2015-21695. Revisions to License Exception Availability for Consumer Communications Devices and Licensing Policy for Civil Telecommunications-Related Items Such as Infrastructure Regarding Sudan; Correction

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule; correction.

SUMMARY:

The Bureau of Industry and Security publishes this rule to correct an error in License Exception Temporary imports, exports, reexports, and transfers (in-country) (TMP) to make certain consumer communications devices and related software eligible for temporary export and reexport to Sudan as “tools of trade.” This error was introduced in a final rule published in February 2015 that amended the Export Administration Regulations to authorize License Exception Consumer Communications Devices (CCD) for use in Sudan and made changes to License Exception TMP. BIS is publishing this rule to facilitate use of employer-owned devices such as cell phones, Wi-Fi-equipped computers and tablets by persons engaged in humanitarian efforts in Sudan.

DATES:

The rule is effective September 2, 2015.

FOR FURTHER INFORMATION CONTACT:

Theodore Curtin, telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

Background

In general, items listed on the Commerce Control List with anti-terrorism stated as a reason for control require a license for export or reexport, even temporarily, to Sudan. Some limited exceptions to this requirement exist. One such exception, License Exception Baggage (BAG), allows travelers to Sudan to take with them for their personal use or use by family members their personally-owned consumer communications devices such as cell phones, Wi-Fi- enabled personal computers, global positioning systems and related software. Another exception, License Exception Consumer Communications Devices (CCD), allows the export and reexport of such devices and related software for use by non-governmental organizations or individuals in Sudan. Sudan was added as an eligible destination under CCD in a final rule published on February 18, 2015 (the February 2015 rule) (see “License Exception Availability for Consumer Communications Devices and Licensing Policy for Civil Telecommunications-Related Items Such as Infrastructure Regarding Sudan,” (80 FR 8520)). For several years prior to the February 2015 rule, a third exception, Temporary imports, exports, reexports, and transfers (in-country) (TMP), allowed non-governmental organizations engaged in humanitarian work in Sudan and their individual staff members, employees, or contractors to export or reexport temporarily to Sudan employer-owned consumer communications devices and related software for use as “tools of trade.” See 70 FR 8251 (Feb. 18, 2005) (authorizing exports of such items) and 73 FR 10668 (Feb. 28, 2008) (authorizing reexports of such items).

The February 2015 amendment to the Export Administration Regulations (EAR) made consumer communications devices and related software available under License Exception CCD for export and reexport to non-governmental organizations and individuals in Sudan generally (with no requirement that the export or reexport be temporary). That rule was intended to foster communications to, from, and among the people of Sudan. Because the commodities and software would be available under License Exception CCD to all individuals in Sudan (including persons traveling to Sudan on a temporary basis), the February 2015 rule removed as unnecessary paragraph (a)(2) of License Exception TMP, which had authorized the temporary export and reexport of these items by non-governmental organizations engaged in humanitarian work in Sudan and their individual staff members, employees, or contractors. In addition, in an earlier rule amending License Exception CCD, which up to that time had authorized only donations made to individuals and non-governmental organizations Cuba, the phrase “either sold or donated” was added to the paragraph describing the authorization of the export and reexport of consumer communications devices and related software under the license exception. See 80 FR 2286 (Jan. 16, 2015).

Although the intent was to state that the devices or software no longer had to be donated, the addition of the “either sold or donated” language to License Exception CCD in January 2015, in combination with the removal of paragraph (a)(2) of license exception TMP by the February 2015 rule on Sudan, created problems for non-governmental organizations that send personnel to Sudan for humanitarian activities. The employer-owned devices that such personnel use in Sudan are neither sold nor donated in connection with the staff member's, employee's or contractor's travel to Sudan. As an unintended consequence of the interplay of the changes made pursuant to the two recent rules, such travelers who seek to engage in the humanitarian activities for which temporary exports and reexports have been authorized by License Exception TMP since 2005 need licenses to take to Sudan temporarily their employer-owned communication devices and software even though the same items could be exported or reexported to Sudan under a license exception if personally owned by the travelers or if being sold or donated to a non-governmental organization or to any individual in Sudan.

This final rule amends the EAR to correct License Exception TMP to clarify BIS's intent to authorize temporary export and reexport of employer-owned consumer communications devices and related software as tools of trade to Sudan under the license exception. The amended provision refers to the list of consumer communications devices and software that is contained in License Exception CCD (Section 740.19(b)) and notes that all other requirements and limitations found in License Exception TMP apply to exports and reexports of such items.

Rulemaking Requirements

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any regulatory burden on the public and is consistent with the goals of Executive Order 13563. This rule has been determined to be not significant for purposes of 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 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 rule involves a collection of information approved under OMB control number 0694-0088, Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application, which carries an annual estimated burden of 31,833 hours. BIS believes that this rule will have no material impact on that burden. To the extent that it has any impact at all, the impact would be to reduce the burden because this rule makes some transactions that would otherwise require a license eligible for a license exception.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. BIS finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice of proposed rulemaking and the opportunity for public comment because it is impracticable and contrary to the public interest. This rule corrects an error in License Exception TMP to make certain consumer communications devices and related software eligible for temporary export and reexport to Sudan as “tools of trade.” Due to a drafting error in the February 2015 rule, license exception availability under the EAR was eliminated for employer-owned consumer communications devices and related software being exported or reexported temporarily to Sudan for use by staff members, employees, and contractors of non-governmental organizations engaged in humanitarian activities. Those same devices may be exported or reexported temporarily to Sudan under a license exception if they are owned personally by the traveler. They may also be exported or reexported permanently to Sudan under a license exception if they are to be sold or donated to a non-governmental organization or individual in Sudan. This rule is necessary in order to ensure that persons traveling to Sudan benefit from clarity on the point addressed by this rule, as it would enable them to bring certain items with them for use in their humanitarian activities in the country without having to apply for a license. Maintaining a license requirement for this limited category of exports and reexports is contrary to the public interest as it would hamper the activities of non-governmental organizations engaged in humanitarian work without providing any corresponding benefit to the foreign policy goals that export controls are intended to meet. It would be impracticable to delay this rule to allow for notice and comment, as there is an urgent need for timely clarification consistent with the purpose of the February 2015 rule, which sought to expand the scope of exports and reexports to Sudan that may occur without the need to obtain a license.

BIS also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness. This rule does not impose any new regulatory burden on any person. It merely makes clear that certain employer-owned consumer communications devices and software may be exported or reexported temporarily to Sudan as tools of trade by persons traveling to Sudan. No person would be required to change any of its existing practices as a result of this rule. However, persons traveling to Sudan would benefit from clarity on the point addressed by this rule, as it would enable them to bring certain items with them for use in their humanitarian activities in the country without having to apply for a license. Because this rule imposes no new burden while providing a benefit to some persons, delaying implementation would be contrary to the public interest.

List of Subjects in 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 parts 730-774) are amended as follows:

PART 740—[AMENDED]

1. The authority citation for 15 CFR 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 7, 2015, 80 FR 48233 (August 11, 2015).

2. In § 740.9, paragraph (a)(2) is added to read as follows:

§ 740.9

Temporary imports, exports, reexports, and transfers (in-country) (TMP).

* * * * *

(a) * * *

(2) Sudan. Notwithstanding the exclusion of destinations in Country Group E:1 in paragraphs (a)(1) and (3) of this section, items listed in § 740.19(b) of the EAR may be exported or reexported as tools of trade to Sudan. All other requirements and limitations of this paragraph (a) apply to such exports and reexports.

* * * * *

Dated: August 25, 2015.

Kevin J. Wolf,

Deputy Assistant Secretary for Export Administration.