Back in August, the Bureau of Industry and Security issued an advisory opinion relating to a request from a number of U.S. art museums regarding temporary export of artworks from the United States to Cuba, presumably to be displayed in the 2014 Havana Biennial. A simple question, one would think, easily answered by the Berman Amendment which prohibits BIS from regulating “directly or indirectly” the export of “informational materials” to Cuba. But never, ever underestimate the inventiveness of BIS in figuring out ways to prevent the Commies in Cuba from being propped up by American paintings hanging on museum walls in Havana.

The BIS advisory opinion starts promisingly by conceding that BIS would be “prohibited from  regulating ‘information or informational material’ such as artwork.” But don’t start packing up your Rembrandts yet:

You stated in your request that the artwork would be transported to Cuba using a vessel. Please note that, pursuant to Section 746.2 of the EAR, an export license is required for the temporary sojourn of vessels to Cuba. The vessel may not travel to Cuba unless the exporter of the vessel first obtains a temporary sojourn license from BIS.

So, if you can have Scotty and the Starship Enterprise beam the artwork up to Havana, you don’t need an export license from BIS to send a painting to Cuba. Otherwise, so sad, too bad, but you’d better get permission from BIS first, Berman amendment or not. This rather defeats the part of the Berman amendment which says that BIS can’t regulate “directly or indirectly” the export of informational materials to Cuba or other sanctioned countries. Even OFAC, not a hotbed of pro-Cuba sympathy or Berman amendment enthusiasm, gets this. Section 515.550 of OFAC’s Cuban Assets Control Regulations makes clear that a vessel engaging in exempt transactions does not require a license to go to Cuba.

To add insult to injury, the advisory opinion says this:

[A]rtwork is considered “informational materials” exempt from the EAR’s jurisdiction when exported to Cuba if it is classified under Chapter subheadings 9701, 9702, or 9703 of the Harmonized Tariff Schedule of the United States (HTSUS). If the material at issue is exempt from the EAR, a BIS license is not required for its export to Cuba. Please contact the U.S. International Trade Commission if you need assistance with classifying the artwork in accordance with HTSUS.

Seriously, the person who wrote this opinion thinks that you get HTSUS classification decisions from the USITC. The USITC itself, as a quick to Google would have revealed to the author of the opinion, doesn’t think it can provide classification assistance:

Although, in principle, articles can be classified in only one place, classification often requires interpretation and judgment. U.S. Customs and Border Protection (CBP) has authority to make classification decisions and may disagree with a reasonable classification offered by the importer. Published Customs rulings (http://rulings.cbp.gov) are often useful to see how Customs looks at the issues. USITC does not issue classification decisions.

Even more bizarre, why does BIS suggest that the exporter needs to make some difficult decision to determine whether an artwork fits in a specific HTSUS tariff heading and then misdirect the exporter to the wrong agency to resolve that thorny issue? Evidently to make the museums think twice before they send paintings to Havana. It’s a slippery slope after all that starts with oil paintings and ends up with weapons of mass destruction.

[Note:  even though the advisory opinion suggests that all vessels need a license to go to Cuba, the museums could put the artwork on a boat, send it to a foreign port, and have a foreign boat transport the artwork to Cuba — an unnecessary, pointless and possibly hazardous solution.]