Billing Code: 3510-33-P

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 736 and 740

[Docket No. 080519687-8707-01]

[RIN 0694-AE37]

Expansion of the Gift Parcel License Exception Regarding Cuba to Authorize Mobile Phones and Related Software and Equipment

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

SUMMARY: This rule revises a license exception in the Export Administration Regulations to allow the export of mobile phones as gifts sent by individuals to eligible recipients in Cuba. The Bureau of Industry and Security (BIS) is taking this action to provide support for individuals to support democracy-building efforts for Cuba by enabling the free exchange of information among Cuban citizens and with persons in other countries.

DATES: This rule is effective June 13, 2008.

ADDRESSES: Although this is a final rule and there is no formal comment period, comments may be submitted at any time by e-mail directly to BIS at publiccomments@bis.doc.gov (please refer to RIN 0694-AE37 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, N.W. Washington, D.C. 20230. Comments on the information collection that this rule concerns should also be sent to David Rostker, Office of Management and Budget Desk Officer; by e-mail to david_rostker@omb.eop.gov; or by fax to (202) 395-7285. Refer to RIN 0694-AE37 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

On May 21, 2008, the President, marking the Day of Solidarity with the Cuban People, announced that, in support of "Cubans who work to make their nation democratic and prosperous and just," the relevant U.S. Government agencies would make any regulatory changes necessary "to allow Americans to send mobile phones to family members in Cuba." The Cuban government announced earlier this year that it will now permit Cubans to acquire and use mobile phones. Recent global events have shown the value that mobile phones and communications devices can provide to those seeking to exercise the fundamental freedoms to which they are entitled under international law.

In support of this Presidential initiative, BIS is taking regulatory action consistent with all relevant laws, including the Cuban Liberty and Democratic Solidarity Act of 1996 (LIBERTAD), to allow exports of mobile phones in specified circumstances. This action is consistent with the ongoing support the United States has provided to individuals who support democracy-building efforts for Cuba by enabling the free exchange of information among persons in Cuba and with persons in other countries.

Consistent with the United States embargo of Cuba, the Export Administration Regulations (EAR) require a license for exports and reexports of all items subject to the EAR to Cuba, with only a limited number of license exceptions. One of those exceptions authorizes exports and reexports of certain items in gift parcels from donors to members of the donor's immediate family in Cuba. This rule amends the terms of License Exception Gift Parcels and Humanitarian Donations (GFT) to permit mobile phones (and related software, batteries, memory cards, chargers, and other accessories for mobile phones) to be included in such gift parcels. This rule also raises the value limit on such gift parcels from $200 to $400. This increase is intended to allow the donor to choose from a variety of currently available mobile phones without having to reduce the quantity of other items, such as medicines or medical supplies in the gift parcel. All other terms of that license exception, including eligible recipients and frequency of shipments are not changed by this rule.

Many gift parcels are shipped from the United States to Cuba through parties who consolidate multiple gift parcels. Under the EAR, a license is required for consolidations of gift parcels. This rule makes no changes to this requirement. Although individual gift parcels may be eligible for export pursuant to License Exception GFT, the consolidated shipments of multiple gift parcels are not eligible for such license exception. BIS has issued a number of licenses to parties authorizing them to export consolidated gift parcels to Cuba. As part of this rule, BIS is issuing a General Order authorizing holders of licenses to use those licenses to export gift parcels containing the mobile phones and related software, batteries, memory cards, chargers and related items that this rule makes eligible for the gift parcel license exception. This modification is necessary because some previously-issued licenses for consolidated shipments list the commodities that may be included in such consolidated gift parcels. This General Order does not, however, increase the total value of exports permitted under, or extend the expiration date of, any license. Issuance of this General Order to modify existing licenses will facilitate implementation of the new policy by allowing consolidators to begin including mobile phones right away rather than having to wait for new licenses to be issued. Consolidators will still need to apply for new licenses authorizing the full array of items to which the gift parcel exception applies as their existing licenses are fully used or expire.

Rulemaking Requirements

1. This is a significant rule for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor may be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation concerns a collection previously approved by OMB under control number 0694-0088, AMulti-Purpose Application," which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. BIS believes that this rule will have no effect on 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 by 5 U.S.C. 553, or by any other law, the analytical 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

For the reasons set forth in the preamble, the Export Administration Regulations (15 CFR 730 B 774) amend parts 730 and 774 as follows:

PART 736 - [AMENDED]

1. The authority citation for part 736 continues 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 15, 2007, 72 FR 46137 (August 16, 2007); Notice of November 8, 2007, 72 FR 63963 (November 13, 2007).

2. Add the following General Order to the end of Supplement No. 1 to part 736, to read as follows:

Supplement No. 1 to Part 736–General Orders

* * * * *

General Order No. 4 of June 13, 2008 adding mobile phones and related software, batteries, memory cards, chargers and other accessories therefor to existing licenses for exports of consolidated gift parcels to Cuba.

(a) Section 740.12(a) of the EAR authorizes, among other things, certain exports of gift parcels to Cuba pursuant to a license exception. However, consolidated shipments of multiple gift parcels to Cuba require a license even if all of the individual items within the consolidated gift parcel would be eligible for this license exception if shipped alone.

(b) In addition to the items stated on the license itself, licenses authorizing the export to Cuba of the consolidated gift parcels described in paragraph (a) of this order that are effective on June 13, 2008 also authorize the export of consolidated gift parcels containing the mobile phones and software, batteries, chargers, memory cards and other accessories therefor that may be exported in gift parcels to Cuba pursuant to § 740.12(a)(2)(i)(B)(1) of the EAR.

(c) This General Order does not change any of the other terms (including total value of items that may be exported or expiration date) of the licenses it affects.

PART 740 - [AMENDED]

3. The authority citation for part 740 continues 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 15, 2007, 72 FR 46137 (August 16, 2007).

4. Section 740.12 is amended by revising paragraphs (a)(2)(i)(A)(1), (a)(2)(i)(B)(1), and (a)(2)(iv) to read as follows:

§ 740.12 Gift parcels and humanitarian donations (GFT).

(a) * * *

(2) * * *

(i) * * *

(A) * * *

(1) For Cuba, no item listed on the Commerce Control List other than mobile phones covered by ECCNs 5A991 or 5A992 and software for those phones covered by 5D992, as specified in paragraph (a)(2)(i)(B)(1), of this section may be included in a gift parcel.

* * * * *

(B) * * *

(1) For Cuba, the only eligible commodities and software are food (including vitamins), medicines, medical supplies and devices (including hospital supplies and equipment and equipment for the handicapped), receive-only radio equipment for reception of commercial/civil AM/FM and short wave publicly available frequency bands, batteries for such equipment and mobile phones covered by ECCNs 5A991 or 5A992, software for those phones covered by ECCN 5D992 and batteries, memory cards, chargers and other accessories for such mobile phones.

* * * * *

(iv) Value. The combined total domestic retail value of all commodities and software may not exceed $400. This limit does not apply to food sent in a gift parcel to Cuba.

* * * * *

Dated

Matthew S. Borman

Acting Assistant Secretary for Export Administration