JAVIER GARCIA-BENGOCHEA V. CARNIVAL CORPORATION D/B/A/ CARNIVAL CRUISE LINE, A FOREIGN CORPORATION [1:19-cv-21725; 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 Carnival Corporation Motion For Judgement On The Pleadings
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:19-cv-21725-JLK
JAVIER GARCIA-BENGOCHEA, Plaintiff,
v.
CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINE, Defendant.
ORDER DENYING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF BY FORMER CONGRESSMEN
THIS CAUSE is before the Court on the Motion for Leave to File Amicus Curiae Brief by Former Congressmen Dan Burton and Robert Torricelli, filed on February 24, 2020 (ECF No. 89) (the “Motion”), who seek permission to file a brief in support of Plaintiff’s opposition to the pending Motion for Judgment on the Pleadings filed by Defendant Carnival Corporation (ECF No. 54).1 As stated in the Motion, the former Congressmen seek to aid the Court in interpreting the Helms-Burton Act, 22 U.S.C. §§ 6021 et seq. (the “Act”), and discerning congressional intent with respect to Carnival’s argument that Plaintiff cannot pursue his claim under the Act because he inherited his claim to the property after March 12, 1996. See Mot. 2, ECF No. 89.
Carnival opposes the former Congressmen’s Motion, arguing that Plaintiff’s position has already been adequately briefed and represented in his Response in Opposition to the Motion for Judgment on the Pleadings (ECF No. 61), making the proposed amicus brief unnecessary. See 2 Carnival’s Resp., ECF No. 91. The former Congressmen reply that their brief would assist the Court because while Plaintiff’s Response to the Motion for Judgment on the Pleadings focuses on the statutory text, their brief would show that the interpretation advanced by Carnival is also inconsistent with the congressional findings and various statements from the official legislative record. See Reply 7–8, ECF No. 100.
District courts have inherent authority to appoint amici curiae, or “friends of the court,” to assist in their proceedings. See In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1249 n.34 (11th Cir. 2006). Because an amicus “participates only for the benefit of the court, it is solely within the discretion of the court to determine the fact, extent, and manner of participation by the amicus.” Resort Timeshare Resales, Inc. v. Stuart, 764 F. Supp. 1495, 1501 (S.D. Fla. 1991) (internal quotations and citation omitted). Upon consideration, the Court finds that the former Congressmen’s request to submit an amicus brief to the Court—though appreciated—is unnecessary to the Court’s determination of the issues in Carnival’s Motion for Judgment on the Pleadings. The Court thus exercises its discretion to decline consideration of the amicus brief.
Accordingly, it is ORDERED, ADJUDGED, AND DECREED that the Motion for Leave to File Amicus Curiae Brief (ECF No. 89) be, and the same hereby is, DENIED.
DONE AND ORDERED in chambers at the James Lawrence King Federal Justice Building and United State Courthouse, Miami, Florida, this 20th day of May, 2020.
JAMES LAWRENCE KING, UNITED STATES DISTRICT JUDGE
LINK To Previous Post:
Buffalo, New York-based Roswell Park Comprehensive Cancer Center (RPCCC) and the government of the Republic of Cuba have a unique healthcare-related relationship.
Instructive to learn if RPCCC has interacted with their Havana-based colleagues about COVID-19 and if any medications developed in the Republic of Cuba to treat COVID-19 have been identified, requested and delivered to RPCCC for testing.
In April 2015, RPCCC signed an agreement with the Republic of Cuba government-operated Center for Molecular Immunology (CIM) to develop a lung cancer vaccine with a clinical trial in the United States.
In August 2016, RPCCC received authorization from the United States Food and Drug Administration (FDA) to commence a Phase One Clinical Trial of the lung cancer treatment vaccine CIMAvax-EGF® to a limited number of patients.
In October 2016, RPCCC received authorization from the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury in Washington DC to establish a commercial joint venture with CIM, to be located in the Mariel Special Development Zone (ZEDM) and which will be the first commercial joint venture with a United States-based entity in the Republic of Cuba licensed to research, develop, manufacture and market biotech products in the Republic of Cuba.
In September 2018, RPCCC created a joint venture biotech company located in the Republic of Cuba, Innovative Immunotherapy Alliance S.A., operated by CIM commercial affiliate, CIMAB S.A., and by GBCT II LLC, a wholly-owned subsidiary of RPCCC.
The OFAC generally issues for two years; RPCCC has not reported if the OFAC has renewed the license(s).
There have been no responses to the following inquiries:
To RPCCC 6 June 2020
“May I have a statement from the RPCCC regarding its efforts to use the relationship with the Republic of Cuba to investigate treatments for COVID-19? Given the unique commercial relationship between RPCCC and the government of the Republic of Cuba, important to hear from RPCCC at this time. And, if there is an update relating to the Phase II trial of the cancer treatment CancerVax, I would appreciate receiving it as well.”
To RPCCC 19 March 2020
“I am writing to learn if Roswell Park Comprehensive Cancer Center, given its cooperative research and authorized commercial relationship with Republic of Cuba government-operated healthcare entities, has considered or is considering seeking, if necessary, authorization from the United States government to import interferon from the Republic of Cuba for the specific purpose of determining its effectiveness in treating individuals with COVID-19. This article from On Cuba News serves as my reference point: “The famous Cuban interferon vs the SARS-CoV-2 coronavirus: Many American readers have asked us if the interferon produced by Cuba could be exported to the United States. The answer is yes, it could.””
Previous Analysis
Roswell Park Announces Joint Venture In Cuba For Healthcare Product Development- September 26, 2018
Who Will Provide Cargo Services For Roswell Park? UAL, DEL, AA, FDX Or JBU- November 14, 2016
“State Department Records Reveal Cuba Still Owes Billions to U.S. Taxpayers, Property Claims No Closer to Resolution”- Poblete Tamargo LLP
June 12, 2020 by Poblete Tamargo LLP
“Washington, D.C. – The road to the historic re-establishment of diplomatic relations between the United States and Cuba on July 25, 2015, was supposed to usher a new era of U.S.-Cuba relations. For the first time in close to a century, a sitting American president visited Cuba and so did many representatives from various American companies. Supporters of the new policy lauded the outreach as a new way forward. Opponents argued it was a mistake and the move was premature.
For American citizens holding thousands of certified claims against the government of Cuba for stolen properties confiscated after the 1959 Communist revolution, there was a hope that they would finally see justice and accountability. The claims were supposedly discussed between both countries for the first time in decades. Yet as of this writing, American taxpayers owed more than $10,000,000,000 by Cuba have yet to be paid what they are owed under U.S. law and under international claims law.
On October 10, 2018, Poblete Tamargo LLP (“PT Law”) filed a Freedom of Information Act (“FOIA”) lawsuit against the Department of State in U.S. District Court for the District of Columbia for records requested more than fives years ago related to U.S.-Cuba property claims. The Complaint is embedded at the end of this post. The suit stems from two FOIA records requests for records, one filed in 2014, and the other in 2015, that were submitted to the Department of State before the U.S. and Cuba normalized diplomatic relations. At the end of this post is a copy of the complaint and a sampling of some of the documents released to date.
The firm was particularly interested in records on the enforcement, or lack thereof, of several provisions of the Cuban Liberty and Democratic Solidarity Act of 1996 (“the Helms-Burton”) and other laws related to the settlement of the outstanding American property claims pending against the government of Cuba. As of this writing, American taxpayers owed billions by Cuba no closer to settling the claims. The relationship with Cuba has also deteriorated for a variety of reasons especially over the attacks on U.S. diplomats that started in late 2016 and that have yet to be satisfactorily resolved, among other issues.
PT Law Attorneys and Public Policy professionals have worked on U.S.-Cuba policy for decades including during the drafting of the Helms-Burton law in Congress. The firm currently represents nearly two dozen families who hold certified claims against Cuba. In advocacy efforts during the past few years, the Firm has stressed the importance of resolving these claims correctly, consistent with the law.
The resolution of U.S.-Cuba property claims will set important precedents that will impact future property claims programs well beyond Cuba. During the past ten years, PT Law attorneys have testified before Congress, briefed policymakers in both political branches of government, foreign governments, businesses, and other interested parties on the importance of successfully resolving this long-standing dispute not only for our clients but to better inform the general public and fellow attorneys about these programs.
The records produced by the Department of State will not only help advance justice and accountability for American citizens wronged by Communist Cuba and those today who traffic in confiscated property, but it will also help U.S. taxpayers understand how this program has worked, or not worked, and how it can be improved so that future claims programs can be properly structured to advance U.S. national and taxpayer interests.
If you are a claims practitioner, we hope these records bring much-needed sunshine on the U.S.-Cuba claims program, an intersection of law and public policy that continues to unfold in courts of law and in the court of public opinion. You can search for records produced by the Department of State by following this link.”
Initial Court Filing (10/10/18)
Final Court Status Report (5/28/20)
First Document Production (November 2019)
Second Document Production (December 2019)
Third Document Production (January 2020- A)
Fourth Document Production (January 2020- B)
Fifth Document Production (February 2020)
Sixth Document Production (March 2020)
LINK To Post: https://www.cubatrade.org/blog/2020/6/12/7pyuberuzrkrsloxzno4n85o3cou6t
Trump Administration Has Completed Commoditization Of Cuba
3 Companies May Lose 100% Of Their Business In A Single Country
Nary A Whimper From Companies, Organizations And Politicians
Why Weren’t OFAC Licenses 10 Years?
Who’s To Blame?
Last week, the Trump Administration took two decisions impacting three prominent United States companies- excising potentially 100% of their operations in a single country.
None protested. Nor did any politicians. Business organizations remained silent. National newspapers did not include it in their print editions. National newscasts ignored it. Few wire services reported it.
There were no publicized statements about the decisions by the Trump Administration from Members of the United States Congress; Cuba Working Group within the United States Congress; Washington DC-based United States Chamber of Commerce; Washington DC-based Business Roundtable; Washington DC-based American Hotel & Lodging Association; Washington DC-based U.S. Travel Association; Fairfax, Virginia-based Electronic Funds Transfer Association; Copenhagen, Denmark-based International Association of Money Transfer Networks; Washington DC-based American Bankers Association; former President Barack Obama; former Vice President Joseph Biden; officials and staff members of the Obama Administration.
Members of the United States Senate and United States House of Representatives serving those three states (Maryland, Colorado, and New York) where the companies are located did not came to the defense of their constituents. Nothing from The Honorable Benjamin Cardin (D- Maryland), The Honorable Chris Van Hollen (D- Maryland) The Honorable Michael Bennet (D- Colorado), The Honorable Cory Gardner (R- Colorado), The Honorable Charles Schumer (D- New York), The Honorable Kirsten Gillibrand (D- New York), The Honorable Jamie Raskin (D- 8th District, Maryland), The Honorable Diana DeGette (1st District, Colorado) and The Honorable Nita Lowey (17th District, New York).
Why no publicized statements? By connecting the Republic of Cuba to Venezuela the Trump Administration has created toxicity and deflated expectations of re-engagement with the Republic of Cuba. No company executive wants to publicly defend a relationship with a military-controlled company. United States companies and United States politicians have moved, albeit reluctantly, onward.
Why is this tragic? For perspective, as a state, the Republic of Cuba would rank by population (11 million) eighth of fifty and rank by size thirty-fourth of fifty. All the Caribbean Sea-area countries could fit inside the boundaries of the Republic of Cuba. The city of Havana is 228 miles from Miami, Florida. United States brands are well-known and preferred where available; no company would ignore the country.
Since 2001, the Republic of Cuba has purchased, on a cash-in-advance basis as required by United States statute, more than US$6.2 billion in agricultural commodities and food products from the United States; and has ranked as high as 25th and never lower than 60th of the 219-232 United States export markets. Since 2003, the Republic of Cuba has purchased approximately US$26.4 million in healthcare products (medical equipment, medical instruments, medical supplies, pharmaceuticals) from the United States. Since 2017, more than US$26 million in power generation equipment, agricultural equipment, excavators, backhoes, graders, scrapers, bulldozers, railway fixtures, and signaling equipment have been sold to the Republic of Cuba.
For United States companies, at minimum through 3 November 2020 and potentially beyond regardless of who resides in The White House on the night of 20 January 2021, once heralded as the next new (and renewed) marketplace for United States companies, the subject of the Republic of Cuba is now comatose and nearing moribund. As a commodity, the value of its 11 million citizens is tragically, barely now an after-thought.
Another example of the mounting excruciating injuries from the jointly-exercised failures of the Obama Administration and Raul Castro Administration to seek bilateral permanence. The Obama Administration neither understood nor wanted to understand what tools are required for commerce; stability being among the most important.
What Happened Last Week
The Trump Administration continues to implement policies designed to separate the military from the civilian commercial and economic infrastructure within the Republic of Cuba by discouraging, restricting and prohibiting transactions with military-controlled entities in the Republic of Cuba.
First, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury informed Bethesda, Maryland-based Marriott International (2019 revenues approximately US$21 billion) that the two-year license first received in March 2016 by Starwood Hotels & Resorts Worldwide prior to its September 2016 acquisition by Marriott International, then renewed in March 2018 and again in March 2020 to manage properties in the Republic of Cuba would be terminated on 31 August 2020. The one operational property, Four Points by Sheraton Havana, has approximately 300 employees and is owned by Republic of Cuba government-operated Gaviota, a subsidiary of Republic of Cuba government-operated Enterprise Administration Group (GAESA) that is controlled by the Revolutionary Armed Forces of the Republic of Cuba (FAR). A second property delayed for three years was scheduled to be operational in 2020 and a third property was never mentioned after initially being identified in 2016. NOTE: Representative offices for United States airlines remain operational in the Republic of Cuba.
Second, the United States Department of State added Republic of Cuba government-operated Financiera Cimex (Fincimex), a Panama-registered subsidiary of Republic of Cuba government-operated Corporacion Cimex which is a subsidiary of GAESA and controlled by the FAR to the Cuba Restricted List. As of 12 June 2020, individuals/entities subject to United States jurisdiction are (with some exceptions including “grandfathering”) prohibited from engagement with Fincimex.
Fincimex is the remittance agent in the Republic of Cuba for Denver, Colorado-based Western Union Company (2019 revenues approximately US$5.6 billion) and processes credit/debit card transactions for Purchase, New York-based Mastercard International (2019 revenues approximately US$15 billion) which on 1 March 2015 removed its restriction (block) on the Republic of Cuba for United States-based financial institutions. Each company operates within general licenses and specific licenses issued by the OFAC.
With the removal of the block by Mastercard International, three financial institutions permitted their Mastercard products (credit card/debit card) to be used in the Republic of Cuba: Pompano Beach, Florida-based Stonegate Bank; San Juan, Puerto Rico-based Banco Popular of Puerto Rico; and Fort Lauderdale, Florida-based Natbank (a subsidiary of Montreal, Canada-based National Bank of Canada) with approval of the Central Bank of the Republic of Cuba.
The use of Mastercard products issued by non-United States-based financial institutions are unimpeded for use in the Republic of Cuba, as are products from San Francisco, California-based Visa (2019 revenues approximately US$23 billion). Visa has not removed its restriction (block) on the Republic of Cuba for United States-based financial institutions.
An unanswered question is whether the Trump Administration will permit Western Union Company and Mastercard International to continue operations in the Republic of Cuba if the Republic of Cuba government-operated entities who hold agency agreements and processing requirements are not affiliated with the FAR. Marriott International too could change its management contracts to a non-FAR-related entity.
Changes-in-control would seem to satisfy the goals of the Trump Administration- to unwind the role of the military within the commercial and economic infrastructure of the Republic of Cuba while permitting maintenance of important commercial relationships. The Trump Administration might require further transparency with respect to the structure of any agreements.
Will be next for the Trump Administration to dismantle the sales offices in Havana representing the interests of Deerfield, Illinois-based Caterpillar (2019 revenues approximately US$53.8 billion) and Moline, Illinois-based Deere & Company (2019 revenues approximately US$39.2 billion) who collectively have since 2017 exported more than US$5 million in product to the Republic of Cuba? If the offices are ordered closed, will the Milwaukee, Wisconsin-based Association of Equipment Manufacturers and St. Louis, Missouri-based Farm Equipment Manufacturers Association, and Washington DC-based National Association of Manufacturers register their complaints?
Failures By Obama Administration And Castro Administration
From 2014 to 2017, when seeking OFAC licenses, why did not Obama Administration officials, department and agency staff, attorneys and consultants in Washington DC and in Havana, collectively or individually, consider longevity, permanence, interruption; and the impact of a Republican winning the 2016 presidential election? At minimum, contracts and leases needed to account for the four-year United States presidential term.
Why didn’t the Obama Administration offer, why didn’t the Castro Administration suggest, why didn’t companies (and their attorneys and consultants) ask for OFAC licenses of more than two years in duration? From those involved, the disturbing answer seems to be that no one thought about it. Amazing. Why wouldn’t they ask? The entire exercise was about pushing-the-envelope.
The Obama Administration should have encouraged and, if necessary convinced the Castro Administration that to render solid (immune from political interference) the commercial, economic, and political bilateral operational relationship, United States companies needed to have long-term contracts and long-term leases. The companies needed to move quickly to create a meaningful footprint. The message needed to be normalcy and stability rather than crimped and play-it-safe.
Not too much brainpower required to appreciate the two-year OFAC license issued in March 2016 to Starwood Hotels & Resorts Worldwide/Marriott International should have been for a minimum of four years or eight years, but more reasonably ten years to twenty years with options to renew as is standard with international hotel management contracts.
If the Obama Administration had instructed the OFAC, which it could have done, to issue a ten-year license in March 2016, Starwood Hotels & Resorts Worldwide/Marriott International along with other companies (there were others who wanted to and attempted to enter the Republic of Cuba including Parsippany-Troy Hills, New Jersey-based Wyndham Hotels & Resorts (2019 revenues approximately US$2 billion)) may have had by June 2020 perhaps ten or more properties under management in the Republic of Cuba- employing thousands of Republic of Cuba nationals. While the OFAC license could still have been revoked by the Trump Administration, there would have been caution given what would have been substantial investments in the Republic of Cuba and thousands of employees who were Republic of Cuba nationals.
Another lapse by the Obama Administration: Western Union Company and Mastercard International, along with agricultural commodity exporters, food product exporters, healthcare product exporters, and travel service providers needed direct correspondent banking. The efficient two-way electronic movement of funds is central to a normal, transparent and rationale commercial marketplace. Yet, despite advocacy from companies, business organizations and politicians, the Obama Administration (particularly National Security Council staff) would not instruct the OFAC to issue a general license, or multi-year specific license to United States financial institutions to have accounts with financial institutions in the Republic of Cuba and for financial institutions in the Republic of Cuba to have accounts with financial institutions in the United States. What did the Obama Administration instruct the OFAC to do? Not permit financial institutions in the Republic of Cuba to have accounts with United States financial institutions. This decision crystalized two points: First, the Obama Administration did not want to be bold, did not know how to be bold, did not want normalcy. Second, a complete lack of understanding about the basics of commerce.
If the Castro Administration did not want multi-year contracts and leases, then what the Trump Administration decided to do last week should have been expected.
What Might Have Been
The problems created by the Obama Administration and Castro Administration are not solely about the duration of licenses and contracts, it’s also about the failure of each to permit an immediate foundational presence within the Republic of Cuba for United States Companies.
Had, for example, entities including Seattle, Washington-based Starbucks Corporation; Houston, Texas-based Sysco Corporation; Miami, Florida-based Akerman LLP; Atlanta, Georgia-based The Home Depot; Chicago, Illinois-based Hyatt Hotels Corporation; Bonita Springs, Florida-based Hertz Global Holdings; Cupertino, California-based Apple; and Chicago, Illinois-based McDonald’s Corporation among others been permitted by the Obama Administration and the Castro Administration to have a presence, and not one flagship, but locations throughout the county, then the decisions taken since 2017 by the Trump Administration may not have been possible.
There would have existed not only a highly-visible United States commercial presence throughout the 800-mile archipelago, but an infrastructure and those companies would be employing thousands of Republic of Cuba nationals, paying them directly, paying them well, and training them for higher-paying jobs… possibly in the United States. President Trump would have been pleased with that optic.
If only the Obama Administration and Castro Administration had prepared for an election outcome they did not prefer to envision….
ECONOMIC EYE ON CUBA©- June 2020
April 2020 Food/Ag Exports To Cuba Decrease 29.3%- 1
62nd In April 2020 Of 222 U.S. Food/Ag Export Markets- 2
Cuba Ranks 59th Of 222 Ag/Food Export Markets- 2
April 2020 Healthcare Product Exports US$11,646.00- 2
April 2020 Humanitarian Donations US$23,666.00- 3
Obama Administration Initiatives Exports Continue To Increase- 3
U.S. Port Export Data- 16
APRIL 2020 FOOD/AG EXPORTS TO CUBA DECREASE 29.3%- Exports of food products and agricultural commodities from the United States to the Republic of Cuba in April 2020 were US$11,569,079.00 compared to US$16,366,542.00 in April 2019 and US$25,159,062.00 in April 2018.
Exports in April 2020 include chicken legs, chicken leg quarters, chicken meat, whole chicken, calcium phosphate, woodpulp, and kraftliner.
Total 2020 exports to the Republic of Cuba are US$56,077,971.00 compared to the same period in 2019 of US$108,465,136.00 representing a decrease of 48.3%.
Thus far for 2020, the Republic of Cuba ranks 59th of 217 agricultural commodity and food product export markets for the United States.
TSREEA exports reported since December 2001 are US$6,188,950,667.00.
The contains information on exports from the United States to the Republic of Cuba- products within the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000, Cuban Democracy Act (CDA) of 1992, and regulations implemented (1992 to present) for other products by 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.
The TSREEA re-authorized the direct commercial (on a cash 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 healthcare products, which remain authorized and regulated by the CDA.
Statement of Marriott International: "Marriott International has been notified by the U.S. Department of Treasury that we must wind down our operation of the Four Points Sheraton in Havana, Cuba by August 31, 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."
From the moment in November 2016 when Donald Trump became President-Elect Donald Trump, all licenses from the OFAC to United States companies for commercial activity in Cuba had a bullseye painted upon them. If President Obama's name was attached to an initiative, it was prepared for execution.
The Trump Administration decision for the OFAC not to renew the license of Marriott International is not surprising, but is disappointing as the Four Points By Sheraton Havana was the sole space for employees who are Cuban to learn about how a global United States company operates and position them for opportunities in the hospitality sector.
The Trump Administration viewed the operation by Marriott International similar to how it viewed cruise ship operations- an example of Obama Administration policy failure to change Cuba rather than provide Cuba with additional revenues which are used to forestall necessary commercial and economic changes vital to the country.
From The Miami Herald: "We recently received a notice that the government-issued license will not be renewed, forcing Marriott to suspend its operations in Cuba," said Kerstin Sachl, the company's director of Public Relations for Latin America and the Caribbean.”
Second-largest certified claimant, Bethesda, Maryland-based Marriott International, Inc. (2019 revenues approximately US$21 billion) and its subsidiary, Stamford, Connecticut-based Starwood Hotels and Resorts Worldwide LLC, have a series of two-year licenses from the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury in Washington DC to manage two (2) properties located in the Republic of Cuba.
The largest certified claim (Cuban Electric Company) valued at US$267,568,413.62 is controlled by Boca Raton, Florida-based Office Depot, Inc. The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Marriott International; the certified claim also includes land adjacent to the Jose Marti International Airport in Havana, Republic of Cuba.
The OFAC licenses were first issued in March 2016 during the Obama Administration and were renewed during the Trump Administration, although there has been a reported delay by the OFAC in transferring the licenses from Starwood Hotels and Resorts Worldwide LLC to Marriott International.
Both properties (one currently through Starwood Hotels and Resorts Worldwide LLC) are in the city of Havana, the 186-room Four Points by Sheraton Havana (which employs 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).
Both properties are owned by entities controlled by the Revolutionary Armed Forces of the Republic of Cuba (FAR).
Marriott International reported that the OFAC-authorized management contract for at least one of the properties requires the investment of millions of United States Dollars; unstated as to the shared responsibility for that investment.
Which US Company May (But Hopefully Won't) Have A “Big-League” PR Problem? Starwood/Marriott (June 13, 2017)
If (and it remains uncertain) the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury does not rescind or require modification of the license issued in 2016 to Stamford, Connecticut-based Starwood Hotels and Resorts Worldwide (a subsidiary of Bethesda, Maryland-based Marriott International), both companies may be in a potentially untenable position due to the Trump Administration’s expected efforts to discourage transactions with entities affiliated with and/or controlled by the Revolutionary Armed Forces of the Republic of Cuba (FAR). LINK: http://foresightcuba.com/grupos-empresariales-del-minfar/
For the Trump Administration, the goal may be to elicit from all of the forty-nine (49) United States companies (LINK TO LIST) with a presence in the Republic of Cuba answers to the following questions: Will they change the Republic of Cuba or will they be changed by the Republic of Cuba? Will they be agents for change or agents for the status quo?
In 2016, the Obama Administration directed the OFAC to issue a license to Starwood Hotels and Resorts Worldwide for a multi-year management agreement (the term of which has not been disclosed) with Republic of Cuba government-operated Gaviota (controlled by FAR/GAESA) which owns the Hotel Quinta Avenida (re-branded as Four Points Sheraton Havana on 27 June 2016).
In 2016, the Obama Administration directed the OFAC to issue a license to Starwood Hotels and Resorts Worldwide for a multi-year management agreement (the term of which has not been disclosed) with Republic of Cuba government-operated Gran Caribe (not controlled by FAR/GAESA) to manage the Hotel Inglaterra and transform it into a member of the Luxury Collection. The implementation of the management contract has been delayed for unannounced reasons from December 2016 to December 2017 and recently to December 2019.
In 2016, Starwood Hotels and Resorts Worldwide reported signing a Letter of Intent with Republic of Cuba government-operated Habaguanex (absorbed by FAR/GAESA in 2017) to manage a third property, the Hotel Santa Isabel. Starwood Hotels and Resorts Worldwide has provided no information about the property since 2016.
The Trump Administration is expected to position publicly (the art of persuasion) that they know the companies will “do what’s right for the Cuban people.” The “kick over the goal post” is for the companies to make unilateral non-required changes. The White House may then embrace the effectiveness of the President’s use of the “bully pulpit.”
There would then be pressure upon Starwood Hotels and Resorts Worldwide (and Marriott International) to modify or relinquish the management agreement with Gaviota.
If the company did not modify the management contract, Members of Congress and the Trump Administration could target the company as undermining United States policy and acting in a manner inconsistent with United States policy, which could be used to rescind the license from the OFAC.
All OFAC licenses are issued on the basis that they may be revised or rescinded at any time if they no longer are consistent with United States policy.
There has yet to be an announcement from Boston, Massachusetts-based General Electric (2016 revenues exceeded US$126 billion), the largest United States-based company by far (in terms of revenue) to have engaged with the Republic of Cuba. Although the company has not confirmed export of products or services, the government of the Republic of Cuba confirmed that the company is providing parts and equipment for a power plant. The Obama Administration specifically authorized the transactions as advancing benefit to the citizens of the Republic of Cuba rather than to the government of the Republic of Cuba.
Important to appreciate that policy decisions by the Trump Administration relating to the Republic of Cuba resemble a quad, or perhaps a Quadrophenia. The President remains untethered to ideology; he views issues relating to the Republic of Cuba in transactional terms and optical terms (how it looks is often more significant than what it does). The White House Staff are substantially agnostic relating to the Republic of Cuba; there are a few- and that is all that is sometimes required, for an issue of no importance to metastasize into an issue that can be reformulated into a muscular and optically-pleasing policy initiative.
Members of The Cabinet view the Republic of Cuba as another among many issues requiring attention; but none believe that the Republic of Cuba is or should be a priority and no Secretary will singularly attach (in a defensive posture) themselves to issues relating to the Republic of Cuba and risk positioning for other issues of greater importance to their departments. Officials and employees within Agencies and Departments share the positions of The Cabinet, but are generally supportive of a modified laissez-fare; poke and prod and baste as required for fragmented, but forward mobility.
For Members of Congress, the issue of the Republic of Cuba is both transactional and commoditized. Although there is bipartisan support for both incremental and dynamic changes to United States statutes, no member(s) of the House of Representatives or the United States Senate will prevent “must-pass” legislation on any matter from becoming law unless issues relating to the Republic of Cuba are addressed. No one will volunteer to be a Captain Ahab.
How does The Honorable Paul Ryan, Speaker of the United States House of Representatives, have a role in the Starwood Hotels and Resorts International/Marriott presence in the Republic of Cuba?
Will Trump Administration Permit Marriott To Purchase Supplies From New Military-Affiliated Company In Cuba? (January 12, 2019)
Will The Trump Administration Object To Marriott Hotels Purchasing Products From New Hotel Supply Company Affiliated With Cuba’s Military?
The Same Company Owns Hotel Marriott Manages And The Hotel It Will Manage
Palma de Mallorca, Spain-based Iberostar Group has commenced operation of Logistica Hotelera del Caribe S.A. (LHC), a 32,000 square foot hotel product distribution center located within the Mariel Special Development Zone (ZEDM), forty minutes south-west of the city of Havana, Republic of Cuba. Link to Iberostar Media Release
LHC is providing products to the nine (9) properties in the Republic of Cuba that are managed by Iberostar Group. Eventually, LHC will offer products to hotels throughout the Republic of Cuba. Initially, LHC has approximately five hundred (500) products from fifty (50) suppliers.
The partner in LHC is A.T. Comercial S.A., a subentity of Grupo de Administracion Empresarial S.A. (Enterprise Management Group), or GAESA, which is, in turn, controlled by the controlled by the Revolutionary Armed Forces of the Republic of Cuba (FAR).
Managed by the United States Department of State: “The Cuba Restricted List 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. For more information on the Cuba Restricted List, please refer to Treasury regulations at 31 Code of Federal Regulations (CFR) part 515, here, and to Commerce regulations at 15 CFR parts 730-774, here. Link To List: https://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/287349.htm” A.T. Comercial S.A. is on the Cuba Restricted List.
From Iberostar:
Question: Does LHC also sell its products to non-Iberostar-managed properties in the Republic of Cuba? Meaning, can Starwood, Accor, Sol Melia, Gaviota, etc. also purchase products from LHC at the same prices as Iberostar properties? Yes, although in a first phase we will focus on hotels managed by Iberostar. The reason is to guarantee the correct functioning of the operation.
Question: May I have a list of the 500 products and 50 suppliers to LHC? The importer can import any item a hotel requires. Nowadays, it has focused on the improvement of buffets, working with suppliers that the Iberostar Group traditionally works.
Will the United States Department of State authorize Bethesda, Maryland-based Marriott International (2018 revenues exceeded US$23 billion), whose subsidiary manages one property in the Republic of Cuba and will add a property in December 2019, to purchase products from LHC?
Since Gaviota S.A. owns both properties in the Republic of Cuba and Gaviota S.A. is a shareholder in LHC, are activities with LHC considered “grandfathered” and thus permitted due to shared ownership? Will LHC be permitted to import hotel products (including food products and agricultural commodities) from the United States for use exclusively at Marriott/Starwood-managed properties or for any property in the Republic of Cuba?
Since 2016, Marriott International, initially through Stamford, Connecticut-based Starwood Hotels and Resorts Worldwide LLC which was acquired by Marriott International in 2016, has managed the 186-room Four Points By Sheraton Havana in the Republic of Cuba. The property is owned by Gaviota S.A.
In March 2016, Marriott International reported that the company would manage the 83-room Hotel Inglaterra, also owned by Gaviota S.A. Subsequently, the company reported that the property would be under management in December 2017 and then in December 2019. No reason(s) have been provided for the thirty-six (36) month delay. The Hotel Inglaterra will be amongst the company's 122-property The Luxury Collection.
On 16 March 2016, the company reported signing a Letter of Intent to manage a third property, the 27-room Hotel Santa Isabel, also owned by Gaviota S.A. There has been no mention of the property by the company since the 16 March 2016 announcement.
Due to the acquisition of Starwood Hotels and Resorts Worldwide, Marriott International gained control of certified claims in the Republic of Cuba. Marriott International is now the second-largest certified claimant against the government of the Republic of Cuba.
After 116 Days Sheraton/Starwood/Marriott Finally Changes Its Mastercard Acceptance Policy For Cuba (October 20, 2016)
Marriott/Starwood Was At Risk Of Legal Action By Mastercard
Officials At Banco Central de Cuba Were Angry
Could Reason(s) Have Included Marriott/Starwood Relationship With VISA?
President & CEO Of Marriott International Is Vice Chair Of President's Export Council (PEC)
Mastercard, Central Bank, and Two U.S. Banks Said Starwood Should Authorize... What Was The Problem?
Four Points by Sheraton Havana
20 October 2016- Payment and Cancellations
"Reservations for this hotel are prepaid and there are NO REFUNDS for changes or cancellation for any guests, including SPG members. Additional charges at the Hotel must be paid in CASH or credit cards authorized for usage in Cuba (Please note-most US Based Credit Cards are NOT accepted in Cuba—check with your individual financial institution)."
10 October 2016- Payment and Cancellations
"Reservations for this hotel are prepaid and there are NO REFUNDS for changes or cancellation for any guests, including SPG members. Additional charges at the Hotel are NOT payable with US credit cards and must be paid in CASH or with non-US issued credit cards."
30 June 2016- Payment and Cancellations
“Reservations for this hotel are prepaid and there are NO REFUNDS for changes or cancellation. Additional charges at the Hotel are NOT payable with US credit cards and must be paid in CASH or with non-US issued credit cards.”
On 13 October 2016, New York-based Mastercard Worldwide informed Stamford, Connecticut-based Starwood Hotels & Resorts Worldwide (a subsidiary of Bethesda, Maryland-based Marriott International), which manages the Four Points Sheraton Havana, reported the company was incorrect in stating on its Internet site that credit cards issued in the United States were not permitted to be used at the property.
Mastercard Worldwide also informed the Central Bank of the Republic of Cuba, which responded that it was not aware of the situation, but would contact management of the Four Points Sheraton Havana.
Pompano Beach, Florida-based Stonegate Bank and San Juan, Puerto Rico-based Banco Popular of Puerto Rico, and Florida-based Natbank (although this remains unconfirmed) have authorization from the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury and from the Central Bank of the Republic of Cuba to have their Mastercard-branded credit cards and debit cards valid for use in the Republic of Cuba.
Mastercard has removed its restriction for the Republic of Cuba on the use of its branded products in the Republic of Cuba.
Why Did Starwood Initiate A Reservations Policy More Restrictive Than French & Spanish Competitors In Cuba? (30 June 2016)
For the Four Points By Sheraton Havana property, which commenced operations on 27 June 2016, the following statement is on its reservations portal: http://www.starwoodhotels.com/fourpoints/property/overview/index.html?language=en_US&propertyID=4531
“Reservations for this hotel are prepaid and there are NO REFUNDS for changes or cancellation. Additional charges at the Hotel are NOT payable with US credit cards and must be paid in CASH or with non-US issued credit cards.”
According to Stamford, Connecticut-based Starwood Hotels & Resorts Worldwide (2015 revenues exceeded US$5.7 billion), "The current reservation policies are the result of Starwood’s assessment of market conditions. We are conscious of the issues resulting from cash requirements and the limitations on payment methods. Thus, we are working to accept as many payment methods as possible based on what has been made available under the current regulatory framework. We expect to be able to offer additional options in the near future."
When making a reservation at a property located within the Republic of Cuba using the online portal of the management company, for example Spain-based Melia Hotels International (2015 revenues exceeded US$2 billion) and France-based AccorHotels (2015 revenues exceeded US$5 billion), a reservation may be changed or cancelled and may be prepaid using a non-United States-based financial institution-issued credit/debit card, but may not (yet) be prepaid using a credit card/debit card issued by a United States-based financial institution.
Regulations Do Not Require
There are no regulations issued by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury that prevent prepayment or require prepayment, that prevent refunds for changes or cancellation. The OFAC has authorized credit cards and debit cards issued by United States-based financial institutions (including American Express, VISA, MasterCard, Discover, Diners Club, etc.) for use in the Republic of Cuba.
Are the Four Points by Sheraton Havana payment policies a reflection of requirements by Republic of Cuba government-operated Gaviota (controlled by the Revolutionary Armed Forces of the Republic of Cuba), the Central Bank of the Republic of Cuba, the Ministry of Tourism of the Republic of Cuba?
Pompano Beach, Florida-based Stonegate Bank is authorized by the OFAC and Central Bank of the Republic of Cuba to have its MasterCard credit/debit card valid for use in the Republic of Cuba. San Juan, Puerto Rico-based Banco Popular of Puerto Rico has announced plans [now operational] to have its MasterCard credit/debit card valid for use in the Republic of Cuba.
In 2016, the OFAC granted a license(s) to Starwood Hotels & Resorts Worldwide to manage properties owned by Republic of Cuba government-operated entities located in the city of Havana, Republic of Cuba. The properties are Gran Caribe-owned Hotel Inglaterra; Habaguanex-owned Hotel Santa Isabel and Hotel Quinta Avenida (re-branded as Four Points by Sheraton Havana).
Bethesda, Maryland-based Marriott International (2015 revenues exceeded US$14 billion) is acquiring Starwood Hotels & Resorts Worldwide and confirms its discussions with Republic of Cuba government-operated companies to identify property-management opportunities within the Republic of Cuba.
The Trump Administration expects that Western Union Company and Mastercard International will request the Republic of Cuba either identify or create another entity or entities not affiliated with the Revolutionary Armed Forces of Cuba (FAR) which would process the financial transactions. If the Republic of Cuba refuses, the Trump Administration is prepared to cease remittances, although the process could be a painful game of chicken for millions of people of Cuban descent residing in Florida, New Jersey and in the Republic of Cuba.
The Trump Administration’s action today is described as a "birthday present to former President General Raul Castro."
United States Department of State
Washington DC
Additions to the Cuba Restricted List
06/03/2020 05:23 PM EDT
Michael R. Pompeo, Secretary of State
“Today, the United States Government is announcing the addition of seven new subentities to the Cuba Restricted List. These seven subentities disproportionately benefit the Castro dictatorship, a regime which uses the profits from these businesses to oppress the Cuban people and to fund its interference in Venezuela, at the expense of the Cuban people or private enterprise in Cuba.
Among the seven subentities are one military-controlled financial institution, three military-owned hotels, two military-owned scuba diving centers, and one military-owned marine park for tourists. In particular, the addition of financial institution FINCIMEX to the Cuba Restricted List will help address the regime’s attempts to control the flow of hard currency that belongs to the Cuban people. The people should have the freedom to decide what to do with their own money. The bulk of Cuba’s tourism industry is owned and operated by the Cuban military. We urge anyone who would visit the island to be a responsible consumer and avoid providing additional funds to the repressive and abusive Castro regime. Instead, we urge that visitors to Cuba support the Cuban small business owners who struggle to succeed despite the heavy restrictions placed upon them by the regime.
The Cuban people deserve democratic government, freedom of speech and religion or belief, economic prosperity, and respect for human rights. The United States stands with the Cuban people as you struggle to achieve this vision and look forward to the day when the dream of freedom becomes reality.” NOTE: The changes take effect on 12 June 2020. LINK To List
LINK To Federal Register Document (12 June 2020)
LINK To Federal Register Document Correction (19 June 2020)
NOTE: The Miami Herald reported: “…the following entities were also added to the restricted list: Hotel Marqués de Cardenas de Montehermoso, the Hotel Regis, the Cayo Naranjo dolphinarium, the Varadero diving center and the international diving center Gaviota Las Molas. The list was updated to include the Playa Paraíso Hotel, formerly Pestana Cayo Coco hotel, which was already among the blocked entities.”
Remittances
Denver, Colorado-based Western Union Company (2019 revenues approximately US$5.5 billion) has electronically delivered annually transfers of reportedly valued in the hundreds of millions of dollars from the United States to the Republic of Cuba.
The Western Union Company remittance agent in the Republic of Cuba is Republic of Cuba government-operated Financiera Cimex (Fincimex), a Panama-registered subsidiary of Republic of Cuba government-operated Corporacion Cimex which is a subsidiary of the Enterprise Administration Group (GAESA) controlled by the Revolutionary Armed Forces of the Republic of Cuba (FAR).
Western Union Company does not report data as to the value of transfers from the United States to the Republic of Cuba; consistent media reporting estimates that remittances from the United States to the Republic of Cuba are annually approximately US$1.5 billion to US$3 billion, with the majority of the funds delivered as currency by individuals traveling to the Republic of Cuba. On 14 March 2018, Havana Times, an online publication edited in Nicaragua, reported without verification that Western Union Company delivered “more than 3 billion US dollars annually” to the Republic of Cuba, but did not mention as to the origin(s) of the funds- whether from the United States and/or other countries.
To send US$100.00 from the United States to the Republic of Cuba where the recipient will receive the funds in currency, using www.westernunion.com, the fees range from 9% to 14.99% to 19.49% depending upon delivery time and method of payment used for the transaction. The Republic of Cuba reportedly receives approximately 20% of the fee paid by customers to Western Union. LINK To Western Union Company certified claim.
Mastercard
Purchase, New York-based Mastercard Incorporated removed its restriction for the Republic of Cuba on 1 March 2015.
Financial institutions which authorized their Mastercard products (credit card and debit card) for use in the Republic of Cuba: Pompano Beach, Florida-based Stonegate Bank (2017 assets approximately US$2.9 billion); San Juan, Puerto Rico-based Banco Popular of Puerto Rico; and Fort Lauderdale, Florida-based Natbank.
In 2015, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury authorized Stonegate Bank to have an account with Republic of Cuba government-operated Banco Internacional de Comercia SA (BICSA), a member of Republic of Cuba government-operated Grupo Nuevo Banca SA, created by Corporate Charter No. 49 on 29 October 1993 and commenced operation on 3 January 1994.
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; the financial institution also handles other types of OFAC-authorized transactions.
In September 2017, Stonegate Bank was purchased by Conway, Arkansas-based Home BancShares (2019 assets approximately US$14 billion) through its Centennial Bank subsidiary.
The Obama Administration did not authorize BICSA under a general OFAC license or reportedly in the OFAC license issued to Stonegate Bank for it to have an account with Stonegate Bank, so Stonegate Bank has processed transactions for approximately eighty (80) customers on a regular basis through Panama City, Panama-based Multibank, which has dealings with the Republic of Cuba.
Why Is State Department Hiding Data That Will Confirm What It Says Its Doing?
Title IV Explanation Letter- A Shot Across The Bow
Title IV Determination Letter- Been Hit And Taking On Water
More than one year ago, the Trump Administration, using a robust high-level marketing presentation, made operational Title III and further implemented Title IV of the Cuban Liberty and Democratic Solidarity Act of 1996 (known as “Libertad Act”).
However, arbitrarily and absent of legal basis, the United States Department of State has refused (including through the use of the Freedom of Information Act) to divulge data relating to Title IV letters sent during the Trump Administration, Obama Administration, Bush Administration and Clinton Administration. There are approximately twenty-five Title IV letters sent since 1996.
From United States Department of State: “We appreciate your interest in the Department’s policies toward Cuba and in companies dealing in expropriated properties. Unfortunately, we are unable to share information about specific Title IV enforcement actions, including the number of Title IV letters. We can say we have dozens of cases open and under investigation. When the Department makes a determination, the corporate officers subject to visa and entry restrictions are notified, but we cannot provide any more detail than that.” 10 February 2020
The Clinton Administration, Bush Administration and Obama Administration similarly refused requests to provide data relating to issuance of Title IV letters.
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. To date, twenty-five lawsuits have been filed.
Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims. Since 1996, three companies have confirmed receiving Title IV letters; other companies have been reported by media and by parties to filed Title III lawsuits as having received Title IV letters.
Given the Trump Administration’s decision to permit the use of the Libertad Act, and continuing efforts to promote its use of the Libertad Act, nonsensical for the United States Department of State to not want to publicize what previous presidencies did not publicize.
There are no statutes preventing the United States Department of State from providing data- the number of Title IV letters sent during each presidency; the number of countries where recipients of Title IV letters are located; the number of individuals sanctioned using Title IV; the number of Title IV letter recipients who having received a Title IV letter, sought and received dispensation from the United States Department of State; and the number of recipients who, after receiving a Title IV letter, ceased “trafficking” as defined by the Libertad Act.
There is value to current plaintiffs and defendants and to potential plaintiffs and defendants from having data from which they weigh the value of their lawsuit, the value of filing a lawsuit, the value of seeking a settlement, and the value of seeking a Title IV letter.
There are two (2) types of Title IV letters. The first is explorational- the United States Department of State writes it has received information about a possible violation(s) of Title III and requests from the recipient information to refute the information. The second is determinational- the United States Department of State writes it believes the violation of Title III to be true and unless “trafficking” ceases, within forty-five days senior-level executives and their immediate family members will be denied entry to the United States until the violation is correct.
One Title IV letter may impact more than one individual- members of board of directors, individuals and families with significant ownership may also be subject to visa restrictions.
Those who request the United States department of State to send a Title IV letter are not necessarily informed by the United States Department of State that a Title IV letter has been sent on their behalf.
The Trump Administration is believed to have issued more Title IV letters than previous presidencies- perhaps more than all previous presidencies combined.
In July 1996, the first Title IV letter was sent (and confirmed by the company) to Toronto, Canada-based Sherritt International Corporation (2019 revenues approximately US$400 million). In August 1996, the second Title IV letter was sent (although not confirmed by the company) to Monterrey, Mexico-based Grupo Domos. The same year (although not confirmed by the company) Mexico City, Mexico-based CEMEX S.A.B. de C.V. (2019 revenues approximately US$13.1 billion) received a Title IV letter. In November 1997, Tel Aviv, Israel-based Grupo B.M. confirmed receipt of a Title IV letter.
In October 2019, Mr. Gabriel Escarrer, Founder and CEO of Palma, Spain-based Melia Hotels International S.A. (2019 revenues approximately US$2 billion), confirmed receipt of a Title IV letter; Mr. Escarrer and members of his immediate family are now restricted from entering the United States. According to the Associated Press (AP): “The European Union's ambassador to Cuba, Alberto Navarro, said he was aware of 14 members of Meliá’s board and their families being subject to U.S. sanctions.” Melia Hotels International S.A. has been listed as a defendant in one Title III lawsuit and the company reported in a statement it believes more than 50 other companies have received similar notifications. However, according to the AP, “[t]he Spanish government said it was aware of only Meliá having been targeted by the State Department, not any other Spanish companies.”
TITLE IV--SEC. 401. EXCLUSION FROM THE UNITED STATES OF ALIENS WHO HAVE CONFISCATED PROPERTY OF UNITED STATES NATIONALS OR WHO TRAFFIC IN SUCH PROPERTY.
(a) Grounds for Exclusion.--The Secretary of State shall deny a visa to, and the Attorney General shall exclude from the United States, any alien who the Secretary of State determines is a person who, after the date of the enactment of this Act-- (1) has confiscated, or has directed or overseen the confiscation of, property a claim to which is owned by a United States national, or converts or has converted for personal gain confiscated property, a claim to which is owned by a United States national; (2) traffics in confiscated property, a claim to which is owned by a United States national; (3) is a corporate officer, principal, or shareholder with a controlling interest of an entity which has been involved in the confiscation of property or trafficking in confiscated property, a claim to which is owned by a United States national; or (4) is a spouse, minor child, or agent of a person excludable under paragraph (1), (2), or (3).
UNITED STATES: DEPARTMENT OF STATE STANDARD LANGUAGE TITLE IV DETERMINATION LETTER ON DENYING VISAS UNDER THE HELMS-BURTON A [1996]
“Letter of notification to corporate officer or principal of company trafficking in confiscated U.S.-claimed property as defined in the Helms-Burton Act; the letter states that such officer or principal and his or her agents and immediate family members are excludable from the United States unless he or she withdraws from such position as officer or principal; such officer or principal is offered an opportunity to provide exonerating information to the Office of Cuban Affairs of the U.S. Department of State
Date:
Name:
Title:
Company:
Address:
Dear:
The Department of State has determined that COMPANY (and SUBSIDIARY- optional language) is trafficking in confiscated U.S.-claimed property as defined under Title IV of the Cuban Liberty and Democratic Solidarity (Libertad) Act…”
SUPPLEMENTARY INFORMATION:
Department of State Guidelines for Implementation of Title IV of the LIBERTAD Act
1. Purpose and Authority. These guidelines will be used by the Department of State (``Department'') for the purpose of implementing Title IV of the Cuban Liberty and Democratic Solidarity Act of 1996, P.L. 104-114, 22 U.S.C. Sec. 6021 et seq., also known as the Libertad Act or Helms-Burton Act (``Act''), and other applicable legislation as appropriate.
2. Delegation of Authority. The Secretary of State has delegated authority to the Assistant Secretary of State for Inter-American Affairs to make determinations of excludability and visa ineligibility under section 401(a) of the Act.
3. Point of Contact. The Office of Cuban Affairs in the Bureau of Inter-American Affairs at the Department is the central point of contact for all inquiries about implementation of Title IV of the Act. The Office may be contacted in Room No. 3244, U.S. Department of State, Washington, DC 20520; telephone number 202-647-7505.
4. Collection of Information-- a. As resources permit, the Department may collect information from available sources on whether property in Cuba owned by a U.S. national has been confiscated or whether trafficking in such property confiscated from a U.S. national has occurred.
b. If the Department has information indicating that certain property may have been confiscated or subject to trafficking, it may request the Foreign Claims Settlement Commission (FCSC) to inform it whether the property in question was the subject of an FCSC-certified claim. the Department may also obtain information from the FCSC and other available sources about the current ownership of an FCSC-certified claim, including whether it is owned by a U.S. national.
c. For non-certified claims, the Department may request claimants to provide additional information related to ownership and confiscation of, or trafficking in, the property concerned.
d. The department will consult as appropriate with other agencies of the U.S. government and other sources regarding the identify of principals, officers, and controlling shareholders, and their agents, spouses, and minor children, or entities that may have confiscated property owned by a U.S. national or trafficked in such property.
5. Determinations of excludability and Ineligibility. Determinations of ineligibility and excludability under Title IV will be made when facts or circumstances exist that would lead the Department reasonably to conclude that a person has engaged in confiscation or trafficking after March 12, 1996.
6. Prior Notification.--a. An alien who may be the subject of a determination under Title IV will be sent notification by registered mail that his/her name will be entered in the visa lookout system and port of entry exclusion system, and that he/she will be denied a visa upon application or have his/her visa revoked, 45 days after the date of the notification letter. the alien will be informed that divesting from a ``trafficking'' arrangement would avert the exclusion. the Department may inform the government of the alien's country of nationality in confidence through diplomatic channels of the name of any corporation or other entity related to this action.
b. If no information is received within the 45 day period above that leads the Department reasonably to conclude (i) that the alien or company involved has not engaged in trafficking or is no longer doing so, or (ii) that an exception to trafficking under section 401(b)(2)(B) applies, the Department will notify consular officers and the Immigration and Naturalization Service (``INS'') of a determination by entering the alien's name, including the names of the alien's agents, spouse and minor children, if applicable, in the appropriate lookout system, and a visa application from the named alien will be denied or a visa revoked in accordance with the law. Entry of the named alien into the appropriate lookout systems will be the exclusive means by which consular officers and the INS will verify that the alien has been determined to be excludable under section 401 of the Act.
7. Exemptions. The Department may grant an exemption for diplomatic and consular personnel of foreign governments, and representatives to and officials of international organizations. An alien may request from the Department an exemption for medical reasons or for purposes of litigation of an action under Title III of the Act to the extent permitted under section 401(c) of the Act. The Department will notify Department consular officers and the INS through appropriate channels of the decision to grant an exemption to a person otherwise excludable under Title IV of the Act. The Department may impose appropriate conditions on any exemption granted.
8. Review of Determinations. The Department may review a determination made under Title IV at any time, as appropriate, upon the receipt of information indicating that the determination was in error, that a person has ended all involvement with confiscated U.S. property in Cuba, that an exception applies under section 401(b)(2)(B), or that an exemption should be granted under section 401(c).
9. Definitions.--a. ``Agent'' means a person who acts on behalf of a corporate officer, principal, or shareholder with a controlling interest to carry out or facilitate acts or policies that result in a determination under section 401(a) of the Act.
b. ``Confiscate'' means the same as the term defined in section 401(b)(1) of the Act.
c. ``Corporate officer'' means the president, chief executive officer, principal financial officer, principal accounting officer (or, if there is not accounting officer, the controller), any vice president of the entity in charge of a principal business unit, division or function (such as sales, administration or finance), or any other officer or person who performs policy-making functions for the entity. Corporate officers of a parent or subsidiary of the entity may be deemed corporate officers of the entity if they perform policy-making functions for the entity. (This definition is derived from, and will in general be applied consistent with, the definition of ``officer'' in 17 CFR Sec. 240.16a-1(f)).
d. ``Minor child'' means a person who is under 18 years of age and who is a child as defined in 8 U.S.C. Sec. 1101(b)(1).
e. ``Person'' means the same as the term defined in section 4(11) of the Act.
f. ``Principal'' means: (i) When the entity is a general partnership, any general partner and any officer or employee of the general partnership who performs a policy-making function for the partnership, (ii) when the entity is a limited partnership, any general partner and any officer or employee of a general partner of the limited partnership who performs a policy-making function for the limited partnership, (iii) when the entity is a trust, any trustee and any officer or employee of the trustee who performs a policy-making function for the trust, and (iv) any other person who performs similar policy-making functions for the entity. (This definition is derived from, and will in general be applied consistent with, the definition of ``officer'' in 17 CFR Sec. 240.16a-1(f).)
g. ``Shareholder with a controlling interest'' means a person possessing the power, directly or indirectly, to direct or cause the direction of the management and policies of the entity through the ownership of voting securities. (This definition is derived from, and will in general be applied consistent with, the definition of ``control'' in 17 CFR Sec. 230.405.)
h. ``Traffics'' means the same as the term defined in section 401(b)(2) of the Act.
i. ``Transactions and uses of property incident to lawful travel in Cuba'' are such incidental transactions and uses of confiscated property as are necessary to the conduct of lawful travel to Cuba.
10. Persons with Business Dealings with Persons Subject to a Determination. It is not sufficient in itself for a determination under section 401(a) that a person has merely had business dealings with a person for whom a determination is made under section 401(a).
11. Confidentiality of Records. Department records pertaining to the issuance or denial of a visa under section 401(a), including records related to the determination of ineligibility or excludability, are confidential consistent with section 222(f) of the Immigration and Nationality Act, 8 U.S.C. 1202(f).
12. No Right of Action. Nothing in these guidelines will create any right or benefit, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or its employees, or any other person.
13. Publication and Revision of these Guidelines. These guidelines will be published in the Federal Register, and will become effective upon publication. Revisions may be made as appropriate and published in the Federal Register.
Dated: June 12, 1996. Jeffrey Davidow, Acting Assistant Secretary of State for Inter-American Affairs, Department of State. [FR Doc. 96-15406 Filed 6-14-96; 8:45 am]
Libertad Act
The Trump Administration has made operational Title III and further implemented Title IV 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.
Title IV restricts entry into the United States by individuals who have connectivity to unresolved certified claims or non-certified claims. One Canada-based company is currently subject to this provision based upon a certified claim.
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.
Certified Claims Background
There are 8,821 claims of which 5,913 awards valued at US$1,902,202,284.95 were certified by the USFCSC and have not been resolved for nearing sixty years (some assets were officially confiscated in the 1960’s, some in the 1970’s and some in the 1990’s. The USFCSC permitted simple interest (not compound interest) of 6% per annum (approximately US$114,132,137.10); with the approximate current value of the 5,913 certified claims US$8,521,866,236.75.
The first asset to be expropriated by the Republic of Cuba was an oil refinery in 1960 owned by White Plains, New York-based Texaco, Inc., now a subsidiary of San Ramon, California-based Chevron Corporation (USFCSC: CU-1331/CU-1332/CU-1333 valued at US$56,196,422.73).
The largest certified claim (Cuban Electric Company) valued at US$267,568,413.62 is controlled by Boca Raton, Florida-based Office Depot, Inc. The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International; the certified claim also includes land adjacent to the Jose Marti International Airport in Havana, Republic of Cuba. The smallest certified claim is by Sara W. Fishman in the amount of US$1.00 with reference to the Cuban-Venezuelan Oil Voting Trust.
The two (2) largest certified claims total US$449,377,207.76, representing 24% of the total value of the certified claims. Thirty (30) certified claimants hold 56% of the total value of the certified claims. This concentration of value creates an efficient pathway towards a settlement.
The ITT Corporation Agreement
In July 1997, then-New York City, New York-based ITT Corporation and then-Amsterdam, the Netherlands-based STET International Netherlands N.V. signed an agreement whereby STET International Netherlands N.V. would pay approximately US$25 million to ITT Corporation for a ten-year right (after which the agreement could be renewed and was renewed) to use assets (telephone facilities and telephone equipment) within the Republic of Cuba upon which ITT Corporation has a certified claim valued at approximately US$130.8 million. ETECSA, which is now wholly-owned by the government of the Republic of Cuba, was a joint venture controlled by the Ministry of Information and Communications of the Republic of Cuba within which Amsterdam, the Netherlands-based Telecom Italia International N.V. (formerly Stet International Netherlands N.V.), a subsidiary of Rome, Italy-based Telecom Italia S.p.A. was a shareholder. Telecom Italia S.p.A., was at one time a subsidiary of Ivrea, Italy-based Olivetti S.p.A. The second-largest certified claim (International Telephone and Telegraph Co, ITT as Trustee, Starwood Hotels & Resorts Worldwide, Inc.) valued at US$181,808,794.14 is controlled by Bethesda, Maryland-based Marriott International.
What Is “Trafficking” According To Libertad Act?
(13) Traffics.--(A) As used in title III, and except as provided in subparagraph (B), a person "traffics" in confiscated property if that person knowingly and intentionally-- (i) sells, transfers, distributes, dispenses, brokers, manages, or otherwise disposes of confiscated property, or purchases, leases, receives, possesses, obtains control of, manages, uses, or otherwise acquires or holds an interest in confiscated property, (ii) engages in a commercial activity using or otherwise benefiting from confiscated property, or (iii) causes, directs, participates in, or profits from, trafficking (as described in clause (i) or (ii)) by another person, or otherwise engages in trafficking (as described in clause (i) or (ii)) through another person, without the authorization of any United States national who holds a claim to the property.
(B) The term "traffics" does not include-- (i) the delivery of international telecommunication signals to Cuba; (ii) the trading or holding of securities publicly traded or held, unless the trading is with or by a person determined by the Secretary of the Treasury to be a specially designated national; (iii) transactions and uses of property incident to lawful travel to Cuba, to the extent that such transactions and uses of property are necessary to the conduct of such travel; or (iv) transactions and uses of property by a person who is both a citizen of Cuba and a resident of Cuba, and who is not an official of the Cuban Government or the ruling political party in Cuba.
“DETERMINATION OF OWNERSHIP OF CLAIMS REFERRED BY DISTRICT COURTS OF THE UNITED STATES
"Sec. 514. Notwithstanding any other provision of this Act and only for purposes of section 302 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, a United State district court, for fact-finding purposes, may refer to the Commission, and the Commission may determine, questions of the amount and ownership of a claim by a United States national (as defined in section 4 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996), resulting from the confiscation of property by the Government of Cuba described in section 503(a), whether or not the United States national qualified as a national of the United States (as defined in section 502(1)) at the time of the action by the Government of Cuba.”
TITLE III--SEC. 302. LIABILITY FOR TRAFFICKING IN CONFISCATED PROPERTY CLAIMED BY UNITED STATES NATIONALS.
(a) Civil Remedy.-- (1) Liability for trafficking.--(A) Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages in an amount equal to the sum of-- (i) the amount which is the greater of-- (I) the amount, if any, certified to the claimant by the Foreign Claims Settlement Commission under the International Claims Settlement Act of 1949, plus interest; (II) the amount determined under section 303(a)(2), plus interest; or (III) the fair market value of that property, calculated as being either the current value of the property, or the value of the property when confiscated plus interest, whichever is greater; and (ii) court costs and reasonable attorneys' fees. (B) Interest under subparagraph (A)(i) shall be at the rate set forth in section 1961 of title 28, United States Code, computed by the court from the date of confiscation of the property involved to the date on which the action is brought under this subsection.
(2) Presumption in favor of the certified claims.--There shall be a presumption that the amount for which a person is liable under clause (i) of paragraph (1)(A) is the amount that is certified as described in subclause (I) of that clause. The presumption shall be rebuttable by clear and convincing evidence that the amount described in subclause (II) or (III) of that clause is the appropriate amount of liability under that clause.
(3) Increased liability.-- (A) Any person that traffics in confiscated property for which liability is incurred under paragraph (1) shall, if a United States national owns a claim with respect to that property which was certified by the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949, be liable for damages computed in accordance with subparagraph (C).
(B) If the claimant in an action under this subsection (other than a United States national to whom subparagraph (A) applies) provides, after the end of the 3-month period described in paragraph (1) notice to-- (i) a person against whom the action is to be initiated, or (ii) a person who is to be joined as a defendant in the action, at least 30 days before initiating the action or joining such person as a defendant, as the case may be, and that person, after the end of the 30- day period beginning on the date the notice is provided, traffics in the confiscated property that is the subject of the action, then that person shall be liable to that claimant for damages computed in accordance with subparagraph (C).
(C) Damages for which a person is liable under subparagraph (A) or subparagraph (B) are money damages in an amount equal to the sum of-- (i) the amount determined under paragraph (1)(A)(ii), and (ii) 3 times the amount determined applicable under paragraph (1)(A)(i). (D) Notice to a person under subparagraph (B)-- (i) shall be in writing; (ii) shall be posted by certified mail or personally delivered to the person; and (iii) shall contain-- (I) a statement of intention to commence the action under this section or to join the person as a defendant (as the case may be), together with the reasons therefor; (II) a demand that the unlawful trafficking in the claimant's property cease immediately; and (III) a copy of the summary statement published under paragraph (8). (4) Applicability.--(A) Except as otherwise provided in this paragraph, actions may be brought under paragraph (1) with respect to property confiscated before, on, or after the date of the enactment of this Act.
(B) In the case of property confiscated before the date of the enactment of this Act, a United States national may not bring an action under this section on a claim to the confiscated property unless such national acquires ownership of the claim before such date of enactment. (C) In the case of property confiscated on or after the date of the enactment of this Act, a United States national who, after the property is confiscated, acquires ownership of a claim to the property by assignment for value, may not bring an action on the claim under this section.
(5) Treatment of certain actions.--(A) In the case of a United States national who was eligible to file a claim with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but did not so file the claim, that United States national may not bring an action on that claim under this section. (B) In the case of any action brought under this section by a United States national whose underlying claim in the action was timely filed with the Foreign Claims Settlement Commission under title V of the International Claims Settlement Act of 1949 but was denied by the Commission, the court shall accept the findings of the Commission on the claim as conclusive in the action under this section.
(C) A United States national, other than a United States national bringing an action under this section on a claim certified under title V of the International Claims Settlement Act of 1949, may not bring an action on a claim under this section before the end of the 2-year period beginning on the date of the enactment of this Act.
(D) An interest in property for which a United States national has a claim certified under title V of the International Claims Settlement Act of 1949 may not be the subject of a claim in an action under this section by any other person. Any person bringing an action under this section whose claim has not been so certified shall have the burden of establishing for the court that the interest in property that is the subject of the claim is not the subject of a claim so certified. (6) Inapplicability of act of state doctrine. No court of the United States shall decline, based upon the act of state doctrine, to make a determination on the merits in an action brought under paragraph (1).
(7) Licenses not required. (A) Notwithstanding any other provision of law, an action under this section may be brought and may be settled, and a judgment rendered in such action may be enforced, without obtaining any license or other permission from any agency of the United States, except that this paragraph shall not apply to the execution of a judgment against, or the settlement of actions involving, property blocked under the authorities of section 5(b) of the Trading with the Enemy Act that were being exercised on July 1, 1977, as a result of a national emergency declared by the President before such date, and are being exercised on the date of the enactment of this Act.
The Trump Administration is expected to continue to use Section 7031(c) as a means to influence the behavior of the Republic of Cuba. Thus far, however, those individuals sanctioned are unlikely to feel impeded by a lack of visa to visit the United States. A question is why the Trump Administration has only chosen to identify three individuals within the Republic of Cuba who meet the criteria for Section 7031(c)? Could there be only three within a population of 11 million?
Thus far subject to Section 7031(c):
Former President Raul Castro & Family
Minister of Defense & Family
Minister of Interior & Family
From United States Department Of State: “This designation is made under Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2020 (Div. G, P.L. 116-94). Under Section 7031(c), once the Secretary of State designates officials of foreign governments for their involvement, directly or indirectly, in significant corruption, those individuals and their immediate family members are ineligible for entry into the United States. The law also requires the Secretary of State to either publicly or privately designate or identify such officials and their immediate family members.”
Sec. 7031. (c) Anti-Kleptocracy and human rights. (1) INELIGIBILITY.
(A) Officials of foreign governments and their immediate family members about whom the Secretary of State has credible information have been involved in significant corruption, including corruption related to the extraction of natural resources, or a gross violation of human rights shall be ineligible for entry into the United States.
(B) The Secretary shall also publicly or privately designate or identify officials of foreign governments and their immediate family members about whom the Secretary has such credible information without regard to whether the individual has applied for a visa.
(2) EXCEPTION.—Individuals shall not be ineligible if entry into the United States would further important United States law enforcement objectives or is necessary to permit the United States to fulfill its obligations under the United Nations Headquarters Agreement: Provided, That nothing in paragraph (1) shall be construed to derogate from United States Government obligations under applicable international agreements.
(3) WAIVER.—The Secretary may waive the application of paragraph (1) if the Secretary determines that the waiver would serve a compelling national interest or that the circumstances which caused the individual to be ineligible have changed sufficiently.
LINK To Previous Posts:
U.S. Designates Cuba's Minister Of Interior And His Children Under Section 7031(c); Raul Castro & Family Designated In September; More Designations Expected
16 November 2019
https://www.cubatrade.org/blog/2019/11/16/us-designates-cubas-minister-of-interior-and-his-children-under-section-7031c-more-designations-expected?rq=7031
U.S. Department Of State Designates General Raul Castro, Former President Of Cuba
26 September 2019
https://www.cubatrade.org/blog/2019/9/26/us-department-of-state-designates-general-raul-castro-former-president-of-cuba?rq=7031
United States Department Of State Designates Minister Of Defense Of Cuba For Violations Of Human Rights
2 January 2020
https://www.cubatrade.org/blog/2020/1/2/united-states-department-of-state-designates-minister-of-defense-of-cuba-for-violations-of-human-rights?rq=7031
The Trump Administration continues to focus upon countries that register merchant vessels where those vessels transport products to/from the Republic of Cuba and Venezuela. The governments of Panama, which has the largest (17%) registration of vessels (approximately 8,000 representing approximately 217 million gross tons) , and Liberia, with the second-largest registration of vessels, have been particular targets. Reportedly, the tenor of some of the conversations initiated by officials of the Trump Administration have been less then courteous.
From Wikipedia: Flag of convenience (FOC) “is a business practice whereby a ship's owners register a merchant ship in a ship register of a country other than that of the ship's owners, and the ship flies the civil ensign of that country, called the flag state. The term is often used pejoratively, and the practice is regarded as contentious. Each merchant ship is required by international law to be registered in a registry created by a country, and a ship is subject to the laws of that country, which are used also if the ship is involved in a case under admiralty law. A ship's owners may elect to register a ship in a foreign country which enables it to avoid the regulations of the owners’ country which may, for example, have stricter safety standards. They may also select a jurisdiction to reduce operating costs, bypassing laws that protect the wages and working conditions of mariners. The term "flag of convenience" has been used since the 1950s. A registry which does not have a nationality or residency requirement for ship registration is often described as an open registry. Panama, for example, offers the advantages of easier registration (often online) and the ability to employ cheaper foreign labour. Furthermore, the foreign owners pay no income taxes.”
BBC
London, United Kingdom
Excerpts For Background: “Most merchant ships flying Panama's flag belong to foreign owners wishing to avoid the stricter marine regulations imposed by their own countries. Panama operates what is known as an open registry. Its flag offers the advantages of easier registration (often online) and the ability to employ cheaper foreign labour. Furthermore the foreign owners pay no income taxes. Under international law, every merchant ship must be registered with a country, known as its flag state. That country has jurisdiction over the vessel and is responsible for inspecting that it is safe to sail and to check on the crew's working conditions. Open registries, sometimes referred to pejoratively as flags of convenience, have been contentious from the start. Panama now has the largest registry in the world. The registry is lucrative for Panama, bringing in [more than] half a billion dollars for the economy in fees, services and taxes. However, critics of the system point to the ease of hiding the true identity of shipowners and the lax enforcement of rules and regulations.”
The Hague, The Netherlands-based Secretariat Paris Memorandum of Understanding On Port State Control: “The organization consists of 27 participating maritime Administrations and covers the waters of the European coastal States and the North Atlantic basin from North America to Europe. The current member States of the Paris MoU are: Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, Slovenia, Spain, Sweden and the United Kingdom. Mission is to eliminate the operation of sub-standard ships through a harmonized system of port State control. Annually more than 17.000 inspections take place on board foreign ships in the Paris MoU ports, ensuring that these ships meet international safety, security and environmental standards, and that crew members have adequate living and working conditions. Basic principle is that the prime responsibility for compliance with the requirements laid down in the international maritime conventions lies with the shipowner/operator. Responsibility for ensuring such compliance remains with the flag State.”
Flag Of Convenience (FOC) Countries
“The International Transport Workers’ Federation (ITF) is a democratic, affiliate-led federation recognised as the world’s leading transport authority. We fight passionately to improve working lives, connecting trade unions from 150 countries that may otherwise be isolated and helping their members to secure rights, equality and justice. We are the voice for nearly 20 million working men and women across the world. Our headquarters is located in London with offices in Amman, Brussels, Nairobi, New Delhi, Ouagadougou, Rio de Janeiro, Singapore, Sydney and Tokyo.”
“The following countries have been declared FOCs by the ITF’s fair practices committee (a joint committee of ITF seafarers' and dockers' unions), which runs the ITF campaign against FOCs: Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda (UK), Bolivia, Cambodia, Cayman Islands, Comoros, Cyprus, Equatorial Guinea, Faroe Islands (FAS), French International Ship Register (FIS), German International Ship Register (GIS), Georgia, Gibraltar (UK), Honduras, Jamaica, Lebanon, Liberia, Malta, Madeira, Marshall Islands (USA), Mauritius, Moldova, Mongolia, Myanmar, Netherlands Antilles, North Korea, Panama, Sao Tome and Príncipe, St Vincent, Sri Lanka, Tonga, Vanuatu.”
“The below table shows the Flags of Convenience as declared by ITF along with the recent information (Source: Central Intelligence Agency, as of January 2017) in regards to their profile (i.e. the total number of vessels and foreign vessels) under each registry: Table 1: Flags of Convenience:”
U.S. Department of Transportation Issues Order Finalizing Procedures to Distribute Public Charter Flights Between the United States and Havana, Cuba
Thursday, May 28, 2020
The U.S. Department of Transportation (DOT) today issued an Order finalizing procedures to distribute public charter flights between the United States and Havana, Cuba. The Order also grants an initial allocation of charters to the carriers Swift Air and World Atlantic Airlines for U.S.-Havana public charter flights between June 1, 2020, and May 31, 2021. The remaining charters will be maintained in a charter pool for distribution on a first-come, first-served basis to interested carriers. Carriers receiving flights work with tour operators that arrange the charter programs. Earlier this year, DOT announced that it would implement a cap on Havana public charter flights in response to a request from the U.S. Department of State. Then, in a show-cause order, DOT proposed tentative procedures to implement the cap and invited comments from interested parties. Today’s Order finalizes the tentative procedures with certain modifications made in response to the comments filed on the record of the proceeding.
The final Order can be found at www.regulations.gov, by searching “Docket DOT-OST-2020-0011.”
Cuba Advocates Shouldn’t Be So Confident About President Biden
Might & Might Not Do
Might Require President Diaz-Canel To Do
United States Companies Are Deliberately MIA
Cuba Resolving Venezuela Issues Would Change Dynamic
28 April 2020 from The Hill: “In large part, I would go back,” Biden said in an interview with a CBS affiliate in Miami. “I’d still insist they keep the commitments they said they would make when we, in fact, set the policy in place.”
Therefore, the most important questions for a Biden Administration: Has the Republic of Cuba kept its commitments to the [Barack] Obama Administration? Is legitimate for the Republic of Cuba to blame the Trump Administration for the Republic of Cuba not keeping commitments to the Obama Administration?
One perception among some in the United States Congress is the Obama Administration required little of the Republic of Cuba and the [Raul] Castro Administration squandered its commercial, economic and political moments which could have cemented the bilateral relationship rather than having nothing which was neither alterable nor reversible.
Another perception is a lack of empathy towards the Republic of Cuba as to the impact of Trump Administration decisions upon revenues from visitors. Among even advocates, there is shared agreement that the Republic of Cuba viewed the Obama Administration decisions to permit and to encourage individuals subject to United States jurisdiction to visit the Republic of Cuba became for the Castro Administration similar to the role of the U.S.S.R., China and Venezuela- a new benefactor whose financial support would permit the Republic of Cuba to forestall foundational commercial, economic and political changes- why change when others would pay for it not to change.
The Republic of Cuba must avoid connecting Trump Administration policies with [Miguel] Diaz-Canel Administration policies. Blaming Washington for Havana’s decisions will not have many sympathetic partners (particularly those with influence) on Capitol Hill. Seeking a quid-pro-quo will not find support.
If on 3 November 2020 The Honorable Joseph Robinette Biden, Jr. defeats The Honorable Donald John Trump, then advocates in the United States and the Republic of Cuba should not expect the Biden Administration to immediately nor in the medium-term reverse many or all of President Trump’s decisions relating to the Republic of Cuba.
If the [Nicolas] Maduro Administration remains in control of Venezuela through the transfer of power in Washington DC on Inauguration Day at 12:00 pm on 20 January 2021, and the Diaz-Canel Administration continues to provide support to Venezuela and Venezuela continues to provide subsidized oil products to the Republic of Cuba, then President Biden will have an even narrower range of options.
If, however, the Diaz-Canel Administration delivers an early resolution to issues relating to Venezuela- providing a safe-haven for members of the Maduro Administration, the Biden Administration would likely reward the Republic of Cuba- including support for a transparent four-year wind-down of subsidized oil deliveries from Venezuela and an agreement not to seek extradition of members of the Maduro Administration indicted by the United States Department of Justice.
The connectivity between the Republic of Cuba and Venezuela, while the Diaz-Canel Administration disputes the depth of that connectivity, does exist and has metastasized to impactfully define how the United States public sectors and private sectors view the bilateral relationship between the United States and the Republic of Cuba.
United States company c-suite executives don’t have an answer for and don’t want to answer: “Cuba supports Maduro; why would you want to do business with them?” Facts-on-the-ground don’t matter as much as public perception. Instructive to note that the most recent visit to the Republic of Cuba by a United States governor was 2017.
While President Biden will endeavor to differentiate his “strength” from the definition embraced by his predecessor, the newly-installed head of state will not want to appear weak- and there are members of the Democratic Party who believe (or need to believe to ensure their re-election) that President Trump, while often inarticulate and offensive with his use of words, has achieved beneficial, if in some instances not fully-achieved results with “fairness issues,” particularly with efforts including the United States-Mexico-Canada Agreement, Universal Postal Union rates, World Trade Organization rules, NATO member payments, Russia sanctions, and trade agreements (China, Japan, South Korea among others). President Biden may embrace much of the Trump Administration outside-our-borders policies, but doing so less in public than in private.
If on 20 January 2021 the United States Senate remains in control of the Republican Party, then President Biden will tread carefully with respect to the Republic of Cuba and Venezuela because he will need approval of his spending requests, confirmation of his administration nominees and judicial nominees, and support for treaties, bilateral agreements and multi-lateral agreements.
If the United States Senate is in control of the Democratic Party and the United States House of Representatives remains in control of the Democratic Party, then President Biden might find legislative initiatives relating to the Republic of Cuba and Venezuela heading to the Resolute desk for his signature. However, the Republican Party members in the United States Senate would retain substantial legislative authority to impact legislation relating to the Republic of Cuba.
With perhaps two Associate Justices of the United States Supreme Court likely to retire during the first year of President Biden’s term, he will be loath to do anything to jeopardize his nominees.
Issues relating to the Republic of Cuba will, as they often are, be commoditized, thus tradeable for more important objectives. The Republic of Cuba needs to make itself relevant rather await the United States to make it relevant.
Instructive to note from 20 January 2009 through 20 January 2017, and in particular from 17 December 2014 through 20 January 2017- the “period of re-engagement” when embassies were re-opened, the Obama Administration (led by some on the National Security Council staff) did not permit direct correspondent banking- perhaps the most basic foundation for bilateral commerce: the ability of a purchaser to directly electronically transfer funds to a seller within minutes to hours rather than days required for a purchaser using a financial institution (which receives a fee) located in a third country to transfer funds.
During the Obama Administration more than US$3 billion was transferred from the Republic of Cuba through third country financial institutions to United States companies for payments relating to agricultural commodities, food products, and healthcare products; and billions of dollars (including remittances, aircraft landing fees, dock fees, telecommunications fees, etc.) were transferred from United States companies through financial institutions in third countries, particularly Panama, to the Republic of Cuba.
Enabling direct correspondent banking would be one immensely significant decision by the Biden Administration as it would benefit authorized commercial transactions and compel Republic of Cuba government-operated financial institutions to be transparent and comply with United States regulations, resulting in greater confidence towards the Republic of Cuba and increased accountability by the Republic of Cuba.
President Biden will be a one-term president, and likely will confirm as much prior to the election in November 2020. Most first-term presidents avoid issues relating to the Republic of Cuba until well into their second term. He may not, however, feel encumbered from initiating dynamic or controversial decisions as would a newly-inaugurated president preparing immediately for a second term. His Madam Vice President may have differing views in preparing to be the presidential nominee of the Democratic Party in 2024.
The Biden Administration will have the benefit of reviewing the past as a guide for the future. What the Trump Administration did, what the Obama Administration did, what the Castro Administration did, and what the Diaz-Canel Administration is doing to determine what worked and what failed- and the reasons for each.
President Biden Might Seek From The Republic Of Cuba
· Cease support for Maduro Administration
· Permit United States companies to establish offices
· Permit direct payment to employees who are Republic of Cuba nationals
· Remove restrictions upon the self-employed
· Provide definitive explanation for injuries suffered by United States diplomats
· Negotiate settlement for the 5,913 certified claims
· Seek return of fugitives for crimes committed in New Jersey
President Biden Might Do (But Unlikely Rush To Do)
· Reinstate regularized government-to-government dialogue for departments and agencies
· Re-authorize commercial airline flights to all Republic of Cuba cities
· Use recess appointment to install United States ambassador
· Meet with President Diaz-Canel during the United Nations General Assembly
· Re-authorize unlimited remittances
· Debate re-authorizing People-To-People travel category
· Not soon re-authorize cruise ships
· Re-authorize U-turn financial transactions
· Authorize direct correspondent banking
· Remove travel restrictions upon diplomats from the Republic of Cuba
· Retain Libertad Act Title III lawsuits
· Permit students unimpeded travel to the Republic of Cuba
· Lessen use of Libertad Act Title IV letters
· Remove (if Trump Administration adds) from list of countries supporting terrorism
· Retain on list of countries not cooperating with United States counterterrorism efforts
· Reduce United States content rules for export controls
· Permit Republic of Cuba to replace its ambassador in Washington
What Might Happen Within The First Three Months
· Reinstate regularized government-to-government dialogue for departments and agencies
· Re-authorize commercial airline flights to all Republic of Cuba cities
· Retain Libertad Act Title III lawsuits
What Might Happen Within The First Six Months
· Re-authorize unlimited remittances
· Remove travel restrictions upon diplomats from the Republic of Cuba
· Discuss re-authorization of highly restrictive People-To-People travel category
What Might Happen Within The First Year
· Reduce United States content rules for export controls
· Permit students unimpeded travel to the Republic of Cuba
· Authorize direct correspondent banking
The Republic of Cuba is wishing-upon-a-star for President Trump to be defeated. However, unlike the catastrophic strategy implemented in 2015/2016 by the Republic of Cuba and Obama Administration when they convinced themselves The Honorable Hillary Clinton would not be defeated, the Republic of Cuba has modeled for President Trump’s second term and President Biden’s first term. Regardless of who wins, the Republic of Cuba should not be rejoicing.
Neither President Trump in his second term nor President Biden in his first term will be soon arriving to Jose Marti International Airport in Havana.
In September 2020, when the United Nations General Assembly meets in New York City, President Diaz-Canel should attend and request meetings with President Trump and with former Vice President Biden. That is what many other heads of state and heads of government who are thinking strategically will be doing.
MARIO DEL VALLE, ENRIQUE FALLA, MARIO ECHEVARRIA V. EXPEDIA, INC., HOTELS.COM L.P., HOTELS.COM GP, ORBITZ, LLC, BOOKING.COM B.V., BOOKING HOLDINGS INC. Initial defendants were: TRIVAGO GMBH, BOOKING.COM B.V., GRUPO HOTELERO GRAN CARIBE, CORPORACION DE COMERCIO Y TURISMO INTERNACIONAL CUBANACAN S.A., GRUPO DE TURISMO GAVIOTA S.A., RAUL DOE I-5, AND MARIELA ROE 1-5, [1:19-cv-22619; Southern Florida District]
Rivero Mestre LLP (plaintiff)
Manuel Vazquez, P.A. (plaintiff)
Scott Douglass & McConnico (defendant)
Akerman (defendant)
Excerpts:
“Now before the Court are the Defendants’ motions to dismiss. The Defendants Booking.com BV and Booking Holdings Inc. (the “Booking Defendants”) filed a motion to dismiss (ECF No. 52), and the Defendants Expedia Group, Inc., Hotels.com L.P., Hotels.com GP, and Orbitz, LLC (the “Expedia Defendants”) filed a separate motion to dismiss (ECF No. 53). For the reasons set forth below, the Defendants’ motions are granted.”
“In sum, the Court grants the Defendants’ motions to dismiss (ECF Nos. 52, 53) without leave to amend.2 The Plaintiffs have had multiple opportunities to plead jurisdiction and have failed to do so. Further, the Plaintiffs have not requested leave to amend; nor have they indicated in their response to the Defendants’ motion any inclination whatsoever to do so. Wagner v. Daewoo Heavy Industries Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (“A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.”); Avena v. Imperial Salon & Spa, Inc., 17-14179, 2018 WL 3239707, at *3 (11th Cir. July 3, 2018) (“[W]e’ve rejected the idea that a party can await a ruling on a motion to dismiss before filing a motion for leave to amend.”). The Court directs the Clerk to close this case. Any pending motions are denied as moot.”
The Paris, France-based Paris Club of Creditor Nations (Paris Club) members: Australia, Austria, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Ireland, Israel, Italy, Japan, the Netherlands, Norway, the Russian Federation, South Korea, Spain, Sweden, Switzerland, the United Kingdom and the United States.
The fourteen members of the Paris Club members who are parties to a 2015 agreement with the Republic of Cuba: Austria, Australia, Belgium, Canada, Denmark, Finland, France, Italy, Japan, Spain, Sweden, Switzerland, the Netherlands, and United Kingdom.
The countries owed by the Republic of Cuba have few palatable choices: 1) accept the offer by the Republic of Cuba 2) present a counteroffer seeking more than the offer by the Republic of Cuba or 3) Permit another default by the Republic of Cuba.
Regardless, governments and companies will never receive what they were initially owed by the Republic of Cuba- and with each delay, they receive less.
The Trump Administration, while unable to block revision of debt agreements by some Paris Club members, will advocate that members require the Republic of Cuba to maintain obligations or at minimum implement commercial, economic and political changes that further enhance the opportunity to earn foreign exchange.
The Trump Administration position to those countries owned money- Don’t permit the Republic of Cuba to continue to function as it does solely because governments continually subsidize every financial transaction with the country. The Republic of Cuba should not be “permitted to continue to operate as it does simply to make an ideological point; the country must support itself.”
The Trump Administration mantra to participating Paris Club members will be: Provide first a good deal for member governments and their respective taxpayers rather than a good deal for the Republic of Cuba and second “don’t negotiate like the European Union, negotiate like Donald Trump.”
To make sovereign debt and commercial debt payments, the Republic of Cuba depends upon 1) stable commodity prices for exports 2) stable commodity prices for imports (most importantly, agricultural commodities and oil) 3) increasing Direct Foreign Investment (DFI) 4) increasing tourism net profits 5) continuing short-term, medium-term and long-term government-to-government loans and grants and 6) continuing medium-term to long-term commercial financing for imports.
Without changes to the commercial, economic and political structures within the Republic of Cuba, there is little elasticity between fulfilling obligations and default on obligations.
Cuba seeks delay in debt repayment to 2022: diplomats
by Katell ABIVEN
Agence-France Presse
20 May 2020
Cuba has asked the Paris Club of major creditors for a delay in repaying its debt until 2022, citing the impact of the coronavirus pandemic on its economy, diplomatic sources told AFP on Wednesday.
In a letter sent to 14 Paris Club countries to whom Cuba owes money including Britain, Canada, France and Japan, Deputy Prime Minister Ricardo Cabrisas proposed "a moratorium for 2019, 2020 and 2021 and a return to paying in 2022," a diplomatic source revealed. Two other diplomats subsequently confirmed the information. All sources spoke to AFP on condition of anonymity due to the sensitive nature of the matter.
Havana missed more than $30 million in reimbursements in 2019. In February, it committed to settling that debt by May, but the virus crisis has now put paid to those plans. According to one source, the letter stipulates that Cuba would reassess its economic situation in 2021 to see if it could resume repayments.
The agreement with the Paris Club is crucial for Cuba, which has been subjected to punishing US sanctions since 1962. After an easing of tensions under Barack Obama, sanctions have been ramped up under the administration of US President Donald Trump.
In 2015, Havana renegotiated its debt with 14 Paris Club countries, wiping out $8.5 billion from an $11 billion debt, with the repayments restructured gradually until 2033. Cuba, which has suffered from food and fuel shortages, also benefited from several other creditors writing off debt: $6 billion by China in 2011, $500 million by Mexico in 2013 and $35 billion by Russia in 2014.
Havana is increasingly reliant on the European Union, which has become its main investor with almost $3.5 billion in trade in 2018. However, lockdown measures enforced to combat the pandemic have badly affected Cuba's main sources of income, such as tourism and remittances sent from Cubans abroad.
Tourism brought in $3.3 billion in 2018 but there has not been a single new visitor since March 24, putting a third of privately run businesses, and the 200,000 people they employ, at risk. Tourist numbers had already dropped by 9.3 percent in 2019 due to new restrictions on American visitors. The year-on year fall reached 16.5 percent in January and February -- and that was before Cuba closed its borders.
- 'Humanitarian crisis' -
Remittances accounted for $3.5 billion in 2017, according to an estimate by economist Carlos Mesa-Lago. "If the economic damage in Florida (where many Cuban immigrants live) is significant, then (remittances) will fall and that will impact people's lives," said the Inter-American Dialogue think tank, warning of "a humanitarian crisis."
Another major source of income that has been hit is Cuba's export of health care workers, which brought in $6.3 billion in 2018. That has been cut by the return of 9,000 workers from countries with whom Cuba has strained diplomatic relations. "It's time to work on our reserves," said Economy Minister Alejandro Gil, because "we must save everything we can." The island nation, which imports 80 percent of goods, "reduced by 75 percent its first quarter imports" because of a lack of cash flow, said economist Omar Everleny Perez.
Cuba is desperate to avoid a default, like it suffered in 1986. It is hoping for clemency, given that the Group of 20 largest economies put in place a one-year freeze on debt repayments for the world's poorest countries, including 40 in Africa. The World Bank and International Monetary Fund have vowed to help vulnerable countries, but Cuba is a member of neither organization. The UN Economic Commission for Latin America and the Caribbean has said it expects Cuba's GDP to fall by 3.7 percent in 2020, but many experts predict a greater contraction.
USDA Accepting Applications for FY 2021 Export Programs
“The U.S. Department of Agriculture’s Foreign Agricultural Service is accepting applications from eligible organizations for fiscal year 2021 funding for five export market development programs. FAS recently published the FY 2021 Notices of Funding Opportunity for the Market Access Program, Foreign Market Development Program, Technical Assistance for Specialty Crops Program, Quality Samples Program and Emerging Markets Program. The application deadline for the five programs is June 26, 2020.
Under the Market Access Program, USDA provides competitive, cost-share assistance to U.S. exporters and agricultural, fish, and forest product trade organizations for international marketing and promotion of U.S. commodities and products. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/market-access-program-map.
Under the Foreign Market Development Program, USDA partners with nonprofit agricultural and forest product trade associations to build longer-term international demand for U.S. commodities. More information about the program and the FY 2021 funding opportunity is available at: https://www.fas.usda.gov/programs/foreign-market-development-program-fmd.”
Analysis From USCTEC
According the USDA, no request was made in Fiscal Years 2019 or 2020 to use the Republic of Cuba provision in H.R. 2, the five-year Agriculture Improvement Act, known as the “Farm Bill” signed into law on 20 December 2018 by The Honorable Donald J. Trump, President of the United States. No requests in the more than 517 days since the Republic of Cuba became eligible for funding.
In 2018, advocates maintained that the Farm Bill provision 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 request to the USDA for Fiscal Year 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 request funding on 21 December 2018- regardless of whether the USDA was expected to approve including the Republic of Cuba in Fiscal Year 2019 allocations.
The most significant impact of not having any MAP/FMD requests for Fiscal Years 2019 and 2020 to use the Republic of Cuba provision in the Farm Bill is what the lack of interest portended 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.
There has yet to be a United States agricultural commodity exporter or United States financial institution who has publicly stated that they would today provide payment terms and/or financing and what those payment terms and financing terms would be for Republic of Cuba government-operated entities. That absence- which has remained consistent since 2000, is a massive legislative hurdle. Lacking pressure, why would the Trump Administration do anything that it does not want to do?
What Is FMD & MAP?
The USDA does not provide any payments to selected applicants in advance of the applicant making disbursements. The USDA provides payment upon receipt of an invoice from the applicant. The invoices are audited by the USDA and a claw back of payments is permitted. Any Republic of Cuba-related invoice is likely to receive additional scrutiny due to an amendment to the Farm Bill submitted by The Honorable Marco Rubio (R- Florida), a member of the United States Senate.
MAP: “Through the Market Access Program (MAP), FAS partners with U.S. agricultural trade associations, cooperatives, state regional trade groups and small businesses to share the costs of overseas marketing and promotional activities that help build commercial export markets for U.S. agricultural products and commodities.”
For Fiscal Year 2020, the USDA allocated US$176,849,915.00 in taxpayer funds to 65 participants under the MAP compared to US$174,600,000.00 to 65 participants in Fiscal Year 2019 and US$173,802,447.00 to 66 participants in Fiscal Year 2018.
“MAP reaches virtually every corner of the globe, helping to build markets for a wide variety U.S. farm and food products. FAS provides cost-share assistance to eligible U.S. organizations for activities such as consumer advertising, public relations, point-of-sale demonstrations, participation in trade fairs and exhibits, market research and technical assistance. When MAP funds are used for generic marketing and promotion, participants must contribute a minimum 10-percent match. For promotion of branded products, a dollar-for-dollar match is required. Each year, FAS announces the MAP application period and criteria in the Federal Register. Applicants apply for MAP through the Unified Export Strategy (UES) process, which allows eligible organizations to request funding from multiple USDA market development programs through a single, strategically coordinated proposal. FAS reviews the proposals and awards funds to applicants that demonstrate the potential for effective performance based on a clear, long-term strategic plan.”
FMD: “The Foreign Market Development (FMD) Program, also known as the Cooperator Program, helps create, expand and maintain long-term export markets for U.S. agricultural products. Under the program, FAS partners with U.S. agricultural producers and processors, who are represented by non-profit commodity or trade associations called “cooperators,” to promote U.S. commodities overseas.”
For Fiscal Year 2020, the USDA allocated US$26,961,898.00 to 22 participants under the FMD compared to US$27,097,191.00 in taxpayer funds to 22 participants in Fiscal Year 2019 and US$26,484,947.00 to 23 participants in Fiscal Year 2018.
“The FMD program focuses on generic promotion of U.S. commodities, rather than consumer-oriented promotion of branded products. Preference is given to organizations that represent an entire industry or are nationwide in membership and scope.
FMD-funded projects generally address long-term opportunities to reduce foreign import constraints or expand export growth opportunities. For example, this might include efforts to: reduce infrastructural or historical market impediments, improve processing capabilities, modify codes and standards, or identify new markets or new uses for the agricultural commodity or product.
Each year, FAS announces the FMD application period and criteria in the Federal Register. Organizations apply for the FMD program through the Unified Export Strategy (UES) process, which allows applicants to request funding from multiple USDA market development programs through a single, strategically coordinated proposal. FAS reviews the proposals and awards funds to applicants that demonstrate the potential for effective performance based on a clear, long-term strategic plan.”
Value Of MAP/FMD
For the United States business community, the MAP/FMD amendment to the Farm Bill was significant, but more likely to provide greater financial value to the government of the Republic of Cuba than to United States food product and agricultural commodity exporters using provisions of the Trade Sanctions Reform and Export Enhancement Act (TSREEA) of 2000.
The likelihood of a value to United States taxpayers, as members of the United States Senate have posited, of US$28.00 returned for every US$1.00 in expenditures of MAP/FMD throughout the world, and now including the Republic of Cuba, will be challenging to measure- but it will be important to measure and the USDA should focus upon the cost-benefit analysis.
LINK To Analyses:
After Resisting For More Than One Year, USDA Confirms No Requests From US Groups For MAP Or FMD For Use In Cuba
https://www.cubatrade.org/blog/2020/2/26/after-resisting-for-more-than-one-year-usda-confirms-no-requests-from-us-groups-for-map-or-fmd-for-use-in-cuba?rq=FMD
USDA Requested To Publish Organizations/Funding Amounts Approved For FY2020 FMD/MAP Funds In Cuba
https://www.cubatrade.org/blog/2019/12/13/6jb1gv4vgdyxybaom3w2nf0f2jxzlq?rq=MAP
Why Is USDA Stonewalling Response To Follow-Up About FMD/MAP Funding For Which It Previously Provided Answers?
https://www.cubatrade.org/blog/2019/10/9/why-is-usda-stonewalling-response-to-follow-up-about-fmdmap-funding-for-which-it-previously-provided-answers?rq=MAP
USDA Has Up To US$201 Million Available For Cuba- Why Doesn't Any Organization Want To Use It?
https://www.cubatrade.org/blog/2019/5/12/2abai1pugt44khnn3wps4pt0f0wvcl?rq=MAP
Farm Bill: No Fiscal Year 2019 MAP/FMD Applications Submitted To USDA Included Cuba
https://www.cubatrade.org/blog/2018/8/12/h68z2i1k5qc3eizw28z10rg3hfthv2?rq=MAP
United States Department of State
Washington DC
20 May 2020
Cuban Independence Day
Michael R. Pompeo, Secretary of State
On Cuban Independence Day, I extend my warm regards and best wishes to the people of Cuba. The United States joins you in celebrating the anniversary of Cuba’s independence, 118 years ago today. The struggle of the Cuban people continues. Your democratic system was overthrown by a military dictator at the middle of the last century. But the revolution your forefathers fought for your rights, freedoms, and prosperity was hijacked by a communist dictatorship that has inflicted the worst forms of abuse on the Cuban people for 61 years.
Both Americans and Cubans alike value our independence and we seek to provide a better, more prosperous future for families, in realization of our God-given rights and dignity as individuals. We salute the brave Cubans who carry on this struggle despite the threats and abuses of the Castro regime: human rights defenders like José Daniel Ferrer and the Ladies in White; and journalists and truth-tellers like Roberto Quiñones, who by shining light on conditions in Cuba prevent the regime from hiding the truth. We salute those demanding the right to exercise their faith in peace, like Pastors Ayda Expósito Leyva and Ramón Rigal, who chose to provide their children with a faith-based home-school education but were imprisoned for doing so. These brave individuals, and many more who are unjustly imprisoned for their beliefs, or who daily face threats and abuse for standing up for what is right, are the true heirs to José Martí.
The United States stands with the Cuban people as you struggle to achieve your vision of a Cuba that is free and more just. The day when your dream of freedom becomes reality is decades overdue, but that day will come.
The White House
Washington DC
Office of the Press Secretary
FOR IMMEDIATE RELEASE
May 20, 2020
Presidential Message on Cuban Independence Day, 2020
On Cuban Independence Day, we recognize the patriots who fought to liberate Cuba from its colonial oppression and build a society founded on freedom. We continue to stand with the Cuban people as they seek those fundamental rights, and we express our commitment to supporting them as they continue to fight for freedom and democracy.
The United States has historic ties to the Cuban people and remains in solidarity with the millions who have fled the oppression of Cuba’s tyrannical regime in search of a new life. Cuba’s people deserve a government that promotes individual liberties, basic human rights, and opportunities to prosper. The Cuban model represents failed socialism, and we will continue to ensure that Cuba does not export its repression anywhere else in the Western Hemisphere. That is why I took action early in my Administration to implement a strong policy toward Cuba that promotes respect for human rights, free markets, and a transition to democracy in Cuba. America will keep working with our allies and partners in the Western Hemisphere to bring stability, religious liberty, cooperation, and a freer future to the great people of Cuba.
Today, we celebrate the many contributions of Cuban Americans to our American story, and we pledge to continue working with them to secure a better tomorrow for Cuba.
United States Department of State
Washington DC
13 May 2020
Countries Certified as Not Cooperating Fully with U.S. Counterterrorism Efforts
Office of the Spokesperson
Yesterday, the Department of State notified Congress that Iran, North Korea, Syria, Venezuela, and Cuba were certified under Section 40A(a) of the Arms Export Control Act as “not cooperating fully” with U.S. counterterrorism efforts in 2019. This is the first year that Cuba has been certified as not fully cooperating since 2015. This certification prohibits the sale or license for export of defense articles and services and notifies the U.S. public and international community that these countries are not fully cooperating with U.S. counterterrorism efforts.
Iran: In 2019, Iran continued to be the world’s largest state sponsor of terrorism, supporting Hizballah, Palestinian terrorist groups, and other terrorist groups operating throughout the Middle East. In 2019, Iran maintained its support for various Iraqi Shia terrorist groups, including Kata’ib Hizballah (KH), Harakat al-Nujaba (HAN), and Asa’ib Ahl al-Haq (AAH). Iran’s Islamic Revolutionary Guard Corps (IRGC), a designated Foreign Terrorist Organization, has been directly involved in terrorist plotting and has killed U.S. citizens. The IRGC – most prominently through its Qods Force – has the greatest role among Iranian regime actors in directing and carrying out a global terrorist campaign.
North Korea: In 2019, four Japanese individuals who participated in the 1970 hijacking of a Japan Airline flight continued to live in the DPRK. The Japanese government also continued to seek a full account of the fate of 12 Japanese nationals believed to have been abducted by DPRK state entities in the 1970s and 1980s.
Syria: Syria has continued its political and military support for terrorist groups, including the provision of weapons and political support to Hizballah. The Assad regime’s relationship with Hizballah and Iran grew stronger in 2019 as the regime became more reliant on external actors to fight opponents and secure areas. The IRGC and IRGC-backed militias remain present and active in the country with the permission of President Bashar al-Assad.
Venezuela: In 2019, Maduro and members of his former regime in Venezuela continued to provide permissive environments for terrorists in the region to maintain a presence. While Maduro was not the recognized President of Venezuela during this period, his control within Venezuela effectively precluded cooperation with the United States on counterterrorism efforts. Individuals linked to Revolutionary Armed Forces of Colombia (FARC) dissidents (who remain committed to terrorism notwithstanding the peace accord) and the National Liberation Army (ELN) were present in the country. The U.S. Department of Justice has criminally charged Maduro and certain other former regime members with running a narco-terrorism partnership with the FARC for the past 20 years.
Cuba: Members of the ELN, who travelled to Havana to conduct peace talks with the Colombian government in 2017, remained in Cuba in 2019. Citing peace negotiation protocols, Cuba refused Colombia’s request 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 60 others. As the United States maintains an enduring security partnership with Colombia and shares with Colombia the important counterterrorism objective of combating organizations like the ELN, Cuba’s refusal to productively engage with the Colombian government demonstrates that it is not cooperating with U.S. work to support Colombia’s efforts to secure a just and lasting peace, security, and opportunity for its people.
Cuba harbors several U.S. fugitives from justice wanted on charges of political violence, many of whom have resided in Cuba for decades. For example, the Cuban regime has refused to return Joanne Chesimard, who was convicted of executing New Jersey State Trooper Werner Foerster in 1973. The Cuban Government provides housing, food ration books, and medical care for these individuals.
Analysis:
There are individuals within the Trump Administration who want passionately to restore the Republic of Cuba to the State Department list of state sponsors of terrorism. The individuals, within the National Security Council at The White House and at the United States Department of State, and with support from some members of the United States Congress (House of Representatives and Senate), believe that restoration, along with including Venezuela, will assist with finalizing (before the 3 November 2020 elections in the United States) the demise of President Nicolas Maduro in Caracas and pain to President Diaz-Canel in Havana.
Restoring the Republic of Cuba to the list may also impact what remains of the United States-Republic of Cuba commercial, economic and political relationship and likely impact United States commercial relationships with third countries.
If the Republic of Cuba is returned to the List of State Sponsors of Terrorism there are practical, demonstrative impacts:
First, financial institutions would have another reason to avoid transactions with the Republic of Cuba.
Second, insurance companies could either suspend coverage of transactions and operations (vessels, ships, aircraft, etc.) and if continuing, increase the cost for coverage.
Third, transactions with the Republic of Cuba would have an increase in scrutiny, resulting in fewer governments and companies wanting to engage with it.
Will returning Cuba to the list of state sponsors of terrorism and adding Venezuela to the list of state sponsors of terrorism result in the exit of President Maduro and a lessening of support for President Maduro by President Diaz-Canel? No.
LINK To Federal Register Document
LINK:
Trump Administration Creating Foundational Narrative To Re-Designate Cuba As “State Sponsor Of Terrorism”
https://www.cubatrade.org/blog/2019/2/2/gh5oted5x2mhbtqqzejhxv1e74vkv5?rq=terrorism
Established in 1994, the U.S.-Cuba Trade and Economic Council provides an efficient and sustainable educational structure in which the United States business community may access accurate, consistent, and timely information and analysis on matters and issues of interest regarding United States-Republic of Cuba commercial, economic, and political relations.
Economic Eye On Cuba (EEOC)- posts are corrected and revised as new information becomes available
