23176 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

1 Docket No. N75–1, Retail Analysis for Facilities 

Development Program; Docket No. N75–2, Changes 

in Operating Procedures Affecting First-Class Mail 

and Airmail; Docket No. N86–1, Change in Service, 

1986, Collect on Delivery Service; Docket No. N89– 

1, Change in Service, 1989, First-Class Delivery 

Standards Realignment; Docket No. N2006–1, 

Evolutionary Network Development Service 

Changes, 2006. 

2 Docket No. N2009–1, Station and Branch 

Optimization and Consolidation Initiative, 2009; 

Docket No. N2010–1, Six-Day to Five-Day Street 

Delivery and Related Service Changes, 2010; Docket 

No. N2011–1, Retail Access Optimization Initiative, 

2011; Docket No. N2012–1, Mail Processing 

Network Rationalization Service Changes, 2012. 

3 Docket No. N2009–1, Station and Branch 

Optimization and Consolidation Initiative, 2009; 

Docket No. N2010–1, Six-Day to Five-Day Street 

Delivery and Related Service Changes, 2010; Docket 

No. N2011–1, Retail Access Optimization Initiative, 

2011. 

4 In Docket No. N2009–1, the Postal Service filed 

its request on July 2, 2009, and the Commission 

issued its advisory opinion 8 months later on March 

10, 2010. In Docket No. N2010–1, the Postal Service 

filed its request on March 30, 2010, and the 

Commission issued its advisory opinion nearly 12 

months later on March 24, 2011. In Docket No. 

N2011–1, the Postal Service filed its request on July 

27, 2011, and the Commission issued its advisory 

opinion almost 5 months later on December 23, 

2011. 

to the extent that the system is exempt 

from other specific subsections of the 

Privacy Act. 

(13) From subsection (h) when 

application of those provisions could 

impede or compromise an ongoing 

criminal investigation, interfere with a 

law enforcement activity, reveal an 

investigatory technique or confidential 

source, invade the privacy of a person 

who provides information for an 

investigation, or endanger law 

enforcement personnel. 

Dated: March 12, 2012. 

Nancy C. Libin, 

Chief Privacy and Civil Liberties Officer, 

United States Department of Justice. 

[FR Doc. 2012–8769 Filed 4–17–12; 8:45 am] 

BILLING CODE 4410–09–P 

POSTAL REGULATORY COMMISSION 

39 CFR Part 3001 

[Docket No. RM2012–4; Order No. 1309] 

Revisions to Procedural Rules 

AGENCY: Postal Regulatory Commission. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: The Commission is 

establishing a docket to consider 

proposed changes in procedures for 

handling cases under 39 U.S.C. 3661. 

These cases involve changes in the 

nature of postal services which affect 

service on a nationwide or substantially 

nationwide basis. The Commission 

invites comments from interested 

persons on ways to improve and 

expedite its procedures, consistent with 

due process. Following review of the 

comments, the Commission may 

institute a rulemaking proceeding to 

consider adoption of updated 

procedures. 

DATES: Comments Date: June 18, 2012. 

Reply Comment Date: July 17, 2012. 

ADDRESSES: Submit comments 

electronically by accessing the ‘‘Filing 

Online’’ link in the banner at the top of 

the Commission’s Web site (http:// 

www.prc.gov) or by directly accessing 

the Commission’s Filing Online system 

at https://www.prc.gov/prc-pages/filingonline/login.aspx. Commenters who 

cannot submit their views electronically 

should contact the person identified in 

the FOR FURTHER INFORMATION CONTACT

section as the source for case-related 

information for advice on alternatives to 

electronic filing. 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Sharfman, General Counsel, 

at 202–789–6820 (case-related 

information) or DocketAdmins@prc.gov 

(electronic filing assistance). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Legal Requirements 

III. Commission’s Section 701 Report 

IV. Commission’s Authority To Modify 

Procedures 

V. Comment Procedures 

VI. Ordering Paragraphs 

I. Background 

The Commission is soliciting 

comments on its current procedures 

under 39 U.S.C. 3661 for reviewing 

proposals by the Postal Service to make 

changes in the nature of postal services. 

After reviewing the comments 

submitted in this proceeding, the 

Commission may institute rulemaking 

proceedings to consider the adoption of 

new, updated procedures for processing 

nature of service cases. The goal of any 

such changes would be to increase the 

efficiency and timely resolution of 

nature of service cases while protecting 

the rights of all participants, including 

affected mail users. 

In this proceeding, the Commission 

welcomes comments on (1) whether 

changes to the current procedures and 

regulations are warranted; (2) if so, what 

those changes would be; and (3) such 

other relevant subjects as commenters 

may wish to address. 

Nature of service proceedings 

conducted pursuant to 39 U.S.C. 3661 

have traditionally been referred to as 

‘‘N-cases.’’ In N-cases, the Commission 

issues advisory opinions on proposals 

by the Postal Service for ‘‘a change in 

the nature of postal services which will 

generally affect service on a nationwide, 

or substantially nationwide basis 

* * *.’’ 39 U.S.C. 3661(b). 

The Commission’s authority to 

conduct N-cases was originally 

established by the Postal Reorganization 

Act of 1970, Public Law 91–375, August 

12, 1970 (PRA). Five N-cases were 

initiated between the enactment of the 

PRA in 1970 and the passage 36 years 

later of the Postal Accountability and 

Enhancement Act (PAEA), Public Law 

109–435, 120 Stat. 3219 (2006).1 In the 

5 years since passage of the PAEA, the 

Commission has docketed four N-cases.2

The varying degrees of complexity 

presented by N-cases affects the time 

required to issue advisory opinions. 

Ordinarily, cases that present the most 

far-reaching implications to mailers 

require more extensive procedures and 

a greater time between the initial filing 

and the issuance of an advisory opinion 

by the Commission. To date, the 

Commission has issued advisory 

opinions in three of the four N-cases 

instituted since enactment of the 

PAEA.3 The length of those proceedings 

ranged from a low of 5 months in 

Docket No. N2011–1 to a high of 12 

months in Docket No. N2010–1.4 The 

fourth post-PAEA proceeding was filed 

on December 5, 2011, and remains 

pending. 

Recently, the Postal Service has found 

itself in an extremely challenging 

financial situation, and is seeking to act 

quickly to remedy its financial 

difficulties. The Postal Service has 

expressed a need for a more expeditious 

hearing process for N-cases in light of its 

present financial situation. Thus, the 

Commission is soliciting comments on 

the advisability of adjusting N-case 

procedures in ways that allow more 

timely and relevant advisory opinions. 

II. Legal Requirements 

A. 39 U.S.C. 3661 

If the Postal Service determines that a 

change in the nature of its services that 

will affect mail users on a nationwide or 

substantially nationwide basis may be 

called for, it must, prior to 

implementation, submit a proposal to 

the Commission requesting an advisory 

opinion on the proposed changes. 39 

U.S.C. 3661(b). After the request is 

submitted, the Postal Service, mail 

users, and an officer of the Commission 

required to represent the interests of the 

general public must be afforded an 

opportunity for a hearing on the record 

in accordance with the provisions of 5 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 23177 

5Section 701 Report Analysis of the Postal 

Accountability and Enhancement Act of 2006, 

September 22, 2011 (701 Report). The report draws 

its name from section 701 of the PAEA. 

6United States Postal Service Response to 

Commission’s Draft Section 701 Report, September 

16, 2011 (Postal Service Response to 701 Report). 

7The proposed legislation referred to by the 

Postal Service is contained in S.1010, 112th Cong. 

§ 206. The bill discussed by the Postal Service is 

one of several currently pending before Congress. 

8 Docket No. N2012–1, Order Denying Motion for 

Reconsideration of Ruling Establishing Procedural 

Schedule, January 31, 2012 (Order No. 1183). 

U.S.C. 556 and 5 U.S.C. 557. 39 U.S.C. 

3661(c). Those two statutory sections— 

section 556 and section 557—are part of 

the federal Administrative Procedure 

Act. Section 556 sets forth the 

procedures by which administrative 

agencies must conduct evidentiary 

hearings. Section 557 establishes 

requirements for decisions issued in 

those administrative hearings. At the 

conclusion of an N-Case proceeding, the 

Commission must issue a decision in 

the form of a written opinion and must 

include a certification by each 

Commissioner stating that, in the 

Commissioner’s judgment, the opinion 

conforms to the appropriate statutory 

requirements. 39 U.S.C. 3661(c). 

B. Current Procedural Regulations 

The Commission’s procedural rules 

implementing the requirements of 

section 3661 can be found in 39 CFR 

3001.71 through 3001.75. These 

procedural rules were first written in 

1973 and last updated nearly 20 years 

ago. Procedural rules of general 

applicability in subpart A of 39 CFR 

part 3001 also apply. 

III. Commission’s Section 701 Report 

On September 22, 2011, the 

Commission presented an analysis to 

Congress and the President discussing 

how the PAEA is operating and 

recommending measures to improve the 

effectiveness and efficiency of postal 

laws.5 In the 701 Report, the 

Commission recommends that Congress 

consider adding statutory language 

allowing the Postal Service to request 

expedited consideration for timesensitive N-cases and requiring the 

Postal Service to provide a written 

response to Commission advisory 

opinions as well as submitting its 

response to Congress prior to 

implementing such changes in service. 

Id. at 71–85. 

Attached to the 701 Report was a 

Postal Service response to the 

Commission’s recommendations, 

including legislative changes to N-case 

procedures.6 In its response, the Postal 

Service stated its preference for a 

pending legislative proposal which, if 

adopted, would require the Commission 

to issue advisory opinions on Postal 

Service requests within 90 days of filing 

and would remove the formal hearing 

requirement from N-case procedural 

rules.7 Postal Service Response to 701 

Report at 24. The Postal Service 

reiterated the need for expedition in 

handling such cases, while 

acknowledging that the level of 

Commission analysis should be 

consistent with its work in other areas. 

Id. 

IV. Commission’s Authority To Modify 

Procedures 

The Commission has historically 

conducted N-case hearings as formal, 

trial-type proceedings. The Commission 

recently elaborated on this historic 

approach in an order denying a Postal 

Service request for reconsideration of 

the procedural schedule in Docket No. 

N2012–1: 8

Before the Commission is permitted to 

issue an advisory opinion, it is required to 

provide an opportunity for hearing on the 

record * * *. Participants [in this proceeding 

have] justified requests for hearings on the 

record. The Commission has procedures in 

place, both by precedent and rule, to 

implement these [statutory] requirements, 

which provide due process to all 

participants. The procedures are flexible 

enough to accommodate various complexities 

of cases, and levels of controversy, but also 

include procedural steps that once triggered 

require somewhat rigid increments of time 

* * *. A reasonable amount of time, 

consistent with the complexity of the case, 

must be provided for each step to ensure due 

process. 

Order No. 1183 at 2–3. 

The proceedings in Docket No. 

N2012–1, currently under consideration 

by the Commission, highlight the 

challenges that the Commission can face 

in N-cases. In this case, the Commission 

has been presented with a multifaceted 

proposal by the Postal Service with farreaching implications for mail users. 

Parties have urged the Commission to 

permit extensive discovery and 

sufficient time to allow preparation of 

technical rebuttal evidence. The Postal 

Service has emphasized its need for 

expedition. The Commission has had to 

balance the competing concerns for due 

process against the need for expedition. 

In light of the increasing frequency of 

N-cases and their varying degrees of 

complexity, it is appropriate for the 

Commission to re-examine its historic 

practice of conducting N-cases as trialtype proceedings, according participants 

extensive discovery and oral crossexamination opportunities in all cases. 

The authority of regulatory agencies like 

the Commission to revise their 

regulations to place limits on the use of 

formal litigation procedures in certain 

types of cases has been judicially 

recognized. In Citizens Awareness 

Network v. U.S., 391 F.3d 338 (1st Cir. 

2004), the court held that it was a valid 

exercise of agency discretion for the 

Nuclear Regulatory Commission to 

expedite nuclear reactor licensing 

proceedings by changing its longstanding procedural regulations to 

eliminate discovery and restrict crossexamination: 

The APA [Administrative Procedure Act] 

lays out only the most skeletal framework for 

conducting agency adjudications, leaving 

broad discretion to the affected agencies in 

formulating detailed procedural rules 

(citation omitted)* * * short of 

constitutional constraints, a court may not 

impose procedural requirements * * * 

beyond those mandated by statute * * *. 

(Citation omitted). 

Citizens Awareness at 349. 

While procedures differ from agency 

to agency and while changes in those 

procedures require careful consideration 

in the specific statutory and regulatory 

contexts presented, the Citizens 

Awareness decision supports the 

general proposition that agencies have 

flexibility to tailor their procedures to 

make hearing processes more efficient. 

As the court in that case recognized: 

‘‘An agency’s rules, once adopted, are 

not frozen in place. The opposite is true: 

an agency may alter its rules in light of 

its accumulated experience in 

administering them (citation omitted).’’ 

Id. at 351. 

Commenters are encouraged to 

address what form any new procedures 

might take, and what procedural 

safeguards must be preserved to assure 

that meaningful public participation 

and the Commission’s decisions are 

helpful to the Postal Service’s decision 

making process as required by law. 

V. Comment Procedures 

Pursuant to 39 U.S.C. 505, Patricia 

Gallagher is designated as the Public 

Representative in this proceeding to 

represent the interests of the general 

public. 

Interested persons are invited to 

provide written comments and 

suggestions as to how the Commission 

can best fulfill its statutory obligations. 

Comments are due within 60 days of the 

date of publication of this notice in the 

Federal Register. All comments and 

suggestions received will be available 

for review on the Commission’s Web 

site, http://www.prc.gov. Interested 

persons are further invited to review 

these submissions and provide followup comments and suggestions within 30 

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23178 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

additional days of the due date for 

initial comments. 

VI. Ordering Paragraphs 

It is ordered: 

1. Docket No. RM2012–4 is 

established for the purpose of receiving 

comments in advance of developing 

regulations regarding new rules of 

procedure for evaluating requests for 

advisory opinions under 39 U.S.C. 3661. 

2. Interested parties may submit 

comments no later than 60 days from 

the date of publication of this notice in 

the Federal Register. 

3. Reply comments may be filed no 

later than 30 days from the due date for 

initial comments. 

4. Pursuant to 39 U.S.C. 505, Patricia 

Gallagher is appointed to serve as an 

officer of the Commission (Public 

Representative) to represent the 

interests of the general public in this 

proceeding. 

5. The Secretary shall arrange for 

publication of this document in the 

Federal Register. 

By the Commission. 

Shoshana M. Grove, 

Secretary. 

[FR Doc. 2012–9300 Filed 4–17–12; 8:45 am] 

BILLING CODE 7710–FW–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2012–0169; FRL–9660–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Deferral for CO2 Emissions From 

Bioenergy and Other Biogenic Sources 

Under the Prevention of Significant 

Deterioration Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a State Implementation Plan (SIP) 

revision submitted by the Virginia 

Department of Environmental Quality 

(VADEQ) on December 14, 2011. This 

revision proposes to defer until July 21, 

2014 the application of the Prevention 

of Significant Deterioration (PSD) 

permitting requirements to biogenic 

carbon dioxide (CO2) emissions from 

bioenergy and other biogenic stationary 

sources in the Commonwealth of 

Virginia. This action is being taken 

under the Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before May 18, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0169 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: cox.kathleen@epa.gov. 

C. Mail: EPA–R03–OAR–2012–0169, 

Ms. Kathleen Cox, Associate Director, 

Office of Permits and Air Toxics, 

Mailcode 3AP10, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2012– 

0169. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at www.

regulations.gov, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the www.

regulations.gov index. Although listed 

in the index, some information is not 

publicly available, i.e., CBI 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 www.regulations.gov or 

in hard copy during normal business 

hours at the Air Protection Division, 

U.S. Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Talley, (215) 814–2117, or by 

email at talley.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

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

EPA. On December 14, 2011, VADEQ 

submitted a revision to its State 

Implementation Plan (SIP) to maintain 

consistency with Federal greenhouse 

gas (GHG) permitting requirements 

under the PSD program. 

I. Background 

A. The Tailoring Rule 

On June 3, 2010 (effective August 2, 

2010), EPA promulgated a final 

rulemaking, the Tailoring Rule, for the 

purpose of relieving overwhelming 

permitting burdens from the regulation 

of GHG’s that would, in the absence of 

the rule, fall on permitting authorities 

and sources (75 FR 31514). EPA 

accomplished this by tailoring the 

applicability criteria that determine 

which GHG emission sources become 

subject to the PSD program of the CAA. 

In particular, EPA established in the 

Tailoring Rule a phase-in approach for 

PSD applicability and established the 

first two steps of the phase-in for the 

largest GHG-emitters. 

For the first step of the Tailoring Rule, 

which began on January 2, 2011, PSD 

requirements apply to major stationary 

source GHG emissions only if the 

sources are subject to PSD anyway due 

to their emissions of non-GHG 

pollutants. Therefore, in the first step, 

EPA did not require sources or 

modifications to evaluate whether they 

are subject to PSD requirements solely 

on account of their GHG emissions. 

Specifically, for PSD, Step 1 requires 

that as of January 2, 2011, the applicable 

requirements of PSD, most noticeably 

the best available control technology 

(BACT) requirement as defined in CAA 

section 169(3), apply to projects that 

increase net GHG emissions by at least 

75,000 tons per year (tpy) of CO2

equivalent (CO2e), but only if the project 

also significantly increases emissions of 

at least one non-GHG pollutant. CO2e is 

a metric used to compare the emissions 

from various greenhouse gases based 

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