Cuba – Page 2 – Duane Morris on Cuba, Puerto Rico & the Caribbean

December 18, 2015December 18, 2015 by Jose A. Aquino

U.S. AND CUBA TO RESUME REGULARLY SCHEDULED AIRLINE FLIGHTS

On December 17, the United States and Cuba announced their agreement to restore regularly scheduled commercial airline service between the two countries for the first time in more than a half-century. The new arrangement will continue to allow charter operations which currently operate from several U.S. cities.

According to Thomas Engle, Deputy Assistant Secretary for Transportation Affairs at the U.S. State Department, the agreement allows 110 round-trip flights per day on U.S. carriers to Cuba, including 20 daily flights to Havana. The remaining 90 flights will be allocated throughout nine other international airports in Cuba. It is not yet clear when the regular flights will begin.

Several U.S. airlines, including American, Delta, JetBlue and United announced plans to request approval to begin scheduling regular flights to Cuba. Airlines will have to apply for permission from U.S. regulators and submit specific routes between the two countries. Miami is expected to be the major hub for flights to Cuba. Direct flights are also expected from New York and Tampa.

The agreement supports the Obama Administration’s policy of promoting human rights and political freedom on the island nation through people-to-people contacts. “We continue to have differences with the Cuban government, but we raise those issues directly, and we will always stand for human rights and the universal values that we support around the globe,” President Obama said in a written statement.

Similarly, the State Department reinforced the President’s policy in its statement announcing the agreement: “While U.S. law continues to prohibit travel to Cuba for tourist activities, a stronger civil aviation relationship will facilitate growth in authorized travel between our two countries- a critical component of the President’s policy toward Cuba.”

The U.S. trade embargo continues to prohibit travel to Cuba for general tourist activities. U.S. travelers still must meet at least one of 12 permitted criteria to visit the island.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, and a member of the Duane Morris Cuba Business Group. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

November 3, 2015November 4, 2015 by Jose A. Aquino

Exporting Agricultural Goods to Cuba: Who do I sell to?

The newly relaxed U.S. regulatory controls for the export of goods to Cuba have been scrutinized by the media. Not much, however, has been said about Cuba’s framework for importing goods. Understanding the Cuban government’s regulatory framework is a first step for U.S. companies looking to do business in Cuba.

Generally, U.S. firms will not deal directly with the end user of the exported product. For example, exporting agricultural products is not about trading with independent farmers or businesses in the island but, instead, about negotiating and dealing with the Cuban government through the government-run food trading company known as the Empresa Comercializadora de Alimentos (ALIMPORT).

ALIMPORT is the Cuban government’s procurement agency for U.S. agricultural products. It is the only approved importer for U.S. food products such as wheat, fruits, vegetables and meat. U.S. firms must negotiate with, and deliver goods to, ALIMPORT, who then takes control of the imports at the Cuban point of entry, manages distribution throughout Cuba and coordinates payments. The United States Department of Agriculture’s report on Cuba notes that “the key difference in exporting to Cuba, compared to other countries in the region, is that all U.S. agricultural exports must be channeled through one Cuban government agency, ALIMPORT.”

October 20, 2015October 20, 2015 by Duane Morris

Intellectual Property and Cuba

Duane Morris partner David N. Feldman published a blog post discussing the current state of intellectual property protection in Cuba in light of the normalization of relations between the United States and Cuba.

To read the full text of the post, please visit David’s blog.

October 9, 2015 by Jose A. Aquino

BILL TO EXPAND AGRICULTURAL TRADE WITH CUBA INTRODUCED IN HOUSE

On Tuesday, U.S. Rep. Rick Crawford, R-Ark., introduced legislation aimed at making it easier to export American agricultural goods to Cuba. The bill, H.R. 3687 or the Cuba Agricultural Exports Act, would repeal a law that prohibits financing the sales of U.S. agricultural products to Cuba and would give producers access to Department of Agriculture marketing programs that help the U.S. compete in foreign markets.

Currently, Cubans who want to buy U.S. agricultural products have to pay cash upfront. American farmers blame the upfront payment requirement for the lack of trade with Cuba. The farmers claim that without credit they cannot compete with countries like Vietnam and Brazil, who can extend credit to Cuba.

The bill also allows investments in Cuban agricultural businesses not affiliated with the Cuban government. All of Cuba’s agricultural imports from the United States are controlled by the state-owned entity Alimport, which purchases products for Cubans. Crawford’s bill upholds the cash-upfront requirement for goods sold to Alimport or any other entity controlled by the Cuban government. The bill, however, would allow limited investment, if U.S. officials certify that the entities are privately owned and not controlled by the Cuban government. “We’re trying to work outside of the realm of Alimport because that is a regime-controlled entity. What we want to do is facilitate private-sector investment and be able to access that market,” Crawford said.

Representative Crawford further stated:

“While the Administration has called on Congress to repeal the embargo entirely, I think the correct approach is to make cautious and incremental changes to current Cuba policies in ways that benefit the United States. The Cuba Agricultural Exports Act would allow our producers to compete on a level playing field in the Cuban market, a significant opportunity for American farmers and ranchers. Not only is it estimated that Cuba imports around 80 percent of its food supply, but the US also enjoys an inherent advantage due to our close geographic proximity and state of the art production and food distribution infrastructure. I believe that agriculture trading partnerships with Cuba will help build a foundation of goodwill and cooperation that will open the door to long-sought reforms in the same the way that American influence has brought reform to other communist states.”

House Agriculture Committee Chairman Michael Conaway, R-Texas, who cosponsored the bill said:

“Many in the agricultural industry have expressed a strong interest in increasing exports to Cuba due to the nation’s potential growth as a market for U.S. agricultural products. I appreciate Rick Crawford’s leadership on this bill—especially his efforts at reaching consensus with various stakeholders on this important issue.”

A copy of the bill can be found by clicking here.

September 18, 2015September 22, 2015 by Jose A. Aquino

OBAMA EASES TRAVEL AND TRADE RESTRICTIONS WITH CUBA

The Obama administration announced wide-ranging changes to loosen travel, commerce and investment restrictions on Cuba. The new rules allow American companies to open locations and hire workers in Cuba. U.S. companies will be allowed to establish subsidiaries or joint ventures as well as open offices, stores and warehouses in Cuba. Additionally, the new rules will expand telecommunications services, facilitate financial transactions between the two countries, remove limits on the amount of money that can be brought to Cuba, and allow “certain persons” to open and maintain bank accounts in Cuba.

The changes will take effect when the regulations are published in the Federal Register on Monday, September 21, 2015, on the eve of Pope Francis’ visit to Washington. The Pope, who is scheduled to visit Cuba Sept. 19-22, has been a central figure in establishing the reconciliation between the United States and the island nation.

Jacob J. Lew, the Treasury secretary, said “Today’s announcement underscores the Administration’s commitment to promote constructive change for the Cuban people. These regulatory changes build on the revisions implemented earlier this year and will further ease sanctions related to travel, telecommunications and internet-based services, business operations in Cuba, and remittances,”

Commerce Secretary Penny Pritzker said, “The regulations published today are designed to support the emerging Cuban private sector and bring us one step closer to achieving President Obama’s historic policy goals. These actions build upon previous Commerce regulatory changes, and will ease travel restrictions, enhance the safety of Americans visiting the country, and promote more business opportunities between U.S. and Cuban companies. In addition to expanding our commercial engagement with the Cuban people, these additional adjustments have the potential to stimulate long overdue economic reform across the country.”

The revisions will be administered by Treasury’s Office of Foreign Assets Control (OFAC) and Commerce’s Bureau of Industry and Security (BIS). To see the Treasury regulations, which can be found at 31 Code of Federal Regulations (CFR), part 515, click here. To see the Commerce regulations, which can be found at 15 CFR parts 740, 746, and 772, click here.

The Department of Treasury summarized the revised regulations as follows:

Travel –

Facilitating authorized travel and commerce, increasing contact between Americans and Cubans, and supporting civil society in Cuba:

Transportation by vessel of authorized travelers – between the United States and Cuba only and without stops in third countries – will be authorized by general license. Certain related lodging services aboard vessels used for such travel will also be authorized.
License Exception Aircraft, Vessels, and Spacecraft (AVS) will authorize temporary sojourns to Cuba of certain categories of vessels. Eligible categories of vessels are cargo vessels for hire for use in the transportation of items; passenger vessels for hire for use in the transportation of passengers and/or items; and recreational vessels that are used in connection with travel authorized by the Treasury.
License Exception AVS will authorize aircraft on temporary sojourn to remain in Cuba for up to 7 consecutive days and authorizes vessels on temporary sojourn to remain in Cuba for up to 14 consecutive days.
Close relatives will be allowed to visit or accompany authorized travelers for certain additional activities. In the January changes, OFAC permitted close relatives to join visits related to official government business and certain educational activities, and to visit additional family members residing in Cuba. Close relatives now also will be allowed to visit or accompany authorized travelers for additional educational activities, journalistic activity, professional research, and religious activities, as well as activities related to humanitarian projects and activities of private foundations or certain research or educational institutes. For purposes of this provision, a close relative is defined as someone related to a person by blood, marriage, or adoption – and who is no more than three generations removed from that person or a common ancestor with that person.
All authorized travelers will be allowed to open and maintain bank accounts in Cuba in order to access funds for authorized transactions while in Cuba.

Telecommunications & Internet-Based Services –

Enhancing the free flow of information to, from, and within Cuba, and better providing efficient and adequate telecommunications services between the United States and Cuba:

Persons subject to U.S. jurisdiction will be allowed to establish a business presence in Cuba, including through joint ventures with Cuban entities, to provide certain telecommunications and internet-based services, as well as to enter into licensing agreements related to, and to market, such services.
Persons subject to U.S. jurisdiction will be allowed to import Cuban-origin mobile applications into the United States and to hire Cuban nationals to develop them.
An existing authorization for the provision of services related to certain consumer communications devices exported to Cuba will be expanded to authorize services related to additional types of items authorized by Commerce, and to add training related to the installation, repair, or replacement of those items.
License Exception Consumer Communications Devices (CCD) will no longer be limited to sales or donations. This change to License Exception CCD is intended to support other types of transactions, such as leases and loans of eligible items for use by eligible end-users.

Commercial and Financial Transactions –

Refocusing sanctions so they do not prevent day-to-day transactions by Cuban individuals who are outside of Cuba:

All persons subject to U.S. jurisdiction will be allowed to provide goods and services to individual Cuban nationals located outside of Cuba, provided there is no commercial exportation of goods or services to or from Cuba.
Banking institutions will be able to open and maintain accounts for Cuban individuals for use while the Cuban national is located outside of Cuba, and to close such accounts.

Physical Presence and Operations in Cuba –

Facilitating certain authorized activities involving Cuba:

Persons subject to U.S. jurisdiction engaging in the following categories of authorized activities will be allowed to establish and maintain a physical presence, such as an office, retail outlet, or warehouse, in Cuba: news bureaus; exporters of certain goods authorized for export or reexport to Cuba by Commerce and OFAC, such as agricultural products and materials for construction or renovation of privately-owned buildings; entities providing mail or parcel transmission services or certain cargo transportation services; providers of telecommunications or internet-based services; entities organizing or conducting educational activities; religious organizations; and providers of carrier and certain travel services. These individuals and entities will also be authorized to employ Cuban nationals, open and maintain bank accounts in Cuba, and employ persons subject to U.S. jurisdiction in Cuba.

Support for the Cuban People –

Improving living conditions, strengthening civil society, and supporting independent economic activity by the Cuban people:

License Exception Support for the Cuban People (SCP) will authorize certain exports and reexports of items to Cuba for use in establishing, maintaining, and operating a physical presence in Cuba. Eligible end-users of the items include certain persons providing telecommunications or internet-based services; establishing telecommunications facilities; providing travel or carrier services; organizing or conducting educational activities; or transporting authorized items between the United States and Cuba.
License Exception SCP will no longer be limited to sales or donations. This change to License Exception SCP is intended to support other types of transactions, such as leases and loans of eligible items for use by eligible end-users.
Certain temporary reexports from a foreign country to Cuba will be authorized by License Exception SCP when the items are for use in scientific, archeological, cultural, ecological, educational, historic preservation, sporting activities, or in the traveler’s professional research and meetings. Previously, this provision was limited to temporary exports by persons departing the United States.
Certain commodities and software for use in software development may be exported or reexported to eligible end-users in Cuba pursuant to License Exception SCP.
License Exception SCP will authorize temporary exports and reexports to Cuba of additional categories of items, including certain tools of trade to install, service, or repair items; and certain commodities and software for exhibition or demonstration.

Remittances –

Empowering Cubans with opportunities for self-employment, and in turn strengthening independent civil society:

The limits on donative remittances to Cuban nationals other than prohibited Cuban Government or Cuban Communist Party officials, currently set at $2,000 per quarter, will be removed entirely. The limits on authorized remittances that individuals may carry to Cuba, previously $10,000 for persons subject to U.S. jurisdiction and $3,000 for Cuban nationals, will also be removed entirely.
The unblocking and return of remittances that were previously blocked because they exceeded the then-applicable caps on periodic remittances, and of certain previously blocked funds transfers, will be allowed.
Depository institutions will be allowed to maintain accounts for certain Cuban nationals present in the United States in a non-immigrant status, and will no longer be required to block such accounts if not closed before the Cuban national’s departure. Access to such accounts will be limited to while the Cuban national is lawfully present in the United States, although the account may remain open while the Cuban national is not in the United States. The $250 monthly limit on payments from previously blocked accounts held in the name of such Cuban nationals will be removed to more adequately allow access to funds for living expenses.
Remittances from Cuba and from Cuban nationals in third countries to the United States will be authorized by general license, and financial institutions will be allowed to provide related services.
An expanded general license also will authorize additional remittances to Cuban nationals in connection with the administration of estates. This provision complements another general license authorizing all transactions incident to the administration and distribution of the assets of estates in which a Cuban national has an interest.

Legal Services –

Updating the legal services provisions:

OFAC’s existing general license authorizing the provision of certain legal services to Cuba and Cuban nationals will be expanded to allow the receipt of payment for such services. Certain limitations will apply, related to payments from prohibited Cuban Government or Cuban Communist Party officials. Additionally, a new general license will authorize persons subject to U.S. jurisdiction to receive, and make payment for, certain legal services from Cuba or Cuban nationals.

Civil Aviation Safety –

Supporting international aviation and passenger safety:

A case-by-case review policy will apply to license applications for exports and reexports to Cuba of items to help ensure the safety of civil aviation and the safe operation of commercial passenger aircraft. Items that are to be reviewed pursuant to this policy include aircraft parts and components; software and technology related to safety of flight; air traffic control, aviation communications, and aviation weather related equipment; airport safety equipment; and devices used for security screening of passengers and baggage.

Gift Imports –

Allowing certain gifts:

Imports of merchandise from Cuba or Cuban-origin merchandise from a third country intended as gifts, excluding alcohol and tobacco products, will be allowed to be sent to the United States provided that the merchandise is not carried by a traveler, the value of the merchandise is not more than $100, and the item is a type and in quantities normally given as a gift.

Educational Activities –

Increasing contact between American and Cubans and enhancing the free flow of information to, from, and among the Cuban people:

Under an expanded general license, additional educational activities involving Cuba and Cuban nationals, including the provision of standardized testing services and internet-based courses, will be authorized.
Academic exchanges and joint non-commercial academic research with universities or academic institutions in Cuba will also be authorized.
Travel-related transactions in connection with these activities will also be authorized.

Ordinarily Incident Transactions –

Clarifying the scope of authorized transactions:

OFAC is clarifying that the Cuba sanctions provisions that are already in place allow most transactions that are ordinarily incident and necessary to give effect to a licensed transaction. For example, certain payments made using online payment platforms are permitted for authorized transactions.

Air Ambulances and Emergency Medical Services –

Facilitating access to emergency medical services:

The provision of air ambulance and other related emergency medical services to travelers in Cuba will be authorized by general license, and a general license will clarify that the provision of nonscheduled emergency medical services to Cuban nationals in the United States is authorized.

Humanitarian Projects –

Facilitating aid to the Cuban people in times of need and preserving Cuban history:

The general license authorizing transactions related to specified humanitarian projects will be expanded to include disaster relief and historical preservation.

Supporting Diplomatic Relations –

Supporting the reestablishment of diplomatic relations with Cuba in accordance with the President’s announcement:

OFAC is expanding the general license authorizing transactions with official missions of Cuba to the United States to include international funds transfers.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, and a member of the Duane Morris Cuba Business Group. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

July 1, 2015July 8, 2015 by Jose A. Aquino

U.S. and Cuba To Announce Embassy Openings

President Barack Obama is expected to announce this morning that the United States and Cuba have reached an agreement to re-establish formal diplomatic relations and reopen embassies in each other’s capitals. President Obama proclaimed in December that he wanted to resume full diplomatic relations with Cuba and, after six months of negotiations, the two countries have worked out details of the new embassies. For the first time in over fifty years the Cuban flag will fly over its embassy in Washington and the U.S. flag will likewise hover over Havana.

The former U.S. embassy in Havana, now known as the U.S. Interests Section, will be reconverted into a fully operating embassy. The seven-story U.S. Embassy building on the Havana waterfront was constructed in 1953. The U.S. closed its embassy when then President Dwight D. Eisenhower broke off diplomatic relations with Cuba in January 1961. The former embassy building opened as the U.S. Interests Section in 1977 under President Jimmy Carter when he tried to re-establish diplomatic relations with Cuba. The State Department estimates that it needs $6.6 million to renovate the building to make it an operating embassy.

Secretary of State John Kerry is expected to travel to Cuba in July to oversee the embassy’s reopening. President Obama is also expected to travel to Cuba before leaving office in January 2017.

However, before it can reopen, the State Department must notify Congress of its intent to reopen the embassy in Havana. Congress then has 15 days to review the notification before the U.S. can open the embassy. Although certain factions in both houses of Congress continue to oppose widening ties with Cuba, there is unlikely to be a serious challenge to the reopening of the U.S. embassy in Havana.

June 5, 2015June 5, 2015 by Lawrence W. Diamond

Removal From Terror List Marks Significant Step In U.S.-Cuba Relations

The Obama administration took another major step toward normalized relations with Cuba when the State Department announced that as of May 29 it had removed Cuba from the U.S. list of state sponsors of terrorism. Cuba’s removal from the list came at the end of a 45-day congressional review period. Congress could have taken steps to oppose the removal of Cuba from the list, but did not do so.

Much like the administration’s Dec. 17 announcement to begin the process of normalization of relations with Cuba, including travel and commerce, the move comes by way of an executive order and doesn’t do away with the 55-year-old U.S. embargo on the island nation. Still, the move represents increased progress in President Obama’s hope of thawing tensions between the countries and is quite significant in that it clears another major hurdle toward restoring formal diplomatic ties between Washington and Havana. Continue reading “Removal From Terror List Marks Significant Step In U.S.-Cuba Relations”

June 5, 2015June 16, 2015 by Jose A. Aquino

House Spending Bill Includes Measure Blocking Funds For American Embassy In Cuba

On June 3, the House Appropriations subcommittee that funds the State Department and foreign operations voted for a proposed U.S. House of Representatives appropriations bill that would prohibit new funding for an American embassy or other diplomatic facility in Cuba, beyond what was in existence prior to the President Obama’s December announcement that his administration was moving to normalize relations with Cuba. The fiscal year 2016 annual spending bill also restricts funds to facilitate the opening of a Cuban embassy in the U.S., increases democracy assistance and international broadcasting to Cuba, and provides direction to the Secretary of State on denying the issuance of visas to members of the Cuban military and the Communist party.

Rep. Mario Diaz-Balart, R-FL., a member of the funding subcommittee, said: “As President Obama continues to appease the Castro brothers, I will work with my colleagues to ensure that the Congress stands in solidarity with the Cuban people rather than providing further concessions to their oppressors.”

The re-opening of the U.S. embassy in Havana is also opposed by U.S. Senator Marco Rubio, R-FL, who in a recent letter to Secretary of State John Kerry wrote: “Despite more than five months of discussions with the Cuban government, I am very concerned about the lack of political reforms, and progress on human rights; the continued harboring of known terrorists and other fugitives from U.S. justice; the outstanding American property claims and judgments against the Cuban government; and the limitations that continue to be placed on American diplomats working in Havana ,” Senator Rubio continued. “I intend to work with my colleagues to block the Administration’s efforts to pursue diplomatic relations with Cuba and name an Ambassador to Havana until substantive progress is made on these important issues.”

A PDF of Senator Rubio’s letter is available here.

It remains to be seen whether House Republicans can derail the White House from quickly restoring full diplomatic relations with Cuba. The appropriations legislation which only addresses funding still must be approved by the full House and survive negotiations with the Senate, which is drafting its own spending bill. Moreover, the bill does not prevent the State Department from establishing an embassy in Havana, but it makes it more difficult.

Jose A. Aquino is a member of the Duane Morris Cuba Business Group. Lawrence W. Diamond is chair of the Duane Morris Cuba Business Group.

May 1, 2015 by Lawrence W. Diamond

House Bill Would Stall Process of Normalizing U.S. Relations with Cuba

This week a Department of Transportation appropriations bill was introduced in the US House of Representatives that would thwart the normalization process that President Obama and the Cuban government have been pursuing. Tacked onto the appropriations bill are provisions that would prevent the US government from using any funds to recertify airlines and cruise lines that travel to Cuba, thereby effectively preventing new travel to Cuba. By including these provisions in the DOT appropriations bill, which is viewed as critical legislation, its supporters are trying to insulate the proposed legislation from a presidential veto. This maneuver is a risky one that may backfire for the following reasons.

A lot of momentum in favor of normalizing relations has built up since December 17, when the President announced the initiative
US businesses have shown great interest in the possibilities that normalization would bring for them to tap into a new Cuban market
The American people may be tiring of paralyzing political actions
Recent surveys‎ show that a majority of Cuban-Americans, as well as a majority of Americans in general, support retraction of the embargo.
Pope Francis brokered the agreements made by President Obama and President Castro to pursue normalization, and the Pope is coming to visit both Cuba and the US in a few months
Senator Menendez, one of the most outspoken advocates for maintaining the embargo, is facing his own battle now that he has been indicted, probably reducing his power to affect the dialogue

Co-authored by Lawrence Diamond and Jose Aquino

Jose A. Aquino

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April 23, 2015June 4, 2015 by Jose A. Aquino

Pope Francis Will Travel To Cuba In September Ahead Of His Visit To The US

The Vatican announced Wednesday that Pope Francis had accepted an invitation to visit Cuba. The Vatican spokesman, the Rev. Federico Lombardi, said in a statement: “I am able to confirm that the Holy Father Francis, having received and accepted the invitation from the civil authorities and bishops of Cuba, has decided to pay a visit to the island before his arrival in the United States for the trip announced some time ago.” No further details of the Pope’s plans to visit Cuba were given by the Vatican. Francis will be the third pope to travel to Cuba, following visits to the island nation by John Paul II in 1998 and Benedict XVI in 2012.

The announcement of the Pope’s visit follows the recent steps toward renewal of full diplomatic relations between the United States and Cuba. The Vatican hosted secret meetings last year between diplomats from the two countries that are credited with helping bring about last December’s diplomatic warming between the two nations. The Pope also personally intervened by sending letters to both President Obama and Cuban leader Raúl Castro urging them to find ways to move forward on issues that separate the two nations. The Vatican initiative culminated with the December announcement that Cuba and the United States planned to renew diplomatic ties.