83 FR 40183 - Motions Concerning Mail Preparation Changes

POSTAL REGULATORY COMMISSION

Federal Register Volume 83, Issue 157 (August 14, 2018)

Page Range		40183-40184
FR Document		2018-17499
The Commission is noticing the partial rescindment of a previously proposed rule. This notice informs the public of the docket's reinstatement, invites public comment, and takes other administrative steps.
Federal Register, Volume 83 Issue 157 (Tuesday, August 14, 2018)
[Federal Register Volume 83, Number 157 (Tuesday, August 14, 2018)]
[Proposed Rules]
[Pages 40183-40184]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-17499]


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POSTAL REGULATORY COMMISSION

39 CFR Part 3010

[Docket No. RM2016-6; Order No. 4751]


Motions Concerning Mail Preparation Changes

AGENCY: Postal Regulatory Commission.

ACTION: Proposed rulemaking.

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SUMMARY: The Commission is noticing the partial rescindment of a 
previously proposed rule. 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 September 13, 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. Description of the Proposed Rule
IV. Comments Requested

I. Introduction

    The Commission initiates this notice of proposed rulemaking (NPR) 
to partially rescind the rule concerning procedures 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 Docket No. R2013-10R, the Commission determined that a change to 
the Intelligent Mail Barcoding (IMb) requirements constituted a change 
in rates 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 found 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.'' Id. However, the Court remanded the 
matter to the Commission so that it could articulate an intelligible 
standard to determine when mail preparation requirement changes 
constitute changes in rates subject to the price cap. Id. at 744.
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    \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).
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    In response to the Court's remand, the Commission issued Order No. 
3047, which set forth a standard to determine when mail preparation 
changes require compliance with the Commission's price cap rules.\2\ 
Under Sec.  3010.23(d)(2), the Postal Service must make reasonable 
adjustments to its billing determinants to account for the effects of 
classification changes that result in the introduction, deletion, or 
redefinition of rate cells. 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 rate 
cells as set forth by Sec.  3010.23(d)(2). Order No. 3047 at 59. In 
conjunction with Order No. 3047, the Commission initiated a separate 
rulemaking proceeding in this docket 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.'' \3\
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    \2\ Docket No. R2013-10R, Order Resolving Issues on Remand, 
January 22, 2016 (Order No. 3047).
    \3\ 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).
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    While the rulemaking was pending, the Postal Service requested the 
Commission reconsider the standard set forth in Order No. 3047. In 
response, the Commission issued Order No. 3441 resolving the request 
for reconsideration and maintaining the standard articulated in Order 
No. 3047.\4\ The Postal Service petitioned the Court for review of the 
revised standard set forth in Order Nos. 3047 and 3441.\5\
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    \4\ Docket No. R2013-10R, Order Resolving Motion for 
Reconsideration of Commission Order No. 3047, July 20, 2016 (Order 
No. 3441).
    \5\ Petition for Review, United States Postal Serv. v. Postal 
Reg. Comm'n, 886 F.3d 1253 (D.C. Cir. 2018).
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    During the pendency of the appellate proceedings, the Commission 
issued Order No. 4393 in this docket, adopting a final procedural rule 
concerning mail preparation changes.\6\ The final rule institutes 
publication requirements for changes to mail preparation rules and 
requires the Postal Service to (1) affirmatively designate whether or 
not a change to a mail preparation

[[Page 40184]]

requirement implicates the price cap; and (2) show by a preponderance 
of the evidence, if the designation is challenged, that the price cap 
does not apply to the change. The Postal Service also petitioned the 
Court for review of this final rule.\7\
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    \6\ 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 March 5, 2018. See 83 FR 4585 
(March 5, 2018). See also Revised Notice of Proposed Rulemaking, 
March 27, 2017 (Order No. 3827). The Revised Notice of Proposed 
Rulemaking was published in the Federal Register on March 31, 2017. 
See 82 FR 16015 (March 31, 2017).
    \7\ See Petition for Review, United States Postal Serv. v. 
Postal Reg. Comm'n, No. 18-1059 (D.C. Cir. February 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. As a result of this decision, the 
Commission and the Postal Service filed a joint motion to remand the 
appeal of the final rule back to the Commission for further 
proceedings.\8\ The Commission institutes this NPR in response to the 
Court's order granting the motion for remand.\9\
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    \8\ See Unopposed Motion to Remand Case, United States Postal 
Serv. v. Postal Reg. Comm'n, No. 18-1059 (D.C. Cir. May 10, 2018).
    \9\ See Order, United States Postal Serv. v. Postal Reg. Comm'n, 
No. 18-1059 (D.C. Cir. May 30, 2018).
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    As indicated in Order No. 4393, in addition to the reporting 
requirement, the procedural rule set forth requirements designed to 
ensure compliance with the price cap based on the Commission's standard 
articulated in Order No. 3047. Because the substantive standard 
established in Order No. 3047 was vacated by the Court, the Commission 
proposes to rescind part of the final rule that relies upon the 
standard. The Commission intends to develop an appropriate standard and 
propose other appropriate rules implementing that standard in due 
course.

III. Description of the Proposed Rule

    The proposed rule revises Sec.  3010.23(d)(5). As described above, 
Sec.  3010.23(d)(5) institutes a reporting requirement whereby the 
Postal Service must provide published notice of all mail preparation 
changes in a single source. The Postal Service began complying with the 
reporting requirement on March 22, 2018.\10\ The rule also requires the 
Postal Service to (1) affirmatively designate whether or not an 
individual mail preparation change requires compliance with Sec.  
3010.23(d)(2) in accordance with the standard set forth in Order No. 
3047; and (2) demonstrate by a preponderance of the evidence, in 
response to a challenge, that a mail preparation change does not 
require compliance with Sec.  3010.23(d)(2). Both the designation and 
evidentiary burden parts of the rule require a substantive standard. 
Because that standard was vacated and a new standard has yet to be 
developed, the proposed rule revises paragraph (d)(5) and removes the 
affirmative designation requirement and evidentiary burden. The 
reporting requirement will remain in the rule and exists independent of 
any standard as it is necessary to provide standardized, transparent 
reporting of mail preparation changes.\11\
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    \10\ See Updated Notice Under Rule 3010.23(d)(5), March 22, 
2018.
    \11\ See Order No. 4393 at 8-10 (justification for the reporting 
requirement).
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    Although the Commission is instituting a new proceeding to seek 
comment on an appropriate standard to determine when mail preparation 
changes are ``changes in rates'' under 39 U.S.C. 3622, the absence of 
an immediate standard necessitates partial rescission of the rule.

IV. Comments Requested

    Interested persons are invited to provide written comments 
concerning the proposed rule. As the Commission is instituting a 
separate proceeding for comments on a new standard, the comments should 
be limited to the revised procedural rule.
    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 
website, 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. Kenneth E. Richardson will continue to serve as an officer of 
the Commission (Public Representative) to represent the interests of 
the general public in this proceeding.
    3. 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; 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 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. 2018-17499 Filed 8-13-18; 8:45 am]
BILLING CODE 7710-FW-P
Federal Register / Vol. 83, No. 157 / Tuesday, August 14, 2018 / Proposed Rules 40183

any program that is not described in SUMMARY: The Commission is noticing which set forth a standard to determine
paragraph (c)(1) of this section. the partial rescindment of a previously when mail preparation changes require
* * * * * proposed rule. This notice informs the compliance with the Commission’s
■ 3. Section 600.21 is amended by public of the docket’s reinstatement, price cap rules.2 Under § 3010.23(d)(2),
revising the paragraph (a)(11) invites public comment, and takes other the Postal Service must make reasonable
introductory text to read as follows: administrative steps. adjustments to its billing determinants
DATES: Comments are due on or before to account for the effects of
§ 600.21 Updating application information. September 13, 2018. classification changes that result in the
(a) * * * ADDRESSES: Submit comments introduction, deletion, or redefinition of
(11) For any program that is required electronically via the Commission’s rate cells. The standard established by
to provide training that prepares a Filing Online system at http:// the Commission in Order No. 3047
student for gainful employment in a www.prc.gov. Those who cannot submit provided that mail preparation changes
recognized occupation— comments electronically should contact could have rate effects when they
* * * * * the person identified in the FOR FURTHER resulted in the deletion or redefinition
INFORMATION CONTACT section by of rate cells as set forth by
PART 668—STUDENT ASSISTANCE telephone for advice on filing § 3010.23(d)(2). Order No. 3047 at 59. In
GENERAL PROVISIONS alternatives. conjunction with Order No. 3047, the
Commission initiated a separate
■ 4. The authority citation for part 668 FOR FURTHER INFORMATION CONTACT:
rulemaking proceeding in this docket to
continues to read as follows: David A. Trissell, General Counsel, at develop a procedural rule that would
Authority: 20 U.S.C. 1001–1003, 1070g, 202–789–6820. ensure the Postal Service properly
1085, 1088, 1091, 1092, 1094, 1099c, and SUPPLEMENTARY INFORMATION: accounted for the rate effects of mail
1099c–1, unless otherwise noted. preparation changes ‘‘in accordance
Table of Contents
§ 668.6 [Removed and Reserved] with the Commission’s standard
I. Introduction
articulated in Order No. 3047.’’ 3
■ 5. Remove and reserve § 668.6. II. Background
While the rulemaking was pending,
■ 6. Section 668.8 is amended by III. Description of the Proposed Rule
IV. Comments Requested the Postal Service requested the
revising paragraphs (d)(2)(iii) and Commission reconsider the standard set
(d)(3)(iii) to read as follows: I. Introduction forth in Order No. 3047. In response, the
§ 668.8 Eligible program. The Commission initiates this notice Commission issued Order No. 3441
* * * * * of proposed rulemaking (NPR) to resolving the request for reconsideration
(d) * * * partially rescind the rule concerning and maintaining the standard
(2) * * * procedures for mail preparation changes articulated in Order No. 3047.4 The
(iii) Provide training that prepares a in response to the recent decision in Postal Service petitioned the Court for
student for gainful employment in a United States Postal Serv. v. Postal Reg. review of the revised standard set forth
recognized occupation; and Comm’n, 886 F.3d 1253 (D.C. Cir. 2018). in Order Nos. 3047 and 3441.5
(3) * * * During the pendency of the appellate
II. Background proceedings, the Commission issued
(iii) Provide undergraduate training
that prepares a student for gainful In Docket No. R2013–10R, the Order No. 4393 in this docket, adopting
employment in a recognized Commission determined that a change a final procedural rule concerning mail
occupation; to the Intelligent Mail Barcoding (IMb) preparation changes.6 The final rule
requirements constituted a change in institutes publication requirements for
* * * * * rates requiring compliance with the changes to mail preparation rules and
Subpart Q—[Removed and Reserved] price cap under 39 U.S.C. 3622.1 The requires the Postal Service to (1)
Postal Service appealed the affirmatively designate whether or not a
■ 7. Remove and reserve subpart Q, Commission’s determination to the change to a mail preparation
consisting of §§ 668.401 through United States Court of Appeals for the
668.415. District of Columbia (the Court). In 2 Docket No. R2013–10R, Order Resolving Issues

United States Postal Serv. v. Postal Reg. on Remand, January 22, 2016 (Order No. 3047).
3 Notice of Proposed Rulemaking on Motions
Subpart R—[Removed and Reserved] Comm’n, 785 F.3d 740, 751 (D.C. Cir. Concerning Mail Preparation Changes, January 22,
■ 8. Remove and reserve subpart R, 2015), the Court found that ‘‘changes in 2016, at 1–2 (Order No. 3048). The Notice of
consisting of §§ 668.500 through rates’’ under 39 U.S.C. 3622 could Proposed Rulemaking on Motions Concerning Mail
include changes to mail preparation Preparation Changes was published in the Federal
668.516. Register on February 1, 2016. See 81 FR 5085
requirements and were not limited to (February 1, 2016).
[FR Doc. 2018–17531 Filed 8–10–18; 4:15 pm]
‘‘only changes to the official posted 4 Docket No. R2013–10R, Order Resolving Motion
BILLING CODE 4000–01–P
prices of each product.’’ Id. However, for Reconsideration of Commission Order No. 3047,
the Court remanded the matter to the July 20, 2016 (Order No. 3441).
5 Petition for Review, United States Postal Serv.
Commission so that it could articulate
POSTAL REGULATORY COMMISSION v. Postal Reg. Comm’n, 886 F.3d 1253 (D.C. Cir.
an intelligible standard to determine 2018).
when mail preparation requirement 6 Order Adopting Final Procedural Rule for Mail
39 CFR Part 3010
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changes constitute changes in rates Preparation Changes, January 25, 2018, at 22–23
[Docket No. RM2016–6; Order No. 4751] subject to the price cap. Id. at 744. (Order No. 4393). The Order Adopting Final
In response to the Court’s remand, the Procedural Rule for Mail Preparation Changes was
published in the Federal Register on March 5, 2018.
Motions Concerning Mail Preparation Commission issued Order No. 3047, See 83 FR 4585 (March 5, 2018). See also Revised
Changes Notice of Proposed Rulemaking, March 27, 2017
1 Docket No. R2013–10, Order on Price (Order No. 3827). The Revised Notice of Proposed
AGENCY: Postal Regulatory Commission. Adjustments for Market Dominant Products and Rulemaking was published in the Federal Register
ACTION: Proposed rulemaking. Related Mail Classification Changes, November 21, on March 31, 2017. See 82 FR 16015 (March 31,
2013, at 5–35 (Order No. 1890). 2017).

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40184 Federal Register / Vol. 83, No. 157 / Tuesday, August 14, 2018 / Proposed Rules

requirement implicates the price cap; designation and evidentiary burden PART 3010—REGULATION OF RATES
and (2) show by a preponderance of the parts of the rule require a substantive FOR MARKET DOMINANT PRODUCTS
evidence, if the designation is standard. Because that standard was
challenged, that the price cap does not vacated and a new standard has yet to ■ 1. The authority citation of part 3010
apply to the change. The Postal Service be developed, the proposed rule revises continues to read as follows:
also petitioned the Court for review of paragraph (d)(5) and removes the Authority: 39 U.S.C. 503; 3662.
this final rule.7 affirmative designation requirement and ■ 2. Amend § 3010.23 by revising
Shortly after the Commission adopted evidentiary burden. The reporting paragraph (d)(5) to read as follows:
the final rule in this docket, the Court requirement will remain in the rule and
issued its decision in United States exists independent of any standard as it § 3010.23 Calculation of percentage
Postal Serv. v. Postal Reg. Comm’n, 886 change in rates.
is necessary to provide standardized,
F.3d 1253 (D.C. Cir. 2018), vacating the transparent reporting of mail * * * * *
Commission’s standard in Order No. preparation changes.11 (d) * * *
3047. As a result of this decision, the (5) Procedures for mail preparation
Commission and the Postal Service filed Although the Commission is changes. The Postal Service shall
a joint motion to remand the appeal of instituting a new proceeding to seek provide published notice of all mail
the final rule back to the Commission comment on an appropriate standard to preparation changes in a single, publicly
for further proceedings.8 The determine when mail preparation available source. The Postal Service
Commission institutes this NPR in changes are ‘‘changes in rates’’ under 39 shall file notice with the Commission of
response to the Court’s order granting U.S.C. 3622, the absence of an the single source it will use to provide
the motion for remand.9 immediate standard necessitates partial published notice of all mail preparation
As indicated in Order No. 4393, in rescission of the rule. changes.
addition to the reporting requirement, IV. Comments Requested * * * * *
the procedural rule set forth [FR Doc. 2018–17499 Filed 8–13–18; 8:45 am]
requirements designed to ensure Interested persons are invited to BILLING CODE 7710–FW–P
compliance with the price cap based on provide written comments concerning
the Commission’s standard articulated the proposed rule. As the Commission
in Order No. 3047. Because the is instituting a separate proceeding for ENVIRONMENTAL PROTECTION
substantive standard established in comments on a new standard, the AGENCY
Order No. 3047 was vacated by the comments should be limited to the
Court, the Commission proposes to revised procedural rule. 40 CFR Part 52
rescind part of the final rule that relies Comments are due no later than 30 [EPA–R05–OAR–2017–0700; FRL–9982–
upon the standard. The Commission days after the date of publication of this 10—Region 5]
intends to develop an appropriate notice in the Federal Register. All
standard and propose other appropriate comments and suggestions received will Air Plan Approval; Indiana; Cross-
rules implementing that standard in due be available for review on the State Air Pollution Rule
course. Commission’s website, http:// AGENCY: Environmental Protection
III. Description of the Proposed Rule www.prc.gov. Agency (EPA).
The proposed rule revises It is ordered: ACTION: Proposed rule.
§ 3010.23(d)(5). As described above, 1. Interested persons may submit SUMMARY: The Environmental Protection
§ 3010.23(d)(5) institutes a reporting comments no later than 30 days from Agency (EPA) is proposing to approve a
requirement whereby the Postal Service the date of the publication of this notice state submission concerning the Cross-
must provide published notice of all in the Federal Register. State Air Pollution Rule (CSAPR) that
mail preparation changes in a single
2. Kenneth E. Richardson will was submitted by Indiana on November
source. The Postal Service began
continue to serve as an officer of the 27, 2017 as a revision to the Indiana
complying with the reporting
Commission (Public Representative) to State Implementation Plan (SIP). Under
requirement on March 22, 2018.10 The
represent the interests of the general CSAPR, large electricity generating units
rule also requires the Postal Service to (EGUs) in Indiana are subject to Federal
(1) affirmatively designate whether or public in this proceeding.
Implementation Plans (FIPs) requiring
not an individual mail preparation 3. The Secretary shall arrange for
the units to participate in CSAPR’s
change requires compliance with publication of this order in the Federal
Federal trading program for annual
§ 3010.23(d)(2) in accordance with the Register.
emissions of nitrogen oxides (NOX), one
standard set forth in Order No. 3047; By the Commission. of CSAPR’s two Federal trading
and (2) demonstrate by a preponderance
Stacy L. Ruble, programs for annual emissions of sulfur
of the evidence, in response to a
Secretary. dioxide (SO2), and one of CSAPR’s two
challenge, that a mail preparation
Federal trading programs for ozone
change does not require compliance List of Subjects in 39 CFR Part 3010 season emissions of NOX. This action
with § 3010.23(d)(2). Both the
would approve the State’s regulations
Administrative practice and
requiring large Indiana EGUs to
amozie on DSK3GDR082PROD with PROPOSALS1

7 See Petition for Review, United States Postal procedure, Postal Service.
Serv. v. Postal Reg. Comm’n, No. 18–1059 (D.C. Cir. participate in new CSAPR state trading
February 26, 2018). For the reasons discussed in the programs for annual NOX, annual SO2,
8 See Unopposed Motion to Remand Case, United
preamble, the Commission proposes to and ozone season NOX emissions
States Postal Serv. v. Postal Reg. Comm’n, No. 18– amend chapter III of title 39 of the Code integrated with the CSAPR Federal
1059 (D.C. Cir. May 10, 2018).
9 See Order, United States Postal Serv. v. Postal of Federal Regulations as follows: trading programs, replacing the
Reg. Comm’n, No. 18–1059 (D.C. Cir. May 30, 2018). corresponding FIP requirements. EPA is
10 See Updated Notice Under Rule 3010.23(d)(5), 11 See Order No. 4393 at 8–10 (justification for the proposing to approve the SIP revision
March 22, 2018. reporting requirement). because the submittal meets the

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Document Created: 2018-08-14 02:18:45
Document Modified: 2018-08-14 02:18:45
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		Proposed rulemaking.
Dates		Comments are due on or before September 13, 2018.
Contact		David A. Trissell, General Counsel, at 202-789-6820.
FR Citation		83 FR 40183
CFR Associated		Administrative Practice and Procedure and Postal Service