[Federal Register Volume 75, Number 50 (Tuesday, March 16, 2010)]
[Rules and Regulations]
[Pages 12445-12449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5636]
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POSTAL REGULATORY COMMISSION
39 CFR Part 3020
[Docket Nos. MC2010-18, CP2010-21 and CP2010-22; Order No. 414]
New Postal Product
AGENCY: Postal Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Commission is adding International Business Reply Service
Competitive Contract 2 to the Competitive Product List. This action is
consistent with a postal reform law. Republication of the Market
Dominant and Competitive Product Lists is also consistent with new
statutory provisions.
DATES: Effective March 16, 2010 and is applicable beginning February
26, 2010.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel,
202-789-6820 or [email protected].
SUPPLEMENTARY INFORMATION: Regulatory History, 74 FR 49823 (September
29, 2009).
Table of Contents
I. Introduction
II. Background
III. Comments
IV. Commission Analysis
V. Ordering Paragraphs
I. Introduction
The Postal Service seeks to add a new product identified as
International Business Reply Service Competitive Contract 2 to the
Competitive Product
[[Page 12446]]
List. For the reasons discussed below, the Commission approves the
Request.
II. Background
On February 9, 2010, the Postal Service filed a notice announcing
that it has entered into two additional International Business Reply
Service (IBRS) contracts.\1\ Additionally, the Postal Service filed a
formal request pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30 et seq. to
add International Business Reply Service Competitive Contract 2 to the
Competitive Product List.\2\ The Postal Service asserts that the new
International Business Reply Service Competitive Contract 2 product is
a competitive product ``not of general applicability'' within the
meaning of 39 U.S.C. 3632(b)(3). Id. The Request has been assigned
Docket No. MC2010-18.
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\1\ Notice of the United States Postal Service of Filing Two
Functionally Equivalent IBRS Competitive Contracts and Request to
Establish Successor Instruments as Baseline International Business
Reply Service Competitive Contract 2, February 9, 2010 (Request).
\2\ Id. at 2. The Postal Service states that it is not currently
proposing to remove IBRS Contract 1 from the Competitive Product
List because the agreement in Docket No. CP2009-17 remains in place.
Id., n. 5..
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The Postal Service contemporaneously filed two contracts related to
the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR
3015.5. The contracts have been assigned Docket Nos. CP2010-21 and
CP2010-22, respectively.
The Postal Service uses IBRS contracts for customers that sell
lightweight articles to foreign consumers and desires to offer their
customers a way to return the articles to the United States for
recycling, refurbishment, repair, or value-added processing. Id. at 3.
The Postal Service filed the instant contracts pursuant to 39 CFR
3015.5. In addition, the Postal Service contends that the contracts are
in accordance with Order No. 290.\3\ The term of each contract is one
year from the date the Postal Service notifies the customer that all
necessary regulatory approvals have been received. The Postal Service
states the instant contracts are to replace the expiring contracts in
Docket Nos. CP2009-20 and CP2009-22.\4\ Id. at 3-4. The Postal Service
notes that the current contracts expire on February 28, 2010.\5\
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\3\ See Docket No. CP2009-50, Order Granting Clarification and
Adding Global Expedited Package Services 2 to the Competitive
Product List, August 28, 2009 (Order No. 290).
\4\ Docket Nos. MC2009-14 and CP2009-20, Request of the United
States Postal Service to Add International Business Reply Service
Contracts to the Competitive Products List, and Notice of Filing
(Under Seal) Contract and Enabling Governors' Decision, December 24,
2008.
\5\ The Postal Service indicates an intent to begin the new
contracts on March 1, 2010. Id. at 4.
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In support of its Request, the Postal Service filed the following
attachments: Attachment 1-a statement of supporting justification as
required by 39 CFR 3020.32; Attachments 2-A and 2-B-redacted copies of
the contracts; Attachments 3-A and 3-B-redacted copies of the certified
statements required by 39 CFR 3015.5(c)(2); Attachment 4-Governors'
Decision No. 08-24 which establishes prices and classifications for the
IBRS Contracts product; and includes Mail Classification Schedule
language for IBRS contracts, formulas for pricing along with an
analysis, certification of the Governors vote, and certification of
compliance with 39 U.S.C. 3633(a); and Attachment 5-an application for
non-public treatment of materials to maintain the contracts and
supporting documents under seal.
Substantively, the Request seeks to add International Business
Reply Service Competitive Contract 2 to the Competitive Product List.
Id. at 1.
The Postal Service asserts that the two contracts have generally
similar cost and market characteristics as previous IBRS contracts.
However, because it requests that the instant contracts be deemed the
new baseline contracts for the International Business Reply Service
Competitive Contract 2 product, the Postal Service considers the
appropriate analysis to be the comparison of the new contracts' cost
attributes and market characteristics with one another. Id. at 4. The
Postal Service indicates that the instant contracts differ from one
another basically only in the customer identity. Id. The Postal Service
represents that prices and classifications ``not of general
applicability'' for IBRS contracts were established by Governors'
Decision No. 08-24 filed in Docket Nos. MC2009-14 and CP2009-20. Id. at
1, n.1. It also identifies the instant contracts as fitting within the
Mail Classification Schedule language for IBRS contracts as included as
an attachment to Governors' Decision No. 08-24. Id. at 1.
The Request advances reasons why International Business Reply
Service Competitive Contract 2 should be added to the Competitive
Product List and fits within the Mail Classification Schedule language
for IBRS contracts. Id. at 5. The Postal Service also explains that a
redacted version of the supporting financial documentation is included
with this filing as a separate Excel file. Id. at 3.
The Postal Service asserts that the instant contracts are in
compliance with 39 U.S.C. 3633, are functionally equivalent to one
another, fit within the IBRS Mail Classification Schedule language,
will serve as the new baseline contracts for the proposed product, and
should be grouped together under a single product. Id. at 5-6. It
requests that the instant contracts be included within the
International Business Reply Service Competitive Contract 2 product.
Id.
In Order No. 407, the Commission gave notice of the docket,
appointed a Public Representative, and provided the public with an
opportunity to comment.\6\
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\6\ Notice and Order Concerning Filing of International Business
Reply Service Competitive Contract 2 Negotiated Service Agreement,
February 12, 2010 (Order No. 407).
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III. Comments
Comments were filed by the Public Representative.\7\ No filings
were submitted by other interested parties. The Public Representative
states that each element of 39 U.S.C. 3633(a) appears to be met by the
proposed International Business Reply Service Competitive Contract 2
product. Id. at 2. He observes that the contracts' pricing terms
comport with Governors' Decision No. 08-24. Id. The Public
Representative relates that the addition of the proposed product to the
Competitive Product List is consistent with the statutory requirements
of 39 U.S.C. 3632, 3633, and 3642. Id. at 2-3.
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\7\ Public Representative Comments in Response to United States
Postal Service Notice Concerning Filing of Additional International
Business Reply Service Contract 2 Negotiated Service Agreements,
February 22, 2010 (Public Representative Comments).
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He also states that the Postal Service has provided sufficient
justification for confidentiality of the matters filed under seal. Id.
at 3. The Public Representative notes that the IBRS product improves
the efficiency of the mail, provides convenience to the mailers, and
serves the public interest. Id. at 3-5. He concludes that the contracts
comport with all applicable elements of title 39 because it appears
they will generate sufficient revenue to cover attributable costs,
should not cause market dominant products to subsidize competitive
products, and will contribute to the recovery of the Postal Service's
total institutional costs. Id. at 6.
IV. Commission Analysis
The Postal Service's filing presents several issues for the
Commission to consider: (1) the addition of a new
[[Page 12447]]
product to the Mail Classification Schedule in accordance with 39
U.S.C. 3642; (2) whether the contracts satisfy 39 U.S.C. 3633; and (3)
the treatment of these contracts as the baseline agreements for any
future International Business Reply Service Competitive Contract 2
contracts. In reaching its conclusions, the Commission has reviewed the
Request, the contracts, the financial analyses provided under seal, and
the Public Representative's comments.
Product classification. The Postal Service notes that the
Commission has had the opportunity to review the IBRS competitive
contracts product in Order No. 178 and found that those contracts were
properly classified as competitive. In support of its proposal, the
Postal Service includes the Statement of Supporting Justification
(Statement) required by 39 CFR 3020.32 originally filed in Docket No.
MC2009-14 concerning International Business Reply Service Contracts 1.
Among other things, the Statement provides support for classifying IBRS
as a competitive product. Use of the prior Statement is acceptable to
support the conclusion that International Business Reply Service
Contract 2 is appropriately classified as competitive, in particular,
because the instant contracts are the successors to those in Docket
Nos. CP2009-20 and CP2009-22. Id. at 5.
Cost considerations. The Postal Service contends that the instant
contracts and supporting documents filed in these dockets establish
compliance with the statutory provisions applicable to rates for
competitive products (39 U.S.C. 3633). Id. at 3. It asserts that
Governors' Decision No. 08-24 supports these contracts and establishes
a pricing formula and classification that ensures each contract meets
the criteria of 39 U.S.C. 3633 and the regulations promulgated
thereunder. Id., Attachment 4, Attachment D.
Based on the data submitted, the Commission finds that these
contracts should cover their 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, an initial review of the proposed contracts
indicates that they comport with the provisions applicable to rates for
competitive products.
Baseline agreement. The Postal Service seeks to add a new product,
International Business Reply Service Competitive Contract 2, to the
Competitive Product List. It contends that the instant contracts are
functionally equivalent to previously filed IBRS contracts. At the same
time, it asks that the instant contracts be considered the new baseline
for future International Business Reply Service Competitive Contract 2
contracts. Id. at 2. The Postal Service notes that the instant
contracts are the direct successors to the contracts that the
Commission found to be eligible for inclusion in the International
Business Reply Service Competitive Contracts 1 product. Id. Because
International Business Reply Service Competitive Contract 2 is being
added as a new product, the Commission finds it unnecessary to address
the issue of functional equivalency with previous contracts. Instead,
the Commission will review the instant contracts to determine if they
are functionally equivalent with one another.
The Commission reviewed each contract and finds that, with the
exception of customer-specific information, they are essentially
identical and, therefore, are functionally equivalent. Accordingly, the
Commission finds that International Business Reply Service Competitive
Contract 2 is properly added to the Competitive Product List as a new
product.
The instant contracts, similar to the previous IBRS competitive
contracts, contain price contingency clauses which allow the Postal
Service flexibility to change rates without entering a new agreement.
The Commission initially reviewed a similar provision when it was filed
in response to the Commission's request in Docket No. CP2009-20.\8\ In
Order No. 178, the Commission addressed the implications of the
contingency clause in the contract in Docket No. CP2010-20, and
determined that those conclusions apply to other contracts (including
the instant contracts) with similar provisions.\9\
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\8\ See Docket Nos. MC2009-14 and CP2009-20, Response of the
United States Postal Service to Order No. 164, and Notice of Filing
Redacted Contract and Other Requested Materials, January 12, 2009.
\9\ The Commission explained that the Postal Service must file
the changed rates under 39 CFR 3015.5 and give a minimum of 15 days'
notice. However, unless the changed rates raise new issues, the
Commission found that it would not anticipate a need to act further.
See Docket Nos. MC2009-14 and CP2009-20, Order Concerning
International Business Reply Service Contract 1 Negotiated Service
Agreement, February 5, 2009, at 9 (Order No. 178).
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Following the current practice, the Postal Service shall identify
all significant differences between any new IBRS contract and the
International Business Reply Service Competitive Contract 2 product.
Such differences would include terms and conditions that impose new
obligations or new requirements on any party to the contract. The
docket referenced in the caption should be Docket No. MC2010-18. In
conformity with the current practice, a redacted copy of Governors'
Decision No. 08-24 should be included in the new filing along with an
electronic link to it.
Other considerations. The Postal Service shall inform the
Commission of the effective dates of the contract and promptly notify
the Commission if the contract terminates earlier than scheduled.
In conclusion, the Commission adds International Business Reply
Service Competitive Contract 2 to the Competitive Product List and
finds the negotiated service agreements submitted in Docket Nos.
CP2010-21 and CP2010-22 are appropriately included within the
International Business Reply Service Competitive Contract 2 product.
V. Ordering Paragraphs
It is ordered:
1. International Business Reply Service Competitive Contract 2
(MC2010-18), CP2010-21 and CP2010-22) is added to the Competitive
Product List as a new product under Negotiated Service Agreements,
Inbound International.
2. The Postal Service shall notify the Commission of the effective
dates of the contract and update the Commission if the termination date
changes as discussed in this order.
3. The Postal Service shall file any modifications of price based
on cost increases or contingency price provisions in these contracts
with the Commission as discussed in the body of this order.
4. The Secretary shall arrange for the publication of this order in
the Federal Register.
List of Subjects in 39 CFR Part 3020
Administrative practice and procedure; Postal Service.
By the Commission.
Shoshana M. Grove,
Secretary.
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For the reasons discussed in the preamble, the Postal Regulatory
Commission amends chapter III of title 39 of the Code of Federal
Regulations as follows:
PART 3020--PRODUCT LISTS
0
1. The authority citation for part 3020 continues to read as follows:
[[Page 12448]]
Authority: Authority: 39 U.S.C. 503; 3622; 3631; 3642; 3682.
0
2. Revise 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 Management Services
Caller Service
Change-of-Address Credit Card Authentication
Confirm
Customized Postage
International Reply Coupon Service
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
Inbound International
Canada Post--United States Postal Service Contractual Bilateral
Agreement for Inbound Market Dominant Services (MC2010-12 and
R2010-2)
Market Dominant Product Descriptions
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
Address Correction Service
Applications and Mailing Permits
Business Reply Mail
Bulk Parcel Return Service
Certified Mail
Certificate of Mailing
Collect on Delivery
Delivery Confirmation
Insurance
Merchandise Return Service
Parcel Airlift (PAL)
Registered Mail
Return Receipt
Return Receipt for Merchandise
Restricted Delivery
Shipper-Paid Forward
Signature Confirmation
Special Handling
Stamped Envelopes
Stamped Cards
Premium Stamped Stationery
Premium Stamped Cards
International Ancillary Services
International Certificate of Mailing
International Registered Mail
International Return Receipt
International Restricted Delivery
Address List Services
Caller Service
Change-of-Address Credit Card Authentication
Confirm
International Reply Coupon Service
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
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)
Inbound International Expedited Services 2 (MC2009-10 and CP2009-
12)
Inbound International Expedited Services 3 (MC2010-13 and CP2010-
12)
Priority Mail
Priority Mail
Outbound Priority Mail International
Inbound Air Parcel Post (at non-UPU rates)
Royal Mail Group Inbound Air Parcel Post Agreement
Inbound Air Parcel Post (at UPU rates)
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)
Canada Post--United States Postal Service Contractual Bilateral
Agreement for Inbound Competitive Services (MC2010-14 and
CP2010-13--Inbound Surface Parcel post at Non-UPU Rates and
Xpresspost-USA)
International Money Transfer Service--Outbound
International Money Transfer Service--Inbound
International Ancillary Services
Special Services
Address Enhancement Service
Greeting Cards and Stationery
Premium Forwarding Service
Shipping and Mailing Services
Negotiated Service Agreements
Domestic
Express Mail Contract 1 (MC2008-5)
Express Mail Contract 2 (MC2009-3 and CP2009-4)
Express Mail Contract 3 (MC2009-15 and CP2009-21)
Express Mail Contract 4 (MC2009-34 and CP2009-45)
Express Mail Contract 5 (MC2010-5 and CP2010-5)
Express Mail Contract 6 (MC2010--6 and CP2010-6)
Express Mail Contract 7 (MC2010--7 and CP2010-7)
Express Mail Contract 8 (MC2010--16 and CP2010-16)
Express Mail & Priority Mail Contract 1 (MC2009-6 and CP2009-7)
Express Mail & Priority Mail Contract 2 (MC2009-12 and CP2009-
14)
Express Mail & Priority Mail Contract 3 (MC2009-13 and CP2009-
17)
Express Mail & Priority Mail Contract 4 (MC2009-17 and CP2009-
24)
Express Mail & Priority Mail Contract 5 (MC2009-18 and CP2009-
25)
[[Page 12449]]
Express Mail & Priority Mail Contract 6 (MC2009-31 and CP2009-
42)
Express Mail & Priority Mail Contract 7 (MC2009-32 and CP2009-
43)
Express Mail & Priority Mail Contract 8 (MC2009-33 and CP2009-
44)
Parcel Select & Parcel Return Service Contract 1 (MC2009-11 and
CP2009-13)
Parcel Select & Parcel Return Service Contract 2 (MC2009-40 and
CP2009-61)
Parcel Return Service Contract 1 (MC2009-1 and CP2009-2)
Priority Mail Contract 1 (MC2008-8 and CP2008-26)
Priority Mail Contract 2 (MC2009-2 and CP2009-3)
Priority Mail Contract 3 (MC2009-4 and CP2009-5)
Priority Mail Contract 4 (MC2009-5 and CP2009-6)
Priority Mail Contract 5 (MC2009-21 and CP2009-26)
Priority Mail Contract 6 (MC2009-25 and CP2009-30)
Priority Mail Contract 7 (MC2009-25 and CP2009-31)
Priority Mail Contract 8 (MC2009-25 and CP2009-32)
Priority Mail Contract 9 (MC2009-25 and CP2009-33)
Priority Mail Contract 10 (MC2009-25 and CP2009-34)
Priority Mail Contract 11 (MC2009-27 and CP2009-37)
Priority Mail Contract 12 (MC2009-28 and CP2009-38)
Priority Mail Contract 13 (MC2009-29 and CP2009-39)
Priority Mail Contract 14 (MC2009-30 and CP2009-40)
Priority Mail Contract 15 (MC2009-35 and CP2009-54)
Priority Mail Contract 16 (MC2009-36 and CP2009-55)
Priority Mail Contract 17 (MC2009-37 and CP2009-56)
Priority Mail Contract 18 (MC2009-42 and CP2009-63)
Priority Mail Contract 19 (MC2010-1 and CP2010-1)
Priority Mail Contract 20 (MC2010-2 and CP2010-2)
Priority Mail Contract 21 (MC2010-3 and CP2010-3)
Priority Mail Contract 22 (MC2010-4 and CP2010-4)
Priority Mail Contract 23 (MC2010-9 and CP2010-9)
Priority Mail Contract 24 (MC2010-15 and CP2010-15)
Outbound International
Direct Entry Parcels Contracts
Direct Entry Parcels 1 (MC2009-26 and CP2009-36)
Global Direct Contracts (MC2009-9, CP2009-10, and CP2009-11)
Global Direct Contracts 1 (MC2010-17 and CP2010-18)
Global Expedited Package Services (GEPS) Contracts
GEPS 1 (CP2008-5, CP2008-11, CP2008-12, CP2008-13, CP2008-
18, CP2008-19, CP2008-20, CP2008-21, CP2008-22, CP2008-23,
and CP2008-24)
Global Expedited Package Services 2 (CP2009-50)
Global Plus Contracts
Global Plus 1 (CP2008-8, CP2008-46 and CP2009-47)
Global Plus 2 (MC2008-7, CP2008-48 and CP2008-49)
Inbound International
Inbound Direct Entry Contracts with Foreign Postal
Administrations
Inbound Direct Entry Contracts with Foreign Postal
Administrations (MC2008-6, CP2008-14 and MC2008-15)
Inbound Direct Entry Contracts with Foreign Postal
Administrations 1 (MC2008-6 and CP2009-62)
International Business Reply Service Competitive Contract 1
(MC2009-14 and CP2009-20)
International Business Reply Service Competitive Contract 2
(MC2010-18, CP2010-21 and CP2010-22)
Competitive Product Descriptions
Express Mail
Express Mail
Outbound International Expedited Services
Inbound International Expedited Services
Priority
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
International Money Transfer Service
Inbound Surface Parcel Post (at non-UPU rates)
International Ancillary Services
International Certificate of Mailing
International Registered Mail
International Return Receipt
International Restricted Delivery
International Insurance
Negotiated Service Agreements
Domestic
Outbound International
Part C--Glossary of Terms and Conditions [Reserved]
Part D--Country Price Lists for International Mail [Reserved]
[FR Doc. 2010-5636 Filed 3-15-10; 8:45 am]
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