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BXA allows exports and certain reexports of "agricultural commodities" to Cuba under the License Exception AGR.
TSRA defines agricultural commodities by reference to Section 102 of the Agricultural Trade Act of 1978 (7 U.S.C. §5602). Agricultural commodities include, but are not limited to, food, feed, fish, shellfish and fish products; beer, wine and spirits; soft drinks; livestock; fiber, including cotton, wool and other fibers; tobacco and tobacco products; wood and wood products, including lumber and utility poles; seeds; and reproductive materials such as fertilized eggs, embryos and semen. In addition, vitamins, minerals, food additives and dietary supplements, and bottled water are also included. Organic and inorganic fertilizers are also included , unless BXA classifies the fertilizer under ECCN 1C997 (i.e., dry fertilizers containing more than 15% ammonium nitrate - see question #3 below). The Department of Agriculture maintains a [pdf] list of agricultural commodities that are eligible for License Exception AGR. There are three commodities on this list - - live horses, western red cedar, and fertilizers - - that require an official commodity classification from BXA to determine whether or not they are eligible for AGR. Note that bottled water, vitamins, minerals, food additives and dietary supplements are not the Department of Agriculture list, but are considered agricultural commodities by BXA and OFAC. BXA and OFAC use the same definitions for agricultural commodities.
Yes. Any item that is on the Commerce Control List is not eligible. For example, live horses exported by sea (ECCN 0A980) and unprocessed western red cedar (ECCN 1C988) are not eligible. Neither is ammonium nitrate, including certain fertilizers and fertilizer blends. Dry fertilizers containing more than 15% by weight ammonium nitrate are classified as ECCN 1C997 and are not eligible. Dry fertilizer containing 15 % or less ammonium nitrate and liquid fertilizers regardless of the concentration of ammonium nitrate are eligible. Exporters who are not sure if their products are eligible should submit a commodity classification request to BXA.
Yes. Cuban government entities may be recipients of U.S. exports of agricultural commodities, unless the Cuban government entity is involved in promoting international terrorism (e.g., listed as a Specially Designated Terrorists or Foreign Terrorist Organization), has been denied export privileges by the Department of Commerce and the transaction would violate the terms of the denial order, or is engaged in weapons proliferation activities).
No. The definition of agricultural commodities used in TSRA does not include pesticides, insecticides, or herbicides. Potential exporters, however, may apply to export such items to Cuba under BXA's standard licensing procedures. In general, our policy is to deny applications for licenses to export most items to Cuba; however, pesticides and herbicides might be approved on a case-by-case basis as exports to provide support for the Cuban people (see Section 746.2(b) of the EAR). Applications to export such items to well known international organizations for public health purposes are those least likely to be denied.
Whether or not an item is genetically modified does not affect its eligibility for License Exception AGR. If an item is both an agricultural commodity and EAR99, it is eligible. Note that certain GMOs are classified on the CCL under ECCN 1C353 and are not eligible for License Exception AGR or OFAC's expedited review procedures. In addition, genetically modified materials that are not within the definition of agricultural commodity (see question 2 above) are not eligible. Technology for production of genetically modified organisms is not eligible.
No. License Exception AGR applies only to exports and reexports of U.S. agricultural commodities to Cuba. The TSRA implementing rule does not affect U.S. export regulations on the export of technology, software and equipment used to grow or manufacture agricultural commodities.
No. Exports of agricultural equipment, hand tools or machinery, are not eligible for AGR. Applications to export agricultural equipment are subject to a general policy of denial. However, donations of hand tools and equipment suitable for small farms, such as rotor tillers, may be eligible for export under License Exception GFT (see Section 740.12(b) of the EAR) or under an export license issued by BXA.
Yes. Tobacco and tobacco products, including cigarettes, are included in the definition of agricultural commodities.
No. Cardboard boxes are not agricultural commodities, and therefore, are not eligible for License Exception AGR.
Yes, exporters may use License Exception AGR to export donations of food and non-food agricultural commodities and commercial samples. For donations and samples, there is no contract requirement. The exporter must ship the goods within12 months of the date of BXA's notification to the exporter that no reviewing agency objected to the use of License Exception AGR. Exporters, however, may want to also consider using License Exception Gift Parcels and Humanitarian Donations (GFT) - if they meet the eligibility criteria for this license exception. License Exception GFT authorizes exports and reexports of food in gift parcels by an individual to another individual or eligible group without a license. In addition, GFT authorizes exports or reexports by certain U.S. charitable organizations (see Section 740.12(b)(3) of the EAR for requirements the organization must meet) of donations to meet basic human needs when those groups or organizations have experience in such charitable activities. See Section 740.12 of the Export Administration Regulations for information about License Exception GFT.
Yes, if an export meets all the criteria, an exporter may continue to use License Exception GFT to donate food and other eligible commodities (e.g., clothing, soap) to Cuba. Note that non-food agricultural commodities are not eligible for export in gift parcels (see Section 740.12(a)).
No. License Exception AGR applies only to eligible agricultural commodities to Cuba. Exporters must have authorization from OFAC prior to exporting U.S. agricultural or medical commodities to Iran, Libya, or Sudan or reexporting such commodities by U.S. persons to Iran, Libya, or Sudan.
The Trade Sanctions Reform and Export Enhancement Act did not clearly repeal or supersede the relevant Cuban Democracy Act (CDA) provisions on medical items so the latter's requirements still apply. The CDA requires a specific license for exports of medicines and medical items. In addition, there are certain criteria, such as on-site monitoring requirements, that have to be met.
License Exception AGR authorizes exports and reexports of agricultural commodities only. It does not affect or replace existing OFAC regulations relating to travel to Cuba. Anyone wishing to travel to Cuba must still comply with those regulations.
No. OFAC and BXA licensing requirements for vessels bound for Cuba or for items on those vessels remain in place. BXA requires a license for the export of a vessel and for ship stores to Cuba even if the vessel is carrying only authorized commodities to Cuba. There is no License Exception available for exports of vessels or ship stores to Cuba. Exporters will need a specific license to export a vessel to Cuba even if it is a "temporary sojourn" and the ship will not remain in Cuba. BXA's average processing time for applications for such license applications is about 35 days. Persons interested in shipping eligible commodities to Cuba should submit their license applications early.
OFAC regulations governing such activities are unchanged. Those regulations provide a waiver for vessels that are delivering commodities authorized by the U.S. Government or items exempt from regulation (See 31 C.F.R. Part 515.550). Interested parties should contact OFAC for further information on this subject.
No. Exporters must have a written contact before shipping under License Exception AGR unless the shipment is a donation or a commercial sample.
We will not register the notification in BXA's electronic data system until all the required information on the 748P form is complete. We will work with exporters, but if the applicant fails to provide the required information, we will return the notification. BXA and the other government agencies will not review incomplete applications.
No. The exporter would have to submit a new notification and obtain a new AGR authorization before shipping the additional amount. There is no penalty for exporting less than authorized, but an exporter may not exceed the authorized levels.
No. An exporters may not substitute items that were not included in the original notification and for which BXA confirmed that no reviewing agency objected to the use of License Exception AGR. Exporters can increase their flexibility by providing, on their notifications, general descriptions of the agricultural commodities they wish to export. For example, one might list "grains (e.g., rice, corn, wheat, or barley)" or "various vegetables (e.g., peas, green beans, tomatoes)".
No. BXA has no plans to create such a list. BXA maintains the notification requirement to allow review of the commodities and the end-user, and to collect the information that the Act requires that BXA report to Congress.
Yes. These exports are transaction specific and any change will require a new notification.
Not necessarily. Exporters may continue to ship the authorized agricultural commodities to the authorized end-user until they exhaust the authorized amount or 12 months have elapsed since the written contract was signed. The regulations do not impose a limit on the number shipments that may be made within these parameters.
Exporters may not ship to any recipients other than those listed in their AGR notification. Before shipping to another recipient, the exporter must submit a new notification and obtain a new confirmation from BXA that no reviewing agency objects to the use of License Exception AGR. However, exporters may ship to the approved recipient at any of the recipient organization's locations in Cuba, not just the location listed in the notification. License Exception AGR may not be used under any circumstances to ship to destinations outside Cuba.
Begin by filing a notification with BXA.
You may either use the BXA multipurpose form 748P or file electronically through BXA's Simplified Network Application Procedure (SNAP).
You may request forms on line or by contacting the Office of Exporter Services at 202-482-4811. In addition, the Department of Commerce's Commercial Service district offices often have forms. Check your local listing for the locations of Department of Commerce offices.
SNAP is the acronym for BXA's Simplified Network Application Process. This allows exporters to electronically submit export/reexport license applications, notifications, and commodity classification requests. See the online information about SNAP.
Exporters may call BXA's "System for Tracking Export License Applications" (STELA) at 202-482-2752 and enter the Application Control Number (it begins with "Z" followed by six digits) for the status of their notifications. You must wait until either STELA reports that there has been no objection or until you receive written confirmation that no reviewing agency has objected.
STELA is the acronym for BXA's automated System for Tracking Export License Applications. It is an automated voice response system that can be accessed using a touch-tone phone.
To submit a notification, complete the multipurpose export authorization form (BXA-748P). This is the same form that exporters use to submit license applications and commodity classification requests. For submitting notifications, you only need to complete certain parts of the form, as indicated below:
BLOCKS:
1. Contact person - someone who can provide information about the application.
2. Telephone number
3. Fax number
4. Date of application
5. Type of application - check OTHER
6. Documents submitted - check LETTER OF EXPLANATION (optional)
7. through 13. - Not applicable (do not fill out)
15. Other party - (optional)
16. Purchaser - enter the name and address of the Cuban or other purchaser, if applicable (leave blank if the transaction involves a donation or sample)
17. Intermediate consignee - enter the name and address of the Cuban or other intermediate consignee, if applicable (this could be someone who will receive the goods in Cuba and deliver them to the ultimate consignee)
18. Ultimate consignee - enter the name and address of the person or organization in Cuba who will receive and use the goods
19. End-user - enter the name and address of the end-user(s), if applicable (complete this block if the ultimate consignee will not be the final end-user, for example, in a situation where the ultimate consignee acts as a distributor)
20. Original ultimate consignee - enter the name and address of the foreign entity (this block is to be used only for reexport transactions)
21. Specific end-use - enter a brief statement describing the end-use (e.g., wheat to make flour; food for a hotel restaurant)
22. (a) - ECCN - enter EAR99 (you must be certain of this; any other classification is not eligible for the provisions of License Exception AGR )
(b) - N/A
(c) - Model number, if applicable
(d) - enter the commodity classification number (CCATS) if previously classified by BXA
(e) - Quantity - how many units?
(f) - Units - enter applicable measure of quantity (lbs., tons, boxes, containers, etc.)
(g) - Unit price - enter fair market value, for sales and donations
(h) - Total price - multiply (e) times (f)
(i) - Manufacturer - if applicable
(j) - Technical description - enter a detailed description for all commodities intended for export/reexport; use a letter of explanation if necessary
23. Total value - enter value of all items on application
24. Additional information - enter here or in a cover letter any additional information that will help us understand the application
25. Signature/printed name/title
Exporters may need a commodity classification for exports of certain agricultural commodities to Cuba. BXA requires that a BXA commodity classification determination be submitted with notifications for fertilizers, western red cedar, and live horses. The U.S. Department of Agriculture web site includes a list of eligible agricultural commodities, most of which are eligible for License Exception AGR. BXA has determined that all items on that list except for western red cedar and live horses are EAR99 and do not require a prior commodity classification. Fertilizers, although not on that list, are considered agricultural commodities for purposes of License Exception AGR but do require a prior classification. The twelve day notification period does not provide sufficient time to make commodity classification determinations as part of the notification process; therefore, exporters must request a commodity classification prior to submitting a notification for items that may be on the CCL.
The answer depends on the items that you propose to export:
Agricultural Commodities: You do NOT need a BXA commodity classification prior to applying for a license to export agricultural commodities on the Department of Agriculture's eligible commodities list [pdf] with the exception of western red cedar and live horses. BXA has reviewed the items on that list and classified them as EAR99, with the exception of western red cedar and live horses. You do need a commodity classification for fertilizers (which are considered agricultural commodities for purposes of License Exception AGR even though not on the eligible commodities list), western red cedar, and live horses. Note that bottled water, vitamins, minerals, food additives and dietary supplements also are not the Department of Agriculture list, but are considered agricultural commodities for the purposes of License Exception AGR.
Medicine: Exporters are not required to have commodity classifications for exports of medicines prior to submitting an application to OFAC. However, medicines on the Commerce Control List are not eligible for OFAC's expedited procedure. Anyone uncertain about the classification of the medicine must submit a commodity classification request to BXA before submitting an application to OFAC.
Medical Devices (e.g., supplies, instruments and equipment): You must have an official commodity classification for medical devices that are NOT included in the BXA's list of EAR99 medical supplies prior to submitting an application to OFAC.
To request a commodity classification in advance of submitting a TSRA notification to BXA for a proposed export to Cuba or submitting a license application to OFAC for a proposed export to Iran, Libya, or Sudan, fill out the multipurpose export authorization form (BXA-748P) as indicated below.
BLOCKS:
1. Contact person- someone who can provide information about the application
2. Telephone number
3. Fax number
4. Date of application
5. Type of application - check CLASSIFICATION REQUEST
6. Documents submitted - checkTECH SPECS & LETTER OF EXPLANATION (optional)
7. and 8. - Not applicable (do not fill out)
9. Special purpose - Enter "TSRA"
10. through 13. - N/A
14. Applicant - enter the name and address of the requesting firm or individual
15. Other party - (optional)
16. Purchaser - N/A
17. Intermediate consignee - N/A
18. Ultimate consignee - enter the name and address, if you know it
19. End-user - enter the name and address of the end-user(s), if you know them
20. Original ultimate consignee - N/A
21. Specific end-use - enter a brief statement describing the end-use, if you know it
22.
(a) - ECCN - enter your recommended classification number
(b) - N/A
(c) - Model number - if applicable
(d) - enter the commodity classification number (CCATS) if previously classified by BXA
(e) - Quantity - N/A
(f) - Units - N/A
(g) - Unit price - N/A
(h) - Total price - N/A
(i) - Manufacturer - if applicable
(j) - Technical description - enter a detailed description of all commodities to be classified; use a cover letter/letter of explanation if necessary
23. Total value - N/A
24. Additional information - for a classification request, use this space to explain why you believe the ECCN entered in block 22(a) is appropriate. This explanation must contain an analysis of the item in terms of the technical control parameters specified in the appropriate ECCN. If you have not identified a recommended classification in block 22 (a), please state the reason why you cannot determine the appropriate classification.
25. Signature/Printed name/Title