Practitioners are generally not shy about expressing their frustration with the opacity surrounding OFAC’s operations. Getting straight answers from the agency can be a difficult and time-consuming task. Mention the OFAC Hotline and the reaction is usually a derisive snort or under-the-breath muttering (the word “interns” is often heard).
But in the interest in giving credit where credit is due, OFAC has been consistently proactive in dispensing guidance since January’s overhaul of the Cuban Assets Control Regulations (“CACR”). The agency has published a series of new Frequently Asked Questions on its website, including providing an update on a few weeks ago.
On May 5, OFAC published yet another guidance, clarifying the new rules regarding travel between the United States and Cuba. Specifically, OFAC expands on the scope of the general license for air carrier services or specific licenses for commercial passenger vessels.
In the document OFAC has underlined a number of passages, which are worth exploring in more depth.
Persons subject to U.S. jurisdiction who are traveling to/from Cuba pursuant to a general license under one of the 12 categories of travel listed in section 515.560 of the CACR or under a specific license from OFAC may be transported via aircraft or commercial passenger vessel between the United States and Cuba.
None of this is particularly new but it’s worth reinforcing that if you are a person subject to the jurisdiction of the United States under §515.329, i.e. any individual, wherever located, who is a citizen or resident of the United States or any individual physically within the United States, any travel to or from Cuba must fall under one of the 12 travel categories generally licensed by § 515.560 or under a specific license. Logically, anyone traveling from the United States is by definition a U.S. person so for instance a German tourist flying out of Miami must still certify compliance with §515.560. This gets a little more complicated with non-U.S. citizens traveling from Cuba to the United States as we’ll see below.
Cuban nationals applying for admission to the United States, as well as third-country nationals, with a valid visa or other travel authorization issued by the U.S. government may be transported via aircraft or commercial passenger vessel to the United States from Cuba…
Given that a Cuban national applying for admission to the United States or a foreign national not subject to the CACR would probably not be restricting themselves to activity generally licensed activity, this clarifies that air carriers or commercial vessels may transport non-U.S. persons from Cuba irrespective of the 12 travel categories. To reiterate however, non-Cuban foreign nationals may not travel to Cuba from the United States unless they fall within §515.560.
Cuban nationals present in the United States in a non-immigrant status or pursuant to other non-immigrant travel authorization issued by the U.S. government may be transported via aircraft or commercial passenger vessel from the United States to Cuba.
The previous point clarified that Cuban nationals with valid U.S. travel documents could travel to the United States from Cuba. This section follows by explaining that those Cubans may return to Cuba via a U.S. air carrier or commercial vessel.
Cuban nationals who have taken up residence in the United States and are licensed as unblocked nationals pursuant to 31 C.F.R. § 515.505(a)(1) are persons subject to U.S. jurisdiction and may be transported to Cuba if they meet the criteria set out in the first bullet above.
Though it simply reiterates the point above that U.S. persons may only travel to Cuba under a general or specific license, this section is a reminder to Cubans in the United States that they are in fact U.S, persons and are subject to the CACR.
An individual, including a foreign national, who is traveling on official business of the U.S. government, a foreign government, or an intergovernmental organization of which the United States is a member or in which the United States holds observer status – including an employee, contractor, or grantee of such government or intergovernmental organization and any individual traveling on a diplomatic passport – as well as any close relative accompanying the traveler may be transported via aircraft or commercial passenger vessel between the United States and Cuba
There has reportedly been some confusion about the ability to transport foreign nationals employed by foreign governments or intergovernmental organizations and whether they were covered by §515.560. The authorization to provide carrier services at §515.572 authorizes U.S. persons to provide air carrier services to or from Cuba “in connection with travel or transportation to Cuba of persons, baggage, or cargo authorized pursuant to this part” (emphasis added). §515.560 authorizes “Travel related transactions to, from, and within Cuba by persons subject to U.S. jurisdiction. So for instance, a foreign diplomat in Cuba is not subject to U.S. jurisdiction and would therefore not necessarily be covered by §515.560 and by extension air carriers could not transport them to the United States while remaining in compliance with §515.572.
OFAC has clarified that any covered foreign national or anyone on a diplomatic passport, may be transported to or from Cuba. The guidance also includes close relatives traveling with the foreign national, which does not appear in the CACR.
The rest of the document explains that air carriers and commercial vessels may carry cargo that has been otherwise authorized for export to Cuba by OFAC and/or BIS.
The key takeaway from this latest guidance is that OFAC is determined to prevent the United States from become a jumping off point for foreign tourists traveling to Cuba. It is probably not a coincidence that the new guidance coincided with the announcement that OFAC has issued at least four specific licenses operate commercial ferries between the United States and Cuba. It is not hard to believe that traveling from a third country to Miami and then hopping on a ferry would be far less costly than a direct flight to Cuba. OFAC clearly hopes to restrict any traveler, whether a U.S. person or foreign national, to the generally-licensed travel categories.