22 June 2004
Related notice by the Treasury Department's Office of Foreign Assets Control:
http://cryptome.org/fac061604.htm
Report to the President: Commission for Assistance to a Free Cuba, May 2004:
http://www.state.gov/p/wha/rt/cuba/commission/2004/c12237.htm
[Federal Register: June 22, 2004 (Volume 69, Number 119)]
[Rules and Regulations]
[Page 34565-34567]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jn04-8]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 740 and 746
[Docket No. 040610179-4179-01]
RIN 0694-AD17
Revision of Export and Reexport Restrictions on Cuba
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: This rule places new limits on gift parcels and personal
baggage and revises licensing policy regarding vessels going to Cuba.
These changes are being made to implement the President's May 6, 2004
direction with respect to certain recommendations in the May 2004
Report to the President from the Commission on Assistance to a Free
Cuba.
DATES: This rule is effective June 30, 2004.
FOR FURTHER INFORMATION CONTACT: Brian Nilsson, Foreign Policy
Division, Office of Nonproliferation and Treaty Compliance, Bureau of
Industry and Security, Department of Commerce, P.O. Box 273,
Washington, DC 20044; Telephone: (202) 482-5485, or e-mail:
bnilsson@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
On October 10, 2003, the President announced the creation of the
Commission for Assistance to a Free Cuba. The purpose of the Commission
was to identify ways to hasten Cuba's transition to a free and open
society and identify U.S. Government programs that could assist the
Cuban people during the transition. The Commission was tasked with
preparing a report to the President recommending a comprehensive plan
to achieve these aims. The report was delivered to the President on May
1, 2004.
Among other things, the Commission found that, although gift
parcels provide a critical humanitarian benefit to the Cuban people,
they directly benefit the Castro regime in two ways. Such parcels
decrease the burden on the Cuban regime to provide for the basic needs
of its people, enabling the regime to dedicate more of its limited
resources to strengthening its repressive apparatus. Moreover, through
delivery charges, the regime is able to generate additional sources of
much needed hard foreign currency. As a result, the Commission set
forth a number of recommendations for addressing these issues.
On May 6, 2004, the President directed the implementation of
certain of the Commission Report's recommendations. This rule is being
published to implement those recommendations as they related to the
Export Administration Regulations (EAR).
Amendments to License Exception GFT
This rule narrows the list of eligible commodities that can be
included in gift parcels to Cuba under License Exception GFT (Sec.
740.12 of the EAR). The eligible categories are now limited to: food
(including vitamins), medicine, medical supplies and equipment
(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, and
batteries for such equipment. This rule removes, seeds, clothing,
personal hygiene items, veterinary medicines and supplies, fishing
equipment and supplies, and soap-making equipment from the list of
commodities that may be sent to Cuba in gift parcels. This rule does
not limit the export of food to Cuba, except for eliminating the use of
License Exception GFT to send any item to certain Cuban Communist Party
or Government officials.
This rule limits the delivery of gift parcels to Cuba containing
items other than food to once per month per household, instead of once
per month per individual recipient. A household, for purposes of gift
parcels to Cuba, is defined as all individuals living in common at a
unique address. This rule also specifies that a gift parcel recipient
must be a grandparent, grandchild, parent, sibling, spouse, or child of
the donor. Finally, this rule makes License Exception GFT unavailable
to send gift parcels to certain Cuban government officials or Communist
Party members. This rule is not intended to limit the ability of non-
governmental organizations to provide humanitarian support or
assistance to pro-democracy or civil society groups. Therefore, it
[[Page 34566]]
does not change the ``humanitarian donations'' provisions of License
Exception GFT (Sec. 740.12(b) of the EAR) nor does it place any new
limits on the review policy for applications for licenses for exports
and reexports to provide support for the Cuban people as described in
Sec. 746.2(b)(4) of the EAR.
This rule also makes all commodities listed on the Commerce Control
List (CCL) ineligible for export or reexport to Cuba under the gift
parcel provisions of License Exception GFT. For all other destinations,
only commodities listed on the CCL with a reason for control based on
one or more multilateral export control regimes (i.e., the Wassenaar
Arrangement (reason for control: National Security--NS); the Nuclear
Suppliers' Group (reason for control: Nuclear Nonproliferation--NP);
the Australia Group (reasons for control: Chemical and Biological
Weapons--CB); and the Missile Technology Control Regime (reason for
control: Missile Technology--MT)) are ineligible for inclusion in a
gift parcel sent under this license exception. This rule does not
change the requirement that commodities sent in gift parcels be of a
type and in quantities normally given as gifts between individuals and
that non-food items be limited in value to $200 per gift parcel.
Amendment to License Exception BAG
This rule also limits the amount of baggage taken by individuals
leaving the United States for travel to Cuba pursuant to License
Exception BAG (Sec. 740.14 of the EAR) to 44 pounds per traveler,
except if authorized by the Office of Foreign Assets Control of the
Department of the Treasury to engage in travel-related transactions
pursuant to a general or specific license in one of the following
categories: 31 CFR 515.562 (official business of the U.S. government,
foreign governments, and certain intergovernmental organizations), 31
CFR 515.563 (journalistic activity), 31 CFR 515.566 (religious
activities), 31 CFR 515.574 (support for the Cuban people), 31 CFR
515.575 (humanitarian projects), or 31 CFR 515.545 (exportation,
importation, or transmission of informational material).
Note: Other travelers seeking to take more than 44 lbs of
baggage would require a license from BIS pursuant to Sec. 746.2 of
the EAR.
Amendments to Sec. 746.2 of the EAR
This rule also eliminates the illustrative Composite Theoretical
Performance (CTP) level from the licensing policy criteria in Sec.
746.2(b) of the EAR regarding applications for licenses to export or
reexport computers to human rights groups, or to individuals and non-
governmental organizations that promote independent activity intended
to strengthen civil society in Cuba.
Prior to this rule, all aircraft or vessels (boats) traveling from
the United States to Cuba required a BIS license and were subject to a
general policy of denial under Sec. 746.2(b) of the EAR. This rule
states a new licensing policy for applications for exports of aircraft
or vessels on temporary sojourn to Cuba. Such applications will be
considered on a case-by-case basis if the purpose of the export is to
deliver humanitarian goods or services, or if the approval of such
application is consistent with the foreign policy interests of the
United States.
Statutory Authority
Although the Export Administration Act of 1979 (EAA), as amended,
expired on August 20, 2001, Executive Order 13222 of August 17, 2001 (3
CFR, 2001 Comp., p. 783 (2002)) as extended by the Notice of August 7,
2003 (3 CFR, 2003 Comp., p. 328 (2004)), continues the EAR in effect
under the International Emergency Economic Powers Act (IEEPA).
Rulemaking Requirements
1. This rule has been determined to be not significant for the
purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to nor 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 involves
collections previously approved by the OMB under control numbers 0694-
0088, ``Multi-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. Burden hours associated with the Paperwork Reduction Act
and Office of Management and Budget control number 0694-0088 are not
impacted by this regulation. Send comments regarding these burden
estimates or any other aspect of these collections of information,
including suggestions for reducing the burden, to David Rostker, OMB
Desk Officer, by e-mail at david_rostker@omb.eop.gov or by fax to
(202) 395-7285; and to the Regulatory Policy Division, Bureau of
Industry and Security, Department of Commerce, P.O. Box 273,
Washington, DC 20044.
3. This rule does not contain policies with Federalism implications
as this 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 740
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 746
Embargoes, Exports, Foreign trade, Reporting and recordkeeping
requirements.
0
Accordingly, parts 740 and 746 of the Export Administration Regulations
(15 CFR parts 730-799) are amended as follows:
PART 740--[AMENDED]
0
1. 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.;
Sec. 901-911, Pub. L. 106-387; 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, 2003, 68 FR 47833, 3 CFR, 2003 Comp., p. 328.
0
2. In Sec. 740.12 revise paragraph (a)(2)(i), remove the example to
paragraph (a), revise paragraph (a)(2)(iii), and add a new paragraph
(a)(2)(v) to read as follows:
Sec. 740.12 Gift parcels and humanitarian donations (GFT).
(a) * * *
(2) * * *
(i) Commodity limitations.
(A) Prohibited commodities.
[[Page 34567]]
(1) For Cuba, no commodity listed on the Commerce Control List may
be included in a gift parcel.
(2) For all other destinations, no commodity controlled for
chemical and biological weapons (CB), missile technology (MT), national
security (NS), or nuclear proliferation (NP) reasons on the Commerce
Control List (Supplement no. 1 to part 774 of the EAR) may be included
in a gift parcel.
(B) Eligible commodities. The commodity must be of a type and in
quantities normally given as gifts between individuals. In addition,
eligible commodities are as follows:
(1) For Cuba, the only eligible commodities 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, and batteries for such equipment.
(2) For all other destinations, eligible commodities include all
items described in paragraph (a)(2)(i)(B)(1) of this section, clothing,
personal hygiene items, seeds, veterinary medicines and supplies,
fishing equipment and supplies, and soap-making equipment; as well as
all other items normally sent as gifts. Gold bullion, gold taels, and
gold bars are prohibited as are items intended for resale or reexport.
Example to paragraphs (a)(2)(i)(B)(1) and (2) 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 exceeds that
normally given between individuals. Similarly, a sewing machine or
bicycle, within the dollar limits 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.
(3) For purposes of paragraph (a)(2)(i)(B)(2) of this section,
clothing is appropriate, except that export of military wearing apparel
to Country Groups D:1 or E:2 under this License Exception is
specifically prohibited, regardless of whether all distinctive U.S.
military insignia, buttons, and other markings are removed.
(ii) * * *
(iii) Frequency. (A) Cuba. Except for gift parcels of food, not
more than one gift parcel may be sent from the same donor to the same
household in any one calendar month. For purposes of paragraph (a) of
this section, the term household is defined as all individuals living
in common at a unique address. There is no frequency limit on gift
parcels of food to Cuba.
(B) For all destinations other than Cuba, not more than one gift
parcel may be sent from the same donor to the same donee in any one
calendar month.
(C) Parties seeking authorization to exceed these frequency limits
due to compelling humanitarian concerns (e.g., for certain gifts of
medicine) should submit a license application (BIS-748P) with complete
justification.
(iv) * * *
(v) Additional restrictions on Cuba. (A) Limits on gift parcel
recipients. A gift parcel may be sent only to a grandparent,
grandchild, parent, sibling, spouse, or child of the donor. (B)
Government and Communist Party officials to whom gift parcels may not
be sent under this license exception.
(1) 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).
(2) 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.
* * * * *
0
3. In Sec. 740.14, add a new paragraph (g) to read as follows:
Sec. 740.14 Baggage (BAG).
* * * * *
(g) Special provision: Cuba. Baggage taken by individuals leaving
the United States for travel to Cuba pursuant to this License Exception
is limited to 44 pounds per traveler, except if authorized by the
Office of Foreign Assets Control of the Department of the Treasury to
engage in travel-related transactions pursuant to a general or specific
license in one of the following categories: 31 CFR 515.562 (official
business of the U.S. government, foreign governments, and certain
intergovernmental organizations), 31 CFR 515.563 (journalistic
activity), 31 CFR 515.566 (religious activities), 31 CFR 515.574
(support for the Cuban people), 31 CFR 515.575 (humanitarian projects),
or 31 CFR 515.545 (exportation, importation, or transmission of
informational material).
Note: Other travelers seeking to take more than 44 lbs of
baggage would require a license from BIS pursuant to Sec. 746.2 of
the EAR.
PART 746--[AMENDED]
0
4. 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; 22 U.S.C. 6004; Sec. 901-911, Pub. L. 106-387; Sec.
221, Pub. L. 107-56; 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; Notice of August 7, 2003, 68 FR 47833, 3
CFR, 2003 Comp., p. 328.
0
5. In Sec. 746.2 revise the second sentence of paragraph (b)(4)(i) and
add a new paragraph (b)(5) to read as follows:
Sec. 746.2 Cuba.
* * * * *
(b) * * *
(4) * * *
(i) * * * Examples of such commodities include fax machines,
copiers, computers, business/office, software document scanning
equipment, printers, typewriters, and other office or office
communications equipment. * * *
* * * * *
(5) Applications for exports of aircraft or vessels on temporary
sojourn to Cuba either to deliver humanitarian goods or services, or
consistent with the foreign policy interests of the United States, will
be considered on a case-by-case basis.
* * * * *
Dated: June 18, 2004.
Peter Lichtenbaum,
Assistant Secretary for Export Administration.
[FR Doc. 04-14227 Filed 6-21-04; 8:45 am]
BILLING CODE 3510-33-P