[Federal Register: September 8, 2009 (Volume 74, Number 172)]
[Rules and Regulations]
[Page 45985-45990]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se09-7]
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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.
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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.
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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]
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4. Section 740.14 is amended by:
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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
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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]
0
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