Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Proposed Rules 40485 

1 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). In this docket, the 

Commission briefly sets out the relevant history 

supporting the request for comment. For a complete 

history of the Commission proceedings leading up 

to this docket, please see 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 Docket No. R2013–10R, Order Establishing 

Procedures on Remand and Requesting Public 

Comment, July 15, 2015 (Order No. 2586). 

otherwise placed together so as to form 

an enclosure of two or more sides, etc. 

(xi) No permit will be issued for a 

demonstration on the White House 

Sidewalk and in Lafayette Park at the 

same time except when the 

organization, group, or other sponsor of 

such demonstration undertakes in good 

faith all reasonable action, including the 

provision of sufficient marshals, to 

insure good order and self-discipline in 

conducting such demonstration and any 

necessary movement of persons, so that 

the numerical limitations and waiver 

provisions described in paragraphs 

(g)(5)(ix) and (x) of this section are 

observed. 

(xii) In addition to the general 

limitations in this paragraph (g)(5), 

sound systems shall be directed away 

from the Vietnam Veterans Memorial at 

all times. 

(6) Permit revocation. The Regional 

Director or the ranking U.S. Park Police 

supervisory official in charge may 

revoke a permit or part of a permit for 

any violation of its terms or conditions, 

or if the event presents a clear and 

present danger to the public safety, good 

order, or health, or for any violation of 

applicable law or regulation. Any such 

revocation shall be in writing. 

* * * * * 

David L. Bernhardt, 

Deputy Secretary. 

[FR Doc. 2018–17386 Filed 8–14–18; 8:45 am] 

BILLING CODE 4312–52–P 

POSTAL REGULATORY COMMISSION 

39 CFR Part 3010 

[Docket No. RM2018–11; Order No. 4750] 

Mail Preparation Changes 

AGENCY: Postal Regulatory Commission. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: The Commission is initiating 

a review to determine when a mail 

preparation change is a rate change. 

This document informs the public of the 

docket’s initiation, invites public 

comment, and takes other 

administrative steps. 

DATES: Comments are due on or before 

October 15, 2018. 

ADDRESSES: Submit comments 

electronically via the Commission’s 

Filing Online system at http://

www.prc.gov. Those who cannot submit 

comments electronically should contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section by 

telephone for advice on filing 

alternatives. 

FOR FURTHER INFORMATION CONTACT: 

David A. Trissell, General Counsel, at 

202–789–6820. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. Background 

III. Request for Comments 

I. Introduction 

The Commission initiates this 

advance notice of proposed rulemaking 

(ANPR) to seek proposals for a standard 

and process to determine when a mail 

preparation change is a ‘‘changes in 

rates’’ under 39 U.S.C. 3622 in 

accordance with the recent decision in 

United States Postal Serv. v. Postal Reg. 

Comm’n, 886 F.3d 1253 (D.C. Cir. 2018) 

(IMb Opinion). 

II. Background 

The Commission continues to 

maintain that certain mail preparation 

changes are rate changes, and those 

changes should be regulated under 39 

U.S.C. 3622. As participants in past 

associated dockets are aware, the issues 

involved in regulating mail preparation 

changes as ‘‘changes in rates’’ under 39 

U.S.C. 3622 are varied and complex. 

The process involved in crafting a 

workable standard for regulating mail 

preparation changes under the price cap 

has been difficult and time-consuming. 

However, this difficulty does not 

necessarily render the efforts to create a 

standard futile. Accordingly, the 

Commission issues this ANPR 

requesting proposals from commenters 

for a standard and process to determine 

when an individual mail preparation 

change is a ‘‘change in rates’’ under 39 

U.S.C. 3622 that is consistent with the 

recent guidance set forth in the IMb 

Opinion. 

In Docket No. R2013–10R, the 

Commission determined that a change 

to the Intelligent Mail barcoding (IMb) 

requirements was a rate change 

requiring compliance with the price cap 

under 39 U.S.C. 3622.1 The Postal 

Service appealed the Commission’s 

determination to 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, 

751 (D.C. Cir. 2015), the Court affirmed 

the Commission’s conclusion that 

‘‘changes in rates’’ under 39 U.S.C. 3622 

could include changes to mail 

preparation requirements and were not 

limited to ‘‘only changes to the official 

posted prices of each product.’’ 

However, the Court remanded the 

matter to the Commission so that it 

could articulate an intelligible standard 

to determine when a mail preparation 

change was a ‘‘change in rates’’ subject 

to the price cap. Id. at 744. 

In response to the Court’s remand, the 

Commission initiated proceedings to 

establish a standard to be used for the 

regulation of mail preparation changes 

as ‘‘changes in rates.’’ 2 As a result of 

those proceedings, the Commission 

issued Order No. 3047, which set forth 

a standard to determine when a mail 

preparation change requires compliance 

with the price cap. The standard 

established in Order No. 3047 provided 

that a mail preparation change could 

have a rate effect when it resulted in the 

deletion or redefinition of rate cells as 

set forth by § 3010.23(d)(2). 

In establishing the standard set forth 

in Order No. 3047, the Commission 

used its regulation, § 3010.23(d)(2), to 

provide the framework. Section 

3010.23(d)(2) provides that a 

classification change will have a rate 

effect when it results in the 

introduction, deletion, or redefinition of 

a rate cell. Under the Commission’s 

rules, the Postal Service must include 

the effects of those classification 

changes in its calculation of the 

percentage change in rates under the 

price cap. 39 CFR 3010.23(d)(2). The 

standard in Order No. 3047 defined 

when a mail preparation change would 

be considered a classification change 

with rate effects under § 3010.23(d)(2). 

The standard set forth that deletion of 

a rate cell occurs when a mail 

preparation change caused the 

elimination of a rate, or the functional 

equivalent of an elimination of a rate by 

making the rate cell inaccessible to 

mailers. Order No. 3047 at 15. The 

standard defined redefinition of a rate 

cell to occur when a mail preparation 

change caused a significant change to a 

basic characteristic of a mailing, 

effectively changing the nature of the 

rate cell. For redefinition, the 

Commission stated that it would apply 

a significance analysis to determine at 

what point on the spectrum a mail 

preparation change caused a rate cell to 

be redefined under § 3010.23(d)(2). Id. 


daltland on DSKBBV9HB2PROD with PROPOSALS
40486 Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Proposed Rules 

3 In conjunction with Order No. 3047, the 

Commission initiated a separate rulemaking 

proceeding to develop a procedural rule that would 

ensure the Postal Service properly accounted for the 

rate effects of mail preparation changes in 

accordance with the Commission’s standard 

articulated in Order No. 3047. Docket No. RM2016– 

6, Notice of Proposed Rulemaking on Motions 

Concerning Mail Preparation Changes, January 22, 

2016, at 1–2 (Order No. 3048). The Notice of 

Proposed Rulemaking on Motions Concerning Mail 

Preparation Changes was published in the Federal 

Register on February 1, 2016. See 81 FR 5085 

(February 1, 2016). The rulemaking resulted in a 

final procedural rule concerning mail preparation 

changes. See Docket No. RM2016–6, Order 

Adopting Final Procedural Rule for Mail 

Preparation Changes, at 22–23, January 25, 2018 

(Order No. 4393). The Order Adopting Final 

Procedural Rule for Mail Preparation Changes was 

published in the Federal Register on March 5, 2018. 

See 83 FR 4585 (March 5, 2018). That rule is being 

revised as a result of the IMb Opinion. 

4 Docket No. R2013–10R, Motion for 

Reconsideration of Order No. 3047, February 22, 

2016. 

5Petition for Review, United States Postal Serv. 

v. Postal Reg. Comm’n, 886 F.3d 1253 (D.C. Cir. 

2018). 

at 16–17. Using these parameters, when 

a mail preparation change caused a rate 

cell to be deleted or redefined, it would 

constitute a rate change requiring 

compliance with the price cap.3

After Order No. 3047 was issued, the 

Postal Service requested the 

Commission reconsider its decision.4 In 

response, the Commission issued Order 

No. 3441 resolving the Postal Service’s 

request for reconsideration and 

maintaining the standard as articulated 

in Order No. 3047. The Postal Service 

then petitioned the Court for review of 

the revised standard set forth in Order 

Nos. 3047 and 3441.5

The Court issued its decision and 

vacated the Commission’s standard in 

Order Nos. 3047 and 3441. IMb Opinion 

at 1255. In its decision, the Court 

concluded that the Commission’s 

standard to determine when a mail 

preparation change was a rate change 

rested on an unreasonable interpretation 

of ‘‘changes in rates’’ under 39 U.S.C. 

3622 that went beyond the meaning of 

the statute. Id. 

In its opinion, the Court referred to its 

previous decision in 2015 to remand the 

matter to the Commission, stating that 

this decision ‘‘laid down a marker for 

what might qualify as rates and ‘changes 

in rates.’ Time and again [it] tied ‘rates’ 

to payments by mailers to the Postal 

Service, and ‘changes in rates’ to 

changes in those payments.’’ Id. at 1256. 

The Court explained that its 2015 

decision affirmed the Commission’s 

authority to regulate changes in posted 

prices and changes in mail preparation 

requirements because both could cause 

a change in rates paid by the mailer. Id. 

However, the Court vacated the 

Commission’s standard set forth in 

Order No. 3047 because it viewed the 

standard as improperly regulating 

changes to mailers’ costs as opposed to 

the price mailers pay. The Court stated 

that the standard cannot look ‘‘solely to 

mailer costs . . . without comparing 

those costs to the additional payment a 

mailer would avoid by making the mail 

preparation change’’ in order to predict 

whether mailers will pay a higher rate. 

Id. at 1260 (emphasis in original). 

Although the Court’s IMb Opinion 

vacated the standard set forth by the 

Commission, it did not abrogate the 

Commission’s authority to regulate mail 

preparation as ‘‘changes in rates’’ under 

the statute. Rather, the Court disagreed 

with the Commission’s approach and 

found that the Commission’s standard 

did not answer the question of whether 

a change to a mail preparation change 

would cause a mailer to pay a higher 

rate. The Court did not endorse any 

particular method to determine when a 

mail preparation change is a ‘‘change in 

rates’’ under 39 U.S.C. 3622, but 

provided its views on approaches that 

could potentially conform to the statute. 

In order to find that a mail 

preparation change is a rate change 

under 39 U.S.C. 3622, the Court 

indicated that the standard should be 

able to ‘‘single out mail preparation 

changes that induce mailers to shift to 

a higher-priced service.’’ Id. at 1259. 

The Court suggested that the 

Commission could have ‘‘tried to 

integrate mail preparation requirements 

into its authority over ‘changes in rates’ 

with the following argument: Where an 

increase in mail preparation 

requirements for one cell will drive 

mailers to use a higher-priced cell, the 

resulting increase in volume in the latter 

should count against the rate cap.’’ IMb 

Opinion at 1256 (emphasis in original). 

The Court qualified this opinion by 

stating that it identified ‘‘this approach 

not in order to offer any final judgment 

on it but to indicate how treating a 

change in mail preparation 

requirements as a rate change might, as 

a matter of arithmetic, be integrated 

with the Commission’s system of 

volumetric assessment.’’ Id. 

As suggested by the Court, the 

standard must look to predict mailer 

behavior in response to the mail 

preparation change in order to ‘‘single 

out mail preparation changes that 

induce mailers to shift to a higherpriced service.’’ Id. at 1259. To do so, 

the Court indicated that the Commission 

would have to compare mailers’ 

compliance costs with the offsetting rate 

benefit in order to determine whether 

mailers would be driven to a higher rate 

cell and pay a higher rate. Id. at 1260. 

The Court acknowledged the complexity 

of this potential approach, especially 

where the mailer ‘‘costs (however 

estimated) would have to be compared 

with a benchmark—the rate increment 

faced by mailers—that would be quite 

precise.’’ Id. 

In response to the IMb Opinion, the 

Commission is continuing to explore 

whether a workable standard can be 

developed in order to determine when 

a mail preparation change is a rate 

change. The Commission seeks 

comment on the possibility of crafting a 

standard that would not only comport 

with the Court’s decision but also be 

workable in the context of the 

Commission’s proceedings. 

III. Request for Comments 

The Commission requests comments 

from interested parties to propose a 

standard and process to determine when 

a mail preparation change is a rate 

change under 39 U.S.C. 3622 that 

comports with the IMb Opinion. In 

proposing a new standard, commenters 

should respond to the parameters and 

guidance set forth by the Court in the 

recent IMb Opinion and explain how the 

suggested standard is consistent with 

those parameters. Specifically, 

commenters should propose a standard 

that could be used to predict ‘‘possible 

mailer migration to higher-priced 

products’’ to determine when a mail 

preparation change results in a ‘‘change 

in rates’’ under 39 U.S.C. 3622. In 

addition to comments proposing a 

standard in line with the IMb Opinion, 

commenters should propose a practical 

process for the Commission to 

determine and resolve disputes over 

whether a mail preparation change is a 

rate change. 

In creating a new docket for this 

proceeding, the Commission 

acknowledges that although the issue 

before the Commission centered on the 

Postal Service’s change to the IMb 

requirements in Docket No. R2013–10, 

the standard eventually adopted by the 

Commission will apply to all future 

mail preparation changes. The 

Commission appreciates the complex 

nature of this issue and the input 

provided by commenters in previous 

attempts to establish a workable 

standard to regulate mail preparation 

changes as rate changes. 

Initial comments are due no later than 

60 days after the date of publication of 

this document in the Federal Register. 

After reviewing the initial comments, 

the Commission will decide if reply 

comments are necessary. Commission 

rules require that comments (including 

reply comments) be filed online 

according to the process outlined at 39 

CFR 3001.9(a), unless a waiver is 


daltland on DSKBBV9HB2PROD with PROPOSALS
Federal Register / Vol. 83, No. 158 / Wednesday, August 15, 2018 / Proposed Rules 40487 

obtained. Additional information 

regarding how to submit comments 

online can be found at: http://

www.prc.gov/how-to-participate. All 

comments accepted will be made 

available on the Commission’s website, 

http://www.prc.gov. 

Pursuant to 39 U.S.C. 505, Kenneth E. 

Richardson is designated as an officer of 

the Commission (Public Representative) 

to represent the interests of the general 

public in this proceeding. 

It is ordered: 

1. Interested persons may submit 

initial comments no later than 60 days 

from the date of the publication of this 

document in the Federal Register. 

2. Pursuant to 39 U.S.C. 505, the 

Commission appoints Kenneth R. 

Moeller to serve as an officer of the 

Commission (Public Representative) to 

represent the interests of the general 

public in this docket. 

3. The Secretary shall arrange for 

publication of this Order in the Federal 

Register. 

By the Commission. 

Stacy L. Ruble, 

Secretary. 

[FR Doc. 2018–17498 Filed 8–14–18; 8:45 am] 

BILLING CODE 7710–FW–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2015–0700; FRL–9982– 

28—Region 5] 

Air Plan Approval; Indiana; Attainment 

Plan for Indianapolis, Southwest 

Indiana, and Terre Haute SO2

Nonattainment Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

as a State Implementation Plan (SIP) 

revision an Indiana submission to EPA 

dated October 2, 2015. The submission 

addresses attainment of the 2010 sulfur 

dioxide (SO2) national ambient air 

quality standard (NAAQS) for the 

Indianapolis (Marion County), 

Southwest Indiana (Daviess and Pike 

Counties), and Terre Haute (Vigo 

County) areas. Indiana also submitted a 

SIP revision request for the Morgan 

County area. In this proposed action, 

EPA is not addressing the Morgan 

County portion of the SIP revision 

request, and will address it separately in 

a future action. This plan (herein called 

a ‘‘nonattainment plan’’) includes 

Indiana’s attainment demonstration and 

other elements required under the Clean 

Air Act (CAA). In addition to an 

attainment demonstration, the 

nonattainment plan addresses the 

requirement for meeting reasonable 

further progress (RFP) toward 

attainment of the NAAQS, reasonably 

available control measures and 

reasonably available control technology 

(RACM/RACT), base-year and 

projection-year emission inventories, 

enforceable emissions limitations and 

control measures, and contingency 

measures. EPA proposes to conclude 

that Indiana has appropriately 

demonstrated that the plan provisions 

provide for attainment of the 2010 SO2

NAAQS in the Indianapolis, Southwest 

Indiana, and Terre Haute areas by the 

applicable attainment date and that the 

plan meets the other applicable 

requirements under the CAA. 

DATES: Comments must be received on 

or before September 14, 2018. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2015–0700 at http://

www.regulations.gov, or via email to 

aburano.douglas@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Becker, Life Scientist, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–3901, 

becker.michelle@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. The following outline is provided 

to aid in locating information in this 

preamble. 

Table of Contents 

I. Why was Indiana required to submit an 

SO2 plan for Indianapolis, Southwest 

Indiana, and Terre Haute? 

II. Requirements for SO2 Nonattainment Area 

Plans 

III. Requirements for Attainment 

Demonstrations and Longer-Term 

Averaging 

IV. Review of Indiana’s Modeled Attainment 

Plans 

A. Model Selection 

B. Meteorological Data 

C. Emissions Data 

D. Emission Limits 

1. Enforceability 

2. Longer Term Average Limits 

E. Background Concentrations 

F. Comments Made During State 

Rulemaking 

G. Summary of Results 

V. Review of Other Plan Requirements 

A. Emissions Inventory 

B. RACM/RACT 

C. New Source Review (NSR) 

D. RFP 

E. Contingency Measures 

VI. EPA’s Proposed Action 

VII. Incorporation by Reference 

VIII. Statutory and Executive Order Reviews 

I. Why was Indiana required to submit 

an SO2 plan for Indianapolis, 

Southwest Indiana, and Terre Haute? 

On June 22, 2010, EPA promulgated a 

new 1-hour primary SO2 NAAQS of 75 

parts per billion (ppb), which is met at 

an ambient air quality monitoring site 

when the 3-year average of the annual 

99th percentile of daily maximum 1- 

hour average concentrations does not 

exceed 75 ppb, as determined in 

accordance with appendix T of 40 CFR 

part 50. See 75 FR 35520, codified at 40 

CFR 50.17(a)–(b). On August 5, 2013, 

EPA designated a first set of 29 areas of 

the country as nonattainment for the 

2010 SO2 NAAQS, including the 

Indianapolis (Marion County), Morgan 

County, Southwest Indiana (Daviess and 

Pike Counties), and Terre Haute (Vigo 

County) areas within Indiana. See 78 FR 

47191, codified at 40 CFR part 81, 

subpart C. These area designations were 

effective October 4, 2013. Section 191(a) 

of the CAA directs states to submit SIPs 

for areas designated as nonattainment 

for the SO2 NAAQS to EPA within 18 

months of the effective date of the 

designation, i.e., by no later than April 

4, 2015 in this case. Under CAA section 

192(a), the states are required to 


daltland on DSKBBV9HB2PROD with PROPOSALS