On March 16, the Treasury Department’s Office of Foreign Assets Control (OFAC) published a final rule that further facilitates travel to Cuba, authorizes additional types of financial transactions and allows companies to have a greater business presence on the island. The latest changes represent yet another small step towards normalization, building upon four past rounds of regulatory amendments that began over a year ago.
While the president cannot unilaterally abolish the Cuban Assets Control Regulations (CACR) sanctions regime absent congressional action, over the past 16 months he has used his authority to normalize economic and political relations between the two countries as much as possible through executive action. The latest amendments were announced days before President Obama’s historic trip to Cuba – the first time a sitting U.S. president visited the island in 88 years. Despite the administration’s inability to remove all sanctions without Congressional approval, it made the president’s intentions to push the envelope as much as possible clear prior to his trip, saying that the visit will be aimed at rendering the normalization process “irreversible.”
An exhibition game between Major League Baseball’s Tampa Bay Rays and the Cuban national team, and a Rolling Stones concert in Havana were two events that suggest many Cubans and Americans support the president’s goal of reconciliation.
This most recent round of regulatory changes includes the elimination of the requirement that people-to-people educational travel be conducted under the auspices of an organization that sponsors such exchanges. This means that U.S. persons can now travel to Cuba without a specific license, provided that each traveler engages in a full-time schedule of educational exchange activities and maintains records of those activities.
For businesses, the new regulations include a number of specific authorizations called “general licenses.” U.S. companies that are providing approved services to Cuba (including telecommunications, mail, cargo, travel, and carrier services) can now establish and maintain a business presence on the island. OFAC also clarified that authorized exporters can establish a physical presence to assemble items they have exported to Cuba. With respect to financial transactions, certain U-turn payments—payments that originate in a non-U.S. financial institution and pass through the U.S. financial system before being transferred to a bank outside the United States—are authorized. Banking institutions are also authorized to open and maintain accounts solely in the name of a Cuban national located in Cuba in order to make and receive payments related to authorized transactions.
In addition to these general licenses, U.S. persons can also apply for a specific license to engage in activities that are not already expressly permitted by the regulations. The administration’s pro-normalization policy and the resulting trend towards increased political and business relations between the U.S. and Cuba means that, absent a sudden policy reversal, OFAC and the Commerce Department’s Bureau of Industry and Security, the other regulatory body responsible for enforcing the embargo, will generally look for reasons to approve applications for specific licenses that are related to trade with Cuba.
So if there is a reasonable argument as to why you or your company should be allowed to engage in a transaction involving Cuba, and the transaction will support the Cuban people or encourage the private sector in Cuba, the specific license option should be seriously considered. To obtain such a license, you must submit a detailed license application to OFAC outlining the proposed transaction.
Doreen M. Edelman is a shareholder in Baker Donelson’s Washington, D.C. office and co-leader of the firm’s Global Business Team. Andrew Bisbas is an attorney in Baker Donelson’s Washington, D.C. office and member of the firm’s Commercial Transactions Group and Global Business Team.