[Federal Register Volume 68, Number 164 (Monday, August 25, 2003)]
[Notices]
[Pages 51060-51062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21677]


-----------------------------------------------------------------------

DEPARTMENT OF STATE

[Public Notice 4457]


Determination: Imposing Conditions and Restrictions on the Cuban 
Interests Section and Its Personnel with Respect to Acquisition and 
Disposition of Motor Vehicles in the United States

Summary

    The United States Interests Section of the Embassy of Switzerland 
in Havana, Cuba (``the U.S. Interests Section'') is the mission through 
which the U.S. communicates with the Government and people of Cuba. The 
Cuban Government's counterpart mission in the United States is the 
Cuban Interests Section of the Embassy of Switzerland in Washington. 
For some time, the Cuban Government has imposed a series of 
impediments, obstructions, denials of service, and unjustifiable costs 
upon the functioning of the U.S. Interests Section and living 
conditions of the Interests Section's employees and dependents. The 
Foreign Missions Act of 1982 as amended (22 U.S. Code 4301, et. seq.) 
provides the domestic legal authority for responding to these 
restrictions by imposing reciprocal measures such as those set out in 
this Determination.
    Among the many areas in which Cuban authorities impose undue 
restrictions on the U.S. Interests Section and its personnel is that of 
motor vehicles. Specifically, Cuban authorities impose a variety of 
restrictions and impediments which have the net effect of making it 
inordinately difficult, if not altogether impossible to either purchase 
a new vehicle or resell a used one in Cuba.
    To enable the U.S. Government to respond effectively to the 
situation described above, as well as to create for the Government of 
Cuba an incentive to improve the conditions it imposes upon the U.S. 
Interests Section, the Department of State is hereby invoking its 
authorities under the Foreign Missions Act to impose a series of 
reciprocal terms and conditions on the Cuban Interests Section in 
Washington, DC with respect to motor vehicles. The primary effect of 
these terms and conditions, which are spelled out in the text below, is 
to restrict the ability of the Cuban Interests Section and its 
personnel to purchase, lease, or sell any vehicle in the United States.
    It should be noted that, upon publication of this Determination in 
the Federal Register, or upon actual notice to any party, whichever is 
the earlier, it will be unlawful for any person or business subject to 
the jurisdiction of the United States to act in a manner contrary to 
the terms and conditions specified below.

Persons Affected by This Action

    This Determination applies primarily to the Cuban Interests Section 
of the Embassy of Switzerland in Washington, DC, its personnel, and the 
family members thereof. However, it also applies to any person subject 
to the jurisdiction of the United States, whether natural person, 
business, or other entity of any sort, that intends to sell or lease a 
motor vehicle to, or purchase a motor vehicle from the Cuban Interests 
Section or its personnel.

Legal Authority

    The terms and conditions promulgated by this Determination are done 
so pursuant to the Foreign Missions Act of 1982, as amended, 22 U.S.C. 
4301 et seq. (``the Act''). The Act at section 4304 authorizes the 
Secretary to provide ``benefits'' to foreign missions in the United 
States and to impose certain terms and conditions upon the provision of 
such benefits, if such action is reasonably necessary to achieve a 
statutory purpose identified in the act, including the interests of 
diplomatic reciprocity. The term ``benefits'' is defined in the Act at 
section 4302 to include any of a number of specifically enumerated 
goods and services, as well as ``any other benefits as the Secretary 
may designate.'' 22 U.S.C. 4302(a)(1).
    Pursuant to Department of State Delegation of Authority No. 214, 
section 14 (September 20, 1994), the authorities that the Act vests in 
the Secretary of State were delegated by the Secretary to the Assistant 
Secretary of State for Diplomatic Security, who also functions as 
Director of the Office of Foreign Missions.

Designation of Benefits, Findings, and Specific Determinations

    Pursuant to the authority vested in me by and through the above-
cited provisions of law and Designation of Authority, I hereby find and 
determine as follows:
    (1) Definitions: Pursuant to the authorities contained in the Act, 
including the discretion contained at 22 U.S.C. 4302(b) to determine 
the meaning and applicability of the terms used in section 4301(a), I 
hereby determine that, for the purposes of this Determination, the 
following definitions shall apply:
    (a) ``Cuban Interests Section'' shall mean the Cuban Interests 
Section of the Embassy of Switzerland in Washington, DC, including its 
personnel, and any dependent of such personnel, forming part of the 
household thereof;
    (b) ``motor vehicle'' shall mean any motorized device intended for 
the purpose of transporting individuals on public streets and highways;
    (c) U.S. person shall mean any natural or corporate person or 
entity physically present within the United States, regardless of 
nationality or immigration status, except for accredited members of 
foreign diplomatic or consular missions in the United States, and their 
accredited dependents forming parts of their households, provided that 
the foregoing exclusion shall not apply to any employee of such a 
foreign mission, or any dependent thereof, who is a U.S. citizen, 
permanent resident alien, or a person regarded as permanently 
resident'' in the U.S., pursuant to the policies of the Department of 
State in implementing the Vienna Convention on Diplomatic Relations or 
the Vienna Convention on Consular Relations;
    (d) ``acquisition'' shall mean the transfer by any U.S. person 
whatsoever to the Cuban Interests Section of any interest in a motor 
vehicle, by any method or means including, but not limited, to 
purchase, lease, loan, gift, hypothecation, or devise; and
    (e) ``disposition'' shall mean the transfer by the Cuban Interests 
Section to any U.S. person whatsoever of any interest in a motor 
vehicle by any method or means including, but not limited to, sale, 
lease, loan, gift, hypothecation, or devise, including sale for scrap 
or salvage.
    (2) Designation of Benefits: Pursuant to 22 U.S.C. 4302(a)(1), 
which authorizes the Secretary, or his

[[Page 51061]]

delegatee, to designate as a ``benefit'' under the Act any additional 
good or service beyond those enumerated in section 4302(a)(1)(A)-(G), I 
hereby designate as a benefit the privilege of disposing of a motor 
vehicle to a U.S. person within the United States. This designation of 
a benefit shall, as of this date, apply to all diplomatic and consular 
missions accredited to the United States. It is noted that the 
acquisition of a motor vehicle is already encompassed within the 
statutory designation of a ``benefit'', pursuant to the existing 
definitions in 22 U.S.C. 4301(a)(1)(C), ``transportation''.
    (3) Based upon the facts and circumstances set forth in the Summary 
section above, I hereby find that with respect to the acquisition and 
disposition of motor vehicles, the Cuban Interests Section in 
Washington, its personnel, and their dependents enjoy significantly 
more favorable treatment than do the U.S. Interests Section in Havana, 
its personnel, and their dependents.
    (4) I further find that, in the area of motor vehicles, the Cuban 
Government's treatment of the U.S. Interests Section in Havana, its 
personnel, and their dependents imposes additional undue and 
unjustifiable costs on the operation of the United States Interests 
Section in Havana; that it creates a source of dispute in relations 
between the United States and Cuba; and that the persistence of such an 
imbalance in the treatment of United States and Cuban diplomatic 
personnel in each other's state is contrary to the interests of the 
United States.
    (5) Determination To Deny Benefits: In light of the findings 
discussed in Sections 3 and 4 above and pursuant to the statutory 
requirements and purposes of the Act, I hereby determine that 
imposition of the following terms and conditions on the acquisition and 
disposition of motor vehicles by or on behalf of the Cuban Interests 
Section in Washington is necessary on the basis of reciprocity:
    (a) Acquisitions of Vehicles: The Cuban Interests Section shall be 
denied the benefit of acquiring any motor vehicle in the United States, 
subject only to the following exceptions:
    (i) The rental of a vehicle from an established auto rental 
business, for a period not to exceed thirty (30) days;
    (ii) The direct, duty-free importation of a vehicle from a vendor 
located outside the United States, utilizing the services of a 
manufacturer's authorized dealer, provided that such vehicle is less 
than four years old from date of manufacture and complies fully with 
all applicable Federal safety requirements. In order to be eligible for 
this exclusion, the acquisition may not be made from any pre-existing 
dealer stock, and the ownership and importation documentation must 
clearly indicate the Cuban Interests Section as the consignee/
transferee of said vehicle;
    (iii) The duty-free importation into the United States from abroad 
by the Cuban Interests Section of any motor vehicle, the pre-existing 
ownership of which was already in the hands of the Government of Cuba, 
any employee thereof, or any dependent of such employee forming part of 
the employee's household, provided that such vehicle is less than four 
years old from date of manufacture and complies fully with all 
applicable Federal safety requirements;
    (iv) The continued ownership by the Cuban Interests Section of any 
vehicles that are owned as of the effective date hereof;
    (v) The continued retention and use, until and not beyond the 
expiration of the lease term, of any motor vehicle leased by the Cuban 
Interests Section as of the effective date hereof;
    (vi) The purchase by the Cuban Interests Section of a motor vehicle 
from any accredited diplomatic or consular mission in the United 
States, or any accredited member of such a mission, or accredited 
dependent thereof, enjoying privileges and immunities in the United 
States pursuant to international law, provided that such transaction 
shall constitute a bona fide arms-length purchase not entered into for 
purposes of collusion or evasion of the general prohibition on vehicle 
acquisitions being imposed by this Determination. For purposes of 
ascertaining the bona fide nature of any such acquisition, it shall be 
presumed that the acquisition of any vehicle which was registered in 
the name of a foreign mission or accredited member or dependent thereof 
for longer than 120 days satisfies the requirements of a bona fide 
acquisition. The present exclusion, however, shall not apply to the 
purchase of vehicles currently leased by the Cuban Interests Section, 
its members, or their dependents.
    (vii) The acquisition of any motor vehicle by and through the 
Department of State's Office of Foreign Missions.
    (b) Dispositions of Vehicles: The Cuban Interests Section shall 
likewise be denied the benefit of disposing of any motor vehicle in the 
United States, subject only to the following exceptions:
    (i) The return of any rental vehicle to the auto rental entity 
concerned;
    (ii) The return of any prior leased vehicle to the dealership 
concerned;
    (iii) The sale of any vehicle to any diplomatic or consular mission 
to the United States, any accredited member thereof, or any accredited 
dependent forming part of the household of such member, provided that 
such member or dependent is not a ``U.S. person'' as defined in Section 
1(C), above; and
    (iv) The sale of any vehicle by and through the Department of 
State's Office of Foreign Missions.
    (c) No Restriction on Exports or Imports of Vehicles: Nothing in 
this Determination shall in any way operate to limit or restrict the 
right of the Cuban Interests Section, its personnel, and dependents 
thereof to import or export motor vehicles for mission or personal use 
from or to sources outside the United States.
    (6) Waiver of Recourse: Pursuant to the Act at section 4304(d) and 
the Delegation of Authority thereunder, I hereby find and determine 
that, for the purposes of implementing the present restrictions on 
motor vehicle benefits, it is reasonably necessary in order to achieve 
the purposes set forth in the Act at Sec.  4304, to require that the 
acceptance and use of all motor vehicle license tags issued by the 
Office of Foreign Missions to the Cuban Interests Section be 
conditioned, consistent with U.S. international obligations, as 
follows:
    (a) The Cuban Interests Section, shall waive any recourse that the 
Interests Section, its agents or assigns may have in U.S. courts or 
administrative tribunals against any person or party with respect to 
any past, present, or future motor-vehicle-related transaction, whether 
such transaction is contracted for or has actually been concluded.
    (b) Pursuant to the Act at 22 U.S.C. 4304(d) of the Act, I hereby 
designate the Deputy Director of the Office of Foreign Missions to be 
the agent for the Cuban Interests Section for purposes of effectuating 
such a waiver of recourse.
    (c) The requirement for such waiver of recourse shall constitute a 
condition both as regards the continued use of license tags previously 
issued to the Cuban Interests Section as well as the acceptance and use 
of license tags in the future.
    (7) Enforcement: Pursuant to the Act at 22 U.S.C. 4311, provision 
to the Cuban Interests Section of any motor vehicle-related benefit 
contrary to the terms and conditions set forth above shall be unlawful. 
The United States is authorized to bring legal action to obtain 
compliance with the aforementioned terms and conditions.
    (8) Date of Effect: The provisions of this Determination shall take 
effect upon the earlier of (a) its publication in

[[Page 51062]]

the Federal Register; or (b) actual notice to any party or person 
affected hereby.
    (9) Publication of this Determination in the Federal Register 
constitutes notice to persons subject to the jurisdiction of the United 
States that terms and conditions on the acquisition and disposition of 
vehicles by the Cuban Interests Section are hereby imposed. Compliance 
with such terms and conditions are required by the Act. Persons wishing 
clarification as to the applicability of this Determination may contact 
the Office of Foreign Missions, U.S. Department of State, Washington, 
DC 20520; or by telephone: (202) 647-4554.

    Dated: August 8, 2003.
Francis X. Taylor,
Assistant Secretary of State for Diplomatic Security and Director, 
Office of Foreign Missions, Department of State.
[FR Doc. 03-21677 Filed 8-22-03; 8:45 am]
BILLING CODE 4710-43-P