[Federal Register Volume 69, Number 119 (Tuesday, June 22, 2004)]
[Rules and Regulations]
[Pages 34565-34567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14227]


=======================================================================
-----------------------------------------------------------------------

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.

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

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: 
[email protected].

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 [email protected] 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