Additional State Department Briefing on Helms-Burton Changes

A prior post discussed the changes in U.S. implementation of Title III of the Helms-Burton Act that were announced on April 17 by Secretary of State Mike Pompeo and discussed by an Assistant Secretary of State. That same day an unidentified senior official of the Department held a briefing for journalists, apparently at the U.S. Embassy in Havana. Here are highlights of that briefing.[1]

General Comments on Helms-Burton Act

“[U]nder Title III, Congress gave U.S. nationals with a claim to confiscated property in Cuba the right to file a lawsuit against the people or companies who were trafficking in that property.  But for more than 22 years, U.S. Presidents or Secretaries of State have suspended American’s rights under Title III which Congress authorized when both necessary to U.S. national interests and necessary to expedite a transition to democracy in Cuba.”

“Now our decision on Title III is fundamentally related to the actions of the Cuban regime.  After suspending Title III for more than 22 years in a row we still have not seen Cuba transition to democracy.  In fact the opposite is true.  Cuba shows no sign that it will achieve democracy in the near future as the repressive political situation in Cuba has persisted.  And even under a new leader in Cuba, nothing has fundamentally changed.  The recent illegitimate constitutional referendum on February 24th simply entrenched the one-party rule in Cuba, and of course the human rights situation in Cuba remains abysmal.”

“But not only has the situation in Cuba worsened, Cuba also actively undermines democracy in the region as a whole.  We’ve seen it export dictatorship, export torture, export arbitrary detentions, and export the harassment and intimidation of dissidents and opposition factors.  And in all of these actions Cuba continues to prop up the former Maduro regime which denies Venezuelans their right to self-determination.”

“So under the Trump administration U.S. policy towards Cuba will reflect reality.  Twenty-two years of suspending Title III has failed to advance the goal set forth by the legislation in the first place.  Secretary Pompeo’s decision today recognizes the truth of that failure and enacts Congress’ common sense policy to starve the Cuban regime of the wealth it needs to hold onto power while simultaneously supporting the people of Cuba.”

“So ending the suspension of Title III sends a strong signal against trafficking in these confiscated properties as well as opens a path for U.S. claimants whose property was confiscated by the Cuban regime to seek compensation.”

“[S]tarting with NSPM5 [National Security Presidential Memorandum], this administration has made clear its intent on holding the Cuban regime accountable for repression on the island and maligned activity overseas, while at the same time supporting the Cuban people.  And this administration will not allow those trafficking in confiscated property off the hook for their complicity in the regime’s malign behavior.”

“The purpose of the legislation as it was originally passed was to ensure that there was justice for those who had their property illegally confiscated by the Cuban regime.  So of course any European company, any American company, any company around the world that traffics in property that was confiscated by the regime does have the possibility of being hit by this legislation.”

“So I wouldn’t be comfortable giving an assessment on how many companies that applies to, but the LIBERTAD Act also does include certain conditions and requirements to bring an action under Title III.  So in that instance we advise potential plaintiffs to consult with legal counsel.”

Impact of U.S. Changes on Europe

“{O]ou relationship with our partners in Europe is very critical to this administration.  We’ve consulted with them numerous times.  We’ve taken into account their considerations and their concerns. . . . we all agree on the broader strategy to promote democracy and human rights in Cuba.  There is some disagreement on the tactics to get there.”

“[W]hether the Europeans would be taking this to the World Trade Organization, I would just defer to them on their response and what their actions will be, and just simply reiterate that we here are implementing the laws passed by Congress.”

“With this . . . implementation of this legislation we are not targeting any specific countries or specific companies.  The Secretary has made very clear that this is a decision not to waive, that has no exceptions.  So there is no direct targeting reflected here.”

“And in terms of the broader message that we’re trying to communicate writ large, it is the administration’s continued focus on holding the Cuban regime accountable for human rights abuses, and again, simultaneously supporting the people of Cuba in their fight for democracy. [No response to question about impact on Russia.]

“[T[his administration is very committed and clear-eyed in its focus on bringing human rights to Cuba.  This decision is part of a long trajectory that started with NSPM5 and continues with the Cuba restricted list with this decision.  I think you will continue to see decisions and announcements from this administration up to and until a moment when we have democracy in Cuba.” [No response to question about possible re-designation of Cuba as a State Sponsor of Terrorism.]

Cuba and Venezuela

“We have already begun to undertake a number of actions when it comes to Cuba’s role in Venezuela.  As mentioned, this is based [on] . . . the Cuban regime’s activities, both inside Cuba as well as its actions inside Venezuela.”

So we have been very clear on our intent to ratchet up that pressure.  We’ve also been clear that we’re monitoring the impact, the recent suspensions had on bringing about meaningful reform in Cuba.  And we have seen none of those things”

“{T]his is administration has already come out with a number of sanctions and designations specifically related to Cuba’s, the relationship between Cuba and Venezuela, so that again is an indication that we are willing to ratchet up the pressure with respect to Cuba’s foreign intervention in that country.”{

We would agree, there definitely is military intervention in Venezuela.  It’s not on the part of President Juan Guaido or the United States.  It is uniquely on the part of former regime leader Nicolas Maduro, the Cubans, the Russians, and the Iranians.  It is something that we do not accept.  The Lima Group recently announced that they do not accept this intervention.  It is against all of the principles of non-intervention that are held so dear to the people of the Western Hemisphere.  So we absolutely agree with that assertion.”

“We have no tolerance or patience for the recent landing of Russian military personnel inside Venezuela.  We have no tolerance or patience for the way the Cuban regime treats the people of Venezuela, how it props up the Maduro regime, how it provides repression training and tactics to Sebin and others.  So accordingly we are and will continue to take action.”

“We know that there are Cuban military and intelligence services present in Venezuela.  It is widely known both inside and outside of Venezuela that these officers are deeply entrenched in the Venezuela state.  They are the ones providing physical protection and other support directly to Maduro and to the inner circle.  And Maduro himself has made no secret of his partnership with the Cuban armed forces’

In October 2018 Maduro celebrated the deployment of Cuban Special Forces units which were called the Black Wasps, to the Venezuelan-Colombia border for provocative military exercises, and we’ve seen publicly the provocative actions undertaken by the Russians in recent weeks as well.”

In terms of the next steps that we can do, . . . on April 12th the United States sanctioned four companies for operating in the oil sector of the Venezuelan economy and identified nine vessels as blocked properties pursuant to an Executive Order.  Those actions were themselves a follow-on to previous designations and identifications announced earlier in the month which targeted entities and vessels known to be involved in the transportation of crude oil from Venezuela to Cuba.”

All “of these actions are aligned with our broader Venezuela strategy which seeks to hinder the former Maduro regime’s ability to line its pockets with the profits from natural resources that properly belong to the people of Venezuela but that Maduro himself steals.  And it’s also very consistent with our policy approach when it comes to Cuba, which is making sure that we are again holding the regime accountable for its abuses, both inside the country as well as its abuses outside the country.”

Potential Claims for Expropriated Cuban Property

The U.S. “ Foreign Claims Settlement Commission has certified nearly $2 billion worth of claims.  That doesn’t include possible interest.  The United States did an assessment, . . .in 1996, where we saw that there were over 6,000 certified claims.  However,  . . . [today’s] determination is not specifically focused only on certified claims . . . [and] there could be as many as 200,000 certified claims [and] uncertified claims.  That’s why we can’t give a concrete assessment of exactly how many companies or how much money this would entail.  However it’s possible that it could be in the tens of billions of dollars.”

“Title IV  [of the Helms-Burton Act] was never suspended, and what I can say is that we are going to be ramping up investigations in that space as well.”

Conclusion

Exceedingly important facts are ignored by the U.S. cancelling further waiver of Title III of the Helms-Burton Act, by the U.S. current discussion of the claims by U.S. nationals for Cuba’s expropriation of their property on the island, by the above comments by a State Department official as well as Secretary Pompeo’s April 17 announcement of the changes regarding the Act and by the subsequent briefing by Assistant Secretary Breier, as set forth in a prior post.

First, Cuba has consistently recognized that it has an obligation under international law to pay fair compensation for all property that was expropriated in the early years of the Cuba Revolutionary Government. [2]

Second, Cuba has negotiated and paid such expropriation claims by claimants from other countries. [2]

Third, during  the Obama Administration in 2015-2016 held bilateral meetings with Cuba in Washington, D.C. and Havana on many issues that had accumulated during the 50-plus years of U.S.-Cuba estrangement. One such subject was compensation for U.S. claimants for expropriated property. However, there was no resulting agreement on this and many other subjects. I suspect this was due to the complexity of these many issues, potential U.S. political difficulties in approving any such settlement and Cuba’s lack of money to pay such U.S. claims. [2]

Fourth, as a result, this blog has proposed, in an earlier post, that the U.S. and Cuba should agree to an international arbitration over this and other U.S. and Cuba damage claims. (Remember every Fall at the U.N. General Assembly Cuba alleges large amounts of damages from the U.S. embargo when the Assembly overwhelmingly approves Cuba’s resolution condemning that U.S. embargo and this Cuba claim would also be part of the arbitration.) This is a peaceful, responsible way to settle these claims, and frequently in U.S. litigation over large, competing claims, settlements frequently occur after the parties become further educated about the merits and risks of such claims.

The current U.S. bluster over the Helms-Burton Act totally fails to recognize this solution to the issue of compensation of U.S. nationals for expropriation of their property in Cuba.

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[1] U.S. Embassy in Cuba, Telephonic Press Briefing with Senior State Department Official  on the U.S. Policy Towards Cuba (April 17, 2019).

[2] See posts listed in the “U.S. (Obama) & Cuba (Normalization), 2015” and “U.S. (Obama) & Cuba (Normalization), 2016” sections of List of Posts to dwkcommentaries–Topical: CUBA.

 

State Department Creates Cuba Internet Task  Force and Suspends Enforcement of Statutory Liability for Trafficking in Certain Cuban Expropriated Property 

This week the U.S. State Department has taken two actions regarding Cuba: (1) creation of the Cuba Internet Task Force and (2) granting another six-month extension of the right of U.S. persons to sue traffickers in U.S. property that was expropriated by the Cuban government.

U.S.’ Cuba Internet Task Force.

On January 23, the U.S. Department of State issued a terse announcement that it “is convening a Cuba Internet Task Force composed of U.S. government and non-governmental representatives to promote the free and unregulated flow of information in Cuba. The task force will examine the technological challenges and opportunities for expanding internet access and independent media in Cuba.” The announcement also stated that the first public meeting of the Task force would be on February 7.[1]

This action was pursuant to President Trump’s June 16, 2017’s National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba that he dramatically signed at a public meeting in the Little Havana district of Miami, Florida. The purpose of that document was to announce various policies “to promote a stable, prosperous, and free country for the Cuban people. . . . [to] channel funds toward the Cuban people and away from a regime that has failed to meet the most basic requirements of a free and just society [and to condemn abuses by the Cuban regime]. . . . [The] Administration will continue to evaluate its policies so as to improve human rights, encourage the rule of law, foster free markets and free enterprise, and promote democracy in Cuba.” (Section 1)[2]

More specifically Section 2 (d) of that Presidential Memorandum stated that the U.S. was to “Amplify efforts to support the Cuban people through the expansion of internet services, free press, free enterprise, free association, and lawful travel.”

The creation of the Task Force was criticized by Michael Bustamante, an assistant professor of Latin American history at Florida International University. He said, “By casting the issue of internet access in an explicitly political frame, it will only create greater obstacles for those U.S. telecom companies that have made inroads toward partnerships with the Cuban side. Measures like these strengthen the hand of those in Cuba for whom the prospect (and reality) of external meddling justifies maximum caution with respect to internal reform.”

Cuba immediately registered strong objections to the creation of this Task Force with good reason.[3]

Granma, the official newspaper of the Communist Party of Cuba, said, “In the past phrases like promoting “’freedom of speech’ and ‘expanding access to the internet in Cuba’ have been used by Washington as a pretext for schemes to destabilize the country using new technologies.”

One of Granma’s journalists, Sergio Gómez, declared, “If the administration of President Donald Trump intends to use new technologies to impose changes in the internal order of Cuba, he chose very old roads that have already demonstrated their ineffectiveness, without mentioning the obvious fact that they violate the laws of the affected country. even those of the United States.” Moreover, the “terrain chosen for the new aggression, Internet, clearly demonstrates what the true objectives of Washington are when it demands ‘ree access’  to the network in the countries that oppose it, while in its territory it maintains a tracking system and accumulation of data about what citizens do on the web.”

Gómez also asserted that the U.S. “shows a clear pattern of the use of social networks and the internet with objectives geopolitical and domination. All part of a doctrine of unconventional war designed to destabilize nations without the direct use of military forces, which has taken root after the failures in the conflicts in Iraq and Afghanistan.”

In another article, Gómez added details about Cuba’s expanded Internet access apparently to reject the implicit premise of the U.S. announcement that Cuba was continuing to suffer from lack of such access. Gomez said, “Cuba, by sovereign decision and to the extent of its economic possibilities, is increasing the access of its citizens to the network of networks. According to information provided by specialist Rosa Miriam Alizada, ‘2017 will be remembered as the boom in the expansion of access to the network in our country, with 40% of Cubans connected to the Internet, 37% more than in 2010, and for the naturalization of the internet connection in urban spaces from one end of the island to the other.’”

Another Cuban journalist with a Doctorate in Political Science from the University of Havana, Randy Alfonso Falcón, reported this was not the first time the U.S. had attempted to use the Internet regarding Cuba. On February 14, 2006, then Secretary of State Condoleezza Rice created the Global Internet Freedom Task Force for “maximizing freedom of expression and free flow of information and ideas, especially in Cuba, Iran and China. The author also asserts that this general strategy was continued in the Obama administration.

Therefore, Falcón believes, “In the face of US action In the Cuban digital public space, our response cannot be merely defensive. We must look forward with a scientifically based vision that mobilizes responses and alternatives from Cuba to the extraordinary ideological and cultural confrontation that arises. Take by assault, from the knowledge, the tools of the new colonizers, build ours and endow them with symbols and emancipating essences.”

Suspension of Right To Sue Over Trafficking in Expropriated Property[4]

On January 24, the day after the creation of the Task Force, the State Department announced that once again it was suspending for six months the right to bring a legal action under Title III of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (a/k/a the Helms-Burton Law).

That Title III in section 302 states, “any person that . . . traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages.”

Since its adoption in 1996, however, Title III has been suspended for consecutive six-month periods by orders of Presidents Bill Clinton, George W. Bush, Barack Obama and now Donald Trump. These suspensions have been made to avoid risking the alienation of U.S. setting legal precedents that contradict other principles of U.S. or international law and opening the door to a potential flood of claims.

John Kavulich, president of the United States-Cuba Economic and Trade Council, said last year that this clause could be “used as a surgical tool to pressure” governments and foreign companies to encourage the Government of Cuba to resolve the 5,913 certified claims that there is in the United States ,” for a total amount of $1.9 billion (with interest).

As previous posts have explained, Cuba recognizes its obligation under international law to pay reasonable compensation for expropriation of property owned by foreigners and in fact has done so for claimants from other countries. Thus, Cuba has conceded the major premise of any I.S. claim for damages for expropriation. In addition, this blog has suggested that the dispute over compensation for expropriation of property owned by Americans be submitted for resolution by an international arbitration tribunal. Presumably the only issue that might be disputed is the value of the property at the time of the expropriation and the amount of interest thereon.[5]

Conclusion

U.S. citizens who support U.S.-Cuba normalization now must see who is appointed to the Cuba Internet Task Force and what it proposes to do. For this blogger, the Task force is based on the erroneous premise that the U.S. may and should unilaterally decide what Internet facilities and access another country should have and unilaterally provide such facilities and technology.  Instead, the U.S. should seek to negotiate bilateral agreements with other countries to cooperate on such issues.

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[1] U.S. State Dep’t, Creation of the Cuba Internet Task Force (Jan. 23, 2018); Reuters, State Department creates Cuba Internet Task Force (Jan.23, 2018); Torres, Trump administration wants to expand internet access in Cuba, Miami Herald (Ja. 23, 2018).

[2] President Trump Announces Reversal of Some U.S.-Cuba Normalization Policies, dwkcommentaries.com (June 19, 2017).   Surprisingly this Presidential Memorandum is no longer available on the White House website.

[3] Washington creates Internet Task Force to promote subversion in Cuba, Granma (Jan. 24, 2018); Gomez, The United States takes up failed policies towards Cuba, Granma (Jan. 23, 2018); Gomez, United States creates a new Task Force on the Internet for subversion in Cuba, Granma (Jan. 24, 2018).  See also posts cited in the “U.S. Democracy Promotion in Cuba” section of List of Posts to the List of Posts to dwkcommentaries.com—Topical: CUBA.

[4]  U.S. State Dep’t, United States Determination of Six Months’ Suspension Under Title III of Libertad (Jan. 24, 2018); Provision that allows Cuban Americans to sue for confiscated property in Cuba is suspended, Miami Herald (Jan. 24, 2018); Trump suspends for another six months the clause of the Helms Burton that allows expropriation lawsuits, Diario de Cuba (Jan. 24, 2018); Falcón, The US strategy for Cuba in the digital public space, CubaDebate (Jan, 24, 208).

[5]  See Resolution of U.S. and Cuba’s Damage Claims, dwkcommentaries.com (April 6, 2015); Resolving U.S. and Cuba Damage Claims, dwkcommentaries.com (Dec. 13, 2015).

 

 

Senator Rubio Takes Credit for More Hostile U.S. Policies Regarding Cuba 

On December 22, Senator Marco Rubio (Rep., FL) released a “summary of his 2017 accomplishments.”[1]

Second on this list was “Shaping U.S. Policy Toward Cuba.” It stated, “Rubio worked closely with President Trump and his Administration to develop a new U.S. policy toward Cuba that rolls back the Obama Administration’s one-sided concessions to the Castro regime, and instead works to economically and politically empower private Cuban citizens and entrepreneurs.”

The hyperlinked article for Rubio’s working closely with President Trump was written in Politico by Marc Caputo, formerly of the Miami Herald.[2] It asserts that on May 5 Rubio along with his fellow Miami Republican and Cuban-American, Representative Mario Diaz-Balart, met at the White House with President Trump, Secretary of State Rex Tillerson, National Security Adviser H.R. McMaster, then White House Chief of Staff Reince Priebus and Advisor Jared Kushner. Rubio and Diaz-Balart warned the President not to rely upon career service people in the State and Treasury Departments because they did not favor abandoning President Obama’s policy of normalization with the island. Instead, it was suggested, the President himself and his close advisors should develop the new policy themselves.

Trump immediately accepted the suggestion and McMaster volunteered to implement the decision to change U.S. policy towards Cuba, which was announced in the President’s speech in Miami on June 16  and formalized in the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, which he signed immediately after the speech.[3]

This blogger already has expressed his opposition to this reversal of U.S. policy and rhetoric regarding Cuba and suggested instead on overturning the new ban on individual person-to-person travel and emphasizing the ban’s adverse impact on Cuba’s emerging entrepreneurs while continuing to advocate for implementation of other normalization measures.[4]

Although Rubio is a Cuban-American, he has never lived there or even visited the island. Thus, he is subject to legitimate criticism for having a distorted view of what U.S. policy should be. Addressing this glaring gap in his knowledge, a group of Cuban businesswomen have invited him to visit Cuba to learn about Cuba, the island’s emerging private sector and the adverse impact on those new businesses from the U.S. policies advocated by the Senator and President Trump. The Senator, however, has not accepted the invitation or even acknowledged this graceful gesture by the women.[5]

The Senator also could learn from Living Waters for the World, a project of the Synod of Living Waters of the Presbyterian Church (U.S.A.) that has installed nearly 900 clean water systems in 25 countries, including nearly 50 in Cuba. A recent U.S. volunteer group visited 10 such clean water sites in Cuba and said there was a sense of God whispering, “Pay attention, I have something important to show you—our inherent connectedness. Clearly, God does extraordinary things when we reach beyond our boundaries to know, be with, and pay attention to our brothers and sisters in Christ.”[6]

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[1] Press Release: Rubio Highlights 2017 Accomplishments (Dec. 22, 2017).

[2] Caputo, Inside Marco Rubio’s campaign to shape Trump’s Cuba crackdown, Politico (June 15, 2017).

[3] See these posts to dwkcommentaries.com: President Trump Announces Reversal of Some Cuba Normalization Policies (June 19, 2017); U.S. Reactions to Trump Reversal of Some U.S.-Cuba Normalization Policies (June 21, 2017); Cuban Reactions to Trump Reversal of Some U.S.-Cuba Normalization Policies (June 22, 2107).

[4] This Blogger’s Reactions to Trump Reversal of Some U.S.-Cuba Normalization Policies, dwkcommentaries.com (June 23, 2017).

[5]  Reuters, Cuban businesswomen seek Rubio meeting as U.S. policy bites (Nov. 17, 2017).

[6] Zehnder, Changing Subjectivity, Waters of Life (Nov.-Dec. 2017).

New Restrictions on U.S. Travel to Cuba and Transactions with Certain Cuban Entities                                     

On November 8, the U.S. Treasury, Commerce and State departments released regulations imposing new restrictions on U.S. citizens travel to Cuba. Taking effect on November 9, they “are aimed at preventing U.S. trade and travelers from benefiting its military, intelligences and security arms of the Communist-ruled country.” In addition, they require U.S. travelers on “person-to-person” trips “to use a U.S.-based organization and be accompanied by a U.S. representative of the group.”[1]

This blog post will first provide a list of the Treasury Department’s 12 categories of general licenses for approved travel to Cuba, only two of which are directly affected by the new regulations. These two categories will be discussed followed by the new regulations ban on transactions with certain Cuban entities that affects all 12 categories.

Categories of Approved Travel[2]

“Travel-related transactions are permitted by [OFAC’s] general license for certain travel related to the following activities, subject to the criteria and conditions in each general license: (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 authorized export transactions.”

Only the two categories in bold are affected by the new regulations—travel for “educational” reasons (organized and people-to-people) and “support for the Cuban people.”

Formal Educational Travel[3]

OFAC states, “Among other things, this general license authorizes, subject to conditions, faculty, staff, and students at U.S. academic institutions . . . to engage in certain educational activities, including study abroad programs, in Cuba, Cuban scholars to engage in certain educational activities in the United States, and certain activities to facilitate licensed educational programs. U.S. and Cuban universities may engage in academic exchanges and joint non- commercial academic research under the general license. This provision also authorizes persons subject to U.S. jurisdiction to provide standardized testing services and certain internet-based courses to Cuban nationals.

In addition, “educational exchanges, including study abroad programs, sponsored by Cuban or U.S. secondary schools involving secondary school students’ participation in a formal course of study or in a structured educational program offered by a secondary school or other academic institution, and led by a teacher or other secondary school official are authorized. Such exchanges must take place under the auspices of an organization that is a person subject to U.S. jurisdiction, and a person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization (including the leading teacher or secondary school official) must accompany each group traveling to Cuba. For a complete description of what this general license authorizes and the restrictions that apply, see 31 CFR § 515.565(a)(2)(vi). This authorization allows for participation of a reasonable number of adult chaperones to accompany the secondary school students to Cuba.”

“People-to-People” Educational Travel[4]

“OFAC is amending the general license for people-to-people educational activities in Cuba to remove the authorization for individual people-to-people educational travel. This general license now authorizes, subject to conditions, persons subject to U.S. jurisdiction to engage in certain educational exchanges in Cuba under the auspices of an organization that is a person subject to U.S. jurisdiction and sponsors such exchanges to promote people-to-people contact. Travelers utilizing this general license must ensure they maintain a full-time schedule of educational exchange activities intended to enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities, and that will result in meaningful interaction between the traveler and individuals in Cuba.”

“The predominant portion of the activities must not be with a prohibited official of the Government of Cuba, as defined in 31 CFR § 515.337, or a prohibited member of the Cuban Communist Party, as defined in 31 CFR § 515.338.”

“A person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization must accompany each people-to-people educational group traveling to Cuba to ensure that each traveler has a full-time schedule of educational exchange activities. Individuals traveling under the auspices of an organization that is a person subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact may rely on the entity sponsoring the travel to satisfy his or her recordkeeping obligations with respect to the requirements described above. OFAC is amending this general license to exclude from the authorization direct financial transactions with entities and subentities identified on the State Department’s Cuba Restricted List.”

Support for the Cuban People” Travel[5]

“This general license authorizes, subject to conditions, travel-related transactions and other transactions that are intended to provide support for the Cuban people, which include activities of recognized human rights organizations; independent organizations designed to promote a rapid, peaceful transition to democracy; and individuals and non-governmental organizations that promote independent activity intended to strengthen civil society in Cuba. OFAC is amending this general license to require that each traveler utilizing this authorization engage in a full-time schedule of activities that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities and that result in meaningful interactions with individuals in Cuba. OFAC is also amending this general license to exclude from the authorization certain direct financial transactions with entities and subentities identified on the State Department’s Cuba Restricted List. The traveler’s schedule of activities must not include free time or recreation in excess of that consistent with a full-time schedule in Cuba. For a complete description of what this general license authorizes and the restrictions that apply, see 31 CFR § 515.574.”

“ Renting a room in a private Cuban residence (casa particular), eating at privately owned Cuban restaurants (paladares), and shopping at privately owned stores run by self-employed Cubans (cuentapropistas) are examples of authorized activities; however, in order to meet the requirement of a full-time schedule, a traveler must engage in additional authorized Support for the Cuban People activities.”

Ban on Transactions with Certain Cuban Entities[6]

The new regulations also ban U.S. travelers and businesses from transactions with “the large military-run corporations that dominate the Cuban economy. These include GAESA and CIMEX, the holding companies that control most retail business on the island; Gaviota, the largest tourism company; and Habaguanex, the firm that runs Old Havana.” The regulations include a list of forbidden hotels, including Havana’s “Manzana Kempinski, which opened with great fanfare this year as Cuba’s first hotel to meet the international five-star standard.”

This “Cuba Restricted List,” which will be maintained and updated by the State Department, has the following categories of organizations (and the number of entities in each category): Cuban Ministries (2) ; Cuban Holding Companies (including CIMEX,GAESA, Gavotte and Companies Touristic Habituate S.A.) (5) ; Hotels in Havana and Old Havana (27); Hotels in Santiago de Cuba (1); Hotels in Varadero (13); Hotels in Pinar del Rio (2); Hotels in Baracoa (7); Hotels in Cayos de Villa Clara (15); Hotels in Holguín (11); Hotels in Jardine’s del Rey (5); Hotels in Topes de Collates (3); Tourist Agencies (2); Marinas (5); Stores in Old Havana (10);  Entities Directly Serving the Defense and Security Sectors (38); Additional Subentries of CIMEX (16); Additional Subentities of GAESA (13); Additional Subentries of GAVIOTA (4); and Additional Subentries of HABAGUANEX (1).

Conclusion

All of these new regulations are meant to implement President Trump’s National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, which he signed on June 16, 2017, at an event in Miami Florida.[7]

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[1] U.S. Treasury Dep’t, Treasury, Commerce, and State Implement Changes to the Cuba Sanctions Rules (Nov. 8, 2017); U.S. Treasury Dep’t (Office of Foreign Assets Control), Frequently Asked Questions Related to Cuba (updated Nov. 8, 2017); Reuters, Trump Administration Tightens Sanctions Against Cuba, N.Y. Times (Nov. 8, 2018); Assoc. Press, US Takes Steps to Make It Harder for Americans to Visit Cuba, N.Y. times (Nov. 8, 2017); DeYoung, White House implements new Cuba policy restricting travel and trade, Wash. Post (Nov. 8, 2017).

[2] U.S. Treasury Dep’t (Office of Foreign Assets Control), Frequently Asked Questions Related to Cuba (updated Nov. 8, 2017).

[3] Id.

[4] Id.

[5] Id.

[6] U.S. State Dep’t, List of Restricted Entities and Subentities Associated With Cuba as of November 9, 2017 (Nov. 8, 2017); U.S. State Dep’t, Frequently Asked Questions on the Cuba Restricted List (Nov. 8, 2017).

[7]  White House, Trump’s National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (June 16, 2017). This Memorandum and the Miami event were discussed in a prior post.