13 May April 1999
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: May 13, 1999 (Volume 64, Number 92)]
[Rules and Regulations]
[Page 25807-25808]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my99-6]

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DEPARTMENT OF COMMERCE

Bureau of Export Administration

15 CFR Part 746

[Docket No. 990427108-9108-01]
RIN 0694-AB93


Exports to Cuba

AGENCY: Bureau of Export Administration, Commerce.

ACTION: Final rule.

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SUMMARY: The Department of Commerce, Bureau of Export Administration is
amending the Export Administration Regulations to implement a part of
the January 5, 1999, Presidential initiative to enhance the United
States' support of the Cuban people to promote a transition to
democracy. This final rule authorizes the issuance of licenses for
exports of food and certain agricultural commodities sold to
individuals and independent non-governmental entities in Cuba. This
rule will increase the number of license applications submitted to the
Department of Commerce for exports to Cuba.

DATES: This rule is effective May 10, 1999.

FOR FURTHER INFORMATION CONTACT: James Lewis, Director, Office of
Strategic Trade and Foreign Policy, Bureau of Export Administration,
Telephone: (202) 482-0092.

SUPPLEMENTARY INFORMATION:

Background

    On January 5, 1999, the President announced that the United States
will initiate certain actions to enhance support of the Cuban people to
promote transition to democracy. In doing this, the U.S. seeks to
assist and support the Cuban people without strengthening the current
Cuban government. The objective is to promote the development and
evolution of an independent civil society to help promote a transition
to a free, independent, and prosperous nation.
    These measures are consistent with the Cuban Democracy Act of 1992,
as amended, and the Cuban Liberty and Democratic Solidarity (LIBERTAD)
Act of 1996. The President is authorized to furnish assistance and
provide other support for individuals and independent non-governmental
organizations in Cuba.
    Under the President's initiative, the Department of Commerce,
Bureau of Export Administration (BXA) may approve, on a case-by-case
basis, applications for exports of food (both solids and liquids) and
certain agricultural commodities for sale to independent non-
governmental entities (i.e., individuals and other entities that are
not controlled, owned or operated by the Cuban government) in Cuba. For
purposes of the new initiative, ``independent non-governmental
entities'' is defined to include religious groups, private farmers, and
private sector undertakings such as family restaurants. When submitting
applications, applicants must demonstrate on the license application
that the prospective end-user or class of end-users is independent from
the Cuban government. Include such information in Block 24, Additional
Information, on Form BXA-748P. The U.S. Government will review this
information within 30 days. Agricultural commodities that may be
authorized for sale under the new policy include, but are not limited
to, insecticides, pesticides, herbicides, seeds and fertilizer.
Agricultural equipment is not eligible for consideration under this
policy.
    Consistent with existing practice, the Department of Treasury,
Office of Foreign Assets Control (OFAC) will generally authorize
financial transactions (e.g., purchase price, shipping and handling
charges) related to export sales of food or agricultural commodities
specifically authorized by BXA. Therefore, an export sale of food
authorized by Commerce will not require additional specific
authorization from OFAC for shipping, obtaining payments or other
financial transactions. Licenses may be authorized to pay for local
warehousing and transportation services provided that charges and fees
levied for delivery are customary and reasonable.
    Exporters are advised to indicate on their license applications for
the export of food and agricultural commodities whether they plan to
deliver such commodities to Cuba by vessel or aircraft. An export
license must be obtained from BXA for vessels to transport licensed
commodities to Cuba. Authorization for the vessel and for necessary
ship stores may be requested at the time of application for the export
of food or agricultural commodities for sale in Cuba under the new
policy. However, note that authorization must be obtained from OFAC for
the return of such vessels to the United States within 180 days of
leaving Cuba. OFAC is publishing elsewhere in this issue of the Federal
Register a separate regulation that allows the return of such vessels
under a General License, provided that all items have been authorized
via applicable Federal regulations. Aircraft flying to Cuba to deliver
commodities licensed under this policy must be eligible for License
Exception AVS (see Sec. 740.15 of the EAR) or must be specifically
licensed by BXA.
    The President also called for expansion of people-to-people
contacts between the United States and Cuba by facilitating travel of
persons from the United States to Cuba and from Cuba to the United
States, and streamlining licensing procedures for authorizing such
travel. Pursuant to the President's initiative, BXA will also review,
on a case-by-case basis, license applications requesting authorization
to use private aircraft for temporary sojourn for travel to Cuba
involving educational, cultural, journalistic, religious, or athletic
exchanges and other people-to-people contacts. This policy furthers the
President's March 1998 initiative, under which BXA is already
reviewing, with a presumption of approval, applications for temporary
exports of private aircraft involving humanitarian aid and assistance
programs. This policy is applicable to temporary sojourn flights from
the U.S. to Cuba of aircraft not eligible for BXA License Exception AVS
(see Sec. 740.15 of the EAR), and that require specific authorization
from BXA. Note that aircraft may fly on regularly scheduled charter
flights to Cuba generally under License Exception AVS. OFAC must
authorize travel by U.S. persons associated with such flights. Any
commodities included on the aircraft that do not qualify for License
Exception BAG (see Sec. 740.14 of the EAR) or License Exception TMP
(see Sec. 740.9 of the EAR) require a specific Commerce license
authorizing the export of such items to Cuba.
    As another part of this initiative, other agencies will authorize
direct charter flights to Cuba departing from U.S. cities other than
Miami by separate notice. The United States is also seeking to
reestablish direct mail between the United States and Cuba. This
measure requires the agreement of the Cuban

[[Page 25808]]

government. BXA reminds exporters that the mailing of gift packages
through U.S. mail still constitutes an export and must meet the
content, frequency and dollar value requirements of
Secs. 746.2(a)(1)(viii) and 740.12 of the EAR, or be specifically
licensed by BXA.
    Although the Export Administration Act (EAA) expired on August 20,
1994, the President invoked the International Emergency Economic Powers
Act and continued in effect the EAR, and, to the extent permitted by
law, the provisions of the EAA in Executive Order 12924 of August 19,
1994, extended by Presidential notice of August 13, 1998 (63 FR 44121,
August 17, 1998).

Rulemaking Requirements

    1. This interim rule has been determined to be not significant for
purposes of E.O. 12866.
    2. Notwithstanding any other provision of law, no person is
required to, nor shall any person be subject to a penalty for failure
to comply with a collection of information, subject to the Paperwork
Reduction Act (PRA), unless that collection of information displays a
currently valid OMB Control Number. This rule involves a collection of
information previously approved by the Office of Management and Budget
under control number 0694-0088, ``Multi-Purpose Application,'' which
carries a burden hour estimate of 45 minutes per manual submission and
40 minutes per electronic submission. In addition, miscellaneous and
recordkeeping activities account for 12 minutes per submission. As a
result of this rule, the paper work burden on the public is increased
by 22 hours on an annual basis.
    3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under E.O.
12612.
    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 and foreign affairs
function of the United States (Sec. 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 interim final rule.
Because a notice of proposed rulemaking and an opportunity for public
comment are not required to be given for this rule under 5 U.S.C. or by
any other law, the requirements of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) are not applicable.

List of Subjects in 15 CFR Part 746

    Exports, Foreign trade, Reporting and recordkeeping requirements.

    Accordingly, 15 CFR chapter VII, subchapter C, is amended as
follows:

PART 746--[AMENDED]

    1. The authority citation for 15 CFR part 746 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. 287c, 6004; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p.
899; E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 13,
1997 (62 FR 43629, August 15, 1997); Notice of August 13, 1998 (63
FR 44121, August 13, 1998).

    2. Section 746.2 is amended by adding a new paragraph (b)(4)(iii)
to read as follows:

Sec. 746.2  Cuba.

* * * * *
    (b) * * *
    (4) * * *
    (iii) Exports of food (both solids and liquids) and agricultural
commodities may be approved, on case-by-case basis, for use by
independent non-government entities in Cuba. Such entities may not be
controlled, owned or operated by the Cuban government. Applicants must
demonstrate on the license application in Block 24, Additional
Information, that the prospective class or classes of end-users are
independent from the Cuban government.
    (A) Agricultural commodities that will be considered for approval
include, but are not limited to, insecticides, herbicides, pesticides,
seeds and fertilizer. Agricultural equipment is not eligible under this
paragraph (b)(4)(iii) for sale to Cuba.
    (B) For purposes of this paragraph (b), independent non-government
entities include, but are not limited to, religious groups, private
farmers, and private sector undertakings such as family restaurants.
* * * * *
    Dated: May 10, 1999.
R. Roger Majak,
Assistant Secretary for Export Administration.
[FR Doc. 99-12132 Filed 5-10-99; 3:39 pm]
BILLING CODE 3510-33-P
