10218 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 

government overseeing a population 

below 50,000. 

The small entities that this proposed 

regulatory action would affect are public 

or private nonprofit agencies and 

organizations, including Indian Tribes 

and institutions of higher education, 

that may apply. We believe that the 

costs imposed on an applicant by the 

proposed priority would be limited to 

paperwork burden related to preparing 

an application and that the benefits of 

this proposed priority would outweigh 

any costs incurred by the applicant. 

There are very few entities who could 

provide the type of training and 

technical assistance required under the 

proposed priority. For these reasons, the 

proposed priority would not impose a 

burden on a significant number of small 

entities. 

Paperwork Reduction Act of 1995: 

The proposed priority contains 

information collection requirements that 

are approved by OMB under OMB 

control number 1820–0018. 

Intergovernmental Review: This 

program is subject to Executive Order 

12372 and the regulations in 34 CFR 

part 385. One of the objectives of the 

Executive order is to foster an 

intergovernmental partnership and a 

strengthened federalism. The Executive 

order relies on processes developed by 

State and local governments for 

coordination and review of proposed 

Federal financial assistance. 

This document provides early 

notification of our specific plans and 

actions for this program. 

Assessment of Educational Impact 

In accordance with section 411 of the 

General Education Provisions Act, 20 

U.S.C. 1221e–4, the Secretary 

particularly requests comments on 

whether these proposed regulations 

would require transmission of 

information that any other agency or 

authority of the United States gathers or 

makes available. 

Accessible Format: On request to the 

program contact person listed under FOR

FURTHER INFORMATION CONTACT, 

individuals with disabilities can obtain 

this document and a copy of the 

application package in an accessible 

format. The Department will provide the 

requestor with an accessible format that 

may include Rich Text Format (RTF) or 

text format (txt), a thumb drive, an MP3 

file, braille, large print, audiotape, or 

compact disc, or other accessible format. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. You may access the official 

edition of the Federal Register and the 

Code of Federal Regulations at 

www.govinfo.gov. At this site you can 

view this document, as well as all other 

documents of this Department 

published in the Federal Register, in 

text or Portable Document Format 

(PDF). To use PDF, you must have 

Adobe Acrobat Reader, which is 

available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

David Cantrell, 

Deputy Commissioner, Office of Special 

Education Programs. Delegated the authority 

to perform the functions and duties of the 

Assistant Secretary for the Office of Special 

Education and Rehabilitative Services. 

[FR Doc. 2021–03422 Filed 2–18–21; 8:45 am] 

BILLING CODE 4000–01–P 

POSTAL SERVICE 

39 CFR Part 113 

Treatment of E-Cigarettes in the Mail 

AGENCY: Postal ServiceTM. 

ACTION: Proposed revision, invitation for 

comment. 

SUMMARY: The Postal Service proposes 

to revise Publication 52, Hazardous, 

Restricted, and Perishable Mail, to 

incorporate new statutory restrictions 

on the mailing of electronic nicotine 

delivery systems. Such items would be 

subject to the same prohibition as 

cigarettes and smokeless tobacco, 

subject to many of the same exceptions. 

DATE: We must receive your comments 

on or before March 22, 2021. 

ADDRESSES: Mail or deliver written 

comments to the Manager, Product 

Classification, U.S. Postal Service, 475 

L’Enfant Plaza SW, Room 4446, 

Washington, DC 20260–3436. Email 

comments, containing the name and 

address of the Commenter, may be sent 

to: PCFederalRegister@usps.gov, with a 

subject line of ‘‘E-Cigarette 

Restrictions.’’ Faxed comments are not 

accepted. All submitted comments and 

attachments are part of the public record 

and subject to disclosure. Do not 

enclose any material in your comments 

that you consider to be confidential or 

inappropriate for public disclosure. 

You may inspect and photocopy all 

written comments, by appointment 

only, at USPS® Headquarters Library, 

475 L’Enfant Plaza SW, 11th Floor 

North, Washington, DC 20260. These 

records are available for review Monday 

through Friday, 9 a.m. and 4 p.m. by 

calling 202–268–2906. 

FOR FURTHER INFORMATION CONTACT: Dale 

E. Kennedy, 202–268–6592. 

SUPPLEMENTARY INFORMATION: The Postal 

Service is proposing to amend 

Publication 52 with the provisions 

described below and, once adopted, will 

incorporate the revised Publication 52 

by reference into 39 CFR part 113. You 

may view the text of the proposed edits 

to Publication 52 at https://pe.usps.com. 

On December 27, 2020, the Preventing 

Online Sales of E-Cigarettes to Children 

Act (‘‘Act’’), Public Law 116–160, div. 

FF, title VI (2020), was enacted. 

Effective 90 days after enactment, 

Section 602 of the Act adds ‘‘electronic 

nicotine delivery systems’’ (ENDS) to 

the definition of ‘‘cigarettes’’ subject to 

regulation under the Jenkins Act, 15 

U.S.C. 375 et seq. Consequently, ENDS 

will also become subject to the 

mailability restrictions and exceptions 

in 18 U.S.C. 1716E, which rely on the 

Jenkins Act definition of ‘‘cigarettes.’’ 18 

U.S.C. 1716E(a)(1). Section 603 of the 

Act requires the Postal Service to 

promulgate implementing regulations 

not later than 120 days after enactment 

and provides that the prohibition on 

mailing ENDS will apply immediately 

‘‘on and after’’ the date of the final rule. 

Current Mailing Restrictions on 

Cigarettes and Smokeless Tobacco 

Currently, 18 U.S.C. 1716E bans the 

mailing of cigarettes and smokeless 

tobacco except in narrowly defined 

circumstances, as described below. 

• Noncontiguous States: Intrastate 

shipments within Alaska or Hawaii; 

• Business/Regulatory Purposes: 

Shipments transmitted between verified 

and authorized tobacco industry 

businesses for business purposes, or 

between such businesses and federal or 

state agencies for regulatory purposes; 

• Certain Individuals: Lightweight 

shipments mailed between adult 

individuals, limited to 10 per 30-day 

period; 

• Consumer Testing: Limited 

shipments of cigarettes sent by verified 

and authorized manufacturers to adult 

smokers for consumer testing purposes; 

and 

• Public Health: Limited shipments 

by federal agencies for public health 

purposes under similar rules applied to 

manufacturers conducting consumer 

testing. 

18 U.S.C. 1716E(b)(2)–(6). Outside of 

these exceptions, the Postal Service 

cannot accept or transmit any package 

that it knows, or has reasonable cause to 

believe, contains nonmailable smokeless 

tobacco or cigarettes. Id. at (a)(1). 


tkelley on DSKBCP9HB2PROD with PROPOSALS
Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 10219 

The Postal Service has determined 

that the exceptions above cannot 

feasibly be applied to inbound or 

outbound international mail, mail to or 

from the Freely Associated States, or 

mail presented at overseas Army Post 

Office (APO), Fleet Post Office (FPO), or 

Diplomatic Post Office (DPO) locations 

and destined to addresses in the United 

States. Publication 52, Hazardous, 

Restricted and Perishable Mail 472.2. As 

such, all cigarettes and smokeless 

tobacco in such mail are nonmailable, 

without exception. 

Nonmailable cigarettes and smokeless 

tobacco deposited in the mail are 

subject to seizure and forfeiture. 18 

U.S.C. 1716E(c). Senders of nonmailable 

cigarettes or smokeless tobacco are 

subject to criminal fines, imprisonment, 

and civil penalties, in addition to 

enforcement under other federal, state, 

and local laws. Id. at (d), (e), (h). 

Definition of ENDS 

The proposed rule uses the definition 

of ENDS contained in 15 U.S.C. 375(7), 

as amended by section 602(a)(1)(C) of 

the Act. Under this definition, an ENDS 

is any electronic device that, through an 

aerosolized solution, delivers nicotine, 

flavor, or any other substance to the user 

inhaling from the device. Examples 

include e-cigarettes, e-hookahs, e-cigars, 

vape pens, advanced refillable personal 

vaporizers, and electronic pipes. 

Provisions relating to ENDS also extend 

to any component, liquid, part, or 

accessory of an ENDS, regardless of 

whether sold separately from the device. 

Despite the name, an item can qualify as 

an ENDS without regard to whether it 

contains or is intended to be used to 

deliver nicotine; liquids that do not 

actually contain nicotine can still 

qualify as ENDS, as can devices, parts, 

components, and accessories capable of 

or intended for use with non-nicotinecontaining liquids. 

Excluded from the statutory definition 

are products approved by the Food and 

Drug Administration for sale as tobacco 

cessation products or for other 

therapeutic purposes and marketed and 

sold solely for such purposes. 

Accordingly, the proposed rule excludes 

such items from the definition of ENDS. 

Approved tobacco cessation and 

therapeutic products thus remain 

mailable in domestic mail, international 

mail, mail treated as domestic, and mail 

from overseas APO/FPO/DPO addresses 

to United States destination addresses. 

Extension of Existing Provisions to 

ENDS in General; Terminology 

In general, the proposed rule would 

extend the current treatment of 

cigarettes and smokeless tobacco to 

ENDS. This is consistent with how the 

Act formally includes ENDS within the 

definition of ‘‘cigarettes’’ in 15 U.S.C. 

375(2)(A)(ii), which is used in 18 U.S.C. 

1716E. Consequently, all existing 

restrictions on and exceptions for 

‘‘cigarettes’’ apply to ENDS, except 

where context indicates otherwise. 

It is not intuitive that ENDS should be 

understood as a form of ‘‘cigarette.’’ In 

general parlance, ‘‘cigarettes’’ most 

commonly consist of ground leaf 

tobacco wrapped in paper, which 

deliver nicotine to a smoker when solid 

matter is combusted, and the resulting 

smoke inhaled. ENDS are electronic 

devices and their components and 

fillers, which deliver either nicotine or 

non-nicotine substances to a user when 

a liquid is vaporized, and the resulting 

vapor inhaled. To facilitate 

understanding by readers not versed in 

the statute, we propose to treat ENDS as 

a standalone category, albeit one 

generally subject to the same restrictions 

and exceptions as cigarettes, consistent 

with the statute. 

We have considered two ways in 

which to express this generally 

equivalent treatment. First, cigarettes, 

ENDS, and smokeless tobacco could be 

listed serially in every applicable 

instance; however, this option appears 

to unduly clutter the rules’ text. Second, 

we could employ a shorthand term to 

encompass all three types of items. 

Indeed, the statute itself appears to take 

this approach. Although the term is not 

defined in either 18 U.S.C. 1716E or 15 

U.S.C. 375, ‘‘tobacco product’’ is used in 

the title of 18 U.S.C. 1716E and 

throughout its text as apparent 

shorthand for the products made 

nonmailable by that section (i.e., 

cigarettes and smokeless tobacco). 

Because ENDS now fall within that 

scope through their inclusion in the 

pertinent statutory definition of 

‘‘cigarettes,’’ it seems reasonable to use 

the umbrella term ‘‘tobacco product’’ to 

refer to ENDS as well as cigarettes and 

smokeless tobacco. Hence, we propose 

to add a definition of ‘‘tobacco 

products’’ and to replace numerous 

instances of ‘‘cigarettes and smokeless 

tobacco’’ with ‘‘tobacco products.’’ 

This proposed solution admittedly 

shares some of the same conceptual 

difficulty discussed above in relation to 

cigarettes: Technically speaking, ENDS 

are not products derived from tobacco. 

In this instance, however, the general 

conceptual alignment, together with the 

benefits of a shorthand term and 

consistency with the statute’s use of the 

term, appear to weigh in favor of 

‘‘tobacco product’’ in reference to all 

products nonmailable under 18 U.S.C. 

1716E. Commenters are invited to 

propose alternative terminological 

approaches and to discuss the relative 

merits of their proposals. 

Standards for Determining 

Nonmailability 

Current law requires the Postal 

Service to treat shipments of cigarettes 

and smokeless tobacco as nonmailable 

not only where Postal Service personnel 

have actual knowledge that a shipment 

contains such items, but also where 

Postal Service personnel have 

‘‘reasonable cause to believe’’ that such 

contents are present. 18 U.S.C. 

1716E(a)(1). ‘‘Reasonable cause’’ exists 

where a party is on the U.S. Attorney 

General’s List of Unregistered or 

Noncompliant Delivery Sellers, and 

where public statements or 

advertisements indicate an intent to 

mail nonmailable cigarettes or 

smokeless tobacco for payment. Id. at 

(a)(2). The statute’s use of ‘‘includes’’ 

before these enumerations of 

‘‘reasonable cause’’ plainly indicates 

that the list is illustrative, rather than 

exhaustive, but it is silent on what else 

constitutes ‘‘reasonable cause.’’ Beyond 

those enumerated indicia of suspicion, 

other circumstances pertaining to a 

mailpiece may give rise to a reasonable 

suspicion that a package contains 

nonmailable cigarettes, smokeless 

tobacco, or ENDS. Where Postal Service 

personnel observe such circumstances 

and determine that reasonable cause 

exists, they may treat a package as 

nonmailable. The proposed rule would 

make this explicit. 

In the specific context of ENDS, the 

new statutory definition conditions 

mailability on factors that are extrinsic 

to the physical item: Namely, whether a 

product is FDA-approved for 

therapeutic or tobacco-cessation use, 

and whether it is marketed and sold 

exclusively for such purposes. These 

circumstances are known or knowable 

by a mailer, but they are not necessarily 

apparent to Postal Service personnel 

reviewing a package. If the possessor of 

an FDA-approved and exclusively 

marketed therapeutic or tobaccocessation product wishes to mail it, then 

that person has the unique means and 

incentive to provide adequate 

information with the package so that 

Postal Service personnel can identify 

the otherwise nonmailable item as, in 

fact, mailable. If a mailer does not do so, 

then the Postal Service has no basis to 

disbelieve indicia indicating the 

presence of a nonmailable ENDS. 

In expecting the mailer to supply such 

information, the Postal Service must be 

able to verify that the mailer is acting in 

good faith and not illegitimately treating 

the therapeutic/tobacco-cessation 


tkelley on DSKBCP9HB2PROD with PROPOSALS
10220 Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Proposed Rules 

exclusion as an opportunity to evade the 

general mailing ban. If the mailer’s 

claim to the exclusion is not 

appropriately credible or verifiable, then 

that claim may not be sufficient to 

deprive the Postal Service of reasonable 

cause to believe that the item is a 

nonmailable ENDS. Therefore, the 

proposed rule would authorize Postal 

Service personnel, upon reasonable 

cause to believe that a package contains 

cigarettes, smokeless tobacco, or ENDS, 

to treat the package as nonmailable 

unless the customer has affirmatively, 

credibly, and verifiably indicated that 

the relevant contents are, in fact, 

mailable. 

Commenters are invited to offer their 

views on this proposed standard for 

reasonable cause in connection with 

ENDS-type items (or any other tobacco 

products). To the extent that 

commenters might propose alternative 

standards, commenters are advised to 

account specifically for the need to 

prevent abuse of the narrow exclusion 

of therapeutic and tobacco-cessation 

products; the asymmetry between 

mailers’ and the Postal Service’s access 

to information about the FDA-approval 

status and marketing of particular 

products; the Postal Service’s limited 

resources; and its limited legal authority 

to open mailpieces that are sent in 

sealed mail classes without a warrant. 

39 U.S.C. 404(c); 39 CFR 233.3(c)(3)–(4), 

(g)(1)–(2). 

Applicability of Exceptions 

The existing Noncontiguous States, 

Business/Regulatory Purposes, and 

Certain Individuals exceptions appear to 

be articulated in terms that can apply to 

ENDS as well as to cigarettes and 

smokeless tobacco. As such, the 

proposed use of the umbrella term 

‘‘tobacco products’’ in the rules for each 

exception would automatically apply all 

such existing rules to ENDS. 

Commenters are nonetheless invited to 

identify any potential anomalies or 

other problems that this approach might 

create and to recommend solutions for 

such problems. 

The Consumer Testing and Public 

Health exceptions apply only to 

‘‘cigarettes,’’ and not to smokeless 

tobacco. 18 U.S.C. 1716E(b)(5)–(6). As 

noted earlier, the Act technically 

includes ENDS within the relevant 

definition of ‘‘cigarettes.’’ Without more, 

this would ordinarily indicate that these 

exceptions should apply to ENDS as 

well as other forms of ‘‘cigarettes.’’ 

However, 18 U.S.C. 1716E(b)(5)(A)(ii) or 

(C)(ii)(III) confine the exceptions to 

packages containing ‘‘not more than 12 

packs of cigarettes (240 cigarettes).’’ 

Congress did not amend these 

provisions when it included ENDS, 

broadly defined, in the definition of 

‘‘cigarettes,’’ and neither the text of the 

Act nor its legislative history contains 

any guidance as to how these conditions 

should apply to ENDS. 

ENDS are not packaged in such 

standard quantities as traditional 

cigarettes. ENDS rely on devices that 

can be used in an open-ended fashion, 

with potentially limitless quantities of 

liquid filled cartridges, whereas 

traditional cigarettes are self-contained, 

single-use items. Moreover, ENDS filler 

liquids can contain varying quantities of 

nicotine, or even no nicotine, whereas 

cigarettes uniformly contain nicotine. 

As such, it does not appear possible 

even to devise an administrable 

standard of equivalence that would 

allow ‘‘12 packs of cigarettes (240 

cigarettes)’’ to be translated into some 

quantity of ENDS filler liquid, let alone 

ENDS products other than filler liquid. 

Given the Act’s broad definition of 

ENDS and the material differences 

between ENDS products and the types 

of products originally encompassed by 

the Consumer Testing and Public Health 

exceptions, it appears reasonable to 

construe the lack of accommodation for 

ENDS in the relevant statutory text to 

render those exceptions inapplicable to 

ENDS. To the extent that commenters 

believe that the Consumer Testing and 

Public Health exceptions should apply 

to ENDS, commenters are invited to 

recommend alternative standards 

consistent with Congress’s apparent 

intent to limit the quantity of items 

mailed in packages under the 

exceptions. Commenters should explain 

in detail how any proposed alternative 

quantity limits are analogous to or 

otherwise consistent with those in 18 

U.S.C. 1716E(b)(5)(A)(ii) or (C)(ii)(III), or 

why such consistency is not necessary. 

Commenters are also invited to furnish 

any relevant documentation or 

supporting information that may aid the 

Postal Service in evaluating their 

recommendations. 

Effective Date of Eventual Final Rule 

Particularities here merit a brief 

discussion of the timing of the eventual 

final rule, in the interest of providing 

stakeholders with advance information. 

Section 603(a) of the Act requires the 

Postal Service ‘‘promulgate regulations 

to clarify the applicability of the 

prohibition on mailing of cigarettes’’ to 

ENDS not later than 120 days after 

enactment (i.e., April 26, 2021). Section 

603(b) provides that the prohibition will 

apply to mailings of ENDS ‘‘on and 

after’’ the publication date of the final 

rule. In specifying this immediate 

effective date, Congress expressly 

abrogated the standard 30-day notice 

period for a final rule under the 

Administrative Procedure Act (APA), 

which would otherwise apply to 

rulemakings concerning the mailability 

statute here. 5 U.S.C. 553(d), 559; 39 

U.S.C. 3001(m). To the extent that this 

rulemaking concerns not only the 

mailing prohibition referenced in the 

Act, but also the application of 

exemptions from that prohibition, the 

APA permits those aspects of the 

eventual final rule likewise to take effect 

with less than 30 days’ notice (e.g., 

immediately upon publication). 5 U.S.C. 

553(d)(1). 

Joshua J. Hofer, 

Attorney, Ethics and Legal Compliance. 

[FR Doc. 2021–03393 Filed 2–17–21; 11:15 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R10–OAR–2019–0599, FRL–10019– 

38–Region 10] 

Air Plan Approval; OR; Smoke 

Management Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Environmental Protection 

Agency (EPA) is proposing to approve 

Oregon State Implementation Plan (SIP) 

revisions submitted on November 3, 

2014 and September 27, 2019. The 

submitted revisions incorporate by 

reference the most recent updates to 

Oregon’s Smoke Management Plan. EPA 

is acting only on the most recent version 

of such regulations as the previous 

versions are no longer in effect as a 

matter of state law. EPA is also making 

technical corrections related to previous 

approvals of components of Oregon’s 

SIP. EPA is proposing to determine that 

the changes are consistent with Clean 

Air Act requirements. 

DATES: Comments must be received on 

or before March 22, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2019–0599, at https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from https://

www.regulations.gov. EPA may publish 

any comment received to its public 

docket. Do not electronically submit any 

information you consider to be 

Confidential Business Information (CBI) 

or other information the disclosure of 


tkelley on DSKBCP9HB2PROD with PROPOSALS