Are Cuba Advocates Again Ahead Of Tips Of Their Legislative/Regulatory Skis?

Are Cuba Advocates Again Ahead Of Tips Of Their Legislative/Regulatory Skis?
Incrementalism Preferred
Critical To Match Legislative/Regulatory Intent With What U.S. Companies Will Use
Don’t Get Ahead Of What Cuba Is Willing To Do- That Leads To Disappointment
Important Statutes
USDA FMD/MAP Funding
Reporting On Activity Is Important For Market Credibility
Receiving Payments Bank-To-Bank
Obama Administration Did Not Understand Banking
What Florida May Require Will Remain Relevant

With the arrival of the new year, a new occupant to the Oval Office, a new majority leader for the United States Senate, and new committee and sub-committee chairpersons in the United States Congress, counterintuitively there is again fear by individuals and organizations who have focused throughout the last twenty-five or more years on issues relating to the Republic of Cuba. 

The Cuban Democracy Act (CDA) of 1992, the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”) of 1996, and the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000 will not be repealed during the 117th United States Congress. 

Members of the United States Congress should withstand a desire to make a point by proposing legislation they know, advocates know, and opponents know will never become law.  Feel-good legislation to “Lift the Embargo” is a waste of precious legislative moments which opponents use to demonstrate the unseriousness of such efforts.   

Forgo legislative adventurism of “if we change it, they will use it,” and focus upon “let’s ask not only what they want, but what they need and focus upon what will be useful now.” 

There are changes to provisions within the CDA, Libertad Act, and TSREEA which would be of potential value to United States companies.  However, changing a few regulations would provide immediate benefit to United States companies and, of increasing importance, for the nascent private sector (products and services) and nascent hybrid private-public sector (primarily agricultural) in the Republic of Cuba. 

The proposition required for anything relating to the Republic of Cuba is for the United States to accept, albeit for now, the omnipresence of the government (controlled by a Communist Party) throughout the economy of the nation of 11.3 million nine-three (93) miles south of Key West, Florida.  During the best of United States legislative branch and executive branch harmony, acceptance of the realities of MarketCuba remains fraught with obstacles.     

The Republic of Cuba is perfectly prepared to endure pain repeatedly.  Not for months or years, but decades and to transition that unpleasantness from one century to the next.   

Critical for advocates to appreciate the Trump Administration (2017-2021) successfully connected for many members of the United States Congress conditions today in Venezuela with critical support received from the Republic of Cuba.  The Biden Administration, thus far, has made no effort to disconnect Venezuela from the Republic of Cuba. 

For United States opponents to legislative, policy, or regulatory change or those seeking stringently conditional change, accepting the status quo in the Republic of Cuba or an opaque promise to change or a mystical belief that change will come requires for them gravitational deniability and a world where the calculations of the scientist Albert Einstein do not function properly.  Why, they ask, should the United States, and potentially taxpayers, be helping rebuild a neglected nation where the government of that nation is responsible for its current state and seems to be in little hurry to change?  They view the Republic of Cuba as using Google Maps to find “change” and preferring the scenic route when the goal should be finding the nearest expressway. 

With the 117th United States Congress a tenuous 50/50 composition in the 100-member United States Senate and 2.29%, or ten seats, separating the majority from the minority in the 435-member United States House of Representatives, legislative changes to Republic of Cuba-related statutes may be threadbare if at all.  This means think small.  Prepare for limitations.  Accept conditionality.  Filing legislation for the purpose of making a point is an abuse of resources. 

There is concern that zeal for ordering everything from the legislative menu will overwhelm the logic from using the menu as a buffet- selecting what is most needed first and then moving onward in a methodical manner towards what is desired.  This metaphor is particularly appropriate given the number of times a similar legislative menu has been in play- and the result is a lack of satisfaction. 

For example, how can what is currently permissible by United States statutes be made more efficient?  The presumption being the status quo remains undesirable.  What components can be revisited which, if changed, provide useable value for United States companies and individuals while permitting opponents of change to extract conditionality, but conditionality limited to the extent where the implemented changes remain viable when available.  Yes, a heavy lift.   

Critical that the constituents, not organizations representing companies, but directly from the companies (and financial institutions) who legislators believe to be beneficiaries from change in statutes and regulations relating to the Republic of Cuba are public (statements at hearings and media releases) about what they want and if they obtain what they say they want will then make prompt use of whatever they have received.  See more about this below.   

The White House, United States Senate and United States House of Representatives again are controlled by the same political party as 2009 to 2011, 1993 to 1995, 1977 to 1981, and 1961 to 1969. 

Once again Members of the United States Congress who have supported commercial, economic, and political changes to the United States-Republic of Cuba landscape are believing the legislative, policy and regulatory stars have aligned.  The result, they believe, will be a normalization of the bilateral relationship or, at minimum, a backhoe-like carving up of statutes designed to constrain, constrict, impede, and prohibit a robust bilateral relationship.  United States companies would like to share these beliefs, but are sober enough to recognize the realities.  

Once again well-intentioned advocacy groups will present in their marketing materials that a “pathway forward” is in place, that “the votes are there” and that now is when “funding is so important” because with it, there will be success.  

Everyone can be aspirational and inspirational about legislative, policy, and regulatory changes.  However, might not it be practical to be practical? 

Important Statutes 

The TSREEA re-authorized the direct commercial (on a cash-in-advance basis) export of food products (including branded food products) and agricultural commodities from the United States to the Republic of Cuba, irrespective of purpose. The TSREEA does not include medical equipment, medical instruments, medical supplies, pharmaceuticals, and healthcare products which remain authorized and regulated by the CDA (which permits payment terms). 

Since December 2001, reported TSREEA exports are approximately US$6,296,227,424.00 and since 1992, reported CDA exports are approximately US$26,704,691.00. 

Might provisions within the CDA and/or TSREEA be legislatively revised?  Perhaps.  One oft-referenced provision of the TSREEA discussed for revision is the prohibition upon payment terms other than cash-in-advance for exports of agricultural commodities and food products from the United States to the Republic of Cuba.  The problem, which is similar to what existed in 1999 and in 2000, is neither United States exporters nor United States financial institutions have and are advocating publicly for changes to the payment terms.  While the cash-in-advance requirement retards the U.S. Dollar value of export opportunities, for exporters cash-in-advance means no risk for any transaction which is important given the Republic of Cuba continues to be in constant arrears to other countries for payment obligations to companies, financial institutions, and governments.  No United States company wants to see publicized that it has not been paid for a transaction with the Republic of Cuba as that would harm every transaction. 

United States companies would prefer to determine the creditworthiness of customers rather than the United States government do so on their behalf.  However, the payment provision of the TSREEA serves as a required self-insurance policy making certain that aspirational risk analysis does not replace realistic risk analysis. 

If payment terms and financing were permitted for the export of agricultural commodities and food products from the United States to the Republic of Cuba and United States exporters were to deny payment terms and financing to entities in the Republic of Cuba, then those entities could use the choice of not providing payment terms and financing as reasons to avoid purchases from United States companies.   

Critical to have United States exporters and United States financial institutions prepared in conjunction with any legislative or regulatory or policy advocacy to provide on-the-record whether they would provide payment terms and financing for authorized United States exports to the Republic of Cuba and what those terms would be and to what amount would be financeable. 

USDA FMD/MAP Funding 

In 2018, legislative advocates maintained that inserting a Market Access Program (MAP) and Foreign Market Development (FMD) provision in the Farm Bill was critical to “laying the groundwork” for increasing exports of agricultural commodities and food products to the Republic of Cuba.  Statements from members of Congress included: “… an important first step to regaining our presence in Cuba.”  Yet, there was not one application to the United States Department of Agriculture (USDA) in 2018 or 2019.  

Most observers reasonably concluded that legislative advocates- within the United States Congress and organizations located in Washington DC and located outside of the beltway would have prominently teed-up at least one high-profile applicant to publicize in advance they would use the provision if it became law or at least one high-profile applicant to immediately and publicly request funding when the Farm Bill became law on 21 December 2018.  

The most significant impact of a shockingly low number of MAP/FMD requests in 2018, 2019, 2020, and 2021 is what the lack of interest portends for other legislative efforts in the United States Congress to rescind prohibitions upon the provision of payment terms for agricultural commodity and food product exports from the United States to the Republic of Cuba.  

Use to date of USDA MAP/FMD Republic of Cuba-focused funding provisions in the 2018 Farm Bill has been anemic.  Since 2018, One entity has used MAP funding in the Republic of Cuba.  No entity has used FMD funding in the Republic of Cuba.  The USDA reported no applications were rejected.  From The USDA: 

Since 2019, a total of eight applications were received by the USDA to use MAP and/or FMD.  According to the USDA, “Although the table indicated nine expressions of interest over two years, these represent fewer than nine organizations as some of the organizations applied in multiple years.  The earlier table only included those entities that expressed interest in Cuba directly, not anyone that sought to add Cuba to a regional program.”   

According to the USDA, at least one participant in 2021 and 2020 sought to add the Republic of Cuba to a regional program for MAP, but none for FMD.  No entity pursued or was rejected for activities in the Republic of Cuba through a regional program.  In some respects, that some entities applied more than once, but did not ultimately use MAP and/or FMD in the Republic of Cuba is more consequential because it begs the question- why did the entities apply, but not choose to use MAP and/or FMD in the Republic of Cuba? 

One entity received MAP funding (US$60,000.00) in the Republic of Cuba- Denver, Colorado-based Potatoes USA which in November 2020 delivered to the Republic of Cuba 33,118 pounds of potato seeds valued at US$44,760.00.  Sample costs are ineligible for MAP or FMD funding. 

In 2020, one (1) entity applied to use, but did not use FMD funding and four (4) entities applied to use MAP funding while one (1) entity (Potatoes USA) used MAP funding.  From the USDA, “… any unspent funds would normally remain in participants’ agreements, available for the agency to approve for plans a participant submits in a future year.”    

In 2021, no entity applied to use FMD funding and three entities applied to use MAP funding, but no entity has yet used MAP funding.  From the USDA, “Most MAP programs operate on a January to December year, however, some run on a July to June year.  The regulations allow groups to continue already approved activities up to thirty days after the end of the program year.  Thus, the latest a participant could continue an activity funded by MAP 21 would be July 30, 2022, if their MAP 21 program began June 1, 2021.  A participant would have until the end of January 2022, if their MAP program began January 1, 2021.  The MAP regulations allow a participant to file claims up to six months after the end of the program year.”  In 2021, sixty-seven (67) entities received funding for MAP and twenty-one (21) entities received funding for FMD.  

Reporting On Payment Activity Is Important For Market Credibility 

As the Biden Administration compares what worked during the Obama Administration (2009-2017) and Trump Administration (2017-2021) with what did not work during the Obama Administration and Trump Administration, important during the review include commercial activities, specifically focusing upon those exports from the United States to the Republic of Cuba for which payment terms and financing are permitted. 

Critical for members of the United States Congress to have before them evidence demonstrating that when United States exporters are permitted to provide payment terms and financing, Republic of Cuba-based entities a) make use of the payment terms and financing and b) maintain the terms of all payment terms and financing. Meaning, the United States exporters are being paid on time as expected. 

In 2015 and 2016, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury and Bureau of Industry and Security (BIS) of the United States Department of Commerce expanded the list of products authorized for export from the United States and from third countries to the Republic of Cuba with a focus upon products (non-durable, durable, and consumable) to entities not affiliated with the government of the Republic of Cuba.  

In 2017, Deere & Company (2019 revenues approximately US$39.26 billion) established a distribution center in the Republic of Cuba, joining San Juan, Puerto Rico-based RIMCO, the Republic of Cuba distributor for Peoria, Illinois-based Caterpillar Inc. (2019 revenues approximately US$53.8 billion) established the same year.  At the time, neither Deere & Company nor Caterpillar issued media releases or posted information on their respective Internet sites.  

Since November 2017, Deere & Company delivered more than US$800,000.00 in agricultural equipment to the Republic of Cuba for use at its distribution center.  Antioch, Tennessee-based Wirtgen America, Inc., a subsidiary of Windhagen, Germany-based Wirtgen Group (2020 revenues approximately US$3 billion), a construction equipment machinery subsidiary (acquired in 2017) of Deere & Company has also delivered products to the Republic of Cuba.  RIMCO continues to deliver equipment for use at its distribution center in the Republic of Cuba, including excavators, backhoes, graders, scrapers, bulldozers, railway fixtures, and signaling equipment, valued at more than US$4 million since December 2018.  

John Deere Financial Services was to provide payment terms/financing for the exports, primarily Series 5000 (price range US$25,000.00 to US$80,000.00) with a limited quantity of Series 7000 (price range US$219,000.00 to US$280,000.00).  According to the company, several hundred tractors, parts and accessories may be exported from the United States to the Republic of Cuba during the next four years, with the first deliveries (for testing and evaluation) scheduled for mid-November 2017.  The potential value of the several hundred products exported from the United States to the Republic of Cuba that would be financed could range from US$9 million to US$30 million.    

John Deere Financial Services has not commented as to whether the product sales goals have been achieved or if there have been issues relating to the receipt of payments.    

Caterpillar has not disclosed if the company has provided payment terms for its products exported to the Republic of Cuba.  

Without the provision of substantial discounts in conjunction with extended payment terms and low-interest financing, United States companies remain at a competitive disadvantage as Republic of Cuba government-operated companies prefer government-to-government transactions and government-to-government financing agreements.   

For example, the governments of the People's Republic of China, Russian Federation, Japan, Belarus, France, and India among others provide substantial long-term financing for durable product exports to the Republic of Cuba; and those financing agreements are almost always extended when repayment is problematic, which is often.  

Due to inaction by the Obama Administration throughout its two terms in office despite repeated requests from representatives of the United States business community, payments from the Republic of Cuba to Deere & Company and Caterpillar, payments for agricultural commodities and food products authorized by the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000, and payments for medical equipment, medical instruments, medical supplies, pharmaceuticals, and healthcare products authorized by the Cuban Democracy Act (CDA) and were routed through financial institutions located in third countries rather than directly through the use of Direct Correspondent Banking (DCB). 

Direct Correspondent Banking 

Absent Direct Correspondent Banking (DCB), authorized transactions from the Republic of Cuba to the United States and from the United States to the Republic of Cuba are multi-day rather than multi-hour and third parties located in third countries earn unnecessary fees.   

One use for DCB would be for the transparent and efficient movement of funds from the United States to the Republic of Cuba to directly support Republic of Cuba nationals who are managing businesses- think Direct Foreign Investment (DFI) in an Airbnb-affiliated property, a hair salon, a restaurant, a vehicle repair service, a computer programing service or becoming an investor in Bajanda, the Uber of the Republic of Cuba.  Obviously, the Republic of Cuba would need to approve these types of transactions.  DCB would permit the recipients of DFI to easily repatriate a share of the profits to their investors and partners in the United States.  There needs to be an advance buy-in from the Republic of Cuba.  Without their consent what is the purpose?  The Biden Administration will be seeking quid pro quo. 

Since the CDA became effective in October 1992, the TSREEA became effective in October 2000, and the OFAC, BIS, and United States Department of State have authorized other types of transactions including for the export of agricultural equipment, construction equipment, agricultural commodities, food products, medical equipment, medical instruments, medical supplies, pharmaceuticals, healthcare products, and services including travel-related (airline landing fees, telecommunications, etc.) all payments have been subject to a triangular process through financial institutions located in third countries and then to United States financial institutions.   

Since 1992, the total value of commercial payments from Republic of Cuba government-operated companies to United States-based companies exceeds US$6.4 billion with third-country financial institutions receiving unnecessarily approximately US$130+ million in processing fees.  Reducing transaction fees, which can range to 2% or more, will permit United States companies to a) be more competitive on pricing b) be more competitive on transportation where a 2% difference in a proposed contract may make a difference and c) will permit United States companies to be paid promptly. 

Obama Administration Did Not Understand Banking 

In 2015, Pompano Beach, Florida-based Stonegate Bank (2017 assets approximately US$2.9 billion) was vetted by the OFAC and approved for a correspondent banking relationship with Banco Internacional de Comercia SA (BICSA), a member of Republic of Cuba government-operated Grupo Nuevo Banca SA, created by Corporate Charter No. 49 in 1993 and commenced operation in 1994.  In 2017, Conway, Arkansas-based Home BancShares (2020 assets approximately US$16 billion) through its subsidiary Centennial Bank purchased Stonegate Bank.   

According to the Republic of Cuba, “Its [BICSA] main activity is ‘enterprises’ bank’ carried through its central services and five branches based in the country’s capital, Santiago de Cuba and Villa Clara. It records all transactions in real time providing its customers with card and remote banking services while it is working on developing other methods of electronic banking.  Its institutional clients, national or foreign, receive a complete accounting and documentary service, while national entities also enjoy of significant volumes of credit facilities. Practically all sectors of the economy benefit from all this, such as that of agriculture, the food industry, the basic and light industries, transportation, aviation, fishing, construction, domestic and foreign trade, the iron and steel industry, sugar, informatics, communications and others with not only economic importance but also social, such as health, water supply, education, culture and sports.  Credit policy followed by the Bank is dictated in a collegiate way by its Credit Committee on the basis of a strict analysis and control in loan making.  The Bank counts on correspondents in the five continents, the majority are first class banks, mainly Europeans and Americans.  Equity capital of shareholders (Grupo Nueva Banca with the biggest share and Bancholding), near the USD95 millions with a balance ranging from 550 to 600 millions, make sure the Bank has a strong solvency ratio.” 

Stonegate Bank provided commercial operating accounts for the Embassy of the Republic of Cuba in Washington, DC, and the Permanent Mission of the Republic of Cuba to the United Nations in New York City, New York; and other types of OFAC-authorized and BIS-authorized transactions. 

Without explanation the Obama Administration did authorize BICSA under a license from the OFAC to have an account at Stonegate Bank, so Stonegate Bank routed transactions for approximately eighty (80) customers on a regular basis through Panama City, Panama-based Multibank (2019 assets approximately US$5 billion) which had dealings with the Republic of Cuba. 

However, on 16 June 2020, Bogota, Colombia-based Grupo Aval (2020 assets approximately US$79 billion) reported that “On May 25th, Banco de Bogotá, through its subsidiary Leasing Bogotá S.A. Panamá, acquired 96.6% of the ordinary shares of Multi Financial Group. As part of the acquisition process, MFG’s operation in Cuba was closed and as part of the transaction. Grupo Aval complies with OFAC regulations and doesn't have transactional relationships with Cuba.” 

The United States Congress And Florida 

Unhelpful for the legislative, policy and regulatory change landscape narrative when a college professor in an interview links “more freedom and more private businesses” in the Republic of Cuba to the final twenty-five months of the Obama Administration and less freedom and less private businesses in the Republic of Cuba during the Trump Administration (2017-2021).  And unhelpful when college professors maintain that for the Biden Administration the State of Florida is now “red” and thus no longer a focus for the Democratic Party.   

The bilateral relationship was robust during the final two years of the eight-year Obama Administration and there was a substantial increase from 17 December 2014 to 20 January 2017 in visitors from the United States to the Republic of Cuba which resulted in an increase in the creation of visitor-dependent commercial activities throughout the Republic of Cuba, but “less freedom” today in the Republic of Cuba is not a result of the Trump Administration.  

The Biden Administration and Democratic Party will continue to appease the State of Florida and its 2020 population of 21.48 million residents (14.5 million registered voters) where the Republican Party has 5,219,015 and the Democratic Party has 5,335,965; and 3,790,478 have no party affiliation.  In the 2020 Presidential Election, Florida voted 51.2% Republican to 47.9% Democratic; in 2016, 49.0% Republican to 47.8% Democratic; in 2012, 50.0% Democratic to 49.1% Republican; and in 2008, 51.0% Democratic to 48.2% Republican.  That data does not suggest a red state.  These are the changes from the 116th United States Congress to the 117th United States Congress:   

116th Congress
Senate- 2 R
House- 13 R and 14 D

117th Congress
Senate- 2 R
House- 15 R and 12 D

United States Senate
The Honorable Ted Cruz (R- Texas)
The Honorable Marco Rubio (R- Florida)
The Honorable Robert Menendez (D- New Jersey)

United States House of Representatives
The Honorable Albio Sires (New Jersey; D- 8th)
The Honorable Alex Mooney (West Virginia; R- 2nd)
The Honorable Anthony E. González (Ohio; R- 16th)
The Honorable Mario Díaz-Balart (Florida; R-25th)
The Honorable Carlos Gimenez (Florida; R- 26th)
The Honorable Maria Elvira Salazar (Florida; R- 27th)
The Honorable Nicole Malliotakis (New York; R- 11th)

The Biden Administration will remain concerned about the 435-member United States House of Representatives where the Democratic Party has a ten-seat majority in the 117th United States Congress.  

The 2020 Census is expected to deliver to Florida two (2) additional seats in the United States House of Representatives- which increases the electoral prominence of the state in the 2022 and 2024 elections (24 votes of the required 270 votes for victory in the Electoral College).    

The state legislature in Florida is controlled by Republican Party.  In 2021, the Florida Senate (24- R and 16- D) and the Florida House of Representatives (78- R and 42- D) will expectantly seek to craft favorably the two new districts for the United States House of Representatives and recraft existing districts to lessen the number of Democrats.  There will likely too be court challenges. 

One result will be current Democratic Party members of the United States House of Representatives from Florida will tact right, meaning against Republic of Cuba initiatives in their primaries or general election. 

There will also be Democratic Party members of the United States House of Representatives and United States Senate from other states who will oppose perceived lessening of pressures upon the Republic of Cuba. 

What some advocates will promote as a vote of legislative courage others will decry as a shortcut to the unemployment line.

Efforts to request the Biden Administration suspend Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”) made operational on 2 May 2019 by the Trump Administration risks antagonizing an important constituency in Florida and conflicting with President Biden’s appreciation of not interrupting the judicial process from his tenure as Chairman of the United States Senate Committee on the Judiciary (1987-1995).   

There have been thirty-two lawsuits filed since 2019 and some are at Courts of Appeals.  Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

And there are the many unknowns which can influence the 2022 and 2024 elections in Florida and other states: H.E. Nicolas Maduro, President of Venezuela, is removed from office.  H.E. Daniel Ortega, President of Nicaragua, is removed from office.  The government of the Republic of Cuba decides to robustly engage with the Biden Administration; the 5,913 certified claims are resolved.   

Neither the Biden Administration nor the Democratic Party headquarters in Washington DC will abandon Florida and policies relating to the Republic of Cuba will reflect the electoral realities of Florida.  

Conclusion 

The priority should be changes to regulations for financial transactions which are practical and serve to increase efficiencies and opportunities for United States-based companies while providing increased transparency alongside prodding the Republic of Cuba to simultaneously engage.  Opportunities flow as money flows.   

Any legislative effort should be targeted, as in rifle, rather than scattered, as in shotgun.  Be incrementalist rather than desirous of making a point.

LINK To Complete Text Of Analysis In PDF Format

Biden Administration Removal Of Cuba From List Of State Sponsors Of Terrorism Requires 45-Day Notice To United States Congress

On 12 January 2021, the United States Department of State during the Trump Administration returned the Republic of Cuba to the List of State Sponsors of Terrorism. 

If the Biden Administration had intended promptly to remove the Republic of Cuba from the List of State Sponsors of Terrorism, then the earliest date for rescission from Inauguration Day on 20 January 2021 would have been 6 March 2021 as this would mark forty-five (45) days before a rescission takes effect.  No member of the United States Congress has reported receiving a required notification.   

Part of the removal process includes a certification from the Biden Administration to leadership of the United States Congress that “the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and ... has provided assurances that it will not support acts of international terrorism in the future.” 

The Biden Administration has discretion as to when a six-month period commences.  For example, the Biden Administration could certify the six-months commenced on 20 July 2020 and ended on 20 January 2021 or the six-month period commenced on 20 January 2021 and would end on 20 June 2021. 

The Obama Administration when advising the United States Congress of its intention to remove the Republic of Cuba from the List of State Sponsors of Terrorism reported on 14 April 2015 that the six-month period commenced on 14 October 2014, prior to the announcement on 17 December 2014 that the United States would re-normalize diplomatic relations with the Republic of Cuba after nearing two years of secret discussions and then secret negotiations. 

There are impediments for a removal of the Republic of Cuba from the List of State Sponsors of Terrorism.  The Trump Administration expanded the definition of “terrorism” which both adds time for evaluation and complicates the evaluation process.  The chairman of the United States Senate Committee on Foreign Relations, The Honorable Robert Menendez (D- New Jersey) is of Cuban descent and all issues relating to the Republic of Cuba are personal- particularly the connectivity between a convicted murderer of a New Jersey State Police officer who escaped in 1979 from a correctional facility in New Jersey and resides in the Republic of Cuba.   

Mrs. JoAnne Chesimard remains since 2 May 2013 as the first woman to be on the FBI Most Wanted Terrorists List.  There is a US$2 million reward.  The Honorable Robert Mueller was Director of the Federal Bureau of Investigation (FBI) from 4 September 2001 to 4 September 2013. The Honorable Christopher Christie was Governor of the State of New Jersey from 19 January 2010 to 16 January 2018.

Senator Menendez was previously chairman of the United States Senate Committee on Foreign Relations from 1 February 2013 to 3 January 2015 during the Obama Administration (2009-2017) when Mrs. Chesimard was added to the FBI Most Wanted Terrorists List.  The United States Secretary of State during the period 1 February 2013 to 20 January 2017 was The Honorable John Kerry (D- Massachusetts) who served as chairman of the United States Senate Committee on Foreign Relations from 6 January 2009 to 1 February 2013. 

The Honorable Antony Blinken, United States Secretary of State, was Assistant to the President and Deputy National Security Advisor from 20 January 2013 to 9 January 2015 and Assistant to the President and National Security Advisor to the Vice President from 20 January 2009 to 20 January 2013. 

The Honorable Jake Sullivan, Assistant to the President for National Security Affairs, served as Assistant to the President and National Security Advisor to the Vice President of the United States from 26 February 2013 to 1 August 2014.  Mr. Sullivan was Director of Policy Planning at the United States Department of State from 4 February 2011 to 15 February 2013.

Federal Register
Washington DC
22 January 2020

“DEPARTMENT OF STATE [Public Notice: 11332] Republic of Cuba Designation as a State Sponsor of Terrorism (SST) In accordance with section 6(j)(1) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), and as continued in effect by Executive Order 13222 of August 17,2001, section 620A(a) of the Foreign Assistance Act of 1961, Public Law 87–195, as amended (22 U.S.C. 2371(c)), and section 40(f) of the Arms Export Control Act, Public Law 90–629, as amended (22U.S.C. 2780(f), I hereby determine that the Republic of Cuba has repeatedly provided support for acts of international terrorism. This notice shall be published in the Federal Register. Dated: January 12, 2021. Michael R. Pompeo, Secretary of State. [FR Doc. 2021–01416 Filed 1–21–21; 8:45 am] BILLING CODE 4710–AD–P” 

In 1987, the Export Administration Act (EAA) included the requirement for an annual list of state sponsors of terrorism by the United States Department of State (U.S. Code, Title 22, Sec. 2656f). 

From Congressional Research Service (CRS): “In December 2014, the President announced he would proceed over the coming months to reestablish diplomatic relations with Cuba and ease those diplomatic and economic restrictions he could, while anticipating Congress could engage in a review of sanctions codified in permanent law. At the same time, the President announced that the State Department had begun a review of Cuba’s designation on the state sponsors of terrorism list.  On April 14, 2015, the President sent a message to Congress to certify that “the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and ... has provided assurances that it will not support acts of international terrorism in the future.” This met the requirements of the statutes that form the terrorist lists; Cuba’s designation was removed on the 45th calendar day following the announcement (May 29, 2015), as the laws provide.”  

“Removal from the Lists: Statutory Requirements.  Each of the three statutes has some unique aspects to its construction, but all three have in common two possible paths for removing a foreign government from designation.”  

“The first possible option is that the President certifies and reports to Congress that (i) there has been a fundamental change in the leadership and policies of the government of the country concerned; (ii) that government is not supporting acts of international terrorism; and iii) that government has provided assurances that it will not support acts of international terrorism in the future.  In the case of the ECA, the President notifies the Speaker of the House, Chairpersons of the House Committees on Foreign Affairs, and on Banking, Housing, and Urban Affairs, and Chairpersons of the Senate Committees on Banking, Housing, and Urban Affairs, and on Foreign Relations that such changes have occurred.  The FAA’61 and AECA require the President to notify only the Speaker and the Foreign Relations Committee Chairperson.”  

“The second possible option the statutes offer is that the President, 45 days before a rescission takes effect, certifies to congressional leadership (as identified in the first option) that (i) the government concerned has not provided any support for acts of international terrorism during the preceding 6-month period; and (ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.  There is no reporting requirement to notify Congress that the clock has started ticking on the six-month period of changed behavior of the designated government. In past instances of delisting a foreign government, the Secretary of State has published a notice that the designation is under review, but the law does not require this advance notice beyond the 45-day requirement prior to issuing a rescission.”

U.S. Announces Designation of Cuba as a State Sponsor of Terrorism
Press Statement
Michael R. Pompeo, Secretary of State
January 11, 2021

“The State Department has designated Cuba as a State Sponsor of Terrorism for repeatedly providing support for acts of international terrorism in granting safe harbor to terrorists. 

The Trump Administration has been focused from the start on denying the Castro regime the resources it uses to oppress its people at home, and countering its malign interference in Venezuela and the rest of the Western Hemisphere. 

With this action, we will once again hold Cuba’s government accountable and send a clear message: the Castro regime must end its support for international terrorism and subversion of U.S. justice. 

For decades, the Cuban government has fed, housed, and provided medical care for murderers, bombmakers, and hijackers, while many Cubans go hungry, homeless, and without basic medicine.  Members of the National Liberation Army (ELN), a U.S.-designated Foreign Terrorist Organization, traveled to Havana to conduct peace talks with the Colombian government in 2017.  Citing peace negotiation protocols, Cuba has refused Colombia’s requests to extradite ten ELN leaders living in Havana after the group claimed responsibility for the January 2019 bombing of a Bogota police academy that killed 22 people and injured more than 87 others. 

Cuba also harbors several U.S. fugitives from justice wanted on or convicted of charges of political violence, many of whom have resided in Cuba for decades.  For example, the Cuban regime has refused to return Joanne Chesimard, on the FBI’s Most Wanted Terrorists List for executing New Jersey State Trooper Werner Foerster in 1973; Ishmael LaBeet, convicted of killing eight people in the U.S. Virgin Islands in 1972; Charles Lee Hill, charged with killing New Mexico state policeman Robert Rosenbloom in 1971; and others. 

Cuba returns to the SST list following its broken commitment to stop supporting terrorism as a condition of its removal by the previous administration in 2015.  On May 13, 2020, the State Department notified Congress that it had certified Cuba under Section 40A(a) of the Arms Export Control Act as “not cooperating fully” with U.S. counterterrorism efforts in 2019. 

In addition to the support for international terrorism that is the basis for today’s action, the Cuban regime engages in a range of malign behavior across the region.  The Cuban intelligence and security apparatus has infiltrated Venezuela’s security and military forces, assisting Nicholas Maduro to maintain his stranglehold over his people while allowing terrorist organizations to operate.  The Cuban government’s support for FARC dissidents and the ELN continues beyond Cuba’s borders as well, and the regime’s support of Maduro has created a permissive environment for international terrorists to live and thrive within Venezuela. 

Today’s designation subjects Cuba to sanctions that penalize persons and countries engaging in certain trade with Cuba, restricts U.S. foreign assistance, bans defense exports and sales, and imposes certain controls on exports of dual use items. 

The United States will continue to support the Cuban people in their desire for a democratic government and respect for human rights, including freedom of religion, expression, and association.  Until these rights and freedoms are respected, we will continue to hold the regime accountable.”

LINK To Complete Analysis In PDF Format

U.S. Secretary Of State Blinken Travels "Virtually" To Mexico And Canada: Topics Readout Does Not Include Cuba Or Venezuela

United States Department of State
Washington DC
25 February 2021

Secretary Blinken’s Virtual Travel to Mexico and Canada

Ned Price, Department Spokesperson

Secretary of State Antony J. Blinken will embark tomorrow on his first “virtual trip,” visiting Mexico and Canada on February 26. Secretary Blinken’s virtual travel prioritizes the health and safety of everyone involved, while demonstrating the significance of our partnerships with our neighbors and some of our closest partners.

The United States and Mexico enjoy a strong partnership, and this trip reinforces the importance of that relationship under the Biden Administration. During his trip to Mexico, Secretary Blinken will meet individually with Secretary of Foreign Affairs Marcelo Ebrard and Secretary of Economy Tatiana Clouthier. He will speak with his Mexican counterparts about our bilateral trade relationship, shared security challenges, regional migration, climate change, and other issues of mutual interest. During a visit to the Paso Del Norte port of entry — which links El Paso, Texas, and Ciudad Juarez, Mexico — Secretary Blinken and Foreign Secretary Ebrard will discuss cooperation between Mexico and the United States to manage migration flows and travel across the U.S.-Mexico border.

From Mexico, Secretary Blinken will travel virtually to Canada, with whom we enjoy a close a comprehensive bilateral relationship. We are neighbors, friends, and allies. During his visit, Secretary Blinken will follow up on the outcomes of President Biden’s meeting with Prime Minister Trudeau — his first virtual bilateral meeting as President — including the U.S.-Canada Partnership Roadmap the leaders jointly announced on Tuesday. Secretary Blinken will meet with Prime Minister Justin Trudeau, Foreign Minister Marc Garneau and other cabinet members. They will discuss a common approach to global challenges such as protecting our citizens from the pandemic and reinvigorating our economies, taking bold action on climate change, defending human rights in the Western Hemisphere and around the world, and bolstering our shared defense and security. Secretary Blinken will also meet with students to discuss opportunities and policy options for our two nations.

President Biden Continues National Emergency With Respect To Cuba

The White House
Washington DC
24 February 2021

NOTICE

CONTINUATION OF THE NATIONAL EMERGENCY WITH RESPECT TO CUBA AND OF THE EMERGENCY AUTHORITY RELATING TO THE REGULATION OF THE ANCHORAGE AND MOVEMENT OF VESSELS

On March 1, 1996, by Proclamation 6867, a national emergency was declared to address the disturbance or threatened disturbance of international relations caused by the February 24, 1996, destruction by the Cuban government of two unarmed United States-registered, civilian aircraft in international airspace north of Cuba. On February 26, 2004, by Proclamation 7757, the national emergency was expanded to deny monetary and material support to the Cuban government. On February 24, 2016, by Proclamation 9398, and on February 22, 2018, by Proclamation 9699, the national emergency was further modified based on continued disturbances or threatened disturbances of the international relations of the United States related to Cuba. The Cuban government has not demonstrated that it will refrain from the use of excessive force against United States vessels or aircraft that may engage in memorial activities or peaceful protest north of Cuba.

Further, the unauthorized entry of any United States-registered vessel into Cuban territorial waters continues to be detrimental to the foreign policy of the United States because such entry could facilitate a mass migration from Cuba. It continues to be United States policy that a mass migration from Cuba would endanger United States national security by posing a disturbance or threatened disturbance of the international relations of the United States.Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing the national emergency with respect to Cuba and the emergency authority relating to the regulation of the anchorage and movement of vessels set out in Proclamation 6867, as amended by Proclamation 7757, Proclamation 9398, and Proclamation 9699.This notice shall be published in the Federal Register and transmitted to the Congress.

JOSEPH R. BIDEN JR.
THE WHITE HOUSE
February 24, 2021

According To Libertad Act Court Filing, Carnival Corporation President/CEO Lobbied U.S. Secretary Of State Mike Pompeo About Cuba Operations

HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [1:19-cv-21724; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

HAVANA DOCKS’ REPLY IN SUPPORT OF MOTION TO COMPEL AND MEMORANDUM OF LAW ON CARNIVAL’S WAIVER OF ATTORNEY-CLIENT PRIVILEGE

Excerpts:

Carnival Corporation (“Carnival”), in shotgun fashion, has lodged twenty-nine affirmative defenses to the sole count asserted in Plaintiff Havana Docks Corporation’s (“Havana Docks”) second amended complaint.1 (D.E. 160 at 18-23.) As observed at the January 11th hearing in this case, many of these defenses are not defenses at all and should be withdrawn.2 Two of these improper defenses inject Carnival’s corporate state of mind and are therefore pertinent to Havana Docks’ motion to compel (the “Motion,” D.E. 202): the “Fourth Defense—Due Process” and the “Thirteenth Defense—Lack of Intent.”

If this case is tried, Carnival will parade out its legal department, one by one, to testify about OFAC regulations and Carnival’s purported compliance with them, and then present its CEO to testify about how the Obama Administration allegedly “encouraged” Carnival to go to Cuba. But Carnival has known about its obligations under the LIBERTAD Act and Havana Docks for many years. (Mot. at 9-11.) And through discovery in this case it is apparent that Carnival was counseled that its conduct on the Subject Property was not as lawful as it now claims in this litigation.

For example, if Carnival truly believed that its conduct on the Subject Property was lawful under the LIBERTAD Act such that it actually relied on executive branch regulations and representations to insulate it from liability under that law, then why would Carnival’s President and CEO, Arnold Donald, be lobbying the Secretary of State in February 2019 for an “enabling order policy or rule” to “clarify the lawful travel exclusion [under the LIBERTAD Act] applies to cruise ships calling at Cuban ports”? (D.E. 202-6.). [NOTE: D.E. means Docket Entry; 202-6 is currently sealed and unknown if request was by plaintiff or defendant.]

By the same token, if Carnival truly believed that its conduct on the Subject Property was lawful under the LIBERTAD Act, then why would [FOUR LINES OF REDACTED TEXT].

Contrary Carnival’s position in this litigation, someone clearly was advising Mr. Arison and Mr. Donald that Carnival’s conduct was not lawful under the LIBERTAD Act. It would be manifestly unfair to allow Carnival to create a false narrative through its presentation of “objective” evidence of Government representations, while depriving Havana Docks of the ability to rebut that showing by demonstrating that Carnival knew that, regardless of what the executive branch said or did, operating on confiscated property subject to a certified claim would expose it to liability under the LIBERTAD Act.

As set forth above and in the Motion, Carnival injected its knowledge of the law into this case. Havana Docks, thus, respectfully requests that the Court order Carnival to produce withheld evidence reflecting its knowledge of the LIBERTAD Act and OFAC regulations.

LINK To Court Filing (22 February 2021)

Libertad Act Suspension History

Title III has been suspended every six months since the Libertad Act was enacted in 1996- by President William J. Clinton, President George W. Bush, President Barack H. Obama and President Donald J. Trump.

On 16 January 2019, The Honorable Mike Pompeo, United States Secretary of State, reported a suspension for forty-five (45) days.

On 4 March 2019, Secretary Pompeo reported a suspension for thirty (30) days.

On 3 April 2019, Secretary Pompeo reported a further suspension for fourteen (14) days through 1 May 2019.

On 17 April 2019, the Trump Administration reported that it would no longer suspend Title III.

On 2 May 2019 certified claimants and non-certified claimants were permitted to file lawsuits in United States courts.

LINK To Libertad Act Lawsuit Statistics

President Biden & Prime Minister Trudeau- No Spoken Statements About Cuba Or Venezuela; Venezuela Mentioned In Written Statement; President Biden Personal Note About Juan Gonzalez

The White House
Washington DC
23 February 2021

FOR IMMEDIATE RELEASE
Remarks by President Biden and Prime Minister Trudeau of Canada Before Virtual Bilateral Meeting
Roosevelt Room (4:16 P.M. EST)

PRESIDENT BIDEN: Well, before we go on, I want to make sure you know Anthony Blinken, our Secretary of State, sitting here. And the fellow down here on the right hand side is a guy named Jake Sullivan, and he's the National Security Advisor. And the National Security Council Senior Director for Western Hemisphere, Juan Gonzalez, who usually speaks Spanish to me, which I have trouble with as well.

NOTE: Juan Gonzalez is Special Assistant to the President and Senior Director for the Western Hemisphere at the National Security Council (NSC) in The White House

I told you, Mr. Prime Minister, I took five years of French in school and college, as well. And when I -- every time I tried to speak it, I'd make such a fool of myself, I stopped trying. At least when I try Spanish and I make a fool of myself, they laugh with me. At any rate, thank you very much. And the press is about to leave the room here, and we can get to business.

Roadmap for a Renewed U.S.-Canada Partnership
Building Global Alliances

”The Prime Minister and the President affirmed their shared commitment to addressing global challenges, and reiterated their firm commitment to the United Nations, G7 and G20 as well as NATO, the WTO, and the Five Eyes community.

The two leaders discussed their shared concern about Russia’s egregious mistreatment of Aleksey Navalny and its repression of democratic processes, gross violation of Ukraine’s sovereignty and territorial integrity, and destabilizing policies around the world. They also reviewed the situations in Venezuela, Myanmar, Iran, Yemen, and the Middle East.”

Left To Right: Jake Sullivan, National Security Advisor; Vice President Kamala Harris; President Joe Biden; Secretary of State Antony Blinken; Senior Director Western Hemisphere Affairs at The National Security Council Juan Gonzalez.

Mediator Reports In Four Cruise Company Libertad Act Lawsuits: "The parties are continuing to discuss settlement." Biden Administration Might Want To Delay Re-Authorizing Cuba Itineriaries

There was a seven-word change in the most recent Mediator’s Report for each of the four Libertad Act Title III lawsuits filed by Havana Docks Corporation against cruise lines.  The most important new word is “settlement.”   

On 6 October 2020, the Mediator’s Report in each of the four lawsuits did not mention “settlement” while the 20 February 2021 Mediator’s Report included the sentence: “The parties are continuing to discuss settlement.”  Meaning, a discussion or discussions about a settlement(s) predate 20 February 2021, but for what period is unknown and to what depth the discussions progressed is unknown.  Plaintiffs had been reported previously as seeking approximately US$500 million from the four defendants. 

If the Biden Administration re-authorizes passenger cruise ships to operate itineraries that include the Republic of Cuba, the cruise companies must decide if they would individually or collectively return to the Republic of Cuba while each remain defendants in litigation.  Absent a dismissal or settlement of the lawsuits, the cruise companies would continue to be exposed to an additional count of trafficking as defined by Libertad Act for each arrival/departure to any of the three piers of the Terminal Sierra Maestra located at the Port of Havana. 

For the cruise companies, having the Biden Administration delay a decision relating to the return of the Republic of Cuba for itineraries is beneficial as it lessens commercial pressures, including those from shareholders, insurance companies, and financial institutions to settle the lawsuits. 

The Trump Administration on 2 May 2019 made operational Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).  

Title III authorizes lawsuits in United States District Courts against companies and individuals who are using a certified claim or non-certified claim where the owner of the certified claim or non-certified claim has not received compensation from the Republic of Cuba or from a third-party who is using (“trafficking”) the asset.   

Since 2 May 2019, there have been thirty-three (33) lawsuits filed some of which have been appealed, consolidated, dismissed, refiled, reversed, and transferred within districts and from district to district.  Some defendants have been dismissed, but the case continues with other defendants.   

LINK To Libertad Act Lawsuit Statistics 

HAVANA DOCKS CORPORATION, Plaintiff, v. CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINE, a foreign corporation.  Defendant. [SAME WORDING FOR EACH LAWSUIT] 

MEDIATOR’S REPORT- In accordance with Local Rule 16.2(f)(1) of the Southern District of Florida, the amended scheduling order (ECF No. 80), and the order scheduling mediation (ECF No. 87), the undersigned Mediator reports that a mediation conference was held on October 5, 2020.  All of the parties or their representatives were present at the conference with full authority.  The case did not settle, but by agreement of the parties and the mediator, the mediation was adjourned (and not impassed) ending future developments in the case.  The parties are continuing to discuss settlement.  All of the parties have agreed that following briefing of dispositive motions another mediation will occur prior to trial.  

LINK To Mediator Statement (20 February 2021) 

MEDIATOR’S REPORT- In accordance with Local Rule 16.2(f)(1) of the Southern District of Florida, the amended scheduling order (ECF No. 80), and the order scheduling mediation (ECF No. 87), the undersigned Mediator reports that a mediation conference was held on October 5, 2020.  All of the parties or their representatives were present at the conference with full authority.  The case did not settle, but  by agreement of the parties and the mediator, the mediation was adjourned (and not impassed) pending future developments in the case.   

LINK To Mediator Statement (6 October 2020) 

HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23591; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

LINK To Mediator Statement (20 February 2021)

HAVANA DOCKS CORPORATION VS. ROYAL CARIBBEAN CRUISES, LTD. [1:19-cv-23590; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Holland & Knight (defendant)

LINK To Mediator Statement (20 February 2021)

HAVANA DOCKS CORPORATION V. MSC CRUISES SA CO, AND MSC CRUISES (USA) INC. [1:19-cv-23588; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Venable (defendant)

LINK To Mediator Statement (20 February 2021)

HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [1:19-cv-21724; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

LINK To Mediator Statement (20 February 2021)

COMPLETE ANALYSIS IN PDF FORMAT

U.S. Department Of Commerce Designates Cuba As "Foreign Adversary" But That Does Not Mean It Applies To "Any Other Purpose"

United States Department Of Commerce
Washington DC
19 February 2021

Securing the Information and Communications Technology and Services Supply Chain

The list of “foreign adversaries” consists of the following foreign governments and non-government persons: The People's Republic of China, including the Hong Kong Special Administrative Region (China); the Republic of Cuba (Cuba); the Islamic Republic of Iran (Iran); the Democratic People's Republic of Korea (North Korea); the Russian Federation (Russia); and Venezuelan politician Nicolás Maduro (Maduro Regime). The provision clarifies that the Secretary's determination is based on multiple sources, including the National Security Strategy of the United States, the Office of the Director of National Intelligence's 2016-2019 Worldwide Threat Assessments of the U.S. Intelligence Community, and the 2018 National Cyber Strategy of the United States of America, as well as other reports and assessments from the U.S. Intelligence Community, the U.S. Departments of Justice, State and Homeland Security, and other relevant sources. Additionally, the provision notes that the Secretary will periodically review this list in consultation with appropriate agency heads and may add to, subtract from, supplement, or otherwise amend the list.

It is important to note that the list at section 7.4 identifies “foreign adversaries” solely for the purposes of the Executive Order, this rule, and any subsequent rules. It does not reflect a determination by the United States about the nature of such foreign governments or foreign non-government persons for any other purpose.

AGENCY: U.S. Department of Commerce.
ACTION: Interim final rule; request for comments.
SUMMARY: The Department of Commerce is promulgating regulations to implement provisions of Executive Order 13873, “Executive Order on Securing the Information and Communications Technology and Services Supply Chain” (May 15, 2019). These regulations create the processes and procedures that the Secretary of Commerce will use to identify, assess, and address certain transactions, including classes of transactions, between U.S. persons and foreign persons that involve information and communications technology or services designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary; and pose an undue or unacceptable risk. While this interim final rule will become effective on March 22, 2021, the Department of Commerce continues to welcome public input and is thus seeking additional public comment. Once any additional comments have been evaluated, the Department is committed to issuing a final rule.
DATES: Effective March 22, 2021.

LINK To Interim Final Rule In PDF Format

Ten Days Later, U.S. Department Of State Answers Reporter Question About Travel To Cuba: adding aware of issue and looking closely at it

United States Department of State
Washington DC
11 February 2021

Briefing With Mr. Ned Price:

REPORTER QUESTION: Can I follow on that, on Cuba? And this is a very specific question, so if you could – if you don’t have an answer, I understand, but if you could take it. And that is that you probably know that the Cuban Government has introduced COVID restrictions requiring people coming into the country to quarantine in hotels. Well, Americans and Cuban Americans are not allowed under – or they can, I suppose, but then they’re subject to Treasury penalties – to stay in almost all Cuban hotels. So as part of the review into the Cuba policy, is this something that you guys are looking at with an eye toward perhaps doing it more urgently than in other parts? Or are these people who are going in just SOL?

MR PRICE: You’re right. Let me take that question back. I think that our review of our approach to Cuba is very much ongoing. But let me take that question back and see if we have anything we can add.

After repeated requests, on 19 February 2021, the United States Department of State shared the following statement which it confirmed is the response provided to Mr. Matt Lee, the reporter for Associated Press (AP) who asked the question on 11 February 2021:

“We have no higher priority than the safety and security of U.S. citizens overseas. We are aware of this issue and are looking closely at the implementation of Cuba's quarantine requirements and how they may affect U.S. travelers. Our current Travel Advisory for Cuba is Level 4 -- Do Not Travel due to health and safety concerns and COVID-19-related conditions. If travel is necessary, we recommend travelers contact their travel agent to inquire about sanctions regulations and related license applications and refer further specific questions about U.S. travel regulations for Cuba to Treasury’s Office of Foreign Assets Control.”

A.P. Moller-Maersk A/S, World's Largest Container Shipping Company Is Third To Be Defendant In Libertad Act Lawsuit; Joining Crowley & Seaboard

Copenhagen, Denmark-based A.P. Moller-Maersk A/S (2019 revenues approximately US$42 billion) is the world’s largest container shipping company.

ODETTE BLANCO DE FERNANDEZ née BLANCO ROSELL; EMMA RUTH BLANCO, in her personal capacity, and as Personal Representative of the ESTATE OF ALFREDO BLANCO ROSELL, JR; HEBE BLANCO MIYARES, in her personal capacity, and as Personal Representative of the ESTATE OF BYRON BLANCO ROSELL; SERGIO BLANCO DE LA TORRE, in his personal capacity, and as Administrator Ad Litem of the ESTATE OF ENRIQUE BLANCO ROSELL; EDUARDO BLANCO DE LA TORRE, as Administrator Ad Litem of the ESTATE OF FLORENTINO BLANCO ROSELL; LIANA MARIA BLANCO; SUSANNAH VALENTINA BLANCO; LYDIA BLANCO BONAFONTE; JACQUELINE M. DELGADO; BYRON DIAZ BLANCO, JR.; MAGDELENA BLANCO MONTOTO; FLORENTINO BLANCO DE LA TORRE; JOSEPH E. BUSHMAN; CARLOS BLANCO DE LA TORRE; and GUILLERMO BLANCO DE LA TORRE VERSUS A.P. MOLLER-MAERSK A/S (a/k/a A.P. MOLLER-MAERSK GROUP); MAERSK A/S (a/k/a MAERSK LINE A/S); MAERSK, INC.; and MAERSK AGENCY U.S.A., INC [2:21-cv-00339 Eastern District of Louisiana]

Pusateri, Johnston, Guillot & Greenbaum, LLC (plaintiff)
Berliner Corcoran & Rowe LLP (plaintiff)
Fields PLLC (plaintiff)

LINK To Complaint (2/17/2121)

LINK To Libertad Act Lawsuit Statistics

Excerpts:

“As discussed more fully below, Defendant Maersk’s website touts that, since 2016, Maersk has been providing direct shipping services from Europe and Asia to Cuba, and specifically to the Port of Mariel, Cuba:

In 2016, Maersk’s operation in Cuba broke all records, seeing its vessels carry 23,094 FFE to the ports in Mariel and Santiago. Volumes came from Asia primarily but also, increasingly, from Europe via a direct service which was launched the same year.

Defendant Maersk, together with its subsidiaries and agents, also has provided direct service from the Port of New Orleans to the Port of Mariel. As discussed more fully below, infra ¶¶ 108 - 110, according to the International Maritime Organization (“IMO”), a specialized agency of the United Nations responsible for regulating shipping, the ship A/S PETRA (IMO # 9283708), while operated by Defendant Maersk A/S, sailed from the Port of New Orleans on four occasions in 2020 and called at the Port of Mariel, Cuba on January 20, 2020, January 31, 2020, May 20, 2020, and August 12, 2020, respectively. At each of the aforementioned callings at the Port of Mariel, the A/S PETRA engaged in commercial activities with the Port of Mariel and the Zona Especial de Desarollo Mariel (“ZEDM”) (a/k/a Mariel Special Economic Zone).

Upon information and belief, related to the A/S PETRA’s aforementioned trafficking voyages from the Port of New Orleans to the Port of Mariel, Defendant Maersk Agency provided, inter alia, inland service, and other logistical support, including purchasing transportation services related to those voyages.

35. The A/S PETRA was knowingly and intentionally directed by Defendants to the Port of Mariel, where the A/S PETRA for itself and on behalf of and/or at the direction of Defendants, engaged in commercial activities using or otherwise benefiting from the Confiscated Property, the claims to which are owned by Plaintiffs and without the authorization of Plaintiffs, which constitutes trafficking as defined in 22 U.S.C. § 6023(13)(A)(ii). Infra ¶ 109.”

Other Lawsuits Filed By Same Plaintiffs:

ODETTE BLANCO DE FERNANDEZ née BLANCO ROSELL, Plaintiff, v. CROWLEY MARITIME CORPORATION, Defendant. [3:20-cv-01426 Middle District Florida; Transferred To Florida Southern District 1:21-cv-20443]

Murphy & Anderson, P.A. (plaintiff)
Berliner Corcoran & Rowe LLP (plaintiff)
Fields PLLC (plaintiff)
Law Offices of John S. Gaebe P.A. (plaintiff)
Venable LLP (defendant)

ODETTE BLANCO DE FERNANDEZ née BLANCO ROSELL, Plaintiff, v. SEABOARD MARINE, LTD., Defendant. [1:20-cv-25176; Southern Florida District]

Horr, Novak & Skipp, P.A. (plaintiff)
Law Offices of John S. Gaebe (plaintiff)
Berliner Corcoran & Rowe LLP (plaintiff)
Fields (plaintiff)
Morgan, Lewis & Bockius LLP (defendant)

OFAC Fines Bitpay, Inc., US$507,375.00 For Violations Of Digital Currency Transactions Including With Cuba

United States Department of the Treasury
Washington DC
18 February 2021

"The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) today announced a settlement with BitPay, Inc., a private company based in Atlanta, Georgia, that offers a payment processing solution for merchants to accept digital currency as payment for goods and services. BitPay agreed to remit $507,375 to settle its potential civil liability for 2,102 apparent violations of multiple sanctions programs. BitPay allowed persons who appear to have been located in the Crimea region of Ukraine, Cuba, North Korea, Iran, Sudan, and Syria to transact with merchants in the United States and elsewhere using digital currency on BitPay’s platform even though BitPay had location information, including Internet Protocol (IP) addresses and other location data, about those persons prior to effecting the transactions."

LINK To Settlement Document In PDF Format

EU Exports To Cuba Decreased 30.9% From 2019 To 2020 And Imports Increased 5.07% From 2019 To 2020

The Brussels, Belgium-based European Union (EU) reports 2019 and 2020 trade data (exports and imports) with the Republic of Cuba.

2019 Exports To The Republic Of Cuba- €2,109,535,577.00
2020 Exports To The Republic Of Cuba- €1,457,885,508.00
Change: -30.9%

2019 Imports From The Republic Of Cuba- €344,352,314.00
2020 Imports From The Republic Of Cuba- €361,817,153.00
Change: +5.07%

TO – Total
01 - Live animals; animal products (chapters 1 to 5)
02 - Vegetable products (chapters 6 to 14)
03 - Animal or vegetable fats and oils and their cleavage products; prepared edible fats; animal or vegetable waxes (chapter 15)
04 - Prepared foodstuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes (chapters 16 to 24)
05 - Mineral products (chapters 25 to 27)
06 - Products of the chemical or allied industries (chapters 28 to 38)
07 - Plastics and articles thereof; rubber and articles thereof (chapters 39 to 40)
08 - Raw hides and skins, leather, furskins and articles thereof; saddlery and harness; travel goods, handbags and similar containers, articles of animal gut (other than silkworm gut) (chapters 41 to 43)
09 - Wood and articles of wood; wood charcoal; cork and articles of cork; manufactures of straw, of esparto or of other plaiting materials; basketware and wickerwork (chapters 44 to 46)
10 - Pulp of wood or of other fibrous cellulosic material; recovered (waste and scrap) paper or paperboard; paper and paperboard and articles thereof (chapters 47 to 49)
11 - Textiles and textile articles (chapters 50 to 63)
12 - Footwear, headgear, umbrellas, sun umbrellas, walking sticks, seat-sticks, whips, riding-crops and parts thereof; prepared feathers and articles made therewith; artificial flowers; articles of human hairs (chapters 64 to 67)
13 - Articles of stone, plaster, cement, asbestos, mica or similar materials; ceramic products; glass and glassware (chapters 68 to 70)
14 - Natural or cultured pearls, precious or semi-precious stones, precious metals, metals clad with precious metal, and articles thereof; imitation jewellery; coi (chapter 71)
15 - Base metals and articlaes of base metal (chapters 72 to 83)
16 - Machinery and mechanical appliances; electrical equipment; parts thereof; sound recorders and reproducers, television image and sound recorders and reproducers, and parts and accessories of such articles (chapters 84 to 85)
17 - Vehicles, aircract, vessels and associated transport equipment (chapters 86 to 89)
18 - Optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; clocks and watches; musical instruments; parts and accessories thereof (chapters 90 to 92)
19 - Arms and ammunition; parts and accessories thereof (chapter 93)
20 - Miscellaneous manufactured articles (chapters 94 to 96)
21 - Works of art, collector pieces and antiques (chapters 97 to 99)

LINK To Data In Excel Format In Euros And Kilograms (EU and Country-by-Country)

When Will New Cuba Ambassador To The United States Be Credentialed By President Biden? State Department & MINREX Have Conflicting Information

United States Department of State
Washington DC
18 January 2021

Diplomatic Corps Order of Precedence: In accordance with relevant Articles of the Vienna Convention on Diplomatic Relations, heads of diplomatic missions appear on the Diplomatic Corps Order of Precedence list in their respective classes and in the order of the date and time of assuming their duties. 

ORDER OF PRECEDENCE Reported to the Office of the Chief of Protocol as of January 18, 2021.  CHARGE D’AFFAIRES AD INTERIM FOR BILATERAL MISSIONS- Republic of Cuba: Rodney Amaury Gonzalez Maestrey (12/21/20) 

Listing by Ministry of Foreign Affairs of the Republic of Cuba as of 11 February 2021: 

ESTADOS UNIDOS DE AMERICA
Excmo. Sr. José R. Cabañas Rodríguz
Embajador Extraordinario y Plenipotenciario
Fecha de acreditación: 17/09/2015

Listing by Ministry of Foreign Affairs of the Republic of Cuba as of 11 February 2021: 

CHARGÉ D´AFFAIRES- Mrs. Lianys Torres Rivera, Ambassador. 

The Biden Administration is expected to promptly approve in 2021 H.E. Lianys Torres Rivera, former Ambassador of the Republic of Cuba to Vietnam, as Ambassador of the Republic of Cuba to the United States and be included among the first groups to the Oval Office at The White House to present (in person or virtually) their credentials to The Honorable Joseph Biden, President of the United States.      

Ambassador Torres arrived to the United States in early January 2021 during the Trump Administration.   

The United States Department of State has no information to provide on-the-record or on background as to if Ambassador Torres is now recognized as Ambassador of the Republic of Cuba to the United States or when Ambassador Torres will present her credentials to President Biden.  

The decision by the Biden Administration to accept and to accept promptly a replacement to manage the Embassy of the Republic of Cuba in Washington DC should not be mischaracterized, misunderstood by those who support a return to the commercial, economic, and political bilateral landscape in existence prior to 20 January 2017.  

The symbolism will represent more about what can be rather than what was in the bilateral relationship.  The Biden Administration message- there can and should be official dialogue, but that dialogue needs to amount to more than more dialogue and, critically, the Republic of Cuba must address internal issues and issues relating to Venezuela.  

The Biden Administration has also not reported publicly if it intends to nominate an Ambassador of the United States to the Republic of Cuba.  LINK To Post

United States companies remain hopeful for a change in bilateral atmospherics, telemetry and, importantly, for the government of the Republic of Cuba to continue with its commercial, economic, and political transformation which may provide opportunities for United States companies to have more than a presence in the marketplace for incoming visitors.    

There remain from 2015 commercial opportunities for product and service importation, product and service exportation, product and service offerings, and direct participation (including investment, loans, etc.) in the self-employed sectors authorized during the Obama Administration which the government of the Republic of Cuba neither encouraged nor approved.  Recent decisions by the government of the Republic of Cuba to merge its two currencies and to expand the range of self-employed categories may provide additional opportunities for United States companies.  There also remain for the Biden Administration the issue of the 5,913 certified claims valued at approximately US$1.9 billion.   

Crucial for the new Ambassador of the Republic of Cuba to the United States to embark upon a structured outreach to those who do not support a functioning bilateral relationship between the United States and the Republic of Cuba.  Resist the natural gravitational pull to engage solely with individuals (public sector and private sector) and companies and organizations who provide positive messaging reinforcement.   

Diplomatic Background  

Ambassador Jose Ramon Cabanas Rodriguez from 2012 to 2015 served as Chief of the Cuban Interests Section in Washington DC.  He retained the title of ambassador due to posting in Austria from 2001 to 2005.  On 17 September 2015, he presented credentials to The Honorable Barack Obama (D), President of the United States (2019-2017) and became Ambassador Extraordinary and Plenipotentiary of the Republic of Cuba to the United States.    

The last United States ambassador to the Republic of Cuba was The Honorable Philip Bonsal (1903-1995) who arrived 3 March 1959 and departed 28 October 1960.  There had been twenty ambassadors from 1902 to 1960.  

Since 1960, according to the United States Department of State, there has been one Chargé d’Affaires ad interim, fourteen Principal Officers, and two Chargé d’Affaires.  

There are approximately 11.3 million Republic of Cuba nationals residing on 780-mile-long archipelago ninety-three miles south of from Key West, Florida.  There are approximately 2.3 million individuals of Cuban descent residing in the United States with the majority in Florida and New Jersey. 

LINK To Analysis In PDF Format

PREVIOUS POST: 

Cuba Expected To Install New Ambassador In Washington- First Woman December 22, 2020

LVMH Adds To Its Cuba Rum Portfolio With "Eminente Reserva"

Paris, France-based LVMH Moët Hennessy Louis Vuitton (2019 revenues approximately US$60 billion).

The Drinks Business
London, United Kingdom
15 February 2021

The new brand, which is being officially launched in the UK now by Moët Hennessy (the drinks division of LVMH), is a near £50 Cuban rum with a seven-year age statement that’s been blended for sipping on its own; over ice or in cocktails.

Speaking during an online launched of Eminente Reserva on Friday, co-founder of the top-end rum, Briac Dessertenne, said, “We hope to challenge the usual perception of Cuban rum and Cuba as a whole.” This is because of the rum’s upmarket positioning, style, sourcing and imagery, he explained.

Speaking further about the latter, Eminente co-founder and brand director, Camille de Dominicis, stressed that the packaging was novel for a Cuban product, before revealing the inspiration behind the rum’s appearance, which features a crocodile logo and ribbed glass, resembling the reptile’s skin.

“When people think about Cuba they think of the colourful streets, the cigars, the revolution; there is an amazing visual patrimony for Cuba, which is very related to what you see on postcards… but when we went to a distiller on the centre of the island, we realised it had much more to offer,” she said.

Among these elements is the country’s high level of endemic species, including the Cuban crocodile, which the islanders are trying to protect. It also gives its name to the local term for Cuba, which is the Isla del Cocodrilo, because the shape of island resembles the reptile when see from above, and it is this image that Eminente has chosen for its logo.

Other differences relate to the rum itself, which takes its inspiration from nineteenth century flavours of Cuban rum – these historical rums tended to be “more intense”, according to de Dominicis.

It also relates to the rum’s creator, César Martí, not only because he is considered especially talented, but also due to the location of his upbringing on the island. Martí is one of the island’s ten Maestros Roneros (master Cuban rum distillers) – the youngest ever to acquire this status – and he grew up in Cuba’s Central Province of Villa Clara, where he was born into a family of sugar cane farmers.

It is in this part of the island where the rum is distilled, giving a specific character to the spirit, according to de Dominicis. “The taste of rum from the centre of the island is a bit unknown,” she explained Continuing she said, “When you try and summarise the two main styles of Cuban rum, one is the western style, called occidente, the source of Havana Club, and the other is the eastern style, or oriente, and our central style is a mix of the two,” she said.

While the western style is generally heavy and robust, and designed for making cocktails, the eastern style is generally lighter, fruitier and made for sipping on its own. As for the central style, that tends to be “where both frontiers meet”, according to UK brand manager for Eminente, Max Helm.

“It is a rum with versatility; it is great for cocktails because it has structure, but at the same time it has fruit, making it great for sipping as well,” he said. Continuing he commented, “You don’t see many central styles coming out of Cuba,”which makes Eminente unusual in the world the world of Cuban rum.

Mr. Cesar Marti

There are other distinctive elements to the rum too. These relate to the “fully-ripe” sugar cane used for the rum-making process, ensuring that the base material has a high sugar content, along with the short fermentation times employed, which yield something “light and fruity”. Then there’s the rum’s minimum ageing period of seven years in white oak barrels, which provides depth and richness to the product.

Considering that one year of ageing in Scotland would be the equivalent to three years in Cuba’s tropical conditions, the seven-year period is significant. But a “massive part of Eminente” in terms of its impact on the character of the rum is the high content of “pre-revolution aguardiente,” according to Helm, which reaches a new high of 70%, with the remaining 30% being Cuban light rum.

According to Helm, it is more normal to have less than 20% of agudiente de cana in a Cuban rum.
“This [high level of agudiente] is unseen before, and it gives lot of depth, complexity and length to the rum,” he said.

Referred to as ‘the soul of Cuba’, aguardientes are the most flavourful and complex eaux-de-vie that the island produces from molasses distilled to 75% ABV, which are then aged in white oak barrels that were once used for ageing whisky, blended and aged again with traditional light Cuban rum distilled to 96% ABV. The aguardiente brings the complexity and depth of aromas, while the light rum adds vitality, thanks to the strength of the alcohol.

Eminente Reserva is aged for a minimum of seven years and is one of only a handful of Cuban rums to be classified ‘Denominación de Origen Protegida’ (D.O.P. Ron de Cuba). This status is granted by a Regulatory Council: the D.O.P. Ron de Cuba which dictates strict rules to ensure the authenticity and high standards of Cuban rum. Eminente Reserva is available now from www.Eminente.com with an RRP of £47.

LINK To Related Posts:

Diageo Of UK Creates Joint Venture To Distribute Rum Brand From Cuba; No Mention Of Impact By Libertad Act

Pernod Ricard

Ministry of Labor And Social Security Of Cuba Lists 124 Activities Unavailable To Citizens

Havana Times
Managua, Nicaragua
13 February 2021

Excerpts: 

HAVANA TIMES – “On February 10th, Cuba’s Ministry of Labor and Social Security published a list of work activities banned within the country’s self-employment sector. According to the document published on the Ministry’s website there are 124 activities listed. There is a disclaimer saying that “the list can be amended as it is reconciliated with legal regulations.” The regulations are still being drafted. 

Banned activities include some that were in a legal limbo up until now, such as sound recording and music editing. A lot of national music is being produced today in independent studios, which is then distributed via alternative channels to the Weekly Package. 

Art galleries, travel agencies and tour operators, research activities and businesses that provide support services for other companies, all fall into the banned category now. 

Other banned activities on the list are the wholesale of spare parts, pieces and accessories for automobiles, renting recreational and sports equipment – excluding bicycles.  

Legal activities and accounting, except for bookkeeping, are still banned professional activities. The same goes for architecture and engineering-related activities. Point 83 stipulates that other professional and technical activities are also banned, with the exception of translators of documents and certified translators and interpreters, design and photography activities. 

To learn more about the activities that are authorized within this sector, you can search for them on the National Classifier of Economic Activities, which is also available on the Office of Statistics and Information website. When you find the activity you wish to exercise, find the four-digit number that precedes it. If this number does not appear on the MTSS’ list of banned activities, then it is allowed. 

Management and organization of concert venues, theaters, museums, physical or digital libraries; as well as zoos and natural areas, are all included on the banned activities list that was recently published. 

While managing sports areas isn’t allowed, you can create and run “muscle/body sculpting gyms” and rent out swimming pools. You cannot create or run sports clubs for football, chess, boxing swimming, shooting, athletics or carry out diving-related activities as a self-employed worker.  Professional business associations and union-related activities are also explicitly banned. 

Within the sector of human health and social assistance, hospital, doctor and dentist services, as well as nursing care, are all banned for private employment. 

In the section Supplying electricity, gas, steam and air conditioning, electricity generation, transmission and distribution are all banned. The exceptions being biogas and supplying steam and air conditioning. 

The new way to get a license to be self-employed will supposedly involve less steps. Economist Pedro Monreal said this simplifies the process considerably “by authorizing complete sections, with one-off exceptions.” However, he added that nothing had yet been said about a regulation for creating small and medium-sized enterprises (PYMEs). 

The publication of banned activities for the self-employed is the first step in reforms to Cuba’s private sector, announced by the Ministery of Labor and Social Security. According to what minister Marta E. Feiro Cabrera explained on the TV show Mesa Redonda, regulations for the license-granting process will be published this month. 

Once these regulations are implemented, all self-employed workers will need to reregister, a gradual process via the Ventanilla unica (one window) platform.  

Among those who are now able to receive licenses again are computer programmers, who hadn’t been able to receive new licenses since August 2017.” 

Ministry of Labor and Social Security: “The National Classifier of Economic Activities (CNAE) is integrated into 4 levels of aggregation that are divided into 21 sections identified by a one-letter alphabetic code, subdivided in turn into 87 divisions, 237 groups, 421 classes, which in total contain 2,110 activities, limiting totally or partially some of these structures, or only certain activities, which the proposal proposes to limit 124 of them. The list does not include activities considered illegal for all economic actors or expressly prohibited by law, such as: hunting and fishing of prohibited and endangered species, exploitation of endemic plants, child employment and forced labor, among others. You can download the file from the Downloads Menu of this website in the Legal Regulations section in the Task Order field or through the following link: Activities where self-employment is not allowed” 

LINK To List

LINK: https://www.mtss.gob.cu/noticias/actividades-donde-no-se-permite-el-ejercicio-del-trabajo-por-cuenta-propia

The Pathway For Biden To Change Trump Cuba Policies May Be Through Cuban Passports And COVID-19

The Pathway For Biden To Change Trump Cuba Policies May Be Through Cuban Passports And COVID-19 

The Trump Administration and [Miguel] Diaz-Canel Administration may have provided the Biden Administration with a basis to alter travel regulations and remittance transfer regulations. 

One Quarantine Hotel Was Managed By Marriott Before Trump Administration Revoked Its License; Hotel Owned By Cuba Military Yet Not On State Department Restricted List  

The impact of COVID-19 in 2020 and thus far in 2021 upon the Republic of Cuba continues to constrain individuals of Cuban descent residing in the United States from visiting their families and friends and from delivering efficiently remittances from the United States to the Republic of Cuba. 

The Republic of Cuba is requiring all non-Cuban citizens to quarantine for five nights and six days in a designated “quarantine hotel.” LINK To Regulations  LINK To Regulations (English Translation)

Thus far in 2021, the overwhelming majority of arrivals from the United States to the Republic of Cuba seeking to visit family and friends are individuals of Cuban descent possessing a United States passport and a passport issued by the Republic of Cuba.  The Trump Administration restricted United States regularly-scheduled airlines to the Jose Marti International Airport (HAV) in Havana.    

The OFAC maintains, in a view that some argue is extraerritorial, that so long as an individual is “subject to United States jurisdiction” the individual must adhere to all regulations impacting activities and transactions relating to the Republic of Cuba.  

US Department of State
Washington DC
11 February 2021

“All U.S.-Cuban dual citizens should note that the Government of Cuba treats U.S. citizens born in Cuba as Cuban citizens and may subject them to a range of restrictions and obligations. The Cuban government requires U.S.-Cuban dual citizens who departed Cuba on or after January 1, 1971 to enter and depart Cuba using a Cuban passport. Using a Cuban passport for this purpose does not jeopardize one’s U.S. citizenship; however, such persons must use their U.S. passports to enter and depart the United States. Cuban-Americans who departed Cuba before January 1, 1971 may travel to Cuba on their U.S. passport but must apply for an HE-11 visa from the Cuban Embassy. Cuban authorities do not always notify the U.S. Embassy of the arrest of dual nationals and may deny U.S. consular officers access to them.” 

Four Changes 

1. The Biden Administration agrees on a temporary basis to permit individuals possessing a passport issued by the Republic of Cuba to be for the sole purpose of travel-related transactions to and within the Republic of Cuba, not subject to certain regulations issued by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury and United States Department of State. 

2. Travelers of Cuban descent possessing a passport issued by the Republic of Cuba would be permitted on a temporary basis to use certain hotels on the “List of Restricted Entities and Subentities Associated With Cuba maintained by the United States Department of State. 

3. The United States Department of Transportation (DOT) would again authorize commercial airlines to service all airports in the Republic of Cuba provided all passengers possess a passport issued by the Republic of Cuba.  

4. Denver, Colorado-based Western Union Company (2019 revenues approximately US$5.2 billion) would again be permitted, on a temporary basis, to operate money transfer services from the United States to the Republic of Cuba provided the sender presents a passport issued by the Republic of Cuba.  Republic of Cuba government-operated Financiera Cimex (Fincimex), which had been the distribution partner in the Republic of Cuba for Western Union Company until prohibited by the Trump Administration in 2020, would again be licensed by the OFAC.    

In 2020, The List of Restricted Entities and Subentities Associated With Cuba added Republic of Cuba government-operated American International Services (AIS) and Republic of Cuba government-operated Financiera Cimex (Fincimex), a Panama-registered subsidiary of Corporacion Cimex, a subsidiary of GAESA which is controlled by the FAR.   

US Department of State
Washington DC
11 February 2021

Briefing With Mr. Ned Price: 

REPORTER QUESTION: Can I follow on that, on Cuba? And this is a very specific question, so if you could – if you don’t have an answer, I understand, but if you could take it. And that is that you probably know that the Cuban Government has introduced COVID restrictions requiring people coming into the country to quarantine in hotels.  Well, Americans and Cuban Americans are not allowed under – or they can, I suppose, but then they’re subject to Treasury penalties – to stay in almost all Cuban hotels.  So as part of the review into the Cuba policy, is this something that you guys are looking at with an eye toward perhaps doing it more urgently than in other parts? Or are these people who are going in just SOL? 

MR PRICE: You’re right.  Let me take that question back. I think that our review of our approach to Cuba is very much ongoing. But let me take that question back and see if we have anything we can add.  

Hotel Background 

In 2016, the OFAC issued two licenses to Bethesda, Maryland-based Marriott International, Inc. (2019 revenues approximately US$21 billion) to manage two properties in the Republic of Cuba.   

Both properties (one through Starwood Hotels and Resorts Worldwide LLC) were in the city of Havana, the 186-room Four Points by Sheraton Havana (employed approximately 125 Republic of Cuba citizens) and 83-room Hotel Inglaterra (delayed opening without public explanation from December 2016 to December 2017 to December 2019 to “sometime” in 2020). 

The first (and only to be managed) was Hotel Quinta Avenida rebranded as Four Points Sheraton Havana.  

Both properties were and remain owned Republic of Cuba government-operated Grupo de Turismo Gaviota S.A., a subentity of Grupo de Administracion Empresarial S.A. (Enterprise Management Group; GAESA) which is controlled by the controlled by the Revolutionary Armed Forces of the Republic of Cuba (FAR). 

In June 2020, “Marriott International has been notified by the U.S. Department of Treasury that we must wind down our operation of the Four Points Sheraton [formerly Hotel Quinta Avenida] in Havana, Cuba by August 31 [2020], and that we will not be permitted to open other hotels in Cuba that have been in preparation. We entered the Cuban market in 2016, with permission from the U.S. government. Our operating license was reviewed and renewed in 2018. We have recently received notice that the government-issued license will not be renewed, forcing Marriott to cease operations in Cuba. Marriott continues to believe that Cuba is a destination that travelers, including Americans, want to visit. Marriott looks forward to reopening in Cuba if and when the US Government gives us permission to do business there again.”  

A creation of the Trump Administration and managed by the United States Department of State: “List of Restricted Entities and Subentities Associated With Cuba contains entities and subentities controlled by the Cuban military, intelligence, and security services or personnel. Direct financial transactions with these entities and subentities are generally prohibited because they would disproportionately benefit those services or personnel at the expense of the Cuban people or private enterprise in Cuba.”  An important note to the list is: “*** Entities or subentities owned or controlled by another entity or subentity on this list are not treated as restricted unless also specified by name on the list. ***” LINK: https://www.state.gov/cuba-sanctions/cuba-restricted-list/ 

The list effective 8 January 2021 includes most hotels located in the Republic of Cuba, but does not include the Hotel Quinta Avenida.  The list includes “Holding Company” Gaviota S.A. which owns the Hotel Quinta Avenida.  The list includes Fincimex, a subentity of Republic of Cuba government-operated Corporacion Cimex S.A., a subsidiary of GAESA which is controlled by the FAR.   

Cuba Travel Services
Newport Beach, California
12 February 2021

Traveling to Cuba from the US 

From January 10, 2021, travelers are required to present proof of a PCR test with negative results, taken in your departing country in the last 72 hours. It is recommended you bring two physical copies of your PCR test result with you. 

In addition, Cuba requires all passengers to complete a PCR test upon arrival in Havana International Airport. The Cuba Sanitary Fee is $36.25 which includes a $6.25 processing fee.* Tickets booked after December 1, 2020 should have this included in the ticket price. Please check this with your airline.  *American Airlines passengers that have purchased their tickets to Cuba from Miami prior to December 1, 2020, can process their Cuba Health Screening Fee online prior to departure. 

All non-Cuban citizens who arrive in Cuba must quarantine for 5 nights and 6 days in a designated ‘Quarantine hotel’. Travelers are encouraged to purchase their Quarantine Hotel Package online prior to their departure date. 

Traveling to the US from Cuba: Following a new CDC (Atlanta, Georgia-based Centers For Disease Control) order effective January 26, 2021, all air passengers arriving to the US from a foreign country are required to get tested for COVID-19 infection no more than 72 hours before their flight departure time. You are also required to provide proof of the negative result or documentation of having recovered from COVID-19 to the airline before boarding the flight.  In addition, the CDC requires arriving air passengers to test 3-5 days after travel AND stay home for 7 days after travel. Even if you test negative, stay home for the full 7 days. 

Quarantine Package 

Starting February 6, 2021, all non-Cuban citizens who arrive in Cuba must quarantine for 5 nights and 6 days in a designated ‘Quarantine hotel’.  You will be required to take a second PCR test on the 5th day before leaving your hotel. 

Passengers are encouraged to purchase their Quarantine Hotel Package online prior to their departure date. Purchasing the hotel accommodations in advance of travel allows you to do so securely with a U.S. Credit Card and avoid any issues upon arrival with additional fees associated with alternative forms of payments or lack of options for payment as due to current health concerns regarding COVID hotels may not accept cash payments. 

Currently travelers traveling from the United States may only stay at accommodations that are not included on the U.S. State Department prohibited accommodations or restricted entities list. 

Hotel Quinta Avenida is one of the Cuban designated Quarantine Corridor Hotels and is not currently on one of the State Department lists of prohibited or restricted lists. 

This Quarantine Hotel Package includes: 5 nights and 6 days stay at Quinta Avenida Habana Hotel; A set AP meal plan with breakfast, lunch, and dinner for the entirety of your 5-night stay*; One-way transfer from Jose Marti International Airport Terminal 3 to your designated hotel Quinta Avenida.  Hotel Quinta Avenida is hotel is located in the west of Havana, Cuba, in the modern and popular Miramar residential area. The hotel sits overlooking the Ecological Park and the Caribbean Sea.  *If you are vegetarian, please notify hotel staff upon check-in. A la carte items including alcoholic beverages are not included within this package. All meals will be brought up to the room. 

Please note that this package is priced per person and an administration fee of $30.00 will be applied to each booking. This package is not refundable.  Guests must isolate in their hotel room at all times. No visitors are allowed. Upon your arrival at Havana Airport, you will be required to take a PCR test of which you will receive the results during your stay at the hotel.

LINK To Complete Analysis In PDF Format

Biden Administration Continues Focus Upon Injuries To U.S. Diplomats At Embassy In Havana

United States Department of State
Washington DC
11 February 2021

Daily Briefing with Mr. Ned Price

QUESTION: Thank you. I have a couple questions on Latin America. The first one is about Cuba. I know the government is currently reviewing the policy towards Cuba, but so far, has the new administration found any evidence that the Cuban Government was responsible – behind the attacks in the embassy in Havana? And also, what is the Biden administration doing to find out what was the cause of those attacks?

MR PRICE: Great. Well, I appreciate the question, and I would start by saying that – and it’s something I’ve said here before – is that, of course, we have no higher priority than the safety and the security of U.S. personnel, their families, other U.S. citizens, both, of course, in this country and around the world. The U.S. Government is working to determine what happened to our staff and their families and to ensure the well-being and health of our officials going forward. That investigation remains underway. It remains a high priority, and I can tell you that during the transition period, this was one of the first briefings, comprehensive briefings that, as Secretary-designate at the time, Secretary-designate Blinken requested of the transition team. And he has, in fact, received updates during his time as Secretary of State. He has made clear that this is a priority for him, and those updates will continue going forward.
What I can also say is that – and the department established an interagency task force to coordinate the government’s response to these incidents in May of 2018. More recently, and in fact, just this week, to reassert the department’s leadership and responsibility for U.S. Government personnel overseas, we elevated, as I said, this week the coordinator role to a senior-level position so that a high-level official will be empowered to advise senior departmental leadership, coordinate the department’s interagency response to the health security incidents, and to provide continuing support to affected personnel. This advisor will be positioned in a senior role and will report directly to the department’s senior leadership to ensure, as I said, that we continue to make significant strides to address this issue and to ensure our people are receiving the treatment they need. We’ll have additional details on this new role in the coming days, I would expect.

QUESTION: Ned, I want to ask a Cuba question, if I may.

MR PRICE: Okay.

QUESTION: Okay. A month ago today, in one of its last acts, the former administration listed Cuba as a state sponsor of terrorism. Can you update on what is happening? Are you going back to a detente with Cuba? Are diplomats going to be going back, some of the —

MR PRICE: Yeah.

QUESTION: — diplomats that were withdrawn? Just update us on the Cuba situation.

MR PRICE: Well, I think when it comes to Cuba, we have – there are broad principles at play for our orientation towards the country. First, support for democracy and human rights will be at the core of our efforts through empowering the Cuban people to determine their own future. And second, we believe that Americans and especially Cuban Americans are the best ambassadors for freedom and prosperity in Cuba. You’ve heard me say in this briefing, in previous briefings, again, that we are committed to making sure that human rights are a core pillar of foreign policy. We are redoubling our dedication to human rights throughout the hemisphere, and I think that will, again, be a North Star as we review our approach to Cuba going forward.

QUESTION: You have a lot of north stars going on. Can I —

MR PRICE: I think every time it’s been interests and values, and interests and values are inextricably linked when it comes to our human rights.

QUESTION: Can I follow on that, on Cuba? And this is a very specific question, so if you could – if you don’t have an answer, I understand, but if you could take it. And that is that you probably know that the Cuban Government has introduced COVID restrictions requiring people coming into the country to quarantine in hotels. Well, Americans and Cuban Americans are not allowed under – or they can, I suppose, but then they’re subject to Treasury penalties – to stay in almost all Cuban hotels. So as part of the review into the Cuba policy, is this something that you guys are looking at with an eye toward perhaps doing it more urgently than in other parts? Or are these people who are going in just SOL?

MR PRICE: You’re right. Let me take that question back. I think that our review of our approach to Cuba is very much ongoing. But let me take that question back and see if we have anything we can add.

In Lawsuit Filed In Spain Against Melia Hotels, Plaintiff Argues That Government Of Cuba Is Not Required To Be A Defendant; Melia Hotels Says Otherwise

On 29 May 2019, descendants of Mr. Rafael Lucas Sanchez Hill, acting as Central Santa Lucia L.C., filed a lawsuit in Spain seeking US$10 million from Palma de Mallorca, Spain-based Melia Hotels International S.A. (2019 revenues approximately US$2 billion) seeking damages for the use of land upon which a hotel is located in the Republic of Cuba. The lawsuit is not using provisions of Title III of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).  

On 11 January 2021, the judge ordered the inclusion of the government of the Republic of Cuba and Gaviota S.A., but not Gesmesol S.A.  Plaintiff attorneys objected as the complaint alleges “unjust enrichment” only against Melia Hotels International S.A.  Plaintiff attorneys did not appeal the order to avoid the risk of a dismissal.  Plaintiff attorneys are serving the government of the Republic of Cuba and Gaviota S.A. through the required diplomatic channels.  The government of the Republic of Cuba may claim sovereign immunity, but Gaviota S.A. is subject to the jurisdiction of the court.  The government of the Republic of Cuba and Gaviota S.A. are not subject to plaintiff claim of “unjust enrichment,” but are deemed necessary parties by the judge since they are responsible for the initial expropriation and current operation of property of plaintiff.  

On 10 February 2021, Central Santa Lucia L.C. filed its response to the court.  The focus of the response was the government of the Republic of Cuba may only be added as a defendant if the government of the Republic of Cuba consents to being a defendant; the plaintiff does not believe the government of the Republic of Cuba needs to be a defendant while Melia Hotels International S.A. believes that the government of the Republic of Cuba should be a defendant.   

LINK To Court Filing By Central Santa Lucia L.C. (2/10/2012)

LINK To Court Filing By Melia Hotels International, S.A. (1/28/2021)

LINK To Previous Post: Court In Spain Requires Government Of Cuba And Gaviota Tourism Company Be Included In "Unjust Enrichment" Lawsuit Against Melia Hotels International (16 January 2021)

New Carnival Corporation Libertad Act Lawsuit Discovery Documents Go Back Nearing Twenty Years

HAVANA DOCKS CORPORATION VS. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINES [1:19-cv-21724; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Jones Walker (defendant)
Boies Schiller Flexner LLP (defendant)
Akerman (defendant)

HAVANA DOCKS’ MEMORANDUM OF LAW ON CARNIVAL’S WAIVER OF ATTORNY-CLIENT PRIVILEGE (2/8/2021)

Exhibit D- CARNIVAL CORPORATION’S AMENDED INITIAL DISCLOSURE PURSUANT TO FED. R. CIV. P. 26(a)(1)(A)

DEFENDANTS CORPORACIÓN CIMEX, S.A. (CUBA), CORPORACIÓN CIMEX, S.A. (PANAMA) AND UNIÓN CUBA-PETRÓLEO’S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS AND FOR OTHER RELIEF (2/8/2021)

HAVANA DOCKS’ MOTION FOR LEAVE TO FILE EXHIBITS TO MOTION TO COMPEL UNDER SEAL (2/8/2021)

ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR LEAVE TO FILE EXHIBITS TO MOTION TO COMPEL UNDER SEAL (2/9/2021)

Exhibit E
Exhibit H
Exhibit I
Exhibit L
Exhibit M