INTRODUCTION

On October  14, 2016, the  U.S. Departments of the Treasury  and Commerce  announced  further amendments  to the Cuban Asset  Control  Regulations "(CACR") one of which  will directly impact international shipping. The announcement by the Treasury and Commerce Departments can be found at:https://www.treasury.gov/resource-center/sanctions/Programs/Documents/cuba_fact_sheet_10142016.pdf

THE AMENDMENT

The CACR, in 31 CFR 515.207(a), sets forth the what has become known as the 11180 Day Rule", which provides that no vessel which has called at Cuba to engage in trade or to take on provisions or services may enter a U.S. port for the purpose of loading or unloading cargo for 180 days after it departs Cuba. An exception to the 180 Day Rule has always been contained in 31 CFR 515.550, which excepted certain authorized shipments, as well as agricultural commodities, medicine and medical devices that would be designated as EAR 99 under the U.S. Export Administration Regulations, if they were located in the U.S. A further limited exception was introduced in March 2016 via an amendment to the License Exception AVS.

31 CFR  515.550  is now  being amended  by the  addition  of  a  general  license  that  will  considerably expand the types of cargoes exempted from the 180 Day Rule. 31 CFR 515.550(b) now provides that the 180 Day Rule will not apply to 11... "a foreign vessel that has engaged in the exportation to Cuba from a third country only of items that, were they subject to the EAR, would be designated as EAR99 or would be controlled on the Commerce Control List only for anti-terrorism reasons."

Therefore, if a foreign vessel calls at Cuba with only cargo from a third country, which cargo, if it were subject to the U.S. Export Administration Regulations, would be designated as EAR99, or would be controlled on the Commerce Control List only for anti-terrorism reasons, that vessel is not prohibited from thereafter calling at a U.S. port.

WHAT IS THE EAR?

The U.S. Department of Commerce administers the Export Administration  Regulations ("EAR"), which are found at 15 CFR §§ 730-774.  The EAR regulate the export of "dual-use" items from the U.S., that is, items designed  for  commercial  purposes,  but which  could  also  have military  uses. Controlled  items under the EAR, which require an export license, are listed on the Commerce Control List ("CCL"), which is published at 15 CFR 774, Supplement 1. An alphabetical list of CCL items can be found at: http://www.access.gpo.gov/bis/ear/pdf/indexccl.pdf ,under the heading "Commerce Control List Index" on the left side of the page.

The regulations include an additional "basket" category, EAR99, which covers any goods or technology that are subject to the EAR as defined in 15 CFR §734.3(a), but that are not on the CCL. Items on the CCL are assigned an Export Control Classification Number ("ECCN"). If a cargo is not listed on the CCL with an ECCN, then it falls into the "basket" of EAR99. 15 CFR §732 sets forth detailed steps for examining the classification of goods under the EAR. However, the process of determining whether or not a cargo is classified as EAR99 is not uncomplicated, and shipowners intending to call at a U.S. port immediately after discharging cargo in Cuba, should carefully examine whether the cargo to be discharged in Cuba would be designated as EAR99.

SUMMARYThe CACR have been amended to except from the 180 Day Rule vessels carrying a wide range of cargoes from third countries to Cuba. If a foreign vessel only discharges in Cuba goods from a third country which would be classified EAR99 under the U.S Export Administration Regulations, that vessel is not subject to the 180 Day Rule and may immediately thereafter call at a U.S port.