President Trump Shifts the U.S. Policy Towards Cuba

As we have previously reported on the growing fear that the Trump Administration would roll back President Barack Obama’s plan to normalize relations with Cuba. Then-candidate Donald Trump was calling President Obama’s deals with Cuba “one-sided” and beneficial “only [to] the Castro regime.” Last week Friday, at an event at the Manuel Artime Theater in Miami, President Trump officially announced his Administration’s new public policy towards Cuba and fulfilled a campaign promise.

Cuban FlagPresident Trump’s speech culminated in the issuance of a National Security Presidential Memorandum and an accompanying White House Fact Sheet on the U.S. Policy toward Cuba.  In sum, President Trump’s directive:

(a)  Ends economic practices that “benefit the Cuban government” by prohibiting most economic activities with the Cuban military conglomerate, Grupo de Administración Empresarial (“GAESA”). This change is most likely to affect the hotel and tourism industry sectors, since these are the industries said to be largely controlled by GAESA. A list of companies that will be on the “blacklist” will be issued by the State Department at a later date.

(b)   Adheres “to the statutory ban on tourism to Cuba,” by amending regulations related to educational travel (i.e., by ending individual people-to-people travel) and enforcing the strict record keeping requirements related to travel to Cuba.

(c)   Opposes any efforts in the United Nations or other international forums to lift the embargo on Cuba.

(d)   Supports the expansion of internet services and free press in Cuba by convening a task force that will work with non-governmental organizations and private sector entities to examine the challenges and opportunities in those areas.

(e)  Keeps in place the Obama Administration’s elimination of the “Wet Foot, Dry Foot” policy.

(f)  Ensures that engagement with Cuba in general is advancing the interests of the United States.

As explained in the new FAQs issued by the U.S. Department of the Treasury, the policy changes will not go into effect until the Treasury Department and the U.S. Department of Commerce have finalized their new regulations. Importantly, the new Cuba policy changes will not have retro-active effect. Those travel arrangements and commercial engagements that were in place prior to the issuance of the upcoming regulations will not be affected.

Al Cardenas, who heads the Latin America practice group at Squire Patton Boggs and previously served as the former Chairman of American Conservative Union and former Chairman of the Florida GOP, explains:  “Despite the emotional setting and rightful remembrance of the struggles of the Cuban people found in President Trump’s speech, which was focused on a Cuban exile audience, President Trump’s executive action preserves many of the changes made during President Obama’s Administration (some of which were outlined in President Obama’s 2014 Speech). For example, the respective embassies in Washington and Havana will remain open, the U.S. licenses issued to airlines and cruise line companies have been kept, efforts to expand direct telecommunications and internet access will continue, and the additional categories for travel to Cuba for the most part remain in place. While one-step back is the prohibition on U.S. travelers from staying at government-owed facilities, this should be a boon to the family-owned B&B’s and other rentals on the island. It remains to be seen whether there will be a significant drop off in tourist travel to the island.”

Viewed as a whole, President Trump is tightening some areas where improved economic relations with the United States could have benefitted some auspices of the Cuban Government.

This post was written by Beatriz E. Jaramillo and  Stacy A. Swanson of Squire Patton Boggs (US) LLP.

Havana Hold Your Hand: Reaching Out to Cuban Entrepreneurs

Sheppard Mullin Law Firm

New regulations on Cuba enter into force today, only 29 days after President Obama promised them. The liberalized provisions focus on support for private sector actors in Cuba.

As we described here, the President announced on December 17, 2014 that his administration would release regulations liberalizing the rules on travel, financial services, remittances, and other areas. Today those provisions are a reality. Both the U.S. Departments of Commerce and Treasury issued regulations today. The Commerce Federal Register notice is available here; OFAC’s notice is available here.

CubaAs a result, the United States is now “one step closer to replacing out-of-date policies” on Cuba, said Treasury Secretary Jacob Lew. Specifically, the new regulations include these provisions:

  • New general license for exports of goods to entrepreneurs. The newly created License Exception SCP (for “Support for the Cuban People”) includes specific authorization to export to Cuba the following items so long as the items are designated as EAR99 or are controlled on the U.S. Commerce Control List for antiterrorism reasons only:

(1) Building materials, equipment, and tools for use by the private sector;

(2) Tools and equipment for private sector agricultural activity; or

(3) Tools, equipment, supplies, and instruments for use by private sector entrepreneurs.

  • General license for telecommunication equipment. License Exception SCP also permits export of items for telecommunications, including access to the Internet, use of Internet services, infrastructure creation and upgrades.

  • Financial transactions. Accepting payment for authorized exports is permitted. Under existing OFAC regulation, all transactions ordinarily incident to lawful exports are authorized.

  • Travel to Cuba: Transactions incident to travel within 12 categories are permitted, including travel for educational activities (including people-to-people travel), journalistic and religious activities, professional meetings, and humanitarian projects. The travel must fulfill all the explicit provisions of the general licenses set forth in the regulations. Travel for tourist activities remains prohibited by statute, and will not be permitted under these general licenses.

  • Travel services: Travel agents and airlines may provide authorized travel and carrier services.

  • Credit and Debit Cards: U.S. credit and debit cards may be used in Cuba for travel-related and other transactions, and U.S. financial institutions are permitted to enroll merchants and process such transactions.

  • Per Diems: The per diem limitation on authorized travelers’ spending in Cuba has been eliminated.

  • Imports: Authorized travelers may import into the United States up to $400 worth of goods from Cuba (including up to a total of $100 in alcohol or tobacco products).

  • Microfinancing: Microfinancing projects for humanitarian purposes are permitted, so long as they do not violate the existing ban on certain loans involve Cuban-government confiscated property.

  • Family remittances:  Remittances of up to $2,000 in any consecutive three-month period are now permitted.  Authorized travelers to Cuba may carry up to $10,000 in total remittances. Additionally, banking institutions, including U.S.-registered brokers or dealers in securities and U.S.-registered money transmitters, are authorized to provide services in connection with the collection or forwarding of remittances to Cuba.

  • Correspondent Accounts: U.S. depository institutions are authorized to open correspondent accounts at Cuban financial institutions to facilitate the processing of authorized transactions.

  • “Cash in Advance” Interpretation: The regulatory interpretation of “cash in advance” is revised from “cash before shipment” to “cash before transfer of title or control” to allow expanded financing options for authorized exports to Cuba.

  • Telecommunications: Transactions to provide commercial telecommunications services that link third countries to Cuba and within Cuba are generally authorized.

  • Transactions with Cuban Nationals Outside of Cuba: U.S.-owned or -controlled entities in third countries may provide, with some limitations, services (and goods) to Cuban nationals in third countries.  The accounts of Cuban nationals who have permanently relocated outside of Cuba are unblocked.

  • Insurance: A new interpretation permits the provision of health insurance, life insurance, and travel insurance and related services to authorized travelers.

Some critics in Congress have questioned the legality of the President’s actions, citing the myriad statutes that constitute the Cuban embargo (including things like the Trading with the Enemy Act, the LIBERTAD Act, and the Cuban Democracy Act). But all the new provisions published today appear carefully crafted to stay within the President’s powers, and not to fall afoul of those many statutory boundaries of the decades-old embargo. For more fundamental change, we must await legislative action.