29662 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

Taking of Private Property 

This rule will not cause a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves establishing a safety zone 

around a fireworks display. An 

environmental analysis checklist and a 

categorical exclusion determination will 

be available in the docket where 

indicated under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard will amend 

33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T05–0023 to read as 

follows: 

§ 165.T05–0023 Safety Zone; Wicomico 

Community Fireworks, Great Wicomico 

River, Mila, VA 

(a) Regulated Area. The following area 

is a safety zone: Specified waters of the 

Great Wicomico River located within a 

420 foot radius of the fireworks display 

at approximate position 37°50′31′′ N/ 

076°19′42′′ W (NAD 1983) in the 

vicinity of Mila, VA. 

(b) Definition. For the purposes of this 

part, Captain of the Port Representative 

means any U.S. Coast Guard 

commissioned, warrant or petty officer 

who has been authorized by the Captain 

of the Port, Hampton Roads, Virginia to 

act on his behalf. 

(c) Regulations. (1) In accordance with 

the general regulations in § 165.23 of 

this part, entry into this zone is 

prohibited unless authorized by the 

Captain of the Port, Hampton Roads or 

his designated representatives. 

(2) The operator of any vessel in the 

immediate vicinity of this safety zone 

shall: 

(i) Stop the vessel immediately upon 

being directed to do so by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(ii) Proceed as directed by any 

commissioned, warrant or petty officer 

on shore or on board a vessel that is 

displaying a U.S. Coast Guard Ensign. 

(3) The Captain of the Port, Hampton 

Roads can be reached through the Sector 

Duty Officer at Sector Hampton Roads 

in Portsmouth, Virginia at telephone 

Number (757) 668–5555. 

(4) The Coast Guard Representatives 

enforcing the safety zone can be 

contacted on VHF–FM marine band 

radio channel 13 (165.65Mhz) and 

channel 16 (156.8 Mhz). 

(d) Enforcement Period. This 

regulation will be enforced on July 3, 

2010, from 9 p.m. until 10 p.m., with a 

rain date of July 4, 2010, from 9 p.m. 

until 10 p.m. 

Dated: May 6, 2010. 

M.S. Ogle, 

Captain, U.S. Coast Guard, Captain of the 

Port, Hampton Roads. 

[FR Doc. 2010–12682 Filed 5–26–10; 8:45 am] 

BILLING CODE 9110–04–P 

POSTAL SERVICE 

39 CFR Part 111 

Treatment of Cigarettes and 

Smokeless Tobacco as Nonmailable 

Matter 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

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Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 29663 

SUMMARY: The Postal Service is revising 

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 of the 

Prevent All Tobacco Cigarettes 

Trafficking (PACT) Act, which restricts 

the mailability of cigarettes and 

smokeless tobacco. 

DATES: Effective Date: June 29, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Anthony Alverno, 202–268–2997, or 

Mary Collins, 202–268–5440. 

SUPPLEMENTARY INFORMATION: 

On May 5, 2010, the Postal Service 

published a proposed rule Federal 

Register (75 FR 24534–24541) to 

implement the Prevent All Cigarette 

Trafficking (PACT) Act of 2009, Public 

Law 111–154. 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 by: 

• Creating disincentives for the illegal 

smuggling of tobacco products; 

• Enhancing enforcement tools to 

deal with cigarette smuggling; 

• Stemming trafficking, which 

increases the 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 

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 cigarettes or smokeless 

tobacco. As in the proposed rule, the 

final 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 

website, 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 is 

accordingly publishing this final rule to 

be effective on June 29, 2010. In this 

manner, all of the provisions, including 

the exceptions will be available to 

mailers as of June 29, 2010. 

Response to Comments Received 

The Postal Service received several 

comments in response to the proposed 

rule. We discuss the comments below 

and our response to each. 

One commenter, an association of 

state officials engaged in legal and law 

enforcement issues, expressed favorable 

comments on the proposed rule. The 

commenter stated that ‘‘strong and 

effective implementation’’ of the PACT 

Act would further the Act’s stated 

objectives, and the proposed rule 

furthers those criteria. The commenter 

explicitly endorsed the ‘‘reasonable 

cause’’ standard in proposed section 

601.11.2, by noting that it provides ‘‘a 

workable and effective means of 

identifying packages that are 

nonmailable under the PACT Act.’’ The 

commenter also expressed support for 

the proposed rule’s prohibition of 

cigarettes and smokeless tobacco in 

international mail. 

A second commenter offered 

suggestions on several aspects of the 

proposed rule. First, the commenter 

suggested that a cross-reference in 

601.11.2 was a typographical error, and 

the Postal Service has corrected the 

error in the final rule. Second, the 

commenter recommended that DMM 

601.11.5.1b specify more detailed 

documentation requirements regarding a 

mailer’s official licensing. This 

recommendation is well-taken, and 

although the Postal Service does not 

believe that it should be incorporated 

into the final rule at this time, the Postal 

Service will take the recommendation 

under advisement and will apply it as 

necessary in its administration of the 

application process. 

The same commenter also offered 

suggestions about the ‘‘certain 

individuals’’ exception in DMM 

601.11.6. The commenter noted that the 

proposed rule neglected to include 

explicit restriction of the exception to 

noncommercial uses, including gifts not 

connected in any way with a 

commercial transaction. The Postal 

Service agrees with this 

recommendation and has incorporated 

language in DMM 601.11.6 to address 

the specific concerns. In a suggestion 

shared with comments by a consumer 

advocacy group, the commenter also 

recommended that a sender under the 

certain individuals exception be 

required to make his or her required 

affirmation in writing, under penalty of 

perjury, rather than orally. The PACT 

Act does not require that this 

affirmation be in writing, however, and 

the Postal Service believes that such a 

requirement would diminish 

administrative efficiency while not 

contributing appreciably to compliance 

or enforcement, given the additional 

procedures for verifying recipient age. 

Finally, the commenter recommended 

that the consumer testing exception be 

revised in two ways. Under the 

commenter’s proposal, the written 

certification in proposed DMM 

601.11.7.1d (restyled as subparagraph b 

in the final rule) should include all of 

the conditions of 18 U.S.C. 

1716E(b)(5)(A)(v), not just the 

requirement that no payment be made 

by the recipient. (The consumer 

advocacy group suggested similar 

changes and that other conditions for 

the exception be incorporated within 

the certification.) The citation to clause 

1716E(b)(5)(A)(v) is inapposite, 

however: The cited provision specifies 

general conditions for the exception, but 

not for the mailer’s certification. The 

certification requirements are set forth 

expressly in 18 U.S.C. 

1716E(b)(5)(C)(ii)(II), and the Postal 

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29664 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 

Service believes it has accurately 

captured them in the proposed and final 

rules. The commenter also submits that 

the proposed DMM 601.11.7.2d is 

overbroad, in that it implies that a 

recipient can only receive one 

consumer-test mailing from any 

manufacturer at all in a 30-day period, 

rather than one mailing from any one 

manufacturer. In response to the 

commenter’s suggestion, the final rule 

has been revised accordingly to track 

the language of the statute. 

As noted above, the Postal Service 

received a comment from a consumer 

advocacy group that touched on several 

aspects of the proposed rule. The 

commenter recommended that mailers 

under the business/regulatory purposes 

and consumer testing exceptions be 

required to update their applications for 

all changes in pertinent information and 

that the mailers be required annually to 

verify the continuing accuracy of their 

information. As explained below, the 

Postal Service has clarified the updating 

requirement in the final rule. The 

commenter also noted that, as proposed, 

the consumer testing exception in DMM 

601.11.7.2b6 would not apply to 

recipients ‘‘residing’’ in a state that 

prohibits such shipments, whereas the 

corresponding PACT Act provision 

applies to any individuals ‘‘located’’ in 

such a state. The observation is apt, and 

the Postal Service has revised the final 

rule accordingly. 

The commenter suggested that the 

advice in DMM 601.11.2 regarding 

penalties is insufficiently specific and 

offers more detailed language for 

different types of violations. The Postal 

Service believes that this suggestion is 

unnecessary and goes beyond the intent 

of the proposed language, which is 

simply to alert mailers of the potential 

consequences of noncompliant 

mailings. To the extent that greater 

specificity might be desired, that 

specificity can be found in the text of 

the PACT Act itself. See 18 U.S.C. 

1716E(c)–(e). The commenter also 

recommended that the Postal Service 

require mailers under the consumer 

testing exception to provide a list of all 

potential recipients and that the Postal 

Service not accept any such mailing to 

individuals not listed. The Postal 

Service declines this suggestion as 

unnecessary, given that the mailer is 

already obligated to maintain records on 

all mailings. Moreover, it is unclear how 

such a requirement would enhance 

Postal Service administration or serve 

any clear purpose. The commenter 

further advised that the Postal Service 

should bar any consumer test mailings 

that weigh significantly more than 12 

packs of cigarettes, or 12 ounces. While 

the Postal Service appreciates the desire 

for more specific guidelines, the Postal 

Service declines the proposal, as a 

weight-based standard is an ill-fitting 

proxy for a content-based regulation, 

and the proposal could bar a substantial 

amount of legitimate mailings. For 

example, a lesser number of packs 

combined with heavier non-cigarette 

matter could penetrate a weight cap 

without transgressing the PACT Act’s 

12-pack limit. Finally, the commenter 

advises that pipe tobacco, ‘‘little cigars,’’ 

and other tobacco products labeled as 

such may present challenges in 

applying the PACT Act. The concern is 

duly noted and discussed further in 

response to two of the other comments. 

The Postal Service received one 

comment from a tribal nation. The 

comment notes a lack of tribal 

consultation concerning the proposed 

rule, citing a Presidential Memorandum 

on Consultation (November 5, 2009), a 

treaty commitment, and Executive 

Order 13175. The Presidential 

memorandum and Executive Order 

13175 apply to ‘‘agencies’’ as defined in 

44 U.S.C. 3502(1), however, and not 

specifically to the Postal Service, which 

is an independent establishment of the 

executive branch. 39 U.S.C. 101; see 

Kuzma v. United States Postal Service, 

798 F.2d 29, 32 (2d Cir. 1986), cert. 

denied, 479 U.S. 1043 (1987); see also 

Shane v. Buck, 658 F. Supp. 908,914– 

15 (D. Utah 1985), aff’d, 817 F.2d 87 

(10th Cir. 1987). The proposed rule is 

not limited in effect to any tribal nation 

or to tribal nations generally; rather, it 

applies to all users of the mails 

nationwide in the same manner as all 

other postal regulations. Moreover, the 

Postal Service has also provided 

adequate notice and an opportunity for 

meaningful and timely input through 

the rulemaking process, and the 

commenter is invited to contact the 

persons identified in this notice to 

arrange any further consultations that 

the commenter would find helpful. 

The commenter also advised that the 

Postal Service should forgo enforcement 

of the PACT Act’s mailability 

requirements until after the Department 

of Justice has compiled the List of 

Unregistered or Noncompliant Delivery 

Sellers required by Section 2A(e) of the 

PACT Act. The Postal Service 

understands that the list may not be 

available until 180 days after the PACT 

Act’s enactment, but notes that Congress 

has directed the mailability provisions 

to take effect 90 days after enactment. 

Until the list is available, it cannot be 

used for enforcement of the mailability 

rules. Nevertheless, the Postal Service 

notes that the statute provides other 

criteria, including a mailer’s advertising, 

for determining whether it has 

reasonable cause to believe a mailing 

contains nonmailable tobacco products. 

One commenter questioned whether 

infrequent lightweight shipments of 

tobacco between individuals would be 

allowed under the PACT Act. Consistent 

with the PACT Act and the proposed 

rule, the final rule permits individual 

customers to send shipments of 

cigarettes and smokeless tobacco to 

other individuals in certain contexts. 

All intra-State shipments will be 

permitted within Alaska and Hawaii, 

including shipments between two 

individuals located within one of those 

states. Otherwise, individual customers 

may mail small quantities of cigarettes 

and smokeless tobacco in domestic 

mail, subject to the requirements to the 

‘‘certain individuals’’ exception 

described in DMM 601.11.6. This 

includes mail to Army Post Office 

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

Diplomatic Post Office (DPO) locations 

where cigarettes and smokeless tobacco 

are not restricted by the host country. 

See Overseas Military/Diplomatic Mail 

in the Postal Bulletin. 

One commenter advised that the 

regulation is unnecessary, while another 

expressed concern that the proposed 

rule would lead to loss of employment 

for postal employees and higher postage 

increases. To clarify, the Postal Service 

is implementing requirements imposed 

by the PACT Act. The Postal Service 

does not have discretion to waive the 

Act’s requirements. One of the 

consequences of the legislation is to 

prohibit sales transactions of cigarettes 

and smokeless tobacco conducted by 

mail. One of the commenters further 

suggested that clove cigarettes, which 

the commenter believed to be classified 

as cigars, purchased from vendors 

abroad would appear to fall within the 

scope of the proposed rule. Under 

Section 907(a)(1)(A) of the Federal 

Food, Drug, and Cosmetic Act, as 

amended by the Family Smoking 

Prevention and Tobacco Control Act 

(Pub. L. 111–31), flavored cigarettes and 

tobacco products marketed as cigarettes, 

including those with clove flavoring, are 

prohibited in the United States. To the 

extent that bona fide cigars are 

concerned, a cigar is defined, for 

purposes of the PACT Act, as 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. The PACT Act 

and the proposed rule’s mailability 

prohibitions would not apply to 

imported tobacco products that are, in 

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Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 29665 

fact, classified by U.S. Federal 

authorities as cigars. Other requirements 

may, however, apply to imported, 

mailable tobacco products, and as such, 

foreign mailers should contact private 

counsel or customs authorities to 

determine any applicable importation 

requirements. 

Another commenter inquired whether 

it would be permissible to mail two to 

three cans of ‘‘snus’’ from Sweden to a 

friend in the United States. Because the 

Postal Service understands snus to be a 

form of smokeless tobacco, as defined 

by the PACT Act, it would fall within 

the scope of the rules at hand. As 

explained in the proposed rule, 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 United States. 

Therefore, the Postal Service does not 

believe that any alternative exists at this 

time to allow U.S. persons to send or 

receive smokeless tobacco products, 

such as snus, in international mail 

under the PACT Act’s exceptions. 

Two comments were received from 

retail associations. One expressed full 

support for the proposed rule, and 

offered no changes in connection with 

the rulemaking. The other association 

offered several suggestions. First, the 

commenter suggested that the required 

markings be changed from ‘‘PERMITTED 

TOBACCO PRODUCT’’ to ‘‘PERMITTED 

TOBACCO MAILING,’’ for consistency 

with the PACT Act. This suggestion is 

well-taken and adopted in the final rule. 

The commenter also suggested that for 

certain exceptions, the term 

‘‘PERMITTED’’ be deleted from the 

marking. The Postal Service believes 

that the term ‘‘PERMITTED’’ is 

acceptable in the context of all 

exceptions, since it serves as an 

instruction to personnel that the mailing 

is permissible and not prohibited from 

the mail. The commenter also suggested 

that the Postal Service require an oath 

or affirmation for all exceptions to the 

effect that all taxes have been paid on 

the tobacco product being mailed. As 

the commenter noted, the consumer 

testing exception requires that all taxes 

be paid on consumer testing samples; 

however, Congress did not impose 

similar restrictions in the context of 

other exceptions. The Postal Service 

disagrees with the commenter that oaths 

or affirmations regarding tax compliance 

are necessary upon mailing under the 

other exceptions, particularly 

considering that the exceptions’ 

collective scope excludes all 

commercial transactions with 

consumers, where the issue of taxation 

would be most acute. Finally, the 

commenter suggested that postal retail 

locations include signage to the effect 

that it is illegal to mail tobacco (subject 

to certain exceptions) and that severe 

penalties apply. The commenter noted 

that its suggestion does not need to be 

part of the final rule. The Postal Service 

appreciates that there is a need for 

public education, but agrees with the 

commenter that such signage need not 

be part of the final rule. 

One commenter questioned whether 

the scope of the proposed rule as it 

applies to ‘‘little cigars,’’ which the 

commenter states are roughly the same 

size as a cigarette, are often wrapped in 

reconstituted tobacco, and often have a 

filter. The commenter stated that the 

definitions used in the PACT Act are 

ambiguous and should be clarified. In 

particular, the commenter suggested 

that the definition in the proposed rule 

incorporate Alcohol, Tobacco, and 

Firearms Revenue Ruling 73–22 with 

respect to the classification of little 

cigars. The Postal Service disagrees with 

the commenter that the definitions 

should be further clarified at this time, 

and notes that the definitions are taken 

directly from the definitions in the 

PACT Act. The Postal Service does not 

believe this rulemaking can resolve all 

of the issues presented by the 

commenter, particularly since the 

product described in the commenter’s 

letter is not uniform. 

One commenter, a tobacco company, 

offered several observations on the 

proposed rule. First, with respect to the 

business/regulatory purposes exception, 

the commenter stated that the 

requirement for advance applications by 

mailers would prove to be an 

administrative burden on the Postal 

Service and would result in delays. The 

commenter offered similar observations 

on the consumer testing exception and 

suggested that the Postal Service simply 

require registration in advance. The 

Postal Service appreciates these 

concerns and is examining methods to 

streamline the process, including the 

possible use of a standardized form for 

applications, should the anticipated 

volume of applications so warrant. 

However, Congress specifically charged 

the Postal Service with verifying that 

mailings under these exceptions are sent 

by businesses with all proper licenses, 

an obligation that inheres a measure of 

due diligence. 

Second, the commenter advised that 

the required markings on the packages 

comply with section 2A(b) of the 

Jenkins Act, which requires that 

delivery sellers apply the following 

marking to eligible shipments: 

‘‘CIGARETTES/SMOKELESS 

TOBACCO: FEDERAL LAW REQUIRES 

THE PAYMENT OF ALL APPLICABLE 

EXCISE TAXES, AND COMPLIANCE 

WITH APPLICABLE LICENSING AND 

TAX-STAMPING OBLIGATIONS.’’ The 

commenter further suggested that the 

Postal Service either not require its own 

separate markings or else unify its 

required markings for simplicity. The 

Postal Service disagrees with this 

suggestion. As an initial matter, section 

2A(b) of the Jenkins Act applies to 

shipments of delivery sellers. Such 

shipments are explicitly prohibited from 

the mail, with the exception of 

shipments entirely within Alaska and 

Hawaii. Consequently, this marking is 

not pertinent to excepted postal 

shipments, since delivery sales may not 

be sent via U.S. mail (except within 

Alaska and Hawaii). Moreover, unique 

markings on excepted postal shipments 

are essential, because the acceptance 

and delivery rules vary according to the 

applicable exception, and the markings 

offer important guidance to postal 

personnel responsible for handling 

tobacco shipments. As an example, the 

minimum age for delivery of a consumer 

testing or public health cigarette sample 

is always 21; however, a shipment 

delivered to an individual may be 

subject to a lower minimum age (18 or 

19, depending on State or local law). 

There is no way for postal employees to 

apply the correct minimum age 

requirement absent the use of a unique 

marking. 

Third, the commenter suggested that 

the Postal Service work with interested 

parties to further enhance these rules in 

order to streamline the overall process 

of compliance. The Postal Service 

welcomes the opportunity to further 

improve these rules and encourages 

customers to continue to submit their 

ideas for improvement. 

Another comment submitted by a 

tobacco company offered several 

suggestions on the proposed rule. First, 

the commenter disagreed with the 

proposed rule’s requirement that 

excepted shipments (except intra-State 

shipments in Alaska and Hawaii) use 

‘‘hold for pickup’’ service. The 

commenter believed that this 

requirement would be unduly 

burdensome and would affect its 

business operations. The commenter 

offered several illustrations to show the 

difficulties imposed by the hold for 

pickup requirement and urged that it 

not be incorporated in the final rule. 

The Postal Service appreciates the 

commenter’s concerns; however, the 

final rule maintains the requirement for 

Express Mail with hold for pickup for 

the business/regulatory purposes, 

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29666 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 

certain individuals, consumer testing, 

and public health exceptions because 

such a measure will enable the Postal 

Service to focus its resources on 

implementing the PACT Act’s unique 

delivery requirements, which have no 

precedent in postal operations. This, in 

turn, will enable the Postal Service to 

tailor the training it must give to 

personnel involved in the delivery of 

packages, which in turn will provide 

better controls to prevent tobacco from 

reaching minors. Nevertheless, the 

Postal Service’s management is in the 

process of examining whether its 

services should be changed to align 

better with the PACT Act’s 

requirements. The PACT Act’s short 

timeframe for implementation does not 

permit the Postal Service to develop 

more creative product solutions that 

may serve the commenter’s needs at this 

early stage. 

The commenter also raised several 

questions about the application process. 

Specifically, the commenter queried 

whether a form will be created and 

submitted. At this time, the final rule 

speaks of an application letter. Between 

the final rule’s publication in the 

Federal Register and its effective date or 

some time thereafter, however, the 

Postal Service may decide to develop a 

form for use in the application process. 

The Postal Service will update its DMM 

regulations should a form be instituted 

in lieu of an application letter. 

The commenter also questioned the 

application process, and suggested that 

rules regarding updates to applications 

be clarified. As noted above, the PACT 

Act charges the Postal Service with 

verifying the eligibility of a customer 

using the business/regulatory purposes, 

consumer testing, and public health 

exceptions. Consequently, the final rule 

requires that a mailer maintain the 

accuracy of all information in its 

application. Additionally, with respect 

to the business/regulatory purposes 

exception, the Postal Service is 

explicitly charged with responsibility of 

verifying the eligibility of the addressees 

to which business/regulatory mailings 

are sent. For this reason, a mailer cannot 

mail to an addressee until the eligibility 

of that addressee is verified, which 

implies that the applicant must await 

the issuance of an updated eligibility 

letter listing the addressee as an eligible 

recipient of a business/regulatory 

mailing. 

The commenter also questioned the 

use of eligibility numbers issued by the 

Pricing and Classification Service 

Center (PCSC). The point of the 

eligibility number is simply to facilitate 

the organization of Return Receipts sent 

to the PCSC for shipments under the 

business/regulatory purposes, consumer 

testing, and public health exceptions. 

For clarity, the final rule indicates that 

each authorization letter under those 

exceptions will be assigned its own 

unique number. In addition, the final 

rule is clarified to state that the 

eligibility number must appear in the 

return address of the return receipt, and 

mailings must be returned to sender if 

the mailer’s eligibility number is 

missing in the address block of the 

return receipt. 

The commenter questioned the 

requirement that the applicant must 

reapply if no mailings take place every 

six months. The goal of this objective is 

to prevent eligible mailers from 

allowing information in their 

applications to become stale. The Postal 

Service nevertheless understands the 

potential paperwork burden on 

applicants and has determined to 

change this requirement from six 

months to three years. The Postal 

Service believes that that time frame is 

adequate to address the commenter’s 

concerns while continuing to meet the 

Postal Service’s administrative needs. 

Finally, the commenter questioned 

whether the final rule will include 

regulations governing all exceptions, 

and if not, then whether any shipments 

may be tendered under the various 

exceptions. The PACT Act 

nonmailability rules and intra-Alaska/ 

intra-Hawaii exception become effective 

on June 29, 2010, which is 90 days after 

the enactment of the PACT Act. 

Although the PACT Act grants the 

Postal Service up to 180 days (or 

through September 27, 2010) to 

implement rules to implement the 

business/regulatory purposes, certain 

individuals, consumer testing, and 

public health exceptions, the Postal 

Service has undertaken to unify its 

rulemaking into a single, final rule. The 

Postal Service does not have the 

discretion to postpone the effectiveness 

of the start date of the nonmailability 

prohibitions, and postponement of the 

final rule would have no effect insofar 

as the criminal and civil penalties of the 

PACT Act are concerned. Finally, the 

commenter suggested that the final rule 

be delayed until all of its concerns are 

addressed. Because delay in issuance of 

the final rule would imply that no 

mailer could send cigarettes or 

smokeless tobacco under any of the 

exceptions (excluding the 

noncontiguous states exception), the 

commenter’s suggestion is not adopted. 

A commenter noted that the proposed 

rule does not expressly provide that 

pipe tobacco is mailable. The PACT Act 

restricts the mailability of items that the 

Postal Service has reasonable cause 

under the PACT Act to believe contain 

cigarettes or smokeless tobacco, as those 

terms are defined in Section 1 of the 

Jenkins Act of 1949 (15 U.S.C. 375(2), 

(12) (as amended)). If a product falls 

outside of the PACT Act’s definitions 

for cigarettes or smokeless tobacco, then 

the product is not subject to the PACT 

Act’s restrictions, except where it 

happens to fall within the scope of the 

PACT Act’s reasonable cause standard. 

The fact that the PACT Act explicitly 

acknowledges the mailability of cigars, 

but not pipe tobacco or other extraneous 

tobacco products, does not suggest the 

nonmailability of those other tobacco 

products. 

The commenter went on to state that 

cigars and pipe tobacco must be 

mailable in all cases, citing Section 8 of 

the PACT Act. Section 8 expresses the 

sense of Congress that states should still 

be able to tax the remote sales of tobacco 

products. Section 8 of the PACT Act is 

not an affirmative statement of 

mailability. More significant than this 

statement of general intent is the PACT 

Act’s operative provision, codified at 18 

U.S.C. 1716E(a)(1), that the Postal 

Service ‘‘shall not accept for delivery or 

transmit through the mails any package 

that it * * * has reasonable cause to 

believe contains [nonmailable] 

cigarettes or smokeless tobacco.’’ Thus, 

Congress generally directed that a 

package be refused if the Postal Service 

has reasonable cause to believe it 

contains nonmailable cigarettes or 

smokeless tobacco. To the extent that 

Section 8 has any bearing on the instant 

rulemaking, it does not pose a conflict: 

States remain generally empowered to 

impose and collect taxes on tobacco 

products to the extent that those 

products can legally be sent through the 

mail or otherwise. 

The commenter further requested 

guidelines as to the burden of proof for 

a mailer to contest an initial finding of 

nonmailability. The amount and type of 

evidence required to overcome 

reasonable cause would depend on the 

facts of a particular case. 

Finally, the commenter expressed 

concern that, to the extent the proposed 

rule’s ‘‘reasonable cause’’ standard relies 

on the presence of an entity on the 

Attorney General’s List of Unregistered 

or Noncompliant Delivery Sellers, the 

standard could bar all shipments from 

such entities, including shipments that 

do not contain cigarettes or smokeless 

tobacco. In the commenter’s opinion, 

this exceeds the PACT Act’s restrictions 

and the Postal Service’s authority. The 

Postal Service disagrees. The PACT Act 

itself, and not merely the Postal 

Service’s proposed rule, defines 

‘‘reasonable cause’’ as including the 

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presence of an entity on the Attorney 

General’s List of Unregistered or 

Noncompliant Delivery Sellers, 

regardless of the package’s actual 

contents. 18 U.S.C. 1716E(a)(2)(B). 

Furthermore, the commenter’s attempt 

to distinguish between ‘‘delivery sellers’’ 

and sellers of other tobacco is 

unavailing, as the Attorney General’s 

List of Unregistered or Noncompliant 

Delivery Sellers pertains to delivery 

sellers of cigarettes and smokeless 

tobacco, and not remote sellers of other 

tobacco products. See 15 U.S.C. 375(5)– 

(6), 376A(e)(1)(A) (as amended). 

Explanation of Changes From Proposed 

Rule 

The final rule includes several 

additional changes and corrections. The 

first pertains to section 503 and 608 of 

the DMM, which includes standards for 

return receipt service. As explained in 

the proposed rule, the Postal Service’s 

administration of the PACT Act 

exceptions results in a requirement 

under certain exceptions that customers 

use return receipts and make them 

returnable to the Pricing & Classification 

Service Center (PCSC). Because return 

receipts are typically made returnable to 

the sender, the final rule includes a 

revision to DMM 503 and 608 that 

implements this procedure. 

Another change pertains to mail 

destined to APO/FPO/DPO destinations 

under the ‘‘certain individuals’’ 

exception. Changes to DMM sections 

601.11.3 and 601.11.6.2 clarify that 

mailings of cigarettes and smokeless 

tobacco are permitted to these 

destinations only if not otherwise 

restricted according to the requirements 

of the host country. Mailings from or 

between APO/FPO/DPO destinations 

are not eligible, however, because Hold 

for Pickup labels are not offered at these 

destinations for delivery in the United 

States. 

The final rule is clarified to ensure 

that proper controls are applied to 

shipments under certain exceptions. In 

particular, the final rule is modified to 

require face-to-face transactions 

(excluding Carrier Pickup and Pickup 

on Demand arrangements). The final 

rule is also clarified to the effect that 

Carrier Pickup and Pickup on Demand 

services are not available for permissible 

shipments of cigarettes and smokeless 

tobacco. These changes are reflected in 

DMM sections 601.11.4, 601.11.5.2, 

601.11.6.1, and 601.11.7.2. 

Nonsubstantive changes were made in 

the arrangement of the text in DMM 

section 601.11.2, so that standards 

related to the reasonable cause standard 

appear in sequence. 

The updating requirements for 

applicants under the business/ 

regulatory and consumer testing 

exceptions are clarified to apply to all 

information furnished on the customer’s 

application for as long as the mailer 

continues to mail under either 

exception. This results in a 

reorganization of some text in DMM 

section 601.11.5.1 and the addition of 

text in DMM section 601.11.7.1a. 

Language has been added to DMM 

section 601.11.6 to clarify that the 

certain individuals exception is only 

available for noncommercial shipments, 

and that senders must not receive direct 

or indirect compensation of any kind in 

connection with the contents being 

mailed. 

The verbiage for markings used for 

each exception, as listed in DMM 

sections 601.11.5.2c, 601.11.6.3b, and 

601.11.7.2b3, has been changed from 

‘‘PERMITTED TOBACCO PRODUCT’’ to 

‘‘PERMITTED TOBACCO MAILING.’’ 

Further, the marking and text of the 

delivery procedures for shipments 

under the business/regulatory purposes 

exception in DMM section 601.11.5 

were clarified to exclude delivery to the 

addressee’s agents, as the PACT Act 

only permits employees of the addressee 

to retrieve such shipments. 18 U.S.C. 

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

As explained above, the restriction on 

the number of mailings to a tester from 

any one manufacturer under the 

consumer testing exception in DMM 

section 601.11.7.2d was revised to 

conform to the PACT Act. 

For clarity, the final rule indicates 

that each authorization letter under the 

business/regulatory purposes, consumer 

testing, and public health exceptions 

will be assigned its own unique 

eligibility number, as noted in DMM 

sections 601.11.5.1c and 601.11.7.1e. 

Further, the final rule is clarified to state 

that the eligibility number must appear 

in the return address of the return 

receipt, and mailings must be returned 

to sender if the mailer’s eligibility 

number is missing in the address block 

of the return receipt. Otherwise, the 

Postal Service cannot fulfill its 

responsibility to maintain records of the 

mailing because it cannot tie the return 

receipt to the eligible mailer’s identity. 

In addition, the final rule refers to the 

‘‘PACT MAILING OFFICE’’ in lieu of the 

‘‘TOBACCO MAILING UNIT’’ and 

provides specific addressing in DMM 

section 608.4.1. 

The period for lapse in authorization 

and the requirement for re-application 

for eligibility under the business/ 

regulatory purposes, consumer testing, 

and public health exceptions has been 

changed from six months to three years. 

This change is reflected in DMM 

sections 601.11.5.1h and 601.7.1f. 

Finally, the final rule clarifies that the 

required marking for each exception is 

to be placed directly above, directly 

below, or to the left of the postage on 

the address side of the exterior of the 

mailpiece. This measure ensures that 

postal personnel will be able to identify 

the piece quickly as one falling within 

the eligible exceptions. 

The Postal Service hereby adopts the 

following changes to the Mailing 

Standards for the United States Postal 

Service, Domestic Mail Manual (DMM), 

which is incorporated by reference in 

the Code of Federal Regulations. See 39 

CFR 111.1 

List of Subjects in 39 CFR Part 111 

Administrative practice and 

procedure, Postal Service. 

Accordingly, 39 CFR Part 111 is 

amended as follows: 

PART 111—[AMENDED] 

■ 1. The authority citation for 39 CFR 

Part 111 continues 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) 

* * * * * 

500 Additional Mailing Services 

503 Extra Services 

* * * * * 

6.0 Return Receipt 

* * * * * 

6.3 Obtaining Service 

* * * * * 

[Add two new sentences to the end of 

the introductory paragraph of item 3.1 

as follows:] 

3.1 At Time of Mailing 

* * * An exception is made for 

certain restricted mailings of cigarettes 

and smokeless tobacco. When required 

by 601.11.5.2, 608.11.7.2, or 608.11.8, a 

mailer must address the sender’s 

address block to the Pricing and 

Classification Service Center (PCSC) 

PACT, Mailing Office (see 608.4.1 for 

address) 

* * * * * 

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29668 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 

600 Basic Standards for All Mailing 

Services 

601 Mailability 

* * * * * 

[Renumber current 601.11 and 12 as 

new 601.12 and 601.13, and add new 

601.11 as follows:] 

11. 0 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 601.11.3, 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. 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 will not accept for 

delivery or transmit any package that it 

knows, or has reasonable cause to 

believe, contains nonmailable cigarettes 

or smokeless tobacco. If 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. The 

Postal Service has reasonable cause not 

to accept for delivery or transmit a 

package based on: a. 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 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 sent from the 

United States to Army Post Office 

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

Diplomatic Post Office (DPO) addresses 

to which tobacco is not restricted (see 

703.2.3.1), 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 the following: a. Mail treated as domestic under 

608.2.2; 

b. International mail as defined in 

608.2.3; or 

c. Mail presented at APO, FPO, or 

DPO installations and destined to 

addresses in the United States or other 

APO, FPO, or DPO addresses. 

11.4 Mailing Within Noncontiguous 

States 

Applicable mailings may not be 

tendered through Pickup on Demand or 

Carrier Pickup services. 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 under the conditions in 11.5.1 

to 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. 

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. 

Only those shipments containing 

otherwise nonmailable tobacco 

addressed to recipients on the 

customer’s list of designated recipients 

are eligible for the business/regulatory 

purposes exception. 

c. Applications must be mailed to the 

manager, Pricing & Classification 

Service Center (PCSC), see 608.8.4.1 for 

address. The manager, PCSC, issues the 

initial agency decision of a 

determination of eligibility to mail 

under the business/regulatory purposes 

exception. A number is assigned to each 

letter of eligibility. 

d. The applicant must timely update 

the information in its application as 

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Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 29669 

necessary prior to conducting any 

mailing for as long as it continues to 

mail under the business/regulatory 

exception. 

e. 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). 

f. 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. A 

customer may appeal an adverse initial 

decision to the manager, Mailing 

Standards (see 608.8.0). 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. 

g. Upon written request by a state or 

Federal agency, the Manager, PCSC, 

may, in his or her discretion, waive 

certain application requirements for 

mailings entered by the requesting state 

or Federal agency for regulatory 

purposes. 

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 three-year 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. 

Applicable mailings may not be 

tendered through Pickup on Demand or 

Carrier Pickup services. 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 in a face-to-face 

transaction with a postal employee as 

Express Mail with Hold for Pickup 

service (waiver of signature and pickup 

services not permitted); 

b. Be accompanied by a request for PS 

Form 3811 return receipt, which must 

bear the sender’s PACT eligibility 

number issued by the PCSC in the 

return address block as well as the 

addressee’s full name and address, and 

be made returnable to the PCSC, PACT 

Mailing Office (see 608.4.1 for address); 

c. Bear the marking ‘‘PERMITTED 

TOBACCO MAILING—DELIVER ONLY 

TO ADDRESSED BUSINESS/ 

AGENCY—RECIPIENT MUST FURNISH 

PROOF OF AGE AND EMPLOYMENT’’ 

on the address side of the mailpiece 

(place the marking directly above, 

below, or to the left of the postage); 

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 of the 

business or government identified as the 

addressee on the mailing label 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 of the addressee 

are established, the recipient must sign 

PS Form 3849 and PS Form 3811 in the 

appropriate signature blocks. If mailer’s 

eligibility number is missing in the 

return address block of the PS Form 

3811, the mailing must be returned to 

sender. 

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. For purposes of this rule, 

‘‘gifts’’ do not include products 

purchased by one individual for another 

from a third-party vendor through a 

mail-order transaction, or the inclusion 

of cigarettes or smokeless tobacco at no 

additional charge with other matter 

pursuant to a commercial transaction. 

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. 

Applicable mailings may not be 

tendered through Pickup on Demand or 

Carrier Pickup services. 

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. Each 

mailing under the certain individuals 

exception must: 

a. Be entered as Express Mail; (waiver 

of signature and pickup services not 

permitted); 

b. Bear the marking ‘‘PERMITTED 

TOBACCO MAILING—DELIVER ONLY 

TO AGE-VERIFIED ADULT OF LEGAL 

AGE’’ on the address side of the exterior 

of the mailpiece (place the marking 

directly above, below, or to the left of 

the postage); 

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; 

e. Not be sent to APO/FPO/DPO 

addresses to which the mailing of 

tobacco is restricted (see 703.2.3.1); 

f. With the exception of shipments 

from civilian locations to APO/FPO/ 

DPO addresses, request delivery through 

Hold for Pickup service; and 

g. Not be entered at an APO/FPO/DPO 

installation. 

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29670 Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 

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 Consumer Testing Exception 

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 

exception must submit an application 

letter to mail under consumer testing 

exception. In support of its application, 

the following must be met: 

a. The applicant must furnish 

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; if the 

customer is an agent of a manufacturer, 

complete details about the agency 

relationship with the manufacturer; and 

all locations where mail containing 

cigarettes for consumer testing will be 

presented. The applicant must timely 

update all information in its application 

as necessary prior to conducting any 

mailing for as long as it continues to 

mail under the consumer testing 

exception. 

b. 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. 

c. The application must be submitted 

to the manager, Pricing & Classification 

Service Center (PCSC) (see 608.8.4.1 for 

address). 

d. The applicant must provide any 

requested copies of records establishing 

compliance to the manager, PCSC, and/ 

or the manager, Mailing Standards (see 

608.8.0), upon request no later than 10 

business days after the date of the 

request. 

e. The manager, PCSC, issues the 

initial agency decision of a 

determination of eligibility to mail 

under the consumer testing exception. A 

number is assigned to each letter of 

eligibility. 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, PCSC, 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. 

f. 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 three-year 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. Applicable mailings may 

not be tendered through Pickup on 

Demand or Carrier Pickup services. 

Mailings must be tendered under the 

following conditions: 

a. Before tendering any shipment 

under this exception, the mailer must 

present proof (PCSC Eligibility letter) 

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 in face-to-face 

transactions with postal employees as 

Express Mail with Hold for Pickup 

service requested (waiver of signature 

and pickup services not permitted); 

2. be accompanied by a request for PS 

Form 3811 return receipt, which must 

bear the sender’s PACT eligibility 

number issued by the PCSC in the 

return address block, as well as the 

addressee’s full name and address, and 

be made returnable to PCSC, PACT 

Mailing Office (see 608.4.1 for address) 

3. must bear the marking 

‘‘PERMITTED TOBACCO MAILING— 

DELIVER ONLY TO ADDRESSEE UPON 

AGE VERIFICATION—AGE 21 OR 

ABOVE’’ on the address side of the 

mailpiece (place the marking directly 

above, below, or to the left of the 

postage); 

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 located 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 for a three year 

period. 

d. Mailing frequency may not exceed 

more than one package from any one 

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. 

WReier-Aviles on DSKGBLS3C1PROD with RULES

Federal Register / Vol. 75, No. 102 / Thursday, May 27, 2010 / Rules and Regulations 29671 

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 

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. If mailer’s eligibility 

number is missing in the return address 

block of the PS Form 3811 return 

receipt, the mailing must be returned to 

sender. 

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, PCSC, 

may, in his or her discretion, waive 

certain of the application requirements. 

* * * * * 

608 Postal Information and Resources 

* * * * * 

8.0 USPS Contact Information 

* * * * * 

8.4. PCSC and District Business Mail 

Entry Offices Contact Information 

[Add second listing to the PCSC under 

the current listing as follows:] 

4.1 Pricing and Classification Service 

Center (PCSC) 

For return receipts mailed under the 

provisions in 601.11.5, 601.11.7, and 

601.11.8, use the following address: 

PCSC, PACT MAILING OFFICE, USPS 

ELIGIBILITY NO. XX–00–0000, 90 

Church Street Suite 3100, New York, 

NY 10007–2951 

* * * * * 

We will publish an amendment to 39 

CFR part 111 to reflect these changes. 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. 2010–12869 Filed 5–25–10; 11:15 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0612–200914(a); 

FRL–9155–3] 

Approval and Promulgation of Air 

Quality Implementation Plans: Florida; 

Approval of Section 110(a)(1) 

Maintenance Plan for the 1997 8-Hour 

Ozone Standards for the Jacksonville, 

Tampa Bay, and Southeast Florida 

Areas 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Florida State Implementation Plan (SIP) 

concerning the maintenance plans 

addressing the 1997 8-hour ozone 

standards for the Jacksonville, Tampa 

Bay, and Southeast Florida 1997 8-hour 

ozone attainment areas in Florida, 

hereafter referred to as the ‘‘Jacksonville 

Area,’’ ‘‘Tampa Bay Area,’’ and 

‘‘Southeast Florida Area,’’ respectively. 

The Jacksonville Area is comprised of 

Duval County; the Tampa Bay Area 

comprises Hillsborough and Pinellas 

Counties; and the Southeast Florida 

Area comprises Broward, Dade, and 

Palm Beach Counties. These 

maintenance plans were submitted to 

EPA on July 2, 2009, by the State of 

Florida, through the Florida Department 

of Environmental Protection (FDEP), 

and ensure the continued attainment of 

the 1997 8-hour ozone national ambient 

air quality standards (NAAQS) through 

the year 2014 in the Jacksonville, Tampa 

Bay, and Southeast Florida Areas. EPA 

is approving the SIP revisions pursuant 

to section 110 of the Clean Air Act 

(CAA). These maintenance plans meet 

all the statutory and regulatory 

requirements, and are consistent with 

EPA’s guidance. On March 12, 2008, 

EPA issued revised ozone standards. On 

September 16, 2009, EPA announced it 

would reconsider the 2008 NAAQS for 

ozone and proposed a new schedule for 

designations for the reconsidered 

standards. EPA published a proposed 

rulemaking on January 19, 2010, for 

reconsideration of the 2008 NAAQS, 

and expects to finalize the reconsidered 

NAAQS by August 2010. The current 

action, however, is being taken to 

address requirements under the 1997 

8-hour ozone standards. Requirements 

for the Jacksonville, Tampa Bay, and 

Southeast Florida Areas under the 2010 

reconsidered ozone standards will be 

addressed in the future. 

DATES: This rule is effective on July 26, 

2010 without further notice, unless EPA 

receives relevant adverse comment by 

June 28, 2010. If EPA receives such 

comment, EPA will publish a timely 

withdrawal in the Federal Register 

informing the public that this rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2009–0612, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: benjamin.lynorae@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2009–0612,’’ 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. ‘‘EPA–R04–OAR–2009– 

0612.’’ EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

http://www.regulations.gov, including 

any personal information provided, 

unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

through http://www.regulations.gov or 

e-mail, information that you consider to 

be CBI or otherwise protected. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

WReier-Aviles on DSKGBLS3C1PROD with RULES