The primary administrator of America’s embargo on Cuba has traditionally been the Treasury Department’s Office of Foreign Assets Control – OFAC, with its prohibitions on transactions involving Americans and Cuba or its nationals.  As the Obama Administration relaxes that embargo, however, the Commerce Department’s Bureau of Industry and Security – BIS, with its jurisdiction over exports of commodities, software and technology – is increasingly the agency to watch for the substance of changes to what Americans do with respect to Cuba without a license issued by either OFAC or BIS.  

This is because:

  • OFAC, via a general license, authorizes US persons to enter into transactions that are normally incident to sales of items that BIS has authorized for export to Cuba
  • The Administration is relaxing the Cuba embargo primarily by having BIS add to the list of items that can go to Cuba without a BIS license.

So the way to know whether relaxations of the Cuba embargo may affect your business is to watch BIS for additions to its list of authorized items, because those items are automatically added to the list of items that US persons can deal in with Cuban nationals without an OFAC license.

That said, the Cuba embargo remains generally in place, even as exceptions proliferate.  Great care must still be exercised to ensure that particular activities are in fact authorized.

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