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

exclusion as an opportunity to evade the general mailing ban. If the mailers claim to the exclusion is not appropriately credible or verifiable, then that claim may not be sufficient to deprive the Postal Service of reasonable cause to believe that the item is a nonmailable ENDS. Therefore, the proposed rule would authorize Postal Service personnel, upon reasonable cause to believe that a package contains cigarettes, smokeless tobacco, or ENDS, to treat the package as nonmailable unless the customer has affirmatively, credibly, and verifiably indicated that the relevant contents are, in fact, mailable.
Commenters are invited to offer their views on this proposed standard for reasonable cause in connection with ENDS-type items or any other tobacco products. To the extent that commenters might propose alternative standards, commenters are advised to account specifically for the need to prevent abuse of the narrow exclusion of therapeutic and tobacco-cessation products; the asymmetry between mailers and the Postal Services access to information about the FDA-approval status and marketing of particular products; the Postal Services limited resources; and its limited legal authority to open mailpieces that are sent in sealed mail classes without a warrant.
39 U.S.C. 404c; 39 CFR 233.3c34, g12.
Applicability of Exceptions The existing Noncontiguous States, Business/Regulatory Purposes, and Certain Individuals exceptions appear to be articulated in terms that can apply to ENDS as well as to cigarettes and smokeless tobacco. As such, the proposed use of the umbrella term tobacco products in the rules for each exception would automatically apply all such existing rules to ENDS.
Commenters are nonetheless invited to identify any potential anomalies or other problems that this approach might create and to recommend solutions for such problems.
The Consumer Testing and Public Health exceptions apply only to cigarettes, and not to smokeless tobacco. 18 U.S.C. 1716Eb56. As noted earlier, the Act technically includes ENDS within the relevant definition of cigarettes. Without more, this would ordinarily indicate that these exceptions should apply to ENDS as well as other forms of cigarettes.
However, 18 U.S.C. 1716Eb5Aii or CiiIII confine the exceptions to packages containing not more than 12
packs of cigarettes 240 cigarettes.
Congress did not amend these
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provisions when it included ENDS, broadly defined, in the definition of cigarettes, and neither the text of the Act nor its legislative history contains any guidance as to how these conditions should apply to ENDS.
ENDS are not packaged in such standard quantities as traditional cigarettes. ENDS rely on devices that can be used in an open-ended fashion, with potentially limitless quantities of liquid filled cartridges, whereas traditional cigarettes are self-contained, single-use items. Moreover, ENDS filler liquids can contain varying quantities of nicotine, or even no nicotine, whereas cigarettes uniformly contain nicotine.
As such, it does not appear possible even to devise an administrable standard of equivalence that would allow 12 packs of cigarettes 240
cigarettes to be translated into some quantity of ENDS filler liquid, let alone ENDS products other than filler liquid.
Given the Acts broad definition of ENDS and the material differences between ENDS products and the types of products originally encompassed by the Consumer Testing and Public Health exceptions, it appears reasonable to construe the lack of accommodation for ENDS in the relevant statutory text to render those exceptions inapplicable to ENDS. To the extent that commenters believe that the Consumer Testing and Public Health exceptions should apply to ENDS, commenters are invited to recommend alternative standards consistent with Congresss apparent intent to limit the quantity of items mailed in packages under the exceptions. Commenters should explain in detail how any proposed alternative quantity limits are analogous to or otherwise consistent with those in 18
U.S.C. 1716Eb5Aii or CiiIII, or why such consistency is not necessary.
Commenters are also invited to furnish any relevant documentation or supporting information that may aid the Postal Service in evaluating their recommendations.
Effective Date of Eventual Final Rule Particularities here merit a brief discussion of the timing of the eventual final rule, in the interest of providing stakeholders with advance information.
Section 603a of the Act requires the Postal Service promulgate regulations to clarify the applicability of the prohibition on mailing of cigarettes to ENDS not later than 120 days after enactment i.e., April 26, 2021. Section 603b provides that the prohibition will apply to mailings of ENDS on and after the publication date of the final rule. In specifying this immediate effective date, Congress expressly
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abrogated the standard 30-day notice period for a final rule under the Administrative Procedure Act APA, which would otherwise apply to rulemakings concerning the mailability statute here. 5 U.S.C. 553d, 559; 39
U.S.C. 3001m. To the extent that this rulemaking concerns not only the mailing prohibition referenced in the Act, but also the application of exemptions from that prohibition, the APA permits those aspects of the eventual final rule likewise to take effect with less than 30 days notice e.g., immediately upon publication. 5 U.S.C.
553d1.
Joshua J. Hofer, Attorney, Ethics and Legal Compliance.
FR Doc. 202103393 Filed 21721; 11:15 am BILLING CODE 771012P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
EPAR10OAR20190599, FRL10019
38Region 10

Air Plan Approval; OR; Smoke Management Revision Environmental Protection Agency EPA.
ACTION: Proposed rule.
AGENCY:

Environmental Protection Agency EPA is proposing to approve Oregon State Implementation Plan SIP
revisions submitted on November 3, 2014 and September 27, 2019. The submitted revisions incorporate by reference the most recent updates to Oregons Smoke Management Plan. EPA
is acting only on the most recent version of such regulations as the previous versions are no longer in effect as a matter of state law. EPA is also making technical corrections related to previous approvals of components of Oregons SIP. EPA is proposing to determine that the changes are consistent with Clean Air Act requirements.
DATES: Comments must be received on or before March 22, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPAR10
OAR20190599, at https
www.regulations.gov. Follow the online instructions for submitting comments.
Once submitted, comments cannot be edited or removed from https
www.regulations.gov. EPA may publish any comment received to its public docket. Do not electronically submit any information you consider to be Confidential Business Information CBI
or other information the disclosure of SUMMARY:

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19FEP1