THE BLOG
04/25/2011 04:28 pm ET Updated Jun 25, 2011

New OFAC Guidelines Shape Cuba Travel

Finally on April 19th the Office of Foreign Assets Controls released 51 pages of guidelines implementing President Obama's new regulations on purposeful travel announced three months earlier. (Links to full text here and analysis here.)

The guidelines are a semi-breakthrough, welcome for what they do, infuriating for what they don't, and frustrating because big questions still remain on what they actually mean in practice.

In theory, most Americans should now have an option for legal albeit encumbered travel to Cuba.

The guidelines confirm the Obama Administration's significant step forward of granting general licenses for higher education students and all religious organizations -- with which 84% of Americans are affiliated. These provisions offer two broad opportunities to initiate serious engagement between the two countries without obstacles from Washington.

The language for specific licenses raises all the predicted problems of cumbersome bureaucracy wasting time on fine tuning the rights of Americans for political purposes and diverting resources from more necessary tasks.

Most attention has focused on what will flow from the comprehensive but undefined people-to-people umbrella:

OFAC may issue a specific license to an organization that sponsors and organizes programs to promote people-to-people contact authorizing the organization and individuals traveling under its auspices to engage in educational exchanges not involving academic study pursuant to a degree program. In general, licenses issued pursuant to this policy will be valid for one year and will contain no limitation on the number of trips that can be taken. (p 22)

Will we soon see the return of a wide range of informational programs allowed before President Bush's crackdown of 2004?

...third party student exchanges, high schools, educators of the retired, college alumni, world affairs councils, museums, chambers of commerce, Rotary Clubs, farm organizations, sports teams, community groups, professional associations, foundations, NGOs, doctors, environmentalists, artists, architects, etc.

While general licenses avoid the contradiction between trust building exchanges and system change politics, specific licenses could by granted based on which goal is foremost. The core problem is illustrated by this revealing paragraph:

Meeting all of the relevant specific licensing criteria in a given section does not guarantee that a specific license will be issued, as foreign policy considerations and additional factors may be considered by OFAC in making its licensing determinations....specific licenses are not granted as a matter of right. (p 4)

As we saw with the denial of a license for Irish American traditional musicians to participate in last week's Celtic Festival in Havana, even the performances criteria can be arbitrary and unfathomable.

The test is how promptly and how flexibly OFAC handles applications that have been piling up since January from groups that were licensed during the Clinton administration.

The guidelines text itself embodies contradictions that arise from a narrow politicized interpretation of purposeful travel. They are most flagrant in Humanitarian Projects. Some kinds of charity are OK; some are not; collegiality and sharing of skills are outlawed.

"Potentially licensable under current policy

Example 2: A U.S. group of medical professionals that specializes in the treatment of HIV/AIDS wishes to support a community in Cuba by providing the latest techniques and literature in HIV/AIDS education and prevention directly to the Cuban people.

Normally not licensable under current policy

Example 4: A group of doctors wish to provide medical training to Cuban healthcare professionals. Travel-related transactions in connection with providing medical training of professionals would not be licensed under this licensing policy." (p 37)

A popular channel for humanitarian assistance has also been proscribed:

Example 2: A U.S. humanitarian organization wants a license to travel to Cuba to provide humanitarian aid and will solicit participation by any interested persons under such a license. The travelers would not be affiliated with the organization except for the purpose of travel to Cuba under the license and the travelers will purchase the humanitarian aid that will be donated.

Hidden away in Section XII, "Licensed Exportations", is this complete non-sequitur

"Normally not licensable under current policy

Example 1: City officials wish to travel to Cuba to establish a sister city relationship with government officials of a Cuban city or province. Travel to Cuba for this purpose is not within the scope of current licensing policy." (p 47)

What could be more conducive to people to people relationships than a sister city partnership?

The poison pill can be found in the original presidential announcement. Purposeful travel was justified to "help promote their [the Cuban peoples'] independence from Cuban authorities." The normal fundamental goal of bilateral exchanges, mutual understanding and trust building, is undermined by the ideology of system change.

At least two college trips are already set for the summer. Hopefully OFAC starts the ball rolling in a timely and positive fashion so people to people programs can also be underway quickly.

Sufficient progress won't come unless the White House includes in its response to the eventual release of Alan Gross the shift of all categories of non-tourist travel into general licenses and elimination of the licensed monopoly of Travel Service Providers, three-fourths of whom are located in Florida.

John McAuliff
Fund for Reconciliation and Development

Links and Resources

Cuba's annual trade show for tour operators and travel agents from Canada, Europe and Latin America is the International Tourism Fair in Havana May 2-5. A focus this year is joint destination travel with Mexico.
http://www.fitcuba.com/index.php?option=com_content&view=article&id=89&Itemid=199

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Overview flyer "Who Can Go to Cuba Now?" http://cubapeopletopeople.blogspot.com/2011_03_01_archive.html

Text of OFAC April 19 guidelines
http://www.treasury.gov/resource-center/sanctions/Programs/Documents/cuba_tr_app.pdf

Analysis and Critique of Guidelines
http://cubapeopletopeople.blogspot.com/2011/04/preliminary-analysis-of-ofac-travel.html

Text of January 28 regulations
http://www.treasury.gov/resource-center/sanctions/Programs/Documents/fr76_5072.pdf

Analysis of regulations
http://cubapeopletopeople.blogspot.com/2011/02/detailed-legal-analysis-of-new.html

Text of January 14 Presidential announcement
http://cubapeopletopeople.blogspot.com/2011/01/executive-order-of-president-on-travel.html

Analysis of announcement
http://cubapeopletopeople.blogspot.com/2011/01/legal-analysis-by-robert-muse.html
http://cubapeopletopeople.blogspot.com/2011/01/analysis-of-executive-order-1-john.html