Developments in U.S. Sanctions Against Cuba Kim Strosnider and Jennifer Holmes April 8, 2015
Introduction & Agenda I. Historical and Political Background: The Cuba Embargo II. The Obama Administration s Announcement: Charting a New Course on U.S.-Cuba Relations III. Prospects for the Future Credit: Huffington Post 2
I. Historical & Political Background: The Cuba Embargo
U.S.-Cuba Relations & the Embargo U.S.- Cuba relations dramatically changed during several fateful years in the 1950s/1960s: 1956: Fidel Castro unsuccessfully attempted to overthrow the Batista regime in Cuba with a small group of supporters March 14, 1958: Arms embargo implemented during conflict between Batista and Castro forces January 8, 1959: Castro s forces took control of the capital Initially, the United States viewed the revolution positively. This changed when Castro legalized Communism and began executing political opponents. February 1960: Castro entered economic agreement with USSR October 19, 1960: General U.S. embargo of Cuba first imposed Response to the uncompensated nationalization of American-owned oil refineries. Did not include embargo on the provision of food and medicine. 4
U.S.-Cuba Relations & the Embargo U.S.- Cuba relations dramatically changed during several fateful years in the 1950s/1960s: April 14, 1961: U.S. s unsuccessful Bay of Pigs invasion September 4, 1961: Congress passed the Foreign Assistance Act, prohibiting aid to Cuba and authorizing the President to impose a complete trade embargo October 1962: Cuban Missile Crisis February 1962: President Kennedy extended embargo (by proclamation) to include almost all imports of Cuban goods August 3, 1962: Foreign Assistance Act amended to prohibit aid to any country providing assistance to Cuba September 7, 1962: Kennedy extended embargo to include almost all Cuban trade (not food and medicine) July 1963: Cuban Assets Control Regulations ( CACR ) issued 5
The Cuba Embargo: Key Provisions U.S. embargo against Cuba has been a comprehensive and farreaching program, in place for more than a half century Extraterritorial reach to persons subject to U.S. jurisdiction an international flashpoint; led to the enactment of blocking measures in other jurisdictions (Canada, Mexico, the EU) Persons subject includes U.S. persons and their owned or controlled non-u.s. affiliates (e.g., foreign subsidiaries) Key features of CACR: Broad ban on U.S. trade with Cuba (except for some humanitarian trade under licensing/license exceptions) Ban on investment in and other dealings by persons subject with Cuba Property blocking measures Broad travel-related restrictions 6
The Cuba Embargo: Statutory Scheme Trading with the Enemy Act of 1917 ( TWEA ) and Foreign Assistance Act of 1961 are key statutory bases Subsequent legislation sought to codify the embargo (or various aspects thereof) and thereby limit the President s discretion to lift/ease it Cuban Democracy Act of 1992 ( CDA ) Helms-Burton Act of 1996 (Cuban Liberty and Democratic Solidarity (Libertad) Act) Trade Sanctions Reform and Export Enhancement Act of 2000 ( TSRA ) 7
The Cuba Embargo: Statutory Scheme CDA Establishes USG policy of seeking a peaceful transition to democracy and resumption of economic growth in Cuba through careful application of sanctions and support for the Cuban people Examples: food, medicine, medical supplies, telecom services and facilities, assistance to NGOs Prohibition on exports to Cuba by U.S.- owned/controlled firms in third countries and Cuba; no exceptions/licenses Called for President to set strict limits on remittances 8
The Cuba Embargo: Statutory Scheme Helms-Burton Seeks to codify the embargo as in effect on March 1, 1996 Continues to recognize need for assistance or support to democracy-building efforts in Cuba by NGOs, and information exchanges with Cuba Seeks to impose various conditions to lifting embargo Need for a transitional government Satisfactory resolution of property claims by Cuban government Removal of Castros from power Civil remedy (suspended) for persons trafficking in property confiscated by the Cuban government 9
The Cuba Embargo: Statutory Scheme TSRA Imposed prohibition on Administration authorizing travelrelated transactions by general or specific license for travel to, from, or within Cuba for tourist activities. Various Presidential signing statements described provisions in these statutes as precatory, in that they attempt to establish the foreign policy of the United States. 1998 GAO report: President retains under TWEA and CACR a great deal of discretion in making changes to embargo restrictions. Line is not clearly drawn, and remains controversial. 10
II. The Obama Administration s Announcement: Charting a New Course on U.S.-Cuba Relations
Obama Administration s Announcement On December 17, 2014, President Obama announced a policy shift on U.S.-Cuba trade and diplomatic relations, vowing to: Establish diplomatic relations with Cuba; Reopen an embassy in Havana; Review Cuba s designation as a State Sponsor of Terrorism; Empower the Cuban people and support democracy, human rights, and civil society; and Relax U.S. sanctions and export controls on Cuba. Credit: Reuters 12
Amended OFAC and BIS Regulations On January 16, 2015, the Treasury Department s Office of Foreign Asset Control ( OFAC ) and the Commerce Department s Bureau of Industry and Security ( BIS ) amended their regulations to implement the Administration s new Cuba policy. OFAC: Cuban Assets Control Regulations ( CACR ) BIS: Export Administration Regulations ( EAR ) Although the amendments leave most of the embargo intact, there are some key areas of change: Travel Telecommunications Banking Remittances Trade with Cuba s private sector Regulations affecting third-country entities 13
Amended Regulations: Travel The CACR permit travel to Cuba related to 12 categories of activity: E.g. family visits, journalistic activities, educational activities, professional research or meetings, or humanitarian projects Under the amended regulations: Travel in these categories is generally licensed; Many of the 12 categories are defined more broadly; Authorized travelers can bring back to the U.S. $400 worth of Cuban merchandise, including $100 of alcohol and tobacco products Travel for tourism purposes remains prohibited. Credit: Chicago Tribune, Getty Photo 14
Amended Regulations: Telecommunications In the telecom arena, the amended regulations built upon previous easing of restrictions by the Obama Administration. Under the amended CACR, a general license authorizes: The establishment of telecom facilities and infrastructure Transactions with service providers or individuals in order to provide service to individuals in Cuba As for exports, the amended EAR expand existing License Exception Consumer Communications Devices ( CCD ) Authorizes the sale to Cuba of consumer communications devices as well as related software, applications, and hardware Previously, only donation of these items was permitted Part of the Administration s goal to increase Cubans access to communications technology 15
Amended Regulations: Banking Under the amended CACR, financial institutions subject to U.S. jurisdiction can: Process U.S. credit and debit card transactions related to authorized travel in Cuba Open correspondent accounts at Cuban banks to facilitate transactions Remaining prohibitions: Cuban banks cannot open correspondent accounts at U.S. institutions. U.S. banks cannot provide accounts to or for the benefit of Cuba or a blocked Cuban national. 16
Amended Regulations: Remittances Authorized remittances under the amended CACR: Periodic remittances to Cuban nationals: $2,000 per 3- month period (previously: $500) Remittances carried by a traveler to Cuba: $10,000 per trip (previously: $3,000) Unlimited remittances to individuals and independent NGOs to support: Humanitarian projects that directly benefit the Cuban people; Activities of human rights organizations or organizations designed to promote democracy or strengthen civil society; or The development of private businesses, including small farms. Other authorized remittances remained unchanged: Unlimited remittances to religious organizations and close relatives who are Cuban nationals; Emigration-related remittances: $1,000 before recipient obtains visa and $1,000 after. 17
Amended Regulations: Imports Imports from the Cuban private sector The amended CACR permit the importation into the U.S. of goods and services produced by independent Cuban entrepreneurs. The State Department s Section 515.582 List sets forth permissible goods and services by carving out goods that are not eligible for importation by reference to the Harmonized Tariff Schedule: E.g., animal or vegetable products, minerals, vehicles, arms Importers must obtain documentary evidence of the entrepreneur s independent status: E.g., a copy of the license that the Cuban government issues to private businesses Travel-related imports (previously discussed) 18
Amended Regulations: Exports License Exception SCP The amended EAR create License Exception Support for the Cuban People ( SCP ), authorizing the export and reexport to Cuba of certain items without a license: Items to the Cuban private sector: Building materials, equipment, and tools for construction of privately owned buildings (e.g., residences, businesses, places of worship); Tools and equipment for private-sector agricultural activities; and Goods for use by private-sector entrepreneurs. Donations for use in scientific, archaeological, cultural, ecological, educational, historic preservation, or sporting activities. Exports to human rights organizations or NGOs that promote independent activity and strengthen civil society. Items to media personnel engaged in bringing news to the general public. 19
Amended Regulations: Other Changes Commerce Department (BIS) adopted a policy of approval for license applications to export or reexport items to Cuba for environmental protection E.g., renewable energy or energy efficiency goods Note that these items still require a license. Definition of cash in advance This term applies to the required payment and financing terms for exports to Cuba and other permissible dealings. The amended CACR revise this definition to mean payment before transfer of title and control. Previously, the term required payment before shipment. License Exception Gift Parcels and Humanitarian Donations ( GFT ) Expanded to allow consolidated shipments of multiple parcels of qualified gifts or donations 20
Amended Regulations Affecting Third-Country Entities U.S.-owned or controlled entities in foreign countries can now provide goods and services to Cuban nationals located outside of Cuba Resolves some of the controversy over the extraterritorial reach of the Cuba sanctions Does not authorize the provision of goods or services for subsequent export/reexport to Cuba The amended CACR create a general license that unblocks accounts of Cuban nationals who have taken up permanent residence outside of Cuba Documentation requirements to show residency have been relaxed Persons subject to U.S. jurisdiction can now sponsor or participate in conferences or similar events in third countries, as long as they do not relate to tourism in Cuba. 21
Political Response Congressional response to Administration s Cuba policy shift: Sen. Rubio (R-FL) characterized the changes as appeasing the Castro brothers and vowed to review whether the Administration s actions are prevented by statute Officials from the State, Treasury, and Commerce Departments faced tough questioning at House and Senate Congressional hearings Even some members who support the policy change were dismayed by the fact that the White House did not seek Congressional input However, many members recognize that the embargo has failed and see potential opportunities from normalization e.g., Sen. Flake (R-AZ) long supporter of lifting travel ban U.S. Chamber of Commerce welcomed the announcement Heralded the opportunity for free enterprise to flourish 22
Limits on Executive Power to Modify Embargo How far can the Administration can go to lift the embargo? Statutes (CDA, Helms-Burton, TSRA) purport to restrict Presidential discretion to modify the embargo General view that President retains some discretion based on: President s Constitutional power (Art. II) to conduct foreign affairs Statutory codification of the embargo, which also codified the President s licensing discretion articulated in sanctions regulations Stated purposes of these statutes include support for the Cuban people, promotion of democracy, and information exchange -- new regulations fit within these goals There are some explicit statutory limitations: Tourism travel is generally off limits (TSRA) Exports by U.S.-owned or controlled entities in third countries to Cuba generally cannot be licensed (CDA) U.S. persons and agencies may not knowingly make a loan, extend credit, or provide other financing for transactions involving property confiscated by the Cuban government (Helms-Burton) President acknowledges that fully lifting the embargo requires Congressional action 23
Cuban Response Shortly after amended regulations were released, Raúl Castro made a speech setting out various demands: Full lifting of the embargo Return of U.S. base at Guantanamo Bay Compensation for human and economic damage from the embargo Many viewed this as an attempt to appease Cuban hardliners. Despite posturing, diplomatic talks have continued. 24
III. Prospects for the Future
Developments Since Regulatory Changes Diplomatic Cuba s designation on State Sponsor of Terrorism List remains a point of contention in negotiations, reportedly delaying opening embassy. This week, presidents Obama and Castro will both attend the Summit of the Americas. Trade March 24: OFAC removed 45 Cuba-related entities from its SDN List Mostly out-of-date entries: deceased persons, sunken ships, bankrupt companies Cuba s foreign trade minister: Cuba will view positively U.S. trade and investment, but U.S. businesses will not receive preferential treatment. New businesses entering Cuba: Mastercard Amex Kayak Airbnb As questions arise, we expect more agency guidance on new regulations Credit: Reuters 26
Questions? kstrosnider@cov.com jholmes@cov.com