Cuba: Revisions to Gift Parcel and Baggage Restrictions, Creation of License Exception for Donated Consumer Communications Devices and Expansion of Licensing Policy Regarding Telecommunications, 45985-45990 [E9-21402]
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Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Rules and Regulations
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority.
This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, Subpart I, Section
40103. Under that section, the FAA is
charged with prescribing regulations to
assign the use of the airspace necessary
to ensure the safety of aircraft and the
efficient use of airspace. This regulation
is within the scope of that authority as
it establishes a low altitude Area
Navigation route (T-Route) at Rockford,
IL.
Environmental Review
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order 1050.1E, ‘‘Environmental
Impacts: Policies and Procedures,’’
paragraph 311a, 311b, and 311k. This
airspace action is not expected to cause
any potentially significant
environmental impacts, and no
extraordinary circumstances exist that
warrant preparation of an
environmental assessment.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
■
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order 7400.9S,
Airspace Designations and Reporting
Points, signed October 3, 2008, and
effective October 31, 2008, is amended
as follows:
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Paragraph 6011 United States Area
Navigation Routes.
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KELSI, IL to VEENA, WI [New]
KELSI, IL WP
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(Lat. 41°26′20″ N., long. 88°59′29″ W.)
SIMMN, IL WP
(Lat. 41°58′50″ N., long. 88°52′42″ W.)
BULLZ, IL WP
(Lat. 42°27′27″ N., long. 88°46′17″ W.)
VEENA, WI WP
(Lat. 42°42′18″ N., long. 88°18′14″ W.)
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Issued in Washington, DC, on September 1,
2009.
Ellen Crum,
Acting Manager, Airspace and Rules Group.
[FR Doc. E9–21432 Filed 9–4–09; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 736, 740 and 746
[Docket No. 090414648–9652–01]
RIN 0694–AE60
Cuba: Revisions to Gift Parcel and
Baggage Restrictions, Creation of
License Exception for Donated
Consumer Communications Devices
and Expansion of Licensing Policy
Regarding Telecommunications
AGENCY: Bureau of Industry and
Security, Department of Commerce.
ACTION: Final rule.
SUMMARY: This rule revises two existing
License Exceptions concerning exports
and reexports of gift parcels to Cuba and
of personal baggage taken by individuals
leaving the United States for travel to
Cuba. It also creates a new License
Exception authorizing the export and
reexport to Cuba of certain donated
consumer communications devices,
including certain computers and
software, mobile phones, and satellite
receivers. Finally, this rule revises the
scope of existing licensing policy
regarding certain telecommunications
links including satellite radio and
satellite television services. These
actions are among those directed by the
President on April 13, 2009 to enhance
the free flow of information to and from
Cuba and to promote contacts between
Americans and their relatives who
reside in Cuba as a means of
encouraging positive change in Cuba
and are consistent with the ongoing
support the United States has provided
to individuals and nongovernmental
organizations that support democracybuilding efforts in Cuba. These actions
do not suspend or terminate the United
States embargo of Cuba.
DATES: Effective Date: This rule is
effective September 3, 2009.
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ADDRESSES: Although there is no
comment period for this final rule, BIS
welcomes any comments from the
public on the amendments made by this
rule. Comments may be submitted by email directly to BIS at
publiccomments@bis.doc.gov (please
refer to RIN 0694–AE60 in the subject
line); or by delivery to Regulatory Policy
Division, Office of Exporter Services,
Bureau of Industry and Security, Room
H2705, U.S. Department of Commerce,
14th Street and Pennsylvania Avenue,
NW., Washington, DC 20230. Comments
on the information collection contained
in this rule should also be sent to
Jasmeet Seehra, Office of Management
and Budget (OMB), by e-mail to
jseehra@omb.eop.gov, or by fax to (202)
395–7285. Refer to RIN 0694–AE60 in
all comments.
FOR FURTHER INFORMATION CONTACT:
Anthony Christino, Foreign Policy
Division, Office of Nonproliferation and
Treaty Compliance at (202) 482–4252.
SUPPLEMENTARY INFORMATION:
Background
The United States maintains a
comprehensive embargo on trade with
Cuba. Pursuant to that embargo, all
items that are subject to the Export
Administration Regulations (EAR)
require a license for export or reexport
to Cuba unless authorized by a License
Exception. BIS administers export and
reexport restrictions on Cuba consistent
with the goals of the embargo and with
relevant legislation, including the
Cuban Liberty and Democratic
Solidarity Act of 1996 (LIBERTAD).
Accordingly, BIS may issue specific or
general authorizations for limited types
of transactions that support the goals of
United States policy while the embargo
remains in effect.
On April 13, 2009, the President
directed the Secretary of the Treasury
and the Secretary of Commerce, in
consultation with the Secretary of State,
to take certain actions to enhance the
free flow of information to and from
Cuba and to promote contacts between
Americans and their relatives who
reside in Cuba as a means of
encouraging positive change in Cuba. In
doing so, the President noted the United
States policy of promoting democracy
and human rights in Cuba and stated
that ‘‘measures that decrease
dependency of the Cuban people on the
Castro regime and that promote contact
between Cuban-Americans and their
relatives in Cuba are means to
encourage positive change in Cuba.’’
The policy of promoting human rights
and democracy in Cuba has long been
reflected in legislation. LIBERTAD’s
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purpose, in part, is to help the Cuban
people regain their freedom and
prosperity. In addition, even before
LIBERTAD, the Cuban Democracy Act
of 1992 reflected Congressional support
for assistance to encourage democracy
in Cuba, stating that the U.S.
Government may provide assistance,
through appropriate nongovernmental
organizations, for the support of
individuals and organizations to
promote nonviolent democratic change
in Cuba.
This rule implements the portions of
the President’s directive that relate to
the regulations of the Department of
Commerce by changing the existing
License Exceptions ‘‘Gift Parcels and
Humanitarian Donations (GFT)’’ and
‘‘Baggage (BAG),’’ creating a new
License Exception ‘‘Consumer
Communications Devices (CCD)’’ and
revising the scope of licensing policy
applicable to certain
telecommunications links and satellite
radio and satellite television services.
The changes made by this rule are
intended to update, consistent with
LIBERTAD and other relevant
legislation, certain provisions of the
United States embargo of Cuba to: (i)
Address the impact of economic and
technological changes that have taken
place in recent years; and (ii) ensure
that the embargo continues to support
the goals of promoting democracy in
Cuba and providing support for the
Cuban people. None of the changes
made by this rule suspend or terminate
the United States embargo of Cuba.
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Specific Changes Implemented by This
Rule
Changes to License Exception Gift
Parcels and Humanitarian Donations
(GFT)
License Exception Gift Parcels and
Humanitarian Donations (GFT) (§ 740.12
of the EAR) generally authorizes, among
other things, exports and reexports of
gift parcels by an individual (donor)
addressed to an individual or to a
religious, educational or charitable
organization (donee) for the use of the
donee or the donee’s immediate family.
Prior to the publication of this rule,
items eligible for export or reexport to
Cuba in gift parcels were limited to food
(including vitamins); medicines;
medical supplies and devices (including
hospital supplies and equipment for the
handicapped); receive-only radio
equipment for reception of commercial/
civil AM/FM and short wave publicly
available frequency bands, and batteries
for such equipment; and mobile phones
covered by Export Control Classification
Numbers (ECCNs) 5A991 or 5A992,
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software for those phones covered by
ECCN 5D992, and batteries, memory
cards, chargers and other accessories for
such mobile phones. Additionally, the
License Exception restricted recipients
in Cuba to identified family members of
the donor (grandparents, parents,
siblings, children and grandchildren).
Except for gift parcels of food, the
License Exception restricted a donor to
sending only one gift parcel per month
to the same household in Cuba. The
License Exception also limited the
combined total domestic retail value of
all items other than food included in a
gift parcel to $400.
This rule revises License Exception
GFT to add clothing, personal hygiene
items, seeds, veterinary medicines and
supplies, fishing equipment and
supplies, soap-making equipment, and
non-sensitive items normally sent as
gifts between individuals as items
eligible for export or reexport to Cuba in
gift parcels. The rule largely retains the
restriction that precludes items listed in
specific entries on the Commerce
Control List. However, the rule does
allow inclusion of consumer
communications devices controlled by
ECCNs 4A994, 4D994, 5A991, 5A992,
5D991, and 5D992. These devices,
which are described in more detail in
the discussion of the new License
Exception for consumer
communications devices below, are
widely available consumer products,
such as personal computers, that
facilitate communications.
This rule also revises License
Exception GFT to remove requirements
that the donee be a member of the
immediate family of the donor and that
only one gift parcel per month be sent
to the same household in Cuba. As
revised, License Exception GFT
authorizes a donor to send one gift
parcel per month to any individual
(other than certain Cuban Government
or Cuban Communist Party officials) or
to a charitable, educational, or religious
organization in Cuba that is not
administered or controlled by the Cuban
government. For example, hospitals or
schools administered or controlled by
the Cuban Government are not eligible
recipients under this License Exception.
Further, this rule revises the License
Exception to increase the combined
total domestic retail value of all items
included in a gift parcel from $400 to
$800.
Changes to License Exception Baggage
(BAG)
Prior to publication of this rule, and
since 2004, the terms of License
Exception BAG imposed a 44-pound
weight limit on the personal baggage of
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most travelers from the United States to
Cuba. This rule removes that limit. This
change implements the President’s
directive to lift weight restrictions on
accompanied baggage.
This rule does not remove or relax
any other restrictions that apply to
License Exception BAG. The regulations
continue to require that individuals
leaving the United States temporarily
(i.e., traveling) must bring back items
exported or reexported under this
License Exception unless they consume
the items abroad or are otherwise
authorized to dispose of them under the
EAR.
Donated Consumer Communications
Devices, Computers and Software
Prior to publication of this rule, with
the exception of certain items
authorized by License Exception GFT,
the export or reexport to Cuba of
donated consumer communications
devices required an individual validated
license.
This rule creates a narrowly tailored
License Exception Consumer
Communications Devices (CCD) to
authorize the export and reexport to
Cuba of donated consumer
communications devices that are
necessary to provide efficient and
adequate telecommunications services
between the United States and Cuba. In
generally authorizing the export or
reexport of donated consumer
communication devices to Cuba through
a new License Exception, this rule
strengthens the United States’
commitment to the support of
individuals and organizations to
promote nonviolent democratic change
in Cuba, consistent with the goals of
LIBERTAD and the Cuban Democracy
Act of 1992, and recognizes that recent
changes in communications technology
have facilitated the widespread
dissemination of information and
personal communications in ways that
have become increasingly essential for
democratic movements across the
world. This rule is also consistent with
the President’s goal, as stated in his
April 13 memorandum, to promote
contacts between Americans and their
relatives who reside in Cuba as a means
of encouraging positive change in Cuba.
New License Exception CCD
authorizes the export or reexport of
specific commodities and software that
are widely available for retail purchase
and that are commonly used to
exchange information and facilitate
interpersonal communications.
However, consistent with 22 U.S.C.
6005(a), this new License Exception
does not authorize U.S.-owned or
controlled entities in third countries to
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engage in reexports of foreign produced
commodities to Cuba for which no
license would be issued by the Treasury
Department pursuant to 31 CFR
515.559. This License Exception is valid
only for exports or reexports to Cuba.
The commodities and software exported
or reexported under this License
Exception must be donated, but the
License Exception provides no limits on
value or frequency of shipments.
Eligible end-users for items exported or
reexported pursuant to this License
Exception are individuals in Cuba other
than designated Cuban Government and
Communist Party officials, and also
independent non-governmental
organizations in Cuba. As is the case
with exports or reexports under License
Exception GFT, exports or reexports
under License Exception CCD may not
be made to organizations administered
or controlled by the Cuban Government.
The items authorized for export or
reexport under the new License
Exception are commodities and software
(except ‘‘encryption source code’’)
related to basic personal
communications devices that are widely
available for retail purchase in the
United States. These items include:
Mobile phones, including cellular and
satellite telephones; subscriber
information module (SIM) cards;
personal digital assistants; laptop and
desktop computers and peripherals such
as monitors, graphics accelerator cards,
data storage devices and media such as
disk drives, flash drives, writable
compact disks and floppy disks,
keyboards, mice, and printers including
commodities possessing IEEE 802.15.1
‘‘Bluetooth’’ wireless personal area
networking (WPAN) capability; Internet
connectivity devices including those
possessing IEEE 802.11 ‘‘Wi-Fi’’ and
IEEE 802.16 ‘‘WiMax’’ wireless
capabilities; satellite-based television
and radio receivers; digital music and
video players and recorders; personal
two-way radios; digital cameras and
memory cards therefor; and batteries,
chargers, carrying cases and similar
accessories for the equipment
authorized by this rule. This rule also
authorizes the export and reexport of
basic software for laptop and desktop
computers such as: Computer operating
systems and software (except
‘‘encryption source code’’) that enable
activities such as word processing,
producing spread sheets, producing
graphics presentations, sending and
receiving e-mail, Web browsing or
developing relational databases. When
applicable, the rule describes these
items as they are classified on the
Commerce Control List:
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14:52 Sep 04, 2009
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• Computers classified under ECCN
4A994.b or designated EAR99 that do
not exceed an adjusted peak
performance of 0.02 weighted teraflops;
• Disk drives and solid state storage
equipment classified as ECCN 5A992 or
designated EAR99;
• Input/output control units (other
than industrial controllers designed for
chemical processing) designated EAR99;
• Graphics accelerators and graphics
coprocessors designated EAR99;
• Monitors classified under ECCN
5A992 or designated EAR99;
• Printers classified under ECCN
5A992 or designated EAR99;
• Modems classified under ECCNs
5A991.b.2 or 5A992 or designated
EAR99;
• Network access controllers and
communications channel controllers
classified under ECCN 5A991.b.4 or
designated EAR99;
• Keyboards, mice and similar
devices designated EAR99;
• Mobile phones, including cellular
and satellite telephones, personal digital
assistants, and subscriber information
module (SIM) cards and similar devices
classified under ECCNs 5A992 or 5A991
or designated EAR99;
• Memory devices classified under
ECCN 5A992 or designated EAR99;
• ‘‘Information security’’ equipment,
‘‘software’’ (except ‘‘encryption source
code’’) and peripherals classified under
ECCNs 5A992 or 5D992 or designated
EAR99;
• Digital cameras and memory cards
classified under ECCN 5A992 or
designated EAR99;
• Television and radio receivers
classified under ECCN 5A992 or
designated EAR99;
• Recording devices classified under
ECCN 5A992 or designated EAR99;
• Batteries, chargers, carrying cases,
and accessories for the equipment
described above that are designated
EAR99; and
• ‘‘Software’’ (except ‘‘encryption
source code’’) classified under ECCNs
4D994, 5D991 or 5D992 or designated
EAR99 to be used for equipment
described above.
This change implements the
President’s directive to authorize,
consistent with national security
concerns, the export or reexport to Cuba
of donated personal communications
devices through a license exception.
Revised Scope of Licensing Policy
Regarding Telecommunications
Prior to publication of this rule,
§ 746.2(b)(2) of the EAR stated that
export of ‘‘Telecommunications
commodities may be authorized on a
case-by-case basis, provided the
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45987
commodities are part of an FCCapproved project and are necessary to
provide efficient and adequate
telecommunications between the United
Sates and Cuba.’’
This rule revises the text of
§ 746.2(b)(2) of the EAR to ensure that
the licensing policy allows for case-bycase review of exports or reexports of all
items necessary to provide efficient and
adequate telecommunications links,
including satellite radio and satellite
television, between the United States
and Cuba consistent with the
President’s April 13, 2009 directive. The
scope of items eligible for export or
reexport now includes any item
(commodity, technology, or software)
necessary to provide efficient and
adequate telecommunications links
between the United States and Cuba,
including links established through
third countries, and including links to
provide satellite radio or satellite
television services to Cuba. In making
this change, BIS notes that the
establishment of links through third
countries may be necessary to establish
efficient and adequate links between the
United States and Cuba. These changes
are consistent with the goal of
enhancing communications to promote
democracy in Cuba.
Technical and Conforming Changes
Although individual gift parcels may
be eligible for export pursuant to
License Exception GFT, as set forth in
§ 740.12(a) of the EAR, consolidated
shipments of multiple gift parcels are
not eligible for export under this
License Exception. BIS has issued a
number of licenses to parties
authorizing them to export consolidated
shipments of gift parcels to Cuba. As
part of this rule, BIS is amending
General Order No. 4, found in
Supplement No. 1 to part 736 of the
EAR, to authorize such license holders
to export consolidated shipments of all
gift parcels that are eligible for License
Exception GFT as of the effective date
of this rule. This modification is
appropriate because some previouslyissued licenses for consolidated
shipments limit the eligible
commodities and software, eligible
recipients, or limits on frequency or
dollar value based on the restrictions of
License Exception GFT in place at the
time the consolidation license was
issued. The amended General Order
does not, however, increase the total
value of exports permitted under, or
extend the expiration date of, any
license. Amending the General Order to
modify existing licenses in such a
manner will facilitate implementation of
the policy underlying this rule by
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allowing consolidators to include all gift
parcels consistent with the provisions of
License Exception GFT in their
consolidated shipments immediately
rather than having to wait until they
obtain a new license. Consolidators will
still need to apply for new licenses
when their existing licenses have been
completely used or have expired.
Section 740.2(a)(6) of the EAR
precludes use of any License Exception
to export or reexport to Cuba unless the
License Exception is listed in the
License Exception paragraph pertaining
to Cuba in part 746. This rule revises
§ 746.2(a)(1) to list the new ‘‘Consumer
Communications Devices’’ License
Exception that this rule creates.
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Change to Prohibitions Applying to Gift
Parcels Generally
Although not related to the
President’s April 13, 2009 directive, this
rule also makes ineligible for inclusion
in gift parcels to any destination items
listed on the Commerce Control List
with ‘‘encryption items’’ (EI) as a reason
for control. BIS is making this change
because of the sensitivity of such items.
Items controlled for EI reasons employ
sophisticated encryption techniques and
have not been designated as ‘‘mass
market’’ items by the United States
Government. Such items are not eligible
for export or reexport under License
Exception GFT because they are not
normally exchanged between
individuals as gifts. However, because
of the potential use of items controlled
for EI reasons by persons abroad to harm
U.S. national security, foreign policy
and law enforcement interests, BIS is
adding EI as a reason for control that
explicitly precludes use of License
Exception GFT to any destination. The
other reasons for control that trigger this
preclusion are national security, nuclear
nonproliferation, chemical and
biological weapons and missile
technology.
Rulemaking Requirements
1. This rule has been determined to be
a significant rule under Executive Order
12866.
2. Notwithstanding any other
provision of law, no person is required
to respond to, nor shall any person be
subject to a penalty for failure to comply
with a collection of information, subject
to the requirements of the Paperwork
Reduction Act, unless that collection of
information displays a currently valid
Office of Management and Budget
Control Number. This rule involves a
collection of information that has been
approved by OMB under control
number 0694–0088, which carries a
burden hour estimate of 58 minutes to
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prepare and submit form BIS–748P.
Miscellaneous and recordkeeping
activities account for 12 minutes per
submission. BIS believes that this rule
will make no material change to the
number of submissions or to the burden
imposed by this collection.
3. This rule does not contain policies
with Federalism implications as that
term is defined in Executive Order
13132.
4. The provisions of the
Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed
rulemaking, the opportunity for public
participation, and a delay in effective
date, are inapplicable because this
regulation involves a military or foreign
affairs function of the United States (See
5 U.S.C. 553(a)(1)). Further, no other
law requires that a notice of proposed
rulemaking and an opportunity for
public comment be given for this rule.
Because a notice of proposed
rulemaking and an opportunity for
public comment are not required to be
given for this rule under 5 U.S.C. 553,
or by any other law, the requirements of
the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) are not applicable.
Exports.
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(b) Notwithstanding any statements to the
contrary on the license itself, licenses
authorizing the export to Cuba of
consolidated gift parcels described in
paragraph (a) of this order that are valid on
September 3, 2009 authorize the export of
consolidated shipments to Cuba of gift
parcels that comply with the requirements of
License Exception GFT found in § 740.12(a)
of the EAR as of September 3, 2009.
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PART 740—[AMENDED]
3. The authority citation for part 740
is revised to read as follows:
■
Authority: 50 U.S.C. app. 2401 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.;
E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp.,
p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001
Comp., p. 783; Notice of August 13, 2009, 74
FR 41325 (August 14, 2009).
§ 740.12 Gift parcels and humanitarian
donations.
15 CFR Part 740
Administrative practice and
procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 746
Exports, Reporting and recordkeeping
requirements.
■ Accordingly, the Export
Administration Regulations (15 CFR
chapter VII, subchapter C) are amended
as follows:
PART 736—[AMENDED]
1. The authority citation for part 736
is revised to read as follows:
■
Authority: 50 U.S.C. app. 2401 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 2151 note; E.O.
12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996
Comp. p. 219; E.O. 13026, 61 FR 58767, 3
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR
44025, 3 CFR, 2001 Comp., p. 783; E.O.
13338, 69 FR 26751, May 13, 2004; Notice of
August 13, 2009, 74 FR 41325 (August 14,
2009); Notice of November 10, 2008, 73 FR
67097 (November 12, 2008).
2. General Order Number 4 of
Supplement No. 1 to Part 736 is
amended by revising the introductory
text and by revising paragraph (b) to
read as follows:
■
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General Order No. 4 of June 13, 2008, as
amended on September 3, 2009, amending
existing licenses for exports of consolidated
gift parcels to Cuba due to changes in License
Exception GFT.
4. Section 740.12 is amended by
revising paragraphs (a)(2)(i), (a)(2)(iii),
(a)(2)(iv) and (a)(2)(v) to read as follows:
15 CFR Part 736
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List of Subjects
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Orders
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(a) * * *
(2) * * *
(i) Item limitations.
(A) Prohibited items.
(1) For Cuba no items listed on the
Commerce Control List other than items
listed in § 740.19(b) of the EAR may be
included in a gift parcel.
(2) For all destinations, no items
controlled for chemical and biological
weapons (CB), missile technology (MT),
national security (NS), nuclear
proliferation (NP) or encryption items
(EI) reasons on the Commerce Control
List (Supplement no. 1 to part 774 of the
EAR) may be included in a gift parcel.
(3) Items prohibited for destinations
in Country Group D:1 or E:2. For
destinations in Country Group D:1 or
E:2, military wearing apparel may not be
included in a gift parcel regardless of
whether all distinctive U.S. military
insignia, buttons, and other markings
are removed.
(4) Gold bullion, gold taels, and gold
bars are prohibited as are items
intended for resale or reexport.
(B) Eligible items. For all destinations,
eligible items are food (including
vitamins); medicines, medical supplies
and devices (including hospital supplies
and equipment and equipment for the
handicapped); receive-only radio
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equipment for reception of commercial/
civil AM/FM and short wave publicly
available frequency bands, and batteries
for such equipment; clothing; personal
hygiene items; seeds; veterinary
medicines and supplies; fishing
equipment and supplies; soap-making
equipment; as well as all other items of
a type normally sent as gifts between
individuals (including items listed in
§ 740.19(b) of the EAR) except for those
items prohibited in paragraph
(a)(2)(i)(A) of this section. Items in gift
parcels must be in quantities normally
given as gifts between individuals.
Example to paragraph (a)(2)(i)(B) of
this section. A watch or piece of jewelry
is normally sent as a gift. However,
multiple watches, either in one package
or in subsequent shipments, would not
qualify for such gift parcels because the
quantity would exceed that normally
given between individuals. Similarly, a
sewing machine or bicycle within the
value limit of this License Exception
may be an appropriate gift. However,
subsequent shipments of the same item
to the same donee would not be a gift
normally given between individuals.
*
*
*
*
*
(iii) Frequency.
(A) Except for gift parcels of food to
Cuba, not more than one gift parcel may
be sent from the same donor to the same
donee in any one calendar month.
(B) There is no frequency limit on gift
parcels of food to Cuba.
(C) Parties seeking authorization to
exceed the frequency limit due to
compelling humanitarian concerns (e.g.,
for certain gifts of medicine) should
submit a license application in
accordance with §§ 748.1, 748.4 and
748.6 of the EAR to BIS with complete
justification.
(iv) Value. The combined total
domestic retail value of all commodities
and software in a single gift parcel may
not exceed $800. This limit does not
apply to food sent in a gift parcel to
Cuba.
(v) Ineligible recipients.
(A) No gift parcel may be sent to any
of the following officials of the Cuban
Government: ministers and viceministers; members of the Council of
State; members of the Council of
Ministers; members and employees of
the National Assembly of People’s
Power; members of any provincial
assembly; local sector chiefs of the
Committees for the Defense of the
Revolution; Director Generals and subDirector Generals and higher of all
Cuban ministries and state agencies;
employees of the Ministry of the Interior
(MININT); employees of the Ministry of
Defense (MINFAR); secretaries and first
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14:52 Sep 04, 2009
Jkt 217001
secretaries of the Confederation of Labor
of Cuba (CTC) and its component
unions; chief editors, editors and deputy
editors of Cuban state-run media
organizations and programs, including
newspapers, television, and radio; or
members and employees of the Supreme
Court (Tribuno Supremo Nacional).
(B) No gift parcel may be sent to any
of the following officials or members of
the Cuban Communist Party: members
of the Politburo; the Central Committee;
Department Heads of the Central
Committee; employees of the Central
Committee; and the secretaries and first
secretaries of provincial Party central
committees.
(C) No gift parcel may be sent to
organizations administered or
controlled by the Cuban Government or
the Cuban Communist Party.
*
*
*
*
*
§ 740.14
[Amended]
4. Section 740.14 is amended by:
a. removing ‘‘(h)’’ from the last
sentence of paragraph (b)(4)
introductory text and adding ‘‘(g)’’ in its
place:
■ b. removing paragraph (g); and
■ c. redesignating paragraph (h) as
paragraph (g).
■ 5. A new § 740.19 is added to read as
follows:
■
■
§ 740.19 Consumer Communications
Devices (CCD).
(a) Authorization. This License
Exception authorizes the export or
reexport of commodities and software
described in paragraph (b) to Cuba
subject to the conditions in paragraphs
(c) and (d) of this section. This section
does not authorize U.S.-owned or
-controlled entities in third countries to
engage in reexports of foreign produced
commodities to Cuba for which no
license would be issued by the Treasury
Department pursuant to 31 CFR
515.559. Cuba is the only eligible
destination under this License
Exception.
(b) Eligible Commodities and
Software. Commodities and software
eligible for export or reexport under this
section are:
(1) Computers designated EAR99 or
classified under Export Control
Classification Number (ECCN) 4A994.b
that do not exceed an adjusted peak
performance of 0.02 weighted teraflops;
(2) Disk drives and solid state storage
equipment classified under ECCN
5A992 or designated EAR99;
(3) Input/output control units (other
than industrial controllers designed for
chemical processing) designated EAR99;
(4) Graphics accelerators and graphics
coprocessors designated EAR99;
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45989
(5) Monitors classified under ECCN
5A992 or designated EAR99;
(6) Printers classified under ECCN
5A992 or designated EAR99;
(7) Modems classified under ECCNs
5A991.b.2, or 5A992 or designated
EAR99;
(8) Network access controllers and
communications channel controllers
classified under ECCN 5A991.b.4 or
designated EAR99;
(9) Keyboards, mice and similar
devices designated EAR99;
(10) Mobile phones, including cellular
and satellite telephones, personal digital
assistants, and subscriber information
module (SIM) cards and similar devices
classified under ECCNs 5A992 or 5A991
or designated EAR99;
(11) Memory devices classified under
ECCN 5A992 or designated EAR99;
(12) ‘‘Information security’’
equipment, ‘‘software’’ (except
‘‘encryption source code’’) and
peripherals classified under ECCNs
5A992 or 5D992 or designated EAR99;
(13) Digital cameras and memory
cards classified under ECCN 5A992 or
designated EAR99;
(14) Television and radio receivers
classified under ECCN 5A992 or
designated EAR99;
(15) Recording devices classified
under ECCN 5A992 or designated
EAR99;
(16) Batteries, chargers, carrying cases
and accessories for the equipment
described in this paragraph that are
designated EAR99; and
(17) ‘‘Software’’ (except ‘‘encryption
source code’’) classified under ECCNs
4D994, 5D991 or 5D992 or designated
EAR99 to be used for equipment
described in this paragraph (b).
(c) Donation Requirement. This
License Exception authorizes the export
or reexport of eligible commodities and
software that will be donated by the
exporter or reexporter to an eligible enduser or to eligible end-users free of
charge. The payment by an end-user of
any handling charges arising within the
importing country or any charges levied
by the government of the importing
country shall not be considered a charge
for purposes of this paragraph.
(d) Eligible End-users—(1)
Organizations. This License Exception
may be used to export or reexport
eligible commodities and software to
and for the use of independent nongovernmental organizations. The Cuban
Government or the Cuban Communist
Party and organizations they administer
or control are not eligible end-users.
(2) Individuals. This License
Exception may be used to export eligible
commodities and software to and for the
use of individuals other than the
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Federal Register / Vol. 74, No. 172 / Tuesday, September 8, 2009 / Rules and Regulations
following officials of the Cuban
Government and Cuban Communist
Party:
(i) Ineligible Cuban Government
Officials. Ministers and vice-ministers;
members of the Council of State;
members of the Council of Ministers;
members and employees of the National
Assembly of People’s Power; members
of any provincial assembly; local sector
chiefs of the Committees for the Defense
of the Revolution; Director Generals and
sub-Director Generals and higher of all
Cuban ministries and state agencies;
employees of the Ministry of the Interior
(MININT); employees of the Ministry of
Defense (MINFAR); secretaries and first
secretaries of the Confederation of Labor
of Cuba (CTC) and its component
unions; chief editors, editors and deputy
editors of Cuban state-run media
organizations and programs, including
newspapers, television, and radio; or
members and employees of the Supreme
Court (Tribuno Supremo Nacional).
(ii) Ineligible Cuban Communist Party
Officials. Members of the Politburo; the
Central Committee; Department Heads
of the Central Committee; employees of
the Central Committee; and the
secretaries and first secretaries of
provincial Party central committees.
PART 746—[AMENDED]
6. The authority citation for part 746
is revised to read as follows:
■
Authority: 50 U.S.C. app. 2401 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 287c; Sec.
1503, Pub. L. 108–11, 117 Stat. 559; 22 U.S.C.
6004; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210;
E.O. 12854, 58 FR 36587, 3 CFR, 1993 Comp.,
p. 614; E.O. 12918, 59 FR 28205, 3 CFR, 1994
Comp., p. 899; E.O. 13222, 3 CFR, 2001
Comp., p. 783; Presidential Determination
2003–23 of May 7, 2003, 68 FR 26459, May
16, 2003; Presidential Determination 2007–7
of December 7, 2006, 72 FR 1899 (January 16,
2007); Notice of August 13, 2009, 74 FR
41325 (August 14, 2009).
7. Section 746.2, is amended by
adding a paragraph (a)(1)(xiii) and by
revising paragraph (b)(2) to read as
follows:
■
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§ 746.2
Cuba.
(a) * * *
(1) * * *
(xiii) Commodities and software
authorized under License Exception
Consumer Communications Devices
(CCD) (see § 740.19 of the EAR).
*
*
*
*
*
(b) * * *
(2) Items may be authorized for export
or reexport to Cuba on a case-by-case
basis, provided the items are necessary
to provide efficient and adequate
telecommunications links between the
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14:52 Sep 04, 2009
Jkt 217001
United States and Cuba, including links
established through third countries, and
including the provision of satellite radio
or satellite television services to Cuba.
*
*
*
*
*
Dated: September 1, 2009.
Matthew S. Borman,
Acting Assistant Secretary for Export
Administration.
[FR Doc. E9–21402 Filed 9–3–09; 4:15 pm]
BILLING CODE 3510–33–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 744
[Docket No. 090126062–91139–01]
RIN 0694–AE54
Revisions to Certain End-User
Controls Under the Export
Administration Regulations;
Clarification Regarding License
Requirements for Transfers (incountry) to Persons Listed on the
Entity List
AGENCY: Bureau of Industry and
Security, Commerce.
ACTION: Final rule.
SUMMARY: The Bureau of Industry and
Security (BIS) is amending the Export
Administration Regulations (EAR) to
make revisions to three sections that are
used by the United States Government
as the basis for placing persons onto the
Entity List. These three sections
specified license requirements for
exports and reexports to persons listed
on the Entity List, however; the sections
were silent regarding whether or not the
scope of the licensing requirements
included transfers (in-country). This
rule adds transfers (in-country) to the
scope of the license requirements under
each of the three sections. As a result of
adding transfers (in-country) to these
three end-user controls, all of the enduse and end-user controls that are used
as a regulatory basis for placing persons
on the Entity List now specify that the
scope of the license requirements
includes exports, reexports, and
transfers (in-country).
The Entity List provides notice to the
public that certain exports, reexports,
and transfers (in-country) to parties
identified on the Entity List require a
license from the Bureau of Industry and
Security (BIS) and that availability of
License Exceptions in such transactions
is limited.
DATES: Effective Date: This rule is
effective September 8, 2009. Although
there is no formal comment period,
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public comments on this regulation are
welcome on a continuing basis.
ADDRESSES: You may submit comments,
identified by RIN 0694–AE54, by any of
the following methods:
E-mail: publiccomments@bis.doc.gov.
Include ‘‘RIN 0694–AE54’’ in the subject
line of the message.
Fax: (202) 482–3355. Please alert the
Regulatory Policy Division, by calling
(202) 482–2440, if you are faxing
comments.
Mail or Hand Delivery/Courier:
Timothy Mooney, U.S. Department of
Commerce, Bureau of Industry and
Security, Regulatory Policy Division,
14th St. & Pennsylvania Avenue, NW.,
Room 2705, Washington, DC 20230,
Attn: RIN 0694–AE54.
Send comments regarding the
collection of information associated
with this rule, including suggestions for
reducing the burden, to Jasmeet K.
Seehra, Office of Management and
Budget (OMB), by e-mail to
Jasmeet_K._Seehra@omb.eop.gov or by
fax to (202) 395–7285; and to the
Regulatory Policy Division, Bureau of
Industry and Security, Department of
Commerce, 14th St. & Pennsylvania
Avenue, NW., Room 2705, Washington,
DC 20230. Comments on this collection
of information should be submitted
separately from comments on the final
rule (i.e., RIN 0694–AE54)—all
comments on the latter should be
submitted by one of the three methods
outlined above.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Scott Sangine, End-User
Review Committee, Office of the
Assistant Secretary, Export
Administration, Bureau of Industry and
Security, Department of Commerce,
Phone: (202) 482–3343, Fax: (202) 482–
3911, E-mail: bscott@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Entity List provides notice to the
public that certain exports, reexports,
and transfers (in-country) to parties
identified on the Entity List require a
license from the Bureau of Industry and
Security (BIS) and that availability of
license exceptions in such transactions
is limited. Persons are placed on the
Entity List on the basis of certain
sections of part 744 (Control Policy:
End-User and End-Use Based) of the
EAR.
The End-User Review Committee
(ERC), composed of representatives of
the Departments of Commerce (Chair),
State, Defense, Energy and, where
appropriate, the Treasury, makes all
decisions regarding additions to,
removals from or changes to the Entity
E:\FR\FM\08SER1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 172 (Tuesday, September 8, 2009)]
[Rules and Regulations]
[Pages 45985-45990]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21402]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 736, 740 and 746
[Docket No. 090414648-9652-01]
RIN 0694-AE60
Cuba: Revisions to Gift Parcel and Baggage Restrictions, Creation
of License Exception for Donated Consumer Communications Devices and
Expansion of Licensing Policy Regarding Telecommunications
AGENCY: Bureau of Industry and Security, Department of Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule revises two existing License Exceptions concerning
exports and reexports of gift parcels to Cuba and of personal baggage
taken by individuals leaving the United States for travel to Cuba. It
also creates a new License Exception authorizing the export and
reexport to Cuba of certain donated consumer communications devices,
including certain computers and software, mobile phones, and satellite
receivers. Finally, this rule revises the scope of existing licensing
policy regarding certain telecommunications links including satellite
radio and satellite television services. These actions are among those
directed by the President on April 13, 2009 to enhance the free flow of
information to and from Cuba and to promote contacts between Americans
and their relatives who reside in Cuba as a means of encouraging
positive change in Cuba and are consistent with the ongoing support the
United States has provided to individuals and nongovernmental
organizations that support democracy-building efforts in Cuba. These
actions do not suspend or terminate the United States embargo of Cuba.
DATES: Effective Date: This rule is effective September 3, 2009.
ADDRESSES: Although there is no comment period for this final rule, BIS
welcomes any comments from the public on the amendments made by this
rule. Comments may be submitted by e-mail directly to BIS at
publiccomments@bis.doc.gov (please refer to RIN 0694-AE60 in the
subject line); or by delivery to Regulatory Policy Division, Office of
Exporter Services, Bureau of Industry and Security, Room H2705, U.S.
Department of Commerce, 14th Street and Pennsylvania Avenue, NW.,
Washington, DC 20230. Comments on the information collection contained
in this rule should also be sent to Jasmeet Seehra, Office of
Management and Budget (OMB), by e-mail to jseehra@omb.eop.gov, or by
fax to (202) 395-7285. Refer to RIN 0694-AE60 in all comments.
FOR FURTHER INFORMATION CONTACT: Anthony Christino, Foreign Policy
Division, Office of Nonproliferation and Treaty Compliance at (202)
482-4252.
SUPPLEMENTARY INFORMATION:
Background
The United States maintains a comprehensive embargo on trade with
Cuba. Pursuant to that embargo, all items that are subject to the
Export Administration Regulations (EAR) require a license for export or
reexport to Cuba unless authorized by a License Exception. BIS
administers export and reexport restrictions on Cuba consistent with
the goals of the embargo and with relevant legislation, including the
Cuban Liberty and Democratic Solidarity Act of 1996 (LIBERTAD).
Accordingly, BIS may issue specific or general authorizations for
limited types of transactions that support the goals of United States
policy while the embargo remains in effect.
On April 13, 2009, the President directed the Secretary of the
Treasury and the Secretary of Commerce, in consultation with the
Secretary of State, to take certain actions to enhance the free flow of
information to and from Cuba and to promote contacts between Americans
and their relatives who reside in Cuba as a means of encouraging
positive change in Cuba. In doing so, the President noted the United
States policy of promoting democracy and human rights in Cuba and
stated that ``measures that decrease dependency of the Cuban people on
the Castro regime and that promote contact between Cuban-Americans and
their relatives in Cuba are means to encourage positive change in
Cuba.'' The policy of promoting human rights and democracy in Cuba has
long been reflected in legislation. LIBERTAD's
[[Page 45986]]
purpose, in part, is to help the Cuban people regain their freedom and
prosperity. In addition, even before LIBERTAD, the Cuban Democracy Act
of 1992 reflected Congressional support for assistance to encourage
democracy in Cuba, stating that the U.S. Government may provide
assistance, through appropriate nongovernmental organizations, for the
support of individuals and organizations to promote nonviolent
democratic change in Cuba.
This rule implements the portions of the President's directive that
relate to the regulations of the Department of Commerce by changing the
existing License Exceptions ``Gift Parcels and Humanitarian Donations
(GFT)'' and ``Baggage (BAG),'' creating a new License Exception
``Consumer Communications Devices (CCD)'' and revising the scope of
licensing policy applicable to certain telecommunications links and
satellite radio and satellite television services.
The changes made by this rule are intended to update, consistent
with LIBERTAD and other relevant legislation, certain provisions of the
United States embargo of Cuba to: (i) Address the impact of economic
and technological changes that have taken place in recent years; and
(ii) ensure that the embargo continues to support the goals of
promoting democracy in Cuba and providing support for the Cuban people.
None of the changes made by this rule suspend or terminate the United
States embargo of Cuba.
Specific Changes Implemented by This Rule
Changes to License Exception Gift Parcels and Humanitarian Donations
(GFT)
License Exception Gift Parcels and Humanitarian Donations (GFT)
(Sec. 740.12 of the EAR) generally authorizes, among other things,
exports and reexports of gift parcels by an individual (donor)
addressed to an individual or to a religious, educational or charitable
organization (donee) for the use of the donee or the donee's immediate
family. Prior to the publication of this rule, items eligible for
export or reexport to Cuba in gift parcels were limited to food
(including vitamins); medicines; medical supplies and devices
(including hospital supplies and equipment for the handicapped);
receive-only radio equipment for reception of commercial/civil AM/FM
and short wave publicly available frequency bands, and batteries for
such equipment; and mobile phones covered by Export Control
Classification Numbers (ECCNs) 5A991 or 5A992, software for those
phones covered by ECCN 5D992, and batteries, memory cards, chargers and
other accessories for such mobile phones. Additionally, the License
Exception restricted recipients in Cuba to identified family members of
the donor (grandparents, parents, siblings, children and
grandchildren). Except for gift parcels of food, the License Exception
restricted a donor to sending only one gift parcel per month to the
same household in Cuba. The License Exception also limited the combined
total domestic retail value of all items other than food included in a
gift parcel to $400.
This rule revises License Exception GFT to add clothing, personal
hygiene items, seeds, veterinary medicines and supplies, fishing
equipment and supplies, soap-making equipment, and non-sensitive items
normally sent as gifts between individuals as items eligible for export
or reexport to Cuba in gift parcels. The rule largely retains the
restriction that precludes items listed in specific entries on the
Commerce Control List. However, the rule does allow inclusion of
consumer communications devices controlled by ECCNs 4A994, 4D994,
5A991, 5A992, 5D991, and 5D992. These devices, which are described in
more detail in the discussion of the new License Exception for consumer
communications devices below, are widely available consumer products,
such as personal computers, that facilitate communications.
This rule also revises License Exception GFT to remove requirements
that the donee be a member of the immediate family of the donor and
that only one gift parcel per month be sent to the same household in
Cuba. As revised, License Exception GFT authorizes a donor to send one
gift parcel per month to any individual (other than certain Cuban
Government or Cuban Communist Party officials) or to a charitable,
educational, or religious organization in Cuba that is not administered
or controlled by the Cuban government. For example, hospitals or
schools administered or controlled by the Cuban Government are not
eligible recipients under this License Exception. Further, this rule
revises the License Exception to increase the combined total domestic
retail value of all items included in a gift parcel from $400 to $800.
Changes to License Exception Baggage (BAG)
Prior to publication of this rule, and since 2004, the terms of
License Exception BAG imposed a 44-pound weight limit on the personal
baggage of most travelers from the United States to Cuba. This rule
removes that limit. This change implements the President's directive to
lift weight restrictions on accompanied baggage.
This rule does not remove or relax any other restrictions that
apply to License Exception BAG. The regulations continue to require
that individuals leaving the United States temporarily (i.e.,
traveling) must bring back items exported or reexported under this
License Exception unless they consume the items abroad or are otherwise
authorized to dispose of them under the EAR.
Donated Consumer Communications Devices, Computers and Software
Prior to publication of this rule, with the exception of certain
items authorized by License Exception GFT, the export or reexport to
Cuba of donated consumer communications devices required an individual
validated license.
This rule creates a narrowly tailored License Exception Consumer
Communications Devices (CCD) to authorize the export and reexport to
Cuba of donated consumer communications devices that are necessary to
provide efficient and adequate telecommunications services between the
United States and Cuba. In generally authorizing the export or reexport
of donated consumer communication devices to Cuba through a new License
Exception, this rule strengthens the United States' commitment to the
support of individuals and organizations to promote nonviolent
democratic change in Cuba, consistent with the goals of LIBERTAD and
the Cuban Democracy Act of 1992, and recognizes that recent changes in
communications technology have facilitated the widespread dissemination
of information and personal communications in ways that have become
increasingly essential for democratic movements across the world. This
rule is also consistent with the President's goal, as stated in his
April 13 memorandum, to promote contacts between Americans and their
relatives who reside in Cuba as a means of encouraging positive change
in Cuba.
New License Exception CCD authorizes the export or reexport of
specific commodities and software that are widely available for retail
purchase and that are commonly used to exchange information and
facilitate interpersonal communications. However, consistent with 22
U.S.C. 6005(a), this new License Exception does not authorize U.S.-
owned or controlled entities in third countries to
[[Page 45987]]
engage in reexports of foreign produced commodities to Cuba for which
no license would be issued by the Treasury Department pursuant to 31
CFR 515.559. This License Exception is valid only for exports or
reexports to Cuba. The commodities and software exported or reexported
under this License Exception must be donated, but the License Exception
provides no limits on value or frequency of shipments. Eligible end-
users for items exported or reexported pursuant to this License
Exception are individuals in Cuba other than designated Cuban
Government and Communist Party officials, and also independent non-
governmental organizations in Cuba. As is the case with exports or
reexports under License Exception GFT, exports or reexports under
License Exception CCD may not be made to organizations administered or
controlled by the Cuban Government.
The items authorized for export or reexport under the new License
Exception are commodities and software (except ``encryption source
code'') related to basic personal communications devices that are
widely available for retail purchase in the United States. These items
include: Mobile phones, including cellular and satellite telephones;
subscriber information module (SIM) cards; personal digital assistants;
laptop and desktop computers and peripherals such as monitors, graphics
accelerator cards, data storage devices and media such as disk drives,
flash drives, writable compact disks and floppy disks, keyboards, mice,
and printers including commodities possessing IEEE 802.15.1
``Bluetooth'' wireless personal area networking (WPAN) capability;
Internet connectivity devices including those possessing IEEE 802.11
``Wi-Fi'' and IEEE 802.16 ``WiMax'' wireless capabilities; satellite-
based television and radio receivers; digital music and video players
and recorders; personal two-way radios; digital cameras and memory
cards therefor; and batteries, chargers, carrying cases and similar
accessories for the equipment authorized by this rule. This rule also
authorizes the export and reexport of basic software for laptop and
desktop computers such as: Computer operating systems and software
(except ``encryption source code'') that enable activities such as word
processing, producing spread sheets, producing graphics presentations,
sending and receiving e-mail, Web browsing or developing relational
databases. When applicable, the rule describes these items as they are
classified on the Commerce Control List:
Computers classified under ECCN 4A994.b or designated
EAR99 that do not exceed an adjusted peak performance of 0.02 weighted
teraflops;
Disk drives and solid state storage equipment classified
as ECCN 5A992 or designated EAR99;
Input/output control units (other than industrial
controllers designed for chemical processing) designated EAR99;
Graphics accelerators and graphics coprocessors designated
EAR99;
Monitors classified under ECCN 5A992 or designated EAR99;
Printers classified under ECCN 5A992 or designated EAR99;
Modems classified under ECCNs 5A991.b.2 or 5A992 or
designated EAR99;
Network access controllers and communications channel
controllers classified under ECCN 5A991.b.4 or designated EAR99;
Keyboards, mice and similar devices designated EAR99;
Mobile phones, including cellular and satellite
telephones, personal digital assistants, and subscriber information
module (SIM) cards and similar devices classified under ECCNs 5A992 or
5A991 or designated EAR99;
Memory devices classified under ECCN 5A992 or designated
EAR99;
``Information security'' equipment, ``software'' (except
``encryption source code'') and peripherals classified under ECCNs
5A992 or 5D992 or designated EAR99;
Digital cameras and memory cards classified under ECCN
5A992 or designated EAR99;
Television and radio receivers classified under ECCN 5A992
or designated EAR99;
Recording devices classified under ECCN 5A992 or
designated EAR99;
Batteries, chargers, carrying cases, and accessories for
the equipment described above that are designated EAR99; and
``Software'' (except ``encryption source code'')
classified under ECCNs 4D994, 5D991 or 5D992 or designated EAR99 to be
used for equipment described above.
This change implements the President's directive to authorize,
consistent with national security concerns, the export or reexport to
Cuba of donated personal communications devices through a license
exception.
Revised Scope of Licensing Policy Regarding Telecommunications
Prior to publication of this rule, Sec. 746.2(b)(2) of the EAR
stated that export of ``Telecommunications commodities may be
authorized on a case-by-case basis, provided the commodities are part
of an FCC-approved project and are necessary to provide efficient and
adequate telecommunications between the United Sates and Cuba.''
This rule revises the text of Sec. 746.2(b)(2) of the EAR to
ensure that the licensing policy allows for case-by-case review of
exports or reexports of all items necessary to provide efficient and
adequate telecommunications links, including satellite radio and
satellite television, between the United States and Cuba consistent
with the President's April 13, 2009 directive. The scope of items
eligible for export or reexport now includes any item (commodity,
technology, or software) necessary to provide efficient and adequate
telecommunications links between the United States and Cuba, including
links established through third countries, and including links to
provide satellite radio or satellite television services to Cuba. In
making this change, BIS notes that the establishment of links through
third countries may be necessary to establish efficient and adequate
links between the United States and Cuba. These changes are consistent
with the goal of enhancing communications to promote democracy in Cuba.
Technical and Conforming Changes
Although individual gift parcels may be eligible for export
pursuant to License Exception GFT, as set forth in Sec. 740.12(a) of
the EAR, consolidated shipments of multiple gift parcels are not
eligible for export under this License Exception. BIS has issued a
number of licenses to parties authorizing them to export consolidated
shipments of gift parcels to Cuba. As part of this rule, BIS is
amending General Order No. 4, found in Supplement No. 1 to part 736 of
the EAR, to authorize such license holders to export consolidated
shipments of all gift parcels that are eligible for License Exception
GFT as of the effective date of this rule. This modification is
appropriate because some previously-issued licenses for consolidated
shipments limit the eligible commodities and software, eligible
recipients, or limits on frequency or dollar value based on the
restrictions of License Exception GFT in place at the time the
consolidation license was issued. The amended General Order does not,
however, increase the total value of exports permitted under, or extend
the expiration date of, any license. Amending the General Order to
modify existing licenses in such a manner will facilitate
implementation of the policy underlying this rule by
[[Page 45988]]
allowing consolidators to include all gift parcels consistent with the
provisions of License Exception GFT in their consolidated shipments
immediately rather than having to wait until they obtain a new license.
Consolidators will still need to apply for new licenses when their
existing licenses have been completely used or have expired.
Section 740.2(a)(6) of the EAR precludes use of any License
Exception to export or reexport to Cuba unless the License Exception is
listed in the License Exception paragraph pertaining to Cuba in part
746. This rule revises Sec. 746.2(a)(1) to list the new ``Consumer
Communications Devices'' License Exception that this rule creates.
Change to Prohibitions Applying to Gift Parcels Generally
Although not related to the President's April 13, 2009 directive,
this rule also makes ineligible for inclusion in gift parcels to any
destination items listed on the Commerce Control List with ``encryption
items'' (EI) as a reason for control. BIS is making this change because
of the sensitivity of such items. Items controlled for EI reasons
employ sophisticated encryption techniques and have not been designated
as ``mass market'' items by the United States Government. Such items
are not eligible for export or reexport under License Exception GFT
because they are not normally exchanged between individuals as gifts.
However, because of the potential use of items controlled for EI
reasons by persons abroad to harm U.S. national security, foreign
policy and law enforcement interests, BIS is adding EI as a reason for
control that explicitly precludes use of License Exception GFT to any
destination. The other reasons for control that trigger this preclusion
are national security, nuclear nonproliferation, chemical and
biological weapons and missile technology.
Rulemaking Requirements
1. This rule has been determined to be a significant rule under
Executive Order 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the Paperwork Reduction Act, unless that collection of
information displays a currently valid Office of Management and Budget
Control Number. This rule involves a collection of information that has
been approved by OMB under control number 0694-0088, which carries a
burden hour estimate of 58 minutes to prepare and submit form BIS-748P.
Miscellaneous and recordkeeping activities account for 12 minutes per
submission. BIS believes that this rule will make no material change to
the number of submissions or to the burden imposed by this collection.
3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military or foreign affairs function
of the United States (See 5 U.S.C. 553(a)(1)). Further, no other law
requires that a notice of proposed rulemaking and an opportunity for
public comment be given for this rule. Because a notice of proposed
rulemaking and an opportunity for public comment are not required to be
given for this rule under 5 U.S.C. 553, or by any other law, the
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable.
List of Subjects
15 CFR Part 736
Exports.
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 746
Exports, Reporting and recordkeeping requirements.
0
Accordingly, the Export Administration Regulations (15 CFR chapter VII,
subchapter C) are amended as follows:
PART 736--[AMENDED]
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1. The authority citation for part 736 is revised to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 2151 note; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp. p. 219; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3
CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, May 13, 2004;
Notice of August 13, 2009, 74 FR 41325 (August 14, 2009); Notice of
November 10, 2008, 73 FR 67097 (November 12, 2008).
0
2. General Order Number 4 of Supplement No. 1 to Part 736 is amended by
revising the introductory text and by revising paragraph (b) to read as
follows:
Supplement No. 1 to Part 736--General Orders
* * * * *
General Order No. 4 of June 13, 2008, as amended on September 3,
2009, amending existing licenses for exports of consolidated gift
parcels to Cuba due to changes in License Exception GFT.
* * * * *
(b) Notwithstanding any statements to the contrary on the
license itself, licenses authorizing the export to Cuba of
consolidated gift parcels described in paragraph (a) of this order
that are valid on September 3, 2009 authorize the export of
consolidated shipments to Cuba of gift parcels that comply with the
requirements of License Exception GFT found in Sec. 740.12(a) of
the EAR as of September 3, 2009.
* * * * *
PART 740--[AMENDED]
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3. The authority citation for part 740 is revised to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp.,
p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice
of August 13, 2009, 74 FR 41325 (August 14, 2009).
0
4. Section 740.12 is amended by revising paragraphs (a)(2)(i),
(a)(2)(iii), (a)(2)(iv) and (a)(2)(v) to read as follows:
Sec. 740.12 Gift parcels and humanitarian donations.
(a) * * *
(2) * * *
(i) Item limitations.
(A) Prohibited items.
(1) For Cuba no items listed on the Commerce Control List other
than items listed in Sec. 740.19(b) of the EAR may be included in a
gift parcel.
(2) For all destinations, no items controlled for chemical and
biological weapons (CB), missile technology (MT), national security
(NS), nuclear proliferation (NP) or encryption items (EI) reasons on
the Commerce Control List (Supplement no. 1 to part 774 of the EAR) may
be included in a gift parcel.
(3) Items prohibited for destinations in Country Group D:1 or E:2.
For destinations in Country Group D:1 or E:2, military wearing apparel
may not be included in a gift parcel regardless of whether all
distinctive U.S. military insignia, buttons, and other markings are
removed.
(4) Gold bullion, gold taels, and gold bars are prohibited as are
items intended for resale or reexport.
(B) Eligible items. For all destinations, eligible items are food
(including vitamins); medicines, medical supplies and devices
(including hospital supplies and equipment and equipment for the
handicapped); receive-only radio
[[Page 45989]]
equipment for reception of commercial/civil AM/FM and short wave
publicly available frequency bands, and batteries for such equipment;
clothing; personal hygiene items; seeds; veterinary medicines and
supplies; fishing equipment and supplies; soap-making equipment; as
well as all other items of a type normally sent as gifts between
individuals (including items listed in Sec. 740.19(b) of the EAR)
except for those items prohibited in paragraph (a)(2)(i)(A) of this
section. Items in gift parcels must be in quantities normally given as
gifts between individuals.
Example to paragraph (a)(2)(i)(B) of this section. A watch or piece
of jewelry is normally sent as a gift. However, multiple watches,
either in one package or in subsequent shipments, would not qualify for
such gift parcels because the quantity would exceed that normally given
between individuals. Similarly, a sewing machine or bicycle within the
value limit of this License Exception may be an appropriate gift.
However, subsequent shipments of the same item to the same donee would
not be a gift normally given between individuals.
* * * * *
(iii) Frequency.
(A) Except for gift parcels of food to Cuba, not more than one gift
parcel may be sent from the same donor to the same donee in any one
calendar month.
(B) There is no frequency limit on gift parcels of food to Cuba.
(C) Parties seeking authorization to exceed the frequency limit due
to compelling humanitarian concerns (e.g., for certain gifts of
medicine) should submit a license application in accordance with
Sec. Sec. 748.1, 748.4 and 748.6 of the EAR to BIS with complete
justification.
(iv) Value. The combined total domestic retail value of all
commodities and software in a single gift parcel may not exceed $800.
This limit does not apply to food sent in a gift parcel to Cuba.
(v) Ineligible recipients.
(A) No gift parcel may be sent to any of the following officials of
the Cuban Government: ministers and vice-ministers; members of the
Council of State; members of the Council of Ministers; members and
employees of the National Assembly of People's Power; members of any
provincial assembly; local sector chiefs of the Committees for the
Defense of the Revolution; Director Generals and sub-Director Generals
and higher of all Cuban ministries and state agencies; employees of the
Ministry of the Interior (MININT); employees of the Ministry of Defense
(MINFAR); secretaries and first secretaries of the Confederation of
Labor of Cuba (CTC) and its component unions; chief editors, editors
and deputy editors of Cuban state-run media organizations and programs,
including newspapers, television, and radio; or members and employees
of the Supreme Court (Tribuno Supremo Nacional).
(B) No gift parcel may be sent to any of the following officials or
members of the Cuban Communist Party: members of the Politburo; the
Central Committee; Department Heads of the Central Committee; employees
of the Central Committee; and the secretaries and first secretaries of
provincial Party central committees.
(C) No gift parcel may be sent to organizations administered or
controlled by the Cuban Government or the Cuban Communist Party.
* * * * *
Sec. 740.14 [Amended]
0
4. Section 740.14 is amended by:
0
a. removing ``(h)'' from the last sentence of paragraph (b)(4)
introductory text and adding ``(g)'' in its place:
0
b. removing paragraph (g); and
0
c. redesignating paragraph (h) as paragraph (g).
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5. A new Sec. 740.19 is added to read as follows:
Sec. 740.19 Consumer Communications Devices (CCD).
(a) Authorization. This License Exception authorizes the export or
reexport of commodities and software described in paragraph (b) to Cuba
subject to the conditions in paragraphs (c) and (d) of this section.
This section does not authorize U.S.-owned or -controlled entities in
third countries to engage in reexports of foreign produced commodities
to Cuba for which no license would be issued by the Treasury Department
pursuant to 31 CFR 515.559. Cuba is the only eligible destination under
this License Exception.
(b) Eligible Commodities and Software. Commodities and software
eligible for export or reexport under this section are:
(1) Computers designated EAR99 or classified under Export Control
Classification Number (ECCN) 4A994.b that do not exceed an adjusted
peak performance of 0.02 weighted teraflops;
(2) Disk drives and solid state storage equipment classified under
ECCN 5A992 or designated EAR99;
(3) Input/output control units (other than industrial controllers
designed for chemical processing) designated EAR99;
(4) Graphics accelerators and graphics coprocessors designated
EAR99;
(5) Monitors classified under ECCN 5A992 or designated EAR99;
(6) Printers classified under ECCN 5A992 or designated EAR99;
(7) Modems classified under ECCNs 5A991.b.2, or 5A992 or designated
EAR99;
(8) Network access controllers and communications channel
controllers classified under ECCN 5A991.b.4 or designated EAR99;
(9) Keyboards, mice and similar devices designated EAR99;
(10) Mobile phones, including cellular and satellite telephones,
personal digital assistants, and subscriber information module (SIM)
cards and similar devices classified under ECCNs 5A992 or 5A991 or
designated EAR99;
(11) Memory devices classified under ECCN 5A992 or designated
EAR99;
(12) ``Information security'' equipment, ``software'' (except
``encryption source code'') and peripherals classified under ECCNs
5A992 or 5D992 or designated EAR99;
(13) Digital cameras and memory cards classified under ECCN 5A992
or designated EAR99;
(14) Television and radio receivers classified under ECCN 5A992 or
designated EAR99;
(15) Recording devices classified under ECCN 5A992 or designated
EAR99;
(16) Batteries, chargers, carrying cases and accessories for the
equipment described in this paragraph that are designated EAR99; and
(17) ``Software'' (except ``encryption source code'') classified
under ECCNs 4D994, 5D991 or 5D992 or designated EAR99 to be used for
equipment described in this paragraph (b).
(c) Donation Requirement. This License Exception authorizes the
export or reexport of eligible commodities and software that will be
donated by the exporter or reexporter to an eligible end-user or to
eligible end-users free of charge. The payment by an end-user of any
handling charges arising within the importing country or any charges
levied by the government of the importing country shall not be
considered a charge for purposes of this paragraph.
(d) Eligible End-users--(1) Organizations. This License Exception
may be used to export or reexport eligible commodities and software to
and for the use of independent non-governmental organizations. The
Cuban Government or the Cuban Communist Party and organizations they
administer or control are not eligible end-users.
(2) Individuals. This License Exception may be used to export
eligible commodities and software to and for the use of individuals
other than the
[[Page 45990]]
following officials of the Cuban Government and Cuban Communist Party:
(i) Ineligible Cuban Government Officials. Ministers and vice-
ministers; members of the Council of State; members of the Council of
Ministers; members and employees of the National Assembly of People's
Power; members of any provincial assembly; local sector chiefs of the
Committees for the Defense of the Revolution; Director Generals and
sub-Director Generals and higher of all Cuban ministries and state
agencies; employees of the Ministry of the Interior (MININT); employees
of the Ministry of Defense (MINFAR); secretaries and first secretaries
of the Confederation of Labor of Cuba (CTC) and its component unions;
chief editors, editors and deputy editors of Cuban state-run media
organizations and programs, including newspapers, television, and
radio; or members and employees of the Supreme Court (Tribuno Supremo
Nacional).
(ii) Ineligible Cuban Communist Party Officials. Members of the
Politburo; the Central Committee; Department Heads of the Central
Committee; employees of the Central Committee; and the secretaries and
first secretaries of provincial Party central committees.
PART 746--[AMENDED]
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6. The authority citation for part 746 is revised to read as follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 287c; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; 22 U.S.C.
6004; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12854, 58 FR
36587, 3 CFR, 1993 Comp., p. 614; E.O. 12918, 59 FR 28205, 3 CFR,
1994 Comp., p. 899; E.O. 13222, 3 CFR, 2001 Comp., p. 783;
Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May
16, 2003; Presidential Determination 2007-7 of December 7, 2006, 72
FR 1899 (January 16, 2007); Notice of August 13, 2009, 74 FR 41325
(August 14, 2009).
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7. Section 746.2, is amended by adding a paragraph (a)(1)(xiii) and by
revising paragraph (b)(2) to read as follows:
Sec. 746.2 Cuba.
(a) * * *
(1) * * *
(xiii) Commodities and software authorized under License Exception
Consumer Communications Devices (CCD) (see Sec. 740.19 of the EAR).
* * * * *
(b) * * *
(2) Items may be authorized for export or reexport to Cuba on a
case-by-case basis, provided the items are necessary to provide
efficient and adequate telecommunications links between the United
States and Cuba, including links established through third countries,
and including the provision of satellite radio or satellite television
services to Cuba.
* * * * *
Dated: September 1, 2009.
Matthew S. Borman,
Acting Assistant Secretary for Export Administration.
[FR Doc. E9-21402 Filed 9-3-09; 4:15 pm]
BILLING CODE 3510-33-P
