 3020, subpart B. 

II. Comments 

Comments were filed by United 

Parcel Service (UPS),5 the Public 

Representative,6 and David B. Popkin.7

UPS urges the Commission to require 

public disclosure of the proposed 

contracts subject to adequate safeguards 

to allow meaningful public review. It 

believes that if interested parties are 

denied access to this information, the 

complaint process under section 3662 

will be largely rendered a nullity. UPS 

Comments at 2. 

Along the same lines, Popkin 

expresses concern that because the 

Postal Service’s filing was largely under 

seal, the public cannot comment 

meaningfully on it. Popkin Comments at 

2. In addition, Popkin offers several 

observations about the filing in this case 

and waiver of signature upon delivery. 

Id. at 3. 

The Public Representative comments 

on several aspects of the Postal Service’s 

filings in this case including (1) 

confidentiality; (2) pricing, cost 

coverage, and contribution; and (3) the 

specific agreement. With respect to 

confidentiality, the Public 

Representative argues that the Postal 

Service should justify the limits of all 

confidentiality requests to comport with 

the spirit of Federal Rules of Civil 

Procedure 26(c) and the Freedom of 

Information Act. Public Representative 

Comments at 3. With respect to pricing, 

cost coverage and contribution, the 

Public Representative acknowledges 

that the pricing in the negotiated service 

agreement (NSA) comports with the 

provisions of title 39. With respect to 

the specific agreement, the Public 

Representative believes that it promotes 

an increased Express Mail volume, 

specifically pieces that are less costly to 

process. Id. at 5. 

III. Commission Analysis 

A. Statutory Requirements 

The statutory responsibility of the 

Commission, in this instance, is to 

assign a new product to either the 

market dominant list or the competitive 

product list. 39 U.S.C. 3642. As part of 

this responsibility, the Commission also 

will preliminarily review the proposal 

for compliance with the requirements of 

the Postal Accountability and 

Enhancement Act (PAEA) of 2006. For 

proposed competitive products, this 

includes a review of the provisions 

applicable to rates for competitive 

products. 39 U.S.C. 3633. 

The Postal Service contends that 

adding the Express Mail Contract 1 

product will result in processing 

Express Mail pieces that are less costly 

for the Postal Service than the average 

Express Mail piece. See Request, 

Attachment A. It believes that its 


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47834 Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Rules and Regulations 

8See Public Representative Comments at 2. 

financial analysis shows that these cost 

savings can be accomplished while 

ensuring that the contract covers its 

attributable costs, does not result in 

subsidization of competitive products 

by market dominant products, and 

increases contribution from competitive 

products. Id.; Request, Attachment C, at 

1. 

The Commission has reviewed the 

financial analysis provided under seal 

that accompanies the agreement as well 

as the comments filed by interested 

persons. Based on the information 

provided, the Commission finds that the 

proposed product submitted should 

cover its attributable costs (39 U.S.C. 

3633(a)(2)); should not lead to the 

subsidization of competitive products 

by market dominant products (39 U.S.C. 

3633(a)(1)), and should have a positive 

effect on competitive products’

contribution to institutional costs (39 

U.S.C. 3633(a)(3)). Thus, a preliminary 

review of the proposed Express Mail 

Contract 1 product indicates that it 

comports with the provisions applicable 

to rates for competitive products. 

In determining whether to assign the 

Express Mail contract as a product to 

the market dominant product list or the 

competitive product list the 

Commission must consider whether 

[T]he Postal Service exercises sufficient 

market power that it can effectively set the 

price of such product substantially above 

costs, raise prices significantly, decrease 

quality, or decrease output, without risk of 

losing a significant level of business to other 

firms offering similar products. 39 U.S.C. 

3642(b)(1). If this is the case, the product will 

be categorized as market dominant. The 

competitive category of products shall 

consist of all other products. 

In Order No. 43, the Commission 

issued regulations establishing a 

modern system of rate regulation, 

including a list of competitive products. 

PRC Order No. 43, Order Establishing 

Ratemaking Regulations for Market 

Dominant and Competitive Products, 

October 29, 2007, paras. 3061, 4013. 

Among other things, the Commission 

determined that each NSA would 

initially be classified as a separate 

product. The specific Express Mail 

Contract 1 filed in this docket will be 

classified as a new product. 

The Commission is further required to 

consider the availability and nature of 

enterprises in the private sector engaged 

in the delivery of the product, the views 

of those that use the product, and the 

likely impact on small business 

concerns. 39 U.S.C. 3642(b)(3). 

The Postal Service asserts that its 

bargaining position is constrained by 

the existence of other shippers who can 

provide similar services. Thus, the 

market precludes the Postal Service 

from taking unilateral action to increase 

prices without the risk of losing volume 

to private companies. Request, 

Attachment C, at 2–3. The Postal 

Service also contends that the Postal 

Service may not decrease quality or 

output without risking the loss of 

business to competitors that offer 

similar expedited delivery services. Id. 

at 2. It further states that the user/NSA 

partner supports the addition of the 

contract to the product list to effectuate 

the negotiated contractual terms. Id. at 

3. Finally, the Postal Service states that 

due to the fact that Express Mail 

requires a substantial infrastructure to 

support a national network, large 

shippers serve the market under 

consideration. Accordingly, the Postal 

Service is unaware of any small 

business concerns that could offer 

comparable service for this customer. Id. 

No commenter opposes the proposed 

regulatory classification of the Express 

Mail Contract 1 as competitive, and no 

late-filed comments were received.8

Having considered the statutory 

requirements, the argument put forth by 

the Postal Service, and the public 

comment, the Commission finds that 

Express Mail Contract 1 is appropriately 

classified as a competitive product and 

should be added to the competitive 

product list. The revisions to the 

competitive product list are shown 

below the signature of this Order, and 

shall become effective upon publication 

in the Federal Register. 

B. Updating the Mail Classification 

Schedule 

The Express Mail contract contains a 

provision for early termination of the 

contract. The Postal Service shall 

promptly notify the Commission of an 

early termination, but in no event later 

than the actual termination date. The 

Commission then will remove the 

contract from the Mail Classification 

Schedule at the earliest possible 

opportunity. 

C. Confidentiality 

The Commission is aware that the 

treatment of information as confidential 

is a sensitive issue. The Postal Service, 

the Public Representative, United Parcel 

Service, and Popkin all express valid 

concerns with respect to documents 

submitted under seal. Very shortly, the 

Commission will address these issues 

on a broader level and establishing 

procedures to determine the degree of 

confidentiality to be accorded to this 

type of information. Interested persons 

will have an opportunity to comment on 

appropriate procedures governing the 

treatment of confidential information 

filed by the Postal Service. 

It is Ordered: 

1. The Express Mail Contract 1 will be 

added to the competitive product list as 

a separate product under Negotiated 

Service Agreements, Domestic as 

Express Mail Contract 1 (MC2008–5). 

2. The Secretary shall arrange for 

publication of the amended product list 

in the Federal Register . 

List of Subjects in 39 CFR Part 3020 

Administrative practice and 

procedure, Postal Service. 

By the Commission. 

Steven W. Williams, 

Secretary. 

■ For the reasons stated in the preamble, 

under the authority at 39 U.S.C. 503, the 

Postal Regulatory Commission amends 

39 CFR part 3020 as follows: 

■ 1. The authority citation for part 3020 

continues to read as follows: 

Authority: 39 U.S.C. 503; 3622; 3631; 3642; 

3682. 

■ 2. Revise Parts A and B of Appendix 

A to Subpart A of Part 3020—Mail 

Classification Schedule to read as 

follows: 

Appendix A to Subpart A of Part 

3020—Mail Classification Schedule 

* * * * * 

Part A—Market Dominant Products—1000 

Market Dominant Product List 

First-Class Mail 

Single-Piece Letters/Postcards 

Bulk Letters/Postcards 

Flats 

Parcels 

Outbound Single-Piece First-Class Mail 

International 

Inbound Single-Piece First-Class Mail 

International 

Standard Mail (Regular and Nonprofit) 

High Density and Saturation Letters 

High Density and Saturation Flats/Parcels 

Carrier Route 

Letters 

Flats 

Not Flat-Machinables (NFMs)/Parcels 

Periodicals 

Within County Periodicals 

Outside County Periodicals 

Package Services 

Single-Piece Parcel Post 

Inbound Surface Parcel Post (at UPU rates) 

Bound Printed Matter Flats 

Bound Printed Matter Parcels 

Media Mail/Library Mail 

Special Services 

Ancillary Services 

International Ancillary Services 

Address List Services 

Caller Service 

Change-of-Address Credit Card 

Authentication 

Confirm 

International Reply Coupon Service 


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Federal Register / Vol. 73, No. 159 / Friday, August 15, 2008 / Rules and Regulations 47835 

International Business Reply Mail Service 

Money Orders 

Post Office Box Service 

Negotiated Service Agreements 

HSBC North America Holdings Inc. 

Negotiated Service Agreement 

Bookspan Negotiated Service Agreement 

Bank of America Corporation Negotiated 

Service Agreement 

The Bradford Group Negotiated Service 

Agreement 

1001 Market Dominant Product 

Descriptions 

Part B—Competitive Products—2000 

Competitive Product List 

Express Mail 

Express Mail 

Outbound International Expedited Services 

Inbound International Expedited Services 

Inbound International Expedited Services 1 

(CP2008–7) 

Priority Mail 

Priority Mail 

Outbound Priority Mail International 

Inbound Air Parcel Post 

Parcel Select 

Parcel Return Service 

International 

International Priority Airlift (IPA) 

International Surface Airlift (ISAL) 

International Direct Sacks—M-Bags 

Global Customized Shipping Services 

Inbound Surface Parcel Post (at non-UPU 

rates) 

International Money Transfer Service 

International Ancillary Services 

Special Services 

Premium Forwarding Service 

Negotiated Service Agreements 

Domestic 

Express Mail Contract 1 (MC2008–5) 

Outbound International 

Global Expedited Package Services (GEPS) 

Contracts 

GEPS 1 (CP2008–5) 

Global Plus Contracts 

Global Plus 1 (CP2008–9 and CP2008–10) 

* * * * * 

[FR Doc. E8–18872 Filed 8–14–08; 8:45 am] 

BILLING CODE 7710–FW–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–TX–0027; FRL–8704–

8] 

Approval and Promulgation of Air 

Quality Implementation Plans; Texas; 

Revisions to Chapter 117 and 

Emission Inventories for the Dallas/ 

Fort Worth 8-Hour Ozone 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is approving 

portions of revisions to the State 

Implementation Plan (SIP) submitted by 

the State of Texas on May 13, 2005, to 

meet the 5% Increment of Progress (IOP) 

requirement for the Dallas/Fort Worth 

(DFW) nonattainment area. EPA is not 

taking action on the 5% IOP plan in this 

rulemaking. EPA is approving the 2002 

base year inventory for the DFW 8-hour 

ozone nonattainment area. EPA is also 

approving emissions reductions from 

energy efficiency measures 

implemented within the DFW 8-hour 

ozone nonattainment area, and revisions 

to 30 TAC, Chapter 117, Control of Air 

Pollution From Nitrogen Compounds, 

concerning stationary reciprocating 

internal combustion (IC) engines 

operating within the DFW 8-hour ozone 

nonattainment area. EPA is also 

approving into the SIP a federal consent 

decree and subsequent amendments 

thereto concerning the Alcoa Rockdale 

plant in Milam County. These actions 

result in emissions reductions in the 

DFW 8-hour ozone nonattainment area 

and are taken in accordance with 

section 110 and part D of the Clean Air 

Act (the Act) and EPA’s regulations. 

DATE: This final rule is effective on 

September 15, 2008. 

ADDRESSES: EPA has established a 

docket for this action under Docket No. 

EPA–R06–OAR–2005–TX–0027. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal, which is part of 

the EPA record, is also available for 

public inspection at the State Air 

Agency listed below during official 

business hours by appointment: Texas 

Commission on Environmental Quality, 

Office of Air Quality, 12124 Park 35 

Circle, Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Carrie Paige, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–6521; fax number 

214–665–7263; e-mail address 

paige.carrie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’

and ‘‘our’’ means EPA. 

Outline 

I. Background 

II. What Action Is EPA Taking? 

III. What Comments Did EPA Receive on the 

August 22, 2006 Proposed Rulemaking 

for DFW? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

On August 22, 2006, EPA proposed 

approval of the 5% Increment of 

Progress (IOP) plan for the nine counties 

that comprise the DFW 8-hour ozone 

nonattainment area; the 2002 base year 

emissions inventory (EI); the 2007 motor 

vehicle emissions budget (MVEB); and 

related control measures, including a 

federal consent decree concerning an 

Alcoa plant in Rockdale, Milam County, 

dated April 9, 2003; energy efficiency 

measures implemented within the DFW 

8-hour ozone nonattainment area; and 

revisions to 30 TAC, Chapter 117, 

Control of Air Pollution From Nitrogen 

Compounds, concerning stationary 

reciprocating IC engines operating 

within the DFW 8-hour ozone 

nonattainment area. 

The August 22, 2006, proposal 

provides a detailed description of the 

revisions and the rationale for EPA’s 

proposed actions, together with a 

discussion of the opportunity to 

comment. The public comment period 

for these actions closed on September 

21, 2006. See the Technical Support 

Documents (TSDs) or our proposed 

rulemaking at 71 FR 48870 for more 

information. 

On December 22, 2006, the U.S. Court 

of Appeals for the District of Columbia 

Circuit issued a decision in response to 

challenges to EPA’s Phase 1 

Implementation Rule for the 8-hour 

Ozone Standard (Phase 1 Rule), granting 

challenges to certain provisions of the 

rule and denying other challenges (69 

FR 23951, April 30, 2004). South Coast 

Air Quality Mgmt. Dist. v. EPA, 472 F.3d 

882 (DC Cir. 2006). Because of this 

ruling, EPA decided to delay taking 


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