Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 25
Trade
In addition to broad based changes that
allow for significantly increased travel to
Cuba, President Obama’s new regulations
also provide strengthened opportunities
for individuals and businesses to engage
in productive trade with Cuba. Pursuant to
Treasury and Commerce Department rules,
trade delegations are authorized to Cuba
if each member of the delegation meets
the criteria of an applicable travel category. In addition, persons subject to U.S. jurisdiction and who travel legally pursuant
to the regulations may import merchandise
acquired in Cuba with value not to exceed
$400 per person, including no more than
$100 in alcohol and tobacco products.11
Above and beyond personal importation
of a few Cuban cigars, the new regulations
will have a large impact on U.S. business
dealings with Cuba and Cuban businesses.
According to the new rules, United States
companies may now export telephones,
computers, and Internet technology to
Cuba. In addition the Commerce Department’s Export Administration Regulations
(EAR) loosen many of the restrictions on
exports to Cuba. Individual or business entities no longer need to acquire an export
license to export goods that “support” the
Cuban people.12 This includes goods such
as building materials, equipment and tools
for use by the private sector or agriculture,
medical devices, medicines, items for use
in scientific, archaeological, sporting, and
educational activities. There is also an exception for licensing to export agricultural commodities to Cuba. Agricultural products - such as food stuffs like apples, powdered milk, feed, fish, beer, wine, spirits,
livestock, wood, seed, fertilizer, bottled
water, and vitamins and minerals - no longer require licensing prior to export.13
In addition to expanded exceptions to
the export licensing requirements, the new
rules also allow banks to operate in Cuba.
This means Mastercard, American Express,
Visa, and others will soon be able to process payments in Cuba linked to United
States banks. Insurance companies may
also now engage in Cuba-related transactions.
opening of embassies, and increased travel
and trade all bode well for a future where
the United States and Cuba can move forward in a productive and mature manner.
However, the changes underway will fail
unless they are based on mutual respect
for each other and, at the government level, respect for each nation’s sovereignty.
Given the fact that at least three potential presidential candidates have voiced
opposition to these changes, there is also
the risk that they could be reversed when
a new administration comes to power after the 2016 election.14 In the meantime,
individuals and businesses looking to engage in Cuba have a unique opportunity.
However, individual and businesses must
be cognizant of the new regulatory framework so as to maintain full compliance with
the law. This includes careful review of the
licensing and banking requirements as well
as the appropriate sanction and sanction
exclusion clauses of any insurance policies
that address Cuba-related transactions.15
Because of Vermont’s long history of engagement on the island, Vermonters are
uniquely positioned to become part of the
change that is underway. As we usually do,
Vermonters are having an outsized impact
on the future of U.S./Cuba relations. Let’s
keep the ball rolling.
____________________
Jared K. Carter, Esq., is a practicing Vermont attorney and a faculty member at
Vermont Law School. He also leads trips
and delegations to Cuba.
The Cuban Democracy Act, 22 U.S.C. 6001.
31 C.F.R. 515.565 (as amended Jan. 17, 2015).
5
31 C.F.R. 515.565(b) (as amended Jan. 17,
2015).
6
Id.
7
www.cubanamericanfs.org.
8
31 C.F.R. 515.564 (as amended Jan. 17, 2015).
9
The Cuban Government recently opened up
opportunities for Cuban citizens to start and
grow small-scale, private businesses in more
than 350 business categories.
10
31 C.F.R. 515.575 (as amended Jan. 17, 2015).
11
Frequently Asked Question, United States
Treasury Department Guidelines on the Cuban
Assets Control Regulations (at http://www.treasury.gov/resource-center/sanctions/Programs/
Documents/cuba_faqs_new.pdf).
12
15 C.F.R. 740.21.
13
15 C.F.R. 772.1.
14
Presidential candidates Jeb Bush, Marco Rubio, and Ted Cruz have all stated that they oppose the changes and the normalization of relations between the United States and Cuba.
15
This legal history and update should not be
construed as legal advice or opinion, and is not
a substitute for the advice of an attorney.
3
4
Wanna Go To Cuba?
to travel to Cuba to build tennis courts or
skate-parks for inner-city Cuban youth to
learn about these sports. Under this category of travel, such activities would be permitted. This category of legal travel has the
potential to create many new ways for people from the United States to engage with
people in Cuba.
____________________
1
Helms-Burton Act, 22 U.S.C. 6012 – 6091.
2
Immigration and Naturalization Service v.
Chadha, 462 U.S. 919 (1983).
Conclusion
After more than fifty-five years, it does
look as though a rapprochement is in progress. The normalization of relations, the
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