Cuba Sanctions: Legislative Restrictions Limiting the Normalization of Relations
Released: 2018-05-04T00:00:00

Introduction

Since the early 1960s, U.S. policy toward Cuba has consisted largely of isolating the island nation through comprehensive economic sanctions, including an embargo on trade and financial transactions. President John F. Kennedy proclaimed an embargo on trade between the United States and Cuba in February 1962, citing Section 620(a) of the Foreign Assistance Act of 1961 (FAA), which authorizes the President "to establish and maintain a total embargo upon all trade between the United States and Cuba." At the same time, the Department of the Treasury issued the Cuban Import Regulations to deny the importation into the United States of all goods imported from or through Cuba. The authority for the embargo was later expanded in March 1962 to include the Trading with the Enemy Act (TWEA).

In July 1963, the Department of the Treasury revoked the Cuban Import Regulations and replaced them with the more comprehensive Cuban Assets Control Regulations (CACR)— 31 C.F.R. Part 515 —under the authority of TWEA and Section 620(a) of the FAA. The CACR, which include a prohibition on most financial transactions with Cuba and a freeze of Cuban government assets in the United States, remain the main body of Cuba embargo regulations, and have been amended many times over the years to reflect changes in policy. They are administered by the Department of the Treasury's Office of Foreign Assets Control (OFAC), and prohibit financial transactions as well as trade transactions with Cuba. The CACR also require that all exports to Cuba be licensed by the Department of Commerce, Bureau of Industry and Security, under the provisions of the Export Administration Act of 1979, as amended. The Export Administration Regulations (EAR) are found at 15 C.F.R. Sections 730-774 .

Congress subsequently strengthened sanctions on Cuba through provisions in such legislation as the Cuban Democracy Act of 1992 (CDA, P.L. 102-484 , Title XVII), the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 ( P.L. 104-114 ), and the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA, P.L. 106-387 , Title IX).

Among its sanctions, the CDA prohibits U.S. subsidiaries from engaging in trade with Cuba. It also prohibits entry into the United States for any seaborne vessel to load or unload freight if it has been involved in trade with Cuba within the previous 180 days, except pursuant to a Department of the Treasury license. The LIBERTAD Act codified the economic embargo, including all restrictions under the CACR, although the President retains broad authority to amend the regulations. Nevertheless, as set forth in the LIBERTAD Act, the President cannot eliminate the embargo regulations without making a determination that a transition government is in power in Cuba. The LIBERTAD Act also requires the President to end the embargo if he determines that a democratically elected government is in power. While TSRA authorizes U.S. commercial exports to Cuba, it also includes prohibitions on U.S. government assistance and private financing and requires "payment of cash in advance" or third-country financing for the exports. The act also prohibits tourist travel to Cuba.

In addition to these key acts, there are numerous other provisions of law that impose sanctions on Cuba, including restrictions on trade, foreign aid, and support from international financial institutions.

On December 17, 2014, President Barack Obama announced major changes in policy toward Cuba, moving away from the long-standing sanctions-based policy aimed at isolating Cuba toward a policy of engagement and normalization of relations. The policy shift included three major components: (1) the rescission of Cuba's designation as a state sponsor of international terrorism; (2) the restoration of diplomatic relations; and (3) an increase in travel, commerce, and the free flow of information to and from Cuba.

The Cuban government had been designated by the State Department as a state sponsor of international terrorism in 1982 under Section 6(j) of the Export Administration Act ( P.L. 96-72 ; 50 U.S.C. 4605(j) ), as amended, and provisions of other laws because of its alleged ties to international terrorism. As part of President Obama's shift in Cuba policy, the State Department undertook a review of Cuba's designation, which ultimately was rescinded on May 29, 2015.

Diplomatic relations with Cuba had been severed by the Eisenhower Administration in January 1961 in response to the Cuban government's demand to decrease the number of U.S. Embassy staff within 48 hours. In 1977, under the Carter Administration, the United States and Cuba agreed to establish Interests sections in each other's capitals. With the Obama Administration's shift in policy, the two countries conducted four rounds of talks and ultimately reestablished diplomatic relations in July 2015, with embassies reopened in Havana and Washington.

In order to implement the Obama Administration's third component of its Cuba policy shift—increasing travel, commerce, and the flow of information—the Treasury and Commerce Departments issued five rounds of amendments to the CACR and the EAR in January and September 2015, and January, March, and October 2016. The amendments significantly eased the embargo in such areas as travel, remittances, trade, telecommunications, banking, and financial services.

When President Obama announced the shift in Cuba policy, he acknowledged that he did not have the authority to lift the embargo, but maintained that he looked forward to engaging Congress in a debate about doing so. Without a presidential determination required by the LIBERTAD Act that Cuba has a democratically elected government in place, congressional action would be required to end the embargo by amending or repealing the LIBERTAD Act and other embargo-related statutes.

On June 16, 2017, President Trump unveiled his Administration's policy on Cuba, which rolls back some of the Obama Administration's efforts to normalize relations with Cuba. The most significant policy changes, which will take until when the Treasury and Commerce Departments update the CACR and EAR, include (1) restrictions on financial transactions with companies controlled by the Cuban military, intelligence, or security services or personnel; and (2) the elimination of individual people-to-people travel. The new policy leaves most of the Obama-era policy changes in place, including the reestablishment of diplomatic relations and a variety of eased sanctions to increase travel and commerce with Cuba.

The Treasury and Commerce subsequently issued amendments to the CACR and EAR, respectively, in November 2017, to implement President Trump's policy changes. At the same time, the State Department took complementary action by publishing a list of entities controlled by the Cuban military, intelligence, or security services or personnel. Direct financial transactions that would disproportionately benefit those services or personnel at the expense of the Cuban people or private enterprise in Cuba are prohibited, with certain exceptions.