[Code of Federal Regulations]
[Title 15, Volume 2]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR746.2]

[Page 359-361]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
  CHAPTER VII--BUREAU OF INDUSTRY AND SECURITY, DEPARTMENT OF COMMERCE
 
PART 746_EMBARGOES AND OTHER SPECIAL CONTROLS--Table of Contents
 
Sec.  746.2  Cuba.

    (a) License requirements. As authorized by section 6 of the Export 
Administration Act of 1979, as amended (EAA) and by the Trading with the 
Enemy Act of 1917, as amended, you will need a license to export or 
reexport all items subject to the EAR (see part 734 of the EAR for the 
scope of items subject to the EAR) to Cuba, except as follows.
    (1) License Exceptions. You may export or reexport without a license 
if your transaction meets all the applicable terms and conditions of any 
of the following License Exceptions. To determine the scope and 
eligibility requirements, you will need to turn to the sections or 
specific paragraphs of part 740 of the EAR (License Exceptions). Read 
each License Exception carefully, as the provisions available for 
embargoed countries are generally narrow.
    (i) Temporary exports and reexports (TMP) by the news media (see 
Sec.  740.9(a)(2)(viii) of the EAR).
    (ii) Operation technology and software (TSU) for legally exported 
commodities (see Sec.  740.13(a) of the EAR).
    (iii) Sales technology (TSU) (see Sec.  740.13(b) of the EAR).

[[Page 360]]

    (iv) Software updates (TSU) for legally exported software (see Sec.  
740.13(c) of the EAR).
    (v) Parts (RPL) for one-for-one replacement in certain legally 
exported commodities (see Sec.  740.10(a) of the EAR).
    (vi) Baggage (BAG) (see Sec.  740.14 of the EAR).
    (vii) Governments and international organizations (GOV) (see Sec.  
740.11 of the EAR).
    (viii) Gift parcels and humanitarian donations (GFT) (see Sec.  
740.12 of the EAR).
    (ix) Items in transit (TMP) from Canada through the U.S. (see Sec.  
740.9(b)(1)(iv) of the EAR).
    (x) Aircraft and vessels (AVS) for certain aircraft on temporary 
sojourn (see Sec.  740.15(a) of the EAR).
    (xi) Permissive reexports of certain spare parts in foreign-made 
equipment (see Sec.  740.16(h) of the EAR).
    (xii) Exports of agricultural commodities, classified as EAR99, 
under License Exception Agricultural Commodities (AGR) and certain 
reexports of U.S. origin agricultural commodities, classified as EAR99, 
under License Exception AGR (see Sec.  740.18 of the EAR).
    (2) [Reserved]
    (b) Licensing policy. Items requiring a license are subject to a 
general policy of denial, except as follows:
    (1) Medicines and Medical Devices. Applications to export medicines 
and medical devices as defined in part 772 of the EAR will generally be 
approved, except:
    (i) To the extent restrictions would be permitted under section 5(m) 
of the Export Administration Act of 1979, as amended (EAA), or section 
203(b)(2) of the International Emergency Economic Powers Act;
    (ii) If there is a reasonable likelihood that the item to be 
exported will be used for purposes of torture or other human rights 
abuses;
    (iii) If there is a reasonable likelihood that the item to be 
exported will be reexported;
    (iv) If the item to be exported could be used in the production of 
any biotechnological product; or
    (v) If it is determined that the United States government is unable 
to verify, by on-site inspection or other means, that the item to be 
exported will be used for the purpose for which it was intended and only 
for the use and benefit of the Cuban people, but this exception shall 
not apply to donations of medicines for humanitarian purposes to a 
nongovernmental organization in Cuba.
    (2) Telecommunications commodities may be authorized on a case-by-
case basis, provided the commodities are part of an FCC-approved project 
and are necessary to provide efficient and adequate telecommunications 
services between the United States and Cuba.
    (3) Exports from third countries to Cuba of non-strategic foreign-
made products that contain an insubstantial proportion of U.S.-origin 
materials, parts, or components will generally be considered favorably 
on a case-by-case basis, provided all of the following conditions are 
satisfied:
    (i) The local law requires, or policy favors, trade with Cuba;
    (ii) The U.S.-origin content does not exceed 20 percent of the value 
of the product to be exported from the third country. Requests where the 
U.S.-origin parts, components, or materials represent more than 20 
percent by value of the foreign-made product will generally be denied. 
See Supplement No. 2 to part 734 of the EAR for instructions on how to 
calculate value; and
    (iii) You are not a U.S.-owned or -controlled entity in a third 
country as defined by OFAC regulations, 31 CFR part 515, or you are a 
U.S.-owned or controlled entity in a third country and one or more of 
the following situations applies:
    (A) You have a contract for the proposed export that was entered 
into prior to October 23, 1992.
    (B) Your transaction involves the export of foreign-produced 
medicines or medical devices incorporating U.S. origin parts, components 
or materials, in which case the application will be reviewed according 
to the provisions of paragraph (b)(1) of this section.
    (C) Your transaction is for the export of foreign-produced 
telecommunications commodities incorporating U.S.-origin parts, 
components and materials, in which case the application will be reviewed 
under the licensing

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policy set forth in paragraph (b)(2) of this section.
    (D) Your transaction is for the export of donated food to 
individuals or non-governmental organizations in Cuba and does not 
qualify as a humanitarian donation under License Exception GFT (Sec.  
740.12 of the EAR) or License Exception AGR (Sec.  740.18 of the EAR).
    (4) Applications for licenses may be approved, on a case-by-case 
basis, for certain exports to Cuba intended to provide support for the 
Cuban people, as follows:
    (i) Applications for licenses for exports of certain commodities and 
software may be approved to human rights organizations, or to 
individuals and non-governmental organizations that promote independent 
activity intended to strengthen civil society in Cuba when such exports 
do not give rise to U.S. national security or counter-terrorism 
concerns. Examples of such commodities include fax machines, copiers, 
computers (e.g., 486-level/CTP of 24.8 MTOPS or less), business/office 
software, document scanning equipment, printers, typewriters, and other 
office or office communications equipment. Applicants may donate or sell 
the commodities or software to be exported. Reexport to other end-users 
or end-uses is not authorized.
    (ii) Commodities and software may be approved for export to U.S. 
news bureaus in Cuba whose primary purpose is the gathering and 
dissemination of news to the general public. In addition to the examples 
of commodities and software listed in paragraph (b)(4)(i) of this 
section, certain telecommunications equipment necessary for the 
operation of news organizations (e.g., 33M bit/s data signaling rate or 
less) may be approved for export to U.S. news bureaus.
    (iii) Exports of agricultural items, which are outside the scope of 
agricultural commodities as defined in part 772 of the EAR, such as 
insecticides, pesticides and herbicides, as well as agricultural 
commodities not eligible for License Exception AGR, require a license 
and will be reviewed on a case-by-case basis.
    (c) Cuba has been designated by the Secretary of State as a country 
whose government has repeatedly provided support for acts of 
international terrorism. For anti-terrorism controls, see Supplement 2 
to part 742 of the EAR.
    (d) Definitions. For purposes of this section, ``U.S. person'' means 
any person subject to the jurisdiction of the United States, as 
described in Sec.  515.329 of the Cuban Assets Control Regulations (31 
CFR 515.329).
    (e) Related controls. OFAC maintains controls on the activities of 
persons subject to U.S. jurisdiction, wherever located, involving 
transactions with Cuba or any specially designated Cuban national, as 
provided in 31 CFR part 515. OFAC's Terrorism List Government Sanctions 
Regulations in 31 CFR part 596 prohibit U.S. persons from engaging in a 
financial transaction with the government of a designated state sponsor 
of international terrorism without OFAC authorization. The Department of 
State also implements sanctions on countries that are designated state 
sponsors of international terrorism. Exporters and reexporters should 
consult with those agencies for further guidance on these related 
controls.

[61 FR 12802, Mar. 25, 1996, as amended at 61 FR 64284, Dec. 4, 1996; 62 
FR 9364, Mar. 3, 1997; 62 FR 25459, May 9, 1997; 64 FR 25808, May 13, 
1999; 66 FR 36682, July 12, 2001]