New Competitive Postal Product, 34375-34376 [E9-16584]

Download as PDF Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Notices 101(d) and 403(c), unless the allegations otherwise fail to state a colorable claim.5 The Postal Service’s dismissal motion overlooks that the contested counts expressly include other allegations based upon section 101(d). Each count plainly has at least one clear statutory basis upon which to seek recourse. Thus, despite its apparent reliance on section 404(b) at the very end of the counts, GameFly still satisfies the standards of pleading statutory authority at this juncture. See Complaint at 1, citing 39 U.S.C. 101(d), and 403(c). The Commission has determined that the Postal Service’s Motion for Partial Dismissal must therefore be denied. The Commission finds that the pleadings raise issues of both law and fact relevant to whether or not the actions, or inactions, of the Postal Service violate 39 U.S.C. 101(d) or 403(c), either by (a) Rising to the level of undue discrimination or preferences among users of the mails, or (b) charging rates inequitably among such mailers. 39 U.S.C. 3662(b). IV. Prehearing Conference and Public Representation sroberts on DSKD5P82C1PROD with NOTICES A prehearing conference is scheduled for July 23, 2009 at 10 a.m. in the Commission’s hearing room. GameFly and the Postal Service must meet and confer at least two weeks before the conference date to consider the appropriate scope and timeframes for discovery. Discussion should separately address each of the categories mentioned in the Complaint. See Complaint at para. 41. They shall jointly prepare a prehearing conference memorandum that identifies relevant undisputed facts. They shall offer suggestions, and be prepared to discuss the proper scope of discovery and the dates to complete discovery and to present their cases. They are urged to stipulate to an orderly process that streamlines the discovery schedule so as to reduce the need for motions on any special challenges. Where a mutually acceptable process cannot be agreed to, GameFly and the Postal Service shall fashion a joint statement clarifying areas of contention. The joint prehearing conference memorandum, with any related proposed stipulations, must be filed no later than July 20, 2009. 5 See Complaint at para. 2 (the rates and services offered to high volume DVD mailers violate sections 101(d) and 403(c), which prohibit undue discrimination, and inequitable rates and practices.); see also Answer at para. 2; and see generally Docket No. C2001–1, Order Partially Denying Motion of United States Postal Service to Dismiss Complaint and Notice of Formal Proceedings, March 20, 2001, at 9 n.11. VerDate Nov<24>2008 17:21 Jul 14, 2009 Jkt 217001 34375 V. Opportunity for Intervention POSTAL REGULATORY COMMISSION Except as otherwise specified above, 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 (https:// 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 July 22, 2009. Pursuant to 39 U.S.C. 505, E. Rand Costich and John Klingenberg are appointed to serve as officers of the Commission (Public Representative) to represent the interests of the general public in the above-captioned docket. [Docket No. CP2009–41; Order No. 237] VI. Ordering Paragraphs It is ordered: 1. The Commission finds that the Complaint by GameFly, Inc., filed April 23, 2009, regarding violations of law by the Postal Service, raises material issues of fact and shall begin proceedings in this Complaint. 2. The Motion of GameFly, Inc. for Leave to File Reply to Request of the United States Postal Service for Disposition of Complaint, filed June 2, 2009, is granted. 3. The Motion of the United States Postal Service for Partial Dismissal of Complaint, filed May 26, 2009, is denied. 4. The Commission will sit en banc in this proceeding. 5. The deadline for filing any notices of intervention is July 22, 2009. Notices shall indicate whether the intervening party intends to participate in the hearing and the nature of that participation. 6. A prehearing conference will be held in the Commission’s hearing room on July 23, 2009 at 10 a.m. At least two weeks before the conference, the parties shall meet and confer on discovery. They shall prepare a joint prehearing conference memorandum that must be filed no later than July 20, 2009. 7. The Commission appoints E. Rand Costich and John Klingenberg as Public Representative to represent the interests of the general public in this proceeding. 8. The Secretary shall arrange for publication of this order in the Federal Register. By the Commission. Judith M. Grady, Secretary. [FR Doc. E9–16782 Filed 7–14–09; 8:45 am] BILLING CODE 7710–FW–P PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 New Competitive Postal Product Postal Regulatory Commission. Notice. AGENCY: ACTION: SUMMARY: The Commission is noticing a recently filed Postal Service request to add an additional Inbound Direct Entry Contract to the Competitive Product List. The Postal Service has also filed a related contract. This notice addresses procedural steps associated with these filings. DATES: Comments are due July 10, 2009. ADDRESSES: Submit comments electronically via the Commission’s Filing Online system at https:// 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 June 29, 2009, the Postal Service filed a notice, pursuant to 39 U.S.C. 3633 and 39 CFR 3015.5, announcing that it has entered into an additional Inbound Direct Entry Contract (IDE), which it states fits within the previously established Inbound Direct Entry Contracts.1 The Postal Service states that the instant constant is functionally equivalent to previously submitted IDE contracts and is supported by the Governors’ Decision 08–6 filed in Docket No. MC2008–6.2 Notice at 2. The Notice also references Order No. 105 which established the individual IDE contracts in Dockets Nos. CP2008– 14 and CP2008–15 as functionally equivalent and added the contracts to the competitive product list as one product under the IDE classification.3 The IDE service allows the Postal Service to provide foreign postal administrations with the ability to ship sacks of parcels that are pre-labeled for direct entry into the Postal Service’s mail stream, in exchange for applicable domestic postage plus a sack handling 1 Notice of United States Postal Service of Filing of Functionally Equivalent Inbound Direct Entry Contracts, Negotiated Service Agreement, June 29, 2009 (Notice). 2 See Docket No. MC2008–6, Decision of the Governors of the United States Postal Service on the Establishment of Prices and Classifications for Inbound Direct Entry Contracts with Foreign Postal Administrations (Governors’ Decision No.08–6), May 6, 2008. 3 See PRC Order No. 105, Order Concerning Prices Under Inbound Direct Entry Contracts with Certain Foreign Postal Administrations, September 4, 2008, at 8 (Order 105). E:\FR\FM\15JYN1.SGM 15JYN1 sroberts on DSKD5P82C1PROD with NOTICES 34376 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Notices fee. The core of the service is the sack handling and entry as domestic mail and it is not dependent on the underlying domestic mail services. The Postal Service states that the instant contract is functionally equivalent to the IDE contracts previously submitted, fits within the Mail Classification Schedule (MCS) language included as Attachment A to Governors’ Decision No. 08–6 and should be included within the IDE Contracts product. Notice at 2. The instant contract. The Postal Service filed the instant contract pursuant to 39 CFR 3015.5. The contract is with P&T Express Mail Service Joint Stock Company (VNPE). VNPE is established under the auspices of the Vietnam Post and Telecommunications Group, the public postal administration for Vietnam, responsible for Vietnam’s compliance with international obligations relative to Express Mail Service. The Postal Service submitted the contract and supporting material under seal and attached a redacted copy of the contract and certified statement required by 39 CFR 3015.5(c)(2) to the Notice. Id., Attachments 1 and 2 respectively.4 The Postal Service will notify the customer of the effective date of the contract within 30 days after receiving all regulatory approvals. The contract term is 1 year from the effective date. The contract is subject to automatic renewal after the 1 year term unless the parties determine otherwise. Id., Attachment 1. The Notice advances reasons why the instant IDE contract fits within the Mail Classification Schedule language for IDE contracts. The Postal Service states that the instant contract is functionally equivalent to the IDE contracts filed previously because it shares similar cost and market characteristics and therefore, the contracts should be classified as a single product. Id. at 3– 4. It states that in Governors’ Decision No. 08–6, a pricing formula and classification system were established to ensure that each contract meets the statutory and regulatory requirements of 39 U.S.C. 3633. The Postal Service states that the costs of each contract must conform to a common description and the contract language of the MCS prescribes that each IDE contract must cover its attributable costs. Id. The Postal Service reports that the instant contract covers the same domestic services as those in Docket Nos. CP2008–14 and CP2008–15 except for the addition of the Priority Mail small flat rate box. It asserts that in ‘‘almost all substantive respects,’’ the instant IDE contract resembles the contracts in CP2008–14 and CP2008–15. Id. at 4. The Postal Service contends that even though fees or the underlying domestic services offered may be different, these distinctions do not affect the contracts’ functional equivalence because the total costs associated with IDE Contracts are volume variable and the basic service offered of handling inbound sacks in the domestic mail stream is the same. Id. Other changes include language to update changes in policies and product structures and terms to clarify the applicability of Postal Service export requirements. Id. The Postal Service also affirms the instant contract has material differences reflected in the language of this agreement compared to other IDE contracts. Id. These differences include: (1) The 1 year term of the instant contract is subject to automatic renewal which differs from the contracts in CP2008–14 and CP2008–15 which are automatically renewed unless terminated; (2) Priority Mail small flat rate box has been added as a domestic mail type which Vietnam Post can access via IDE service while other included domestic mail services included are the same as in previous contracts but have updated rate structures; 5 (3) terms are included which express the parties’ wish to explore future opportunities for volume based discounts which the Postal Service states does not represent a new commitment; (4) terms that clarify charges for non-conforming size or weight items, and Delivery Confirmation charges for First-Class Mail parcel items; (5) language which explains the need for a permit application fee; (6) terms which address changes to IDE customer payment requirements upon detention or seizure of mail by Customs and Border Protection; and (7) terms to explain the use of the Centralized Trust Account payment method as applicable to Vietnam’s financial regulatory requirements which were not offered in the contract for CP2008–14. Id. at 5–6. The Postal Service maintains that these differences only add detail or amplify processes included in previous IDE contracts and do not affect the fundamental service being offered or the 4 Attachment 1 was revised by Notice of United States Postal Service of Filing Erratum to Attachment 1 to Notice of United States Postal Service of Filing Functionally Equivalent Inbound Direct Entry Contracts Negotiated Service Agreement, June 30, 2009. 5 The Postal Service states that the other domestic mail services are the same as in Docket Nos. CP2008–14 and CP2008–15, but the instant contract reflects the updated Priority Mail rate structure based on the price adjustments for competitive products in Docket CP2009–8. VerDate Nov<24>2008 17:21 Jul 14, 2009 Jkt 217001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 essential structure of the contracts. Id. at 7. It asserts that the contracts are substantially equivalent in all pertinent respects. Id. The Postal Service maintains that certain portions of the contract and certified statement required by 39 CFR 3015.5(c)(2), related financial information, portions of the certified statement which contain costs and pricing as well as the accompanying analyses that provide prices, terms, conditions, and financial projections should remain under seal. Id. at 2–3. II. Notice of Filing The Commission establishes Docket No. CP2009–41 for consideration of the matters related to the contract identified in the Postal Service’s Notice. Interested persons may submit comments on whether the instant contract is consistent with the policies of 39 U.S.C. 3632, 3622, or 3642. Comments are due no later than July 10, 2009. The public portions of these filings can be accessed via the Commission’s Web site (https://www.prc.gov). The Commission appoints Paul L. Harrington to serve as Public Representative in this docket. III. Ordering Paragraphs It is Ordered: 1. The Commission establishes Docket No. CP2009–41 for consideration of the issues raised in this docket. 2. Comments by interested persons in these proceedings are due no later than July 10, 2009. 3. Pursuant to 39 U.S.C. 505, Paul L. Harrington is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings. 4. The Secretary shall arrange for publication of this order in the Federal Register. Dated: July 1, 2009. By the Commission. Judith M. Grady, Acting Secretary. [FR Doc. E9–16584 Filed 7–14–09; 8:45 am] BILLING CODE 7710–FW–P POSTAL REGULATORY COMMISSION [Docket No. R2009–4; Order No. 236] Postal Service Price Changes Postal Regulatory Commission. Approval of price changes. AGENCY: ACTION: DATES: Implementation is scheduled for July 19, 2009. E:\FR\FM\15JYN1.SGM 15JYN1

Agencies

[Federal Register Volume 74, Number 134 (Wednesday, July 15, 2009)]
[Notices]
[Pages 34375-34376]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16584]


-----------------------------------------------------------------------

POSTAL REGULATORY COMMISSION

[Docket No. CP2009-41; Order No. 237]


New Competitive Postal Product

AGENCY: Postal Regulatory Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Commission is noticing a recently filed Postal Service 
request to add an additional Inbound Direct Entry Contract to the 
Competitive Product List. The Postal Service has also filed a related 
contract. This notice addresses procedural steps associated with these 
filings.

DATES: Comments are due July 10, 2009.

ADDRESSES: Submit comments electronically via the Commission's Filing 
Online system at https://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 June 29, 2009, the Postal Service filed a notice, pursuant to 39 
U.S.C. 3633 and 39 CFR 3015.5, announcing that it has entered into an 
additional Inbound Direct Entry Contract (IDE), which it states fits 
within the previously established Inbound Direct Entry Contracts.\1\ 
The Postal Service states that the instant constant is functionally 
equivalent to previously submitted IDE contracts and is supported by 
the Governors' Decision 08-6 filed in Docket No. MC2008-6.\2\ Notice at 
2.
---------------------------------------------------------------------------

    \1\ Notice of United States Postal Service of Filing of 
Functionally Equivalent Inbound Direct Entry Contracts, Negotiated 
Service Agreement, June 29, 2009 (Notice).
    \2\ See Docket No. MC2008-6, Decision of the Governors of the 
United States Postal Service on the Establishment of Prices and 
Classifications for Inbound Direct Entry Contracts with Foreign 
Postal Administrations (Governors' Decision No.08-6), May 6, 2008.
---------------------------------------------------------------------------

    The Notice also references Order No. 105 which established the 
individual IDE contracts in Dockets Nos. CP2008-14 and CP2008-15 as 
functionally equivalent and added the contracts to the competitive 
product list as one product under the IDE classification.\3\ The IDE 
service allows the Postal Service to provide foreign postal 
administrations with the ability to ship sacks of parcels that are pre-
labeled for direct entry into the Postal Service's mail stream, in 
exchange for applicable domestic postage plus a sack handling

[[Page 34376]]

fee. The core of the service is the sack handling and entry as domestic 
mail and it is not dependent on the underlying domestic mail services. 
The Postal Service states that the instant contract is functionally 
equivalent to the IDE contracts previously submitted, fits within the 
Mail Classification Schedule (MCS) language included as Attachment A to 
Governors' Decision No. 08-6 and should be included within the IDE 
Contracts product. Notice at 2.
---------------------------------------------------------------------------

    \3\ See PRC Order No. 105, Order Concerning Prices Under Inbound 
Direct Entry Contracts with Certain Foreign Postal Administrations, 
September 4, 2008, at 8 (Order 105).
---------------------------------------------------------------------------

    The instant contract. The Postal Service filed the instant contract 
pursuant to 39 CFR 3015.5. The contract is with P&T Express Mail 
Service Joint Stock Company (VNPE). VNPE is established under the 
auspices of the Vietnam Post and Telecommunications Group, the public 
postal administration for Vietnam, responsible for Vietnam's compliance 
with international obligations relative to Express Mail Service. The 
Postal Service submitted the contract and supporting material under 
seal and attached a redacted copy of the contract and certified 
statement required by 39 CFR 3015.5(c)(2) to the Notice. Id., 
Attachments 1 and 2 respectively.\4\
---------------------------------------------------------------------------

    \4\ Attachment 1 was revised by Notice of United States Postal 
Service of Filing Erratum to Attachment 1 to Notice of United States 
Postal Service of Filing Functionally Equivalent Inbound Direct 
Entry Contracts Negotiated Service Agreement, June 30, 2009.
---------------------------------------------------------------------------

    The Postal Service will notify the customer of the effective date 
of the contract within 30 days after receiving all regulatory 
approvals. The contract term is 1 year from the effective date. The 
contract is subject to automatic renewal after the 1 year term unless 
the parties determine otherwise. Id., Attachment 1.
    The Notice advances reasons why the instant IDE contract fits 
within the Mail Classification Schedule language for IDE contracts. The 
Postal Service states that the instant contract is functionally 
equivalent to the IDE contracts filed previously because it shares 
similar cost and market characteristics and therefore, the contracts 
should be classified as a single product. Id. at 3-4. It states that in 
Governors' Decision No. 08-6, a pricing formula and classification 
system were established to ensure that each contract meets the 
statutory and regulatory requirements of 39 U.S.C. 3633. The Postal 
Service states that the costs of each contract must conform to a common 
description and the contract language of the MCS prescribes that each 
IDE contract must cover its attributable costs. Id.
    The Postal Service reports that the instant contract covers the 
same domestic services as those in Docket Nos. CP2008-14 and CP2008-15 
except for the addition of the Priority Mail small flat rate box. It 
asserts that in ``almost all substantive respects,'' the instant IDE 
contract resembles the contracts in CP2008-14 and CP2008-15. Id. at 4. 
The Postal Service contends that even though fees or the underlying 
domestic services offered may be different, these distinctions do not 
affect the contracts' functional equivalence because the total costs 
associated with IDE Contracts are volume variable and the basic service 
offered of handling inbound sacks in the domestic mail stream is the 
same. Id. Other changes include language to update changes in policies 
and product structures and terms to clarify the applicability of Postal 
Service export requirements. Id.
    The Postal Service also affirms the instant contract has material 
differences reflected in the language of this agreement compared to 
other IDE contracts. Id. These differences include: (1) The 1 year term 
of the instant contract is subject to automatic renewal which differs 
from the contracts in CP2008-14 and CP2008-15 which are automatically 
renewed unless terminated; (2) Priority Mail small flat rate box has 
been added as a domestic mail type which Vietnam Post can access via 
IDE service while other included domestic mail services included are 
the same as in previous contracts but have updated rate structures; \5\ 
(3) terms are included which express the parties' wish to explore 
future opportunities for volume based discounts which the Postal 
Service states does not represent a new commitment; (4) terms that 
clarify charges for non-conforming size or weight items, and Delivery 
Confirmation charges for First-Class Mail parcel items; (5) language 
which explains the need for a permit application fee; (6) terms which 
address changes to IDE customer payment requirements upon detention or 
seizure of mail by Customs and Border Protection; and (7) terms to 
explain the use of the Centralized Trust Account payment method as 
applicable to Vietnam's financial regulatory requirements which were 
not offered in the contract for CP2008-14. Id. at 5-6.
---------------------------------------------------------------------------

    \5\ The Postal Service states that the other domestic mail 
services are the same as in Docket Nos. CP2008-14 and CP2008-15, but 
the instant contract reflects the updated Priority Mail rate 
structure based on the price adjustments for competitive products in 
Docket CP2009-8.
---------------------------------------------------------------------------

    The Postal Service maintains that these differences only add detail 
or amplify processes included in previous IDE contracts and do not 
affect the fundamental service being offered or the essential structure 
of the contracts. Id. at 7. It asserts that the contracts are 
substantially equivalent in all pertinent respects. Id.
    The Postal Service maintains that certain portions of the contract 
and certified statement required by 39 CFR 3015.5(c)(2), related 
financial information, portions of the certified statement which 
contain costs and pricing as well as the accompanying analyses that 
provide prices, terms, conditions, and financial projections should 
remain under seal. Id. at 2-3.

II. Notice of Filing

    The Commission establishes Docket No. CP2009-41 for consideration 
of the matters related to the contract identified in the Postal 
Service's Notice.
    Interested persons may submit comments on whether the instant 
contract is consistent with the policies of 39 U.S.C. 3632, 3622, or 
3642. Comments are due no later than July 10, 2009.
    The public portions of these filings can be accessed via the 
Commission's Web site (https://www.prc.gov).
    The Commission appoints Paul L. Harrington to serve as Public 
Representative in this docket.

III. Ordering Paragraphs

    It is Ordered:
    1. The Commission establishes Docket No. CP2009-41 for 
consideration of the issues raised in this docket.
    2. Comments by interested persons in these proceedings are due no 
later than July 10, 2009.
    3. Pursuant to 39 U.S.C. 505, Paul L. Harrington is appointed to 
serve as officer of the Commission (Public Representative) to represent 
the interests of the general public in these proceedings.
    4. The Secretary shall arrange for publication of this order in the 
Federal Register.

    Dated: July 1, 2009.

    By the Commission.
Judith M. Grady,
Acting Secretary.
[FR Doc. E9-16584 Filed 7-14-09; 8:45 am]
BILLING CODE 7710-FW-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.