Today’s announcement that the Office of Foreign Assets Control (OFAC) has amended the Cuban Assets Control Regulations (CACR), 31 CFR 515, offers significant new opportunities to U.S. companies seeking greater access to the Cuban market for those transactions that are currently authorized.
To enhance and better facilitate the business opportunities U.S. companies are seeking in Cuba, OFAC is issuing a series of general licenses – authorizations without the need to apply for and obtain specific licenses from OFAC to conduct an authorized transaction.
Significantly, under § 515.573 of the CACR, OFAC is authorizing U.S. companies to establish a physical presence in Cuba to engage in authorized transactions (or those exempt from the CACR prohibitions), including: leasing office, warehouse, classroom, or retail outlet space, and securing goods and services, related to doing so, including paying rent and other expenses associated with the leased premises; marketing related to the physical presence; employing Cuban nationals in Cuba; and employing persons subject to U.S. jurisdiction, mainly U.S. citizens. In a note, the amended regulations state that employment of persons subject to U.S. jurisdiction are authorized to “engage in all transactions necessary to establish domicile in Cuba, including accessing U.S. assets, for the duration of their employment.”
The physical presence in Cuba must be related to the export of goods that are authorized under § 515.533 or § 515.559 of the CACR. These sections govern exports from the U.S to Cuba, the reexport of 100% U.S.-origin items to Cuba, the negotiation of executory contracts; and certain exports and imports by U.S.-owned or -controlled foreign firms, respectively. Notably, the amendment requires a physical presence in Cuba; therefore, a so-called virtual office or post office box used frequently when entering new markets are not authorized.
In addition, OFAC is issuing a General License for travel that is incident to the export or reexport of authorized items for conducting “market research, commercial marketing, sales negotiation, accompanied delivery, installation, or servicing in Cuba” as long as the travel does not allow for recreational time in the schedule. Therefore, spending the weekend sightseeing or strolling the Malecón before a week of scheduled sales and business meetings or the installation of exported parts and equipment, remain prohibited.
Several other amendments to the CACR have been announced and may be the subject of future client alerts. Of course, authorization from OFAC does not affect Cuban laws and regulations that must be met in order to conduct business in Cuba.
For more information and guidance regarding the Cuban Assets Control Regulations or other sanctions programs administered and enforced by OFAC, please contact Jon P. Yormick, Attorney and Counsellor at Law, firstname.lastname@example.org or by calling +1.866.967.6425 (Toll free in Canada & U.S.) or +1.216.269.5138 (mobile).