Wednesday, December 17, 2014

Business with Cuba - What's Legal and What's Not?

Cuban cigarBy now, you've likely seen the many news stories about the BIG announcement made today by our President. The news release starts by stating... "Today, the United States is taking historic steps to chart a new course in our relations with Cuba and to further engage and empower the Cuban people." Whatever your personal and/or political beliefs are, this is big news and potentially big opportunity for those who heed it. The legality of importing Cuban cigars is one of the many changes discussed below. Read on for the full details.


PRESIDENTS ANNOUNCEMENT - Summarized from the White House Fact Sheet found here: The key changes President Obama discussed relating to TRADE are (read the full fact sheet for all other changes):
  1. General licenses will be made available for all authorized travelers in the following existing categories: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.
  2. Authorizing expanded commercial sales/exports from the United States of certain goods and services-
    • Items that will be authorized for export include certain building materials for private residential construction, goods for use by private sector Cuban entrepreneurs, and agricultural equipment for small farmers as well as the commercial sale of certain consumer communications devices, related software, applications, hardware, and services, and items for the establishment and update of communications-related systems.
  3. Licensed U.S. travelers to Cuba will be authorized to import $400 worth of goods from Cuba, of which no more than $100 can consist of tobacco products and alcohol combined. (I have handled several penalty cases from OFAC for violations of the embargo by persons importing Cuban cigars... this will no longer be an issue if it's less than $100 worth! Remember, this is for PERSONAL USE).
Below, I'll discuss what the U.S.'s current policy is and what imports and exports are authorized.

CURRENT U.S. POLICY

The Office of Foreign Assets Control (OFAC) has already set up a page detailing FAQ's on the current sanctions, and what's to come. See more here and subscribe for IMMEDIATE email updates.

Of KEY importance, NOTHING will change as of TODAY. It will be a process (and not an easy one as Congressional approval is necessary to change the current law). OFAC explains that here (which is on the top of OFAC's website on Cuba Sanctions):
Q. How will OFAC implement the changes to the Cuba sanctions program announced by the President on December 17, 2014? Are the changes effective immediately? A. OFAC will implement the Treasury-specific changes via amendments to its Cuban Assets Control Regulations. The Department of Commerce will implement the remainder of the changes via amendments to its Export Administration Regulations. OFAC expects to issue its regulatory amendments in the coming weeks. None of the announced changes takes effect until the new regulations are issued.
OFAC has a 21 page "overview of sanctions" providing guidance on the Cuban Assets Control Regulations, found in 31 C.F.R. Part 515 (you can read the lengthy regulations here.  Notice you need a "LICENSE" to travel to Cuba, sending money to Cuba is regulated, and there are General Prohibitions on exports and imports. Specifically,
"The Regulations prohibit any person subject to U.S. jurisdiction from dealing in any property in which Cuba or a Cuban national has or has had any interest. Under the Regulations, “property” is very broadly defined and includes such things as contracts and services. For example, unless authorized, persons subject to U.S. jurisdiction (including U.S. overseas subsidiaries) may not purchase Cuban cigars in third countries; may not sign a contract with a foreign firm if the contract terms include Cuba-related provisions, even if those provisions are contingent upon the lifting of the embargo; and may not provide accounting, marketing, sales, or insurance services to Updated January 24, 2012 An Overview of the Cuban Assets Control Regulations a Cuban company or to a foreign company with respect to the foreign company’s Cuba-related business."
EXPORTS TO CUBA CURRENTLY

Currently, "with certain exceptions, no products, technology, or services may be exported from the United States to Cuba or a Cuban national, either directly or through third countries, such as Canada or Mexico, without a license from OFAC."

IMPORTS FROM CUBA CURRENTLY
"Importing from Cuba requires dealing in property in which Cuba or a Cuban national has an interest, and is therefore prohibited. The Regulations also include a specific prohibition on importing and dealing in merchandise that is of Cuban origin, that has been derived from Cuba-origin materials, or that has been located or transported through Cuba. As a result, no such merchandise (including souvenirs) may be imported into the United States either directly or through third countries such as Canada or Mexico absent a license from OFAC. The only exception to this prohibition is for “information or informational materials,” as defined in § 515.332 of the Regulations. Examples include publications, recorded music, and certain artwork."
I fondly recall a former case where U.S. Customs and Border Protection (CBP) questioned whether or not my clients product derived from Cuban seed, after lab tests, we were able to prove it did not... but, had it, penalties and other enforcement action would have taken place.

In short, new changes are on the horizon, BUT, everyone can't book their flights to Cuba just yet, nor can you import your Cuban cigars for commercial use. Stay tuned. If you have any specific questions related to trade with Cuba, email me at jdiaz@bplegal.com.

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