Mail Preparation Changes, 52154-52157 [2018-22477]
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52154
Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations
(2) A pre-1972 sound recording is a
sound recording fixed before February
15, 1972.
(c) Form and submission. A rights
owner seeking to comply with 17 U.S.C.
1401(f)(5)(A) must submit a schedule
listing the owner’s pre-1972 sound
recordings using an appropriate form
provided by the Copyright Office on its
website and following the instructions
for completion and submission
provided on the Office’s website or the
form itself. The Office may reject any
submission that fails to comply with
these requirements.
(d) Content. A schedule of pre-1972
sound recordings shall contain the
following:
(1) For each sound recording listed,
the right’s owner name, sound recording
title, and featured artist;
(2) A certification that the individual
submitting the schedule of pre-1972
sound recordings has appropriate
authority to submit the schedule and
that all information submitted to the
Office is true, accurate, and complete to
the best of the individual’s knowledge,
information, and belief, and is made in
good faith.
(3) For each sound recording listed,
the rights owner may opt to include
additional information as permitted and
in the format specified by the Office’s
form or instructions, such as publication
date, or alternate title information.
(e) Transfer of rights ownership. If
ownership of a pre-1972 sound
recording changes after its inclusion in
a schedule filed with the Office under
this section, the Office will consider the
schedule to be effective as to any
successor in interest. A successor in
interest may, but is not required, to file
a new schedule under this section.
(f) Legal sufficiency of schedules. The
Copyright Office does not review
schedules submitted under paragraph
(c) of this section for legal sufficiency,
interpret their content, or screen them
for errors or discrepancies. The Office’s
review is limited to whether the
procedural requirements established by
the Office (including payment of the
proper filing fee) have been met. Rights
owners are therefore cautioned to
review and scrutinize schedules to
assure their legal sufficiency before
submitting them to the Office.
(g) Filing date. The date of filing of a
schedule of pre-1972 sound recordings
is the date when a proper submission,
including the prescribed fee, is received
in the Copyright Office. The filing date
may not necessarily be the same date
that the schedule, for purposes of 17
U.S.C. 1401(f)(5)(A)(i)(II), is indexed
into the Office’s public records.
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(h) Fee. The filing fee to submit a
schedule of pre-1972 sound recordings
pursuant to this section is prescribed in
§ 201.3(c).
(i) Third-party notification. A person
may request timely notification of
filings made under this section by
following the instructions provided by
the Copyright Office on its website.
■ 5. Add § 201.36 to read as follows:
§ 201.36 Notices of contact information for
transmitting entities publicly performing
pre-1972 sound recordings.
(a) General. This section prescribes
the rules under which transmitting
entities may file contact information
with the Copyright Office pursuant to 17
U.S.C. 1401(f)(5)(B).
(b) Definitions. For purposes of this
section:
(1) Unless otherwise specified, the
terms used have the meanings set forth
in 17 U.S.C. 1401.
(2) A pre-1972 sound recording is a
sound recording fixed before February
15, 1972.
(3) A transmitting entity is an entity
that, as of October 11, 2018, publicly
performs pre-1972 sound recordings by
means of digital audio transmission.
(c) Form and submission. A
transmitting entity seeking to comply
with 17 U.S.C. 1401(f)(5)(B) must
submit contact information using an
appropriate form specified by the
Copyright Office on its website and
following the instructions for
completion and submission provided on
the Office’s website or the form itself.
The Office may reject any submission
that fails to comply with these
requirements. No notice or amended
notice received after April 9, 2019 will
be accepted by the Office.
(d) Content. A notice submitted under
paragraph (c) of this section shall
contain the following, in addition to any
other information required on the
Office’s form or website:
(1) The full legal name, email address,
and physical street address of the
transmitting entity to which rights
owners should send notifications of
claimed violations of 17 U.S.C. 1401(a).
A post office box may not be substituted
for the street address of a transmitting
entity. Related or affiliated transmitting
entities that are separate legal entities
(e.g., corporate parents and subsidiaries)
are considered separate transmitting
entities, and each must file its own
separate notice of contact information.
(2) The website(s) and/or
application(s) through which the
transmitting entity publicly performs
pre-1972 sound recordings by means of
digital audio transmission.
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(3) A certification that the
transmitting entity was publicly
performing pre-1972 sound recordings
by means of digital audio transmission
as of October 11, 2018.
(4) A certification that the individual
submitting the notice has appropriate
authority to submit the notice and that
all information submitted to the Office
is true, accurate, and complete to the
best of the individual’s knowledge,
information, and belief, and is made in
good faith.
(5) The transmitting entity may opt to
include alternate names for which the
transmitting entity seeks application of
17 U.S.C. 1401(f)(5)(B)(iii), such as
names that the public would be likely
to use to search for the transmitting
entity in the Copyright Office’s online
directory of transmitting entities
publicly performing pre-1972 sound
recordings by means of digital audio
transmission, including names under
which the transmitting entity is doing
business and other commonly used
names. Separate legal entities are not
considered alternate names.
(e) Fee. The filing fee to submit a
notice of contact information pursuant
to this section is prescribed in
§ 201.3(c).
Dated: October 11, 2018.
Karyn A. Temple,
Acting Register of Copyrights and Director
of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2018–22518 Filed 10–15–18; 8:45 am]
BILLING CODE 1410–30–P
POSTAL REGULATORY COMMISSION
39 CFR Part 3010
[Docket No. RM2016–6; Order No. 4850]
Mail Preparation Changes
Postal Regulatory Commission.
Final rule.
AGENCY:
ACTION:
The Commission adopts a
final rule concerning mail preparation
changes. The rule as adopted removes
reference to procedures relying on the
existence of a substantive standard for
mail preparation changes in response to
the recent decision in United States
Postal Serv. v. Postal Reg. Comm’n, 886
F.3d 1253 (D.C. Cir. 2018).
DATES: Effective November 15, 2018.
FOR FURTHER INFORMATION CONTACT:
David A. Trissell, General Counsel, at
202–789–6820.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Federal Register / Vol. 83, No. 200 / Tuesday, October 16, 2018 / Rules and Regulations
Table of Contents
I. Introduction
II. Background
III. Review of Comments
IV. Commission Analysis
V. Regulatory Flexibility Act Analysis
VI. Ordering Paragraphs
I. Introduction
In this Order, the Commission adopts
a final rule concerning mail preparation
changes. The final rule partially
rescinds an existing Commission rule
and is located at 39 CFR part 3010. The
rule as adopted removes reference to
procedures relying on the existence of a
substantive standard for mail
preparation changes in response to the
recent decision in United States Postal
Serv. v. Postal Reg. Comm’n, 886 F.3d
1253 (D.C. Cir. 2018).
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II. Background
In Order No. 3047, the Commission
developed a substantive standard to
determine when a mail preparation
change would constitute a ‘‘change in
rates’’ under 39 U.S.C. 3622.1 The
standard established by the Commission
in Order No. 3047 provided that mail
preparation changes could have rate
effects when they resulted in the
deletion or redefinition of a rate cell as
set forth by § 3010.23(d)(2).
In conjunction with Order No. 3047,
the Commission initiated a rulemaking
proceeding to develop procedures to
ensure that the Postal Service properly
applies the Commission’s standard
when making a determination of
whether a mail preparation change has
a rate effect.2 The final rule created a
process that required the Postal Service
to: (1) Provide public notice of all mail
preparation changes in a single source;
(2) affirmatively designate whether or
not a change to a mail preparation
requirement implicates the price cap;
and (3) show by a preponderance of the
1 The standard in Order No. 3047 was developed
in response to remand from the United States Court
of Appeals for the District of Columbia (the Court)
in United States Postal Serv. v. Postal Reg. Comm’n,
785 F.3d 740 (D.C. Cir. 2015). For a complete
history of the proceedings underlying the
Commission’s promulgation of a standard for mail
preparation changes, see Docket No. R2013–10,
Order on Price Adjustments for Market Dominant
Products and Related Mail Classification Changes,
November 21, 2013, at 5–35 (Order No. 1890);
Docket No. R2013–10R, Order Resolving Issues on
Remand, January 22, 2016 (Order No. 3047); Docket
No. R2013–10R, Order Resolving Motion for
Reconsideration of Commission Order No. 3047,
July 20, 2016 (Order No. 3441).
2 Order Adopting Final Procedural Rule for Mail
Preparation Changes, January 25, 2018, at 22–23
(Order No. 4393). The Order Adopting Final
Procedural Rule for Mail Preparation Changes was
published in the Federal Register on February 1,
2018. See 83 FR 4585 (Feb. 1, 2018).
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evidence, if the designation is
challenged, that the price cap does not
apply to the change.3 The Postal Service
filed petitions for review challenging
the Commission’s standard in Order No.
3047 and the final rule in Order No.
4393.
Shortly after the Commission adopted
the final rule in this docket, the Court
issued its decision in United States
Postal Serv. v. Postal Reg. Comm’n, 886
F.3d 1253 (D.C. Cir. 2018) vacating the
Commission’s standard in Order No.
3047. In response to the Court’s
decision, the Commission and the Postal
Service filed a joint motion to remand
the petition for review of the final rule
back to the Commission for further
proceedings.4
On August 9, 2018, the Commission
issued the notice of proposed
rulemaking (NPR), setting forth a
proposed rescission to the rule set forth
in § 3010.23(d)(5) that created
procedures concerning mail preparation
changes.5 The NPR also provided an
opportunity for public comment. Order
No. 4751 at 5. The Commission
proposed removing the components of
the rule that require existence of a
standard in order to be enforced,
specifically: (1) The affirmative
designation requirement; and (2) the
evidentiary standard. Id. at 4. As
explained in the NPR, both the
affirmative designation and evidentiary
burden parts of the rule were predicated
on the existence of a substantive
standard. Id. As that standard was
vacated and a new standard does not yet
exist, the proposed rule removed the
affirmative designation requirement and
evidentiary burden component from
paragraph (d)(5) of this section. In the
NPR, the Commission proposed to
retain the publication requirement of
the rule as it would remain independent
of any standard. Id.
III. Review of Comments
On September 13, 2018, the
Commission received comments in
3 See Petition for Review, United States Postal
Serv. v. Postal Reg. Comm’n, 886 F.3d 1253 (D.C.
Cir. 2018); Petition for Review, United States Postal
Serv. v. Postal Reg. Comm’n, No. 18–1059 (D.C. Cir.
Feb. 26, 2018).
4 See Unopposed Motion to Remand Case, United
States Postal Serv. v. Postal Reg. Comm’n, No. 18–
1059 (D.C. Cir. May 10, 2018).
5 Notice of Proposed Rulemaking, August 9, 2018
(Order No. 4751). On the same day, the Commission
filed an advance notice of proposed rulemaking
(ANPR) to seek proposals for a new standard and
process to determine when a mail preparation
change requires price cap compliance in accordance
with the Court’s decision vacating the standard.
Docket No. RM2018–11, Advance Notice of
Proposed Rulemaking, August 9, 2018 (Order No.
4750). The ANPR was published in the Federal
Register, see 83 FR 40485 (Aug. 15, 2018).
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52155
response to the NPR from the
Association for Postal Commerce
(PostCom), the Postal Service, and the
Public Representative.6
PostCom Comments. PostCom
supports the premise behind partial
rescission of the rule, acknowledging
that the rule referencing a standard
‘‘cannot be enforced in the absence of a
standard.’’ PostCom Comments at 1.
However, PostCom does not support
rescission of the rule at this time. Id.
Instead, PostCom suggests the
Commission ‘‘temporarily suspend
enforcement of the portion of the rule
that the Commission is proposing to
eliminate.’’ Id.
To support its request for the
Commission to temporarily suspend
enforcement of the rule as opposed to
rescission through rulemaking, PostCom
points to the Commission’s intention to
develop an appropriate standard in a
separate rulemaking.7 PostCom submits
that elimination of the portion of the
rule relying on a substantive standard is
unnecessary because the current
procedures ‘‘will apply equally well to
the final standard established by the
Commission.’’ PostCom Comments at 2.
PostCom states that the procedures only
rely on the ‘‘existence of’’ a substantive
standard and not the contents of that
substantive standard. Id. at 3. PostCom
points to the fact that the Commission
itself indicated the separation between
the substantive standard and the
applicability of the final procedural
rule, noting that the Commission stated
that the Court’s disagreement with the
substantive standard would not affect
the final rule. Id. As a result, PostCom
submits that it is ‘‘imprudent to
eliminate these procedures at this time’’
and that elimination of the rule now
will only require more rulemaking in
the future should the Commission set a
new standard. Id.
Postal Service Comments. The Postal
Service supports partial rescission of the
rule that relies on existence of a
substantive standard. Postal Service
Comments at 1–3. In the Postal Service’s
view, ‘‘compliance with the procedural
rule necessarily would require
application of the substantive standard’’
for mail preparation changes. Id. at 2.
The Postal Service agrees with the
Commission’s proposal to rescind the
portion of the rule that ‘‘requires the
6 Comments of the Association for Postal
Commerce, September 13, 2018 (PostCom
Comments); United States Postal Service Comments
on Notice of Proposed Rulemaking, September 13,
2018 (Postal Service Comments); Public
Representative Comments on Notice of Proposed
Rulemaking, September 13, 2018 (PR Comments).
7 Id. at 2 (citing Order No. 4751 at 4; Order No.
4750).
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Postal Service affirmatively to designate
whether a given mail preparation
change requires compliance with the
price cap rules’’ and the portion
concerning the evidentiary burden. Id.
The Postal Service also indicates that
it has already complied with the
publication requirement that the
Commission proposes to retain in the
rule. Id. at 3.
Public Representative Comments. The
Public Representative supports the
Commission’s proposal to rescind
portions of the procedural rule
concerning mail preparation changes
‘‘subject to reinstatement depending
upon the outcome of the Commission’s
review of the applicable standard for
determining whether a rate increase is
in compliance with § 3010.23(d)(2).’’ PR
Comments at 1–2.
He notes that it would be futile to
require the Postal Service to
affirmatively designate whether a
change requires compliance with
§ 3010.23(d)(2) when there is no
standard to measure compliance. Id. at
7. With respect to the evidentiary
portion of the rule, requiring the Postal
Service to provide by a preponderance
of the evidence that a mail preparation
change does not require compliance
with § 3010.23(d)(2), he contends that
compliance with this provision would
be ‘‘a very difficult proposition without
any standard to serve as a target.’’ Id. at
8. Further, parties would be ‘‘unable to
determine the information needed to
rebut the Postal Service’s
determination’’ without an operative
standard. Id.
The Public Representative also
supports the Commission’s retention of
the single source reporting requirement.
Id. at 5–6.
IV. Commission Analysis
The comments reflect general support
for the removal of portions of the
procedural rule concerning mail
preparation changes that rely on the
existence of a substantive standard.
PostCom suggests an alternative
procedure to temporarily suspend
enforcement of the rule as opposed to
formally rescinding portions of this
rulemaking.
When promulgating the final rule
concerning mail preparation changes,
the Commission intended for it to apply
regardless of how the Court modified
the standard. Order No. 4393 at 14.
However, the Court did not modify the
standard, it vacated it in its entirety.
The components of the procedural rule
in § 3010.23(d)(5) requiring the Postal
Service to provide an affirmative
designation of compliance and setting
an evidentiary burden require the
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existence of a standard. While the
Commission has initiated an advance
notice of proposed rulemaking to gather
proposals for a new standard, the
Commission cannot predict the outcome
of those proceedings. See Order No.
4750.
Although PostCom may be correct
that a temporary suspension of a
procedural rule is within the
Commission’s authority, a rulemaking is
more appropriate for the present
situation. As this procedural rule was
promulgated via notice and comment
rulemaking, the Commission will use
the same process to rescind a major
portion of the rule.8
Accordingly, the Commission adopts
a final rule that rescinds two
components of the rule requiring an
affirmative designation and evidentiary
burden. For the affirmative designation
portion of the rule, the Postal Service
would be unable to designate whether a
particular mail preparation change
requires compliance with
§ 3010.23(d)(2) because it no longer has
a standard to apply to determine
compliance. Similarly, the Postal
Service could not show it made a
correct determination by a
preponderance of the evidence without
having a standard. Parties would also be
unable to rebut the Postal Service’s
determination with information absent a
standard. For these reasons, removing
those portions of the rule is appropriate.
The remaining part of the rule
requires the Postal Service to provide
published notice of all mail preparation
changes in a single source. The
Commission retains this portion of the
rule because it provides notice and
transparency for all mail preparation
changes and does not rely on existence
of a standard.9 As noted in the NPR, the
Postal Service has complied with this
requirement and the Postal Service
states in its comments that it will
continue to comply with this portion of
the rule. Accordingly, the Commission
revises § 3010.23(d)(5) to require the
Postal Service to publish notice of all
mail preparation changes in a single,
publically available source.
V. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act
requires federal agencies, in
promulgating rules, to consider the
impact of those rules on small entities.
See 5 U.S.C. 601, et seq. (1980). If the
proposed or final rules will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities, the head of the
agency may certify that the initial and
final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do
not apply. See 5 U.S.C. 605(b).
The Commission’s primary
responsibility is in the regulatory
oversight of the United States Postal
Service. The rules that are the subject of
this rulemaking have an impact on
participation in Commission
proceedings, but impose no further
financial obligation upon any entity. For
entities other than the United Stated
Postal Service, participation is strictly
voluntary. Based on these findings, the
Chairman of the Commission certifies
that the rules that are the subject of this
rulemaking will not have a significant
economic impact on a substantial
number of small entities. Therefore,
pursuant to 5 U.S.C. 605(b), this
rulemaking is exempt from the initial
and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604.
VI. Ordering Paragraphs
It is ordered:
1. Part 3010 of title 39, Code of
Federal Regulations, is revised as set
forth below the signature of this Order,
effective 30 days after publication in the
Federal Register.
2. The Secretary shall arrange for
publication of this Order in the Federal
Register.
By the Commission.
Stacy L. Ruble,
Secretary.
List of Subjects in 39 CFR Part 3010
Administrative practice and
procedure, Postal Service.
For the reasons discussed in the
preamble, the Commission amends
chapter III of title 39 of the Code of
Federal Regulations as follows:
Part 3010—REGULATION OF RATES
FOR MARKET DOMINANT PRODUCTS
1. The authority citation of part 3010
continues to read as follows:
■
Authority: 39 U.S.C. 503; 3662.
2. Amend § 3010.23 by revising
paragraph (d)(5) to read as follows:
■
8 See
Perez v. Mortgage Bankers Ass’n, 135 S.Ct.
1199, 1206 (2015) (citing F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009) (Section 1
of the Administrative Procedure Act mandates that
‘‘agencies use the same procedures when they
amend or repeal a rule as they used to issue the rule
in the first instance.’’)).
9 See also Order No. 4393 at 8–10 (justification for
the reporting requirement).
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§ 3010.23 Calculation of percentage
change in rates.
*
*
*
*
*
(d) * * *
(5) Procedures for mail preparation
changes. The Postal Service shall
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provide published notice of all mail
preparation changes in a single, publicly
available source. The Postal Service
shall file notice with the Commission of
the single source it will use to provide
published notice of all mail preparation
changes.
*
*
*
*
*
[FR Doc. 2018–22477 Filed 10–15–18; 8:45 am]
BILLING CODE 7710–FW–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 81
[EPA–HQ–OAR–2017–0548; FRL–9985–35–
OAR]
RIN 2060–AU29
Air Quality Designations for the 2015
Ozone National Ambient Air Quality
Standards; Corrections
Environmental Protection
Agency (EPA).
ACTION: Correcting amendments.
AGENCY:
The Environmental Protection
Agency (EPA) is correcting errors in the
regulatory text regarding the designation
of certain areas in nine states for the
2015 ozone national ambient air quality
standards (NAAQS). The designation
rules were signed by the EPA
Administrator on November 6, 2017,
and April 30, 2018. The errors include
typographical and formatting errors and
the omission from the regulatory tables
of several counties designated as
attainment/unclassifiable. The EPA is
correcting the errors consistent with the
rulemaking record. The affected areas
are located in California, Illinois,
Indiana, Kentucky, Michigan, Montana,
Ohio, Pennsylvania and Virginia.
DATES: The effective date of this rule is
November 15, 2018.
ADDRESSES: The EPA has established a
docket for the designation actions for
the 2015 ozone NAAQS under Docket
ID No. EPA–HQ–OAR–2017–0548. All
documents in the docket are listed in
the index at https://www.regulations.gov.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
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 in the docket or in hard
copy at the EPA Docket Center, EPA
WJC West Building, Room 3334, 1301
Constitution Avenue NW, Washington,
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SUMMARY:
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DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the Office
of Air and Radiation Docket and
Information Center is (202) 566–1742.
In addition, the EPA has established
a website for the ozone designation
rulemakings at https://www.epa.gov/
ozone-designations. The website
includes the EPA’s final designations, as
well as designation recommendation
letters from states and tribes, the EPA’s
120-letters notifying the states whether
the EPA intends to modify the state’s
recommendation, technical support
documents, responses to comments and
other related technical information.
FOR FURTHER INFORMATION CONTACT:
Denise Scott, Office of Air Quality
Planning and Standards, U.S.
Environmental Protection Agency, Mail
Code C539–01, Research Triangle Park,
NC 27711, phone number (919) 541–
4280 or by email at: scott.denise@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. What are the errors being corrected?
This rule corrects errors in the
regulatory text designating certain areas
for the 2015 ozone NAAQS as provided
in the designation rules signed by the
EPA Administrator on November 6,
2017 (November 16, 2017; 82 FR 54232),
and on April 30, 2018 (June 4, 2018; 83
FR 25776). The EPA is correcting the
errors consistent with the rulemaking
record. The affected areas are located in
California, Illinois, Indiana, Kentucky,
Michigan, Montana, Ohio, Pennsylvania
and Virginia. The corrections for each
state are discussed below and the
corrected regulatory text is provided at
the end of this action.
California
The EPA is correcting two errors in
the regulatory table for California for
designations promulgated in the April
30, 2018, ozone designations rule. The
EPA is moving the entry for the ‘‘Butte
County, CA’’ nonattainment area so that
the area will be listed in alphabetical
order and, thus, will be listed before the
entry for the ‘‘Calaveras County, CA’’
nonattainment area. The EPA is also
correcting a typographical error in the
entry for the ‘‘Pechanga Band of Luisen˜o
Mission Indians of the Pechanga
Reservation’’ nonattainment area by
revising ‘‘Pu’eskaMountain’’ to read
‘‘Pu’eska Mountain.’’
Illinois
The EPA is correcting the regulatory
table for Illinois to include McHenry
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52157
County and Monroe County as
attainment/unclassifiable areas. The
EPA is adding those counties to the
regulatory table, consistent with the
rulemaking record for the April 30,
2018, ozone designations rule. The EPA
is also moving the entry for ‘‘Bond
County’’ so that it will be listed in
alphabetical order and, thus, will be
listed before the entry for ‘‘Boone
County.’’
McHenry County, Illinois, is part of
the Chicago-Naperville, Illinois-IndianaWisconsin (IL-IN-WI), Combined
Statistical Area (CSA).1 The EPA’s final
Technical Support Document (TSD) for
the Chicago-Naperville, IL-IN-WI
nonattainment area states that, ‘‘EPA’s
area of analysis is the ChicagoNaperville, IL-IN-WI CSA, which
includes the following 19 counties:
Bureau, Cook, DeKalb, DuPage, Grundy,
Kane, Kankakee, Kendall, Lake, LaSalle,
McHenry, Putnam, and Will in Illinois,
Jasper, Lake, LaPorte, Newton, and
Porter in Indiana, and Kenosha in
Wisconsin. The EPA applied the five
factors recommended in its guidance to
the area of analysis to determine the
nonattainment boundary.’’ In the TSD
section, ‘‘Conclusion for the Chicago, ILIN-WI Area,’’ the EPA identified the
portions of Illinois that were being
designated as part of the nonattainment
area and stated, ‘‘All remaining Illinois
portions of the Chicago-Naperville, ILIN-WI CSA are designated consistent
with the Illinois’ recommendations as
attainment/unclassifiable for the 2015
ozone NAAQS: Bureau, DeKalb,
Kankakee, LaSalle, McHenry, and
Putnam Counties.* * *’’ The EPA’s
final TSD for the Chicago-Naperville, ILIN-WI nonattainment area is located in
the docket for the April 30, 2018,
designations rule (document number
EPA-HQ-OAR-2017-0548-0418) and is
the key document setting forth the
designations for the Chicago-Naperville,
IL-IN-WI CSA.
Monroe County, Illinois, is part of the
St. Louis, Missouri-Illinois (MO-IL) Core
Based Statistical Area (CBSA). The
EPA’s final TSD for the St. Louis, MOIL nonattainment area states, ‘‘The EPA
1 Lists of Core Based Statistical Areas and
Combined Statistical Areas and their geographic
components are provided at https://
www.census.gov/programs-surveys/metro-micro/
about/omb-bulletins.html. The Office of
Management and Budget (OMB) adopts standards
for defining statistical areas. The statistical areas are
delineated based on United States Census Bureau
data. The lists are periodically updated by the
OMB. The EPA used the July 2015 update (OMB
Bulletin No. 15–01), which is based on application
of the 2010 OMB standards to the 2010 Census,
2006–2010 American Community Survey, as well as
2013 Population Estimates Program data.
E:\FR\FM\16OCR1.SGM
16OCR1
]]>Agencies
[Federal Register Volume 83, Number 200 (Tuesday, October 16, 2018)]
[Rules and Regulations]
[Pages 52154-52157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22477]
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POSTAL REGULATORY COMMISSION
39 CFR Part 3010
[Docket No. RM2016-6; Order No. 4850]
Mail Preparation Changes
AGENCY: Postal Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Commission adopts a final rule concerning mail preparation
changes. The rule as adopted removes reference to procedures relying on
the existence of a substantive standard for mail preparation changes in
response to the recent decision in United States Postal Serv. v. Postal
Reg. Comm'n, 886 F.3d 1253 (D.C. Cir. 2018).
DATES: Effective November 15, 2018.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
[[Page 52155]]
Table of Contents
I. Introduction
II. Background
III. Review of Comments
IV. Commission Analysis
V. Regulatory Flexibility Act Analysis
VI. Ordering Paragraphs
I. Introduction
In this Order, the Commission adopts a final rule concerning mail
preparation changes. The final rule partially rescinds an existing
Commission rule and is located at 39 CFR part 3010. The rule as adopted
removes reference to procedures relying on the existence of a
substantive standard for mail preparation changes in response to the
recent decision in United States Postal Serv. v. Postal Reg. Comm'n,
886 F.3d 1253 (D.C. Cir. 2018).
II. Background
In Order No. 3047, the Commission developed a substantive standard
to determine when a mail preparation change would constitute a ``change
in rates'' under 39 U.S.C. 3622.\1\ The standard established by the
Commission in Order No. 3047 provided that mail preparation changes
could have rate effects when they resulted in the deletion or
redefinition of a rate cell as set forth by Sec. 3010.23(d)(2).
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\1\ The standard in Order No. 3047 was developed in response to
remand from the United States Court of Appeals for the District of
Columbia (the Court) in United States Postal Serv. v. Postal Reg.
Comm'n, 785 F.3d 740 (D.C. Cir. 2015). For a complete history of the
proceedings underlying the Commission's promulgation of a standard
for mail preparation changes, see Docket No. R2013-10, Order on
Price Adjustments for Market Dominant Products and Related Mail
Classification Changes, November 21, 2013, at 5-35 (Order No. 1890);
Docket No. R2013-10R, Order Resolving Issues on Remand, January 22,
2016 (Order No. 3047); Docket No. R2013-10R, Order Resolving Motion
for Reconsideration of Commission Order No. 3047, July 20, 2016
(Order No. 3441).
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In conjunction with Order No. 3047, the Commission initiated a
rulemaking proceeding to develop procedures to ensure that the Postal
Service properly applies the Commission's standard when making a
determination of whether a mail preparation change has a rate
effect.\2\ The final rule created a process that required the Postal
Service to: (1) Provide public notice of all mail preparation changes
in a single source; (2) affirmatively designate whether or not a change
to a mail preparation requirement implicates the price cap; and (3)
show by a preponderance of the evidence, if the designation is
challenged, that the price cap does not apply to the change.\3\ The
Postal Service filed petitions for review challenging the Commission's
standard in Order No. 3047 and the final rule in Order No. 4393.
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\2\ Order Adopting Final Procedural Rule for Mail Preparation
Changes, January 25, 2018, at 22-23 (Order No. 4393). The Order
Adopting Final Procedural Rule for Mail Preparation Changes was
published in the Federal Register on February 1, 2018. See 83 FR
4585 (Feb. 1, 2018).
\3\ See Petition for Review, United States Postal Serv. v.
Postal Reg. Comm'n, 886 F.3d 1253 (D.C. Cir. 2018); Petition for
Review, United States Postal Serv. v. Postal Reg. Comm'n, No. 18-
1059 (D.C. Cir. Feb. 26, 2018).
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Shortly after the Commission adopted the final rule in this docket,
the Court issued its decision in United States Postal Serv. v. Postal
Reg. Comm'n, 886 F.3d 1253 (D.C. Cir. 2018) vacating the Commission's
standard in Order No. 3047. In response to the Court's decision, the
Commission and the Postal Service filed a joint motion to remand the
petition for review of the final rule back to the Commission for
further proceedings.\4\
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\4\ See Unopposed Motion to Remand Case, United States Postal
Serv. v. Postal Reg. Comm'n, No. 18-1059 (D.C. Cir. May 10, 2018).
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On August 9, 2018, the Commission issued the notice of proposed
rulemaking (NPR), setting forth a proposed rescission to the rule set
forth in Sec. 3010.23(d)(5) that created procedures concerning mail
preparation changes.\5\ The NPR also provided an opportunity for public
comment. Order No. 4751 at 5. The Commission proposed removing the
components of the rule that require existence of a standard in order to
be enforced, specifically: (1) The affirmative designation requirement;
and (2) the evidentiary standard. Id. at 4. As explained in the NPR,
both the affirmative designation and evidentiary burden parts of the
rule were predicated on the existence of a substantive standard. Id. As
that standard was vacated and a new standard does not yet exist, the
proposed rule removed the affirmative designation requirement and
evidentiary burden component from paragraph (d)(5) of this section. In
the NPR, the Commission proposed to retain the publication requirement
of the rule as it would remain independent of any standard. Id.
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\5\ Notice of Proposed Rulemaking, August 9, 2018 (Order No.
4751). On the same day, the Commission filed an advance notice of
proposed rulemaking (ANPR) to seek proposals for a new standard and
process to determine when a mail preparation change requires price
cap compliance in accordance with the Court's decision vacating the
standard. Docket No. RM2018-11, Advance Notice of Proposed
Rulemaking, August 9, 2018 (Order No. 4750). The ANPR was published
in the Federal Register, see 83 FR 40485 (Aug. 15, 2018).
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III. Review of Comments
On September 13, 2018, the Commission received comments in response
to the NPR from the Association for Postal Commerce (PostCom), the
Postal Service, and the Public Representative.\6\
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\6\ Comments of the Association for Postal Commerce, September
13, 2018 (PostCom Comments); United States Postal Service Comments
on Notice of Proposed Rulemaking, September 13, 2018 (Postal Service
Comments); Public Representative Comments on Notice of Proposed
Rulemaking, September 13, 2018 (PR Comments).
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PostCom Comments. PostCom supports the premise behind partial
rescission of the rule, acknowledging that the rule referencing a
standard ``cannot be enforced in the absence of a standard.'' PostCom
Comments at 1. However, PostCom does not support rescission of the rule
at this time. Id. Instead, PostCom suggests the Commission
``temporarily suspend enforcement of the portion of the rule that the
Commission is proposing to eliminate.'' Id.
To support its request for the Commission to temporarily suspend
enforcement of the rule as opposed to rescission through rulemaking,
PostCom points to the Commission's intention to develop an appropriate
standard in a separate rulemaking.\7\ PostCom submits that elimination
of the portion of the rule relying on a substantive standard is
unnecessary because the current procedures ``will apply equally well to
the final standard established by the Commission.'' PostCom Comments at
2. PostCom states that the procedures only rely on the ``existence of''
a substantive standard and not the contents of that substantive
standard. Id. at 3. PostCom points to the fact that the Commission
itself indicated the separation between the substantive standard and
the applicability of the final procedural rule, noting that the
Commission stated that the Court's disagreement with the substantive
standard would not affect the final rule. Id. As a result, PostCom
submits that it is ``imprudent to eliminate these procedures at this
time'' and that elimination of the rule now will only require more
rulemaking in the future should the Commission set a new standard. Id.
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\7\ Id. at 2 (citing Order No. 4751 at 4; Order No. 4750).
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Postal Service Comments. The Postal Service supports partial
rescission of the rule that relies on existence of a substantive
standard. Postal Service Comments at 1-3. In the Postal Service's view,
``compliance with the procedural rule necessarily would require
application of the substantive standard'' for mail preparation changes.
Id. at 2. The Postal Service agrees with the Commission's proposal to
rescind the portion of the rule that ``requires the
[[Page 52156]]
Postal Service affirmatively to designate whether a given mail
preparation change requires compliance with the price cap rules'' and
the portion concerning the evidentiary burden. Id.
The Postal Service also indicates that it has already complied with
the publication requirement that the Commission proposes to retain in
the rule. Id. at 3.
Public Representative Comments. The Public Representative supports
the Commission's proposal to rescind portions of the procedural rule
concerning mail preparation changes ``subject to reinstatement
depending upon the outcome of the Commission's review of the applicable
standard for determining whether a rate increase is in compliance with
Sec. 3010.23(d)(2).'' PR Comments at 1-2.
He notes that it would be futile to require the Postal Service to
affirmatively designate whether a change requires compliance with Sec.
3010.23(d)(2) when there is no standard to measure compliance. Id. at
7. With respect to the evidentiary portion of the rule, requiring the
Postal Service to provide by a preponderance of the evidence that a
mail preparation change does not require compliance with Sec.
3010.23(d)(2), he contends that compliance with this provision would be
``a very difficult proposition without any standard to serve as a
target.'' Id. at 8. Further, parties would be ``unable to determine the
information needed to rebut the Postal Service's determination''
without an operative standard. Id.
The Public Representative also supports the Commission's retention
of the single source reporting requirement. Id. at 5-6.
IV. Commission Analysis
The comments reflect general support for the removal of portions of
the procedural rule concerning mail preparation changes that rely on
the existence of a substantive standard. PostCom suggests an
alternative procedure to temporarily suspend enforcement of the rule as
opposed to formally rescinding portions of this rulemaking.
When promulgating the final rule concerning mail preparation
changes, the Commission intended for it to apply regardless of how the
Court modified the standard. Order No. 4393 at 14. However, the Court
did not modify the standard, it vacated it in its entirety. The
components of the procedural rule in Sec. 3010.23(d)(5) requiring the
Postal Service to provide an affirmative designation of compliance and
setting an evidentiary burden require the existence of a standard.
While the Commission has initiated an advance notice of proposed
rulemaking to gather proposals for a new standard, the Commission
cannot predict the outcome of those proceedings. See Order No. 4750.
Although PostCom may be correct that a temporary suspension of a
procedural rule is within the Commission's authority, a rulemaking is
more appropriate for the present situation. As this procedural rule was
promulgated via notice and comment rulemaking, the Commission will use
the same process to rescind a major portion of the rule.\8\
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\8\ See Perez v. Mortgage Bankers Ass'n, 135 S.Ct. 1199, 1206
(2015) (citing F.C.C. v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009) (Section 1 of the Administrative Procedure Act
mandates that ``agencies use the same procedures when they amend or
repeal a rule as they used to issue the rule in the first
instance.'')).
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Accordingly, the Commission adopts a final rule that rescinds two
components of the rule requiring an affirmative designation and
evidentiary burden. For the affirmative designation portion of the
rule, the Postal Service would be unable to designate whether a
particular mail preparation change requires compliance with Sec.
3010.23(d)(2) because it no longer has a standard to apply to determine
compliance. Similarly, the Postal Service could not show it made a
correct determination by a preponderance of the evidence without having
a standard. Parties would also be unable to rebut the Postal Service's
determination with information absent a standard. For these reasons,
removing those portions of the rule is appropriate.
The remaining part of the rule requires the Postal Service to
provide published notice of all mail preparation changes in a single
source. The Commission retains this portion of the rule because it
provides notice and transparency for all mail preparation changes and
does not rely on existence of a standard.\9\ As noted in the NPR, the
Postal Service has complied with this requirement and the Postal
Service states in its comments that it will continue to comply with
this portion of the rule. Accordingly, the Commission revises Sec.
3010.23(d)(5) to require the Postal Service to publish notice of all
mail preparation changes in a single, publically available source.
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\9\ See also Order No. 4393 at 8-10 (justification for the
reporting requirement).
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V. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act requires federal agencies, in
promulgating rules, to consider the impact of those rules on small
entities. See 5 U.S.C. 601, et seq. (1980). If the proposed or final
rules will not, if promulgated, have a significant economic impact on a
substantial number of small entities, the head of the agency may
certify that the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply. See 5 U.S.C. 605(b).
The Commission's primary responsibility is in the regulatory
oversight of the United States Postal Service. The rules that are the
subject of this rulemaking have an impact on participation in
Commission proceedings, but impose no further financial obligation upon
any entity. For entities other than the United Stated Postal Service,
participation is strictly voluntary. Based on these findings, the
Chairman of the Commission certifies that the rules that are the
subject of this rulemaking will not have a significant economic impact
on a substantial number of small entities. Therefore, pursuant to 5
U.S.C. 605(b), this rulemaking is exempt from the initial and final
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
VI. Ordering Paragraphs
It is ordered:
1. Part 3010 of title 39, Code of Federal Regulations, is revised
as set forth below the signature of this Order, effective 30 days after
publication in the Federal Register.
2. The Secretary shall arrange for publication of this Order in the
Federal Register.
By the Commission.
Stacy L. Ruble,
Secretary.
List of Subjects in 39 CFR Part 3010
Administrative practice and procedure, Postal Service.
For the reasons discussed in the preamble, the Commission amends
chapter III of title 39 of the Code of Federal Regulations as follows:
Part 3010--REGULATION OF RATES FOR MARKET DOMINANT PRODUCTS
0
1. The authority citation of part 3010 continues to read as follows:
Authority: 39 U.S.C. 503; 3662.
0
2. Amend Sec. 3010.23 by revising paragraph (d)(5) to read as follows:
Sec. 3010.23 Calculation of percentage change in rates.
* * * * *
(d) * * *
(5) Procedures for mail preparation changes. The Postal Service
shall
[[Page 52157]]
provide published notice of all mail preparation changes in a single,
publicly available source. The Postal Service shall file notice with
the Commission of the single source it will use to provide published
notice of all mail preparation changes.
* * * * *
[FR Doc. 2018-22477 Filed 10-15-18; 8:45 am]
BILLING CODE 7710-FW-P
