Restricting the Temporary Sojourn of Aircraft and Vessels to Cuba, 25986-25989 [2019-11777]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Rules and Regulations]
[Pages 25986-25989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11777]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740 and 746

[Docket No. 190524473-9473-01]
RIN 0694-AH87


Restricting the Temporary Sojourn of Aircraft and Vessels to Cuba

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: In this final rule, the Bureau of Industry and Security (BIS) 
further limits the types of aircraft that are

[[Page 25987]]

authorized to fly to Cuba and the types of vessels that are authorized 
to sail to Cuba on temporary sojourn. Specifically, this rule amends 
License Exception Aircraft, Vessels and Spacecraft (AVS) in the Export 
Administration Regulations (EAR) to remove the authorization for the 
export or reexport to Cuba of most non-commercial aircraft and 
passenger and recreational vessels on temporary sojourn. Additionally, 
this rule amends the licensing policy for exports and reexports to Cuba 
of aircraft and vessels on temporary sojourn to establish a general 
policy of denial absent a foreign policy or national security interest 
as determined by the U.S. Government. Consequently, private and 
corporate aircraft, cruise ships, sailboats, fishing boats, and other 
similar aircraft and vessels generally will be prohibited from going to 
Cuba. BIS is making these amendments to support the Administration's 
national security and foreign policy decision to restrict non-family 
travel to Cuba to prevent U.S. funds from enriching the Cuban regime, 
which continues to repress the Cuban people and provides ongoing 
support to the Maduro regime in Venezuela. These amendments are 
consistent with the National Security Presidential Memorandum on 
Strengthening the Policy of the United States Toward Cuba. signed by 
the President on June 16, 2017.

DATES: This rule is effective June 5, 2019.

FOR FURTHER INFORMATION CONTACT: Alan Christian, Foreign Policy 
Division, Office of Nonproliferation and Treaty Compliance, Bureau of 
Industry and Security, by email at [email protected], or by 
phone at (202) 482-4252.

SUPPLEMENTARY INFORMATION:

Background

    On June 16, 2017, President Trump announced changes to U.S. policy 
toward Cuba intended to enhance compliance with United States law; 
channel funds toward the Cuban people and away from the regime; 
encourage the Cuban government to address oppression and human rights 
abuses; further the national security and foreign policy interests of 
the United States, as well as express solidarity with the Cuban people; 
and lay the groundwork to improve human rights, encourage the rule of 
law, foster free markets and free enterprise, and promote democracy in 
Cuba. The President's policy is stated in the National Security 
Presidential Memorandum on Strengthening the Policy of the United 
States Toward Cuba (NSPM-5), dated June 16, 2017 (82 FR 48875, October 
20, 2017). NSPM-5 also directs the Secretary of Commerce, as well as 
the Secretaries of State and the Treasury, to take certain actions to 
implement the President's Cuba policy. On November 9, 2017, the 
Department of Commerce's Bureau of Industry and Security (BIS) and the 
Department of the Treasury's Office of Foreign Assets Control (OFAC) 
published rules in the Federal Register to implement certain portions 
of NSPM-5 (82 FR 51983 and 82 FR 51998, respectively). The Department 
of State also published the List of Restricted Entities and Subentities 
Associated with Cuba (Cuba Restricted List) (82 FR 52089), which is 
used by BIS in reviewing license applications submitted pursuant to the 
Export Administration Regulations (EAR) (15 CFR parts 730-774) and by 
OFAC in prohibiting certain direct financial transactions pursuant to 
the Cuban Assets Control Regulations (CACR) (31 CFR part 515). 
Additional entities and subentities have subsequently been added to the 
Cuba Restricted List (83 FR 57523, 84 FR 8939, and 84 FR 17228. Please 
also see the Department of State's website at: https://www.state.gov/cuba-sanctions/cuba-restricted-list/).
    On April 17, 2019, the White House announced that the 
Administration is holding the Cuban regime accountable for repressing 
the Cuban people and supporting the Maduro regime in Venezuela through 
multiple actions, including by restricting non-family travel to Cuba, 
or in other words, ``veiled tourism.'' Consequently, BIS is amending 
License Exception Aircraft, Vessels and Spacecraft (AVS) in Sec.  
740.15 of the EAR and the licensing policy for Cuba in Sec.  746.2 to 
generally prohibit non-commercial aircraft from flying to Cuba and 
passenger and recreational vessels from sailing to Cuba.

Amendments To License Exception Aircraft, Vessels and Spacecraft (AVS)

    Consistent with the embargo of Cuba, BIS authorization in the form 
of a license or license exception is required for the export or 
reexport to Cuba of all items subject to the EAR. Sec.  746.2(a)(1) of 
the EAR identifies the license exceptions, or portions thereof, that 
are available for exports and reexports to Cuba, including paragraphs 
(a) and (d) of License Exception AVS in Sec.  740.15 for, respectively, 
certain aircraft and vessels on temporary sojourn. Paragraph (a)(2) of 
License Exception AVS contains the terms and conditions that are 
specific to U.S. registered aircraft. This rule removes Cuba from 
eligibility for paragraph (a)(2)(ii), making general aviation (e.g., 
private and corporate aircraft) and certain other aircraft ineligible 
for License Exception AVS when destined for Cuba. The only civil 
aircraft of U.S. registry that remain eligible for License Exception 
AVS when destined for Cuba are commercial aircraft operating under Air 
Carrier Operating Certificates or certain other Federal Aviation 
Administration certificates or specifications identified in paragraph 
(a)(2)(i). Making non-commercial aircraft ineligible for License 
Exception AVS when destined for Cuba supports the President's policy to 
restrict non-family travel to Cuba.
    Additionally, this rule amends paragraph (a)(2)(i) of Sec.  740.15 
to make air ambulances operating under 14 CFR part 135 eligible for 
License Exception AVS. BIS routinely approved license applications for 
air ambulances to fly to Cuba on temporary sojourn before Cuba became 
eligible for paragraph (a)(2)(ii) in 2015. Given their use in 
evacuating individuals in medical distress with minimal advanced 
notice, air ambulances will remain eligible for the license exception 
when destined to Cuba.
    Paragraph (d)(6) of License Exception AVS contains Cuba-specific 
terms and conditions for the temporary sojourn of vessels to Cuba. This 
rule amends paragraph (d)(6) to remove passenger and recreational 
vessels from eligibility for temporary sojourn to Cuba. Now only cargo 
vessels for hire for use in the transportation of separately authorized 
items are eligible for export or reexport to Cuba on temporary sojourn 
provided all of the other terms and conditions of License Exception AVS 
are met. This rule also simplifies and makes conforming changes to 
paragraph (d)(6) of License Exception AVS. Making passenger and 
recreational vessels ineligible for License Exception AVS when destined 
for Cuba also supports the President's policy to restrict non-family 
travel to Cuba.

Amendment to Cuba Licensing Policy

    When a license exception is not available, Sec.  746.2(b) of the 
EAR explains that license applications for the export or reexport of 
items to Cuba are subject to a general policy of denial unless 
otherwise specified in that paragraph. This rule redesignates paragraph 
(b)(3)(ii) as (b)(4) and revises the text of the new paragraph (b)(4) 
to explain that applications for the export or reexport of most 
aircraft or vessels on temporary sojourn to Cuba are subject to a 
general policy of denial unless the export or reexport is consistent 
with the foreign policy or national security interests of

[[Page 25988]]

the United States. Applications for the temporary sojourn of aircraft 
operated by certificated air carriers or cargo vessels for hire that 
are not eligible for License Exception AVS will be reviewed on a case-
by-case basis, such as cargo vessels that may need to remain in Cuba 
beyond the 14-day limit in paragraph (d) of License Exception AVS due 
to port congestion. A note to paragraph (b)(4) explains that 
applications for private and corporate aircraft, cruise ships, 
sailboats, fishing vessels, and other similar aircraft and vessels will 
generally be denied. As a licensing policy of denial indicates, BIS 
will only issue licenses for the temporary sojourn to Cuba of non-
commercial aircraft or non-cargo vessels if such action is consistent 
with the national security and foreign policy interests of the United 
States, such as the temporary sojourn of vessels for use in oil spill 
response. Given the Administration's stated objectives of holding the 
Cuban regime accountable for its repression of the Cuban people, 
including by restricting non-family travel to Cuba, such licenses will 
be issued only in extraordinary circumstances. Thus, non-commercial 
aircraft and non-cargo vessels generally will be prohibited from going 
to Cuba.

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, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This final rule has been designated a ``significant 
regulatory action,'' although not economically significant, under 
section 3(f) of Executive Order 12866.
    2. This final rule is not subject to the requirements of E.O. 13771 
(82 FR 9339, February 3, 2017) because it is issued with respect to a 
national security function of the United States. This rule supports the 
Administration's national security and foreign policy objectives per 
the direction provided to agencies in National Security Presidential 
Memorandum on Strengthening the Policy of the United States Toward Cuba 
(NSPM-5). National Security Presidential Memoranda are used to 
promulgate Presidential decisions on national security matters. Thus, 
the primary direct benefit of this rule is to improve national 
security. Restricting non-family travel to Cuba will limit aircraft and 
vessel traffic, thus steering money away from the Cuban regime and its 
military and security services who control the tourism industry in 
Cuba. Accordingly, this rule meets the requirements set forth in the 
April 5, 2017, OMB guidance implementing E.O. 13771. See https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under Executive Order 13132.
    4. Pursuant to section 1762 of the Export Control Reform Act of 
2018, Public Law 115-232, tit. 17, subtitle B, 132 Stat. 2208 (2018), 
which was included in the John S. McCain National Defense Authorization 
Act for Fiscal Year 2019, this action is exempt from the Administrative 
Procedure Act (5 U.S.C. 553) requirements for notice of proposed 
rulemaking, opportunity for public participation, and delay in 
effective date.
    5. 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. 
Accordingly, no regulatory flexibility analysis is required and none 
has been prepared.
    6. Notwithstanding any other provision of law, no person may be 
required to respond to or 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 a 
collection currently approved by OMB under control number 0694-0088, 
Simplified Network Application Processing System. This collection 
includes, among other things, license applications, and carries a 
burden estimate of 42.5 minutes for a manual or electronic submission 
for a total burden estimate of 31,878 hours. BIS expects the burden 
hours associated with this collection to minimally increase and have 
limited impact on the existing estimates. Any comments regarding the 
collection of information associated with this rule, including 
suggestions for reducing the burden, may be sent to Jasmeet K. Seehra, 
Office of Management and Budget (OMB), by email to 
[email protected], or by fax to (202) 395-7285.

List of Subjects

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Part 746

    Exports, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 15 CFR Chapter VII, 
Subchapter C is amended as follows:

PART 740--[AMENDED]

0
1. The authority citation for 15 CFR part 740 continues to read as 
follows:

    Authority: Pub. L. 115-232, 132 Stat. 2208 (50 U.S.C. 4801 et 
seq.). 50 U.S.C. 4601 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 
8, 2018, 83 FR 39871 (August 13, 2018).


0
2. Section 740.15 is amended by:
0
a. Revising paragraphs (a)(2)(i) introductory text, (a)(2)(ii) 
introductory text, and (d)(6);
0
b. Redesignate Note to paragraph (d) as Note 1 to paragraph (d);
0
c. Revise the newly redesignated Note 1 to paragraph (d).
    The revisions read as follows:


Sec.  740.15   Aircraft, Vessels and Spacecraft (AVS).

* * * * *
    (a) * * *
    (2) U.S. registered aircraft. (i) A civil aircraft of U.S. registry 
operating under an Air Carrier Operating Certificate, Commercial 
Operating Certificate, or Air Taxi Operating Certificate issued by the 
Federal Aviation Administration (FAA), conducting flights under 
operating specifications approved by the FAA pursuant to 14 CFR part 
129, or air ambulances operating under 14 CFR part 135, may depart from 
the United States under its own power for any destination, provided 
that:
* * * * *
    (ii) Any other operating civil aircraft of U.S. registry may depart 
from the United States under its own power for any destination, except 
to Cuba or a destination in Country Group E:1 (see supplement no. 1 to 
this part) (flights to these destinations require a license), provided 
that:
* * * * *
    (d) * * *
    (6) Cuba, eligible vessels and purposes. For Cuba, only cargo 
vessels for hire for use in the transportation of items are eligible 
for this paragraph (d).


[[Page 25989]]


    Note 1 to paragraph (d). A vessel exported or reexported to a 
country pursuant to this paragraph (d) may not remain in that 
country for more than 14 consecutive days before it departs for a 
country to which it may be exported without a license or the United 
States.

* * * * *

PART 746--[AMENDED]

0
3. The authority citation for 15 CFR part 746 continues to read as 
follows:

    Authority: Pub. L. 115-232, 132 Stat. 2208 (50 U.S.C. 4801 et 
seq.); 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 
287c; Sec 1503, Pub. L. 108-11, 117 Stat. 559; 22 U.S.C. 6004; 22 
U.S.C. 7201 et seq.; 22 U.S.C. 7210; 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, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13338, 
69 FR 26751, 3 CFR, 2004 Comp., p 168; Presidential Determination 
2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Presidential 
Determination 2007-7, 72 FR 1899, 3 CFR, 2006 Comp., p. 325; Notice 
of May 9, 2018, 83 FR 21839 (May 10, 2018); Notice of August 8, 
2018, 83 FR 39871 (August 13, 2018).


0
4. Section 746.2 is amended by:
0
(a) Redesignating paragraph (b)(3)(ii) as paragraph (b)(4);
0
(b) Adding and reserving new paragraph (b)(3)(ii); and
0
(c) Revising newly redesignated paragraph (b)(4).
    The addition and revision read as follows:


Sec.  746.2   Cuba.

* * * * *
    (b) * * *
    (ii) [Reserved]
    (4) Temporary sojourns of aircraft and vessels. Applications for 
exports or reexports of aircraft or vessels on temporary sojourn to 
Cuba, other than aircraft operated by certificated air carriers or 
cargo vessels for hire, are subject to a general policy of denial 
unless consistent with the foreign policy or national security 
interests of the United States. Applications for exports or reexports 
of aircraft operated by certificated air carriers or cargo vessels for 
hire on temporary sojourn to Cuba may be authorized on a case-by-case 
basis.

    Note 1 to paragraph (b)(4): Applications for exports or 
reexports of private and corporate aircraft, cruise ships, 
sailboats, fishing vessels, and other similar aircraft and vessels 
on temporary sojourn to Cuba will generally be denied.

* * * * *

    Dated: May 31, 2019.
Richard E. Ashooh,
Assistant Secretary for Export Administration.
[FR Doc. 2019-11777 Filed 6-4-19; 8:45 am]
BILLING CODE 3510-33-P