24534 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 

(Authority: 38 U.S.C. 501, 2044) 

§ 62.73 Technical assistance. 

VA will provide technical assistance, 

as necessary, to eligible entities to meet 

the requirements of this part. Such 

technical assistance will be provided 

either directly by VA or through grants 

or contracts with appropriate public or 

non-profit private entities. 

(Authority: 38 U.S.C. 501, 2044, 2064) 

§ 62.80 Withholding, suspension, 

deobligation, termination, and recovery of 

funds by VA. 

(a) Recovery of funds. VA will recover 

from the grantee any supportive services 

grant funds that are not used in 

accordance with the requirements of 

this part. VA will issue to the grantee a 

notice of intent to recover supportive 

services grant funds. The grantee will 

then have 30 days to submit 

documentation demonstrating why the 

supportive services grant funds should 

not be recovered. After review of all 

submitted documentation, VA will 

determine whether action will be taken 

to recover the supportive services grant 

funds. 

(b) VA actions when grantee fails to 

comply. When a grantee fails to comply 

with the terms, conditions, or standards 

of the supportive services grant, VA 

may, on 7-days notice to the grantee, 

withhold further payment, suspend the 

supportive services grant, or prohibit 

the grantee from incurring additional 

obligations of supportive services grant 

funds, pending corrective action by the 

grantee or a decision to terminate in 

accordance with paragraph (c) of this 

section. VA will allow all necessary and 

proper costs that the grantee could not 

reasonably avoid during a period of 

suspension if such costs meet the 

provisions of the applicable Federal 

Cost Principles. 

(c) Termination. Supportive services 

grants may be terminated in whole or in 

part only if paragraphs (c)(1), (c)(2), or 

(c)(3) of this section apply. 

(1) By VA, if a grantee materially fails 

to comply with the terms and 

conditions of a supportive services grant 

award and this part. 

(2) By VA with the consent of the 

grantee, in which case VA and the 

grantee will agree upon the termination 

conditions, including the effective date 

and, in the case of partial termination, 

the portion to be terminated. 

(3) By the grantee upon sending to VA 

written notification setting forth the 

reasons for such termination, the 

effective date, and, in the case of partial 

termination, the portion to be 

terminated. However, if VA determines 

in the case of partial termination that 

the reduced or modified portion of the 

supportive services grant will not 

accomplish the purposes for which the 

supportive services grant was made, VA 

may terminate the supportive services 

grant in its entirety under either 

paragraphs (c)(1) or (c)(2) of this section. 

(d) Deobligation of funds. (1) VA may 

deobligate all or a portion of the 

amounts approved for use by a grantee 

if: 

(i) The activity for which funding was 

approved is not provided in accordance 

with the approved application and the 

requirements of this part; 

(ii) Such amounts have not been 

expended within a 1-year period from 

the date of the signing of the supportive 

services grant agreement; 

(iii) Other circumstances set forth in 

the supportive services grant agreement 

authorize or require deobligation. 

(2) At its discretion, VA may readvertise in a Notice of Fund 

Availability the availability of funds 

that have been deobligated under this 

section or award deobligated funds to 

applicants who previously submitted 

applications in response to the most 

recently published Notice of Fund 

Availability. 

(Authority: 38 U.S.C. 501, 2044) 

§ 62.81 Supportive services grant closeout 

procedures. 

Supportive services grants will be 

closed out in accordance with the 

following procedures upon the date of 

completion: 

(a) No later than 90 days after the date 

of completion, the grantee must refund 

to VA any unobligated (unencumbered) 

balance of supportive services grant 

funds that are not authorized by VA to 

be retained by the grantee. 

(b) No later than 90 days after the date 

of completion, the grantee must submit 

all financial, performance and other 

reports required by VA to closeout the 

supportive services grant. VA may 

authorize extensions when requested by 

the grantee. 

(c) If a final audit has not been 

completed prior to the date of 

completion, VA retains the right to 

recover an appropriate amount after 

considering the recommendations on 

disallowed costs once the final audit has 

been completed. 

(Authority: 38 U.S.C. 501, 2044) 

[FR Doc. 2010–10372 Filed 5–4–10; 8:45 am] 

BILLING CODE P 

POSTAL SERVICE 

39 CFR Part 111 

Treatment of Cigarettes and 

Smokeless Tobacco as Nonmailable 

Matter 

AGENCY: Postal ServiceTM. 

ACTION: Proposed rule. 

SUMMARY: The Postal Service proposes 

to revise Mailing Standards of the 

United States Postal Service, Domestic 

Mail Manual (DMM®) 601.11, pertaining 

to the mailing of tobacco cigarettes and 

smokeless tobacco. These provisions 

implement specific requirements to be 

in compliance with the Prevent All 

Tobacco Cigarettes Trafficking (PACT) 

Act, Public Law No. 111–154, which 

restricts the mailability of cigarettes and 

smokeless tobacco. 

DATES: Submit comments on or before 

May 17, 2010. 

ADDRESSES: Mail or deliver written 

comments to the Manager, Mailing 

Standards, U.S. Postal Service, 475 

L’Enfant Plaza, SW., Room 3436, 

Washington, DC 20260–3436. You may 

inspect and photocopy all written 

comments at USPS Headquarters 

Library, 475 L’Enfant Plaza, SW., 11th 

Floor North, Washington, DC, between 9 

a.m. and 4 p.m., Monday through 

Friday. E-mail comments, containing 

the name and address of the commenter, 

may be sent to: 

MailingStandards@usps.gov, with a 

subject line of ‘‘PACT Act.’’ Faxed 

comments are not accepted. 

FOR FURTHER INFORMATION CONTACT: 

Anthony Alverno, 202–268–2997, or 

Mary Collins, 202–268–5440. 

SUPPLEMENTARY INFORMATION: 

On March 31, 2010, the Prevent All 

Cigarette Trafficking (PACT) Act of 

2009, Public Law No. 111–154 was 

enacted. The Act’s purposes include: 

• Requiring Internet-based and other 

remote sellers of cigarettes and 

smokeless tobacco to comply with laws 

applied to other tobacco retailers; 

• Creating disincentives for the illegal 

smuggling of tobacco products; 

• Enhancing enforcement tools to 

deal with cigarette smuggling; 

• Stemming trafficking; 

• Increasing collection of federal, 

state, and local excise taxes on cigarettes 

and smokeless tobacco; and 

• Preventing youth access through 

Internet and contraband sales. 

Section 3 of the PACT Act pertains to 

the Postal Service and creates a new 

section 1716E of Title 18, U.S. Code. 

Section 3 of the PACT Act provides that, 

subject to certain exceptions, cigarettes, 

including roll-your-own tobacco and 


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smokeless tobacco are nonmailable. 

Exceptions in the PACT Act permit the 

mailing of cigarettes and/or smokeless 

tobacco 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: Infrequent, 

lightweight shipments mailed between 

adult individuals; 

• Consumer Testing: Shipments of 

cigarettes sent by verified and 

authorized manufacturers to adult 

smokers for consumer testing purposes; 

and 

• Public Health: Shipments by federal 

agencies for public health purposes 

under similar rules applied to 

manufacturers conducting consumer 

testing. 

The PACT Act provides that the 

Postal Service cannot accept or transmit 

any package that it knows, or has 

reasonable cause to believe, contains 

nonmailable smokeless tobacco or 

cigarettes. The proposed rule explains 

that the Postal Service has reasonable 

cause to not accept for delivery or 

transmit a package based on: 

• A statement on a publicly available 

Web site, or an advertisement, by any 

person that the person will mail matter 

which is nonmailable under this section 

in return for payment; or 

• The fact that the mailer or other 

person on whose behalf a mailing is 

being made is on the U.S. Attorney 

General’s List of Unregistered or 

Noncompliant Delivery Sellers. 

Nonmailable cigarettes and smokeless 

tobacco deposited in the mail are 

subject to seizure and forfeiture. 

Senders of nonmailable cigarettes or 

smokeless tobacco are subject to 

criminal fines, imprisonment, and civil 

penalties. 

Section 6 of the PACT Act provides 

that the nonmailability provisions, as 

well as the noncontiguous states 

exception, take effect 90 days after 

enactment. With respect to the 

remaining exceptions, the PACT Act 

requires the Postal Service to 

promulgate a final rule no later than 180 

days after enactment of the PACT Act. 

18 U.S.C. 1716E(b)(3)(B)(i), (4)(B)(i), 

(5)(C)(i). The Postal Service accordingly 

will attempt to publish a final rule 

effective June 29, 2010, that, at a 

minimum, will cover the general 

nonmailability provisions and the 

noncontiguous states exception. The 

Postal Service will attempt to issue a 

final rule to give effect to the remaining 

exceptions to the PACT Act as soon as 

possible, but no later than September 

27, 2010. 

The Postal Service offers the 

following observations on the various 

aspects of the proposed rule below. 

Definitions: Consistent with the PACT 

Act, the proposed rule uses the 

definitions of cigarettes, roll-your-own 

tobacco, smokeless tobacco, cigars, 

consumer testing, and states found in 

federal law in Titles 15, 18, and 26 of 

the U.S. Code. As provided in 18 U.S.C. 

1716E(b)(1), cigars are excluded from 

the mailability ban and therefore may be 

mailed regardless of any conditions 

required for the mailing of other 

applicable products under the PACT 

Act exceptions. 

Mailability: The proposed rule 

incorporates the PACT Act mailability 

restrictions for cigarettes and smokeless 

tobacco. 

Coverage of Exceptions: The PACT 

Act governs the permissibility of certain 

items within the Postal Service’s 

mailstream network. The complex 

verification requirements for the PACT 

Act’s exceptions, combined with the 

strict consequences of any 

noncompliance, render it impracticable 

for these requirements to be made 

applicable to mail originating or 

destinating outside of the Postal 

Service’s service area. Therefore, the 

Postal Service does not believe that any 

alternative exists at this time to allow 

U.S. mailers to tender cigarettes and 

smokeless tobacco as outbound 

international mail or to receive them as 

inbound international mail under the 

PACT Act’s exceptions. The proposed 

rule incorporates these principles by 

restricting the exceptions’ applicability 

to domestic mail, but not to mail treated 

as domestic under Mailing Standards of 

the United States Postal Service, 

Domestic Mail Manual (DMM) 608.2.2 

or international mail as defined in DMM 

608.2.3. 

The applicability of these proposed 

rules to domestic mail under DMM 

608.2.1 would include mail to, from, 

and between military installations, 

Army Post Offices (APOs), Fleet Post 

Offices (FPOs), and Diplomatic Post 

Offices (DPOs), except for mail treated 

as domestic under DMM 608.2.2. 

Delivery rules would apply to overseas 

military mail as practicable under the 

certain individuals’ exception. Hold for 

Pickup service would not be required 

for delivery to APO, FPO, and DPO 

addresses. 

Noncontiguous States Exception: The 

PACT Act permits the mailing of 

cigarettes and smokeless tobacco within 

the State of Alaska and within the State 

of Hawaii. 18 U.S.C. 1716E(b)(2). The 

proposed rule would require that intraAlaskan and intra-Hawaiian shipments 

of cigarettes or smokeless tobacco: 

• Be presented in a face-to-face 

transaction with a postal employee 

(thereby enabling acceptance personnel 

to verify that the shipment will 

destinate in the noncontiguous state of 

origin), 

• Destinate in the state of origin, 

• Bear a return address that is within 

the state of origin, and 

• Be marked with the following 

exterior marking on the address side of 

the mailpiece: ‘‘INTRASTATE 

SHIPMENT OF CIGARETTES OR 

SMOKELESS TOBACCO.’’ 

Business/Regulatory Purposes 

Exception: Eligible mailers and 

recipients under the business/regulatory 

purposes exception include federal and 

state agencies, 18 U.S.C. 

1716E(b)(3)(A)(ii), as well as ‘‘legally 

operating businesses that have all 

applicable State and Federal 

Government licenses or permits and are 

engaged in tobacco product 

manufacturing, distribution, wholesale, 

export, import, testing, investigation, or 

research.’’ 18 U.S.C. 1716E(b)(3)(A)(i). 

The PACT Act charges the Postal 

Service with verifying that any person 

submitting an otherwise nonmailable 

tobacco product into the mails, and any 

person receiving such a product through 

the mails, as authorized under the 

business/regulatory purposes exception, 

is a business or government agency 

within the scope of the exception. 18 

U.S.C. 1716E(b)(3)(B)(ii)(I)–(II). 

The Postal Service proposes to require 

that each customer seeking to avail itself 

of this exception submit an application 

to the manager, Pricing and 

Classification Service Center (PCSC). 

The application requires the customer to 

furnish information about its legal 

status, any applicable licenses, and 

authority under which it operates. In 

addition, the applicant would be 

required to furnish similar information 

for all entities to which its mailings 

under this exception are addressed and 

to identify all locations where the 

applicant will present mail containing 

cigarettes and smokeless tobacco. The 

applicant would be required to update 

this information anytime it intends to 

mail to an entity or at a location not 

previously on its list. Only those 

shipments addressed to designated 

recipients and presented at designated 

locations would be eligible for the 

business/regulatory purposes exception. 

Before tendering any shipment under 

this exception, the mailer must present 

proof that the Postal Service has 


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24536 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 

authorized the mailer to tender such 

shipments at that location. 

Based on information furnished in the 

customer’s application, the Postal 

Service will make determinations of 

eligibility to mail under this exception. 

The applicant bears the burden of 

establishing its and its recipients’ 

eligibility as legally operating 

businesses that have all applicable state 

and federal government licenses or 

permits and that are engaged in tobacco 

product manufacturing, distribution, 

wholesale, export, import, testing, 

investigation, or research; or, in the case 

of mailings for regulatory purposes, the 

applicant’s or its recipient’s status as a 

federal or state agency. Customers 

whose applications or amendments to 

existing applications are denied in 

whole or in part may appeal to the 

manager, PCSC. The proposed rule 

provides that eligibility to mail under 

the business/regulatory purposes 

exception may be revoked by the 

manager, PCSC, in the event of failure 

to comply with any applicable rules and 

regulations. Decisions by the manager, 

PCSC, to uphold the denial of an 

application or to revoke a customer’s 

eligibility under the business/regulatory 

purposes exception may be appealed to 

the Judicial Officer under 39 CFR part 

953. In order to ensure that eligibility 

determinations remain current, the 

proposed rule provides that any 

authorization to mail under this 

exception will lapse if the mailer does 

not actually tender any such mail 

during any six-month period, and that 

the mailer must submit a new 

application for eligibility for any future 

mailings after that point. 

The PACT Act requires that eligible 

shipments under this exception be sent 

via mail classes that provide for the 

‘‘tracking and confirmation of the 

delivery.’’ 18 U.S.C. 

1716E(b)(3)(B)(ii)(III). The mail service 

that fulfills this requirement is Express 

Mail service, which offers tracking 

information and confirmation of 

delivery. Consequently, the proposed 

rule specifies that eligible shipments 

under the business/regulatory purposes 

exception would be required to use 

Express Mail service. 

The PACT Act provides that eligible 

mailings be ‘‘marked with marking that 

makes it clear to employees of the 

United States Postal Service that it is a 

permitted mailing of otherwise 

nonmailable tobacco products that may 

be delivered only to a permitted 

government agency or business and may 

not be delivered to any residence or 

individual person.’’ 18 U.S.C. 

1716E(b)(3)(B)(ii)(VI). The Postal 

Service accordingly proposes that each 

mailing tendered under the business/ 

regulatory purposes exception bear the 

following marking: ’’PERMITTED 

TOBACCO PRODUCT—DELIVER ONLY 

TO ADDRESSED BUSINESS/ 

AGENCY— RECIPIENT MUST 

FURNISH PROOF OF AGE AND 

EMPLOYMENT OR AGENCY.’’ The 

marking would be required to appear on 

the exterior of the address side of the 

mailing container. 

The PACT Act requires that the Postal 

Service maintain information, to 

include ‘‘the identity of the business or 

government entity submitting the 

mailing containing otherwise 

nonmailable tobacco products for 

delivery and the identity of the business 

or government entity receiving the 

mailing’’ for a three-year period 

beginning on the date of the mailing. 18 

U.S.C. 1716(b)(3)(B)(ii)(IV)–(V). Such 

information must be made available to 

designated law enforcement agencies 

during the designated period of 

retention. The Postal Service 

understands this retention requirement 

to apply to sender and recipient name 

and address information for each 

mailing. Currently, the Postal Service 

does not organize or retain handwritten 

or typed Express Mail mailing labels for 

the designated statutory retention 

period. To comply with this 

requirement, the Postal Service 

proposes that all customers seeking to 

mail under this exception use Express 

Mail service with Return Receipt. The 

Return Receipt must bear the sender’s 

eligibility number issued by the PCSC as 

well as the addressee’s full name and 

address, and be made returnable to the 

manager, PCSC, which will retain the 

record for the requisite period. Further, 

the business or government name and 

full mailing address of the sender and 

recipient would be required to appear 

on the Express Mail label, and match 

those listed on the customer’s 

application on file with the Postal 

Service. 18 U.S.C. 1716E(b)(3)(B)(ii)(IV). 

The PACT Act provides that eligible 

mailings under the business/regulatory 

purposes exception ‘‘be delivered only 

to a verified employee of the recipient 

business or government agency, who is 

not a minor and who shall be required 

to sign for the mailing.’’ 18 U.S.C. 

1716E(b)(3)(B)(ii)(VII). For this 

exception, the term ‘‘minor’’ is defined 

as ‘‘an individual who is less than the 

minimum age required for the legal sale 

or purchase of tobacco products as 

determined by applicable law at the 

place the individual is located.’’ 18 

U.S.C. 1716E(b)(3)(C). To implement 

this requirement, the proposed rule 

would require that Express Mail service 

be used without the option for waiver of 

signature. Further, to ensure that 

delivery is effected on a person who is 

a representative of the company and not 

a minor, the proposed rule would 

require that all Express Mail shipments 

under this exception be required to be 

delivered using Hold for Pickup service. 

Hold for Pickup is shipped directly to 

a postal retail location, in lieu of being 

deposited at the recipient’s address. The 

package is held until the recipient 

retrieves it during retail office hours. 

This measure would reduce the 

potential that underage or unauthorized 

individuals may receive a nonmailable 

shipment of cigarettes or smokeless 

tobacco. Furthermore, the recipient 

would be required to furnish proof of 

age through production of a driver’s 

license, passport, or other governmentissued photo identification that lists age 

or date of birth, as well as proof that the 

recipient is an employee or agent of the 

business or government entity identified 

on the mailing label. 

Certain Individuals: The exception for 

certain individuals generally permits 

the mailing of small quantities of 

cigarettes or smokeless tobacco sent 

non-commercially by individual adults 

to businesses or other adults. 18 U.S.C. 

1716E(b)(4)(A). Such shipments can 

include, but are not limited to, the 

following: 

• Cigarettes and smokeless tobacco 

exchanged as gifts between individual 

adults; and 

• The return by a consumer of a 

damaged or unacceptable tobacco 

product to the manufacturer. 

For purposes of the certain 

individuals’ exception, the PACT Act 

requires the Postal Service to ‘‘verify 

that any person submitting an otherwise 

nonmailable tobacco product into the 

mails * * * is the individual identified 

on the return address label of the 

package and is not a minor.’’ 18 U.S.C. 

1716E(b)(4)(B)(ii)(I). Further, for a 

mailing addressed to an individual 

recipient, the PACT Act specifies that 

the sender affirm that the recipient is 

not a minor. 18 U.S.C. 

1716E(b)(4)(B)(ii)(II). For purposes of 

this exception, a minor is ‘‘an individual 

who is less than the minimum age 

required for the legal sale or purchase of 

tobacco products as determined by 

applicable law at the place the 

individual is located.’’ 18 U.S.C. 

1716E(b)(4)(C). 

To give effect to these statutory 

requirements, the proposed rule 

provides that shipments by individuals 

of cigarettes or smokeless tobacco would 

be required to bear the sender’s name in 

the return address, and that such 

shipments be presented in a face-to-face 

transaction with a postal employee. In 


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this manner, the Postal Service would 

be able to discharge its obligation to 

verify the sender’s age and confirm that 

the sender’s identification matches the 

name listed in the return address. Age 

and identity would be verified through 

the use of government-issued photo 

identification that lists age or date of 

birth, such as a driver’s license or 

passport. Further, for shipments 

addressed to an individual, the 

proposed rule would require that the 

recipient’s first and last name appear in 

the address block (in lieu of a generic 

descriptor, such as ‘‘resident’’ or 

‘‘occupant’’) on the mailpiece. To fulfill 

the requirements of the PACT Act, the 

proposed rule specifies that at the time 

of the mailing, the customer would be 

required to orally affirm to the accepting 

postal employee that the recipient is not 

a minor under the laws applicable to the 

recipient at the destination location. 

The PACT Act also specifies 

additional quantity and frequency 

limitations on the certain individuals’ 

exception. In particular, such mailings 

cannot weigh in excess of 10 ounces. 18 

U.S.C. 1716E(b)(4)(B)(ii)(III). Shipments 

entered under this exception are capped 

at no more than 10 mailings in any 30- 

day period. 18 U.S.C. 

1716E(b)(4)(B)(ii)(VII). Further, as with 

the business/regulatory purposes 

exception, such mailings may only be 

sent via mail classes that provide for the 

‘‘tracking and confirmation of the 

delivery.’’ 18 U.S.C. 

1716E(b)(4)(B)(ii)(IV). Again, the mail 

service that fulfills this requirement is 

Express Mail, which offers tracking 

information and confirmation of 

delivery. As explained above, the 

proposed rule specifies that eligible 

shipments under the certain 

individuals’ exception would be 

required to use Express Mail with Hold 

for Pickup service. 

The PACT Act provides that mailings 

under the certain individuals’ exception 

‘‘shall not be delivered or placed in the 

possession of any individual who has 

not been verified as not being a minor.’’ 

18 U.S.C. 1716E(b)(4)(B)(ii)(V). To 

implement this requirement, the 

proposed rule would require that 

Express Mail be delivered in the context 

of a face-to-face interaction between the 

recipient and postal employee, thereby 

enabling age verification. Each piece 

would be required to be marked with a 

special marking, thereby triggering the 

need for age verification at delivery: 

‘‘PERMITTED TOBACCO PRODUCT— 

DELIVER ONLY TO AGE-VERIFIED 

ADULT OF LEGAL AGE.’’ To ensure 

that delivery is effected on a person who 

is not a minor, the proposed rule would 

require that Express Mail shipments 

(other than Express Mail shipments to 

APO, FPO, or DPO addresses) under this 

exception be delivered using Hold for 

Pickup service, whereby the shipment 

would be held at a postal retail unit for 

pickup by the recipient. Further, the 

recipient would be required to furnish 

proof of age through production of a 

driver’s license, passport, or other 

government-issued photo identification 

that lists age or date of birth. 

The proposed rule provides that 

eligibility to mail under the certain 

individuals’ exception may be revoked 

by the manager, PCSC, in the event of 

failure to comply with any applicable 

rules and regulations. A customer may 

appeal an adverse decision to the 

manager, Mailing Standards. Decisions 

by the manager, Mailing Standards, to 

revoke a customer’s eligibility under 

this exception may be appealed to the 

Judicial Officer under 39 CFR part 953. 

Consumer Testing: The exception for 

consumer testing permits a legally 

operating cigarette manufacturer (or 

legally authorized agent) to mail 

cigarettes to verified adult smokers 

solely for consumer testing purposes. 18 

U.S.C. 1716E(b)(5)(A). Consumer testing 

is defined in the PACT Act as ‘‘testing 

limited to formal data collection and 

analysis for the specific purpose of 

evaluating the product for quality 

assurance and benchmarking purposes 

of cigarette brands or sub-brands among 

existing adult smokers.’’ 18 U.S.C. 

1716E(b)(5)(D)(ii). Notably, the statutory 

exception applies only to cigarettes and 

cigarette manufacturers (or legally 

authorized agents) and not to smokeless 

tobacco or non-manufacturer 

participants in the tobacco industry. 

The PACT Act limits eligibility to 

cigarette manufacturers that have ‘‘a 

permit, in good standing, issued under 

section 5713 of the Internal Revenue 

Code of 1986’’ and the legally authorized 

agents of such manufacturers. 18 U.S.C. 

1716E(b)(5)(A)(i). The PACT Act 

requires the Postal Service to ‘‘verify 

that any person submitting a tobacco 

product into the mails under this 

paragraph is a legally operating cigarette 

manufacturer permitted to make a 

mailing under this paragraph, or an 

agent legally authorized by the legally 

operating cigarette manufacturer to 

submit the tobacco product into the 

mails on behalf of the manufacturer.’’ 18 

U.S.C. 1716E(b)(5)(C)(ii)(I). As with the 

business/regulatory purposes exception, 

the Postal Service intends to discharge 

this obligation by requiring customers to 

submit an application to the manager, 

PCSC, for eligibility to mail under this 

exception. The application would 

require the applicant to provide 

information to establish that the 

customer, or the customer’s principal if 

the customer is a manufacturer’s agent, 

is a cigarette manufacturer in good 

standing under 26 U.S.C. 5713. In 

addition, the applicant would be 

required to identify all locations where 

mail containing cigarettes for consumer 

testing will be presented. Any changes 

to the customer’s information or entry 

locations would require a subsequently 

filed amendment to the customer’s 

application. As part of its application, 

the customer would sign a certification 

to the effect that the customer will 

comply with the following PACT Act 

requirements, 18 U.S.C. 

1716E(b)(5)(C)(ii)(II)–(III): 

• Any recipient of consumer testing 

shipments of cigarettes is an adult 

established smoker; 

• No recipient has made any payment 

for the cigarettes; 

• Any recipient will sign a written 

statement to the effect indicating that 

the recipient wishes to receive the 

mailings; 

• The manufacturer or the legally 

authorized agent of the manufacturer 

will offer the opportunity for any 

recipient to withdraw the recipient’s 

written statement at least once in every 

three-month period; and 

• Any package mailed under this 

exception will contain not more than 12 

packs of cigarettes (240 cigarettes), on 

which all taxes levied by the destination 

state and locality have been paid and all 

related destination state tax stamps or 

other tax-payment indicia have been 

applied. 

To facilitate administration and 

enforcement of this exception, the 

proposed rule also requires that the 

customer certify that it will maintain 

records establishing compliance with 

these obligations for a three-year period 

from the date of each mailing. 

Customers must provide copies of 

records establishing compliance to the 

manager, PCSC, upon request no later 

than ten business days after the date of 

the request. Before tendering any 

shipment under this exception, the 

mailer must present proof that the 

Postal Service has authorized the mailer 

to tender such shipments at that 

location. 

Customers whose applications are 

denied by the Manager, PCSC, may 

appeal to the manager, Mailing 

Standards. The proposed rule provides 

that eligibility to mail under the 

consumer testing exception may be 

revoked by the manager, Mailing 

Standards, in the event of failure to 

comply with any applicable rules and 

regulations. Decisions by the manager, 

Mailing Standards, to uphold the denial 

of an application or to revoke a 


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24538 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 

customer’s eligibility under the 

consumer testing exception may be 

appealed to the Judicial Officer under 

39 CFR part 953. To ensure that 

eligibility determinations remain 

current with respect to mailers’ 

behavior, the proposed rule provides 

that any authorization to mail under this 

exception would lapse if the mailer does 

not actually tender any such mail 

during any six-month period, and that 

the mailer must submit a new 

application for eligibility for any future 

mailings after that point. 

The PACT Act establishes quantity, 

frequency, and other limitations. The 

proposed rule accordingly limits 

quantity to twelve packs of cigarettes 

per package and frequency of no more 

than one package from any one 

manufacturer to an adult smoker during 

any 30-day period. 18 U.S.C. 

1716E(b)(5)(A)(ii)–(iii). The proposed 

rule also implements PACT Act 

requirements for payment of destination 

state and locality taxes and the use of 

tax stamps or other indicia. 18 U.S.C. 

1716E(b)(5)(A)(iv). Additionally, the 

proposed rule incorporates conditions 

for consumer testing: 

• That no payment by the recipient 

for the cigarettes is permitted; 

• The recipient must be paid a fee for 

participation in consumer tests; 

• The recipient must evaluate the 

cigarettes and provide feedback to the 

manufacturer in connection with the 

consumer test; and 

• The total calendar-year distribution 

of cigarettes under the consumer testing 

exception may not exceed one percent 

of the manufacturer’s total cigarette 

sales for the prior calendar year. 

18 U.S.C. 1716E(b)(5)(A)(v)(I)–(III), 

(B)(ii). 

Consistent with the PACT Act, the 

mailing of cigarettes for consumer 

testing purposes would not be permitted 

to states that prohibit the delivery of 

cigarettes to individuals, and these rules 

shall not preempt, limit, or otherwise 

affect any related state laws. 18 U.S.C. 

1716E(b)(5)(B)(i). The proposed rule 

provides that customers maintain 

records to establish compliance with all 

of these requirements for three years. 

The PACT Act requires that eligible 

shipments under this exception be sent 

via mail systems that provide for the 

‘‘tracking and confirmation of the 

delivery.’’ 18 U.S.C. 

1716E(b)(5)(C)(ii)(IV). As explained 

above, the mail service that fulfills this 

requirement is Express Mail service, 

which offers tracking information and 

confirmation of delivery. Consequently, 

the proposed rule specifies that eligible 

shipments under the consumer testing 

exception would be required to use 

Express Mail service. 

The PACT Act provides that eligible 

mailings under the consumer testing 

exception be delivered ‘‘only to the 

named recipient and only after verifying 

that the recipient is an adult.’’ 18 U.S.C. 

1716E(b)(5)(C)(ii)(VII). For purposes of 

the consumer testing exception, the 

term ‘‘adult’’ is defined in this exception 

as ‘‘an individual who is not less than 

21 years of age.’’ 18 U.S.C. 

1716E(b)(5)(D)(i). To implement this 

requirement, the proposed rule would 

require that Express Mail service be 

used without the option for waiver of 

signature. Further, to ensure that 

delivery is effected on a person who is 

the named individual on the package 

and at least 21 years of age, the 

proposed rule would require that all 

Express Mail shipments under this 

exception be required to be delivered 

using Hold for Pickup service. For age 

and identity verification, the recipient 

would be required to furnish proof of 

age through production of a driver’s 

license, passport, or other governmentissued photo identification that lists age 

or date of birth. 

The PACT Act provides that eligible 

mailings ‘‘be marked with marking that 

makes it clear to employees of the 

United States Postal Service that it is a 

permitted mailing of otherwise 

nonmailable tobacco products that may 

be delivered only to the named recipient 

after verifying that the recipient is an 

adult.’’ 18 U.S.C. 1716E(b)(5)(C)(ii)(VI). 

The Postal Service accordingly proposes 

that each mailing tendered under the 

consumer testing exception bear the 

following marking: ‘‘PERMITTED 

TOBACCO PRODUCT—DELIVER ONLY 

TO ADDRESSEE UPON AGE 

VERIFICATION—AGE 21 OR ABOVE.’’ 

The marking would be required to 

appear on the exterior of the address 

side of the mailing container, so as to 

ensure that eligible shipments are 

correctly identified as falling under the 

consumer testing exception. 

The PACT Act requires that the Postal 

Service maintain records ‘‘relating to a 

mailing’’ under the consumer testing 

exception for a three-year period 

beginning on the date of the mailing. 18 

U.S.C. 1716E(b)(5)(C)(ii)(V). Such 

information must be made available to 

certain law enforcement agencies during 

the designated period of retention. The 

Postal Service understands this 

retention requirement to apply to 

mailing information, including sender 

and address information, for each 

mailing. Currently, the Postal Service 

does not organize or retain handwritten 

or typed Express Mail mailing labels for 

the designated statutory retention 

period. To comply with this 

requirement, the Postal Service 

proposes that customers seeking to mail 

under this exception use Express Mail 

service with Return Receipt. The Return 

Receipt must bear the sender’s 

eligibility number issued by the PCSC, 

as well as the addressee’s full name and 

address, and be made returnable to the 

Manager, PCSC, who will retain the 

record for the requisite period. 

Public Health: The PACT Act 

provides that federal government 

agencies ‘‘involved in the consumer 

testing of tobacco products solely for 

public health purposes may mail 

cigarettes under the same requirements, 

restrictions, and rules and procedures 

that apply to consumer testing mailings 

of cigarettes by manufacturers,’’ with the 

exception that the agency shall not be 

required to pay recipients for 

participating in testing. 18 U.S.C. 

1716E(b)(6). The proposed rule 

accordingly creates a public health 

exception for federal agencies. This 

exception is made subject to the same 

mailing standards as those applied to 

manufacturers involved in consumer 

testing, with the exception that federal 

agencies do not need to comply with the 

mailing standard requiring that the 

customer certify that the recipient is 

being paid a fee for participation in 

consumer tests. 

The Postal Service accordingly invites 

comments on the following proposed 

revision of the Mailing Standards of the 

United States Postal Service, Domestic 

Mail Manual, incorporated by reference 

in the Code of Federal Regulations. See 

39 CFR 111. 

List of Subjects in 39 CFR Part 111 

Administrative practice and 

procedure, Postal Service. 

Accordingly, 39 CFR part 111 is 

proposed to be amended as follows: 

PART 111—[AMENDED] 

1. The authority citation for 39 CFR 

part 111 is revised to read as follows: 

Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– 

307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 

401, 403, 404, 414, 416, 3001–3011, 3201– 

3219, 3403–3406, 3621, 3622, 3626, 3632, 

3633, and 5001. 

2. Revise the following sections of 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM) as follows: 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM) 

* * * * * 


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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 24539 

600 Basic Standards for All Mailing 

Services 

601 Mailability 

* * * * * 

[Renumber current 601.11 and 12 as 

new 12 and 13, and add new 11 as 

follows:] 

11 Cigarettes and Smokeless Tobacco 

11.1 Definitions 

For this standard, we define terms as 

follows: 

a. Cigarette: any roll of tobacco 

wrapped in paper or in any substance 

not containing tobacco, and any roll of 

tobacco wrapped in any substance 

containing tobacco which, because of its 

appearance, the type of tobacco used in 

the filler, or its packaging and labeling, 

is likely to be offered to, or purchased 

by, consumers as a cigarette. The term 

cigarette includes roll-your-own tobacco 

and excludes cigars. 

b. Smokeless tobacco: any finely cut, 

ground, powdered, or leaf tobacco that 

is intended to be placed in the oral or 

nasal cavity or otherwise consumed 

without being combusted. 

c. Cigar: any roll of tobacco wrapped 

in leaf tobacco or in any substance 

containing tobacco, unless, because of 

its appearance, the type of tobacco used 

in the filler, or its packaging and 

labeling, the product is likely to be 

offered to, or purchased by, consumers 

as a cigarette. 

d. Roll-your-own tobacco: any tobacco 

which, because of its appearance, type, 

packaging, or labeling, is suitable for use 

and likely to be offered to, or purchased 

by, consumers as tobacco for making 

cigarettes or cigars, or for use as 

wrappers thereof. 

e. Consumer testing: testing limited to 

formal data collection and analysis for 

the specific purpose of evaluating the 

product for quality assurance and 

benchmarking purposes of cigarette 

brands or sub-brands among existing 

adult smokers. 

f. State: any of the 50 states of the 

United States, the District of Columbia, 

and any commonwealth, territory, or 

possession of the United States. 

11.2 Nonmailability 

Except as provided in 11.8.3, all 

cigarettes (including roll-your-own 

tobacco) and smokeless tobacco are 

nonmailable and shall not be deposited 

in or carried through the Postal Service 

mailstream. The Postal Service will not 

accept for delivery or transmit any 

package that it knows, or has reasonable 

cause to believe, contains nonmailable 

cigarettes or smokeless tobacco. In the 

event the Postal Service reasonably 

suspects that a mailer is tendering 

nonmailable cigarettes or smokeless 

tobacco, then the mailer bears the 

burden of proof in establishing 

eligibility to mail. Nonmailable 

cigarettes and smokeless tobacco 

deposited in the mail are subject to 

seizure and forfeiture. Any nonmailable 

cigarettes and smokeless tobacco 

products seized and forfeited shall be 

destroyed or retained by the Federal 

Government for the detection or 

prosecution of crimes or related 

investigations and then destroyed. 

Senders of nonmailable cigarettes and 

smokeless tobacco may be subject to 

seizure and forfeiture of assets, criminal 

fines, imprisonment, and civil penalties. 

The Postal Service has reasonable cause 

not to accept for delivery or transmit a 

package based on: 

a. A statement on a publicly available 

website, or an advertisement, by any 

person that the person will mail matter 

which is nonmailable under this section 

in return for payment; or 

b. The fact that the mailer or other 

person on whose behalf a mailing is 

being made is on the U.S. Attorney 

General’s List of Unregistered or 

Noncompliant Delivery Sellers. 

11.3 Mailability Exceptions 

Cigarettes and smokeless tobacco are 

mailable if one of the conditions in 11.4 

through 11.8 is met. These exceptions 

only apply to domestic mail under 

608.2.1, including mail to, from, and 

between military installations and Army 

Post Office (APO), Fleet Post Office 

(FPO), and Diplomatic Post Office (DPO) 

addresses, with the exception that 

delivery procedures for overseas 

military mail under the certain 

individuals’ exception in 11.6 may vary 

as practicable. These exceptions do not 

apply to mail treated as domestic under 

608.2.2 or international mail as defined 

in 608.2.3. 

11.4 Mailing Within Noncontiguous 

States 

Intra-Alaskan and intra-Hawaiian 

shipments of cigarettes or smokeless 

tobacco are mailable, provided that such 

mailings: 

a. Are presented in a face-to-face 

transaction with a postal employee 

within the state; 

b. Destinate in the same state of 

origin; 

c. Bear a valid complete return 

address that is within the state of origin; 

and 

d. Are marked with the following 

exterior marking on the address side of 

the mailpiece: ‘‘INTRASTATE 

SHIPMENT OF CIGARETTES OR 

SMOKELESS TOBACCO.’’ 

11.5 Exception for Business/ 

Regulatory Purposes 

Eligibility to mail and to receive mail 

under the business/regulatory purposes 

exception is limited to federal and state 

government agencies and legally 

operating businesses that have all 

applicable state and federal government 

licenses or permits and are engaged in 

tobacco product manufacturing, 

distribution, wholesale, export, import, 

testing, investigation, or research, only 

under the conditions in 11.5.1 through 

11.5.3. 

11.5.1 Application 

Each customer seeking to mail 

cigarettes or smokeless tobacco under 

the business/regulatory purposes 

exception must complete an application 

letter requesting to mail under the 

business/regulatory purposes exception. 

a. The applicant must furnish: 

1. Information about its legal status, 

any applicable licenses, and authority 

under which it operates; 

2. Information about the legal status, 

any applicable licenses, and operational 

authority for all entities to which the 

applicant’s mailings under this 

exception will be addressed; and 

3. All locations where mail containing 

cigarettes and smokeless tobacco will be 

presented. 

The applicant must update this 

information anytime it intends to mail 

to an entity not on its list. Only those 

shipments containing otherwise 

nonmailable tobacco addressed to 

recipients on the customer’s list of 

designated recipients would be eligible 

for the business/regulatory purposes 

exception. 

b. The applicant must establish its 

and its recipients’ eligibility as legally 

operating businesses that have all 

applicable state and federal government 

licenses or permits and are engaged in 

tobacco product manufacturing, 

distribution, wholesale, export, import, 

testing, investigation, or research; or, in 

the case of mailings for regulatory 

purposes, as a federal or state agency. 

c. Applications must be mailed to the 

manager, Pricing & Classification 

Service Center (PCSC), see 608.8.0 for 

address. The manager, PCSC, issues the 

initial agency decision of a 

determination of eligibility to mail 

under the business/regulatory purposes 

exception. 

d. Customers whose applications or 

amendments to existing applications are 

denied in whole or in part may appeal 

to the manager, Mailing Standards (see 

608.8.0). 

e. Eligibility to mail under the 

business/regulatory purposes exception 


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24540 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 

may be revoked by the manager, Mailing 

Standards, in the event of failure to 

comply with any applicable rules and 

regulations. Decisions by the manager, 

Mailing Standards, to uphold the denial 

of an application or to revoke a 

customer’s eligibility under the 

business/regulatory purposes exception 

may be appealed to the Judicial Officer 

under 39 CFR part 953. 

f. Upon written request by a state or 

federal agency, the manager, Mailing 

Standards, may, in his or her discretion, 

waive certain application requirements 

for mailings entered by the requesting 

state or federal agency for regulatory 

purposes. 

g. Any determination of eligibility to 

mail under this exception shall lapse if 

the authorized mailer does not tender 

any mail under this exception within 

any six-month period. After that time, 

the affected mailer must apply for and 

receive new authorization for any 

mailings under this exception. 

11.5.2 Mailing 

Customers eligible to mail under the 

business/regulatory purposes exception 

may enter mailings of cigarettes and 

smokeless tobacco only at the locations 

specified in the customer’s application. 

Before mailing any shipment under this 

exception, the mailer must present proof 

that the PCSC has authorized the mailer 

to mail such shipments at that location. 

All mailings under the business/ 

regulatory purposes exception must: 

a. Be entered as Express Mail with 

Hold for Pickup service (waiver of 

signature not permitted) (see 113); 

b. Be accompanied by a request for 

return receipt (PS Form 3811, see 

503.6), which must bear the sender’s 

eligibility number issued by the PCSC as 

well as the addressee’s full name and 

address, and be made returnable to the 

manager, PCSC — Tobacco Mailing Unit 

(see 608.8.0 for address), which will 

retain the record for a three-year period; 

c. Bear the marking ‘‘PERMITTED 

TOBACCO PRODUCT—DELIVER ONLY 

TO ADDRESSED BUSINESS/ 

AGENCY—RECIPIENT MUST FURNISH 

PROOF OF AGE AND EMPLOYMENT 

OR AGENCY.’’ on the address side of the 

mailpiece; and 

d. bear the business or government 

agency name and full mailing addresses 

of both the sender and recipient, both of 

which must match exactly those listed 

on the customer’s application on file 

with the Postal Service. 

11.5.3 Delivery 

Mailings bearing the marking for 

business/regulatory purposes can only 

be delivered to a verified employee of 

the addressee business or government 

agency. The recipient must show proof 

that he or she is an employee or agent 

of the business or government identified 

as the addressee on the mailing label. 

Delivery is completed under the 

following conditions: 

a. The recipient must be an adult of 

at least the minimum age for the legal 

sale or purchase of tobacco products at 

the place of delivery. The recipient must 

furnish proof of age via a driver’s 

license, passport, or other governmentissued photo identification that lists age 

or date of birth. 

b. Once age and the recipient’s 

identity as an employee or agent of the 

addressee are established, the recipient 

must sign PS Form 3849 and PS Form 

3811 in the appropriate signature 

blocks. 

11.6 Exception for Certain Individuals 

The exception for certain individuals 

permits the mailing of small quantities 

of cigarettes or smokeless tobacco by 

individual adults to businesses or to 

other adults. Such shipments may 

include, but are not limited to, cigarettes 

and smokeless tobacco exchanged as 

gifts between individual adults and a 

damaged or unacceptable tobacco 

product returned by a consumer to the 

manufacturer. Eligibility to mail under 

the certain individuals’ exception may 

be revoked by the manager, PCSC, in the 

event of failure to comply with any 

applicable rules and regulations. A 

customer may appeal an adverse initial 

decision to the manager, Mailing 

Standards (see 608.8.0). The mailer 

bears the burden of proof in establishing 

eligibility in the event of revocation. 

Decisions by the manager, Mailing 

Standards, to revoke a customer’s 

eligibility under this exception may be 

appealed to the Judicial Officer under 

39 CFR part 953. Mailings under this 

exception must be made under the 

conditions in 11.6.1 through 11.6.3. 

11.6.1. Entry and Acceptance 

Mailings under the certain 

individuals’ exception must be entered 

under the following conditions: 

a. Cigarettes or smokeless tobacco 

may only be mailed via a face-to-face 

transaction with a postal employee. 

b. Cigarettes or smokeless tobacco 

may only be entered by an adult of at 

least the minimum age for the legal sale 

or purchase of tobacco products at the 

place of entry. 

c. The individual presenting the 

mailing must furnish government-issued 

photo identification that lists age or date 

of birth, such as a driver’s license or 

passport, at the time of the mailing. The 

name on the identification must match 

the name of the sender appearing in the 

return address block of the mailpiece. 

d. For mailings addressed to an 

individual, at the time the mailing is 

presented, the customer must orally 

confirm that the addressee is an adult of 

at least the minimum age for the legal 

sale or purchase of tobacco products at 

the place of delivery. 

11.6.2 Mailing 

No customer may send or cause to be 

sent more than 10 mailings under this 

exception in any 30-day period. All 

mailings under the certain individual’s 

exception must: 

a. Be entered as Express Mail with 

Hold for Pickup service requested 

(except overseas military mail 

shipments (waiver of signature not 

available)); see 113. 

b. Bear the marking ‘‘PERMITTED 

TOBACCO PRODUCT—DELIVER ONLY 

TO AGE-VERIFIED ADULT OF LEGAL 

AGE’’ on the address side of the exterior 

of the mailpiece; 

c. Bear the full name and mailing 

address of the sender and recipient on 

the Express Mail label; 

d. Weigh no more than 10 ounces. 

11.6.3 Delivery 

Delivery under the certain 

individuals’ exception is made under 

the following conditions: 

a. The recipient signing for the 

Express Mail article must be an adult of 

at least the minimum age for the legal 

sale or purchase of tobacco products at 

the place of delivery. 

b. The recipient must furnish proof of 

age via a driver’s license, passport, or 

other government-issued photo 

identification that lists age or date of 

birth. 

c. Once age is established, the 

recipient must sign PS Form 3849 in the 

appropriate signature block. 

11.7 Exception for Consumer Testing 

The exception for consumer testing 

permits a legally operating cigarette 

manufacturer or a legally authorized 

agent of a legally operating cigarette 

manufacturer to mail cigarettes to 

verified adult smokers solely for 

consumer testing purposes. The 

manufacturer for which mailings are 

entered under this exception must have 

a permit, in good standing, issued under 

26 U.S.C. 5713. The consumer testing 

exception applies only to cigarettes and 

not smokeless tobacco. Items must be 

mailed under conditions in 11.7.1 

through 11.7.3. 

11.7.1 Application 

Each customer seeking to mail 

cigarettes under the consumer testing 


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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Proposed Rules 24541 

exception must submit an application 

letter to mail under consumer testing 

exception. The applicant must furnish: 

a. Information to establish that the 

customer, or the customer’s principal if 

the customer is a manufacturer’s agent, 

is a cigarette manufacturer in good 

standing under 26 U.S.C. 5713; 

b. If the customer is an agent of a 

manufacturer, complete details about 

the agency relationship with the 

manufacturer; and 

c. All locations where mail containing 

cigarettes for consumer testing will be 

presented. 

d. As part of its application, the 

applicant must certify in writing that it 

will comply with the following 

requirements: 

1. Any recipient of consumer testing 

samples of cigarettes is an adult 

established smoker; 

2. No recipient has made any payment 

for the cigarettes; 

3. Every recipient will sign a 

statement indicating that the recipient 

wishes to receive the mailings; 

4. The manufacturer or the legally 

authorized agent of the manufacturer 

will offer the opportunity for any 

recipient to withdraw the recipient’s 

written statement at least once in every 

three-month period; 

5. Any package mailed under this 

exception will contain not more than 12 

packs of cigarettes (maximum of 240 

cigarettes) on which all taxes levied on 

the cigarettes by the state and locality of 

delivery have been paid and all related 

state tax stamps or other tax-payment 

indicia have been applied; and 

6. The manufacturer will maintain 

records establishing compliance with 

these obligations for a three-year period 

from the date of each mailing. 

e. The applicant must establish its 

eligibility by submitting applications to 

the manager, Pricing & Classification 

Service Center (PCSC). 

f. The applicant must provide any 

requested copies of records establishing 

compliance to the manager, PCSC (see 

608.8.0), and/or the manager, Mailing 

Standards (see 608.8.0), upon request no 

later than 10 business days after the date 

of the request. 

g. The manager, PCSC, issues the 

initial agency decision of a 

determination of eligibility to mail 

under the consumer testing exception. 

Customers whose applications are 

denied in whole or in part may appeal 

to the manager, Mailing Standards. 

Eligibility to mail under the consumer 

testing exception may be revoked by the 

manager, Mailing Standards, in the 

event of failure to comply with any 

applicable rules and regulations. 

Decisions by the manager, Mailing 

Standards, to uphold the denial of an 

application or to revoke a customer’s 

eligibility under the consumer testing 

exception may be appealed to the 

Judicial Officer under 39 CFR part 953. 

h. Any determination of eligibility to 

mail under this exception shall lapse if 

the authorized mailer does not tender 

any mail under this exception within 

any six-month period. After that time, 

the affected mailer must apply for and 

receive new authorization for any 

further mailings under this exception. 

11.7.2 Mailing 

Customers eligible to mail under the 

consumer testing exception may enter 

mailings of cigarettes only at the 

locations specified in the customer’s 

application and under the following 

conditions: 

a. Before tendering any shipment 

under this exception, the mailer must 

present proof that the PCSC has 

authorized the mailer to tender such 

shipments at that location. 

b. All mailings under the consumer 

testing exception: 

1. Must be entered as Express Mail 

with Hold for Pickup service requested 

(waiver of signature not available); see 

113. 

2. Be accompanied by a request for 

return receipt (PS Form 3811; see 

503.6), which must bear the sender’s 

eligibility number issued by the PCSC, 

as well as the addressee’s full name and 

address, and be made returnable to the 

manager, PCSC—Tobacco Mailing Unit 

(see 608.8.0 for address); 

3. Must bear the marking 

‘‘PERMITTED TOBACCO PRODUCT— 

DELIVER ONLY TO ADDRESSEE UPON 

AGE VERIFICATION—AGE 21 OR 

ABOVE’’ on the address side of the 

exterior of the mailpiece; 

4. Must bear the full mailing 

addresses of both the sender and 

recipient on the Express Mail label. The 

name and address of the sender must 

match exactly those listed on the 

customer’s application on file with the 

PCSC; 

5. Are limited in tobacco contents to 

no more than 12 packs of cigarettes 

(maximum 240 cigarettes) on which all 

taxes levied on the cigarettes by the 

destination state and locality have been 

paid and all related state tax stamps or 

other tax-payment indicia have been 

applied; 

6. May not be addressed to an 

addressee residing in a state that 

prohibits the delivery or shipment of 

cigarettes to individuals in the 

destination state; 

7. May be sent only to an addressee 

who has not made any payment for the 

cigarettes, is being paid a fee for 

participation in consumer tests, and has 

agreed to evaluate the cigarettes and 

furnish feedback to the manufacturer in 

connection with the consumer test. 

c. Customers must maintain records to 

establish compliance with the 

requirements in 11.7. 

d. Mailing frequency may not exceed 

more than one package from any 

manufacturer to an adult smoker during 

any 30-day period. 

e. Nothing in these rules shall 

preempt, limit, or otherwise affect any 

related state laws. 

11.7.3 Delivery 

Mailings bearing the marking for 

consumer testing can only be delivered 

to the named addressee under the 

following conditions: 

a. The recipient signing for the 

Express Mail Hold for Pickup service 

(see 113) article must be an adult of at 

least 21 years of age. 

b. The recipient must furnish proof of 

age through production of a driver’s 

license, passport, or other governmentissued photo identification that lists age 

or date of birth. 

c. The name on the identification 

must match the name of the addressee 

on the Express Mail label. 

d. Once age is established, the 

recipient must sign the PS Form 3849 

and PS Form 3811 in the appropriate 

signature blocks. 

11.8 Public Health Exception 

Federal government agencies involved 

in the consumer testing of tobacco 

products solely for public health 

purposes may mail cigarettes under the 

mailing standards of 11.7, except as 

provided herein. The federal agency 

shall not be subject to the requirement 

that the recipient be paid a fee for 

participation in consumer tests. Upon 

written request, the manager, Mailing 

Standards, may, in his or her discretion, 

waive certain of the application 

requirements. 

* * * * * 

We will publish an appropriate 

amendment to 39 CFR part 111 to reflect 

these changes when the proposal is 

adopted. 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. 2010–10660 Filed 5–3–10; 4:15 pm] 

BILLING CODE 7710–12–P 


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