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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Rules and Regulations
per day that is significantly faster than that for shorter-distance mail, even if longer-distance mails speed advantage will now be somewhat less. Initial Brief of the United States Postal Service, PRC
Docket No. N20211 June 21, 2021, at 4749.
As for the third prong in the 39 U.S.C.
403 c analysis, the Postal Service notes that both courts and the PRC have granted it broad latitude in distinguishing between different mailers, given the Postal Services statutory responsibility to provide universal service in an economical and efficient manner. See, e.g., Egger v.
USPS, 436 F. Supp. 138, 142 W.D. Va.
1977 declaring it obvious that the Postal Service may provide different levels of delivery service to different groups of mail users so long as the distinctions are reasonable; UPS
Worldwide Forwarding, Inc. v. U.S.
Postal Serv., 66 F.3d 621, 63435 3d Cir. 1995 noting that Postal Service may treat mailers differently so long as that different treatment is reasonable;
Order No. 4294, Order Granting the Postal Services Motion to Dismiss, PRC
Docket No. C20191 Dec. 12, 2018, at 10 the Postal Service may differentiate among customers where the differences have a rational basis; Order No. 5491, Order Granting the Postal Services Motion to Dismiss Complaint with Prejudice, PRC Docket No. C20202
Apr. 28, 2020, at 9.
The Postal Service has adduced a rational, non-arbitrary basis for the differences in standards: namely, to improve service performance by enhancing reliability through greater use of surface transportation, which in turn depends on designing standards that predicate days of delivery on geographic distances. Moreover, courts have recognized that objective geographic disparities can serve as a rational justification for different levels of service in connection with 39 U.S.C.
403c. UPS Worldwide Forwarding, 66
F.3d at 63435.
Some commenters suggest that 39
U.S.C. 101a and 404c constrain the interpretation of the phrase undue or unreasonable discrimination, in support of the broader view that any geographical disparities in service standards would, by definition, trigger a 39 U.S.C. 403c violation. One commenter, for instance, discusses the uniform-rate requirement under 39
U.S.C. 404c and then speculatively asserts that the scope of discrimination under 39 U.S.C. 403c should likewise bar geographicallybased differentials in service standards.
This argument is inapposite: 39 U.S.C.
404c speaks to rates, not to service
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standards, and nothing in the statutory text ties the two provisions together in the manner suggested by the commenter. Another commenter purports to read, in 39 U.S.C. 101as stated goal of binding the nation together, an obligation to impose uniform service standards across the United States. The Postal Service further notes, though, that geographically-tiered service distinctions already exist in the prior service standards upheld by this and other commenters. If such distinctions do not give the commenters pause in regard to the prior service standards, then it cannot be that the mere occurrence of a geographical disparity constitutes undue discrimination in connection with the new service standards, either.
Some commenters contend that the changes would result in discrimination with respect to certain demographic groups. The States thus express concern over the changes impact on rural, lowincome, elderly, and disabled customers. The Postal Service notes, however, that the States do not assert that the changes will fall unequally on such customers; in other words, they neither claim nor purport to demonstrate that these changes would target a disproportionately large percentage of mailings conveyed by vulnerable populations. Furthermore, even assuming for the sake of argument that rural, low-income, disabled, and/or other vulnerable customers may be disproportionately reliant on First-Class Mail, they likewise prove particularly vulnerable to the unreliable air network and to the resulting service failures that have persisted for years, both of which the changes aim to relieve.
Certain commenters likewise express concerns about the possible impact of the changes on their own interests as veterans, rural customers, disabled customers, elderly customers, small businesses, and other vulnerable customers. With regard to rural communities in particular, joint comments by public advocacy groups suggest that the changes violate 39
U.S.C. 101b, which requires that the Postal Service provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self sustaining and to ensure effective postal services . . . to residents of both urban and rural communications. However palpable their policy interests as a general matter, none of these commenters present evidence that they disproportionately align with the minority of mail volume affected by the service standard changes for example, that a greater percentage of
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rural customers mail will have a changed service standard than for nonrural customers. As noted earlier, the service standard changes are based on distance traveled by a mailpiece, without further distinction as to the location or nature of the mailer or recipient. Moreover, the Postal Service notes that insofar as persons in vulnerable communitiesincluding rural communitiescurrently experience delivery delays and other service failures, they stand to benefit from the changes, which aim to provide more reliable deliveries and therefore consistent customer expectations.
Moreover, and as discussed above, the service standards are limited in scope.
One commenter, a public advocacy group for prisoners, claims that the current changes would violate 39 U.S.C.
404c. First-Class Mail, on its theory, fulfills the mandate that the Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection, one of which shall provide for the most expeditious handling and transportation afforded mail matter by the Postal Service. It asserts that, under the proposed service standards, First-Class letters would categorically be excluded from air transportation, even though other classes of mail would continue to be transported by air; and that this discrepancy plainly violates the requirement that First-Class letters be provided the most expeditious handling and transportation. As an initial matter, it is incorrect to state that FirstClass Mail would be categorically excluded from air transportation under this proposal; much long-distance FirstClass Mail would continue to be transported by air. In any event, the Postal Service notes that 39 U.S.C.
404c requires only that one class of sealed letters receive most expeditious treatment, not that each class of sealed letters do so. Thus, the most expeditious type of sealed mail has long been understood to mean what is now Priority Mail Express, which is handled and transported more expeditiously than First-Class Mail.
In sum, the service standard changes do not conflict with any statutory obligations; to the contrary, considering those obligations as a whole, the changes properly balance the policies of the statute. Consequently, modifications to the Proposed Rule in light of the comments received are unwarranted.
IV. Explanation of Final Rules The Postal Services market-dominant service standards are contained in 39
CFR part 121. The revised version of 39
CFR part 121 appears at the end of this
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