82 FR 16015 - Motions Concerning Mail Preparation Changes
POSTAL REGULATORY COMMISSION Federal Register Volume 82, Issue 61 (March 31, 2017)
Federal Register Volume 82, Issue 61 (March 31, 2017)
| Page Range | 16015-16018 | |
| FR Document | 2017-06355 |
[Federal Register Volume 82, Number 61 (Friday, March 31, 2017)] [Proposed Rules] [Pages 16015-16018] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-06355] ======================================================================= ----------------------------------------------------------------------- POSTAL REGULATORY COMMISSION 39 CFR Part 3010 [Docket No. RM2016-6; Order No. 3827] Motions Concerning Mail Preparation Changes AGENCY: Postal Regulatory Commission. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Commission is noticing the reinstatement of a proposed rulemaking. This notice informs the public of the docket's reinstatement, invites public comment, and takes other administrative steps. DATES: Comments are due on or before May 1, 2017. 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. Comments on Initial NPR III. Revised Proposed Rule IV. Comments Requested I. Introduction On January 22, 2016, the Commission published a notice of proposed rulemaking (initial NPR) which proposed procedural rules for motions concerning mail preparation changes that require compliance with the price cap rules.\1\ The initial NPR was issued in conjunction with the Commission's order in Docket No. R2013-10R setting forth a standard to determine when mail preparation changes require compliance with Sec. 3010.23(d)(2).\2\ In the initial NPR, the Commission explained that the Postal Service has the affirmative burden to determine whether a mail preparation change requires compliance with Sec. 3010.23(d)(2) under the Commission's standard in Order No. 3047.\3\ The initial NPR proposed a procedural rule to permit interested parties to file a motion with the Commission where the Postal Service fails to recognize or account for a mail preparation change that has a rate effect under Sec. 3010.23(d)(2). --------------------------------------------------------------------------- \1\ The initial NPR was published in the Federal Register on February 1, 2016. See 81 FR 5085 (Feb. 1, 2016). \2\ Order No. 3048, Notice of Proposed Rulemaking on Motions Concerning Mail Preparation Changes, January 22, 2016. The initial NPR was held in abeyance pending the Commission's resolution of the Postal Service's motion for reconsideration of Order No. 3047. See Order No. 3096, Order Holding Rulemaking in Abeyance, February 23, 2016. It was reinstated on July 27, 2016, and comments were received on September 2, 2016. See Notice Reinstating Rulemaking, July 27, 2016. \3\ Docket No. R2013-10R, Order Resolving Issues on Remand, January 22, 2016 (Order No. 3047). --------------------------------------------------------------------------- Specifically, the initial proposed rule Sec. 3001.21(d) of this chapter required interested parties to file a motion with the Commission upon actual or constructive notice of a mail preparation change that had a rate effect requiring compliance with Sec. 3010.23(d)(2). It also proposed a 30-day timeframe within which interested parties could file a motion concerning a mail preparation change, after which the Commission would either institute a proceeding or consider the motion within an ongoing matter. In response to comments received on the initial NPR, the Commission is issuing this revised notice of proposed rulemaking (revised NPR) that: (1) Withdraws the proposed procedural rule under Sec. 3001.21(d) of this chapter for motions concerning mail preparation changes; and (2) requires the Postal Service to publish all mail preparation changes in a publicly-available single source and affirmatively designate whether or not a mail preparation change requires compliance with Sec. 3010.23(d)(2). The revised NPR specifies that, if raised by the Commission or challenged by a mailer, the Postal Service must demonstrate by a preponderance of the evidence that a change does not require compliance with Sec. 3010.23(d)(2). The revised NPR narrows the scope of the initial proposed rule and provides an opportunity for public comment on this new proposed approach to ensure that the Postal Service properly accounts for the rate effects of mail preparation changes under Sec. 3010.23(d)(2) in accordance with the Commission's standard articulated in Order No. 3047. II. Comments on Initial NPR The Commission received comments in response to the initial NPR, of which three were from the mailing industry, one was from the Public Representative, and one was from the Postal Service. Most commenters do not oppose the proposed rule, but raise questions about whether it impacts the Commission's authority and responsibility to independently review mail preparation changes for compliance with the price cap rules, or whether mailers could raise issues concerning mail preparation changes in other proceedings before the [[Page 16016]] Commission. Commenters provide input generally on the following issues: (1) The timing provisions and effect on the Commission's independent authority; (2) the multiple sources used by the Postal Service to provide notice of mail preparation changes; (3) the Postal Service's affirmative statement of whether a mail preparation change has a rate impact; and (4) the standard of proof/evidentiary burden. A. Comments on the Timing Provisions and Effect on the Commission's Independent Authority A major area of concern raised by the commenters is the proposed rule's effect on the Commission's independent authority to review mail preparation changes for price cap compliance. Commenters raise questions about the rule's effect on the right to use existing procedures available in rate, annual compliance, and complaint proceedings to challenge the Postal Service's compliance with the price cap. PostCom raises numerous issues with the proposed 30-day time limit and notice provisions set forth in the proposed rule.\4\ PostCom notes that, absent a waiver of the 30-day timeframe in certain circumstances, the 30-day requirement for filing motions conflicts with the Commission's price cap authority and responsibilities under 39 U.S.C. 3662 to hear complaints. PostCom Comments at 5-9. PostCom contends that, although it makes sense to provide mailers with a set procedure to raise issues with mail preparation changes, the Commission ``should review the Postal Service's mail preparation changes and act independently if it determines that a change may result in prices in excess of the cap.'' Id. at 8. PostCom submits that the 30-day window for filing motions potentially conflicts with the complaint procedures under 39 U.S.C. 3662(a) and contends that the Commission should not foreclose the ability of parties to utilize the complaint process which ensures ``that violations of the price cap that are not immediately apparent can still be challenged.'' Id. at 9. --------------------------------------------------------------------------- \4\ Comments of the Association for Postal Commerce, September 2, 2016 (PostCom Comments). --------------------------------------------------------------------------- Valpak states that the proposed rule will not fulfill the goal of ensuring that the Postal Service properly accounts for the rate effects of mail preparation changes under the Commission's price cap rules.\5\ Valpak views the 30-day timeframe and the potential foreclosure of ``any other opportunity or method of raising such an issue in another forum or at a later time'' as conflicting with the stated purpose of the rule. Valpak Comments at 2. Valpak notes that the structure of the proposed rule could be used by the Postal Service to argue that the ``other avenues to request that the Commission require Postal Service compliance to the price cap rules, including filing comments in pricing dockets and annual compliance reviews, as well as filing a complaint'' would be foreclosed if an interested party fails to file a motion under the proposed rule. Id. at 3. Valpak requests the Commission clarify that the proposed rule was not intended to be the exclusive remedy for issues regarding price cap compliance of mail preparation requirement changes. Id. --------------------------------------------------------------------------- \5\ Comments of Valpak Direct Marketing Systems, Inc. and the Valpak Franchise Association, Inc. on Proposed Rule on Motions Concerning Mail Preparation Changes, September 2, 2016, at 1-2 (Valpak Comments). --------------------------------------------------------------------------- The National Postal Policy Council, the National Association of Presort Mailers, and the Association for Mail Electronic Enhancement (Joint Commenters) submit that the proposed rule should not be the exclusive means to raise the issue of price cap compliance for mail preparation requirements as a procedural rule ``cannot substitute for the Commission's and Postal Service's legal responsibilities to ensure that rates for market-dominant products comply with the price cap restrictions established by the Congress.'' \6\ The Joint Commenters submit that the proposed rule ``cannot shift to mailers the burden of proving that a mailing preparation change constitutes a classification change with cap implications merely by creating a procedural means of raising the issue.'' Joint Comments at 12-13. Further, the Joint Commenters contend that a 30-day time period is insufficient to recognize the price cap implication of certain mail preparation changes and also prepare and file a motion within that timeframe. Id. at 7-8. --------------------------------------------------------------------------- \6\ Comments of the National Postal Policy Council, the National Association of Presort Mailers, and the Association for Mail Electronic Enhancement, September 2, 2016, at 3 (Joint Comments). --------------------------------------------------------------------------- The Public Representative questions the utility of a time limit on motions concerning mail preparation changes where such changes are made effective immediately or a short time after notice.\7\ Additionally, he questions whether a time limit on filing motions would mean that the Postal Service would be able to potentially violate the price cap if a motion was untimely. PR Comments at 10. His main concern is that the proposed rule leaves open a gap in price cap compliance review, where --------------------------------------------------------------------------- \7\ Public Representatives Comments, September 2, 2016, at 10 (PR Comments). a rate impact resulting from [mail preparation] changes would not necessarily be discovered if the Postal Service is required only to notify the Commission when it finds deletion or redefinition will occur and files for a rate change, or where an interested person recognizes a potential rate change and is willing to undertake the --------------------------------------------------------------------------- effort to file a motion with the Commission. Id. at 8. He concludes that the Commission ``should not abdicate its responsibility to administer the price cap rules by not ensuring consideration of whether rate cells are effectively deleted or redefined by such changes, whether noticed in the DMM or elsewhere.'' Id. at 7. The Postal Service submits that the proposed rule should include a deadline for resolving motions, in addition to the 30-day timeframe for filing motions, as it seeks to know the ``outcome of a mail-preparation motion before going forward with its pricing plans.'' \8\ It proposes that the Commission be required to resolve any motions concerning mail preparation changes within 60 calendar days of their filing. Postal Service Comments at 8. --------------------------------------------------------------------------- \8\ United States Postal Service Comments on Proposed Rules for Motions Concerning Mail Preparation Changes, September 2, 2016, at 7-8 (Postal Service Comments). --------------------------------------------------------------------------- B. Comments on the Multiple Sources Used by the Postal Service To Provide Notice of Mail Preparation Changes In addition to issues with setting a 30-day timeframe for motions concerning mail preparation requirements, commenters submit that it is difficult to monitor the multiple sources used by the Postal Service to provide notice of mail preparation changes. Numerous commenters request that the Commission direct the Postal Service to identify a publication where all mail preparation changes will be published. Commenters submit that this requirement would allow mailers and the Commission to more easily monitor mail preparation changes for price cap compliance. PostCom asserts that the multiple sources used by the Postal Service to publish mail preparation changes, changes between draft and final mail preparation changes, and informal communications about proposed changes make it difficult to determine what would trigger the 30-day timeframe for motions under the proposed rule. PostCom Comments at 2-4. As a result of these difficulties, PostCom proposes directing ``the Postal Service to identify a publication in which all mail preparation changes will [[Page 16017]] be published.'' Id. at 5. The Joint Commenters also submit that the Postal Service's practice of publishing mail preparation changes in multiple, overlapping sources, ``has made it harder for mailers to know the current (or future) rules and, by extension, even more difficult to know whether the real effects of mail preparation changes affect the price cap.'' Joint Comments at 5. The Public Representative also supports requiring the Postal Service to file notice of mail preparation changes in a single source. PR Comments at 6-7. He submits that, because the changes are not published in a single source, ``the Commission is not in a position to review the effects of each mail preparation change'' and this creates a gap in regulatory coverage. Id. C. Comments on the Postal Service's Affirmative Statement of Whether a Mail Preparation Change Has a Rate Impact A third issue raised by commenters is the utility of the proposed rule's requirement that the Postal Service only designate where mail preparation changes have a rate impact. PostCom submits that the Postal Service should provide an affirmative statement of no price impact, providing clarity for mailers and no additional burden on the Postal Service in light of their affirmative duty to make the initial determination. PostCom Comments at 7. The Public Representative contends that the proposed rule does not include a mechanism to ensure that the Postal Service will comply with its burden to review mail preparation changes for rate impacts and submits that the Postal Service should be required to affirmatively state whether a mail preparation change has a rate impact for every change. PR Comments at 6-8. The Joint Commenters submit that the Postal Service should also provide information concerning the effect of the change on rate categories and cells, numbers of mailpieces affected by the change, an affirmative statement of whether or not the change has a rate effect, and statement of why the change ``will or will not constitute a classification change under the standard adopted in Order No. 3047 as affirmed in Order No. 3441.'' Joint Comments at 8-11. D. Comments on the Standard of Proof/Evidentiary Burden Commenters also submit questions regarding the evidentiary record and standard of proof that would be required for motions concerning mail preparation requirements and whether it would differ from existing procedures. The Postal Service requests additional discovery procedures that would ``allow for the development of an evidentiary record'' under the proposed rule. Postal Service Comments at 4. First, it requests a requirement that mailers offer proof of costs and operational impact when filing a motion challenging the price cap impact of a mail preparation change. Id. at 5. Second, it submits that the proposed rule should include various discovery procedures to assist the Commission and the Postal Service ``with evaluating whether the moving party has met its burden of demonstrating that the change imposes costs and burdens significant enough to require compliance with the price cap rules.'' Id. at 6. In addition, the Postal Service suggests a meet and confer requirement prior to any motion practice over mail preparation changes under the proposed rule. Id. at 9. PostCom submits that although the proposed rule ``correctly declines to specify what information a party must provide in support of its motion, as the type of information available will differ in individual circumstances,'' it fails to set forth the standard of review the Commission will apply to determine whether a motion warrants further procedures. PostCom Comments at 6. PostCom suggests that the Commission apply a ``standard similar to that employed in a motion to dismiss and determine whether the mail preparation change would have a price impact if the consequences alleged by the movant were to occur.'' Id. III. Revised Proposed Rule The revised proposed rule would require the Postal Service to affirmatively designate whether or not a mail preparation requirement change implicates the price cap in a single, publicly available source. Further, if challenged by a mailer or raised by the Commission, the Postal Service would have to demonstrate by a preponderance of the evidence that a mail preparation change does not require compliance with Sec. 3010.23(d)(2). As numerous commenters raised questions regarding standard of proof for issues regarding compliance with Sec. 3010.23(d)(2) for mail preparation changes, the Commission clarifies that it is the Postal Service's burden to demonstrate, by a preponderance of the evidence, that a specific mail preparation change does not implicate the price cap. This burden is consistent with the Postal Service's obligation to evaluate changes to mail preparation requirements for compliance with Sec. 3010.23(d)(2) in accordance with the Commission's standard set forth in Order No. 3047. For the deletion prong of the Commission's standard, the inquiry is limited to whether the mail preparation change causes the elimination of a rate, or the functional equivalent of an elimination of a rate.\9\ For the redefinition prong, the Postal Service's showing does not require detailed analysis of mailer cost for a mail preparation change because the significance prong of the Commission's standard only requires a determination of whether the mail preparation change is large in magnitude. Order No. 3441 at 31. --------------------------------------------------------------------------- \9\ Order No. 3047 at 15-16; Docket No. R2013-10R, Order Resolving Motion for Reconsideration of Commission Order No. 3047, at 31, July 20, 2016 (Order No. 3441). --------------------------------------------------------------------------- As with the majority of proceedings before the Commission, the specific evidence presented will be largely fact dependent subject to the individual circumstances of the matter and the Postal Service's showing will be evaluated based on the evidence available at the time. Accordingly, in any proceeding where the price cap impact of a mail preparation change is being determined or challenged, the Postal Service must be able to show that the greater weight of the available evidence favors a finding that the change does not implicate Sec. 3010.23(d)(2). In addition, as the Postal Service is in the best position to gather information on mailer costs and operational adjustments, in light of its abundant contact and consultation with the mailing industry, the Postal Service may submit such evidence and seek a determination from the Commission using the procedures set forth under Sec. 3001.21 of this chapter prior to implementation of the change. Under the revised rule, the Postal Service may designate a single source of its choosing, so long as the source is published and publicly available. The Postal Service shall file notice with the Commission after it designates the source it will use. Proposed Sec. 3010.23(d)(5) also directs the Postal Service to affirmatively state in the single source publication whether or not the change requires compliance with Sec. 3010.23(d)(2). This flows from the Postal Service's obligation to properly evaluate its mail preparation changes for compliance with the price cap rules. Single source publication will allow the Commission to independently review mail preparation changes and will, in most circumstances, eliminate the need to have parties initiate motions to bring such changes to the Commission's attention. Accordingly, the revised proposed rule eliminates the [[Page 16018]] separate procedural component for motions concerning mail preparation changes. This change was triggered by commenter concerns over a potentially duplicative procedural rule that would conflict with the Commission's existing procedures and authority to review mail preparation changes for compliance with the price cap rules. The Commission submits that the existing procedures available to interested parties should be sufficient to raise issues of price cap compliance for mail preparation changes. Mailers may notify the Commission using the general motion procedures set forth in Sec. 3001.21 of this chapter if they disagree with the Postal Service's determination of compliance with Sec. 3010.23(d)(2). The rules under Sec. 3001.21 of this chapter require motions to ``set forth with particularity the ruling or relief sought, the grounds and basis therefor, and the statutory or other authority relied upon . . .'' Accordingly, any motions filed under Sec. 3001.21 of this chapter concerning mail preparation changes shall provide all information the mailers have to rebut the Postal Service's determination, consistent with the Commission's standard set forth in Order No. 3047. The Commission shall weigh the available evidence and provide a determination as soon as practicable based on a preponderance of the evidence standard. The initial NPR was intended to create a streamlined process by which mailers could submit, and the Commission could review, challenges to the Postal Service's failure to designate a mail preparation requirement change as having a rate effect under Sec. 3010.23(d)(2). However, as submitted by the commenters, the Commission's rules already provide numerous avenues for interested parties to raise issues relating to price cap compliance of mail preparation requirement changes, making an additional procedure redundant. The initial NPR would not foreclose any party from utilizing existing procedures and, as informed by the comments, would not be effective in practice as originally envisioned by the Commission. Accordingly, the Commission revises the proposed rule to better target the specific goal of ensuring that the Postal Service properly accounts for mail preparation requirement changes under Sec. 3010.23(d)(2). IV. Comments Requested Interested persons are invited to provide written comments concerning the proposed rule. The Commission seeks comments on the revised rule, specifically the utility of (1) requiring the Postal Service to publish all mail preparation changes in a single source with an affirmative designation of whether or not the changes require price cap compliance; and (2) the elimination of a separate procedural rule for motions concerning mail preparation requirements. Comments are due no later than 30 days after 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. It is ordered: 1. Interested persons may submit comments no later than 30 days from the date of the publication of this notice 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 proposes to amend 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; 3622. 0 2. Amend Sec. 3010.23 by adding 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 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 source it will use to provide published notice of all mail preparation changes. When providing notice of a mail preparation change, the Postal Service shall affirmatively state whether or not the change requires compliance with paragraph (d)(2) of this section. If raised by the Commission or challenged by a mailer, the Postal Service must demonstrate, by a preponderance of the evidence, that a mail preparation change does not require compliance with paragraph (d)(2) of this section in any proceeding where compliance is at issue. * * * * * [FR Doc. 2017-06355 Filed 3-30-17; 8:45 am] BILLING CODE 7710-FW-P
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TABLE 165.943—Continued
[Datum NAD 1983]
Event Location Event date
(8) Point to LaPointe Swim .. All waters of the Lake Superior North Channel between Bayfield and LaPointe, WI Early August.
within an imaginary line created by the following coordinates: 46°48′50″ N.,
090°48′44″ W., moving southeast to 46°46′44″ N., 090°47′33″ W., then moving
northeast to 46°46′52″ N., 090°47′17″ W., then moving northwest to 46°49′03″ N.,
090°48′25″ W., and finally returning to the starting position.
(9) Lake Superior Dragon All waters of Superior Bay in Superior, WI within the arc of a circle with a radius of Late August.
Boat Festival Fireworks no more than 1,120 feet from the launch site at position 46°43′28″ N.,
Display. 092°03′47″ W.
(10) Superior Man Triathlon All waters of the Duluth Harbor Basin, Northern Section in Duluth, MN within an Late August.
imaginary line created by the following coordinates: 46°46′36″ N., 092°06′06″ W.,
moving southeast to 46°46′32″ N., 092°06′01″ W., then moving northeast to
46°46′45″ N., 092°05′45″ W., then moving northwest to 46°46′49″ N.,
092°05′49″ W., and finally returning to the starting position.
Dated: March 27, 2017. I. Introduction change, after which the Commission
E.E. Williams, On January 22, 2016, the Commission would either institute a proceeding or
Commander, U.S. Coast Guard, Captain of published a notice of proposed consider the motion within an ongoing
the Port Duluth. rulemaking (initial NPR) which matter.
[FR Doc. 2017–06352 Filed 3–30–17; 8:45 am] proposed procedural rules for motions In response to comments received on
BILLING CODE 9110–04–P concerning mail preparation changes the initial NPR, the Commission is
that require compliance with the price issuing this revised notice of proposed
cap rules.1 The initial NPR was issued rulemaking (revised NPR) that: (1)
in conjunction with the Commission’s Withdraws the proposed procedural
POSTAL REGULATORY COMMISSION order in Docket No. R2013–10R setting rule under § 3001.21(d) of this chapter
forth a standard to determine when mail for motions concerning mail preparation
39 CFR Part 3010 preparation changes require compliance changes; and (2) requires the Postal
with § 3010.23(d)(2).2 In the initial NPR, Service to publish all mail preparation
[Docket No. RM2016–6; Order No. 3827] the Commission explained that the changes in a publicly-available single
Postal Service has the affirmative source and affirmatively designate
Motions Concerning Mail Preparation burden to determine whether a mail whether or not a mail preparation
Changes preparation change requires compliance change requires compliance with
with § 3010.23(d)(2) under the § 3010.23(d)(2). The revised NPR
AGENCY: Postal Regulatory Commission. specifies that, if raised by the
Commission’s standard in Order No.
ACTION: Notice of proposed rulemaking. 3047.3 The initial NPR proposed a Commission or challenged by a mailer,
procedural rule to permit interested the Postal Service must demonstrate by
SUMMARY: The Commission is noticing parties to file a motion with the a preponderance of the evidence that a
the reinstatement of a proposed Commission where the Postal Service change does not require compliance
rulemaking. This notice informs the fails to recognize or account for a mail with § 3010.23(d)(2). The revised NPR
public of the docket’s reinstatement, preparation change that has a rate effect narrows the scope of the initial
invites public comment, and takes other under § 3010.23(d)(2). proposed rule and provides an
administrative steps. Specifically, the initial proposed rule opportunity for public comment on this
DATES: Comments are due on or before § 3001.21(d) of this chapter required new proposed approach to ensure that
May 1, 2017. interested parties to file a motion with the Postal Service properly accounts for
the Commission upon actual or the rate effects of mail preparation
ADDRESSES: Submit comments constructive notice of a mail preparation changes under § 3010.23(d)(2) in
electronically via the Commission’s change that had a rate effect requiring accordance with the Commission’s
Filing Online system at http:// compliance with § 3010.23(d)(2). It also standard articulated in Order No. 3047.
www.prc.gov. Those who cannot submit proposed a 30-day timeframe within
comments electronically should contact which interested parties could file a II. Comments on Initial NPR
the person identified in the FOR FURTHER motion concerning a mail preparation The Commission received comments
INFORMATION CONTACT section by
in response to the initial NPR, of which
telephone for advice on filing 1 The initial NPR was published in the Federal three were from the mailing industry,
alternatives. Register on February 1, 2016. See 81 FR 5085 (Feb.
1, 2016). one was from the Public Representative,
FOR FURTHER INFORMATION CONTACT: 2 Order No. 3048, Notice of Proposed Rulemaking and one was from the Postal Service.
David A. Trissell, General Counsel, at on Motions Concerning Mail Preparation Changes, Most commenters do not oppose the
sradovich on DSK3GMQ082PROD with PROPOSALS
202–789–6820. January 22, 2016. The initial NPR was held in proposed rule, but raise questions about
abeyance pending the Commission’s resolution of
SUPPLEMENTARY INFORMATION: the Postal Service’s motion for reconsideration of whether it impacts the Commission’s
Order No. 3047. See Order No. 3096, Order Holding authority and responsibility to
Table of Contents Rulemaking in Abeyance, February 23, 2016. It was independently review mail preparation
reinstated on July 27, 2016, and comments were changes for compliance with the price
I. Introduction received on September 2, 2016. See Notice
II. Comments on Initial NPR Reinstating Rulemaking, July 27, 2016. cap rules, or whether mailers could
III. Revised Proposed Rule 3 Docket No. R2013–10R, Order Resolving Issues raise issues concerning mail preparation
IV. Comments Requested on Remand, January 22, 2016 (Order No. 3047). changes in other proceedings before the
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![16016 Federal Register / Vol. 82, No. 61 / Friday, March 31, 2017 / Proposed Rules
Commission. Commenters provide input timeframe and the potential foreclosure that the proposed rule leaves open a gap
generally on the following issues: (1) of ‘‘any other opportunity or method of in price cap compliance review, where
The timing provisions and effect on the raising such an issue in another forum a rate impact resulting from [mail
Commission’s independent authority; or at a later time’’ as conflicting with the preparation] changes would not necessarily
(2) the multiple sources used by the stated purpose of the rule. Valpak be discovered if the Postal Service is required
Postal Service to provide notice of mail Comments at 2. Valpak notes that the only to notify the Commission when it finds
preparation changes; (3) the Postal structure of the proposed rule could be deletion or redefinition will occur and files
Service’s affirmative statement of used by the Postal Service to argue that for a rate change, or where an interested
whether a mail preparation change has person recognizes a potential rate change and
the ‘‘other avenues to request that the is willing to undertake the effort to file a
a rate impact; and (4) the standard of Commission require Postal Service motion with the Commission.
proof/evidentiary burden. compliance to the price cap rules,
Id. at 8. He concludes that the
A. Comments on the Timing Provisions including filing comments in pricing
Commission ‘‘should not abdicate its
and Effect on the Commission’s dockets and annual compliance reviews,
responsibility to administer the price
Independent Authority as well as filing a complaint’’ would be
cap rules by not ensuring consideration
foreclosed if an interested party fails to
A major area of concern raised by the of whether rate cells are effectively
file a motion under the proposed rule. deleted or redefined by such changes,
commenters is the proposed rule’s effect Id. at 3. Valpak requests the
on the Commission’s independent whether noticed in the DMM or
Commission clarify that the proposed elsewhere.’’ Id. at 7.
authority to review mail preparation
rule was not intended to be the The Postal Service submits that the
changes for price cap compliance.
exclusive remedy for issues regarding proposed rule should include a deadline
Commenters raise questions about the
price cap compliance of mail for resolving motions, in addition to the
rule’s effect on the right to use existing
preparation requirement changes. Id. 30-day timeframe for filing motions, as
procedures available in rate, annual
compliance, and complaint proceedings The National Postal Policy Council, it seeks to know the ‘‘outcome of a mail-
to challenge the Postal Service’s the National Association of Presort preparation motion before going forward
compliance with the price cap. Mailers, and the Association for Mail with its pricing plans.’’ 8 It proposes that
PostCom raises numerous issues with Electronic Enhancement (Joint the Commission be required to resolve
the proposed 30-day time limit and Commenters) submit that the proposed any motions concerning mail
notice provisions set forth in the rule should not be the exclusive means preparation changes within 60 calendar
proposed rule.4 PostCom notes that, to raise the issue of price cap days of their filing. Postal Service
absent a waiver of the 30-day timeframe compliance for mail preparation Comments at 8.
in certain circumstances, the 30-day requirements as a procedural rule B. Comments on the Multiple Sources
requirement for filing motions conflicts ‘‘cannot substitute for the Commission’s Used by the Postal Service To Provide
with the Commission’s price cap and Postal Service’s legal Notice of Mail Preparation Changes
authority and responsibilities under 39 responsibilities to ensure that rates for
In addition to issues with setting a 30-
U.S.C. 3662 to hear complaints. market-dominant products comply with
day timeframe for motions concerning
PostCom Comments at 5–9. PostCom the price cap restrictions established by
mail preparation requirements,
contends that, although it makes sense the Congress.’’ 6 The Joint Commenters
commenters submit that it is difficult to
to provide mailers with a set procedure submit that the proposed rule ‘‘cannot monitor the multiple sources used by
to raise issues with mail preparation shift to mailers the burden of proving the Postal Service to provide notice of
changes, the Commission ‘‘should that a mailing preparation change mail preparation changes. Numerous
review the Postal Service’s mail constitutes a classification change with commenters request that the
preparation changes and act cap implications merely by creating a Commission direct the Postal Service to
independently if it determines that a procedural means of raising the issue.’’ identify a publication where all mail
change may result in prices in excess of Joint Comments at 12–13. Further, the preparation changes will be published.
the cap.’’ Id. at 8. PostCom submits that Joint Commenters contend that a 30-day Commenters submit that this
the 30-day window for filing motions time period is insufficient to recognize requirement would allow mailers and
potentially conflicts with the complaint the price cap implication of certain mail the Commission to more easily monitor
procedures under 39 U.S.C. 3662(a) and preparation changes and also prepare mail preparation changes for price cap
contends that the Commission should and file a motion within that timeframe. compliance.
not foreclose the ability of parties to Id. at 7–8. PostCom asserts that the multiple
utilize the complaint process which The Public Representative questions sources used by the Postal Service to
ensures ‘‘that violations of the price cap the utility of a time limit on motions publish mail preparation changes,
that are not immediately apparent can concerning mail preparation changes changes between draft and final mail
still be challenged.’’ Id. at 9. where such changes are made effective preparation changes, and informal
Valpak states that the proposed rule communications about proposed
immediately or a short time after
will not fulfill the goal of ensuring that changes make it difficult to determine
notice.7 Additionally, he questions
the Postal Service properly accounts for what would trigger the 30-day
whether a time limit on filing motions
the rate effects of mail preparation timeframe for motions under the
would mean that the Postal Service
changes under the Commission’s price proposed rule. PostCom Comments at 2–
would be able to potentially violate the
sradovich on DSK3GMQ082PROD with PROPOSALS
cap rules.5 Valpak views the 30-day 4. As a result of these difficulties,
price cap if a motion was untimely. PR
Comments at 10. His main concern is PostCom proposes directing ‘‘the Postal
4 Comments of the Association for Postal
Commerce, September 2, 2016 (PostCom
Service to identify a publication in
Comments). 6 Comments of the National Postal Policy Council, which all mail preparation changes will
5 Comments of Valpak Direct Marketing Systems, the National Association of Presort Mailers, and the
Inc. and the Valpak Franchise Association, Inc. on Association for Mail Electronic Enhancement, 8 United States Postal Service Comments on
Proposed Rule on Motions Concerning Mail September 2, 2016, at 3 (Joint Comments). Proposed Rules for Motions Concerning Mail
Preparation Changes, September 2, 2016, at 1–2 7 Public Representatives Comments, September 2, Preparation Changes, September 2, 2016, at 7–8
(Valpak Comments). 2016, at 10 (PR Comments). (Postal Service Comments).
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![16018 Federal Register / Vol. 82, No. 61 / Friday, March 31, 2017 / Proposed Rules
separate procedural component for making an additional procedure For the reasons discussed in the
motions concerning mail preparation redundant. The initial NPR would not preamble, the Commission proposes to
changes. This change was triggered by foreclose any party from utilizing amend chapter III of title 39 of the Code
commenter concerns over a potentially existing procedures and, as informed by of Federal Regulations as follows:
duplicative procedural rule that would the comments, would not be effective in
conflict with the Commission’s existing practice as originally envisioned by the PART 3010—REGULATION OF RATES
procedures and authority to review mail Commission. Accordingly, the FOR MARKET DOMINANT PRODUCTS
preparation changes for compliance Commission revises the proposed rule
with the price cap rules. The to better target the specific goal of ■ 1. The authority citation of part 3010
Commission submits that the existing ensuring that the Postal Service continues to read as follows:
procedures available to interested properly accounts for mail preparation
requirement changes under Authority: 39 U.S.C. 503; 3622.
parties should be sufficient to raise
issues of price cap compliance for mail § 3010.23(d)(2). ■ 2. Amend § 3010.23 by adding
preparation changes. Mailers may notify IV. Comments Requested paragraph (d)(5) to read as follows:
the Commission using the general
motion procedures set forth in § 3001.21 Interested persons are invited to § 3010.23 Calculation of percentage
of this chapter if they disagree with the provide written comments concerning change in rates.
Postal Service’s determination of the proposed rule. The Commission
seeks comments on the revised rule, * * * * *
compliance with § 3010.23(d)(2). The
specifically the utility of (1) requiring (d) * * *
rules under § 3001.21 of this chapter
require motions to ‘‘set forth with the Postal Service to publish all mail (5) Procedures for mail preparation
particularity the ruling or relief sought, preparation changes in a single source changes. The Postal Service shall
with an affirmative designation of provide published notice of all mail
the grounds and basis therefor, and the
whether or not the changes require price preparation changes in a single, publicly
statutory or other authority relied
cap compliance; and (2) the elimination
upon . . .’’ Accordingly, any motions available source. The Postal Service
of a separate procedural rule for motions
filed under § 3001.21 of this chapter shall file notice with the Commission of
concerning mail preparation
concerning mail preparation changes the source it will use to provide
requirements.
shall provide all information the mailers Comments are due no later than 30 published notice of all mail preparation
have to rebut the Postal Service’s days after the date of publication of this changes. When providing notice of a
determination, consistent with the notice in the Federal Register. All mail preparation change, the Postal
Commission’s standard set forth in comments and suggestions received will Service shall affirmatively state whether
Order No. 3047. The Commission shall be available for review on the or not the change requires compliance
weigh the available evidence and Commission’s Web site, http:// with paragraph (d)(2) of this section. If
provide a determination as soon as www.prc.gov. raised by the Commission or challenged
practicable based on a preponderance of It is ordered: by a mailer, the Postal Service must
the evidence standard. 1. Interested persons may submit demonstrate, by a preponderance of the
The initial NPR was intended to comments no later than 30 days from evidence, that a mail preparation change
create a streamlined process by which the date of the publication of this notice does not require compliance with
mailers could submit, and the in the Federal Register. paragraph (d)(2) of this section in any
Commission could review, challenges to 2. The Secretary shall arrange for
proceeding where compliance is at
the Postal Service’s failure to designate publication of this order in the Federal
Register. issue.
a mail preparation requirement change
as having a rate effect under * * * * *
By the Commission.
[FR Doc. 2017–06355 Filed 3–30–17; 8:45 am]
§ 3010.23(d)(2). However, as submitted Stacy L. Ruble,
BILLING CODE 7710–FW–P
by the commenters, the Commission’s Secretary.
rules already provide numerous avenues
for interested parties to raise issues List of Subjects in 39 CFR Part 3010
relating to price cap compliance of mail Administrative practice and
preparation requirement changes, procedure, Postal Service.
sradovich on DSK3GMQ082PROD with PROPOSALS
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Document Created: 2017-03-31 01:37:35
Document Modified: 2017-03-31 01:37:35
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments are due on or before May 1, 2017. | |
| Contact | David A. Trissell, General Counsel, at 202-789-6820. | |
| FR Citation | 82 FR 16015 | |
| CFR Associated | Administrative Practice and Procedure and Postal Service |
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