Feb

21

U.S. May Be Considering Dropping Cuba from Terrorist Country List

Posted by at 5:01 pm on February 21, 2013
Category: Cuba Sanctions

Baracoa Main Street by Jorge E. San Roman http://commons.wikimedia.org/wiki/File:Baracoa_5705.JPG (CC BY-SA 2.5)It appears that the Department of State may be considering removing Cuba from the list of state sponsors of terrorism. The immediate impact of this will be howls of outrage from the rabid Babalú crowd and other die-hard supporter of Cuba sanctions. Of course, of more interest to the readership of this blog will be the practical impact of such a removal, if it occurs, on exports to Cuba.

If you think that the removal of Cuba from the list will permit unlicensed exports of food, medicine and agricultural goods to Cuba, think again. Although section 7205 of the Trade Sanctions Reform and Export Enhancement Act of 2000 (“TSRA”) does indeed impose a license requirement on shipments of these goods to state sponsors of terrorism, it also directly imposes that restriction on TSRA exports to Cuba. So a license will still be required even if Cuba is removed from the list.

Section 40 of the Arms Export Control Act prohibits granting licenses for the export of items on the United States Munitions List to state supporters of terrorism. So there is a theoretical possibility, I suppose, that if Cuba is removed from the list, the arms embargo against Cuba might also be lifted. Right. When pigs fly.

Then we have Section 6(j) of the now-defunct Export Administration Act as allegedly extended in force by various executive orders.  That provision requires that certain licenses for exports of goods on the Commerce Control List to state sponsors of terrorism be notified to Congress. Since licenses for CCL items are rarely granted in any event for Cuba, and seem unlikely to be granted even if Cuba is removed from the list, this doesn’t seem to an area in which Cuba’s removal would have much impact.

In sum, removal of Cuba from the list seems largely symbolic and with little practical effect. At most, it could presage a liberalization of the embargo down the road, particularly if the current Cuban government gnaws on this bone a little rather than simply regarding it with disdain.

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Copyright © 2013 Clif Burns. All Rights Reserved.
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One Comment:

Although we would need a more detailed analysis of the regulations to be sure, the practical effect may be bigger than you realize.

The Obama administration created license exception CCD to allow for computers to be donated to Cuba without a license. However, computers are useless without the appropriate software.

Last time I analyzed the regulations, I determined that donating a computer with preinstalled software is only permissible if all of the software is classified 4D994, 5D991, 5D992, or 5A992. Nearly all encryption-related software is classified 5D002 unless formally classified otherwise. Unfortunately, nowadays, almost all software includes encryption functionality, and in this age of open-source software and frequent patches and updates, it’s impractical to comply with the reclassification requirement.

This severely limits our ability to actually donate computer equipment to Cuba, because all computers come with a variety of unclassified, critical preinstalled software (such as drivers and support utilities) which impairs the computer’s functionality when removed.

I could be wrong, but the last time I analyzed the situation, this issue was not triggered by the munitions list, but instead it was triggered by Cuba’s presence on the state sponsors of terrorism list. Such software could be shipped freely to non-terrorist countries without a license. Removing Cuba from the state sponsors of terrorism list would make it much easier to actually use license exception CCD.

Comment by jcs on February 23rd, 2013 @ 1:02 pm