Archive for the ‘Cuba Sanctions’ Category


May

4

Banks Caught Between Scylla (OFAC) and Charybdis (Customer Wrath)


Posted by at 2:38 am on May 4, 2016
Category: Cuba SanctionsOFAC

Industrial Bank Clock by Clif Burns via Flickr https://flickr.com/clif_burns [All Rights Reserved]

By now, we’ve all seen these stories. A slightly dimwitted, possibly drunk, prankster writes “I ❤ ISIS” in the memo line of a check or in the description field of an online payment service and then is shocked, shocked to learn his check or payment has not been processed. The prankster immediately takes to Twitter, swears on a stack of Marvel comic books that he’s not a terrorist, laments the utter stupidity of his bank or payment provider and then waits for a horde or reporters to gather on his steps. Within hours, reporters, bloggers and TV news crews have breathlessly reported the injustice of it all, with almost all of them saying (erroneously) that OFAC (rather than the bank) had seized the funds and with the prankster now lamenting that, as a result of this seizure, his third cousin in Venezuela will not be able to pay for the drug she needed to cure a rare river parasite infestation and would likely die in a matter of days, if not hours. Reddit then stirs up its gang of Internet trolls who vow revenge the minute they can take a break from playing Halo LVII.

It’s about time to step back from this wave of mass hysteria and take stock of what is going on here and how we got where we are. This excellent article in the Tampa Bay Tribune, besides quoting my friend Peter Quinter, sheds some light on what is going on. It starts with the story of a merchant who sells fedoras, guayaberas and other Cuban-style articles made wholly outside Cuba but sold through a site called MyCubanStore.com. Even though none of the merchandise sold is Cuban, customer payments, the merchant claims, are regularly seized or held up. The article notes that once OFAC whomped one payment service with a massive fine, the payment services and banks did what any sane business would do: they started erring on the other side, holding up, questioning or blocking anything vaguely suspicious.

Frankly, if you were in the bank or payment provider’s shoes, with OFAC standing behind you wielding an enormous hatchet and threatening mayhem if you clear as much as a nickel in error, wouldn’t you do the same thing? You want to call your store Havana Hats or Tehran Trinkets, then get used to some cash flow issues or pick another name. No one is going to risk a massive fine to clear a 50 cent fee on a $10 order from one of your customers. The answer here is not to shame the banks and the payment providers. Rather it is to insist that OFAC settle down and take a more measured approach to this issue, perhaps even issue some reassuring guidance assuring banks and others involved in clearing payments. Even that might not settle down a shell-shocked industry.

In the meantime, people, please find some other way to amuse yourselves besides seeing whether you can slip references to hardened terrorists past your local bank. Take a walk, read a poem, tutor a school kid, learn to speak Chinese, or listen to all the Shostakovich symphonies in order. If you want to play a prank, call up CVS and ask them if they have Prince Albert in a can.

Photo Credit: Copyright Clif Burns 2013 (www.clifburns.net)

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Copyright © 2016 Clif Burns. All Rights Reserved.
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Apr

28

Two Heads Are Not Always Better Than One


Posted by at 9:22 am on April 28, 2016
Category: BISCuba SanctionsOFAC

Havana by Bryan Ledgard [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/nwFDPh [cropped and processed]

The Office of Foreign Assets Control (“OFAC”) last week updated its Cuba FAQs with this perplexing little blurb that can only charitably actually be called an “answer” or the “A” in FAQ.

68. May a person subject to U.S. jurisdiction export or reexport to Cuba items that include U.S.-origin content, but are not 100 percent U.S.-origin?

Persons subject to U.S. jurisdiction may engage in all transactions ordinarily incident to the exportation or reexportation of 100 percent U.S.-origin items from a third country to Cuba, consistent with the export licensing policy of the Department of Commerce. Items that are not 100 percent U.S.-origin would require OFAC authorization, which would be subject to certain statutory restrictions.

This is nothing more than a paraphrase of section 515.533(a)(1) of the Cuban Assets Control Regulations. In fact, the FAQ might have been more clearly stated and just as useful if it was written this way:

68. Do you really mean what you say in section 515.533(a)(1)?

Yes.

Of course, the FAQ neatly dodges the ugly truth that if the item is 99 percent U.S.-content, then you will need a license from both BIS and OFAC to reexport that item from a foreign country to Cuba. You want real export reform? Here’s where you start. There is no need in this instance, or ever in any other instance, for two federal agencies to decide whether something can be exported. Of course, you could avoid the double license requirement by shipping the item from the third country to the U.S. before exporting it to Cuba in which case you will only need the BIS license. This workaround further illustrates how absurd the double licensing requirement is here.

There is a second ugly truth that the FAQ dodges. Both the FAQ and section 515.533(a)(1) imagine that the phrase “100 percent U.S.-origin items” actually means something and can be determined to be true or false with respect to any given product. Nowhere in OFAC’s rules, or FAQs, or website, or presumably even on scraps of paper on the floor of OFAC’s basement is there any guidance as to how to determine U.S. content. Anyone who has ever struggled with this issue in its many contexts (including customs country of origin rules) will realize that there are a number of ways to analyze such a question, based on tariff shift rules, substantial transformation rules or the FTC’s “substantially produced in” rule. And often, if not almost always, each of these rules will result in a different country of origin for a product.

Take this example: apples grown and packaged in the United States are packaged in boxes made in the United States with cardboard imported from Canada. A substantial transformation rule might say that the box was U.S. origin; a tariff shift rule might say that it was not; and the substantially produced test would also probably say that it was not. Under the tariff shift rule, BIS licenses the reexport; using the others then both may have to license the re-export.

Here’s a harder case: take the same example above but with the box made in the United States with U.S. cardboard made from U.S. trees and printed with ink made in the United States, although one of the chemicals in the ink is imported from China. Probably under all the tests described above, the packaged apples would be 100 percent origin. Still, there is a Chinese chemical in the ink on the box. Without BIS or OFAC committing to any of the three tests described above, this is not a 100 percent origin U.S. product.

That being said, there are probably no 100 percent origin U.S. products (short of unpackaged agricultural produce without foreign-produced pesticide residue). In that case, you always need both licenses for re-exports and there was really no need at all — unless there was some desire to confuse — for Cuba FAQ 68.

Photo Credit: Havana by Bryan Ledgard [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/nwFDPh [cropped and processed]

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Copyright © 2016 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

Apr

14

No Cuban-Americans Allowed


Posted by at 10:10 pm on April 14, 2016
Category: Anti-BoycottBISCuba Sanctions

Fathom Cruise Ship via https://www.fathom.org/wp-content/uploads/2016/03/Adonia-500x325.jpg [Fair Use]

On Tuesday of this week two Cuban-born residents of Florida filed a lawsuit against Carnival cruise lines and its subsidiary Fathom Travel for violating their civil rights by refusing to book passage for them on a cruise ship from Miami to Cuba. The companies based the decision on the plaintiffs’ national origin: both were born in Cuba and Cuba currently prohibits anyone born in Cuba from traveling to Cuba from the United States (or anywhere else) by boat. Persons of Cuban origin may only travel to Cuba by air. (If you wonder about the reason behind this policy, it’s obviously because you are unaware that Castro’s slogan “Socialismo o Muerte!” was originally simply “Viaje Aéreo o Muerte!“)

As the ruckus commenced in Little Havana in Miami, the cruise line defended its actions by arguing that it was only complying with Cuban law. Delving into the intricacies of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations based on national origin, is a bit out of the scope of this blog, but not completely. The Department of Transportation, in a somewhat similar recent situation, held that Kuwait Airways violated 49 U.S.C. § 41310 when it refused to book a ticket for an Israeli wishing to travel between New York and London. The airline’s argument that Kuwait law forbade it from selling tickets to Israeli passport did not overcome the prohibition of § 41310 against “unreasonable discrimination” given that the passenger was traveling not to Kuwait, but to London where it would be legal for him to disembark the plane. The fact that the Kuwait case did not involve travel to a place where disembarkation was forbidden effectively distinguishes this case from the one against Carnival.

More interestingly, and more within the scope of this blog, the Department of Transportation further based its action on the antiboycott provisions in the Export Administration Regulations. Section 760.2(b) of the EAR prohibits U.S. companies from discriminating against anyone based on national origin “with intent to comply with, further, or support an unsanctioned foreign boycott.”

So, are Carnival and Fathom violating these regulations by refusing to book travel for Cubans wishing to take boats to Cuba? Although the antiboycott regulations go into excruciating detail on many of its definitions and prohibitions, nowhere do they bother to define or to elucidate the meaning of “unsanctioned foreign boycotts” even though nothing in these rules is violated unless somehow related to an unsanctioned foreign boycott. That leaves open the question whether Cuba’s law prohibiting Cuban-born persons from traveling to Cuba by boat from any country in the world is an unsanctioned foreign boycott.

The EAR gives as an example of prohibited discrimination an agreement by a U.S. company to comply with a boycotting country’s local law forbidding employment persons of a certain religious faith in projects in that country. This would be a violation, the example states, because the majority of the citizens of the boycotted country are of the prohibited faith. On the other hand, the next example says that an agreement to comply with a local law of that country not to employ women would not violate the antiboycott provisions because it would not be “boycott-based.” This suggests, at least to me, that the Cuban restriction is not a foreign boycott. The restriction is only on Cuban-born persons and the only place with a majority of citizens born in Cuba is, obviously, Cuba. I’m not sure anyone, even Cuba, can boycott itself.

 

Photo Credit: Fathom Cruise Ship via Fathom [Fair Use]

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Copyright © 2016 Clif Burns. All Rights Reserved.
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Mar

16

The Mojito, Er, The Dog Ate My People-to-People Records


Posted by at 10:49 pm on March 16, 2016
Category: Cuba SanctionsOFAC

Mojito by Sami Keinänen [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/4GyGSs [cropped]Today, the Office of Foreign Assets Control (“OFAC”) amended the Cuban Assets Control Regulations to, among other things, expand the general licenses authorizing travel by U.S. citizens to Cuba. Under the new amendments, U.S. citizens can travel to Cuba under the people-to-people general license without doing so under the auspices of a sponsoring organization. As long as the individual arranges for himself or herself a “full-time schedule of educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba,” the trip is authorized under the general license for educational activities in section 515.565. The amended rules still exclude travel that is “primarily tourist-oriented” but eliminates the exclusion for “self-directed educational activities that are intended only for personal enrichment.”

A new example tries to grapple with the distinction between a trip that is primarily tourist-oriented and a permitted self-directed activity that involves a meaningful exchange with individual Cubans:

An individual plans to travel to Cuba to rent a bicycle to explore the streets of Havana, engage in brief exchanges with Shopkeepers while making purchases, and have casual conversations with waiters at restaurants and hotel staff. None of these activities are educational exchange activities that will result in meaningful interaction between the traveler and individuals in Cuba, and the traveler’s trip does not qualify for the general license.

In that case, go directly to OFAC jail; do not pass go. As you might imagine, it may be difficult for individuals, anxious to swill down a few mojitos in Old Havana before there is a Starbucks on every corner and an Olive Garden in every storefront, to grasp the difference between a meaningful exchange and a pub crawl. The checks and balances of a sponsoring organization will be absent.

Worse yet, consider this: under the rules for the people-to-people license, the individual will need to “retain records sufficient to demonstrate” a “full-time schedule of activities” that result in a meaningful interaction with Cubans (other than waiters, bartenders and hotel staff). Forgive my cynicism (or not), but a large number of individuals engaged in self-directed people-to-people (other than waiters, bartenders and shopkeepers) travel are not going to have a clue as to how to do this. Unless this is intended to be a requirement that is never enforced and a concealed license for tourism in Cuba, this is not going to end well for many people relying on this self-directed license. Don’t get me wrong, as you can imagine, I’m all for unfettered travel to Cuba. But I really don’t relish the possibility that, 18 months from now, I’ll be getting calls to help out a friend whose kids went to Cuba and thought that their Instagram account qualified as adequate documentation of their self-directed people-to-people trip to Cuba.

Photo Credit: Mojito by Sami Keinänen [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/4GyGSs [cropped]

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Copyright © 2016 Clif Burns. All Rights Reserved.
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Mar

11

End Book Publisher Illiteracy on Cuba Sanctions


Posted by at 10:39 am on March 11, 2016
Category: Cuba SanctionsOFAC

Poro en el mercado de libros usados by Javier Ignacio Acuña Ditzel [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/5xQkWj [cropped]A group of publishers have just petitioned the White House to “End the Book Embargo Against Cuba.” Say what? It’s illegal to send books to Cuba or import books from Cuba? Not so much. Due to the information exception in the Berman amendment, the import of books from, and the export of books to, Cuba is permitted and may not be forbidden by OFAC. But you would never know that from the petition.

Of course, what’s really going on here is that the information exception, as narrowly construed by OFAC, is defined to include only information and books already in existence. You can import Che Guevara’s El Diario del Che en Bolivia from Cuba and export Henry James’s What Maisie Knew to Cuba because both works are already in existence. What you can’t do is pay an author in Cuba to write a book for you and edit it for publication, which is, I suppose, what the publishers, however inartfully, are getting at.

The publishers do have an excellent argument to make, and it is somewhat baffling that they did not make it directly. Under the recent amendments to the Cuban Assets Control Regulations, movie, television and record companies are allowed to go hog-wild in Cuba, hiring Cubans to work on “filming or production of media programs (such as movies and television programs), the recording of music, and the creation of artworks in Cuba,” leaving book publishers behind in the dust. That, simply put, does not make an ounce of sense. I suspect that given that many publishers also have interest in music and movie production, they aren’t anxious to complain openly about differential treatment of movies, music and books.

Photo Credit: Poro en el mercado de libros usados by Javier Ignacio Acuña Ditzel [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/5xQkWj [cropped]

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Copyright © 2016 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)