The Impact of the Third Round of Regulatory Changes to the US Embargo on Cuba: Licenses Now Available for Products to Support Construction Projects in Cuba
By Doug Jacobson, Glen Kelley and Michael Burton, Jacobson Burton Kelley, PLLC
On January 27, 2016, the Office of Foreign Assets Control (OFAC) and the Bureau of Industry and Security (BIS) published a third round of coordinated amendments to the Cuban Assets Control Regulations (CACR) and the Export Administration Regulations (EAR). The Federal Register notices published by the agencies can be found here (OFAC) and here (BIS).
These regulatory changes are intended to further implement President Obama’s policy of seeking to thaw the longtime stalemate in political and economic relations between the US and Cuba. However, because most aspects of the US travel, trade and financial embargo of Cuba is governed by US law, the Obama Administration remains limited in the regulatory "tweaks" to the embargo, absent further action by the US Congress.
The recent changes, described below, build on the amendments to the U.S. regulations implementing the Cuban embargo that were made in 2015, including:
- The January 2015 amendments to the CACR and EAR regulations expanding the scope of the 12 authorized categories of travel to Cuba and authorizing certain trade and financial transactions between the US and Cuba;
- The July 2015 removal by the State Department of Cuba from the list of State Sponsors of Terrorism and the corresponding increase by in the de minimis threshold for reexports to Cuba of "items subject to the EAR" from 10% to 25%; and
- The September 21, 2015 amendments to the CACR and EAR authorizing certain business activities and physical presence by US companies in Cuba, expanding the scope of EAR License Exceptions SCP (Support for the Cuban People) and AVS (Aircraft, Vessels and Spacecraft).
Major Changes to the US Embargo on Cuba Resulting from the January 27, 2016 BIS and OFAC Amendments
The OFAC and BIS regulations issued on January 27, 2016 made a number of changes to the restrictions on traveling to and doing business in Cuba. While some of the changes have a very limited scope some of the changes are more much more significant and could open up a wide range of new business with Cuba, assuming a counterparty in Cuba can be found.
The following is an overview of the major changes made by OFAC and BIS to the regulations implementing the US embargo on Cuba.
A. Exports and Reexports Involving Cuban Infrastructure and Other Projects Now Subject to Case-By-Case Licensing Policy
The most significant change made by the January 27, 2016 amendments was the amendment by BIS of section 746.2 of the EAR in order to establish a case-by-case review policy for exports and reexports of "items" for use in construction of various infrastructure products in Cuba, such as facilities for treating public water supplies, facilities for supplying electricity or other energy to the Cuban people, public transportation projects, food processing, public health and sanitation, sports and recreation facilities, and other infrastructure that directly benefits the Cuban people. This is particularly important given Cuba's infrastructure needs. The fact that BIS may issue licenses for transactions with Cuban state-owned enterprises is significant given the Cuban Government's pervasive role in the Cuban economy.
This new case-by-case licensing policy also now authorizes exports and reexports to wholesalers and retailers of items for domestic consumption by the Cuban people. While the term "item" is not defined, this should allow a wide range of consumer and other products to be exported from the US to Cuba as long as a BIS license is obtained in advance.
It is important to note that these changes only authorize the export of goods and software associated with these infrastructure projects. The provision of services by US companies and persons involving such projects in Cuba, such as engineering and architectural services, remain prohibited by OFAC.
In addition, a general policy of denial continues to apply to exports and reexports of items from the US for use by Cuban state-owned enterprises, the Cuban military, agencies, or other organizations of the Cuban government that primarily generate revenue for the state, including those engaged in tourism and those engaged in the extraction or production of minerals or other raw materials.
B. Exports and Reexports Now Subject to General Policy of License Approval
BIS also amended section 746.2 of the EAR to add a general policy of approval for certain exports and reexports previously subject to case-by-case review and a policy of case-by-case review for exports and reexports of items not eligible for license exception to meet the needs of the Cuban people.
Specifically, the January 27, 2016 rule revises the licensing policy from possible approval on a case-by- case basis to a general policy of approval for exports and reexports of the following items to Cuba:
- Telecommunications-related items that would improve communications to, from, and among the Cuban people (to the extent not eligible for license exception SCP);
- Parts and components necessary to ensure the safety of civil aviation and the safe operation of commercial aircraft engaged in international air travel, including the export or reexport of such aircraft leased to state-owned enterprises (this includes cargo aircraft); and
- Agricultural products that are outside the scope of agricultural commodities as defined in Part 772 of the EAR, such as insecticides, pesticides and herbicides, as well as agricultural commodities not eligible for License Exception Agricultural Commodities (AGR).
C. Changes Made to Financing of Certain Export Transactions Involving Cuba
OFAC's amendments to the CACR remove the long-standing cash in advance payment requirement and therefore US banks are now authorized to finance authorized exports and reexports to Cuba, except for agricultural commodities. As a result, US banks are now authorized to issue, advise, negotiate, pay or confirm letters of credit, including those issued by a Cuban bank.
OFAC remains prohibited by US law to authorize payment and financing terms for the export and reexport to Cuba of agricultural commodities and agricultural items, which remain subject to the cash in advance payment terms.
D. Limited Expansion of Certain Authorized Travel Activities to Cuba
OFAC made a number of "tweaks" to the existing 12 categories of authorized travel to Cuba, including changes made to eliminate some of the unintended consequences resulting from the September 21, 2015 amendments.
- Temporary Sojourn in Cuba by Aircraft and Vessel Crew Members. OFAC has authorized by general license personnel, such as crew members, who are operating vessels or aircraft to engage in travel-related and other transactions in Cuba in order to facilitate the temporary sojourn of aircraft and vessels authorized by BIS in connection with the transportation of OFAC authorized travelers between the US and Cuba.
- Movies and Television Programs. OFAC has authorized travel-related and other transactions directly incident to professional media or artistic productions for exportation, importation, or transmission, including the filming or production of media programs (such as movies and television programs); music recordings; and the creation of artworks in Cuba by persons that are regularly employed in or have demonstrated professional experience in a field relevant to such professional media or artistic productions.
- Organizing Professional meetings in Cuba. OFAC authorized by general license travel-related and other transactions to organize professional meetings or conferences in Cuba. The existing general license authorizes only attendance at such meetings or conferences.
- Scope of Humanitarian Projects Expanded. OFAC expanded the list of authorized humanitarian projects to include disaster preparedness and response.
E. Air Carrier Services to Cuba
In anticipation of the operation of commercial flights to Cuba later this year, OFAC authorized by general license the entry into blocked space, code-sharing, and leasing arrangements to facilitate the provision of air carrier services including the entry into such arrangements with Cuban nationals.
While some of the changes to US licensing policy on transactions with Cuba that went into effect on January 27, 2016 are significant in scope, many challenges remain in doing "normal" business with Cuba. Despite early enthusiasm many US companies have been frustrated by the extremely limited business possibilities in Cuba given that much of Cuba's economy is owned and controlled by the Cuban Government and individuals in Cuba face significant obstacles on engaging in business transactions directly with US companies, let alone having access to US financing or other authorized credit facilities.